     06-4541-cr
     United States v. Gagliardi

 1                        UNITED STATES COURT OF APPEALS
 2                            FOR THE SECOND CIRCUIT
 3
 4                            August Term 2007
 5      (Argued: September 4, 2007       Decided: October 22, 2007)
 6                         Docket No. 06-4541-cr
 7   -----------------------------------------------------x
 8   UNITED STATES OF AMERICA,
 9
10               Appellee,
11
12                           -- v. --
13
14   FRANK GAGLIARDI,
15
16               Defendant-Appellant.
17
18   -----------------------------------------------------x
19
20   B e f o r e :     WALKER, CALABRESI, and SACK, Circuit Judges.

21         Appeal by Defendant Frank Gagliardi from a judgment of

22   conviction of one count of attempt to entice a minor to engage in

23   illegal sexual activity pursuant to 18 U.S.C. § 2422(b), entered

24   in the United States District Court for the Southern District of

25   New York (Sidney H. Stein, Judge).       Because we find that §

26   2422(b) does not require the involvement of an actual minor and

27   that the statute is neither vague nor overbroad, the judgment is

28   AFFIRMED.

29                                            MICHAEL S. POLLOK, New York,
30                                            N.Y., for Defendant-Appellant.
31
32                                            MARGARET GARNETT, Assistant
33                                            United States Attorney, of
34                                            counsel, (Benjamin Gruenstein,
35                                            Assistant United States


                                        -1-
1                                          Attorney, of counsel, on the
2                                          brief), for Michael J. Garcia,
3                                          United States Attorney for the
4                                          Southern District of New York,
5                                          New York, N.Y., for Appellee.

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

7         Defendant-Appellant Frank Gagliardi appeals from his

8    conviction on one count of attempting to entice a minor to engage

9    in prohibited sexual activity in violation of 18 U.S.C. §

10   2422(b).   He argues that § 2422(b) requires an actual minor

11   victim and is unconstitutionally vague and overbroad.    In the

12   instant case, the targets of Gagliardi’s attempted enticement

13   were not actual minors but adults posing as minors.    We now join

14   several other circuits in holding that 18 U.S.C. § 2422(b) does

15   not require that the enticement victim be an actual “individual

16   who has not attained the age of 18 years” and is neither

17   unconstitutionally vague nor overbroad.    Because Gagliardi’s

18   other arguments challenging his conviction are without merit, we

19   affirm the judgment of conviction.

20                               BACKGROUND

21        On July 7, 2005, Gagliardi, then sixty-two years old,

22   entered an Internet chat room called “I Love Older Men” and

23   initiated an instant-message conversation with “Lorie,” an adult

24   government informant posing as a thirteen-year-old girl under the

25   screen name “Teen2HoT4u.”   The informant was a private citizen

26   who had previously assisted the Federal Bureau of Investigation


                                     -2-
1    (“FBI”) in identifying child predators on the Internet.   During

2    this initial conversation, Gagliardi tried to verify that Lorie

3    was in fact thirteen years old and broached the topic of sex.

4         Gagliardi contacted Lorie again on August 29, 2005 and had

5    the first of many online conversations in which he expressed his

6    desire to have sex with her and used sexually explicit language

7    to describe the acts he wished to perform with her.   Gagliardi

8    even offered to pay Lorie $200 to have sex with him, before

9    telling her, “I want to meet you . . . make love to me anytime .

10   . . no strings attached.”   In the following weeks, Gagliardi

11   repeatedly tried to convince Lorie to meet him in person, asking

12   her to “tell me where is good for you, I come to pick you up,” or

13   offering to meet her in a public place.

14        On September 1, 2005, Lorie indicated that she was “scared”

15   to meet Gagliardi alone and suggested that he contact her

16   thirteen-year-old friend Julie.    “Julie” was in fact FBI Special

17   Agent Austin Berglas, who was working in collaboration with the

18   informant.   Gagliardi suggested that the two girls come together

19   to meet him, telling Lorie, “I will dream about you 2 all night.”

20   On September 16, 2005, Gagliardi e-mailed Lorie a picture of

21   himself, and the informant sent him a photograph that was taken

22   of her when she was approximately thirteen.

23        Taking up Lorie’s suggestion, Gagliardi e-mailed Julie,

24   introducing himself as a friend of Lorie, asking for her picture,


                                       -3-
1    and requesting that she accompany Lorie if they ever set up a

2    meeting.   On September 29, 2005, Gagliardi initiated an instant-

3    message chat with Julie during which he asked if she was willing

4    to meet him and described the sexual activities that they could

5    engage in.

6         Gagliardi subsequently arranged to meet Lorie and Julie in

7    lower Manhattan on the morning of October 5, 2005.    FBI agents

8    placed the pre-arranged meeting place under surveillance and

9    arrested Gagliardi as he waited in his car.   After being advised

10   of and agreeing to waive his Miranda rights, Gagliardi admitted

11   to the agents that he was at the location to meet two thirteen-

12   year-old girls with whom he had previously had sexually explicit

13   online conversations; he denied, however, that he intended to

14   have sex with them.   During a post-arrest inventory search of

15   Gagliardi’s car, the agents found two condoms and a Viagra pill.

16   Gagliardi was charged with attempt to entice, induce, or persuade

17   a minor to engage in illegal sexual activity, in violation of 18

18   U.S.C. § 2422(b).

19        At trial, the government relied on the testimony of the

20   informant and Agent Berglas, together with Gagliardi’s electronic

21   communications with “Lorie” and “Julie.”   Gagliardi moved to

22   dismiss the indictment on the grounds that: (1) the involvement

23   of an actual minor was a prerequisite to a conviction under 18

24   U.S.C. § 2422(b); (2) the statute was unconstitutionally vague;


                                     -4-
1    and (3) the evidence was insufficient to show that Gagliardi had

2    committed an attempt.

3         The district court (Sidney H. Stein, Judge) denied the

4    motion.   See United States v. Gagliardi, No. 05 CR 1265(SHS),

5    2006 WL 1459850 (S.D.N.Y. May 26, 2006).    The district court

6    concluded that § 2422(b) did not require an actual minor victim

7    because the statute provided for criminal liability for attempted

8    enticement of a minor, and one could demonstrate that Gagliardi

9    had the intent and took a substantial step toward committing the

10   crime, as required for attempt liability, even though it was

11   factually impossible for him to commit the substantive offense.

12   See id. at *2.   It also concluded that the evidence at trial was,

13   in fact, sufficient to demonstrate the elements of intent and

14   substantial step.   See id. at *6.    The district court further

15   determined that the statute was not unconstitutionally vague

16   because it was sufficiently definite to provide notice to an

17   ordinary person of what conduct was prohibited.     See id. at *3.

18        On May 16, 2006, Gagliardi was convicted by a jury and

19   sentenced to the mandatory minimum imprisonment term of sixty

20   months.   The defendant moved to set aside the verdict on the

21   basis of government entrapment and insufficiency of evidence.

22   The district court denied the motion, reasoning that “[e]ven if

23   Gagliardi had adduced enough credible evidence of inducement that

24   no rational trier of fact could have concluded that the


                                     -5-
1    government did not induce the crime, a rational juror could

2    nevertheless have rejected Gagliardi’s entrapment defense by

3    finding that he was predisposed to commit the crime.”     United

4    States v. Gagliardi, No. 05 CR 1265(SHS), 2006 WL 2597895, at *2

5    (S.D.N.Y. Sept. 7, 2006).    With respect to the sufficiency of the

6    evidence, the court found that based on Gagliardi’s numerous

7    sexually explicit communications with Lorie and Julie, his

8    exchange of photographs, and his arrival at the pre-arranged

9    meeting place with condoms and Viagra, a rational juror could

10   have concluded that Gagliardi had the requisite intent and took a

11   substantial step toward commission of the crime.    See id. at *2-

12   3.   This appeal followed.

13                                DISCUSSION

14        Gagliardi raises six issues on appeal.   He contends that the

15   plain meaning of 18 U.S.C. § 2422(b) requires that the victim of

16   enticement or attempted enticement be an actual minor and that,

17   because the informant and Agent Berglas were adults posing as

18   minors, his conviction cannot stand; that § 2422(b) is

19   unconstitutionally vague and overbroad; that § 2422(b)’s

20   mandatory minimum sentence violates the separation of powers

21   doctrine or that its imposition in his case resulted from

22   prosecutorial sentencing manipulation; that reversal is required

23   because his conduct could only be construed as conspiring to

24   attempt to violate the law, an offense that is “legally


                                      -6-
1    impossible” to commit when the co-conspirators are all government

2    decoys, Appellant’s Br. at 45; that the evidence at trial was

3    insufficient to support a conviction for attempted enticement or

4    to defeat his entrapment defense; and that the district court

5    erred in admitting into evidence e-mails and transcripts of his

6    instant message chats without sufficient authentication.

7    I.   Involvement of an “Actual Minor”

8         Section 2422(b) of Title 18 imposes criminal liability on

9    anyone who “knowingly persuades, induces, entices, or coerces any

10   individual who has not attained the age of 18 years, to engage in

11   prostitution or any sexual activity for which any person can be

12   charged with a criminal offense, or attempts to do so.”    18

13   U.S.C. § 2422(b).   Gagliardi argues that the statute’s plain

14   meaning and legislative history unambiguously indicate Congress’s

15   intent to criminalize such conduct only when directed toward an

16   actual minor.

17          To support his argument, Gagliardi points to Congress’s

18   rejection of a 1998 amendment to § 2422(b) that would have

19   expanded the statute to reach a defendant who subjectively

20   believed that the target of his enticement was a minor.    Compare

21   H.R. Rep. No. 105-557, at 2 (1998), reprinted in 1998

22   U.S.C.C.A.N. 678, 678 (proposing an amendment that would extend

23   to one who “knowingly contacts an individual, who has been

24   represented to the person making the contact as not having


                                     -7-
1    attained the age of 18 years”), with Protection of Children from

2    Sexual Predators Act of 1998, Pub. L. No. 105-314, § 102, 112

3    Stat. 2974, 2975-76 (amending § 2422(b) without this change). He

4    contends that in refusing to expand the statute in this manner,

5    Congress “made clear that 18 U.S.C. § 2422(b) only criminalizes

6    an attempt involving a minor.”   Appellant’s Br. at 33-34.

7         Gagliardi also infers from a proposed 2005 amendment that

8    would “allow law enforcement officers to represent themselves as

9    minors on the Internet to better protect America’s children from

10   sexual predators,”   151 Cong. Rec. S9833 (daily ed. Sept. 8,

11   2005), that “Congress does not believe that 18 U.S.C. § 2422(b)

12   applies to undercover law enforcement officials or cooperating

13   witnesses representing themselves as being under the age of 18."

14   Appellant’s Br. at 35.   He argues that such a proposal would be

15   unnecessary if the statute already applied to government decoys.

16   We disagree.

17        As an initial matter, we note that Gagliardi’s argument has

18   been squarely rejected by the six other circuits to have

19   considered the issue, and for sound reasons.   See, e.g., United

20   States v. Hicks, 457 F.3d 838, 841 (8th Cir. 2006) (“[A]

21   defendant may be convicted of attempting to violate § 2422(b)

22   even if the attempt is made towards someone the defendant

23   believes is a minor but who is actually not a minor.”); United

24   States v. Tykarsky, 446 F.3d 458, 466 (3d Cir. 2006) (“Congress


                                      -8-
1    did not intend to allow the use of an adult decoy, rather than an

2    actual minor, to be asserted as a defense to § 2422(b).”); see

3    also United States v. Sims, 428 F.3d 945, 960 (10th Cir. 2005);

4    United States v. Meek, 366 F.3d 705, 717-20 (9th Cir. 2004);

5    United States v. Root, 296 F.3d 1222, 1227-29 (11th Cir. 2002);

6    United States v. Farner, 251 F.3d 510, 513 (5th Cir. 2001).

7           In interpreting a statute, we look first to its text to

8    determine “‘whether the language at issue has a plain and

9    unambiguous meaning with regard to the particular dispute in the

10   case.’”    In re Med Diversified, Inc., 461 F.3d 251, 255 (2d Cir.

11   2006) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340

12   (1997)).    Section 2422(b) explicitly proscribes attempts to

13   entice a minor, which suggests that actual success is not

14   required for a conviction and that a defendant may thus be found

15   guilty if he fails to entice an actual minor because the target

16   whom he believes to be underage is in fact an adult.    See

17   Tykarsky, 446 F.3d at 467 (“The attempt provision is . . . most

18   naturally read to focus on the subjective intent of the

19   defendant, not the actual age of the victim.”); Meek, 366 F.3d at

20   718.

21          In arguing that he could not have completed the intended

22   crime of enticement because extraneous circumstances unknown to

23   him rendered completion impossible, Gagliardi essentially asserts

24   a defense of factual impossibility.    We have held, however, that


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1    “factual impossibility is not a defense to a charge of attempt in

2    substantive criminal law.”     United States v. Weisser, 417 F.3d

3    336, 352 (2d Cir. 2005).

4         Gagliardi’s two arguments from the statute’s legislative

5    history are similarly unpersuasive.     Cf. United States v. Craft,

6    535 U.S. 274, 287 (2002) (“[F]ailed legislative proposals are ‘a

7    particularly dangerous ground on which to rest an interpretation

8    of a prior statute . . . .’” (quoting Pension Benefit Guar. Corp.

9    v. LTV Corp., 496 U.S. 633, 650 (1990))).    His proposed

10   interpretation of that history provides just one possible reading

11   of Congress’s intent.    As to Gagliardi’s first argument, the fact

12   that Congress rejected a supplemental provision to § 2422(b) that

13   would have specifically covered individuals who represented

14   themselves as being minors is not conclusive evidence that

15   Congress meant to affirmatively exclude those individuals.    It is

16   equally possible that Congress did not adopt the amendment

17   because it believed that the text of § 2422(b), expressly

18   proscribing the attempt, was sufficient to include victims

19   believed to be minors.     See Pension Benefit Guar. Corp., 496 U.S.

20   at 650 (“Congressional inaction lacks persuasive significance

21   because several equally tenable inferences may be drawn from such

22   inaction, including the inference that the existing legislation

23   already incorporated the offered change.” (internal quotation

24   marks omitted)).


                                      -10-
1         As to Gagliardi’s second argument, the fact that two

2    legislators proposed a bill in 2005 to explicitly expand §

3    2422(b) is hardly dispositive of the intent of Congress as a

4    whole concerning the statute’s scope.   Congress could have been

5    aware that several circuits had already interpreted § 2422(b) to

6    include adults posing as minors and found no need to amend the

7    statute.   See Lorillard v. Pons, 434 U.S. 575, 580 (1978)

8    (“Congress is presumed to be aware of . . . [a] judicial

9    interpretation of a statute . . . .”); United States v.

10   Gagliardi, No. 05 CR 1265(SHS), 2006 WL 1459850, at *4 (S.D.N.Y.

11   May 26, 2006) (noting that Congress has failed to move forward on

12   the proposed legislation).   Thus, Gagliardi’s arguments on this

13   score are unconvincing.

14        At the time of § 2422(b)’s 1998 amendment, the House

15   Judiciary Committee pointed out that

16        law enforcement plays an important role in discovering child
17        sex offenders on the Internet before they are able to
18        victimize an actual child. Those who believe they are
19        victimizing children, even if they come into contact with a
20        law enforcement officer who poses as a child, should be
21        punished just as if a real child were involved. It is for
22        this reason that several provisions in this Act prohibit
23        certain conduct involving minors and assumed minors.
24
25   H.R. Rep. No. 105-557, at 19.   The interpretation advanced by

26   Gagliardi would effectively remove the “sting” from the

27   government’s sting operations, preventing undercover officers

28   from obtaining a conviction, or it would require them to use an

29   actual child as a decoy, which they would obviously be reluctant

                                     -11-
1    to do.   Cf. Tykarsky, 446 F.3d at 468 (“It is common knowledge

2    that law enforcement officials rely heavily on decoys and sting

3    operations in enforcing solicitation and child predation crimes

4    such as § 2422(b).   We consider it unlikely that Congress

5    intended to prohibit this method of enforcement.”).   Because such

6    a result would significantly impede legitimate enforcement of the

7    statute, and because the statute’s language is clear, we reject

8    Gagliardi’s interpretation and join the Third, Fifth, Eighth,

9    Ninth, Tenth, and Eleventh Circuits in holding that the

10   involvement of an actual minor is not a prerequisite to an

11   attempt conviction under § 2422(b).

12   II.   Vagueness and Overbreadth

13         Gagliardi next argues that § 2422(b) is vague and overbroad

14   on its face and as applied.   He contends that the statute is

15   unconstitutionally vague because it does not define the terms

16   “attempt,” “persuade,” “induce,” “entice,” or “coerce,” and

17   ordinary people could differ in their interpretation of the

18   meaning of these words.   He contends that the statute is

19   overbroad because it suppresses protected speech by infringing on

20   the right of an adult “to freely engage in fantasy speech with

21   other adults.”   Appellant’s Br. at 38.   We reject both challenges

22   and now join the five other circuits that have already done so.

23   See, e.g., Tykarsky, 446 F.3d at 472-73; United States v. Thomas,

24   410 F.3d 1235, 1243-44 (10th Cir. 2005); Meek, 366 F.3d at 722;


                                       -12-
1    United States v. Panfil, 338 F.3d 1299, 1301 (11th Cir. 2003);

2    United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000).

3         A penal statute is not void for vagueness if it defines the

4    offense (1) “with sufficient definiteness that ordinary people

5    can understand what conduct is prohibited” and (2) “in a manner

6    that does not encourage arbitrary and discriminatory

7    enforcement.”   Kolender v. Lawson, 461 U.S. 352, 357 (1983); see

8    also Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926).

9    Section 2422(b) satisfies both of these requirements.

10        The words “attempt,” “persuade,” “induce,” “entice,” or

11   “coerce,” though not defined in the statute, are words of common

12   usage that have plain and ordinary meanings.   See Tykarsky, 446

13   F.3d at 473; Panfil, 338 F.3d at 1301.   Although, as Gagliardi

14   argues, there may be some uncertainty as to the precise

15   demarcation between “persuading,” which is criminalized, and

16   “asking,” which is not, this uncertainty is not cause for

17   constitutional concern because the statute’s terms are

18   sufficiently definite that ordinary people using common sense

19   could grasp the nature of the prohibited conduct.   See Tykarsky,

20   446 F.3d at 473; cf. United States v. Cullen, 499 F.3d 157, 163,

21   (2d Cir. 2007) (“Although we recognize in many English words

22   there lurk uncertainties, to meet the fair warning prong an ounce

23   of common sense is worth more than an 800-page dictionary.”

24   (citation omitted)).


                                    -13-
1         The statute also establishes the requisite minimal

2    guidelines to prevent arbitrary or discriminatory enforcement,

3    see Kolender, 461 U.S. at 358, in that it applies only to those

4    who “knowingly” engage in the prohibited conduct.     This scienter

5    requirement narrows the scope of § 2422(b) as well as the ability

6    of prosecutors and law enforcement officers to act based on their

7    own preferences.   See Panfil, 338 F.3d at 1301.

8         We likewise reject Gagliardi’s overbreadth argument.     “The

9    overbreadth doctrine prohibits the Government from banning

10   unprotected speech if a substantial amount of protected speech is

11   prohibited or chilled in the process.”     Ashcroft v. Free Speech

12   Coal., 535 U.S. 234, 255 (2002).    Gagliardi contends that §

13   2422(b) impermissibly suppresses fantasy speech with adults who

14   happen to be posing as minors.    Yet the statute punishes the act

15   of enticing or attempting to entice a minor when it is knowingly

16   done; it does not implicate speech.     Moreover, when fantasy

17   speech is directed toward an adult believed to be a minor, it is,

18   in effect, the vehicle through which a pedophile attempts to

19   ensnare a victim, cf. Meek, 366 F.3d at 721, and we have held,

20   unremarkably, that “‘[s]peech is not protected by the First

21   Amendment when it is the very vehicle of the crime itself,’”

22   United States v. Rowlee, 899 F.2d 1275, 1278 (2d Cir. 1990)

23   (citation omitted); see also Giboney v. Empire Storage & Ice Co.,

24   336 U.S. 490, 498 (1949) (“It rarely has been suggested that the


                                      -14-
1    constitutional freedom for speech and press extends its immunity

2    to speech or writing used as an integral part of conduct in

3    violation of a valid criminal statute.”).    By Gagliardi’s own

4    admission in his brief, “there is no First Amendment right to

5    persuade minors to engage in illegal sex acts,” Appellant’s Br.

6    at 38; see also Tykarsky, 446 F.3d at 473; there is likewise no

7    First Amendment right to persuade one whom the accused believes

8    to be a minor to engage in criminal sexual conduct.

9         Because no protected speech would be chilled by § 2422(b),

10   and because the statute’s terms are sufficiently unambiguous, we

11   conclude that § 2422(b) is not unconstitutionally vague or

12   overbroad.

13   III. Gagliardi’s Remaining Challenges

14        A.     Separation of Powers and Sentencing Manipulation

15        Gagliardi contends that § 2422(b) is unconstitutional as

16   applied to him because its application violated the separation of

17   powers doctrine, and that his conviction should therefore be

18   reversed.    Specifically, Gagliardi argues that because the

19   offense carries a mandatory minimum sentence, the prosecutor’s

20   charging discretion has sentencing implications and thus

21   constitutes executive interference with a judicial function.      In

22   addition, he claims that the imposition of the mandatory minimum

23   sentence was the result of sentencing manipulation, in that the

24   government deliberately selected the age of thirteen for its


                                     -15-
1    decoys to maximize the probability of conviction, and asks us to

2    remand for resentencing.    Both of these arguments are without

3    merit.   First, the executive branch’s discretion to charge an

4    offense that carries a mandatory minimum does not result in

5    executive aggrandizement at the expense of the judiciary.        See

6    United States v. Jimenez, 451 F.3d 97, 102 (2d Cir. 2006) (per

7    curiam) (“[M]andatory minimums have taken on increased

8    significance after Booker -- in that they remain binding on the

9    district courts and work to restrain their newly acquired

10   discretion . . . .”).

11        Second, this Court has not yet recognized the doctrine of

12   sentencing manipulation, which occurs “‘when the government

13   engages in improper conduct that has the effect of increasing the

14   defendant’s sentence.’”     United States v. Gomez, 103 F.3d 249,

15   256 (2d Cir. 1997) (quoting United States v. Okey, 47 F.3d 238,

16   240 (7th Cir. 1995)).     It has, however, suggested that if a

17   departure based on sentencing manipulation were valid, “it would

18   likely require a showing of ‘outrageous’ government conduct,”

19   United States v. Bala, 236 F.3d 87, 93 (2d Cir. 2000).    Even if

20   we were to assume that sentencing manipulation is a valid

21   departure ground, Gagliardi has not made the requisite showing in

22   this case.   There is nothing outrageous about the government’s

23   decision to have its decoys present themselves as age thirteen,

24   rather than fourteen or sixteen.


                                      -16-
1         B.     Conspiracy

2         Gagliardi next asks us to reverse his conviction because his

3    conduct could only be properly construed as a conspiracy to

4    attempt to violate § 2422(b), and finding such a conspiracy is

5    legally impossible in this case because the requisite criminal

6    agreement is absent when both co-conspirators are government

7    decoys.   See United States v. Andrades, 169 F.3d 131, 135 (2d

8    Cir. 1999).    He contends that it was improper for the government,

9    knowing that it could not obtain a conviction for conspiracy, to

10   charge him with attempt instead.   This argument is frivolous on

11   its face.    There is no requirement that the government charge a

12   defendant with a crime that he did not commit instead of or in

13   addition to one that he did commit.    See United States v. Bonnet-

14   Grullon, 212 F.3d 692, 701 (2d Cir. 2000), superseded by statute

15   on other grounds, Prosecutorial Remedies and Other Tools To End

16   the Exploitation of Children Today (PROTECT) Act of 2003, Pub. L.

17   No. 108-21, 117 Stat. 650, as recognized in United States v.

18   Leiva-Deras, 359 F.3d 183 (2d Cir. 2004) (“It is well established

19   that the decision as to what federal charges to bring against any

20   given suspect is within the province of the Executive Branch of

21   the government.”).

22        Gagliardi further contends that the district court erred in

23   failing to “instruct[] the jury on conspiracy as a lesser

24   included (and legally impossible) offense.”   Appellant’s Br. at


                                     -17-
1    51.   Putting aside the fact that there is no evidence in the

2    record that Gagliardi even requested such an instruction at

3    trial, this argument fails because conspiracy to attempt a crime

4    is not a lesser included offense of attempt.    We have stated

5    that, “for an uncharged offense to be ‘included,’ all of its

6    elements must also be elements of the offense charged.”     United

7    States v. Giampino, 680 F.2d 898, 901 (2d Cir. 1982).     Gagliardi

8    admits in his own brief that “‘[a]n attempt requires but one

9    person for the offense; a conspiracy requires at least two.      A

10   conspiracy also requires an agreement; an attempt does not.’”

11   Appellant’s Br. at 52 (quoting United States v. Madonna, 582 F.2d

12   704, 705 (2d Cir. 1978) (per curiam)).    Thus, the district court

13   did not err in failing to give the jury a lesser included offense

14   charge.

15         C.    Sufficiency Challenges

16               1.   Entrapment

17         The first of Gagliardi’s two attacks on the sufficiency of

18   the evidence pertains to the entrapment defense, under which a

19   defendant must first prove government inducement by a

20   preponderance of the evidence.    The burden then shifts to the

21   government to show that the defendant was predisposed to commit

22   the crime beyond a reasonable doubt.     See United States v. Brand,

23   467 F.3d 179, 189 (2d Cir. 2006), cert. denied, 127 S. Ct. 2150

24   (2007).    Gagliardi argues that the evidence was insufficient to


                                      -18-
1    prove predisposition because he had no history of engaging in the

2    illegal conduct.

3         “A defendant challenging the sufficiency of trial evidence

4    ‘bears a heavy burden,’ and the reviewing court must ‘view the

5    evidence presented in the light most favorable to the

6    government’” and draw all reasonable inferences in the

7    government’s favor.   United States v. Giovannelli, 464 F.3d 346,

8    349 (2d Cir. 2006) (per curiam) (citation omitted), cert. denied,

9    --- S. Ct. ----, 76 U.S.L.W. 3009 (2007).   The jury’s verdict

10   will be affirmed unless “‘no rational trier of fact could have

11   found all of the elements of the crime beyond a reasonable

12   doubt.’”   Id. (quoting United States v. Schwarz, 283 F.3d 76, 105

13   (2d Cir. 2002)).

14        Viewing the evidence in the light most favorable to the

15   government, Gagliardi’s sufficiency challenge fails.    A rational

16   trier of fact could have found beyond a reasonable doubt that

17   Gagliardi was predisposed to commit the offense.   Predisposition

18   can be shown by evidence of a pre-existing design to commit the

19   crime or a ready response to the inducement. See United States v.

20   Salerno, 66 F.3d 544, 547 (2d Cir. 1995).   Here, the defendant

21   chose to enter a chat room conspicuously labeled “I Love Older

22   Men,” contacted Lorie without solicitation after discovering from

23   her online profile that she was thirteen, offered to pay Lorie to

24   have sex with him after just one conversation, vividly described


                                    -19-
1    the sexual acts he wished to perform with her, and attempted on

2    numerous occasions to set up a meeting with her.    Thus, even if

3    Gagliardi could establish government inducement, and even if he

4    had never before exhibited pedophilic tendencies, there was

5    sufficient evidence for a reasonable juror to conclude that he

6    stood ready and willing to violate § 2422(b).     See Brand, 467

7    F.3d at 189-95 (discussing similar factual circumstances and

8    finding the evidence sufficient to establish predisposition).

9              2.     Criminal Attempt

10        Gagliardi’s second attack on the sufficiency of trial

11   evidence pertains to the elements required for an attempt

12   conviction.    To establish attempt, the government must prove that

13   a defendant had the intent to commit the underlying crime and

14   that he took a substantial step toward its completion.     See,

15   e.g., id. at 202.   Gagliardi contends that the government failed

16   to prove both of these elements beyond a reasonable doubt.    This

17   argument is meritless.

18        In United States v. Brand, in answering a similar

19   sufficiency challenge, we discussed several facts supporting a

20   finding that the defendant attempted to entice a minor to engage

21   in sexual activity.    See id.   We noted that intent was shown by

22   the fact that the defendant initiated contact with the two

23   victims in a chat room suggestively entitled “I Love Older Men,”

24   that he repeatedly made sexual advances toward both girls and


                                      -20-
1    asked for their pictures, that he continuously steered the

2    conversation in the direction of sexual contact and described the

3    sexual acts that he would engage in with them, and that he

4    repeatedly attempted to set up a meeting with one of them.     See

5    id. at 202-04.   Finally, we found that the defendant took a

6    substantial step toward the completion of the crime because he

7    actually went to the designated meeting place with condoms in the

8    glove compartment of his car.    See id. at 204.

9         The same facts are present here.   Gagliardi initiated

10   contact with Lorie in the same chat room as in Brand, repeatedly

11   made sexual advances toward Lorie and Julie, asked them for their

12   pictures, steered the conversation toward sexual activities,

13   described the acts that he would engage in with them, tried to

14   set up a meeting with both of them, and appeared for a meeting

15   with condoms and a Viagra pill in his car.   This evidence was

16   easily sufficient for a reasonable juror to have found beyond a

17   reasonable doubt that Gagliardi had the requisite intent to

18   violate § 2422(b).   A reasonable juror could also have found that

19   Gagliardi took a substantial step beyond mere preparation when he

20   arrived at the meeting place with two condoms and a Viagra pill

21   in his car.   See also United States v. Munro, 394 F.3d 865, 870

22   (10th Cir. 2005).    In light of this conclusion, there is no need

23   for us to reach the government’s argument that because the

24   conviction was for attempt to entice rather than attempt to


                                     -21-
1    engage in a prohibited sexual act, the substantial step occurred

2    well before Gagliardi appeared at the designated meeting place,

3    when he repeatedly solicited Lorie and Julie over the Internet.

4         D.    Authentication of Documents

5         Gagliardi’s final claim is that the e-mails and transcripts

6    of instant-message chats offered by the government were not

7    properly authenticated.   He argues that because the documents

8    were largely cut from his electronic communications and then

9    pasted into word processing files, they were not originals and

10   could have been subject to editing by the government.   Gagliardi

11   contends that the communications could even have been completely

12   fabricated.   Due to these “highly suspicious” circumstances,

13   Appellant’s Br. at 72, Gagliardi submits that the government

14   failed to establish authenticity and the trial court therefore

15   erred in admitting the evidence.   We disagree.

16        We review a district court’s evidentiary rulings for abuse

17   of discretion.   Reilly v. Natwest Mkts. Group Inc., 181 F.3d 253,

18   266 (2d Cir. 1999).   The bar for authentication of evidence is

19   not particularly high.    United States v. Dhinsa, 243 F.3d 635,

20   658 (2d Cir. 2001).   “The requirement of authentication . . . is

21   satisfied by evidence sufficient to support a finding that the

22   matter in question is what its proponent claims.”   Fed. R. Evid.

23   901(a).   Generally, a document is properly authenticated if a

24   reasonable juror could find in favor of authenticity.    United


                                     -22-
1    States v. Tin Yat Chin, 371 F.3d 31, 38 (2d Cir. 2004).   The

2    proponent need not “rule out all possibilities inconsistent with

3    authenticity, or to prove beyond any doubt that the evidence is

4    what it purports to be.”   United States v. Pluta, 176 F.3d 43, 49

5    (2d Cir. 1999) (internal quotation marks and citation omitted).

6          We have stated that the standard for authentication is one

7    of “reasonable likelihood,” id. (internal quotation marks and

8    citation omitted), and is “minimal,” Tin Yat Chin, 371 F.3d at

9    38.   The testimony of a witness with knowledge that a matter is

10   what it is claimed to be is sufficient to satisfy this standard.

11   See Fed. R. Evid. 901(b)(1).   In this case, both the informant

12   and Agent Berglas testified that the exhibits were in fact

13   accurate records of Gagliardi’s conversations with Lorie and

14   Julie.   Based on their testimony, a reasonable juror could have

15   found that the exhibits did represent those conversations,

16   notwithstanding that the e-mails and online chats were editable.

17   The district court did not abuse its discretion in admitting the

18   documents into evidence.

19                               CONCLUSION

20         For the foregoing reasons, the judgment of conviction is

21   AFFIRMED.

22




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