The government’s use of investigators or informants posing as underage victims to ensnare sexual predators has been upheld by the U.S. Court of Appeals for the Second Circuit in United States v. Gagliardi, 064541-cr, ruling that 18 U.S.C. 2422(b) is not unconstitutionally vague and does not require that the victim be an actual minor.
The United States Supreme Court is also considering a constitutional challenge to a federal statute by an individual who used an Internet chat room for an unsavory purpose; exchanging child pornography. United States v. Williams, No. 06-6944, argued October 30, 2007.
In United States v. Gagliardi, the Second Circuit rejected an argument the court said ‘would effectively remove the ‘sting’ from the government’s sting operations,’ and ‘significantly impede’ enforcement of a law against enticing minors to engage in illegal sexual activity. Section 2422(b) of Title 18 imposes criminal liability on anyone who knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so.
The facts as recited in the court’s opinion in United States v. Gagliardi are: Frank Gagliardi was 62 on July 7, 2005 when he entered an Internet chat room called â€œI Love Older Menâ€ and initiated an instant-message conversation with â€œLorie,â€ an adult government informant posing as a thirteen-year-old girl under the screen name â€œTeen2HoT4u.â€ The informant was a private citizen who had previously assisted the Federal Bureau of Investigation (â€œFBIâ€) in identifying child predators on the Internet.
During this initial conversation, Gagliardi tried to verify that Lorie was in fact thirteen years old and broached the topic of sex. Gagliardi engaged in several internet chats wherein Gagliardi expressed a desire to have sex with “Lorie”, and they exchanged pictures of themselves (the informant sent him a photograph that was taken of her when she was approximately thirteen). The online conversations culminated with an arrangement for him to meet Lorie and her supposedly thirteen-year-old friend â€œJulieâ€, who was in fact an FBI Special Agent who was working in collaboration with the informant, in lower Manhattan on the morning of October 5, 2005.
FBI agents placed the pre-arranged meeting place under surveillance and arrested Gagliardi as he waited in his car. During a post-arrest inventory search of Gagliardi’s car, the agents found two condoms and a Viagra pill. Gagliardi was charged with attempt to entice, induce, or persuade a minor to engage in illegal sexual activity, in violation of 18 U.S.C. 2422(b). On May 16, 2006, Gagliardi was convicted by a jury and sentenced to the mandatory minimum imprisonment term of sixty months. The defendant’s motion to set aside the verdict on the basis of government entrapment and insufficiency of evidence was denied by the district court.
The appeal followed. The Second Circuit rejected all six issues that Gagliardi raised on appeal. His issues were (1) that the plain meaning of 18 U.S.C. 2422(b) requires that the victim of enticement or attempted enticement be an actual minor and that, because the informant and Agent Berglas were adults posing as minors, his conviction cannot stand; (2) that 2422(b) is unconstitutionally vague and overbroad; (3) that 2422(b)’s mandatory minimum sentence violates the separation of powers doctrine or that its imposition in his case resulted from prosecutorial sentencing manipulation; (4) that reversal is required because his conduct could only be construed as conspiring to attempt to violate the law, an offense that is â€œlegally impossibleâ€ to commit when the co-conspirators are all government decoys, Appellant’s Br. at 45; (5) that the evidence at trial was insufficient to support a conviction for attempted enticement or to defeat his entrapment defense; and (6) that the district court erred in admitting into evidence e-mails and transcripts of his instant message chats without sufficient authentication.
Perhaps Gagliardi’s most galling challenge to his conviction was his contention that the evidence was insufficient to prove his predisposition to commit the crime and that the government entrapped him. The court noted that in his case, predisposition was shown by evidence that he chose to enter a chat room conspicuously labeled “I Love Older Men,” contacted Lorie without solicitation after discovering from her online profile that she was thirteen, offered to pay Lorie to have sex with him after just one conversation, vividly described the sexual acts he wished to perform with her, and attempted on numerous occasions to set up a meeting with her.
The court further observed that Gagliardi took a substantial step beyond mere preparation when he arrived at the meeting place with two condoms and a Viagra pill in his car. In soundly rejecting Gagliardi’s contention that the statute requires enticement of an actual minor, the circuit observed that the interpretation advanced by Gagliardi would effectively remove the â€œstingâ€ from the government’s sting operations, preventing undercover officers from obtaining a conviction, or it would require them to use an actual child as a decoy, which they would obviously be reluctant to do, and would significantly impede legitimate enforcement of the statute.
The court also noted several factors including: (1) the attempt provision is most naturally read to focus on the subjective intent of the defendant, not the actual age of the victim.â€); (2) factual impossibility is not a defense to a charge of attempt in substantive criminal law; (3) failed legislative proposals are a particularly dangerous ground on which to rest an interpretation of a prior statute.
The circuit also pointed to a pronouncement of the House Judiciary Committee at the time the satute was amended in 1998: “law enforcement plays an important role in discovering child sex offenders on the Internet before they are able to victimize an actual child. Those who believe they are victimizing children, even if they come into contact with a law enforcement officer who poses as a child, should be punished just as if a real child were involved. It is for this reason that several provisions in this Act prohibit certain conduct involving minors and assumed minors.”
The decision rejected Gagliardi’s First Amendment freedom of speech arguments, stating that when fantasy speech is directed toward an adult believed to be a minor, it is, in effect, the vehicle through which a pedophile attempts to ensnare a victim, that speech is not protected by the First Amendment when it is the very vehicle of the crime itself, and that there is no First Amendment right to persuade minors to engage in illegal sex acts.
In the Supreme Court case, United States v. Williams, the defendant is challenging a 2003 law called the Protect Act, which was an atttempt by Congress to overcome prior judicial disallowance of its efforts to regulate Internet content. A Florida man was convicted after being caught in a federal sting offering to trade nude pictures of his young daughter and other form of child pronography in an Internet chat room. He did not have those pictures, but he had 22 pornographic images of other children on his computer hard drive. At issue was the constitutionality of the statute prohibitting “pandering” child pornography. The Eleventh Circuit found the statute unconstitutional as being overbroad.
On appeal, the United States argued that whether the child pornography was real or just purported, the act of offering it could properly be made a crime. The defendant’s lawyer could offer the Supreme Court no example of how the statute might actually trap unwary people. Court observers anticipate that the Court could uphold the law but take a more restrictive view of it.
Concerns about use of the internet by sexual predators to target underage users as well as about pornographic and obscene content on its site led to an investigation of Facebook by The Office New York State Attorney General(â€OAGâ€), which suspected violations of General Business Law 349 and 350 and Executive Law 63(12). This consumer fraud investigation was settled and Facebook agreed to implement a new model to enforce safeguards aimed at protecting its network members, especially children and adolescents, from sexual predators, obscene content and harassment.
The settlement also involved the creation of an Independent Safety and Security Examiner (ISSE), an independent examiner appointed with the Attorney Generalâ€™s approval to monitor Facebookâ€™s compliance with the settlement and its performance in responding to complaints, such as by parents/guardians,Â for the next 2 years.