“On August 25, 2005, Joseph initiated contact and told ‘Julie’ that he wanted to see her and ‘Lorie.’ On August 30, he again contacted her and described the sexual activity the two might enjoy. The federal agents arrested Joseph as he looked into the café window.That same day he mailed ‘Julie,’ indicating that he planned to be at Franklin Street in Manhattan the following day and asked ‘Julie’ to let him know if that date worked for her. After being advised of his rights, Joseph told Berglas that he had come downtown to meet a girl he had met while chatting on the Internet.“What am I gonna do if [she] actually is a minor,” he told the jury he asked himself.He decided that if she was in fact a minor, he would take her into the café for lunch and explain to her that he had been pretending because he actually believed she was an adult role-playing as a teenager. The Government, on cross-examination, zeroed in on Joseph’s participation in the “Muscleteens” group.He also stated that the few times he looked at the site, the pictures had changed, and that each time they were ‘predominantly 19, 20, 21 and maybe 18-year-old bodybuilders.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.
On August 31, Joseph sent his final message to ‘Julie,’ and they agreed if he was ‘really gonna be there’ because she did not ‘wanna be standing there waiting,’ and Joseph replied, ‘I can’t promise anything cause I’m still nervous and I don’t know how I will actually feel when I see you. ’ The remainder of the conversation, as reported by Berglas during his testimony, was as follows: “[‘Julie’]: No. He said he wanted to warn her against talking to older men on the Internet about having sex. At the retrial, attorneys for Joseph sought to portray him as a man with a proclivity for muscular women who used the Internet for role-playing, who never knowingly communicated with a minor.
“Role Playing” in Cybersex Conversations Could be a Legitimate Defense in § 2422(b) Internet Solicitation Cases By: Houston Criminal Defense Lawyer John Floyd and Mr. On September 9, 2008 the United States Court of Appeals, Second Circuit, reversed the conviction based on an erroneous instruction the trial judge gave to the jury. After a seven-day trial in April 2006, a mistrial was declared when the jury was unable to reach a verdict.
On December 21, 2006 Dennis Joseph was convicted of violating § 2422(b) in the United States District Court for the Southern District of New York and sentenced to a term of 97 months in a federal prison. In August 2005, he was arrested for using the Internet to solicit a person he believed to be a minor to engage in sexual activity …
The court explained: “Joseph sought to defend the charge against him by claiming that he was only engaging in cybersex conversation (simulating sex via sexual communications over the Internet), without any intent to entice ‘Julie’ to engage in sexual conduct with him.
He claimed that he agreed to meet her only to see if she was an adult role-player or really a child, and that, if she turned out to be a child, he would do nothing further.