06-5911-cr
U.S.A.. v. Joseph


                         UNITED STATES COURT OF APPEALS

                             FOR THE SECOND CIRCUIT

                                August Term 2007

Heard: May 13, 2008                                Decided: September 9, 2008

                             Docket No. 06-5911-cr

- - - - - - - - - - - - - - -
UNITED STATES OF AMERICA,
     Appellee,

                    v.

DENNIS JOSEPH,
     Defendant-Appellant.
- - - - - - - - - - - - - - -

Before: NEWMAN, WALKER, and SOTOMAYOR, Circuit Judges.

         Appeal from the December 21, 2006, judgment of the United States

District Court for the Southern District of New York (Richard Owen,

District Judge), sentencing the defendant to a term of 97 months for

violating 18 U.S.C. § 2422(b).       Defendant contends primarily that the

jury charge permitted conviction on an invalid alternate basis.

         Conviction vacated and case remanded for a new trial.         Judge

Walker dissents with a separate opinion.

                                  Nathaniel Z. Marmur, New York, N.Y. (Paul
                                    Shechtman, Stillman, Friedman & Shecht-
                                    man, P.C., New York, N.Y., on the
                                    brief), for Defendant-Appellant.

                                  Maria E. Douvas, Asst. U.S. Atty., New
                                    York, N.Y. (Michael J. Garcia, U.S.
                                    Atty., Anjan Sahni, Diane Gujarati,
                                       Asst. U.S. Attys., New York, N.Y., on
                                       the brief), for Appellee.

JON O. NEWMAN, Circuit Judge:

     This criminal appeal primarily concerns a claim that a jury

charge permitted conviction on an invalid alternate basis. Defendant-

Appellant Dennis Joseph appeals from the December 21, 2006, judgment

of the District Court for the Southern District of New York (Richard

Owen, District Judge) sentencing him to 97 months after a jury found

him guilty of using his computer to send messages on the Internet to

entice an individual he believed to be an underaged girl to engage in

unlawful   criminal     sexual    activity,      in   violation    of   18   U.S.C.    §

2422(b).      On appeal, Joseph contends that he did not receive a fair

trial for several reasons, including denial of an expert witness,

denial   of    an   opportunity   to    rebut    prosecution      evidence,   and     an

erroneous jury charge.      We conclude, primarily because of significant

error in the jury charge, that a new trial is required.

                                    Background

     Joseph is 40 years old, married, and has a six-year-old child.

In August 2005, he was arrested for using the Internet to solicit a

person he believed to be a minor to engage in sexual activity, in

violation of 18 U.S.C. § 2422(b).              After a seven-day trial in April

2006, a mistrial was declared when the jury was unable to reach a

verdict.


                                         -2-
      The evidence at the retrial included the following.                      In July

2005, Joseph visited an Internet chat room called “I Love Older Men,”

where he initiated a conversation with an individual with the screen

name1 “Teen2Hot4U,” who purported to be a 13-year-old girl named

“Lorie.” “Teen2Hot4U” was in fact Stephanie Good, a 55-year-old woman

who spends 20 to 50 hours a week surfing the Internet for those she

believes to be sexual predators and reporting her finds to the FBI.

See   United       States   v.   Brand,   467   F.3d   179,   183   (2d   Cir.    2006)

(reporting Ms. Good’s Internet chat-room conversations using the

screen name “Sara”).

      Using the screen name “DSax25” and describing himself as a 40-

year-old professional musician, Joseph had approximately 50 instant

message and email chats with Good, almost all of which he initiated.

Most of the conversations were explicitly sexual and mentioned sexual

acts that Joseph stated he would perform with “Lorie.”                           In one

conversation Joseph mentioned he would be interested in meeting

“Lorie” and asked, “[L]et’s just say...hypothetically.....where would



      1
          “A screen name is an appellation used to identify oneself in a

chat room or when sending instant messages to another computer user.

Although      it    can   be   the   user’s   real   name,    it   is   more   often   a

pseudonym.” United States v. Mitchell, 353 F.3d 552, 554 n.3 (7th Cir.

2003).

                                          -3-
you want to meet?”      “Lorie” sent Joseph a picture, depicting Good at

age 13 or 14 years.

     In a subsequent message, “Lorie” referred to her friend “Julie,”

who was in fact FBI agent Austin Berglas posing as a 13-year-old girl.

See Brand, 467 F.3d at 183 (reporting Berglas posing as “Julie”).

Joseph asked for a picture of “Julie” and suggested that “Lorie” give

“Julie”   his   email   address.   “Lorie”   later   provided   Joseph   with

“Julie’s” screen name.      Joseph then began exchanging messages with

“Julie,” describing sexual acts he wanted to perform with her.

     On August 25, 2005, Joseph initiated contact and told “Julie”

that he wanted to see her and “Lorie.”           On August 30, he again

contacted her and described sexual activity the two might enjoy. That

same day he emailed “Julie,” indicating that he planned to be at

Franklin Street in Manhattan the following day and asked “Julie” to

let him know if that date worked for her.      The two exchanged various

emails coordinating the meeting the next day.         On August 31, Joseph

sent his final message to “Julie,“ and they agreed to meet outside the

Franklin Street Station Café.      “Julie” asked if he was “really gonna

be there” because she did not “wanna be standing there waiting,” and

Joseph replied, “I can’t promise anything cause I’m still nervous and

I don’t know how I will actually feel when I see you.       Is that Okay?”

The remainder of the conversation, as reported by Berglas during his

testimony, was as follows:

                                    -4-
     [“Julie”]: No.

     [Joseph]: Not okay?

     [“Julie”]: You may not show up?

     [Joseph]: I promise I will show up. I promise.

     [“Julie”]: So what do you mean? You may not like me?

     . . .

     [Joseph]: I just may have a problem because I am so much older
     than you

     [“Julie”]: Oh

     [Joseph]: But I will definitely be there and we can see then.
     Okay?

     Later that morning, Joseph showed up at the café, which was under

surveillance, and was promptly arrested while looking into the window.

He was not carrying a condom or a lubricant.   Cf. Brand, 467 F.3d at

186 (Internet enticement defendant arrested with three condoms in

glove compartment of his car).

     After his arrest, Joseph was advised of his rights and spoke with

the arresting agents.   He told Berglas that he came downtown “to meet

a . . . girl that he had met while chatting on the [I]nternet.”

Joseph stated that “you really don’t know the actual age of people you

talk to on the [I]nternet,” but indicated that he believed “Julie” was

13 years old at the time he showed up at the café. Id.   Joseph stated

he had no intention of having sex with “Julie” but wanted to warn her

that “talking to older men on the internet about having sex was

                                 -5-
dangerous.”

      The defense sought to portray Joseph as an individual with a

proclivity for muscular women who never knowingly communicated with a

minor over the Internet and primarily used the Internet for role-

playing purposes.          His wife, Yana, testified about Joseph’s interest

in muscular woman and his Internet addiction to sexual fantasy role-

play.      On cross-examination, Yana testified that her husband was a

member of an Internet group called “Muscleteens,” which, according to

her, solicits pictures of muscular girls between the ages of five and

twenty.

      Joseph testified on his own behalf.             He explained that “DSax25”

was “an idealized version of what . . . Dennis Joseph can’t do but can

on the [I]nternet.”          He testified that the he browsed the Internet

looking for female bodybuilders.                He introduced 25 profiles of the

people on his buddy list,2 21 of whom were adult female bodybuilders.

      Joseph      stated    that   when   he    encountered    “Lorie”   in    what   he

believed was an “adult sex theme[d]” chat-room, he was convinced that

she   was    an   adult     posing   as   a    teenager.      He   claimed    that    her

familiarity with sexual terminology convinced him that she was part of

a “make-believe, pretend world.”               When “Lorie” offered to introduce



      2
          A buddy list is a list of an instant messenger’s “friends,” and

shows a user which of his buddies are online when he is.

                                              -6-
him to “Julie,” he played along.     Joseph believed “Julie” was also a

sexually experienced adult engaged in role-playing.        Joseph testified

that his belief was confirmed when “Julie” sent him a picture of

herself with long nails because he found it difficult to believe that

someone with long nails would be a gymnast.              The Government had

earlier presented a witness who testified that, as a teenager, she had

done gymnastics with long fingernails.

     Joseph also testified that after arranging the meeting with

“Julie,” he worried that he might have misjudged the situation.

Julie’s angry tone when he couldn’t “promise anything” made him think

that she might, in fact, be a teenage girl.       Joseph claimed that he

thought to himself “what am I going to do if [she] actually is a

minor” and that he decided that if she was in fact a minor he was

going to take her into the café, sit down, eat lunch, and explain to

her that he was pretending because he thought she was an adult and

that he was way too old to be involved with her.

     On   cross-examination   the   Government   asked    Joseph   about   his

participation in the “Muscleteens” group, which his wife had mentioned

during her cross-examination. Joseph admitted joining the site, which

describes itself as a group encouraging users to post pictures of

girls “between 5 and 18” showing off their muscles.         He claimed that

when he joined there was a picture on the front cover of a bodybuilder

who was 19 or 20, and that he did not recall seeing pictures of

                                    -7-
younger girls.    He also stated that the few times he looked at the

site,   the   pictures   had   changed,    and   that   each   time   they   were

“predominately 19, 20, 21 and maybe 18-year-old bodybuilders.” Joseph

claimed that he stopped visiting the site when “it started to change.”

     On rebuttal, the Government called Special Agent Sean Watson of

the FBI who testified that in June, 2006, shortly before Joseph’s

trial, Watson had joined the Muscleteens group in an undercover

capacity and had viewed all of the pictures posted in that group

before August 31, 2005, the date of Joseph’s arrest.            Over a defense

objection, the prosecution was permitted to introduce pictures of

young girls from the group.

     The evidence thus framed for the jury the issue of whether Joseph

enticed “Julie” to meet with him for the purpose of engaging in

unlawful sexual conduct with a person he thought was a minor, or

whether, as he claimed, he was engaged only in role-playing, met her

to determine her true identity, and had decided not to have any

involvement with her if she turned out to be a minor.                  By their

verdict, the jury obviously rejected his defense.

                                 Discussion

     The Appellant seeks a retrial because of an alleged error in the

jury charge and several evidentiary rulings claimed to have              denied

him a fair trial.

I. Jury charge

                                     -8-
     Joseph contends that the trial judge committed reversible error

by giving a jury charge that permitted a conviction on either of two

bases, one of which is not an offense.      The indictment charged a

violation of 18 U.S.C. § 2422(b) by using a facility of interstate

commerce to “persuade and entice” a person under 18 to engage in

sexual activity that constitutes a criminal offense.

     The District Judge instructed the jury on each of the three

elements of the crime: (1) use of a facility or means of interstate

commerce; (2) use of the Internet to knowingly attempt to persuade or

entice a person whom the defendant believed to be under 18 years of

age; and (3) that if sexual activity had occurred, the defendant could

have been charged with a crime under New York Law.      The Appellant

challenges the instruction elaborating on the “enticing” element:

     [T]he second element the Government must prove beyond a
     reasonable doubt is that the defendant used the [I]nternet
     to knowingly attempt to persuade or entice a person who the
     defendant believed to be under the age of 18 years to engage
     in any sexual activity.

     . . .

     Now, as for the terms “persuading” and “[e]n[t]i[c]ing,” I
     charge you that these words are common usage and should be
     given their common meaning.     Persuade means to move by
     argument or entreaty or expostulation to a belief, position,
     or course of action--wow, that is a mouthful.       The term
     “entice” means to wrongfully solicit, persuade, procure,
     allure, attract, coax, or seduce, or to lure, induce,
     attempt, incite, or persuade a person to do a thing.

     I instruct you, the government does not need to prove that
     the defendant attempted to wholly create desire where such

                                 -9-
     desire never existed. The government only needs 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.

(emphasis added)

     The     defendant     objected   to    the   italicized   portion   of    the

“enticing” element at both trials and renews his claim on appeal.3



     3
         The Government contends that Joseph did not object at trial to

the alternative language, “or made the possibility of a sexual act

with him more appealing,” and only wanted the language amplified to

include the words “with him,” which had not been in the proposed

charge.     We disagree.



     At the charge conference, defense counsel challenged the “more

appealing” language four times. First, he made clear his objection to

the “more appealing” language by pointing out that under the charge

“if he just makes the idea of sex more appealing, he could be

convicted of a crime which could be just pure cybersex without any

intent to induce or persuade.              And that is not covered by the

statute.”     The “more appealing” language, he argued, “covers a wide

variety of noncriminal conduct.”           Next, when the trial judge read the

portion of the charge from the prior trial, which included the “more

appealing”     language,    defense   counsel     repeated   his   objection   and

                                       -10-
additionally complained that the language did not require a finding of

sexual conduct committed with the defendant.               He stated: “That is

their enticement charge, which, to me, your Honor, covers noncriminal

conduct and lowers the burden of proof and doesn’t mention anything

about having sex with him.” (emphasis added) Then, for a third time,

he argued against the “more appealing” language by stating: “And that

charge, as it is read right there[,] basically says, if you use a

computer to have these kind[s] of conversations and you make sex more

appealing, that is a crime, regardless whether it is with him,

regardless      of   anything    else.”     (emphasis   added)    By     adding    the

emphasized words defense counsel made clear that even if the sexual

conduct   was    stated   to    be   more   appealing   “with    him,”    the     “more

appealing” language, as he had previously stated, remained unlawful.

Finally, after the words “with him” were added, defense counsel made

clear that this addition met one objection but did not meet his more

basic point that the “more appealing” language provided an alternative

basis for conviction without proving enticement.                He stated, “[T]hat

covers that one piece of it.            The other piece is that I think the

charge, as given, lowers the burden of proof and basically says that

you don’t have to persuade or entice.”



     The fact that we recite these four instances of objection to the

                                          -11-
     Where an instruction defining one of two alternative grounds is

legally erroneous, a court must reverse unless it can determine with

absolute certainty that the jury based its verdict on the ground on

which it was correctly instructed. See Griffin v. United States, 502

U.S. 46, 58-60 (1991); Wright, Federal Practice and Procedure, § 485,

at 382 n.16 (2000).

     “[A] conviction under § 2422(b) requires a finding only of an

attempt to entice or an intent to entice, and not an intent to perform

the sexual act following the persuasion.” Brand, 467 F.3d at 202.

Most of the jury instruction on the “enticement” element properly

reflects the required focus on attempting or intending to entice. The

instruction states that the Government need show only “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[.]”

However, the alternative basis for conviction in that instruction--”or

made the possibility of a sexual act with him more appealing”--does

not reflect the requirement of an intent to entice.        Indeed, by

providing the “more appealing” formulation as an alternative to the




erroneous “more appealing” language one at a time does not mean that

we have viewed them “in isolation,” as our dissenting colleague

suggests. See dissenting op. at [4].   Indeed, their combined effect

makes clear the force of defense counsel’s objection.

                                -12-
“convince or influence” language, which had previously been explained

as   examples    of   “enticing,”   the    challenged   language   permitted

conviction even if Joseph did not intend to entice “Julie” into

engaging in a sexual act with him.

     Joseph sought to defend the charge against him by claiming that

he was only engaging in cybersex conversation (simulating sex via

sexual communication over the Internet), without any intent to entice

“Julie” to engage in sexual conduct with him.           He claimed that he

agreed to meet her only to see if she was an adult role-player or

really a child, and that, if she turned out to be a child, he would do

nothing further.      Of course, the jury did not have to credit his

explanation, and the portions of his conversations that could be

understood as intended to make the possibility of a sexual act with

him “more appealing” were evidence supporting an inference that he did

intend to entice her.     But the offense remains “enticing,” and making

a sexual act “more appealing” in the absence of an intent to entice is

not a crime.4     If jurors thought that Joseph only wanted to make

“Julie” think that sexual conduct with him would be appealing, but did

not intend to entice her to engage in such conduct with him, they

would have convicted him for having cybersex conversation, which is

     4
         Cybersex conversation constituting the transfer of “obscene

matter” via the Internet to a person under 16 might well violate 18

U.S.C. § 1470, but Joseph was not charged with that offense.

                                    -13-
not a crime, but not for violating section 2242(b).

     The risk of an improper conviction based only on the “more

appealing” formulation was heightened by the Government’s summation.

First, the prosecutor told the jury that “the defendant wanted Julie

to think that engaging in a sexual act with him would be appealing and

enticing.    And that, ladies and gentlemen, is a federal crime.”

Although the word “enticing” was used, it was used to reflect the

effect on “Julie,” not whether Joseph’s intent was to entice. See

United   States   v.   Dhingra,   371   F.3d   557,   567   (9th   Cir.   2004)

(emphasizing that focus of section 2422(b) is on the defendant, not

the victim); United States v. Rashkovski, 301 F.3d 1133, 1137 (9th

Cir. 2002) (Under section 2422, “it is the defendant’s intent that

forms the basis for his criminal liability, not the victims’.”).

     Then the prosecutor went further and invited the jury to rely

solely on the “more appealing” alternative in the charge.            She told

the jury: “The crime that he’s been charged with is enticement, that

he was attempting to persuade or entice a minor into sexual activity.

As I expect the judge to instruct you, that means the government need

only show that the defendant attempted to make the possibility of a

sexual act with him more appealing to someone he thought was a minor.”

Trial Transcript 1048-49 (emphasis added).        In fact, that was not all

that the Government needed to show.

     The “more appealing” formulation apparently derives from language


                                    -14-
in United States v. Rashkovski, 301 F.3d 1133 (9th Cir. 2002), which

the Government cited to the District Court in support of its request

to include this formulation.    In Rashkovski, a defendant convicted of

enticing women to come to the United States from Russia for the

purpose of prostitution challenged the sufficiency of the evidence on

the ground that the women wanted to leave Russia of their own accord.

See id. at 1136.     The Ninth Circuit affirmed the conviction for

violating 18 U.S.C. § 2422(a) because the defendant had offered to

make and had paid for the women’s travel, and they had accepted his

offer   and   traveled   with   his   assistance.   See   id.    at   1137.

“Enticement,” the Court stated, “merely requires that [the defendant]

have convinced or influenced [the women] to actually undergo the

journey, or made the possibility more appealing.” Id.           There is no

indication that the “more appealing” formulation was included in the

jury charge at all, much less as an alternative to a required finding

of enticement.     We agree with the Ninth Circuit that making a

possibility more appealing can be evidence of enticement, but we do

not read that Court’s opinion as a ruling that doing so can be a basis

for conviction under either subsection of section 2422 in the absence

of enticement. See United States v. Tykarsky, 446 F.3d 458, 473 (3d

Cir. 2006) (“‘persuade,’ ‘induce,’ ‘entice,” and ‘coerce’ . . . have

a plain and ordinary meaning that does not need further technical

explanation”); United States v. Kaye, 451 F. Supp. 775, 783 (E.D. Va.

                                  -15-
2006) (convicting defendant of violating section 2422(b) based on

plain meaning of “entice” without regard to the “more appealing”

formulation from Rashkovski).

     Because the jury charge permitted conviction on an invalid basis

and because the risk that the jury grounded its verdict on that basis

is not insubstantial, the defendant is entitled to a new trial.5



     5
         Our dissenting colleague, believing the error not to have been

preserved, declines to find plain error because he views the evidence

of guilt as “conclusive.” Dissenting op. at [16].     Even if the error

had not been preserved, the test for affirming, notwithstanding

submission to a jury of an invalid legal basis for conviction, is not

whether there is conclusive evidence of guilt under the valid basis.

A verdict must be set aside where it “‘is supportable on one ground,

but not on another, and it is impossible to tell which ground the jury

selected.’” Griffin, 502 U.S. at 52 (quoting Yates v. United States,

354 U.S. 298, 312 (1957)); see United States v. Foley, 73 F.3d 484,

494 (2d Cir. 1996) (conviction reversed for plain error where court

“unable to determine” whether finding of guilt rested on valid or

invalid basis); United States v. Scotti, 47 F.3d 1237, 1246 (2d Cir.

1995) (order for new trial affirmed “[b]ecause the jury may have

reached its verdict” on invalid basis).



                                   -16-
II.   Evidentiary rulings

      Since the case must be retried, we comment briefly on two

evidentiary rulings, challenged on appeal, that are likely to arise on

retrial.

      (a)     “Muscleteens” photos.

      The Appellant contends that it was error for the prosecution to

introduce a group of photos of young girls displayed on an Internet

website called “Muscleteens,”6 although the main objection is that once


      Our dissenting colleague relies on United States v. Skelly, 442

F.3d 94 (2d Cir. 2006).        The error in Skelly was the submission of an

incomplete charge on a valid alternative legal theory, not, as here,

the   submission    to   the   jury   of   an   invalid   alternate   basis   for

conviction that did not state a criminal offense.            Moreover, because

the properly charged basis in Skelly “occupied the entirety of [the

prosecution’s] opening statement and all but a few remarks in its

closing statement, “ id. at 99, we were able to conclude that it was

“overwhelmingly likely that any reasonable juror would have convicted

on the basis of the Government’s primary theory.” Id.           In the pending

case, we cannot possibly reach that conclusion in light of the

Government’s summation urging conviction “solely” on the invalid

basis.
      6
          These photos had not been introduced at the first trial, which

resulted in      a mistrial.

                                       -17-
the photos were in evidence, the defense was unfairly prevented from

showing that Joseph had not looked at them.

      Joseph testified that he had joined numerous Internet member

group concerned with bodybuilding, including one called “Muscleteens.”

He indicated that this site “was made for young girls to show off

their muscles” and acknowledged that a document describing the site

stated that pictures could be posted of girls between 5 and 18.                     He

said that “[t]he pictures change, some weekly, some monthly”; that

when he joined the group, the picture on front of group’s site was an

adult bodybuilder; that he normally looked at photos of 18-21-year-

olds; and that when the site “started to change” he “didn’t go back

and visit” anymore.

      At the conclusion of the defense case, the prosecution indicated

it   wanted    to   call    an   FBI   agent      to   introduce   photos   from    the

Muscleteens group for the purpose of rebutting Joseph’s testimony that

the photos were predominately of 18- and 19-year-old girls.                   Defense

counsel argued that the images were “remarkably prejudicial” and that

there was nothing “to suggest to the jury that [Joseph] had looked .

. . at all this stuff.”           The prosecutor responded, “That’s not what

we’re suggesting,” and argued that the photographs should be admitted

to   rebut    Joseph’s     testimony   that       Muscleteens    “had   predominately

pictures of 19- to 20-year-old girls.”                   The Judge overruled the

defense      objection     and   allowed   the     prosecution     to   introduce   the

                                           -18-
pictures.     Many of the photos appeared to be girls under 18.

     On cross-examination, defense counsel sought to ask Watson if

there was any evidence that Joseph had looked at the Muscleteens

photos     that    Watson    had   introduced.          The   Judge     sustained       the

prosecutor’s objection and stated, “The subject matter is not to be

explored.”

     Having       introduced    the    photos    for    the     limited       purpose   of

challenging Joseph’s credibility on one point and disclaimed any

broader purpose, the prosecution then argued in summation that the

photos were “devastating evidence of the defendant’s predisposition”

to entice young girls.7        When defense counsel sought to respond in his

summation that there was no evidence that Joseph had ever looked at

the Muscleteens photos, the Court cut off the argument, stating that

“[Watson] was not proffered for more than one issue, and that was all



     7
         Having told the jury that the photos were “devastating evidence,”

the Government is somewhat disingenuous in now arguing that any error

in admitting them was harmless.                 The prosecutor also engaged in

dubious     conduct   by    inviting   the   jury      to   consider    “why     [defense

counsel] got so excited about these photos.”                  Cf.     United States v.

Gonzalez, 488 F.2d 833, 836 (2d Cir. 1973) (reversible error found

where     prosecutor’s      derogatory    remarks       about       defense     counsel’s

objection coupled with statements in summation prejudiced defendant).

                                         -19-
that the court will permit you to inquire about.      So don’t go there.”

     Although admission of the Muscleteens photos was not erroneous,

if they become relevant at a retrial, the defendant must be accorded

an opportunity to present evidence that he did not view them.

     (b)     Expert Testimony.   Also likely to recur at retrial is the

issue of whether the defendant’s expert witness, Dr. James Herriot,

should be permitted to testify about role-playing in the context of

sexually explicit conversations on the Internet.        Dr. Herriot is an

Associate Professor of Clinical Sexuality at the Institute of Advanced

Human Sexuality in San Francisco.         Dr. Herriot proposed to testify

about a distinct culture of the Internet in which one can become a

“fantasy character[].”      He would also explain the realities and

motivations of online role-playing via chatrooms and email.           Dr.

Herriot wrote his Ph.D. thesis on sexual communication on the Internet

and had testified previously on the subject in federal court.8        The

District Court sustained the Government’s objection to Dr. Herriot’s

testimony, primarily on the ground of relevance.9

     8
         In a case similar to Joseph’s, Dr. Herriott’s testimony was

admitted, over the Government’s objection, and the defendant was

acquitted. See United States v. Wragg, 01 Cr. 6107, docket entries

nos. 86, 88, 90, 97.
     9
         An issue also arose as to the timeliness of the defense’s

proffer.    To the extent that timeliness concerned the District Court,

                                   -20-
     Although the admission or exclusion of expert testimony is

committed to the discretion of the court, see United States v.

DiDomenico, 985 F.2d 1159, 1163 (2d Cir. 1993), we urge the District

Court to give a more thorough consideration to the defendant’s claim

to present Dr. Herriot’s testimony, in the event it is offered at

retrial.

     Dr. Herriot’s field of study and experience qualified him to

offer    relevant    testimony.      He    has   conducted   a   large   number    of

interviews and studied chat-room conversations to understand sexual

behavior on the Internet.           Social science “research, theories and

opinions cannot have the exactness of hard science methodologies,”

Jenson v. Eveleth Taconite Co., 130 F.3d 1287 (8th Cir. 1997), and

“expert testimony need not be based on statistical analysis in order

to be probative.” United States v. Long, 328 F.3d 655, 66 (D.C. Cir.

2003).    “[P]eer review, publication, potential error rate, etc. . . .

are not applicable to this kind of testimony, whose reliability

depends heavily on the knowledge and experience of the expert, rather

than the methodology of theory behind it.” United States v. Hankey,




there may have been a misunderstanding of Fed. R. Crim. P. 16(b)(1)(C)

since    the    Government   made   no    request   for   disclosure     of   defense

experts.       In any event, a timeliness issue is not likely to arise at

retrial.

                                          -21-
203 F.3d 1160, 1169 (9th Cir. 2003).              In such cases, the place to

“quibble    with   [an    expert’s]    academic     training”    is   “on   cross-

examination” and goes to his “testimony’s weight . . . not its

admissibility.” McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1043 (2d

Cir. 1995).

     To    the   extent   that   the   District    Court   was   concerned   that

Herriot’s testimony would rely on hearsay, that would not be a valid

objection. See Fed. R. Evid. 703 (“If of a type reasonably relied upon

by experts in the particular field in forming opinions or inferences

upon the subject, the facts or data need not be admissible in evidence

in order for the opinion or inference to be admitted.”).                    Social

science experts commonly base their opinions on interviews.

     Dr. Herriot’s opinions appear to be highly likely to assist the

jury “to understand the evidence.” Fed. R. Evid. 702. Defense counsel

represented that Dr. Herriot

     will testify that . . . [a] major component of the entertainment
     on the Internet is the rapid repartee, in addition to having
     imaginative fun.   When engaging in Internet role-play, people
     love to experiment with their personas. Typically, people weave
     a bit of truth about themselves with a great deal of imagination
     and/or exaggeration.     The Internet presents [a] competitive
     entertainment. . . . Sexually explicit conversations tend to
     drive the chatting relationship, and are fueled by the anonymity
     of the created personas. . . . Often, chatters become curious
     about who is “behind the screen.”       There are many methods
     chatters use to “de-mask” the other participant: such as asking
     for a photograph, attempting a phone conversation, asking for
     information that can be independently verified or even attempting
     to meet in a public space.



                                       -22-
      Although     some   jurors    may   have   familiarity    with    Internet

messaging, it is unlikely that the average juror is familiar with the

role-playing activity that Dr. Herriot was prepared to explain in the

specific context of sexually oriented conversation in cyberspace.

Many prospective jurors at Joseph’s trial acknowledged that they had

never visited a chat-room, and professed no understanding of what

occurs there.       Obviously a jury would not have to accept Joseph’s

claim that he planned only to meet “Julie” to learn who she was and

that he lacked any intention to engage in sexual conduct with her, but

the   frequent     occurrence      of   such   “de-mask[ing]”   of     chat-room

participants might provide support for his defense.

      Numerous courts have upheld the admission of expert testimony to

explain conduct not normally familiar to most jurors. See, e.g.,

United States v. Hayward, 359 F.3d 631, 635 (3d Cir. 2004) (modus

operandi of child molesters); United States v. Alzanki, 54 F.3d 994,

1005-06 (1st Cir. 1995) (tendency of abuse victims to remain with

their abusers); United States v. Azure, 801 F.2d 336, 340 (8th Cir.

1986) (inability of children to distinguish truth from fantasy).            Dr.

Herriot’s testimony would seem to be similarly relevant.10



      10
           Our dissenting colleague sees little need for Dr. Herriot’s

testimony because the role-playing explanation for the defendant’s

conduct was adequately presented by the defendant’s own testimony. See

                                        -23-
                              Conclusion

     Primarily because the jury was permitted to convict on an invalid

legal basis, the conviction may not stand. The conviction is vacated,

and the case is remanded for a new trial.




dissenting op. at [21].   However, when the Government implores a jury

to find the defendant and his explanation not credible, we think the

presentation of that explanation from a qualified expert would be

significant, especially where the explanation is not one with which

jurors are likely to have familiarity.

                                 -24-
USA v. Joseph
No. 06-5911-cr

JOHN M. WALKER, JR., Circuit Judge, dissenting:

     I disagree with the majority’s conclusion that Joseph objected to

the “more appealing” language at trial and therefore preserved that

challenge for appellate review.    Even if Joseph initially raised such

an objection – and I do not believe he did so with sufficient clarity

or particularity – the record shows that by the end of the charge

conference, he had abandoned it.

     Because Joseph did not preserve his challenge at trial, we should

review that claim for plain error, United States v. Cohen, 427 F.3d

164, 172 (2d Cir. 2005), “which is a very stringent standard requiring

a serious injustice or a conviction in a manner inconsistent with

fairness and integrity of judicial proceedings,” United States v.

Walsh, 194 F.3d 37, 53-54 (2d Cir. 1999) (internal quotation marks and

citation omitted).   Under the plain error standard, Joseph bears the

burden of showing that he was prejudiced, United States v. Logan, 419

F.3d 172, 179 (2d Cir. 2005), but he cannot do so because there was

conclusive evidence of his guilt so that any error in the jury charge

did not “affect[] the outcome of the district court proceedings,”

United States v. Skelly, 442 F.3d 94, 99 (2d Cir. 2006) (internal



                                   -25-
quotation marks and citation omitted).         I would therefore affirm the

judgment of conviction.

I.   Joseph’s Objections at the Charge Conference

     The charge conference included an extensive discussion regarding

the following sentence in the proposed charge: “The government only

need[] show, beyond a reasonable doubt, the defendant . . . made the

possibility of the sexual activity more appealing.” App. at 150.5-.6.

There was some additional, albeit brief, discussion of the portion of

the charge defining the terms “persuade” and “entice.”

     Three purported objections to these instructions are at issue in

this case, the first of which I believe was not properly made and, in

any event, was abandoned.     For ease of reference, I will refer to them

as objections A, B, and C.    Joseph argues, and the majority maintains,

that he objected (A) to the language that the government only needed

to show that Joseph “made the possibility of the sexual activity more

appealing.”    The objection, of course, would be that this language

leaves   out   enticement,   which   is   a   part   of   the   crime,   although

enticement is charged elsewhere, including as an alternative theory in

the same sentence.    The government argues, and I agree, that at trial

Joseph did not make objection A (to the “more appealing” language

itself); he only objected (B) to the omission of the words “with him,”


                                     -26-
which he wished to insert just before “more appealing,” and (C) to the

proposed charge’s inclusion of explicit definitions for the terms

“entice” and “persuade” as opposed to a more general allusion to the

plain meaning of those terms.

     On my reading of the record, the charge conference proceeded in

three “phases.”    During phase I, Joseph made the broad-brush argument

that the proposed charge, which, as the majority notes, was adapted

from a Ninth Circuit case, see Maj. Op. at [14], “impermissibly lowers

the burden of proof,” App. at 150.2.             Rather than identify specific

language (such as the “more appealing” language) as erroneous, defense

counsel argued that “this charge, here, covers a wide variety of

noncriminal conduct.”         App. at 150.3 (emphasis added).

     During    phase    II,    defense   counsel,    the   government,   and   the

district court focused their discussion on objection B. Specifically,

the defense objected that “nowhere else in the charge does it say[]

that [the defendant] needs to be using [the Internet] to persuade or

induce a minor to engage in a sexual act with him.”             Id. at 150.3-.4

(emphasis     added).         The   government    countered    that   “everybody

understands that what we’re charging him with is making the act of

sexual contact more appealing with him, not with somebody else.”               Id.

at 150.5.   And the district court agreed that “[t]here is no question


                                         -27-
. . . here what we’re talking about.”           Id. at 150.7.   Objection A was

at no point a subject of discussion in phase II.

      During phase III, defense counsel affirmatively requested that

the charge include the “more appealing” language, so that the phrase

would read, “[s]exual activity ‘with him’ more appealing.”             Id.    The

government agreed to the insertion of “with him” into the “more

appealing” clause, and the district court accepted the change.                See

id.   at   150.8.     During   this    phase,   defense   counsel   also   raised

objection C when he asked the district court to charge the plain

meaning of “entice” or “persuade” without added embellishment.               Id.

      Noticeably absent from the charge conference transcript is any

explicit discussion during any phase between defense counsel, the

government, and the district court of objection A.              Had there been

such a discussion, I have little doubt that the conscientious district

judge, who labored mightily over the charge, would have addressed the

problem.

II.   Unpreserved Error

      Applying      well-established    policy    considerations    and    Second

Circuit case law, it is evident that objection A was not preserved for

two reasons.        First, even if some of defense counsel’s statements

could, when viewed in isolation and taken outside of their context, be


                                       -28-
construed as objecting to the “more appealing” language itself,1 any

such objection was stated in terms too general and indistinct to

apprise the district court (and the government) of the position that

Joseph now asserts on appeal.       Second, any such objection was plainly

abandoned during phase III when defense counsel personally requested

and affirmatively accepted the language, “made the possibility of

sexual activity with him more appealing.”

     A.      Insufficient Clarity

     Under Federal Rule of Criminal Procedure 30(d), “[a] party who

objects to any portion of the instructions . . . must inform the court

of the specific objection and the grounds for the objection before the

jury retires to deliberate.” Fed. R. Crim. P. 30(d) (emphasis added).

As this court has recognized, the specificity requirement is not to be

taken lightly, because it helps to ensure that the objection is

squarely and clearly presented to the district court, which guarantees


     1
         For example, the majority notes defense counsel’s statement that

“the jurors are thinking, if he just makes the idea of sex more

appealing, he could be convicted of a crime which could be just pure

cybersex without any intent to induce or persuade.        And that is not

covered by the statute.”     App. at 150.4; see also Maj. Op. at [10] n.3

(quoting this language).     As I illustrate below, when this statement

is viewed in its context, it is clear that the government and the

district court only perceived the defense as raising objection B.

                                     -29-
that the court of first instance has a meaningful opportunity to

consider and correct any error prior to review by a court of appeals.

See United States v. Weintraub, 273 F.3d 139, 145-46 (2d Cir. 2001)

(applying plain error review to defendant’s jury charge objection

because “it was insufficiently particular to raise the question now

presented and thus preserve it for appeal.    By failing to draw the

district court’s attention to the problem that Weintraub now complains

of, the defendants deprived the district court of the opportunity to

correct its putative error.”); see also Skelly, 442 F.3d at 99

(conducting plain error review because “[t]he defendants . . . failed

to raise a specific objection to the omission of [certain] language

from the charge”).

     The importance of preservation for purposes of appellate review

cannot be understated:

          Rule 30 provides that no party may assign as error any
     portion of the charge unless that party objects to it before the
     jury retires to consider its verdict.      The purpose of this
     provision is to give the trial court an opportunity to correct
     any error or omission in the charge before the jury begins its
     deliberations. If prompt objection is made as the rule requires,
     the error can then be corrected. As the Supreme Court has said:

          Orderly procedure requires that the respective adversaries’
          views as to how the jury should be instructed be presented
          to the trial judge in time to enable him to deliver an
          accurate charge and to minimize the risk of committing
          reversible error.

          The objecting party must state distinctly the matter to
     which it objects and the ground of its objections. The objection
     must be specific enough so that the trial court can perceive the
     basis on which it is claimed that the instruction was erroneous.

                                -30-
     . . . Accordingly, where the court and opposing counsel
     understand the defendant’s position, even a vague objection
     should be held sufficient.

2A Charles Alan Wright, Federal Practice and Procedure § 484 (3d ed.

2000) (emphasis added) (footnotes omitted) (quoting Henderson v.

Kibbe, 431 U.S. 145, 154 (1977)).    Conversely, where the trial court

and opposing counsel do not understand the defendant’s objection

because it was not “state[d] distinctly,” the requirements of Rule 30

have not been met.

     A defendant’s failure to state his objection with sufficient

clarity to apprise the district court of his position results in plain

error review.   Cf. United States v. Lemire, 720 F.2d 1327, 1343 n.25

(D.C. Cir. 1983) (“Where, as here, the defense fails to specify

sufficiently the portion of the charge to which it objects, and

therefore fails to comport with Rule 30, we will reverse only if the

instruction is ‘plain error’ – if the error causes a substantial

miscarriage of justice. . . . Of course, for those objections that the

defendants raised with sufficient particularity to apprise the trial

judge of their dissatisfaction, we do not demand ‘plain error’ in

order to reverse.”).   When, as here, an objection is made at trial but

is at best ambiguous, or when the appellant’s objection focuses on a

different problem than that targeted on appeal, it is unpreserved.

See United States v. Vasquez, 267 F.3d 79, 87 (2d Cir. 2001) (“During

the charge conference, Vasquez did object to the aspect of the charge



                                 -31-
involving heroin and cocaine trafficking, but the basis for his

objection is ambiguous. . . . Where an appellant states distinctly,

under Rule 30, the grounds for objecting the charge below, but urges

a different ground on appeal, the objection is not properly preserved

on   appeal         and   we   therefore   review    for    plain   error.     Vasquez’s

situation falls squarely within this rule . . . .”).

      In this case, if defense counsel meant to object to the inclusion

of the “more appealing” language itself (objection A), he never made

this clear at trial.             His objection was too general and imprecise to

apprise the district court that the defense was seeking the deletion

of the “more appealing” clause,2 and it therefore failed to provide the


        2
            At no point did defense counsel make explicit that he was

advocating the omission of the “more appealing” language altogether.

Although he specifically requested the insertion of “with him,” he

never requested the removal of “more appealing.”                       Furthermore, his

objections about “cover[ing] noncriminal conduct” were more general

objections to “the charge,” not specific objections to the “more

appealing” language.             See App. at 150.6 (“That is their enticement

charge, which, to me, your Honor, covers noncriminal conduct and

lowers the burden of proof . . . .” (emphasis added)); id. at 150.3

(“And        this    charge,    here,   covers   a   wide    variety    of   noncriminal

conduct.” (emphasis added)); see also id. at 150.7 (“[T]he charge, as

given, lowers the burden of proof . . . .).                   A general objection to

                                            -32-
district court an opportunity to correct the error.     Nor did defense

counsel’s statements at trial adequately inform opposing counsel of

the position that Joseph now asserts on appeal.    The record shows that

both the district court’s and the government’s responses throughout

the charge conference addressed and focused solely on the omission of

“with him,” demonstrating that it was this objection – and not any

broader challenge to the “more appealing” language – that was in fact

conveyed to and perceived by the district court and the government.3



“the charge” does not indicate what particular aspect of the proposed

enticement charge defense counsel found problematic.
     3
         The majority construes defense counsel’s statement, “if he just

makes the idea of sex more appealing, he could be convicted of a crime

which could be just pure cybersex without any intent to induce or

persuade,” App. at 150.4, as raising objection A.          However, the

responses from the government and district court – and indeed defense

counsel himself – centered on the insertion of “with him,” indicating

that their understanding was that defense counsel was actually raising

objection B:



     The Defense:      But it needs to be, he needs to be attempting to

                       induce or persuading someone he believes to be a

                       minor to engage.



                                   -33-
The Court:        Yeah.



The Defense:      The statute is intended that he engage in a

                  sexual act with him, and –



The Government:        No, to make it more appealing to someone.



The Defense:      With him, but the way that charge –



The Government:           That’s not necessarily true.   It could be

                       that he makes it more sexually appealing to

                       a friend of his, too, but in this particular

                       case, yes, everybody understands that what

                       we’re charging him with is making the act of

                       sexual contact more appealing with him, not

                       with somebody else.



The Defense:      You have no problem to amending the charge to a

                  word like that?



The Government:        To with him?



                                -34-
     The Court:        No –



     The Defense:      You need to prove that he was intended to induced

                       or persuaded [sic], whichever, induce or entice .

                       . . or persuade in equal contact with him.             That

                       would be illegal.



     The Government:          It   is   in     the   charge.   It   is   under the

                              government’s theory of the case.



     The Defense:      I remember that it wasn’t in there last time . .

                       . .



Id. at 150.4-.5 (emphasis added).



     In this exchange, defense counsel never argued for the complete

omission of the “more appealing” language from the charge.                Instead,

he asked the government to agree to amend the charge to add “with him”

to that clause.   Indeed, the suggestion to expand upon or clarify the

“more appealing” clause is incompatible with the suggestion to strike

it in its entirety because the former presumes retention of the “more

appealing” language.    See also id. at 150.7 (The Defense: “It does no

                                        -35-
     Furthermore, during the charge conference, defense counsel had

several opportunities to voice an objection to the “more appealing”

language itself and make clear to the district court and to the

government that he was objecting to more than just the omission of

“with him.”     Defense counsel, however, remained silent.4           Thus, any



one any harm to clarify it by adding it [i.e., “with him”] to that

section of the charge . . . .”).
     4
         For example, during phase II of the charge conference, defense

counsel said nothing during the following colloquy:



     The Court:        Okay.     I’m    looking     at   the   paragraph    at the

                       bottom.   I instruct you . . . . The government

                       only needs show, beyond a reasonable doubt, the

                       defendant attempted to convince or influence the

                       victim to engage in a sexual act or made the

                       possibility      of    the     sexual     activity     more

                       appealing.



                       Now, I gather that stays in, right?



     The Government:        Right.



                                       -36-
broader objection that defense counsel may have raised (or intended to

raise) was not made clear to the district court, which cannot fairly

be said to have been apprised of the argument.   Cf. Freytag v. Comm’r,

501 U.S. 868, 895 (1991) (Scalia, J., concurring in part, joined by

O’Connor, Kennedy & Souter, J.J.) (“The very word ‘review’ presupposes

that a litigant’s arguments have been raised and considered in the

tribunal of first instance.”).

     B.      Forfeiture Through Express Acceptance

     In this case, not only did the defendant fail to make a clear

objection to the “more appealing” language itself, but any such

argument that could be gleaned from the record was plainly abandoned

during phase III of the charge conference, when defense counsel

expressly accepted the “more appealing” language by requesting that

the charge read, “[s]exual activity ‘with him’ more appealing,”5 and



     The Court:        Now, where does – where does the – the enticement

                       charge go, and what does it knock out, or – or

                       does it not knock anything out.



Id. 150.5-.6 (emphasis added).       Such passive behavior by defense

counsel, wholly at odds with the defendant’s argument on appeal that

the specific objection to that language was raised below, is telling.
     5
         That portion of the charge conference proceeded as follows:



                                   -37-
The Government:          Basically, you just want it to say . . . The

                         government        only      need       show     beyond     a

                         reasonable         doubt        that    the     defendant

                         attempted     to     convince      or    influence       the

                         victim to engage in sexual activity.                     You

                         want to add the words “with him,” or made

                         the possibility of the sexual activity more

                         appealing.        And that covers your objection?



The Defense:      Sexual activity “with him” more appealing.



The Government:          Two words “with him” or made the possibility

                         of   the    sexual    activity         “with    him”   more

                         appealing?



The Defense:      And that covers that one piece of it.                  The other

                  piece is that I think the charge, as given,

                  lowers the burden of proof and basically says

                  that   you   don’t       have     to    persuade      or   entice.

                  [Objection C] And we’re asking for the plain

                  meaning and I don’t really understand why we

                  wouldn’t just take the plain meaning of entice or

                                    -38-
then turned the discussion to objection C.               App. at 150.7.      This court

has held that such behavior constitutes forfeiture of the objection

and   will   result    in     plain   error   review.         See   United   States   v.

Giovanelli, 464 F.3d 346, 351 (2d Cir. 2006) (per curiam) (“[I]f a

party invited the charge or affirmatively waived his position,” []he

has waived any right to appellate review of the charge.                      Giovanelli

has waived his challenge to Judge Rakoff’s jury charge. . . . [W]hen

Judge Rakoff, responding to Giovanelli’s objection, presented the

parties with a revised draft jury charge that no longer included the

‘natural     and    probable      effect’     language,       Giovanelli’s     counsel

acknowledged that she was happy about that particular omission. Thus,

there was ‘approval or invitation’ of the omission (indeed, both).”

(alteration,       internal    quotation      marks,    and    citations     omitted));

Weintraub, 273 F.3d at 146 (“Weintraub also argues that counsel

properly objected during the charge conference.                     To the contrary,

defense counsel not only did not seek the instruction that Weintraub

now   argues   for,     they     affirmatively         accepted     the   government’s

formulation. . . . We consequently review for plain error.”).

      Joseph also forfeited objection A when he failed to correct the

government’s and the district court’s apparent understanding that he



                         persuade as Sand recommends.



App. at 150.7-.8 (emphasis added).

                                         -39-
was only raising objection B.     After the defense expressly requested

the insertion of “with him,” the government replied, “if all defense

attorney is asking is that we put in “with him” . . . and made the

possibility of sexual activity ‘with him’ more appealing . . . into

the charge, we don’t have an objection.”           App. at 150.8.    The

government thereby gave defense counsel an opportunity to correct any

misunderstanding and point out other objections.       Rather than raise

objection A and argue that the “more appealing” language should be

struck in its entirety, defense counsel reiterated objection C, that

the original charge erroneously included explicit definitions for

“persuade” and “entice” rather than a simple reference to their plain

meaning.     He stated, “And just the other issue concerning the plain

meaning.”6 Id. Joseph therefore forfeited any previous objection that


     6
         Earlier during phase III, defense counsel had stated:



     And that covers that one piece of it.     The other piece is that I

     think the charge, as given, lowers the burden of proof and

     basically says that you don’t have to persuade or entice.       And

     we’re asking for the plain meaning and I don’t really understand

     why we wouldn’t just take the plain meaning of entice or persuade

     as Sand recommends.



App. at 150.7-.8 (emphasis added).        The majority interprets “[t]he

                                   -40-
other piece” of defense counsel’s objection as an objection that even

with the addition of “with him,” the “more appealing” language was

erroneous because it permitted the jury to convict without finding

that the defendant persuaded or enticed.       See Maj. Op. at [11] n.3.

In other words, the majority asserts that defense counsel continued to

raise objection A, even after objection B had been resolved to his

satisfaction.



     As an initial matter, this reading ignores the fact that defense

counsel stated that “the charge, as given, lowers the burden of proof

and basically says that you don’t have to persuade or entice.”           App.

at 150.7-.8 (emphasis added). At that point in the charge conference,

the district court had not yet accepted the addition of “with him.”

Defense   counsel’s   statement   thus   referred   back   to   the   original

proposed charge, and not to the charge as amended to include “with

him.” I therefore disagree with the majority that defense counsel was

arguing that the “more appealing” language was erroneous even with the

addition of “with him,” and that “the other piece” of his objection

was to the “more appealing” language itself.



     Plainly, “the other piece” of the objection was to the expansion

of the meanings of “persuade” and “entice” in the original charge –

                                   -41-
he might have made to the “more appealing” clause itself, and, under

Second Circuit case law, we should review such a challenge for plain

error.

III. Applying Plain Error Review

     Although Weintraub states, “[i]n general, it is the rare case in

which an improper instruction will justify reversal of a criminal

conviction when no objection has been made in the trial court,” 273

F.3d at 145 (alteration omitted) (quoting Henderson, 431 U.S. at 154),



objection C.     The original charge stated: “Persuade means to move by

argument or entreaty or expostulation to a belief, position, or course

of action . . . .       The term ‘entice’ means to wrongfully solicit,

persuade, procure, allure, attract, coax, or seduce, or to lure,

induce, attempt, incite, or persuade a person to do a thing.”



     Here, defense counsel was arguing that the inclusion of explicit

definitions or synonyms for “persuade” and “entice” lowered the burden

of proof and would, in effect, allow the jury to convict without

finding that Joseph persuaded or enticed.                 For example, under the

charge, as given, the jury could convict upon finding that Joseph

“wrongfully solicit[ed]” a minor.           For that reason, defense counsel

“ask[ed]   for    the   plain    meaning”      of   those    terms,   without   any

embellishment.      This   was    the    subject     of     his   second   objection

(objection C), not the “more appealing” language.

                                        -42-
the same is true when, as here, the objection that was made was

insufficient to preserve the error.                       Under plain error review, we

“revers[e]      only    if     the    error    is     clear      or     obvious    and    affects

substantial rights. To affect substantial rights, an error “must have

been prejudicial: It must have affected the outcome of the district

court proceedings.”            United States v. Ganim, 510 F.3d 134, 152 (2d

Cir.   2007).         “[T]he       defendant    bears      the    burden      of   establishing

prejudice.”         Logan, 419 F.3d at 179; see also United States v. Olano,

507    U.S.   725,     734    (1993)       (noting       that    when    an   error      has   been

preserved, “a court of appeals normally engages in a specific analysis

of the district court record – a so-called ‘harmless error’ inquiry –

to determine whether the error was prejudicial. [Plain error review]

normally      requires       the    same   kind     of    inquiry,       with   one   important

difference: It is the defendant rather than the Government who bears

the burden of persuasion with respect to prejudice.”)

       Joseph cannot meet his burden because there was conclusive

evidence to support the properly charged theory that, using the

Internet,      he    “attempted       to   convince       or    influence       the   person    he

believed was a 13 year old girl to engage in a sexual act with him.”

A. 158.1; see Skelly, 442 F.3d at 99 (finding no prejudice on plain

error review because the government’s “primary theory [of liability]

was supported by overwhelming proof”).                           The evidence belies any

suggestion, argued by the defendant, that he was just role-playing.



                                               -43-
     In his online conversations with “Julie,” the FBI agent, Joseph

made numerous comments demonstrating his intent to entice her into

engaging in sexual acts with him. Furthermore, on multiple occasions,

Joseph made statements indicating a genuine belief (prior to the day

he arranged to meet Julie) that Julie was a minor.   For example, on

August 22, 2005, the following online exchange took place:

     Joseph:   everyone has different things that really turn them on
               . . . for instance . . . i love touching and kissing .
               . . i could caress a girl’s body for hours, touching,
               kissing, slowly all over . . . every inch is like a
               delicious meal to be savored slowly

     . . . .

     Julie:    is that what you wanna do with us?

     . . . .

     Joseph:   yes, i want to touch you, caress you, kiss you . . .
               and show and te[]ach you things that feel good to you
               and me . . . but only if you want to

     Julie:    u really do?

     Joseph:   yes, but no one can know, because i would go straight
               to jail

     Julie:    what do u mean?

     Joseph:   you are too young for me . . . it is illegal . . . . i
               want to show you both how touching and kissing can be
               so, so hot

Supplemental App. at 86-87.

     The next day, Joseph again chatted with Julie and described in

explicit detail the sexual acts that he wanted to perform with her.

He stated, “i kept thinki[n]g about having sex with you like that

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until we both came.”   When Julie asked, “do u really wanna do this in

person . . . or just pretend,” Joseph replied, “i really want to . .

. I’m just afraid someone will find out.”         App. at 95 (emphasis

added).

     Trying to arrange a meeting with Julie, Joseph said, “i just told

lorie i have some fr[ee] time next wed in the late morning.”     Julie

asked, “really? . . . what do u wanna do?” and Joseph replied, “i want

to see you both . . . i have to ad[]mit, I’m very nervous about it

all, knowing how young you both are . . . but i am also very excited

and want to see if we have chemistry . . . i know i’m going to want to

have my hands all over you when i see you.”   Supplemental App. at 99

(emphasis added).   This conversation followed:

     Joseph:   we need to find a private place where no one will watch
               us or accidentally find us

     Julie:    like the park?

     Joseph:   if there[ ]is good privacy there, sure.

     Julie:    w[o]uldnt it be w[ei]rd to do that out in the open?

     Joseph:   yes, defin[i]tely . . . not a good place for sex, but
               maybe some kissing and touching

     Julie:    ok . . . so u don’t want to do sex?

     Joseph:   i wish we could find a private indoor place . . . not
               outside[]in the park (until you are 18 :-))

Id. at 100-01; see also id. at 106 (“[I] just may have a problem

because i am so much older than you[.]”); id. at 107 (“[P]romise me

you won’t get me in trouble? . . . and have me arrested[.]”).    These

                                 -45-
conversations, among others, starkly refute Joseph’s claims that when

he chatted with Julie, he was simply role-playing and believed that

Julie was a sexually experienced adult posing as a minor.

     Because       there    was     abundant       evidence   supporting       Joseph’s

conviction, there was no prejudice and therefore no plain error

requiring vacatur and remand.              See Skelly, 442 F.3d at 99 (“This is

not a case, then, where it is impossible to determine which of two

competing    theories      formed    the    basis    for   conviction,       for   it   is

overwhelmingly likely that any reasonable juror would have convicted

on the basis of the Government’s primary theory.                      Accordingly, we

conclude that the otherwise forfeited error in the district court’s

instruction does not constitute plain error that we may notice.”).

     Moreover, assuming arguendo that the error did affect Joseph’s

substantial rights by affecting the outcome of his district court

proceedings, “the court of appeals has authority to order correction,

but is not required to do so.”             Olano, 507 U.S. at 735.        The Supreme

Court has stated that a reviewing court’s remedial discretion “should

be employed in those circumstances in which a miscarriage of justice

would otherwise result” – that is, if the error “seriously affects the

fairness, integrity, or public reputation of judicial proceedings.”

Id. (alteration, internal quotation marks, and citations omitted); see

also United States v. Crowley, 318 F.3d 401, 415 (2d Cir. 2003).                        No

error   in   the   case    before    us    calls    into   question    the    fairness,



                                           -46-
integrity, or public reputation of judicial proceedings.

IV.   The District Court’s Evidentiary Rulings

      The majority, anticipating a retrial, “urge[s] the District Court

to give a more thorough consideration to the Defendant’s claim to

present Dr. Herriot’s testimony [on Internet role-playing], in the

event it is offered at retrial.”     Maj. Op. at [19].    The majority

believes that Dr. Herriot’s testimony would be probative and “highly

likely to assist the jury to understand the evidence.”     Id. at [20]

(internal quotation marks and citation omitted).     Nevertheless, the

majority acknowledges that “the admission or exclusion of expert

testimony is committed to the discretion of the court.”    Id. at [19].

      I agree that the exclusion of Dr. Herriot’s testimony was within

the sound discretion of the trial judge, but I would refrain from

suggesting that the district court admit that evidence if it is

presented at retrial.   Even if Dr. Herriot was a qualified expert, as

the majority seems to believe, see id. at [18-19], I believe the

evidence was properly excludable under Federal Rule of Evidence 403.

While testimony about a culture of role-playing on the Internet may

have been “relevant” under the low threshold set by Rule 401, it was

within the district court’s discretion to find that the testimony

lacked sufficient probative value.   Evidence that some people engage

in role-playing on the Internet sheds little light on whether Joseph

did so in this particular case, when he was having sexually explicit


                                 -47-
conversations with “Julie.”

      Weighing against this low probative value were “considerations of

undue delay, waste of time, or needless presentation of cumulative

evidence.”   Fed. R. Evid. 403.       Even without Dr. Herriot’s expert

testimony, there was ample opportunity to present the defense’s role-

playing theory from Joseph’s own testimony that he was only engaging

in sexual fantasy role-play.      See Maj. Op. at [6-8, 12].   For example,

Joseph testified that his Internet screen name “is kind of . . . an

idealized version of what . . . Dennis Joseph can’t do but can do on

the internet.”     App. at 114.     He further testified to his general

practice of “playing pretend” on the Internet: “And going back maybe

seven or eight years ago, I would pretend to be things that I’m

actually not.    I would pretend to be bodybuilders.   I would pretend to

be very wealthy. . . . Sometimes I would pretend to be homosexual.”

Id.   It was the province of the jury to decide whether to credit

Joseph’s testimony that he was simply role-playing.

      Because I believe the district court acted within its discretion

in excluding Dr. Herriot’s testimony, I would not suggest that it

reconsider that decision upon retrial.

V.    Conclusion

      For the foregoing reasons, I respectfully dissent.




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