United States v. DeFoggi

• Decision Date: 06 October 2016
• Docket Number: No. 15-1209,15-1209
• Citation: 839 F.3d 701
• Parties: United States of America Plaintiff–Appellee v. Timothy DeFoggi Defendant–Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

839 F.3d 701

United States of America Plaintiff–Appellee

v.Timothy DeFoggi Defendant–Appellant

No. 15-1209

United States Court of Appeals, Eighth Circuit.

Submitted: November 19, 2015

Filed: October 6, 2016

Keith Anthony Becker, Trial Attorney, Sarah Chang, U.S. Department of Justice, Washington, DC, Michael P. Norris, Assistant U.S. Attorney, U.S. Attorney's Office, Omaha, NE, for Plaintiff–Appellee.

Timothy DeFoggi, Federal Correctional Institution, Fort Dix, NJ, pro se.

Stuart J. Dornan, Dornan & Lustgarten, Omaha, NE, for Defendant–Appellant.

Before RILEY, Chief Judge, BEAM and KELLY, Circuit Judges.

KELLY, Circuit Judge.

Timothy DeFoggi was convicted of multiple child pornography-related offenses following a jury trial. On appeal, he challenges several pretrial and trial rulings, argues there was insufficient evidence to support his convictions, and asserts his 300–month sentence was imposed in violation of the Eighth Amendment. We affirm in part and reverse in part.

I. Background

The FBI began an investigation in 2012 into a computer server in Bellevue, Nebraska, that was hosting child-pornography websites on the “Tor” network. The Tor network is designed to keep a user's identity anonymous by requiring special software that obscures a user's physical location. The network routed communications through a network of other computers, making traditional IP identification techniques ineffective. One of the hosted websites was called “PedoBook.” The website operated from March 2012 until December 2012, advertising and distributing child pornography and hosting discussions about the sexual abuse of children. On November 18, 2012, the FBI seized the computer server hosting PedoBook, but continued to operate the website for investigatory purposes until shutting it down completely on December 8, 2012. As part of this investigation, the FBI obtained an order from the United States District Court for the District of Nebraska allowing it to monitor electronic communications of PedoBook users. Both before and after its seizure by law enforcement, agents viewed, examined, and documented the contents of PedoBook, which contained thousands of photos and videos depicting images of child pornography.

PedoBook had over 8,100 members, each registered with a username and password. Once registered, a member could set up a profile with a picture, could request access to private groups, and could use a messages feature not available to other users. Members with profiles were able to set up groups based on specific interests and subcategories for posting distinct types of child pornography.

Timothy DeFoggi, the former acting director of cyber security at the United States Department of Health and Human Services, was a registered member and user of PedoBook. He used the username “fuckchrist” and the display name “Ptasseater.” He registered on March 2, 2012. DeFoggi and other PedoBook members occasionally shared personal information, including e-mail addresses, in private messages so they could communicate with other PedoBook members and distribute child pornography on a one-to-one basis. Evidence showed that DeFoggi joined 32 groups on PedoBook between March 2, 2012, and December 8, 2012. Between April 19, 2012, and December 5, 2012, he exchanged numerous private messages with other PedoBook members expressing, among other things, an interest in the rape and murder of infants and toddlers.

DeFoggi moved to suppress evidence obtained through the interception of electronic communications and evidence obtained during a search of his residence. He also moved to preclude the government from introducing at trial what he termed “fantasy chat private messages” sent to and from his username, arguing the messages were not relevant and were overly prejudicial. The district court denied these motions.

After a jury trial, DeFoggi was convicted on all counts: knowingly engaging in a child exploitation enterprise in violation of 18 U.S.C. § 2252A(g) (Count 1), conspiracy to advertise child pornography in violation of 18 U.S.C. § 2251(d)(1) and (e) (Count 2), conspiracy to distribute child pornography in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1) (Count 3), and knowingly accessing a means or facility of interstate commerce to view child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) (Counts 4–7). The district court granted DeFoggi's motion for judgment of acquittal in part by vacating the convictions on Counts 2 and 3 as lesser included offenses of Count 1, and denied his motion for a new trial.

On January 5, 2015, the court sentenced DeFoggi to 300 months' imprisonment on Count 1, and lesser amounts for all other counts of conviction (Counts 4–7), to run concurrently. DeFoggi timely appealed.

II. Discussion

A. Application for Interception of Electronic Communication

DeFoggi argues that the district court erred in denying his motion to suppress evidence obtained through the interception of electronic communications, because the application to intercept his communications was not properly authorized. At the suppression hearing, however, the magistrate judge found to the contrary, and DeFoggi did not object to this finding. Noting DeFoggi's lack of objection, the district court affirmed the magistrate judge's finding. Because DeFoggi filed no objection to the magistrate judge's report and recommendation on this issue, “we review the findings of fact underlying his appeal for plain error and the admissibility of [the evidence obtained through the interception of his electronic communications] de novo.” United States v. Lockett, 393 F.3d 834, 837 (8th Cir. 2005).

An application to intercept electronic communications must contain the identity of the authorized official who approved it. See 18 U.S.C. § 2518(1).¹ Intercepted electronic communications may be suppressed upon a showing that, as relevant here, “the order of authorization or approval under which it was intercepted is insufficient on its face,” or “the interception was not made in conformity with the order of authorization or approval.” 18 U.S.C. § 2518(10)(a)(i)–(ii).

The application submitted in this case stated that “[a] copy of the memorandum of an official specially designated by the Attorney General of the United States authorizing this application is attached to this application as Exhibit A.” DeFoggi argues that he did not receive the memorandum attachment in discovery, and that there was nothing to show that the approving judge received the required memorandum either. The government acknowledged to the district court that the memorandum may not have been included in the original discovery materials provided to DeFoggi at the start of the case. Whether or not DeFoggi received it, the relevant question for review is whether the approving judge had the document at the time she approved the application to intercept electronic communications.

At the hearing on DeFoggi's motion to suppress, the government presented an uncertified copy of a letter signed by Kenneth A. Blanco, Deputy Assistant Attorney General. During the suppression hearing, the magistrate judge requested certified copies of the application and the authorizing letter from Blanco. DeFoggi does not allege that Blanco was not authorized to sign the application. See 18 U.S.C. § 2516(1) (a Deputy Assistant Attorney General is an officer qualified to authorize the application). Rather, he asserts that the letter identifying Blanco as the authorizing officer was not attached to the application submitted to the approving judge.

The failure to attach authorization documents can warrant suppression, see United States v. Lomeli, 676 F.3d 734, 741–42 (8th Cir. 2012), but here, the magistrate judge specifically found that “the Chief Judge of the U.S. District Court for the District of Nebraska authorized the interception of ... DeFoggi's communications,” on November 18, 2012, and “[t]he application submitted in connection with that authorization included, as an exhibit, a copy of a memorandum signed by Kenneth A. Blanco ....” The magistrate judge therefore concluded that “the authorizing judge ... had the name of the actual, statutorily designated official who had indeed authorized the application,” and that DeFoggi's motion to suppress should be denied. The district court adopted this finding. DeFoggi offers no argument as to why this finding is plainly erroneous, asserting only that “there is no record to demonstrate the approving judge received [the signed letter from Blanco].” But, after examining the exhibits, the court ruled otherwise. Under these circumstances, we cannot say the district court erred in finding that the application as presented to the district court included the necessary authorization documents. Because the application was properly authorized, and the district court had this information at the time of approval, the district court did not err in denying DeFoggi's motion to suppress. See Lockett, 393 F.3d at 837.

B. Search Warrant

DeFoggi also argues the district court erred in denying his motion to suppress evidence obtained during the search of his home on April 9, 2013, because the affidavit in support of the warrant did not establish probable cause. In particular, he argues that there was insufficient information linking him to PedoBook, and thus no probable cause to believe that evidence of criminal activity would be found at his residence. “We review de novo the district court's legal determination of probable cause.” United v. Hager, 710 F.3d 830, 836 (8th Cir. 2013) (citing United States v. Coleman, 700 F.3d 329, 334 (8th Cir. 2012) ).

“Probable cause exists when there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id.(quotations and citations omitted). We utilize a totality of the circumstances test and a common sense approach when reviewing whether probable cause exists. Id.(quotations and citations omitted). We “may draw reasonable inferences from the...