United States v. Calvin Dye ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-3410
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UNITED STATES OF AMERICA
v.
CALVIN LEE DYE,
Appellant
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 08-cr-00384)
District Judge: Honorable Alan N. Bloch
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Submitted Under Third Circuit LAR 34.1(a)
October 22, 2010
Before: HARDIMAN, GREENAWAY, JR. and NYGAARD, Circuit Judges.
Filed: October 22, 2010
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
Calvin Lee Dye appeals from his judgment of conviction and sentence. We will
affirm.
I.
Because we write for the parties, we recount only the essential facts.
A.
From September 4, 2008 through October 2, 2008, Dye participated in twelve
instant message conversations with undercover police officer Kevin Grippo, who posed
as a 14-year-old girl named ―Jess H.‖1 Upon seeing Jess in a ―Yahoo Messenger‖
chatroom, Dye initiated the first private conversation. Within seconds, Dye learned Jess’s
age; within minutes, he received a picture of Jess and started making sexual advances:
―wish u were 18 . . . so we cou[l]d play . . . what if i wanted to kiss.‖ After it was
established that Jess might be willing to ―play‖ or ―kiss,‖ the discussion transitioned to
when, where, and how the two could meet in person. By the end of the 54-minute-long
conversation, Dye had requested ―a nude shoot,‖ asked Jess ―do u swallow‖ and ―u take it
in the ass too?,‖ informed the putative minor that she ―got [Dye] so hard right now,‖ and
then informed her that he would ―have to learn [the girl] then do [her] really good.‖
In each of the subsequent eleven chats between the two, Jess initiated online
contact with Dye. In each chat, however, Dye raised the subject of sex and meeting to
have sex. The chats grew increasingly graphic. At one point, Dye alluded to Jess
1
We refer to Grippo/―Jess H.‖ as simply ―Jess‖ because, from Dye’s perspective,
the person with whom he was planning to have sex was the 14-year-old girl, Jess. Under
§ 2422(b), an undercover officer posing online as a minor is treated as a minor. United
2
bringing a friend to participate in their sexual rendezvous, and later Dye proposed
―do[ing] the mother daughter thin[g]‖ by involving Jess’s mother. On three occasions,
Dye went so far as to masturbate for Jess via webcam. Throughout the conversations,
Dye made very clear to Jess what he intended to do with (or to) her, promising her time
and again that she would enjoy it. One specific activity that Dye proposed during their
sixth conversation was bringing his computer and camera in order to take ―naked and
sex‖ pictures and videos.
Finally, after weeks of preparation and logistical planning, on October 3, 2008,
Dye traveled from Ohio to a CoGo’s in Mt. Pleasant, Pennsylvania intending to pick up
the 14-year-old, take her to a hotel or to her parents’ house, have sex with her, and take
photographs and videos of it. When Dye arrived at the CoGo’s, two Mt. Pleasant police
officers and a young looking 21-year-old decoy were waiting for him. After circling the
CoGo’s twelve to fifteen times, Dye pulled into the parking lot and waved for the decoy
to get into his car. She did not, so Dye drove away and was promptly arrested. The items
in his car included a digital camera and a newly-purchased memory card, as well as a
webcam, a box of condoms, and several sex toys.
Dye waived his Miranda rights and admitted that he traveled from Ohio to have
States v. Tykarsky, 446 F.3d 458, 468–69 (3d Cir. 2006) cert. denied, 129 S. Ct. 1929(Apr. 9, 2009).
3
sex with Jess with plans to photograph it. He also admitted that his home computer
contained child pornography, which the police found while searching Dye’s house.
B.
Dye was tried and convicted on one count of using his computer—a ―means of
interstate or foreign commerce‖—to ―persuade[], induce[], entice[], or coerce[]‖ a girl
under the age of 18 to engage in sexual activity, 18 U.S.C. § 2422(b), and ―traveling in
interstate commerce . . . for the purpose of engaging in any illicit sexual conduct,‖ 18
U.S.C. § 2423(b). At trial, Dye admitted to traveling interstate to have sex with Jess, but
he challenged the sufficiency of the evidence supporting the charge, arguing that Jess was
a seductress who had persuaded, induced, and enticed Dye, not the other way around.
The jury rejected this theory and found Dye guilty on both counts.
The District Court calculated Dye’s Sentencing Guidelines range as 235 to 293
months, accounting for a Guideline cross-reference—which increased the offense level
from 34 to 38—because the crime involved ―causing, transporting, permitting or offering
or seeking by notice or advertisement, a minor to engage in sexually explicit conduct for
the purpose of producing a visual depiction of such conduct.‖ USSG § 2G1.3(c)(1). The
Court then analyzed the 18 U.S.C. § 3553(a) sentencing factors, determined that ―under
the circumstances of this case, the Guidelines provide too severe a sentence,‖ and
imposed a sentence of 180 months with 10 years of supervised release. The sentence was
4
60 months above the 10-year statutory minimum and 55 months below the bottom of the
Guidelines range. This appeal followed.2
II.
A.
Dye first contends that the evidence is insufficient to support the jury’s guilty
verdict on the charge of persuading, inducing, enticing, or coercing a minor to engage in
sexual activity. We apply a ―deferential standard in determining whether a jury’s verdict
rests on sufficient evidence.‖ United States v. Ozcelik, 527 F.3d 88, 93 (3d Cir. 2008).
We have stated that ―[t]he burden on a defendant who raises a challenge to the sufficiency
of the evidence is extremely high,‖ United States v. Iglesias, 535 F.3d 150, 155 (3d Cir.
2008), and ―a decision to reverse conviction on grounds of insufficiency should be
confined to cases where the prosecution’s failure is clear,‖ Gov’t of V.I. v. Brathwaite,
782 F.2d 399, 404 (3d Cir. 1986). The evidence is reviewed in the light most favorable to
the Government, and we will uphold the verdict if ―any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.‖ Ozcelik, 527 F.3d
at 93 (emphasis in original) (quoting United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir.
2
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291, which grants ―courts of appeals . . . jurisdiction of appeals
from all final decisions of the district courts of the United States.‖ Dye also had the right
to appeal his sentence under 18 U.S.C. § 3742(a)(1).
5
1996)).
Dye’s contention—that the Government failed to prove that he attempted to
persuade, induce, entice, or coerce Jess into sexual activity—was best summarized in his
own attorney’s closing argument: ―Officer Grippo’s role playing made it clear from the
outset that he was ready to go. He was hot to trot.‖ We reject this attempt to blame the
putative victim.
The evidence is overwhelming that Dye did, in fact, attempt to commit the
offense—that is, he had the requisite intent, and he took ―a substantial step toward‖ its
commission. United States v. Nestor, 574 F.3d 159, 161 (3d Cir. 2009) cert. denied, 130
S. Ct. 1537 (Feb. 22, 2010). Despite Dye’s efforts to convince us that his relationship
with what he thought was a 14-year-old girl was something other than what it was (i.e.,
they ―talked together as boyfriend and girlfriend‖), the chat logs speak for themselves,
and they speak volumes. Dye sent the first private message initiating contact with Jess.
Dye requested a picture of the 14-year-old girl. Dye was the first to allude to sexual
activity. Dye was the first to imply that the two should meet, and Dye repeatedly raised
logistical concerns and fears about getting caught. Dye brought up the idea of
masturbating on camera, and Dye was the one who actually did so. Dye was the one who
offered to bring Jess underwear and a webcam, and Dye repeatedly assured her that she
would find their day together pleasurable. Dye drove from Ohio to Mt. Pleasant to
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consummate the relationship.
The jurors heard Dye’s ―hot to trot‖ defense, and they rejected it. The jury’s
determination is amply supported by the record. Giving the words ―persuade,‖ ―induce,‖
and ―entice‖ their ―ordinary or natural meaning,‖ Bailey v. United States, 516 U.S. 137,
145 (1995), it is readily apparent that Dye’s conduct qualifies as at least one, if not all
three. Additionally, the Government’s brief provides lengthy footnotes citing to cases
from around the country where courts have found that, as a matter of law, evidence of
activity comparable to Dye’s is sufficient to uphold a guilty verdict under § 2422(b). We
find those cases quite persuasive, especially given that Dye committed numerous acts, any
one of which is sufficient evidence of enticement—e.g., exposing himself and
masturbating for the minor, promising the minor that sex would be pleasurable,
requesting nude photos of the minor, etc.3
B.
Dye also appeals his sentence, arguing that the District Court erred when it applied
3
Dye’s ―hot to trot‖ defense is especially troubling because its underlying premise
is that it is possible for a 14-year-old child to seduce a 36-year-old man, absolving the
man of criminal liability for engaging in, or attempting to talk the minor into engaging in,
illicit sexual activity. Dye cites no case law, however, to support the notion that minors—
who are, by law, unable to even consent to sexual activity, United States v. Remoi, 404
F.3d 789, 795 (3d Cir. 2005)—can ―ask for it‖ in such a way that it becomes legally
permissible for adults to entice minors into sexual escapades. That ―Jess‖ was actually an
7
a Guidelines cross-reference based on Dye’s ―causing, transporting, permitting, or
offering or seeking by notice or advertisement, a minor to engage in sexually explicit
conduct for the purpose of producing a visual depiction of such conduct,‖ which resulted
in a four-point increase in Dye’s offense level. USSG § 2G1.3(c)(1) (redirecting the
sentencing court from § 2G1.3 to § 2G2.1). Our review of the District Court’s
interpretation of the Guidelines is plenary, and we review the Court’s factual findings for
clear error. United States v. Lianidis, 599 F.3d 273, 278 (3d Cir. 2010).
Dye maintains that the District Court made the following factual errors that
resulted in its applying the § 2G1.3(c)(1) cross-reference: (1) Dye did not ―seek by notice
or advertisement, a minor to engage in sexually explicit conduct,‖ (2) Jess was the first to
suggest that Dye bring a camera, (3) Officer Grippo manipulated Dye’s Guidelines range,
which amounted to ―sentencing entrapment‖ or ―sentencing factor manipulation,‖ and (4)
Dye did not ―engage in sexually explicit conduct for the [primary] purpose of producing a
visual depiction of such conduct.‖
Dye’s first claim fails because online instant messages soliciting something from
another qualifies as ―seeking by notice.‖ Even if Dye did not seek out Jess ―by notice,‖
his use of the Internet would constitute some ―other method‖ of contacting her, and so it
undercover officer is irrelevant because we have held that an undercover officer posing as
a minor is treated as a minor. Tykarsky, 446 F.3d at 468–69.
8
would fall under the catchall phrase in Application Note 5 to § 2G1.3(c)(1). Either way,
§ 2G1.3(c)(1) is ―to be construed broadly,‖ and so it surely covers Dye’s sexually-charged
instant messages. USSG § 2G1.3, cmt. n.5.
Dye’s second and third claims are similarly unavailing. Dye was, at a minimum,
predisposed to create visual depictions of Jess naked and having sex, and the evidence
supports a finding that Dye actively sought out the opportunity to do so.4 Dye, not Jess,
first brought up the topic of nude pictures thirty-eight minutes into their first
conversation, and during their second conversation, he revisited the topic saying, ―so wish
I could see [yo]ur nude pics.‖5 Jess replied that she had none because no one would take
any, and Dye then made the first mention of creating visual depictions of Jess: ―i could
but u can not use them for anyone else lol.‖ A week later, Dye was the first to elaborate
on what they should do with the camera: ―so was thinking i would bring my computer and
4
We have never recognized the doctrines of ―sentencing entrapment‖ or
―sentencing factor manipulation,‖ and we need not do so here because we agree with the
District Court that Dye would clearly be unable to meet the elements of either doctrine.
See United States v. Sed, 601 F.3d 224, 230–31 (3d Cir. 2004); United States v. Sumler,
294 F.3d 579, 582 n.1 (3d Cir. 2002), abrogated on other grounds by Watson v. United
States, 552 U.S. 74 (2007).
5
Although the chat logs demonstrate that Jess was the first to mention a camera, it
was in the context of requesting Dye bring a ―webcam‖ that would allow the two to see
each other when they chatted in the future (i.e., ―u can bring me a webcam so u can see
me when u get back.‖). Jess made no mention of taking nude photographs or creating
pornographic videos with Dye.
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cam and take some video and pics that ok.‖ When Jess asked what kind of videos and
pictures Dye wanted to take, he replied, ―naked and sex. . . . nude pics. . . . and video of
us doing it.‖ The record therefore supports the District Court’s finding that Dye was
predisposed to create visual depictions of their sexual encounter.
Finally, Dye’s fourth claim fails for two reasons. First, there is no requirement that
for a Guideline like § 2G1.3(c)(1) to apply, the relevant conduct must be the primary
purpose of the defendant’s illegal acts. It is sufficient that creating a visual depiction of
Jess was just one of Dye’s purposes, as it was in this case. See, e.g., United States v.
Veazey, 491 F.3d 700, 706–07 (7th Cir. 2007). Second, the District Court did not clearly
err in concluding that one of Dye’s principal goals was creating visual depictions of Jess.
Dye’s repeated references to nude photographs, his existing collection of child
pornography, and his own use of a camera to film himself masturbating all support the
conclusion that photographing and filming Jess was at least a significant objective of
Dye’s meeting with Jess, even if it was not his primary goal.6
6
In the closing lines of his argument, Dye alleges that his sentence is both
procedurally and substantively unreasonable. Even if these claims were more fully
developed, we would find them unavailing because the District Court conducted a
thorough § 3553(a) analysis, provided sufficient justification for the sentence imposed,
and the sentence itself is not ―greater than necessary.‖ See United States v. Tomko, 562
F.3d 558, 568 (3d Cir. 2009); United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006)
(citation omitted), abrogation on other grounds recognized by United States v. Wells, 279
F. App’x 100, 101 (3d Cir. 2008).
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III.
For the foregoing reasons, we will affirm the District Court’s judgment of
conviction and sentence.
11