652 F.3d 132 (1st Cir. 2011), 09-2472, United States v. Berk

Docket Nº:09-2472.
Citation:652 F.3d 132
Opinion Judge:HOWARD, Circuit Judge.
Party Name:UNITED STATES of America, Appellee, v. Michael A. BERK, Defendant, Appellant.
Attorney:Jeanne M. Kempthorne for appellant. Margaret D. McGaughey, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.
Judge Panel:Before BOUDIN, STAHL and HOWARD, Circuit Judges.
Case Date:July 27, 2011
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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652 F.3d 132 (1st Cir. 2011)

UNITED STATES of America, Appellee,

v.

Michael A. BERK, Defendant, Appellant.

No. 09-2472.

United States Court of Appeals, First Circuit.

July 27, 2011

Heard Dec. 8, 2010.

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Jeanne M. Kempthorne for appellant.

Margaret D. McGaughey, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

Before BOUDIN, STAHL and HOWARD, Circuit Judges.

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HOWARD, Circuit Judge.

In December 2008, a grand jury in the District of Maine charged Michael Berk with two counts of attempting to entice a minor to engage in sexual conduct and one count of possession of child pornography. Berk pled guilty to the pornography charge, and he was convicted of the two child enticement charges after a bench trial. He was sentenced to 200 months in prison. Two claims are pressed on appeal. First, Berk argues that the indictment was defective because it lacked an element of the crime charged. Second, he argues that the evidence presented at trial was legally insufficient to convict him. We affirm.

I.

The facts, though disturbing, are not greatly disputed. Regardless, because Berk challenges the sufficiency of the evidence, we recount them in some detail, and in the light most favorable to the verdict. United States v. Dwinells, 508 F.3d 63, 65 (1st Cir.2007).

A. Ashley Dame

On the morning of August 28, 2008, police in Biddeford, Maine received a complaint from twenty-three year old handyman Ashley Dame, then a father of four living in Biddeford. Dame recounted the following chain of events. Earlier that day, he had solicited employment on Craigslist, the internet-based classified advertisement service. The ad he posted read:

looking for small odd jobs I am a father of 4 currently out of work looking for the following yard maint, drywalling, painting, firewood cutting splitting and stacking or anything else u may have for me willing to barter or accept cash I have referances and reasonable rates or tell me what ya got for me to do and what u are willing to barter for the work to get done plz be in the biddeford saco oob [presumably Old Orchard Beach] area thanks and hope to meet u soon.

Soon after, Dame received an email from the address " mbmathy@ yahoo. com" (" mbmathy" ) inquiring " How old are the kids? Will you rent any of them out?" 1 Dame replied that his children's young age was why he was looking for work, and that he " didn't put them on here to do it." A few minutes later, mbmathy wrote, " Yeah, I didn't know how young so I thought I'd ask if you would consider making money that way— thanks for the response." This exchange ensued 2:

Dame (11:26 AM): what do you mean rent them out?

mbmathy (11:28 AM): Well how old are they? If they're too young to do anything it doesn't matter anyway:)

Dame (11:30 AM): yeah they are too young for that u do mean like work and whatnot right? if u have anything i will do it.

mbmathy (11:31 AM): it depends— how old are they? Boys or girls?

Dame (11:32 AM): have a 12 yr old daughter and my sons are younger 3

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mbmathy (11:40 AM): OK and you say you don't want her doing anything for cash, only you?

Dame (11:41 AM): yeah i am looking for what i said odd jobs such as painting yard maint cutting and splitting wood etc maybe other things let me know what u have

mbmathy (11:43 AM): Paid oral training is what I'm looking for, stuff along those lines. It pays a lot more than regular odd jobs but as you know it isn't for everyone.

Dame (11:43 AM): what is it that u are talking about?

mbmathy (11:47 AM): It's worth a lot of money to me to be able to train a girl how to give head, or anything along those lines (I'm flexible and open-minded) as long as it's discreet. Like I said most people would just turn an opportunity like this away and that is fine, but it's not like I can just go up to people and ask.

So, I totally understand that it's not what you posted for and it probably isn't something you're willing to consider, but if you'd like to talk about it let me know. As I mentioned it's worth a lot more than yard work.

Dame (11:49 AM): where are you located?

mbmathy (11:51 AM): On the ME/NH border.. not too close-by but it's not across the state either.. What do you think?

Dame called the police at 11:53 AM. A police dispatcher had Dame forward copies of the email exchange to her, sent an officer to Dame's house and notified a detective. The responding officer, noting the tenor of mbmathy's messages, also contacted the department detective who investigated sex crimes. After taking Dame's statement and getting his agreement to assist, the officer directed Dame to call the dispatcher, who instructed Dame about how to " continue the conversation."

At 12:14 PM, roughly twenty-three minutes after his last email to Dame, mbmathy messaged, " Is that a no?" Now following the direction of police, Dame responded at 12:32 PM: " am thinking about it can you give me a little more info on this?" Mbmathy provided this detail at 12:43 PM: " I'm looking for something that would happen on an ongoing/regular basis, which would put hundreds of dollars in your pocket depending on what you could offer, availability, etc." He also said that he couldn't be more specific about money " without knowing more details about what [Dame] can offer."

The final email was sent at 2:30 PM. The two men— with Dame being guided by police— eventually agreed to meet at a Dunkin Donuts near the Portland airport at 5:30 PM. Mbmathy told Dame that he would be driving a white Pontiac. Dame said that he would arrive in a pick-up truck. In fact, the truck was one that was used by the Maine State Police for undercover work. Sergeant Dale York was assigned to impersonate Dame, wear a recording device and drive the truck to meet mbmathy. Other officers maintained visual surveillance and monitored the recording device.

Shortly after York arrived at the meeting place, a black Volkswagen arrived in the parking lot. Although York was expecting a white Pontiac, he became suspicious when the driver— later determined to be Berk— walked by York's truck several times. Finally, the man approached the truck and asked York if he was waiting for a white Pontiac.4 After an exchange of

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first-name introductions, Berk, satisfied that he was meeting with Dame, cut to the chase. He expressed his interest in having oral sex with the 12-year old daughter, assured York that he would not hurt the girl, and said that he would cover any travel expenses. When York pressed Berk for a price, Berk offered $100 per night for oral sex up to $300 per week and added " if there's any more that can happen then it will be more." Berk also asked how York thought his " daughter" " is going to react to this" and whether York was " going to help this out."

They agreed that future contact...

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