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United States v. Kim

United States District Court, E.D. New York

January 27, 2017

YANG KIM, also known as “Andrew Kim, ” Defendant.



         Defendant Yang Kim, also known as “Andrew Kim, ” has been charged in a two-count indictment with receipt and possession of child pornography, in violation of Title 18, United States Code, Sections 2252(a)(2) and 2252(a)(4)(B), respectively. These charges arose out of an investigation by the Federal Bureau of Investigation (“FBI”) into a website known as “Playpen, ” which facilitated the accessing and sharing of child pornography by and between its users, allegedly including Kim. The website was only accessible via a network known as “Tor”[1], which anonymizes the user, in part, by concealing his or her Internet Protocol (“IP”) address. As part of its investigation, the FBI took administrative control of, and for a two-week period managed, the operation of the Playpen website, in order to implant a Network Investigative Technique (“NIT”) that enabled the FBI to identify the IP addresses of Playpen's users.[2]

         Before the Court is Defendant's motion to dismiss the indictment. Defendant asserts that the government's two-week operation of the Playpen website constitutes “outrageous” governmental conduct that violates due process and warrants dismissal of the indictment in this matter. See United States v. Russell, 411 U.S. 423, 431-32 (1973) (“[W]e may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.”). Applying the relevant legal standards and giving due deference to law enforcement decision-making, the Court does not find the government's conduct in connection with the Playpen website to be so outrageous as to warrant dismissal of the indictment. Accordingly, Defendant's motion is denied.



         In United States v. Al Kassar, the Second Circuit explained that “[g]overnment involvement in a crime may in theory become so excessive that it violates due process and requires the dismissal of charges against a defendant even if the defendant was not entrapped.” 660 F.3d 108, 121 (2d Cir. 2011) (citing United States v. Rahman, 189 F.3d 88, 131 (2d Cir. 1999); Russell, 411 U.S. at 431-32). “To establish a due process violation on this ground, a defendant must show that the government's conduct is ‘so outrageous that common notions of fairness and decency would be offended were judicial processes invoked to obtain a conviction.'” Id. (quoting United States v. Schmidt, 105 F.3d 82, 91 (2d Cir. 1997)); see also United States v. LaPorta, 46 F.3d 152, 160 (2d Cir. 1994) (government action must “reach a demonstrable level of outrageousness before it could bar conviction”) (internal quotation marks omitted). Because of the courts' “well-established deference to the Government's choice of investigatory methods”, this is a “very heavy” burden. United States v. Al Kassar, 660 F.3d 108, 121 (2d Cir. 2011) (quoting Rahman, 189 F.3d at 131).

         Traditionally, courts have only found a due process violation based on outrageous governmental conduct where the conduct is directed at the defendant. See, e.g., Rochin v. California, 342 U.S. 165 (1952) (affirming dismissal of indictment based on government agents breaking down defendant's bedroom door, attempting to forcibly remove pills from his throat, and ordering his stomach to be pumped); Al Kassar, 660 F.3d at 121 (“Generally, to be ‘outrageous, ' the government's involvement in a crime must involve either coercion or a violation of the defendant's person.”); Rahman, 189 F.3d at 131 (“paradigm examples of conscience-shocking conduct are egregious invasions of individual rights”). However, the Second Circuit in United States v. Chin, 934 F.2d 393 (2d Cir. 1991), suggested that the government's conduct could be deemed outrageous where it violates the rights of third parties, such as the victims of the crimes being investigated.

         In Chin, a United States Postal Inspector, posing as a collector of child pornography, encouraged the defendant to travel to Amsterdam and purchase child pornography, which the defendant did. Though rejecting the defendant's argument that the agent's conduct toward him, i.e., the alleged “psychological manipulation” of the defendant, amounted to outrageous governmental conduct, id. at 398-99, the Second Circuit went on to analyze the defendant's due process claim from the perspective of the third-party victims of his crime:

Our conclusion that [the inspector's] exploitation of Chin's trust did not violate Chin's due process rights does not end our analysis, however. One factor distinguishes this case from the usual undercover operation and, in our opinion, raises very serious concerns with respect to the rights of third parties-namely, the rights of the children Congress sought to protect in enacting the prohibitions on child pornography. Our concern is that, in contrast to the usual sting operation, in which the Government sets up a phony drug transaction or another sort of dummy crime, the government agent in this case encouraged Chin to go out and commit a real crime, with real victims, just so Chin could later be arrested and prosecuted.

Id. at 399.

         The panel nonetheless found that, even though the inspector's encouragement of Chin resulted in Chin buying child pornography and thereby violating the rights of the child victims, this conduct was not so outrageous as to violate due process or warrant reversal of Chin's conviction. In reaching this conclusion, the panel stated: “A necessary prerequisite for demonstrating that an undercover investigation violated the rights of third parties is proof that the governmental action actually caused the defendant to commit a crime that would otherwise not have been committed.” Id. at 400 (emphasis added).[4] Finding that Chin could not make such a showing, the court denied his appeal on that ground. It also expressly declined to reach the issue of “whether the harm [Chin's] crime inflicted on third parties-specifically, the stimulation of demand for child pornography-is sufficient to constitute a due process violation under the principles set forth in [United States v. Archer, 486 F.2d 670 (2d Cir. 1973)]”[5]. Id. (finding no need to decide this issue “[b]ecause Chin cannot establish that government agents were responsible for his purchase and importation of illicit magazines”).


         With these legal principles in mind, the Court turns to Defendant's motion.[6] Defendant argues that the indictment charging him with downloading child pornography should be dismissed because the FBI engaged in outrageous conduct by operating the Playpen website for two weeks, which, Defendant claims, resulted in the distribution of “as many as 1, 000, 000” images and videos of child pornography. Def. Mem. at ECF 2, 5-6.[7] Relying on Chin, Defendant argues that by operating the website for those two weeks, the FBI itself “distributed” child pornography, thereby violating the rights of countless child victims, and that although the Second Circuit denied relief in Chin, a different result is warranted here because of the greater degree of harm to the child victims and the greater extent of the government's involvement in the charged criminal activity.[8] At oral argument, defense counsel distilled these arguments into a single contention: because the FBI could have successfully conducted its investigation without allowing the actual distribution of child pornography to occur, its decision to allow the website to remain fully functional caused unnecessary harm to child victims and thus constituted outrageous governmental conduct.

         A. Courts That Have Considered This Issue Have Declined To Grant Dismissal

         At the outset, the Court notes that it appears that all courts that have considered the same due process challenge based on the NIT warrant have declined to dismiss the indictments in those cases. See United States v. Vortman, No. 16-CR-210, 2016 WL 7324987, at *1 (N.D. Cal. Dec. 16, 2016); United States v. Hammond, No. 16-CR-102, 2016 WL 7157762, at *6 (N.D. Cal. Dec. 8, 2016); United States v. Owens, No. 16-CR-38, 2016 WL 7079617, at *5 (E.D. Wis. Dec. 5, 2016); United States v. Tippens, 16-CR-5110 (W.D. Wash. Nov. 30, 2016), attached as Ex. D to Govt. Mem.; Anzalone, 2016 WL 6476939, at *5; United States v. Allain, No. 15-CR-10251, 2016 WL 5660452, at *13 (D. Mass. Sept. 29, 2016); United States v. Chase, 15-CR-15 (RLV) (W.D. N.C. Sept. 6, 2016), attached as Ex. E to Govt. Mem. Of these seven decisions, only one court found that the government's conduct was outrageous[9], and even then, did not dismiss the indictment, based on its analysis of the six factors identified by the Ninth Circuit in United States v. Black, 733 F.3d 294, 302 (9th Cir. 2013).[10] See Tippens, 16-CR-5110 (Govt. Mem., Ex. D), at 9.[11] As discussed below, the Court finds the reasoning set forth in these decisions persuasive as it applies to Defendant's arguments here.

         B. The Government's Conduct Was Not Outrageous

         As became clear at oral argument, Defendant's due process claim boils down to the contention that the government's conduct was outrageous because the FBI could have accomplished its investigative goals without allowing for the actual distribution of child pornography and the attendant harm to the child victims. This argument, however, ignores, or at least gives short shrift to, the “well-established” deference that is accorded to law enforcement in determining how to conduct its investigations. Al Kassar, 660 F.3d at 121. As the Second Circuit reminded us in Al Kassar, courts must give “deference to the Government's choice of investigatory methods”, and thus the burden for proving outrageous governmental conduct is a “very heavy” one. Id. (quoting Rahman, 189 F.3d at 131). Thus, the standard for demonstrating “outrageous” governmental conduct is demanding for a reason. See United States v. Bout, 731 F.3d 233, 238 (2d Cir. 2013) (government's conduct must be “so outrageous that common notions of fairness and decency would be offended were judicial processes invoked to obtain a conviction.”) (quoting Schmidt, 105 F.3d at 91); Al Kassar, 660 F.3d at 121 (same); Rahman, 189 F.3d at 121 (governmental conduct must shock the conscience).

         The FBI's weighing of the costs and benefits of allowing the Playpen website to remain fully functional during the investigation is precisely the type of difficult decision-making that law enforcement must be allowed to make without undue second-guessing by the judiciary. The decision not to render Playpen, in effect, a dummy website during the investigation, as Defendant suggests (Def. Mem. at ECF 13-14), was one for the FBI, and not the Court or Defendant, to make. While it is clearly unfortunate and undesirable that the government's operation of the Playpen website allowed child pornography to continue to be accessed and shared, and for child victims thereby to continue to be victimized, the Court does not find the government's conduct to be so outrageous as to violate due process. See Bout, 731 F.3d at 238. Here, the FBI did not post anything to the Playpen website, but simply let it continue to operate so that the NIT could be used to identify the website's users and other information that would assist the government in investigating and prosecuting them.[12] (See Michaud Discovery Response, Def. Mem., Ex. B, at 4-5.) The FBI continually assessed the efficacy and appropriateness of allowing the Playpen website to remain functional, and it ceased the operation as soon as it determined that the costs outweighed the benefits, which was within two weeks. (Id. at 4-7.) This was not a situation where the government acted recklessly or without regard for the consequences to the victims. (Id. at 6- 7 (explaining the reasoning behind the “difficult decision” the government believed was “amply justified by the particular facts of the investigation”.) Indeed, because of the investigation, the government, as of January 2015, had identified or recovered 26 child victims from abuse and charged at least 137 individuals in the United States, including 35 ...

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