Opinion
05 Cr. 1265 (SHS).
September 7, 2006
MEMORANDUM OPINION ORDER
Following a four-day jury trial, Frank Gagliardi was convicted on May 16, 2006 of attempting to entice, induce or persuade a minor to engage in illegal sexual activity in violation of 18 U.S.C. § 2422(b). Gagliardi now moves pursuant to Fed.R.Crim.P. 29 to have that verdict set aside on the grounds that he was entrapped as a matter of law and that the government failed to establish that he committed the crime for which he was convicted. Because the evidence adduced at trial was sufficient to support the jury's verdict, Gagliardi's motion is denied.
Pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure, a court has authority to set aside a jury verdict and enter a judgment of acquittal when "the evidence is insufficient to sustain a conviction." Guilty verdicts cannot be overturned if "after viewing the evidence in the light most favorable to the prosecution . . . [the court concludes that] any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Pitre, 960 F.2d 1112, 1120 (2d Cir. 1990) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)).
Gagliardi first claims that he was entrapped as a matter of law because the government both induced his crime and failed to prove that he was predisposed to commit it. Entrapment is an affirmative defense that Gagliardi must establish by a preponderance of the evidence. See United States v. Williams, 23 F.3d 629, 635 (2d Cir. 1994). "The defense has two elements: (1) government inducement of the crime, and (2) lack of predisposition on the defendant's part. If a defendant presents credible evidence of government inducement, then the prosecutor must show predisposition beyond a reasonable doubt." United States v. Bala, 236 F.3d 87, 94 (2d Cir. 2000) (citations and internal quotation marks omitted).
Gagliardi asserts that the screen name and online profile of Ms. Stephanie Good, a private citizen who posed as a thirteen-year old girl named "Lorie" and provided the government with her email and instant message communications with Gagliardi, constitute sufficient evidence of government inducement to sustain the entrapment defense as a matter of law. Gagliardi asserts that Good's screen name, "Teen2Hot4u," and her on-line profile constituted inducement because they were "sexually provocative." Gagliardi also claims that Good, or "Lorie," broached the subject of sexual conduct in the first instant message communications between Good and Gagliardi.
A rational trier of fact could have concluded based on the evidence adduced at trial that Good's screen name and profile did not constitute inducement because the name and profile were not directed at Gagliardi in particular, but were available on the Internet for any America Online subscriber to view. To view Lorie's profile, Gagliardi was required to proactively seek it out, by clicking on the screen name "Teen2Hot4u." (Tr. 297.) Moreover, Good's profile represented that "Lorie" was a thirteen-year-old girl, and Gagliardi would have known this when he initiated the first chat with "Lorie" after viewing the "Teen2Hot4u" profile. (Gov. Exs. 4, 11, 12.) A rational trier of fact could also have concluded that Gagliardi broached the subject of sexual conduct in the first of those chats. In that first, July 7, 2005 chat, although Gagliardi wrote that he initiated the chat "to make sure [Lorie was] really 13," he also asked "y[ou] already having sex"? (Gov. Ex. 11.) A rational juror could have found that this was the first broaching of sex in the communications between Good and Gagliardi. Gagliardi then initiated the next six chats, and many more thereafter. In just the second chat, Gagliardi asked, "would you like to love me for money"? (Gov. Ex. 12.) A reasonable juror could have found that Good, by contrast, said nothing sexually provocative. In fact, the juror could have found that Good was merely answering Gagliardi's inquiries as a thirteen-year old girl might.
Even if Gagliardi had adduced enough credible evidence of inducement that no rational trier of fact could have concluded that the government did not induce the crime, a rational juror could nevertheless have rejected Gagliardi's entrapment defense by finding that he was predisposed to commit the crime. The government may prove predisposition by, among other things, showing a defendant's "willingness to commit the crime as evidenced by his ready response to the inducement." Bala, 236 F.3d at 94 (internal citations and quotation marks omitted). As noted above, in just the second online chat, Gagliardi asked whether "Lorie" would have sex with him for money. (Gov. Ex. 12.) In later chats, Gagliardi described in detail the various sexual acts he wished to engage in with "Lorie," and attempted to set up a meeting with her. (Gov. Exs. 12, 13, 17.) When "Lorie" introduced Gagliardi to "Julie," another purported thirteen-year old girl played on the Internet by a Special Agent of the FBI, Gagliardi also described to "Julie" the sexual activity he wished to engage in with her, and attempted to set up a meeting. (Gov. Exs. 85, 90.) A rational juror could thus conclude that even if Good induced Gagliardi's commission of the crime by posting online a sexually suggestive screen name or profile, or by initiating a sexual discussion in the first communication, Gagliardi was willing to commit the crime and readily responded to the inducement. See Bala, 236 F.3d at 94. Thus, Gagliardi did not adduce sufficient evidence at trial to demonstrate that he was entrapped as a matter of law.
Gagliardi's second contention is that the government failed to establish beyond a reasonable doubt that he had the requisite level of intent for — or took a substantial step toward completion of — the offense of conviction. Gagliardi points to the email message he sent the night before his attempted meeting with the girls, in which he stated "no sex"; his post-arrest statement that his communications with "Lorie" and "Julie" were "cyber," meaning for fantasy purposes; and the fact that he was present in his car on a busy city street when apprehended — a location where, he claims, no sexual activity could realistically occur. Finally, Gagliardi argues that the presence of condoms and a Viagra pill in his car was explained by the testimony of a defense witness who stated that she and the defendant had been planning to meet for a sexual encounter around that time.
However, the evidence adduced by the government at trial was more than sufficient to enable a rational juror to conclude that Gagliardi had the requisite intent to attempt to induce a minor to engage in illegal sexual conduct. Gagliardi communicated at length and in detail about the sexual activities he wished to engage in with "Lorie" and "Julie" (see, e.g., Gov. Exs. 12, 14, 23, 26, 52, 85); made detailed plans regarding a place and time to meet the girls (see Gov. Exs. 85, 99); discussed going to a "hotel that I know in NJ" (Gov. Ex. 85); wrote "Lorie" that she should not be scared to meet him alone because he is "a lamb," "a gentleman," and she "can trust [him] 100%" (Gov. Ex. 12); expressed concerns about getting caught by law enforcement (see Gov. Exs. 12, 23, 52); and offered to pay "Lorie" for sex (see Gov. Exs. 12, 23).
A rational juror could have also concluded that Gagliardi took a substantial step toward completion of the crime. After numerous written communications over the Internet with "Lorie" and "Julie" over several months, which detailed what sexual acts Gagliardi wished to engage in with the girls, an exchange of photographs, and detailed planning regarding a date and time to meet, Gagliardi arrived at the prearranged meeting place at the prearranged time with condoms and Viagra in his car. (Tr. 124-126, 545-552.) The jury could have reasonably inferred that Gagliardi intended to have sex with the girls in his car or intended to take them to another location for sex, such as the hotel in New Jersey. The jury could have rationally discounted the testimony of the defense witness that suggested that the condoms and Viagra were intended for an encounter with her, because that witness also testified that although she and Gagliardi had discussed a meeting, they "didn't really plan for that . . . date." (Tr. at 580-81.) The evidence is clearly sufficient for a rational juror to conclude that Gagliardi took a "substantial step" towards commission of the crime. See, e.g., United States v. Meek, 366 F.3d 705 (9th Cir. 2004);United States v. Root, 296 F.3d 1222 (11th Cir. 2002); United States v. Munro, 394 F.3d 865, 869-70 (10th Cir. 2005).
For the reasons set forth above, Gagliardi is not entitled to a judgment of acquittal pursuant to Rule 29 and the motion is denied.