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U.S. v.

PAVULAK 651
Cite as 700 F.3d 651 (3rd Cir. 2012)

(7) jury had sufficient evidence to find that


UNITED STATES of America defendant had specifically intended to
v. produce child pornography; and
Paul E. PAVULAK, Appellant. (8) defendants prior state conviction for
No. 113863. unlawful sexual contact in the second
degree constituted conviction relating
United States Court of Appeals, to sexual exploitation of children.
Third Circuit.
Affirmed.
Argued Sept. 13, 2012.
Filed: Nov. 21, 2012.
Background: Defendant was convicted in 1. Obscenity O282(2)
the United States District Court for the
Probable cause for warrant to search
District of Delaware, Sue L. Robinson, J.,
for child pornography required more than
of possessing and attempting to produce
conclusion by affiant that sought-after im-
child pornography, attempting to entice a
ages constituted child pornography; al-
minor, and committing crimes related to
though defendant had prior child-molesta-
his status as sex offender. Defendant ap-
tion convictions, they were not sufficient to
pealed.
even to hint at probable cause as to wholly
Holdings: The Court of Appeals, Smith, separate crime of possessing child pornog-
Circuit Judge, held that: raphy absent any allegation of correlation
(1) probable cause for warrant to search between those two types of crimes, and
for child pornography required more other details in affidavit did not increase
than conclusion by affiant that sought- likelihood that sought-after images con-
after images constituted child pornog- tained lascivious depictions of nude minors
raphy; or minors engaging in sexual acts.
(2) affidavit in support of warrants to U.S.C.A. Const.Amend. 4; 11 Wests Del.C.
search for child pornography was not 1109.
so lacking in indicia of probable cause
as to render executing officers belief 2. Criminal Law O1139, 1158.12
unreasonable; On appeal from the denial of a motion
(3) pre-trial Franks hearing was not re- to suppress, a district courts factual find-
quired; ings are reviewed for clear error, and de
(4) singular, ambiguous remark by prose- novo review applies to its application of the
cutor in closing argument in inviting law to those factual findings. U.S.C.A.
jury to momentarily focus on big pic- Const.Amend. 4.
ture did not improperly invite jury to
cumulate evidence of separate charges; 3. Obscenity O281
(5) prosecutors discussion of harm caused When faced with a warrant application
by production of child pornography did to search for child pornography, a magis-
not constitute plain error; trate must be able to independently evalu-
(6) evidence was sufficient to support de- ate whether the contents of the alleged
fendants convictions for production images meet the legal definition of child
and attempted production of child por- pornography. U.S.C.A. Const.Amend. 4;
nography; 18 U.S.C.A. 2251, 2252A.
652 700 FEDERAL REPORTER, 3d SERIES

4. Obscenity O281 viewing images of child pornography at


When faced with a warrant application work, and affiant knew that some of that
to search for child pornography, a magis- information had been corroborated and
trate can independently evaluate whether that it had been circulated in police memo-
the contents of the alleged images meet randum and reviewed before warrants had
the legal definition of child pornography: been sought. U.S.C.A. Const.Amend. 4; 11
(1) by personally viewing the images; (2) Wests Del.C. 1109.
by having the search-warrant affidavit pro-
vide a sufficiently detailed description of 8. Criminal Law O392.38(1)
the images; or (3) by having the search- Suppression of the fruit of a search
warrant application provide some other that was not supported by probable cause
facts that tie the images contents to child is not justified when officers act in the
pornography. U.S.C.A. Const.Amend. 4; reasonable belief that their conduct does
18 U.S.C.A. 2251, 2252A. not violate the Fourth Amendment.
5. Obscenity O282(1) U.S.C.A. Const.Amend. 4.
A probable-cause affidavit in support 9. Criminal Law O392.38(7)
of a warrant application to search for child
pornography must contain more than the Ordinarily, the mere existence of a
affiants belief that an image qualifies as warrant suffices to prove that an officer
child pornography; identifying images as conducted a search in good faith.
child pornography will almost always in- U.S.C.A. Const.Amend. 4.
volve, to some degree, a subjective and
10. Criminal Law O392.38(7)
conclusory determination on the part of
the viewer, and such inherent subjectivity A police officers reliance on a search
is precisely why the determination should warrant is not reasonable when: (1) the
be made by a judge, not the affiant. magistrate issued the warrant in reliance
U.S.C.A. Const.Amend. 4. on a deliberately or recklessly false affida-
vit; (2) the magistrate abandoned his judi-
6. Searches and Seizures O117
cial role and failed to perform his neutral
When faced with a search warrant and detached function; (3) the warrant was
application, a tip conveying a contempora- based on an affidavit so lacking in indicia
neous observation of criminal activity of probable cause as to render official be-
whose innocent details are corroborated lief in its existence entirely unreasonable;
can establish probable cause of that crimi- or (4) the warrant was so facially deficient
nal activity. U.S.C.A. Const.Amend. 4. that it failed to particularize the place to
7. Criminal Law O392.38(12) be searched or the things to be seized.
Affidavit in support of warrants to U.S.C.A. Const.Amend. 4.
search for child pornography was not so
lacking in indicia of probable cause as to 11. Criminal Law O392.38(10)
render executing officers belief unreason- The threshold for establishing a
able, and thus good faith exception to sup- search warrant affidavit was so lacking in
pression requirement applied, where affi- indicia of probable cause as to render the
davit had been prepared using first-hand executing officers belief unreasonable, so
information from defendants fellow em- as to preclude application of the good faith
ployee who had provided reliable and cur- exception to suppression of the fruit of a
rent knowledge of defendant obtaining and search that was not supported by probable
U.S. v. PAVULAK 653
Cite as 700 F.3d 651 (3rd Cir. 2012)

cause, is a high one. U.S.C.A. Const. to momentarily focus on big picture did
Amend. 4. not improperly invite jury to cumulate evi-
dence of separate charges of possessing
12. Obscenity O290
and attempting to produce child pornogra-
Pre-trial Franks hearing was not re-
phy, attempting to entice a minor, and
quired on basis that underlying conduct of
committing crimes related to his status as
defendants prior child-molestation convic-
a sex offender, and thus did not deny
tions had occurred earlier than stated in
defendant due process, since remark had
search warrant affidavit, or on basis of
been ameliorated by presumption that jury
alleged error in affidavit regarding work
followed its instruction to consider evi-
location where defendant had been viewing
dence for each charge separately, and evi-
child pornography, since those convictions
dence against defendant on each count was
did not affect reasonableness or probable-
overwhelming. U.S.C.A. Const.Amend. 5;
cause determinations, and fact of defen-
18 U.S.C.A. 2251(a, e), 2252A(a)(5)(B),
dants viewing of child pornography was
2422(b).
not affected by where office was located.
U.S.C.A. Const.Amend. 4. 17. Constitutional Law O4629
13. Searches and Seizures O112 To determine whether a prosecutors
The Fourth Amendment prohibits the closing argument denied a defendant due
intentional or reckless inclusion of a mate- process, a court must weigh the prosecu-
rial false statement, or omission of materi- tors conduct, the effect of the curative
al information, in a search-warrant affida- instructions, and the strength of the evi-
vit. U.S.C.A. Const.Amend. 4. dence. U.S.C.A. Const.Amend. 5.

14. Searches and Seizures O112 18. Criminal Law O1037.1(1)


In order for a defendant to be entitled Review of a prosecutors statements is
to challenge the truthfulness of facts al- for plain error where the defendant did
leged in support of a search-warrant appli- not object to the alleged misconduct.
cation, he must first (1) make a substantial
preliminary showing that the affiant know- 19. Constitutional Law O4629
ingly or recklessly included a false state- Criminal Law O2123
ment in or omitted facts from the affidavit, Prosecutors discussion of harm
and (2) demonstrate that the false state- caused by production of child pornography,
ment or omitted facts are necessary to the which paralleled Congresss reasons for
finding of probable cause. U.S.C.A. Const. criminalizing production and attempted
Amend. 4. production of child pornography, did not
15. Searches and Seizures O112 violate due process, in defendants trial of
The Fourth Amendment is not violat- possessing and attempting to produce child
ed when officers choose to omit informa- pornography, attempting to entice a minor,
tion of questionable veracity from their and committing crimes related to his sta-
search-warrant applications. U.S.C.A. tus as a sex offender. U.S.C.A. Const.
Const.Amend. 4. Amend. 5; 18 U.S.C.A. 2251(a, e),
2252A(a)(5)(B), 2422(b).
16. Constitutional Law O4629
Criminal Law O2123 20. Obscenity O210(12)
Singular, ambiguous remark by prose- Evidence was sufficient to support de-
cutor in closing argument in inviting jury fendants conviction for knowingly possess-
654 700 FEDERAL REPORTER, 3d SERIES

ing child pornography, where images re- 25. Criminal Law O1134.35, 1134.54
covered from laptop computer at his work Court of Appeals directly evaluated
location depicted child pornography, laptop district courts denial of defendants re-
had only single password-protected user quest for post-trial Franks hearing, since
account and contained photos of defendant, defendant predicated his motion for new
defendant claimed that laptop was his com- trial on his entitlement to Franks hearing.
puter, and police recovered laptop from U.S.C.A. Const.Amend. 4; Fed.Rules Cr.
part of office in which he was living. 18 Proc.Rule 33, 18 U.S.C.A.
U.S.C.A. 2251, 2252A.
26. Searches and Seizures O199
21. Criminal Law O1139, 1144.13(3),
A defendant is entitled to a post-trial
1159.2(7), 1159.6
Franks hearing only if he (1) made a sub-
A sufficiency-of-the-evidence claim is stantial preliminary showing that the affi-
reviewed de novo; in doing so, a court ant knowingly or recklessly included a
examines the totality of the evidence, both false statement in or omitted facts from
direct and circumstantial, and interprets the affidavit, and (2) showed that the false
the evidence in the light most favorable to statements or omitted facts were neces-
the government as the verdict winner, and sary to the finding of probable cause.
if all the pieces of evidence, taken togeth- U.S.C.A. Const.Amend. 4.
er, make a strong enough case to let a jury
find the defendant guilty beyond a reason- 27. Infants O1672
able doubt, then a court must uphold the Sentencing and Punishment O95
jurys verdict. Defendants prior state conviction for
22. Criminal Law O44 unlawful sexual contact in the second de-
gree constituted conviction relating to sex-
The crime of attempt requires the
ual exploitation of children, as required to
specific intent to commit a crime and a
support enhancement of defendants sen-
substantial step towards the commission of
tence for production of material depicting
that crime.
sexual exploitation of children. 18
23. Infants O1751 U.S.C.A. 2241(c), 2251(e), 3559(e)(1); 11
Jury had sufficient evidence to find Wests Del.C. 768.
that defendant had specifically intended to
28. Criminal Law O1139
produce child pornography, as required for
De novo review applies to questions of
conviction on charge of producing child
constitutional and statutory interpretation.
pornography, where defendant had re-
peatedly insisted that woman display her 29. Constitutional Law O4728
minor childs vagina via live webcam feed Jury O34(6)
during their Internet chat session and de-
Sentencing and Punishment O322.5
fendant described various ways that he
intended to sexually abuse that child in the The Fifth Amendments Due Process
future. 18 U.S.C.A. 2251(a). Clause and Sixth Amendments Jury Trial
Guarantee require any fact, other than the
24. Criminal Law O1156(1) fact of a prior conviction, that increases
Normally, the denial of a motion for a the penalty for a crime beyond the pre-
new trial is reviewed for abuse of discre- scribed statutory maximum to be submit-
tion. Fed.Rules Cr.Proc.Rule 33, 18 ted to a jury and proved beyond a reason-
U.S.C.A. able doubt. U.S.C.A. Const.Amends. 5, 6.
U.S. v. PAVULAK 655
Cite as 700 F.3d 651 (3rd Cir. 2012)

30. Sentencing and Punishment O313 Before: SMITH, and CHAGARES,


Circuit Judges and ROSENTHAL,
Under the modified categorical ap-
District Judge.*
proach for determining the character of a
conviction, a judge may consider only
OPINION
those facts that were necessarily admitted
by the defendant in his prior criminal pro- SMITH, Circuit Judge.
ceeding, that is, facts found in the charging The Delaware State Police obtained
document, written plea agreement, tran- search warrants for Paul Pavulaks email
script of plea colloquy, and any explicit account and workplace after receiving in-
factual finding by the trial judge to which formation that he was viewing child por-
the defendant assented. nography on his workplace computers.
The evidence that was seized confirmed
31. Jury O34(6) Pavulaks involvement in child pornogra-
If Apprendi does not apply when de- phy, and a jury subsequently convicted
termining the character of a conviction, him of possessing and attempting to pro-
then a district judge is free to make any duce child pornography, attempting to en-
factual findings related to sentencing, just tice a minor, and committing crimes relat-
as he is when finding facts that trigger ed to his status as a sex offender. The
enhancements under the United States District Court sentenced him to life im-
Sentencing Guidelines (USSGs) that would prisonment on the attempted-production
not increase the defendants maximum conviction and to 120 months imprison-
statutory sentence. ment on the remaining counts.
Pavulak now contends that the District
32. Statutes O212.6 Court should have suppressed the evidence
Ordinarily, a court assumes that Con- obtained pursuant to the warrants. He
gress intended each phrase to have a par- argues that the magistrate lacked probable
ticular, nonsuperfluous meaning when it cause to issue the search warrants. Those
used two different phrases. search warrants were supported by an affi-
davit that pointed to Pavulaks prior child-
molestation convictions and labeled the im-
ages, which had been reported by infor-
mants, simply as child pornography. No
Jack A. Meyerson, Matthew L. Miller further details concerning the images con-
[Argued], Meyerson & ONeill, Philadel- tent appeared in the affidavit. We con-
phia, PA, for Appellant. clude that the affidavit was insufficient to
establish probable cause for child pornog-
Bonnie L. Kane, Andrew M. McCor- raphy. However, because the officers rea-
mick, United States Department of Jus- sonably relied on the warrants in good
tice, Criminal Division, Public Integrity faith, we agree that the District Court
Section, Washington, DC, Edward J. properly denied suppression. Pavulaks
McAndrew [Argued], Office of United remaining challenges to his convictions and
States Attorney, Wilmington, DE, for Ap- life sentence are meritless. We will there-
pellee. fore affirm his convictions and sentence.

* The Honorable Lee H. Rosenthal, United District Court for the Southern District of
States District Judge for the United States Texas, sitting by designation.
656 700 FEDERAL REPORTER, 3d SERIES

I. police that Pavulak was planning a trip to


the Philippines where he intended to meet
A. Factual Background
women. Detective Jones followed up with
This is not Paul Pavulaks first encoun- Mack, who not only confirmed his wifes
ter with the criminal law. He has twice tip but also provided additional details.
pled guilty to unlawful sexual contact in According to Mack, Pavulak was using an
the second degree under Delaware law unregistered Yahoo! email address (Pavy
once in June 1998 and again in April 2005. 224@yahoo.com), was accessing sexually
The first conviction was for molesting the suggestive images of children on comput-
eleven-year-old daughter of his live-in girl- ers at the CTI office, and had scheduled a
friend from September 1997 through Janu- month-long trip to the Philippines between
ary 1998. As a result, the Delaware Supe- December 2008 and mid-January 2009.
rior Court sentenced Pavulak to four Detective Jones also contacted another
years probation. While on probation for CTI employee, Jahdel Riggs, who con-
that conviction during the summer of 1999, firmed all of Macks information except
Pavulak repeated similar conduct with the Pavulaks email address.
nine-year-old daughter of his new girl-
Through investigation, the Delaware
friend, resulting in a second conviction in
State Police successfully corroborated
2005 and two years in prison.1
some of the information provided by Mack
These state convictions required Pavu- and Riggs. As confirmed by federal
lak to register as a sex offender and to agents and Pavulaks updated Delaware
keep his residential, work, and email ad- Sex Offender Registry address, Pavulak
dresses up to date with the Delaware State was in the Philippines from early Decem-
Police. After being released from prison ber 2008 to January 2009. By subpoena-
on July 1, 2008, Pavulak purported to do ing Yahoo!, the police also discovered that
exactly that. He informed the Delaware the Pavy224@yahoo.com email account
State Police that he was unemployed and was created by a Mr. Paul Pavy, was
staying at the Fairview Inn in Wilmington, accessed from the CTI office on December
Delaware. Throughout the remainder of 8, 2008, and was accessed from the Philip-
the year, Pavulak maintained this account pines from December 10, 2008, through
of unemployment and hotel living. January 6, 2009. The police further veri-
But the Delaware State Police soon dis- fied the existence and location of the CTI
covered that Pavulak was not telling the office, its ownership by Pavulaks adult
whole story. In October 2008, Delaware children, and his Delaware state convic-
State Police Detective Robert Jones re- tionsleading the police to obtain an ar-
ceived a hotline call from Erica Ballard. rest warrant for Pavulaks failure to regis-
Ballard informed the police that her hus- ter his employment at CTI.
band Curtis Mack, an employee at Con- Armed with the informants information
crete Technologies, Inc. (CTI), had ob- and the results of their investigation, De-
served Pavulak working and living part- tective Nancy Skubik of the Delaware
time at the CTI office since his release, State Police Child Predator Task Force
information that his sex-offender registra- applied to the Delaware Superior Court
tion did not include. Ballard also told the for New Castle County for warrants to

1. The record does not identify the reason for second conviction.
the delay between Pavulaks conduct and the
U.S. v. PAVULAK 657
Cite as 700 F.3d 651 (3rd Cir. 2012)

search the CTI office and the Pavy224@ The laptop was locked by a single pass-
yahoo.com account for child pornography. word-protected Windows user account.
In her probable-cause affidavit 2 for both The second computer, a HewlettPackard
warrant applications, Detective Skubik de- desktop, was recovered from the recep-
scribed the two tips, Pavulaks prior Dela- tionist area. Each computer contained
ware convictions from 1998 and 2005, and thousands of images of child pornography.
the information corroborated by her inves- Yet the search uncovered more than just
tigation. The affidavit relayed that Riggs the sought-after images of child pornogra-
had seen Pavulak viewing child pornogra- phy. Evidence recovered from the com-
phy of females between 16 and 18 years puters revealed that, in August 2008, Pa-
old and Mack had seen images of fe- vulak used his Yahoo! username Pavy224
males between the ages of 12 to 15 years to create a profile on www.cherryblossoms.
on Pavulaks computer that had been sent com, a website allegedly used by sex tour-
to Pavulak via email. But the affidavit ists for soliciting prostitutes in the Philip-
neither defined what was meant by the pines. This website led him to Ara Duran,
label child pornography nor provided a twenty-two-year-old Philippine woman
any further details about the images con- and mother of two-year-old Jane Doe.4
tent. Emails that Pavulak sent Duran showed
Based on that affidavit, the Delaware his immediate interest in the age and sex
of Durans child. Pavulak told Duran (via
Superior Court issued search warrants on
email) that he was looking for a wife with
January 13, 2009, for the CTI office and
an aggressive and very active open sex
Yahoo! account. Early in the morning of
desire 5 similar to his own and who was
January 19, Delaware State Police officers,
willing to experiment with different possi-
including Detectives Jones and Skubik, ex-
bilities about sex. On October 1, Duran
ecuted the search warrant at CTIs office.
responded, believing them to be a good
The police arrested Pavulak, the only per-
match and indicating that she bought
son present in the CTI office, based on
more panties for herself and her daugh-
outstanding warrants for failure to regis-
ter. Pavulak looked forward to dressing
ter his employment at CTI and his Yahoo!
Duran and her daughter. The two made
email address. After receiving his Mi-
plans to meet around Christmas during
randa rights,3 Pavulak admitted that he
Pavulaks trip to the Philippines. He re-
worked for CTI and used the Pavy224@
served a hotel room for their meeting,
yahoo.com email address while in the Phil-
preferring the matrimonial room as his
ippines. first choice because it had a king size
During the search, officers seized two bed in which the three of them would fit
computers. The first, a HewlettPackard fine. While awaiting their rendezvous,
laptop, was found in a rear office where Pavulak reall[y] want[ed] to see pictures
Pavulak appeared to be living; a bed, his of Duran and Jane Doea request that
clothing, and toiletries were in the room. Duran obliged.

2. The affidavits for both search-warrant appli- 4. Like the parties, we refer to the daughter as
cations are identical in all aspects relating to Jane Doe to protect her privacy.
the probable-cause determination, so we refer
to them as though they were a single affidavit. 5. Any typographical errors in text messages
or chat logs appear in Pavulaks original com-
3. See Miranda v. Arizona, 384 U.S. 436, 444,
munications.
86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
658 700 FEDERAL REPORTER, 3d SERIES

While Pavulak was in the Philippines, he Pavulak: if u play with her pussy a lot
visited several women he met online and then by the time i get there she will
spent time with Duran and Jane Doe. He want me to play with her
took photographs of Duran and Jane Doe, Duran: i caught her many times hon
some of which depicted Duran or Pavulak always playing with her pussy
nude or engaging in sexual activity. He Pavulak: i wish she would just spread
also recorded videos of his sexual activity her legs and let me lick her
with Duran, one of which portrays Duran
Duran: sometimes when I catch her
performing oral sex on Pavulak. That vid-
playing her pussy, I spank her
eo, as Pavulak tells her, will be [Jane
Pavulak: why
Does] training video so Duran can show
her how to [perform oral sex]. Pavulak: u should encourage her
Duran: shes so young playing with it
During Pavulaks return to the United
Pavulak: n o she is not
States, he sent Duran several text mes-
Duran: I think 5 will be better
sages about including Jane Doe in their
sexual activities. He hope[d] that Jane Duran: 5 years old
Doe would like it too; asked Duran to Pavulak: she plays with it because it
teach her everything; indicated he feels good to her
would perform oral sex on Jane Doe and Pavulak: [t]here is no age
instructed Duran to do so in the interim Pavulak: on when
so she likes it; 6 and wondered if Du- Duran: her pussy now is very red
rans really good instruction of Jane Doe Pavulak: look up on the computer
would allow Jane Doe to perform oral sex young children masturbation
on Pavulak next December. Pavulak be-
Pavulak: and u will find articcles about
lieved that Duran could make it all work
it
out for the three of [them] to have a
Duran: ok i will look up in the computer
happy sex life. Eager to see them again
tomorrow hon
soon, Pavulak scheduled an online webcam
chat with Duran for the morning of Janu- When Pavulak expressed hope that he
ary 18. could see Jane Doe use a vibrator, Duran
assured him that he would. Pavulak also
That morning, Pavulak chatted with Du- hoped to engage in sexual activity with
ran using the laptop from the CTI office. Jane Doe:
They discussed Jane Does involvement in Pavulak: u think i can finger fuck her at
their sexual activities. We regret the need age 5
to recite in detail several of these chats,
Duran: well..just try hon
but the content is necessary to some of the
conclusions we reach in our discussion be- Duran: just use ur small finger hon
low. Duran: i think it will be fit to her pussy
Pavulak: hope she likes to suck cock
Duran: I showed [Jane Doe] how to
hon
masturbate hon
Duran: at age 8 she will know if ur cock
* * * taste good or not
Pavulak: does she try to do it * * *

6. This text message remained in Pavulaks unsent message folder.


U.S. v. PAVULAK 659
Cite as 700 F.3d 651 (3rd Cir. 2012)

Pavulak: im going to shoooot cum in her Pavulak: ok


mouth at age three when i come back The Delaware State Police recovered
there these chat logs between Pavulak and Du-
Duran: hehehehe ran from the laptop computer. In addi-
Pavulak: u just tell her to suck it out of tion, the police discovered that twenty-nine
me hon of the child pornography images and forty-
* * * two images of Pavulak and Duran were
Pavulak: u just keep showing her the accessed and edited using Windows Photo
movie how u suck me Gallery between September 13, 2007, and
November 22, 2008.
Pavulak: so she will know
He continued to insist that Duran show the B. Procedural Background
training video to Jane Doe and tell [Jane
Doe] that it feels so good to perform oral With the discovery of those chat logs in
sex. Pavulak then tried to get Duran to addition to the child-pornography images,
display her and Jane Does vaginas via the the United States took over Pavulaks
webcam: prosecution. In April 2009, the United
States indicted Pavulak on five counts in
Pavulak: take ur panties off hon and
the United States District Court for the
show me ur pussy
District of Delaware: (1) failing to update
Duran: i only show my pussy to u hon
his registration as a sex offender in viola-
Pavulak: well im waiting hon tion of 18 U.S.C. 2250(a); (2) possessing
Duran: not now hon child pornography in violation of 18 U.S.C.
Duran: tuesday 2252A(a)(5)(B); (3) attempting to pro-
Pavulak: why duce child pornography in violation of 18
Pavulak: hehe U.S.C. 2251(a) and (e); (4) attempting to
coerce and entice a minor in violation of 18
Pavulak: no now
U.S.C. 2422(b); and (5) committing a
Duran: i try
felony offense involving a minor while reg-
Pavulak: and [Jane Does] too istered as a sex offender in violation of 18
* * * U.S.C. 2260A.
Pavulak: nice thanks Before trial, Pavulak moved to suppress
Pavulak: cum for me the evidence seized from the CTI office
Pavulak: hehe and his Yahoo! account. He made two
Pavulak: now [Jane Does] arguments: first, that the search warrants
Duran: hehee were not based on probable cause because
Duran: diapers on they did not provide the magistrate 7 with
any details about what the alleged child-
Pavulak: oh
pornography images depicted, and second,
Duran: u cant see [Jane Does] pussy
that he was entitled to a hearing under
Pavulak: well maybe sometime soon Franks v. Delaware, 438 U.S. 154, 15556,
Duran: yup 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to
Duran: morning u can see her naked challenge the veracity of several facts al-
hon leged in the probable-cause affidavit. The

7. We use the term magistrate generally, al judiciary authorized to issue warrants


referring to any member of the state or feder- (though in this case, a state issuing authority).
660 700 FEDERAL REPORTER, 3d SERIES

District Court denied his motion. The mum. The District Court rejected that
Court concluded that there was probable argument. Because Pavulaks maximum
cause, and even if there were not, the sentence was life imprisonment, the Court
officers reasonably relied on the warrants reasoned that Apprendi did not apply.
in good faith. The Court also denied Pa- Consequently, the District Court found
vulaks request for a Franks hearing after that Pavulaks prior convictions triggered
determining that Pavulak did not make a mandatory life imprisonment under
substantial preliminary showing that any 3559(e) for his attempted-production
misstatements or omissions affected the conviction and sentenced him accordingly.
probable-cause analysis. As to his other counts, the District Court
Pavulak proceeded to trial in September sentenced Pavulak to a consecutive term of
2010. After a six-day trial, the jury found 120 months imprisonment for committing
him guilty on all counts. In January 2011, a felony offense involving a minor while
Pavulak moved for a judgment of acquittal registered as a sex offender and 120
on all counts under Federal Rule of Crimi- months imprisonment for the remaining
nal Procedure 29 based on insufficient evi- counts to run concurrently with each other
dence. In addition, Pavulak argued that and the attempted-production count.
Macks and Riggss trial testimony was Pavulak timely appealed both his convic-
inconsistent with the information they pro- tions and life sentence.8
vided for the search-warrant affidavit.
And this inconsistency, according to Pavu-
II.
lak, justified a post-trial Franks hearing to
challenge the veracity of Macks and [1, 2] According to Pavulak, the affida-
Riggss tips in the affidavit, leaving the vit submitted in support of the search-
search warrants without probable cause warrant applications did not establish
and ultimately entitling Pavulak to a new probable cause because it lacked any de-
trial under Rule 33. The District Court tails about what the alleged images of child
denied these motions. pornography depicted. On appeal from
Pavulaks pre-sentence report (PSR) the denial of a motion to suppress, we
gave rise to several objections. As to Pa- review a district courts factual findings for
vulaks attempted-production conviction, clear error, and we exercise de novo re-
the Probation Office advised that his prior view over its application of the law to those
Delaware convictions subjected him to factual findings. United States v. Coles,
mandatory life imprisonment under 18 437 F.3d 361, 365 (3d Cir.2006). Here, we
U.S.C. 3559(e) as a repeat sex offender. cannot say that the affidavit provided a
Pavulak objected to this recommendation, substantial basis for the magistrates
arguing that his maximum statutory sen- conclusion that there was a fair probabili-
tence was fifty years and that Apprendi v. ty of evidence of child pornography in
New Jersey, 530 U.S. 466, 490, 120 S.Ct. the CTI office and Pavulaks Yahoo! ac-
2348, 147 L.Ed.2d 435 (2000), thus re- count at the time of the search. United
quired a jury to determine whether his States v. Vosburgh, 602 F.3d 512, 526 (3d
prior Delaware convictions could justify Cir.2010) (quoting Illinois v. Gates, 462
any increase beyond that fifty-year maxi- U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d

8. The District Court had jurisdiction under 18 vulaks appeal under 28 U.S.C. 1291.
U.S.C. 3231. We have jurisdiction over Pa-
U.S. v. PAVULAK 661
Cite as 700 F.3d 651 (3rd Cir. 2012)

527 (1983)). But suppression is ultimately affidavit stated that Mack and Riggs had
inappropriate because the officers relied seen Pavulak viewing child pornography
on the warrants in good faith. of females between twelve and eighteen
years old, though the affidavit did not pro-
[3, 4] When faced with a warrant appli-
vide any further details about what the
cation to search for child pornography, a
images depicted. Third, officers were able
magistrate must be able to independently
to corroborate Pavulaks ownership of the
evaluate whether the contents of the al-
Yahoo! email account, his trip to the Phil-
leged images meet the legal definition of
ippines, and his presence at the CTI office.
child pornography. New York v. P.J. Vid-
eo, 475 U.S. 868, 874 n. 5, 106 S.Ct. 1610, Despite our great deference to the
89 L.Ed.2d 871 (1986). That can be ac- magistrates determination, Gates, 462
complished in one of three ways: (1) the U.S. at 236, 103 S.Ct. 2317, these pieces of
magistrate can personally view the images; information do not establish probable
(2) the search-warrant affidavit can pro- cause to believe that the images contained
vide a sufficiently detailed description of child pornography. The label child por-
the images; or (3) the search-warrant ap- nography, without more, does not present
plication can provide some other facts that any facts from which the magistrate could
tie the images contents to child pornogra- discern a fair probability that what is
phy. United States v. Miknevich, 638 depicted in the images meets the statutory
F.3d 178, 183 (3d Cir.2011); see also Vos- definition of child pornography and com-
burgh, 602 F.3d at 527 (holding that proba- plies with constitutional limits. The affida-
ble cause supported a warrant where the vit does not describe, for instance, whether
affidavit tied the images of child pornogra- the minors depicted in the images were
phy to the defendant using his IP address, nude or clothed or whether they were
a fairly unique identifier[ ]). engaged in any prohibited sexual act as
In this case, the search-warrant applica- defined by Delaware law. As we said in
tions alleged that Pavulak was dealing in Miknevich, that kind of insufficiently de-
child pornography in violation of 11 Del. tailed or conclusory description of the
Code 1109. That statute prohibits images is not enough. 638 F.3d at 183.
transmitting, receiving, and possessing de- Presented with just the label child por-
pictions of a child engaging in a prohibit- nography, the most the magistrate could
ed sexual act or the simulation of such an infer was that the affiant concluded that
act. 11 Del.Code 1109. A prohibited the images constitute child pornography.
sexual act includes a wide range of sexual [5] The problem with that inference is
activity, including nudity TTT depicted for that identifying images as child pornogra-
the purpose of sexual gratification of any phy will almost always involve, to some
individual who may view the depiction as degree, a subjective and conclusory deter-
well as lascivious exhibition of the geni- mination on the part of the viewer, and
tals or pubic area of any child. Id. such inherent subjectivity is precisely
1103(e). why the determination should be made by
To show that evidence of Pavulaks deal- a judge, not the affiant. United States v.
ing in child pornography existed at the Brunette, 256 F.3d 14, 18 (1st Cir.2001).
CTI office and in his Yahoo! account, the Otherwise, we might indeed transform
affidavit relied on three pieces of informa- the [magistrate] into little more than the
tion. First, Pavulak had two prior convic- cliche rubber stamp. Doe v. Groody, 361
tions for child molestation. Second, the F.3d 232, 243 (3d Cir.2004). Other circuits
662 700 FEDERAL REPORTER, 3d SERIES

agree that a probable-cause affidavit must obtained a warrant to search for child
contain more than the affiants belief that pornography. Id. We upheld that warrant
an image qualifies as child pornography. because the defendants deliberate attempt
United States v. Doyle, 650 F.3d 460, 474 to download child pornography established
(4th Cir.2011) (holding that there was no a fair probability that he possessed other
probable cause where the affidavit did not images of child pornography. Id. The
provide anything more than a description probable-cause determination there, unlike
of the photographs as depicting nude chil- this case, was not based on the affiants
dren ); Brunette, 256 F.3d at 18 (holding knowledge that the defendant possessed
that there was no probable cause where an child pornography, so there were no illicit
affidavit involved an affiants legal conclu- depictions to describe in the affidavit. Id.
sion parroting the statutory definition of So, too, in United States v. Simpson, 152
child pornography absent any descriptive F.3d 1241 (10th Cir.1998). There, the affi-
support and without an independent re- davit described the defendants agreement
view of the images by a magistrate). to send a computer diskette with numer-
ous scenes of prepubescent children under
The government cites several cases for
the age of thirteen to an undercover offi-
the proposition that the label child por-
cer in exchange for a videotape containing
nography, by itself, is sufficient. All but
scenes of child pornography. Id. at 1246
one of those cases, however, fall far short
47. Finally, the governments reliance on
of supporting the governments argument.
United States v. Grosenheider, 200 F.3d
Although the affidavits in Miknevich and
321 (5th Cir.2000), and United States v.
Vosburgh did not describe the contents of Budd, 549 F.3d 1140 (7th Cir.2008), is un-
the images, the circumstances of those helpful. Those cases do not specify what
cases required no such description. In information was presented in the affida-
Miknevich, the affidavit identified the con- vits.
tents of the computer file as child pornog-
That leaves the governments position
raphy through a sexually explicit and high-
dependent entirely on United States v.
ly descriptive file name referring to the
Grant, 490 F.3d 627 (8th Cir.2007). In
ages of the children and implying that they
Grant, the Eighth Circuit upheld a war-
were masturbating. 638 F.3d at 184. The
rant to search for child pornography based
files digital fingerprint also marked it as
on an officers conclusion that images ob-
one known to contain child pornography.
served by an informant met the statutory
Id. at 185. We upheld that warrant, rea-
definition of child pornography. Id. at
soning that the file name was explicit and
630, 632. We decline to adopt the Eighth
detailed enough so as to permit a reason-
Circuits approach. Magistratesnot affi-
able inference of what the file is likely to
ants or officersbear the responsibility of
depict. Id. No such indication is present determining whether there exists a fair
in this case. probability that the sought-after images
Vosburgh involved a defendant who tried meet the statutory and constitutional defi-
to download a link to a video described on nitions of child pornography. Cf. P.J. Vid-
the website as depicting a four-year-old eo, 475 U.S. at 87677, 106 S.Ct. 1610
performing oral sexa video that con- (reviewing the search-warrant affidavit to
tained only gibberish because it had been ensure that the magistrate was given
planted by law enforcement. 602 F.3d at more than enough information to conclude
517. The officer tracked the download that there was a fair probability that the
attempt to the defendants computer and movies satisfied the first and third ele-
U.S. v. PAVULAK 663
Cite as 700 F.3d 651 (3rd Cir. 2012)

ments of the statutory definition of ob- images met the legal definition of child
scenity (emphasis added)). In any event, pornography under Delaware law.
we believe the Supreme Courts decision in
P.J. Video, together with our own prece- [6] Likewise, the successful corrobora-
dent in Vosburgh and Miknevich, compel tion of certain details about Pavulaks oth-
us to require more than a conclusion by an er activities does not save the warrants.
affiant that the sought-after images consti- To be sure, a tip conveying a contempo-
tute child pornography. raneous observation of criminal activity
Nor does combining the label child por- whose innocent details are corroborated
nography with the rest of the information can establish probable cause of that crimi-
in the affidavit produce something greater nal activity. United States v. Torres, 534
than the sum of its parts. Pavulaks prior F.3d 207, 211 (3d Cir.2008) (quoting Unit-
child-molestation convictions are not suffi- ed States v. Wheat, 278 F.3d 722, 735 (8th
cient to establishor even to hint at Cir.2001)). But the details corroborated in
probable cause as to the wholly separate this casePavulaks email account, his trip
crime of possessing child pornography ab- to the Philippines, and residence and em-
sent any allegation of a correlation be- ployment at the CTI officedid not in-
tween the two types of crimes. Virgin crease the likelihood that the sought-after
Islands v. John, 654 F.3d 412, 419 (3d images contained lascivious depictions of
Cir.2011). That correlation between the nude minors or minors engaging in sexual
two crimes is the missing linchpin that acts prohibited by Delaware law. As a
differentiates this case from the Eighth result, the label child pornography
Circuits decision in United States v. Col- without any details about what the images
bert, 605 F.3d 573, 57778 (8th Cir.2010). depict or any other connection to child
There, the defendant was pushing a five- pornographyis beyond the outer limits of
year-old girl (whom he did not know) on a probable-cause territory.
playground swingset while talking to her
about movies and videos the man had at [710] Even though the warrants in
his home. John, 654 F.3d at 422 (describ- this case transgressed that boundary, the
ing Colbert, 605 F.3d at 575). Based on evidence should not be suppressed because
that information, officers obtained a war- the officers relied on the warrant in good
rant to search his home for child pornogra- faith. Suppression is not justified when
phy. Colbert, 605 F.3d at 57576. The officers act in the reasonable belief that
Eighth Circuit upheld the warrant, con- their conduct d[oes] not violate the Fourth
cluding that the combination of the defen- Amendment. United States v. Leon, 468
dants specific desire to watch movies at U.S. 897, 918, 104 S.Ct. 3405, 82 L.Ed.2d
home with an unrelated five-year-old girl 677 (1984). Ordinarily, the mere exis-
and his contemporaneous attempt to en- tence of a warrant TTT suffices to prove
tice her established probable cause to be- that an officer conducted a search in good
lieve those movies contained child pornog- faith. United States v. Stearn, 597 F.3d
raphy. Id. By contrast, Detective Skubiks 540, 561 (3d Cir.2010) (quoting United
affidavit did not link Pavulaks prior acts States v. Hodge, 246 F.3d 301, 30708 (3d
of child molestation to the sought-after Cir.2001)). Yet there are situations in
images. See John, 654 F.3d at 422 (distin- which, although a neutral magistrate has
guishing Colbert on this basis). His crimi- found probable cause to search, a lay offi-
nal history thus does not provide any addi- cer executing the warrant could not rea-
tional reason to believe that these specific sonably believe that the magistrate was
664 700 FEDERAL REPORTER, 3d SERIES

correct. Id. Those four rare circum- single piece of stale evidence. See United
stances occur when: States v. Zimmerman, 277 F.3d 426, 437
(1) the magistrate issued the warrant in (3d Cir.2002). And it does not rely on an
reliance on a deliberately or reck- uncorroborated or unreliable anonymous
lessly false affidavit; tip. See United States v. Williams, 3 F.3d
(2) the magistrate abandoned his judi- 69, 74 (3d Cir.1993).
cial role and failed to perform his Rather, the affiant (also one of the exe-
neutral and detached function; cuting officers) knew that the affidavit had
(3) the warrant was based on an affida- been prepared using first-hand informa-
vit so lacking in indicia of probable tion from Mack, a fellow employee who
cause as to render official belief in provided reliable and current knowledge of
its existence entirely unreasonable; Pavulaks activities at the CTI officein-
or formation that was confirmed by another
employee, Riggs. The affiant also knew
(4) the warrant was so facially deficient
that some of the information Mack and
that it failed to particularize the
Riggs provided had been corroborated and
place to be searched or the things to
that this information had been circulated
be seized.
in a police memorandum and reviewed be-
Id. at 561 & n. 19 (internal quotation fore the warrants were sought. In short,
marks and citations omitted). Here, Pavu- the officers reasonably relied on the war-
lak invokes only the third exceptionthat rant even though the supporting affidavit
the affidavit was so lacking in indicia of did not contain details about the content of
probable cause as to render the executing the images.
officers belief unreasonable.9
And their reliance on the warrant de-
[11] The threshold for establishing spite the lack of those details is defensible
this exception is a high one, Messer- in light of the state of Circuit law at the
schmidt v. Millender, U.S. , 132 time. Hodge, 246 F.3d at 309. The war-
S.Ct. 1235, 1245, 182 L.Ed.2d 47 (2012), rants were sought and issued in 2009, but
and Pavulak has not overcome that burden the cases leading us to conclude that the
here. The affidavit in this case is not a affidavit was insufficientVosburgh, John,
bare bones affidavit. It does not rely on and Miknevichwere not decided until
an officers unsupported belief that proba- 2010 and 2011. In fact, the affidavits
ble cause exists. See United States v. allegations would have been sufficient in
Ritter, 416 F.3d 256, 263 (3d Cir.2005); see the Eighth Circuit at the time. See Grant,
also Gates, 462 U.S. at 239, 103 S.Ct. 2317 490 F.3d at 630, 632 (upholding a search
(identifying the affidavits in Nathanson v. warrant based on an officers conclusion
United States, 290 U.S. 41, 54 S.Ct. 11, 78 that a witnesss description of the images
L.Ed. 159 (1933), and Aguilar v. Texas, met the definition of child pornography
378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 under the state statute).
(1964), as bare bones affidavits because Pavulak counters that the good-faith ex-
each contained only an officers belief that ception is inapplicable because the affiant,
probable cause existed without providing Detective Skubik, was also involved in exe-
any factual details). It does not rely on a cuting the search. That is not the law.

9. To the extent Pavulak intends to invoke arguing that he was entitled to a Franks
the first exception to good faiththat the hearing, we reject that argument for the rea-
magistrate issued the warrant in reliance on sons set forth in Parts III and VI.
a deliberately or recklessly false affidavitby
U.S. v. PAVULAK 665
Cite as 700 F.3d 651 (3rd Cir. 2012)

To be sure, we have acknowledged that it quest for a pre-trial Franks hearing. The
is somewhat disingenuous to find good Fourth Amendment prohibits the inten-
faith based on a paltry showing of proba- tional or reckless inclusion of a material
ble cause, particularly where the affiant is false statement (or omission of material
also one of the executing officers. Zim- information) in a search-warrant affidavit.
merman, 277 F.3d at 438. Similarly, the United States v. Yusuf, 461 F.3d 374, 383
Supreme Court has observed that an offi- 84 (3d Cir.2006). In Franks, the Supreme
cer who both prepared the search-warrant
Court held that a defendant may be enti-
application and carried out the search was
tled to challenge the truthfulness of facts
familiar enough with the warrant to have
alleged in support of a search-warrant ap-
noticed its deficiency upon even a cursory
plication. Franks, 438 U.S. at 16465, 98
reading or just a simple glance. Groh
v. Ramirez, 540 U.S. 551, 564, 124 S.Ct. S.Ct. 2674. The right to a Franks hearing
1284, 157 L.Ed.2d 1068 (2004). Those ob- is not absolute, however. The defendant
servations, however, simply reinforce the must first (1) make a substantial prelimi-
longstanding rule that paltry affidavits nary showing that the affiant knowingly
preclude good faith. Neither the Supreme or recklessly included a false statement in
Court nor this court has created a new or omitted facts from the affidavit, and (2)
exception to good faith based entirely on demonstrate that the false statement or
the identity of the executing officer, and omitted facts are necessary to the finding
Pavulak fails to cite any court that has of probable cause. Yusuf, 461 F.3d at
interpreted the Supreme Courts observa- 38384.
tion in Groh so broadly. The officers rea-
sonably relied on the warrants in good We have not yet identified the standard
faith and the District Court correctly de- of review for a district courts denial of a
nied Pavulaks motion to suppress. request for a Franks hearing, and our
sister circuits are divided on the correct
III. approach.10 See United States v. Falso,
[1214] Pavulak also claims that the 544 F.3d 110, 126 n. 21 (2d Cir.2008)
District Court erred by denying his re- (recognizing split); United States v. Bec-

10. The Fourth, Fifth, and Ninth Circuits em- 563, 565 (2d Cir.2009) (reviewing factual
ploy a mixed standard, reviewing legal deter- findings supporting the denial of a Franks
minations de novo and any supporting factual hearing for clear error), and United States v.
findings for clear error. See United States v. One Parcel of Property Located at 15 Black
Allen, 631 F.3d 164, 171 (4th Cir.2011); Unit- Ledge, 897 F.2d 97, 100 (2d Cir.1990) (same),
ed States v. Martin, 332 F.3d 827, 833 (5th with United States v. Falso, 544 F.3d 110, 126
Cir.2003); United States v. ChavezMiranda, n. 21 (2d Cir.2008) (Sotomayor, J.) (question-
306 F.3d 973, 979 (9th Cir.2002). By con- ing the propriety of clear-error review and
trast, the First, Sixth, and Seventh Circuits noting that the Second Circuit has not ex-
review a district courts decision for clear plain[ed] why that was the appropriate stan-
error, though it is unclear to what extent that dard). Meanwhile, the Eighth Circuit has
clear-error review maps onto the Fourth, carved its own path, reviewing the district
Fifth, and Ninth Circuits mixed standard. courts decision for abuse of discretion. See
See United States v. Smith, 576 F.3d 762, 764 United States v. Kattaria, 553 F.3d 1171, 1177
(7th Cir.2009); United States v. Reiner, 500 (8th Cir.2009) (en banc) (per curiam). The
F.3d 10, 14 (1st Cir.2007); United States v. Eleventh Circuit and D.C. Circuit have not yet
Stewart, 306 F.3d 295, 304 (6th Cir.2002). decided what standard to use. See United
The Second Circuit has apparently sided with States v. Becton, 601 F.3d 588, 594 (D.C.Cir.
mixed review, though then-Judge Sotomayor 2010) (bypassing the need to adopt a stan-
questioned the validity of that choice. Com- dard); United States v. Sarras, 575 F.3d 1191,
pare United States v. Cahill, 355 Fed.Appx. 1219 n. 37 (11th Cir.2009) (same, though
666 700 FEDERAL REPORTER, 3d SERIES

ton, 601 F.3d 588, 594 (D.C.Cir.2010) (cit- The false statements Pavulak identifies
ing United States v. Dale, 991 F.2d 819, are no more availing. He challenges para-
84344 n. 44 (D.C.Cir.1993) (per curiam)) graph 4 of the affidavit, which stated that
(same). We conclude that this case does Pavulak was viewing child pornography in
not require us to enter the fray. Even October 2008 in CTIs office located at
under de novo review, none of the alleged 270 Quigley Blvd, New Castle DE 19720.
errors identified by Pavulak would have According to Pavulak, CTIs office was in
changed the probable-cause determination. Newport, Delaware, at that time and did
Pavulak first says the affidavit omitted not relocate to New Castle until later that
crucial information: although indicating month. See Appellants Br. at 51. That
that his prior Delaware convictions oc- mistake, though, does not undermine the
curred in 1998 and 2005, the affidavit did existence of probable cause.11 The import
not explain that the conduct underlying of that information was that Pavulak was
both of those convictions occurred be- viewing child pornography in CTIs only
tween 1997 and 1999. This half-truth, Pa- officewherever it was locatedusing
vulak says, was calculated to portray CTIs computers and using his online Ya-
[him] as a persistent threat even though hoo! account. See, e.g., United States v.
at the time of the affidavit[,] he had not CorralCorral, 899 F.2d 927, 934 (10th Cir.
committed an offense for roughly 10 1990) (holding that inclusion of an inno-
years. Appellants Br. at 50. Yet when cent error about the defendants address
we add this counterfactual information to in the affidavit was insufficient to satisfy
the affidavit, it does not change our prob- the defendants burden under Franks ).
able-cause determination. Yusuf, 461 This alleged misstatement did not meet
F.3d at 388 n. 12 (The omitted informa- Pavulaks burden.
tion is introduced into the affidavit in or-
der to determine whether the omission [15] Finally, the officers internal
was material.). As we concluded earlier, memorandum stated that Pavulak molest-
Pavulaks prior convictions of child moles- ed the daughter of his Russian wifea
tation did not establish probable cause for statement Pavulak claims is false because
the wholly separate crime of possessing his Russian wife did not have a daughter.
child pornography. John, 654 F.3d at See Appellants Br. at 52. Using this
419; see supra Part II. Given that the statement to challenge the search warrant,
convictions themselves do not change ei- however, turns Franks on its head. The
ther the reasonableness or probable-cause internal memorandum was not submitted
determinations, when his underlying con- in support of the search-warrant applica-
duct occurred is similarly irrelevant. tion, and this statement about a daughter
Consequently, Pavulak has failed to show of his Russian wife was not mentioned in
that there would have been no probable the probable-cause affidavit. See Oral
cause but for the omission of when his Arg. Fr. at 8, 38. If Franks means any-
prior conduct occurred. See United thing, it means that the Fourth Amend-
States v. Frost, 999 F.2d 737, 743 (3d ment is not violated when officers choose
Cir.1993). to omit information of questionable veraci-

noting that a district courts decision to deny 11. Pavulak does not argue that the warrant
an evidentiary hearing on a motion to sup- authorized or resulted in a search of the
press is normally reviewed for abuse of dis- wrong location.
cretion).
U.S. v. PAVULAK 667
Cite as 700 F.3d 651 (3rd Cir. 2012)

ty from their search-warrant applications. the jurisdictional requirement (the second


That is precisely what Franks encourages element). The prosecutor then turned to
and exactly what the officers did here. In the third element, relying on Pavulaks
sum, Pavulak was not entitled to a pre- failure to update his registration while liv-
trial Franks hearing. ing in and employed at the CTI office.
See JA616a (Now, the problem for the de-
IV. fendant is that he never registered that
[1618] Pavulak further claims that address, that CTI address, as either a
the prosecutors closing argument denied place of employment or a place that he
him due process. Donnelly v. DeChristo- was living. (emphasis added)); see
foro, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 JA615a31a (arguing that Pavulak was liv-
L.Ed.2d 431 (1974). To determine if that ing and working at the CTI office). The
is true, we must weigh the prosecutors prosecutor thus argued that Pavulaks
conduct, the effect of the curative instruc- time at the CTI office, not his Las Vegas
tions and the strength of the evidence. trip, required him to update his SORNA
Moore v. Morton, 255 F.3d 95, 107 (3d registration.
Cir.2001) (citing Darden v. Wainwright, Second, the prosecutors momentary fo-
477 U.S. 168, 182, 106 S.Ct. 2464, 91 cus on the big picture did not improperly
L.Ed.2d 144 (1986)). Where, as here, the invite the jury to cumulate the evidence of
defendant did not object to the alleged the separate charges. The prosecutor be-
misconduct, we review the prosecutors gan his closing argument by telling the
statements for plain error. United States jury that Pavulak had been charged with
v. Lee, 612 F.3d 170, 193 (3d Cir.2010). four different crimes and then discussed
Although Pavulak complains that three the law and evidence for each count sepa-
of the prosecutors statements infected his rately. See JA612a, 614a (inviting the jury
trial, we detect no fatal infirmity. First, to walk through the charges and the evi-
Pavulak claims that the prosecutor im- dence that proves the defendant guilty of
properly relied on his four-day trip to Las each of them); see id. (discussing Count
Vegas as the basis for the failure-to-up- 1); SA300 (discussing Count 4), 321 (dis-
date charge. That argument mischarac- cussing Count 3), 32526 (discussing Count
terizes the record. To prove that Pavulak 2). As he was wrapping up, the prosecu-
violated the Sex Offender Registration and tor made the following comment:
Notification Act (SORNA) by failing to The other thing you see in the presenta-
update his registration, the prosecutor had tion from the defense is a divide and
to show that Pavulak (1) was a sex offend- conquer strategy. They take four dif-
er required to register under SORNA who ferent crimes and they want to separate
(2) traveled in interstate or foreign com- them and they want you to look at each
merce after SORNAs enactment and (3) one with blinders on. They dont want
knowingly failed to update his sex-offender you to look at the big picture, because
registration as required by SORNA. See the big picture, folks, is really ugly for
United States v. Pendleton, 636 F.3d 78, Mr. Pavulak. Same [modus operandi].
83 (3d Cir.2011) (citing 18 U.S.C. Although this comment is where Pavulak
2250(a)). After pointing out Pavulaks places the weight of his improper-cumula-
status as a sex offender (the first element), tion argument, this comment cannot shoul-
the prosecutor relied on Pavulaks trips to der that load. Such a single, ambiguous
Las Vegas and the Philippines to satisfy remarkameliorated by our presumption
668 700 FEDERAL REPORTER, 3d SERIES

that the jury followed its instruction to Congress has banned any person from
consider the evidence for each charge sep- producing, distributing, receiving, or
arately, see United States v. Edmonds, 80 possessing an image of child pornogra-
F.3d 810, 825 (3d Cir.1996), and the over- phy.
whelming evidence against Pavulak on
These statements parallel Congresss rea-
each countcannot constitute plain error.
sons for criminalizing the production and
United States v. Riley, 621 F.3d 312, 339
attempted production of child pornogra-
(3d Cir.2010) (The type of counsel miscon-
phy. See 18 U.S.C. 2251. Besides, this
duct that warrants granting a new trial is
explanation preempted Pavulaks argu-
not generally a single isolated inappropri-
ment that Jane Does brief nudity on a
ate comment, but rather repeated conduct
webcam would not have meaningfully
that permeate[s] the trial. (citation omit-
harmed her. See R. 84 at 80; Appellants
ted)); see also United States v. Brown, 254
Br. at 46 (calling Pavulaks actions minor,
F.3d 454, 465 (3d Cir.2001) ([A] court
to the point of approaching triviality). In
should not lightly infer that a prosecutor
short, none of the prosecutors remarks
intends an ambiguous remark to have its
constitute plain error.
most damaging meaning or that a jury,
sitting through a lengthy exhortation, will
draw that meaning from the plethora of V.
less damaging interpretations. (citation [20, 21] Pavulak also challenges wheth-
omitted)). er the District Court erred by denying his
[19] Third, the prosecutors discussion motion for judgment of acquittal based on
of the harm caused by production of child the sufficiency of the evidence supporting
pornography was unobjectionable. The his attempted-production and possession
prosecutor stated: convictions.12 We review a sufficiency-of-
As the thousands of images of child por- the-evidence claim de novo. United States
nography on defendants computers v. Flores, 454 F.3d 149, 154 (3d Cir.2006)
prove, physical and digital images can (citing United States v. Brodie, 403 F.3d
live on indefinitely. And think about the 123, 133 (3d Cir.2005)). In doing so, we
story behind each of those pictures. examine the totality of the evidence,
The day before he was arrested, the both direct and circumstantial, and inter-
defendant tried to have [Duran] put pret the evidence in the light most favor-
[Jane Doe] on the Webcam, exposing able to the government as the verdict win-
her vagina. He could have [recorded] ner. United States v. Starnes, 583 F.3d
that image, Detective Willey told us. If 196, 206 (3d Cir.2009) (quoting United
so, wed have yet another image of child States v. Miller, 527 F.3d 54, 60, 62 (3d
pornography, another file that memori- Cir.2008)). If all the pieces of evidence,
alizes the actual sexual abuse of a real taken together, make a strong enough case
child, and the story in this case, the to let a jury find [the defendant] guilty
story that you heard last week, would beyond a reasonable doubt, then we must
lie behind that image forever, because uphold the jurys verdict. Brodie, 403
each image memorializes the sexual ex- F.3d at 134 (quoting United States v. Cole-
ploitation of an actual child. Thats why man, 811 F.2d 804, 807 (3d Cir.1987)).

12. On appeal, Pavulak does not challenge the maining convictions.


sufficiency of the evidence supporting his re-
U.S. v. PAVULAK 669
Cite as 700 F.3d 651 (3rd Cir. 2012)

Here, Pavulaks challenge to his convic- CTI employees did not. Indeed, on two
tion for knowingly possessing child por- occasions, several of the child-pornography
nography falls short of its extremely images and pictures of Pavulak were edit-
high burden. Starnes, 583 F.3d at 206 ed within hours of each other. Compare
(quoting United States v. Iglesias, 535 Govt Exs. 24650, 25354 (depicting im-
F.3d 150, 155 (3d Cir.2008)). To prove ages of Pavulak created on September 13,
possession of child pornography under 18 2008 at approximately 3:30 p.m.), with
U.S.C. 2252A(a)(5)(B), the evidence must Govt Exs. 225225A (depicting an image
show that Pavulak knowingly possesse[d], of child pornography created on Septem-
or knowingly accesse[d] with an intent to ber 13, 2008 at approximately 11:30 p.m.);
view, any book, magazine, periodical, film, compare Govt Ex. 251 (depicting an image
videotape, computer disk, or any other ma- of Pavulak created on November 4, 2008 at
terial that contains an image of child por- approximately 5:20 p.m.), with Govt Exs.
nography with the requisite connection to 211211A, 215216A, 219220A, 228228A,
interstate commerce. Pavulak concedes 231231A (depicting images of child pornog-
that the images recovered from the lap- raphy created on November 4, 2008 at
top 13 depict child pornography. But he approximately 10:40 p.m.). By contrast,
argues that no rational jury could have no one accessed these twenty-nine images
found beyond a reasonable doubt that he of child pornography when Pavulak left the
knowingly possessed those images. See laptop in the United States during his trip
Appellants Br. at 3337. to the Philippines. The weight of this
The jury, though, had ample evidence to evidence prevents us from overturning Pa-
infer otherwise. The laptop had only a vulaks conviction for possessing child por-
single password-protected Windows user nography.
account and contained photos of Pavulak, [22] Likewise, we cannot say that no
Pavulak claimed that the laptop was his reasonable juror could accept the evidence
computer, and the police recovered the as sufficient to find Pavulak guilty of
laptop from the part of the CTI office in attempting to produce child pornography.
which he was living. Simply put, Pavulak Miller, 527 F.3d at 69 (quoting United
was the laptops likeliest user. States v. Lacy, 446 F.3d 448, 451 (3d Cir.
And Pavulak was also the likeliest per- 2006)). The crime of attempt requires the
son to have accessed the child-pornogra- specific intent to commit a crimehere,
phy images on the laptop. They were not producing child pornography in violation of
buried away where an innocent user could 18 U.S.C. 2251(a)and a substantial
have overlooked them. Twenty-nine of step towards the commission of that crime.
them were found in Windows Photo Gal- Cf. United States v. Nestor, 574 F.3d 159,
lery, which could have occurred only if the 16061 (3d Cir.2009) (describing attempted
user had accessed the image and modified enticement of a minor to engage in sexual
it in some way. And the laptops user activity in violation of 18 U.S.C. 2422(b)).
edited the twenty-nine images between Under 2251(a), a person is guilty of pro-
September and November 2008, usually in ducing child pornography if he employs,
the evening and on the weekendswhen uses, persuades, induces, entices, or
Pavulak had access to the laptop and other coerces any minor to engage in or has a

13. Because the jurys verdict can be sustained ing to the desktop computer withstands Pavu-
based on the evidence relating to the laptop, laks sufficiency challenge.
we do not address whether the evidence relat-
670 700 FEDERAL REPORTER, 3d SERIES

minor assist any other person to engage in 1 Hoping that she likes performing oral
TTT any sexually explicit conduct for the sex on him;
purpose of producing any visual depiction 1 Wanting to see her use a vibrator;
of such conduct or for the purpose of
1 Ejaculating in her mouth during his
transmitting a live visual depiction of such
next trip to the Philippines; and
conduct.
1 Wanting Duran to continue instructing
[23] Here, Pavulak repeatedly insisted Jane Doe on how to perform oral sex.
that Duran display Jane Does vagina via a
Pavulaks text messages and the training
live webcam feed during their January 18,
video confirm his desires. His own text
2009 chat session. See JA530a31a (telling
messages to Duran indicate that Pavulak
Duran to take ur panties off hon and
wanted to perform oral sex on Jane Doe,
show me ur pussy, stating no now TTT
to see both Duran and Jane Doe naked on
and [Jane Does] too when Duran initial-
the cam using the v[i]brator, to have Jane
ly declined, and again demanding now
Doe perform oral sex on him, and to have
[Jane Does] after Duran gave in to his
Duran make it all work out for the three
request to see her vagina (emphasis add-
of [them] to be [sic] happy sex life. And
ed)). Duran declined to expose Jane Does
Pavulak created a training video for
vagina because she was wearing a diaper
Jane Doe to learn how to perform oral sex.
but offered to display Jane Doe naked the
next morning. Pavulak agreed, typing Urging us to characterize his chat with
ok. That evidence was enough to consti- Duran as facetious banter, Pavulak
tute a substantial step towards coercing claims that he lacked the specific intent to
Jane Doe to engage in any sexually ex- act on any of the illicit portions of his
plicit conduct TTT for the purpose of trans- fantasies. Appellants Br. at 30. Yet it
mitting a live visual depiction of such con- is not for us to weigh the evidence.
duct. 18 U.S.C. 2251(a); see, e.g., United States v. Smith, 294 F.3d 473, 478
United States v. Lee, 603 F.3d 904, 918 (3d Cir.2002) (quoting United States v.
(11th Cir.2010) (upholding a guilty verdict Dent, 149 F.3d 180, 187 (3d Cir.1998)).
for attempted production of child pornog- And even if that were one plausible inter-
raphy where the evidence showed that the pretation of the evidence, his contention
defendant repeatedly TTT request[ed] sex- that the evidence also permits a less sinis-
ually explicit photographs and [sent] a ter conclusion than guilt is not enough to
photograph of his own). overturn the verdict. Id. (quoting Dent,
149 F.3d at 188). Pavulak fails to take the
Moreover, there was plenty of evidence
next step and explain why the govern-
that Pavulak specifically intended for Du-
ments ample evidence does not support
ran to display Jane Does vagina to excite
the jurys verdict. The jury therefore had
lustfulness or sexual stimulation. See
sufficient evidence to find that Pavulak
United States v. Knox, 32 F.3d 733, 745
specifically intended to produce child por-
(3d Cir.1994) (explaining that lascivious
nography by directing Duran to expose
exhibition of genitals or pubic area is one
Jane Doe on the webcam. As a result,
variety of sexually explicit conduct pro-
Pavulaks sufficiency challenges fail.
scribed by the statute). During that chat,
Pavulak described various ways that he
intended to sexually abuse Jane Doe in the VI.
future, including: The District Court did not err by deny-
1 Digitally penetrating her at age five; ing Pavulaks motion for a new trial. Ac-
U.S. v. PAVULAK 671
Cite as 700 F.3d 651 (3rd Cir. 2012)

cording to Pavulak, Mack testified at trial looked of age. Indeed, at trial, Mack
that he saw Pavulak viewing adult pornog- confirmed that the pornographic images to
raphy, contradicting the search-warrant af- which he tipped off the police involved
fidavits indication that he saw Pavulak really young girls in their early teens.
viewing child pornography. This inconsis- With no inconsistency between Macks tri-
tency, Pavulak contends, entitled him to a al testimony and earlier tip, Pavulak can-
post-trial Franks hearing so he could show not make the substantial preliminary
that the affidavits information was false. showing that the information provided in
In turn, that falsity would justify suppres- the affidavit was false. And without iden-
sion of the chat logs, photographs, and tifying false information, Pavulak was not
other evidence recovered from the CTI entitled to a post-trial Franks hearing and,
office and his Yahoo! account and ultimate- consequently, to a new trial.
ly entitle him to a new trial under Federal
Rule of Criminal Procedure 33. VII.
[2426] We normally review the denial [27, 28] In addition to challenging his
of a Rule 33 motion for a new trial for convictions, Pavulak claims that the Con-
abuse of discretion. See United States v. stitution required the jury, not the District
Brown, 595 F.3d 498, 511 (3d Cir.2010) Court, to determine the facts that trig-
(citing United States v. Saada, 212 F.3d gered his mandatory life sentence under
210, 215 (3d Cir.2000)). Because Pavulak 18 U.S.C. 3559(e)(1) on the attempted-
predicates his motion for a new trial on production conviction. We exercise de
his entitlement to a Franks hearing, we novo review over these questions of consti-
will directly evaluate the denial of his re- tutional and statutory interpretation.
quest for a post-trial Franks hearing. Ac- United States v. Barbosa, 271 F.3d 438,
cord United States v. Rivera, 410 F.3d 452 (3d Cir.2001) (citing United States v.
998, 100001 (8th Cir.2005) (taking this Williams, 235 F.3d 858, 861 (3d Cir.2000)).
approach). He was entitled to such a First, some background: Section
hearing only if he (1) made a substantial 3559(e)(1) imposes a mandatory life sen-
preliminary showing that the affiant tence on a defendant convicted of a Fed-
knowingly or recklessly included a false eral sex offense in which a minor is the
statement in or omitted facts from the af- victim if he has a prior sex conviction in
fidavit, and (2) showed that the false which a minor was the victim. The trig-
statements or omitted facts were neces- ger for this sectiona prior sex convic-
sary to the finding of probable cause. tion in which a child was the victim
Yusuf, 461 F.3d at 38384. Like his re- includes specified Federal sex offense[s]
quest for a pre-trial Franks hearing, we as well as State sex offense[s] that would
need not establish a standard of review be punishable by more than one year in
because Pavulak was not entitled to a prison and involve conduct that would be
post-trial Franks hearing under any stan- a Federal sex offense if there were feder-
dard. al jurisdiction. 18 U.S.C. 3559(e)(2)(A)-
Macks trial testimony was perfectly (B).
consistent with the information he provid- Thus, determining whether
ed for the search-warrant affidavit. At 3559(e)(1)s mandatory life sentence ap-
trial, Mack testified that pictures of wom- plies to Pavulak turns on whether his prior
en Pavulak met in the Philippinesnot the Delaware convictions for unlawful sexual
suspected images of child pornography contact in the second degree under 11
672 700 FEDERAL REPORTER, 3d SERIES

Del.Code 768 also constitute a federal the third degree with the federal crime of
sex offensehere, aggravated sexual sexual abuse of a minor because the feder-
abuse of a child under 18 U.S.C. 2241(c). al crime required a victim under twelve
To make that determination, we must start years old while the Delaware crime did not
with the formal categorical approach. contain an age cut-off). Consequently, we
That inquiry requires a district judge to cannot conclude, as a matter of law, that
evaluate whether the elements of the stat- Pavulaks prior state convictions necessari-
utory state offense, not the specific ly constitute a federal sex offense.
facts underlying the defendants prior [29] Our inquiry does not end there:
conviction, would automatically constitute the trier of fact might find sufficient facts
a federal sex offense. JeanLouis v. Atty underlying Pavulaks prior Delaware con-
Gen. of U.S., 582 F.3d 462, 465 (3d Cir. victions to satisfy the two additional re-
2009). Here, the Delaware crime of un- quirements of the federal crime of aggra-
lawful sexual contact in the second degree vated abuse of children. Whothe judge
is not necessarily congruous with the fed- or the juryis allowed to engage in that
eral crime of aggravated sexual abuse of fact-finding? Under the familiar Apprendi
children under 18 U.S.C. 2241(c). There rule, the Fifth Amendments Due Process
are at least two differences: Clause and Sixth Amendments Jury Trial
1. Section 2241(c) requires the victim Guarantee require any fact, other than
to be less than twelve years old, the fact of a prior conviction, that increas-
whereas 11 Del.Code 768 requires es the penalty for a crime beyond the
the victim to be less than eighteen prescribed statutory maximum [to] be sub-
years old. mitted to a jury and proved beyond a
2. Section 2241(c) contains an addition- reasonable doubt. United States v. Cho-
al elementa specific-intent re- rin, 322 F.3d 274, 278 (3d Cir.2003) (citing
quirement that the defendants in- Apprendi, 530 U.S. at 490, 120 S.Ct. 2348).
tentional touching occur with an [30, 31] If Apprendi applies, the dis-
intent to abuse, humiliate, harass, trict judge is usually limited to the formal
degrade, or arouse or gratify the categorical approach, and any remaining
sexual desire of any personthat elements of the federal sentencing en-
11 Del.Code 768 does not require. hancement must be found by a jury be-
Compare 18 U.S.C. 2246(2)(D) yond a reasonable doubt. In some cases
(defining sexual act to include this (like this one) where the federal sentenc-
specific-intent requirement), with 11 ing enhancement invites inquiry into the
Del.Code 761(f) (defining sexual underlying facts of the case, Borrome v.
act without any specific-intent re- Atty Gen. of U.S., 687 F.3d 150, 155 (3d
quirement). Cir.2012), we have modified the categorical
Given these differences, the Delaware approach, permitting the district judge to
law under which Pavulak was previously evaluate whether the factual elements of
convicted does not necessarily involve the analogous federal crime were necessar-
conduct that would be a Federal sex of- ily proven at the time of the defendants
fense under the formal categorical ap- conviction on the state charges. United
proach. See, e.g., Singh v. Ashcroft, 383 States v. Rood, 679 F.3d 95, 98 (2d Cir.
F.3d 144, 153 (3d Cir.2004) (reaching the 2012) (applying the modified categorical
same conclusion in comparing the Dela- approach to 18 U.S.C. 3559(e)); see 18
ware crime of unlawful sexual contact in U.S.C. 3559(e) (focusing on whether the
U.S. v. PAVULAK 673
Cite as 700 F.3d 651 (3rd Cir. 2012)

state sex offense involves conduct that vated sexual abuse, sexual abuse, abusive
would be a Federal sex offense and there- sexual contact involving a minor or ward,
by inviting an inquiry into the facts under- or sex trafficking of children, or the pro-
lying the defendants conviction (emphasis duction, possession, receipt, mailing, sale,
added)). Under this modified categorical distribution, shipment, or transportation
approach, the judge may consider only of child pornography. Id. Lastly, a de-
those facts that were necessarily admit- fendant faces imprisonment between thir-
ted by the defendant in his prior criminal ty-five years and life if he has two or
proceedingthat is, facts found in the more prior convictions under certain fed-
charging document, written plea agree- eral laws or under the laws of any State
ment, transcript of plea colloquy, and any relating to the sexual exploitation of chil-
explicit factual finding by the trial judge to dren. Id.
which the defendant assented. Shepard
Although Pavulak concedes that his two
v. United States, 544 U.S. 13, 16, 125 S.Ct.
prior Delaware convictions subjected him
1254, 161 L.Ed.2d 205 (2005). On the
to a sentencing range of twenty-five to
other hand, if Apprendi does not apply,
fifty years, he contends that they did not
then the district judge is free to make any
relat[e] to the sexual exploitation of chil-
factual findings related to sentencing, just
dren and therefore did not subject him to
as he is when finding facts that trigger
life imprisonment. And because 3559(e)s
enhancements under the Sentencing
mandatory life imprisonment would exceed
Guidelines that would not increase the de-
his statutory maximum of fifty years under
fendants maximum statutory sentence.
See, e.g., United States v. Grier, 475 F.3d 2251(e), Pavulak concludes that Appren-
556, 562 (3d Cir.2006) (en banc) (holding di required the jury (not the District
that Apprendi does not limit a district Court) to determine whether his Delaware
courts ability to engage in judicial fact- convictions triggered the mandatory life
finding within the permissible sentencing sentence in 3559(e).
range so long as that fact-finding would Pavulaks premise is faulty. His two
not trigger an increase in the defendants prior Delaware convictions did relat[e] to
maximum statutory sentence). the sexual exploitation of children, sub-
Here, Apprendi s restriction on judicial jecting him to a statutory maximum of life
fact-finding does not apply because the imprisonment under 2251(e). That con-
mandatory life sentence in 3559(e) does clusion is mandated by our decision in
not exceed Pavulaks maximum statutory United States v. Randolph, 364 F.3d 118,
sentence for attempted production of 119 (3d Cir.2004). There, the defendant
child pornography, which is life imprison- had three prior Georgia convictions for
ment. For attempted production of child child molestationdefined as performing
pornography, 18 U.S.C. 2251(e) estab- any immoral or indecent act to or in the
lishes three sets of sentencing ranges de- presence of or with any child under the
pending on the defendants criminal histo- age of 14 years with the intent to arouse or
ry. A defendant with no qualifying prior satisfy the sexual desires of either the
convictions faces fifteen to thirty years child or the person. Id. at 122 (quoting
imprisonment. 18 U.S.C. 2251(e). A Ga.Code Ann. 262019 (1978)). After
defendant faces twenty-five to fifty years being convicted of attempted production of
imprisonment if he has one prior convic- child pornography under a previous ver-
tion under certain federal laws or under sion of 2251, the defendant faced an
the laws of any State relating to aggra- increased statutory maximum if his prior
674 700 FEDERAL REPORTER, 3d SERIES

Georgia convictions involved the sexual Pavulak urges us to adopt the same
exploitation of childrenthe same frame- case-by-case approach that we rejected in
work as the current version of 2251. Randolpha proposal we are powerless to
See id. at 119. He argued that this en- consider. See Mariana v. Fisher, 338
hancement applied only if the conduct un- F.3d 189, 201 (3d Cir.2003) ([T]he holding
derlying his prior convictions involv[ed] of a panel in a precedential opinion is
the production of visual depictions of mi- binding on subsequent panels. (quoting
nors engaged in sexually explicit conduct. Third Circuit I.O.P. 9.1)).
Id. at 122. We rejected that case-by-case And contrary to Pavulaks insistence
analysis and depiction-limited definition. otherwise, Congresss amendments to
Instead, we adopted a categorical approach 2251(e) since Randolph do not change
focused on whether the statutory definition anything. At the time of Randolph,
of the prior crime, rather than the particu- 2251(e)s enhanced sentencing ranges
lar defendants conduct, related to the were both triggered by prior state convic-
sexual exploitation of children. Id. And tions relating to the sexual exploitation of
Georgias law against child molestation, we children: twenty-five to fifty years for
concluded, related to the sexual exploita- one such conviction and thirty-five years to
tion of children. Id. life for two such convictions. See Ran-
dolph, 364 F.3d at 119. In 2006, Congress
Likewise, Pavulaks two prior Delaware amended the description of qualifying state
convictions for unlawful sexual contact in offenses that would trigger the twenty-
the second degree involved the sexual five-to-fifty-year category: it replaced the
exploitation of children. Under Delaware sexual exploitation of children with ag-
law, [a] person is guilty of unlawful sexual gravated sexual abuse, sexual abuse, abu-
contact in the second degree when the sive sexual contact involving a minor or
person intentionally has sexual contact ward, or sex trafficking of children, or the
with another person who is less than 16 production, possession, receipt, mailing,
years of age or causes the victim to have sale, distribution, shipment, or transporta-
sexual contact with the person or a third tion of child pornography. Adam Walsh
person. 11 Del.Code 768. Sexual Child Protection and Safety Act of 2006,
contact is one type of sexual exploita- Pub. L. No. 109248, 206(b)(1)(B), 120
tion. See Randolph, 364 F.3d at 122 Stat. 587, 614 (2006). But Congress did
(holding that child molestation is related not make any changes to the thirty-five-to-
to sexual exploitation); United States v. life category under which Pavulak was
Galo, 239 F.3d 572, 583 (3d Cir.2001) (hold- sentencedmeaning that state laws relat-
ing that sexual exploitation in 2251(e) ed to the sexual exploitation of children
includes involuntary deviate sexual inter- remained a trigger for that sentencing
course and statutory rape); see id. range. See id.
(holding that the definition of the prior [32] Pavulak believes that the amend-
conviction need not contain the term sex- ment limits the meaning of sexual ex-
ual exploitation of children to qualify). ploitation of children to crimes involving
And because section 768 requires a victim visual depictions. He is wrong. That in-
who is less than 16 years of age, the terpretation would ascribe the same
statute is limited to the sexual exploita- meaning to the term sexual exploitation
tion of children as required by 2251(e) of children in the thirty-five-to-life cate-
(emphasis added). gory and the phrase the production, pos-
JAMES v. CITY OF WILKESBARRE 675
Cite as 700 F.3d 675 (3rd Cir. 2012)

session, receipt, mailing, sale, distribu- and thus triggered the mandatory life sen-
tion, shipment, or transportation of child tence in 3559(e).
pornography in the twenty-five-to-fifty * * * * * *
category. Ordinarily, we assume that
Congress used two different [phrases] be- Accordingly, we will affirm Pavulaks
cause it intended each [phrase] to have a convictions and sentence.
particular, nonsuperfluous meaning.
United States v. Tupone, 442 F.3d 145,
158 (3d Cir.2006) (quoting Bailey v. Unit-
ed States, 516 U.S. 137, 146, 116 S.Ct.
,
501, 133 L.Ed.2d 472 (1995)). If Con-
gress had wanted to implement Pavulaks
interpretation, it could have explicitly
done so by replacing the sexual exploita-
Cheryl JAMES; Warren James;
tion of children in the thirty-five-to-fifty
Nicole James
category with the production, possession,
receipt, mailing, sale, distribution, ship- v.
ment, or transportation of child pornogra-
The CITY OF WILKESBARRE;
phy. It is hard to fathom why Con-
Wright Township; WilkesBarre Hos-
gress, seeking to increase the penalties
pital Company, LLC, Doing Business
for sexual offenses against children,
as WilkesBarre General Hospital;
would have amended the twenty-five-to-
The Wyoming Valley Health Care Sys-
fifty category to ensure that crimes be-
tem; The WilkesBarre City Police
yond those involving visual depictions
Department; The Wright Township
were included while silently limiting the
Police Department; Dr. Russell Elmer
qualifying crimes to visual depictions for
the thirty-five-to-life category. And giv- James; Dr. Noel Pacleb Estioko; Amy
en that Congress kept so many prior Lynn Craig; Beth Ann Noble; Lora
federal offenses that trigger the thirty- Denise Paulukonis; Brian Thomas
five-to-life category, it is implausible Moran; Tanya Lynn Ostopick; Ryan
that Congress simultaneously chose to Russell Seltzer; Carole Fleming Pi-
restrict qualifying state offenses to child row; Dennis Monk; Brian Stout; Mi-
pornography production. United States chael Marshall; Charlie Casey; Kathy
v. Sanchez, 440 Fed.Appx. 436, 440 (6th Pickarski Vidumski; Jason Frank
Cir.2011) (emphasis added). Killian, Dr. Maureen M. Litchman,
Michael Marshall, Appellants.
Since Pavulaks mandatory life sentence
under 3559(e) did not exceed his maxi- No. 113345.
mum statutory sentence of life under
2251(e), Apprendi is inapplicable. Unit- United States Court of Appeals,
ed States v. DeSumma, 272 F.3d 176, 181 Third Circuit.
(3d Cir.2001) ([W]hen the actual sentence Argued Oct. 23, 2012.
imposed does not exceed the statutory
maximum, Apprendi is not implicated.). Filed: Nov. 29, 2012.
It was therefore constitutional for the Dis- Background: Mother brought 1983 ac-
trict Court to determine that Pavulaks tion in state court against police officer
prior Delaware convictions involved con- and others alleging, inter alia, false arrest
duct that would be a Federal sex offense and false imprisonment after officer, who