FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 07-50195 Plaintiff-Appellee,

D.C. No.

v.  CR-06-00019-DSF-1

TYRONE ALAN GANOE,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

Argued and Submitted

July 14, 2008—Pasadena, California

Filed August 15, 2008

Before: Barry G. Silverman, Johnnie B. Rawlinson, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Silverman

10733
COUNSEL

Karen L. Landau, Oakland, California, for the defendantappellant. 

Thomas P. O’Brien, Christine C. Ewell, and Mark C. Krause,

United States Attorney’s Office, Los Angeles, California, for

the plaintiff-appellee. 

OPINION

SILVERMAN, Circuit Judge: 

In this appeal from convictions for receipt and possession

of child pornography, we hold today that the district court

acted within its discretion in allowing the jury to briefly view

a carefully limited number of images that were the subjects of

the charged offenses. Ganoe’s offer to stipulate that anyone

viewing the images would have known that they met the legal

definition of child pornography did not render the evidence

impermissible, because he refused to also stipulate that the

titles of the computer files alone were enough to import

knowledge of what they were. We also affirm the denial of

Ganoe’s motion to suppress evidence obtained by a federal

agent using peer-to-peer software. Ganoe installed and used

file-sharing software on his computer; he knew or should

have known that the folder into which he downloaded files

was accessible to others on the peer-to-peer network. We hold

that Ganoe lacked an objectively reasonable expectation of

privacy in those files. Lastly, we find no error or abuse of discretion in the district court’s calculation of Ganoe’s sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

The investigation

On January 5, 2004, Immigration and Customs Enforcement Special Agent Ken Rochford was using LimeWire to

10736 UNITED STATES v. GANOE
locate people using file-sharing programs to trade child pornography. LimeWire is a file-sharing program that can be

downloaded from the internet free of charge; it allows users

to search for and share with one another various types of files,

including movies and pictures, on the computers of other persons with LimeWire. Once a user downloads the program

onto his computer, the user can click on an icon that connects

his computer to others on the network. Users can input search

terms and receive a list of responsive files available on other

computers connected to the network. 

Upon observing a file entitled “Baby J Compilation,”

Rochford downloaded and viewed the movie, confirming that

it depicted an adult having sexual intercourse with a very

young girl. (The computer forensics expert testified that

“BabyJ” is a common term in the world of child pornography,

referring to “a specific victim of child exploitation” depicted

in a series of pictures and movies.) Rochford used

LimeWire’s “Browse Host” feature to view all of the files

being shared by a particular “Host,” thereby discovering four

additional file titles that suggested similar content. Rochford

downloaded and viewed these files, observing that they too

contained footage of children engaged in sexually explicit

conduct. Rochford determined that the downloads originated

from a computer with a particular IP address, and that the IP

address was assigned to Tyrone Ganoe, located at a specified

residence in Norwalk, CA. 

Agents obtained a search warrant for that address, which

was executed on March 9, 2004. Tyrone Ganoe arrived at the

residence while the agents were engaged in the search. He

spoke with Agent Margaret Condon, who advised him that he

was not under arrest but that she would like to ask him a few

questions. Ganoe agreed, confirming that he lived at the house

with his mother Josephine and his sister Yvette. Condon

asked Ganoe if he knew why the agents were there, and he

said that he did; he explained that he had been using

LimeWire to download music and had inadvertently downUNITED STATES v. GANOE 10737
loaded child pornography. He stated that the “bad stuff” could

be found in the “z” folder on the iMac. Upon examination, the

“z” folder was found to contain 72 image and movie files suspected to be child pornography. 

The day after the search of Ganoe’s residence, Agent Condon called Ganoe on his cell phone to inform him that he

could retrieve some of the items taken during the search.

Ganoe volunteered that he was seeking counseling for his

“problem.” Agent Condon asked him what he meant, and he

stated that he was referring to his habit of viewing child pornography. 

The indictment

The first superseding indictment charged Ganoe with three

counts of knowingly receiving child pornography and one

count of knowingly possessing child pornography, all in violation of 18 U.S.C. § 2252A. The first count alleged that

Ganoe had received a digital image entitled “babyj Cock in

Her.mpg.” on or about November 22, 2003. The second count

alleged that Ganoe had received a digital image entitled

“BabyJ-ButtHump.mpg” on or about December 5, 2003. The

third count alleged that Ganoe had received a digital image

entitled “BabyJ-Teddy.mpg” on or about January 21, 2004.

The fourth count listed 65 different image titles and alleged

that Ganoe had possessed at least one on or about March 9,

2004. 

Pre-trial motions

Prior to trial, Ganoe moved to exclude the images at issue

on the grounds that they were inflammatory and unduly prejudicial, offering to stipulate that “the images seized on the

computer at the Ganoe family home are child pornography

within the meaning of the statute,” and that any reasonable

person viewing the images would have known that they were

child pornography. The government sought more, asking the

10738 UNITED STATES v. GANOE
defense to stipulate that Ganoe himself “had knowledge that

they were, in fact, illegal.” Defense counsel refused and the

court directed the attorneys to “attempt to agree on a stipulation that might make the introduction of such images unnecessary. Alternatively, counsel should attempt to agree to a

representative selection of still photographs and short portions

of video clips to be introduced into evidence after the Government presents evidence sufficient for the jury to conclude that

defendant saw the images.” 

At a subsequent hearing on the motion to exclude the

images, the district court reviewed the selection of images

proposed by the prosecution for viewing by the jury. Defense

counsel reiterated that the images were highly inflammatory

and argued further that the sequence was very repetitive;

defense counsel again asserted that the proffered stipulation

“makes the whole issue moot.” The district court directed the

government to select ten images to show to the jury. The district court also directed the government to investigate whether

technology was available to distort the faces of the children

depicted in the images. On January 5, 2007, the parties stipulated that the images specified in the indictment were transported in interstate commerce and depicted actual minors

engaging in sexually explicit conduct. Despite defense counsel’s earlier proffer, this stipulation did not include the provision that any reasonable person would have known that the

images were child pornography. 

In its written order the district court elaborated on its reasoning. Noting that the government was obligated to prove

that Ganoe knew the downloaded images were child pornography and that Ganoe would not so stipulate, the district court

reasoned that “the images must be produced so that the jury

can determine whether a reasonable person would know of

the nature of the images.” 

The next day, immediately prior to the beginning of trial,

defense counsel made another attempt to have the images

UNITED STATES v. GANOE 10739
excluded, offering to stipulate further that “[a]nyone who sees

those images for one second knows that they are child pornography.” 

The following day the government offered to accept a stipulation that anyone who read the file titles would have known

they were downloading child pornography. The defense

refused, rejecting the proposition that merely selecting a file

for download on the basis of a title was sufficient to constitute

knowledge in the absence of a showing that the images were

actually viewed. The district court ruled that “although the

images obviously are prejudicial, in the context of this case,

they are extremely probative. They have been limited. We

have inquired of the jury concerning their ability to view

those images. We have an instruction that I will give them

that the Government proposed, and I am going to allow the

images to be shown.” 

Also prior to trial, the defense moved to suppress the evidence obtained from Ganoe’s computer during the execution

of the search warrant on the grounds that Rochford’s initial

search was illegal. The district court denied the motion, reasoning that Ganoe did not have a reasonable expectation of

privacy in a computer on to which he had loaded the filesharing program. Rejecting Ganoe’s claim that he wasn’t

“computer-savvy” enough to have used the disabling feature,

the district court concluded that “[h]e knew or should have

known that the software might allow others to access his computer.” 

Ganoe also sought to exclude evidence of the firearms

seized at the Ganoe family, including evidence that some of

the weapons were not legal to possess. The district court ruled

that the evidence was not inextricably intertwined with the

charged conduct, and that the admissibility of the evidence

would depend on the evidence introduced by Ganoe; the district court instructed that the government was not to introduce

the firearm evidence without seeking permission. 

10740 UNITED STATES v. GANOE
The prosecution’s case-in-chief

At trial Agent Rochford testified about his experience in

investigating child pornography offenses and explained how

he had downloaded files containing child pornography from

an IP address later determined to be associated with Ganoe’s

computer. Agent Condon testified about the search that was

conducted at the Ganoe residence, including Ganoe’s statements acknowledging his possession of child pornography,

and her subsequent telephone conversation with Ganoe in

which he volunteered that he was receiving counseling for his

“problem.” Bruce Pixley, the government’s computer forensics expert, explained how peer-to-peer programs such as

LimeWire work and testified about his examination of

Ganoe’s computer. Pixley said that he found 72 pictures and

videos depicting child pornography in a subfolder entitled

“z,” located within the iTunes folder. Ten of these images,

each lasting only a few seconds, were shown to the jury one

time. In addition, before the images were played, the district

court gave a cautionary instruction that the images were being

shown “only to assist you in determining whether the government has met its burden to prove the defendant guilty of all

of the elements of the charges against him.” The district court

cautioned the jurors not to “allow any feelings that you may

have regarding these images to affect this determination in

any way,” and reminded the jurors of their oath to be fair and

impartial to both sides. 

The defense

The defense called Ganoe’s sister Yvette, her boyfriend

Joseph DiLello, and her friend Rhonda Poston to testify that

a man named Ray Rodriguez lived at the Ganoe family home

for several months during the fall of 2003 and the winter of

2004, but vanished after Yvette told him that federal agents

had seized the computer from the music room. DiLello testified that he had personally observed Rodriguez search for and

download child pornography on to the computer, and that he

UNITED STATES v. GANOE 10741
had never seen Ganoe on the computer. The defense also called a number of witnesses to provide alibis for Ganoe on the

dates and times during which the child pornography was

downloaded. 

Prosecution’s rebuttal case

In rebuttal the prosecution called Coraly Serrano, Ganoe’s

ex-girlfriend. Serrano testified that Ganoe asked her to assist

him in the fabrication of an alibi and that the Ganoe family

had invented the existence of Ray Rodriguez. At the conclusion of the direct examination, defense counsel asked to defer

cross-examination, stating that Serrano’s testimony was

“nothing we have ever heard before” and that the defense

needed “an opportunity to look into it further so that we can

address the witness appropriately.” The court denied the

request, and Serrano was cross-examined about her feelings

of anger towards Ganoe as a result of their break-up. During

the cross-examination of Serrano, defense counsel renewed

the request for a continuance to allow for additional preparation, which the district court denied. 

The government also recalled Pixley, who testified that

whoever was using the computer at the time the child pornography was downloaded had also accessed Ganoe’s PayPal

account, used Ganoe’s American Express card, logged onto

his email account, and sent emails to people associated with

Ganoe, suggesting that it must have been Ganoe himself. 

Defense surrebuttal 

After the conclusion of the prosecution’s case in rebuttal,

defense counsel sought to present surrebuttal, asking to recall

Yvette, DiLello, and Poston to address the accusation of fabrication. The district court agreed to “very limited” questioning

to allow these witnesses to address the allegations that they

had fabricated the existence of Rodriguez. Joseph DiLello testified that a list of passwords and user names for various

10742 UNITED STATES v. GANOE
password-protected websites was kept next to the computer,

suggesting that anyone using the computer could have

accessed these sites. DiLello was cross-examined about the

password list and other aspects of his testimony, and was then

excused by the judge, at which point defense counsel sought

to ask “one follow-up question.” The district court refused; at

sidebar, defense counsel explained that she wanted DiLello to

identify the paper containing the password list and to have the

list introduced into evidence. The district court denied the

request on the grounds that counsel had the paper during

direct examination. 

Defense counsel also sought to call Coraly Serrano back as

an adverse witness to probe more extensively Serrano’s “biases and motives.” The district court viewed this proposed

line of questioning as outside the purview of proper surrebuttal, noting that the defense had been “well aware” of Serrano’s existence prior to her appearance on the prosecution’s

witness list. After an extended colloquy regarding the scope

of questioning that would be allowed, Serrano took the stand

and was asked about her relationship with the Ganoe family,

her blog postings about Ganoe and his arrest, and a number

of other topics. Defense counsel began to question Serrano

about her employment history, triggering a relevance objection from the prosecution. At sidebar, defense counsel

explained that she was preparing to ask the witness about

prior instances of dishonesty, specifically that Serrano had

undergone breast augmentation surgery and charged it to the

credit card of her former employer; similarly, that while

working for a finance company Serrano had purchased shoes

using stolen credit card numbers from the company’s customers. Commenting that “[i]t doesn’t really have anything to do

with this case,” the district court ruled that such questioning

would not be allowed. 

Verdict, sentencing, and appeal

Ganoe was convicted on counts one, two, and four, and was

acquitted on count three. He was sentenced to 96 months in

UNITED STATES v. GANOE 10743
prison, a $15,000 fine, and five years of supervised release.

He timely appealed and raises the following claims of error.

II. DISCUSSION

A. The district court did not abuse its discretion in

allowing the jury to view a carefully tailored selection

of the child pornography images charged in the

indictment. 

Ganoe contends that the images of child pornography

shown to the jury were unfairly prejudicial, lacking in probative value, and should have been excluded under Federal Rule

of Evidence 403. Reviewing for abuse of discretion, see

United States v. Merino-Balderrama, 146 F.3d 758, 761 (9th

Cir. 1998), we find none. 

[1] Federal rule of Evidence 403 provides that “evidence

may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” As to the danger

of unfair prejudice, Ganoe observes that the images at issue

here were “unusually inflammatory,” depicting children as

young as four years old being subjected to anal and vaginal

intercourse with adult males. Ganoe asserts that the probative

value of the images was eliminated by his offer to stipulate

that the images represented actual children engaged in sexual

conduct and that anyone seeing the images even for a moment

would know that they were child pornography. We disagree.

[2] To begin, Ganoe’s proffered stipulation was incomplete, because he refused to stipulate that the file titles alone

would convey to a reasonable user that the files contained

child pornography; moreover, some aspects of his defense

suggested that one could mistakenly download such files

thinking they were adult pornography or otherwise legal. This

left the government with the obligation to prove that Ganoe

was aware of the content of the images. As to this burden

Ganoe’s proffered stipulation was silent, whereas the images

10744 UNITED STATES v. GANOE
— in conjunction with the rest of the forensic evidence —

said a great deal. Of the child pornography files charged in the

indictment — including the subset shown to the jury — many

had titles that were excruciatingly suggestive of the content

(“babyj Cock in Her”), while other titles could arguably be

said to be ambiguous as to either the depiction of sexual conduct (“BabyJ Teddy”) or the age of participants (“Vicky69”).

Every single child pornography file found on Ganoe’s computer, descriptively titled or not, was placed in the “z” folder,

and the “z” folder contained nothing but child pornography.

Pixley explained that this categorization had to have been

achieved manually, by “user intervention” rather than by virtue of a default setting. 

[3] The fact that the vast majority of the titles accurately

described the nature of the corresponding image was relevant

to rebut the defense’s suggestion that one could download the

files without intending to obtain child pornography. The fact

that even those files that were not explicitly titled also turned

out to contain child pornography and were likewise placed in

the “z” folder strongly suggests that the images had to have

been viewed in order to be categorized. The jury had to see

the images to be able to draw these conclusions. Thus the

images themselves, published to the jury as part of the government’s detailed and comprehensive forensic evidence

regarding the downloading, viewing, categorizing, and storing

of the files, were highly probative of the state of mind with

which the files were received and possessed. Seen in this context we think it plain that Ganoe’s proffered stipulation simply did not “supply evidentiary value at least equivalent to

what the Government’s own evidence carried.” See Old Chief

v. United States, 519 U.S. 172, 186 (1997). 

[4] In weighing the probative value of the images against

the danger of unfair prejudice, we emphasize that each of the

clips was derived from files charged in the indictment; the

images shown to the jury were thus not extrinsic to the crime

charged “but rather a part of the actual pornography posUNITED STATES v. GANOE 10745
sessed.” See United States v. Dodds, 347 F.3d 893, 898 (11th

Cir. 2003). Even more importantly, for every image shown to

the jury there was forensic evidence that the files had actually

been opened and viewed after downloading. This is what

makes this case distinguishable from United States v. MerinoBalderrama, in which we reversed a conviction for possession

of child pornography where the district court erroneously

allowed the government to show excerpts from child pornography films found in the trunk of the defendant’s car. See 146

F.3d at 760. Seeking to keep the films from the jury’s view,

the defendant had offered to stipulate that the films were child

pornography and had traveled in interstate commerce. Id. at

761. In Merino, however, it had been undisputed that the

defendant never saw the actual films — only the box covers,

which depicted images that turned out to be stills taken from

the movies within. This is a crucial distinction, because in

conducting the Rule 403 analysis, we emphasized that the

films, which had not been viewed by the defendant, were considerably less probative to scienter than the box covers, which

the defendant had seen. Id. at 761-63. In this case, the images

themselves were probative of scienter in a way that was simply absent in Merino-Balderrama. 

[5] As the First Circuit recently observed, “The trial judge’s

job is to avoid unfair prejudice. The court is not required to

scrub the trial clean of all evidence that may have an emotional impact.” United States v. Morales-Aldahondo, 524 F.3d

115, 120 (1st Cir. 2008) (affirming the admission of 12 photographs and 10 video clips depicting child pornography). Here

the record reflects that the district court used just about every

tool at its disposal to minimize the inflammatory nature of the

images. The district court limited the government to ten clips,

each one lasting a few seconds, with a total duration of under

one minute. The images were played only once. The district

court gave two cautionary instructions, directing the jury to

view the images in an impartial and unbiased manner. All of

this was after careful voir dire on the subject during jury

selection. Indeed, the jury’s verdict demonstrates quite com10746 UNITED STATES v. GANOE
pellingly that the district court succeeded in avoiding unfair

prejudice. The jury acquitted Ganoe on count three of the

superseding indictment that charged him with receiving a digital file entitled “BabyJ-Teddy.mpg,” in spite of the fact that

a portion of that very film was shown to the jury. The district

court properly exercised its discretion in connection with the

admission of the images. 

B. Any abuse of discretion in the district court’s

limitation on the questioning of Coraly Serrano was

harmless. 

[6] Ganoe next asserts that his Sixth Amendment right to

confrontation was violated by the district court’s refusal to

allow him to question Serrano during surrebuttal about

whether she had used the credit cards of her former employer

and former customers for personal gain. Because Serrano had

already been subjected to robust cross-examination about her

biases and motivations to lie and because it arises in the context of surrebuttal, we view this ruling as a limitation on the

scope of questioning regarding Serrano’s credibility, and we

therefore review the ruling for abuse of discretion. See United

States v. Larson, 495 F.3d 1094, 1101-02 (9th Cir. 2007) (en

banc). 

[7] The next step is to consider whether the ruling violated

Ganoe’s right “to be confronted with the witnesses against

him,” which includes “the right of effective crossexamination.” Id. at 1102. We have identified three factors to

consider in determining whether a defendant’s right to effective cross-examination was violated: “(1) whether the

excluded evidence was relevant; (2) whether there were other

legitimate interests outweighing the defendant’s interest in

presenting the evidence; and (3) whether the exclusion of evidence left the jury with sufficient information to assess the

credibility of the witness.” Id. at 1103. We note that we consider the excluded evidence to be relevant, as it tends to

reflect Serrano’s character for truthfulness and thus sheds

UNITED STATES v. GANOE 10747
light on the truthfulness of her testimony. See 1 MCCORMICK

ON EVIDENCE 150 (5th ed. 1999) (“The fact that the witness

previously engaged in deception tends to show the witness

has a character trait for untruthfulness, and in turn the existence of that character trait at least slightly increases the probability that the witness lied during his testimony.”). Because

the proposed line of questioning was offered as evidence of

Serrano’s character for untruthfulness, we do not quite understand the district court’s comment that “it doesn’t really have

anything to do with this case.”

1

 As to whether the jury had

sufficient information to assess Serrano’s credibility, we note

that the jury was presented with voluminous evidence that

Serrano had made threats against Ganoe, was still very angry

with him over their break-up, and had made prior statements

inconsistent with her testimony. Ultimately, however, we

need not determine whether this was adequate to satisfy the

Sixth Amendment: even if Ganoe did suffer a Confrontation

Clause violation, we conclude that any error was harmless

beyond a reasonable doubt. See Larson, 495 F.3d at 1107.

Although the trial was certainly hard fought, the evidence of

Ganoe’s guilt was overwhelming. Ganoe made statements to

Condon acknowledging that there were child pornography

files on his computer and explaining that he had placed all the

“bad stuff” in the “z” folder. During the search he characterized the downloading as inadvertent, but the next day he

informed her that he was seeking counseling for his “problem.” The government also introduced substantial forensic

evidence to demonstrate that it was Ganoe who knowingly

received or possessed child pornography, including evidence

that most of the files were downloaded while Ganoe accessed

password-protected websites such as his online bank account;

that all of the files had been opened and viewed after downloading; and that the categorized placement of the child por1The government suggested during oral argument that the district

court’s ruling can be understood as a determination that defense counsel

sought to impeach Serrano on a collateral matter and without sufficient

factual foundation. 

10748 UNITED STATES v. GANOE
nography files into the “z” folder would have to have been

done manually by the user. In light of this evidence, we are

unable to entertain a reasonable doubt that the outcome of the

trial would have been different had Ganoe been permitted to

ask Serrano about her misuse of employer and customer credit

cards. 

C. The district court did not abuse its discretion in

excluding the list of passwords. 

The defense recalled Joseph DiLello in its surrebuttal case

to counter forensic expert Pixley’s testimony that whoever

was using the computer at the time the child pornography was

downloaded also accessed Ganoe’s PayPal account, used

Ganoe’s American Express card, logged onto his email

account, and sent emails to people associated with Ganoe.

During his surrebuttal testimony, DiLello explained that there

was a list of usernames and passwords “kept right next to the

iMac computer.” After he was cross-examined, defense counsel sought an opportunity to have DiLello identify the password list, and the district court refused. Ganoe challenges the

district court’s ruling, a decision reviewed for abuse of discretion. See United States v. Blackstone, 56 F.3d 1143, 1145 (9th

Cir. 1995). 

[8] Ganoe’s own argument reveals why there was no abuse

of discretion. In explaining why the list should have been

admitted, he states that “DiLello would have testified the list

was visible and physically close to the iMac computer and

was used to access the internet accounts by persons other than

Tyrone Ganoe.” The problem is that DiLello did testify that

the password list “was kept right next to the iMac computer.”

When asked whether anyone using the computer could have

logged on to the password-protected accounts by using the

passwords on the list, DiLello answered “[i]f they so wished

they could, yes.” This was made perfectly clear without the

paper upon which the passwords were written. The actual list

may have added a measure of credibility to DiLello’s testiUNITED STATES v. GANOE 10749
mony in the jury’s eyes, but it was cumulative, and the district

court did not abuse its discretion by excluding it. 

D. The district court did not abuse its discretion in

admitting evidence that firearms were seized from

Ganoe’s home. 

Ganoe objects to the admission of evidence that numerous

firearms, including assault rifles, were seized from his home

during the execution of the search warrant. Agent Murphy,

who assisted Agent Condon, testified that during the search

Ganoe was asked if there were firearms in the home. Ganoe

directed the agents to the “music room” attached to the garage

— the same room in which the computer was located. Murphy testified that within the room there were two separate

cases in which assault rifles were secured, and that agents also

found a “substantial number” of “legal-to-possess” hunting

rifles, shotguns, and possibly antique weapons throughout the

rest of the house. 

[9] Ganoe contends that such evidence was prejudicial and

“irrelevant to charges that a defendant, using a computer,

received or possessed images of child pornography.” The district court did not abuse its discretion in ruling to the contrary.

The evidence was relevant to demonstrate Ganoe’s ownership

and control over the music room and the items found in it. We

reject Ganoe’s contention that the firearms were cumulative

for that purpose due to previous testimony that he kept his

guitars and their cases in the music room. Because assault

rifles are dangerous and heavily regulated, it is unlikely that

visitors would have unfettered access to the room in which

they were kept. Furthermore, the district court instructed the

jury that evidence concerning the firearms could be considered “only as it bears on the defendant’s knowledge, identity,

or absence of mistake or accident in the commission of the

charged crimes,” and not for any other purpose. The district

court did not abuse its discretion by allowing the govern10750 UNITED STATES v. GANOE
ment’s introduction of firearms evidence to rebut the Ray

Rodriguez defense. 

E. There is no cumulative error. 

Ganoe urges us to conclude that the cumulative effect of

the four evidentiary rulings discussed above deprived him of

a fair trial. As we have explained, we discern no error in the

district court’s decisions regarding the child pornography, the

password list, and the firearms evidence. As we have also

explained, any error in the district court’s refusal to allow Serrano to be questioned about prior instances of dishonesty was

harmless beyond a reasonable doubt in light of the overwhelming evidence of Ganoe’s guilt. There is no cumulative

error warranting reversal. Cf. United States v. Wallace, 848

F.2d 1464, 1475 (9th Cir. 1988). 

F. The district court correctly denied the motion to

suppress evidence obtained from Ganoe’s computer.

[10] Ganoe asserts that when Agent Rochford used

LimeWire to access the child pornography files on his computer, Rochford conducted a warrantless search that was illegal under the Fourth Amendment. The district court denied

Ganoe’s motion to suppress evidence obtained from Rochford’s search on the grounds that having installed file sharing

software on his computer, Ganoe “knew or should have

known that the software might allow others to access his computer” and thus lacked a reasonable expectation of privacy in

the files stored on his computer. We agree and affirm the

denial of the motion to suppress. 

Although as a general matter an individual has an objectively reasonable expectation of privacy in his personal computer, see United States v. Heckenkamp, 482 F.3d 1142, 1146

(9th Cir. 2007), we fail to see how this expectation can survive Ganoe’s decision to install and use file-sharing software,

thereby opening his computer to anyone else with the same

UNITED STATES v. GANOE 10751
freely available program. The crux of Ganoe’s argument is

that he simply did not know that others would be able to

access files stored on his own computer. But he knew he had

file-sharing software on his computer; indeed, he admitted

that he used it — he says to get music. Moreover, he was

explicitly warned before completing the installation that the

folder into which files are downloaded would be shared with

other users in the peer-to-peer network. Ganoe thus opened up

his download folder to the world, including Agent Rochford.

To argue that Ganoe lacked the technical savvy or good sense

to configure LimeWire to prevent access to his pornography

files is like saying that he did not know enough to close his

drapes. Having failed to demonstrate an expectation of privacy that society is prepared to accept as reasonable, Ganoe

cannot invoke the protections of the Fourth Amendment. See

United States v. Bautista, 362 F.3d 584, 589 (9th Cir. 2004).

G. Sentencing contentions

In conducting its sentencing analysis the district court used

a base offense level of 17, pursuant to the 2003 version of

U.S.S.G. § 2G2.2 . This sentencing guideline applies to “Trafficking in Material Involving the Sexual Exploitation of a

Minor; Receiving, Transporting, Shipping, or Advertising

Material Involving the Sexual Exploitation of a Minor; Possessing Material Involving the Sexual Exploitation of a Minor

with Intent to Traffic.” Ganoe asserts that the district court

should have applied U.S.S.G. § 2G2.4 , which is titled “Possession of Materials Depicting a Minor Engaged in Sexually

Explicit Conduct” and provides a base offense level of 15.

The essence of Ganoe’s position is that his offense was possessory in nature, lacking the intent or conduct associated

with trafficking.2

2This view was shared by the probation officer, who calculated the recommended sentence using U.S.S.G. § 2G2.4. 

10752 UNITED STATES v. GANOE
[11] The problem with this contention is that the statutory

index for the 2003 sentencing guidelines, under which Ganoe

was sentenced, allows the district court to apply either

§ 2G2.2 or § 2G2.4 to violations of 18 U.S.C. § 2252A. The

index instructs the district court to use the guideline “most

appropriate for the offense conduct charged in the count of

which the defendant was convicted.” The district court did so,

beginning with the observation that both the statute and the

guidelines present two categories of conduct — simple possession and “everything else.” Noting that Ganoe was convicted of two counts of receiving child pornography, the

district court determined that this took him out of the realm

of simple possession and into the world of § 2G2.2 which

applies to receiving and a host of other activities, even though

“[s]imple receiving is likely the least serious of these various

charges.” The district court did not err in its interpretation of

the guidelines or abuse its discretion in applying § 2G2.2 to

Ganoe’s conduct. See United States v. Rising Sun, 522 F.3d

989, 993 (9th Cir. 2008). 

Nor are we able to identify clear error in the district court’s

imposition of a $15,000 fine, as it is the defendant’s burden

to establish that he is unable to pay. See United States v. Reardon, 349 F.3d 608, 617 (9th Cir. 2003). That there may be

uncertainty in the record about Ganoe’s ability to pay reflects

that Ganoe failed to carry that burden. 

The judgment of the district court is therefore AFFIRMED.

UNITED STATES v. GANOE 10753