Filed: Aug. 15, 2019
Latest Update: Mar. 03, 2020
Summary: Case: 17-11339 Document: 00515078178 Page: 1 Date Filed: 08/15/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-11339 FILED August 15, 2019 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff–Appellee, versus DARYL GLENN PAWLAK, Defendant–Appellant. Appeal from the United States District Court for the Northern District of Texas Before SMITH, WIENER, and ELROD, Circuit Judges. JERRY E. SMITH, Circuit Judge: Daryl Pawlak was c
Summary: Case: 17-11339 Document: 00515078178 Page: 1 Date Filed: 08/15/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-11339 FILED August 15, 2019 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff–Appellee, versus DARYL GLENN PAWLAK, Defendant–Appellant. Appeal from the United States District Court for the Northern District of Texas Before SMITH, WIENER, and ELROD, Circuit Judges. JERRY E. SMITH, Circuit Judge: Daryl Pawlak was co..
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Case: 17-11339 Document: 00515078178 Page: 1 Date Filed: 08/15/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-11339 FILED
August 15, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
DARYL GLENN PAWLAK,
Defendant–Appellant.
Appeal from the United States District Court
for the Northern District of Texas
Before SMITH, WIENER, and ELROD, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Daryl Pawlak was convicted of receipt of child pornography and access
with intent to view child pornography involving a prepubescent minor. Pawlak
asserts that the district court erred in denying his motions to dismiss the
indictment and to suppress evidence, that the evidence was insufficient to sus-
tain his convictions on either count, and that the court clearly erred in applying
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No. 17-11339
a two-level sentencing enhancement for obstruction of justice. Finding no
error, we affirm.
I.
A.
In December 2014, federal law enforcement officials learned that a U.S.-
based Internet protocol (“IP”) address was hosting a website called “PlayPen,”
which contained a significant amount of child pornography. United States v.
Ganzer, 922 F.3d 579, 581 (5th Cir. 2019), petition for cert. filed (July 23, 2019)
(No. 19-5339). The website operated on an anonymity network and was
accessible using publicly available software known as The Onion Router
(“TOR”).
Id.
Unlike the traditional Internet, TOR software anonymizes a user’s
actual IP address (which can be tied to a physical location) by routing the user’s
connection through a series of randomly selected computers on the network.
Id. That feature generally makes it impossible for law enforcement officials to
identify the administrators and users of websites containing child pornogra-
phy, such as PlayPen, without employing other investigative techniques.
Id.
In January 2015, the FBI executed a search warrant and obtained a copy
of the server hosting the PlayPen website, which it transferred to a
government-controlled facility in Virginia.
Id. After obtaining a second war-
rant from a magistrate judge in the Eastern District of Virginia,
id., the FBI
began a thirteen-day sting operation aimed at unmasking the identities of
PlayPen users. 1
1 The government notes that although it “did operate the PlayPen site during this
brief period of time, it took ‘every possible effort to mitigate and prevent any additional phys-
ical abuse to children.’” Such efforts included “remov[ing] a portion of the website that
encouraged members to produce and post new child pornography.”
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The operation centered on the use of specialized malware called the
Network Investigative Technique (“NIT”). Id. “The NIT was a form of malware
that augmented the content sent by Playpen to the computers of Playpen users
with directions instructing those computers to send identifying information to
a computer controlled by the government,”
id., including “the computer’s IP
address and when the NIT determined [it]; a unique identifier for the computer
generated by the NIT; the type of operating system used by the computer and
the operating system’s active username . . . ; the computer’s host name; and
the computer’s media access control,”
id. at 581–82. The government further
explains that
[t]he NIT would not deploy onto a PlayPen user’s computer until
that individual logged into the website (which required them to
have the TOR browser, know the 16-character website address,[ 2]
and enter their login information for PlayPen), accessed a certain
section in the site, and then actually requested content by clicking
on a post in one of the more egregious sections.
B.
Using the NIT, federal agents linked PlayPen user “notsoslow”—later
determined to be Daryl Pawlak—with an IP address associated with a resi-
dence in Johnson County, Texas. The user had been logged into PlayPen for
more than fourteen hours before the NIT deployed on his computer in March
2015, and he had spent an additional hour-and-a-half on PlayPen during the
FBI’s operation of the website. The NIT also returned Pawlak’s computer user-
name (“d.pawlak”), the name of the computer (“Sigma94”), and the computer’s
MAC address.
On October 1, 2015, after obtaining a search warrant for Pawlak’s
residence, FBI agents interviewed Pawlak’s wife. Using the wife’s cell phone,
2 The website address was comprised of “a randomly generated stream of [sixteen]
characters ending in ‘.onion.’”
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Agent Marya Wilkerson called Pawlak and recorded the conversation. On the
call, Pawlak admitted, inter alia, that he had downloaded and viewed child
pornography using laptops from two different employers, had an email address
utilizing the term “notsoslow,” had previously used a work computer with the
name of “Sigma94,” and believed his username on that computer was
“d.pawlak.” Pawlak also acknowledged that the computer (the “Sigma94 com-
puter”) had been in his possession from October 2014 until May 2015, when he
returned it to his former employer, Sigma Cubed following his termination.
In the recorded conversation, Pawlak stated that he had initially viewed
child pornography approximately three or four years earlier while working for
a previous employer. He admitted that he preferred child pornography involv-
ing prepubescent females approximately seven to eleven years old, that he
often accessed such pornography on a website called “Girls Hub,” and that he
had last viewed child pornography about one week before.
Later that day, Pawlak and Agent Wilkerson engaged in a second conver-
sation that was not recorded. Pawlak admitted that he had attempted to delete
the contents of the hard drive on his current work computer (the “Indepen-
dence Oil computer”) but was unable to do so.
The FBI later acquired the Sigma94 computer from Sigma Cubed. Paw-
lak was the first and only employee to use the computer, which had remained
in a sealed box in Sigma Cubed’s offices after he returned it in May 2015.
Following a forensic examination, law enforcement officials discovered several
images of child pornography in the temporary Internet cache of the Sigma94
computer. The presence of the images in the cache demonstrated that the files
came from the Internet, as well as that they were received and stored on the
computer. Federal agents also found evidence of seven other images of child
pornography on the computer.
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In addition, federal agents captured information from when Pawlak
accessed the PlayPen website both before and during the thirteen days it was
operated by the government. Evidence showed that Pawlak clicked on several
posts containing child pornography involving prepubescent female children.
In October 2015, the FBI obtained access to the Independence Oil com-
puter, on which investigators discovered approximately eight hundred images
and four videos of child pornography. Pawlak was charged with receipt of child
pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) (Count One), and access
with intent to view child pornography involving a prepubescent minor, in vio-
lation of 18 U.S.C. § 2252A(a)(5)(B) (Count Two).
Pawlak moved to suppress the evidence obtained using the NIT, as well
as all other evidence discovered as a result of its deployment. He claimed that
the warrant was void ab initio because it violated the scope of the issuing
magistrate judge’s authority under Federal Rule of Criminal Procedure 41(b).
He also moved to dismiss the indictment against him asserting that the gov-
ernment’s operation of the PlayPen website constituted outrageous conduct.
The district court denied both motions.
Following a three-day trial, a jury convicted Pawlak on both counts. At
sentencing, the presentence report recommended a two-level obstruction-of-
justice enhancement relating to Pawlak’s attempt to delete the contents of the
hard drive on his Independence Oil computer. The district court overruled
Pawlak’s objection to the enhancement. The court sentenced Pawlak to 210
months’ imprisonment on each count, to be served concurrently, followed by a
supervised release term of fifteen years.
Pawlak raises five issues on appeal. First, he asserts that the district
court erred in denying his motion to dismiss the indictment based on out-
rageous government conduct. Second, Pawlak avers that the court erred in
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denying his motion to suppress. Third, he contends that the evidence was in-
sufficient to sustain his conviction for access with intent to view child pornog-
raphy involving a prepubescent minor (Count Two). Fourth, Pawlak maintains
that the evidence was insufficient to support a conviction for receipt of child
pornography (Count One). Fifth, Pawlak claims that the district court clearly
erred by applying the U.S.S.G. § 3C1.1 obstruction-of-justice enhancement.
II.
Pawlak avers that the district court erred in denying his motion to dis-
miss. “[W]e review de novo whether outrageous conduct requires dismissal of
an indictment.” United States v. Sandlin, 589 F.3d 749, 758 (5th Cir. 2009).
A.
“The due process clause protects defendants against outrageous conduct
by law enforcement agents.” United States v. Arteaga, 807 F.2d 424, 426 (5th
Cir. 1986). However, “[g]overnment misconduct does not mandate dismissal of
an indictment unless it is so outrageous that it violates the principle of funda-
mental fairness under the due process clause of the Fifth Amendment.” Sand-
lin, 589 F.3d at 758–59 (citation omitted). Consequently, “the outrageous-
conduct defense requires not only government overinvolvement in the charged
crime but a passive role by the defendant as well. A defendant who actively
participates in the crime may not avail himself of the defense.”
Arteaga,
807 F.2d at 427.
We evaluate the government’s conduct “in light of the undercover activ-
ity necessary to the enforcement of the criminal laws.” United States v. Fortna,
796 F.2d 724, 735 (5th Cir. 1986) (citation omitted). The outrageous-conduct
standard is “extremely demanding,” Sand
lin, 589 F.3d at 758, and “a due pro-
cess violation will be found only in the rarest and most outrageous circum-
stances,”
Arteaga, 807 F.2d at 426 (citation omitted).
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B.
Pawlak asserts that, for three reasons, the district court erred in denying
the motion to dismiss. First, he contends that he was a mere passive parti-
cipant in the enterprise because “there is no evidence that [he] posted to any
forums, communicated with others on the [PlayPen] site, shared information,
or in any way produced or uploaded any materials.” In doing so, Pawlak
attempts to distinguish United States v. Venson, 82 F. App’x 330, 332−33 (5th
Cir. 2003) (per curiam), in which we rejected an outrageous-conduct defense in
a case involving child pornography.
Second, Pawlak maintains that, by operating the PlayPen website, the
government aided in the public distribution of child pornography. Therefore,
in addition to offending standards of fairness and decency, the government
violated federal law.
Third, Pawlak states that the government’s actions ignored its internal
policies concerning the investigation of Internet crimes because “the FBI took
no measures whatsoever to control the replication and distribution of pictures
and videos from its undercover website.” He also asserts that the government’s
actions in this case “resulted in the continued victimization of countless
innocent children.” Consequently, Pawlak contends that because he was a
mere passive participant, and the government’s overinvolved conduct was out-
rageous, the court erred in denying the motion to dismiss.
In response, the government maintains that “[t]he district court correctly
denied Pawlak’s motion to dismiss based on alleged outrageous government
conduct given his willing and active participation in the offense.” It offers two
arguments in support of that position.
First, the government emphasizes that a defendant who actively par-
takes in a crime cannot avail himself of the outrageous-conduct defense.
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Consequently, because Pawlak was “an active, willing, and predisposed child-
pornography consumer,” he is not entitled to assert that defense. The govern-
ment points to several Fifth Circuit precedents where, despite an active role
played by the government, we rejected the assertion of the outrageous-conduct
defense because of the defendant’s willing participation. 3
Pawlak actively viewed child pornography for several years before the
FBI’s investigation. Before the government’s operation of the PlayPen website,
Pawlak spent nearly fourteen hours, over a six-month period, logged into the
site. Moreover, he continued to seek out such material even after the FBI’s
PlayPen operation ended. Therefore, the government maintains, the
outrageous-conduct defense is not available.
Second, the government emphasizes that we have never invalidated a
conviction based on the assertion of that defense. It also notes that we seem-
ingly defined the outer limits of permissible government conduct in United
States v. Tobias, 662 F.2d 381 (5th Cir. Unit B Nov. 1981).
In Tobias, the DEA established a fake chemical-supply company and
“placed an advertisement offering over-the-counter sales of chemicals and lab-
oratory equipment.” Id. at 383. The defendant in that case, Thomas Tobias,
placed an order for various chemicals to manufacture cocaine.
Id. Tobias later
tried to cancel the order by telephoning an undercover DEA agent after he
determined that cocaine would be too difficult to manufacture.
Id. Pretending
to be sympathetic, the agent suggested that Tobias manufacture phencyclidine
(“PCP”).
Id. at 383–84. Tobias then asked the agent to send him the chemicals
necessary to make PCP.
Id. at 384. After receiving the chemicals and formula
3See United States v. Ivey, 949 F.2d 759, 769 (5th Cir. 1991); United States v. Evans,
941 F.2d 267, 270–71 (5th Cir. 1991) (per curiam); United States v. Yater,
756 F.2d 1058,
1066 (5th Cir. 1985).
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for PCP, Tobias made more than a dozen calls to the fictitious company for
assistance with manufacturing. Id. The DEA eventually obtained a warrant
and found liquid PCP at Tobias’s residence.
Id.
We rejected Tobias’s assertion of the outrageous-conduct defense, finding
that he “was a predisposed active participant, motivated solely by a desire to
make money.”
Id. at 387. We stressed “that government infiltration of crim-
inal activity is a recognized and permissible means of investigation.”
Id. at 386
(internal quotation marks and citation omitted). Consequently, no due process
violation occurred. See
id. at 387. Nonetheless, we cautioned that the “case
does set the outer limits to which the government may go in the quest to ferret
out and prosecute crimes in this circuit.”
Id.
Against this backdrop, the government maintains that the FBI’s brief
sting operation involving the PlayPen website falls well short of the boundaries
established in Tobias. It notes that “[t]he FBI . . . did not create PlayPen,
and . . . it did not alter the site’s functionality, add additional child pornog-
raphy, or actively solicit new users. Rather, the government simply main-
tained the preexisting structure that Playpen website visitors allegedly used
to distribute and receive child pornography among themselves.” Accordingly,
the government contends it was significantly less active than in Tobias because
it “only took over an existing site and did not solicit new members.” It therefore
urges us to affirm the denial of Pawlak’s motion to dismiss. 4
Pawlak fails to establish either prong associated with the outrageous-
conduct defense. Concerning the requirement that the defendant play a pas-
sive role, the evidence demonstrates that Pawlak was an active consumer of
child pornography both before and after the FBI’s sting operation. Moreover,
4The government stresses that every district court to consider the outrageous-conduct
defense in the context of the FBI’s operation of the PlayPen website has rejected it.
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to access the PlayPen website, a user was required to obtain specialized
software, enter a specific sixteen-character website address, and log in using a
unique username and password. Because Pawlak was an active participant in
the crime, he is not entitled to assert the outrageous-conduct defense on that
ground alone. See Arteaga, 807 F.2d at 427.
Furthermore, the government’s conduct was not outrageous and did not
violate fundamental fairness. Viewing the sting operation “in light of the
undercover activity necessary to the enforcement of the criminal laws,” Fortna,
796 F.2d at 735 (citation omitted), the government’s conduct does not run afoul
of the Fifth Amendment. Here, the FBI received judicial approval to operate
the PlayPen site, and it did so for only thirteen days. During that time, the
FBI sought to mitigate the further exploitation of children by removing the
portion of the site that encouraged members to produce and upload new images
of child pornography.
Ultimately, the sting operation successfully targeted a hidden website
where thousands of users were viewing a significant amount of child pornog-
raphy in a nearly untraceable manner. The operation also rescued hundreds
of children, including dozens in the United States, from sexual abusers. There-
fore, the district court did not err in denying the motion to dismiss.
III.
Pawlak next claims that the district court erred in denying his motion to
suppress. “We review the denial of a motion to suppress in the light most
favorable to the prevailing party.” United States v. Hernandez, 670 F.3d 616,
620 (5th Cir. 2012). “The district court’s factual findings are reviewed for clear
error, and its legal conclusions are reviewed de novo.”
Id. “A finding of fact is
clearly erroneous if we are left with a definite and firm conviction that a mis-
take has been committed.”
Id. (internal quotation marks and citation omitted).
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“We uphold a district court’s denial of a suppression motion if there is any rea-
sonable view of the evidence to support it.” United States v. Contreras,
905 F.3d 853, 857 (5th Cir. 2018) (internal quotation marks and citation
omitted).
A.
“The fact that a Fourth Amendment violation occurred—i.e., that a
search or arrest was unreasonable—does not necessarily mean that the exclu-
sionary rule applies.” Herring v. United States, 555 U.S. 135, 140 (2009). The
Supreme Court has “repeatedly rejected the argument that exclusion is a
necessary consequence of a Fourth Amendment violation.”
Id. at 141. Accord-
ingly, “[w]hen police act under a warrant that is invalid for lack of probable
cause,”
id. at 142, “evidence obtained in objectively reasonable reliance on a
subsequently invalidated search warrant typically should not be excluded.”
Contreras, 905 F.3d at 857 (internal quotation marks and citation omitted).
Moreover, “a warrant issued by a magistrate normally suffices to establish that
a law enforcement officer has acted in good faith in conducting the search.”
United States v. Leon,
468 U.S. 897, 922 (1984) (internal quotation marks and
citation omitted).
Nonetheless, there are four circumstances in which an “officer’s reliance
on the magistrate’s probable-cause determination and on the technical suffi-
ciency of the warrant he issues” is not objectively reasonable. United States v.
Cherna, 184 F.3d 403, 407 (5th Cir. 1999) (citation omitted). First, “if the
magistrate or judge . . . was misled by information in an affidavit that the
affiant knew was false or would have known was false except for his reckless
disregard of the truth.”
Leon, 468 U.S. at 923. Second, if the “magistrate
wholly abandoned his [neutral and detached] judicial role.”
Id. Third, if the
“officer . . . rel[ied] on a warrant [that was] based on an affidavit so lacking in
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indicia of probable cause as to render official belief in its existence entirely
unreasonable.” Id. (internal quotation marks and citation omitted). And
fourth, if the warrant was “so facially deficient—i.e., in failing to particularize
the place to be searched or the things to be seized—that the executing officers
cannot reasonably presume it to be valid.”
Id.
“We employ a two-step process for reviewing a district court’s denial of a
motion to suppress when a search warrant is involved.”
Cherna, 184 F.3d
at 407. First, we analyze “whether the good-faith exception to the exclusionary
rule” applies.
Id. If the exception does apply, we affirm the denial of the
motion to suppress.
Id. If it does not, we review whether “the magistrate had
a substantial basis for” determining that probable cause existed.
Id. (citation
omitted).
B.
Pawlak raises three arguments in support of his contention that the
district court erred in denying his motion to suppress. First, he asserts that
the court erred when it declined to require the testimony of Agent McFarlane,
the affiant for the NIT warrant application, concerning McFarlane’s subjective
intent. Second, Pawlak maintains that the court erroneously concluded that
the subjective intent of government officials was irrelevant because other
courts later found the warrant to be valid.
Third, Pawlak avers that the district court erred because the officers’
reliance on the warrant was not objectively reasonable. Pawlak contends that
In re Warrant, 958 F. Supp. 2d 753 (S.D. Tex. 2013), “put the government on
notice that using a warrant issued by a Magistrate Judge in one district to
execute malware searches in another is not legal.” Consequently, because the
government “was fully aware at least two years before it sought the NIT
Warrant . . . that [Federal Rule of Criminal Procedure] 41 did not permit
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multi-district computer hacking,” its agents’ reliance on the warrant was not
objectively reasonable.
The government responds that Pawlak’s focus on “the subjective intent
of the officers who secured the NIT Warrant” is misplaced. It asserts that the
“good-faith inquiry is confined to the objectively ascertainable question wheth-
er a reasonably well trained officer would have known that the search was
illegal in light of all of the circumstances” (quoting Herring, 555 U.S. at 145).
The government also avers that we may “not attempt an expedition into the
minds of police officers to determine their subjective belief regarding the
validity of the warrant” (quoting United States v. Payne,
341 F.3d 393, 400 (5th
Cir. 2003)). Consequently, because “Pawlak does not point to any of the Leon
factors that would suggest the officers failed to act in good faith,” the govern-
ment posits that his “argument should fail.”
Moreover, although the district court found that the magistrate judge
who initially issued the NIT warrant exceeded the scope of her authority, it
also highlighted that several other district courts had reached the opposite con-
clusion. Therefore, because the matter represented a close legal question, the
government contends that it “did not act improperly in seeking th[e] warrant.”
The government also stresses that because the officers deploying the NIT had
no reason to know that the magistrate judge had erred, their reliance on the
warrant was objectively reasonable.
Lastly, the government carefully distinguishes this case from In re War-
rant. It emphasizes that “the information sought to be seized in In re Warrant
was considerably more extensive and intrusive than the identifying informa-
tion sought in this case,” and it underscores that “a single decision from a mag-
istrate judge in a dissimilar case did not give the government the unambiguous
knowledge that such warrants were impermissible.” Moreover, “that authori-
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ties believed clarification of Rule 41(b) would be helpful does not somehow
prove that they knew the NIT Warrant could not validly issue under the cir-
cumstances of this case.”
Our recent decision in Ganzer effectively compels the conclusion that the
district court did not err in denying Pawlak’s motion to suppress. In that case,
we found that the good-faith exception applied to evidence seized because of
the NIT warrant, even assuming that the magistrate judge in the Eastern Dis-
trict of Virginia exceeded the scope of her authority. Ganzer, 922 F.3d at 587–
90. Moreover, we declined to “construe the government’s efforts to have
Rule 41(b) amended to specifically allow for warrants like the NIT warrant as
an admission that such warrants were not previously allowed, but rather as
an attempt to clarify an existing law’s application to new circumstances.”
Id.
at 589.
This case presents factual issues similar to those in Ganzer. Conse-
quently, because here, as there, “law enforcement officials involved in the issu-
ance and execution of the NIT warrant acted with an objectively reasonable
good-faith belief that their conduct was lawful,” id. at 590 (internal quotation
marks, alteration, and citation omitted), the district court did not err in deny-
ing Pawlak’s motion. Such a “conclusion is consistent with the holdings of each
of our sister circuits to have considered challenges to the NIT warrant.”
Id. 5
IV.
Pawlak contends that the evidence was insufficient on both counts. We
See United States v. Moorehead, 912 F.3d 963, 970–71 (6th Cir. 2019); United States
5
v. Kienast, 907 F.3d 522, 528–29 (7th Cir. 2018); United States v. Henderson,
906 F.3d 1109,
1119–20 (9th Cir. 2018); United States v. Werdene,
883 F.3d 204, 217–18 (3d Cir. 2018);
United States v. McLamb,
880 F.3d 685, 690–91 (4th Cir. 2018); United States v. Levin,
874 F.3d 316, 322–24 (1st Cir. 2017); United States v. Horton,
863 F.3d 1041, 1051–52 (8th
Cir. 2017); United States v. Workman,
863 F.3d 1313, 1317–21 (10th Cir. 2017).
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review de novo Pawlak’s sufficiency claims because he properly preserved the
issues by moving for a judgment of acquittal during trial. United States v.
Moreland, 665 F.3d 137, 148 (5th Cir. 2011). “In deciding whether the evidence
was sufficient, we review all evidence in the light most favorable to the verdict
to determine whether a rational trier of fact could have found that the evidence
established the essential elements of the offense beyond a reasonable doubt.”
United States v. Shum,
496 F.3d 390, 391 (5th Cir. 2007).
A.
Although the government has broad authority to proscribe child pornog-
raphy, this authority is not unlimited. United States v. Williams, 553 U.S. 285,
289 (2008); see also Ashcroft v. Free Speech Coal.,
535 U.S. 234, 251–58 (2002).
In Free Speech Coalition, the Court found that a federal statute banning “the
possession and distribution of any visual depiction that is, or appears to be, of
a minor engaging in sexually explicit conduct, even if it contained only
youthful-looking adult actors or virtual images of children generated by a com-
puter,”
Williams, 553 U.S. at 289 (internal quotation marks and citation
omitted), was “overbroad and unconstitutional,” Free Speech
Coal., 535 U.S.
at 258.
The government notes that following Free Speech Coalition, defendants
in this circuit have challenged their child-pornography convictions by contend-
ing “that the government failed to prove the children depicted in the pornog-
raphy were real, as opposed to ‘virtual,’ children.” We have rejected such a
defense, concluding that “Free Speech Coalition did not establish a broad re-
quirement that the Government must present expert testimony to establish
that the unlawful image depicts a real child.” United States v. Slanina,
359 F.3d 356, 357 (5th Cir. 2004) (per curiam). “The district court, as the trier
of fact . . . , was capable of reviewing the evidence to determine whether the
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Government met its burden to show that the images depicted real children.”
Id. Moreover, “[j]uries are still capable of distinguishing between real and
virtual images.”
Id. (citation omitted).
B.
Count Two charged Pawlak with access with intent to view child por-
nography involving a prepubescent minor in violation of 18 U.S.C.
§ 2252A(a)(5)(B). Pawlak contends that “there was no evidence presented that
the representations of children in the images accessed . . . were actual, real
children,” as opposed to “computer generated or morphed images.” Conse-
quently, because “the court’s charge only allowed for the conviction upon a
finding of child pornography that were images of real or actual children,” the
evidence introduced “was not sufficient to satisfy the elements of this offense.”
The government counters with three points. First, it highlights that we
have stated that images of child pornography are themselves sufficient to es-
tablish that actual children are depicted. In United States v. McNealy,
625 F.3d 858, 865−66 (5th Cir. 2010), a defendant asserted that the factfinder
was incapable of ascertaining whether the charged images showed actual chil-
dren. A government witness testified that he believed that the children
depicted in the images were “real minors,”
id. at 865, but “conceded that he did
not ‘have the ability to look at these images and tell th[e] jury if they’[d] been
altered or not,’”
id.
On appeal, the defendant maintained that the government had failed to
satisfy its burden of showing that the images were real.
Id. We rejected that
contention, concluding that “[n]othing in the record, including the images
themselves, suggests that they are anything other than images of actual pre-
pubescent children and young teenage girls engaged in what [the defendant]
concedes is lewd and lascivious conduct.”
Id. at 866–67. We also highlighted
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that “there is no evidence in the record before us that the state of technology is
such that images of this nature could have been generated using virtual chil-
dren.” Id. at 867. Consequently, “[w]hile it remains the Government’s burden
to show that actual children were depicted, the images themselves sufficed to
authenticate them in this regard.”
Id.
The government also points to testimony from Agent Wilkerson estab-
lishing “that all of the images the jury had seen to that point, including the
Count Two images, and all other images at issue in the investigation of Pawlak,
depicted real children.” Another government official, Special Agent Daniel
Alfin, answered “yes” when asked whether the Count Two images “‘appear[ed]
to’ be real children.”
Ultimately, viewing the evidence in the light most favorable to the ver-
dict, the evidence was sufficient to sustain Pawlak’s conviction on Count Two.
Here, as was the case in McNealy, Pawlak points to no evidence in the record
demonstrating that the Count Two images were anything other than what the
government contended they were: child pornography involving actual pre-
pubescent children. See id. at 866–67. Additionally, though it was “the [g]ov-
ernment’s burden to show that actual children were depicted,” here, as in
McNealy, “the images themselves sufficed to authenticate them in this regard.”
Id. at 867. Consequently, this evidence, coupled with the testimony of Wilker-
son and Alfin, was sufficient to support the verdict on this count.
C.
Count One charged Pawlak with receipt of child pornography in violation
of 18 U.S.C. § 2252A(a)(2)(A). Pawlak notes that the three images serving as
the basis for Count One “were thumbnails found in the temporary internet
files, cache location on the Sigma94 computer.” Pawlak therefore contends
that “[t]he problem with the sufficiency of evidence for these images . . . is that
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the government has presented insufficient evidence to show where these items
came from; when they were put on the computer; and who actually put the
items on the computer.”
Pawlak remarks that although he retained possession of the Sigma94
computer while employed by Sigma Cubed, “other employees had access to this
computer for extended periods.” Moreover, Pawlak acknowledges that he
“made some admissions in a telephone conversation with Special Agent Wil-
kerson,” but avers that “this conversation never established that he . . . viewed
images on the Playpen website.” Consequently, he asserts that because “[t]he
government did not present evidence that these specific images were know-
ingly downloaded or received by Pawlak,” the evidence was insufficient to sus-
tain a conviction on this count.
Conversely, the government maintains that Pawlak’s confession “to
being a long-time consumer of child pornography, . . . a PlayPen member, and
. . . particularly interested in images . . . involving prepubescent female chil-
dren,” coupled with the extensive forensic evidence tying him to the images,
was sufficient to establish that he knowingly received the images. The
government cites two precedents from this circuit in support of its position. In
United States v. Winkler, 639 F.3d 692, 693 (5th Cir. 2011), we affirmed a
defendant’s conviction for knowing receipt of child pornography based on
images found in his temporary Internet cache. We determined that “[t]he mere
presence of the files in the cache is certainly proof that the files were received,”
id. at 699 (citation omitted), and we noted that the “inquiry is highly fact
specific and not tied to whether the files at issue were found in a cache
directory or, alternatively, in the user controlled portion of the hard drive,”
id.
Ultimately, we concluded that other evidence introduced by the government
established “a pattern of child pornography receipt and possession that could
also have caused a rational jury to conclude that [the defendant] knowingly
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received the files.” Id.
Moreover, in United States v. Larman, 547 F. App’x 475 (5th Cir. 2013)
(per curiam), we affirmed a conviction for receipt of child pornography where
images were found in the defendant’s temporary Internet cache and he
admitted to federal agents that he had downloaded child pornography.
Id.
at 479–81. The government stresses that—similar to the defendant in
Larman—“Pawlak confessed to a longstanding interest in and consumption of
child pornography.” As part of his confession—which the government played
at trial—“Pawlak indicated he spent approximately half an hour per week
consuming child pornography and admitted to accessing it on internet sites.”
He “also admitted to having the username ‘notsoslow’ on the PlayPen website
and to having a computer named ‘Sigma94’ with a username of ‘d.pawlak’ while
working at Sigma Cubed, tying him to the computer which downloaded the
images.”
The government contends that “[l]ike the defendant in Winkler, the evi-
dence showed Pawlak was a member of a website dedicated to child pornog-
raphy and that he consumed a great deal of other child pornography, evincing
a pattern of child-pornography receipt.” Moreover, “like the defendant in Lar-
man, Pawlak confessed to obtaining child pornography over the internet.”
Ultimately, the evidence was more than sufficient to sustain the con-
viction on Count One. Images of child pornography were found on Pawlak’s
computer in his temporary Internet cache. Pawlak admitted, in a recorded
conversation, to be being a long-time consumer of child pornography, and he
was a member of PlayPen, a website dedicated to child pornography. Accord-
ingly, viewed in the light most favorable to the verdict, this evidence sufficed
to establish Pawlak’s knowing receipt of child pornography.
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V.
Pawlak maintains that the district court clearly erred in applying the
obstruction enhancement. Because Pawlak specifically objected, we review the
“district court’s interpretation or application of the Sentencing Guidelines” de
novo. United States v. Adam, 296 F.3d 327, 334 (5th Cir. 2002). We review the
court’s factual findings, including a finding of obstruction of justice, for clear
error.
Id. “Where a factual finding is plausible in light of the record as a whole,
it is not clearly erroneous. Unless left with the definite and firm conviction
that a mistake has been committed, [we] will not deem the district court’s find-
ing to be clearly erroneous.”
Id. (internal quotation marks and citation
omitted).
A.
Section 3C1.1 of the U.S. Sentencing Guidelines, a sentencing adjust-
ment for obstructing or impeding the administration of justice, provides that
[i]f (1) the defendant willfully obstructed or impeded, or attempted
to obstruct or impede, the administration of justice with respect to
the investigation, prosecution, or sentencing of the instant offense
of conviction, and (2) the obstructive conduct related to (A) the
defendant’s offense of conviction and any relevant conduct; or (B)
a closely related offense, increase the offense level by 2 levels.
The application notes to the obstruction enhancement emphasize that, inter
alia, “destroying or concealing . . . evidence that is material to an official inves-
tigation or judicial proceeding (e.g., shredding a document or destroying led-
gers upon learning that an official investigation has commenced or is about to
commence), or attempting to do so” qualifies as “the type[] of conduct to which
this adjustment applies.” U.S.S.G. § 3C1.1 cmt. n.4(D).
B.
Pawlak avers that, for two reasons, the district court clearly erred in
applying the obstruction enhancement. First, as Pawlak reads it, application
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note 4(D) supports his position that his conduct does not amount to obstruction
of justice because the attempt to erase his hard drive occurred contemporane-
ously with his arrest. See id. (stating an exception, under some circumstances,
for conduct that “occurred contemporaneously with arrest” and was not “a
material hindrance” to the investigation). Second, Pawlak contends that the
mere act of searching for and downloading software designed to wipe a com-
puter hard drive, without deploying it, does not constitute obstruction of jus-
tice. Consequently, because “he did not actually deploy the program and his
conduct did not materially hinder the investigation and prosecution of the
case,” the court clearly erred.
In response, the government asserts that “[t]he district court did not
clearly err in enhancing Pawlak’s offense level for obstruction of justice be-
cause the evidence, including his confession, established that he downloaded a
program meant to erase a computer hard drive containing a cache of child
pornography.” The government highlights that “after the FBI commenced its
search-warrant execution . . . Pawlak searched for a program meant to wipe
his hard drive.” Pawlak later admitted to an FBI agent that he was unable to
execute the program because he lacked an external drive necessary to utilize
it. After examining the Independence Oil computer, a forensic computer expert
confirmed that the software had been downloaded and installed on the same
morning that the FBI executed a search warrant at Pawlak’s residence. The
government therefore contends that Pawlak fails “to show any error, much less
clear error, in the district court’s application of the obstruction enhancement
based upon the concrete steps he took towards deleting material evidence from
his computer after his conversation with” the FBI agent executing the search
warrant.
The court did not clearly err in applying the obstruction enhancement.
The evidence demonstrates, and Pawlak readily admits, that he took affirma-
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tive steps to download a program aimed at permanently deleting the contents
of the Independence Oil computer hard drive, including more than eight hun-
dred images and four videos of child pornography. The successful deployment
of that program would have deleted material evidence from the hard drive,
thereby hindering the investigation. See U.S.S.G. § 3C1.1 cmt. n.4(D). That
Pawlak was ultimately unsuccessful in deploying it is irrelevant: A defendant
also qualifies for the enhancement when he merely attempts to obstruct jus-
tice. Id. § 3C1.1; see also
id. § 3C1.1 cmt. n.4(D).
Moreover, Pawlak’s attempt to obstruct justice was not contemporaneous
with his arrest. Instead, he attempted to wipe his hard drive shortly after he
learned that federal agents were searching his house. Cf. id. § 3C1.1 cmt.
n.4(D). Consequently, the district court did not clearly err in applying the two-
level obstruction enhancement.
AFFIRMED.
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