U.S. v. Kapordelis, No. 07-14499.

• Citation: 569 F.3d 1291
• Decision Date: 01 June 2009
• Docket Number: No. 07-14499.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gregory C. KAPORDELIS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

569 F.3d 1291

UNITED STATES of America, Plaintiff-Appellee, v. Gregory C. KAPORDELIS, Defendant-Appellant.

No. 07-14499.

United States Court of Appeals, Eleventh Circuit.

June 1, 2009.

Donald F. Samuel, Garland, Samuel & Loeb, P.C., Atlanta, GA, for Defendant-Appellant.

Robert C. McBurney, John Andrew Horn, Atlanta, GA, for U.S.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT and CARNES, Circuit Judges, and HOOD,^* District Judge.

HOOD, District Judge:

At the time of his arrest in 2004, Defendant-Appellant Gregory C. Kapordelis ("Defendant" or "Kapordelis") was an anesthesiologist who practiced medicine and had a home in Gainesville, Georgia. His sexual exploits with underage boys, however, took him far from Gainesville, across state lines and around the world. Evidence of his globe-spanning exploits, including the sexually explicit photographs of boys that Defendant made as souvenirs during his travels, and Kapordelis's large collection of child pornography collected from other sources ultimately led to Defendant's indictment and conviction 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). Defendant appeals his conviction and his 420-month sentence.

Defendant argues 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 United States Sentencing Guidelines (hereinafter, "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. § 3A1.1; (6) double counting the number of images of child pornography that he possessed because the district court imposed both a 2-level enhancement for the number of images that he possessed, pursuant to U.S.S.G. § 2G2.4(b)(2), and a 5-level enhancement for having more than 600 images, pursuant to § 2G2.4(b)(5)(D); (4) impermissibly granting an upward departure; (7) accepting a written victim impact statement during sentencing; and (8) imposing an unreasonable sentence.¹

We address each of these issues in turn and, ultimately, affirm Kapordelis's conviction and the sentence imposed by the district court.

I. Factual and Procedural Background

In June 2001, Kapordelis traveled to Greece with his cousin, who was then eleven-years-old. While in Greece, Defendant exposed and took photographs of the boy's genitalia and anus.²

In January 2002, Kapordelis met Lawrence Walker when the then fourteen-year-old had surgery and was treated by Defendant. Kapordelis later hired Walker to do chores on the weekends, and, in May of 2002, Kapordelis invited Walker on a trip to Kapordelis's condominium in Kure Beach, North Carolina. The night before they flew to North Carolina from Atlanta, Georgia, Kapordelis and Walker spent the night in a hotel near the airport, and Kapordelis made Walker several mixed drinks containing alcohol. Walker had no recollection of what happened after he started drinking, including anyone taking pictures of him standing in front of a mirror even though such pictures were later shown to him by Kapordelis. During this trip, as the boy lay nonresponsive on a bed, Defendant exposed the boy's genitalia and photographed them with a Sony Cybershot camera manufactured outside the State of Georgia.³

In July 2002, Kapordelis and Walker traveled together again, this time to Myrtle Beach, South Carolina, where they shared a room in a condominium occupied by Defendant's friend. During their stay, Defendant again exposed and photographed the boy's genitalia, although Walker did not remember anyone taking his photograph.⁴ The sexually explicit photographs of Walker were found on a computer seized from Defendant's home in Georgia.

In 2004, Kapordelis traveled to St. Petersburg, Russia. During his stay abroad, in late March 2004, the Immigration and Customs Enforcement ("ICE") office in Atlanta was informed by the ICE attaché in Moscow that three minors had complained to Russian authorities that they were molested by Kapordelis and that he took digital videos and pictures of his victims. According to reports from Russian law enforcement, several of the juvenile victims claimed that Defendant had given them pills that made them drowsy or unconscious.

Relying on this information, on April 12, 2004, an ICE agent sought a criminal complaint and express warrant, charging Defendant with traveling in foreign commerce for the purpose of having sex with a minor in violation of 18 U.S.C. § 2423, i.e., "sex tourism." That same day, Defendant returned to the United States. Alerted to the investigation into Defendant's activities but not yet armed with an arrest warrant, ICE agents at New York's John F. Kennedy International airport approached Defendant upon his arrival and asked to speak with him. During that interview, they received word from ICE-Atlanta that the magistrate judge had signed the complaint and issued the warrant. At that time, the New York ICE agents took Defendant into custody, seizing a laptop computer, several digital cameras, and an external hard drive from him which were transferred to ICE Agent Cory E. Brant in Atlanta.

Meanwhile, Agent Brant had also prepared and submitted applications for search warrants for Defendant's home and place of work, seeking court authority to look for evidence of sex tourism and child pornography in both locations, including on computers and other digital storage devices. The affidavit, used to obtain both warrants, was based exclusively on information from two reports from the ICE-Moscow office, interviews with Defendant's two co-workers, notes from telephone conversations with the ICE attaché, and various database checks as to utility service and addresses. On the evening of April 12, 2004, a federal magistrate judge signed both warrants.

During the search of Defendant's home, agents seized (1) a Hewlett-Packard desktop computer from the master bedroom, (2) a Sony Vaio laptop computer with a broken screen from inside a locked closet in the master bathroom, (3) a box imprinted with the name "Rohypnol," on the master bedroom floor, (4) a box that contained Versed, and (5) a Sony Vaio desktop computer in the living room.⁵ Forensic examination of one of the desktop computers showed that it contained thousands of images and videos of child pornography downloaded by Defendant.⁶ On the laptop computer with a broken screen, a forensic examiner found a second, larger cache of child pornography, including sexually explicit images of Defendant's eleven-year-old cousin and the fourteen-year-old former patient.⁷ Additionally, the laptop computer seized from Defendant at the airport in New York was found to contain pornographic images of children.⁸

Defendant was initially indicted in May 2004 on two counts of engaging in sex tourism in violation of 18 U.S.C. § 2423(c). As additional evidence was gathered and pre-trial motions were litigated, several superseding indictments were issued. In each instance, Defendant pleaded not guilty. The Fourth Superseding Indictment, in place at the time of trial, charged Defendant with (1) producing child pornography photographs, in violation of 18 U.S.C. § 2251(a), on or about June 28, 2001 ("Count 1"); (2) producing child pornography photographs, in violation of § 2251(a), on or about May 18, 2002 ("Count 2"); (3) producing child pornography photographs, in violation of § 2251(a), on or about July 2, 2002 ("Count 3"); (4) producing a child pornography video, in violation of § 2251(a), on or about December 12, 2001 ("Count 4"); (5) receiving child pornography, in violation of 18 U.S.C § 2252A(a)(2)(A), on a Hewlett-Packard desktop computer between March 2002 and April 2004 ("Count 5"); (6) receiving child pornography, in violation of § 2252A(a)(2)(A), on a Sony Vaio laptop computer between April and December 2002 ("Count 6"); and (7) possessing child pornography, in violation of § 2252A(a)(5)(B), on April 12, 2004 ("Count 7").

Through the course of the proceedings, the parties engaged in substantial motion practice. The earliest of these motions relevant to our inquiry was Defendant's January 28, 2005, motion to suppress the evidence seized from his home, his workplace, his person, and his on-line account as the result of search warrants issued and executed in April 2004, May 2004, and August 2004. In July 2005, at Defendant's request, the magistrate judge held a Franks hearing in order to explore Defendant's allegations about inaccuracies and omissions in the search warrant affidavit. At that hearing, Defendant sought to present evidence about alleged misrepresentations and omissions concerning the investigation in both Russia and the United States, but the trial court limited the focus of the hearing to events taking place in the United States. With regard to the alleged misrepresentations and omissions related to the investigation and information received from authorities in Russia, the magistrate judge concluded that no hearing was necessary as the affidavit, after accounting for Defendant's objections, nevertheless provided probable cause for the searches. After receiving the evidence presented at the hearing and following extensive briefing, the district court concluded that no Franks violation had occurred and that the affidavits provided sufficient probable cause to support the authorizing magistrate's decision to issue the warrant.

Defendant filed a motion in limine requesting, among other things, the exclusion of the testimony of Christopher Williams and Lester Andrews concerning Kapordelis's travels to Prague,...