United States v. D'Amelio

13-588
United States v. D’Amelio
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
12th day of May, two thousand fourteen.
PRESENT:
ROSEMARY S. POOLER,
REENA RAGGI,
DENNY CHIN,
Circuit Judges.
_____________________________________
United States of America,
Appellee,
v. 13-588
Daniel D’Amelio, AKA Wamarchand@aol.com,
Defendant-Appellant.*
_____________________________________
FOR DEFENDANT-APPELLANT: Daniel D’Amelio, pro se, Fort Dix, NJ
FOR APPELLEE: Michael Alexander Levy, Randall Wade Jackson,
and Brent Scott Wible, Assistant United States
Attorneys, for Preet Bharara, United States
*
The Clerk of the Court is directed to amend the caption as above.
Attorney for the Southern District of New York,
New York, NY
Appeal from a judgment of the United States District Court for the Southern District of
New York (McMahon, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Daniel D’Amelio, proceeding pro se, appeals from the district court’s
judgment, following a jury verdict, finding him guilty of one count of attempted enticement of a
minor using a facility or means of interstate commerce, in violation of 18 U.S.C. § 2422(b). We
assume the parties’ familiarity with the underlying facts, the procedural history of the case, and
the issues on appeal.
In challenging the sufficiency of the evidence to support his conviction, a defendant
bears a heavy burden. United States v. Reifler, 446 F.3d 65, 94-95 (2d Cir. 2006). We “must
credit every inference that could have been drawn in the [G]overnment’s favor, and affirm the
conviction so long as, from the inferences reasonably drawn, the jury might fairly have
concluded guilt beyond a reasonable doubt.” Id. at 94 (internal citations omitted). “[T]he task
of choosing among competing, permissible inferences is for the [jury], not for the reviewing
court.” United States v. McDermott, 245 F.3d 133, 137 (2d Cir. 2001).
To establish a conviction under § 2422(b), the Government must prove that an
individual: (1) used a facility of interstate commerce; (2) to knowingly persuade, induce or
entice, or to attempt to persuade, induce or entice; (3) any individual who is younger than
eighteen-years old; (4) to engage in sexual activity of a criminal nature. 18 U.S.C. § 2422(b);
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see United States v. Brand, 467 F.3d 179, 201-02 (2d Cir. 2006). A conviction “requires a
finding only of an attempt to entice or an intent to entice, and not an intent to perform the sexual
act following the persuasion.” Brand, 467 F.3d at 202. To prove an attempt to commit the
crime, the Government must show that the defendant had the intent to commit the crime and
engaged in conduct amounting to a “substantial step” towards its commission, which must
involve more than “mere preparation.” Id.
The evidence was sufficient for the jury to find D’Amelio guilty of violating § 2422(b).
The Government’s evidence showed that he initiated contact with “Mary,” who told him that
she was a 12-year-old girl, in a chatroom entitled “I Love Much Older Men.” See Brand, 467
F.3d at 202 (evidence sufficient to sustain conviction under § 2422(b) when Government
showed that defendant initiated contact with a girl claiming to be 13 years old in a chatroom
entitled “I Love Older Men”). D’Amelio also frequently suggested that he “liked” her, and that
he performed sexual acts on women he “liked.” He also “continuously steered the conversation
in the direction of sexual contact,” which we have recognized can constitute “classic
‘grooming’ behavior in preparation for a future sexual encounter.” Id. at 203. Moreover, by
meeting with “Mary” at a designated location, D’Amelio took a “substantial step” toward the
completion of the crime. Id. at 204 (defendant took a “substantial step” toward violating §
2422(b) when he went to the meeting place that he had established with the underage
individual).
Although D’Amelio offered a different theory as to why he engaged in such interactions,
the jury was required to make a credibility determination, which we rarely disturb. See United
States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989). Moreover, it is the role of the jury to choose
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among competing, permissible inferences, which it did. McDermott, 245 F.3d at 137. Although
he argues that he was aware that “Mary” was an adult, the evidence viewed most favorably to
the prosecution, indicates otherwise. Sepcifically, D’Amelio showed his concern about getting
“into trouble” and about laws that prohibited sexual activity between adults and underage
individuals. When he met “Mary” in person, he suggested that she create an alternate
screenname indicating that she was 16 years old instead of 12 years old. The jury could have
drawn a reasonable inference from such behavior that he did in fact believe she was only 12
years old.
D’Amelio also challenges the Government’s use of internet communications and audio-
recordings as evidence instead of “physical, in-person” evidence. However, we have held that
“the [G]overnment has no duty to employ in the course of a single investigation all of the many
weapons at its disposal,” and that “failure to utilize some particular technique . . . does not tend
to show that a defendant is not guilty of the crime with which he has been charged.” United
States v. Saldarriaga, 204 F.3d 50, 53 (2d Cir. 2000).
D’Amelio also argues that, because § 2422(b) requires that his conduct be directed
toward an actual minor, the district court erred by instructing the jury that it could convict him
if it found that he subjectively believed that “Mary” was a minor. We have previously rejected
that argument, as the statute “explicitly proscribes attempts to entice a minor,” meaning that a
defendant may be found guilty even if the victim he believes to be underage is in fact an adult.
United States v. Gagliardi, 506 F.3d 140, 145-46 (2d Cir. 2007) (emphasis in original).
As for D’Amelio’s argument that his prosecution violated the First Amendment,
§ 2422(b) “punishes the act of enticing or attempting to entice a minor when it is knowingly
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done,” which “does not implicate speech.” Id. at 148 (emphasis in original). Moreover, speech
is not protected by the First Amendment “‘when it is the very vehicle of the crime itself.’” Id.
(quoting United States v. Rowlee, 899 F.2d 1275, 1278 (2d Cir. 1990)).
With respect to D’Amelio’s ineffective assistance claim, that claim must be made in the
first instance to the district court in order that there be a full factual record on review. United
States v. Matos, 905 F.2d 30, 32 (2d Cir. 1990). Although we may decide such a claim raised
for the first time on appeal when its resolution is “beyond any doubt” or in the interest of
justice, D’Amelio has not made such a showing. Id. Moreover, we prefer to hear claims of
ineffective assistance of counsel on collateral review. See United States v. Doe, 365 F.3d 150,
152 (2d Cir. 2004).
We have considered D’Amelio’s remaining arguments and find them to be without
merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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