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United States v. Pawlak

United States District Court, N.D. Texas, Dallas Division

May 30, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DARYL GLENN PAWLAK, Defendant.

          MEMORANDUM OPINION AND ORDER

          SIDNEY A. FITZWATER UNITED STATES DISTRICT JUDGE.

         Defendant Daryl Glenn Pawlak (“Pawlak”) moves for discovery and production of exculpatory evidence, and, in a related motion, to compel discovery of certain evidence, including the payload or network investigative technique (“NIT”), the exploit relating to the NIT, the server software, and the “unique identifier” generator that were used to identify a computer that accessed the Playpen website, link Pawlak to that computer, and establish an interstate nexus. The government has filed what appears to be a contingent motion for designation of a classified information security officer and for a pretrial conference under the Classified Information Procedures Act (“CIPA”), if the court grants Pawlak's motion to compel. For the reasons that follow, the court grants in part and denies in part Pawlak's motion for discovery, denies his motion to compel discovery, and denies the government's motion without prejudice as moot.

         I

         The background facts of this case are set out in a prior memorandum opinion and order and need not be repeated at length. See United States v. Pawlak, ___ F.Supp.3d ___, 2017 WL 661371, at *1 (N.D. Tex. Feb. 17, 2017) (Fitzwater, J.) (“Pawlak I”). Pawlak is charged by superseding indictment with the offenses of receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A), and access with intent to view child pornography involving a prepubescent minor, in violation of 18 U.S.C. § 2252A(a)(5)(B). The government alleges that Pawlak accessed child pornography via the Playpen website, which existed as a hidden website on the Tor Network.[1] Pawlak I, 2017 WL 661371, at *2. It maintains that the Federal Bureau of Investigation (“FBI”) used an NIT to send code to Pawlak's computer that caused the computer to send back to the FBI information that identified the computer Pawlak was using to view child pornography on the Playpen website.

         Pawlak has filed a motion for discovery and production of exculpatory evidence in which he requests that the government disclose under Fed. R. Crim. P. 16 information related to (1) the source code and programming data concerning the NIT used to access information under the Playpen investigation; (2) a detailed list of all the evidence gathered through the search warrant on case number 1:15-SW-89 that was executed between February 20, 2015 and March 4, 2015; and (3) all the evidence gathered through the search warrant on case number 1:15-SW-89 that was executed between February 20, 2015 and March 4, 2015 that relates to him. Pawlak requests under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), that the government produce (1) information or evidence indicating that he was unaware that the images he purportedly possessed, received, or viewed depicted minors; (2) information or evidence indicating that the images alleged in the indictment[2] or any image to be used as relevant conduct include persons who are in fact not minors; (3) information or evidence indicating that persons other than Pawlak had access to the devices used to download or view images alleged in the indictment or any image to be used as relevant conduct; and (4) any other exculpatory or mitigating information regarding him.

         Pawlak has also filed a first motion to compel discovery. In this motion, he moves under Rule 16(d) to compel the government to produce the source code, the payload or NIT, the exploit relating to the NIT, the server software, and the “unique identifier” generator that were used to identify a computer that accessed the Playpen website, link Pawlak to that computer, and establish an interstate nexus.

         The government has filed a sealed motion[3] for designation of classified information security officer and for pretrial conference pursuant to the CIPA, which appears to be contingent on the court's granting Pawlak's motion to compel.

         II

         The court turns first to Pawlak's motions. Given their related nature, the court will consider them together.

         A

         Pawlak seeks disclosure of various types of information under Rule 16, Brady, and Giglio. He also seeks to compel the government to disclose the source code or programming code, the payload or NIT, the exploit relating to the NIT, the server software, and the “unique identifier” generator that were used to identify a computer that accessed the Playpen website, link Pawlak to that computer, and establish an interstate nexus.

         The government responds that, subject to a protective order, it has provided or offered to provide Pawlak, or to his expert witness Dan James, essentially all the discovery that he is requesting, except the exploit. The government opposes disclosing the exploit, contending that Pawlak has not made a prima facie showing of materiality, and, even if he can show materiality, that the exploit is protected from disclosure by the qualified law enforcement privilege.

         Pawlak maintains that the government should be compelled to disclose the exploit because, as discussed in the declaration of Vlad Tsyrklevich (“Tsyrklevich”), a security engineer retained by the defense in the case of United States v. Michaud, No. 15-CR-5351 (W.D. Wash. Feb. 17, 2016), ...


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