I fancy myself a documentary-film aficionado. When the subject matter is criminal law, it’s a true win-win. Last week, I had occasion to see a newly-released HBO documentary titled, “Thought Crimes: The Case of the Cannibal Cop.” It was fascinating. For those of you who didn’t see it, I suggest you watch it.
It centered around the case of Gilberto Valle, the former NYPD Police Officer labeled the “Cannibal Cop.” The release of the documentary coincided with the actual case’s oral argument before the Second Circuit Court of Appeals (a federal appellate court sitting in New York) on May 12, 2015, which sparked an interest for me to further research the case.
This post is not an argumentative piece. I’m not taking sides and explaining why Valle or the Government should prevail or lose, respectively. It’s merely a supplement, if you will, to both HBO’s documentary and other media coverage in this case. As a lawyer, I’ve learned that it’s always best to familiarize yourself with the facts, and not rely on conjecture and speculation, before making a decision about something–especially in media cases. Hopefully, this will allow you to do the same. I read the actual court documents and researched some of the applicable law. Here is what I found:
The evidence adduced at trial showed that, between 2006 and 2012, Valle, a husband and father, worked as an officer with the New York City Police Department. But he also had another, much darker side to him. One that his wife discovered after looking at his internet history and installing some spyware. Before we explore the evidence, though, take a quick glance at the procedural history to gain context for this appeal.
Valle was indicted on two counts — Count 1 (conspiracy to commit kidnapping) and Count 2 (improperly accessing his police department’s computer database) — and set to be tried in federal court in the Southern District of New York. After a 13-day trial, a jury found Valle guilty on both counts. However, Valle’s conviction as to Count 1 (Conspiracy) was vacated when a successful post-trial motion for judgment of acquittal (“JOA”) was granted by the Hon. Paul Gardephe of the Southern District of New York. Valle is now appealing his conviction as to Count 2 (computer access) in Docket No. 14-4396; the USA, on the other hand, is appealing the order granting JOA as to Count 1 (conspiracy) in Docket No. 14-2710. The Second Circuit combined both appeals for purposes of oral argument.
During a ten-month period in 2012, Valle discussed kidnapping, raping, torturing, and cooking and eating women. The women were, as the Government states in its brief, “not strangers”– his wife, one of her colleagues, two of his friends from college, and a teenager studying at a nearby high school. Valle enlisted support from three like-minded men whom he met online “on a website that packaged brutality and torture as a source of pleasure,” the Dark Fetish Network. Initial Brief for USA, Docket 14-270, p. 4. They were Van Hise, a New Jersey resident; Khan, whose true identity remains unknown but appears to be a resident of India or Pakistan; and Bolinger, or “Mood Blues,” was a nurse who lived in the United Kingdom (sidenote: Bolinger was prosecuted in the U.K. and found guilty of various related offenses) .Id.
How serious was Valle, who went by the moniker “Girlmeat Hunter” online?
Well, for starters, the evidence showed that Valle confirmed where his targets lived and worked; contacted them by mail; physically surveilled them; arranged pretextual meetings; Googled things like “how to make chloroform,” “the best rope to tie someone up,” and “how to kidnap someone”; read news accounts describing the investigation of kidnappers; and used his NYPD computer access to research his targets (more on this in Count 2). He also compiled a document entitled “Abducting and Cooking Kimberly: A Blueprint,” which included a photograph and descriptions of age, ethnicity, height, marital status, the absence of tattoos, and consumption of alcohol and tobacco. Initial Brief of USA, Docket No. 14-2710, p. 35.
In conversations with Van Hise, Valle agreed to kidnap a woman and bring her to Van Hise for $5,000–“Cash only upon delivery.” Id. Email exchanges show Valle describing the height, weight, age, etc. of one particular woman.
With Khan, Valle encouraged him to travel to the United States to take part in the kidnapping of particular women. Khan hid behind travel restrictions but challenged Valle’s courage to act alone. “Why can’t you do them alone? Its damn easy,” said Khan.Id. at 13. “[M]aybe you can talk me into it,” Valle responded. Further discussions were had.
With Bolinger, Valle said that he was “working on grabbing one for Thanksgiving (sic)” and was looking for some help from someone with experience.Id. at 16. Bolinger said it would be easy for him to get from England to the Big Apple.”Id. Who was their target? Valle’s wife. Seeking to measure Valle’s commitment, Bolinger prodded, “you will go through with this? I’ve been let down before.” Valle responded, “Yes” and “she will never see it coming.”Id.
As all of these discussions progressed, Valle’s behavior at home grew increasingly abnormal, and he even missed a substantial period of work.Id. at 24.
So what was Valle’s theory of defense?
According to the Government, it was “asking the jury to believe all of this activity amounted to a sick fantasy that had no basis in reality.”Initial Brief for USA, Docket No. 14-270, p. 5. And that’s probably not too far off from the truth. They tried to do this (unsuccessfully, obviously) by presenting two employees from the Dark Fetish Network that testified that the purpose of their website was primarily for fantasy and contained numerous disclaimers to that effect and comparing his communications to others found on the Dark Fetish Network who were not named as co-conspirators. Valle did not testify in his own defense.
In what I view as largely improper arguments, the Government argued to the jury whether Valle’s horrific fantasies were “ok,” (Tr. 1581); whether his pornography was normal or “not normal,” (Tr. 1596); whether he was a bad husband and father, (Tr. 1608, 1612-13); and whether he should be walking the streets of New York as a “sick” police officer “with a loaded weapon.” (Tr. 1578, 1613). Inflaming the passions? I think so. Relevant and proper arguments? I think not.
After the jury came back guilty, Valle filed motions pursuant to Federal Rules of Criminal Procedure 29 (judgment of acquittal) and 33 (new trial).
Valle’s primary argument for JOA was that the Government failed to present sufficient evidence to establish guilt because it failed to demonstrate that his communications and actions were in furtherance of a bona fide kidnapping conspiracy. The Government opposed both motions, but ultimately, the Judge granted JOA as to Count 1. The documentary captures these moments while showing Valle, on house arrest pending appeal, at his mother’s house.
Explaining his decision, Judge Gardephe concluded that Valle’s communications with the co-conspirators were “most likely nothing more than fantasy.”United States v. Valle, 301 F.R.D. 53 (S.D.N.Y. 2014). The Government’s own evidence had shown a fantasy role-play of sorts with other members that were” substantively indistinguishable from his chats with Van Hise, Aly Khan, and Moody Blues.”Id. at 60. The Judge also pointed to an absence of “real-world, non-Internet-based steps” in furtherance of the kidnapping; the silence of co-conspirators when specific dates for kidnappings passed without one actually taking place; the plan to kidnap multiple victims on the same day; and the various lies that Valle told the co-conspirators (see below for examples).Id. at 60, 89-90.
Just in case you think the Judge acted irrationally and without careful consideration, note that he published a 118 opinion explaining his ruling. Nonetheless, the Government decided to appeal.
On appeal, the Government argues that, first, the jury’s verdict as to Count 1 was fully supported by the evidence; and second, “Judge Gardephe either overlooked evidence that was consistent with the jury’s verdict or drew inferences from the evidence that favored the defense.” Initial Brief for USA, Docket 14-2710, p. 27-28.
Valle, on the other hand, unsurprisingly applauds Judge Gardephe’s “meticulous analysis” and characterizes the Government’s decision to appeal as a “misleading attack” and a “very public rebuke” of the judge. Answer Brief for Valle, Docket 14-2710, p. 4. While acknowledges that Valle had “despicable fantasies,” Valle’s counsel argues that he never intended to carry any of them out; and that, “A jury in a free society cannot be allowed to convict someone for a ‘crime’ that existed only his overactive imagination.”Id. Valle’s counsel points to obviously fictitious aspects of his “real chats” (as opposed to “fantasy chats”) that support the Judge’s finding that he never intended to act. For example, Valle referred to a van he would use–but he never owned van; a house in the mountains he would take them to–but he never owned such a house; or some devices (like an over-sized oven) he stored in his soundproofed basement–he didn’t have a basement.
The Electronic Frontier Foundation, Center for Democracy & Technology, Marion B. Brechner First Amendment Project, National Coalition Against Censorship, Pennsylvania Center for the First Amendment, and Law Professors in Support of Defendant-Appellee Gilberto Valle filed an Amicus Brief in support of Valle. Together, they take the position that the Second Circuit must tread lightly to ensure that no First Amendment (freedom of speech) violations occur.
In Valle’s role as a police officer, he received an NYPD laptop and login credentials (i.e. username and password), which gave him access to, among other things, the National Crime Information Center (or “NCIC”). The NCIC is a compilation of data from across the country. A routine NCIC check could reveal confidential and restricted personal information about people of interest, including their dates of birth, social security numbers, driver’s license information, criminal records, and home addresses.
In the final ten months of his tenure, Valle discussed with three other men kidnapping, raping, torturing, and cooking and eating several women. These discussions took place entirely online in an internet forum hosted by the Dark Fetish Network website. Valle, the NYPD Police Officer, also used his NYPD credentials to access computer databases to review restricted data about at least one of his targets–an old friend from high school. It was beyond dispute at trial that Valle lacked any legitimate law enforcement purposes for these queries.
The jury was instructed, without objection by the defense, that Valle could be convicted on Count 2 only if the Government proved, not only that he had accessed a computer with authorization, but that he exceeded his authority in accessing the information in question. They found him guilty.
After the trial, Valle moved for a judgment of acquittal on Count 2, arguing that his ability to use the NYPD computer system as part of his duties immunized him from criminal liability–even if his query pertaining to his high school target went beyond the scope of his authorization. The Judge denied the motion, relying primarily on the language in the statute combined with the clear NYPD policy that searches were impermissible absent a “valid law enforcement purpose.”
Valle was sentenced to 20 months, which amounted to time served, followed by one year of supervised release.
On appeal, Valle is advancing the same argument that failed below. Namely, that he was given login credentials; those credentials gave him access to computer databases; therefore, he was authorized to access those databases and could not possibly trigger the language “exceed authorized access” as contemplated by 18 U.S.C. 1030(a)(2)(B).
In response, the Government argues that Valle’s position is untenable with the plain language of the statute. “The NYPD provided Valle with several law enforcement tools—credentials to access the NCIC database, handcuffs, a gun—but that does not mean Valle was authorized to use those tools however he saw fit, limited only by his abilities. To accept Valle’s construction of the statute is to conflate ability with authorization.”Answer Brief for USA, Docket No. 14-4396, at p. 7.
The law at issue is the Computer Fraud and Abuse Act, which prohibits “intentionally access[ing] a computer without authorization or exceed[ing] authorized access, and thereby obtain[ing] … information from any department or agency of the United States.”18 U.S.C. 1030(a)(2)(B). Subsection (e)(6) defines “exceed authorized access” as “access a computer with authorization and … use such access to obtain or alter information … that [one is] not entitled to so obtain or alter.” So the critical language is “to obtain” and “not entitled to obtain.”
In my view, the juicy issue, in this case, comes from Count 1 (conspiracy), which deals with the “fantasy v. reality” aspects to conspiracy. To understand this issue better, you need to have a working knowledge of the governing law in two respects: (1) how a JOA works and (2) the importance of the First Amendment.
Valle was convicted by a jury but then, upon motion, had the judge enter a judgment of acquittal, which vacated the jury’s verdict. (Yes, the law allows for that type of relief–but as a defense lawyer let me tell you, it’s few and far between when these motions actually get granted. Here, it did, which adds to the intrigue of this case.)
A jury verdict must be upheld if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). As expounded upon by the Second Circuit, JOA is appropriate only when the evidence against the defendant is either “nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt.”United States v. Espaillet, 380 F.3d 713, 718 (2d Cir. 2004). In viewing the evidence, all of it must be viewed in a light most favorable to the Government.
This case also touches upon the First Amendment (freedom of speech) considerably. Any speech that expresses an agreement to engage in criminal acts (including solicitation and conspiracy) is not protected speech under our federal constitution. See, e.g. United States v. Williams, 553 U.S. 285, 298 (2008). But one must look at the context in which the speech was made. The Amici provide a good example of this: “facially false speech about people is treated as libel only when it is likely to be taken seriously, and not when it is hyperbolic, fantastical, or satirical.”Amicus Brief, p. 8. They supply a litany of federal case law supporting this proposition. The First Amendment has long been raised in obscenity cases and child pornography cases, so it won’t be too surprising if it makes it to the Second Circuit’s opinion, although it certainly wasn’t a feature of the trial or appeal by either party.
I won’t opine as to how the Second Circuit will rule on both issues. Suffice to say that it will be an interesting read on many levels.
This article was authored by Jordan Redavid, Esq., a founding partner at Fischer Redavid PLLC. Jordan Redavid is a Hollywood Criminal Defense Lawyer who represents people from DUI and Drug Crimes to Fraud, and many other criminal charges in both State and Federal court. Jordan Redavid is both a Hollywood Trial Lawyer and a Hollywood Appeals Lawyer.
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