United States v. Caraher

973 F.3d 57

UNITED STATES of America, Appellee,

v.Michael CARAHER, Defendant-Appellant.

Docket No. 18-511

August Term, 2019

United States Court of Appeals, Second Circuit.

Submitted: March 5, 2020

Decided: August 25, 2020

Carina H. Schoenberger, Assistant United States Attorney, for Grant C. Jaquith, United States Attorney for the Northern District of New York for Appellee.

James P. Egan, Assistant Federal Public Defender, for Lisa A. Peebles, Federal Public Defender, Syracuse, NY, for Defendant-Appellant.

Before: Hall, Lynch, Menashi, Circuit Judges.

HALL, Circuit Judge:

Like many before it, this case arises from an investigation by the Federal Bureau of Investigation (FBI) into a website known as Playpen. See, e.g., United States v. Eldred , 933 F.3d 110, 111 (2d Cir. 2019) ; United States v. Safford , 814 F. App'x 638 (2d Cir. May 28, 2020). Defendant-Appellant Michael Caraher appeals from a judgment of conviction in the United States District Court for the Northern District of New York (Glenn T. Suddaby, Chief Judge ) following his conditional guilty plea to charges related to his use of the website. Caraher pled guilty to all eight counts of an indictment related to his possession and distribution of child pornography. The district court sentenced Caraher, on each count, principally to a 90-month term of imprisonment, followed by a 20-year term of supervised release, to run concurrently. Caraher appeals from a judgment of conviction, challenging the district court's denial of his pretrial motion to suppress evidence obtained pursuant to a search warrant, its denial of his motion to dismiss the indictment, and the sentence it imposed, which he asserts is unreasonable. We hold that the district court properly denied the two motions and that the sentence imposed was not unreasonable. The judgment of the district court, therefore, is AFFIRMED .

BACKGROUND

The facts of this case run largely parallel to those in Eldred . 933 F.3d at 112-13. Playpen operated on an "anonymizing network," "The Onion Router" or "Tor," that allows users who have downloaded the Tor software to access websites without revealing their internet protocol (IP) addresses. Id. at 112. The FBI, using a search program called the Network Investigative Technique (NIT), infiltrated the website and collected computer-related identifying information, including IP addresses, from the computers of Playpen users. Id. at 111. This software was deployed pursuant to a warrant, the "NIT warrant," issued by Magistrate Judge Theresa Carroll Buchanan of the Eastern District of Virginia. Id. at 113. "An attachment to the warrant listed the ‘place to be searched’ as ‘activating computers,’ i.e. ‘those of any user or administrator who logs into the Playpen website by entering a username and password.’ " Id. (citation and alterations omitted). Caraher was one such user. While the NIT was deployed, it did not "deny the users any functionality on their computers, or collect any additional, unrelated information," so users accessed the website without any knowledge that law enforcement had assumed control of the site. Id.

The FBI operated Playpen from a server in the Eastern District of Virginia for a period of about two weeks. Id. The information obtained under the NIT warrant allowed law enforcement to identify Playpen users' true identities and locations. Id. Information obtained pursuant to the NIT warrant established that a Playpen visitor with the username "Phillip J. Fry" logged in from an identified IP address in Morrisville, New York, a computer hostname "Mike-PC," and a computer logon name "Mike." A188. Law enforcement determined that the visitor with the username "Phillip J. Fry" had been actively logged into Playpen for more than six hours over the course of several months and had accessed posts relating to bondage and sadistic conduct, including depictions of a prepubescent girl. A186-88. The IP address was traced to Caraher's address.

On January 19, 2016, the government obtained a warrant to search Caraher's residence, vehicles, and computers for evidence related to the distribution, receipt, and possession of child pornography. FBI agents executed the search warrant and seized several computers, hard drives, cellular devices, electronic media, and pages of printed materials.

Upon being interviewed by law enforcement, Caraher admitted that he downloaded and stored child pornography and confessed to using Playpen to distribute child pornography to other users. Forensic analysis subsequently revealed child pornography and child erotica on six of Caraher's electronic devices. The search revealed that Caraher possessed 974 still images and 118 videos depicting child pornography, including some of adults raping children bound with rope.

A grand jury returned an eight count indictment, charging Caraher with one count of distribution and attempted distribution of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(a) and 2252A(b)(1) ; three counts of receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) and 2252A(b)(1) ; and four counts of possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2), and 2256(8)(A). Caraher filed multiple pretrial motions including, as relevant here, a motion to suppress evidence derived from the execution of the NIT warrant and for a hearing pursuant to Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), as well as a motion to dismiss the indictment against him based on outrageous government conduct.

The district court denied both motions after a suppression hearing. As to the suppression motion, the district court concluded that the NIT warrant was supported by probable cause, sufficiently particularized, and satisfied the Fourth Amendment. Although the district court determined that the NIT warrant violated Fed. R. Crim. P. 41(b) and 28 U.S.C. 636(a), it found that the evidence should not be suppressed because, among other reasons, the good-faith exception to the exclusionary rule applied. The district court also found that Caraher failed to meet his burden of demonstrating that his motion required a Franks hearing. As to the motion to dismiss the indictment, the district court found that the FBI's investigation did not amount to outrageous conduct.

After the motions were denied, Caraher pled guilty to all counts in the indictment pursuant to a conditional plea agreement that reserved his right to seek appellate review of certain issues, including denial of the motions and the reasonableness of his sentence. The district court sentenced Caraher principally to 90-months of imprisonment, followed by 20-years of supervised release, on each count, all to run concurrently. This timely appeal followed. This appeal was held in abeyance while the appeals in Eldred, Safford , and two other cases were pending because they raised challenges to the use of this same warrant. See United States v. Allen , 782 F. App'x 21 (2d Cir. 2019) ; United States v. Scanlon , 774 F. App'x 43 (2d Cir. 2019).

JURISDICTION

The district court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. This court has jurisdiction under 28 U.S.C. § 1291.

DISCUSSION

I. Motion to Suppress

Caraher argues principally that for a variety of reasons the district court should have suppressed the fruits of the NIT warrant. We review legal conclusions on a motion to suppress evidence de novo and findings of fact for clear error. Eldred , 933 F.3d at 114. We review a district court's determination to apply the good faith exception based on an officer's reliance on an issued warrant de novo. Id. Caraher's arguments are mostly foreclosed by our opinion in Eldred , which concluded that suppression of the evidence derived from the NIT warrant was not required. There we held that even assuming arguendo that the warrant violated the Fourth Amendment, the good faith exception applied. Eldred , 933 F.3d at 115. Relying on the good faith exception, Eldred squarely rejected the exact arguments Caraher makes here: namely, that the evidence should have been suppressed because the search of his computer exceeded the territorial scope of the warrant, the warrant was void ab initio , and the government knowingly sought a warrant that violated Federal Rule of Criminal Procedure 41(b). Id. at 117-20.

Caraher presses several additional arguments not foreclosed by Eldred. He contends that the warrant was so deficient of probable cause that no officer could reasonably rely on it. Notably, however, we have already determined that the warrant at issue was supported by probable cause. Allen , 782 F. App'x at 23. Although we are not bound by Allen , "our denying summary orders precedential effect does not mean that the court considers itself free to rule differently in similar cases." United States v. Payne , 591 F.3d 46, 58 (2d Cir. 2010) (alteration and internal quotation marks omitted). Where, as here, we are considering an appellant's argument that a warrant was so lacking in probable cause that any reasonable law enforcement officer would have known that the warrant is invalid, the conclusion of a panel of this Court that the warrant was in fact supported by probable cause weighs heavily against that argument. In any event, we find no reason to disagree with that panel's conclusion.

Next, Caraher argues that material misrepresentations in the warrant application should have triggered an evidentiary hearing pursuant to Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). When assessing a district court decision on a Franks hearing, we review legal questions de novo and questions of fact for clear error. United States v. Rajaratnam , 719 F.3d 139, 153 (2d Cir. 2013). A Franks hearing is warranted if the defendant can make a preliminary showing that (a) the warrant affidavit contains a false statement, (b) the false statement was included intentionally or recklessly, and (c) the false statement was...