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United States v. Pawlak

United States Court of Appeals, Fifth Circuit

August 15, 2019

DARYL GLENN PAWLAK, Defendant-Appellant.

          Appeal from the United States District Court for the Northern District of Texas

          Before SMITH, WIENER, and ELROD, Circuit Judges.


         Daryl 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.



         In 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.

         Unlike 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. Id.

         In 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 users.[1]

         The 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 explains that

[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, [2] 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.


         Using 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.

         On 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.

         In the 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.

         Later 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.

         The FBI 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.

         In 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.

         In 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).

         Pawlak 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.

         Following 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.

         Pawlak 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.


         Pawlak 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 Cir. 2009).


         "The 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.

         We 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 ...

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