FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS, Hon. Patti B. Saris, U.S. District Judge
Zainabu Rumala, Assistant Federal Public Defender, Federal
Public Defender Office, was on brief, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Andrew E. Lelling, United States Attorney, was on brief, for
Torruella, Selya, and Barron, Circuit Judges.
TORRUELLA, CIRCUIT JUDGE.
case is one of many arising nationwide from the 2015 FBI
investigation into Playpen, an online forum hosted in the Tor
Network that allowed users to upload, download, and
distribute child pornography. Through that investigation,
defendant-appellant Vincent Anzalone ("Anzalone")
was identified as a Playpen user and indicted for possession
and receipt of child pornography. Anzalone thereafter moved
to suppress all evidence obtained pursuant to a Network
Investigative Technique ("NIT") warrant and to
dismiss his indictment for outrageous government conduct. The
district court denied both requests, which Anzalone asks us
to reconsider on appeal, and we now affirm.
interested in the particulars of the FBI's Playpen sting
should refer to our opinion in United States v.
Levin, 874 F.3d 316, 319-21 (1st Cir. 2017), which
was the first case to come before this court in relation to
this investigation. The background that follows thus only
focuses on the facts most pertinent to Anzalone's case.
evening of February 19, 2015, the FBI assumed control of
Playpen and decided to maintain the website live for two
weeks to identify and apprehend its users. On February 20,
the government obtained a warrant from a magistrate judge in
the Eastern District of Virginia authorizing it to deploy the
NIT. Id. at 320. A meticulous 31-page affidavit
accompanied the FBI's application for this warrant. The
affidavit's statement of facts in support of probable
cause described, among other things, the purpose of Playpen,
the Tor Network and its hidden services, the difficulty of
coming across Playpen without seeking out its content, and
the appearance of Playpen's homepage on February 18, 2015
-- two days before the FBI applied for the NIT warrant. With
regards to Playpen's homepage, the affidavit averred that
the page showed "two images depicting partially clothed
prepubescent females with their legs spread
apart." The affidavit also explained that Playpen
counseled its visitors not to use their real email addresses
to register with the website.
aside, the NIT allowed the FBI to identify Playpen users when
they entered their credentials to access the website.
Id. The NIT eventually led to the identification of
Anzalone as a Playpen user. During the two weeks that the
government ran Playpen, Anzalone was logged into the website
for twelve hours. On October 21, 2015, the FBI executed a
search warrant of Anzalone's residence. Anzalone waived
his Miranda rights and, in an interview at his home
with the FBI Child Exploitation Task Force agents who
executed the warrant, admitted to possessing child
pornography and to downloading it multiple times a week for
five or six years.
November 12, 2015, Anzalone was indicted with one count of
possession of child pornography under 18 U.S.C. §
2252A(a)(5)(B) and one count of receipt of child pornography
under 18 U.S.C. § 2252A(a)(2)(A). Anzalone then moved to
suppress all the evidence resulting from the NIT warrant,
arguing that the warrant: (1) was not rooted in probable
cause; (2) lacked particularity; (3) was supported by a
misleading affidavit; and (4) was issued in excess of the
magistrate judge's limited territorial jurisdiction.
Anzalone also sought to dismiss the indictment alleging that
the government engaged in outrageous conduct by running
Playpen for two weeks after seizing its control. The district
court denied these two motions, see United States v.
Anzalone, 221 F.Supp.3d 189 (D. Mass. 2016) (denying
the motion to dismiss); United States v.
Anzalone, 208 F.Supp.3d 358 (D. Mass. 2016) (denying
the motion to suppress), after which Anzalone pled guilty to
both charges while reserving his right to appeal. Anzalone
was sentenced to 84 months in prison and five years of
contests the district court's denial of his motion to
suppress on four grounds. First, Anzalone claims that the
affidavit presented to the magistrate judge in support of the
NIT warrant was insufficient to establish probable cause.
Second, he maintains that the government included
misstatements in the warrant affidavit. Third, Anzalone
insists that the magistrate judge lacked jurisdiction to
issue the NIT warrant pursuant to Rule 41 of the Federal
Rules of Criminal Procedure. Lastly, he argues that the good
faith exception established in United States v.
Leon, 468 U.S. 897 (1984), does not apply because the
government supplied misleading information to the magistrate
judge and knew of the jurisdictional limitations of Rule 41.
threshold matter, we find that our decision in Levin
forecloses both Anzalone's challenge under Rule 41 and
his argument about the alleged inapplicability of the
Leon good faith exception. In Levin, we
examined the same NIT warrant and considered a similar
argument about the magistrate judge's alleged lack of
jurisdiction to issue the warrant under Rule 41 as a basis to
suppress evidence. 874 F.3d at 318, 321. We concluded that
the Leon good faith exception applied and
suppression was not warranted "[r]egardless of whether a
Fourth Amendment violation occurred." Id. at
321. Specifically, we observed that there was no government
conduct to deter since "[f]aced with the novel question
of whether an NIT warrant can issue -- for which there was no
precedent on point --the government turned to the courts for
guidance" and that, "if anything, such conduct
should be encouraged, because it leaves it to the courts to
resolve novel legal issues." Id. at 323. We are
bound to follow Levin's reasoning on these
issues here.[2 ...