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The 2d U.S. Circuit Court of Appeals has upheld the employment of investigators or informants posing as underage victims to ensnare sexual predators, rejecting an argument the court said “would effectively remove the ‘sting’ from the government’s sting operations.” U.S. v. Gagliardi, No. 064541-cr. Frank Gagliardi was 62 in July 2005 when he entered the “I Love Older Men” Internet chat room and began instant-messaging with an adult government informant who was posing as “Lorie,” a 13-year-old girl. Gagliardi made several attempts at enticing Lorie to meet and have sex, but Lorie said she was too scared and would feel better if her 13-year-old friend, “Julie,” was present. Gagliardi arranged to meet Lorie and Julie on Oct. 5, 2005, in New York. He was met by agents, arrested and apprised of his rights. After waiving his Miranda rights, he admitted he was there to meet two teenage girls but denied any intention to have sex with them. Gagliardi moved to dismiss the indictment on the grounds that 18 U.S.C. 2422(b) required an actual minor as victim, the evidence was insufficient and the statute was unconstitutionally vague. (Section 2422(b) criminalizes the use of “mail or any facility or means of interstate or foreign commerce” that “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.”) A New York federal court rejected all three challenges; Gagliardi was convicted of attempted enticement and sentenced to serve five years in prison. The 2d Circuit affirmed. Gagliardi claimed that Congress required an actual minor as victim by noting that Congress rejected an amendment to the statute in 1998 that would have included defendants who subjectively believe their target is a minor. He also said there was a proposed amendment in 2005 that “would allow law enforcement officers to represent themselves as minors on the Internet to better protect America’s children from sexual predators,” an amendment that would have been unnecessary as government decoys could already be used. Writing on behalf of the panel, Judge John M. Walker dismissed the challenge, saying, “In arguing that he could not have completed the intended crime of enticement because extraneous circumstances unknown to him rendered completion impossible, Gagliardi essentially asserts a defense of factual impossibility.” In U.S. v. Weisser, 417 F.3d 336 (2005), the 2d Circuit had ruled that “factual impossibility is not defense to a charge of attempt in substantive criminal law.” Walker called Gagliardi’s arguments on the legislative history “similarly unpersuasive.” First, the fact that Congress rejected an amendment to cover people “who represented themselves as being minors is not conclusive evidence that Congress meant to affirmatively exclude those individuals,” he said. Second, “the fact that two legislators proposed a bill in 2005 to explicitly expand �2422(b) is hardly dispositive of the intent of Congress as a whole concerning a statute’s scope.” Gagliardi had argued that the law was vague because it does not define terms such as “persuade,” “induce,” “entice” or “coerce.” But Walker said that the words, while not defined, “are words of common usage that have plain and ordinary meanings.” As for Gagliardi’s claim that the law was overbroad under the First Amendment because it infringed on his right to “engage in fantasy speech with other adults,” Walker said, “the statute punishes the act of enticing or attempting to entice a minor when it is knowingly done; it does not implicate speech.” Moreover, Walker said, “when fantasy speech is directed towards an adult believed to be a minor, it is, in effect, the vehicle through which a pedophile attempts to ensnare a victim.”

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