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United States v. Dunfee

United States Court of Appeals, First Circuit

May 2, 2016

UNITED STATES OF AMERICA, Appellee,
v.
JOSHUA DUNFEE, Defendant, Appellant

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

         Paul J. Garrity for appellant.

         Randall E. Kromm, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

         Before Kayatta, Stahl, and Barron, Circuit Judges.

          OPINION

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          PER CURIAM.

          Joshua 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.

         I. Facts and Background

         A. The Offense Conduct

         In 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.

         A.L. 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.

         During 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.

         Using his IP address, law enforcement officers tracked Dunfee's communications to his residence, located in Oxford Junction, Iowa. On November 3, 2011, officers

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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.

         As part 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.[1]

         B. Pretrial Proceedings and Dunfee's Guilty Plea

         On 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).

         In 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.[2] 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.

         In May 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.

         This 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

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visited those locations on the previous day, October 3.

         The 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."

         On 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).

         Pretrial 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]?
Dunfee: No.
The Court: All right, were you the person who was pretending to be Hunt Photography ...

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