Nature of the Case
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Facts
D was an officer in the New York City Police Department. D has no prior criminal record and there is no evidence that he ever acted violently or threateningly towards anyone. D was an active member of an Internet sex fetish community called Dark Fetish Network (DFN). D communicated with individuals by email or web chat, usually in the late evening and early morning hours after his work shift. Many of his Internet communications involved the transmission of photographs of women he knew - including his wife, her colleagues from work, and some of his friends and acquaintances - to other DFN users with whom he discussed committing horrific acts of sexual violence. D's 'chats' consisted of gruesome and graphic descriptions of kidnapping, torturing, cooking, raping, murdering, and cannibalizing various women. There is no evidence that he ever learned the real identities of the individuals with whom he chatted, nor is there any evidence that he ever made concrete plans to meet in person or speak by telephone or web camera with any of them. D's wife became concerned after she found several disturbing images of dead women on a laptop that the couple shared. She installed spyware on the computer, which recorded each website entered by the computer's users and captured screen shots every five minutes. She found more disturbing pictures and records of websites that Valle visited. D discussed butchering her and raping and torturing other women whom they knew. She confronted D, moved out of the home with their daughter, and contacted federal authorities. D was arrested and charged with a conspiracy to kidnap several of the women who were the subject of his chats. P identified three alleged co-conspirators: Michael VanHise, a man from New Jersey who was known to Valle as 'mikevanhise81@aol.com' and 'michael19902135@yahoo.com'; an unidentified individual apparently located in Pakistan who used the screen name 'Aly Khan'; and Dale Bolinger, a man in England who was known to Valle only by his screen name, 'Moody Blues.' D had discussed up to one hundred different women in his chats, the indictment alleged five targets of the kidnapping conspiracy: Kathleen Mangan, his wife; Alisa Friscia, Mangan's former co-worker; Andria Noble; Kristen Ponticelli; and Kimberly Sauer, a former college classmate of D's who was living in the Baltimore area. D was also charged with improperly accessing a government computer and obtaining information, in violation of section 1030(a)(2)(B) of the CFAA. P entered into evidence the chats and emails between D and his alleged co-conspirators; testimony from several of the alleged targets of the kidnapping conspiracy, including his wife; other evidence seized from D's computer, including videos and images he downloaded; his search term and browser history; and excerpts from a post-arrest statement. Agent Walsh had testified that he, along with prosecutors and other case agents, reviewed all of the emails and chats found on D's computer and concluded that D's conversations with 21 of the 24 individuals whom he 'met' on DFN were 'fantasy.' As for the other three, Walsh concluded that they were real because they 'described dates, names, and activities that you would use to conduct a real crime.' The jury returned a verdict of guilty on both counts. D moved for a judgment of acquittal pursuant to Rule 29 or, in the alternative, for a new trial pursuant to Rule 33 on both counts. The court granted the Rule 29 motion with respect to the conspiracy charge. The judges concluded that the prosecutors had failed to prove beyond a reasonable doubt that D and his alleged co-conspirators had entered into a conspiracy to kidnap or that D had formed the requisite specific intent to kidnap. Contrary to Walsh's testimony the judge concluded that there was no discernible difference between the 'real' and 'fantasy' chats. The judge concluded that no reasonable juror could have found beyond a reasonable doubt that the allegedly 'real' chats evinced criminal intent any more than did the acknowledged 'fantasy' chats. P appealed.
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