United States v. Wagner

• Citation: 951 F.3d 1232
• Decision Date: 03 March 2020
• Docket Number: No. 19-3068,19-3068
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Wesley WAGNER, Defendant - Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

951 F.3d 1232

UNITED STATES of America, Plaintiff - Appellee,

v.Wesley WAGNER, Defendant - Appellant.

No. 19-3068

United States Court of Appeals, Tenth Circuit.

FILED March 3, 2020

Trevor D. Riddle, (Sarah Ellen Johnson with him on the briefs), Monnat & Spurrier, CHTD, Wichita, Kansas, for Defendant - Appellant.

Bryan C. Clark, Assistant United States Attorney (Stephen R. McAllister, United States Attorney, with him on the brief), Office of the United States Attorney, Kansas City, Kansas, for Plaintiff - Appellee.

Before HOLMES, MATHESON, and BACHARACH, Circuit Judges.

MATHESON, Circuit Judge.

In 2015, the Federal Bureau of Investigation ("FBI") deployed a Network Investigative Technique ("NIT")¹ to identify the Internet Protocol ("IP") addresses² of computers accessing "Playpen," a child pornography website. One of those IP addresses belonged to Defendant-Appellant Wesley Wagner. Agents executed a warrant for his Kansas residence, where they interviewed him and found evidence of child pornography on a laptop computer.

Mr. Wagner was indicted for receipt and possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(2) and (a)(4)(B). He moved to suppress the NIT’s identification of his IP address, the child pornography evidence in his home, and his statements to the agents. He also moved to dismiss the indictment, arguing it was obtained through outrageous government conduct in violation of due process. The district court denied his motions. Following a three-day trial, a jury convicted him of both counts.

On appeal, Mr. Wagner argues the district court erred in denying his motions to suppress and motion to dismiss the indictment. He also contends an erroneous evidentiary ruling requires a new trial and that the evidence was insufficient to sustain his convictions. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

Below we summarize the investigative and procedural background. We provide additional background in our discussion of Mr. Wagner’s issues on appeal.

A. Investigative Background

1. Investigation of Playpen

The FBI seized Playpen’s servers in January 2015 and moved them to a government facility in Virginia. The FBI then hosted the website from this facility, hoping to identify its users.

The FBI obtained a warrant from a magistrate judge in the U.S. District Court for the Eastern District of Virginia ("NIT Warrant"), which authorized agents to install an NIT on Playpen’s servers to collect identifying information from the "activating computers ... of any user or administrator who log[ged] into [Playpen] by entering a username and password." Supp. App. at 89. The activating computer, "wherever located," transmitted the information, including its IP address and host name, to the government facility in Virginia. Id . at 83, 90.

The FBI deployed the NIT on Playpen’s servers from February 20, 2015 to March 4, 2015, during which 100,000 users accessed the website.

2. Investigation of Mr. Wagner

Playpen user "soldiermike" logged into the website on February 28, 2015.³ The NIT identified soldiermike’s computer’s host name as "SFC-Gunner." App. at 440. It also identified its IP address. Using subpoenaed records from the Tri-County Telephone Association, the FBI traced the IP address to Mr. Wagner and his residence in White City, Kansas.

On September 15, 2015, the FBI obtained a warrant to search Mr. Wagner’s residence from a magistrate judge in the U.S. District Court for the District of Kansas ("Residence Warrant"). The warrant authorized agents to seize, among other items, computers used to "display or access information pertaining to a sexual interest in child pornography" or to "distribute, possess, or receive child pornography." Supp. App. at 280.

Six law enforcement agents executed the Residence Warrant. Upon arrival at the residence, Kansas Bureau of Investigation Special Agent Angie Jones informed Mr. Wagner and his wife that they were not under arrest and were free to leave. The Wagners agreed to speak with the agents.

Agent Jones and FBI Special Agent Mike Daniels interviewed Mr. Wagner while his wife waited on the porch. The recorded, 43-minute interview began on a bench outside the home and moved to a police vehicle when it started to rain. Mr. Wagner told the agents he served in the military and retired as a sergeant first class in 2010 due to disability. He denied accessing child pornography on his computer but admitted to a past pornography addiction. He said that he and his wife were the only users of the family laptop, that no one had lived with them in the last year, and that no one else could access their wireless network.

Agents in the home found child pornography on the laptop in a folder labeled "TOR."⁴ Agents Jones and Daniels then conducted a second recorded interview of Mr. Wagner about the folder’s contents. He denied knowledge of the folder and asked the agents to leave. The agents finished executing the warrant and left without arresting him.

B. Procedural Background

1. Indictment

A federal grand jury indicted Mr. Wagner on two counts: (1) receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2) ; and (2) possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B).

2. Pretrial Motions

Mr. Wagner moved to suppress (1) the NIT’s identification of his IP address, (2) evidence seized during the search of his home, and (3) his statements to Agents Jones and Daniels. He argued the NIT Warrant and Residence Warrant were invalid and that the agents’ interviews violated his Miranda and due process rights. He also moved (4) to dismiss the indictment, asserting the FBI’s 13-day operation of the Playpen website was outrageous in violation of due process.

Following a hearing, the court denied all four motions. It concluded (1) any evidence seized under the NIT Warrant was admissible under the good faith exception to the exclusionary rule, (2) the Residence Warrant was supported by probable cause and was sufficiently particular,⁵ (3) Mr. Wagner’s statements were voluntary and elicited in a non-custodial setting, and (4) the Government did not engage in outrageous conduct.

3. Jury Trial

Following a three-day trial, a jury convicted Mr. Wagner of both counts. Agent Jones and Amy Corrigan, an FBI forensic examiner, testified for the prosecution. During Agent Jones’s direct examination, the Government played the recording of Mr. Wagner’s first interview. On cross-examination, defense counsel asked Agent Jones about Mr. Wagner’s responses. See App. at 520 (Q: "Told you he retired in 2010?" A: "Yes." Q: "Told you that he had served 20 years?" A: "Yes."). The Government objected on hearsay grounds, which the court sustained.⁶ Forensic examiner Corrigan testified about the child pornography evidence found on the laptop in Mr. Wagner’s home.

4. Post-Trial Motions

Mr. Wagner moved for a new trial under Federal Rule of Criminal Procedure 33, asserting the court’s hearsay ruling during Agent Jones’s cross-examination prevented his counsel from highlighting certain statements for the jury. He also moved for judgment of acquittal under Federal Rule of Criminal Procedure 29(c), arguing the Government’s evidence was insufficient to prove he knowingly received and possessed child pornography.⁷

The district court denied both motions. It concluded the hearsay ruling was proper, and even if it was not, Mr. Wagner had failed to show it affected his substantial rights. The court also found "sufficient circumstantial evidence to support the jury’s guilty verdict." Supp. App. at 474.

5. Sentence

The district court sentenced Mr. Wagner to eight years of imprisonment and five years of supervised release. Mr. Wagner timely appealed.

II. DISCUSSION

On appeal, Mr. Wagner contends the district court erred when it (A) applied the good faith exception to the NIT Warrant evidence, (B) upheld the Residence Warrant, (C) admitted his interview statements, (D) denied the outrageous government conduct motion, (E) sustained the hearsay objection, and (F) denied the sufficiency-of-the-evidence motion. We affirm the district court on each issue.

A. NIT Warrant Evidence

The district court denied Mr. Wagner’s motion to suppress the NIT Warrant evidence because this circuit, like many others, has held the good faith exception to the exclusionary rule applies to evidence gathered under the warrant issued by the Eastern District of Virginia magistrate judge. See United States v. Workman , 863 F.3d 1313, 1318-21 (10th Cir. 2017), cert. denied , ––– U.S. ––––, 138 S. Ct. 1546, 200 L.Ed.2d 748 (2018) ; United States v. Cookson , 922 F.3d 1079, 1090 (10th Cir. 2019). Mr. Wagner fails to distinguish our precedent.

1. Standard of Review

"When reviewing the denial of a motion to suppress, we view the evidence in the light most favorable to the government [and] accept the district court’s findings of fact unless they are clearly erroneous." United States v. McNeal , 862 F.3d 1057, 1061 (10th Cir. 2017) (quotations omitted). We review de novo the "application of the [good faith] exception." Workman , 863 F.3d at 1317.

2. Legal Background

The Fourth Amendment safeguards "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. "When an individual seeks to preserve something as private, and his expectation of privacy is one that society is prepared to recognize as reasonable, ... official intrusion into that private sphere generally qualifies as a search and requires a warrant." Carpenter v. United States , ––– U.S. ––––, 138 S. Ct. 2206, 2213, 201 L.Ed.2d 507 (2018) (quotations omitted); see United States v. Christie , 717 F.3d 1156, 1162 (10th Cir. 2013) (recognizing a Fourth Amendment privacy interest in a personal computer). A warrant must (1) "be supported by probable cause" and (2) "describe with particularity ‘the place to be searched, and the persons or things to be seized.’ " United States v. Russian , 848 F.3d 1239,...