United States v. Joseph Pirosko , 787 F.3d 358 ( 2015 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0098p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
│ No. 14-3402
v. │
>
│
JOSEPH PIROSKO, │
Defendant-Appellant. ┘
Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 5:12-cr-00327—Christopher A. Boyko, District Judge.
Argued: April 21, 2015
Decided and Filed: May 21, 2015
Before: SILER, MOORE, and STRANCH, Circuit Judges.
_________________
COUNSEL
ARGUED: Wendi L. Overmyer, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Akron,
Ohio, for Appellant. Laura McMullen Ford, UNITED STATES ATTORNEY’S OFFICE,
Cleveland, Ohio, for Appellee. ON BRIEF: Wendi L. Overmyer, Melissa M. Salinas, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Akron, Ohio, for Appellant. Laura McMullen Ford,
UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. On June 6, 2012, federal agents executed a
search warrant on Joseph Pirosko’s hotel room. They seized a laptop computer and a USB drive;
a later analysis revealed numerous images and video files depicting child pornography on both
1
No. 14-3402 United States v. Pirosko Page 2
devices. A grand jury returned a two-count indictment against Pirosko, charging him with
knowingly receiving and distributing numerous computer files containing visual depictions of
real minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2), and
knowingly possessing a computer and a USB storage device, each containing child pornography,
in violation of 18 U.S.C. § 2252A(a)(5)(B).
After his indictment, Pirosko filed a motion to compel discovery, requesting that the
district court “order that the government disclose the law enforcement tools and records used . . .
to search Mr. Pirosko’s computer equipment.” The district court denied this motion, citing the
sensitive nature of the computer programs and Pirosko’s lack of a demonstrated need for
discovery. Pirosko then filed a motion to suppress, arguing that his Fourth Amendment rights
were violated because the government’s search warrant was obtained using unreliable and
unsupported information. The district court again denied this motion. Pirosko subsequently
entered a conditional guilty plea with respect to the first count in his indictment. At sentencing,
the district court found Pirosko’s Guidelines range to be between 262 and 327 months of
imprisonment. He ultimately received a sentence of 240 months of imprisonment, the statutory
maximum.
Pirosko makes four arguments on appeal. First, he contends that the district court abused
its discretion in denying his motion to compel discovery. He substantially reiterates these
arguments with respect to his motion to suppress. In addition, Pirosko also claims, for the first
time, that the government used unconstitutional warrantless tracking in order to obtain its search
warrant. Finally, Pirosko asserts that his sentence is greater than necessary to comply with the
purposes of 18 U.S.C. § 3553(a). These claims are without merit. Accordingly, we AFFIRM
Pirosko’s conviction and sentence.
I. BACKGROUND
A. Facts
According to the criminal complaint, Officer Edward Sexton of the Nebraska Department
of Justice noticed, in March 2012, an IP address sharing several “notable” files of child
pornography via a file-sharing program. R. 1-1 (Criminal Compl. at 12) (Page ID #13). Sexton
No. 14-3402 United States v. Pirosko Page 3
observed that there were three different Globally Unique Identifier (GUID) numbers on this
particular IP address.1 Of these three numbers, two had last been used in 2008 and 2009. The
third had been in more frequent use, first logging into the Gnutella file-sharing network in
January 2012. Sexton began tracking this third GUID. He set up a direct connection and
attempted to obtain a list of all notable files being shared by the associated computer and, when
possible, downloaded directly some of the files being shared. Over the next few months, Sexton
was able to connect with the GUID and download shared files numerous times. He also found
the GUID associated with IP addresses from hotels across the country. After examining the
guest lists at each of these hotels, Sexton determined that the GUID in question belonged to
Joseph Pirosko. On June 4, 2012, Sexton submitted an affidavit in support of a search warrant
for material in Pirosko’s hotel room in Wooster, Ohio. The district court granted this warrant,
and officers seized Pirosko’s computer, where they found numerous files containing child
pornography on the shared folder of his LimeZilla account. Officers also seized a USB drive.
B. Motion to Compel
After an initial discovery request, in response to which the government provided Pirosko
with an opportunity to review the equipment that it had seized, Pirosko filed a motion to compel
discovery of the “law enforcement tools . . . [used] to assess information in connection with the
particular GUID . . . associated with Mr. Pirosko’s computer equipment.” R. 26 (Mot. to
Compel Disc. at 2) (Page ID #175). Pirosko stated that he was entitled to these materials
pursuant to Federal Rule of Criminal Procedure 16, which states that,
Upon a defendant’s request, the government must permit the defendant to inspect
and to copy or photograph books, papers, documents, data, photographs, tangible
objects, buildings or places, or copies or portions of any of these items, if the item
is within the government’s possession, custody, or control and:
(i) the item is material to preparing the defense;
(ii) the government intends to use the item in its case-in-chief at trial; or
(iii) the item was obtained from or belongs to the defendant.
1
Each internet network is assigned a separate IP address; this address refers to the physical location of that
particular network. A GUID number is produced whenever a peer-to-peer (P2P) file-sharing application (like
LimeZilla) is installed or updated on a computer, and remains associated with the computer whenever the file-
sharing program is in use. R. 1-1 (Criminal Compl. at 11) (Page ID #12). Pirosko’s GUID number thus remained
the same over the course of the investigation, even though he logged onto different internet networks (with different
IP addresses) across the country.
No. 14-3402 United States v. Pirosko Page 4
Fed. R. Crim. P. 16(a)(1)(E). In support of this motion, Pirosko submitted a letter from
Interhack, a computer analysis company, which noted that “[a]nalysis of the tools used by
investigators to create records can determine whether law enforcement officers manipulated data
on the subject computer, the error rates in records used, or whether the GUID in question at a
particular time is connected to a particular installation of LimeZilla.” R. 26-1 (Exh. in Mot. to
Compel Disc. at 4) (Page ID #181).
The government responded by noting that it had connected with Pirosko’s computer
using ShareazaLE, a proprietary program used exclusively by law enforcement. According to
the government, this program allows officials to download files exclusively from a target’s
computer (users of publicly available file-sharing programs download from multiple sources in
order to expedite the download process). It opposed Pirosko’s request for access, stating that
ShareazaLE was a form of “sensitive law enforcement surveillance software protected . . . by
qualified privilege.” R. 32 (Resp. to Mot. to Compel Disc. at 4) (Page ID #199). In addition, the
government argued that Pirosko had failed, under Federal Rule of Criminal Procedure 16, to
show materiality. The district court denied Pirosko’s motion to compel, relying largely on the
government’s privilege argument and finding that Pirosko had failed to show a particular need
for access.
C. Motion to Suppress
Pirosko subsequently filed a motion to suppress, alleging that the government’s search
warrant had relied on unreliable information. This motion largely repeated arguments made in
his motion to compel. Pirosko also claimed that Sexton’s affidavit would not qualify as expert
evidence under Daubert. In response, the government argued that Pirosko had failed to meet the
burden necessary to warrant a Franks hearing. Furthermore, the government contended that,
even if its search warrant affidavit lacked probable cause, it would nonetheless fall within the
good-faith exception. The district court agreed with the government’s position. In addition, it
stated that “even if the Court eliminated all mentions of the law enforcement database or the
GUIDs, the Court finds that it was reasonable for the magistrate to find probable cause,” because
Pirosko “was a guest at hotels in Nebraska, Missouri, New Jersey, Utah and Ohio over a three-
month period” and, during each of these stays, Pirosko “connected to the same peer-to-peer
No. 14-3402 United States v. Pirosko Page 5
network, used the same software, and downloaded images of child pornography from a
computer.” R. 42 (District Ct. Op. Den. Mot. to Suppress at 7) (Page ID #342).
D. Plea Agreement and Sentencing
Pirosko agreed to plead guilty to count one of his indictment, which charged him with
“knowingly receiv[ing] and distribut[ing], using any means or facility of interstate and foreign
commerce, numerous computer files, which files contained visual depictions of real minors
engaged in sexually explicit conduct,” in violation of 18 U.S.C. § 2252(a)(2). R. 8 (Indictment at
1) (Page ID #89); R. 45 (Plea Agreement at 2) (Page ID #350). Under the terms of his plea
agreement, Pirosko waived his right to appeal except with respect to the district court’s decision
to deny his motion to compel, the district court’s decision to deny his motion to suppress, the
determination of his criminal history category at sentencing, and any sentence greater than
necessary to comply with the purposes of 18 U.S.C. § 3553(a). Id. at 5 (Page ID #353).
At sentencing, the district court found Pirosko’s Guidelines range to be between 262 and
327 months of imprisonment, pursuant to an offense level of 39 and a criminal history category
of I. In making Pirosko’s offense level determination, the district court started with a base
offense level of 22, added twenty levels in various enhancements, and subtracted three levels for
acceptance of responsibility. Pirosko received a sentence of 240 months of imprisonment, the
statutory maximum. On appeal, Pirosko contends that the district court erred in denying his
motion to compel and his motion to suppress. With respect to his motion to suppress, Pirosko
asserts, for the first time, that officers engaged in unconstitutional warrantless tracking of his
computer. Pirosko also contends that his sentence is procedurally and substantively
unreasonable. With respect to his procedural-unreasonableness argument, Pirosko claims
specifically that the district court erred in applying a two-level enhancement for distribution, a
five-level enhancement for pattern of activity, and a five-level enhancement for number of
images.
No. 14-3402 United States v. Pirosko Page 6
II. DISCUSSION
A. Motion to Compel
1. Standard of Review
“We review the denial of a motion to compel production, as an evidentiary matter within
the trial court’s discretion, for an abuse of discretion.” United States v. Blood, 435 F.3d 612, 627
(6th Cir. 2006). “An abuse of discretion occurs when we are left with the ‘definite and firm
conviction that the [district] court . . . committed a clear error of judgment in the conclusion it
reached upon a weighing of the relevant factors’ or ‘where it improperly applies the law or uses
an erroneous legal standard.’” United States v. Haywood, 280 F.3d 715, 720 (6th Cir. 2002)
(quoting Huey v. Stine, 230 F.3d 226, 228 (6th Cir. 2000)). “Reversal is appropriate only if the
‘abuse’ was not harmless ‘error.’” United States v. Vasilakos, 508 F.3d 401, 406 (6th Cir. 2007).
2. Analysis
a. Law Enforcement Privilege
In evaluating the government’s privilege argument, we agree with the district court’s
decision to apply a balancing approach, weighing the government’s concerns against the needs
articulated by Pirosko. We have applied this sort of framework before. See United States v.
Gazie, 786 F.2d 1166, 1986 WL 16498, at *8–*9 (6th Cir. 1986) (Table) (applying balancing
approach with respect to argument regarding the location of government surveillance
equipment).
In the context of this case, the government argues that granting Pirosko’s motion to
compel would compromise the integrity of its surveillance system and would frustrate future
surveillance efforts. Pirosko, on the other hand, contends that the government should have
turned over a copy of its software, thereby allowing his experts to determine whether
ShareazaLE gives government officials “the ability to manipulate settings or data on the target
computer (even unintentionally),” “whether the software allows agents to override shared
settings to download files that a normal user would not be able to download,” and “the error rate”
associated with the software. Appellant Br. at 18–19. Pirosko cites several cases where
No. 14-3402 United States v. Pirosko Page 7
defendants have purportedly been allowed access to the government’s software, including the
Ninth Circuit’s decision in United States v. Budziak, 697 F.3d 1105 (9th Cir. 2012).
His reliance on these cases is not well taken. In its opinion denying Pirosko’s motion to
compel, the district court pointed to a number of reasons why this case was not simply a re-
iteration of Budziak. Budziak, for instance, had filed multiple motions to compel. “In support of
his first two motions to compel, Budziak presented evidence suggesting that the FBI may have
only downloaded fragments of child pornography files from his ‘incomplete’ folder, making it
‘more likely’ that he did not knowingly distribute any complete child pornography files.” 697
F.3d at 1112. “In support of his third motion to compel, Budziak submitted evidence suggesting
that the FBI agents could have used the EP2P software to override his sharing settings.” Id.
Pirosko has failed to produce any such evidence, simply alleging that he might have found such
evidence had he been given access to the government’s programs.
Tellingly, in Budziak, the Ninth Circuit also noted that, “[a]lthough the government
argued that the computer logs it provided Budziak demonstrated that he would not uncover any
helpful information through discovery of the software, the declarations of Budziak’s computer
forensics expert stated otherwise.” Id. The court then stated, in an accompanying footnote, that
This evidence distinguishes the instant case from Chiaradio, where the First
Circuit held that the defendant could not demonstrate prejudice resulting from
nondisclosure of the EP2P source code. In Chiaradio, the defendant “neither
contradicted nor cast the slightest doubt upon” the government’s testimony that
the materials it had already provided to him verified that an FBI agent
downloaded files containing child pornography from his computer. In contrast,
Budziak presented arguments and evidence suggesting that the materials disclosed
by the FBI did not resolve all questions relevant to his defense.
Id. at n.1 (citations omitted).
To summarize, in deciding to deny Pirosko’s motion to compel, the district court had
before it the First Circuit’s decision in United States v. Chiaradio, 684 F.3d 265, 278 (1st Cir.
2012), where the defendant did not provide any evidence of government error, and the Ninth
Circuit’s decision in Budziak, where the defendant did provide evidence of error. Here, the
strongest evidence of error was a single sentence in a letter by Interhack, a firm hired by Pirosko,
which stated that “[t]he [government’s] affidavit does not show which tools, which records, or
No. 14-3402 United States v. Pirosko Page 8
the means by which those records were created, leaving otherwise answerable questions
unanswered.” R. 26-1 (Exh. in Mot. to Compel Disc. at 4) (Page ID #181). That lone allegation
is simply not enough to overcome the numerous facts supporting the government’s position that
it legitimately obtained child pornography from Pirosko’s shared folders.
To be clear, this conclusion should not be read as giving the government a blank check to
operate its file-sharing detection software sans scrutiny. As a general matter, it is important that
the government’s investigative methods be reliable, both for individual defendants like Pirosko
and for the public at large. Still, we think that it is important for the defendant to produce some
evidence of government wrongdoing. We have held as much in cases involving more traditional
police investigation techniques. See, e.g., United States v. Boxley, 373 F.3d 759, 761 (6th Cir.
2004) (stating that, with respect to dog sniffs, “it is not necessary for the government to show
that the dog is accurate one hundred percent of the time, because a very low percentage of false
positives is not necessarily fatal to a finding that a drug detection dog is properly trained and
certified”) (internal quotation marks omitted). Pirosko has failed to produce any such evidence
here, even after receiving the government’s computer logs, which included information on when
law enforcement officials were able to connect to his computer and what files they were able to
download from his shared folder. Pirosko has, moreover, conceded that he did not turn off his
upload settings—he simply argues that his settings allowed for a low rate of downloading, a
point that we discuss in greater detail below. It would not have been difficult for Pirosko, armed
with this information, to establish some evidence of government wrongdoing, had any such
wrongdoing actually occurred: he knew the size of the files being downloaded, the approximate
download speed, and the time when the government allegedly downloaded these files. What
remains is a simple exercise in arithmetic. Pirosko has either failed to do this exercise or, having
done it, has realized that the math simply does not add up. In any event, he has failed to
demonstrate that the district court abused its discretion in denying his motion to compel
discovery.
As a final note, the remaining decisions cited by Pirosko are likewise unavailing. In fact,
one of the primary cases relied upon by Pirosko—United States v. Crowe, No. 11 CR 1690 MV
(D.N.M. Apr. 3, 2013)—actually points in favor of the government, not Pirosko. In that case, the
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district court denied Crowe’s motion to compel discovery, but granted Crowe’s motion for
independent evaluation by an expert of the government’s software, pursuant to Federal Rule of
Criminal Procedure 16. Id. at 15. Yet in reaching this decision, the district court noted that,
“[a]s in Budziak, in this case, Defendant submitted the testimony of his expert witness, Tami
Loehrs, who indicated that during her examination of Defendant’s computer, some of the files
alleged to have been found by law enforcement in the shared space of Defendant’s computer,
were not found there during her analysis.” Id. at 13. Pirosko has, as we have already noted, not
submitted any such evidence. More importantly, Crowe’s reliance on Loehrs’s affidavit appears
to have been a mistake. In fact, in a subsequent case, United States v. Thomas, Nos. 5:12-cr-37,
44, 97, 2013 WL 6000484 (D. Vt. Nov. 8, 2013), the district court considered and completely
discredited Loehrs’s statements. In Thomas, as in Crowe, Loehrs prepared a report summarizing
her knowledge of the government’s software. After reviewing this report, the district court stated
in Thomas that “Ms. Loehrs’s declarations . . . [we]re misleading in several respects.” Id. at *12.
The district court continued, finding that:
As a preface to a list of twenty-five cases identified in her declarations, Ms.
Loehrs states; [sic] “I have also learned through hundreds of forensic
examinations on cases involving undercover P2P investigations and allegations of
child pornography, that files are being identified by law enforcement’s automated
software as containing child pornography when, in fact, they do not.” However,
none of the cases listed in Ms. Loehrs’s declarations appeared to have resulted in
a judicial finding to that effect.
Id. (citation omitted). “In her declaration . . . , Ms. Loehrs stated that she did not find the files
identified in the Neale search warrant affidavit on Defendant Neale’s computer when she
examined it.” Id. Yet she essentially retracted this statement on cross-examination. The district
court also noted that “[t]he most troubling aspect of Ms. Loehrs’s expert opinions in this case is
her reliance on her work in other cases which was either disproved or rejected.” Id. at *14. If
anything, Crowe and Thomas point in the government’s favor—both cases show that allowing
Pirosko access without any evidence of error would needlessly expose the government’s
enforcement tools to examination and pointlessly drag out the course of litigation.
No. 14-3402 United States v. Pirosko Page 10
b. Materiality
Pirosko’s arguments fail also for a second reason: he cannot establish materiality. In
interpreting the issue of materiality, we have held that Federal Rule of Criminal Procedure 16
applies only to “‘shield’ claims that ‘refute the Government’s arguments that the defendant
committed the crime charged.’” United States v. Robinson, 503 F.3d 522, 532 (6th Cir. 2007)
(quoting United States v. Armstrong, 517 U.S. 456, 462 (1996)). Requests for discovery fall
outside the scope of this provision if a defendant is “not seeking the discovery to aid in the
preparation of his defense,” but is “attempting to obtain the discovery for the purpose of
gathering materials to support various sentencing arguments.” Robinson, 503 F.3d at 532.
The purpose of Pirosko’s motion to compel is not to aid in the preparation of his defense,
but to contradict the district court’s finding of distribution at sentencing—a point made by
Pirosko in his brief and by his counsel at oral argument. After all, Pirosko was charged with
violating 18 U.S.C. § 2252(a)(2), which penalizes the knowing receipt or distribution of child
pornography. Pirosko does not contest that he received child pornography—his arguments
pertain only to distribution. Although a finding of distribution can result in a sentencing
enhancement under the Guidelines, such a finding is not required for a conviction under
18 U.S.C. § 2252(a)(2).
To be sure, Pirosko’s indictment and plea agreement did charge him with both receipt
and distribution. See R. 8 (Indictment at 1) (Page ID #89); R. 45 (Plea Agreement at 3) (Page ID
#351). But “[i]t is settled law that an offense may be charged conjunctively in an indictment
where a statute denounces the offense disjunctively. Upon the trial the government may prove
and the trial judge may instruct in the disjunctive form used in the statute.” United States v.
Murph, 707 F.2d 895, 896–97 (6th Cir. 1983) (citation omitted); see also United States v. Jones,
533 F. App’x 562, 572 (6th Cir. 2013) (citing Murph).
Even if distribution were a required element for conviction, discovery of the
government’s software would have been immaterial. In his sentencing memorandum, Pirosko
submitted a report that concluded that he had taken actions that were “consistent with a user
attempting to disable file sharing.” R. 52-1 (Exh. A in Pirosko Sentencing Mem. at 13) (Page ID
#566). But, on this same page, the report noted that, although Pirosko attempted to reduce his
No. 14-3402 United States v. Pirosko Page 11
upload speed by moving a graphical slider on his computer screen, “[w]hat . . . the user might see
logically as ‘zero percent’ is in fact not an actual upload speed of zero.” Id. In addition, the
report stated that “[t]he data are characteristic of the user manually changing the [number of
upload slots] from 20 to 1,” not 20 to 0. These facts corroborate the screenshot taken of
Pirosko’s computer, included as an exhibit by the government in its sentencing memorandum.
R. 53-1 (Exh. A in Gov’t Sentencing Mem. at 1) (Page ID #699). That screenshot shows
Pirosko’s upload speed to be 10.94 kilobytes per second (not 0 kilobytes per second) and
includes a dialog box that reads: “[t]o turn off uploads, reduce your upload slots to zero.” Id.
Such circumstances are consonant with a finding of distribution. Although we have yet
to analyze distribution with respect to 18 U.S.C. § 2252(a)(2) in detail, our sister circuits have
typically adopted some version of the test applied by the Ninth Circuit: “Following the First,
Eighth, and Tenth Circuits, we hold that the evidence is sufficient to support a conviction for
distribution under 18 U.S.C. § 2252(a)(2) when it shows that the defendant maintained child
pornography in a shared folder, knew that doing so would allow others to download it, and
another person actually downloaded it.” United States v. Budziak, 697 F.3d 1105, 1109 (9th Cir.
2012); see United States v. Husmann, 765 F.3d 169, 174 (3d Cir. 2014) (citing Budziak). Here,
Pirosko admits that he maintained child pornography in a shared folder. The screenshot and the
report both demonstrate that he knew (or should have known) that others would have been able
to download from this shared folder. And another person—Officer Sexton—was in fact able to
download from Pirosko’s shared folder. Whether the government used its software to
manipulate Pirosko’s upload speed is therefore irrelevant.
In a related context, we have held that the “knowing use of LimeWire [a file-sharing
program similar to LimeZilla] . . . is sufficient to trigger [U.S.S.G.] § 2G2.2(b)(3)(F)’s two-level
enhancement” for distribution of child pornography. United States v. Conner, 521 F. App’x 493,
500 (6th Cir. 2013). “[T]he purpose of a file sharing program is to share, in other words, to
distribute, and knowing use of such a program qualifies as conduct that involve[s] . . .
distribution.” Id. (internal quotation marks omitted); see also United States v. Bolton, 669 F.3d
780, 782–83 (6th Cir. 2012) (discussing with approval decisions by other courts “to hold that the
government may prove distribution [under the Guidelines] merely by showing that the defendant
No. 14-3402 United States v. Pirosko Page 12
knowingly used a peer-to-peer file-sharing program to download child pornography”). We
discussed in Conner the Eighth Circuit’s decision in United States v. Durham, 618 F.3d 921 (8th
Cir. 2010), where that court, “[u]nique among courts that have addressed this issue,” “held that
the presumption that users of peer-to-peer software understand they are sharing files with others
can be rebutted by the defendant.” Conner, 521 F. App’x at 500. We declined to adopt this
analysis, yet did note that Conner could not “point to concrete evidence of ignorance in the
record that would raise the issue the Durham court confronted.” Id. at 501 (internal quotation
marks omitted). The facts here are even more egregious: Pirosko’s actions show a better-than-
average understanding of the LimeZilla program, as he changed his settings to minimize (but not
eliminate) the downloading of his files. He has also, like Conner, presented no concrete
evidence of ignorance nor contested the fact that officers like Sexton would have been able to
download shared files from his computer without manipulating his sharing settings.
To summarize, Pirosko cannot show materiality because a finding of distribution is not
necessary under 18 U.S.C. § 2252(a)(2). Even if it were necessary, Pirosko has admitted to
facts—that he maintained a shared folder, that he made files in this folder available for
download, and that some of these files were actually downloaded—that would make discovery of
the government’s software immaterial. The district court did not abuse its discretion in denying
his motion to compel.
B. Motion to Suppress—Unreliable and Unsupported Information
1. Standard of Review
We “review[] the district court’s denial of a Franks hearing under the same standard used
to review the district court’s denial of a motion to suppress: factual findings are reviewed for
clear error and conclusions of law are reviewed de novo.” United States v. Rose, 714 F.3d 362,
369–70 (6th Cir. 2013). “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.” Id. at 370 (citing Franks v. Delaware, 438 U.S. 154, 171–72 (1978)).
No. 14-3402 United States v. Pirosko Page 13
2. Analysis
With respect to his motion to suppress, Pirosko argues that “the district court blindly
accepted the government’s claims at face value without providing Pirosko any access or
opportunity to rebut those claims.” Appellant Br. at 44. Had Pirosko been handed a copy of the
government’s software, he might have been able to uncover evidence that the affiant (Officer
Sexton) “knowingly and intentionally, or with reckless disregard for the truth, included a false
statement or material omission in the affidavit.” Rose, 714 F.3d at 370. Pirosko then discusses
whether the evidence supporting probable cause for his warrant would pass muster under
Daubert—a standard used to evaluate admissibility of expert evidence at trial.
These arguments are meritless. Sexton’s affidavit contained more than ten pages of
statements detailing his experience and qualifications, the software he used, and the files he was
able to download from Pirosko’s computer. Pirosko has not pointed to a single misstatement in
this affidavit, a specific prerequisite for obtaining a Franks hearing. His allegation that he might
have been able to point to a misstatement if he were allowed to examine the government’s
software is the very sort of speculative claim that district courts are not supposed to hear.
Moreover, Pirosko does not dispute that he was a guest at each of the hotels where he used the
local wireless network to access child pornography, which would have, standing alone, been
sufficient to find probable cause. Finally, it is unclear what relationship Pirosko wants us to
draw between Daubert and Franks. Daubert is about expert evidence at trial, a right that Pirosko
forfeited by pleading guilty. Franks is about whether a defendant has made allegations sufficient
to merit a hearing regarding the validity of a search warrant affidavit. These cases have little to
do with one another; certainly, we have never held that a search warrant affidavit must always be
supported by evidence admissible under Daubert.
C. Motion to Suppress—Unconstitutional Warrantless Tracking
1. Standard of Review
We have already discussed the applicable standard of review for motions to suppress. In
addition, the government contends that this particular claim is barred because of the appeal-
waiver provision within Pirosko’s plea agreement. We “review[] the question of whether a
No. 14-3402 United States v. Pirosko Page 14
defendant waived his right to appeal his sentence in a valid plea agreement de novo.” United
States v. Smith, 344 F.3d 479, 483 (6th Cir. 2003).
2. Analysis
a. Appeal Waiver
In United States v. Woosley, 361 F.3d 924, 928 (6th Cir. 2004), we “decline[d] to
consider Woosley’s additional contention that the district court erred in denying his motion for a
Franks hearing, because his conditional plea only reserved the right to appeal the district court’s
ruling—entered September 10, 2002—denying his motion to suppress.” In reaching this
decision, we noted that “Woosley’s motion for a Franks hearing was not part of his motion to
suppress, and it was not disposed of in the district court’s September 10, 2002, order.” Id.
“Accordingly, Woosley may not appeal the district court’s adverse ruling on his motion for a
Franks hearing, as he did not reserve his right to appeal that issue.” Id. We have, in an
unpublished decision, since extended Woosley to apply to a situation nearly identical to the one
in this case. In United States v. Vanderweele, 545 F. App’x 465, 468 (6th Cir. 2013), we
observed that “Vanderweele’s plea only ‘reserves the right . . . to seek review of the U.S. District
Court’s denial of his motion to suppress evidence.’” “This language,” we noted, “preserves only
the arguments he made below.” Id. In his motion to suppress, Vanderweele made three
arguments. On appeal, he tried to make a fourth: that he was illegally detained. Id. at 469. We
held that he had “waived his right” to make this argument. Id.
Woolsey and Vanderweele provide a clear answer to the case at hand. The pertinent
provision in Pirosko’s plea agreement states that he “expressly and voluntarily waives [his]
rights [to appeal], except,” with respect to “(b) this Court’s denial of [his] motion to suppress (R.
34).” R. 45 (Plea Agreement at 5) (Page ID #353). Pirosko’s motion to suppress did not argue
that the government engaged in unconstitutional warrantless tracking—it presented no such legal
argument nor did it cite any of the supporting cases, like United States v. Jones, 132 S. Ct. 945
(2012), to which Pirosko now refers in his brief.
Pirosko alternatively argues that the district court failed to comply with Federal Rule of
Criminal Procedure 11(b)(2), which requires the court to “Ensur[e] That a Plea Is Voluntary.”
No. 14-3402 United States v. Pirosko Page 15
Fed. R. Crim. P. 11(b)(2). This provision states that, “[b]efore accepting a plea of guilty or nolo
contendere, the court must address the defendant personally in open court and determine that the
plea is voluntary and did not result from force, threats, or promises (other than promises in a plea
agreement).” Id. Pirosko contends that he did not, during his plea colloquy, “directly answer[]
the district court’s question regarding [whether he had received] any threats or force.” Appellant
Reply Br. at 7. This argument is disingenuous. The plea colloquy transcript reads as follows:
THE COURT: Has anyone made any threats or promises, other than what’s set
forth in this plea agreement, to either force or compel you to enter a plea of guilt
this morning?
MR. WARNER: Do you want me to answer that question for you? . . . [W]e
discussed this on Friday at length about whether or not there are threats, and there
certainly has been negotiations. This has been adversarial between Mr. Pirosko,
so I mean, he feels that he is in a spot where there has been, certainly, you know,
if you do A, B will happen.
If you do B, C will happen, and that make[s] him feels threatened, but I explained
to him that that’s not what [the] Court means when it says threats [sic]. What it
means threats, it means me telling him if you don’t do this, I am going—you
know, something off the record, and that is my impression of what threats means.
THE COURT: Okay. Mr. Pirosko, so that we are all on the same page, I
understand that there is no good choice. It is pick your poison, and that is what
Mr. Warner is talking about; that it is just a bad situation that you are confronted
with, and no choice of yours is going to be satisfactory to you. I understand that.
But what I am asking you is whether your plea is going to be voluntary, in other
words, your own decision to do this based upon all the information that you have.
That’s really what I am asking.
THE DEFENDANT: Sir, I sinned, and I am going to plead guilty, yes, sir.
THE COURT: Okay. And will you be doing this voluntarily?
THE DEFENDANT: Yes, sir.
R. 59 (Plea Hr’g Tr. at 6–7) (Page ID #726–27). Pirosko did not raise a Rule 11 objection at his
plea hearing. His objection is therefore reviewed for plain error, United States v. Murdock,
398 F.3d 491, 496 (6th Cir. 2005), a hurdle that it clearly cannot overcome.
b. Merits
Pirosko’s claim would also fail on the merits. It is true that we have recognized that
individuals have a reasonable expectation of privacy in data on non-shared folders on their
No. 14-3402 United States v. Pirosko Page 16
computer. Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001). But we have never extended this
reasoning to apply to files in a shared folder. See Conner, 521 F. App’x at 497 (“Public
exposure of information in this manner defeats an objectively reasonable expectation of privacy
under the Fourth Amendment.”); United States v. Stults, 575 F.3d 834, 842–43 (8th Cir. 2009)
(collecting cases). After all, files in a shared folder cannot, by definition, be considered files that
an individual expects to be kept private.
Pirosko’s reliance on United States v. Jones, 132 S. Ct. 945 (2012), is unavailing. Jones
held that attaching a GPS device on a suspect’s vehicle without his or her consent constituted a
search, in violation of the Fourth Amendment. See id. at 954. In reaching its decision, the
majority expressly declined to endorse the concurrence’s view that “relatively short-term
monitoring of a person’s movements on public streets is okay, but . . . longer term GPS
monitoring in investigations of most offenses is no good.” Id. (internal quotation marks omitted).
Pirosko asks that we adopt the concurrence’s theory nonetheless. That request flies directly in
the face of Supreme Court precedent. Moreover, his theory would, if taken seriously, give a free
pass to on-the-road downloaders of child pornography: i.e., under his theory, your rights are not
violated if you download from a single location (e.g., your home), but they are violated if you
travel across the country, using a hotel’s wireless network to download and upload files. We
decline to adopt this reading of Jones.
D. Procedural and Substantive Unreasonableness
1. Standard of Review
“We review challenges to the reasonableness of a sentence for abuse of discretion.”
United States v. Kamper, 748 F.3d 728, 739 (6th Cir. 2014). “Sentences must be both
procedurally and substantively reasonable.” Id. When reviewing a sentence for procedural
reasonableness, we must “ensure that the district court committed no significant procedural error,
such as failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence.” Gall v. United
States, 552 U.S. 38, 51 (2007). We review the district court’s legal interpretation of the
Guidelines de novo, United States v. Settle, 414 F.3d 629, 630 (6th Cir. 2005), but “accept
No. 14-3402 United States v. Pirosko Page 17
factual findings made by the district court at sentencing unless they are clearly erroneous,”
United States v. Phillips, 516 F.3d 479, 483 (6th Cir. 2008) (citations omitted).
“If the sentence is procedurally sound, we next evaluate whether it was substantively
reasonable.” Kamper, 748 F.3d at 739. “A reviewing court will find that a sentence is
substantively unreasonable ‘where the district court select[s] the sentence arbitrarily, bas[es] the
sentence on impermissible factors, fail[s] to consider pertinent § 3553(a) factors, or giv[es] an
unreasonable amount of weight to any pertinent factor.’” United States v. Tate, 516 F.3d 459,
469 (6th Cir. 2008) (quoting United States v. Ferguson, 456 F.3d 660, 664 (6th Cir. 2006)).
2. Analysis
a. Procedural Unreasonableness
i. Distribution Enhancement
The district court did not err in applying an enhancement for distribution, for the reasons
stated above in Part II.A.2.b.
ii. Pattern-of-Activity Enhancement
U.S.S.G. § 2G2.2(b)(5) provides for a five-level offense enhancement “[i]f the defendant
engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.” U.S.S.G.
§ 2G2.2(b)(5) (2013). The Commentary to this provision defines pattern of activity as “any
combination of two or more separate instances of the sexual abuse or sexual exploitation of a
minor by the defendant, whether or not the abuse or exploitation (A) occurred during the course
of the offense; (B) involved the same minor; or (C) resulted in a conviction for such conduct.”
Id. at cmt n.1. The district court identified three such prior incidents: Pirosko’s prior conviction
for sexual abuse of a child and letters submitted by Pirosko’s now-adult daughters detailing their
prior sexual abuse or exploitation.
Pirosko’s PSR goes into detail on his prior conviction, see PSR at ¶ 37, which the
government also discussed at sentencing, see, e.g., R. 60 (Sentencing Hr’g Tr. at 35–41) (Page
ID #784–90). Pirosko does not challenge the district court’s finding of sexual abuse or
exploitation on this point. Id. at 30 (Page ID #779).
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Both of Pirosko’s daughters submitted letters documenting Pirosko’s sexual abuse or
exploitation of them as minors, portions of which are reprinted in Pirosko’s PSR. PSR at ¶ 17.
In both letters, the daughters report sleeping in twin beds next to one another, and Pirosko
coming into their rooms at night to sexually exploit or abuse them. One of Pirosko’s daughters
concedes that she did not immediately remember the details of these events when first questioned
by investigators in 2003, in relation to Pirosko’s conviction in Germany. She writes, however,
that “[a] few weeks after [Pirosko] was arrested I began hav[ing] horrible nightmares about my
sister and I being molested as children.” Id. In addition to these letters, the probation officer
reported speaking to Pirosko’s ex-wife, the mother of Pirosko’s daughters. “She reported that
. . . [i]n addition to their own two daughters, she also suspected the defendant of molesting three
other children that she was aware of (one being the daughter of his second wife . . . ).” Id. at
¶ 46.
Pirosko challenges these allegations by submitting a letter from his mother and by
questioning the sufficiency of the evidence presented against him. R. 52-6 (Exh. F-1 Pirosko
Sentencing Mem. at 1–3) (Page ID #667–69). The letter from Pirosko’s mother, however, offers
little by way of support to Pirosko. In fact, the letter actually states, at various points, that
Pirosko’s mother “chose to believe the girls,” id. at 2 (Page ID #668), and that she “believe[s] the
girls are telling the truth a[s] they believe the truth to be,” id. at 3 (Page ID #669). She ends by
noting that the daughters’ account “may be their truth, but it may not have really happened.” Id.
(emphasis added). This is speculation—it does not provide any factual basis to vitiate the
accounts given by Pirosko’s daughters.
Pirosko’s sufficiency-of-the-evidence challenge also fails. Pirosko claims that it was
inappropriate for the court to base its finding on a set of out-of-court letters. We have considered
this sort of claim before. See United States v. Paull, 551 F.3d 516, 527 (6th Cir. 2009) (“The
district court’s reliance on Barry’s letter without live testimony from Barry is clearly permissible
under our law.”). Moreover, the letters provided by Pirosko’s daughters corroborate one another,
are consistent with the reports of Pirosko’s ex-wife, and are arguably also consistent with the
letter submitted by Pirosko’s mother. Pirosko is correct that the letter in Paull was somewhat
more specific than the letters at issue here. But Pirosko’s daughters both were young children
No. 14-3402 United States v. Pirosko Page 19
when he sexually abused or exploited them, a fact that might have made specific recall more
difficult. In addition, the accompanying evidence—the accounts given by Pirosko’s ex-wife and
Pirosko’s mother—lend further support to the district court’s finding in this case. The district
court did not clearly err in considering these circumstances sufficient evidence for a finding of
past sexual abuse or exploitation.
iii. Number-of-Images Enhancement
Finally, the district court awarded a five-level enhancement because it found that the
offense conduct involved 600 or more images. U.S.S.G. § 2G2.2(b)(7)(D). Pirosko concedes
that his conduct involved at least 234 images. The only question is whether the district court
clearly erred in counting additional images found on a USB device seized during the search of
his hotel room.
At sentencing, the district court noted that, with respect to the USB device, “the bottom
line is, they had to get on those thumb drives somehow, and again, it is not by accident. That’s a
given. Mr. Pirosko would have had to put those on there.” R. 60 (Sentencing Hr’g Tr. at 18–19)
(Page ID #767–68). This finding was not clearly erroneous. It is common knowledge that a
USB drive functions as an external storage device. These drives store files when an individual
places those files onto the device. These drives do not come pre-loaded with child pornography.
Pirosko misreads our decision in United States v. Keefer (Keefer II), 490 F. App’x 797
(6th Cir. 2012). In that case, we upheld the district court’s decision to apply a five-level
enhancement. We had originally remanded the case for resentencing, holding that “the evidence
at [Keefer’s initial] sentencing did not show knowledge of all the images” on his computer. Id.
at 798 (discussing United States v. Keefer (Keefer I), 405 F. App’x 955, 959 (6th Cir. 2010)).
We noted that it was possible for Keefer not to have had knowledge of images of child
pornography on his computer’s unallocated space. In Keefer II, however, the government
presented testimony from an agent that “addressed our prior concerns about the general lack of
an explanation regarding how images appear in a computer’s unallocated space.” Id. at 800.
The agent explained that, although it was possible for images to appear on a computer’s
unallocated space via accidental viewing, the data on Keefer’s computer were not consistent with
such an account. Id. at 800–01. Keefer failed to offer any sort of explanation in response. Id. at
No. 14-3402 United States v. Pirosko Page 20
801. Keefer thus supports the government’s position, not Pirosko’s. Moreover, contrary to
Pirosko’s assertion that “[t]he government presented no evidence at sentencing to prove the USB
device’s deleted files had ever been accessed or viewed by Pirosko,” Appellant Br. at 60, the
government’s sentencing memorandum contained an exhibit documenting when various files on
the USB device had been created, modified, and accessed. See, e.g., R. 53-2 (Exh. B to Gov’t
Sentencing Mem. at 7) (Page ID #706). The district court did not clearly err in awarding a five-
level enhancement for images stored on Pirosko’s USB device.
b. Substantive Unreasonableness
Finally, Pirosko contests the substantive reasonableness of his sentence. Pirosko received
the statutory maximum of 240 months of imprisonment, a sentence actually below his calculated
Guidelines range. Sentences within a defendant’s Guidelines range are presumptively
substantively reasonable, a presumption that naturally extends to sentences below the Guidelines
range. See United States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008).
Pirosko has failed to overcome this presumption. The record indicates that the district
court sufficiently discussed the various 18 U.S.C. § 3553(a) factors, including the nature and
circumstances of his conduct, Pirosko’s history and characteristics, the need for the sentence,
sentencing disparities, and the need for restitution. We have already concluded that the district
court properly calculated Pirosko’s Guidelines range. It did not abuse its discretion in according
Pirosko the statutory maximum sentence. Pirosko’s remaining arguments, regarding the
harshness of the Guidelines with respect to child pornography offenders, are likewise unavailing.
We have heard these arguments before. See United States v. Bistline, 665 F.3d 758, 762–64 (6th
Cir. 2012); United States v. Hill, 462 F. App’x 586, 588 (6th Cir. 2012); United States v.
Dattilio, 442 F. App’x 187, 194 (6th Cir. 2011). We cannot, in the context of these cases, hold
that the district court abused its discretion here.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Pirosko’s conviction and sentence.