USA v. Richard Brillhart

FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-13226
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD EDWARD BRILLHART,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:22-cr-00053-SPC-NPM-1
____________________
____________________
No. 24-13232
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 1 of 37

-- 1 of 37 --

2 Opinion of the Court 24-13226
RICHARD EDWARD BRILLHART,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:03-cr-00121-JES-KCD-1
____________________
Before N EWSOM , L UCK , Circuit Judges, and L EIBOWITZ,* District
Judge.
NEWSOM , Circuit Judge:
Richard Brillhart was convicted of possessing and distrib-
uting child pornography and sentenced to 480 months’ imprison-
ment. On appeal, he raises a host of challenges arising out of the
investigation and prosecution of his crimes.
Most prominently, Brillhart argues that law-enforcement
agents violated his Fourth Amendment rights when they searched
a file that Google had found in his Gmail account and turned over
to the National Center for Missing and Exploited Children. The
key question before us is whether Google’s initial determination
that the file contained child pornography—which it reached by em-
ploying an automated “hash-value matching” protocol—was the
sort of “private search” that may, in appropriate circumstances, au-
thorize a later government search. For reasons we’ll explain, we
* Honorable David S. Leibowitz, United States District Judge for the Southern
District of Florida, sitting by designation.
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 2 of 37

-- 2 of 37 --

24-13226 Opinion of the Court 3
hold that it was and, therefore, that the government’s subsequent
search of the file, which revealed no new material information,
didn’t violate the Fourth Amendment.
Brillhart separately challenges the government’s decision to
charge him with both distribution and possession of child pornog-
raphy, as well as the district court’s admission (or exclusion) of var-
ious pieces of evidence, its denial of his motion for judgment of
acquittal, and several of its sentencing decisions. On these issues,
we affirm the district court in all respects save one: its application
of a five-level “pattern of activity” sentencing enhancement under
U.S.S.G. § 2G2.2(b)(5). Because we vacate and remand for resen-
tencing to correct that error, we needn’t address Brillhart’s chal-
lenges to his supervised-release-revocation sentence.
I
A
Tech companies face an issue that social-media users know
to be all too real: A non-negligible amount of unlawful activity oc-
curs on their platforms. That creates legal and reputational risks.
To combat the posting and sharing of harmful content, and to mit-
igate the associated perils, the companies have developed a variety
of tools—some manual, others automated. This case turns, at least
in part, on the particulars of one of the tools that Google has de-
ployed to thwart the proliferation of child pornography.
Google apprises users of its anti-pornography initiatives in
two ways. First, and most directly, its “terms of service,” to which
customers must consent, expressly prohibit the use of its service
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 3 of 37

-- 3 of 37 --

4 Opinion of the Court 24-13226
“in violation of the law”—and, more expressly still, prohibit the dis-
tribution of “child pornography.” Tr. of Mot. to Suppress Hr’g at
90, Dkt. No. 192. Second, and more indirectly, Google issues
“transparency report[s]” that publicize its efforts to “identify, re-
move and report” child pornography using a “combination” of hu-
man review and “automated detection tools.” Id. at 97.
Specifically at issue here is one of those “automated detec-
tion tools” called hash-value matching. A hash value is a string of
characters that together represent a file’s unique, algorithmically
generated “digital fingerprint.” Id. at 121, 123. As relevant here,
that means that if a photographic file is altered in any way, the hash
value will change. Id. at 172. By contrast—and we’ll elaborate on
the nuances in good time—if “two files ha[ve] the same hash value,
they’re the same file[.]” Id. at 20. To be sure, our flesh-and-blood
senses rebel at the notion that a digital image can be reduced to a
collection of non-visual characters. But the fact is that a computer
never “sees” the image as we do. To the computer, a hash value is
a perfectly adequate—and accurate—digital stand-in.
Here’s how Google’s hash-value matching protocol works:
When the company detects a suspicious file—whether through a
user report, automated scanning, or some other process—it imme-
diately compares the file’s hash value to those in an internal
“CSAM” (i.e., child sexual abuse material) repository. That reposi-
tory contains the hash values of files previously determined by
Google’s expert human reviewers to depict child pornography. Ac-
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 4 of 37

-- 4 of 37 --

24-13226 Opinion of the Court 5
companying these hash values are standard “industry classifica-
tion[s]”—jointly established by several internet service providers—
that categorize the type of content in the file. So, for example, the
classification “B1” means that the file depicts a “[p]ubescent minor
involved in [an] overt sex act.” Id. at 114.
If the hash value of the suspect file matches one in the repos-
itory designated and classified as child pornography, then Google
sends the file, along with its hash and classification, to the National
Center for Missing and Exploited Children (NCMEC)—which, in
turn, forwards the material to the appropriate law-enforcement of-
ficials. If the file’s hash value doesn’t match one in the repository,
a Google employee will conduct a manual review. If he determines
that it depicts child pornography, he may note the hash value and
add it to the company’s internal repository along with his judgment
about the image’s proper categorization. But the information he
relays to NCMEC—file, hash value, categorization—are the same
as that he would have conveyed had there been a hash match.
B
Enter Richard Brillhart. In May 2021, Yahoo and Google in-
dependently flagged email accounts transmitting what the compa-
nies believed to be child pornography. Two of those accounts—
reb3280e@yahoo.com and reb3280@gmail.com—had a few com-
mon, revealing identifiers pointing to Brillhart: Both were created
under the name “Reb Reb,” both listed the same recovery phone
number tied to Brillhart, both used his birthdate (March 2, 1980) in
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 5 of 37

-- 5 of 37 --

6 Opinion of the Court 24-13226
the usernames, and one listed his birthdate in its subscriber infor-
mation.
Reviews of the email accounts yielded a lot of incriminating
material. Brillhart’s Yahoo accounts were used to transmit 241 vid-
eos and images of suspected child pornography, including some de-
picting toddlers and prepubescent children engaged in sexual acts
with adult men. One message included a selfie, which company
investigators used to identify Brillhart. Consistent with Yahoo cor-
porate policy, each file was manually reviewed by a human being
and confirmed to be child pornography. The company then sent
the files, along with Brillhart’s identifying information and sex-of-
fender status, to NCMEC.
Google’s investigation determined that three of Brillhart’s
email accounts contained a total of four illicit files. Three files were
confirmed to depict child pornography by way of human review,
the fourth through the hash-matching protocol already described.
Like Yahoo, Google relayed the results of its investigation to
NCMEC.
In possession of the files and Brillhart’s identifying infor-
mation, NCMEC identified his residence and promptly forwarded
all the incriminating files and accompanying information to Officer
Katrina Lee of the Fort Myers Police Department. From the com-
panies’ “CyberTips,” Officer Lee could tell that they had already
identified each of the files as child pornography. Importantly here,
Google’s report specifically indicated that it had verified one of the
files through hash matching. Officer Lee understood that to mean
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 6 of 37

-- 6 of 37 --

24-13226 Opinion of the Court 7
that “while the contents of the file were not reviewed concurrently
to making the report, historically, a person had reviewed a file
whose hash, or digital footprint, matched the hash of the reported
image and determined it contained apparent child pornography.”
Id. at 171. In short, she knew (1) that an actual Google employee
had previously reviewed the image as part of another user’s file,
determined it to be child pornography, and ensured that it was as-
signed a hash value, and (2) that Google had thereafter digitally
matched the hash value of the file in Brillhart’s account to the value
of the previously reviewed image. Acting without a warrant, Of-
ficer Lee proceeded to review all the files for herself and confirmed
that they did in fact depict child pornography. She relayed her con-
clusions to agents at Homeland Security Investigations (HSI), who
relied on the information to obtain search warrants for Brillhart’s
apartment, car, and Yahoo and Google accounts.
On the morning of September 8, 2021, HSI Special Agent
Elijah Cook executed the warrant on Brillhart’s apartment.
Brillhart shared the two-bedroom apartment with Rodney Dutra—
himself a convicted child-pornography possessor who was later ar-
rested for a parole violation arising out of this investigation. In
Brillhart’s bedroom, Special Agent Cook recovered a cellphone
containing a micro-SD card. The card held 40 videos and 60 images
of child pornography, including some involving victims as young
as six months old. Six of the images matched files previously sent
from reb3280@yahoo.com. Like the email accounts, the SD card
contained selfies of Brillhart.
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 7 of 37

-- 7 of 37 --

8 Opinion of the Court 24-13226
HSI agents separately executed a search warrant on
Brillhart’s Yahoo accounts, where they found emails welcoming
Brillhart to Kik—an online messaging platform. The agents then
searched “Reb Reb” on Kik and found another account, “flped4u,”
registered in August 2021. Upon searching Kik’s records, the
agents found more child pornography and Brillhart selfies, and they
discovered that other Kik users had reported the account holder for
introducing himself as “41M, pedo” from Fort Myers and for send-
ing child pornography.
C
A grand jury indicted Brillhart on two counts: (1) distrib-
uting visual depictions of a minor engaged in sexually explicit con-
duct “on or about May 10, 2021,” in violation of 18 U.S.C.
§§ 2252(a)(2) and (b)(1); and (2) possessing and accessing with in-
tent to view visual depictions of a prepubescent minor engaged in
sexually explicit conduct “from on or about April 14, 2021, through
on or about September 8, 2021,” in violation of 18 U.S.C.
§§ 2252(a)(4)(B) and (b)(2). Brillhart initially moved to dismiss the
charges on the ground that the facts underlying them overlapped
and, accordingly, that they violated the Double Jeopardy Clause.
The district court denied the motion, concluding that the two
counts were based on different images and conduct.
As relevant for purposes of appeal, Brillhart then moved to
suppress the evidence gathered from his Google account, contend-
ing that the government’s search violated the Fourth Amendment.
The district court denied that motion as well, alternatively holding
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 8 of 37

-- 8 of 37 --

24-13226 Opinion of the Court 9
(1) that Brillhart had no reasonable expectation of privacy in videos
and images that he had voluntarily uploaded to his email accounts;
(2) that the so-called “private search” doctrine vitiated any Fourth
Amendment concerns because Google had discovered the child
pornography in Brillhart’s account through both human review
and hash matching and because the government’s ensuing search
didn’t reveal anything additional; and (3) that, in any event, the
“good faith” exception protected Officer Lee’s initial warrantless
search.
On the eve of his trial, Brillhart moved under Federal Rule
of Evidence 403 to prevent the government from introducing into
evidence, publishing, or presenting testimony about graphic im-
ages or video clips depicting violence against infants or toddlers.
The district court denied the motion, reasoning that the material
constituted direct evidence of the charged offenses. Without per-
sonally reviewing the files in question, the court held that because
the government intended to introduce only a limited number of
images and videos, the danger of unfair prejudice didn’t substan-
tially outweigh their probative value.
The government also filed a motion in limine to prevent
Brillhart from introducing a series of emails exchanged between his
roommate, Dutra, and Dutra’s then-girlfriend, Katie Morris, sev-
eral of which referenced Brillhart and the HSI raid of their shared
residence. Brillhart insisted that the emails supported his theory
that Dutra had framed him. Although he acknowledged that not
every email was relevant, he maintained that they were admissible
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 9 of 37

-- 9 of 37 --

10 Opinion of the Court 24-13226
for the purpose of impeaching Dutra and Morris. The district court
disagreed, excluding the emails as irrelevant and on hearsay
grounds.
At trial, following the close of the government’s case in
chief, Brillhart argued that the evidence was insufficient to convict
him and filed a motion for judgment of acquittal, which the district
court denied. He also requested a jury instruction on his “theory
of defense”—i.e., that he was framed—asking the court to tell the
jury “that [Dutra] had access to [Brillhart]’s room, email, phone,
and other devices and downloaded the child pornography at issue.”
The court denied the request, deeming it sufficient to instruct ju-
rors that Brillhart “can only be found guilty for what he has done.”
The jury convicted Brillhart on both counts.
At sentencing, Brillhart moved for additional psychological
evaluations to assist the court in determining an appropriate sen-
tence. The district court denied the motion, noting that Brillhart’s
mental-health history was already well documented: a bipolar-dis-
order diagnosis in 2000 and hebephilia1 and sexual-sadism-disorder
diagnoses in 2018. Brillhart also moved to continue sentencing, as-
serting a desire to attend a mental-health appointment and file an
untimely new-trial motion. The court denied that motion, as well.
The district court enhanced Brillhart’s sentence by five lev-
els on the ground that he had engaged in a “pattern of activity in-
volving the sexual abuse or exploitation of a minor” within the
1 Hebephilia refers to an interest in early-adolescent pubescent children.
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 10 of 37

-- 10 of 37 --

24-13226 Opinion of the Court 11
meaning of U.S.S.G. § 2G2.2(b)(5). It did so based on two of
Brillhart’s past offenses: a conviction for fourth-degree criminal
sexual conduct arising out of a sexual encounter with a 15-year-old,
and a probation violation arising out of a sexual encounter with a
16-year-old. Brillhart objected, arguing that controlling precedent
required that each instance of abuse or exploitation itself match
one of the statutory references listed in the Guidelines’ commen-
tary. He maintained that the probation violation involving the 16-
year-old didn’t match and therefore couldn’t count toward the
“pattern.” The district court disagreed and sentenced Brillhart to
the statutory maximum of 480 months on the distribution count
and a concurrent 240 months on the possession count. At the same
hearing, the court further found that the distribution and posses-
sion convictions violated the terms of Brillhart’s supervised release
related to an earlier conviction and, accordingly, imposed an addi-
tional two-year term of imprisonment. Sent’g Tr. at 4, 76, 86, Dkt.
No. 245.
II
On appeal, Brillhart raises a total of 11 issues. First, and most
significantly, he argues that the district court erred in relying on the
“private search” doctrine to uphold against a Fourth Amendment
challenge the warrantless search of a file identified as child pornog-
raphy by Google through a hash-matching procedure; this auto-
mated process, he says, doesn’t qualify as the sort of private search
to which the doctrine applies. Second, Brillhart contends that
child-pornography possession is a lesser-included offense of distri-
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 11 of 37

-- 11 of 37 --

12 Opinion of the Court 24-13226
bution, and that by charging him with both the government vio-
lated the Double Jeopardy Clause. Third, he asserts that there was
insufficient evidence to convict him on either count. Fourth, he
argues that the district court abused its discretion by allowing the
government to display child pornography to the jury—doubly so,
he says, because the court did so without first reviewing the evi-
dence. Fifth, Brillhart contends that the district court abused its
discretion by excluding emails between his roommate, Dutra, and
Dutra’s then-girlfriend, Morris, which he says would have shown
Dutra’s motive and ability to frame him. Sixth, he asserts that the
district court erred when it declined his proposed “theory of de-
fense” jury instruction. Seventh, Brillhart argues that the district
court abused its discretion at sentencing when it denied his mo-
tions for additional psychological examinations and a continuance.
Eighth, he contends—and the government helpfully concedes—
that the district court erred in applying the five-level pattern-of-ac-
tivity enhancement under U.S.S.G. § 2G2.2(b)(5). Finally—ninth,
tenth, and eleventh—Brillhart claims that his supervised-release-
revocation sentence is invalid because the district court miscalcu-
lated the applicable Guidelines range, denied him an opportunity
to allocute, and imposed a substantively unreasonable sentence.
A
We begin with Brillhart’s most prominent contention—that
Google’s digital hash-matching protocol wasn’t a valid private
search, and that law enforcement’s subsequent warrantless review
of a file that Google had earlier confirmed to be child pornography
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 12 of 37

-- 12 of 37 --

24-13226 Opinion of the Court 13
via hash matching thus violated the Fourth Amendment.2 The
government responds with three alternative bases for affirmance.
First, at the threshold, it contends that Brillhart lacked any reason-
able expectation of privacy in his illicit files and, therefore, that he
enjoyed no Fourth Amendment protection. Second, the govern-
ment argues that Google’s hash match was a valid private search
that permitted a law-enforcement officer to conduct a subsequent
warrantless visual inspection of the images. And finally, it argues
that regardless of the legality of the search, the applicability of the
private-search doctrine is sufficiently debatable to implicate the
good-faith exception to the warrant requirement.
The expectation-of-privacy issue is close, but we find that we
needn’t address it. Even if Brillhart had the requisite reasonable
expectation of privacy, so as to trigger the Fourth Amendment’s
protection, we conclude—for reasons we will explain—that the pri-
vate-search doctrine insulates law enforcement’s warrantless re-
view of Brillhart’s emails here. And, because we hold that the pri-
vate-search doctrine applies, we needn’t address the downstream
question whether the good-faith exception applies.
1
The private-search doctrine comprises two corollary princi-
ples. First, and most obviously, the Fourth Amendment “is wholly
2 We review a denial of suppression for clear error on the facts and the appli-
cation of law to facts de novo. United States v. Perkins, 787 F.3d 1329, 1344
(11th Cir. 2015).
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 13 of 37

-- 13 of 37 --

14 Opinion of the Court 24-13226
inapplicable to a search or a seizure, even an unreasonable one, ef-
fected by a private individual not acting as an agent of the Govern-
ment or with the participation or knowledge of any governmental
official.” United States v. Castaneda, 997 F.3d 1318, 1327 (11th Cir.
2021) (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)).
And second, so long as any ensuing search by government officers
doesn’t “exceed[] the scope of the private search,” no Fourth
Amendment issue arises. Jacobsen, 466 U.S. at 115. Accordingly,
the key question in many private-search cases—including this
one—is whether the government’s search revealed anything mate-
rially more or different than what the private party had already dis-
covered.
United States v. Jacobsen is the leading case. There, employ-
ees of a private-freight carrier discovered a damaged package. Id.
at 111. Upon further inspection, they noticed something suspi-
cious, so they summoned a DEA agent, alerting him to “a tube con-
taining plastic bags and, ultimately, white powder.” Id. at 111, 118.
At that point, there was “a virtual certainty that nothing else of sig-
nificance was in the package and that a manual inspection of the
tube and its contents would not tell [the agent] anything more than
he already had been told.” Id. at 119. So even though the agent
proceeded to visually inspect the contents of the package in greater
detail, doing so “enabled [him] to learn nothing that had not previ-
ously been learned during the [company’s] private search.” Id. at
120. Accordingly, the Supreme Court held that the government’s
seizure and visual inspection of the package didn’t violate the sus-
pect’s Fourth Amendment rights. Id. at 121–22.
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 14 of 37

-- 14 of 37 --

24-13226 Opinion of the Court 15
Put simply, the private-search doctrine permits government
agents to replicate and verify a private party’s earlier search. And
importantly, the fact that the government’s search might be more
thorough isn’t disqualifying. In United States v. Garcia-Bercovich, 582
F.3d 1234 (11th Cir. 2009), for instance, we held that where a single
shrink-wrapped pallet contained 13 boxes covered by a single ship-
ping manifest, a private search of one of the boxes justified the war-
rantless search of the other 12. Id. at 1238. We reasoned that the
district court’s finding that “it was all one package” wasn’t clearly
erroneous and, therefore, that federal agents’ additional investiga-
tion didn’t exceed the scope of the earlier private search—and thus
didn’t violate the Fourth Amendment. Id. Our decision in United
States v. Simpson, 904 F.2d 607 (11th Cir. 1990), is to the same effect.
There, a FedEx employee found a package containing a folder with
images of nude children, magazines with depictions of minors that
might constitute child pornography, and videotapes that the em-
ployees determined contained sexually explicit material with actors
that appeared to be minors. Id. at 609. We ultimately determined
that the FBI’s subsequent investigation of the same material didn’t
exceed the scope of the private search “simply because they took
more time and were more thorough than the Federal Express
agents.” Id. at 610. It was enough that “[t]he box’s contents had
already been examined, their illicit character had been determined,
and they were open for viewing by the time the [federal agents]
arrived on the scene.” Id.
To be sure, the private-search doctrine has limits. For in-
stance, in Walter v. United States, a splintered Supreme Court held
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 15 of 37

-- 15 of 37 --

16 Opinion of the Court 24-13226
that when a private actor opened a misdirected package and did
nothing more than read the descriptive labels on videotapes with-
out actually examining their contents, the government impermis-
sibly expanded the scope of the search when it viewed the videos.
447 U.S. 649, 656 (1980) (plurality opinion); see also id. at 660–62
(White, J., concurring in part and concurring in the judgment).
Our more recent decision in United States v. Sparks, 806 F.3d 1323
(11th Cir. 2015), nicely illustrates the doctrine’s contours. That
case involved multiple videos depicting child pornography. We
concluded that a federal agent exceeded the scope of the private
search when he viewed one of the videos, which the private party
had never watched. Id. at 1336. But with respect to a video that
the private party had watched, we reasoned that “[t]hough [the fed-
eral agent] may have looked at . . . the video more closely than did
[the private actor] . . . the private party’s earlier viewing of the
same . . . video insulated law enforcement’s later, more thorough
review of [it] from transgressing the Fourth Amendment.” Id.
2
As our descriptions indicate, to this point, most private-
search cases (at least in this circuit) have involved a flesh-and-blood
individual’s review of a disputed piece of evidence. The central
question here is whether Google’s digital hash-value matching pro-
tocol should be treated the same way for private-search purposes.
Recall, first, the nature of the hash value: A hash value is a string
of characters that together constitute a file’s unique “digital signa-
ture or fingerprint,” such that “if two files ha[ve] the same hash
value, they’re the same file[.]” Tr. of Mot. to Suppress Hr’g at 20.
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 16 of 37

-- 16 of 37 --

24-13226 Opinion of the Court 17
Recall, next, Google’s particular hash-matching protocol: After an
individual Google employee confirms through human review that
a particular file depicts child pornography, that file’s hash value is
added to a company database along with a corresponding “industry
classification” describing the file’s contents. Id. at 101, 105. If,
thereafter, an automated process reveals that another file’s hash
value matches one in the database, Google concludes—without
further human review—that it’s the same file and forwards it along
with its classification to NCMEC. Id. at 121–22, 124.
Our sister circuits are split over whether hash matching con-
stitutes a valid private search. The Fifth and Sixth Circuits have
held that it does and, therefore, that a subsequent search by law
enforcement of the same images falls within the scope of the hash-
match search, and thus of the private-search doctrine. See United
States v. Reddick, 900 F.3d 636 (5th Cir. 2018)3; United States v. Miller,
982 F.3d 412 (6th Cir. 2020). In so holding, both courts emphasized
the “near-perfect accuracy” of hash-value matching—which, they
say, ensures that law enforcement “learn[s] nothing . . . that it had
not already learned from the private search.” Reddick, 900 F.3d at
640; Miller, 982 F.3d at 418.
The Second, Fourth, and Ninth Circuits have held, to the
contrary, that a hash-value match cannot constitute a valid private
search. See United States v. Maher, 120 F.4th 297, 314 (2d Cir. 2024);
3 Reddick concerned Microsoft’s hash-matching protocol. At least at the time
of that case, this process was materially identical to Google’s here. See Reddick,
900 F.3d at 637.
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 17 of 37

-- 17 of 37 --

18 Opinion of the Court 24-13226
United States v. Lowers, 170 F.4th 134, 156 (4th Cir. 2026); United
States v. Wilson, 13 F.4th 961, 971 (9th Cir. 2021). Although their
approaches differ at the margins, all three courts have conceived of
a digital file as akin to a “container[]” or a “sealed manila envelope”
whose precise contents can’t really be known until a human opens
it. Lowers, 170 F.4th at 149 & n.9; Maher, 120 F.4th at 317 (analo-
gizing digital files found on two separate email accounts to two dif-
ferent sealed containers in the physical world); Wilson, 13 F.4th at
973, 977 n.13 (emphasizing that the image files were “unopened”).
They have also emphasized that because Fourth Amendment
rights are “personal,” a private search that uses information
gleaned from a file that was once in the possession of a third party
can’t defeat the suspect’s privacy interests, even in the very same
file. Lowers, 170 F.4th at 153–54; Maher, 120 F.4th at 319; Wilson, 13
F.4th at 975.
3
We agree with the Fifth and Sixth Circuits, and thus hold
that Google’s application of its hash-matching protocol to
Brillhart’s file qualifies as a valid private search. Through hash
matching, Google simply used a computer to save one flesh-and-
blood individual the trouble of having to confirm what another (or
perhaps even the same) flesh-and-blood individual had already con-
cluded. It’s worth noting at the outset that, at least as Google em-
ploys it, hash-value matching doesn’t replace human review en-
tirely. Rather, at step one, so to speak, an individual Google em-
ployee reviews a file, determines that it depicts child pornography,
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 18 of 37

-- 18 of 37 --

24-13226 Opinion of the Court 19
assigns it a hash value and classification, and enters it into the com-
pany’s database. See Tr. of Mot. to Suppress Hr’g at 76, 101. It is
only at step two that the automated hash match occurs: A com-
puter compares a new file’s hash value against those in the database
known to depict child pornography and, if (but only if) there’s a
match, reports the new file as child pornography. Id. at 124.4
Under Supreme Court precedent, the controlling question is
whether there is “virtual certainty” that law enforcement will find
“nothing else of significance” in its own review that hadn’t already
been revealed by the private search—here, that the digital file de-
picts child pornography. Jacobsen, 466 U.S. at 119. We are satisfied
that the search at issue here satisfies that test.
To be sure, a degree of apprehension is understandable; to
date, the norm has been stem-to-stern human review. In point of
fact, though, a computer comparing digital hash values is almost
surely less likely to slip up and mismatch two images than is a hu-
man being eyeballing them. After all, “[m]ost people who view
images do not use a magnifying glass to undertake a pixel-by-pixel
inspection” of the sort that hash matching inherently entails. Mil-
ler, 982 F.3d at 430.
4 As there was prior human review of the file at issue in this case, we needn’t
decide whether the Fourth Amendment requires that a qualifying private
search entail human involvement.
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 19 of 37

-- 19 of 37 --

20 Opinion of the Court 24-13226
And to be clear, hash matching’s “near-perfect accuracy,” id.
at 418, isn’t just theoretical; uncontested record evidence demon-
strates it. As already noted, at the suppression hearing in this case,
an e-crimes investigator described a hash value as “a unique digital
signature”—meaning, she said, that “if two files had the same hash
value, they’re the same file.” Tr. of Mot. to Suppress Hr’g at 7, 20.
The flip side, she said, is also true: There is no “reason why [two
files] would have different hash values if they’re the same file.” Id.
at 73. Importantly, she distinguished a hash value from a file name:
Unlike a unique hash value, she explained, “we could have ten im-
ages that have the same filename that are all different images.” Id.
A custodian of records at Google later confirmed that a hash value
is a “digital fingerprint,” widely used to “fight online [child porn]
across industry.” Id. at 101, 121. There was no evidence to the
contrary.5
Even beyond the record in this case, there is a broad consen-
sus among courts that have considered the issue that hash match-
ing is a practically fool-proof way to confirm that two files are in-
deed one and the same. In Miller, for instance, the Sixth Circuit
pointed to an article published by the Federal Judicial Center,
which confirms that hash values are “so distinctive that the chance
that any two data sets will have the same one, no matter how sim-
ilar they appear, is less than one in one billion.” Miller, 982 F.3d at
5 In this sense, our record is distinguishable from that the Fourth Circuit con-
fronted in Lowers; there, “no record evidence” supported the finding that hash-
matching technology was “exceedingly reliable.” Lowers, 170 F.4th at 148.
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 20 of 37

-- 20 of 37 --

24-13226 Opinion of the Court 21
430 (quoting Barbara J. Rothstein et al., Managing Discovery of Elec-
tronic Information: A Pocket Guide for Judges 38 (2d ed. Fed. Jud. Ctr.
2012)). That court also noted a manual published by a state gov-
ernment agency stating that “[t]he chance of two [different] files
coincidentally sharing the same hash value is 1 in
9,223,372,036,854,775,808.” Id. (quoting United States v. Dunning,
2015 WL 13736169, at *2 (E.D. Ky. Oct. 1, 2015)).
Other courts—notably including even those that have held
that hash matching does not constitute a valid private search—have
likewise credited findings that, practically speaking, “no two dis-
similar files will have the same hash value.” United States v. Cartier,
543 F.3d 442, 446 (8th Cir. 2008); accord United States v. Wellman,
663 F.3d 224, 226 n.2 (4th Cir. 2011) (“In the present case, the dis-
trict court found that files with the same hash value have a 99.99
percent probability of being identical.”); United States v. Owens, 18
F.4th 928, 932 n.1 (7th Cir. 2021) (noting that experts on both sides
agreed that “if the hash value of two files matches up, then the
chances are ‘astronomically small’ that the two files are different”);
United States v. Rosenschein, 136 F.4th 1247, 1258 (10th Cir. 2025)
(crediting evidence that describes a hash-value error rate as “one in
fifty billion”); United States v. Gasperini, 729 F. App’x 112, 114 (2d
Cir. 2018) (“Matching of hash values is an established method for
authenticating digital evidence.”); Wilson v. Gamboa, 2025 WL
2977246, at *1 (9th Cir. Oct. 22, 2025) (“Both the [defendant’s] pro-
posed expert and the State’s expert affirm that hash values, even if
they do not portray the contents of an image, are unique and thus
identify an image.”).
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 21 of 37

-- 21 of 37 --

22 Opinion of the Court 24-13226
4
Respectfully, we aren’t persuaded by the Second, Fourth,
and Ninth Circuits’ reasons for refusing to apply the private-search
doctrine to tech companies’ hash-matching investigations. Those
courts, we think, have made three key missteps.
a. First, and perhaps most notably, they analogized a file’s
hash value to the descriptive film-box “label” in Walter, the viewing
of which was deemed insufficient to authorize law enforcement’s
later examination of the film itself. See Maher, 120 F.4th at 318;
Lowers, 170 F.4th at 155; Wilson, 13 F.4th at 973. The label in Walter
consisted of “suggestive drawings” and “explicit descriptions of the
contents,” 447 U.S. at 652—or, as the lower court there explained,
the “title of the individual movie” and “a detailed description, in
explicit terms, of the . . . acts depicted in the film,” United States v.
Sanders, 592 F.2d 788, 791 (5th Cir. 1979), rev’d sub nom. Walter, 447
U.S. 649.
The label analogy doesn’t hold up, and a bit more tech talk
will explain why. At bottom, a digital image file is a grid of pixels,
each of whose color and brightness are encoded as patterns of 1s
and 0s. See Christopher J. Buccafusco, Gaining/Losing Perspective on
the Law, or Keeping Visual Evidence in Perspective, 58 U. Mia. L. Rev.
609, 614–15 (2004) (explaining that in the case of digital photo-
graphs, “the light entering the lens of the digital camera is reflected
off a sensor that records the data in binary form and stores it in a
file”). So when a person “opens” a file, he isn’t really revealing
what’s “inside”; rather, he’s instructing the computer to render a
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 22 of 37

-- 22 of 37 --

24-13226 Opinion of the Court 23
collection of 1s and 0s into a colorful grid. A hash value is a fixed-
length string of characters produced by a computer function. That
function takes the binary 1s and 0s that constitute an image and,
through a series of operations that repeatedly deconstruct, manip-
ulate, and reshuffle the underlying data, produces a hash string.
This resulting string is shorter than the 1s-and-0s binary, which fa-
cilitates mass storage and easy retrieval, but it’s long enough to
minimize (essentially to zero) the risk of misidentification.6
In plain English: A hash value isn’t a “label” describing
what’s inside a file; it’s a one-way transformation of the file’s in-
sides, produced from the same 1s and 0s that form the image that
appears on the screen. Put a little differently, a hash value isn’t a
badge meant to describe the content “contained” inside a file, Low-
ers, 170 F.4th at 155—it is the content. In this case, at some point
in the past a human being at Google determined that the 1s and 0s
6 In an “MD5” hash like the one that seems to be at issue here, see Tr. of Mot.
to Suppress Hr’g at 20, 135, a character that would show as a 1 or a 0 in binary
is instead rendered as one of 16 “hexadecimal” characters: 0-9 or a-f. This al-
lows for a more condensed presentation of data, as each “hex” character rep-
resents a unique configuration of four 1s and 0s. See Pyrotechnics Mgmt. v. XFX
Pyrotechnics, 38 F.4th 331, 335 n.4 (3d Cir. 2022). By way of illustration, 0111
is “7” in hexadecimal. See Lotus Dev. Corp. v. Paperback Software Intern., 740 F.
Supp. 37, 44 (D. Mass. 1990). Though an MD5 hash-value is typically fixed at
32 characters and therefore inevitably and irreversibly condenses files larger
than 128 bits, the transformation is still based on—and uniquely linked to—a
file’s complete set of bits. See generally Ronald Rivest, The MD5 Message-Digest
Algorithm, MIT Lab’y for Comp. Sci. & RSA Data Sec., Inc. (1992),
https://datatracker.ietf.org/doc/html/rfc1321 [https://perma.cc/DKY2-
HMTA] (describing the MD5 process).
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 23 of 37

-- 23 of 37 --

24 Opinion of the Court 24-13226
that constituted the image in question, when rendered into visual
form, depict child pornography; the subsequent hash match merely
replicated that determination digitally. So again, the analogy to the
label in Walter just doesn’t reflect technical reality.
b. The Second, Fourth, and Ninth Circuits separately con-
cluded that a hash-match search isn’t sufficiently detailed to qualify
for private-search treatment. See Maher, 120 F.4th at 315; Lowers,
170 F.4th at 154–55; Wilson, 13 F.4th at 972. The Fourth Circuit,
for instance, asserted that a hash value provides “no useful infor-
mation” and, unlike a police report following a manual search, fails
to “describ[e] the contents of the image.” Lowers, 170 F.4th at 154–
55. Technical misconceptions aside—again, the hash value is a fin-
gerprint that represents and identifies “the contents of the im-
age”—we think those courts imposed too heavy a burden. In Ja-
cobsen, the Supreme Court never said anything about the details of
the private parties’ inspection and subsequent tip—only that
“[w]hen they observed the white powder in the innermost bag,
they notified” the DEA. 466 U.S. at 111. The Court there empha-
sized that what matters is the “virtual certainty that nothing else of
significance [is] in the package” beyond what the private search re-
vealed “and that a manual inspection of the [package] would not
tell [a law-enforcement officer] anything more” than he already
knew. Id. at 119.
Nor has this Court read Jacobsen to require a private party’s
search to be particularly thorough—let alone as thorough as the
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 24 of 37

-- 24 of 37 --

24-13226 Opinion of the Court 25
search subsequently conducted by law enforcement. To the con-
trary, we’ve held that it’s enough that a private search “exam-
ine[d]” the contents of a package in sufficient detail to “determine”
its “illicit character.” Simpson, 904 F.2d at 610. A requirement that
private entities furnish law enforcement with comprehensive re-
ports detailing their exact impressions would—we think per-
versely—condition the private-search doctrine’s application on the
quality and accuracy of a private party’s investigatory capabilities.
Cf. Wilson, 13 F.4th at 972–74 (emphasizing the lurid, specific details
the government uncovered through its investigation that weren’t
contained in the private tip, including vivid descriptions of the vic-
tim and the sexual acts depicted).
Where we and others have determined that a governmental
search exceeded the scope of an earlier private search, it has been
because government officers viewed items (videos, files, etc.) that
the private party hadn’t. See, e.g., Sparks, 806 F.3d at 1336 (reason-
ing that law enforcement’s examination of a previously unre-
viewed video violated the private-search doctrine, whereas its ex-
amination of a previously reviewed video did not); see also, e.g.,
United States v. Ackerman, 831 F.3d 1292, 1306 (10th Cir. 2016) (Gor-
such, J.) (“[T]he undisputed facts before us indicate that NCMEC
opened Mr. Ackerman’s email first and did so before and in order
to view not just the attachment that was the target of AOL’s private
search [conducted via hash matching] but three others as
well . . . . [E]ach of these steps—opening the email and viewing the
three other attachments—was enough to risk exposing private,
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 25 of 37

-- 25 of 37 --

26 Opinion of the Court 24-13226
noncontraband information that AOL had not previously exam-
ined.”). These decisions indicate that the “scope” of a private
search relates more to its “breadth”—whether a private party’s re-
view extended to a particular file—than its “depth.” An industry-
standard hash-match report—which provides the file’s hash value
and the same file’s prior human-reviewed classification—is there-
fore sufficiently detailed to ensure that further police review will
reveal nothing materially new or different about the file.
c. Finally, stressing that Fourth Amendment rights are “per-
sonal,” the Second, Fourth, and Ninth Circuits concluded that an
earlier determination by a private party that a file in another individ-
ual’s possession constituted illicit material can’t inform the validity
of the search of the suspect’s own files. See Lowers, 170 F.4th at
153–54; Maher, 120 F.4th at 319; Wilson, 13 F.4th at 974. For sup-
port, the Fourth Circuit invoked the hornbook principle that “a de-
fendant can mount a Fourth Amendment challenge only if he has
his own cognizable Fourth Amendment privacy interest in the in-
vaded place”—and, importantly, asserted that the “inverse must
also be true.” Lowers, 170 F.4th at 153–54 (emphases added) (quot-
ing United States v. Green, 106 F.4th 368, 375 (4th Cir. 2024)). That
is, “[i]f [the defendant] could not challenge a government search of
someone else’s files because that search did not implicate his pri-
vacy interests, then [a private party’s] visual examination of a third-
party’s files could not affect, much less frustrate, [the defendant’s]
expectation of privacy in his own unopened files.” Id. at 154.
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 26 of 37

-- 26 of 37 --

24-13226 Opinion of the Court 27
We’re not so sure. The question here isn’t whether a de-
fendant can invoke his Fourth Amendment rights in this context
but, rather, whether he has any Fourth Amendment interests to
invoke. And for reasons we’ve explained, at the point that a private
party conducts a search, those interests—at least insofar as the gov-
ernment’s ensuing search doesn’t exceed the scope of the private
party’s—dissipate.
By its very nature, hash matching ensures a decisive personal
link to the suspect. As it applies here, it guarantees that the same
file that an individual Google employee previously flagged as de-
picting child pornography has reappeared in the suspect’s own ac-
count. Accordingly, a Google employee’s earlier judgment about
the same file is, by virtue of the hash match, pertinent to the com-
pany’s determination that the suspect, based on his own actions, has
acquired child pornography.
* * *
For the foregoing reasons, we hold that the private-search
doctrine applies and that law enforcement’s search following
Google’s hash match didn’t violate Brillhart’s Fourth Amendment
rights.
B
Next up, double jeopardy. In relevant part, the Fifth
Amendment states that “[n]o person shall be . . . subject for the
same offence to be twice put in jeopardy of life or limb.” U.S.
Const. amend. V. Brillhart contends that his double-jeopardy
rights were violated when he was convicted of both possession and
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 27 of 37

-- 27 of 37 --

28 Opinion of the Court 24-13226
distribution of child pornography.7 To determine if two “of-
fence[s]” are “the same” within the meaning of the Double Jeop-
ardy Clause, we examine whether “each provision requires proof
of a fact which the other does not.” Blockburger v. United States, 284
U.S. 299, 304 (1932). “[T]he Blockburger test focuses on the proof
necessary to prove the statutory elements of each offense, rather
than on the actual evidence to be presented at trial.” Illinois v. Vi-
tale, 447 U.S. 410, 416 (1980). The questions for us, therefore, are
(1) whether under 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2) possession
requires distribution; and (2) whether under 18 U.S.C. §§ 2252(a)(2)
and (b)(1) distribution requires possession.
We hold that distribution and possession of child pornogra-
phy are distinct offenses. It is self-evident, we think, that the pos-
session of a thing doesn’t require its distribution. The real question
is whether the distribution of a thing requires its possession. We’ve
previously held, albeit in the drug context, that it doesn’t: “While
possession will undoubtedly be present in most instances of distri-
bution, neither the statutory language nor the cases involving dis-
tribution support the proposition that a showing of possession is
required.” United States v. Brunty, 701 F.2d 1375, 1381 n.16 (11th
Cir. 1983). That logic applies every bit as much to child pornogra-
phy as it does to narcotics. And it’s not quite as counterintuitive as
it might initially seem. Distribution of an illicit thing, after all,
7 We review de novo the question whether a defendant’s convictions violate
the Double Jeopardy Clause. United States v. Ford, 784 F.3d 1386, 1392 (11th
Cir. 2015).
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 28 of 37

-- 28 of 37 --

24-13226 Opinion of the Court 29
“may also consist of or include other acts perpetrated in further-
ance of sale” that don’t necessarily require possession of the thing,
“such as arranging or supervising the delivery or negotiating for or
receiving the purchase price.” Id. at 1381; see also United States v.
Oquendo, 505 F.2d 1307, 1310 (5th Cir. 1975) (upholding the distri-
bution conviction of a defendant who arranged the sale of a small
amount of heroin without ever possessing the substance).8 A child-
pornography broker or a digital-platform operator fits that bill.
In so holding, we join several of our sister circuits, which
have extended the distribution-doesn’t-require-possession logic
from drugs to child pornography. See United States v. Chiaradio, 684
F.3d 265, 280 (1st Cir. 2012); United States v. Woerner, 709 F.3d 527,
539 (5th Cir. 2013); United States v. McElmurry, 776 F.3d 1061, 1064–
65 (9th Cir. 2015). Brillhart’s reliance on United States v. Schaff, 838
F. Supp. 2d 1376, 1377 (S.D. Ga. 2011), which in turn relies on
United States v. Bobb, 577 F.3d 1366 (11th Cir. 2009), is misplaced.
Bobb addressed receipt and possession, not distribution and posses-
sion. Needless to say, “if a person takes ‘receipt’ of a thing, [he]
necessarily must ‘possess’ the thing.” Id. at 1373. But for reasons
already explained, the same doesn’t necessarily hold for distribu-
tion.
Because possession of child pornography is distinct from—
and not “the same offence” as—distribution, Brillhart’s indictment
8 Former Fifth Circuit decisions issued before October 1, 1981, are binding
precedent in this Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc).
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 29 of 37

-- 29 of 37 --

30 Opinion of the Court 24-13226
and conviction on both counts didn’t violate the Double Jeopardy
Clause.
C
Brillhart also contends that the evidence was insufficient to
sustain his convictions.9 We disagree.
We start with the distribution count, for which the evidence
was ample. First, a Yahoo account flagged for sending child por-
nography included Brillhart’s initials and birthdate in the address,
was registered under his initials, and was verified with his phone
number. See Trial Tr. vol. 1, Feb. 5, 2024, at 29–32, 42, Dkt. No. 194;
Trial Tr. vol. 2, Feb. 6, 2024, at 68–72, Dkt. No. 195. Second, an
email containing a selfie of Brillhart was sent from his phone to his
Yahoo account and then forwarded to a recipient to whom he had
previously sent child pornography. See Trial Tr. vol. 2, Feb. 6, 2024,
at 71. And finally, six child-pornography files were later found on
Brillhart’s phone that matched the email attachments sent from
this Yahoo account. Id. at 79–80. Based on that evidence, a reason-
able jury could clearly have concluded that Brillhart distributed
child pornography.
The evidence supporting Brillhart’s possession conviction is
also plentiful. Most damningly, there was child pornography on
9 We review challenges to the sufficiency of the evidence de novo, with all
evidence viewed in the light most favorable to the jury’s verdict and all rea-
sonable inferences and credibility choices made in favor of the verdict. United
States v. Gamory, 635 F.3d 480, 497 (11th Cir. 2011).
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 30 of 37

-- 30 of 37 --

24-13226 Opinion of the Court 31
Brillhart’s phone and SD card, both of which were found in his bed-
room. Id. at 18–21, 42. Brillhart claims that he was framed by his
roommate, Dutra. But his theory is belied by two key pieces of
evidence. First, on August 9, 2021, Brillhart used his phone to take
selfies, and, during the same five-and-a-half-minute span, his phone
recorded child-porn downloads. See id. at 93–94, 100–01. And sec-
ond, on August 14 and 15, a user “Reb Reb” from Fort Myers intro-
duced himself as “41M, pedo” in Kik chatrooms shortly before
sharing child pornography; at that time, Dutra had suffered a
stroke and was hospitalized and mostly incapacitated. See id. at
148–49, 178–80, 187–89, 233, 244, 247–50. In any event, “we are
bound by the jury’s determination of [Brillhart’s] credibil-
ity . . . and by its rejection of the inferences raised by [him].” United
States v. Glinton, 154 F.3d 1245, 1258 (11th Cir. 1998).
D
Brillhart separately challenges the district court’s admission
and display of several images and videos depicting child pornogra-
phy.10 He first contests the district court’s refusal to exclude the
evidence as unduly prejudicial under Federal Rule of Evidence 403.
Rule 403 permits a district court to exclude otherwise relevant evi-
dence “when its probative value is substantially outweighed by its
unfairly prejudicial nature.” United States v. Alfaro-Moncada, 607
F.3d 720, 735 (11th Cir. 2010) (citing Fed. R. Evid. 403). However,
exclusion under Rule 403 “is an extraordinary remedy which the
10 We review all evidentiary rulings for abuse of discretion. United States v.
Dodds, 347 F.3d 893, 897 (11th Cir. 2003).
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 31 of 37

-- 31 of 37 --

32 Opinion of the Court 24-13226
district court should invoke sparingly.” Id. (citation modified).
We’ve affirmed district courts’ admission of child pornography as
probative of both the “thing” possessed and defendants’ knowledge
that the “thing” is in fact child pornography. E.g., id.; United States
v. Dodds, 347 F.3d 893, 899 (11th Cir. 2003); see also United States v.
Ewing, 140 F.4th 1339, 1350 (11th Cir. 2025). So too here. The dis-
trict court did not abuse its discretion in opting not to exclude the
evidence under Rule 403.
Brillhart separately asserts that the district court erred by de-
clining to view the images before they were presented to the jury.
This Court recently rejected an identical argument in Ewing, and
we are bound by that decision here. Like the defendant there,
Brillhart made no “specific objection” to particular photos and vid-
eos at trial, but rather objected (and continues to object) to the gen-
eral obscenity in the videos and the “blind rage” they would inspire
in the jury. Compare Ewing, 140 F.4th at 1350, with Br. of Appellant
at 17. While district courts “should ordinarily review pornographic
images before ruling on an objection to those images under Rule
403,” failure to do so in these circumstances is not an abuse of dis-
cretion. Ewing, 140 F.4th at 1350–51 (“[W]e cannot say the district
court erred in denying [Ewing’s] general objection without first
viewing specific images.”).11
11 Reprising his theory that he was framed, Brillhart also argues that the district
court abused its discretion by excluding as irrelevant and/or hearsay certain
emails between his roommate Dutra and Dutra’s then-girlfriend Katie Morris
that were exchanged the year after Brillhart was charged. Although Brillhart
asserts that the emails prove that Dutra had access to his phone and had a
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 32 of 37

-- 32 of 37 --

24-13226 Opinion of the Court 33
E
We turn next to Brillhart’s objections to the district court’s
jury instructions.12 Brillhart contends that the district court erred
by refusing to instruct the jury that “another person, the defend-
ant’s roommate at the time, had access to the defendant’s room,
email, phone, and other devices and downloaded the child pornog-
raphy at issue.” Brillhart’s Proposed Am. Jury Instrs. at 22, Dkt.
No. 153. We disagree. Brillhart’s proposed instruction was “more
in the nature of a jury argument than a charge”; accordingly, “far
from being erroneous,” it was “actually quite correct” for the dis-
trict court to refuse to give it. United States v. Barham, 595 F.2d 231,
244–45 (5th Cir. 1979); see also United States v. Hill, 643 F.3d 807, 856
(11th Cir. 2011) (same). The district court instructed the jury that
Brillhart could be found guilty only if the government proved that
he committed each element of the statutory offense. Trial Tr. vol.
3, Feb. 7, 2024, at 144, Dkt. No. 196. That was sufficient. See United
States v. Ndiaye, 434 F.3d 1270, 1293 (11th Cir. 2006) (explaining that
motive to accuse him, none of the emails even mention Brillhart’s phone or
the digital accounts that underlie his indictment, and were otherwise irrele-
vant in that they reflected (at most) the relationship between the parties
months after the HSI raid. See United States v. De La Cruz Suarez, 601 F.3d 1202,
1216 (11th Cir. 2010) (excluding a statement “made after the fact, not at the
time of the incident”). Accordingly, we hold that the district court did not
reversibly err in excluding the emails.
12 We review a district court’s refusal to give a requested jury instruction for
abuse of discretion. United States v. Carrasco, 381 F.3d 1237, 1242 (11th Cir.
2004).
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 33 of 37

-- 33 of 37 --

34 Opinion of the Court 24-13226
“[t]he district court should instruct the jury on the defendant’s de-
fense theory if the theory has a foundation in evidence and legal
support” but that “a more specific instruction on a ‘theory of the
defense’ is not warranted when the charge given adequately covers
the substance of the requested instruction” (citation modified)).
F
Brillhart raises two sentencing-related challenges. First, cit-
ing both 18 U.S.C. § 3552(c) and 18 U.S.C. § 4241(a), he argues that
he was entitled to a last-minute psychological exam and a continu-
ance during which the exam could be conducted.13 But in the cir-
cumstances presented, neither statute required the district court to
grant him the requested relief. Using permissive language,
§ 3552(c) states that “[i]f the court . . . desires more information
than is otherwise available to it . . . the court may order the same
psychiatric or psychological examination and report thereon as may
be ordered under section 4244(b) of this title.” 18 U.S.C. § 3552(c)
(emphases added). Here, though, the district court had sufficient
information to assess Brillhart’s mental condition based on his pre-
vious examinations and diagnoses, the most recent of which was
from 2021, the year Brillhart committed his crimes. See Sent’g Tr.
at 42. And § 4241(a) requires “reasonable cause” to conclude that
a defendant is “suffering from a mental disease or defect rendering
13 We review the district court’s denial of a presentence psychological exami-
nation, as well as its denial of a motion of continuance, for abuse of discretion.
United States v. Nickels, 324 F.3d 1250, 1251 (11th Cir. 2003); United States v.
Valladares, 544 F.3d 1257, 1261 (11th Cir. 2008).
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 34 of 37

-- 34 of 37 --

24-13226 Opinion of the Court 35
him mentally incompetent” for sentencing purposes. 18 U.S.C.
§ 4241(a). But Brillhart never claimed to be incompetent, and there
weren’t any independent bases suggesting that his mental-health
issues deprived him of the “sufficient present ability to consult with
his lawyer with a reasonable degree of rational understanding” or
“a rational as well as factual understanding of the proceedings
against him,” as would have been required to demonstrate incom-
petence. United States v. Cruz, 805 F.2d 1464, 1479 (11th Cir. 1986)
(quoting Dusky v. United States, 362 U.S. 402, 402 (1960)). In the
circumstances presented, the district court didn’t abuse its discre-
tion in denying either the motion for investigation or the continu-
ance.
Second, Brillhart objects to the district court’s application of
a five-level pattern-of-activity enhancement under U.S.S.G.
§ 2G2.2(b)(5).14 The government agrees with Brillhart that the dis-
trict court erred in applying the enhancement, and so do we. In
Alberts, we held that “only conduct that falls within one of the stat-
utory sections referenced in the definition of ‘sexual abuse or ex-
ploitation’ in § 2G2.2(b)(5)’s application notes can justify a ‘pattern
of activity’ enhancement.” 859 F.3d at 984.15 Brillhart has only one
14 We review the district court’s application of the Sentencing Guidelines de
novo and factual findings for clear error. United States v. Alberts, 859 F.3d 979,
982 (11th Cir. 2017).
15 Neither party argued here or below that the holding of Alberts was in any
way disturbed by United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en
banc). We therefore decline to consider any ramifications that our decision
there might have on the continuing force of Alberts here. See United States v.
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 35 of 37

-- 35 of 37 --

36 Opinion of the Court 24-13226
qualifying episode: a conviction in Michigan for fourth-degree sex-
ual misconduct involving a 15-year-old. See Sent’g Tr. at 9. His
only other relevant violation, arising out of a sexual encounter with
a 16-year-old, doesn’t match any of the crimes enumerated in
§ 2G2.2(b)(5)’s application notes. See U.S.S.G. § 2G2.2(b)(5) cmt.
n.1; Sent’g Tr. at 13–14. So we’re left with one, and a pattern of
one is no pattern. Accordingly, the district court erred in applying
this enhancement.16
III
To recap what is an unavoidably long opinion, we hold as
follows: First, Google’s identification of one of Brillhart’s child-
pornography files through its semi-automated hash-matching pro-
Lusk, 119 F.4th 815, 826 n.7 (11th Cir. 2024) (declining to decide a Dupree ob-
jection that wasn’t properly preserved); United States v. Jews, 74 F.4th 1325,
1327 n.2 (11th Cir. 2023) (distinguishing Dupree on the ground that neither
party contested the validity of the Guidelines commentary).
16 Because we vacate and remand for resentencing, Brillhart’s appeal of his su-
pervised-release-revocation sentence—which was determined at the same
hearing, premised on the underlying convictions, and imposed alongside his
other sentence—is moot. Cf. United States v. Fowler, 749 F.3d 1010, 1015 (11th
Cir. 2014) (“A criminal sentence in a multi-count case is, by its nature, ‘a pack-
age of sanctions that the district court utilizes to effectuate its sentencing in-
tent consistent with the Sentencing Guidelines’ and with the § 3553(a) fac-
tors.” (quoting United States v. Stinson, 97 F.3d 466, 469 (11th Cir.1996))).
On remand, the district court may wish to consider the applicability of
18 U.S.C. § 3583(k).
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 36 of 37

-- 36 of 37 --

24-13226 Opinion of the Court 37
tocol was a valid “private search” that authorized law enforce-
ment’s subsequent warrantless review of that same file. Second,
possession of child pornography is not the same offense as distri-
bution of child pornography for double-jeopardy purposes. Third,
fourth, fifth, and sixth, the district court did not err in denying
Brillhart’s motion for judgment of acquittal, denying his motion to
exclude from the jury’s consideration several images depicting
child pornography, excluding emails between Brillhart’s roommate
and the roommate’s then-girlfriend, and declining to instruct the
jury regarding his argument that he had been framed. Seventh, the
district court did not err in denying Brillhart’s sentencing-phase re-
quest for additional psychological evaluations and a continuance.
With respect to all of those issues, we affirm.
But eighth, the district court did err in applying the pattern-
of-activity enhancement under U.S.S.G. § 2G2.2(b)(5). With re-
spect to that issue, we vacate and remand for resentencing, and dis-
miss as moot Brillhart’s claims that relate to the validity of his su-
pervised-release-revocation sentence.
AFFIRMED IN PART, VACATED AND REMANDED IN PART,
DISMISSED IN PART.
USCA11 Case: 24-13226 Document: 55-1 Date Filed: 07/09/2026 Page: 37 of 37

-- 37 of 37 --