United States v. Bernhardt

• Decision Date: 12 September 2018
• Docket Number: No. 17-1325,17-1325
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Calvin BERNHARDT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

903 F.3d 818

UNITED STATES of America, Plaintiff-Appellee,

v.Calvin BERNHARDT, Defendant-Appellant.

No. 17-1325

United States Court of Appeals, Eighth Circuit.

Submitted: February 15, 2018

Filed: September 12, 2018

Counsel who presented argument on behalf of the appellant and appeared on the appellant brief was Steven R. Morrison, of Grand Forks, ND.

Counsel who presented argument on behalf of the appellee and appeared on the appellee brief; was Gary Lee Delorme, AUSA, of Bismarck, ND.

Before SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges.^*

COLLOTON, Circuit Judge.

A jury convicted Calvin Bernhardt of several federal offenses: attempted exploitation of a child, attempted receipt of images depicting sexual exploitation of a child, possession of counterfeit obligations, two counts of attempted witness tampering, and attempted travel with intent to engage in illicit sexual conduct. The district court sentenced Bernhardt to a total of 600 months' imprisonment. On appeal, Bernhardt challenges four counts of conviction and argues that his sentence is substantively unreasonable. We reject all of Bernhardt's challenges to the convictions but one: we conclude that there is insufficient evidence to support his conviction for attempted travel. We therefore remand for resentencing based on the remaining five counts of conviction.

I.

According to the evidence at trial, in July 2015, Bernhardt began communicating with a woman in the Philippines with the initials J.O.B. The two communicated primarily through Facebook Messenger, the social network's online chat service, but they also sent each other e-mails and spoke by telephone. During their conversations, J.O.B. told Bernhardt that she needed financial support. She also told him that she had a teenage daughter named L.O.B.

Bernhardt first contacted L.O.B. directly in November 2015 using Facebook Messenger. L.O.B. told Bernhardt that she was fourteen years old; despite her youth, Bernhardt asked L.O.B. to send him nude images of herself. Bernhardt told L.O.B. that if she did what he wanted, he would help J.O.B. financially.

At first, L.O.B. refused, telling Bernhardt, "You are bad guy" and "No thanks. I help my mother. I work hard too and I will continue my study." But Bernhardt persisted, offering L.O.B. 10,000 Philippine pesos (approximately $200) in exchange for the images. Eventually, L.O.B. acquiesced and sent Bernhardt several nude pictures of herself through Facebook Messenger.

During his conversations with J.O.B. and L.O.B., Bernhardt discussed traveling to the Philippines to have sex with L.O.B. at a hotel in Manila. He told J.O.B. that he wanted her to bring L.O.B. to a hotel to meet him, and he told L.O.B., "You and I will do things together at the hotel." He offered L.O.B. "25,000 php for one week at the hotel.... Anything goes," and told her, "You and I are going to play games.... Sexxxx games." Bernhardt later told investigators that his communications about traveling to the Philippines were just "smoke and mirrors," and investigators found no evidence that Bernhardt purchased a plane ticket for travel to the Philippines or reserved a hotel room there.

Law enforcement became aware of Bernhardt's communications with L.O.B. in February 2016. Facebook, Inc., had notified the National Center for Missing and Exploited Children of a possible instance of enticement of children for sexual acts. Investigators traced the messages to Bernhardt's residence in Tuttle, North Dakota.

Law enforcement agents then executed a search warrant at Bernhardt's residence. From the basement, agents seized Western Union receipts for money that Bernhardt sent to J.O.B. in the Philippines, numerous electronic devices, and $34,640 in suspected counterfeit U.S. currency located in a cupboard in the bathroom. The agents who examined the money explained that some of the bills were printed on only one side; some were printed on both sides using thick paper or card stock; and some were printed on both sides using paper that was "not as thick, but probably more consistent with our currency." Special Agent Trudell of the Department of Homeland Security testified that the variance in thickness of the paper used to print the bills demonstrated a progression in technique and was consistent with an effort to perfect the bills. The currency also bore legitimate serial numbers corresponding to genuine currency.

In an interview with investigators, Bernhardt discussed the origin of the fake money. He told investigators that he and his cousin were "just goofing around one day" and created the money by taking pictures of real bills or scanning them, printing the images onto paper, and then cutting the paper into the shape of bills using a paper cutter. Bernhardt stated that his cousin suggested that they keep the money for "board games, like Monopoly," or for poker between the two of them, and denied ever passing the bills.

Bernhardt was arrested and charged with attempted exploitation of a child in violation of 18 U.S.C. § 2251(a) and (e), attempted receipt of images depicting sexual exploitation of a child in violation of 18 U.S.C. § 2252(a)(2) and (b)(1), possession of counterfeit obligations in violation of 18 U.S.C. § 472, and attempted travel with intent to engage in illicit sexual conduct in violation of 18 U.S.C. § 2423(b) and (e).

After his arrest, while he was released pending trial, Bernhardt contacted J.O.B., who had become a witness in the investigation. Twice he wrote to J.O.B., using a nickname for her daughter L.O.B.:

Sweetheart, there is a police investigation going on right now concerning my conversation with princess. If anyone from the police contacts you or princess, do not answer any questions. You don't know me. It’s for all of our best interest. They are looking for human trafficking and child porn.

In a separate message, Bernhardt told J.O.B. to "make sure princess doesn't talk to anyone and delete any nude pics of her or me, ok?" After law enforcement discovered these communications, the grand jury charged Bernhardt with two counts of attempted witness tampering, in violation of 18 U.S.C. § 1512(b)(2) and (b)(3).

Bernhardt pleaded not guilty to the six-count superseding indictment. After a three-day trial, a jury convicted Bernhardt of all six counts. The court sentenced him to 600 months' imprisonment.

II.

A.

Bernhardt first challenges his conviction for possession of counterfeit obligations in violation of 18 U.S.C. § 472, arguing that the evidence presented at trial was insufficient to support the jury's guilty verdict. "We review the sufficiency of evidence supporting a conviction de novo , viewing all evidence in the light most favorable to the verdict." United States v. Wilder , 597 F.3d 936, 943 (8th Cir. 2010). We will overturn the jury’s verdict "only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt." Id.

Section 472 makes it a crime for a person to possess "with intent to defraud" a "counterfeited ... obligation ... of the United States." Although Bernhardt admits that he possessed the money found in his bathroom cupboard, he contends that the government failed to present sufficient evidence of his intent. He claims that he never circulated the money and argues that it was so obviously fake that no reasonable jury could infer an intent to defraud. Intent to defraud "cannot be proved by a showing of possession or passing alone," but it may be inferred from other circumstances. United States v. Armstrong , 16 F.3d 289, 292 (8th Cir. 1994).

The evidence at trial showed that Bernhardt kept the fake currency in a bathroom cabinet in the basement, away from his other possessions. The "segregation of counterfeit bills from genuine bills" is one recognized indicia of intent to defraud. Id. Federal agents also explained that Bernhardt's use of paper of different thicknesses demonstrated a progression in his technique, consistent with an intent to perfect the printed currency. The jury, of course, was not required to credit Bernhardt's exculpatory explanation for the bills. Viewing the evidence in the light most favorable to the verdict, we conclude that the government presented sufficient evidence of Bernhardt's intent.

Bernhardt also argues that the government failed to prove that the currency was "counterfeit." Section 472 does not define the term "counterfeit," but courts have applied the so-called "similitude test" to determine whether the currency qualifies as "counterfeit." United States v. Hall , 801 F.2d 356, 357-58 (8th Cir. 1986) (collecting cases). This test dates to a jury instruction given by Judge Henry Clay Caldwell (later, the first chief judge of the Eighth Circuit) in the Eastern District of Arkansas during the nineteenth century. See id. at 357 & n.3 ; United States v. Kuhl , 85 F. 624, 631 (S.D. Iowa 1898) ; Richard S. Arnold & George C. Freeman, III, Judge Henry Clay Caldwell , 23 UALR L. Rev. 317, 317 (2001). Under this approach, currency is "counterfeit" if it "bears such a likeness or resemblance to one of the genuine bonds of the United States as to be calculated to deceive an honest, sensible, and unsuspecting man of ordinary observation and care, dealing with a man supposed to be honest." Hall , 801 F.2d at 357 n.3. The district court gave an equivalent instruction in this case. R. Doc. 63, at 19.

Bernhardt contends that no reasonable jury could find that the money was counterfeit because many of the bills were printed on only one side using paper that was either too thick or too thin. The Ninth Circuit, he notes, once reversed a conviction under § 472 where notes were printed on "poor paper" and only on one side. See United States v. Johnson , 434 F.2d 827, 829 (9th Cir. 1970). But according to testimony from an investigator in this case, at least some of Bernhardt's money was printed on both sides using paper that was "more consistent with our currency." The bills also bore legitimate serial numbers. From this evidence, a...