United States Court of Appeals For the Seventh Circuit
Sentencing — child pornography
It was not error for the district court to find a photograph of a boy in a bathtub to be pornographic.
“The district court’s sensible reliance on the photo’s failure to show the boy’s whole body, and the resulting focus on the genitals, would be enough to survive clear error review, but there is more. Above all, Schuster’s intent and motive in photographing the boy in that specific way also support the district court’s finding. The evidence was plentiful that Schuster collected child pornography (he called it an ‘addiction to child pornography’) and had a sexual interest in young boys. That sexual interest sheds light on why Schuster took the photograph of a nude boy’s genitals, and whether the image is sexually suggestive rather than, as Schuster argues, some sort of innocent mistake. In addition to this sexual interest in young boys generally, the government also presented evidence that Schuster had a sexual interest in this boy specifically. According to the boy, Schuster pulled down the boy’s pants and asked to touch the boy’s ‘privates.’ PSR ¶ 30. The boy told Schuster ‘no,’ but Schuster ‘did it anyway.’ Id. The victim went to the bathroom, told Schuster he did not need help, but Schuster rubbed the boy’s penis with toilet paper when the boy was done using the bathroom. Id. Schuster argues that he was simply trying to help the boy clean up after going to the bathroom, but the boy’s description of the contact proves otherwise. Schuster’s intent and motive support the district court’s finding, and we conclude that the district court did not clearly err in finding that the photo depicted the lascivious exhibition of genitals.”
Appeal from the United States District Court for the Western District of Wisconsin, Crabb, J., Chang, J.