U.S.A. v. Angle

Page 326

234 F.3d 326 (7th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Ralph Wayne Angle, Defendant-Appellant.

No. 99-3349

In the United States Court of Appeals For the Seventh Circuit

Argued May 11, 2000

Decided December 6, 2000

Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:98 CR 37 RL--Rudy Lozano, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Coffey, Evans, and Williams, Circuit Judges.

Williams, Circuit Judge.

Following a four-day bench trial, Defendant Ralph Angle was convicted of several crimes relating to his interest in child pornography and his pursuit of a minor for sexual gratification. Through a combination of sentencing enhancements and an upward departure from the applicable guideline range, the district court sentenced Angle to just over 27 years' imprisonment. Angle challenges his convictions and sentence on a variety of grounds. For the reasons stated below, we affirm Angle's convictions but remand for resentencing.

I

After investigating his children's use of the Internet, Ted Gross, a Colorado resident, contacted the Federal Bureau of Investigation (FBI) and reported several computer screen names of individuals using the Internet to engage in sexually-explicit conversations with children. At the time Gross contacted the FBI, in August 1997, the agency was conducting its own nationwide investigation against individuals who used the Internet to lure children into sexual relationships. As part of its investigation, the FBI traced one of the reported computer screen names, "Butch 8003," to Angle, who resided in Indiana. The FBI then decided to enhance the computer identity, "Jeff/Wolf One," belonging to the Gross children.¹ During on-line conversations, an undercover agent indicated that Jeff/Wolf One was from a troubled home situation and that he had been forced to relocate with his father. Angle, using his computer screen name Butch 8003, continued to correspond with Jeff/Wolf One. Besides having a number of sexually-explicit conversations with Jeff/Wolf One, Angle repeatedly told Jeff/Wolf One that he loved him and that he was willing to visit Jeff/Wolf One in Colorado. Angle also asked Jeff/Wolf One for his telephone number and offered to send Jeff/Wolf One a birthday gift or money if he would provide Angle with his address.

On November 6, 1997, Angle called a telephone number provided by the FBI and spoke to an undercover agent posing as Jeff/Wolf One. During the telephone conversation, Angle told Jeff/Wolf One that he wanted to buy Jeff/Wolf One a camera so that Jeff/Wolf One could take pictures of himself to send to Angle. Angle also told Jeff/Wolf One that he was willing to visit Colorado to take Jeff/Wolf One shopping. In addition, Angle made several attempts to obtain Jeff/Wolf One's address by telling Jeff/Wolf One that he wanted to send him a birthday gift; Angle believed that Jeff/Wolf One had recently celebrated his fourteenth birthday.

Around this time, Angle, in addition to expressing interest in Jeff/Wolf One, desired to supplement his collection of child pornography. On November 7, 1997, federal government investigators sent electronic mail ("e-mail") messages to Angle and other customers of Jake's Photo Service and/or Metro Comp Services, a child pornography distributor based in Denver, Colorado,² advising them that the business had resumed operations and was willing to send interested customers an updated video list.³ Responding to Angle's request, government investigators sent via e-mail an updated video list including graphic descriptions of the sexual activity depicted in each video, as well as the age and sex of the children. In December 1997, Angle sent an e-mail message to Jake's Photo Service indicating that he wanted to purchase five videotapes and that his order was forthcoming.

On January 7, 1998, Angle mailed a money order payable to Jake's Photo Service in the amount of $161. Three days later, he sent an e-mail message to Jake's Photo Service confirming that the money order was payment for five videotapes, which he identified by title; all the titles were advertised as depicting children under the age of 17 engaging in graphic sexual activity. In the confirmatory e-mail, Angle requested that his order not be shipped until January 23, 1998, because he planned to be in Mexico for eight days to "play with the boys." In a follow-up e-mail sent to Jake's Photo Service on January 14, 1998, Angle reiterated that he planned to visit Mexico and boasted about "[h]av[ing] boys lined up . . . and waiting for [his] arrival."

On January 26, 1998, as he attempted to re-enter the United States from Mexico, the United States Customs Service stopped Angle and searched his luggage. The Customs agents found a video camcorder and three undeclared videotape cassettes in Angle's luggage. Angle allowed the Customs agents to view the videotape cassettes, at least one of which appeared to contain images of child pornography. The next day, Angle sent an e-mail message to Jake's Photo Service, stating "do not ship that order. More latter [sic]." A few days later, on February 3, 1998, federal and local law enforcement officers executed a search warrant at Angle's residence seeking child pornography in various forms. The officers found a child pornography videotape titled "Jap Boys/Mexican Boys," hidden in the basement ceiling, which depicted children between the ages of 10 and 15. The officers also found a large quantity of computer related items such as diskettes, zip disks, and a computer monitor.

On February 26, 1998, Angle was arrested. The grand jury later returned a superseding indictment charging Angle with attempted receipt of child pornography, in violation of 18 U.S.C. sec. 2252(a)(2) (Count I),⁴ possession of child pornography, in violation of 18 U.S.C. sec. 2252(a)(4)(B) (Count II),⁵ and attempted solicitation of a minor, via the Internet and telephone, to engage in sexually prohibited activity, in violation of 18 U.S.C. sec. 2422(b) (Count III).⁶ While initially pleading not guilty to the charges, Angle later filed a motion to enter into a plea bargain, which he subsequently withdrew. Angle then brought a motion to suppress evidence obtained from the search of his residence, which the district court denied. The court also made certain evidentiary rulings in favor of the government relating to the admissibility of Angle's prior convictions and his uncharged possession of child pornography on January 26, 1998. The case then proceeded to trial.

In support of its case on Counts I and II, the government offered evidence that Angle had ordered child pornography videotapes from Jake's Photo Service. The government also introduced into evidence the videotape cassette, computer diskettes, and zip disks confiscated from Angle's residence. While the videotape cassette obtained during the search undeniably contained child pornography, the government called Thomas McDonnell, an information technology specialist with the United States Postal Inspection Service, to testify about pornography that had been erased or deleted from the confiscated computer diskettes and zip disks.

McDonnell testified that since the confiscated diskettes and zip disks had not been reformatted, the deleted pornography files contained on them were still recoverable. McDonnell explained that when information is deleted from a diskette (or zip disk) the computer operating system does not actually erase the information until it is overwritten by new information. McDonnell stated that deleted information can often be recovered by using a computer utilities program, such as Norton Utilities, which is commonly available at computer software stores. Using the Norton Utilities program, McDonnell demonstrated how the deleted pornography files were capable of being recovered on the confiscated diskettes.

The government introduced into evidence at least fourteen separate diskettes (each diskette holding multiple pornographic images) that were found to contain recoverable child pornography files. The government also introduced hard copy images from the computer files recorded on each diskette. The government further introduced into evidence a report prepared by McDonnell which identified, among other things, computer files containing visual depictions of minor children engaging in graphic sexual behavior recovered on the confiscated diskettes.⁷ Neither the videotape cassette nor the computer diskettes confiscated from Angle's residence were manufactured in the State of Indiana, and the zip disks were assembled in Taiwan.

Finally, Dr. Phillip Merk, a pediatrician, reviewed the videotape cassette, computer diskettes, and zip disks confiscated from Angle's residence and noted that minor children were depicted on all those items.

With respect to Count III,⁸ the government introduced into evidence records of various conversations Angle had with Jeff/Wolf One (i.e., Richard M. Potocek, the undercover FBI agent posing as Jeff/Wolf One) over the Internet and telephone. Angle had a number of sexually-explicit conversations with Jeff/Wolf One. In light of those conversations, the government argued that Angle had attempted to cultivate a sexual relationship with Jeff/Wolf One (e.g., by expressing affection for Jeff/Wolf One and enticing him with gifts and money). The government also called Potocek to testify about his experience in investigating child sexual predators and to explain his role in the investigation against Angle. Potocek testified that child sexual predators typically target children who are lonely and disconnected from a normal social life. He stated that it was not uncommon for a predator to obtain a child's address and simply appear at the address without warning. Potocek testified that, in his view, Angle was a serious threat to children.

Angle testified in his own defense at trial. He admitted...