United States v. Joseph Pirosko

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.