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To the dismay of defense counsel and at least one judge on the 2nd U.S. Circuit Court of Appeals, the full court will not rehear en banc two cases involving the Fourth Amendment and anti-child pornography searches. The circuit’s active judges voted last week to let stand two controversial decisions upholding the search of the homes and seizure of two men convicted in the Eastern District of New York as part of a nationwide effort to apprehend traders in child pornography. The cases are United States v. Martin, 04-1600-cr, and United States v. Coreas, 03-1790-cr, decided within weeks of each other in August. In Martin, a divided court upheld the conviction of Joseph Martin, whose home was searched by authorities after it was learned that he visited a Yahoo e-Group called “girls12-16,” which advertised itself in a welcome message that “This is the place to be if you love 11 to 16 year olds,” and promised a secure location to trade thoughts, or photographs, on the topic. A majority of Chief Judge John M. Walker Jr. and Richard Wesley found that although the affidavit supporting the search of the Martin home was incorrect in some respects, the search was nonetheless supported by probable cause. Judge Rosemary Pooler dissented, saying the decision effectively criminalized the decision to visit the site, gutted the Fourth Amendment requirement of individualized suspicion that a crime has been committed, and raised serious concerns under the First Amendment. Pooler had company two weeks later when the Coreas panel, in a decision written by Southern District Judge Jed Rakoff, decried the Martin ruling but said it felt “constrained” to uphold the search of the Coreas home, and the seizure of 100 images of child pornography, by the ruling in Martin. The two cases had in common a generalized, or model, affidavit from a veteran FBI special agent who had been tracking child pornographers in an investigation that included something called “Operation Candyman,” after the so-called Candyman child pornography e-Group. The generalized affidavit, which described the habits and techniques of adults who collect or trade child pornography online, was grafted onto, or used in, a series of applications for search warrants in individual cases. The problem with the affidavit was that it represented that those people who joined such e-Groups as the “Candyman” group, which advertised itself as a group “for People who love kids,” automatically received e-mails containing child pornography. Courts have split on the import of the error, dividing over whether it should invalidate the entire search warrant in individual cases or whether probable cause could still be found to exist once the offending portions were excised. In the Martin case, the majority found that, even with the incorrect information removed from the search warrant application, the warrant was still supported by probable cause. EN BANC DENIED It is unusual for judges in the 2nd Circuit to issue a written opinion discussing their reasons for voting for or against rehearing en banc. Accompanying Friday’s decision in which the circuit declined to hear the cases en banc, were one concurring and one dissenting opinion from two original members of the Martin panel. But Wesley issued a concurring opinion in the in banc ruling in which he stressed that Martin “affirmatively joined” the “girls12-16″ e-Group, the welcome message of which he said “clearly announced its predominantly illegal purpose…” “The explicitness of the welcome message belies any suggestion that a reasonable viewer would not realize that the ‘girls12-16′ e-Group was a forum for illegal and constitutionally-unprotected activity including downloading child pornography and receiving child pornography via e-mail…” he said before running the entire text of the welcome message. Pooler wrote a dissent to the en banc ruling in which she said, “I would not dissent after being on the losing side of an in banc poll if I did not believe that the decision in Martin sets a perilous and plainly wrong precedent.” “The alarming principle for which Martin stands (and which Coreas follows by constraint) is that the government may rely on a weak association with an organization involved in both legal and illegal activity to find probable cause to search an individual’s home,” Pooler said. Then Pooler, after cautioning “the residents of New York, Connecticut, and Vermont to be careful which Web sites they visit because a few clicks of a mouse could subject their homes to search,” came right out and urged defense counsel to petition the U.S. Supreme Court to take their case. One defense attorney did not need that suggestion. Herald Price Fahringer of Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, who helped represent Coreas, said “I don’t think I have ever seen a case where a member of the circuit said we should seek certiorari and feels that strongly about it.” Fahringer said he was “stunned,” that the circuit elected not to rehear the cases en banc. The First Amendment implications, he said, taken together with the unique Fourth and First Amendment challenges posed by Internet technology and the fact that judges in both the 2nd Circuit and other jurisdictions have been sharply divided over whether the faulty affidavit should have been grounds for dismissing Operation Candyman prosecutions, make the cases ideal for review by the U.S. Supreme Court. Steven Jay Harfenist of Freidman, Harfenist, Langer & Kraut in Lake Success, N.Y., represented Martin. Coreas was also represented by Richard B. Schwartz of Schwartz & Grodofsky in Mineola, N.Y. Eastern District Assistant U.S. Attorneys Bonnie S. Klapper and Cecil C. Scott represented the government on the Martin appeal. Scott and Assistant U.S. Attorney James E. Tatum represented the government on the Coreas appeal.

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