United States v. Klug

670 F.3d 797, 2012 WL 639279, 2012 U.S. App. LEXIS 4094
CourtCourt of Appeals for the Seventh Circuit
DecidedFebruary 29, 2012
Docket11-1339
StatusPublished
Cited by44 cases

This text of 670 F.3d 797 (United States v. Klug) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Klug, 670 F.3d 797, 2012 WL 639279, 2012 U.S. App. LEXIS 4094 (7th Cir. 2012).

Opinions

TINDER, 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 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 pornography. 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 interview, 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 equipment, agents uncovered 59,-000 still images of child pornography and 12,000 videos of child pornography (the 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 [799]*799private 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 witnesses. 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, 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 repeatedly 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 “[tjhere 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 encountered. 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 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 nec[800]*800essary 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 “hardcore pornography that depicts children being raped by adults or engaged in explicit sexual activity with other children.” 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 procedural error.

Because Klug’s overall prison sentence is below the guidelines range, we apply a presumption of reasonableness. See Rita v. United States, 551 U.S. 338, 347-56, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Tanner, 628 F.3d 890

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Bluebook (online)
670 F.3d 797, 2012 WL 639279, 2012 U.S. App. LEXIS 4094, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-klug-ca7-2012.