Submitted: November 19, 2015
from United States District Court for the District of
Nebraska - Omaha
RILEY, Chief Judge, BEAM and KELLY, Circuit Judges.
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.
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
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.
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.
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.
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.
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.
Application for Interception of Electronic
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
application to intercept electronic communications must
contain the identity of the authorized official who approved
it. See 18 U.S.C. § 2518(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).
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.
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
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.