In U.S. v. Kapordelis, No. 07-14499 (June 1, 2009), the Court affirmed the convictions and 420-month sentence of an anesthesiologist charged with producing, receiving and possessing child pornography.
The Court rejected Kapordelis' argument that some of his photos were taken in Greece and the statute should not apply extraterritorially. The Court noted that Kapordelis transported his pictures from Greece into the United States and this nexus sufficed. The Court also rejected Kapordelis’ challenge to venue, pointing out that his crime was a "continuing offense," and the possession continued in Georgia.
The Court rejected the argument that evidence of Kapordelis sexual activities with young boys in the Czech Republic should not have been admitted under Fed. R. Evid. 404(b) because this activity was legal in that country. The Court noted that 404(b) contemplates the admission of other "wrongs," and noted that this evidence was sufficiently probative of Kapordelis’ knowledge of the photographs to be admitted.
Turning to the sentence, the Court rejected the argument that the district court erred in relying on the 2002 version of the Guidelines, instead of the 2003 version. The Court noted that since the district court granted an upward variance to 420-months, any error was harmless. For the same reason, the Court rejected Kapordelis’ double-counting challenge to certain guideline enhancements.
Finally, the Court upheld the sentence as reasonable, noting the large number of images Kapordelis possessed. The Court recognized that the district court failed to articulate why a 262-327 months guideline sentence would be disproportionately low, but found that the sentence was reasonable in relation to the other § 3553(a) factors.
