United States v. Valle

• Decision Date: 18 June 2020
• Docket Number: 12 Cr. 847 (PGG)
• Citation: 467 F.Supp.3d 194
• Parties: UNITED STATES of America, v. Gilberto VALLE, Defendant.
• Court: U.S. District Court — Southern District of New York

467 F.Supp.3d 194

UNITED STATES of America,

v.Gilberto VALLE, Defendant.

12 Cr. 847 (PGG)

United States District Court, S.D. New York.

Signed June 18, 2020

Brooke Elizabeth Cucinella, Hadassa Robyn Waxman, United States Attorney's Office, SDNY, Randall Wade Jackson, Willkie Farr & Gallagher LLP, New York, NY, for United States of America.

MEMORANDUM OPINION & ORDER

PAUL G. GARDEPHE, U.S.D.J.:

On March 12, 2013, a jury convicted Gilberto Valle of conspiracy to commit kidnapping (Count One) and of accessing a federal database without authorization in violation of the Computer Fraud and Abuse Act (the "CFAA") ( 18 U.S.C. § 1030 ) (Count Two). (Verdict Form (Dkt. No. 126)) In a June 30, 2014 Memorandum Opinion and Order (the "Opinion"), this Court granted Valle's motion for a judgment of acquittal on his kidnapping conspiracy conviction, but allowed the jury's verdict on the CFAA charge to stand. United States v. Valle, 301 F.R.D. 53 (S.D.N.Y. 2014)¹ The Government appealed this Court's ruling concerning the kidnapping conspiracy charge, and Valle appealed his CFAA conviction. In a 2-1 decision, the Second Circuit affirmed as to the kidnapping conspiracy count, but reversed as to the CFAA charge, finding that the statute cannot be read to criminalize Valle's misuse of police databases. United States v. Valle, 807 F.3d 508, 511-12, 515 (2d Cir. 2015).

Valle now moves for a certificate of innocence under the Unjust Conviction and Imprisonment Act, 28 U.S.C. § 2513 (the "Act"). (Dkt. No. 435) For the reasons stated below, Valle's motion will be denied.

BACKGROUND

At trial, the Government argued that Valle – a New York City Police Department ("NYPD") patrol officer – had conspired with other men to kidnap and sexually torture Kathleen Mangan – his wife – and four other women, including former college classmates and friends of his wife. Valle, 301 F.R.D. at 62. Most of Valle's alleged criminal conduct took place over the Internet, in electronic "chats" with "Moody Blues" -- located in the United Kingdom – "Aly Khan" – located in Pakistan or India – and Michael Van Hise, located in Hamilton, New Jersey. Id.; see also Aug. 8, 2017 Order (Dkt. No. 469) at 3). Valle had "met" his alleged co-conspirators on Dark Fetish Network, a social media website for people interested in sexual torture, cannibalism, asphyxiation, and other fetishes. Id. at 64-65.

Valle provided his alleged co-conspirators with Facebook photographs of the women he was purportedly targeting for abduction, and discussed the logistics of how he intended to kidnap these women, and the various acts of sexual torture he intended to inflict on them. Id. at 60.

Although most of Valle's alleged criminal conduct took place in these electronic "chats," the Government cited other conduct that was allegedly preparatory to the planned kidnappings. For example, Valle conducted unauthorized searches over NYPD computer databases concerning several women he targeted. Id. at 109-10. Valle conducted these improper searches despite training in which he had been instructed that the NYPD's computer databases could only be accessed for a legitimate law enforcement purpose. Id. In conducting searches regarding these women, Valle accessed a variety of federal, state, and local law enforcement databases that contain pedigree and criminal history data. Id. He had no law enforcement purpose for performing these searches. Id. at 62-63, 77. Valle also maintained contact with certain of his "targets," and traveled from New York to Maryland to visit with a "victim" that he was then discussing online with an alleged co-conspirator. Id. at 75-76. Valle also performed Internet searches relating to kidnapping, including "how to kidnap someone"; "how to abduct a girl"; and "how to chloroform a girl." Id. at 76.

In August 2012, Valle's illicit Internet-based conduct was discovered by Kathleen Mangan, his newly married wife. Valle – who worked the 3:00 p.m. to midnight shift for the NYPD – was often up all night "chatting" with his Internet associates about kidnaping, sexually torturing, and murdering his wife and female friends and associates. Id. at 94. Mangan had grown curious about her husband's late-night online activities, and she installed spyware on the couple's shared MacBook laptop computer. Id. at 63-64. Horrified after finding evidence of what Valle was discussing online, Mangan fled with the laptop and the couple's new baby. Id. at 64. After further research on the laptop revealed "chats" in which Valle had discussed at great length sexually torturing and butchering her and other real women, Mangan contacted the Federal Bureau of Investigation. Id. Valle was subsequently charged with kidnapping conspiracy and with violating the CFAA. (Indictment (Dkt. No. 9))

The principal, if not the only, material issue at trial was whether Valle had acted with criminal intent. Valle, 301 F.R.D. at 59. The Government argued that – as to certain of his "chats" – Valle had actually intended to kidnap the referenced women. Id. at 66. The defense argued that all of Valle's Internet chats were sexual fantasy. Id. at 59. The jury concluded that the Government had proved criminal intent, and found Valle guilty on both counts. (Verdict Form (Dkt. No. 126))

In connection with Valle's post-trial motions filed pursuant to Fed. R. Crim. P. 29 and 33, this Court concluded – as to the kidnapping conspiracy charge – that "the Government did not offer sufficient evidence to permit a reasonable juror to distinguish between Valle's alleged ‘real’ chats ... and his conceded fantasy chats...." Valle, 301 F.R.D. at 89. This Court further concluded – as to each of the alleged five "victims" – that no reasonable juror could find that Valle had entered into a genuine agreement to kidnap her, or that Valle ever had the specific intent to commit the crime. Id. at 92, 94, 99-101, 102.

As to each alleged conspiracy to kidnap a woman, the Court found – after exhaustive analysis of thousands of Valle's Internet "chats" – that Valle was engaged in fantasy role-play. The Court summarized its findings as follows:

Valle contends that his Internet chats are fantasy role-play, and that the Government did not prove beyond a reasonable doubt that he and his alleged co-conspirators entered into a "real" agreement to kidnap one or more women. The Government argues that the evidence shows that Valle entered into an illegal agreement to kidnap women with (1) a New Jersey man named Michael Van Hise; (2) an individual located in India or Pakistan who uses the screen name "Aly Khan"; and (3) a man using the screen name "Moody Blues," who lives in England. The alleged kidnapping conspiracy thus spanned three continents.

Although the alleged conspiracy lasted nearly a year, all communications between Valle and his alleged co-conspirators in New Jersey, India or Pakistan, and England took place over the Internet. None of the conspirators ever met or took steps to meet, nor did they ever speak by telephone. This is a conspiracy that existed solely in cyberspace. There is no evidence that the alleged conspirators ever exchanged telephone contact information or accurate information about the area in which they lived, or that they ever knew or sought to learn each other's true identities. Communication between the alleged conspirators was episodic and generally infrequent; months often passed between chats, with the alleged conspirators forgetting what had previously been discussed.

After reviewing thousands of Valle's Internet communications, the Government determined that Valle had discussed kidnapping, torturing, raping, murdering, and/or cannibalizing women with twenty-four individuals. At trial, the Government conceded that – as to twenty-one of these individuals – Valle's communications about kidnapping, torturing, raping, murdering, and cannibalizing women are nothing more than fantasy role-play. The Government nonetheless contends that Valle's communications with the remaining three – Van Hise, Aly Khan, and Moody Blues – reflect a "real" kidnapping conspiracy.

As is discussed in detail below, however, Valle's "chats" with a number of the individuals who the Government concedes are fantasy role-play correspondents are substantively indistinguishable from his chats with Van Hise, Aly Khan, and Moody Blues. Both sets of chats involve discussions about Facebook photographs of women Valle knows; dates for planned kidnappings; prices Valle will charge for kidnapping these women; surveillance Valle has allegedly conducted of these women; the use of chloroform to incapacitate victims; acts of sexual violence that will be perpetrated on these women; and fantastical elements such as human-size ovens and rotisseries, and the construction of soundproofed basements and pulley apparatuses that will be used for purposes of torture.

Moreover, the nearly year-long kidnapping conspiracy alleged by the Government is one in which no one was ever kidnapped, no attempted kidnapping ever took place, and no real-world, non-Internet-based steps were ever taken to kidnap anyone. While the alleged conspirators discussed dates for kidnappings, no reasonable juror could have found that Valle actually intended to kidnap a woman on those dates. For example, under the Government's theory, Valle separately "agreed" with two co-conspirators to kidnap three different women on or about the same day, February 20, 2012. Valle was to kidnap one woman in Manhattan (Government Exhibit ("GX") 430; Trial Transcript ("Tr.") 185–86); lure another to India or Pakistan (GX 417); and kidnap a third in Columbus, Ohio (GX 424; Tr. 239).

No one was kidnapped on February 20, 2012, however, and no one was kidnapped on any other date "agreed to" or discussed by Valle and his alleged co-conspirators. Moreover, neither Valle nor any of his alleged co-conspirators ever even raised the issue of whether a "planned" kidnapping had taken place, and if not, why not. Dates for "planned" kidnappings pass

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