United States v. Joseph

542 F.3d 13, 2008 U.S. App. LEXIS 19169, 2008 WL 4137900

• Court: Court of Appeals for the Second Circuit
• Decided: September 9, 2008
• Docket: Docket 06-5911-cr
• Status: Published

Opinions

JON O. NEWMAN, Circuit Judge:

This criminal appeal primarily concerns a claim that a jury charge permitted conviction on an invalid alternate basis. Defendant-Appellant Dennis Joseph appeals from the December 21, 2006, judgment of the District Court'for the Southern District of New York (Richard Owen, District Judge) sentencing him to 97 months after a jury found him guilty of using his computer to send messages on the Internet to entice an individual he believed to be an underage girl to engage in unlawful criminal sexual activity, in violation of 18 U.S.C. § 2422(b). On appeal, Joseph contends that he did not receive a fair trial for several reasons, including denial of an expert witness, denial of an opportunity to rebut prosecution evidence, and an erroneous jury charge. We conclude, primarily because of significant error in the jury charge, that a new trial is required.

Background

Joseph is 40 years old, married, and has a six-year-old child. 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, in violation of 18 U.S.C. § 2422(b). After a seven-day trial in April 2006, a mistrial was declared when the jury was unable to reach a verdict.

The evidence at the retrial included the following. In July 2005, Joseph visited an Internet chat room called “I Love Older Men,” where he initiated a conversation with an individual with the screen name¹ “Teen2Hot4U,” who purported to be a 13-year-old girl named “Lorie.” “Teen2Hot4U” was in fact Stephanie Good, a 55-year-old woman who spends 20 to 50 hours a week surfing the Internet for those she believes to be sexual predators and reporting her finds to the FBI. See United States v. Brand, 467 F.3d 179, 183 (2d Cir.2006) (reporting Ms. Good’s Internet chat-room conversations using the screen name “Sara”).

Using the screen name “DSax25” and describing himself as a 40-year-old professional musician, Joseph had approximately 50 instant message and email chats with Good, almost all of which he initiated. Most of the conversations were explicitly sexual and mentioned sexual acts that Joseph stated he would perform with “Lorie.” In one conversation Joseph mentioned he would be interested in meeting “Lorie” and asked, “[Ljet’s just say ... hypothetically where would you want to meet?” “Lorie” sent Joseph a picture, depicting Good at age 13 or 14 years.

In a subsequent message, “Lorie” referred to her friend “Julie,” who was in fact FBI agent Austin Berglas posing as a 13-year-old girl. See Brand, 467 F.3d at 183 (reporting Berglas posing as “Julie”). Joseph asked for a picture of “Julie” and suggested that .“Lorie” give “Julie” his email address. “Lorie” later provided Joseph with “Julie’s” screen name. Joseph then began exchanging messages with “Julie,” describing sexual acts he wanted to perform with her.

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 sexual activity the two might enjoy. That same day he emailed “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. The two exchanged various emails coordinating the meeting the next day. On August 31, Joseph sent his final message to “Julie,” and they agreed to meet outside the Franklin Street Station Café. “Julie” asked 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. Is that Okay?” The remainder of the conversation, as reported by Berglas during his testimony, was as follows:

[“Julie”]: No.

[Joseph]: Not okay?

[“Julie”]: You may not show up?

[Joseph]: I promise I will show up. I promise.

[“Julie”]: So what do you mean? You may not like me?

[Joseph]: I just may have a problem because I am so much older than you

[“Julie”]: Oh

[Joseph]: But I will definitely be there and we can see then. Okay?

Later that morning, Joseph showed up at the café, which was under surveillance, and was promptly arrested while looking into the window. He was not carrying a condom or a lubricant. Cf. Brand, 467 F.3d at 186 (Internet enticement defendant arrested with three condoms in glove compartment of his car).

After his arrest, Joseph was advised of his rights and spoke with the arresting agents. He told Berglas that he came downtown “to meet a ... girl that he had met while chatting on the [I]nternet.” Joseph stated that “you really don’t know the actual age of people you talk to on the [I]nternet,” but indicated that he believed “Julie” was 13 years old at the time he showed up at the café. Id. Joseph stated he had no intention of having sex with “Julie” but wanted to warn her that “talking to older men on the Internet about having sex was dangerous.”

The defense sought to portray Joseph as an individual with a proclivity for muscular women who never knowingly communicated with a minor over the Internet and primarily used the Internet for role-playing purposes. His wife, Yana, testified about Joseph’s interest in muscular women and his Internet addiction to sexual fantasy role-play. On cross-examination, Yana testified that her husband was a member of an Internet group called “Muscleteens,” which, according to her, solicits pictures of muscular girls between the ages of five and twenty.

Joseph testified on his own behalf. He explained that “DSax25” was “an idealized version of what ... Dennis Joseph can’t do but can on the [I]nternet.” He testified that he browsed the Internet looking for female bodybuilders. He introduced 25 profiles of the people on his buddy list,² 21 of whom were adult female bodybuilders.

Joseph stated that when he encountered “Lorie” in what he believed was an “adult sex theme[d]” chat-room, he was convinced that she was an adult posing as a teenager. He claimed that her familiarity with sexual terminology convinced him that she was part of a “make-believe, pretend world.” When “Lorie” offered to introduce him to “Julie,” he played along. Joseph believed “Julie” was also a sexually experienced adult engaged in role-playing. Joseph testified that his belief was confirmed when “Julie” sent him a picture of herself with long nails because he found it difficult to believe that someone with long nails would be a gymnast. The Government had earlier presented a witness who testified that, as a teenager, she had done gymnastics with long fingernails.

Joseph also testified that after arranging the meeting with “Julie,” he worried that he might have misjudged the situation. Julie’s angry tone when he couldn’t “promise anything” made him think that she might, in fact, be a teenage girl. Joseph claimed that he thought to himself “what am I going to do if [she] actually is a minor” and that he decided that if she was in fact a minor he was going to take her into the café, sit down, eat lunch, and explain to her that he was pretending because he thought she was an adult and that he was way too old to be involved with her.

On cross-examination the Government asked Joseph about his participation in the “Muscleteens” group, which his wife had mentioned during her cross-examination. Joseph admitted joining the site, which describes itself as a group encouraging users to post pictures of girls “between 5 and 18” showing off their muscles. He claimed that when he joined there was a picture on the front cover of a bodybuilder who was 19 or 20, and that he did not recall seeing pictures of younger girls. He also stated that the few times he looked at the site, the pictures had changed, and that each time they were “predominately 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 Mus-cleteens 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. Over a defense objection, the prosecution was permitted to introduce pictures of young girls from the group.

The evidence thus framed for the jury the issue of whether Joseph enticed “Julie” to meet with him for the purpose of engaging in unlawful sexual conduct with a person he thought was a minor, or whether, as he claimed, he was engaged only in role-playing, met her to determine her true identity, and had decided not to have any involvement with her if she turned out to be a minor. By its verdict, the jury obviously rejected his defense.

Discussion

The Appellant seeks a retrial because of an alleged error in the jury charge and several evidentiary rulings claimed to have denied him a fair trial.

I. Jury charge

Joseph contends that the trial judge committed reversible error by giving a jury charge that permitted a conviction on either of two bases, one of which is not an offense. The indictment charged a violation of 18 U.S.C. § 2422(b) by using a facility of interstate commerce to “persuade and entice” a person under 18 to engage in sexual activity that constitutes a criminal offense.

The District Judge instructed the jury on each of the three elements of the crime: (1) use of a facility or means of interstate commerce; (2) use of the Internet to knowingly attempt to persuade or entice a person whom the defendant believed to be under 18 years of age; and (3) that if sexual activity had occurred, the defendant could have been charged with a crime under New York Law. The Appellant challenges the instruction elaborating on the “enticing” element:

[T]he second element the Government must prove beyond a reasonable doubt is that the defendant used the [Ijnternet to knowingly attempt to persuade or entice a person who the defendant believed to be under the age of 18 years to engage in any sexual activity.

Now, as for the terms “persuading” and “[e]n[t]i[e]ing,” I charge you that these words are common usage and should be given their common meaning. Persuade means to move by argument or entreaty or expostulation to a belief, position, or course of action — wow, that is a mouthful. The term “entice” means to wrongfully solicit, persuade, procure, allure, attract, coax, or seduce, or to lure, induce, attempt, incite, or persuade a person to do a thing.

I instruct you, the government does not need to prove that the defendant attempted to wholly create desire where such desire never existed. The government only needs to show, beyond a reasonable doubt, that the defendant attempted to convince or influence the person he believed was a 13 year old girl to engage in a sexual act with him, or made the possibility of a sexual act with him more appealing.

(emphasis added)

The defendant objected to the italicized portion of the “enticing” element at both trials and renews his claim on appeal.³

Where an instruction defining one of two alternative grounds is legally erroneous, a court must reverse unless it can determine with absolute certainty that the jury based its verdict on the ground on which it was correctly instructed. See Griffin v. United States, 502 U.S. 46, 5860, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991); 2A Wright, Federal Practice and Procedure, § 485, at 382 n. 16 (3d ed.2000).

“[A] conviction under § 2422(b) requires a finding only of an attempt to entice or an intent to entice, and not an intent to perform the sexual act following the persuasion.” Brand, 467 F.3d at 202. Most of the jury instruction on the “enticement” element properly reflects the required focus on attempting or intending to entice. The instruction states that the Government need show only “that the defendant attempted to convince or influence the person he believed was a 13 year old girl to engage in a sexual act with him[.]” However, the alternative basis for conviction in that instruction — “or made the possibility of a sexual act with him more appealing” — does not reflect the requirement of an intent to entice. Indeed, by providing the “more appealing” formulation as an alternative to the “convince or influence” language, which had previously been explained as examples of “enticing,” the challenged language permitted conviction even if Joseph did not intend to entice “Julie” into engaging in a sexual act with him.

Joseph sought to defend the charge against him by claiming that he was only engaging in cybersex conversation (simulating sex via sexual communication 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. Of course, the jury did not have to credit his explanation, and the portions of his conversations that could be understood as intended to make the possibility of a sexual act with him “more appealing” were evidence supporting an inference that he did intend to entice her. But the offense remains “enticing,” and making a sexual act “more appealing” in the absence of an intent to entice is not a crime.⁴ If jurors thought that Joseph only wanted to make “Julie” think that sexual conduct with him would be appealing, but did not intend to entice her to engage in such conduct with him, they would have convicted him for having cybersex conversation, which is not a crime, but not for violating section 2242(b).

The risk of an improper conviction based only on the “more appealing” formulation was heightened by the Government’s summation. First, the prosecutor told the jury that “the defendant wanted Julie to think that engaging in a sexual act with him would be appealing and enticing. And that, ladies and gentlemen, is a federal crime.” Although the word “enticing” was used, it was used to reflect the effect on “Julie,” not whether Joseph’s intent was to entice. See United States v. Dhingra, 371 F.3d 557, 567 (9th Cir.2004) (emphasizing that focus of section 2422(b) is on the defendant, not the victim); United States v. Rashkovski, 301 F.3d 1133, 1137 (9th Cir.2002) (Under section 2422, “it is the defendant’s intent that forms the basis for his criminal liability, not the victims’.”).

Then the prosecutor went further and invited the jury to rely solely on the “more appealing” alternative in the charge. She told the jury: “The crime that he’s been charged with is enticement, that he was attempting to persuade or entice a minor into sexual activity. As I expect the judge to instruct you, that means the government need only show that the defendant attempted to make the possibility of a sexual act with him more appealing to someone he thought was a minor.” Trial Transcript 1048-49 (emphasis added). In fact, that was not all that the Government needed to show.

The “more appealing” formulation apparently derives from language in United States v. Rashkovski, 301 F.3d 1133 (9th Cir.2002), which the Government cited to the District Court in support of its request to include this formulation. In Rashkovski, a defendant convicted of enticing women to come to the United States from Russia for the purpose of prostitution challenged the sufficiency of the evidence on the ground that the women wanted to leave Russia of their own accord. See id. at 1136. The Ninth Circuit affirmed the conviction for violating 18 U.S.C. § 2422(a) because the defendant had offered to make and had paid for the women’s travel arrangements, and they had accepted his offer and traveled with his assistance. See id. at 1137. “Enticement,” the Court stated, “merely requires that [the defendant] have convinced or influenced [the women] to actually undergo the journey, or made the possibility more appealing.” Id. There is no indication that the “more appealing” formulation was included in the jury charge at all, much less as an alternative to a required finding of enticement. We agree with the Ninth Circuit that making a possibility more appealing can be evidence of enticement, but we do not read that Court’s opinion as a ruling that doing so can be a basis for conviction under either subsection of section 2422 in the absence of enticement. See United States v. Tykarsky, 446 F.3d 458, 473 (3d Cir.2006) (“ ‘persuade,’ ‘induce,’ ‘entice,’ and ‘coerce’ ... have a plain and ordinary meaning that does not need further technical explanation”); United States v. Kaye, 451 F.Supp.2d 775, 783 (E.D.Va.2006) (convicting defendant of violating section 2422(b) based on plain meaning of “entice” without regard to the “more appealing” formulation from Rashkovski).

Because the jury charge permitted conviction on an invalid basis and because the risk that the jury grounded its verdict on that basis is not insubstantial, the defendant is entitled to a new trial.⁵

II. Evidentiary rulings

Since the case must be retried, we comment briefly on two evidentiary rulings, challenged on appeal, that are likely to arise on retrial.

(a) “Muscleteens” photos. The Appellant contends that it was error for the prosecution to introduce a group of photos of young girls displayed on an Internet website called “Muscleteens,”⁶ although the main objection is that once the photos were in evidence, the defense was unfairly prevented from showing that Joseph had not looked at them.

Joseph testified that he had joined numerous Internet groups concerned with bodybuilding, including one called “Mus-cleteens.” He indicated that this site “was made for young girls to show off their muscles” and acknowledged that a document describing the site stated that pictures could be posted of girls between 5 and 18. He said that “[t]he pictures change, some weekly, some monthly”; that when he joined the group, the picture on the front of the group’s site was an adult bodybuilder; that he normally looked at photos of 18-21-year-olds; and that when the site “started to change” he “didn’t go back and visit” anymore.

At the conclusion of the defense case, the prosecution indicated it wanted to call an FBI agent to introduce photos from the Muscleteens group for the purpose of rebutting Joseph’s testimony that the photos were predominately of 18- and 19-year-old girls. Defense counsel argued that the images were “remarkably prejudicial” and that there was nothing “to suggest to the jury that [Joseph] had looked ... at all this stuff.” The prosecutor responded, “That’s not what we’re suggesting,” and argued that the photographs should be admitted to rebut Joseph’s testimony that Muscleteens “had predominately pictures of 19- to 20-year-old girls.” The Judge overruled the defense objection and allowed the prosecution to introduce the pictures. Many of the photos appeared to be of girls under 18.

On cross-examination, defense counsel sought to ask the agent if there was any evidence that Joseph had looked at the Muscleteens photos that Watson had introduced. The Judge sustained the prosecutor’s objection and stated, “The subject matter is not to be explored.”

Having introduced the photos for the limited purpose of challenging Joseph’s credibility on one point and disclaimed any broader purpose, the prosecution then argued in summation that the photos were “devastating evidence of the defendant’s predisposition” to entice young girls.⁷ When defense counsel sought to respond in his summation that there was no evidence that Joseph had ever looked at the Muscleteens photos, the Court cut off the argument, stating that “[Watson] was not proffered for more than one issue, and that was all that the court will permit you to inquire about. So don’t go there.”

Although admission of the Muscle-teens photos was not erroneous, if they become relevant at a retrial, the defendant must be accorded an opportunity to present evidence that he did not view them.

(b) Expert Testimony. Also likely to recur at retrial is the issue of whether the defendant’s expert witness, Dr. James Herriot, should be permitted to testify about role-playing in the context of sexually explicit conversations on the Internet. Dr. Herriot is an Associate Professor of Clinical Sexuality at the Institute of Advanced Human Sexuality in San Francisco. Dr. Herriot proposed to testify about a distinct culture of the Internet in which one can become a “fantasy character[ ].” He would also explain the realities and motivations of online role-playing via chat-rooms and email. Dr. Herriot wrote his Ph.D. thesis on sexual communication on the Internet and had testified previously on the subject in federal court.⁸ The District Court sustained the Government’s objection to Dr. Herriot’s testimony, primarily on the ground of relevance.⁹

Although the admission or exclusion of expert testimony is committed to the discretion of the court, see United States v. DiDomenico, 985 F.2d 1159, 1163 (2d Cir.1993), we urge the District Court to give a more thorough consideration to the defendant’s claim to present Dr. Herriot’s testimony, in the event it is offered at retrial.

Dr. Herriot’s field of study and experience qualified him to offer relevant testimony. He has conducted a large number of interviews and studied chat-room conversations to understand sexual behavior on the Internet. Social science “research, theories and opinions cannot have the exactness of hard science methodologies,” Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1297 (8th Cir.1997), and “expert testimony need not be based on statistical analysis in order to be probative,” United States v. Long, 328 F.3d 655, 668 (D.C.Cir.2003). “[P]eer review, publication, potential error rate, etc.... are not applicable to this kind of testimony, whose reliability depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it.” United States v. Hankey, 203 F.3d 1160, 1169 (9th Cir.2000). In such cases, the place to “quibble with [an expert’s] academic training” is “on cross-examination” and goes to his “testimony’s weight ... not its admissibility.” McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1043 (2d Cir.1995).

To the extent that the District Court was concerned that Herriot’s testimony would rely on hearsay, that would not be a valid objection. See Fed.R.Evid. 703 (“If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.”). Social science experts commonly base their opinions on interviews.

Dr. Herriot’s opinions appear to be highly likely to assist the jury “to understand the evidence.” Fed.R.Evid. 702. Defense counsel represented that Dr. Herriot

will testify that ... [a] major component of the entertainment on the Internet is the rapid repartee, in addition to having imaginative fun. When engaging in Internet role-play, people love to experiment with their personas. Typically, people weave a bit of truth about themselves with a great deal of imagination and/or exaggeration. The Internet presents [a] competitive entertainment. ... Sexually explicit conversations tend to drive the chatting relationship, and are fueled by the anonymity of the created personas_Often, chatters become curious about who is “behind the screen.” There are many methods chatters use to “de-mask” the other participant: such as asking for a photograph, attempting a phone conversation, asking for information that can be independently verified or even attempting to meet in a public space.

Although some jurors may have familiarity with Internet messaging, it is unlikely that the average juror is familiar with the role-playing activity that Dr. Herriot was prepared to explain in the specific context of sexually oriented conversation in cyberspace. Many prospective jurors at Joseph’s trial acknowledged that they had never visited a chat-room, and professed no understanding of what occurs there. Obviously a jury would not have to accept Joseph’s claim that he planned only to meet “Julie” to learn who she was and that he lacked any intention to engage in sexual conduct with her, but the frequent occurrence of such “de-mask[ing]” of chat-room participants might provide support for his defense.

Numerous courts have upheld the admission of expert testimony to explain conduct not normally familiar to most jurors. See, e.g., United States v. Hayward, 359 F.3d 631, 635 (3d Cir.2004) (modus operandi of child molesters); United States v. Alzanki, 54 F.3d 994, 1005-06 (1st Cir.1995) (tendency of abuse victims to remain with their abusers); United States v. Azure, 801 F.2d 336, 340 (8th Cir.1986) (inability of children to distinguish truth from fantasy). Dr. Herriot’s testimony would seem to be similarly relevant.¹⁰

Conclusion

Primarily because the jury was permitted to convict on an invalid legal basis, the conviction may not stand. The conviction is vacated, and the case is remanded for a new trial.

1 . "A screen name is an appellation used to identify oneself in a chat room or when sending instant messages to another computer user. Although it can be the user's real name, it is more often a pseudonym.” United States v. Mitchell, 353 F.3d 552, 554 n. 3 (7th Cir.2003).

2 . A buddy list is a list of an instant messenger's "friends,” and shows a user which of his buddies are online when he is.

3 . The Government contends that Joseph did not object at trial to the alternative language, "or made the possibility of a sexual act with him more appealing/' and only wanted the language amplified to include the words "with him,” which had not been in the proposed charge. We disagree.

At the charge conference, defense counsel challenged the "more appealing” language four times. First, he made clear his objection to the "more appealing” language by pointing out that under the charge "if he just makes the idea of sex more appealing, he could be convicted of a crime which could be just pure cybersex without any intent to induce or persuade. And that is not covered by the statute.” The "more appealing” language, he argued, "covers a wide variety of noncriminal conduct." Next, when the trial judge read the portion of the charge from the prior trial, which included the "more appealing” language, defense counsel repeated his objection and additionally complained that the language did not require a finding of sexual conduct committed with the defendant. He stated: "That is their enticement charge, which, to me, your Honor, covers noncriminal conduct and lowers the burden of proof and doesn’t mention anything about having sex with him.” (emphasis added) Then, for a third time, he argued against the "more appealing” language by stating: "And that charge, as it is read right there[,] basically says, if you use a computer to have these kind[s] of conversations and you make sex more appealing, that is a crime, regardless whether it is with him, regardless of anything else." (emphasis added) By adding the emphasized words defense counsel made clear that even if the sexual conduct was stated to be more appealing "with him,” the "more appealing” language, as he had previously stated, remained unlawful. Finally, after the words "with him” were added, defense counsel made clear that this addition met one objection but did not meet his more basic point that the "more appealing” language provided an alternative basis for conviction without proving enticement. He stated, "[T]hat covers that one piece of it. The other piece is that I think the charge, as given, lowers the burden of proof and basically says that you don’t have to persuade or entice.”

The fact that we recite these four instances of objection to the erroneous "more appealing” language one at a time does not mean that we have viewed them "in isolation,” as our dissenting colleague suggests. See dissenting op. at 24. Indeed, their combined effect makes clear the force of defense counsel’s objection.

4 . Cybersex conversation constituting the transfer of "obscene matter” via the Internet to a person under 16 might well violate 18 U.S.C. § 1470, but Joseph was not charged with that offense.

5 . Our dissenting colleague, believing the error not to have been preserved, declines to find plain error because he views the evidence of guilt as "conclusive.” Dissenting op. at 29. Even if the error had not been preserved, the test for affirming, notwithstanding submission to a jury of an invalid legal basis for conviction, is not whether there is conclusive evidence of guilt under the valid basis. A verdict must be set aside where it " ‘is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.' ” Griffin, 502 U.S. at 52, 112 S.Ct. 466 (quoting Yates v. United States, 354 U.S. , 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957)); see United States v. Foley, 73 F.3d 484, 494 (2d Cir.1996) (conviction reversed for plain error where court "unable to determine” whether finding of guilt rested on valid or invalid basis); United States v. Scotti, 47 F.3d 1237, 1246 (2d Cir.1995) (order for new trial affirmed “[bjecause the jury may have reached its verdict” on invalid basis).

Our dissenting colleague relies on United States v. Skelly, 442 F.3d 94 (2d Cir.2006). The error in Shelly was the submission of an incomplete charge on a valid alternative legal theory, not, as here, the submission to the jury of an invalid alternate basis for conviction that did not state a criminal offense. Moreover, because the properly charged basis in Skelly "occupied the entirety of [the prosecution’s] opening statement and all but a few remarks in its closing statement,” id. at 99, we were able to conclude that it was "overwhelmingly likely that any reasonable juror would have convicted on the basis of the Government's primary theory.” Id. In the pending case, we cannot possibly reach that conclusion in light of the Government's summation urging conviction "solely” on the invalid basis.

6 . These photos had not been introduced at the first trial, which resulted in a mistrial.

7 . Having told the jury that the photos were "devastating evidence,” the Government is somewhat disingenuous in now arguing that any error in admitting them was harmless. The prosecutor also engaged in dubious conduct by inviting the jury to consider “why [defense counsel] got so excited about these photos.” Cf. United States v. Gonzalez, 488 F.2d 833, 836 (2d Cir.1973) (reversible error found where prosecutor's derogatory remarks about defense counsel's objection coupled with statements in summation prejudiced defendant).

8 . In a case similar to Joseph's, Dr. Herriot’s testimony was admitted, over the Government's objection, and the defendant was acquitted. See United States v. Wragg, 01 Cr. 6107, docket entries nos. 86, 88, 90, 97.

9 . An issue also arose as to the timeliness of the defense's proffer. To the extent that timeliness concerned the District Court, there may have been a misunderstanding of Fed. R.Crim.P. 16(b)(1)(C) since the Government made no request for disclosure of defense experts. In any event, a timeliness issue is not likely to arise at retrial.

10 . Our dissenting colleague sees little need for Dr. Herriot’s testimony because the role-playing explanation for the defendant’s conduct was adequately presented by the defendant’s own testimony. See dissenting op. at 31. However, when the Government implores a jury to find the defendant and his explanation not credible, we think the presentation of that explanation from a qualified expert would be significant, especially where the explanation is not one with which jurors are likely to have familiarity.