                   United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-2178
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                 Anthony Allen Jean

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                      Appeal from United States District Court
                 for the Western District of Arkansas - Fayetteville
                                  ____________

                           Submitted: February 16, 2018
                               Filed: June 1, 2018
                                 ____________

Before LOKEN, BENTON, and ERICKSON, Circuit Judges.
                           ____________

BENTON, Circuit Judge.

       After a bench trial, Anthony A. Jean pled guilty to receiving child pornography
in violation of 18 U.S.C. § 2252A(a)(2), (b)(1), and possessing child pornography in
violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2). He appeals, arguing that the district
court1 erred in denying his motion to suppress evidence obtained by a warrant using
the Network Investigative Technique (NIT). He also claims the court abused its
discretion by denying his motion to disclose the NIT’s codes. Having jurisdiction
under 28 U.S.C. § 1291, this court affirms.

       In 2014, the FBI began investigating a child pornography website “Playpen.”
It offered users the opportunity to advertise, view, and distribute child pornography.
The website’s host, the Onion Router, gave anonymity to users, hiding identifying
information and requiring access to Playpen through a nondescript web address.
Playpen required users to create a username and password.

      On February 20, 2015, a United States Magistrate Judge for the Eastern District
of Virginia granted the FBI’s warrant to search computers, “wherever located,”
accessing Playpen. The warrant approved the use of NIT, a computer program that
reveals Playpen’s users. The NIT would “cause” the user’s computer to send its
Internet Protocol address, operating system information and username, and Media
Access Control address to the FBI.

       FBI agents discovered a user named “regalbegal.” This username belonged to
Jean, living in Arkansas. On July 9, 2015, executing an Arkansas search warrant, the
agents seized Jean’s computer and other devices with child pornography. He
admitted downloading and viewing child pornography. He confirmed his username
was “regalbegal.”

       Jean moved to suppress his statements and all evidence from the search. He
asserted that the search was unauthorized because the warrant was issued in the
Eastern District of Virginia, not Arkansas. The district court denied his motion. He


      1
      The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.

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then moved to compel disclosure of the complete NIT code, arguing it was material
to his defense. The court denied disclosure of the exploit and server codes. Jean pled
guilty, preserving his right to appeal the rulings on the motions to suppress and
compel.

       Jean challenges the NIT warrant under Federal Rule of Criminal Procedure
41(b)(4). His challenge is preempted by this court’s decision in United States v.
Horton, 863 F.3d 1041 (8th Cir. 2017). There, the NIT warrant was upheld under the
good faith exception to the exclusionary rule. Id. at 1052. This court noted that “the
costs of exclusion in this case are substantial. Suppression here would extend beyond
the present defendants and impact multiple cases within this circuit.” Id. The district
court did not err in denying Jean’s motion to suppress.

       This court reviews “rulings on pretrial motions for production for an abuse of
discretion,” reversing “only on a showing that the error was prejudicial to the
substantial rights of the defendant.” United States v. White Horse, 316 F.3d 769, 773
(8th Cir. 2003) (citation omitted). A defendant may “discover certain documents and
tangible objects upon a showing that they are ‘material to the preparation of his
defense.’” United States v. Krauth, 769 F.2d 473, 476 (8th Cir. 1985). “Material”
means “helpful to the defense.” E.g., United States v. Vue, 13 F.3d 1206, 1208 (8th
Cir. 1994). Inculpatory and exculpatory evidence can “assist in ‘the preparation of
the defendant’s defense.’” United States v. Marshall, 132 F.3d 63, 67 (D.C. Cir.
1998). But a showing of materiality “is ‘not satisfied by a mere conclusory allegation
that the requested information is material to the preparation of the defense.’” Krauth,
769 F.2d at 476 (citation omitted). Even if a defendant successfully shows
materiality, the district court may allow the government to withhold information to
“further and protect the public interest in effective law enforcement.” Barnes v.
Dormire, 251 F.3d 767, 769 (8th Cir. 2001), citing Roviaro v. United States, 353
U.S. 53, 59 (1957).


                                         -3-
       Jean argues that the district court abused its discretion by not compelling
disclosure of the complete source code for all software it used to identify him,
specifically the exploit and server codes. Jean believes these codes were material to
his defense. The district court disagreed, finding “Jean’s argument fails to
‘demonstrate that the requested evidence bears some abstract logical relationship to
the issues in the case.’” Summarizing the testimony of Jean’s own expert, the district
court found that the likelihood of any help to Jean’s defense was “vanishingly small.”
The district court did not abuse its discretion in denying the motion to compel.

       Alternatively, the court invoked the law-enforcement privilege to prevent
disclosure of the exploit code, finding “any need . . . is greatly outweighed by the
public’s interest in keeping the exploit secret.” Jean contends a protective order
could alleviate this concern. But the court deemed a protective order insufficient:
“The risk that the information might inadvertently be leaked or otherwise used by
third parties is too great.” The court further found, “Mere knowledge of the particular
vulnerability exploited here could potentially lead the expert to later build his own
exploit, or assist others in doing so, thereby effectively circumventing a protective
order.” The district court did not clearly err in making these findings.

                                    *******

      The judgment is affirmed.
                     ______________________________




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