EFTA00191587

UNITED STATES of America, 
Appellee, 
John T. SPURLOCK, Appellant. 
No. 06-3262. 
United States Court of Appeals, 
Eighth Circuit. 
Submitted: Jan. 10, 2007. 
Filed: July 30, 2007. 
Background: Defendant was convicted in 
the United States District Court for the 
Western District of Missouri, Gary A. Fen-
ner, J., of seven counts of violating federal 
child exploitation statutes, and was sen-
tenced to 168 months in prison. Defendant 
appealed. 
Holdings: The Court of Appeals. Colloton, 
Circuit Judge, held that: 
(1) convictions did not require proof that 
the intended victim was an actual mi-
nor, as long as defendant believes that 
the victim is a minor; 
(2) defendant's conversations with under-
cover officer were sufficient to support 
conviction for attempt to entice minor 
victims to engage in unlawful sexual 
activity; and 
(3) defendant was not entitled to sentenc-
ing reduction for acceptance of respon-
sibility. 
Affirmed. 
Bright, Circuit Judge, filed opinion concur-
ring in part, and dissenting in part 
1. Infants (3=20 
Convictions for attempting to entice a 
minor to engage in illegal sexual activity, 
attempting to transfer obscene material to 
someone under the age of 16, and attempt-
ing to travel in interstate commerce for 
the purpose of engaging in illicit sexual 
conduct do not require proof that the in-
tended victim is an actual minor, as long as 
defendant believes that the victim is a 
U.S. LSPUBLOCK 
Cite as 495 
loll (Ildi dr. 207) 
minor. 
18 U.S.C.A. 95 1470, 2422(b), 
2423(b). 
1011 
2. Infants Sxr.20 
Defendant's conversations with under-
cover officer, who defendant believed was 
the adult mother of two young girls, were 
sufficient to support conviction for attempt 
to entice minor victims to engage in unlaw-
ful sexual activity; defendant described to 
the "mother" his desire to perform sex 
acts on her "daughters", he asked her to 
tell her daughters about his wishes, and to 
instruct the girls not to tell anyone, and he 
made plans with the mother to meet at a 
motel to have sex with the daughters. 18 
U.S.C.A. § 2422(b). 
3. Criminal Law 4=44 
The elements of attempt are (1) intent 
to commit the predicate offense, and (2) 
conduct that is a substantial step toward 
its commission. 
4. Sentencing and l'unishment e=0765, 
963 
The burden is on a defendant claiming 
a two-level sentencing reduction for accep-
tance of responsibility to show that he 
clearly demonstrated acceptance of re-
sponsibility. 
U.S.S.G. 
f 8E1.1(a), 
18 
5. Criminal Law ea1158(1) 
A district court's factual determina-
tion about whether the defendant accepted 
responsibility is entitled to great defer-
ence, for sentencing purposes, and the ap-
pellate court will reverse it only if it is so 
clearly erroneous as to be without founda-
tion. U.S.S.G. § 3E1.1(a), 18 U.S.C.A. 
6. Sentencing and Punishment 4=765 
Defendant convicted of multiple viola-
tions of federal child exploitation statutes 
was not entitled to sentencing reduction 
for acceptance of responsibility; defendant 
did not plead guilty, he did not indicate 
EFTA00192187

1012 
495 FEDERAL REPORTER, 3d SERIES 
that his defense at trial would be purely 
legal, he did not demonstrate contrition, 
and although he stipulated to a few basic 
facts, mostly relating to the foundation of 
prosecution exhibits, he did not stipulate to 
the content of the exhibits, or to the factu-
al elements of guilt. 18 U.S.C.A. §§ 1470. 
2422(b), 2423(b); U.S.S.G. § 3E1.1(a), 18 
U.S.C.A. 
7. Sentencing and Punishment (3.'765 
Timeliness of defendant's cooperation 
is a relevant factor in determining eligibili-
ty for a two-level sentencing reduction for 
acceptance of responsibility, both because 
untimely admissions may force the govern-
ment and the court to expend resources 
unnecessarily, and because the timeliness 
of a defendant's acceptance of responsibili-
ty is a measure of his true contrition and 
remorse 
for 
the 
criminal 
conduct. 
U.S.S.G. § 3E1.1(a), 18 U.S.C.A. 
Travis D. Poindexter, Asst. Fed. Public 
Defender, Kansas City, MO, argued (Ray-
mond C. Conrad, Jr., Fed. Public Defend-
er, on the brief), for appellant. 
Philip M. Koppe, Asst. U.S. Atty., Kan-
sas City, MO, argued (Bradley J. Schloz-
man, U.S. Atty., Katharine Fincham, Asst. 
U.S. Atty., on the brief), for appellee. 
Before COLLOTON, BRIGHT, and 
GRUENDER, Circuit Judges. 
COLLOTON, Circuit Judge. 
Following a bench trial, John T. Spur-
lock was convicted of seven counts of vio-
lating federal child exploitation statutes in 
connection with his attempt to entice two 
minors to engage in unlawful sexual activi-
ty. The district court' imposed concur-
rent sentences of 168 and 120 months' 
I. The Honorable Gary A. Fenner, United 
States District Judge for the Western District 
imprisonment. Spurlock appeals, and we 
affirm. 
I. 
In January 2005. Spurlock entered an 
Internet chat room entitled "Daughters 
Who Love Daddies," and made contact 
with a "mho 
identified herself as 
"Mary 
"Mary" told Spurlock 
she had two young daughters, thirteen-
year-old "Amber" and ten-year-old "Man-
dy." Unbeknownst to Spurlock, "Mary" 
was actually Detective Angie Wilson, an 
undercover agent with the FBI, and "Am-
ber" and "Mandy" did not exist. Over the 
course of several Internet chats, Spurlock 
repeatedly expressed to "Mary" his desire 
to have sex with her and her daughters. 
During one online conversation, Detective 
Wilson, posing as "Mary," pretended to 
allow the girls to chat directly with Spur-
lock. Spurlock described various sex acts 
that he wanted to perform on the girls. 
and instructed them to perform sex acts on 
one another. Still believing he was talking 
to the girls, Spurlock exposed himself on 
his webcam and began masturbating. 
In both online and telephone conversa-
tions with "Mary," Spurlock made plans to 
travel from his home in Texas to Kansas 
City, Missouri, to have sex with her daugh-
ters. On February 5, 2005, Spurlock ar-
rived in Kansas City and telephoned 
"Mary" to inform her that he had pur-
chased condoms and checked into a motel. 
FBI agents arrested Spurlock at the mo-
tel. Spurlock admitted that he had trav-
eled to Kansas City for the purpose of 
having sex with "Amber" and "Mandy," 
whom he believed to be thirteen and ten 
years old. 
of Missouri. 
EFTA00192188

U
.
S
.
 
I
 
SPURLOCK 
1013 
Chg. as 495 F.3d loll Olih Cir. 2007) 
A grand jury returned a seven-count 
indictment 
against 
Spurlock. 
Three 
counts charged him with attempting to 
entice a person below the age of eighteen 
to engage in unlawful sexual activity, in 
violation of 18 U.S.C. § 2422(b). 
Two 
counts charged him with attempting to 
transfer obscene material to someone be-
low the age of sixteen, in violation of 18 
U.S.C. § 1470. 
One count charged him 
with travel in interstate commerce for the 
purpose of engaging in illicit sexual con-
duct, in violation of 18 U.S.C. § 2423(6). 
One count sought the forfeiture of proper-
ty Spurlock used in commission of the 
crimes. 
Spurlock moved to dismiss the indict-
ment. He claimed that his conduct did not 
violate the statutes under which he was 
charged, because no actual minor was in-
volved. The district court denied the mo-
tion. Spurlock then rejected the govern-
ment's offer of a conditional guilty plea, 
and asserted his right to go to trial. Dur-
ing the bench trial, Spurlock moved twice 
for a judgment of acquittal, reasserting his 
claim that the statutes did not prohibit his 
conduct. Spurlock also argued for acquit-
tal on the grounds that his conversations 
with "Mary" were not, by themselves, an 
attempt to entice her daughters to have 
sex. The district court denied Spurlock's 
motions and found him guilty on all counts. 
At sentencing, in calculating Spurlock's 
offense level under the advisory sentencing 
guidelines, the court denied Spurlock's re-
quest for a two-level reduction for accep-
tance of responsibility under 
USSG 
§ 3E1.1(a). The court sentenced Spurlock 
to 168 months' imprisonment on each of 
the enticement and interstate travel 
counts, and to 120 months' imprisonment 
on each of the attempt to transfer obscene 
material counts, all to be served concur-
rently. Spurlock appeals the denial of his 
motions for a judgment of acquittal. He 
also contends that the district court erred 
by denying him a downward adjustment 
for acceptance of responsibility, and that 
he is thus entitled to be resentenced based 
on a more favorable advisory guideline 
sentence. 
III Spurlock's first argument for a 
judgment of acquittal is that the statutes 
under which he was convicted did not pro-
hibit his conduct. He contends that be-
cause he conversed only with an undercov-
er agent, and the statutes required that an 
actual minor must be involved, the govern-
ment proved no violation of federal law. 
This argument is foreclosed by our deci-
sions in United States v. Helder, 452 F.3d 
751 (8th Cir.2006), and United States v. 
Hicks, 457 FM 838 (8th Cir2006). In 
Heftier, we concluded that an actual minor 
victim is not required for the crime of 
attempted enticement under § 242209. 
452 F.3d at 756. In Hicks, we extended 
that reasoning to § 2423(b)'s prohibition of 
travel with intent to engage in illicit sexual 
conduct. 457 F.3d at 841. Helder and 
Hicks control here, and apply with equal 
force to the third statute under which 
Spurlock was convicted: attempt to know-
ingly transfer obscene matter to a minor 
under § 1470. Spurlock's belief that the 
person to whom he transferred obscene 
matter was under the age of sixteen is 
sufficient to convict him of attempt., even if 
the recipient was actually an adult. See 
Helder, 452 F.3d at 755. 
12] Spurlock next challenges his con-
viction on Count One of the indictment. 
Count One alleges that independent of 
Spurlock's direct conversations with the 
girls, his conversations with "Mary" were 
by themselves an attempt to entice her 
daughters to engage in unlawful sexual 
activity, in violation of § 2422(b). Spur-
lock argues that contact with an adult can 
never, by itself, be an attempt to entice a 
EFTA00192189

1014 
495 FEDERAL REPORTER, 3d SERIES 
minor. 
In Spurlock's view, the statute 
requires direct communication with a mi-
nor or a purported minor. We disagree. 
[31 The elements of attempt are (1) 
intent to commit the predicate offense, and 
(2) conduct that is a substantial step to-
ward its commission. 
United States v. 
Blue Bird 372 FM 989, 993 (8th Cr. 
2004). We conclude that Spurlock intend-
ed to entice minor girls to have sex with 
him, and that his conversations with their 
purported mother were a substantial step 
toward that end. See United States v. 
Murrell, 368 F.3d 1283, 1287-88 (11th Cir. 
2004); United States v. Hornaday, 392 
F.3d 1306, 1310 (11th Cir.2004). Spurlock 
described to "Mary" his desire to perform 
sex acts on her daughters, provided her 
with suggestions about sex acts he would 
like the girls to perform on him, and asked 
her to tell the girls about his wishes. He 
relied on "Mary's" influence and control 
over her daughters, asking her to instruct 
the girls not to tell anyone what he 
planned to do to them. He made plans 
with "Mary" to meet at a motel in Kansas 
City where he would have sex with her and 
her daughters. He admitted at trial that 
he "tried to persuade those two girls 
through their mother to engage in sexual 
sett)" (Tr. at 76). 
Spurlock's conversations with "Mary" 
bear the familiar hallmarks of criminal at-
tempt. They went beyond mere prepara-
tion; they were necessary to the consum-
mation of the crime; and they strongly 
corroborate Spurlock's criminal intent to 
entice the girls. 
See United States v. 
Jonsson, 15 F.3d 759, 761 (8th Cir.1994). 
We join the Eleventh Circuit in noting that 
2. Spurlock's claim that his contact with 
"Mary" did not constitute statutory rape or 
statutory sodomy under Missouri law is be-
side the point. Section 2422(b) prohibits an 
attempt knowingly to entice a minor to en-
gage in "any sexual activity for which any 
person can be charged with a criminal of. 
tense." Count One of the indictment alleges 
"the efficacy of § 2422(b) would be eviscer-
ated if a defendant could circumvent the 
statute simply by employing an intermedi-
ary to carry out his intended objective." 
Murrell, 368 FM at 1287. 
We do not 
believe the statute exempts sexual preda-
tors who attempt to harm a child by ex-
ploiting the child's natural impulse to trust 
and obey her parents. Accordingly, we 
conclude that Spurlock attempted to entice 
"Amber" and "Mandy" through his conver-
sations with their purported mother, and 
we reject his challenge to the conviction on 
Count One.: 
14, 51 Finally, we consider Spurlock's 
claim that the district court erred at sen-
tencing by denying him a two-level reduc-
tion for acceptance of responsibility. Un-
der USSG § 3E1.1(a), the burden is on a 
defendant to show that he "clearly demon-
strateldl" acceptance of responsibility. 
See United States v. Thomas, 93 F.3d 479, 
489 (8th Cir.1996). A district court's fac-
tual determination about whether the de-
fendant accepted responsibility is entitled 
to great deference, and we will reverse it 
only if it is so clearly erroneous as to be 
without foundation. United Slates v. Lit-
tle Hawk, 449 F.3d 837, 839 (8th Cir.2006). 
16] In certain "rare situations," a de-
fendant may clearly demonstrate accep-
tance of responsibility despite his decision 
to go to trial. USSG § 3E1.1, comment. 
(n.2). 
"This may occur, for example, 
where a defendant goes to trial to assert 
or preserve issues that do not relate to 
factual guilt (e.g., to make ... a challenge 
to the applicability of a statute to his con-
that Spurlock's conversations with "Mary" 
were an attempt to entice her daughters to 
engage in sexual activity with him, for which 
Spurlock could be charged with statutory 
rape and statutory sodomy under Missouri 
law. Therefore. Spurlock's actions fall within 
the scope of the federal statute. 
EFTA00192190

US.` SPURLOCK 
1015 
Ott as 49S rsd loll lith Cir. 2007) 
duct)." it 
In such instances, a court 
should look primarily to a defendant's pre-
trial statements and conduct to determine 
if he has accepted responsibility, id, and 
the timeliness of a defendant's acceptance 
of responsibility is a relevant factor under 
3E1.1(a). Id, comment. (nn.l(h), 6). Of 
course, even a defendant who pleads guilty 
is not entitled to the downward adjustment 
as a matter of right, id, comment (n.3), so 
neither is a defendant who goes to trial to 
preserve issues that do not relate to factu-
al guilt. Spurlock claims he went to trial 
only to advance a legal argument, and that 
the district court was required to find that 
his case exhibits one of the "rare situa-
tions" in which a defendant who is convict-
ed at trial should receive the benefit of the 
adjustment. We disagree. 
At the pretrial conference, Spurlock did 
not indicate that his defense at trial would 
be purely legal. He announced, rather, 
that he would rely on a defense of "general 
denial." (R. Doc. 42, at 3). 
Spurlock 
eventually stipulated to a few basic facts, 
mostly relating to the foundation for some 
prosecution exhibits, but he did not stipu-
late to the content of the more than sixty 
exhibits the government introduced at tri-
al, or to the factual elements of guilt. 
After the government presented its case-
in-chief, Spurlock took the stand and ad-
mitted to the factual allegations against 
him. (Tr. at 74-77). 
The district court's finding that Spurlock 
did not clearly demonstrate acceptance of 
responsibility was not without foundation. 
At the pretrial conference, Spurlock had 
an opportunity to admit the factual ele-
ments of guilt and to narrow the case to 
purely legal issues—i.e., whether the fed-
eral statutes under which he was charged 
require the involvement of an actual minor, 
and whether 18 U.S.C. § 2242(b) requires 
direct communication with a minor. But 
through his general denial, Spurlock 
hedged his bet. He "putt l the govern-
ment to its burden of proof at trial by 
denying the essential factual elements of 
guilt," USSG § 3E1.1, comment (n.2), and 
preserved his right to urge an acquittal 
based on any shortcomings or missteps in 
the presentation of the government's case. 
See United States v. Sumner, 119 F.3d 
658, 660 (8th Cir.1997) ("(Al general denial 
defense ... forces the government to 
prove 
every 
element of the crime 
charged.") 
(7) The district court found that Spur-
lock's actions resulted in "considerable ef-
fort and preparation on the part of the 
government and necessitated the govern-
ment presenting its case at trial." (Tr. at 
84). 
Timeliness is a relevant factor in 
determining eligibility for a two-level re-
duction, both because untimely admissions 
may force the government and the court to 
expend resources unnecessarily, see Unit-
ed States v. Kid, 454 F.3d 819, 824 (8th 
Cir.2006); United States v. Erhart, 415 
FM 965, 972 (8th Cir2005), and because 
the timeliness of a defendant's acceptance 
of responsibility is a measure of his true 
contrition and remorse for the criminal 
conduct. United States v. Sierra, 188 FM 
798, 804 (7th Cir.1999); United States v. 
Ewing, 129 FM 430, 436 (7th Cir.1997). 
Spurlock's last-minute admissions, made 
after he waited to confirm that the govern-
ment was able to prove the charged of-
fenses in its case-in-chief, "had little effect 
on the quantum of evidence the govern-
ment was required to present," United 
States v. King, 36 FM 728, 735 (8th Cir. 
1994), and did not amount to persuasive 
showing of contrition and remorse. See 
also United States v. Abfaller, 340 FM 
646, 652 (8th Cir2003); United States v. 
Field, 110 FM 592, 594 (8th Cir.1997) 
(upholding denial of acceptance-of-respon-
sibility adjustment where defendant "went 
to trial contesting the factual elements of 
guilt" and made "no stipulations of guilty 
EFTA00192191

1016 
495 FEDERAL REPORTER, 3d SERIES 
conduct ... limiting the trial to a constitu-
tional or statutory challenge'). 
Spurlock had an opportunity to proceed 
in a manner that could have qualified as a 
"rare situation" in which a defendant goes 
to trial and still earns an adjustment for 
acceptance of responsibility. But he bears 
the burden to demonstrate his entitlement 
to that benefit, and he failed to make an 
early demonstration of contrition, or to 
take the initiative to narrow the case to 
the straightforward legal issues that he 
now says were the only reason for a trial. 
We conclude that the district court did not 
clearly err when it denied an acceptance-
of-responsibility reduction. 
For these reasons, the judgment of the 
district court is affirmed. 
BRIGHT, Circuit Judge, concurring in 
part and dissenting in part. 
I concur in the majority's affirmance of 
Spurlock's conviction. I dissent, however, 
from the majority's conclusion about Spur-
lock's acceptance of responsibility. The 
district court clearly erred when finding 
that Spurlock did not clearly demonstrate 
acceptance of responsibility. 
The majority omits a crucial circum-
stance from its opinion. Contemporane-
ously with Spurlock's pre-trial proceed-
ings, two other defendants faced virtually 
the same charges in the same district (but 
before a different judge) as Spurlock. See 
United Slates v. Helder, 452 F.3d 751 (8th 
Cir.2006); United States v. Hicks, 457 
F.3d 838 (8th Cir.2006). Based on an ar-
gument that the statute under which they 
were charged. 18 U.S.C. 4 2422(b), re-
quired the presence of an actual minor, 
rather than an adult pretending to be a 
minor, the district court granted those de-
fendants' respective motions for judgment 
3. Spurlock unsuccessfully argued the issue in 
of acquittal after a jury trial, see Helder, 
452 F.3d at 753, and dismissal of the in-
dictment, see Hicks, 457 F.3d at 840. 
Spurlock's decision to proceed to trial was 
indisputably motivated by an attempt to 
preserve for appeal the same legal argu-
ment that had worked for similar defen-
dants in the same court.' 
The Guidelines specifically anticipate 
circumstances in which a defendant might 
require or prefer a trial in order to pre-
serve certain legal issues. Commentary 
Note 2 to U.S. SENTENCING GUIDELINF.s 
MANUAL § 3E1.1 (2004) sets forth: 
a defendant may clearly demonstrate ac-
ceptance of responsibility for his crimi-
nal conduct even though he exercises his 
constitutional right to a trial. This may 
occur, for example, where a defendant 
goes to trial to assert and preserve is-
sues that do not relate to factual guilt 
(e.g., to make a constitutional challenge 
to a statute or a challenge to the applica-
bility of a statute to his conduct). In 
each such instance, however, a determi-
nation that a defendant has accepted 
responsibility will be based primarily on 
pre-trial statements and conduct. 
In this case, Spurlock exercised his right 
to trial to preserve a challenge to the 
applicability of 18 U.S.C. k 2242(b) to his 
conduct. Thus, the court should deter-
mine his acceptance of responsibility on his 
pre-trial statements and conduct. 
The PSI report indicates that Spurlock's 
pretrial statements and conduct undoubt-
edly demonstrate his acceptance of respon-
sibility. Following his arrest, Spurlock ad-
mitted the wrongfulness of his conduct and 
confessed to all relevant conduct. Spur-
lock also consented to the search of his 
computer and to officers' assuming his on-
line presence for further investigation. 
Throughout his pre-trial proceedings, 
Spurlock conceded that he had engaged in 
his own case. 
EFTA00192192

AUTO-OWNERS INS. I s TRIBAL COURT OF SPIRIT LAKE 
Oleos 
F3d 1017 (56 Or. 2007) 
the wrongful conduct, but maintained that 
the statute did not apply to his conduct. 
Spurlock, although requesting a trial, 
waived his right to a jury trial and stipu-
lated to some of the government's evi-
dence, including chain of custody of the 
computer files. At trial, he did not object 
to the admission of the government's ex-
hibits and only cross-examined one of 
three government witnesses. 
True, Spurlock put the government to 
some burdens at trial by his general deni-
al. But the applicable note explains that 
the "adjustment is not intended to apply to 
a defendant who puts the government to 
its burden of proof at trial ..., is convict 
ed, and only then admits guilt and ex-
presses remorse" U.S. SENTENCING GUIDE-
LINES MANUAL § 3E1.1 cmt. n. 2 (2004) 
(emphasis added). Spurlock did not with-
hold admission of guilt until the govern-
ment had met its burden of proof. He had 
previously admitted his conduct, stipulated 
to evidence, and conveyed an appreciation 
for the wrongfulness of his conduct. The 
acceptance of responsibility reduction can-
not become solely a question of how much 
work the government was required to do; 
we must ultimately focus on whether the 
defendant himself exhibited responsibility 
and remorse for his conduct, which Spur-
lock did. 
Spurlock faced the special and rare cir-
cumstances of seeing two other defendants 
avoid conviction on similar facts because of 
a statute's potential inapplicability. There 
is little question that Spurlock only went to 
trial to preserve that issue. Accordingly, I 
dissent from the majority in this respect 
and would have vacated Spurlock's sen-
tence and remanded for re-sentencing with 
a reduction for acceptance of responsibili-
ty. 
1017 
AUTO-OWNERS INSURANCE 
COMPANY, Plaintiff/Appellee, 
v. 
The TRIBAL COURT OF the SPIRIT 
LAKE 
INDIAN 
RESERVATION; 
Devils Lake Sioux Tribal Education 
Board, doing business as Four Winds 
Elementary School; Fort Totten Pub-
lic School District, Defendants, 
Tate Topa Tribal Education Board, also 
known as Spirit Lake Sioux Tribal 
Education Board, Defendant/Appel-
lent, 
Four Winds High School, Defendant, 
Tate Topa Tribal School, also known 
as Four Winds Elementary School, 
Defendant/Appellant, 
Vivian Lohnes, as Court-Appointed Cus-
todian and Guardian of her Minor 
Granddaughter, Mary DeLorme, 1k-
fendant. 
No. 06-3562. 
United States Court of Appeals, 
Eighth Circuit. 
Submitted: May 17, 2007. 
Filed: Aug. 1, 2007. 
Background: Insurer filed declaratory 
judgment action against insured Indian 
elementary school and education board, 
seeking determination of whether commer-
cial general liability policy and commercial 
umbrella policy covered alleged sexual as-
sault of student The United States Dis-
trict Court for the District of North Dako-
ta, Ralph R. Erickson, J., denied insured's 
motion to dismiss and granted insurer 
summary judgment. Insured appealed. 
Holdings: The Court of Appeals, Smith, 
Circuit Judge, held that: 
(1) court lacked diversity jurisdiction; 
EFTA00192193

Page 1 of 2 
Wastlaw. 
QUERY - 3142(E) & (DETAIN! DETENTION) 
& PRESUMPTION & "CRIME OF VIOLENCE" 
& (242!) & DA(2007) 
DATABASES(S) - ALLFEDS 
I. C 
U.S. I. Bass, Slip Copy, 2007 WL 2416437, D.N.J., August 20, 2007(Crim. No. 07-232 (SRC).) 
...defendant's motion for reconsideration of the Order dated April 5, 2007, which granted the mo-
tion of the United States to detain the defendant pending trial; and the Hon. Stanley R. Chesler 
having referred this motion to the Undersigned; and the Court ... 
...FN1. In support of his motion, the defendants argues that the Court should reconsider its April 
5, 2007 Order to detain him kecause its analysis was not consistent with 18 U.S.C. § 3142(1) and 
the dictates of United States I... 
...commit an offense identified in Section 3142(f) if released and that such a finding is necessary 
to order pretrial detention. Second, and relatedly, he argues that Himlcr's rationale and its re-
quirement that proof of such recidivism is necessary despite the amendments to the Bail Reform 
Act. Third, the defendant argues that the Court should reconsider its detention decision given the 
absence of any allegations that he used a firearm in a violent manner, the absence of current... 
2. C U.S.'. Music, Slip Copy, 2007 WL 2067057„ W.D.Ky., July 16, 2007(No. 1:07-CR-21-R.) 
...the Minor was not pregnant. A one (I) count indictment was issued charging that the Defendant 
violated 18 U.S.C. § 2423 ; Transportation in Interstate Commerce With Intent to Engage in 
Criminal Sexual Activity with a Minor. After the indictment, the Minor ... 
...a hearing was held before the Honorable Magistrate Judge E. Robert Goebel ("Judge Goebel"), 
for the purposes of arraignment and detention. At that hearing, the Court ultimately determined 
that the Defendant had rebutted the presumption against detention as there were conditions and 
combinations of conditions that would reasonably assure the appearance of the Defendant as well 
...a no-contact provision not only with the Minor, but also her family and any other minor fe-
males; total home detention except for supervised medical treatment or meetings with his attor-
ney; electronic monitoring; travel restrictions (including turning in his passport); third... 
3. 
14 
U.S. I. Abdullahu, 488 F.Supp.2d 433, 2007 WL 1556837„ D.N.J., May 24, 2007(No. 07-2050 
(JS)•) 
...Attorney , Camden, NJ, for United States of America. OPINION DENYING DEFENDANTS 
MOTION FOR RELEASE ON BAIL AND IN SUPPORT OF DETENTION ORDER 
SCHNEIDER , United States Magistrate Judge. This matter is before the Court on the request of 
defendant Agron Abdullahu (hereinafter "defendant") for a detention hearing pursuant to 18 
U.S.C. § 3142(f) On May 14, 2007, defendant filed his "Motion for Release on Bail." [Doc. No. 
10]. Pursuant to 18 U.S.C. § 3142(f) the Court held a detention hearing on May 17, 2007. For the 
reasons to be discussed, the Court denies defendant's Motion and finds that no ... 
...this Opinion will set forth the Court's written findings of fact and a written statement of the 
reasons for the detention. FN1. At the conclusion of the May 17, 2007 detention hearing this 
C 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
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QUERY - 3142(E) & (DETAIN! DETENTION) 
DATABASES(S) - ALLFEDS 
& PRESUMPTION & "CRIME OF VIOLENCE" 
& (242!) & DA(2007) 
Court ruled from the Bench and read into the record the sum and substance of this Opinion. This 
written Opinion formalizes the Court's ruling. A detention Order was entered on May 17, 2007. 
[Doc. No. 14]. Background On May 7, 2007, this Court signed a Complaint ... 
...5 , appeared before this Court for an initial appearance on May 8, 2007. On that date an Order 
of Temporary Detention was entered and a detention hearing was scheduled for May 11, 2007. 
[Doc. No. 7]. On May II, 2007, defendant's counsel requested and was granted an extension for 
the date of the detention hearing until May 17, 2007. Findings of Fact 2 FN2. All of the facts 
summarized herein were included in the government's proffer at the May 17, 2007 detention 
hearing which included the May 7, 2007 Complaint naming the defendant and the reports of Pre-
trial Services. The proffer also... 
4. C 
U.S. I. Capozzoli, Slip Copy, 2007 WL 129037,  N.D.Ind., January 12, 2007(No. 2:06 CR 167.) 
...Adam Tavitas , Merrillville, IN, for Defendant. Philip Craig Benson U.S. Attorney's Office , 
Hammond, IN, for Plaintiff. OPINION AND ORDER OF DETENTION ANDREW P. RO-
DOVICH , United States Magistrate Judge. At the August 22, 2006 initial appearance, the gov-
ernment requested that the defendant ... 
...August 25, 2006, committing the defendant to a United States Medical Center for Federal Pris-
oners for a mental evaluation. A detention hearing was conducted on December 21, 2006, and 
the court now makes the following findings of fact: 1. The defendant currently is charged in a 
one count indictment with a violation of 18 U.S.C. § 2422(b) If convicted, the defendant faces a 
mandatory minimum sentence of ten years imprisonment and a maximum sentence of life impris-
onment. 2. At the detention hearing, the government proffered evidence to supplement the in-
dictment and the prebond report. The defendant also proffered evidence based upon ... 
...brother, the defendant has problems following directions and could not have made the trip to 
Lafayette. Under 18 U.S.C. § 3142(e) , a defendant may be detained as a danger to the com-
munity if he is charged with a crime of violence under Section 3142(f)(1)(A) The defendant is 
charged with using the internet to solicit sex with someone he believed to be a 13 year old girl in 
violation of 18 U.S.C. § 2422(b) If this constitutes a crime of violence, there is a rebuttable pre-
sumption in favor of detention. In United States'. Munro, 394 F.3d 865 (10th Cir.2005) , the 
defendant was charged with using the internet to solicit sex with a minor in violation of Section 
2422(b) along with carrying a firearm during a crime of violence in violation of 18 U.S.C. § 
924(c) The Court of Appeals concluded that the attempted sexual abuse of a minor was a crime 
of violence and upheld the Section 924(c) conviction. 394 F.3d at 870-871 See also United States 
Abad, 350... 
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Vintlave 
QUERY - 3142(E) & (DETAIN! DETENTION) 
& PRESUMPTION & "CRIME OF VIOLENCE" 
& (225!) & DA(2007) 
DATABASES(S) - ALLFEDS 
U.S. 
Sabhnani, 493 F.3d 63, 2007 WL 
1
I. 114 
1965536, C.A.2 (N.Y.), July 06, 2007(Docket No. 
07-2 7-cr.) 
...illegal aliens. The United States District Court for the Eastern District of New York Thomas C. 
Platt , J., ordered defendants detained. Defendants appealed. 3 Holding: The Court of Appeals 
Reena Raggi , Circuit Judge, held that government had failed to show that ... 
...Bail 4911 In Criminal Prosecutions 49 49 Proceedings to Admit to Bail 49 49(3) Evidence 49 
49(4) k. Presumptions and Burden of Proof. When charge against federal defendant does not 
trigger statutory presumption that no conditions of release can adequately assure defendant's at-
tendance at trial, government has burden to demonstrate by preponderance of ... 
...and that no condition or combination of conditions can be imposed reasonably to assure his re-
quired attendance. 18 U.S.C.A. § 3142(e) [2] 110 Criminal Law I IOXXIV Review 110XXIV(0) 
Questions of Fact and Findings 110 1158 In General 110 1158(1) k. In General. In general, Court 
of Appeals reviews district court's order of detention for clear error. 18 U.S.C.A. § 3142(e) [3] 
49 Bail 4911 In Criminal Prosecutions 49 41 Right to Release on Bail 49 42 k. In General. 49... 
2. C 
U.S. I. Megahed, 519 F.Supp.2d 1236, 2007 WL 3132418, 21 Fla. L. Weekly Fed. D 29„ 
M.D.Fla., October 25, 2007(No. 8:07-cr-342-T-23MAP.) 
...2) fact that defendant was not charged with offense enumerated in Bail Reform Act did not pre-
clude his pre-trial detention. Motion granted. West Headnotes [1] 49 Bail 4911 In Criminal Pro-
secutions 49 49 Proceedings to Admit to Bail 49 49 ... 
...49 Proceedings to Admit to Bail 49 49(3) Evidence 49 49(3 1) k. In General. Bail Reform Act 
authorizes detention in any case in which court determines after due process hearing (1) by pre-
ponderance of evidence that no conditions of ... 
...General. Fact that defendant was not charged with offense enumerated in Bail Reform Act did 
not preclude his pre-trial detention based on prospect of future crimes. 18 U.S.C.A. § 3142 Jay 
L. Hoffer , U.S. Attorney's Office, Tampa, FL, for Plaintiff... 
3. • 
U.S. I. 
, Slip Copy, 2007 WL 3028307„ W.D.N.C., October 15, 2007(No. 1:07 cr 
69-2.) 
...heard before the undersigned, pursuant to a motion filed by defendant's counsel on September 
25, 2007 entitled "Motion to Reconsider Detention Order" (H 225) and from the evidence offered 
by the defendant and the evidence offered by the Government and the arguments of counsel... 
...illegal gambling business, conspiracy to commit bribery, bribery of a law enforcement officer 
and conspiracy to commit money laundering. A detention hearing was held for the defendant on 
August 3, 2007. At that time, the undersigned entered an order detaining the defendant pending 
further orders of the court. On August 7, 2007, the undersigned entered a written Order of Deten-
tion (H 59) in which the undersigned presented in writing the reasons for the court's decision to 
(0 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
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QUERY - 3142(E) & (DETAIN! DETENTION) 
DATABASES(S) - ALLFEDS 
& PRESUMPTION & "CRIME OF VIOLENCE" 
& (225!) & DA(2007) 
detain the defendant. The written detention order filed in this matter is incorporated herein by 
reference as if fully set forth herein. On September 25, 2007 defendant's counsel filed a motion 
entitled "Motion to Reconsider Detention Order" (# 225). In the motion, defendant's counsel sets 
forth that the defendant has been completely cooperative with the Government and that the ... 
...position that the defendant did not personally initiate any attempts to obstruct justice and that 
the court's basis for the detention of the defendant no longer exists. Thomas Boggs, attorney for 
the defendant, presented a proffer of evidence to the court... 
4. C 
U.S. I Comstock, 507 F.Supp.2d 522, 2007 WL 2588815, E.D.N.C., September 07, 2007(Nos. 
5:06- C-2195BR, 5:06-HC-2202BR, 5:06-HC-2205BR, 5:06-HC-2206BR, 5:06-HC-2212BR.) 
...U.S.C.A. § 4248 [3] 92 Constitutional Law 92VI Enforcement of Constitutional Provisions 
92VI(C) Determination of Constitutional Questions 92VI(C)3 Presumptions and Construction as 
to Constitutionality 92 990 k. In General. Statutes are presumed constitutional. [4] 92 Constitu-
tional Law 92XX Separation ... 
...of "Receipt [by computer] of materials depicting a minor engaging in sexually explicit con-
duct" in violation of 18 U.S.C. § 2252(aX2) , and to one count of forfeiture. He was sentenced to 
a 37-month prison term to be followed by a ... 
...release based on his guilty plea to one count of possession of child pornography in violation of 
18 U.S.C. § 2252(a) (5XB) and (bX2) Matherly's term of imprisonment expired on 23 November 
2006, and he is currently confined at... 
5. C 
U.S. I. Bass, Slip Copy, 2007 WL 2416437„ D.N.J., August 20, 2007(Crim. No. 07-232 (SRC).) 
...defendant's motion for reconsideration of the Order dated April 5, 2007, which granted the mo-
tion of the United States to detain the defendant pending trial; and the Hon. Stanley R. Chesler 
having referred this motion to the Undersigned; and the Court ... 
...FN I. In support of his motion, the defendants argues that the Court should reconsider its April 
5, 2007 Order to detain him because its analysis was not consistent with 18 U.S.C. § 3142(0 and 
the dictates of United States I... 
...commit an offense identified in Section 3142(0 if released and that such a finding is necessary 
to order pretrial detention. Second, and relatedly, he argues that Himler's rationale and its re-
quirement that proof of such recidivism is necessary despite the amendments to the Bail Reform 
Act. Third, the defendant argues that the Court should reconsider its detention decision given the 
absence of any allegations that he used a firearm in a violent manner, the absence of current... 
6. C 
U.S.A Schenberger, 498 F.Supp.2d 738, 2007 WL 2230182,  D.N.J., July 27, 2007(Mag. No. 
07-2 7(JS).) 
...No. 07-2077(JS). July 27, 2007. Background: Defendant, who was charged with receiving and 
distributing child pornography, requested a detention hearing. 5 Holding: The District Court Joel 
Schneider, United States Magistrate Judge, held that defendant was not entitled to bail... 
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QUERY - 3142(E) & (DETAIN! DETENTION) 
& PRESUMPTION & "CRIME OF VIOLENCE" 
& (225!) & DA(2007) 
DATABASES(S) - ALLFEDS 
...that he was not charged with physically abusing a minor and had agreed not to use or access a 
computer. Detention ordered. West Headnotes [I] 49 Bail 4911 In Criminal Prosecutions 49 41 
Right to Release on Bail 49 42 5 k 
...Bail 4911 In Criminal Prosecutions 49 49 Proceedings to Admit to Bail 49 49(3) Evidence 49 
49(4) k. Presumptions and Burden of Proof. If the government moves for detention on the basis 
of danger to the community, it must prove that by clear and convincing evidence, but if govern-
ment or court believes detention is appropriate because there is a risk of flight, that must be 
proved by a preponderance of the evidence. 18 U.S.C.A. § 3142(e) [3) 49 Bail 4911 In Criminal 
Prosecutions 49 49 Proceedings to Admit to Bail 49 49(3) Evidence 49 49(4) k Presumptions 
and Burden of Proof. If probable cause exists to believe that defendant committed an offense lis-
ted under statute prohibiting certain activities relating to material involving the sexual exploita-
tion of minors, rebuttable presumption exists that no condition or combination of conditions will 
reasonably assure the safety of any other person and the appearance of the person as required; 
once the rebuttable presumption is established, the burden is then placed on the defendant to 
produce countervailing evidence that forms a basis for his... 
7. 
U.S.'. Johnson, Slip Copy, 2007 WL 171254I„ E.D.Mich., June 13, 2007(No. 07-CR-30292.) 
...I3, 2007. Janet L. Parker U.S. Attorney's Office , Bay City, MI, for Plaintiff. DECISION AND 
ORDER DENYING GOVERNMENTS MOTION TO DETAIN CHARLES E. BINDER, United 
States Magistrate Judge. The Government moves for detention pursuant to 18 U.S.C. § 3142 , 
but questions whether the detention hearing should be heard in this district. The Bail Reform Act 
does not provide explicit guidance as to whether the detention hearing should be held in the dis-
trict of arrest or in the charging district. In this case, the conduct charged ... 
...relevant information is available in this district, the Court finds that it is proper to consider the 
Government's motion to detain in this district. On the issue of detention, the Government ini-
tially asserts that the presumption in favor of detention applies. The relevant statute provides 
that, [sjubject to rebuttal by the person, it shall be presumed that no condition or ... 
...maximum term of imprisonment of ten years or more is prescribed in an offense involving a 
minor victim under section 2252(a) (2) of this title. 18 U.S.C. § 3142(e) The Court finds that 
the Government is correct-the presumption does in fact apply. As a matter of law, the Indict-
ment in this case, standing alone, suffices to establish probable... 
8. H 
U.S.'. Abdullahu, 488 F.Supp.2d 433, 2007 WL 1556837, D.N.J., May 24, 2007(No. 07-2050 
(IS).) 
...Attorney , Camden, NJ, for United States of America. OPINION DENYING DEFENDANTS 
MOTION FOR RELEASE ON BAIL AND IN SUPPORT OF DETENTION ORDER 
SCHNEIDER , United States Magistrate Judge. This matter is before the Court on the request of 
defendant Agron Abdullahu (hereinafter "defendant") for a detention hearing pursuant to 18 
U.S.C. § 3142(f) On May 14, 2007, defendant filed his "Motion for Release on Bail." [Doc. No. 
10]. Pursuant to 18 U.S.C. § 3142(f) the Court held a detention hearing on May 17, 2007. For the 
reasons to be discussed, the Court denies defendant's Motion and fords that no ... 
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QUERY - 3142(E) & (DETAIN! DETENTION) 
& PRESUMPTION & "CRIME OF VIOLENCE" 
& (225!) & DA(2007) 
DATA BASES(S) - A LLFEDS 
...this Opinion will set forth the Court's written findings of fact and a written statement of the 
reasons for the detention. FNI. At the conclusion of the May 17, 2007 detention hearing this 
Court ruled from the Bench and read into the record the sum and substance of this Opinion. This 
written Opinion formalizes the Court's ruling. A detention Order was entered on May 17, 2007. 
[Doc. No. 14). Background On May 7, 2007, this Court signed a Complaint ... 
...5 , appeared before this Court for an initial appearance on May 8, 2007. On that date an Order 
of Temporary Detention was entered and a detention hearing was scheduled for May 11, 2007. 
[Doc. No. 7). On May II, 2007, defendant's counsel requested and was granted an extension for 
the date of the detention hearing until May 17, 2007. Findings of Fact 2 FN2. All of the facts 
summarized herein were included in the government's proffer at the May 17, 2007 detention 
hearing which included the May 7, 2007 Complaint naming the defendant and the reports of Pre-
trial Services. The proffer also... 
8:32008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
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1Mastlaw. 
999 F.2d 541 
999 F.2d 541, 1993 WL 280323 (C.A.6 (Tenn.)) 
(Cite as: 999 F.2d 541, 999 F.2d 541 (Table)) 
C 
U.S. I Scott 
C.A.6 (Tenn.),1993. 
NOTICE: THIS IS AN UNPUBLISHED OPIN-
ION.(The Court's decision is referenced in a "Table 
of Decisions Without Reported Opinions" appear-
ing in the Federal Reporter. Use Fl CTA6 Rule 28 
and Fl CTA6 1OP 206 for rules regarding the cita-
tion of unpublished opinions.) 
United States Court of Appeals, Sixth Circuit. 
UNITED STATES of America, Plaintiff-Appellee, 
v. 
Robert D. SCOTT, Defendant-Appellant. 
No. 924435. 
July 26, 1993. 
On Appeal from the United States District Court for 
the 
Western 
District 
of 
Tennessee, 
No. 
91-20037,Gibbons, J. 
W.D.Tenn. 
AFFIRMED. 
Before GUY and BATCHELDER, Circuit Judges, 
and MILES, Senior District Judgefw 
PER CURIAM. 
*1 Defendant, Robert Scott, appeals his convic-
tion for interstate transportation of a female minor 
and other females for purposes of prostitution, in-
terstate transportation of a minor with intent that 
she engage in sexual intercourse with him, and con-
spiracy. Scott contends that the Speedy Trial Act 
was violated both because of the time between his 
arrest and indictment and the time between indict-
ment and trial. Scott also challenges the admission 
at trial of a book of sexually explicit photographs, 
which he alleges was irrelevant and unduly prejudi-
cial. Finally, Scott argues that insufficient evidence 
existed to convict him of any of the counts against 
him. We affirm. 
Page I 
Robert Scott was a 26-year-old native of 
Toledo, Ohio, who, according to one of his ac-
quaintances, worked as a pimp. In November of 
1990, Scott encountered Betty Frey, also a resident 
of Toledo, who told him that she was planning to 
run away. Frey was born on July 14, 1973, and was 
considered a minor on the day that she met Scott. 
Frey asked Scott to take her to a small town in 
Michigan, where she was going to "play it off with 
her mom." Presumably, Frey planned to call her 
mother long distance and tell her that she had run 
away simply to worry her. Scott complied with 
Frey's request and took her to Michigan. Once 
there, the couple went to a motel and had sexual in-
tercourse. 
At some point, Scott suggested that Frey ac-
company him to Columbus, Ohio. She agreed, and 
ultimately the pair traveled to Columbus on 
November 16 with Jeanine Sheppard, Theresa 
Riebesehl, and codefendant Derek Maes. The group 
checked into a Columbus motel, where Scott and 
Frey again had sexual intercourse. Scott then told 
Frey that he did not have enough money for them to 
return to Toledo and he therefore needed a favor 
from her. Scott wanted her to make some money by 
prostituting herself, and he gave Frey condoms and 
sent her out with Sheppard and Riebesehl. The 
three all engaged in sexual intercourse for money, 
and upon her return to the motel Frey gave Scott all 
of the money she made. This was the first time Frey 
had ever engaged in prostitution. 
The group returned to Toledo the next day, 
where they stayed in an apartment with Maes and 
Betty Sims, Scott's live-in girlfriend. Throughout 
November and December of 1990, Scott sent Frey 
out on the streets of Toledo to engage in prostitu-
tion. Often, Frey was accompanied by Ruth DeBolt, 
Claudia Tinsley, and codefendant Kimberly Bull. 
Late in December of 1990, Scott, Frey, Bull, 
DeBolt, and Tinsley left Toledo in Scott's auto-
mobile destined for Memphis, Tennessee. Maes, 
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, 
999 F.2d 541 
999 F.2d 541, 1993 WL 280323 (C.A.6 (Tenn.)) 
(Cite as: 999 F.2d 541, 999 F.2d 541 (Table)) 
Sheppard, Riebesehl, Lisa Gonzales, and codefend-
ant David Powers followed Scott in Maes' vehicle. 
According to the government, the purpose of this 
trip was for the females to make money by prosti-
tuting themselves. On the trip down, the cars would 
stop at rest areas and truck stops and the females 
would attempt to prostitute themselves to truck 
drivers and others. Near Elizabethtown, Kentucky, 
the caravan stopped for the night when Scott's car 
broke down. Scott, Maes, and Powers left the seven 
women at an Elizabethtown motel while they re-
turned to Toledo to retrieve another vehicle. Prior 
to leaving for Toledo, however, Scott and Frey 
once again had sexual intercourse. While in Eliza-
bethtown, DeBolt, Frey, and Tinsley went to a local 
tavern where DeBolt made $40 on a "date" with 
one of the men she met. 
•2 When the three men returned the next day, 
the two carloads departed Elizabethtown for Mem-
phis, Tennessee. They registered at a Days Inn 
Motel in Memphis at 4:15 a.m. on January 2, 1991. 
A motel security guard assisted four of the women 
with their luggage. On an elevator going up to their 
rooms, the guard commented that if the elevator 
stuck at least he would have company. One of the 
women retorted, "Well, you couldn't afford it." 
Later, codefendant Bull asked the guard whether he 
would like a "date," and also inquired where the 
"hookers hang out" in Memphis. 
While in the motel in Memphis, codefendant 
Powers asked Frey to become his prostitute. As 
they were talking, Bull entered the room and she 
and Frey began to fight. Frey sustained scratches 
behind her ear and a bite mark on her arm from the 
scuffle. Scott also attacked Frey while the group 
was in Memphis, but this was not the first time that 
he had assaulted Frey. Scott's assault of Frey in 
Memphis was precipitated by Frey's request for bus 
money so she could return home to Toledo. After 
Scott denied her request, Frey called her mother 
and told her she had been beaten and needed money 
for a bus ticket home. Frey's mother then called 
Memphis police, who descended upon the Days 
Page 2 of 6 
Page 2 
Inn. 
One of the items obtained by police was a 
photo album that contained several pictures of the 
parties involved in this case. The album, which was 
transferred to the trunk of Maes' car in Elizabeth-
town, Kentucky, after Scott's car broke down, in-
cluded nude photos of several of the individuals 
and photos of some of the individuals engaged in 
oral sex. Frey testified that many of the photos were 
taken at the Columbus, Ohio, motel where the 
group stayed in November, but several other photos 
were taken while the group traveled from Toledo to 
Memphis. 
Frey also testified that Scott had given her and 
the other women instructions about how to observe 
police vice officers. According to Frey, Scott had 
told them to look under the seat of customers' cars 
for a radio or a gun to "make sure they ain't vice." 
If the women found such items, they were to open 
the door of the car and flee. 
On February 12, 1991, a grand jury returned a 
10-count indictment against Scott and others in 
which Scott was named in eight of the counts. The 
charges against Scott included: (1) unlawful, know-
ing, and intentional transport of a minor in inter-
state commerce for purposes of prostitution in viol-
ation of 18 U.S.C. §§ 2422 and 2423; (2) knowing 
transport of a minor in interstate commerce with in-
tent that she engage in sexual intercourse with Scott 
in violation of Tennessee Code Annotated § 
39-13-506 and 18 U.S.C. § 2423; (3) knowing per-
suasion of a minor to travel in interstate commerce 
for purposes of prostitution in violation of 18 
U.S.C. § 2422 ; (4) knowing interstate transport of 
individuals for purposes of prostitution in violation 
18 U.S.C. §§ 2421 and 2422 ; and (5) conspiracy to 
transport individuals in interstate commerce for 
purposes of prostitution. Scott was found guilty on 
all eight counts and sentenced to 105 months in jail. 
11. 
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Page 3 of 6 
, 
999 F.2d 541 
999 F.2d 541, 1993 WL 280323 (C.A.6 (Tenn.)) 
(Cite as: 999 F.2d 541, 999 F.2d 541 (Table)) 
*3 initially, Scott contends that he was neither 
indicted nor brought to trial within the time limit 
required by the Speedy Trial Act. The trial court 
found that any periods of delay in Scott's case were 
excludable under the Act. We agree. 
According to 18 U.S.C. § 3161(b), an indict-
ment against a defendant must be filed within 30 
days from the date of the defendant's arrest. In this 
case, Scott was arrested on January 7, 1991. On 
January 29, the government moved for an extension 
of time to indict Scott because two witnesses that 
the government had subpoenaed failed to appear at 
a grand jury proceeding on that date. Pursuant to § 
3161(hX3XA),"" the district court granted the 
government an additional 30 days, commencing 
February 4, in which to obtain an indictment 
against Scott. The government did so on February 
12, well within the additional time given it by the 
district court. Thus, Scott was indicted in a timely 
manner, and the district court did not abuse its dis-
cretion in granting the government additional time 
to bring an indictment given the 
sence of essen-
tial witnesses. q 
United States 
Cianciola, 920 
F.2d 1295, 1301 (6th Cir.1990) analyzing Speedy 
Trial Act issues under an abuse of discretion stand-
ard), cert. denied,501 U.S. 1219, Ill S.Ct. 2830 
(1991). Moreover, Scott has failed to show that ac-
tual prejudice resulted from the 36-day period 
between his arrest on January 7 and his indictment 
on February 12. See United States' Monger. 879 
F.2d 218, 222 (6th Cir.), cert. denied,493 U.S. 997 
(1989) (requiring actual prejudice in order to obtain 
reversal of district court's decision to grant an ex-
cludable continuance of indictment or trial). 
The Speedy Trial Act also requires that a de-
fendant be brought to trial within 70 days following 
his indictment or first appearance before the court, 
whichever is later. Cianciola, 920 F.2d at 1298 
(citation omitted). Scott and three codefendants 
were indicted on February 12, but the last defendant 
(David Powers) did not make an initial appearance 
in district court until April 3, 1991. No motion for 
severance had been granted, and the district court 
Page 3 
therefore determined that the 70-day period for 
commencement of trial began on that date. Seel8 
U.S.C. § 3161(hX7) (providing for "fa] reasonable 
period of delay when the defendant is joined for tri-
al with a codefendant as to whom the time for trial 
has not run and no motion for severance has been 
granted"). Scott's trial did not begin until October 
21, 1990, over six months later. He contends that 
this length of time violated the commands of the 
Speedy Trial Act. 
Between January and October 1991, approxim-
ately 45 pretrial motions were filed by the parties in 
this case. In rejecting Scott's motion to dismiss the 
indictment for violation of the Speedy Trial Act, 
the trial court considered several motions that 
provided a basis for excluding time. On April II, 
for example, Scott's codefendant Kimberly Bull 
moved for new counsel. The trial court granted her 
motion, and new counsel was appointed on April 
25. This time was considered excludable pursuant 
to 18 U.S.C. § 3161(hX1)(F), which provides for 
excludable delay "resulting from any pretrial mo-
tion, from the filing of the motion through the con-
clusion of the hearing on, or other prompt disposi-
tion of, such motion[.J" The case was then set for 
trial on June 17, but Bull's counsel moved for a 
continuance to prepare for trial, and the case was 
reset for July 22. This time was also excluded. Fi-
nally, because at various times both the government 
and defense counsel moved for continuances due to 
their inability to locate material witnesses, the trial 
court moved the trial to October 21. This time was 
excluded pursuant to § 3161(hX3XA), which 
provides for excludable delay of any period 
"resulting from the absence or unavailability of the 
defendant or an essential witness." 
•4 No evidence exists that the trial court ab-
used its discretion in granting exclusions from the 
speedy trial period. Defendant has argued neither 
that the prosecution intentionally delayed the trial 
nor 1 
he suffered actual prejudice. See United 
States 
Williams, 711 F.2d 748 (6th Cir.) (delay 
during pendency of motions may under some cir-
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EFTA00192202

999 F.2d 541 
999 F.2d 541, 1993 WL 280323 (C.A.6 (Tem.)) 
(Cite as: 999 F.2d 541, 999 F.2d 541 (Table)) 
cumstances constitute denial of right to speedy trial, 
but, absent evidence of intentional prosecutorial 
delay and actual prejudice to the defendant, right to 
speedy trial is not violated by delay while motions 
are pending), cert. denied464 U.S. 986 (1983). In 
addition, many of the pretrial motions that the trial 
court considered were brought by Scott or his code-
fendants. Given that the trial court properly com-
puted exclusions from the 70-day speedy trial peri-
od, defendant was brought to trial within the time 
limits established by the Speedy Trial Act. 
Scott next contends that the trial court violated 
Federal Rules of Evidence 402 and 403 by allowing 
the admission of a photo album depicting Scott and 
several other individuals in various stages of un-
dress and engaged in sexual activity. According to 
Scott, the pictures are not an element of any of the 
substantive crimes with which he is charged and are 
therefore ri relevant. Further, because some of the 
photos portray interracial sex, Scott argues that they 
are unduly prejudicial and would tend "to inflame 
racial and religious prejudices the jurors may har-
bor." 
There is no question that this evidence has 
some relevance to the relationship among the 
parties. Some of the photos also showed the physic-
al abuse that Betty Frey received, thereby corrobor-
ating the government's theory that she had been 
controlled by Scott. Thus, the admission of the 
photo album would not violate Federal Rule of 
Evidence 402, because the pictures have at least 
some relevance to this case. 
The decision as to whether evidence is admiss-
ible under Rule 403 is len to the sound discretion of 
the trial court, and the value of the evidence must 
be substantially outweighed by its prejudicial char-
acter in order to If tify its exclusion under Rule 
403. United States 
Castro, 908 F.2d 85, 88 (6th 
Cir.1990). We review this exercise of discretion "in 
the light most favorable to its proponent, maximiz-
Page 4 of 6 
Page 4 
big its probative value an minimizing its prejudi-
cial effect." United States I Zipkin, 729 F.2d 384, 
389 (6th Cir.1984). 
The trial court reviewed carefully the evidence 
and found the photo album highly probative as to 
the relationship among the parties and as to their in-
tent and purpose for travelling to Memphis. We 
agree. Although some of them were taken prior to 
the trip in question, the photos tend to establish that 
the parties knew one another intimately. That the 
pictures were in Scott's possession tends to estab-
lish that he exerted some control over the women. 
One of the photos also showed one of the women 
lying naked on a bed with money on her stomach. 
As the district court noted, such evidence is relev-
ant to the question of whether the women traded 
sex for money. 
*5 Scott's claim of unfair prejudice is ground-
less. Several courts have upheld the admission of 
sexually explicit photos in cases involving viol - 
tions of the Mann Act. See, e.g., United States I 
Boyd, 610 F.2d 521 (8th Cir.197/), cert. denied,444 
U.S. 1089 (1980); United States I Harris, 534 F.2d 
207 (10th Cir.1975), cert. dented,429 U.S. 941 
(1976). Moreover, the trial court questioned pro-
spective jurors about their ability to view graphic 
photographs, some of which involved interracial 
sexual activity. The interracial nature of this case 
was evident when witnesses testified, and the pho-
tos simply constituted more evidence of the rela-
tionships among the individuals involved. The trial 
court did not abuse its discretion in allowing the ad-
mission of the photo album. 
IV. 
Finally, Scott challenges the sufficiency of the 
evidence necessary to convict him. Scott argues 
that the government did not prove that the dominant 
motive of the trip was to engage in prostitution. In 
addition, Scott contends that the government should 
have been required to prove that Scott knew that 
Betty Frey was a minor when he transported her 
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999 F.2d 541 
999 F.2d 541, 1993 WL 280323 (C.A.6 (Tem.)) 
(Cite as: 999 F.2d 541, 999 F.2d 541 (Table)) 
across state lines. Alternatively, he suggests that his 
lack of knowledge as to Frey's age should have 
been an affirmative defense to the charges regard-
ing his involvement with a minor. 
In reviewing the sufficiency of the evidence, 
we must view the evidence, and all reasonable 
re 
in-
nis
fences from the evidence, in the light 
t favor-
able to the government. United States 
Gibson, 
675 F.2d 825, 829 (6th Cir.), cert. denie ,459 U.S. 
972 (1982). We must affirm the conviction if "any 
rational trier of fact could have found the essential 
elements of the crime beyond a reasonable doubt." 
Jackson' En 443 U.S. 307, 319 (1979). 
To support a conviction under the Mann Act, 
courts have required that a dominant purpose of the 
interstate transportationcust be unlawful conduct. 
See, e.g., United States 
Prater, 518 F.2d 817, 819 
(7th Cir.1975) ("An intention that the women or 
girls shall engage in the conduct outlawed by [the 
Act] ... must be found to exist before the conclusion 
of the interstate journey and must be the dominant 
motive of such interstate movement.") (citations 
omitted). Scott argues that he and the others were 
travelling South to escape the cold Toledo winter. 
However, sufficient evidence existed to allow a 
reasonable juror to conclude otherwise. Scott and 
the others had travelled previously to Columbus, 
Ohio, to engage in acts of prostitution. In addition, 
testimony at trial established that many of the wo-
men solicited clients while at rest areas and truck 
stops. The "date" that DeBolt procured while the 
group was in Elizabethtown, Kentucky; the inquir-
ies to the Memphis security guard about where the 
"hookers hang out" in Memphis; and the pictures 
contained in Scott's photo album all evinced Scott's 
intent to transport women across state lines to en-
gage in prostitution. 
*6 Knowledge that a girl is under 18 years of 
age when transported interstate is not part of the 
proof required of the government in order to sustain 
a conviction under 18 U.S.C. § 2423, and Scott's ar-
gument to the contrary is unavailing. The govern-
ment proved, as it must, that Betty Frey was in fact 
Page 5 of 6 
Page 5 
a minor at the time of the interstate transportation 
by offering her testimony that she was born on July 
14, 1973, and the interstate transportation occurred 
in late 1990 and early January of 1991. The Mann 
I
ct does not require more. See, e.g., United States 
Hamilton, 456 F.2d 171, 173 (3d Cir.), cert. 
enied,406U.S. 947 (1972). 
Defendant argues that Hamilton and its pro-
geny are wrongly decided, because it is unconstitu-
tional to lessen the government's burden in these 
cases by not requiring the government to prove that 
the defendant knew of the victim's age. But, the le-
gislature has wide latitude to declare what consti-
tutes an offense against society and to define the 
elements. that constitute such an offense. Cf. 
Whalen I United States, 445 U.S. 684, 689 (1980). 
It does not offend due process for Congress to draft 
a statute that does not require the prosecution to 
show that a defendant believed the victim to be un-
der the age of 18 when she was transported inter-
state, because the law has traditionally afforded 
minors subs 
tial protection from others. See 
United States I Ransom, 942 F.2d 775, 777 (10th 
Cir.1991) (discussing 18 U.S.C. § 2241, which pro-
hibits those in the maritime and territorial jurisdic-
tion of the United States and in a federal prison 
from knowingly engaging in a sex act with another 
who has not attained the age of 12, and rejecting 
claim that due process requires government to 
prove defendant's intent because "from ancient 
times the law has afforded special protection to 
those deemed too young to understand the con-
sequences of their actions"), cert. denied,502 U.S. 
1042, 112 S.Ct. 897 (1992). 
Similarly, the Constitution does not require that 
a defendant be provided a defense of mistake of age 
when accused of a Mann Act violation involving a 
minor. Cf: id. at 776-78. Scott argues that the Equal 
Protection Clause is violated if he is unable to as-
sert a defense of mistake, because Congress 
provided for such a defense when it enacted 18 
U.S.C. § 2243, which criminalizes knowing en-
gagement in a sexual act with another under the age 
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• • 999 F.2d 541 
999 F.2d 541, 1993 WL 280323 (C.A.6 (Tenn.)) 
(Cite as: 999 F.2d 541, 999 F.2d 541 (Table)) 
of 16 by those in the maritime and territorial juris-
diction of the United States or in a federal prison. 
According to Scott, no rational basis exists for the 
distinction between the two statutes. 
Scott was convicted of transporting a minor in 
interstate commerce with the intent that she engage 
in prostitution. He was also convicted for know-
ingly transporting a minor in interstate commerce 
with the intent that the minor would engage in 
sexual intercourse with him. Both of these convic-
tions rested upon 18 U.S.C. § 2423, which provides: 
Whoever knowingly transports any individual 
under the age of 18 years in interstate or foreign 
commerce, or in any Territory or Possession of the 
United States, with intent that such individual en-
gage in prostitution, or in any sexual activity for 
which any person can be charged with a criminal 
offense, shall be fined under this title or imprisoned 
not more than ten years, or both. 
*7 Assuming, without deciding, that Scott is 
sufficiently "similarly situated" to a defendant ac-
cused of statutory rape of a minor under the age of 
16 within the territorial or maritime jurisdiction of 
the United States, we find that a rational basis ex-
ists for allowing the defense of mistake in 18 
U.S.C. § 2243 and denying such a defense under 
the Mann Act. The latter Act criminalizes prostitu-
tion or other criminal sexual activity that involves 
interstate commerce. Thus, minors in particular will 
often be very far from their usual support systems 
when transported interstate, and it is rational for 
Congress to want to heighten protection of such 
minor victims by denying Mann Act defendants the 
defense of mistake. Moreover, the Equal Protection 
Clause is not offended by gradual, increment 
change in the law. See, e.g., Railway Express 
New York, 336 U.S. 106, 110 (1949) ("It is no re-
quirement of equal protection that all evils of the 
same gius be eradicated or none at all."); see also 
Dallas 
Stanglin, 490 U.S. 19, 26 (1990) ("(A] 
State does not violate the Equal Protection Clause 
merely because the classifications made by its laws 
Page 6 of 6 
Page 6 
are imperfect. If the classification has some 
'reasonable basis,' it does not offend the Constitu-
tion simply because the classification 'is not made 
with mathematical nicety or because in practice it 
results in some inequality.' ") (citations omitted). 
Denying Scott the defense of mistake, then, does 
not violate the Constitution. 
AFFIRMED. 
FN* Honorable Wendell A. Miles, United 
States District Court for the Western Dis-
trict of Michigan, sitting by designation. 
FNI. That section provides in pertinent 
part as follows: 
The following periods of delay shall be ex-
cluded in computing the time within which an in-
formation or an indictment must be filed, or in 
computing the time within which the trial of any 
such offense must commence: 
(3XA) Any period of delay resulting from the 
absence or unavailability of the defendant or an es-
sential witness. 
18 U.S.C. § 3161(h). 
C.A.6 (Tenn.),1993. 
U.S. 
Scott 
999 F.2d 541, 1993 WL 280323 (C.A.6 (Tenn.)) 
END OF DOCUMENT 
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Page 1 of 6 
lAtstlaw. 
159 Fed.Appx. 128 
159 Fed.Appx. 128, 2005 WL 3438434 (C.A.11 (Fla.)) 
(ate as: 159 Fed.Appx. 128) 
C 
U.S. I. Clarke 
C.A.I 1 (Fla.),2005. 
This case was not selected for publication in the 
Federal Reporter.Please use FIND to look at the ap-
plicable circuit court rule before citing this opinion. 
Eleventh Circuit Rule 36-2. (FIND CTA II Rule 
36-2.) 
United States Court of Appeals,Eleventh Circuit. 
UNITED STATES of America, Plaintiff-Appellee, 
v. 
CLARKE, Defendant-Appellant. 
No. 05-12303 
Non-Argument Calendar. 
D.C. Docket No. 04-20656-CR-CMA. 
Dec. 15, 2005. 
Background: Defendant was convicted in the 
United States District Court for the Southern Dis-
trict of Florida of attempting to obtain a minor to 
engage in a commercial sex act, attempting to travel 
in foreign commerce to engage in illicit sexual con-
duct with another person, and attempting to induce 
a minor to engage in prostitution, and he appealed. 
Holdings: The Court of Appeals held that: 
(I) in order to convict defendant of attempting 
to induce a minor to engage in prostitution, govern-
ment was not required to prove that the prostitution 
in question was illegal country to which defendant 
intended to travel; 
(2) trial court did not abuse its discretion in re-
fusing to instruct jury regarding defense of entrap-
ment by estoppel; 
(3) trial court did not abuse its discretion in 
preventing defendant from making legal arguments 
in opening statement; and 
(4) trial court did not abuse its discretion in 
prohibiting defendant from presenting expert psy-
chiatric testimony. 
Pagc I 
Affirmed. 
West Headnotes 
111 Prostitution 315H €=>19(1) 
315H Prostitution 
315Hk19 Federal Offenses 
315HIc19(1) k. In General. Most Cited Cases 
In order to convict defendant of attempting to in-
duce a minor to engage in prostitution, government 
was not required to prove that the prostitution in 
question was illegal in Costa Rica, the country to 
which defendant intended to travel in order to en-
gage in prostitution with a minor. 18 U.S.C.A. § 
2422(b). 
121 Criminal Law 110 C=.772(6) 
110 Criminal Law 
110XX Trial 
110XX(G) Instructions: Necessity, Requis-
ites, and Sufficiency 
IIOk772 Elements and Incidents of Of-
fense, and Defenses in General 
110k772(6) k. Defenses in General. 
Most Cited Cases 
In prosecution for attempting to travel in foreign 
commerce to engage in illicit sexual conduct and 
attempting to induce a minor to engage in prostitu-
tion, trial court did not abuse its discretion in refus-
ing to instruct jury regarding defense of entrapment 
by estoppel; defendant did not allege that detective 
identified himself to defendant as law enforcement 
officer, defendant's reliance on statements made by 
detective in guise of owner of travel service that 
connected clients with prostitutes in Costa Rica was 
objectively unreasonable, and defendant pointed to 
no statements in record where he asked detective 
about legality of services provided or detective vo-
lunteered that services were legal. 
131 Criminal Law 110 CI704 
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