UNITED STATES of America, Plaintiff-Appellee, v. Dale RUSSELL, Defendant-Appellant.
No. 10-2259.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 7, 2011. Decided Nov. 10, 2011.
662 F.3d 831
ROVNER, Circuit Judge.
According to Payne, however, this inference that he knew what penalties were possible is unsound because he had turned down plea offers that would have produced a sentence as low as 30 years. Why reject 30 years only to enter a plea that led to a sentence of 50 years? Payne‘s current lawyers ask us to answer that question by concluding that Payne must have believed that the maximum sentence was lower than 30 years. That‘s not necessarily so, however. The state judge told him that his sentence could be as low as 20 years; perhaps Payne hoped for that outcome, which would have been better than 30 years with certainty. Or perhaps the approach of trial concentrated the mind, and Payne was honest when he told the judge that he wanted to avoid embarrassing the victims (and himself) at trial. It is unnecessary to decide why Payne turned down the 30-year offer only to enter a plea that lacked a cap on the sentence. The record shows us that Payne knew that his time in prison could be 50 years (or more with consecutive sentences). No more is necessary to show that the judgment must be AFFIRMED.
Gayle L. Helart (argued), Attorney, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.
Jessie A. Cook (argued), Attorney, Terre Haute, IN, for Defendant-Appellant.
Before ROVNER and WOOD, Circuit Judges, and GOTTSCHALL, District Judge.*
ROVNER, Circuit Judge.
I.
Russell and his wife Dawn Russell (Dawn) divorced in 1998 after eight years of marriage. Dawn was granted custody of their three children, but Russell retained visitation rights and saw them regularly.
Russell had worked for a number of years as a technician at Master Lab, a photography studio in Indianapolis. After he left the company‘s employ in 1996, he engaged in freelance photography work of his own. Some years later, he began to design and maintain Internet websites for child models. Russell also held a coaching job at Spectrum Gymnastics in the Indianapolis suburb of Carmel.
In mid-October 2004, Dawn learned that photographs of her two daughters, to whom we shall refer as Jane Doe 1 and Jane Doe 2, had been posted on two Internet websites: kasey-model.com and october-model.com. The photographs of Jane Doe 1, born in 1992, included pictures of her dressed in a bra and panties, thong underwear, a swimsuit, and pajamas. Jane Doe 2, born in 1994, had been photographed wearing a bra and panties and a swimsuit. Dawn did not recognize the garments her daughters were wearing in the photographs and had neither authorized nor previously known anything about the websites on which the photographs were posted. The subject was raised at a child support hearing which took place in Indiana family court on October 19, 2004. Russell acknowledged at that hearing that he had taken the photographs of his daughters and ran the two websites on which they were posted. The judge ordered him to shut down both of the websites.
The discovery of the photographs prompted local authorities to commence an investigation of Russell. Although police attempted to track down the websites Russell had created, they were unable to find and access those sites. Eventually, a search warrant for his residence was executed in June 2005, and Russell was questioned. During the interview, Russell admitted having filmed a videotape of his daughters in the nude at a gymnasium. When asked whether he had taken any other nude photographs of his daughters, Russell, according to one of the agents present, said that he did not recall any. (Russell himself would later testify that he refused to answer that question.) No charges were pursued against Russell at that time.
In February 2007, a detective with the Indiana State Police learned that a series of nude photographs of Jane Doe 1 and Jane Doe 2 had been discovered by Canada‘s National Child Exploitation Coordination Center on a computer belonging to a Canadian citizen. The photographs were sent to the Indiana Internet Crimes Against Children Task Force for investigation. These photographs would later form the basis for federal charges against Russell.
Before the trial commenced, it was clear that the central issue in the case would be whether the charged photographs of Jane Does 1 and 2 portrayed “sexually explicit conduct,” see
In his pretrial filings, Russell indicated that he intended to offer a variety of evidence on nudism and nude photography. Russell explained that he and his current wife (he remarried in 2004) were practicing nudists, that they had taken Russell‘s daughters to nude resorts over the years, and that he had photographed his children in the nude. R. 29 at 1-2. Beyond his own testimony on those subjects, Russell sought to present the expert testimony of Jawn Bauer, an attorney who had served as legal counsel for both national and regional nudist organizations. Russell contended that Bauer qualified as an expert in view of his “specialized knowledge [of] the nudist sub-culture in America, as well as the core values, philosophy and lifestyle of nudists....” R. 31 at 1. Russell anticipated that Bauer would describe the nudist movement, the demographics of practicing nudists, and the benefits attained by people who embrace the nudist philosophy; that he would “help[] the jury to see that nudist resorts and nudist beaches are not simply some haven for sexual perversion“; and that he would “corroborate the defense theory that the charged images portray simple nudity, and were never intended or designed to elicit a sexual response.” R. 29 at 8. In support of that defense theory, Russell also sought to introduce into evidence a number of published works of photography containing photographs of nude families and children as evidence of artistic works that had influenced his own photography and to show that he had no intent to create sexually suggestive photographs of his daughters. R. 29 at 7.
The government, on the other hand, sought the admission of evidence that Russell had sexually molested Jane Doe 1 on three occasions, in order to show that the charged photographs were, in fact, meant to excite lustfulness or sexual stimulation in the viewer. The incidents of molestation had taken place one to two years before Russell took the photographs underlying the indictment. Jane Doe 1 had not disclosed these incidents until three weeks before Russell‘s trial was scheduled to begin; until that time, she had denied repeatedly that her father had ever touched her inappropriately. The government contended that Jane Doe 1‘s testimony concerning these incidents was admissible in its case-in-chief pursuant to
The district court permitted Russell to elicit evidence concerning his practice of nudism, and his inclusion of his daughters in that practice, but excluded his proffered expert along with any evidence related to nude photography and nude photographs other than those he took of his own children. R. 74 at 18. “This case is not about nudism,” the court stated. R. 74 at 18. “This is about these photos and the defendant‘s actions, alleged actions, in creating them, whatever the purpose was....” R. 74 at 18. The court planned to instruct the jury that one of the factors relevant to whether the charged photos reflected a lascivious display of the genitals was whether the display was intended or designed to elicit a sexual response in the viewer. The court agreed that Russell‘s practice of nudism “may have some marginal relevance” to that factor, although “it
So with those limitations, you can raise the issue that he is a nudist, and that he participated in those activities, and that he did it with his children, and these pictures that were taken were part of that pattern and not otherwise violative of the statute. That line you can develop, but you can‘t create it as a defense in the sense that if other people do it and they think it‘s all right, then it trumps the jury‘s decision as to whether these particular depictions are violative of the statute.
R. 77 at 19-20.
As to the prior incidents of molestation, after hearing the government‘s proffer as to what Jane Doe 1‘s testimony on this subject would be and why the government believed it was relevant, the court denied without prejudice the government‘s request to admit the testimony.
The evidence of the sexual acts, the alleged molestations, seems to me to be more remote and less—and therefore less relevant. It‘s inherently prejudicial, of course, so the Court has to balance very carefully. So the Court will rule that the Government cannot bring out the molestation incidents, the three that were cited to the Court[,] as part of its case-in-chief.
The door may be opened to the inclusion of that evidence on cross-examination of the defendant, depending on how that testimony goes, and also as possible rebuttal evidence depending on what the defense evidence is, if any.
The defendant‘s not obligated to present any evidence, but if the defense does ... present evidence on issues that would be—that would make this relevant and relevant as impeachment and relevant as to the charges in the indictment, then it can‘t come in any other way.
R. 74 at 26.
At trial, Jane Doe 1 testified as a witness for the government. She recalled that her father had taken pictures of her and her sister for as long as she could remember. When she was eleven or twelve years old, her father suggested that he create modeling websites for her, her sister, and her stepsister (the daughter of Russell‘s second wife) like those he had created for other children in the course of his business. Jane Doe 1 thought the idea sounded like fun. Thereafter, Russell engaged Jane Does 1 and 2 in a series of “photo shoots.” Russell would determine a theme for a particular photo session and then choose clothing appropriate to that theme, most of which he provided. In some of the photographs, Jane Doe 1 posed nude or in undergarments (including thong underwear) or swimwear. Russell told the girls that “special people” would pay for expanded access to their websites which would allow them to see the nude photographs. R. 74 at 99-100. Russell paid Jane Doe 1 $20 for some of the photo shoots; Russell told her that she and her sister would also receive money from the websites. On one occasion, Jane Doe 1 accessed her website and saw pictures of herself dressed; she did not know how to access the nude photographs of herself.
Jane Doe 2 also testified at trial. She too recalled that her father routinely took photographs of her and her sister. With respect to the photographs taken for their websites, sometimes the girls were clothed when he photographed them, other times they were partially clothed, and sometimes they wore no clothes at all. Jane Doe 2 acknowledged that her father had asked her if she was okay with him photographing her in the nude and that she had told him she was. She also acknowledged that
Russell directed her during the photography sessions: “He would say to do certain poses and stand a certain way.” R. 77 at 35. He also provided whatever clothes that she and her sister wore during the photography sessions, including bras, panties, and thong underwear. Although Jane Doe 2 took some of the clothing that Russell provided her home to her mother‘s house, she did not take the undergarments, “[b]ecause they weren‘t appropriate and I didn‘t wear them.” R. 77 at 16. Russell paid her $70 for one or more of the photo shoots; she understood this to be money derived from the website her father had set up for her. Russell chose the name “October” for her website. Jane Doe 2 accessed the website on a couple of occasions from Russell‘s computer, and when she did she saw, among other photographs, pictures of herself in the nude and partially dressed in a bra and panties. She recognized the photos that her mother later saw as being among those posted on the website.
Both Jane Doe 1 and Jane Doe 2 testified that Russell told them not to tell their mother about the websites or about the photo shoot at Spectrum Gym, and according to Jane Doe 1, he also instructed them not to mention the thong underwear he had provided to them for the photo shoots.
Russell took the witness stand in his own defense. He testified that he had been a nudist for virtually all of his life and that his second wife was also a nudist. He was a member of several nudist organizations, had visited nudist resorts fifty to 100 times, and had taken his children to such resorts on ten to fifteen occasions. On those occasions, he had given his daughters the choice whether to disrobe or remain clothed, and they had chosen to be nude.
Russell also testified that he had been taking photographs since the age of eight, and he had been photographing professionally in a freelance capacity since leaving the employ of Master Lab in 1996. He estimated that since 2002 he had probably taken fifty to seventy thousand photographs per year.
Russell said he had started Kid Models, a youth modeling agency, in 1997, and that later evolved into an online enterprise, kid-modelsagency.com, which created websites for child models. He estimated that between 1999 and 2005 he had created approximately twenty-five websites for children ranging in age from five to seventeen years old. In the course of establishing and maintaining a website for a girl who participated in youth beauty pageants, he became aware that one could invite viewers to sponsor a model by paying a fee (say, twenty or twenty-five dollars) in exchange for unlimited access to the model‘s portfolio of photographs. He later set up each of his daughters’ websites so as to provide expanded access to their photographs in exchange for paying a fee to become one of their “sponsors.”
According to Russell, he set up the two websites for his daughters after Jane Doe 1 observed him working on the website for the customer who participated in beauty pageants. After discussing the site with her father, Jane Doe 1 asked him if she could have her own site, and he agreed. (This conversation took place early in 2003.) When asked if she too wanted a website, Jane Doe 2 at first said no but changed her mind after observing several of Jane Doe 1‘s photo shoots. Russell testified that Jane Does 1 and 2 chose the names for their sites. He admitted to
Russell acknowledged having taken each of the photographs charged in the indictment, as well as additional, non-charged photographs taken in the same photography session as the nine photographs charged in Count One.1 He also admitted taking a videotape of his daughters in the nude at Spectrum Gym on the same occasion that he took the still photos charged in Counts Two and Four, although Russell averred that it was his daughters’ idea to take their clothes off on that occasion, not his. Russell acknowledged that he set the themes for his daughters’ photography sessions but, when questioned about a number of the photographs, denied that he directed the poses his daughters had assumed in those pictures. He contended that there was nothing inappropriate about any of the photographs and denied that any of them were meant to be sexually suggestive, although he agreed that the nude photographs would not be appropriate for online viewing by the general public.
At the conclusion of Russell‘s direct examination, the government asked the district judge to reconsider her ruling barring any evidence that Russell had previously engaged in inappropriate sexual contact with Jane Doe 1. In the government‘s view, Russell‘s testimony regarding his own practice of nudism and his denial that he had any intent to create sexually suggestive photographs opened the door to contrary proof that the charged photographs were indeed intended or designed to elicit a sexual response in the viewer and therefore qualified as lascivious displays of the genitals or pubic area, and thus “explicit sexual conduct,” for purposes of
Russell‘s counsel responded that Russell‘s motive and intent were not at issue in the case. The only element of
The court concluded that Russell had opened the door to the evidence. The court recognized the “inherently problematic,” i.e., prejudicial, nature of the evidence and its potential to distract the jury from the task of assessing whether the charged photographs violated the statute. R. 77 at 190.
On the other hand, the defense has, through its direct examination of the defendant, portrayed the defendant as a person who is a professional photographer who engages in recreational activities that include nudism, and has taken his family, and in particular the two girls who were involved in this case, with him on those trips, suggesting that the family and he, in particular, has a different view of nudism than others might have, and a higher level of tolerance of that sort of display of the body. And that while it may not be everybody‘s shared interest, it‘s his, and it puts in context what he was doing when he photographed the children; that is to say, that what the jury would conclude based on his testimony and based on his theory of defense is that there was nothing inappropriate about it. He said that, in fact, [there was] nothing inappropriate about the photographs or either the photographs or taking the pictures. That suggests that the Government‘s evidence that there may be something else going on here, and that is, the defendant‘s sexual interest in his daughters, and that in part his photography was a reflection of that interest; to that extent, the door has been opened for the Government to suggest that, in conjunction with the photography that was occurring by the defendant, there were some instances of sexually-related or inappropriate sexual contact with the girls.
R. 77 at 190-91.
Although the court allowed the government to inquire into this area, it imposed strict limits on the questions that the government could ask in order to minimize the potential for undue prejudice to the defense. The court allowed the government to ask Russell on cross-examination whether he had ever had sexual contact with Jane Doe 1. If, as expected, Russell answered that question in the negative, the court would allow the government to ask Jane Doe 1 in the government‘s rebuttal case whether Russell had ever touched her inappropriately, without eliciting any details about the incidents. Russell‘s counsel in turn would not be permitted to cross-examine Jane Doe 1 about any such details, although the court would permit the defense to establish that Jane Doe 1 had previously denied that her father had touched her inappropriately and had only recently recanted those denials and disclosed the prior incidents.
As expected, Russell denied on cross-examination that he was sexually attracted to Jane Doe 1 or that he had ever touched his daughter inappropriately, and in the government‘s rebuttal case Jane Doe 1 was called to testify and answered “yes” when asked if, between 2001 and 2004, her father “did any inappropriate sexual touching or contact” with her. R. 79 at 24. Russell‘s lawyer then established on cross-examination of Jane Doe 1 that she had only disclosed that information three
Also in its final charge to the jury, the court gave the following instruction identifying various factors that the jury could consider in determining whether the charged photographs reflected “lascivious exhibition of the genitals or pubic area of any person.” These factors derive from the district court‘s opinion in United States v. Dost, 636 F.Supp. 828, 832 (S.D.Cal. 1986), judgment aff‘d sub nom., United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), which have since been referenced by a number of circuits.
Those factors include, but are not limited to: (1) whether the focal point of the picture is the minor‘s or other person‘s genitalia; (2) whether the setting or pose is customarily associated with sexual activity; (3) whether the minor‘s pose is unnatural given his or her age; (4) whether the minor is fully or partially nude; (5) whether sexual coyness or willingness to engage in sexual activity is suggested; (6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.
The government is not required to prove that each of these factors is present. The importance which you give to any one factor is up to you to decide. The question is whether there is a visual depiction that amounts to a “lascivious exhibition of the genitals or pubic area” of a person.
The word “lascivious” is defined as “of or marked by lust” or “exciting sexual desires.” The term “lascivious exhibition” means a depiction which displays or brings to view to attract notice to the genitals or pubic area of children in order to excite lustfulness or sexual stimulation of the viewer. Not every exposure of the genitals or pubic area of children constitutes a lascivious exhibition.
In deciding whether the government has proven that the defendant acted for the purpose of producing a visual depiction of sexually explicit conduct, you may consider all of the evidence concerning the defendant‘s conduct.
R. 40 at 13-14; R. 79 at 101-02 (Instruction No. 8).
Apart from those factors, one aspect of Russell‘s conduct that the government believed was relevant to the assessment of his guilt was his relocation from the United States to Mexico in the summer of 2007. Russell and his wife left the United States shortly after a meeting that he and his attorney had with representatives of the U.S. Attorney‘s office in July 2007. During that meeting, he had been shown copies of the photographs that were later charged in Counts One through Four and was told that the government was contemplating criminal charges. Russell had become aware two years before this meeting that he was under investigation, when he was served with a search warrant at his home and was questioned about the videotape of his daughters at the gymnasium and asked whether he had taken other photographs of his daughters in the nude. But it was during the 2007 meeting that he was advised that prosecution for the images referenced in Counts One through Four was, in Russell‘s words, “a possibili-
The intentional flight by a defendant immediately after he is accused of a crime that has been committed is not, of course, sufficient in itself to establish his guilt; but it is a fact which, if proved, may be considered by the jury in light of all of the other evidence in the case in determining guilt or innocence.
R. 40 at 32; R. 79 at 110 (Instruction No. 24). In its closing arguments, the government characterized Russell‘s departure for Mexico as a flight from potential prosecution and thus as evidence of his consciousness of guilt. R. 79 at 56, 79.
The jury convicted Russell on all four counts of the indictment. At sentencing, the district court heard testimony that the images charged in Russell‘s indictment had been discovered in the possession of 1,567 different individuals located in all but one State of the United States, as well as in Canada and France, between May 2006 and May 2010. There was no evidence that these images had been distributed via Russell‘s computer or, apart from his daughters’ testimony, that he had ever posted the nude photographs on his daughters’ websites. But investigators had learned that in 2004, around the time the existence of the websites came to the attention of Dawn Russell and the authorities, Russell gave a box of materials, including hard drives, the gymnasium videotape, and compact discs, to a friend in Michigan for safekeeping. That individual revealed that he had accessed and copied the images on the hard drives, which included photographs of Jane Does 1 and 2 partially or completely naked, and distributed those photographs to others, although he claimed he did not post them on any Internet websites. Also at sentencing, Jane Doe 1 retook the witness stand to recount the details of the three occasions on which her father had touched her inappropriately. Victim impact statements from Jane Doe 1, Jane Doe 2, and their mother were read aloud.
The Sentencing Guidelines specified a sentence of life in prison for Russell. The government asked the court to impose a term of eighty years. Russell‘s counsel did not recommend a specific term, but suggested that a term of fifteen to eighteen years would be “a very substantial sentence.” R. 81 at 94.
In passing sentence, Judge Barker acknowledged that she had seen more egregious examples of child pornography than the photographs in this case but added that these photographs were “bad enough without being the worst of the worst,” R. 81 at 118. Russell had not only victimized his children by taking the photographs, but in view of their widespread distribu-
[W]e have to deter you. We have to deter others. We can‘t run the risk that you‘ll ever do this again, but I don‘t think that I need to deter you as much as I need to deter others. You need to be punished, and so there will be punishment in this sentence.
R. 81 at 118. The district court ordered Russell to serve concurrent terms of 240 months each on Counts 1 and 2 of the indictment, and concurrent terms of 218 months each on Counts 3 and 4, to be served consecutively to the sentences on Counts 1 and 2, for a total prison term of 456 months, or thirty-eight years.
II.
A. Admission of Prior Acts of Molestation
Russell first challenges the district court‘s decision to allow Jane Doe 1 to testify that he had touched her inappropriately. He contends that the prior incidents of touching “were not probative of any material fact, were remote in time and dissimilar in nature to the charged offenses and their prejudicial impact far outweighed any arguable probative value.” Russell Br. 11. For the reasons that follow, we conclude that the district court did not abuse its discretion in allowing this evidence.
We begin with the statute pursuant to which Russell was charged. In relevant part,
Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in ... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct ... shall be punished ... if such person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed.
The statute does not define what constitutes a lascivious display of the geni-
As we have also noted, the jury in this case was instructed to consider the factors articulated in United States v. Dost, supra, 636 F.Supp. at 832, which include the following:
(1) whether the focal point of the picture is the minor‘s (or another person‘s) genitalia;
(2) whether the setting or pose is customarily associated with sexual activity;
(3) whether the minor‘s pose is unnatural given his or her age;
(4) whether the minor is fully or partially nude;
(5) whether sexual coyness or willingness to engage in sexual activity is suggested; and
(6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.
R. 40 at 13-14; R. 79 at 101-02 (Instruction No. 8.) These factors have been approved, to a limited degree, by a number of circuits. See, e.g., United States v. Rivera, 546 F.3d 245, 250-53 (2d Cir. 2008); United States v. Grimes, 244 F.3d 375, 380 (5th Cir. 2001); United States v. Horn, 187 F.3d 781, 789 (8th Cir. 1999); United States v. Amirault, 173 F.3d 28, 31-32 (1st Cir. 1999); Knox, 32 F.3d at 745-46 & n. 10. However, as the First Circuit noted in Frabizio, 459 F.3d at 88-90, the adequacy and application of these factors have been the subject of considerable discussion among the courts. See also Steen, 634 F.3d at 828-29 (Higginbotham, J., concurring). This court has held that it is not plain error to instruct a jury on the Dost factors, United States v. Noel, 581 F.3d 490, 499-500 (7th Cir. 2009), but we have otherwise abstained from endorsing them or rejecting them, id. at 500. Neither party to this appeal has questioned the propriety of these factors, and we note that the district court quite properly admonished the jury that it was not confined to these factors in its evaluation of the charged photographs, that the government was not required to prove that each of these factors was present, and that it was for the jury to decide the importance of any one factor. R. 40 at 13-14; R. 79 at 101-02 (Instruction No. 8). In the absence of any argument to the contrary, we are satisfied that the jury was given adequate and accurate guidance in assessing whether the charged photographs reflected a lascivious exhibition of the genitals or pubic areas of Jane Does 1 and 2.
Although the primary focus in evaluating the legality of the charged photographs must be on the images themselves, see, e.g., Griesbach, 540 F.3d at 656; Amirault, 173 F.3d at 31, the cases reveal that the intent and motive of the photographer can be a relevant consideration in evaluating those images. For example, although it is the sexually suggestive nature of a photograph of a minor which distinguishes a
This is simply to say that a defendant‘s intent or motive in creating an image are potentially relevant considerations, as the Ninth Circuit said in Arvin, 900 F.2d at 1391. The relevance of a defendant‘s motive and intent will turn on the facts of the case. But at least in some circumstances, evidence of motive and intent will help to place an image in context, especially where, as here, there is evidence that the photographer posed the minor in such way that her genitals are visible but has disclaimed any intent to create a sexually suggestive image.
On that very point, we note that Russell‘s attorneys themselves originally cited the sixth Dost factor as a reason why the full range of testimony and other evidence that he proposed on nudism should be admitted into evidence:
Another factor the jury will be invited to consider in determining whether the images depict “lascivious exhibition of the genitals” is whether the visual depiction is intended or designed to elicit a sexual response.
..
In one breath, the government expresses its intent to introduce allegations of prohibited sexual contact between Defendant and Jane Doe 1 as “highly probative to the issues of [Defendant‘s] intent and motive in taking the pictures.” Govt. Trial Brief, p. 3. In the next breath, they ask this Court to rule that Defendant‘s views toward nudity and the art that influenced his photography be barred as “confusing to the jury.” Precluding such evidence keeps the jury in the dark as to precisely that which the government admits is crucial: Defendant‘s state of mind. The government cannot have it both ways.
R. 29 at 6-7 (citation omitted).
Although Russell‘s counsel later abandoned this position and insisted that his state of mind was wholly irrelevant to the jury‘s evaluation of the photographs, our review of the record leads us to conclude that the district court did not abuse its discretion in concluding that the defense opened the door to evidence bearing on his motive and intent, regardless of whether such evidence was relevant in the first instance. As we understand Russell‘s defense, one of the reasons why Russell testi-
Apart from the testimony regarding nudism, Russell made certain assertions during his own testimony, and his counsel asked certain questions in cross-examining Russell‘s daughters, that also placed into question his state of mind in taking the charged photographs. First, when Russell was questioned on cross-examination about the video and photographs he took of Jane Does 1 and 2 at the gymnasium, he maintained that it was his daughters’ idea to take their clothes off. R. 77 at 199, 230. His testimony on this point directly contradicted the testimony of Jane Does 1 and 2, who said that it was their father who told them to disrobe, R. 74 at 101; R. 77 at 33-34, and if Russell‘s testimony is credited it would suggest that he, at least on that occasion, was indifferent to whether the girls were nude. Second, and as we mentioned earlier, when Russell was cross-examined about a number of the nude photographs he took of his daughters, he denied that he had directed the girls to assume any particular pose. For example, when asked about the photographs underlying Count Three, depicting Jane Doe 2 just emerged from the shower, Russell testified, “I did not stage the scene, no.” R. 77 at 225. See also R. 77 at 217-223. Again, his testimony on this subject was contrary to that of his daughters, see, e.g., R. 74 at 111, 126; R. 77 at 30, 35, and it suggested that Russell was not directing the girls to pose in ways that could be viewed as sexually suggestive. Finally, during the cross-examination of Jane Does 1 and 2, Russell‘s counsel sought to establish that Russell had not directed the girls while photographing them in the nude in any different way than he had when photographing them clothed. R. 74 at 120; R. 77 at 55-56. Those questions were clearly aimed at conveying to the jury that Russell‘s purpose in photographing his daughters nude was not to create sexually suggestive images.
Given all of this, we agree with the district court that the door was opened to evidence that would cast a different light on Russell‘s motive and intent in taking the charged photographs. Russell may have a point when he emphasizes that he “structured his case in compliance with the court‘s decision [to initially exclude the molestation evidence] and with its prior holdings that he was entitled to testify to the fact that he practices nudism, that he has included his children in nudist activities and that his photographs were part of that pattern and not otherwise violative of the statute.” Russell Br. 16. Although rendered separately, the district court‘s pre-trial rulings allowing him to testify on the subject of nudism, while
We note that the government relied on both
In this case, however, the court appears to have relied on
Russell contends that because this evidence related to alleged acts of molestation, which obviously were different from the charged offense of creating and distributing child pornography, the evidence was inadmissible. But a prior act need not be the same as the charged offense in order to be relevant under
Although the incidents of inappropriate touching were removed in time from the creation of the charged photographs by one to two years, we do not agree with Russell that these acts were so temporally remote as to deprive the acts of touching of their relevance. The passage of one to two years might well render a defendant‘s prior acts non-probative in another case, but we are not convinced that was true here, given the purpose for which they were offered. See, e.g., United States v. Julian, 427 F.3d 471, 487-88 (7th Cir. 2005) (defendant‘s sexual assault of minor twelve years prior to charged offense of conspiring to travel in foreign commerce with intent to engage in illicit sexual conduct supported inference that defendant was a pedophile and was therefore probative of his knowledge and intent vis-à-vis resort for pedophiles he and co-defendant established); United States v. Saunders, 166 F.3d 907, 917 & n. 14 (7th Cir. 1999) (portion of threat letter sent to judge, referencing defendant‘s stabbing of correctional officer some eighteen months earlier, was probative of defendant‘s intent to instill fear in his victim). The inference that the government wished the jury to draw from Jane Doe 1‘s testimony that her father had touched her sexually was that Russell is a pedophile. We agree, as the district court did, that her testimony supports that inference. See Julian, 427 F.3d at 488. And that inference in turn supports the government‘s theory that Russell enticed and persuaded his daughters to pose in the nude for the purpose of creating sexually suggestive photographs that he could sell to or otherwise share with other pedophiles on the Internet. That the inappropriate touching Jane Doe 1 reported had
Russell also contends that Jane Doe 1‘s testimony on this subject was “devastating” to his defense, but in view of the strict limits that the district judge imposed on this testimony, we do not believe it was so unduly prejudicial as to require its exclusion. The jury knew nothing other than that Russell, according to Jane Doe 1, had touched her inappropriately. It knew none of the particulars, including how many incidents of touching there had been. Consequently, although the jurors knew enough to draw the inference that Russell was sexually interested in Jane Doe 1 and had touched her in a sexual way, it knew none of the disturbing and inflammatory details that Jane Doe 1 had recounted to the prosecution. The district court thus did everything it could to cabin the prejudicial impact of the testimony by limiting Jane Doe 1‘s testimony to the one point that was relevant: her father had touched her inappropriately.
By contrast, the district court did give Russell‘s counsel appropriate leeway to explore on cross-examination of Jane Doe 1 the belated nature of her disclosure of the molestation. Given that Jane Doe 1 had previously (and repeatedly) denied any sexual contact between her father and herself, and then reported the incidents only weeks before the trial commenced, it is possible, as Russell suggests, that her testimony was fabricated. But given how traumatic sexual molestation is, it is by no means unusual for a child to deny that her parent has abused her when, in fact, he has. See, e.g., Leadership Council on Child Abuse & Interpersonal Violence, Eight Common Myths About Child Sexual Abuse, http://www.leadershipcouncil.org/1/res/csa_myths.html (last visited Nov. 7, 2011) (“Contrary to the popular misconception that children are prone to exaggerate sexual abuse, research shows that children often minimize and deny, rather than embellish, what has happened to them.“); Thomas D. Lyon & Elizabeth C. Ahern, Disclosure of Child Sexual Abuse: Implications for Interviewing, in THE APSAC HANDBOOK ON CHILD MALTREATMENT 233, 234-38 (John E.B. Myers, ed.) (3d ed. 2011). Whether Jane Doe 1‘s testimony on this subject was true or not was a question for the jury. The district court enabled Russell‘s counsel to establish the chronology of her inconsistent statements on this subject, thus allowing the jury to weigh her testimony appropriately.
B. Exclusion of Nudism Expert and Books Containing Photographs of Nude Families and Children
Russell contends that the district court abused its discretion in precluding him from presenting the testimony of attorney Jawn Bauer, who as noted was counsel to various nudist organizations, and in excluding various published works of photography that he kept in his home and that included photographs of nude families and children. He argues that
The court did not abuse its discretion in excluding Bauer‘s testimony. We may assume that Bauer was qualified to testify as an expert on nudism, but as the district court pointed out, “[t]his case is not about nudism.” R. 74 at 18. Testimony about nudism was arguably relevant only to the extent that it may have helped to explain why Russell photographed his daughters in the nude, why his daughters would have agreed to be photographed by Russell without clothing, and what Russell‘s purpose was in creating the charged images of his daughters. Frankly, however, we have a difficult time understanding this line of testimony as anything but a red herring. None of the charged photographs were taken at any of the clothing-optional resorts that Russell and his second wife visited with their children, nor did the defense claim that any of those photographs were the sort of candid snapshots of a family member that one might expect to find among the photos of a family that engages in nudism. All of the charged photographs were staged photographs that the defendant directed to some degree, and both girls testified that they would not have been nude but for purposes of the photography sessions Russell initiated. So far as the girls understood, they were posing in the nude as “models” for photographs that would be posted on their websites along with additional photographs of them fully or partially clothed. Yet Russell himself understood and acknowledged that the nude photographs were not appropriate for posting online. R. 77 at 166. In any case, to the extent nudism was minimally relevant in the ways cited by the defense, the district court gave Russell‘s attorneys ample latitude to elicit testimony from both Russell and his daughters on the subject. Bauer, on the other hand, could not possibly have spoken to any point relevant to the charges in this case. His generalized testimony about the practice of nudism and the values of nudists would have been of no assistance to the jury in evaluating the circumstances under which Russell took the charged photographs and deciding whether he violated section 2251(a) in doing so. Cf. Frabizio, 459 F.3d at 85 & n. 8 (because the lascivious nature of charged image is something layperson can determine, expert testimony is not required) (citing Arvin, 900 F.2d at 1389-90); United States v. Thoma, 726 F.2d 1191, 1200-01 (7th Cir. 1984) (videotapes were sufficient evidence of their own prurient appeal; expert testimony was not required on this point).
Nor did the court abuse its discretion in excluding the published works of photography. As to Russell‘s motives in taking the charged photographs, these works, by photographers other than himself, were irrelevant. Russell‘s contention that the books would have placed his own photographs within a broader context of artistic documentation of and appreciation for the nude form, including the nude child, suggests that he wished to invite the jury to compare his photographs to the published work of other photographers and to surmise that his photographs, like theirs, had a legitimate artistic purpose and value. Images of children need not be obscene in order to qualify as lascivious, however.
C. Instruction on Flight
As we noted in our factual summary, Russell and his wife left the United States for Mexico shortly after he was informed by representatives of the U.S. Attorney‘s office in July 2007 that they were considering the possibility of filing federal charges against him. The government was permitted to elicit this fact from Russell on cross-examination, and in its closing argument, it characterized Russell‘s departure from the country as flight which evidenced his consciousness of guilt. As we have noted, the district court instructed the jury that “[t]he intentional flight by a defendant immediately after he is accused of a crime that has been committed ... is a fact which, if proved, may be considered by the jury in light of all the other evidence in the case in determining guilt or innocence.” R. 40 at 32; R. 79 at 110 (Instruction No. 24).
Although the court‘s instruction reflects an accurate statement of the law, see United States v. Skoczen, 405 F.3d 537, 549 (7th Cir. 2005); United States v. Jackson, 572 F.2d 636, 641 (7th Cir. 1978), Russell contends that it was error for the court to give it because the evidence in this case does not support an inference that he fled the country in order to avoid prosecution. Russell first became aware that he was under investigation in June 2005, when he was served with a search warrant at his home. In Russell‘s view, the fact that he did not leave the country until more than two years later defeats any inference that he was fleeing the country and thus renders a flight instruction inappropriate.
Russell rightly points out that we have urged caution with respect to both the admission of flight evidence and instructing jurors on the inferences they may draw from such evidence. See, e.g., United States v. Robinson, 161 F.3d 463, 469 (7th Cir. 1998); United States v. Williams, 33 F.3d 876, 879 (7th Cir. 1994). The Supreme Court itself has “consistently doubted the probative value in criminal trials of evidence that the accused fled the scene of an actual or supposed crime.” Wong Sun v. United States, 371 U.S. 471, 483 n. 10, 83 S.Ct. 407, 415 n. 10, 9 L.Ed.2d 441 (1963). We have added that “[b]ecause the probative value of flight evidence is often slight, there is a danger that a flight instruction will isolate and give undue weight to such evidence.” Williams, 33 F.3d at 879.
Nonetheless, we have sustained the giving of a flight instruction where the facts readily support an inference that the defendant was attempting to evade capture and prosecution. E.g., Skoczen, 405 F.3d at 548-49; United States v. Lewis, 797 F.2d 358, 368-69 (7th Cir. 1986). Beginning with our decision in Jackson, we have said that the probative value of flight as circumstantial evidence of guilt depends upon the degree of confidence with which four inferences can be drawn: (1) from the defendant‘s behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged. 572 F.2d at 639 (citing United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977)); see also, e.g., Skoczen, 405 F.3d at 548; Robinson, 161 F.3d at 469. We have also indicated that the chronology of events, and in particular the passage of time between the commission of a crime or the defendant being accused of a crime and his purported flight, is a material consideration in our assessment of both the probative worth of flight evidence and, in turn, the propriety of a flight instruction. Jackson, 572 F.2d at 640-41. Where a defendant flees in the immediate aftermath of a crime or shortly after he is accused of committing the crime, the inference that he is fleeing to escape capture and prosecution is strong. See id. (quoting Myers, 550 F.2d at 1051). By contrast, if a substantial amount of time passes before a defendant takes action that the government characterizes as flight, the inference that the defendant is in fact attempting to evade prosecution becomes more tenuous. Id. at 641 (quoting Myers). We have added, however, that “the importance of the immediacy factor is greatly diminished, if not rendered irrelevant, when there is evidence that the defendant knows that he is accused of and sought for the commission of the crime charged.” United States v. Ajijola, 584 F.3d 763, 765-66 (7th Cir. 2009) (quoting Jackson, 572 F.2d at 641).
In this case, the district court found that each of the four pertinent inferences could be drawn with a sufficiently high degree of confidence to warrant admission of the flight evidence and a corresponding instruction, and we find no abuse of discretion in the court‘s decision. Russell‘s departure for Mexico occurred shortly after he and his counsel, at the meeting with federal prosecutors, were shown the photographs that eventually formed the basis for his indictment and were advised that his prosecution for these photographs was a possibility. The jury could reasonably infer from this sequence of events that the meeting triggered a fear of imminent prosecution in Russell‘s mind, that he left the country with the purpose of evading prosecution, and that this flight evidenced Russell‘s awareness that he was guilty of the charges that federal prosecutors were entertaining.
Russell‘s focus on the date he first learned he was under investigation is myopic. For any number of reasons, criminal charges do not always materialize immediately after an individual is identified as a possible perpetrator of a crime. Thus, in the absence of an arrest and charges, a defendant may perceive (rightly or wrongly) that the chance of prosecution is slight. Later developments, however, may signal that things are about to change, and in conveying that message give the defendant greater reason to flee than he had earlier. A defendant‘s flight on the heels of such a development may thus be probative of his consciousness of guilt, notwithstanding that it occurs months or even years after the defendant first had reason to know that the authorities suspected him of criminal conduct. For example, in United States v. Levine, 5 F.3d 1100, 1107-08 (7th Cir. 1993), we found it probative of the defendant‘s guilt that he fled within weeks of being asked to provide handwriting exemplars, despite the fact that the request came more than a year after he committed the murders with which he was later charged. We reasoned that he “had no reason to flee until he realized he might face criminal sanctions for the murders.” Id.
In this case, Russell certainly may have had reason to fear prosecution when he was first served with a warrant to search his home in 2005. But at that time, although the authorities were asking him whether he had taken any nude photographs of his daughters apart from the videotape of his daughters at the gymnasium, they did not have in their possession
This is true notwithstanding the lack of other evidence that might have enhanced the inculpatory nature of Russell‘s departure. For example, as Russell points out, the record does not indicate that he used a false passport when he left the country, left his attorney with no contact information, or attempted to conceal his whereabouts. Cf. Levine, 5 F.3d at 1106 (defendant relocated, left no forwarding address, and engaged answering service and private mailbox under assumed name). It was only his departure to Mexico after the meeting with the U.S. Attorney‘s office that the government cited as evidence of his consciousness of guilt. The lack of additional signs that Russell was attempting to evade capture and prosecution might have supported a decision to exclude evidence of flight and obviated any need for a flight instruction. Nonetheless, the timing of Russell‘s departure readily supports an inference that he was fleeing prosecution and that in turn supports an inference of consciousness of guilt. This is enough to show that the court did not abuse its discretion in permitting the evidence and giving the flight instruction. We note finally that the district court gave Russell‘s counsel leeway to show, through Russell or other witnesses, that his decision to relocate with his wife to Mexico was not made as a result of his meeting with federal prosecutors or the possibility of prosecution. Russell did not take advantage of this opportunity, but it confirms that he was not unduly prejudiced by the district court‘s decision.
D. Reasonableness of the Sentence
As we have noted, the district court ordered Russell to serve a prison term of 456 months (thirty-eight years). Russell contends that this sentence was greater than necessary to comply with the sentencing aims set forth in
The Sentencing Guidelines called for a life sentence in Russell‘s case. Most federal statutes do not authorize a life term, and
As Russell has identified no procedural error in his sentencing, our review is confined to the substantive reasonableness of the sentence. E.g., United States v. Aslan, 644 F.3d 526, 531 (7th Cir. 2011). Because it is below the range advised by the Guidelines, we presume it to be reasonable. United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005); United States v. Liddell, 543 F.3d 877, 885 (7th Cir. 2008). Russell bears the burden of rebutting that presumption by demonstrating that his sentence is substantively unreasonable in light of the sentencing factors set forth in
Russell‘s offenses were very serious. Although, as Russell points out, the district judge remarked that she had “seen much worse” examples of child pornography than the images with which Russell was charged, R. 81 at 116, she added that they were “bad enough without being the worst of the worst,” “horrific,” and “beyond the pale,” R. 81 at 115, 116, 118. Moreover, these photographs were so widely disseminated on the Internet, if not by Russell himself then by the friend to whom he entrusted them for safekeeping, that they were discovered throughout the United States and in two foreign countries, thus perpetuating and expanding on the harm that Russell did in taking the photographs. R. 81 at 118. The victim impact statements submitted by Russell‘s daughters spoke poignantly of the sense of betrayal they felt as a result of what he did to them. Moreover, Jane Doe 1‘s testimony, both at trial and in greater detail at sentencing, made clear that Russell‘s criminal behavior was not limited to the charged photographs but also included multiple acts of molestation committed against his elder daughter. Those acts, as we have discussed, tend to belie the notion that Russell‘s motive in taking the charged photographs was innocent and that he inadvertently stepped over the line. His criminal behavior will have long-lasting effects on both of his daughters. The district judge aptly observed that “the ripples
The mitigating personal circumstances that Russell relies on as proof that a lesser sentence would be sufficient to satisfy the statutory sentencing criteria are neither unique nor weighty. Yes, Russell expressed remorse for his acts, but only after being found guilty. Even then, the district court detected a certain “disconnect” between Russell‘s own perception of what he did and what the evidence revealed about his criminal acts. R. 81 at 88. His college education, job skills, age, marital status, and lack of history of drug abuse are neither remarkable nor so compelling as to call into question the reasonableness of a below-Guidelines sentence. See United States v. Young, 590 F.3d 467, 474 (7th Cir. 2009). Russell committed his offenses despite these advantages, and although his positive attributes may distinguish him to some degree from others who commit similar offenses, they are not so extraordinary as to compel a lesser sentence than the one the court imposed.
Russell suggests that the statutory minimum prison term of 180 months (fifteen years) on each of the four counts of conviction (presumably to run concurrently) would be a more reasonable sentence. But even if we assume for the sake of argument that a sentence so far below the life term recommended by the Guidelines could be thought of as reasonable in this case, the district court certainly did not abuse its discretion in concluding otherwise. Russell‘s crimes, in the district court‘s words, reflected “exceedingly grave exploitative behavior.” R. 81 at 80. The district court was aware of and gave consideration to the mitigating factors. Nothing calls into question the court‘s conclusion that the below-Guidelines sentence it imposed, although still unquestionably lengthy, as reasonable. Cf. Noel, 581 F.3d at 500-01 (affirming eighty-year sentence for nude photographs of sleeping minor).
III.
For all of the foregoing reasons, Russell‘s convictions and sentence are AFFIRMED.
GOTTSCHALL, District Judge, concurring in the court‘s judgment.
I join the panel‘s opinion, but write separately to highlight what I view as a degree of unfairness, resulting from a lack of clarity in the caselaw, which affected the district court‘s pretrial ruling on the admissibility of molestation evidence in the event that the defendant testified.
I agree that it was well within the district court‘s discretion to exclude, as the district court initially did, the molestation testimony based on the court‘s conclusion that the probative value of that testimony did not outweigh its prejudicial effect. The district court carefully weighed the relevant
But when the district court made its ruling, it explicitly mentioned the possibility that the defendant, if he testified, could “open the door” to the molestation evidence:
The door may be opened to the inclusion of that evidence on cross-examination of the defendant, depending on how that testimony goes, and also as possible
The defendant‘s not obligated to present any evidence, but if the defense does not present evidence on issues that would be—that would make this relevant and relevant as impeachment and relevant as to the charges in the indictment, then it can‘t come in any other way.
(R. 74 at 26.) As the panel notes, the district court also ruled that Russell could testify about his nudism. Taken together, these rulings “seemed to envision that Russell could testify that the charged photographs were consistent with his own practice of nudism ... and that the photos were not inappropriate, sexually charged images, without opening the door to evidence that he had previously touched Jane Doe 1 inappropriately.” (Maj. Op., supra at 846.)
The district court had already excluded the testimony of Russell‘s nudism expert. Thus, Russell‘s own testimony was the only way in which he could present his defense: that he was a nudist and a photographer, that his images were a “simple portrayal of nude children” (R. 74 at 16), and that he never intended the photographs to be lascivious. While his decision to testify exposed him to cross-examination, it was a risk he accepted in light of the understanding that if he testified as predicted, the molestation evidence would not come in.
The record reflects that defense counsel carefully adhered to the limits set by the district court when eliciting Russell‘s nudism testimony on direct examination. Indeed, Russell‘s testimony at trial was consistent with what everybody understood and expected that testimony to be. Still, Russell‘s testimony necessarily “call[ed] into question his purpose and motive in taking the charged photographs.” (Maj. Op., supra at 846.)
When the district court realized that Russell‘s intent was at issue, it was entitled to revisit its earlier pretrial ruling. See Ohler v. United States, 529 U.S. 753, 758 n. 3, 120 S.Ct. 1851, 146 L.Ed.2d 826 (2000) (noting that “in limine rulings are not binding on the trial judge, and the judge may always change his mind during the course of a trial” (citing Luce v. United States, 469 U.S. 38, 41-42, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984))). And I agree that it would not be an abuse of discretion for the court to reverse itself and conclude that the molestation testimony was relevant and admissible under
Today‘s opinion will make clear that in cases like this one—that is, where the defense is that the images are simple portrayals of naked children which were not intended to be lascivious—the primary focus in evaluating the legality of the charged photographs remains on the images, but “the intent and motive of the