18-511
United States v. Caraher

                                          In the
                     United States Court of Appeals
                                          for the
                                 Second Circuit
                                    August Term, 2019

                                 Submitted: March 5, 2020
                                  Decided: August 25, 2020

                                     Docket No. 18-511



                                UNITED STATES OF AMERICA,

                                         Appellee,

                                             v.

                                    MICHAEL CARAHER,

                                    Defendant-Appellant.



Before:
                   HALL, LYNCH, MENASHI, Circuit Judges.


      Defendant-Appellant Michael Caraher appeals from a judgment of
conviction in the United States District Court for the Northern District of New
York (Suddaby, C.J.) following his conditional guilty plea to all eight counts of an
indictment related to his possession and distribution of child pornography.
Caraher appeals the district court’s denial of his pretrial motion to suppress
evidence obtained pursuant to a search warrant, its failure to dismiss the
indictment, and the reasonableness of the sentence imposed. We hold that the
district court properly denied Caraher’s motion to suppress evidence and his
motion to dismiss the indictment, and that the sentence imposed was not
unreasonable. For the reasons stated below, the judgment of the district court is
AFFIRMED.



                                     CARINA H. SCHOENBERGER, Assistant United
                                     States Attorney, for Grant C. Jaquith, United
                                     States Attorney for the Northern District of
                                     New York for Appellee.

                                     JAMES P. EGAN, Assistant Federal Public
                                     Defender, for Lisa A. Peebles, Federal Public
                                     Defender, Syracuse, NY, for Defendant-
                                     Appellant.



HALL, Circuit Judge:

      Like many before it, this case arises from an investigation by the Federal

Bureau of Investigation (FBI) into a website known as Playpen. See, e.g., United

States v. Eldred, 933 F.3d 110, 111 (2d Cir. 2019); United States v. Safford, ---

F. App’x ---, 2020 WL 2769092 (2d Cir. May 28, 2020).       Defendant-Appellant

Michael Caraher appeals from a judgment of conviction in the United States

District Court for the Northern District of New York (Glenn T. Suddaby, Chief

Judge) following his conditional guilty plea to charges related to his use of the



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website. Caraher pled guilty to all eight counts of an indictment related to his

possession and distribution of child pornography. The district court sentenced

Caraher, on each count, principally to a 90-month term of imprisonment, followed

by a 20-year term of supervised release, to run concurrently. Caraher appeals

from a judgment of conviction, challenging the district court’s denial of his pretrial

motion to suppress evidence obtained pursuant to a search warrant, its denial of

his motion to dismiss the indictment, and the sentence it imposed, which he asserts

is unreasonable. We hold that the district court properly denied the two motions

and that the sentence imposed was not unreasonable.           The judgment of the

district court, therefore, is AFFIRMED.

                                 BACKGROUND

      The facts of this case run largely parallel to those in Eldred. 933 F.3d at 112-

13.   Playpen operated on an “anonymizing network,” “The Onion Router” or

“Tor,” that allows users who have downloaded the Tor software to access websites

without revealing their internet protocol (IP) addresses.      Id. at 112.   The FBI,

using a search program called the Network Investigative Technique (NIT),

infiltrated the website and collected computer-related identifying information,

including IP addresses, from the computers of Playpen users. Id. at 111. This


                                          3
software was deployed pursuant to a warrant, the “NIT warrant,” issued by

Magistrate Judge Theresa Carroll Buchanan of the Eastern District of Virginia. Id.

at 113.      “An attachment to the warrant listed the ‘place to be searched’ as

‘activating computers,’ i.e. ‘those of any user or administrator who logs into the

Playpen website by entering a username and password.’”           Id. (citation and

alterations omitted). Caraher was one such user. While the NIT was deployed,

it did not “deny the users any functionality on their computers, or collect any

additional, unrelated information,” so users accessed the website without any

knowledge that law enforcement had assumed control of the site. Id.

      The FBI operated Playpen from a server in the Eastern District of Virginia

for a period of about two weeks. Id. The information obtained under the NIT

warrant allowed law enforcement to identify Playpen users’ true identities and

locations.    Id.   Information obtained pursuant to the NIT warrant established

that a Playpen visitor with the username “Phillip J. Fry” logged in from an

identified IP address in Morrisville, New York, a computer hostname “Mike-PC,”

and a computer logon name “Mike.” A188. Law enforcement determined that

the visitor with the username “Phillip J. Fry” had been actively logged into

Playpen for more than six hours over the course of several months and had


                                         4
accessed posts relating to bondage and sadistic conduct, including depictions of a

prepubescent girl. A186-88. The IP address was traced to Caraher’s address.

      On January 19, 2016, the government obtained a warrant to search Caraher’s

residence, vehicles, and computers for evidence related to the distribution, receipt,

and possession of child pornography. FBI agents executed the search warrant

and seized several computers, hard drives, cellular devices, electronic media, and

pages of printed materials.

      Upon being interviewed by law enforcement, Caraher admitted that he

downloaded and stored child pornography and confessed to using Playpen to

distribute child pornography to other users.       Forensic analysis subsequently

revealed child pornography and child erotica on six of Caraher’s electronic

devices.   The search revealed that Caraher possessed 974 still images and 118

videos depicting child pornography, including some of adults raping children

bound with rope.

      A grand jury returned an eight count indictment, charging Caraher with one

count of distribution and attempted distribution of child pornography, in violation

of 18 U.S.C. § 2252A(a)(2)(a) and 2252A(b)(1); three counts of receipt of child

pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) and 2252A(b)(1); and four


                                         5
counts of possession of child pornography, in violation of 18 U.S.C. §§

2252A(a)(5)(B), 2252A(b)(2), and 2256(8)(A).      Caraher filed multiple pretrial

motions including, as relevant here, a motion to suppress evidence derived from

the execution of the NIT warrant and for a hearing pursuant to Franks v. Delaware,

438 U.S. 154 (1978), as well as a motion to dismiss the indictment against him based

on outrageous government conduct.

      The district court denied both motions after a suppression hearing. As to

the suppression motion, the district court concluded that the NIT warrant was

supported by probable cause, sufficiently particularized, and satisfied the Fourth

Amendment.      Although the district court determined that the NIT warrant

violated Fed. R. Crim. P. 41(b) and 28 U.S.C. 636(a), it found that the evidence

should not be suppressed because, among other reasons, the good-faith exception

to the exclusionary rule applied. The district court also found that Caraher failed

to meet his burden of demonstrating that his motion required a Franks hearing.

As to the motion to dismiss the indictment, the district court found that the FBI’s

investigation did not amount to outrageous conduct.

      After the motions were denied, Caraher pled guilty to all counts in the

indictment pursuant to a conditional plea agreement that reserved his right to seek


                                         6
appellate review of certain issues, including denial of the motions and the

reasonableness of his sentence. The district court sentenced Caraher principally

to 90-months of imprisonment, followed by 20-years of supervised release, on each

count, all to run concurrently. This timely appeal followed. This appeal was

held in abeyance while the appeals in Eldred, Safford, and two other cases were

pending because they raised challenges to the use of this same warrant.             See

United States v. Allen, 782 F. App’x 21 (2d Cir. 2019); United States v. Scanlon, 774 F.

App’x 43 (2d Cir. 2019).

                                     JURISDICTION

         The district court had subject matter jurisdiction pursuant to 18 U.S.C.

§ 3231. This court has jurisdiction under 28 U.S.C. § 1291.

                                     DISCUSSION

   I.       Motion to Suppress

         Caraher argues principally that for a variety of reasons the district court

should have suppressed the fruits of the NIT warrant.               We review legal

conclusions on a motion to suppress evidence de novo and findings of fact for clear

error.    Eldred, 933 F.3d at 114.    We review a district court’s determination to

apply the good faith exception based on an officer’s reliance on an issued warrant


                                           7
de novo.     Id.   Caraher’s arguments are mostly foreclosed by our opinion in

Eldred, which concluded that suppression of the evidence derived from the NIT

warrant was not required. There we held that even assuming arguendo that the

warrant violated the Fourth Amendment, the good faith exception applied.

Eldred, 933 F.3d at 115.    Relying on the good faith exception, Eldred squarely

rejected the exact arguments Caraher makes here: namely, that the evidence

should have been suppressed because the search of his computer exceeded the

territorial scope of the warrant, the warrant was void ab initio, and the government

knowingly sought a warrant that violated Federal Rule of Criminal Procedure

41(b). Id. at 117-20.

      Caraher presses several additional arguments not foreclosed by Eldred. He

contends that the warrant was so deficient of probable cause that no officer could

reasonably rely on it. Notably, however, we have already determined that the

warrant at issue was supported by probable cause.          Allen, 782 F. App’x at 23.

Although we are not bound by Allen, “our denying summary orders precedential

effect does not mean that the court considers itself free to rule differently in similar

cases.”    United States v. Payne, 591 F.3d 46, 58 (2d Cir. 2010) (alteration and

internal quotation marks omitted).        Where, as here, we are considering an


                                           8
appellant’s argument that a warrant was so lacking in probable cause that any

reasonable law enforcement officer would have known that the warrant is invalid,

the conclusion of a panel of this Court that the warrant was in fact supported by

probable cause weighs heavily against that argument. In any event, we find no

reason to disagree with that panel’s conclusion.

      Next, Caraher argues that material misrepresentations in the warrant

application should have triggered an evidentiary hearing pursuant to Franks v.

Delaware, 438 U.S. 154 (1978). When assessing a district court decision on a Franks

hearing, we review legal questions de novo and questions of fact for clear error.

United States v. Rajaratnam, 719 F.3d 139, 153 (2d Cir. 2013). A Franks hearing is

warranted if the defendant can make a preliminary showing that (a) the warrant

affidavit contains a false statement, (b) the false statement was included

intentionally or recklessly, and (c) the false statement was integral to the probable

cause finding. Franks, 438 U.S. at 155-56. Even assuming that Caraher has met

the first two prerequisites, probable cause existed without the alleged

misrepresentations or omissions, so they were not integral to that determination.

      Caraher argues that a change in the logo to the Playpen website was material

because it changed from a young woman depicted in a provocative or suggestive


                                         9
manner to a more innocent-looking young woman, which, according to Caraher,

could not be said immediately to cause the defendant to know he was looking at a

child pornography website.       The new logo, however, “hardly suggests that

Playpen was not devoted to child pornography.” Allen, 782 F. App’x at 23. We

noted in Allen that even considering the change in logo, the major defining

characteristics of the Playpen site remained the same. Id. The arguments with

respect to the other two alleged misrepresentations or omissions are similarly

unsuccessful.   Even assuming that the government had improperly suggested

that the Playpen site was a “hidden” website and could not be accessed without

prior knowledge, multiple additional pieces of evidence supported the issuance of

the warrant. This evidence included “the site’s suggestive name, ‘Playpen’; [ ]

the texts near the logo, which the NIT affiant explained were terms of art on sites

such as these; . . . and [ ] the site’s registration notice, which emphasized anonymity

and the inability of anyone, even the site’s administrators, to see who accessed it.”

Id. We agree that those facts support a determination that there was probable

cause to search and seize computers of persons visiting the website. We do not

think that the website’s logo or the description of Playpen as a “hidden” website




                                          10
were factors so integral to a determination of probable cause as to warrant a Franks

hearing.

       Finally, Caraher claims that the NIT warrant was an anticipatory warrant

that contained a condition precedent which did not occur.         “An anticipatory

warrant is a warrant based upon an affidavit showing probable cause that at some

future time (but not presently) certain evidence of crime will be located at a

specified place.” United States v. Grubbs, 547 U.S. 90, 94 (2006) (internal quotation

marks and citation omitted). Warrants of this sort condition their execution on

some event “other than the mere passage of time – a so-called ‘triggering

condition.’”    Id.   A triggering condition need not be set forth in the warrant

itself. Id. at 99.

       According to Caraher, the event that would “trigger” probable cause to

search his computer was his visit and subsequent login to a website “as described

in the warrant application.” Appellant’s Br. at 54. The change in logo on the

website’s homepage, he argues, therefore, made the triggering event impossible.

This argument misconstrues the warrant. Attachment A to the warrant allowed

law enforcement to use the NIT when “any user or administrator . . . logs into the

TARGET WEBSITE by entering a username and password.”               The Attachment


                                         11
identifies the “TARGET WEBSITE” by its URL, not by its physical appearance.

The triggering condition, therefore, would occur when an individual entered a

username and password to log into the webpage located at the URL listed in

Attachment A, irrespective of the appearance of that webpage.            The logo

description, on the other hand, is located in the affidavit to the warrant.    The

affidavit explicitly places the subhead “Description of the TARGET WEBSITE and

Its Content” under a section titled “PROBABLE CAUSE.” There, the description

of the logo was support for the probable cause determination, not the triggering

event. See Safford, 2020 WL 2769092, at *2.

   II.     Outrageous Government Conduct

         Caraher argues that the government’s operation of the Playpen site was

outrageous government conduct that warrants dismissal of the indictment

because it facilitated the dissemination of child pornography, harming the victims.

We review de novo a district court’s ruling on a motion to dismiss an indictment

asserting outrageous government conduct. United States v. Williams, 372 F.3d 96,

112 (2d Cir. 2004). Caraher faces a “very heavy” burden to establish outrageous

government conduct. United States v. Schmidt, 105 F.3d 82, 91 (2d Cir. 1997). In

theory, government involvement in a crime may “become so excessive that it


                                        12
violates due process and requires dismissal of charges against the defendant even

if the defendant was not entrapped.” United States v. Al Kassar, 660 F.3d 108, 121

(2d Cir. 2011).    But “[a] necessary prerequisite for demonstrating that an

undercover investigation violated the rights of third parties [such as exploited

children] is proof that the governmental action actually caused the defendant to

commit a crime that would otherwise not have been committed.” United States v.

Chin, 934 F.2d 393, 400 (2d Cir. 1991). Caraher cannot meet such a heavy burden.

      Here, the government did not actually cause the defendant to commit a

crime that would otherwise have not been committed.             See id.   While the

government did not affirmatively prevent Caraher from logging onto the site and

disseminating child pornography, the government did not create Playpen or

encourage Caraher to visit the site. Cf. Al Kassar, 660 F.3d at 121 (“It does not

suffice to show that the government created the opportunity for the offense . . ..”);

see also Safford, 2020 WL 2769092, at *2. The fact that the government could have

stopped the crime from occurring does not mean that the government “actually

caused” the crime. Chin, 934 F.2d at 400; see Al Kassar, 660 F.3d at 121. In this

case, the crime may still have occurred via a different medium. The government

operated a website, with judicial approval, for 15 days. While operating it, law


                                         13
enforcement officials removed suspected images or videos of new child abuse.

They also removed part of the site that encouraged members to share new child

pornography.       In light of the benefits to exploited children from prosecuting

patrons of child-pornography websites, and given the “well-established

deference” we owe law enforcement, this conduct does not “shock the

conscience.” United States v. Rahman, 189 F.3d 88, 131 (2d Cir. 1999). 1

    III.   Substantive Reasonableness

       Finally, Caraher contends that the district court’s imposition of a 90-month

term of imprisonment and 20 years’ supervised release was substantively

unreasonable.      “Upon review for substantive unreasonableness, we take into

account the totality of the circumstances, giving due deference to the sentencing

judge’s exercise of discretion, and bearing in mind the institutional advantages of

district courts.” United States v. Brown, 843 F.3d 74, 80 (2d Cir. 2016) (citations

and quotation marks omitted). In giving this due deference, we “provide relief




1 In rejecting Caraher’s claim of outrageous government conduct, we join four of our
sister circuits who have similarly concluded that the government did not act
outrageously during the course of the investigation into Playpen. See United States v.
Anzalone, 923 F.3d 1, 6 (1st Cir. 2019); United States v. Harney, 934 F.3d 502, 507 (6th Cir.
2019); United States v. Kienast, 907 F.3d 522, 530-31 (7th Cir. 2018); United States v. Tippens,
773 F. App’x 383, 385 (9th Cir. 2019).

                                              14
only in the proverbial ‘rare case.’” United States v. Bonilla, 618 F.3d 102, 109 (2d

Cir. 2010) (quoting United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009)). “A

sentencing judge has very wide latitude to decide the proper degree of

punishment for an individual offender and a particular crime[,]” and “[w]e will . . .

set aside a district court’s substantive determination only in exceptional cases

where the trial court’s decision cannot be located within the range of permissible

decisions.” United States v. Cavera, 550 F.3d 180, 188, 189 (2d Cir. 2008) (en banc)

(internal quotation marks and citation omitted). We “may consider whether a

factor relied on by a sentencing court can bear the weight assigned to it” under the

totality of the circumstances in a case, but this review is similarly deferential. Id.

at 191.

      Although Caraher was sentenced to a term of imprisonment well below the

recommended guidelines range for the crimes to which he pled guilty, he contends

that any consideration of the guidelines for child pornography offenses is

inappropriate. We apply the child pornography guidelines “with great care” in

order to prevent the imposition of unreasonable sentences.           United States v.

Dorvee, 616 F.3d 174, 184 (2d Cir. 2010). We do not, however, require courts to

disregard the guidelines entirely.    When it fashioned his sentence, the district


                                         15
court considered Caraher’s lack of criminal history, family support, and

willingness to accept treatment. In fact, the district court found that Caraher was

a “unique case” and that although the court typically did not vary from the

recommended guideline ranges, it was appropriate to do so here.              A355.

Caraher’s sentence was not unreasonable.

                                 CONCLUSION

      We have considered Caraher’s remaining arguments and find them to be

without merit. The judgment of the district court is AFFIRMED.




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