Evidence — other acts

Listen to this article

United States Court of Appeals

Criminal

Evidence — other acts

Where a defendant charged with producing child pornography claims that the nude photographs were not lascivious, evidence of molestation is admissible other acts evidence.

“Although the incidents of inappropriate touching were removed in time from the creation of the charged photographs by one to two years, we do not agree with Russell that these acts were so temporally remote as to deprive the acts of touching of their relevance. The passage of one to two years might well render a defendant’s prior acts non-probative in another case, but we are not convinced that was true here, given the purpose for which they were offered. See, e.g., United States v. Julian, 427 F.3d 471, 487-88 (7th Cir. 2005) (defendant’s sexual assault of minor twelve years prior to charged offense of conspiring to travel in foreign commerce with intent to engage in illicit sexual conduct supported inference that defendant was a pedophile and was therefore probative of his knowledge and intent vis-à-vis resort for pedophiles he and co-defendant established); United States v. Saunders, 166 F.3d 907, 917 & n.14 (7th Cir. 1999) (portion of threat letter sent to judge, referencing defendant’s stabbing of correctional officer some eighteen months earlier, was probative of defendant’s intent to instill fear in his victim). The inference that the government wished the jury to draw from Jane Doe 1’s testimony that her father had touched her sexually was that Russell is a pedophile. We agree, as the district court did, that her testimony supports that inference. See Julian, 427 F.3d at 488. And that inference in turn supports the government’s theory that Russell enticed and persuaded his daughters to pose in the nude for the purpose of creating sexually suggestive photographs that he could sell to or otherwise share with other pedophiles on the Internet. That the inappropriate touching Jane Doe 1 reported had 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.”

Affirmed.

10-2259 U.S. v. Russell

Appeal from the United States District Court for the Southern District of Indiana, Barker, J., Rovner, J.