FILED NOT FOR PUBLICATION JAN 21 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10038
Plaintiff-Appellee, D.C. No. 3:16-cr-00210-WHA-1
v. MEMORANDUM* GEORGE VORTMAN,
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding
Submitted January 8, 2020** San Francisco, California
Before: W. FLETCHER and FRIEDLAND, Circuit Judges, and HILLMAN,*** District Judge.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Timothy Hillman, United States District Judge for the District of Massachusetts, sitting by designation. Defendant-Appellant George Vortman appeals the district court’s orders
denying his motion to suppress evidence and motion to dismiss his indictment.
Vortman argues that the government obtained evidence against him pursuant to a
warrant that was issued in violation of Federal Rule of Criminal Procedure 41, and
that was overbroad and not supported by probable cause. He further claims that
the government’s outrageous conduct warrants dismissal of his indictment. We
review both of the district court’s denials de novo, see United States v. Ruckes, 586
F.3d 713, 716 (9th Cir. 2009); United States v. Black, 733 F.3d 294, 301 (9th Cir.
2013), and affirm both orders.
This court has already examined the precise warrant at issue in the context of
another case. See United States v. Henderson, 906 F.3d 1109 (9th Cir. 2018). We
thus review the warrant and the related technology only briefly here.
In 2014, the Federal Bureau of Investigation (“FBI”) began investigating
“Playpen,” an online forum for sending and receiving child pornography. In
January 2015, the FBI seized Playpen’s servers and later began to operate the
Playpen website from FBI facilities in Virginia. In February 2015, the FBI
obtained a warrant from a magistrate judge in the Eastern District of Virginia
authorizing use of a Network Investigative Technique (“NIT”), in order to identify
Playpen users (“the NIT warrant”).
2 The NIT warrant authorized search of all “activating computers,” or the
computers “of any user or administrator who logs into [Playpen] by entering a
username and password,” “wherever [that computer was] located.” When a person
logged into, or “activated,” Playpen with a username and password, the NIT
technology would cause the user’s computer to send seven pieces of identifying
information to the government server, such as the computer’s internet protocol
address. Id. at 1112. This technology was allegedly necessary because Playpen
was hosted on an anonymous network that allowed users to access websites
without otherwise revealing identifying information. See id.
Using the NIT, the FBI found that the user “childpornstar” had registered
with Playpen on January 3, 2015, a month before the FBI’s takeover of Playpen,
had accessed child pornography videos, and had actively logged onto Playpen for
approximately 18 hours between January 3, 2015 and March 4, 2015. The FBI
traced the user’s IP address to a residence in San Francisco, which it searched
pursuant to a separate warrant. The FBI seized a number of digital devices
belonging to Vortman with more than 1,000 photographs and 150 videos of child
pornography. Vortman was later charged with violating 18 U.S.C. § 2252(a)(2),
(b)(1), “Receipt of Child Pornography” and 18 U.S.C. § 2252(a)(4)(B), (b)(2),
“Possession of Child Pornography.”
3 Vortman challenges the NIT warrant on two grounds. First, he argues that
because the warrant was issued in violation of Federal Rule of Civil Procedure 41,
evidence seized pursuant to it should be suppressed. In Henderson, we held that
the NIT warrant violated Rule 41, but held that the good-faith exception
nevertheless excused the violation. See id. at 1119–20. Vortman offers no reason
to depart from that holding here, and we thus hold that the good-faith exception
excused the violation here.
Next, Vortman argues that the NIT warrant was overbroad and was not
supported by probable cause. We review the specificity of a warrant de novo,
United States v. Wong, 334 F.3d 831, 836 (9th Cir. 2003), and a finding of
probable cause for clear error, United States v. Meek, 366 F.3d 705, 712 (9th Cir.
2004).
The NIT warrant was not overbroad. See Henderson, 906 F.3d at 1119. It
described the place to be searched (activating computers) and the information to be
seized (seven pieces of identifying information) with particularity. See United
States v. Smith, 424 F.3d 992, 1004 (9th Cir. 2005).
Furthermore, the NIT warrant authorized only search of “activating”
computers—i.e., those that logged into Playpen during the time the government
operated the website with a username and password. In order to use an “activating
4 computer,” a user had to first download and install software to use the
anonymizing network on which Playpen operated. Next, a user could not access
Playpen through the open internet, but would instead have to find and input
Playpen’s exact algorithmic address (which we decline to provide here).
Henderson, 906 F.3d at 1111. In order to access Playpen’s contents, the user
would have to navigate past Playpen’s homepage, which depicted two minor
females with their legs spread apart, and register with a username and password.
Because there were multiple affirmative steps required to be an “activating
computer,” the warrant applied to those actively attempting to access child
pornography. It did not sweep too broadly.
Vortman next argues that the NIT warrant lacked probable cause because
Playpen users could be attempting to access the legal content on Playpen, such as
its fiction stories. The district court’s finding of probable cause was not clear
error. See United States v. Vortman, 2016 WL 7324987, at *7–*9 (N.D. Cal. Dec.
16, 2016). First, as the district court pointed out, we rejected a similar argument in
United States v. Gourde, 440 F.3d 1065, 1070 (9th Cir. 2006). Second, the
multiple affirmative steps a user had to take in order to access any Playpen content
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FILED NOT FOR PUBLICATION JAN 21 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10038
Plaintiff-Appellee, D.C. No. 3:16-cr-00210-WHA-1
v. MEMORANDUM* GEORGE VORTMAN,
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding
Submitted January 8, 2020** San Francisco, California
Before: W. FLETCHER and FRIEDLAND, Circuit Judges, and HILLMAN,*** District Judge.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Timothy Hillman, United States District Judge for the District of Massachusetts, sitting by designation. Defendant-Appellant George Vortman appeals the district court’s orders
denying his motion to suppress evidence and motion to dismiss his indictment.
Vortman argues that the government obtained evidence against him pursuant to a
warrant that was issued in violation of Federal Rule of Criminal Procedure 41, and
that was overbroad and not supported by probable cause. He further claims that
the government’s outrageous conduct warrants dismissal of his indictment. We
review both of the district court’s denials de novo, see United States v. Ruckes, 586
F.3d 713, 716 (9th Cir. 2009); United States v. Black, 733 F.3d 294, 301 (9th Cir.
2013), and affirm both orders.
This court has already examined the precise warrant at issue in the context of
another case. See United States v. Henderson, 906 F.3d 1109 (9th Cir. 2018). We
thus review the warrant and the related technology only briefly here.
In 2014, the Federal Bureau of Investigation (“FBI”) began investigating
“Playpen,” an online forum for sending and receiving child pornography. In
January 2015, the FBI seized Playpen’s servers and later began to operate the
Playpen website from FBI facilities in Virginia. In February 2015, the FBI
obtained a warrant from a magistrate judge in the Eastern District of Virginia
authorizing use of a Network Investigative Technique (“NIT”), in order to identify
Playpen users (“the NIT warrant”).
2 The NIT warrant authorized search of all “activating computers,” or the
computers “of any user or administrator who logs into [Playpen] by entering a
username and password,” “wherever [that computer was] located.” When a person
logged into, or “activated,” Playpen with a username and password, the NIT
technology would cause the user’s computer to send seven pieces of identifying
information to the government server, such as the computer’s internet protocol
address. Id. at 1112. This technology was allegedly necessary because Playpen
was hosted on an anonymous network that allowed users to access websites
without otherwise revealing identifying information. See id.
Using the NIT, the FBI found that the user “childpornstar” had registered
with Playpen on January 3, 2015, a month before the FBI’s takeover of Playpen,
had accessed child pornography videos, and had actively logged onto Playpen for
approximately 18 hours between January 3, 2015 and March 4, 2015. The FBI
traced the user’s IP address to a residence in San Francisco, which it searched
pursuant to a separate warrant. The FBI seized a number of digital devices
belonging to Vortman with more than 1,000 photographs and 150 videos of child
pornography. Vortman was later charged with violating 18 U.S.C. § 2252(a)(2),
(b)(1), “Receipt of Child Pornography” and 18 U.S.C. § 2252(a)(4)(B), (b)(2),
“Possession of Child Pornography.”
3 Vortman challenges the NIT warrant on two grounds. First, he argues that
because the warrant was issued in violation of Federal Rule of Civil Procedure 41,
evidence seized pursuant to it should be suppressed. In Henderson, we held that
the NIT warrant violated Rule 41, but held that the good-faith exception
nevertheless excused the violation. See id. at 1119–20. Vortman offers no reason
to depart from that holding here, and we thus hold that the good-faith exception
excused the violation here.
Next, Vortman argues that the NIT warrant was overbroad and was not
supported by probable cause. We review the specificity of a warrant de novo,
United States v. Wong, 334 F.3d 831, 836 (9th Cir. 2003), and a finding of
probable cause for clear error, United States v. Meek, 366 F.3d 705, 712 (9th Cir.
2004).
The NIT warrant was not overbroad. See Henderson, 906 F.3d at 1119. It
described the place to be searched (activating computers) and the information to be
seized (seven pieces of identifying information) with particularity. See United
States v. Smith, 424 F.3d 992, 1004 (9th Cir. 2005).
Furthermore, the NIT warrant authorized only search of “activating”
computers—i.e., those that logged into Playpen during the time the government
operated the website with a username and password. In order to use an “activating
4 computer,” a user had to first download and install software to use the
anonymizing network on which Playpen operated. Next, a user could not access
Playpen through the open internet, but would instead have to find and input
Playpen’s exact algorithmic address (which we decline to provide here).
Henderson, 906 F.3d at 1111. In order to access Playpen’s contents, the user
would have to navigate past Playpen’s homepage, which depicted two minor
females with their legs spread apart, and register with a username and password.
Because there were multiple affirmative steps required to be an “activating
computer,” the warrant applied to those actively attempting to access child
pornography. It did not sweep too broadly.
Vortman next argues that the NIT warrant lacked probable cause because
Playpen users could be attempting to access the legal content on Playpen, such as
its fiction stories. The district court’s finding of probable cause was not clear
error. See United States v. Vortman, 2016 WL 7324987, at *7–*9 (N.D. Cal. Dec.
16, 2016). First, as the district court pointed out, we rejected a similar argument in
United States v. Gourde, 440 F.3d 1065, 1070 (9th Cir. 2006). Second, the
multiple affirmative steps a user had to take in order to access any Playpen content
establish a “fair probability” that registered users were accessing illegal content.
Meek, 366 F.3d at 712. That “fair probability” becomes considerable when
5 factoring in that the overwhelming majority of Playpen’s content was patently
illegal depictions of child pornography.
Finally, Vortman argues that the government acted so outrageously by
operating Playpen as to warrant dismissal of his indictment. To prevail on a
governmental misconduct claim, Vortman must meet the “extremely high
standard” of showing that the facts underlying his arrest and prosecution “violate[]
fundamental fairness” or are “so grossly shocking . . . as to violate the universal
sense of justice.” Black, 733 F.3d at 298; see also United States v. Russell, 411
U.S. 423, 431–32 (1973). Vortman fails to meet this high standard.
To determine whether government conduct was outrageous, a court
generally considers the six Black factors. See Black, 733 F.3d at 303. The district
court appropriately concluded that all six factors weighed against dismissal. See
Vortman, 2016 WL 7324987, at *5–*6. The first two factors, (1) known criminal
characteristics of the defendant and (2) individualized suspicion of the defendant,
weigh against dismissal because the government reasonably believed that
registered Playpen users were viewing and sharing child pornography. The next
two factors, (3) the government’s role in creating the crime of conviction and (4)
the government’s encouragement of the defendants to commit the offense, weigh
against dismissal because Vortman voluntarily accessed Playpen before
6 government seizure and then again without any government prompting. Next, (5)
the nature of the government’s participation in the offense, weighs against
dismissal because the government operated Playpen for only two weeks, acted as a
mere observer, and began the enterprise only after Vortman had already accessed
Playpen. Finally, (6) the nature of the crime being pursued and necessity for the
actions taken, weighs against dismissal because due to the anonymous network on
which Playpen operated, other investigative procedures were likely to fail.
Moreover, we have rejected the outrageous conduct argument in comparable
governmental stings involving arguably more outrageous conduct. See, e.g.,
United States v. Mayer, 503 F.3d 740, 754–55 (9th Cir. 2007); United States v.
Mitchell, 915 F.2d 521, 525–26 (9th Cir. 1990). The government’s conduct does
not warrant dismissal of Vortman’s indictment.
AFFIRMED.