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Thursday, June 19, 2008

Ind. Decisions - 7th Circuit decides one Indiana case today

In U.S. v. Joseph Berndt (ND Ind., CJ Miller), a 7-page opinion, Judge Cudahy writes:

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, 62 firearms and thousands of rounds of ammunition, to be specific. The area around the weapons had been rigged with alarms and motion detectors. Understandably 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.

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 to dismiss on statute of limitations grounds.1 The district court concluded that possession of pipe bombs is a continuing 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 unregistered pipe bombs is not a continuing offense. This argument 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.” * * *

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. * * *

Berndt was not entitled to argue that his crime was completed in 1976 when he made or acquired 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 impression may have biased them against him in their deliberations. Berndt objected to the DVD’s introduction at trial and so our review is for abuse of discretion. * * *

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 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.

Posted by Marcia Oddi on June 19, 2008 02:51 PM
Posted to Ind. (7th Cir.) Decisions