United States v. Apple Macpro Computer Apple Ma ( 2017 )


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  •                                     PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    No. 15-3537
    _____________
    UNITED STATES OF AMERICA
    v.
    APPLE MACPRO COMPUTER,
    APPLE MAC MINI COMPUTER,
    APPLE I PHONE 6 PLUS,
    ELLULAR TELEPHONE WESTERN DIGITAL
    MY BOOK FOR MAC EXTERNAL HARD DRIVE,
    Western Digital My Book Velociraptor Duo External
    Hard Drive
    *John Doe,
    Appellant
    *(Pursuant to Rule 12(a), Fed. R. App. P.)
    _____________
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. No. 15-mj-00850-001)
    District Judge: Hon. L. Felipe Restrepo
    _____________
    Argued September 7, 2016
    Before:   JORDAN, VANASKIE, and NYGAARD,
    Circuit Judges.
    (Filed: March 20, 2017)
    Keith M. Donoghue            [ARGUED]
    Brett G. Sweitzer
    Leigh M. Skipper
    Federal Community Defender Office
    for the Eastern District of Pennsylvania
    601 Walnut Street, Suite 540 West
    Philadelphia, PA 19106
    Counsel for Defendant-Appellant
    Christopher C. Walsh
    Adam Schwartz
    Mark Rumold                [ARGUED]
    Andrew Crocker
    Electronic Frontier Foundation
    815 Eddy Street
    San Francisco, CA 94109
    Counsel for Amicus Curiae
    Leslie Caldwell
    Nathan Judish               [ARGUED]
    Bernadette McKeon
    Michelle Rotella
    Office of the United States Attorney
    615 Chestnut Street, Suite 1250
    Philadelphia, PA 19106
    2
    Counsel for Plaintiff-Appellee
    ______________
    OPINION
    ______________
    VANASKIE, Circuit Judge.
    This appeal concerns the Government’s ability to
    compel the decryption of digital devices when the
    Government seizes those devices pursuant to a valid search
    warrant. The District Court found Appellant John Doe in
    civil contempt for refusing to comply with an order issued
    pursuant to the All Writs Act, 28 U.S.C. § 1651, which
    required him to produce several seized devices in a fully
    unencrypted state. Doe contends that the court did not have
    subject matter jurisdiction to issue the order and that the order
    itself violates his Fifth Amendment privilege against self-
    incrimination. For the reasons that follow, we will affirm the
    District Court’s order.
    I.
    During an investigation into Doe’s access to child
    pornography over the internet, the Delaware County Criminal
    Investigations Unit executed a valid search warrant at Doe’s
    residence. During the search, officers seized an Apple iPhone
    5S and an Apple Mac Pro Computer with two attached
    Western Digital External Hard Drives, all of which had been
    3
    protected with encryption software.1 Police subsequently
    seized a password-protected Apple iPhone 6 Plus as well.
    Agents from the Department of Homeland Security
    then applied for a federal search warrant to examine the
    seized devices. Doe voluntarily provided the password for
    the Apple iPhone 5S, but refused to provide the passwords to
    decrypt the Apple Mac Pro computer or the external hard
    drives. Despite Doe’s refusal, forensic analysts discovered
    the password to decrypt the Mac Pro Computer, but could not
    decrypt the external hard drives. Forensic examination of the
    Mac Pro revealed an image of a pubescent girl in a sexually
    provocative position and logs showing that the Mac Pro had
    been used to visit sites with titles common in child
    exploitation, such as “toddler_cp,” “lolicam,” “tor-childporn,”
    1
    Encryption technology allows a person to transform
    plain, understandable information into unreadable letters,
    numbers, or symbols using a fixed formula or process. Only
    those who possess a corresponding “key” can return the
    information into its original form, i.e. decrypt that
    information. Encrypted information remains on the device in
    which it is stored, but exists only in its transformed,
    unintelligible format. Although encryption may be used to
    hide illegal material, it also assists individuals and businesses
    in lawfully safeguarding the privacy and security of
    information. Many new devices include encryption tools as
    standard features, and many federal and state laws either
    require or encourage encryption to protect sensitive
    information.
    4
    and “pthc.”2 (App. 39.) The Forensic examination also
    disclosed that Doe had downloaded thousands of files known
    by their “hash” values to be child pornography.3 The files,
    however, were not on the Mac Pro, but instead had been
    stored on the encrypted external hard drives. Accordingly,
    the files themselves could not be accessed.
    As part of their investigation, the Delaware County
    law enforcement officers also interviewed Doe’s sister, who
    had lived with Doe during 2015. She related that Doe had
    shown her hundreds of images of child pornography on the
    encrypted external hard drives. She told the investigators that
    2
    According to the affidavit submitted in support of the
    federal Government’s search warrant application, “cp” stands
    for “child pornography” and “pthc” stands for “’pre-teen hard
    core.” (App. 39.)
    3
    A “hash” is “[a] mathematical algorithm that
    calculates a unique value for a given set of data, similar to a
    digital fingerprint, representing the binary content of the data
    to assist in subsequently ensuring that data has not been
    modified.” The Sedona Conference Glossary for E-Discovery
    and Digital Information Management 21 (Cheryl B. Harris, et
    al. eds., 4th ed. 2014). Hash values are commonly used in
    child pornography investigations. See, e.g., United States v.
    Ross, 
    837 F.3d 85
    , 87 (1st Cir. 2014), United States v.
    Ackerman, 
    831 F.3d 1292
    , 1294 (10th Cir. 2016); United
    States v. Thomas, 
    788 F.3d 345
    , 348 n. 5 (2nd Cir. 2015);
    United States v. Brown, 
    701 F.3d 120
    , 122 (4th Cir. 2012);
    United States v. Cunningham, 
    694 F.3d 372
    , 376 (3d Cir.
    2012; United States v. Cartier, 
    543 F.3d 442
    , 444-45 (8th Cir.
    2008).
    5
    the external hard drives included “videos of children who
    were nude and engaged in sex acts with other children.”
    (App. 40.) Doe provided the password to access the iPhone 6
    Plus, but did not grant access to an application on the phone
    which contained additional encrypted information. Forensic
    analysts concluded that the phone’s encrypted database
    contained approximately 2,015 image and video files.
    On August 3, 2015, upon application of the
    Government, a Magistrate Judge issued an order pursuant to
    the All Writs Act requiring Doe to produce his iPhone 6 Plus,
    his Mac Pro computer, and his two attached external hard
    drives in a fully unencrypted state (the “Decryption Order”).
    Doe did not appeal the Decryption Order. Instead, he filed
    with the Magistrate Judge a motion to quash the
    Government’s application to compel decryption, arguing that
    his act of decrypting the devices would violate his Fifth
    Amendment privilege against self-incrimination.
    On August 27, 2015, the Magistrate Judge denied
    Doe’s Motion to Quash and directed Doe to fully comply
    with the Decryption Order (the “Quashal Denial”). The
    Magistrate Judge acknowledged Doe’s Fifth Amendment
    objection but held that, because the Government possessed
    Doe’s devices and knew that their contents included child
    pornography, the act of decrypting the devices would not be
    testimonial for purposes of the Fifth Amendment privilege
    against self-incrimination. The Quashal Denial stated that a
    failure to file timely objections could result in the waiver of
    appellate rights. Doe did not file any objections to the
    Quashal Denial and did not seek review by way of appeal,
    writ of mandamus, or otherwise.
    6
    Approximately one week after the Quashal Denial,
    Doe and his counsel appeared at the Delaware County Police
    Department for the forensic examination of his devices. Doe
    produced the Apple iPhone 6 Plus, including the files on the
    secret application, in a fully unencrypted state by entering
    three separate passwords on the device. The phone contained
    adult pornography, a video of Doe’s four-year-old niece in
    which she was wearing only her underwear, and
    approximately twenty photographs which focused on the
    genitals of Doe’s six-year-old niece. Doe, however, stated
    that he could not remember the passwords necessary to
    decrypt the hard drives and entered several incorrect
    passwords during the forensic examination. The Government
    remains unable to view the decrypted content of the hard
    drives without his assistance.
    Following the forensic examination, the Magistrate
    Judge granted the Government’s Motion for Order to Show
    Cause Why Doe Should Not Be Held in Contempt, finding
    that Doe willfully disobeyed and resisted the Decryption
    Order. Based on the evidence presented at the hearing, the
    Magistrate Judge found that Doe remembered the passwords
    needed to decrypt the hard drives but chose not to reveal them
    because of the devices’ contents. The Magistrate Judge
    ordered Doe to appear before the District Court to show cause
    as to why he should not be held in civil contempt.
    On September 30, 2015, after a hearing, the District
    Court granted the Government’s motion to hold Doe in civil
    contempt. On October 5, 2015, the District Court issued a
    “Supplemental Order to articulate the reasons for its
    September 30th Order.” (App. at 12.) The District Court
    noted that the Government’s prima facie case of contempt
    was largely, if not entirely, uncontested.     While the
    7
    Government presented several witnesses to support its
    motion, Doe neither testified nor called witnesses. He offered
    no physical or documentary evidence into the record and
    provided no explanation for his failure to comply with the
    Decryption Order. The District Court remanded Doe to the
    custody of the United States Marshals to be incarcerated until
    he fully complies with the Decryption Order. This timely
    appeal followed.
    II.
    We have appellate jurisdiction under 28 U.S.C. §
    1291. We ordinarily exercise plenary review over the District
    Court’s authority to issue an order pursuant to the All Writs
    Act, Grider v. Keystone Health Plan Cent., Inc., 
    500 F.3d 322
    , 327 (3d Cir. 2007), and “review a district court’s
    decision on a motion for contempt for abuse of discretion.”
    Marshak v. Treadwell, 
    595 F.3d 478
    , 485 (3d Cir. 2009).
    However, when the party seeking review has failed to
    preserve the issue in the trial court, we review only for plain
    error. See Brightwell v. Lehman, 
    637 F.3d 187
    , 193 (3d Cir.
    2011); Nara v. Frank, 
    488 F.3d 187
    , 194 (3d Cir. 2007). We
    nonetheless exercise plenary review over challenges
    concerning subject matter jurisdiction. United States v.
    Merlino, 
    785 F.3d 79
    , 82 (3d Cir. 2015).
    III.
    Doe raises two primary arguments as to why he should
    not be held in contempt. First, he asserts that the District
    Court lacked subject matter jurisdiction to issue the
    Decryption Order under the All Writs Act. Thus, he argues
    that he is not in contempt of any valid order and the judgment
    of contempt must be vacated. Second, Doe contends that the
    8
    Decryption Order violates his Fifth Amendment privilege
    against self-incrimination.
    A.
    Doe’s first challenge concerns the All Writs Act,
    which permits federal courts to “issue all writs necessary or
    appropriate in aid of their respective jurisdictions and
    agreeable to the usages and principles of law.” 28 U.S.C. §
    1651(a). The All Writs Act does not itself confer any subject
    matter jurisdiction, but rather only allows a federal court to
    issue writs “in aid of” its existing jurisdiction. Clinton v.
    Goldsmith, 
    526 U.S. 529
    , 534 (1999); Sygenta Crop Prot.,
    Inc. v. Henson, 
    537 U.S. 28
    , 31 (2002); see also In re
    Arunachalum, 
    812 F.3d 290
    , 292 (3d Cir. 2016) (per curiam).
    Therefore, a court has subject matter jurisdiction over an
    application for an All Writs Act order only when it has
    subject matter jurisdiction over the underlying order that the
    All Writs Act order is intended to effectuate. Additionally, a
    federal court may only issue an All Writs Act order “as may
    be necessary or appropriate to effectuate and prevent the
    frustration of orders it has previously issued in its exercise of
    jurisdiction otherwise obtained.” United States v. N.Y. Tel.
    Co., 
    434 U.S. 159
    , 172 (1977).
    Doe contends that the Magistrate Judge did not have
    subject matter jurisdiction to issue the Decryption Order
    because the Government should have compelled his
    compliance by means of the grand jury procedure and not the
    All Writs Act. The grand jury process, however, is not the
    exclusive means by which the Government may collect
    evidence prior to indictment. See Zurcher v. Stanford Daily,
    
    436 U.S. 547
    , 559 (1978) (allowing the Government to
    proceed by search warrant despite insistence that the
    9
    investigation should proceed by subpoena); United States v.
    Educ. Dev. Network Corp., 
    884 F.2d 737
    , 743 (3d Cir. 1989)
    (rejecting the argument that the Government could not obtain
    evidence by means of a search warrant and must proceed
    solely by grand jury). Here, the Magistrate Judge had subject
    matter jurisdiction under Federal Rule of Criminal Procedure
    41 to issue a search warrant4 and therefore had jurisdiction to
    issue an order under the All Writs Act that sought “to
    effectuate and prevent the frustration” of that warrant. United
    States v. N.Y. Tel. Co., 
    434 U.S. 159
    , 172 (1977).
    In arguing that the Magistrate Judge did not have
    subject matter jurisdiction to issue the Decryption Order, Doe
    also challenges the merits of that order, contending that it was
    not a “necessary and appropriate means” of effectuating the
    original warrant as required by the Supreme Court in New
    York Telephone. A contempt proceeding, however, generally
    “‘does not open to reconsideration the legal or factual basis of
    the order alleged to have been disobeyed.’”5 United States v.
    4
    Doe does not dispute the validity of the underlying
    search warrant issued by a Magistrate Judge under Fed. R.
    Crim. P. 41.
    5
    There are, of course, instances when a contempt
    proceeding may be the only avenue for challenging the
    underlying order to produce information. For example,
    judicial review of a grand jury subpoena may be obtained
    only by refusal to comply with the subpoena, with the validity
    of the subpoena being litigated in the ensuing contempt
    proceeding. See, e.g., United States v. Ryan, 
    402 U.S. 530
    ,
    532-33 (1971) (“[W]e have consistently held that the
    necessity for expedition in the administration of the criminal
    10
    Rylander, 
    460 U.S. 752
    , 756 (1983) (quoting Maggio v. Zeitz,
    
    333 U.S. 56
    , 69 (1948)); In re Contemporary Apparel, Inc.,
    
    488 F.2d 794
    , 798 (3d Cir. 1973) (same). Furthermore, Doe
    did not argue in the District Court that the Decryption Order
    was not an appropriate exercise of authority under the All
    Writs Act. Thus, even if the propriety of the Decryption
    Order was before us, our review would be limited to plain
    error. 
    Brightwell, 637 F.3d at 193
    . Under this framework, an
    appellant must show four elements: “(1) there is an ‘error’;
    (2) the error is ‘clear or obvious, rather than subject to
    reasonable dispute’; (3) the error ‘affected the appellant’s
    substantial rights, which in the ordinary case means’ it
    ‘affected the outcome of the district court proceedings’; and
    (4) ‘the error seriously affect[s] the fairness, integrity or
    public reputation of judicial proceedings.’” United States v.
    Marcus, 
    560 U.S. 258
    , 262 (2010) (quoting Puckett v. United
    States, 
    556 U.S. 129
    , 135 (2009)).
    In New York Telephone, the district court had issued an
    order authorizing federal agents to install pen registers in two
    telephones and directed the New York Telephone Company
    law justifies putting one who seeks to resist the production [to
    a grand jury] of desired information to a choice between
    compliance with a trial court’s order to produce prior to any
    review of that order, and resistance to that order with the
    concomitant possibility of an adjudication of contempt if his
    claims are rejected on appeal.”); In re Grand Jury Subpoena,
    
    709 F.3d 1027
    , 1029 (10th Cir. 2013)(“A protesting [grand
    jury] witness may seek appellate review only after he refuses
    to obey the subpoena and is held in contempt.”).
    11
    to furnish “all information, facilities and technical assistance”
    necessary to accomplish the installation. N.Y. Tel. 
    Co., 434 U.S. at 161
    . The Company argued that neither Fed. R. Crim.
    P. 41 nor the All Writs Act “provided any basis for such an
    order.” 
    Id. at 163.
    The Supreme Court, however, found that
    this order was “clearly authorized by the All Writs Act” as a
    necessary and appropriate means of effectuating the
    installation of the pen registers. 
    Id. at 172.
    Here, the Magistrate Judge issued a search warrant for
    the devices seized at Doe’s residence.           When law
    enforcement could not decrypt the contents of those devices,
    and Doe refused to comply, the Magistrate Judge issued the
    Decryption Order pursuant to the All Writs Act. The
    Decryption Order required Doe to “assist the Government in
    the execution of the…search warrant” by producing his
    devices in “a fully unencrypted state.” As was the case in
    New York Telephone, the Decryption Order here was a
    necessary and appropriate means of effectuating the original
    search warrant.
    Doe asserts that New York Telephone should not apply
    because the All Writs Act order in that case compelled a third
    party to assist in the execution of that warrant, and not the
    target of the government investigation. The Supreme Court
    explained, however, that the Act extends to anyone “in a
    position to frustrate the implementation of a court order or the
    proper administration of justice” as long as there are
    “appropriate circumstances” for doing so. 
    Id. at 174.
    Here,
    as in New York Telephone: (1) Doe is not “far removed from
    the underlying controversy;” (2) “compliance with [the
    Decryption Order] require[s] minimal effort;” and (3)
    “without [Doe’s] assistance there is no conceivable way in
    which the [search warrant] authorized by the District Court
    12
    could [be] successfully accomplished.” 
    Id. at 174-175.
    Accordingly, the Magistrate Judge did not plainly err in
    issuing the Decryption Order.
    B.
    Doe also contends that the Decryption Order violates
    his Fifth Amendment privilege against self-incrimination and
    that this challenge is subject to plenary review. Doe raised a
    Fifth Amendment challenge in his Motion to Quash the
    Decryption Order.        The Magistrate Judge denied that
    challenge, rejecting the argument that Doe’s Fifth
    Amendment privilege would be violated. Doe did not file
    objections to that order, nor did he seek review by way of
    appeal, writ of mandamus or otherwise, despite the Quashal
    Denial order informing Doe that failure to file a timely
    objection may constitute a waiver of appellate rights. Doe
    also did not renew this self-incrimination claim during the
    contempt proceedings before the Magistrate Judge and the
    District Judge.6 Instead, Doe only reasserted his Fifth
    Amendment claim in this appeal.
    While Doe persists that his challenge to the contempt
    order entitles him to plenary consideration of the Fifth
    Amendment issue, we disagree. As noted above, it is
    6
    In its Order explaining the contempt ruling, the
    District Judge observed that Doe had failed to object to the
    Magistrate Judge’s determination that Doe’s Fifth
    Amendment rights were not violated by the Decryption Order
    despite being warned that such failure “may constitute a
    waiver of appellate rights.” (App. at 15 (citing United States
    v. Polishan, 
    336 F.3d 234
    , 240 (3d Cir. 2003).) Thus, the
    District Court did not address the Fifth Amendment issue.
    13
    generally the case that “a contempt proceeding does not open
    to reconsideration the legal or factual basis of the order
    alleged to have been disobeyed.” 
    Rylander, 460 U.S. at 756
    (internal quotation marks and citation omitted).
    Even if we could assess the Fifth Amendment decision
    of the Magistrate Judge, our review would be limited to plain
    error. See United States v. Schwartz, 
    446 F.2d 571
    , 576 (3d
    Cir. 1971) (applying plain error review to unpreserved claim
    of violation of privilege against self-incrimination). Doe’s
    arguments fail under this deferential standard of review.
    The Fifth Amendment states that “[n]o person…shall
    be compelled in any criminal case to be a witness against
    himself.” U.S. CONST. amend. V. The Fifth Amendment,
    however, “does not independently proscribe the compelled
    production of every sort of incriminating evidence but applies
    only when the accused is compelled to make a Testimonial
    Communication that is incriminating.” Fisher v. United
    States, 
    425 U.S. 391
    , 408 (1976). To be testimonial, a
    communication must either “explicitly or implicitly . . . relate
    a factual assertion or disclose information.” Doe v. United
    States, 
    487 U.S. 201
    , 210 (1988).
    The Supreme Court has recognized that in some
    instances, the production of evidence can implicate the Fifth
    Amendment. In Fisher, the Court stated that “[t]he act of
    producing evidence in response to a subpoena . . . has
    communicative aspects of its own, wholly aside from the
    contents of the papers 
    produced.” 425 U.S. at 410
    . The
    Court reasoned that compliance with a request for evidence
    may “tacitly concede[ ] the existence of the documents
    demanded and their possession and control by the
    [defendant].”     
    Id. By “producing
    documents, one
    14
    acknowledges that the documents exist, admits that the
    documents are in one’s custody, and concedes that the
    documents are those that the [Government] requests.” United
    States v. Chabot, 
    793 F.3d 338
    , 342 (3d Cir.), cert. denied,
    
    136 S. Ct. 559
    (2015). When the production of evidence does
    concede the existence, custody, and authenticity of that
    evidence, the Fifth Amendment privilege against self-
    incrimination applies because that production constitutes
    compelled testimony.
    In Fisher, however, the Court also articulated the
    “foregone conclusion” rule, which acts as an exception to the
    otherwise applicable act-of-production doctrine. 
    Fisher, 425 U.S. at 411
    . Under this rule, the Fifth Amendment does not
    protect an act of production when any potentially testimonial
    component of the act of production—such as the existence,
    custody, and authenticity of evidence—is a “foregone
    conclusion” that “adds little or nothing to the sum total of the
    Government’s information.” 
    Id. For the
    rule to apply, the
    Government must be able to “describe with reasonable
    particularity” the documents or evidence it seeks to compel.
    
    Hubbell, 530 U.S. at 30
    .
    Although we have not confronted the Fifth
    Amendment implications of compelled decryption, the
    Eleventh Circuit has addressed the issue and found that the
    privilege against self-incrimination should apply. In that
    case, a suspect appealed a judgment of contempt entered after
    he refused to produce the unencrypted contents of his laptop
    and hard drives. In re Grand Jury Subpoena Duces Tecum
    Dated Mar. 25, 2011, 
    670 F.3d 1335
    , 1337 (11th Cir. 2012).
    The court found that “(1) [the suspect’s] decryption and
    production of the contents of the drives would be testimonial,
    not merely a physical act; and (2) the explicit and implicit
    15
    factual communications associated with the decryption and
    production are not foregone conclusions.” 
    Id. at 1346.
    The
    court reached this decision after noting that the Government
    did not show whether any files existed on the hard drives and
    could not show with any reasonable particularity that the
    suspect could access the encrypted portions of the drives. 
    Id. Although the
    court did not require the Government to identify
    exactly the documents it sought, it did require that, at the very
    least, the Government be able to demonstrate some
    knowledge that files do exist on the encrypted devices. 
    Id. at 1348–49.
    Despite Doe’s argument to the contrary, the Eleventh
    Circuit’s reasoning in In re Grand Jury Subpoena does not
    compel a similar result here. In the Quashal Denial, the
    Magistrate Judge found that, though the Fifth Amendment
    may be implicated by Doe’s decryption of the devices, any
    testimonial aspects of that production were a foregone
    conclusion. According to the Magistrate Judge, the affidavit
    supporting the application for the search warrant established
    that (1) the Government had custody of the devices; (2) prior
    to the seizure, Doe possessed, accessed, and owned all
    devices; and (3) there are images on the electronic devices
    that constitute child pornography. Thus, the Magistrate Judge
    concluded that the Decryption Order did not violate Doe’s
    Fifth Amendment privilege against self-incrimination.
    Unlike In re Grand Jury Subpoena, the Government
    has provided evidence to show both that files exist on the
    encrypted portions of the devices and that Doe can access
    them. The affidavit supporting the search warrant states that
    an investigation led to the identification of Doe as a user of an
    internet file sharing network that was used to access child
    pornography. When executing a search of Doe’s residence,
    16
    forensic analysts found the encrypted devices, and Doe does
    not dispute their existence or his ownership of them. Once
    the analysts accessed Doe’s Mac Pro Computer, they found
    one image depicting a pubescent girl in a sexually suggestive
    position and logs that suggested the user had visited groups
    with titles common in child exploitation. Doe’s sister then
    reported that she had witnessed Doe unlock his Mac Pro
    while connected to the hard drives to show her hundreds of
    pictures and videos of child pornography. Forensic analysts
    also found an additional 2,015 videos and photographs in an
    encrypted application on Doe’s phone, which Doe had opened
    for the police by entering a password. Based on these facts,
    the Magistrate Judge found that, for the purposes of the Fifth
    Amendment, any testimonial component of the production of
    decrypted devices added little or nothing to the information
    already obtained by the Government. The Magistrate Judge
    determined that any testimonial component would be a
    foregone conclusion. The Magistrate Judge did not commit a
    clear or obvious error in his application of the foregone
    conclusion doctrine. In this regard, the Magistrate Judge
    rested his decision rejecting the Fifth Amendment challenge
    on factual findings that are amply supported by the record.7
    7
    It is important to note that we are not concluding that
    the Government’s knowledge of the content of the devices is
    necessarily the correct focus of the “foregone conclusion”
    inquiry in the context of a compelled decryption order.
    Instead, a very sound argument can be made that the foregone
    conclusion doctrine properly focuses on whether the
    Government already knows the testimony that is implicit in
    the act of production. In this case, the fact known to the
    government that is implicit in the act of providing the
    password for the devices is "I, John Doe, know the password
    17
    Accordingly, Doe’s challenges to the Decryption Order and
    Quashal Denial fail.
    So, too, does Doe’s challenge to the contempt order.
    At the hearing on the contempt motion, Doe maintained that
    he could not remember the passwords to decrypt the hard
    drives. In a civil contempt proceeding, when a defendant
    raises a challenge of impossibility of compliance, “the
    defendant bears the burden of production.” United States v.
    Rylander, 
    460 U.S. 752
    , 757 (1983). At the contempt
    hearing, the Government presented several witnesses to
    support its prima facie case of contempt. Doe’s sister
    testified to the fact that, while in her presence, Doe accessed
    child pornography files on his Mac Pro computer by means of
    entering passwords from memory. Further, a detective who
    executed the original search warrant stated that Doe did not
    provide his password at the time because he wanted to
    prevent the police from accessing his computer. Doe never
    asserted an inability to remember the passwords at that time.
    Doe presented no evidence to explain his failure to comply or
    for these devices." Based upon the testimony presented at the
    contempt proceeding, that fact is a foregone conclusion.
    However, because our review is limited to plain error, and no
    plain error was committed by the District Court in finding
    that the Government established that the contents of the
    encrypted hard drives are known to it, we need not decide
    here that the inquiry can be limited to the question of whether
    Doe’s knowledge of the password itself is sufficient to
    support application of the foregone conclusion doctrine.
    18
    to challenge the evidence brought by the Government. The
    District Court thus found Doe in contempt and ordered he be
    held in custody until he complies with the Decryption Order.
    The District Court did not abuse its discretion in finding Doe
    to be in contempt of the Decryption Order.
    IV.
    For the foregoing reasons, we will affirm the District
    Court’s order of September 30, 2015 holding Appellant John
    Doe in civil contempt.
    19