United States v. Joseph , 542 F.3d 13 ( 2008 )

JOHN M. WALKER, JR., Circuit Judge,

dissenting:

I disagree with the majority’s conclusion that Joseph objected to the “more appealing” language at trial and therefore preserved that challenge for appellate review. Even if Joseph initially raised such an objection — and I do not believe he did so with sufficient clarity or particularity — the record shows that by the end of the charge conference, he had abandoned it.

Because Joseph did not preserve his challenge at trial, we should review that claim for plain error, United States v. Cohen, 427 F.3d 164, 172 (2d Cir.2005), “which is a very stringent standard requiring a serious injustice or a conviction in a manner inconsistent with fairness and integrity of judicial proceedings,” United States v. Walsh, 194 F.3d 37, 53-54 (2d Cir.1999) (internal quotation marks and citation omitted). Under the plain error standard, Joseph bears the burden of showing that he was prejudiced, United States v. Logan, 419 F.3d 172, 179 (2d Cir.2005), but he cannot do so because there was conclusive evidence of his guilt so that any error in the jury charge did not “affect[] the outcome of the district court proceedings,” United States v. Skelly, 442 F.3d 94, 99 (2d Cir.2006) (internal quotation marks and citation omitted). I would therefore affirm the judgment of conviction.

I. Joseph’s Objections at the Charge Conference

The charge conference included an extensive discussion regarding the following sentence in the proposed charge: “The government only need[] show, beyond a reasonable doubt, the defendant ... made the possibility of the sexual activity more appealing.” App. at 150.5-.6. There was some additional, albeit brief, discussion of the portion of the charge defining the terms “persuade” and “entice.”

Three purported objections to these instructions are at issue in this case, the first of which I believe was not properly made and, in any event, was abandoned. For ease of reference, I will refer to them as objections A, B, and C. Joseph argues, and the majority maintains, that he objected (A) to the language that the government only needed to show that Joseph “made the possibility of the sexual activity more appealing.” The objection, of course, would be that this language leaves out enticement, which is a part of the crime, although enticement is charged elsewhere, including as an alternative theory in the same sentence. The government argues, and I agree, that at trial Joseph did not make objection A (to the “more appealing” language itself); he only objected (B) to the omission of the words “with him,” which he wished to insert just before “more appealing,” and (C) to the proposed charge’s inclusion of explicit definitions for the terms “entice” and “persuade” as opposed to a more general allusion to the plain meaning of those terms.

On my reading of the record, the charge conference proceeded in three “phases.” During phase I, Joseph made the broad-brush argument that the proposed charge, which, as the majority notes, was adapted from a Ninth Circuit case, see Maj. Op. at 18-19, “impermissibly lowers the burden of proof,” App. at 150.2. Rather than identify specific language (such as the “more appealing” language) as erroneous, defense counsel argued that “this charge, here, covers a wide variety of noncriminal conduct.” App. at 150.3 (emphasis added).

During phase II, defense counsel, the government, and the district court focused their discussion on objection B. Specifically, the defense objected that “nowhere else in the charge does it say[ ] that [the defendant] needs to be using [the Internet] to persuade or induce a minor to engage in a sexual act with him.” Id. at 150.3-.4 (emphasis added). The government countered that “everybody understands that what we’re charging him with is making the act of sexual contact more appealing with him, not with somebody else.” Id. at 150.5. And the district court agreed that “[t]here is no question ... here what we’re talking about.” Id. at 150.7. Objection A was at no point a subject of discussion in phase II.

During phase III, defense counsel affirmatively requested that the charge include the “more appealing” language, so that the phrase would read, “[s]exual activity ‘with him’ more appealing.” Id. The government agreed to the insertion of “with him” into the “more appealing” clause, and the district court accepted the change. See id. at 150.8. During this phase, defense counsel also raised objection C when he asked the district court to charge the plain meaning of “entice” or “persuade” without added embellishment. Id.

Noticeably absent from the charge conference transcript is any explicit discussion during any phase between defense counsel, the government, and the district court of objection A. Had there been such a discussion, I have little doubt that the conscientious district judge, who labored mightily over the charge, would have addressed the problem.

II. Unpreserved Error

Applying well-established policy considerations and Second Circuit case law, it is evident that objection A was not preserved for two reasons. First, even if some of defense counsel’s statements could, when viewed in isolation and taken outside of their context, be construed as objecting to the “more appealing” language itself,¹ any such objection was stated in terms too general and indistinct to apprise the district court (and the government) of the position that Joseph now asserts on appeal. Second, any such objection was plainly abandoned during phase III when defense counsel personally requested and affirmatively accepted the language, “made the possibility of sexual activity with him more appealing.”

A. Insufficient Clarity

Under Federal Rule of Criminal Procedure 30(d), “[a] party who objects to any portion of the instructions ... must inform the court of the specific objection and the grounds for the objection before the jury retires to deliberate.” Fed.R.Crim.P. 30(d) (emphasis added). As this court has recognized, the specificity requirement is not to be taken lightly, because it helps to ensure that the objection is squarely and clearly presented to the district court, which guarantees that the court of first instance has a meaningful opportunity to consider and correct any error prior to review by a court of appeals. See United States v. Weintraub, 273 F.3d 139, 145-46 (2d Cir.2001) (applying plain error review to defendant’s jury charge objection because “it was insufficiently particular to raise the question now presented and thus preserve it for appeal. By failing to draw the district court’s attention to the problem that Weintraub now complains of, the defendants deprived the district court of the opportunity to correct its putative error.”); see also Skelly, 442 F.3d at 99 (conducting plain error review because “[t]he defendants ... failed to raise a specific objection to the omission of [certain] language from the charge”).

The importance of preservation for purposes of appellate review cannot be understated:

Rule 30 provides that no party may assign as error any portion of the charge unless that party objects to it before the jury retires to consider its verdict. The purpose of this provision is to give the trial court an opportunity to correct any error or omission in the charge before the jury begins its deliberations. If prompt objection is made as the rule requires, the error can then be corrected. As the Supreme Court has said:

Orderly procedure requires that the respective adversaries’ views as to how the jury should be instructed be presented to the trial judge in time to enable him to deliver an accurate charge and to minimize the risk of committing reversible error.

The objecting party must state distinctly the matter to which it objects and the ground of its objections. The objection must be specific enough so that the trial court can perceive the basis on which it is claimed that the instruction was erroneous .... Accordingly, where the court and opposing counsel understand the defendant’s position, even a vague objection should be held sufficient.

2A Charles Alan Wright, Fed. Prac. & Proc. § 484 (3d ed.2000) (emphasis added) (footnotes omitted) (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977)). Conversely, where the trial court and opposing counsel do not understand the defendant’s objection because it was not “state[d] distinctly,” the requirements of Rule 30 have not been met.

A defendant’s failure to state his objection with sufficient clarity to apprise the district court of his position results in plain error review. Cf. United States v. Lemire, 720 F.2d 1327, 1343 n. 25 (D.C.Cir.1983) (“Where, as here, the defense fails to specify sufficiently the portion of the charge to which it objects, and therefore fails to comport with Rule 30, we will reverse only if the instruction is ‘plain error’ — if the error causes a substantial miscarriage of justice.... Of course, for those objections that the defendants raised with sufficient particularity to apprise the trial judge of their dissatisfaction, we do not demand ‘plain error’ in order to reverse.”). When, as here, an objection is made at trial but is at best ambiguous, or when the appellant’s objection focuses on a different problem than that targeted on appeal, it is unpre-served. See United States v. Vasquez, 267 F.3d 79, 87 (2d Cir.2001) (“During the charge conference, Vasquez did object to the aspect of the charge involving heroin and cocaine trafficking, but the basis for his objection is ambiguous.... Where an appellant states distinctly, under Rule 30, the grounds for objecting the charge below, but urges a different ground on appeal, the objection is not properly preserved on appeal and we therefore review for plain error. Vasquez’s situation falls squarely within this rule_”).

In this case, if defense counsel meant to object to the inclusion of the “more appealing” language itself (objection A), he never made this clear at trial. His objection was too general and imprecise to apprise the district court that the defense was seeking the deletion of the “more appealing” clause,² and it therefore failed to provide the district court an opportunity to correct the error. Nor did defense counsel’s statements at trial adequately inform opposing counsel of the position that Joseph now asserts on appeal. The record shows that both the district court’s and the government’s responses throughout the charge conference addressed and focused solely on the omission of “with him,” demonstrating that it was this objection — and not any broader challenge to the “more appealing” language — that was in fact conveyed to and perceived by the district court and the government.³

Furthermore, during the charge conference, defense counsel had several opportunities to voice an objection to the “more appealing” language itself and make clear to the district court and to the government that he was objecting to more than just the omission of “with him.” Defense counsel, however, remained silent.⁴ Thus, any broader objection that defense counsel may have raised (or intended to raise) was not made clear to the district court, which cannot fairly be said to have been apprised of the argument. Cf. Freytag v. Comm’r, 501 U.S. 868, 895, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (Scalia, J., concurring in part, joined by O’Connor, Kennedy & Souter, J.J.) (“The very word ‘review’ presupposes that a litigant’s arguments have been raised and considered in the tribunal of first instance.”).

B. Forfeiture Through Express Acceptance

In this case, not only did the defendant fad to make a clear objection to the “more appealing” language itself, but any such argument that could be gleaned from the record was plainly abandoned during phase III of the charge conference, when defense counsel expressly accepted the “more appealing” language by requesting that the charge read, “[sjexual activity ‘with him’ more appealing,”⁵ and then turned the discussion to objection C. App. at 150.7. This court has held that such behavior constitutes forfeiture of the objection and will result in plain error review. See United States v. Giovanelli, 464 F.3d 346, 351 (2d Cir.2006) (per curiam) (“[I]f a party invited the charge or affirmatively waived his position,” [ ]he has waived any right to appellate review of the charge. Giovanelli has waived his challenge to Judge RakofPs jury charge.... “[Wjhen Judge Rakoff, responding to Giovanelli’s objection, presented the parties with a revised draft jury charge that no longer included the ‘natural and probable effect’ language, Giovanelli’s counsel acknowledged that she was happy about that particular omission. Thus, there was ‘approval or invitation’ of the omission (indeed, both).” (alteration, internal quotation marks, and citations omitted)); Weintraub, 273 F.3d at 146 (“Weintraub also argues that counsel properly objected during the charge conference. To the contrary, defense counsel not only did not seek the instruction that Weintraub now argues for, they affirmatively accepted the government’s formulation.... We consequently review for plain error.”).

Joseph also forfeited objection A when he failed to correct the government’s and the district court’s apparent understanding that he was only raising objection B. After the defense expressly requested the insertion of “with him,” the government replied, “if all defense attorney is asking is that we put in ‘with him’ ... and made the possibility of sexual activity ‘with him’ more appealing ... into the charge, we don’t have an objection.” App. at 150.8. The government thereby gave defense counsel an opportunity to correct any misunderstanding and .point out other objections. Rather than raise objection A and argue that the “more appealing” language should be struck in its entirety, defense counsel reiterated objection C, that the original charge erroneously included explicit definitions for “persuade” and “entice” rather than a simple reference to their plain meaning. He stated, “And just the other issue concerning the plain meaning.”⁶ Id. Joseph therefore forfeited any previous objection that he might have made to the “more appealing” clause itself, and, under Second Circuit case law, we should review such a challenge for plain error.

III. Applying Plain Error Review

Although Weintraub states, “[i]n general, it is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court,” 273 F.3d at 145 (alteration omitted) (quoting Henderson, 431 U.S. at 154, 97 S.Ct. 1730), the same is true when, as here, the objection that was made was insufficient to preserve the error. Under plain error review, we “revers[e] only if the error is clear or obvious and affects substantial rights. To affect substantial rights, an error must have been prejudicial: It must have affected the outcome of the district court proceedings.” United States v. Ganim, 510 F.3d 134, 151 (2d Cir.2007) (internal quotation marks and citations omitted). “[T]he defendant bears the burden of establishing prejudice.” Logan, 419 F.3d at 179; see also United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (noting that when an error has been preserved, “a court of appeals normally engages in a specific analysis of the district court record — a so-called ‘harmless error’ inquiry — to determine whether the error was prejudicial. [Plain error review] normally requires the same kind of inquiry, with one important difference: It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.”)

Joseph cannot meet his burden because there was conclusive evidence to support the properly charged theory that, using the Internet, he “attempted to convince or influence the person he believed was a 13 year old girl to engage in a sexual act with him.” A. 158.1; see Skelly, 442 F.3d at 99 (finding no prejudice on plain error review because the government’s “primary theory [of liability] was supported by overwhelming proof’). The evidence belies any suggestion, argued by the defendant, that he was just role-playing.

In his online conversations with “Julie,” the FBI agent, Joseph made numerous comments demonstrating his intent to entice her into engaging in sexual acts with him. Furthermore, on multiple occasions, Joseph made statements indicating a genuine belief (prior to the day he arranged to meet Julie) that Julie was a minor. For example, on August 22, 2005, the following online exchange took place:

Joseph: everyone has different things that really turn them on ... for instance ... i love touching and kissing ... i could caress a girl’s body for hours, touching, kissing, slowly all over ... every inch is like a delicious meal to be savored slowly

Julie: is that what you wanna do with us?

Joseph: yes, i want to touch you, caress you, kiss you ... and show and te[]ach you things that feel good to you and me ... but only if you want to

Julie: u really do?

Joseph: yes, but no one can know, because i would go straight to jail

Julie: what do u mean?

Joseph: you are too young for me ... it is illegal .... i want to show you both how touching and kissing can be so, so hot

Supplemental App. at 86-87.

The next day, Joseph again chatted with Julie and described in explicit detail the sexual acts that he wanted to perform with her. He stated, “i kept thinki[n]g about having sex with you like that until we both came.” When Julie asked, “do u really wanna do this in person ... or just pretend,” Joseph replied, “really want to ... I’m just afraid someone will find out.” App. at 95 (emphasis added).

Trying to arrange a meeting with Julie, Joseph said, “i just told lorie i have some fr[ee] time next wed in the late morning.” Julie asked, “really? ... what do u wanna do?” and Joseph replied, “i want to see you both ... i have to ad[ ]mit, I’m very nervous about it all, knowing how young you both are ... but i am also very excited and want to see if we have chemistry ... i know i’m going to want to have my hands all over you when i see you.” Supplemental App. at 99 (emphasis added). This conversation followed:

Joseph: we need to find a private place where no one will watch us or accidentally find us

Julie: like the park?

Joseph: if there[ ]is good privacy there, sure.

Julie: w[o]uldnt it be w[ei]rd to do that out in the open?

Joseph: yes, definitely ... not a good place for sex, but maybe some kissing and touching

Julie: ok ... so u don’t want to do sex?

Joseph: i wish we could find a private indoor place ... not outside[ ]in the park (until you are 18:-))

Id. at 100-01; see also id. at 106 (“[I] just may have a problem because i am so much older than you[.]”); id. at 107 (“[P]romise me you won’t get me in trouble? ... and have me arrested[.]”). These conversations, among others, starkly refute Joseph’s claims that when he chatted with Julie, he was simply role-playing and believed that Julie was a sexually experienced adult posing as a minor.

Because there was abundant evidence supporting Joseph’s conviction, there was no prejudice and therefore no plain error requiring vacatur and remand. See Skelly, 442 F.3d at 99 (“This is not a ease, then, where it is impossible to determine which of two competing theories formed the basis for conviction, for it is overwhelmingly likely that any reasonable juror would have convicted on the basis of the Government’s primary theory. Accordingly, we conclude that the otherwise forfeited error in the district court’s instruction does not constitute plain error that we may notice.”).

Moreover, assuming arguendo that the error did affect Joseph’s substantial rights by affecting the outcome of his district court proceedings, “the court of appeals has authority to order correction, but is not required to do so.” Olano, 507 U.S. at 735, 113 S.Ct. 1770. The Supreme Court has stated that a reviewing court’s remedial discretion “should be employed in those circumstances in which a miscarriage of justice would otherwise result” — that is, if the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (alteration, internal quotation marks, and citations omitted); see also United States v. Crowley, 318 F.3d 401, 415 (2d Cir.2003). No error in the case before us calls into question the fairness, integrity, or public reputation of judicial proceedings.

IV. The District Court’s Evidentiary Rulings

The majority, anticipating a retrial, “urge[s] the District Court to give a more thorough consideration to the Defendant’s claim to present Dr. Herriot’s testimony [on Internet role-playing], in the event it is offered at retrial.” Maj. Op. at 21. The majority believes that Dr. Herriot’s testimony would be probative and “highly likely to assist the jury to understand the evidence.” Id. at 22 (internal quotation marks and citation omitted). Nevertheless, the majority acknowledges that “the admission or exclusion of expert testimony is committed to the discretion of the court.” Id. at 21.

I agree that the exclusion of Dr. Herri-ot’s testimony was within the sound discretion of the trial judge, but I would refrain from suggesting that the district court admit that evidence if it is presented at retrial. Even if Dr. Herriot was a qualified expert, as the majority seems to believe, see id. at 21-22, I believe the evidence was properly excludable under Federal Rule of Evidence 403. While testimony about a culture of role-playing on the Internet may have been “relevant” under the low threshold set by Rule 401, it was within the district court’s discretion to find that the testimony lacked sufficient probative value. Evidence that some people engage in role-playing on the Internet sheds little light on whether Joseph did so in this particular case, when he was having sexually explicit conversations with “Julie.”

Weighing against this low probative value were “considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed.R.Evid. 403. Even without Dr. Herriot’s expert testimony, there was ample opportunity to present the defense’s role-playing theory from Joseph’s own testimony that he was only engaging in sexual fantasy role-play. See Maj. Op. at 15-16, 18. For example, Joseph testified that his Internet screen name “is kind of ... an idealized version of what ... Dennis Joseph can’t do but can do on the [I]nternet.” App. at 114. He further testified to his general practice of “playing pretend” on the Internet: “And going back maybe seven or eight years ago, I would pretend to be things that I’m actually not. I would pretend to be bodybuilders. I would pretend to be very wealthy.... Sometimes I would pretend to be homosexual.” Id. It was the province of the jury to decide whether to credit Joseph’s testimony that he was simply role-playing.

Because I believe the district court acted within its discretion in excluding Dr. Herriot’s testimony, I would not suggest that it reconsider that decision upon retrial.

Y. Conclusion

For the foregoing reasons, I respectfully dissent.

1 . For example, the majority notes defense counsel's statement that “the jurors are thinking, if he just makes the idea of sex more appealing, he could be convicted of a crime which could be just pure cybersex without any intent to induce or persuade. And that is not covered by the statute.” App. at 150.4; see also Maj. Op. at 17 n. 3 (quoting this language). As I illustrate below, when this statement is viewed in its context, it is clear that the government and the district court only perceived the defense as raising objection B.

2 . At no point did defense counsel make explicit that he was advocating the omission of the "more appealing” language altogether. Although he specifically requested the insertion of "with him,” he never requested the removal of "more appealing.” Furthermore, his objections about "covering] noncriminal conduct” were more general objections to "the charge,” not specific objections to the “more appealing” language. See App. at 150.6 ("That is their enticement charge, which, to me, [Y]our Honor, covers noncriminal conduct and lowers the burden of proof (emphasis added)); id. at 150.3 ("And this charge, here, covers a wide variety of noncriminal conduct.” (emphasis added)); see also id. at 150.7 ("[T]he charge, as given, lowers the burden of proof...."). A general objection to "the charge” does not indicate what particular aspect of the proposed enticement charge defense counsel found problematic.

3 . The majority construes defense counsel’s statement, "if he just makes the idea of sex more appealing, he could be convicted of a crime which could be just pure cybersex without any intent to induce or persuade,” App. at 150.4, as raising objection A. However, the responses from the government and district court — and indeed defense counsel himself— centered on the insertion of "with him,” indicating that their understanding was that defense counsel was actually raising objection B:

The Defense: But it needs to be, he needs to be attempting to induce or persuading someone he believes to be a minor to engage.

The Court: Yeah.

The Defense: The statute is intended that he engage in a sexual act with him, and—

The Government: No, to make it more appealing to someone.

The Defense: With him, but the way that charge—

The Government: That's not necessarily true. It could be that he makes it more sexually appealing to a friend of his, too, but in this particular case, yes, everybody understands that what we’re charging him with is making the act of sexual contact more appealing with him, not with somebody else.

The Defense: You have no problem to amending the charge to a word like that?

The Government: To with him?

The Court: No—

The Defense: You need to prove that he was intended to induced or persuaded [sic], whichever, induce or entice ... or persuade in equal contact with him. That would be illegal.

The Government: It is in the charge. It is under the government's theory of the case.

The Defense: I remember that it wasn’t in there last time ....

Id. at 150.4-.5 (emphasis added).

In this exchange, defense counsel never argued for the complete omission of the "more appealing” language from the charge. Instead, he asked the government to agree to amend the charge to add "with him” to that clause. Indeed, the suggestion to expand upon or clarify the “more appealing” clause is incompatible with the suggestion to strike it in its entirety because the former presumes retention of the "more appealing” language. See also id. at 150.7 (The Defense: "It does no one any harm to clarify it by adding it [i.e., 'with him’] to that section of the charge....”).

4 .For example, during phase II of the charge conference, defense counsel said nothing during the following colloquy:

The Court: Okay. I’m looking at the paragraph at the bottom. I instruct you.... The government only needs show, beyond a reasonable doubt, the defendant attempted to convince or influence the victim to engage in a sexual act or made the possibility of the sexual activity more appealing.

Now, I gather that stays in, right?

The Government: Right.

The Court: Now, where does — where does the — the enticement charge go, and what does it knock out, or — or does it not knock anything out.

Id. 150.5- 6 (emphasis added). Such passive behavior by defense counsel, wholly at odds with the defendant’s argument on appeal that the specific objection to that language was raised below, is telling.

5 . That portion of the charge conference proceeded as follows:

The Government: Basically, you just want it to say ... The government only need show beyond a reasonable doubt that the defendant attempted to convince or influence the victim to engage in sexual activity. You want to add the words "with him,’’ or made the possibility of the sexual activity more appealing. And that covers your objection?

The Defense: Sexual activity "with him” more appealing.

The Government: Two words “with him” or made the possibility of the sexual activity "with him” more appealing?

The Defense: And that covers that one piece of it. The other piece is that I think the charge, as given, lowers the burden of proof and basically says that you don't have to persuade or entice. [Objection C] And we're asking for the plain meaning and I don’t really understand why we wouldn’t just take the plain meaning of entice or persuade as Sand recommends.

App. at 150.7-.8 (emphasis added).

6 . Earlier during phase III, defense counsel had stated:

And that covers that one piece of it. The other piece is that I think the charge, as given, lowers the burden of proof and basically says that you don't have to persuade or entice. And were asking for the plain meaning and I don’t really understand why we wouldn’t just take the plain meaning of entice or persuade as Sand recommends.

App. at 150.7-.8 (emphasis added). The majority interprets "[t]he other piece” of defense counsel’s objection as an objection that even with the addition of "with him,” the "more appealing” language was erroneous because it permitted the jury to convict without finding that the defendant persuaded or enticed. See Maj. Op. at 17 n. 3. In other words, the majority asserts that defense counsel continued to raise objection A, even after objection B had been resolved to his satisfaction.

As an initial matter, this reading ignores the fact that defense counsel stated that "the charge, as given, lowers the burden of proof and basically says that you don't have to persuade or entice.” App. at 150.7-.8 (emphasis added). At that point in the charge conference, the district court had not yet accepted the addition of "with him.” Defense counsel’s statement thus referred back to the original proposed charge, and not to the charge as amended to include “with him.” I therefore disagree with the majority that defense counsel was arguing that the “more appealing” language was erroneous even with the addition of “with him,” and that "the other piece” of his objection was to the "more appealing” language itself.

Plainly, "the other piece” of the objection was to the expansion of the meanings of "persuade” and "entice” in the original charge— objection C. The original charge stated: "Persuade means to move by argument or entreaty or expostulation to a belief, position, or course of action.... The term ‘entice’ means to wrongfully solicit, persuade, procure, allure, attract, coax, or seduce, or to lure, induce, attempt, incite, or persuade a person to do a thing.”

Here, defense counsel was arguing that the inclusion of explicit definitions or synonyms for "persuade” and "entice” lowered the burden of proof and would, in effect, allow the jury to convict without finding that Joseph persuaded or enticed. For example, under the charge, as given, the jury could convict upon finding that Joseph "wrongfully solicit[ed]” a minor. For that reason, defense counsel "ask[ed] for the plain meaning” of those terms, without any embellishment. This was the subject of his second objection (objection C), not the "more appealing” language.