United States v. Buttrick

United States Court of Appeals
For the First Circuit

No. 05-1451

UNITED STATES OF AMERICA,

Appellee,

v.

DUSTIN BUTTRICK,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Lynch, Circuit Judge,
Campbell and Cyr, Senior Circuit Judges.

Michael J. Iacopino, with whom Brennan Caron Lenehan &
Iacopino was on brief, for appellant.
Peter E. Papps, Assistant United States Attorney, with whom
Thomas P. Colantuono, United States Attorney, was on brief, for
appellee.

November 23, 2005
 LYNCH, Circuit Judge. Dustin Buttrick, a twenty-two-

year-old man living in Elliot, Maine, crossed over the state line

into New Hampshire, having arranged to rendezvous with a fourteen-

year-old girl he met over the Internet to have sex. The "girl"

turned out to have been a fiction; Buttrick was caught in a sting

operation set up by the Portsmouth, New Hampshire, Police

Department. There is no dispute that the "girl" told Buttrick that

she was underage, and there is no dispute that he crossed over the

state line for the anticipated tryst. Buttrick never found his

intended paramour; the Portsmouth police arrested him first. His

defense was that mere curiosity drove him; although he brought

along condoms, as he had told the "girl" that he would, he said

that he had never intended to have sex with her.

On September 9, 2004, a jury found Buttrick guilty of

traveling in interstate commerce with the purpose of engaging in

illicit sexual conduct with another person between twelve and

sixteen years of age, in violation of 18 U.S.C. § 2423(b). See

also 18 U.S.C. §§ 2423(f), 2241(c). Buttrick was sentenced to

eighteen months in prison, followed by a five-year period of

supervised release.

This appeal addresses two legal questions previously

raised in defendant's motion for a judgment of acquittal or, in the

alternative, a new trial. Buttrick argues that the statute of

conviction, 18 U.S.C. § 2423(b), is unconstitutional as applied to

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him because it punishes mere thought and burdens the right to

travel. The statute provides, in relevant part:

A person who travels in interstate commerce
. . . for the purpose of engaging in any
illicit sexual conduct with another person
shall be fined under this title or imprisoned
not more than 30 years, or both.

Buttrick's second argument is that the district court erred in

denying his request for a jury instruction, drawn from an

affirmative defense under the Model Penal Code, on abandonment or

renunciation of intent to commit the crime.

We hold that the claim of statutory unconstitutionality

is meritless and devolves into nothing more than an insufficiency

of evidence claim. On the second issue, we agree with the district

court that even if, in theory, an abandonment defense were ever

available in response to a prosecution under 18 U.S.C. § 2423(b),

a question we do not address, the proffered instruction was

properly rejected because it was an erroneous statement of the law.

We affirm.

I.

The facts recited come largely from Buttrick's testimony.

That testimony includes the evidence as to which the proposed

instruction was directed and provides the basis for evaluating the

claims that the statute was unconstitutionally applied. There is

no need to discuss the government's additional evidence of guilt.

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 Buttrick testified as follows. Before the incident in

question, he had visited chat rooms thirty or forty times. He had

explicit sexual conversations with women seven or eight times and

made arrangements to meet three or four of these women.

On June 8, 2003, Buttrick logged into a Yahoo! chat room.

He was attracted to an individual using the screen name

"baybeedaw188" and contacted her via instant messaging. He asked

the individual her age, and she identified herself as a fourteen-

year-old girl. The chat quickly became sexually graphic, with

Buttrick suggesting that they get together to "fool around." He

also said to "baybeedaw188," untruthfully, that he was only

nineteen years old, that he was from Dover, New Hampshire, and that

he had "fooled around" before with someone he met online.

Buttrick testified at trial that he had no intent to go

any further than conversation -- that it was all just fantasy. He

continued the fantasy, replying to e-mail messages from

"baybeedaw188" and engaging in other sexually explicit online

conversations with her. During a June 22 chat room conversation,

however, he went a step beyond fantasy and suggested that they meet

in person. He and "baybeedaw188" agreed to meet at 8:30 a.m. on

Tuesday, June 24, 2003, at the New Hampshire State Liquor Store on

the Route 1 traffic circle in Portsmouth, New Hampshire.

Buttrick testified that he did not believe the statements

from "baybeedaw188" that she was fourteen years old. Over the

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weekend before the meeting, Buttrick talked about these chat room

conversations with a friend, Tom Whelan, who was a part-time police

officer. Buttrick told Whelan about the meeting, saying he "would

just drive by and take a look" and that he "was curious to see who

[he] was talking to." Whelan advised him that it was a bad idea.

Still, on Monday, June 23, Buttrick and "baybeedaw188"

had another sexual chat room conversation, during which they

confirmed that they would meet as planned the next morning.

According to the testimony of the detective behind the sting

operation, Buttrick told "baybeedawl88" that he would bring

"Durex"-brand condoms with him to their meeting. Buttrick's

testimony was that he had no intent to perform any sexual act with

her or even to meet her. He said that he intended to drive to the

meeting place in New Hampshire from his home in Maine, about five

miles away, "just see who this person was. I was just curious."

On Tuesday, June 24, as he dressed before driving to the

meeting, Buttrick grabbed various items from his dresser, including

condoms. He testified that he did not bring the condoms to have

sex with "baybeedaw188"; rather, he said, "I've been going out a

lot and I try to make it a habit of carrying condoms on me." He

also testified that as he drove to the meeting, it still had not

crossed his mind that perhaps he would have sex with her after all.

Buttrick drove across the state line toward the meeting

place. At the traffic circle in Portsmouth, he drove around the

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circle once, then pulled off to look toward the liquor store to see

if someone was in the parking lot. He then drove around the circle

another time and again pulled off. He intended, he testified, to

get on the traffic circle a third time. Before he could do so,

however, he was pulled over by the Portsmouth police and arrested.

A detective testified that he recovered two condoms from Buttrick's

front pocket, one of which was a "Durex"-brand condom.

Buttrick admitted at trial that during a post-arrest

interview by the police, he was asked whether "the purpose of this

whole thing" was that he "wanted to have sex with a 14-year-old

girl," and that he answered, "Yeah." He testified, however, that

what he said to the police was not an admission of guilt, just an

acknowledgment that he knew why he had been arrested. He admitted

that when he was asked in the post-arrest interview what his

purpose was in crossing the state line, he had said that he did not

know, but that his intention was to drive home from the traffic

circle because he "knew it wasn't a good idea." He further

admitted that when asked at the interview whether he would have

stopped had he seen a fourteen-year-old-girl in the parking lot, he

had replied, "no," and said that he "would have been freaked out

and . . . would have known it . . . wasn't a good idea." He

stressed that if he had seen a girl at the lot, he would not have

had sex with her.

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 The crux of Buttrick's defense, then, was that he never

had any intent to engage in illicit sexual conduct even before he

left his home on his trip to the meeting place. Curiosity, in

other words, not sex, led him across the state line.

II.

A. Unconstitutionality of the Statute as Applied

We quickly dispose of Buttrick's as-applied

constitutional challenge, since the claim of unconstitutionality is

controlled by our prior decision in United States v. Gamache, 156

F.3d 1 (1st Cir. 1998). Gamache rejected the argument that 18

U.S.C. § 2423(b) punishes mere thought. See id. at 7-8. Other

circuits have come to the same conclusion. United States v.

Bredimus, 352 F.3d 200, 208-09 (5th Cir. 2003); United States v.

Han, 230 F.3d 560, 563 (2d Cir. 2000); see also Hoke v. United

States, 227 U.S. 308, 323 (1913) (upholding as constitutional

similar statutory language in the Mann Act).

As Gamache holds, the statute punishes those who perform

the act of crossing the state line with the intent to engage in the

specified wrongful conduct. See 156 F.3d at 8. The intent

requirement is often proved through another series of acts. See

id. Here, as in Gamache, those acts include defendant's repeated

correspondence with his intended paramour, his setting up the

details of the assignation, his bringing of the condoms, and his

actual traveling to the general vicinity of the rendezvous point,

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on the scheduled date and at the scheduled time. See id. Buttrick

"did not abstractly contemplate crossing state boundaries with a

thought to committing a crime upon reaching his destination"; he

did much more. Id.

Buttrick attempts to distinguish Gamache on the ground

that he allegedly displayed a clear intent not to engage in any

illicit conduct. This argument is nothing more than an attack on

the sufficiency of the evidence and does not state a constitutional

claim.

His argument that the statute violates due process by

interfering with the right to travel suffers from the same

infirmity. He argues not that Congress cannot regulate travel as

it does in the statute, but that since he lacked the requisite

intent, the statute as applied is unconstitutional. Again, this is

nothing more than an attack on the jury's finding that he had the

requisite intent. Cf. Bredimus, 352 F.3d at 209-10 (holding that

§ 2423(b) does not impermissibly burden the right to foreign travel

because it only criminalizes travel done with illicit intent).

B. Request for an Instruction on the Abandonment or
Renunciation Defense

We review a properly preserved objection to the failure

to give a requested jury instruction de novo. Sanchez-Lopez v.

Fuentes-Pujols, 375 F.3d 121, 133 (1st Cir. 2004) (citing Gray v.

Genlyte Group, Inc., 289 F.3d 128, 133 (1st Cir. 2002)). Such a

refusal constitutes reversible error only if it was prejudicial in

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light of the entire record. Id. at 133. If the proffered

instruction misstates the applicable law, it cannot be accepted.

See United States v. Montañez, 105 F.3d 36, 39 (1st Cir. 1997)

("[A] defendant is entitled to an instruction on his theory of

defense if sufficient evidence is produced at trial to support the

defense and the proposed instruction correctly describes the

applicable law.").

At trial, the defense theory was that Buttrick had never

formed an intent to engage in illicit sexual contact, that he was

merely a victim of his own curiosity. Nonetheless, at the close of

trial, Buttrick requested an instruction1 based on Model Penal Code

1
The requested instruction provided:

Dustin Buttrick asserts as a defense that he
renunciated or abandoned any effort to commit the
crime with which he is charged. It is a complete
defense to the charge against the defendant that he
renunciated or abandoned his effort to commit the
crime or otherwise prevented its commission. Such
abandonment or renunciation must be complete and
voluntary.
Renunciation is not voluntary if it is
motivated, in whole or in part, by circumstances,
not present or apparent at the inception of the
actor's course of conduct, that increase the
probability of detection or apprehension or that
make more difficult the accomplishment of the
criminal purpose.
Renunciation is not complete if it is
motivated by a decision to postpone the criminal
conduct until a more advantageous time or to
transfer the criminal effort to another but similar
objective or victim.
The Government has the burden to prove beyond
a reasonable doubt that the Defendant's
renunciation or abandonment of the crime was not

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§ 5.01(4), which defines renunciation as an affirmative defense to

attempt crimes. For shorthand we refer to the defense as one of

abandonment.

The rationale in the Model Penal Code for recognizing

such a defense to attempt crimes is said to be twofold: "First,

allowance of the defense recognizes that the actor's conduct no

longer poses a danger to society. Second, the availability of the

defense provides actors with a 'motive for desisting from their

criminal designs, thereby diminishing the risk that the substantive

crime will be committed.'" United States v. Shelton, 30 F.3d 702,

706 (6th Cir. 1994) (quoting Model Penal Code § 5.01(4) cmt. 8

(Official Draft 1985)).

The district court rejected defendant's request for an

abandonment instruction on a number of grounds. One of those

grounds -- that Buttrick's proposed instruction was not a correct

statement of the applicable law -- suffices to affirm.

voluntary or not complete.
If you find that the Defendant voluntarily and
completely renunciated or abandoned an effort to
commit the crime charged in the indictment then you
must find him to be not guilty. If you find that
his abandonment or renunciation was not voluntary
or complete and that the Government has proven the
elements of the offense as I have explained them to
you then you should find the Defendant to be
guilty.

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 Buttrick admits that the Model Penal Code defense by its

terms applies to "attempt" crimes.2 See, e.g., 18 U.S.C. § 751(a)

(attempt to escape from custody); 21 U.S.C. §§ 841(b)(1)(A), 846

(attempt to possess cocaine for resale). He relies on cases that

he claims recognize the defense of abandonment or renunciation of

an attempt crime. See United States v. Doyon, 194 F.3d 207, 212

(1st Cir. 1999); United States v. Dworken, 855 F.2d 12, 20 (1st

Cir. 1988); United States v. Bailey, 834 F.2d 218, 227 (1st Cir.

1987). These cases do not hold that the affirmative defense of

abandonment is, in fact, available, but merely assume so arguendo.

The government, in turn, relies on cases that explicitly reject the

abandonment defense in attempt crimes. See, e.g., Shelton, 30 F.3d

at 706. This circuit has reserved the question of the availability

of the defense in attempt crimes, see Bailey, 834 F.2d at 227 &

n.7, and, despite the battle waged in this case using the proxy of

attempt crimes, we still reserve the question.

It is unnecessary to address the argument to resolve the

case. We expressly do not reach the questions of (1) whether the

Model Penal Code defense of abandonment is ever available for an

attempt crime, and (2) whether, if the answer to the first question

2
We note that Buttrick was charged with the substantive
crime under 18 U.S.C. § 2423(b). We thus also do not reach any
questions about available defenses to aiding and abetting, see
United States v. Garrett, 720 F.2d 705, 713-14 (D.C. Cir. 1983)
(considering an abandonment defense to the charge of aiding and
abetting the violation of § 2423), or to conspiracy crimes of this
ilk. Nor do we reach any questions about an entrapment defense.

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were "yes," 18 U.S.C. § 2423(b) is sufficiently like an attempt

crime that such an affirmative defense could in theory be

applicable.

The district court, assuming arguendo that the law on the

two points above could be read in defendant's favor, nonetheless

rejected the proposed instruction on the ground that it misstated

the law by misallocating the burden of proof. The proposed

instruction placed the burden on the government "to prove beyond a

reasonable doubt that [Buttrick's] renunciation or abandonment of

the crime was not voluntary or complete."

The district court gave three reasons for its conclusion.

First, the court noted that while the Model Penal Code appeared to

place the burden of persuasion on the government on the defense of

renunciation, see Model Penal Code § 5.01(4) cmt. 8, at 358-59, 361

(Official Draft 1985), that allocation of burdens had not generally

been accepted by the states, see id. at 361 & n.282 (citing state

statutes and proposals).

Second, the court pointed out that the statute of

conviction, 18 U.S.C. § 2423, itself defined an affirmative defense

to certain conduct criminalized by the statute. In that

affirmative defense, set forth at § 2423(g), Congress placed the

burdens of both production and persuasion on the defendant:

Defense. In a prosecution under this section
based on illicit sexual conduct as defined in
subsection(f)(2), it is a defense, which the
defendant must establish by a preponderance of

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 the evidence, that the defendant reasonably
believed that the person with whom the
defendant engaged in the commercial sex act
had attained the age of 18 years.

18 U.S.C. § 2423(g). It would be, the court reasoned, inconsistent

to alter this allocation of burdens for an affirmative defense not

even recognized by the statute.

Lastly, the court reasoned that the allocation of burdens

in the proposed instruction was inconsistent with United States v.

Hartsock, 347 F.3d 1 (1st Cir. 2003). Following Hartsock's rule of

examining both the particular crime and the particular defense to

determine who has the burden of persuasion on an affirmative

defense, see id. at 8-9, the district court held that "the burden

of proof should be on the defendant with respect to this

affirmative defense instruction."

The court noted that the defendant's premise was that

even if all of the elements of the crime had been committed -- he

had crossed the state line with the purpose to engage in sex with

a minor -- he could nonetheless be found not guilty because he had

abandoned that intent by the time he was stopped by the police.3

Accepting arguendo the premise that an abandonment offense could

lie, the district court held that the defendant is more likely than

the prosecution to be in possession of the information necessary to

3
Again, we stress that we do not decide the validity of
defendant's theory that the abandonment defense is applicable to a
prosecution under 18 U.S.C. § 2423; we note only that to date no
court has accepted the theory in this context.

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establish the defense, and so the defendant should bear the burdens

of both production and persuasion. Accordingly, the court

concluded that under Hartsock, Buttrick's proposed instruction

incorrectly placed the burden of persuasion for the affirmative

defense on the government.4

The district court notified defense counsel of this

problem in the proposed instruction and gave counsel a chance to

propose a revised instruction that would place the burden of proof

back onto the defendant. Counsel declined to do so.

We agree with the district court's analysis that the

proposed instruction was simply wrong as to the allocation of

burdens of this assumed defense under 18 U.S.C. § 2423, even

indulging every preliminary assumption in defendant's favor. There

is no need to add to the district court's thoughtful analysis of

the problem.

III.

We affirm the judgment of conviction.

4
Even in Bailey, in which this court reserved the question
of the availability of the abandonment defense for attempt crimes,
the proffered abandonment instruction, held not to be warranted by
the evidence, placed the burden of persuasion on the defendant.
834 F.2d at 226 n.6.

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