FILED

NOT FOR PUBLICATION

JAN 21 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10038

Plaintiff-Appellee, D.C. No. 3:16-cr-00210-WHA-1

v.

MEMORANDUM*

GEORGE VORTMAN,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding

Submitted January 8, 2020** San Francisco, California

Before: W. FLETCHER and FRIEDLAND, Circuit Judges, and HILLMAN,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Timothy Hillman, United States District Judge for the District of Massachusetts, sitting by designation. Defendant-Appellant George Vortman appeals the district court’s orders

denying his motion to suppress evidence and motion to dismiss his indictment.

Vortman argues that the government obtained evidence against him pursuant to a

warrant that was issued in violation of Federal Rule of Criminal Procedure 41, and

that was overbroad and not supported by probable cause. He further claims that

the government’s outrageous conduct warrants dismissal of his indictment. We

review both of the district court’s denials de novo, see United States v. Ruckes, 586

F.3d 713, 716 (9th Cir. 2009); United States v. Black, 733 F.3d 294, 301 (9th Cir.

2013), and affirm both orders.

This court has already examined the precise warrant at issue in the context of

another case. See United States v. Henderson, 906 F.3d 1109 (9th Cir. 2018). We

thus review the warrant and the related technology only briefly here.

In 2014, the Federal Bureau of Investigation (“FBI”) began investigating

“Playpen,” an online forum for sending and receiving child pornography. In

January 2015, the FBI seized Playpen’s servers and later began to operate the

Playpen website from FBI facilities in Virginia. In February 2015, the FBI

obtained a warrant from a magistrate judge in the Eastern District of Virginia

authorizing use of a Network Investigative Technique (“NIT”), in order to identify

Playpen users (“the NIT warrant”).

2 The NIT warrant authorized search of all “activating computers,” or the

computers “of any user or administrator who logs into [Playpen] by entering a

username and password,” “wherever [that computer was] located.” When a person

logged into, or “activated,” Playpen with a username and password, the NIT

technology would cause the user’s computer to send seven pieces of identifying

information to the government server, such as the computer’s internet protocol

address. Id. at 1112. This technology was allegedly necessary because Playpen

was hosted on an anonymous network that allowed users to access websites

without otherwise revealing identifying information. See id.

Using the NIT, the FBI found that the user “childpornstar” had registered

with Playpen on January 3, 2015, a month before the FBI’s takeover of Playpen,

had accessed child pornography videos, and had actively logged onto Playpen for

approximately 18 hours between January 3, 2015 and March 4, 2015. The FBI

traced the user’s IP address to a residence in San Francisco, which it searched

pursuant to a separate warrant. The FBI seized a number of digital devices

belonging to Vortman with more than 1,000 photographs and 150 videos of child

pornography. Vortman was later charged with violating 18 U.S.C. § 2252(a)(2),

(b)(1), “Receipt of Child Pornography” and 18 U.S.C. § 2252(a)(4)(B), (b)(2),

“Possession of Child Pornography.”

3 Vortman challenges the NIT warrant on two grounds. First, he argues that

because the warrant was issued in violation of Federal Rule of Civil Procedure 41,

evidence seized pursuant to it should be suppressed. In Henderson, we held that

the NIT warrant violated Rule 41, but held that the good-faith exception

nevertheless excused the violation. See id. at 1119–20. Vortman offers no reason

to depart from that holding here, and we thus hold that the good-faith exception

excused the violation here.

Next, Vortman argues that the NIT warrant was overbroad and was not

supported by probable cause. We review the specificity of a warrant de novo,

United States v. Wong, 334 F.3d 831, 836 (9th Cir. 2003), and a finding of

probable cause for clear error, United States v. Meek, 366 F.3d 705, 712 (9th Cir.

2004).

The NIT warrant was not overbroad. See Henderson, 906 F.3d at 1119. It

described the place to be searched (activating computers) and the information to be

seized (seven pieces of identifying information) with particularity. See United

States v. Smith, 424 F.3d 992, 1004 (9th Cir. 2005).

Furthermore, the NIT warrant authorized only search of “activating”

computers—i.e., those that logged into Playpen during the time the government

operated the website with a username and password. In order to use an “activating

4 computer,” a user had to first download and install software to use the

anonymizing network on which Playpen operated. Next, a user could not access

Playpen through the open internet, but would instead have to find and input

Playpen’s exact algorithmic address (which we decline to provide here).

Henderson, 906 F.3d at 1111. In order to access Playpen’s contents, the user

would have to navigate past Playpen’s homepage, which depicted two minor

females with their legs spread apart, and register with a username and password.

Because there were multiple affirmative steps required to be an “activating

computer,” the warrant applied to those actively attempting to access child

pornography. It did not sweep too broadly.

Vortman next argues that the NIT warrant lacked probable cause because

Playpen users could be attempting to access the legal content on Playpen, such as

its fiction stories. The district court’s finding of probable cause was not clear

error. See United States v. Vortman, 2016 WL 7324987, at *7–*9 (N.D. Cal. Dec.

16, 2016). First, as the district court pointed out, we rejected a similar argument in

United States v. Gourde, 440 F.3d 1065, 1070 (9th Cir. 2006). Second, the

multiple affirmative steps a user had to take in order to access any Playpen content

establish a “fair probability” that registered users were accessing illegal content.

Meek, 366 F.3d at 712. That “fair probability” becomes considerable when

5 factoring in that the overwhelming majority of Playpen’s content was patently

illegal depictions of child pornography.

Finally, Vortman argues that the government acted so outrageously by

operating Playpen as to warrant dismissal of his indictment. To prevail on a

governmental misconduct claim, Vortman must meet the “extremely high

standard” of showing that the facts underlying his arrest and prosecution “violate[]

fundamental fairness” or are “so grossly shocking . . . as to violate the universal

sense of justice.” Black, 733 F.3d at 298; see also United States v. Russell, 411

U.S. 423, 431–32 (1973). Vortman fails to meet this high standard.

To determine whether government conduct was outrageous, a court

generally considers the six Black factors. See Black, 733 F.3d at 303. The district

court appropriately concluded that all six factors weighed against dismissal. See

Vortman, 2016 WL 7324987, at *5–*6. The first two factors, (1) known criminal

characteristics of the defendant and (2) individualized suspicion of the defendant,

weigh against dismissal because the government reasonably believed that

registered Playpen users were viewing and sharing child pornography. The next

two factors, (3) the government’s role in creating the crime of conviction and (4)

the government’s encouragement of the defendants to commit the offense, weigh

against dismissal because Vortman voluntarily accessed Playpen before

6 government seizure and then again without any government prompting. Next, (5)

the nature of the government’s participation in the offense, weighs against

dismissal because the government operated Playpen for only two weeks, acted as a

mere observer, and began the enterprise only after Vortman had already accessed

Playpen. Finally, (6) the nature of the crime being pursued and necessity for the

actions taken, weighs against dismissal because due to the anonymous network on

which Playpen operated, other investigative procedures were likely to fail.

Moreover, we have rejected the outrageous conduct argument in comparable

governmental stings involving arguably more outrageous conduct. See, e.g.,

United States v. Mayer, 503 F.3d 740, 754–55 (9th Cir. 2007); United States v.

Mitchell, 915 F.2d 521, 525–26 (9th Cir. 1990). The government’s conduct does

not warrant dismissal of Vortman’s indictment.

AFFIRMED.

7