When fantasy crosses a criminal line

In his mind and online persona, Gilberto Valle left little doubt about the depths of his depravation: In communications over the Internet, he imagined subjecting women he knew to sex-related torture and, in some cases, murder and cannibalism.

And, prosecutors said, that activity and other actions were all part of what they described as a kidnapping conspiracy, a charge for which he was convicted in 2013.

But on Tuesday, a federal judge in Manhattan ordered Mr. Valle, 30, released on bond just hours after overturning his conviction.

The judge, in a decision released late Monday night, concluded that Mr. Valle’s Internet plotting had been “fantasy role play” and was not evidence of an actual crime.

“This is a conspiracy that existed solely in cyberspace,” the judge, Paul G. Gardephe of Federal District Court, said in a 118-page opinion that granted a judgment of acquittal to Mr. Valle, a former New York City police officer who had faced a potential life sentence for his conviction.The ruling resurrected the key issue in Mr. Valle’s widely followed trial: When does a virtual crime, contemplated in Internet chat rooms, become an actual crime?

Joseph V. DeMarco, an Internet lawyer and a former head of the cybercrime unit in the United States attorney’s office in Manhattan, said after reading the decision: “I think that the court was profoundly disturbed by the relative lack of evidence in the kinetic world corroborating the defendant’s intent to carry through on any of the communications.”

“What this case, I think, emphasizes,” Mr. DeMarco added, “is that people have broad rights to express fantasies online, which can lead to a lot of speech that people find disturbing and repugnant but which nonetheless will not cross the line into criminal liability.”

Judge Gardephe wrote that in the charged conspiracy, all communications between Mr. Valle and his alleged co-conspirators in New Jersey and overseas took place over the Internet. None of the conspirators ever met or spoke by phone, exchanged accurate information about where they lived or even knew or sought to learn one another’s true identities, he observed.

“Moreover,” the judge wrote, “the nearly yearlong 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.”

At trial, prosecutors argued that Mr. Valle took “concrete steps” to further the kidnapping plot, including illegally looking up potential victims in a law enforcement database, carrying out surveillance of them and using the Internet to research ways to abduct, subdue and cook potential victims.

“He left the world of fantasy; he entered the world of reality,” a prosecutor, Hadassa Waxman, said in her closing argument.

But in his ruling, Judge Gardephe wrote that “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 the elements of conspiracy to commit kidnapping.”

http://www.nytimes.com/2014/07/02/nyregion/officer-gilberto-valle-freed-after-conviction-overturned-in-cannibal-case.html

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