Of the District of Puerto Rico, sitting by designation. * 

# UnitedStates C ourt o f App eals

For the First C ircuit

No. 06-1709 UNITED STATES OF AMERICA, Appellee,

v . MATTHEW DWINELLS, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Patti B. Saris, U.S. District Judge]

Before Lipez, Circuit Judge, Selya, Senior Circuit Judge, and Delgado-Colón, * District Judge. *

Christopher R. Goddu, Federal Defender Office, with whom Syrie Fried, Federal Defender Office, was on brief, for appellant. Donald L. Cabell, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

November 20, 2007-2- SELYA, Senior Circuit Judge. We are called upon today to determine the legitimate scope of a congressional enactment aimed at the vexing problem of Internet predation. The statute in question, 18 U.S.C. § 2 4 2 2 ( b ), criminalizes the use of any instrumentality of interstate or foreign co mm e rce, such as the Internet, to persuade, induce, entice, or coerce a minor to engage in criminal sexual activity. We conclude that, in enacting section 2422(b), Congress said what it meant and meant what it said. Consequently, we reject the appellant's thesis that section 2422(b) should be interpreted to include, as an additional element of the offense, an intent that the underlying sexual activity actually take place.

In view of this holding and our case-s p e c i fic determination that the government adduced suf f i c ient evidence to support t he appellant's convictions on all the counts that were tried, we affirm the judgment below. The tale follows. I. BACKGROUND

Because this a p peal involves a challenge to the sufficiency of the government's proof, we rehearse the facts in the light m o s t f a v o r a b l e t o t h e j u r yv e r d i c t , c o n s i s t e n t w i t hr e c o rd support. See United States v. Carroll, 105 F.3d 740, 742 (1st Cir. 1997). For a period of approximately ten months beginning in the spring of 2002, defendant-appellant Matthew Dwinells enga ged inThe record is cryptic as to which of three su c h chatrooms — 1 "I Love Older Men," "13+ Single Looking," or "16+ Single Looking"

— hosted this first encounter. That uncertainty has no bearing on the outcome of this appeal. -3- extensive Internet contact with three different correspondents thought to be teenage girls. In fact, the "girls" were histrionic law enforcement officers. That misconception proved to be the appellant's undoing.

The first electronic will-o'-the-wisp with whom the appellant communed was "Maria," whose on-line profile made her out to be a fourteen-year-old living in Dayton, Ohio. But on-line profiles can be misleading, and Maria was in actuality a persona developed by two Dayton police detectives.

In April of 2002, Maria entered a Yahoo c h atroom dedicated to musings about love and lust. There, Maria "met" the 1 appellant, who truthfully identified himself as Matthew Dwinells,

a for t y - y e a r - o l dm a nf r o mL a w r e n c e , M a s s a c h u s e t t s . T he conversation quickly accelerated through the mutual use of instant messaging, which allows Internet users to contact eac h o t h er for private, one-on-one conversations. After only two chats, the appella n t v o iced his desire to marry Maria once she turned eighteen. Further intimacies soon were exchanged. For example, the pair chatted about the style and color of Maria's panties, and Maria sent the appellant a picture of herself in a cheerleadingBesides this webcam image, the appellant sent numerous other 2 pictures of his penis to Maria over the course of their relationship. -4- outfit. Thereafter, the appellant declared that he wanted to have a baby with her.

All in all, the appellant conversed with Maria over the Internet on more than one hundred occasions. In addition, he initiated several telephone c a l ls. After Maria responded positively to an inquiry as to whether she would like to see the appellant's penis, he sent her a picture of it by computer and then asked her in graphic detail exactly what she wanted to do with it. 2

In various on-line chats, the appella n t promised Maria that he would teach her how to swallow his ejaculate and asked her whether it was "OK" for him to take her virginity. He also stated that he wished Maria was with him, that he wanted her in his bed, and that — if she would mail him her underwear — he would start a clothes drawer for her in his house. In response t o r e p e a t ed requests of this sort, the detectives posing as Maria sent the appellant age-appropriate f e minine undergarments and a series of staged photographs.

The appellant's amorous conversations were not characterized by much in the way of follow-through. He mentioned gifts of a diamond ring and a toe ring but never sent either one. Similarly, he said that he would give Maria a prepaid cellular telephone but never made the gift. He offered to buy, but did notAfter havin g b roken one of his vows to meet Maria, the 3 appellant sent her a gold chain as a sort of consolation prize. Paige's persona was not ent i r e ly consistent. At different 4 times, she held herself out as either thirteen or fourteen years old. Moreover she claimed variously to be sexually experienced and to be a virgin. -5- actually purchase, lingerie for her. He promised her a $25 weekly allowance but failed to f o r ward any cash. And on three separate occasion s — in May, July, and August of 2002 — he made and then scuttled plans to visit her. 3

The appellant apparently had a wandering eye. Beginning in July of 2002, he also started to chat electronically with "Paige," whose on-line profile described her as a fourteen-year-old girl from South Carolina. Paige was a shared no m d e p l u m e for a 4 local South Carolina police detective and a federal agent (a postal inspector investigating sex crimes) t o w hom he handed off the
persona. The appellant met Paige in a ch a t room labeled "I Love Older Men," where Paige engaged in a sexually explicit conversation with him and said that she had sexually revealing pictures of herself. The appellant rose to the bait and expressed interest in these depictions. Paige requested, and received, his address (in Lawrence, Massachusetts). The appellant went on to ask for Paige's under w e ar, and the pair discussed how the appellant might visit Paige.-6- Plans for a South Carolina rendezvous never came to fruition. The two agreed that they would meet in August, and, on August 13, the appellant promised to visit in two weeks. On August 17, the visit was rescheduled to August 30. But on August 28, the appellant informed Paige that work-related obligations precluded the assignation.

Notwithstanding this setback, the talk about a rendezvous persisted. In September, the couple discussed the possibility of Paige visiting the appellant in B o ston. The appellant proposed that they meet at S o uth Station (Boston's principal ground transportation hub) and signaled his intentions by observing that "if I get caught im in jail." Paige replied that s h e w o u l d keep their rendezvous secret and then began to mention specific flight and bus schedules that could ta k e h e r t o Boston. The appellant helped Paige make sense of the on-line schedules, checked to ensure that Paige had identification that would allow her to fly, and repeatedly assured her that he would send travel money. He continued to press her to transmit more photographs. The last conversation between the two occurred on September 14, 2002. The travel money never arrived.

The same postal inspector later developed a new persona: thirteen-year-old "Ashley," Paige's cousin from South Carolina. On September 27, Ashley and the appellant met on-line. The appellant immediately sought to obtain pictures of her. In a chat less than-7-

three weeks later, Ashley expressed a fear of the roving sniper who

was then terrorizing Washington, D.C. The appellant gallantly told her to "come here" so that he could keep her safe. He offered her travel money but worried aloud that if she came, it would be "rape" if they slept together. Ashley assured him that she would consent and, thus, avoid the stigma. Ap p a r e ntly grateful for this

conce s s i on, the appellant promised Ashley that should she become impregnated, she would receive $250,000 as the beneficiary of his life insurance policy.

In the end, Ashley never received any travel money from the appellant. He did, however, buy lingerie for her in exchange for a promise to send him the underwear she was wearing as well as

some photographs. On two occasions — one in 2002 and again in 2003 — the appellant made vague promises that he would visit Ashley. Neither trip materialized.

On March 19, 2003, federal authorities co n d u c t ed a warrant-backed search of the appellant's home. The appellant was present at the time of the search. A dresser drawer in the appellant's bedroom contained greeting cards, lingerie, and pictures sent by Maria.

After having been arrested, the appellant agreed to speak with a law enforcement officer. Among other things, he confessed to having movies and photographs of child pornogr a p hy on his computer.-8- In a later sworn statement, the appellant admitted that his on-line actions were "wrong," but vouchsafed that he had acted "just for fun" and had thought of the Internet as "fantasy land." He said that his "intentions were strictly fantasy" and that he never intended to meet any of the young girls, engage in sex with them, or do anything more than chat.

In due course, a fede r a l grand jury indicted the appellant on three counts of attempted enticement of a minor. See 18 U.S.C. § 2422(b). The indictment charged that the appellant had attempted to entice the three young "girls" (one per count) into engaging in acts that would violate either a Massachusetts statute prohibiting sexual intercourse with minors under sixteen years of age, M a s s . G e n . Laws ch. 265, § 23 (2007), or a Massachusetts statute prohibiting unnatural and lascivious acts with such minors, id. ch. 272, § 35 A . A superseding indictment added two more charges: one for receipt o f c h ild pornography, 18 U.S.C. § 2252(a)(2), and one for possession of child pornography, id. § 2252(a)(4)(B).

After some preliminary skirmishing (not relevant here), the appellant pleaded guilty to the t w o child pornography counts and proceeded to trial on the three enticement counts. The trial lasted six days. The appellant testified on his own behalf, advancing both an entrapment defense and a "fantasy" defense. Under the latter theory, he left himself room to maneuver: he-9-

e i t h e r knew that his correspondents were adults or believed that their conversations constituted mutually entertained fantasies, in which proposals for assignations and lurid descriptions of sexual acts were merely fanciful embellishments in an elaborate game. The jury was not buying; it rejected these defenses and found the appellant guilty on all three counts. The district court denied his renewed motion for judgment of acquittal and, on March 9, 2006, sentenced him to fifty-one months in prison. This timely appeal followed. II. ANALYSIS

Before us, the appellant propounds two claims of error. One relates to statutory interpretation; the other relates to alleged evidentiary insufficiency. We discuss them separately. A. Statutory Interpretation. The appellant's most touted ground of appeal concerns the interpretation of the statute of conviction. That statute reads in relevant part:

Whoever, using the mail or any fa c i l i ty or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual acti v i t y for which any person can be charged with a criminal offense, or attempts to do so, shall be [punished as provided]. 18 U.S.C. § 2422(b) (2000).The four verbs contained in the statute — persuading, 5 inducing, e n t i cing, and coercing — signify different things. In the interests of brevity, we use the term "entice" throughout this opinion to encompass all four. -10-

Plainly, the statute requires that a de f e n dant possess the specific intent to persuade, induce, entice, or coerce a minor into committing some illegal sexual activity. The appellant 5

con t e n d s that an additional "intent" element should be read into th e s t a tute: an intent that the enticed conduct actually take place. Ably represented, he musters a plethora of arguments in support of that position.

The appellant first strives to convince us that a double intent requirement, such as he envisions here, is not a curiosity. We agree to some extent with his premise: reading a criminal statute to provide for a double intent would not be without analogues in the law. Many statutes criminalize an act when paired with a n i n t e n t to perform some other, distinct act. A common example is breaking and entering with intent to commit a felony. See, e.g., Mass. Gen. Laws ch. 266, § 17 (2007). Yet, typically, such statutes provide explicitly for that additional element of intent. See, e.g., id.; Cal. Penal § 459 (West 2007); N.Y. Penal Law § 140.30 (McKinney 2007).

Seen in this light, the appellant's premise does not take him ver y far. In stark contrast to the mine-run of statutes involving heterogenous intent requirements, there is nothing on the-11-

f a c e o f section 2422(b) providing for an added "intent" element. Thus, the appellant's a n a l ogues have a boomerang effect. Section 2422(b) appears to be the opposite of what the appellant envisions — a statute in which Congress deliberately refrained from including an additional "intent" element.

The a p p e l l ant next asks us to take into account the substantial jail sentences — up to fifteen years — attendant to violations of section 2422(b). It would be implausibly draconian, he maintains, for a fifteen-year incarcerative sentence to attach to an attempt to entice unaccompanied by a corresponding intent to consummate the underlying sexual activity.

This is a shell game — an argument that hinges on matters of policy, not on statutory construction. Absent Eighth Amendment concerns — and none are apparent here — it is not the proper function of the c o u r ts to act as super-legislatures, passing judgment up o n Congress's penological determinations. See, e.g., Neal v. United States, 516 U.S. 284, 295-96 (1996).

Another observation seems pertinent in response to this plaint. Congress recently amended section 2422(b), see Adam Walsh Chi l d P r o t e c t i o n a n d S a f e t y A c t o f 2 0 0 6 , P u b
. L . N o . 1 09-248, § 203, 120 Stat. 587, 613, marking the third consecutive increase in the maximum available sentence for violations of section 2422(b). See Pub. L. No. 104-104, § 508, 110 Stat. 56, 137 (19 96) (establishing maximum imprisonment term of ten years); Pub. L. No.-12-

105-314, § 102, 112 Stat. 2974, 2975-76 (1998) (increasing maximum term to fifteen years); Pub. L. No. 108-21, § 103(a)(2)(B) & (b)(2)(A), 117 Stat. 650, 652, 653 ( 2 0 03) (inserting five-year

man d a t o r y minimum and increasing statutory maximum to thirty years). To us, this suggests a crystallizing vision on Congress's part of the need for stern punishment in this milieu.

Perhaps more importantly, by the time Congress passed the most recent amendment to the applicable penalty provisions, every court of appeals that had reached this issue had determined that section 2 4 22(b) does not include an additional "intent" element. See United States v. Thomas, 410 F.3d 1235, 1244 (10th Cir. 2005); United States v. Patten, 397 F.3d 1100, 1103 (8th Cir. 2005); United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004); United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000). Assuming, as we are inclined to do, that Congress keeps itself apprised of developments in the federal courts, we find the most likely inference to be that Congress fully intended to treat acts like t h ose attributed to the appellant with the utmost gravity, whether or no t t h e accused intended that the enticed sex acts be consummated.

The appellant further suggests that his proposed interpretation o f t h e statute is desirable because of either the rule of lenity or the principle of constitutional avoidance. These suggestions are unpersuasive.-13- The rule of lenity provides that in a criminal case, a court must resolve statutory ambiguity in favo r of the accused. Bifulco v. United States, 447 U.S. 381, 387 (1980); United States

v. N i p p o n Paper Indus. Co., 109 F.3d 1, 7 (1st Cir. 1997). "But the sine qua non for the rule's application is genuine ambiguity, and a statute is not ambiguous simply because litigants (or even an occasional court) question its interpretation." United States v. Ahlers, 305 F.3d 54, 62 (1st Cir. 2 0 0 2 ) ; s ee United States v. Jimenez, ___ F.3d ___, ___ (1st Cir. 2007) [2007 WL 3171348, at *6] (explaining that "genuine ambiguity requires more than a possible alternative construction").

The appellant tries to paint a picture of uncertainty by arguing that th e courts of appeals have split over the interpretation of section 2422(b). But the case law does not support that gloomy assessment. Although two courts o fa p peals, whilst upholding convictions under section 2422(b), have mentioned the defendant's intent to engage in sexual acts, see United States
v. M e e k , 3 6 6 F . 3 d7 0 5 , 7 1 8 ( 9 t hC i r . 2 0 0 4 ) ; U n i t e dS t a t e s v. Farner, 251 F.3d 510, 513 (5th Cir. 2001), such a finding was not necessary to the decision in either instance. E qually as significant, neither court sought to resolve the issue of what kind of intent was required by the statute. Those decisions are, therefore, of no assistance to the appellant.-14- Insofar as we can tell, the decisions that are on point uniformly reject the "double intent" hypothesis. See United States v. Brand, 467 F.3d 179, 202 (2d Cir. 2006); Thomas, 410 F.3d at 1244; Patten, 397 F.3d at 1103; Murrell, 368 F.3d at 1286; Bailey, 228 F.3d at 639. We consider this view confirmed — not weakened — by the recent decision in United States v. Goetzke, 494 F.3d 1231 (9th Cir. 2007). There, the Ninth Circuit seems to have held that section 2422(b) does not require proof of an intent that the sexual acts take place. See id. at 1236.

That ends this aspect of the matter. Because the rule of lenity applies only when the meaning of a criminal statute is genuinely uncertain, Ahlers, 305 F.3d at 62, the rule simply does not pertain here.

The canon of constitutional avoidance is equally inapposite. That c anon teaches that Congress is presumed to legislate in accordance with the Constitution and that, therefore, as between two plausible constructions of a statute, an inquiring court should avoid a constitutionally suspect one in favor of a constitutionally uncontroversial alternative. See Ashwander v. TVA, 297 U.S. 288, 341 (1936) (Bran d e i s , J., concurring); United States v. Nasci m e n t o , 491 F.3d 25, 38 (1st Cir. 2007). The appellant asseverates that, without a requirement that the accused intend consummation of the enticed sex acts, section 2422(b) would threaten speech protected by the First Amendment and, accordingly,-15-

that we should read that additional element into the statutory
text. This asseveration rests upon a poro u s foundation. For one thing, the doctrine of constitutional avoidance does not come into play unless alternative constructions of a statute are "fairly possible." United States v. X-Citement Video, Inc., 513 U.S. 64, 69 (1994). Here, the absence of any ambiguity defeats the constitutional avoidance argument. See, e.g., Jone s v . United States, 529 U.S. 848, 857 (2000) (noting that, as a precondition to application of the canon of constitutional avoidance, the statute in question must be fairly susceptible to differing constructions); Nascimento, 491 F.3d at 38 ("Courts simply are not free to interp r et statutes as becoming inoperative when they approach constitutional limits.") (internal quotation marks omitted).

For another t h i n g , implementation of the doctrine of constitutional avoidance also requires the presence of "substantial constitutional questions." X-Citement Video, 513 U.S. at 69. But there is no realistic danger that section 2422(b), as we have interpreted it, criminalizes p rotected speech. Speech intended deliberately to encourage minors' participation in criminal sexual conduct has no redeeming social value and surely can be outlawed under the same rationale that allows proscription of the provision of pornography to minors. See Ginsberg v. New York, 390 U.S. 629, 637-43 (1968). And where, as in this case, spe e c h i s the-16-

instrumentality of the crime itself, the First Amendment provides no shelter from the gov e r n m e nt's exercise of its otherwise valid police powers. See United States v. Tykarsky , 4 4 6 F.3d 458, 473 (3d Cir. 2006); Meek, 366 F.3d at 721; United States v. Rowlee, 899 F.2d 1275, 1278 (2d Cir. 1990); see also United States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004) ("Speech attempting to arrange the sexual abuse of children is no more constitutionally protected than speech attempting to arrange any other type of crime.").

As a fallback, the appellant argues that section 2422(b) is overbroad in light of the Internet-specific principles laid down by the Supreme Court in Reno v. ACLU, 521 U.S. 844 (1997). In our view, the Reno principles have little traction here.

The Reno Court struck down a section of the Communications Decency Act of 199 6 ( CDA) that criminalized the knowing transmission of "indecent" material to minors via the Internet. Id. at 859 (citing 47 U.S.C. § 223(a) (1994 ed., Supp. II)). It also struck down another section of the CDA that outlawed the act of knowingly making available to minors on the Internet materials which were, when measured by contemporary community standards, "patently offensive." Id. at 860 (citing 47 U.S.C. § 223(d) (1994 ed., Supp. II)). The Court anchored its decision on two bases: firs t , it concluded that the terms "indecent" and "patently offensive" were so vague as t o c hill protected speech. Id. at 874. Second, it concluded that the two sections of the CDA,-17-

in combination, prohibited an intolerably large amount of protected speech among adults. See id. at 874-79. Sta t e - o f -the-art technology, at that time, provided no effective means of excluding min o r s f rom adult-oriented Internet fora, see id. at 876-77, and therefore the provisions in question i n e v i tably would muffle substantial amounts of protected adult speech. See id. at 877-78.

The most crucial facet of t h e R e no scenario is missing here: this is a situation in which nothing but unprotected speech is e i t h e r threatened or chilled. There is no possibility that intruding minors might, by their me r e p r esence in an Internet forum, rend e r protected speech illegal. After all, legitimate inter-adult communications are not proscribed by section 2422(b). And if a protected communication falls outside the scope of section 2422(b) for some reason — perhaps the speaker does not believe his auditor to be a m i n or or the discussion does not comprise an attempt to entice a proscribed sex act — the mere introduction of a minor's presence will not bring the commu n i cation within that
scope. Thus, the heckler's veto emphasized by the Reno Court, id. at 880, does not emerge here.

T h e lack of any First Amendment infirmity confirms our decision to construe section 2422(b) in accordance with its unambiguous language. Section 2422(b) criminalizes an intentional attempt to achieve a mental state — a minor's assent — regardless-18-

o f t he accused's intentions vis-à-vis the actual consummation of sexual activities with the minor.

To say more about the statutory interpretatio n p o int

wou l d be supererogatory. The statute, construed without the exogenous "intent" element envisioned by the appellant, is within the bounds of Congre s s 's legislative power. The district court read and applied the statute accordingly. We therefore reject the appellant's attempt to reinvent the statute.

B. Sufficiency of the Evidence. Once the jury returned its verdict, the appellant renewed his motion fo r j u d gm ent of acquittal. See Fed. R. Crim. P. 29(c)(1). The district court denied the motion. The appellant demurs, arguing that the evidence did not support his convictions

on two of the three enticement counts, namely, count 2 (the Ashley interactions) and count 3 (the Maria interactions). Presumably because of the explicit planning of a trip by Paige to Boston for

mer i t r i c i o u s p u r p o s e s , t h e a p p e l l a n t d o e s n o t c h a l l e n g e t he sufficiency of the evidence on count 1.

The familiar standard that applies to sufficiency-of-theevidence challenges requires that a court "determine whether, after assaying all the evidence in the light most amiable to the government, and taking all re a s o n a ble inferences in its favor, a rational factfinder could find, beyond a reasonable doubt, that the prosecution successfully proved the essential elements o ftheIt is not necessary for us to decide, and we therefore leave 6 open, whether such an offense may be defined by federal law. -19- c r i m e . " United States v. O'Brien, 14 F.3d 703, 706 (1st Cir. 1994). We review a tri a l c ourt's Rule 29 determination de novo, applying this standard. See United States v. Moran, 312 F.3d 480, 487 (1st Cir. 2002).

The appellant's chall enge has its roots in the peculiariti e s of the statute of conviction. Section 2422(b) criminalizes the enticement of minors into "criminal offense[s]" of

a sexual nature, but the statute is silent as to which sovereign's law defines those offenses. The decided cases fill this gap; they indicate that such offenses may be defined by the laws of any of the several states. See, e.g., Goetzke, 494 F.3d at 1235 & n.2; 6 Patten, 397 F.3d at 1103-04; United States v. Panfil, 338 F.3d 1299, 1300 n.2 (11th Cir. 2003); see also United States v. Dhingra, 371 F.3d 557, 565 (9th Cir. 2004).

In this instance, the indictment accused the appellant of having sought to entice his targets to commit sexual acts rendered illegal by Massachusetts law. It specifically mentioned Mass. Gen. Laws ch. 265, § 23 (criminalizing engagement in sexual intercourse with a child under the age of 16), and Mass. Gen. Laws ch. 272, § 35A (criminalizing commission of an u n natural and lascivious act with a child under that age). Consequently, the district court instructed the jury that it could not find the appellant guilty on-20-

a particular count unless it found beyond a reasonable doubt that he attempted to entice the "minor" in question to perform unlawful sexual acts within Massachusetts. Given this instruction — which has become the law of the case, see United States v. Gomes, 969 F.2d 1290, 1294 (1st Cir. 1992) — the government concedes that, in order to sustain a conviction, the record must contain sufficient evidence of this Massachusetts nexus.

As to the challenged counts, the evidence supporting that nexus is not overwhelming. We briefly rehearse what the jury supportably could have found in that regard.

As to count 3, there was evidence that, on July 1, 2002, the appellant asked Maria to send him some of her lingerie. He stated that he would start a clothes drawer in his house for the underwear that Maria sent him, responded favorably to Maria's proposal that she move in with him (inferribly in Massachusetts), and declaimed that he "want[ed] [ M a r i a ] t o have our baby." The conversations then became salacious and sexually explicit. For example, the appellant told Maria that he was "horny," that his "penis [was] hard," and that he would engage in oral sex with her if they were together.

On July 3, 2002, the appellant (who was in Massachusetts) stated that he wanted Maria in his bed "now," mentioned that he had a teddy bear and satin sheets for his bed, and described how he would perform oral sex upon her. Then, on November 7, 2002, asThe fact that the appellant did not keep this p r o mise is 7 relevant, but that fact does not cancel out the invitation. -21- Maria repeatedly gave her eager assent, the appellant successively typed "I want you in my arms," "in my bed is t h a t ok?," "making l o v e a ll night?," and "do you want to make a video tape of us making love?"

As to count 2, the appellant's communications were less effusive but in much the same tenor. For instance, on October 10, 2002, Ashley mentioned her fear of the D.C. sniper and the appellant bade her to "come h e r e " — that is, to come to
Mass a c h usetts — and promised to send some travel money. The 7 appellant then typed that if "I sleep with you its rape" and noted his disinclination "to go to jail." This outburst of anxiety was calmed by Ashley's assurance that she would consent t o sex. The appellant then got down to basics: he queried her as to whether she wanted sex, wanted a "baby girl," and could "handle [his] sex drive." Ashley r e s ponded affirmatively each time. When the appellant pleaded for Ashley to stop "teas[ing]" him, she protested that she w a s n o t playing games and that she didn't "play with peoples heads." Apparently reassured, the appellant boasted that he had a $250,000 life insuran c e p o l i c yand told Ashley that if "you get pregnant you will get it."

In light of this and other evidence, we believe that reasonable jurors could conclude, as these j urors did, that the-22-

appellant sought to entice both Maria and Ashley into undertaking proscribed sexual acts w i t hin Massachusetts. In conversing with Maria, he referred to the prospect of sexual activity taking place in his own bed (and, thus, in Massachusetts) and followed up on a suggestion that Maria might move in with him by making explicit sexual overtures. Moreover, the appellant's descriptions of satin sheets and a dedicated clothes drawer arguably served as lures to entice his correspondent to come to Massachusetts. See, e.g., Goetzke, 494 F.3d at 1235; United States v. Munro , 3 9 4 F.3d 865, 869-70 (10th Cir. 2005). Given Maria's supposed age, it would not be a stretch for the jurors to find both that Massachusetts was the intended locus of the contemplated conduct a n dthat the conduct would have violated one or both of the aforementioned Massachusetts
statutes. By the same t o k e n, rational jurors easily could have found that the appellant's invitation to Ashley to come to Boston was meant literally and that this invitation, coupled as it was with comments of an overtly sexual nature, entailed con d u c t that was to occur in Massachusetts. Given Ashley's supposed age, the jurors could have found both that M a s s a c husetts was the intended locus of the contemplated conduct and that the conduct offended one or both of those statutes. That permissible inference is bolstered by the appellant's promise of a quarter-million-dollar life insurance policy should he impregnate her — an inducement that-23-

w o u l d serve as a very powerful enticement to a thirteen-year-old girl who lacked enough money even to t r avel to Boston.

This is not to say that such a verdict was compelled on either count. The appellant's chief defense — that he was merely role-playing and thought that t h e communications were mutually

e n t e r t a i n e d f a n t a s i e s , c o m f o r t a b l y r e m o t e f r o m a n y p r o s p ect of consummation — is plausible. Moreover, that defense was buttressed by the appellant's persiste n t d o dging of suggestions that he and his correspondents meet. But the government's theory of the case — that the appellant was engaged in earnest predation with persons he thought to be minors — also was plausible. That theory was reinforced by the appellant's own actions: his lewd comments, his parti c i p a tion in discussions about potential meetings, and his recurrent references to his home (which often were followed immediately by entreaties for sexual intercourse or o t h e r sexual favors). In the end, everything depended upon which set of inferences the jury chose to draw. Whe n t h e r e cord is fairly susceptible o f t wo competing scenarios, the choice between thosescenarios ordinarily is for the jury. See United States v. CruzArroyo, 461 F.3d 69, 74 (1st Cir. 2006); United States v. Fenton, 367 F.3d 14, 18 (1st Cir. 2004); s ee also United States v. Guerrero-Guerrero, 776 F.2d 1071, 1075 (1st Cir. 1985) (Breyer, J.) (explaining that jurors are "free to choose among varying-24-

interpretations of the evidence, as long as the interpretation they choose is reasonable").

In the last analysis, the test is whether the evidence, taken in its entirety, supports the judgment of conviction; if it does, "[the government] need not rule out other hypotheses m ore congenial to a finding of innocence." United States v. Gifford, 17 F.3d 462, 467 (1st Cir. 1994). This is such a case: taking all the evidence, direct and circumstantial, in the light most hospitable to the verdict and resolving all evidentiary conflicts in favor of the verdict, Carroll, 105 F.3d at 742, a reasonable jury could have found the evidence adequate to ground convictions on counts 2 and 3. III. CONCLUSION

We need go no further. After canvassing and rejecting a plenitude of arguments as to why we should read into section 2422(b) an exogenous element that Congress did not mention when it drafted the statute, we conclude that t h e statute requires a construction befitting its unvarnished language. With respect to scienter, the statute requires only that a defendant intend to entice a m i n o r to engage in proscribed sex acts — nothing more. Because this is so and because the government' s proof was

s u f f i c i e n t t o c o n v i c t , w e u p h o l dt h e j u d gm e n t o ft h e d istrict
court. Affirmed.