Case 1:15-cr-00165-TWP-DKL Document 42 Filed 12/04/15 Page 1 of 19 PageID #: 210

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

UNITED STATES OF AMERICA,
Plaintiff,
v.
RUSSELL TAYLOR,
Defendant.

)
)
) No. 1:15-CR-0165-TWP-DKL
)
) Honorable Judge Tonya Walton Pratt
)
)
)
)

DEFENDANT’S SENTENCING MEMORANDUM AND REQUEST FOR DOWNWARD
VARIANCE
Defendant, RUSSELL TAYLOR, by and through his attorneys, BRAD BANKS, ADAM
BROWER, and ERIC MASSEY, respectfully submits his Memorandum for this Court’s
consideration in determining a sentence that, while sufficient, is not more than necessary to meet
the goals of sentencing as outlined by 18 U.S.C. §3553 (a)(2).
I.

Introductory Remarks

Mr. Taylor submits to this Court as a man who is deeply remorseful and demonstratively
affected by the pain, suffering, and humiliation he has caused the victims in this case. Mr.
Taylor has had significant time to reflect on his actions and criminal conduct in this matter and is
distraught over the anguish it has caused both to the victims, their families and his own family.
Mr. Taylor’s psychological evaluation highlights numerous areas of concern which Mr. Taylor is
committed to addressing during his lengthy time of incarceration.
Mr. Taylor is prepared to accept the sentence the Court finds appropriate pursuant to the
plea agreement filed in this cause. Mr. Taylor has been incarcerated since his arrest by federal
authorities and is accepting that his incarceration in federal custody is going to continue for quite

 Case 1:15-cr-00165-TWP-DKL Document 42 Filed 12/04/15 Page 2 of 19 PageID #: 211

some time. As outlined below, the Defendant will show that a sentence in the range of 180 to
274 months is what is sufficient to meet the purposes of 18 U.S.C. §3553(a)(2).
II.

Presentence Investigation Report and §5K1.1

Mr. Taylor does not contest the calculations of the pre-sentence investigation report which
calculates his offense at a level 43. The plea agreement contemplates a §5k1.1 motion reducing
the advisory level to a level 42, and it is this level that Mr. Taylor’s memorandum will be
working from in reference to what is an appropriate sentence. Based on the factors outlined
below, the advisory level as applied to Mr. Taylor should be given little weight and an
appropriate sentence should be found to be between 180 and 274 months.
III.

Application of the Sentencing Guidelines
The reasonableness of any sentence is determined by a district court’s individualized

application of the statutory sentencing factors. Unfortunately, in this case the Court is working
with a guideline that is fundamentally different from most in that, unless applied with great care,
can lead to an unreasonably excessive sentence that is inconsistent with §3553.
Sentencing guidelines are typically developed by the Sentencing Commission using an
empirical approach based on data about past sentencing practices. United Sates v. Ritta, 551
U.S. 338, 349 (2007). However, the Commission was prevented from using the empirical
approach in formulating the Guidelines for child pornography. Instead, at the direction of
Congress, the Sentencing Commission has amended the Guidelines under §2G2.1 and 2.2 several
times since their introduction in 1987, recommending increasingly harsher penalties each time.1

1

United States Sentencing Commission, The History of Child Pornography Guidelines, Oct. 2009, available at
http://www.ussc.gov/general.20091030_History_Child_Pornography _Guidelines.pdf.

 Case 1:15-cr-00165-TWP-DKL Document 42 Filed 12/04/15 Page 3 of 19 PageID #: 212

The sentencing guideline for production of child pornography based offenses is §2G2.1,
which was part of the original 1987 guidelines.2 §2G2.1 initially provided for a base offense
level of 25 and had a single specific enhancement for the age of the child being under 12 years
appearing in the production.3 Over the years to follow, the Sentencing Commission substantially
increased the penalty for “production” offenses based primarily on congressional directives
instead of any empirical data.4 For example, in 1996 the commission increased the base level to
27 and added the often criticized 2 level enhancement for the use of a computer.5 In another
example of a congressionally directed increase, the Commission was directed under the
PROTECT Act to increase the base level from 27 to 32, also adding a number of additional
separate enhancements.6
The statistics offered by the Sentencing Commission clearly show a substantial
disapproval by the district courts of the guidelines in many instances. In fiscal year 2004, 84%
of the production cases were sentenced within the guidelines.7 By 2010 the number of cases
sentenced within the guidelines dropped to 56.8%.8 By 2011 (most recent data available), the
rate of offenders convicted of production charges that were sentenced within the guidelines

2

United States Sentencing Commission, Federal Child Pornography, Full Report to Congress, December 2012, at
249, available at http://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/sexoffense-topics/201212-federal-child-pornography-offenses/Full_Report_to_Congress.pdf
3

USSC §2G2.1 (1987)
United States Sentencing Commission, Federal Child Pornography, Full Report to Congress, December 2012, at
249, available at http://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/sexoffense-topics/201212-federal-child-pornography-offenses/Full_Report_to_Congress.pdf
4

5

Id.
Id.
7
Id at 254.
8
Id.
6

 Case 1:15-cr-00165-TWP-DKL Document 42 Filed 12/04/15 Page 4 of 19 PageID #: 213

dropped to 50.4%.9 Of the offenders convicted of production offenses, 38.1% received below
range sentences, which did not include those receiving departure for substantial assistance.10
The child pornography guidelines have been the subject of intense scrutiny leading to a
criticism of their application by district courts. Much of the criticism surrounds distribution
cases as they are more prevalent. However, the implications apply to production charges as well.
Judges across the country have been critical of the guidelines in child pornography cases,
especially the fact that the increase in the guidelines are based on congressional directives as
opposed to empirical evidence.11

9

Id.
Id. Emphasis added.
11
See also United States v. Grober, 624 F.3d 592, 600-01 (3d Cir. 2010) (applying abuse of discretion review to a
district court’s policy-based downward variance from § 2G2.2 because “the Commission did not do what ‘an
exercise of its characteristic institutional role’ required—develop §2G2.2 based on research and study rather than
reacting to changes adopted or directed by Congress”); id. at 608-09 (“Congress, of course. . . may enact directives
to the Commission which the Commission is obliged to implement,” but “Kimbrough permits district courts to vary
even where a guideline provision is a direct reflection of a congressional directive”); United States v. Dorvee, 616
F.3d 174, 188 (2d Cir. 2010) (Kimbrough’s holding that “it was not an abuse of discretion” for a district court to
disagree with the crack guidelines “because those particular Guidelines ‘do not exemplify the Commission’s
exercise of its characteristic institutional role’ . . . applies with full force to § 2G2.2.”); United States v. Henderson,
649 F.3d 955, 959-60 (9th Cir. 2011) (“[T]he child pornography Guidelines were not developed in a manner
‘exemplify[ing] the [Sentencing] Commission’s exercise of its characteristic institutional role,’ . . . so district judges
must enjoy the same liberty to depart from them based on reasonable policy disagreement as they do from the
crack-cocaine Guidelines discussed in Kimbrough.”); id. 963 n.3 (“That Congress has the authority to issue
sentencing directives to the Commission” and “that the Guidelines conform to Congressional directives does not
insulate them from a Kimbrough challenge.”); United States v. Stone, 575 F.3d 83, 89-90 (1st Cir. 2009) (“[O]ur
precedent has interpreted Kimbrough as supplying this power even where a guideline provision is a direct
reflection of a congressional directive,” including the career offender, fast-track, and child pornography
guidelines); id. at 93-94, 97 (district court may choose to agree with Congress’s policy decisions as long as it
recognizes its authority not to, but the “guidelines at issue are in our judgment harsher than necessary” and “we
would have used our Kimbrough power to impose a somewhat lower sentence”); United States v. Halliday, 672
F.3d 462, 474 (7th Cir. 2012) (district courts are “at liberty to reject any Guideline on policy grounds,” but
defendant did “not argue that the district court was unaware of its discretion to disagree with the [child
pornography] Guidelines”); United States v. Regan, 627 F.3d 1348, 1353-54 (10th Cir. 2010) (defendant’s argument
for a policy-based variance from § 2G2.2 was “quite forceful” but he “did not raise the argument that the
Guidelines are entitled to less deference because they are not the result of empirical study by the Commission”).
10

 Case 1:15-cr-00165-TWP-DKL Document 42 Filed 12/04/15 Page 5 of 19 PageID #: 214

In fiscal year 2011 in production of child pornography cases the average guideline
minimum was 291 months, despite the fact that the average sentence imposed was 274 months.12
The fact that courts are increasingly sentencing below the minimum applicable guideline range
was stated very well by the sentencing commission, “Thus, the growing gap in the difference
between the average guideline minimums and average sentences imposed in fiscal years 2010
and 2011 is explained by the increased rate of below range sentences rather than by an increased
extent of departures and variances.13
The Sentencing Commission is an agency like any other agency. The Commission’s
guidelines lack the force of law, as the Supreme Court held in Booker that courts are no longer
bound to rigidly follow the Guidelines. But, in light of the Commission’s relative expertise,
courts must take the Guidelines into account when sentencing. This deference to the Guidelines
is not absolute or even controlling; rather, like judicial review of any agency determination,
“[t]he weight of such a judgment in a particular case will depend upon the thoroughness evident
in [the agency’s] consideration, the validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors to which give it power to persuade, if lacking power to
control.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); see Kimbrough v. United States,
552 U.S. 85 at 109, 128 S.Ct. 558 (citing the crack cocaine Guidelines as an example of
Guidelines that “do not exemplify the Commission’s exercise of its characteristic institutional
role”). On a case-by-case basis, courts are to consider the “specialized experience and broader
investigations and information available to the agency” as it compares to their own technical or
other expertise at sentencing and, on that basis, determine the weight owed to the Commission’s

12

United States Sentencing Commission, Federal Child Pornography, Full Report to Congress, December 2012, at
257, available at http://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/sexoffense-topics/201212-federal-child-pornography-offenses/Full_Report_to_Congress.pdf
13
Id.

 Case 1:15-cr-00165-TWP-DKL Document 42 Filed 12/04/15 Page 6 of 19 PageID #: 215

Guidelines. United States v. Mead Corp., 533 U.S. 218, 234, (2001)(citing Skidmore, 323 U.S.
at 139, 65 S. Ct. 161).
In keeping with the principles in Kimbrough, the Supreme Court held that it was not an
abuse of discretion for a district court to conclude that the Guideline’s treatment of crack cocaine
convictions typically yields a sentence greater than necessary to achieve the goals of §3553(a),
because those Guidelines “do not exemplify the Commission’s exercise of its characteristic
institutional role.” Kimbrough, 552 U.S. at 109-110, 128 S. Ct. 558. Much like Kimbrough, the
guidelines and enhancements found in §2G2.1 and 2G2.2 do not reflect the empirical data and
findings of the Sentencing Commission, but instead reflect the history of congressional
mandates. It has been clearly established by the Sentencing Commission’s report to Congress
that on average district courts across the United States are sentencing below the minimum
recommended guidelines in child pornography production cases. Therefore, the guidelines
should be given minimal consideration in determining the appropriate sentence in this case.
IV.

Application of the § 3553 Sentencing Factors
A. Nature and Circumstances of the Offense
Mr. Taylor recognizes the seriousness of the offenses to which he is pleading guilty to. In

referencing the nature and circumstances of the offense, Mr. Taylor in no way is minimizing the
impact his conduct has had on the victims of this case. Nor is Mr. Taylor disputing the fact that
he placed the cameras, setup the recording that captured the images in question, or that he
distributed commercial child pornography to Mr. Fogle. However, it is important for the Court
to understand what his conduct comprised.
Mr. Taylor originally placed hidden cameras in his home in an effort to avoid his
property being stolen during the numerous periods of travel with Mr. Fogle. In reviewing the

 Case 1:15-cr-00165-TWP-DKL Document 42 Filed 12/04/15 Page 7 of 19 PageID #: 216

videos, he noted a video that captured sexual activity and told Mr. Fogle of this video. This led
to the cameras being placed by Mr. Taylor in the home in places that would capture minors
without clothing. Mr. Taylor’s production of child pornography, with the exception of one
text/video, is limited to capturing minors that were visiting his home on video in various states of
undress. These videos were recorded on cameras that appeared to be radio alarm clocks and
were placed in a bedroom and bathroom where minors would be when either changing clothes or
undressing to shower or bathe. The cameras automatically recorded any time movement was
detected and the video was then saved on a computer. The videos did capture what would meet
the definition of sexually explicit conduct in that they displayed lascivious exhibition of the
genitals or pubic area of any person.
Mr. Taylor did not engage in any sexual activity or video any sexual activity with himself
and any of the victims depicted in the production charges. Further, Mr. Taylor did not have any
contact or in any way direct the victims’ actions. Mr. Taylor placed cameras in places where he
was likely to capture the victims without clothing but he was not contacting or directing the
victims in the production of the videos in any way.
Mr. Taylor did not distribute or show the videos he created to individuals other than Mr.
Fogle. It is important to note that punishment for production of child pornography is higher in
part due to the videos becoming what is commonly known as “commercial child pornography.”
By design, Mr. Taylor and Mr. Fogle maintained these videos, with the exception of one text
message, on a single laptop computer that was accessed by Mr. Fogle and then returned to Mr.
Taylor. Additionally, there is no evidence to show that Mr. Taylor ever engaged in any of this
type of inappropriate conduct prior to establishing a relationship with Mr. Fogle.

 Case 1:15-cr-00165-TWP-DKL Document 42 Filed 12/04/15 Page 8 of 19 PageID #: 217

As for the commercial child pornography count, this was placed on a single jump drive
file and distributed to Mr. Fogle at Mr. Fogle’s request. Mr. Taylor also maintained a copy of
this file on one of his computers located in his home and never distributed it to anyone other than
Mr. Fogle.
As will be shown in further discussion, Mr. Taylor and Mr. Fogle maintained a
psychologically abusive relationship. Despite contentions made by Mr. Fogle, Mr. Fogle
regularly requested additional videos of the minor children be made and even offered to provide
Mr. Taylor with more sophisticated equipment to do so. Mr. Fogle maintained control over Mr.
Taylor’s job, owned the home Mr. Taylor was living in, and provided a lavish number of
experiences to Mr. Taylor. Mr. Fogle had the perfect person to carry out his sexually deviant
pursuits, all the while attempting to insulate himself from the risks of the conduct.
B. History and Characteristics of Defendant
Prior to the charges brought in this case, Mr. Taylor was by all accounts a good father
and husband. Mr. Taylor has a history of working in leadership positions for non-profit
organizations. Mr. Taylor is also a military veteran.
Mr. Taylor underwent a psychological/psychosexual risk assessment performed by Dr.
Robin Kohli at the Grayson County Detention Center on November 9, 201514. Dr. Kohli is a
graduate of Ohio University and has her masters and doctorate degrees in Psychology from
Pepperdine University. Dr. Kohli is a full member of the American Psychological Association
and maintains a private practice in Indianapolis. A copy of Dr. Kohli’s report is filed
contemporaneously with this memorandum and will be referenced herein as the “Kohli
report.”(Exhibit B attached).

14

See Exhibit A a copy of Dr. Kohli’s Curriculm Vitae attached as reference for sentencing.

 Case 1:15-cr-00165-TWP-DKL Document 42 Filed 12/04/15 Page 9 of 19 PageID #: 218

Mr. Taylor had a very strained and abusive childhood. Mr. Taylor was born on July 5,
1971, and is currently 44 years of age. Mr. Taylor has reported throughout the investigation of
this matter that he was sexually assaulted by a neighbor and the neighbor’s son on a regular basis
between the ages of 5 and 8 years old. (See Kohli report pg. 4). The abuse by the neighbors
included both oral and anal sexual assault. (See Kohli report pg. 4). The perpetrators of Mr.
Taylor’s abuse threatened to physically harm Mr. Taylor and his family if he revealed the sexual
assaults to anyone. (See Kohli report pg. 4). These threats of violence were accompanied on at
least one occasion with actual violence when the neighbor shot Mr. Taylor in the back with a
pellet gun. (See Kohli report pg. 4). Additionally, Mr. Taylor indicates he went along with the
abuse as the neighbor child was his only friend. (See Kohli report pg. 5).
Mr. Taylor’s parents were divorced at the time he was 8 years old and he spent time after
that first living with his mother for the next 5 or 6 years until she remarried a preacher in 1984.
(See Kohli report pg. 3). Mr. Taylor’s relationship with his mother at this time was abusive, as
she would discipline him by hitting him with objects including switches, shoes, or paneling,
whatever was around. (See Kohli report pg. 4). Mr. Taylor did maintain a positive relationship
with his step-father. During the time with his mother and step-father he was moved around
frequently due to his step-father’s work as a preacher. (See Kohli report pg. 3). Mr. Taylor
attended 10 different schools in a 12 year period. (See Kohli report pg. 3). At the age of 15, Mr.
Taylor moved back in with his father. Once living at his father’s home and prior to the age of
18, Mr. Taylor reports having had sexual contact with 5 or 6 older women. (See Kohli report pg.
5).
As a young adult Mr. Taylor was with the Air Force for 6 months and the Reserves for
another year before being honorably discharged. (See Kohli report pg. 5 and Presentence Report

 Case 1:15-cr-00165-TWP-DKL Document 42 Filed 12/04/15 Page 10 of 19 PageID #: 219

generally). Mr. Taylor held jobs with non-profit organizations until meeting and going to work
for Mr. Fogle and his non-profit foundation.
Mr. Taylor and Mr. Fogle were in the position of employee and employer, and in that
context, their relationship can only be described as complicated and inappropriate. Mr. Taylor
was aware of Mr. Fogle’s interest in young girls early on in their relationship. (See Kohli report
pg. 9). Mr. Fogle quickly treated Mr. Taylor to the benefits of Mr. Fogle’s celebrity status,
including Colts games, trips to Los Angeles for filming of commercials, and introducing Mr.
Taylor to women. (See Kohli report pg. 8-9).

Mr. Taylor eventually went to go work for Mr.

Fogle and the Jared Foundation. (See Kohli report pg. 9).
Over the course of their relationship, Mr. Taylor and Mr. Fogle grew very close, often
being referred to by others as an old married couple. Mr. Taylor shared with Mr. Fogle that he
had installed a camera for security purposes in his home office and that unbeknownst to him it
captured a sexual encounter involving an intern and her boyfriend. (See Kohli report pg. 9). The
two then began to engage in conversation about catching minors on camera in the bedrooms and
bathroom so as to see them in states of nudity. (See Kohli report pg. 10). Mr. Fogle had a
specific interest in a couple of the minor victims and would request additional video in relation to
those specific victims. (See Kohli report pg. 10). These events led to Mr. Taylor capturing more
videos with the hidden cameras. These motion activated cameras would be set up by Mr. Taylor
in the bathroom or bedroom of his home, then whatever was happening would be recorded to a
hard drive on a computer. Mr. Taylor would view the video and then present the videos of
interest to Mr. Fogle by delivering the laptop for him to watch, thus insulating Mr. Fogle from
directly maintaining the videos. (See Kohli report pg. 10). Mr. Taylor captured other minor
victims that were not shared with Mr. Fogle through this process and has taken responsibility for

 Case 1:15-cr-00165-TWP-DKL Document 42 Filed 12/04/15 Page 11 of 19 PageID #: 220

every victim that was captured on video, even those that were not shared or distributed to
anyone, including Mr. Fogle. Mr. Taylor and Mr. Fogle would engage in extensive,
inappropriate text messaging regarding sexual fantasies involving some of the victims. (See
Kohli report pg. 10).
Throughout this entire time, Mr. Fogle maintained a controlling influence over Mr.
Taylor, remind him frequently that he controlled his employment and his home. Mr. Fogle
would refer to himself as Mr. Taylor’s “daddy” and there would be discussions of how much Mr.
Taylor loved “daddy” and reminding him that “daddy” was paying for his things. (See Kohli
report pg. 10). Mr. Fogle would even go as far as making Mr. Taylor eat things that were
inconsistent with his gluten intolerance. (See Kohli report pg. 10).
Mr. Taylor acknowledges that the facts as he has presented them are different than what
was presented to the Court by Mr. Fogle and his Counsel. However, there are acts that are
consistent with the facts as presented by Mr. Taylor. For example, shortly after the arrest of Mr.
Taylor, Mr. Fogle made contact with Mr. Taylor’s wife to assure her that she didn’t need to
worry about the house because he knew that Mr. Taylor was in custody and she did not need to
worry about that. However, after Mr. Fogle’s house was raided on July 7, 2015, in what can
only be described as retribution, Mr. Fogle filed a lien via land contract on Mr. Taylor’s home on
or about July 9, 201515, and subsequently filed suit to foreclose on that lien on August 26,
201516. It should be noted that Mr. Fogle was maintaining innocence through a spokesperson at
the time of the lien filing.
Additionally, Mr. Taylor was in counseling well before any investigation into the
criminal conduct involved in this case. Mr. Taylor entered counseling in November, 2012, and

15
16

See exhibit C land contract filed with Marion County Recorder July 9, 2015
See exhibit D Chronological Case Summary of foreclosure action

 Case 1:15-cr-00165-TWP-DKL Document 42 Filed 12/04/15 Page 12 of 19 PageID #: 221

completed it in March, 2014. Shane Seabourn, Licensed Clinical Social Worker, reports that he
counseled Mr. Taylor from November 6, 2012 to March 11, 2014. According to Mr. Seabourn
Mr. Taylor’s counseling included addressing “significant problems with being assertive in a
healthy manner with his boss.” (See Seabourn exhibit E ). At that time Mr. Taylor was
diagnosed as suffering from major depressive disorder with melancholic features and generalized
anxiety disorder. (See Seabourn Exhibit E).
As referenced above and from his counseling with Mr. Seabourn, Mr. Taylor suffers from
a history of mental illness that likely dates back to the trauma he suffered as a child. Mr. Taylor
continues to suffer from substantial mental illness, which most recently manifested itself in his
near fatal suicide attempt shortly after his arrest for the charges he faces in this case. During Dr.
Kohli’s psychological assessment of Mr. Taylor, she confirmed the presence of dependent and
passive personality structures, as well as significant emotional distress related to anxiety and
depression. (See Kohli report pg. 15). Further, Dr. Kohli noted that at the time of the evaluation,
Mr. Taylor continued to use significant cognitive distortions related to his relationship with Mr.
Fogle, which suggests that he continues to rationalize that Mr. Fogle had his best interests in
mind and was “taking care” of him. (See Kohli report pg. 10). Further, Dr. Kohli states that Mr.
Taylor’s desperation for friendship has demonstrated a recurrent pattern over the years, whereby
he has allowed himself to be exploited in return for friendship and dependency. (See Kohli
report pg. 10). Dr. Kohli reached the conclusion that, “Mr. Taylor’s continued rationalization
and confusion regarding his history of abuse and willingness to allow himself to be exploited by
others will likely require years of therapy, which he appears to desire.” (See Kohli report pg. 15).
As part of her evaluation of Mr. Taylor, Dr. Kohli administered the Sex Offender Risk
Appraisal Guide (SORAG). Mr. Taylor scored in the low risk range with a finding of 15%

 Case 1:15-cr-00165-TWP-DKL Document 42 Filed 12/04/15 Page 13 of 19 PageID #: 222

chance of sexual recidivism in 7 years and a 12% chance of sexual recidivism in 10 years. (See
Kohli report pg. 14). Additionally, Dr. Kohli administered the widely recognized Static-2002
test to Mr. Taylor. In the Static-2002 test, Mr. Taylor received a score of 4 which placed him in
the low-moderate risk level. (See Kohli report pg. 14). The score of 4 on this test equates to a
probability of sexual re-offense at 4.6% within the next 5 years and 5.1% in the next 10 years.
(See Kohli report pg. 15).
Dr. Kohli noted three areas for the Court’s consideration. First, Mr. Taylor has a
significant history of trauma. More specifically, Dr. Kohli found that, rather than seek solutions
for his problems or give up his by-proxy celebrity status he enjoyed through his employment
with Mr. Fogle, “Mr. Taylor chose to stay in his situation due to his unhealthy dependency on
Mr. Fogle, his fear that all he had [house, lifestyle, etc.] would be stripped away from him, and
also because his history of trauma led to Mr. Taylor’s underlying belief that Mr. Fogle was
controlling his decisions.” (See Kohli report pg. 15).
The second point of emphasis noted by Dr. Kohli was her finding of Mr. Taylor’s lack of
criminal history and low-moderate risk of reoffending. (See Kohli report pg. 15). Dr. Kohli cited
the lack of criminal history and the findings of low risk and low-moderate risk for reoffending as
a mitigating consideration. (See Kohli report pg. 15). Further, her evaluation found that there
was a lack of evidence to suggest Mr. Taylor engaged in the video recordings based on his own
sexual interest. (See Kohli report pg. 15).
The last point of emphasis made by Dr. Kohli is that the studies regarding sex abuse
offenders of this nature can be divided into motivations associated with subtypes of pedophilia or
the commercial exploitation for financial gain. (See Kohli report pg. 15). It is noted that Mr.

 Case 1:15-cr-00165-TWP-DKL Document 42 Filed 12/04/15 Page 14 of 19 PageID #: 223

Taylor’s motivations for generating the child pornography in this case fall outside of the standard
subtypes and may put him at even a lower risk of re-offending. (See Kohli report pg. 15).
Dr. Kohli made several diagnoses of mental illness as it relates to Mr. Taylor. Mr. Taylor
has been diagnosed with Child Sexual abuse, Confirmed (non-contact exploitation); Adjustment
Disorder with Mixed Anxiety and Depressed Mood; Posttraumatic Stress Disorder; Personal
History of Sexual Abuse in Childhood, and Adult Psychological Abuse by Non-spouse/nonpartner, Confirmed; Narcissistic Personality Traits; and R/0 Somatic Symptom Disorder.
The nature and circumstances of the offense as well as the history and characteristics of
Mr. Taylor heavily weigh toward the Court deviating below the minimum guideline of 360
months. The production offenses involved in this case used a hidden camera activated by
motion. The camera required no direct involvement by Mr. Taylor in the actual filming of the
minors and the minors were unaware it was even occurring. Mr. Taylor did not have contact
with the victims or direct them in the production of the videos in anyway. Additionally, Mr.
Taylor’s extensive mental health issues made him especially susceptible to the suggestions and
requests of Mr. Fogle. Taking into account the foregoing factors, a sentence between 180 and
274 months is appropriate.
C. Sentence Imposed Reflect the Seriousness of the Offense, Promote Respect
for the Law, and Provide Just Punishment
Mr. Taylor understands the production and distribution of child pornography is a very
serious offense. He further understands that he is facing a significant sentence regardless of what
determination the Court makes. The plea agreement anticipates a range of 180 to 420 months.
Any sentence the Court could fashion within that range will reflect that these charges are serious,
promote respect for the law, and provide just punishment. Given the circumstances of this case

 Case 1:15-cr-00165-TWP-DKL Document 42 Filed 12/04/15 Page 15 of 19 PageID #: 224

and the other sentencing factors for the Court to consider, a sentence that is between 180 and 274
months will achieve all of the prongs associated with this part of §3553. If the Court were to
sentence Mr. Taylor to the statutory minimum, he would be approximately 57 years old at the
time of his release.

D. Afford Adequate Deterrence to Criminal Conduct
There is no denying the attention this matter has garnered in the media. The coverage
of this case has been extensive by both local and national media due to the celebrity status of codefendant Mr. Fogle. Anyone that has paid attention to this case has seen the labels,
descriptions, and adjectives used to describe both Mr. Fogle and Mr. Taylor.
Taking into account the public ridicule in this case, it is hard to imagine that such ridicule
along with a sentence that is at least 180 months would not be adequate to serve as a deterrent to
future criminal conduct. Regardless of the sentence, Mr. Taylor is going to spend a significant
part of his life because he is behind bars. Mr. Taylor will miss most if not all major events in his
twin sons’ lives, he will likely be imprisoned longer than his parents will live, and he will lose
significant portion of his income producing years. If the minimum sentence in this case and the
collateral consequences suffered are not a deterrent to a member of the general public, then there
is probably not a sentence high enough to deter that particular person.

E. To Protect the Public from Further Crimes of the Defendant
As noted by Dr. Kohli, Mr. Taylor is in need of years of significant treatment for him to
correct and deal with the issues that got him to the point he finds himself today. Dr. Kohli and
the Presentence Report both found Mr. Taylor very interested in and open to receiving treatment.

 Case 1:15-cr-00165-TWP-DKL Document 42 Filed 12/04/15 Page 16 of 19 PageID #: 225

The most important factor for consideration of this prong is that Mr. Taylor is very low risk to
re-offend. At the 10 year point the risk of recidivism was very low, ranging between 5.1% and
12%. A sentence fashioned between 180 and 274 months is more than enough to achieve the
goals of this prong.

F. Provide Defendant with Needed Education/Vocational Training, Medical
Care and Correctional Treatment
Mr. Taylor is aware that he has substantial work to do to address his mental health needs.
Additionally, Mr. Taylor has not completed his college education and has indicated in the
Presentence Report a desire to do so. The Statutory minimum would provide more than ample
time for Mr. Taylor to acquire the treatment and education he needs and desires. Mr. Taylor
does request placement in the FCI Marianna facility in Marianna, Florida due to its offering sex
offender treatment programs and its close proximity to his father who resides in Florida.
G. Avoiding Unwarranted Disparities among Defendants with Similar Records
who Have Been Found Guilty of Similar Conduct
This factor weighs heavily in Mr. Taylor’s favor for being sentenced below the
guidelines. In fiscal year 2011 (the most recent data available), of the Defendants sentenced for
production of child pornography, the average sentence imposed was 274 months.17 Further,
compared to other Defendants given an average sentence of 274 months, Mr. Taylor falls into a
small category of less dangerous offenders. The commission found in 2010 that the average
sentence handed down nationally to defendants convicted of child production charges was 267.1

17

United States Sentencing Commission, Federal Child Pornography, Full Report to Congress, December 2012, at
256, available at http://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/sexoffense-topics/201212-federal-child-pornography-offenses/Full_Report_to_Congress.pdf

 Case 1:15-cr-00165-TWP-DKL Document 42 Filed 12/04/15 Page 17 of 19 PageID #: 226

months.18 Of those offenders sentenced in 2010, 74% had present or remote offense level sexual
contact with the victims, 15.5% were present for the production of the pornography but did not
have sexual contact offenses or assist others with sexual contact offenses, and a mere 10.5%
were not physically present and did not have sexual contact with the victims.19 It is important to
note the average sentence in the United States for production offenses in 2010 was 267.1 months.
Of those sentenced in 2010, 74% of the offenders had sexual contact with the victims as part of
their production of the child pornography. This data suggests heavily that a sentence of 420
months as promulgated by the United States would result in a gross and unwarranted disparity
when compared to Defendants found guilty of the same type of charges.
To the contrary, Mr. Taylor’s creation of the videos of child pornography in this case
were non-contact, and none of the videos involved sexual contact of any nature with the victims.
If 74% of the defendants had sexual contact with the victims as part of their production of child
pornography and received an average sentence of 267.1 months, clearly and offender who falls
into the minority of defendants who had no sexual contact does not deserve a sentence harsher
than that average. Surely any aggravator that there were multiple victims that did not know they
were being filmed is outweighed by offenders who filmed the sexual assault of their victim as
part of the pornography and whose victims were being sexually assaulted during the filming.
Since the average sentence for production offenders was 274 months in 2011, and because Mr.
Taylor is in the small minority that did not engage in sexual contact with any of the victims as
part of the production of child pornography, a range of 180 to 274 months for Mr. Taylor’s
sentence would be appropriate and avoid a disparate result that the United States is seeking 420
months.

18
19

Id.
Id at 263.

 Case 1:15-cr-00165-TWP-DKL Document 42 Filed 12/04/15 Page 18 of 19 PageID #: 227

It is also warranted to consider the sentence Mr. Fogle received in this case. Mr. Fogle
was intimately tied to the creation of the child pornography. Despite his declarations to the
contrary, it is inconceivable to think that a man who admittedly and regularly sought out sex with
minors under the age of 16 did not request the commercial pornography or the home produced
videos form Mr. Taylor, as Mr. Fogle claimed. To the contrary, Mr. Fogle requested more
videos of specific minors and pressured Mr. Taylor to do so, even after Mr. Taylor stopped the
videotaping altogether in early 2015. Mr. Fogle even offered to buy more sophisticated and
better quality camera equipment. Mr. Fogle was smart in that he made sure all of these items
were produced and maintained by Mr. Taylor, making it difficult if not impossible for the United
States to prove a production charge against Mr. Fogle. Despite the differences in the charges that
the co-defendants pled to, Mr. Fogle’s intimate involvement in this case should give some point
of reference for an appropriate sentence that is not too disparate from Mr. Fogle’s sentence. A
sentence of 420 months for Mr. Taylor would be almost 2.5 times more than the sentence
received by Mr. Fogle. Mr. Taylor recognizes it is he who produced the videos and understands
that is clearly a crime punishable by a harsher sentence. However, given Mr. Fogle’s direct
involvement in this crime, a punishment that is 2.5 times harsher is not warranted and would
create an unreasonable disparity. A sentence in the range of 180 to 274 months is appropriate
under all circumstances and would avoid a gross disparity between Mr. Taylor and others
sentenced for the same type of offenses.
V.

Conclusion
Per the level 42 guideline, the minimum recommended sentence for Mr. Taylor is 360

months. Given the nature and the circumstances, Mr. Taylor’s history and characteristics, the
clearly disproportionate sentence that would result by a sentence to the guideline minimum of

 Case 1:15-cr-00165-TWP-DKL Document 42 Filed 12/04/15 Page 19 of 19 PageID #: 228

360 months, Mr. Taylor respectfully submits that a downward deviation is warranted in this case.
Mr. Taylor, as a non-contact offender, should not receive a greater sentence than the national
average where 74% of the defendants perpetrated sexual offenses on their victims as part of the
child pornography production. An appropriate sentence in this matter would be between 180 and
274 months.

Respectfully submitted,

/s/ Bradley L. Banks
Bradley L. Banks
Banks & Brower, LLC
9102 N. Meridian St, Ste. 500
Indianapolis, IN 46260
(317)870-0019

CERTIFICATE OF SERVICE
The undersigned certifies that all counsel of record who are deemed to have
consented to electronic service are being served with a copy of this document via the
Court’s CM/ECF system this ____ day of December, 2015.

By: /s/ Bradley L. Banks
Bradley L. Banks