United States v. Anzalone
Opinion
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
,
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
*3
judge in the Eastern District of Virginia authorizing it to deploy the NIT.
Technicalities aside, the NIT allowed the FBI to identify Playpen users when they entered their credentials to access the website.
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
,
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
,
*4
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.
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
,
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
*5
with their legs spread apart") was insufficient to establish probable cause. He also insists that some allegations in the affidavit -- such as that 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
,
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
,
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] ... the universal sense of justice."
United States
v.
Russell
,
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
,
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 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
,
IV.
For the foregoing reasons, the district court's judgment is affirmed.
Affirmed .
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.
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
,
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.
Reference
- Full Case Name
- UNITED STATES of America, Appellee, v. Vincent ANZALONE, Defendant, Appellant.
- Cited By
- 16 cases
- Status
- Published