U.S. v. Berndt

• Decision Date: 07 October 1997
• Docket Number: D,No. 669,669
• Parties: UNITED STATES of America, Appellee, v. Ralph BERNDT, Defendant-Appellant. ocket 97-1319.
• Court: U.S. Court of Appeals — Second Circuit

Page 251

127 F.3d 251

UNITED STATES of America, Appellee, v. Ralph BERNDT, Defendant-Appellant.

No. 669, Docket 97-1319.

United States Court of Appeals Second Circuit.

Argued Aug. 29, 1997.

Decided Oct. 7, 1997.

Richard P. Maigret, Assistant United States Attorney, Buffalo, NY (Patrick H. NeMoyer, United States Attorney for the Western District of New York, on the brief), for Appellee.

John Humann, Buffalo, NY (Marybeth Covert, Federal Public Defender's Office, Buffalo, NY, on the brief), for Defendant-Appellant.

Before: KEARSE and McLAUGHLIN, Circuit Judges, and TRAGER, District Judge ^*.

KEARSE, Circuit Judge:

Defendant Ralph Berndt appeals from a judgment entered in the United States District Court for the Western District of New York following his plea of guilty before William M. Skretny, Judge, convicting him of transmitting threatening communications in foreign commerce, in violation of 18 U.S.C. § 875(c) (1994), and sentencing him principally to 18 months' imprisonment, to be followed by a three-year term of supervised release. The sentence included an enhancement pursuant to § 2A6.1(b)(1) of the federal Sentencing Guidelines ("Guidelines") on the ground that Berndt had engaged in conduct evidencing an intent to carry out his threats. On appeal, Berndt contends principally that the enhancement was improper because the district court failed to hold a hearing to resolve disputed factual allegations, and because the evidence to support the enhancement was insufficient. He also contends that the court improperly relied on a letter from the victim of his threats that was not disclosed to him prior to sentencing. Finding no basis for reversal, we affirm.

I. BACKGROUND

Berndt, a citizen of Germany, came to the United States seeking employment in the summer of 1995. While here, he became romantically involved with Gina Grisanti, a resident of Amherst, New York, who eventually became the victim of his threatening transatlantic calls. Most of the events are not disputed.

A. The Threatening Calls and the Arrest of Berndt

In early 1996, shortly before a brief return to Germany, Berndt spent approximately three weeks at Grisanti's home. In March 1996, Berndt came back to the United States and moved into Grisanti's home, where the couple lived for approximately four months. By summer, the relationship had deteriorated. On June 29, the local police were called to handle a domestic dispute between the two, and Grisanti ordered Berndt to move out of her house. Law enforcement officials soon determined that Berndt's visa had expired, and they instructed him to leave the United States by July 8.

Shortly after his return to Germany in July, Berndt began placing numerous telephone calls to Grisanti at her home and office, urging her to renew their relationship and asking her to come stay with him in Germany. When she refused, Berndt began to make threatening statements. On August 8, Grisanti filed a complaint with the local police, alleging that during the preceding week, Berndt had threatened to rape and kill her. Grisanti recorded four such conversations, including statements by Berndt that he would "take [Grisanti's] daughter away from [her]" and that he would "beat [Grisanti] up" and rape her. In one such call, after Grisanti made clear that she had no intention of going to Germany, Berndt said:

Okay. Gina next week I'll be here. Hide. Hide Gina. I get you, believe me. This is my last word. I ta[ke] all away from you, all. I'm sick of you.

During another of Berndt's tape-recorded calls, he spoke to Grisanti's former husband Michael Sweeney, telling him, "I have nothing to lose, Mike, I tell you this right now.... I buy me a ticket, I come and I kill her."

On October 4, Berndt returned to the United States. Two days later, shortly before midnight, Grisanti heard noises outside her bedroom window and called Sweeney, asking that he come to investigate. When Sweeney arrived, he found Berndt in Grisanti's fenced-in backyard and confronted him. Berndt said he had come merely to retrieve belongings he had left behind; he then left Grisanti's backyard, and Sweeney pursued him by car. Meanwhile, Grisanti called the police, who arrested Berndt a few blocks from Grisanti's home. The police report indicated that the officers found in Berndt's possession, inter alia, photographs, a ring, and three pairs of ladies' stockings. Grisanti told the police that all of the seized items had been taken from her home without her permission.

A federal information was filed, charging Berndt with transmitting in foreign commerce threats to injure another person, in violation of 18 U.S.C. § 875(c). Berndt entered into a plea agreement with the government in which he admitted that

[o]n or about August 1, 1996, the defendant, RALPH BERNDT, willfully, knowingly and unlawfully made several telephone calls to a Ms. Gina Grisanti, at her home telephone and at her private telephone line at her place of business, both of which are in the Western District of New York. During these telephone calls, the defendant, on several occasions during the conversation, threatened to return to the United States and to "beat up", to rape, and to kill Ms. Grisanti. At this time, the defendant also threatened to have Ms. Grisanti injured by other persons, in that he alleged that he had hired two individuals in Buffalo, N.Y. to harm her and further that he had given them the sum of $1,000.00 in return for their severely injuring her.

(Plea Agreement dated December 17, 1996, p 5(a).) Berndt also admitted that these calls were made to Grisanti from Germany. (Id. p 5(b).)

In addition, Berndt was charged in state court with two misdemeanors, to wit, criminal trespass in the second degree and criminal possession of stolen property in the fifth degree. His plea of guilty to those charges included the following colloquy:

Q [THE COURT]. In your own words, Ralf [sic ], tell me what you did, start with the date, I have that as being October 7 of '96, as far as stealing some socks, stockings, a ring. I didn't hear about that. I heard about photos.

A [BERNDT]. Yeah, it was in my possession. I was at the house at this date.

Q. What day did this happen on?

A. It was from 6--from October 6th and October 7th.

Q. Okay. October 6th to October 7th, so you possessed some stolen property, some stockings, a ring owned by Gina Grisanti?

A. Yes.

Q. And your intention was to keep them for yourself and deny her possession?

A. Yes.

Q. And you--did you enter unlawfully into her dwelling to obtain this property, apparently?

A. Yeah. I was on the property. That's right.

Q. You did enter into her property?

A. Yeah.

Q. No permission?

A. No.

People v. Berndt, Ind. No. 96-2414-000 (N.Y.Sup.Ct. Jan. 13, 1997).

B. The Federal Sentencing Proceedings

The presentence report ("PSR") prepared on Berndt noted that the base offense level for transmitting threatening communications is 12, and it recommended a six-step increase on the ground that Berndt had engaged in "conduct evidencing an intent to carry out [his] threat[s]," Guidelines § 2A6.1(b)(1). In describing Berndt's offense, the PSR stated principally that in the summer of 1996, Berndt had made numerous calls to Grisanti; that those calls included repeated threats to "beat up, rape, and kill" Grisanti; and that Berndt told Grisanti he had hired people to injure her. (PSR pp 5-6.) In support of the recommended enhancement, the PSR added that after escalating the frequency of his threats, Berndt had traveled from Germany to New York; that at approximately 1 a.m. on October 7, 1996, he was arrested on charges of criminal trespass and burglary after prowling around Grisanti's residence; and that at the time of his arrest, he had personal items belonging to Grisanti in his car. (PSR p 20.) The PSR noted Berndt's position that he had not come to harm Grisanti but only to retrieve his belongings from her.

The government informed the court that it agreed with the PSR's recommendations. Berndt submitted objections entitled Statement of Defendant with Respect to Sentencing Factors dated March 4, 1997 ("Berndt First Statement"). While he did not deny any fact stated in p 20 of the PSR except the assertion that when arrested he had property belonging to Grisanti in his possession, he argued that there were no facts alleged in the PSR to support an inference that he was "doing something to carry out his threats." (p 6.) He also stated as follows:

Paragraph 12 [of the PSR] states that the defendant broke into Ms. Grisanti's residence. The defendant denies this allegation. She says he took items that belonged to her. The defendant denies this allegation, as well. Even if the allegations were true, such action does not evidence an intent to harm Ms. Grisanti. Such activity is consistent with Mr. Berndt's desire to get back his personal belongings.

(Id. p 8.) Berndt stated that, "[s]imply put," he had "never engaged in conduct evidencing an intent to carry out any threat against Gina Grisanti," and he therefore "t[ook] issue with Paragraph 20, which recommend[ed] a six level increase in the Offense Level." (Id. p 1.) He urged the district court not to reject his proffered explanation without a hearing.

The government filed a memorandum in response to Berndt's objections, setting out a detailed description of the conduct in which Berndt allegedly had engaged, including the following:

On Sunday evening, October 6, 1996, the victim was at her residence with her nine-year old daughter. Shortly before midnight the victim, who was in her bed, heard noises at her bedroom window, as if someone was attempting to remove the screen. As the victim was extremely nervous as a result of the defendant's previous threatening phone calls to her, she called her ex-husband, Michael Sweeney, and requested that he come over to her house. A short time later she heard her ex-husband yell to someone in the backyard, immediately outside her bedroom...