Romeo and "Julie"

United States v. Joseph, No. 06-5911-cr (2d Cir. September 9, 2008) (Newman, Walker, Sotomayor, CJJ)

Dennis Joseph, through an internet chat room called “I Love Older Men,” met “Julie,” an FBI agent posing as a thirteen-year-old girl. He began exchanging messages with her describing sexual acts he wanted to perform with her, and over time, they made a plan to meet at a café in Manhattan. As the meeting date grew closer, Joseph balked, but “Julie” made him promise that he would really show up. He did, and was arrested. In a post-arrest statement, he indicated that he had no intention of having sex with “Julie.”

Joseph was charged with enticement, under 18 U.S.C. § 2422(b). At trial, he pursued a lack-of-intent defense. Both he and his wife described him as having a proclivity for muscular women, and asserted that he used the internet primarily for role-playing purposes. Indeed, Joseph explained to the jury that he first believed that “Julie” was a sexually experienced adult who was, like him, role-playing. As their interactions evolved, however, he began to worry that she might actually be thirteen. If so, he planned to tell her that he thought she had been an adult, and that he was too old to be involved with her.

A jury convicted him, and Judge Owen sentenced him to ninety-seven months’ imprisonment.

On appeal, Joseph challenged the jury charge as well as two evidentiary rulings. A divided panel tossed his conviction based on the charge, but also criticized the district court’s evidentiary rulings.

1. The Jury Charge

In its instruction on the “enticement” element of the statute, the court charged: “The government only need 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.”

The court found that this last clause was reversible error. Most of the charge properly focused on the defendant’s intent to entice; that is, the attempt to get the girl to have sex with him. However, the “more appealing” language did “not reflect the requirement of an intent to entice.” According to the circuit, this language permitted the jury to convict “even if Joseph did not intend to entice ‘Julie’ into engaging in a sexual act with him.”

Where an instruction defining one of two alternative grounds is legally erroneous, the conviction should be reversed unless the reviewing court “can determine with absolute certainty that the jury based its verdict on the ground on which it was correctly instructed.” Here, the court could not. The government’s summation improperly shifted the jury’s attention from Joseph’s intent to “Julie”’s, and even invited the jury to convict solely on the “more appealing” alternative.

Judge Walker dissented. After a detailed examination of the trial transcript, he concluded that the error in the charge had not been preserved, and that it did not rise to the level of plain error. In a responsive a footnote, the majority suggested that it would have found plain error if it thought that the error was unpreserved.

2. Evidentiary Rulings

a. Defense Precluded

During his testimony, Joseph said that he had visited a website called “Muscleteens,” and used this to corroborate his claim that his primary sexual interest was in muscular women. He also said that the site mostly contained pictures of girls aged eighteen or older. In rebuttal, the government called an FBI agent who had joined that same site, and who located numerous photos of younger girls. The district court admitted those photos, but prevented the defense from establishing that there was no evidence that Joseph had ever looked at them, or even arguing the point in summation.

The circuit was not pleased. It observed that if those photos “become relevant at a retrial,” Joseph “must be accorded an opportunity to present evidence that he did not view them.”

b. Expert Testimony Precluded

A major theme in Joseph’s defense was that he used the internet primarily for fantasy and role-play. He proffered an expert witness who was going to explain the internet’s distinct fantasy culture, but the district judge precluded the testimony as irrelevant.

The circuit disagreed. It held that this testimony appeared to be “highly likely to assist the jury” in understanding the evidence, and urged the district court to “give a more thorough consideration of” the testimony if offered at a retrial.

Dismembers Only

United States v. Pepin, No. 06-1462-cr (2d Cir. February 6, 2008) (Walker, Calabresi, Sack, CJJ)

Humberto Pepin is awaiting a capital trial in the Eastern District of New York, where he is charged, inter alia, with murdering two individuals who crossed him, in ways real or imagined, in the course of his drug dealing enterprise. In a series of pretrial rulings, Judge Weinstein (1) precluded from the penalty phase evidence that Pepin had abused his girlfriend’s children and (2) precluded from both the guilt and penalty phases evidence that Pepin dismembered his victims after he killed them. The government appealed, and the circuit affirmed on the child abuse, but reversed on the dismemberment.

Child Abuse

Judge Weinstein held primarily that the evidence of the child abuse, a non-statutory aggravator, was not relevant to future dangerousness, the theory relied on by the government in the death notice. The judge reasoned that, if spared, Pepin would spend the rest of his life in prison and would not have contact with minors. When the government tried to recast the issue in a new notice as one of “moral condemnation,” and not future dangerousness, the judge stood his ground.

On appeal, the circuit first had to deal with the government’s claim that Judge Weinstein made a legal error - obviously the government was hoping for de novo review. The government lost on this point. In exercising his discretion, Judge Weinstein did not commit a legal error. Despite Supreme Court precedent holding that a wide range of evidence is expected, and perhaps even desirable, at the penalty phase, district courts are not required by law to admit all of the evidence proffered by the government.

Turning next to the district court’s exercise of its discretion, the circuit affirmed, as well. Judge Weinstein supported his ruling with detailed reasoning that was neither arbitrary nor irrational, and the circuit explicitly noted that it was not going to “simply substitute” its judgment for his.

Dismemberment

Judge Weinstein’s primary concern had been that the dismemberment evidence would be too prejudicial to be admitted at the penalty phase. The relevant statute, 18 U.S.C. § 3593(c), permits the exclusion of evidence the prejudicial potential of which “outweighs” its relevance, and the judge concluded that this standard was met. With respect to the guilt phase, Rule 403 permits exclusion only if the prejudice “substantially outweighs” the relevance, a more stringent standard. But, since the same jury was to sit at both phases, the judge concluded that the evidence should be be precluded from the guilt phase as well, to protect the penalty phase.

The circuit first held that Judge Weinstein committed a legal error because he applied the wrong legal standard. In effect, he applied the more lenient § 3593(c) admissibility standard to the guilt phase, when Rule 403 should have governed.

The appellate court did not stop there, however. It also held that the district court abused its discretion by precluding the evidence from the guilt phase, even under Rule 403. Since the issue at the guilt phase was whether the murders were “intentional,” the fact that Pepin dismembered the bodies was “potentially too important a factor in the jury’s determination as to Pepin’s guilt vel non of the crimes of which he is accused for it to be excluded altogether at the guilt phase.” The court went on to note that it might well be that the evidence will be inadmissible at the penalty phase, if there is one, but that “the possibility of curative instructions” would take care of the problem. In any event, the court declined to rule on this issue now.

The court did qualify its ruling somewhat, noting that perhaps “all evidence of dismemberment” should not be admitted at the guilt phase, but that the district court’s “blanket ban” could not stand.