United States v. Dwinells

United States Court of Appeals
For the First Circuit

No. 06-1709

UNITED STATES OF AMERICA,

Appellee,

v.

MATTHEW DWINELLS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Lipez, Circuit Judge,
Selya, Senior Circuit Judge,
and Delgado-Colón,** District Judge.

Christopher R. Goddu, Federal Defender Office, with whom Syrie
Fried, Federal Defender Office, was on brief, for appellant.
Donald L. Cabell, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.

November 20, 2007

*
Of the District of Puerto Rico, sitting by designation.
 SELYA, Senior Circuit Judge. We are called upon today to

determine the legitimate scope of a congressional enactment aimed

at the vexing problem of Internet predation. The statute in

question, 18 U.S.C. § 2422(b), criminalizes the use of any

instrumentality of interstate or foreign commerce, such as the

Internet, to persuade, induce, entice, or coerce a minor to engage

in criminal sexual activity. We conclude that, in enacting section

2422(b), Congress said what it meant and meant what it said.

Consequently, we reject the appellant's thesis that section 2422(b)

should be interpreted to include, as an additional element of the

offense, an intent that the underlying sexual activity actually

take place.

In view of this holding and our case-specific

determination that the government adduced sufficient evidence to

support the appellant's convictions on all the counts that were

tried, we affirm the judgment below. The tale follows.

I. BACKGROUND

Because this appeal involves a challenge to the

sufficiency of the government's proof, we rehearse the facts in the

light most favorable to the jury verdict, consistent with record

support. See United States v. Carroll, 105 F.3d 740, 742 (1st Cir.

1997).

For a period of approximately ten months beginning in the

spring of 2002, defendant-appellant Matthew Dwinells engaged in

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extensive Internet contact with three different correspondents

thought to be teenage girls. In fact, the "girls" were histrionic

law enforcement officers. That misconception proved to be the

appellant's undoing.

The first electronic will-o'-the-wisp with whom the

appellant communed was "Maria," whose on-line profile made her out

to be a fourteen-year-old living in Dayton, Ohio. But on-line

profiles can be misleading, and Maria was in actuality a persona

developed by two Dayton police detectives.

In April of 2002, Maria entered a Yahoo chatroom

dedicated to musings about love and lust.1 There, Maria "met" the

appellant, who truthfully identified himself as Matthew Dwinells,

a forty-year-old man from Lawrence, Massachusetts. The

conversation quickly accelerated through the mutual use of instant

messaging, which allows Internet users to contact each other for

private, one-on-one conversations. After only two chats, the

appellant voiced his desire to marry Maria once she turned

eighteen.

Further intimacies soon were exchanged. For example, the

pair chatted about the style and color of Maria's panties, and

Maria sent the appellant a picture of herself in a cheerleading

1
The record is cryptic as to which of three such chatrooms —
"I Love Older Men," "13+ Single Looking," or "16+ Single Looking"
— hosted this first encounter. That uncertainty has no bearing on
the outcome of this appeal.

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outfit. Thereafter, the appellant declared that he wanted to have

a baby with her.

All in all, the appellant conversed with Maria over the

Internet on more than one hundred occasions. In addition, he

initiated several telephone calls. After Maria responded

positively to an inquiry as to whether she would like to see the

appellant's penis, he sent her a picture of it by computer and then

asked her in graphic detail exactly what she wanted to do with it.2

In various on-line chats, the appellant promised Maria

that he would teach her how to swallow his ejaculate and asked her

whether it was "OK" for him to take her virginity. He also stated

that he wished Maria was with him, that he wanted her in his bed,

and that — if she would mail him her underwear — he would start a

clothes drawer for her in his house. In response to repeated

requests of this sort, the detectives posing as Maria sent the

appellant age-appropriate feminine undergarments and a series of

staged photographs.

The appellant's amorous conversations were not

characterized by much in the way of follow-through. He mentioned

gifts of a diamond ring and a toe ring but never sent either one.

Similarly, he said that he would give Maria a prepaid cellular

telephone but never made the gift. He offered to buy, but did not

2
Besides this webcam image, the appellant sent numerous other
pictures of his penis to Maria over the course of their
relationship.

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actually purchase, lingerie for her. He promised her a $25 weekly

allowance but failed to forward any cash. And on three separate

occasions — in May, July, and August of 2002 — he made and then

scuttled plans to visit her.3

The appellant apparently had a wandering eye. Beginning

in July of 2002, he also started to chat electronically with

"Paige," whose on-line profile described her as a fourteen-year-old

girl from South Carolina.4 Paige was a shared nom de plume for a

local South Carolina police detective and a federal agent (a postal

inspector investigating sex crimes) to whom he handed off the

persona.

The appellant met Paige in a chatroom labeled "I Love

Older Men," where Paige engaged in a sexually explicit conversation

with him and said that she had sexually revealing pictures of

herself. The appellant rose to the bait and expressed interest in

these depictions. Paige requested, and received, his address (in

Lawrence, Massachusetts). The appellant went on to ask for Paige's

underwear, and the pair discussed how the appellant might visit

Paige.

3
After having broken one of his vows to meet Maria, the
appellant sent her a gold chain as a sort of consolation prize.
4
Paige's persona was not entirely consistent. At different
times, she held herself out as either thirteen or fourteen years
old. Moreover she claimed variously to be sexually experienced and
to be a virgin.

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 Plans for a South Carolina rendezvous never came to

fruition. The two agreed that they would meet in August, and, on

August 13, the appellant promised to visit in two weeks. On August

17, the visit was rescheduled to August 30. But on August 28, the

appellant informed Paige that work-related obligations precluded

the assignation.

Notwithstanding this setback, the talk about a rendezvous

persisted. In September, the couple discussed the possibility of

Paige visiting the appellant in Boston. The appellant proposed

that they meet at South Station (Boston's principal ground

transportation hub) and signaled his intentions by observing that

"if I get caught im in jail." Paige replied that she would keep

their rendezvous secret and then began to mention specific flight

and bus schedules that could take her to Boston. The appellant

helped Paige make sense of the on-line schedules, checked to ensure

that Paige had identification that would allow her to fly, and

repeatedly assured her that he would send travel money. He

continued to press her to transmit more photographs. The last

conversation between the two occurred on September 14, 2002. The

travel money never arrived.

The same postal inspector later developed a new persona:

thirteen-year-old "Ashley," Paige's cousin from South Carolina. On

September 27, Ashley and the appellant met on-line. The appellant

immediately sought to obtain pictures of her. In a chat less than

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three weeks later, Ashley expressed a fear of the roving sniper who

was then terrorizing Washington, D.C. The appellant gallantly told

her to "come here" so that he could keep her safe. He offered her

travel money but worried aloud that if she came, it would be "rape"

if they slept together. Ashley assured him that she would consent

and, thus, avoid the stigma. Apparently grateful for this

concession, the appellant promised Ashley that should she become

impregnated, she would receive $250,000 as the beneficiary of his

life insurance policy.

In the end, Ashley never received any travel money from

the appellant. He did, however, buy lingerie for her in exchange

for a promise to send him the underwear she was wearing as well as

some photographs. On two occasions — one in 2002 and again in 2003

— the appellant made vague promises that he would visit Ashley.

Neither trip materialized.

On March 19, 2003, federal authorities conducted a

warrant-backed search of the appellant's home. The appellant was

present at the time of the search. A dresser drawer in the

appellant's bedroom contained greeting cards, lingerie, and

pictures sent by Maria.

After having been arrested, the appellant agreed to speak

with a law enforcement officer. Among other things, he confessed

to having movies and photographs of child pornography on his

computer.

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 In a later sworn statement, the appellant admitted that

his on-line actions were "wrong," but vouchsafed that he had acted

"just for fun" and had thought of the Internet as "fantasy land."

He said that his "intentions were strictly fantasy" and that he

never intended to meet any of the young girls, engage in sex with

them, or do anything more than chat.

In due course, a federal grand jury indicted the

appellant on three counts of attempted enticement of a minor. See

18 U.S.C. § 2422(b). The indictment charged that the appellant had

attempted to entice the three young "girls" (one per count) into

engaging in acts that would violate either a Massachusetts statute

prohibiting sexual intercourse with minors under sixteen years of

age, Mass. Gen. Laws ch. 265, § 23 (2007), or a Massachusetts

statute prohibiting unnatural and lascivious acts with such minors,

id. ch. 272, § 35A. A superseding indictment added two more

charges: one for receipt of child pornography, 18 U.S.C. §

2252(a)(2), and one for possession of child pornography, id. §

2252(a)(4)(B).

After some preliminary skirmishing (not relevant here),

the appellant pleaded guilty to the two child pornography counts

and proceeded to trial on the three enticement counts. The trial

lasted six days. The appellant testified on his own behalf,

advancing both an entrapment defense and a "fantasy" defense.

Under the latter theory, he left himself room to maneuver: he

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either knew that his correspondents were adults or believed that

their conversations constituted mutually entertained fantasies, in

which proposals for assignations and lurid descriptions of sexual

acts were merely fanciful embellishments in an elaborate game. The

jury was not buying; it rejected these defenses and found the

appellant guilty on all three counts. The district court denied

his renewed motion for judgment of acquittal and, on March 9, 2006,

sentenced him to fifty-one months in prison. This timely appeal

followed.

II. ANALYSIS

Before us, the appellant propounds two claims of error.

One relates to statutory interpretation; the other relates to

alleged evidentiary insufficiency. We discuss them separately.

A. Statutory Interpretation.

The appellant's most touted ground of appeal concerns the

interpretation of the statute of conviction. That statute reads in

relevant part:

Whoever, using the mail or any facility or
means of interstate or foreign commerce, or
within the special maritime and territorial
jurisdiction of the United States knowingly
persuades, induces, entices, or coerces any
individual who has not attained the age of 18
years, to engage in prostitution or any sexual
activity for which any person can be charged
with a criminal offense, or attempts to do so,
shall be [punished as provided].

18 U.S.C. § 2422(b) (2000).

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 Plainly, the statute requires that a defendant possess

the specific intent to persuade, induce, entice, or coerce a minor

into committing some illegal sexual activity.5 The appellant

contends that an additional "intent" element should be read into

the statute: an intent that the enticed conduct actually take

place. Ably represented, he musters a plethora of arguments in

support of that position.

The appellant first strives to convince us that a double

intent requirement, such as he envisions here, is not a curiosity.

We agree to some extent with his premise: reading a criminal

statute to provide for a double intent would not be without

analogues in the law. Many statutes criminalize an act when paired

with an intent to perform some other, distinct act. A common

example is breaking and entering with intent to commit a felony.

See, e.g., Mass. Gen. Laws ch. 266, § 17 (2007). Yet, typically,

such statutes provide explicitly for that additional element of

intent. See, e.g., id.; Cal. Penal § 459 (West 2007); N.Y. Penal

Law § 140.30 (McKinney 2007).

Seen in this light, the appellant's premise does not take

him very far. In stark contrast to the mine-run of statutes

involving heterogenous intent requirements, there is nothing on the

5
The four verbs contained in the statute — persuading,
inducing, enticing, and coercing — signify different things. In
the interests of brevity, we use the term "entice" throughout this
opinion to encompass all four.

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face of section 2422(b) providing for an added "intent" element.

Thus, the appellant's analogues have a boomerang effect. Section

2422(b) appears to be the opposite of what the appellant envisions

— a statute in which Congress deliberately refrained from including

an additional "intent" element.

The appellant next asks us to take into account the

substantial jail sentences — up to fifteen years — attendant to

violations of section 2422(b). It would be implausibly draconian,

he maintains, for a fifteen-year incarcerative sentence to attach

to an attempt to entice unaccompanied by a corresponding intent to

consummate the underlying sexual activity.

This is a shell game — an argument that hinges on matters

of policy, not on statutory construction. Absent Eighth Amendment

concerns — and none are apparent here — it is not the proper

function of the courts to act as super-legislatures, passing

judgment upon Congress's penological determinations. See, e.g.,

Neal v. United States, 516 U.S. 284, 295-96 (1996).

Another observation seems pertinent in response to this

plaint. Congress recently amended section 2422(b), see Adam Walsh

Child Protection and Safety Act of 2006, Pub. L. No. 109-248, §

203, 120 Stat. 587, 613, marking the third consecutive increase in

the maximum available sentence for violations of section 2422(b).

See Pub. L. No. 104-104, § 508, 110 Stat. 56, 137 (1996)

(establishing maximum imprisonment term of ten years); Pub. L. No.

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105-314, § 102, 112 Stat. 2974, 2975-76 (1998) (increasing maximum

term to fifteen years); Pub. L. No. 108-21, § 103(a)(2)(B) &

(b)(2)(A), 117 Stat. 650, 652, 653 (2003) (inserting five-year

mandatory minimum and increasing statutory maximum to thirty

years). To us, this suggests a crystallizing vision on Congress's

part of the need for stern punishment in this milieu.

Perhaps more importantly, by the time Congress passed the

most recent amendment to the applicable penalty provisions, every

court of appeals that had reached this issue had determined that

section 2422(b) does not include an additional "intent" element.

See United States v. Thomas, 410 F.3d 1235, 1244 (10th Cir. 2005);

United States v. Patten, 397 F.3d 1100, 1103 (8th Cir. 2005);

United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004);

United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000).

Assuming, as we are inclined to do, that Congress keeps itself

apprised of developments in the federal courts, we find the most

likely inference to be that Congress fully intended to treat acts

like those attributed to the appellant with the utmost gravity,

whether or not the accused intended that the enticed sex acts be

consummated.

The appellant further suggests that his proposed

interpretation of the statute is desirable because of either the

rule of lenity or the principle of constitutional avoidance. These

suggestions are unpersuasive.

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 The rule of lenity provides that in a criminal case, a

court must resolve statutory ambiguity in favor of the accused.

Bifulco v. United States, 447 U.S. 381, 387 (1980); United States

v. Nippon Paper Indus. Co., 109 F.3d 1, 7 (1st Cir. 1997). "But

the sine qua non for the rule's application is genuine ambiguity,

and a statute is not ambiguous simply because litigants (or even an

occasional court) question its interpretation." United States v.

Ahlers, 305 F.3d 54, 62 (1st Cir. 2002); see United States v.

Jimenez, ___ F.3d ___, ___ (1st Cir. 2007) [2007 WL 3171348, at *6]

(explaining that "genuine ambiguity requires more than a possible

alternative construction").

The appellant tries to paint a picture of uncertainty by

arguing that the courts of appeals have split over the

interpretation of section 2422(b). But the case law does not

support that gloomy assessment. Although two courts of appeals,

whilst upholding convictions under section 2422(b), have mentioned

the defendant's intent to engage in sexual acts, see United States

v. Meek, 366 F.3d 705, 718 (9th Cir. 2004); United States v.

Farner, 251 F.3d 510, 513 (5th Cir. 2001), such a finding was not

necessary to the decision in either instance. Equally as

significant, neither court sought to resolve the issue of what kind

of intent was required by the statute. Those decisions are,

therefore, of no assistance to the appellant.

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 Insofar as we can tell, the decisions that are on point

uniformly reject the "double intent" hypothesis. See United States

v. Brand, 467 F.3d 179, 202 (2d Cir. 2006); Thomas, 410 F.3d at

1244; Patten, 397 F.3d at 1103; Murrell, 368 F.3d at 1286; Bailey,

228 F.3d at 639. We consider this view confirmed — not weakened —

by the recent decision in United States v. Goetzke, 494 F.3d 1231

(9th Cir. 2007). There, the Ninth Circuit seems to have held that

section 2422(b) does not require proof of an intent that the sexual

acts take place. See id. at 1236.

That ends this aspect of the matter. Because the rule of

lenity applies only when the meaning of a criminal statute is

genuinely uncertain, Ahlers, 305 F.3d at 62, the rule simply does

not pertain here.

The canon of constitutional avoidance is equally

inapposite. That canon teaches that Congress is presumed to

legislate in accordance with the Constitution and that, therefore,

as between two plausible constructions of a statute, an inquiring

court should avoid a constitutionally suspect one in favor of a

constitutionally uncontroversial alternative. See Ashwander v.

TVA, 297 U.S. 288, 341 (1936) (Brandeis, J., concurring); United

States v. Nascimento, 491 F.3d 25, 38 (1st Cir. 2007). The

appellant asseverates that, without a requirement that the accused

intend consummation of the enticed sex acts, section 2422(b) would

threaten speech protected by the First Amendment and, accordingly,

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that we should read that additional element into the statutory

text.

This asseveration rests upon a porous foundation. For

one thing, the doctrine of constitutional avoidance does not come

into play unless alternative constructions of a statute are "fairly

possible." United States v. X-Citement Video, Inc., 513 U.S. 64,

69 (1994). Here, the absence of any ambiguity defeats the

constitutional avoidance argument. See, e.g., Jones v. United

States, 529 U.S. 848, 857 (2000) (noting that, as a precondition to

application of the canon of constitutional avoidance, the statute

in question must be fairly susceptible to differing constructions);

Nascimento, 491 F.3d at 38 ("Courts simply are not free to

interpret statutes as becoming inoperative when they approach

constitutional limits.") (internal quotation marks omitted).

For another thing, implementation of the doctrine of

constitutional avoidance also requires the presence of "substantial

constitutional questions." X-Citement Video, 513 U.S. at 69. But

there is no realistic danger that section 2422(b), as we have

interpreted it, criminalizes protected speech. Speech intended

deliberately to encourage minors' participation in criminal sexual

conduct has no redeeming social value and surely can be outlawed

under the same rationale that allows proscription of the provision

of pornography to minors. See Ginsberg v. New York, 390 U.S. 629,

637-43 (1968). And where, as in this case, speech is the

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instrumentality of the crime itself, the First Amendment provides

no shelter from the government's exercise of its otherwise valid

police powers. See United States v. Tykarsky, 446 F.3d 458, 473

(3d Cir. 2006); Meek, 366 F.3d at 721; United States v. Rowlee, 899

F.2d 1275, 1278 (2d Cir. 1990); see also United States v. Hornaday,

392 F.3d 1306, 1311 (11th Cir. 2004) ("Speech attempting to arrange

the sexual abuse of children is no more constitutionally protected

than speech attempting to arrange any other type of crime.").

As a fallback, the appellant argues that section 2422(b)

is overbroad in light of the Internet-specific principles laid down

by the Supreme Court in Reno v. ACLU, 521 U.S. 844 (1997). In our

view, the Reno principles have little traction here.

The Reno Court struck down a section of the

Communications Decency Act of 1996 (CDA) that criminalized the

knowing transmission of "indecent" material to minors via the

Internet. Id. at 859 (citing 47 U.S.C. § 223(a) (1994 ed., Supp.

II)). It also struck down another section of the CDA that outlawed

the act of knowingly making available to minors on the Internet

materials which were, when measured by contemporary community

standards, "patently offensive." Id. at 860 (citing 47 U.S.C. §

223(d) (1994 ed., Supp. II)). The Court anchored its decision on

two bases: first, it concluded that the terms "indecent" and

"patently offensive" were so vague as to chill protected speech.

Id. at 874. Second, it concluded that the two sections of the CDA,

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in combination, prohibited an intolerably large amount of protected

speech among adults. See id. at 874-79. State-of-the-art

technology, at that time, provided no effective means of excluding

minors from adult-oriented Internet fora, see id. at 876-77, and

therefore the provisions in question inevitably would muffle

substantial amounts of protected adult speech. See id. at 877-78.

The most crucial facet of the Reno scenario is missing

here: this is a situation in which nothing but unprotected speech

is either threatened or chilled. There is no possibility that

intruding minors might, by their mere presence in an Internet

forum, render protected speech illegal. After all, legitimate

inter-adult communications are not proscribed by section 2422(b).

And if a protected communication falls outside the scope of section

2422(b) for some reason — perhaps the speaker does not believe his

auditor to be a minor or the discussion does not comprise an

attempt to entice a proscribed sex act — the mere introduction of

a minor's presence will not bring the communication within that

scope. Thus, the heckler's veto emphasized by the Reno Court, id.

at 880, does not emerge here.

The lack of any First Amendment infirmity confirms our

decision to construe section 2422(b) in accordance with its

unambiguous language. Section 2422(b) criminalizes an intentional

attempt to achieve a mental state — a minor's assent — regardless

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of the accused's intentions vis-à-vis the actual consummation of

sexual activities with the minor.

To say more about the statutory interpretation point

would be supererogatory. The statute, construed without the

exogenous "intent" element envisioned by the appellant, is within

the bounds of Congress's legislative power. The district court

read and applied the statute accordingly. We therefore reject the

appellant's attempt to reinvent the statute.

B. Sufficiency of the Evidence.

Once the jury returned its verdict, the appellant renewed

his motion for judgment of acquittal. See Fed. R. Crim. P.

29(c)(1). The district court denied the motion. The appellant

demurs, arguing that the evidence did not support his convictions

on two of the three enticement counts, namely, count 2 (the Ashley

interactions) and count 3 (the Maria interactions). Presumably

because of the explicit planning of a trip by Paige to Boston for

meritricious purposes, the appellant does not challenge the

sufficiency of the evidence on count 1.

The familiar standard that applies to sufficiency-of-the-

evidence challenges requires that a court "determine whether, after

assaying all the evidence in the light most amiable to the

government, and taking all reasonable inferences in its favor, a

rational factfinder could find, beyond a reasonable doubt, that the

prosecution successfully proved the essential elements of the

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crime." United States v. O'Brien, 14 F.3d 703, 706 (1st Cir.

1994). We review a trial court's Rule 29 determination de novo,

applying this standard. See United States v. Moran, 312 F.3d 480,

487 (1st Cir. 2002).

The appellant's challenge has its roots in the

peculiarities of the statute of conviction. Section 2422(b)

criminalizes the enticement of minors into "criminal offense[s]" of

a sexual nature, but the statute is silent as to which sovereign's

law defines those offenses. The decided cases fill this gap; they

indicate that such offenses may be defined by the laws of any of

the several states.6 See, e.g., Goetzke, 494 F.3d at 1235 & n.2;

Patten, 397 F.3d at 1103-04; United States v. Panfil, 338 F.3d

1299, 1300 n.2 (11th Cir. 2003); see also United States v. Dhingra,

371 F.3d 557, 565 (9th Cir. 2004).

In this instance, the indictment accused the appellant of

having sought to entice his targets to commit sexual acts rendered

illegal by Massachusetts law. It specifically mentioned Mass. Gen.

Laws ch. 265, § 23 (criminalizing engagement in sexual intercourse

with a child under the age of 16), and Mass. Gen. Laws ch. 272, §

35A (criminalizing commission of an unnatural and lascivious act

with a child under that age). Consequently, the district court

instructed the jury that it could not find the appellant guilty on

6
It is not necessary for us to decide, and we therefore leave
open, whether such an offense may be defined by federal law.

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a particular count unless it found beyond a reasonable doubt that

he attempted to entice the "minor" in question to perform unlawful

sexual acts within Massachusetts. Given this instruction — which

has become the law of the case, see United States v. Gomes, 969

F.2d 1290, 1294 (1st Cir. 1992) — the government concedes that, in

order to sustain a conviction, the record must contain sufficient

evidence of this Massachusetts nexus.

As to the challenged counts, the evidence supporting that

nexus is not overwhelming. We briefly rehearse what the jury

supportably could have found in that regard.

As to count 3, there was evidence that, on July 1, 2002,

the appellant asked Maria to send him some of her lingerie. He

stated that he would start a clothes drawer in his house for the

underwear that Maria sent him, responded favorably to Maria's

proposal that she move in with him (inferribly in Massachusetts),

and declaimed that he "want[ed] [Maria] to have our baby." The

conversations then became salacious and sexually explicit. For

example, the appellant told Maria that he was "horny," that his

"penis [was] hard," and that he would engage in oral sex with her

if they were together.

On July 3, 2002, the appellant (who was in Massachusetts)

stated that he wanted Maria in his bed "now," mentioned that he had

a teddy bear and satin sheets for his bed, and described how he

would perform oral sex upon her. Then, on November 7, 2002, as

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Maria repeatedly gave her eager assent, the appellant successively

typed "I want you in my arms," "in my bed is that ok?," "making

love all night?," and "do you want to make a video tape of us

making love?"

As to count 2, the appellant's communications were less

effusive but in much the same tenor. For instance, on October 10,

2002, Ashley mentioned her fear of the D.C. sniper and the

appellant bade her to "come here" — that is, to come to

Massachusetts — and promised to send some travel money.7 The

appellant then typed that if "I sleep with you its rape" and noted

his disinclination "to go to jail." This outburst of anxiety was

calmed by Ashley's assurance that she would consent to sex. The

appellant then got down to basics: he queried her as to whether she

wanted sex, wanted a "baby girl," and could "handle [his] sex

drive." Ashley responded affirmatively each time. When the

appellant pleaded for Ashley to stop "teas[ing]" him, she protested

that she was not playing games and that she didn't "play with

peoples heads." Apparently reassured, the appellant boasted that

he had a $250,000 life insurance policy and told Ashley that if

"you get pregnant you will get it."

In light of this and other evidence, we believe that

reasonable jurors could conclude, as these jurors did, that the

7
The fact that the appellant did not keep this promise is
relevant, but that fact does not cancel out the invitation.

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appellant sought to entice both Maria and Ashley into undertaking

proscribed sexual acts within Massachusetts. In conversing with

Maria, he referred to the prospect of sexual activity taking place

in his own bed (and, thus, in Massachusetts) and followed up on a

suggestion that Maria might move in with him by making explicit

sexual overtures. Moreover, the appellant's descriptions of satin

sheets and a dedicated clothes drawer arguably served as lures to

entice his correspondent to come to Massachusetts. See, e.g.,

Goetzke, 494 F.3d at 1235; United States v. Munro, 394 F.3d 865,

869-70 (10th Cir. 2005). Given Maria's supposed age, it would not

be a stretch for the jurors to find both that Massachusetts was the

intended locus of the contemplated conduct and that the conduct

would have violated one or both of the aforementioned Massachusetts

statutes.

By the same token, rational jurors easily could have

found that the appellant's invitation to Ashley to come to Boston

was meant literally and that this invitation, coupled as it was

with comments of an overtly sexual nature, entailed conduct that

was to occur in Massachusetts. Given Ashley's supposed age, the

jurors could have found both that Massachusetts was the intended

locus of the contemplated conduct and that the conduct offended one

or both of those statutes. That permissible inference is bolstered

by the appellant's promise of a quarter-million-dollar life

insurance policy should he impregnate her — an inducement that

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would serve as a very powerful enticement to a thirteen-year-old

girl who lacked enough money even to travel to Boston.

This is not to say that such a verdict was compelled on

either count. The appellant's chief defense — that he was merely

role-playing and thought that the communications were mutually

entertained fantasies, comfortably remote from any prospect of

consummation — is plausible. Moreover, that defense was buttressed

by the appellant's persistent dodging of suggestions that he and

his correspondents meet. But the government's theory of the case

— that the appellant was engaged in earnest predation with persons

he thought to be minors — also was plausible. That theory was

reinforced by the appellant's own actions: his lewd comments, his

participation in discussions about potential meetings, and his

recurrent references to his home (which often were followed

immediately by entreaties for sexual intercourse or other sexual

favors).

In the end, everything depended upon which set of

inferences the jury chose to draw. When the record is fairly

susceptible of two competing scenarios, the choice between those

scenarios ordinarily is for the jury. See United States v. Cruz-

Arroyo, 461 F.3d 69, 74 (1st Cir. 2006); United States v. Fenton,

367 F.3d 14, 18 (1st Cir. 2004); see also United States v.

Guerrero-Guerrero, 776 F.2d 1071, 1075 (1st Cir. 1985) (Breyer, J.)

(explaining that jurors are "free to choose among varying

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interpretations of the evidence, as long as the interpretation they

choose is reasonable").

In the last analysis, the test is whether the evidence,

taken in its entirety, supports the judgment of conviction; if it

does, "[the government] need not rule out other hypotheses more

congenial to a finding of innocence." United States v. Gifford, 17

F.3d 462, 467 (1st Cir. 1994). This is such a case: taking all the

evidence, direct and circumstantial, in the light most hospitable

to the verdict and resolving all evidentiary conflicts in favor of

the verdict, Carroll, 105 F.3d at 742, a reasonable jury could have

found the evidence adequate to ground convictions on counts 2 and

3.

III. CONCLUSION

We need go no further. After canvassing and rejecting a

plenitude of arguments as to why we should read into section

2422(b) an exogenous element that Congress did not mention when it

drafted the statute, we conclude that the statute requires a

construction befitting its unvarnished language. With respect to

scienter, the statute requires only that a defendant intend to

entice a minor to engage in proscribed sex acts — nothing more.

Because this is so and because the government's proof was

sufficient to convict, we uphold the judgment of the district

court.

Affirmed.

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