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If jurors thought that Joseph only wanted to make ‘Julie’ think that sexual conduct with him would be appealing, but did not intend to entice her to engage in such conduct with him, they would have convicted him for having a cybersex conversation, which is not a crime, but not for violating section 2242(b).

“The risk of an improper conviction based only on the ‘more appealing formulation was heightened by the Government’s summation.

§ 2422(b) prohibits the use of a computer by an adult to send messages on the Internet to “persuade and entice” a person under 18 years of age to engage in sexual activity that constitutes a criminal offense. The Second Circuit outlined the facts of the case as follows: “Joseph is 40 years old, married, and has a six-year-old child.

“The evidence at the retrial included the following.

Joseph claimed that he stopped visiting the site when ‘it started to change.’ “On rebuttal, the Government called Special Agent Sean Watson of the FBI who testified that in June, 2006, shortly before Joseph’s trial, Watson had joined the Muscleteens group in an undercover capacity and had viewed all of the pictures posted in that group before August 31, 2005, the date of Joseph’s arrest.

“Then the prosecutor went further and invited the jury to rely on the ‘more appealing’ alternative in the charge.

She told the jury: ‘The crime that he’s been charged with is enticement, that he was attempting to persuade or entice a minor into sexual activity.

He said she was too familiar with sexual terminology to be a real teenager so he surmised that she was part of a “make-believe, pretend world.” He told the jury that he also believed “Julie” was an adult engaged in the same kind of role-playing.

He said he became more convinced after “Julie” (who had passed herself off as a young gymnast) sent him a picture of herself with long nails because it would be difficult for a gymnast to have long nails. At this point Joseph told the jury he started having second-thoughts about the “Lorie” and “Julie” being adults role-playing after he arranged the meeting with “Julie.” He said that Julie’s angry tone after he told her that he could not “promise” a meeting made him think she might actually be a teenager.