Gilberto Valle,, now 31, became a free, if notorious, man last year after a federal judge overturned the former New York City police officer’s convictions stemming from his many Internet musings on the kink website Darkfetishnet.com about wanting to kidnap, rape, kill and eat women in his social circle.
The criminal indictment against Valle set off a controversy three years ago about the limits of free speech in the United States, a debate that still rages with the recent broadcast of the HBO documentary “Thought Crimes.”
Although a federal jury believed Valle to be a serious threat, U.S. District Judge Paul Gardephe saw no criminal intent in the former police officer’s seemingly implausible chats. His ruling overturning the jury’s verdict released Valle from prison in July, but prosecutors remain committed to putting Valle behind bars for the rest of his life.
A three-judge panel of the 2nd Circuit appeared split on Valle’s fate at a Tuesday morning hearing.
Among several comments indicating he believed the Internet chats to be pure nonsense, Judge Barrington Parker at one point likened Valle’s case to a police wiretap of drug traffickers discussing “cocaine [that] is brought down by a leprechaun.”
“You’ve got to be skeptical, right?” he added.
Pushing the analogy even further, Parker proposed another narcotics drop-off “by a bald eagle who came down from Mt. Everest.”
Assistant U.S. Attorney Justin Anderson bristled at the analogy during his rebuttal.
“Had Valle said, ‘We want to kidnap a leprechaun from the moon,’ we would not be here,” Anderson replied.
The subjects of Valle’s chats, Anderson emphasized, were women like his former University of Maryland classmate Kimberly Sauer.
Noting that Valle met with this woman when he wasn’t chatting about her, Judge Chester Straub said, “seems to me [like] surveillance.”
Valle’s appellate attorney Edward Zas noted that nothing ever came of that meeting.
“What happens next?” Zas asked. “He never communicates any of that information to his alleged co-conspirator.”
The appellate panel’s third member, Judge Susan Carney, appeared more ambivalent than either of her colleagues. Carney’s questions did not so much let on whether she believed the plot to be probable, but whether the jury had the right to believe it to be so.
At one point, she noted that the jury may have been swayed by the fact that Valle’s ex-wife, Kathleen Mangan, testified against him.
“Was the jury entitled to take into account that she fled?” Carney asked. “That she took this seriously?”
While Valle’s attorney Zas agreed jurors could consider it, he also noted that Judge Gardephe forbid them from reading motive of Valle’s intent from her testimony.
For the world of conspiracy, Zas said: “It’s like a tango. It takes two. The government has to prove that at least one of these mysterious personas in cyberspace was a real person … with real intent.”
Meanwhile, Valle is also fighting to overcome his remaining conviction under the Computer Fraud and Abuse Act (CFAA) for using a police database without authorization to stake out the women.
The Electronic Frontier Foundation, a digital civil liberties group, has warned that upholding this conviction would turn any unauthorized use of an employer’s computer program into a federal crime.
Probing this position, Judge Carney asked the government whether an employee playing Solitaire or using Facebook on the company clock could face federal litigation.
Assistant U.S. Attorney Randall Jackson, who also prosecuted Valle during the trial, dismissed the argument as a “Doomsday scenario.”
“You’re not obtaining information improperly in that situation,” he said.
Zas countered that the Congress created the CFAA to prevent computer hacking and unauthorized “access,” not unauthorized “use.”
The NYPD already fired Valle based on his unauthorized use of the police database, and the former cop might still face criminal or civil penalties for what he did at the state level, Zas added.
Valle’s conviction for the federal offense reportedly stands in the way of his stated ambitions to become a lawyer, but he did not appear at his own appeal on Tuesday.
Remaining an indefatigable advocate of Valle, the former policeman’s trial attorney, Julia Gatto, passionately pleaded her client’s innocence after the hearing.
“These conversations, if you read them, are so preposterous,” Gatto told reporters. “They’re so ridiculous. They sound like two people talking about leprechauns and moonbeams.”
Commenting on HBO’s documentary broadcast on Monday, Gatto added: “It’s a conversation that I think is certainly out there. It’s a very thought-provoking conversation. It’s a scary conversation because what the conversation is, is can we be convicted for our thoughts? And we hope dearly that we can’t.”
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