United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
B. Russell, Senior Judge United States District Court
Ammons has been indicted for knowingly producing and
receiving child pornography. His prosecution originates from
the Government's investigation of “Playpen, ”
a website dedicated to the distribution and discussion of
matters pertinent to child pornography and the sexual abuse
of children. Though a website, Playpen could not be accessed
through the traditional Internet. Instead, Playpen existed on
“The Onion Router” network (or “Tor,
” for short). The Tor network conceals the internet
protocol addresses of its users, thereby thwarting
traditional techniques employed to identify Internet users.
To circumvent Tor's protections, the Federal Bureau of
Investigation obtained a warrant to deploy a network
investigative technique on Playpen's server. The NIT
would instruct a user's computer to transmit certain
information-such as the computer's IP address-to the FBI
after the user logged on to Playpen. Using the NIT, the FBI
identified Ammons as a registered user on Playpen.
Ammons asks the Government to turn over a copy of the NIT
source code. [R. 43 (Motion to Compel or Dismiss).] The
Government objects. [R. 46 (Response).] It argues that the
NIT source code is immaterial to his defense and, in the
alternative, is subject to a qualified law-enforcement
privilege. [Id. at 2-5.] Having considered the
record before it, the Court concludes that the Government is
right: The NIT source code is not material to Ammons'
defense. Accordingly, Dennis Ammons' Motion to Compel or,
in the Alternative, to Dismiss, [R. 43], is DENIED.
facts and procedural history of this case are discussed at
some length in a prior opinion, United States v.
Ammons, 207 F.Supp.3d 732, 736-38 (W.D. Ky. 2016). The
instant motion adds nothing new to that factual recitation.
Therefore, the Court will not repeat that information here.
Rule of Criminal Procedure 16(a) requires the Government,
upon request, to “permit the defendant to inspect and
to copy” evidence within its possession, custody, or
control so long as the thing sought is, inter alia,
“material to preparing the defense.” Fed. R.
Crim. P. 16(a)(1)(E)(i). In this Circuit,
“material” evidence is that which could be used
to “refute the Government's arguments that the
defendant committed the crime charged.” United
States v. Pirosko, 787 F.3d 358, 367 (6th Cir.) (quoting
United States v. Robinson, 503 F.3d 522, 532 (6th
Cir. 2007)), cert. denied, __ U.S. __, 136 S.Ct. 518
(2015). The defendant must make a prima facie
showing of materiality to justify disclosure. United
States v. Clingman, 521 F. App'x 386, 392 (6th Cir.
2013) (citing United States v. Phillip, 948 F.2d
241, 250 (6th Cir. 1991)).
Ammons argues that a copy of the NIT source code is material
to his defense. In support of that proposition, he opines
that an examination of the source code might turn up evidence
that the Government (or some unidentified third party)
exploited the NIT to fabricate evidence of his guilt.
[See R. 43 at 3-4.] The Government opposes that
motion, and for good reason. [See R. 46 at 4-5.]
main, Ammons has come forward with no evidence to support his
claim that someone else could be responsible for the activity
linked to his computer. Instead, he simply supposes that an
expert might, perhaps, be able to uncover some evidence of
that sort if given access to the NIT source code. Such
speculation, without more, is insufficient to demonstrate
that the source code is material. See United States v.
Gaver, No. 3:16-CR-88, 2017 WL 1134814, at *2-4 (S.D.
Ohio Mar. 27, 2017) (finding NIT source code immaterial to
defense); United States v. Owens, No. 16-CR-38-JPS,
2016 WL 7351270, at *4-6 (E.D. Wis. Dec. 19, 2016) (same);
United States v. McLamb, __ F.Supp.3d __, __, 2016
WL 6963046, at *7-8 (E.D. Va. 2016) (same); United States
v. Jean, No. 5:15-CR-50087-007, 2016 WL 6886871, at *5-7
(W.D. Ark. Nov. 22, 2016) (same); United States v.
Matish, 193 F.Supp.3d 585, 598-600 (E.D. Va. 2016)
(same). Therefore, the Government need not produce the NIT
source code to Ammons.
more, Ammons has not explained why the information is
necessary in light of what the Government has already
produced and is willing to produce subject to a protective
order. For example, the Government has offered to provide
Ammons with the coded instructions sent to the activating
computer and the two-way network data stream which resulted.
[R. 46 at 3.] With that information, the Government claims
that Ammons will be able to confirm that the data sent from
the activating computer is identical to the data produced to
him during discovery. [Id.] The Government's
proffer appears to undercut the need, if any, for Ammons to
obtain the NIT source code in its entirety.
HEREBY ORDERED that Dennis Ammons' Motion to Compel or,
in the ...