United States v. Michael Berenson ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0638n.06
No. 19-1550
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Nov 10, 2020
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
MICHAEL A. BERENSON, )
)
OPINION
Defendant-Appellant. )
)
Before: GUY, CLAY, and KETHLEDGE, Circuit Judges.
CLAY, Circuit Judge. Defendant Michael Berenson pleaded guilty to engaging in a child
exploitation enterprise in violation of 18 U.S.C. § 2252A(g) and received a 660-month sentence.
He appeals his conviction and sentence, alleging he received ineffective assistance of counsel. For
the reasons set forth below, we DISMISS Defendant’s appeal and DENY his request to recuse the
sentencing judge.
BACKGROUND
From at least January 2012 to November 1, 2014, Defendant was part of a group of
individuals that worked together with the goal and common objective to produce child
pornography on a chatroom-based website (“Website A”). After the group disbanded, Defendant
No. 19-1550, United States v. Michael A. Berenson
continued to be active on Website A, producing child pornography, until the execution of a search
warrant at his home on May 10, 2017.
The child exploitation enterprise was sophisticated and complex. The group’s members
would pretend to be teenage boys or girls, target victims via social media, and work together to
pressure victims to engage in masturbation, and other sexual acts, in web-based chatrooms. Those
acts were recorded via web camera, and the videos were shared among the group, and sometimes
with others. The group’s members, including Defendant, would communicate with each other in
what they called “base” chatrooms. In these chatrooms, the group members would strategize about
how they could convince minor females to perform various sexual acts on web camera that the
group could then record. Group members had different roles, although a member could play more
than one role or switch roles. There were “hunters,” “talkers,” “loopers,” and “watchers.” Hunters,
for example, were tasked with visiting social media sites frequented by minors and convincing
minor females to visit Website A. Talkers like Defendant asked the minor victims to complete
“dares,” eventually escalating into sexual activity.
Defendant recorded hundreds of minor female victims between January 1, 2012 and May
2017. He lied about his age and identity to convince minor females to engage in sexual activity on
web camera. If such efforts were unsuccessful, Defendant would use threats. Defendant
blackmailed at least ten minor females to engage in sexually explicit activity by threatening to
share explicit images and videos of them with their Facebook contacts and teachers.
On August 3, 2017, Defendant was indicted in the Eastern District of Michigan on eight
charges related to the group’s efforts to coerce minor victims to engage in sexually explicit conduct
on web camera so that the group could record the activity. He was the only defendant named in
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the indictment, but he was charged with conspiring with an individual who resided in the Eastern
District of Michigan. Ultimately, Defendant pleaded guilty to one count: Child exploitation
enterprise, in violation of 18 U.S.C. § 2252A(g).
Defendant was represented throughout the district court proceedings by retained counsel,
James C. Thomas. Thomas contemporaneously represented Daniel Walton, who was convicted of
engaging in a child exploitation enterprise involving Website A in a separate case in the Eastern
District of Michigan. Defendant did not raise any concerns about his representation before this
appeal.
On April 22, 2019, a sentencing hearing was held, and the district court imposed a 660-
month sentence of imprisonment.
DISCUSSION
I. Ineffective Assistance of Counsel
Defendant claims that he was deprived of the effective assistance of counsel under Cuyler
v. Sullivan, 446 U.S. 335 (1980), because his attorney had a conflict of interest which adversely
affected his representation. Defendant also contends that Thomas rendered ineffective assistance
of counsel resulting in prejudice under Strickland v. Washington, 466 U.S. 668 (1984).
The government argues that the record is insufficient to decide Defendant’s claims of
ineffective assistance of counsel. “As a general rule, this Court declines to rule on claims of
ineffective assistance of counsel on direct appeal.” United States v. Detloff, 794 F.3d 588, 594 (6th
Cir. 2015) (citation omitted). “We take this course, when, as is often the case, the record is
insufficient to assess the merits of the claim.” Id. (quoting United States v. Smith, 600 F. App’x
991, 993 (6th Cir. 2015)). This is not one of the “rare cases where [counsel’s] error is apparent
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from the existing record,” so consideration of Defendant’s ineffective assistance of counsel claims
is properly deferred in the first instance to a post-conviction proceeding under 28 U.S.C. § 2255.
United States v. Lopez-Medina, 461 F.3d 724, 737 (6th Cir. 2006) (citation omitted).
A. Sullivan Claim
Defendant claims that counsel had a conflict of interest and deprived him of effective
assistance of counsel under Sullivan and Mickens v. Taylor, 535 U.S. 162 (2001). We disagree.
To succeed on a claim that a defendant was denied his right to conflict-free counsel, he
must show “an actual conflict of interest.” Wood v. Georgia, 450 U.S. 261, 273 (1981). “[T]he
possibility of conflict is insufficient to impugn a criminal conviction.” Sullivan, 446 U.S. at 350.
In a case like this one, where neither counsel nor anyone else objected to the multiple
representation, Defendant must show that “a conflict of interest actually affected the adequacy of
his representation.” Id. at 348–49. This means that a defendant must show that the alleged conflict
influenced counsel’s decisionmaking. Mickens, 535 U.S. at 171–72; see Thomas v. Foltz, 818 F.2d
476, 481 (6th Cir. 1987) (observing that “actual conflict” standard requires a defendant to show
that counsel “made a choice between possible alternative courses of action, such as eliciting (or
failing to elicit) evidence helpful to one client but harmful to the other” (citation omitted)).
In this case, the evidence in the record concerning Thomas’ alleged conflict is limited, and
more evidence is needed to decide whether Thomas was ineffective under Sullivan. That
Defendant is alleging ineffective assistance of counsel based on a conflict of interest does not
necessarily make his claim suitable for consideration on direct appeal. This Court has found
“[d]eferring such a fact-intensive issue to a post-conviction proceeding may be appropriate even
where the defendant raises a claim . . . which is not subject to the two-pronged inquiry under
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Strickland.” Detloff, 794 F.3d at 595 (citing United States v. Herrera-Zuniga, 571 F.3d 568, 591–
93 (6th Cir. 2009)).
Defendant argues that counsel’s representation of another Website A defendant created a
conflict of interest. He specifically points to Thomas’ failure to challenge the opening statement
in the government’s sentencing memorandum that “[o]f the more than 27 offenders apprehended
and charged in the Eastern District of Michigan for their conduct on Website A, and the more than
half-dozen that have been located elsewhere in the United States, Michael Berenson is by far the
most culpable.” (Government’s Sentencing Mem., R. 35, Page ID #270) Defendant received, at
660 months, a longer sentence than any other Website A defendant by 168 months, and 294 months
more than Daniel Walton, Thomas’ other Website A client. Defendant asserts that an unconflicted
attorney would have challenged the government’s statement about his culpability relative to other
Website A offenders. But there is no record evidence to back up this assertion. Thomas never
testified why he decided not to challenge this statement in either the sentencing memorandum he
submitted on Defendant’s behalf or at the sentencing hearing. Additionally, it is unclear how the
failure to challenge this particular statement affected the adequacy of Thomas’ representation
when he repeatedly argued that Defendant had reduced culpability because of his autism spectrum
disorder. More information is needed to assess this claim.
Defendant also argues that the district court should have held a hearing to determine
whether he knowingly and intelligently waived Thomas’ conflict. A court is only required to hold
such a hearing when it is aware of counsel’s conflict of interest. Mickens, 535 U.S. at 172–73. It
is not clear on the current record whether this threshold has been met. In his reply, Defendant only
goes so far as to say that the district court was “presumably aware of the relationship between the
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indictment charging [Defendant] and the indictment charging Walton.” (Reply Br. 9–10) His
argument is based on the fact both cases were assigned to Judge Judith E. Levy during the same
period between September 26, 2017 and March 13, 2018. However, the cases were not formally
related, and there is no indication that the district court was aware that Attorney Thomas was
representing clients in both proceedings, let alone that there was a conflict of interest. “‘[T]rial
courts necessarily rely in large measure upon the good faith and good judgment of defense
counsel[,]’ such that ‘[u]nless the trial court knows or reasonably should know that a particular
conflict exists, the court need not initiate an inquiry.’” Smith v. Hofbauer, 312 F.3d 809, 815 (6th
Cir. 2002) (quoting Sullivan, 446 U.S. at 346) (second and third alterations in original). On the
current record, the district court was not required to inquire into the circumstances of Thomas’
concurrent representation of Defendant and Walton.
B. Strickland Claims
To establish a Strickland claim, a defendant must show that counsel’s performance was
deficient and that he was prejudiced by that deficient performance. Strickland, 466 U.S. at 687.
Deficient performance requires that counsel’s representation “fell below an objective standard of
reasonableness,” and there is a “strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Id. at 688–89. More evidence is needed to determine
whether Thomas was ineffective under Strickland.
Defendant argues that counsel was ineffective for failing to challenge venue in the Eastern
District of Michigan. On appeal, Defendant assigns two errors on this point to Attorney Thomas.
First, he argues that Thomas should have challenged the writ ordering the King County Jail in
Washington state to produce Defendant. The supporting petition erroneously stated Defendant had
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been charged with being a felon in possession of a firearm, in violation of 18 U.SC. § 922(g)(1).
Second, he argues that the plea colloquy, which featured an extended discussion about whether a
coconspirator lived in the Eastern District of Michigan, indicates that there was significant doubt
about proper venue. There is no evidence in the record explaining why Thomas decided not to
challenge the defective writ application or venue. Nor does Defendant show that these efforts to
have his case transferred to Washington for a federal or state criminal proceeding would have been
successful. Accordingly, he does not show how Thomas’ alleged deficient representation resulted
in prejudice.
The focus of the Strickland claim, however, is on Thomas’ representation during
sentencing. Defendant argues that Thomas should have challenged the presentence investigation
report because the investigator did not speak to Defendant’s parents. This is despite the fact that
the PSR indicated calls to Defendant’s mother had not been returned. Similarly, Defendant
challenges Thomas’ failure to object during the sentencing hearing to the playing of a video made
by a young woman, Amanda Todd, who committed suicide because of online exploitation, arguing
that Defendant had no part in her death. However, he also recognizes that Thomas told the district
court at the sentencing hearing that Defendant had no contact with Todd and that it was unfair to
attribute responsibility for her death to him.
On the record before the Court, Defendant has also not shown that Thomas’ presentation
of Defendant’s autism spectrum disorder in the sentencing memorandum or at the sentencing
hearing was erroneous, let alone “that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Leonard v.
Warden, Ohio State Penitentiary, 846 F.3d 832, 843–44 (6th Cir. 2017) (quoting Strickland, 466
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U.S. at 687). He has also not shown that Thomas’ expression of sympathy for the victims of
Defendant’s conduct demonstrates that counsel abandoned his duty of loyalty and deprived
Defendant of his right to counsel. See Rickman v. Bell, 131 F.3d 1150 (6th Cir. 1997). There has
not been a sufficient showing that “counsel failed to function in any meaningful sense as the
Government’s adversary.” United States v. Cronic, 466 U.S. 648, 666 (1984). Defendant will be
able to fully litigate this issue in the more appropriate context of a post-conviction proceeding
under 28 U.S.C. § 2255.
II. Reassignment and Recusal Request
Defendant also requests that his case be reassigned on remand or that Judge Levy be
recused from any subsequent § 2255 proceedings due to “deep-seated and unequivocal antagonism
that would render fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 556 (1994).
Defendant challenges statements Judge Levy made during sentencing that he understands as
encouraging his victims and evincing hostility towards him. For example, she declared that “you
and your co-defendants cannot take the humanity from these girls and their families. You can’t
take it from me either. None of us will be destroyed by your conduct.” (Sentencing Hr’g Tr., R. 46,
Page ID #961) Statements revealing hostility to one of the parties, prejudgment of the merits, or
alignment with one of the parties may be indicative of impermissible judicial bias. United States
v. Blood, 435 F.3d 612, 629 (6th Cir. 2006). However, the comments made by the district court in
this case do not rise to the level of judicial bias this Court has held “reveal such a high degree of
favoritism or antagonism as to make fair judgment impossible.” United States v. Lossia, 193 F.
App’x 432, 437 (6th Cir. 2006) (quoting Liteky, 510 U.S. at 555). While we may not have chosen
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to make such statements, we nevertheless conclude that Defendant has not shown that he is entitled
to a different district judge for subsequent proceedings in this case.
Defendant also challenges Judge Levy’s impartiality based on her statements that her
mother is an expert in autism, and that she herself worked with people with autism since childhood.
However, these experiences are materially no different than when a judge “reads newspaper
articles, magazines, or books that may relate to a case that may come before him.” United States
v. Bonds, 18 F.3d 1327, 1330 (6th Cir. 1994) (citations omitted). It is not “extra-judicial knowledge
of disputed facts.” Id. Reassignment or recusal is also not appropriate on this ground.
CONCLUSION
For the reasons given above, we DISMISS Defendant’s appeal and DENY his request for
recusal of the district judge from further proceedings in this case.
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RALPH B. GUY, JR., Circuit Judge, concurring in the judgment. I concur in the
court’s conclusion that the record in this case has not been sufficiently developed to decide
defendant’s ineffective-assistance-of-counsel claims and that these claims should be decided in a
separate proceeding brought under 28 U.S.C. § 2255. I would not, however, address defendant’s
substantive arguments. Once the court concludes that the record is insufficiently developed, that
should be the end of the matter.
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