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United States v. Stepus

United States District Court, D. Massachusetts

March 12, 2018

UNITED STATES OF AMERICA, Plaintiff
v.
VICTOR STEPUS, Defendant

          MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION FOR ADDITIONAL DISCOVERY MATERIALS (DKT. NO. 160)

          KATHERINE A. ROBERTSON, UNITED STATES MAGISTRATE JUDGE.

         I. Background

         Defendant Victor Stepus' ("Defendant") arrest and subsequent indictment for child pornography related charges arose from a wide-ranging investigation conducted by the Federal Bureau of Investigation (“FBI”) of a child pornography website called “Playpen.” See United States v. Levin, 874 F.3d 316, 318, 320 (1st Cir. 2017). The Playpen website was only accessible through the “Tor” internet network, which, along with similar networks, is known as the Dark Web. See Id. at 319. Users access the Tor network by downloading the Tor software. See Id. "By masking its users' actual IP addresses - which could otherwise be used to identify users - that software offers its users much greater anonymity than do conventional web browsers." Id.

         The FBI seized control of the Playpen website pursuant to a warrant in February 2015. See Id. at 320. Thereafter, they ran the Playpen website in the Eastern District of Virginia for approximately two weeks. See Id. at 320. A warrant issued by a magistrate judge in that district "permitted the FBI to install the [Network Investigative Technique ("NIT") software] on its server that hosted Playpen, and thereby to obtain information from '[t]he activating computers [which] are those of any user or administrator who logs into [Playpen] by entering a username and password.' The warrant authorized the FBI to obtain seven items of information . . . [including] the activating computer's actual IP address." Id. at 318, 320.

         Using the NIT software, the FBI collected hundreds of IP addresses from users of the Playpen website, including an address associated with Defendant's computer located at his home in Chicopee, Massachusetts. See Id. at 320; United States v. Gaver, Case No. 3:16-cr-88, 2017 WL 1134814, at *1 (S.D. Ohio Mar. 27, 2017); United States v. Stepus, Criminal Case No. 15-30028-MGM, 2016 WL 6518427, at *1 (D. Mass. Oct. 28, 2016). After obtaining a warrant from the undersigned, FBI agents searched Defendant's home on August 21, 2015 and seized four computers and numerous digital DVDs that Defendant indicated contained child pornography (Dkt. No. 1 at 3, 5). See Stepus, 2016 WL 6518427, at *1. During an audio-recorded interview with the FBI, Defendant admitted that he had used his home computer to access and download child pornography during the past several years (Dkt. No. 1 at 4). Defendant was subsequently indicted by a Grand Jury for the United States District Court for the District of Massachusetts and charged with three counts of receipt of material involving the sexual exploitation of minors, in violation of 18 U.S.C. § 2252(a)(2), and one count of possession of material involving the sexual exploitation of minors, in violation of 18 U.S.C. § 2252(a)(4)(B) (Dkt. No. 15).

         On September 26, 2017, Defendant moved to compel the government to produce "the actual [NIT] source code written by [g]overnment programmers to create the exploit and the payload, as well as a description of the process used by the exploit to deliver and use the payload on a given computer" (Dkt. No. 160). The United States of America ("the government") opposed Defendant's motion (Dkt. No. 165) and Defendant responded (Dkt. No. 168-1). After hearing from the parties on February 9, 2018, the court DENIES Defendant's motion for the reasons that follow.

         II. Discussion

         A. Legal Standard

         Defendant cites Federal Rule of Criminal Procedure 16(a)(1)(E) in support of his Motion for Additional Discovery Materials. Rule 16(a)(1)(E) states:

[u]pon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and: (i) the item is material to preparing the defense . . . .

Fed. R. Crim. P. 16(a)(1)(E). “The defendant, as the moving party, bears the burden of showing materiality.” United States v. Goris, 876 F.3d 40, 44 (1st Cir. 2017). The First Circuit recently stated that “a showing of materiality requires ‘some indication' that pretrial disclosure of the information sought ‘would have enabled the defendant significantly to alter the quantum of proof in his favor.'” Id. at 45 (quoting United States v. Ross, 511 F.2d 757, 763 (5th Cir. 1975)).

         B. The Requested Information is not Material.

         Defendant relies on another Playpen case, United States v. Tippens, No. 3:16-cr-05110-RJB, No. 2:15-cr-00387-RJB, No. 2:15-cr-00274-RJB, 2016 U.S. Dist. LEXIS 184174 (W.D. Wa. Nov. 30, 2016), to support his request. In Tippens, the government utilized the same NIT as was used in the present case and "offered to stipulate for trial purposes that an exploit can make changes to security settings that would allow a third party to run commands on a computer without the computer user's knowledge."[1] Tippens, 2016 U.S. Dist. LEXIS 184174, at *10. Defendant avers that changes allegedly resulting from deployment of the NIT could have allowed a third party to “access, modify and store information on the Defendant's computer without leaving traces of their actions” (Dkt. No. 168-1 at 1-2).

         Defendant offers the affidavit of his computer expert, Robert Young, to buttress his request (Dkt. No. 168-3). Young states that access to the government's exploit source code is necessary to “determine whether or not the Exploit altered any security settings, or whether or not the Exploit took steps to ensure the actions it took would not leave the Defendant's computer more vulnerable, and whether or not the ...


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