United States v. Barnett
| Decision Date | 10 February 2023 |
| Docket Number | 17-CR-00676 |
| Parties | UNITED STATES OF AMERICA v. RICHARD BARNETT |
| Court | U.S. District Court — Northern District of Illinois |
UNITED STATES OF AMERICA
v.
RICHARD BARNETT
No. 17-CR-00676
United States District Court, N.D. Illinois, Eastern Division
February 10, 2023
MEMORANDUM OPINION AND ORDER
John Robert Blakey United States District Judge
On February 7, 2018, a grand jury indicted Defendant on one count of child sexual exploitation in violation of 18 U.S.C. § 2251(a). [36]. A superseding indictment on May 25, 2022 added additional child sexual exploitation counts, as well as one count of transmitting threats to kidnap or injure a person in violation of 18 U.S.C. § 875(c); one count of transmitting threats to injure a person's reputation in violation of 18 U.S.C. § 875(d); and two counts of possessing child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). [137].
On May 6, 2021, Defendant moved to quash certain search warrants and suppress evidence seized pursuant to their execution, including subsequent statements he made to FBI agents. [110]. First, Defendant argues that a Louisiana state court issued an invalid warrant for his “Musical.ly” social media account because the warrant application did not establish probable cause for its issuance. This, he argues, also invalidates subsequent federal search warrants as fruits of the poisonous tree pursuant to Wong Sun v. United States, 371 U.S. 471 (1963).
Second, relying on Carpenter v. United States, 138 S.Ct. 2206 (2018), Defendant argues that the FBI also unlawfully obtained the dynamic IP address
records for his mobile phone without a warrant. [133]. He insists that the FBI “predicated its entire investigation” upon this dynamic IP address information, which provides another reason to quash the federal search warrants and suppress any evidence derived from them. [110] at 1, 6; [141].
On July 6, 2022, and August 8, 2022, the Court held an evidentiary hearing on Defendant's motion [110]. At the hearing, the Government presented testimony from FBI Special Agent Shannon McDaniel, the current FBI case agent. Defendant chose not to call any witnesses, but both parties introduced, by agreement, documentary evidence and, on August 22, 2022, they submitted a joint factual stipulation, [145].[1]
On December 8, 2022, [146], the Court orally denied Defendant's motion [110].
Based upon the record, the Court now issues its specific factual findings and its resulting conclusions of law.
I. Factual Findings
A. Florida Investigation
On May 8, 2017, a Florida elementary school complained to Jacksonville Florida Sheriff's Office that, on May 6 and 7, 2017, several female minors had
received obscene chat messages on the internet video-sharing and messaging application, Musical.ly. See Ex. MTS4 at 1-2. Investigators interviewed the minors and their parents who reported that an account-which reportedly used screen names “david banks” and “davidbank1014,” and claimed to be a 13-year-old boy-sent the minors sexually explicit messages, tried to persuade them to put their hands down their pants, and asked that they record and send videos of their faces while they masturbated. Id. at 1-2, 5-7. The account's user also threatened to find and kidnap some of the minors and to “kidnap, rape and kill” them if they told anyone about him. Id. at 6-7. One of the minors gave the Sheriff's Office screenshots of some of the chats. Id. at 7. One parent also reported that she created a fake Musical.ly account posing as a 13-year-old, and the alleged offending account began to follow her account. Id.
In response, Jacksonville Sheriff's Office subpoenaed Musical.ly for subscriber information associated with “davidbank1014” and “david banks.” Id. at 7-8; MTS7. In response, Musical.ly asked for “a ‘screen shot' of the suspect's profile to complete” the request, which the Sheriff's Office obtained from one of the victims and then sent to Musical.ly. MTS4 at 9. In response, Musical.ly returned the mobile telephone number for the account, and the mobile device type associated with the username “davidbanks1014.” MTS7. Musical.ly's response also indicated that the account was created on April 22, 2017 using the Internet Protocol (“IP”) address 70.175.173.104. Id. As agreed by the parties, an “IP address” is a unique series of numbers that a
device uses to connect to the internet, and when a device accesses a website, the device's IP address tells the website where to route the website data. [145] ¶ 1.
Next, the Sheriff's Office followed up on the subpoena returns. First, the Sheriff's Office used databases to look up the mobile telephone number from the Musical.ly subpoena results; and investigation of this directory connected the number to the name Richard D. Barnett with an Aurora, Illinois address. MTS4 at 8. The Sheriff's Office, through the State's Attorney's Office, also subpoenaed Verizon for the subscriber information associated with the mobile device, and Verizon sent back the name Richard D. Barnett, but with an address in Rochester, New York. Id. The Sheriff's Office also compiled a photo array that included the suspect's photo (Defendant), since one of the minors had reported that the account sent her a video showing the suspect. Id. at 8-9. That minor reviewed the photo array but said “they all kind of look like him.” Id. at 9.
Because Verizon identified an address in Rochester, New York, the Sheriff's Office referred the matter to the FBI Field Office in Buffalo, New York. MTS5 at 1. There, FBI Agents subpoenaed Cox Communications for information associated with the IP address 70.175.173.104 on April 22, 2017, the day the davidbanks1014 account was created. Id. at 2. Cox Communications reported that an apartment building in Oklahoma City, Oklahoma had used the IP address on that date. Id.
Next, the FBI Agents subpoenaed Verizon for the IP address logs for the mobile device number associated with the Musical.ly account for three relevant dates: May 6-7, 2017 (the dates the victims alleged the account messaged them) and July 24,
2017 (a date close to the subpoena request).[2] Id. at 2; Barnett Ex. 6. Verizon returned the requested IP addresses linked to the mobile device; an FBI Agent, using a publicly accessible IP geolocation website, linked the IP addresses to the general Chicago Illinois area. MTS5 at 2.
The FBI agent also found a public Facebook account for a “rickn.barnett” that showed the user was from Rochester, New York; had started working for the Federal Aviation Administration (“FAA”) in February 2017; and currently lived in Aurora, Illinois. Id. at 3. An Accurint.com public record search for “Richard Barnett” also listed a possible address in Aurora, Illinois. Id.
Based upon this open-source information, the FBI Buffalo Field Office referred the case to the FBI Chicago Field Office on August 30, 2017. Id.
B. Louisiana Investigation
Independently, on June 4, 2017, the father of a nine-year-old girl (“Victim A”) in Louisiana complained to the Ouachita Parish, Louisiana Sheriff's Office that someone with the screen name “@davidbanks1014” or “David Banks” had sent her sexually inappropriate and harassing messages through Musical.ly. See MTS1. Victim A told sheriff's deputies that the individual told her to record herself touching her leg; when she sent a video of herself touching her thigh, the individual responded, “no touch your candy,” and then instructed her to put her hand down her pants and
rub. Id. at 2. Victim A also told deputies that, after that exchange, the account logged onto Musical.ly anytime she logged on and started following some of her friends' Musical.ly accounts. Id. Victim A's father told deputies that he and his wife created a fake account on Musical.ly to find out additional information about the offending account, but “the family was unsuccessful.” Id.
Based upon this citizen complaint, on July 19, 2017, Ouachita Parish Senior Investigator James W. Humphrey presented a search warrant application to Judge Wilson Rambo of the Fourth Judicial District Court, in Ouachita Parish, Monroe, Louisiana to secure Musical.ly's records for the “@davidbanks1014” account, including subscriber information, chat logs, and IP session logs (hereinafter, “Louisiana Search Warrant”). MTS2. In support of probable cause for the warrant, Senior Investigator Humphrey submitted a statement, which he swore to under oath before Judge Rambo, that summarized the information that Victim A and her father reported, including the parents' unsuccessfully effort to “secure information about the suspect” by creating a fake Musical.ly account. Id. at 4. Judge Rambo reviewed and then signed the warrant that same day. Id. at 2, 5.
On July 20, 2017, Musical.ly returned records for the @davidbanks1014 account. Id. at 6. The records showed that the user created the account on April 22, 2017, and included the mobile number, type of cellular device, and the IP address used to create the account. Barnett Ex. 1 ¶ 24. The records also included the account's stored chat logs and partial IP address session logs. Id. ¶¶ 24-25. While the chat logs did not include the messages with Victim A, they contained other chats
with additional female minors about engaging in sexually explicit activity. Id. ¶¶ 26- 39. In some instances, the minors and @davidbanks1014 exchanged images of their genitalia. Id. Also, the target account had sent one minor, Victim C, violent and threatening texts, including threats to find, rape, and kill her; an image of a handgun; and threats to circulate revealing images of her if she did not send a video of herself masturbating. Id.
After receiving the Louisiana Search Warrant results, the Ouachita Sheriff's Office conducted additional investigative steps, including sending an administrative request to Comcast Cable Communications for the subscriber information for one of the IP addresses. Id. ¶ 39. Comcast's records linked the IP address to Defendant and to Defendant's Aurora home. Id. The...
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