1

The Honorable Gary A. Fenner, United States District Judge for the Western

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-3262

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Western District of Missouri.

John T. Spurlock, * 

*

Appellant. * 

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Submitted: January 10, 2007

Filed: July 30, 2007

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Before COLLOTON, BRIGHT, and GRUENDER, Circuit Judges.

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COLLOTON, Circuit Judge.

Following a bench trial, John T. Spurlock was convicted of seven counts of

violating federal child exploitation statutes in connection with his attempt to entice

two minors to engage in unlawful sexual activity. The district court1

 imposed

concurrent sentences of 168 and 120 months’ imprisonment. Spurlock appeals, and

we affirm.
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I.

In January 2005, Spurlock entered an Internet chat room entitled “Daughters

Who Love Daddies,” and made contact with a person who identified herself as “Mary

Roberts.” “Mary” told Spurlock she had two young daughters, thirteen-year-old

“Amber” and ten-year-old “Mandy.” Unbeknownst to Spurlock, “Mary” was actually

Detective Angie Wilson, an undercover agent with the FBI, and “Amber” 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 Spurlock. 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 conversations with “Mary,” Spurlock made plans

to travel from his home in Texas to Kansas City, Missouri, to have sex with her

daughters. On February 5, 2005, Spurlock arrived in Kansas City and telephoned

“Mary” to inform her that he had purchased condoms and checked into a motel. FBI

agents arrested Spurlock at the motel. Spurlock admitted that he had traveled to

Kansas City for the purpose of having sex with “Amber” and “Mandy,” whom he

believed to be thirteen and ten years old.

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 below 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 conduct, in violation of 18
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U.S.C. § 2423(b). One count sought the forfeiture of property Spurlock used in

commission of the crimes.

Spurlock moved to dismiss the indictment. He claimed that his conduct did not

violate the statutes under which he was charged, because no actual minor was

involved. The district court denied the motion. Spurlock then rejected the

government’s offer of a conditional guilty plea, and asserted his right to go to trial.

During 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

acquittal 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 request for a two-level reduction

for acceptance 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 concurrently. 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.

II.

Spurlock’s first argument for a judgment of acquittal is that the statutes under

which he was convicted did not prohibit his conduct. He contends that because he

conversed only with an undercover agent, and the statutes required that an actual

minor must be involved, the government proved no violation of federal law. This

argument is foreclosed by our decisions in United States v. Helder, 452 F.3d 751 (8th
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Cir. 2006), and United States v. Hicks, 457 F.3d 838 (8th Cir. 2006). In Helder, we

concluded that an actual minor victim is not required for the crime of attempted

enticement under § 2422(b). 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 knowingly 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.

Spurlock next challenges his conviction 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). Spurlock argues that

contact with an adult can never, by itself, be an attempt to entice a minor. In

Spurlock’s view, the statute requires direct communication with a minor or a

purported minor. We disagree.

The elements of attempt are (1) intent to commit the predicate offense, and (2)

conduct that is a substantial step toward its commission. United States v. Blue Bird,

372 F.3d 989, 993 (8th Cir. 2004). We conclude that Spurlock intended 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
2

Spurlock’s claim that his contact with “Mary” did not constitute statutory rape

or statutory sodomy under Missouri law is beside the point. Section 2422(b) prohibits

an attempt knowingly to entice a minor to engage in “any sexual activity for which

any person can be charged with a criminal offense.” Count One of the indictment

alleges 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.

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admitted at trial that he “tried to persuade those two girls through their mother to

engage in sexual acts[.]” (Tr. at 76).

Spurlock’s conversations with “Mary” bear the familiar hallmarks of criminal

attempt. They went beyond mere preparation; they were necessary to the

consummation 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 “the efficacy of § 2422(b) would be

eviscerated if a defendant could circumvent the statute simply by employing an

intermediary to carry out his intended objective.” Murrell, 368 F.3d at 1287. We do

not believe the statute exempts sexual predators who attempt to harm a child by

exploiting the child’s natural impulse to trust and obey her parents. Accordingly, we

conclude that Spurlock attempted to entice “Amber” and “Mandy” through his

conversations with their purported mother, and we reject his challenge to the

conviction on Count One.2

Finally, we consider Spurlock’s claim that the district court erred at sentencing

by denying him a two-level reduction for acceptance of responsibility. Under USSG

§ 3E1.1(a), the burden is on a defendant to show that he “clearly demonstrate[d]”

acceptance of responsibility. See United States v. Thomas, 93 F.3d 479, 489 (8th Cir.

1996). A district court’s factual determination about whether the defendant accepted

responsibility is entitled to great deference, and we will reverse it only if it is so
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clearly erroneous as to be without foundation. United States v. Little Hawk, 449 F.3d

837, 839 (8th Cir. 2006).

In certain “rare situations,” a defendant may clearly demonstrate acceptance 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 conduct).” Id. 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.1(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 factual 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 situations” in which a defendant who is convicted 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

stipulate to the content of the more than sixty exhibits the government introduced at

trial, or to the factual elements of guilt. After the government presented its case-inchief, Spurlock took the stand and admitted 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 elements of guilt and to narrow the case to purely
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legal issues – i.e., whether the federal 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 “put[] the government 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)

(“[A] general denial defense . . . forces the government to prove every element of the

crime charged.”) 

The district court found that Spurlock’s actions resulted in “considerable effort

and preparation on the part of the government and necessitated the government

presenting its case at trial.” (Tr. at 84). Timeliness is a relevant factor in determining

eligibility for a two-level reduction, both because untimely admissions may force the

government and the court to expend resources unnecessarily, see United States v. Kiel,

454 F.3d 819, 824 (8th Cir. 2006); United States v. Erhart, 415 F.3d 965, 972 (8th

Cir. 2005), 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 F.3d 798, 804 (7th Cir. 1999); United States v. Ewing, 129 F.3d 430,

436 (7th Cir. 1997). Spurlock’s last-minute admissions, made after he waited to

confirm that the government was able to prove the charged offenses in its case-inchief, “had little effect on the quantum of evidence the government was required to

present,” United States v. King, 36 F.3d 728, 735 (8th Cir. 1994), and did not amount

to persuasive showing of contrition and remorse. See also United States v. Abfalter,

340 F.3d 646, 652 (8th Cir. 2003); United States v. Field, 110 F.3d 592, 594 (8th Cir.

1997) (upholding denial of acceptance-of-responsibility adjustment where defendant

“went to trial contesting the factual elements of guilt” and made “no stipulations of

guilty conduct . . . limiting the trial to a constitutional or statutory challenge”).
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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 Spurlock’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 circumstance from its opinion.

Contemporaneously with Spurlock’s pre-trial proceedings, two other defendants faced

virtually the same charges in the same district (but before a different judge) as

Spurlock. See United States v. Helder, 452 F.3d 751 (8th Cir. 2006); United States

v. Hicks, 457 F.3d 838 (8th Cir. 2006). Based on an argument that the statute under

which they were charged, 18 U.S.C. § 2422(b), required the presence of an actual

minor, rather than an adult pretending to be a minor, the district court granted those

defendants’ respective motions for judgment of acquittal after a jury trial, see Helder,

452 F.3d at 753, and dismissal of the indictment, see Hicks, 457 F.3d at 840.

Spurlock’s decision to proceed to trial was indisputably motivated by an attempt to
3

Spurlock unsuccessfully argued the issue in his own case.

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preserve for appeal the same legal argument that had worked for similar defendants

in the same court.3

 

The Guidelines specifically anticipate circumstances in which a defendant

might require or prefer a trial in order to preserve certain legal issues. Commentary

Note 2 to U.S. SENTENCING GUIDELINES MANUAL § 3E1.1 (2004) sets forth:

a defendant may clearly demonstrate acceptance of responsibility for his

criminal 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 issues that do not relate to factual guilt (e.g., to make

a constitutional challenge to a statute or a challenge to the applicability

of a statute to his conduct). In each such instance, however, a

determination 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. § 2242(b) to his conduct. Thus, the court should determine

his acceptance of responsibility on his pre-trial statements and conduct. 

The PSI report indicates that Spurlock’s pretrial statements and conduct

undoubtedly demonstrate his acceptance of responsibility. Following his arrest,

Spurlock admitted the wrongfulness of his conduct and confessed to all relevant

conduct. Spurlock also consented to the search of his computer and to officers’

assuming his online presence for further investigation. Throughout his pre-trial

proceedings, Spurlock conceded that he had engaged in 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 stipulated to some of the government’s

evidence, including chain of custody of the computer files. At trial, he did not object
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to the admission of the government’s exhibits and only cross-examined one of three

government witnesses. 

True, Spurlock put the government to some burdens at trial by his general

denial. 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 convicted,

and only then admits guilt and expresses remorse.” U.S. SENTENCING GUIDELINES

MANUAL § 3E1.1 cmt. n.2 (2004) (emphasis added). Spurlock did not withhold

admission of guilt until the government 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

cannot 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 Spurlock did.

Spurlock faced the special and rare circumstances 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 sentence and remanded for re-sentencing with a reduction for acceptance

of responsibility.

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