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United States v. Pirosko

United States Court of Appeals, Sixth Circuit

May 21, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JOSEPH PIROSKO, Defendant-Appellant

Argued: April 21, 2015.

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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:

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.

Before: SILER, MOORE, and STRANCH, Circuit Judges.

OPINION

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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 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 observed that there were three different Globally Unique Identifier (GUID) numbers

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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.

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

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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 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 ...


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