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United States v. Duffin

United States Court of Appeals, Eighth Circuit

December 28, 2016

United States of America Plaintiff- Appellee
v.
David S. Duffin Defendant-Appellant

          Submitted: December 12, 2016

         Appeal from United States District Court for the Western District of Arkansas - Fayetteville

          Before RILEY, Chief Judge, WOLLMAN and SMITH, Circuit Judges.

          RILEY, Chief Judge.

         A jury found David Duffin guilty of transporting a minor in interstate commerce with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a). The district court[1] sentenced Duffin to 420 months imprisonment followed by lifetime supervised release and included a provision that Duffin have no contact with his victims. Duffin appeals (1) his conviction, arguing the government failed to present sufficient evidence of his intent to engage in criminal sexual activity in his interstate transportation of the minor, and (2) the district court's no-contact recommendation/order, claiming the district court lacked statutory authority to implement such a provision. Because a reasonable jury could conclude Duffin transported a minor in interstate commerce with the requisite intent to engage in criminal sexual activity and because we lack jurisdiction to hear an appeal of a recommendation to the Bureau of Prisons, we affirm.

         I. BACKGROUND

         Beginning October 2014, Duffin communicated with then twelve-year-old Jane Doe using a Facebook account in which Duffin falsely represented himself to be his fictitious fourteen-year-old son, Will Cresbo, living in Hawaii. Jane Doe entered into an online relationship with the fictional Cresbo, and Cresbo eventually facilitated an in-person meeting between Jane Doe and Duffin, supposedly Cresbo's father. At the time, both Jane Doe and Duffin lived in Illinois. Duffin held himself out as a former talent scout for the television show America's Got Talent and gave Jane Doe voice lessons beginning in November 2014. Jane Doe and Duffin engaged in sexual activities at these voice lessons and also had sexual intercourse at Duffin's house in Illinois approximately five times. Jane Doe said Duffin planned to leave Chicago with her and live together, posing as father and daughter until she became eighteen, while still having sexual intercourse.

         In March 2015, Jane Doe's parents discovered she had lied about her whereabouts, and her parents subsequently restricted Jane Doe from leaving the house and limited her use of her computer and monitored her cell phone. Jane Doe and Duffin made plans to leave the state of Illinois when Jane Doe's school was closed for spring break. On Saturday, April 4, 2015, Duffin picked up Jane Doe from her house and left for Arkansas. Once they arrived in Bentonville, Arkansas, Duffin and Jane Doe checked into a Motel 6 and had sexual intercourse.

         Jane Doe's parents reported her missing to the Chicago Police Department the same day Jane Doe and Duffin left the state of Illinois. Chicago Police Department investigators began to suspect Duffin after realizing the Cresbo Facebook account was fictitious and Duffin gave Jane Doe voice lessons. Investigators apprehended Duffin and Jane Doe in Arkansas and took Duffin into custody on April 9, 2015.

         On June 3, 2015, Duffin was charged in a one-count indictment with knowingly transporting Jane Doe, then a thirteen-year-old female, in interstate commerce from Illinois to Arkansas with intent to engage in sexual intercourse for which Duffin could be charged with a criminal offense under Ark. Code Ann. § 5-14-103(a)(3)(A), all in violation of 18 U.S.C. § 2423(a). Duffin's jury trial began August 17, 2015. After the close of the government's case, Duffin moved for acquittal pursuant to Federal Rule of Criminal Procedure 29 on the ground the government had not presented sufficient evidence that Duffin's dominant purpose in transporting Jane Doe across state lines was to engage in criminal sexual conduct. The district court found the government had presented sufficient circumstantial evidence of Duffin's intent and denied the motion for acquittal. The jury returned a guilty verdict on August 19, 2015.

         Following the jury trial, Duffin wrote Jane Doe a letter stating:

I took it to trial just so I could see you one last time. . . . I don't know if you understand I'm going to prison for over 20 years. You understand that right? . . . I'm going to try to get the prison in Kansas. Maybe when you're old enough you would come visit me.

         Duffin sent another letter to Jane Doe following the disclosure of the initial Presentence Investigation Report (PSR) on December 22, 2015. Also in December 2015, the FBI recovered images stored on Duffin's cell phone depicting Jane Doe engaged in sexually explicit conduct. An amended PSR was filed February 2, 2016, calculating Duffin's advisory guideline sentence range as life imprisonment.

         At the sentencing hearing held February 19, 2016, Jane Doe's mother reported Duffin's letters caused difficulty for Jane Doe and Jane Doe did not want to ...


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