In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1339
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JOSEPH E. K LUG ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 10-CR-30033-MJR—Michael J. Reagan, Judge.
A RGUED O CTOBER 4, 2011—D ECIDED F EBRUARY 29, 2012
Before C UDAHY, F LAUM, and T INDER, Circuit Judges.
T INDER, Circuit Judge. Joseph E. Klug pleaded guilty to
producing and possessing child pornography. See 18
U.S.C. §§ 2251(a), 2252(a)(4)(B). After calculating an
imprisonment range of life, the district court sentenced
Klug to a total of 384 months. On appeal, Klug argues
that his prison sentence is unreasonably long. We affirm
the judgment.
Klug came to the attention of law enforcement after
an FBI agent, using a peer-to-peer network, discovered
2 No. 11-1339
that an Internet address assigned to Klug was being
used to share child pornography. After agents learned
that Klug held a leadership position in the Royal
Rangers, a children’s youth ministry, they executed a
search warrant at his residence. Agents interviewed
Klug, and he confessed to having a large collection of
child pornography. He also admitted to surreptitiously
filming boys he supervised on Royal Rangers camping
trips or encountered in the locker room of his health club.
During camping trips Klug had hidden a camera in
his backpack to film boys showering. On one occasion,
he used a hidden camera to film a boy changing clothes
while in a tent; this filming also happened to record
the boy masturbating. And after one camping trip he
brought a boy back to his house and then secretly
filmed him using the restroom. Klug cropped the facial
features of his subjects, who ranged from 9 to 14, before
trading those pornographic images for more child pornog-
raphy. He denied molesting any children, and the boys
he secretly filmed on the Royal Rangers trips, who
were interviewed during the investigation, did not
indicate that they perceived Klug to have touched them
in inappropriate ways. Klug conceded in his FBI inter-
view, however, that he had fantasized about the
children, wishing to perform oral sex on them, and that
he went out of his way to be physically close with
them, brushing up against them, squeezing shoulders
and patting backs.
When examining Klug’s computers and related equip-
ment, agents uncovered 59,000 still images of child por-
nography and 12,000 videos of child pornography (the
No. 11-1339 3
latter being equivalent for guidelines purposes to 900,000
still images, see U.S.S.G. § 2G2.2 cmt. n.4(B)(ii)). Those
images include depictions of sexual abuse, bestiality,
and infants. Authorities also uncovered chat logs of
graphic exchanges between Klug and other persons
interested in child pornography. The chats revealed
Klug’s fantasies about molesting children, as well as
solicitations for videos from private collections and
advice from Klug on how to sexually violate children.
The district court calculated an imprisonment range
of life based on Klug’s total offense level of 43 and
criminal history category of I. Before the court imposed
sentence, the government presented testimony from
the FBI agent who investigated and interviewed Klug. The
government also submitted statements from children
depicted in Klug’s collection of child pornography. The
parents of one of the boys filmed by Klug submitted
separate written statements describing how Klug’s
actions left them unwilling to entrust their son with
male chaperones. The boy’s mother explained that her
son does not know he was taped but she experiences
significant anxiety from knowing that one day he will
find out. Klug testified, too, and called his parents and
his wife, as well as several friends, as character wit-
nesses. Klug apologized to the court, his victims, and
his family for his “selfish” and destructive behavior, and
he told the court that he was seeking counseling for
his addiction to child pornography.
In explaining the prison sentence, the district judge
began by noting that he credited all of the testimony,
4 No. 11-1339
including Klug’s character witnesses. The judge balanced
Klug’s spotless criminal history against his total offense
level, the highest listed in the guidelines. The judge
first addressed Klug’s conviction for producing child
pornography, highlighting that Klug had abused his
position of trust by filming boys he supervised and
then distributing their images on the Internet. The judge
pointed to a victim impact statement he had seen repeat-
edly in child-pornography cases and deemed particularly
compelling: The victim depicted in the “Vicki series,”
which Klug possessed, explains in her victim impact
statement that her “whole world came crashing down”
when she discovered that the videos that her father
made while raping her were circulating on the Internet.
Echoing the concerns of the mother of one of the boys
Klug had filmed, the judge explained that, although
the boys were not yet aware that images of them were
circulating, he found it troubling that “[t]here will come
a time when they recognize that out of their control is
an image of their body, whether their face is visible
or not, that is being bought and sold and traded like a
chattel.” The judge then moved on to Klug’s conviction
for possession, pointing out that his collection of child
pornography was the largest the judge ever had encoun-
tered. The judge expressed concern that Klug’s massive
collection had not satiated his addiction and instead,
he continued to try to increase the collection, which
prompted the judge to question whether physical
abuse would have been Klug’s next step.
The judge highlighted Klug’s chat logs, which he
found particularly troubling. Klug had created an online
No. 11-1339 5
fantasy life in which he has at least one son, and in one
of those chats introduced at sentencing, he recounts
performing oral sex on the boy “so that he could
learn what it was like” and, in another incident, sexually
molesting the boy and the boy’s friend during a trip
to Toronto. The chats also include Klug coaching a
chat partner about grooming children for sex, achieving
penetration, and concealing the abuse. Klug instructed
that chat partner to warn young victims not to tell
anyone what had happened because disclosure would
embarrass them. In addition, Klug asked a trading
partner to create child pornography for him.
The district court could have sentenced Klug to a total
of 40 years (30 years for production and a consecutive
10 years for possession). See 18 U.S.C. §§ 2251(e), 2252(b)(2).
But the statutory maximum, the judge reasoned,
was greater than necessary given Klug’s employment
history and supportive spouse, and the absence of any
history of sexual abuse or drug abuse. The judge settled
on a total of 384 months.
On appeal Klug contends that 384 months in prison is
too harsh. An overall sentence of that magnitude, Klug
reasons, should be reserved for producers of “hard-core
pornography that depicts children being raped by adults
or engaged in explicit sexual activity with other chil-
dren.” His videos, Klug maintains, are “categorically
different” because they only depict “children dressing
and undressing” and, “in one incident not alleged to
have been planned, masturbating.” Klug does not
argue that the sentencing court committed any pro-
cedural error.
6 No. 11-1339
Because Klug’s overall prison sentence is below the
guidelines range, we apply a presumption of reasonable-
ness. See Rita v. United States, 551 U.S. 338, 347-56
(2007); United States v. Tanner, 628 F.3d 890, 908 (7th Cir.
2010) (noting that guidelines range of life imprisonment
effectively renders “any prison sentence presumptively
reasonable on appeal”); United States v. Noel, 581 F.3d
490, 500 (7th Cir. 2009) (concluding that 80-year sentence
for producing and possessing child pornography was
presumptively reasonable given guidelines range of life
in prison). Klug does not suggest that the district court
failed to consider the information pertinent to the
factors in 18 U.S.C. § 3553(a), nor does he point to any
factors that would overcome the presumption we apply.
Instead, Klug’s stance seems to be that no harm came
to the children he filmed because there was no sexual
contact, and thus, he reasons, his prison sentence is
excessive. But Klug’s definition of harm is far too nar-
row. As the district court observed, Klug circulated
his films on the Internet and caused distinct and serious
harm to his victims by giving their images a permanent
existence and the potential for endless replication, all of
which is beyond the control of the victims. And even
though the facial features in the images were cropped
before they were traded by Klug, facial features are not
the only basis that can be used to identify or recognize
a person depicted in an image. The Supreme Court,
concluding that governments have the greatest latitude
to regulate sexually explicit images when children are
depicted, observed that child pornography is pernicious
precisely because the harm it produces is not limited to
No. 11-1339 7
the sexual abuse it depicts. “Because the child’s actions
are reduced to a recording,” the Court reasoned, “the
pornography may haunt him in future years, long after
the original misdeed took place.” New York v. Ferber, 458
U.S. 747, 760 n.10 (1982); see also Osborne v. Ohio, 495
U.S. 103, 111 (1990) (observing that “pornography’s
continued existence causes the child victims continuing
harm by haunting the children in years to come”). The
Court emphasized this point in Ashcroft v. Free Speech
Coalition, observing that “as a permanent record of a
child’s abuse, the continued circulation itself would
harm the child who had participated.” 535 U.S. 234, 250
(2002). As with defamatory statements, the Court ex-
plained, every publication of the image “would cause
new injury to the child’s reputation and emotional
well-being.” Id. Indeed, in the years since Ferber was
decided, federal courts have focused on the enduring
harm to the child victims in concluding that child pornog-
raphy offenses warrant harsh sentences. See United
States v. Blinkinsop, 606 F.3d 1110, 1118 (9th Cir. 2010)
(observing that laws punishing receipt and possession of
child pornography create incentive to destroy materials
and thus alleviate the continuing harm inflicted on child
victims whose “images have been preserved in a perma-
nent medium”); United States v. Daniels, 541 F.3d 915, 924
(9th Cir. 2008); United States v. Goff, 501 F.3d 250, 259 (3d
Cir. 2007); United States v. Gross, 437 F.3d 691, 693 (7th Cir.
2006); see also Child Pornography Prevention Act of 1996,
Pub. L. No. 104-208, § 121, 110 Stat. 3009, 3009-26 (1996)
(setting out Congressional finding that “the creation or
distribution of child pornography which includes an
8 No. 11-1339
image of a recognizable minor invades the child’s
privacy and reputational interests, since images that are
created showing a child’s face or other identifiable
feature on a body engaging in sexually explicit conduct
can haunt the minor for years to come”).
Moreover, this court has upheld lengthy sentences for
defendants involved in producing child pornography,
even where the victims were not molested in the process.
In Noel an 80-year sentence was affirmed under nearly
identical circumstances. 581 F.3d at 500. The defendant
in Noel babysat the young son of his stepbrother but
abused his position of trust by taking nude photos of
the child while he slept. Id. at 493. He was convicted
of multiple counts of producing child pornography
based on those photographs and was also convicted
of possessing those images and other images of child
pornography from different sources. Id. A total offense
level of 48 and criminal history category of I yielded a
guidelines range of life in prison, id. at 495, and Noel
argued that 80 years was unreasonable. Id. at 500. Despite
the absence of sexual abuse, the presumption of reason-
ableness allowed this court to “quickly dismiss Noel’s
argument” that his sentence was too long. Id.
Similarly, in United States v. Newsom, we upheld a
total sentence of 324 months’ imprisonment for a defen-
dant convicted of crimes related to child pornography,
including a count of production based on surrepti-
tious films of his own daughter and a former girlfriend’s
daughter. 428 F.3d 685, 689-90 (7th Cir. 2005). The period
of imprisonment was within the guidelines range and
No. 11-1339 9
included the statutory maximum for the production count
(240 months at that time). Id. at 686. The defendant
argued that the amount of prison time was excessive
because, in his view, the term “was far longer than sen-
tences imposed on other defendants whose crimes were
worse than his own.” 428 F.3d at 689. We began by em-
phasizing that Ҥ 3553(a) does not ban all disparities;
its concern is only with unwarranted disparities.” Id. We
then concluded that the defendant’s comparisons to
“other defendants whose crimes were worse than his
own” were not enough to overcome the presumption
of reasonableness. Id.
Although Klug does not use the term “marginal deter-
rence,” see United States v. Beier, 490 F.3d 572, 575 (7th
Cir. 2007), he essentially contends that others will not
be deterred from producing “hard-core” child pornogra-
phy because his own sentence would not have been
higher even if he had produced child pornography by
sexually abusing the boys in his care. But we have explic-
itly rejected the utility of marginal deterrence in cases
involving the production of child pornography. See
United States v. Maulding, 627 F.3d 285, 288 (7th Cir. 2010);
Beier, 490 F.3d at 575; Newsom, 428 F.3d at 689-90. We
explained in Beier that marginal deterrence does not
mandate that “crimes of different gravity must never be
punished the same. It is that punishing two crimes of
different gravity the same is unsound when to do so
would encourage additional crimes.” Beier, 490 F.3d at
575. The theory of marginal deterrence does not aid
defendants like Klug who produce child pornography
because “child pornographers who molest the children
10 No. 11-1339
whom they photograph can be punished separately for
molestation.” Id. Thus, even though the young victims
in this case were not physically molested in the process
of the production of the child pornography, we do not
conclude that the sentence imposed was unreasonable
in light of all of the evidence presented to and properly
considered by the district court.
Because Klug’s reasonableness challenge is without
merit, we A FFIRM the judgment.
C UDAHY, concurring. I join the majority opinion be-
cause I agree that the sentence is within the guidelines
and therefore presumptively reasonable and, particularly
in the case of this multifaceted crime, much is left to
the discretion of the sentencing judge after consulting 18
U.S.C. § 3553. Admittedly, however, this leaves many
questions unanswered and many possible questions
unasked. These questions relate, among other things,
to what are the primary evils sought to be reached by
the prosecution of various strands of child pornography,
what are the relationships, if any, between many different
sorts of violations and what are the prospects for repeat
offenses by those who have been severely punished
for these offenses. It may be a matter of consequence
No. 11-1339 11
that the district court itself at the time of sentencing
announced that the crime in question was one it did not
understand. I am sure it was not alone in this sentiment.
The most well-known and authoritatively established
evil of child pornography production is the overt ex-
ploitation of children as performers in pornographic
depictions. The role of performers as victims is il-
lustrated by the distinction drawn by the Supreme Court
between real human performers and virtual images. See
Ashcroft v. Free Speech Coalition, 535 U.S. 234, 240, 249
(2002) (noting that children are “exploited by the pro-
duction process” and that child pornography is “a perma-
nent record of a child’s abuse”). The present case pre-
sents the producer not as a coercive manipulator of chil-
dren but as a sort of “peeping Tom” catching children
at intimate moments and exposing them for the world
to see. What difference, if any, do these circumstances
make?
This brings us to a second violation, uncharged but
evident here—distribution of pornographic images. Here,
one of the key evils to be reached by prosecution is
the exposure of pictured children to widespread humilia-
tion. The district court in its sentencing discussion em-
phasized this aspect of things by citing the profound
effect on it of the “Vicki video” victim impact statement
by the subject of that video who was deeply distressed
by the broad circulation of identifiable images of her
being raped by her father. However, the present video
differs in that the victims’ identities have been excised.
How does this weigh on the scales? Of course, a perhaps
12 No. 11-1339
more obvious factor in the analysis is the one argued
most strenuously by the defendant: namely that the
images portrayed on his videos of showering, disrobing
and even masturbating are relatively mild stuff com-
pared with forcible rape.
The other violation charged here involves possession
of pornographic images in quantities apparently rarely
equaled. As explicated in Ashcroft, the primary evil here
is the creation of a market for the production of images
involving the evils already briefly described. Since posses-
sion carries a maximum sentence of ten years, it does not
figure as significantly in sentencing controversy. But it,
as well as other child pornography offenses, leads to
the issue that has involved almost unlimited specula-
tion but few conclusions: does violation of the child
pornography statutes predict actual physical child abuse,
which most analysts regard as the most dangerous evil
of this complex. In the present case, there was no
evidence that the defendant had committed physical
child abuse and, although the district court raised the
issue whether the pornography offenses pointed in that
direction, left the question as undemonstrated or at
least unproven. The district court thus followed in the
wake of numerous opinions in many circuits that have
speculated, called for more research or merely assumed
what seemed likely conclusions. Several courts of
appeals have begun to more aggressively review these
cases for substantive reasonableness. See, e.g., United
States v. Apodaca, 641 F.3d 1077 (9th Cir. 2011); United
States v. Dorvee, 616 F.3d 174 (2d Cir. 2010); see also
United States v. Grober, 624 F.3d 592, 603-10 (3d Cir. 2010).
No. 11-1339 13
These are only some of the issues presented here, and
generally in these child pornography cases about which
the guidelines and other sources of authority provide
little guidance and about which there is almost
inevitable speculation but facts or solid conclusions
are hard to come by. Under these circumstances
uniformity cannot be achieved and justice is elusive. All
the responsible contributors to the sentencing process
need to focus on a better provision of reasonable
standards as to the issues I have mentioned and many
others presented by these multifarious crimes.
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