    13-588
    United States v. D’Amelio


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

            At a stated term of the United States Court of Appeals for the Second Circuit, held at the
    Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
    12th day of May, two thousand fourteen.

    PRESENT:
                ROSEMARY S. POOLER,
                REENA RAGGI,
                DENNY CHIN,
                      Circuit Judges.
    _____________________________________

    United States of America,

                                Appellee,

                      v.                                                     13-588

    Daniel D’Amelio, AKA Wamarchand@aol.com,

                                Defendant-Appellant.*

    _____________________________________


    FOR DEFENDANT-APPELLANT:                            Daniel D’Amelio, pro se, Fort Dix, NJ

    FOR APPELLEE:                                       Michael Alexander Levy, Randall Wade Jackson,
                                                        and Brent Scott Wible, Assistant United States
                                                        Attorneys, for Preet Bharara, United States

                *
                 The Clerk of the Court is directed to amend the caption as above.
                                              Attorney for the Southern District of New York,
                                              New York, NY


       Appeal from a judgment of the United States District Court for the Southern District of

New York (McMahon, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Daniel D’Amelio, proceeding pro se, appeals from the district court’s

judgment, following a jury verdict, finding him guilty of one count of attempted enticement of a

minor using a facility or means of interstate commerce, in violation of 18 U.S.C. § 2422(b). We

assume the parties’ familiarity with the underlying facts, the procedural history of the case, and

the issues on appeal.

       In challenging the sufficiency of the evidence to support his conviction, a defendant

bears a heavy burden. United States v. Reifler, 446 F.3d 65, 94-95 (2d Cir. 2006). We “must

credit every inference that could have been drawn in the [G]overnment’s favor, and affirm the

conviction so long as, from the inferences reasonably drawn, the jury might fairly have

concluded guilt beyond a reasonable doubt.” Id. at 94 (internal citations omitted). “[T]he task

of choosing among competing, permissible inferences is for the [jury], not for the reviewing

court.” United States v. McDermott, 245 F.3d 133, 137 (2d Cir. 2001).

       To establish a conviction under § 2422(b), the Government must prove that an

individual: (1) used a facility of interstate commerce; (2) to knowingly persuade, induce or

entice, or to attempt to persuade, induce or entice; (3) any individual who is younger than

eighteen-years old; (4) to engage in sexual activity of a criminal nature. 18 U.S.C. § 2422(b);


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see United States v. Brand, 467 F.3d 179, 201-02 (2d Cir. 2006). A conviction “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. To prove an attempt to commit the

crime, the Government must show that the defendant had the intent to commit the crime and

engaged in conduct amounting to a “substantial step” towards its commission, which must

involve more than “mere preparation.” Id.

       The evidence was sufficient for the jury to find D’Amelio guilty of violating § 2422(b).

The Government’s evidence showed that he initiated contact with “Mary,” who told him that

she was a 12-year-old girl, in a chatroom entitled “I Love Much Older Men.” See Brand, 467

F.3d at 202 (evidence sufficient to sustain conviction under § 2422(b) when Government

showed that defendant initiated contact with a girl claiming to be 13 years old in a chatroom

entitled “I Love Older Men”). D’Amelio also frequently suggested that he “liked” her, and that

he performed sexual acts on women he “liked.” He also “continuously steered the conversation

in the direction of sexual contact,” which we have recognized can constitute “classic

‘grooming’ behavior in preparation for a future sexual encounter.” Id. at 203. Moreover, by

meeting with “Mary” at a designated location, D’Amelio took a “substantial step” toward the

completion of the crime. Id. at 204 (defendant took a “substantial step” toward violating §

2422(b) when he went to the meeting place that he had established with the underage

individual).

       Although D’Amelio offered a different theory as to why he engaged in such interactions,

the jury was required to make a credibility determination, which we rarely disturb. See United

States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989). Moreover, it is the role of the jury to choose


                                                 3
among competing, permissible inferences, which it did. McDermott, 245 F.3d at 137. Although

he argues that he was aware that “Mary” was an adult, the evidence viewed most favorably to

the prosecution, indicates otherwise. Sepcifically, D’Amelio showed his concern about getting

“into trouble” and about laws that prohibited sexual activity between adults and underage

individuals. When he met “Mary” in person, he suggested that she create an alternate

screenname indicating that she was 16 years old instead of 12 years old. The jury could have

drawn a reasonable inference from such behavior that he did in fact believe she was only 12

years old.

       D’Amelio also challenges the Government’s use of internet communications and audio-

recordings as evidence instead of “physical, in-person” evidence. However, we have held that

“the [G]overnment has no duty to employ in the course of a single investigation all of the many

weapons at its disposal,” and that “failure to utilize some particular technique . . . does not tend

to show that a defendant is not guilty of the crime with which he has been charged.” United

States v. Saldarriaga, 204 F.3d 50, 53 (2d Cir. 2000).

       D’Amelio also argues that, because § 2422(b) requires that his conduct be directed

toward an actual minor, the district court erred by instructing the jury that it could convict him

if it found that he subjectively believed that “Mary” was a minor. We have previously rejected

that argument, as the statute “explicitly proscribes attempts to entice a minor,” meaning that a

defendant may be found guilty even if the victim he believes to be underage is in fact an adult.

United States v. Gagliardi, 506 F.3d 140, 145-46 (2d Cir. 2007) (emphasis in original).

       As for D’Amelio’s argument that his prosecution violated the First Amendment,

§ 2422(b) “punishes the act of enticing or attempting to entice a minor when it is knowingly


                                                 4
done,” which “does not implicate speech.” Id. at 148 (emphasis in original). Moreover, speech

is not protected by the First Amendment “‘when it is the very vehicle of the crime itself.’” Id.

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

       With respect to D’Amelio’s ineffective assistance claim, that claim must be made in the

first instance to the district court in order that there be a full factual record on review. United

States v. Matos, 905 F.2d 30, 32 (2d Cir. 1990). Although we may decide such a claim raised

for the first time on appeal when its resolution is “beyond any doubt” or in the interest of

justice, D’Amelio has not made such a showing. Id. Moreover, we prefer to hear claims of

ineffective assistance of counsel on collateral review. See United States v. Doe, 365 F.3d 150,

152 (2d Cir. 2004).

       We have considered D’Amelio’s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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