Defendant Who Filmed Kids Showering Not Entitled to Downward Departure From CP Sentence – U.S. v. Klug

March 5, 2012 by David S. Seltzer

As a child pornography crimes defense lawyer, I was interested to read a court decision that ended with a call for better guidelines in child pornography sentencing. In United States v. Klug, the Seventh U.S. Circuit Court of Appeals upheld a long sentence for Joseph Klug, who was convicted of producing as well as possessing child pornography. Like many defendants, Klug possessed a large collection of child pornography. However, he’d also made his own by surreptitiously filming children and teens in showers, using the bathroom and changing clothes. He challenged his 384-month sentence, arguing that it was inappropriately severe given that he did not make sexual contact with the victims. The Seventh Circuit rejected this view, but one concurring judge called for improved sentencing to take such circumstances into account.

An FBI agent found Klug through a peer-to-peer file-sharing network where Klug was sharing child pornography. After agents executed a search warrant at Klug’s home, Klug confessed to possessing a large amount of child pornography. He also confessed to making secret videos of boys he supervised as an adult leader of a youth ministry on camping trips, as well as in the locker room at his gym. The surreptitious videos included a boy he’d brought back to his home using the bathroom; boys in the shower; and a boy changing clothes in a tent and masturbating. (Klug denied that this was intentional.) He then cropped out their faces before trading the videos online.

Klug was ultimately convicted of possession and production of child pornography and sentenced to 384 months in prison, below the statutory maximum. At sentencing, the judge pointed to victim impact statements he’d seen in the past, which testified about the long-term harm done to child pornography victims from knowing their images are online. The judge also expressed concern about Klug’s propensity to molest.

Klug appealed his sentence, arguing that a sentence as high as his should be reserved for those who produce videos with explicit sexual activity involving children. The videos he produced didn’t show adults exploiting children, which Klug argued should reduce his sentence. The Seventh Circuit rejected that argument. The sentence is already below guidelines, the court noted, allowing the court to presume it is reasonable. Furthermore, the court disagreed that the lack of explicit sexual conduct means the videos did not harm the victims. By circulating the videos online, the court said, Klug gave them a basically permanent existence, with a potential for endless replication. The harm this can do has been recognized by both the courts and Congress. That the facial features were removed is irrelevant, the Seventh said; bodies can be identified. Finally, it ruled that any disparity between Klug’s sentence and that of a producer of explicit material was not an unwarranted disparity. Judge Cudahy concurred with a call for more guidance in sentencing to account for performers as victims and any connection to child exploitation.

As a cyber crime criminal defense attorney, I strongly agree. In fact, the U.S. Sentencing Commission is currently in the process of examining whether child pornography sentencing is adequate and fair, a concern shared by both prosecutors and defense attorneys. Defense attorneys point to the very high sentences these crimes receive under the guidelines, which are often enhanced by sentence enhancements that are a routine part of the crime. Prosecutors and victim advocates would like better distinctions between types of crimes, so defendants can be charged according to what actually occurred. And federal judges, who depart from child porn sentencing guidelines more than for any other crime, would like flexibility. It’s not clear whether the Sentencing Commission will make those changes, or whether Congress will permit them, but as a child porn possession defense lawyer, I applaud the push for better definitions and more flexibility.

Seltzer Law, P.A., represents clients across the United States who are facing serious cyber crime charges. To learn more or speak to an experienced attorney at no further cost, call us 24 hours a day and seven days a week at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

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