United States v. Gagliardi, No. 06-4541 (2d Cir. 2007)

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06-4541-cr United States v. Gagliardi 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2007 (Argued: September 4, 2007 Decided: October 22, 2007) Docket No. 06-4541-cr -----------------------------------------------------x UNITED STATES OF AMERICA, Appellee, -- v. -FRANK GAGLIARDI, Defendant-Appellant. -----------------------------------------------------x 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). 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 30 31 32 33 34 35 Because we find that § MICHAEL S. POLLOK, New York, N.Y., for Defendant-Appellant. MARGARET GARNETT, Assistant United States Attorney, of counsel, (Benjamin Gruenstein, Assistant United States -1- 1 2 3 4 5 6 7 Attorney, of counsel, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, N.Y., for Appellee. JOHN M. WALKER, JR., Circuit Judge: 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. 12 instant case, the targets of Gagliardi s attempted enticement 13 were not actual minors but adults posing as minors. 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. 18 other arguments challenging his conviction are without merit, we 19 affirm the judgment of conviction. We now join Because Gagliardi s BACKGROUND 20 21 In the 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. 26 who had previously assisted the Federal Bureau of Investigation The informant was a private citizen -2- 1 ( FBI ) in identifying child predators on the Internet. 2 this initial conversation, Gagliardi tried to verify that Lorie 3 was in fact thirteen years old and broached the topic of sex. 4 During 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. 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 . Gagliardi 10 . . no strings attached. 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 In the following weeks, Gagliardi 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. 17 Agent Austin Berglas, who was working in collaboration with the 18 informant. 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. Julie was in fact FBI Special Gagliardi suggested that the two girls come together 23 Taking up Lorie s suggestion, Gagliardi e-mailed Julie, 24 introducing himself as a friend of Lorie, asking for her picture, -3- 1 and requesting that she accompany Lorie if they ever set up a 2 meeting. 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 On September 29, 2005, Gagliardi initiated an instant- 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. 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). During a post-arrest inventory search of 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. 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- Gagliardi moved to 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). 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 The district court 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. 13 in fact, sufficient to demonstrate the elements of intent and 14 substantial step. 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. 18 It also concluded that the evidence at trial was, See id. at *6. The district court further See id. at *3. On May 16, 2006, Gagliardi was convicted by a jury and 19 sentenced to the mandatory minimum imprisonment term of sixty 20 months. 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 The defendant moved to set aside the verdict on 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. 4 States v. Gagliardi, No. 05 CR 1265(SHS), 2006 WL 2597895, at *2 5 (S.D.N.Y. Sept. 7, 2006). 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 United With respect to the sufficiency of the 10 have concluded that Gagliardi had the requisite intent and took a 11 substantial step toward commission of the crime. 12 3. 13 14 See id. at *2- This appeal followed. DISCUSSION 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. 8 Involvement of an Actual Minor 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. 13 U.S.C. § 2422(b). 14 meaning and legislative history unambiguously indicate Congress s 15 intent to criminalize such conduct only when directed toward an 16 actual minor. 17 18 Gagliardi argues that the statute s plain 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. 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- Compare 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. 7 Appellant s Br. at 33-34. 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, 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. 15 unnecessary if the statute already applied to government decoys. 16 We disagree. 17 151 Cong. Rec. S9833 (daily ed. Sept. 8, He argues that such a proposal would be 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. 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- See, e.g., United 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. 11 2006) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 12 (1997)). 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. 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 re Med Diversified, Inc., 461 F.3d 251, 255 (2d Cir. Section 2422(b) explicitly proscribes attempts to See 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. -9- We have held, however, that 1 factual impossibility is not a defense to a charge of attempt in 2 substantive criminal law. 3 336, 352 (2d Cir. 2005). 4 United States v. Weisser, 417 F.3d 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. 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. 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. 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)). As to Gagliardi s first argument, the fact It is See Pension Benefit Guar. Corp., 496 U.S. -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. 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. 8 ( Congress is presumed to be aware of . . . [a] judicial 9 interpretation of a statute . . . . ); United States v. Congress could have been See Lorillard v. Pons, 434 U.S. 575, 580 (1978) 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). 13 score are unconvincing. 14 15 Thus, Gagliardi s arguments on this At the time of § 2422(b) s 1998 amendment, the House Judiciary Committee pointed out that 16 17 18 19 20 21 22 23 24 25 law enforcement plays an important role in discovering child sex offenders on the Internet before they are able to victimize an actual child. Those who believe they are victimizing children, even if they come into contact with a law enforcement officer who poses as a child, should be punished just as if a real child were involved. It is for this reason that several provisions in this Act prohibit certain conduct involving minors and assumed minors. H.R. Rep. No. 105-557, at 19. 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 The interpretation advanced by -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). 5 intended to prohibit this method of enforcement. ). 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 We consider it unlikely that Congress Because such 10 involvement of an actual minor is not a prerequisite to an 11 attempt conviction under § 2422(b). 12 II. 13 Vagueness and Overbreadth 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. 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. 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; He contends that the statute is Appellant s Br. at 38. -12- We reject both challenges 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. 8 also Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926). 9 Section 2422(b) satisfies both of these requirements. Kolender v. Lawson, 461 U.S. 352, 357 (1983); see 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. 13 F.3d at 473; Panfil, 338 F.3d at 1301. 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. 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- See Tykarsky, 446 Although, as Gagliardi See Tykarsky, 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. 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. 8 9 This scienter See Panfil, 338 F.3d at 1301. We likewise reject Gagliardi s overbreadth argument. The 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. 12 Coal., 535 U.S. 234, 255 (2002). 13 2422(b) impermissibly suppresses fantasy speech with adults who 14 happen to be posing as minors. 15 of enticing or attempting to entice a minor when it is knowingly 16 done; it does not implicate speech. 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 Ashcroft v. Free Speech Gagliardi contends that § Yet the statute punishes the act -14- Moreover, when fantasy 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. ). 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 By Gagliardi s own 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. 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. 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 Specifically, Gagliardi argues that because the -15- In 1 decoys to maximize the probability of conviction, and asks us to 2 remand for resentencing. 3 merit. 4 offense that carries a mandatory minimum does not result in 5 executive aggrandizement at the expense of the judiciary. 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 11 Both of these arguments are without First, the executive branch s discretion to charge an See discretion . . . . ). 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. 15 256 (2d Cir. 1997) (quoting United States v. Okey, 47 F.3d 238, 16 240 (7th Cir. 1995)). 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). 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. 23 decision to have its decoys present themselves as age thirteen, 24 rather than fourteen or sixteen. United States v. Gomez, 103 F.3d 249, It has, however, suggested that if a Even if There is nothing outrageous about the government s -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. 8 Cir. 1999). 9 knowing that it could not obtain a conviction for conspiracy, to See United States v. Andrades, 169 F.3d 131, 135 (2d He contends that it was improper for the government, 10 charge him with attempt instead. 11 its face. 12 defendant with a crime that he did not commit instead of or in 13 addition to one that he did commit. 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 This argument is frivolous on There is no requirement that the government charge a See United States v. Bonnet- 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. -17- Appellant s Br. at 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. 5 that, for an uncharged offense to be included, all of its 6 elements must also be elements of the offense charged. 7 States v. Giampino, 680 F.2d 898, 901 (2d Cir. 1982). 8 admits in his own brief that [a]n attempt requires but one 9 person for the offense; a conspiracy requires at least two. We have stated United Gagliardi 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)). 13 did not err in failing to give the jury a lesser included offense 14 charge. 15 C. 17 Sufficiency Challenges 1. 16 Thus, the district court Entrapment 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. 21 government to show that the defendant was predisposed to commit 22 the crime beyond a reasonable doubt. 23 467 F.3d 179, 189 (2d Cir. 2006), cert. denied, 127 S. Ct. 2150 24 (2007). The burden then shifts to the See United States v. Brand, 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. 8 349 (2d Cir. 2006) (per curiam) (citation omitted), cert. denied, 9 --- S. Ct. ----, 76 U.S.L.W. 3009 (2007). United States v. Giovannelli, 464 F.3d 346, 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. 13 (2d Cir. 2002)). 14 Id. (quoting United States v. Schwarz, 283 F.3d 76, 105 Viewing the evidence in the light most favorable to the 15 government, Gagliardi s sufficiency challenge fails. 16 trier of fact could have found beyond a reasonable doubt that 17 Gagliardi was predisposed to commit the offense. 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). 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 -19- A rational Predisposition Here, the defendant 1 the sexual acts he wished to perform with her, and attempted on 2 numerous occasions to set up a meeting with her. 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). 7 F.3d at 189-95 (discussing similar factual circumstances and 8 finding the evidence sufficient to establish predisposition). 9 10 2. Thus, even if See Brand, 467 Criminal Attempt Gagliardi s second attack on the sufficiency of trial 11 evidence pertains to the elements required for an attempt 12 conviction. 13 a defendant had the intent to commit the underlying crime and 14 that he took a substantial step toward its completion. 15 e.g., id. at 202. 16 to prove both of these elements beyond a reasonable doubt. 17 argument is meritless. 18 To establish attempt, the government must prove that See, Gagliardi contends that the government failed This 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. 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 See id. We noted that intent was shown by -20- 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. 5 id. at 202-04. 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. 9 See Finally, we found that the defendant took a See id. at 204. 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. 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). 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. 22 (10th Cir. 2005). 23 for us to reach the government s argument that because the 24 conviction was for attempt to entice rather than attempt to This evidence was A reasonable juror could also have found that See also United States v. Munro, 394 F.3d 865, 870 In light of this conclusion, there is no need -21- 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. 8 were largely cut from his electronic communications and then 9 pasted into word processing files, they were not originals and He argues that because the documents 10 could have been subject to editing by the government. 11 contends that the communications could even have been completely 12 fabricated. 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. 16 Gagliardi Due to these highly suspicious circumstances, We disagree. 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). 19 not particularly high. 20 658 (2d Cir. 2001). 21 satisfied by evidence sufficient to support a finding that the 22 matter in question is what its proponent claims. 23 901(a). 24 reasonable juror could find in favor of authenticity. The bar for authentication of evidence is United States v. Dhinsa, 243 F.3d 635, The requirement of authentication . . . is Fed. R. Evid. Generally, a document is properly authenticated if a -22- United 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. 5 (2d Cir. 1999) (internal quotation marks and citation omitted). 6 We have stated that the standard for authentication is one United States v. Pluta, 176 F.3d 43, 49 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). 12 and Agent Berglas testified that the exhibits were in fact 13 accurate records of Gagliardi s conversations with Lorie and 14 Julie. 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. In this case, both the informant Based on their testimony, a reasonable juror could have 19 CONCLUSION 20 For the foregoing reasons, the judgment of conviction is 21 AFFIRMED. 22 -23-

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