11th Circuit upholds conviction for “extraterritorial” production of child pornography
In U.S. v. Kapordelis, No. 07-14499 (N.D. Ga. June 1, 2009) Gregory C. Kapordelis, an anesthesiologist, was convicted in United States District Court for the Northern District of Georgia “for producing, receiving, and possessing child pornography in violation of 18 U.S.C. §§ 2251(a), 2252A(a)(2)(A), and 2252A(a)(5)(B).” He received a 420-month sentence. On appeal to the 11th Circuit, Kapordelis disputed the affidavit for the warrant that led to his arrest, the evidence that convicted him, and the “upward departure” of his sentence. The 11th Circuit affirmed the conviction and sentence.
The primary issues in this case are (1) whether evidence and testimony based on activity occurring in a foreign state can contribute to a conviction under Federal Rule of Evidence 404(b) and (2) whether a Georgia district court is the appropriate venue under 18 U.S.C. §§ 2251 for the prosecution of conduct occurring elsewhere (namely South Carolina).
In 2001 Kapordelis travelled to Greece with an 11-year old cousin and, during the trip, “exposed and took photographs of the boy . . .” In 2002 he travelled with a former surgical patient (age 14) to North and South Carolina and did the same. Though these actions were the material that formed the basis of the charge for the production of child pornography, it was his subsequent actions in 2004 that led to his arrest and conviction. Then in Russia, Kapordelis was investigated by the Moscow Immigration and Customs Office (ICE) for “sex tourism.” Several “juvenile victims” claimed he had drugged, molested, and photographed them.
ICE agents in the United States sought and received a warrant from a Georgia judge and searched his home uncovering two desktop computers with thousands of images of child pornography and a laptop which, among other similar images, contained those depicting his cousin and former patient. These discoveries led to an indictment which included three separate counts (for three separate years) of producing child pornography images, one for producing a child pornography video, two for receiving child pornography on two separate desktop computers, and one for possession.
With regard to the first and third counts of the production of child pornography, Kapordelis argued that, since the criminal acts there addressed occurred outside the jurisdiction of the federal government, (1) 18 U.S.C. §§ 2251 could not apply and (2) the Georgia district court could not be the appropriate venue for prosecution. Count 1 addressed conduct that occurred in Greece in 2001; Count 3 addressed conduct that occurred in South Carolina in July of 2002 (see above). In response to the “extraterritorial” appeal, the 11th Circuit held:
Congress intended for 18 U.S.C. § 2251(a), as in effect at the time of Kapordelis’ conduct, to apply regardless of whether the violation occurred on American soil or abroad, so long as the behavior has a sufficient nexus with this country . . .
[W]e conclude that Congress intended to reach extraterritorial acts, such as those of Kapordelis, that otherwise satisfy the statutory elements of 18 U.S.C. § 2251(a) if they were produced using equipment that had traveled into or out of the United States, if the visual depictions were imported or transmitted into the United States, or if the defendant believed or had reason to believe that they would be.
Therefore, since Kapordelis produced pornography using equipment that had traveled into and out of the United States—and since the depictions themselves were brought back to the U.S. from Greece, § 2251 is applicable.
Against Kapordelis’ argument that a Georgia district court was the improper venue for the prosecution of conduct that occurred in South Carolina and Greece, the 11th Circuit held:
While neither the transportation of an image allegedly produced in violation of § 2251(a) from another jurisdiction nor the possession of such an image in the Northern District of Georgia changes the location of the “use” or “production” elements from Greece or South Carolina, as Defendant argues, § 2251(a) ties the punishment for the “use” of a minor in and “production”of visual depictions of sexually explicit conduct to the transport of the visual depictions or the means of producing those visual depictions in interstate or foreign commerce. Thus, under 18 U.S.C. § 3237, the violation of § 2251(a) as alleged in Counts 1 and 3 is a “continuing offense.” Venue in the Northern District of Georgia into which the images (and the camera, in the case of Count 3) moved, was appropriate, and the decision of the district court shall be affirmed.
Further testimony was produced by witnesses that Kapordelis “solicited sex from boys in exchange for money while in Prague.” It is especially this evidence that was in dispute on appeal. Kapordelis argued, first of all, that his actions in the Czech Republic were not illegal—that, in fact, there was no evidence of a crime “that could be admitted under Federal Rule of Evidence 404(b). Further, he argued that such acts were irrelevant—and, therefore, prejudicial—to the charges of the production, possession, and receipt of child pornography. The 11th Circuit rejected both claims. On whether 404(b) is applicable:
Rule 404(b) straightforwardly provides for the admission of evidence of “other crimes, wrongs, or acts” and is not limited to criminal acts. Thus, evidence of “other acts,” whether unlawful in the jurisdiction where they take place or not, 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 than the defendant’s character.
On whether the admitted evidence was prejudicial:
Kapordelis asserted “identity” and “knowledge” defenses when he argued that someone else took the photos of his cousin and former patient found in his home and that someone else downloaded child pornography onto his computer or, alternatively, that it happened automatically. Evidence that Defendant traveled abroad in order to engage in sexual trysts with underage boys in Prague was, thus, admissible under 404(b) as “proof of . . . knowledge, identity, or absence of mistake or accident” and intent with regard to his travel with his cousin and his former patient during which sexually explicit images of the boys were created and with regard to his collection of pornographic images of children.
COMMENTS
