U.S. v. Berki, 90-5183

• Decision Date: 23 July 1991
• Docket Number: No. 90-5183,90-5183
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph Otto BERKI a/k/a Joseph Berkowitz, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 529

936 F.2d 529

UNITED STATES of America, Plaintiff-Appellee, v. Joseph Otto BERKI a/k/a Joseph Berkowitz, Defendant-Appellant.

No. 90-5183.

United States Court of Appeals, Eleventh Circuit.

July 23, 1991.

Theodore J. Sakowitz, Federal Public Defender, Alison M. Igoe, Asst. Federal Public Defender, Miami, Fla., for defendant-appellant.

Diane T. deRosset, Linda C. Hertz, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, Chief Circuit Judge, DUBINA, Circuit Judge and HENDERSON, Senior Circuit Judge.

PER CURIAM:

Joseph Otto Berki appeals his convictions in the United States District Court for the Southern District of Florida on one count of threatening to assault and two counts of threatening to murder a federal judge in violation of 18 U.S.C.A. section 115(a)(1)(B) (West Supp.1990). On appeal, he urges that the government failed to prove that he knew the intended victim of his threats was a federal judge, a necessary element of proof of the crimes alleged in the indictment. Because we find that the government was not required to make such a showing, we affirm the convictions.

I.

On August 10, 1989, a grand jury of the United States District Court for the Southern District of Florida returned an indictment against Berki for making threats against United States District Judge Lenore Nesbitt. Count I charged that he threatened to assault the judge with the intent to impede, intimidate, interfere with or retaliate against the judge on account of the performance of her official duties in violation of 18 U.S.C.A. section 115(a)(1)(B) and section 115(b)(1), (4) (West Supp.1990). In Counts II and III, he was accused of threatening to murder the same judge in an effort to impede or retaliate against her in the performance of her official duties in violation of the same statute. Berki was tried before a jury and convicted of all three counts. He was sentenced to concurrent 33-month terms of imprisonment on each count, and a three-year term of supervised release thereafter.

II.

Berki's troubles began when a California corporation filed suit against him for trademark infringement in the District Court for Southern District of Florida, Miami Division, on May 3, 1989. The California corporation, Den-Mat Corporation, was represented by Hugh Jaeger, a patent and trademark attorney, from Minneapolis, Minnesota. When efforts to persuade Berki to cease using the Den-Mat trademark failed, Jaeger associated the Miami law firm of Kimbrell & Haman as local counsel and directed Carol Fenello of that firm to file suit for trademark infringement against Berki in the federal district court in Miami. Thereafter, the case was assigned to Judge Nesbitt. Jaeger received several telephone calls from Berki soon after being served with a copy of the complaint. Jaeger told Berki that he could not discuss the pending litigation with him but that he would speak with Berki's attorney. During these calls, Berki sometimes used the name Berkowitz, and on other occasions, used other aliases. He promised to stop using the trademark if Jaeger would pay him for the expense of reprinting his sales literature.

Berki failed to cooperate with discovery efforts and after the time had expired for responsive pleadings, Jaeger, through his Miami counsel, moved for a default judgment. The motion was granted in July of 1989 by Judge Nesbitt and a default judgment was entered against Berki and Den-Mat Laboratories of Florida, his Miami business operation. A copy of the final judgment was posted on the door of Berki's business and he was also personally served with a copy of the final judgment.

Shortly after Judge Nesbitt heard argument on the default judgment, Jaeger retrieved a recorded telephone message from his answering machine by a person whose voice he recognized as that of Berki. It appears from the record that Berki was extremely angry about the lawsuit. On August 2, 1989, Jaeger received another phone call from Berki in a bitter response to the default judgment. On the same day at approximately 10:25 a.m. Berki telephoned the chambers of Judge Nesbitt and spoke with her secretary, Joan O'Toole, and asked to speak with the judge. According to O'Toole, Berki was upset and extremely angry. When she informed Berki that he could not speak with the judge, Berki told her that the next person who tried to serve him with any legal documents or post notices on his property would "be dead, you know dead." R4-134. He also told the secretary that he was going to take the papers and "cram them up his ass," ¹ referring to Judge Nesbitt. R4-135. When O'Toole attempted to terminate the call, Berki told her that she had not heard the last of him. Id.

At approximately 11:00 a.m., on the same day, Berki called the law firm of Kimbrell & Haman and spoke with Maria Martinez, a receptionist in the office. Again Berki was extremely angry and belligerent. In an effort to identify the case Berki was referring to, she asked him to look at the signature at the bottom of the page of the court document, to which Berki responded, "Lenore Nesbitt." He then stated that he was going to "get a gun and shoot him or her." R4-88, 93.

Martinez was able to ascertain the name of the attorney handling the case and transferred the call to Fenello. Berki had identified himself to Martinez as Berkowitz, but when Fenello came on the line he said his name was George Myles. While talking to Fenello he threatened the judge again. This time Berki explained that he either operated or once operated a business that employed convicted felons. He related that one of the men had been convicted of killing his mother and that he had just been released from prison. He told Fenello that if his friend found out about all of this the judge would "get it." R4-120, 123.

Later that day Joan O'Toole, Judge Nesbitt's secretary, alerted the United States Marshall's Service of the threat, which in turn, called the Federal Bureau of Investigation. During the same afternoon, the Kimbrell & Haman law firm also notified the FBI of the threats made against the judge. The next day, on August 3, 1989, after Berki admitted to making the phone calls, he was arrested at his home.

III.

The essence of Berki's appeal is that the court erred in failing to charge the jury that knowledge of the identity of his victim as a federal judge was an essential element of the crime defined in 18 U.S.C.A. section 115(a)(1)(B) (West Supp.1990). Section 115(a)(1)(B) states in pertinent part:

(a)(1) Whoever--

(B) threatens to assault, kidnap, or murder, a United States official, a United States judge, a Federal law enforcement officer, or an official whose killing would be a crime under such section, with intent to impede, intimidate, or interfere with such official, judge, or law enforcement officer while engaged in the performance of official duties, or with intent to retaliate against such official, judge, or law enforcement officer on account of the performance of official duties, shall be punished as provided in subsection (b).

Id.

The district court instructed the jury that, as a matter of law, it was not necessary for the government to prove that the defendant "knew" he was threatening a judge. ² We note first that Berki did not object to the court's jury charge. Failure to object to a jury instruction is reversible error only if it was so egregious as to constitute plain...