Submitted: February 16, 2018
from United States District Court for the Western District of
Arkansas - Fayetteville
LOKEN, BENTON, and ERICKSON, Circuit Judges.
BENTON, CIRCUIT JUDGE.
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 court 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.
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.
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.
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."
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 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
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
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).
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.
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 ...