United States v. Cookson
Opinion
Daniel Eugene Cookson pleaded guilty to two counts of possessing child pornography after the FBI identified him in the course of its large-scale sting operation involving the website "Playpen." At his sentencing hearing, the district court determined Mr. Cookson's criminal history and total offense level correlated to a Guidelines range of 97-121 months. The district court announced its intention to sentence Mr. Cookson to a term of seventy-two months' imprisonment. But after entertaining argument from both parties and inviting Mr. Cookson's allocution, the district court imposed a sentence of five years' probation.
The United States appealed, challenging Mr. Cookson's sentence as substantively unreasonable. Mr. Cookson cross-appealed, arguing the district court erred in refusing to suppress evidence obtained from his computer by the FBI pursuant to a warrant issued in the Eastern District of Virginia
We affirm the district court's suppression ruling based on our decision involving the same warrant in
United States v. Workman
,
I. BACKGROUND
A. Search and Seizure
In 2015, the FBI tracked down and arrested the operator of Playpen, a website that facilitated the distribution of child pornography. Instead of discontinuing Playpen's operations, however, the FBI decided to use the site to locate individuals using it to access child pornography.
Workman
,
Finding Playpen's users presented a challenge because Playpen was accessible
*1083
only through "Tor" (short for "The Onion Router"), a network and software program designed to allow users to browse the internet anonymously.
To bypass the steps Playpen took to keep its users anonymous, the FBI, after seizing control of the website, loaded Playpen's contents-pornography and all-onto a government server in the Eastern District of Virginia.
Workman
,
In the normal course of operation, websites send content to visitors. A user's computer downloads that content and uses it to display web pages on the user's computer. Under the NIT authorized by this warrant, the TARGET WEBSITE [Playpen], which will be located in Newington, Virginia, in the Eastern District of Virginia, would augment that content with additional computer instructions. When a user's computer successfully downloads those instructions from [Playpen] ... the instructions, which comprise the NIT, are designed to cause the user's ... computer to transmit certain information [including IP addresses] to a computer controlled by or known to the government. ... The NIT will not deny the user ... access to any data or the functionality of the user's computer.
App. at 342-43. Essentially, when someone logged in to Playpen by entering a username and password, the NIT would cause that person's computer to transmit identifying information (including the user's IP address) to the FBI. A magistrate judge in the Eastern District of Virginia signed the warrant, and the FBI operated Playpen with the NIT for approximately two weeks. 1
On February 22, 2015, someone with the username "shishkabobs" logged into Playpen. Shishkabobs's computer downloaded the NIT, causing it to transmit identifying information to the FBI. Using this identifying information, the government sought an administrative subpoena for the Southern Kansas Telephone Company to identify the physical address associated with the IP address obtained from shiskabobs's computer. Based on information received from the Southern Kansas Telephone Company, the FBI connected shiskabobs's IP address to a home Mr. Cookson shared with his parents and brother in Howard, Kansas. The FBI obtained and executed a search warrant for this home, where they found child pornography on various devices owned by Mr. Cookson. Mr. Cookson later confessed to using Playpen to view child pornography.
*1084
The government charged Mr. Cookson with two counts of possessing child pornography under 18 U.S.C. § 2252A(a)(5)(B). Mr. Cookson moved to suppress all evidence derived from the operation of the NIT on his computer, arguing the magistrate judge in the Eastern District of Virginia lacked authority to issue the NIT warrant and the warrant therefore violated the Fourth Amendment. Specifically, Mr. Cookson argued that magistrate judges generally may not issue warrants for the search of persons or property outside of their district.
See
The district court denied the suppression motion. The court observed that the same NIT warrant in Mr. Cookson's case had been considered by many other trial courts across the country. Most of these courts found the magistrate judge who issued the NIT warrant lacked the authority to do so, yet they declined to suppress evidence obtained as a result of the NIT under the good-faith exception.
See, e.g.
,
United States v. Ammons
,
Here, the district court agreed that the Eastern District of Virginia magistrate judge exceeded her authority in issuing the NIT warrant but determined Workman governed the outcome of Mr. Cookson's case. Accordingly, the court applied the good-faith exception and denied Mr. Cookson's suppression motion.
B. Sentencing
After the district court denied his motion to suppress, Mr. Cookson entered into a plea agreement as to both counts of the indictment. As relevant here, the plea agreement set forth Mr. Cookson's understanding that his plea entailed a maximum sentence of twenty years' imprisonment, various fines and assessments, and a minimum of five years' supervised release. Mr. Cookson and the government also agreed to a conditional plea allowing Mr. Cookson to appeal the district court's suppression decision. The government agreed that Mr. Cookson could remain on bond (under conditions of supervision) pending resolution of his appeal.
Prior to sentencing, Mr. Cookson's probation officer prepared a Presentence Investigation Report ("PSR"). The PSR calculated *1085 Mr. Cookson's base offense level as 18. This base offense level increased to 28 due to a number of adjustments pursuant to U.S.S.G. § 2G2.2, including a two-level increase under U.S.S.G. § 2G2.2(b)(2) because the material involved a prepubescent minor; a four-level increase under U.S.S.G. § 2G2.2(b)(4) because the material involved sadistic or masochistic conduct or other depictions of violence; a two-level increase under U.S.S.G. § 2G2.2(b)(6) because the offense involved the use of a computer, and a five-level increase under U.S.S.G. § 2G2.2(b)(7)(D) because Mr. Cookson possessed more than 600 images of child pornography. The PSR also listed Mr. Cookson's adult criminal convictions, which resulted in a criminal history score of six and placed him in a criminal history category of III.
Based on an offense level of 28 and a criminal history category of III, the PSR calculated a Guidelines range for Mr. Cookson of 97-121 months' imprisonment. Mr. Cookson's convictions entail a maximum term of imprisonment of twenty years, and a minimum term of five years' supervised release.
The parties filed sentencing memoranda. The United States requested a sentence of ninety-seven months' imprisonment followed by five years' supervised release, emphasizing Mr. Cookson's criminal history and the need to avoid unwarranted sentencing disparities between similarly situated defendants. The government stated that the average sentence for offenders within the 97-121 range was seventy months. The government also stated that the
Mr. Cookson requested a sentence of five years' probation, focusing on his rehabilitation as shown by holding a job for twenty-one months, being promoted, and recovering from drug addiction. Mr. Cookson also highlighted a policy disagreement with the § 2G2.2 sentencing enhancements, noting they apply in the majority of cases and have been criticized by the U.S. Sentencing Commission and various courts. Mr. Cookson explained that without those enhancements, his Guidelines range would be 24-30 months instead of 97-121.
During the sentencing hearing, the court determined the Guidelines range of 97-121 months had been correctly calculated based on a total offense level of 28 and criminal history category of III. Before hearing from the parties, the court stated the following:
Having considered these factors and the advisory guidelines, the nature and circumstances of the offense, and Mr. Cookson's history and characteristics, I am of the view that the guidelines range, even the low end of the guideline range, is greater than necessary to serve the purposes of sentencing and it is my intention to sentence Mr. Cookson to a term of confinement of 72 months on each of Counts 1 and 2, those terms to run concurrently and not consecutively; to be followed by five years of supervised release on each of the two counts, those counts to run, again, concurrently and not consecutively.
I believe that sentence is sufficient but not greater than necessary to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offenses, all as set out at 18 U.S.C. Section 3553(a)(2)(A).
*1086 App. at 257-58. The court then invited the government to state its position on this tentatively-announced sentence. The government agreed with the sentence of seventy-two months' imprisonment but reminded the court that Mr. Cookson had used "sophisticated anonymizing technology" (i.e., Tor) and had engaged with an "internet community devoted to child exploitation," which distinguished him from the "mine run" of defendants. App. at 260-62.
The court then heard argument from Mr. Cookson. Defense counsel began by disputing the government's characterization of aggravating factors under § 3553(a), arguing the use of Tor did not indicate a level of technical sophistication because the software is widely available and used for legitimate purposes, and that the government was incorrect in asserting Mr. Cookson had engaged in "production conduct." Defense counsel pointed to letters from Mr. Cookson's family and his employer, as well as the fact Mr. Cookson had overcome a drug addiction, as evidence of "extraordinary rehabilitation." App. at 274. Defense counsel also highlighted the overrepresentation of Mr. Cookson's criminal history-four out of six total points for that history coming from a single misdemeanor marijuana and drug paraphernalia possession charge. Defense counsel noted that Mr. Cookson held a good job, stayed clean, attended counseling, and had made "great strides in his life," to the point where he could continue to "live a drug-free and ... law abiding lifestyle." App. at 276-77. Defense counsel argued imprisonment would "have [Mr. Cookson] go backwards rather than forwards," and a sentence of probation would allow Mr. Cookson to continue "contributing to society" and personally moving "in a positive direction." App. at 277. Mr. Cookson then allocuted, apologizing for his actions taken "in the midst of drug addiction [and] depression" and stating that he wished to keep his job and "continue working hard on [his] sobriety." Mr. Cookson asked for a sentence of probation to allow him to "stay on [his] current path of living a healthy, normal life."
After hearing argument from defense counsel and Mr. Cookson's allocution, but before announcing a final sentence, the court stated the following:
Mr. Cookson, it's pretty obvious that you have made some significant progress in terms of your drug addiction. I have no idea, obviously, where you are in terms of child pornography but I'm not aware of any further activity that came up during the course of the presentence investigation with respect to that.
You do have a good job and the fact that you've been at it for two years speaks volumes. Your family is obviously very supportive and they have seen very positive changes in you over a period of time. It does seem that your criminal history is overrepresented given the fact that four of your six points came out of a misdemeanor marijuana possession charge even with all of the subsequent stuff. And, frankly, these are serious offenses ....
App. at 279-280. The court observed that Congress and the Sentencing Commission had "struggled with this area" (presumably, sentencing for child-pornography possession) and they were "hard" and "heartbreaking" cases. And the court recognized that becoming a registered sex offender represented a "very heavy burden." With respect to Mr. Cookson specifically, the court stated:
I've seen a lot of people through here over the years convicted of these types of offenses. Some are people who literally are social recluses, who are up in their mother's attic or something, that's where they spend their time, they have no social life at all, any employment that they have they just go to work and they *1087 go home and there's no life even there, and you seem to be the exception to the norm. And I intend to give you credit for the fact that you did go out, you did get a job, [and] the fact that you're doing well with it ....
App. at 282.
The court then sentenced Mr. Cookson to five years' probation, noting it "would have been more inclined not to place [Mr. Cookson] on probation," but it was concerned about imprisoning Mr. Cookson while his appeal was pending because his convictions could be overturned. App. at 283. The government objected to the sentence on procedural and substantive grounds, specifically noting its "procedural objection" to the court's apparent reliance on a concern about imprisoning Mr. Cookson pending resolution of his appeal, because the government had agreed Mr. Cookson could remain on bond for that period.
The court later produced a written "statement of reasons" for its sentence, checking boxes for the following reasons for a variance under
II. DISCUSSION
A. NIT Search
At the outset, the parties do not dispute whether the NIT constituted a search within the meaning of the Fourth Amendment, whether the warrant was valid, or whether the search was reasonable despite the invalid warrant. The only issue before us is whether the good-faith exception to the exclusionary rule applies to the government's search using the NIT. We decided it did in Workman .
There, we assumed the NIT search "violate[d] the Federal Magistrates Act [ § 636(a) ] and the Federal Rules of Criminal Procedure."
Workman
, 863 F.3d at 1321. But we explained that under
United States v. Leon
,
Although Mr. Cookson recognizes Workman involved the same warrant at issue in this case, he argues the record before us contains four new facts that alter the good-faith calculus under Leon . We evaluate each of these four facts not expressly considered by Workman in turn.
First, Mr. Cookson points to an internal guidance document produced by the Department of Justice-Computer Crime & Intellectual Prop. Section, Criminal Div., U.S. Dep't of Justice,
Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations
(3d ed. 2009), http://www.justice.gov/criminal/cybercrime/docs/ssmanual2009.pdf. This manual advised law enforcement to ensure compliance with Fed. R. Crim. P. 41 by "obtain[ing] multiple warrants if they have reason to believe that a network search will retrieve data stored in multiple locations."
Id.
at 84. Mr. Cookson argues the manual advises law enforcement to "obtain additional warrants for each location where the data resides" to ensure compliance with Rule 41(b), 2nd Br. on Cross-Appeal at 26, and therefore it suggests that FBI agents (who "worked very closely with the Department of Justice" during the NIT operation, App. at 568) knew the NIT warrant would violate Rule 41(b). A fuller reading of the manual, however, reveals the DOJ bifurcated its advice depending on whether agents would be able to learn, prior to searching, whether the data searched was located within or without the district. Computer Crime & Intellectual Prop. Section,
supra
, at 84 ("Agents may in some cases be able to learn where the data is located before the search, but in others they will be unable to know the storage site of the data until after the search is completed."). When "agents can learn prior to the search that some or all of the data described by the warrant is stored in a different location than where the agents will execute the search," the manual advises agents to obtain multiple warrants.
Id.
at 84-85. "When agents do not and even cannot know that data searched from one district is actually located outside the district," the manual expressly advises agents that "evidence seized remotely from another district
ordinarily should not lead to suppression of the evidence obtained
."
Id.
at 85 (emphasis added). The manual goes on to explain that courts will likely
not suppress
the evidence as either (1) obtained in compliance with Rule 41 ; or (2) even if in violation of Rule 41, obtained in a good-faith manner.
See
id.
at 85 (citing
United States v. Ramirez
,
Second, Mr. Cookson points to
In re Warrant
,
The facts of
In re Warrant
bear substantial similarity to those before us. Nevertheless,
In re Warrant
is insufficient to show the FBI lacked good faith when relying on the NIT warrant because magistrate judges differed on the question at the time.
In re Warrant
itself mentions that "in 2007 a magistrate judge is known to have issued a warrant authorizing a similar investigative technique to track the source of e-mailed bomb threats against a Washington state high school."
Third, Mr. Cookson points to a September 2013 letter from the acting Assistant Attorney General ("AAG") to the Chair of the Advisory Committee on Criminal Rules. Letter from Mythili Raman, Acting Attorney Gen., to Judge Reena Raggi, Chair, Advisory Committee on the Criminal Rules (Sept. 18, 2013). In this letter, the AAG proposes an amendment to Rule 41 that would allow a magistrate judge "in a district where activities related to a crime have occurred to issue a warrant-to be executed via remote access-for electronic storage media and electronically stored information located within or outside that district." App. at 397. This letter cites In re Warrant , observing:
[E]ven when investigators can satisfy the Fourth Amendment's threshold for obtaining a warrant for [a] remote search ... a magistrate judge may decline to issue the requested warrant. For example, in a fraud investigation, one magistrate judge recently ruled that an application for a warrant for a remote search did not satisfy the territorial jurisdiction requirements of Rule 41.
Id. at 398. Although this letter lends credence to Mr. Cookson's argument that the FBI was aware of In re Warrant and Rule 41(b)'s territorial restrictions, it does not suggest the AAG believed the magistrate judge's decision in In re Warrant was correct. Rather, the AAG sought an amendment to Rule 41(b) because the rule "does not directly address the special circumstances that arise when officers execute search warrants, via remote access, over modern communications networks such as the Internet." App. at 397. The AAG hoped to "clarify" the rule because "while the Fourth Amendment permits warrants to issue for remote access to electronic storage media or electronically stored information, Rule 41's language does not anticipate those types of warrants in all cases." Id. at 399. Accordingly, the AAG letter does not show the AAG (or, by extension, the FBI) knew Rule 41(b) in its then-current form did not authorize the NIT warrant.
Finally, Mr. Cookson notes that Rule 41 was amended in 2016 to allow a magistrate judge to "issue a warrant to use remote access to search electronic storage media ... within or outside [her] district if ... the district where the media or information is located has been concealed through technological means." Fed. R. Crim. P. 41(b)(6)(A). The parties do not dispute that this amendment, had it been adopted two years earlier, would have expressly authorized the NIT warrant. But we disagree with Mr. Cookson's contention that "there *1090 would have been no need to amend Rule 41" had the NIT search been authorized at the time. 2nd Br. on Cross-Appeal at 28. The amendment fails to show the FBI's lack of good faith for the same reason the AAG letter does-the amendment of Rule 41 is consistent with an aim to clarify , but not necessarily change , the rule. Therefore, the proposed and actual amendment bear no clear indications that the pre-amendment Rule 41 forbade the NIT warrant, let alone that the FBI knew as much.
Taken together, Mr. Cookson's four new facts, at most, support
Workman
's conclusion that the territorial restrictions of Rule 41(b) were unclear at the time the NIT warrant issued.
See
863 F.3d at 1321. A review of decisions before and since confirms courts could and did differ on, for example, whether the NIT amounted to a "tracking device" expressly authorized by Rule 41.
Compare, e.g.
,
United States v. Jones
,
B. Sentencing
On appeal, the government challenges Mr. Cookson's five-year probationary sentence as substantively unreasonable and purports to waive any challenge as to the sentence's procedural reasonableness. Yet much of the government's argument focuses on the district court's explanation for Mr. Cookson's sentence-specifically its brevity, reliance on a misunderstanding of the terms of Mr. Cookson's plea agreement, failure to consider various § 3553(a) factors, and unexplained deviation from an initially-announced seventy-two-month period of imprisonment. We typically consider such arguments as pertaining to a sentence's procedural reasonableness.
United States v.Huckins
,
Still, we have recently acknowledged a blurring of the line between procedural and substantive reasonableness when it comes to the district court's explanation for a given sentence.
See
United States v. Barnes
,
1. Standard of Review
We review a district court's sentencing decision for substantive reasonableness under an abuse-of-discretion standard, looking at the "totality of the circumstances."
United States v. Balbin-Mesa
,
2. Procedural Versus Substantive Unreasonableness
In the wake of
United States v. Booker
,
This distinction turns murky, however, when we consider that the district court's explanation for a given sentence serves a "dual purpose."
See
Barnes
,
But the heavier our reliance on the inadequacy of the district court's explanation in holding Mr. Cookson's sentence substantively unreasonable, the less our decision restricts the "bounds of reasonable choice" available to the district court in crafting a sentence on remand.
Barnes
,
With that backdrop in place, we consider Mr. Cookson's sentence in light of "all the circumstances of the case,"
Friedman
,
3. Substantive Reasonableness Review
The district court explained Mr. Cookson's sentence primarily in terms of § 3553(a)(1), specifically referencing Mr. Cookson's (1) recovery from drug addiction, (2) success in a new job, and (3) support from his family. The court acknowledged that Mr. Cookson's offenses were serious and that possession of child pornography causes significant harm to the children depicted.
See
United States v. DeRusse
,
The district court's written statement of reasons also expressed its policy disagreement with U.S.S.G. § 2G2.2 as a reason for the downward variance. We have described arguments criticizing the § 2G2.2 enhancements as "quite forceful" and have "specifically cautioned district courts to carefully apply the child pornography distribution guideline and remain mindful that they possess broad discretion in fashioning sentences under § 2G2.2."
United States v. Wireman
,
Although we recognize these concerns as valid, we have cautioned against excessive reliance on a single factor in sentencing. In
Walker I
, we held substantively unreasonable a time-served sentence for a serial bank robber who pleaded guilty to two bank robberies.
See
Comparing the district court's explanation of Mr. Cookson's sentence with other recent cases upholding the substantive reasonableness of large downward variances supports this conclusion.
Barnes
, for example, considered a large downward variance for former jail employees convicted of conspiracy to violate, and deprivation of, constitutional rights related to abuse they inflicted on the jail's inmates.
See
Here, the district court's assessment, in addition to focusing almost exclusively on § 3553(a)(1), relied on an apparent misunderstanding of Mr. Cookson's conditional plea agreement. Fearing that Mr. Cookson's challenge to the suppression ruling might be successful, and that Mr. Cookson would then have spent time in prison and lost his job only for the charges against him to be dismissed, the court stated it would have been less inclined to place Mr. Cookson on probation but for his conditional plea. But the government had consented in the conditional plea agreement that Mr. Cookson could remain on bond pending resolution of his appeal. The district court's concern was thus unfounded, and its suggestion that it would have been more inclined to sentence Mr. Cookson to a term of imprisonment absent this concern gives us pause in deferring to its "decision that the § 3553(a) factors, on [the] whole, justify the extent of the variance."
Friedman
,
In light of this discrepancy, and because the district court placed nearly exclusive focus on Mr. Cookson's presentencing rehabilitation in explaining its decision, the sentence it imposed is substantively unreasonable. We reach this conclusion, in large part, based on the significant variance in Mr. Cookson's sentence and the district court's limited and inconsistent explanation for that variance.
See
Barnes
,
III. CONCLUSION
For these reasons, we AFFIRM the district court's denial of Mr. Cookson's motion to suppress the fruits of the NIT search of his computer. We also VACATE the district court's decision sentencing Mr. Cookson to five years' probation and REMAND for resentencing.
The Playpen NIT resulted in criminal charges throughout the country, meaning many courts, including ours, have reviewed the same NIT warrant for Fourth Amendment violations.
See, e.g.
,
Workman
, 863 F.3d at 1315 ;
United States v. Levin
,
The court's written statement of reasons makes clear that it weighed this fact under § 3553(a)(1), although an over-represented criminal history could also support a downward departure under U.S.S.G. § 4A1.3(b)(1).
On remand, the district court resentenced Mr. Walker to ten years of probation, two years of home confinement, and 500 hours of community service.
United States v. Walker (Walker II)
,
The government cites a single case,
United States v. Gerezano-Rosales
,
Fed. R. Crim. P. 32(i)(4)(A)(ii) requires as much. Had the district court refused to listen to Mr. Cookson's allocution and stubbornly held to its tentative sentence, it may have violated Mr. Cookson's right to allocute.
United States v. Theis
,
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellant/Cross-Appellee, v. Daniel Eugene COOKSON, Defendant-Appellee/Cross-Appellant.
- Cited By
- 50 cases
- Status
- Published