U.S. v. Gallenardo

• Decision Date: 28 August 2009
• Docket Number: No. 07-30414.,07-30414.
• Citation: 579 F.3d 1076
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William James GALLENARDO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

579 F.3d 1076

UNITED STATES of America, Plaintiff-Appellee, v. William James GALLENARDO, Defendant-Appellant.

No. 07-30414.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 2, 2009.

Filed August 28, 2009.

Wendy Holton, Helena, MT, for appellant William Gallenardo.

Marcia Hurd, Assistant U.S. Attorney, Billings, MT, for appellee United States.

Appeal from the United States District Court for the District of Montana, Donald W. Molloy, Chief District Judge, Presiding. D.C. No. CR-07-00004-DWM.

Before: RICHARD A. PAEZ and JOHNNIE B. RAWLINSON, Circuit Judges, and BRUCE S. JENKINS,^* District Judge.

RAWLINSON, Circuit Judge:

Appellant William Gallenardo (Gallenardo) was convicted of sexual exploitation of a child and possession of child pornography. Gallenardo contends that the district court erred in denying his motion to dismiss the indictment because his intrastate possession of child pornography cannot satisfy the requisite interstate commerce nexus for federal jurisdiction.

Additionally, Gallenardo challenges the district court's denial of his motion for a mistrial. Specifically, Gallenardo asserts that the district court committed reversible error when it allowed the jury to hear an audiotape that mentioned other sexual allegations against Gallenardo.

Gallenardo also contends that the district court erred in imposing a mandatory life sentence pursuant to 18 U.S.C. § 3559(e). Gallenardo posits that 18 U.S.C. § 3559(e) was inapplicable, as 18 U.S.C. § 2251(e) provides the appropriate recidivist penalty. Gallenardo maintains that his prior Montana conviction for sexual assault cannot serve as a predicate offense for the purpose of applying 18 U.S.C. § 3559(e) because it did not involve interstate conduct.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the district court's judgment.

I. BACKGROUND

Gallenardo was indicted for sexual exploitation of a child in violation of 18 U.S.C. § 2251(a); possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5), (b); and a related forfeiture count.

The district court denied Gallenardo's motion to dismiss the indictment, rejecting Gallenardo's argument that his intrastate possession of child pornography was insufficient to establish federal jurisdiction. United States v. Gallenardo, 540 F.Supp.2d 1172, 1176 (D.Mont.2007).

Trial Testimony and Gallenardo's Motion for a Mistrial

Linda Elaine Jollo (Jollo), Gallenardo's ex-wife, testified concerning Gallenardo's interaction with L.P., a male juvenile under the age of eighteen who was "a laborer in[Gallenardo's] construction business." Jollo stated that in May, 2005, she was searching for evidence of Gallenardo's suspected infidelity. She searched Gallenardo's pickup truck and found Gallenardo's briefcase. Inside the briefcase, Jollo found a videotape and four camera disks. She viewed one of the disks and saw "[p]ictures of [L.P.] with his clothes off." Some of these images were "sexually explicit." Jollo viewed another disk and found similar images of L.P. Jollo recognized the background in the images as the basement of her home.

When Jollo informed Gallenardo that she had found the pictures, Gallenardo got upset. He went into the house, and retrieved two manila envelopes that "were the same LX-2 [label] that was on the disks."

Gallenardo demanded that Jollo give him the disks she had. When Jollo told Gallenardo that she did not have the disks with her, Gallenardo "started to threaten [Jollo], but he didn't complete the threat." Gallenardo burned the disks and videotape in a burn barrel.

L.P. testified that Gallenardo lived in L.P.'s uncle's apartment, which was located above L.P.'s residence. L.P. estimated that he was fourteen when he started to visit Gallenardo at the house Gallenardo later shared with Linda, and when he started working for Gallenardo. L.P. was "[p]robably 16 or 15" when Gallenardo "was taking the video or taking the pictures." According to L.P., the pictures were "naked pictures of [L.P.] and of [Gallenardo]." L.P. admitted that when confronted by Jollo, he lied when he told her that Gallenardo had not touched him.

L.P. stated that Gallenardo tricked him into taking the pictures by promising that "this would be ... the only and ... the last time it ever happened." The pictures were taken in Gallenardo's "basement, lower bedrooms." Gallenardo asked L.P. to touch himself and to shave his private parts.

L.P. also related that Gallenardo took "[n]aked pictures" of L.P. while L.P. was "sitting on [Gallenardo's] motorcycle." According to L.P., he did not feel "like [he] had a choice in the pictures." Gallenardo would touch L.P. "[o]n [his] penis" while taking the pictures. Gallenardo also asked L.P. to touch him. Gallenardo videotaped L.P. removing his clothing, and L.P. testified that "the touching [also] occur[red] on the videotape."

Detective Larsen testified that she "receiv[ed] information alleging that William Gallenardo had taken sexually explicit pictures of [L.P.], who was under the age of 18." According to Detective Larsen, L.P. was sixteen years old at the time she interviewed him. Detective Larsen subsequently arranged for a recorded telephone call to be made to Gallenardo. During Detective Larsen's testimony, the recorded telephone call was played.¹ In the conversation, L.P. stated that he was scared because "Kelly's trying to—to get me to talk to the police.... Nathan said something. I don't know what he said though." Gallenardo responded:

Thanks for calling, it's really important that you know this. Now, Kelly has went off the deep end emotionally, psychotically and she has got Nathan and her little son to start to change their stories, which means that—you know— she's just influenced them. And with that influence, she—they say that I brushed his pants or tried to put my hands down his pants. Now, that's absolutely not true and so she's been talking to the police and the police say they have to build a case and find people to say that I molested them and the best they can get Nathan to say is that I might have maybe tried to put my hands down his pants. And slowly, over the course of the last year, it's been changing, his story has been giving way to like pressure. Now, that's called-that [sic] wrong in the law; it's wrong physically, and stuff like that. Now, they finally after a year, they're—they're starting to make it so that her little son—oh, I forget the littlest one's name—is starting to (INAUDIBLE) and go yeah, maybe he—oh, hi mom, they said I—I had both boys sitting on my lap telling them sex stories that they can't really describe what the sex stories [sic] and so they're—they just got the kids going in circles and getting crazy. And all you got to do is say, Kelly, nothing happened and leave it at that.

When L.P. asked about the pictures, Gallenardo stated "[t]here's nothing about the pictures, they're gone, they're burned. There's no nothing. It's a bluff. And they're doing that, adults will do that, they'll try to manipulate and control you."

Gallenardo instructed L.P. to tell the police "that Kelly asked you to come because, uh, she thinks something went on and you keep telling her, you told your dad, you told her brother, and you'll tell them again, nothing happened." Gallenardo also told L.P. that "you're [sic] dad'll be home too and—uh, just talk to your dad and just say, wow, Kelly's really pressured me and wants me to go to the police or something and I'm going like what for, and she's saying William's done all these things and I—I don't know that he's done anything .... Well, okay, just keep with that. It's either that or I spend 25 years in prison." Gallenardo again reassured L.P. that the pictures "were burned in the burn barrel."

After the audiotape was played, the district court instructed the jury:

I wanted to tell the jury, the initial part of that telephone conversation, I want you to disregard whatever suggestions there were about somebody else. We're not here to pry or even know if there are any other allegations involved. So disregard the very first part of that tape.

After the jury was dismissed, the district court informed the parties that it would not have allowed the playing of the first portion of the audiotape had it known about the references to the other allegations against Gallenardo. Gallenardo's counsel moved for a mistrial, citing his "failure to object to that audio coming in." The district court held that the audiotape was not prejudicial enough to warrant a mistrial, and denied Gallenardo's motion.²

The district court further instructed the jury:

Now, you heard an audiotape of a conversation between the defendant and LP. In reaching a verdict in this case, you may only consider the portions of that conversation relating to the defendant's interactions with LP. You must disregard any suggestion or allegation contained on that tape that relates to the defendant's possible or alleged interaction with others.

The jury found Gallenardo guilty of sexual exploitation of a child and possession of child pornography. The district court sentenced Gallenardo to a mandatory life sentence pursuant to 18 U.S.C. § 3559(e) due to Gallenardo's prior Montana conviction for sexual assault. Gallenardo filed a timely notice of appeal.

II. STANDARDS OF REVIEW

"We review a district court's denial of a motion to dismiss an indictment on constitutional grounds de novo." United States v. McCalla, 545 F.3d 750, 753 (9th Cir.2008) (citation omitted). "A district court's denial of a motion for mistrial is reviewed for abuse of discretion." United States v. Hagege, 437 F.3d 943, 958-59 (9th Cir.2006) (citation omitted).

"Although we generally review the district court's evidentiary rulings for abuse of discretion, we review the district court's ruling for plain error when the defendant did not object during trial on the basis he asserts on appeal." United States v. Banks, 514 F.3d 959,...