-1- 06-4541-cr United States v. Gagliardi UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 3 August Term…

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06-4541-cr
United States v. Gagliardi
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
3
August Term 2007 4
(Argued: September 4, 2007 Decided: October 22, 2007) 5
Docket No. 06-4541-cr 6
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UNITED STATES OF AMERICA, 8
9
Appellee, 10
11
-- v. -- 12
13
FRANK GAGLIARDI, 14
15
Defendant-Appellant. 16
17
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19
B e f o r e : WALKER, CALABRESI, and SACK, Circuit Judges. 20
Appeal by Defendant Frank Gagliardi from a judgment of 21
conviction of one count of attempt to entice a minor to engage in 22
illegal sexual activity pursuant to 18 U.S.C. § 2422(b), entered 23
in the United States District Court for the Southern District of 24
New York (Sidney H. Stein, Judge). Because we find that § 25
2422(b) does not require the involvement of an actual minor and 26
that the statute is neither vague nor overbroad, the judgment is 27
AFFIRMED. 28
MICHAEL S. POLLOK, New York, 29
N.Y., for Defendant-Appellant. 30
31
MARGARET GARNETT, Assistant 32
United States Attorney, of 33
counsel, (Benjamin Gruenstein, 34
Assistant United States 35

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Attorney, of counsel, on the 1
brief), for Michael J. Garcia, 2
United States Attorney for the 3
Southern District of New York, 4
New York, N.Y., for Appellee. 5
JOHN M. WALKER, JR., Circuit Judge: 6
Defendant-Appellant Frank Gagliardi appeals from his 7
conviction on one count of attempting to entice a minor to engage 8
in prohibited sexual activity in violation of 18 U.S.C. § 9
2422(b). He argues that § 2422(b) requires an actual minor 10
victim and is unconstitutionally vague and overbroad. In the 11
instant case, the targets of Gagliardi’s attempted enticement 12
were not actual minors but adults posing as minors. We now join 13
several other circuits in holding that 18 U.S.C. § 2422(b) does 14
not require that the enticement victim be an actual “individual 15
who has not attained the age of 18 years” and is neither 16
unconstitutionally vague nor overbroad. Because Gagliardi’s 17
other arguments challenging his conviction are without merit, we 18
affirm the judgment of conviction. 19
BACKGROUND 20
On July 7, 2005, Gagliardi, then sixty-two years old, 21
entered an Internet chat room called “I Love Older Men” and 22
initiated an instant-message conversation with “Lorie,” an adult 23
government informant posing as a thirteen-year-old girl under the 24
screen name “Teen2HoT4u.” The informant was a private citizen 25
who had previously assisted the Federal Bureau of Investigation 26

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(“FBI”) in identifying child predators on the Internet. During 1
this initial conversation, Gagliardi tried to verify that Lorie 2
was in fact thirteen years old and broached the topic of sex. 3
Gagliardi contacted Lorie again on August 29, 2005 and had 4
the first of many online conversations in which he expressed his 5
desire to have sex with her and used sexually explicit language 6
to describe the acts he wished to perform with her. Gagliardi 7
even offered to pay Lorie $200 to have sex with him, before 8
telling her, “I want to meet you . . . make love to me anytime . 9
. . no strings attached.” In the following weeks, Gagliardi 10
repeatedly tried to convince Lorie to meet him in person, asking 11
her to “tell me where is good for you, I come to pick you up,” or 12
offering to meet her in a public place. 13
On September 1, 2005, Lorie indicated that she was “scared” 14
to meet Gagliardi alone and suggested that he contact her 15
thirteen-year-old friend Julie. “Julie” was in fact FBI Special 16
Agent Austin Berglas, who was working in collaboration with the 17
informant. Gagliardi suggested that the two girls come together 18
to meet him, telling Lorie, “I will dream about you 2 all night.” 19
On September 16, 2005, Gagliardi e-mailed Lorie a picture of 20
himself, and the informant sent him a photograph that was taken 21
of her when she was approximately thirteen. 22
Taking up Lorie’s suggestion, Gagliardi e-mailed Julie, 23
introducing himself as a friend of Lorie, asking for her picture, 24

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and requesting that she accompany Lorie if they ever set up a 1
meeting. On September 29, 2005, Gagliardi initiated an instant- 2
message chat with Julie during which he asked if she was willing 3
to meet him and described the sexual activities that they could 4
engage in. 5
Gagliardi subsequently arranged to meet Lorie and Julie in 6
lower Manhattan on the morning of October 5, 2005. FBI agents 7
placed the pre-arranged meeting place under surveillance and 8
arrested Gagliardi as he waited in his car. After being advised 9
of and agreeing to waive his Miranda rights, Gagliardi admitted 10
to the agents that he was at the location to meet two thirteen- 11
year-old girls with whom he had previously had sexually explicit 12
online conversations; he denied, however, that he intended to 13
have sex with them. During a post-arrest inventory search of 14
Gagliardi’s car, the agents found two condoms and a Viagra pill. 15
Gagliardi was charged with attempt to entice, induce, or persuade 16
a minor to engage in illegal sexual activity, in violation of 18 17
U.S.C. § 2422(b). 18
At trial, the government relied on the testimony of the 19
informant and Agent Berglas, together with Gagliardi’s electronic 20
communications with “Lorie” and “Julie.” Gagliardi moved to 21
dismiss the indictment on the grounds that: (1) the involvement 22
of an actual minor was a prerequisite to a conviction under 18 23
U.S.C. § 2422(b); (2) the statute was unconstitutionally vague; 24

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and (3) the evidence was insufficient to show that Gagliardi had 1
committed an attempt. 2
The district court (Sidney H. Stein, Judge) denied the 3
motion. See United States v. Gagliardi, No. 05 CR 1265(SHS), 4
2006 WL 1459850 (S.D.N.Y. May 26, 2006). The district court 5
concluded that § 2422(b) did not require an actual minor victim 6
because the statute provided for criminal liability for attempted 7
enticement of a minor, and one could demonstrate that Gagliardi 8
had the intent and took a substantial step toward committing the 9
crime, as required for attempt liability, even though it was 10
factually impossible for him to commit the substantive offense. 11
See id. at *2. It also concluded that the evidence at trial was, 12
in fact, sufficient to demonstrate the elements of intent and 13
substantial step. See id. at *6. The district court further 14
determined that the statute was not unconstitutionally vague 15
because it was sufficiently definite to provide notice to an 16
ordinary person of what conduct was prohibited. See id. at *3. 17
On May 16, 2006, Gagliardi was convicted by a jury and 18
sentenced to the mandatory minimum imprisonment term of sixty 19
months. The defendant moved to set aside the verdict on the 20
basis of government entrapment and insufficiency of evidence. 21
The district court denied the motion, reasoning that “[e]ven if 22
Gagliardi had adduced enough credible evidence of inducement that 23
no rational trier of fact could have concluded that the 24

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government did not induce the crime, a rational juror could 1
nevertheless have rejected Gagliardi’s entrapment defense by 2
finding that he was predisposed to commit the crime.” United 3
States v. Gagliardi, No. 05 CR 1265(SHS), 2006 WL 2597895, at *2 4
(S.D.N.Y. Sept. 7, 2006). With respect to the sufficiency of the 5
evidence, the court found that based on Gagliardi’s numerous 6
sexually explicit communications with Lorie and Julie, his 7
exchange of photographs, and his arrival at the pre-arranged 8
meeting place with condoms and Viagra, a rational juror could 9
have concluded that Gagliardi had the requisite intent and took a 10
substantial step toward commission of the crime. See id. at *2- 11
3. This appeal followed. 12
DISCUSSION 13
Gagliardi raises six issues on appeal. He contends that the 14
plain meaning of 18 U.S.C. § 2422(b) requires that the victim of 15
enticement or attempted enticement be an actual minor and that, 16
because the informant and Agent Berglas were adults posing as 17
minors, his conviction cannot stand; that § 2422(b) is 18
unconstitutionally vague and overbroad; that § 2422(b)’s 19
mandatory minimum sentence violates the separation of powers 20
doctrine or that its imposition in his case resulted from 21
prosecutorial sentencing manipulation; that reversal is required 22
because his conduct could only be construed as conspiring to 23
attempt to violate the law, an offense that is “legally 24

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impossible” to commit when the co-conspirators are all government 1
decoys, Appellant’s Br. at 45; that the evidence at trial was 2
insufficient to support a conviction for attempted enticement or 3
to defeat his entrapment defense; and that the district court 4
erred in admitting into evidence e-mails and transcripts of his 5
instant message chats without sufficient authentication. 6
I. Involvement of an “Actual Minor” 7
Section 2422(b) of Title 18 imposes criminal liability on 8
anyone who “knowingly persuades, induces, entices, or coerces any 9
individual who has not attained the age of 18 years, to engage in 10
prostitution or any sexual activity for which any person can be 11
charged with a criminal offense, or attempts to do so.” 18 12
U.S.C. § 2422(b). Gagliardi argues that the statute’s plain 13
meaning and legislative history unambiguously indicate Congress’s 14
intent to criminalize such conduct only when directed toward an 15
actual minor. 16
To support his argument, Gagliardi points to Congress’s 17
rejection of a 1998 amendment to § 2422(b) that would have 18
expanded the statute to reach a defendant who subjectively 19
believed that the target of his enticement was a minor. Compare 20
H.R. Rep. No. 105-557, at 2 (1998), reprinted in 1998 21
U.S.C.C.A.N. 678, 678 (proposing an amendment that would extend 22
to one who “knowingly contacts an individual, who has been 23
represented to the person making the contact as not having 24

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attained the age of 18 years”), with Protection of Children from 1
Sexual Predators Act of 1998, Pub. L. No. 105-314, § 102, 112 2
Stat. 2974, 2975-76 (amending § 2422(b) without this change). He 3
contends that in refusing to expand the statute in this manner, 4
Congress “made clear that 18 U.S.C. § 2422(b) only criminalizes 5
an attempt involving a minor.” Appellant’s Br. at 33-34. 6
Gagliardi also infers from a proposed 2005 amendment that 7
would “allow law enforcement officers to represent themselves as 8
minors on the Internet to better protect America’s children from 9
sexual predators,” 151 Cong. Rec. S9833 (daily ed. Sept. 8, 10
2005), that “Congress does not believe that 18 U.S.C. § 2422(b) 11
applies to undercover law enforcement officials or cooperating 12
witnesses representing themselves as being under the age of 18." 13
Appellant’s Br. at 35. He argues that such a proposal would be 14
unnecessary if the statute already applied to government decoys. 15
We disagree. 16
As an initial matter, we note that Gagliardi’s argument has 17
been squarely rejected by the six other circuits to have 18
considered the issue, and for sound reasons. See, e.g., United 19
States v. Hicks, 457 F.3d 838, 841 (8th Cir. 2006) (“[A] 20
defendant may be convicted of attempting to violate § 2422(b) 21
even if the attempt is made towards someone the defendant 22
believes is a minor but who is actually not a minor.”); United 23
States v. Tykarsky, 446 F.3d 458, 466 (3d Cir. 2006) (“Congress 24

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did not intend to allow the use of an adult decoy, rather than an 1
actual minor, to be asserted as a defense to § 2422(b).”); see 2
also United States v. Sims, 428 F.3d 945, 960 (10th Cir. 2005); 3
United States v. Meek, 366 F.3d 705, 717-20 (9th Cir. 2004); 4
United States v. Root, 296 F.3d 1222, 1227-29 (11th Cir. 2002); 5
United States v. Farner, 251 F.3d 510, 513 (5th Cir. 2001). 6
In interpreting a statute, we look first to its text to 7
determine “‘whether the language at issue has a plain and 8
unambiguous meaning with regard to the particular dispute in the 9
case.’” In re Med Diversified, Inc., 461 F.3d 251, 255 (2d Cir. 10
2006) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 11
(1997)). Section 2422(b) explicitly proscribes attempts to 12
entice a minor, which suggests that actual success is not 13
required for a conviction and that a defendant may thus be found 14
guilty if he fails to entice an actual minor because the target 15
whom he believes to be underage is in fact an adult. See 16
Tykarsky, 446 F.3d at 467 (“The attempt provision is . . . most 17
naturally read to focus on the subjective intent of the 18
defendant, not the actual age of the victim.”); Meek, 366 F.3d at 19
718. 20
In arguing that he could not have completed the intended 21
crime of enticement because extraneous circumstances unknown to 22
him rendered completion impossible, Gagliardi essentially asserts 23
a defense of factual impossibility. We have held, however, that 24

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“factual impossibility is not a defense to a charge of attempt in 1
substantive criminal law.” United States v. Weisser, 417 F.3d 2
336, 352 (2d Cir. 2005). 3
Gagliardi’s two arguments from the statute’s legislative 4
history are similarly unpersuasive. Cf. United States v. Craft, 5
535 U.S. 274, 287 (2002) (“[F]ailed legislative proposals are ‘a 6
particularly dangerous ground on which to rest an interpretation 7
of a prior statute . . . .’” (quoting Pension Benefit Guar. Corp. 8
v. LTV Corp., 496 U.S. 633, 650 (1990))). His proposed 9
interpretation of that history provides just one possible reading 10
of Congress’s intent. As to Gagliardi’s first argument, the fact 11
that Congress rejected a supplemental provision to § 2422(b) that 12
would have specifically covered individuals who represented 13
themselves as being minors is not conclusive evidence that 14
Congress meant to affirmatively exclude those individuals. It is 15
equally possible that Congress did not adopt the amendment 16
because it believed that the text of § 2422(b), expressly 17
proscribing the attempt, was sufficient to include victims 18
believed to be minors. See Pension Benefit Guar. Corp., 496 U.S. 19
at 650 (“Congressional inaction lacks persuasive significance 20
because several equally tenable inferences may be drawn from such 21
inaction, including the inference that the existing legislation 22
already incorporated the offered change.” (internal quotation 23
marks omitted)). 24

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As to Gagliardi’s second argument, the fact that two 1
legislators proposed a bill in 2005 to explicitly expand § 2
2422(b) is hardly dispositive of the intent of Congress as a 3
whole concerning the statute’s scope. Congress could have been 4
aware that several circuits had already interpreted § 2422(b) to 5
include adults posing as minors and found no need to amend the 6
statute. See Lorillard v. Pons, 434 U.S. 575, 580 (1978) 7
(“Congress is presumed to be aware of . . . [a] judicial 8
interpretation of a statute . . . .”); United States v. 9
Gagliardi, No. 05 CR 1265(SHS), 2006 WL 1459850, at *4 (S.D.N.Y. 10
May 26, 2006) (noting that Congress has failed to move forward on 11
the proposed legislation). Thus, Gagliardi’s arguments on this 12
score are unconvincing. 13
At the time of § 2422(b)’s 1998 amendment, the House 14
Judiciary Committee pointed out that 15
law enforcement plays an important role in discovering child 16
sex offenders on the Internet before they are able to 17
victimize an actual child. Those who believe they are 18
victimizing children, even if they come into contact with a 19
law enforcement officer who poses as a child, should be 20
punished just as if a real child were involved. It is for 21
this reason that several provisions in this Act prohibit 22
certain conduct involving minors and assumed minors. 23
24
H.R. Rep. No. 105-557, at 19. The interpretation advanced by 25
Gagliardi would effectively remove the “sting” from the 26
government’s sting operations, preventing undercover officers 27
from obtaining a conviction, or it would require them to use an 28
actual child as a decoy, which they would obviously be reluctant 29

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to do. Cf. Tykarsky, 446 F.3d at 468 (“It is common knowledge 1
that law enforcement officials rely heavily on decoys and sting 2
operations in enforcing solicitation and child predation crimes 3
such as § 2422(b). We consider it unlikely that Congress 4
intended to prohibit this method of enforcement.”). Because such 5
a result would significantly impede legitimate enforcement of the 6
statute, and because the statute’s language is clear, we reject 7
Gagliardi’s interpretation and join the Third, Fifth, Eighth, 8
Ninth, Tenth, and Eleventh Circuits in holding that the 9
involvement of an actual minor is not a prerequisite to an 10
attempt conviction under § 2422(b). 11
II. Vagueness and Overbreadth 12
Gagliardi next argues that § 2422(b) is vague and overbroad 13
on its face and as applied. He contends that the statute is 14
unconstitutionally vague because it does not define the terms 15
“attempt,” “persuade,” “induce,” “entice,” or “coerce,” and 16
ordinary people could differ in their interpretation of the 17
meaning of these words. He contends that the statute is 18
overbroad because it suppresses protected speech by infringing on 19
the right of an adult “to freely engage in fantasy speech with 20
other adults.” Appellant’s Br. at 38. We reject both challenges 21
and now join the five other circuits that have already done so. 22
See, e.g., Tykarsky, 446 F.3d at 472-73; United States v. Thomas, 23
410 F.3d 1235, 1243-44 (10th Cir. 2005); Meek, 366 F.3d at 722; 24

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United States v. Panfil, 338 F.3d 1299, 1301 (11th Cir. 2003); 1
United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000). 2
A penal statute is not void for vagueness if it defines the 3
offense (1) “with sufficient definiteness that ordinary people 4
can understand what conduct is prohibited” and (2) “in a manner 5
that does not encourage arbitrary and discriminatory 6
enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983); see 7
also Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926). 8
Section 2422(b) satisfies both of these requirements. 9
The words “attempt,” “persuade,” “induce,” “entice,” or 10
“coerce,” though not defined in the statute, are words of common 11
usage that have plain and ordinary meanings. See Tykarsky, 446 12
F.3d at 473; Panfil, 338 F.3d at 1301. Although, as Gagliardi 13
argues, there may be some uncertainty as to the precise 14
demarcation between “persuading,” which is criminalized, and 15
“asking,” which is not, this uncertainty is not cause for 16
constitutional concern because the statute’s terms are 17
sufficiently definite that ordinary people using common sense 18
could grasp the nature of the prohibited conduct. See Tykarsky, 19
446 F.3d at 473; cf. United States v. Cullen, 499 F.3d 157, 163, 20
(2d Cir. 2007) (“Although we recognize in many English words 21
there lurk uncertainties, to meet the fair warning prong an ounce 22
of common sense is worth more than an 800-page dictionary.” 23
(citation omitted)). 24

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The statute also establishes the requisite minimal 1
guidelines to prevent arbitrary or discriminatory enforcement, 2
see Kolender, 461 U.S. at 358, in that it applies only to those 3
who “knowingly” engage in the prohibited conduct. This scienter 4
requirement narrows the scope of § 2422(b) as well as the ability 5
of prosecutors and law enforcement officers to act based on their 6
own preferences. See Panfil, 338 F.3d at 1301. 7
We likewise reject Gagliardi’s overbreadth argument. “The 8
overbreadth doctrine prohibits the Government from banning 9
unprotected speech if a substantial amount of protected speech is 10
prohibited or chilled in the process.” Ashcroft v. Free Speech 11
Coal., 535 U.S. 234, 255 (2002). Gagliardi contends that § 12
2422(b) impermissibly suppresses fantasy speech with adults who 13
happen to be posing as minors. Yet the statute punishes the act 14
of enticing or attempting to entice a minor when it is knowingly 15
done; it does not implicate speech. Moreover, when fantasy 16
speech is directed toward an adult believed to be a minor, it is, 17
in effect, the vehicle through which a pedophile attempts to 18
ensnare a victim, cf. Meek, 366 F.3d at 721, and we have held, 19
unremarkably, that “‘[s]peech is not protected by the First 20
Amendment when it is the very vehicle of the crime itself,’” 21
United States v. Rowlee, 899 F.2d 1275, 1278 (2d Cir. 1990) 22
(citation omitted); see also Giboney v. Empire Storage & Ice Co., 23
336 U.S. 490, 498 (1949) (“It rarely has been suggested that the 24

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constitutional freedom for speech and press extends its immunity 1
to speech or writing used as an integral part of conduct in 2
violation of a valid criminal statute.”). By Gagliardi’s own 3
admission in his brief, “there is no First Amendment right to 4
persuade minors to engage in illegal sex acts,” Appellant’s Br. 5
at 38; see also Tykarsky, 446 F.3d at 473; there is likewise no 6
First Amendment right to persuade one whom the accused believes 7
to be a minor to engage in criminal sexual conduct. 8
Because no protected speech would be chilled by § 2422(b), 9
and because the statute’s terms are sufficiently unambiguous, we 10
conclude that § 2422(b) is not unconstitutionally vague or 11
overbroad. 12
III. Gagliardi’s Remaining Challenges 13
A. Separation of Powers and Sentencing Manipulation 14
Gagliardi contends that § 2422(b) is unconstitutional as 15
applied to him because its application violated the separation of 16
powers doctrine, and that his conviction should therefore be 17
reversed. Specifically, Gagliardi argues that because the 18
offense carries a mandatory minimum sentence, the prosecutor’s 19
charging discretion has sentencing implications and thus 20
constitutes executive interference with a judicial function. In 21
addition, he claims that the imposition of the mandatory minimum 22
sentence was the result of sentencing manipulation, in that the 23
government deliberately selected the age of thirteen for its 24

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decoys to maximize the probability of conviction, and asks us to 1
remand for resentencing. Both of these arguments are without 2
merit. First, the executive branch’s discretion to charge an 3
offense that carries a mandatory minimum does not result in 4
executive aggrandizement at the expense of the judiciary. See 5
United States v. Jimenez, 451 F.3d 97, 102 (2d Cir. 2006) (per 6
curiam) (“[M]andatory minimums have taken on increased 7
significance after Booker -- in that they remain binding on the 8
district courts and work to restrain their newly acquired 9
discretion . . . .”). 10
Second, this Court has not yet recognized the doctrine of 11
sentencing manipulation, which occurs “‘when the government 12
engages in improper conduct that has the effect of increasing the 13
defendant’s sentence.’” United States v. Gomez, 103 F.3d 249, 14
256 (2d Cir. 1997) (quoting United States v. Okey, 47 F.3d 238, 15
240 (7th Cir. 1995)). It has, however, suggested that if a 16
departure based on sentencing manipulation were valid, “it would 17
likely require a showing of ‘outrageous’ government conduct,” 18
United States v. Bala, 236 F.3d 87, 93 (2d Cir. 2000). Even if 19
we were to assume that sentencing manipulation is a valid 20
departure ground, Gagliardi has not made the requisite showing in 21
this case. There is nothing outrageous about the government’s 22
decision to have its decoys present themselves as age thirteen, 23
rather than fourteen or sixteen. 24

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B. Conspiracy 1
Gagliardi next asks us to reverse his conviction because his 2
conduct could only be properly construed as a conspiracy to 3
attempt to violate § 2422(b), and finding such a conspiracy is 4
legally impossible in this case because the requisite criminal 5
agreement is absent when both co-conspirators are government 6
decoys. See United States v. Andrades, 169 F.3d 131, 135 (2d 7
Cir. 1999). He contends that it was improper for the government, 8
knowing that it could not obtain a conviction for conspiracy, to 9
charge him with attempt instead. This argument is frivolous on 10
its face. There is no requirement that the government charge a 11
defendant with a crime that he did not commit instead of or in 12
addition to one that he did commit. See United States v. Bonnet- 13
Grullon, 212 F.3d 692, 701 (2d Cir. 2000), superseded by statute 14
on other grounds, Prosecutorial Remedies and Other Tools To End 15
the Exploitation of Children Today (PROTECT) Act of 2003, Pub. L. 16
No. 108-21, 117 Stat. 650, as recognized in United States v. 17
Leiva-Deras, 359 F.3d 183 (2d Cir. 2004) (“It is well established 18
that the decision as to what federal charges to bring against any 19
given suspect is within the province of the Executive Branch of 20
the government.”). 21
Gagliardi further contends that the district court erred in 22
failing to “instruct[] the jury on conspiracy as a lesser 23
included (and legally impossible) offense.” Appellant’s Br. at 24

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51. Putting aside the fact that there is no evidence in the 1
record that Gagliardi even requested such an instruction at 2
trial, this argument fails because conspiracy to attempt a crime 3
is not a lesser included offense of attempt. We have stated 4
that, “for an uncharged offense to be ‘included,’ all of its 5
elements must also be elements of the offense charged.” United 6
States v. Giampino, 680 F.2d 898, 901 (2d Cir. 1982). Gagliardi 7
admits in his own brief that “‘[a]n attempt requires but one 8
person for the offense; a conspiracy requires at least two. A 9
conspiracy also requires an agreement; an attempt does not.’” 10
Appellant’s Br. at 52 (quoting United States v. Madonna, 582 F.2d 11
704, 705 (2d Cir. 1978) (per curiam)). Thus, the district court 12
did not err in failing to give the jury a lesser included offense 13
charge. 14
C. Sufficiency Challenges 15
1. Entrapment 16
The first of Gagliardi’s two attacks on the sufficiency of 17
the evidence pertains to the entrapment defense, under which a 18
defendant must first prove government inducement by a 19
preponderance of the evidence. The burden then shifts to the 20
government to show that the defendant was predisposed to commit 21
the crime beyond a reasonable doubt. See United States v. Brand, 22
467 F.3d 179, 189 (2d Cir. 2006), cert. denied, 127 S. Ct. 2150 23
(2007). Gagliardi argues that the evidence was insufficient to 24

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prove predisposition because he had no history of engaging in the 1
illegal conduct. 2
“A defendant challenging the sufficiency of trial evidence 3
‘bears a heavy burden,’ and the reviewing court must ‘view the 4
evidence presented in the light most favorable to the 5
government’” and draw all reasonable inferences in the 6
government’s favor. United States v. Giovannelli, 464 F.3d 346, 7
349 (2d Cir. 2006) (per curiam) (citation omitted), cert. denied, 8
--- S. Ct. ----, 76 U.S.L.W. 3009 (2007). The jury’s verdict 9
will be affirmed unless “‘no rational trier of fact could have 10
found all of the elements of the crime beyond a reasonable 11
doubt.’” Id. (quoting United States v. Schwarz, 283 F.3d 76, 105 12
(2d Cir. 2002)). 13
Viewing the evidence in the light most favorable to the 14
government, Gagliardi’s sufficiency challenge fails. A rational 15
trier of fact could have found beyond a reasonable doubt that 16
Gagliardi was predisposed to commit the offense. Predisposition 17
can be shown by evidence of a pre-existing design to commit the 18
crime or a ready response to the inducement. See United States v. 19
Salerno, 66 F.3d 544, 547 (2d Cir. 1995). Here, the defendant 20
chose to enter a chat room conspicuously labeled “I Love Older 21
Men,” contacted Lorie without solicitation after discovering from 22
her online profile that she was thirteen, offered to pay Lorie to 23
have sex with him after just one conversation, vividly described 24

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the sexual acts he wished to perform with her, and attempted on 1
numerous occasions to set up a meeting with her. Thus, even if 2
Gagliardi could establish government inducement, and even if he 3
had never before exhibited pedophilic tendencies, there was 4
sufficient evidence for a reasonable juror to conclude that he 5
stood ready and willing to violate § 2422(b). See Brand, 467 6
F.3d at 189-95 (discussing similar factual circumstances and 7
finding the evidence sufficient to establish predisposition). 8
2. Criminal Attempt 9
Gagliardi’s second attack on the sufficiency of trial 10
evidence pertains to the elements required for an attempt 11
conviction. To establish attempt, the government must prove that 12
a defendant had the intent to commit the underlying crime and 13
that he took a substantial step toward its completion. See, 14
e.g., id. at 202. Gagliardi contends that the government failed 15
to prove both of these elements beyond a reasonable doubt. This 16
argument is meritless. 17
In United States v. Brand, in answering a similar 18
sufficiency challenge, we discussed several facts supporting a 19
finding that the defendant attempted to entice a minor to engage 20
in sexual activity. See id. We noted that intent was shown by 21
the fact that the defendant initiated contact with the two 22
victims in a chat room suggestively entitled “I Love Older Men,” 23
that he repeatedly made sexual advances toward both girls and 24

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asked for their pictures, that he continuously steered the 1
conversation in the direction of sexual contact and described the 2
sexual acts that he would engage in with them, and that he 3
repeatedly attempted to set up a meeting with one of them. See 4
id. at 202-04. Finally, we found that the defendant took a 5
substantial step toward the completion of the crime because he 6
actually went to the designated meeting place with condoms in the 7
glove compartment of his car. See id. at 204. 8
The same facts are present here. Gagliardi initiated 9
contact with Lorie in the same chat room as in Brand, repeatedly 10
made sexual advances toward Lorie and Julie, asked them for their 11
pictures, steered the conversation toward sexual activities, 12
described the acts that he would engage in with them, tried to 13
set up a meeting with both of them, and appeared for a meeting 14
with condoms and a Viagra pill in his car. This evidence was 15
easily sufficient for a reasonable juror to have found beyond a 16
reasonable doubt that Gagliardi had the requisite intent to 17
violate § 2422(b). A reasonable juror could also have found that 18
Gagliardi took a substantial step beyond mere preparation when he 19
arrived at the meeting place with two condoms and a Viagra pill 20
in his car. See also United States v. Munro, 394 F.3d 865, 870 21
(10th Cir. 2005). In light of this conclusion, there is no need 22
for us to reach the government’s argument that because the 23
conviction was for attempt to entice rather than attempt to 24

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engage in a prohibited sexual act, the substantial step occurred 1
well before Gagliardi appeared at the designated meeting place, 2
when he repeatedly solicited Lorie and Julie over the Internet. 3
D. Authentication of Documents 4
Gagliardi’s final claim is that the e-mails and transcripts 5
of instant-message chats offered by the government were not 6
properly authenticated. He argues that because the documents 7
were largely cut from his electronic communications and then 8
pasted into word processing files, they were not originals and 9
could have been subject to editing by the government. Gagliardi 10
contends that the communications could even have been completely 11
fabricated. Due to these “highly suspicious” circumstances, 12
Appellant’s Br. at 72, Gagliardi submits that the government 13
failed to establish authenticity and the trial court therefore 14
erred in admitting the evidence. We disagree. 15
We review a district court’s evidentiary rulings for abuse 16
of discretion. Reilly v. Natwest Mkts. Group Inc., 181 F.3d 253, 17
266 (2d Cir. 1999). The bar for authentication of evidence is 18
not particularly high. United States v. Dhinsa, 243 F.3d 635, 19
658 (2d Cir. 2001). “The requirement of authentication . . . is 20
satisfied by evidence sufficient to support a finding that the 21
matter in question is what its proponent claims.” Fed. R. Evid. 22
901(a). Generally, a document is properly authenticated if a 23
reasonable juror could find in favor of authenticity. United 24

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States v. Tin Yat Chin, 371 F.3d 31, 38 (2d Cir. 2004). The 1
proponent need not “rule out all possibilities inconsistent with 2
authenticity, or to prove beyond any doubt that the evidence is 3
what it purports to be.” United States v. Pluta, 176 F.3d 43, 49 4
(2d Cir. 1999) (internal quotation marks and citation omitted). 5
We have stated that the standard for authentication is one 6
of “reasonable likelihood,” id. (internal quotation marks and 7
citation omitted), and is “minimal,” Tin Yat Chin, 371 F.3d at 8
38. The testimony of a witness with knowledge that a matter is 9
what it is claimed to be is sufficient to satisfy this standard. 10
See Fed. R. Evid. 901(b)(1). In this case, both the informant 11
and Agent Berglas testified that the exhibits were in fact 12
accurate records of Gagliardi’s conversations with Lorie and 13
Julie. Based on their testimony, a reasonable juror could have 14
found that the exhibits did represent those conversations, 15
notwithstanding that the e-mails and online chats were editable. 16
The district court did not abuse its discretion in admitting the 17
documents into evidence. 18
CONCLUSION 19
For the foregoing reasons, the judgment of conviction is 20
AFFIRMED. 21
22

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