                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                    File Name: 17a0105p.06

                   UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT



 UNITED STATES OF AMERICA,                              ┐
                                  Plaintiff-Appellee,   │
                                                        │
                                                        >      No. 16-6291
        v.                                              │
                                                        │
                                                        │
 MICHAEL MANCIL BROWN,                                  │
                               Defendant-Appellant.     │
                                                        ┘

                        Appeal from the United States District Court
                      for the Middle District of Tennessee at Nashville.
                   No. 3:13-cr-00118-1—Billy Roy Wilson, District Judge.

                                   Argued: May 3, 2017

                             Decided and Filed: May 15, 2017

             Before: COLE, Chief Judge; SUTTON and KETHLEDGE, Circuit Judges.
                                  _________________

                                        COUNSEL

ARGUED: J. Alex Little, BONE MCALLESTER NORTON PLLC, Nashville, Tennessee, for
Appellant. Byron M. Jones, UNITED STATES ATTORNEY’S OFFICE, Nashville, Tennessee,
for Appellee. ON BRIEF: J. Alex Little, BONE MCALLESTER NORTON PLLC, Nashville,
Tennessee, for Appellant. Byron M. Jones, UNITED STATES ATTORNEY’S OFFICE,
Nashville, Tennessee, Anthony V. Teelucksingh, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.

                                    _________________

                                         OPINION
                                    _________________

       SUTTON, Circuit Judge.     When criminal-law cases imitate art, they do not always
choose its highest form. In Austin Powers: International Man of Mystery, Dr. Evil develops a
 No. 16-6291                         United States v. Brown                               Page 2


plan to steal a nuclear warhead and to hold the world hostage for $1 million. This was not, Dr.
Evil’s deputy pointed out, all that much money for a 1990s global criminal enterprise. But it was
enough for an anonymous extortionist in today’s case, who apparently was familiar with the
movie and who chose some features of it as signatures of his 2012 crime. Assuming the nom de
guerre “Dr. Evil,” the individual demanded $1 million in Bitcoin in exchange for an encryption
key to Mitt Romney’s unreleased tax returns. The extortionist claimed to have stolen Romney’s
returns from PricewaterhouseCoopers, and he posted a taunting, digitally altered image of Mike
Myers’s Dr. Evil, wearing a Secret Service badge, in the lobby of the accounting firm’s offices in
Franklin, Tennessee.

       A trail of digital breadcrumbs led law enforcement to Tennessean Michael Brown.
It turned out that Brown never stole Romney’s returns.             And his attempt to extort
PricewaterhouseCoopers, the Democratic and Republican parties, and the public earned Brown
twelve convictions for wire fraud and extortion, a four year prison sentence, and an order to pay
over $200,000 in restitution. Brown appeals his convictions on the grounds that the Secret
Service’s search warrant lacked probable cause and that he was prejudiced by the trial judge’s
decision to allow questions from the jury.      Brown also appeals the obstruction of justice
enhancement in the district court’s calculation of his sentence. We affirm Brown’s convictions
but vacate his sentence.

                                                I.

       On August 28, 2012, a padded envelope arrived at the Franklin, Tennessee office of
PricewaterhouseCoopers, an accounting and professional services firm. The envelope contained
a flash drive and a letter, which explained that the anonymous sender had gained access to the
firm’s network and stolen the unreleased tax documents of Republican presidential nominee Mitt
Romney and his wife Ann. To “Stop Release” of those tax records, all PricewaterhouseCoopers
had to do was deposit one million dollars in Bitcoin—a virtual, sovereign-free currency—into a
specified account. App. R. 34 at 4. The encrypted tax files on the thumb drive would go to
every major media outlet, the sender said, and the encryption key would become public if no one
paid him before September 28. At “the same time,” the letter stated, “other interested parties
 No. 16-6291                          United States v. Brown                              Page 3


will be allowed to compete” for the returns and guarantee immediate release of them by
depositing a million dollars in a separate, “Promote Full Release” Bitcoin account. Id.

         Within three days, similar envelopes with similar letters and flash drives arrived at the
offices of the Williamson County Republican and Democratic parties. And within a week after
that, a series of posts appeared on Pastebin.com, a website that permits anonymous publication,
describing the stolen documents and the information in the letters. The third of these Pastebin
posts—signed “Dr. Evil” and accompanied by an image of Dr. Evil superimposed on the lobby
of PricewaterhouseCoopers’ Franklin office—directed users to a downloadable, encrypted file
named “Romney1040-Collection.7z,” which had been uploaded to another site by
timyenmor28@live.com (that’s “Romney” and “Mit” spelled backwards). Id. at 34, 39, 41.

         Meanwhile, the Secret Service opened an investigation, as did PricewaterhouseCoopers.
The PricewaterhouseCoopers security team concluded that no one had breached its network or
compromised the Romney tax records. That left the Secret Service to catch the schemer.
Records obtained from Pastebin showed that the three posts had been made using the TOR
network, which routes online communications through anonymizing proxy computers to hide the
user’s IP address. And the Secret Service took possession of the envelopes, letters, and flash
drives. All three flash drives contained a file named “Romney1040-Collection.7z.” R. 177 at
33, 53–54. The unallocated space on the drives also held text strings and two photos of cats.
The PricewaterhouseCoopers flash drive held the text string, “5276 dolphin kathryn.” Id. at 35.
The Democratic Party drive had the string “4154 dolphin KnightMB.” Id. at 55, 57; App. R. 34
at 22.

         A series of Google searches using “KnightMB” revealed an email address,
knightmb@knightmb.dyns.org, and that a 33 year-old Tennessean named Michael Brown made
online posts connected to that address. The Tennessee Department of Motor Vehicles confirmed
that Michael Mancil Brown lived in Franklin and had a spouse named Kathryn. AT&T’s
subscriber records for Brown’s home listed his email address as knightmb@knightmb.dyns.org.
Brown’s Comcast subscriber records led to knightmb@timekoin.org. YouTube videos posted by
“KnightMB” had Brown in them. And another online post by “KnightMB” had bragged about
encrypting a file using 7-Zip, the program denoted by the “.7z” file extension in “Romney1040-
 No. 16-6291                          United States v. Brown                               Page 4


Collection.7z.” The Secret Service obtained a trap-and-trace order, see 18 U.S.C. § 3123(a)(1),
to monitor internet traffic in and out of Brown’s house. On September 11, 2012, an IP address
associated with Brown connected to TOR—the anonymizing proxy network that “Dr. Evil” and
“timyenmor” had used—and accessed the same German IP address that one of the Pastebin posts
had come from.

       The Secret Service obtained a search warrant for Brown’s home, and forensic
examination of Brown’s computer identified more incriminating evidence. The key conclusions
were (1) that the extortionist’s flash drives had connected to Brown’s computer less than a week
before they arrived at PricewaterhouseCoopers and the Democratic and Republican parties,
(2) that Brown’s computer had stored the Romney1040-Collection.7z file, (3) that Brown’s
internet browser had bookmarked the Bitcoin addresses in the extortion letters two days before
the first extortion letter arrived at PricewaterhouseCoopers and had accessed those addresses on
the morning of the search, (4) that his computer had used TOR to connect to the IP address
linked to one of the Pastebin posts ten minutes before that post appeared, (5) that the computer
used the KnightMB email address around the time it had Googled directions to the
PricewaterhouseCoopers office in Franklin, one week before the letter arrived there, and (6) that
the computer had stored the images of Dr. Evil and the PricewaterhouseCoopers lobby, the
“timyenmor” email address, and the text of the “Dr. Evil” post—all before any of those items
appeared on Pastebin—as well as numerous filenames related to Romney’s taxes. Brown’s
neighbors said that he went to their house to print some files (the extortion letters), where he had
also gotten padded envelopes like the ones the letters and thumb drives arrived in. Brown’s
spouse and daughter resolved one last mystery: The anonymous cats pictured on the Democratic
Party thumb drive belonged, they said, to a neighbor, Janine Bolin. Ms. Bolin corroborated that
those were her cats, Tripper and Valentine, and that Brown had once helped her with some
computer problems.

       When confronted with this evidence, Brown denied any involvement. He told the Secret
Service that someone else must have been in his house and manipulated his computer to do all of
those incriminating things. He couldn’t say who, but he did say he had seen two unknown black
men sitting at his computer at different times. In fact, he added, strangers often came to his
 No. 16-6291                          United States v. Brown                                Page 5


house, and any one of them, or any one of the eight people on a list of visitors that Brown
provided to the Secret Service, could have been the extortionist.

       The government did not buy these explanations, and a grand jury indicted Brown. A jury
convicted him on all twelve counts—six for wire fraud, six for extortion. That led to a 48-month
sentence and $201,836 in restitution to PricewaterhouseCoopers for the cost of its investigation.

                                                II.

       Motion to suppress. Brown argues that the district court erred when it denied him a
hearing under Franks v. Delaware as part of his motion to suppress evidence from the search of
his home. 438 U.S. 154, 155–56 (1978). If a defendant shows that the police used “false
statements” to obtain a warrant, Franks gives the defendant the right to obtain an evidentiary
hearing to challenge its validity. United States v. Fowler, 535 F.3d 408, 415 (6th Cir. 2008). No
hearing is needed if the affidavit supports probable cause after setting aside any false statements.
Franks, 438 U.S. at 171–72.

       Here are the alleged falsities. The affidavit details the Secret Service’s prior investigation
of Brown for an unrelated incident involving data stolen from an insurance company. That
investigation started in 2009 and ended in 2010, after Brown took a polygraph exam. The
affidavit repeatedly refers to this as the “2009 investigation,” but misstates the date of the
polygraph exam as “January 13, 2012,” when it occurred on January 13, 2010. R. 4 at 47–48.
The affidavit also fails to state that Brown passed the polygraph. This error and this omission,
says Brown, created the false impression that the investigation concluded more recently than it
had and that the Secret Service had caught him lying before. He also says the affidavit unfairly
omitted (1) that many presumably innocent people use TOR, (2) that the cats pictured on the
thumb drives did not appear to be at his house, (3) that Brown runs an internet business, which
means many users besides Brown use his IP addresses, (4) that the Secret Service did not know
when or how the text strings got on the extortionist’s thumb drives, and (5) that Brown
sometimes spelled “advice” correctly, even though he had misspelled it (as “advise”) during the
insurance company incident in the same way the “Dr. Evil” letter misspelled it.
 No. 16-6291                         United States v. Brown                               Page 6


       Even if we edit the affidavit in the way Brown requests, probable cause still exists.
All that’s needed for probable cause “is a fair probability that contraband or evidence of a crime
will be found in a particular place.” United States v. Miller, 314 F.3d 265, 268 (6th Cir. 2002)
(quotation omitted). That is a “practical, common-sense decision,” Illinois v. Gates, 462 U.S.
213, 238 (1983), based on “the totality of the circumstances, not line-by-line scrutiny” of the
affidavit, United States v. Thomas, 605 F.3d 300, 307 (6th Cir. 2010).

       The revised affidavit offers “a fair probability” that Brown’s home would contain
evidence of the crime. Start with the text strings on the flash drives. One of them featured
“KnightMB,” which was associated with several of Brown’s email addresses, online usernames,
his Bitcoin-like business (called TimeKoin), and the utility companies that serviced his house in
Franklin. Searches related to “KnightMB” also showed that Brown lived in Franklin, where all
three extortion letters arrived, and that he was married to someone named Kathryn. One of the
other flash drives had the name Kathryn, spelled the same way, in its unallocated space. Even
accounting for the fact that the Secret Service did not know how those text strings landed on the
flash drives, these facts alone established probable cause to search Brown’s house.

       But that’s not the last of it. The supposed Romney tax files were encrypted with 7-Zip,
and someone going by “knightmb” (Brown’s frequent username) had posted online about
successfully using 7-Zip.    The Pastebin poster had used TOR (a common mechanism for
anonymizing internet use) to connect to a specific IP address in Germany; the Secret Service
then observed someone in Brown’s house using TOR to connect to the same German IP address.
Looking at all of these circumstances and without mentioning the insurance company incident,
these facts establish a fair probability that the Secret Service would find evidence of a crime in
Brown’s house. See Thomas, 605 F.3d at 307.

       Once you add the insurance company incident, that probability gets higher.           After
properly accounting for the fact that Brown passed his polygraph and that the investigation
concluded almost three years before, the 2009 insurance company investigation still showed that
Brown was a sophisticated computer user who had gained access to private information inside a
secure network. It also revealed that he misspelled “advice” as “advise” at least once (but not
always). “Dr. Evil” made the same mistake. R. 4 at 34, 48. All in all, probable cause existed.
 No. 16-6291                            United States v. Brown                              Page 7


        Brown responds that TOR is so common that it renders his home’s connection to it
“meaningless.” Appellant’s Br. 31. But his home didn’t merely connect to TOR; it used TOR to
connect to the same German IP address that the Pastebin poster used.

        Saying “advise” instead of “advice,” he adds, is meaningless given that he sometimes
used “advice” correctly. He’s right that this was not the Rosetta Stone to the investigation. But
it still had some probative value and supported all of the other arrows pointing in his direction.

        Same with the insurance company incident. Brown argues for the first time on appeal
that we should redact the entire insurance company incident from the affidavit. See Appellant’s
Br. 31–33. That’s quite a change of heart. He first wants to challenge the omissions from this
part of the affidavit, then claims the incident told the magistrate too much. But law enforcement
need not omit facts from an affidavit just because they came to light in an earlier investigation.
It’s usually a good idea for affidavits to include as much potentially relevant information as
possible, not least because it avoids reckless omissions under Franks. The 2009 investigation
explains what the Secret Service already knew about Brown, including his facility with
computers and his experience in taking protected data from a private company. The Secret
Service agent fairly included it in the affidavit.

        Juror questions. Brown challenges the trial judge’s decision to permit jurors to propose
questions during the trial. Because he declined to raise this objection before or during trial, we
review it for plain error. Fed. R. Crim. P. 52(b); United States v. Henry, 797 F.3d 371, 374 (6th
Cir. 2015).    That means we may correct the error only if it was obvious, prejudiced the
defendant, and seriously affected the integrity of the proceeding. Molina-Martinez v. United
States, 136 S. Ct. 1338, 1343 (2016).

        Brown’s claim does not get out of the gate. There was no error, plain or otherwise, in the
choice to allow juror questions. Trial judges have discretion to permit juror questions if they
take precautionary measures. United States v. Collins, 226 F.3d 457, 462–65 (6th Cir. 2000); see
also United States v. Rawlings, 522 F.3d 403, 407 (D.C. Cir. 2008) (noting unanimity among ten
circuits). Juror questioning, we have explained, “should be a rare practice,” but “the balance of
risks to benefits is more likely to weigh in favor of juror questions in complex cases.” Collins,
 No. 16-6291                           United States v. Brown                                 Page 8


226 F.3d at 463. When a district court decides to permit juror questions, (1) counsel should be
alerted as early as practicable; (2) the jury should be instructed that questions should be reserved
for important points, that the rules of evidence may prevent certain questions from being asked,
and that jurors should not draw any inferences from the court’s choice not to ask a question;
(3) the court should give a prophylactic instruction in its final charge to the jury; and (4) “a
screening mechanism should be set in place, such as having the jurors write down their questions
and pass them to a judge, followed by a sidebar at which the judge would rule on attorneys’
objections.” Id.

       No abuse of discretion occurred. Understanding the evidence required the jury to grasp
the Secret Service’s forensic analysis of thumb drives, online posts, and Brown’s computers, as
well as the TOR network, Bitcoin, fingerprint matching, and digital photo manipulation. That’s
enough complexity for a district court to believe that permitting questions might aid jurors in
their search for truth. And the precautionary measures taken by the trial judge ensured that the
jury would retain its proper role and that the parties would not be prejudiced.

       As in Collins, the district court announced its intention to permit juror questions on the
first day of trial. See id. As in Collins, the court created a screening procedure and instructed
jurors that, after the lawyers were finished, they could ask questions they “consider[ed]
important of [that] witness [by] writ[ing] it out [and] pass[ing] it down” so that the judge and
lawyers could consider whether to ask it. R. 176 at 34–35; Collins, 226 F.3d at 464. The court
further instructed the jury, as Collins recommends, that a juror should not “become a detective.
Don’t ask too many questions.” R. 176 at 34. And “don’t get your feelings hurt” if your
question doesn’t get asked, because it may have “been ruled on earlier” or may be addressed by
another witness later. Id.; see Collins, 226 F.3d at 463. Although the district court did not repeat
those instructions in its final charge, it reminded the jury that its prior instructions still applied.
No error occurred.

       Obstruction of justice. Brown claims that the district court improperly increased his
offense level based on obstruction of justice. In assessing an obstruction of justice enhancement,
we give clear error review to the district court’s factual determinations and fresh review to its
legal conclusions. United States v. Bazazpour, 690 F.3d 796, 805 (6th Cir. 2012).
 No. 16-6291                          United States v. Brown                               Page 9


       The Sentencing Guidelines add two levels to the offense level if “the defendant willfully
obstructed or impeded, or attempted to obstruct or impede, the administration of justice with
respect to the investigation, prosecution, or sentencing of the instant offense of conviction.”
U.S.S.G. § 3C1.1. The Application Notes provide non-exhaustive lists of covered and non-
covered conduct. Id. at n.4, n.5. Note 4(G) provides that “a materially false statement to a law
enforcement officer that significantly obstructed or impeded the official investigation or
prosecution” generally merits an enhancement. And Note 5(B) provides that “making false
statements, not under oath, to law enforcement officers” generally does not merit an
enhancement “unless Application Note 4(G) above applies.” The upshot is that a lie to an
investigator by itself does not usually warrant an enhancement unless it substantially interferes
with the government’s investigation. United States v. Carter, 510 F.3d 593, 598 (6th Cir. 2007).

       The district court found one obstructive act: that Brown “ran a rabbit across the trail” by
telling investigators that other people had “access” to his computer and thus may have committed
the crimes. R. 175 at 16. There is some dispute over whether the two unnamed black men
Brown mentioned during the proffer were included in the list of eight people with access to
Brown’s computer that his lawyer later emailed to investigators. But Brown cannot be subject to
an obstruction enhancement either way. If the two men were not included in the list, the
government has not shown, and the district court did not find, that this statement caused any
obstruction, significant or otherwise, to the government’s investigation.

       And even if the list of eight included the two men mentioned during the proffer, Brown’s
statements do not establish obstruction of justice for two reasons. The first is that Brown did not
lie. The emailed list of eight names, supplied by his lawyer to investigators, responded to a
question posed by investigators and came with the caveat that it was “not furnished as being
exculpatory.” App. R. 34 at 209. The trial established that six of the eight people had indeed
been to Brown’s house and thus had “access” to Brown’s computer. As for the two individuals
on the list who had never been to Brown’s house, they were added to the list by Brown’s wife,
not Brown.

       The second reason is that the email did not “hurt or retard [the] investigation.” United
States v. Williams, 952 F.2d 1504, 1516 (6th Cir. 1991). Brown’s defense was that he didn’t do
 No. 16-6291                          United States v. Brown                           Page 10


it and that these eight people had access to his computer and thus may have committed the crime.
All the investigators had to do in response was investigate the eight people on the list. The
investigators interviewed each one. They called each one at trial. And when each of the persons
on this discrete list denied using Brown’s computer, that helped the government, as it
undermined Brown’s credibility, bolstered the government’s case, and eliminated one of the few
remaining ways in which this crime could have been committed.           Brown’s statements to
prosecutors thus did not “significantly obstruct[] or impede[] the government’s investigation”
and thus cannot suffice for an obstruction of justice enhancement. Carter, 510 F.3d at 598; see
U.S.S.G. § 3C1.1 n.4,

       For these reasons, we affirm Brown’s convictions, vacate his sentence, and remand for
resentencing consistent with this opinion.
