nicholas skvarla child pornography transcript
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United States of America vs. Nichols Skvarla transcript. 8/14/2012TRANSCRIPT
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UNITED STATES DISTRICT COURTWESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA, * Docket No. 09-CR-6147**** Buffalo, New York
v. * August 14, 2012* 1:57 p.m.*
NICHOLAS SKVARLA, **
Defendant. **
* * * * * * * * * * * * * * *
TRANSCRIPT OF NON-JURY TRIAL CONTINUEDBEFORE THE HONORABLE RICHARD J. ARCARA
UNITED STATES CHIEF DISTRICT COURT JUDGE
APPEARANCES:
For the Plaintiff: MARISSA J. MILLER, ESQ. andAARON J. MANGO, ESQ.
For the Defendant: JOHN R. PARRINELLO, ESQ.
Court Reporter: YVONNE M. GARRISON, RPROfficial Court ReporterU.S.D.C., W.D.N.Y.2 Niagara SquareBuffalo, New York 14202716-861-7568
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Proceedings 2
THE CLERK: Criminal Action 2009-6147A, United States
Nicholas Skvarla, continuation of non-jury trial.
Counsel, please state your name and the party you
represent for the record.
MS. MILLER: Marissa Miller for the government.
MR. PARRINELLO: John Parrinello, representing the
defendant Nicholas Skvarla.
THE COURT: Well, Mr. Parrinello, I guess you're up.
MR. PARRINELLO: I'm up, yes, Your Honor. And my
only problem is the witness I intend to call is apparently,
according to Ms. Miller, delayed.
MS. MILLER: Your Honor, I spoke with him
approximately 20 minutes ago, and he said he'd gotten caught up
at the Williamsville tolls, but was past them and expected to
be here.
MR. PARRINELLO: Your Honor, before we leave, can we
take up a scheduling matter --
THE COURT: Sure.
MR. PARRINELLO: -- perhaps?
Obviously we're at the position of the beginning and
presumably the end of the defense case today.
THE COURT: Okay.
MR. PARRINELLO: Which will be followed by a renewal
of the 29 motion and then ultimately a summation.
THE COURT: Okay.
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Proceedings 3
MR. PARRINELLO: And I've told Ms. Miller that I'm
prepared to do the witness today, I'm not prepared to do a
summation today.
THE COURT: Okay. When would you be available for
the summation?
MR. PARRINELLO: Today is the 14th. Is the Court on
trial?
THE COURT: Yeah.
MR. PARRINELLO: I'd probably need a day or two just
to get prepared.
THE COURT: Sure.
MR. PARRINELLO: Can we -- can we do it Monday?
THE COURT: Let's see. How long will your summations
be just so I have an idea?
MR. PARRINELLO: Forty-five minutes.
MS. MILLER: I imagine at the very most, 20 minutes,
Your Honor.
THE COURT: 2:00 on Monday.
MS. MILLER: The 20th.
THE COURT: All right. Let me know when the witness
arrives.
(A recess was taken at 2:05 p.m.)
THE COURT: Mr. Parrinello, are we ready?
MR. PARRINELLO: Yes, Your Honor.
THE COURT: Okay.
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D. Kron - Direct 4
MR. PARRINELLO: The defense calls Deputy Kron as its
witness.
THE CLERK: Please state your full name and spell
your last name for the record.
THE WITNESS: My full name is David Kron, K-R-O-N.
Sworn.
DAVID KRON, SWORN,
THE COURT: All right.
DIRECT EXAMINATION
BY MR. PARRINELLO:
Q. Good afternoon, Deputy.
A. Good afternoon, sir.
How are you?
Q. I'm fine, thank you.
A. Good.
Q. Just to start out with, it's my understanding that you
work for the Monroe County Sheriff's Department for a number of
years; is that correct?
A. Yes, sir, that's correct.
Q. And then there was a period of time that you acted both as
a deputy for the Monroe County Sheriff's Department and as a
task force officer on loan to the FBI?
A. Yes, sir, that's correct.
Q. And I also understand that is -- you no longer are in a
TFO, task force officer, status with the FBI, are you?
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D. Kron - Direct 5
A. That is correct. I am no longer in that status.
Q. And as far as being a deputy with the Monroe County
Sheriff's Department, is -- are you retiring as of today?
A. As of 5 p.m. today, yes.
Q. So this is your last day?
A. This will be my last day.
Q. And it's my understanding that you are taking a position
abroad?
A. That is -- yes, that's my intention.
Q. Okay. Now, with respect to your position with the Monroe
County Sheriff's office, how long -- well, when did you begin
serving as a Monroe County deputy?
A. I began in 1990. I believe it was October of 1990. That
was in a part-time capacity. I was hired full-time early of
1993.
Q. And I understand you had a conversation with Ms. Miller
today and informed her today that there came a time in 1997 --
at least she's made me aware of it and you made her aware of it
today -- that you were formally disciplined for giving an
incomplete answer to a superior officer; is that correct?
A. It was '97 or '98. I don't know exactly which year, but
that's correct.
Q. Okay. Any other disciplinary actions in your capacity --
taken against you in a capacity as a Monroe County sheriff?
A. None, none whatsoever.
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D. Kron - Direct 6
Q. How about as a task force officer with the FBI?
A. No.
Q. Now, did there come a time in January of 2006, that you
had a -- an assignment with the Monroe County Sheriffs office
that you began monitoring the internet?
A. Yes, that is correct.
Q. Now, prior to that time, what, if any, training did you
have with respect to internet surveillance?
A. Well, the position was entitled proactive online
investigations. I was placed in that position January of 2006,
and I received training following my appointment, and that
would have been with the State Police Internet Crimes Against
Children Task Force.
Q. And when did -- was that training -- when did that
training commence?
A. That was approximately -- I don't recall exactly -- March
of 2006, perhaps.
Q. And as far as your internet experience, you were assigned
basically in two capacities, one of them was an enticement
investigator, correct?
A. Yes.
Q. And can you explain to the Judge what an enticement
investigator is?
A. That's not the title we use, but I was assigned to conduct
online investigations of enticement of children. And
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D. Kron - Direct 7
essentially what that boiled down to is I went online and I
would have the persona of a 14-year old child and simply
communicate with others online, and -- and open an
investigation if one of the individuals I communicated with
attempted to meet that child, my persona, for sexual purposes.
Q. Okay. So you were portraying yourself as other than a
deputy for the purposes of inducing people to make contact with
you for sexual purposes, underage people?
A. I don't understand the question.
Q. Okay. As far as the enticement investigative portion?
A. Yes, sir.
Q. You would get online and you would portray yourself as an
underage individual, correct?
A. That is correct, yes.
Q. Male or female, or both?
A. More often than not female.
Q. And of course what you were doing on the internet was not
true, right?
A. I was not an underage female, if that's what you're
asking.
Q. Right.
A. Yes, sir.
Q. And you were also engaged in a peer-to-peer -- in a
peer-to-peer investigative role, correct?
A. That came at a later point in that assignment, but yes.
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D. Kron - Direct 8
Q. And but these two assignments took place after the
beginning of January, 2006, am I right?
A. There weren't two assignments, sir, if I may clear it up.
Q. Sure.
A. I was assigned for the purpose exclusively of, as you put
it, portraying an underage child on the internet. The
assignment involved two other forms of investigations, I would
say, approximately mid 2007, to include file sharing of
peer-to-peer investigations.
Q. And that assignment was mid 2007?
A. It was the same assignment, but the duties evolved to that
approximately mid 2007, yes.
Q. So safe to say that you were engaged in computer crime
investigations, that is investigating computer crimes by
proactive participation or investigation, is that -- is that
accurate?
A. That is accurate, yes, sir.
Q. And with respect to the peer-to-peer is it -- what -- is
it fair to say that you went online -- well, let me back up a
moment.
Were you the only Monroe County Sheriff deputy assigned to
these tasks?
A. Yes.
Q. During that period of time, 2006 to, say, March 13th of
2008?
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D. Kron - Direct 9
A. Yes, I was the only person assigned to online
investigations, yes, sir.
Q. And -- and how many -- during that period of time, what
was your work schedule?
A. Typically when I began it was 2 in the afternoon until
10 p.m. at night.
Q. How many days a week?
A. Five days a week, Monday through Friday.
Q. And so it's safe to say that Saturday and Sunday, as far
as the sheriffs department was concerned, that there was no
Monroe County Sheriff's deputy involved in computer crime
investigations, correct?
A. With a few exceptions where I would come in on the
weekends, that is correct.
Q. Okay. And with respect to your peer-to-peer
investigations, you would go online and you would look for
people committing crimes using the internet; is that right?
A. It's very broad, but yes.
Q. And, sir, with respect to that portion of your duties, did
you understand what the internet was?
A. Yes, yes, I did.
Q. What was the internet?
A. Again, that's a very broad question.
Specifically, what do you mean? What functionality do you
mean? What are you referring to, sir?
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D. Kron - Direct 10
Q. Well, what is the internet? Can you tell the Judge what
the internet is?
A. The internet is a network, a worldwide network at this
point that enables computers all over the world to communicate
through a number of protocols.
Q. Does it have a source from which it emanates?
A. There is no main source.
Q. Okay. When you say "no main source", is there a secondary
source from which the internet operates?
A. There are -- there are services that allow the internet to
function, internet service providers. These computers
themselves are all over the world, privately owned, publicly
owned. It essentially is just on its own, with the exception
of assistance from internet service providers and other
networks.
Q. Does any identifiable company operate the internet?
A. As a whole, no, sir.
Q. Does -- is there any identifiable company which controls
what is carried on the internet?
A. Again, that's very general.
You mean in this country or worldwide?
Q. Anywhere.
A. I imagine --
THE COURT REPORTER: Excuse me. Can you repeat that,
please?
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D. Kron - Direct 11
THE WITNESS: Can you repeat the question?
BY MR. PARRINELLO:
Q. Yes, sir. Is there any individual that controls the
internet itself?
A. There is not, not to my knowledge.
Q. Do you know when the internet came into being?
A. It originated, I believe, in the '50s for military
purposes. The basic principles we had.
Q. And where did you learn that?
A. Probably the internet.
Q. You learned it came into existence -- the internet came
into existence in the '50s, and you learned that from the
internet?
A. The technology into existence. It was -- it was developed
for military purposes, and I believe that was in the '50s.
That is my belief.
Q. And -- I'm sorry.
Did you take any -- by the way, how far did you go in
school?
A. I -- I went to Monroe Community College. I did not
complete it. I was there at -- I have about 70 college
credits.
Q. So you went through high school and then to Monroe
Community College in Rochester, New York --
A. Yes, sir, that's correct.
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D. Kron - Direct 12
Q. -- but didn't complete the curriculum, right?
A. That is correct.
Q. What curriculum were you in when you were in Monroe
Community College?
A. Criminal justice.
Q. Criminal justice?
A. Yes.
Q. And then any portion of that training or that course study
involve the internet?
A. Not to my recollection, no.
Q. Then after the Monroe Community College experience, did
you then become a Monroe County Sheriff's deputy?
A. Yes, yes, sir.
Q. And did -- you said that you went just for training
concerning the internet?
A. I had been at training, yes.
Q. Where was that?
A. I had been in multiple locations.
Q. Well, let me put it this way: Between 2006, and the end
of, say, July of 2008 --
A. Okay.
Q. -- where did you attend any formal training regarding the
internet?
A. I attended training through the Internet Crimes Against
Children Task Force that is a state police organization
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D. Kron - Direct 13
specializing in exploitation of children.
Q. How long did that course last?
A. It was -- I believe there were a couple courses that
lasted a few days a piece.
Q. A few days a piece?
A. Yes.
Q. So from January, 2006, until July, 2009, would you say
that your total experience regarding the internet was six days?
A. I believe it was probably more than that. I don't recall
exactly.
Q. You don't recall?
A. No, sir.
Q. Okay. Now, on March 13th, 2008, were you online that day
investigating peer-to-peer -- doing a peer-to-peer
investigation?
A. Yes, sir, I believe I was.
Q. And a peer-to-peer investigation, the shorthand for it is
P-2-P, right?
A. Yes, it's often referred to that way.
Q. Pardon?
A. Yes, sir.
Q. Now, a P-2-P or peer-to-peer network, do you know what
that is?
A. Yes, sir, I do.
Q. And is that a -- where multiple users all over the world
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D. Kron - Direct 14
download a piece of software that enables them to share any
type of computer files?
A. Yes, yes, I believe it is.
Q. Now, there are certain programs associated with
peer-to-peer investigations, correct?
A. There is several, yes.
Q. Okay. And would I be correct -- is LimeWire one of them?
A. A version of -- a version of LimeWire is available for
peer-to-peer investigations, yes.
Q. How about BearShare, B-E-A-R, Share?
A. To my knowledge, nobody uses BearShare for investigations.
Q. Well, is that a program associated with peer-to-peer
investigations?
A. It's a program publically available. No investigator, to
my knowledge, uses that software.
Q. Did you use that software?
A. BearShare, no, sir.
Q. Okay. How about Shareaza?
A. What is the question about Shareaza?
Q. Is that a program associated with peer-to-peer
investigations?
A. It's a -- yes.
THE COURT: What's that called?
MR. PARRINELLO: Shareaza, S-H-E-R-E-A-Z-A (sic).
THE COURT: Okay.
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D. Kron - Direct 15
BY MR. PARRINELLO:
Q. Am I pronouncing it correct?
A. I always pronounce it Shareaza.
THE COURT: What does that word mean?
THE WITNESS: It's just a name given by the
developers to the software.
THE COURT: Okay.
THE WITNESS: I don't know that it has meaning, sir.
BY MR. PARRINELLO:
Q. Now, did you use Shareaza in your peer-to-peer
investigations from, say, 2007, to March 13th, 2008?
A. I'm a little confused on what you mean by used it.
Did I use it on my computer in my office; is that what
you're asking me?
Q. To conduct peer-to-peer investigations.
A. No, sir, never used Shareaza.
Q. How about FrostWire?
A. I have never used that on my computer for investigations.
Q. But that is a program associated with peer-to-peer
investigations; isn't it?
A. It can be, yes.
Q. But you didn't use it?
A. No, sir.
Q. How about Morpheus? Did you use a software program
associated with peer-to-peer investigations called Morpheus?
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D. Kron - Direct 16
A. I have not used Morpheus in these investigations.
Q. Are there any others that I haven't mentioned, any other
software programs that are existing in that period of time from
2007, when you began the peer-to-peer investigations, to March,
13th, 2008?
A. Yes. There's Kazaa, K-A-Z-A-A; there's Phex, that's
P-H-E-X; and I can't think of any others at this time.
Q. And in your peer-to-peer investigations that you
conducted, what software did you use?
A. I used a version of LimeWire.
Q. A version?
A. That's correct.
Q. How many versions of LimeWire were there in that period of
time for you to choose from?
A. For me to choose from there was only -- well, by version
each software as it's upgraded, developed and approved becomes
a version, a new version.
Q. All right.
A. Not to be confused with the version I use. This version
was created for law enforcement purposes. So I don't want to
confuse the version with the average -- the common man
definition of version.
Q. So when you said you used a version of LimeWire in your
peer-to-peer computer investigations, you were using the
version that was specifically created for law enforcement
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D. Kron - Direct 17
purposes?
A. Yes, sir, I was.
MR. PARRINELLO: Excuse me.
BY MR. PARRINELLO:
Q. Now, on March 13th, 2008, did you log onto the Gnutella
network using search terms consistent with child pornography
images and videos?
A. Yes, sir, I did.
Q. And in other words, you were conducting searches on the
Gnutella network, correct?
A. That is correct, yes.
Q. What is a Gnutella network?
A. Gnutella network is the name given to a network commonly
used for peer-to-peer, also referred to as a protocol.
Q. As what?
A. As a protocol.
Q. Protocol?
A. Yes, sir.
Q. And Gnutella is G-N-U-T-E-L-L-A.
Now, where did you learn to use the Gnutella network?
A. Can you repeat or rephrase the question? Gnutella network
or the software we were just discussing?
Q. No. You said that on March 13th, 2008, that you logged
onto the Gnutella network.
THE COURT: How do you spell that?
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D. Kron - Direct 18
MR. PARRINELLO: G-N-U-T-E-L-L-A.
BY MR. PARRINELLO:
Q. Correct?
A. Yes, that's correct.
Q. And how did you know to log onto that network?
A. Well, that network is the only network available to the
LimeWire version I was using. So it automatically logs onto
that network. And I didn't -- I don't select a network by
choice when using the software.
Q. And the Gnutella network is part of the internet?
A. You know, it's -- it uses the internet for communication,
yes.
Q. It does?
A. Yes.
Q. So this -- logging onto Gnutella was not your choice, but
it was because you were using a certain -- a version of
LimeWire which automatically connected you to the Gnutella
network; is that what you're saying?
A. Correct. Gnutella was a commonly used network for
peer-to-peer software. The software I was using, the
peer-to-peer software I was using, utilizes the Gnutella
network.
So it was an unconscious decision that morning to use the
Gnutella network. It was simply the software I use utilizes
that.
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D. Kron - Direct 19
Q. You said that morning. I thought you work from 2 to 10?
A. You know, I still get up in the morning, sir.
Q. We all hopefully do, yes.
A. Correct.
Q. Now, my point is you said that morning. Were you -- were
you working -- did you log onto the Gnutella network using
LimeWire the morning of March 13th, 2008?
A. I don't recall the time. My point being I didn't wake up
that day -- I didn't get up that day and make a conscious
decision to log onto the Gnutella network. I simply used the
software available to me which so happens to utilize the
Gnutella network.
So I'm saying it wasn't -- I didn't have a choice of the
networks to chose from. That network works with the software
that I use to firm my investigations.
Q. And that was per the protocol, correct?
A. The Gnutella network is a protocol.
Q. Is a protocol?
A. Yes.
Q. Yes. And so what you do is you used that network,
Gnutella, to introduce search terms which were consistent with
child pornography images and videos; is that correct?
A. Yes, it is.
Q. Can you tell the Judge how you do that? How did you
physically -- in other words, you turning your computer on;
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D. Kron - Direct 20
you're on LimeWire. So how do you do it? How do you --
A. Well, assuming my computer is already on, I would double
click the LimeWire icon which would open the GUI or the user
interface for the software.
At that point I would tell the software to connect to the
Gnutella network. At which point it would go out and connect
to ultrapeers. Ultrapeers handled the searches.
Q. And do you remember on March 13th, 2008, when you
connected with the Gnutella network what search term you
introduced that was consistent with child porn images and
video?
A. I don't recall specifically which term I used.
Q. Okay. One of the terms would be P-T-H-C, correct?
A. That's one I frequently, use, yes.
Q. And can you tell the Judge what that means?
A. Yeah, that's an acronym for preteen hardcore.
Q. Preteen hardcore?
A. Yes, sir.
Q. Would you use 12-year old?
A. 12 YO was something that I would use, yes.
Q. Okay. And just specifically, you just don't remember on
March 13th, 2008, what search term you used to conduct your
investigation, correct?
A. I don't recall.
Q. Okay.
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D. Kron - Direct 21
A. I'm quite certain it's documented, but I don't have that
documentation in front of me.
Q. I understand. So you type in the search term, correct?
A. In this case, the search terms that are already inputted.
I'm able to create a list of search terms that I frequently
use, and there is a button basically within the software that
automatically uses those search terms. So it's a timesaver.
Q. So they're predesignated search terms in LimeWire that you
had previously created?
A. Designated by me, but, yes.
Q. Designated by you?
A. Yes.
Q. Okay. And where did you learn how to use search terms?
A. At that point I had -- I had received training from
individuals with the FBI in Buffalo, as well as some online
training on how to use. And additionally as I conducted these
investigations you learn --
Q. Okay.
A. -- you learn what terms are associated with the files of
interest per se.
Q. And the purpose of typing in the search terms is to
retrieve results from the Gnutella network, correct?
A. Yes, that's correct.
Q. Now, the results of your introducing the search terms into
LimeWire onto the Gnutella network, the results, positive
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D. Kron - Direct 22
results, that is -- that is responses to these search terms,
could come to you from anywhere in the world, correct?
A. Correct, yes.
Q. Now, you couldn't tell specifically exactly where they
were coming from, could you?
A. How specific are you referring? City? State?
Q. Well, if you put -- let's try an example.
If you put 12 YO in and you got a hit?
A. Okay.
Q. Could you tell where it was coming from?
A. I could tell at that point the city and state within
20 miles with 85 percent accuracy.
THE COURT: What's 12 YO?
THE WITNESS: 12 YO is an abbreviation for 12 years
old. It's a term commonly seen in child pornography
investigations.
THE COURT: Okay.
BY MR. PARRINELLO:
Q. Okay. I just want to retreat to write it down.
You could tell the city and the state?
A. Yes, sir.
Q. Okay. Within what?
A. If I recall correctly, it is within 20 miles of a city and
state. That being the -- the file or the result, as you put
it, with 85 percent accuracy. Thus, giving me the ability to
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D. Kron - Direct 23
approximate the location.
Q. And you used 85 percent. So there is 15 percent room for
error, correct?
A. At that point in the investigation, yes, sir.
Q. Okay. And within 20 miles of a city and state, that could
affect the state from which it was coming, correct, that
milage?
A. It could traverse state lines, if that's what you're
referring to.
Q. Well, it could or it couldn't, correct?
A. Correct.
Q. Like Erie, Pennsylvania could really -- if 20 miles you
could be in New York State, right?
A. Yes.
Q. Okay. And in what you did is -- is on March 13th, 2008,
when you were doing your P-2-P investigation, you had several
hits, correct?
Am I right -- is hits the right word?
A. What are you referring to, responses based on the key
word?
Q. Yeah.
A. Yes, I nearly always get several hits or responses.
Q. Okay. And that day you specifically reviewed the results
of your search to locations near Rochester, New York, didn't
you?
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D. Kron - Direct 24
A. Yes, I would have.
Q. In other words, what you were interested in would be among
the responses you got, and because you were a Monroe County
Sheriff's deputy in the State of New York, you were most
interested in the results of that search that were in or near
the City of Rochester, New York, correct?
A. Well, correct, in or near the County of Monroe, I think
would be more accurate.
Q. Okay. Okay. And was that for jurisdictional reasons?
A. It was, and for operational reasons.
Q. When you say "operational reasons", that means a follow-up
to the results so that you could potentially locate where the
hit had come from to get an IP address that would lead to a
search warrant that would lead to a search of the -- of the
location from which the hit came from, correct?
A. I'm not sure I understand all that. However, you know,
further away it was the location we were looking at
geographically the more difficult, of course, it is for us to
investigate just due to the distance.
THE COURT: Where it came from or where it went to?
THE WITNESS: Where we would be responding to to --
to investigate the suspicious -- the files of child pornography
or believed child pornography or videos, that sort of thing.
For example, we wouldn't investigate a case that came
out of Miami, Florida because my boss wouldn't approve us all
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D. Kron - Direct 25
driving to Miami, Florida. So the further away it is, the more
difficult it became for us.
BY MR. PARRINELLO:
Q. How about Connecticut?
A. In all likelihood, no.
Q. How about Pennsylvania?
A. We have done investigations in Northern Pennsylvania, yes.
Q. In that time period -- so you would have to get -- in
terms of results that you got, using the methodology you
described, LimeWire, to Gnutella, using the search term in the
hits or results you got, you would sort them out in -- as far
as locations, correct?
A. I was primarily interested in locations in and around
Monroe County.
Q. Monroe County?
A. Correct.
Q. Okay. One of the things that you did is in this process,
is you could ID what they'd call an IP address of the person or
persons offering the file for copying purposes, correct?
A. I'm sorry. You're going to -- you're going to have to
repeat that for me.
Q. Okay. Sure. Sure. When you're getting the results --
A. Yes, sir.
Q. And let's limit it to Monroe County.
A. Okay.
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D. Kron - Direct 26
Q. Because that's what your concentration was about?
A. Right.
Q. The thing that you would get, you wouldn't get a name and
address, would you?
A. No, sir.
Q. What you would get as a result would be what they call an
IP address, correct?
A. That is correct.
Q. Okay. And that IP address would be connected to a
location offering the file, correct?
A. That is correct, yes.
Q. And on March 13th, 2008, as you were conducting your
investigation, you identified files being shared by IP address
74.34.196.66, correct?
A. I can't say for sure without reviewing my report if that
is the correct IP. It sounds correct.
Q. Okay. And with that information alone, you could not tell
where the -- where the address was that was offering the files
for coping?
A. The physical address?
Q. Yes.
A. The numerical address, no, sir, we couldn't make that
point.
Q. Or the name or persons that was associated with that IP?
A. That's correct, we could not.
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D. Kron - Direct 27
Q. Okay. On that day and associated with that IP address,
there were numerous files that had search terms with -- I'm
sorry -- there were numerous files with search terms that were
consistent with child pornography, correct?
A. Correct.
Q. And did you download those files?
A. I downloaded some of the files, as I recall.
Q. And from viewing the downloaded -- or from viewing the
internet or the downloaded files, you made some determination
that some of the files that emanated from that IP address, that
74 IP address, were videos of children under 17 engaged in
sexual acts, correct?
A. Correct.
Q. Now, what standard did you use in making a determination
that what appeared on the downloaded files on March 13th, 2008,
from that IP address --
A. Okay.
Q. -- were indeed under the age of 17?
What did you use?
A. Just by visually inspecting those files, watching the
videos, looking at the pictures, and seeing if they appeared,
to me, to be under 17 years of age, and engaged in sexual acts.
Q. Was it clear that they were engaging in sexual acts?
A. I don't recall the specific files on that date, but I
would not have continued my investigation had they not. So
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D. Kron - Direct 28
clearly there was something there that made me believe that,
yes.
Q. Okay. But you had no formal training -- I don't even know
the name of the term -- but you had no formal training with
respect to determining the age of somebody around the age of
17, did you?
A. No, I had no formal training.
Q. And with respect to these downloaded files on March 13th,
2008, did you -- did you share that information -- the
downloaded images, did you share that with anybody else asking
any professional opinion concerning the ages or age of the
children -- strike that -- age or ages of the individuals
engaging in sexual acts?
A. No, I don't believe I would have. I would have not done
that, no.
Q. Okay. Now, at that stage before going any further, other
than determining that the images came from the -- the territory
area, area of Monroe County, could you tell whether or not any
of those images had crossed state lines?
A. I don't understand the question. Could I tell if --
Q. Just by looking at the picture.
A. At which point? You mean during my download?
Q. Yeah.
A. Or at any point in time?
Q. During your download.
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D. Kron - Direct 29
A. No, and it's my belief that they would not have crossed
state lines.
Q. The ones that you downloaded?
A. The ones I downloaded, right.
Q. And are you as certain as the statement you made it was
your belief that they did not cross state lines, that is the
images you downloaded?
A. Okay.
Q. Are you of the same firm belief that they had not crossed
international boundaries?
A. During my download?
Q. Yes.
A. As they were downloaded from the IP address you just
mentioned to me, I have no reason to believe they crossed
international boundaries.
Q. Now, once you -- on March 13th, 2008, once you downloaded
the images, through the process you've described, there is a
protocol or methodology to identify the actual address from
which those downloaded images came, correct?
A. That is correct, yes, sir.
Q. Okay. And correct me if I'm wrong, is once you have the
IP address, you then put that IP address into ARIN or MaxMind,
correct?
A. That's correct.
Q. And ARIN is an acronym for American Registry for Internet
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D. Kron - Direct 30
Numbers, correct?
A. Yes, sir.
Q. Now, and MaxMind ID'd the city and state of the IP
address, correct?
A. Yes.
Q. And by putting that IP -- by putting that IP address into
ARIN, did you do that on March 13th, 2008?
A. I don't recall. I will -- I will sometimes use ARIN or
sometimes use MaxMind. There are times that I would use both.
Q. Okay. But on March 13th, 2008, it's safe to say you used
one or the other, or both, with respect to the IP address
74.34.196.66, correct?
A. That's correct.
Q. And the purpose of doing that -- am I correct, the purpose
of putting that IP address into one of the those web sites was
to find out which internet service provider was handling that
IP address, correct?
A. Yes, which internet service provider essentially leased or
owned that IP address.
Q. And when IP 74.34.196.66 was put into ARIN, you discovered
that the internet service provider handling that IP address was
Frontier Communications, correct?
A. Correct. And I'm assuming that the IP address you're
giving me is what's reflected in my report.
Q. Yes, sir.
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D. Kron - Direct 31
A. Okay. Then, yes, that's correct.
Q. I can assure you I'm not misrepresenting you.
A. Okay. I appreciate that.
Q. The address. And I took that exactly from your report.
A. Thank you.
Q. Okay.
MS. MILLER: Your Honor, just to clarify the record
here so that Mr. Parrinello is not testifying, perhaps we could
refresh the witness's recollection with his report.
MR. PARRINELLO: Oh, sure. Absolutely.
THE COURT: We'll take a five-minute recess.
(A recess was taken at 3:00 p.m.)
BY MR. PARRINELLO:
Q. Still, Deputy Kron, I have marked as Defense Exhibit 1 --
did I put a 1 there?
A. You did not.
Q. I'm sorry. Defense Exhibit 1, at the request of
Ms. Miller, in front of you. Can you tell the Judge what that
is?
A. Yes, sir. This is a -- a copy of my original crime report
that was completed during the course of this investigation.
Q. And one of the issues that's come up is the accuracy of
the IP address that I've been using. Would you look at that
document, sir, and if you want I'll read off the IP address
I've been using, and read it to yourself, and then let us know
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D. Kron - Direct 32
whether or not that document refreshes your recollection that
the IP address that I have been using is accurate in terms of
the IP address that you obtained during your downloading
process on March 13th, 2008? The number I've been using is: IP
74.34.196.66. Would you look at the document? Now, does that
refresh your recollection?
A. Yes, that is the correct IP address.
Q. Thank you.
You could just set that aside.
And I believe we're at the stage of by using ARIN or
MaxMind, and inputting the IP address that we've just referred
to, that you determined Frontier was the internet service
provider for that IP address, correct?
A. Correct.
Q. And the next process, and I'm talking about process, is
that you would obtain -- based upon your receipt of images from
that IP address, and knowing that Frontier was the service
provider, to obtain a subpoena that would be served on Frontier
in order to obtain the name and address of the subscriber to
that IP address, am I correct?
A. You are correct, yes.
Q. And the other thing, just in an abundance of caution,
which you did in this case, once you found out the name and
address of the person who was the subscriber to that IP
address, you would then double-check that with the DMV records,
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D. Kron - Direct 33
correct?
A. Of the -- DMV records certainly don't reflect anything
internet-related, so I'm trying to understand what the question
just was.
Q. Well, could confirm that that person's name and address is
correct?
A. Yes, we would -- we would --
Q. Not we, sir; you?
A. Well, yes. When I say "we", I mean generally speaking.
But, yes, I would check DMV records, among other records, to
determine that the name of the subscriber corresponded with
other public records.
Q. And the next step would be to use the National Center For
Missing and Exploited Children to run an Accurint, a data
manning company, correct?
A. Accurint, yes.
Q. A-C-C-U -- is it R or V?
A. R-I-N-T.
Q. R-I-N-T. Okay.
And did you do that?
A. Yes, I believe I did.
Q. Okay. And once that was done, then what you would do is,
based upon the information you had gathered, the name and
address, you would then apply, fill out an application for a
search warrant to search the premises that -- that Frontier had
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D. Kron - Direct 34
supplied, right?
A. Correct, yes.
Q. Now, on March 13th, 2008, did you go through -- following
that date, did you go through all those steps which led you to
obtain a search warrant for the -- for Nick Skvarla, 165
Forgham, F-O-R-G-H-A-M, Road, Rochester, New York?
A. Yes, yes, I did.
Q. And that search warrant that you -- your application that
you made was September 10th, 2008; is that right?
A. I believe so, yes, sir. I believe it was September, 2008.
Q. That's approximately six months after you had acquired the
images from Mr. Skvarla's computer on March 13th, 2008, wasn't
it?
A. That is approximately six months, yes.
Q. And you executed -- that search warrant was executed on
September 11th, 2008, wasn't it?
A. Yes, it was.
Q. And Mr. Skvarla was arrested on September 11th, 2008,
correct?
A. Yes, sir.
Q. What took so long?
MS. MILLER: Objection, Your Honor. Relevance.
THE COURT: Overruled.
THE WITNESS: A number of things. I have caseload.
I have other assignments.
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D. Kron - Direct 35
BY MR. PARRINELLO:
Q. What were your other assignments during that period?
A. I don't recall, sir. This is four and a half years ago.
I don't recall specifically but I have one case at a time. I
have other duties for starters.
Additionally, as I recall, some of the paperwork that was
in the subpoena that was submitted was returned with erroneous
information and had to be resubmitted.
Q. But that was in September, wasn't it?
A. What was in September?
Q. The erroneous address that you executed the initial search
warrant on was in September of 2008?
A. I don't recall. That was another case entirely. I don't
recall.
Q. Okay. But what you did is after March 13th, 2008 --
A. Um-hum.
Q. -- you did not expedite that process in order to identify
Mr. Skvarla's address and execute a search warrant and seize
his hardware, computer hard drive, DVDs; what you did is
instead of expediting that process because you were convinced
on March 13th, 2008, that -- that from Mr. Skvarla's address
that's where the images that you received on March 13th, 2008,
had come from, correct?
A. I didn't know where they came from on March 13th, 2008. I
knew they were in the City of Rochester within 20 miles with
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D. Kron - Direct 36
85 percent accuracy. Until I received a subpoena I had no idea
Mr. Skvarla or his address was involved.
Q. And that took six months?
A. A lot of things took six months. I had a caseload. As I
recall, Mr. Skvarla was getting married and that posed some
problems because his family was coming into town. So that also
was an issue. That actually stalled us perhaps a couple weeks.
I don't recall exactly.
Q. And was that because you didn't want to embarrass him?
A. No, because he had posted online where his family was
staying. They were coming into town. And it would have
created -- it could have created quite a circus if the whole
family was in town for a wedding.
Q. So I see.
A. So we were trying to be considerate actually to the
timing.
Q. So you weren't worried about whether or not he was
continuing to download child pornography to his computer, were
you?
A. At any given time I may have five to ten individuals IP
addresses downloading child pornography. None takes the
precedence over the other. I do the best I can. As we said
earlier, I'm one guy doing it.
Q. I see. So there was a lack of manpower that backed you up
in terms of expediting this process regarding Mr. Skvarla,
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D. Kron - Direct 37
right?
A. Had there been more manpower, we may have been able to
expedite, sure.
Q. Did you request it?
A. Request more manpower?
Q. Yeah.
A. No, I didn't.
Q. Okay. Now, you did the same thing on April 4th, 2008, as
you did on March 13th, 2008, correct?
A. Which same thing is that, sir?
Q. That is to put the search word in, the search words and to
receive images in -- at that IP address.
A. Yes, I did another session, as we might call it, download
session on that day.
Q. That was April 4th, 2008, right?
A. I believe so.
Q. You did another session on May 7th, 2008, correct?
A. I believe so.
Q. You did another session on July 8, 2008, correct?
A. I believe so.
Q. You did another session on July 10th, 2008, didn't you?
A. How many does that make, sir?
THE COURT: What do you mean by session?
THE WITNESS: Session -- I'm sorry.
Who are you asking, sir?
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D. Kron - Direct 38
THE COURT: He's asked the question.
MR. PARRINELLO: That is to, Your Honor, what I've
described so far is that the deputy would go online using a
version of LimeWire and log onto the Gnutella network using
search terms and -- with like 12 YO, 9 YO?
THE COURT: Right.
MR. PARRINELLO: PHTC (sic).
THE COURT: This would all be called a session.
MR. PARRINELLO: He repeated that each time on these
various dates.
THE COURT: Okay. I understand that. I just
didn't -- the word session.
MR. PARRINELLO: I misspoke. It was -- he repeated
the same process.
THE COURT: Okay. Session means process or whatever.
MR. PARRINELLO: Yes, sir.
THE COURT: Okay.
MR. PARRINELLO: That we've already covered.
BY MR. PARRINELLO:
Q. Without going over it each day, but it was March 13th,
2008; April 4th, the second time, 2008; third time was May 7th,
2008; the fourth time was July 8th, 2008; and the last time was
July 10th, 2008, correct?
A. I believe so.
Q. And so would it be safe to say as far as the IP address
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D. Kron - Direct 39
that we've been speaking of that you've confirmed, that you
were conducting an investigation for prosecution to be brought
in Monroe County, New York, from March 13th, 2008, through
July 10th, 2008, utilizing the process we've talked about; is
that a fair statement?
A. Yes, I would say that's a fair statement.
Q. And you understood what I said that you were doing that,
conducting that investigation --
A. Um-hum.
Q. -- for a prosecution of Mr. Skvarla to be brought in
Monroe County, New York, correct?
A. Correct.
Q. Not by the federal government, but by the state
government, correct?
A. That would be correct, yes.
THE COURT: Were you aware what the federal
government was doing at the time?
THE WITNESS: I'm sorry, sir?
THE COURT: Were you aware what the FBI was doing at
this point, as far as your investigation?
THE WITNESS: At the time I was not affiliated with
the FBI.
THE COURT: Okay. So you had no idea they were doing
the same thing you were doing -- well, similar --
THE WITNESS: Yeah. Similar types of investigations
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D. Kron - Direct 40
I was aware they were doing that, yes, sir.
BY MR. PARRINELLO:
Q. The FBI never got into the Skvarla case until much later
when you turned over the results of the search to Special Agent
Meyers; isn't that right?
A. I would say that's correct. They were not involved at
that time.
Q. In the Skvarla matter?
A. That's correct.
MS. MILLER: Objection, Your Honor. Just to clarify
the federal agents that we're talking about here that became
involved.
MR. PARRINELLO: ICE.
THE COURT: I'm sorry. ICE.
MR. PARRINELLO: ICE. We're getting to that, Your
Honor, in a moment.
BY MR. PARRINELLO:
Q. On March 14th, the day after the first download reaction
from Skvarla computer, you went to the DA's office and informed
them you had a child pornography hit in the Rochester area,
correct?
MS. MILLER: Objection, Your Honor. Relevance.
THE COURT: Overruled.
THE WITNESS: I did go to the district attorney's
office and obtain a subpoena.
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D. Kron - Direct 41
BY MR. PARRINELLO:
Q. No, I'm not talking about that.
A. Okay. I'm not sure what you're asking me then.
Q. Okay. On March 14th, 2008 --
A. Okay.
Q. -- you went to the DA's office and you first informed them
that you had a child pornography hit in the Rochester area,
correct?
A. I don't recall contacting the DA's office and informing
them of that.
Q. Perhaps if you look at your report.
A. That would be great. Which page? Do you have a page
number?
Q. No, I think they're the March 14th, 2008, as designated in
your report --
A. Okay.
Q. -- in terms of what you did.
A. There is no reference here to March 14th, 2008.
Q. Okay. You got the Skvarla address in July, 2008, correct?
A. I don't recall when the subpoena came back.
Q. The subpoena came back in September, 2008, but you had the
address in July of 2008, correct?
A. I would not have the address until the subpoena came back
indicating the address. I don't recall which date which
occurred, but I can tell you I wouldn't have the address absent
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D. Kron - Direct 42
a subpoena.
Q. Sir, the Defense Exhibit 1, that is your report?
A. This is a copy of my report, yes, sir.
Q. Okay. And on July 10th, on the third page under
7/10/08 --
A. Okay.
Q. -- did you -- did you fax subpoenas to the district
attorney's office to be served on Frontier for the dates
March 13th, April 4th, May 7th, July 8th, and July 10th, five
subpoenas?
A. No, I faxed the subpoena directly to Frontier that were
issued to me by the district attorney's office; and yes, the
subpoenas did cover those five dates.
Q. Okay. And subsequently the -- you got subscriber
information as a result of those subpoenas that the address
came back, that IP address from the serve provider, as Nick
Skvarla, 165 Forgham Road, Rochester, New York?
A. Correct.
Q. Okay. And that was in July of 2008, right?
A. Yes, sir.
Q. Now, you waited until September of 2008, to apply for a
search warrant, correct?
A. May I refer to this in my report?
Q. Sure. You can refresh your recollection.
On page 3, 9/10/2008.
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D. Kron - Direct 43
A. Yes, I --
Q. Does that refresh your recollection?
A. On 9/10/2008, I did obtain a search warrant, yes.
Q. And so at least two months had passed before you even
attempted to get a search warrant after you had Skvarla's name
and address, correct?
A. Correct.
Q. And the very next day is when you and others from the
Monroe County Sheriff's Department executed the search warrant?
A. Yes.
Q. Were there any FBI agents involved in the search?
A. No, none.
Q. Any ICE agents?
A. No, none.
Q. Any federal agents at all?
A. No, there weren't.
Q. And when you arrested the -- Mr. Skvarla, you took him --
you didn't take him to federal court, did you?
A. No, sir.
Q. You took him to the Gates Town Court, and Gates Town Court
is in Gates, New York in Monroe County, New York, correct?
A. I don't believe I took him anywhere.
Q. Do you -- do you know that he was taken to Gates for
arraignment?
A. I don't recall where he was taken. If I -- if I recall
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D. Kron - Direct 44
correctly, they were Town of Chili charges. It's possible a
Gates judge did an arraignment because it is an adjoining town.
I was not with Mr. Skvarla at that time, so I don't know where
he was arraigned.
Q. And at least we have established that he was not taken to
any federal court?
A. No, not to my knowledge.
Q. In September, right?
A. That's correct.
Q. And no federal authorities were involved with respect to
the investigation and identification and the search warrant --
subpoenas and the search warrant regarding Mr. Skvarla up to
September 11th, 2008, correct?
A. Correct, no federal authorities were involved.
Q. Okay. And on September 15th of 2008, after he --
Mr. Skvarla had been arrested?
A. Okay.
Q. Taken to a local town court, bail set, and he taken to
Monroe County Jail, correct?
A. Correct.
Q. Approximately four days later, there was a meeting at
about 2:30 in the afternoon on September 15th, 2008, where
members of the Monroe County Sheriff's Department, you
included, met with members of Monroe County District Attorney's
office and the United States Attorney's office, and also
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D. Kron - Direct 45
present was Special Agent Matt Meyer of ICE. That meeting was
held at the Monroe County Sheriff's office, and it was decided
at that time that the case would be referred to ICE for further
investigation, correct?
MS. MILLER: Objection.
THE WITNESS: I have no --
MS. MILLER: At this point it feels as though counsel
is both leading and testifying while on direct. Perhaps the
agent could testify.
THE COURT: Overruled.
BY MR. PARRINELLO:
Q. Do you remember such a meeting?
A. I have no recollection of any such meeting, no, sir.
Q. Do you --
THE COURT: Have you reviewed your report?
THE WITNESS: I have, sir, yes.
THE COURT: Okay.
BY MR. PARRINELLO:
Q. Would you look at page 6, please?
A. Yes, sir.
Q. And on page 6, if you read page 6 and the reference to
September 15th, 2008, read that to yourself, please.
A. Okay.
Q. And who's the reporting officer on that -- in -- of that
report?
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D. Kron - Direct 46
A. That would be myself.
Q. And on September 15th, 2008, do you recall being in the
company of Special Agent Matt Meyer of ICE?
A. I do.
Q. At the Monroe County Sheriff's property clerk office?
A. I do.
Q. And at that time, sir, did you authorize that the --
Mr. Skvarla's computers, hard drives, CDs and DVDs that were
taken from his residence should be released to Special Agent
Meyer for forensic examination?
A. Yes, I -- that is notated here.
Q. Okay.
A. And myself and --
Q. I'm sorry. You were --
A. Would you like me to continue?
Q. Yeah, sure.
A. You described it as a meeting amongst many people. I met
with SA Matt Meyer at the property office to turn over
property. That's not quite the meaning I believe you were
describing.
Q. I'm going to get to that right now.
A. Okay. Great.
Q. Now, before turning that -- you were not, as a deputy,
authorized to turn those materials over to Special Agent Meyer
without some permission from your superior, correct?
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D. Kron - Direct 47
A. No, that's not correct, sir.
Q. Now, this state investigation of Mr. Skvarla, do you know
how it ended?
A. I don't understand your question.
Q. Did the state investigation of Mr. Skvarla continue on to
a trial?
A. It did not, no.
Q. Do you know how it ended?
A. No, I don't know how it ended.
It ended when federal charges -- it was determined federal
charges would be lodged, if you will, against Mr. Skvarla.
Q. Well, federal charges weren't lodged against
Mr. Skvarla -- do you know -- do you know that federal charges
in the form of a criminal complaint were lodged against
Mr. Skvarla on March 25th, 2009, in the form of a criminal
complaint?
A. I don't know what day the federal government charged
Mr. Skvarla, no.
Q. Okay. And you're saying that as far as you know, the
state prosecution never took place, right?
A. Describe prosecution. You mean to trial? Is that what
you're referring to?
Q. Well, going in front of the state superior court judge,
motions, hearings, ultimately a trial?
A. Yes. To my knowledge, none of that took place with
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D. Kron - Direct 48
Mr. Skvarla on the stateside, that's correct.
Q. And by the way, with respect to the state charges, the
state charges that were brought against Mr. Skvarla, there were
two charges brought, and correct me if I'm wrong, one of them
was possessing a sexual performance by a child pursuant to New
York Penal Law Section 263.16; and the second charge was
promoting a sexual performance by a child pursuant to New York
Penal Law Section 263.15. Do you recall that those were the
two charges lodged against Mr. Skvarla?
A. I do, yes.
Q. And did it -- was it ever called to your attention that
those charges were submitted to a Monroe County grand jury
which returned a no cause for action or otherwise termed a no
bill?
A. No, I don't -- know such knowledge of that.
Q. Now, you were the lead investigator on the Skvarla matter
for the State of New York, correct?
A. Correct.
Q. Did you ever appear in front of a Monroe County grand
jury?
A. I don't recall appearing in front -- I don't believe I
did. Again, four years ago. I can't say with any certainty if
I did or not.
Q. Have you ever appeared in front of a Monroe County grand
jury?
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D. Kron - Direct 49
A. Many times.
Q. And what you're saying is you don't recall whether in this
case you appeared in front of a Monroe County grand jury
regarding the state prosecution of Mr. Skvarla; is that what
you're telling the judge?
A. That's what I'm telling the Judge, yes.
Q. Deputy Kron, did you download from Mr. Skvarla's computer
child pornography on September 11th, 2007?
A. I don't believe I did. I would have to refer to my
notes -- excuse me -- my report.
Q. Go ahead. Yes.
A. No, sir, I do not believe I downloaded anything from
Mr. Skvarla on September 11th.
Q. 2007?
A. 2007?
Q. Yes, sir.
A. No, not to my knowledge.
Q. Okay. And did you download child pornography from
Mr. Skvarla's computer on May 9th, 2008?
A. Again, may I refer to these dates?
Q. Absolutely.
A. You say May 9th, 2008; is that correct?
Q. Yes, sir.
A. No, sir, I did not.
Q. How about on April 2nd, 2006, did you download from
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D. Kron - Direct 50
Mr. Skvarla's computer child pornography?
A. Not to my knowledge, no.
Q. Do you know what real time is?
A. In what context are you using?
Q. In the context of monitoring somebody's computer to
determine the source from which that computer received child
pornography.
A. No, sir, I don't believe I'm familiar with that.
Q. Are you acquainted with eavesdropping warrants?
A. No, no, I'm not.
Q. Pardon me?
A. I familiar they exist. I've never written an
eavesdropping warrant, no.
Q. So in this case, you never applied for an eavesdropping
warrant in order to watch in real time the source of
Mr. Skvarla's source of the child pornography on his computer,
did you?
A. No, I have not.
Q. Do you know what a Wyoming Toolkit is?
A. Yes, I'm familiar with a Wyoming Toolkit, somewhat.
Q. And did you utilize Wyoming Toolkit?
A. I never utilized Wyoming Toolkit.
Q. Do you -- when you say you're acquainted with it, have you
ever utilized it?
A. I've never used the Wyoming Toolkit, no.
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D. Kron - Direct 51
Q. Have you been trained with respect to use of a Wyoming
Toolkit?
A. I don't know specifically what a Wyoming Toolkit is. I
understand the concept. It's a -- it's a number of tools used
to conduct peer-to-peer investigations. Beyond that, I don't
know specifically how it operates or what -- what the -- what
software is used for the Wyoming Toolkit.
Q. Do you know -- to the extent of your knowledge of the
Wyoming Toolkit, do you know whether or not the use of such a
kit can identify where an image is coming from?
A. It -- yes, it identifies the image as coming from the
source from which it's downloaded.
Q. And in this case, without the use of the Wyoming Toolkit,
you identified the source from which the images you downloaded
to be Mr. Skvarla's computer, correct?
A. Well, an IP address and used by Mr. Skvarla, yes.
Q. Okay. In your -- in the process of the Skvarla
investigation, was it one of your objectives to -- I'm sorry --
strike that.
You said that this time lapse that occurred with
respect -- from March 13th, 2008, to the search and arrest on
September 11th, 2008, at that time that -- you explained that
as you being only one person involved and that you had a lot on
your plate, correct?
A. I explained there were a number factors there that may
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D. Kron - Direct 52
have caused that, but yes, that is one factor.
Q. Now, with respect to that statement, there were other
investigations that you were conducting in the Monroe County
area, along with the Skvarla investigation during that time
period; is that correct?
A. Yes, that would have been.
Q. And with respect to -- can you estimate for the Judge
between March 15th, 2008, and September 11th, 2008, how many
other investigations you were conducting concerning child
pornography -- child pornography in Monroe County?
Can you give us an estimate?
A. It's difficult to say. Perhaps 20, 30 during that time
frame.
Q. Yes. And do you know, sir, whether or not of those 20 or
30 investigations, one of which would have been the Skvarla
investigation, do you know, sir, how many of those resulted in
prosecutions?
A. I don't know. I don't know without reviewing that
material.
Q. Can you tell the Judge of that 20 or 30 investigations
during that time period, including Mr. Skvarla, how many were
referred to the federal government?
A. I have no idea.
Q. Were any, other than Mr. Skvarla?
A. Prior to Mr. Skvarla, many of these cases were prosecuted
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D. Kron - Direct 53
federally.
Q. Not prior. From March 15th, 2008?
A. Okay.
Q. To September 11th, 2008?
A. Okay.
Q. How many of those other investigations, other than
Mr. Skvarla, did you refer to the federal government?
A. I didn't refer any to the federal government. I don't
know how many were prosecuted during that time frame. And when
you say "prosecuted", as we can see, the federal system takes a
long time sometimes.
So there could have been many that were taken by the
federal government prior to March that were still in the stages
of prosecution.
So your question is very confusing. How many were --
Q. If it's confusing then let me try to ask it in a less
confusing way.
A. Right.
Q. Of the 20 or 30 investigations that you were participating
in from March 15th, 2008 --
A. Right.
Q. -- to September 11th, 2008, can you tell the Judge how
many of those individuals you arrested?
A. How many of those investigations ended in arrest?
Q. Ended in arrest in that time period.
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D. Kron - Direct 54
A. I don't know exactly. On the average, there were probably
one or two arrests a month, I believe, on the average.
Q. One or two a month in that six months period, correct?
A. I believe. I don't recall exactly.
Q. Okay. That -- by multiplication that would be
approximately 12 arrests, right?
A. But if you're using the two figure, yes. If it was --
it's hard to say. It's hard to say. In some months -- in one
month I made four arrests; in one month I made one arrest. I
cannot average it out for you. There's a lot of variables.
Q. How many of those arrests that you did make -- this at
that time period --- did you -- were -- ended up being
prosecuted in the federal system; do you know?
A. I don't know.
MS. MILLER: Objection, calls for speculation.
THE COURT: If he knows.
BY MR. PARRINELLO:
Q. If you know.
A. I don't know. I don't even --
Q. Okay. Now, in the Skvarla case, did you testify in
federal grand jury?
A. I don't recall. I don't believe so.
Q. In any of the other cases that you-- in that time period,
March 15th, 20 --
A. In that time period, I don't know, sir. During that six
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D. Kron - Direct 55
months, I don't know what I went to the grand jury on.
Q. When were you cross-designated?
A. That would have been approximately May of 2009, if by
cross-designated you mean affiliated with the FBI.
Q. Yes, sir.
A. That would be May, 2009, roughly.
Q. And you moved physically from the sheriffs department to
the federal building?
A. For the most part, yes.
Q. And were you involved in that period of time in child
pornography investigations?
A. Yes.
MS. MILLER: Objection, relevance.
THE COURT: Overruled.
BY MR. PARRINELLO:
Q. Now, did there come a time that you made contact with ICE
in Virginia giving them Mr. Skvarla's IP address and requesting
whether or not you could download known child porn images from
the defendant's computer?
A. No, I know of no such thing.
Q. Now, the images that you downloaded, using the system
we've talked about, from Mr. Skvarla's computer, do you, of
your own personal knowledge, know whether any of those images
crossed state lines?
A. I believe based on the content some of those videos -- and
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D. Kron - Direct 56
let me clarify: You keep saying images, it was images and
videos, I think. I don't remember which one, which date, but
just to clarify. I believe there were videos that were clearly
foreign videos that I believe to have originated outside the
United States.
Q. And do you know, sir, the location from which the images
and videos on plaintiff's computer, were they -- where those
particular images came from, the location?
A. The ones that actually resided on Mr. Skvarla's computer?
Q. Yeah.
A. Is that what you're asking me?
Q. Yes, sir.
A. I do not know where they came from.
Q. Ever heard of the term "shortest path"?
A. Perhaps. I don't know. I've heard the term used. I'm
not sure in what context you're referring to.
Q. With respect to shortest path, as far as the -- an
internet standard, isn't it true that while searching a
peer-to-peer network, the travel of images take the fastest and
closest source possible?
A. I don't know that to be true, no.
Q. Isn't it true that the images and videos are more likely
to come from -- from within the state than out of the state?
A. No, no, not at all. That depends on the availability. It
has nothing to do with the path.
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D. Kron - Direct 57
Q. And these -- and these dates that I read to you:
September 11th, 2007; May 9th, 2008; April 2nd, 2006 in which
you said that you did not download those videos or images, do
you know where those images came from -- strike that.
Do you know whether or not those images appeared on
Mr. Skvarla's hard drive?
A. The images that I didn't download; is that what you're
saying?
Q. Yes, sir.
A. You just established I did not.
Q. You didn't download them?
A. I didn't download them.
Q. Do you know whether they appeared on his hard drive?
MS. MILLER: Objection, which images? I think that
the deputy has testified that he didn't download on a
particular date. So --
MR. PARRINELLO: Those are Counts 1, 2 and 3 of the
superseding indictment, Your Honor.
BY MR. PARRINELLO:
Q. You didn't download the images referred to -- have you
seen -- have you seen the superseding indictment?
A. I don't know if I have.
Q. And with respect to the images referred to in the
superseding indictment, do you know where those images came
from to Mr. Skvarla's computer?
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D. Kron - Direct 58
A. I don't know which images you're referring to.
Q. Let me show you Defense Exhibit 2 marked for
identification. Sir, I would represent to you that that is the
superseding indictment that is being prosecuted in this court.
A. Okay.
Q. Do you see Counts 1, 2 and 3 on page 2?
A. I do, yes, sir.
Q. And do you recognize the dates that I read to you that I
asked you about previously that you said you didn't download?
A. Yes.
Q. And, sir, do you know where any of those child pornography
images came from to get onto Mr. Skvarla's computer?
A. These ones that I know nothing about?
Q. Yes.
A. I don't know how to answer that, sir. You're asking me
about files that I know nothing about. These were not my
downloads.
Q. Is your answer that you don't know where they came from
and how they got onto Mr. Skvarla's computer; is that your
answer?
A. Assuming there were downloads that day unbeknownst to me,
yes, I do not how they got there.
Q. Or where they came from?
A. Having never seen them, of course not, no.
Q. Okay. Have you ever received a pen register?
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D. Kron - Direct 59
A. No, sir, I haven't.
Q. Do you know what a pen register trap and trace is?
A. Somewhat, yes.
Q. And at no time with respect to Frontier did you apply for
a pen register trap and trace to be placed on Mr. Skvarla's
computer, did you?
A. No, that's correct, I did not.
MR. PARRINELLO: Excuse me, Your Honor.
BY MR. PARRINELLO:
Q. Deputy Kron, with respect to images and/or videos that you
did download on those five dates that we talked about, all you
know about is that they came from Mr. Skvarla's computer to
your computer, correct?
A. His IP address to my computer, yes.
Q. And as far as where they came from to get onto
Mr. Skvarla's computer, you don't know where they came from, do
you?
A. That is correct, I don't.
MR. PARRINELLO: Your Honor, thank you very much. No
more questions.
THE COURT: How long are you going to be?
MS. MILLER: I don't know. I'd like to clear up a
few issues. Certainly not the two hours that we've taken to
present. Perhaps 15 to 20 minutes.
MR. PARRINELLO: I object to that reference to the
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D. Kron - Cross 60
time I took, but I'll --
THE COURT: All right. Why don't we take a
five-minute break.
(A recess was taken at 3:56 p.m.)
THE COURT: Sorry for the delay here.
(Off the record discussion.)
THE COURT: Ms. Miller, you're up.
MS. MILLER: Thank you, Your Honor.
CROSS EXAMINATION
BY MS. MILLER:
Q. Deputy Kron, you testified that you had used a law
enforcement version of LimeWire?
A. That is correct.
Q. And that law enforcement version of LimeWire utilized the
Gnutella network --
A. Yes.
Q. -- is that correct?
Is it also correct that you testified about other
peer-to-peer file sharing programs including BearShare,
FrostWire, Shareaza, Kazaa; is that correct?
A. Yes, that is correct.
Q. And to your knowledge, do all of those file sharing
software programs also utilize the Gnutella network?
A. They do, yes.
Q. Is it possible then that you, as a member of law
Case 6:09-cr-06147-RJA-JWF Doc