U.S. v. Riccardi
| Decision Date | 11 April 2003 |
| Docket Number | No. 02-20060-01-JWL.,02-20060-01-JWL. |
| Citation | 258 F.Supp.2d 1212 |
| Parties | UNITED STATES of America, Plaintiff, v. James RICCARDI, Defendant. |
| Court | U.S. District Court — District of Kansas |
Kim M. Berger, Office of U.S. Atty., Kansas City, KS, Paul R. Almanza, U.S. Dept. of Justice, Washington, DC, for Plaintiff.
James R. Wyrsch, Wyrsch Hobbs & Mirakian, PC, Kansas City, MO, John P. Ryan, Jr., Law Office of John P. Ryan, Jr., Grandview, MO, Scott C. Gyllenborg, Scott C. Gyllenborg, PA, Olathe, KS, for Defendant.
A jury found James Riccardi guilty of two counts of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and two counts of attempting to persuade, induce, entice, or coerce a minor to engage in illegal sex acts in violation of 18 U.S.C. § 2422(b). At the close of the government's evidence, Mr. Riccardi filed a motion for judgment of acquittal. The court took the motion under advisement and ultimately granted it in part and denied it in part. Specifically, the court granted a judgment of acquittal on Count IV of the indictment and denied the motion as to all other counts.
The matter is before the court on Mr. Riccardi's motion for judgment of acquittal and/or new trial pursuant to Rules 29(c), 33 and 34 of the Federal Rules of Criminal Procedure (Doc. 131). Mr. Riccardi raises numerous arguments in support of his motion, many of which the court has addressed previously. None of the matters raised warrants relief under the Federal Rules of Criminal Procedure and the court denies the motion in its entirety.
The court has set forth the factual events giving rise to this trial in its previous Memorandum & Orders (Docs.73, 74, 76). The following facts are of particular relevance to Mr. Riccardi's motion for judgment of acquittal and/or new trial.
On June 20, 2002, the government filed an indictment charging Mr. Riccardi with one count of possessing child pornography and two counts of attempting to persuade a minor to engage in an illegal sex act. On August 22, 2002, the government filed a superseding indictment. In Counts I and II of the superseding indictment, the government charged Mr. Riccardi with possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Count I was founded upon graphic image files seized from Mr. Riccardi's personal computer. Count II was founded upon Polaroid photographs seized from Mr. Riccardi's residence. Counts III through V charged Mr. Riccardi with attempting to persuade, induce, entice, and coerce a minor to engage in illegal sex acts in violation of 18 U.S.C. § 2422(b). Count III was based upon a telephone call Mr. Riccardi placed to a minor in Leawood, Kansas. Count IV was based upon a telephone call Mr. Riccardi placed to a minor in Leavenworth, Kansas. Count V was based upon a telephone call Mr. Riccardi placed to a minor in Higginsville, Missouri.
On August 6, 2002, Mr. Riccardi filed a motion to suppress the physical evidence obtained from the search of his residence and personal computer. The court held an evidentiary hearing on defendant's motion on September 13, and 16, 2002. The court denied the motion to suppress in an October 25, 2002 Memorandum and Order (Doc. 73). On September 24, 2002, defendant filed a renewed motion to dismiss the superseding indictment. The court denied the motion to dismiss in another October 25, 2002 Memorandum and Order (Doc. 76). On that same date, Mr. Riccardi also filed a motion to suppress several voice identifications. The court denied the motion to suppress the voice identifications in its third October 25, 2002 Memorandum and Order (Doc. 74).
The matter was tried to a jury from January 15, 2003 through January 21, 2003. At the close of the government's evidence, Mr. Riccardi moved for a judgment of acquittal. The court took that motion under advisement. After both parties rested, the court granted Mr. Riccardi's motion for judgment of acquittal as to Count IV of the superseding indictment and denied the motion as to the remaining four counts.
On January 22, 2003, the jury reached a verdict finding Mr. Riccardi guilty on Count I, Count II, Count III and Count V of the superseding indictment. Mr. Riccardi timely filed the present motion on January 29, 2003.
Mr. Riccardi moves for a judgment of acquittal, new trial and/or arrest of judgment. As to Mr. Riccardi's motion for judgment of acquittal, the court must uphold the jury's verdict of guilty if "`any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" United States v. Haber, 251 F.3d 881, 887 (10th Cir.2001) (quoting United States v. Schluneger, 184 F.3d 1154, 1158 (10th Cir.1999)). The court "must ask `only whether taking the evidence—both direct and circumstantial, together with the reasonable inferences to be drawn therefrom—in the light most favorable to the government, a reasonable jury could find [defendant] guilty beyond a reasonable doubt.'" United States v. Magleby, 241 F.3d 1306, 1311 (10th Cir.2001) (quoting United States v. Springfield, 196 F.3d 1180, 1184 (10th Cir.1999)). "Furthermore, 'the evidence necessary to support a verdict need not conclusively exclude every other reasonable hypothesis and need not negate all possibilities except guilt.'" Id. (quoting United States v. Wood, 207 F.3d 1222,1228 (10th Cir.2000)).
As to Mr. Riccardi's motion for a new trial, Federal Rule of Criminal Procedure 33 provides that "[t]he court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice." Fed.R.Crim.P. 33. "Amotion for new trial under Fed.R.Crim.P. 33 is not regarded with favor and should be granted only with great caution." United States v. Custodio, 141 F.3d 965, 966 (10th Cir.1998) (). The decision whether to grant a motion for new trial is committed to the sound discretion of the trial court. United States v. Stevens, 978 F.2d 565, 570 (10th Cir.1992).
As to Mr. Riccardi's request to arrest judgment, that request is governed by Rule 34 of the Federal Rules of Criminal Procedure, which provides in pertinent part: "The court on motion of a defendant shall arrest judgment if the indictment or information does not charge an offense or if the court was without jurisdiction of the offense charged." Fed.R.Crim.P. 34.
Mr. Riccardi divides his motion into two separate sections: (1) grounds for judgment of acquittal and/or new trial based on legal insufficiency of the evidence; and (2) additional grounds for motion for new trial and/or arrest of judgment. For purposes of convenience and clarity, the court will address the merits of Mr. Riccardi's motion in the same fashion.
Mr. Riccardi moves the court to enter an order granting a judgment of acquittal under Rule 29 or a new trial under Rule 33 on five independent legal grounds. The court will address each argument in turn.
Mr. Riccardi contends that the court should enter a judgment of acquittal concerning Count I because the evidence was insufficient, as a matter of law, to establish that the individuals depicted in the images seized from Mr. Riccardi's computer were under the age of 18 years. In short, Mr. Riccardi believes that expert testimony was required to establish the age of those individuals, which the government did not proffer.
"There is no requirement that expert testimony be presented in child pornography cases to establish the age of children in the pictures." United States v. Nelson, 38 Fed.Appx. 386, 392 (9th Cir. 2002). Instead, as the Fifth Circuit has explained, whether expert testimony is necessary depends upon the facts of any given case The threshold question-whether the age of a model in a child pornography prosecution can be determined by a lay jury without the assistance of expert testimony-must be determined on a case by case basis. As the government correctly points out, it is sometimes possible for the fact finder to decide the issue of age in a child pornography case without hearing any expert testimony. However, in other cases, the parties have been allowed to present conflicting expert testimony. In yet other cases, one party presents expert testimony, while the other does not. A case by case analysis will encounter some images in which the models are prepubescent children who are so obviously less than 18 years old that expert testimony is not necessary or helpful to the fact finder. On the other hand, some cases will be based on images of models of sufficient maturity that there is no need for expert testimony. However, in this case, in which the government must prove that a model, who is post-puberty but appears quite young, is less than eighteen years old, expert testimony may well be necessary to assist the trier of fact to understand the evidence or to determine a fact in issue.
United States v. Katz, 178 F.3d 368, 373 (5th Cir.1999) (internal citations omitted).
Here, the government moved to admit six separate computer images (seized from Mr. Riccardi's computer hard drive) of young men portrayed in sexually suggestive poses to support the charge in Count I. Rather than simply admitting all of the images, the court carefully analyzed each computer file to determine whether a lay jury could determine the age of the models without the assistance of an expert. In the end, the court found that only two of the six computer files contained images of models who were so obviously less than 18 years old that expert testimony was not necessary to assist the fact finder. As such, the court refused to admit the government's proposed exhibits 9-1, 9-2, 9-3 and 9-5, but permitted the government to introduce exhibits 9-4 and 9-6 because those two files contained images of...
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