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United States v. Schreiber

United States District Court, E.D. New York

December 28, 2017




         Defendant Alex Schreiber was charged in a two-count indictment with receipt and possession of child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1), and 2252(a)(4) and 2252(b)(2), respectively. On June 29, 2017, he moved to dismiss the indictment, arguing that the government engaged in “outrageous” conduct that violated his Fifth Amendment due process rights. For the reasons set forth below, the motion is denied.


         The indictment arose out of a FBI investigation into a website, publically known as Playpen, in or around September 2014, which is when agents became aware that the site made available and did distribute child pornography. (Affidavit in Support of Application for a Search Warrant (“Macfarlane Aff.”), 15-SW-89 (E.D. Va. Feb. 20, 2015), attached as Ex. A to Mem. of Law in Supp. of Def.'s Mot., (“Def. Mem.”, Dkt. 22), Dkt. 22-1, ¶ 11.) In January 2015, FBI agents obtained and executed a search warrant permitting them to seize the Playpen server and move a copy of it to government facilities in Virginia.[1] (Id. ¶ 28.) While the seizure would normally have provided the government with important information as to the identity of Playpen visitors and their criminal activities, because the server was hosted on an anonymous network, The Onion Router (“Tor”), agents were unable to even identify who had visited the website much less discover their individual activities there.[2] (Id. ¶ 29.)

         Facing these investigatory challenges, on February 19, 2015, the FBI secured an additional search warrant for the home of Playpen's administrator in order to obtain operational control of the website. (Id. ¶ 30.) Then, rather than shut Playpen down, in order to continue the investigation, the FBI applied for a third warrant from a magistrate judge sitting in the United States District Court for the Eastern District of Virginia, for that purpose. (Id. ¶¶ 30, 31, 36.) Specifically, the warrant application sought permission to use a network investigative technique (“NIT”) that would enable agents to download key identifying information about each computer that accessed Playpen, and, thereafter, prosecute individuals downloading or disseminating child pornography via the site. (Id. ¶¶ 33-36.) This strategy, however, required that FBI agents permit Playpen users to continue to post and download illicit images, including videos of children. (United States' Response to Order Compelling Discovery in United States v. Michaud, 15-cr-5351 (W.D.WA) (“Michaud Discovery Response”), attached as Ex. B to Def. Mem., Dkt. 22-2, at 2-3.) The magistrate judge granted the application and issued the warrant. Ultimately, the FBI allowed Playpen to operate from February 20 through March 4, 2015 - two weeks shy of the 30-day period sought in its application and permitted by the warrant. (Id. at 3.)

         It was through the use of these methods that FBI agents were able to identify Schreiber as an individual who downloaded child pornography from Playpen. (Criminal Compl. ¶¶ 5-7.)


         I. Controlling Law

         It is true, as the Supreme Court has observed, that there could be “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.” United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973). Lighting a cautionary lamp, the Second Circuit has explained further that “[t]o establish a due process violation on [the grounds of excessive government involvement in a crime], 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.'” United States v. Al Kassar, 660 F.3d 108, 121 (2d Cir. 2011) (citation omitted). In short, “the government's conduct must reach a demonstrable level of outrageousness before it could bar conviction.” United States v. LaPorta, 46 F.3d 152, 160 (2d Cir. 1994) (citation and quotation omitted). When facts make its application appropriate, this principle “ensur[es] that the government does not trample in an unconscionable manner on individual dignity.” United States v. Schmidt, 105 F.3d 82, 91 (2d Cir. 1997).

         When application of this principle is demanded, it triggers an inquiry in which the focus rests on the conduct of the government agents, and not that of the defendant. Al Kassar, 660 F.3d at 121. However, in light of the wide deference case law affords the government in choosing its investigatory method, defendants face a heavy burden in proving outrageous government conduct. Id.; United States v. Rahman, 189 F.3d 88, 131 (2d Cir. 1999).

         Historically, government conduct found outrageous has involved “either coercion or a violation of the defendant's person.” Al Kassar, 660 F.3d at 121. This means that government agents must actually coerce, intimidate or use physical force on a defendant to rise to the appropriately shocking level to merit dismissing an indictment. See Schmidt, 105 F.3d at 91-92 (“Ordinarily such official misconduct must involve either coercion . . . or violation of the defendant's person . . .When police do no more than facilitate a criminal enterprise started by another, due process principles are not violated.”). Thus, even where government agents create the opportunity for the defendant to commit an offense through an “elaborate” ploy and with “extensive” “engagement with the defendant, ” such conduct is not sufficient to establish the kind of outrageous behavior that would warrant relief. Al Kassar, 660 F.3d at 121; Russell, 411 U.S. at 432 (recognizing that government agents may be forced to infiltrate and, to an extent, even participate in criminal wrongdoing as part of an investigation); United State v. Myers, 692 F.2d 823, 837-43 (2d Cir. 1982) (finding that creating the opportunity to commit bribery, providing large cash bribes and coaching the defendant in how to commit the crime did not constitute outrageous government conduct); Schmidt, 105 F.3d at 85, 92 (holding that the government agents' action in posing as hit met, accepting the defendant's offer to murder prison guards and orchestrating a breakout did not violate due process). On the other hand, six days of intense interrogation to secure a confession, Watts v. Indiana, 338 U.S. 49, 55, 69 S.Ct. 1347, 1350, 93 L.Ed. 1801 (1949), and the forcible extraction of the defendant's stomach, Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209-10, 96 L.Ed. 183 (1952), were held to rise to the necessary level of outrageousness that violated due process.

         Opening a new beachhead, the Second Circuit has since suggested that government conduct could be deemed “outrageous” if it violates the due process rights of third parties.

         United States v. Chin, 934 F.2d 393, 399-400 (2d Cir. 1991). In practical terms, however, there appears to be very little beach, since “[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. In that case, the court recognized that, in coaxing the defendant to travel to Amsterdam to purchase child pornography and to bring it back to the United States, the government “encouraged [the defendant] to go out and commit a real crime, with real victims.” Id. at 399.[3] Notwithstanding the harm to the children depicted in the images, the court declined to order dismissal of the indictment when the defendant could not prove that the government's conduct actually caused him to commit the crime of transporting child pornography. Id. at 400.

         Finally, in overarching guidance, case law directs that, if, in pursuing an investigation, a government agent engages in criminal conduct, the appropriate remedy is to hold the agent responsible, and not to dismiss the indictment against another alleged wrongdoer. Indeed, the Supreme Court has warned: “If the police engage in illegal activity in concert with a defendant beyond the scope of their duties the remedy lies, not in freeing the equally culpable defendant, but in prosecuting the police under the applicable provisions of state or federal law.” Hampton v. United States, 425 U.S. 484, 490, 96 S.Ct. 1646, 1650, 48 L.Ed.2d 113 (1976); see also United States v. Chase, No. 5:15-CR-00015-RLV-DCK-1, 2016 WL 4639182, at *2 (W.D. N.C. Sept. 6, 2016) (holding, in a parallel case against a Playpen user, that “the remedy for ‘illegal activity' by the police” was prosecution of the agent) (citing Hampton, 425 U.S. at 490). In Hampton, although the petitioner claimed that ...

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