United States v. Daniel Zulawski ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0051n.06
Case No. 20-5577
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jan 27, 2022
)
UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
)
ON APPEAL FROM THE
v. )
) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
DANIEL J. ZULAWSKI, ) DISTRICT OF KENTUCKY
Defendant-Appellant. )
) OPINION
Before: GUY, COLE, and STRANCH, Circuit Judges.
COLE, Circuit Judge. Defendant Daniel Zulawski was convicted for attempted enticement
of a minor under 18 U.S.C. § 2422(b) after he arranged to have sex with an undercover agent
posing as a “taboo mom” and her two fictitious minor children during a sting operation conducted
in January 2018. He raises five issues on appeal, including whether the district court improperly
denied his request for a Franks hearing and his motion to suppress, erroneously admitted
inappropriate character evidence, and incorrectly applied an obstruction of justice enhancement to
his sentence. Finding no error, we affirm.
I. BACKGROUND
A. Factual Background
In January 2018, Sergeant Zulawski left his post at Fort Campbell to attend a week-long
pre-deployment training in Lexington, Kentucky. Though preoccupied with training and other
Case No. 20-5577, United States v. Zulawski
activities with his fellow soldiers most of the day, Zulawski spent his evenings at a hotel using his
Google Pixel cell phone to solicit sexual encounters online.
On January 15, 2018, Detective Heather D’Hondt with the Kentucky Attorney General’s
office posted an advertisement on Craigslist under the heading “[t]aboo/incest mom in Lex for 2
days only[.]” (PSR, R. 141, PageID 1856.) D’Hondt’s advertisement described her as a 30-year-
old divorced “mom” “[l]ookin for serious inquires” to engage in “taboo/incest” with her and her
“two guests.” (Id. at PageID 1856, 1858–70.) Zulawski responded to the advertisement, claiming
that he “[a]bsolutely love[d] incest” and “always had an interest in seeing it or experiencing it for
real.” (Id. at PageID 1857.) D’Hondt replied to his message the next day. She clarified that her
“two guests” were her 11-year-old daughter and 13-year-old son. She then initiated a conversation
with Zulawski on the instant messenger application, Kik.
D’Hondt and Zulawski discussed meeting for sex. When D’Hondt reiterated that she
intended to bring her children with her, he said “[t]hat sounds like it would be hot =)” and asked
if she felt “comfortable sending pics.” (Id. at PageID 1859.) D’Hondt replied “I can send selfies,
[but] I don’t do nudes till I meet.” (Id.) She sent pictures of herself and the children—who,
unbeknownst to Zulawski, were also law enforcement officials—and Zulawski complimented the
family, calling her “absolutely gorgeous” and the children “[a]dorable.” (Id. at PageID 1859–60.)
The two discussed their “hard limits” for sexual activity, and Zulawski eventually asked
“what/how/where would you like to do this.” (Id. at PageID 1860.)
Though Zulawski offered to host the family in his hotel room, D’Hondt requested they
meet at a neutral location instead. She asked Zulawski to clarify whether he was “wanting all of
us” or “just certain ones,” to which Zulawski replied that he “[f]igure[d] you and me could watch
them go at it while we play and then me and ur son use you both[.]” (Id. at PageID 1861.)
-2-
Case No. 20-5577, United States v. Zulawski
Zulawski wrote that he was “pretty excited for this” and asked whether the “[k]ids [were]
as excited as we are.” (Id. at PageID 1863.) D’Hondt confirmed that they were, especially her
son. Zulawski asked how the children came to be involved in taboo sexual activity. She told him
“[s]ince 4 and 6.” (Id. at PageID 1864.) He responded “Awesome =)[.]” (Id.) She then asked
Zulawski: “So you’re serious. Not wasting my time?” (Id.) Zulawski replied he was “[d]ead
serious” and he had “never found a taboo family before,” confessing he had “always wanted to
find one to watch and play with.” (Id. at PageID 1865.) He described their planned encounter as
“a dream come true =)[.]” (Id.) They agreed to meet on January 17, 2018.
The day of their intended rendezvous, Zulawski and D’Hondt discussed how excited they
were for that evening. Zulawski confirmed that they were “definitely” still on and he “[couldn’t]
wait” to meet. (Id. at PageID 1867–68.) The two also discussed logistics, including the 11-year-
old’s latex allergy and the location of their meeting. Before Zulawski began the roughly 30-minute
drive to Frankfort, Kentucky, D’Hondt warned him to “[b]e careful” driving due to the wintery
weather. (Id. at PageID 1869.) Zulawski arrived at the arranged hotel just before 7 p.m.
Zulawski was arrested just outside of the hotel room where he was supposed to meet
D’Hondt and her children. Officers seized the phone Zulawski used “to do all [his] talking, texting,
and emailing”—the Google Pixel—and retained it for examination. (Id. at PageID 1873–74.)
When asked why he had come to Frankfort, Zulawski initially said that he was responding
to an advertisement for “a mother who had . . . sexual relations with her child, with her children”
and it “interest[ed] [him] a little bit.” (Id. at PageID 1873.) But then, his story changed. He
claimed that he had previously helped children “that ha[d] been subjected to” “stuff like this” when
he worked as an EMT. (Id. at PageID 1873–74.) According to Zulawski, he hoped to “talk some
sense into the mother” after “build[ing] some rapport.” (Id. at PageID 1874–75.) Zulawski then
-3-
Case No. 20-5577, United States v. Zulawski
told the officers he had a wife, a 9-year-old stepdaughter, and a 2-year-old daughter. The next
day, D’Hondt asked Christian County’s Department of Community Based Services to check in on
Zulawski’s children. Because Zulawski was currently on active duty, D’Hondt also notified the
Army of Zulawski’s arrest.
After D’Hondt called, the Army’s Criminal Investigative Division went to Zulawski’s
residence at Fort Campbell to investigate. Zulawski’s wife then gave investigators permission to
search their home. During the consent search, investigators noticed a cell phone in a locked cage
in the garage. Zulawski’s wife claimed it was her husband’s phone and he had it on him before
leaving for Lexington. They then sought, obtained, and executed a warrant from a military
magistrate to search and seize the “cage phone.”
Once law enforcement officials decided to prosecute Zulawski in civilian courts, Army
investigators surrendered the cage phone to individuals in the Kentucky Attorney General’s office.
As an additional precaution, the Attorney General’s office also sought a warrant from a state
magistrate in Franklin County to search the phone’s contents and the contents of 12 other electronic
devices found in Zulawski’s home. To support probable cause, D’Hondt swore an affidavit
detailing: (1) the events leading up to Zulawski’s arrest; (2) the Army’s seizure of the cage phone;
and (3) her communications with the Christian County Department of Community Based Services,
which had advised her that Zulawski’s 9-year-old stepdaughter had recently told authorities he had
sexually abused her. Specifically, Zulawski’s stepdaughter told officials that Zulawski made her
lie on a bed naked and then used his cell phone to photograph himself touching her “no no square.”
(Mot. to Suppress (Attorney General Warrant), R. 31-5, PageID 555.) She also accused Zulawski
of taking a photograph of her while she was unclothed after a shower.
-4-
Case No. 20-5577, United States v. Zulawski
The Franklin County magistrate authorized the search of the electronics and their contents.
The Attorney General’s office conducted a forensic search of the cage phone, obtaining a series of
sexually explicit chats between an anonymous user and several other individuals claiming to be
minors.
Zulawski was indicted on state charges in Franklin County Circuit Court five days after his
arrest. Officials dismissed those charges in May 2018, after the United States Attorney’s Office
for the Eastern District of Kentucky charged him under 18 U.S.C. § 2422(b) for attempting to
entice a minor to engage in unlawful sexual activity. Zulawski pleaded not guilty.
B. Procedural History
Before trial, Zulawski moved to suppress the evidence obtained from the cage phone by
attacking the probable cause foundation of both warrants. As to the Army warrant, Zulawski
principally argued that the warrant contained an intentionally false statement: namely, that he told
his mother that “any evidence against him would be found on his old cellular devices.” (Mot. to
Suppress, R. 31, PageID 259–60 (quoting Mot. to Suppress (Army Warrant), R. 31-5, PageID
545).) He claimed that inaccuracy merited a Franks hearing and the warrant was void for lack of
probable cause. He then argued that the deficiencies in the Army warrant doomed the Attorney
General warrant because the latter relied on the former. He also contended that the Attorney
General warrant lacked a sufficient nexus between the alleged criminal conduct and the cage
phone, so it plainly lacked probable cause.
After the parties presented witnesses and arguments at a hearing, the magistrate judge
recommended that the district court deny Zulawski’s motion to suppress. See United States v.
Zulawski, No. 3:18-CR-005-GFVT-MAS, 2019 WL 7594181, at *8 (E.D. Ky. Aug. 26, 2019).
The magistrate judge also recommended denying Zulawski a Franks hearing because he failed to
-5-
Case No. 20-5577, United States v. Zulawski
demonstrate that the statement paraphrasing his jail phone call to his mother was intentionally or
even recklessly misleading. Id. at *4–5. Instead, the magistrate judge reasoned that “[t]he various
law enforcement officers in this case ended up in a proverbial game of ‘telephone’ wherein the
exact wording of Zulawski’s statements to his mother was lost.” Id. at *4. The magistrate judge
then concluded that the Attorney General warrant was supported by probable cause because the
stepdaughter’s allegations—coupled with the underlying crime—supported searching the cage
phone for evidence. Id. at *5–6. The district court largely adopted the magistrate judge’s
recommendations over Zulawski’s objections, denying his motions to suppress and his request for
a Franks hearing. See United States v. Zulawski, No. 3:18-CR-005-GFVT-MAS, 2019 WL
5388524, at *4–5 (E.D. Ky. Oct. 22, 2019).
After the district court denied his suppression motion, Zulawski filed numerous objections
to the government’s evidence in the run-up to trial, including a motion in limine to exclude the
sexually explicit text messages from the cage phone. Zulawski argued these conversations were
inadmissible because they were hearsay, improper res gestae evidence, and impermissible
character evidence. The government opposed, and the district court granted the motion in part,
limiting the introduction of the cage phone text messages to “just that section that addresses the
age” of the purportedly underage users. (Trial Tr. Day 1, R. 159, PageID 2795–97.) The court
also allowed the government to put the sexual nature of the conversations “into context.” (Id.)
Before trial, the government also advised Zulawski that it intended to admit eight text chats
from Zulawski’s Pixel phone into evidence. For the most part, these conversations occurred during
Zulawski’s time in Lexington and showed his attempts to schedule sexual encounters with
strangers while there. Zulawski raised no objection to the introduction of these messages before
or during trial.
-6-
Case No. 20-5577, United States v. Zulawski
At trial, Zulawski testified in his own defense and claimed he was not a party to the cage
phone conversations. But after a three-day trial and four hours of deliberation, the jury returned a
guilty verdict. Less than two weeks later, Zulawski moved for judgment of acquittal pursuant to
Federal Rule of Criminal Procedure 29. After “[w]eighing the evidence in favor of the
prosecution,” the district court held a reasonable juror could conclude that Zulawski committed
the charged crime beyond a reasonable doubt. (Mot. for J. of Acquittal Or., R. 108, PageID 1164–
66.)
As Zulawski’s case proceeded to sentencing, the presentence investigation report (“PSR”)
ultimately recommended a two-point sentence enhancement for obstruction of justice based on
Zulawski’s testimony that he did not send the text messages on the cage phone. Zulawski objected
to the enhancement, arguing that there was insufficient evidence to support that he knew he was
testifying falsely. But the district court concluded that the government had shown by at least a
preponderance of the evidence that Zulawski was the one texting from the cage phone, and
consequently, the obstruction enhancement was justified. The court adopted the PSR without
modification.
Although the court’s sentencing calculation rendered a range of 292 to 365 months, it
reduced Zulawski’s sentence to 192 months in light of Zulawski’s age, military service, and non-
violent status. “A significant period of incarceration is required due to the harm to the
community,” the court wrote, but “[i]ncarceration is not necessary to protect the public.” (PSR,
R. 142-1, PageID 1919.) Rather, “[t]he defendant needs help[,] and resources will be provided to
him while incarcerated and while on supervised release.” (Id.) Zulawski appealed.
-7-
Case No. 20-5577, United States v. Zulawski
II. ANALYSIS
On appeal, Zulawski asks this court to vacate his conviction and remand for further
proceedings for four reasons. First, he argues the district court erred when it denied his request
for a Franks hearing and his motion to suppress the contents of the cage phone. He claims that he
made the showing required to merit a Franks hearing and he attacks both warrants’ probable cause.
Next, he asserts that the lower court erred by admitting the cell phone evidence from the cage and
Pixel phones under Rule 404(b), Rule 403, and other rules of evidence. He contends that the
cumulative effect of these errors violated his due process right to a fair trial, so he requests a new
one. He also argues that the district court erred by denying his motion for judgment of acquittal
because there was insufficient evidence of his intent. And finally, even if his conviction withstands
scrutiny, he requests we remand for resentencing because the district court improperly applied an
obstruction of justice enhancement to his sentence. We consider each in turn.
A. Motion to Suppress/Franks Hearing
We review a “district court’s denial of a Franks hearing under the same standard as for the
denial of a motion to suppress: the district court’s factual findings are reviewed for clear error and
its conclusions of law are reviewed de novo.” United States v. Bateman, 945 F.3d 997, 1007 (6th
Cir. 2019) (internal quotations and citations omitted).
The Fourth Amendment protects individuals from unreasonable searches and seizures.
U.S. Const. amend IV. Generally, searches that occur pursuant to a valid warrant are per se
reasonable. United States v. Crawford, 943 F.3d 297, 305 (6th Cir. 2019). “For a warrant to be
validly issued, however, it must have been based on ‘probable cause’ justifying the search.” Id.(citation omitted). Probable cause requires “a fair probability that contraband or evidence of a
crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).
-8-
Case No. 20-5577, United States v. Zulawski
Normally, affidavits explaining the basis for probable cause are afforded “a presumption
of validity.” Franks v. Delaware, 438 U.S. 154, 171 (1978). But if probable cause is predicated
on intentionally false information, it invalidates the warrant and a court can suppress the evidence
gleaned from its execution through a Franks hearing. Crawford, 943 F.3d at 309. “A defendant
is entitled to a Franks hearing if he: 1) makes a substantial preliminary showing that the affiant
knowingly and intentionally, or with reckless disregard for the truth, included a false statement or
material omission in the affidavit; and 2) proves that the false statement or material omission is
necessary to the probable cause finding in the affidavit.” United States v. Young, 847 F.3d 328,
348–49 (6th Cir. 2017) (internal quotations and citation omitted). “This substantial showing is
necessary because a challenge to the veracity of the search warrant affidavit must overcome the
presumption that the affidavit is valid.” United States v. Rodriguez-Suazo, 346 F.3d 637, 648 (6th
Cir. 2003).
Zulawski challenges the validity of both the Army warrant and the Attorney General
warrant. Much like he did below, he argues he made a sufficient showing that the Army warrant’s
probable cause was based entirely on an intentionally misleading paraphrase of a conversation
between him and his mother following his arrest. Consequently, he claims the district court erred
by denying his request for a Franks hearing. Along the same vein, he argues the Attorney General
warrant lacked sufficient probable cause because his 9-year-old stepdaughter’s allegations of
sexual abuse against him were too unreliable and they lacked a sufficient nexus to the charged
crime in any event. Accordingly, the evidence obtained from that search—specifically the contents
of the cage phone—should have been suppressed. We disagree with Zulawski on both fronts.
-9-
Case No. 20-5577, United States v. Zulawski
1. Franks Hearing Denial
First, the district court properly concluded Zulawski was not entitled to a Franks hearing
because he failed to make a substantial showing that the Army warrant contained statements made
with intentional or reckless disregard for the truth. The Army warrant included (1) details from
the underlying investigation, including that Zulawski was suspected of “communicat[ing] via his
mobile device that he ‘wanted sex’ with an 11 and 13 (y/o) son and daughter”; (2) information
from Zulawski’s wife, specifically her acknowledgment that the cage phone was “one of
[Zulawski’s] old cellular phones” and he had it “on him before leaving”; and (3) a statement
paraphrasing a phone call between Zulawski and his mother after his arrest that “SGT Zulawski
told his mother that any evidence against him would be found on his old cellular phones.” (Mot.
to Suppress (Army Warrant), R. 31-5, PageID 545.)
The magistrate judge concluded—and the district court agreed—that Zulawski made a
preliminary showing sufficient to satisfy Franks’ second prong because “Zulawski’s statement
about the ‘evidence’ on old cellular phones clearly supported the probable cause to issue the
[Army] Search Warrant.” Zulawski, 2019 WL 7594181, at *3; see Zulawski, 2019 WL 5388524,
at *2–3. The government does not contest that determination on appeal. Assuming without
deciding that was correct, the only question before us then is whether Zulawski made a substantial
showing that the Army warrant contained statements made with intentional or reckless disregard
for the truth. Young, 847 F.3d at 348–49. To do so, he must “point to specific false statements”
and “accompany his allegations with an offer of proof.” United States v. Cummins, 912 F.2d 98,
101 (6th Cir. 1990) (internal quotations and citation omitted). Even then, it is insufficient to show
that some of the information contained in the search warrant is false. Rodriguez-Suazo, 346 F.3d
at 648. Rather, the defendant must show by a preponderance of the evidence that the affiant
- 10 -
Case No. 20-5577, United States v. Zulawski
“intentionally or recklessly misrepresented facts in order to secure the search warrant.” Id.(emphasis added).
Zulawski failed to carry his burden here. True, the statement in the affidavit was “not a
precise recitation of his statements on the jail calls.” Zulawski, 2019 WL 7594181, at *4, adopted
in relevant part by 2019 WL 5388524, at *3. It did, however, “capture[] the essence of Zulawski’s
statement[s].” Zulawski, 2019 WL 7594181, at *4 adopted in relevant part by 2019 WL 5388524,
at *3.
As the lower court stressed, there were “several law enforcement agencies, military and
civilian,” involved in this investigation. Zulawski, 2019 WL 7594181, at *4 adopted in relevant
part by 2019 WL 5388524, at *3. At the suppression hearing, a Franklin County Regional Jail
investigator testified that he called D’Hondt after listening to conversations between Zulawski and
his mother. The investigator told D’Hondt that Zulawski had expressed concern about
investigators finding an old cellular phone, a laptop, and unregistered weapons in his home. After
the investigator called her, D’Hondt testified that she phoned her Army contacts and told them
“there would be devices at his home that had evidence possibly.” (Suppression Hr’g Tr., R. 52,
PageID 369.) Ultimately, that became “SGT Zulawski told his mother that any evidence against
him would be found on his old cellular phones.” (Mot. to Suppress (Army Warrant), R. 31-5,
PageID 545.)
Zulawski also argues that call logs show D’Hondt was listening to his phone calls
contemporaneously, so any oversimplification on her end was reckless at the very least. But even
if D’Hondt had listened to the phone calls contemporaneously, that does not show or prove that
the paraphrased statements of the jail calls were misleading or untrue. Rather, it is consistent with
the reality that warrant affidavits “‘are normally drafted by nonlawyers in the midst and haste of a
- 11 -
Case No. 20-5577, United States v. Zulawski
criminal investigation.’” United States v. Brooks, 594 F.3d 488, 490 (6th Cir. 2010) (quoting
United States v. Ventresca, 380 U.S. 102, 108 (1965)). For this reason, although an affidavit’s
“sloppiness may raise flags,” it is normally not “fatal” to the warrant itself. Id. Because Zulawski
failed to produce evidence that D’Hondt “intentionally or recklessly misrepresented facts in order
to secure the search warrant,” the district court correctly denied his request for a Franks hearing.
See Rodriguez-Suazo, 346 F.3d at 648. And, even if the statement was intentionally or recklessly
misleading, the subsequent Attorney General warrant resolved any concerns with the Army
warrant.
2. The Attorney General Warrant
Zulawski also contests the probable cause foundation of the Attorney General warrant,
acquired after the authorities involved determined that Zulawski would be prosecuted through
civilian courts. The warrant requested authorization to seize 13 electronic devices—including the
cage phone—and search the contents of each. Probable cause for this warrant relied in part on
Zulawski’s stepdaughter’s claim that he had sexually abused her. In his suppression motion,
Zulawski argued that this warrant was invalid because his stepdaughter’s allegations were not
sufficiently credible to support probable cause, and even if they were, they lacked a sufficient
nexus to the sting operation to support a search of the cage phone. Again, we disagree.
Zulawski principally relies on Wesley v. Campbell, 779 F.3d 421 (6th Cir. 2015), to suggest
his stepdaughter’s history of behavioral issues rendered her unreliable and her allegations against
him suspect. In Wesley, we addressed whether the plaintiff’s complaint “stated a claim for false
arrest” under Federal Rule of Civil Procedure 12(b)(6). Id. at 429–30. Accepting the plaintiff’s
allegations as true, we concluded that a counselor’s arrest for the sexual assault of a 7-year-old
student 84 days after the allegations were made was without probable cause because the student’s
- 12 -
Case No. 20-5577, United States v. Zulawski
allegations were unreliable for reasons that became apparent in the weeks after the accusations
were made. 779 F.3d at 424–26, 430. These reasons alleged in the complaint included the fact
that the place where the abuse allegedly occurred was “within the line of sight of other adult staff
members” at the school, the student’s medical examination “showed no evidence consistent with
his allegations of sexual abuse,” and the officer’s own investigation “failed to uncover any
evidence corroborating any aspect of the abuse [he] alleged.” Id. at 430.
Zulawski’s argument, however, fails to appreciate the significant differences between that
case and the facts presented here. For one thing, Zulawski’s stepdaughter alleged that he
photographed her in private, rather than a public-facing office. Cf. Wesley, 779 F.3d at 424–25.
For another, the aftereffects of the conduct alleged—taking photographs of himself inappropriately
touching her while she laid on the bed unclothed—would not have been evident through a medical
examination. Cf. id. at 430. And even then, the warrant here was to support a search of Zulawski’s
devices—not his arrest, as in Wesley—because he was already in custody. As we recently
explained, “[t]he probable-cause standard applies differently in different contexts.” United States
v. Baker, 976 F.3d 636, 645 (6th Cir. 2020). “The test for an arrest asks whether there is a
reasonable ground for belief of guilt specific to the suspect.” Id. (internal quotations and citation
omitted). The probable cause standard for searches, though, requires courts to ask “whether a
nexus exists between a crime and the place to be searched and whether information in an affidavit
is sufficiently timely to think that the sought-after evidence still remains at the identified location.”
Id. at 645–46 (internal quotations and citation omitted).
That brings us to Zulawski’s second argument: that his stepdaughter’s allegations lacked a
sufficient nexus to the sting operation to support a search of the cage phone. It fares no better than
the first. As Zulawski notes, for probable cause to exist, there must be “a nexus between the place
- 13 -
Case No. 20-5577, United States v. Zulawski
to be searched and the evidence sought.” United States v. Rose, 714 F.3d 362, 366 (6th Cir. 2013).
To establish that nexus, “there must be reasonable cause to believe that the items sought are located
on” (or within) the item to be searched. Id.Zulawski argues that because the sting operation produced no evidence that he viewed or
created child pornography, there was no nexus between it and his stepdaughter’s allegations. What
he fails to appreciate, however, is that the warrant was not specifically limited to the sting
operation. Rather, it sought to search and seize 13 specifically named electronic devices that could
“tend[] to show that a crime has been committed.” (Mot. to Suppress (Attorney General Warrant),
R. 31-5, PageID 554.) Because his stepdaughter’s allegations were sufficiently credible, the
affidavit included evidence that Zulawski had committed another crime: producing child
pornography with an electronic device. Consequently, the officers had sufficient probable cause
to search Zulawski’s phone. See United States v. Neuhard, 770 F. App’x 251, 253 (6th Cir. 2019)
cert. denied, 140 S. Ct. 570 (2019).
Since both warrants were properly supported by probable cause, we affirm the district
court’s denial of Zulawski’s request for a Franks hearing and his motion to suppress.
B. Admissibility of the Cage Phone Chats
After his motion to suppress was denied but before trial began, Zulawski objected to the
admission of the contents of the cage phone. The district court granted the motion in part, mostly
limiting the conversations to the individuals’ ages. On appeal, Zulawski argues that this was an
error because the cage phone chats should have been excluded in full under Rule 404(b) and Rule
403 of the Federal Rules of Evidence. Because Zulawski objected to the admission of this evidence
at trial, we review the district court’s decision to introduce it under three different standards of
review: “(1) for clear error the district court’s determination that the other act took place; (2) de
- 14 -
Case No. 20-5577, United States v. Zulawski
novo for the district court’s legal determination that the evidence was admissible for a proper
purpose; and (3) for an abuse of discretion the district court’s determination that the probative
value of the other acts evidence is not substantially outweighed by its unfairly prejudicial effect.”
United States v. Emmons, 8 F.4th 454, 473 (6th Cir. 2021) (internal modifications, quotations, and
citation omitted). “The decision to admit relevant but potentially unfairly prejudicial evidence is
a nuanced one traditionally committed to ‘the sound discretion of the trial court.’” United States
v. France, 611 F. App’x 847, 850 (6th Cir. 2015) (quoting United States v. Zipkin, 729 F.2d 384,
389 (6th Cir. 1984)).
Zulawski mounts both procedural and substantive attacks on the district court’s decision to
admit the cage phone chats. Procedurally, he argues the district court erred by not making an
explicit finding that Zulawski was a party to the cage phone conversations. Substantively,
Zulawski contends the cage phone chats were not probative of any permissible evidentiary purpose
under Rule 404(b) and, in any event, their prejudicial effect substantially outweighed their
probative value under Rule 403. Neither argument carries the day.
The relevant inquiry is “whether ‘there is sufficient evidence to support a finding by the
jury that the defendant committed the similar act.’” United States v. Yu Qin, 688 F.3d 257, 262
(6th Cir. 2012) (quoting Huddleston v. United States, 485 U.S. 681, 685 (1988)). And here, there
was. The district court admitted the cage phone chats only after it had spent a significant amount
of time reviewing them. Even before trial, the district court contemplated the admissibility of these
chats through a motion to suppress and a motion in limine. The court had the benefit of full briefing
on the issues and a magistrate judge conducted a hearing—with witnesses—on the cage phone’s
contents. The district court’s exhaustive contemplation of the admissibility of the cage phone chats
- 15 -
Case No. 20-5577, United States v. Zulawski
gives rise to the inference that the district court found he was a party to the conversations, even if
it did not explicitly say so. See United States v. Lattner, 385 F.3d 947, 956 (6th Cir. 2004).
Zulawski’s substantive objections fare no better. The government introduced the cage
phone texts to demonstrate Zulawski’s interest in pursuing sexual relations with minors and his
intent to entice D’Hondt’s children to engage in unlawful sexual conduct with him the night of the
sting operation. Assuming for the purposes of argument that he was a party to the chats, Zulawski
argues that they were not probative of his intent for two reasons. First, he notes that the age of
consent in Kentucky is 16. Because § 2422(b)’s language reaches only conduct that would be
unlawful under the law of the state where it would have occurred, conversations between him and
anyone over 16 would not be probative. Second, he contends that the cage phone chats were
neither substantially similar to the charged crime nor reasonably near in time because they did not
involve an adult intermediary and they occurred 14- to 16-months before his arrest.
As to Zulawski’s first argument, the district court correctly noted that the probative value
here does not turn on whether the anonymous users were actually underage—what matters is that
Zulawski believed them to be, and yet continued to pursue them. Other courts have confirmed that
evidence like this is admissible in § 2422(b) cases to show “intent, or lack of mistake, in arranging
sex with a minor,” even when the communication involved is separate from the charged conduct.
United States v. Cooke, 675 F.3d 1153, 1157 (8th Cir. 2012) (concluding a sexually explicit email
chain between the defendant and a purportedly 16-year-old Craigslist user was admissible under
Rule 404(b) to show intent to entice a 13- and 15-year-old); see also United States v. Harmon, 593
F. App’x 455, 460 (6th Cir. 2014) (holding defendant’s claims that he had previously engaged in
sexual acts with minors were admissible under Rule 404(b) to show state of mind). The
- 16 -
Case No. 20-5577, United States v. Zulawski
statements’ truth was insignificant—only the evidence of the perpetrator’s intent was. Harmon,
593 F. App’x at 460.
It is irrelevant, moreover, whether the government proved that the prior conversations
occurred or were unlawful under the law of a particular jurisdiction. See Huddleston v. United
States, 485 U.S. 681, 686–89 (1988) (holding that Rule 404(b) does not require “a preliminary
finding by the trial court that the act in question occurred”). Indeed, other courts have determined
technically lawful conversations with individuals under 18 are still probative of a defendant’s
intent to engage in sexual activity with those even younger. See, e.g., United States v. Dhingra,
371 F.3d 557, 566 (9th Cir. 2004) (reasoning defendant’s prior communications with a 17-year-
old were “highly probative” of his intent to engage in sex with a 13-year-old, notwithstanding the
fact that “it was legal to engage in sexual activity with a 17-year-old” in New Mexico).
Zulawski’s second argument—that the chats were neither substantially similar nor
reasonably near in time to be probative—is equally unpersuasive. He suggests that because the
cage phone chats involved no adult intermediaries and contained only generalized discussions of
sexual activity with no concrete plans to meet, they lack a substantial similarity to the charged
crime. But we have repeatedly held that “there is no requirement that the prior act must be identical
in every detail to the charged offense.” United States v. LaVictor, 848 F.3d 428, 447 (6th Cir.
2017) (internal quotations and citation omitted). Instead, the prior acts need only be “part of the
same scheme or involve a similar modus operandi as the present offense.” Emmons, 8 F.4th at
475 (internal modification, quotations, and citation omitted). In each of the cage phone chats,
Zulawski is flirtatious, unfailingly persistent (and flexible), and extremely complimentary of the
other after he initiates a photo exchange. The parallels between the cage phone chats and the
conversation with D’Hondt are substantially similar.
- 17 -
Case No. 20-5577, United States v. Zulawski
Finally, Zulawski’s argument that the time between the cage phone chats and his arrest
renders the cage phone conversations less probative is not supported by case law. Under our
precedent, “there is no absolute maximum number of years that may separate a prior act and the
offense charged.” LaVictor, 848 F.3d at 447 (internal quotations and citation omitted). Indeed,
the 16-month span between the start of cage phone chats and Zulawski’s arrest is quite near in time
comparatively. See, e.g., Emmons, 8 F.4th at 476 (uncharged conduct in 2011 was “reasonably
near in time” to 2014 offense); United States v. Hardy, 643 F.3d 143, 152 (6th Cir. 2011)
(observing this court has previously allowed four-year-old prior act evidence). Again, Zulawski’s
arguments come up short.
That leaves the Rule 403 balancing. To be admissible under Rule 404(b), the probative
value of the cage phone chats cannot be substantially outweighed by its potentially prejudicial
effect. Again, the district court retains “very broad discretion” in making this determination and
we “take[] a maximal view of the probative effect of the evidence and a minimal view of its
unfairly prejudicial effect,” meaning we “will hold that the district court erred only if the latter
outweighs the former.” United States v. Libbey-Tipton, 948 F.3d 694, 701 (6th Cir. 2020) (internal
quotations and citations omitted).
Zulawski argues that the portions of the cage phone conversations admitted were
unnecessarily lurid and inflammatory and could have influenced the jury to convict him because
they disapproved of sexually explicit conversations or because he was unfaithful to his wife.
And—for the first time—he also argues the court’s limiting instruction to the jury was
insufficiently particularized. Here, however, the district court spent a considerable amount of time
considering whether to admit the contents of the cage phone. When it did, the district court ordered
the government to redact irrelevant portions—and even then, it double-checked that the
- 18 -
Case No. 20-5577, United States v. Zulawski
government complied with its order. The district court used its broad discretion to admit the
evidence, but only for the relevant, permissible purpose it identified.
Additionally, the district court reinforced the evidence’s limited use just before
deliberations, when it instructed the jury to consider the cage phone texts only for Zulawski’s
“intent or motive, preparation, plan, knowledge, or identity.” (Trial Tr. Day 3, R. 158, PageID
2649.) Together, the district court and the parties considered the court’s pattern language for Rule
404(b) jury instructions and eliminated the irrelevant purposes (such as opportunity, absence of
mistake, or absence of accident). At that point, Zulawski was amenable to the instruction provided.
Though he now argues the court’s jury instruction was improper because it did not sufficiently
focus the jury’s attention on the disputed issue, Zulawski cannot establish plain error because
“[o]ne use listed by the jury instructions”—intent—“was actually at issue,” which “compel[s] the
conclusion that the district court did not commit plain error.” United States v. Newsom, 452 F.3d
593, 606 (6th Cir. 2006). The cage phone chats were properly admitted under Rule 404(b).
C. Admitting Evidence from the Pixel Phone
For the first time on appeal, Zulawski argues that the Pixel phone chats also should have
been excluded from trial. He argues the chats (1) do not qualify as res gestae; (2) are not probative
of a material non-character issue under Rule 404(b); and (3) carry prejudicial effects that
substantially outweigh their probative value. He also argues the Pixel phone’s browser history
was erroneously admitted, although again, he did not object to its admission at trial. Because
Zulawski raised no objection below, we review the admission of both pieces of evidence for plain
error. United States v. Cromer, 389 F.3d 662, 672 (6th Cir. 2004). To establish plain error,
Zulawski must show “(1) error (2) that was obvious or clear, (3) that affected defendant’s
- 19 -
Case No. 20-5577, United States v. Zulawski
substantial rights and (4) that affected the fairness, integrity, or public reputation of the judicial
proceedings.” United States v. Wallace, 597 F.3d 794, 802 (6th Cir. 2010). This, he cannot do.
At the top, Zulawski argues that the Pixel phone chats are neither res gestae evidence nor
probative of any permissible non-character purpose. He also contends their admission was
procedurally deficient because the district court failed to make the necessary findings to introduce
the evidence for one of those purposes, though he cites no case law in support of that contention.
The evidence need only be admissible as either res gestae or under Rule 404(b) for the district
court’s decision to survive his challenge—either one is sufficient to merit its introduction. See,
e.g., Emmons, 8 F.4th at 473–74; United States v. Ramer, 883 F.3d 659, 671 n.1 (6th Cir. 2018)
(“Because we conclude that the evidence was admissible under Rule 404(b), we need not examine
its admissibility as res gestae.”). But even if the evidence is admissible, however, it must be
properly admitted under Rule 403. See United States v. Churn, 800 F.3d 768, 779 (6th Cir. 2015).
Res gestae evidence—also known as background evidence or intrinsic evidence—is
admissible “in limited circumstances” at trial “when the evidence includes conduct that is
‘inextricably intertwined’ with the charged offense.” Id. (citation omitted). The evidence must
have a “causal, temporal, or spatial connection with the charged offense.” Id. (citation omitted).
This tends to include evidence that “is a prelude to the charged offense, is directly probative of the
charged offense, arises from the same events as the charged offense, forms an integral part of the
witness’s testimony, or completes the story of the charged offense.” Id. (internal quotations and
citations omitted). The Pixel chats’ close temporal and spatial proximity is undisputed.
Consequently, the parties mainly contest whether the Pixel chats sufficiently relate to the charged
offense or whether they have any other probative value.
- 20 -
Case No. 20-5577, United States v. Zulawski
Zulawski argues the Pixel chats are not a “prelude” to the § 2422(b) charge because they
purportedly transpired between consenting adults. His argument, however, is both speculative and
immaterial. Much like the cage phone chats, none of the users’ ages were verified. But even more
to the point, the lawfulness of the underlying conduct does not matter because “even unindicted
activity can be ‘inextricably intertwined’ with the actual charges.” Churn, 800 F.3d at 779.
As we have observed, “[t]he jury is entitled to know the setting of a case. It cannot be
expected to make its decision in a void–without knowledge of the time, place and circumstances
of the acts which form the basis of the charge.” United States v. Vincent, 681 F.2d 462, 465 (6th
Cir. 1982) (internal quotations and citation omitted). With that in mind, these chats served to
complete the story behind Zulawski’s charged offense in several ways. For one thing, the timing
(and explicit content) of Zulawski’s messages suggest he was singularly focused on finding sexual
partners, rather than planning a rescue mission (as he claims). As the government highlights,
Zulawski’s messages show he was flirting with another stranger within minutes of the point when
he claims to have figured out that D’Hondt was abusing her children, requiring his intervention.
For another, Zulawski’s discussions with others about the winter weather and severe road
conditions highlight what a significant step it was for him to then drive twenty-seven miles to meet
the family for sex. Because we conclude the evidence was admissible under res gestae, we need
not consider whether it was admissible under 404(b). Emmons, 8 F.4th at 473–74.
Finally, the evidence was properly introduced under Rule 403. See Churn, 800 F.3d at
779. The conversations admitted—lurid as they may be—all pertain to Zulawski’s intent to engage
in sexual acts. Thus, they carry “legitimate probative force” to the charge of attempted enticement
under § 2422. Newsom, 452 F.3d at 604 (citation omitted). Consequently, they do not surmount
the “high standard of review” reserved for reversing a district court’s Rule 403 calculation. Id.;
- 21 -
Case No. 20-5577, United States v. Zulawski
see also United States v. Asher, 910 F.3d 854, 860 (6th Cir. 2018) (noting “[t]he test is strongly
weighted toward admission”).
For the foregoing reasons, the district court did not err by introducing any of the contested
evidence. Consequently, Zulawski’s request to remand for a new trial under the cumulative error
doctrine falls flat because “[w]here . . . no individual ruling has been shown to be erroneous, there
is no ‘error’ to consider, and the cumulative error doctrine does not warrant reversal.” United
States v. Sypher, 684 F.3d 622, 628 (6th Cir. 2012).
D. Sufficiency of the Evidence
Following trial, Zulawski moved for judgment of acquittal under Federal Rule of Criminal
Procedure 29, arguing that the government failed to prove Zulawski intended to entice the minors
to engage in unlawful sexual acts. We review the denial of a motion for judgment of acquittal de
novo. United States v. Howard, 947 F.3d 936, 947 (6th Cir. 2020). The question before the court
is “whether any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” Id. (citation omitted). The jury’s verdict receives “the benefit of all
inferences which can reasonably [be] drawn from the evidence, even if the evidence is
circumstantial.” United States v. Rozin, 664 F.3d 1052, 1058 (6th Cir. 2012) (citation omitted).
The defendant bears the “very heavy burden,” United States v. Sease, 659 F.3d 519, 523 (6th Cir.
2011) (internal quotations and citation omitted), of convincing us that the judgment against him
“is not supported by substantial and competent evidence upon the record as a whole.” United
States v. Barnett, 398 F.3d 516, 522 (6th Cir. 2005) (citation omitted).
Zulawski was convicted of one count of attempting to entice a minor to engage in unlawful
sexual activity under 18 U.S.C. § 2422(b). “To convict a defendant under § 2422(b), the
government must show that the defendant (1) ‘use[d] the mail or any facility or means of interstate
- 22 -
Case No. 20-5577, United States v. Zulawski
or foreign commerce’; (2) to ‘knowingly persuade[], induce[], entice[], or coerce[]’ or ‘attempt[]
to’ persuade, induce, entice or coerce; (3) a person who the defendant believed to be under the age
of eighteen; (4) ‘to engage in prostitution or any sexual activity for which any person can be
charged with a criminal offense.’” United States v. Vinton, 946 F.3d 847, 852 (6th Cir. 2020)
(citations omitted, alterations in original). Because Zulawski is charged with attempt, the
government must show that he “intended to persuade or entice a minor to participate in unlawful
sexual conduct” and “took a substantial step toward persuading or enticing a minor.” Id. (citation
omitted).
Of the essential elements, Zulawski argues only that the second—the intent to entice or
persuade—is lacking. Specifically, he argues that the evidence against him was insufficient
because it demonstrated only his “intent to engage in sexual contact with minors, not the ‘clearly
separate and different intent[]’ to persuade” them to do so. (Appellant Br. at 20 (quoting United
States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000)).) He contends there were two main deficiencies
in the prosecution’s case: (1) a lack of evidence that he made any effort to use D’Hondt as an
intermediary to gain the minor’s assent and (2) no physical evidence that would suggest that he
intended to persuade or entice the minors at the rendezvous. These arguments, however, find little
support in our case law. In both United States v. Roman, 795 F.3d 511 (6th Cir. 2015) and United
States v. Vinton, 946 F.3d 847 (6th Cir. 2020), we rejected a defendant’s efforts to dismiss
§ 2422(b) indictments because we found that a defendant’s communications with an adult
intermediary could satisfy the statute’s enticement requirement.
In Roman, the defendant posted an advertisement on Craigslist seeking to have sex with
younger women. 795 F.3d at 513. A special agent responded, claiming to be a father who was
sexually active with his 11-year-old daughter. Id. The two discussed the sexual acts the defendant
- 23 -
Case No. 20-5577, United States v. Zulawski
wished to perform with the minor and the defendant agreed to abide by any parameters her father
set. Id. at 513–14. The defendant requested the minor’s photograph, asked about the minor’s
sexual preferences, and asked what gifts he could bring with him to “break the ice.” Id. at 514.
When the defendant arrived at the meeting location with—among other things—the minor’s
favorite candy, he was arrested. Id.
We emphasized these facts when describing how the defendant satisfied § 2422(b)’s intent
requirement. First, we explained the defendant’s representations that he would be respectful of
the minor and not cause her harm were designed to influence her father to help the defendant secure
the minor’s assent. Id. at 517–18. We then considered what steps the defendant took to secure the
daughter’s assent individually and found that the defendant’s questions about her sexual and
general preferences were also aimed at acquiring her assent. Id. at 518.
We built upon Roman’s foundation in Vinton. There, we reversed a district court’s
dismissal of a § 2422(b) indictment because we determined that the government could carry its
burden on the intent requirement. Vinton, 946 F.3d at 849. Much like the instant case, the
defendant corresponded with a purportedly 36-year-old mother about having sex with her and her
12-year-old daughter. Id. at 850. He asked in graphic detail about the sexual acts the daughter
could and would perform and “suggested that the [mother] could help him be gentle with the girl
and help him make sure the girl enjoyed the sexual encounter.” Id. at 850–51, 855. Relying on
Roman, the defendant asserted the indictment against him should be dismissed in part because he
did not “use the adult intermediary”—in this case, the girl’s mother—“as a messenger to convey
the defendant’s own enticing messages to the minor.” Id. at 853.
We clarified that our decision in Roman does not require that a defendant use an adult
intermediary as a messenger or that “the specific means of inducing or enticing the child must
- 24 -
Case No. 20-5577, United States v. Zulawski
come from the defendant himself.” Id. Rather, it was sufficient for a defendant to “rel[y] on the
expertise of the parent in determining how best to entice the child.” Id. Ultimately, we stressed a
reasonable juror could find that the defendant was “aware of the special influence of parents over
their children” and intended to exploit it when the time came. Id. at 855. Accordingly, we reversed
the dismissal of the indictment.
Although Zulawski’s approach differed from both Roman and Vinton in material respects,
the ultimate result is the same: a reasonable juror could find that he intended to rely on the expertise
of the minors’ mother to entice them into performing unlawful sexual activities. This saga began
when Zulawski responded to an advertisement for “taboo/incest” with a 30-year-old divorced
“mom.” (PSR, R. 141, PageID 1856 (emphasis added).) He knew at the outset that she was related
to the children and was thus likely “aware of the special influence” she had over them. Vinton,
946 F.3d at 855. This suspicion was likely only bolstered by D’Hondt’s startling admission that
the children had been engaging in incest since they were four and six years old. Then, reminiscent
of Roman, Zulawski claimed to be free from sexually transmitted diseases to put the mother’s mind
at ease. See 795 F.3d at 517. He also agreed to abide by the mother’s terms, even though that
meant driving 30 miles on icy roads to meet the family at a neutral location. Id. at 514. And
perhaps most importantly, much like Roman and Vinton, Zulawski asked about the minors’ sexual
histories and whether they were “as excited” for the rendezvous as the adults purported to be.
(PSR, R. 141, PageID 1863); Vinton, 946 F.3d at 850–51; Roman, 795 F.3d at 513–14. Under
these facts, a rational factfinder could determine Zulawski possessed the requisite intent.
Zulawski’s second argument—that lack of physical evidence undermines his intent—is
also unsupported. Although we noted that a reasonable jury could have concluded that Vinton
brought cash with him to the meeting to help convince the minor to engage in sexual acts with
- 25 -
Case No. 20-5577, United States v. Zulawski
him, we by no means placed dispositive weight on this fact. See Vinton, 946 F.3d at 854. We are
not the only court to arrive at this conclusion. Indeed, United States v. Nitschke, 843 F. Supp. 2d
4 (D.D.C. 2011)—the same case that Zulawski holds out as bolstering his first argument—severely
undercuts his second. Though not binding on this court, Nitschke stresses § 2422(b) criminalizes
“an intent to persuade using a means of interstate commerce” rather than “an intent to persuade at
some later point in person.” 843 F. Supp. 2d at 11 (emphasis added). Though physical evidence
can certainly support an individual’s intent to persuade, its absence does not present a bar to
proving intent.
After affording the government the benefit of all inferences that can be drawn from the
record, we conclude a reasonable juror could have found Zulawski intended to use D’Hondt to
gain the minors’ assent. We affirm the district court’s denial of Zulawski’s motion for judgment
of acquittal.
E. Obstruction of Justice Sentence Enhancement
Finally, Zulawski argues that the district court improperly applied a two-level sentence
enhancement for perjury because it did so without first finding that he falsely testified when he
claimed he did not send the text messages on the cage phone. Although we have recently
acknowledged that “[t]he precise standard of review for a district court’s decision to impose the
obstruction of justice enhancement is unclear,” we need not resolve the dispute because Zulawski’s
challenge fails even under de novo review, the one most-favorable to him. United States v. Bailey,
973 F.3d 548, 572 (6th Cir. 2020) (citing United States v. Thomas, 933 F.3d 605, 608–10 (6th Cir.
2019)).
- 26 -
Case No. 20-5577, United States v. Zulawski
When a defendant has “willfully obstructed or impeded . . . the administration of justice
with respect to the investigation, prosecution, or sentencing of the instant offense of conviction,”
his Total Offense Level is increased by two. U.S.S.G. § 3C1.1. “[C]ommitting, suborning, or
attempting to suborn perjury” constitutes obstruction of justice for the purposes of the
enhancement. U.S.S.G. § 3C1.1 cmt. 4(b). The parties agree that the district court must “identify
those particular portions of the defendant’s testimony that it considers to be perjurious” and “make
specific findings for each element of perjury” to support the enhancement’s application. United
States v. Sassanelli, 118 F.3d 495, 501 (6th Cir. 1997) (citation omitted). Zulawski contends the
district court failed to do either.
At the outset, Zulawski argues that the district court’s identification of his allegedly
perjurious statements was too general, but his contention is not supported by the record. First, the
PSR explicitly stated that Zulawski obstructed justice when he testified that “he did not send
previous text messages from [the cage] phone.” (PSR, R. 141, PageID 1843.) Then, at the
sentencing hearing, the government clarified that the enhancement rose and fell on the same.
During the hearing, the district court described in detail what it understood the government’s basis
for an enhancement to be:
[W]ith regard to that phone, there were text messages sent from a designation of
anon, A-N-O-N, as well as text messages there were sent from – and – well, the
question with that particular phone is whether that was in fact the defendant or
somebody else. And the evidence that the government put on were – was based on
the content of those text messages, which the government argues ties your client to
those text messages, in essence, and, of course, he’s denied that that was him, and
the government says that is a willful lie; that’s perjury, and it’s a matter that’s
material here to the jury making their determination. So I think I’ve framed the
issue; is that fair?
- 27 -
Case No. 20-5577, United States v. Zulawski
(Sentencing Tr., R. 162, PageID 2940.) All the parties agreed that this was correct. Consistent
with that mutual understanding, defense counsel highlighted the specific portions of testimony in
question:
Mr. Zulawski addressed [whether he was the sender of the text messages] head-on
at trial. . . . His response was he had two potential people that had access to [the
phone], as well as anybody else that was in the home. . . . So anybody that knew
his code into his phone or knew his Kik app name [was] zulu828, and had a picture,
presumably could go in there and do exactly these text messages, and that was the
client’s testimony.
...
[W]hat Mr. Zulawski testified is, it could have been Ms. Zulawski, very upset with
the whole situation and text, and put these text messages on there. But again, that
was his testimony.
(Id. at PageID 2947–48.) And the court further specified the reason for the enhancement on the
record:
[T]he very specific fact [at issue] is, did he send these text messages or not? He
knows whether he sent these text messages or not. And he may maintain that he
didn’t, but we have to kind of objectively look at it and determine whether or not
his – you know, he’s continuing to maintain that those text messages were his is in
fact perjurious because the evidence shows that they could not have been someone
else’s.
(Id. at PageID 2943–44.) After “consider[ing]” Zulawski’s “testimony under oath” and the
government’s evidence, the district court concluded that the government had demonstrated “by at
least a preponderance of the evidence that that was [Zulawski] texting” and applied the
enhancement. (Id. at PageID 2950–51.) Therefore, the record shows that the district court properly
identified the perjurious portion of Zulawski’s testimony for purposes of applying the
enhancement. See Sassanelli, 118 F.3d at 501.
Zulawski’s second argument—that the district court failed to make specific findings for
each element of perjury—is also belied by the record. “Perjury is (1) a false statement under oath
- 28 -
Case No. 20-5577, United States v. Zulawski
(2) concerning a material matter (3) with the willful intent to provide false testimony.” United
States v. Kamper, 748 F.3d 728, 747 (6th Cir. 2014) (citation and internal quotation marks
omitted). As we have explained, in an ideal world, the district court would explicitly “explain[]
why the facts satisfied each element of perjury.” United States v. Thomas, 272 F. App’x 479, 488
(6th Cir. 2008). We have, however, previously affirmed on less “so long as the record below is
sufficiently clear to indicate . . . that the district court found that those statements satisfied each
element[.]” Sassanelli, 118 F.3d at 501. The district court stated that it must “find those elements
here.” (Sentencing Tr., R. 162, PageID 2950.) The portions of the transcript excerpted above
confirm that the district court found that Zulawski willfully gave a false statement under oath. The
only question remaining, then, is whether the court found that the statements were material.
The record supports that it did. The district court acknowledged it was the government’s
contention that the identity of the person responsible for the cage phone texts was “a matter that’s
material here to the jury making their determination.” (Sentencing Tr., R. 162, PageID 2940.)
And the government agreed, explaining at length that the cage phone texts had every potential to
“crumble [Zulawski’s] case” by severely undermining his rescue defense and convincing the jury
of his true intent. (Id. at PageID 2944–47.) Ultimately, the court concluded that “given the
strength of what the government has identified, both in their written filings and then in the
argument here in court,” the enhancement properly applied. (Id. at PageID 2951.)
We have never required district courts to “parrot” back the government’s recitation of the
relevant facts so long as the court “makes clear that it has independently adopted the government’s
version” of events. Sassanelli, 118 F.3d at 501. And we will not start here, although we remind
district courts of our court’s explicit preference for making specific findings on the record. See
United States v. Roberts, 919 F.3d 980, 990 (6th Cir. 2019). Because the district court properly
- 29 -
Case No. 20-5577, United States v. Zulawski
identified the perjurious portions of Zulawski’s testimony and found each element of perjury
satisfied, we affirm the district court’s obstruction of justice enhancement.
III. CONCLUSION
We affirm the district court’s judgments in full.
- 30 -