[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS. Hon. Patti B. Saris, U.S. District Judge.
Garrity for appellant.
E. Kromm, Assistant United States Attorney, with whom Carmen
M. Ortiz, United States Attorney, was on brief, for appellee.
Kayatta, Stahl, and Barron, Circuit Judges.
Dunfee confessed not once, but twice, to allegations that he
engaged in conduct sufficient to support convictions for the
coercion and enticement of a minor, and the sexual
exploitation of a child. The first of these confessions came
at the time of Dunfee's arrest, and the second came
during a change-of-plea hearing before the district court, at
which Dunfee pled guilty to the charges against him. Later,
Dunfee filed two motions seeking to withdraw his guilty plea.
The district court denied these motions and sentenced Dunfee
to a twenty-year term of imprisonment. Dunfee now appeals
from the denial of his motions to withdraw his plea, as well
as from his sentence, which he challenges as procedurally and
substantively unreasonable. We AFFIRM.
Facts and Background
The Offense Conduct
2010, Dunfee created a fictitious Facebook page for a
photography studio by the name of Hunt Photography. Using the
equally fictitious pseudonym, " John," Dunfee held
himself out as a Hunt employee and, in September 2011, began
communicating online with an adult female, A.L., a resident
of Massachusetts. A.L. was interested in working as a model.
Believing that Hunt Photography was a legitimate enterprise
and that John was its legitimate employee, A.L. agreed to
take part in an " audition" with John via a webcam,
during which she exposed intimate parts of her body.
had a ten-year-old daughter, R.L. On October 4, 2011, Dunfee
again contacted A.L. This time, again acting as John, Dunfee
offered A.L. $20,000 for a " mother-daughter bikini
modeling contract." To secure the contract, Dunfee
explained, A.L. and R.L. would need to audition.
the course of a Skype call that afternoon, at Dunfee's
direction, A.L. posed R.L. in front of the webcam wearing a
bra and panties. Again at Dunfee's direction, A.L.
manipulated R.L.'s underwear, then agreed to shave
R.L.'s pubic area. A.L. then returned R.L. to the webcam
fully nude and, following Dunfee's instructions,
displayed R.L.'s genitalia, ostensibly so that Dunfee
could determine if R.L. was a suitable " model."
R.L. became so upset that she refused to continue and A.L.
terminated the Skype call. A.L. then discussed the incident
with her sister, who promptly reported it to police.
his IP address, law enforcement officers tracked Dunfee's
communications to his residence, located in Oxford Junction,
Iowa. On November 3, 2011, officers
with the United States Postal Inspection Service ("
USPIS" ) executed a search warrant at the premises.
After waiving his Miranda rights, Dunfee gave a full
confession to USPIS Inspector Scott Kelley, describing in
detail his creation of the Hunt Photography Facebook page and
his role posing as John, and confirming that he had directed
A.L. to shave and display R.L.'s genitalia. Dunfee
admitted to Inspector Kelley that although he was unsure of
R.L.'s exact age, he " guessed she was around
15." Dunfee was placed under arrest and was transferred
to the District of Massachusetts.
of their search of Dunfee's residence, officers seized a
number of computers, later examination of which revealed a
wealth of incriminating evidence. For example, officers
discovered records of the communications between Dunfee and
A.L., as well as hundreds of sexually provocative pictures
and videos of young girls.
Pretrial Proceedings and Dunfee's Guilty Plea
November 29, 2011, Dunfee appeared for a hearing before a
magistrate judge. Concluding that he posed a danger if
released, the magistrate ordered Dunfee detained prior to
trial. Dunfee was subsequently indicted on charges of
sexually exploiting a child, in violation of 18 U.S.C. §
2251(a) and (e), and coercing and enticing a minor, in
violation of 18 U.S.C. § 2422(b).
March 2012, at Dunfee's request, the magistrate judge
dismissed Dunfee's appointed federal defender, and
appointed Attorney John Salsberg, an experienced member of
the criminal defense bar, to represent him. Later,
following the district court's approval of further funds,
Attorney Salsberg was joined by an associate, resulting in
Dunfee having two lawyers representing him for a significant
portion of the pretrial proceedings.
2012, Dunfee moved for reconsideration of the magistrate
judge's pretrial detention order. The magistrate judge
held a two-day hearing, at which Dunfee offered the testimony
of his wife, Barbara Dunfee; his mother-in-law, Terry
Sherman; and his sister-in-law, Ashley Hubbard. Through this
testimony, Dunfee sought to establish an alibi to prove that
he was not at home on October 4, 2011, when he was alleged to
have contacted A.L. and R.L. For example, Barbara and Ashley
testified that they were with Dunfee for portions of the day,
and Terry testified that she recalled seeing Dunfee and
Ashley driving together that afternoon.
alibi defense was subsequently undermined in a number of key
respects. For example, on cross-examination, Ashley
(Dunfee's sister-in-law) admitted that she had previously
had a sexual relationship with Dunfee and that she was aware
Dunfee had used the Hunt Photography Facebook account. During
her cross-examination, Terry (Dunfee's mother-in-law)
conceded that she was unsure whether she had seen Ashley and
Dunfee together on October 4, or some other date. What is
more, while Ashley claimed that she and Dunfee had gone
together to two restaurants on October 4, 2011, credit card
records later established that they had in fact
visited those locations on the previous day, October 3.
magistrate judge expressed his skepticism of the alibi
defense at the hearing, observing that the testimony "
simply doesn't persuade me, period." Later, the
magistrate judge issued a written order denying Dunfee's
motion to reconsider, in which he described the alibi defense
as " incredible and unpersuasive."
September 19, 2013, Dunfee filed a motion to suppress the
confession he had offered to USPIS Inspector Kelley, claiming
that Kelley had misled and coerced him into waiving his
Miranda rights. During a series of ensuing hearings, the
district court heard testimony from Dunfee, Inspector Kelley,
and another USPIS inspector who had witnessed Dunfee's
receipt and acknowledgement of a Miranda waiver. In a written
decision, the district court denied Dunfee's motion to
suppress, finding that Inspector Kelley " did not
coerce, intimidate, or otherwise deceive" Dunfee, and
that Dunfee's " credibility was undermined by his
clearly false testimony." United States v.
Dunfee, No. 12-CR-10024-PBS, 2013 WL 6488710, at *4 (D.
Mass. Dec. 9, 2013).
proceedings continued through the end of 2013 and into 2014.
The trial was repeatedly delayed as Dunfee hired a series of
forensics experts (with court-approved funds) to assess his
computer and the records of his online activities. Finally, a
trial date was set for March 31, 2014. On the morning trial
was to begin, however, Dunfee informed the district court
that he intended to plead guilty to both of the charges
against him. During a lengthy colloquy that followed, Dunfee
assured the district court that he was fit to enter a guilty
plea, that he had carefully reviewed the indictment with his
attorneys, and that he was satisfied with the quality of the
representation he had received. The government then offered a
summary of the allegations it would have proven at trial,
focusing specifically on Dunfee's use, on October 4,
2011, of the Hunt Photography Facebook page to induce A.L.
and R.L. This led to the following exchange:
The Court: Do you disagree with [the government's
description of the offense conduct]?
The Court: All right, were you the person who was pretending
to be Hunt Photography ...