Lead Opinion
Fоllowing a bench trial, John T. Spur-lock 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 court
I.
In January 2005, Spurlоck 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 Spur-lock. Spurlock described various sex acts that he wanted to pеrform 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 arrivеd 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.
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 involvеd. 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 conversаtions 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 оf responsibility under USSG § 3El.l(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 оf 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 prоhibit 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,
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 attemрt to entice her daughters to engage in unlawful sexual activity, in violation of § 2422(b). Spur-lock argues that contact with an adult can never, by itself, be an attempt to entice a
The elements of attempt are (1) intent to commit thе predicate offense, and (2) conduct that is a substantial step toward its commission. United States v. Blue Bird,
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 сriminal intent to entice the girls. See United States v. Jonsson,
Finally, we consider Spurlock’s claim that the district court erred at sentencing by denying him a two-level reductiоn for acceptance of responsibility. Under USSG § 3El.l(a), the burden is on a defendant to show that he “clearly demonstrate[d]” acceptance of responsibility. See United States v. Thomas,
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 faсtual guilt (e.g., to make ... a challenge to the applicability of a statute to his con
At the pretrial conference, Spurlock did not indicate that his defense at trial would be purely legal. He announced, rather, that he would rely on a defense of “generаl denial.” (R. Doc. 42, at 3). Spurlock eventually stipulated to a few basic facts, mostly relating to the foundation for some prosecution exhibits, but he did not stipulate to the content of the more than sixty exhibits the government introduced at trial, or to the factual elements of guilt. After the government presented its casein-chief, Spurlock toоk the stand and admitted to the factual allegations against him. (Tr. at 74-77).
The district court's finding that Spurlock did not clearly demonstrate acceptance of responsibility was not without foundation. At the pretrial conference, Spurlock had an opportunity to admit the factual elements of guilt and to narrow the case to purely legal issues—i.e., whether the federal statutes under which he was charged require the involvement of an actual minor, and whether 18 U.S.C. § 2242(b) requires direct communication with a minor. But through his general denial, Spurlock hedged his bet. He “put[] the government to its burden of proof at trial by denying the essential factual elements of guilt,” USSG § 3E1.1, comment, (n.2), and preserved his right to urgе an acquittal based on any shortcomings or missteps in the presentation of the government’s case. See United States v. Sumner,
The district court found that Spur-lock’s actions resulted in “considerable effort and preparation on the part оf the government and necessitated the government presenting its case at trial.” (Tr. at 84). Timeliness is a relevant factor in determining eligibility for a two-level reduction, both because untimely admissions may force the government and the court to expend resources unnecessarily, see United States v. Kiel,
Spurlock had an opportunity to proceed in a manner that could have qualified as a “rare situation” in which a defendant goes to trial and still earns an adjustment for acceptance of responsibility. But he bears the burden to demonstrate his entitlement to that benefit, and he failed to make an early demonstration of contrition, or to take the initiative to nаrrow the case to the straightforward legal issues that he now says were the only reason for a trial. We conclude that the district court did not clearly err when it denied an acceptance-of-responsibility reduction.
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For these reasons, the judgment of the district court is affirmed.
Notes
. The Honorable Gary A. Fenner, United States District Judge for the Western District of Missouri.
. Spurlock's claim that his contact with "Mary” did not constitute statutory rape or statutory sodomy under Missouri law is beside the point. Section 2422(b) prohibits an attempt knowingly to entice a minor to engage in "any sexual activity for which any person can be charged with a criminal offense.” Count One of the indictment alleges that Spurlоck's conversations with "Maiy” were an attempt to entice her daughters to engage in sexual activity with him, for which Spurlock could be charged with statutory rape and statutory sodomy under Missouri law. Therefore, Spurlock's actions fall within the scope of the federal statute.
Concurrence Opinion
concurring in part and dissenting in part.
I concur in the majority’s affirmance of Spurlock’s conviction. I dissent, however, from the majority’s conclusion about Spur-lock’s acceptance of responsibility. The district court clearly erred when finding that Spurlock did not clearly demonstrate acceptance of responsibility.
The majority omits a crucial circumstance from its opinion. Contemporaneously with Spurlock’s рre-trial proceedings, two other defendants faced virtually the same charges in the same district (but before a different judge) as Spurlock. See United States v. Helder,
The Guidelines specifically anticipate circumstancеs in which a defendant might require or prefer a trial in order to preserve certain legal issues. Commentary Note 2 to U.S. Sentencing Guidelines Maitoal § 3E1.1 (2004) sets forth:
a defendant may clearly demonstrate acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, fоr example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant hаs accepted responsibility will be based primarily on pre-trial statements and conduct.
In this case, Spurlock exercised his right to trial to preserve a challenge to the applicability of 18 U.S.C. § 2242(b) to his conduct. Thus, the court should determine his acceptance of responsibility on his pre-trial statements and conduct.
The PSI reрort indicates that Spurlock’s pretrial statements and conduct undoubtedly demonstrate his acceptance of responsibility. Following his arrest, Spurlock admitted the wrongfulness of his conduct and confessed to all relevant conduct. Spur-lock also consented to the search of his computer and to officers’ assuming his online presence for further investigation. Throughout his pre-trial proceedings, Spurlock conceded that he had engaged in
True, Spurlock put the government to some burdens at trial by his general denial. But the applicable note explains that the “adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial , is convicted, and only then admits guilt and expresses remorse.” U.S. Sentenoing Guidelines Manual § 3E1.1 cmt. n. 2 (2004) (emphasis added). Spurlock did not withhold admission of guilt until the government had met its burden of proof. He had previously admitted his conduct, stipulated to evidence, and conveyed an appreciation for the wrongfulness of his conduct. The acceptance of responsibility reduction cannot become solely a question of how much work the government was required to do; we must ultimately focus on whether the defendant himself exhibited responsibility and remorse for his conduct, which Spur-lock did.
Spurlock faced the special and rare circumstances of seeing two other defendants avoid conviction on similar facts because of a statute’s potential inapplicability. There is little question that Spurlock only went to trial to preserve that issue. Accordingly, I dissent from the majority in this respect and would have vacated Spurlock’s sentence and remanded for re-sentencing with a reduction for acceptance of responsibility-
. Spurlock unsuccessfully argued the issue in his own case.