Fogle attorney: Fantasizing about sex with minors is not a crime

CHICAGO — Although Jared Fogle received dozens of pornographic images and videos of children from his former employee, he neither helped produce nor actively sought them.

Although he frequently talked and fantasized about having sex with kids younger than 16, he did not actually do so.

And although he committed depraved acts, he took responsibility, showed remorse and sought treatment.

Those are some of the reasons his defense attorney used to try to persuade federal appeals court judges to shorten the former Subway pitchman's nearly 16-year prison sentence.

Fogle argues that U.S. District Judge Tanya Walton Pratt abused her discretion when she sentenced him to 15 years, eight months in federal prison. The sentence, which exceeded the 12½ years that federal prosecutors recommended as part of a plea agreement, was flawed and unreasonable, Fogle's attorney, Ron Elberger, argued.

Elberger and Assistant U.S. Attorney Steve DeBrota presented opposing arguments Friday in the 7th U.S. Circuit Court of Appeals in Chicago. The hearing, which lasted less than 30 minutes with almost no questions from the appellate judges, came about six months after Pratt sentenced Fogle in November.

Fogle pleaded guilty to possession or distribution of child pornography and traveling across state lines to have commercial sex with a minor. His defense attorneys asked for a five-year sentence.

Fogle's punishment was "erroneously grounded" in his fantasies and acts he didn't do, neither of which should have been used to justify an enhanced sentence, Elberger argued in court records.

"The mere fact that someone's fantasizing about a crime or committing a crime, even a crime of violence, is not itself a crime," Elberger said during the hearing.

And even though Fogle talked about having sex with young minors, "that's all he did," Elberger said. "It was all talk and no substance."

Elberger also said the sentence was based on a "mistaken belief" that Fogle was involved in the actual production of child pornography. He said Fogle did not see all of the photos and videos produced by Russell Taylor, the former head of Fogle's foundation who secretly videotaped minors visiting his home.

In response, federal prosecutors argued in court briefs that Pratt "thoroughly and appropriately explored the unusual nature and circumstances of Fogle's offenses and his history and characteristics."

Although Fogle was not involved in the production of child pornography, "he knew where the production took place, knew that it was going to happen, and did nothing, instead waiting for his chance to receive the material," according to court records filed by the U.S. attorney's office. Fogle rationalized and encouraged Taylor's conduct — and, for several years, benefited from it.

Had he reported Taylor's conduct, many of those minors would not have been victimized, DeBrota said during the hearing.

Jared Fogle sentence: Too light or just right?

Another aggravating factor, DeBrota said, was that Fogle knew some of the victims and had personally socialized with them. That's worse than receiving pornography involving anonymous victims, he said.

And Fogle did not only have fantasies, but he also acted on those fantasies, DeBrota said, citing several occasions in which Fogle asked adult prostitutes to provide him access to minors.

"None of that was fantasy," DeBrota said. "That was solicitation."

Echoing Pratt, DeBrota said that unlike many convicted of similar crimes, Fogle had a great family and a childhood free of abuse and neglect.

"That makes him more blameworthy," DeBrota said, "not less."

Fogle's interest in minors dates to at least 2007, and his illegal activities accelerated after Taylor became the head of his foundation a year later. Fogle viewed images of children, ages 9 to 16, who were secretly recorded by Taylor while they were changing clothes, showering and bathing. One video showed a more sexually explicit act. Fogle also traveled to New York City hotels to have sex with a 16-year-old and a 17-year-old.

Fogle's massive weight loss propelled him to fame. As a spokesman for the Subway sandwich chain, he became a symbol of the fight against obesity, doing media interviews and making appearances at schools and public events.

Jared Fogle sentenced to nearly 16 years goes from pitchman to 'pariah'

During his sentencing hearing last fall, Fogle said he's a sex addict, that he had somehow turned his obsession with food into an obsession with sex. 

Fogle pleaded guilty and sought medical treatment after his arrest in August. His attorneys argued that Pratt seemed to punish Fogle for seeking treatment after his arrest, court records say, and erroneously rejected a probation officer's recommendation for a less harsh sentence based on the additional stress and collateral damage he will endure because of his notoriety.

But DeBrota said Fogle shouldn't receive leniency because of his celebrity status. And although he sought treatment, he only did so after he was caught.

Police arrested Taylor in April 2015. He was convicted and sentenced to 27 years in prison for producing and distributing child pornography.

The appellate judges will issue a ruling on Fogle's request at a later date.

IndyStar reporters Tim Evans and Mark Alesia contributed to this story.

Call IndyStar reporter Kristine Guerra at (317) 444-6209. Follow her on Twitter: @kristine_guerra.

Russell Taylor sentencing: 27 years for Jared Fogle accomplice