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United States v. Bateman

United States Court of Appeals, Sixth Circuit

December 23, 2019

United States of America, Plaintiff-Appellee,
Kyle Bateman, Defendant-Appellant.

          Appeal from the United States District Court for the Southern District of Ohio at Dayton. No. 3:17-cr-00156-1-Thomas M. Rose, District Judge.

          Gregory A. Napolitano, LAUFMAN & NAPOLITANO, LLC, Cincinnati, Ohio, for Appellant.

          Kevin Koller, UNITED STATES ATTORNEY'S OFFICE, Cincinnati, Ohio, for Appellee.

          Before: McKEAGUE, BUSH, and NALBANDIAN, Circuit Judges.


          JOHN K. BUSH, Circuit Judge.

         This appeal is from a child pornography conviction obtained through the government's deployment of a Network Investigative Technique ("NIT") to unmask anonymous users of a "dark-web" child pornography website known as "Playpen." Defendant-appellant Kyle Bateman, like defendants in other Playpen-related prosecutions, challenges the validity of the nationwide search warrant ("NIT warrant") that the government obtained from a federal magistrate judge in the United States District Court for the Eastern District of Virginia, which authorized the initial use of NIT. The NIT warrant, in turn, led the United States District Court of the Southern District of Ohio to issue a search warrant ("S.D. Ohio warrant"), thus allowing authorities to search Bateman's residence and computer. There, law enforcement agents obtained over 599 illicit images of children in Bateman's possession.

         Bateman filed two motions: (1) to suppress the evidence obtained from the search warrants, and (2) for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), to question FBI Special Agent Douglas Macfarlane, who submitted the affidavit to obtain the initial NIT warrant. The district court denied both motions. Bateman then pleaded guilty to possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B); however, his plea agreement reserved him the right to appeal the district court's denial of his suppression and Franks motions.

         Bateman's suppression motion fails based on our rulings in United States v. Moorehead, 912 F.3d 963 (6th Cir.), cert. denied, 140 S.Ct. 270 (2019), and United States v. Harney, 934 F.3d 502 (6th Cir. 2019). We also reject Bateman's arguments for a Franks hearing, as they are not persuasive under this court's precedent. Accordingly, we AFFIRM.


         The ever increasing and unprecedented capabilities of today's world wide web offer users access to information far beyond even twentieth-century imagination--all in just a matter of seconds. Adopting the vernacular of cyber-speak, the great majority of this content is on the "open" or "traditional" internet, meaning it is accessible by ordinary users without use of any special equipment, passwords, secret knowledge, or closed networks. But, beneath this easily accessible world lies a wholly separate world of cyber content, known colloquially as the "dark- web," which is largely inaccessible to average internet users.[1] Within this space, a number of cyber outlets distribute questionable content.[2]

         "Playpen," formerly one of the most notorious child pornography websites online with more than 215, 000 registered users around the world, [3] was one of those dark-web outlets. Created and operated by a private citizen, the site offered anonymous web users, like Bateman, an unmatched forum not only to access sexually illicit images of children, but also to "discuss" those images across the various discussion threads frequented by fellow users.[4] Such activity is the subject of this appeal.

         FBI agents began to investigate the Playpen website in September 2014. Once accessed by agents, they discovered Playpen to be a message board with primary objectives of advertising and distributing child pornography.

         Playpen's cyber location within the "dark-web"--as protected by the "Tor hidden service network" ("Tor")[5] --rendered the website relatively inaccessible, as compared to websites on the "open" internet. And, of course, this was by design: The website's URL deliberately was composed of a convoluted array of algorithmically-generated characters, [6] meaning it was virtually impossible to access this content through an ordinary web user's search. Additional barriers to entry included the numerous affirmative steps required of interested users, like Bateman, to access Playpen's content. He had to (1) download and install the dark-web Tor software on his computer; (2) obtain the site's intricate URL address directly from other anonymous users of Playpen, or from internet postings describing the website's location and content; and (3) enter this precise URL into the downloaded Tor browser. Because of this arduous cyber arrangement, Playpen was able to mask the IP addresses of users like Bateman, thus hampering the FBI's initial efforts to locate the site's central American-based server, as well as identify registered Playpen "members."

         However, in December 2014, after approximately two months of investigation, a foreign law enforcement agency alerted FBI agents of its suspicions that a U.S.-based IP address was being used to house Playpen. Armed with this information, agents identified the server hosting the website. In January 2015, agents then executed a search warrant on the server, which in turn allowed them to create a duplicate version of the server at a government facility in the Eastern District of Virginia. On February 19, 2015, the FBI apprehended the suspected administrator of Playpen and assumed administrative control of the website.

         Server data with nothing more, however, were insufficient to identify Playpen's individual users. Only a more targeted search warrant could do that. Consequently, on February 20, 2015, the FBI applied for a search warrant from a magistrate judge in the United States District Court for the Eastern District of Virginia, which would allow agents to employ NIT as a means in which to reveal the IP addresses of all users who logged onto Playpen. As a basis for the NIT warrant, the FBI included two attachments. Attachment A, entitled "Place to be Searched," outlined the warrant's purpose in allowing for the authorization of NIT on the government's Eastern Virginia-based computer server. (R. 16-5, NIT warrant at 210). NIT was justified as a critical vehicle through which agents could obtain relevant information connected to the activated computers of any user or administrator who logged into the Playpen website via a username or password. Attachment B outlined the specific information to be seized from a user's computer, which included the computer's accurate IP address. FBI agents predicted that these IP addresses could lead to the identities of the site's individual users and administrators.

         In support of the NIT warrant request, FBI Special Agent Douglas Macfarlane swore out a 32-page affidavit. Covering a number of topics related to the NIT deployment, the affidavit included (1) pertinent background information on the Tor software that formed the basis of Playpen's operation; (2) specifics related to how agents would operate the NIT;[7] (3) an outline of the multi-step process required of users wishing to access Playpen;[8] and (4) the substantive content a user would encounter during each level of access into Playpen.[9] Elaborating further on the substantive content section, Agent Macfarlane also included a separate section of the affidavit, where he offered even greater detail regarding the types of graphic content encountered by users upon logging in, which included Playpen's various sections, forums, and sub-forums devoted to certain "topics" and related discussion posts.[10]

         On February 20, 2015, a United States magistrate judge from the Eastern District of Virginia signed the warrant. Immediately, and until March 4, 2015, law enforcement agents began operating the Playpen website and deploying NIT. During this short tenure, agents were able to uncover the IP addresses of all users who logged onto Playpen. One such user, "nevernudeever" (R. 16-7, S.D. Oho warrant at 309), was Bateman. Using the NIT software, FBI agents confirmed Bateman's identity in connection with this IP address, and identified a service billing address matching Bateman's home address. In addition, based on the "nevernudeever" profile, the NIT software was able to discern that Bateman had registered his Playpen account on or around November 19, 2014. Between that date and March 2, 2015, Bateman was recorded to have been actively logged onto Playpen for a total of 11 hours and 54 minutes. Between February 20, 2015 and March 4, 2015--when FBI agents operated Playpen and deployed NIT--Bateman had logged onto Playpen numerous times, during which he had accessed approximately 75 threads in total, each of which contained various discussion posts.

         Based on the information obtained about Bateman's Playpen activities through the NIT warrant, the government applied for a second warrant in the Southern District of Ohio--the district encompassing Bateman's residence--in order to search Bateman's home and collect evidence of his crimes related to the receipt and distribution of child pornography. In support of the warrant, FBI Special Agent Andrea Kinzig submitted a 33-page affidavit, where she set forth facts regarding (1) the Tor network; (2) the FBI's administration of the website since February 20, 2015; (3) Playpen's graphic content; and (4) information collected about Bateman's various activities while operating under the Playpen username "nevernudeever," including three specific examples of the types of images and discussion threads he was accessing.[11] Collectively, this information led Agent Kinzig to believe, based on her training and experience, that most of the images Bateman accessed depicted child pornography, as defined under 18 U.S.C. § 2256. Finally, within the affidavit, Agent Kinzig set forth facts confirming that the "nevernudeever" account was connected to Bateman's IP address and home address. Based on this affidavit, on August 18, 2015, a United States magistrate judge from the Southern District of Ohio signed the search warrant for the search of Bateman's home located in Washington Township, Ohio. Pursuant to the S.D. Ohio warrant, the government seized Bateman's desktop computer and external hard drive. Across both sources, agents discovered approximately 599 images and video files depicting child pornography.

         On September 28, 2017, a grand jury returned a single-count indictment against Bateman, charging him with possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Thereafter, Bateman filed three motions to suppress, only two of which are relevant for this appeal. In the first, Bateman sought suppression of all evidence obtained by the government as a result of the NIT warrant, which also encompassed the evidence seized pursuant to the subsequent S.D. Ohio warrant. In the final motion, Bateman advanced supplemental arguments for suppressing the evidence obtained as a ...

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