United States v. Berg
2011 U.S. App. LEXIS 6816
| 7th Cir. | 2011Background
- Berg was convicted of attempting to persuade, induce, or entice a minor to engage in sexual activity (§ 2422(b)) and also of possessing, receiving, and distributing child pornography, with a 124‑month sentence on § 2422(b) and 120 months concurrent on the other counts.
- An undercover operation used a 'Carrie' persona—sixteen years old—via AOL/MySpace; Berg engaged in extensive sexualized chats and proposed meetings.
- Berg traveled to meet Carrie (November 11 meeting) and was arrested; he gave a Miranda waiver and spoke with officers, describing his intended actions and prior online encounters with minors.
- A written statement, prepared by an ASA, summarized Berg’s chats and admitted he would have performed oral sex with Carrie had she appeared; Berg later challenged its credibility.
- Kati, a former minor, testified that Berg had sexual contact with her starting when she was under seventeen, and Berg admitted past sexual activity with a minor and distributing related images.
- The district court addressed a defense objection to prosecutorial remarks in closing; Berg was sentenced under the mandatory minimum for § 2422(b) and a concurrent sentence for the others, prompting this appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of § 2422(b) attempt. | Government asserts extensive chats and meeting attempts show intent to persuade a minor to engage in sex. | Berg contends lack of proof that he intended to engage in sexual activity on the November 11 meeting date. | Conviction affirmed; intent to persuade/entice suffices, not required to prove completed sex. |
| Prosecutorial misconduct in closing. | Remarks about the ASA’s credibility were proper to rebut defense theory. | Improper remarks denied Berg a fair trial. | Remarks viewed in context did not deny a fair trial. |
| Intent standard under § 2422(b) for attempt. | Intent to persuade/entice a minor is enough; underlying sexual act need not be intended. | Should require intent to engage in sexual activity with the minor. | Statute criminalizes attempting to persuade/entice, not necessarily the sex act; intent to entice suffices. |
| Unwarranted sentencing disparities under § 3553(a)(6). | District court must consider disparities and justify sentence. | Below-Guidelines sentence plus mandatory minimum violates § 3553(a)(6). | Sentence deemed reasonable with proper consideration of disparities; presumption of reasonableness applied. |
Key Cases Cited
- United States v. Coté, 504 F.3d 682 (7th Cir. 2007) (requires showing of substantial step and intent in § 2422(b) attempted offenses)
- United States v. Gladish, 536 F.3d 646 (7th Cir. 2008) (discusses substantial step and intent in § 2422(b) cases)
- United States v. Hensley, 574 F.3d 384 (7th Cir. 2010) (grooming and intent to meet can support substantial step)
- United States v. Bailey, 228 F.3d 637 (6th Cir. 2000) (conviction under § 2422(b) requires intent to persuade, not necessarily to commit the act)
- United States v. Lee, 603 F.3d 904 (11th Cir. 2010) (intent to cause assent, not to perform sex act, suffices for § 2422(b))
- United States v. Goetzke, 494 F.3d 1231 (9th Cir. 2007) (emphasizes § 2422(b) targets persuasion/enticing rather than sex act itself)