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United States v. Isabella

United States Court of Appeals, Tenth Circuit

March 12, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
RANDE BRIAN ISABELLA, Defendant-Appellant.

          Appeal from the United States District Court No. 1:14-CR-00207-CMA-1 for the District of Colorado

          Ronald Gainor, Longmont, Colorado, for Defendant - Appellant.

          J. Bishop Grewell, Assistant U.S. Attorney, (Robert C. Troyer, United States Attorney with him on the brief) Denver, Colorado, for Plaintiff - Appellee.

          Before HARTZ, MATHESON, and EID, Circuit Judges.


         Rande 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 affirm.[1]

         I. BACKGROUND

         A. Factual Background

         In 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. Isabella.

         B. The Indictment

         A 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.[2]
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.

         ROA, Vol. I at 13-15.

         C. The Trial

         Mr. 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.

         1. The Government's Case-in-Chief

         The 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, [3] Paul Anderson, and Vanessa Wright.

         a. S.F.'s testimony[4]

         S.F. 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.

         i. Age discussions

         S.F. 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.

         S.F. 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." [5] Id. at 285-86.

         ii. Meeting discussions

         Mr. 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.

         iii. Sexual discussions

         S.F. 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).

         iv. Picture discussions and exchanges

         When 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.

         Mr. 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.

         Eventually, 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").[6] 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.

         Mr. 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 multiple occasions.

         v. Cross-examination

         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 1967.[7]

         b. Special Agent Vanessa Wright's testimony

         Vanessa 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.

         c. Special Agent Paul Anderson's testimony

         Paul 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 into evidence.

         Special 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.

         2. The Defense's Case

         Mr. Isabella testified over the course of three days. His expert, Dr. Mark Mills, was the only other witness who testified for the defense.

         a. Mr. Isabella's testimony

         Mr. 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."[8] 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.

         Mr. 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 them.

         When 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.[9] 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 1012-13, 1047-48.

         Mr. 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.

         Finally, 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.

         b. Dr. Mills's testimony

         Dr. 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.

         Dr. 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.

         3. The Government's Rebuttal Case

         The Government called M.E. for the first time in rebuttal. It also recalled Special Agent Paul Anderson.

         a. M.E.'s testimony

         M.E. 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.[10] 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.

         Mr. 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.

         Mr. 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.

         b. Special Agent Anderson's rebuttal testimony

         The 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.

         D. The Verdict and Sentence

         Mr. 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 life.

18 U.S.C. § 2422(b).

         For 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.

         The 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).

         As the 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.

         The district court sentenced Mr. Isabella to two concurrent sentences of 216 months of incarceration, one for each count. Mr. Isabella timely appealed.


         The 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.

         A. Sufficiency of the Evidence

         Mr. 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.

         1. Standard of Review

         We review de novo[11] 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).

         2. Legal Background

         a. Federal child ...

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