United States v. Kapordelis, No. 07-14499 (11th Cir 2009)

Defendant was convicted for producing, receiving, and possessing child pornography in violation of 18 U.S.C. §2251(a), 2252A(2)(A), and 2252A(a)(5)(B). Defendant appealed his 420 month sentence and argued that the district court erred by: (1) denying his motion to dismiss Counts 1 and 3 of the Fourth Superseding Indictment; (2) denying his request for a Franks hearing and his motion to suppress evidence obtained under certain search warrants; (3) admitting testimony concerning his solicitation of sex from boys, under the age of eighteen, while in the Czech Republic under Federal Rule of Evidence 404(b); (4) applying the 2003 US Sentencing Guidelines instead of the 2002 Guidelines in imposing a sentence; (5) finding that one of his victims was vulnerable, pursuant to U.S.S.G. Section 3A1.1; (6) double counting the number of images of child pornography and imposing a 2-level enhancement pursuant to U.S.S.G. Section 2G2.4(b)(2), and a 5-level enhancement under Section 2G2.4(b)(5)(D); (7) accepting a written victim impact statement during sentencing; and (8) imposing an unreasonable sentence.

Defendant was initially indicted on two counts of engaging in sex tourism. Then additional evidence was gathered and several superseding indictments were issued. The Fourth Superseding Indictment charged him with producing child pornography photographs and video on four separate occasions in violation of 18 U.S.C. Section 2251(a), receiving child pornography on a desktop computer and then a laptop computer, Section 2252A(2)(A), and possessing child pornography, Section 2252A(a)(5)(B). The PSR assigned an offense level of 41 and recommended a Guidlelines range of 324-405 months.

The court found that the extraterritorial application of 18 USC Section 2251 was warranted as the statute is a part of a comprehensive statutory scheme to eradicate sexual exploitation of children, and that “punishing the creation of child pornography outside the United States that is actually, is intended to be, or may reasonably expected to be transported in interstate or foreign commerce is an important enforcement tool.” (referencing United States v. Thomas, 893 F.2d 1066, 1069 (9th Cir. 1990). The court then considered the violation of Section 2251(a) alleged in Counts 1 and 3 to be a continuing offense, affirming the district court.

As to the Franks hearing, the court found that the magistrate judge undertook the evaluation prescribed by Franks and considered the affidavit in support of the search warrant with the omissions and additions proposed by Defendant and therefore did not err in declining to hold a hearing. Regarding the probable cause issue of the search warrant, the court found that the necessary nexus existed between the facts surrounding Defendant’s overseas travels and the facts that suggested he met and engaged in sexual activity with young boys, thus establishing the likelihood that evidence would be found in his home.

As to Defendant’s argument that evidence of trysts with young boys was precluded under FRE 404(b), the court ruled that “whether unlawful in the jurisdiction where they take place or not,” evidence “is admissible under Rule 404(b) if there is sufficient proof to support a jury’s finding that the defendant committed the similar act and the other act is probative of a material issue other that the defendant’s character.” The probative value of this evidence was found to outweigh its prejudicial nature.

The district court varied upward to the statutory maximum, giving the Defendant the longest sentence possible, based on his long history of abuse, parity, and the need for incapacitation. The Eleventh Circuit ruled that while the use of the 2002 Guidelines would have resulted in fewer enhancements, the overall record indicates that the district court would have imposed the same 420 month sentence had it applied the 2002 Guidelines.

Next, the court found the application of the vulnerable victim enhancement under U.S.S.G. Section 3A1.1 was not error as the boys qualified as “vulnerable victims” because they were asleep or otherwise nonresponsive and thus unable to object or respond in any way when Defendant took pornographic pictures of them.

Defendant’s arguments regarding double counting and the victim impact statement were rejected and the court then addressed the upward variance and reasonableness of the sentence by showing that the district court did not abuse its discretion and did take into consideration the Section 3553(a) factors, finding that “the 420 month sentence (1) promoted respect for the law, (2) illustrated the seriousness of the offense, and (3) will serve as a deterrent. Based on the totality of the circumstances, including the Defendant’s history of abuse, number of images in his possession, and the need to protect society, the Eleventh Circuit court found compelling justification to support the upward variance and reasonableness of the Defendant’s sentence.