506 F.3d 140 (2nd Cir. 2007), 06-4541, United States v. Gagliardi

Docket Nº:06-4541-cr.
Citation:506 F.3d 140
Party Name:UNITED STATES of America, Appellee, v. Frank GAGLIARDI, Defendant-Appellant.
Case Date:October 22, 2007
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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506 F.3d 140 (2nd Cir. 2007)

UNITED STATES of America, Appellee,


Frank GAGLIARDI, Defendant-Appellant.

No. 06-4541-cr.

United States Court of Appeals, Second Circuit.

October 22, 2007

Argued: September 4, 2007.

Appeal by Defendant Frank Gagliardi from a judgment of conviction of one count of attempt to entice a minor to engage in illegal sexual activity pursuant to 18 U.S.C. § 2422(b), entered in the United States District Court for the Southern District of New York (Sidney H. Stein, Judge). Because we find that § 2422(b) does not require the involvement of an actual minor and that the statute is neither vague nor overbroad, the judgment is AFFIRMED.

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MICHAEL S. POLLOK, New York, N.Y., for Defendant-Appellant.

MARGARET GARNETT, Assistant United States Attorney, of counsel, (Benjamin Gruenstein, Assistant United States Attorney, of counsel, on the brief), for Michael J. Garcia, United States Attorney for the

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Southern District of New York, New York, N.Y., for Appellee.

Before: WALKER, CALABRESI, and SACK, Circuit Judges.

JOHN M. WALKER, JR., Circuit Judge :

Defendant-Appellant Frank Gagliardi appeals from his conviction on one count of attempting to entice a minor to engage in prohibited sexual activity in violation of 18 U.S.C. § 2422(b). He argues that § 2422(b) requires an actual minor victim and is unconstitutionally vague and overbroad. In the instant case, the targets of Gagliardi's attempted enticement were not actual minors but adults posing as minors. We now join several other circuits in holding that 18 U.S.C. § 2422(b) does not require that the enticement victim be an actual "individual who has not attained the age of 18 years" and is neither unconstitutionally vague nor overbroad. Because Gagliardi's other arguments challenging his conviction are without merit, we affirm the judgment of conviction.


On July 7, 2005, Gagliardi, then sixty-two years old, entered an Internet chat room called "I Love Older Men" and initiated an instant-message conversation with "Lorie," an adult government informant posing as a thirteen-year-old girl under the screen name "Teen2HoT4u." The informant was a private citizen who had previously assisted the Federal Bureau of Investigation ("FBI") in identifying child predators on the Internet. During this initial conversation, Gagliardi tried to verify that Lorie was in fact thirteen years old and broached the topic of sex.

Gagliardi contacted Lorie again on August 29, 2005 and had the first of many online conversations in which he expressed his desire to have sex with her and used sexually explicit language to describe the acts he wished to perform with her. Gagliardi even offered to pay Lorie $200 to have sex with him, before telling her, "I want to meet you . . . make love to me anytime . . . no strings attached." In the following weeks, Gagliardi repeatedly tried to convince Lorie to meet him in person, asking her to "tell me where is good for you, I come to pick you up," or offering to meet her in a public place.

On September 1, 2005, Lorie indicated that she was "scared" to meet Gagliardi alone and suggested that he contact her thirteen-year-old friend Julie. "Julie" was in fact FBI Special Agent Austin Berglas, who was working in collaboration with the informant. Gagliardi suggested that the two girls come together to meet him, telling Lorie, "I will dream about you 2 all night." On September 16, 2005, Gagliardi e-mailed Lorie a picture of himself, and the informant sent him a photograph that was taken of her when she was approximately thirteen.

Taking up Lorie's suggestion, Gagliardi e-mailed Julie, introducing himself as a friend of Lorie, asking for her picture, and requesting that she accompany Lorie if they ever set up a meeting. On September 29, 2005, Gagliardi initiated an instant-message chat with Julie during which he asked if she was willing to meet him and described the sexual activities that they could engage in.

Gagliardi subsequently arranged to meet Lorie and Julie in lower Manhattan on the morning of October 5, 2005. FBI agents placed the pre-arranged meeting place under surveillance and arrested Gagliardi as he waited in his car. After being advised of and agreeing to waive his Miranda rights, Gagliardi admitted to the agents that he was at the location to meet two thirteen-year-old girls with whom he

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had previously had sexually explicit online conversations; he denied, however, that he intended to have sex with them. During a post-arrest inventory search of Gagliardi's car, the agents found two condoms and a Viagra pill. Gagliardi was charged with attempt to entice, induce, or persuade a minor to engage in illegal sexual activity, in violation of 18 U.S.C. § 2422(b).

At trial, the government relied on the testimony of the informant and Agent Berglas, together with Gagliardi's electronic communications with "Lorie" and "Julie." Gagliardi moved to dismiss the indictment on the grounds that: (1) the involvement of an actual minor was a prerequisite to a conviction under 18 U.S.C. § 2422(b); (2) the statute was unconstitutionally vague; and (3) the evidence was insufficient to show that Gagliardi had committed an attempt.

The district court (Sidney H. Stein, Judge) denied the motion. See United States v. Gagliardi, No. 05 CR 1265(SHS), 2006 WL 1459850 (S.D.N.Y. May 26, 2006). The district court concluded that § 2422(b) did not require an actual minor victim because the statute provided for criminal liability for attempted enticement of a minor, and one could demonstrate that Gagliardi had the intent and took a substantial step toward committing the crime, as required for attempt liability, even though it was factually impossible for him to commit the substantive offense. See id. at *2. It also concluded that the evidence at trial was, in fact, sufficient to demonstrate the elements of intent and substantial step. See id. at *6. The district court further determined that the statute was not unconstitutionally vague because it was sufficiently definite to provide notice to an ordinary person of what conduct was prohibited. See id. at *3.

On May 16, 2006, Gagliardi was convicted by a jury and sentenced to the mandatory minimum imprisonment term of sixty months. The defendant moved to set aside the verdict on the basis of government entrapment and insufficiency of evidence. The district court denied the motion, reasoning that "[e]ven 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." United States v. Gagliardi, No. 05 CR 1265(SHS), 2006 WL 2597895, at *2 (S.D.N.Y. September 7, 2006). With respect to the sufficiency of the evidence, the court found that based on Gagliardi's numerous sexually explicit communications with Lorie and Julie, his exchange of photographs, and his arrival at the pre-arranged meeting place with condoms and Viagra, a rational juror could have concluded that Gagliardi had the requisite intent and took a substantial step toward commission of the crime. See id. at *2-3. This appeal followed.


Gagliardi raises six issues on appeal. He contends that the plain meaning of 18 U.S.C. § 2422(b) requires that the victim of enticement or attempted enticement be an actual minor and that, because the informant and Agent Berglas were adults posing as minors, his conviction cannot stand; that § 2422(b) is unconstitutionally vague and overbroad; that § 2422(b)'s mandatory minimum sentence violates the separation of powers doctrine or that its imposition in his case resulted from prosecutorial sentencing manipulation; that reversal is required because his conduct could only be construed as conspiring to attempt to violate the law, an offense that is "legally impossible" to commit when the

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co-conspirators are all government decoys, Appellant's Br. at 45; that the evidence at trial was insufficient to support a conviction for attempted enticement or to defeat his entrapment defense; and that the district court erred in admitting into evidence e-mails and transcripts of his instant message chats without sufficient authentication.

I. Involvement of an "Actual Minor"

Section 2422(b) of Title 18 imposes criminal liability on anyone who "knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so." 18 U.S.C. § 2422(b). Gagliardi argues that the statute's plain meaning and legislative history unambiguously indicate Congress's intent to criminalize such conduct only when directed toward an actual minor.

To support his argument, Gagliardi points to Congress's rejection of a 1998 amendment to § 2422(b) that would have expanded the statute to reach a defendant who subjectively believed that the target of his enticement was a minor. Compare H.R. Rep. No. 105-557, at 2 (1998), reprinted in 1998 U.S.C.C.A.N. 678, 678 (proposing an amendment that would extend to one who "knowingly contacts an individual, who has been represented to the person making the contact as not having attained the age of 18 years"), with Protection of Children from Sexual Predators Act of 1998, Pub. L. No. 105-314, § 102, 112 Stat. 2974, 2975-76 (amending § 2422(b) without this change). He contends that in refusing to expand the statute in this manner, Congress "made clear that 18 U.S.C. § 2422(b) only criminalizes an attempt...

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