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likksdaw. 
490 F.34 641 
490 F.3d 641 
(Cite as: 490 F.3d 641) 
U.S. I. Carter 
C.A.8 (S.D.),2007. 
United States Court of Appeals,Eighth Circuit. 
UNITED STATES of America, Appellee, 
William T. CARTER, Appellant. 
No. 05-4414. 
Submitted: Sept. 26,2006. 
Filed: June 18,2007. 
Background: Defendant was convicted of 
sexual abuse of a minor and related crimes, and was 
sentenced to 360 months' imprisonment. The Court 
of Appeals, 410 F.3d 1017, affirmed convictions 
but remanded for resentencing. On remand, the 
United States District Court for the District of 
South Dakota, Charles B. Kommann, J., imposed a 
295-month sentence, and defendant appealed. 
Holdings: The Court of Appeals, Arnold, Cir-
cuit Judge, held that: 
(1) defendant forfeited his Ex Post Facto 
Clause argument, and 
(2) district court made adequate findings to 
support offense level enhancement for obstruction 
of justice based on perjury. 
Affirmed. 
Bye, Circuit Judge, filed opinion concurring in part 
and concurring in the judgment. 
West Headnotes 
ill Constitutional Law 92 C=.2789 
92 Constitutional Law 
92XXIII Ex Post Facto Prohibitions 
92XXIII(A) Constitutional Prohibitions in 
Page I 
General 
92k2789 k. Penal Laws in General. Most 
Cited Cases 
Constitutional Law 92 43=2790 
92 Constitutional Law 
92XXIII Ex Post Facto Prohibitions 
92XXI11(A) Constitutional Prohibitions in 
General 
92k2790 k. Punishment in General. Most 
Cited Cases 
The ex post facto clause is violated when a law de-
fining a crime or increasing punishment for a crime 
is applied to events that occurred before its enact-
ment, to the disadvantage of the offender. U.S.C.A. 
Const. Art. I, § 9, cl. 3. 
121 Criminal Law 110 tl=.1180 
110 Criminal Law 
110XXIV Review 
11C0OCIV(T) Subsequent Appeals 
II0k1180 k. In General. Most Cited Cases 
In defendant's appeal of sentence that was imposed 
for sexual abuse of a minor and related crimes after 
court of appeals remanded his case to district court 
for resentencing, law of the case doctrine did not 
preclude defendant's claim that use of a single, less 
serious offense that occurred after effective date of 
new version of sentencing guidelines as ground for 
application of that version of guidelines in his sen-
tencing for more serious offenses that occurred 
earlier violated Ex Post Facto Clause; although 
court of appeals in opinion remanding case had re-
jected defendant's Ex Post Facto claim based on in-
sufficient evidence that any offense occurred after 
effective date of new guidelines version, court did 
not rule on specific Ex Post Facto issue raised by 
defendant on appeal after resentencing. U.S.C.A. 
Const. Art. 1, § 9, cl. 3; U.S.S.G. § IB1.11(bX2), 
18 U.S.C.A. 
131 Criminal Law 110 €=.1042 
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490 F.3d 641 
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110 Criminal Law 
I I0XXIV Review 
110XXIV(E) Presentation and Reservation in 
Lower Court of Grounds of Review 
110XXIV(E)I In General 
110k1042 k. Sentence or Judgment. 
Most Cited Cases 
Defendant forfeited his argument that district court, 
in resentencing him for sexual abuse of a minor and 
related offenses, violated Ex Post Facto Clause by 
using a single, less serious offense that occurred 
after effective date of new version of sentencing 
guidelines as ground for application of that version 
of guidelines in his sentencing for more serious of-
fenses that occurred earlier; defendant did not raise 
the issue at his original sentencing, on his appeal of 
that sentence, or at resentencing after remand from 
court of appeals. U.S.C.A. Const. Art. 1, § 9, cl. 3; 
U.S.S.G. § IB1.11(bX2), 18 U.S.C.A. 
141 Sentencing and Punishment 350H €=.996 
350H Sentencing and Punishment 
350H1V Sentencing Guidelines 
350HIV(H) Proceedings 
350H1V(H)3 Hearing 
350H1c992 Findings and Statement of 
Reasons 
350H1c996 k. Sufficiency. 
Most 
Cited Cases 
In sentencing defendant for sexual abuse of a minor 
and related offenses, district court made adequate 
findings to support application of sentencing 
guidelines offense level enhancement for obstruc-
tion of justice based on perjury; court stated during 
sentencing hearing that it found that defendant test-
ified falsely as to all different sexual assaults, all of 
which was testimony on material matters, and ad-
ded that the finding was based upon what the court 
saw and heard at trial, and court stated that the 
evidence in defendant's case was as strong as the 
court had seen in any case during nine years on the 
bench and that the court would have found defend-
ant guilty in a bench trial. U.S.S.G. § 3C1.1, 18 
U.S.C.A. 
Page 2 
*642 Counsel who presented argument on behalf of 
the appellant was Jana M. Miner, AFPD, Pierre, SD. 
*643 Counsel who presented argument on behalf of 
the appellee was Mikal G. Hanson, AUSA, Pierre, 
SD. 
Before ARNOLD, BYE, and MELLOY, Circuit 
Judges. 
ARNOLD, Circuit Judge. 
William Carter was originally sentenced to 360 
months in prison after being convicted of sexual ab-
use of a minor and related crimes. We affirmed his 
convictions but remanded for resentencing. See 
United States 
Carter, 410 F.3d 1017 (8th 
Cir.2005XCarter / ). After a hearing, the district 
court *N1 sentenced Mr. Carter to 295 months' im-
prisonment. Mr. Caner appeals, contending that the 
district court violated the a post facto clause of the 
Constitution by imposing an enhancement under 
U.S.S.G. § 4B1.5(bX1), and that it erred by impos-
ing an obstruction-of-justice enhancement without 
making sufficient factual findings, seeU.S.S.G. § 
3C1.1. We afrum. 
FN I. The Honorable Charles B. Korn-
mann, United States District Judge for the 
District of South Dakota. 
I. 
[1) We review Mr. Carte  a post facto claim 
de nova. See United States I Mashek 406 F.3d 
1012, 1016 (8th Cir.2005). The a post facto clause 
)
is violated when a law defining a crime 
increas-
ing punishment for a crime, see Collins 
Young-
blood. 497 U.S. 37, 43, 110 S.Ct. 2 15, III 
L.Ed.2d 30 (1990), is applied to events that 
tmei 
oc-
curred before its enac 
t, to the "disadvantage" 
of the offender, Weaver 
Graham, 450 U.S. 24, 
29, 101 S.Ct. 960, 67 L. .2d 17 (1981). In Miller 
t
Florida, 482 U.S. 423, 435-36, 107 S.Ct. 2446, 
L.Ed.2d 351 (1987), the Supreme Court held 
that retroactive application of state sentencing 
guidelines that subjected offenders to longer sen-
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490 F.3d 641 
490 F.3d 641 
(Cite as: 490 F.3d 641) 
tences than they would have received at the time 
the crime was committed, violated the ex post facto 
clause applicable to the states, seeU.S. Const., art. 
I, § 10, c 1. 1. And we have held that the ex post 
facto clause applicable to Congress is similarly vi-
olated by retroactive application of a more ggerous 
federal sentencing guideline. United States I Bell, 
991 F.2d 1445, 1448 (8th Cir.1993); seeU.S. Const. 
art. I, § 9, cl. 3. 
Initially, we note that since the Supreme Court 
decided United States' Booker, 543 U.S. 220, 125 
S.Ct. 738, 160 L.Ed.2d 621(2005), at least one of 
our sister circuits has held that the ex post facto 
clause does not apply tq. the now-advisory 
guidelines. See United States I Demaree, 459 F.3d 
791, 794 (7th Cir.2006), petition for cert. filed,No. 
co,
06-837 
(U.S. Dec. 11, 2006); see also United 
States 
Barton, 455 F.3d 649, 655 n. 4 (6th 
Cir.2 
. But in a case decided after Booker, we 
"recognize[d] that 'retrospective application of the 
Guidelines implicates the a post facto clause,' " 
though we took into account post-offense amend-
ments to the guidelines when determining the over-
all reasonableness of the defendant's sentence. 
United States I Larrabee, 436 F.3d 890, 894 (8th 
Cir.2006) (quoting Bell, 991 F.2d at 1448). Given 
our decision in Larrabee, we will proceed to ad-
dress Mr. Carter's a post facto claim. 
The guidelines themselves refer to the a post 
facto clause: under U.S.S.G. § 1B1.11(a) and 
(b)(I), courts are directed to apply the version of 
the guidelines in effect on the date of sentencing 
unless to do so would violate the a post facto 
clause, in which case the guidelines in effect on the 
date of the crime should be used. The so called one-
book rule requires*644 that the "Guidelines Manual 
in effect on a particular date be applied in its en-
tirety." 
U.S.S.G. 
§ 
1B1.11(bX2). 
And 
the 
guidelines specify that "[i]f the defendant is con-
victed of two offenses, the first committed before, 
and the second after, a revised edition of the 
Guidelines Manual became effective, the revised 
edition of the Guidelines Manual is to be applied to 
Page 3 
both offenses." U.S.S.G. § 1B1.11(bX3). 
[2] In this appeal, Mr. Carter argues that in his 
case, by applying the one-book rule, seeU.S.S.G. § 
IB1.11(bX2), and using the date when the last 
crime was committed to determine which edition of 
the 
guidelines 
to 
apply, 
cf. 
U.S.S.G. 
§ 
1B1.11(bX3), the district court violated the a post 
facto clause. According to the defendant, the court 
violated the clause by sentencing him under a ver-
sion of the guidelines that included U.S.S.G. § 
4B1.5(bX1), an enhancement for repeat sex-
offenders that went into effect on November 1, 
2001, seeU.S.S.G. app. C, amend. 615, thereby in-
creasing his offense level and guideline sentencing 
range "for the three most serious pre-November, 
2001 grouped Counts." Mr. Carter argues that even 
if, as we held in Carter I, the evidence supported a 
finding that one of his crimes (Count II) occurred 
after November 1, 2001, he was unconstitutionally 
disadvantaged by the application of § 4B1.5(bX1) 
to the three more serious crimes that occurred be-
fore that date and co dd not be grouped with Count 
II. Cf. United States I Ortland, 109 F.3d 539, 547 
(9th Cir.1997): 
The government maintains that Mr. Carter's 
claim is precluded by the law-of the-case doctrine 
because of our ruling against him on an a post 
facto claim in Carter I, 410 F.3d at 1026-27. In 
general, "the law-of-the-case doctrine posits that 
when a court decides upon a rule of law, that de-
cision should continue to govern the same issues 
subsequent stages in the same case." Arizona 
California, 460 U.S. 605, 618, 103 S.Ct. 1382, 
L.Ed.2d 318 (1983); see also United States 
Bartsh, 69 F.3d 864, 866 (8th Cir.1995). 
At the first sentencing hearing, the district 
court carefully followed the provisions of § IB1.11. 
The court rust rejected the 2003 guidelines manual 
in effect at that time based on ex post facto con-
cerns, see § 181.1(a), (bX1), explaining that the 
then-current manual might produce a higher sen-
tence because it included a new prohibition on 
downward departures for sexual crimes and elimin-
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490 F.3d 641 
(Cite as: 490 F.3d 641) 
ated a multiple-victim requirement for an enhance-
ment under § 4B1.5(b). Then the court referred to 
the one-book rule, see§ 1B1.11(bX2), and the need 
to use the guidelines manual in effect when the last 
crime was committed, see§ 1B1.11(bX3). Follow-
ing these provisions, the district court applied the 
manual that "went into effect on November I, 2001, 
in between the defendant's offenses of conviction" 
(though it mistakenly referred to it as the 2002, 
rather than the 2001, manual). The court found gen-
erally that "at least one" of Mr. Carter's crimes oc-
curred after § 4B1.5(bX1) went 
into effect 
(November 1, 2001), and it also relied on the in-
dictment to determine that Count VII occurred after 
that date. 
In his first appeal, Mr. Caner maintained in his 
brief that the district court erred by enhancing his 
sentence under § 4B1.5(b)(1)"where the prosecu-
tion's evidence failed to prove that any of the 
charged offenses" occurred after that enhancement 
went into effect. He asserted that the "trial testi-
mony did not prove an offense" after that date and 
also contended that the district court should have 
relied on the evidence, rather than the indictment, 
to determine when Count VII occurred. Signific-
antly, Mr. Carter did not challenge the constitution-
ality of *645§ IB1.11 (bX2) or § 1B1.11 (b)(3) or 
the district court's decision to calculate his sentence 
by applying only "one book" of sentencing 
guidelines, i.e., the one in effect when his last crime 
was committed. And though he now contends that 
the court should not have relied on the date of a 
lesser crime to increase his sentence for earlier 
more serious crimes that could not be grouped with 
the later crime, in his first appeal he mentioned 
neither the relative seriousness of the crimes nor 
their groupability. We rejected Mr. Carter's previ-
ous a post facto claim in Caner I, 410 F.3d at 
1027, because evidence regarding Count II suppor-
ted the district court's finding that at least one of the 
crimes occurred after November 1, 2001. We noted 
that the victim in Count II, who was a minor at the 
time of the crime, testified that Mr. Caner had 
sexual contact with her in December, 2001, and, 
Page 4 
when pressed on cross-examination, estimated the 
date as "around November 2, 2001." After remand, 
the district judge reiterated that at least one of Mr. 
Carter's crimes occurred after § 4B1.5 went into ef-
fect, basing his finding on the "trial testimony ... 
that the contact happened around November 2, 
2001." 
[3] We agree with Mr. Carters contention in 
his reply brief that the law-of-the case doctrine does 
not apply because we "did not issue a legal ruling" 
in Carter I addressing whether the a post facto 
clause "prohibits using a single less serious, later 
offense to justify the retroactive application" of a 
guideline to increase the sentencing range "for 
earlier ungrouped more serious offenses." But we 
did not address the issue because Mr. Carter did not 
raise it, and we conclude that the issue has been 
forfeited. 
Mr. Caner asserts that he did not raise the ar-
gument earlier because at the first sentencing the 
district court specifically referred only to Count VII 
and did not mention Count II when deciding to ap-
ply the 2001 guidelines. We believe, however, that 
the argument is not dependent on the court men-
tioning Count II, but is a challenge to the district 
court's determination that the 2001 guidelines ap-
plied because at least one crime occurred after 
November 1, 2001. And Mr. Carter's rationale for 
not making his current a post facto argument is 
particularly unpersuasive because Counts H and VII 
are virtually identical: they both charge Mr. Caner 
with abusive sexual contact with a minor in viola-
tion of 18 U.S.C. § 1153, on dates after November 
I, 2001, and neither crime was groupable with the 
earlier more serious offenses, seeU.S.S.G. § 3131.2 
cmt. (n. 3, 4). Therefore we believe that Mr. 
Carters argument would be equally available re-
gardless of whether the district court referred to 
Count II or Count VII when determining which ver-
sion of the guidelines to apply. 
Not until this appeal did Mr. Caner argue that 
the ex post facto clause precluded the application of 
the 2001 guidelines even if one of his crimes took 
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490 F.3d 641 
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place after November I, 2001. This is not simply a 
case where the defendant appeals an issue that he or 
she di not present to the district court. Cf. United 
States 
Rees. 447 F.3d 1128, 1130 (8th Cir.2006). 
Here Mr. Carter did not raise this issue at his first 
sentencing, in his appeal from that sentence, or at 
resentencing. We do not permit piecemeal appeals, 
and we choose not to afford Mr. Caner an oppor-
tunity (unavailable to other defendants) to raise a 
new issue at this late date merely because his case 
r
remanded on other grounds. See United States 
Palmer, 
Palmer,
 F.3d 760, 767 (8th Cir.2002); 
sited 
States 
Montana, 979 F.2d 136, 138 (8th 
Cir.1992); United States I Fiallo-Jacome, 874 F.2d 
1479, 1481-83 (11th Cir.1989). We conclude that 
Mr. Carter has forfeited his *646 current ex post 
facto claim, and thus we decline to address it on the 
merits. 
[4) Mr. Carter next argues that the district court 
failed to make adequate findings to support an ob-
struction-of-justice enhancement based on perjury, 
seeU.S.S.G. § 3C1.1. Since Mr. Caner objected to 
the enhancement, the court was required to "review 
the evidence and make independent findings neces-
saryis
to 
tablish ... obstruction of justice." United 
States 
Dunnigan, 507 U.S. 87, 95, 113 S.Ct. 
1111, 1 2 L.Ed.2d 445 (1993). Although it is 
preferable for the court "to address each element of 
the alleged perjury in a separate and clear finding," 
a finding "that encompasses all of the factual pre-
dicates for a fmding of perjury" is sufficient. Id. 
We conclude that there is no merit to Mr. 
Carter's contention that the district court did not 
make adequate findings here. The court stated dur-
ing the sentencing hearing that it found "that Mr. 
Caner ... testified falsely as to all these different 
sexual assaults, all of which was testimony on ma-
terial matters." The judge added that he was 
"making that fmding based upon what I saw and 
heard at trial." At another point, the judge stated 
that the evidence in Mr. Carter's case was "as 
Page 5 
strong as [he'd] seen in any case" during nine years 
on the bench and that he would have found Mr. 
Carter guilty in a bench trial. 
In Dunnigan, the Court concluded that the dis-
trict court's findings that "the defendant was un-
truthful at trial with respect to material matters" 
and that the defendant's "failure to give truthful 
testimony on material matters ...were [sic) designed 
to substantially affect the outcome of the case" 
were sufficient to support the enhancement. Id. 
(emphasis in Dunnigan). The district court un-
doubtedly made independent findings in Mr. 
Carter's case, and we believe that the court's state-
ments are substantially similar to those that we 
have previously. concluded are sufficient. See, e.g., 
I 
United States 
 Kessler, 321 F.3d 699, 703 (8th 
Cir.2003). 
Finally, we note that Mr. Caner 
takenly re-
lied in his brief on United States 
Cabbell, 35 
F.3d I 
, 1261 (8th Cir.1994) (quoting United 
States 
Willis, 940 F.2d 1136, 1140 (8th 
Cir.1991 , cert. denied,507 U.S. 971, 113 S.Ct. 
1411, 122 L.Ed.2d 782 (1993)), for the proposition 
that an obstruction-of-justice enhancement should 
not be imposed based upon a defendant's testimony 
" 'if a reasonable trier of fact could find the testi-
mony true.' " This statement, first made in Willis, 
940 F.2d at 1140, was based directly on an applica-
tion note to U.S.S.G. § 3C1.1 (n.1) (1990) that re-
quired a sentencing court to evaluate any suspect 
testimony or statements in the light most favorable 
to the defendant when determining whether he or 
she had committed penury. But the Sentencing 
Commission amended that application note in 1997 
"so that it no longer suggests the use of a 
heightened standard of proof,"U.S.S.G. app. C, 
amend. 566, and thus there was no longer a basis 
for our statement in Willis. Rather than viewing the 
evidence favorably to the defendant or to the ver-
dict, the district court now makes independent find-
ings based on a preponderance of the evidence, and 
we review thoje findings for clear error only. See 
United States I Guel-Contreras, 468 F.3d 517, 522 
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490 F.3d 641 
490 F.3d 641 
(Cite as: 490 F.3d 641) 
(8th Cir.2006). Understandably, Mr. Carter does 
not contend here that the fmdings of the district 
court are clearly erroneous. 
For all of the above reasons, we arum the 
judgment of the district court. 
*647 BYE, Circuit Judge, concurring in pan and 
concurring in the judgment. 
I join in Part II of the majority's opinion and its 
judgment. I also agree with Part I to the extent the 
majority recognizes Carter cannot now assert his ex 
post facto challenge because he did not raise it at 
resentencing. I write separately because I disagree 
with the majority's view, expressed in Part I, that 
Carter could have raised the challenge at his first 
sentencing or in his appeal from that sentence. 
At Carter's resentencing, the district court ap-
plied the 2001 Guidelines, citing the conduct in 
Count VII (Resentencing Tr. at 34) and Count II 
(Resentencing Tr. at 39) as the basis for their ap-
plication. Carter objected, arguing 
the 
2000 
Guidelines should be used but in doing so merely 
"restate[d]" the objection raised at the first senten-
cing-that the Count VII conduct occurred before the 
2001 Guidelines' November 1, 2001, effective date. 
Caner did not argue at resentencing, as he does in 
this appeal, that, regardless of when committed, the 
conduct in Count II could not be used to ap 
U.S.S.G. § 481.5(bXf ) to grouped Counts IV,
and VI. Thus, Caner forfeited the a post fa o 
challenge he raises for the first time in this appeal 
and, as it is committed to our discretion, the major-
ity appropriately declines to 
view the challenge 
for plain error. See Gendron 
United States, 295 
F.2d 897, 902 (8th Cir.1961) , "The normal rule is 
that an appellate court should not consider ques-
tions which have not been properly raised in the tri-
al court and upon which the trial court has had no 
opportunity to pass."). 
But I am not as convinced as my colleagues it 
is reasonable to hold Carter's failure to raise his ex 
Page 20 of 28 
Page 6 
post facto challenge at the first sentencing or in his 
first appeal against him. At his first sentencing, the 
district court applied the 2001 Guidelines because it 
determined the offense charged in Count VII oc-
curred after their effective date. Believing the evid-
ence showed the conduct charged in Count VII oc-
curred in August or September of 2001, Carter ap-
pealed, arguing the district court violated the a 
post facto clause of the Constitution by applying § 
481.5(bX1), which was not in effect when he com-
mitted Count VII. We agreed with Caner "[t]he 
evidence relevant to Count VII that was offered at 
trial pertained to an incident that occurred in A 
gust or September of (2001)." United States 
Carter, 410 F.3d 1017, 1025 (8th Cir.2005). 
we affirmed the application of the 2001 Guidelines, 
finding, sua sponte, the conduct charged in Count II 
might have occurred after November 1, 2001, stat-
ing, "[W]e cannot conclude that ... the district court 
clearly erred in determining that the defendant per-
petrated at least one of his offenses after the effect-
ive date of § 4B1.5(b)(/)." Id. at 1027. 
The relevance of the timing of the conduct 
charged in Count II arose "out of the correction of 
the sentence" and was "made newly relevant by 
[our] decision-whe r by the reasoning or the res-
ult." United States I Lee, 358 F.3d 315, 326 (5th 
Cir.2004). In other words, the relevance of the tim-
ing of the conduct in Count II "became extant as a 
consequence of our mandate." Id. Since the district 
court only referenced Carter's Count VII conduct in 
applying the 2001 Guidelines at the first senten-
cing, it was not in Carter's interest to point out to 
the district court the Count II conduct might be an 
alternative basis for applying the 2001 Guidelines 
but argue such an application would violate the a 
post facto clause for the reasons stated in this 
second appeal. This is especially true here, where 
Carter's counsel would likely have violated her pro-
fessional obligation to zealously and competently 
advocate Carter's position had she volunteered to 
the district court another*648 means to increase his 
sentence. See S.D. Rules of Prof 1 Conduct pre-
amble ("As advocate, a lawyer zealously asserts the 
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490 F.3d 641 
(Cite as: 490 Fid 641) 
client's position under the rules of the adversary 
system."); Id. Rule 1.1 ("A lawyer shall provide 
competent representation to a client."). Even if she 
believed the conduct in Count II occurred after the 
effective date of the 2001 Guidelines (the opposite 
appears to be true), I do not think her candor oblig-
ation required her to hang her client. Nonetheless, I 
concur in the ultimate outcome of this case for the 
reasons given. 
C.A.8 (S.D.),2007. 
U.S. 
Carter 
490 F.3d 641 
END OF DOCUMENT 
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Wastlaw. 
431 F.3d 1104 
431 F.3d 1104, 69 Fed. R. Evid. Serv. 12 
(Cite as: 431 Fad 1104) 
H 
U.S. I. Blazek 
C.A.8 (lowa),2005. 
United States Court of Appeals,Eighth Circuit. 
UNITED STATES of America, Plaintiff-Appellee, 
v. 
Michael David BLAZEK, Defendant-Appellant. 
No. 05-1705. 
Submitted: Sept. 13, 2005. 
Filed: Dec. 21, 2005. 
Rehearing and Rehearing En Banc Denied Feb. I, 
2006." 
FN• Judge Colloton did not participate in 
the consideration or decision of this matter. 
Background: Defendant was convicted in the 
United States District Court for the Southern Dis-
trict of Iowa, James E. Grimier, I., attempted en-
ticement of a minor for sex, travel in interstate 
commerce to engage in prohibited sex acts with a 
minor, and two child pornography offenses. De-
fendant appealed. 
Holdings: The Court of Appeals, Loken, Chief 
Judge, held that: 
(1) evidence was sufficient to support convic-
tion for attempted enticement of a minor for sex; 
(2) evidence was sufficient to support convic-
tion for travel in interstate commerce to engage in 
prohibited sex acts with a minor; 
(3) prior conviction for abusive sexual contact 
with minor was admissible; 
(4) to support conviction for traveling in inter-
state commerce to engage in sexual act with minor 
between the ages of 12 and 16 years old, govern-
ment was not required to prove that defendant knew 
specific age of the victim or that he knew that the 
requisite age difference existed between offender 
Page 1 
and victim; and 
(5) convictions for attempted enticement of a 
minor for sex, and travel in interstate commerce to 
engage in prohibited sex acts with a minor were 
"covered sex crimes," within meaning of senten-
cing guideline providing for increased sentence 
upon commission of such crimes. 
Affirmed. 
West Headnotes 
III Criminal Law 110 C=1144.13(3) 
110 Criminal Law 
110XXIV Review 
110XX1V(M) Presumptions 
110k1144 
Facts 
or Proceedings Not 
Shown by Record 
110k1144.13 Sufficiency of Evidence 
110k1144.13(2) 
Construction 
of 
Evidence 
110k1144.13(3) k. Construction 
in Favor of Government, State, or Prosecution. 
Most Cited Cases 
Criminal Law 110 C=1144.13(5) 
110 Criminal Law 
110XX1V Review 
110XXIV(M) Presumptions 
110k1144 
Facts 
or 
Proceedings Not 
Shown by Record 
II0k1144.13 Sufficiency of Evidence 
110k1144.13(5) k. Inferences or 
Deductions from Evidence. Most Cited Cases 
Criminal Law 110 C=01144.13(6) 
110 Criminal Law 
110XXIV Review 
110XXIV(M) Presumptions 
110k1144 
Facts 
or 
Proceedings Not 
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431 F.3d 1104 
431 F.3d 1104, 69 Fed. R. Evid. Sere. 12 
(Cite as: 431 F.3d 1104) 
Shown by Record 
110k1144.13 Sufficiency of Evidence 
110k1144.13(6) k. Evidence Con-
sidered; Conflicting Evidence. Most Cited Cases 
In reviewing the sufficiency of the evidence to sup-
port a conviction, an appellate court views the evid-
ence in the light most favorable to the government, 
resolving evidentiary conflicts in favor of the gov-
ernment, and accepting all reasonable inferences 
drawn from the evidence that support the jury's ver-
dict. 
(21 Infants 211 0=13 
211 Infants 
21111 Protection 
211k13 k. Protection of Health and Morals. 
Most Cited Cases 
Evidence was sufficient to prove defendant inten-
ded to entice a minor to engage in illegal sexual 
activity, as required to support conviction for at-
tempted enticement of a minor for sex; the evidence 
presented at trial showed that the defendant en-
gaged in explicit sexual conversations over the in-
temet with an undercover officer posing as a 
15-year-old male, and then arranged to meet the 
boy. 18 U.S.C.A. § 2422(b). 
131 Criminal Law 110 C=1030(1) 
110 Criminal Law 
110XXIV Review 
110XX1V(E) Presentation and Reservation in 
Lower Court of Grounds of Review 
110X.X1V(E)1 In General 
110k1030 Necessity of Objections in 
General 
110k1030(1) k. In General. Most 
Cited Cases 
A "plain error" is one that is clear or obvious. 
Fed.Rules Cr.Proc.Rule 52(b), 18 U.S.C.A. 
141 Commerce 83 gE
82.10 
83 Commerce 
8311 Application to Particular Subjects and 
Page 23 of 28 
Page 2 
Methods of Regulation 
8311(3) Offenses and Prosecutions 
83k82.5 Federal Offenses and Prosecu-
tions 
83k82.10 k. Offenses Involving Activ-
ity Unlawful Under State Law. Most Cited Cases 
Infants 211 e=13 
211 Infants 
21111 Protection 
211k13 k. Protection of Health and Morals. 
Most Cited Cases 
Evidence was sufficient to prove that defendant in-
tended to have sex with a minor between the ages 
of 12 and 16, as required to support conviction for 
travel in interstate commerce to engage in prohib-
ited sex acts with a minor between the ages of 12 
and 16; undercover officer posing as minor in inter-
net chat room told defendant about a month before 
their planned meeting that he was 15 years old and 
that he would be turning 16 a couple of months 
after the scheduled meeting, so that when defendant 
made the interstate trip for the meeting, he intended 
to meet a boy under the age of 16. 18 U.S.C.A. §§ 
2243(a), 2423(b). 
PI Commerce 83 C=112.10 
83 Commerce 
8311 Application to Particular Subjects and 
Methods of Regulation 
8311(3) Offenses and Prosecutions 
83k82.5 Federal Offenses and Prosecu-
tions 
83k82.10 k. Offenses Involving Activ-
ity Unlawful Under State Law. Most Cited Cases 
Infants 211 C=43 
211 Infants 
21111 Protection 
211k13 k. Protection of Health and Morals. 
Most Cited Cases 
A violation of statute prohibiting travel in interstate 
commerce to engage in prohibited sex acts with a 
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431 F.3d 1104 
431 F.3d 1104, 69 Fed. R. Evid. Serv. 12 
(Cite as: 431 F.3d 1104) 
minor between the ages of 12 and 16 turns not on 
the actual age of the intended victim, but on wheth-
er the defendant traveled in interstate commerce 
with the requisite criminal intent for the purpose of 
engaging in a sexual act with a minor between the 
ages of twelve and sixteen. 18 U.S.C.A. § 2423(b). 
161 Criminal Law 110 €=369.2(5) 
110 Criminal Law 
110XVII Evidence 
110XVII(F) Other Offenses 
110k369 Other Offenses as Evidence of 
Offense Charged in General 
1101:369.2 Evidence Relevant to Of-
fense, Also Relating to Other Offenses in General 
110k369.2(3) Particular Offenses, 
Prosecutions for 
110k369.2(5) k. Sex Offenses; 
Offenses Relating to Children. Most Cited Cases 
Charged offense of traveling in interstate commerce 
to engage in sexual act with minor between the ages 
of 12 and 16 years old was "offense of sexual as-
sault ," and thus, defendant's prior conviction for 
abusive sexual contact with minor was admissible 
in prosecution for the charged offense, under feder-
al rule of evidence providing for admission of prior 
sexual assault offenses in sexual assault prosecu-
tions. 18 U.S.C.A. § 2423(b); Fed.Rules Evid.Rule 
413(a, d), 28 U.S.C.A. 
171 Commerce 83 fe=82.10 
83 Commerce 
831I Application to Particular Subjects and 
Methods of Regulation 
831I(J) Offenses and Prosecutions 
83k82.5 Federal Offenses and Prosecu-
tions 
83k82.10 k. Offenses Involving Activ-
ity Unlawful Under State Law. Most Cited Cases 
Infants 211 €=.13 
211 Infants 
21111 Protection 
Page 24 of 28 
Page 3 
211k13 k. Protection of Health and Morals. 
Most Cited Cases 
To support conviction for traveling in interstate 
commerce to engage in sexual act with minor 
between the ages of 12 and 16 years old, it was not 
necessary for the government to prove that the de-
fendant knew the specific age of the victim or that 
he knew that the requisite age difference existed 
between the offender and the victim. 18 U.S.C.A. § 
2423(b). 
[81 Criminal Law 110 €=805(1) 
110 Criminal Law 
110XX Trial 
I 10XX(G) Instructions: Necessity, Requis-
ites, and Sufficiency 
110k805 Form and Language in General 
110k805(1) k. In General. Most Cited 
Cases 
Criminal Law 110 C=.822(1) 
110 Criminal Law 
110XX Trial 
110XX(G) Instructions: Necessity, Requis-
ites, and Sufficiency 
110k822 Construction 
and 
Effect of 
Charge as a Whole 
110k822(1) k. In General. Most Cited 
Cases 
In reviewing challenges to jury instructions, the 
Court of Appeals recognizes that the district court 
has wide discretion in formulating the instructions, 
and it will affirm if all of the jury instructions, 
when read as a whole, fairly and adequately contain 
the law applicable to the case. 
191 Sentencing and Punishment 350H €=,780 
350H Sentencing and Punishment 
350HIV Sentencing Guidelines 
350HIV(E) Prior or Subsequent Misconduct 
350Hk780 k. Grade, Degree or Classifica-
tion of Other Offense. Most Cited Cases 
Defendant's convictions for attempted enticement 
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Page 25 of 28 
431 F.3d 1104 
431 F.3d 1104, 69 Fed. R. Evid. Serv. 12 
(Cite as: 431 Fid 1104) 
of a minor for sex, and travel in interstate com-
merce to engage in prohibited sex acts with a minor 
were "covered sex crimes," within meaning of sen-
tencing guideline providing for increased offense 
level and criminal history category when defendant 
committed covered sex crime, the career offender 
provision did not apply, and he committed at least 
one prior sex offense; the guideline referenced a 
statute, which specifically included defendant's of-
fenses. 18 U.S.C.A. §§ 2422(b), 2243(a, b); 
U.S.S.G. § 4B1.5(a). 
*1106 B. John Bums, argued, Assistant Public De-
fender, Des Moines, IA, for appellant. 
Richard Lee Richards, AUSA, argued, Des Moines, 
IA, for appellee. 
Before LOKEN, Chief Judge, WOLLMAN and 
BYE, Circuit Judges. 
LOKEN, Chief Judge. 
Michael Blazek appeals his conviction and sen-
tence on charges of attempted enticement of a 
minor for sex, travel in interstate commerce to en-
gage in prohibited sex acts with a minor, and two 
child pornography offenses. He argues that the 
evidence was insufficient to convict him of the en-
ticement and travel offenses, the district court r"" 
erred in admitting a prior sexual assault conviction, 
a jury instruction was misleading, and the court 
erred in imposing a sentence enhancement under 
U.S.S.G. § 4B1.5 for repeated sexual offenses 
against minors. We affirm. 
FN I. The Honorable James E. Gritzner, 
United States District Judge for the South-
ern District of Iowa. 
I. 
In July 2001, Blazek entered an intemet "male 
for male" chat room from his computer in Des 
Moines and then sent an instant message asking 
"Brian" for his age and location. Brian responded 
that he was a 15 year old male in Chicago. Brian 
was in fact Inspector Dan Everett of the Chicago 
Page 4 
Police Department posing as a teenage boy to in-
vestigate Internet crimes against children. Blazek 
and Brian discussed their respective sexual experi-
ences. Blazek stated that he preferred "[yjounger 
smooth guys" and described his sexual preferences. 
Blazek and Brian continued their instant message 
and e-mail conversations for fifteen months. At the 
end of May 2002, Blazek became more explicitly 
sexual, inviting Brian to give him a massage and 
suggesting it could lead to sex. In July, Blazek gave 
a detailed description *1107 of how he would mas-
sage Brian and said, "[s]ometimes when guys get 
playful they lose their clothes." In September, 
Blazek engaged in graphic sexual conversations, 
discussing oral sex and suggesting a three-way 
sexual encounter with one of Brian's friends. 
Blazek arranged to meet Brian on October 26 
at a restaurant in Chicago. Blazek was arrested 
when he arrived at the restaurant from Iowa. His in-
temet conversations with "Brian" and his trip to 
Chicago were the basis for the convictions for at-
tempting to entice a minor to engage in illegal 
sexual activity in violation of 18 U.S.C. § 2422(b), 
and for traveling in interstate commerce to engage 
in an illegal sexual act with a minor in violation of 
18 U.S.C. § 2423(a). After Blazek traveled to 
Chicago, postal inspectors obtained a warrant, 
searched his apartment, and seized his computer. 
They found hundreds of images and movies of child 
pornography. These materials were the basis for his 
convictions for the receipt and possession of child 
pornography 
in 
violation of 
18 
U.S.C. §§ 
2252(aX2) and (aX4)(B). 
[1] Blazek argues the evidence was insufficient 
to convict him of the enticement and interstate 
travel offenses. In reviewing the sufficiency of the 
evidence, "[wje view the evidence in the light most 
favorable to the government, resolving evidentiary 
conflicts in favor of the government, and accepting 
all reasonable inferences drawn from the eviden
that su 
the jury's verdict." United States I. 
Gaona-
 408 F.3d 500, 504 (8th Cir.2005) 
(quotation omitted). 
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431 F.3d 1104 
431 F.3d 1104, 69 Fed. R. Evid. Serv. 12 
(Cite as: 431 F.3d 1104) 
[2] Blazek argues that the evidence was insuffi-
cient to prove he intended to entice a minor to en-
gage in illegal sexual activity because Inspector 
Everett was the one doing the enticing. Like the 
district court, we disagree. Blazek began the rela-
tionship by contacting Brian and engaging in sexual 
conversations after learning Brian was fifteen. 
After extensive breaks in their communications, it 
was usually Blazck who reestablished the intemet 
relationship. The jury instructions included the is-
sues of entrapment and predisposition to commit 
the crime charged. Given the explicitly sexual talks 
that preceded Blazek's trip to Chicago in October 
2002, a reasonable jury could find that Blazek in-
tended to entice a minor to engage in illegal sex. 
On appeal, Blazek argues for the first time that 
the evidence was insufficient to convict him of at-
tempting to entice a minor because Inspector Ever-
ett was not a minor. We review this issue for plain 
error. Fed.R.Crim.P. 52(b). The contention is based 
r
upon a recent 
ision of the district court in 
United States 
fielder, No. 05.00125.01-Cr. 
(W.D.Mo. Aug. , 2005) (Judgment of Acquittal), a 
ruling that is ni pending on appeal in this court, 
United States 
fielder, appeal docketed. No. 
05-3387 (8th Cr. Sep. 1, 2005). The decision in 
1
fielder is inconsistent wi 
and did not cite, our de-
cision in United States 
Patten, 397 F.3d 1100 
(8th Cir.2005), that uphe d an attempt conviction 
under 18 U.S.C. § 2422(b) in which the enticed 
"minor" was an undercover police officer. Though 
this issue was not raised or discussed in Patten, it 
was raised and squarely rejected in United States I 
116
Meek, 
F.3d 705, 717-20 (9th Cir.2004); United 
States 
Root, 296 F.11 1222, 1227-28 (11th 
Cir.200 , cert. denied537 U.S. 1176, 123 S.Q. 
1006, 154 L.Ed.2d 921 (2003); and United States 
Farner, 251 F.3d 510 (5th Cir.2001). 
lip
[3] A "plain" error • 
one that is "clear" or 
"obvious." United States 
Olano, 507 U.S. 725, 
734, 113 S.O. 1770, 123 .Ed.2d 508 (1993). The 
Supreme Court dlussed when an error must be 
plain in Johnson 
United States, 520 U.S. 461, 
Page 26 of 28 
Page 5 
468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997): 
*1108 We ... hold that in a case such as this-
where the law at the time of trial was settled and 
clearly contrary to the law at the time of appeal-it is 
enough that an error be "plain" at the time of appel-
late consideration. 
In this case, the law at the time of trial was not 
settled in this circuit; we had not addressed the is-
sue. Thus, Johnson leaves open the question wheth-
er Blazek must prove that the error alleged was 
plain at the time of trial, which it clearly was not. 
But in any event, even if the rule in Johnson ap-
plies, and even if this court should ultimately affirm 
the district court's decision in fielder, thereby creat-
ing a conflict with at least three other circuits, the 
error is not plain at this time. Therefore, the evid-
ence was sufficient to convict Blank of attempted 
enticement of a minor. 
[4] Finally, Blazek argues the evidence was in-
sufficient to convict him of traveling in interstate 
commerce "for the purpose of engaging in any 
sexual act ... with a person under 18 years of age 
that would be in violation of Chapter 109A" if it 
occurred within the territorial jurisdiction of the 
United States. 18 U.S.C. § 2423(b) (2002).na The 
indictment charged that Blazek traveled with the in-
tent to engage in a sexual act with a person who had 
attained the age of twelve years but not the age of 
sixteen years in violation of 18 U.S.C. § 2243(a), 
which is part of chapter 109A. Blazek argues that 
the evidence was insufficient to convict him of a § 
2243(a) violation because "Brian" said he was fif-
teen in July 2001, when Blazek and Brian first met 
in a chat room, and therefore Brian must have been 
sixteen by the time Blazek traveled to Chicago in 
October 2002. 
FN2. This statutory prohibition was reor-
ganized but not substantively altered in 
2003. Seel8 U.S.C. §§ 2423(b) and (ft. 
[5] A § 2423(b) travel violation turns not on 
the actual age of the intended victim, but on wheth-
er the defendant traveled in interstate commerce 
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431 F.3d 1104 
431 F.3d 1104, 69 Fed. R. Evid. Serv. 12 
(Cite as: 431 F.3d 1104) 
with the requisite criminal intent, here, for the pur-
pose of engaging in a sexual act with a minor 
between the ages of twelve and sixteen. See Root. 
296 F.3d at 1231-32. At trial, Inspector Everett test-
ified that "Brian" told Blazek in July 2002, long 
after their initial conversation, that he was fifteen 
and would be sixteen in January 2003. In Septem-
ber 2002, the month before the planned meeting in 
Chicago, Brian again told Blazek he was fifteen. In 
addition, Postal Inspector Robert Williams testified 
that, after Blazek's arrest, he told officers that he 
understood Brian was fifteen. Thus, there was suffi-
cient evidence for a reasonable jury to find that 
Blazek traveled for the purpose of engaging in a 
sexual act with someone who was not yet sixteen 
years old. 
II. 
[6) At trial, over Blazek's objection, the gov-
ernment introduced evidence of his 1997 conviction 
for Abusive Sexual Contact with a Minor in viola-
tion of 18 U.S.C. § 2244(a)(1) and testimony that 
the conviction resulted from Blazek's fondling of 
his eleven-year-old nephew. The district court ad-
mitted this evidence under Rule 413(a) of the Fed-
eral Rules of Evidence, which provides that, "[i]n a 
criminal case in which the defendant is accused of 
an offense of sexual assault, evidence of the de-
fendant's commission of another offense ... of sexu-
al assault is admissible." Blazek argues that Rule 
413(a) does not apply because he was not charged 
with an "offense of sexual assault." Like the dis-
trict court, we disagree. 
Rule 413(d) defines an "offense of sexual as-
sault" to include any federal or state crime "that in-
volved-(I) any conduct proscribed*1109 by chapter 
109A of title 18, United States Code."Rule 413 
does not require that the defendant be charged with 
a chapter 109A offense, only that the instant of-
fense involve conduct proscribed by chapter 109A. 
Here, Count Two charged Blank with violating 18 
U.S.C. § 2423(b) by traveling in interstate com-
merce for the purpose of "knowingly engaging in a 
Page 27 of 28 
Page 6 
sexual act with a person who has attained the age of 
12 years but has not attained the age of 16 years." 
That conduct is proscribed by chapter 109A. Seel8 
U.S.C. § 2243. Thus, the district court properly 
ruled that the prior conviction evidence was ad-
missible under Rule 413. In addition, the court did 
not abuse its discretion in declining to exclude that 
evidence as unfairly prejudicial u4er the Rule 403 
balancing test. See United States I LeCompte, 131 
F.3d 767, 769-70 (8th Cir.1997). 
[7] Instruction 15 explained to the jury that the 
charged travel offense required the government to 
prove that Blazek traveled for the purpose of enga-
ging in a sexual act with a minor at least twelve but 
less than sixteen years old. The last sentence of that 
instruction added: "It is not necessary for the 
United States to prove that the defendant knew the 
specific age of the victim or that he knew that the 
requisite age difference existed between the offend-
er and the victim." On appeal, Blazek argues, as he 
did to the district court, that the last sentence "is a 
correct statement of the law, but it is misleading to 
the jury" because to violate 18 U.S.C. § 2243"the 
defendant would have to know or have to have an 
idea as to how old that victim was." 
[8] "In reviewing challenges to jury instruc-
tions, this Court recognizes that the district court 
has wide discretion in formulating the instructions, 
and we will affirm if the entire charge to the jury, 
when read as a whole, fairly and adequately con-
Pi
ths the law applicable to the case." United States 
Sdoulam, 398 F.3d 981, 993 (8th Cir.2005) 
quotations omitted). Here, Instruction 13 told the 
jury the government must prove that Blazek 
traveled "for the purpose of engaging in a sexual 
act ... with an individual that was less than eighteen 
years of age." Instruction 14 explained that "[t]he 
government need only prove that the defendant 
knew, had reason to know or thought that the per-
son was a minor." The challenged sentence in In-
struction 15 was consistent with Instructions 13 and 
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431 F.3d 1104 
431 F.3d 1104, 69 Fed. R. Evid. Sew. 12 
(Cite as: 431 F.3d 1104) 
14 and, as Blazek admits, correctly stated the ap-
plicable law. The instructions as a whole were not 
inherently confusing in requiring the jury to distin-
guish between the intent to engage in sexual acts 
with a minor, and specific knowledge of the vic-
tim's age. There was no abuse of discretion. 
IV. 
[9] At sentencing, the district court increased 
Blank's offense level and criminal history category 
under U.S.S.G. § 4B1.5(a) (2001),”8 which ap-
plied when "the defendant's instant offense of con-
viction is a covered sex crime," the career offender 
provision does not apply, and the defendant com-
mitted the instant offense "subsequent to sustaining 
at least one sex offense conviction." The court then 
sentenced Blazek to 235 months in prison, the bot-
tom of his advisory guidelines range. Blazek argues 
that § 4B 1.5(a) does not apply and therefore his 
sentence is unreasonable. We review a challenge to 
the district court's interpretation and application of 
the advisory guidelines de novo and the court's fat 
tual findings for clear error. United States 
Mashek, 406 F.3d 1012, 1017 (8th Cir.2005). 
FN3. The Guidelines in effect when Blazek 
committed the offenses of conviction. 
*1110 Application note 2 to § 481.5 defined 
"covered sex crime" to include "(A) an offense, 
perpetrated against a minor, under ... (iii) chapter 
117 ... or (B) an attempt or a conspiracy to commit 
any offense described 
in subdivisions (AXi) 
through (iii) of this note." Blazek's enticement and 
travel offenses were violations of chapter 117. Ap-
plication note 1 defined "minor" as a person under 
the age of 18 but defined "minor victim" to include 
"an undercover law enforcement officer who rep-
resented to the defendant that the officer was a 
minor." Relying on this distinction, Blank argues 
that he did not commit "covered sex crimes" be-
cause Inspector Everett was a "minor victim," not a 
"minor." We disagree. Application note 2 expressly 
included as covered sex crimes attempts to commit 
Page 28 of 28 
Page 7 
chapter 117 offenses against minors. As explained 
in Part I of this opinion, this court in Patten and at 
least three other circuits have upheld convictions 
for attempted enticement under 18 U.S.C. § 2422(b) 
even though the intended victim was in fact an un-
dercover police officer, because the defendant be-
lieved the victim to be a minor. Thus, by including 
attempts in the definition of covered sex crimes, ap-
plication note 2 expressly included offenses in 
which the intended victim was a "minor victim" 
rather than a "minor," as those terms were defined 
in application note 1. Because Blazek's offenses of 
conviction included one or more covered sex 
crimes (the attempts), and because he admittedly 
had a prior sex offense conviction, the district court 
properly applied § 481.5(a). Blazek does not con-
tend that his sentence was otherwise unreasonable. 
The judgment of the district court is affgmed. 
C.A.8 (lowa),2005. 
U.S. I. Blank 
431 F.3d 1104, 69 Fed. R. Evid. Serv. 12 
END OF DOCUMENT 
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EFTA00192060

Sandy Berger - Wikipedia, the free encyclopedia 
Page I of 7 
Sandy Berger 
From Wikipedia, the free encyclopedia 
Samuel Richard "Sandy" Berger (born October 
28, 1945) served as the 19th United States National 
Security Advisor under President Bill Clinton from 
1997 to 2001. In his position, he helped to 
formulate the foreign policy of the Clinton 
Administration. During this time he advised the 
President regarding the Khobar Towers bombing, 
Operation Desert Fox and other actions against Iraq, 
the NATO bombing campaign against Yugoslavia, 
responses to the terrorist bombings of American 
embassies in Kenya and Tanzania, and the 
administration's policy of engagement with the 
People's Republic of China.Ell He was also one of 
the prominent actors of the Camp David 2000 
Summit. 
Samuel R. "Sandy" Berger 
National Security Advisor to President Bill Clinton 
Born 
October 28, 1945 
Sharon, Connecticut 
Occupation 
Lobbyist, Financial Services industry, 
Campaign Advisor 
Spouse 
Susan Berger 
Before joining the administration Berger had 
I Children 
Three 
worked as an international trade attorney. Currently, 
he is chairman of an international advisory firm and chairman of the board of an international 
investment fund. Living in the Georgetown section of Washington, D.C., he is married to Susan Berger 
and has three children (two daughters and one son). 
In April 2005, Berger pled guilty to a misdemeanor charge of unauthorized removal and retention of 
classified material from the National Archives in Washington. According to the lead prosecutor in the 
case Berger only took copies of classified information and that no original material was destroyed; 
however, there is notable controversy and speculation that he might have removed or destroyed originals 
of other unknown documents as well. 
Berger currently serves as a foreign policy adviser to Senator Hillary Clinton in her presidential 
campaign.(2)
Contents 
■ 1 Early life 
■ 2 Clinton administration 
■ 2.1 Fined for conflict of interest 
■ 2.2 Chinese nuclear espionage 
■ 3 Post-government 
■ 3.1 Convicted of mishandling classified terror documents 
■ 4 See also 
■ 5 External links 
■ 6 References 
http://en.wikipedia.org/wiki/Sandy_Berger 
2/27/2008 
EFTA00192061

Sandy Berger - Wikipedia, the free encyclopedia 
Page 2 of 7 
Early life 
Originally from Millerton, New York where his parents ran an Army-Navy store (and born in nearby 
Sharon, Connecticut), Berger earned his Bachelor of Arts degree from Cornell University in 1967 and 
his Juris Doctor (J.D.) degree from Harvard Law School in 1971. At Cornell, Berger was a member of 
the Quill and Dagger society with Paul Wolfowitz and Stephen Hadley. Opposed to the Vietnam War, 
Berger began working for Senator 
McGovern's presidential campaign in 1972. While there, he 
met Bill Clinton, forming a friendship that would last for decades. Berger later urged Clinton to run for 
president.(31
After the McGovern campaign, Berger gained experience working in a variety of government posts, 
including serving as Special Assistant to former New York City Mayor John Lindsay and Legislative 
Assistant to former U.S. Senator Harold Hughes of Iowa and Congressman Joseph Resnick of New 
York. He was also Deputy Director of Policy Planning for the U.S. State Department from 1977 to 1980 
under Secretary of State Cyrus Vance during the Carter administration J41
After leaving the State Department, Berger went on to join the law firm Hogan & Hanson where he 
helped expand the firm's international law practice. As a partner, he opened the fum's first two 
international offices, in London and Brussels.[3) "Sandy Berger," Nancy Pelosi said in 1997 prior to 
becoming Speaker of the House, "was the point person at... Hogan & Hanson... for the trade office of 
the Chinese government. He was a lawyer-lobbyist."(51
Clinton administration 
Berger served as Senior Foreign Policy Advisor to Governor Clinton during the campaign, and as 
Assistant Transition Director for National Security of the 1992 Clinton-Gore Transition. During 
Clinton's first term of office (1993-1997), Berger served as deputy national security advisor, under 
Anthony Lake in the National Security Council. In Clinton's second term of office, Berger succeeded 
Lake as Special Assistant to the President for National Security Affairs from 1997 to 2001. 
Fined for conflict of interest 
In November 1997, Berger paid a $23,000 civil penalty to settle conflict of interest allegations stemming 
from his failure to sell his stock of Amoco Corporation as ordered by the White House. Berger was 
advised by the White House to sell the stock in early 1994. Berger said he had planned to sell the stock, 
but then forgot. He denied knowingly participating in decisions in which he had a financial interest. 
With no evidence that Berger intended to break the law, the U.S. Justice Department determined a civil 
penalty was adequate for a "non-willful violation" of the conflict of interest law.[6] 
Chinese nuclear espionage 
Further information: Cox Report and Timeline of Cox Report controversy 
In 1999, Berger was criticized for failing to promptly inform 
President Clinton of his knowledge that the People's Republic of 
China had managed to acquire the designs of a number of U.S. nuclear warheads. Berger was originally 
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larsi 
Sjelk" 
briefed of the espionage by the United States Department of Energy 
(DOE) in April 1996, but did not inform the president until July 
1997.171181 
A number of Republicans, including then presidential hopeful 
Lamar Alexander, called for Berger's resignation. They accused 
him of ignoring the allegations of Chinese espionage. "For his 
unwillingness to act on this serious matter, Mr. Berger should 
resign", Alexander said. "If he does not, he should be relieved of his 
duties by President Clinton."(91 President Clinton rejected the calls: 
"The record is that we acted aggressively," Clinton said. "Mr. 
Berger acted appropriately."1101
I asked DOE to widen and deepen its investigation, to intensify as they were planning 
66 
their counterintelligence efforts to brief the Congress[.] [W]ithin several weeks the FBI 
had opened up a full investigation on the prime suspect. So I took the actions that I 
believe were appropriate. I get an awful lot of threat information every day. I have to 
make a judgment as to what I brief the president on and what I don't. In 1997, when this 
was clearly a pattern and a systemic problem, I thought it was essential for the president 
99 
to know — Sandy Berger, May 29, 1999.(11]
Post-government 
Sand) Berger with President 
Clinton and Madeleine Albright 
After leaving the Clinton administration, Berger became chairman of Stonebridge International, an 
international advisory firm he co-founded in 2001 which focuses on aiding companies in their expansion 
into markets such as Brazil, China, India, and Russia.(41 Berger is also Chairman of the DB Zwim 
Global Advisory Board, an international investment fund and merchant capital provider founded in 2001 
and with offices throughout North America, Europe and Asia. (12) Berger is an Advisory Board member 
for the Partnership for a Secure America, a not-for-profit organization dedicated to recreating the 
bipartisan center in American national security and foreign policy. 
In late 2003, Berger was called to testify before the 9/11 Commission regarding steps taken against 
terrorism during his tenure and the information he provided to his successor, Condoleezza Rice. At the 
time, Berger was also acting as an informal foreign policy advisor to Senator John Kerry during his 
campaign for the presidency. He quit his advisory role after controversy arose regarding his preparations 
for testifying before the September 11 committee.(13)
Convicted of mishandling classified terror documents 
On July 19, 2004, it was revealed that the U.S. Justice Department 
was investigating Berger for stealing classified documents in 
October 2003, by removing them from a National Archives reading 
room prior to testifying before the 9/11 Commission. The 
documents were five classified copies of a single report 
commissioned from Richard Clarke, covering internal assessments 
of the Clinton administration's handling of the unsuccessful 2000 
millennium attack plots. An associate of Berger saidE141 Berger took 
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The National Archives building in 
Washington, DC 
When initially questioned by reporters, Berger claimed it was 
accidental that he put the top-secret copies in his attache-case and 
handwritten notes in his jacket and pants pockets. He later, in a guilty plea, admitted to deliberately 
removing the copies and cutting three up with scissors. Archive staff stated they witnessed Berger, on 
more than one occasion, stuffing into his pants and into his jacket papers he was illegally removing.(15) 
Two of the copies were recovered by DOJ investigators and returned to the archives. 
Berger eventually pleaded guilty to a misdemeanor charge of unauthorized removal and retention of 
classified material on April 1, 2005. Under a plea agreement, U.S. attorneys recommended a fine of 
$10,000 and a loss of security clearance for three years. However, on September 8, U.S. Magistrate 
Judge Deborah Robinson increased the fine to $50,000 at Berger's sentencing. Robinson stated, "The 
court finds the fine [recommended by government prosecutors] is inadequate because it doesn't reflect 
the seriousness of the offense."[161 Berger was also ordered to serve two years of probation and to 
perform 100 hours of community service.(17)
Critics suggest Berger destroyed primary evidence revealing anti-terrorism policies and actions, and that 
his motive was to permanently erase Clinton administration pre-9/11 mistakes from the public record. 
Public statements to this effect have been made by talk-radio host Rush Limbaugh,[18] former Clinton 
campaign advisor Dick Morris,[t91 USA Today reporter Jack Kelley,[2°I multiple times by Fox News 
correspondent John Gibson (the last as recently as December 20061211), and former House Speaker 
Dennis Hasten (Republican-Illinois), who said: "What information could be so embarrassing that a man 
with decades of experience in handling classified documents would risk being caught pilfering our 
nation's most sensitive secrets?"[221
After a long investigation, the lead prosecutor Noel Hillman, chief of the Justice Department's Public 
Integrity Section, stated that Berger only removed classified copies of data stored on hard drives stored 
in the National Archives, and that no original material was destroyed [231 His and the FBI's opinion of 
the case initially led The Wall Street Journal to editorialize against the allegations.(241[25)
On December 20, 2006, more than a year after Berger pleaded guilty and was sentenced, a report issued 
by the archives inspector detailed how Berger had perpetrated the crime. Inspector General Paul 
Brachfeld reported that Berger took a break to go outside without an escort. "In total, during this visit, he 
removed four documents ... Mr. Berger said he placed the documents under a trailer in an accessible 
construction area outside Archives 1 (the main Archives building)." Berger acknowledged that he later 
retrieved the documents from the construction area and returned with them to his officeP6)(27) 
one copy in September 2003 and four copies in October 2003. 
The report also stated "There were not any handwritten notes on the documents Mr. Berger removed 
from the archives. Mr. Berger did not believe there was unique information in the three documents he 
destroyed. Mr. Berger never made any copies of these documents." In the end, according to the report, 
"[Mr. Berger] substituted his sense of sensitivity instead of thinking of classification" in deciding to 
remove the documents.[281
In January 2007, departing Republican staff of The United States House Committee on Oversight and 
Government Reform released a report titled Sandy Berger's Theft of Classified Documents: Unanswered 
Questions. It states that the FBI or the Department of Justice never questioned Berger about two earlier 
visits he made on May 30, 2002 and July 18, 2003, when he reviewed White House working papers not 
yet inventoried by the National Archives, and speculates that, had Berger previously been entirely 
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successful in actions at which he was later caught, "nobody would know they were gone." It also 
contains the FBI's statement as to why they concluded there was no exposure on those dates: "Berger 
was under constant supervision".[29lin][3°) Acting Assistant Attorney General Richard Heating disputed 
the findings of the Oversight Report and rejected the need for a polygraph since 'no new facts regarding 
law enforcement aspects of this investigation' had been discovered.[31)
The report did, however, cause the Wall Street Journal to, in January 2007, retract their initial opinion of 
the case, saying there are substantial questions concerning the truth of Berger's statements and that other 
documents may have been removed. They now argue that Berger's taking of multiple copies of the same 
document contradict his statement that he took them only for his personal research, since they note that 
he could have simply taken one copy.(321[15) Mr. Berger continues to insist that he took the copies of the 
same document for personal convenience, and thought them overclassified (i.e. the information they 
contained was not actually sensitive to national security). 
On May 17, 2007, Berger relinquished his license to practice law as a result of the Justice Department 
investigation. Saying, "I have decided to voluntarily relinquish my license." He added that, "While I 
derived great satisfaction from years of practicing law, I have not done so for 15 years and do not 
envision returning to the profession. I am very sorry for what I did, and I deeply apologize." By giving 
up his license, Berger avoided cross-examinination by the Bar Counsel regarding details of his thefts.133)
See also 
■ History of the United States National Security Council 1993-2003 
o Iraq disarmament crisis timeline 1997-2000 
• Mary McCarthy (CIA) 
External links 
■ Archives Staff Was Suspicious of Berger (http://www.washingtonpost.comfac2/wp-dyn/A4189-
2004Jul2171anguage=printer) Washington Post 
■ United States National Security Council page at the White House website 
(http://www.whitehouse.gov/nsc/) 
■ Report on Berger (PDF) (http://i.a.cnn.netIctm/2006/images/12/21/berger.document.pdf), Office 
of the Inspector General, National Archives and Records Administration 
References 
1. A Apple Jr., IL W., "A Domestic Sort With Global Worries" (http://select.nytimes.com/gst/abstract.html? 
res-F70F15F8345C00768EDDA10894D1494D81&n=Top%2fReference%2ffimes%20Topics%21People% 
21B%21Berger/o2c%20Samuel%20R%2e), New York Times, August 25, 1999 
2. A Hillary Clinton's Advisor (http://www.ethicsscoreboard.com/list/berger2.html) 
3 
A a  b Ahrens, Frank, "The Reluctant Warrior" (http://www.washingtonpost.comAvp-
srv/inatl/longtentiliraq/keyplayers/berger022498.htm), Washington Post, February 24, 1998 
4. A b Stonebridge website (http://www.stonebridge-intemational.com/bios/bio01.html), Retrieved: January 
10, 2007 
5. A Benton', Nat, "Dinner With Gen. Chi" (http://users.aol.com/beachbt/genchi.txt), Washington Post, January 
26, 1997 
6. A "Berger Agrees To Pay Penalty " (http://www.cnn.com/ALLP0LITICS/1997/11/10/email/berger/), 
CNN.com, November 10, 1997 
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7. 
A Genh, Jeff and Risen, James, "China Stole Nuclear Secrets From Los Alamos, U.S. Officials 
Say" (http://seleclnytimes.com/gst/abstract.html? 
res-FA0B17F73E5C0C7A8CDDAD0894D1494D818:n=Top%2fReference%2(Times%20Topics% 
2fPeople%2fB%2fBerger%2c%20Samuel%20R%2e), New York Times, March 6, 1999 
8. 
A "The White House and China" (http://taiwansecurity.org/News/NYT-990306.htm), New York Times, 
Editorial, April 9, 1999 
9. 
A "Clinton's security adviser takes heat for China nuclear 
scandal" (http://www.cnn.com/US/9903/10/nuclear.secrets.02/), CNN.com, March 11, 1999 
10. A Gerstenzang, James and Drogin, Bob, "Clinton Defends Response In China Espionage Case", Los Angeles 
Times, March 12, 1999 
11. 
A Transcript (http://wvAv.pbs.org/newshounbb/europe/jan-june99/berger_5-27.html), NewsHour with Jim 
Lehrer, PBS, May 27, 1999, Retrieved: May 27, 2006 
12. A Schurr, Stephen, "DB Zwirn hires Clinton aide" (http://www.stonebridge-
intemational.com/press/news010.html), Financial Times, March 15, 2006 
13. A "Sandy Berger Quits Kerry 
Team" (http://www.cbsnews.com/stories/2004/07/19/national/main630625.shtml), CBSNews.com, July 20, 
2004 
14. A CNN.com - Sandy Berger to plead guilty on documents charge - Apr I, 2005 
(http://edition.am.com/2005/LAW/04/01/berger.plea0 
15. na b Smith, is Jeffrey, Berger Case Still Roils Archives, Justice Dept., Washington Post, February 21, 2007 
(http://www.washingtonpost.cotn/svp-dyn/content/article/2007/02/20/AR2007022001344.html) 
16. A Sherman, Mark, "Berger Pleads Guilty to Taking Materials" (http://www.sfgate.com/cgi-bintarticle.cgi? 
f=/n/a/2005/04/01/national/w111624S64.DTL), Associated Press via SFGate.com, April 2, 2005 
17. 
A a 6 Margasak, Larry, "GOP Contradicts Justice Department" (http://www.guardian.co.ulduslatest/story/0„-
6334264,00.html), Associated Press, January 10, 2007 
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A "Limbaugh: Sandy Berger incident "far worse" than Abu Ghraib 
(http://mediamatters.org/iterns/200407230011)", Media Matters for America, July 23, 2004. Retrieved on 
2006-12-22. 
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A Dick Morris. "Sandy Berger Rolls Over for Bill and Hill 
(http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=17647)", April 8, 2005. Retrieved on 2006-12-
23. 
20. A "Conservatives baselessly linked Sandy Berger to Atta investigation 
(http://mediamatters.org/items/200508160002)", Media Matters for America, August 16, 2005. Retrieved on 
2006-12-22. 
21. 
A "Why I Never Should Have Had Sandy Berger on 'The Big 
Story' (http://www.foxnews.com/story/0,2933,238163,00.html)", FOX News, December 21, 2006. Retrieved 
on 2006-12-23. 
22. 
A "The speaker speaks (http://swew.powerlineblog.com/archives/007216.php)", Powerline, July 21, 2004. 
Retrieved on 2006-12-22. 
23. 
A Seper, Jeny. "Berger fined for taking papers (http://www.washtimes.com/national/20050909-122225-
2387r.htm)", The Washington Times, September 9, 2005. Retrieved on 2006-12-22. 
24. 
A "Berger's Plea" (http://opinionjournal.com/editorial/feature.html?id=110006521), Editorial, Wall Street 
Journal, April 6, 2005 
25. 
A The Berger File (http://www.opinionjoumal.com/editorial/feature.html?id=110006534). Opinion Journal. 
The Wall Street Journal (April 8, 2005). Retrieved on 2006-12-22. 
26. A Lichtblau, Eric, "Report Details Archives Theft by Ex-
Adviser" (http://www.nytimes.com/2006/12/21/washington/2lberger.html), New York Times, December 21, 
2006 
27. A Margasak, Larry, "Report Says Berger Hid Archive 
Documents" (http://apnews.myway.com/article/20061220/D8M4R7DO0.html), Associated Press, December 
20, 2006 
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A "Office of the Inspector General, National Archives and Records Administration report (page 9) 
(littp://i.a.cnn.net/cmi/2006/images/12/21/berger.document.pdf)". 
29. A Sandy Berger's Theft of Classified Documents: Unanswered Questions 
(http://republicans.oversight.house.gov/Media/PDFs/BergerReport010907.pdf), U.S. House of 
Representatives, January 9, 2007 
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