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United States v. Wagner

United States District Court, D. Kansas

February 12, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
WESLEY WAGNER (01), Defendant.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         On October 4, 2018, a jury convicted defendant Wesley Wagner of receiving and possessing child pornography. Doc. 73. This matter is before the court on Mr. Wagner's Renewed Motion for Judgment of Acquittal (Doc. 76)[1] and Motion for New Trial (Doc. 77). The government has responded to each motion (Docs. 86, 87, 90, & 91). Mr. Wagner's two motions make related arguments, so the court addresses them together.

         For reasons explained below, the court denies both motions. In sum, the government has presented sufficient evidence for a reasonable jury to find Mr. Wagner guilty beyond a reasonable doubt. And Mr. Wagner has failed to demonstrate that the ends of justice require a new trial.

         I. Background

         A. Mr. Wagner's Pre-Trial Motions (Docs. 25, 26, 27, & 32)

         In late 2014, the FBI discovered “Playpen”-a website hosting child pornography. The FBI found the website's server, and, in January 2015, seized that server under a warrant. Then, law enforcement officers operated the Playpen site from a location in the Eastern District of Virginia beginning February 20, 2015, until the FBI permanently disabled the website on March 4, 2015. While law enforcement officers operated Playpen, they deployed a computer program known as the Network Investigative Technique (“NIT”), trying to determine the identity of Playpen's users. The FBI traced one user-“soldiermike”-to an IP address registered to defendant Mr. Wagner. The NIT also revealed that the “soldiermike” username was associated with the email address “mike.jenkins72@yahoo.com” and a computer named “SFC-Gunner.” The user using the “soldiermike” username had logged into Playpen for almost nine total hours during the NIT's deployment. The FBI secured a search warrant from this court for Mr. Wagner's residence in White City, Kansas. When the FBI executed the search warrant on September 17, 2015, two agents-Agent Angie Jones and Agent Mike Daniels-interviewed Mr. Wagner. FBI agents also seized a laptop and a cell phone from the Wagner home.

         Mr. Wagner moved to suppress the statements he made during that interview because, he contended, the government used unconstitutional methods to secure them. Doc. 27. He also asked the court to dismiss the Indictment (Doc. 1) against him because the FBI's ongoing operation of the Playpen site constituted outrageous conduct. Doc. 32. The court denied both motions. Doc. 48. The FBI's interrogation, the court held, was non-custodial, and Mr. Wagner voluntarily made the statements his motion sought to suppress. Id. at 13. And the court rejected Mr. Wagner's argument that the government's operation of the Playpen site amounted to outrageous conduct. Id. at 13-15. Mr. Wagner also moved to suppress: (1) evidence that law enforcement officers had gathered during their search of his computer and home; and (2) statements he made when agents executed the search warrant on his home. Docs. 25 & 26. The court again denied both motions. Doc. 47.[2]

         B. Mr. Wagner's Trial

         The government called two witnesses during Mr. Wagner's trial: (1) Agent Angie Jones, who interviewed Mr. Wagner when she and other agents executed the search warrant on Mr. Wagner's home; and (2) expert witness Amy Corrigan, a forensic examiner with the FBI who specializes in digital forensics. During its case, the government admitted into evidence a played recording of Agents Jones and Daniels's September 17, 2015, interview with Mr. Wagner. During that interview, Mr. Wagner told the agents he had served in the military and had been diagnosed with post-traumatic stress disorder. He also explained that he previously had a pornography addiction and had accessed publicly available websites to view pornography. Mr. Wagner told the agents that persons other than himself and his wife, Brenda Wagner, had lived in their home in the past. He also told them that the laptop they later seized required no password to access its files, though the Wi-Fi service at the Wagner home required a password to use. When agents accessed files on the laptop, they found a “TOR” folder on the computer's desktop. “TOR, ” short for “The Onion Router, ” requires users to download special software and input exact website addresses to view web pages anonymously. Also, TOR browsers disguise users' IP addresses. The agents also found child pornography files saved to the computer's desktop. Mr. Wagner denied any knowledge of the TOR browser or child pornography on the laptop.

         Ms. Corrigan described how she had located more than 4, 000 image and video files on the laptop seized from Mr. Wagner's home that appeared to contain child pornography. The “TOR” folder on the laptop contained a specific website address for webpages that appeared to host child pornography materials, she explained. She found references to the “TOR” network and possible child exploitation materials on the laptop back to the period 2011 to 2015. Ms. Corrigan carefully described one 30-minute sequence of activity on the computer. During that 30 minutes, the laptop's user accessed: a website for Auto Zone, an auto parts retailer; a website for an O'Reilly Auto Parts store; a Yahoo Mail website for the username SFCWagner; an email website for the username Mike.Jenkins72; the website “chaturbate.com, ” which facilitates random chats-usually of a sexual nature-with the username “soldiermike”; and additional searches for car parts.

         Both Agent Jones and Ms. Corrigan testified that they didn't know who had accessed child pornography on the laptop in the Wagner home. And Ms. Corrigan testified that the cell phone agents had seized in Mr. Wagner's home contained no references to the email address “mikejenkins@yahoo.com” or the username “soldiermike.” But Ms. Corrigan's examination of the cell phone-which had a Bluetooth device name of “Wesley Wagner's G3”-showed YouTube searches and contacts from the social media site Tumblr that were indicative of child exploitation materials.[3] The phone also showed use of the email addresses “swag6482@gmail.com” and “SFC-Wagner@yahoo.com.” Finally, Ms. Corrigan testified that the phone contained nude images, possibly of minors.

         At the conclusion of the evidence, the jury convicted Mr. Wagner on two Counts: (1) Count One, which charged Mr. Wagner with knowingly receiving child pornography; and (2) Count Two, which charged him with knowingly possessing child pornography. Doc. 73.

         II. Renewed Motion for Judgment of Acquittal (Doc. 76)

         A. ...


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