903 F.3d 818
8th Cir.2018Background
- Bernhardt, a U.S. citizen in North Dakota, communicated via Facebook Messenger with J.O.B. in the Philippines and her 14-year-old daughter L.O.B., soliciting nude images and discussing sex at a Manila hotel.
- L.O.B. sent nude images after Bernhardt offered money; Bernhardt discussed paying for a week at a hotel and talked about traveling to meet her.
- Facebook alerted authorities; agents executed a search of Bernhardt’s home, seizing electronic devices, Western Union receipts, and $34,640 in suspected counterfeit U.S. currency.
- While released pretrial, Bernhardt messaged J.O.B. urging her and her daughter not to speak to police and to delete nude pictures; he later admitted fabricating travel talk as "smoke and mirrors."
- A jury convicted Bernhardt of six counts: attempted exploitation of a child, attempted receipt of child pornography, possession of counterfeit obligations (18 U.S.C. § 472), two counts of attempted witness tampering (18 U.S.C. § 1512(b)(2)(B) & (b)(3)), and attempted travel with intent to engage in illicit sexual conduct (18 U.S.C. § 2423(b)).
- On appeal, the Eighth Circuit affirmed convictions for counterfeit possession and both witness-tampering counts, vacated the attempted-travel conviction for insufficient evidence of a substantial step, and remanded for resentencing on the remaining convictions.
Issues
| Issue | Bernhardt's Argument | Government's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for possession of counterfeit obligations (§ 472) | He only possessed the bills for games/poker; money was obviously fake so no intent to defraud | Possession, segregation of bills, varying paper quality showing progression, and legitimate serial numbers support intent and that bills were counterfeit | Affirmed — sufficient evidence of counterfeit and intent to defraud |
| Multiplicity of two witness-tampering counts (§ 1512(b)(2)(B) vs (b)(3)) | Both counts arise from same messages so they are multiplicitous | Each subsection requires an element the other does not (destroying evidence vs preventing communication) | Affirmed — not multiplicitous |
| Jury instruction / sufficiency re: "corruptly persuade" (§ 1512) | Instruction too broad; corrupt persuasion should require coercion or request to violate legal duty; his messages urged silence, not unlawful acts | Model instruction ("consciousness of wrongdoing") is correct and excludes innocent advice to invoke rights; his messages urged deception and deletion | Affirmed — instruction not plain error; evidence supports convictions for both tampering counts |
| Sufficiency of evidence for attempted travel (§ 2423) | Conversations about hotels, repeated references to travel, and jailhouse remark about "checking into it" show intent and a substantial step toward traveling | Grooming and preparatory steps plus travel-related discussion evidenced attempt to travel | Reversed — insufficient evidence of a substantial step (no ticket purchase, itinerary, travel to airport, or similar conduct); vacated attempted-travel conviction |
Key Cases Cited
- Wilder v. United States, 597 F.3d 936 (8th Cir. 2010) (standard for reviewing sufficiency of evidence)
- Armstrong v. United States, 16 F.3d 289 (8th Cir. 1994) (intent to defraud may be inferred from circumstances)
- United States v. Hall, 801 F.2d 356 (8th Cir. 1986) (similitude test for determining "counterfeit")
- United States v. Johnson, 434 F.2d 827 (9th Cir. 1970) (comparison involving one-sided or poor-quality reproductions under § 472)
- United States v. Olano, 507 U.S. 725 (U.S. 1993) (plain-error review standard)
- United States v. Grimes, 702 F.3d 460 (8th Cir. 2012) (Blockburger analysis for multiplicity)
- United States v. Farrell, 126 F.3d 484 (3d Cir. 1997) (interpretation of "corruptly persuade")
- United States v. Spurlock, 495 F.3d 1011 (8th Cir. 2007) (substantial-step analysis in attempt-to-entice context)
- United States v. Seljan, 547 F.3d 993 (9th Cir. 2008) (ticket purchase as substantial step toward travel)
- United States v. Carlisle, 118 F.3d 1271 (8th Cir. 1997) (distinguishing mere preparation from attempt)