RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0306p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KYLE BATEMAN,

Defendant-Appellant.

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No. 18-3977

Appeal from the United States District Court

for the Southern District of Ohio at Dayton.

No. 3:17-cr-00156-1—Thomas M. Rose, District Judge.

Decided and Filed: December 23, 2019

Before: McKEAGUE, BUSH, and NALBANDIAN, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Gregory A. Napolitano, LAUFMAN & NAPOLITANO, LLC, Cincinnati, Ohio, 

for Appellant. Kevin Koller, UNITED STATES ATTORNEY’S OFFICE, Cincinnati, Ohio, for 

Appellee.

_________________

OPINION

_________________

JOHN K. BUSH, Circuit Judge. This appeal is from a child pornography conviction 

obtained through the government’s deployment of a Network Investigative Technique (“NIT”) to 

unmask anonymous users of a “dark-web” child pornography website known as “Playpen.” 

Defendant-appellant Kyle Bateman, like defendants in other Playpen-related prosecutions, 

challenges the validity of the nationwide search warrant (“NIT warrant”) that the government 

>
No. 18-3977 United States v. Bateman Page 2

obtained from a federal magistrate judge in the United States District Court for the Eastern 

District of Virginia, which authorized the initial use of NIT. The NIT warrant, in turn, led the 

United States District Court of the Southern District of Ohio to issue a search warrant 

(“S.D. Ohio warrant”), thus allowing authorities to search Bateman’s residence and computer. 

There, law enforcement agents obtained over 599 illicit images of children in Bateman’s 

possession. 

Bateman filed two motions: (1) to suppress the evidence obtained from the search 

warrants, and (2) for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), to question 

FBI Special Agent Douglas Macfarlane, who submitted the affidavit to obtain the initial NIT 

warrant. The district court denied both motions. Bateman then pleaded guilty to possession of 

child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B); however, his plea agreement 

reserved him the right to appeal the district court’s denial of his suppression and Franks motions.

Bateman’s suppression motion fails based on our rulings in United States v. Moorehead, 

912 F.3d 963 (6th Cir.), cert. denied, 140 S. Ct. 270 (2019), and United States v. Harney,

934 F.3d 502 (6th Cir. 2019). We also reject Bateman’s arguments for a Franks hearing, as they 

are not persuasive under this court’s precedent. Accordingly, we AFFIRM. 

I.

The ever increasing and unprecedented capabilities of today’s world wide web offer users 

access to information far beyond even twentieth-century imagination––all in just a matter of 

seconds. Adopting the vernacular of cyber-speak, the great majority of this content is on the 

“open” or “traditional” internet, meaning it is accessible by ordinary users without use of any 

special equipment, passwords, secret knowledge, or closed networks. But, beneath this easily 

accessible world lies a wholly separate world of cyber content, known colloquially as the “dark-
No. 18-3977 United States v. Bateman Page 3

web,” which is largely inaccessible to average internet users.1 Within this space, a number of 

cyber outlets distribute questionable content.2 

“Playpen,” formerly one of the most notorious child pornography websites online with 

more than 215,000 registered users around the world,3 was one of those dark-web outlets. 

Created and operated by a private citizen, the site offered anonymous web users, like Bateman, 

an unmatched forum not only to access sexually illicit images of children, but also to “discuss” 

those images across the various discussion threads frequented by fellow users.4 Such activity is 

the subject of this appeal. 

***

FBI agents began to investigate the Playpen website in September 2014. Once accessed 

by agents, they discovered Playpen to be a message board with primary objectives of advertising 

and distributing child pornography. 

Playpen’s cyber location within the “dark-web”––as protected by the “Tor hidden service 

network” (“Tor”)5 ––rendered the website relatively inaccessible, as compared to websites on the 

1

See Jose Pagliery, The Deep Web you don’t know about, CNN, (Mar. 10, 2014, 9:18 AM), 

https://money.cnn.com/2014/03/10/technology/deep-web/index html. 

2

See Cadie Thompson, Beyond Google: Everything you need to know about the hidden internet, Business 

Insider, (Dec. 16, 2015, 2:43 PM), https://www.businessinsider.com/difference-between-dark-web-and-deep-web2015-11.

3Brad Heath, FBI ran website sharing thousands of child porn images, USA Today 

(Jan. 21, 2016, 5:36 PM), https://www.usatoday.com/story/news/2016/01/21/fbi-ran-website-sharing-thousandschild-porn-images/79108346/.

4

See id.

5Developed originally by the U.S. Navy and funded initially by the U.S. Department of State and the U.S. 

Department of Defense, the “Tor hidden service network,” or more simply, “Tor,” is software that can be employed 

by internet users to browse the Web anonymously, as well as to exchange private communications with others. Tor, 

as similar to more ubiquitous internet browsers, such as Chrome or Firefox, can be downloaded online. Therefore, 

the software can theoretically be employed for a range of purposes, as would any other internet browser. However, 

the critical differences are that the identities of internet users employing Tor are blocked entirely during ordinary 

web searching. According to the Tor project, the non-profit organization that currently runs Tor, a wide array of 

internet constituents make use of the Tor software, including those who want to protect their internet activities from 

website and advertising tracking, users concerned about cyberspying, and users who seek to avoid censorship by 

certain foreign governments. Users with Tor can also access online “hidden services,” which are essentially 

anonymous websites that can only be located within the protected Tor network––otherwise known as the “darkweb.” The location of these websites, as well as the identities of their administrators, are equally protected by Tor’s 
No. 18-3977 United States v. Bateman Page 4

“open” internet. And, of course, this was by design: The website’s URL deliberately was 

composed of a convoluted array of algorithmically-generated characters,6 meaning it was 

virtually impossible to access this content through an ordinary web user’s search. Additional 

barriers to entry included the numerous affirmative steps required of interested users, like 

Bateman, to access Playpen’s content. He had to (1) download and install the dark-web Tor 

software on his computer; (2) obtain the site’s intricate URL address directly from other 

anonymous users of Playpen, or from internet postings describing the website’s location and 

content; and (3) enter this precise URL into the downloaded Tor browser. Because of this 

arduous cyber arrangement, Playpen was able to mask the IP addresses of users like Bateman, 

thus hampering the FBI’s initial efforts to locate the site’s central American-based server, as well 

as identify registered Playpen “members.” 

However, in December 2014, after approximately two months of investigation, a foreign 

law enforcement agency alerted FBI agents of its suspicions that a U.S.-based IP address was 

being used to house Playpen. Armed with this information, agents identified the server hosting 

the website. In January 2015, agents then executed a search warrant on the server, which in turn 

allowed them to create a duplicate version of the server at a government facility in the Eastern 

District of Virginia. On February 19, 2015, the FBI apprehended the suspected administrator of 

Playpen and assumed administrative control of the website. 

Server data with nothing more, however, were insufficient to identify Playpen’s 

individual users. Only a more targeted search warrant could do that. Consequently, on February 

20, 2015, the FBI applied for a search warrant from a magistrate judge in the United States 

District Court for the Eastern District of Virginia, which would allow agents to employ NIT as a 

means in which to reveal the IP addresses of all users who logged onto Playpen. As a basis for 

the NIT warrant, the FBI included two attachments. Attachment A, entitled “Place to be 

technology, thus making the “dark-web” an attractive location for sites hosting questionable content. Stuart Dredge, 

What is Tor? A beginner’s guide to the privacy tool, The Guardian, (Nov. 5, 2013, 7:47 PM),

https://www.theguardian.com/technology/2013/nov/05/tor-beginners-guide-nsa-browser.

6Tor websites, like Playpen, use a lengthy, randomized array of algorithmically-generated characters for 

their URLs in order to make it unlikely that a user would accidentally type the URL into a browser. For example, 

between September 16, 2014 and February 18, 2015, the Playpen website was located at muff7i44irws3mwu.onion. 

On February 18, 2015, the URL changed to upf45jv3bziuctml.onion. (R. 16-7, NIT warrant at 228).
No. 18-3977 United States v. Bateman Page 5

Searched,” outlined the warrant’s purpose in allowing for the authorization of NIT on the 

government’s Eastern Virginia-based computer server. (R. 16-5, NIT warrant at 210). NIT was 

justified as a critical vehicle through which agents could obtain relevant information connected 

to the activated computers of any user or administrator who logged into the Playpen website via 

a username or password. Attachment B outlined the specific information to be seized from a 

user’s computer, which included the computer’s accurate IP address. FBI agents predicted that 

these IP addresses could lead to the identities of the site’s individual users and administrators. 

In support of the NIT warrant request, FBI Special Agent Douglas Macfarlane swore out 

a 32-page affidavit. Covering a number of topics related to the NIT deployment, the affidavit 

included (1) pertinent background information on the Tor software that formed the basis of 

Playpen’s operation; (2) specifics related to how agents would operate the NIT;7(3) an outline of 

the multi-step process required of users wishing to access Playpen;8 and (4) the substantive 

content a user would encounter during each level of access into Playpen.9 Elaborating further on 

the substantive content section, Agent Macfarlane also included a separate section of the 

affidavit, where he offered even greater detail regarding the types of graphic content encountered 

by users upon logging in, which included Playpen’s various sections, forums, and sub-forums 

devoted to certain “topics” and related discussion posts.10

7As explained by the affidavit, the government planned to target its NIT deployment for the specific 

purpose of obtaining information about a user’s computer only after that individual had gone through Playpen’s 

registration process (meaning the user had obtained a username and password, and then subsequently entered this 

information within Playpen’s homepage in order to access content). 

8The affidavit explained in detail the complicated process for logging into Playpen, which required users to 

register an account, and obtain a username and password—all of which the site promised would remain hidden. 

9For example, the affidavit explained that any users who reached the homepage would immediately 

encounter “two images depicting partially clothed prepubescent females with their legs spread apart.” (R. 16-5, NIT 

warrant at 228). This image was placed next to a set of instructions for joining Playpen. The affidavit also noted the 

cryptic prohibitions listed on Playpen and their translation into plain English. For example, the site’s explicit text, 

stating “No cross-board reposts, .7z preferred, encrypt filenames, include preview, Peace out,” translated into a 

prohibition on users from posting material derived from websites other than Playpen. (Id.) Also, the particular 

message element “.7z” referenced the method users could follow to compress large files for distribution to other 

users.” (Id. at 228–29). 

10For example, nested within the “Pre-teen Videos” section of the website, was a “Girls HC” (hardcore) 

sub-forum, which contained over 1,400 discussion topics and over 20,000 posts. (Id. at 231). According to Agent 

Macfarlane, the forums he reviewed “revealed [that] the majority contained discussions, as well as numerous images 
No. 18-3977 United States v. Bateman Page 6

On February 20, 2015, a United States magistrate judge from the Eastern District of 

Virginia signed the warrant. Immediately, and until March 4, 2015, law enforcement agents 

began operating the Playpen website and deploying NIT. During this short tenure, agents were 

able to uncover the IP addresses of all users who logged onto Playpen. One such user, 

“nevernudeever” (R. 16-7, S.D. Oho warrant at 309), was Bateman. Using the NIT software, 

FBI agents confirmed Bateman’s identity in connection with this IP address, and identified a 

service billing address matching Bateman’s home address. In addition, based on the 

“nevernudeever” profile, the NIT software was able to discern that Bateman had registered his 

Playpen account on or around November 19, 2014. Between that date and March 2, 2015, 

Bateman was recorded to have been actively logged onto Playpen for a total of 11 hours and 54 

minutes. Between February 20, 2015 and March 4, 2015––when FBI agents operated Playpen 

and deployed NIT––Bateman had logged onto Playpen numerous times, during which he had 

accessed approximately 75 threads in total, each of which contained various discussion posts. 

Based on the information obtained about Bateman’s Playpen activities through the NIT 

warrant, the government applied for a second warrant in the Southern District of Ohio––the 

district encompassing Bateman’s residence––in order to search Bateman’s home and collect 

evidence of his crimes related to the receipt and distribution of child pornography. In support of 

the warrant, FBI Special Agent Andrea Kinzig submitted a 33-page affidavit, where she set forth 

facts regarding (1) the Tor network; (2) the FBI’s administration of the website since February 

20, 2015; (3) Playpen’s graphic content; and (4) information collected about Bateman’s various 

activities while operating under the Playpen username “nevernudeever,” including three specific 

examples of the types of images and discussion threads he was accessing.11 Collectively, this 

that appeared to depict child pornography (“CP”) and child erotica of prepubescent females, males, and toddlers.” 

(Id. at 232). 

11In her affidavit, Agent Kinzig provided detailed information about Bateman’s activities on Playpen, 

which included his accessing of three specific discussion threads between February and March 2015. These threads 

included the following: (1) a thread entitled, “[new]MyBerryTryingtoGetItInEDIT [new],” which depicted an adult 

male engaged in sexual intercourse with a prepubescent female child; (2) a thread entitled “PTHC Anal dildo,” 

which contained close-up images of a purple object inserted into a female child’s anus; and (3) a thread entitled 

“A GIRL NAMED ALICIA 3yo or 4yo,” which included an image in which the finger of an adult male was inserted 

into the vagina of a nude, prepubescent, toddler-aged female child. (R. 16-7, S.D. Ohio warrant at 311–13). 

In Agent Kinzig’s opinion, the majority of images found within these threads contained child pornography as 

defined under 18 U.S.C. § 2256. (Id.). 
No. 18-3977 United States v. Bateman Page 7

information led Agent Kinzig to believe, based on her training and experience, that most of the 

images Bateman accessed depicted child pornography, as defined under 18 U.S.C. § 2256. 

Finally, within the affidavit, Agent Kinzig set forth facts confirming that the “nevernudeever” 

account was connected to Bateman’s IP address and home address. Based on this affidavit, on 

August 18, 2015, a United States magistrate judge from the Southern District of Ohio signed the 

search warrant for the search of Bateman’s home located in Washington Township, Ohio. 

Pursuant to the S.D. Ohio warrant, the government seized Bateman’s desktop computer and 

external hard drive. Across both sources, agents discovered approximately 599 images and 

video files depicting child pornography.

On September 28, 2017, a grand jury returned a single-count indictment against Bateman, 

charging him with possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). 

Thereafter, Bateman filed three motions to suppress, only two of which are relevant for this 

appeal. In the first, Bateman sought suppression of all evidence obtained by the government as a 

result of the NIT warrant, which also encompassed the evidence seized pursuant to the 

subsequent S.D. Ohio warrant. In the final motion, Bateman advanced supplemental arguments 

for suppressing the evidence obtained as a result of the NIT warrant, and requested a Franks 

hearing in order to interrogate Agent Macfarlane about the affidavit submitted in support of that 

warrant.

12

 

The district court denied all three motions to suppress. In denying the first motion, the 

district court referenced its previous ruling in United States v. Jones, 230 F. Supp. 3d 819, 821–

22 (S.D. Ohio 2017). In Jones, although the court had concluded that the NIT was a “tracking 

device,” it nonetheless held that even if the warrant violated Federal Rule of Criminal Procedure 

41, the good-faith exception to the exclusionary rule applied, meaning the evidence did not have 

to be suppressed. Id. at 828; see United States v. Leon, 468 U.S. 897 (1984). In denying the 

third motion, the court held that Bateman made none of the necessary showings to justify a 

Franks hearing. Namely, Bateman had failed to (1) make a substantial preliminary showing of 

the falsity of Agent Macfarlane’s statements; (2) make a substantial preliminary showing that 

12However, Bateman’s third motion did not reference the S.D. Ohio warrant, and therefore, did not request 

a Franks hearing to question Agent Kinzig about her affidavit. 
No. 18-3977 United States v. Bateman Page 8

Agent Macfarlane made the allegedly false statements about Playpen with deliberate or reckless 

disregard for the truth; and (3) address, let alone establish, materiality in his motion. As to the 

latter, the district court concluded that even if what Bateman had alleged to be false in the 

affidavit was suppressed, there were still “sufficient facts to establish the necessary probable 

cause [for the magistrate judge] to have properly issued the NIT warrant.” (R. 22, decision 

& entry at 457). Subsequently, on May 7, 2018, Bateman entered a conditional plea agreement, 

admitting that he had used various internet sites to access, download, and view child 

pornography files over a span of two years in violation of 18 U.S.C. § 2252(a)(2). However, 

pursuant to Federal Rule of Criminal Procedure 11(a)(2), based on his plea agreement, Bateman 

reserved the right to appeal the district court’s denials of his motions to suppress and for a 

Franks hearing. Accordingly, this timely appeal ensued.

II.

A. Bateman’s Motion to Suppress

Generally, when reviewing the denial of a defendant’s motion to suppress, “we review 

the district court’s findings of fact for clear error and its conclusions of law de novo.” United 

States v. Moorehead, 912 F.3d 963, 966 (6th Cir. 2019) (quoting United States v. Buford, 

632 F.3d 264, 268 (6th Cir. 2011)). The evidence is assessed “in the light most likely to support 

the district court’s decision.” Id. (quoting United States v. Powell, 847 F.3d 760, 767 (6th Cir.), 

cert. denied, 138 S. Ct. 143 (2017)). “[A] denial of a motion to suppress will be affirmed on 

appeal if the district court’s conclusion can be justified for any reason.” Id. (alteration in 

original) (quoting United States v. Pasquarille, 20 F.3d 682, 685 (6th Cir. 1994)). 

The Fourth Amendment protects individuals against “unreasonable searches and 

seizures.” U.S. Const. amend. IV. The Amendment mandates that warrants be based on the 

government’s showing of “probable cause” and include language “particularly describ[ing] the 

place to be searched, and the persons or things to be seized.” Id. When officials violate these 

commands, courts generally suppress the resulting evidence. See Mapp v. Ohio, 367 U.S. 643, 

648 (1961); see also Harney, 934 F.3d at 505. “But because the Fourth Amendment by its terms 

and history does not require exclusion . . . courts will not exclude evidence when the costs of 
No. 18-3977 United States v. Bateman Page 9

suppression outweigh the benefits of deterrence,” Harney, 934 F.3d at 505 (citing Davis v. 

United States, 564 U.S. 229, 236–37 (2011)), “such as when reasonable officers rely on a 

magistrate’s warrant in good faith,” id. (citing Leon, 468 U.S. at 919–21). Notwithstanding this 

exception, an officer still “cannot reasonably presume” that a “facially deficient” warrant is 

valid. Leon, 468 U.S. at 923. Evidence obtained as a result of a facially invalid warrant cannot 

be admitted pursuant to the “good faith” exception. See id. 

At the district court, Bateman moved to suppress all the evidence collected by the 

government, as well as all his statements made on August 19, 2015, when the FBI searched his 

home and interrogated him pursuant to the S.D. Ohio warrant, which was in turn, based on the 

NIT warrant issued from the Eastern District of Virginia. Bateman sought suppression based on 

the “fruit of the poisonous tree” doctrine. Namely, Bateman argued that the first NIT warrant 

was void ab initio because it lacked applicability outside of the Eastern District of Virginia, and 

therefore, all the evidence and statements obtained by the government pursuant to the warrant 

issued out of the Southern District of Ohio must be suppressed. 

As Bateman acknowledges, his motion to suppress the NIT warrant is identical to that 

already decided twice by this circuit, and similar to other motions filed by defendants across the 

country, who have been charged under 18 U.S.C. § 2252(a)(4)(B) based on the government’s 

deployment of the NIT technique between February 20, 2015 and March 4, 2015. 

In Moorehead, we considered a motion to dismiss filed by a defendant who was 

subjected to a residential search of his home located in the Western District of Tennessee, based 

upon a warrant that was issued pursuant to the government’s original NIT warrant. 912 F.3d at 

965–66. At the district court level, the defendant argued that the NIT warrant violated Federal 

Rule of Criminal Procedure 41 and 28 U.S.C. § 636, given that it was executed outside of the 

issuing magistrate judge’s territorial jurisdiction. Dismissing these arguments, we engaged in a 

straightforward application of the good-faith exception to the exclusionary rule under Leon. 

Under this framework, we found that even if the NIT warrant was void ab initio and violated 

Rule 41(b), in that it authorized a search outside of the Eastern District of Virginia, the 

good-faith exception to the exclusionary rule still precluded suppression of the evidence seized 

pursuant to the warrant. See id. at 968. We made this determination based upon the principle 
No. 18-3977 United States v. Bateman Page 10

that “[t]he good-faith exception is not concerned with whether a valid warrant exists, but instead 

asks whether a reasonably well-trained officer would have known that a search was illegal.” Id. 

Under this directive, we then concluded that the FBI officers involved in the computer and 

residential searches pursuant to the original NIT warrant would reasonably not have known that 

the NIT warrant was invalid, and therefore, were acting in good faith. Id. at 968–71. 

Even with the binding value of the Moorehead decision, the defendant in Harney

attempted to place his situation outside of our precedent by advancing numerous additional 

objections to the warrant’s validity. Harney, 934 F.3d at 505–07. However, based on the 

directives of our previous ruling, which we held applicable to the facts in Harney, we dismissed 

each of the defendant’s arguments summarily. Id. In doing so, we reaffirmed that the 

investigators who seized evidence pursuant to the original warrant acted in good faith when 

relying on that warrant. Id. at 505–06. Pertinent to our findings were the detailed facts alleged 

by Agent Macfarlane in his 32-page affidavit that were accepted as establishing probable cause 

by the issuing magistrate judge in the Eastern District of Virginia. Id. at 505. Namely, Agent 

Macfarlane’s affidavit offered specific and particular details that (1) explained the need for the 

NIT search; (2) offered logistical information on how the program would work; (3) explained 

how the government would only be limited to searching computers that logged onto Playpen 

with a username and password; and (4) listed the seven specific items that the government 

sought from each computer logging into Playpen during the span in which agents would be 

administering the site. Id.

Accordingly, we find that under this court’s holdings in Moorehead and Harney, the 

search of Bateman’s home executed pursuant to the NIT warrant was valid under the good-faith 

exception. Indeed, Bateman acknowledges that his appeal here is without merit under this 

court’s precedent, and he raises it only to preserve his argument from a claim of waiver should 

our precedent change by virtue of an en banc decision, or by a ruling of the Supreme Court.13

Also, as Bateman concedes, all other circuits that have been faced with questions of the validity 

13Note that as of this writing, this circuit has neither granted an en banc rehearing to an appellant who has 

challenged the NIT warrant, nor has the Supreme Court granted certiorari on this issue, despite multiple petitions

having been filed seeking such review. 
No. 18-3977 United States v. Bateman Page 11

of the NIT warrant have uniformly rejected defendants’ analogous arguments to suppress the 

evidence seized by the government from their activated computers and from their physical 

residences. See United States v. Eldred, 933 F.3d 110 (2d Cir. 2019) (assuming arguendo that 

the NIT warrant violated the Fourth Amendment but holding officers acted in good faith and 

suppression is not warranted); United States v. Ganzer, 922 F.3d. 579 (5th Cir. 2019); United 

States v. Henderson, 906 F.3d 1109 (9th Cir. 2018); United States v. Kienast, 907 F.3d 522 (7th 

Cir. 2018); United States v. Werdene, 883 F.3d 204 (3d Cir. 2018); United States v. McLamb, 

880 F.3d 685 (4th Cir. 2018); United States v. Levin, 874 F.3d 316 (1st Cir. 2017); United States 

v. Horton, 863 F.3d 1041 (8th Cir. 2017); United States v. Workman, 863 F.3d 1313 (10th Cir. 

2017). 

To reiterate then, Bateman acknowledges, and we recognize, that our controlling 

precedent forecloses his challenge to the district court’s denial of his suppression motion. 

Consequently, we AFFIRM the holding of the district court.14

B. Bateman’s Motion for a Franks Hearing

Lastly, Bateman argues that the district court erred in denying his motion for a Franks

hearing. In making this argument, Bateman claims there was a substantial preliminary basis 

upon which to conclude that Agent Macfarlane made deliberately false or recklessly misleading 

declarations, which were essential to the magistrate judge’s finding of probable cause to issue the 

NIT warrant. And, although Bateman did not raise this argument at the district court level, he 

also contends that he was improperly denied a Franks hearing in connection with the S.D. Ohio 

warrant issued for a search of his residence. Here too, he argues that Agent Kinzig made 

deliberately false or recklessly misleading declarations, which were essential to the magistrate’s 

14Although we affirm the holding of the district court on this issue, we make one small modification to the 

district court’s labeling of the government deployment of the NIT operation as a “tracking device.” (R. 22, decision 

and entry at 455) (“T[his] Court has previously considered the Network Investigative Technique, (NIT), to be a 

tracking device . . . [and it] has not changed its view.”). Namely, to ensure uniformity with our most recent holding 

on this issue, we characterize the government’s NIT deployment as a “search,” not as a “tracking device.” 

See Harney, 934 F.3d at 505 (ruling on the validity of the warrant under the Leon good faith exception for reasons 

including that Agent Macfarlane submitted a lengthy affidavit “explaining the need for the search and detailing how 

it would work”) (emphasis added)).
No. 18-3977 United States v. Bateman Page 12

finding of probable cause to issue the subsequent warrant.15 On this point, Bateman argues that 

unlike other defendants who have come before the district court in connection with the 

government’s NIT deployment, he did not have the opportunity to examine either of the affiant 

officers responsible for the warrants issued in this case. Instead, the district court denied 

Bateman’s motion for a Franks hearing of Agent Macfarlane, concluding that Bateman had 

neither met his burden to demonstrate that Agent Macfarlane had acted with deliberate falsity or 

recklessness, nor demonstrated the materiality of what Bateman believes were the false factual 

assertions leading to the issuance of the warrant. 

This court evaluates a “district court’s denial of a Franks hearing under the same standard 

as for the denial of a motion to suppress: the district court’s factual findings are reviewed for 

clear error and its conclusions of law are reviewed de novo.” United States v. Graham, 275 F.3d 

490, 505 (6th Cir. 2001); see also United States v. Young, 847 F.3d 328, 348 (6th Cir.), cert 

denied, 138 S. Ct. 147, 199 (2017); United States v. Poulsen, 655 F.3d 492, 504 (6th Cir. 2011) 

(“The determination as to whether a statement made in an affidavit is made with reckless 

disregard of the truth is a fact question.” (quoting United States v. Rice, 478 F.3d 704, 709 (6th 

Cir. 2007)).

“[O]f course, a presumption of validity [exists] with respect to the affidavit supporting 

the search warrant.” Franks, 438 U.S. at 171. And, “[w]hether to hold an evidentiary hearing 

based upon a challenge to the validity of a search warrant’s affidavit, given alleged 

misstatements and omissions, is committed to the sound discretion of the district court.” Young, 

847 F.3d at 348; see also Graham, 275 F.3d at 505. A defendant challenging the validity of a 

search warrant’s affidavit bears a heavy burden. To be entitled to a Franks hearing, he must “1) 

make[] a substantial preliminary showing that the affiant knowingly and intentionally, or with 

15We recognize that Bateman’s three motions to suppress in the district court did request the suppression of 

evidence obtained at his physical residence, which was seized pursuant to the S.D. Ohio warrant––a warrant that 

was issued based upon information the government obtained via the NIT warrant. However, not one of Bateman’s 

motions before the district court directly challenged the validity of the S.D. Ohio warrant. Nor did Bateman request 

a Franks hearing to question Agent Kinzig. Instead, Bateman’s district court motion for a Franks hearing singularly 

challenged Agent MacFarlane’s affidavit. Appropriately then, the district court’s order denying all three of 

Bateman’s motions did not reference Agent Kinzig’s affidavit. And because Bateman’s conditional guilty plea 

preserves his right only to appeal the district court’s decision––as opposed to any failure of the district court to sua 

sponte order a Franks hearing on the S.D. Ohio warrant––Bateman has waived his Franks argument related to the 

S.D. Ohio warrant, here. See United States v. Martin, 526 F.3d 926, 933 (6th Cir. 2008).
No. 18-3977 United States v. Bateman Page 13

reckless disregard for the truth, included a false statement or material omission in the affidavit; 

and 2) prove[] that the false statement or material omission is necessary to the probable cause 

finding in the affidavit.” Young, 847 F.3d at 348–49 (quoting United States v. Pirosko, 

787 F.3d 358, 369 (6th Cir. 2015)). If the defendant alleges an affiant’s “recklessness,” the court 

employs a subjective test. United States v. Cican, 63 F. App’x 832, 835–36 (6th Cir. 2003); 

United States v. Colquitt, 604 F. App’x 424, 429–30 (6th Cir. 2015). A law enforcement 

officer’s statement is only considered to be issued with “reckless disregard for the truth” if a 

defendant shows that the affiant subjectively “entertain[ed] serious doubts as to the truth of his 

[or her] allegations.” Cican, 63 F. App’x at 836 (quoting United States v. Whitley, 249 F.3d 614, 

621 (7th Cir. 2001)). “Allegations of [an agent’s] negligence or innocent mistake are 

insufficient.” Franks, 438 U.S. at 171. “Only after the defendant makes this showing may the 

court consider the veracity of the statements in the affidavit or the potential effect of any omitted 

information.” United States v. Archibald, 685 F.3d 553, 558–59 (6th Cir. 2012). Here, a 

defendant must “point out specifically the portion of the warrant affidavit that is claimed to be 

false.” Franks, 438 U.S. at 170; see United States v. Green, 572 F. App’x 438, 442 (6th Cir. 

2014) (“[T]his court’s well-settled framework for Franks hearings requires a defendant to ‘point 

to specific false statements’. . . .” (quoting United States v. Cummins, 912 F.2d 98, 103 (6th Cir. 

1990))). “[I]f, when material that is the subject of the alleged falsity or reckless disregard is set 

to one side, there remains sufficient content in the warrant affidavit to support a finding of 

probable cause, no hearing is required.” Franks, 438 U.S. at 171–72. 

We find that the district court did not err in denying Bateman’s request for a Franks 

hearing of Agent Macfarlane.16

First, in an effort to establish the preliminary “falsity” showing for a Franks hearing, 

Bateman claims that Agent Macfarlane’s affidavit contained a “false description of [Playpen’s] 

16The district court’s decision was consistent with every other reported district court decision on 

defendants’ motions for Franks hearings related to the NIT warrant. To date, there have been nearly twenty cases in 

which defendants have advanced the motion. See, e.g., United States v. Gaver, No. 3:16-CR-88, 2017 WL 1134814 

(S.D. Ohio Mar. 27, 2017); United States v. Kahler, 236 F. Supp. 3d 1009 (E.D. Mich. Feb. 14, 2017); United States 

v. Darby, 190 F. Supp. 3d 520 (E.D. Va. June 3, 2016), aff’d by United States v. Darby, 721 F. App’x 304 (4th Cir. 

2018). Furthermore, the Seventh Circuit has been the only circuit to directly address this issue on appeal; when 

doing so, it affirmed the district court’s decision that a Franks hearing was not warranted. See United States v. 

Kienast, 907 F.3d 522 (7th Cir. 2018). 
No. 18-3977 United States v. Bateman Page 14

home page, which was the single most important piece of the probable cause puzzle,” and “false 

statements about the place to be searched pursuant to the NIT warrant.” (R. 22, decision and 

entry at 456–57) (citation omitted). Specifically, Bateman claims the affidavit falsely described 

the Playpen website as a forum dedicated to the advertisement and distribution of child 

pornography, as well as a forum dedicated to the sexual abuse of children.17 However, it is clear 

that Bateman is merely splitting hairs in making this accusation, and accordingly, we agree with

the district court that Bateman makes a vain attempt to “characterize the Playpen website as 

merely a source of innocent child erotica.” (Id. at 457).

As the district court noted correctly, the topics, images, and discussion forums of which 

Bateman attempts to characterize as falling within the legal bounds of child erotica are far from 

it. Make no mistake: The Playpen website was designed to disseminate child pornography, and 

it was used as a vehicle to do so by those in the “know,” who took the multiple, arduous steps to 

gain access to this dark-web haven. Despite Bateman’s argument, it is of little import that the 

Playpen website did not offer an explicit description of its purpose on the homepage—its 

purpose could be perceived almost immediately by the illicit material littered across that page 

and the site’s various connected pages.

Related to his first falsehood contention, Bateman argues that the general descriptions of 

Playpen provided by Agent Macfarlane in his affidavit could have misled the magistrate judge 

into believing that explicit advertisements of Playpen’s distribution of child pornography 

objective were included throughout the website. Here again, we make a similar conclusion as 

above: The technicality that Bateman raises is of no import, as he still fails to demonstrate any 

showing of falsity or material omission within Agent Macfarlane’s statements. And in fact, we 

agree with the district court that in no way does Agent Macfarlane’s affidavit suggest or imply 

17For the first time on appeal, Bateman alleges that the affidavit falsely described Playpen’s homepage as 

including “two images depicting partially clothed prepubescent females with their legs spread apart,” when in fact, 

he argues, by the time the warrant was issued, the homepage only included a single image of a prepubescent female 

posed in a sexually suggestive manner. (Appellant Bateman Br. at 14). Other defendants convicted in the NIT 

operation have raised this same argument many times in district court, and every court has rejected it. See, e.g., 

United States v. Owens, No. 16-CR-38 JPS, 2016 WL 7079609, at *6 (E.D. Wis. Dec. 5, 2016), aff’d by Kienast, 

907 F.3d 522 (7th Cir. 2018); Gaver, 2017 WL 1134814, at *5; Kahler, 236 F. Supp. 3d at 1023; Darby, 190 F. 

Supp. 3d at 533–34. Thus, we likely would reject it here, as well. Bateman failed to raise the claim below, and 

because the alleged images Bateman describes are not in the district court record (Bateman relies on an opinion in 

another case), see Gaver, 2017 WL 1134814, at *4–5, we will not address the merits of the argument.
No. 18-3977 United States v. Bateman Page 15

that an explicitly defined purpose of Playpen appeared on the website’s homepage or was 

presented to users upon their logging into the site. Rather, we view Agent Macfarlane’s 

summary descriptions of the website as operating as general backdrop paragraphs in which to 

contextualize why the FBI planned to conduct its NIT program. Further, the detailed 

descriptions provided by Agent Macfarlane were necessary to explain the graphic nature of the 

material contained in Playpen (on the homepage and within its various pages), and in no way 

would have misled the magistrate judge about the general content contained on Playpen’s 

homepage, or on the site in general. But, even if we were to accept Bateman’s technicality 

argument and conclude that somehow, Agent Macfarlane’s descriptions of Playpen contained 

falsehoods or material omissions, Bateman fails to offer any evidence showing that Agent 

Macfarlane knowingly, intentionally, or with reckless disregard to the truth, included such 

falsehoods or material omissions in his affidavit. 

Yet, most fatal to the claim, Bateman makes no showing that removing the allegedly false 

descriptions of Playpen’s homepage provided by Agent MacFarlane would have materially 

affected the probable cause assessment of the magistrate judge in validating the warrant. 

Probable cause “requires only a probability or substantial chance of criminal activity.” United 

States v. Tagg, 886 F.3d 579, 585–86 (6th Cir. 2018) (quoting District of Columbia v. Wesby, 

138 S. Ct. 577, 586 (2018)). This is not a high bar for the government to satisfy. Accordingly, 

the magistrate judge’s determination of the existence of probable cause was likely not contingent 

on the appearance or non-appearance of explicit text on Playpen’s homepage that outlined, in 

words, the site’s purpose of disseminating child pornography. Rather, probable cause was more 

likely established through the magistrate judge’s assessment of the entirety of Agent 

Macfarlane’s affidavit, which as we explain above, provides necessary details of (1) Playpen’s 

provocative homepage; (2) its secret location within the “dark-web” Tor network; and (3) the 

various affirmative steps that users, like Bateman, had to take in order to locate the website, 

register, and subsequently access child pornography. Cf. Kienast, 907 F.3d at 529 (“[B]y the 

time such actors have downloaded the software needed to access the dark web, entered the 

specific, sixteen-digit character jumble that is Playpen’s web address, and logged into the site 

featuring at least one sexually suggestive image of a child, we are very skeptical that they are 

surprised to find themselves on a website offering child pornography.”).
No. 18-3977 United States v. Bateman Page 16

In a final effort to allege a falsehood and render the NIT warrant defective, Bateman 

states that Agent Macfarlane suggested implicitly in the affidavit that the government’s search 

activity would be confined within the Eastern District of Virginia. In making the argument, 

Bateman appears to rely simply on the cover page of the warrant, which does indicate that the 

intended subject property was to be located within the Eastern District of Virginia. However, an 

assessment of the affidavit in its entirety, including its referenced attachment, makes clear that 

Agent Macfarlane did not misrepresent the locations to be searched under the NIT deployment. 

Rather, in the affidavit and the attachment, he states that the warrant would authorize agents 

carrying out the NIT program to “cause an activating computer—wherever located—to send 

[identifying information] to a computer controlled by or known to the government.” (R. 16-5 

NIT Warrant at 244) (emphasis added); see Harney, 934 F.3d at 505–06 (concluding the NIT 

warrant satisfied the “particularity” requirement of the Fourth Amendment because it 

“sufficiently described the place to be searched, saying all that reasonably could be said under 

the circumstances” and “allowed the government to search only those computers that logged into 

Playpen” during a set period of time).18

Moreover, tantamount to our assessment above, even if we were to agree with Bateman 

that the affidavit contained falsehoods or material omissions related to the location to be 

searched, he fails to provide any evidence that Agent Macfarlane knowingly, intentionally, or 

recklessly included such statements within his affidavit. Accordingly, we agree with the district 

court’s finding that Agent Macfarlane’s affidavit (1) accurately described the locations to be 

searched by agents administering the NIT deployment, which necessarily included locations 

outside of the Eastern District of Virginia, and (2) accurately described the NIT’s operation as 

being triggered only when an activating computer’s signals entered the Eastern District of 

Virginia (i.e. the jurisdiction in which agents were administering Playpen). 

18In his brief, Bateman also claims that the affidavit’s description of the location to be searched was false 

because “[f]ull disclosure of the intended extrication of private [IP] addresses from each computer visitor to the 

Playpen website is wholly absent from the declaration of the search contained within the Virginia warrant, or its 

attachment.” (Appellant Bateman Br. at 17). Although we disagree with this argument, we will not address its 

merits in this opinion, as Bateman raises it for the first time on appeal.
No. 18-3977 United States v. Bateman Page 17

Finally, Bateman offers no evidence to show that the allegedly false locations, or 

omissions of such, within the affidavit were material in the magistrate judge’s ultimate 

determination of probable cause. To reiterate, the government need not show more than simply a 

“probability or substantial chance of criminal activity” to establish probable cause. Tagg,

886 F.3d at 585. Based on this standard, it is unlikely that the affidavit’s naming of locations to 

be searched––be it through searches conducted directly from the government’s administration of 

Playpen from the Eastern District of Virginia, or the searches of the computers of Playpen users, 

which were physically located within other jurisdictions, but technologically connected to 

Playpen’s home page within the Eastern District of Virginia––was material in the magistrate 

judge’s determination that there was a “probability” or “substantial chance” that Playpen users, 

like Bateman, entered Playpen for the purpose of accessing child pornography in violation of 

18 U.S.C. § 2252(a)(4)(B). Instead, as we discussed above, the likelihood of this criminal 

activity occurring was sufficiently established by the totality of the affidavit, as Agent 

Macfarlane provided a detailed and sufficiently specific picture of Playpen, its content, the 

process for users to register and access the site, and the government’s NIT program.

In light of the above, we AFFIRM the district court’s dismissal of Bateman’s Franks 

motion, as Bateman failed to show any of the requisite elements to trigger a Franks hearing in 

connection with the NIT warrant. 

III.

For the aforementioned reasons, we conclude that the district court did not err either in 

denying Bateman’s motion to suppress evidence seized pursuant to the NIT warrant, which led to 

his conviction under 18 U.S.C. § 2252(a)(4)(B), or in denying Bateman’s request for a Franks

hearing of Agent Macfarlane in connection with the NIT warrant. Therefore, we AFFIRM the 

judgment of the district court in full.