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What one lawyer described as a “stark” division has emerged among judges in the 2nd U.S. Circuit Court of Appeals over the constitutionality of search warrants used in the roundup of dozens of men nationwide in an anti-child pornography sweep. For the second time in two weeks, a panel of the circuit tackled the issue of a flawed affidavit submitted by a lead child porn investigator. The affidavit was used as the template for affidavits submitted by other agents to support search warrants under the initiative called “Operation Candyman.” The affidavit, submitted by Special Agent Geoffrey Binney, was wrong in at least one critical respect — it stated that those who joined the so-called e-mail groups such as “Candyman e-group,” self-advertised as a group “for People who love kids,” automatically receive e-mails containing child pornography. In fact, subscribers to the group via Web site can elect not to receive any automatic e-mails or accompanying visual files. Last week, a divided panel in United States v. Martin, 04-1600-cr found that even if the false statements were removed from an affidavit used to search the computer of a defendant who went from the Candyman e-group to a related group called “girls12-16,” law enforcement officials still had probable cause. The ruling, by a majority of Chief Judge John M. Walker Jr. and Judge Richard Wesley, was decried by Judge Rosemary Pooler in dissent, who called it a “dangerous precedent” that ignored the Fourth Amendment’s requirement of individualized suspicion for a finding of probable cause in obtaining a search warrant. On Aug. 18, a second panel confronted the same issue in United States v. Coreas, 03-1790. This time there was no dissent, as all three members of the panel -� 2nd Circuit Judges Dennis Jacobs and Guido Calabresi, and Southern District Judge Jed Rakoff — agreed the affidavit used to obtain a warrant for defendant Willie Coreas, an affidavit based in part on information from Agent Binney, was fatally flawed. But the judges in Coreas had a problem — the Coreas case came after, not before, the Martin decision. And they were bound by the decision of the earlier circuit panel to have ruled on the issue. After noting that the search warrant for Coreas’ home was based on an affidavit “whose central allegations were knowingly or recklessly false,” Rakoff wrote, “while this panel would have found the remaining allegations (once the false information was removed) were insufficient to support probable cause, we are bound by a recent decision of another (divided) panel that holds otherwise.” The split of opinion among judges in the circuit sets the stage for a possible rehearing en banc in which all active judges on the court would resolve the issue, said Coreas’ attorney, Herald Price Fahringer of Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria. “This is a very, very dramatic division in the circuit,” Fahringer said. “It couldn’t be more stark. We are extremely optimistic that a petition for a rehearing en banc will receive serious attention.”

FLAWED AFFIDAVIT The Coreas panel was troubled by several aspects of the affidavit used to search the Coreas home and that of 23 others, including information that was not specific to Coreas, such as a section headed “Child Pornography Collector Characteristics,” which details an analysis by the FBI’s “Behavior Analysis Unit” about “common traits and characteristics” of people who collect child pornography. “The warrant application made clear, however, that the purpose of such ‘collector’ allegations was simply to show that, even if the evidence to search any member’s home dated back to February 2001 (when Binney completed his investigation) or earlier, by the time warrants were sought months later it still would be reasonable to expect to find evidence of crime,” Judge Rakoff said. “The Government’s papers submitted in support of the warrant nowhere argued that the ‘collector’ allegations could support an inference that any individual member of Candyman had downloaded child pornography.” One hundred computerized images involving child pornography were seized from Coreas’ home. However, Rakoff said, by the time Correas was indicted in March, 2002, “the Government already had information that raised serious doubts about Binney’s representations.” “In particular, on January 18, 2002, Yahoo sent the FBI a breakdown of the e-mail delivery options selected by Candyman subscribers,” Rakoff said. “This data showed that, during the period investigated by Binney, more than 85 percent of the Candyman members elected to receive no automatic e-mails whatsoever.” And to make matters worse, Rakoff said, “it was not until July 3, 2002 that the Government disclosed to Coreas’ counsel,” that the affidavit was flawed. Eastern District Judge Leonard Wexler refused to suppress the material in the Coreas case (as he had ruled in the Martin case) because “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.” But other judges, including Eastern District of Missouri Judge Catherine D. Perry, concluded that the false information was recklessly included in the affidavit. Perry granted the motion to suppress in United States v. Strauser, 247 F. Supp 2d 1135 (2003). And within a day of the Strauser ruling, Southern District Judge Denny Chin reached the same conclusion in United States v. Perez, 247 F.Supp. 459. The split among district judges is now mirrored in the 2nd Circuit, although the Martin opinion holds sway absent a change after rehearing en banc. ‘MARTIN’ MAJORITY The Martin court was convinced that the information in the affidavit provided more than enough for a finding of probable cause, including “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.” Judge Walker in Martin went out of his way to answer Judge Pooler’s dissent by saying the decision “does not grant the government an unchecked license to search citizens’ homes simply because they are members of an offensive or disreputable group. 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.” The Coreas court could not have disagreed more. The Martin majority, Judge Rakoff said, not only “effectively dispenses” with the requirement that probable cause be backed, in part, with “evidence particularized to the target of the search …” It also, he said, “substitutes for it the rule that if you simply web-join an e-group whose ‘primary’ purpose is the unlawful distribution of pornography, that is enough to warrant the search of your home — even if there is no evidence that you knew this was the group’s ‘primary’ purpose or that you actually intended to use the group for such a purpose rather than for the other, lawful purposes that it also provided.” Erica Dubno of Lipsitz Green and Richard B. Schwartz of Schwartz & Grodofsky in Mineola, Pa., also represented Coreas. Assistant U.S. Attorneys Demetri Jones and Emily Berger represented the government.

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