U.S. v. Ellis

Citation935 F.2d 385
Decision Date04 December 1990
Docket NumberNo. 90-1698,90-1698
Parties33 Fed. R. Evid. Serv. 196 UNITED STATES of America, Appellee, v. Edward B. ELLIS, a/k/a Rocco Ellis, Defendant, Appellant. . Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Morris M. Goldings with whom Mahoney, Hawkes & Goldings was on brief, for defendant, appellant.

Stephen A. Higginson, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., was on brief, for the U.S.

Before BREYER, Chief Judge, CAMPBELL and CYR, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Edward B. Ellis appeals from his May 14, 1990 conviction, after a jury trial in the United States District Court for the District of Massachusetts, of three counts of knowingly transporting "ED," an individual under the age of eighteen years, in interstate commerce between Massachusetts and Florida (twice) and Massachusetts and Vermont (once) to engage in illegal sexual activity, in violation of 18 U.S.C. Sec. 2423. 1 Ellis was sentenced to twenty five years in prison. We affirm.

FACTS

The following appeared at trial:

1. Catherine DeCouto met Edward "Rocco" Ellis in 1985, while Ellis was serving a state prison sentence. They conceived a daughter, "LM," who was born in June of 1986. After his release from jail, Ellis moved in with Catherine, who was also the mother of ED, who was then five years old. They originally lived in North Adams, Massachusetts, and they later moved to New Ashford, Massachusetts.

2. ED testified that shortly after Ellis came to live with them, he began to abuse her sexually. (ED was seven years old at the time.) She said that the first time occurred during an overnight trip to Boston, where Ellis traveled to pick up teddy bears for Catherine's gift shop located in North Adams. ED described how Ellis used to put his fingers inside her vagina, and that he told her never to tell, or he would hurt her mother, her grandmother, or take her baby sister, LM, from her. She described how the assaults occurred frequently in various places where they had lived, and that on one occasion Ellis had assaulted her in Catherine's shop in the Mohawk Theater, which Ellis formerly owned.

3. ED testified that Ellis forced her to perform fellatio upon him, and that he performed cunnilingus upon her. ED said that on at least one occasion, she refused to perform oral sex on Ellis, so he spanked her until her buttocks reddened. She stated that Ellis then photographed her in that condition, and she identified a photograph which had been found during a search of the defendant's home which corroborates that assault. On another occasion (his birthday), when she resisted being touched inside her vagina, she remembered him telling her that "it was half my fault," and that no one would believe her if she told on him. ED also remembered him putting not only his fingers in her vagina, but also his toes and his tongue; and he forced her to touch his penis. When asked how often he did these things to her, ED said "a lot," and "sometimes he would do it just once a week or more than once a week." She said it happened at their home in the Berkshires, at the beach in Provincetown, in Boston, in Ellis' truck-camper, and at her mother's North Adams ice cream shop. ED also identified numerous photographs of her sister, LM, unclothed, several of which were taken in Florida by the defendant.

4. Both ED and her mother, Catherine, testified Ellis drove them to Florida on two separate occasions in his truck-camper. Catherine confirmed that the two trips to Florida were at Christmas of 1987 and in late February or early March of 1988. The first trip to Florida was a family vacation. ED testified that she sat in the front seat of the truck-camper, being forced to touch Ellis' penis and having him touch her vagina, yet being too frightened to tell her mother who was often sleeping with LM in the camper attachment. Once in Florida, Ellis continued to sexually abuse her. A few months later, in February or March 1988, the entire family again went to Florida, this time for the purpose of moving, since Ellis and Catherine were going to operate a restaurant that Ellis had purchased. Ellis remained in Florida for about a week or so, then returned to Massachusetts to run another business. The rest of the family stayed in Florida until returning to Massachusetts in May. ED said that the assaults in Florida consisted of oral sex, fondling, and the insertion of the defendant's fingers and toes into her vagina, and that they continued throughout the duration of their Florida trips.

5. ED also testified that after returning from the second Florida trip some time in 1988, the defendant drove her in the truck-camper from the Berkshires to Vermont, where she remembered seeing a "Welcome to Vermont" road sign. She said they stopped at a picnic area, and the defendant took her into the back of the truck-camper, where he sexually assaulted and threatened her.

6. Catherine DeCouto testified that ED appeared reluctant to be left alone with Ellis, but that she mistakenly believed that ED was being disobedient. She said Ellis routinely belittled ED, calling her "pig," "moron," "slut" and that he once said to ED, "I hope you get AIDS and die!" ED said that she was afraid of the defendant and that Ellis often called her names, including "fatso," "stupid" and "whore," and that he was "mean to me." ED said that the last time Ellis hurt her was on his birthday in April of 1989, and that she threatened to tell her mother about the abuse at that time. Ellis said, "Go ahead, I'll just say that you started it." She also testified that she observed Ellis insert his fingers inside LM's vagina on one occasion.

7. Ronald Romano, who has been a friend of the defendant since 1973 and is LM's godfather, said that Ellis once forced ED to dance for him after she, at first, refused, and that the child had a look of terror on her face as she reluctantly complied with Ellis' demands. He also testified that ED was treated differently from LM by Ellis, that ED was called names by the defendant, and that at times he was afraid of Ellis.

8. Robert Andrews, a friend of the defendant since their joint incarceration at MCI-Cedar Junction, testified that on or about November 11, 1989, Ellis wrote to him from jail, admitting that there were two incidents with ED, but that she had initiated them and that these incidents were part of the child's "growing process."

9. Catherine DeCouto and Sean Sullivan testified that the abuse came to light in June of 1989 when ED, while brushing sand from her shorts during play on a Provincetown beach, was overheard by Sullivan saying suddenly, "No, no, don't go up there! I'm too young." When Sean told Catherine about the strange remark, Catherine confronted ED who admitted that Ellis had touched her and went on to describe what had happened. ED first insisted no, but then tearfully, with her hands on her stomach, and becoming sick, said that Ellis had molested her. During the conversation, both mother and daughter were sick, and Catherine estimated that the full outburst and admission "came out over the course of a couple of hours."

10. Catherine DeCouto testified that at first she could not believe it, because she loved the defendant and trusted him. She said that about one week later ED told her mother not to touch her feet because "he does that." Catherine testified that she then realized that what ED had told her was true, since Ellis used to hold Catherine's feet during intercourse and perform intercourse upon her with his toes.

11. Shortly after ED's disclosure to her mother, Catherine reported the abuse to the Massachusetts Department of Social Services ("DSS") and to law enforcement authorities. Marilyn Reedy, a DSS social worker, testified that she interviewed ED and LM in July of 1989, and that LM demonstrated touching of her vaginal area by the defendant using anatomical dolls. Reedy was not allowed to testify as to what ED told her as to Ellis' actions.

12. Edward Ellis was arrested on August 25, 1989 by special agents of the FBI and the Massachusetts State Police. On September 6, 1989, the federal grand jury returned a three-count indictment charging him with having violated 18 U.S.C. Sec. 2423. 2 The three counts were as follows:

Count one--that in or about December of 1987, in Massachusetts and Florida, he knowingly transported ED, an individual under the age of eighteen, between Massachusetts and Florida, with intent that ED engage in sexual activity for which Ellis could be charged with a criminal offense, specifically "Rape and Abuse of a Child under Sixteen" in violation of Mass.Gen.Laws ch. 265, Sec. 23; "Capital Sexual Battery of a Child under Twelve" in violation of Florida Statute Sec. 794.011(2); and "Lewd, Lascivious and Indecent Assault upon a Child" in violation of Florida Statute Sec. 800.04, all in violation of Title 18, United States Code, Section 2423.

Count two--an identical charge for transportation in or about February of 1988; and

Count three--an identical charge for transportation between Massachusetts and Vermont, involving alleged violations of Vermont as well as Massachusetts law, in or about March through in or about October of 1988.

13. On May 14, 1990, Edward Ellis was found guilty by the jury on all three counts.

14. During sentencing, the government urged the court to depart upwards to the maximum statutory sentence of 360 months. As grounds to do so, the government cited Ellis' abuse of trust, his criminal record, his obstruction of justice, the psychological injury to ED, and the extreme nature of Ellis' conduct. Ellis' counsel, in response, noted the damage already inflicted on the family, and urged the court to adopt the lowest permissible punishment under the Guidelines, 188 months. Speaking on his own behalf, Ellis promised love to his family and criticized his prosecution. Finding that Ellis' conduct had been "heinous, cruel, brutal and...

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