U.S. v. Riccardi

• Decision Date: 19 April 2005
• Docket Number: No. 03-3132.,03-3132.
• Citation: 405 F.3d 852
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James RICCARDI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

405 F.3d 852

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

No. 03-3132.

United States Court of Appeals, Tenth Circuit.

April 19, 2005.

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James R. Wyrsch, Wyrsch Hobbs & Mirakian, P.C. (J. Justin Johnston, Wyrsch Hobbs & Mirakian, P.C., with him on the briefs), Kansas City, MO, for Defendant-Appellant.

Kim M. Berger, Assistant United States Attorney (Eric F. Melgren, United States Attorney, District of Kansas, Paul R. Almanza, Trial Attorney, United States Department of Justice, Washington, D.C., Nancy Landis Caplinger, Assistant United States Attorney, Topeka, Kansas, with her on the briefs), Kansas City, KS, for Plaintiff-Appellee.

Before MURPHY, ANDERSON and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

After an investigation of several harassing phone calls of a sexual nature to teenage boys in Missouri and Kansas, police identified Mr. James Riccardi as the caller. In a search of his home and later his computer, police found photographs and other images of child pornography, some of them taken by Mr. Riccardi of teenage boys whom he had paid or enticed into visiting his home and posing for his camera. Two of these boys — now adults — were located, and testified at trial.

Mr. Riccardi was tried before a jury and convicted on January 23, 2003, of two counts of possession of child pornography and two counts of use of an instrumentality of interstate commerce to entice a minor to engage in a prohibited sex act, in violation of 18 U.S.C. § 2252(a)(4)(B) and 18 U.S.C. § 2422(b) respectively. Count One involved pornographic images found on Mr. Riccardi's computer hard drive. Count Two involved pornographic photographs Mr. Riccardi took with his Polaroid camera. Counts Three and Five involved two teenage boys whom he enticed to his home to pose for pictures and engage in other illicit conduct. The district court granted a motion for acquittal on Count Four, an additional count of enticing a minor. Mr. Riccardi was sentenced to a total term of 262 months.

On appeal, Mr. Riccardi raises four arguments, which address each count of his conviction, and he contends that he was not sentenced in accordance with the law. He first argues that his conviction on Count One should be reversed because the district court allowed evidence from the search of his computer hard drive, which he contends violated the Fourth Amendment for two independent reasons: (1) there was no probable cause to justify the search and seizure of the hard drive; and (2) the warrant and its execution did not comply with Tenth Circuit precedent concerning the particularity required for warrants involving searches of computer hard drives. He also argues that the officers did not execute the warrant in good faith, and thus that the good faith exception to the exclusionary rule should not apply.

Second, Mr. Riccardi argues that the district court should have dismissed Count Two because it involved intrastate non-economic activity and therefore is not subject to Congress' legislative authority under the Commerce Clause.

Third, Mr. Riccardi argues that there was insufficient evidence to sustain his conviction on Count One because there was not enough evidence to show that the individuals depicted in the images were under 18 years of age.

Fourth, he contends that Counts Three and Five are invalid because the prosecution put on no evidence to show that Mr. Riccardi used the telephone "to promote a performance" of a minor for sexual purposes.

Finally, he argues that the district court improperly interpreted the United States Sentencing Guidelines ("Guidelines" or "U.S.S.G.") because it deemed conduct 16 to 18 years prior to his conviction to be relevant conduct under U.S.S.G. § 1B1.3 and increased his base offense level accordingly.

After oral argument in this case, Mr. Riccardi moved to supplement his brief with an argument that the sentencing procedure was constitutionally defective under Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The motion was granted. The Court invited further supplemental briefing after the Supreme Court's decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

The Facts

We summarize the facts of the case only insofar as they provide necessary background to the relevant legal issues. On at least four occasions in early 2002, Mr. Riccardi placed telephone calls to teenage boys in which he portrayed himself as a coach from the University of Missouri and offered the boys athletic scholarships. During the course of the conversations, he spoke of discipline and asked the boys prurient questions about the nature of corporal punishment they had received. In one instance, he asked whether the boy would be willing to "do anything" to make the team, including performing oral sex on the coach. During some of the calls, he asked the boys (whom he had earlier instructed to go to a secluded place), to drop their pants and spank or whip themselves as he listened over the phone. In one case, the teenager complied. Another one of Mr. Riccardi's targets pretended to spank himself, thinking it was one of his friends calling as a joke.

Several of the calls were reported to the Higginsville, Missouri Police Department, where they were investigated by Detective Heidi Morgan. Detective Morgan contacted the University of Missouri and discovered that no one affiliated with the university had made the calls. She also learned that the university had received approximately 80 complaints about similar calls. Following reporting protocols and contacting other law enforcement departments in the area, Detective Morgan obtained the name and address of a suspect, Riccardi. She also contacted Detective John Dickey of the Leawood, Kansas Police Department, who was investigating a similar call Mr. Riccardi made to a boy in Leawood. After further investigation in coordination with Detective Dickey, Detective Morgan located Mr. Riccardi's place of employment and found a phone number for him.

Acting on the information she had thus far, Detective Morgan left messages for Mr. Riccardi at his place of employment and at a phone number she had discovered for him through an internet phone directory. Subsequently, she received and tape recorded a conversation with a caller who identified himself as James Riccardi. Detective Morgan played the tape of this conversation for the three teenage boys in Higginsville who had received the offensive calls. Each listened to the tape separately, and each identified the voice on the tape as the voice of the caller.

During approximately the same period, Detective Dickey confirmed Mr. Riccardi's residential address in Leawood, Kansas. He arranged for a search of trash left at the curbside in front of Mr. Riccardi's residence. This search uncovered prepaid calling cards issued by Qwest Communications. After subpoenaing records from Qwest, Detective Dickey learned that calls were made using these cards to persons who complained of receiving similar harassing telephone calls.

On May 6, 2002, Detective Dickey submitted an affidavit to a judge in Johnson County, Kansas, in support of an application for a search warrant for Mr. Riccardi's residence. The affidavit set forth the reasons for Detective Dickey's belief that probable cause existed to believe that Mr. Riccardi had made obscene or harassing phone calls to boys in several states. The affidavit described, among other things, the four calls in which Mr. Riccardi had portrayed himself as a University of Missouri athletic official. The affidavit also stated that Detective Morgan had learned that in 1998, an investigation of a similar call placed to a boy in Sweet Springs, Missouri, resulted in Mr. Riccardi being discovered talking on a pay phone with a copy of a local newspaper covering a Sweet Springs boys sports team in his car. Finally, the affidavit summarized the results of the investigation into the Qwest prepaid calling cards found in Mr. Riccardi's trash.

The judge authorized a search of Mr. Riccardi's residence for:

All records of telephone calls with juveniles including: Telephone records, telephone bills, directories and listings, telephone calling cards[;] Print outs of directory listings or telephone search results[;] ... Pictures, videos or other depictions of juveniles ... [; and] Notes, journals, or logs of calls or contact with juveniles.

Officer Dickey and other Leawood police officers, Detective Morgan, and David Finch of the Missouri Attorney General's High Tech Crimes Unit executed the warrant at 2:50 p.m. on May 6, 2002. They seized items including: (1) "approximately 300 Polaroid photographs of young men in various positions, nude and clothed"; (2) notes of telephone calls to young men, including high school yearbooks with handwritten telephone numbers next to student pictures; (3) miscellaneous papers with names of individuals, most of which had additional information that appeared to include phone numbers, grade levels, height, weight, and sport positions played; (4) a Polaroid camera; (5) three plays that depicted a homosexual lifestyle; (6) a Kinko's receipt, apparently signed by Mr. Riccardi, for Kinko's copying of four Polaroid photographs to computer disks; and (7) papers with notes of screen names such as Buff4U and KCBuffT near a computer in the home. The Kinko's receipt was in an envelope with four non-pornographic photographs of a young white male, who appeared to be a "young teenager" naked from the waist up. The receipt indicated that Mr. Riccardi paid $22.88 to have those pictures scanned to a computer disk. The investigating officers also noted that Mr. Riccardi had a personal computer.

Later that same day, Detective Dickey submitted another affidavit and application for a warrant to search and seize the computer. The affidavit described the photographs seized from Mr....