United States Court of Appeals

For the Eighth Circuit

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No. 16-1616

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

David S. Duffin

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Western District of Arkansas - Fayetteville

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 Submitted: December 12, 2016

Filed: December 28, 2016

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Before RILEY, Chief Judge, WOLLMAN and SMITH, Circuit Judges.

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RILEY, Chief Judge.

A jury found David Duffin guilty of transporting a minor in interstate

commerce with intent to engage in criminal sexual activity in violation of 18 U.S.C.

§ 2423(a). The district court1

 sentenced Duffin to 420 months imprisonment followed

1

The Honorable Timothy L. Brooks, United States District Judge for the

Western District of Arkansas
by lifetime supervised release and included a provision that Duffin have no contact

with his victims. Duffin appeals (1) his conviction, arguing the government failed to

present sufficient evidence of his intent to engage in criminal sexual activity in his

interstate transportation of the minor, and (2) the district court’s no-contact

recommendation/order, claiming the district court lacked statutory authority to

implement such a provision. Because a reasonable jury could conclude Duffin

transported a minor in interstate commerce with the requisite intent to engage in

criminal sexual activity and because we lack jurisdiction to hear an appeal of a

recommendation to the Bureau of Prisons, we affirm. 

I. BACKGROUND

Beginning October 2014, Duffin communicated with then twelve-year-old Jane

Doe using a Facebook account in which Duffin falsely represented himself to be his

fictitious fourteen-year-old son, Will Cresbo, living in Hawaii. Jane Doe entered into

an online relationship with the fictional Cresbo, and Cresbo eventually facilitated an

in-person meeting between Jane Doe and Duffin, supposedly Cresbo’s father. At the

time, both Jane Doe and Duffin lived in Illinois. Duffin held himself out as a former

talent scout for the television show America’s Got Talent and gave Jane Doe voice

lessons beginning in November 2014. Jane Doe and Duffin engaged in sexual

activities at these voice lessons and also had sexual intercourse at Duffin’s house in

Illinois approximately five times. Jane Doe said Duffin planned to leave Chicago with

her and live together, posing as father and daughter until she became eighteen, while

still having sexual intercourse. 

In March 2015, Jane Doe’s parents discovered she had lied about her

whereabouts, and her parents subsequently restricted Jane Doe from leaving the house

and limited her use of her computer and monitored her cell phone. Jane Doe and

Duffin made plans to leave the state of Illinois when Jane Doe’s school was closed for

spring break. On Saturday, April 4, 2015, Duffin picked up Jane Doe from her house

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and left for Arkansas. Once they arrived in Bentonville, Arkansas, Duffin and Jane

Doe checked into a Motel 6 and had sexual intercourse. 

Jane Doe’s parents reported her missing to the Chicago Police Department the

same day Jane Doe and Duffin left the state of Illinois. Chicago Police Department

investigators began to suspect Duffin after realizing the Cresbo Facebook account was

fictitious and Duffin gave Jane Doe voice lessons. Investigators apprehended Duffin

and Jane Doe in Arkansas and took Duffin into custody on April 9, 2015. 

 

On June 3, 2015, Duffin was charged in a one-count indictment with knowingly

transporting Jane Doe, then a thirteen-year-old female, in interstate commerce from

Illinois to Arkansas with intent to engage in sexual intercourse for which Duffin could

be charged with a criminal offense under Ark. Code Ann. § 5-14-103(a)(3)(A), all in

violation of 18 U.S.C. § 2423(a). Duffin’s jury trial began August 17, 2015. After

the close of the government’s case, Duffin moved for acquittal pursuant to Federal

Rule of Criminal Procedure 29 on the ground the government had not presented

sufficient evidence that Duffin’s dominant purpose in transporting Jane Doe across

state lines was to engage in criminal sexual conduct. The district court found the

government had presented sufficient circumstantial evidence of Duffin’s intent and

denied the motion for acquittal. The jury returned a guilty verdict on August 19,

2015. 

Following the jury trial, Duffin wrote Jane Doe a letter stating: 

I took it to trial just so I could see you one last time. . . . I don’t know if

you understand I’m going to prison for over 20 years. You understand

that right? . . . I’m going to try to get the prison in Kansas. Maybe when

you’re old enough you would come visit me. 

 

Duffin sent another letter to Jane Doe following the disclosure of the initial

Presentence Investigation Report (PSR) on December 22, 2015. Also in December

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2015, the FBI recovered images stored on Duffin’s cell phone depicting Jane Doe

engaged in sexually explicit conduct. An amended PSR was filed February 2, 2016,

calculating Duffin’s advisory guideline sentence range as life imprisonment. 

At the sentencing hearing held February 19, 2016, Jane Doe’s mother reported

Duffin’s letters caused difficulty for Jane Doe and Jane Doe did not want to hear from

Duffin. The district court then stated: 

I don’t know if I can use the word “order,” but I am going to send as

strong of an admonition as I possibly can, both to Mr. Duffin but also to

the Federal Bureau of Prisons . . . that they are to do what they can to

ensure that there are no such communications, ever. 

The district court went on to say: “I have no way of actually supervising the people

that monitor the mail, nor do I have the ability to know, much less supervise, any

third-party schemes.”

The district court sentenced Duffin to 420 months imprisonment followed by

supervised release for the remainder of his life. As part of its sentence, the district

court included: “I am going to order you not to ever have contact with the victims in

this case again. Period.” The district court went on to explain:

I’m going to ask that the recommendation section of the judgment in this

case contain a specific recommendation that would actually be couched

more in terms of an order that the defendant is ordered and that the BOP

is requested to assist the Court in effectuating the order that Mr. Duffin

is not to have any communication with “Jane Doe” or any of the other

victims2

 that have been identified in this hearing and that they are to, to

the extent that they have the ability, are to examine outgoing mail in an

2

Duffin also used the Cresbo Facebook profile to communicate with and solicit

explicit photographs from at least one other minor. 

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appropriate way that does not otherwise violate Mr. Duffin’s rights, to

intercept any attempts to communicate with the victims in this case.

Duffin’s defense attorney objected to the no-contact provision, questioning the

district court’s authority to include such a provision as part of Duffin’s sentence. The

district court reasoned “it is at least envisioned in other context [sic] whereby the court

does have the authority to restrict communications by appropriate instruction to the

BOP” and clarified:

[T]o the extent that the Court does not have the authority or that it is in

some manner violative of Mr. Duffin’s constitutional rights, then the

Court would nevertheless make a recommendation to the Bureau of

Prisons that it intercept any such communications and do what it can to

enforce a lack of contact or to enforce a no-contact provision between

the defendant and these victims.

In the section of the judgment designated for recommendations to the BOP, the

district court included the following provision: 

After the trial, the defendant sent two letters (from his detention facility)

to the minor victim of his offense of conviction. Consequently, at the

time of sentencing, and at the victim’s request, the Court ordered the

defendant to have no contact with the primary victim in this case, LA,

and a victim by means of relevant conduct, MP. . . . Therefore, to the

extent permitted by its policies and procedures, it is recommended and

requested that the BOP assist the Court in effectuating this order by

examining the defendant’s outgoing mail and other communications in

an appropriate manner that does not otherwise violate the defendant’s

rights. If the BOP determines that the defendant has communicated (or

attempted to communicate) with the aforementioned victims, the Court

would recommend that the BOP take the Court’s no contact order into

consideration when determining what, if any, penalties and sanctions

would be appropriate to impose. 

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Duffin appeals both the district court’s denial of his motion for acquittal and the

no-contact provision of his sentence. Having jurisdiction under 28 U.S.C. § 1291, we

affirm Duffin’s conviction. We conclude we lack jurisdiction to review the no-contact

provision. 

II. DISCUSSION

A. Sufficiency of the Evidence

Duffin first argues the district court erred in denying his motion for acquittal

because the evidence introduced at trial was insufficient for a reasonable jury to

determine, beyond a reasonable doubt, that Duffin had the dominant motive of

criminal sexual conduct in transporting Jane Doe across state lines. “We review the

denial of a motion for judgment of acquittal de novo, viewing the evidence in the light

most favorable to the verdict. We will reverse only if no reasonable jury could have

found the defendant guilty beyond a reasonable doubt.” United States v. McArthur,

836 F.3d 931, 938-39 (8th Cir. 2016) (citation omitted). 

We agree with the district court the circumstantial evidence presented in this

case was sufficient. Section 2423(a) prohibits “knowingly transport[ing] an individual

who has not attained the age of 18 years in interstate or foreign commerce . . . with

intent that the individual engage in prostitution, or in any sexual activity for which any

person can be charged with a criminal offense.” 

Duffin concedes he transported Jane Doe in interstate commerce, Jane Doe was

under the age of fourteen years old at the time of the travel, and sexual intercourse

with a person less than fourteen years of age is a crime under the law of Arkansas, yet

Duffin argues the government did not prove he had the required intent to engage in

criminal sexual intercourse with Jane Doe. To satisfy the intent element of § 2423(a),

“illicit behavior must be ‘one of the purposes motivating the interstate transportation,’

but need not be the dominant purpose.” United States v. Cole, 262 F.3d 704, 709 (8th

Cir. 2001) (quoting United States v. Vang, 128 F.3d 1065, 1071 (7th Cir. 1997)). 

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“The sexual activity just may not be merely incidental to the trip.” United States v.

Hoffman, 626 F.3d 993, 996 (8th Cir. 2010). 

Duffin argues the fact that Duffin and Jane Doe engaged in sexual intercourse

in Illinois demonstrates Duffin did not have the requisite intent because it was not

necessary for him to travel across state lines to engage in sexual intercourse. 

However, shortly before Duffin and Jane Doe left Illinois, Jane Doe’s parents

grounded her, limited her computer use, and began monitoring her cell phone. Jane

Doe would not have been able to engage in sexual contact with Duffin. Jane Doe’s

testimony that (1) Duffin planned to hold her out as his daughter in Arkansas while

still having sexual intercourse with her, and (2) they engaged in sexual intercourse

immediately after arriving in Arkansas provides sufficient circumstantial evidence that

a reasonable jury could find Duffin had the intent of transporting Jane Doe across state

lines to engage in criminal sexual activity. See Cole, 262 F.3d at 709 (reasoning the

defendant’s intent could be inferred from the fact that the defendant transported a

minor across state lines shortly after being ordered to have no contact with her and

because the defendant engaged in sexual intercourse with the victim their first night

out of state). The district court did not err in denying Duffin’s motion for acquittal.

B. No-Contact Provision

Duffin also argues the district court did not have the authority to order him not

to have contact with his victims. We review a court’s authority to impose a particular

sentence de novo. See United States v. Johnson, 517 F.3d 1020, 1023 (8th Cir. 2008). 

However, “a non-binding recommendation to the BOP is not reviewable as it is not

a final decision of the district court.” United States v. Kerr, 472 F.3d 517, 520 (8th

Cir. 2006). 

The district court stated it was going to “order [Duffin] not to ever have contact

with the victims in this case again” and later clarified this was a recommendation for

the BOP to be included in the recommendation section of the judgment. To the extent

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the district court ordered Duffin not to have contact with his victims, the district court

does not have statutory authority to issue such an order. See 18 U.S.C. § 3551

(authorizing only sentences of a term of probation, a fine, or a term of imprisonment). 

We do not have jurisdiction to review the provision recommending the BOP

monitor Duffin’s communications. See Kerr, 472 F.3d at 520. The First Circuit

determined a provision included in a sentence was an order and not a recommendation

because the district court’s oral comments made clear the provision was an order and

“[n]otably, the court did not utilize a space in the sentencing form earmarked for

recommendations to the Bureau of Prisons.” United States v. Cintron-Fernandez, 356

F.3d 340, 345 (1st Cir. 2004). Unlike the provision in Cintron-Fernandez, the district

court here clarified to “the extent it [did not] have authority” it would nonetheless

make a recommendation to the BOP, which was then included in the space on the

sentencing form marked for recommendations to the BOP. Though the district court

had no authority to order Duffin not to have contact with his victims, the actual

provision was only included in the recommendation section of the judgment, and thus

we do not have jurisdiction to review it on appeal. See Kerr, 472 F.3d at 520.

III. CONCLUSION

Because there was sufficient evidence to support the jury verdict and because

we interpret the no-contact provision as a non-binding recommendation to the BOP

over which we have no jurisdiction, we affirm. 

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