United States v. Kyle BatemanUnited States v. Kyle Bateman
COUNSEL
ON BRIEF: Gregory A. Napolitano, LAUFMAN & NAPOLITANO, LLC, Cincinnati, Ohio, for Appellant. Kevin Koller, UNITED STATES ATTORNEY‘S OFFICE, Cincinnati, Ohio, for Appellee.
JOHN K. BUSH, Circuit Judge. This appeal is from a child pornography conviction obtained through the government‘s deployment of a Network Investigative Technique (“NIT“) to unmask anonymous users of a “dark-web” child pornography website known as “Playpen.” Defendant-appellant Kyle Bateman, like defendants in other Playpen-related prosecutions, challenges the validity of the nationwide search warrant (“NIT warrant“) that the government obtained from a federal magistrate judge in the United States District Court for the Eastern District of Virginia, which authorized the initial use of NIT. The NIT warrant, in turn, led the United States District Court of the Southern District of Ohio to issue a search warrant (“S.D. Ohio warrant“), thus allowing authorities to search Bateman‘s residence and computer. There, law enforcement agents obtained over 599 illicit images of children in Bateman‘s possession.
Bateman filed two motions: (1) to suppress the evidence obtained from the search warrants, and (2) for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), to question FBI Special Agent Douglas Macfarlane, who submitted the affidavit to obtain the initial NIT warrant. The district court denied both motions. Bateman then pleaded guilty to possession of child pornography, in violation of
Bateman‘s suppression motion fails based on our rulings in United States v. Moorehead, 912 F.3d 963 (6th Cir.), cert. denied, 140 S. Ct. 270 (2019), and United States v. Harney, 934 F.3d 502 (6th Cir. 2019). We also reject Bateman‘s arguments for a Franks hearing, as they are not persuasive under this court‘s precedent. Accordingly, we AFFIRM.
I.
The ever increasing and unprecedented capabilities of today‘s world wide web offer users access to information far beyond even twentieth-century imagination—all in just a matter of seconds. Adopting the vernacular of cyber-speak, the great majority of this content is on the “open” or “traditional” internet, meaning it is accessible by ordinary users without use of any special equipment, passwords, secret knowledge, or closed networks. But, beneath this easily accessible world lies a wholly separate world of cyber content, known colloquially as the “dark-web,” which is largely inaccessible to average internet users.1 Within this space, a number of cyber outlets distribute questionable content.2
“Playpen,” formerly one of the most notorious child pornography websites online
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FBI agents began to investigate the Playpen website in September 2014. Once accessed by agents, they discovered Playpen to be a message board with primary objectives of advertising and distributing child pornography.
Playpen‘s cyber location within the “dark-web“—as protected by the “Tor hidden service network” (“Tor“)5—rendered the website relatively inaccessible, as compared to websites on the“open” internet. And, of course, this was by design: The website‘s URL deliberately was composed of a convoluted array of algorithmically-generated characters,6 meaning it was virtually impossible to access this content through an ordinary web user‘s search. Additional barriers to entry included the numerous affirmative steps required of interested users, like Bateman, to access Playpen‘s content. He had to (1) download and install the dark-web Tor software on his computer; (2) obtain the site‘s intricate URL address directly from other anonymous users of Playpen, or from internet postings describing the website‘s location and content; and (3) enter this precise URL into the downloaded Tor browser. Because of this arduous cyber arrangement,
However, in December 2014, after approximately two months of investigation, a foreign law enforcement agency alerted FBI agents of its suspicions that a U.S.-based IP address was being used to house Playpen. Armed with this information, agents identified the server hosting the website. In January 2015, agents then executed a search warrant on the server, which in turn allowed them to create a duplicate version of the server at a government facility in the Eastern District of Virginia. On February 19, 2015, the FBI apprehended the suspected administrator of Playpen and assumed administrative control of the website.
Server data with nothing more, however, were insufficient to identify Playpen‘s individual users. Only a more targeted search warrant could do that. Consequently, on February 20, 2015, the FBI applied for a search warrant from a magistrate judge in the United States District Court for the Eastern District of Virginia, which would allow agents to employ NIT as a means in which to reveal the IP addresses of all users who logged onto Playpen. As a basis for the NIT warrant, the FBI included two attachments. Attachment A, entitled “Place to be
Searched,” outlined the warrant‘s purpose in allowing for the authorization of NIT on the government‘s Eastern Virginia-based computer server. (R. 16-5, NIT warrant at 210). NIT was justified as a critical vehicle through which agents could obtain relevant information connected to the activated computers of any user or administrator who logged into the Playpen website via a username or password. Attachment B outlined the specific information to be seized from a user‘s computer, which included the computer‘s accurate IP address. FBI agents predicted that these IP addresses could lead to the identities of the site‘s individual users and administrators.
In support of the NIT warrant request, FBI Special Agent Douglas Macfarlane swore out a 32-page affidavit. Covering a number of topics related to the NIT deployment, the affidavit included (1) pertinent background information on the Tor software that formed the basis of Playpen‘s operation; (2) specifics related to how agents would operate the NIT;7 (3) an outline of the multi-step process required of users wishing to access Playpen;8 and (4) the substantive content a user would encounter during each level of access into Playpen.9 Elaborating further on the substantive
On February 20, 2015, a United States magistrate judge from the Eastern District of Virginia signed the warrant. Immediately, and until March 4, 2015, law enforcement agents began operating the Playpen website and deploying NIT. During this short tenure, agents were able to uncover the IP addresses of all users who logged onto Playpen. One such user, “nevernudeever” (R. 16-7, S.D. Ohio warrant at 309), was Bateman. Using the NIT software, FBI agents confirmed Bateman‘s identity in connection with this IP address, and identified a service billing address matching Bateman‘s home address. In addition, based on the “nevernudeever” profile, the NIT software was able to discern that Bateman had registered his Playpen account on or around November 19, 2014. Between that date and March 2, 2015, Bateman was recorded to have been actively logged onto Playpen for a total of 11 hours and 54 minutes. Between February 20, 2015 and March 4, 2015—when FBI agents operated Playpen and deployed NIT—Bateman had logged onto Playpen numerous times, during which he had accessed approximately 75 threads in total, each of which contained various discussion posts.
Based on the information obtained about Bateman‘s Playpen activities through the NIT warrant, the government applied for a second warrant in the Southern District of Ohio—the district encompassing Bateman‘s residence—in order to search Bateman‘s home and collect evidence of his crimes related to the receipt and distribution of child pornography. In support of the warrant, FBI Special Agent Andrea Kinzig submitted a 33-page affidavit, where she set forth facts regarding (1) the Tor network; (2) the FBI‘s administration of the website since February 20, 2015; (3) Playpen‘s graphic content; and (4) information collected about Bateman‘s various activities while operating under the Playpen username “nevernudeever,” including three specific examples of the types of images and discussion threads he was accessing.11 Collectively, this
information led
On September 28, 2017, a grand jury returned a single-count indictment against Bateman, charging him with possession of child pornography in violation of
The district court denied all three motions to suppress. In denying the first motion, the district court referenced its previous ruling in United States v. Jones, 230 F. Supp. 3d 819, 821-22 (S.D. Ohio 2017). In Jones, although the court had concluded that the NIT was a “tracking device,” it nonetheless held that even if the warrant violated
Agent Macfarlane made the allegedly false statements about Playpen with deliberate or reckless disregard for the truth; and (3) address, let alone establish, materiality in his motion. As to the latter, the district court concluded that even if what Bateman had alleged to be false in the affidavit was suppressed, there were still “sufficient facts to establish the necessary probable cause [for the magistrate judge] to have properly issued the NIT warrant.” (R. 22, decision & entry at 457). Subsequently, on May 7, 2018, Bateman entered a conditional plea agreement, admitting that he had used various internet sites to access, download, and view child pornography files over a span of two years in violation of
II.
A. Bateman‘s Motion to Suppress
Generally, when reviewing the denial of a defendant‘s motion to suppress,
The Fourth Amendment protects individuals against “unreasonable searches and seizures.”
At the district court, Bateman moved to suppress all the evidence collected by the government, as well as all his statements made on August 19, 2015, when the FBI searched his home and interrogated him pursuant to the S.D. Ohio warrant, which was in turn, based on the NIT warrant issued from the Eastern District of Virginia. Bateman sought suppression based on the “fruit of the poisonous tree” doctrine. Namely, Bateman argued that the first NIT warrant was void ab initio because it lacked applicability outside of the Eastern District of Virginia, and therefore, all the evidence and statements obtained by the government pursuant to the warrant issued out of the Southern District of Ohio must be suppressed.
As Bateman acknowledges, his motion to suppress the NIT warrant is identical to that already decided twice by this circuit, and similar to other motions filed by defendants across the country, who have been charged under
In Moorehead, we considered a motion to dismiss filed by a defendant who was subjected to a residential search of his home located in the Western District of Tennessee, based upon a warrant that was issued pursuant to the government‘s original NIT warrant. 912 F.3d at 965-66. At the district court level, the defendant argued that the NIT warrant violated
Even with the binding value of the Moorehead decision, the defendant in Harney attempted to place his situation outside of our precedent by advancing numerous additional objections to the warrant‘s validity. Harney, 934 F.3d at 505-07. However, based on the directives of our previous ruling, which we held applicable to the facts in Harney, we dismissed each of the defendant‘s arguments summarily. Id. In doing so, we reaffirmed that the investigators who seized evidence pursuant to the original warrant acted in good faith when relying on that warrant. Id. at 505-06. Pertinent to our findings were the detailed facts alleged by Agent Macfarlane in his 32-page affidavit that were accepted as establishing probable cause by the issuing magistrate judge in the Eastern District of Virginia. Id. at 505. Namely, Agent Macfarlane‘s affidavit offered specific and particular details that (1) explained the need for the NIT search; (2) offered logistical information on how the program would work; (3) explained how the government would only be limited to searching computers that logged onto Playpen with a username and password; and (4) listed the seven specific items that the government sought from each computer logging into Playpen during the span in which agents would be administering the site. Id.
Accordingly, we find that under this court‘s holdings in Moorehead and Harney, the search of Bateman‘s home executed pursuant to the NIT warrant was valid under the good-faith exception. Indeed, Bateman acknowledges that his appeal here is without merit under this court‘s precedent, and he raises it only to preserve his argument from a claim of waiver should our precedent change by virtue of an en banc decision, or by a ruling of the Supreme Court.13 Also, as Bateman concedes, all other circuits that have been faced with questions of the validity
of the NIT warrant have uniformly rejected defendants’ analogous arguments to suppress the evidence seized by the government from their activated computers and from their physical residences. See United States v. Eldred, 933 F.3d 110 (2d Cir. 2019) (assuming arguendo that the NIT warrant violated the Fourth Amendment but holding officers acted in good faith and suppression is not warranted); United States v. Ganzer, 922 F.3d. 579 (5th Cir. 2019); United States v. Henderson, 906 F.3d 1109 (9th Cir. 2018); United States v. Kienast, 907 F.3d 522 (7th Cir. 2018); United States v. Werdene, 883 F.3d 204 (3d Cir. 2018); United States v. McLamb, 880 F.3d 685 (4th Cir. 2018); United States v. Levin, 874 F.3d 316 (1st Cir. 2017); United States v. Horton, 863 F.3d 1041 (8th Cir. 2017); United States v. Workman, 863 F.3d 1313 (10th Cir. 2017).
To reiterate then, Bateman acknowledges, and we recognize, that our controlling precedent forecloses his challenge to the district court‘s denial of his suppression motion. Consequently, we AFFIRM the holding of the district court.14
B. Bateman‘s Motion for a Franks Hearing
Lastly, Bateman argues that the district court erred in denying his motion for a Franks hearing. In making this argument, Bateman claims there was a substantial preliminary basis upon which to conclude that Agent Macfarlane made deliberately false or recklessly misleading declarations, which were essential to the magistrate judge‘s finding of probable cause to issue the NIT warrant. And, although Bateman did not raise this argument at the district court level, he also contends that he was improperly denied a Franks hearing in connection with the S.D. Ohio warrant issued for a search of his residence. Here too, he argues that Agent Kinzig made deliberately false or recklessly misleading declarations, which were essential to the magistrate‘s
finding of probable cause to issue the subsequent warrant.15 On this point, Bateman argues that unlike other defendants who have come before the district court in connection with the government‘s NIT deployment, he did not have the opportunity to examine either of the affiant officers responsible for the warrants issued in this case. Instead, the district court denied Bateman‘s motion for a Franks hearing of Agent Macfarlane, concluding that Bateman had neither met his burden to demonstrate that Agent Macfarlane had acted with deliberate falsity or recklessness, nor demonstrated the materiality of what Bateman believes were the false factual assertions leading to the issuance of the warrant.
This court evaluates a “district court‘s denial of a Franks hearing under the same standard as for the denial of a motion to suppress: the district court‘s factual findings are reviewed for clear error and its conclusions of law are reviewed de novo.” United States v. Graham, 275 F.3d 490, 505 (6th Cir. 2001); see also United States v. Young, 847 F.3d 328, 348 (6th Cir.), cert. denied, 138 S. Ct. 147 (2017); United States v. Poulsen, 655 F.3d 492, 504 (6th Cir. 2011) (“The determination as to whether a statement made in an affidavit is made with reckless disregard of the truth is a fact question.” (quoting United States v. Rice, 478 F.3d 704, 709 (6th Cir. 2007))).
“[O]f course, a presumption of validity [exists] with respect to the affidavit supporting the search warrant.” Franks, 438 U.S. at 171. And, “[w]hether to hold an evidentiary hearing based upon a challenge to the validity of a search warrant‘s affidavit, given alleged misstatements and omissions, is committed to the sound discretion of the district court.” Young, 847 F.3d at 348; see also Graham, 275 F.3d at 505. A defendant challenging the validity of a search warrant‘s affidavit bears a heavy burden. To be entitled to a Franks hearing, he must “1) make[] a substantial preliminary showing that the affiant knowingly and intentionally, or with
reckless disregard for the truth, included a false statement or material omission in the affidavit; and 2) prove[] that the false statement or material omission is necessary to the probable cause finding in the affidavit.” Young, 847 F.3d at 348-49 (quoting United States v. Pirosko, 787 F.3d 358, 369 (6th Cir. 2015)). If the defendant alleges an affiant‘s “recklessness,” the court employs a subjective test. United States v. Cican, 63 F. App‘x 832, 835-36 (6th Cir. 2003); United States v. Colquitt, 604 F. App‘x 424, 429-30 (6th Cir. 2015). A law enforcement officer‘s statement is only considered to be issued with “reckless disregard for the truth” if a defendant shows that the affiant subjectively “entertain[ed] serious doubts as to the truth of his [or her] allegations.” Cican, 63 F. App‘x at 836 (quoting United States v. Whitley, 249 F.3d 614, 621 (7th Cir. 2001)). “Allegations of [an agent‘s] negligence or innocent mistake are insufficient.” Franks, 438 U.S. at 171. “Only after the defendant makes this showing may the court consider the veracity of the statements in the affidavit or the potential effect of any omitted information.” United States v. Archibald, 685 F.3d 553, 558-59 (6th Cir. 2012). Here, a defendant must “point out specifically the portion of the warrant affidavit that is claimed to be false.” Franks, 438 U.S. at 170; see United States v. Green, 572 F. App‘x 438, 442 (6th Cir. 2014) (“[T]his court‘s well-settled framework for Franks hearings requires a defendant to ‘point to specific false statements‘. . . .” (quoting United States v. Cummins, 912 F.2d 98, 103 (6th Cir. 1990))). “[I]f, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.” Franks, 438 U.S. at 171-72.
We find that the district court did not err in denying Bateman‘s request for a Franks hearing of Agent Macfarlane.16
home page, which was the single most important piece of the probable cause puzzle,” and “false statements about the place to be searched pursuant to the NIT warrant.” (R. 22, decision and entry at 456-57) (citation omitted). Specifically, Bateman claims the affidavit falsely described the Playpen website as a forum dedicated to the advertisement and distribution of child pornography, as well as a forum dedicated to the sexual abuse of children.17 However, it is clear that Bateman is merely splitting hairs in making this accusation, and accordingly, we agree with the district court that Bateman makes a vain attempt to “characterize the Playpen website as merely a source of innocent child erotica.” (Id. at 457).
As the district court noted correctly, the topics, images, and discussion forums of which Bateman attempts to characterize as falling within the legal bounds of child erotica are far from it. Make no mistake: The Playpen website was designed to disseminate child pornography, and it was used as a vehicle to do so by those in the “know,” who took the multiple, arduous steps to gain access to this dark-web haven. Despite Bateman‘s argument, it is of little import that the Playpen website did not offer an explicit description of its purpose on the homepage—its purpose could be perceived almost immediately by the illicit material littered across that page and the site‘s various connected pages.
Related to his first falsehood contention, Bateman argues that the general descriptions of Playpen provided by Agent Macfarlane in his affidavit could have misled the magistrate judge into believing that explicit advertisements of Playpen‘s distribution of child pornography objective were included throughout the website. Here again, we make a similar conclusion as above: The technicality that Bateman raises is of no import, as he still fails to demonstrate any showing of falsity or material omission within Agent Macfarlane‘s statements. And in fact, we agree with the district court that in no way does Agent Macfarlane‘s affidavit suggest or imply
that an explicitly defined purpose of Playpen appeared on the website‘s homepage or was presented to users upon their logging into the site. Rather, we view Agent Macfarlane‘s summary descriptions of the website as operating as general backdrop paragraphs in which to contextualize why the FBI planned to conduct its NIT program. Further, the detailed descriptions provided by Agent Macfarlane were necessary to explain the graphic nature of the
Yet, most fatal to the claim, Bateman makes no showing that removing the allegedly false descriptions of Playpen‘s homepage provided by Agent MacFarlane would have materially affected the probable cause assessment of the magistrate judge in validating the warrant. Probable cause “requires only a probability or substantial chance of criminal activity.” United States v. Tagg, 886 F.3d 579, 585-86 (6th Cir. 2018) (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018)). This is not a high bar for the government to satisfy. Accordingly, the magistrate judge‘s determination of the existence of probable cause was likely not contingent on the appearance or non-appearance of explicit text on Playpen‘s homepage that outlined, in words, the site‘s purpose of disseminating child pornography. Rather, probable cause was more likely established through the magistrate judge‘s assessment of the entirety of Agent Macfarlane‘s affidavit, which as we explain above, provides necessary details of (1) Playpen‘s provocative homepage; (2) its secret location within the “dark-web” Tor network; and (3) the various affirmative steps that users, like Bateman, had to take in order to locate the website, register, and subsequently access child pornography. Cf. Kienast, 907 F.3d at 529 (“[B]y the time such actors have downloaded the software needed to access the dark web, entered the specific, sixteen-digit character jumble that is Playpen‘s web address, and logged into the site featuring at least one sexually suggestive image of a child, we are very skeptical that they are surprised to find themselves on a website offering child pornography.“).
In a final effort to allege a falsehood and render the NIT warrant defective, Bateman states that Agent Macfarlane suggested implicitly in the affidavit that the government‘s search activity would be confined within the Eastern District of Virginia. In making the argument, Bateman appears to rely simply on the cover page of the warrant, which does indicate that the intended subject property was to be located within the Eastern District of Virginia. However, an assessment of the affidavit in its entirety, including its referenced attachment, makes clear that Agent Macfarlane did not misrepresent the locations to be searched under the NIT deployment. Rather, in the affidavit and the attachment, he states that the warrant would authorize agents carrying out the NIT program to “cause an activating computer—wherever located—to send [identifying information] to a computer controlled by or known to the government.” (R. 16-5 NIT Warrant at 244) (emphasis added); see Harney, 934 F.3d at 505-06 (concluding the NIT warrant satisfied the “particularity” requirement of the Fourth Amendment because it “sufficiently described the place to be searched, saying all that reasonably could be said under the circumstances” and “allowed the government to search only those computers that logged into Playpen” during a set period
Moreover, tantamount to our assessment above, even if we were to agree with Bateman that the affidavit contained falsehoods or material omissions related to the location to be searched, he fails to provide any evidence that Agent Macfarlane knowingly, intentionally, or recklessly included such statements within his affidavit. Accordingly, we agree with the district court‘s finding that Agent Macfarlane‘s affidavit (1) accurately described the locations to be searched by agents administering the NIT deployment, which necessarily included locations outside of the Eastern District of Virginia, and (2) accurately described the NIT‘s operation as being triggered only when an activating computer‘s signals entered the Eastern District of Virginia (i.e. the jurisdiction in which agents were administering Playpen).
Finally, Bateman offers no evidence to show that the allegedly false locations, or omissions of such, within the affidavit were material in the magistrate judge‘s ultimate determination of probable cause. To reiterate, the government need not show more than simply a “probability or substantial chance of criminal activity” to establish probable cause. Tagg, 886 F.3d at 585. Based on this standard, it is unlikely that the affidavit‘s naming of locations to be searched—be it through searches conducted directly from the government‘s administration of Playpen from the Eastern District of Virginia, or the searches of the computers of Playpen users, which were physically located within other jurisdictions, but technologically connected to Playpen‘s home page within the Eastern District of Virginia—was material in the magistrate judge‘s determination that there was a “probability” or “substantial chance” that Playpen users, like Bateman, entered Playpen for the purpose of accessing child pornography in violation of
In light of the above, we AFFIRM the district court‘s dismissal of Bateman‘s Franks motion, as Bateman failed to show any of the requisite elements to trigger a Franks hearing in connection with the NIT warrant.
III.
For the aforementioned reasons, we conclude that the district court did not err either in denying Bateman‘s motion to suppress evidence seized pursuant to the NIT warrant, which led to his conviction under