Submitted: December 12, 2016
from United States District Court for the Western District of
Arkansas - Fayetteville
RILEY, Chief Judge, WOLLMAN and SMITH, Circuit Judges.
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 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.
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
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.
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.
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.
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.
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.
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 ...