United States v. Russell
2011 U.S. App. LEXIS 22649
| 7th Cir. | 2011Background
- Dale Russell, divorced father, photographed his minor daughters and created websites selling access to nude images, leading to four federal charges under 18 U.S.C. § 2251(a).
- Photos were taken in 2004 at Russell’s residence and Spectrum Gym; images included nude views of Jane Doe 1 (b. 1992) and Jane Doe 2 (b. 1994).
- Indiana authorities discovered the images abroad on a Canadian computer and connected Russell to interstate/foreign commerce via cameras and websites; charges brought in 2008.
- District court admitted one daughter’s testimony about prior inappropriate touching, excluded nudism expert and nudist photography books, and gave Dost-factor guidance to assess lasciviousness.
- At trial Russell testified to nudism and his photography work; jury convicted on all four counts; district court sentenced him to 456 months (thirty-eight years).
- Appeal challenged evidentiary rulings, flight instruction, and sentence; Seventh Circuit affirmed convictions and sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of prior touching testimony | Russell sought exclusion of prior acts as remote and prejudicial | Jane Doe 1 testimony relevant to motive/intent | Admissible under Rule 404(b) for motive/intent; not an abuse of discretion |
| Exclusion of nudism expert and books | Expert and books would contextualize nudism background | Not central to charged photographs; risk of confusion | No abuse; evidence excluded kept focus on charged images |
| Flight instruction admissibility | Flight evidence supports consciousness of guilt | Timing weakens inference of flight as evincing guilt | Instruction proper; timing supports inference of consciousness of guilt |
| Dost factors and defendant’s intent | Dost factors help evaluate lasciviousness | Intent may contextualize images; not sole basis for conviction | Court properly instructed on factors and allowed contextual evidence |
| Sentencing reasonable under 3553(a) | Above-Guidelines punishment warranted by harm | Term below life; substantial deterrence; mitigators present | Sentence within discretionary bounds; not substantively unreasonable |
Key Cases Cited
- United States v. Knox, 32 F.3d 733 (3d Cir. 1994) (definition of lascivious exhibition; focus on sexual stimulation)
- United States v. Griesbach, 540 F.3d 654 (7th Cir. 2008) (narrowing what constitutes lascivious nudity)
- United States v. Dost, 636 F.Supp. 832 (S.D. Cal. 1986) (list of factors for lascivious display (in Dost))
- United States v. Burt, 495 F.3d 733 (7th Cir. 2007) (motive/context for photographs of nude children)
- United States v. Sebolt, 460 F.3d 910 (7th Cir. 2006) (admissibility of prior acts to show motive in child-porn case)
- United States v. Frabizio, 459 F.3d 80 (1st Cir. 2006) (permission to consider photographer’s intent; test for lasciviousness)
- United States v. Noel, 581 F.3d 490 (7th Cir. 2009) (use of Dost factors and its permissibility)
- United States v. Jackson, 572 F.2d 636 (7th Cir. 1978) (flight evidence prudence and instructional guidance)
- United States v. Skoczen, 405 F.3d 537 (7th Cir. 2005) (standard for flight instruction admissibility)
- United States v. Levine, 5 F.3d 1100 (6th Cir. 1993) (flight timing and consciousness of guilt analysis)