United States v. Kapordelis

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 1, 2009
No. 07-14499 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 04-00249-CR-CAP-1-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GREGORY C. KAPORDELIS,

Defendant-Appellant.

________________________

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

(June 1, 2009)

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

*
Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
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

2
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

1
In subsequent editions of the Sentencing Guidelines, § 2G2.4 was deleted by
consolidation with § 2G2.2, effective November 1, 2004.
2
These images are the subject of Count 1 of the Fourth Superseding Indictment, which
was in place at the time of Kapordelis’s trial.

3
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

3
These images are the subject of Count 2 of the Fourth Superseding Indictment.
4
These images are the subject of Count 3 of the Fourth Superseding Indictment.

4
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,

5
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

5
Randell Alexander, a pediatrician, testified at trial that Versed is a relaxant that,
depending on the dose, can either make a person sleepy or unconscious. Rohypnol, which
commonly is called a date rape drug, causes people to become semi-conscious and not to
remember what happened while they are under the influence of the drug. Alexander testified
that it is not appropriate to have either Versed or Rohypnol in an individual’s home, as they have
no home use.
6
The images found on this computer are the subject of Count 5 of the Fourth
Superseding Indictment.

6
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

7
The images found on this computer are the subject of Counts 1-3 and 6 of the Fourth
Superseding Indictment.
8
The images found on this computer are the subject of Count 7 of the Fourth
Superseding Indictment.

7
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

8
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, Czech Republic, which was to be

offered by the United States under Federal Rule of Evidence 404(b). That motion

was denied by the district court on June 7, 2006. Additionally, Defendant filed a

Motion to Dismiss Counts of the Fourth Superseding Indictment on November 20,

2006, which was denied by the district court on March 19, 2007.

Defendant’s trial began on May 7, 2007. In addition to evidence of his

travels with his young cousin and Walker, recounted briefly above, the prosecution

presented evidence of the contents of Defendant’s computer harddrives. James

Fottrell, assistant to the chief for computer forensics and investigations in the

Department of Justice’s Criminal Division’s Child Exploitation and Obscenity

Section, testified that he found approximately 1,400 images and over 100 videos

that he classified as child pornography on the desktop computer found in

Kapordelis’s home. Fottrell found over 9,000 images and 300 videos that he

classified as child pornography on the laptop found in the locked closet of

Kapordelis’s bedroom, which he believed was last used in February 2003, as well

9
as internet searches for the age of consent laws in Croatia, Peru, Singapore, and

Spain. Fottrell also found 180 images of child pornography on the laptop

computer seized from Kapordelis at the airport in New York.

On all three computers seized from Defendant, Fottrell found a text file in

which Kapordelis appears to memorialize some of his travels to Prague and wrote

about his experience with an 18-year-old named Patrick and how he hoped to meet

a 17-year-old boy named Lucas the following night. In another text file,

Kapordelis described how he spent three days in Prague with a 16-year-old boy

named Peter having oral and anal sex. In yet another text file, Kapordelis wrote

more introspectively about his sexual interest in boys: “Why am I attracted to

young guys? Why does my relationship have to be a controlling one? Why is it

difficult for me to enjoy a young guy sexually unless I am in total control?”

Over Defendant’s objection, the United States also presented evidence

regarding Defendant’s periodic travel to Prague, Czech Republic, to engage the

services of young male prostitutes.9 Christopher Williams testified that Kapordelis

told Williams that the reason that Kapordelis went to Prague was to have sex with

9
Defendant renewed his objection to this testimony, raised earlier in his motion in
limine, during the trial. The Court overruled his objection, concluding that the testimony was
admissible as evidence of similar acts which demonstrated identity of action, intent to commit
the crime charged, and absence of accident or mistake. Having found the evidence to be
presented to be relevant to something other than defendant’s character, the Court also concluded
that the probative value of the evidence was not outweighed by its potentially prejudicial nature.

10
young men, and the first time that Williams visited Kapordelis in Prague,

Kapordelis brought 2 young men, who were 17 or 18 years old, back to the hotel

room, where Williams saw Kapordelis give them money. On Williams’s second

trip to Prague, Kapordelis took Williams to a mall, where Kapordelis liked to find

young men, and to a bar, where people went to pick up young male prostitutes. At

the bar, Williams observed Kapordelis appear to negotiate with a pimp for a “kid,”

whom Kapordelis took back to Kapordelis’s apartment. Kapordelis later informed

Williams that the person was 14 years old.

Lester Andrews testified that Kapordelis had stated that he was interested in,

and fantasized about, young boys. Kapordelis told Andrews that he liked having

sex with young boys in Prague, where it was legal, and, when Andrews visited

Kapordelis in Prague, he took Andrews to the same bar where Kapordelis had

taken Williams. Andrews observed Kapordelis putting large sums of money in

front of a boy until the boy agreed to leave with him.10

Additionally, Deno Contos, Kapordelis’s second cousin, testified that, at the

age of sixteen, he moved in with Kapordelis. Kapordelis was then in medical

10
These trysts were not Kapordelis’s only connection to the Czech Republic. Eva
Racanska, an obstetrician in the Czech Republic, who was by all accounts in St. Petersburg with
Kapordelis just prior to his April 2004 arrest, testified that she brought Kapordelis one package
of Rohypnol from the Czech Republic, where it is a legally prescribed drug, during one of her
trips to the United States. Apparently, Racanska knew Kapordelis well and identified
Kapordelis’s hand as the one pulling down his young cousin’s pants in one of the sexually
explicit photographs found on Kapordelis’s computer.

11
school and provided Contos with alcohol and pills. Contos eventually discovered a

video of Kapordelis having sex with him although he had no memory of the video

being made. The video cassette bore a sticker that stated, in Kapordelis’s

handwriting, to destroy it if he died. Contos observed five or six other videos that

had the same instruction to destroy if Kapordelis died. Contos moved back home

when Kapordelis graduated from medical school, although, as Contos was nearing

his eighteenth birthday, he moved back in with Kapordelis, who resumed drugging

and molesting him. Contos also testified that, years later, in April 2004, he

received a frantic telephone call from Kapordelis, who gave Contos the security

codes that would permit him to enter Defendant’s home and a locked bedroom

closet. Kapordelis asked Contos to destroy Kapordelis’s homemade videos.

Contos refused to destroy them, but agreed to hide them. Contos did not tell

anyone about the videotape of himself until Kapordelis was arrested, some 20

years after he discovered it.

Defendant’s three week trial concluded on May 24, 2007, when a jury found

him guilty on Counts 1-3 and 5-7. Kapordelis was acquitted of the allegations in

Count 4.

Following Defendant’s conviction, a Presentence Investigative Report

(hereinafter, “PSR”) was prepared for the trial court. The PSR assigned Kapordelis

12
an offense level of 37 for Count 1, which included a 2-level enhancement for a

vulnerable victim, pursuant to U.S.S.G. § 3A1.1, and a 2-level enhancement for

use of a special skill, pursuant to U.S.S.G. § 3B1.3. The PSR grouped Counts 5

through 7, and calculated the offense level as 30, which included a 2-level

enhancement for possession of 10 or more films containing child pornography,

pursuant to U.S.S.G. § 2G2.4(b)(2), and a 5-level enhancement for possessing over

600 images of child pornography, pursuant to § 2G2.4(b)(5)(D). The PSR

ultimately assigned Kapordelis a combined total offense level of 41, which

included a 4-level multiple count adjustment, with a criminal history category of I,

and a recommended Guidelines range of 324-405 months’ imprisonment.

Defendant lodged extensive objections to the PSR, challenging the facts

listed in nearly every paragraph of the portion of the PSR dedicated to offense

conduct, objecting to the use of the 2003 edition of the Guidelines to prepare the

PSR instead of the 2002 edition, and challenged the Guidelines calculations

themselves. Defendant lodged objections to the application of the vulnerable

victim enhancement under § 3A1.1 for each of the production counts. Defendant

also asked the trial court to reject the PSR’s recommendation that he be assessed

two levels for possessing ten or more items containing child pornography under §

2G2.4(b)(2) and five levels for possessing 600 or more images of child

13
pornography under § 2G2.4(b)(5)(D).

Ultimately, the district court overruled Kapordelis’s objections to the PSR,

determining that the PSR properly relied upon the 2003 edition of the Guidelines

and that it was proper to apply both the enhancements under § 2G2.4(b)(2) and §

2G2.4(b)(5)(D). The district court determined Defendant’s final offense level to be

39, with a Criminal History Category of 1. As a result, Defendant’s Guidelines

range was 262-327 months.

The United States, however, filed a motion for an upward departure or

variance in which it argued that, under 18 U.S.C. § 3553(a), the court should

sentence Kapordelis to life imprisonment based on the specifics of his actions, his

history of abuse, and his lack of remorse. Naturally, Kapordelis proposed that the

district court sentence him below the recommended guideline range. During a

two-day sentencing hearing, the district court heard and considered testimony from

some of Kapordelis’s friends and family, who testified variously that Defendant

was a man of character who would help anyone; supportive; trustworthy with

children; the architect of a fine anesthesia practice; a pillar of his family, who went

beyond what a normal family member does to make others feel loved and

comforted; a loving, good person who did many good deeds for his family and

others throughout the world; a great example who provided encouragement;

14
charitable; generous with his time and money; someone who shared his life with

everyone and took every opportunity with the witness’ children to teach them

something; and was someone who would benefit society in the future.

The district court also heard testimony from Fottrell and Kapordelis’s

brother-in-law concerning used computers provided by Kapordelis to family

members which contained images of child pornography. Fottrell testified that, on

one of these old computers, he found a total of 33 hours worth of pornographic

videos, and each video contained approximately 24 frames per second. Fottrell

also identified, on another old computer given to Contos, child pornography news

group activity associated with Microsoft’s Outlook Express and a user identity, the

“authentication identity,” which was password protected.11 Fottrell was also able

to determine that 8,000 of the files on Kapordelis’s computers were gathered by

news groups and uploaded at a very high rate per second.

Kapordelis was hardly penitent during the sentencing proceeding. During

his allocution, he accused the United States of falsely accusing him of molesting

11
News groups allow people to communicate over the internet, and once a person signs
up for a news group, articles and images related to the subject matter of the group are sent to the
person’s computer. Under the authentication identity, Fottrell found subscriptions to the
following news groups: (1) alt.binaries.pictures boys; (2) alt.binaries.pictures boys bondage; (3)
alt.binaries.pictures.erotica child male; (4) alt.binaries.pictures.erotica teen male anal; (5)
alt.binaries.pictures.erotica teen male masturbation; (6) alt.binaries.pictures.sunshine boys; (7)
alt.binaries.pictures.youth wrestling; (8) alt.binaries.pictures asparagus; (9) alt.fan.John; (10)
alt.fan.prettyboy; and (11) alt.svenshouse. Fottrell testified that, in his experience investigating
child pornography, asparagus was a euphemism for a boy’s penis.

15
children in Russia and maintained that the Assistant U.S. Attorneys (“AUSAs”)

who prosecuted the case were liars. He called the prosecution arrogant and

complained that the AUSA had taken on the persona of a dictator, comparing the

AUSA to Hitler. While Kapordelis apologized to anyone affected by his actions,

he stressed that he was not referring to sexual molestation victims, as he insisted

that he had never sexually molested anyone.

In announcing the sentence, the district court acknowledged the advisory

nature of the Guidelines and, citing United States v. Booker, 543 U.S. 220 (2005),

stated that it would consider the factors set forth in 18 U.S.C. § 3553(a). The judge

then stated that he would “grant the government’s motion for an upward departure

on the grounds of the number of images, the long history of the abuse of the

defendant,” as well as the court’s concerns about parity, citing cases in the ten

years previous in which the sentencing judge had sentenced defendants to ten years

incarceration simply for crossing state lines on one occasion to have “sexual

adventures with children.” The judge also considered the need for the “defendant’s

incapacitation” and found that a greater sentence than available under the

Guidelines was necessary because Kapordelis’s “history of predatory behavior

show[ed] there is little chance for rehabilitation”.

Finally, on September 18, 2007, the district court sentenced Defendant to a

16
total term of 420 months: 240 months for each production count, to run

concurrently; 180 months for each receipt count, to run concurrently with each

other but consecutively to the production counts; and 120 months for the

possession count, to run concurrently with the receipt counts.

II. Discussion

A. Motion to Dismiss Indictment

Defendant was charged in Counts 1 and 3 of the Fourth Superseding

Indictment with violating 18 U.S.C. § 2251(a). As effective from October 30,

1998, to April 29, 2003, 18 U.S.C. § 2251(a) provided that:

Any person who employs, uses, persuades, induces,
entices, or coerces any minor to engage in, . . . or who
transports any minor in interstate or foreign commerce . .
. with the intent that such minor engage in, any sexually
explicit conduct for the purpose of producing any visual
depiction of such conduct, shall be punished as provided
under subsection (d), if such person knows or has reason
to know that such visual depiction will be transported in
interstate or foreign commerce or mailed, if that visual
depiction was produced using materials that have been
mailed, shipped, or transported in interstate or foreign
commerce by any means, including by computer, or if
such visual depiction has actually been transported in
interstate or foreign commerce or mailed.

Count 1 of the Fourth Superseding Indictment alleged that:

On or about June 28, 2001, the defendant, GREGORY C.
KAPORDELIS, did use a person under the age of
eighteen to engage in sexually explicit conduct,

17
 specifically, the lascivious exhibition of the genitals and
the pubic area of said minor, for the purpose of producing
visual depictions of such conduct, specifically digital
photographs, such visual depictions have been
transported from Greece to Georgia, specifically, the
Northern District of Georgia, all in violation of Title 18,
United States Code, Section 2251(a).

Count 3 alleged that:

On or about July 5, 2002, the defendant, GREGORY C.
KAPORDELIS, did use a person under the age of
eighteen to engage in sexually explicit conduct,
specifically, the lascivious exhibition of the genitals and
the pubic area of said minor, for the purpose of producing
visual depictions of such conduct, specifically digital
photographs, by means of a Sony camera, said camera
having been mailed, transported and shipped in interstate
and foreign commerce, and said visual depictions having
been transported from South Carolina to Georgia,
specifically, the Northern District of Georgia, all in
violation of Title 18, United States Code, Section
2251(a).

Defendant argues that the district court erred when it denied his motion to

dismiss Count 1 because 18 U.S.C. § 2251 does not authorize prosecution of

conduct by an American national that occurred wholly in a foreign country. He

next argues that the district court should have dismissed Counts 1 and 3 because

venue in the Northern District of Georgia was improper as the conduct specifically

outlawed by 18 U.S.C. § 2251(a), the “use” of a minor in and the production of

images of sexually explicit conduct, was alleged to have occurred in either Greece

18
or South Carolina.12

Denials of motions to dismiss concerning questions of law are reviewed de

novo. United States v. Gupta, 463 F.3d 1182, 1191 (11th Cir. 2006). Having

considered the law and the arguments, we affirm the decision of the district court

for the reasons which follow.

1. Application of 18 U.S.C. § 2251 to Extraterritorial Acts

Defendant argues that 18 U.S.C. § 2251(a) does not authorize prosecution

for prohibited acts by an American national that occur in a foreign country, such as

Greece, and the application of § 2251(a) in the case of Count 1 constitutes an

improper extraterritorial application of the law.13 Having carefully considered the

12
Defendant also argues that the district court erred when it declined to dismiss Counts 1
and 3 as neither alleged that he produced the image with the intent that it be transported across
any border to the Northern District of Georgia or, in the case of the image produced in Greece,
even to the United States. This argument deserves little attention as the behavior prohibited by §
2251(a) is punishable “if such person knows or has reason to know that such visual depiction
will be transported in interstate or foreign commerce or mailed,” “if such visual depiction has
actually been transported in interstate or foreign commerce or mailed,” or “if that visual
depiction was produced using materials that have been mailed, shipped, or transported in
interstate or foreign commerce by any means, including by computer.” Counts 1 and 3 clearly
allege that the images were actually transported from Greece to Georgia and from South
Carolina to Georgia, respectively. Further, Count 3 alleges that the depictions were created
using a camera which had been mailed, shipped, or transported in interstate commerce.
Accordingly, the conduct alleged in Counts 1 and 3 of the Fourth Superseding Indictment would
constitute a violation of § 2251(a), and the district court did not err when it declined to dismiss
Counts 1 and 3 on these grounds.
13
Defendant does not argue that Congress was without power to enact 18 U.S.C. §
2251(a) or that the application of § 2251(a) would violate due process. See United States v.
Pinto-Mejia, 720 F.2d 248, 259 (2d Cir. 1983) (Congress may apply its penal statutes to
extraterritorial acts unless application would violate due process). Thus, whether 18 U.S.C. §
2251(a) applies to Kapordelis’s acts abroad is a question of statutory interpretation for this

19
statute itself, however, we are of the opinion that Congress intended for 18 U.S.C. §

2251(a), as in effect at the time of Kapordelis' conduct, to apply regardless of whether the

violation occurred on American soil or abroad, so long as the behavior has a sufficient

nexus with this country. In this case, Kapordelis transported his pictures from Greece

into the United States. That is clearly sufficient.

Section 2251(a) does not explicitly prohibit conduct outside of the United

States, but neither is its application limited to instances where the wrongdoer

commits the entire violation within the territory of the United States.14 Rather, the

statute is part of a comprehensive statutory scheme to eradicate sexual exploitation

of children, see 18 U.S.C. §§ 2241-2257, in which Congress has outlawed the

transportation, mailing, and receipt of child pornography. See United States v.

Thomas, 893 F.2d 1066, 1069 (9th Cir. 1990). “Punishing the creation of child

pornography outside the United States that is actually, is intended to be, or may

Court. See Blackmer v. United States, 284 U.S. 421, 437 (1932); United States v. Plummer, 221
F.3d 1298, 1304 (11th Cir. 2000) (“Whether Congress has in fact exercised [its authority to
create law with extraterritorial application] . . . is a matter of statutory construction.”).
14
Defendant also argues that the 2003 enactment of the PROTECT ACT, including that
portion codified at 18 U.S.C. § 2251(c), demonstrates that § 2251(a) did not reach and that
Congress did not intend it to reach extraterritorial sexually explicit conduct with children prior to
its passage. While § 2251(c) addresses the act of using a child outside the United States for the
purpose of producing images of child pornography which the defendant intends to or does
transport to the United States, the passage of that statute did not retroactively restrict the scope of
the application of the preexisting portion of the statute, § 2251(a). See Radzanower v. Touche
Ross & Co., 426 U.S. 148, 154 (1976) (implied repeals of one statute through enactment of
another are not favored) (citations omitted).

20
reasonably be expected to be transported in interstate or foreign commerce is an

important enforcement tool.” Id. Thus, we conclude that Congress intended to reach

extraterritorial acts, such as those of Kapordelis, that otherwise satisfy the statutory

elements of 18 U.S.C. § 2251(a) if they were produced using equipment that had traveled

into or out of the United States, if the visual depictions were imported or transmitted into

the United States, or if the defendant believed or had reason to believe that they would

be. The district court did not err when it denied Defendant’s motion to dismiss

Count 1 on these grounds, and its decision shall be affirmed.

2. Venue

Defendant next contends that the district court should have dismissed Counts

1 and 3 because the alleged “use” of a minor in and the production of images of

sexually explicit conduct, the actions specifically outlawed by 18 U.S.C. § 2251(a),

occurred in either Greece or South Carolina, not in the Northern District of

Georgia. He argues that the indictment alleges only that he possessed sexually

explicit images of a minor in Georgia, which conduct, by itself, is not prohibited by

§ 2251(a). As such, he theorizes that venue in the Northern District of Georgia

was inappropriate and that the district court erred when it declined to dismiss those

counts of the Fourth Superseding Indictment for inappropriate venue. We

disagree.

No doubt, a criminal defendant has a right to have his case adjudicated in

21
the appropriate venue, i.e., in the state and district where the crime or crimes with

which he has been charged were committed. U.S. C ONST. art. III, § 2, cl. 3 (the

“Trial of all Crimes ... shall be held in the State where the said Crimes shall have

been committed”); U.S. C ONST. amend. VI (trial of criminal defendants shall be

“by an impartial jury of the State and district wherein the crime shall have been

committed”); see also F ED. R. C RIM. P. 18 (“prosecution shall be had in a district in

which the offense was committed”). “‘[T]he locus delicti must be determined from

the nature of the crime alleged and the location of the act or acts constituting it.’”

United States v. Cabrales, 524 U.S. 1, 6 (1998) (quoting United States v.

Anderson, 328 U.S. 699, 703 (1996)). Where a crime “involv[es] the use of the

mails, transportation in interstate or foreign commerce, or the importation of an

object or person into the United States,” the offense is a “continuing crime,” i.e.,

one which begins in one district and is completed in another. 18 U.S.C. § 3237(a);

United States v. Rodriquez-Moreno, 526 U.S. 275, 279-81 (1999). In such

instances, venue is proper in any district in which the offense was started,

continued, or completed. Id.

Section 2251(a) includes among its required elements that (1) that the

defendant must know or have reason to know that “such visual depiction will be

transported in interstate or foreign commerce or mailed,” (2) that the “visual

22
depiction was produced using materials that have been mailed, shipped, or

transported in interstate or foreign commerce,” or (3) that the “visual depiction has

actually been transported in interstate or foreign commerce or mailed.” Count 1

alleges that the digital photographs were transported from Greece to Georgia and

Count 3 alleges that the digital photographs were transported from South Carolina

to Georgia and created using a camera that had been “mailed, transported and

shipped in interstate and foreign commerce.”

While neither the transportation of an image allegedly produced in violation

of § 2251(a) from another jurisdiction nor the possession of such an image in the

Northern District of Georgia changes the location of the “use” or “production”

elements from Greece or South Carolina, as Defendant argues, § 2251(a) ties the

punishment for the “use” of a minor in and “production”of visual depictions of

sexually explicit conduct to the transport of the visual depictions or the means of

producing those visual depictions in interstate or foreign commerce. Thus, under

18 U.S.C. § 3237, the violation of § 2251(a) as alleged in Counts 1 and 3 is a

“continuing offense.” Venue in the Northern District of Georgia into which the

images (and the camera, in the case of Count 3) moved, was appropriate, and the

decision of the district court shall be affirmed.

B. Motion to Suppress

23
 Defendant next complains that the district court erred when it denied his

motion to suppress evidence seized during searches of his home and office because

the district court declined to hold an evidentiary hearing under Franks v. Delaware

to evaluate his allegations of misrepresentations and omissions in the affidavit as to

events which transpired in Russia. He argues, as well, that the district court

erroneously concluded that, based on the evidence in the affidavit, there was

sufficient probable cause to conclude that evidence of a crime would be found in

his home.15

Generally, a district court’s “decision about whether to hold an evidentiary

hearing lies within the court’s sound discretion and will be reviewed only for an

abuse of discretion.” United States v. Arbolaez, 450 F.3d 1283, 1293 (11th Cir.

2006). This Court has not, however, stated a precise standard of review for a

district court’s denial of a Franks hearing. See id. As “‘the more exacting de novo

standard of review is satisfied’” here, we need not determine which standard of

review applies today. Id. (quoting United States v. Stewart, 306 F.3d 295, 304 (6th

15
We note that a hearing was held so that the court could assess Defendant’s Franks
allegations concerning statements from Defendant’s co-workers about the witnesses’ knowledge
of computers in his home, his behavior in Georgia (notably, the presence of young men from
abroad in his home), and the actions of ICE agents in New York. During that hearing, of which
Defendant does not complain, Defendant was given the opportunity to present witnesses and
cross-examine the affiant and one of the agents who arrested him. Accordingly, we are
concerned solely with the district court’s decision not to hold an evidentiary hearing as to the
information contained in the affidavit about Defendant’s activities while in Russia.

24
Cir. 2002)). Whether there was probable cause to support a search warrant is a

question reviewed de novo, but the Court must “‘take care both to review findings

of historical fact only for clear error and to give due weight to inferences drawn

from those facts by resident judges and local law enforcement officers.’” United

States v. Jiminez, 224 F.3d 1243, 1248 (11th Cir. 2000) (quoting Ornelas v. United

States, 517 U.S. 690, 699 (1996)).

For the reasons stated below, we conclude that the district court did not err

when it declined to hold a Franks hearing nor did it err in concluding that the

affidavit, when considered in the edited form urged by Defendant, provided

sufficient probable cause to believe that evidence of a crime would be found in

Defendant’s Gainesville home.

1. Franks Hearing

Affidavits supporting arrest warrants are presumptively valid. Franks v.

Delaware, 438 U .S. 154, 171 (1978). In order to be entitled to an evidentiary

hearing on a motion to suppress based on alleged misrepresentations or omissions

in a search warrant affidavit, a defendant must make a substantial preliminary

showing that the affiant made false statements, either intentionally or with reckless

disregard for the truth, pointing specifically to the portions of the affidavit claimed

to be false, and that the false statements were necessary to the finding of probable

25
cause. Id. When assessing whether the alleged false statements and omissions

were material, the trial court is to disregard those portions of the affidavit which

the defendant has shown are arguably false or misleading. Id. at 171-72. “[E]ven

intentional or reckless omissions will invalidate a warrant only if inclusion of the

omitted facts would have prevented a finding of probable cause.” Madiwale v.

Savaiko, 117 F.3d 1321, 1327 (11th Cir. 1997). Looking only at the remaining

portions of the affidavit, the court will then determine whether including the

omitted facts would have prevented a finding of probable cause. Id. The

defendant bears the burden of showing that, “absent those misrepresentations or

omissions, probable cause would have been lacking.” United States v. Novaton,

271 F.3d 968, 987 (11th Cir. 2001). “‘[I]f, when material that is the subject of the

alleged falsity or reckless disregard is set to one side, there remains sufficient

content in the warrant affidavit to support a finding of probable cause, no hearing

is required.’” Id. (quoting Franks, 438 U.S. at 171-72); United States v. Cross, 928

F.2d 1030, 1040 (11th Cir. 1991).

Defendant concedes that, in considering his motion to suppress, the

magistrate judge “remove[d] all the tainted information, . . . transplant[ed] into the

text the material omissions” averred by Defendant, “and then stepped back to see if

the new product was viable.” (Appellant’s Br. at 31.) Kapordelis urges us to

26
conclude that doing so was simply not enough because, “when the false

information pervades the affidavit and when the omissions are so substantial[,] . . .

the substitute affidavit bears no resemblance to the affidavit signed by the Agent

and considered by the magistrate.” (Id. at 31-32.) Without citation to any legal

authority to support his position, Defendant asks us to conclude that a hearing was

necessary in order to explore his allegations of flagrant misrepresentations or

omissions which were the result of flawed information provided to American

agents by Russian law enforcement agents. We decline this invitation.

As there is no dispute that the magistrate judge undertook the evaluation

prescribed by Franks and considered the affidavit with the omissions and additions

proposed by Defendant, the Court is not persuaded that the trial court erred in

declining to hold a Franks hearing.

2. Probable Cause

Probable cause to support a search warrant exists when the totality of the

circumstances allows the conclusion that “there is a fair probability that contraband

or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462

U.S. 213, 238 (1983); United States v. Brundidge, 170 F.3d 1350, 1352 (11th Cir.

1999). Where a warrant to search a residence is sought, the affidavit must supply

the authorizing magistrate with a reasonable basis for concluding that Defendant

27
might keep evidence of his crimes at his home, i.e., a “safe yet accessible place.”

United States v. Feliz, 182 F.3d 82, 87-88 (1st Cir. 1999).

With regard to a suspect’s home:

The justification for allowing a search of a person's
residence when that person is suspected of criminal
activity is the common-sense realization that one tends to
conceal fruits and instrumentalities of a crime in a place
to which easy access may be had and in which privacy is
nevertheless maintained. In normal situations, few places
are more convenient than one's residence for use in
planning criminal activities and hiding fruits of a crime.

United States v. Green, 634 F.2d 222, 226 (5th Cir. Unit B Jan. 1981). There need

not be an allegation that the illegal activity occurred at the location to be searched,

for example the home, but “the affidavit should establish a connection between the

defendant and the residence to be searched and a link between the residence and

any criminal activity.” United States v. Martin, 297 F.3d 1308, 1314 (11th Cir.

2002); see United States v. Anton, 546 F.3d 1355, 1358 (11th Cir. 2008) (evidence

of possession of contraband of type normally expected to be hidden in residence

will support search); United States v. Jenkins, 901 F.2d 1075, 1080-81 (11th Cir.

1990) (nexus between items to be seized and defendant’s home can be established

circumstantially where contraband is capable of being hidden in residence). But

see Green, 634 F.2d at 226 (convenience of defendant’s residence “for use as a

place to plan and hide fruits of the crime [was] thus diminished, if not eliminated”

28
where alleged obstruction of justice, suborning of perjury, and violations of

citizen’s civil rights took place thousands of miles from home in absence of other

evidence linking residence and the criminal activity).

Defendant argues that the evidence seized under the warrant to search his

home should have been suppressed as the affidavit in support of that warrant did

not provide probable cause to believe that he was either a collector or producer of

child pornography and might, thus, have child pornography in his home. In

support of his argument, Defendant relies on the decision in United States v.

Zimmerman, 277 F.3d 426 (3d Cir. 2002), in which the Third Circuit held, in part,

that an affidavit which did not provide any facts at all upon which one could

conclude that child pornography would be found in a home was insufficient to

provide probable cause for a search for child pornography.16 Id. at 432-33.

Considering the facts presented in the affidavit in this matter, Zimmerman is easily

distinguishable.

In this matter, a warrant was sought so that a search of Defendant’s home

could be conducted for evidence “concerning a violation of [18 U.S.C. §§] 2252(a)

16
In Zimmerman, the Third Circuit also held that the affidavit provided no probable
cause to search for particular images of adult pornography which were allegedly shown to the
defendant’s molestation victims because the information that such evidence was present at the
defendant’s home was stale. United States v. Zimmerman, 277 F.3d 426, 433-36 (3d Cir. 2002).
Defendant does not, however, argue that the facts presented in the affidavit at bar were not
derived from sufficiently contemporary information to demonstrate probable cause that evidence
of child pornography or sex tourism would be found in his home.

29
[sexual exploitation of minors, i.e., producing, receiving, and possessing child

pornography], 2252(A) [sic] [same] and 2423(b) [sex tourism].” Among the items

sought under the warrant were (a) documents related to travel for the purpose of

engaging in sexual activities with minors, (b) documents and other materials

evidencing solicitations of minors to engage in sexually explicit conduct, (c) items

which provided the identity of the minors found in any sexual explicit images, and

(d) medications that render persons unconscious or unaware that might be used for

purposes of engaging in sexually explicit conduct with minors.

The affiant asserted that there existed probable cause to believe that

“evidence, fruits and instrumentalities of trafficking, receipt, distribution, and/or

possession of visual depictions and other related materials, involving minors

engaging in sexually explicit conduct” would be found in Kapordelis’s home.

Once the affidavit was edited under Franks, there remained evidence that

Defendant endeavored to and had traveled to Russia where he had spent time in the

company of several young boys, that at least two and maybe three boys had

complained of molestation by Kapordelis while he was in Russia, that Defendant

had created images of boys while in Russia, and that Defendant had an interest in

juvenile boys predating his travel to Russia on the occasion of his arrest.17 Further,

17
Other courts have considered a defendant’s “extreme interest in young children” in
determining whether to issue a search warrant where a defendant is accused of possession and

30
it was clear from the edited affidavit that Defendant had the means to obtain and

store documents and items related to his travel, as well as any images and other

data that he had gathered in advance of that travel or created or collected during

that travel, on a computer located in his home and by means of access to the

Internet from his home. Giving due weight to inferences drawn from the facts by

the magistrate judge who issued the search warrant and the law enforcement

officers investigating Kapordelis’s activities, we conclude that there was probable

cause to support the issuance of a search warrant for Kapordelis’s home. The

evidence presented by the affiant, once edited under Franks, was sufficient to

provide a reasonable basis for concluding that Defendant could be engaged in sex

tourism and that Defendant would reasonably keep evidence of such activities,

including sexually explicit images of children, in his home, a place where one

might ordinarily orchestrate travel, keep information about one’s travel, and make

plans for activities – whether legal or illegal – while on a trip.

We reject Defendant’s argument that there was an insufficient nexus

between allegations that he was engaging in the production of child pornography,

distribution of child pornography. See United States v. Hay, 231 F.3d 630, 632-34 (9th Cir.
2004) (finding that court properly considered a defendant’s “extreme interest in young children”
in affirming the issuance of a search warrant for defendant’s computer for evidence of
possession and distribution of child pornography). This Court believes that Defendant’s interest
in young boys is no less relevant in determining whether to issue a search warrant in this matter
where sex tourism and producing, receiving, and possessing child pornography is alleged.

31
the evidence of sex tourism sought under the warrants, and the likelihood that

evidence of those crimes would be found in his home. Using common sense in

evaluating the facts, the necessary “nexus” existed between the facts surrounding

Defendant’s travel to Russia, the facts which suggested that he met and engaged in

sexual activity with young boys and the assertion that evidence of sex tourism and

child pornography would be found in Defendant’s home. See Anton, 546 F.3d at

1358. Accordingly, we affirm the district court’s denial of Defendant’s motion to

suppress.

3. Additional Arguments Waived

Defendant has also presented two undeveloped arguments to the Court in his

brief. Citing “word limitations” on his brief, he first “urges the Court to consider

the detailed legal arguments made in the lower court about the inapplicability” of

the border search or search incident to arrest doctrines upon which the lower court

relied to deny his motion to suppress evidence contained on his computer seized at

John F. Kennedy International Airport upon his return from Russia, i.e., at the

border. (Appellant’s Br. at 36.) Defendant also asks this Court to consider his

argument that, if the Court determines that the Fourth Amendment does not require

suppression of certain evidence, “the Due Process Clause provides an alternative

avenue for relief.” (Id. at 37.) He offers no support for that claim in his brief

32
except to refer the Court to the reasons “set forth in [lower court] pleadings.” (Id.)

“We have rejected the practice of incorporating by reference arguments made to

the district courts.” Anderson v. Sec’y for the Dep’t of Corr., 462 F.3d 1319, 1331

(11th Cir. 2006) (citing Four Seasons Hotels and Resorts, B.V. v. Consorcio Barr

S.A., 377 F.3d 1164, 1167 n.4 (11th Cir. 2004)). As Kapordelis has not properly

presented these arguments for review, they are waived on appeal, and we decline to

consider them further.

C. Admission of Evidence under F ED. R. E VID. 404(b)

Defendant next argues that the district court erred when it admitted

testimony from Chris Williams and Lester Andrews that Defendant solicited sex

from boys in exchange for money while in Prague. Specifically, Defendant argues

that his activity with males under the age of eighteen was legal in the Czech

Republic and, thus, there was no evidence of a crime or wrong that could be

admitted under Federal Rule of Evidence 404(b).18 Defendant further argues that

the evidence should have been excluded, even if it was admissible under Rule

404(b), because it was irrelevant to the charges of receipt, possession, or

production of child pornography in the indictment, it was unfairly prejudicial, and,

18
Defendant also argues that the admission of certain unspecified emails and text
messages was erroneous for the same reasons. As he fails to cite with any specificity as to which
trial exhibits he claims error, he has waived these issues on appeal.

33
thus, it was inadmissible under Federal Rule of Evidence 403.

Because Kapordelis properly objected at trial to the relevant rulings, we

review the district court’s evidentiary rulings for abuse of discretion. United States

v. Henderson, 409 F.3d 1293, 1297 (11th Cir. 2005). Factual findings underlying

evidentiary rulings are reviewed for clear error. United States v. Dickerson, 248

F.3d 1036, 1046 (11th Cir. 2001). Rule 404(b) “is a rule of inclusion, and . . .

accordingly 404(b) evidence, like other relevant evidence, should not be lightly

excluded when it is central to the prosecution's case.” United States v. Jernigan,

341 F.3d 1273, 1280 (11th Cir. 2003) (internal citations and quotations omitted).

As an initial matter, there is no merit to Defendant’s argument that evidence

of his trysts with boys in Prague cannot be admitted under Rule 404(b) even if such

actions were legal under the law of the Czech Republic. Rule 404(b)

straightforwardly provides for the admission of evidence of “other crimes, wrongs,

or acts” and is not limited to criminal acts. Thus, evidence of “other acts,” whether

unlawful in the jurisdiction where they take place or not, is admissible under Rule

404(b) if there is sufficient proof to support a jury’s finding that the defendant

committed the similar act and the other act is probative of a material issue other

than the defendant’s character. See Dickerson, 248 F.3d at 1046-47.

Defendant concedes that he engaged in sexual acts with minors while he was

34
in Prague, so the first issue before us is whether this evidence was probative of a

material issue and not offered to prove Kapordelis’s character “in order to show

action in conformity therewith.” F ED. R. E VID. 404(b). We are persuaded that it is.

Kapordelis asserted “identity” and “knowledge” defenses when he argued that

someone else took the photos of his cousin and former patient found in his home

and that someone else downloaded child pornography onto his computer or,

alternatively, that it happened automatically. Evidence that Defendant traveled

abroad in order to engage in sexual trysts with underage boys in Prague was, thus,

admissible under 404(b) as “proof of . . . knowledge, identity, or absence of

mistake or accident” and intent with regard to his travel with his cousin and his

former patient during which sexually explicit images of the boys were created and

with regard to his collection of pornographic images of children. See United States

v. Hersh, 297 F.3d 1233, 1254 n.31 (11th Cir. 2002) (404(b) evidence of an

uncharged instance of molestation of minor admissible in child exploitation case to

show defendant’s state of mind and modus operandi, and to rebut attack on witness

credibility).

We must next consider whether, as Kapordelis argues, the probative value of

that evidence was outweighed by its unduly prejudicial nature, such that it must be

excluded under Federal Rule of Evidence 403. Demonstrating that a piece of

35
evidence is prejudicial is not enough to warrant exclusion under Rule 403 by itself

since virtually all evidence presented against a criminal defendant can be

considered prejudicial. United States v. Terzado-Madruga, 897 F.2d 1099, 1119

(11th Cir. 1990). Rather, exclusion is warranted only when the evidence creates a

danger of unfair prejudice that substantially outweighs the probative value of the

evidence. Id. Exclusion under Rule 403 is an “extraordinary remedy” that should

be “used sparingly.” United States v. Fortenberry, 971 F.2d 717, 721 (11th Cir.

1992) (quoting United States v. Norton, 867 F.2d 1354, 1361 (11th Cir. 1989)).

Defendant’s identity and knowledge defense considered, the probative value of the

prior bad acts was substantial and outweighed the prejudicial effect in this

instance.19

We conclude the district court properly admitted the testimony of Chris

Williams and Lester Andrews regarding Defendant’s sexual exploits with boys in

Prague. Defendant raised the defenses of lack of identity and lack of knowledge

regarding who took the photographs or downloaded pornographic material to his

19
Defendant argues, in passing, that the district court failed to give an appropriate
cautionary instruction to the jury regarding this evidence. The district court, however, cautioned
the jury three times about how to consider 404(b) evidence. As well, Defendant chose to focus
the jury’s attention on his conduct in Prague in his opening argument, well before the district
court ruled on his objection, and throughout the trial. We are not persuaded that the jury was not
adequately instructed on the proper use of this evidence nor do we feel inclined to point a finger
at the district court for some perceived failure to protect Defendant from any prejudice which
resulted from the presentation of this evidence when Defendant placed it squarely before the jury
in his opening argument at trial and on multiple other occasions.

36
computers, making that evidence relevant, and, in any event, Defendant

preemptively presented the fact of his conduct in Prague before the jury. As there

was no abuse of discretion on the part of the district court, we will affirm its

decision to admit testimony from Chris Williams and Lester Andrews.

D. Sentencing

We engage in a two-step process when reviewing a sentence: (1) we ensure

that no procedural error occurred, such as the district court improperly calculating

the Guidelines, basing a sentence on clearly erroneous facts, or failing adequately

to explain a variation from the Guidelines; and (2) we ensure that the sentence is

substantively reasonable. United States v. Livesay, 525 F.3d 1081, 1091 (11th Cir.

2008). For the reasons which follow, we conclude that the district court did not err

and that Kapordelis’s sentence was reasonable.

1. Choice of Guidelines Manual Edition

We review de novo questions of law dealing with the Guidelines. United

States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). Pursuant to the Ex Post

Facto Clause, if applying the Guidelines in effect at the time of sentencing would

result in a harsher penalty, a defendant must be sentenced under the Guidelines in

effect at the time when he committed the offense. United States v. Masferrer, 514

F.3d 1158, 1163 (11th Cir. 2008). While we have held that the district court must

37
correctly calculate the Guidelines before imposing a sentence, we are not required

to vacate a sentence if it is likely that, under the correctly calculated Guidelines,

the district court would have imposed the same sentence. United States v. Scott,

441 F.3d 1322, 1329 (11th Cir. 2006). Here, while the use of the 2002 Guidelines

would have resulted in fewer enhancements to Kapordelis’s grouping for the

receipt and possession charges, the record indicates that the district court would

have imposed the same 420-month sentence had it applied the 2002 Guidelines.

Ultimately, the district court varied upward to the statutory maximum,

demonstrating its intention to give Kapordelis the longest sentence that it could,

based on Kapordelis’s long history of abuse, parity, and the need for

incapacitation. These factors would have remained relevant had the 2002

Guidelines been used. U.S.S.G. app. C, Amend. 649. Accordingly, any error in

using the 2003 Guidelines was harmless, and this Court does not need to address

whether the district court erred in using the 2003 Guidelines. See Scott, 441 F.3d

at 1329.

2. Guidelines Calculation

We review de novo a claim of double counting under the Guidelines. United

States v. Lebovitz, 401 F.3d 1263, 1270 (11th Cir. 2005). Double counting occurs

“when one part of the Guidelines is applied to increase a defendant's punishment

38
on account of a kind of harm that has already been fully accounted for by

application of another part of the Guidelines.” United States v. Naves, 252 F.3d

1166, 1168 (11th Cir. 2001). Double counting “is permitted if the Sentencing

Commission intended the result, and if the result is permissible because each

section concerns conceptually separate notions related to sentencing.” Id.

“‘Absent a specific direction to the contrary, we presume that the Sentencing

Commission intended to apply separate sections cumulatively,’ and, as a result, a

defendant asserting a double counting claim has a tough task.” Lebovitz, 401 F.3d

at 1270 (quoting Naves, 252 F.2d at 1168).

The 2003 Guidelines applied by the sentencing court provide for a 2-level

enhancement when 10 or more child pornography films are possessed, see

U.S.S.G. § 2G2.4(b)(2) (2003), and a 5-level enhancement when 600 or more

images of child of pornography are possessed, see U.S.S.G. § 2G2.4(b)(5)(D)

(2003). As we have already noted, however, the record indicates that the district

court would have imposed the same 420-month sentence on Kapordelis had it

applied the 2002 Guidelines instead of the 2003 Guidelines as the court varied

upward from the Guidelines based on Kapordelis’s long history of abuse, parity,

and the need for incapacitation. The 2002 version of the Guidelines provides only

for the 2-level enhancement when 10 or more child pornography films are

39
possessed, see U.S.S.G. § 2G2.4(b)(2) (2002), and makes no provision for the 5-

level enhancement for the possession of 600 or more images of child pornography

which was included in the 2003 version. See U.S.S.G. § 2G2.4(b)(5)(D) (2003).

Thus, any error committed in applying both the 2-level enhancement and the 5-

level enhancement provided for in the 2003 Guidelines was harmless, and the

Court does not need to address whether the district court actually erred by double

counting as a result of its application of U.S.S.G. §§ 2G2.4(b)(2) and

2G24(b)(5)(D).20 See Scott, 441 F.3d at 1329. The decision of the district court

shall be affirmed.

3. Vulnerable Victim Enhancement

Next, Kapordelis argues that the district court erred in applying a vulnerable

victim enhancement because the only basis for that enhancement was that Roupas

and Walker were asleep when the pictures were taken and not, thus, vulnerable

targets as contemplated for the purposes of applying § 3A1.1. Defendant also

claims that it was illogical for the court to conclude that taking a photograph of a

sleeping child was more serious than filming a child actively engaging in sexual

conduct.

20
We do note, however, that we have held that it is not impermissible double counting
for the district court to apply both § 2G2.4(b)(2) and § 2G2.4(b)(5) where those provisions of the
Guidelines are properly applied. United States v. Lebovitz, 401 F.3d 1263, 1270 (11th Cir.
2005).

40
 We review de novo the district court’s application of a U.S.S.G. § 3A1.1

enhancement, as it presents a mixed question of law and fact, but give due

deference to the district court’s determination that a victim was vulnerable, as this

is a factual finding. United States v. Amedeo, 370 F.3d 1305, 1317 (11th Cir.

2004). In this instance, the boys qualified as “vulnerable victims” under the

Guidelines because they were asleep or otherwise nonresponsive and, thus, unable

to object or respond in anyway when Kapordelis’ pulled down their underwear and

exposed their genitalia or anuses for the camera. See United States v. Wetchie, 207

F.3d 632, 634 (9th Cir. 2000) (sleeping victim of sexual abuse was “unusually

vulnerable” to defendant’s conduct due to “physical condition” or “otherwise

particularly susceptible to [his] criminal conduct”); United States v. Plenty, 335

F.3d 732, 735 (8th Cir. 2003) (sleeping victim of burglary was vulnerable for

purposes of U.S.S.G. § 3A1.1(b)(1)); United States v. Newsom, 402 F.3d 780, 785

(7th Cir. 2005) (sleeping victim was vulnerable where defendant moved victim’s

underwear so as to get better shots of her genitals, which would have been

impossible had victim been awake). The application of the vulnerable victim

enhancement by the district court was not error, and the decision of the district

court is affirmed.

4. Victim Impact Statement

41
 Kapordelis also argues that the district court should not have received

Walker’s victim impact statement at sentencing because there was no evidence that

it came from Walker, and Kapordelis did not have notice of the statement in time

to rebut it. However, any error in receiving Walker’s victim impact statement was

harmless, as the district court did not rely on the statement, and thus, it is likely

that the court would have imposed the same sentence even had it excluded the

statement. Scott, 441 F.3d at 1329.

5. Departure or Variance

Defendant next argues that the Court improperly departed from the

Guidelines. In determining whether the district court applied an upward departure

under the Guidelines or a variance under the 18 U.S.C. § 3553(a) factors, we

consider whether the district court cited to a specific guideline departure provision

and if the court’s rationale was based on its determination that the Guidelines were

inadequate. See United States v. Eldick, 443 F.3d 783, 788 n.2 (11th Cir. 2006). In

this matter, although the district court stated that it was granting the United States’

“motion for an upward departure,” the district court actually granted a variance

under the § 3553(a) factors. The court did not cite to a specific guideline departure

provision, and its rationale was based on the § 3553(a) factors and its finding that

the Guidelines were inadequate. Eldick, 443 F.3d at 788 n.2; United States v.

42
Talley, 431 F.3d 784, 786 (11th Cir. 2005). As the court granted an upward

variance and not a departure, the district court did not improperly depart from the

Guidelines.

6. Reasonableness

Finally, we review the sentence imposed by the district court for

reasonableness. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007). In Gall

v. United States, 552 U.S. ___, 128 S.Ct. 586, 591, 594 (2007), the Supreme Court

clarified that, in a review for reasonableness, an appellate court is to review

sentencing decisions for an abuse of discretion, even when the sentence is

significantly outside of the Guidelines, but the degree of deviation from the

Guidelines remains relevant.

Attaching “great weight” to a single § 3553(a) factor does not automatically

make a sentence unreasonable, but, when viewed under the totality of the

circumstances, an unjustified reliance on a single factor may result in an

unreasonable sentence if the court relied on impermissible factors or ignored other

relevant § 3553(a) factors. United States v. Pugh, 515 F.3d 1179, 1192 (11th Cir.

2008). When a sentence is outside of the Guidelines, the degree of the variance

must be supported by a “sufficiently compelling” justification, and the district

court must explain its reasoning for the sentence in order to permit meaningful

43
appellate review. Livesay, 525 F.3d at 1090. The § 3553(a) factors include:

(1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need
to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant
with needed educational or vocational training or
medical care; (6) the kinds of sentences available; (7)
the Sentencing Guidelines range; (8) pertinent policy
statements of the Sentencing Commission; (9) the need
to avoid unwanted sentencing disparities; and (10) the
need to provide restitution to the victims.

Talley, 431 F.3d at 786 (11th Cir. 2005) (citing 18 U.S.C. § 3553(a)).

In Pugh, this Court held that the district court abused its discretion by

imposing a non-custodial sentence when the defendant pled guilty to possessing

child pornography, as the district court focused exclusively on one of the § 3553(a)

factors, Pugh’s history and characteristics, and ignored other relevant statutory

factors, including (1) deterrence, (2) the need to promote respect for the law, (3)

the need to provide a just punishment, (4) pertinent policy statements, (5)

providing a sufficient justification for the variance, (6) the need to protect the

public, and (7) the need to avoid unwarranted sentencing disparities. Pugh, 515

F.3d at 1182-84, 1192, 1194-1203. In discussing the need to avoid unwarranted

disparities, this Court summarized recent sentences for child sex offenses in which

we had upheld (1) 78 months’ imprisonment for possession of child pornography;

44
(2) 360 months’ imprisonment for receipt, distribution, and possession of child

pornography; (3) 97 months’ imprisonment for use of the internet to entice a minor

to engage in sexual activity; (4) 84 months’ imprisonment for distribution of child

pornography; (5) 120 months’ imprisonment for use of the internet to entice a

minor to engage in sexual activity; (6) 72 months’ imprisonment for distribution of

child pornography; and (7) 31 months’ imprisonment for possession of 13 images

of child pornography. Id. at 1202-03. In Scott, this Court affirmed the defendant’s

135-month sentence for (1) using the internet to entice a minor for sexual activity,

(2) traveling in interstate commerce to engage in sexual activity with a minor, and

(3) crossing a state line with the intent to engage in sexual activity with a minor

under the age of 12. Scott, 426 F.3d at 1325.

Here, in granting an upward variance, the district court did not rely on one of

the statutory factors exclusively, but relied on several of the § 3553(a) factors,

including (1) the nature and circumstances of Kapordelis’s offense, by considering

the number of images that he possessed, (2) Kapordelis’s history and

characteristics, including his history of abusing minors and lack of remorse, (3) the

need to protect the public, and (4) the need to avoid unwanted sentencing

disparities. See Talley, 431 F.3d at 786. The number of images that he possessed

was a part of the nature and circumstances of his conviction, and thus, it was

45
proper for the district court to consider it in imposing an appropriate sentence. See

18 U.S.C. § 3553(a)(1). Additionally, we are not persuaded by Kapordelis’s

arguments that the number of images was never reliably established and that his

case was not “out of the heartland” of child pornography cases because his

argument ignores the fact that he admitted to possessing at least 500 child

pornography videos.

The district court also did not abuse its discretion by granting an upward

variance based on the number of images that Kapordelis possessed, as the

enhancements provided for by either the 2002 or 2003 versions of the Guidelines

did not fully account for the 500 videos that Kapordelis possessed or the 2,000

images that Kapordelis admitted possessing. See U.S.S.G. § 2G2.4(b)(2) (2002

and 2003); U.S.S.G. § 2G2.4(b)(5)(B) (2003).

Additionally, the district court did not abuse its discretion by considering

Kapordelis’s history of abuse and lack of remorse. Contos’s testimony revealed

that Kapordelis had been drugging and molesting minors for at least 20 years.21 18

U.S.C. § 3553(a)(1). Further, the district court’s finding that Kapordelis had a

history of abuse is supported by the fact that he produced child pornography on

three separate occasions over a two-year period, and that, although it may have

21
Kapordelis has argued that Contos’s testimony was unreliable, but he provides no
support for his assertion.

46
been legal activity in the Czech Republic, Kapordelis’s main objective while in

Prague was to have sex with boys under the age of eighteen.

The district court did not abuse its discretion in finding that an upward

variance was necessary to protect society because it was unlikely that Kapordelis

would be rehabilitated given his attitude and lack of remorse, as Kapordelis, during

his allocution, continued to attack the AUSAs, instead of showing remorse, by

calling them liars and comparing them to Hitler. Additionally, while Kapordelis

argues that the need to protect society was an impermissible factor for the district

court to consider, § 3553(a) expressly authorizes consideration of the need to

protect society. 18 U.S.C. § 3553(a)(2)(C).

With regard to parity, the district court explained that the guideline range

was not adequate since the defendant in Scott, the case to which the parties agree

the district court was referring, received a ten-year sentence for traveling across

state lines once to have sex with a minor. Kapordelis is correct that the district

court failed to articulate why his guideline range of 262-327 months’ imprisonment

was disproportionately low compared to the 135-month sentence in Scott, and did

not cite to cases involving the production of child pornography in which the

defendant received shorter sentences. Livesay, 525 F.3d at 1090; Scott, 426 F.3d at

1325. However, Kapordelis’s reliance on the sentences summarized in Pugh to

47
argue that his sentence is unreasonable is misplaced, as none of the sentences was

for the production of child pornography. Pugh, 515 F.3d at 1202-03.

Contrary to Kapordelis’s assertion, the district court did not base the upward

departure on impermissible grounds because, while the district court commented

on the fact that Kapordelis had used the applicable rules and the district court’s

generosity to drag out his case, the district court did not state that it was basing the

upward departure on this ground. Further, Kapordelis’s argument that the district

court merely paid lip service to the § 3553(a) factors is inaccurate. The district

court was not required to discuss each factor, and, unlike the court in Pugh, the

district court did not ignore other relevant factors, as the 420-month sentence (1)

promoted respect for the law, (2) illustrated the seriousness of the offense, and (3)

will serve as a deterrent. § 3553(a)(2)(A), (B); Livesay, 525 F.3d at 1090; Pugh,

515 F.3d at 1194-1203. Based on the totality of the circumstances, the district

court provided a sufficiently compelling justification to support the upward

variance by basing it on Kapordelis’s history of abuse, the number of images that

he possessed, and the need to protect society, and thus, the district court did not

abuse its discretion by imposing an upward variance. Livesay, 525 F.3d at 1090;

Pugh, 515 F.3d at 1192.

The sentence was reasonable, and we affirm the sentence imposed by the

48
district court.

III. Conclusion

For all of the reasons stated above, Kapordelis’s conviction and the

decisions of and the sentence by the district court are AFFIRMED.

49