from the United States District Court No. 1:14-CR-00207-CMA-1
for the District of Colorado
Gainor, Longmont, Colorado, for Defendant - Appellant.
Bishop Grewell, Assistant U.S. Attorney, (Robert C. Troyer,
United States Attorney with him on the brief) Denver,
Colorado, for Plaintiff - Appellee.
HARTZ, MATHESON, and EID, Circuit Judges.
MATHESON, CIRCUIT JUDGE.
Isabella was convicted under 18 U.S.C. § 2422(b) of
persuading and attempting to persuade S.F., a 14-year-old
girl, to "engage . . . in any sexual activity for which
any person can be charged with a criminal offense"
(Count 1) and under 18 U.S.C. § 2251(a) and (e) of
attempting to persuade S.F. to produce child pornography
(Count 2). On appeal, Mr. Isabella argues (1) the evidence
was insufficient to sustain his convictions; (2) the district
court made six improper evidentiary rulings; and (3) his
convictions and sentences under §§ 2422(b) and
2251(a) and (e) violate the Double Jeopardy Clause.
Exercising jurisdiction under 28 U.S.C. § 1291, we
September 2013, Mr. Isabella began chatting with S.F., a
14-year-old high school student, through a mobile application
called Minus. For the next three months, they communicated
via cellular telephone, a messaging application called Kik,
and email. Mr. Isabella and S.F. developed a flirtatious
relationship and called each other boyfriend and girlfriend.
Mr. Isabella used pet names like "baby,"
"angel," and "princess" when
communicating with S.F. They chatted about sex and sent each
other pictures, including nude pictures of themselves. During
the early period of their communications, they chatted nearly
every day. When S.F.'s mother discovered the sexual chats
and pictures, she contacted the police, who obtained a search
warrant for Mr. Isabella's home. The officers seized Mr.
Isabella's phone and extracted messages and images from
it. After executing the search, authorities arrested Mr.
federal grand jury indicted Mr. Isabella on four counts, two
concerning his interactions with S.F. (Counts 1 and 2), and
two based on his interactions with an undercover officer
posing as a minor (Counts 3 and 4). The charges were:
Count 1: Persuading and attempting to persuade S.F. to engage
in sexual activity for which any person can be charged with a
criminal offense, in violation of 18 U.S.C. § 2422(b).
Count 2: Attempting to produce child pornography, in
violation of 18 U.S.C. § 2251(a) and (e), in his
interactions with S.F.
Count 3: Persuading and attempting to persuade an undercover
officer posing as a minor to engage in sexual activity for
which any person can be charged with a criminal offense, in
violation of 18 U.S.C. § 2422(b).
Count 4: Attempting to produce child pornography, in
violation of 18 U.S.C. § 2251(a) and (e), in his
interactions with an undercover officer posing as a minor.
Vol. I at 13-15.
Isabella's trial took 11 days. We detail the relevant
evidence from: (1) the Government's case-in-chief; (2)
the defense's case, including Mr. Isabella's
testimony; and (3) the Government's rebuttal.
The Government's Case-in-Chief
Government called 11 witnesses in its case-in-chief. Most
relevant for this appeal was the testimony of S.F., P.F.
(S.F.'s mother), and Homeland Security Special Agents
Michael Thomas,  Paul Anderson, and Vanessa Wright.
testified at trial. She read the chats aloud and explained
the nature of her relationship with Mr. Isabella. According
to S.F., Mr. Isabella told her that he would send her a phone
but she "must keep it hidden away until a designated
time we set." ROA, Vol. VIII at 373. He also asked her
if she could use Skype, Kik, and a variety of other messaging
applications instead of text messages. He said, "We
really should text on [Kik]. Safer. And you promise you will
always protect me no matter what?" Id. at 347.
testified that, early in their communications, she told Mr.
Isabella she was 14 years old. Mr. Isabella asked S.F. if she
had a boyfriend and if she was okay with a "big older
man." Id. at 284. He asked, "So in 4 years
you are moving in with me then? . . . You will be 18, right?
We could take a birthday trip somewhere exotic."
Id. at 288. Mr. Isabella also asked S.F. if she
could drive yet. She said that she knew how to drive but was
not legally able to do so. S.F. also explained that her
mother restricted her phone use.
asked Mr. Isabella how old he was. He responded that he was
"nearly 3 times [her] age" and then stated that he
was "39 and 11 months."  Id. at 285-86.
Isabella lived in Ohio. S.F. lived in Colorado. The two never
met prior to trial, but they discussed meeting. On one
occasion, Mr. Isabella said, "Haha. Come see me and we
will party for dayzzz!!" Id. at 343. On another
occasion, he said, "Grab a girlfriend and come visit me
in florida this winter." Id. at 305. Mr.
Isabella said he was in a band and suggested he might visit
her in Colorado while on tour. He asked, "So if i got a
hotel near you would you have a way to get to me?"
Id. at 344. He followed up, "So when i come to
you, you will stay with me?" S.F. responded,
"I'll try." Id. at 345.
testified that if she had stayed with Mr. Isabella in the
hotel, she thought they would have had sex. At one point, Mr.
Isabella informed S.F. that he was aroused and S.F.
responded, "U said u wish I could see what u do to me so
show me." Id. at 301. They proceeded to discuss
having sex and penis size. Id. at 301-03. On a
separate occasion, after sending S.F. a picture of his penis,
Mr. Isabella discussed performing oral sex acts with her.
Id. at 310. The conversations were at times even
more graphic. See id. at 351-53 (testimony of Mr.
Isabella detailing an imagined sexual encounter).
Picture discussions and exchanges
Mr. Isabella sent S.F. the picture of his penis, he did so
after stating that he was aroused. He said, "Ask me for
a pic. Be specific." Id. at 307. When S.F.
asked for a photo, he stated, "Pic of what? Say
it." Id. When S.F. responded, "I don't
know, surprise me," and "I don't know
lol," Mr. Isabella followed up, "Age thing. You
must ask me for it. . . . Or else you don't want it.
Thats okay." Id. Eventually S.F. said,
"send a dic pic." Id. at 308. He replied,
"That's my baby girl," and sent her a picture
of his penis. Id. at 308-10.
Isabella also asked S.F. for pictures. He requested pictures
of "[her] pretty face," and she sent them.
Id. at 293-94. He requested more photos, and stated
they were "So beautiful!!!" Id. at 294. At
one point, S.F. said she was "in the shower."
Id. at 298. Mr. Isabella responded, "Pic now!!
Haha." Id. He repeated the request: "Pic
now!! (Again). Hahaaa!!" Id. After she
responded without a picture, Mr. Isabella said, "I will
bet you are gorgeous right now. Just send simple mirror
pic." Id. S.F. sent him a picture of a
fogged-up mirror. Mr. Isabella responded, "Any mirrors
not fogged up?" and "Now I just want to see you a
hundred times more." Id. at 299. After a
separate shower reference, Mr. Isabella responded similarly:
"Take a pic right now in mirror exactly as you are and
send me now." Id. at 293. In another
conversation, he asked for more pictures and stated he was
thinking of her "ripping off clothes and running around
[the] room naked." Id. at 323-24.
S.F. sent Mr. Isabella sexual photos. Mr. Isabella stated,
"And wait a min. I sent you a pic of my manhood. And
what have you sent meeeeee? Hehehehh." Id. at
312. S.F. then sent Mr. Isabella a picture of her naked body
from the neck down (the "torso pic"). She testified
that she did not take the picture for Mr. Isabella and that
he had nothing to do with her taking it. The circumstances
surrounding the picture's production are discussed below.
Isabella responded to the picture, "That is
youuuuu???" and "Sooooo nice!! Got one with
face?" Id. at 314. Then, "Reaaaally want a
somewhat naughty pic with your face. Hahaaa. You doin
homework?" Id. On a separate occasion, S.F.
also sent a picture of herself in her bra and underwear.
Id. at 362-63. She sent that same picture on
cross-examination, S.F. admitted that she lied to
investigators about her interactions with Mr. Isabella. She
initially told investigators that Mr. Isabella (1) had
presented himself to her as a 17-year-old boy named Kyle, (2)
had threatened to hurt her sister if she did not send him
pictures, and (3) had made her take the photos. At trial,
defense counsel asked, "And you had just said that it
wasn't true. What part wasn't true?"
Id. at 1965. S.F. responded, "That he lied
about his age. That he lied about his name. That he was
making me do it. Everything that I did and I said was all by
my own choice. He never made me do anything."
Id. S.F. admitted that she "still ha[d]
feelings for [Mr. Isabella]" and stated that she
"want[ed] to send pictures to Mr. Isabella because of
the way he made [her] feel." Id. at
Special Agent Vanessa Wright's testimony
Wright, a special agent with the Department of Homeland
Security, investigated Mr. Isabella as an undercover agent
("UCA"). She posed as a 15-year-old girl and
initiated internet communications with Mr. Isabella in
December 2013. The communications quickly turned sexual. At
one point, Mr. Isabella asked her if she would stay in a
hotel with him and suggested he could meet the UCA in
Florida. He also asked for pictures and video from the UCA on
multiple occasions, including a video of her stripping and
pictures of her vagina.
Special Agent Paul Anderson's testimony
Anderson, a Homeland Security Investigations Special Agent,
conducted a forensic search of S.F.'s phone. He explained
how the phone's call log works and presented the history
of outgoing and incoming calls between S.F.'s phone and
Mr. Isabella's phone. He also detailed the emails,
pictures, and chats between S.F. and Mr. Isabella that he
extracted from the phone. Those communications were entered
Agent Anderson also conducted a forensic analysis of Mr.
Isabella's phone and computer, which were seized during a
search of his Ohio home. On direct examination, he explained
the chats, emails, and pictures between Mr. Isabella and S.F.
that he extracted from the phone. Those communications also
were entered into evidence.
The Defense's Case
Isabella testified over the course of three days. His expert,
Dr. Mark Mills, was the only other witness who testified for
Mr. Isabella's testimony
Isabella explained his online dating habits, including his
use of websites called "Plenty of Fish" and
"O.K. Cupid," which allowed individuals over the
age of 18 to meet online. He testified that Plenty of Fish
users could only search for other individuals within 100
miles. He explained that users on those dating sites would
sometimes pose as people that they were not, a term he called
"catfishing." When Mr. Isabella suspected users of
catfishing, he testified that he tried to speak to them on
the phone or through a live video communication program like
Skype to verify their identity.
Isabella explained that he also used the internet for
sexualized fantasies. He stated that he enjoyed the anonymity
of the internet: "You can hide behind a handle and say
anything you want, be anyone you want to be." ROA, Vol.
VIII at 927. He testified about his sexualized fantasies and
chats with individuals over the age of 18, some of whom had
sent him nude photos. Many of these photos, Mr. Isabella
testified, did not show the face of the individual sending
presented at trial with the transcripts of his sexualized
conversations with S.F., Mr. Isabella stated that they were
consistent with his fantasies he discussed with other adults
on dating and other social sites. He stated that he believed
S.F. was "an adult, a college-aged person who can get up
and move whenever they want." Id. at
1062. He said that his communications with her
were "fantasy related." Id. He testified
that when he asked S.F. if she was "doing
homework," he believed she was a "[c]ollege student
doing homework." Id. at 1031. He further
testified that when he spoke with S.F. about taking her
"somewhere exotic" or getting a hotel room in
Colorado, those proposals were "more fantasy" and
that he made no plans to actually meet S.F. Id. at
Isabella also testified about his interactions with Special
Agent Wright, the UCA who found him on Facebook. When they
began to chat, the UCA stated she was 15 years old. Mr.
Isabella testified that he thought she was
"catfishing" him and did not believe her age.
Id. at 1131. He explained that the UCA changed her
name during their chats, engaged in highly sexualized
conversations, and generally communicated as though she were
an adult. He also stated that he believed his communications
with the UCA were a form of fantasy.
Mr. Isabella testified about his interactions with M.E., an
individual he met on O.K. Cupid. He explained that M.E.'s
profile indicated she was 18 years old but that she
"seemed to vacillate between 17 and 18 at times."
Id. at 1209. He stated that he believed she was 18
through their conversations. Mr. Isabella also testified that
he met M.E. on Valentine's Day, but he did not provide
details of that encounter.
Dr. Mills's testimony
Mark Mills, an expert psychiatrist, testified after watching
Mr. Isabella's testimony and reading the trial
transcripts from the Government's case-in-chief. He
stated that he also reviewed Mr. Isabella's chats with
S.F. and conducted a psychological evaluation of Mr.
Isabella. Based on the foregoing, Dr. Mills opined that Mr.
Isabella (1) was "not a pedophile" and (2) did not
have "the disinhibiting conditions associated with being
sexual with a minor." Id. at 2358. He also
concluded that Mr. Isabella did not have any psychiatric
disorder associated with child exploitation.
Mills further testified about the "internet's effect
on sexual fantasies." Id. at 2358-61. He
explained that online communications can enable sexual
"role playing" and can cause some individuals to
use "sexual aspects of the internet in an addictive
fashion." Id. at 2360-61.
The Government's Rebuttal Case
Government called M.E. for the first time in rebuttal. It
also recalled Special Agent Paul Anderson.
testified over Mr. Isabella's objection. In January 2013,
nine months before his chats with S.F. and 11 months before
his chats with the UCA, Mr. Isabella met M.E., a minor at the
time, on the dating site Plenty of Fish. M.E.
testified that her dating profile said she was 18 years old,
but she informed Mr. Isabella early in their communications
that she was 17. Mr. Isabella and M.E. spoke on the phone,
text messaged, and video-chatted.
Isabella and M.E. had sexual conversations. Mr. Isabella sent
M.E. pictures of his penis. M.E. sent Mr. Isabella pictures
of her breasts and vagina. She testified that Mr. Isabella
"specifically asked for that." ROA, Vol. VIII at
1443. When Mr. Isabella and M.E. had sexual discussions, Mr.
Isabella instructed M.E. to use Skype because he did not want
anyone to find those communications. She said that Mr.
Isabella explained they would both get in trouble because
M.E. was a minor.
Isabella suggested that M.E. come with him to Florida in the
summer. M.E. explained that she hated Florida in the summer,
but she agreed to meet Isabella in person on Valentine's
Day in Ohio. M.E. skipped school and drove 90 minutes to meet
Mr. Isabella at a coffee shop. M.E. stated that she was
wearing her high school uniform at the time. Mr. Isabella
drove M.E. to a truck stop and lifted the edge of her skirt.
She pushed his hand away. They then drove to an abandoned
house where Mr. Isabella tried to put his hand up M.E.'s
skirt. M.E. drove home after their interaction. The two
continued their communications after that day, though they
chatted less frequently.
Special Agent Anderson's rebuttal testimony
Government recalled Special Agent Anderson on rebuttal to
speak about internet searches Mr. Isabella completed in
September 2013. Special Agent Anderson testified that he had
run a forensic analysis on Mr. Isabella's computer. Among
other things, he provided evidence of three web pages that
Mr. Isabella had visited during the same time frame as his
communications with S.F. The web pages reflected that S.F.
(1) attended a Colorado middle school and (2) participated in
a middle school cross country meet on September 22, 2012. The
agent testified that Mr. Isabella also ran a Facebook search
for S.F. on September 19, 2013, shortly after Mr. Isabella
began chatting with S.F.
The Verdict and Sentence
Isabella was convicted of Counts 1 and 2 for his
communications with S.F. and acquitted of Counts 3 and 4 for
his communications with the UCA. Specifically, for Count 1,
Mr. Isabella was convicted of violating and attempting to
violate 18 U.S.C. § 2422(b), which provides:
Whoever, using the mail or any facility or means of
interstate or foreign commerce . . . knowingly persuades,
induces, entices, or coerces any individual who has not
attained the age of 18 years, to engage in prostitution or
any sexual activity for which any person can be charged with
a criminal offense, or attempts to do so, shall be fined
under this title and imprisoned not less than 10 years or for
18 U.S.C. § 2422(b).
Count 2, Mr. Isabella was convicted of attempting to violate
18 U.S.C. § 2251(a) and (e), which provides:
(a) Any person who employs, uses, persuades, induces,
entices, or coerces any minor to engage in, or who has a
minor assist any other person to engage in . . . any sexually
explicit conduct for the purpose of producing any visual
depiction of such conduct or for the purpose of transmitting
a live visual depiction of such conduct, shall be punished as
provided under subsection (e) . . . .
(e) Any individual who violates, or attempts or conspires to
violate, this section shall be fined under this title and
imprisoned not less than 15 years nor more than 30 years . .
18 U.S.C. § 2251.
jury filled out a special verdict form that provided two
potential bases for a conviction under Count 1: (1) coercion
and enticement and (2) attempted coercion and enticement. The
jury checked both boxes, indicating it found Mr. Isabella
guilty of both a completed violation and an attempt violation
of 18 U.S.C. § 2422(b).
statute indicates, § 2422(b) requires an underlying act
chargeable as a "criminal offense." In addition to
the special verdict options described above, the special
verdict form also gave the jury two options for the
underlying criminal sex act: (1) production of child
pornography under federal law and (2) sexual intercourse or
oral sex with a minor. For both the completed offense and the
attempt offense on Count 1, the jury selected the box for
production of child pornography.
district court sentenced Mr. Isabella to two concurrent
sentences of 216 months of incarceration, one for each count.
Mr. Isabella timely appealed.
following sections address Mr. Isabella's issues on
appeal: (A) sufficiency of the evidence for his convictions,
(B) evidentiary rulings, and (C) multiple punishments under
the Double Jeopardy Clause.
Sufficiency of the Evidence
Isabella was convicted of Count 1 for violating §
2422(b) on two grounds: (1) persuading a minor to produce
child pornography and (2) attempting to persuade a minor to
produce child pornography. Because we conclude the evidence
was sufficient to convict Mr. Isabella on the attempt theory,
we do not address whether the evidence also was sufficient to
support a completed offense. Mr. Isabella was convicted of
Count 2 for attempting to persuade S.F. to produce child
pornography, in violation of § 2251(a) and (e). As the
Government notes, "the analysis of the [substantial
step] evidence supporting the two attempt counts is
essentially the same." Aplee. Br. at 24. Accordingly, we
address the sufficiency of the evidence for the attempt
offenses under Counts 1 and 2 together.
Standard of Review
review de novo whether there was sufficient evidence to
support a defendant's convictions, United States v.
Cota-Meza, 367 F.3d 1218, 1223 (10th Cir. 2004), viewing
all the evidence and any reasonable inferences drawn
therefrom in the light most favorable to the government,
United States v. Poe, 556 F.3d 1113, 1124 (10th Cir.
2009). We consider all evidence, circumstantial and direct,
but we do not weigh the evidence or consider the credibility
of witnesses. United States v. Rufai, 732 F.3d 1175,
1188 (10th Cir. 2013). We will reverse a conviction for
insufficient evidence only when no reasonable jury could find
the defendant guilty beyond a reasonable doubt. United
States v. Anaya, 727 F.3d 1043, 1050 (10th Cir. 2013).
Federal child ...