Filed: Oct. 22, 2007
Latest Update: Mar. 02, 2020
Summary: 06-4541-cr United States v. Gagliardi 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 August Term 2007 5 (Argued: September 4, 2007 Decided: October 22, 2007) 6 Docket No. 06-4541-cr 7 -x 8 UNITED STATES OF AMERICA, 9 10 Appellee, 11 12 - v. - 13 14 FRANK GAGLIARDI, 15 16 Defendant-Appellant. 17 18 -x 19 20 B e f o r e : WALKER, CALABRESI, and SACK, Circuit Judges. 21 Appeal by Defendant Frank Gagliardi from a judgment of 22 conviction of one count of attempt to entice a minor to e
Summary: 06-4541-cr United States v. Gagliardi 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 August Term 2007 5 (Argued: September 4, 2007 Decided: October 22, 2007) 6 Docket No. 06-4541-cr 7 -x 8 UNITED STATES OF AMERICA, 9 10 Appellee, 11 12 - v. - 13 14 FRANK GAGLIARDI, 15 16 Defendant-Appellant. 17 18 -x 19 20 B e f o r e : WALKER, CALABRESI, and SACK, Circuit Judges. 21 Appeal by Defendant Frank Gagliardi from a judgment of 22 conviction of one count of attempt to entice a minor to en..
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06-4541-cr
United States v. Gagliardi
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 August Term 2007
5 (Argued: September 4, 2007 Decided: October 22, 2007)
6 Docket No. 06-4541-cr
7 -----------------------------------------------------x
8 UNITED STATES OF AMERICA,
9
10 Appellee,
11
12 -- v. --
13
14 FRANK GAGLIARDI,
15
16 Defendant-Appellant.
17
18 -----------------------------------------------------x
19
20 B e f o r e : WALKER, CALABRESI, and SACK, Circuit Judges.
21 Appeal by Defendant Frank Gagliardi from a judgment of
22 conviction of one count of attempt to entice a minor to engage in
23 illegal sexual activity pursuant to 18 U.S.C. § 2422(b), entered
24 in the United States District Court for the Southern District of
25 New York (Sidney H. Stein, Judge). Because we find that §
26 2422(b) does not require the involvement of an actual minor and
27 that the statute is neither vague nor overbroad, the judgment is
28 AFFIRMED.
29 MICHAEL S. POLLOK, New York,
30 N.Y., for Defendant-Appellant.
31
32 MARGARET GARNETT, Assistant
33 United States Attorney, of
34 counsel, (Benjamin Gruenstein,
35 Assistant United States
-1-
1 Attorney, of counsel, on the
2 brief), for Michael J. Garcia,
3 United States Attorney for the
4 Southern District of New York,
5 New York, N.Y., for Appellee.
6 JOHN M. WALKER, JR., Circuit Judge:
7 Defendant-Appellant Frank Gagliardi appeals from his
8 conviction on one count of attempting to entice a minor to engage
9 in prohibited sexual activity in violation of 18 U.S.C. §
10 2422(b). He argues that § 2422(b) requires an actual minor
11 victim and is unconstitutionally vague and overbroad. In the
12 instant case, the targets of Gagliardi’s attempted enticement
13 were not actual minors but adults posing as minors. We now join
14 several other circuits in holding that 18 U.S.C. § 2422(b) does
15 not require that the enticement victim be an actual “individual
16 who has not attained the age of 18 years” and is neither
17 unconstitutionally vague nor overbroad. Because Gagliardi’s
18 other arguments challenging his conviction are without merit, we
19 affirm the judgment of conviction.
20 BACKGROUND
21 On July 7, 2005, Gagliardi, then sixty-two years old,
22 entered an Internet chat room called “I Love Older Men” and
23 initiated an instant-message conversation with “Lorie,” an adult
24 government informant posing as a thirteen-year-old girl under the
25 screen name “Teen2HoT4u.” The informant was a private citizen
26 who had previously assisted the Federal Bureau of Investigation
-2-
1 (“FBI”) in identifying child predators on the Internet. During
2 this initial conversation, Gagliardi tried to verify that Lorie
3 was in fact thirteen years old and broached the topic of sex.
4 Gagliardi contacted Lorie again on August 29, 2005 and had
5 the first of many online conversations in which he expressed his
6 desire to have sex with her and used sexually explicit language
7 to describe the acts he wished to perform with her. Gagliardi
8 even offered to pay Lorie $200 to have sex with him, before
9 telling her, “I want to meet you . . . make love to me anytime .
10 . . no strings attached.” In the following weeks, Gagliardi
11 repeatedly tried to convince Lorie to meet him in person, asking
12 her to “tell me where is good for you, I come to pick you up,” or
13 offering to meet her in a public place.
14 On September 1, 2005, Lorie indicated that she was “scared”
15 to meet Gagliardi alone and suggested that he contact her
16 thirteen-year-old friend Julie. “Julie” was in fact FBI Special
17 Agent Austin Berglas, who was working in collaboration with the
18 informant. Gagliardi suggested that the two girls come together
19 to meet him, telling Lorie, “I will dream about you 2 all night.”
20 On September 16, 2005, Gagliardi e-mailed Lorie a picture of
21 himself, and the informant sent him a photograph that was taken
22 of her when she was approximately thirteen.
23 Taking up Lorie’s suggestion, Gagliardi e-mailed Julie,
24 introducing himself as a friend of Lorie, asking for her picture,
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1 and requesting that she accompany Lorie if they ever set up a
2 meeting. On September 29, 2005, Gagliardi initiated an instant-
3 message chat with Julie during which he asked if she was willing
4 to meet him and described the sexual activities that they could
5 engage in.
6 Gagliardi subsequently arranged to meet Lorie and Julie in
7 lower Manhattan on the morning of October 5, 2005. FBI agents
8 placed the pre-arranged meeting place under surveillance and
9 arrested Gagliardi as he waited in his car. After being advised
10 of and agreeing to waive his Miranda rights, Gagliardi admitted
11 to the agents that he was at the location to meet two thirteen-
12 year-old girls with whom he had previously had sexually explicit
13 online conversations; he denied, however, that he intended to
14 have sex with them. During a post-arrest inventory search of
15 Gagliardi’s car, the agents found two condoms and a Viagra pill.
16 Gagliardi was charged with attempt to entice, induce, or persuade
17 a minor to engage in illegal sexual activity, in violation of 18
18 U.S.C. § 2422(b).
19 At trial, the government relied on the testimony of the
20 informant and Agent Berglas, together with Gagliardi’s electronic
21 communications with “Lorie” and “Julie.” Gagliardi moved to
22 dismiss the indictment on the grounds that: (1) the involvement
23 of an actual minor was a prerequisite to a conviction under 18
24 U.S.C. § 2422(b); (2) the statute was unconstitutionally vague;
-4-
1 and (3) the evidence was insufficient to show that Gagliardi had
2 committed an attempt.
3 The district court (Sidney H. Stein, Judge) denied the
4 motion. See United States v. Gagliardi, No. 05 CR 1265(SHS),
5 2006 WL 1459850 (S.D.N.Y. May 26, 2006). The district court
6 concluded that § 2422(b) did not require an actual minor victim
7 because the statute provided for criminal liability for attempted
8 enticement of a minor, and one could demonstrate that Gagliardi
9 had the intent and took a substantial step toward committing the
10 crime, as required for attempt liability, even though it was
11 factually impossible for him to commit the substantive offense.
12 See
id. at *2. It also concluded that the evidence at trial was,
13 in fact, sufficient to demonstrate the elements of intent and
14 substantial step. See
id. at *6. The district court further
15 determined that the statute was not unconstitutionally vague
16 because it was sufficiently definite to provide notice to an
17 ordinary person of what conduct was prohibited. See
id. at *3.
18 On May 16, 2006, Gagliardi was convicted by a jury and
19 sentenced to the mandatory minimum imprisonment term of sixty
20 months. The defendant moved to set aside the verdict on the
21 basis of government entrapment and insufficiency of evidence.
22 The district court denied the motion, reasoning that “[e]ven if
23 Gagliardi had adduced enough credible evidence of inducement that
24 no rational trier of fact could have concluded that the
-5-
1 government did not induce the crime, a rational juror could
2 nevertheless have rejected Gagliardi’s entrapment defense by
3 finding that he was predisposed to commit the crime.” United
4 States v. Gagliardi, No. 05 CR 1265(SHS), 2006 WL 2597895, at *2
5 (S.D.N.Y. Sept. 7, 2006). With respect to the sufficiency of the
6 evidence, the court found that based on Gagliardi’s numerous
7 sexually explicit communications with Lorie and Julie, his
8 exchange of photographs, and his arrival at the pre-arranged
9 meeting place with condoms and Viagra, a rational juror could
10 have concluded that Gagliardi had the requisite intent and took a
11 substantial step toward commission of the crime. See
id. at *2-
12 3. This appeal followed.
13 DISCUSSION
14 Gagliardi raises six issues on appeal. He contends that the
15 plain meaning of 18 U.S.C. § 2422(b) requires that the victim of
16 enticement or attempted enticement be an actual minor and that,
17 because the informant and Agent Berglas were adults posing as
18 minors, his conviction cannot stand; that § 2422(b) is
19 unconstitutionally vague and overbroad; that § 2422(b)’s
20 mandatory minimum sentence violates the separation of powers
21 doctrine or that its imposition in his case resulted from
22 prosecutorial sentencing manipulation; that reversal is required
23 because his conduct could only be construed as conspiring to
24 attempt to violate the law, an offense that is “legally
-6-
1 impossible” to commit when the co-conspirators are all government
2 decoys, Appellant’s Br. at 45; that the evidence at trial was
3 insufficient to support a conviction for attempted enticement or
4 to defeat his entrapment defense; and that the district court
5 erred in admitting into evidence e-mails and transcripts of his
6 instant message chats without sufficient authentication.
7 I. Involvement of an “Actual Minor”
8 Section 2422(b) of Title 18 imposes criminal liability on
9 anyone who “knowingly persuades, induces, entices, or coerces any
10 individual who has not attained the age of 18 years, to engage in
11 prostitution or any sexual activity for which any person can be
12 charged with a criminal offense, or attempts to do so.” 18
13 U.S.C. § 2422(b). Gagliardi argues that the statute’s plain
14 meaning and legislative history unambiguously indicate Congress’s
15 intent to criminalize such conduct only when directed toward an
16 actual minor.
17 To support his argument, Gagliardi points to Congress’s
18 rejection of a 1998 amendment to § 2422(b) that would have
19 expanded the statute to reach a defendant who subjectively
20 believed that the target of his enticement was a minor. Compare
21 H.R. Rep. No. 105-557, at 2 (1998), reprinted in 1998
22 U.S.C.C.A.N. 678, 678 (proposing an amendment that would extend
23 to one who “knowingly contacts an individual, who has been
24 represented to the person making the contact as not having
-7-
1 attained the age of 18 years”), with Protection of Children from
2 Sexual Predators Act of 1998, Pub. L. No. 105-314, § 102, 112
3 Stat. 2974, 2975-76 (amending § 2422(b) without this change). He
4 contends that in refusing to expand the statute in this manner,
5 Congress “made clear that 18 U.S.C. § 2422(b) only criminalizes
6 an attempt involving a minor.” Appellant’s Br. at 33-34.
7 Gagliardi also infers from a proposed 2005 amendment that
8 would “allow law enforcement officers to represent themselves as
9 minors on the Internet to better protect America’s children from
10 sexual predators,” 151 Cong. Rec. S9833 (daily ed. Sept. 8,
11 2005), that “Congress does not believe that 18 U.S.C. § 2422(b)
12 applies to undercover law enforcement officials or cooperating
13 witnesses representing themselves as being under the age of 18."
14 Appellant’s Br. at 35. He argues that such a proposal would be
15 unnecessary if the statute already applied to government decoys.
16 We disagree.
17 As an initial matter, we note that Gagliardi’s argument has
18 been squarely rejected by the six other circuits to have
19 considered the issue, and for sound reasons. See, e.g., United
20 States v. Hicks, 457 F.3d 838, 841 (8th Cir. 2006) (“[A]
21 defendant may be convicted of attempting to violate § 2422(b)
22 even if the attempt is made towards someone the defendant
23 believes is a minor but who is actually not a minor.”); United
24 States v. Tykarsky,
446 F.3d 458, 466 (3d Cir. 2006) (“Congress
-8-
1 did not intend to allow the use of an adult decoy, rather than an
2 actual minor, to be asserted as a defense to § 2422(b).”); see
3 also United States v. Sims, 428 F.3d 945, 960 (10th Cir. 2005);
4 United States v. Meek,
366 F.3d 705, 717-20 (9th Cir. 2004);
5 United States v. Root,
296 F.3d 1222, 1227-29 (11th Cir. 2002);
6 United States v. Farner,
251 F.3d 510, 513 (5th Cir. 2001).
7 In interpreting a statute, we look first to its text to
8 determine “‘whether the language at issue has a plain and
9 unambiguous meaning with regard to the particular dispute in the
10 case.’” In re Med Diversified, Inc.,
461 F.3d 251, 255 (2d Cir.
11 2006) (quoting Robinson v. Shell Oil Co.,
519 U.S. 337, 340
12 (1997)). Section 2422(b) explicitly proscribes attempts to
13 entice a minor, which suggests that actual success is not
14 required for a conviction and that a defendant may thus be found
15 guilty if he fails to entice an actual minor because the target
16 whom he believes to be underage is in fact an adult. See
17
Tykarsky, 446 F.3d at 467 (“The attempt provision is . . . most
18 naturally read to focus on the subjective intent of the
19 defendant, not the actual age of the victim.”);
Meek, 366 F.3d at
20 718.
21 In arguing that he could not have completed the intended
22 crime of enticement because extraneous circumstances unknown to
23 him rendered completion impossible, Gagliardi essentially asserts
24 a defense of factual impossibility. We have held, however, that
-9-
1 “factual impossibility is not a defense to a charge of attempt in
2 substantive criminal law.” United States v. Weisser, 417 F.3d
3 336, 352 (2d Cir. 2005).
4 Gagliardi’s two arguments from the statute’s legislative
5 history are similarly unpersuasive. Cf. United States v. Craft,
6
535 U.S. 274, 287 (2002) (“[F]ailed legislative proposals are ‘a
7 particularly dangerous ground on which to rest an interpretation
8 of a prior statute . . . .’” (quoting Pension Benefit Guar. Corp.
9 v. LTV Corp.,
496 U.S. 633, 650 (1990))). His proposed
10 interpretation of that history provides just one possible reading
11 of Congress’s intent. As to Gagliardi’s first argument, the fact
12 that Congress rejected a supplemental provision to § 2422(b) that
13 would have specifically covered individuals who represented
14 themselves as being minors is not conclusive evidence that
15 Congress meant to affirmatively exclude those individuals. It is
16 equally possible that Congress did not adopt the amendment
17 because it believed that the text of § 2422(b), expressly
18 proscribing the attempt, was sufficient to include victims
19 believed to be minors. See Pension Benefit Guar. Corp.,
496 U.S.
20 at 650 (“Congressional inaction lacks persuasive significance
21 because several equally tenable inferences may be drawn from such
22 inaction, including the inference that the existing legislation
23 already incorporated the offered change.” (internal quotation
24 marks omitted)).
-10-
1 As to Gagliardi’s second argument, the fact that two
2 legislators proposed a bill in 2005 to explicitly expand §
3 2422(b) is hardly dispositive of the intent of Congress as a
4 whole concerning the statute’s scope. Congress could have been
5 aware that several circuits had already interpreted § 2422(b) to
6 include adults posing as minors and found no need to amend the
7 statute. See Lorillard v. Pons, 434 U.S. 575, 580 (1978)
8 (“Congress is presumed to be aware of . . . [a] judicial
9 interpretation of a statute . . . .”); United States v.
10 Gagliardi, No. 05 CR 1265(SHS),
2006 WL 1459850, at *4 (S.D.N.Y.
11 May 26, 2006) (noting that Congress has failed to move forward on
12 the proposed legislation). Thus, Gagliardi’s arguments on this
13 score are unconvincing.
14 At the time of § 2422(b)’s 1998 amendment, the House
15 Judiciary Committee pointed out that
16 law enforcement plays an important role in discovering child
17 sex offenders on the Internet before they are able to
18 victimize an actual child. Those who believe they are
19 victimizing children, even if they come into contact with a
20 law enforcement officer who poses as a child, should be
21 punished just as if a real child were involved. It is for
22 this reason that several provisions in this Act prohibit
23 certain conduct involving minors and assumed minors.
24
25 H.R. Rep. No. 105-557, at 19. The interpretation advanced by
26 Gagliardi would effectively remove the “sting” from the
27 government’s sting operations, preventing undercover officers
28 from obtaining a conviction, or it would require them to use an
29 actual child as a decoy, which they would obviously be reluctant
-11-
1 to do. Cf. Tykarsky, 446 F.3d at 468 (“It is common knowledge
2 that law enforcement officials rely heavily on decoys and sting
3 operations in enforcing solicitation and child predation crimes
4 such as § 2422(b). We consider it unlikely that Congress
5 intended to prohibit this method of enforcement.”). Because such
6 a result would significantly impede legitimate enforcement of the
7 statute, and because the statute’s language is clear, we reject
8 Gagliardi’s interpretation and join the Third, Fifth, Eighth,
9 Ninth, Tenth, and Eleventh Circuits in holding that the
10 involvement of an actual minor is not a prerequisite to an
11 attempt conviction under § 2422(b).
12 II. Vagueness and Overbreadth
13 Gagliardi next argues that § 2422(b) is vague and overbroad
14 on its face and as applied. He contends that the statute is
15 unconstitutionally vague because it does not define the terms
16 “attempt,” “persuade,” “induce,” “entice,” or “coerce,” and
17 ordinary people could differ in their interpretation of the
18 meaning of these words. He contends that the statute is
19 overbroad because it suppresses protected speech by infringing on
20 the right of an adult “to freely engage in fantasy speech with
21 other adults.” Appellant’s Br. at 38. We reject both challenges
22 and now join the five other circuits that have already done so.
23 See, e.g.,
Tykarsky, 446 F.3d at 472-73; United States v. Thomas,
24
410 F.3d 1235, 1243-44 (10th Cir. 2005);
Meek, 366 F.3d at 722;
-12-
1 United States v. Panfil, 338 F.3d 1299, 1301 (11th Cir. 2003);
2 United States v. Bailey,
228 F.3d 637, 639 (6th Cir. 2000).
3 A penal statute is not void for vagueness if it defines the
4 offense (1) “with sufficient definiteness that ordinary people
5 can understand what conduct is prohibited” and (2) “in a manner
6 that does not encourage arbitrary and discriminatory
7 enforcement.” Kolender v. Lawson,
461 U.S. 352, 357 (1983); see
8 also Connally v. Gen. Constr. Co.,
269 U.S. 385, 391 (1926).
9 Section 2422(b) satisfies both of these requirements.
10 The words “attempt,” “persuade,” “induce,” “entice,” or
11 “coerce,” though not defined in the statute, are words of common
12 usage that have plain and ordinary meanings. See Tykarsky,
446
13 F.3d at 473;
Panfil, 338 F.3d at 1301. Although, as Gagliardi
14 argues, there may be some uncertainty as to the precise
15 demarcation between “persuading,” which is criminalized, and
16 “asking,” which is not, this uncertainty is not cause for
17 constitutional concern because the statute’s terms are
18 sufficiently definite that ordinary people using common sense
19 could grasp the nature of the prohibited conduct. See Tykarsky,
20 446 F.3d at 473; cf. United States v. Cullen,
499 F.3d 157, 163,
21 (2d Cir. 2007) (“Although we recognize in many English words
22 there lurk uncertainties, to meet the fair warning prong an ounce
23 of common sense is worth more than an 800-page dictionary.”
24 (citation omitted)).
-13-
1 The statute also establishes the requisite minimal
2 guidelines to prevent arbitrary or discriminatory enforcement,
3 see Kolender, 461 U.S. at 358, in that it applies only to those
4 who “knowingly” engage in the prohibited conduct. This scienter
5 requirement narrows the scope of § 2422(b) as well as the ability
6 of prosecutors and law enforcement officers to act based on their
7 own preferences. See
Panfil, 338 F.3d at 1301.
8 We likewise reject Gagliardi’s overbreadth argument. “The
9 overbreadth doctrine prohibits the Government from banning
10 unprotected speech if a substantial amount of protected speech is
11 prohibited or chilled in the process.” Ashcroft v. Free Speech
12 Coal.,
535 U.S. 234, 255 (2002). Gagliardi contends that §
13 2422(b) impermissibly suppresses fantasy speech with adults who
14 happen to be posing as minors. Yet the statute punishes the act
15 of enticing or attempting to entice a minor when it is knowingly
16 done; it does not implicate speech. Moreover, when fantasy
17 speech is directed toward an adult believed to be a minor, it is,
18 in effect, the vehicle through which a pedophile attempts to
19 ensnare a victim, cf.
Meek, 366 F.3d at 721, and we have held,
20 unremarkably, that “‘[s]peech is not protected by the First
21 Amendment when it is the very vehicle of the crime itself,’”
22 United States v. Rowlee,
899 F.2d 1275, 1278 (2d Cir. 1990)
23 (citation omitted); see also Giboney v. Empire Storage & Ice Co.,
24
336 U.S. 490, 498 (1949) (“It rarely has been suggested that the
-14-
1 constitutional freedom for speech and press extends its immunity
2 to speech or writing used as an integral part of conduct in
3 violation of a valid criminal statute.”). By Gagliardi’s own
4 admission in his brief, “there is no First Amendment right to
5 persuade minors to engage in illegal sex acts,” Appellant’s Br.
6 at 38; see also Tykarsky, 446 F.3d at 473; there is likewise no
7 First Amendment right to persuade one whom the accused believes
8 to be a minor to engage in criminal sexual conduct.
9 Because no protected speech would be chilled by § 2422(b),
10 and because the statute’s terms are sufficiently unambiguous, we
11 conclude that § 2422(b) is not unconstitutionally vague or
12 overbroad.
13 III. Gagliardi’s Remaining Challenges
14 A. Separation of Powers and Sentencing Manipulation
15 Gagliardi contends that § 2422(b) is unconstitutional as
16 applied to him because its application violated the separation of
17 powers doctrine, and that his conviction should therefore be
18 reversed. Specifically, Gagliardi argues that because the
19 offense carries a mandatory minimum sentence, the prosecutor’s
20 charging discretion has sentencing implications and thus
21 constitutes executive interference with a judicial function. In
22 addition, he claims that the imposition of the mandatory minimum
23 sentence was the result of sentencing manipulation, in that the
24 government deliberately selected the age of thirteen for its
-15-
1 decoys to maximize the probability of conviction, and asks us to
2 remand for resentencing. Both of these arguments are without
3 merit. First, the executive branch’s discretion to charge an
4 offense that carries a mandatory minimum does not result in
5 executive aggrandizement at the expense of the judiciary. See
6 United States v. Jimenez, 451 F.3d 97, 102 (2d Cir. 2006) (per
7 curiam) (“[M]andatory minimums have taken on increased
8 significance after Booker -- in that they remain binding on the
9 district courts and work to restrain their newly acquired
10 discretion . . . .”).
11 Second, this Court has not yet recognized the doctrine of
12 sentencing manipulation, which occurs “‘when the government
13 engages in improper conduct that has the effect of increasing the
14 defendant’s sentence.’” United States v. Gomez,
103 F.3d 249,
15 256 (2d Cir. 1997) (quoting United States v. Okey,
47 F.3d 238,
16 240 (7th Cir. 1995)). It has, however, suggested that if a
17 departure based on sentencing manipulation were valid, “it would
18 likely require a showing of ‘outrageous’ government conduct,”
19 United States v. Bala,
236 F.3d 87, 93 (2d Cir. 2000). Even if
20 we were to assume that sentencing manipulation is a valid
21 departure ground, Gagliardi has not made the requisite showing in
22 this case. There is nothing outrageous about the government’s
23 decision to have its decoys present themselves as age thirteen,
24 rather than fourteen or sixteen.
-16-
1 B. Conspiracy
2 Gagliardi next asks us to reverse his conviction because his
3 conduct could only be properly construed as a conspiracy to
4 attempt to violate § 2422(b), and finding such a conspiracy is
5 legally impossible in this case because the requisite criminal
6 agreement is absent when both co-conspirators are government
7 decoys. See United States v. Andrades, 169 F.3d 131, 135 (2d
8 Cir. 1999). He contends that it was improper for the government,
9 knowing that it could not obtain a conviction for conspiracy, to
10 charge him with attempt instead. This argument is frivolous on
11 its face. There is no requirement that the government charge a
12 defendant with a crime that he did not commit instead of or in
13 addition to one that he did commit. See United States v. Bonnet-
14 Grullon,
212 F.3d 692, 701 (2d Cir. 2000), superseded by statute
15 on other grounds, Prosecutorial Remedies and Other Tools To End
16 the Exploitation of Children Today (PROTECT) Act of 2003, Pub. L.
17 No. 108-21, 117 Stat. 650, as recognized in United States v.
18 Leiva-Deras,
359 F.3d 183 (2d Cir. 2004) (“It is well established
19 that the decision as to what federal charges to bring against any
20 given suspect is within the province of the Executive Branch of
21 the government.”).
22 Gagliardi further contends that the district court erred in
23 failing to “instruct[] the jury on conspiracy as a lesser
24 included (and legally impossible) offense.” Appellant’s Br. at
-17-
1 51. Putting aside the fact that there is no evidence in the
2 record that Gagliardi even requested such an instruction at
3 trial, this argument fails because conspiracy to attempt a crime
4 is not a lesser included offense of attempt. We have stated
5 that, “for an uncharged offense to be ‘included,’ all of its
6 elements must also be elements of the offense charged.” United
7 States v. Giampino, 680 F.2d 898, 901 (2d Cir. 1982). Gagliardi
8 admits in his own brief that “‘[a]n attempt requires but one
9 person for the offense; a conspiracy requires at least two. A
10 conspiracy also requires an agreement; an attempt does not.’”
11 Appellant’s Br. at 52 (quoting United States v. Madonna,
582 F.2d
12 704, 705 (2d Cir. 1978) (per curiam)). Thus, the district court
13 did not err in failing to give the jury a lesser included offense
14 charge.
15 C. Sufficiency Challenges
16 1. Entrapment
17 The first of Gagliardi’s two attacks on the sufficiency of
18 the evidence pertains to the entrapment defense, under which a
19 defendant must first prove government inducement by a
20 preponderance of the evidence. The burden then shifts to the
21 government to show that the defendant was predisposed to commit
22 the crime beyond a reasonable doubt. See United States v. Brand,
23
467 F.3d 179, 189 (2d Cir. 2006), cert. denied,
127 S. Ct. 2150
24 (2007). Gagliardi argues that the evidence was insufficient to
-18-
1 prove predisposition because he had no history of engaging in the
2 illegal conduct.
3 “A defendant challenging the sufficiency of trial evidence
4 ‘bears a heavy burden,’ and the reviewing court must ‘view the
5 evidence presented in the light most favorable to the
6 government’” and draw all reasonable inferences in the
7 government’s favor. United States v. Giovannelli, 464 F.3d 346,
8 349 (2d Cir. 2006) (per curiam) (citation omitted), cert. denied,
9 --- S. Ct. ----,
76 U.S.L.W. 3009 (2007). The jury’s verdict
10 will be affirmed unless “‘no rational trier of fact could have
11 found all of the elements of the crime beyond a reasonable
12 doubt.’”
Id. (quoting United States v. Schwarz,
283 F.3d 76, 105
13 (2d Cir. 2002)).
14 Viewing the evidence in the light most favorable to the
15 government, Gagliardi’s sufficiency challenge fails. A rational
16 trier of fact could have found beyond a reasonable doubt that
17 Gagliardi was predisposed to commit the offense. Predisposition
18 can be shown by evidence of a pre-existing design to commit the
19 crime or a ready response to the inducement. See United States v.
20 Salerno,
66 F.3d 544, 547 (2d Cir. 1995). Here, the defendant
21 chose to enter a chat room conspicuously labeled “I Love Older
22 Men,” contacted Lorie without solicitation after discovering from
23 her online profile that she was thirteen, offered to pay Lorie to
24 have sex with him after just one conversation, vividly described
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1 the sexual acts he wished to perform with her, and attempted on
2 numerous occasions to set up a meeting with her. Thus, even if
3 Gagliardi could establish government inducement, and even if he
4 had never before exhibited pedophilic tendencies, there was
5 sufficient evidence for a reasonable juror to conclude that he
6 stood ready and willing to violate § 2422(b). See Brand, 467
7 F.3d at 189-95 (discussing similar factual circumstances and
8 finding the evidence sufficient to establish predisposition).
9 2. Criminal Attempt
10 Gagliardi’s second attack on the sufficiency of trial
11 evidence pertains to the elements required for an attempt
12 conviction. To establish attempt, the government must prove that
13 a defendant had the intent to commit the underlying crime and
14 that he took a substantial step toward its completion. See,
15 e.g.,
id. at 202. Gagliardi contends that the government failed
16 to prove both of these elements beyond a reasonable doubt. This
17 argument is meritless.
18 In United States v. Brand, in answering a similar
19 sufficiency challenge, we discussed several facts supporting a
20 finding that the defendant attempted to entice a minor to engage
21 in sexual activity. See
id. We noted that intent was shown by
22 the fact that the defendant initiated contact with the two
23 victims in a chat room suggestively entitled “I Love Older Men,”
24 that he repeatedly made sexual advances toward both girls and
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1 asked for their pictures, that he continuously steered the
2 conversation in the direction of sexual contact and described the
3 sexual acts that he would engage in with them, and that he
4 repeatedly attempted to set up a meeting with one of them. See
5 id. at 202-04. Finally, we found that the defendant took a
6 substantial step toward the completion of the crime because he
7 actually went to the designated meeting place with condoms in the
8 glove compartment of his car. See
id. at 204.
9 The same facts are present here. Gagliardi initiated
10 contact with Lorie in the same chat room as in Brand, repeatedly
11 made sexual advances toward Lorie and Julie, asked them for their
12 pictures, steered the conversation toward sexual activities,
13 described the acts that he would engage in with them, tried to
14 set up a meeting with both of them, and appeared for a meeting
15 with condoms and a Viagra pill in his car. This evidence was
16 easily sufficient for a reasonable juror to have found beyond a
17 reasonable doubt that Gagliardi had the requisite intent to
18 violate § 2422(b). A reasonable juror could also have found that
19 Gagliardi took a substantial step beyond mere preparation when he
20 arrived at the meeting place with two condoms and a Viagra pill
21 in his car. See also United States v. Munro,
394 F.3d 865, 870
22 (10th Cir. 2005). In light of this conclusion, there is no need
23 for us to reach the government’s argument that because the
24 conviction was for attempt to entice rather than attempt to
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1 engage in a prohibited sexual act, the substantial step occurred
2 well before Gagliardi appeared at the designated meeting place,
3 when he repeatedly solicited Lorie and Julie over the Internet.
4 D. Authentication of Documents
5 Gagliardi’s final claim is that the e-mails and transcripts
6 of instant-message chats offered by the government were not
7 properly authenticated. He argues that because the documents
8 were largely cut from his electronic communications and then
9 pasted into word processing files, they were not originals and
10 could have been subject to editing by the government. Gagliardi
11 contends that the communications could even have been completely
12 fabricated. Due to these “highly suspicious” circumstances,
13 Appellant’s Br. at 72, Gagliardi submits that the government
14 failed to establish authenticity and the trial court therefore
15 erred in admitting the evidence. We disagree.
16 We review a district court’s evidentiary rulings for abuse
17 of discretion. Reilly v. Natwest Mkts. Group Inc., 181 F.3d 253,
18 266 (2d Cir. 1999). The bar for authentication of evidence is
19 not particularly high. United States v. Dhinsa,
243 F.3d 635,
20 658 (2d Cir. 2001). “The requirement of authentication . . . is
21 satisfied by evidence sufficient to support a finding that the
22 matter in question is what its proponent claims.” Fed. R. Evid.
23 901(a). Generally, a document is properly authenticated if a
24 reasonable juror could find in favor of authenticity. United
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1 States v. Tin Yat Chin, 371 F.3d 31, 38 (2d Cir. 2004). The
2 proponent need not “rule out all possibilities inconsistent with
3 authenticity, or to prove beyond any doubt that the evidence is
4 what it purports to be.” United States v. Pluta,
176 F.3d 43, 49
5 (2d Cir. 1999) (internal quotation marks and citation omitted).
6 We have stated that the standard for authentication is one
7 of “reasonable likelihood,”
id. (internal quotation marks and
8 citation omitted), and is “minimal,” Tin Yat
Chin, 371 F.3d at
9 38. The testimony of a witness with knowledge that a matter is
10 what it is claimed to be is sufficient to satisfy this standard.
11 See Fed. R. Evid. 901(b)(1). In this case, both the informant
12 and Agent Berglas testified that the exhibits were in fact
13 accurate records of Gagliardi’s conversations with Lorie and
14 Julie. Based on their testimony, a reasonable juror could have
15 found that the exhibits did represent those conversations,
16 notwithstanding that the e-mails and online chats were editable.
17 The district court did not abuse its discretion in admitting the
18 documents into evidence.
19 CONCLUSION
20 For the foregoing reasons, the judgment of conviction is
21 AFFIRMED.
22
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