Over a defense objection, the prosecution was permitted to introduce pictures of young girls from the group.
The court explained: “Joseph sought to defend the charge against him by claiming that he was only engaging in cybersex conversation (simulating sex via sexual communications over the Internet), without any intent to entice ‘Julie’ to engage in sexual conduct with him.
He claimed that he agreed to meet her only to see if she was an adult role-player or really a child, and that, if she turned out to be a child, he would do nothing further.
‘Lorie’ later provided Joseph with ‘Julie’s’ screen name. “[Joseph]: I just have a problem because I am so much older than you. “[Joseph]: But I will definitely be there and we can see then.” , supra, Slip Opinion at 2-5 [internal citations omitted].
Joseph began exchanging messages with ‘Julie,’ describing sexual acts he wanted to perform with her. But “Julie” was not there the next morning when Joseph showed up at the café – the FBI was.
First, the prosecutor told the jury that ‘the defendant wanted Julie to think that engaging in a sexual act with him would be appealing and enticing.
And that, ladies and gentlemen, is a federal crime.’ Although the word ‘enticing’ was used, it was used to reflect the effect on ‘Julie,’ not whether Joseph’s intent was to entice.
If jurors thought that Joseph only wanted to make ‘Julie’ think that sexual conduct with him would be appealing, but did not intend to entice her to engage in such conduct with him, they would have convicted him for having a cybersex conversation, which is not a crime, but not for violating section 2242(b).
“The risk of an improper conviction based only on the ‘more appealing formulation was heightened by the Government’s summation.
He said she was too familiar with sexual terminology to be a real teenager so he surmised that she was part of a “make-believe, pretend world.” He told the jury that he also believed “Julie” was an adult engaged in the same kind of role-playing.
He said he became more convinced after “Julie” (who had passed herself off as a young gymnast) sent him a picture of herself with long nails because it would be difficult for a gymnast to have long nails. At this point Joseph told the jury he started having second-thoughts about the “Lorie” and “Julie” being adults role-playing after he arranged the meeting with “Julie.” He said that Julie’s angry tone after he told her that he could not “promise” a meeting made him think she might actually be a teenager.
The Second Circuit explained: “Joseph admitted joining the site, which describes itself as a group encouraging users to post pictures of girls ‘between 5 and 18’ showing off their muscles.