United States v. Russell

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2259

U NITED STATES OF A MERICA,

Plaintiff-Appellee,

v.

D ALE R USSELL,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 08 CR 04—Sarah Evans Barker, Judge.

A RGUED F EBRUARY 7, 2011—D ECIDED N OVEMBER 10, 2011

Before

R OVNER and W OOD , Circuit Judges, and

G OTTSCHALL, District Judge.Œ

R OVNER, Circuit Judge. A jury convicted Dale Russell of

producing sexually explicit photographs of his minor

daughters which later crossed international boundaries,

in violation of 18 U.S.C. § 2251(a), and the district court

Œ

The Honorable Joan B. Gottschall, of the Northern District

of Illinois, Eastern Division, sitting by designation.

2 No. 10-2259

ordered him to serve a prison term of thirty-eight years.

Russell appeals his convictions, contending that the

district court erred in (1) allowing one of his daughters

to testify that he had touched her inappropriately one

to two years before he took the photographs charged

in this case; (2) excluding from evidence a number of

photography books from his collection containing photo-

graphs of nude families and children, as well as the

proffered testimony of an expert concerning the practice

of nudism, and (3) instructing the jury that evidence

of a defendant’s flight from prosecution could be con-

sidered as evidence of his consciousness of guilt. Russell

also contends that his sentence was unreasonable. We

affirm Russell’s convictions and sentence.

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 India-

napolis. 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

No. 10-2259 3

and Jane Doe 2, had been posted on two Internet websites:

kasey-model.com and october-model.com. The photo-

graphs 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 photo-

graphs 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.

4 No. 10-2259

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 photo-

graphs 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.

Russell was indicted in 2008 on four charges of pro-

ducing child pornography in violation of section 2251(a).

Count One was based on nine photographs that Russell

had taken of Jane Doe 1 on September 6, 2004, when she

was twelve years old. The charged photographs were

taken in the bedroom that Jane Doe 1 shared with her

sister at Russell’s residence, and were part of a larger

series of eighty-six photographs that Russell took on

that occasion. Russell had instructed Jane Doe 1 to

pretend she had just awoken from a night’s sleep and was

rising for the day. The photographs depicted her nude

while in bed (although Jane Doe 1 would later testify

that she did not normally sleep in the nude), rising from

the bed with a blanket around her shoulders, and then

putting on a bra and underpants. The bedding, bra, and

panties all featured the children’s cartoon character

Sponge Bob. Jane Doe 1’s genital area is visible in all nine

of the photographs charged in Count One. Count Two was

based on a photo of Jane Doe 1 taken on September 19,

2004 at the Spectrum Gym. The trial testimony revealed

that on that date, Russell took his daughters to the gym

after hours (he had a key), covered the window of the

No. 10-2259 5

front door, and, according to both of his daughters, in-

structed them to take off their clothes. (Russell denied

that he had instructed his daughters to disrobe, testifying

instead that it was his daughters’ idea.) He took a video

of the girls talking about gymnastics, and also took still

photographs of each of them. The still photograph

charged in Count Two depicts Jane Doe 1 preparing to

perform a handstand. She is naked in the photograph,

and her genital area is visible. Count Three is based on

two photographs taken of Jane Doe 2 at Russell’s

residence on February 8, 2004, when she was nine years

old. Jane Doe 2 is nude in the photos, which depict her

having just emerged from the shower. Both photo-

graphs depict her with a leg propped up on a toilet

that was next to the shower, with a folded towel draped

across her leg. Her genital area is visible in both photo-

graphs. Finally, Count Four is based on a single photo-

graph of Jane Doe 2 in the mirrored dance room of the

Spectrum Gym on September 19, 2004. Jane Doe 2 had

turned ten years old by this time. She is standing next

to a barre used for warm-up exercises, with her leg ex-

tended out to her side. Her genital area is visible in

the photograph. Jane Does 1 and 2 would later testify

that Russell directed them to assume the poses for all

of these photographs. Russell would contradict their

testimony on this point, testifying that he had only

given them general direction.

Before the trial commenced, it was clear that the central

issue in the case would be whether the charged photo-

graphs of Jane Does 1 and 2 portrayed “sexually explicit

conduct,” see § 2251(a), which, as relevant here, is

6 No. 10-2259

defined to include the “lascivious exhibition of the

genitals or pubic area of any person,” 18 U.S.C.

§ 2256(2)(A)(v). Not every nude photograph qualifies as

a lascivious one. United States v. Griesbach, 540 F.3d 654,

656 (7th Cir. 2008) (coll. cases); see United States v. Johnson,

639 F.3d 433, 439 (8th Cir. 2011) (discussing examples of

non-lascivious nude photographs). A lascivious display

is one that draws attention to the genitals or pubic

area of the subject “in order to excite lustfulness or

sexual stimulation in the viewer.” United States v.

Knox, 32 F.3d 733, 745 (3d Cir. 1994) (citing B LACK ’ S

L AW D ICTIONARY 882 (6th ed. 1990)); accord United States

v. Steen, 634 F.3d 822, 828 n.30 (5th Cir. 2011) (per curiam).

It was Russell’s contention that the charged photographs

of his daughters depicted nothing more than nudity. R. 29

at 2. By contrast, the government contended that the

photographs were intended to elicit a sexual response

in the viewer. Both sides sought to introduce evidence

extrinsic to the photographs in support of their posi-

tions; and each objected to the evidence proposed by

the other side.

In his pretrial filings, Russell indicated that he in-

tended 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 testi-

mony 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

No. 10-2259 7

nudist organizations. Russell contended that Bauer quali-

fied 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 photo-

graphs of his daughters. R. 29 at 7.

The government, on the other hand, sought the ad-

mission 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 inci-

dents of molestation had taken place one to two

years before Russell took the photographs underlying

the indictment. Jane Doe 1 had not disclosed these inci-

dents until three weeks before Russell’s trial was

scheduled to begin; until that time, she had denied re-

peatedly that her father had ever touched her inappro-

8 No. 10-2259

priately. The government contended that Jane Doe 1’s

testimony concerning these incidents was admissible in

its case-in-chief pursuant to Federal Rules of Evidence

414 and 404(b), in order to place the charged photographs

in a different light from the one cast by Russell’s pro-

posed nudism defense. It reasoned that Russell’s “[p]rior

sexual contacts with [Jane Doe 1] show his sexual attrac-

tion to her, and also show a sexual purpose, therefore,

in taking the photographs.” R. 77 at 8.

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 photo-

graphy 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 re-

sponse in the viewer. The court agreed that Russell’s

practice of nudism “may have some marginal relevance”

to that factor, although “it does not constitute a defense

to this action.” R. 74 at 19.

So with those limitations, you can raise the issue that

he is a nudist, and that he participated in those activi-

ties, 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

No. 10-2259 9

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. 74 at 19-20.

As to the prior incidents of molestation, after hearing

the government’s proffer as to what Jane Doe 1’s testi-

mony on this subject would be and why the government

believed it was relevant, the court denied without preju-

dice the government’s request to admit the testimony.

The evidence of the sexual acts, the alleged molesta-

tions, 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.

10 No. 10-2259

At trial, Jane Doe 1 testified as a witness for the gov-

ernment. 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 photo-

graphs. 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 photo-

graphed 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

No. 10-2259 11

she had told him she was. She also acknowledged that

she had accompanied her father and his second wife

to nudist resorts on more than one occasion and that,

when given the choice, she had chosen to be nude, al-

though she did feel “[a] little bit” uncomfortable when

she did so. R. 77 at 44.

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 sessions; she under-

stood 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.

12 No. 10-2259

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 photo-

graphs since the age of eight, and he had been photo-

graphing 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 mod-

eling agency, in 1997, and that later evolved into an

online enterprise, kidmodelsagency.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 pag-

eants, 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.”

No. 10-2259 13

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 taking all of the photographs that his

former wife was later shown, as well as photographs of

the girls in the nude or in various stages of undress.

However, he denied having ever posted any of the nude

photographs on the girls’ websites. He testified that he

took half of the proceeds received from site “sponsors”

and deposited them into the girls’ bank accounts; the

other half he gave to the girls directly for them to spend

or save as they wished. He denied, however, that he

ever paid the girls directly for any of the photo shoots,

nude or otherwise. He also denied having ever told the

girls not to tell their mother about the sites, although as

far as he knew his ex-wife did not know about them.

Russell acknowledged having taken each of the photo-

graphs 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

1

He did, however, maintain that someone other than himself

had cropped the photographs in Count One to eliminate much

(continued...)

14 No. 10-2259

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 photo-

graphs 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 section 2251(a).

Evidence that Russell had sexually molested his daughter

1

(...continued)

of the surroundings and effectively enlarge the depictions

of Jane Doe 1.

No. 10-2259 15

would suggest that he was a pedophile and, contrary to

his testimony, that his purpose in photographing his

daughters was to create photographs that would appeal

to the prurient interests of the persons who would view

the photographs.

Russell’s counsel responded that Russell’s motive

and intent were not at issue in the case. The only

element of section 2251(a) that was in dispute was

whether the images rose to the level of a lascivious ex-

hibition of the genital or pubic area and, in counsel’s

view, the charged photographs spoke for themselves

in terms of their content. Russell’s testimony regarding

his practice of nudism was not presented as a defense

on that point, his counsel argued, but rather had been

offered to place the nude photographs he took of his

daughters in context and to shed light on who he was as

a person: “His personal background to dispel the

image that the Government has tried to portray that all

he’s ever done is take pictures of nude children. It’s to

give the jury a fair portrait of who my client is, and who

he is, all of that, is relevant for the jury’s consideration.”

R. 77 at 182. Against that backdrop, the prior acts of

alleged molestation were not relevant to anything

that the defense had placed in issue. Alternatively, any

probative value that the molestation evidence might

have was grossly outweighed by the prejudicial impact

of the evidence, which counsel asserted would be “devas-

tating” to the defense. R. 77 at 181; see also R. 74 at 14.

The court concluded that Russell had opened the door

to the evidence. The court recognized the “inherently

16 No. 10-2259

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 photo-

grapher 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 testi-

mony 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

No. 10-2259 17

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-examina-

tion 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 previ-

ously denied that her father had touched her inappro-

priately 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 gov-

ernment’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 weeks prior to

trial and until that time had repeatedly denied any inap-

18 No. 10-2259

propriate touching by her father. Consistent with the

limitation imposed by the district judge, neither party

elicited any of the details concerning the prior acts of

molestation, including how many such acts there had

been. In its final jury charge, the court, consistent with

Rule 404(b), limited the jury’s consideration of these acts

to Russell’s motive, intent, identity, or absence of

mistake or accident. R. 40 at 26; R. 79 at 108 (Instruction

No. 18).

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 willing-

ness to engage in sexual activity is suggested;

(6) whether the visual depiction is intended or de-

signed 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

No. 10-2259 19

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 de-

fendant’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

20 No. 10-2259

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 pros-

ecution for the images referenced in Counts One

through Four was, in Russell’s words, “a possibility.”

R. 77 at 209. The government argued, and the district

court agreed, that Russell’s decision to leave the country

shortly after that meeting supported an inference that

Russell was fleeing the country to avoid prosecution,

and that his flight in turn was evidence that he was

conscious of his guilt. Over a defense objection, the gov-

ernment was allowed to establish on cross-examination

of Russell that he knew criminal charges were a possibil-

ity as a result of the July 2007 meeting, and that he and

his wife left the country a short time later.2 Although

the court granted the defense permission to elicit any

additional testimony that would cast Russell’s departure

in a more favorable light, it chose not to inquire of

Russell or any other witness on this subject. In its final

instructions, the court advised the jury that:

The intentional flight by a defendant immediately

after he is accused of a crime that has been commit-

ted is not, of course, sufficient in itself to estab-

lish his guilt; but it is a fact which, if proved, may

be considered by the jury in light of all of the

2

Subsequently, in late 2009, the Mexican authorities put

Russell on a plane to Los Angeles, where he was arrested at the

airport.

No. 10-2259 21

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 testi-

mony 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

22 No. 10-2259

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 with-

out being the worst of the worst,” R. 81 at 118. Russell

had not only victimized his children by taking the photo-

graphs, but in view of their widespread distribution

to other pedophiles, the injury was repeated ad infini-

tum. “And you can’t change that. You can’t pull that

back. You can’t put that genie back in the bottle. That’s

harm done that gets multiplied over and over again.” R. 81

at 118. The court concluded,

[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

No. 10-2259 23

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, section 2251(a) provides:

Any person who employs, uses, persuades, induces,

entices, or coerces any minor to engage in . . . any

sexually explicit conduct for the purpose of pro-

ducing any visual depiction of such conduct . . . shall

be punished . . . if such person knows or has reason

to know that such visual depiction will be trans-

ported 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 trans-

ported in or affecting interstate or foreign commerce

by any means, including by computer, or if such

24 No. 10-2259

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.

18 U.S.C. § 2251(a). As we have noted, “sexually explicit

conduct” is defined to include, among other acts, the

lascivious display of one’s genitals or pubic area. 18 U.S.C.

§ 2256(2)(A)(v). Thus, when a photographer persuades

or induces a minor to pose for a photograph in such a

way that she lasciviously displays her genital or pubic

area, he violates the statute, assuming there is the

requisite link to interstate or foreign commerce. In this

case, the subsequent discovery of the charged images on

a computer in Canada, as well as Russell’s use of a

camera that had been manufactured in Japan to

produce the charged images, demonstrated sufficient

links to interstate or foreign commerce. There was no

dispute that Jane Does 1 and 2 were minors, and the

defense essentially conceded that Russell had persuaded,

induced, or enticed them to be photographed in the

nude. The sole question for the jury was whether the

charged photographs reflected sexually explicit conduct.

The statute does not define what constitutes a lascivious

display of the genitals or pubic area. Generally speaking,

as we noted earlier, a lascivious display is one that calls

attention to the genitals or pubic area for the purpose of

eliciting a sexual response in the viewer. United States v.

Knox, supra, 32 F.3d at 745; United States v. Steen, supra,

634 F.3d at 828. And, as we have also noted, more than

nudity is required to render a photograph lascivious;

No. 10-2259 25

rather, “the focus of the image must be on the genitals or

the image must be otherwise sexually suggestive.” United

States v. Griesbach, supra, 540 F.3d at 656 (coll. cases).

Beyond that, no settled test has emerged in the more

than forty years since section 2251 was enacted to ascer-

tain what renders a photo sexually suggestive so as to

be deemed lascivious. Instead, the question is left to

the factfinder to resolve, on the facts of each case,

applying common sense. See United States v. Frabizio, 459

F.3d 80, 85-86 (1st Cir. 2006).

As we have also noted, the jury in this case was in-

structed 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

26 No. 10-2259

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 eval-

uation 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 impor-

tance 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 exhibi-

tion 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 them-

selves, 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

No. 10-2259 27

sexually suggestive nature of a photograph of a minor

which distinguishes a depiction of simple nudity from a

lascivious exhibition of the genitals, Griesbach, 540 F.3d

at 656, children typically are not mature enough to

project sexuality consciously; instead, as the Ninth

Circuit has pointed out, it is often the photographer

who stages the picture in such a way as to make it

sexually suggestive. United States v. Arvin, 900 F.2d 1385,

1391 (9th Cir. 1990). This Circuit held in United States

v. Burt, 495 F.3d 733, 741 (7th Cir. 2007), that prior acts of

molestation were admissible to show that the defendant

was not simply a legitimate photographer who happened

to have taken non-sexual photographs of nude children,

as his counsel suggested in his opening statement,

but rather had deliberately created sexually suggestive

photographs that were meant to elicit a sexual response

in the viewer. Burt illustrates one way in which the photo-

grapher’s motive or reason for creating an image can be

a relevant factor for the factfinder to consider in

deciding whether that image reflects mere nudity or a

lascivious display of the genitals. In a like vein, the sixth

Dost factor asks whether the charged image was “in-

tended or designed” to elicit a sexual response in the

viewer, and although certain aspects of the image itself

will often speak to that question (for example, the

setting, and the pose assumed by the minor and any

other persons depicted), the photographer’s state of mind

may also inform this assessment. See id. (noting that

the jury was instructed on this same factor).

This is simply to say that a defendant’s intent or motive

in creating an image are potentially relevant considera-

28 No. 10-2259

tions, 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 circum-

stances, 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 “las-

civious 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 proba-

tive 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 Defen-

dant’s views toward nudity and the art that in-

fluenced 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).

No. 10-2259 29

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 under-

stand Russell’s defense, one of the reasons why

Russell testified about his own practice of nudism

was to establish that he viewed nudity as a perfectly

natural, normal, and wholesome state of being—far less

unusual, evocative, and suspect than others might

consider it to be. And when Russell testified that his

daughters had attended nude resorts with him and his

wife and had joined him in the practice of nudism, he

evidently did so in order to suggest that it was not at all

unusual or suspect for his daughters to be nude in

settings where other people would be clothed. Similarly,

when Russell testified that he took many thousands of

photographs annually, among them many photographs

of his daughters, both nude and clothed, the point of

his testimony was to suggest that there was nothing

unique or suspect about him taking photographs of his

daughters in the nude. This, we surmise, was the “back-

ground” and “context” that Russell meant to establish

with his testimony about nudism—that to be nude, to be

seen in the nude, and to be photographed in the nude

in settings where prevailing social norms would expect

one to be clothed—is not necessarily meant to convey

a sexually provocative message.

30 No. 10-2259

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 men-

tioned 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-examina-

tion 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

No. 10-2259 31

120; R. 77 at 55-56. Those questions were clearly aimed

at conveying to the jury that Russell’s purpose in photo-

graphing 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 differ-

ent 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 molesta-

tion 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 barring evidence of the prior acts of inappropriate

touching, seemed to envision that Russell could testify

that the charged photographs were consistent with his

own practice of nudism and his daughters’ participation

in nudist activities and that the photos were not inappro-

priate, sexually charged images, without opening the

door to evidence that he had previously touched Jane

Doe 1 inappropriately. But in retrospect, we doubt

that there was any way in which Russell could have

testified as envisioned on the subject of nudism without

calling into question his purpose and motive in taking

the charged photographs. Although defense counsel

repeatedly characterized Russell’s testimony on this

subject as mere “background” and “context,” it was

32 No. 10-2259

necessarily meant to explain how and why Russell could

be posing and photographing his daughters in the nude

without intending or understanding the resulting photo-

graphs to be sexually explicit images. This is the only

sense in which the testimony about nudism could pos-

sibly have been relevant—to the extent it was relevant

at all—and to our mind it necessarily opened the door

to other evidence bearing on Russell’s motive and

purpose in creating the charged images. In any case, the

district court could not know to what extent Russell

might be placing his state of mind in issue until it

heard the testimony elicited by the defense on the

subject of nudism. By eliciting testimony not only that

the photographs were consistent with the practice of

nudism by Russell and his daughters, that he took many

photographs of his daughters both clothed and in the

nude, that in the case of the photographs taken at the

gymnasium, it was his daughters who chose to be naked,

that some of the poses his daughters assumed when

photographed without clothes were not his doing, and

that, to the extent he did give his daughters direction

when photographing them in the nude, he did so in the

same manner as he did when they were clothed, and

that he believed there to be nothing inappropriate

about the photographs, the defense did much more

than elicit generic evidence as to his background and

character. The defense undeniably sought to suggest

that Russell had no motive or intent to create sexually

provocative photographs of his daughters.

We note that the government relied on both Rule 404(b)

and Rule 414 of the Federal Rules of Evidence in seeking

No. 10-2259 33

the admission of the molestation evidence. Rule 404(b),

of course, allows evidence of a defendant’s “other

crimes, wrongs, or acts” for purposes other than to

show the defendant’s propensity to commit the charged

offense, including “proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence

of mistake or accident.” Rule 414, which applies to cases

in which the defendant is accused of “an offense of

child molestation”—defined broadly to include the types

of sexual exploitation proscribed by section 2251(a), see

Rule 414(d)(2)—authorizes the admission of evidence

that the defendant has committed other acts of child

molestation “for its bearing on any matter to which

it is relevant,” including a defendant’s propensity to

commit the charged offense. Rule 414(a) (emphasis sup-

plied).

In this case, however, the court appears to have relied

on Rule 404(b) alone in admitting the molestation

evidence, as it gave an instruction advising the jury that

it could consider this evidence “only on issues of

motive, intent, identity, or absence of mistake or accident

in reference to the offenses charged in the indictment.”

R. 40 at 26; R. 79 at 108 (Instruction No. 18). As we

believe the molestation evidence was relevant to

Russell’s motive and intent in taking the charged photo-

graphs, we agree that Rule 404(b) supported the admis-

sion of this evidence.

Russell contends that because this evidence related

to alleged acts of molestation, which obviously were

different from the charged offense of creating and distrib-

34 No. 10-2259

uting child pornography, the evidence was inadmis-

sible. But a prior act need not be the same as the charged

offense in order to be relevant under Rules 404(b) or 414.

See, e.g., United States v. Tylkowski, 9 F.3d 1255, 1261 (7th

Cir. 1993). Indeed, we recognized in United States v.

Sebolt, 460 F.3d 910, 917 (7th Cir. 2006), that where a

defendant is charged with an offense involving child

pornography, prior acts of molestation can be relevant

to his motive. The defendant in Sebolt was charged with,

among other offenses, advertising child pornography

online, in violation of 18 U.S.C. § 2251(d)(1)(A). At

trial, the district court admitted evidence that he had

molested, and attempted to molest, multiple minors

(including one of his relatives). We deemed that evidence

relevant and admissible under Rule 404(b) because it

was “strong evidence of his motive to advertise child

pornography online.” Id. at 917. “Prior instances of sexual

misconduct with a child victim,” we reasoned, “may

establish a defendant’s sexual interest in children and

thereby serve as evidence of the defendant’s motive

to commit a charged offense involving the sexual ex-

ploitation of children.” Id. (citing United States v.

Cunningham, 103 F.3d 553, 556 (7th Cir. 1996)); see also

United States v. Rogers, 587 F.3d 816, 821 (7th Cir. 2009)

(repeating the same point). We acknowledged that “[t]he

motive to molest children does not completely overlap

with the propensity to possess, transport, or advertise

child pornography.” Sebolt, 460 F.3d at 917. Yet, “the

conceptual gap between molestation and child pornogra-

phy is not so wide as to ‘induce the jury to decide the

case on an improper basis . . . rather than on the evidence

No. 10-2259 35

presented.’ ” Id. (quoting United States v. Thomas, 321

F.3d 627, 730 (7th Cir. 2003)). Sebolt disposes of Russell’s

argument on this point.

Although the incidents of inappropriate touching were

removed in time from the creation of the charged photo-

graphs 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 con-

spiring to travel in foreign commerce with intent to

engage in illicit sexual conduct supported inference

that defendant was a pedophile and was therefore proba-

tive 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, refer-

encing 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 sup-

ports the government’s theory that Russell enticed and

persuaded his daughters to pose in the nude for the

36 No. 10-2259

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 occurred one to two

years before Russell photographed his daughters did

not defeat that inference or render it less plausible.

Pedophiles do not suddenly stop being pedophiles. See,

e.g., Pessimism About Pedophilia, 27 Harvard Mental

Health Letter No. 1, at 1 (July 2010) (“Like other sexual

orientations, pedophilia is unlikely to change.”); Ryan C.

Hall, M.D. and Richard C. Hall, M.D., A Profile of

Pedophilia: Definition, Characteristics of Offenders, Recidivism,

Treatment Outcomes, and Forensic Issues, 82 Mayo Clinic

Proc. 457, 465 (April 2007) (“[T]the urges can be managed,

but the core attraction does not change.”). Even if

Russell had not molested either of his daughters in the

intervening year or two, it is highly unlikely that his

desire to engage in sexual contact with them or with

other young girls had suddenly dissipated in that period

of time.

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

No. 10-2259 37

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-examina-

tion 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 Coun-

cil 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, re-

search 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 T HE APSAC

H ANDBOOK ON C HILD M ALTREATMENT 233, 234-38 (John

E.B. Myers, ed.) (3d ed. 2011). Whether Jane Doe 1’s testi-

mony 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

38 No. 10-2259

on this subject, thus allowing the jury to weigh her testi-

mony appropriately.

B. Exclusion of Nudism Expert and Books Containing

Photographs of Nude Families and Children

Russell contends that the district court abused its dis-

cretion 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 Bauer’s proffered testi-

mony on the practice of nudism in the United States

would have corroborated Russell’s own testimony on

that subject and would have placed his own family’s

experiences and practices in a broader context. The books,

Russell reasons, would have been relevant to the jury’s

determination of his own motives for photographing

his children in the nude and “would have given

his photographs some context within the broader

universe of artistic appreciation for nudes, including

nude children, as a long-time subject of photographers.”

Russell Br. 21.

The court did not abuse its discretion in excluding

Bauer’s testimony. We may assume that Bauer was quali-

fied 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,

No. 10-2259 39

why his daughters would have agreed to be photo-

graphed by Russell without clothing, and what Russell’s

purpose was in creating the charged images of his daugh-

ters. Frankly, however, we have a difficult time under-

standing 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 mini-

mally 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

40 No. 10-2259

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. Rus-

sell’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.

See New York v. Ferber, 458 U.S. 747, 760-61, 102 S. Ct.

3348, 3356-57 (1982). Moreover, as the district court

pointed out, simply because other works featuring nude

photographs of children have been published does not

necessarily mean that those photographs are not lascivi-

ous. R. 177 at 132-33. Excluding the published works

appropriately kept the trial’s focus on the charged photo-

graphs and whether they were lascivious.

No. 10-2259 41

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 possi-

bility of filing federal charges against him. The gov-

ernment was permitted to elicit this fact from Russell on

cross-examination, and in its closing argument, it char-

acterized 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

42 No. 10-2259

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 crim-

inal 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 (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 con-

sciousness 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

No. 10-2259 43

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 propri-

ety 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 govern-

ment characterizes as flight, the inference that the defen-

dant 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 suffi-

ciently 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 deci-

sion. Russell’s departure for Mexico occurred shortly

after he and his counsel, at the meeting with federal

prosecutors, were shown the photographs that eventu-

ally formed the basis for his indictment and were ad-

vised 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

44 No. 10-2259

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, notwith-

standing 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 war-

No. 10-2259 45

rant 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 the photographs

that would eventually form the basis for his indictment.

It was not until more than a year and a half later that

Indiana authorities learned of the images of Jane Does 1

and 2 that were discovered on the computer of a

Canadian citizen. And it was not until Russell and his

attorney met with federal prosecutors in July 2007, were

shown copies of those photographs, and were told that

criminal charges were a possibility that he knew that the

government was prepared to indict him. So the fact that

he did not leave the country when he first learned he

was under investigation is by no means dispositive of

the probative value of his departure. As the Sixth Circuit

has observed, it is either “the sudden onset or the

sudden increase in fear in the defendant’s mind that he

or she will face apprehension for, accusation of, or con-

viction of the crime charged” that renders his ensuing

flight probative. United States v. Dillon, 870 F.2d 1125, 1128

(6th Cir. 1989) (emphasis in original). Certainly Russell’s

meeting with prosecutors could have caused a sudden

increase in his fear of prosecution. He was not told that

charges were certain or even likely, by Russell’s account;

yet, the meeting certainly upped the odds that charges

would materialize, and for that reason Russell’s exit

from the country soon after that meeting was proba-

tive of his consciousness of guilt, as the district court

reasoned.

46 No. 10-2259

This is true notwithstanding the lack of other evi-

dence 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 relo-

cated, 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 govern-

ment 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 instruc-

tion. We note finally that the district court gave Russell’s

counsel leeway to show, through Russell or other wit-

nesses, 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.

No. 10-2259 47

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 18 U.S.C. § 3553(a) and therefore is substantively

unreasonable in light of certain mitigating aspects of his

offense as well as his lack of prior criminal history and

other favorable personal circumstances.

The Sentencing Guidelines called for a life sentence in

Russell’s case. Most federal statutes do not authorize a

life term, and 18 U.S.C. § 2251(e), which specifies a maxi-

mum term of thirty years, is no exception. The Guide-

lines Manual does not specify a means of converting a

life term into a determinate period of years or months.

However, the Sentencing Commission has equated life

imprisonment with a term of 470 months. U.S. Sentencing

Commission, 2010 S OURCEBOOK OF F EDERAL S ENTENCING

S TATISTICS, app. A, at 2 (15th ed. 2010) (“Length of Impris-

onment”), available at http://www.ussc.gov/Data_and_

S ta t is t i c s / A n n u a l _ R e p o r t s _a n d _ S o u rc e b oo k s/ 20 1 0 /

Appendix_A.pdf (last visited Nov. 7, 2011). The 456-

month sentence imposed by the district court in this case

is slightly below that term. At the same time, the Guide-

lines, in cases involving multiple counts of conviction,

direct the court “to impose maximum and consecu-

tive sentences to the extent necessary to make the total

punishment equal in severity to what the guidelines

would require were it not for the statutory maxima.”

United States v. Veysey, 334 F.3d 600, 602 (7th Cir. 2003)

48 No. 10-2259

(citing U.S.S.G. § 5G1.2(d)). Following that approach

here would result in four consecutive terms of thirty

years, for a total of 120 years. See United States v. Noel,

supra, 581 F.3d at 495 & n.4, 500; United States v. Glover,

409 F. App’x 13, 15 (7th Cir. 2011) (nonprecedential deci-

sion); United States v. Metzger, 411 F. App’x 1, 3-4 (7th Cir.

2010) (nonprecedential decision). Obviously Russell’s

sentence is far below that term. Regardless of which

benchmark we employ, we must acknowledge that

given Russell’s age at sentencing (forty-eight) and re-

maining life expectancy of roughly thirty years, see

Social Security Administration, Period Life Table (2007),

available at http://www.ssa.gov/oact/STATS/table4c6.html

(last visited Nov. 7, 2011), the sentence imposed by the

district court is, in actuarial terms, a life sentence.

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 sub-

stantively unreasonable in light of the sentencing fac-

tors set forth in section 3553(a). Mykytiuk, 415 F.3d

at 608. Russell has not met this burden.

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

No. 10-2259 49

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 through-

out 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 inad-

vertently 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 that

go out from this case go out way beyond anything

we can perceive or imagine.” R. 81 at 87. The sen-

tence that Judge Barker imposed is consistent with the

grave nature of the offense that Russell committed,

see § 3553(a)(1) and (a)(2)(A), and with the mandate

to deter those tempted to commit similar crimes, see

§ 3553(a)(2)(B).

The mitigating personal circumstances that Russell

relies on as proof that a lesser sentence would be suf-

50 No. 10-2259

ficient to satisfy the statutory sentencing criteria are

neither unique nor weighty. Yes, Russell expressed re-

morse for his acts, but only after being found guilty.

Even then, the district court detected a certain “discon-

nect” 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 ad-

vantages, and although his positive attributes may dis-

tinguish him to some degree from others who com-

mit 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, was reasonable. Cf. Noel, 581

No. 10-2259 51

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 A FFIRMED.

G OTTSCHALL, 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 admissi-

bility of molestation evidence in the event that the de-

fendant testified.

I agree that it was well within the district court’s discre-

tion 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 Rule 403 considerations, recog-

nizing that the evidence of molestation was remote in

time, while also recognizing that the evidence would

be extremely prejudicial.

52 No. 10-2259

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 evi-

dence:

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 evi-

dence, but if the defense does not present evidence

on issues that would be—that would make this rele-

vant 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 con-

sistent 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 31.)

The district court had already excluded the testimony

of Russell’s nudism expert. Thus, Russell’s own testi-

mony 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

No. 10-2259 53

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 ad-

hered 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 31.)

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 (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 (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 Rule 404(b), and that

the probative value of the testimony outweighed its

prejudicial effect under Rule 403. But in my view, when

a district court revisits a pretrial ruling after a party

has materially changed its position in reliance thereon,

the court should at least consider the prejudice flowing

from that reversal as part of its calculation. See, e.g., United

States v. Bensimon, 172 F.3d 1121, 1127 (9th Cir. 1999)

(holding that “the district court must consider any preju-

54 No. 10-2259

dice that will accrue to the defendant as a result of the

court’s reversal of an earlier in limine ruling,” and citing

cases from other circuits that follow this approach).

Even if the district court had considered the prejudice

flowing from its reversal of its pretrial ruling, however,

it seems likely that the court would have allowed the

molestation evidence, so central was it to the issue of

Russell’s intent.

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 photographer can be a relevant consideration in

evaluating those images.” (Maj. Op., supra at 26.) See also

United States v. Noel, 581 F.3d 490, 499-500 (7th Cir.

2009); United States v. Burt, 495 F.3d 733, 736 (7th Cir.

2007). With this clarification, both district courts and

litigants should be in a better position to evaluate the

consequences of defense evidence, whatever form that

evidence takes, that a photographer did not intend

the subject images to be lascivious.

11-10-11