United States Court of Appeals

For the Eighth Circuit

___________________________

No. 15-1209

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Timothy DeFoggi

lllllllllllllllllllll Defendant - Appellant

____________

Appeal from United States District Court 

for the District of Nebraska - Omaha

____________

 Submitted: November 19, 2015

 Filed: October 6, 2016

____________

Before RILEY, Chief Judge, BEAM and KELLY, Circuit Judges.

____________

KELLY, Circuit Judge.

Timothy DeFoggi was convicted of multiple child pornography-related

offenses following a jury trial. On appeal, he challenges several pretrial and trial

rulings, argues there wasinsufficient 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.
I. Background

The FBI 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 thisinvestigation,

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 pornography. 

PedoBook 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. 

Timothy 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

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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.

DeFoggi 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. 

After a 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. 

On 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. 

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II. Discussion

A. Application for Interception of Electronic Communication

DeFoggi 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 Cir. 2005). 

An application to intercept electronic communications must contain the identity

of the authorized official who approved it. See 18 U.S.C. § 2518(1). Intercepted

1

electronic communications may be suppressed upon a showing that, asrelevant 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). 

The statute states in relevant part: “Each application for an order authorizing

1

or approving the interception of a wire, oral, or electronic communication . . . shall

be made in writing upon oath or affirmation to a judge of competent jurisdiction and

shall state the applicant’s authority to make such application. Each application shall

include the following information: (a) the identity of the investigative or law

enforcement officer making the application, and the officer authorizing the

application. . . .” 18 U.S.C. § 2518(1). 

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The 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. 

At the 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 approving

judge. 

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

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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. 

B. Search Warrant 

DeFoggi also argues the district court erred in denying his motion to suppress

evidence obtained during the search of his home on April 9, 2013, because the

affidavit in support of the warrant did not establish probable cause. In particular, he

argues that there was insufficient information linking him to PedoBook, and thus no

probable cause to believe that evidence of criminal activity would be found at his

residence. “We review de novo the district court’s legal determination of probable

cause.” United v. Hager, 710 F.3d 830, 836 (8th Cir. 2013) (citing United States v.

Coleman, 700 F.3d 329, 334 (8th Cir. 2012)). 

“Probable cause exists when there is a fair probability that contraband or

evidence of a crime will be found in a particular place.” Id. (quotations and citations

omitted). We utilize a totality of the circumstances test and a common sense

approach when reviewing whether probable cause exists. Id. (quotations and citations

omitted). We “may draw reasonable inferencesfromthe totality of the circumstances

in determining whether probable cause exists to issue a warrant.” Id. (quotation

omitted). 

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The search warrant here was supported by probable cause. The warrant

application included an affidavit written by Special Agent Patricia J. Teakle of the

FBI, which carefully described PedoBook, the FBI’s methods of identifying its users,

and the link between DeFoggi and the website. As an initial matter, the affidavit

explained that because it was on the Tor network, PedoBook could not be accessed

without the installation of appropriate software and knowledge of its exact web

address. A user could obtain the web address for the website directly from other

users, or from internet postings describing PedoBook’s content and location, but not

from any type of web search. Accessing PedoBook therefore required numerous

affirmative steps by the user, making it extremely unlikely that a user would stumble

upon it without knowing that its purpose was to advertise and distribute child

pornography and understanding the content to be found there. 

The affidavit also explained that, through the government’s monitoring and

searches of the data logs once it had control of PedoBook, the FBI concluded that an

account was created on or about April 18, 2012, with the username “fuckchrist” and

display name “Ptasseater.” The affidavit included examples of activity conducted on

PedoBook by that member, including the filenames of the child pornography images

accessed and the private messages sent between that member and others. An FBI

“online covert employee” contacted that member via the private messaging feature

of PedoBook, and the member gave the FBI employee an email address

(fuckchrist@tormail.org) and told him he normally accessed the Tor network from

4:00 a.m. to 6:00 a.m. and 4:30 p.m. to 6:00 p.m. 

The affidavit then described how the FBI connected that username and display

name to DeFoggi. Several pages of the affidavit discussed how DeFoggi used these

same namesfor multiple child pornography websites, where he made comments very

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similar in substance and tone to those made on PedoBook. The FBI obtained an IP

address associated with the account “ptasseater” from one such website – an image

hosting website – which was connected to Verizon Internet Services. Verizon then

provided the personal information for the individual associated with that IP address

during the time period in which that user accessed child pornography on the image

hosting site – and that individual was DeFoggi. Other IP addresses used to access

child pornography were connected to DeFoggi in a similar manner. 

 Moreover, the affidavit explained that a subject under FBI investigation for

activities related to child exploitation material had provided the FBI with information

on an individual initially identified as “Jeff,” who was a member of “boylover.net,”

a known website for underage male child pornography, and used a variety of email

addresses including “ptasseater@hotmail.com.” The informant also provided the FBI

with a cell phone number for “Jeff” and told them of an individual who had

personally met “Jeff.” 

“Jeff” turned out to be DeFoggi, and he told the individual (then under FBI

surveillance) in-person that his real name was Tim, that he worked in the DC area,

that he had a government security clearance, and that he had a domestic partner. An

open source database check confirmed that DeFoggi lived at 20311 Crown Ridge

Court, Germantown, Maryland. The FBI then confirmed through the United States

Postal Service and visual surveillance that DeFoggi received mail at that residence

and maintained a vehicle registered in his name there. The cell phone number for

“Jeff” was eventually linked to DeFoggi. Finally, through surveillance with a pen

register and a trap and trace obtained for DeFoggi’s internet account, the FBI learned

that computers in DeFoggi’s home were connected to the Tor network at the same

times that “ptasseater” claimed to be online in the private chats over PedoBook. 

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DeFoggi counters that because a Myspace profile included in the affidavit did

not belong to him, the FBI had failed to link him to the accounts with the usernames

“ptasseater” and “fuckchrist.” DeFoggi argues others could have used the same

usernames, and that because the affidavit did not identify an IP address for DeFoggi

that linked himdirectly to PedoBook (although the FBI connected IP addresses linked

to DeFoggi to other child pornography websites), there was no probable cause. Given

the cumulative information included in the search warrant application linking

DeFoggi to multiple child pornography websites including PedoBook, these

assertions do not detract from our conclusion that probable cause existed. The

affidavit in support of the search warrant provided more than enough information to

support a finding of probable cause to believe that evidence of criminal activity

would be found at DeFoggi’s residence. 

C. Evidence of Chat Messages

DeFoggi also argues that the district court erred in denying his motion to

exclude evidence of his “fantasy chat messages” at trial because they were not

relevant under Federal Rule of Evidence 401 and were unfairly prejudicial under

Federal Rule of Evidence 403. Challenges to evidentiary rulings are reviewed for an

abuse of discretion. United States v. Sewell, 457 F.3d 841, 843 (8th Cir. 2006). We

will reverse only if an error “affects the substantial rights of the defendant” or has

“more than a slight influence on the [jury’s] verdict.” United States v. Yarrington,

634 F.3d 440, 447 (8th Cir. 2011) (quoting United States v. Elbert, 561 F.3d 771, 775

(8th Cir. 2009)). “We will not reverse if the error was harmless.” Id.

Rule 401 states that to be relevant, evidence must tend to make a fact more or

less probable or “be of consequence in determining the action.” Fed. R. Evid. 401. 

We have previously held that personal chats on child pornography websites are

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admissible as circumstantial evidence associating the defendant “with the child

pornography found on his computer,” and that “the district court was within its

discretion to admit” such chats. United States v. Manning, 738 F.3d 937, 943 (8th

Cir. 2014). As in Manning, “portions of the chats contained identifying information

about [DeFoggi].” Id. In the chats, DeFoggi wrote at length about his interest in

child pornography and solicited child pornography fromother members ofPedoBook.

DeFoggi’s chats therefore “revealed [his] identity, his preferences for different types

of child pornography, and his desire to exchange child pornography with other people

online.” Id. at 944. DeFoggi was charged with knowingly accessing a means or

facility ofinterstate commerce to view child pornography, and the chats were relevant

(once DeFoggi was connected to his usernames) as a means of identifying DeFoggi

as the person knowingly accessing the child pornography on his computer. The

district court thus did not abuse its discretion in determining that DeFoggi’s chats

were relevant evidence under Rule 401. 

DeFoggi argues that even if the chats were relevant, the district court

nonetheless erred in admitting them because they were unfairly prejudicial due to

their shocking nature. Relevant evidence may still be excluded if “its probative value

is substantially outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403.

And we agree that chats fantasizing about raping and killing children “are by their

very nature disturbing,” and “highly likely to generate an emotional response.” 

United States v. Evans, 802 F.3d 942, 946 (8th Cir. 2015). But the disturbing nature

of otherwise relevant evidence cannot be the sole reason to exclude it. Id. (“[Rule

403] does not offer protection against evidence that is merely prejudicial in the sense

of being detrimental to a party’s case,” but rather “evidence that is ‘unfairly

prejudicial.’” (quoting United States v. McCourt, 468 F.3d 1088, 1092 (8th Cir.

2006))); see also United States v. Johnson, 463 F.3d 803, 809 (8th Cir. 2006). 

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While the pure volume of the chats admitted into evidence concerns us, see

Evans, 802 F.3d at 946, DeFoggi makes only the most general of arguments on appeal

as to how their admission prejudiced him. He does not identify any specific chats he

believes are especially problematic; and he does not explain how the jury was

prejudiced, how the chats may have unfairly affected their view ofthe charges against

him, or how the chats were more disturbing than the images themselves. DeFoggi

calls the chats “shocking,” but “does not articulate what unfair prejudice resulted

from the publication of this evidence to the jury.” Id. (citing McCourt, 468 F.3d at

1092, for the proposition that “[t]he Supreme Court has advised that Rule 403

requires a preliminary showing of unfair prejudice before the need to balance the

probative value of the evidence and its alternatives arises”). Simply characterizing

the evidence in this way does not give us sufficient grounds to conclude that the

district court abused its discretion in admitting the chats. “Without a preliminary 2

showing of prejudice, ‘we need not consider or weigh the probative value’” of the

chats. Id. (quoting United States v. Worthey, 716 F.3d 1107, 1115 (8th Cir. 2013)).

D. Sufficiency of the Evidence

DeFoggi alleges that the government failed to adduce sufficient evidence to

convict him beyond a reasonable doubt of a child exploitation enterprise and access

with intent to view child pornography. We review the sufficiency of the evidence in

a jury trial de novo, but examine the evidence in the light most favorable to the jury’s

verdict, resolving factual disputes and accepting all reasonable inferences in support

of the verdict. Manning, 738 F.3d at 945. We must uphold the jury’s verdict “if there

is an interpretation of the evidence that would allow a reasonable-minded jury to

DeFoggi repeats his assertion that his chat messages were overly prejudicial

2

with regard to his motion for a new trial. We reject his challenge to the denial of his

motion for a new trial based on his chat messages for these same reasons.

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conclude guilt beyond a reasonable doubt.” United States v. Thompson, 285 F.3d

731, 733 (8th Cir. 2002). 

1. Count 1

DeFoggi was convicted of engaging in a child exploitation enterprise (CEE),

in violation of 18 U.S.C. § 2252A(g). Section 2252A(g) provides:

(1) Whoever engages in a child exploitation enterprise shall be fined

under this title and imprisoned for any term of years not less than 20 or

for life. 

(2) A person engages in a child exploitation enterprise for the purposes

of this section if the person violates [certain other sections] as a part of

a series offelony violations constituting three or more separate incidents

and involving more than one victim, and commits those offenses in 3

concert with three or more other persons. 

DeFoggi argues that under the proper application of the term “in concert with,” the

government provided insufficient evidence for the jury to convict him of engaging in

a CEE based on the predicate counts of accessing child pornography. We decide this

issue on narrow grounds. The indictment alleged that DeFoggi committed four

separate predicate violations as defined in § 2252A(g). Specifically, the government

charged fourinstances of accessing with intent to view child pornography in violation

of 18 U.S.C. § 2252A(a)(5)(b) (Counts 4–7). Section 2252A(a)(5)(b) is violated if

a person “knowingly accesses with intent to view, any . . . computer disk, or any other

The parties do not dispute that the CEE offense as charged involved more than 3

one victim. 

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material that contains an image of child pornography that has been . . . shipped or

transported using any means or facility of interstate or foreign commerce or in or

affecting interstate or foreign commerce by any means, including by computer.”

To convict DeFoggi of a CEE, there must be evidence that he committed at

least three of the predicate offenses “in concert with” three or more people. 

Precedential guidance on the “in concert” language in the CEE offense islimited, but

in construing 21 U.S.C. § 848(c), which proscribes a criminal drug enterprise, the

Supreme Court has stated that “the plain meaning of the phrase ‘in concert’ signifies

mutual agreement in a common plan or enterprise” sufficient to constitute a

conspiracy. Rutledge v. United States, 517 U.S. 292, 300 (1996). We agree with our

sister circuits that the Supreme Court’s construction of 21 U.S.C. § 848 informs our

reading of § 2252A(g). See United States v. Grovo, Nos. 15-30016, 15-30027, 2016

WL 3443691, at *4 (9th Cir. Jun. 23, 2016); United States v. Daniels, 653 F.3d 399,

413 (6th Cir. 2011); United States v. Wayerski, 624 F.3d 1342, 1351 (11th Cir. 2010). 

It follows from Rutledge’s holding that to act “in concert with” requires the same

mens rea as a conspiracy charge. Grovo, 2016 WL 3443691, at *4. 

In this case, however, we do not see sufficient evidence that DeFoggi

committed the predicate offenses of accessing child pornography “in concert with”

anyone else – even assuming for purposes of analysis that “in concert with” means

no more than an agreement. For each predicate count, the jury was presented with

4

While DeFoggi argues, as others before him have done, that the statute

4

requires each individual predicate felony to be committed “in concert with” three

other persons, we agree with the Ninth and Sixth Circuits that “the more natural

reading of § 2252A(g) is that ‘the required total of three other persons may be tallied

by considering the predicate counts together.’” Grovo, 2016 WL 3443691, at *5

(quoting Daniels, 653 F.3d at 412). 

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screenshots of other members’ profiles and the images DeFoggi clicked on that were

uploaded to the profiles. But we do not understand how the single act of accessing

an image with the intent to view it by clicking on it alone from behind one’s computer

screen can be done “in concert with” anyone else – at least not on the facts presented

here. The government argues that DeFoggi entered a “conspiracy” with three or more

other people “to commit the offense of accessing with intent to view child

pornography.” But even assuming without deciding that the CEE offense requires 5

a conspiracy and nothing more, the evidence was insufficient here. Conspiracy

requires an agreement to accomplish the specific illegal objective at issue – here,

accessing child pornography. The evidence showed that many people voluntarily

joined PedoBook in part to access child pornography. But that does not necessarily

mean that DeFoggi, when he accessed child pornography on the specific occasions

charged in the predicate counts 4–7, agreed to do so with anyone else. And the trial

record is bereft of evidence of any such agreement in this case. Even if we further

assume that participants in the enterprise need not act simultaneously, see id. at *5,

the government failed to offer evidence that DeFoggi acted in concert with anyone

concerning the underlying elements of the offense of accessing with intent to view

child pornography as charged in Counts 4–7. 

We note that this argument appears to overlook the statutory requirement that 5

a person charged with engaging in a CEE must commit three offenses, not simply

agree to commit them, in order to be convicted. See 18 U.S.C. § 2252A(g). 

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Like several of the defendants in the cases analyzed by our sister circuits,6

DeFoggi participated in interactive features ofthe child pornography website at issue,

such as private messaging between members. Yet that conduct is separate and apart

from the offenses that constituted the underlying predicates necessary to sustain the

child exploitation enterprise offense, i.e., accessing with intent to view child

pornography. Whether or not DeFoggi’s other PedoBook-related activities were

proscribed by other statutes, the government failed to prove that DeFoggi was guilty

of violation 18 U.S.C. § 2252A(g) as the offense was charged in this case. 

2. Counts 4–7

DeFoggi also argues that no reasonable jury could have concluded beyond a

reasonable doubt that he “intentionally” accessed PedoBook to view child

pornography as charged in Counts 4–7. This is because, he asserts, (1) the

government failed to provide any direct evidence that he was the person who was

using the computer to view PedoBook, (2) even if he did access PedoBook, he did so

because he used the Tor network for work, not so that he could view child

pornography, and (3) his chats did not show an intent to access or solicit child

pornography because they were “mere fantasy.”7

See, e.g., Grovo, 2016 WL 3443691, at *6 (“Both defendants posted hundreds

6

of times, . . . gained admission to the upper level of the . . . board after being admitted

and elevated through a vouching process, . . . [and] repeatedly accessed and

distributed child pornography.”); Wayerski, 624 F.3d at 1348 (defendants participated

in a sophisticated group, communicated with each other, limited its membership, and

“made specific requests for and purchased the production of new illicit material”).

DeFoggi also makesthese assertions in support of his argument that there was 7

insufficient evidence to convict himon Count 1. Given our ruling above, we consider

them only as to Counts 4–7. 

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As previously discussed, evidence tied DeFoggi to the online username and

display name “fuckchrist” and “Ptasseater” on the PedoBook website. The FBI’s

investigation into those usernames through open source database searches,

administrative subpoenas to DeFoggi’s internet service providers, and cooperation

with foreign law enforcement revealed that the usernames belonged to DeFoggi. 

There was Tor traffic associated with those identities occurring at his residence in the

early morning hours on the PedoBook website. In private chats on PedoBook,

DeFoggi disclosed identifying information such as his geographic location and the

times when he frequented PedoBook and other child pornography websites. His inperson meeting with another person under investigation established that his name was

Tim and let the FBI know DeFoggi had a domestic partner who was unaware of his

interests (information that eventually helped the FBI determine who at DeFoggi’s

address was accessing child pornography). DeFoggi had extensive knowledge of the

Tor network, and PedoBook could not be discovered and accessed without it. The

jury was reasonable in concluding that DeFoggi was accessing PedoBook. 

Moreover, it was reasonable for the jury to conclude that DeFoggi accessed

PedoBook with the intent to view child pornography. The fantasy chat messages on

PedoBook revealed “copious amounts of discussion concerning the exchange of child

pornography with other users.” Manning, 738 F.3d at 945. DeFoggi disclosed

identifying details about himself “in the context of discussing the exchange of child

pornography with others.” Id. DeFoggi argues that those chats were “mere fantasy”

and not indicative ofsolicitation or of a step toward obtaining child pornography. He

argues that the chats are therefore “speech protected under the First Amendment.” 

However, the solicitation of child pornography can be proscribed without First

Amendment concerns where a “statute penalizes speech that accompanies or seeks

to induce a transfer of child pornography – via reproduction or physical delivery –

from one person to another.” United States v. Williams, 553 U.S. 285, 294 (2008).

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“[O]ffers to provide or requests to obtain child pornography are categorically

excluded from the First Amendment.” Id. at 299. DeFoggi asked other members of

PedoBook where he could find certain videos and whether they had or could produce

images for him. He then provided his email address to those other members. Such

solicitations were not just “speech protected under the First Amendment,” as DeFoggi

argues. Rather, the evidence presented at trial was sufficient to prove that he

intended to access child pornography. 

Additional evidence also showed that DeFoggi was accessing PedoBook and

illustrated his specific intent to access child pornography in doing so. For instance,

when the FBI executed the search warrant at DeFoggi’s residence, he had to be

forcibly separated from his laptop, which was actively downloading a child

pornography video. The laptop contained evidence of the username “fuckchrist” and

a Yahoo Messenger profile for “PTasseater69.” In addition, the Tor browser bundle

was found on the laptop with evidence of browsing activities on multiple child

pornography sites, including PedoBook. Images of child pornography were also

located on the computer. DeFoggi’s actions in attempting to maintain anonymity by

creating usernames, registering as a member of the website, creating a profile page,

selecting or accepting other members as “friends,” joining various subcategory

groups, requesting orsoliciting child pornography fromother members, as well asthe

contents of his laptop when he was apprehended are more than enough to support a

jury finding of intent. 

The jury was free to accept or reject DeFoggi’s theory that someone else had

used his computer or that he had accessed PedoBook for professional reasons. See

United States v. Henley, 766 F.3d 893, 905 (8th Cir. 2014) (“In reviewing a challenge

to the sufficiency of the evidence . . . ‘a jury’s credibility determinations are virtually

unreviewable.’” (quoting United States v. Perez, 663 F.3d 387, 391 (8th Cir. 2011))). 

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He does no more than restate that argument here. Upon the evidence presented, we

find that a reasonable jury could conclude beyond a reasonable doubt that DeFoggi

accessed PedoBook and other websites with the intent to view child pornography.

The offense of accessing child pornography also requires an “interstate

commerce” nexus. DeFoggi alleges that there is no evidence that the computer disk 8

or other material containing visual depictions of child pornography were transported

in interstate commerce because “[t]he interstate nexus must be established prior to the

user’s access.” “The Internet is an instrumentality and channel of interstate

commerce.” United States v. Havlik, 710 F.3d 818, 824 (8th Cir. 2013) (citing

United States v. Trotter, 478 F.3d 918, 921 (8th Cir. 2007)). DeFoggi’s use of the

internet to access and download images and videos from PedoBook is enough in this

case to satisfy the interstate commerce nexus. Even if it were not, the content of

PedoBook was uploaded by the website’s global users. The server that hosted the

data that comprised the PedoBook website waslocated in Nebraska. A user accessing

the website and its content from Maryland would be accessing data that was stored

on and had traveled from a server located in Nebraska. A reasonable trier of fact

therefore could find that DeFoggi accessed the website with the intent to view child

18 U.S.C. § 2252(a)(5)(B) criminalizes a person who:

8

knowingly possesses, or knowingly accesses with intent to view, any

book, magazine, periodical, film, videotape, computer disk, or any other

material that contains an image of child pornography that has been

mailed, or shipped or transported using any means or facility of

interstate or foreign commerce or in or affecting interstate or foreign

commerce by any means, including by computer, or that was produced

using materials that have been mailed, or shipped or transported in or

affecting interstate or foreign commerce by any means, including by

computer . . . .

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pornography that had been transported using a means or facility of interstate

commerce. See id. 9

E. Jury Instructions10

DeFoggi challengesInstruction 37, which begins with the sentence “You have

heard evidence that the defendant committed offenses involving child pornography

that were not charged in the Indictment.” DeFoggi argues that the sentence should

have read: “You have heard evidence that the defendant committed similar acts in the

past that were not charged in the Indictment.” But DeFoggi himself requested an

instruction that included the language he now objectsto, and his objection istherefore

waived. See United States v. Davis, 2016 WL 3457264, at *3 (8th Cir. Jun. 24, 2016)

(“When a party expressly agrees to an instruction, the doctrine of invited error

applies, and any objection to the instruction is waived.” (citations omitted)). Even

if this issue were properly before us, DeFoggi fails to offer any argument as to why

the objected-to language is erroneous. See United States v. Byrd, 542 F.2d 1026,

1029 (8th Cir. 1976) (citing United States v. Phillips, 522 F.2d 388, 391 (8th Cir.

1975)); see also Ahlberg v. Chrysler Corp., 481 F.3d 630, 634 (8th Cir. 2007)

(holding points not meaningfully argued in opening brief are waived); United States

DeFoggi alleged that because the evidence was insufficient the district court

9

abused its discretion in denying his motion for a new trial. As discussed in our

analysis of DeFoggi’s challenge to the sufficiency of the evidence, the evidence

adequately supported the jury’s verdict on all but DeFoggi’s conviction for a child

exploitation enterprise.

DeFoggi asserts various errors in the jury instructions as they relate to Count

10

1, including the definition of the phrase “in concert with.” He also reasserts other

objections to the instructions as they relate to Count 1. Given our ruling above, we

need not address these arguments.

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v. Cruz-Zuniga, 571 F.3d 721, 725 (8th Cir. 2009) (“The district court has wide

discretion in formulating instructions.” (quoting United States v. Long, 977 F.2d

1264, 1272 (8th Cir. 1992))). DeFoggi also renews his objection regarding a venue

instruction, but offers no argument as to why or how the district court erred, so this

objection is likewise waived. See Ahlberg, 481 F.3d at 634. 

III. Conclusion

Because DeFoggi wasimproperly convicted of engaging in a child exploitation

enterprise, we vacate his conviction and remand for resentencing. We affirm the

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judgments in all other respects. 

______________________________

DeFoggi contends that the 20-year mandatory minimum sentence for a child

11

exploitation enterprise is a violation of the Eighth Amendment’s ban on cruel and

unusual punishment. As we vacate his conviction on that count, we need not address

DeFoggi’s Eighth Amendment challenge. 

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