1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-3863

_____________

UNITED STATES OF AMERICA

v.

PAUL E. PAVULAK

 Appellant

_____________

On Appeal from the United States District Court

for the District of Delaware

District Court No. 1-09-cr-00043-001

District Judge: The Honorable Sue L. Robinson

Argued September 13, 2012

Before: SMITH, and CHAGARES, Circuit Judges

and ROSENTHAL, District Judge

 



The Honorable Lee H. Rosenthal, United States District 
2

(Filed: November 21, 2012)

Jack A. Meyerson

Matthew L. Miller [ARGUED]

Meyerson & O‘Neill

1700 Market Street

Suite 3025

Philadelphia, PA 19103

Counsel for Appellant

Bonnie L. Kane

Andrew M. McCormick

United States Department of Justice

Criminal Division, Public Integrity Section

1400 New York Avenue, N.W.

Washington, DC 20530

Edward J. McAndrew [ARGUED]

Office of United States Attorney

1007 North Orange Street, Suite 700

P.O. Box 2046

Wilmington, DE 19899

Counsel for Appellee

 

Judge for the United States District Court for the 

Southern District of Texas, sitting by designation.
3

________________

 OPINION

________________

SMITH, Circuit Judge.

The Delaware State Police obtained search 

warrants for Paul Pavulak‘s email account and workplace 

after receiving information that he was viewing child 

pornography on his workplace computers. The evidence

that was seized confirmed Pavulak‘s involvement in child 

pornography, and a jury subsequently convicted him of 

possessing and attempting to produce child pornography, 

attempting to entice a minor, and committing crimes 

related to his status as a sex offender. The District Court 

sentenced him to life imprisonment on the attemptedproduction conviction and to 120 months‘ imprisonment 

on the remaining counts.

Pavulak now contends that the District Court 

should have suppressed the evidence obtained pursuant to

the warrants. He argues that the magistrate lacked 

probable cause to issue the search warrants. Those 

search warrants were supported by an affidavit that

pointed to Pavulak‘s prior child-molestation convictions 

and labeled the images, which had been reported by 

informants, simply as ―child pornography.‖ No further 

details concerning the images‘ content appeared in the 

affidavit. We conclude that the affidavit was insufficient 
4

to establish probable cause for child pornography. 

However, because the officers reasonably relied on the 

warrants in good faith, we agree that the District Court 

properly denied suppression. Pavulak‘s remaining 

challenges to his convictions and life sentence are 

meritless. We will therefore affirm his convictions and 

sentence.

I.

A. Factual Background

This is not Paul Pavulak‘s first encounter with the 

criminal law. He has twice pled guilty to unlawful sexual 

contact in the second degree under Delaware law—once 

in June 1998 and again in April 2005. The first 

conviction was for molesting the eleven-year-old 

daughter of his live-in girlfriend from September 1997

through January 1998. As a result, the Delaware 

Superior Court sentenced Pavulak to four years‘ 

probation. While on probation for that conviction during 

the summer of 1999, Pavulak repeated similar conduct 

with the nine-year-old daughter of his new girlfriend, 

resulting in a second conviction in 2005 and two years in 

prison.1

These state convictions required Pavulak to 

 

1

The record does not identify the reason for the delay 

between Pavulak‘s conduct and the second conviction.
5

register as a sex offender and to keep his residential,

work, and email addresses up to date with the Delaware 

State Police. After being released from prison on July 1, 

2008, Pavulak purported to do exactly that. He informed 

the Delaware State Police that he was unemployed and 

staying at the Fairview Inn in Wilmington, Delaware. 

Throughout the remainder of the year, Pavulak 

maintained this account of unemployment and hotel 

living.

But the Delaware State Police soon discovered that 

Pavulak was not telling the whole story. In October 

2008, Delaware State Police Detective Robert Jones 

received a hotline call from Erica Ballard. Ballard 

informed the police that her husband Curtis Mack, an 

employee at Concrete Technologies, Inc. (―CTI‖), had 

observed Pavulak working and living part-time at the 

CTI office since his release, information that his sexoffender registration did not include. Ballard also told 

the police that Pavulak was planning a trip to the 

Philippines where he intended to meet women. Detective 

Jones followed up with Mack, who not only confirmed 

his wife‘s tip but also provided additional details. 

According to Mack, Pavulak was using an unregistered 

Yahoo! email address (Pavy224@yahoo.com), was 

accessing sexually suggestive images of children on 

computers at the CTI office, and had scheduled a monthlong trip to the Philippines between December 2008 and 

mid-January 2009. Detective Jones also contacted 
6

another CTI employee, Jahdel Riggs, who confirmed all 

of Mack‘s information except Pavulak‘s email address.

Through investigation, the Delaware State Police

successfully corroborated some of the information 

provided by Mack and Riggs. As confirmed by federal 

agents and Pavulak‘s updated Delaware Sex Offender 

Registry address, Pavulak was in the Philippines from 

early December 2008 to January 2009. By subpoenaing 

Yahoo!, the police also discovered that the 

Pavy224@yahoo.com email account was created by a 

―Mr. Paul Pavy,‖ was accessed from the CTI office on 

December 8, 2008, and was accessed from the 

Philippines from December 10, 2008, through January 6, 

2009. The police further verified the existence and 

location of the CTI office, its ownership by Pavulak‘s 

adult children, and his Delaware state convictions—

leading the police to obtain an arrest warrant for 

Pavulak‘s failure to register his employment at CTI.

Armed with the informants‘ information and the 

results of their investigation, Detective Nancy Skubik of 

the Delaware State Police Child Predator Task Force

applied to the Delaware Superior Court for New Castle 

County for warrants to search the CTI office and the 

Pavy224@yahoo.com account for child pornography. In 

her probable-cause affidavit2for both warrant 

 

2

The affidavits for both search-warrant applications are 

identical in all aspects relating to the probable-cause 
7

applications, Detective Skubik described the two tips, 

Pavulak‘s prior Delaware convictions from 1998 and 

2005, and the information corroborated by her 

investigation. The affidavit relayed that Riggs had seen 

Pavulak ―viewing child pornography‖ of females 

―between 16 and 18 years old‖ and Mack had seen 

―images of females between the ages of 12 to 15 years on 

Pavulak‘s computer‖ that had been sent to Pavulak via 

email. But the affidavit neither defined what was meant 

by the label ―child pornography‖ nor provided any 

further details about the images‘ content.

Based on that affidavit, the Delaware Superior 

Court issued search warrants on January 13, 2009, for the 

CTI office and Yahoo! account. Early in the morning of

January 19, Delaware State Police officers, including 

Detectives Jones and Skubik, executed the search warrant 

at CTI‘s office. The police arrested Pavulak, the only 

person present in the CTI office, based on outstanding 

warrants for failure to register his employment at CTI

and his Yahoo! email address. After receiving his 

Miranda rights,

3

Pavulak admitted that he worked for 

CTI and used the Pavy224@yahoo.com email address 

while in the Philippines. 

During the search, officers seized two computers. 

 

determination, so we refer to them as though they were a 

single affidavit.

3

See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
8

The first, a Hewlett-Packard laptop, was found in a rear 

office where Pavulak appeared to be living; a bed, his 

clothing, and toiletries were in the room. The laptop was 

locked by a single password-protected Windows user 

account. The second computer, a Hewlett-Packard 

desktop, was recovered from the receptionist area. Each 

computer contained thousands of images of child 

pornography.

Yet the search uncovered more than just the 

sought-after images of child pornography. Evidence 

recovered from the computers revealed that, in August 

2008, Pavulak used his Yahoo! username ―Pavy224‖ to 

create a profile on www.cherryblossoms.com, a website 

allegedly used by sex tourists for soliciting prostitutes in 

the Philippines. This website led him to Ara Duran, a 

twenty-two-year-old Philippine woman and mother of 

two-year-old Jane Doe.

4

 Emails that Pavulak sent Duran 

showed his immediate interest in the age and sex of 

Duran‘s child. Pavulak told Duran (via email) that he 

was looking for a wife with an ―aggressive‖ and ―very 

active open sex desire‖5similar to his own and who was 

willing to ―experiment with different possibilities about 

sex.‖ On October 1, Duran responded, believing them to 

 

4

Like the parties, we refer to the daughter as ―Jane Doe‖ 

to protect her privacy.

5 Any typographical errors in text messages or chat logs 

appear in Pavulak‘s original communications.
9

be a ―good match‖ and indicating that she ―bought more 

panties‖ for herself and her daughter. Pavulak looked 

forward to ―dressing‖ Duran and her daughter. The two 

made plans to meet around Christmas during Pavulak‘s 

trip to the Philippines. He reserved a hotel room for their 

meeting, preferring the ―matrimonial room‖ as his first 

choice because it had a ―king size bed‖ in which the three 

of them would ―fit fine.‖ While awaiting their 

rendezvous, Pavulak ―reall[y] want[ed] to see pictures‖ 

of Duran and Jane Doe—a request that Duran obliged.

While Pavulak was in the Philippines, he visited 

several women he met online and spent time with Duran 

and Jane Doe. He took photographs of Duran and Jane 

Doe, some of which depicted Duran or Pavulak nude or 

engaging in sexual activity. He also recorded videos of 

his sexual activity with Duran, one of which portrays

Duran performing oral sex on Pavulak. That video, as 

Pavulak tells her, ―will be [Jane Doe‘s] training video‖ so 

Duran can ―show her how to [perform oral sex].‖

During Pavulak‘s return to the United States, he 

sent Duran several text messages about including Jane 

Doe in their sexual activities. He ―hope[d]‖ that Jane 

Doe would ―like it too‖; asked Duran to ―teach her 

everything‖; indicated he would perform oral sex on Jane 

Doe and instructed Duran to do so in the interim ―so she 

likes it‖;

6

and wondered if Duran‘s ―really good‖ 

 

6

This text message remained in Pavulak‘s unsent 
10

instruction of Jane Doe would allow Jane Doe to perform 

oral sex on Pavulak ―next December.‖ Pavulak believed 

that Duran could ―make it all work out for the three of 

[them]‖ to have a ―happy sex life.‖ Eager to see them 

again soon, Pavulak scheduled an online webcam chat

with Duran for the morning of January 18.

That morning, Pavulak chatted with Duran using 

the laptop from the CTI office. They discussed Jane 

Doe‘s involvement in their sexual activities. We regret 

the need to recite in detail several of these ―chats,‖ but 

the content is necessary to some of the conclusions we 

reach in our discussion below.

Duran: I showed [Jane Doe] how to 

masturbate hon

* * *

Pavulak: does she try to do it

Pavulak: if u play with her pussy a lot 

then by the time i get there she 

will want me to play with her

Duran: i caught her many times hon 

always playing with her pussy

Pavulak: i wish she would just spread her 

 

message folder.
11

legs and let me lick her

Duran: sometimes when I catch her 

playing her pussy, I spank her

Pavulak: why

Pavulak: u should encourage her

Duran: shes so young playing with it

Pavulak: n o she is not

Duran: I think 5 will be better

Duran: 5 years old

Pavulak: she plays with it because it 

feels good to her

Pavulak: [t]here is no age

Pavulak: on when

Duran: her pussy now is very red

Pavulak: look up on the computer 

―young children masturbation‖

Pavulak: and u will find articcles about it

Duran: ok i will look up in the 

computer tomorrow hon
12

When Pavulak expressed ―hope‖ that he could see Jane 

Doe use a vibrator, Duran assured him that he would. 

Pavulak also hoped to engage in sexual activity with Jane 

Doe:

Pavulak: u think i can finger fuck her at age 5

Duran: well..just try hon

Duran: just use ur small finger hon

Duran: i think it will be fit to her pussy

Pavulak: hope she likes to suck cock hon

Duran: at age 8 she will know if ur cock taste 

good or not

* * *

Pavulak: im going to shoooot cum in her mouth 

at age three when i come back there

Duran: hehehehe

Pavulak: u just tell her to suck it out of me hon

* * *

Pavulak: u just keep showing her the movie 

how u suck me
13

Pavulak: so she will know

He continued to insist that Duran show the training video 

to Jane Doe and ―tell [Jane Doe] that it feels so good to‖ 

perform oral sex. Pavulak then tried to get Duran to 

display her and Jane Doe‘s vaginas via the webcam:

Pavulak: take ur panties off hon and show me

ur pussy

Duran: i only show my pussy to u hon

Pavulak: well im waiting hon

Duran: not now hon

Duran: tuesday

Pavulak: why

Pavulak: hehe

Pavulak: no now

Duran: i try

Pavulak: and [Jane Doe‘s] too

* * *

Pavulak: nice thanks

Pavulak: cum for me
14

Pavulak: hehe

Pavulak: now [Jane Doe‘s]

Duran: hehee

Duran: diapers on

Pavulak: oh

Duran: u cant see [Jane Doe‘s] pussy

Pavulak: well maybe sometime soon

Duran: yup

Duran: morning u can see her naked hon

Pavulak: ok

The Delaware State Police recovered these chat 

logs between Pavulak and Duran from the laptop 

computer. In addition, the police discovered that twentynine of the child pornography images and forty-two 

images of Pavulak and Duran were accessed and edited 

using Windows Photo Gallery between September 13, 

2007, and November 22, 2008. 

B. Procedural Background

With the discovery of those chat logs in addition to 

the child-pornography images, the United States took 
15

over Pavulak‘s prosecution. In April 2009, the United 

States indicted Pavulak on five counts in the United 

States District Court for the District of Delaware: (1) 

failing to update his registration as a sex offender in 

violation of 18 U.S.C. § 2250(a); (2) possessing child 

pornography in violation of 18 U.S.C. § 2252A(a)(5)(B); 

(3) attempting to produce child pornography in violation 

of 18 U.S.C. § 2251(a) and (e); (4) attempting to coerce 

and entice a minor in violation of 18 U.S.C. § 2422(b); 

and (5) committing a felony offense involving a minor 

while registered as a sex offender in violation of 18 

U.S.C. § 2260A.

Before trial, Pavulak moved to suppress the 

evidence seized from the CTI office and his Yahoo! 

account. He made two arguments: first, that the search 

warrants were not based on probable cause because they 

did not provide the magistrate7 with any details about 

what the alleged child-pornography images depicted, and 

second, that he was entitled to a hearing under Franks v. 

Delaware, 438 U.S. 154, 155–56 (1978), to challenge the 

veracity of several facts alleged in the probable-cause 

affidavit. The District Court denied his motion. The 

Court concluded that there was probable cause, and even 

 

7 We use the term ―magistrate‖ generally, referring to any 

member of the state or federal judiciary authorized to 

issue warrants (though in this case, a state issuing 

authority).
16

if there were not, the officers reasonably relied on the 

warrants in good faith. The Court also denied Pavulak‘s 

request for a Franks hearing after determining that 

Pavulak did not make a substantial preliminary showing 

that any misstatements or omissions affected the 

probable-cause analysis.

Pavulak proceeded to trial in September 2010. 

After a six-day trial, the jury found him guilty on all 

counts. In January 2011, Pavulak moved for a judgment 

of acquittal on all counts under Federal Rule of Criminal 

Procedure 29 based on insufficient evidence. In addition, 

Pavulak argued that Mack‘s and Riggs‘s trial testimony 

was inconsistent with the information they provided for

the search-warrant affidavit. And this inconsistency, 

according to Pavulak, justified a post-trial Franks hearing 

to challenge the veracity of Mack‘s and Riggs‘s tips in 

the affidavit, leaving the search warrants without

probable cause and ultimately entitling Pavulak to a new 

trial under Rule 33. The District Court denied these 

motions.

Pavulak‘s pre-sentence report (PSR) gave rise to 

several objections. As to Pavulak‘s attempted-production 

conviction, the Probation Office advised that his prior 

Delaware convictions subjected him to mandatory life

imprisonment under 18 U.S.C. § 3559(e) as a repeat sex 

offender. Pavulak objected to this recommendation, 

arguing that his maximum statutory sentence was fifty

years and that Apprendi v. New Jersey, 530 U.S. 466, 490 
17

(2000), thus required a jury to determine whether his 

prior Delaware convictions could justify any increase 

beyond that fifty-year maximum. The District Court 

rejected that argument. Because Pavulak‘s maximum 

sentence was life imprisonment, the Court reasoned that 

Apprendi did not apply. Consequently, the District Court 

found that Pavulak‘s prior convictions triggered 

mandatory life imprisonment under § 3559(e) for his 

attempted-production conviction and sentenced him 

accordingly. As to his other counts, the District Court 

sentenced Pavulak to a consecutive term of 120 months‘ 

imprisonment for committing a felony offense involving 

a minor while registered as a sex offender and 120 

months‘ imprisonment for the remaining counts to run 

concurrently with each other and the attemptedproduction count.

Pavulak timely appealed both his convictions and 

life sentence.

8

II.

According to Pavulak, the affidavit submitted in 

support of the search-warrant applications did not 

establish probable cause because it lacked any details 

about what the alleged images of child pornography 

 

8

The District Court had jurisdiction under 18 U.S.C. 

§ 3231. We have jurisdiction over Pavulak‘s appeal 

under 28 U.S.C. § 1291.
18

depicted. On appeal from the denial of a motion to 

suppress, we review a district court‘s factual findings for 

clear error, and we exercise de novo review over its 

application of the law to those factual findings. United 

States v. Coles, 437 F.3d 361, 365 (3d Cir. 2006). Here, 

we cannot say that the affidavit provided a ― ̳substantial 

basis‘ for the magistrate‘s conclusion that there was a 

 ̳fair probability‘‖ of evidence of child pornography in 

the CTI office and Pavulak‘s Yahoo! account at the time 

of the search. United States v. Vosburgh, 602 F.3d 512, 

526 (3d Cir. 2010) (quoting Illinois v. Gates, 462 U.S. 

213, 238 (1983)). But suppression is ultimately 

inappropriate because the officers relied on the warrants 

in good faith. 

When faced with a warrant application to search 

for child pornography, a magistrate must be able to 

independently evaluate whether the contents of the 

alleged images meet the legal definition of child 

pornography. New York v. P.J. Video, 475 U.S. 868, 

874 n.5 (1986). That can be accomplished in one of three 

ways: (1) the magistrate can personally view the images; 

(2) the search-warrant affidavit can provide a 

―sufficiently detailed description‖ of the images; or (3) 

the search-warrant application can provide some other 

facts that tie the images‘ contents to child pornography. 

United States v. Miknevich, 638 F.3d 178, 183 (3d Cir. 

2011); see also Vosburgh, 602 F.3d at 527 (holding that 

probable cause supported a warrant where the affidavit 
19

tied the images of child pornography to the defendant 

using his IP address, a ―fairly unique identifier[]‖). 

In this case, the search-warrant applications

alleged that Pavulak was ―dealing in child pornography‖ 

in violation of 11 Del. Code § 1109. That statute 

prohibits transmitting, receiving, and possessing 

depictions of ―a child engaging in a prohibited sexual act 

or the simulation of such an act.‖ 11 Del. Code § 1109. 

A ―prohibited sexual act‖ includes a wide range of sexual 

activity, including ―nudity . . . depicted for the purpose of 

sexual gratification of any individual‖ who may view the 

depiction as well as ―lascivious exhibition of the genitals 

or pubic area of any child.‖ Id. § 1103(e). 

To show that evidence of Pavulak‘s dealing in 

child pornography existed at the CTI office and in his 

Yahoo! account, the affidavit relied on three pieces of 

information. First, Pavulak had two prior convictions for 

child molestation. Second, the affidavit stated that Mack 

and Riggs had seen Pavulak ―viewing child 

pornography‖ of females between twelve and eighteen 

years old, though the affidavit did not provide any further 

details about what the images depicted. Third, officers 

were able to corroborate Pavulak‘s ownership of the 

Yahoo! email account, his trip to the Philippines, and his 

presence at the CTI office.

Despite our ―great deference‖ to the magistrate‘s 

determination, Gates, 462 U.S. at 236, these pieces of 
20

information do not establish probable cause to believe 

that the images contained child pornography. The label 

―child pornography,‖ without more, does not present any 

facts from which the magistrate could discern a ―fair 

probability‖ that what is depicted in the images meets the 

statutory definition of child pornography and complies 

with constitutional limits. The affidavit does not 

describe, for instance, whether the minors depicted in the 

images were nude or clothed or whether they were 

engaged in any ―prohibited sexual act‖ as defined by 

Delaware law. As we said in Miknevich, that kind of

―insufficiently detailed or conclusory description‖ of the 

images is not enough. 638 F.3d at 183. Presented with 

just the label ―child pornography,‖ the most the 

magistrate could infer was that the affiant concluded that

the images constitute child pornography. 

The problem with that inference is that identifying 

images as child pornography ―will almost always 

involve, to some degree, a subjective and conclusory 

determination on the part of the viewer,‖ and such

―inherent subjectivity is precisely why the determination 

should be made by a judge,‖ not the affiant. United 

States v. Brunette, 256 F.3d 14, 18 (1st Cir. 2001). 

Otherwise, ―we might indeed transform the [magistrate] 

into little more than the cliché  ̳rubber stamp.‘‖ Doe v. 

Goody, 361 F.3d 232, 243 (3d Cir. 2004). Other circuits 

agree that a probable-cause affidavit must contain more 

than the affiant‘s belief that an image qualifies as child 
21

pornography. United States v. Doyle, 650 F.3d 460, 474 

(4th Cir. 2011) (holding that there was no probable cause 

where the affidavit did not provide ―anything more than a 

description of the photographs as depicting ―nude 

children‖); Brunette, 256 F.3d at 18 (holding that there 

was no probable cause where an affidavit involved an 

affiant‘s ―legal conclusion parroting the statutory 

definition‖ of child pornography ―absent any descriptive 

support and without an independent review of the 

images‖ by a magistrate).

The government cites several cases for the 

proposition that the label ―child pornography,‖ by itself,

is sufficient. All but one of those cases, however, fall far 

short of supporting the government‘s argument. 

Although the affidavits in Miknevich and Vosburgh did 

not describe the contents of the images, the 

circumstances of those cases required no such 

description. In Miknevich, the affidavit identified the 

contents of the computer file as child pornography 

through a sexually explicit and highly descriptive file 

name referring to the ages of the children and implying

that they were masturbating. 638 F.3d at 184. The file‘s 

―digital fingerprint‖ also marked it as one known to 

contain child pornography. Id. at 185. We upheld that 

warrant, reasoning that the file name was ―explicit and 

detailed enough so as to permit a reasonable inference of 

what the file is likely to depict.‖ Id. No such indication 

is present in this case.
22

Vosburgh involved a defendant who tried to 

download a link to a video described on the website as 

depicting a four-year-old performing oral sex—a video 

that contained only gibberish because it had been planted 

by law enforcement. 602 F.3d at 517. The officer 

tracked the download attempt to the defendant‘s 

computer and obtained a warrant to search for child 

pornography. Id. We upheld that warrant because the 

defendant‘s deliberate attempt to download child 

pornography established a fair probability that he 

possessed other images of child pornography. Id. The 

probable-cause determination there, unlike this case, was 

not based on the affiant‘s knowledge that the defendant 

possessed child pornography, so there were no illicit 

depictions to describe in the affidavit. Id. So, too, in 

United States v. Simpson, 152 F.3d 1241 (10th Cir. 

1998). There, the affidavit described the defendant‘s 

agreement to ―send a computer diskette with numerous 

scenes of prepubescent children under the age of 

thirteen‖ to an undercover officer ―in exchange for a 

videotape containing scenes of child pornography.‖ Id.

at 1246–47. Finally, the government‘s reliance on 

United States v. Grosenheider, 200 F.3d 321 (5th Cir. 

2000), and United States v. Budd, 549 F.3d 1140 (7th Cir. 

2008), is unhelpful. Those cases do not specify what 

information was presented in the affidavits.

That leaves the government‘s position dependent 

entirely on United States v. Grant, 490 F.3d 627 (8th Cir. 
23

2007). In Grant, the Eighth Circuit upheld a warrant to 

search for child pornography based on an officer‘s 

conclusion that images observed by an informant met the 

statutory definition of child pornography. Id. at 630, 632. 

We decline to adopt the Eighth Circuit‘s approach. 

Magistrates—not affiants or officers—bear the 

responsibility of determining whether there exists a fair 

probability that the sought-after images meet the 

statutory and constitutional definitions of child 

pornography. Cf. P.J. Video, 475 U.S. at 876–77 

(reviewing the search-warrant affidavit to ensure that the 

magistrate ―was given more than enough information to 

conclude that there was a fair probability that the movies 

satisfied the first and third elements of the statutory 

definition‖ of obscenity (emphasis added)). In any event, 

we believe the Supreme Court‘s decision in P.J. Video, 

together with our own precedent in Vosburgh and 

Miknevich, compel us to require more than a conclusion

by an affiant that the sought-after images constitute child 

pornography.

Nor does combining the label ―child pornography‖ 

with the rest of the information in the affidavit produce 

something greater than the sum of its parts. Pavulak‘s 

prior child-molestation convictions are ―not sufficient to 

establish—or even to hint at—probable cause as to the 

wholly separate crime of possessing child pornography‖

absent any allegation of a correlation between the two 

types of crimes. Virgin Islands v. John, 654 F.3d 412, 
24

419 (3d Cir. 2011). That correlation between the two 

crimes is the missing linchpin that differentiates this case 

from the Eighth Circuit‘s decision in United States v. 

Colbert, 605 F.3d 573, 577–78 (8th Cir. 2010). There, 

the defendant was ―pushing a five-year-old girl (whom 

he did not know) on a playground swingset while talking 

to her  ̳about movies‘ and videos the man had at his 

home.‘‖ John, 654 F.3d at 422 (describing Colbert, 605 

F.3d at 575). Based on that information, officers 

obtained a warrant to search his home for child 

pornography. Colbert, 605 F.3d at 575–76. The Eighth 

Circuit upheld the warrant, concluding that the 

combination of the defendant‘s ―specific desire to watch

movies at home with an unrelated five-year-old girl‖ and 

his ―contemporaneous attempt to entice‖ her established 

probable cause to believe those movies contained child 

pornography. Id. By contrast, Detective Skubik‘s 

affidavit did not link Pavulak‘s prior acts of child 

molestation to the sought-after images. See John, 654 

F.3d at 422 (distinguishing Colbert on this basis). His

criminal history thus does not provide any additional 

reason to believe that these specific images met the legal 

definition of child pornography under Delaware law.

Likewise, the successful corroboration of certain 

details about Pavulak‘s other activities does not save the 

warrants. To be sure, a ― ̳tip conveying a 

contemporaneous observation of criminal activity whose 

innocent details are corroborated‘‖ can establish probable 
25

cause of that criminal activity. United States v. Torres, 

534 F.3d 207, 211 (3d Cir. 2008) (quoting United States 

v. Wheat, 278 F.3d 722, 735 (8th Cir. 2001)). But the 

details corroborated in this case—Pavulak‘s email 

account, his trip to the Philippines, and residence and 

employment at the CTI office—did not increase the 

likelihood that the sought-after images contained 

lascivious depictions of nude minors or minors engaging 

in sexual acts prohibited by Delaware law. As a result,

the label ―child pornography‖—without any details about 

what the images depict or any other connection to child 

pornography—is beyond the outer limits of probablecause territory.

Even though the warrants in this case transgressed

that boundary, the evidence should not be suppressed 

because the officers relied on the warrant in good faith. 

Suppression is not justified when officers act in the 

―reasonable belief that their conduct d[oes] not violate 

the Fourth Amendment.‖ United States v. Leon, 468 U.S. 

897, 918 (1984). ―Ordinarily, the  ̳mere existence of a 

warrant . . . suffices to prove that an officer conducted a 

search in good faith.‘‖ United States v. Stearn, 597 F.3d 

540, 561 (3d Cir. 2010) (quoting United States v. Hodge,

246 F.3d 301, 307–08 (3d Cir. 2001)). Yet there are

situations ―in which, although a neutral magistrate has 

found probable cause to search, a lay officer executing 

the warrant could not reasonably believe that the 

magistrate was correct.‖ Id. Those four ―rare 
26

circumstances‖ occur when:

(1) the magistrate issued the warrant in 

reliance on a deliberately or recklessly 

false affidavit;

(2) the magistrate abandoned his judicial 

role and failed to perform his neutral 

and detached function;

(3) the warrant was based on an affidavit 

so lacking in indicia of probable cause 

as to render official belief in its 

existence entirely unreasonable; or

(4) the warrant was so facially deficient 

that it failed to particularize the place 

to be searched or the things to be 

seized.

Id. at 561 & n.19 (internal quotation marks and citations 

omitted). Here, Pavulak invokes only the third 

exception—that the affidavit was ―so lacking in indicia 

of probable cause as to render‖ the executing officers‘ 

belief unreasonable.9

 

9

To the extent Pavulak intends to invoke the first 

exception to good faith—that the magistrate issued the 

warrant in reliance on a deliberately or recklessly false 

affidavit—by arguing that he was entitled to a Franks
27

The ―threshold for establishing this exception is a 

high one,‖ Messerschmidt v. Millender, 132 S. Ct. 1235, 

1245 (2012), and Pavulak has not overcome that burden 

here. The affidavit in this case is not a ―bare bones‖ 

affidavit. It does not rely on an officer‘s unsupported 

belief that probable cause exists. See United States v. 

Ritter, 416 F.3d 256, 263 (3d Cir. 2005); see also Gates, 

462 U.S. at 239 (identifying the affidavits in Nathanson 

v. United States, 290 U.S. 41 (1933), and Aguilar v. 

Texas, 378 U.S. 108 (1964), as ―bare bones‖ affidavits 

because each contained only an officer‘s belief that 

probable cause existed without providing any factual 

details). It does not rely on a single piece of stale

evidence. See United States v. Zimmerman, 277 F.3d 

426, 437 (3d Cir. 2002). And it does not rely on an 

uncorroborated or unreliable anonymous tip. See United 

States v. Williams, 3 F.3d 69, 74 (3d Cir. 1993). 

Rather, the affiant (also one of the executing 

officers) knew that the affidavit had been prepared using 

first-hand information from Mack, a fellow employee 

who provided reliable and current knowledge of 

Pavulak‘s activities at the CTI office—information that 

was confirmed by another employee, Riggs. The affiant 

also knew that some of the information Mack and Riggs 

provided had been corroborated and that this information 

 

hearing, we reject that argument for the reasons set forth

in Parts III and VI.
28

had been circulated in a police memorandum and 

reviewed before the warrants were sought. In short, the 

officers reasonably relied on the warrant even though the 

supporting affidavit did not contain details about the 

content of the images.

And their reliance on the warrant despite the lack 

of those details is defensible in light of ―the state of 

Circuit law at the time.‖ Hodge, 246 F.3d at 309. The 

warrants were sought and issued in 2009, but the cases

leading us to conclude that the affidavit was

insufficient—Vosburgh, John, and Miknevich—were not 

decided until 2010 and 2011. In fact, the affidavit‘s 

allegations would have been sufficient in the Eighth 

Circuit at the time. See Grant, 490 F.3d at 630, 632

(upholding a search warrant based on an officer‘s 

conclusion that a witness‘s description of the images met 

the definition of child pornography under the state 

statute).

Pavulak counters that the good-faith exception is 

inapplicable because the affiant, Detective Skubik, was 

also involved in executing the search. That is not the 

law. To be sure, we have acknowledged that it is 

―somewhat disingenuous‖ to find good faith based on a 

―paltry showing‖ of probable cause, ―particularly where 

the affiant is also one of the executing officers.‖ 

Zimmerman, 277 F.3d at 438. Similarly, the Supreme 

Court has observed that an officer who both prepared the 

search-warrant application and carried out the search was 
29

familiar enough with the warrant to have noticed its 

deficiency upon ―even a cursory reading‖ or ―just a 

simple glance.‖ Groh v. Ramirez, 540 U.S. 551, 564 

(2004). Those observations, however, simply reinforce 

the longstanding rule that ―paltry‖ affidavits preclude 

good faith. Neither the Supreme Court nor this court has

created a new exception to good faith based entirely on 

the identity of the executing officer, and Pavulak fails to 

cite any court that has interpreted the Supreme Court‘s 

observation in Groh so broadly. The officers reasonably 

relied on the warrants in good faith and the District Court 

correctly denied Pavulak‘s motion to suppress.

III.

Pavulak also claims that the District Court erred by 

denying his request for a pre-trial Franks hearing. The 

Fourth Amendment prohibits the intentional or reckless 

inclusion of a material false statement (or omission of 

material information) in a search-warrant affidavit. 

United States v. Yusuf, 461 F.3d 374, 383–84 (3d Cir. 

2006). In Franks, the Supreme Court held that a 

defendant may be entitled to challenge the truthfulness of 

facts alleged in support of a search-warrant application. 

Franks, 438 U.S. at 164–65. The right to a Franks

hearing is not absolute, however. The defendant must 

first (1) make a ―substantial preliminary showing‖ that 

the affiant knowingly or recklessly included a false 

statement in or omitted facts from the affidavit, and (2) 

demonstrate that the false statement or omitted facts are 
30

―necessary to the finding of probable cause.‖ Yusuf, 461 

F.3d at 383–84. 

We have not yet identified the standard of review 

for a district court‘s denial of a request for a Franks

hearing, and our sister circuits are divided on the correct 

approach.10 See United States v. Falso, 544 F.3d 110, 

 

10 The Fourth, Fifth, and Ninth Circuits employ a mixed 

standard, reviewing legal determinations de novo and any 

supporting factual findings for clear error. See United 

States v. Allen, 631 F.3d 164, 171 (4th Cir. 2011); United 

States v. Martin, 332 F.3d 827, 833 (5th Cir. 2003); 

United States v. Chavez-Miranda, 306 F.3d 973, 979 (9th 

Cir. 2002). By contrast, the First, Sixth, and Seventh 

Circuits review a district court‘s decision for clear error, 

though it is unclear to what extent that clear-error review 

maps onto the Fourth, Fifth, and Ninth Circuits‘ mixed 

standard. See United States v. Smith, 576 F.3d 762, 764 

(7th Cir. 2009); United States v. Reiner, 500 F.3d 10, 14 

(1st Cir. 2007); United States v. Stewart, 306 F.3d 295, 

304 (6th Cir. 2002). The Second Circuit has apparently 

sided with mixed review, though then-Judge Sotomayor 

questioned the validity of that choice. Compare United 

States v. Cahill, 355 F. App‘x 563, 565 (2d Cir. 2009) 

(reviewing factual findings supporting the denial of a 

Franks hearing for clear error), and United States v. One 

Parcel of Property Located at 15 Black Ledge, 897 F.2d 

97, 100 (2d Cir. 1990) (same), with United States v. 
31

126 n.21 (2d Cir. 2008) (recognizing split); United States 

v. Becton, 601 F.3d 588, 594 (D.C. Cir. 2010) (citing 

United States v. Dale, 991 F.2d 819, 843–44 n.44 (D.C. 

Cir. 1993) (per curiam)) (same). We conclude that this 

case does not require us to enter the fray. Even under de 

novo review, none of the alleged errors identified by 

Pavulak would have changed the probable-cause 

determination.

Pavulak first says the affidavit omitted crucial 

information: although indicating that his prior Delaware 

convictions occurred in 1998 and 2005, the affidavit did 

 

Falso, 544 F.3d 110, 126 n.21 (2d Cir. 2008) 

(Sotomayor, J.) (questioning the propriety of clear-error 

review and noting that the Second Circuit has not 

―explain[ed] why that was the appropriate standard‖). 

Meanwhile, the Eighth Circuit has carved its own path, 

reviewing the district court‘s decision for abuse of 

discretion. See United States v. Kattaria, 553 F.3d 1171, 

1177 (8th Cir. 2009) (en banc) (per curiam). The 

Eleventh Circuit and D.C. Circuit have not yet decided 

what standard to use. See United States v. Becton, 601 

F.3d 588, 594 (D.C. Cir. 2010) (bypassing the need to 

adopt a standard); United States v. Sarras, 575 F.3d 

1191, 1219 n.37 (11th Cir. 2009) (same, though noting 

that a district court‘s decision to deny an evidentiary 

hearing on a motion to suppress is normally reviewed for 

abuse of discretion).
32

not explain that the conduct underlying both of those 

convictions occurred between 1997 and 1999. This halftruth, Pavulak says, was ―calculated to portray [him] as a 

persistent threat‖ even though ―at the time of the 

affidavit[,] he had not committed an offense for roughly 

10 years.‖ Appellant‘s Br. at 50. Yet when we add this

counterfactual information to the affidavit, it does not 

change our probable-cause determination. Yusuf, 461 

F.3d at 388 n.12 (―The omitted information is introduced 

into the affidavit in order to determine whether the 

omission was material.‖). As we concluded earlier, 

Pavulak‘s prior convictions of child molestation did not 

establish probable cause for the ―wholly separate crime 

of possessing child pornography.‖ John, 654 F.3d at 

419; see supra Part II. Given that the convictions

themselves do not change either the reasonableness or 

probable-cause determinations, when his underlying

conduct occurred is similarly irrelevant. Consequently, 

Pavulak has failed to show that ―there would have been 

no probable cause but for‖ the omission of when his prior 

conduct occurred. See United States v. Frost, 999 F.2d 

737, 743 (3d Cir. 1993).

The false statements Pavulak identifies are no 

more availing. He challenges paragraph 4 of the 

affidavit, which stated that Pavulak was viewing child 

pornography in October 2008 in CTI‘s office ―located at 

270 Quigley Blvd, New Castle DE 19720.‖ According to 

Pavulak, CTI‘s office was in Newport, Delaware, at that 
33

time and did not relocate to New Castle until later that 

month. See Appellant‘s Br. at 51. That mistake, though, 

does not undermine the existence of probable cause.

11

 

The import of that information was that Pavulak was 

viewing child pornography in CTI‘s only office—

wherever it was located—using CTI‘s computers and 

using his online Yahoo! account. See, e.g., United States 

v. Corral-Corral, 899 F.2d 927, 934 (10th Cir. 1990) 

(holding that inclusion of an ―innocent error‖ about the 

defendant‘s address in the affidavit was insufficient to 

satisfy the defendant‘s burden under Franks). This 

alleged misstatement did not meet Pavulak‘s burden.

Finally, the officers‘ internal memorandum stated 

that Pavulak ―molested the daughter of his Russian 

wife‖—a statement Pavulak claims is false because his 

Russian wife did not have a daughter. See Appellant‘s 

Br. at 52. Using this statement to challenge the search 

warrant, however, turns Franks on its head. The internal 

memorandum was not submitted in support of the searchwarrant application, and this statement about a daughter 

of his Russian wife was not mentioned in the probablecause affidavit. See Oral Arg. Tr. at 8, 38. If Franks

means anything, it means that the Fourth Amendment is 

not violated when officers choose to omit information of 

questionable veracity from their search-warrant 

 

11 Pavulak does not argue that the warrant authorized or 

resulted in a search of the wrong location.
34

applications. That is precisely what Franks encourages 

and exactly what the officers did here. In sum, Pavulak 

was not entitled to a pre-trial Franks hearing.

IV.

Pavulak further claims that the prosecutor‘s 

closing argument denied him due process. Donnelly v. 

DeChristoforo, 416 U.S. 637, 643 (1974). To determine

if that is true, we must ―weigh the prosecutor‘s conduct, 

the effect of the curative instructions and the strength of 

the evidence.‖ Moore v. Morton, 255 F.3d 95, 107 (3d 

Cir. 2001) (citing Darden v. Wainwright, 477 U.S. 168, 

182 (1986)). Where, as here, the defendant did not object 

to the alleged misconduct, we review the prosecutor‘s 

statements for plain error. United States v. Lee, 612 F.3d 

170, 193 (3d Cir. 2010). 

Although Pavulak complains that three of the 

prosecutor‘s statements infected his trial, we detect no 

fatal infirmity. First, Pavulak claims that the prosecutor

improperly relied on his four-day trip to Las Vegas as the 

basis for the failure-to-update charge. That argument 

mischaracterizes the record. To prove that Pavulak 

violated the Sex Offender Registration and Notification 

Act (―SORNA‖) by failing to update his registration, the 

prosecutor had to show that Pavulak (1) was a sex 

offender required to register under SORNA who (2) 

traveled in interstate or foreign commerce after 

SORNA‘s enactment and (3) knowingly failed to update 
35

his sex-offender registration as required by SORNA. See

United States v. Pendleton, 636 F.3d 78, 83 (3d Cir. 

2011) (citing 18 U.S.C. § 2250(a)). After pointing out 

Pavulak‘s status as a sex offender (the first element), the 

prosecutor relied on Pavulak‘s trips to Las Vegas and the 

Philippines to satisfy the jurisdictional requirement (the 

second element). The prosecutor then turned to the third 

element, relying on Pavulak‘s failure to update his 

registration while living in and employed at the CTI 

office. See JA616a (―Now, the problem for the defendant 

is that he never registered that address, that CTI address, 

as either a place of employment or a place that he was 

living.‖ (emphasis added)); see JA615a–31a (arguing that 

Pavulak was living and working at the CTI office). The 

prosecutor thus argued that Pavulak‘s time at the CTI 

office, not his Las Vegas trip, required him to update his 

SORNA registration.

Second, the prosecutor‘s momentary focus on the 

―big picture‖ did not improperly invite the jury to 

cumulate the evidence of the separate charges. The 

prosecutor began his closing argument by telling the jury 

that Pavulak had been charged with ―four different 

crimes‖ and then discussed the law and evidence for each 

count separately. See JA612a, 614a (inviting the jury to 

―walk through the charges and the evidence that proves 

the defendant guilty of each of them‖); see id. (discussing 

Count 1); SA300 (discussing Count 4), 321 (discussing 

Count 3), 325–26 (discussing Count 2). As he was 
36

wrapping up, the prosecutor made the following 

comment:

The other thing you see in the presentation 

from the defense is a divide and conquer 

strategy. They take four different crimes 

and they want to separate them and they 

want you to look at each one with blinders 

on. They don‘t want you to look at the big 

picture, because the big picture, folks, is 

really ugly for Mr. Pavulak. Same [modus 

operandi].

Although this comment is where Pavulak places the 

weight of his improper-cumulation argument, this 

comment cannot shoulder that load. Such a single, 

ambiguous remark—ameliorated by our presumption that 

the jury followed its instruction to consider the evidence 

for each charge separately, see United States v. Edmonds, 

80 F.3d 810, 825 (3d Cir. 1996), and the overwhelming 

evidence against Pavulak on each count—cannot 

constitute plain error. United States v. Riley, 621 F.3d 

312, 339 (3d Cir. 2010) (―The type of counsel 

misconduct that warrants granting a new trial is not 

generally a single isolated inappropriate comment, but 

rather repeated conduct that  ̳permeate[s]‘ the trial.‖ 

(citation omitted)); see also United States v. Brown, 254 

F.3d 454, 465 (3d Cir. 2001) (―[A] court should not 

lightly infer that a prosecutor intends an ambiguous 

remark to have its most damaging meaning or that a jury, 
37

sitting through a lengthy exhortation, will draw that 

meaning from the plethora of less damaging 

interpretations.‖ (citation omitted)).

Third, the prosecutor‘s discussion of the harm 

caused by production of child pornography was 

unobjectionable. The prosecutor stated:

As the thousands of images of child 

pornography on defendant‘s computers 

prove, physical and digital images can live 

on indefinitely. And think about the story 

behind each of those pictures.

The day before he was arrested, the 

defendant tried to have [Duran] put [Jane 

Doe] on the Webcam, exposing her vagina. 

He could have [recorded] that image, 

Detective Willey told us. If so, we‘d have 

yet another image of child pornography, 

another file that memorializes the actual 

sexual abuse of a real child, and the story in 

this case, the story that you heard last week, 

would lie behind that image forever, because 

each image memorializes the sexual 

exploitation of an actual child. That‘s why 

Congress has banned any person from 

producing, distributing, receiving, or 

possessing an image of child pornography.
38

These statements parallel Congress‘s reasons for 

criminalizing the production and attempted production of 

child pornography. See 18 U.S.C. § 2251. Besides, this

explanation preempted Pavulak‘s argument that Jane 

Doe‘s brief nudity on a webcam would not have

meaningfully harmed her. See R. 84 at 80; Appellant‘s 

Br. at 46 (calling Pavulak‘s actions ―minor, to the point 

of approaching triviality‖). In short, none of the 

prosecutor‘s remarks constitute plain error. 

V.

Pavulak also challenges whether the District Court 

erred by denying his motion for judgment of acquittal 

based on the sufficiency of the evidence supporting his 

attempted-production and possession convictions.12 We 

review a sufficiency-of-the-evidence claim de novo. 

United States v. Flores, 454 F.3d 149, 154 (3d Cir. 2006) 

(citing United States v. Brodie, 403 F.3d 123, 133 (3d 

Cir. 2005)). In doing so, we ― ̳examine the totality of the 

evidence, both direct and circumstantial,‘ and  ̳interpret 

the evidence in the light most favorable to the 

government as the verdict winner.‘‖ United States v. 

Starnes, 583 F.3d 196, 206 (3d Cir. 2009) (quoting 

United States v. Miller, 527 F.3d 54, 60, 62 (3d Cir. 

2008)). If ―all the pieces of evidence, taken together, 

make a strong enough case to let a jury find [the 

 

12 On appeal, Pavulak does not challenge the sufficiency 

of the evidence supporting his remaining convictions.
39

defendant] guilty beyond a reasonable doubt, then we 

must uphold the jury‘s verdict.‖ Brodie, 403 F.2d at 134 

(quoting United States v. Coleman, 811 F.2d 804, 807 

(3d Cir. 1987)).

Here, Pavulak‘s challenge to his conviction for 

knowingly possessing child pornography falls short of its

―extremely high‖ burden. Starnes, 583 F.3d at 206 

(quoting United States v. Iglesias, 535 F.3d 150, 155 (3d 

Cir. 2008)). To prove possession of child pornography 

under 18 U.S.C. § 2252A(a)(5)(B), the evidence must 

show that Pavulak ―knowingly possesse[d], or knowingly 

accesse[d] with an intent to view, any book, magazine, 

periodical, film, videotape, computer disk, or any other 

material that contains an image of child pornography‖ 

with the requisite connection to interstate commerce. 

Pavulak concedes that the images recovered from the 

laptop13 depict child pornography. But he argues that no 

rational jury could have found beyond a reasonable doubt 

that he knowingly possessed those images. See

Appellant‘s Br. at 33–37. 

The jury, though, had ample evidence to infer 

otherwise. The laptop had only a single passwordprotected Windows user account and contained photos of 

 

13 Because the jury‘s verdict can be sustained based on 

the evidence relating to the laptop, we do not address 

whether the evidence relating to the desktop computer 

withstands Pavulak‘s sufficiency challenge. 
40

Pavulak, Pavulak claimed that the laptop was his 

computer, and the police recovered the laptop from the 

part of the CTI office in which he was living. Simply 

put, Pavulak was the laptop‘s likeliest user.

And Pavulak was also the likeliest person to have 

accessed the child-pornography images on the laptop. 

They were not buried away where an innocent user could 

have overlooked them. Twenty-nine of them were found 

in Windows Photo Gallery, which could have occurred 

only if the user had accessed the image and modified it in 

some way. And the laptop‘s user edited the twenty-nine 

images between September and November 2008, usually 

in the evening and on the weekends—when Pavulak had 

access to the laptop and other CTI employees did not. 

Indeed, on two occasions, several of the childpornography images and pictures of Pavulak were edited 

within hours of each other. Compare Gov‘t Exs. 246–50, 

253–54 (depicting images of Pavulak created on 

September 13, 2008 at approximately 3:30 p.m.), with

Gov‘t Exs. 225–225A (depicting an image of child 

pornography created on September 13, 2008 at 

approximately 11:30 p.m.); compare Gov‘t Ex. 251 

(depicting an image of Pavulak created on November 4, 

2008 at approximately 5:20 p.m.), with Gov‘t Exs. 211–

211A, 215–216A, 219–220A, 228–228A, 231–231A 

(depicting images of child pornography created on 

November 4, 2008 at approximately 10:40 p.m.). By 

contrast, no one accessed these twenty-nine images of 
41

child pornography when Pavulak left the laptop in the 

United States during his trip to the Philippines. The 

weight of this evidence prevents us from overturning 

Pavulak‘s conviction for possessing child pornography.

Likewise, we cannot say that ― ̳no reasonable juror 

could accept the evidence as sufficient‘‖ to find Pavulak 

guilty of attempting to produce child pornography. 

Miller, 527 F.3d at 69 (quoting United States v. Lacy, 

446 F.3d 448, 451 (3d Cir. 2006)). The crime of attempt 

requires the specific intent to commit a crime—here, 

producing child pornography in violation of 18 U.S.C. 

§ 2251(a)—and a substantial step towards the 

commission of that crime. Cf. United States v. Nestor, 

574 F.3d 159, 160–61 (3d Cir. 2009) (describing 

attempted enticement of a minor to engage in sexual 

activity in violation of 18 U.S.C. § 2422(b)). Under 

§ 2251(a), a person is guilty of producing child 

pornography if he ―employs, uses, persuades, induces, 

entices, or coerces any minor to engage in‖ or ―has a 

minor assist any other person to engage in . . . any 

sexually explicit conduct for the purpose of producing 

any visual depiction of such conduct or for the purpose of 

transmitting a live visual depiction of such conduct.‖ 

Here, Pavulak repeatedly insisted that Duran 

display Jane Doe‘s vagina via a live webcam feed during 

their January 18, 2009 chat session. See JA530a–31a 

(telling Duran to ―take ur panties off hon and show me ur 

pussy,‖ stating ―no now . . . and [Jane Doe’s] too‖ when 
42

Duran initially declined, and again demanding ―now 

[Jane Doe’s]‖ after Duran gave in to his request to see 

her vagina (emphasis added)). Duran declined to expose

Jane Doe‘s vagina because she was wearing a diaper but 

offered to display Jane Doe naked the next morning. 

Pavulak agreed, typing ―ok.‖ That evidence was enough 

to constitute a substantial step towards ―coercing‖ Jane 

Doe to ―engage in any sexually explicit conduct . . . for 

the purpose of transmitting a live visual depiction of such 

conduct.‖ 18 U.S.C. § 2251(a); see, e.g., United States v. 

Lee, 603 F.3d 904, 918 (11th Cir. 2010) (upholding a 

guilty verdict for attempted production of child 

pornography where the evidence showed that the 

defendant ―repeatedly . . . request[ed] sexually explicit 

photographs and [sent] a photograph of his own‖).

Moreover, there was plenty of evidence that 

Pavulak specifically intended for Duran to display Jane 

Doe‘s vagina ―to excite lustfulness or sexual 

stimulation.‖ See United States v. Knox, 32 F.3d 733, 

745 (3d Cir. 1994) (explaining that ―lascivious exhibition 

of genitals or pubic area‖ is ―one variety of  ̳sexually 

explicit conduct‘ proscribed by the statute‖). During that 

chat, Pavulak described various ways that he intended to 

sexually abuse Jane Doe in the future, including:

 Digitally penetrating her at age five;

 Hoping that she likes performing oral sex on 

him;
43

 Wanting to see her use a vibrator;

 Ejaculating in her mouth during his next trip 

to the Philippines; and

 Wanting Duran to continue instructing Jane 

Doe on how to perform oral sex.

Pavulak‘s text messages and the ―training video‖ confirm 

his desires. His own text messages to Duran indicate that 

Pavulak wanted to perform oral sex on Jane Doe, to see 

both Duran and Jane Doe ―naked on the cam using the

v[i]brator,‖ to have Jane Doe perform oral sex on him, 

and to have Duran ―make it all work out for the three of 

[them] to be [sic] happy sex life.‖ And Pavulak created a 

―training video‖ for Jane Doe to learn how to perform 

oral sex.

Urging us to characterize his chat with Duran as 

facetious ―banter,‖ Pavulak claims that he lacked the 

specific intent ―to act on any of the illicit portions of his 

fantasies.‖ Appellant‘s Br. at 30. Yet ― ̳it is not for us to 

weigh the evidence.‘‖ United States v. Smith, 294 F.3d 

473, 478 (3d Cir. 2002) (quoting United States v. Dent, 

149 F.3d 180, 187 (3d Cir. 1998)). And even if that were 

one plausible interpretation of the evidence, his 

― ̳contention that the evidence also permits a less sinister 

conclusion‘‖ than guilt is not enough to overturn the 

verdict. Id. (quoting Dent, 149 F.3d at 188). Pavulak 

fails to take the next step and explain why the 
44

government‘s ample evidence does not support the jury‘s 

verdict. The jury therefore had sufficient evidence to 

find that Pavulak specifically intended to produce child 

pornography by directing Duran to expose Jane Doe on 

the webcam. As a result, Pavulak‘s sufficiency 

challenges fail.

VI.

The District Court did not err by denying 

Pavulak‘s motion for a new trial. According to Pavulak,

Mack testified at trial that he saw Pavulak viewing adult 

pornography, contradicting the search-warrant affidavit‘s 

indication that he saw Pavulak viewing child 

pornography. This inconsistency, Pavulak contends, 

entitled him to a post-trial Franks hearing so he could 

show that the affidavit‘s information was false. In turn,

that falsity would justify suppression of the chat logs, 

photographs, and other evidence recovered from the CTI 

office and his Yahoo! account and ultimately entitle him 

to a new trial under Federal Rule of Criminal Procedure 

33. 

We normally review the denial of a Rule 33 

motion for a new trial for abuse of discretion. See United 

States v. Brown, 595 F.3d 498, 511 (3d Cir. 2010) (citing 

United States v. Saada, 212 F.3d 210, 215 (3d Cir. 2000). 

Because Pavulak predicates his motion for a new trial on 

his entitlement to a Franks hearing, we will directly 

evaluate the denial of his request for a post-trial Franks
45

hearing. Accord United States v. Rivera, 410 F.3d 998, 

1000–01 (8th Cir. 2005) (taking this approach). He was 

entitled to such a hearing only if he (1) made a 

―substantial preliminary showing‖ that the affiant 

knowingly or recklessly included a false statement in or 

omitted facts from the affidavit, and (2) showed that the 

false statements or omitted facts were ―necessary to the 

finding of probable cause.‖ Yusuf, 461 F.3d at 383–84. 

Like his request for a pre-trial Franks hearing, we need 

not establish a standard of review because Pavulak was 

not entitled to a post-trial Franks hearing under any 

standard.

Mack‘s trial testimony was perfectly consistent 

with the information he provided for the search-warrant 

affidavit. At trial, Mack testified that pictures of women

Pavulak met in the Philippines—not the suspected

images of child pornography—―looked of age.‖ Indeed, 

at trial, Mack confirmed that the pornographic images to 

which he tipped off the police involved ―really young‖ 

girls in their ―early teens.‖ With no inconsistency 

between Mack‘s trial testimony and earlier tip, Pavulak 

cannot make the ―substantial preliminary showing‖ that 

the information provided in the affidavit was false. And 

without identifying false information, Pavulak was not 

entitled to a post-trial Franks hearing and, consequently, 

to a new trial.
46

VII.

In addition to challenging his convictions, Pavulak 

claims that the Constitution required the jury, not the 

District Court, to determine the facts that triggered his 

mandatory life sentence under 18 U.S.C. § 3559(e)(1) on 

the attempted-production conviction. We exercise de 

novo review over these questions of constitutional and 

statutory interpretation. United States v. Barbosa, 271 

F.3d 438, 452 (3d Cir. 2001) (citing United States v. 

Williams, 235 F.3d 858, 861 (3d Cir. 2000)).

First, some background: Section 3559(e)(1) 

imposes a mandatory life sentence on a defendant 

―convicted of a Federal sex offense in which a minor is 

the victim‖ if he has a ―prior sex conviction in which a 

minor was the victim.‖ The trigger for this section—a 

―prior sex conviction in which a child was the victim‖—

includes specified ―Federal sex offense[s]‖ as well as 

―State sex offense[s]‖ that would be ―punishable by more 

than one year in prison‖ and involve ―conduct that would 

be a Federal sex offense‖ if there were federal 

jurisdiction. 18 U.S.C. § 3559(e)(2)(A)–(B). 

Thus, determining whether § 3559(e)(1)‘s 

mandatory life sentence applies to Pavulak turns on 

whether his prior Delaware convictions for unlawful 

sexual contact in the second degree under 11 Del. Code

§ 768 also constitute a federal sex offense—here, 

aggravated sexual abuse of a child under 18 U.S.C. 
47

§ 2241(c). To make that determination, we must start 

with the formal categorical approach. That inquiry 

requires a district judge to evaluate whether the 

―elements of the statutory state offense,‖ not ―the specific 

facts‖ underlying the defendant‘s prior conviction, would 

automatically constitute a federal sex offense. JeanLouis v. Att’y Gen. of U.S., 582 F.3d 462, 465 (3d Cir. 

2009). Here, the Delaware crime of unlawful sexual 

contact in the second degree is not necessarily congruous 

with the federal crime of aggravated sexual abuse of 

children under 18 U.S.C. § 2241(c). There are at least 

two differences:

1. Section 2241(c) requires the victim to be less 

than twelve years old, whereas 11 Del. Code 

§ 768 requires the victim to be less than

eighteen years old.

2. Section 2241(c) contains an additional 

element—a specific-intent requirement that the 

defendant‘s ―intentional touching‖ occur ―with 

an intent to abuse, humiliate, harass, degrade, 

or arouse or gratify the sexual desire of any 

person‖—that 11 Del. Code. § 768 does not 

require. Compare 18 U.S.C. § 2246(2)(D) 

(defining ―sexual act‖ to include this specificintent requirement), with 11 Del. Code § 761(f) 

(defining ―sexual act‖ without any specificintent requirement).
48

Given these differences, the Delaware law under 

which Pavulak was previously convicted does not 

necessarily ―involve conduct that would be a Federal sex 

offense‖ under the formal categorical approach. See, 

e.g., Singh v. Ashcroft, 383 F.3d 144, 153 (3d Cir. 2004) 

(reaching the same conclusion in comparing the 

Delaware crime of unlawful sexual contact in the third 

degree with the federal crime of sexual abuse of a minor 

because the federal crime required a victim under twelve 

years old while the Delaware crime did not contain an 

age cut-off). Consequently, we cannot conclude, as a 

matter of law, that Pavulak‘s prior state convictions 

necessarily constitute a federal sex offense.

Our inquiry does not end there: the trier of fact 

might find sufficient facts underlying Pavulak‘s prior 

Delaware convictions to satisfy the two additional 

requirements of the federal crime of aggravated abuse of 

children. Who—the judge or the jury—is allowed to 

engage in that fact-finding? Under the familiar Apprendi

rule, the Fifth Amendment‘s Due Process Clause and 

Sixth Amendment‘s Jury Trial Guarantee require ―any 

fact, other than the fact of a prior conviction, that 

increases the penalty for a crime beyond the prescribed 

statutory maximum [to] be submitted to a jury and 

proved beyond a reasonable doubt.‖ United States v. 

Chorin, 322 F.3d 274, 278 (3d Cir. 2003) (citing 

Apprendi, 530 U.S. at 490). 

If Apprendi applies, the district judge is usually 
49

limited to the formal categorical approach, and any 

remaining elements of the federal sentencing 

enhancement must be found by a jury beyond a 

reasonable doubt. In some cases (like this one) where the 

federal sentencing enhancement ―invites inquiry into the 

underlying facts of the case,‖ Borrome v. Att’y Gen. of 

U.S., 687 F.3d 150, 155 (3d Cir. 2012), we have modified 

the categorical approach, permitting the district judge to 

―evaluate whether the factual elements of the analogous 

federal crime were necessarily proven at the time of the 

defendant‘s conviction on the state charges.‖ United 

States v. Rood, 679 F.3d 95, 98 (2d Cir. 2012) (applying 

the modified categorical approach to 18 U.S.C. 

§ 3559(e)); see 18 U.S.C. § 3559(e) (focusing on whether 

the state sex offense involves ―conduct that would be a 

Federal sex offense‖ and thereby inviting an inquiry into 

the facts underlying the defendant‘s conviction (emphasis 

added)). Under this modified categorical approach, the 

judge may consider only those facts that were

―necessarily admitted‖ by the defendant in his prior 

criminal proceeding—that is, facts found in the ―charging 

document, written plea agreement, transcript of plea 

colloquy, and any explicit factual finding by the trial 

judge to which the defendant assented.‖ Shepard v. 

United States, 544 U.S. 13, 16 (2005). On the other 

hand, if Apprendi does not apply, then the district judge 

is free to make any factual findings related to sentencing, 

just as he is when finding facts that trigger enhancements 

under the Sentencing Guidelines that would not increase 
50

the defendant‘s maximum statutory sentence. See, e.g., 

United States v. Grier, 475 F.3d 556, 562 (3d Cir. 2006) 

(en banc) (holding that Apprendi does not limit a district 

court‘s ability to engage in judicial fact-finding within 

the permissible sentencing range so long as that factfinding would not trigger an increase in the defendant‘s 

maximum statutory sentence). 

Here, Apprendi‘s restriction on judicial factfinding does not apply because the mandatory life 

sentence in § 3559(e) does not exceed Pavulak‘s 

maximum statutory sentence for attempted production of 

child pornography, which is life imprisonment. For 

attempted production of child pornography, 18 U.S.C. 

§ 2251(e) establishes three sets of sentencing ranges 

depending on the defendant‘s criminal history. A

defendant with no qualifying prior convictions faces 

fifteen to thirty years‘ imprisonment. 18 U.S.C. 

§ 2251(e). A defendant faces twenty-five to fifty years‘ 

imprisonment if he has one prior conviction under certain 

federal laws or ―under the laws of any State relating to 

aggravated sexual abuse, sexual abuse, abusive sexual 

contact involving a minor or ward, or sex trafficking of 

children, or the production, possession, receipt, mailing, 

sale, distribution, shipment, or transportation of child 

pornography.‖ Id. Lastly, a defendant faces 

imprisonment between thirty-five years and life if he has 

two or more prior convictions under certain federal laws 

―or under the laws of any State relating to the sexual 
51

exploitation of children.‖ Id.

Although Pavulak concedes that his two prior 

Delaware convictions subjected him to a sentencing 

range of twenty-five to fifty years, he contends that they 

did not ―relat[e] to the sexual exploitation of children‖ 

and therefore did not subject him to life imprisonment. 

And because § 3559(e)‘s mandatory life imprisonment 

would exceed his statutory maximum of fifty years under 

§ 2251(e), Pavulak concludes that Apprendi required the 

jury (not the District Court) to determine whether his 

Delaware convictions triggered the mandatory life 

sentence in § 3559(e).

Pavulak‘s premise is faulty. His two prior 

Delaware convictions did ―relat[e] to the sexual 

exploitation of children,‖ subjecting him to a statutory 

maximum of life imprisonment under § 2251(e). That 

conclusion is mandated by our decision in United States 

v. Randolph, 364 F.3d 118, 119 (3d Cir. 2004). There, 

the defendant had three prior Georgia convictions for 

child molestation—defined as performing ―any immoral 

or indecent act to or in the presence of or with any child 

under the age of 14 years with the intent to arouse or 

satisfy the sexual desires of either the child or the 

person.‖ Id. at 122 (quoting Ga. Code Ann. § 26-2019 

(1978)). After being convicted of attempted production 

of child pornography under a previous version of § 2251, 

the defendant faced an increased statutory maximum if 

his prior Georgia convictions involved the ―sexual 
52

exploitation of children‖—the same framework as the 

current version of § 2251. See id. at 119. He argued that 

this enhancement applied only if the conduct underlying 

his prior convictions ―involv[ed] the production of visual 

depictions of minors engaged in sexually explicit 

conduct.‖ Id. at 122. We rejected that case-by-case 

analysis and depiction-limited definition. Instead, we 

adopted a categorical approach focused on whether the 

statutory definition of the prior crime, rather than the 

particular defendant‘s conduct, related to the ―sexual 

exploitation of children.‖ Id. And Georgia‘s law against 

child molestation, we concluded, related to the ―sexual 

exploitation of children.‖ Id.

Likewise, Pavulak‘s two prior Delaware 

convictions for unlawful sexual contact in the second 

degree involved the ―sexual exploitation of children.‖ 

Under Delaware law, ―[a] person is guilty of unlawful 

sexual contact in the second degree when the person 

intentionally has sexual contact with another person who 

is less than 16 years of age or causes the victim to have 

sexual contact with the person or a third person.‖ 11 Del. 

Code § 768. ―Sexual contact‖ is one type of ―sexual 

exploitation.‖ See Randolph, 364 F.3d at 122 (holding 

that ―child molestation‖ is related to sexual exploitation); 

United States v. Galo, 239 F.3d 572, 583 (3d Cir. 2001)

(holding that ―sexual exploitation‖ in § 2251(e) includes 

―involuntary deviate sexual intercourse‖ and ―statutory 

rape‖); see id. (holding that the definition of the prior 
53

conviction need not ―contain the term  ̳sexual 

exploitation of children‘‖ to qualify). And because 

section 768 requires a victim who is ―less than 16 years 

of age,‖ the statute is limited to ―the sexual exploitation 

of children‖ as required by § 2251(e) (emphasis added).

Pavulak urges us to adopt the same case-by-case 

approach that we rejected in Randolph—a proposal we 

are powerless to consider. See Mariana v. Fisher, 338 

F.3d 189, 201 (3d Cir. 2003) (―[T]he holding of a panel 

in a precedential opinion is binding on subsequent 

panels.‖ (quoting Third Circuit I.O.P. 9.1)). 

And contrary to Pavulak‘s insistence otherwise, 

Congress‘s amendments to § 2251(e) since Randolph do 

not change anything. At the time of Randolph, 

§ 2251(e)‘s enhanced sentencing ranges were both 

triggered by prior state convictions ―relating to the sexual 

exploitation of children‖: twenty-five to fifty years for 

one such conviction and thirty-five years to life for two 

such convictions. See Randolph, 364 F.3d at 119. In 

2006, Congress amended the description of qualifying 

state offenses that would trigger the twenty-five-to-fiftyyear category: it replaced ―the sexual exploitation of 

children‖ with ―aggravated sexual abuse, sexual abuse, 

abusive sexual contact involving a minor or ward, or sex 

trafficking of children, or the production, possession, 

receipt, mailing, sale, distribution, shipment, or 

transportation of child pornography.‖ Adam Walsh 

Child Protection and Safety Act of 2006, Pub. L. No. 
54

109-248, § 206(b)(1)(B), 120 Stat. 587, 614 (2006). But 

Congress did not make any changes to the thirty-five-tolife category under which Pavulak was sentenced—

meaning that state laws ―related to the sexual exploitation 

of children‖ remained a trigger for that sentencing range. 

See id. 

Pavulak believes that the amendment limits the 

meaning of ―sexual exploitation of children‖ to crimes 

involving visual depictions. He is wrong. That 

interpretation would ascribe the same meaning to the 

term ―sexual exploitation of children‖ in the thirty-fiveto-life category and the phrase ―the production, 

possession, receipt, mailing, sale, distribution, shipment, 

or transportation of child pornography‖ in the twentyfive-to-fifty category. Ordinarily, ―we assume that 

Congress used two different [phrases] because it intended 

each [phrase] to have a particular, nonsuperfluous 

meaning.‖ United States v. Tupone, 442 F.3d 145, 158 

(3d Cir. 2006) (quoting Bailey v. United States, 516 U.S. 

137, 146 (1995)). If Congress had wanted to implement 

Pavulak‘s interpretation, it could have explicitly done so 

by replacing ―the sexual exploitation of children‖ in the 

thirty-five-to-fifty category with ―the production, 

possession, receipt, mailing, sale, distribution, shipment, 

or transportation of child pornography.‖ It is hard to 

fathom why Congress, seeking to increase the penalties 

for sexual offenses against children, would have 

amended the twenty-five-to-fifty category to ensure that 
55

crimes beyond those involving visual depictions were 

included while silently limiting the qualifying crimes to 

visual depictions for the thirty-five-to-life category. And 

given that Congress kept ―so many prior federal

offenses‖ that trigger the thirty-five-to-life category, it is 

―implausible‖ that Congress simultaneously ―chose to 

restrict qualifying state offenses to child pornography 

production.‖ United States v. Sanchez, 440 F. App‘x 436, 

440 (6th Cir. Aug. 23, 2011) (emphasis added).

Since Pavulak‘s mandatory life sentence under 

§ 3559(e) did not exceed his maximum statutory sentence

of life under § 2251(e), Apprendi is inapplicable. United 

States v. DeSumma, 272 F.3d 176, 181 (3d Cir. 2001) 

(―[W]hen the actual sentence imposed does not exceed 

the statutory maximum, Apprendi is not implicated.‖). It 

was therefore constitutional for the District Court to 

determine that Pavulak‘s prior Delaware convictions 

involved ―conduct that would be a Federal sex offense‖ 

and thus triggered the mandatory life sentence in 

§ 3559(e).

* * * * *

Accordingly, we will affirm Pavulak‘s convictions 

and sentence.