United States v. Timothy DeFoggi
839 F.3d 701
| 8th Cir. | 2016Background
- FBI operated and seized a Tor-hosted child pornography site called "PedoBook" (server seized Nov. 18, 2012; site ran Mar–Dec 2012) and monitored user communications after seizure.
- PedoBook required Tor and direct knowledge to access; it had private messaging, profiles, groups, and >8,100 members.
- Timothy DeFoggi (username "fuckchrist", display name "Ptasseater"), a former HHS cyber-security director, registered on PedoBook and joined multiple groups; private chats expressed interest in sexual violence against children and solicited images.
- FBI linked those usernames to DeFoggi via cross-site username use, IP leads to Verizon records, informant information, surveillance, pen registers/trap-and-trace, and contemporaneous Tor activity from his home; agents found child porn and Tor browser on his laptop during a search.
- DeFoggi was convicted on multiple counts including a child exploitation enterprise (CEE) under 18 U.S.C. § 2252A(g) and several counts for accessing/viewing child pornography; district court vacated two conspiracy counts as lesser included offenses but sentenced him to 300 months; on appeal the CEE conviction was vacated and other convictions affirmed.
Issues
| Issue | DeFoggi's Argument | Government's Argument | Held |
|---|---|---|---|
| Admissibility of intercepted electronic communications / authorization | Application lacked required authorizing memorandum attachment; suppression required | Approving judge had the authorizing memorandum (Blanco letter) when approving; magistrate found authorization present | No plain-error; denial of suppression affirmed (magistrate findings adopted) |
| Probable cause for search warrant of residence | Affidavit failed to link DeFoggi to PedoBook or show evidence would be at his home | Affidavit tied usernames to DeFoggi via cross-site identifiers, ISP records, informant, surveillance, pen register, and Tor activity from his home | Warrant supported by probable cause; suppression denied |
| Admission of "fantasy" private chat messages (Relevance and Rule 403) | Chats were irrelevant or unfairly prejudicial and should be excluded | Chats were probative circumstantial evidence linking DeFoggi to accounts and intent; prejudice argument speculative | Admission not an abuse of discretion; chats relevant and not shown to be unfairly prejudicial |
| Sufficiency of evidence for child exploitation enterprise (CEE) under §2252A(g) | CEE requires acting "in concert with" others for predicate accessing offenses; no evidence he accessed with others or agreed to do so | Government relied on forum participation, private messaging, and coordination to prove acting in concert | CEE conviction vacated: evidence insufficient to show predicate accesses were done "in concert with" three others (no conspiracy/agreement to access shown) |
| Sufficiency of evidence for Counts 4–7 (access with intent to view) | No direct proof he personally used the computer; Tor use could be work-related; chats were mere fantasy | Multiple links from usernames to DeFoggi, Tor traffic from his home, laptop downloading video, Tor browser and images found, solicitations in chats | Convictions on Counts 4–7 affirmed: reasonable jury could find DeFoggi accessed PedoBook with intent to view child pornography |
Key Cases Cited
- United States v. Lockett, 393 F.3d 834 (8th Cir.) (standard of review for unobjected-to magistrate findings)
- United States v. Lomeli, 676 F.3d 734 (8th Cir. 2012) (failure to attach authorization documents can warrant suppression)
- United States v. Manning, 738 F.3d 937 (8th Cir.) (private chats admissible as circumstantial evidence linking defendant to child pornography)
- Rutledge v. United States, 517 U.S. 292 (1996) ("in concert" signifies mutual agreement; informs CEE construction)
- United States v. Daniels, 653 F.3d 399 (6th Cir.) (interpretation of §2252A(g) regarding tallying persons across predicates)
- United States v. Wayerski, 624 F.3d 1342 (11th Cir.) (group structure and coordinated activity weigh toward enterprise/conspiracy findings)
- United States v. Williams, 553 U.S. 285 (2008) (offers/requests for child pornography are unprotected by the First Amendment)
- United v. Hager, 710 F.3d 830 (8th Cir.) (probable cause and totality-of-circumstances review)
- United States v. Evans, 802 F.3d 942 (8th Cir.) (disturbing nature of chats does not alone justify exclusion under Rule 403)