United States v. Joseph Collard ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0104n.06
Nos. 19-2151/2153
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Feb 25, 2021
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee,
)
)
v. ON APPEAL FROM THE
) UNITED STATES DISTRICT
)
ADAM CHRISTOPHER COLLARD (19-2151); COURT FOR THE WESTERN
)
JOSEPH ALAN COLLARD (19-2153), DISTRICT OF MICHIGAN
)
Defendants-Appellants. )
BEFORE: BATCHELDER, MOORE, and ROGERS, Circuit Judges.
ROGERS, Circuit Judge. Defendants Adam and Joseph Collard appeal their convictions
for various charges related to possession of child pornography and challenge their prison
sentences. Most of defendants’ claims are meritless, but defendants raise colorable challenges
based on the district court’s admission of Adam’s prior conviction and evidence that Joseph
possessed a sex toy. Any error in the admission of this evidence was harmless error, however.
Defendants were indicted in 2018 on various child pornography-related charges stemming
from an FBI investigation based in the Eastern District of Virginia. In February and March of
2015, the FBI had been investigating Playpen, a child-pornography sharing website on the dark
web. To access Playpen, users must download and use The Onion Router (Tor) browsing software,
which masks users’ IP addresses by routing users’ signals through computers worldwide. While
law enforcement can generally review user logs to identify a website’s users, because Playpen
users “mask” their IP addresses, such logs would show the IP address of the most recent computer
the user was routed through, not the originating IP address. To track down the true IP addresses
Nos. 19-2151/2153, United States v. Collard, et al.
of Playpen users, the FBI sought and obtained authorization to use a network investigative
technique (“NIT”) from a federal magistrate judge in Virginia.1 The NIT allowed the FBI to learn
the actual IP addresses of the website’s users, which in turn enabled law enforcement to identify
computers and their locations.
During the investigation, the FBI traced a user’s log-on name and IP address to defendant
Adam Collard and learned his home address. The FBI determined that Adam lived with his parents
and brother in Eaton Rapids, Michigan, and discovered that Adam was a registered sex offender,
who had previously been convicted for possession of child pornography. Law enforcement then
obtained two search warrants: one for Adam’s home, and another for a camper and vehicle at a
campground that Adam was staying at. Both search warrants were executed on the same day. At
the campsite, law enforcement seized a laptop, smart phone, external hard drive, thumb drives, and
a flash drive. During the residential search, Adam’s father Douglas was present and informed
agents that Adam and his brother Joseph had separate rooms. The agents searched both rooms,
each with its own computers and storage media, which were ultimately seized. Investigators
conducted a forensic examination of the devices and concluded that both Adam’s and Joseph’s
computers contained child pornography and a file-sharing program. Adam’s devices had tens of
thousands of images of child pornography (including images depicting bestiality, bondage, and
torture), more than one thousand pornography movies, and a “Pedophile Sex Manual.” Most of
the content on Adam’s devices involved female minors. Joseph’s computers and storage media
contained hundreds of images and more than seventy videos containing sex acts or male
masturbation; Joseph’s child pornography collection primarily involved male minors.
1
The FBI learned of Playpen’s true IP address from a foreign law enforcement agency and executed a search warrant
at the hosting company. The FBI seized the computer server and covertly operated the site from Virginia.
-2-
Nos. 19-2151/2153, United States v. Collard, et al.
Adam and Joseph were tried together and were represented by the same privately retained
counsel. Each defendant consented to the joint representation, and the district court found there
was no actual or potential conflict of interest. At trial, the Government relied on the testimony of
an FBI agent and a computer forensics expert to elicit evidence that the brothers were in the
computer repair business and were sophisticated computer users. The Government also introduced
evidence against Adam of Adam’s prior conviction for possession of child pornography. In
addition, the Government introduced against Joseph evidence that Joseph purchased and possessed
an anal dildo, which the Government submitted for the purpose of linking Joseph to a computer
seized from his room that contained a record of the purchase and child pornography. Adam was
convicted of two counts of receipt of child pornography, in violation of
18 U.S.C. § 2252A(a)(2)(A) and (b)(1), and one count of possession of child pornography, in
violation of § 2252A(a)(5)(B) and (b)(2). His brother Joseph was convicted of one count of
attempted receipt of child pornography and one count of receipt of child pornography, both in
violation of § 2252(a)(2)(A) and (b)(1), and one count of possession of child pornography in
violation of § 2252A(a)(5)(B) and (b)(2).
Adam and Joseph timely appealed. They first argue that the district court improperly
denied their motion to suppress evidence seized under the NIT, which they argue was an illegal
warrant. They further contend that the district court erred by denying their motion to compel the
Government to produce certain information related to NIT technology used to track Adam’s online
activity. Adam and Joseph both challenge the admission of Adam’s prior conviction for possession
of child pornography, and Joseph challenges the admission of evidence that he possessed a sex
toy. Finally, they appeal their sentences, arguing that the district court incorrectly found that they
engaged in distribution or trafficking of child pornography.
-3-
Nos. 19-2151/2153, United States v. Collard, et al.
NIT Warrant
Defendants’ first claim, that the computers and digital property seized by the Government
should have been suppressed, was properly denied by the district court. Defendants argue that the
initial NIT warrant in the Eastern District of Virginia was not sufficiently particularized and thus
violated the Fourth Amendment. According to defendants, evidence seized pursuant to the second
warrant (which authorized the search and seizure of the Collard home and camper) were fruits of
the poisonous tree and should have been suppressed. This court has already heard and rejected a
similar challenge to the NIT warrant’s particularity in United States v. Harney, 934 F.3d 502,
505–06 (6th Cir. 2019), another case that stemmed from the investigation in Virginia. That
decision is controlling here.
Without addressing Harney, defendants maintain the warrant was not sufficiently
particularized, pointing to recent testimony (in a separate case) that the FBI was able to “monitor[]”
and “capture[] the activity associated with each individual user on the Playpen Web site.” Given
these capabilities, defendants argue, the FBI could have obtained individual NIT warrants against
specific users who had accessed child pornography. Such a “targeted approach” would have
excluded from the Government’s search those users “who simply logged into the site—even if
[they] logged out immediately without viewing any child pornography.” This argument ignores
the “reality of web-based searches” and is not persuasive. Id. at 505.
Defendants’ arguments about the breadth of the warrant appear to be animated by concerns
that it would sweep up innocent bystanders seeking access to Playpen’s legal content. But as we
have previously explained, the notion that innocent users would be on Playpen (and thus subject
to government monitoring) is hardly plausible. See United States v. Tagg, 886 F.3d 579 (6th Cir.
2018); United States v. Bateman, 945 F.3d 997 (6th Cir. 2019). Websites on the dark web cannot
-4-
Nos. 19-2151/2153, United States v. Collard, et al.
be accessed by just anyone on the Internet or through a typical search browser. Tagg, 886 F.3d at
583. Rather, users must use Tor to get on those sites, which typically consist of a randomized
URL containing a 16-digit string of numbers and letters, such as upf45jv3bziuctml.onion. See id.
Such a URL ensures that “[a]bsent some statistically impossible stroke of luck,” an Internet user
cannot accidentally happen upon the site.2 Tagg, 886 F.3d at 583. On the off chance that Internet
users accidentally came across Playpen’s homepage in particular, they would then encounter
suggestive images involving prepubescent girls, alerting them to the website’s content. Bateman,
945 F.3d at 1002 & n.9. We have held that because of the numerous affirmative steps Playpen
users had to take to access the site, there was probable cause to conclude that those who did so
acted knowingly and with the intention to view child pornography, itself a criminal act. Tagg, 886
F.3d at 587. The NIT warrant is thus “[f]ar from the kind of general warrant at which the
particularity requirement takes aim.” Harney, 934 F.3d at 505.
Our holding that the NIT warrant was constitutional did not rest on whether the FBI was
technologically capable of employing a narrower approach. In fact, while the court in Harney
understood the warrant to permit searches of any computers that logged on to Playpen, id., the
record here reflects that the NIT was deployed more narrowly. The NIT was “only used against
users accessing certain portions of the site (e.g. the preteen hardcore photos/videos section, as
opposed to general discussion boards),” further ameliorating concerns about the breadth of the
warrant. (Emphasis added). New evidence that the FBI could have narrowed its search, without
more, does not take this case outside of the scope of previous rulings; nor does it render the NIT
warrant constitutionally infirm.
2
Because of a misconfiguration that does not appear to be at issue here, before February 20, 2015, Playpen was
“occasionally accessible through the traditional Internet.” A user would have still needed to know the IP address of
the server that hosted Playpen, information which was not publicly available.
-5-
Nos. 19-2151/2153, United States v. Collard, et al.
Defendants’ argument that the NIT warrant exceeded the territorial limits in Federal Rule
of Criminal Procedure 41 is also unavailing because the good-faith exception applies. We have
previously assumed that the NIT warrant may have exceeded the scope of Rule 41, see, e.g., United
States v. Moorehead, 912 F.3d 963, 969 (6th Cir. 2019); Harney, 934 F.3d at 506. But because
“reasonable jurists have come to different conclusions about whether the NIT Warrant was valid”
under Rule 41(b)’s territorial limits, we have concluded that we cannot “expect officers to have
known that this type of warrant was invalid at the time it was sought” and have thus applied the
good-faith exception. Moorehead, 912 F.3d at 970 (citing cases). Defendants have not pointed to
anything that should compel the court to reach a different result here. Instead, without addressing
any of the Sixth Circuit opinions on point, they cite only district court decisions that predate the
relevant precedent, such as United States v. Martin, No 15-20544-02, 2016 WL 4493675 (E.D.
Mich. 2016).
To the extent that defendants rely on new evidence about the FBI’s capabilities to argue
that the good-faith exception should not apply, such a claim also fails. Although defendants do
not clearly spell out their argument, it appears they contend that, because the NIT warrant violated
the particularity requirement, and because FBI officers knew they could have narrowed their
search, the good-faith exception should not apply. As discussed above, defendants have not shown
that the warrant violated the Fourth Amendment, which should end the matter. Defendants also
have not shown how a search that would have narrowed the number of users being surveilled
affects the question of whether the magistrate judge exceeded any territorial limits. The
exclusionary rule should not apply where, as here, “an objectively reasonable officer could have
believed the seizure valid.” United States v. McClain, 444 F.3d 556, 566 (6th Cir. 2006). There
is no evidence here that the officers had any reason to believe that the seizure was invalid, even if
-6-
Nos. 19-2151/2153, United States v. Collard, et al.
they knew the FBI could have used a narrower approach. “To trigger the exclusionary rule, police
conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently
culpable that such deterrence is worth the price paid by the justice system.” Herring v. United
States, 555 U.S. 135, 144 (2009). Here, however, defendants do not allege any such misconduct.
They never argue that the FBI misrepresented its technological abilities to the magistrate judge or
point to any police misconduct, much less any conduct that is “deliberate, reckless, or grossly
negligent.” The evidence was also seized pursuant to a second warrant, thus weakening the link
between the evidence and any misconduct related to the NIT warrant. To be sure, the second
warrant was born out of the first, but courts should be wary of applying the exclusionary rule where
the connection between alleged police misconduct and relevant evidence becomes “sufficiently
attenuated” so as to “dissipate[e] . . . the taint,” and where, as here, the “flagrancy of the police
misconduct” is hardly an issue. United States v. Leon, 468 U.S. 897, 911 (1984) (citations
omitted).
NIT Source Code
Defendants’ second claim, that the district court should have compelled the Government
to disclose the “complete source code for the [NIT], including the exploit and payload” under
Federal Rule of Criminal Procedure 16(a)(1)(E), also fails3. This court heard a similar claim in
Harney as well, and concluded that the district court did not abuse its discretion by declining to
require the government to hand over the NIT. Defendants’ contention in this case that the NIT
source code is necessary to determine whether a third party hacked their computers and placed the
pornography on their devices mirrors Harney’s arguments that the government improperly stored
3
Although Joseph raises this argument, it is not clear that he has standing to do so or how he would benefit from the
NIT source code. Law enforcement did not rely on the NIT to identify Joseph; his computer was seized once law
enforcement had used the NIT to identify Adam.
-7-
Nos. 19-2151/2153, United States v. Collard, et al.
data or made his computer susceptible to third-party access. Harney, 934 F.3d at 508. While we
were sympathetic to Harney’s concerns, we reasoned that his arguments were too generalized to
“show[] a problem . . . that overrides the government’s interest in keeping the generic components
of the technique secret.” Id. The same is true here. Defendants again do not address Harney,
much less distinguish it. To be sure, the record here reflects that—unlike in Harney—defendants’
experts did use the Government’s tools that were turned over to the defense, and their defense at
trial hinged on the possibility that third parties maliciously accessed their computers and
downloaded the content. But defendants offer only a cursory argument that they should not be
required to show third-party wrongdoing before obtaining the very tools enabling them to show
such wrongdoing. Such a conclusory argument, however, is insufficient to render Harney
inapplicable. See id.
Adam’s Prior Conviction
Defendants make a colorable argument that the district court erred in admitting Adam’s
prior conviction for possession of child pornography. Any such error, however, is harmless.
Before trial, Adam filed a motion in limine seeking to exclude evidence of his previous
conviction for possession of child pornography under Federal Rule of Evidence 404(b). The
district court granted his motion, “subject to renewal of a request by the Government based on the
proofs offered at trial.” During the trial, defense counsel cross-examined an FBI computer forensic
examiner, and suggested that the child pornography found on Adam’s computer may have been
due to malware or was downloaded by one of Adam’s employees who had access to his computer.
In response to this line of questioning, the Government argued that the defense had “put[]
knowledge squarely at issue,” and renewed its request to admit Adam’s prior conviction. The
court agreed and admitted the evidence over defendants’ objections. Through the testimony of
-8-
Nos. 19-2151/2153, United States v. Collard, et al.
FBI Agent Rodney Charles, the jury learned only that the conviction was for possession of child
sexually explicit material; the judgment of sentence was admitted as an exhibit, and the
Government offered no evidence about the circumstances involving the conviction. The district
court issued limiting instructions twice: once immediately after Charles was done testifying, and
again when it gave the jury final instructions before deliberation. The court instructed the jury that
the conviction could not be used against Joseph and could be used against Adam only as it “relates
to his knowledge, identity, or absence of mistake.”
Adam and Joseph maintain that despite the limiting instructions, the evidence should have
been excluded under Federal Rule of Evidence 404(b), which prohibits the use of prior offenses to
“prove a person’s character in order to show that on a particular occasion, the person acted in
accordance with the character.” Fed. R. Evid. 404(b)(1). Such evidence may be admissible,
however, for other purposes, including—as the district court found relevant here—proving
knowledge, absence of mistake, or identity.4 See Fed. R. Evid. 404(b)(2). Under Rule 404(b),
the district court must: (1) make a preliminary finding as to whether
sufficient evidence exists that the prior act occurred; (2) determine
whether the other act is admissible for one of the proper purposes
outlined in Rule 404(b); and (3) apply Rule 403 balancing to
determine whether the evidence’s probative value is substantially
outweighed by the danger of unfair prejudice or the other concerns
embodied in Rule 403.
United States v. Allen, 619 F.3d 518, 523 (6th Cir. 2010).5 Defendants do not meaningfully
challenge the first prong.
4
At argument, the Government conceded that the only permissible purposes were knowledge, identity, and absence
of mistake. We therefore confine our analysis to those purposes.
5
Evidentiary rulings are generally subject to an abuse of discretion standard, but this court has previously applied a
three-tier test that aligns with Rule 404’s three-part test and in which the court reviews:
(1) for clear error the district court’s determination that the “other act” took place;
(2) de novo the district court’s legal determination that the evidence was
admissible for a proper purpose; and (3) for abuse of discretion the district court’s
-9-
Nos. 19-2151/2153, United States v. Collard, et al.
As to the second prong, the district court colorably erred when it concluded that Adam’s
prior conviction is admissible for knowledge or absence of mistake where there was no evidence
that the previous offense involved the use of computers or similar technology. The Government
offered no evidence that Adam obtained the previous pornographic materials electronically, and
the court did not probe further into the circumstances of the previous offense. In fact, defense
counsel later introduced evidence that the prior conviction involved ten photographs that he
possessed in his parents’ basement.
It is also questionable that the prior conviction was admissible to show identity. Where
identity is in dispute, evidence “that the defendant previously committed a different crime using
the same or similar modus operandi as was employed in the commission of the crime charged [is
admissible] to show that the same actor committed both crimes.” United States v. Fountain, 2 F.3d
656, 668 (6th Cir. 1993), overruled on other grounds, Trepel v. Roadway Express, Inc., 194 F.3d
708, 717 (6th Cir.1999). The Government here made no showing that the previous conviction
involved similar circumstances—let alone a nearly identical method of operations.
Even assuming that the previous child pornography conviction served a proper purpose
under Rule 404, there is a colorable argument that under Rule 403, the probative value of the prior
conviction “is substantially outweighed by a danger of . . . unfair prejudice.” Here, the
Government conceded, it presented ample evidence of attribution, and the prior conviction was
substantially similar to one of the charges for which he was indicted.
determination that the probative value of the other acts evidence is not
substantially outweighed by its unfairly prejudicial effect.
United States v. Bell, 516 F.3d 432, 440 (6th Cir. 2008). There appears to be an unresolved dispute as to which
standards apply, while some panels consider the different formulations to be consistent. We need not resolve this
disagreement in this case.
-10-
Nos. 19-2151/2153, United States v. Collard, et al.
Ultimately, however, admission of Adam’s prior crime was harmless. The record reflects
that the Collard brothers ran a computer repair business and were sophisticated computer users.
The Government showed the file paths for the downloaded content, which contained Adam’s and
Joseph’s names. That Joseph had downloaded encrypted files the Government could not break
further shows his technological prowess. The Government also presented evidence refuting
defense counsel’s suggestion that the child pornography could have unwittingly been on his
computer through malware. Through the testimony of the FBI computer forensic examiner, the
jury learned it was unlikely for someone—especially someone with Adam’s computer repair
expertise—to be unaware of the existence of thousands of child pornography images on a device.
The Government further elicited testimony that there was no evidence of malware or ransomware
on the seized devices (and that malware and ransomware could not create CDs with child
pornography). In addition, evidence “that child pornography was downloaded at all hours of the
day and night . . . [and] not necessarily within business hours,” severely undercuts Adam’s
argument that an employee downloaded the content.
As to Joseph, he was clearly not harmed by the admission of his brother’s conviction.
Joseph points to the fact that that the Government painted him and his brother as “sexual deviants”
and that he was tainted by his association with Adam. Immediately after the jury heard evidence
of Adam’s conviction, the district court specifically instructed the jury that it “can consider the
evidence only as relates to [Adam’s] knowledge, identity, or absence of mistake,” but that it “must
not consider it for any other purpose as to [Adam]” and that it “may not consider it for any purpose
as to his co-defendant.” At the trial’s closing, the court again told the jury that it “cannot consider
[Adam’s previous conviction] in any way against the other defendant, Joseph Collard.”
We presume that jurors follow instructions, see United States v. Harvey, 653 F.3d 388, 396
-11-
Nos. 19-2151/2153, United States v. Collard, et al.
(6th Cir. 2011), and the presumption is particularly strong with respect to that instruction. The
jury was told unequivocally that the prior conviction could not be used as to Joseph. Even the out-
of-circuit case which Joseph cites for the proposition that a jury may draw adverse inferences based
on defendants’ associations recognized that such a risk is generally “too insubstantial in most
circumstances to survive forceful instructions.” United States v. Figueroa, 618 F.2d 934, 946
(2d Cir. 1980).
At bottom, there was compelling proof linking both defendants to the child pornography
on their computers and electronic devices and ample evidence dispelling defendants’ argument
that they did not download or were unaware of the content on their computers. Defendants have
offered no persuasive argument to the contrary.
Admission of Joseph’s Possession of a Sex Toy
Joseph mounts a separate challenge to the admission of evidence that he possessed a dildo,
which also fails. During the trial, the Government elicited testimony from an FBI agent that he
found an anal dildo in Joseph’s room. The Government introduced as an exhibit a screenshot of
the Amazon order confirmation for the dildo, the purpose of which was to link Joseph as the owner
of a seized computer that contained pornography. Defense counsel objected and later requested a
mistrial, and the judge denied defense counsel’s requests both times. On appeal, Joseph argues
the district court erred by admitting the evidence, which he asserts was of limited probative value
and substantially outweighed by its prejudicial impact.
Although the dildo evidence is indeed prejudicial, the district court likely did not abuse its
discretion when it ruled the evidence admissible, and in any event, the admission would be
harmless error. A district court abuses its discretion when it “relies on clearly erroneous findings
of fact, improperly applies the law or uses an erroneous legal standard.” United States v. Dixon,
-12-
Nos. 19-2151/2153, United States v. Collard, et al.
413 F.3d 540, 544 (6th Cir. 2005) (citing Romstadt v. Allstate Ins. Co., 59 F.3d 608, 615 (6th
Cir.1995)). The district court found that the evidence connected to the dildo purchase was relevant
to the question of computer ownership. While acknowledging the evidence’s prejudicial nature,
the district court concluded that because the Government was introducing the evidence in the form
of “just a piece of a paper,” it was “not unfairly prejudicial.” (Emphasis added). This was
particularly true given the other admissible evidence in the case, which included images and screen
shots of the child pornography. Joseph is correct that there may have been other less prejudicial
evidence to tie him to the computer and the room in which it was seized. The Government admits
as much, arguably making the dildo-related evidence cumulative. The Government further
clarified at argument, however, that it chose to introduce this evidence in particular because it is
deeply personal and Joseph would have been unlikely to lend his computer to others if he was
using it for such personal purchases. While the alternative means of less prejudicial proof arguably
weakens the district court’s reasoning, it does not give rise to a “definite and firm conviction” that
there was a “clear error of judgment,” which is the standard stated in cases such as United States
v. Bartholomew, 310 F.3d 912, 920 (6th Cir. 2002). In any event, even if the admission of the
dildo evidence was error, the ample other evidence allowing the jury to attribute the computer to
Joseph makes the error harmless.
Sentencing Challenges
Finally, defendants’ claims that the district court miscalculated their sentences are also
without merit. Adam and Joseph both challenge the two-level enhancement under
U.S.S.G. § 2G2.2(b)(3)(F), which applies only if “the defendant knowingly engaged in
distribution” in certain circumstances. Their argument appears to be that because they were not
charged with trafficking or distribution, and because the Government did not establish to the jury
-13-
Nos. 19-2151/2153, United States v. Collard, et al.
that they intended to traffic in or knowingly distributed pornography, the court erred in applying
the enhancement. Their appeal is essentially a challenge to judicial fact-finding in sentencing more
generally, although they recognize this practice is permissible.6 Because defendants used file-
sharing software, under this circuit’s precedent, the district court’s findings were not erroneous.
A two-level enhancement for distribution may be applied to a defendant’s sentence when
the defendant has used file-sharing software. See, e.g., United States v. Abbring, 788 F.3d 565,
567 (6th Cir. 2015) (citing cases). This court has upheld the application of the enhancement and
has done so even where the defendant was convicted or pleaded guilty only for crimes of
possession, receipt, or attempted receipt and not for distribution. See id.; see also United States v.
Dunning, 857 F.3d 342, 346 349–50 (6th Cir. 2017). This is because the use of a file-sharing
program is directly related to the sharing and transferring of files, which in turn “equals
distribution.” Dunning, 857 F.3d at 350 (citing Abbring, 788 F.3d at 567). To be sure, previous
cases like Abbring involved a different file-sharing program and a defendant who conceded he
understood how the peer-to-peer software worked, which defendants here have not done.
Dunning, however, took Abbring further, and reinforced the conclusion that the “knowing use of
peer-to-peer software justifies the distribution enhancement” where the defendant has not
presented evidence that he was ignorant of the software’s sharing function. Id.
6
Defendants quote a Congressional Research Services article that identifies various Supreme Court justices who have
expressed that sentencing enhancements based on judicial fact-finding of uncharged conduct may pose constitutional
issues. But beyond extensively quoting the argument and offering the speculative assertion that the Supreme Court
may be inclined to visit this issue, defendants do not present any arguments in support of the proposition that judicial
fact-finding is a violation of their Sixth Amendment rights.
-14-
Nos. 19-2151/2153, United States v. Collard, et al.
Adam and Joseph make no mention of these cases but instead center their argument on the
specific features of Frostwire, presumably in an attempt to show they were ignorant of the
program’s file-sharing features. Defendants refer to a 2011 settlement between the Federal Trade
Commission (FTC) and Frostwire related to Frostwire’s deceptive practices.7 According to the
FTC, Frostwire may have misled users about the software’s file-sharing capabilities, which
resulted in users’ inadvertently sharing personal files.
Even if Frostwire’s deceptive practices were enough to nudge these cases outside
Abbring’s and Dunning’s scope, it is not apparent whether and to what extent Adam or Joseph
were impacted by those practices. Although some versions of the desktop program downloaded
before June 10, 2011, defaulted to automatic file-sharing and misled users “into believing that files
they downloaded . . . would not be shared,” Defendants do not establish they had the affected
versions. Even if defendants had downloaded those versions, it is unlikely that such tech-savvy
users would have been easily deceived or unaware that their computers were sharing files. They
offer only a conclusory assertion that “a user of [their] laptops would have been misled by [the]
software which allowed unintended file-sharing,” an argument that the district court found to strain
credulity considering defendants’ ability to access the dark web and Frostwire through a Tor.
Furthermore, because Adam accessed Playpen in 2014-2015—presumably after Frostwire
7
The FTC issued a press release announcing the settlement, which was based on
charges that [Frostwire’s] software likely would cause consumers to unwittingly
expose sensitive personal files stored on their mobile devices, and that it misled
consumers about which downloaded files from their desktop and laptop
computers would be shared with a file-sharing network. The settlement bars
Frostwire from using default settings that share consumers’ files, requires it to
provide free upgrades to correct the unintended sharing, and bars
misrepresentations about what files its applications will share.
Press Release, Federal Trade Commission, Peer-to-Peer File-Sharing Software Developer Settles FTC Charges (Oct.
11, 2011), https://www ftc.gov/news-events/press-releases/2011/10/peer-peer-file-sharing-software-developer-
settles-ftc-charges.
-15-
Nos. 19-2151/2153, United States v. Collard, et al.
upgraded the software and changed its default settings—Adam’s arguments that he was unaware
of file-sharing become more implausible.
Adam separately challenges the district court’s denial of a reduction under U.S.S.G.
§ 2G2.2b(1), which provides for a two-level reduction if “the defendant’s conduct was limited to
the receipt or solicitation of material involving the sexual exploitation of a minor[] and . . . the
defendant did not intend to traffic in, or distribute, such material.” We have previously held that
“a defendant whose sentence is enhanced under § 2G2.2(b)(3) for distribution is not entitled to a
reduction under § 2G2.2(b)(1).” Shepard, 661 F. App’x at 351 (citing Abbring, 788 F.3d at 567–
68). The district court therefore properly denied Adam’s request for a reduction.
Joseph also objects to a two-level enhancement under § 2G2.2(b)(6), which applies “[i]f
the offense involved the use of a computer or an interactive computer service for the possession,
transmission, receipt, or distribution of the material, or for accessing with intent to view the
material.” But Joseph asserts only that had the district court sustained his objection, his offense
level would have been reduced. He fails to explain how the district court erred in determining that
the conduct involved the use of computers, a remarkable assertion given the computers and
electronic devices attributed to him.
For the foregoing reasons, the convictions and sentences of Adam and Joseph Collard are
affirmed.
-16-