United States v. Valle

UNITED STATES OF AMERICA, v. GILBERTO VALLE, Defendant.

12 Cr. 847 (PGG)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Dated: June 30, 2014

MEMORANDUMOPINION & ORDER

PAUL G. GARDEPHE, U.S.D.J.:

On March 12, 2013, a jury convicted Defendant Gilberto Valle of conspiracy to commit kidnapping (Count One), in violation of 18 U.S.C. § 1201(c), and of conducting a computer search of a federal database that exceeded his authorized access (Count Two), in violation of 18 U.S.C. § 1030(a)(2)(B). (Verdict Form (Dkt. No. 126)) Valle has moved for a judgment of acquittal pursuant to Fed. R. Crim. P. 29 or, in the alternative, for a new trial under Fed. R. Crim. P. 33. (Def. Count One R. 29 Mot. (Dkt. No. 176); Def. Count Two R. 29 Mot. (Dkt. No. 178); Def. R. 33 Mot. (Dkt. No. 180)) For the reasons set forth below, Valle's motion for a judgment of acquittal will be granted as to Count One but denied as to Count Two. Valle's motion for a new trial as to Count One will be conditionally granted pursuant to Fed. R. Crim. P. 29(d)(1). To the extent that Valle seeks a new trial on Count Two, that motion will be denied.

The highly unusual facts of this case reflect the Internet age in which we live. To prove the kidnapping conspiracy alleged in Count One, the Government relied on numerous Internet "chats" in which Valle and three alleged co-conspirators discuss in graphic detail kidnapping, torturing, raping, murdering, and cannibalizing women. Valle and his three alleged co-conspirators "met" on Dark Fetish Network or darkfetishnet.com ("DFN"), which bills itselfas a fantasy sexual fetish website. Valle's DFN profile page stated: "I like to press the envelope but no matter what I say, it is all fantasy." Many of Valle's Internet communications involved him transmitting Facebook photographs of women he knew - whether his wife, her colleagues from work, or his college friends - and then "chatting" with other DFN users about committing acts of sexual violence against these women.

With respect to the kidnapping conspiracy charge, the primary issue raised in Valle's motion for a judgment of acquittal is whether the evidence and the reasonable inferences that may be drawn from that evidence are such that a rational jury could find that "criminal intent ha[d] crystallized," United States v. Feola, 420 U.S. 671, 694 (1975) - that is, that Valle and his alleged co-conspirators entered into a genuine agreement to kidnap certain women and had the specific intent to actually kidnap these woman.

Valle contends that his Internet chats are fantasy role-play, and that the Government did not prove beyond a reasonable doubt that he and his alleged co-conspirators entered into a "real" agreement to kidnap one or more women. The Government argues that the evidence shows that Valle entered into an illegal agreement to kidnap women with (1) a New Jersey man named Michael Van Hise; (2) an individual located in India or Pakistan who uses the screen name "Aly Khan"; and (3) a man using the screen name "Moody Blues," who lives in England. The alleged kidnapping conspiracy thus spanned three continents.

Although the alleged conspiracy lasted nearly a year, all communications between Valle and his alleged co-conspirators in New Jersey, India or Pakistan, and England took place over the Internet. None of the conspirators ever met or took steps to meet, nor did they ever speak by telephone. This is a conspiracy that existed solely in cyberspace. There is no evidence that the alleged conspirators ever exchanged telephone contact information or accurateinformation about the area in which they lived, or that they ever knew or sought to learn each other's true identities. Communication between the alleged conspirators was episodic and generally infrequent; months often passed between chats, with the alleged conspirators forgetting what had previously been discussed.

After reviewing thousands of Valle's Internet communications, the Government determined that Valle had discussed kidnapping, torturing, raping, murdering, and/or cannibalizing women with twenty-four individuals. At trial, the Government conceded that - as to twenty-one of these individuals - Valle's communications about kidnapping, torturing, raping, murdering, and cannibalizing women are nothing more than fantasy role-play. The Government nonetheless contends that Valle's communications with the remaining three - Van Hise, Aly Khan, and Moody Blues - reflect a "real" kidnapping conspiracy.

As is discussed in detail below, however, Valle's "chats" with a number of the individuals who the Government concedes are fantasy role-play correspondents are substantively indistinguishable from his chats with Van Hise, Aly Khan, and Moody Blues. Both sets of chats involve discussions about Facebook photographs of women Valle knows; dates for planned kidnappings; prices Valle will charge for kidnapping these women; surveillance Valle has allegedly conducted of these women; the use of chloroform to incapacitate victims; acts of sexual violence that will be perpetrated on these women; and fantastical elements such as human-size ovens and rotisseries, and the construction of soundproofed basements and pulley apparatuses that will be used for purposes of torture.

Moreover, the nearly year-long kidnapping conspiracy alleged by the Government is one in which no one was ever kidnapped, no attempted kidnapping ever took place, and no real-world, non-Internet-based steps were ever taken to kidnap anyone. While the allegedconspirators discussed dates for kidnappings, no reasonable juror could have found that Valle actually intended to kidnap a woman on those dates. For example, under the Government's theory, Valle separately "agreed" with two co-conspirators to kidnap three different women on or about the same day, February 20, 2012. Valle was to kidnap one woman in Manhattan (Government Exhibit ("GX") 430; Trial Transcript ("Tr.") 185-86); lure another to India or Pakistan (GX 417); and kidnap a third in Columbus, Ohio (GX 424; Tr. 239).

No one was kidnapped on February 20, 2012, however, and no one was kidnapped on any other date "agreed to" or discussed by Valle and his alleged co-conspirators. Moreover, neither Valle nor any of his alleged co-conspirators ever even raised the issue of whether a "planned" kidnapping had taken place, and if not, why not. Dates for "planned" kidnappings pass without comment, without discussion, without explanation, and with no follow-up. The only plausible explanation for the lack of comment or inquiry about allegedly agreed-upon and scheduled kidnappings is that Valle and the others engaged in these chats understood that no kidnapping would actually take place. No other reasonable inference is possible. Because the point of the chats was mutual fantasizing about committing acts of sexual violence on certain women, there was no reason for discussion, inquiry, or explanation when the agreed-upon date for kidnapping a woman came and went.

The kidnapping conspiracy alleged by the Government also featured a steady stream of lies from Valle to his alleged co-conspirators about himself and numerous critical aspects of the alleged conspiracy. Valle lied about his age; about his marital status; about the city and area in which he lived; about whom he lived with; and about his job and the hours he worked. He also lied about whether he owned a house "in the middle of nowhere . . . in Pennsylvania"; about whether he owned a van that could be used to transport victims; aboutwhether he had a "pulley-apparatus" in his basement; about whether he was soundproofing his basement; about whether he had a human-size oven and rotisserie; about whether he possessed address and contact information for the purported targets of the kidnapping conspiracy; about whether he was conducting surveillance of targeted women; about how often he was in contact with these women; and about whether he had obtained, or would obtain, rope, duct tape, and a stun gun for purposes of committing a kidnapping.

Similarly, the details Valle provided to his alleged co-conspirators concerning the targets of the kidnapping conspiracy were - as to identification information - all false. Valle lied about where the purported kidnapping targets lived, their last names, their occupations, their dates and places of birth, where they had attended or were attending college, and the degrees they had obtained. Despite repeated requests, Valle never provided his alleged co-conspirators with the last names and addresses that would have permitted them to locate and identify these women.

The Government, of course, is not required to prove that conspirators planning a kidnapping met in person, spoke over the telephone, or shared accurate information about their names and where they live, the names and addresses of kidnapping targets, or the resources each conspirator will contribute to the enterprise. Those engaged in criminal activity frequently lie to each other about all manner of things, including, for example, the amount and purity of drugs they possess, the value of items to be stolen, and the likelihood of getting caught. There is likewise no legal requirement that a kidnapping actually take place in order for a kidnapping conspiracy conviction to be sustained. Moreover, the fact that Valle had fantasy chats with twenty-one individuals about kidnapping, raping, and murdering women does not establish that his conversations with Van Hise, Aly Khan, and Moody Blues are likewise fantasy.

But the kidnapping conspiracy here was formed and is alleged to have taken place almost exclusively in cyberspace, and in a context in which - according to the Government - the Defendant engaged in countless fantasy role-play conversations with at least twenty-one other individuals about the same topics: kidnapping, torturing, raping, murdering, and cannibalizing women. Under these unique circumstances, in determining whether the Government proved...