Attempted Enticement Under 18 U.S.C. § 2422(b) Turns on Defendant’s Intent and Substantial Step—Not the Minor’s Willingness—and Identity May Be Proven Circumstantially

1. Introduction

Defendant-Appellant David C. Lettieri appealed his jury conviction for attempting to persuade, induce, or entice a minor to engage in unlawful sexual activity, in violation of 18 U.S.C. § 2422(b), and his 240-month sentence. The prosecution arose from sexually explicit online and text communications in October 2020 between Lettieri (age 33) and A.B. (age 13), including discussion of an in-person meeting for sex. Lettieri traveled from Harpursville, New York to Bliss, New York for the arranged encounter, which was thwarted when A.B. disclosed the communications to her sister and the sister arranged to confront him at the meeting location. After arrest, Lettieri admitted the communications and the travel.

On appeal, Lettieri challenged: (i) the sufficiency of the evidence (identity and “attempt” elements) supporting the conviction, as raised in a post-trial Rule 29 motion for acquittal; (ii) denial of a Rule 33 motion for a new trial; and (iii) the substantive reasonableness of the within-Guidelines 240-month sentence given his physical and mental health conditions.

2. Summary of the Opinion

The Second Circuit affirmed in all respects. It held that the identity evidence—though lacking an in-court identification by the minor or other lay eyewitness at the park—was sufficient because identity may be established circumstantially, and the record linked Lettieri to the account and phone number used in the communications and to the person confronted at the meeting location.

On attempted enticement, the court rejected the argument that A.B.’s testimony that she never intended to have sex defeated the attempt theory. Section 2422(b) targets the defendant’s effort to persuade/entice; for attempt, the government needed to prove intent and a substantial step. The sexually explicit communications, solicitation of nude images, and travel to the meeting location sufficed.

The court also affirmed denial of a new trial under Rule 33 and held the 240-month within-Guidelines sentence was not substantively unreasonable despite Lettieri’s asserted medical and mental health issues, because the district court considered them under 18 U.S.C. § 3553(a) but reasonably found other factors outweighed them.

3. Analysis

3.1 Precedents Cited

• United States v. Persico, 645 F.3d 85 (2d Cir. 2011)
  Used to frame de novo review of a Rule 29 denial and the requirement to assess the evidence “as a whole,” not “piecemeal,” viewing it in the light most favorable to the government.
• United States v. Bramer, 956 F.3d 91 (2d Cir. 2020)
  Supplied the core sufficiency standard: affirm if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
• United States v. Eppolito, 543 F.3d 25 (2d Cir. 2008)
  Reinforced that the government need not exclude every hypothesis of innocence and that competing inferences are for the jury—important to Lettieri’s identity and authentication-themed arguments.
• United States v. Kwong, 14 F.3d 189 (2d Cir. 1994)
  Central to the identity holding: “no rule of law that requires identity to be established by an eyewitness”; identity may be inferred through circumstantial evidence. The panel used this to neutralize the lack of in-court identification by A.B. or other bystanders.
• United States v. Temple, 447 F.3d 130 (2d Cir. 2006)
  Provided the high threshold for acquittal: only where evidence of guilt is nonexistent or so meager no reasonable jury could convict. This framed the panel’s conclusion that the identity proof and § 2422(b) attempt proof easily cleared the bar.
• United States v. Pugh, 945 F.3d 9 (2d Cir. 2019)
  Supplied the attempt framework: intent plus a “substantial step.” The panel applied this directly to § 2422(b), emphasizing conduct demonstrating an effort to persuade/entice and movement toward completion.
• United States v. Gagliardi, 506 F.3d 140 (2d Cir. 2007)
  Cited for the plain-meaning approach to § 2422(b)’s terms (“attempt,” “persuade,” “entice”), reinforcing that the statute’s focus is on the defendant’s actions rather than on a victim’s internal willingness or ultimate outcome.
• United States v. Cook, 722 F.3d 477 (2d Cir. 2013)
  Set the four-part plain-error test. Because Lettieri did not preserve a specific insufficiency argument (premised on A.B.’s lack of intent), the court reviewed only for plain error, further insulating the conviction from reversal.
• United States v. McCourty, 562 F.3d 458 (2d Cir. 2009)
  Governed Rule 33 review: abuse of discretion; relief only in extraordinary circumstances where evidence heavily preponderates against the verdict or manifest injustice would result. The panel used this to affirm the denial of a new trial once it found the evidence sufficient.
• United States v. Thavaraja, 740 F.3d 253 (2d Cir. 2014)
  Stated the deferential abuse-of-discretion standard for substantive reasonableness review of sentences, anchoring the appellate restraint shown in affirming the 240-month term.
• United States v. Florez, 447 F.3d 145 (2d Cir. 2006)
  Emphasized that reasonableness review includes whether the sentencing court considered § 3553(a), and that a judge need not give any one factor dispositive weight—key to rejecting the argument that medical needs compelled a lower sentence.
• United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (en banc)
  Supplied the “range of permissible decisions” formulation. The panel applied it to conclude the within-Guidelines sentence, weighed against the offense and history, fell within permissible outcomes.
• United States v. Betts, 886 F.3d 198 (2d Cir. 2018)
  Reiterated that within-Guidelines sentences will rarely be outside the bounds of reasonableness, reinforcing affirmance of the 240-month term.
• United States v. Rigas, 583 F.3d 108 (2d Cir. 2009)
  Provided the “shockingly high/shockingly low” articulation for substantive unreasonableness. The panel used it to reject Lettieri’s request to reweigh mitigating factors.

3.2 Legal Reasoning

A. Sufficiency and Identity (Rule 29)

The panel treated Lettieri’s identity challenge as a classic sufficiency problem: whether, viewing all proof in the government’s favor, a rational jury could find beyond a reasonable doubt that Lettieri was the person who communicated with A.B. and appeared for the meeting. Relying on United States v. Kwong, the court rejected any requirement of an eyewitness in-court identification. Instead, it emphasized circumstantial linkages:

• FBI Special Agent Garver identified Lettieri in court as the person arrested and testified to Lettieri’s admissions (communications and travel).
• The sister’s boyfriend showed police a Facebook photograph of the man confronted; Garver confirmed the photograph depicted Lettieri.
• Records connected Lettieri to the Facebook account registered as “david.c.lettieri” and the T-Mobile number used in the explicit exchanges.

The court thus treated “identity” as an inference properly drawn from converging admissions, records, and corroborative evidence—precisely the inferential structure endorsed by Persico, Bramer, and Eppolito.

B. Attempted Enticement Under § 2422(b): Defendant-Centered Focus

Lettieri’s principal theory—that A.B.’s testimony that she never intended to have sex negated attempted enticement—was rejected as inconsistent with both attempt doctrine and § 2422(b)’s orientation. The panel’s key move was to re-center the inquiry on the defendant:

• Attempt elements: Under United States v. Pugh, the government must prove intent and a substantial step.
• What § 2422(b) targets: The statute criminalizes knowingly attempting to “persuade, induce, entice, or coerce” a minor; it focuses on the defendant’s efforts, not the victim’s subjective intent or whether persuasion succeeded.

Applying that framework, the panel held the record showed both intent and substantial step: overtly sexual and detailed communications, insistence on revealing clothing, solicitation of nude photographs, driving to Bliss to meet A.B., and a post-thwart message evidencing consciousness of the planned encounter (“thanks for the lying BS.”).

Procedurally, the court also noted that this specific argument was unpreserved and thus subject to plain-error review under United States v. Cook, providing an additional (though not exclusive) basis to reject reversal.

C. Rule 33: No “Manifest Injustice”

Having found the evidence sufficient, the panel found no extraordinary circumstance warranting a new trial. Under United States v. McCourty, Rule 33 relief is “sparingly” granted and requires that the verdict be against the weight of evidence or that letting it stand would produce manifest injustice. The panel credited the district court’s assessment that the evidence was “compelling” and that there was no real concern an innocent person was convicted.

D. Substantive Reasonableness: Medical/Mental Health Mitigation Considered, Not Controlling

Lettieri’s health conditions—enlarged spleen, pulmonary nodules, paralyzed vocal cords, spinal damage, and depression—were treated as mitigation presented to and acknowledged by the district court. But the Second Circuit, applying Thavaraja, Florez, and Cavera, emphasized appellate restraint: the district court has discretion to weigh § 3553(a) factors, and consideration does not mean determinative effect. In affirming, the panel pointed to the district court’s balancing against seriousness of the offense, history of sexual communications with minors, possession of child pornography, deterrence, and protection of the public. Under Betts and Rigas, the within-Guidelines 240-month sentence was not outside the range of permissible decisions.

3.3 Impact

Although nonprecedential, the order is a concise roadmap for how the Second Circuit is likely to treat recurring defenses in § 2422(b) attempt prosecutions:

• Victim unwillingness is not a defense to attempt: The decision underscores that a minor’s lack of intent to follow through does not defeat attempt where the defendant’s intent and substantial step are proven.
• Digital “enticement” proof can be cumulative: Explicit messages, requests for images, and travel can combine to satisfy “substantial step,” even if the meeting is disrupted before any physical contact.
• Identity can be built without an in-court eyewitness ID: Admissions, account records, phone records, and corroborative photo evidence can suffice, reducing the force of “no one pointed to me in court” arguments.
• Health conditions rarely overturn within-Guidelines terms on appeal: Where the sentencing court acknowledges medical issues and still reasonably prioritizes public protection and deterrence, substantive unreasonableness challenges face long odds.

4. Complex Concepts Simplified

• Rule 29 motion (judgment of acquittal): A post-trial request to set aside the verdict because the evidence was legally insufficient. Appellate review is highly deferential to the jury’s inferences.
• Authentication of social media evidence: Proof that the account/messages are what the proponent claims. This can be shown by records, identifiers, corroboration, and admissions; it need not depend on a single eyewitness.
• Attempt; “substantial step”: The defendant must intend the crime and take an action that strongly corroborates that intent—going beyond planning or fantasy into concrete movement toward commission (e.g., arranging a meeting and traveling to it).
• Plain error (Rule 52(b)): When an argument wasn’t properly raised below, the appellant must show a clear error that affected substantial rights and seriously harmed the integrity of proceedings.
• Rule 33 motion (new trial): A safety valve for extraordinary cases where the verdict is against the weight of evidence or would cause manifest injustice—not a routine second look at the jury’s decision.
• Substantive reasonableness: Whether the length of the sentence is within the range of permissible outcomes after considering 18 U.S.C. § 3553(a). Appellate courts rarely disturb within-Guidelines sentences absent extreme disproportionality.

5. Conclusion

United States v. Lettieri affirms a § 2422(b) attempt conviction and a 240-month within-Guidelines sentence by applying settled principles: identity may be proven through circumstantial evidence; attempt hinges on the defendant’s intent and substantial step rather than the minor’s willingness; Rule 33 relief is exceptional; and medical/mental health mitigation, even when credited, does not compel a lower sentence where the district court reasonably prioritizes offense seriousness and public protection. Even as a nonprecedential summary order, the decision is a clear indicator of how the Second Circuit evaluates sufficiency, attempt proof, and sentencing discretion in online-enticement prosecutions.