U.S. v. Jarrett

• Decision Date: 29 July 2003
• Docket Number: No. 02-4953.,02-4953.
• Citation: 338 F.3d 339
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. William Adderson JARRETT, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

338 F.3d 339

UNITED STATES of America, Plaintiff-Appellant, v. William Adderson JARRETT, Defendant-Appellee.

No. 02-4953.

United States Court of Appeals, Fourth Circuit.

Argued: June 3, 2003.

Decided: July 29, 2003.

ARGUED: Michael James Elston, Assistant United States Attorney, Alexandria, Virginia, for Appellant.

Jeffrey Lee Everhart, RICE, EVERHART & BABER, Richmond, Virginia, for Appellee.

ON BRIEF: Paul J. McNulty, United States Attorney, Brian R. Hood, Assistant United States Attorney, Alexandria, Virginia, for Appellant.

Before WILKINSON and MOTZ, Circuit Judges, and Robert R. BEEZER, Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation.

Reversed and remanded by published opinion. Judge DIANA GRIBBON MOTZ wrote the opinion, in which Judge WILKINSON and Senior Judge BEEZER joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

In this case, the Government used information provided by an anonymous computer hacker to initiate a search which produced evidence that William Jarrett violated federal statutes prohibiting the manufacture and receipt of child pornography. The district court suppressed this evidence on the ground that the hacker acted as a Government agent, and so violated the Fourth Amendment, when he procured pornographic files from Jarrett's computer. The Government appeals. Because the Government did not know of, or in any way participate in, the hacker's search of Jarrett's computer at the time of that search, the hacker did not act as a Government agent. Accordingly, we reverse and remand for further proceedings.

I.

The parties do not dispute the underlying facts. Prior to his involvement in the case at hand, the hacker, referred to as Unknownuser, provided information through emails during July 2000 to the FBI and law enforcement agents in Alabama regarding a child pornographer, Dr. Bradley Steiger. In an early email, Unknownuser identified himself only as someone "from Istanbul, Turkey," who could not "afford an overseas phone call and cannot speak English fluently."

Employing the same method that he would later use to hack into Jarrett's computer, Unknownuser obtained access to Steiger's computer via a so-called Trojan Horse program that Unknownuser had attached to a picture he posted to a news group frequented by pornography enthusiasts. When Steiger downloaded the picture to his own computer, he inadvertently downloaded the Trojan Horse program, which then permitted Unknownuser to enter Steiger's computer undetected via the Internet. See United States v. Steiger, 318 F.3d 1039, 1044 (11th Cir.2003). After searching Steiger's hard drive and finding evidence of child pornography, Unknownuser copied certain files and then emailed the information to the law enforcement officials who used it to identify and apprehend Steiger. A jury convicted Steiger of violating various federal statutes prohibiting the sexual exploitation of minors. He was sentenced to 210 months in prison. Id. at 1045.¹

Shortly after Steiger was indicted, in late November 2000, FBI Special Agent James Duffy, who served as Legal Attache for the FBI in Turkey, contacted Unknownuser via email and phone. In addition to informing Unknownuser that he would not be prosecuted for his assistance in apprehending Steiger, Duffy requested a meeting and posed a series of questions to Unknownuser, with the hope that Unknownuser would reveal his identity and perhaps agree to testify at Steiger's trial. Although Unknownuser was quite forthcoming in his responses, he refused to meet with Agent Duffy, stating emphatically that he would never allow himself to be identified. Agent Duffy closed this exchange (in an email dated December 4, 2000) by thanking Unknownuser for his assistance and stating that "If you want to bring other information forward, I am available."

Five months later, Agent Duffy contacted Unknownuser via email, informing him of a postponement in the Steiger trial, thanking him again for his assistance, and assuring him that he would not be prosecuted for his actions should he decide to serve as a witness in the Steiger trial. Unknownuser responded, repeating that he had no intention of revealing his identity.

The next contact between Unknownuser and law enforcement did not occur until December 3, 2001, almost seven months later, when Unknownuser sent an unsolicited email to his contact at the Montgomery Alabama Police Department, Kevin Murphy, informing Murphy that he had "found another child molester ... from Richmond, VA" and requesting contact information for someone at the FBI dealing with these sorts of crimes. The alleged child molester referred to in the email was William Jarrett.

After contacting the FBI, Murphy informed Unknownuser that the FBI preferred that Unknownuser send the new information to Murphy's email address. On December 4, 2001, Unknownuser sent thirteen email messages to Murphy, including a ten-part series of emails with some forty-five attached files containing the "evidence" that Unknownuser had collected on Jarrett. Murphy forwarded the information to agents at the FBI, who initiated an investigation.

Based on the information provided by Unknownuser, the Government filed a criminal complaint and application for a search warrant against Jarrett on December 13, 2001. After receiving authorization from the district court, the FBI promptly executed the search warrant and arrested Jarrett.²

Several days after Jarrett's arrest, on December 16, 2001, Agent Duffy sent Unknownuser an email informing him of Steiger's sentence and thanking Unknownuser for his assistance in the case. At the time, Duffy was unaware of the Jarrett investigation. The next day, Unknownuser replied, informing Duffy of his efforts to identify Jarrett and inquiring why he had heard nothing since he sent the Jarrett files to Murphy on December 4. Unknownuser sent a similar message the following day (December 18) indicating that he had read about Jarrett's arrest in the newspaper and asking Agent Duffy to have Agent Margaret Faulkner — a special agent based in Alabama who had been involved in the Steiger investigation — contact him. On December 19, 2001, Agent Duffy sent an email to Unknownuser thanking him again for his assistance, providing information on the Jarrett investigation and prosecution, and requesting that Unknownuser maintain email contact with Agent Faulkner via her personal email address.

Three weeks later, on January 9, 2002, a grand jury indicted Jarrett on one count of manufacturing child pornography in violation of 18 U.S.C.A. § 2251(a) (West 2000) and seven counts of receiving child pornography in violation of 18 U.S.C.A. § 2252A(a)(2)(A) (West 2000). Jarrett moved to suppress the evidence obtained through the execution of the search warrant on the ground that the Government violated his Fourth Amendment rights in using the information provided by Unknownuser to secure the search warrant. The district court denied the motion. Jarrett then entered a conditional guilty plea to a one-count criminal information charging him with manufacturing child pornography.

Prior to sentencing, however, Jarrett moved to reconsider his earlier motion to suppress on the basis of new evidence — a series of emails exchanged between Unknownuser and FBI agent Faulkner, beginning shortly after Jarrett's arrest and extending for almost two months. The Government did not disclose these emails until after Jarrett had entered his guilty plea.

In the initial email in this series, dated December 19, 2001, Agent Faulkner explicitly thanked Unknownuser for providing the information to law enforcement officials. She then engaged in what can only be characterized as the proverbial "wink and a nod":

I can not ask you to search out cases such as the ones you have sent to us. That would make you an agent of the Federal Government and make how you obtain your information illegal and we could not use it against the men in the pictures you send. But if you should happen across such pictures as the ones you have sent to us and wish us to look into the matter, please feel free to send them to us. We may have lots of questions and have to email you with the questions. But as long as you are not `hacking' at our request, we can take the pictures and identify the men and take them to court. We also have no desire to charge you with hacking. You are not a U.S. citizen and are not bound by our laws.

Over the course of the next two months, Agent Faulkner sent at least four additional email messages, which constituted, in the words of the district court, a "`pen-pal' type correspondence" with Unknownuser. In addition to expressing gratitude and admiration for Unknownuser, Faulkner repeatedly sought to reassure Unknownuser that he was not a target of law enforcement for his hacking activities. For example, in an email dated January 29, 2002, she stated that

the FACT still stands that you are not a citizen of the United States and are not bound by our laws. Our Federal attorneys have expressed NO desire to charge you with any CRIMINAL offense. You have not hacked into any computer at the request of the FBI or other law enfor[ce]ment agency. You have not acted as an agent for the FBI or other law enforcement agency. Therefore, the information you have collected can be used in our criminal trials.

In his responses to Agent Faulkner, Unknownuser spoke freely of his "hacking adventures" and suggested in no uncertain terms that he would continue to search for child pornographers using the same methods employed to identify Steiger and Jarrett. As found by the district court, Agent Faulkner, despite her knowledge of Unknownuser's illegal hacking, "never instruct[ed] Unknownuser that he should cease hacking."

Upon consideration of this series of emails, the district court reversed its earlier decision and suppressed the evidence obtained during the search of Jarrett's residence. At the same...