United States v. Anzalone

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

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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.

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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.

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 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

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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).

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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

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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.

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 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]

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. . . 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).

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 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

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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.

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