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United States v. Cookson

United States Court of Appeals, Tenth Circuit

April 26, 2019

UNITED STATES OF AMERICA, Plaintiff-Appellant/Cross-Appellee,
DANIEL EUGENE COOKSON, Defendant-Appellee/Cross-Appellant.

          Appeal from the United States District Court for the District of Kansas (D.C. No. 6:17-CR-10087-JTM-1)

          Stephen R. McAllister, United States Attorney (Jason W. Hart, Assistant United States Attorney, with him on the briefs), District of Kansas, Wichita, Kansas, for Plaintiff-Appellant/Cross-Appellee.

          Daniel T. Hansmeier, Appellate Chief (Melody Brannon, Federal Public Defender, Timothy J. Henry, Assistant Federal Public Defender, with him on the briefs), Kansas City, Kansas, for Defendant-Appellee/Cross-Appellant.

          Before TYMKOVICH, Chief Judge, BACHARACH, and McHUGH, Circuit Judges.

          McHUGH, Circuit Judge.

          Daniel Eugene Cookson pleaded guilty to two counts of possessing child pornography after the FBI identified him in the course of its large-scale sting operation involving the website "Playpen." At his sentencing hearing, the district court determined Mr. Cookson's criminal history and total offense level correlated to a Guidelines range of 97-121 months. The district court announced its intention to sentence Mr. Cookson to a term of seventy-two months' imprisonment. But after entertaining argument from both parties and inviting Mr. Cookson's allocution, the district court imposed a sentence of five years' probation.

         The United States appealed, challenging Mr. Cookson's sentence as substantively unreasonable. Mr. Cookson cross-appealed, arguing the district court erred in refusing to suppress evidence obtained from his computer by the FBI pursuant to a warrant issued in the Eastern District of Virginia

         We affirm the district court's suppression ruling based on our decision involving the same warrant in United States v. Workman, 863 F.3d 1313 (10th Cir. 2017), but we vacate Mr. Cookson's sentence as unreasonable and remand to the district court for resentencing.

         I. BACKGROUND

         A. Search and Seizure

         In 2015, the FBI tracked down and arrested the operator of Playpen, a website that facilitated the distribution of child pornography. Instead of discontinuing Playpen's operations, however, the FBI decided to use the site to locate individuals using it to access child pornography. Workman, 863 F.3d at1315.

         Finding Playpen's users presented a challenge because Playpen was accessible only through "Tor" (short for "The Onion Router"), a network and software program designed to allow users to browse the internet anonymously. Id. at 1315. To access Playpen, users "had to employ [Tor] software that routed . . . connections through [a series of] third-party computers called 'nodes.'" Id. By routing connections in this manner, Tor enabled its users to access Playpen without disclosing their IP addresses (unique numbers assigned to a given user's computer, see United States v. Henderson, 595 F.3d 1198, 1200 n.1 (10th Cir. 2010)) or other identifying information.

         To bypass the steps Playpen took to keep its users anonymous, the FBI, after seizing control of the website, loaded Playpen's contents-pornography and all-onto a government server in the Eastern District of Virginia. Workman, 863 F.3d at 1315. The FBI then sought a warrant in the Eastern District of Virginia which would authorize it to deploy a network investigative technique ("NIT") on the government server hosting Playpen. In support of their application for a search warrant, the FBI obtained an affidavit from Agent Douglas Macfarlane explaining the operation of the proposed NIT as follows:

In the normal course of operation, websites send content to visitors. A user's computer downloads that content and uses it to display web pages on the user's computer. Under the NIT authorized by this warrant, the TARGET WEBSITE [Playpen], which will be located in Newington, Virginia, in the Eastern District of Virginia, would augment that content with additional computer instructions. When a user's computer successfully downloads those instructions from [Playpen] . . . the instructions, which comprise the NIT, are designed to cause the user's . . . computer to transmit certain information [including IP addresses] to a computer controlled by or known to the government. . . . The NIT will not deny the user . . . access to any data or the functionality of the user's computer.

App. at 342-43. Essentially, when someone logged in to Playpen by entering a username and password, the NIT would cause that person's computer to transmit identifying information (including the user's IP address) to the FBI. A magistrate judge in the Eastern District of Virginia signed the warrant, and the FBI operated Playpen with the NIT for approximately two weeks.[1]

         On February 22, 2015, someone with the username "shishkabobs" logged into Playpen. Shishkabobs's computer downloaded the NIT, causing it to transmit identifying information to the FBI. Using this identifying information, the government sought an administrative subpoena for the Southern Kansas Telephone Company to identify the physical address associated with the IP address obtained from shiskabobs's computer. Based on information received from the Southern Kansas Telephone Company, the FBI connected shiskabobs's IP address to a home Mr. Cookson shared with his parents and brother in Howard, Kansas. The FBI obtained and executed a search warrant for this home, where they found child pornography on various devices owned by Mr. Cookson. Mr. Cookson later confessed to using Playpen to view child pornography.

         The government charged Mr. Cookson with two counts of possessing child pornography under 18 U.S.C. § 2252A(a)(5)(B). Mr. Cookson moved to suppress all evidence derived from the operation of the NIT on his computer, arguing the magistrate judge in the Eastern District of Virginia lacked authority to issue the NIT warrant and the warrant therefore violated the Fourth Amendment. Specifically, Mr. Cookson argued that magistrate judges generally may not issue warrants for the search of persons or property outside of their district. See 28 U.S.C. § 636(a) (provision of the Federal Magistrates Act giving magistrate judges authority "within the district in which [they sit]"). Although he recognized that the version of Fed. R. Crim. P. 41(b) in force at the time created a limited set of exceptions to this general rule, including for warrants concerning the installation of a tracking device, Mr. Cookson contended the exceptions did not include the NIT. He further argued that, if the district court deemed the warrant invalid, the good-faith exception could not save the fruits of the FBI's unconstitutional search from application of the exclusionary rule because (1) the FBI misled the magistrate judge in its warrant application, (2) the magistrate abandoned her judicial role, and (3) the FBI knew the warrant was facially deficient. See Workman, 863 F.3d at 1317-18 (setting forth circumstances in which the good-faith exception does not apply).

         The district court denied the suppression motion. The court observed that the same NIT warrant in Mr. Cookson's case had been considered by many other trial courts across the country. Most of these courts found the magistrate judge who issued the NIT warrant lacked the authority to do so, yet they declined to suppress evidence obtained as a result of the NIT under the good-faith exception. See, e.g., United States v. Ammons, 207 F.Supp.3d 732 (W.D. Ky. 2016); United States v. Henderson, No. 15-CR-00565-WHO- 1, 2016 WL 4549108 (N.D. Cal. Sept. 1, 2016); United States v. Michaud, No. 3:15-CR- 05351-RJB, 2016 WL 337263 (W.D. Wash. Jan. 28, 2016). And while two courts decided the good-faith exception did not apply and suppressed the evidence, these decisions were later reversed by the courts' respective circuits. See United States v. Levin, 874 F.3d 316, 325 (1st Cir. 2017); United States v. Horton, 863 F.3d 1041, 1052 (8th Cir. 2017). The Tenth Circuit addressed the NIT warrant in United States v. Workman, holding that, even assuming the warrant was invalid, the good-faith exception saved the evidence from suppression. 863 F.3d at 1319-21.

         Here, the district court agreed that the Eastern District of Virginia magistrate judge exceeded her authority in issuing the NIT warrant but determined Workman governed the outcome of Mr. Cookson's case. Accordingly, the court applied the good-faith exception and denied Mr. Cookson's suppression motion.

         B. Sentencing

         After the district court denied his motion to suppress, Mr. Cookson entered into a plea agreement as to both counts of the indictment. As relevant here, the plea agreement set forth Mr. Cookson's understanding that his plea entailed a maximum sentence of twenty years' imprisonment, various fines and assessments, and a minimum of five years' supervised release. Mr. Cookson and the government also agreed to a conditional plea allowing Mr. Cookson to appeal the district court's suppression decision. The government agreed that Mr. Cookson could remain on bond (under conditions of supervision) pending resolution of his appeal.

         Prior to sentencing, Mr. Cookson's probation officer prepared a Presentence Investigation Report ("PSR"). The PSR calculated Mr. Cookson's base offense level as 18. This base offense level increased to 28 due to a number of adjustments pursuant to U.S.S.G. § 2G2.2, including a two-level increase under U.S.S.G. § 2G2.2(b)(2) because the material involved a prepubescent minor; a four-level increase under U.S.S.G. § 2G2.2(b)(4) because the material involved sadistic or masochistic conduct or other depictions of violence; a two-level increase under U.S.S.G. § 2G2.2(b)(6) because the offense involved the use of a computer, and a five-level increase under U.S.S.G. § 2G2.2(b)(7)(D) because Mr. Cookson possessed more than 600 images of child pornography. The PSR also listed Mr. Cookson's adult criminal convictions, which resulted in a criminal history score of six and placed him in a criminal history category of III.

         Based on an offense level of 28 and a criminal history category of III, the PSR calculated a Guidelines range for Mr. Cookson of 97-121 months' imprisonment. Mr. Cookson's convictions entail a maximum term of imprisonment of ...

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