18-3284

United States v. Safford

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 

2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. 

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS 

COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN 

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). 

A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT 

ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 28th day of May, two thousand twenty.

PRESENT: DENNIS JACOBS,

RICHARD J. SULLIVAN,

Circuit Judges,

JESSE M. FURMAN,

District Judge.

∗

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UNITED STATES OF AMERICA,

Appellee,

v. No. 18-3284-cr

KEVIN A. SAFFORD,

Defendant-Appellant.

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∗ Judge Jesse M. Furman of the United States District Court for the Southern District of 

New York, sitting by designation. 
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FOR APPELLANT: JAMES P. EGAN, Assistant Federal 

Public Defender, for Lisa A. Peebles, 

Federal Public Defender, Syracuse, 

NY.

FOR APPELLEE: CARINA H. SCHOENBERGER, 

Assistant United States Attorney 

(Michael S. Barnett, Assistant United 

States Attorney, on the brief), for Grant 

C. Jaquith, United States Attorney for 

the Northern District of New York, 

Syracuse, NY.

Appeal from a judgment of the United States District Court for the Northern

District of New York (Mae Avila D’Agostino, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the district court is 

AFFIRMED. 

Defendant Kevin A. Safford appeals from a judgment of conviction 

following his conditional guilty plea to one count of possession of child 

pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A), and three 

counts of accessing with intent to view child pornography in violation of 18 U.S.C. 

§§ 2252A(a)(5)(B) and 2252A(b)(2), for which he was sentenced to 24 months’ 

imprisonment and 20 years’ supervised release. Safford challenges the district 

court’s denial of his pretrial motion to suppress a warrant that deployed a search 
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program called the Network Investigative Technique (the “NIT warrant”), which

was used to obtain Safford’s identity. Safford also argues that the district court 

erred in denying his motion to dismiss the indictment, which he contends was

obtained through outrageous government conduct, and he challenges two special 

conditions of his supervised release. We assume the parties’ familiarity with the 

underlying facts, procedural history of the case, and the issues on appeal, which 

we note only to the extent necessary to explain our decision.

I. Motion to Suppress the NIT Warrant

“On appeal from a district court’s ruling on a motion to suppress, we review 

the court’s factual findings for clear error.” United States v. Raymonda, 780 F.3d 105, 

113 (2d Cir. 2015). “We review the court’s legal determinations, including . . . the 

good faith of officers relying on a search warrant, de novo.” Id. We find Safford’s 

challenge largely foreclosed by this Court’s opinion in United States v. Eldred, 933 

F.3d 110 (2d Cir. 2019), which addressed the exact warrant at issue here and 

concluded that suppression was not required. 

As in Eldred, even if we were to assume for the sake of argument that the 

warrant violated the Fourth Amendment, we would “ultimately conclude that . . . 

the good-faith exception applies.” Id. at 115. Under this exception to the 
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exclusionary rule, evidence may be admitted if, in abiding by and executing a 

warrant, the agents acted with an objectively reasonable, good-faith belief that 

their conduct was lawful. United States v. Leon, 468 U.S. 897, 922 (1984). The

exception does not apply, however, where the officer has no reasonable grounds 

to believe the warrant was properly issued. Id. at 923. The Eldred court squarely 

rejected several of the arguments Safford raises for why the exception does not 

apply here: namely, that the government acted deliberately, recklessly, or with 

gross negligence in seeking the warrant; that the warrant was so facially deficient 

that officers could not reasonably presume it to be valid; and that the warrant was 

void ab initio, rendering the good faith exception unavailable. See Eldred, 933 F.3d 

at 119–21. As to those arguments, Eldred controls, and we find them unpersuasive 

for the same reasons stated in that opinion. 

Safford fares no better with his argument that the good faith exception does 

not apply because the warrant was so deficient of probable cause that no 

reasonable officer could have relied on it. Showing such deficiency “is a very 

difficult threshold to meet.” United States v. Falso, 544 F.3d 110, 128 n.24 (2d Cir. 

2008). Far from being bare-bones, the application and affidavit here detailed

several objective facts supporting the existence of probable cause to believe that 
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anyone who logged into Playpen did so intending to view or trade child 

pornography. These included the “description of the images and text of Playpen’s 

homepage, the warnings regarding a user’s anonymity when a user registered an 

account, the nature of the Tor network” – which made it unlikely a user would 

come across Playpen without understanding its purpose or content – “and the 

content of the site.” App’x at 179–80; see United States v. Allen, 782 F. App’x 21 (2d 

Cir. 2019) (finding probable cause to support the NIT warrant). On these facts, we 

cannot say that the warrant was “so lacking in indicia of probable cause” that an 

officer would have “no reasonable grounds” to believe the warrant was properly 

issued. Leon, 468 U.S. at 923 (internal quotation marks omitted).

Relatedly, we reject Safford’s contention that material misrepresentations in 

the application warranted a Franks hearing. Even assuming that law enforcement 

acted deliberately, the alleged misstatements Safford points to – that by the time 

the warrant issued, Playpen’s logo had changed so it no longer matched with the 

affidavit’s description and that the application misstated the extent to which 

Playpen was accessible through the traditional internet – would not have negated 

a finding of probable cause. See Allen, 782 F. App’x at 23 (noting that despite the 

new logo, “Playpen’s major defining characteristics” described in the affidavit and 
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“additional indicia supporting probable cause” remained the same (internal 

quotation marks omitted)). 

Safford advances another argument on the changed logo, which also lacks 

merit. He claims that the NIT warrant was an anticipatory warrant triggered when 

a visitor logged into the website “as described in the warrant application.” 

Safford’s Br. at 53. According to Safford, after the logo changed, the triggering 

event was rendered impossible, because the website no longer appeared as 

described. We find the government has the better argument and that the 

description of the images was provided as one factor in support of probable cause, 

not to identify the triggering event, which occurred upon logging into the site as 

identified by its URL. See Government’s Br. at 29–30.

II. Motion to Dismiss the Indictment 

We review de novo a district court’s ruling on a motion to dismiss an 

indictment alleging outrageous government conduct. See United States v. Williams, 

372 F.3d 96, 112 (2d Cir. 2004). “To establish a due process violation . . . a defendant 

must show that the government’s conduct is ‘so outrageous that common notions 

of fairness and decency would be offended were judicial processes invoked to 

obtain a conviction.’” United States v. Al Kassar, 660 F.3d 108, 121 (2d Cir. 2011)
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(citation omitted). The defendant’s burden is “very heavy.” Id. (internal quotation 

marks omitted). As the district court noted, “it appears that all courts that have 

considered the same due process challenge based on the NIT warrant have 

declined to dismiss the indictments in those cases.” App’x at 172 (quoting United 

States v. Kim, No. 16-cr-191 (PKC), 2017 WL 394498, at *4 (E.D.N.Y. Jan. 27, 2017) 

(collecting cases)). 

Despite those unfavorable precedents, Safford contends that the 

government’s administration of Playpen amounts to outrageous conduct because 

it violated the rights of third parties, the victims of child pornography. However, 

the government – which did not create Playpen or encourage Safford to visit it –

did not “actually cause[] the defendant to commit a crime that would otherwise 

have not been committed,” which is “[a] necessary prerequisite for demonstrating 

that an undercover investigation violated the rights of third parties.” United States 

v. Chin, 934 F.2d 393, 400 (2d Cir. 1991). And even if, as Safford argues, the 

government conceivably could have further mitigated harm caused by the 

website, we do not find that the conduct “shock[s] the conscience,” particularly in 

light of the “well-established deference” we owe to law enforcement. Al Kassar, 

660 F.3d at 121 (internal quotation marks omitted).
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III. Conditions of Supervised Release 

Safford finally challenges two special conditions of his supervised release. 

The first restricts Safford from “go[ing] to, or remain[ing] at” places where 

children under 18 “are likely to be,” absent permission from his probation officer. 

App’x at 253. The other prohibits him from “go[ing] to, or remain[ing] at, a place 

for the primary purpose of observing or contacting children under the age of 18.” 

Id. Ordinarily, we review the imposition of a supervised release condition for 

abuse of discretion; however, because Safford did not object to the conditions at 

sentencing, we review his challenge for plain error. United States v. Dupes, 513 F.3d 

338, 342–43 (2d Cir. 2008).

A district court “may impose special conditions of supervised release that 

are reasonably related to certain statutory factors governing sentencing, involve 

no greater deprivation of liberty than is reasonably necessary to implement the 

statutory purposes of sentencing, and are consistent with pertinent Sentencing 

Commission policy statements.” United States v. Myers, 426 F.3d 117, 123–24 (2d 

Cir. 2005) (brackets and internal quotation marks omitted). The court did not err, 

plainly or otherwise, in imposing either condition, both of which are reasonably 

related to the statutory factors including the nature of the offense, Safford’s 
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history, and the need for “adequate deterrence” and “to protect the public from 

further crimes of the defendant.” 18 U.S.C. § 3553(a). Further, the record supports

the district court’s stated reasons for limiting Safford’s access to minors. See, e.g., 

App’x at 237–40 (district court noting the “hard core” nature of images found on 

Safford’s computer, Safford’s “addiction to pornography,” and its concern that 

Safford would view criminal pornography when “people aren’t watching”). 

The conditions are also not more restrictive than reasonably necessary. We

disagree with Safford that the restriction on his going to places where children are 

“likely to be” renders the condition overly broad. In this context, we read that 

restriction as referring to places where children are “likely to congregate.” Just as 

“’congregate’ suggests some gathering of more than one, the use of the plural 

‘children’ in the [challenged] condition . . . imports the same meaning.” 

Government’s Br. at 47–48; see United States v. MacMillen, 544 F.3d 71, 75 (2d Cir. 

2008) (using the phrases interchangeably in explaining that the list of places 

following the phrase “likely to congregate” was “merely illustrative of . . . where 

children are likely to be”). Read in this way, the condition is akin to those we have 

upheld as “reasonably necessary” in similar circumstances. As to the other 

condition, we reject Safford’s claim that the phrase “primary purpose” is 
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unconstitutionally vague. Persons of ordinary intelligence are capable of

understanding that having the “primary” purpose of observing children differs 

from engaging in activities where observation is merely incidental or accidental. 

Moreover, supervised release conditions are generally “read to exclude 

inadvertent violations.” United States v. Johnson, 446 F.3d 272, 281 (2d Cir. 2006). 

We therefore uphold the condition. See United States v. Olsen, No. 19-1104-cr, 2020 

WL 1514742, at *2 (2d Cir. Mar. 30, 2020).

We have considered the rest of Safford’s arguments and conclude that they 

are without merit. Accordingly, we AFFIRM the judgment of the district court. 

FOR THE COURT: 

Catherine O=Hagan Wolfe, Clerk of Court