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The judge then gave the jury the common definition of the terms “persuade” and “entice.” He followed those definitions with this instruction: “I instruct you, the government does not need to prove that the defendant attempted to wholly create desire where such 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 , 467 F.3d 179, 202 (2nd Cir. While the Second Circuit was satisfied that the judge had properly instructed the jury on the “entice” element, the appeals court had such grave concerns about the judge’s use of the “more appealing” formulation that it reversed Joseph’s conviction.
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 name ‘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.
“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. ’ ‘Lorie’ sent Joseph a picture, depicting Good at age 13 or 14 years.
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.
“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 the sexual activity the two might enjoy. The federal agents arrested Joseph as he looked into the café window.
That same day he mailed ‘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. After being advised of his rights, Joseph told Berglas that he had come downtown to meet a girl he had met while chatting on the Internet.
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.
He also stated that the few times he looked at the site, the pictures had changed, and that each time they were ‘predominantly 19, 20, 21 and maybe 18-year-old bodybuilders.Tags: Adult Dating, affair dating, sex dating