U.S. v. Dwinells

• Citation: 508 F.3d 63
• Decision Date: 20 November 2007
• Docket Number: No. 06-1709.,06-1709.
• Parties: UNITED STATES of America, Appellee, v. Matthew DWINELLS, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

508 F.3d 63

UNITED STATES of America, Appellee, v. Matthew DWINELLS, Defendant, Appellant.

No. 06-1709.

United States Court of Appeals, First Circuit.

Heard September 12, 2007.

Decided November 20, 2007.

Christopher R. Goddu, Federal Defender Office, with whom Syrie Fried, Federal Defender Office, was on brief, for appellant.

Donald L. Cabell, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before LIPEZ, Circuit Judge, SELYA, Senior Circuit Judge, and DELGADO-COLÓN,^* District Judge.

SELYA, Senior Circuit Judge.

We are called upon today to determine the legitimate scope of a congressional enactment aimed at the vexing problem of Internet predation. The statute in question, 18 U.S.C. § 2422(b), criminalizes the use of any instrumentality of interstate or foreign commerce, such as the Internet, to persuade, induce, entice, or coerce a minor to engage in criminal sexual activity. We conclude that, in enacting section 2422(b), Congress said what it meant and meant what it said. Consequently, we reject the appellant's thesis that section 2422(b) should be interpreted to include, as an additional element of the offense, an intent that the underlying sexual activity actually take place.

In view of this holding and our case-specific determination that the government adduced sufficient evidence to support the appellant's convictions on all the counts that were tried, we affirm the judgment below. The tale follows.

I. BACKGROUND

Because this appeal involves a challenge to the sufficiency of the government's proof, we rehearse the facts in the light most favorable to the jury verdict, consistent with record support. See United States v. Carroll, 105 F.3d 740, 742 (1st Cir.1997).

For a period of approximately ten months beginning in the spring of 2002, defendant-appellant Matthew Dwinells engaged in extensive Internet contact with three different correspondents thought to be teenage girls. In fact, the "girls" were histrionic law enforcement officers. That misconception proved to be the appellant's undoing.

The first electronic will-o'-the-wisp with whom the appellant communed was "Maria," whose on-line profile made her out to be a fourteen-year-old living in Dayton, Ohio. But on-line profiles can be misleading and Maria was in actuality a persona developed by two Dayton police detectives.

In April of 2002, Maria entered a Yahoo chatroom dedicated to musings about love and lust.¹ There, Maria "met" the appellant, who truthfully identified himself as Matthew Dwinells, a forty-year-old man from Lawrence, Massachusetts. The conversation quickly accelerated through the mutual use of instant messaging, which allows Internet users to contact each other for private, one-on-one conversations. After only two chats, the appellant voiced his desire to marry Maria once she turned eighteen.

Further intimacies soon were exchanged. For example, the pair chatted about the style and color of Maria's panties, and Maria sent the appellant a picture of herself in a cheerleading outfit. Thereafter, the appellant declared that he wanted to have a baby with her.

All in all, the appellant conversed with Maria over the Internet on more than one hundred occasions. In addition, he initiated several telephone calls. After Maria responded positively to an inquiry as to whether she would like to see the appellant's penis, he sent her a picture of it by computer and then asked her in graphic detail exactly what she wanted to do with it.²

In various on-line chats, the appellant promised Maria that he would teach her how to swallow his ejaculate and asked her whether it was "OK" for him to take her virginity. He also stated that he wished Maria was with him, that he wanted her in his bed, and that—if she would mail him her underwear—he would start a clothes drawer for her in his house. In response to repeated requests of this sort, the detectives posing as Maria sent the appellant age-appropriate feminine undergarments and a series of staged photographs.

The appellant's amorous conversations were not characterized by much in the way of follow-through. He mentioned gifts of a diamond ring and a toe ring but never sent either one. Similarly, he said that he would give Maria a prepaid cellular telephone but never made the gift. He offered to buy, but did not actually purchase, lingerie for her. He promised her a $25 weekly allowance but failed to forward any cash. And on three separate occasions—in May, July, and August of 2002—he made and then scuttled plans to visit her.³

The appellant apparently had a wandering eye. Beginning in July of 2002, he also started to chat electronically with "Paige," whose on-line profile described her as a fourteen-year-old girl from South Carolina.⁴ Paige was a shared nom de plume for a local South Carolina police detective and a federal agent (a postal inspector investigating sex crimes) to whom he handed off the persona.

The appellant met Paige in a chatroom labeled "I Love Older Men," where Paige engaged in a sexually explicit conversation with him and said that she had sexually revealing pictures of herself. The appellant rose to the bait and expressed interest in these depictions. Paige requested, and received, his address (in Lawrence, Massachusetts). The appellant went on to ask for Paige's underwear, and the pair discussed how the appellant might visit Paige.

Plans for a South Carolina rendezvous never came to fruition. The two agreed that they would meet in August, and, on August 13, the appellant promised to visit in two weeks. On August 17, the visit was rescheduled to August 30. But on August 28, the appellant informed Paige that work-related obligations precluded the assignation.

Notwithstanding this setback, the talk about a rendezvous persisted. In September, the couple discussed the possibility of Paige visiting the appellant in Boston. The appellant proposed that they meet at South Station (Boston's principal ground transportation hub) and signaled his intentions by observing that "if I get caught im in jail." Paige replied that she would keep their rendezvous secret and then began to mention specific flight and bus schedules that could take her to Boston. The appellant helped Paige make sense of the on-line schedules, checked to ensure that Paige had identification that would allow her to fly, and repeatedly assured her that he would send travel money. He continued to press her to transmit more photographs. The last conversation between the two occurred on September 14, 2002. The travel money never arrived.

The same postal inspector later developed a new persona: thirteen-year-old "Ashley," Paige's cousin from South Carolina. On September 27, Ashley and the appellant met on-line. The appellant immediately sought to obtain pictures of her. In a chat less than three weeks later, Ashley expressed a fear of the roving sniper who was then terrorizing Washington, D.C. The appellant gallantly told her to "come here" so that he could keep her safe. He offered her travel money but worried aloud that if she came, it would be "rape" if they slept together. Ashley assured him that she would consent and, thus, avoid the stigma. Apparently grateful for this concession, the appellant promised Ashley that should she become impregnated, she would receive $250,000 as the beneficiary of his life insurance policy.

In the end, Ashley never received any travel money from the appellant. He did, however, buy lingerie for her in exchange for a promise to send him the underwear she was wearing as well as some photographs. On two occasions—one in 2002 and again in 2003—the appellant made vague promises that he would visit Ashley. Neither trip materialized.

On March 19, 2003, federal authorities conducted a warrant-backed search of the appellant's home. The appellant was present at the time of the search. A dresser drawer in the appellant's bedroom contained greeting cards, lingerie, and pictures sent by Maria.

After having been arrested, the appellant agreed to speak with a law enforcement officer. Among other things, he confessed to having movies and photographs of child pornography on his computer.

In a later sworn statement, the appellant admitted that his on-line actions were "wrong," but vouchsafed that he had acted "just for fun" and had thought of the Internet as "fantasy land." He said that his "intentions were strictly fantasy" and that he never intended to meet any of the young girls, engage in sex with them, or do anything more than chat.

In due course, a federal grand jury indicted the appellant on three counts of attempted enticement of a minor. See 18 U.S.C. § 2422(b). The indictment charged that the appellant had attempted to entice the three young "girls" (one per count) into engaging in acts that would violate either a Massachusetts statute prohibiting sexual intercourse with minors under sixteen years of age, Mass. Gen. Laws ch. 265, § 23 (2007), or a Massachusetts statute prohibiting unnatural and lascivious acts with such minors, id. ch. 272, § 35A. A superseding indictment added two more charges: one for receipt of child pornography, 18 U.S.C. § 2252(a)(2), and one for possession of child pornography, id. § 2252(a)(4)(B).

After some preliminary skirmishing (not relevant here), the appellant pleaded guilty to the two child pornography counts and proceeded to trial on the three enticement counts. The trial lasted six days. The appellant testified on his own behalf, advancing both an entrapment defense and a "fantasy" defense. Under the latter theory, he left himself room to maneuver: he either knew that his correspondents were adults or believed that their conversations constituted mutually entertained fantasies, in which proposals for assignations and lurid descriptions of sexual acts were merely fanciful embellishments in an elaborate game. The jury was not buying; it rejected these defenses and found the...