United States v. Berk

United States Court of Appeals
For the First Circuit

No. 09-2472

UNITED STATES OF AMERICA,

Appellee,

v.

MICHAEL A. BERK,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Boudin, Stahl and Howard,
Circuit Judges.

Jeanne M. Kempthorne for appellant.
Margaret D. McGaughey, Assistant United States Attorney,
with whom Thomas E. Delahanty II, United States Attorney, was on
brief, for appellee.

July 27, 2011
 HOWARD, Circuit Judge. In December 2008, a grand jury in

the District of Maine charged Michael Berk with two counts of

attempting to entice a minor to engage in sexual conduct and one

count of possession of child pornography. Berk pled guilty to the

pornography charge, and he was convicted of the two child

enticement charges after a bench trial. He was sentenced to 200

months in prison. Two claims are pressed on appeal. First, Berk

argues that the indictment was defective because it lacked an

element of the crime charged. Second, he argues that the evidence

presented at trial was legally insufficient to convict him. We

affirm.

I.

The facts, though disturbing, are not greatly disputed.

Regardless, because Berk challenges the sufficiency of the

evidence, we recount them in some detail, and in the light most

favorable to the verdict. United States v. Dwinells, 508 F.3d 63,

65 (1st Cir. 2007).

A. Ashley Dame

On the morning of August 28, 2008, police in Biddeford,

Maine received a complaint from twenty-three year old handyman

Ashley Dame, then a father of four living in Biddeford. Dame

recounted the following chain of events. Earlier that day, he had

solicited employment on Craigslist, the internet-based classified

advertisement service. The ad he posted read:

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 looking for small odd jobs I am a father of 4
currently out of work looking for the
following yard maint, drywalling, painting,
firewood cutting splitting and stacking or
anything else u may have for me willing to
barter or accept cash I have referances and
reasonable rates or tell me what ya got for me
to do and what u are willing to barter for the
work to get done plz be in the biddeford saco
oob [presumably Old Orchard Beach] area thanks
and hope to meet u soon.

Soon after, Dame received an email from the address

"mbmathy@yahoo.com" ("mbmathy") inquiring "How old are the kids?

Will you rent any of them out?"1 Dame replied that his children's

young age was why he was looking for work, and that he "didn't put

them on here to do it." A few minutes later, mbmathy wrote, "Yeah,

I didn't know how young so I thought I'd ask if you would consider

making money that way -- thanks for the response." This exchange

ensued2:

Dame (11:26 AM): what do you mean rent them
out?

mbmathy (11:28 AM): Well how old are they? If
they're too young to do anything it doesn't
matter anyway :)

1
When a listing is posted on Craigslist, an anonymous email
address appears with the ad. Responses are automatically re-
directed to an email address specified by the individual posting
the ad, who can then choose to break the anonymity by responding.
Printouts of the emails discussed herein were entered into evidence
at trial.
2
Given the general informality of the electronic communication
at issue, we reproduce verbatim the text of the exchange.

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 Dame (11:30 AM): yeah they are too young for
that u do mean like work and whatnot right?if
u have anything i will do it.

mbmathy (11:31 AM): it depends -- how old are
they? Boys or girls?

Dame (11:32 AM): have a 12 yr old daughter
and my sons are younger3

mbmathy (11:40 AM): OK and you say you don't
want her doing anything for cash, only you?

Dame (11:41 AM): yeah i am looking for what i
said odd jobs such as painting yard maint
cutting and splitting wood etc maybe other
things let me know what u have

mbmathy (11:43 AM): Paid oral training is
what I'm looking for, stuff along those lines.
It pays a lot more than regular odd jobs but
as you know it isn't for everyone.

Dame (11:43 AM): what is it that u are
talking about?

mbmathy (11:47 AM): It's worth a lot of money
to me to be able to train a girl how to give
head, or anything along those lines (I'm
flexible and open-minded) as long as it's
discreet. Like I said most people would just
turn an opportunity like this away and that is
fine, but it's not like I can just go up to
people and ask.
So, I totally understand that it's not what
you posted for and it probably isn't something
you're willing to consider, but if you'd like
to talk about it let me know. As I mentioned
it's worth a lot more than yard work.

Dame (11:49 AM): where are you located?

mbmathy (11:51 AM): On the ME/NH border.. not
too close-by but it's not across the state
either.. What do you think?

3
Dame's daughter was actually eight at the time.

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 Dame called the police at 11:53 AM. A police dispatcher

had Dame forward copies of the email exchange to her, sent an

officer to Dame's house and notified a detective. The responding

officer, noting the tenor of mbmathy's messages, also contacted the

department detective who investigated sex crimes. After taking

Dame's statement and getting his agreement to assist, the officer

directed Dame to call the dispatcher, who instructed Dame about

how to "continue the conversation."

At 12:14 PM, roughly twenty-three minutes after his last

email to Dame, mbmathy messaged, "Is that a no?" Now following the

direction of police, Dame responded at 12:32 PM: "am thinking

about it can you give me a little more info on this?" Mbmathy

provided this detail at 12:43 PM: "I'm looking for something that

would happen on an ongoing/regular basis, which would put hundreds

of dollars in your pocket depending on what you could offer,

availability, etc." He also said that he couldn't be more specific

about money "without knowing more details about what [Dame] can

offer."

The final email was sent at 2:30 PM. The two men -- with

Dame being guided by police -- eventually agreed to meet at a

Dunkin Donuts near the Portland airport at 5:30 PM. Mbmathy told

Dame that he would be driving a white Pontiac. Dame said that he

would arrive in a pick-up truck. In fact, the truck was one that

was used by the Maine State Police for undercover work. Sergeant

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Dale York was assigned to impersonate Dame, wear a recording device

and drive the truck to meet mbmathy. Other officers maintained

visual surveillance and monitored the recording device.

Shortly after York arrived at the meeting place, a black

Volkswagen arrived in the parking lot. Although York was expecting

a white Pontiac, he became suspicious when the driver -- later

determined to be Berk -- walked by York's truck several times.

Finally, the man approached the truck and asked York if he was

waiting for a white Pontiac.4 After an exchange of first-name

introductions, Berk, satisfied that he was meeting with Dame, cut

to the chase. He expressed his interest in having oral sex with

the 12-year old daughter, assured York that he would not hurt the

girl, and said that he would cover any travel expenses. When York

pressed Berk for a price, Berk offered $100 per night for oral sex

up to $300 per week and added "if there's any more that can happen

then it will be more." Berk also asked how York thought his

"daughter" "is going to react to this" and whether York was "going

to help this out."

They agreed that future contact would be by email; York

said that it would take about a week "to lay the ground work."

Berk agreed with York that it was a strange position for the latter

to be in, but pointed out that "this is not something that I could

go up and just talk to someone about." York said that he would

4
A transcript of the Berk-York meeting, taken from the hidden
recorder, was entered into evidence.

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"see what she thinks. You know, if she agrees to it, if you want

me to email you this weekend or if you rather have it later on."

Berk concluded by saying, "Just keep in touch. As far as I'm

concerned the sooner the better. Because, I don't, I don't want

this to just go linger out in the middle of nowhere. I don't want

to be paranoid or anything."

Moments later, other officers approached the truck and

took Berk into custody. He was taken to a local police station

where he waived his Miranda rights before agreeing to a videotaped

interview. Asked what he thought was the reason for his arrest,

Berk responded that it was related to his two "interests": paying

for sex and girls under the age of 18. He also said that in his

communication with Dame, he "saw somebody who needed some money -

I said, hey, do you have any females and . . . as a matter of fact

he had a certain female I might be interested in -- so I said

alright, well, maybe we should talk about it . . . . He said she

was twelve." A search of Berk's residence yielded child

pornography stored on computers and external storage devices.

B. Dorothy Jensen

Berk's arrest received coverage from local television

news outlets. Among the viewers was Portland resident Dorothy

Jensen, who recognized Berk from a photo that he had sent her

during a series of communications regarding an "apartment wanted"

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ad that she had posted on Craigslist for her and her 12-year old

daughter in early August 2008.

In responding to Jensen's ad, Berk not only said that he

knew people with available housing, but also that he could

"supplement [Jensen's] income in a way that would give [her] more

freedom." He eventually asked for a photo of Jensen and her

daughter and sent Jensen one of himself. On August 24, Berk and

Jensen had a lengthy colloquy over the internet, using instant

messaging. Acknowledging Jensen's earlier comment that she was

"running out of time," Berk said that he was "talking about

something a little more under the table." When asked for further

details, Berk said it depended on what Jensen was "open to

sexually" and inquired about her age and marital status. He added

that he had asked for the pictures to "see what she looks like,

does she have a boyfriend or anything like that?"

After Jensen informed Berk that her daughter had recently

broken up with her boyfriend, Berk asked whether Jensen would "be

interested in renting her out, getting her trained, anything along

those lines . . . ." When asked to be more specific about

"training," Berk replied that "it depends on her

experience/interests and any limits you'd place on her I suppose.

Anything in particular you think she needs to learn better?" In

response to Jensen's question, "are we talking behavior or

sexually," Berk replied "both!"

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 Berk explained that he was "really expecting to be able

to do this more than once, anywhere from a couple of hours to

overnight." He said also that what he would want "would depend on

what [Jensen] can offer and what makes sense." He told Jensen that

she would be able to inform Berk "what is OK or not OK." Berk

glossed over the daughter's "inexperience," asking Jensen if she

"mind[ed] if she gets some training" and that "the kind of training

depends on what you're open to. I want to make sure you get out of

this what you need, and that what you give me works for both of

us."

Berk then suggested a meeting with Jensen as soon as the

next day. Due to other obligations Jensen couldn't provide a

specific meeting time, but agreed to communicate with him the next

day. Before any meeting occurred, Jensen saw Berk on television

after his arrest and contacted the police.

II.

A. Challenge to the indictment

Berk first argues that the superseding indictment

pursuant to which he was tried was defective because it failed to

allege an element of the crime charged. The grand jury charged

Berk with two counts (one each with respect to Dame and Jensen) of

violating 18 U.S.C. § 2422(b), in that he:

did use a facility of interstate or foreign
commerce, namely the Internet, to knowingly
persuade, induce, entice and coerce an
individual who had not attained the age of 18

-9-
 years to engage in sexual activity for which a
person could be charged with a criminal
offense, and did attempt to do so.

(emphasis added). Berk's main argument is that the indictment was

defective because the highlighted phrase did not identify a

particular underlying criminal offense "for which [Berk] could be

charged," and thus the indictment provided him with insufficient

notice.5 We review the legal question presented de novo. United

States v. Lopez-Matias, 522 F.3d 150, 153 (1st Cir. 2008). If

error is found, we then review for harmlessness. United States v.

Lnu, a/k/a Oshunkey, 544 F.3d 361, 369 (1st Cir. 2008) (citing

United States v. Mojica-Baez, 229 F.3d 292, 311 (1st Cir. 2000)).

An indictment is legally sufficient if it "'first,

contains the elements of the offense charged and fairly informs a

defendant of the charge against which he must defend, and, second,

enables him to plead an acquittal or conviction in bar of future

prosecutions for the same offense.'" United States v. Cianci, 378

F.3d 71, 81 (1st Cir. 2004) (quoting Hamling v. United States, 418

U.S. 87, 117 (1974)). "The indictment . . . must be a plain,

5
We bypass the government's assertion that Berk waived the
lack of notice issue by failing to timely raise it. He also argues
that the lack of specificity in the charging document subjected him
to a substantial risk of being convicted on a basis other than the
one on which the grand jury indicted him. Besides being waived for
lack of development in the opening brief, see United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990), this claim is also waived
because it was not made at all in the district court. See Fed. R.
Crim. P. 12(b)(3)(B) and 12(e) (motion alleging indictment defect,
other than indictment's failure to invoke court's jurisdiction or
to state an offense, is waived if not raised before trial).

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concise and definite written statement of the essential facts

constituting the offense charged . . . ." Fed. R. Crim. P.

7(c)(1). It "should be specific enough to notify the defendant of

the nature of the accusation against him and to apprise the court

of the facts alleged." United States v. Brown, 295 F.3d 152, 154

(1st Cir. 2002) (citing Russell v. United States, 369 U.S. 749,

766-68 (1962)). Setting forth the words of the statute itself is

"generally sufficient" if "those words set forth all the elements

of the offense without any uncertainty or ambiguity." Id. (citing

United States v. Serino, 835 F.2d 924, 929 (1st Cir. 1987)).

The indictment in this case, aside from including the

dates of the Dame and Jensen communications and noting "the

internet" as the "means of . . . commerce" employed, merely tracks

the language of the statute. The first time that the government

specified a particular "criminal offense for which [Berk] could be

charged" was in its trial brief, which it provided to Berk several

weeks before trial. In that instance the government identified the

crime as gross sexual assault, in violation of Me. Rev. Stat. tit.

17-A, § 253, which prohibits an individual from having sex with a

person under the age of fourteen. Later, in its response to Berk's

Rule 29 motion for acquittal, the government again specified

section 253.6

6
The government also notes that Berk was arrested on state
charges of criminal solicitation after he was apprehended in the
Dunkin Donuts parking lot.

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 We have never held that identifying a specific criminal

offense is a requirement in a section 2422 indictment. Berk relies

on Dwinells to support his argument that specificity is required.

In that case, however, although we noted the presence of specific

Massachusetts laws in the indictment, we did not state that such

particularity was actually required. 508 F.3d at 72. We further

observed that in light of the charge in the indictment, the

district court correctly instructed the jury that the government

had to prove a nexus between the enticement and the particular

state law. Id. But we have not spoken to the question of whether

the government is required to specify in an indictment what law is

implicated. Cases from other circuits are of a kind. See, e.g.,

United States v. Brand, 467 F.3d 179, 182 (2d Cir. 2006) (noting

that indictment stated that illegal sexual activity was intended to

take place in New York, but not identifying applicable state

statute or whether its inclusion was required); United States v.

Hicks, 457 F.3d 838, 840 n.2 (8th Cir. 2006) (noting that

indictment listed Missouri criminal statutes, but not indicating

whether the listing was required); United States v. Bolen, 136 F.

App'x 325, 329 (11th Cir. 2005) (finding indictment was sufficient

where it specifically alleged child molestation without indicating

whether said specification was required); United States v. Meek,

366 F.3d 705, 711, n.5 (9th Cir. 2004) (noting the particular

California criminal statute that would have been violated, but not

-12-
indicating whether it was included in indictment or whether it was

required to be).

In a similar vein, courts generally -- including us in

an unpublished decision -- have not mentioned the particulars of

the criminal offense when describing the elements of a section

2422(b) violation. See, e.g., United States v. Gravenhorst, 190 F.

App'x 1, 3 (1st Cir. 2006) (noting that conviction requires showing

that "defendant attempted to (1) use a facility of interstate

commerce (2) to knowingly persuade, induce, entice, or coerce (3)

an individual under the age of 18 (4) to engage in illegal sexual

activity."); United States v. Cochrane, 534 F.3d 631, 633 (7th Cir.

2008); United States v. Thomas, 410 F.3d 1235, 1245 (10th Cir.

2005); Brand, 467 F.3d at 201-02; Meek, 366 F.3d at 718).

In the end, the question of whether the specifics of the

offense that satisfies the fourth element of the federal offense

must be included in the indictment is one that we need not answer

in this case. Even were we to assume that the indictment itself

was inadequate, "we still must determine whether the defect in the

indictment prejudiced" Berk. United States v. Yefsky, 994 F.2d

885, 894 (1st Cir. 1993). We conclude that it did not. In Yefsky

we found error in an indictment charging a fraud conspiracy because

the indictment failed to adequately set forth the false pretenses

employed by the defendant to perpetuate the fraud. Id. The error

was harmless, however, because the defendant "received ample notice

-13-
before trial of the facts underlying [the conspiracy]." Id. In

that case the trial court's rulings, discovery and the nature of

the trial defense provided the defendant sufficient opportunity to

rebut the government's charges against him. Id.; see also Mojica-

Baez, 229 F.3d at 311-12 (holding, on plain error review, that

defendant was not prejudiced by failure of indictment to charge

element of use of semi-automatic assault weapon, where notice was

given through other means).

Here, the record reflects a pretrial exchange of

discovery that included the electronic correspondence recounted

above. Moreover, the government's trial memo, which specified a

Maine criminal statute that Berk's actions would have violated, was

provided to Berk more than a month prior to trial. Finally, at the

time of his arrest Berk thought that he was meeting with the father

of a particular 12-year old girl in whom he had expressed interest

on the same date that was stated in the indictment, and he

acknowledged the basis for his arrest in his statement to police.

These circumstances compel a finding of harmless error. Cf. United

States v. Murphy, 762 F.2d 1151, 1153-55 (1st Cir. 1985) (reversing

conviction for witness tampering where the indictment failed to

indicate which, among many possible "official proceedings," the

defendants had allegedly interfered in and where the government

posited multiple theories at trial, thus hampering the defendants'

ability to defend themselves). Even assuming error, we are

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satisfied, "with fair assurance, after pondering all that happened

without stripping the erroneous action from the whole, that the

[fact finder's] judgment was not substantially swayed by the

error." Yefsky, 994 F.2d at 894 (citations and internal quotation

marks omitted).7

B. Sufficiency of the Evidence

Berk also argues that his motion for judgment of

acquittal should have been granted because the evidence at trial

was insufficient to prove that he attempted to "persuade, induce,

entice or coerce a minor," given that the government's proof

involved only contact with adults. After reviewing the evidence in

the light most favorable to the verdict, Dwinells, 508 F.3d at 72,

we conclude that the evidence was sufficient to sustain the

conviction.

"Section 2422(b) criminalizes an intentional attempt to

achieve a mental state - a minor's assent - regardless of the

7
Berk asks us to follow United States v. Mannava, in which the
Seventh Circuit held that "the elements of the offense under [the
state] statute must[] be elements of the federal offense . . . ."
565 F.3d 412, 415 (7th Cir. 2009). In that case, the indictment
noted that the charged sexual activity would have violated Indiana
law. Id. at 414. A bill of particulars specified two possible
statutes. Id. The court held that "it an was error to allow the
jury to convict the defendant without a unanimous determination
that the defendant had violated one or both of the Indiana statutes
. . . ." Id. But see United States v. Hart, 635 F.3d 850, 855-56
(6th Cir. 2011) (rejecting Mannava and holding that "the underlying
[state] criminal offenses are not elements of the federal
offense"). Mannava is not of much help in the circumstances of
this case, because the concern in that case was that a jury might
not reach a unanimous verdict. Berk received a bench trial.

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accused's intentions vis-à-vis the actual consummation of sexual

activities with the minor." Dwinells, 508 F.3d at 71 (emphasis in

original). The crime of "attempt" requires an intention to commit

the substantive offense -- here, critically, to "persuade, induce,

entice and coerce" -- and a substantial step towards its

commission. United States v. Burgos, 254 F.3d 8, 12 (1st Cir.

2001). A "'substantial step' is less than what is necessary to

complete the substantive crime, but more than 'mere preparation.'"

United States v. Piesak, 521 F.3d 41, 44 (1st Cir. 2008) (quoting

United States v. Rodriguez, 215 F.3d 110, 116 (1st Cir. 2000)); see

also United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007)

(observing that a "'substantial step' . . . cross[es] the line

between preparation and attempt by unequivocally demonstrating that

the crime will take place unless interrupted by independent

circumstances" (internal quotation marks omitted)). Finally, a

defendant can be convicted even if the relevant communications are

with an intermediary. United States v. Lanzon, 639 F.3d 1293, 1299

(11th Cir. 2011); United States v. Douglas, 626 F.3d 161, 165 (2d

Cir. 2010), cert. denied, 131 S. Ct. 1024 (2011); United States v.

Nestor, 574 F.3d 159, 162 (3d Cir. 2009), cert. denied, 130 S. Ct.

1537 (2010).

Berk argues that the evidence supports no more than a

finding that his internet communications with Ashley Dame "never

went beyond mere preparation." We disagree. The trial court could

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easily have found that the explicit communications with a person

whom Berk thought was the father of a 12-year old girl about

"renting her out," along with the concomitant request to see what

the girl thought of the idea, were part of an attempt to achieve

the requisite mental state in the minor. Beyond that, we have

little trouble concluding that actually meeting with the girl's

father and discussing with him graphic sexual details and prices

goes far beyond "mere preparation."8

To be sure, the evidence against Berk with respect to the

Jensen matter is not as clear-cut. The record reflects, however,

that after responding to Dorothy Jensen's classified ad, Berk not

only steered the ensuing conversation away from Jensen's search for

housing and towards paying for sex with Jensen's daughter, but he

also helped to propel the scheme by finding and sending to Jensen

leads about homes that he said she could "rent," even though he was

not in the real estate business. In addition, Berk exchanged or

attempted to exchange photos with Jensen, and he proposed meeting

Jensen in order to discuss details of his "plans" to help Jensen

earn money for housing. Even though, unlike in the Dame matter, no

such meeting ever took place, it was only the fortuity of Jensen

8
Testifying in his own defense, Berk claimed that he had no
interest in actually having sex with the minors, but was instead
engaging in a form of "role playing." The district court, as
finder of fact, was, of course, free to reject Berk's defense.
United States v. Ford, 22 F.3d 374, 383 (1st Cir. 1994) (noting
that finder of fact is free to reject a defendant's explanation of
events and that "it is not the province of this court to reweigh
conflicting testimony or to make credibility determinations.").

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seeing Berk's face and modus operandi on television that prevented

it. These actions go beyond mere "talk" or "hot air." Cf. United

States v. Gladish, 536 F.3d 646, 647 (7th Cir. 2008) (overturning

conviction after finding that explicit sexual talk alone was not a

"substantial step"). Nor, as Berk suggests, is travel to a meeting

necessarily an element of an attempt. See United States v. Bailey,

228 F.3d 637, 639-40 (6th Cir. 2000) (finding sufficient evidence

of "substantial step" where defendant did not meet with minors, but

proposed doing so in order to have sex with them).

In sum, the indictment was not fatally defective and the

evidence was sufficient to support the convictions in both the

Jensen and Dame matters. Berk also interposed a challenge to his

sentence that is dependent on invalidating his conviction. The

predicate having failed, we need not address the argument.

Affirmed.

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