United States v. Charles Borowy ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 09-10064
Plaintiff-Appellee, D.C. No.
v.  3:08-cr-00007-LRH-
CHARLES A. BOROWY, VPC-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted
November 4, 2009—San Francisco, California
Filed February 17, 2010
Before: Betty B. Fletcher, William C. Canby, Jr., and
Susan P. Graber, Circuit Judges.
Per Curiam Opinion
2517
2520 UNITED STATES v. BOROWY
COUNSEL
Michael K. Powell, Assistant Federal Public Defender, Reno,
Nevada, for defendant/appellant Charles A. Borowy.
Elizabeth A. Olson, Assistant United States Attorney, Reno,
Nevada, for plaintiff-appellee United States of America.
OPINION
PER CURIAM:
Defendant Charles A. Borowy appeals the denial of his
motion to suppress and seeks to vacate his guilty plea because
of a violation of Rule 11 of the Federal Rules of Criminal Pro-
cedure. He argues that the evidence recovered by an FBI
agent who accessed his shared files on the peer-to-peer file-
sharing service LimeWire was unconstitutionally obtained
and that the district court should have suppressed this evi-
dence. He argues further that, because he was misinformed as
to the term of supervised release to which he was subject, this
court should vacate his guilty plea. We have jurisdiction
under 28 U.S.C. § 1291 and affirm.
I. Background
On May 3, 2007, Special Agent Byron Mitchell logged
onto LimeWire, a publically available peer-to-peer file-
sharing computer program, to monitor trafficking in child por-
nography. Agent Mitchell conducted a keyword search in
LimeWire using the term “Lolitaguy,” a term known to be
associated with child pornography. From the list of results
UNITED STATES v. BOROWY 2521
returned by this search, Agent Mitchell identified known
images of child pornography using a software program that
verifies the “hash marks” of files and displays a red flag next
to known images of child pornography. At least one of these
files was shared through what was later determined to be
Borowy’s IP address. Using the “browse host” feature of
LimeWire, Agent Mitchell viewed a list of the names of all
of the approximately 240 files being shared from Borowy’s IP
address, several of which were explicitly suggestive of child
pornography and two of which were red-flagged. Agent
Mitchell downloaded and viewed seven files from Borowy’s
IP address, four of which were child pornography. Prior to
downloading the files, Agent Mitchell did not have access to
the files’ contents. Execution of a search warrant resulting
from Agent Mitchell’s investigation led to the seizure of
Borowy’s laptop computer, CDs, and floppy disks. Forensic
examination of these items revealed more than six hundred
images of child pornography, including seventy-five videos.
Borowy moved to suppress this evidence, arguing that
Agent Mitchell’s activities in locating and downloading the
files from LimeWire constituted a warrantless search and sei-
zure without probable cause that violated Borowy’s Fourth
Amendment rights. Borowy argued that because he had pur-
chased and installed a version of LimeWire that allows the
user to prevent others from downloading or viewing the
names of files on his computer and because he attempted to
engage this feature, he had a reasonable expectation of pri-
vacy in the files. However, for whatever reason, this feature
was not engaged when Agent Mitchell downloaded the seven
files from Borowy’s computer, and there was no restriction on
Agent Mitchell’s accessing those files.1 The district court
refused to suppress the evidence, finding that Agent Mitch-
ell’s conduct was not a search under the Fourth Amendment
1
Borowy asserts that this feature was not engaged because rebooting the
computer caused it to reset to its default setting of sharing files. This
explanation is not supported by evidence in the record.
2522 UNITED STATES v. BOROWY
and that Agent Mitchell had probable cause to download the
files.
Borowy conditionally pleaded guilty to possession of child
pornography under 18 U.S.C. § 2252A(a)(5)(B), reserving his
right to appeal the suppression decision. The plea memoran-
dum, the district court, and counsel for both the government
and the defense initially informed Borowy that the maximum
term of supervised release for this crime was not more than
three years. However, at the beginning of Borowy’s sentenc-
ing hearing, the district court and Borowy’s attorney correctly
noted that the relevant statute calls for a period of supervised
release ranging from five years to life. See 18 U.S.C.
§ 3583(k). Borowy concedes that he made no objection at
sentencing that he had been misinformed as to the supervised
release term. Borowy was sentenced to forty-five months of
imprisonment followed by lifetime supervised release.
II. Discussion
A. Motion to Suppress
We review motions to suppress de novo and a trial court’s
factual findings for clear error. United States v. Howard, 447
F.3d 1257, 1262 n.4 (9th Cir. 2006). We review de novo a
district court’s determination of probable cause to search.
United States v. Davis, 530 F.3d 1069, 1077 (9th Cir. 2008).
[1] Under Katz v. United States, 389 U.S. 347 (1967), gov-
ernment conduct qualifies as a search only if it violates a rea-
sonable expectation of privacy. Whether Agent Mitchell
engaged in an unconstitutional search and seizure is largely
controlled by United States v. Ganoe, 538 F.3d 1117, 1127
(9th Cir. 2008), cert. denied, 129 S. Ct. 2037 (2009), which
held that the defendant’s expectation of privacy in his per-
sonal computer could not “survive [his] decision to install and
use file-sharing software, thereby opening his computer to
anyone else with the same freely available program.” This
UNITED STATES v. BOROWY 2523
result is consistent with that of other circuits that have consid-
ered the issue. See United States v. Stults, 575 F.3d 834, 842-
43 (8th Cir. 2009) (citing Ganoe), petition for cert. filed __
U.S.L.W. __ (U.S. Dec. 11, 2009) (No. 09-8153); United
States v. Perrine, 518 F.3d 1196, 1204-05 (10th Cir. 2008).
[2] Borowy argues that his case is distinguishable from
Ganoe because of his ineffectual effort to prevent LimeWire
from sharing his files. However, as in Ganoe, “[t]he crux of
[Borowy’s] argument is that he simply did not know that oth-
ers would be able to access files stored on his own computer”
and that, although Borowy intended to render the files private,
his “technical savvy” failed him. Ganoe, 538 F.3d at 1127.
Borowy, like Ganoe, was clearly aware that LimeWire was a
file-sharing program that would allow the public at large to
access files in his shared folder unless he took steps to avoid
it. See id.; see also United States v. Heckenkamp, 482 F.3d
1142, 1147 (9th Cir. 2007 ) (“[P]rivacy expectations may be
reduced if the user is advised that information transmitted
through the network is not confidential and that [others] may
monitor communications transmitted by the user.”). Despite
his efforts, Borowy’s files were still entirely exposed to public
view; anyone with access to LimeWire could download and
view his files without hindrance. Borowy’s subjective inten-
tion not to share his files did not create an objectively reason-
able expectation of privacy in the face of such widespread
public access. See Ganoe, 538 F.3d at 1127; United States v.
King, 509 F.3d 1338, 1341-42 (11th Cir. 2007) (per curiam).
Because Borowy lacked a reasonable expectation of privacy
in the shared files, Agent Mitchell’s use of a keyword search
to locate these files did not violate the Fourth Amendment.
[3] Borowy also argues that the use of a “forensic software
program” that is unavailable to the general public to confirm
that the files contained child pornography rendered Agent
Mitchell’s conduct an unlawful Fourth Amendment search.
We disagree. Borowy had already exposed the entirety of the
contents of his files to the public, negating any reasonable
2524 UNITED STATES v. BOROWY
expectation of privacy in those files. Cf. California v. Ciraolo,
476 U.S. 207, 213-14 (1986) (finding the use of an aircraft to
observe marijuana plants was not a Fourth Amendment search
as it only revealed information accessible to any member of
the public flying in the airspace); cf. also Kyllo v. United
States, 533 U.S. 27, 40 (2001) (“Where, as here, the Govern-
ment uses a device that is not in general public use, to explore
details of the home that would previously have been unknow-
able without physical intrusion, the surveillance is a ‘search’
. . . .”) (emphasis added). Moreover, the hash-mark analysis
appears to disclose only whether the files in the list that Agent
Mitchell’s keyword search returned were known child por-
nography. See United States v. Jacobsen, 466 U.S. 109, 122-
26 (1984); United States v. Place, 462 U.S. 696, 707 (1983)
(“canine sniff” of luggage left in public place is not a Fourth
Amendment search). In this context, the hash-mark analysis
functioned simply as a sorting mechanism to prevent the gov-
ernment from having to sift, one by one, through Borowy’s
already publically exposed files.2
[4] Finally, Borowy argues, citing Arizona v. Hicks, 480
U.S. 321, 324-26 (1987), that by downloading the seven files
to examine their contents, Agent Mitchell seized the files
without probable cause in violation of the Fourth Amend-
ment. See also Soldal v. Cook County, 506 U.S. 56, 68-69
(1992) (explaining that even in the absence of a search, sei-
zures of property are subject to Fourth Amendment scrutiny).
We need not resolve whether downloading a file constitutes
2
Because we decide only the case in front of us, we reject Borowy’s
argument that our decision will allow unrestricted government access to
all internet communications. We do not rule on whether, if confronted
with different facts—for example, where the information was not already
exposed to the public at large, where the hash-mark analysis might reveal
more than whether a file is known child pornography, or where the gov-
ernment “vacuumed” vast quantities of data indiscriminately—we might
find a Fourth Amendment violation. Here we are presented only with the
limited case of a targeted search of publicly exposed information for
known items of contraband.
UNITED STATES v. BOROWY 2525
a seizure of that file because the district court properly con-
cluded that Agent Mitchell had probable cause. Probable
cause “merely requires that the facts available to the officer
would warrant a man of reasonable caution in the belief that
certain items may be contraband or stolen property or useful
as evidence of a crime.” Texas v. Brown, 460 U.S. 730, 742
(1983) (internal quotation marks and citation omitted). As the
district court noted, the file names for at least five of the files
were explicitly suggestive of child pornography.3 The list of
these file names was obtained by searching for a term known
to be associated with child pornography and two of the files
were red-flagged as known child pornography. In light of this
information, the district court correctly held that Agent Mitch-
ell had probable cause to download the files.
B. Rule 11 Error
We conduct a plain error review of a Rule 11 violation to
which no objection has been made. See United States v. Benz,
472 F.3d 657, 658-59 (9th Cir. 2006). To establish plain error
the defendant must show “(1) error, (2) that is plain, (3) that
affected substantial rights, and (4) that seriously affected the
fairness, integrity or public reputation of the judicial proceed-
ings.” Id. at 659. The government concedes the first two ele-
ments of the plain error analysis. See also Fed. R. Crim. Proc.
11(b)(1)(H), (I). It disputes, however, that this error affected
Borowy’s substantial rights.
[5] To show that the error affected his substantial rights,
Borowy must prove that there is a “reasonable probability
that, but for the error, he would not have entered the plea.”
United States v. Monzon, 429 F.3d 1268, 1272 (9th Cir. 2005)
3
Of the remaining two file names, it appears that the district court may
have been exceedingly charitable as to at least one of them, which
included the abbreviation “PTHC,” in determining that it was not sugges-
tive of child pornography. See Stults, 575 F.3d at 838 (explaining that
“PTHC” is an abbreviation commonly associated with child pornography).
2526 UNITED STATES v. BOROWY
(internal quotation marks omitted). The inquiry includes
“ ‘the overall strength of the Government’s case and any pos-
sible defenses that appear from the record,’ ” “ ‘evidence
tending to show that a misunderstanding was inconsequential
to the defendant’s decision, [and] evidence indicating the rela-
tive significance of other facts that may have borne on his
choice regardless of any Rule 11 error.’ ” Id. (quoting United
States v. Dominguez Benitez, 542 U.S. 74, 84-85 (2004))
(internal quotations marks omitted). “A defendant must thus
satisfy the judgment of the reviewing court, informed by the
entire record, that the probability of a different result is suffi-
cient to undermine confidence in the outcome of the proceed-
ing” but need not prove by a preponderance that the result
would have been different. Dominguez Benitez, 542 U.S. at 83
& n.9 (internal quotation marks omitted).
Our sister circuits have reached divergent results when con-
sidering plain error Rule 11 violations on the basis of the
same misinformation that was provided to Borowy. Compare
United States v. Rivera-Maldonado, 560 F.3d 16, 21 (1st Cir.
2009) (finding this error affected the defendant’s substantial
rights) with United States v. Luken, 560 F.3d 741, 745 (8th
Cir. 2009) (finding the error did not affect the defendant’s
substantial rights). While we are cognizant that the difference
between a maximum three-year term of supervised release
and a term of five years to life is substantial, we conclude
that, on the facts of this case, Borowy has not shown that the
error affected his substantial rights.
Perhaps the most revealing evidence on this point is that,
at sentencing, Borowy cited the court’s authority to impose
lifetime supervised release as a factor the court should con-
sider in reducing his prison term. Thus, rather than seeking to
rectify or minimize the effect of the Rule 11 error by object-
ing at sentencing, arguing for a lesser term of supervised
release, or seeking to withdraw his plea, see United States v.
Littlejohn, 224 F.3d 960, 970-71 (9th Cir. 2000), Borowy
actually attempted to turn the error to his advantage. Further-
UNITED STATES v. BOROWY 2527
more, because the district court correctly denied Borowy’s
suppression motion, the government had ample evidence of
Borowy’s possession of child pornography. See Dominguez
Benitez, 542 U.S. at 85 (“When the record made for a guilty
plea and sentencing reveals evidence, as this one does, show-
ing both a controlled sale of drugs to an informant and a con-
fession, one can fairly ask a defendant seeking to withdraw
his plea what he might ever have thought he could gain by
going to trial.”). Borowy also received a substantial benefit
from his guilty plea, which lowered the sentencing guideline
range to 51 to 63 months rather than 70 to 87 months and
resulted in the dismissal of Count One of the indictment, for
which there is a 60 month statutory minimum sentence, see 18
U.S.C. § 2252A(b)(1); Littlejohn, 224 F.3d at 970-71.
[6] Given the strength of the government’s case, the bene-
fit that Borowy obtained by pleading guilty, and his focus on
negotiating a lesser prison term, we conclude that Borowy has
not demonstrated that the Rule 11 error affected his substan-
tial rights.
AFFIRMED.