U.S. v. Isabella, 17-1197

• Citation: 918 F.3d 816
• Decision Date: 12 March 2019
• Docket Number: No. 17-1197,17-1197
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rande Brian ISABELLA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

918 F.3d 816

UNITED STATES of America, Plaintiff-Appellee,

v.Rande Brian ISABELLA, Defendant-Appellant.

No. 17-1197

United States Court of Appeals, Tenth Circuit.

FILED March 12, 2019

Ronald Gainor, Longmont, Colorado, for Defendant-Appellant.

J. Bishop Grewell, Assistant U.S. Attorney, (Robert C. Troyer, United States Attorney with him on the brief) Denver, Colorado, for Plaintiff-Appellee.

Before HARTZ, MATHESON, and EID, Circuit Judges.

MATHESON, Circuit Judge.

Rande Isabella was convicted under 18 U.S.C. § 2422(b) of persuading and attempting to persuade S.F., a 14-year-old girl, to "engage ... in any sexual activity for which any person can be charged with a criminal offense" (Count 1) and under 18 U.S.C. § 2251(a) and (e) of attempting to persuade S.F. to produce child pornography (Count 2). On appeal, Mr. Isabella argues (1) the evidence was insufficient to sustain his convictions; (2) the district court made six improper evidentiary rulings; and (3) his convictions and sentences under §§ 2422(b) and 2251(a) and (e) violate the Double Jeopardy Clause. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.¹

I. BACKGROUND

A. Factual Background

In September 2013, Mr. Isabella began chatting with S.F., a 14-year-old high school student, through a mobile application called Minus. For the next three months, they communicated via cellular telephone, a messaging application called Kik, and e-mail. Mr. Isabella and S.F. developed a flirtatious relationship and called each other boyfriend and girlfriend. Mr. Isabella used pet names like "baby," "angel," and "princess" when communicating with S.F. They chatted about sex and sent each other pictures, including nude pictures of themselves. During the early period of their communications, they chatted nearly every day. When S.F.’s mother discovered the sexual chats and pictures, she contacted the police, who obtained a search warrant for Mr. Isabella’s home. The officers seized Mr. Isabella’s phone and extracted messages and images from it. After executing the search, authorities arrested Mr. Isabella.

B. The Indictment

A federal grand jury indicted Mr. Isabella on four counts, two concerning his interactions with S.F. (Counts 1 and 2), and two based on his interactions with an undercover officer posing as a minor (Counts 3 and 4). The charges were:

Count 1: Persuading and attempting to persuade S.F. to engage in sexual activity for which any person can be charged with a criminal offense, in violation of 18 U.S.C. § 2422(b).

Count 2: Attempting to produce child pornography, in violation of 18 U.S.C. § 2251(a) and (e), in his interactions with S.F.²

Count 3: Persuading and attempting to persuade an undercover officer posing as a minor to engage in sexual activity for which any person can be charged with a criminal offense, in violation of 18 U.S.C. § 2422(b).

Count 4: Attempting to produce child pornography, in violation of 18 U.S.C. § 2251(a) and (e), in his interactions with an undercover officer posing as a minor.

ROA, Vol. I at 13-15.

C. The Trial

Mr. Isabella’s trial took 11 days. We detail the relevant evidence from: (1) the Government’s case-in-chief; (2) the defense’s case, including Mr. Isabella’s testimony; and (3) the Government’s rebuttal.

1. The Government’s Case-in-Chief

The Government called 11 witnesses in its case-in-chief. Most relevant for this appeal was the testimony of S.F., P.F. (S.F.’s mother), and Homeland Security Special Agents Michael Thomas,³ Paul Anderson, and Vanessa Wright.

a. S.F.’s testimony⁴

S.F. testified at trial. She read the chats aloud and explained the nature of her relationship with Mr. Isabella. According to S.F., Mr. Isabella told her that he would send her a phone but she "must keep it hidden away until a designated time we set." ROA, Vol. VIII at 373. He also asked her if she could use Skype, Kik, and a variety of other messaging applications instead of text messages. He said, "We really should text on [Kik]. Safer. And you promise you will always protect me no matter what?" Id. at 347.

i. Age discussions

S.F. testified that, early in their communications, she told Mr. Isabella she was 14 years old. Mr. Isabella asked S.F. if she had a boyfriend and if she was okay with a "big older man." Id. at 284. He asked, "So in 4 years you are moving in with me then? ... You will be 18, right? We could take a birthday trip somewhere exotic." Id. at 288. Mr. Isabella also asked S.F. if she could drive yet. She said that she knew how to drive but was not legally able to do so. S.F. also explained that her mother restricted her phone use.

S.F. asked Mr. Isabella how old he was. He responded that he was "nearly 3 times [her] age" and then stated that he was "39 and 11 months."⁵ Id. at 285-86.

ii. Meeting discussions

Mr. Isabella lived in Ohio. S.F. lived in Colorado. The two never met prior to trial, but they discussed meeting. On one occasion, Mr. Isabella said, "Haha. Come see me and we will party for dayzzz!!" Id. at 343. On another occasion, he said, "Grab a girlfriend and come visit me in florida this winter." Id. at 305. Mr. Isabella said he was in a band and suggested he might visit her in Colorado while on tour. He asked, "So if i got a hotel near you would you have a way to get to me?" Id. at 344. He followed up, "So when i come to you, you will stay with me?" S.F. responded, "I'll try." Id. at 345.

iii. Sexual discussions

S.F. testified that if she had stayed with Mr. Isabella in the hotel, she thought they would have had sex. At one point, Mr. Isabella informed S.F. that he was aroused and S.F. responded, "U said u wish I could see what u do to me so show me." Id. at 301. They proceeded to discuss having sex and penis size. Id. at 301-03. On a separate occasion, after sending S.F. a picture of his penis, Mr. Isabella discussed performing oral sex acts with her. Id. at 310. The conversations were at times even more graphic. See id. at 351-53 (testimony of Mr. Isabella detailing an imagined sexual encounter).

iv. Picture discussions and exchanges

When Mr. Isabella sent S.F. the picture of his penis, he did so after stating that he was aroused. He said, "Ask me for a pic. Be specific." Id. at 307. When S.F. asked for a photo, he stated, "Pic of what? Say it." Id. When S.F. responded, "I don't know, surprise me," and "I don't know lol," Mr. Isabella followed up, "Age thing. You must ask me for it. ... Or else you don't want it. Thats okay." Id. Eventually S.F. said, "send a dic pic." Id. at 308. He replied, "That’s my baby girl," and sent her a picture of his penis. Id. at 308-10.

Mr. Isabella also asked S.F. for pictures. He requested pictures of "[her] pretty face," and she sent them. Id. at 293-94. He requested more photos, and stated they were "So beautiful!!!" Id. at 294. At one point, S.F. said she was "in the shower." Id. at 298. Mr. Isabella responded, "Pic now!! Haha." Id. He repeated the request: "Pic now!! (Again). Hahaaa!!" Id. After she responded without a picture, Mr. Isabella said, "I will bet you are gorgeous right now. Just send simple mirror pic." Id. S.F. sent him a picture of a fogged-up mirror. Mr. Isabella responded, "Any mirrors not fogged up?" and "Now I just want to see you a hundred times more." Id. at 299. After a separate shower reference, Mr. Isabella responded similarly: "Take a pic right now in mirror exactly as you are and send me now." Id. at 293. In another conversation, he asked for more pictures and stated he was thinking of her "ripping off clothes and running around [the] room naked." Id. at 323-24.

Eventually, S.F. sent Mr. Isabella sexual photos. Mr. Isabella stated, "And wait a min. I sent you a pic of my manhood. And what have you sent meeeeee? Hehehehh." Id. at 312. S.F. then sent Mr. Isabella a picture of her naked body from the neck down (the "torso pic").⁶ She testified that she did not take the picture for Mr. Isabella and that he had nothing to do with her taking it. The circumstances surrounding the picture’s production are discussed below.

Mr. Isabella responded to the picture, "That is youuuuu???" and "Sooooo nice!! Got one with face?"Id. at 314. Then, "Reaaaally want a somewhat naughty pic with your face. Hahaaa. You doin homework?" Id. On a separate occasion, S.F. also sent a picture of herself in her bra and underwear. Id. at 362-63. She sent that same picture on multiple occasions.

v. Cross-examination

On cross-examination, S.F. admitted that she lied to investigators about her interactions with Mr. Isabella. She initially told investigators that Mr. Isabella (1) had presented himself to her as a 17-year-old boy named Kyle, (2) had threatened to hurt her sister if she did not send him pictures, and (3) had made her take the photos. At trial, defense counsel asked, "And you had just said that it wasn't true. What part wasn't true?" Id. at 1965. S.F. responded, "That he lied about his age. That he lied about his name. That he was making me do it. Everything that I did and I said was all by my own choice. He never made me do anything." Id. S.F. admitted that she "still ha[d] feelings for [Mr. Isabella]" and stated that she "want[ed] to send pictures to Mr. Isabella because of the way he made [her] feel." Id. at 1967.⁷

b. Special Agent Vanessa Wright’s testimony

Vanessa Wright, a special agent with the Department of Homeland Security, investigated Mr. Isabella as an undercover agent ("UCA"). She posed as a 15-year-old girl and initiated internet communications with Mr. Isabella in December 2013. The communications quickly turned sexual. At one point, Mr. Isabella asked her if she would stay in a hotel with him and suggested he could meet the UCA in Florida. He also asked for pictures and video from the UCA on multiple occasions, including a video of her stripping and pictures of her vagina.

c. Special Agent Paul Anderson’s testimony

Paul Anderson, a Homeland Security Investigations Special Agent, conducted a forensic search of S.F.’s phone. He explained how the phone’s call log works and presented the...