Attempt-ation

United States v. Gaqliardi, No. 06-4541-cr (2d Cir. October 22, 2007) (Walker, Calabresi, Sack, CJJ).

This case shuts the door on number of common challenges to convictions under 18 U.S.C. § 2422(b), which makes it a crime to entice a minor to engage in an illegal sexual act, or to attempt to do so. In relatively short order, the court held that: (1) because the statute prohibits attempts, it covers sting operations in which there is no minor victim (here the court joins six other circuits); (2) the statute is not vague, in that its various terms – entice, persuade, coerce, etc., – although not defined, are words in common usage that have ordinary meanings (joining five other circuits); (3) the statute does not criminalize speech that is protected First Amendment and hence is not overbroad.

Gagliardi also made some novel arguments, which the court also rejected. The five-year mandatory minimum that he received does not violate the separation of powers doctrine, and the fact that the FBI agent and his confederate, a private citizen, posed as thirteen-year-olds is not impermissible sentencing manipulation. In addition, the evidence was sufficient both to overcome an entrapment defense and to meet the “substantial step” requirement for an attempt.

Finally, Gagliardi argued that the documentary evidence, mostly emails and transcripts of instant-message chats, were not properly authenticated and thus might have been fabrications. The court was not impressed: The bar for authentication is “not particularly high” and the testimony of the agent and his pal that the transcripts were accurate was enough.