United States v. Orlandella

96 F.4th 71

UNITED STATES, Appellee, v. Brian ORLANDELLA, Defendant, Appellant.

No. 22-1686

United States Court of Appeals, First Circuit

March 20, 2024

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Mark L. Wolf, U.S. District Judge]

John H. Cunha Jr., with whom Charles Allan Hope and Cunha & Holcomb, P.C. were on brief, for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom Joshua S. Levy, Acting United States Attorney, was on brief, for appellee.

Before Kayatta, Thompson, and Rikelman, Circuit Judges.

THOMPSON, Circuit Judge.

A jury found Brian Orlandella ("Orlandella") guilty of sexual exploitation of a minor and transfer of obscene material to a minor. Naturally, this wasn't the outcome he wanted. So now on appeal, Orlandella raises a five-pronged attack, hoping one of his arguments might deal the verdict a fatal blow and result in his acquittal. None of those quintuple attacks, however, comes close to delivering a KO. That is all to say, no reversible error occurred below so we affirm the verdict and Orlandella's convictions.

RECAP

For context, we start with a factual and procedural recap of Orlandella's case. Two things to note right off the bat. First, because Orlandella challenges (among other things) the sufficiency of the evidence against him and the denial of a motion to suppress, we recount the facts in the light kindest to the verdict and the district court's suppression ruling. United States v. Burgos-Montes, 786 F.3d 92, 99 (1st Cir. 2015). And second, our recap hits only the highlights necessary to understand the issues on appeal. Any other remaining details will be provided elsewhere on an as-needed basis.

1. The Crime

In May 2018, Orlandella was using the Kik messenger app¹ under the username of "gianninyny." Two members of a group titled "Littles and Doms," Orlandella and another user ("Minor A"),² under the username of "pineapples1118" and display name of "Daddy's little princess," exchanged many private, one-on-one messages. While their messages (which were explicitly sexual throughout) began on May 16, 2018, the messages most relevant to Orlandella's convictions started on May 18.

After Orlandella initiated a conversation with Minor A, the following exchange took place around midnight Eastern Standard Time ("EST") on May 18:³

pineapples1118: When I get home im taking a bath

gianninyny: Mmmm can u take videos for daddy?

pineapples1118: Maybe

gianninyny: Mmm good girl

pineapples1118: [Sends video and image files not played for the jury]

gianninyny: .mmmmmm omfg ...

gianninyny: Ur hot af

gianninyny: Would u really fuck daddy?

...

pineapples1118: And yes I would[.]

About an hour later, this next exchange took place:

pineapples1118: What do you want me to do

gianninyny: Help Daddy cum

gianninyny: Help Daddy cum

pineapples1118: How I need hel[p]

gianninyny: I thought u we're Daddy's lil teen slut

pineapples1118: Help

gianninyny: I'll help u with pics and videos if u Wana cum too ok?

Later that same day, Minor A messaged Orlandella, "Me and my other daddy are not together" and "U are the only daddy."

The most relevant exchanges pick back up on May 19. That day, again shortly after midnight EST, Orlandella and Minor A exchanged the following messages:

pineapples1118: Hey

gianninyny: Mmmmm

gianninyny: Who did u take those for tho

pineapples1118: U

gianninyny: U should make Daddy a video

pineapples1118: Idk

gianninyny: Make dada a video?

gianninyny: Make dada a video?

Soon thereafter, Minor A mentioned that she had her "track meet ... in 5 days," to which Orlandella responded by asking her whether "[she] ha[d] any pics or videos of [her] running?" Around 12:30 p.m. EST, also on May 19, Orlandella sent Minor A three videos of him masturbating and messaged, "Daddy made u some videos last night" and "Hope u enjoy ... [.]" In these videos, Orlandella can be seen wearing a camouflage cap and blue bracelet on his wrist. Significantly, at about 5:30 p.m. EST on May 19, Orlandella acknowledged that he was substantially older than Minor A, who admitted she was underage:

gianninyny: Baby how old are u pineapples1118: 14

pineapples1118: Why

gianninyny: Ubsur ur ok with my age? I'm like WAY older

pineapples1118: Ik and yea

pineapples1118: Yeah

gianninyny: What's my age?

pineapples1118: I dont remember but us it around 30[.]⁴

Moving on to May 20 and 21. In a conversation initiated by Orlandella around 11:00 p.m. EST on May 20 and continuing through 1:00 a.m. EST on May 21, the following messages were exchanged:

gianninyny: Hi

gianninyny: Wyd?

pineapples1118: Just got out of tub

gianninyny: Yea???? Can Daddy see?

pineapples1118: I used my brush hehe

gianninyny: Mmmm yea? Did u make any videos?

A little over a minute later, Minor A responded, "Yeah," and then sent Orlandella a 14-second video of a pubescent female partially submerged in water in a white bathtub, showing only the female's pubic area and upper thighs. In the video, the female can be seen repeatedly inserting the handle of black hairbrush into her vagina ("hairbrush video").⁵ Less than a minute later, Orlandella messaged Minor A, "Mmmm show dada" and "Plzzzz." In response, Minor A sent Orlandella the hairbrush video again and a picture of herself sitting in a white bathtub with her face and breasts visible ("bathtub picture").⁶

After receiving both the hairbrush video and bathtub picture, Orlandella asked Minor A for whom had she taken the video and picture:

gianninyny: Wait. Who dafuq u take those for?

pineapples1118: No one I was waiting for u

gianninyny: Mhm

gianninyny: Why didn't u just send them to me

pineapples1118: Idk

gianninyny: Ok

gianninyny: Send more

pineapples1118: I got out I was being rushed

gianninyny: Send the vids

Seconds later, Minor A sent Orlandella the hairbrush video again.

Their conversation did not end there. Orlandella then messaged Minor A, "Take a pic for daddy" and "Did u cum?" After Minor A responded, "Yeah," Orlandella messaged her, "I Wana seeeee" and "Mmmm what a good girl." Less than thirty minutes later, Orlandella sent Minor A a picture of an erect penis (again with a blue bracelet visible on Orlandella's wrist), to which she responded, "I wanna suck." He followed up by telling her to "[m]ake a video of [her] sucking [her] fingers." Minor A complied less than a minute later and sent Orlandella a video of her sucking her thumb ("thumb video"). After Orlandella noted that "the video was black," Minor A resent the thumb video with better visibility (including of her face), to which Orlandella responded, "Mmmm good girl."

Within twenty minutes, Orlandella messaged Minor A, "Daddy needs his lil teen slut to make him cum rn" and sent her a video of him touching his penis over his shorts (again with a blue bracelet visible on his wrist). Directly after him sending that video, they had the following exchange:

pineapples1118: Mmm yes

gianninyny: U like

pineapples1118: Yes

pineapples1118: Always do

gianninyny: Good girl

gianninyny: Am I the hottest daddy ever?

pineapples1118: Yed

pineapples1118: Yes

gianninyncy: Baby. Help Daddy cum

pineapples1118: How

gianninyny: I want nudes ... And for u to talk like Daddy's dirty slut ok?

As she did before, Minor A responded by resending the hairbrush video. Orlandella responded with "Mmm yes," but lamented that she had "already sent that tho."

As their conversation continued, Orlandella asked Minor A, "Where [she] want[ed] Daddy's cum," to which she followed up with a picture that could not be clearly made out and with a message saying "[i]n mouth." Displeased with that hard-to-see picture, Orlandella complained, "Baby more light ... And video it pussy." Again, Minor A complied with Orlandella's request and sent him a picture of a naked, pubescent female sitting on a toilet, using two of her fingers to spread her labia ("digit picture").⁷ In quick, back-to-back messages, Orlandella responded with "Mmmmm good girl," "Such a good lil teen slut," and "Make daddy a video of that tight teen cunt." Slightly more than a minute later, Minor A complied once more and sent him a 14-second video of a naked, pubescent female sitting on a toilet, showing only her genital area. In the video, the female can be seen touching her genitals and inserting her fingers into her vagina ("digit video").⁸ Still wanting more videos and pictures of Minor A, Orlandella responded, "Mmmmm don't u stop" and "Plz more." Although Orlandella and Minor A exchanged several more messages between each other, the messages most relevant to his convictions end there, and the conversation ended at approximately 1:00 a.m. EST on May 21.

2. The Investigation in Texas

It wasn't long before a criminal investigation was underway because, later that night, while Minor A and her family were staying at a motel in Beaumont, Texas, Minor A's brother woke their mother and told her to open Minor A's phone. Finding inappropriate messages, videos, and pictures on Minor A's cellphone, and scared for her daughter's safety, Minor A's mother held onto the cellphone overnight. The next day, the family returned to their home in Port Neches, Texas, and Minor A's mother contacted the police department there and gave Officer Scott Thompson ("Officer Thompson") Minor A's cellphone, along with the cellphone of Minor A's twelve-year-old sister ("Minor B").⁹ Minor A's mother told Officer Thompson that Minor A had been using the cellphone to message older men and then gave him permission to search both girls' cellphones.

Back at the Port Neches police station, Officer Thompson turned over both cellphones to then-Detective (and by trial, Sergeant) Cheri Griffith ("Sergeant Griffith"). After getting Minor A's mother's permission to download the content on the cellphones, Sergeant Griffith scrolled through Minor A's Kik app, observed online messages (including videos and pictures) exchanged between Minor A and gianninyny, took screenshots of the messages, and recorded the videos with...