United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION
FOR ADDITIONAL DISCOVERY MATERIALS (DKT. NO. 160)
KATHERINE A. ROBERTSON, UNITED STATES MAGISTRATE JUDGE.
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."
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.
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).
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.
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)).
The Requested Information is not Material.
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." 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).
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