## Facts

- Gregory C. Kapordelis, a Georgia anesthesiologist, engaged in sexual exploitation of minors during domestic and international travel and accumulated child pornography.
- In 2001, while in Greece with his eleven-year-old cousin, he photographed the child’s genitalia and anus.
- In 2002, he met a fourteen-year-old patient, later hired him for chores, and took him to a North Carolina condominium where sexual abuse occurred.
- In 2004, minors in Russia reported molestation and that Kapordelis created digital images and video; U.S. authorities were alerted.
- Searches of Kapordelis’s residence and electronic media uncovered a large collection of child pornography, including images he produced.
- He was convicted of producing child pornography (18 U.S.C. § 2251(a)), receiving child pornography (18 U.S.C. § 2252A(a)(2)(A)), and possessing child pornography (18 U.S.C. § 2252A(a)(5)(B)).
- The district court imposed a total sentence of 420 months’ imprisonment.

## Issues

1. Whether Counts 1 and 3 of the indictment were legally sufficient as to the interstate/foreign commerce nexus and venue.
2. Whether the district court erred in denying a Franks hearing and suppressing evidence based on alleged false statements or material omissions in warrant affidavits.
3. Whether testimony about Kapordelis’s solicitation of sex from underage boys in the Czech Republic was admissible under Federal Rule of Evidence 404(b) and Rule 403.
4. Whether applying the 2003 Sentencing Guidelines (rather than the 2002 manual) violated ex post facto limits.
5. Whether the vulnerable-victim enhancement under U.S.S.G. § 3A1.1 was properly applied.
6. Whether applying multiple image-quantity enhancements under U.S.S.G. § 2G2.4 constituted impermissible double counting.
7. Whether the district court abused its discretion by imposing an upward departure.
8. Whether accepting a written victim impact statement and imposing a 420-month sentence was procedurally proper and substantively reasonable under 18 U.S.C. § 3553(a).

## Decision

- The Eleventh Circuit affirmed the convictions and the 420-month sentence.
- The indictment sufficiently tracked statutory language and alleged the required interstate/foreign commerce elements; venue and proof challenges did not warrant dismissal.
- Kapordelis failed to make the substantial preliminary showing required for a Franks hearing; the affidavits, viewed as a whole, supported probable cause.
- The Czech Republic solicitation evidence satisfied the circuit’s 404(b) test and survived Rule 403 balancing; admission was not an abuse of discretion.
- Use of the 2003 Guidelines did not violate ex post facto principles because it did not increase punishment beyond what applied at the time of the offenses.
- The vulnerable-victim enhancement was supported by evidence of the victim’s susceptibility, including age and a relationship of trust.
- The image-related enhancements were cumulatively applicable; the Guidelines contemplated escalating increases for very large collections.
- The upward departure was supported by aggravating circumstances not adequately accounted for by the Guidelines.
- The district court could consider a written victim impact statement, and the sentence was reasonable in light of the seriousness of the offenses, deterrence, and protection of the public.

## Legal Principles

- An indictment is generally sufficient if it tracks the statutory language and alleges each element, including jurisdictional commerce elements where required.
- A Franks hearing requires a substantial preliminary showing that the affiant intentionally or recklessly included false statements or omitted material facts, and that the misrepresentation was necessary to probable cause.
- Rule 404(b) permits other-acts evidence for non-character purposes (such as intent, motive, or absence of mistake) if supported by sufficient proof and not substantially outweighed by unfair prejudice under Rule 403.
- Under U.S.S.G. § 1B1.11, the sentencing court typically uses the manual in effect at sentencing unless doing so would create an ex post facto problem.
- U.S.S.G. § 3A1.1 applies when a victim is unusually vulnerable or particularly susceptible to the offense, and the finding is reviewed for clear error.
- “Double counting” is permitted when the Sentencing Commission intended cumulative application and the provisions address different aspects of offense seriousness.
- Upward departures are permissible when the court identifies record-supported aggravating circumstances not adequately reflected in the applicable range and explains the basis for departure.
- A sentencing court may consider victim impact information and a within-range sentence, after considering § 3553(a), is reviewed for substantive reasonableness under an abuse-of-discretion standard.

## Conclusion

The Eleventh Circuit upheld Kapordelis’s child-pornography convictions and 35-year sentence, concluding that the indictment, searches, evidentiary rulings, Guidelines applications (including enhancements and departure), and the sentencing process and outcome complied with governing constitutional, evidentiary, and sentencing standards.


United States v. Kapordelis, 569 F.3d 1291 (11th Cir. 2009)