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Summary: 06-5911-cr U.S.A.. v. Joseph UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2007 Heard: May 13, 2008 Decided: September 9, 2008 Docket No. 06-5911-cr - - - - - - - - - - - - - - - UNITED STATES OF AMERICA, Appellee, v. DENNIS JOSEPH, Defendant-Appellant. - - - - - - - - - - - - - - - Before: NEWMAN, WALKER, and SOTOMAYOR, Circuit Judges. Appeal from the December 21, 2006, judgment of the United States District Court for the Southern District of New York (Richard Owen, District
Summary: 06-5911-cr U.S.A.. v. Joseph UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2007 Heard: May 13, 2008 Decided: September 9, 2008 Docket No. 06-5911-cr - - - - - - - - - - - - - - - UNITED STATES OF AMERICA, Appellee, v. DENNIS JOSEPH, Defendant-Appellant. - - - - - - - - - - - - - - - Before: NEWMAN, WALKER, and SOTOMAYOR, Circuit Judges. Appeal from the December 21, 2006, judgment of the United States District Court for the Southern District of New York (Richard Owen, District ..
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06-5911-cr
U.S.A.. v. Joseph
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2007
Heard: May 13, 2008 Decided: September 9, 2008
Docket No. 06-5911-cr
- - - - - - - - - - - - - - -
UNITED STATES OF AMERICA,
Appellee,
v.
DENNIS JOSEPH,
Defendant-Appellant.
- - - - - - - - - - - - - - -
Before: NEWMAN, WALKER, and SOTOMAYOR, Circuit Judges.
Appeal from the December 21, 2006, judgment of the United States
District Court for the Southern District of New York (Richard Owen,
District Judge), sentencing the defendant to a term of 97 months for
violating 18 U.S.C. § 2422(b). Defendant contends primarily that the
jury charge permitted conviction on an invalid alternate basis.
Conviction vacated and case remanded for a new trial. Judge
Walker dissents with a separate opinion.
Nathaniel Z. Marmur, New York, N.Y. (Paul
Shechtman, Stillman, Friedman & Shecht-
man, P.C., New York, N.Y., on the
brief), for Defendant-Appellant.
Maria E. Douvas, Asst. U.S. Atty., New
York, N.Y. (Michael J. Garcia, U.S.
Atty., Anjan Sahni, Diane Gujarati,
Asst. U.S. Attys., New York, N.Y., on
the brief), for Appellee.
JON O. NEWMAN, Circuit Judge:
This criminal appeal primarily concerns a claim that a jury
charge permitted conviction on an invalid alternate basis. Defendant-
Appellant Dennis Joseph appeals from the December 21, 2006, judgment
of the District Court for the Southern District of New York (Richard
Owen, District Judge) sentencing him to 97 months after a jury found
him guilty of using his computer to send messages on the Internet to
entice an individual he believed to be an underaged girl to engage in
unlawful criminal sexual activity, in violation of 18 U.S.C. §
2422(b). On appeal, Joseph contends that he did not receive a fair
trial for several reasons, including denial of an expert witness,
denial of an opportunity to rebut prosecution evidence, and an
erroneous jury charge. We conclude, primarily because of significant
error in the jury charge, that a new trial is required.
Background
Joseph is 40 years old, married, and has a six-year-old child.
In August 2005, he was arrested for using the Internet to solicit a
person he believed to be a minor to engage in sexual activity, in
violation of 18 U.S.C. § 2422(b). After a seven-day trial in April
2006, a mistrial was declared when the jury was unable to reach a
verdict.
-2-
The evidence at the retrial included the following. In July
2005, Joseph visited an Internet chat room called “I Love Older Men,”
where he initiated a conversation with an individual with the screen
name1 “Teen2Hot4U,” who purported to be a 13-year-old girl named
“Lorie.” “Teen2Hot4U” was in fact Stephanie Good, a 55-year-old woman
who spends 20 to 50 hours a week surfing the Internet for those she
believes to be sexual predators and reporting her finds to the FBI.
See United States v. Brand, 467 F.3d 179, 183 (2d Cir. 2006)
(reporting Ms. Good’s Internet chat-room conversations using the
screen name “Sara”).
Using the screen name “DSax25” and describing himself as a 40-
year-old professional musician, Joseph had approximately 50 instant
message and email chats with Good, almost all of which he initiated.
Most of the conversations were explicitly sexual and mentioned sexual
acts that Joseph stated he would perform with “Lorie.” In one
conversation Joseph mentioned he would be interested in meeting
“Lorie” and asked, “[L]et’s just say...hypothetically.....where would
1
“A screen name is an appellation used to identify oneself in a
chat room or when sending instant messages to another computer user.
Although it can be the user’s real name, it is more often a
pseudonym.” United States v. Mitchell, 353 F.3d 552, 554 n.3 (7th Cir.
2003).
-3-
you want to meet?” “Lorie” sent Joseph a picture, depicting Good at
age 13 or 14 years.
In a subsequent message, “Lorie” referred to her friend “Julie,”
who was in fact FBI agent Austin Berglas posing as a 13-year-old girl.
See Brand, 467 F.3d at 183 (reporting Berglas posing as “Julie”).
Joseph asked for a picture of “Julie” and suggested that “Lorie” give
“Julie” his email address. “Lorie” later provided Joseph with
“Julie’s” screen name. Joseph then began exchanging messages with
“Julie,” describing sexual acts he wanted to perform with her.
On August 25, 2005, Joseph initiated contact and told “Julie”
that he wanted to see her and “Lorie.” On August 30, he again
contacted her and described sexual activity the two might enjoy. That
same day he emailed “Julie,” indicating that he planned to be at
Franklin Street in Manhattan the following day and asked “Julie” to
let him know if that date worked for her. The two exchanged various
emails coordinating the meeting the next day. On August 31, Joseph
sent his final message to “Julie,“ and they agreed to meet outside the
Franklin Street Station Café. “Julie” asked if he was “really gonna
be there” because she did not “wanna be standing there waiting,” and
Joseph replied, “I can’t promise anything cause I’m still nervous and
I don’t know how I will actually feel when I see you. Is that Okay?”
The remainder of the conversation, as reported by Berglas during his
testimony, was as follows:
-4-
[“Julie”]: No.
[Joseph]: Not okay?
[“Julie”]: You may not show up?
[Joseph]: I promise I will show up. I promise.
[“Julie”]: So what do you mean? You may not like me?
. . .
[Joseph]: I just may have a problem because I am so much older
than you
[“Julie”]: Oh
[Joseph]: But I will definitely be there and we can see then.
Okay?
Later that morning, Joseph showed up at the café, which was under
surveillance, and was promptly arrested while looking into the window.
He was not carrying a condom or a lubricant. Cf. Brand, 467 F.3d at
186 (Internet enticement defendant arrested with three condoms in
glove compartment of his car).
After his arrest, Joseph was advised of his rights and spoke with
the arresting agents. He told Berglas that he came downtown “to meet
a . . . girl that he had met while chatting on the [I]nternet.”
Joseph stated that “you really don’t know the actual age of people you
talk to on the [I]nternet,” but indicated that he believed “Julie” was
13 years old at the time he showed up at the café. Id. Joseph stated
he had no intention of having sex with “Julie” but wanted to warn her
that “talking to older men on the internet about having sex was
-5-
dangerous.”
The defense sought to portray Joseph as an individual with a
proclivity for muscular women who never knowingly communicated with a
minor over the Internet and primarily used the Internet for role-
playing purposes. His wife, Yana, testified about Joseph’s interest
in muscular woman and his Internet addiction to sexual fantasy role-
play. On cross-examination, Yana testified that her husband was a
member of an Internet group called “Muscleteens,” which, according to
her, solicits pictures of muscular girls between the ages of five and
twenty.
Joseph testified on his own behalf. He explained that “DSax25”
was “an idealized version of what . . . Dennis Joseph can’t do but can
on the [I]nternet.” He testified that the he browsed the Internet
looking for female bodybuilders. He introduced 25 profiles of the
people on his buddy list,2 21 of whom were adult female bodybuilders.
Joseph stated that when he encountered “Lorie” in what he
believed was an “adult sex theme[d]” chat-room, he was convinced that
she was an adult posing as a teenager. He claimed that her
familiarity with sexual terminology convinced him that she was part of
a “make-believe, pretend world.” When “Lorie” offered to introduce
2
A buddy list is a list of an instant messenger’s “friends,” and
shows a user which of his buddies are online when he is.
-6-
him to “Julie,” he played along. Joseph believed “Julie” was also a
sexually experienced adult engaged in role-playing. Joseph testified
that his belief was confirmed when “Julie” sent him a picture of
herself with long nails because he found it difficult to believe that
someone with long nails would be a gymnast. The Government had
earlier presented a witness who testified that, as a teenager, she had
done gymnastics with long fingernails.
Joseph also testified that after arranging the meeting with
“Julie,” he worried that he might have misjudged the situation.
Julie’s angry tone when he couldn’t “promise anything” made him think
that she might, in fact, be a teenage girl. Joseph claimed that he
thought to himself “what am I going to do if [she] actually is a
minor” and that he decided that if she was in fact a minor he was
going to take her into the café, sit down, eat lunch, and explain to
her that he was pretending because he thought she was an adult and
that he was way too old to be involved with her.
On cross-examination the Government asked Joseph about his
participation in the “Muscleteens” group, which his wife had mentioned
during her cross-examination. Joseph admitted joining the site, which
describes itself as a group encouraging users to post pictures of
girls “between 5 and 18” showing off their muscles. He claimed that
when he joined there was a picture on the front cover of a bodybuilder
who was 19 or 20, and that he did not recall seeing pictures of
-7-
younger girls. He also stated that the few times he looked at the
site, the pictures had changed, and that each time they were
“predominately 19, 20, 21 and maybe 18-year-old bodybuilders.” Joseph
claimed that he stopped visiting the site when “it started to change.”
On rebuttal, the Government called Special Agent Sean Watson of
the FBI who testified that in June, 2006, shortly before Joseph’s
trial, Watson had joined the Muscleteens group in an undercover
capacity and had viewed all of the pictures posted in that group
before August 31, 2005, the date of Joseph’s arrest. Over a defense
objection, the prosecution was permitted to introduce pictures of
young girls from the group.
The evidence thus framed for the jury the issue of whether Joseph
enticed “Julie” to meet with him for the purpose of engaging in
unlawful sexual conduct with a person he thought was a minor, or
whether, as he claimed, he was engaged only in role-playing, met her
to determine her true identity, and had decided not to have any
involvement with her if she turned out to be a minor. By their
verdict, the jury obviously rejected his defense.
Discussion
The Appellant seeks a retrial because of an alleged error in the
jury charge and several evidentiary rulings claimed to have denied
him a fair trial.
I. Jury charge
-8-
Joseph contends that the trial judge committed reversible error
by giving a jury charge that permitted a conviction on either of two
bases, one of which is not an offense. The indictment charged a
violation of 18 U.S.C. § 2422(b) by using a facility of interstate
commerce to “persuade and entice” a person under 18 to engage in
sexual activity that constitutes a criminal offense.
The District Judge instructed the jury on each of the three
elements of the crime: (1) use of a facility or means of interstate
commerce; (2) use of the Internet to knowingly attempt to persuade or
entice a person whom the defendant believed to be under 18 years of
age; and (3) that if sexual activity had occurred, the defendant could
have been charged with a crime under New York Law. The Appellant
challenges the instruction elaborating on the “enticing” element:
[T]he second element the Government must prove beyond a
reasonable doubt is that the defendant used the [I]nternet
to knowingly attempt to persuade or entice a person who the
defendant believed to be under the age of 18 years to engage
in any sexual activity.
. . .
Now, as for the terms “persuading” and “[e]n[t]i[c]ing,” I
charge you that these words are common usage and should be
given their common meaning. Persuade means to move by
argument or entreaty or expostulation to a belief, position,
or course of action--wow, that is a mouthful. The term
“entice” means to wrongfully solicit, persuade, procure,
allure, attract, coax, or seduce, or to lure, induce,
attempt, incite, or persuade a person to do a thing.
I instruct you, the government does not need to prove that
the defendant attempted to wholly create desire where such
-9-
desire never existed. The government only needs to show,
beyond a reasonable doubt, that the defendant attempted to
convince or influence the person he believed was a 13 year
old girl to engage in a sexual act with him, or made the
possibility of a sexual act with him more appealing.
(emphasis added)
The defendant objected to the italicized portion of the
“enticing” element at both trials and renews his claim on appeal.3
3
The Government contends that Joseph did not object at trial to
the alternative language, “or made the possibility of a sexual act
with him more appealing,” and only wanted the language amplified to
include the words “with him,” which had not been in the proposed
charge. We disagree.
At the charge conference, defense counsel challenged the “more
appealing” language four times. First, he made clear his objection to
the “more appealing” language by pointing out that under the charge
“if he just makes the idea of sex more appealing, he could be
convicted of a crime which could be just pure cybersex without any
intent to induce or persuade. And that is not covered by the
statute.” The “more appealing” language, he argued, “covers a wide
variety of noncriminal conduct.” Next, when the trial judge read the
portion of the charge from the prior trial, which included the “more
appealing” language, defense counsel repeated his objection and
-10-
additionally complained that the language did not require a finding of
sexual conduct committed with the defendant. He stated: “That is
their enticement charge, which, to me, your Honor, covers noncriminal
conduct and lowers the burden of proof and doesn’t mention anything
about having sex with him.” (emphasis added) Then, for a third time,
he argued against the “more appealing” language by stating: “And that
charge, as it is read right there[,] basically says, if you use a
computer to have these kind[s] of conversations and you make sex more
appealing, that is a crime, regardless whether it is with him,
regardless of anything else.” (emphasis added) By adding the
emphasized words defense counsel made clear that even if the sexual
conduct was stated to be more appealing “with him,” the “more
appealing” language, as he had previously stated, remained unlawful.
Finally, after the words “with him” were added, defense counsel made
clear that this addition met one objection but did not meet his more
basic point that the “more appealing” language provided an alternative
basis for conviction without proving enticement. He stated, “[T]hat
covers that one piece of it. The other piece is that I think the
charge, as given, lowers the burden of proof and basically says that
you don’t have to persuade or entice.”
The fact that we recite these four instances of objection to the
-11-
Where an instruction defining one of two alternative grounds is
legally erroneous, a court must reverse unless it can determine with
absolute certainty that the jury based its verdict on the ground on
which it was correctly instructed. See Griffin v. United States, 502
U.S. 46, 58-60 (1991); Wright, Federal Practice and Procedure, § 485,
at 382 n.16 (2000).
“[A] conviction under § 2422(b) requires a finding only of an
attempt to entice or an intent to entice, and not an intent to perform
the sexual act following the persuasion.” Brand, 467 F.3d at 202.
Most of the jury instruction on the “enticement” element properly
reflects the required focus on attempting or intending to entice. The
instruction states that the Government need show only “that the
defendant attempted to convince or influence the person he believed
was a 13 year old girl to engage in a sexual act with him[.]”
However, the alternative basis for conviction in that instruction--”or
made the possibility of a sexual act with him more appealing”--does
not reflect the requirement of an intent to entice. Indeed, by
providing the “more appealing” formulation as an alternative to the
erroneous “more appealing” language one at a time does not mean that
we have viewed them “in isolation,” as our dissenting colleague
suggests. See dissenting op. at [4]. Indeed, their combined effect
makes clear the force of defense counsel’s objection.
-12-
“convince or influence” language, which had previously been explained
as examples of “enticing,” the challenged language permitted
conviction even if Joseph did not intend to entice “Julie” into
engaging in a sexual act with him.
Joseph sought to defend the charge against him by claiming that
he was only engaging in cybersex conversation (simulating sex via
sexual communication over the Internet), without any intent to entice
“Julie” to engage in sexual conduct with him. He claimed that he
agreed to meet her only to see if she was an adult role-player or
really a child, and that, if she turned out to be a child, he would do
nothing further. Of course, the jury did not have to credit his
explanation, and the portions of his conversations that could be
understood as intended to make the possibility of a sexual act with
him “more appealing” were evidence supporting an inference that he did
intend to entice her. But the offense remains “enticing,” and making
a sexual act “more appealing” in the absence of an intent to entice is
not a crime.4 If jurors thought that Joseph only wanted to make
“Julie” think that sexual conduct with him would be appealing, but did
not intend to entice her to engage in such conduct with him, they
would have convicted him for having cybersex conversation, which is
4
Cybersex conversation constituting the transfer of “obscene
matter” via the Internet to a person under 16 might well violate 18
U.S.C. § 1470, but Joseph was not charged with that offense.
-13-
not a crime, but not for violating section 2242(b).
The risk of an improper conviction based only on the “more
appealing” formulation was heightened by the Government’s summation.
First, the prosecutor told the jury that “the defendant wanted Julie
to think that engaging in a sexual act with him would be appealing and
enticing. And that, ladies and gentlemen, is a federal crime.”
Although the word “enticing” was used, it was used to reflect the
effect on “Julie,” not whether Joseph’s intent was to entice. See
United States v. Dhingra, 371 F.3d 557, 567 (9th Cir. 2004)
(emphasizing that focus of section 2422(b) is on the defendant, not
the victim); United States v. Rashkovski,
301 F.3d 1133, 1137 (9th
Cir. 2002) (Under section 2422, “it is the defendant’s intent that
forms the basis for his criminal liability, not the victims’.”).
Then the prosecutor went further and invited the jury to rely
solely on the “more appealing” alternative in the charge. She told
the jury: “The crime that he’s been charged with is enticement, that
he was attempting to persuade or entice a minor into sexual activity.
As I expect the judge to instruct you, that means the government need
only show that the defendant attempted to make the possibility of a
sexual act with him more appealing to someone he thought was a minor.”
Trial Transcript 1048-49 (emphasis added). In fact, that was not all
that the Government needed to show.
The “more appealing” formulation apparently derives from language
-14-
in United States v. Rashkovski, 301 F.3d 1133 (9th Cir. 2002), which
the Government cited to the District Court in support of its request
to include this formulation. In Rashkovski, a defendant convicted of
enticing women to come to the United States from Russia for the
purpose of prostitution challenged the sufficiency of the evidence on
the ground that the women wanted to leave Russia of their own accord.
See
id. at 1136. The Ninth Circuit affirmed the conviction for
violating 18 U.S.C. § 2422(a) because the defendant had offered to
make and had paid for the women’s travel, and they had accepted his
offer and traveled with his assistance. See
id. at 1137.
“Enticement,” the Court stated, “merely requires that [the defendant]
have convinced or influenced [the women] to actually undergo the
journey, or made the possibility more appealing.”
Id. There is no
indication that the “more appealing” formulation was included in the
jury charge at all, much less as an alternative to a required finding
of enticement. We agree with the Ninth Circuit that making a
possibility more appealing can be evidence of enticement, but we do
not read that Court’s opinion as a ruling that doing so can be a basis
for conviction under either subsection of section 2422 in the absence
of enticement. See United States v. Tykarsky,
446 F.3d 458, 473 (3d
Cir. 2006) (“‘persuade,’ ‘induce,’ ‘entice,” and ‘coerce’ . . . have
a plain and ordinary meaning that does not need further technical
explanation”); United States v. Kaye,
451 F. Supp. 775, 783 (E.D. Va.
-15-
2006) (convicting defendant of violating section 2422(b) based on
plain meaning of “entice” without regard to the “more appealing”
formulation from Rashkovski).
Because the jury charge permitted conviction on an invalid basis
and because the risk that the jury grounded its verdict on that basis
is not insubstantial, the defendant is entitled to a new trial.5
5
Our dissenting colleague, believing the error not to have been
preserved, declines to find plain error because he views the evidence
of guilt as “conclusive.” Dissenting op. at [16]. Even if the error
had not been preserved, the test for affirming, notwithstanding
submission to a jury of an invalid legal basis for conviction, is not
whether there is conclusive evidence of guilt under the valid basis.
A verdict must be set aside where it “‘is supportable on one ground,
but not on another, and it is impossible to tell which ground the jury
selected.’” Griffin, 502 U.S. at 52 (quoting Yates v. United States,
354 U.S. 298, 312 (1957)); see United States v. Foley,
73 F.3d 484,
494 (2d Cir. 1996) (conviction reversed for plain error where court
“unable to determine” whether finding of guilt rested on valid or
invalid basis); United States v. Scotti,
47 F.3d 1237, 1246 (2d Cir.
1995) (order for new trial affirmed “[b]ecause the jury may have
reached its verdict” on invalid basis).
-16-
II. Evidentiary rulings
Since the case must be retried, we comment briefly on two
evidentiary rulings, challenged on appeal, that are likely to arise on
retrial.
(a) “Muscleteens” photos.
The Appellant contends that it was error for the prosecution to
introduce a group of photos of young girls displayed on an Internet
website called “Muscleteens,”6 although the main objection is that once
Our dissenting colleague relies on United States v. Skelly, 442
F.3d 94 (2d Cir. 2006). The error in Skelly was the submission of an
incomplete charge on a valid alternative legal theory, not, as here,
the submission to the jury of an invalid alternate basis for
conviction that did not state a criminal offense. Moreover, because
the properly charged basis in Skelly “occupied the entirety of [the
prosecution’s] opening statement and all but a few remarks in its
closing statement, “
id. at 99, we were able to conclude that it was
“overwhelmingly likely that any reasonable juror would have convicted
on the basis of the Government’s primary theory.”
Id. In the pending
case, we cannot possibly reach that conclusion in light of the
Government’s summation urging conviction “solely” on the invalid
basis.
6
These photos had not been introduced at the first trial, which
resulted in a mistrial.
-17-
the photos were in evidence, the defense was unfairly prevented from
showing that Joseph had not looked at them.
Joseph testified that he had joined numerous Internet member
group concerned with bodybuilding, including one called “Muscleteens.”
He indicated that this site “was made for young girls to show off
their muscles” and acknowledged that a document describing the site
stated that pictures could be posted of girls between 5 and 18. He
said that “[t]he pictures change, some weekly, some monthly”; that
when he joined the group, the picture on front of group’s site was an
adult bodybuilder; that he normally looked at photos of 18-21-year-
olds; and that when the site “started to change” he “didn’t go back
and visit” anymore.
At the conclusion of the defense case, the prosecution indicated
it wanted to call an FBI agent to introduce photos from the
Muscleteens group for the purpose of rebutting Joseph’s testimony that
the photos were predominately of 18- and 19-year-old girls. Defense
counsel argued that the images were “remarkably prejudicial” and that
there was nothing “to suggest to the jury that [Joseph] had looked .
. . at all this stuff.” The prosecutor responded, “That’s not what
we’re suggesting,” and argued that the photographs should be admitted
to rebut Joseph’s testimony that Muscleteens “had predominately
pictures of 19- to 20-year-old girls.” The Judge overruled the
defense objection and allowed the prosecution to introduce the
-18-
pictures. Many of the photos appeared to be girls under 18.
On cross-examination, defense counsel sought to ask Watson if
there was any evidence that Joseph had looked at the Muscleteens
photos that Watson had introduced. The Judge sustained the
prosecutor’s objection and stated, “The subject matter is not to be
explored.”
Having introduced the photos for the limited purpose of
challenging Joseph’s credibility on one point and disclaimed any
broader purpose, the prosecution then argued in summation that the
photos were “devastating evidence of the defendant’s predisposition”
to entice young girls.7 When defense counsel sought to respond in his
summation that there was no evidence that Joseph had ever looked at
the Muscleteens photos, the Court cut off the argument, stating that
“[Watson] was not proffered for more than one issue, and that was all
7
Having told the jury that the photos were “devastating evidence,”
the Government is somewhat disingenuous in now arguing that any error
in admitting them was harmless. The prosecutor also engaged in
dubious conduct by inviting the jury to consider “why [defense
counsel] got so excited about these photos.” Cf. United States v.
Gonzalez, 488 F.2d 833, 836 (2d Cir. 1973) (reversible error found
where prosecutor’s derogatory remarks about defense counsel’s
objection coupled with statements in summation prejudiced defendant).
-19-
that the court will permit you to inquire about. So don’t go there.”
Although admission of the Muscleteens photos was not erroneous,
if they become relevant at a retrial, the defendant must be accorded
an opportunity to present evidence that he did not view them.
(b) Expert Testimony. Also likely to recur at retrial is the
issue of whether the defendant’s expert witness, Dr. James Herriot,
should be permitted to testify about role-playing in the context of
sexually explicit conversations on the Internet. Dr. Herriot is an
Associate Professor of Clinical Sexuality at the Institute of Advanced
Human Sexuality in San Francisco. Dr. Herriot proposed to testify
about a distinct culture of the Internet in which one can become a
“fantasy character[].” He would also explain the realities and
motivations of online role-playing via chatrooms and email. Dr.
Herriot wrote his Ph.D. thesis on sexual communication on the Internet
and had testified previously on the subject in federal court.8 The
District Court sustained the Government’s objection to Dr. Herriot’s
testimony, primarily on the ground of relevance.9
8
In a case similar to Joseph’s, Dr. Herriott’s testimony was
admitted, over the Government’s objection, and the defendant was
acquitted. See United States v. Wragg, 01 Cr. 6107, docket entries
nos. 86, 88, 90, 97.
9
An issue also arose as to the timeliness of the defense’s
proffer. To the extent that timeliness concerned the District Court,
-20-
Although the admission or exclusion of expert testimony is
committed to the discretion of the court, see United States v.
DiDomenico, 985 F.2d 1159, 1163 (2d Cir. 1993), we urge the District
Court to give a more thorough consideration to the defendant’s claim
to present Dr. Herriot’s testimony, in the event it is offered at
retrial.
Dr. Herriot’s field of study and experience qualified him to
offer relevant testimony. He has conducted a large number of
interviews and studied chat-room conversations to understand sexual
behavior on the Internet. Social science “research, theories and
opinions cannot have the exactness of hard science methodologies,”
Jenson v. Eveleth Taconite Co., 130 F.3d 1287 (8th Cir. 1997), and
“expert testimony need not be based on statistical analysis in order
to be probative.” United States v. Long,
328 F.3d 655, 66 (D.C. Cir.
2003). “[P]eer review, publication, potential error rate, etc. . . .
are not applicable to this kind of testimony, whose reliability
depends heavily on the knowledge and experience of the expert, rather
than the methodology of theory behind it.” United States v. Hankey,
there may have been a misunderstanding of Fed. R. Crim. P. 16(b)(1)(C)
since the Government made no request for disclosure of defense
experts. In any event, a timeliness issue is not likely to arise at
retrial.
-21-
203 F.3d 1160, 1169 (9th Cir. 2003). In such cases, the place to
“quibble with [an expert’s] academic training” is “on cross-
examination” and goes to his “testimony’s weight . . . not its
admissibility.” McCullock v. H.B. Fuller Co.,
61 F.3d 1038, 1043 (2d
Cir. 1995).
To the extent that the District Court was concerned that
Herriot’s testimony would rely on hearsay, that would not be a valid
objection. See Fed. R. Evid. 703 (“If of a type reasonably relied upon
by experts in the particular field in forming opinions or inferences
upon the subject, the facts or data need not be admissible in evidence
in order for the opinion or inference to be admitted.”). Social
science experts commonly base their opinions on interviews.
Dr. Herriot’s opinions appear to be highly likely to assist the
jury “to understand the evidence.” Fed. R. Evid. 702. Defense counsel
represented that Dr. Herriot
will testify that . . . [a] major component of the entertainment
on the Internet is the rapid repartee, in addition to having
imaginative fun. When engaging in Internet role-play, people
love to experiment with their personas. Typically, people weave
a bit of truth about themselves with a great deal of imagination
and/or exaggeration. The Internet presents [a] competitive
entertainment. . . . Sexually explicit conversations tend to
drive the chatting relationship, and are fueled by the anonymity
of the created personas. . . . Often, chatters become curious
about who is “behind the screen.” There are many methods
chatters use to “de-mask” the other participant: such as asking
for a photograph, attempting a phone conversation, asking for
information that can be independently verified or even attempting
to meet in a public space.
-22-
Although some jurors may have familiarity with Internet
messaging, it is unlikely that the average juror is familiar with the
role-playing activity that Dr. Herriot was prepared to explain in the
specific context of sexually oriented conversation in cyberspace.
Many prospective jurors at Joseph’s trial acknowledged that they had
never visited a chat-room, and professed no understanding of what
occurs there. Obviously a jury would not have to accept Joseph’s
claim that he planned only to meet “Julie” to learn who she was and
that he lacked any intention to engage in sexual conduct with her, but
the frequent occurrence of such “de-mask[ing]” of chat-room
participants might provide support for his defense.
Numerous courts have upheld the admission of expert testimony to
explain conduct not normally familiar to most jurors. See, e.g.,
United States v. Hayward, 359 F.3d 631, 635 (3d Cir. 2004) (modus
operandi of child molesters); United States v. Alzanki,
54 F.3d 994,
1005-06 (1st Cir. 1995) (tendency of abuse victims to remain with
their abusers); United States v. Azure,
801 F.2d 336, 340 (8th Cir.
1986) (inability of children to distinguish truth from fantasy). Dr.
Herriot’s testimony would seem to be similarly relevant.10
10
Our dissenting colleague sees little need for Dr. Herriot’s
testimony because the role-playing explanation for the defendant’s
conduct was adequately presented by the defendant’s own testimony. See
-23-
Conclusion
Primarily because the jury was permitted to convict on an invalid
legal basis, the conviction may not stand. The conviction is vacated,
and the case is remanded for a new trial.
dissenting op. at [21]. However, when the Government implores a jury
to find the defendant and his explanation not credible, we think the
presentation of that explanation from a qualified expert would be
significant, especially where the explanation is not one with which
jurors are likely to have familiarity.
-24-
USA v. Joseph
No. 06-5911-cr
JOHN M. WALKER, JR., Circuit Judge, dissenting:
I disagree with the majority’s conclusion that Joseph objected to
the “more appealing” language at trial and therefore preserved that
challenge for appellate review. Even if Joseph initially raised such
an objection – and I do not believe he did so with sufficient clarity
or particularity – the record shows that by the end of the charge
conference, he had abandoned it.
Because Joseph did not preserve his challenge at trial, we should
review that claim for plain error, United States v. Cohen, 427 F.3d
164, 172 (2d Cir. 2005), “which is a very stringent standard requiring
a serious injustice or a conviction in a manner inconsistent with
fairness and integrity of judicial proceedings,” United States v.
Walsh,
194 F.3d 37, 53-54 (2d Cir. 1999) (internal quotation marks and
citation omitted). Under the plain error standard, Joseph bears the
burden of showing that he was prejudiced, United States v. Logan,
419
F.3d 172, 179 (2d Cir. 2005), but he cannot do so because there was
conclusive evidence of his guilt so that any error in the jury charge
did not “affect[] the outcome of the district court proceedings,”
United States v. Skelly,
442 F.3d 94, 99 (2d Cir. 2006) (internal
-25-
quotation marks and citation omitted). I would therefore affirm the
judgment of conviction.
I. Joseph’s Objections at the Charge Conference
The charge conference included an extensive discussion regarding
the following sentence in the proposed charge: “The government only
need[] show, beyond a reasonable doubt, the defendant . . . made the
possibility of the sexual activity more appealing.” App. at 150.5-.6.
There was some additional, albeit brief, discussion of the portion of
the charge defining the terms “persuade” and “entice.”
Three purported objections to these instructions are at issue in
this case, the first of which I believe was not properly made and, in
any event, was abandoned. For ease of reference, I will refer to them
as objections A, B, and C. Joseph argues, and the majority maintains,
that he objected (A) to the language that the government only needed
to show that Joseph “made the possibility of the sexual activity more
appealing.” The objection, of course, would be that this language
leaves out enticement, which is a part of the crime, although
enticement is charged elsewhere, including as an alternative theory in
the same sentence. The government argues, and I agree, that at trial
Joseph did not make objection A (to the “more appealing” language
itself); he only objected (B) to the omission of the words “with him,”
-26-
which he wished to insert just before “more appealing,” and (C) to the
proposed charge’s inclusion of explicit definitions for the terms
“entice” and “persuade” as opposed to a more general allusion to the
plain meaning of those terms.
On my reading of the record, the charge conference proceeded in
three “phases.” During phase I, Joseph made the broad-brush argument
that the proposed charge, which, as the majority notes, was adapted
from a Ninth Circuit case, see Maj. Op. at [14], “impermissibly lowers
the burden of proof,” App. at 150.2. Rather than identify specific
language (such as the “more appealing” language) as erroneous, defense
counsel argued that “this charge, here, covers a wide variety of
noncriminal conduct.” App. at 150.3 (emphasis added).
During phase II, defense counsel, the government, and the
district court focused their discussion on objection B. Specifically,
the defense objected that “nowhere else in the charge does it say[]
that [the defendant] needs to be using [the Internet] to persuade or
induce a minor to engage in a sexual act with him.” Id. at 150.3-.4
(emphasis added). The government countered that “everybody
understands that what we’re charging him with is making the act of
sexual contact more appealing with him, not with somebody else.”
Id.
at 150.5. And the district court agreed that “[t]here is no question
-27-
. . . here what we’re talking about.” Id. at 150.7. Objection A was
at no point a subject of discussion in phase II.
During phase III, defense counsel affirmatively requested that
the charge include the “more appealing” language, so that the phrase
would read, “[s]exual activity ‘with him’ more appealing.” Id. The
government agreed to the insertion of “with him” into the “more
appealing” clause, and the district court accepted the change. See
id. at 150.8. During this phase, defense counsel also raised
objection C when he asked the district court to charge the plain
meaning of “entice” or “persuade” without added embellishment.
Id.
Noticeably absent from the charge conference transcript is any
explicit discussion during any phase between defense counsel, the
government, and the district court of objection A. Had there been
such a discussion, I have little doubt that the conscientious district
judge, who labored mightily over the charge, would have addressed the
problem.
II. Unpreserved Error
Applying well-established policy considerations and Second
Circuit case law, it is evident that objection A was not preserved for
two reasons. First, even if some of defense counsel’s statements
could, when viewed in isolation and taken outside of their context, be
-28-
construed as objecting to the “more appealing” language itself,1 any
such objection was stated in terms too general and indistinct to
apprise the district court (and the government) of the position that
Joseph now asserts on appeal. Second, any such objection was plainly
abandoned during phase III when defense counsel personally requested
and affirmatively accepted the language, “made the possibility of
sexual activity with him more appealing.”
A. Insufficient Clarity
Under Federal Rule of Criminal Procedure 30(d), “[a] party who
objects to any portion of the instructions . . . must inform the court
of the specific objection and the grounds for the objection before the
jury retires to deliberate.” Fed. R. Crim. P. 30(d) (emphasis added).
As this court has recognized, the specificity requirement is not to be
taken lightly, because it helps to ensure that the objection is
squarely and clearly presented to the district court, which guarantees
1
For example, the majority notes defense counsel’s statement that
“the jurors are thinking, if he just makes the idea of sex more
appealing, he could be convicted of a crime which could be just pure
cybersex without any intent to induce or persuade. And that is not
covered by the statute.” App. at 150.4; see also Maj. Op. at [10] n.3
(quoting this language). As I illustrate below, when this statement
is viewed in its context, it is clear that the government and the
district court only perceived the defense as raising objection B.
-29-
that the court of first instance has a meaningful opportunity to
consider and correct any error prior to review by a court of appeals.
See United States v. Weintraub, 273 F.3d 139, 145-46 (2d Cir. 2001)
(applying plain error review to defendant’s jury charge objection
because “it was insufficiently particular to raise the question now
presented and thus preserve it for appeal. By failing to draw the
district court’s attention to the problem that Weintraub now complains
of, the defendants deprived the district court of the opportunity to
correct its putative error.”); see also
Skelly, 442 F.3d at 99
(conducting plain error review because “[t]he defendants . . . failed
to raise a specific objection to the omission of [certain] language
from the charge”).
The importance of preservation for purposes of appellate review
cannot be understated:
Rule 30 provides that no party may assign as error any
portion of the charge unless that party objects to it before the
jury retires to consider its verdict. The purpose of this
provision is to give the trial court an opportunity to correct
any error or omission in the charge before the jury begins its
deliberations. If prompt objection is made as the rule requires,
the error can then be corrected. As the Supreme Court has said:
Orderly procedure requires that the respective adversaries’
views as to how the jury should be instructed be presented
to the trial judge in time to enable him to deliver an
accurate charge and to minimize the risk of committing
reversible error.
The objecting party must state distinctly the matter to
which it objects and the ground of its objections. The objection
must be specific enough so that the trial court can perceive the
basis on which it is claimed that the instruction was erroneous.
-30-
. . . Accordingly, where the court and opposing counsel
understand the defendant’s position, even a vague objection
should be held sufficient.
2A Charles Alan Wright, Federal Practice and Procedure § 484 (3d ed.
2000) (emphasis added) (footnotes omitted) (quoting Henderson v.
Kibbe, 431 U.S. 145, 154 (1977)). Conversely, where the trial court
and opposing counsel do not understand the defendant’s objection
because it was not “state[d] distinctly,” the requirements of Rule 30
have not been met.
A defendant’s failure to state his objection with sufficient
clarity to apprise the district court of his position results in plain
error review. Cf. United States v. Lemire, 720 F.2d 1327, 1343 n.25
(D.C. Cir. 1983) (“Where, as here, the defense fails to specify
sufficiently the portion of the charge to which it objects, and
therefore fails to comport with Rule 30, we will reverse only if the
instruction is ‘plain error’ – if the error causes a substantial
miscarriage of justice. . . . Of course, for those objections that the
defendants raised with sufficient particularity to apprise the trial
judge of their dissatisfaction, we do not demand ‘plain error’ in
order to reverse.”). When, as here, an objection is made at trial but
is at best ambiguous, or when the appellant’s objection focuses on a
different problem than that targeted on appeal, it is unpreserved.
See United States v. Vasquez,
267 F.3d 79, 87 (2d Cir. 2001) (“During
the charge conference, Vasquez did object to the aspect of the charge
-31-
involving heroin and cocaine trafficking, but the basis for his
objection is ambiguous. . . . Where an appellant states distinctly,
under Rule 30, the grounds for objecting the charge below, but urges
a different ground on appeal, the objection is not properly preserved
on appeal and we therefore review for plain error. Vasquez’s
situation falls squarely within this rule . . . .”).
In this case, if defense counsel meant to object to the inclusion
of the “more appealing” language itself (objection A), he never made
this clear at trial. His objection was too general and imprecise to
apprise the district court that the defense was seeking the deletion
of the “more appealing” clause,2 and it therefore failed to provide the
2
At no point did defense counsel make explicit that he was
advocating the omission of the “more appealing” language altogether.
Although he specifically requested the insertion of “with him,” he
never requested the removal of “more appealing.” Furthermore, his
objections about “cover[ing] noncriminal conduct” were more general
objections to “the charge,” not specific objections to the “more
appealing” language. See App. at 150.6 (“That is their enticement
charge, which, to me, your Honor, covers noncriminal conduct and
lowers the burden of proof . . . .” (emphasis added)); id. at 150.3
(“And this charge, here, covers a wide variety of noncriminal
conduct.” (emphasis added)); see also
id. at 150.7 (“[T]he charge, as
given, lowers the burden of proof . . . .). A general objection to
-32-
district court an opportunity to correct the error. Nor did defense
counsel’s statements at trial adequately inform opposing counsel of
the position that Joseph now asserts on appeal. The record shows that
both the district court’s and the government’s responses throughout
the charge conference addressed and focused solely on the omission of
“with him,” demonstrating that it was this objection – and not any
broader challenge to the “more appealing” language – that was in fact
conveyed to and perceived by the district court and the government.3
“the charge” does not indicate what particular aspect of the proposed
enticement charge defense counsel found problematic.
3
The majority construes defense counsel’s statement, “if he just
makes the idea of sex more appealing, he could be convicted of a crime
which could be just pure cybersex without any intent to induce or
persuade,” App. at 150.4, as raising objection A. However, the
responses from the government and district court – and indeed defense
counsel himself – centered on the insertion of “with him,” indicating
that their understanding was that defense counsel was actually raising
objection B:
The Defense: But it needs to be, he needs to be attempting to
induce or persuading someone he believes to be a
minor to engage.
-33-
The Court: Yeah.
The Defense: The statute is intended that he engage in a
sexual act with him, and –
The Government: No, to make it more appealing to someone.
The Defense: With him, but the way that charge –
The Government: That’s not necessarily true. It could be
that he makes it more sexually appealing to
a friend of his, too, but in this particular
case, yes, everybody understands that what
we’re charging him with is making the act of
sexual contact more appealing with him, not
with somebody else.
The Defense: You have no problem to amending the charge to a
word like that?
The Government: To with him?
-34-
The Court: No –
The Defense: You need to prove that he was intended to induced
or persuaded [sic], whichever, induce or entice .
. . or persuade in equal contact with him. That
would be illegal.
The Government: It is in the charge. It is under the
government’s theory of the case.
The Defense: I remember that it wasn’t in there last time . .
. .
Id. at 150.4-.5 (emphasis added).
In this exchange, defense counsel never argued for the complete
omission of the “more appealing” language from the charge. Instead,
he asked the government to agree to amend the charge to add “with him”
to that clause. Indeed, the suggestion to expand upon or clarify the
“more appealing” clause is incompatible with the suggestion to strike
it in its entirety because the former presumes retention of the “more
appealing” language. See also id. at 150.7 (The Defense: “It does no
-35-
Furthermore, during the charge conference, defense counsel had
several opportunities to voice an objection to the “more appealing”
language itself and make clear to the district court and to the
government that he was objecting to more than just the omission of
“with him.” Defense counsel, however, remained silent.4 Thus, any
one any harm to clarify it by adding it [i.e., “with him”] to that
section of the charge . . . .”).
4
For example, during phase II of the charge conference, defense
counsel said nothing during the following colloquy:
The Court: Okay. I’m looking at the paragraph at the
bottom. I instruct you . . . . The government
only needs show, beyond a reasonable doubt, the
defendant attempted to convince or influence the
victim to engage in a sexual act or made the
possibility of the sexual activity more
appealing.
Now, I gather that stays in, right?
The Government: Right.
-36-
broader objection that defense counsel may have raised (or intended to
raise) was not made clear to the district court, which cannot fairly
be said to have been apprised of the argument. Cf. Freytag v. Comm’r,
501 U.S. 868, 895 (1991) (Scalia, J., concurring in part, joined by
O’Connor, Kennedy & Souter, J.J.) (“The very word ‘review’ presupposes
that a litigant’s arguments have been raised and considered in the
tribunal of first instance.”).
B. Forfeiture Through Express Acceptance
In this case, not only did the defendant fail to make a clear
objection to the “more appealing” language itself, but any such
argument that could be gleaned from the record was plainly abandoned
during phase III of the charge conference, when defense counsel
expressly accepted the “more appealing” language by requesting that
the charge read, “[s]exual activity ‘with him’ more appealing,”5 and
The Court: Now, where does – where does the – the enticement
charge go, and what does it knock out, or – or
does it not knock anything out.
Id. 150.5-.6 (emphasis added). Such passive behavior by defense
counsel, wholly at odds with the defendant’s argument on appeal that
the specific objection to that language was raised below, is telling.
5
That portion of the charge conference proceeded as follows:
-37-
The Government: Basically, you just want it to say . . . The
government only need show beyond a
reasonable doubt that the defendant
attempted to convince or influence the
victim to engage in sexual activity. You
want to add the words “with him,” or made
the possibility of the sexual activity more
appealing. And that covers your objection?
The Defense: Sexual activity “with him” more appealing.
The Government: Two words “with him” or made the possibility
of the sexual activity “with him” more
appealing?
The Defense: And that covers that one piece of it. The other
piece is that I think the charge, as given,
lowers the burden of proof and basically says
that you don’t have to persuade or entice.
[Objection C] And we’re asking for the plain
meaning and I don’t really understand why we
wouldn’t just take the plain meaning of entice or
-38-
then turned the discussion to objection C. App. at 150.7. This court
has held that such behavior constitutes forfeiture of the objection
and will result in plain error review. See United States v.
Giovanelli, 464 F.3d 346, 351 (2d Cir. 2006) (per curiam) (“[I]f a
party invited the charge or affirmatively waived his position,” []he
has waived any right to appellate review of the charge. Giovanelli
has waived his challenge to Judge Rakoff’s jury charge. . . . [W]hen
Judge Rakoff, responding to Giovanelli’s objection, presented the
parties with a revised draft jury charge that no longer included the
‘natural and probable effect’ language, Giovanelli’s counsel
acknowledged that she was happy about that particular omission. Thus,
there was ‘approval or invitation’ of the omission (indeed, both).”
(alteration, internal quotation marks, and citations omitted));
Weintraub, 273 F.3d at 146 (“Weintraub also argues that counsel
properly objected during the charge conference. To the contrary,
defense counsel not only did not seek the instruction that Weintraub
now argues for, they affirmatively accepted the government’s
formulation. . . . We consequently review for plain error.”).
Joseph also forfeited objection A when he failed to correct the
government’s and the district court’s apparent understanding that he
persuade as Sand recommends.
App. at 150.7-.8 (emphasis added).
-39-
was only raising objection B. After the defense expressly requested
the insertion of “with him,” the government replied, “if all defense
attorney is asking is that we put in “with him” . . . and made the
possibility of sexual activity ‘with him’ more appealing . . . into
the charge, we don’t have an objection.” App. at 150.8. The
government thereby gave defense counsel an opportunity to correct any
misunderstanding and point out other objections. Rather than raise
objection A and argue that the “more appealing” language should be
struck in its entirety, defense counsel reiterated objection C, that
the original charge erroneously included explicit definitions for
“persuade” and “entice” rather than a simple reference to their plain
meaning. He stated, “And just the other issue concerning the plain
meaning.”6 Id. Joseph therefore forfeited any previous objection that
6
Earlier during phase III, defense counsel had stated:
And that covers that one piece of it. The other piece is that I
think the charge, as given, lowers the burden of proof and
basically says that you don’t have to persuade or entice. And
we’re asking for the plain meaning and I don’t really understand
why we wouldn’t just take the plain meaning of entice or persuade
as Sand recommends.
App. at 150.7-.8 (emphasis added). The majority interprets “[t]he
-40-
other piece” of defense counsel’s objection as an objection that even
with the addition of “with him,” the “more appealing” language was
erroneous because it permitted the jury to convict without finding
that the defendant persuaded or enticed. See Maj. Op. at [11] n.3.
In other words, the majority asserts that defense counsel continued to
raise objection A, even after objection B had been resolved to his
satisfaction.
As an initial matter, this reading ignores the fact that defense
counsel stated that “the charge, as given, lowers the burden of proof
and basically says that you don’t have to persuade or entice.” App.
at 150.7-.8 (emphasis added). At that point in the charge conference,
the district court had not yet accepted the addition of “with him.”
Defense counsel’s statement thus referred back to the original
proposed charge, and not to the charge as amended to include “with
him.” I therefore disagree with the majority that defense counsel was
arguing that the “more appealing” language was erroneous even with the
addition of “with him,” and that “the other piece” of his objection
was to the “more appealing” language itself.
Plainly, “the other piece” of the objection was to the expansion
of the meanings of “persuade” and “entice” in the original charge –
-41-
he might have made to the “more appealing” clause itself, and, under
Second Circuit case law, we should review such a challenge for plain
error.
III. Applying Plain Error Review
Although Weintraub states, “[i]n general, it is the rare case in
which an improper instruction will justify reversal of a criminal
conviction when no objection has been made in the trial court,” 273
F.3d at 145 (alteration omitted) (quoting
Henderson, 431 U.S. at 154),
objection C. The original charge stated: “Persuade means to move by
argument or entreaty or expostulation to a belief, position, or course
of action . . . . The term ‘entice’ means to wrongfully solicit,
persuade, procure, allure, attract, coax, or seduce, or to lure,
induce, attempt, incite, or persuade a person to do a thing.”
Here, defense counsel was arguing that the inclusion of explicit
definitions or synonyms for “persuade” and “entice” lowered the burden
of proof and would, in effect, allow the jury to convict without
finding that Joseph persuaded or enticed. For example, under the
charge, as given, the jury could convict upon finding that Joseph
“wrongfully solicit[ed]” a minor. For that reason, defense counsel
“ask[ed] for the plain meaning” of those terms, without any
embellishment. This was the subject of his second objection
(objection C), not the “more appealing” language.
-42-
the same is true when, as here, the objection that was made was
insufficient to preserve the error. Under plain error review, we
“revers[e] only if the error is clear or obvious and affects
substantial rights. To affect substantial rights, an error “must have
been prejudicial: It must have affected the outcome of the district
court proceedings.” United States v. Ganim, 510 F.3d 134, 152 (2d
Cir. 2007). “[T]he defendant bears the burden of establishing
prejudice.”
Logan, 419 F.3d at 179; see also United States v. Olano,
507 U.S. 725, 734 (1993) (noting that when an error has been
preserved, “a court of appeals normally engages in a specific analysis
of the district court record – a so-called ‘harmless error’ inquiry –
to determine whether the error was prejudicial. [Plain error review]
normally requires the same kind of inquiry, with one important
difference: It is the defendant rather than the Government who bears
the burden of persuasion with respect to prejudice.”)
Joseph cannot meet his burden because there was conclusive
evidence to support the properly charged theory that, using the
Internet, he “attempted to convince or influence the person he
believed was a 13 year old girl to engage in a sexual act with him.”
A. 158.1; see Skelly, 442 F.3d at 99 (finding no prejudice on plain
error review because the government’s “primary theory [of liability]
was supported by overwhelming proof”). The evidence belies any
suggestion, argued by the defendant, that he was just role-playing.
-43-
In his online conversations with “Julie,” the FBI agent, Joseph
made numerous comments demonstrating his intent to entice her into
engaging in sexual acts with him. Furthermore, on multiple occasions,
Joseph made statements indicating a genuine belief (prior to the day
he arranged to meet Julie) that Julie was a minor. For example, on
August 22, 2005, the following online exchange took place:
Joseph: everyone has different things that really turn them on
. . . for instance . . . i love touching and kissing .
. . i could caress a girl’s body for hours, touching,
kissing, slowly all over . . . every inch is like a
delicious meal to be savored slowly
. . . .
Julie: is that what you wanna do with us?
. . . .
Joseph: yes, i want to touch you, caress you, kiss you . . .
and show and te[]ach you things that feel good to you
and me . . . but only if you want to
Julie: u really do?
Joseph: yes, but no one can know, because i would go straight
to jail
Julie: what do u mean?
Joseph: you are too young for me . . . it is illegal . . . . i
want to show you both how touching and kissing can be
so, so hot
Supplemental App. at 86-87.
The next day, Joseph again chatted with Julie and described in
explicit detail the sexual acts that he wanted to perform with her.
He stated, “i kept thinki[n]g about having sex with you like that
-44-
until we both came.” When Julie asked, “do u really wanna do this in
person . . . or just pretend,” Joseph replied, “i really want to . .
. I’m just afraid someone will find out.” App. at 95 (emphasis
added).
Trying to arrange a meeting with Julie, Joseph said, “i just told
lorie i have some fr[ee] time next wed in the late morning.” Julie
asked, “really? . . . what do u wanna do?” and Joseph replied, “i want
to see you both . . . i have to ad[]mit, I’m very nervous about it
all, knowing how young you both are . . . but i am also very excited
and want to see if we have chemistry . . . i know i’m going to want to
have my hands all over you when i see you.” Supplemental App. at 99
(emphasis added). This conversation followed:
Joseph: we need to find a private place where no one will watch
us or accidentally find us
Julie: like the park?
Joseph: if there[ ]is good privacy there, sure.
Julie: w[o]uldnt it be w[ei]rd to do that out in the open?
Joseph: yes, defin[i]tely . . . not a good place for sex, but
maybe some kissing and touching
Julie: ok . . . so u don’t want to do sex?
Joseph: i wish we could find a private indoor place . . . not
outside[]in the park (until you are 18 :-))
Id. at 100-01; see also
id. at 106 (“[I] just may have a problem
because i am so much older than you[.]”);
id. at 107 (“[P]romise me
you won’t get me in trouble? . . . and have me arrested[.]”). These
-45-
conversations, among others, starkly refute Joseph’s claims that when
he chatted with Julie, he was simply role-playing and believed that
Julie was a sexually experienced adult posing as a minor.
Because there was abundant evidence supporting Joseph’s
conviction, there was no prejudice and therefore no plain error
requiring vacatur and remand. See Skelly, 442 F.3d at 99 (“This is
not a case, then, where it is impossible to determine which of two
competing theories formed the basis for conviction, for it is
overwhelmingly likely that any reasonable juror would have convicted
on the basis of the Government’s primary theory. Accordingly, we
conclude that the otherwise forfeited error in the district court’s
instruction does not constitute plain error that we may notice.”).
Moreover, assuming arguendo that the error did affect Joseph’s
substantial rights by affecting the outcome of his district court
proceedings, “the court of appeals has authority to order correction,
but is not required to do so.” Olano, 507 U.S. at 735. The Supreme
Court has stated that a reviewing court’s remedial discretion “should
be employed in those circumstances in which a miscarriage of justice
would otherwise result” – that is, if the error “seriously affects the
fairness, integrity, or public reputation of judicial proceedings.”
Id. (alteration, internal quotation marks, and citations omitted); see
also United States v. Crowley,
318 F.3d 401, 415 (2d Cir. 2003). No
error in the case before us calls into question the fairness,
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integrity, or public reputation of judicial proceedings.
IV. The District Court’s Evidentiary Rulings
The majority, anticipating a retrial, “urge[s] the District Court
to give a more thorough consideration to the Defendant’s claim to
present Dr. Herriot’s testimony [on Internet role-playing], in the
event it is offered at retrial.” Maj. Op. at [19]. The majority
believes that Dr. Herriot’s testimony would be probative and “highly
likely to assist the jury to understand the evidence.” Id. at [20]
(internal quotation marks and citation omitted). Nevertheless, the
majority acknowledges that “the admission or exclusion of expert
testimony is committed to the discretion of the court.”
Id. at [19].
I agree that the exclusion of Dr. Herriot’s testimony was within
the sound discretion of the trial judge, but I would refrain from
suggesting that the district court admit that evidence if it is
presented at retrial. Even if Dr. Herriot was a qualified expert, as
the majority seems to believe, see id. at [18-19], I believe the
evidence was properly excludable under Federal Rule of Evidence 403.
While testimony about a culture of role-playing on the Internet may
have been “relevant” under the low threshold set by Rule 401, it was
within the district court’s discretion to find that the testimony
lacked sufficient probative value. Evidence that some people engage
in role-playing on the Internet sheds little light on whether Joseph
did so in this particular case, when he was having sexually explicit
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conversations with “Julie.”
Weighing against this low probative value were “considerations of
undue delay, waste of time, or needless presentation of cumulative
evidence.” Fed. R. Evid. 403. Even without Dr. Herriot’s expert
testimony, there was ample opportunity to present the defense’s role-
playing theory from Joseph’s own testimony that he was only engaging
in sexual fantasy role-play. See Maj. Op. at [6-8, 12]. For example,
Joseph testified that his Internet screen name “is kind of . . . an
idealized version of what . . . Dennis Joseph can’t do but can do on
the internet.” App. at 114. He further testified to his general
practice of “playing pretend” on the Internet: “And going back maybe
seven or eight years ago, I would pretend to be things that I’m
actually not. I would pretend to be bodybuilders. I would pretend to
be very wealthy. . . . Sometimes I would pretend to be homosexual.”
Id. It was the province of the jury to decide whether to credit
Joseph’s testimony that he was simply role-playing.
Because I believe the district court acted within its discretion
in excluding Dr. Herriot’s testimony, I would not suggest that it
reconsider that decision upon retrial.
V. Conclusion
For the foregoing reasons, I respectfully dissent.
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