                                    PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
              _____________

                  No. 15-3537
                 _____________

        UNITED STATES OF AMERICA

                        v.

        APPLE MACPRO COMPUTER,
        APPLE MAC MINI COMPUTER,
           APPLE I PHONE 6 PLUS,
 ELLULAR TELEPHONE WESTERN DIGITAL
MY BOOK FOR MAC EXTERNAL HARD DRIVE,
Western Digital My Book Velociraptor Duo External
                   Hard Drive

                     *John Doe,
                          Appellant
      *(Pursuant to Rule 12(a), Fed. R. App. P.)

                 _____________

     On Appeal from the United States District Court
        for the Eastern District of Pennsylvania
              (D.C. No. 15-mj-00850-001)
         District Judge: Hon. L. Felipe Restrepo
                  _____________
                     Argued September 7, 2016

        Before:   JORDAN, VANASKIE, and NYGAARD,
                     Circuit Judges.

                   (Filed: March 20, 2017)


Keith M. Donoghue            [ARGUED]
Brett G. Sweitzer
Leigh M. Skipper
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street, Suite 540 West
Philadelphia, PA 19106
Counsel for Defendant-Appellant

Christopher C. Walsh
Adam Schwartz
Mark Rumold                [ARGUED]
Andrew Crocker
Electronic Frontier Foundation
815 Eddy Street
San Francisco, CA 94109
Counsel for Amicus Curiae

Leslie Caldwell
Nathan Judish               [ARGUED]
Bernadette McKeon
Michelle Rotella
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106


                              2
Counsel for Plaintiff-Appellee

                       ______________

                          OPINION
                       ______________

VANASKIE, Circuit Judge.



        This appeal concerns the Government’s ability to
compel the decryption of digital devices when the
Government seizes those devices pursuant to a valid search
warrant. The District Court found Appellant John Doe in
civil contempt for refusing to comply with an order issued
pursuant to the All Writs Act, 28 U.S.C. § 1651, which
required him to produce several seized devices in a fully
unencrypted state. Doe contends that the court did not have
subject matter jurisdiction to issue the order and that the order
itself violates his Fifth Amendment privilege against self-
incrimination. For the reasons that follow, we will affirm the
District Court’s order.

                                 I.

       During an investigation into Doe’s access to child
pornography over the internet, the Delaware County Criminal
Investigations Unit executed a valid search warrant at Doe’s
residence. During the search, officers seized an Apple iPhone
5S and an Apple Mac Pro Computer with two attached
Western Digital External Hard Drives, all of which had been




                                 3
protected with encryption software.1 Police subsequently
seized a password-protected Apple iPhone 6 Plus as well.

       Agents from the Department of Homeland Security
then applied for a federal search warrant to examine the
seized devices. Doe voluntarily provided the password for
the Apple iPhone 5S, but refused to provide the passwords to
decrypt the Apple Mac Pro computer or the external hard
drives. Despite Doe’s refusal, forensic analysts discovered
the password to decrypt the Mac Pro Computer, but could not
decrypt the external hard drives. Forensic examination of the
Mac Pro revealed an image of a pubescent girl in a sexually
provocative position and logs showing that the Mac Pro had
been used to visit sites with titles common in child
exploitation, such as “toddler_cp,” “lolicam,” “tor-childporn,”




       1
         Encryption technology allows a person to transform
plain, understandable information into unreadable letters,
numbers, or symbols using a fixed formula or process. Only
those who possess a corresponding “key” can return the
information into its original form, i.e. decrypt that
information. Encrypted information remains on the device in
which it is stored, but exists only in its transformed,
unintelligible format. Although encryption may be used to
hide illegal material, it also assists individuals and businesses
in lawfully safeguarding the privacy and security of
information. Many new devices include encryption tools as
standard features, and many federal and state laws either
require or encourage encryption to protect sensitive
information.



                               4
and “pthc.”2 (App. 39.) The Forensic examination also
disclosed that Doe had downloaded thousands of files known
by their “hash” values to be child pornography.3 The files,
however, were not on the Mac Pro, but instead had been
stored on the encrypted external hard drives. Accordingly,
the files themselves could not be accessed.

       As part of their investigation, the Delaware County
law enforcement officers also interviewed Doe’s sister, who
had lived with Doe during 2015. She related that Doe had
shown her hundreds of images of child pornography on the
encrypted external hard drives. She told the investigators that


       2
         According to the affidavit submitted in support of the
federal Government’s search warrant application, “cp” stands
for “child pornography” and “pthc” stands for “’pre-teen hard
core.” (App. 39.)
       3
           A “hash” is “[a] mathematical algorithm that
calculates a unique value for a given set of data, similar to a
digital fingerprint, representing the binary content of the data
to assist in subsequently ensuring that data has not been
modified.” The Sedona Conference Glossary for E-Discovery
and Digital Information Management 21 (Cheryl B. Harris, et
al. eds., 4th ed. 2014). Hash values are commonly used in
child pornography investigations. See, e.g., United States v.
Ross, 837 F.3d 85, 87 (1st Cir. 2014), United States v.
Ackerman, 831 F.3d 1292, 1294 (10th Cir. 2016); United
States v. Thomas, 788 F.3d 345, 348 n. 5 (2nd Cir. 2015);
United States v. Brown, 701 F.3d 120, 122 (4th Cir. 2012);
United States v. Cunningham, 694 F.3d 372, 376 (3d Cir.
2012; United States v. Cartier, 543 F.3d 442, 444-45 (8th Cir.
2008).


                               5
the external hard drives included “videos of children who
were nude and engaged in sex acts with other children.”
(App. 40.) Doe provided the password to access the iPhone 6
Plus, but did not grant access to an application on the phone
which contained additional encrypted information. Forensic
analysts concluded that the phone’s encrypted database
contained approximately 2,015 image and video files.

       On August 3, 2015, upon application of the
Government, a Magistrate Judge issued an order pursuant to
the All Writs Act requiring Doe to produce his iPhone 6 Plus,
his Mac Pro computer, and his two attached external hard
drives in a fully unencrypted state (the “Decryption Order”).
Doe did not appeal the Decryption Order. Instead, he filed
with the Magistrate Judge a motion to quash the
Government’s application to compel decryption, arguing that
his act of decrypting the devices would violate his Fifth
Amendment privilege against self-incrimination.

       On August 27, 2015, the Magistrate Judge denied
Doe’s Motion to Quash and directed Doe to fully comply
with the Decryption Order (the “Quashal Denial”). The
Magistrate Judge acknowledged Doe’s Fifth Amendment
objection but held that, because the Government possessed
Doe’s devices and knew that their contents included child
pornography, the act of decrypting the devices would not be
testimonial for purposes of the Fifth Amendment privilege
against self-incrimination. The Quashal Denial stated that a
failure to file timely objections could result in the waiver of
appellate rights. Doe did not file any objections to the
Quashal Denial and did not seek review by way of appeal,
writ of mandamus, or otherwise.




                              6
       Approximately one week after the Quashal Denial,
Doe and his counsel appeared at the Delaware County Police
Department for the forensic examination of his devices. Doe
produced the Apple iPhone 6 Plus, including the files on the
secret application, in a fully unencrypted state by entering
three separate passwords on the device. The phone contained
adult pornography, a video of Doe’s four-year-old niece in
which she was wearing only her underwear, and
approximately twenty photographs which focused on the
genitals of Doe’s six-year-old niece. Doe, however, stated
that he could not remember the passwords necessary to
decrypt the hard drives and entered several incorrect
passwords during the forensic examination. The Government
remains unable to view the decrypted content of the hard
drives without his assistance.

       Following the forensic examination, the Magistrate
Judge granted the Government’s Motion for Order to Show
Cause Why Doe Should Not Be Held in Contempt, finding
that Doe willfully disobeyed and resisted the Decryption
Order. Based on the evidence presented at the hearing, the
Magistrate Judge found that Doe remembered the passwords
needed to decrypt the hard drives but chose not to reveal them
because of the devices’ contents. The Magistrate Judge
ordered Doe to appear before the District Court to show cause
as to why he should not be held in civil contempt.

      On September 30, 2015, after a hearing, the District
Court granted the Government’s motion to hold Doe in civil
contempt. On October 5, 2015, the District Court issued a
“Supplemental Order to articulate the reasons for its
September 30th Order.” (App. at 12.) The District Court
noted that the Government’s prima facie case of contempt
was largely, if not entirely, uncontested.     While the


                              7
Government presented several witnesses to support its
motion, Doe neither testified nor called witnesses. He offered
no physical or documentary evidence into the record and
provided no explanation for his failure to comply with the
Decryption Order. The District Court remanded Doe to the
custody of the United States Marshals to be incarcerated until
he fully complies with the Decryption Order. This timely
appeal followed.

                              II.

       We have appellate jurisdiction under 28 U.S.C. §
1291. We ordinarily exercise plenary review over the District
Court’s authority to issue an order pursuant to the All Writs
Act, Grider v. Keystone Health Plan Cent., Inc., 500 F.3d
322, 327 (3d Cir. 2007), and “review a district court’s
decision on a motion for contempt for abuse of discretion.”
Marshak v. Treadwell, 595 F.3d 478, 485 (3d Cir. 2009).
However, when the party seeking review has failed to
preserve the issue in the trial court, we review only for plain
error. See Brightwell v. Lehman, 637 F.3d 187, 193 (3d Cir.
2011); Nara v. Frank, 488 F.3d 187, 194 (3d Cir. 2007). We
nonetheless exercise plenary review over challenges
concerning subject matter jurisdiction. United States v.
Merlino, 785 F.3d 79, 82 (3d Cir. 2015).

                             III.

       Doe raises two primary arguments as to why he should
not be held in contempt. First, he asserts that the District
Court lacked subject matter jurisdiction to issue the
Decryption Order under the All Writs Act. Thus, he argues
that he is not in contempt of any valid order and the judgment
of contempt must be vacated. Second, Doe contends that the


                              8
Decryption Order violates his Fifth Amendment privilege
against self-incrimination.

                               A.

        Doe’s first challenge concerns the All Writs Act,
which permits federal courts to “issue all writs necessary or
appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law.” 28 U.S.C. §
1651(a). The All Writs Act does not itself confer any subject
matter jurisdiction, but rather only allows a federal court to
issue writs “in aid of” its existing jurisdiction. Clinton v.
Goldsmith, 526 U.S. 529, 534 (1999); Sygenta Crop Prot.,
Inc. v. Henson, 537 U.S. 28, 31 (2002); see also In re
Arunachalum, 812 F.3d 290, 292 (3d Cir. 2016) (per curiam).
Therefore, a court has subject matter jurisdiction over an
application for an All Writs Act order only when it has
subject matter jurisdiction over the underlying order that the
All Writs Act order is intended to effectuate. Additionally, a
federal court may only issue an All Writs Act order “as may
be necessary or appropriate to effectuate and prevent the
frustration of orders it has previously issued in its exercise of
jurisdiction otherwise obtained.” United States v. N.Y. Tel.
Co., 434 U.S. 159, 172 (1977).

       Doe contends that the Magistrate Judge did not have
subject matter jurisdiction to issue the Decryption Order
because the Government should have compelled his
compliance by means of the grand jury procedure and not the
All Writs Act. The grand jury process, however, is not the
exclusive means by which the Government may collect
evidence prior to indictment. See Zurcher v. Stanford Daily,
436 U.S. 547, 559 (1978) (allowing the Government to
proceed by search warrant despite insistence that the


                               9
investigation should proceed by subpoena); United States v.
Educ. Dev. Network Corp., 884 F.2d 737, 743 (3d Cir. 1989)
(rejecting the argument that the Government could not obtain
evidence by means of a search warrant and must proceed
solely by grand jury). Here, the Magistrate Judge had subject
matter jurisdiction under Federal Rule of Criminal Procedure
41 to issue a search warrant4 and therefore had jurisdiction to
issue an order under the All Writs Act that sought “to
effectuate and prevent the frustration” of that warrant. United
States v. N.Y. Tel. Co., 434 U.S. 159, 172 (1977).

       In arguing that the Magistrate Judge did not have
subject matter jurisdiction to issue the Decryption Order, Doe
also challenges the merits of that order, contending that it was
not a “necessary and appropriate means” of effectuating the
original warrant as required by the Supreme Court in New
York Telephone. A contempt proceeding, however, generally
“‘does not open to reconsideration the legal or factual basis of
the order alleged to have been disobeyed.’”5 United States v.


       4
         Doe does not dispute the validity of the underlying
search warrant issued by a Magistrate Judge under Fed. R.
Crim. P. 41.
       5
          There are, of course, instances when a contempt
proceeding may be the only avenue for challenging the
underlying order to produce information. For example,
judicial review of a grand jury subpoena may be obtained
only by refusal to comply with the subpoena, with the validity
of the subpoena being litigated in the ensuing contempt
proceeding. See, e.g., United States v. Ryan, 402 U.S. 530,
532-33 (1971) (“[W]e have consistently held that the
necessity for expedition in the administration of the criminal


                              10
Rylander, 460 U.S. 752, 756 (1983) (quoting Maggio v. Zeitz,
333 U.S. 56, 69 (1948)); In re Contemporary Apparel, Inc.,
488 F.2d 794, 798 (3d Cir. 1973) (same). Furthermore, Doe
did not argue in the District Court that the Decryption Order
was not an appropriate exercise of authority under the All
Writs Act. Thus, even if the propriety of the Decryption
Order was before us, our review would be limited to plain
error. Brightwell, 637 F.3d at 193. Under this framework, an
appellant must show four elements: “(1) there is an ‘error’;
(2) the error is ‘clear or obvious, rather than subject to
reasonable dispute’; (3) the error ‘affected the appellant’s
substantial rights, which in the ordinary case means’ it
‘affected the outcome of the district court proceedings’; and
(4) ‘the error seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.’” United States v.
Marcus, 560 U.S. 258, 262 (2010) (quoting Puckett v. United
States, 556 U.S. 129, 135 (2009)).

       In New York Telephone, the district court had issued an
order authorizing federal agents to install pen registers in two
telephones and directed the New York Telephone Company




law justifies putting one who seeks to resist the production [to
a grand jury] of desired information to a choice between
compliance with a trial court’s order to produce prior to any
review of that order, and resistance to that order with the
concomitant possibility of an adjudication of contempt if his
claims are rejected on appeal.”); In re Grand Jury Subpoena,
709 F.3d 1027, 1029 (10th Cir. 2013)(“A protesting [grand
jury] witness may seek appellate review only after he refuses
to obey the subpoena and is held in contempt.”).


                              11
to furnish “all information, facilities and technical assistance”
necessary to accomplish the installation. N.Y. Tel. Co., 434
U.S. at 161. The Company argued that neither Fed. R. Crim.
P. 41 nor the All Writs Act “provided any basis for such an
order.” Id. at 163. The Supreme Court, however, found that
this order was “clearly authorized by the All Writs Act” as a
necessary and appropriate means of effectuating the
installation of the pen registers. Id. at 172.

       Here, the Magistrate Judge issued a search warrant for
the devices seized at Doe’s residence.           When law
enforcement could not decrypt the contents of those devices,
and Doe refused to comply, the Magistrate Judge issued the
Decryption Order pursuant to the All Writs Act. The
Decryption Order required Doe to “assist the Government in
the execution of the…search warrant” by producing his
devices in “a fully unencrypted state.” As was the case in
New York Telephone, the Decryption Order here was a
necessary and appropriate means of effectuating the original
search warrant.

       Doe asserts that New York Telephone should not apply
because the All Writs Act order in that case compelled a third
party to assist in the execution of that warrant, and not the
target of the government investigation. The Supreme Court
explained, however, that the Act extends to anyone “in a
position to frustrate the implementation of a court order or the
proper administration of justice” as long as there are
“appropriate circumstances” for doing so. Id. at 174. Here,
as in New York Telephone: (1) Doe is not “far removed from
the underlying controversy;” (2) “compliance with [the
Decryption Order] require[s] minimal effort;” and (3)
“without [Doe’s] assistance there is no conceivable way in
which the [search warrant] authorized by the District Court


                               12
could [be] successfully accomplished.” Id. at 174-175.
Accordingly, the Magistrate Judge did not plainly err in
issuing the Decryption Order.

                             B.

        Doe also contends that the Decryption Order violates
his Fifth Amendment privilege against self-incrimination and
that this challenge is subject to plenary review. Doe raised a
Fifth Amendment challenge in his Motion to Quash the
Decryption Order.        The Magistrate Judge denied that
challenge, rejecting the argument that Doe’s Fifth
Amendment privilege would be violated. Doe did not file
objections to that order, nor did he seek review by way of
appeal, writ of mandamus or otherwise, despite the Quashal
Denial order informing Doe that failure to file a timely
objection may constitute a waiver of appellate rights. Doe
also did not renew this self-incrimination claim during the
contempt proceedings before the Magistrate Judge and the
District Judge.6 Instead, Doe only reasserted his Fifth
Amendment claim in this appeal.

      While Doe persists that his challenge to the contempt
order entitles him to plenary consideration of the Fifth
Amendment issue, we disagree. As noted above, it is

      6
          In its Order explaining the contempt ruling, the
District Judge observed that Doe had failed to object to the
Magistrate Judge’s determination that Doe’s Fifth
Amendment rights were not violated by the Decryption Order
despite being warned that such failure “may constitute a
waiver of appellate rights.” (App. at 15 (citing United States
v. Polishan, 336 F.3d 234, 240 (3d Cir. 2003).) Thus, the
District Court did not address the Fifth Amendment issue.


                             13
generally the case that “a contempt proceeding does not open
to reconsideration the legal or factual basis of the order
alleged to have been disobeyed.” Rylander, 460 U.S. at 756
(internal quotation marks and citation omitted).

       Even if we could assess the Fifth Amendment decision
of the Magistrate Judge, our review would be limited to plain
error. See United States v. Schwartz, 446 F.2d 571, 576 (3d
Cir. 1971) (applying plain error review to unpreserved claim
of violation of privilege against self-incrimination). Doe’s
arguments fail under this deferential standard of review.

        The Fifth Amendment states that “[n]o person…shall
be compelled in any criminal case to be a witness against
himself.” U.S. CONST. amend. V. The Fifth Amendment,
however, “does not independently proscribe the compelled
production of every sort of incriminating evidence but applies
only when the accused is compelled to make a Testimonial
Communication that is incriminating.” Fisher v. United
States, 425 U.S. 391, 408 (1976). To be testimonial, a
communication must either “explicitly or implicitly . . . relate
a factual assertion or disclose information.” Doe v. United
States, 487 U.S. 201, 210 (1988).

       The Supreme Court has recognized that in some
instances, the production of evidence can implicate the Fifth
Amendment. In Fisher, the Court stated that “[t]he act of
producing evidence in response to a subpoena . . . has
communicative aspects of its own, wholly aside from the
contents of the papers produced.” 425 U.S. at 410. The
Court reasoned that compliance with a request for evidence
may “tacitly concede[ ] the existence of the documents
demanded and their possession and control by the
[defendant].”     Id.    By “producing documents, one


                              14
acknowledges that the documents exist, admits that the
documents are in one’s custody, and concedes that the
documents are those that the [Government] requests.” United
States v. Chabot, 793 F.3d 338, 342 (3d Cir.), cert. denied,
136 S. Ct. 559 (2015). When the production of evidence does
concede the existence, custody, and authenticity of that
evidence, the Fifth Amendment privilege against self-
incrimination applies because that production constitutes
compelled testimony.

       In Fisher, however, the Court also articulated the
“foregone conclusion” rule, which acts as an exception to the
otherwise applicable act-of-production doctrine. Fisher, 425
U.S. at 411. Under this rule, the Fifth Amendment does not
protect an act of production when any potentially testimonial
component of the act of production—such as the existence,
custody, and authenticity of evidence—is a “foregone
conclusion” that “adds little or nothing to the sum total of the
Government’s information.” Id. For the rule to apply, the
Government must be able to “describe with reasonable
particularity” the documents or evidence it seeks to compel.
Hubbell, 530 U.S. at 30.

       Although we have not confronted the Fifth
Amendment implications of compelled decryption, the
Eleventh Circuit has addressed the issue and found that the
privilege against self-incrimination should apply. In that
case, a suspect appealed a judgment of contempt entered after
he refused to produce the unencrypted contents of his laptop
and hard drives. In re Grand Jury Subpoena Duces Tecum
Dated Mar. 25, 2011, 670 F.3d 1335, 1337 (11th Cir. 2012).
The court found that “(1) [the suspect’s] decryption and
production of the contents of the drives would be testimonial,
not merely a physical act; and (2) the explicit and implicit


                              15
factual communications associated with the decryption and
production are not foregone conclusions.” Id. at 1346. The
court reached this decision after noting that the Government
did not show whether any files existed on the hard drives and
could not show with any reasonable particularity that the
suspect could access the encrypted portions of the drives. Id.
Although the court did not require the Government to identify
exactly the documents it sought, it did require that, at the very
least, the Government be able to demonstrate some
knowledge that files do exist on the encrypted devices. Id. at
1348–49.

       Despite Doe’s argument to the contrary, the Eleventh
Circuit’s reasoning in In re Grand Jury Subpoena does not
compel a similar result here. In the Quashal Denial, the
Magistrate Judge found that, though the Fifth Amendment
may be implicated by Doe’s decryption of the devices, any
testimonial aspects of that production were a foregone
conclusion. According to the Magistrate Judge, the affidavit
supporting the application for the search warrant established
that (1) the Government had custody of the devices; (2) prior
to the seizure, Doe possessed, accessed, and owned all
devices; and (3) there are images on the electronic devices
that constitute child pornography. Thus, the Magistrate Judge
concluded that the Decryption Order did not violate Doe’s
Fifth Amendment privilege against self-incrimination.

       Unlike In re Grand Jury Subpoena, the Government
has provided evidence to show both that files exist on the
encrypted portions of the devices and that Doe can access
them. The affidavit supporting the search warrant states that
an investigation led to the identification of Doe as a user of an
internet file sharing network that was used to access child
pornography. When executing a search of Doe’s residence,


                               16
forensic analysts found the encrypted devices, and Doe does
not dispute their existence or his ownership of them. Once
the analysts accessed Doe’s Mac Pro Computer, they found
one image depicting a pubescent girl in a sexually suggestive
position and logs that suggested the user had visited groups
with titles common in child exploitation. Doe’s sister then
reported that she had witnessed Doe unlock his Mac Pro
while connected to the hard drives to show her hundreds of
pictures and videos of child pornography. Forensic analysts
also found an additional 2,015 videos and photographs in an
encrypted application on Doe’s phone, which Doe had opened
for the police by entering a password. Based on these facts,
the Magistrate Judge found that, for the purposes of the Fifth
Amendment, any testimonial component of the production of
decrypted devices added little or nothing to the information
already obtained by the Government. The Magistrate Judge
determined that any testimonial component would be a
foregone conclusion. The Magistrate Judge did not commit a
clear or obvious error in his application of the foregone
conclusion doctrine. In this regard, the Magistrate Judge
rested his decision rejecting the Fifth Amendment challenge
on factual findings that are amply supported by the record.7

       7
         It is important to note that we are not concluding that
the Government’s knowledge of the content of the devices is
necessarily the correct focus of the “foregone conclusion”
inquiry in the context of a compelled decryption order.
Instead, a very sound argument can be made that the foregone
conclusion doctrine properly focuses on whether the
Government already knows the testimony that is implicit in
the act of production. In this case, the fact known to the
government that is implicit in the act of providing the
password for the devices is "I, John Doe, know the password


                              17
Accordingly, Doe’s challenges to the Decryption Order and
Quashal Denial fail.

        So, too, does Doe’s challenge to the contempt order.
At the hearing on the contempt motion, Doe maintained that
he could not remember the passwords to decrypt the hard
drives. In a civil contempt proceeding, when a defendant
raises a challenge of impossibility of compliance, “the
defendant bears the burden of production.” United States v.
Rylander, 460 U.S. 752, 757 (1983). At the contempt
hearing, the Government presented several witnesses to
support its prima facie case of contempt. Doe’s sister
testified to the fact that, while in her presence, Doe accessed
child pornography files on his Mac Pro computer by means of
entering passwords from memory. Further, a detective who
executed the original search warrant stated that Doe did not
provide his password at the time because he wanted to
prevent the police from accessing his computer. Doe never
asserted an inability to remember the passwords at that time.
Doe presented no evidence to explain his failure to comply or



for these devices." Based upon the testimony presented at the
contempt proceeding, that fact is a foregone conclusion.
However, because our review is limited to plain error, and no
plain error was committed by the District Court in finding
that the Government established that the contents of the
encrypted hard drives are known to it, we need not decide
here that the inquiry can be limited to the question of whether
Doe’s knowledge of the password itself is sufficient to
support application of the foregone conclusion doctrine.




                              18
to challenge the evidence brought by the Government. The
District Court thus found Doe in contempt and ordered he be
held in custody until he complies with the Decryption Order.
The District Court did not abuse its discretion in finding Doe
to be in contempt of the Decryption Order.

                             IV.

      For the foregoing reasons, we will affirm the District
Court’s order of September 30, 2015 holding Appellant John
Doe in civil contempt.




                             19
