Federal Corner: The Outrageous Government Conduct Defense

In the November 2016 edition of the VOICE, my Federal Corner column was entitled Child Pornography; The Playpen; The Onion Router (“Tor”); Network Investigative Technique (“NIT”) Warrants; Suppression; and, Confusion in the Courts.  I wrote about United States v. Croghan, ___F.Supp.3d___, 2016 WL 4992105 (S.D. Iowa Sept. 19, 2016) and United States v. Werdene, ___F.Supp.3d___, 2016 WL 3002376 (E.D. Pa. May 18, 2016).  In these cases, judges from Iowa and Pennsylvania came to different conclusions as to whether evidence seized under the authority of a search warrant issued by a magistrate judge from Virginia should be suppressed.

Croghan and Werdene came out of the FBI’s investigation of “Playpen,” a child pornography website.  In January, 2015, FBI agents seized Playpen’s servers and then obtained a warrant from a magistrate judge of the United States District Court for the Eastern District of Virginia.  This warrant authorized the agents to install a Network Investigative Technique (“NIT”) to identify the Internet Protocol (“IP”) addresses of the computers that had accessed Playpen. 

The NIT was able to collect identifying information from the activating computers of any user or administrator who logged into Playpen by entering a username and password.  The activating computer, wherever located, transmitted the information, including the IP address and host name to a government facility in Virginia.  The FBI deployed the NIT on Playpen’s servers from February 20, 2015, to March 4, 2015.  During these two weeks, some 100,000 users accessed the website.

Almost four years later, on March 3, 2020, the United States Court of Appeals for the Tenth Circuit held that the FBI’s operation of the Playpen website for two weeks, after arresting its operator, in order to determine the identities of website users, was not so outrageous as to violate due process. 

This was yet another of the Playpen cases in which FBI agents had seized evidence of child pornography under the authority of that same NIT warrant issued by the magistrate judge from Virginia.  United States v. Wagner, ___F.3d___, 2020 WL 1024700 (10th Cir. March 3, 2020) [Panel: Circuit Judges Holmes, Matheson and Bacharach.  Opinion by Matheson.] [Note:  There are other issues in Wagner but it is the outrageous government conduct issue that I want to focus on.]  Judge Matheson’s opinion reads, in part, as follows:

The Factual Background

The FBI seized Playpen’s servers in January 2015 and moved them to a government facility in Virginia. The FBI then hosted the website from this facility, hoping to identify its users.

The FBI obtained a warrant from a magistrate judge in the U.S. District Court for the Eastern District of Virginia (‘NIT Warrant’), which authorized agents to install an NIT on Playpen’s servers to collect identifying information from the ‘activating computers … of any user or administrator who log[ged] into [Playpen] by entering a username and password.’ Supp. App. at 89. The activating computer, ‘wherever located,’ transmitted the information, including its IP address and host name, to the government facility in Virginia.

The FBI deployed the NIT on Playpen’s servers from February 20, 2015 to March 4, 2015, during which 100,000 users accessed the website.

* * *

Playpen user ‘soldiermike’ logged into the website on February 28, 2015. The NIT identified soldiermike’s computer’s host name as ‘SFC-Gunner.’ … It also identified its IP address. Using subpoenaed records from the Tri-County Telephone Association, the FBI traced the IP address to Mr. Wagner and his residence in White City, Kansas.

On September 15, 2015, the FBI obtained a warrant to search Mr. Wagner’s residence from a magistrate judge in the U.S. District Court for the District of Kansas (‘Residence Warrant’). The warrant authorized agents to seize, among other items, computers used to ‘display or access information pertaining to a sexual interest in child pornography’ or to ‘distribute, possess, or receive child pornography.’  

 * * *

Agent Jones and FBI Special Agent Mike Daniels interviewed Mr. Wagner… He denied accessing child pornography on his computer but admitted to a past pornography addiction. He said that he and his wife were the only users of the family laptop, that no one had lived with them in the last year, and that no one else could access their wireless network.  Agents in the home found child pornography on the laptop in a folder labeled ‘TOR.’  

* * *

The Procedural Background

A federal grand jury indicted Mr. Wagner on two counts: (1) receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2); and (2) possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B).

* * *

Mr. Wagner moved to … dismiss the indictment, asserting the FBI’s 13-day operation of the Playpen website was outrageous in violation of due process.

Following a hearing, the court … concluded … that the Government did not engage in outrageous conduct. 

* * *

Following a three-day trial, a jury convicted Mr. Wagner of both counts.

* * *

The district court sentenced Mr. Wagner to eight years of imprisonment and five years of supervised release.  Mr. Wagner timely appealed.

* * *

On appeal, Mr. Wagner contends the district court erred when it … denied the outrageous government conduct motion…

* * *

The District Court’s Ruling and Wagner’s Contention on Appeal

The district court denied Mr. Wagner’s motion to dismiss the indictment, concluding the Government’s conduct was not outrageous in violation of due process. Mr. Wagner contends the FBI’s operation of Playpen, a child pornography website, established the ‘extraordinary’ outrageous conduct defense. United States v. Pedraza, 27 F.3d 1515, 1521 (10th Cir. 1994). We disagree.

 * * *

The Standard of Review

We review the denial of a motion to dismiss an indictment for outrageous government conduct de novo. Perrine, 518 F.3d at 1207.

* * *

The Additional Legal Background

‘When the government’s conduct during an investigation is sufficiently outrageous, the courts will not allow the government to prosecute offenses developed through that conduct because [doing so] would offend the Due Process Clause of the Fifth Amendment.’ Pedraza, 27 F.3d at 1521 (quotations omitted). To prove outrageous government conduct, the defendant must show ‘either (1) excessive government involvement in the creation of the crime, or (2) significant governmental coercion to induce the crime.’ United States v. Dyke, 718 F.3d 1282, 1288 (10th Cir. 2013) (quotations omitted). Under ‘the totality of the circumstances[,] … the government’s conduct [must be] so shocking, outrageous and intolerable that it offends the universal sense of justice.’ Perrine, 518 F.3d at 1207 (quotations omitted).

‘Excessive government involvement occurs if the government engineers and directs the criminal enterprise from start to finish.’ Pedraza, 27 F.3d at 1521 (quotations omitted). It is not excessive for the government ‘to infiltrate an ongoing criminal enterprise’ or ‘to induce a defendant to repeat or continue a crime or even to induce him to expand or extend previous criminal activity.’ Dyke, 718 F.3d at 1288 (quotations omitted). The government can, for instance, ‘suggest the illegal activity,’ ‘provide supplies and expertise for the illegal activity,’ and ‘act as both supplier and buyer in sales of illegal goods.’ (quotations omitted).

Governmental coercion must be ‘particularly egregious [to] rise[ ] to the level of outrageous conduct.’ Pedraza, 27 F.3d at 1521. ‘[I]f the defendant is already involved in criminal activity similar to the type of crime the government is attempting to induce him to commit, then the government’s conduct is a less important consideration.’ Dyke, 718 F.3d at 1289 (quotations omitted); see also United States v. Pawlak, 935 F.3d 337, 344 (5th Cir. 2019) (holding that ‘[a] defendant who actively participates in the crime may not avail himself of [this] defense’ (quotations omitted)).

Every circuit to consider the issue has held the FBI’s operation of Playpen was not outrageous government conduct. See United States v. Anzalone, 923 F.3d 1, 6 (1st Cir. 2019); Pawlak, 935 F.3d at 345-46; United States v. Harney, 934 F.3d 502, 506-07 (6th Cir. 2019); Kienast, 907 F.3d at 530-31; United States v. Tippens, 773 F. App’x 383, 385 (9th Cir. 2019) (unpublished).

* * *

The Court’s Analysis

Mr. Wagner has not shown the Government’s conduct was ‘so shocking … and intolerable that it offends the universal sense of justice.’ Perrine, 518 F.3d at 1207 (quotations omitted). The Government was not excessively involved in Playpen’s operation and did not coerce Mr. Wagner’s participation.

The FBI did not ‘engineer[ ] and direct[ ] [Playpen’s operation] from start to finish.’ Dyke, 718 F.3d at 1288 (quotations omitted). It did not create Playpen, alter the site’s functionality, add child pornography, or solicit new users. It seized Playpen’s servers and, pursuant to a warrant, hosted the website from a different location. Providing a suspect an opportunity ‘to expand or extend previous criminal activity’ is not ‘excessive’ government conduct. (quotations omitted).

Nor did the FBI coerce Mr. Wagner to access Playpen or download child pornography. He was an ‘active consumer’ of child pornography before the FBI hosted the website. Pawlak, 935 F.3d at 345. Indeed, the 4,311 images and 74 videos of child pornography found on the laptop in his home, App. at 578, strongly indicate he would have accessed Playpen without the FBI’s intervention. See Pedraza, 27 F.3d at 1522-23 (finding no outrageous conduct where the defendants did not show ‘they lacked the capacity to commit the crime without the government’s assistance’ (alterations and quotations omitted)).

Mr. Wagner has not shown the “egregious circumstances” necessary to warrant application of the “extraordinary” outrageous conduct defense. … The district court properly denied his motion to dismiss the indictment.

* * *

Conclusion

We uphold Mr. Wagner’s convictions and the district court’s denial of his motion … to dismiss the indictment. We affirm the district court’s judgment.

My Thoughts

  • The Playpen cases are now in their fourth year and continue to be interesting reading.
  • In researching for this month’s column, I came across two law review articles that are each a “must read” for anyone asserting an outrageous government conduct or entrapment defense:  Reconfiguring the Entrapment and Outrageous Government Conduct Doctrine, 84 Geo. L. J. 1945 (May 1996), John David Buretta; and, The Case for Preserving the Outrageous Government Conduct Defense, 91 Nw. U. L. Rev. 305 (Fall 1996), Stephen A. Miller.
  • United States v. Pawlak, 935 F.3d 337 (5th Cir. 2019) is the latest Fifth Circuit case discussing the outrageous government conduct defense in a child pornography case.  The Court held that the defendant, as an active user of a child pornography website operating on an anonymity network, could not assert the outrageous government conduct defense; and, the government’s conduct in briefly operating a website in an attempt to discover the identities of website users was not outrageous.
  • In United States v. Ferguson, 2018 WL 1782928 (S.D. Tex. April 13, 2018), United States District Judge Gray H. Miller denied a motion filed by the defendant to dismiss the indictment based on an allegation that the government engaged in outrageous government conduct.  The opinion is well written and sets out the difficulty of prevailing on an outrageous government conduct defense.
TCDLA
TCDLA
F. R. Buck Files, Jr.
F. R. Buck Files, Jr.
Buck Files is a member of TCDLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TCDLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Bain, Files, Jarrett and Harrison, P.C., and can be reached at or (903) 595-3573.
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