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United States of America v. Brian Berg

April 5, 2011

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
BRIAN BERG, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 07 CR 856-Elaine E. Bucklo, Judge.

The opinion of the court was delivered by: Tinder, Circuit Judge.

ARGUED DECEMBER 8, 2009

Before EASTERBROOK, Chief Judge, and ROVNER and TINDER, Circuit Judges.

Brian Berg was convicted of attempting to persuade, induce, or entice a minor to engage in sexual activity, 18 U.S.C. § 2422(b); knowingly receiving computer images of child pornography, 18 U.S.C. § 2252A(a)(2); knowingly distributing computer images of child pornography, § 2252A(a)(2); and knowingly possessing a computer disk containing images of child pornography, § 2252A(a)(5). The district court sentenced Berg to 124 months for the § 2422(b) offense and 120 months for the other offenses, to run concurrently. Berg appeals, challenging the sufficiency of the evidence to sustain his § 2422(b) conviction. He also contends that prosecutorial misconduct during closing argument entitles him to a new trial on all of the charges against him. Finally, Berg argues that the district court failed to address his claim that the mandatory minimum sentence for § 2422(b) offenses results in unwarranted sentencing disparities, rendering his sentence unreasonable.We affirm.

I. Background

On May 30, 2007, Berg contacted an individual identifying herself as "Carrie," in an Internet chat room. Berg asked Carrie her age and location. She said she was sixteen and just moved to Palos Park, Illinois. Berg, who was twenty-eight years old, told Carrie that he was twenty-five years old and from Palos Heights, Illinois. Carrie told Berg to send a picture, and Berg sent her a photograph of himself. Carrie also told Berg that she smoked cigarettes.

"Carrie" was really Detective Dan Albrecht of the Western Springs Police Department, who was conducting an undercover operation targeting persons who used the Internet to solicit minors for sex. Detective Albrecht had created an online persona for Carrie, including an America Online (AOL) profile and MySpace page. The AOL profile identified Carrie as a sixteen-year-old girl and included a photograph of what appeared to be a young teenager at a park. (The photo was really of a police officer.) Carrie's Myspace page also stated that Carrie was sixteen years old and included four photographs of the same officer posing as a young teenager. Detective Albrecht used the AOL user name "carrie4u1991."

Berg contacted Carrie again the next day. He asked her for a picture; she sent him one of the photos of the police officer posing as a young teen. Berg responded, "Nice." Berg asked Carrie why she liked "older guys" and told her that younger girls kissed better and that he "like[d] to touch when I kiss." Berg asked Carrie her bra size and whether she "use[d] lots of tongue" when she kissed. He told her that he thought girls looked sexy when they smoked and that he loved to watch sexy girls blow smoke out of their mouths. Berg offered to bring Carrie a pack of cigarettes if she would smoke for him and suggested that they meet. When Carrie asked Berg what they would do if they met, he suggested that they could "make out." He reiterated that he thought it looks sexy when a girl smokes. He then asked Carrie how far she had gone with a guy, and Carrie answered that she had had sex. Berg again suggested that they meet. When Carrie asked him what was in it for her, he answered, "free cigarettes," and asked what else she wanted. Berg suggested a third time that they meet.

On September 3, 2007, Berg contacted Carrie in the chat room and asked her if she liked older guys. Carrie told Berg that she was sixteen years old. Berg sent Carrie a picture of his erect penis covered by boxer shorts and inquired whether she liked what she saw. He also asked her if she had any "sexy pics." She said no. Berg then asked Carrie "what kind of panties" she was wearing. She answered, "wouldn't you like to know," to which Berg responded, "we could meet up and you could show me LOL." Three times Berg suggested that Carrie meet him. He also asked her what she would want to do if they met. Berg then turned the conversation to oral sex. He told Carrie that he loved giving oral sex to a girl. He asked her what she liked to do sexually and whether she liked to receive oral sex. Carrie answered, "yes," and Berg said that he'd make her "go crazy" and expected "a good blow job" in return. When Carrie expressed concern over her ability to give him what he wanted, Berg assured her that she was "very sweet and fun to talk to" and that she "would be fine xoxoxo." He also described his prior sexual exploits with two other girls he had met online.

In the next few days, Berg contacted Carrie several more times in the chat room and sent her text messages. On September 4, he asked her what kind of panties she was wearing and told her that they should meet. She advised him she had plans with her girlfriends. Berg told Carrie to tell her friends she was busy. Carrie responded, "you would really have to entice me to make me blow them off," and Berg replied, "pretty much remember all the stuff we talked about yesterday." He told Carrie that if she gave him a chance to perform oral sex on her, she would want to come over every day. He assured her that it would be fun. Berg asked Carrie about the color bra and kind of panties she was wearing. On September 5, Berg made arrangements to meet Carrie behind a liquor store at 55th Street and Willow Springs Road later that day. On his way to the meeting place, Berg had a telephone conversation with someone representing herself as Carrie (she was a female police officer). He said he thought it sounded like a man impersonating a girl. Berg claimed he thought he was being set up to get robbed. As a result, he didn't show up for the meeting.

Berg contacted Carrie several other times in the fall of 2007. For example, on October 13, he asked Carrie what kind of panties she was wearing. And on November 3, he contacted her and asked her if she had any new pictures, whether she had been with any guys lately, and what she was wearing. Berg told Carrie he would "like to meet up" and reminded her that he had said he "would love to lick your pussy last time." He suggested that "maybe [they] could meet up." Then he asked her if she gave "good blow jobs," what she liked to do to guys, and what she liked to have done to her. When Carrie responded that she loved back rubs, Berg assured her that he gave good back rubs.

On November 11, Berg again contacted Carrie. He asked her what she was wearing and what color bra she was wearing. He told her that he wanted to see it and asked her if she could go out. Berg sent Carrie another photo-graph of his erect penis covered by boxer shorts and again asked her if she could go out. Carrie agreed to meet him near the liquor store at 55th Street and Willow Springs Road. She suggested that they meet in back; Berg countered that they meet out front. Carrie informed Berg that she had to be home by 9:00 p.m. that night.

Berg drove to meet Carrie at the designated meeting place, which was approximately eight to ten miles from his residence, sending her text messages along the way. He indicated that he'd be there at 8:13 p.m. Berg drove toward 55th Street and Willow Springs Road and past the liquor store a couple of times, under the observation of Detective Albrecht and other law enforcement officers. Then Berg pulled into the parking lot in front of the liquor store and was arrested immediately.

The officers took Berg to the Western Springs Police Department, where Detective Albrecht read Berg his Miranda rights. Berg signed a written Miranda waiver and agreed to speak with the detective. During his interview, Detective Albrecht asked Berg how old he thought Carrie was, and Berg said fifteen or sixteen years old. The detective asked Berg what he planned to do with Carrie had she shown up at the meeting place and specifically asked whether he would have had sex with her. Berg stated that he would not have had sex but would have had oral sex with her and a mutual showing of genitalia, as well as drive around. Detective Albrecht questioned Berg about his other Internet activi-ties. Berg said that he had in-person meetings with ten to fifteen women and girls whom he first met on the Internet; five or six of them were under the age of seven-teen. Berg also said that five months before his arrest he had met a minor under seventeen whom he had met on Myspace, a social networking website. He said they drove around, and she gave him a "hand job" in his car, meaning that she rubbed his penis with her hand.

After Detective Albrecht interviewed Berg, Araceli Reyes Delacruz, an assistant state's attorney (ASA), arrived at the police station to interview Berg and take a statement from him. She first met with Detective Albrecht and reviewed the transcripts of the chats that he, posing as Carrie, had with Berg. After that, ASA Delacruz gave Berg his Miranda warnings, Berg waived his rights, and Delacruz interviewed him. At the end of the interview, Berg agreed to have ASA Delacruz write out a statement for him. The statement provides in part:

Brian states that he has been chatting with "carrie4u1991" since May of 2007. Brian states that "carrie4u1991" stated that she was 16 years old and he told her that he was 25 years old. Since May 2007 until today's date Brian states that he has chatted with her several times. Brian states that People's Exhibit No. 1 is a copy of a chat he had with "carrie4u1991" on 9/4/07. Brian states that this is one of many chats he had with "carrie4u1991." Brian states that during this particular chat, he told "carrie4u1991" that he wanted to go down on her. Brian states that he meant he wanted to perform oral sex on her.

Brian states that People's Exhibit No. 2 is a copy of a chat he had with "carrie4u1991" on 11/3/07. Brian states that he again indicated that he wanted to perform oral sex on "carrie4u1991" . . . .

Brian states that on today's date, 11/11/07, he chatted with "carrie4u1991," emailed her, and text messaged her. Brian states that he and "carrie4u1991" agreed to meet at 55th and Willow Springs Road at Countryside, Illinois, at about 8:15. Brian states that he arrived at the agreed location to meet "carrie4u1991" and had she actually shown up he would have engaged in oral sex with her if she wanted.

After Berg's arrest, Detective Albrecht searched one of Berg's cell phones and found approximately thirty-three images of a younger female. Some of the images showed her clothed, some showed her naked and exposed her breasts and genitalia, and others showed her smoking. Berg told Detective Albrecht that the pictures were of his girlfriend, Kati, who was seventeen years old and lived in Oregon. Detective Albrecht found the name Kati in Berg's phone's contact list and placed a call to the number listed. A female answered, identifying herself as Kati, and said that Berg was her boyfriend.

An eight-count indictment charged Berg with one count of attempting to persuade, induce, and entice a minor under age eighteen to engage in sexual activity in violation of 18 U.S.C. ยง 2422(b) and several counts of knowingly receiving and distributing child pornography and possessing material containing child ...


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