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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