United States v. Anzalone , 923 F.3d 1 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 17-1454
UNITED STATES OF AMERICA,
Appellee,
v.
VINCENT ANZALONE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Torruella, Selya, and Barron,
Circuit Judges.
Zainabu Rumala, Assistant Federal Public Defender, Federal
Public Defender Office, was on brief, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Andrew E. Lelling, United States Attorney, was on brief, for
appellee.
April 24, 2019
TORRUELLA, Circuit Judge. This case is one of many
arising nationwide from the 2015 FBI investigation into Playpen,
an online forum hosted in the Tor Network that allowed users to
upload, download, and distribute child pornography. Through that
investigation, defendant-appellant Vincent Anzalone ("Anzalone")
was identified as a Playpen user and indicted for possession and
receipt of child pornography. Anzalone thereafter moved to
suppress all evidence obtained pursuant to a Network Investigative
Technique ("NIT") warrant and to dismiss his indictment for
outrageous government conduct. The district court denied both
requests, which Anzalone asks us to reconsider on appeal, and we
now affirm.
I.
Those interested in the particulars of the FBI's Playpen
sting should refer to our opinion in United States v. Levin, 874
F.3d 316, 319-21 (1st Cir. 2017), which was the first case to come
before this court in relation to this investigation. The
background that follows thus only focuses on the facts most
pertinent to Anzalone's case.
On the evening of February 19, 2015, the FBI assumed
control of Playpen and decided to maintain the website live for
two weeks to identify and apprehend its users. On February 20,
the government obtained a warrant from a magistrate judge in the
-2-
Eastern District of Virginia authorizing it to deploy the NIT.
Id. at 320. A meticulous 31-page affidavit accompanied the FBI's
application for this warrant. The affidavit's statement of facts
in support of probable cause described, among other things, the
purpose of Playpen, the Tor Network and its hidden services, the
difficulty of coming across Playpen without seeking out its
content, and the appearance of Playpen's homepage on February 18,
2015 -- two days before the FBI applied for the NIT warrant. With
regards to Playpen's homepage, the affidavit averred that the page
showed "two images depicting partially clothed prepubescent
females with their legs spread apart." 1 The affidavit also
explained that Playpen counseled its visitors not to use their
real email addresses to register with the website.
Technicalities aside, the NIT allowed the FBI to
identify Playpen users when they entered their credentials to
access the website. Id. The NIT eventually led to the
identification of Anzalone as a Playpen user. During the two
weeks that the government ran Playpen, Anzalone was logged into
the website for twelve hours. On October 21, 2015, the FBI
executed a search warrant of Anzalone's residence. Anzalone
1 These images, however, were switched out by Playpen's
administrator before the government took over the site on February
19 and changed for the image of just one female, sitting cross-
legged in a dress and stockings.
-3-
waived his Miranda rights and, in an interview at his home with
the FBI Child Exploitation Task Force agents who executed the
warrant, admitted to possessing child pornography and to
downloading it multiple times a week for five or six years.
On November 12, 2015, Anzalone was indicted with one
count of possession of child pornography under 18 U.S.C.
§ 2252A(a)(5)(B) and one count of receipt of child pornography
under 18 U.S.C. § 2252A(a)(2)(A). Anzalone then moved to suppress
all the evidence resulting from the NIT warrant, arguing that the
warrant: (1) was not rooted in probable cause; (2) lacked
particularity; (3) was supported by a misleading affidavit; and
(4) was issued in excess of the magistrate judge's limited
territorial jurisdiction. Anzalone also sought to dismiss the
indictment alleging that the government engaged in outrageous
conduct by running Playpen for two weeks after seizing its control.
The district court denied these two motions, see United States v.
Anzalone, 221 F. Supp. 3d 189 (D. Mass. 2016) (denying the motion
to dismiss); United States v. Anzalone, 208 F. Supp. 3d 358 (D.
Mass. 2016) (denying the motion to suppress), after which Anzalone
pled guilty to both charges while reserving his right to appeal.
Anzalone was sentenced to 84 months in prison and five years of
supervised release.
-4-
II.
Anzalone contests the district court's denial of his
motion to suppress on four grounds. First, Anzalone claims that
the affidavit presented to the magistrate judge in support of the
NIT warrant was insufficient to establish probable cause. Second,
he maintains that the government included misstatements in the
warrant affidavit. Third, Anzalone insists that the magistrate
judge lacked jurisdiction to issue the NIT warrant pursuant to
Rule 41 of the Federal Rules of Criminal Procedure. Lastly, he
argues that the good faith exception established in United States
v. Leon, 468 U.S. 897 (1984), does not apply because the government
supplied misleading information to the magistrate judge and knew
of the jurisdictional limitations of Rule 41.
As a threshold matter, we find that our decision in Levin
forecloses both Anzalone's challenge under Rule 41 and his argument
about the alleged inapplicability of the Leon good faith exception.
In Levin, we examined the same NIT warrant and considered a similar
argument about the magistrate judge's alleged lack of jurisdiction
to issue the warrant under Rule 41 as a basis to suppress evidence.
874 F.3d at 318, 321. We concluded that the Leon good faith
exception applied and suppression was not warranted "[r]egardless
of whether a Fourth Amendment violation occurred." Id. at 321.
Specifically, we observed that there was no government conduct to
-5-
deter since "[f]aced with the novel question of whether an NIT
warrant can issue -- for which there was no precedent on point --
the government turned to the courts for guidance" and that, "if
anything, such conduct should be encouraged, because it leaves it
to the courts to resolve novel legal issues." Id. at 323. We are
bound to follow Levin's reasoning on these issues here.2 See
United States v. Guzmán, 419 F.3d 27, 31 (1st Cir. 2005) (noting
that, under the law of the circuit doctrine, courts of appeal are
"ordinarily . . . constrained by prior panel decisions directly
(or even closely) on point").
We take advantage of this opportunity, however, to
consider a question raised by Anzalone that was not addressed in
Levin: whether probable cause supported the NIT warrant. Anzalone
argues that it did not, but we disagree.
Our review of probable cause determinations is de novo.
See United States v. Tanguay, 787 F.3d 44, 49 (1st Cir. 2015). "A
2 All of our sister circuits to address the Rule 41 jurisdiction
issue with regards to this NIT warrant have also held that
suppression is not warranted and the good faith exception applies.
See United States v. Moorehead, 912 F.3d 963, 969 (6th Cir. 2019);
United States v. Kienast, 907 F.3d 522, 528 (7th Cir. 2018); United
States v. Henderson, 906 F.3d 1109, 1120 (9th Cir. 2018); United
States v. Werdene, 883 F.3d 204, 207 (3d Cir.), cert. denied, 139
S. Ct. 260 (2018); United States v. McLamb, 880 F.3d 685, 691 (4th
Cir.), cert. denied, 139 S. Ct. 156 (2018); United States v.
Horton, 863 F.3d 1041, 1052 (8th Cir. 2017), cert. denied, 138 S.
Ct. 1440 (2018); United States v. Workman, 863 F.3d 1313, 1321
(10th Cir. 2017), cert. denied, 138 S. Ct. 1546 (2018).
-6-
warrant application must demonstrate probable cause to believe
that (1) a crime has been committed -- the 'commission' element,
and (2) enumerated evidence of the offense will be found at the
place to be searched -- the so-called 'nexus' element." United
States v. Feliz, 182 F.3d 82, 86 (1st Cir. 1999). Like the
magistrate judge and the district court, we are tasked with making
"a practical, common-sense decision whether, given all the
circumstances . . . there is a fair probability that contraband or
evidence of a crime will be found in a particular place." Illinois
v. Gates, 462 U.S. 213, 238 (1983) (citations omitted); see also
United States v. Rivera, 825 F.3d 59, 63 (1st Cir. 2016) (noting
that probable cause "does not demand certainty, or proof beyond a
reasonable doubt, or even proof by a preponderance of the
evidence"). Recently, in District of Columbia v. Wesby, the
Supreme Court reiterated that probable cause determinations are to
be informed by the totality of circumstances and not by the
consideration of different pieces of evidence in isolation. 138
S. Ct. 577, 588 (2018).
Anzalone argues that the affidavit's description of the
image on Playpen's homepage (i.e., that the homepage showed two
"partially clothed prepubescent females with their legs spread
apart") was insufficient to establish probable cause. He also
insists that some allegations in the affidavit -- such as that
-7-
users had to download the Tor Network and take several other
affirmative steps to locate Playpen and that the site's homepage
emphasized anonymity -- are not indicative of criminality. In
making these arguments, Anzalone forgets that probable cause
determinations hinge not on discrete pieces of standalone
evidence, but on the totality of circumstances. Wesby, 138 S. Ct.
at 588. And here, the totality of the information asserted in the
warrant affidavit -- Playpen's hidden nature on the Tor Network,
its registration requirement, its focus on anonymity, and the image
depicted on its homepage -- established the fair probability that
users went into Playpen to access child pornography. See Gates,
462 U.S. at 238. Thus, the district court was correct to deny
Anzalone's motion to suppress for lack of probable cause.3
3 Anzalone further argues that probable cause cannot be
established because the FBI "was reckless in seeking the warrant"
since its affidavit presented an inaccurate description of
Playpen. According to Anzalone, the FBI knew at the time it
submitted its warrant affidavit on February 20 that the image on
Playpen's homepage had changed from depicting two females to just
one female. We agree with the district court that the FBI affiant
was not reckless in failing to reexamine Playpen's homepage
immediately prior to applying for the warrant on February 20. The
affidavit described the image that appeared on the homepage until
February 18, and that image was only changed on February 19 -- the
day before the FBI applied for the NIT warrant. Moreover, we find
that the warrant affidavit would have still supported probable
cause had it just described the new image uploaded on February 19.
-8-
III.
Next, we consider the district court's denial of
Anzalone's motion to dismiss the indictment. In this motion,
Anzalone alleged that the FBI's decision to operate Playpen for
two weeks amounted to outrageous government conduct that violated
his right to due process. Our review is de novo. United States
v. Luisi, 482 F.3d 43, 58 (1st Cir. 2007).
According to Anzalone, prior to seizing Playpen and
operating it for two weeks, "never ha[d] the government distributed
child pornography to hundreds of thousands of individuals with no
control over or knowledge of how those images were later shared
with others," thus exemplifying the reason why the FBI's Playpen
sting "was the epitome of outrageous conduct." Anzalone avers
further that "the government . . . engaged in misconduct that
cannot be condoned by this Court" since it "committ[ed] the crime
of child pornography distribution." He insists that, to identify
site users, the FBI had alternatives other than maintaining Playpen
at full operability, such as replacing "images of real children"
with "[l]egal child erotica or virtual child pornography" or
redirecting visitors to a "Playpen clone which lacked any illegal
content."
Law enforcement conduct encroaches on a defendant's due
process rights if it violates "fundamental fairness" and "shock[s]
-9-
. . . the universal sense of justice." United States v. Russell,
411 U.S. 423, 432 (1973) (quoting Kinsella v. United States ex
rel. Singleton, 361 U.S. 234, 246 (1960)). "In limited
circumstances, courts may dismiss criminal charges in response to
outrageous government misconduct." United States v. Djokich, 693
F.3d 37, 43 (1st Cir. 2012). We consider outrageous government
conduct claims "holistically, evaluating the 'totality of the
relevant circumstances' while recognizing that 'outrageousness, by
its nature, requires an ad hoc determination' that cannot 'usefully
be broken down into a series of discrete components.'" United
States v. Therrien, 847 F.3d 9, 14 (1st Cir. 2017) (quoting United
States v. Santana, 6 F.3d 1, 6-7 (1st Cir. 1993)). We have also
said that the outrageous government conduct defense may be viable
"where law enforcement personnel become so overinvolved in a
felonious venture that they can fairly be said either to have
creat[ed] the crime or to have coerc[ed] the defendant's
participation in it." Santana, 6 F.3d at 5 (citations omitted).
This defense, however, has never succeeded in our Circuit, see
Luisi, 482 F.3d at 59, in part because "[t]he law frowns on the
exoneration of a defendant for reasons unrelated to his guilt or
innocence," and thus "the power to dismiss charges based solely on
government misconduct must be used sparingly," United States v.
Guzmán, 282 F.3d 56, 59 (1st Cir. 2002).
-10-
To be sure, the strategy that the government employed in
this case falls close to the line. In an ideal world, there would
be effective ways to intercept individuals who trade and distribute
child pornography online other than running a child pornography
website for two weeks. But we live in a less than ideal world.
Ultimately, we agree with the district court that the FBI's Playpen
sting does not clear the high bar we have set for the outrageous
government conduct defense to succeed. See Therrien, 847 F.3d at
14 (noting that a "defendant's claim of outrageous government
misconduct faces a demanding standard"); United States v. Gifford,
17 F.3d 462, 471 (1st Cir. 1994) ("[F]undamental fairness is not
compromised in a child pornography case merely because the
government supplies the contraband.").
Here, an FBI agent supportably opined that disabling or
shutting down portions of Playpen "would have alerted [site users]
immediately to the FBI takeover." Before deciding to operate the
website for two weeks, the FBI assessed the pros and cons of its
operation and determined that its chosen path "outweighed the
option of just removing Playpen from existence and waiting until
another such website popped up 24 hours later." Among other
things, the FBI concluded that maintaining the website would allow
it to identify distributors of child pornography and rescue
children from abuse. The record also shows that the government
-11-
did not make any improvements to the website and that 49 children
were rescued from sexual exploitation as a result of the
government's two-week operation of the site. Finally, Anzalone's
decision to become a registered Playpen user and download child
pornography was his very own and not a result of the government's
design or coercion. See Santana, 6 F.3d at 5; compare with, United
States v. Chin, 934 F.2d 393, 398-99 (2d Cir. 1991) (noting that
successful outrageous government conduct claims usually arise out
of interference with the defendant's person); Huguez v. United
States, 406 F.2d 366, 381-82 (9th Cir. 1968) (finding that it was
outrageous conduct for the government to forcibly remove cocaine
packets from defendant's rectum). Therefore, after considering
the totality of the circumstances, we have no grounds to reverse
the denial of Anzalone's motion to dismiss the indictment.
IV.
For the foregoing reasons, the district court's judgment
is affirmed.
Affirmed.
-12-