from the United States District Court for the Northern
District of Texas
SMITH, WIENER, and ELROD, Circuit Judges.
E. SMITH, CIRCUIT JUDGE
Pawlak was convicted of receipt of child pornography and
access with intent to view child pornography involving a
prepubescent minor. Pawlak asserts that the district court
erred in denying his motions to dismiss the indictment and to
suppress evidence, that the evidence was insufficient to
sustain his convictions on either count, and that the court
clearly erred in applying a two-level sentencing enhancement
for obstruction of justice. Finding no error, we affirm.
December 2014, federal law enforcement officials learned that
a U.S.-based Internet protocol ("IP") address was
hosting a website called "PlayPen," which contained
a significant amount of child pornography. United States
v. Ganzer, 922 F.3d 579, 581 (5th Cir. 2019),
petition for cert. filed (July 23, 2019) (No.
19-5339). The website operated on an anonymity network and
was accessible using publicly available software known as The
Onion Router ("TOR"). Id.
the traditional Internet, TOR software anonymizes a
user's actual IP address (which can be tied to a physical
location) by routing the user's connection through a
series of randomly selected computers on the network.
Id. That feature generally makes it impossible for
law enforcement officials to identify the administrators and
users of websites containing child pornography, such as
PlayPen, without employing other investigative techniques.
January 2015, the FBI executed a search warrant and obtained
a copy of the server hosting the PlayPen website, which it
transferred to a government-controlled facility in Virginia.
Id. After obtaining a second warrant from a
magistrate judge in the Eastern District of Virginia,
id., the FBI began a thirteen-day sting operation
aimed at unmasking the identities of PlayPen
operation centered on the use of specialized malware called
the Network Investigative Technique ("NIT").
Id. "The NIT was a form of malware that
augmented the content sent by Playpen to the computers of
Playpen users with directions instructing those computers to
send identifying information to a computer controlled by the
government," id., including "the
computer's IP address and when the NIT determined [it]; a
unique identifier for the computer generated by the NIT; the
type of operating system used by the computer and the
operating system's active username . . .; the
computer's host name; and the computer's media access
control," id. at 581-82. The government further
[t]he NIT would not deploy onto a PlayPen user's computer
until that individual logged into the website (which required
them to have the TOR browser, know the 16-character website
address,  and enter their login information for
PlayPen), accessed a certain section in the site, and then
actually requested content by clicking on a post in one of
the more egregious sections.
the NIT, federal agents linked PlayPen user
"notsoslow"-later determined to be Daryl
Pawlak-with an IP address associated with a residence in
Johnson County, Texas. The user had been logged into PlayPen
for more than fourteen hours before the NIT deployed on his
computer in March 2015, and he had spent an additional
hour-and-a-half on PlayPen during the FBI's operation of
the website. The NIT also returned Pawlak's computer
user-name ("d.pawlak"), the name of the computer
("Sigma94"), and the computer's MAC address.
October 1, 2015, after obtaining a search warrant for
Pawlak's residence, FBI agents interviewed Pawlak's
wife. Using the wife's cell phone, Agent Marya Wilkerson
called Pawlak and recorded the conversation. On the call,
Pawlak admitted, inter alia, that he had downloaded
and viewed child pornography using laptops from two different
employers, had an email address utilizing the term
"notsoslow," had previously used a work computer
with the name of "Sigma94," and believed his
username on that computer was "d.pawlak." Pawlak
also acknowledged that the computer (the "Sigma94
computer") had been in his possession from October 2014
until May 2015, when he returned it to his former employer,
Sigma Cubed following his termination.
recorded conversation, Pawlak stated that he had initially
viewed child pornography approximately three or four years
earlier while working for a previous employer. He admitted
that he preferred child pornography involving prepubescent
females approximately seven to eleven years old, that he
often accessed such pornography on a website called
"Girls Hub," and that he had last viewed child
pornography about one week before.
that day, Pawlak and Agent Wilkerson engaged in a second
conversation that was not recorded. Pawlak admitted that he
had attempted to delete the contents of the hard drive on his
current work computer (the "Independence Oil
computer") but was unable to do so.
later acquired the Sigma94 computer from Sigma Cubed. Paw-lak
was the first and only employee to use the computer, which
had remained in a sealed box in Sigma Cubed's offices
after he returned it in May 2015. Following a forensic
examination, law enforcement officials discovered several
images of child pornography in the temporary Internet cache
of the Sigma94 computer. The presence of the images in the
cache demonstrated that the files came from the Internet, as
well as that they were received and stored on the computer.
Federal agents also found evidence of seven other images of
child pornography on the computer.
addition, federal agents captured information from when
Pawlak accessed the PlayPen website both before and during
the thirteen days it was operated by the government. Evidence
showed that Pawlak clicked on several posts containing child
pornography involving prepubescent female children.
October 2015, the FBI obtained access to the Independence Oil
computer, on which investigators discovered approximately
eight hundred images and four videos of child pornography.
Pawlak was charged with receipt of child pornography, in
violation of 18 U.S.C. § 2252A(a)(2)(A) (Count One), and
access with intent to view child pornography involving a
prepubescent minor, in violation of 18 U.S.C. §
2252A(a)(5)(B) (Count Two).
moved to suppress the evidence obtained using the NIT, as
well as all other evidence discovered as a result of its
deployment. He claimed that the warrant was void ab
initio because it violated the scope of the issuing
magistrate judge's authority under Federal Rule of
Criminal Procedure 41(b). He also moved to dismiss the
indictment against him asserting that the government's
operation of the PlayPen website constituted outrageous
conduct. The district court denied both motions.
a three-day trial, a jury convicted Pawlak on both counts. At
sentencing, the presentence report recommended a two-level
obstruction-of-justice enhancement relating to Pawlak's
attempt to delete the contents of the hard drive on his
Independence Oil computer. The district court overruled
Pawlak's objection to the enhancement. The court
sentenced Pawlak to 210 months' imprisonment on each
count, to be served concurrently, followed by a supervised
release term of fifteen years.
raises five issues on appeal. First, he asserts that the
district court erred in denying his motion to dismiss the
indictment based on outrageous government conduct. Second,
Pawlak avers that the court erred in denying his motion to
suppress. Third, he contends that the evidence was
insufficient to sustain his conviction for access with intent
to view child pornography involving a prepubescent minor
(Count Two). Fourth, Pawlak maintains that the evidence was
insufficient to support a conviction for receipt of child
pornography (Count One). Fifth, Pawlak claims that the
district court clearly erred by applying the U.S.S.G. §
3C1.1 obstruction-of-justice enhancement.
avers that the district court erred in denying his motion to
dismiss. "[W]e review de novo whether
outrageous conduct requires dismissal of an indictment."
United States v. Sandlin, 589 F.3d 749, 758 (5th
due process clause protects defendants against outrageous
conduct by law enforcement agents." United States v.
Arteaga, 807 F.2d 424, 426 (5th Cir. 1986). However,
"[g]overnment misconduct does not mandate dismissal of
an indictment unless it is so outrageous that it violates the
principle of fundamental fairness under the due process
clause of the Fifth Amendment." Sand-lin, 589
F.3d at 758-59 (citation omitted). Consequently, "the
outrageous-conduct defense requires not only government
overinvolvement in the charged crime but a passive role by
the defendant as well. A defendant who actively participates
in the crime may not avail himself of the defense."
Arteaga, 807 F.2d at 427.
evaluate the government's conduct "in light of the
undercover activity necessary to the enforcement of the
criminal laws." United States v. Fortna, 796
F.2d 724, 735 (5th Cir. 1986) (citation omitted). The
outrageous-conduct standard is "extremely
demanding," Sandlin, 589 F.3d at 758, and
"a due process violation will be found only in the
rarest and ...