262 F.3d 322 (4th Cir. 2001), 00-4584, United States v. Buculei

Docket Nº:00-4584
Citation:262 F.3d 322
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CATALIN LIVIO BUCULEI, Defendant-Appellant. THE CENTER FOR INDIVIDUAL RIGHTS, Amicus Curiae.
Case Date:August 17, 2001
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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262 F.3d 322 (4th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

CATALIN LIVIO BUCULEI, Defendant-Appellant.

THE CENTER FOR INDIVIDUAL RIGHTS, Amicus Curiae.

No. 00-4584

United States Court of Appeals, Fourth Circuit

August 17, 2001

Argued: June 7, 2001

Appeal from the United States District Court for the District of Maryland, at Baltimore. William M. Nickerson, District Judge.

(CR-99-332-WMN)

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[Copyrighted Material Omitted]

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COUNSEL ARGUED: Elizabeth Linn Pearl, Assistant Federal Public Defender, Greenbelt, Maryland, for Appellant. Hans Frank Bader, CENTER FOR INDIVIDUAL RIGHTS, Washington, D.C., for Amicus Curiae. Barbara Slaymaker Sale, Assistant United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, Greenbelt, Maryland, for Appellant. Michael E. Rosman, Kristofor J. Hammond, CENTER FOR INDIVIDUAL RIGHTS, Washington, D.C., for Amicus Curiae. Lynne A. Battaglia, United States Attorney, Baltimore, Maryland, for Appellee.

Before WILKINSON, Chief Judge, and MICHAEL and KING, Circuit Judges.

Affirmed by published opinion. Judge King wrote the opinion, in which Chief Judge Wilkinson joined. Judge Michael wrote an opinion concurring in part and dissenting in part.

OPINION

KING, Circuit Judge:

Catalin Buculei appeals his convictions and sentence in the District of Maryland

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under 18 U.S.C. S 2251(a)1 and S 18 U.S.C. S 2251A(b)(2).2 These convictions arose from Buculei's activities surrounding three automobile trips he made between New York and Maryland in early 1999, with the intention of engaging in sexual activity with a minor, and to carry out his attempt to create in Maryland a visual depiction of a minor engaged in sexually explicit conduct. For the reasons set forth below, we affirm.

I.

In December of 1998, Buculei, who was then thirty-eight years of age and living in New York City, began chatting on the Internet with a thirteen-year-old girl named Megan, who lived in Maryland. Megan, who was having trouble with her family and at school, apparently turned to Buculei for support and friendship. Soon thereafter, the pair began conversing on the telephone, and they made plans to meet on January 18, 1999, near Megan's home. On that date, Buculei drove from New York to Maryland, rented a room at a motel, and waited approximately two hours for Megan to arrive at the agreed-upon rendezvous point. Megan, however, chose not to go through with the encounter. Buculei then remained in Maryland, and he unsuccessfully attempted the next day to telephone Megan at her middle school. He thereupon returned to New York.

Undeterred by Megan's failure to show up for the first meeting, Buculei made new arrangements to see her. He returned to Maryland and attempted to meet her just four days later, January 22, 1999, which was also Megan's fourteenth birthday. Megan, however, was grounded, and she was not allowed by her parents to leave her home or use the Internet or telephone. Buculei was nonetheless determined to see her again. He sent an e-mail to one of Megan's friends to confirm his plans, and on this occasion his efforts proved successful. Megan sneaked out of her home at 2:00 a.m. on January 23, 1999, meeting Buculei at the end of her street. He gave her a rose and a hug, and she got into his automobile, believing they would "[j]ust drive around." J.A. 39.

Buculei, however, had other intentions. He drove Megan to a Red Roof Inn in Aberdeen, Maryland, about thirty to forty-five minutes from her home. Buculei registered in the motel, obtained some sodas and snacks, and took Megan to his room. The pair briefly watched television while they ate. When they finished eating, Buculei gave Megan a clear drink that he had retrieved from his vehicle. At trial, Megan testified that the drink tasted "different," and it made her feel "[d]izzy and tired." J.A. 37.

Buculei then removed a video camera from his backpack and put it on a table in the motel room, with the camera's lens

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facing the bed on which he and Megan lay. He told Megan that, notwithstanding the red light that was illuminated on the front of the video camera, the camera was not working. Buculei and Megan then began to kiss each other, and eventually Buculei removed all of Megan's clothes, as well as his own. He then touched and put his mouth on her breasts and vagina, placed his penis in her mouth, and ultimately engaged in vaginal intercourse with Megan.

Following the sexual encounter at the motel, Buculei drove Megan back to the street on which she lived, and she exited his vehicle. She "fell a few times" before making it home, however, because she was still dizzy. J.A. 63-64. Megan was back in bed at home before her father awoke at 6:00 a.m., and she did not tell her parents anything about Buculei or the events of the early morning hours.

During the following week, Buculei telephoned Megan several times, continuously expressing his desire to return to Maryland to visit her. Megan, however, advised Buculei that she did not want him to return. In any event, he came back to Maryland from New York less than two weeks later, on February 5, 1999, meeting Megan soon after she was dropped off by her school bus. Megan again got into Buculei's automobile, and he drove her back to the Red Roof Inn. This time Megan refused to go into the motel with Buculei, so he returned her to her home. Although Megan believed that Buculei would then be departing for New York, he instead appeared later that night at a roller skating rink she regularly attended. Megan became frightened, and she advised her friend's mother about her situation with Buculei. Later that evening the authorities were called and Megan was interviewed.

Early the next morning, February 6, 1999, the police arrived at Buculei's motel room. Buculei answered the door and consented to searches of his motel room and his automobile. The searches uncovered, among other items, a video camera loaded with a fully rewound videotape suitable for recording, a Polaroid camera, several condoms, lubricants, an unopened bottle of a ready-made Long Island Iced Tea alcoholic drink,3 and a bottle of Viagra. Later that day, Buculei gave a taped statement to the authorities. He claimed he had not met Megan prior to the previous day, insisting that he had rebuffed her upon learning her real age. Buculei was then detained while a search warrant was obtained for his residence in New York.

On February 9, 1999, the FBI searched Buculei's New York apartment. The search uncovered numerous images of child pornography, correspondence between Buculei and several young girls, and the videotape of his January 23, 1999 encounter with Megan at the Red Roof Inn located in Aberdeen. The videotape does not contain footage of any sexually explicit conduct, however, apparently because Buculei had failed to fully rewind the tape when he commenced recording. Instead, only the last ten minutes of the videotape contain footage of the January 23 encounter, and the video reaches its end immediately before Buculei removed Megan's bra.

Buculei was thereafter indicted in the District of Maryland for five separate violations of federal law. In Counts One, Four, and Five of the indictment, Buculei was charged with violating 18 U.S.C. S 2423(b) (traveling in interstate commerce

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with the intent to engage in a sexual act with a person under the age of eighteen). These three counts represented each of Buculei's three automobile trips between New York and Maryland in early 1999. In Count Two, Buculei was charged with a violation of 18 U.S.C. S 2251(a), i.e., that he knowingly employed, used, persuaded, induced, and enticed Megan, a minor, to engage in "sexually explicit conduct for the purposes of producing a visual depiction of such conduct," knowing that "such visual depiction would be transported in interstate commerce." See supra, note 1. In Count Three, Buculei was charged with violating 18 U.S.C. S 2251A(b)(2), i.e., that he knowingly obtained "custody or control" of a minor, that is, Megan, with the "intent to promote the engaging in of sexually explicit conduct by such minor for the purpose of producing a visual depiction of such conduct[.]" See supra, note 2.

Buculei entered a plea of not guilty to the charges, and he was tried by a jury on the indictment. At the close of the Government's case-inchief, and again at the close of all the evidence, Buculei moved for judgment of acquittal on all counts under Rule 29 of the Federal Rules of Criminal Procedure, which the district court denied. Buculei was then convicted by the jury on all five counts, and he was sentenced to the maximum possible imprisonment on Counts One, Two, Four, and Five.4 He was sentenced to the statutory minimum of 240 months' imprisonment on Count Three, with all five sentences to run concurrently.

In this appeal, Buculei assigns error to his convictions on Counts Two and Three, and he also asserts error with respect to a pair of sentencing enhancements he received on Count Two. In sum, Buculei contends that, as to Count Two, his conduct did not affect interstate commerce such that it was constitutionally permissible for him to be convicted of a federal crime, and that, as to Count Three, he did not "obtain custody or control of a minor" as contemplated by 18 U.S.C. S 2251A(b)(2).

II.

A.

We first address Buculei's contention that his conviction under Count Two, for having violated the provisions of 18 U.S.C. S 2251(a), cannot stand because that statute, as applied to his conduct in this case, is unconstitutional. We review de novo a challenge to the constitutionality of a federal statute. United States v. Mento, 231 F.3d 912, 917 (4th Cir...

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