Appeal from the United States District Court for the District of Montana Donald W. Molloy, Chief District Judge, Presiding D.C. No. CR-07-00004-DWM.
The opinion of the court was delivered by: Rawlinson, Circuit Judge
Argued and Submitted February 2, 2009 -- Portland, Oregon
Before: Richard A. Paez and Johnnie B. Rawlinson, Circuit Judges, and Bruce S. Jenkins,*fn1 District Judge.
Appellant William Gallenardo (Gallenardo) was convicted of sexual exploitation of a child and possession of child pornography. Gallenardo contends that the district court erred in denying his motion to dismiss the indictment because his intrastate possession of child pornography cannot serve as the requisite interstate commerce nexus for federal jurisdiction.
Additionally, Gallenardo challenges the district court's denial of his motion for a mistrial on the basis of allowing the jury to hear an audiotape that mentioned other sexual allegations against Gallenardo.
Gallenardo also contends that the district court erred in imposing a mandatory life sentence pursuant to 18 U.S.C. § 3559(e). Gallenardo posits that 18 U.S.C. § 3559(e) was inapplicable, as 18 U.S.C. § 2251(e) provides the appropriate recidivist penalty. Gallenardo maintains that his prior Montana conviction for sexual assault cannot serve as the requisite predicate offense for 18 U.S.C. § 3559(e) because it did not involve interstate conduct.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the district court's judgment.
Gallenardo was indicted for sexual exploitation of a child in violation of 18 U.S.C. § 2251(a); possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(b); and a related forfeiture count.
The district court denied Gallenardo's motion to dismiss the indictment premised on Gallenardo's argument that his intrastate possession of child pornography was insufficient to establish federal jurisdiction. United States v. Gallenardo, 540 F. Supp. 2d 1172, 1176 (D. Mont. 2007).
Trial Testimony and Gallenardo's Motion for a Mistrial
Linda Elaine Jollo (Jollo), Gallenardo's ex-wife, testified concerning Gallenardo's interaction with L.P., a male juvenile under the age of eighteen who was "a laborer in [Gallenardo's] construction business." Jollo stated that in May, 2005, she was searching for evidence of Gallenardo's suspected infidelity. She searched Gallenardo's pickup truck and found Gallenardo's briefcase. Inside the briefcase, Jollo found a videotape and four camera disks. She viewed one of the disks and saw "[p]ictures of [L.P.] with his clothes off." Some of these images were "sexually explicit." Jollo viewed another disk and found similar images of L.P. Jollo recognized the background in the images as the basement of her home.
When Jollo informed Gallenardo that she had found the pictures, Gallenardo got upset. He went into the house, and retrieved two manila envelopes that "were the same LX-2 that was on the disks."
Gallenardo demanded that Jollo give him the disks she had. When Jollo told Gallenardo that she did not have the disks with her, Gallenardo "started to threaten [Jollo], but he didn't complete the threat." Gallenardo burned the disks and videotape in a burn barrel.
L.P. testified that Gallenardo lived in L.P.'s uncle's apartment, which was located above L.P.'s residence. L.P. estimated that he was fourteen when he started to visit Gallenardo at the house Gallenardo later shared with Linda, and when he started working for Gallenardo. L.P. was "[p]robably 16 or 15" when Gallenardo "was taking the video or taking the pictures." According to L.P., the pictures were "naked pictures of [L.P.] and of [Gallenardo]." L.P. admitted that when confronted by Jollo, he lied when he told her that Gallenardo had not touched him.
L.P. stated that Gallenardo tricked him into taking the pictures by promising that "this would be... the only and... the last time it ever happened." L.P. stated that the pictures were taken in Gallenardo's "basement, lower bedrooms." Gallenardo asked L.P. to touch himself and to shave his private parts.
L.P. also related that Gallenardo took "[n]aked pictures" of L.P. while L.P. was "sitting on [Gallenardo's] motorcycle." According to L.P., he did not feel "like [he] had a choice in the pictures." Gallenardo would touch L.P. "[o]n [his] penis" while taking the pictures. Gallenardo also asked L.P. to touch him. Gallenardo videotaped L.P. removing his clothing, and L.P. testified that "the touching [also] occur[red] on the videotape."
Detective Larsen testified that she "receiv[ed] information alleging that William Gallenardo had taken sexually explicit pictures of [L.P.], who was under the age of 18." According to Detective Larsen, L.P. was sixteen years old at the time she interviewed him. Detective Larsen subsequently arranged for a recorded telephone call to be made to Gallenardo. During Detective Larsen's testimony, the recorded telephone call was played.*fn2 In the conversation, L.P. stated that he was scared because "Kelly's trying to - to get me to talk to the police.... Nathan said something. I don't know what he said though." Gallenardo responded:
Thanks for calling, it's really important that you know this. Now, Kelly has went off the deep end emotionally, psychotically, and she has got Nathan and her little son to start to change their stories, which means that - you know - she's just influenced them. And with that influence, she - they say that I brushed his pants or tried to put my hands down his pants. Now, that's absolutely not true and so she's been talking to the police and the police say they have to build a case and find people to say that I molested them and the best they can get Nathan to say is that I might have maybe tried to put my hands down his pants. And slowly, over the course of the last year, it's been changing, his story has been giving way to like pressure. Now, that's called - that [sic] wrong in the law; it's wrong physically, and stuff like that. Now, they finally after a year, they're - they're starting to make it so that her little son - oh, I forget the littlest one's name - is starting to (INAUDIBLE) and go yeah, maybe he - oh, hi mom, they said I - I had both boys sitting on my lap telling them sex stories that they can't really describe what the sex stories [sic] and so they're - they just got the kids going in circles and getting crazy. And all you got to do is say, Kelly, nothing happened and leave it at that.
When L.P. asked about the pictures, Gallenardo stated "[t]here's nothing about the pictures, they're gone, they're burned. There's no nothing. It's a bluff. And they're doing that, adults will ...