United States of America v. Deny Mitrovich

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1010
U NITED STATES OF A MERICA ,
Plaintiff-Appellee,
v.
D ENY MITROVICH ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:18-cr-00789-1 — Gary Feinerman, Judge.
____________________
A RGUED NOVEMBER 29, 2023 — DECIDED MARCH 12, 2024
____________________
Before R IPPLE , SCUDDER , and J ACKSON-A KIWUMI, Circuit
Judges.
SCUDDER , Circuit Judge. A sprawling multinational investi-
gation resulted in the indictment of Deny Mitrovich, a Chi-
cago native, for possessing child pornography. To mount a
defense, Mitrovich sought technical information about the
software program that Australia and New Zealand had used
to identify his computer. The United States did not have that
information and, despite repeated efforts, was not able to

-- 1 of 14 --

2 No. 23-1010
obtain it. Even so, Mitrovich asserts that the government was
duty bound to produce the requested information under
Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure
and the Due Process Clause of the Fifth Amendment. The dis-
trict court disagreed. So do we. Because Rule 16 does not im-
pose an obligation to produce documents held exclusively by
foreign authorities and because Mitrovich has failed to prove
either suppression or prejudice under Brady v. Maryland, 373
U.S. 83 (1963), we affirm.
I
A
In 2014 the Federal Bureau of Investigation began investi-
gating a child-pornography website called The Love Zone. It
existed on the dark web, a collection of unindexed pages that
cannot be accessed through traditional search engines. To
visit the site, a user needed a particular software program
called a TOR browser that conceals their IP address—a digital
identifier of the accessing device and local network. By rout-
ing encrypted data through multiple servers, TOR browsers
enable users to navigate the internet without disclosing their
identity or location. Or so Deny Mitrovich thought.
A few months into its investigation, the FBI learned that
someone in Australia was administering The Love Zone using
physical servers in the Netherlands. The Bureau alerted Aus-
tralian and Dutch authorities, who seized the server and ar-
rested the administrator. Australia and New Zealand then se-
cured the administrator’s cooperation, which allowed them to
infiltrate and run the website themselves.
Over the summer of 2014, the two Oceanian authorities
worked alongside international counterparts to identify and

-- 2 of 14 --

No. 23-1010 3
arrest Love Zone users. U.S. agents provided assistance by ex-
tracting data from copies of the server, compiling databases,
sharing leads, and issuing subpoenas at the request of foreign
allies.
By November 2014, Australia and New Zealand devel-
oped a technique to pierce the anonymity provided by TOR
browsers. Impersonating the administrator of The Love Zone,
they posted a message advertising a new child pornography
video. The message contained a hyperlink. When users
clicked on it, the link prompted them to stream a file from an
external website on Windows Media Player. Anyone who did
so unknowingly revealed their IP address.
Australia and New Zealand forwarded the FBI any IP ad-
dresses belonging to networks in the United States. The Bu-
reau then traced them to physical addresses. One belonged to
the defendant Deny Mitrovich. Law enforcement obtained a
warrant to search Mitrovich’s home, which yielded hard
drives containing troves of child pornography.
B
In November 2018, a grand jury indicted Mitrovich for
possessing child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B).
From the start, Mitrovich’s defense options were limited.
Authorities had caught him in the act of streaming child por-
nography and had uncovered hundreds of unlawful images
in his home. To avoid conviction, he needed to suppress this
damning evidence.
But Mitrovich had a problem. To exclude evidence ob-
tained from his hard drives, he needed to prove that the un-
masking technique that had led to their discovery was an

-- 3 of 14 --

4 No. 23-1010
unconstitutional search. Yet the Fourth Amendment gener-
ally does not prohibit unreasonable searches conducted en-
tirely by foreign governments. See United States v. Stokes, 726
F.3d 880, 890 (7th Cir. 2013). And New Zealand and Australia
had deployed the unmasking technique without U.S.
involvement.
To overcome this hurdle, Mitrovich had to show that the
Oceanian countries had launched the unmasking technique as
part of a joint investigation with the United States. That way
the Fourth Amendment would apply to their conduct. See id.
at 890–91 (holding that the Fourth Amendment applies to a
foreign government’s extraterritorial search of a U.S. citizen
when conducted pursuant to a joint operation with U.S.
agents).
Mitrovich also had to show that the unmasking technique
amounted to a “search” within the meaning of the Fourth
Amendment. This required demonstrating that the Oceanian
authorities had violated his reasonably held expectation of
privacy. See Katz v. United States, 389 U.S. 347, 351 (1967).
Without knowing how the unmasking technique worked,
that was a tall order. It was made taller by our precedent,
which has established that a person has no reasonable expec-
tation of privacy in their IP address because they voluntarily
share it with third parties while browsing the internet. See
United States v. Caira, 833 F.3d 803, 809 (7th Cir. 2016).
Mitrovich insisted that he never voluntarily shared his IP
address, even when he clicked on the baited hyperlink. He
claimed that, once clicked, the hyperlink operated to install
malware that forced his computer to broadcast its IP address
without Mitrovich making any decision to do so. But all along

-- 4 of 14 --

No. 23-1010 5
the Oceanian governments consistently denied using
malware.
Needing evidence to support his theory, Mitrovich asked
the government in discovery to produce all documents re-
lated to the unmasking technique. The government declined
to make any production, explaining that the technique at is-
sue has been deployed by foreign governments operating in
an undercover capacity.
Mitrovich then moved to compel the production of all “in-
formation regarding the software used to unlawfully seize
[his] IP address” and “any and all communications between
the government and [the Oceanian agencies].” He maintained
that the information was essential for him to succeed on his
motion to suppress and, by extension, to develop a defense to
the child pornography charges.
The district court granted the motion. It observed that
Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure
requires the government to produce documents after only a
preliminary “showing that the requested items are material to
[the] defense.” See United States v. Thompson, 944 F.2d 1331,
1341 (7th Cir. 1991). The district court found it at least “plau-
sible” that a joint investigation had existed between the
United States and Oceanian governments and that the latter
had installed malware on Mitrovich’s computer. Because the
district court “could not reject outright the possibility that the
exclusionary rule would require suppression of evidence,” it
ordered the government to produce all responsive discovery
“subject to any targeted objections to the production of spe-
cific material.”

-- 5 of 14 --

6 No. 23-1010
The government responded by producing hundreds of ad-
ditional documents, including email communications about
the unmasking technique between FBI and Oceanian agents,
screenshots showing the technique in action, and a five-page
“Technique Overview” created by New Zealand law
enforcement.
The government also sought more specific details about
the software program. But Australian and New Zealand offi-
cials refused to provide additional information. One former
Australian law enforcement agent shared little more than
“some vagaries” about the program. And a New Zealand of-
ficial stated that domestic law prohibited him from disclosing
any information at all.
Unsatisfied, Mitrovich filed a motion for discovery sanc-
tions. He argued that by not disclosing more detailed infor-
mation about the unmasking technique, the government had
violated its disclosure obligations under Rule 16(a)(1)(E) and
the Supreme Court’s decision in Brady v. Maryland. More spe-
cifically, Mitrovich contended that the newly produced docu-
ments left unanswered whether the unmasking technique
had deployed malware onto his computer, attaching an affi-
davit from a computer forensics expert in support. In his sanc-
tions motion, Mitrovich also claimed for the first time that
malware might have permitted a third party to download
child pornography onto his hard drives—effectively setting
him up.
To be sure, Mitrovich acknowledged that the U.S. govern-
ment lacked access to the technical information he sought.
Still, he insisted that the government be held responsible for
its failure to produce because it necessarily had constructive

-- 6 of 14 --

No. 23-1010 7
possession over the requested information by participating in
a joint international investigation.
The district court declined to issue sanctions. Because the
COVID-19 pandemic prevented a full evidentiary hearing on
the matter, the court assumed without explicitly finding that
Oceanian authorities had deployed the unmasking technique
pursuant to a joint investigation with the United States. Even
so, it determined that the government’s failure to disclose the
requested information violated neither Rule 16 nor Brady. In-
deed, the district court found that the prosecution had already
produced all responsive documents in its possession and con-
cluded that it had “no obligation to turn over materials that it
[did] not have and [could not] obtain through good faith, dil-
igent efforts.”
Mitrovich now appeals the denial of his sanctions motion,
alleging independent violations of Rule 16 and Brady.
II
A
Rule 16(a)(1)(E) of the Federal Rules of Criminal Proce-
dure requires the government to disclose documents within
its “possession, custody, or control” that are “material to pre-
paring the defense.” District courts may enforce this rule
through any “order that is just under the circumstances.” See
Fed. R. Crim. P. 16(d)(2)(D). We review a district court’s deci-
sion whether to impose sanctions for abuse of discretion, re-
versing only if it was unreasonable. See Collins v. Illinois, 554
F.3d 693, 696 (7th Cir. 2009). In doing so, we embrace the fac-
tual findings supporting the district court’s decision unless
they are clearly erroneous. See United States v. Carmack, 100
F.3d 1271, 1276 (7th Cir. 1996) (“Clear error review means that

-- 7 of 14 --

8 No. 23-1010
the district court's decision will not be reversed unless after
reviewing the entire record we are left with a definite and firm
conviction that a mistake has been committed.”).
With admirable candor, Mitrovich again concedes that the
U.S. government does not actually possess the technical infor-
mation he seeks. The district court went further, finding that
the prosecution was unable to access the information. That
conclusion finds firm support in the record.
The government did not succeed in obtaining the technical
information sought by Mitrovich. But not for lack of trying. In
early 2014 FBI agents expressed unfamiliarity with the un-
masking protocol, requesting a more thorough explanation
for how it worked. They repeated their requests in December
2014, asking Oceanian officials for details on the technique
several times without receiving an answer. U.S. officials made
another unsuccessful entreaty during a visit to New Zealand
in March 2016. Four years later, the United States renewed its
overtures again but received little more than a high-level
summary of how the unmasking technique worked.
These diligent but failed efforts permit only one conclu-
sion: the U.S. government lacked the capacity to obtain the
requested information by any reasonable means. On this rec-
ord, we cannot conclude that the information fell within the
government’s “possession, custody, or control,” as required
by Rule 16.
Mitrovich presses a contrary position. In the context of a
joint international investigation, he contends that it is not
enough to simply find that one member did not hold a docu-
ment. We should also ask whether the partners they closely
collaborated with had possession.

-- 8 of 14 --

No. 23-1010 9
Aligned with the district court, we assume without decid-
ing that the United States, New Zealand, and Australia par-
ticipated in a joint international investigation. We also as-
sume—again simply for the sake of resolving this appeal—
that the Oceanian countries deployed the IP-unmasking tech-
nique as part of that investigation. Mitrovich’s Rule 16 claim
fails nonetheless.
Like our sister circuits, we have declined to extend prose-
cutors’ Rule 16 disclosure obligations to information outside
the possession of the federal government. See United States v.
Hamilton, 107 F.3d 499, 509 n.5 (7th Cir. 1997), cert. denied, 521
U.S. 1127 (1997) (explaining that “Rule 16(a)(1)(C) imposes
upon the federal government no duty to obtain documents
that are controlled by the state government or police, even if
the prosecution is aware of the items”); see also United States
v. Marshall, 132 F.3d 63, 68 (D.C. Cir. 1998) (holding the same
for local law enforcement); United States v. Brazel, 102 F.3d
1120, 1150 (11th Cir. 1997), cert. denied, 522 U.S. 822 (same);
Thor v. United States, 574 F.2d 215, 220–21 (5th Cir. 1978)
(same). We reaffirm today that the duty of production im-
posed by Rule 16(a)(1)(E) extends to all qualifying documents
within the “possession, custody, or control” of any compo-
nent of the U.S. federal government—but not beyond.
A contrary ruling would impose an unrealistic burden.
Requiring U.S. prosecutors to produce all material and re-
sponsive documents held by foreign partners would expand
their duty to produce beyond their capacity to obtain. To com-
ply with Rule 16, prosecutors would be compelled to produce
documents that they do not possess, cannot acquire, have not
confirmed exist, and—because Rule 16 is triggered by merely
a preliminary showing of materiality—may not even matter

-- 9 of 14 --

10 No. 23-1010
to the defendant’s case. See Thompson, 944 F.2d at 1341.
Rule 16 imposes no such duty.
B
Mitrovich next renews his separate constitutional chal-
lenge, claiming the government’s nondisclosure violated the
Due Process Clause of the Fifth Amendment. In Brady v. Mar-
yland, the Supreme Court held that due process prohibits the
suppression of material evidence favorable to the accused.
373 U.S. 83, 87 (1963); see also Kyles v. Whitley, 514 U.S. 419,
432–34 (1995). To establish a Brady violation a defendant must
demonstrate that the government suppressed evidence, that
the evidence was either exculpatory or impeaching, and that
prejudice resulted. See United States v. O'Hara, 301 F.3d 563,
569 (7th Cir. 2002); see also Giglio v. United States, 405 U.S. 150,
154 (1972).
As a general rule, prosecutors cannot suppress evidence
they do not possess. See United States v. Romo, 914 F.2d 889,
898–99 (7th Cir. 1990). But, in contrast with applications of
Rule 16, we have recognized a constructive-possession doc-
trine in the Brady context. The government cannot “get
around Brady by keeping itself in ignorance, or compart-
mentalizing information about different aspects of the case.”
Carey v. Duckworth, 738 F.2d 875, 878 (7th Cir. 1984). To the
contrary, “the individual prosecutor has a duty to learn of any
favorable evidence known to the others acting on the govern-
ment's behalf in the case.” Kyles, 514 U.S. at 437. This duty to
disclose favorable evidence, we have explained, “extends be-
yond evidence in [the prosecution’s] immediate possession to
evidence in the possession of other actors assisting the gov-
ernment in its investigation.” United States v. Walker, 746 F.3d
300, 306 (7th Cir. 2014) (citing Fields v. Wharrie, 672 F.3d 505,

-- 10 of 14 --

No. 23-1010 11
513 (7th Cir. 2012)). That includes any state and municipal
agencies that are part of the “‘prosecutorial team’ broadly un-
derstood.” See United States v. Gray, 648 F.3d 562, 566 (7th Cir.
2011) (citations omitted).
Our case law has not addressed whether the principle of
constructive possession under Brady extends to co-partici-
pants in a joint international investigation. In United States v.
Stokes, we established that the Fourth Amendment applies to
searches conducted by foreign governments so long as “U.S.
agents substantially participate[d] in [the] extraterritorial
search of a U.S. citizen and the foreign officials were essen-
tially acting as agents for their American counterparts or the
search amounted to a joint operation between American and
foreign authorities.” 726 F.3d at 890. But we have not decided
whether the due process protections articulated in Brady have
a similar international reach. Nor have we had occasion to de-
termine what degree of U.S.-foreign cooperation—if any—
would be sufficient to give rise to an assumption of construc-
tive possession.
This case presents no such occasion. Again, we accept the
district court’s assumption that Mitrovich’s arrest stemmed
from a joint U.S.-Oceanian investigation. But even if that in-
vestigation—and the level of cooperation it involved—suf-
ficed to trigger a presumption of constructive possession in
theory, the circumstances before us rebut any such presump-
tion in fact. Where, as here, the United States has made dili-
gent, good-faith efforts to obtain information from a foreign
authority and the failure of those efforts establishes that the
United States lacks the capacity to access or acquire that infor-
mation through reasonable means, any presumption that the

-- 11 of 14 --

12 No. 23-1010
government constructively possessed the information as a
member of a joint investigation dissipates.
The district court’s finding on this fact was clear and pre-
cise: “[T]he Government has turned over everything in its
possession relating to the technical details of how the Ocean-
ian authorities identified Mitrovich’s IP address [and] has
been unable to obtain the software and/or source code” that
Mitrovich seeks. This finding that the prosecution lacked the
capacity to obtain requested discovery materials is fatal to any
presumption of constructive possession that might have oth-
erwise applied.
The doctrine of constructive possession developed on the
premise that prosecutors have the means to obtain documents
held by fellow members of an investigatory team because of
the close working relationship they share. When first extend-
ing Brady to documents possessed by federal enforcement
agencies, the Supreme Court in Kyles reasoned that there is no
“serious doubt” that “the prosecutor has the means to dis-
charge the government’s Brady responsibility” by establishing
“procedures and regulations” to ensure the free flow of infor-
mation between investigative entities. See 514 U.S. at 438.
Our case law echoes Kyles’s emphasis on access as an un-
derlying assumption behind constructive possession. See, e.g.,
Crivens v. Roth, 172 F.3d 991, 997 (7th Cir. 1999) (finding that
the government had suppressed information within the
meaning of Brady precisely because “the state in this case had
the information at its disposal”). In keeping with that empha-
sis, we have never held that a prosecutor constructively pos-
sessed Brady material that she was unable to obtain. To the
contrary, we have declined to find constructive possession in
situations where prosecutors lack the capacity to access the

-- 12 of 14 --

No. 23-1010 13
documents at issue. See, e.g., Walker, 746 F.3d at 307 (finding
that federal prosecutors did not constructively possess docu-
ments held by a municipal police department because the
prosecution had no “access to or knowledge of the sup-
pressed evidence”). A definitive showing that prosecutors
cannot obtain discovery materials by any reasonable means
destroys any presumption of constructive possession arising
from their relationship with other investigating parties. This
makes sound sense. The view that the government construc-
tively possesses a document cannot coexist with a finding that
it lacks, and has always lacked, the capacity to access it.
Mitrovich’s Brady claim also fails for another reason. With-
out knowledge of what the requested technical information
would have showed, he cannot demonstrate prejudice. To es-
tablish a Brady violation, “the cumulative effect of all such ev-
idence suppressed by the government” must “raise[] a rea-
sonable probability that its disclosure would have produced
a different result.” Kyles, 514 U.S. at 421–22. That is a hard
standard to meet without any knowledge of the content of the
information in question. See Gray, 648 F.3d at 567 (cautioning
that “[t]he Brady rule is not a rule of pretrial discovery”);
Romo, 914 F.2d at 889 (explaining that the rule “assumes the
discovery, after trial, of favorable, material information” (in-
ternal quotation marks and citation omitted)).
Mitrovich’s attempt to establish prejudice amounts to little
more than speculation. His forensic examiner explained that
without more information, it would be “impossible to prove
exactly how th[e] code” behind the unmasking technique
“was utilized” or “what is specifically transferred to a user’s
computer when their browser follows th[e] link.” Accord-
ingly, all the expert was able to say was that the use of

-- 13 of 14 --

14 No. 23-1010
malware was “conceivable.” This showing does not suffice to
establish prejudice. Under Brady, Mitrovich bears the burden
of demonstrating that the missing documents are not only
necessary but sufficient to establish a “reasonable probabil-
ity” of a different outcome—in this case the suppression of
evidence. Kyles, 514 U.S. at 421–22.
Prejudice cannot be established through guesswork. Our
review of the record provides no reason to infer that the miss-
ing technical information would have supported Mitrovich’s
defense theory. “Mere speculation that a government file may
contain Brady material is not sufficient.” United States v. Mor-
ris, 957 F.2d 1391, 1403 (7th Cir. 1992) (internal quotation
marks and citation omitted).
III
Because the government’s discovery obligations under
Rule 16 do not extend to documents held exclusively by for-
eign members of a joint investigation, because the prosecution
cannot “suppress” documents held by a foreign government
that it cannot access through reasonable means, and because
Mitrovich cannot establish that the government’s nondisclo-
sures resulted in prejudice, we AFFIRM the district court’s de-
nial of Mitrovich’s motion for discovery sanctions.

-- 14 of 14 --