Submitted: February 15, 2018
from United States District Court for the District of North
Dakota - Bismarck
SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges.
COLLOTON, CIRCUIT JUDGE.
convicted Calvin Bernhardt of several federal offenses:
attempted exploitation of a child, attempted receipt of
images depicting sexual exploitation of a child, possession
of counterfeit obligations, two counts of attempted witness
tampering, and attempted travel with intent to engage in
illicit sexual conduct. The district court sentenced
Bernhardt to a total of 600 months' imprisonment. On
appeal, Bernhardt challenges four counts of conviction and
argues that his sentence is substantively unreasonable. We
reject all of Bernhardt's challenges to the convictions
but one: we conclude that there is insufficient evidence to
support his conviction for attempted travel. We therefore
remand for resentencing based on the remaining five counts of
to the evidence at trial, in July 2015, Bernhardt began
communicating with a woman in the Philippines with the
initials J.O.B. The two communicated primarily through
Facebook Messenger, the social network's online chat
service, but they also sent each other e-mails and spoke by
telephone. During their conversations, J.O.B. told Bernhardt
that she needed financial support. She also told him that she
had a teenage daughter named L.O.B.
first contacted L.O.B. directly in November 2015 using
Facebook Messenger. L.O.B. told Bernhardt that she was
fourteen years old; despite her youth, Bernhardt asked L.O.B.
to send him nude images of herself. Bernhardt told L.O.B.
that if she did what he wanted, he would help J.O.B.
first, L.O.B. refused, telling Bernhardt, "You are bad
guy" and "No thanks. I help my mother. I work hard
too and I will continue my study." But Bernhardt
persisted, offering L.O.B. 10, 000 Philippine pesos
(approximately $200) in exchange for the images. Eventually,
L.O.B. acquiesced and sent Bernhardt several nude pictures of
herself through Facebook Messenger.
his conversations with J.O.B. and L.O.B., Bernhardt discussed
traveling to the Philippines to have sex with L.O.B. at a
hotel in Manila. He told J.O.B. that he wanted her to bring
L.O.B. to a hotel to meet him, and he told L.O.B., "You
and I will do things together at the hotel." He offered
L.O.B. "25, 000 php for one week at the hotel. . . .
Anything goes," and told her, "You and I are going
to play games. . . . Sexxxx games." Bernhardt later told
investigators that his communications about traveling to the
Philippines were just "smoke and mirrors," and
investigators found no evidence that Bernhardt purchased a
plane ticket for travel to the Philippines or reserved a
hotel room there.
enforcement became aware of Bernhardt's communications
with L.O.B. in February 2016. Facebook, Inc., had notified
the National Center for Missing and Exploited Children of a
possible instance of enticement of children for sexual acts.
Investigators traced the messages to Bernhardt's
residence in Tuttle, North Dakota.
enforcement agents then executed a search warrant at
Bernhardt's residence. From the basement, agents seized
Western Union receipts for money that Bernhardt sent to
J.O.B. in the Philippines, numerous electronic devices, and
$34, 640 in suspected counterfeit U.S. currency located in a
cupboard in the bathroom. The agents who examined the money
explained that some of the bills were printed on only one
side; some were printed on both sides using thick paper or
card stock; and some were printed on both sides using paper
that was "not as thick, but probably more consistent
with our currency." Special Agent Trudell of the
Department of Homeland Security testified that the variance
in thickness of the paper used to print the bills
demonstrated a progression in technique and was consistent
with an effort to perfect the bills. The currency also bore
legitimate serial numbers corresponding to genuine currency.
interview with investigators, Bernhardt discussed the origin
of the fake money. He told investigators that he and his
cousin were "just goofing around one day" and
created the money by taking pictures of real bills or
scanning them, printing the images onto paper, and then
cutting the paper into the shape of bills using a paper
cutter. Bernhardt stated that his cousin suggested that they
keep the money for "board games, like Monopoly," or
for poker between the two of them, and denied ever passing
was arrested and charged with attempted exploitation of a
child in violation of 18 U.S.C. § 2251(a) and (e),
attempted receipt of images depicting sexual exploitation of
a child in violation of 18 U.S.C. § 2252(a)(2) and
(b)(1), possession of counterfeit obligations in violation of
18 U.S.C. § 472, and attempted travel with intent to
engage in illicit sexual conduct in violation of 18 U.S.C.
§ 2423(b) and (e).
his arrest, while he was released pending trial, Bernhardt
contacted J.O.B., who had become a witness in the
investigation. Twice he wrote to J.O.B., using a nickname for
her daughter L.O.B.:
Sweetheart, there is a police investigation going on right
now concerning my conversation with princess. If anyone from
the police contacts you or princess, do not answer any
questions. You don't know me. It's for all of our
best interest. They are looking for human trafficking and
separate message, Bernhardt told J.O.B. to "make sure
princess doesn't talk to anyone and delete any nude pics
of her or me, ok?" After law enforcement discovered
these communications, the grand jury charged Bernhardt with
two counts of attempted witness tampering, in violation of 18
U.S.C. § 1512(b)(2) and (b)(3).
pleaded not guilty to the six-count superseding indictment.
After a three-day trial, a jury convicted Bernhardt of all
six counts. The court ...