United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN, UNITED STATES DISTRICT JUDGE
before the Court are defendant Scott Frederick
Arterbury's motion to enforce prior order suppressing
evidence on grounds of collateral estoppel (Dkt. # 13), and
motion, in the alternative, to suppress evidence and request
for an evidentiary hearing (Dkt. # 14).
to plaintiff, defendant Scott Frederick Arterbury is among
the hundreds nationwide whom the Federal Bureau of
Investigations (FBI) discovered accessing the child
pornography website PlayPen. Dkt. # 18, at 1; see
generally United States v. Workman, 863 F.3d 1313,
1314-16 (10th Cir. 2017), cert. denied, 2018 WL
1786016 (U.S. Apr. 16, 2018). To identify these individuals,
the FBI obtained a warrant (the PlayPen warrant) from a
magistrate judge in the Eastern District of Virginia (E.D.
Va.). Workman, 863 F.3d at 1315-16. The PlayPen
warrant permitted the FBI to install software onto
PlayPen's server (which the FBI seized and loaded onto a
separate, government server located in the E.D. Va.), and
when a user accessed PlayPen, this software would install
malware onto the user's computer. Id. For the
user, the coup de grâce was that the malware would then
search his or her computer for identifying information, such
as an IP address, and transmit it back to the FBI.
Id. Identifying information in hand, the FBI would
then obtain a warrant in the district in which the user lived
to search his residence and computer for child pornography.
prosecuting these so-called PlayPen cases in federal courts
throughout the country, plaintiff, in some instances, has
encountered a roadblock in the form of a two-part legal
question that district courts have answered differently:
i.e. does a magistrate judge in the E.D. Va. have
the authority to issue a warrant seeking to search property
outside of her judicial district? And, even if no, does the
good faith exception to the Fourth Amendment's
exclusionary rule (see United States v. Leon, 468
U.S. 897 (1984)) nevertheless require district courts to
admit evidence obtained pursuant to the PlayPen warrant?
See generally Christine W. Chen, Comment, The
Graymail Problem in a World Going Dark: Balancing the
Interests of the Government and Defendants in Prosecutions
Using Network Investigative Techniques, 19 Colum. Sci.
& Tech L. Rev. 185, 187 (2017) (noting divide among
district courts as to these questions and collecting cases).
who plaintiff alleges accessed PlayPen from a computer in
Oklahoma, answers both questions in the negative. And, in a
prior prosecution against him, based on facts identical to
the instant matter, a different judge in this district
agreed. See United States of America v. Scott Frederick
Arterbury, 15-CR-182 (N.D. Okla. filed Dec. 7, 2015)
(Arterbury I), Dkt. # 47.
Arterbury I, on December 7, 2015, a grand jury
indicted defendant on one count of possession of child
pornography in violation of 18 U.S.C. §§
2252(a)(4)(B) and 2252(b)(2). Id. at Dkt. # 14.
Defendant filed a motion to suppress the photos and videos of
child pornography that the FBI obtained in searching his
residence and computer. Id. at 33. The magistrate
judge handling pretrial matters issued a report and
recommendation recommending that the district judge grant
defendant's motion, finding: (1) under Fed. R. Crim. P.
41 and the Federal Magistrate Judges Act, the E.D. Va.
magistrate judge lacked the authority to issue a warrant
seeking to search property outside of her judicial district;
and (2) the good faith exception did not apply to evidence
obtained pursuant to the PlayPen warrant, as the E.D. Va.
magistrate judge's lack of jurisdictional authority
rendered the warrant void ab initio. Id. at
Dkt. # 42. The district court accepted the magistrate
judge's report and recommendation and granted
defendant's motion to suppress. Id. at Dkt. #
47. While plaintiff's motion for reconsideration was
pending, on July 26, 2016, plaintiff filed a notice of
interlocutory appeal with the Tenth Circuit, challenging the
suppression order. Id. at Dkt. # 63. But shortly
thereafter, plaintiff moved to voluntarily dismiss its
interlocutory appeal and, in the district court, moved to
voluntarily dismiss the indictment. Id. at Dkt. #
63, Dkt. # 66. On October 20, 2016, the Tenth Circuit
dismissed plaintiff's interlocutory appeal. Id.
at Dkt. # 63. On November 10, 2016, the district court
dismissed the indictment, “without prejudice to
re-filing same.” Id. at Dkt. # 67.
effort to hold defendant accountable for his alleged
possession of child pornography, however, would not end
there. On July 21, 2017, the Tenth Circuit issued an opinion
in Workman, 863 F.3d 1313, which held that, even
assuming, arguendo, that the E.D. Va. magistrate
judge lacked the authority to issue the PlayPen warrant,
evidence obtained pursuant to it is admissible under the good
faith exception. Id. at 1320-21. The Court explained
that a reasonably well-trained agent (whom the law presumes
is a non-lawyer) could not have been expected to recognize
the Playpen warrant's jurisdictional infirmities, which
the E.D. Va. magistrate judge herself arguably overlooked.
Id. Because Workman overruled the
legal basis upon which defendant's motion to suppress in
Arterbury I was granted, plaintiff believes it is
entitled to prosecute defendant for the conduct charged in
Arterbury I. Dkt. # 17, at 102. Accordingly, on
March 7, 2018, a separate grand jury returned an indictment
identical to the one in Arterbury I, charging one
count of possession of child pornography in violation of 18
U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2). Dkt. # 17,
at 1-2; Dkt. # 2.
before the Court are defendant's motion to enforce the
Arterbury I suppression order on the ground of
collateral estoppel (Dkt. # 13), and, in the alternative,
motion to suppress evidence and request for an evidentiary
hearing (Dkt. # 14).
Defendant's Motion to Enforce the Arterbury I
argues, on two grounds, that the Arterbury I
suppression order binds the parties in this case. First,
citing no authority, defendant asserts that because the Tenth
Circuit's order dismissing plaintiff's interlocutory
appeal of the Arterbury I suppression order did not
specify whether the appeal was dismissed with or without
prejudice, this Court must presume that the dismissal was
with prejudice. Dkt. # 13, at 3. Accordingly, defendant
contends, plaintiff waived its right to appeal the
Arterbury I suppression order and that order thus
binds plaintiff in this case. Id. at 3-4. Second,
defendant argues that the doctrine of collateral estoppel
requires this Court to enforce the Arterbury I
suppression order. Id. at 5-13 (discussing
United States v. Oppenheimer, 242 U.S. 85 (1916);
Searing v. Hayes, 684 F.2d 694 (10th Cir. 1982);
United States ex rel. DiGiangiemo v. Regan, 528 F.2d
1262 (2d. Cir. 1975); United States v. Evans, 655
F.Supp. 243 (E.D. La. 1987)).
response, plaintiff notes defendant's failure to support
his argument that this Court must presume that the Tenth
Circuit's dismissal of plaintiff's interlocutory
appeal was with prejudice. Dkt. # 17, at 6. Plaintiff adds
that where, as here, a district court dismisses an indictment
without prejudice, plaintiff has the right to seek
reindictment for the same offense. Id. (citing
United States v. Stoker, 522 F.2d 576, 580 (10th
Cir. 1975); United States v. Abdush-Shakur, 314 Fed.
App'x 97, 99 (10th Cir. 2008)). As to defendant's second
argument, plaintiff argues that collateral estoppel is
inapplicable here because Workman, issued between
the Arterbury I dismissal and the grand jury return
of the instant indictment, is an intervening change in law.
Dkt. # 17, at 4-5 (citing Spradling v. City of
Tulsa, 198 F.3d 1219, 1223 (10th Cir. 2000) (“ . .
. collateral estoppel [is] inapplicable where, between the
first and second suits, an intervening change in the law . .
. create[s] new legal conditions.”) (citation
replies that the change-in-law exception to collateral
estoppel does not apply in this case because Workman
did not change the law. Dkt. # 19, at 1. Rather, defendant
argues, Workman merely applied existing law
(i.e. the good-faith exception) correctly, and there
is no exception to collateral estoppel where a previous issue
was merely decided erroneously. Id. at 4. An
erroneous determination, defendant asserts, can be corrected
only on direct review. Id. at 4-12 (discussing
Oppenheimer; Federated Dept. Stores Inc. v.
Moitie, 452 U.S. 394 (1981); Bryant v. Merit Systems
Protection Board, 878 F.3d 1320 (Fed. Cir.
Court considers first defendant's argument that the Court
must (1) presume that the Tenth Circuit dismissed
plaintiff's interlocutory appeal of the Arterbury
I suppression order with prejudice (because the
dismissal order was silent as to prejudice), and (2) conclude
that plaintiff thus waived its right to appeal the
suppression order and that the order thus binds plaintiff in
this case. Defendant's argument is grounded in neither
law nor logic. Defendant does not provide, and the Court has
not found, support for the proposition that voluntarily
dismissed appeals are presumed to be with prejudice. Rather,
the weight of authority suggests that, under Fed. R. App. P.
42, a voluntarily dismissed appeal may be reinstated if a
timely notice of appeal can still be filed. See 16AA
C. Wright & A. Miller, Federal Practice &
Procedure § 3998 (4th ed. Updated April 2018)
(collecting cases). Federal Rule of Appellate Procedure 4
provides that the government had thirty-days after the
Arterbury I court entered the suppression order, or
an order on reconsideration, to file a notice of appeal. That
time has obviously passed, and defendant is therefore
correct, in a sense, that plaintiff is foreclosed from
refiling its interlocutory appeal of the Arterbury I
suppression order. But plaintiff is not seeking to do so. And
defendant does not proffer, and the Court does not see, any
reason why the fact that plaintiff is time-barred from
refiling its interlocutory appeal of the Arterbury I
suppression order leads to the conclusion that plaintiff is
also barred from seeking a new indictment against defendant,
which the Arterbury I court dismissed, in no
uncertain terms, “without prejudice to refiling
same.” Arterbury I, 15-CR-182 at Dkt. # 47.
the Court addresses defendant's argument that the
doctrine of collateral estoppel makes the Arterbury
I suppression order binding here. The precise question
that this argument presents is, as far as the Court can tell,
one of first impression. It is the following: does collateral
estoppel bar a prosecuting authority from prosecuting a
defendant where a suppression order was granted in
defendant's favor in a prior litigation at a procedural
stage where jeopardy had not attached, and where, since the
prior litigation, a higher court has issued controlling