United States v. Berk
2011 U.S. App. LEXIS 15501
1st Cir.2011Background
- Berk was charged in the District of Maine with two counts of attempting to entice a minor to engage in sexual conduct and one count of possession of child pornography; he pled guilty to the pornography charge and was convicted on the enticement counts after a bench trial.
- The government moved forward on a superseding indictment alleging 18 U.S.C. § 2422(b) violations, asserting use of interstate commerce to persuade a minor to engage in sexual activity.
- Berk challenges the indictment as legally defective for failing to name a specific underlying offense that would be violated by the enticement, and he contends the evidence at trial was insufficient.
- The case centers on two online sting interactions: with Ashley Dame (a potential job seeker with a 12-year-old daughter) and with Dorothy Jensen (a woman advertising a home, with a 12-year-old daughter).
- Police, with Dame’s cooperation and undercover surveillance, monitored Berk’s meeting arrangements and recorded his explicit propositions regarding sex with a minor.
- The district court and Berk engage in post-indictment briefing and trial motions; Berk ultimately challenges both the indictment’s notice and the sufficiency of the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the indictment sufficiently informs Berk of the charged offense | Berk argues the indictment lacks the underlying offense element. | Berk contends the indictment fails to name a specific state or federal crime as the basis. | Indictment is sufficient; any error is harmless. |
| Whether the evidence proves Berk attempted to persuade a minor to engage in sexual activity | Dwinells-type standard supports sufficiency; communications with adults can support an attempt. | Berk claims evidence shows only preparation, not a substantial step toward a minor’s assent. | Evidence was sufficient to sustain convictions. |
Key Cases Cited
- United States v. Cianci, 378 F.3d 71 (1st Cir. 2004) (indictment sufficiency standards)
- United States v. Brown, 295 F.3d 152 (1st Cir. 2002) (indictment must state essential facts)
- United States v. Dwinells, 508 F.3d 63 (1st Cir. 2007) (standard for reviewing sufficiency of evidence)
- United States v. Lnu, a/k/a Oshunkey, 544 F.3d 361 (1st Cir. 2008) (sufficiency and nexus considerations in enticement cases)
- United States v. Mojica-Baez, 229 F.3d 292 (1st Cir. 2000) (precedes on plain error and notice considerations)
- United States v. Yefsky, 994 F.2d 885 (1st Cir. 1993) (harmless error analysis for indictment defects)
- Brand v. United States, 467 F.3d 179 (2d Cir. 2006) (indictment specificity considerations in enticement statutes)
- Meek v. United States, 366 F.3d 705 (9th Cir. 2004) (statutory specificity not always required in 2422 indictments)
- Goetzke v. Us, 494 F.3d 1231 (9th Cir. 2007) (substantial step standard in attempt crimes)