Appellate Case: 22-2154 Document: 010111052156 Date Filed: 05/20/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 20, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-2154 (D.C. No. 1:19-CR-03609-JB-1) BOBBY PENA, (D. N.M.)
Defendant - Appellant.
UNITED STATES OF AMERICA,
v. No. 22-2155 (D.C. No. 1:19-CR-03611-JB-1) BOBBY PENA, (D. N.M.)
_________________________________
ORDER AND JUDGMENT * _________________________________
Before EID, SEYMOUR, and KELLY, Circuit Judges. _________________________________
Defendant-Appellant Bobby Pena pleaded guilty to one count of possession of
child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2). He reserved his
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 22-2154 Document: 010111052156 Date Filed: 05/20/2024 Page: 2
right to appeal the district court’s denial of his motion to suppress suspected or confirmed
child pornography that was recovered on his devices pursuant to a search warrant. Pena
now appeals the denial of the motion to suppress on the basis that the affidavit upon
which the search warrant was based did not present probable cause. He also argues that
the federal agents did not act in good faith in executing the search warrant, and that in the
absence of probable cause and good faith, evidence of child pornography would not have
been inevitably discovered on his electronic devices. Finally, in the event that we agree
that the child pornography recovered pursuant to the search warrant should have been
suppressed, Pena argues that his related conviction for procurement fraud should be
remanded for resentencing. Exercising our jurisdiction pursuant to 28 U.S.C. § 1291, we
affirm that the district court did not err in finding that the affidavit established probable
cause and provided a sufficient basis for the search warrant, and we decline to reach the
subsequent issues raised on appeal. Because we affirm the district court’s decision in
Pena’s child pornography case, we decline to remand Pena’s fraud procurement case for
resentencing.
I.
In June 2016, the Department of Energy’s Office of the Inspector General (“OIG”)
began to investigate Bobby Pena for allegedly submitting fraudulent claims to his
employer, Sandia National Laboratories. 1 The OIG obtained a valid federal warrant to
These facts are recounted in the light most favorable to the government. See 1
United States v. Haymond, 672 F.3d 948, 958 (10th Cir. 2012).
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seize and to search Pena’s electronic devices for evidence of fraudulent claims (the “first
warrant”). In December 2017, law enforcement officers executed such warrant on Pena’s
laptop, seven external hard drives, and two thumb drives.
Prior to searching Pena’s devices, officers asked Pena what they would find. Pena
told officers that the devices contained family photos and “porn.” App’x Vol. II at 289.
Officers followed up by asking Pena whether the devices contained any child
pornography. Pena replied “no,” but caveated his denial, saying that he “rips”
pornography from “torrent” files to keep on his devices. Id. Officers interpreted
“torrent” to refer to internet peer-to-peer file-sharing software.
While executing the first warrant, Agent Matthew A. Kucenski, a Special Agent
with the OIG, made digital forensic copies of Pena’s devices to facilitate his search. In
the course of copying Pena’s devices, Agent Kucenski monitored the copying software to
ensure it copied files and folders correctly, and to screen for encrypted files. He also
conducted a high-level review of the device to determine which devices might have
information most relevant to his warrant. During this process, Agent Kucenski observed
large quantities of files and folders with explicit and sexually suggestive names. names
included “HotYoungDoll,” “HotYoungThing,” “hotyoungthing-nude_xvid.avi,” “Casting
Couch Teens Site Rip,” “Teens Do Porn SiteRip,” “teensx,” “DblTemedTens,” “Teens
Obedience Lesson Site Rip,” and “Teen Sex Mania SiteRip.” App’x Vol. II at 289–90.
Agent Kucenski documented what he observed, including these file and directory names,
but he did not open or view any of the suspicious files or folders.
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Agent Kucenski applied for a second search warrant for Pena’s devices; this time,
for child pornography or evidence of material involving the sexual exploitation of
minors. The warrant application detailed the facts above. In the warrant application,
Agent Kucenski also provided the magistrate judge with background information relevant
to the warrant sought, including his extensive experience with child exploitation
investigations. Based on such experience, Agent Kucenski explained in detail why he
believed that Pena was likely a collector or distributor of child pornography. Agent
Kucenski described how peer-to-peer networks work, and how they are used routinely to
upload and to download child pornography. Agent Kucenski also explained why Pena’s
possession of numerous large-capacity digital storage devices was consistent with the
behavior of a child pornography collector.
Based on Agent Kucenski’s warrant application, United States Magistrate Judge
Jerry H. Ritter issued a warrant to search Pena’s electronic devices for evidence of child
pornography and child exploitation (the “second warrant”).
Agent Kucenski executed the second warrant on Pena’s electronic devices. Agent
Kucenski spent about seventy-five percent of his working hours for one year reviewing
data on Pena’s devices. But the material was so voluminous that, in one year, Agent
Kucenski was able to review only three percent of the data on Pena’s devices. And in
that three percent, Agent Kucenski located about four thousand videos and images that
were confirmed or suspected to be child pornography, spread across five or six of Pena’s
devices.
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A grand jury indicted Pena in October 2019 on one count of Possession of Visual
Depictions of Minors Engaged in Sexually Explicit Conduct in violation of 18 U.S.C.
§§ 2252A(a)(5)(B), (b)(2), and 2256. Pena was also indicted on twenty-eight counts of
False Claims Against the Government. Those cases proceed on appeal as case numbers
21-2155 and 21-2154, respectively.
Pena filed an unsuccessful motion to suppress evidence of child pornography
uncovered pursuant to the second warrant. In that motion, as here, Pena argued that there
was no probable cause upon which to issue the second warrant. Pena also argued that the
search was not conducted in good faith reliance on an invalid warrant, and that Pena’s
collection of child pornography would not inevitably have been discovered. The district
court conducted an evidentiary hearing, and thereafter denied Pena’s motion.
In its order denying Pena’s motion, the district court concluded that the magistrate
judge had a substantial factual basis to find probable cause. district court found that the
file and folder names observed by Agent Kucenski indicated the presence of child
pornography. The district court reasoned that “[t]he word ‘teen’ indicates a person aged
between thirteen and nineteen,” and that because “[t]here are more minor teens than adult
teens,” the court found it “likely that the word ‘teen’ indicates pornography involving a
minor child aged thirteen through seventeen.” App’x Vol. III at 581–82. The district
court also found that the file name “DblTemedTens” indicated “pornography involving
ten-year-old children” and that it “strongly indicate[d] the presence of child
pornography.” Id. (citing United States v. Loera, 923 F.3d 907, 929 (10th Cir. 2019)
(noting that a file labeled “Spycam 9yr Undress” suggested the presence of child
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pornography); United States v. Haymond, 672 F.3d 948, 950 (10th Cir. 2012) (noting that
“‘8yo’” is an acronym for “‘8 year old’ which is associated with child pornography”).
The district court also concluded that, given the totality of the circumstances,
Pena’s suspicious statements to officers supported a finding of probable cause. The court
found that Pena made suspicious statements about what officers would find on his
devices. Namely, the district court found that Pena’s response about “torrent” files
“suggests to the hearer that he knew that his computer contained child pornography and
was moving towards an explanation.” App’x Vol. III at 583. The district court reasoned
that Pena’s “mind jumped to a defense, mentally and subconsciously conceding – despite
his verbal denial – that the computer contained child pornography.” Id. The court also
found that Pena’s immediate concession that his devices contained “porn” indicated “that
he was concerned at the outset for what the officers might find.” Id.
Finally, the district court concluded that Pena’s practices with his digital devices
and Agent Kucenski’s declarations regarding the practices of child pornography
collectors supported a finding of probable cause. The district court noted Pena’s admitted
use of peer-to-peer software, possession of torrent files, and high volume of digital
storage devices. The court concluded that those facts, when examined in light of Agent
Kucenski’s affidavit and the other facts, supported a finding of probable cause.
The district court also considered, in the alternative, whether the good-faith
exception or the inevitable discovery rule would permit the evidence of child
pornography to be admitted. The district court concluded that, even if the warrant was
erroneously issued, Agent Kucenski “acted in good faith by relying on the Second Search
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Warrant” because the second warrant was not “so obviously unreasonable that [Agent]
Kucenski should have recognized the error.” App’x Vol. III at 587–88. The district court
also found that Agent Kucenski inevitably “would have found more incriminating file
folder names” in the course of his fraud investigation, which “would have supported
probable cause for a search warrant.” Id. at 592. Thus, the district court concluded, “the
child pornography on Pena’s devices would have been discovered inevitably” due to the
fraud investigation. Id.
Pena pleaded guilty in both the fraud case and the child pornography case,
reserving his right to appeal the denial of his motion to suppress evidence of child
pornography. The district court sentenced Pena to 41 months in prison for both cases, to
be served concurrently, plus supervised release.
Pena appeals the denial of his motion to suppress and, in the event he prevails, his
fraud sentence.
II.
We will first address Pena’s probable cause argument, as this Court maintains the
discretion to address either probable cause or good faith first when reviewing the denial
of a motion to suppress. United States v. Gonzales, 399 F.3d 1225, 1228 (10th Cir.
2005). “In reviewing the denial of a motion to suppress, this court views the evidence in
the light most favorable to the government and upholds the district court's factual
findings unless clearly erroneous.” United States v. Danhauer, 229 F.3d 1002, 1005
(10th Cir. 2000). However, “[d]eterminations relating to the sufficiency of a search
warrant and the applicability of the good-faith exception are conclusions of law” and are
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reviewed de novo. Id. In reviewing whether a warrant was sufficient, this Court accords
“great deference to the issuing judge's finding of probable cause,” asking “only whether,
under the totality of the circumstances presented in the affidavit,” the issuing judge “had
a substantial basis for determining that probable cause existed.” Haymond, 672 F.3d at
958–59.
The Fourth Amendment declares that “no Warrants shall issue, but on probable
cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” U.S. Const. amend. IV. Therefore, a
search warrant may issue only if “given all the circumstances set forth in the
affidavit . . . there is a fair probability that contraband or evidence of a crime will be
found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). The affidavit
need not contain anything resembling conclusive proof that such evidence will be
found—only “facts sufficient to lead a prudent person to believe that a search would
uncover contraband or evidence of criminal activity.” Danhauer, 229 F.3d at 1006.
“[C]ourts should not invalidate warrants by interpreting affidavits in a hypertechnical,
rather than a commonsense, manner.” Gates, 462 U.S. at 236. Rather, we “interpret
search warrant affidavits in a common sense and realistic fashion.” United States v.
Grimmett, 439 F.3d 1263, 1270 (10th Cir. 2006).
Pena argues that the affidavit supporting the search warrant failed to establish a
basis for probable cause on three fronts: (1) the names of the files and folders observed
by Agent Kucenski are “too ambiguous to infer illegal activity” (Aplt Br. at 25); (2)
Pena’s statements during the execution of the first warrant did not create “suspicion” that
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he was hiding illegal conduct (Id. at 31); (3) under controlling precedent, Pena’s use of
peer-to-peer software and numerous digital storage devices, which indicated collector
behavior, cannot be used to infer that he was collecting child pornography, rather than
legal pornography.
a.
As an initial matter, Pena makes much of Agent Kucenski’s use of the term
“pornography” rather than “child pornography” in his affidavit. See Aplt. Br. at 22–23
(“Special Agent Kucenski’s opinion that Mr. Pena likely collected pornography, rather
than child pornography, militates against probable cause.”). Pena asks us to base our
probable cause review on what Agent Kucenski may have believed or concluded when he
wrote the affidavit, arguing that the district court erred when it “disregard[ed] Special
Agent Kucenski’s opinions and inferr[ed] illegal conduct instead.” Id. at 18. This line of
reasoning is unavailing because it misapprehends the task at hand. We are not
interrogating what Agent Kucenski believed; we are looking to the issuing magistrate
judge and asking solely whether the “facts presented in the affidavit would warrant a
[person] of reasonable caution to believe that evidence of a crime will be found at the
place to be searched.” United States v. Harris, 369 F.3d 1157, 1165 (10th Cir. 2004).
Thus, whether Agent Kucenski used the term “pornography” rather than “child
pornography” in the affidavit is irrelevant if the underlying facts alleged indicate the
presence of child pornography on Pena’s devices.
Pena argues that the names of his files and folders are insufficient to support
probable cause because they are “too ambiguous.” Aplt. Br. at 25. We disagree. As
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discussed above, the district court analyzed the names of Pena’s files and folders and
made factual findings that the names indicated the presence of child pornography. The
district court found that “[w]hile it is possible that the word ‘teen’ implies pornography
involving legal adults, it is more likely that the word ‘teen’ indicates pornography
involving a minor child aged thirteen through seventeen.” App’x Vol. III at 582.
Furthermore, the district court found that one explicit file name in particular,
“DblTemedTens,” indicated “pornography involving ten-year-old children,” and that “if
so, this file name strongly indicates the presence of child pornography.” Id.
Pena does not contest—does not even mention—the district court’s finding that
“DblTemedTens” likely indicated the presence of child pornography. Pena therefore has
waived on appeal any argument that the district court clearly erred in that conclusion.
Furthermore, the district court’s other factual findings were not clearly erroneous. See
Burke v. Regalado, 935 F.3d 960, 1014 (10th Cir. 2019) (“[A]n appellant may waive
an issue by inadequately briefing it.”). Pena argues that “[t]he district court d[id] not cite
any legal authority” for the proposition that “[t]here are more minor teens than adult
teens.” Aplt. Br. at 26. But judges may, and indeed must, rely on “common sense” in
determining whether there is probable cause. Gates, 462 U.S. at 241. It requires only
common sense to observe, as the district court did, that “teens” are usually minors.
Though, as the district court observed, it is “possible that the word ‘teen’ implies
pornography involving legal adults,” a mere possibility does not negate probable cause.
App’x Vol. III at 582. Further, the numerous explicit file names in the affidavit give the
overwhelming indication of the presence of child pornography when taken as a whole.
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Pena argues that “the terms ‘teen’ and ‘young’ are far too ambiguous and not sufficiently
descriptive to drawn an inference that child pornography would be found.” Aplt. Br. at
11. But Agent Kucenski did not merely observe folders labeled “teen” and “young,”
without further description. The labels also included the term “doll,” which Pena does
not attempt to argue is innocuous. App’x Vol. II at 289–90. Further, the labels employed
explicit and suggestive language in conjunction with the terms “teen,” “young,” and
“doll.” Id. And some of the terms, like “obedience lesson,” are suggestive of
compromising and coercive positions, not consensual relations between adults. See id.
The district court had ample basis to conclude that the file names indicated the presence
of child pornography—at the very least, the district court did not clearly err.
b.
Pena next argues that the district court erred when it classified Pena’s answers to
investigators regarding the content of his devices as “suspicious.” Aplt. Br. at 32. We
again disagree. The district court found that Pena was likely equivocating and hedging
preemptively to explain the child pornography that officers would find on his devices.
This finding was not clearly erroneous. It was reasonable for the district court to
conclude, as it did, that it was suspicious for Pena to caveat his statement that he did not
have child pornography with a statement about his use of torrents and peer-to-peer file
sharing. Indeed, the most reasonable conclusion is not that Pena was making an
unrelated, unprompted statement about how he acquired his legal pornography, but
instead that he was providing a partial explanation in response to the question of whether
he possessed child pornography. Therefore, the district court did not err in according
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Pena’s statements some weight in determining that there was a sufficient basis for
probable cause.
c.
Pena’s use of peer-to-peer software and numerous digital storage devices also
support a finding of probable cause. Pena argues that this case is controlled by United
States v. Edwards, 813 F.3d 953 (10th Cir. 2015). In Edwards, this Court held that a
defendant’s practice of reading erotic writings involving children was an insufficient
basis for probable cause that the defendant collected child pornography. Id. at 967. As
Edwards explained, just “because members of group A (those who collect child
pornography) are likely to be members of group B,” it does not mean “group B is largely
or entirely composed of members of group A.” Id. at 968 (internal quotation marks
omitted). Pena argues that the second warrant was issued on the same erroneous logical
inference. Namely, Pena argues that “Group B” in this instance is “people who use
[peer-to-peer] file sharing software and electronic storage devices to collect
pornography,” and that such people “do not necessarily collect child pornography.” Aplt.
Br. at 10.
Pena is correct that under Edwards we may not assume that all persons who
engage in “collector behavior” by hoarding large quantities of pornography or by sharing
data via peer-to-peer file sharing software are engaged in the possession, production, or
distribution of child pornography. But neither the affidavit nor the district court drew
such inference. Instead, the affidavit laid out the reasons why Pena’s behavior was
consistent with the behavior of “some persons who distribute, possess or produce child
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pornography.” App’x Vol. II at 286. And the district court analyzed that information
along with “the entire context,” including “the file names in conjunction with Pena’s
peer-to-peer software use, his statements to officers, and the large number of devices he
possessed.” App’x Vol. III at 584.
What is more, as this Court explained in Edwards, “innocent or legal conduct may
be infused with the degree of suspicion necessary to support a finding of probable cause
when examined through the lens of those versed in the field of law enforcement.” 813
F.3d at 965. This is especially true when considering the circumstances surrounding the
conduct. What sets Pena apart is the presence of suspicious and possibly incriminating
file and folder names on his devices, along with his suspicious statements to law
enforcement. See United States v. Martinez-Cigarroa, 44 F.3d 908, 911 (10th Cir. 1995)
(“In other words, each fact must either be rationally suspicious in itself, or, despite being
innocent on its face, must be rationally suspicious when viewed in the context with the
other articulable facts.”). Viewed through the lens of the circumstances and Agent
Kucenski’s training and experience, some otherwise innocent activities took on the
valence of criminal collection of child pornography. The district court did not err when it
refused to analyze Pena’s collector behavior in a vacuum, nor when it concluded that the
legal conduct of collector behavior, in a totality-of-the-circumstances analysis, “indicates
a fair probability that [Pena] has engaged in illegal activity.” App’x Vol. III at 580.
d.
We finally turn to the question of sufficiency of the search warrant. After
reviewing Agent Kucenski’s affidavit, determining that the district court did not clearly
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err in its factual findings, and considering the deference due to the issuing magistrate
judge, we agree that the issuing judge had a substantial basis for determining that
probable cause existed. The suspicious file names, Pena’s hedging when questioned by
officers, and his use of peer-to-peer software and numerous digital storage devices, when
taken together, would have led a reasonable person to believe that evidence of child
pornography would be recovered from Pena’s devices.
Because we affirm the district court’s finding of probable cause, we decline to
address Pena’s subsequent arguments on good faith and inevitable discovery.
Finally, Pena requested that we remand his procurement fraud conviction—Case
No. 22-2154—for resentencing in the event that his appeal of his child pornography
conviction was successful, as the child pornography conviction and false claims
convictions were “part of a single sentencing package.” Aplt. Br. at 40–41. Because we
decline to reverse the district court’s denial of Pena’s motion to suppress, we also decline
to remand Pena’s false claims conviction for resentencing.
III.
For the foregoing reasons, we AFFIRM the judgment of the district court.
Entered for the Court
Allison H. Eid Circuit Judge