Criminal law - First Circuit denies double-intent requirement for Internet enticement of minors - United States v. Dwinells.

AuthorRubin, Alexandra B.

Since the advent of the Internet, Congress, law enforcement officials, and the public have tried to protect children from online sexual predators. (1) In 1996, Congress amended the Telecommunications Act, criminalizing the enticement of minors for sexual activity over the Internet. (2) In United States v. Dwinells, (3) the United States Court of Appeals for the First Circuit, as a matter of first impression, considered whether section 2422(b) required a double-intent element: that is, whether the defendant had to possess not only the intent to entice a minor to engage in sexual activity, but also the intent that sexual activity occur. (4) The First Circuit, joining with all other circuits that have decided this issue, upheld the conviction by interpreting the statute to require only the intent to entice. (5)

Beginning in the spring of 2002, Matthew Dwinells, a forty-year-old man from Lawrence, Massachusetts, engaged in a series of Internet communications with three "teenage girls." (6) The "girls" were actually law enforcement officials in two states conducting separate sting operations to catch online predators. (7) Thinking she was a fourteen-year-old from Ohio, Dwinells messaged "Maria" on numerous occasions about engaging in sexual activity and about the possibility of her visiting him in Massachusetts. (8) The visit never occurred, but the pair exchanged photographs, and "Maria" sent Dwinells her supposed underwear, which he kept in a drawer in his bedroom. (9)

Additionally, Dwinells spoke with two South Carolina cousins, fourteen-year-old "Paige" and thirteen-year-old "Ashley." (10) He engaged in explicit sexual conversations with "Paige" and asked for her underwear and photographs. (11) They chatted on numerous occasions about visiting each other, and although Dwinells helped "Paige" understand plane and bus schedules to Boston and promised to send her travel money, the trip never materialized. (12) Dwinells also chatted with "Ashley" about visiting him in Boston, assuring her if she were to become pregnant with his child he would make her the beneficiary of his life insurance policy and promising to buy her lingerie in exchange for her mailing him her underwear. (13) Like "Maria" and "Paige," "Ashley's" trip to Boston never occurred. (14) Federal authorities arrested Dwinells in March 2003 after executing a search warrant for his home and finding "Maria's" pictures in his dresser drawer. (15)

In 2004, the government charged Dwinells with three counts of attempted enticement of a minor over the Internet. (16) The jury rejected Dwinells's "fantasy" and entrapment defenses and found him guilty on all three counts. (17) While denying Dwinells's motion for judgment of acquittal, the district court concluded that mere communication with the supposed minors satisfied the elements of the crime. (18) After sentencing him to fifty-one months in prison for the three violations of section 2422(b), Dwinells appealed his conviction. (19)

For more than a decade, sex offenders have used the Internet to entice children into sexual acts, and the government has responded by passing legislation such as section 2242(b) in an attempt to curb such behavior. (20) Cases flooded the court system challenging the new charges and the statute itself on a number of grounds. (21) Some defendants urged that the statute did not apply to them at all. (22) Still others claimed entrapment, impossibility, or the "fantasy defense." (23) The case law on these defenses is lacking, however, because the majority of such cases result in plea bargains. (24)

A number of decisions stemming from cases that made it to trial involved statutory interpretation of the intent element. (25) Defendants argued that the statute is vague and actually requires two separate intent elements: the first being an intent to entice a minor for sexual activity and the second, an intent that sexual activity occur. (26) Circuit courts have uniformly rejected the double-intent construction defense, although in some cases the defendants in fact intended that the sexual activity occur. (27)

Congress has amended section 2422(b)'s maximum sentence for convictions three times since 1996. (28) The most recent increase occurred in 2006 as part of the Adam Walsh Child Protection and Safety Act, which brought the mandatory minimum for a conviction to five years and the statutory maximum to life imprisonment. (29) President Bush lauded the increase and acknowledged that federal laws protecting children on the Internet were stronger as a result. (30) In addition to judicial and legislative involvement, public citizens and journalists have also tried to keep children safe online by participating in sting operations and television exposes. (31)

In United States v. Dwinells, the First Circuit rejected Dwinells's double-intent argument and affirmed his conviction through statutory comparison, strict statutory interpretation, and deference to other circuit decisions. (32) Relying on the text of the statute, the court determined that section 2422(b) requires the defendant to possess the specific intent to persuade, entice, coerce, or induce a minor to commit illegal sexual acts. (33) The First Circuit recognized that some criminal statutes do require an intent to perform one act in order to criminalize a different act. (34) The court also noted, however, that such statutes typically provide for the double-intent element explicitly, whereas section 2422(b) does not. (35) Citing the fact that section 2422(b) on its face does not contain the second intent element, the court categorized Dwinells's argument as the exact opposite of what Congress intended when it enacted the statute. (36)

The First Circuit gave much reverence to the notion that every circuit court that previously dealt with this issue refused to read a double-intent element into the statute. (37) Although some of the other cases involved situations where the defendant had also intended to engage in the sexual acts, the First Circuit held that the second intent was not the decisive factor for a section 2422(b) conviction in those situations. (38) For this reason, the court rejected Dwinells's argument that a decision to uphold the conviction would result in a circuit split. (39) The court also assumed that Congress had stayed abreast of case law interpreting section 2422(b) and that when it amended the statute to increase the prison sentence, it did so with...

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