United States v. Jeffrey Harney , 934 F.3d 502 ( 2019 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0195p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> No. 18-6010
v. │
│
│
JEFFREY W. HARNEY, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
No. 2:16-cr-00038-1—David L. Bunning, District Judge.
Argued: August 6, 2019
Decided and Filed: August 14, 2019
Before: SUTTON, GRIFFIN, and READLER, Circuit Judges.
_________________
COUNSEL
ARGUED: Steven D. Jaeger, THE JAEGER FIRM PLLC, Erlanger, Kentucky, for Appellant.
James T. Chapman, UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for
Appellee. ON BRIEF: Steven D. Jaeger, THE JAEGER FIRM PLLC, Erlanger, Kentucky, for
Appellant. James T. Chapman, Charles P. Wisdom, Jr., UNITED STATES ATTORNEY’S
OFFICE, Lexington, Kentucky, for Appellee.
_________________
OPINION
_________________
SUTTON, Circuit Judge. This case presents the latest installment in the government’s
investigation of a child pornography website called Playpen. As part of a nationwide
investigation into this website and as part of the nationwide search warrant that went with it, the
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government searched Jeffrey Harney’s computer and found illicit images. Harney moved to
suppress the evidence and asked the district court to require the United States to turn over all of
the background information related to its search. The district court denied both motions. Harney
pleaded guilty to receiving child pornography but reserved the right to appeal the denial of his
suppression and discovery motions. We affirm.
I.
In 2015, the Federal Bureau of Investigation gained control over Playpen, a large child
pornography website. Agents moved a controlled server containing a copy of the website to a
government building in Virginia and continued operating the site in hopes of nabbing its users.
The nature of the site complicated the government’s efforts. It uses “The Onion Router,” known
to insiders as Tor, which conceals users’ internet protocol addresses and other identifying
information.
Through a 33-page affidavit, the government sought a warrant that would identify the
individuals veiled behind the usernames. The proposed warrant, the affidavit explained, would
authorize additional instructions to the content that a computer automatically downloaded when
visiting the site. The added instructions would cause the user’s computer to send back seven
specific pieces of information about the computer, including the actual IP address. A magistrate
judge in the Eastern District of Virginia authorized the government to use the technique to search
any computer that logged into Playpen with a username and password over the next 30 days.
The technique worked. It identified several users of Playpen. One of them was Harney.
He created a Playpen profile and spent about an hour and 20 minutes on the site during the
window of observation. Harney viewed several images or videos of child pornography on the
site. The protocol captured Harney’s IP address, which allowed agents to get his physical
address from his internet provider.
Armed with that information, officers obtained a warrant to search Harney’s house.
During the search, Harney admitted he had downloaded child pornography onto his computer.
A forensic examination confirmed as much. Harney had 3,640 images, including 1,199 videos,
of child pornography on his computer.
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The government charged Harney with four counts of receiving and one count of
possessing child pornography. Harney moved to suppress the evidence, arguing that a warrant
authorizing such an investigation violated the Fourth Amendment. Harney also asked the court
to require the government to hand over all of the information about the technique. The district
court denied both motions. Even if the warrant violated the Fourth Amendment, it ruled, the
good-faith exception applied. And given the government’s willingness to produce some
information about the technique, it also ruled, Harney failed to show a legitimate need for the
rest.
Harney pleaded guilty to one count of receiving child pornography, 18 U.S.C.
§ 2252(a)(2), but reserved the right to appeal the adverse rulings on his two motions.
II.
Motion to suppress. The Fourth Amendment protects against “unreasonable searches and
seizures” and requires that warrants be based on “probable cause” and “particularly describ[e]
the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. When
officials violate those commands, courts ordinarily suppress the resulting evidence. See Mapp v.
Ohio, 367 U.S. 643, 648, 655 (1961). But because the Fourth Amendment by its terms and
history does not require exclusion, Davis v. United States, 564 U.S. 229, 236 (2011), courts will
not exclude evidence when the costs of suppression outweigh the benefits of deterrence, id. at
237, such as when reasonable officers rely on a magistrate’s warrant in good faith, United States
v. Leon, 468 U.S. 897, 919–21 (1984). That exception comes with an exception of its own. An
officer “cannot reasonably presume” that a “facially deficient” warrant is valid. Id. at 923.
The investigators acted in good faith in relying on this warrant. Special Agent Douglas
Macfarlane submitted a 33-page affidavit to the issuing magistrate, explaining the need for the
search and detailing how it would work. The warrant spelled out that the government could
search those computers that logged into Playpen with a username and password. And it listed
the seven items the government sought from each computer. When the magistrate granted the
warrant on the basis of all of this information, the officers were entitled to execute it.
Harney objects on several grounds.
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The warrant, he says, did not adequately describe the places the government would
search, as the government did not know where the searched computers would be located. But
that frequent reality of web-based searches does not transform the warrant into a general warrant,
which “specified only an offense” and left officers free to search or arrest anyone. Steagald v.
United States, 451 U.S. 204, 220 (1981). Far from the kind of general warrant at which the
particularity requirement takes aim, this warrant allowed the government to search only those
computers that logged into Playpen (a known child pornography website) with a username and
password after downloading software to access the site. The warrant thus sufficiently described
the place to be searched, saying all that reasonably could be said under the circumstances. Every
circuit court to address the question has answered it the same way. United States v. Levin, 874
F.3d 316, 322–23 (1st Cir. 2017); United States v. Werdene, 883 F.3d 204, 217 (3d Cir. 2018);
United States v. Henderson, 906 F.3d 1109, 1119 (9th Cir. 2018).
To the extent Harney means to argue that the agents could not rely on the warrant in good
faith because it allowed the government to search computers outside of the Eastern District of
Virginia, that does not work either. Our decision in United States v. Moorehead holds to the
contrary. 912 F.3d 963, 970–71 (6th Cir. 2019). And for good reason: In the aftermath of this
operation, the Federal Rules Committee amended Criminal Rule 41 to spell out that magistrates
could issue warrants in just this setting, further undermining any deterrent value of suppressing
such evidence. Fed. R. Crim. P. 41(b)(6); Moorehead, 912 F.3d at 971.
Trying to nudge outside Moorehead’s domain, Harney says it doesn’t apply because he
didn’t create his Playpen account until after the magistrate issued the warrant. But Harney never
offers any explanation why that distinction matters with respect to these types of warrants—all
designed to target future access to the website. Nor can we think of any such explanation.
Nothing in Moorehead itself, moreover, remotely suggests such a good-for-Tuesdays-but-not-
for-Wednesdays distinction.
Harney adds that Special Agent Macfarlane could not rely on the warrant because he did
not base the affidavit on personal knowledge. That is wrong on the facts and the law. Factually,
Macfarlane conveyed firsthand knowledge in the affidavit. He worked in the Bureau’s Violent
Crimes Against Children section, investigating child pornography offenses. And he based the
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affidavit in part on his “experience, training[,] and background.” R. 36 at 6. Legally, officers
need not base affidavits on their own knowledge or observations as long as the supporting facts
establish probable cause. United States v. Kinison, 710 F.3d 678, 682 (6th Cir. 2013).
Harney insists that investigators could not rely on the warrant in good faith because it
authorized illegal or outrageous conduct: the government’s continued operation of Playpen. In
limited circumstances, it’s true, we have suggested that the government’s investigative conduct
could be so conscience-shocking that it would violate due process. See, e.g., United States v.
Napier, 787 F.3d 333, 341 (6th Cir. 2015). “Suggested” and “could” are the key qualifiers. In
truth, we have never applied the defense. United States v. Al-Cholan, 610 F.3d 945, 952 (6th
Cir. 2010). The lack of readily discernible standards for applying such a defense, the frequency
of sting operations in all manner of criminal investigative settings, and the political (as opposed
to judicial) considerations underlying most such investigations all make this the kind of rare bird
that is much talked about but never seen. See United States v. Miller, 891 F.2d 1265, 1271–73
(7th Cir. 1989) (Easterbrook, J., concurring); see also Hampton v. United States, 425 U.S. 484,
490 (1976) (plurality) (rejecting the defense); United States v. Boyd, 55 F.3d 239, 241 (7th Cir.
1995) (same).
One could be forgiven for thinking we had already put the defense to rest in 1994 in
United States v. Tucker, 28 F.3d 1420 (6th Cir.). There, we held that a defendant could not
circumvent any restrictions on an inducement or entrapment defense by asserting a theory
sounding in due process. Id. at 1428. And there we didn’t offer any exceptions or convey any
doubt.
But since then we have been less categorical about the defense, leaving some sliver of
hope that one day, some day, the defense might apply. The outrageous-conduct defense calls to
mind the Lemon test, another “docile and useful monster” “worth keeping around” because “it is
so easy to kill” again and again. Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508
U.S. 384, 399 (1993) (Scalia, J., concurring in the judgment); see Lemon v. Kurtzman, 403 U.S.
602, 612–13 (1971).
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Even if we pretend once more that such a defense might exist, Harney did not establish
any basis for invoking it. The government after careful consideration made the difficult decision
to continue operating this website briefly. That had a downside (exposing the pictured children
to more harm) and an upside (apprehending individuals who fuel the demand for more child
pornography). See United States v. Anzalone, 923 F.3d 1, 5–6 (1st Cir. 2019). Lest all sting
operations be suppressed, this conduct does not require suppression of the evidence or dismissal
of the indictment.
Even so, Harney counters, we should suppress the evidence against him because the
government harmed child victims by keeping the site going. Harney is not an ideal spokesperson
for this position, and he is not a great candidate to profit from it. Yes, the government kept
Playpen going for a while longer. But Harney (and others) freely broke the law. To access the
site, Harney had to download the router’s software, enter Playpen’s exact web address, and
create a username and password to access the content. Why should we throw away the evidence
that he violated child pornography laws because the government’s decision to employ the
technique meant that more criminals might view the images too? We see no good reason. See
United States v. Kienast, 907 F.3d 522, 530–31 (7th Cir. 2018).
United States v. Sherman does not say otherwise. 268 F.3d 539 (7th Cir. 2001). It noted
in dicta that child pornography harms children, no matter who disseminates it or why. Id. at
548–50. No one doubts that. But the government’s complex and carefully considered decision
to continue operating Playpen for a brief period of time to catch the individuals who create the
demand for more of this material (and thus the creation of more victims) did not violate due
process. See Anzalone, 923 F.3d at 5–6.
Neither did the government violate 18 U.S.C. § 3509(m) by maintaining the website.
That provision prohibits reproducing child pornography “in any criminal proceeding.”
An investigation is not a criminal proceeding.
Motion for discovery. Harney asked the district court to make the government turn over
all of the information about the network investigative technique. The protocol had several
components: the instructions sent to the computer, the data stream between Harney’s computer
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and the government’s, the code used to create identifiers for Harney’s information, the code used
to infiltrate Tor, and the server tool used to store the intelligence from Harney’s computer. The
government gave Harney a copy of the information it got from his computer and said it would
provide the instructions sent to Harney’s computer, the data stream between the computers, and
an offline copy of Playpen’s website. That was not enough, Harney claims; the government
should turn over every piece of this information.
Criminal Rule 16 requires the United States to provide a defendant copies of data and
documents in its possession if, as relevant here, that information “is material to preparing the
defense.” Fed. R. Crim. P. 16(a)(1)(E). That means Harney must show, with more than
conclusory arguments, United States v. Phillip, 948 F.2d 241, 250 (6th Cir. 1991), that the
information will help him combat the government’s case against him as to one of the charged
crimes, United States v. Armstrong, 517 U.S. 456, 462 (1996). Where, as here, the government
seeks to protect the information as privileged, we balance the parties’ respective interests.
United States v. Pirosko, 787 F.3d 358, 365 (6th Cir. 2015). That requires Harney at a minimum
to “produce some evidence of government wrongdoing” to get the data. Id. at 366. We review
the district court’s decision for an abuse of discretion. Id. at 365.
No abuse of discretion occurred. Harney has not shown that the government engaged in
wrongdoing (the only way the evidence could help his defense) in employing the technique. He
commissioned an expert to evaluate the technique, but the expert could not identify any errors in
the government’s efforts. Nor did Harney to our knowledge try to use the information the United
States offered to give him to show that the technique didn’t operate as expected. That leaves us
with nothing more than conjecture about what the additional evidence might show. As against
the government’s interest in keeping the non-case-specific data under wraps so that would-be
criminals cannot thwart future government operations, Harney thus comes up short.
But, Harney retorts, he can’t know what might have gone wrong with the technique until
he can evaluate all of its components. Harney worries the government may not have stored the
information from his computer properly or that the technique might have allowed third parties to
put images on his computer. While those may be valid concerns in general, Harney has not
shown a problem with them here, at least not one that overrides the government’s interest in
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keeping the generic components of the technique secret. The government offered to give Harney
the instructions it sent to his computer and the data stream between his computer and the
government’s. That would have allowed Harney to compare the information the government
found on his computer and had already produced in discovery with the information the
government obtained from his computer using the network investigative technique. And it
would have given Harney the chance to argue that he hadn’t viewed or downloaded the images.
If Harney had identified any issues along those lines, this might be a different case. But he made
no use of what the government offered. The district court did not abuse its discretion by
excusing the government from providing even more of this information without some evidence
to support Harney’s argument.
For these reasons, we affirm.