NOT RECOMMENDED FOR PUBLICATION File Name: 20a0150n.06
No. 19-5686
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED UNITED STATES OF AMERICA, ) Mar 13, 2020 ) DEBORAH S. HUNT, Clerk Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE WESTERN DENNIS AMMONS, ) DISTRICT OF KENTUCKY ) Defendant-Appellant. ) )
Before: MERRITT, THAPAR, and LARSEN, Circuit Judges.
LARSEN, Circuit Judge. A jury convicted Dennis Ammons of knowingly accessing child
pornography with intent to view it. The district court sentenced him to 110 months in prison. On
appeal, Ammons challenges both his conviction and his sentence. We AFFIRM.
I.
In 2014, the FBI began investigating a website known as “Playpen.” Playpen was an online
forum that advertised and distributed child pornography. Once logged in, users could view an
extensive collection of pictures and videos containing child pornography.
Playpen was not accessible through traditional internet browsers. Instead, the site could
only be accessed through what is colloquially referred to as the “dark web.” See United States v.
Tagg, 886 F.3d 579, 582 (6th Cir. 2018). Users had to download special software known as “The
Onion Router” or “Tor,” which allowed them to anonymously access a network of hidden
websites. Through the Tor software, users then had to input an intricate web address consisting of
random, algorithm-generated characters to reach Playpen’s site. This web address was not linked No. 19-5686, United States v. Ammons
to traditional search engines like Google; it had to be obtained through other means, such as direct
communication with pre-existing users.
With help from a foreign government, the FBI located a server containing a copy of
Playpen’s website. In January of 2015, agents obtained a search warrant and seized a copy of that
server. Agents then identified and apprehended Playpen’s administrator the following month. At
that point, the FBI assumed control over Playpen. But even having control did not allow the FBI
to identify the website’s users; the Tor software masked their IP addresses.
The government sought a warrant from a magistrate judge in the Eastern District of
Virginia—where the FBI had transported Playpen’s server—to deploy what is known as a
“Network Investigative Technique” (NIT). An NIT is a form of “government-created malware.”
United States v. Werdene, 883 F.3d 204, 206 (3d Cir. 2018). It unmasks a user’s IP address by
embedding instructions within the website’s code that force the user’s computer to transmit its IP
address to a government-controlled server. The magistrate judge issued the warrant on February
20, 2015 (the Virginia Warrant).
Using the NIT, the government obtained an IP address associated with the username
“H8RL3Y.” This user had accessed several child-pornography images on Playpen over a six-hour
period in early March 2015. The user had also responded to a post titled “Pthc 14Y Lil Zinaida
13Y Boy (51.15),” asking “What’s the password?” The post contained a link to an external website
where visitors could download child pornography.
The FBI ultimately traced H8RL3Y’s IP address to a home in Muldraugh, Kentucky, where
Ammons lived with his sister and her two minor children. The government sought and obtained a
warrant to physically search Ammons’ residence for evidence of child pornography (the Kentucky
Warrant). The application for the Kentucky Warrant relied on the information obtained through
-2- No. 19-5686, United States v. Ammons
the NIT to establish probable cause. The subsequent search and seizure of Ammons’ computer
revealed 220 child-pornography images (113 non-duplicates) stored in the cache of his Chrome
web-browser. The metadata attached to these images indicated that they had been accessed on
October 22, 2015.
Following the search, the FBI interviewed Ammons. He waived his Miranda rights and
agreed to answer the agents’ questions. Ammons told the agents that he was the primary user of
the computer in his household. He also explained that he had installed a password protected
wireless router in the house a few months earlier. Finally, after initially denying ever seeing child
pornography, Ammons admitted that he came across child pornography while exploring the “dark
web.” He named multiple sites where he had seen child pornography and described the images to
the agents—though he claimed he was not a “collector” of these images.
The FBI also interviewed Ammons’ 16-year-old niece, who lived in his Kentucky home.
She told agents that Ammons had previously taken nude photographs of her. She described an
incident in which Ammons had caught her taking nude pictures of herself. She stated that Ammons
confronted her, confiscated the phone on which she had taken the pictures, and threatened to tell
her mother unless she agreed to pose nude for Ammons. She claimed that Ammons then took
nude photographs of her, forcing her to pose with her legs spread apart exposing her genitals.
These photographs were never found.
A grand jury indicted Ammons on two counts: (1) production of child pornography, in
violation 18 U.S.C. § 2251(a) and (e); and (2) knowingly accessing child pornography with intent
to view it, in violation of 18 U.S.C. § 2252A(a)(5)(B). Prior to trial, Ammons moved to suppress
the evidence obtained from his computer through both the NIT and the physical search of his home.
He argued that the Virginia Warrant was invalid because the issuing magistrate judge lacked
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jurisdiction over Kentucky, where Ammons’ computer was located when the government
implemented the NIT. Because the subsequent Kentucky Warrant was obtained with information
from the NIT, Ammons contended that evidence from both searches must be suppressed. The
district court denied Ammons’ motion, and the case proceeded to trial.
After trial, the jury rendered a split verdict, acquitting Ammons of producing child
pornography but convicting him of knowingly accessing child pornography with intent to view it.
Ammons moved for a judgment of acquittal, arguing that the evidence was insufficient to support
his conviction. The district court denied his motion.
Ammons’ conviction carried a maximum prison sentence of ten years. See 18 U.S.C.
§ 2252A(b)(2). At sentencing, the district court concluded that the appropriate Guidelines range
was 108 to 120 months. Ammons argued that his Guidelines range was unreasonable.
Specifically, he contended that the enhancements contained in U.S.S.G. § 2G2.2 resulted in nearly
all child-pornography offenders receiving the maximum sentence; as a result, Ammons argued,
the court should ignore those enhancements and issue a below-Guidelines sentence. The district
court disagreed, sentencing Ammons to 110 months in prison—10 months shy of the statutory
maximum. Ammons appealed.
II.
A.
Ammons argues first that the district court erred by denying his motion to suppress.
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NOT RECOMMENDED FOR PUBLICATION File Name: 20a0150n.06
No. 19-5686
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED UNITED STATES OF AMERICA, ) Mar 13, 2020 ) DEBORAH S. HUNT, Clerk Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE WESTERN DENNIS AMMONS, ) DISTRICT OF KENTUCKY ) Defendant-Appellant. ) )
Before: MERRITT, THAPAR, and LARSEN, Circuit Judges.
LARSEN, Circuit Judge. A jury convicted Dennis Ammons of knowingly accessing child
pornography with intent to view it. The district court sentenced him to 110 months in prison. On
appeal, Ammons challenges both his conviction and his sentence. We AFFIRM.
I.
In 2014, the FBI began investigating a website known as “Playpen.” Playpen was an online
forum that advertised and distributed child pornography. Once logged in, users could view an
extensive collection of pictures and videos containing child pornography.
Playpen was not accessible through traditional internet browsers. Instead, the site could
only be accessed through what is colloquially referred to as the “dark web.” See United States v.
Tagg, 886 F.3d 579, 582 (6th Cir. 2018). Users had to download special software known as “The
Onion Router” or “Tor,” which allowed them to anonymously access a network of hidden
websites. Through the Tor software, users then had to input an intricate web address consisting of
random, algorithm-generated characters to reach Playpen’s site. This web address was not linked No. 19-5686, United States v. Ammons
to traditional search engines like Google; it had to be obtained through other means, such as direct
communication with pre-existing users.
With help from a foreign government, the FBI located a server containing a copy of
Playpen’s website. In January of 2015, agents obtained a search warrant and seized a copy of that
server. Agents then identified and apprehended Playpen’s administrator the following month. At
that point, the FBI assumed control over Playpen. But even having control did not allow the FBI
to identify the website’s users; the Tor software masked their IP addresses.
The government sought a warrant from a magistrate judge in the Eastern District of
Virginia—where the FBI had transported Playpen’s server—to deploy what is known as a
“Network Investigative Technique” (NIT). An NIT is a form of “government-created malware.”
United States v. Werdene, 883 F.3d 204, 206 (3d Cir. 2018). It unmasks a user’s IP address by
embedding instructions within the website’s code that force the user’s computer to transmit its IP
address to a government-controlled server. The magistrate judge issued the warrant on February
20, 2015 (the Virginia Warrant).
Using the NIT, the government obtained an IP address associated with the username
“H8RL3Y.” This user had accessed several child-pornography images on Playpen over a six-hour
period in early March 2015. The user had also responded to a post titled “Pthc 14Y Lil Zinaida
13Y Boy (51.15),” asking “What’s the password?” The post contained a link to an external website
where visitors could download child pornography.
The FBI ultimately traced H8RL3Y’s IP address to a home in Muldraugh, Kentucky, where
Ammons lived with his sister and her two minor children. The government sought and obtained a
warrant to physically search Ammons’ residence for evidence of child pornography (the Kentucky
Warrant). The application for the Kentucky Warrant relied on the information obtained through
-2- No. 19-5686, United States v. Ammons
the NIT to establish probable cause. The subsequent search and seizure of Ammons’ computer
revealed 220 child-pornography images (113 non-duplicates) stored in the cache of his Chrome
web-browser. The metadata attached to these images indicated that they had been accessed on
October 22, 2015.
Following the search, the FBI interviewed Ammons. He waived his Miranda rights and
agreed to answer the agents’ questions. Ammons told the agents that he was the primary user of
the computer in his household. He also explained that he had installed a password protected
wireless router in the house a few months earlier. Finally, after initially denying ever seeing child
pornography, Ammons admitted that he came across child pornography while exploring the “dark
web.” He named multiple sites where he had seen child pornography and described the images to
the agents—though he claimed he was not a “collector” of these images.
The FBI also interviewed Ammons’ 16-year-old niece, who lived in his Kentucky home.
She told agents that Ammons had previously taken nude photographs of her. She described an
incident in which Ammons had caught her taking nude pictures of herself. She stated that Ammons
confronted her, confiscated the phone on which she had taken the pictures, and threatened to tell
her mother unless she agreed to pose nude for Ammons. She claimed that Ammons then took
nude photographs of her, forcing her to pose with her legs spread apart exposing her genitals.
These photographs were never found.
A grand jury indicted Ammons on two counts: (1) production of child pornography, in
violation 18 U.S.C. § 2251(a) and (e); and (2) knowingly accessing child pornography with intent
to view it, in violation of 18 U.S.C. § 2252A(a)(5)(B). Prior to trial, Ammons moved to suppress
the evidence obtained from his computer through both the NIT and the physical search of his home.
He argued that the Virginia Warrant was invalid because the issuing magistrate judge lacked
-3- No. 19-5686, United States v. Ammons
jurisdiction over Kentucky, where Ammons’ computer was located when the government
implemented the NIT. Because the subsequent Kentucky Warrant was obtained with information
from the NIT, Ammons contended that evidence from both searches must be suppressed. The
district court denied Ammons’ motion, and the case proceeded to trial.
After trial, the jury rendered a split verdict, acquitting Ammons of producing child
pornography but convicting him of knowingly accessing child pornography with intent to view it.
Ammons moved for a judgment of acquittal, arguing that the evidence was insufficient to support
his conviction. The district court denied his motion.
Ammons’ conviction carried a maximum prison sentence of ten years. See 18 U.S.C.
§ 2252A(b)(2). At sentencing, the district court concluded that the appropriate Guidelines range
was 108 to 120 months. Ammons argued that his Guidelines range was unreasonable.
Specifically, he contended that the enhancements contained in U.S.S.G. § 2G2.2 resulted in nearly
all child-pornography offenders receiving the maximum sentence; as a result, Ammons argued,
the court should ignore those enhancements and issue a below-Guidelines sentence. The district
court disagreed, sentencing Ammons to 110 months in prison—10 months shy of the statutory
maximum. Ammons appealed.
II.
A.
Ammons argues first that the district court erred by denying his motion to suppress.
Evidence obtained in violation of the Fourth Amendment may be subject to suppression at trial.
See United States v. Fisher, 745 F.3d 200, 203 (6th Cir. 2014). But not all Fourth Amendment
violations result in suppression. Id. The exclusionary rule’s “sole purpose” is to deter Fourth
Amendment violations. See Davis v. United States, 564 U.S. 229, 236 (2011). Thus, when officers
-4- No. 19-5686, United States v. Ammons
“conduct a search in objectively reasonable reliance on a warrant later held invalid,” the
exclusionary rule does not apply. Id. at 238–39 (quotation marks omitted). This is known as the
“good-faith exception” to the exclusionary rule. Fisher, 745 F.3d at 203.
The district court denied Ammons’ suppression motion because it concluded that the good-
faith exception applied. Ammons challenges that conclusion on appeal. He argues that the good-
faith exception is categorically inapplicable to warrants that are void ab initio for lack of
jurisdiction.1 And, even if the good-faith exception could apply, he argues that the agents’ reliance
on the Virginia Warrant was objectively unreasonable.
The Virginia Warrant “has implicated more than a hundred defendants across the United
States,” United States v. Horton, 863 F.3d 1041, 1045–46 (8th Cir. 2017) (collecting cases), so it
is perhaps unsurprising that this is not our first encounter with a suppression claim like Ammons’.
Indeed, in United States v. Moorehead, 912 F.3d 963, 967 (6th Cir. 2019), we rejected the same
objections to good-faith reliance on the Virginia Warrant that Ammons raises here. See id. at 968,
970. Moorehead, therefore, forecloses both of Ammons’ arguments. In his reply brief, Ammons
asks us to disregard Moorehead and rely instead on our earlier decision in United States v. Scott,
which held that the good-faith exception does not apply “whe[n] a warrant is issued by a person
lacking the requisite legal authority.” 260 F.3d 512, 515 (6th Cir. 2001). But Moorehead rejected
that argument as well. See 912 F.3d at 969 (recognizing that Scott’s holding had been modified
1 Ammons’ argument that the Virginia Warrant is void ab initio for lack of jurisdiction is based, in part, on the Federal Rules of Criminal Procedure as they existed at the time of the search. Because we conclude that the good-faith exception applies, we need not decide whether the warrant was invalid. We note, however, that the Rules were later amended to expressly authorize warrants like the Virginia Warrant. See Fed. R. Crim. P. 41(b)(6) (“[A] magistrate judge having authority in any district where activities related to a crime may have occurred has authority to issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district . . . .”). -5- No. 19-5686, United States v. Ammons
by our decision in United States v. Master, 614 F.3d 236, 242–43 (6th Cir. 2010), due to
intervening Supreme Court precedent). Accordingly, we affirm the district court’s denial of
Ammons’ suppression motion.
B.
Ammons’ sentencing challenge is likewise foreclosed by our precedent. He argues that the
enhancements outlined in U.S.S.G. § 2G2.2 are so broadly applicable in child-pornography cases
that a sentence premised on those enhancements is substantively unreasonable. He concedes,
however, that this argument is directly foreclosed by our decision in United States v. Lynde, 926
F.3d 275 (6th Cir. 2019); he nonetheless wishes to preserve this argument for further review.
Ammons is right that Lynde controls and forecloses his claim to sentencing relief here. See 926
F.3d at 279–80.
C.
Finally, Ammons argues that the district court erred in denying his motion for acquittal
because the evidence presented at trial was insufficient to prove his guilt beyond a reasonable
doubt. This is a question of law that we review de novo. United States v. Graham, 622 F.3d 445,
448 (6th Cir. 2010). A defendant claiming evidence insufficiency must meet “a very heavy
burden.” United States v. Abboud, 438 F.3d 554, 589 (6th Cir. 2006) (quoting United States v.
Vannerson, 786 F.2d 221, 225 (6th Cir. 1986)). We view all evidence “in [the] light most favorable
to the prosecution, giving the prosecution the benefit of all reasonable inferences from the
testimony.” United States v. McAuliffe, 490 F.3d 526, 537 (6th Cir. 2007). And we may disturb
-6- No. 19-5686, United States v. Ammons
the jury’s verdict only if no “rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Id.
Section 2252A(a)(5)(B) forbids “[a]ny person” to “knowingly access[] with intent to
view[] any . . . material that contains an image of child pornography.” Thus, to convict Ammons,
the prosecution had to prove beyond a reasonable doubt that Ammons (1) knowingly accessed with
intent to view, (2) any material, (3) that he knew contained an image of child pornography. See
United States v. Brune, 767 F.3d 1009, 1020 (10th Cir. 2014).
Ammons attempts to refute the first element. He points to the fact that the images
containing child pornography were found in his web browser’s cache. Cache is a storage drive
used by web browsers, like Google Chrome, to locally save web pages visited by a user. By storing
this information, cache allows web browsers to more quickly load web content. Importantly,
though, not all content stored in cache has necessarily been seen by the user. For example, when
a page on a website requires users to scroll down to see more content, all of the page’s content is
stored in cache even if the user never scrolls to the bottom of the page. Additionally, material
from external websites linked to the website being viewed may be stored in cache in anticipation
that the user might click on the link. Because it is technically possible that the 220 images of child
pornography found in Ammons’ cache were stored without him viewing the material, Ammons
contends that no rational juror could have found him guilty beyond a reasonable doubt.
We disagree. First, Ammons’ argument relies on a false premise. A conviction under
§ 2252A(a)(5)(B) does not require the defendant to have actually viewed the illegal images. See
Tagg, 886 F.3d at 587. “The access-with-intent offense is complete the moment that the elements
of access and intent coincide.” Id. Thus, the jury could have convicted Ammons if it found that
he knowingly accessed a child-pornography website with intent to view illicit images, but stopped
-7- No. 19-5686, United States v. Ammons
short of actually viewing the images. Id. (“[E]ven if the person never viewed illegal child
pornography, knowingly accessing a child-pornography website with the intent to view illegal
materials is itself a criminal act.”).
Second, the government presented ample evidence at trial from which a rational juror could
find Ammons guilty—even under Ammons’ own theory of § 2252A(a)(5)(B). Agents Brian Coyt
and Virginia MacHenry, who interviewed Ammons after the search, testified that Ammons
admitted to viewing child pornography while browsing the internet. More specifically, the agents
said that Ammons admitted to installing the Tor software on his browser and encountering child
pornography on the dark web. The agents then explained that these websites on the dark web
could not be accessed through a traditional Google search, but instead had to be intentionally
sought out using the Tor software. Finally, Agent MacHenry testified that Ammons had admitted
to browsing forums on the traditional internet, such as 4chan, which “told him certain locations on
TOR to look for child pornography.” R. 125, PageID 866. While Ammons testified that the agents
were misrepresenting his statements during the interview, the jury was not required to credit his
testimony.
The prosecution also presented the testimony of Agent Amanda Rankhorn, the forensic
specialist who analyzed Ammons’ hard drive. Agent Rankhorn testified that, at 8:08 AM on
October 22, 2015, Ammons had entered a Google search for the term “jblover.” Rankhorn then
testified that the browser cache indicated that Ammons had visited the website “jblover.org,”
which included forums titled, “Jailbait forum – Stickam Captures – Omegle Captures.” And she
explained that many of the 220 images of child pornography found in Ammons’ cache contained
a logo for “omegle.com,” a video-chatting website. Finally, Rankhorn testified that most of the
images showed young girls with their legs spread apart exposing their genitals—which matched
-8- No. 19-5686, United States v. Ammons
testimony provided by Ammons’ niece, who told the jury that Ammons had forced her to pose in
the identical position. A sealed exhibit submitted to the jury contained a sample of 10 of the 220
images found on Ammons’ hard drive. Taking this evidence in the light most favorable to the
prosecution, a “rational trier of fact” certainly could have found Ammons guilty beyond a
reasonable doubt. See Graham, 622 F.3d at 448.
***
For the foregoing reasons, the judgment of the district court is AFFIRMED.
-9-