In United
States v. Apple MacPro Computer, 851 F.3d 238 (3rd Circuit 2017), the Court of Appeals heard
arguments in a case that concerned
the Government's ability to compel the decryption of
digital devices when the Government seizes those devices pursuant to a valid
search warrant. The District Court found Appellant John Doe in civil contempt
for refusing to comply with an order issued pursuant to the All Writs Act, 28 U.S.C. § 1651, which required him to produce several
seized devices in a fully unencrypted state. Doe contends that the court
did not have subject matter jurisdiction to issue the order and that the order
itself violates his Fifth Amendment privilege against self-incrimination.
851 F.3d at 241.
The opinion goes on to explain how, and why, the case arose:
During an investigation into Doe's access to child
pornography over the internet, the Delaware County Criminal Investigations Unit
executed a valid search warrant at Doe's residence. During the search, officers
seized an Apple iPhone 5S and an Apple Mac Pro Computer with two attached
Western Digital External Hard Drives, all of which had been protected with
encryption software. Police
subsequently seized a password-protected Apple iPhone 6 Plus as well.
Agents from the Department of Homeland Security then
applied for a federal search warrant to examine the seized devices. Doe
voluntarily provided the password for the Apple iPhone 5S, but refused to
provide the passwords to decrypt the Apple Mac Pro computer or the external
hard drives. Despite Doe's refusal, forensic analysts discovered the
password to decrypt the Mac Pro Computer, but could not decrypt the external
hard drives. Forensic examination of the Mac Pro revealed an image of a
pubescent girl in a sexually provocative position and logs showing that the Mac
Pro had been used to visit sites with titles common in child exploitation, such
as `toddler_cp,’ `olicam,’ `tor-childporn,’ and `pthc.’ (App. 39.) The
Forensic examination also disclosed that Doe had downloaded thousands of files
known by their `hash’ values to be child pornography. The files, however, were
not on the Mac Pro, but instead had been stored on the encrypted external hard
drives. Accordingly, the files themselves could not be accessed.
As part of their investigation, the Delaware County
law enforcement officers also interviewed Doe's sister, who had lived with Doe
during 2015. She related that Doe had shown her hundreds of images of child
pornography on the encrypted external hard drives. She told the
investigators that the external hard drives included `videos of children
who were nude and engaged in sex acts with other children.’ (App. 40.) Doe
provided the password to access the iPhone 6 Plus, but did not grant access to
an application on the phone which contained additional encrypted information.
Forensic analysts concluded that the phone's encrypted database contained
approximately 2,015 image and video files.
851 F.3d at 242-243.
The Court of Appeals goes on to explain that
[o]n August 3, 2015, upon application of the
Government, a Magistrate Judge issued an order pursuant to the All Writs Act
requiring Doe to produce his iPhone 6 Plus, his Mac Pro computer, and his two
attached external hard drives in a fully unencrypted state (the `Decryption
Order'). Doe did not appeal the Decryption Order. Instead, he filed with the
Magistrate Judge a motion to quash the Government's application to compel
decryption, arguing that his act of decrypting the devices would violate his
Fifth Amendment privilege against self-incrimination.
On August 27, 2015, the Magistrate Judge denied
Doe's Motion to Quash and directed Doe to fully comply with the Decryption
Order (the `Quashal Denial'). The Magistrate Judge acknowledged Doe's Fifth
Amendment objection but held that, because the Government possessed Doe's
devices and knew that their contents included child pornography, the act of
decrypting the devices would not be testimonial for purposes of the Fifth
Amendment privilege against self-incrimination. The Quashal Denial stated that
a failure to file timely objections could result in the waiver of appellate
rights. Doe did not file any objections to the Quashal Denial and did not seek
review by way of appeal, writ of mandamus, or otherwise.
Id. at
243.
The opinion then explains what happened after the Quashal Denial:
Approximately one week after the Quashal Denial, Doe
and his counsel appeared at the Delaware County Police Department for the
forensic examination of his devices. Doe produced the Apple iPhone 6 Plus,
including the files on the secret application, in a fully unencrypted state by
entering three separate passwords on the device. The phone contained adult
pornography, a video of Doe's four-year-old niece in which she was wearing only
her underwear, and approximately twenty photographs which focused on the
genitals of Doe's six-year-old niece. Doe, however, stated that he could not
remember the passwords necessary to decrypt the hard drives and entered several
incorrect passwords during the forensic examination. The Government remains
unable to view the decrypted content of the hard drives without his assistance.
Following the forensic examination, the Magistrate
Judge granted the Government's Motion for Order to Show Cause Why Doe ShouldNot Be Held in Contempt, finding that Doe willfully disobeyed and resisted the
Decryption Order. Based on the evidence presented at the hearing, the
Magistrate Judge found that Doe remembered the passwords needed to decrypt the
hard drives but chose not to reveal them because of the devices' contents. The
Magistrate Judge ordered Doe to appear before the District Court to show cause
as to why he should not be held in civil contempt.
On September 30, 2015, after a hearing, the District
Court granted the Government's motion to hold Doe in civil contempt. On October
5, 2015, the District Court issued a `Supplemental Order to articulate the
reasons for its September 30th Order.’ (App. at 12.) The District Court noted
that the Government's prima facie case of contempt was largely, if not
entirely, uncontested. While the Government presented several witnesses to
support its motion, Doe neither testified nor called witnesses. He offered no
physical or documentary evidence into the record and provided no
explanation for his failure to comply with the Decryption Order. The District
Court remanded Doe to the custody of the United States Marshals to be
incarcerated until he fully complies with the Decryption Order. This timely
appeal followed.
Id. at 243 -244.
The Court of Appeals began its analysis of the issues in the case by
explaining that
[w]e have appellate jurisdiction under 28 U.S.C. § 1291. We ordinarily exercise plenary review over the District Court's
authority to issue an order pursuant to the All Writs Act, Grider v.
Keystone Health Plan Cent., Inc., 500 F.3d 322, 327 (3d Cir. 2007), and `review
a district court's decision on a motion for contempt for abuse of discretion.’ Marshak
v. Treadwell, 595 F.3d 478, 485 (3d Cir. 2009). However, when the party
seeking review has failed to preserve the issue in the trial court, we review
only for plain error. See Brightwell
v. Lehman, 637 F.3d 187, 193 (3d Cir. 2011); Nara v. Frank,
488 F.3d 187, 194 (3d Cir. 2007). We nonetheless exercise plenary review over
challenges concerning subject matter jurisdiction. United States v.
Merlino, 785 F.3d 79, 82 (3d Cir. 2015).
Id. at 244.
The court then explained that Doe made
two primary arguments as to why he should not be
held in contempt. First, he asserts that the District Court lacked subject matter jurisdiction to issue the Decryption Order under the All Writs Act.
Thus, he argues that he is not in contempt of any valid order and the judgment
of contempt must be vacated. Second, Doe contends that the Decryption Order
violates his Fifth Amendment privilege against self-incrimination.
Id. The Court of Appeals
addressed Doe’s arguments in this order.
It began by explaining that his
first challenge concerns the All Writs Act, which
permits federal courts to `issue all writs necessary or appropriate in aid of
their respective jurisdictions and agreeable to the usages and principles of
law.’ 28 U.S.C. § 1651(a). The All Writs Act does not itself confer any
subject matter jurisdiction, but rather only allows a federal court to issue
writs `in aid of’ its existing jurisdiction. Clinton v. Goldsmith,
526 U.S. 529, 534, 119 S.Ct. 1538, 143 L.Ed.2d 720 (1999); Syngenta
Crop Prot., Inc. v. Henson, 537 U.S. 28, 31, 123 S.Ct. 366, 154 L.Ed.2d 368
(2002); see also In re Arunachalam, 812 F.3d 290, 292 (3d Cir.
2016) (per curiam). Therefore, a court has subject matter jurisdiction
over an application for an All Writs Act order only when it has subject matter
jurisdiction over the underlying order that the All Writs Act order is intended
to effectuate. Additionally, a federal court may only issue an All Writs Act
order `as may be necessary or appropriate to effectuate and prevent the
frustration of orders it has previously issued in its exercise of jurisdiction
otherwise obtained.’ United States v. N.Y. Tel. Co., 434 U.S. 159,
172, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977).
Id. at 244.
The court then began its analysis of Doe’s All Writs Act argument,
explaining, initially, that
Doe contends that the Magistrate Judge did not have
subject matter jurisdiction to issue the Decryption Order because the
Government should have compelled his compliance by means of
the grand jury procedure and not the All Writs Act.
The grand jury process, however, is not the exclusive means by which
the Government may collect evidence prior to indictment. See Zurcher v.
Stanford Daily, 436 U.S. 547, 559, 98 S.Ct. 1970, 56 L.Ed.2d 525
(1978) (allowing the Government to proceed by search warrant despite
insistence that the investigation should proceed by subpoena); United
States v. Educ. Dev. Network Corp., 884 F.2d 737, 743 (3d Cir. 1989) (rejecting the argument that the Government could not obtain
evidence by means of a search warrant and must proceed solely
by grand jury). Here, the Magistrate Judge had subject matter
jurisdiction under Federal Rule of Criminal Procedure 41 to issue a
search warrant and therefore had jurisdiction to issue an order under the
All Writs Act that sought `to effectuate and prevent the frustration’ of that
warrant. United States v. N.Y. Tel. Co., 434 U.S. 159, 172, 98S.Ct. 364, 54 L.Ed.2d 376 (1977).
Id. at 244-245.
The Court of Appeals then took up Doe’s claim that the Magistrate Judge
did not have subject matter jurisdiction to issue
the Decryption Order because the Government should have compelled his
compliance by means of the grand jury procedure and not the All Writs Act.
The grand jury process, however, is not the exclusive means by which
the Government may collect evidence prior to indictment. See Zurcher
v. Stanford Daily, 436 U.S. 547, 559, 98 S.Ct. 1970, 56 L.Ed.2d 525(1978) (allowing the Government to proceed by search warrant despite
insistence that the investigation should proceed by subpoena); United
States v. Educ. Dev. Network Corp., 884 F.2d 737, 743 (3d Cir.
1989) (rejecting the argument that the Government could not obtain
evidence by means of a search warrant and must proceed solely
by grand jury). Here, the Magistrate Judge had subject matter
jurisdiction under Federal Rule of Criminal Procedure 41 to issue a
search warrant and therefore
had jurisdiction to issue an order under the All Writs Act that sought `to
effectuate and prevent the frustration’ of that warrant. United States
v. N.Y. Tel. Co., 434 U.S. 159, 172, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977).
In arguing that the Magistrate Judge did not have
subject matter jurisdiction to issue the Decryption Order, Doe also challenges
the merits of that order, contending that it was not a `necessary and
appropriate means’ of effectuating the original warrant as required by the
Supreme Court in New York Telephone. A contempt proceeding,
however, generally `”does not open to reconsideration the legal or factual
basis of the order alleged to have been disobeyed.”’ United States v.Rylander, 460 U.S. 752, 756, 103 S.Ct. 1548, 75 L.Ed.2d 521(1983) (quoting Maggio v. Zeitz, 333 U.S. 56, 69, 68 S.Ct.
401, 92 L.Ed. 476 (1948)); In re Contemporary Apparel, Inc., 488
F.2d 794, 798 (3d Cir. 1973) (same). Furthermore, Doe did not argue in the
District Court that the Decryption Order was not an appropriate exercise of
authority under the All Writs Act. Thus, even if the propriety of the
Decryption Order was before us, our review would be limited to plain
error. Brightwell, 637 F.3d at 193. Under this framework, an appellant
must show four elements: `(1) there is an “error”; (2) the error is “clear or
obvious, rather than subject to reasonable dispute”; (3) the error “affected
the appellant's substantial rights, which in the ordinary case means' it ”‘affected
the outcome of the district court proceedings”'; and (4) ‘the error seriously
affect[s] the fairness, integrity or public reputation of judicial
proceedings.’ ” United States v. Marcus, 560 U.S. 258, 262, 130
S.Ct. 2159, 176 L.Ed.2d 1012 (2010) (quoting Puckett v. United
States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009)).
Id. at 244-245.
The Court of Appeals therefore held that
[h]ere, the Magistrate Judge issued a search warrant
for the devices seized at Doe's residence. When law enforcement could not
decrypt the contents of those devices, and Doe refused to comply, the
Magistrate Judge issued the Decryption Order pursuant to the All Writs Act. The
Decryption Order required Doe to `assist the Government in the execution of the
. . . search warrant’ by producing his devices in `a fully unencrypted state.’
As was the case in New York Telephone, the Decryption Order here
was a necessary and appropriate means of effectuating the original search
warrant.
Id.
The court then took up Doe’s Fifth Amendment argument, explaining,
initially, that
the Decryption Order violates his Fifth Amendment
privilege against self-incrimination and that this challenge is subject to
plenary review. Doe raised a Fifth Amendment challenge in his Motion to Quash
the Decryption Order. The Magistrate Judge denied that challenge, rejecting the
argument that Doe's Fifth Amendment privilege would be violated. Doe did not
file objections to that order, nor did he seek review by way of appeal, writ of mandamus or otherwise, despite the Quashal Denial order informing Doe that
failure to file a timely objection may constitute a waiver of appellate rights.
Doe also did not renew this self-incrimination claim during the contempt
proceedings before the Magistrate Judge and the District Judge. Instead,
Doe only reasserted his Fifth Amendment claim in this appeal.
Id. at 246.
The Court of Appeals
began its analysis of Doe’s Fifth Amendment argument by explaining that
[w]hile
Doe persists that his challenge to the contempt order entitles him to plenary
consideration of the Fifth Amendment issue, we disagree. As noted above, it is
generally the case that `a contempt proceeding does not open to reconsideration
the legal or factual basis of the order alleged to have been disobeyed.’ Rylander,
460 U.S. at 756, 103 S.Ct. 1548 (internal quotation marks and citation
omitted).
Even
if we could assess the Fifth Amendment decision of the Magistrate Judge, our
review would be limited to plain error. See United States
v. Chaney, 446 F.2d 571, 576 (3d Cir. 1971) (applying
plain error review to unpreserved claim of violation of privilege against
self-incrimination). Doe's arguments fail under this deferential standard of
review.
Id.
at 246-257.
The court went on to
explain why Doe’s Fifth Amendment argument also failed. See id. at 247 -249.
Among other things,
it pointed out that
[d]espite
Doe's argument to the contrary, the Eleventh Circuit's reasoning in In
re Grand Jury Subpoena does not compel a similar result here. In the
Quashal Denial, the Magistrate Judge found that, though the Fifth Amendment may
be implicated by Doe's decryption of the devices, any testimonial aspects of
that production were a foregone conclusion. According to the Magistrate
Judge, the affidavit supporting the application for the search warrant
established that (1) the Government had custody of the devices; (2) prior to
the seizure, Doe possessed, accessed, and owned all devices; and (3) there are
images on the electronic devices that constitute child pornography. Thus, the
Magistrate Judge concluded that the Decryption Order did not violate Doe's
Fifth Amendment privilege against self-incrimination.
Id. at 248.
The Court of Appeals
therefore affirmed “the District Court's order of September 30, 2015 holding
Appellant John Doe in civil contempt.” Id.
at 249.
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