U.S. v. Spurlock

• Decision Date: 30 July 2007
• Docket Number: No. 06-3262.,06-3262.
• Parties: UNITED STATES of America, Appellee, v. John T. SPURLOCK, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

495 F.3d 1011

UNITED STATES of America, Appellee, v. John T. SPURLOCK, Appellant.

No. 06-3262.

United States Court of Appeals, Eighth Circuit.

Submitted: January 10, 2007.

Filed: July 30, 2007.

Travis D. Poindexter, Asst. Fed. Public Defender, Kansas City, MO, argued (Raymond C. Conrad, Jr., Fed. Public Defender, on the brief), for appellant.

Philip M. Koppe, Asst. U.S. Atty., Kansas City, MO, argued (Bradley J. Schlozman, U.S. Atty., Katharine Fincham, Asst. U.S. Atty., on the brief), for appellee.

Before COLLOTON, BRIGHT, and GRUENDER, Circuit Judges.

COLLOTON, Circuit Judge.

Following a bench trial, John T. Spurlock was convicted of seven counts of violating federal child exploitation statutes in connection with his attempt to entice two minors to engage in unlawful sexual activity. The district court¹ imposed concurrent sentences of 168 and 120 months' imprisonment. Spurlock appeals, and we affirm.

I.

In January 2005, Spurlock entered an Internet chat room entitled "Daughters Who Love Daddies," and made contact with a person who identified herself as "Mary Roberts." "Mary" told Spurlock she had two young daughters, thirteen-year-old "Amber" and ten-year-old "Mandy." Unbeknownst to Spurlock, "Mary" was actually Detective Angie Wilson, an undercover agent with the FBI, and "Amber" and "Mandy" did not exist. Over the course of several Internet chats, Spurlock repeatedly expressed to "Mary" his desire to have sex with her and her daughters. During one online conversation, Detective Wilson, posing as "Mary," pretended to allow the girls to chat directly with Spurlock. Spurlock described various sex acts that he wanted to perform on the girls, and instructed them to perform sex acts on one another. Still believing he was talking to the girls, Spurlock exposed himself on his webcam and began masturbating.

In both online and telephone conversations with "Mary," Spurlock made plans to travel from his home in Texas to Kansas City, Missouri, to have sex with her daughters. On February 5, 2005, Spurlock arrived in Kansas City and telephoned "Mary" to inform her that he had purchased condoms and checked into a motel. FBI agents arrested Spurlock at the motel. Spurlock admitted that he had traveled to Kansas City for the purpose of having sex with "Amber" and "Mandy," whom he believed to be thirteen and ten years old.

A grand jury returned a seven-count indictment against Spurlock. Three counts charged him with attempting to entice a person below the age of eighteen to engage in unlawful sexual activity, in violation of 18 U.S.C. § 2422(b). Two counts charged him with attempting to transfer obscene material to someone below the age of sixteen, in violation of 18 U.S.C. § 1470. One count charged him with travel in interstate commerce for the purpose of engaging in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b). One count sought the forfeiture of property Spurlock used in commission of the crimes.

Spurlock moved to dismiss the indictment. He claimed that his conduct did not violate the statutes under which he was charged, because no actual minor was involved. The district court denied the motion. Spurlock then rejected the government's offer of a conditional guilty plea, and asserted his right to go to trial. During the bench trial, Spurlock moved twice for a judgment of acquittal, reasserting his claim that the statutes did not prohibit his conduct. Spurlock also argued for acquittal on the grounds that his conversations with "Mary" were not, by themselves, an attempt to entice her daughters to have sex. The district court denied Spurlock's motions and found him guilty on all counts.

At sentencing, in calculating Spurlock's offense level under the advisory sentencing guidelines, the court denied Spurlock's request for a two-level reduction for acceptance of responsibility under USSG § 3E1.1(a). The court sentenced Spurlock to 168 months' imprisonment on each of the enticement and interstate travel counts, and to 120 months' imprisonment on each of the attempt to transfer obscene material counts, all to be served concurrently. Spurlock appeals the denial of his motions for a judgment of acquittal. He also contends that the district court erred by denying him a downward adjustment for acceptance of responsibility, and that he is thus entitled to be resentenced based on a more favorable advisory guideline sentence.

II.

Spurlock's first argument for a judgment of acquittal is that the statutes under which he was convicted did not prohibit his conduct. He contends that because he conversed only with an undercover agent, and the statutes required that an actual minor must be involved, the government proved no violation of federal law. This argument is foreclosed by our decisions in United States v. Helder, 452 F.3d 751 (8th Cir.2006), and United States v. Hicks, 457 F.3d 838 (8th Cir.2006). In Helder, we concluded that an actual minor victim is not required for the crime of attempted enticement under § 2422(b). 452 F.3d at 756. In Hicks, we extended that reasoning to § 2423(b)'s prohibition of travel with intent to engage in illicit sexual conduct. 457 F.3d at 841. Helder and Hicks control here, and apply with equal force to the third statute under which Spurlock was convicted: attempt to knowingly transfer obscene matter to a minor under § 1470. Spurlock's belief that the person to whom he transferred obscene matter was under the age of sixteen is sufficient to convict him of attempt, even if the recipient was actually an adult. See Helder, 452 F.3d at 755.

Spurlock next challenges his conviction on Count One of the indictment. Count One alleges that independent of Spurlock's direct conversations with the girls, his conversations with "Mary" were by themselves an attempt to entice her daughters to engage in unlawful sexual activity, in violation of § 2422(b). Spurlock argues that contact with an adult can never, by itself, be an attempt to entice a minor. In Spurlock's view, the statute requires direct communication with a minor or a purported minor. We disagree.

The elements of attempt are (1) intent to commit the predicate offense, and (2) conduct that is a substantial step toward its commission. United States v. Blue Bird, 372 F.3d 989, 993 (8th Cir. 2004). We conclude that Spurlock intended to entice minor girls to have sex with him, and that his conversations with their purported mother were a substantial step toward that end. See United States v. Murrell, 368 F.3d 1283, 1287-88 (11th Cir. 2004); United States v. Hornaday, 392 F.3d 1306, 1310 (11th Cir.2004). Spurlock described to "Mary" his desire to perform sex acts on her daughters, provided her with suggestions about sex acts he would like the girls to perform on him, and asked her to tell the girls about his wishes. He relied on "Mary's" influence and control over her daughters, asking her to instruct the girls not to tell anyone what he planned to do to them. He made plans with "Mary" to meet at a motel in Kansas City where he would have sex with her and her daughters. He admitted at trial that he "tried to persuade those two girls through their mother to engage in sexual acts[.]" (Tr. at 76).

Spurlock's conversations with "Mary" bear the familiar hallmarks of criminal attempt. They went beyond mere preparation; they were necessary to the consummation of the crime; and they strongly corroborate Spurlock's criminal intent to entice the girls. See United States v. Jonsson, 15 F.3d 759, 761 (8th Cir.1994). We join the Eleventh Circuit in noting that "the efficacy of § 2422(b) would be eviscerated if a defendant could circumvent the statute simply by employing an intermediary to carry out his intended objective." Murrell, 368 F.3d at 1287. We do not believe the statute exempts sexual predators who attempt to harm a child by exploiting the child's natural impulse to trust and obey her parents. Accordingly, we conclude that Spurlock attempted to entice "Amber" and "Mandy" through his conversations with their purported mother, and we reject his challenge to the conviction on Count One.²

Finally, we consider Spurlock's claim that the district court erred at sentencing by denying him a two-level reduction for acceptance of responsibility. Under USSG § 3E1.1(a), the burden is on a defendant to show that he "clearly demonstrate[d]" acceptance of responsibility. See United States v. Thomas, 93 F.3d 479, 489 (8th Cir.1996). A district court's factual determination about whether the defendant accepted responsibility is entitled to great deference, and we will reverse it only if it is so clearly erroneous as to be without foundation. United States v. Little Hawk, 449 F.3d 837, 839 (8th Cir.2006).

In certain "rare situations," a defendant may clearly demonstrate acceptance of responsibility despite his decision to go to trial. USSG § 3E1.1, comment. (n.2). "This may occur, for example, where a defendant goes to trial to assert or preserve issues that do not relate to factual guilt (e.g., to make ... a challenge to the applicability of a statute to his conduct)." Id. In such instances, a court should look primarily to a defendant's pretrial statements and conduct to determine if he has accepted responsibility, id., and the timeliness of a defendant's acceptance of responsibility is a relevant factor under 3E1.1(a). Id., comment. (nn.1(h), 6). Of course, even a defendant who pleads guilty is not entitled to the downward adjustment as a matter of right, id., comment. (n.3), so neither is a defendant who goes to trial to preserve issues that do not relate to factual guilt. Spurlock claims he went to trial only to advance a legal argument, and that the district court was required to find that his case exhibits one of the "rare situations" in which a defendant who is convicted at trial should receive the benefit of the adjustment. We disagree.

At the pretrial conference, Spurlock did not indicate that his defense at trial would be purely legal. He...