United States v. Paul Pavulak , 700 F.3d 651 ( 2012 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 11-3863
_____________
UNITED STATES OF AMERICA
v.
PAUL E. PAVULAK
Appellant
_____________
On Appeal from the United States District Court
for the District of Delaware
District Court No. 1-09-cr-00043-001
District Judge: The Honorable Sue L. Robinson
Argued September 13, 2012
Before: SMITH, and CHAGARES, Circuit Judges
and ROSENTHAL, District Judge

The Honorable Lee H. Rosenthal, United States District
1
(Filed: November 21, 2012)
Jack A. Meyerson
Matthew L. Miller [ARGUED]
Meyerson & O‘Neill
1700 Market Street
Suite 3025
Philadelphia, PA 19103
Counsel for Appellant
Bonnie L. Kane
Andrew M. McCormick
United States Department of Justice
Criminal Division, Public Integrity Section
1400 New York Avenue, N.W.
Washington, DC 20530
Edward J. McAndrew [ARGUED]
Office of United States Attorney
1007 North Orange Street, Suite 700
P.O. Box 2046
Wilmington, DE 19899
Counsel for Appellee
Judge for the United States District Court for the
Southern District of Texas, sitting by designation.
2
________________
OPINION
________________
SMITH, Circuit Judge.
The Delaware State Police obtained search
warrants for Paul Pavulak‘s email account and workplace
after receiving information that he was viewing child
pornography on his workplace computers. The evidence
that was seized confirmed Pavulak‘s involvement in child
pornography, and a jury subsequently convicted him of
possessing and attempting to produce child pornography,
attempting to entice a minor, and committing crimes
related to his status as a sex offender. The District Court
sentenced him to life imprisonment on the attempted-
production conviction and to 120 months‘ imprisonment
on the remaining counts.
Pavulak now contends that the District Court
should have suppressed the evidence obtained pursuant to
the warrants. He argues that the magistrate lacked
probable cause to issue the search warrants. Those
search warrants were supported by an affidavit that
pointed to Pavulak‘s prior child-molestation convictions
and labeled the images, which had been reported by
informants, simply as ―child pornography.‖ No further
details concerning the images‘ content appeared in the
affidavit. We conclude that the affidavit was insufficient
3
to establish probable cause for child pornography.
However, because the officers reasonably relied on the
warrants in good faith, we agree that the District Court
properly denied suppression. Pavulak‘s remaining
challenges to his convictions and life sentence are
meritless. We will therefore affirm his convictions and
sentence.
I.
A. Factual Background
This is not Paul Pavulak‘s first encounter with the
criminal law. He has twice pled guilty to unlawful sexual
contact in the second degree under Delaware law—once
in June 1998 and again in April 2005. The first
conviction was for molesting the eleven-year-old
daughter of his live-in girlfriend from September 1997
through January 1998. As a result, the Delaware
Superior Court sentenced Pavulak to four years‘
probation. While on probation for that conviction during
the summer of 1999, Pavulak repeated similar conduct
with the nine-year-old daughter of his new girlfriend,
resulting in a second conviction in 2005 and two years in
prison.1
These state convictions required Pavulak to
1
The record does not identify the reason for the delay
between Pavulak‘s conduct and the second conviction.
4
register as a sex offender and to keep his residential,
work, and email addresses up to date with the Delaware
State Police. After being released from prison on July 1,
2008, Pavulak purported to do exactly that. He informed
the Delaware State Police that he was unemployed and
staying at the Fairview Inn in Wilmington, Delaware.
Throughout the remainder of the year, Pavulak
maintained this account of unemployment and hotel
living.
But the Delaware State Police soon discovered that
Pavulak was not telling the whole story. In October
2008, Delaware State Police Detective Robert Jones
received a hotline call from Erica Ballard. Ballard
informed the police that her husband Curtis Mack, an
employee at Concrete Technologies, Inc. (―CTI‖), had
observed Pavulak working and living part-time at the
CTI office since his release, information that his sex-
offender registration did not include. Ballard also told
the police that Pavulak was planning a trip to the
Philippines where he intended to meet women. Detective
Jones followed up with Mack, who not only confirmed
his wife‘s tip but also provided additional details.
According to Mack, Pavulak was using an unregistered
Yahoo! email address (Pavy224@yahoo.com), was
accessing sexually suggestive images of children on
computers at the CTI office, and had scheduled a month-
long trip to the Philippines between December 2008 and
mid-January 2009. Detective Jones also contacted
5
another CTI employee, Jahdel Riggs, who confirmed all
of Mack‘s information except Pavulak‘s email address.
Through investigation, the Delaware State Police
successfully corroborated some of the information
provided by Mack and Riggs. As confirmed by federal
agents and Pavulak‘s updated Delaware Sex Offender
Registry address, Pavulak was in the Philippines from
early December 2008 to January 2009. By subpoenaing
Yahoo!, the police also discovered that the
Pavy224@yahoo.com email account was created by a
―Mr. Paul Pavy,‖ was accessed from the CTI office on
December 8, 2008, and was accessed from the
Philippines from December 10, 2008, through January 6,
2009. The police further verified the existence and
location of the CTI office, its ownership by Pavulak‘s
adult children, and his Delaware state convictions—
leading the police to obtain an arrest warrant for
Pavulak‘s failure to register his employment at CTI.
Armed with the informants‘ information and the
results of their investigation, Detective Nancy Skubik of
the Delaware State Police Child Predator Task Force
applied to the Delaware Superior Court for New Castle
County for warrants to search the CTI office and the
Pavy224@yahoo.com account for child pornography. In
her probable-cause affidavit2 for both warrant
2
The affidavits for both search-warrant applications are
identical in all aspects relating to the probable-cause
6
applications, Detective Skubik described the two tips,
Pavulak‘s prior Delaware convictions from 1998 and
2005, and the information corroborated by her
investigation. The affidavit relayed that Riggs had seen
Pavulak ―viewing child pornography‖ of females
―between 16 and 18 years old‖ and Mack had seen
―images of females between the ages of 12 to 15 years on
Pavulak‘s computer‖ that had been sent to Pavulak via
email. But the affidavit neither defined what was meant
by the label ―child pornography‖ nor provided any
further details about the images‘ content.
Based on that affidavit, the Delaware Superior
Court issued search warrants on January 13, 2009, for the
CTI office and Yahoo! account. Early in the morning of
January 19, Delaware State Police officers, including
Detectives Jones and Skubik, executed the search warrant
at CTI‘s office. The police arrested Pavulak, the only
person present in the CTI office, based on outstanding
warrants for failure to register his employment at CTI
and his Yahoo! email address. After receiving his
Miranda rights,3 Pavulak admitted that he worked for
CTI and used the Pavy224@yahoo.com email address
while in the Philippines.
During the search, officers seized two computers.
determination, so we refer to them as though they were a
single affidavit.
3
See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
7
The first, a Hewlett-Packard laptop, was found in a rear
office where Pavulak appeared to be living; a bed, his
clothing, and toiletries were in the room. The laptop was
locked by a single password-protected Windows user
account. The second computer, a Hewlett-Packard
desktop, was recovered from the receptionist area. Each
computer contained thousands of images of child
pornography.
Yet the search uncovered more than just the
sought-after images of child pornography. Evidence
recovered from the computers revealed that, in August
2008, Pavulak used his Yahoo! username ―Pavy224‖ to
create a profile on www.cherryblossoms.com, a website
allegedly used by sex tourists for soliciting prostitutes in
the Philippines. This website led him to Ara Duran, a
twenty-two-year-old Philippine woman and mother of
two-year-old Jane Doe.4 Emails that Pavulak sent Duran
showed his immediate interest in the age and sex of
Duran‘s child. Pavulak told Duran (via email) that he
was looking for a wife with an ―aggressive‖ and ―very
active open sex desire‖5 similar to his own and who was
willing to ―experiment with different possibilities about
sex.‖ On October 1, Duran responded, believing them to
4
Like the parties, we refer to the daughter as ―Jane Doe‖
to protect her privacy.
5
Any typographical errors in text messages or chat logs
appear in Pavulak‘s original communications.
8
be a ―good match‖ and indicating that she ―bought more
panties‖ for herself and her daughter. Pavulak looked
forward to ―dressing‖ Duran and her daughter. The two
made plans to meet around Christmas during Pavulak‘s
trip to the Philippines. He reserved a hotel room for their
meeting, preferring the ―matrimonial room‖ as his first
choice because it had a ―king size bed‖ in which the three
of them would ―fit fine.‖ While awaiting their
rendezvous, Pavulak ―reall[y] want[ed] to see pictures‖
of Duran and Jane Doe—a request that Duran obliged.
While Pavulak was in the Philippines, he visited
several women he met online and spent time with Duran
and Jane Doe. He took photographs of Duran and Jane
Doe, some of which depicted Duran or Pavulak nude or
engaging in sexual activity. He also recorded videos of
his sexual activity with Duran, one of which portrays
Duran performing oral sex on Pavulak. That video, as
Pavulak tells her, ―will be [Jane Doe‘s] training video‖ so
Duran can ―show her how to [perform oral sex].‖
During Pavulak‘s return to the United States, he
sent Duran several text messages about including Jane
Doe in their sexual activities. He ―hope[d]‖ that Jane
Doe would ―like it too‖; asked Duran to ―teach her
everything‖; indicated he would perform oral sex on Jane
Doe and instructed Duran to do so in the interim ―so she
likes it‖;6 and wondered if Duran‘s ―really good‖
6
This text message remained in Pavulak‘s unsent
9
instruction of Jane Doe would allow Jane Doe to perform
oral sex on Pavulak ―next December.‖ Pavulak believed
that Duran could ―make it all work out for the three of
[them]‖ to have a ―happy sex life.‖ Eager to see them
again soon, Pavulak scheduled an online webcam chat
with Duran for the morning of January 18.
That morning, Pavulak chatted with Duran using
the laptop from the CTI office. They discussed Jane
Doe‘s involvement in their sexual activities. We regret
the need to recite in detail several of these ―chats,‖ but
the content is necessary to some of the conclusions we
reach in our discussion below.
Duran: I showed [Jane Doe] how to
masturbate hon
***
Pavulak: does she try to do it
Pavulak: if u play with her pussy a lot
then by the time i get there she
will want me to play with her
Duran: i caught her many times hon
always playing with her pussy
Pavulak: i wish she would just spread her
message folder.
10
legs and let me lick her
Duran: sometimes when I catch her
playing her pussy, I spank her
Pavulak: why
Pavulak: u should encourage her
Duran: shes so young playing with it
Pavulak: n o she is not
Duran: I think 5 will be better
Duran: 5 years old
Pavulak: she plays with it because it
feels good to her
Pavulak: [t]here is no age
Pavulak: on when
Duran: her pussy now is very red
Pavulak: look up on the computer
―young children masturbation‖
Pavulak: and u will find articcles about it
Duran: ok i will look up in the
computer tomorrow hon
11
When Pavulak expressed ―hope‖ that he could see Jane
Doe use a vibrator, Duran assured him that he would.
Pavulak also hoped to engage in sexual activity with Jane
Doe:
Pavulak: u think i can finger fuck her at age 5
Duran: well..just try hon
Duran: just use ur small finger hon
Duran: i think it will be fit to her pussy
Pavulak: hope she likes to suck cock hon
Duran: at age 8 she will know if ur cock taste
good or not
***
Pavulak: im going to shoooot cum in her mouth
at age three when i come back there
Duran: hehehehe
Pavulak: u just tell her to suck it out of me hon
***
Pavulak: u just keep showing her the movie
how u suck me
12
Pavulak: so she will know
He continued to insist that Duran show the training video
to Jane Doe and ―tell [Jane Doe] that it feels so good to‖
perform oral sex. Pavulak then tried to get Duran to
display her and Jane Doe‘s vaginas via the webcam:
Pavulak: take ur panties off hon and show me
ur pussy
Duran: i only show my pussy to u hon
Pavulak: well im waiting hon
Duran: not now hon
Duran: tuesday
Pavulak: why
Pavulak: hehe
Pavulak: no now
Duran: i try
Pavulak: and [Jane Doe‘s] too
***
Pavulak: nice thanks
Pavulak: cum for me
13
Pavulak: hehe
Pavulak: now [Jane Doe‘s]
Duran: hehee
Duran: diapers on
Pavulak: oh
Duran: u cant see [Jane Doe‘s] pussy
Pavulak: well maybe sometime soon
Duran: yup
Duran: morning u can see her naked hon
Pavulak: ok
The Delaware State Police recovered these chat
logs between Pavulak and Duran from the laptop
computer. In addition, the police discovered that twenty-
nine of the child pornography images and forty-two
images of Pavulak and Duran were accessed and edited
using Windows Photo Gallery between September 13,
2007, and November 22, 2008.
B. Procedural Background
With the discovery of those chat logs in addition to
the child-pornography images, the United States took
14
over Pavulak‘s prosecution. In April 2009, the United
States indicted Pavulak on five counts in the United
States District Court for the District of Delaware: (1)
failing to update his registration as a sex offender in
violation of 18 U.S.C. § 2250(a); (2) possessing child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B);
(3) attempting to produce child pornography in violation
of 18 U.S.C. § 2251(a) and (e); (4) attempting to coerce
and entice a minor in violation of 18 U.S.C. § 2422(b);
and (5) committing a felony offense involving a minor
while registered as a sex offender in violation of 18
U.S.C. § 2260A.
Before trial, Pavulak moved to suppress the
evidence seized from the CTI office and his Yahoo!
account. He made two arguments: first, that the search
warrants were not based on probable cause because they
did not provide the magistrate7 with any details about
what the alleged child-pornography images depicted, and
second, that he was entitled to a hearing under Franks v.
Delaware, 438 U.S. 154, 155–56 (1978), to challenge the
veracity of several facts alleged in the probable-cause
affidavit. The District Court denied his motion. The
Court concluded that there was probable cause, and even
7
We use the term ―magistrate‖ generally, referring to any
member of the state or federal judiciary authorized to
issue warrants (though in this case, a state issuing
authority).
15
if there were not, the officers reasonably relied on the
warrants in good faith. The Court also denied Pavulak‘s
request for a Franks hearing after determining that
Pavulak did not make a substantial preliminary showing
that any misstatements or omissions affected the
probable-cause analysis.
Pavulak proceeded to trial in September 2010.
After a six-day trial, the jury found him guilty on all
counts. In January 2011, Pavulak moved for a judgment
of acquittal on all counts under Federal Rule of Criminal
Procedure 29 based on insufficient evidence. In addition,
Pavulak argued that Mack‘s and Riggs‘s trial testimony
was inconsistent with the information they provided for
the search-warrant affidavit. And this inconsistency,
according to Pavulak, justified a post-trial Franks hearing
to challenge the veracity of Mack‘s and Riggs‘s tips in
the affidavit, leaving the search warrants without
probable cause and ultimately entitling Pavulak to a new
trial under Rule 33. The District Court denied these
motions.
Pavulak‘s pre-sentence report (PSR) gave rise to
several objections. As to Pavulak‘s attempted-production
conviction, the Probation Office advised that his prior
Delaware convictions subjected him to mandatory life
imprisonment under 18 U.S.C. § 3559(e) as a repeat sex
offender. Pavulak objected to this recommendation,
arguing that his maximum statutory sentence was fifty
years and that Apprendi v. New Jersey, 530 U.S. 466, 490
16
(2000), thus required a jury to determine whether his
prior Delaware convictions could justify any increase
beyond that fifty-year maximum. The District Court
rejected that argument. Because Pavulak‘s maximum
sentence was life imprisonment, the Court reasoned that
Apprendi did not apply. Consequently, the District Court
found that Pavulak‘s prior convictions triggered
mandatory life imprisonment under § 3559(e) for his
attempted-production conviction and sentenced him
accordingly. As to his other counts, the District Court
sentenced Pavulak to a consecutive term of 120 months‘
imprisonment for committing a felony offense involving
a minor while registered as a sex offender and 120
months‘ imprisonment for the remaining counts to run
concurrently with each other and the attempted-
production count.
Pavulak timely appealed both his convictions and
life sentence.8
II.
According to Pavulak, the affidavit submitted in
support of the search-warrant applications did not
establish probable cause because it lacked any details
about what the alleged images of child pornography
8
The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction over Pavulak‘s appeal
under 28 U.S.C. § 1291.
17
depicted. On appeal from the denial of a motion to
suppress, we review a district court‘s factual findings for
clear error, and we exercise de novo review over its
application of the law to those factual findings. United
States v. Coles, 437 F.3d 361, 365 (3d Cir. 2006). Here,
we cannot say that the affidavit provided a ―‗substantial
basis‘ for the magistrate‘s conclusion that there was a
‗fair probability‘‖ of evidence of child pornography in
the CTI office and Pavulak‘s Yahoo! account at the time
of the search. United States v. Vosburgh, 602 F.3d 512,
526 (3d Cir. 2010) (quoting Illinois v. Gates, 462 U.S.
213, 238 (1983)). But suppression is ultimately
inappropriate because the officers relied on the warrants
in good faith.
When faced with a warrant application to search
for child pornography, a magistrate must be able to
independently evaluate whether the contents of the
alleged images meet the legal definition of child
pornography. New York v. P.J. Video, 475 U.S. 868,
874 n.5 (1986). That can be accomplished in one of three
ways: (1) the magistrate can personally view the images;
(2) the search-warrant affidavit can provide a
―sufficiently detailed description‖ of the images; or (3)
the search-warrant application can provide some other
facts that tie the images‘ contents to child pornography.
United States v. Miknevich, 638 F.3d 178, 183 (3d Cir.
2011); see also Vosburgh, 602 F.3d at 527 (holding that
probable cause supported a warrant where the affidavit
18
tied the images of child pornography to the defendant
using his IP address, a ―fairly unique identifier[]‖).
In this case, the search-warrant applications
alleged that Pavulak was ―dealing in child pornography‖
in violation of 11 Del. Code § 1109. That statute
prohibits transmitting, receiving, and possessing
depictions of ―a child engaging in a prohibited sexual act
or the simulation of such an act.‖ 11 Del. Code § 1109.
A ―prohibited sexual act‖ includes a wide range of sexual
activity, including ―nudity . . . depicted for the purpose of
sexual gratification of any individual‖ who may view the
depiction as well as ―lascivious exhibition of the genitals
or pubic area of any child.‖ Id. § 1103(e).
To show that evidence of Pavulak‘s dealing in
child pornography existed at the CTI office and in his
Yahoo! account, the affidavit relied on three pieces of
information. First, Pavulak had two prior convictions for
child molestation. Second, the affidavit stated that Mack
and Riggs had seen Pavulak ―viewing child
pornography‖ of females between twelve and eighteen
years old, though the affidavit did not provide any further
details about what the images depicted. Third, officers
were able to corroborate Pavulak‘s ownership of the
Yahoo! email account, his trip to the Philippines, and his
presence at the CTI office.
Despite our ―great deference‖ to the magistrate‘s
determination, Gates, 462 U.S. at 236, these pieces of
19
information do not establish probable cause to believe
that the images contained child pornography. The label
―child pornography,‖ without more, does not present any
facts from which the magistrate could discern a ―fair
probability‖ that what is depicted in the images meets the
statutory definition of child pornography and complies
with constitutional limits. The affidavit does not
describe, for instance, whether the minors depicted in the
images were nude or clothed or whether they were
engaged in any ―prohibited sexual act‖ as defined by
Delaware law. As we said in Miknevich, that kind of
―insufficiently detailed or conclusory description‖ of the
images is not enough. 638 F.3d at 183. Presented with
just the label ―child pornography,‖ the most the
magistrate could infer was that the affiant concluded that
the images constitute child pornography.
The problem with that inference is that identifying
images as child pornography ―will almost always
involve, to some degree, a subjective and conclusory
determination on the part of the viewer,‖ and such
―inherent subjectivity is precisely why the determination
should be made by a judge,‖ not the affiant. United
States v. Brunette, 256 F.3d 14, 18 (1st Cir. 2001).
Otherwise, ―we might indeed transform the [magistrate]
into little more than the cliché ‗rubber stamp.‘‖ Doe v.
Goody, 361 F.3d 232, 243 (3d Cir. 2004). Other circuits
agree that a probable-cause affidavit must contain more
than the affiant‘s belief that an image qualifies as child
20
pornography. United States v. Doyle, 650 F.3d 460, 474
(4th Cir. 2011) (holding that there was no probable cause
where the affidavit did not provide ―anything more than a
description of the photographs as depicting ―nude
children‖); Brunette, 256 F.3d at 18 (holding that there
was no probable cause where an affidavit involved an
affiant‘s ―legal conclusion parroting the statutory
definition‖ of child pornography ―absent any descriptive
support and without an independent review of the
images‖ by a magistrate).
The government cites several cases for the
proposition that the label ―child pornography,‖ by itself,
is sufficient. All but one of those cases, however, fall far
short of supporting the government‘s argument.
Although the affidavits in Miknevich and Vosburgh did
not describe the contents of the images, the
circumstances of those cases required no such
description. In Miknevich, the affidavit identified the
contents of the computer file as child pornography
through a sexually explicit and highly descriptive file
name referring to the ages of the children and implying
that they were masturbating. 638 F.3d at 184. The file‘s
―digital fingerprint‖ also marked it as one known to
contain child pornography. Id. at 185. We upheld that
warrant, reasoning that the file name was ―explicit and
detailed enough so as to permit a reasonable inference of
what the file is likely to depict.‖ Id. No such indication
is present in this case.
21
Vosburgh involved a defendant who tried to
download a link to a video described on the website as
depicting a four-year-old performing oral sex—a video
that contained only gibberish because it had been planted
by law enforcement. 602 F.3d at 517. The officer
tracked the download attempt to the defendant‘s
computer and obtained a warrant to search for child
pornography. Id. We upheld that warrant because the
defendant‘s deliberate attempt to download child
pornography established a fair probability that he
possessed other images of child pornography. Id. The
probable-cause determination there, unlike this case, was
not based on the affiant‘s knowledge that the defendant
possessed child pornography, so there were no illicit
depictions to describe in the affidavit. Id. So, too, in
United States v. Simpson, 152 F.3d 1241 (10th Cir.
1998). There, the affidavit described the defendant‘s
agreement to ―send a computer diskette with numerous
scenes of prepubescent children under the age of
thirteen‖ to an undercover officer ―in exchange for a
videotape containing scenes of child pornography.‖ Id.at 1246–47. Finally, the government‘s reliance on
United States v. Grosenheider, 200 F.3d 321 (5th Cir.
2000), and United States v. Budd, 549 F.3d 1140 (7th Cir.
2008), is unhelpful. Those cases do not specify what
information was presented in the affidavits.
That leaves the government‘s position dependent
entirely on United States v. Grant, 490 F.3d 627 (8th Cir.
22
2007). In Grant, the Eighth Circuit upheld a warrant to
search for child pornography based on an officer‘s
conclusion that images observed by an informant met the
statutory definition of child pornography. Id. at 630, 632.
We decline to adopt the Eighth Circuit‘s approach.
Magistrates—not affiants or officers—bear the
responsibility of determining whether there exists a fair
probability that the sought-after images meet the
statutory and constitutional definitions of child
pornography. Cf. P.J. Video, 475 U.S. at 876–77
(reviewing the search-warrant affidavit to ensure that the
magistrate ―was given more than enough information to
conclude that there was a fair probability that the movies
satisfied the first and third elements of the statutory
definition‖ of obscenity (emphasis added)). In any event,
we believe the Supreme Court‘s decision in P.J. Video,
together with our own precedent in Vosburgh and
Miknevich, compel us to require more than a conclusion
by an affiant that the sought-after images constitute child
pornography.
Nor does combining the label ―child pornography‖
with the rest of the information in the affidavit produce
something greater than the sum of its parts. Pavulak‘s
prior child-molestation convictions are ―not sufficient to
establish—or even to hint at—probable cause as to the
wholly separate crime of possessing child pornography‖
absent any allegation of a correlation between the two
types of crimes. Virgin Islands v. John, 654 F.3d 412,
23
419 (3d Cir. 2011). That correlation between the two
crimes is the missing linchpin that differentiates this case
from the Eighth Circuit‘s decision in United States v.
Colbert, 605 F.3d 573, 577–78 (8th Cir. 2010). There,
the defendant was ―pushing a five-year-old girl (whom
he did not know) on a playground swingset while talking
to her ‗about movies‘ and videos the man had at his
home.‘‖ John, 654 F.3d at 422 (describing Colbert, 605
F.3d at 575). Based on that information, officers
obtained a warrant to search his home for child
pornography. Colbert, 605 F.3d at 575–76. The Eighth
Circuit upheld the warrant, concluding that the
combination of the defendant‘s ―specific desire to watch
movies at home with an unrelated five-year-old girl‖ and
his ―contemporaneous attempt to entice‖ her established
probable cause to believe those movies contained child
pornography. Id. By contrast, Detective Skubik‘s
affidavit did not link Pavulak‘s prior acts of child
molestation to the sought-after images. See John, 654
F.3d at 422 (distinguishing Colbert on this basis). His
criminal history thus does not provide any additional
reason to believe that these specific images met the legal
definition of child pornography under Delaware law.
Likewise, the successful corroboration of certain
details about Pavulak‘s other activities does not save the
warrants. To be sure, a ―‗tip conveying a
contemporaneous observation of criminal activity whose
innocent details are corroborated‘‖ can establish probable
24
cause of that criminal activity. United States v. Torres,
534 F.3d 207, 211 (3d Cir. 2008) (quoting United States
v. Wheat, 278 F.3d 722, 735 (8th Cir. 2001)). But the
details corroborated in this case—Pavulak‘s email
account, his trip to the Philippines, and residence and
employment at the CTI office—did not increase the
likelihood that the sought-after images contained
lascivious depictions of nude minors or minors engaging
in sexual acts prohibited by Delaware law. As a result,
the label ―child pornography‖—without any details about
what the images depict or any other connection to child
pornography—is beyond the outer limits of probable-
cause territory.
Even though the warrants in this case transgressed
that boundary, the evidence should not be suppressed
because the officers relied on the warrant in good faith.
Suppression is not justified when officers act in the
―reasonable belief that their conduct d[oes] not violate
the Fourth Amendment.‖ United States v. Leon, 468 U.S.
897, 918 (1984). ―Ordinarily, the ‗mere existence of a
warrant . . . suffices to prove that an officer conducted a
search in good faith.‘‖ United States v. Stearn, 597 F.3d
540, 561 (3d Cir. 2010) (quoting United States v. Hodge,
246 F.3d 301, 307–08 (3d Cir. 2001)). Yet there are
situations ―in which, although a neutral magistrate has
found probable cause to search, a lay officer executing
the warrant could not reasonably believe that the
magistrate was correct.‖ Id. Those four ―rare
25
circumstances‖ occur when:
(1) the magistrate issued the warrant in
reliance on a deliberately or recklessly
false affidavit;
(2) the magistrate abandoned his judicial
role and failed to perform his neutral
and detached function;
(3) the warrant was based on an affidavit
so lacking in indicia of probable cause
as to render official belief in its
existence entirely unreasonable; or
(4) the warrant was so facially deficient
that it failed to particularize the place
to be searched or the things to be
seized.
Id. at 561 & n.19 (internal quotation marks and citations
omitted). Here, Pavulak invokes only the third
exception—that the affidavit was ―so lacking in indicia
of probable cause as to render‖ the executing officers‘
belief unreasonable.9
9
To the extent Pavulak intends to invoke the first
exception to good faith—that the magistrate issued the
warrant in reliance on a deliberately or recklessly false
affidavit—by arguing that he was entitled to a Franks
26
The ―threshold for establishing this exception is a
high one,‖ Messerschmidt v. Millender, 132 S. Ct. 1235,
1245 (2012), and Pavulak has not overcome that burden
here. The affidavit in this case is not a ―bare bones‖
affidavit. It does not rely on an officer‘s unsupported
belief that probable cause exists. See United States v.
Ritter, 416 F.3d 256, 263 (3d Cir. 2005); see also Gates,
462 U.S. at 239 (identifying the affidavits in Nathanson
v. United States, 290 U.S. 41 (1933), and Aguilar v.
Texas, 378 U.S. 108 (1964), as ―bare bones‖ affidavits
because each contained only an officer‘s belief that
probable cause existed without providing any factual
details). It does not rely on a single piece of stale
evidence. See United States v. Zimmerman, 277 F.3d
426, 437 (3d Cir. 2002). And it does not rely on an
uncorroborated or unreliable anonymous tip. See United
States v. Williams, 3 F.3d 69, 74 (3d Cir. 1993).
Rather, the affiant (also one of the executing
officers) knew that the affidavit had been prepared using
first-hand information from Mack, a fellow employee
who provided reliable and current knowledge of
Pavulak‘s activities at the CTI office—information that
was confirmed by another employee, Riggs. The affiant
also knew that some of the information Mack and Riggs
provided had been corroborated and that this information
hearing, we reject that argument for the reasons set forth
in Parts III and VI.
27
had been circulated in a police memorandum and
reviewed before the warrants were sought. In short, the
officers reasonably relied on the warrant even though the
supporting affidavit did not contain details about the
content of the images.
And their reliance on the warrant despite the lack
of those details is defensible in light of ―the state of
Circuit law at the time.‖ Hodge, 246 F.3d at 309. The
warrants were sought and issued in 2009, but the cases
leading us to conclude that the affidavit was
insufficient—Vosburgh, John, and Miknevich—were not
decided until 2010 and 2011. In fact, the affidavit‘s
allegations would have been sufficient in the Eighth
Circuit at the time. See Grant, 490 F.3d at 630, 632(upholding a search warrant based on an officer‘s
conclusion that a witness‘s description of the images met
the definition of child pornography under the state
statute).
Pavulak counters that the good-faith exception is
inapplicable because the affiant, Detective Skubik, was
also involved in executing the search. That is not the
law. To be sure, we have acknowledged that it is
―somewhat disingenuous‖ to find good faith based on a
―paltry showing‖ of probable cause, ―particularly where
the affiant is also one of the executing officers.‖
Zimmerman, 277 F.3d at 438. Similarly, the Supreme
Court has observed that an officer who both prepared the
search-warrant application and carried out the search was
28
familiar enough with the warrant to have noticed its
deficiency upon ―even a cursory reading‖ or ―just a
simple glance.‖ Groh v. Ramirez, 540 U.S. 551, 564
(2004). Those observations, however, simply reinforce
the longstanding rule that ―paltry‖ affidavits preclude
good faith. Neither the Supreme Court nor this court has
created a new exception to good faith based entirely on
the identity of the executing officer, and Pavulak fails to
cite any court that has interpreted the Supreme Court‘s
observation in Groh so broadly. The officers reasonably
relied on the warrants in good faith and the District Court
correctly denied Pavulak‘s motion to suppress.
III.
Pavulak also claims that the District Court erred by
denying his request for a pre-trial Franks hearing. The
Fourth Amendment prohibits the intentional or reckless
inclusion of a material false statement (or omission of
material information) in a search-warrant affidavit.
United States v. Yusuf, 461 F.3d 374, 383–84 (3d Cir.
2006). In Franks, the Supreme Court held that a
defendant may be entitled to challenge the truthfulness of
facts alleged in support of a search-warrant application.
Franks, 438 U.S. at 164–65. The right to a Franks
hearing is not absolute, however. The defendant must
first (1) make a ―substantial preliminary showing‖ that
the affiant knowingly or recklessly included a false
statement in or omitted facts from the affidavit, and (2)
demonstrate that the false statement or omitted facts are
29
―necessary to the finding of probable cause.‖ Yusuf, 461
F.3d at 383–84.
We have not yet identified the standard of review
for a district court‘s denial of a request for a Franks
hearing, and our sister circuits are divided on the correct
approach.10 See United States v. Falso, 544 F.3d 110,
10
The Fourth, Fifth, and Ninth Circuits employ a mixed
standard, reviewing legal determinations de novo and any
supporting factual findings for clear error. See United
States v. Allen, 631 F.3d 164, 171 (4th Cir. 2011); United
States v. Martin, 332 F.3d 827, 833 (5th Cir. 2003);
United States v. Chavez-Miranda, 306 F.3d 973, 979 (9th
Cir. 2002). By contrast, the First, Sixth, and Seventh
Circuits review a district court‘s decision for clear error,
though it is unclear to what extent that clear-error review
maps onto the Fourth, Fifth, and Ninth Circuits‘ mixed
standard. See United States v. Smith, 576 F.3d 762, 764
(7th Cir. 2009); United States v. Reiner, 500 F.3d 10, 14
(1st Cir. 2007); United States v. Stewart, 306 F.3d 295,
304 (6th Cir. 2002). The Second Circuit has apparently
sided with mixed review, though then-Judge Sotomayor
questioned the validity of that choice. Compare United
States v. Cahill, 355 F. App‘x 563, 565 (2d Cir. 2009)
(reviewing factual findings supporting the denial of a
Franks hearing for clear error), and United States v. One
Parcel of Property Located at 15 Black Ledge, 897 F.2d
97, 100 (2d Cir. 1990) (same), with United States v.
30
126 n.21 (2d Cir. 2008) (recognizing split); United States
v. Becton, 601 F.3d 588, 594 (D.C. Cir. 2010) (citing
United States v. Dale, 991 F.2d 819, 843–44 n.44 (D.C.
Cir. 1993) (per curiam)) (same). We conclude that this
case does not require us to enter the fray. Even under de
novo review, none of the alleged errors identified by
Pavulak would have changed the probable-cause
determination.
Pavulak first says the affidavit omitted crucial
information: although indicating that his prior Delaware
convictions occurred in 1998 and 2005, the affidavit did
Falso, 544 F.3d 110, 126 n.21 (2d Cir. 2008)
(Sotomayor, J.) (questioning the propriety of clear-error
review and noting that the Second Circuit has not
―explain[ed] why that was the appropriate standard‖).
Meanwhile, the Eighth Circuit has carved its own path,
reviewing the district court‘s decision for abuse of
discretion. See United States v. Kattaria, 553 F.3d 1171,
1177 (8th Cir. 2009) (en banc) (per curiam). The
Eleventh Circuit and D.C. Circuit have not yet decided
what standard to use. See United States v. Becton, 601
F.3d 588, 594 (D.C. Cir. 2010) (bypassing the need to
adopt a standard); United States v. Sarras, 575 F.3d
1191, 1219 n.37 (11th Cir. 2009) (same, though noting
that a district court‘s decision to deny an evidentiary
hearing on a motion to suppress is normally reviewed for
abuse of discretion).
31
not explain that the conduct underlying both of those
convictions occurred between 1997 and 1999. This half-
truth, Pavulak says, was ―calculated to portray [him] as a
persistent threat‖ even though ―at the time of the
affidavit[,] he had not committed an offense for roughly
10 years.‖ Appellant‘s Br. at 50. Yet when we add this
counterfactual information to the affidavit, it does not
change our probable-cause determination. Yusuf, 461
F.3d at 388 n.12 (―The omitted information is introduced
into the affidavit in order to determine whether the
omission was material.‖). As we concluded earlier,
Pavulak‘s prior convictions of child molestation did not
establish probable cause for the ―wholly separate crime
of possessing child pornography.‖ John, 654 F.3d at
419; see supra Part II. Given that the convictions
themselves do not change either the reasonableness or
probable-cause determinations, when his underlying
conduct occurred is similarly irrelevant. Consequently,
Pavulak has failed to show that ―there would have been
no probable cause but for‖ the omission of when his prior
conduct occurred. See United States v. Frost, 999 F.2d
737, 743 (3d Cir. 1993).
The false statements Pavulak identifies are no
more availing. He challenges paragraph 4 of the
affidavit, which stated that Pavulak was viewing child
pornography in October 2008 in CTI‘s office ―located at
270 Quigley Blvd, New Castle DE 19720.‖ According to
Pavulak, CTI‘s office was in Newport, Delaware, at that
32
time and did not relocate to New Castle until later that
month. See Appellant‘s Br. at 51. That mistake, though,
does not undermine the existence of probable cause.11
The import of that information was that Pavulak was
viewing child pornography in CTI‘s only office—
wherever it was located—using CTI‘s computers and
using his online Yahoo! account. See, e.g., United States
v. Corral-Corral, 899 F.2d 927, 934 (10th Cir. 1990)
(holding that inclusion of an ―innocent error‖ about the
defendant‘s address in the affidavit was insufficient to
satisfy the defendant‘s burden under Franks). This
alleged misstatement did not meet Pavulak‘s burden.
Finally, the officers‘ internal memorandum stated
that Pavulak ―molested the daughter of his Russian
wife‖—a statement Pavulak claims is false because his
Russian wife did not have a daughter. See Appellant‘s
Br. at 52. Using this statement to challenge the search
warrant, however, turns Franks on its head. The internal
memorandum was not submitted in support of the search-
warrant application, and this statement about a daughter
of his Russian wife was not mentioned in the probable-
cause affidavit. See Oral Arg. Tr. at 8, 38. If Franks
means anything, it means that the Fourth Amendment is
not violated when officers choose to omit information of
questionable veracity from their search-warrant
11
Pavulak does not argue that the warrant authorized or
resulted in a search of the wrong location.
33
applications. That is precisely what Franks encourages
and exactly what the officers did here. In sum, Pavulak
was not entitled to a pre-trial Franks hearing.
IV.
Pavulak further claims that the prosecutor‘s
closing argument denied him due process. Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974). To determine
if that is true, we must ―weigh the prosecutor‘s conduct,
the effect of the curative instructions and the strength of
the evidence.‖ Moore v. Morton, 255 F.3d 95, 107 (3d
Cir. 2001) (citing Darden v. Wainwright, 477 U.S. 168,
182 (1986)). Where, as here, the defendant did not object
to the alleged misconduct, we review the prosecutor‘s
statements for plain error. United States v. Lee, 612 F.3d
170, 193 (3d Cir. 2010).
Although Pavulak complains that three of the
prosecutor‘s statements infected his trial, we detect no
fatal infirmity. First, Pavulak claims that the prosecutor
improperly relied on his four-day trip to Las Vegas as the
basis for the failure-to-update charge. That argument
mischaracterizes the record. To prove that Pavulak
violated the Sex Offender Registration and Notification
Act (―SORNA‖) by failing to update his registration, the
prosecutor had to show that Pavulak (1) was a sex
offender required to register under SORNA who (2)
traveled in interstate or foreign commerce after
SORNA‘s enactment and (3) knowingly failed to update
34
his sex-offender registration as required by SORNA. See
United States v. Pendleton, 636 F.3d 78, 83 (3d Cir.
2011) (citing 18 U.S.C. § 2250(a)). After pointing out
Pavulak‘s status as a sex offender (the first element), the
prosecutor relied on Pavulak‘s trips to Las Vegas and the
Philippines to satisfy the jurisdictional requirement (the
second element). The prosecutor then turned to the third
element, relying on Pavulak‘s failure to update his
registration while living in and employed at the CTI
office. See JA616a (―Now, the problem for the defendant
is that he never registered that address, that CTI address,
as either a place of employment or a place that he was
living.‖ (emphasis added)); see JA615a–31a (arguing that
Pavulak was living and working at the CTI office). The
prosecutor thus argued that Pavulak‘s time at the CTI
office, not his Las Vegas trip, required him to update his
SORNA registration.
Second, the prosecutor‘s momentary focus on the
―big picture‖ did not improperly invite the jury to
cumulate the evidence of the separate charges. The
prosecutor began his closing argument by telling the jury
that Pavulak had been charged with ―four different
crimes‖ and then discussed the law and evidence for each
count separately. See JA612a, 614a (inviting the jury to
―walk through the charges and the evidence that proves
the defendant guilty of each of them‖); see id. (discussing
Count 1); SA300 (discussing Count 4), 321 (discussing
Count 3), 325–26 (discussing Count 2). As he was
35
wrapping up, the prosecutor made the following
comment:
The other thing you see in the presentation
from the defense is a divide and conquer
strategy. They take four different crimes
and they want to separate them and they
want you to look at each one with blinders
on. They don‘t want you to look at the big
picture, because the big picture, folks, is
really ugly for Mr. Pavulak. Same [modus
operandi].
Although this comment is where Pavulak places the
weight of his improper-cumulation argument, this
comment cannot shoulder that load. Such a single,
ambiguous remark—ameliorated by our presumption that
the jury followed its instruction to consider the evidence
for each charge separately, see United States v. Edmonds,
80 F.3d 810, 825 (3d Cir. 1996), and the overwhelming
evidence against Pavulak on each count—cannot
constitute plain error. United States v. Riley, 621 F.3d
312, 339 (3d Cir. 2010) (―The type of counsel
misconduct that warrants granting a new trial is not
generally a single isolated inappropriate comment, but
rather repeated conduct that ‗permeate[s]‘ the trial.‖
(citation omitted)); see also United States v. Brown, 254
F.3d 454, 465 (3d Cir. 2001) (―[A] court should not
lightly infer that a prosecutor intends an ambiguous
remark to have its most damaging meaning or that a jury,
36
sitting through a lengthy exhortation, will draw that
meaning from the plethora of less damaging
interpretations.‖ (citation omitted)).
Third, the prosecutor‘s discussion of the harm
caused by production of child pornography was
unobjectionable. The prosecutor stated:
As the thousands of images of child
pornography on defendant‘s computers
prove, physical and digital images can live
on indefinitely. And think about the story
behind each of those pictures.
The day before he was arrested, the
defendant tried to have [Duran] put [Jane
Doe] on the Webcam, exposing her vagina.
He could have [recorded] that image,
Detective Willey told us. If so, we‘d have
yet another image of child pornography,
another file that memorializes the actual
sexual abuse of a real child, and the story in
this case, the story that you heard last week,
would lie behind that image forever, because
each image memorializes the sexual
exploitation of an actual child. That‘s why
Congress has banned any person from
producing, distributing, receiving, or
possessing an image of child pornography.
37
These statements parallel Congress‘s reasons for
criminalizing the production and attempted production of
child pornography. See 18 U.S.C. § 2251. Besides, this
explanation preempted Pavulak‘s argument that Jane
Doe‘s brief nudity on a webcam would not have
meaningfully harmed her. See R. 84 at 80; Appellant‘s
Br. at 46 (calling Pavulak‘s actions ―minor, to the point
of approaching triviality‖). In short, none of the
prosecutor‘s remarks constitute plain error.
V.
Pavulak also challenges whether the District Court
erred by denying his motion for judgment of acquittal
based on the sufficiency of the evidence supporting his
attempted-production and possession convictions.12 We
review a sufficiency-of-the-evidence claim de novo.
United States v. Flores, 454 F.3d 149, 154 (3d Cir. 2006)
(citing United States v. Brodie, 403 F.3d 123, 133 (3d
Cir. 2005)). In doing so, we ―‗examine the totality of the
evidence, both direct and circumstantial,‘ and ‗interpret
the evidence in the light most favorable to the
government as the verdict winner.‘‖ United States v.
Starnes, 583 F.3d 196, 206 (3d Cir. 2009) (quoting
United States v. Miller, 527 F.3d 54, 60, 62 (3d Cir.
2008)). If ―all the pieces of evidence, taken together,
make a strong enough case to let a jury find [the
12
On appeal, Pavulak does not challenge the sufficiency
of the evidence supporting his remaining convictions.
38
defendant] guilty beyond a reasonable doubt, then we
must uphold the jury‘s verdict.‖ Brodie, 403 F.2d at 134
(quoting United States v. Coleman, 811 F.2d 804, 807
(3d Cir. 1987)).
Here, Pavulak‘s challenge to his conviction for
knowingly possessing child pornography falls short of its
―extremely high‖ burden. Starnes, 583 F.3d at 206(quoting United States v. Iglesias, 535 F.3d 150, 155 (3d
Cir. 2008)). To prove possession of child pornography
under 18 U.S.C. § 2252A(a)(5)(B), the evidence must
show that Pavulak ―knowingly possesse[d], or knowingly
accesse[d] with an intent to view, any book, magazine,
periodical, film, videotape, computer disk, or any other
material that contains an image of child pornography‖
with the requisite connection to interstate commerce.
Pavulak concedes that the images recovered from the
laptop13 depict child pornography. But he argues that no
rational jury could have found beyond a reasonable doubt
that he knowingly possessed those images. See
Appellant‘s Br. at 33–37.
The jury, though, had ample evidence to infer
otherwise. The laptop had only a single password-
protected Windows user account and contained photos of
13
Because the jury‘s verdict can be sustained based on
the evidence relating to the laptop, we do not address
whether the evidence relating to the desktop computer
withstands Pavulak‘s sufficiency challenge.
39
Pavulak, Pavulak claimed that the laptop was his
computer, and the police recovered the laptop from the
part of the CTI office in which he was living. Simply
put, Pavulak was the laptop‘s likeliest user.
And Pavulak was also the likeliest person to have
accessed the child-pornography images on the laptop.
They were not buried away where an innocent user could
have overlooked them. Twenty-nine of them were found
in Windows Photo Gallery, which could have occurred
only if the user had accessed the image and modified it in
some way. And the laptop‘s user edited the twenty-nine
images between September and November 2008, usually
in the evening and on the weekends—when Pavulak had
access to the laptop and other CTI employees did not.
Indeed, on two occasions, several of the child-
pornography images and pictures of Pavulak were edited
within hours of each other. Compare Gov‘t Exs. 246–50,
253–54 (depicting images of Pavulak created on
September 13, 2008 at approximately 3:30 p.m.), with
Gov‘t Exs. 225–225A (depicting an image of child
pornography created on September 13, 2008 at
approximately 11:30 p.m.); compare Gov‘t Ex. 251
(depicting an image of Pavulak created on November 4,
2008 at approximately 5:20 p.m.), with Gov‘t Exs. 211–
211A, 215–216A, 219–220A, 228–228A, 231–231A
(depicting images of child pornography created on
November 4, 2008 at approximately 10:40 p.m.). By
contrast, no one accessed these twenty-nine images of
40
child pornography when Pavulak left the laptop in the
United States during his trip to the Philippines. The
weight of this evidence prevents us from overturning
Pavulak‘s conviction for possessing child pornography.
Likewise, we cannot say that ―‗no reasonable juror
could accept the evidence as sufficient‘‖ to find Pavulak
guilty of attempting to produce child pornography.
Miller, 527 F.3d at 69 (quoting United States v. Lacy,
446 F.3d 448, 451 (3d Cir. 2006)). The crime of attempt
requires the specific intent to commit a crime—here,
producing child pornography in violation of 18 U.S.C.
§ 2251(a)—and a substantial step towards the
commission of that crime. Cf. United States v. Nestor,
574 F.3d 159, 160–61 (3d Cir. 2009) (describing
attempted enticement of a minor to engage in sexual
activity in violation of 18 U.S.C. § 2422(b)). Under
§ 2251(a), a person is guilty of producing child
pornography if he ―employs, uses, persuades, induces,
entices, or coerces any minor to engage in‖ or ―has a
minor assist any other person to engage in . . . any
sexually explicit conduct for the purpose of producing
any visual depiction of such conduct or for the purpose of
transmitting a live visual depiction of such conduct.‖
Here, Pavulak repeatedly insisted that Duran
display Jane Doe‘s vagina via a live webcam feed during
their January 18, 2009 chat session. See JA530a–31a
(telling Duran to ―take ur panties off hon and show me ur
pussy,‖ stating ―no now . . . and [Jane Doe’s] too‖ when
41
Duran initially declined, and again demanding ―now
[Jane Doe’s]‖ after Duran gave in to his request to see
her vagina (emphasis added)). Duran declined to expose
Jane Doe‘s vagina because she was wearing a diaper but
offered to display Jane Doe naked the next morning.
Pavulak agreed, typing ―ok.‖ That evidence was enough
to constitute a substantial step towards ―coercing‖ Jane
Doe to ―engage in any sexually explicit conduct . . . for
the purpose of transmitting a live visual depiction of such
conduct.‖ 18 U.S.C. § 2251(a); see, e.g., United States v.
Lee, 603 F.3d 904, 918 (11th Cir. 2010) (upholding a
guilty verdict for attempted production of child
pornography where the evidence showed that the
defendant ―repeatedly . . . request[ed] sexually explicit
photographs and [sent] a photograph of his own‖).
Moreover, there was plenty of evidence that
Pavulak specifically intended for Duran to display Jane
Doe‘s vagina ―to excite lustfulness or sexual
stimulation.‖ See United States v. Knox, 32 F.3d 733,
745 (3d Cir. 1994) (explaining that ―lascivious exhibition
of genitals or pubic area‖ is ―one variety of ‗sexually
explicit conduct‘ proscribed by the statute‖). During that
chat, Pavulak described various ways that he intended to
sexually abuse Jane Doe in the future, including:
 Digitally penetrating her at age five;
 Hoping that she likes performing oral sex on
him;
42
 Wanting to see her use a vibrator;
 Ejaculating in her mouth during his next trip
to the Philippines; and
 Wanting Duran to continue instructing Jane
Doe on how to perform oral sex.
Pavulak‘s text messages and the ―training video‖ confirm
his desires. His own text messages to Duran indicate that
Pavulak wanted to perform oral sex on Jane Doe, to see
both Duran and Jane Doe ―naked on the cam using the
v[i]brator,‖ to have Jane Doe perform oral sex on him,
and to have Duran ―make it all work out for the three of
[them] to be [sic] happy sex life.‖ And Pavulak created a
―training video‖ for Jane Doe to learn how to perform
oral sex.
Urging us to characterize his chat with Duran as
facetious ―banter,‖ Pavulak claims that he lacked the
specific intent ―to act on any of the illicit portions of his
fantasies.‖ Appellant‘s Br. at 30. Yet ―‗it is not for us to
weigh the evidence.‘‖ United States v. Smith, 294 F.3d
473, 478 (3d Cir. 2002) (quoting United States v. Dent,
149 F.3d 180, 187 (3d Cir. 1998)). And even if that were
one plausible interpretation of the evidence, his
―‗contention that the evidence also permits a less sinister
conclusion‘‖ than guilt is not enough to overturn the
verdict. Id. (quoting Dent, 149 F.3d at 188). Pavulak
fails to take the next step and explain why the
43
government‘s ample evidence does not support the jury‘s
verdict. The jury therefore had sufficient evidence to
find that Pavulak specifically intended to produce child
pornography by directing Duran to expose Jane Doe on
the webcam. As a result, Pavulak‘s sufficiency
challenges fail.
VI.
The District Court did not err by denying
Pavulak‘s motion for a new trial. According to Pavulak,
Mack testified at trial that he saw Pavulak viewing adult
pornography, contradicting the search-warrant affidavit‘s
indication that he saw Pavulak viewing child
pornography. This inconsistency, Pavulak contends,
entitled him to a post-trial Franks hearing so he could
show that the affidavit‘s information was false. In turn,
that falsity would justify suppression of the chat logs,
photographs, and other evidence recovered from the CTI
office and his Yahoo! account and ultimately entitle him
to a new trial under Federal Rule of Criminal Procedure
33.
We normally review the denial of a Rule 33
motion for a new trial for abuse of discretion. See United
States v. Brown, 595 F.3d 498, 511 (3d Cir. 2010) (citing
United States v. Saada, 212 F.3d 210, 215 (3d Cir. 2000).
Because Pavulak predicates his motion for a new trial on
his entitlement to a Franks hearing, we will directly
evaluate the denial of his request for a post-trial Franks
44
hearing. Accord United States v. Rivera, 410 F.3d 998,
1000–01 (8th Cir. 2005) (taking this approach). He was
entitled to such a hearing only if he (1) made a
―substantial preliminary showing‖ that the affiant
knowingly or recklessly included a false statement in or
omitted facts from the affidavit, and (2) showed that the
false statements or omitted facts were ―necessary to the
finding of probable cause.‖ Yusuf, 461 F.3d at 383–84.
Like his request for a pre-trial Franks hearing, we need
not establish a standard of review because Pavulak was
not entitled to a post-trial Franks hearing under any
standard.
Mack‘s trial testimony was perfectly consistent
with the information he provided for the search-warrant
affidavit. At trial, Mack testified that pictures of women
Pavulak met in the Philippines—not the suspected
images of child pornography—―looked of age.‖ Indeed,
at trial, Mack confirmed that the pornographic images to
which he tipped off the police involved ―really young‖
girls in their ―early teens.‖ With no inconsistency
between Mack‘s trial testimony and earlier tip, Pavulak
cannot make the ―substantial preliminary showing‖ that
the information provided in the affidavit was false. And
without identifying false information, Pavulak was not
entitled to a post-trial Franks hearing and, consequently,
to a new trial.
45
VII.
In addition to challenging his convictions, Pavulak
claims that the Constitution required the jury, not the
District Court, to determine the facts that triggered his
mandatory life sentence under 18 U.S.C. § 3559(e)(1) on
the attempted-production conviction. We exercise de
novo review over these questions of constitutional and
statutory interpretation. United States v. Barbosa, 271
F.3d 438, 452 (3d Cir. 2001) (citing United States v.
Williams, 235 F.3d 858, 861 (3d Cir. 2000)).
First, some background: Section 3559(e)(1)
imposes a mandatory life sentence on a defendant
―convicted of a Federal sex offense in which a minor is
the victim‖ if he has a ―prior sex conviction in which a
minor was the victim.‖ The trigger for this section—a
―prior sex conviction in which a child was the victim‖—
includes specified ―Federal sex offense[s]‖ as well as
―State sex offense[s]‖ that would be ―punishable by more
than one year in prison‖ and involve ―conduct that would
be a Federal sex offense‖ if there were federal
jurisdiction. 18 U.S.C. § 3559(e)(2)(A)–(B).
Thus, determining whether § 3559(e)(1)‘s
mandatory life sentence applies to Pavulak turns on
whether his prior Delaware convictions for unlawful
sexual contact in the second degree under 11 Del. Code
§ 768 also constitute a federal sex offense—here,
aggravated sexual abuse of a child under 18 U.S.C.
46
§ 2241(c). To make that determination, we must start
with the formal categorical approach. That inquiry
requires a district judge to evaluate whether the
―elements of the statutory state offense,‖ not ―the specific
facts‖ underlying the defendant‘s prior conviction, would
automatically constitute a federal sex offense. Jean-
Louis v. Att’y Gen. of U.S., 582 F.3d 462, 465 (3d Cir.
2009). Here, the Delaware crime of unlawful sexual
contact in the second degree is not necessarily congruous
with the federal crime of aggravated sexual abuse of
children under 18 U.S.C. § 2241(c). There are at least
two differences:
1. Section 2241(c) requires the victim to be less
than twelve years old, whereas 11 Del. Code
§ 768 requires the victim to be less than
eighteen years old.
2. Section 2241(c) contains an additional
element—a specific-intent requirement that the
defendant‘s ―intentional touching‖ occur ―with
an intent to abuse, humiliate, harass, degrade,
or arouse or gratify the sexual desire of any
person‖—that 11 Del. Code. § 768 does not
require. Compare 18 U.S.C. § 2246(2)(D)
(defining ―sexual act‖ to include this specific-
intent requirement), with 11 Del. Code § 761(f)
(defining ―sexual act‖ without any specific-
intent requirement).
47
Given these differences, the Delaware law under
which Pavulak was previously convicted does not
necessarily ―involve conduct that would be a Federal sex
offense‖ under the formal categorical approach. See,
e.g., Singh v. Ashcroft, 383 F.3d 144, 153 (3d Cir. 2004)
(reaching the same conclusion in comparing the
Delaware crime of unlawful sexual contact in the third
degree with the federal crime of sexual abuse of a minor
because the federal crime required a victim under twelve
years old while the Delaware crime did not contain an
age cut-off). Consequently, we cannot conclude, as a
matter of law, that Pavulak‘s prior state convictions
necessarily constitute a federal sex offense.
Our inquiry does not end there: the trier of fact
might find sufficient facts underlying Pavulak‘s prior
Delaware convictions to satisfy the two additional
requirements of the federal crime of aggravated abuse of
children. Who—the judge or the jury—is allowed to
engage in that fact-finding? Under the familiar Apprendi
rule, the Fifth Amendment‘s Due Process Clause and
Sixth Amendment‘s Jury Trial Guarantee require ―any
fact, other than the fact of a prior conviction, that
increases the penalty for a crime beyond the prescribed
statutory maximum [to] be submitted to a jury and
proved beyond a reasonable doubt.‖ United States v.
Chorin, 322 F.3d 274, 278 (3d Cir. 2003) (citing
Apprendi, 530 U.S. at 490).
If Apprendi applies, the district judge is usually
48
limited to the formal categorical approach, and any
remaining elements of the federal sentencing
enhancement must be found by a jury beyond a
reasonable doubt. In some cases (like this one) where the
federal sentencing enhancement ―invites inquiry into the
underlying facts of the case,‖ Borrome v. Att’y Gen. of
U.S., 687 F.3d 150, 155 (3d Cir. 2012), we have modified
the categorical approach, permitting the district judge to
―evaluate whether the factual elements of the analogous
federal crime were necessarily proven at the time of the
defendant‘s conviction on the state charges.‖ United
States v. Rood, 679 F.3d 95, 98 (2d Cir. 2012) (applying
the modified categorical approach to 18 U.S.C.
§ 3559(e)); see 18 U.S.C. § 3559(e) (focusing on whether
the state sex offense involves ―conduct that would be a
Federal sex offense‖ and thereby inviting an inquiry into
the facts underlying the defendant‘s conviction (emphasis
added)). Under this modified categorical approach, the
judge may consider only those facts that were
―necessarily admitted‖ by the defendant in his prior
criminal proceeding—that is, facts found in the ―charging
document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial
judge to which the defendant assented.‖ Shepard v.
United States, 544 U.S. 13, 16 (2005). On the other
hand, if Apprendi does not apply, then the district judge
is free to make any factual findings related to sentencing,
just as he is when finding facts that trigger enhancements
under the Sentencing Guidelines that would not increase
49
the defendant‘s maximum statutory sentence. See, e.g.,
United States v. Grier, 475 F.3d 556, 562 (3d Cir. 2006)
(en banc) (holding that Apprendi does not limit a district
court‘s ability to engage in judicial fact-finding within
the permissible sentencing range so long as that fact-
finding would not trigger an increase in the defendant‘s
maximum statutory sentence).
Here, Apprendi‘s restriction on judicial fact-
finding does not apply because the mandatory life
sentence in § 3559(e) does not exceed Pavulak‘s
maximum statutory sentence for attempted production of
child pornography, which is life imprisonment. For
attempted production of child pornography, 18 U.S.C.
§ 2251(e) establishes three sets of sentencing ranges
depending on the defendant‘s criminal history. A
defendant with no qualifying prior convictions faces
fifteen to thirty years‘ imprisonment. 18 U.S.C.
§ 2251(e). A defendant faces twenty-five to fifty years‘
imprisonment if he has one prior conviction under certain
federal laws or ―under the laws of any State relating to
aggravated sexual abuse, sexual abuse, abusive sexual
contact involving a minor or ward, or sex trafficking of
children, or the production, possession, receipt, mailing,
sale, distribution, shipment, or transportation of child
pornography.‖ Id. Lastly, a defendant faces
imprisonment between thirty-five years and life if he has
two or more prior convictions under certain federal laws
―or under the laws of any State relating to the sexual
50
exploitation of children.‖ Id.Although Pavulak concedes that his two prior
Delaware convictions subjected him to a sentencing
range of twenty-five to fifty years, he contends that they
did not ―relat[e] to the sexual exploitation of children‖
and therefore did not subject him to life imprisonment.
And because § 3559(e)‘s mandatory life imprisonment
would exceed his statutory maximum of fifty years under
§ 2251(e), Pavulak concludes that Apprendi required the
jury (not the District Court) to determine whether his
Delaware convictions triggered the mandatory life
sentence in § 3559(e).
Pavulak‘s premise is faulty. His two prior
Delaware convictions did ―relat[e] to the sexual
exploitation of children,‖ subjecting him to a statutory
maximum of life imprisonment under § 2251(e). That
conclusion is mandated by our decision in United States
v. Randolph, 364 F.3d 118, 119 (3d Cir. 2004). There,
the defendant had three prior Georgia convictions for
child molestation—defined as performing ―any immoral
or indecent act to or in the presence of or with any child
under the age of 14 years with the intent to arouse or
satisfy the sexual desires of either the child or the
person.‖ Id. at 122 (quoting Ga. Code Ann. § 26-2019(1978)). After being convicted of attempted production
of child pornography under a previous version of § 2251,
the defendant faced an increased statutory maximum if
his prior Georgia convictions involved the ―sexual
51
exploitation of children‖—the same framework as the
current version of § 2251. See id. at 119. He argued that
this enhancement applied only if the conduct underlying
his prior convictions ―involv[ed] the production of visual
depictions of minors engaged in sexually explicit
conduct.‖ Id. at 122. We rejected that case-by-case
analysis and depiction-limited definition. Instead, we
adopted a categorical approach focused on whether the
statutory definition of the prior crime, rather than the
particular defendant‘s conduct, related to the ―sexual
exploitation of children.‖ Id. And Georgia‘s law against
child molestation, we concluded, related to the ―sexual
exploitation of children.‖ Id.
Likewise, Pavulak‘s two prior Delaware
convictions for unlawful sexual contact in the second
degree involved the ―sexual exploitation of children.‖
Under Delaware law, ―[a] person is guilty of unlawful
sexual contact in the second degree when the person
intentionally has sexual contact with another person who
is less than 16 years of age or causes the victim to have
sexual contact with the person or a third person.‖ 11 Del.
Code § 768. ―Sexual contact‖ is one type of ―sexual
exploitation.‖ See Randolph, 364 F.3d at 122 (holding
that ―child molestation‖ is related to sexual exploitation);
United States v. Galo, 239 F.3d 572, 583 (3d Cir. 2001)
(holding that ―sexual exploitation‖ in § 2251(e) includes
―involuntary deviate sexual intercourse‖ and ―statutory
rape‖); see id. (holding that the definition of the prior
52
conviction need not ―contain the term ‗sexual
exploitation of children‘‖ to qualify). And because
section 768 requires a victim who is ―less than 16 years
of age,‖ the statute is limited to ―the sexual exploitation
of children‖ as required by § 2251(e) (emphasis added).
Pavulak urges us to adopt the same case-by-case
approach that we rejected in Randolph—a proposal we
are powerless to consider. See Mariana v. Fisher, 338
F.3d 189, 201 (3d Cir. 2003) (―[T]he holding of a panel
in a precedential opinion is binding on subsequent
panels.‖ (quoting Third Circuit I.O.P. 9.1)).
And contrary to Pavulak‘s insistence otherwise,
Congress‘s amendments to § 2251(e) since Randolph do
not change anything. At the time of Randolph,
§ 2251(e)‘s enhanced sentencing ranges were both
triggered by prior state convictions ―relating to the sexual
exploitation of children‖: twenty-five to fifty years for
one such conviction and thirty-five years to life for two
such convictions. See Randolph, 364 F.3d at 119. In
2006, Congress amended the description of qualifying
state offenses that would trigger the twenty-five-to-fifty-
year category: it replaced ―the sexual exploitation of
children‖ with ―aggravated sexual abuse, sexual abuse,
abusive sexual contact involving a minor or ward, or sex
trafficking of children, or the production, possession,
receipt, mailing, sale, distribution, shipment, or
transportation of child pornography.‖ Adam Walsh
Child Protection and Safety Act of 2006, Pub. L. No.
53
109-248, § 206(b)(1)(B), 120 Stat. 587, 614 (2006). But
Congress did not make any changes to the thirty-five-to-
life category under which Pavulak was sentenced—
meaning that state laws ―related to the sexual exploitation
of children‖ remained a trigger for that sentencing range.
See id.Pavulak believes that the amendment limits the
meaning of ―sexual exploitation of children‖ to crimes
involving visual depictions. He is wrong. That
interpretation would ascribe the same meaning to the
term ―sexual exploitation of children‖ in the thirty-five-
to-life category and the phrase ―the production,
possession, receipt, mailing, sale, distribution, shipment,
or transportation of child pornography‖ in the twenty-
five-to-fifty category. Ordinarily, ―we assume that
Congress used two different [phrases] because it intended
each [phrase] to have a particular, nonsuperfluous
meaning.‖ United States v. Tupone, 442 F.3d 145, 158
(3d Cir. 2006) (quoting Bailey v. United States, 516 U.S.
137, 146 (1995)). If Congress had wanted to implement
Pavulak‘s interpretation, it could have explicitly done so
by replacing ―the sexual exploitation of children‖ in the
thirty-five-to-fifty category with ―the production,
possession, receipt, mailing, sale, distribution, shipment,
or transportation of child pornography.‖ It is hard to
fathom why Congress, seeking to increase the penalties
for sexual offenses against children, would have
amended the twenty-five-to-fifty category to ensure that
54
crimes beyond those involving visual depictions were
included while silently limiting the qualifying crimes to
visual depictions for the thirty-five-to-life category. And
given that Congress kept ―so many prior federal
offenses‖ that trigger the thirty-five-to-life category, it is
―implausible‖ that Congress simultaneously ―chose to
restrict qualifying state offenses to child pornography
production.‖ United States v. Sanchez, 440 F. App‘x 436,
440 (6th Cir. Aug. 23, 2011) (emphasis added).
Since Pavulak‘s mandatory life sentence under
§ 3559(e) did not exceed his maximum statutory sentence
of life under § 2251(e), Apprendi is inapplicable. United
States v. DeSumma, 272 F.3d 176, 181 (3d Cir. 2001)
(―[W]hen the actual sentence imposed does not exceed
the statutory maximum, Apprendi is not implicated.‖). It
was therefore constitutional for the District Court to
determine that Pavulak‘s prior Delaware convictions
involved ―conduct that would be a Federal sex offense‖
and thus triggered the mandatory life sentence in
§ 3559(e).
* * * * *
Accordingly, we will affirm Pavulak‘s convictions
and sentence.
55