United States v. Arterbury, Case No. 18-CR-0056-CVE

• Decision Date: 30 April 2018
• Docket Number: Case No. 18-CR-0056-CVE
• Citation: 322 F.Supp.3d 1195
• Parties: UNITED STATES of America, Plaintiff, v. Scott Frederick ARTERBURY, Defendant.
• Court: U.S. District Court — Northern District of Oklahoma

322 F.Supp.3d 1195

UNITED STATES of America, Plaintiff,

v.Scott Frederick ARTERBURY, Defendant.

Case No. 18-CR-0056-CVE

United States District Court, N.D. Oklahoma.

Signed April 30, 2018

As Amended May 1, 2018

Jeffrey Andrew Gallant, United States Attorney's Office, Tulsa, OK, for Plaintiff.

CORRECTED ¹ OPINION AND ORDER

CLAIRE V. EAGAN, UNITED STATES DISTRICT JUDGE

Now 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).

I. Background

According 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, ––– U.S. ––––, 138 S.Ct. 1546, 200 L.Ed.2d 748 (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.). Work man, 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. Id.

In 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, 104 S.Ct. 3405, 82 L.Ed.2d 677 (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).

Defendant, 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.

In 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. After the district court denied plaintiff's motion to reconsider the suppression order, on July 26, 2016, plaintiff filed a notice of interlocutory appeal with the Tenth Circuit, challenging the suppression order. Id. at Dkt. ## 55-56. 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. # 63.² On November 10, 2016, the district court dismissed the indictment, "without prejudice to re-filing same." Id. at Dkt. # 67.

Plaintiff's 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. ³ 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. # 2.⁴

Currently 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).

II. Defendant's Motion to Enforce the Arterbury I Suppression Order

Defendant 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, 37 S.Ct. 68, 61 L.Ed. 161 (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) ).⁵

In 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) ).⁶ 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 omitted) ).

Defendant 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 1.⁷ 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, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981) ; Bryant v. Merit Systems Protection Board, 878 F.3d 1320 (Fed. Cir. 2017) ).⁸

The 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...