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Misstatements in a supporting affidavit used to justify the search of a defendant’s computer do not doom the man’s conviction for possessing child pornography, the 2nd U.S. Circuit Court of Appeals has ruled. By a two-to-one majority, Chief Judge John M. Walker Jr. and Judge Richard Wesley upheld the guilty plea of defendant Joseph Martin, one of hundreds of defendants arrested nationwide as part of a federal anti-child pornography effort known as Operation Candyman. The judges found that “even without the false statements,” the affidavit in United States v. Martin, 04-1600-cr, established probable cause for the search of Martin’s computer. The ruling drew a strong dissent from Judge Rosemary Pooler, who said the affidavit was fatally flawed and the majority was announcing a “dangerous precedent” under the Fourth Amendment. At issue in the case, and in dozens like it throughout the country, is the generalized affidavit submitted by FBI Agent Geoffrey S. Binney in the Operation Candyman cases. The affidavit, based on Binney’s experience working undercover in investigating child-pornography e-mail groups on the Internet, was taken by agents around the country and used as the template for search warrant affidavits tailored to each suspect. The initial e-mail group investigated was the “Candyman” group, but the investigation ultimately expanded to include e-mail groups called “girls12-16″ and “shangri_la.” Binney’s affidavit incorrectly stated that each new member to an e-group was automatically added to an e-mail list and “automatically received every e-mail message and other file transmitted to the Candyman E-Group by any other Candyman E-Group member.” “It was later revealed that this statement was not universally true,” Judge Walker wrote. “Those who registered by e-mail were automatically added to the e-mail list, but those who registered in the Candyman website could opt out of this feature.” During the investigation, agents learned that some participants in the Candyman e-group were also exchanging information about the “girls12-16″ and “shangri_la,” groups, both of which also focused on child pornography and both of which shared features with the original Candyman group. After it was determined that someone using the e-mail address who resided at Martin’s house was on the “girls12-16″ membership list, FBI agents obtained a search warrant for the home. The FBI seized hundreds of images and video clips of child pornography from Martin’s computer. After he was indicted in June 2002, Martin received two letters from the government in which it acknowledged errors in Binney’s generalized affidavit. Martin moved to suppress the evidence seized from his computer as the fruits of an illegal search unsupported by probable cause. Eastern District Judge Leonard Wexler denied the motion, finding that the affidavit “contains extensive background information regarding subscribers to groups such as the Candyman group and the proclivity of members to use such groups to collect, trade and retain images of child pornography.” “With the exception of the false statement regarding automatic e-mail receipt, all statements regarding the group and the (undercover) agent’s receipt of numerous images of child pornography are truthful,” Wexler said. STRIKING A BALANCE Judges Walker and Wesley agreed. “The corrected affidavit provided the magistrate judge with facts sufficient for her to conclude that the overriding, if not the sole, purpose of the ‘girls12-16′ e-group was illicit � that an e-mail address of a girls12-16 member was linked to Martin’s house; that collectors of child pornography overwhelmingly use the Internet and computers to distribute and hoard this illegal pornographic material; and that, given the totality of the circumstances and common sense � that evidence of a crime would be found in Martin’s home because membership in the e-group reasonably implied use of the website,” Walker wrote. He said the court’s conclusion strikes the appropriate balance between the latitude that law enforcement officers need to conduct criminal investigations and the U.S. Constitution’s guarantees of freedom of association and protection against unlawful searches. “It does not grant the government an unchecked license to search citizens’ homes simply because they are members of an offensive or disreputable group,” Walker said. “Rather, it recognizes that, depending on the totality of the evidence proffered in the affidavit, a substantial likelihood of criminal activity may exist if an individual is a member of an Internet e-group whose purpose is unlawful.” Martin had contended that there were legal uses for the site, but Walker said the defendant offered “no evidence to support that claim,” such as arguing that the e-group was a forum for debating the legalization of child pornography. “The concern that a person who innocently joins an organization with a mixed purpose might be subjected to an unnecessary and unconstitutional search is not present here because the girls12-16 e-group and its technological features served primarily as a means for effecting illegal activity,” Walker said. “At its core, the modus operandi of the girls12-16 website was criminal, and that is determinative in this case.” In her dissent, Pooler said, “Agent’s Binney’s false statements provided the only basis for the inference that there was a fair probability that all E-group subscribers would possess illegal visual depictions.” The corrected affidavit in the case did not support the majority’s finding that the “overriding purpose of the E-group was dedicated to illegal activity,” she said, or that the E-group was “wholly or mostly dedicated to the trading of illegal VISUAL depictions.” Pooler emphasized that the statute, 18 U.S.C. �2252A, punished visual, but not “text-based,” activities. As “undoubtedly distasteful” as the e-group’s “welcome message” was, she said, the e-group clearly had other functions beside the trading of visual images. The vast majority of the 193 e-mails that Binney received from the girls12-16 group were text-based, she said, so “it is purely speculative for the majority to infer that the overriding purpose of the E-Group was to trade illegal visual depictions.” Pooler said the majority was ignoring the Fourth Amendment’s requirement of individualized suspicion for a finding of probable cause in obtaining a search warrant. “[T]he majority would find probable cause where a concerned parent, seeking to understand potential threats to his children, subscribed to one of these E-Groups and neglected to go through the process of removing his e-mail address from the list of subscribers until two weeks later,” she said. Stephen Jay Harfenist of Friedman, Harfenist, Langer & Kraut in Lake Success, N.Y., represented Martin. Assistant U.S. Attorneys Bonnie S. Klapper and Cecil C. Scott represented the government.

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