In prosecution for producing, receiving, and possessing child pornography, Eleventh Circuit rejects claim that sexual conduct with minor boys in a foreign country was not unlawful and therefore the evidence did not constitute a “wrong” or “crime” under FRE 404(b), in United States v. Kapordelis, 569 F.3d 1291 (11th Cir. 2009) (No. 07-14499)
Occasionally the issue is presented whether evidence admitted under FRE 404(b) must be unlawful. The Eleventh Circuit recently addressed this recurring claim and reaffirmed that lawful evidence is admissible under FRE 404(b).
In the case, an investigation established that defendant Kapordelis, who was an anesthesiologist, traveled to other states and countries with minor boys or to meet minor boys. Typically, after the boys were intoxicated and or otherwise sedated, the defendant would expose the boys and take photographs or molest them. An arrest and search warrants were obtained. On seized computers thousands of images and videos of child pornography were found, including of the defendant’s eleven-year-old cousin and a former patient who was fourteen-years-old. The defendant was indicted for producing, receiving, and possessing child pornography.
At trial, the defendant objected to the testimony of two witnesses that he had also “solicited sex from boys in exchange for money while in Prague.” Kapordelis, 569 F.3d at 1312. The defendant claimed that sexual activity with minor boys was lawful in the Czech Republic. In the absence of any “crime or wrong,” the uncharged evidence was inadmissible under FRE 404(b). The trial court disagreed and admitted the evidence under FRE 404(b). The jury convicted the defendant. The court sentenced him to serve 420 months in prison. On appeal, one issue raised concerned the admission of the Czech Republic activity
The circuit found no abuse of discretion in admitting the uncharged evidence. The circuit rejected the claim that the absence of any wrong or crime in the Czech Republic evidence made it inadmissible:
“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.”Kapordelis, 569 F.3d at 1313 (citing United States v. Dickerson, 248 F.3d 1036, 1046-47 (11th Cir. 2001) (“It is well-settled in this circuit that ‘the principles governing what is commonly referred to as other crimes evidence are the same whether the conduct occurs before or after the offense charged, and regardless of whether the activity might give rise to criminal liability.’”) (quoting United States v. Delgado, 56 F.3d 1357, 1365 (11th Cir. 1995) (footnote omitted), cert. denied, 516 U.S. 1049 (1996))).
The circuit also agreed that the evidence was admissible under Rule 404(b) to show “identity” and “knowledge” and the “absence of mistake or accident” after the defense claimed someone else took the photographs and downloaded the images, and the evidence was not unfairly prejudicial.
As the Kapordelis case highlights, FRE 404(b) expressly applies to “[e]vidence of other crimes, wrongs, or acts.” The “other” acts need not be unlawful or wrongful to be admissible.
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