18-511 United States v. Caraher
In the United States Court of Appeals for the Second Circuit August Term, 2019
Submitted: March 5, 2020 Decided: August 25, 2020
Docket No. 18-511
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL CARAHER,
Defendant-Appellant.
Before: HALL, LYNCH, MENASHI, Circuit Judges.
Defendant-Appellant Michael Caraher appeals from a judgment of conviction in the United States District Court for the Northern District of New York (Suddaby, C.J.) following his conditional guilty plea to all eight counts of an indictment related to his possession and distribution of child pornography. Caraher appeals the district court’s denial of his pretrial motion to suppress evidence obtained pursuant to a search warrant, its failure to dismiss the indictment, and the reasonableness of the sentence imposed. We hold that the district court properly denied Caraher’s motion to suppress evidence and his motion to dismiss the indictment, and that the sentence imposed was not unreasonable. For the reasons stated below, the judgment of the district court is AFFIRMED.
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.
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, ---
F. App’x ---, 2020 WL 2769092 (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
2 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
3 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
4 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
5 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 (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
6 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
7 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
8 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 (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 integral to the probable
cause finding. Franks, 438 U.S. at 155-56. Even assuming that Caraher has met
the first two prerequisites, probable cause existed without the alleged
misrepresentations or omissions, so they were not integral to that determination.
Caraher argues that a change in the logo to the Playpen website was material
because it changed from a young woman depicted in a provocative or suggestive
9 manner to a more innocent-looking young woman, which, according to Caraher,
could not be said immediately to cause the defendant to know he was looking at a
child pornography website. The new logo, however, “hardly suggests that
Playpen was not devoted to child pornography.” Allen, 782 F. App’x at 23. We
noted in Allen that even considering the change in logo, the major defining
characteristics of the Playpen site remained the same. Id. The arguments with
respect to the other two alleged misrepresentations or omissions are similarly
unsuccessful. Even assuming that the government had improperly suggested
that the Playpen site was a “hidden” website and could not be accessed without
prior knowledge, multiple additional pieces of evidence supported the issuance of
the warrant. This evidence included “the site’s suggestive name, ‘Playpen’; [ ]
the texts near the logo, which the NIT affiant explained were terms of art on sites
such as these; . . . and [ ] the site’s registration notice, which emphasized anonymity
and the inability of anyone, even the site’s administrators, to see who accessed it.”
Id. We agree that those facts support a determination that there was probable
cause to search and seize computers of persons visiting the website. We do not
think that the website’s logo or the description of Playpen as a “hidden” website
10 were factors so integral to a determination of probable cause as to warrant a Franks
hearing.
Finally, Caraher claims that the NIT warrant was an anticipatory warrant
that contained a condition precedent which did not occur. “An anticipatory
warrant is a warrant based upon an affidavit showing probable cause that at some
future time (but not presently) certain evidence of crime will be located at a
specified place.” United States v. Grubbs, 547 U.S. 90, 94 (2006) (internal quotation
marks and citation omitted). Warrants of this sort condition their execution on
some event “other than the mere passage of time – a so-called ‘triggering
condition.’” Id. A triggering condition need not be set forth in the warrant
itself. Id. at 99.
According to Caraher, the event that would “trigger” probable cause to
search his computer was his visit and subsequent login to a website “as described
in the warrant application.” Appellant’s Br. at 54. The change in logo on the
website’s homepage, he argues, therefore, made the triggering event impossible.
This argument misconstrues the warrant. Attachment A to the warrant allowed
law enforcement to use the NIT when “any user or administrator . . . logs into the
TARGET WEBSITE by entering a username and password.” The Attachment
11 identifies the “TARGET WEBSITE” by its URL, not by its physical appearance.
The triggering condition, therefore, would occur when an individual entered a
username and password to log into the webpage located at the URL listed in
Attachment A, irrespective of the appearance of that webpage. The logo
description, on the other hand, is located in the affidavit to the warrant. The
affidavit explicitly places the subhead “Description of the TARGET WEBSITE and
Its Content” under a section titled “PROBABLE CAUSE.” There, the description
of the logo was support for the probable cause determination, not the triggering
event. See Safford, 2020 WL 2769092, at *2.
II. Outrageous Government Conduct
Caraher argues that the government’s operation of the Playpen site was
outrageous government conduct that warrants dismissal of the indictment
because it facilitated the dissemination of child pornography, harming the victims.
We review de novo a district court’s ruling on a motion to dismiss an indictment
asserting outrageous government conduct. United States v. Williams, 372 F.3d 96,
112 (2d Cir. 2004). Caraher faces a “very heavy” burden to establish outrageous
government conduct. United States v. Schmidt, 105 F.3d 82, 91 (2d Cir. 1997). In
theory, government involvement in a crime may “become so excessive that it
12 violates due process and requires dismissal of charges against the defendant even
if the defendant was not entrapped.” United States v. Al Kassar, 660 F.3d 108, 121
(2d Cir. 2011). But “[a] necessary prerequisite for demonstrating that an
undercover investigation violated the rights of third parties [such as exploited
children] is proof that the governmental action actually caused the defendant to
commit a crime that would otherwise not have been committed.” United States v.
Chin, 934 F.2d 393, 400 (2d Cir. 1991). Caraher cannot meet such a heavy burden.
Here, the government did not actually cause the defendant to commit a
crime that would otherwise have not been committed. See id. While the
government did not affirmatively prevent Caraher from logging onto the site and
disseminating child pornography, the government did not create Playpen or
encourage Caraher to visit the site. Cf. Al Kassar, 660 F.3d at 121 (“It does not
suffice to show that the government created the opportunity for the offense . . ..”);
see also Safford, 2020 WL 2769092, at *2. The fact that the government could have
stopped the crime from occurring does not mean that the government “actually
caused” the crime. Chin, 934 F.2d at 400; see Al Kassar, 660 F.3d at 121. In this
case, the crime may still have occurred via a different medium. The government
operated a website, with judicial approval, for 15 days. While operating it, law
13 enforcement officials removed suspected images or videos of new child abuse.
They also removed part of the site that encouraged members to share new child
pornography. In light of the benefits to exploited children from prosecuting
patrons of child-pornography websites, and given the “well-established
deference” we owe law enforcement, this conduct does not “shock the
conscience.” United States v. Rahman, 189 F.3d 88, 131 (2d Cir. 1999). 1
III. Substantive Reasonableness
Finally, Caraher contends that the district court’s imposition of a 90-month
term of imprisonment and 20 years’ supervised release was substantively
unreasonable. “Upon review for substantive unreasonableness, we take into
account the totality of the circumstances, giving due deference to the sentencing
judge’s exercise of discretion, and bearing in mind the institutional advantages of
district courts.” United States v. Brown, 843 F.3d 74, 80 (2d Cir. 2016) (citations
and quotation marks omitted). In giving this due deference, we “provide relief
1 In rejecting Caraher’s claim of outrageous government conduct, we join four of our sister circuits who have similarly concluded that the government did not act outrageously during the course of the investigation into Playpen. See United States v. Anzalone, 923 F.3d 1, 6 (1st Cir. 2019); United States v. Harney, 934 F.3d 502, 507 (6th Cir. 2019); United States v. Kienast, 907 F.3d 522, 530-31 (7th Cir. 2018); United States v. Tippens, 773 F. App’x 383, 385 (9th Cir. 2019).
14 only in the proverbial ‘rare case.’” United States v. Bonilla, 618 F.3d 102, 109 (2d
Cir. 2010) (quoting United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009)). “A
sentencing judge has very wide latitude to decide the proper degree of
punishment for an individual offender and a particular crime[,]” and “[w]e will . . .
set aside a district court’s substantive determination only in exceptional cases
where the trial court’s decision cannot be located within the range of permissible
decisions.” United States v. Cavera, 550 F.3d 180, 188, 189 (2d Cir. 2008) (en banc)
(internal quotation marks and citation omitted). We “may consider whether a
factor relied on by a sentencing court can bear the weight assigned to it” under the
totality of the circumstances in a case, but this review is similarly deferential. Id.
at 191.
Although Caraher was sentenced to a term of imprisonment well below the
recommended guidelines range for the crimes to which he pled guilty, he contends
that any consideration of the guidelines for child pornography offenses is
inappropriate. We apply the child pornography guidelines “with great care” in
order to prevent the imposition of unreasonable sentences. United States v.
Dorvee, 616 F.3d 174, 184 (2d Cir. 2010). We do not, however, require courts to
disregard the guidelines entirely. When it fashioned his sentence, the district
15 court considered Caraher’s lack of criminal history, family support, and
willingness to accept treatment. In fact, the district court found that Caraher was
a “unique case” and that although the court typically did not vary from the
recommended guideline ranges, it was appropriate to do so here. A355.
Caraher’s sentence was not unreasonable.
CONCLUSION
We have considered Caraher’s remaining arguments and find them to be
without merit. The judgment of the district court is AFFIRMED.