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.

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