United States v. Joseph, No. 06-5911-cr (2d Cir. September 9, 2008) (Newman, Walker, Sotomayor, CJJ)
Dennis Joseph, through an internet chat room called “I Love Older Men,” met “Julie,” an FBI agent posing as a thirteen-year-old girl. He began exchanging messages with her describing sexual acts he wanted to perform with her, and over time, they made a plan to meet at a café in Manhattan. As the meeting date grew closer, Joseph balked, but “Julie” made him promise that he would really show up. He did, and was arrested. In a post-arrest statement, he indicated that he had no intention of having sex with “Julie.”
Joseph was charged with enticement, under 18 U.S.C. § 2422(b). At trial, he pursued a lack-of-intent defense. Both he and his wife described him as having a proclivity for muscular women, and asserted that he used the internet primarily for role-playing purposes. Indeed, Joseph explained to the jury that he first believed that “Julie” was a sexually experienced adult who was, like him, role-playing. As their interactions evolved, however, he began to worry that she might actually be thirteen. If so, he planned to tell her that he thought she had been an adult, and that he was too old to be involved with her.
A jury convicted him, and Judge Owen sentenced him to ninety-seven months’ imprisonment.
On appeal, Joseph challenged the jury charge as well as two evidentiary rulings. A divided panel tossed his conviction based on the charge, but also criticized the district court’s evidentiary rulings.
1. The Jury Charge
In its instruction on the “enticement” element of the statute, the court charged: “The government only need 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.”
The court found that this last clause was reversible error. Most of the charge properly focused on the defendant’s intent to entice; that is, the attempt to get the girl to have sex with him. However, the “more appealing” language did “not reflect the requirement of an intent to entice.” According to the circuit, this language permitted the jury to convict “even if Joseph did not intend to entice ‘Julie’ into engaging in a sexual act with him.”
Where an instruction defining one of two alternative grounds is legally erroneous, the conviction should be reversed unless the reviewing court “can determine with absolute certainty that the jury based its verdict on the ground on which it was correctly instructed.” Here, the court could not. The government’s summation improperly shifted the jury’s attention from Joseph’s intent to “Julie”’s, and even invited the jury to convict solely on the “more appealing” alternative.
Judge Walker dissented. After a detailed examination of the trial transcript, he concluded that the error in the charge had not been preserved, and that it did not rise to the level of plain error. In a responsive a footnote, the majority suggested that it would have found plain error if it thought that the error was unpreserved.
2. Evidentiary Rulings
a. Defense Precluded
During his testimony, Joseph said that he had visited a website called “Muscleteens,” and used this to corroborate his claim that his primary sexual interest was in muscular women. He also said that the site mostly contained pictures of girls aged eighteen or older. In rebuttal, the government called an FBI agent who had joined that same site, and who located numerous photos of younger girls. The district court admitted those photos, but prevented the defense from establishing that there was no evidence that Joseph had ever looked at them, or even arguing the point in summation.
The circuit was not pleased. It observed that if those photos “become relevant at a retrial,” Joseph “must be accorded an opportunity to present evidence that he did not view them.”
b. Expert Testimony Precluded
A major theme in Joseph’s defense was that he used the internet primarily for fantasy and role-play. He proffered an expert witness who was going to explain the internet’s distinct fantasy culture, but the district judge precluded the testimony as irrelevant.
The circuit disagreed. It held that this testimony appeared to be “highly likely to assist the jury” in understanding the evidence, and urged the district court to “give a more thorough consideration of” the testimony if offered at a retrial.