United States v. Valle

MEMORANDUM OPINION & ORDER

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(e), 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 itself as 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, 95 S.Ct. 1255, 43 L.Ed.2d 541 (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 eo-eonspirators 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 *60Jersey, 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 accurate information 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 Face-book 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 alleged conspirators 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; about whether he had a “pul*61ley-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 beyond a reasonable doubt Valle’s criminal intent — his specific intent to actually kidnap a woman— the fact that no kidnappings took place and that no real-world, concrete steps toward committing a kidnapping were ever undertaken, is significant. And in determining whether Valle and his alleged co-conspirators ever intended to actually commit a kidnapping, the fact that dates for kidnappings are repeatedly set and then pass without incident, inquiry, or comment is powerful evidence that Valle and the three individuals engaged in these allegedly “real” chats understood that no actual kidnapping was going to take place.

Likewise indicative of Valle’s lack of criminal intent is the fact that he provided his alleged co-conspirators with a veritable avalanche of false, fictitious, and fantastical information concerning himself and the steps he had allegedly taken to facilitate a kidnapping, including representations about a nonexistent van that would be used to transport victims to a non-existent cabin in rural Pennsylvania, where they would be held in a nonexistent soundproofed basement with a nonexistent pulley mechanism, and cooked in a non-existent human-size oven or using a nonexistent human-size rotisserie. The presence and quantity of concededly fictitious and fantastical elements in the chats and emails that the Government claims are “real” precludes any reasonable inference that Valle actually intended to kidnap a woman, particularly given the Government’s concession that nearly all of the kidnapping-related chats and emails that Valle engaged in are, in fact, fantasy.

Once the lies and the fantastical elements are stripped away, what is left are deeply disturbing misogynistic chats and emails written by an individual obsessed with imagining women he knows suffering horrific sex-related pain, terror, and degradation. Despite the highly disturbing nature of Valle’s deviant and depraved sexual interests, his chats and emails about these interests are not sufficient — standing alone — to make out *62the elements of conspiracy to commit kidnapping. There must be evidence that Valle actually intended to act on these interests with an alleged co-conspirator.

Under the unique circumstances of this extraordinary case, and for the reasons discussed in detail below, the Court concludes that the evidence offered by the Government at trial is not sufficient to demonstrate beyond a reasonable doubt that Valle entered into a genuine agreement to kidnap a woman, or that he specifically intended to commit a kidnapping. Accordingly, the jury’s verdict on Count One, conspiracy to commit kidnapping, cannot stand, and Count One will be dismissed.

As to Count Two, which charges that Valle exceeded his authorized access to a federal database, the Court concludes that Valle’s conduct falls squarely within the plain language of the statute. Accordingly, Valle’s motion for a judgment of acquittal on Count Two will be denied. To the extent that Valle seeks a new trial on Count Two, that motion will also be denied.

BACKGROUND

The Government contended at trial that Valle had conspired with three individuals to commit kidnapping: (1) Michael Van Hise, a New Jersey resident known to Valle only by his email addresses, “mikevanhise81@aol. com” and “michaell9902135@yahoo.com” (Tr. 430; GX 430-34); (2) an individual known to Valle as “Aly Khan,”1 who resided in Pakistan or India and used the email address “alisherkhan79@yahoo.com”2 (Tr. 618; GX 417-29); and (3) an individual known to Valle as “Moody Blues” or “Christopher Collins,” a resident of England whose email address was “meatmarketman@ rocketmail.com.”3 (Tr. 613; GX 401-16)

According to the Government, the alleged targets of the kidnapping conspiracy were: (1) Kathleen Mangan, Valle’s wife; (2) Alisa Friscia,4 a New York City school teacher and Mangan’s former co-worker; (3) Andria Noble,5 an Ohio prosecutor and college friend of Valle; (4) Kimberly Sauer,6 also one of Valle’s college friends, who was then working as a promotions director for radio stations in the Washington, D.C. area; and (5) Kristen Pontieelli, a 2012 graduate of Valle’s high school — Archbishop Malloy — whom Valle had never met.7 (Tr. 1517)

The Government also contended that Valle had discussed kidnapping Maureen Harti-gan — a woman Valle had known since high school — with Aly Khan, but did not argue that a conspiratorial agreement had been reached as to her. (Id. at 1517; see also id. at 1649) On May 31, 2012, Valle ran a search concerning Hartigan’s name using a New York City Police Department (“NYPD”) soft*63ware program that queried certain federal, state, and local law enforcement databases. (Id. at 582-84). It was undisputed at trial that Valle had no law enforcement purpose for performing this search. That search provided the factual basis for Count Two of the Indictment, which charges Valle with exceeding his authorized access to a federal database. (Indictment (Dkt. No. 9))

The Government’s evidence at trial included: (1) electronic “chats” and emails between Valle and his three alleged co-conspirators; (2) testimony and exhibits concerning Valle’s relationships and contacts with women who were alleged targets of the kidnapping conspiracy, including his wife; (3) other computer-related evidence, including text and image files Valle had downloaded or created, search terms he had input into his web browser, websites he had visited, and database searches he had run on his patrol car computer; and (4) excerpts from Valle’s post-arrest statement to FBI Special Agent Anthony Foto.8

I. VALLE’S BACKGROUND AND MAN-GAN’S DISCOVERY OF HIS INTERNET ACTIVITIES

Gilberto Valle was raised in Forest Hills, Queens. (Tr. 1024) He graduated from Archbishop Malloy High School and the University of Maryland. (Id. at 205, 208) After college, Valle returned to New York, and in 2006 he became a police officer in the NYPD. (Id. at 156) At the time of his arrest six years later in October 2012, Valle worked as a patrol officer in the 26th Precinct on the Upper West Side. (Id. at 156, 987-88, 990) There was no evidence at trial that Valle had ever acted violently toward a woman, had ever threatened a woman, had ever been the subject of any misconduct complaint as a police officer, or had ever been involved in criminal activity prior to this case. Kathleen Mangan, Valle’s estranged wife, testified that he had never been violent toward her or their child, and that he had no drug or alcohol problems. (Id. at 197)

Valle and Mangan met on a dating website in 2009. (Id. at 150) Their relationship quickly became serious and they soon moved in together. (Id. at 188) Mangan described these early months as “fun.” (Id. at 150) “We laughed together. It was nice. He opened doors, pulled out chairs.” (Id.) The relationship declined, however, after Man-gan — a New York City school teacher — became pregnant in the fall of 2011. (Id. at 151-52)

As an NYPD officer, Valle worked a 3:00 p.m. to midnight shift. (Id. at 159) After arriving home from work, Valle would typically spend a few hours “play[ing] video games, watch[ing] TV, [or] go[ing] on the Internet[.]” (Id., at 163) In the months after Mangan became pregnant, Valle “started staying up really late or not coming to bed at all.” (Id., at 163-64)

The couple’s relationship did not improve after their June 2012 wedding. (Id. at 150, 238) According to Mangan, “[t]he wedding was nice. The marriage was not.” (Id. at 238) Valle continued to spend the early morning hours online. (Id., at 164) Unbeknownst to his wife, Valle spent much of this time “chatting” over the Internet with others about kidnapping, raping, torturing, murdering, and cannibalizing various women he knew, including Mangan. (GX 401-34)

Mangan became increasingly concerned about Valle’s nighttime behavior. In August 2012, she discovered two image files on a MacBook laptop computer that the couple shared, after Valle had neglected to log out of his account. (Id. at 165) Although the images did not load, Mangan was able to discern the URL for the website from which the images had been downloaded. (Id.) After entering the URL into the computer’s web browser, a website Mangan recalled as “Fetish Net” appeared on the screen. (Id.) Mangan recalls that a “girl [shown] on the [website’s] front page was dead.” (Id. at 166) Mangan confronted Valle about what she had discovered, but his late-night online activities continued, and their relationship steadily deteriorated. (Id. at 166-67, 176)

*64On September 9, 2012, Mangan installed spyware on the couple’s MacBook computer. (Id. at 174) The spyware recorded every keystroke and website entered by the computer’s users, and took “pictures every five minutes or so of whatever [was] happening on the computer screen.” (Id. at 175) The next morning, Mangan found several disturbing images captured by the spyware, including “pictures of feet that were not attached to bodies.” (Id. at 176) Mangan was also alarmed by several screen names that Valle had been using to communicate with others, including “girldealer” and “girlmeathunter,” as well as websites he had visited, including “[d]arkfetishnet,” “sexyamazons,” “darkfet,” “motherless,” and “fetlife.” (Id.)

After confronting Valle a second time about his Internet activities, Mangan left the couple’s Queens apartment with their infant daughter and flew to her parents’ home in Nevada. (Id. at 177-79, 224-25) Once in Nevada, Mangan further inspected the contents of the MacBook. (Id. at 180) Using the couple’s shared password, she was able to log-in to an email account whose address— “Mhal52@yahoo.com” — she did not recognize. (Id.) Mangan’s review of this email account uncovered Facebook images of herself and several other women she knew. (Id.) Mangan’s search regarding her own name revealed a lurid Internet chat in which Valle discussed butchering her: “I was going to be tied up by my feet and my throat slit and they would have fun watching the blood gush out of me because I was young[.]” Mangan testified that one participant wrote, “[‘]if she cries, don’t listen to her, don’t give her mercy.[’] And Gil just said, [T]t’s okay, we will just gag her.[’]” (Id. at 181) In other chats Mangan read, Valle discussed raping and torturing women Mangan knew, including Alisa Friscia, Kimberly Sauer, and And-ida Noble. (Id. at 181-82) In connection with “the pictures of the girls [Mangan] knew,” she also recalled reading, “this is a fantasy!.]” (Id. at 182)

Shortly after discovering these communications, Mangan contacted the FBI and authorized agents to make a copy of the Mac-Book’s hard drive. (Id. at 187) She also provided agents with keys to the couple’s apartment and authorized them to seize an HP laptop computer that had been used by both Mangan and Valle.9 (Id. at 187-88)

11. VALLE’S INTERNET CHATS

Valle used his Yahoo! email account10 to communicate with other members of the DFN. (Id. at 233-34, 1056) DFN is a “social media” website with 38,000 registered members worldwide, 4,500 of whom are active users of the site. (Defense Exhibit (“DX”) PI (Merenkov Deposition) at 11:16:29-36; 11:57:01-11:58:50)11 The website is designed to facilitate communication among those interested in a variety of sexual fetishes and deviant practices, including erotic asphyxiation, cannibalism, rape, necrophilia, and “peril” scenarios (i.e., fantasies that involve “a victim in a dangerous situation”). (Id. at 11:15:34-44; 11:46:30-11:47:05; 13:10:30-13:12:44) According to Sergey Merenkov, one of the website’s founders, DFN users typically access the site to engage in fantasy “role-playing.” (Id. at 11:12:24-26; 11:45:23-11:46:33) Valle began visiting the DFN website in 2010.12 (Tr. 1029)

*65By early 2012, Valle began communicating with certain DFN members — including his alleged co-conspirators — on email and Yahoo! messenger, an electronic chat service. (Tr. 1030) One of Valle’s alleged co-conspirators— Aly Khan — told Valle that he had been “banned from DFN due to [his] search for real women willing for slaughter or people wil[l]ing to send their women to me.” (GX 421 (Feb. 9, 2012, 10:25:06)) Merenkov testified that DFN would terminate the accounts of individuals who violated the site’s terms of service, including by engaging in conversations that sounded like they “could have led to something bad.” (DX PI (Merenkov Deposition) at 13:08:13-13:09:41)

A. Agent Walsh’s Analysis of Valle’s Internet Chats and Emails

The FBI’s forensic review of Valle and Mangan’s MacBook and HP computers revealed “thousands” of email and real-time electronic chats between Valle and “about two dozen other individuals.” (Tr. 424) Many of these Internet chats involved discussion of “[k]idnapping, raping, killing, eating, [and] cooking” women. (Id. at 445) The Bureau assigned Special Agent Corey Walsh to review and analyze Valle’s Internet-based communications. (Id. at 420)

In conducting his analysis, Agent Walsh divided Valle’s Internet communications into two groups: the first group consisted of chats and emails that Walsh believed were “fantasy,” while the second group consisted of chats and emails that Walsh believed reflected “real” criminal activity (id. at 425, 653):

In the ones that I believe[d] were fantasy, the individuals said they were fantasy. In the ones that I thought were real, people were sharing, the two people were sharing real details of women, names, what appeared to be photographs of the women, details of past crimes and they also said they were for real____

[ In the “real” chats, the participants] described dates, names and activities that you would use to conduct a real crime---[The “fantasy” chats were those] that didn’t seem realistic____They were clearly role-play. [The participants] used the word “fantasy” in the actual chats or emails.

(Id. at 425, 651)

Agent Walsh had been with the FBI about seven or eight months when he was assigned to the Valle investigation. (Id. at 418-20) Walsh joined the Bureau after graduating from college with a sociology degree and serving in the United States Army for several years. (Id. at 418-20, 654) There is no evidence that Walsh had any prior experience in law enforcement, nor is there any evidence that he had received academic or other specialized training that would have assisted him in distinguishing Internet chats and emails constituting “real” criminal activity from those reflecting fantasy role-play. (Id. at 654) Walsh acknowledged that he had never read the communications of known kidnappers and was not in a position to know how “real” kidnappers communicate with each other. (Id. at 769-70)

After reviewing “thousands” of Valle’s emails and electronic chats, Agent Walsh concluded that nearly all of Valle’s communications about kidnapping, sexual assault, murder, and cannibalism “were clearly role-play.” (Id. at 424, 425-26, 650-51, 653-55, 674) Valle’s fantasy role-play chats involved twenty-one of the twenty-four individuals with whom he had discussed these topics.13 Walsh further concluded, however, that forty of Valle’s chats and emails “contained elements of real crime[.]” (Id. at 650) Walsh reached this conclusion — as to these chats and emails — because “[t]hey described dates, names and activities that you would use to conduct a real crime.” (Id. at 651) In these forty chats and emails, Valle corresponded with one of three individuals — Michael Van Hise, Aly Khan, or Moody Blues. (Id. at *66656-57) Although Walsh testified that Valle’s communications with Van Hise, Aly Khan, and Moody Blues reflect an intent to actually commit a kidnapping, he conceded that the “fantasy role-play” chats and emails share many of the same features as the “real” chats and emails that allegedly reflect criminal intent, including discussion of dates for planned kidnappings, purported past crimes, and real women. (Id. at 657-75, 680-701, 703-24, 754-810, 813-16)

B. Valle’s Chats and Emails with Alleged Co-Conspirators

At trial, the Government argued that the evidence demonstrated a single conspiracy to kidnap certain women identified by Valle. (Id. at 121) However, the Government offered no evidence that Valle’s alleged co-conspirators — Van Hise, Aly Khan, and Moody Blues — communicated with each other or knew of each other’s existence. Accordingly, Valle’s communications with each co-conspirator are discussed separately below.

1. Valle’s Communications with Michael Van Hise

The Government contended at trial that on February 28, 2012, Valle and Michael Van Hise14 entered into an agreement to kidnap Alisa Friscia. (Id. at 1518) The earliest Valle/Van Hise communications introduced at trial are emails exchanged a month earlier, on January 27, 2012. (GX 430) In those emails, Van Hise asks Valle if he is “interested in trading” if Van Hise can “get a girl” for Valle.15 (Id. (Jan. 27, 2012, 1:11 p.m.)) Valle replies, “honestly i’m more in it for the cash. I have a few women who i plan on grabbing for myselfl.]” (Id. at 1:14 p.m.) Van Hise then asks whether Valle will agree to a payment plan, and whether Valle can send “pics of the [women] we[’]re talking about[.]” (Id. at 1:15 p.m.) Valle responds by emailing Van Hise four Facebook images of a woman Valle describes as 28-year-old “Alisa[.]” (Id. at 1:18 p.m.) The woman shown in these images is Alisa Friscia. (Tr. 433) Valle offers to kidnap Friscia and deliver her to Van Hise on a “[e]ash ... upon delivery” basis. (GX 430 (Jan. 27, 2012, 1:18 p.m.)) Van Hise asks Valle to “save her for me” (id. at 1:32 p.m.), and Valle replies, “yep she is all yours[,]” adding that Alisa is “around 5'5", 115 pounds[,] nice slender build[,] takes good care of herself.” (Id. at 1:33 p.m.) Valle further explains that Alisa “is a teacher and has the week of Feb 20 off.”16 (Id. at 1:36 p.m.) Valle states that he “can kidnap her then, [and that] it will be awhile before anyone realizes she is missing.” (Id. at 1:36 p.m.)

Van Hise discloses that he doesn’t “have the money right now[,]” but asks Valle to name his price. (Id. at 1:37 p.m.) Valle17 writes that the price is $4,000, and asks Van Hise, “what will you do with her?” (Id. at 1:38 p.m.) The following exchange then takes place:

mikevanhise81: [¶]... ] what i wanna do is make her my slave[,] sex, maid and other wise, i will cause her to play my fantasies and do what i like, if she gets preg. i will kill her if she cheats i will kill her and if she tries to leave first shell get a bad beating second time shell be hung.

Hal M: very very nice____she is a sweet girl, not sure how soon before she would submit. I will abduct her right out of her apartment, stuff her into a large *67piece of luggage after tying up her hands and feet and off we go. do you want her clothed in what she was wearing? or stripped naked?

mikevanhise81: whatever is better for you and when i get her we[’]ll meet somewhere so we can rape her together before i leave with her.

Hal M: excellent! i’ll leave her clothes on. I will give you the pleasure of unwrapping your gift

mikevanhise81: sounds great to me also do you wanna hang her with me just for laughs before we leave

Hal M: its up to you. she is all yours. I really don’t mind if she experiences pain and suffering. I will sleep like a baby.

mikevanhise81: k great anyway gtg for now but wil message later

(Id. at 1:40-1:50 p.m.) After this January 27, 2012 chat, Van Hise does not “message later[,]” and the week of February 20, 2012, passes with no more discussion between Valle and Van Hise about kidnapping Friseia, with no attempt to kidnap Friseia, and with no steps taken to kidnap Friseia. (Tr. 756)

Valle and Van Hise’s next exchange takes place on February 28, 2012. (GX 432) On that day, Valle transmits Faeebook images of a number of women to Van Hise, and Van Hise again selects “Alisa” for kidnapping. (Id. (Feb. 28, 2012, 4:06 p.m.)) Van Hise asks Valle, “thats the teacher right?” (Id. at 4:13 p.m.) Valle replies, “yes 5th grade teacher, single, 28 yrs old[.]” (Id. at 4:16 p.m.) Valle adds that the attached image “is the most recent picture of her [...] taken this past Friday[.]” (Id. at 4:21 p.m.) Van Hise says that he “definitly want[s] her and how much again im sorry to ask but I dont rememe-ber[.]” (Id. at 4:22 p.m.) The two then discuss price. Valle insists that Van Hise pay $5,000 for the kidnapping of Friseia, even though a month earlier he had set a price of $4,000. Neither Valle nor Van Hise acknowledge the fact that Valle had previously set a price of $4,000 (see GX 430 (Jan. 27, 2012, 1:38 p.m.)):

Hal M: $5,000 and she is all yours

mikevanhise81: could we do 4

Hal M: i’m putting my neck on the line here____if something goes wrong some how i am in deep shit. $5,000 and you need to make sure that she is not found. She will definitely make the news.

mikevanhise81: no prob shes never leaving the house and also k about the price and would you do a payment plan or full up front

Hal M: full payment due at delivery ... just so that you know she may be knocked out when I get her to you. I don’t know how long the solvent I am using will last but I have to knock her out to get her out of her apartment safely

(GX 432 (Feb. 28, 2012, 4:25-4:32 p.m.))

Van Hise then asks Valle whether he “want[s] to know what im going to do with her if the cops get close or she gets to much to handle[.]” (Id. at 5:14 p.m.) Valle replies,

Hal M: yeah fill me in a bit on her ordeal ... i think she will be tough to break, she is kind of feisty and no nonsense

mikevanhise81: thats fine i can beat her and break her in more than one way also her ordeal is after she fills her purpose or the cops get close she will be raped made to passout by suffocation, tied up drove to somewhere secluded, raped again made to pass out again by strangling than when she comes to hung and raped up the ass while hanging before being buried while i take pics or tape it

Hal M: thats fuckin great, whenever you come here to meet me, it will be absolutely amazing to watch her come out of her school and follow her without her knowing. All the while we both know that her days of freedom are limited, i think you will be happy with what you see. Pictures don’t do her justice

mikevanhise81: i like that and i believe i will be so fucking hapy ill probably fuck her right than and there once we get her in my ear

Hal M: it is going to be so hard to restrain myself when i knock her out, but i am aspiring to be a professional kidnapper and that’s business. But i will really get off on knocking her out, tying up her *68hands and bare feet and gagging her. Then she will be stuffed into a large piece of luggage and wheeled out to my van18

(Id. at 5:18-5:27 p.m.)19 Van Hise responds, “gtg talk later this week[.]” (Id. at 5:37 p.m.)

The Government offered no evidence that Valle and Van Hise ever again discuss kidnapping Alisa Friseia,20 and their next communication does not take place “later [that] week” but instead on April 20, 2012, nearly two months later. (GX 433)

On that day, Valle sends Van Hise an email with the subject line “Veronica.” (Id. (Apr. 20, 2012, 3:16 p.m.)) At trial, Agent Walsh identified one of the attachments to this email as an image of Veronica Bennett. (Tr. 444) The Government did not contend at trial that Valle had entered into an agreement to kidnap Bennett. In their email exchange, Valle tells Van Hise, “[g]ive me a week to watch her and get to know her routine, then we will agree on a date.” (GX 433 (Apr. 20, 2012, 3:16 p.m.)) Van Hise replies “k about the routine thing[,]” and asks “do you want to know what id do with her[?]” (Id. (Apr. 24, 2012, 9:11 a.m.)) Valle responds, “yeah what will you do with her? I got her route to and from her job yesterday. I saw her go to work this morning too. It may be a tough abduction but give me a couple of more days.” (Id. (Apr. 24, 2012, 9:57 a.m.)) Van Hise replies, “i want to rape her snuff her in different ways and use her as a prostitute till i tire of her than kill her[.]” (Id. (Apr. 25, 2012,10:05 a.m.))

On May 2, 2012, Van Hise and Valle have an email exchange about a possible meeting. *69Referring again to “Veronica,” Van Hise asks, “when can we meet so i can see her[?]” (GX 434 (May 2, 2012, 12:19 p.m.)) Valle replies, “Come over here next week. We’ll watch her together and I can knock the price down to $10,000.” 21 (Id. (May 3, 2012, 1:39 a.m.)) There is no evidence that Valle or Van Hise ever took any steps to kidnap Veronica Bennett; that Van Hise and Valle ever met or made preparations to meet; or that Van Hise knew where Valle lived. The Government introduced no other communications involving Valle and Van Hise.

2. Valle’s Communications with “Aly Khan”

The Government argued at trial that Valle had also conspired with an individual known to him only as “Aly Khan” (“alisherkhan79@ yahoo.com”) to kidnap Kathleen Mangan and Andria Noble. (Tr. 1522)

As with Van Hise, Valle’s chats "with Khan begin with Valle offering to “get[ ] a girl” for Khan, who lives in India or Pakistan.22 (GX 417 (Jan. 23, 2012, 05:34:48); Tr. 618) During this exchange, Valle and Khan discuss several potential kidnapping scenarios, but do not settle on a specific target. Valle first suggests that he could “talk [his] girlfriend” “Kathleen” “into going to india” during “the week of Feb 20[,]”23 which at that time was less than a month away. (GX 417 (Jan. 23, 2012, 05:42:38, 05:55:50, 05:52:47)) Valle tells Khan that because “Kathleen” is “a teacher[,]” she “has a week off” then.24 (Id. at 06:45:38)

During this same January 23, 2012 chat, Valle suggests that Khan instead travel to Pennsylvania, where Valle claims to live and where he purportedly “ha[s] a place in the middle of nowhere[.]” (Id. at 06:01:56, 06:00:37) Khan complains that U.S. immigration laws will not permit him to enter this country (id. at 06:03:55), and he proposes an alternative plan in which he will travel across the Indian border to meet Valle and his girlfriend in Rawalpindi, Pakistan. (Id. at 06:14:31) Khan suggests that Valle tell his girlfriend that Khan is an “old friend.” (Id.) Khan goes on to say that, from Rawalpindi, they can travel to Khan’s home in India, where they will gag “Kathleen” and “take her to [Khan’s] basement” before slaughtering her. (Id.) Based on a photograph of Mangan that Valle had previously transmitted, Khan offers to send Valle a “meat analysis report as we do on our goats[.]” (Id. at 06:17:39) In the same chat, Khan proposes yet another scenario in which Valle would kidnap a woman himself, and Khan would “guide” Valle via “web cam” in slaughtering her. (Id. at 06:49:37-06:51:14)

Two days later, on January 25, 2012, Khan tells Valle that he has found a woman who is willing to come to his home on January 29, 2012, and that he plans to “drug her and do her.” (GX 418 (Jan. 25, 2012, 7:56:00)) He asks Valle, “can you get your girl here? ?” (Id. at 7:56:15) Valle responds, “not on that day[,]” and adds that will not be able to bring Kathleen during the week of February 20 either, as they had originally discussed, because his girlfriend made plans to visit her parents. (Id. at 07:56:32-44) Valle’s response appears to irritate Khan, who writes: “i am serious about it [...] so donot think im joiking and wasting my time ... may be later you can bring her[?]” (Id. at 07:56:54) Valle replies, “i really wish i could[.]” (Id. at 07:59:59)

Khan then changes course and asks Valle if he has the “courage to do her there? ?” Valle responds, “not alone[.]” (Id. at 08:05:10, 08:05:28) Valle also volunteers that *70there are “others who i would eat before her[.]” (Id. at 08:05:55) Khan replies, “great [¶]... ] why cant you do them alone. Its dam easy[.]” (Id. at 08:07:19) Valle responds “maybe you can talk me into it[.]” (Id. at 08:07:33) Khan then gives Valle the following instructions:

listen, when you are lone call them for drink. Put vallium tablets or daizapaam into drink. They will feel knocked out. When they are more sleepy. Bind them Take them to your bathroom. Cut their throats open. Wash their meat in bath tub. put their meat in small plastic bags and freeze it. use it when needed. Head and guts can be burned in your court yard[.]

(Id. at 08:11:48)

The January 25, 2012 chat then turns to women other than Mangan. Valle describes a woman he has never met who is 21 years old, 5'8" tall, 145 pounds, and whose name is “Kristen[.]”25 (Id. at 08:17:05-16, 08:17:44) The two then discuss another woman whom Valle “actually do[es] know[,]” and whom he claims he “could definitely take the risk [of] eating[.]” (Id. at 08:21:51-08:22:09) Khan then asks Valle, “who are these girls anyways buddy? ? ? you have lot of them[.]” (Id. at 08:25:04) Valle responds, “friends of mine[.]” (Id. at 08:25:14) Khan comments that Valle is “lucky[,]” but that he needs to “get some courage[.]” (Id. at 08:25:28)

Khan then questions Valle about whether he is “for real”:

alisherkhan79: I think you are not for real... otherwise they would not be living

alisherkhan79: you are not realy interests ed in slaughetring them

mhal52: maybe one day

alisherkhan79: you are wasting time buddy. I am for real not fantasy.

mha!52: i am just afraid of getting caugh t

mha!52: if i were guaranteed to get away with it, i would do it

alisherkhan79: ok.. .iet me tell you. can you please close these phots ... it makes me hot:)

alisherkhan79: i can gurantee____i ahve done it before, i ma doing it this month and i will always do it.

alisherkhan79: you need a plan in little detail

mhal52: i am a little different though, i am a little more sadistic

mha!52: i would want to see her suffer

mhaI52: i want to tie her up to a metal frame and slowly roast her alive until she dies

alisherkhan79: ok..let me ask you one last time before i tell you more.

alisherkhan79: ARE YOU REALLY RA-ELLY INTO IT. ARE YOU READY TO SLAUGHTER ONE BEING SAFE

mhaI52: yes

alisherkhan79: ARE YOU SURE?

mhal52: definitely

alisherkhan79: so, when you think you can do it ... how soon can you gather courage

mhal52: i dont know ...

alisherkhan79: get your mind ready...i will guide you rest

mhal52: ok

(Id. at 08:27:02-08:33:05, 08:37:07-08:39:30) (emphasis in original).

Valle and Khan do not agree upon a particular victim at that time. Instead, Khan tells Valle to “get your mind ready and choose your first victim.” (Id. at 08:41:59) Valle replies that he already has a victim “picked out[,]” but he does not identify her. (Id. at 08:42:45) Khan questions Valle about what hours he works and how he is employed. Valle tells Khan that he works a “typical office job” and is “home by 6” p.m. every day, with weekends off.26 (Id. at 08:40:01, *7108:40:26-32) Khan then comments that Valle “can do it on [the] week end.” (Id. at 08:40:39) Khan advises Valle to take “some time to think on a plan” and that Khan will “wait for final words” from him. (Id. at 08:43:37-46) There is no evidence that Valle and Khan ever discuss Mangan or Ponticelli again.

On January 27, 2012, Khan tells Valle that he has a victim picked out whom he intends to kill in three days. (GX 419 (Jan. 27, 2012, 16:37:37,16:38:12)) He sends Valle a link to a YouTube video depicting the slaughter of a goat, claiming that he is watching this video and others to “practice [his] slaughter.” (Id. at 16:36:04) Khan says that he wants “white meat” but could only find “a local hooker who has brown meat.” (Id. at 16:38:54) Khan complains to Valle, “i thought you will help me .. .but you could not get me one.” (Id. at 16:40:54)

In their next chat, on February 9, 2012, Valle tells Khan that he has his “victim picked out[,]” a 26-year-old woman he identifies as “Andria[.]” (GX 421 (Feb. 9, 2012, 10:18:27,10:40:01)) Khan appears jealous that Valle has found a victim. He writes: “i donot know, how to find woman for slaughter now____ You are lucky to have got your animal.” (Id. at 10:25:41-10:25:58) Valle asks whether it would be “remotely possible to stick [Andria] in the oven while she is alive? at a relatively low heat, maybe 160-170 just for my own entertainment and for her suffering[?]” (Id. at 10:34:53) Khan replies, “ya ya ... but alive will be difficult. You will have to cut her body or tie her well to oven her. her brain will pop in oven and eyes will pop as well, kind of messy with shit inside her tummy. I think [you] need to take her intet-sines out and clean her well.” (Id. at 10:37:20) In discussing his plan to kidnap Andria, Valle tells Khan that he was “able to get a stun gun[,]”27 and that he will “pack her in a large suitcase” when he kidnaps her. (Id. at 10:20:06,10:20:32)

At trial, the Government offered evidence that “Andria” is Andria Noble. Noble was then a 27-year-old prosecutor who lived and worked in Columbus, Ohio.28 (Id. at 239) Valle and Noble became friends while attending the University of Maryland. (Tr. 495, 634) Noble testified that she communicated with Valle online on a “regular basis” and that she considered him a “close friend” in college. (Id. at 242-43)

On February 10, 2012, Valle sends Face-book images of Noble to Khan. (GX 422 (Feb. 10, 2012, 18:26:14-18:31:41); Tr. 634) In their chat that day, Valle tells Khan that he “really want[s] [Andria] to be alive in the oven” so she can “experience being cooked alive[.]” (GX 422 (Feb. 10, 2012, 18:34:32-40)) He explains that he “is not into the humane stuff’ and that “its personal with Andria. she will absolutely suffer[.]” (Id. at 18:44:16) Valle also tells Khan that he has “been watchin outside [Andria’s] house[.]” (Id. at 18:24:57) The next day, Valle tells Khan that “Feb 20 is a holiday, so that is my target weekend[.]”29 (GX 424 (Feb. 11, 2012, 05:57:38)) Valle also tells Khan that he “could use an assistant,]” but Khan advises Valle that it is “better [to] do it alone[,]” because one “cant trust too many” people. (Id. at 05:58:54, 06:00:08)

Noble was not kidnapped on February 20, 2012, and the Government offered no evidence that Valle