In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-2928

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSEPH BERNDT,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 06 CR 101—Robert L. Miller, Jr., Chief Judge.

____________

ARGUED FEBRUARY 13, 2008—DECIDED JUNE 19, 2008

____________

Before CUDAHY, POSNER and EVANS, Circuit Judges.

CUDAHY, Circuit Judge. Joseph Berndt lived in the

basement of his parents’ South Bend, Indiana home for

over 30 years. In 2006, his parents decided to sell their

home and, in June of that year, Berndt left South Bend

and went to live in South Dakota. When the family began

to clean up the house in early August to get it ready

for sale, they made an unsettling discovery. It seems

that Berndt was something of a pack rat. But in addition

to the usual accumulations of old clothes, tools and junk,

Berndt’s nest included a substantial arsenal of deadly

weapons: nine pipe bombs wrapped with roofing nails,
2 No. 07-2928

62 firearms and thousands of rounds of ammunition, to

be specific. The area around the weapons had been

rigged with alarms and motion detectors. 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.

Berndt was indicted for possession of unregistered

pipe bombs in violation of 26 U.S.C. §§ 5845, 5861(d) and

5871 in September 2006. Section 5861(d) provides: “It

shall be unlawful for any person . . . to receive or possess

a firearm which is not registered to him in the National

Firearms Registration and Transfer Record . . . .” A pipe

bomb is a “firearm” under Title 26. See 26 U.S.C. § 5845.

Berndt filed a motion to dismiss the indictment, alleging

that the five-year statute of limitations in 18 U.S.C. § 3282

barred his prosecution. He asserted that he came to

possess the bombs 30 years prior to their discovery by

police, and that his crime of possession of unregistered

firearms was completed when he took possession of the

pipe bombs and failed to register them. On this reasoning,

the statute of limitations lapsed 25 years prior to his

indictment. The district court denied his motion and a

jury convicted Berndt after a two-day trial. On August 7,

2007, Berndt was sentenced to 51 months imprisonment

and three years supervised release.

Berndt raises three issues in this appeal. First, Berndt

argues that the district court erred in denying his motion
No. 07-2928 3

1 At oral argument, Berndt conceded that he cited the wrong

statute of limitations before the district court. The statute of

limitations for possession of an unregistered firearm, an

offense arising under the internal revenue laws, is three years.

26 U.S.C. § 6531.

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.” Toussie v. United States,

397 U.S. 112, 115, 90 S. Ct. 858, 25 L. Ed. 2d 156 (1970).

Our precedent makes clear that possession is a continuing offense. See United States v. Fleischli, 305 F.3d 643,

658 (7th Cir. 2002) (“Possession of a firearm is a continuing

offense which ceases only when the possession stops.”)

(superseded by statute on other grounds); United States v.

Winnie, 97 F.3d 975, 976 (7th Cir. 1996) (statute of limitations did not begin to run until defendant no longer

possessed contraband); United States v. Ballentine, 4 F.3d

504, 507 (7th Cir. 1993). This view is shared by our sister

circuits, see, e.g., United States v. Zidell, 323 F.3d 412, 422
4 No. 07-2928

(6th Cir. 2003); United States v. Smith, 266 F.3d 902, 904 (8th

Cir. 2001); United States v. Blizzard, 27 F.3d 100, 102 (4th

Cir. 1994); United States v. D’Angelo, 819 F.2d 1062, 1066

(11th Cir. 1987), and accords with common sense. Everyday

experience tells us that we possess things until we lose

them, abandon them or they are taken from us.

It makes no difference that the statute under which

Berndt was prosecuted does not expressly state that

possession of unregistered firearms is a continuing

offense. The very nature of possession of pipe bombs

is “such that Congress must assuredly have intended

that it be treated as a continuing [offense].” Toussie, 397

U.S. at 115, 90 S. Ct. 858. Each day that Berndt continued to

possess the bombs brought a “renewed threat of the

substantive evil Congress sought to prevent.” Id. at 122,

90 S. Ct. 858. That Berndt may have made the bombs or

otherwise acquired them in 1976 is irrelevant. He possessed them until law enforcement authorities seized

them from his parents’ home and he was indicted just

weeks after he stopped possessing the bombs, well

within the limitations period. Adopting Berndt’s position

that possession is not a continuing offense would enable

criminals to keep dangerous and illegal things—guns,

drugs, bombs—if they are able to conceal them for the

statutory limitations period. This result is an obvious

absurdity.

Berndt seeks to escape the result dictated by our precedent by arguing that his case is like Toussie. The defendant

in Toussie had failed to register for the draft within five

days of his eighteenth birthday in violation of federal

law. He argued that his crime was completed when he

failed to register in 1959 and that the five-year statute of

limitations barred his prosecution in 1967. The Su-
No. 07-2928 5

preme Court agreed. Berndt’s case is obviously distinguishable. Berndt was not charged with failure to register

pipe bombs; rather, he was charged with the possession

of unregistered pipe bombs.

In his second challenge to his conviction, Berndt

argues that the district court committed reversible error

when it refused to tender his proposed instruction on

the statute of limitations defense. In reviewing jury instructions, we “must determine from looking at the

charge as a whole, whether the jury was misled in any

way and whether it had understanding of the issues and

its duty to determine those issues.” United States v.

Fawley, 137 F.3d 458, 467 (7th Cir. 1998) (quoting United

States v. Abdelkoui, 19 F.3d 1178, 1182 (7th Cir. 1994)). A

defendant is entitled to a jury instruction on his theory

of the case if:

(1) the instruction represents an accurate statement of

the law; (2) the instruction reflects a theory that is

supported by the evidence; (3) the instruction reflects

a theory which is not already part of the charge; and

(4) the failure to include the instruction would deny

the [defendant] a fair trial.

United States v. Hendricks, 319 F.3d 993, 1006 (7th Cir. 2003)

(quoting United States v. Swanquist, 161 F.3d 1064, 1075

(7th Cir. 1998)) (alteration in original). Berndt contends that

he was entitled to argue to the jury that the statute of

limitations barred his prosecution. But Berndt was charged

with possessing pipe bombs in 2006. Since the jury had

to conclude that he possessed the pipe bombs that

were seized by law enforcement agents in August 2006

in order to find him guilty, there is no statute of limitations issue. Berndt was not entitled to argue that his

crime was completed in 1976 when he made or acquired
6 No. 07-2928

the bombs because that is an inaccurate statement of

the law. Thus, the district court properly refused to

tender Berndt’s proposed instruction.

Finally, Berndt argues that he was unfairly prejudiced

when the government played a DVD to the jury that

showed his living quarters in the basement of his parents’

home where the pipe bombs were discovered. Berndt’s

objection arises from the fact that the DVD footage

includes images of Nazi memorabilia that was in the

basement. He asserts that the jury may have inferred

that he is a member of a hate group, and that this 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. United States

v. Wiszowaty, 506 F.3d 537, 540 (7th Cir. 2007). A district

court may exclude relevant evidence “if its probative

value is substantially outweighed by the danger of unfair

prejudice.” Fed. R. Evid. 403; United States v. Smith,

502 F.3d 680, 686 (7th Cir. 2007), cert. denied, 128 S. Ct. 1270

(2008).

The district court’s decision to admit the DVD into

evidence was well within its discretion. The video

footage was probative because it was taken hours after

Berndt’s family discovered the pipe bombs and showed

where the devices were found. The DVD also showed

the various alarms and motion detectors that had been

rigged around the basement. The risk of unfair prejudice

was slight. The jury knew that Berndt had a collection of

World War II memorabilia; the government stated as

much in its opening statement and defense counsel elicited

testimony from a witness that American and German

World War II paraphernalia were found in the basement.

The potentially objectionable objects comprised a black
No. 07-2928 7

and white photograph of Hitler, a couple of boxes containing miscellaneous badges that are unlikely to be

identifiable to a person viewing them for a few seconds, and a box containing several books with Nazi

images and symbols on their covers. The objectionable

images appeared for a very brief period of time and posed

a negligible risk of unfairly prejudicing Berndt.

For the above reasons, we AFFIRM the judgment of the

district court.

USCA-02-C-0072—6-19-08