United States v. Berndt, Joseph ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2928
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSEPH BERNDT,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 06 CR 101—Robert L. Miller, Jr., Chief Judge.
____________
ARGUED FEBRUARY 13, 2008—DECIDED JUNE 19, 2008
____________
Before CUDAHY, POSNER and EVANS, Circuit Judges.
CUDAHY, Circuit Judge. Joseph Berndt lived in the
basement of his parents’ South Bend, Indiana home for
over 30 years. In 2006, his parents decided to sell their
home and, in June of that year, Berndt left South Bend
and went to live in South Dakota. When the family began
to clean up the house in early August to get it ready
for sale, they made an unsettling discovery. It seems
that Berndt was something of a pack rat. But in addition
to the usual accumulations of old clothes, tools and junk,
Berndt’s nest included a substantial arsenal of deadly
weapons: nine pipe bombs wrapped with roofing nails,
2 No. 07-2928
62 firearms and thousands of rounds of ammunition, to
be specific. The area around the weapons had been
rigged with alarms and motion detectors. Understand-
ably alarmed at their discovery, family members called
the police, and local and federal law enforcement agents
removed the pipe bombs from the house. After Berndt
returned to South Bend at the end of August, federal
agents arrested him.
Berndt was indicted for possession of unregistered
pipe bombs in violation of 26 U.S.C. §§ 5845, 5861(d) and
5871 in September 2006. Section 5861(d) provides: “It
shall be unlawful for any person . . . to receive or possess
a firearm which is not registered to him in the National
Firearms Registration and Transfer Record . . . .” A pipe
bomb is a “firearm” under Title 26. See 26 U.S.C. § 5845.
Berndt filed a motion to dismiss the indictment, alleging
that the five-year statute of limitations in 18 U.S.C. § 3282
barred his prosecution. He asserted that he came to
possess the bombs 30 years prior to their discovery by
police, and that his crime of possession of unregistered
firearms was completed when he took possession of the
pipe bombs and failed to register them. On this reasoning,
the statute of limitations lapsed 25 years prior to his
indictment. The district court denied his motion and a
jury convicted Berndt after a two-day trial. On August 7,
2007, Berndt was sentenced to 51 months imprisonment
and three years supervised release.
Berndt raises three issues in this appeal. First, Berndt
argues that the district court erred in denying his motion
No. 07-2928 3
to dismiss on statute of limitations grounds.1 The district
court concluded that possession of pipe bombs is a con-
tinuing offense and thus, it was irrelevant whether
Berndt came to possess the bombs in 1976, 1986 or 2006.
The statute of limitations did not begin to run until
Berndt stopped possessing the bombs in the summer of
2006 and because he was indicted in September 2006,
the statute of limitations did not bar his prosecution.
On appeal, Berndt contends that possession of unregis-
tered pipe bombs is not a continuing offense. This argu-
ment is without merit. A crime is a “continuing offense”
for statute of limitations purposes when “the explicit
language of the substantive criminal statute compels
such a conclusion, or the nature of the crime involved is
such that Congress must assuredly have intended that it
be treated as a continuing one.” Toussie v. United States,
397 U.S. 112, 115, 90 S. Ct. 858, 25 L. Ed. 2d 156 (1970).
Our precedent makes clear that possession is a con-
tinuing offense. See United States v. Fleischli, 305 F.3d 643,
658 (7th Cir. 2002) (“Possession of a firearm is a continuing
offense which ceases only when the possession stops.”)
(superseded by statute on other grounds); United States v.
Winnie, 97 F.3d 975, 976 (7th Cir. 1996) (statute of limita-
tions did not begin to run until defendant no longer
possessed contraband); United States v. Ballentine, 4 F.3d
504, 507 (7th Cir. 1993). This view is shared by our sister
circuits, see, e.g., United States v. Zidell, 323 F.3d 412, 422
1
At oral argument, Berndt conceded that he cited the wrong
statute of limitations before the district court. The statute of
limitations for possession of an unregistered firearm, an
offense arising under the internal revenue laws, is three years.
26 U.S.C. § 6531.
4 No. 07-2928
(6th Cir. 2003); United States v. Smith, 266 F.3d 902, 904 (8th
Cir. 2001); United States v. Blizzard, 27 F.3d 100, 102 (4th
Cir. 1994); United States v. D’Angelo, 819 F.2d 1062, 1066
(11th Cir. 1987), and accords with common sense. Everyday
experience tells us that we possess things until we lose
them, abandon them or they are taken from us.
It makes no difference that the statute under which
Berndt was prosecuted does not expressly state that
possession of unregistered firearms is a continuing
offense. The very nature of possession of pipe bombs
is “such that Congress must assuredly have intended
that it be treated as a continuing [offense].” Toussie, 397
U.S. at 115, 90 S. Ct. 858. Each day that Berndt continued to
possess the bombs brought a “renewed threat of the
substantive evil Congress sought to prevent.” Id. at 122,
90 S. Ct. 858. That Berndt may have made the bombs or
otherwise acquired them in 1976 is irrelevant. He pos-
sessed them until law enforcement authorities seized
them from his parents’ home and he was indicted just
weeks after he stopped possessing the bombs, well
within the limitations period. Adopting Berndt’s position
that possession is not a continuing offense would enable
criminals to keep dangerous and illegal things—guns,
drugs, bombs—if they are able to conceal them for the
statutory limitations period. This result is an obvious
absurdity.
Berndt seeks to escape the result dictated by our prece-
dent by arguing that his case is like Toussie. The defendant
in Toussie had failed to register for the draft within five
days of his eighteenth birthday in violation of federal
law. He argued that his crime was completed when he
failed to register in 1959 and that the five-year statute of
limitations barred his prosecution in 1967. The Su-
No. 07-2928 5
preme Court agreed. Berndt’s case is obviously distin-
guishable. Berndt was not charged with failure to register
pipe bombs; rather, he was charged with the possession
of unregistered pipe bombs.
In his second challenge to his conviction, Berndt
argues that the district court committed reversible error
when it refused to tender his proposed instruction on
the statute of limitations defense. In reviewing jury in-
structions, we “must determine from looking at the
charge as a whole, whether the jury was misled in any
way and whether it had understanding of the issues and
its duty to determine those issues.” United States v.
Fawley, 137 F.3d 458, 467 (7th Cir. 1998) (quoting United
States v. Abdelkoui, 19 F.3d 1178, 1182 (7th Cir. 1994)). A
defendant is entitled to a jury instruction on his theory
of the case if:
(1) the instruction represents an accurate statement of
the law; (2) the instruction reflects a theory that is
supported by the evidence; (3) the instruction reflects
a theory which is not already part of the charge; and
(4) the failure to include the instruction would deny
the [defendant] a fair trial.
United States v. Hendricks, 319 F.3d 993, 1006 (7th Cir. 2003)
(quoting United States v. Swanquist, 161 F.3d 1064, 1075
(7th Cir. 1998)) (alteration in original). Berndt contends that
he was entitled to argue to the jury that the statute of
limitations barred his prosecution. But Berndt was charged
with possessing pipe bombs in 2006. Since the jury had
to conclude that he possessed the pipe bombs that
were seized by law enforcement agents in August 2006
in order to find him guilty, there is no statute of limita-
tions issue. Berndt was not entitled to argue that his
crime was completed in 1976 when he made or acquired
6 No. 07-2928
the bombs because that is an inaccurate statement of
the law. Thus, the district court properly refused to
tender Berndt’s proposed instruction.
Finally, Berndt argues that he was unfairly prejudiced
when the government played a DVD to the jury that
showed his living quarters in the basement of his parents’
home where the pipe bombs were discovered. Berndt’s
objection arises from the fact that the DVD footage
includes images of Nazi memorabilia that was in the
basement. He asserts that the jury may have inferred
that he is a member of a hate group, and that this impres-
sion may have biased them against him in their delibera-
tions. Berndt objected to the DVD’s introduction at trial
and so our review is for abuse of discretion. United States
v. Wiszowaty, 506 F.3d 537, 540 (7th Cir. 2007). A district
court may exclude relevant evidence “if its probative
value is substantially outweighed by the danger of unfair
prejudice.” Fed. R. Evid. 403; United States v. Smith,
502 F.3d 680, 686 (7th Cir. 2007), cert. denied, 128 S. Ct. 1270
(2008).
The district court’s decision to admit the DVD into
evidence was well within its discretion. The video
footage was probative because it was taken hours after
Berndt’s family discovered the pipe bombs and showed
where the devices were found. The DVD also showed
the various alarms and motion detectors that had been
rigged around the basement. The risk of unfair prejudice
was slight. The jury knew that Berndt had a collection of
World War II memorabilia; the government stated as
much in its opening statement and defense counsel elicited
testimony from a witness that American and German
World War II paraphernalia were found in the basement.
The potentially objectionable objects comprised a black
No. 07-2928 7
and white photograph of Hitler, a couple of boxes con-
taining miscellaneous badges that are unlikely to be
identifiable to a person viewing them for a few sec-
onds, and a box containing several books with Nazi
images and symbols on their covers. The objectionable
images appeared for a very brief period of time and posed
a negligible risk of unfairly prejudicing Berndt.
For the above reasons, we AFFIRM the judgment of the
district court.
USCA-02-C-0072—6-19-08