United States v. Strauser


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FBI'S FLAWED AFFIDAVITS CLOUD INTERNET PORN CASES

  • Peter Shinkle Of The Post-Dispatch
  • St. Louis Post-Dispatch (MO)
  • July 25, 2002
  • Section: NEWS
  • Edition: FIVE STAR LIFT
  • Page A1

When the FBI unveiled its "Candyman" child pornography investigation in March, the agency trumpeted the arrests of 89 people nationwide who it said had swapped pornographic images through e-mails and other means.


But now the government's high-profile Internet attack on child porn has come under fire.

In a move that could have repercussions nationwide, a St. Louis defense attorney has discovered that the FBI submitted false information to various federal judges when it obtained search warrants in the Candyman investigation.

Lawyer Daniel Juengel of Clayton wants a judge to throw out evidence authorities gathered while searching the home of his client, Gregory L. Strauser of St. Louis.

And federal prosecutors and other defense attorneys around the country are taking notice.

This month, the U.S. Department of Justice sent out form letters to defense attorneys nationwide acknowledging "an apparent factual inaccuracy" in the FBI affidavits. But the Justice Department said in its three-page letter that while it is "concerned" about the inaccuracy, "it does not believe it either invalidates the search warrant or gives rise to a basis for suppression of evidence seized under the warrant."

Assistant U.S. Attorney Carrie Costantin, who is prosecuting Strauser, acknowledged in a court hearing last week that in seeking judicial approval for search warrants earlier this year, the FBI incorrectly told judges in affidavits that all Candyman group members automatically received e-mails distributed by the group.

But she said that the FBI provided the information "in good faith" and that the evidence seized in the search of Strauser's house should remain in the case.

Throwing out the evidence or, in legal parlance, suppressing it, would be a blow to the government's case against Strauser, 51. The issue is pending before U.S. Magistrate Judge Audrey Fleissig, a former U.S. attorney.

An FBI agent testified that the search of Strauser's home Jan. 17 turned up thousands of images of child porn on a computer, though none was directly linked to the Candyman group.

Juengel's discovery is having a ripple effect among Candyman cases, as attorneys for other defendants say they may use it in a bid to suppress evidence.

The Rev. John P. Hess, the pastor of a Florissant church who pleaded guilty in a Candyman case in May, is considering whether to withdraw his guilty plea, said his attorney, Richard Sindel.

Paul Mewis, attorney for Candyman defendant Christopher Tinney of Katy, Texas, said Juengel's discovery has "created havoc" in the Justice Department. Mewis said the federal government agreed to let Tinney plead to a considerably reduced charge last Friday, dropping two of three counts against him.

Mewis said he is certain that prosecutors agreed to the deal because the FBI error has weakened their case. But Assistant U.S. Attorney Michael Wynne, who prosecuted the cases in Houston, denied that the government's case had been weakened and denied that there was any link between the plea agreements and the problems with the FBI affidavits.

Yahoo! says some chose no-mail option

In its affidavits seeking permission to conduct searches, the FBI told judges that every e-mail sent to the Candyman group on its Web site on Yahoo.com was distributed to every member automatically.

"Therefore, when an individual transmitted child pornography to the Candyman group via e-mail, those images were transmitted to every one of the group members," the warrants said, according to the Justice Department's letter.

But after Strauser's home was searched and he was charged, Juengel made his own inquiry into what information Yahoo! had about how Candyman operated. Juengel spoke with Cathy McGoff, a compliance manager at Yahoo's headquarters in Sunnyvale, Calif., who he said told him that members of Candyman could choose to receive no e-mails from the group.

Last week, Fleissig held a hearing on Strauser's motion to suppress the seized evidence. In the hearing, McGoff testified that many members of the Candyman group in fact exercised their option not to receive e-mail from the group.

She pointed to a Yahoo! document showing that of 3,213 members of the group, 2,740 members had selected the "no mail" option at the time Yahoo! shut the group down in February 2001.

In fact, as of the shut-down date, Yahoo's records show that Strauser was one of the people whose "delivery option" was set not to receive e-mail, McGoff testified. What's more, Yahoo! has no records that Strauser ever received e-mails from the Candyman group, McGoff testified.

Juengel says the error by the FBI was made in "reckless disregard of the truth," and that without the false assertion by the FBI, a judge would have found there was no probable cause to issue the search warrant. Because the U.S. Constitution requires a judge to find probable cause before issuing a search warrant, Juengel says the evidence seized from his client's home in January must be thrown out.

But Costantin, the prosecutor, says that even without the incorrect assertion, there was probable cause to issue the warrant.

Juengel has a tough argument to make, says William Stuntz, a professor of criminal law at Harvard University Law School. Stuntz said a defendant seeking to throw out evidence in such a case must prove more than the FBI was simply negligent.

"The defendant must show some degree of dishonesty, not just carelessness," he said. "The government loses very rarely in cases of this sort."

After attorneys in the case file more briefs, Fleissig is expected to make a recommendation on the matter to U.S. District Judge Catherine Perry, before whom trial of the case is set to begin Sept. 9.

Meanwhile, the Candyman investigation continues to expand. FBI spokeswoman Angela Bell said this week that the agency has conducted 512 searches in the child pornography investigation, almost twice the 266 searches it had conducted by March. The number of people charged has reached 120.

Bell said the FBI has conducted no searches using warrants since learning of the incorrect information in the affidavits in May.

EX-FBI AGENT CONCEDES ERRORS IN APPLICATIONS FOR CHILD PORN SEARCH WARRANTS

  • Tim Bryant Of The Post-Dispatch
  • St. Louis Post-Dispatch (MO)
  • February 15, 2003
  • Section: NEWS
  • Edition: FIVE STAR LATE LIFT
  • Page 7

A former FBI agent who had a key role in unraveling the child pornography ring known as "Candyman" admitted Friday in testimony at St. Louis that he erred in an affidavit used to obtain search warrants nationwide.

Geoffrey Binney, who has since left the FBI, insisted that it was an innocent mistake making no difference to the case.

That will be up to U.S. District Judge Catherine D. Perry, who heard evidence but will rule later.

A lawyer for Gregory Strauser is asking that files retrieved from Strauser's computer be excluded from evidence used in prosecuting him on charges of knowingly possessing child pornography and using a computer service to send obscene material across state lines.

Strauser, 51, of Mehlville, pleaded guilty earlier. But Perry allowed him to withdraw the plea while she considers the validity of the search warrant.

The same search warrant problem was at issue Feb. 3 when another federal judge in St. Louis let the Rev. John P. Hess, a Roman Catholic priest accused in the Candyman investigation, withdraw his plea to a charge of possessing child pornography and plead instead to a lesser charge of possession of obscene materials.

A ruling in Strauser's favor could lead to objections by other Candyman defendants. Federal prosecutors charged about 120 people nationwide in 2001; many already have pleaded guilty.

Under questioning by defense lawyer Daniel Juengel, Binney conceded he was wrong when he said in a search warrant application that "Candyman" members automatically got e-mails redistributed by the group's site on Yahoo.com. The former agent said he did not notice the option to turn off e-mails, and did not become aware of it until Yahoo provided additional information after a judge had issued the warrants.

That information included e-mail logs that showed Binney had visited an Internet page that included the option to turn off automatic e-mails.

It is considered important because knowing that Candyman members could opt out might have made judges less likely to find probable cause that their computers contained illegal material.

Binney denied suggestions that he had doubts about the way he investigated the case or that he pursued it to get a promotion. He now works with a Houston law firm.

Federal prosecutors insist that the error is not enough to throw out evidence against Strauser. In August, U.S. Magistrate Judge Audrey Fleissig agreed. Juengel then took his protest up the judicial ladder.

He argued Friday that Binney was intentionally or recklessly wrong in material used to seek the warrant for Strauser's computer in January 2002. The FBI said it was found to contain thousands of images of child pornography.

Last summer, the Justice Department sent letters to defense attorneys acknowledging Binney's mistake.

Juengel alleged the FBI failed to investigate the several ways in which it was possible to stop receiving e-mail from the site, which Strauser had done by the time Yahoo shut it down.

JUDGE REJECTS EVIDENCE KEY TO CHILD PORN CASE

  • Peter Shinkle Of The Post-Dispatch
  • The Associated Press And Tim Bryant
  • Of The Post-Dispatch Contributed To This Report
  • St. Louis Post-Dispatch (MO)
  • March 7, 2003
  • Section: NEWS
  • Edition: FIVE STAR LATE LIFT
  • Page A1

A federal judge in St. Louis said Thursday that the FBI recklessly used false information to get search warrants seeking child pornography on home computers, and she tossed out key evidence in what once seemed an easy case.

The ruling by District Judge Catherine Perry matched a federal court decision in New York made public Thursday. If upheld on appeal, the orders would remove key evidence in the national "Candyman" investigation that snared more than 100 suspects.

The development here means that thousands of child pornography pictures found on compact discs seized from the home of Gregory Strauser, 52, of St. Louis County, cannot be used against him in court.

Without them, the case fails and Strauser will have to be found not guilty, said Dan Juengel, his lawyer.

"If they can't use the child pornography, there's no case," Juengel said.

The lawyer had argued in court that the FBI's use of false information on a search warrant affidavit was intentional, or at best reckless, and that therefore the seizure violated the constitutional protection against unreasonable searches.

"I think it's a huge victory for the Fourth Amendment," Juengel said.

U.S. District Judge Denny Chin in New York suppressed evidence in another Candyman case after also concluding that the FBI recklessly used false information for the search warrant.

Raymond Gruender, the U.S. attorney in St. Louis, said he was deciding whether to appeal. New York prosecutors said the same.

Gruender declined to comment on the national impact but pointed out that all four other Candyman defendants in St. Louis have been convicted and sentenced. He said he did not expect the ruling to reopen those cases.

Last month, the Rev. John Hess, a Roman Catholic priest from Florissant, used the issue to negotiate a lesser sentence after the FBI used a search warrant to seize a computer holding child pornography images from his church.

At that time, his attorney predicted a broad impact nationwide.

Judge Perry ruled that Agent Geoffrey Binney of Houston, who has since left the FBI, "was reckless because he had obvious reasons to doubt the accuracy of the information he provided."

Binney had incorrectly said in material used repeatedly for warrants that all subscribers of the Candyman child pornography Internet site automatically received its pictures.

Perry noted in her ruling that information from Yahoo, which hosted the site before shutting it down in February 2001, showed that Binney subscribed by visiting an Internet page that gave subscribers an option not to receive the e-mails.

Defense lawyers have argued that the false information made it appear more likely that the subscribers had received child porn, and thus made judges more likely to sign off on the search warrants sought by the FBI.

Perry said that under Supreme Court precedents, she could suppress the warrants without finding that Binney intentionally used false information.

No material seized with a faulty warrant can be used as evidence in court.

Perry said the logic behind the warrants was like "saying if someone subscribes to a drug legalization organization or newsletter, then there is probable cause to believe that person possesses drugs."

Judge Chin, in New York, wrote, "Just as there is no higher standard of probable cause when First Amendment values are implicated . . . there is no lower standard when the crimes are repugnant and the suspects frustratingly difficult to detect."

The FBI has arrested 117 people and won 63 convictions so far.

"The Department of Justice is reviewing the courts' decisions issued in connection with Operation Candyman," spokeswoman Casey Stavropoulos said Thursday. "The department remains committed to investigating and prosecuting the purveyors and distributors of child pornography."

She said she did not know how many defendants nationwide had challenged the warrants.

Binney discovered the Candyman site on Jan. 2, 2001, and subscribed the same day. Over the next month, he received 105 e-mails containing child pornography that were automatically redistributed from the site, he has testified.

In Strauser's case, a St. Louis FBI agent filed an application for a search warrant in January 2002 that said, "Every e-mail sent to the group was distributed to every member automatically." That was false.

In fact, by the time the Web site was shut down, Strauser had selected the option not to receive the e-mails, a Yahoo employee testified in a hearing last year.

When the FBI searched Strauser's home in the 5700 block of Huntington Valley Court on Jan. 17, 2002, agents discovered a compact disc with a file on it named "Candyman."

Agent Ann Pancoast testified in a hearing last year that when she asked Strauser how much child pornography he had, he told her, "Thousands of images."

Last September, Strauser pleaded guilty to a child pornography count and admitted that the FBI had found child porn. But he also reserved the right to appeal on the issue of whether the search was constitutional. He subsequently withdrew the plea.

Juengel, his lawyer, said the episode might redefine the rules of obtaining search warrants for home computer contents.

"Based on you sitting at your computer, clicking on a button, does that give the government the right to search your house?" he said. "That is the main issue the judge had to wrestle with."

Judge Chin's order made a similar point. It said, in part, "Thousands of individuals would be subject to search, their homes invaded and their property seized, in one fell swoop, even though their only activity consisted of entering an e-mail address into a Web site from a computer located in the confines of their own homes."

PROSECUTORS DISMISS CHARGES HERE IN CHILD PORNOGRAPHY CASE

  • Peter Shinkle Of The Post-Dispatch
  • St. Louis Post-Dispatch (MO)
  • April 19, 2003
  • Section: NEWS
  • Edition: FIVE STAR LATE LIFT
  • Page 17

* Evidence had been thrown out in misstep by FBI.

Conceding defeat in a case racked by an FBI misstep, prosecutors dismissed charges Friday against Gregory L. Strauser of St. Louis County, who at one time had admitted possessing child pornography.

The Justice Department also dismissed a New York child pornography case that faced the same problem - findings that an FBI agent used false information to obtain a search warrant.

Last month, federal trial judges in St. Louis and New York threw out evidence in both cases. Prosecutors filed appeals but then dropped them Friday.

U.S. Attorney Ray Gruender of St. Louis said the appeal had "little chance to succeed." He added, "And without the evidence being admissible, there was no chance of succeeding in the prosecution."

Strauser, 52, pleaded guilty in September, admitting that he possessed numerous images of child pornography on CDs seized from his home by the FBI in January 2002.

But he later withdrew the plea and challenged the evidence. His attorney, Dan Juengel, said Friday, "Obviously, we're very pleased with the outcome of the case."

An FBI agent in Houston, Geoffrey Binney, said in an affidavit for search warrants used in a number of cases that every subscriber to the Candyman site on the Internet automatically received e-mails of child pornography redistributed by the site.

That was false, as subscribers could turn off that feature, prosecutors later conceded. It turned out that Strauser had it off at the time Yahoo! shut down the site in 2001.

Juengel said the FBI's biggest problem was testimony by Binney in a hearing in St. Louis that, as far as he could recall, he enrolled via an e-mail, not the Web site with the shutoff option. Several months later, Yahoo! provided data showing that Binney in fact had subscribed through the Candyman Web site.

Prosecutors contended that Binney acted in good faith. But Juengel said that the contradiction in his testimony showed recklessness and that the mistake made judges more likely to presume that subscribers received child porn, and thus more likely to authorize search warrants.

U.S. District Judge Catherine Perry dismissed the evidence on a finding that Binney was reckless, but she did not accept Juengel's claim that the lapse was deliberate.

Binney has since left the FBI and practices law. He could not be reached for comment.

Justice Department spokeswoman Casey Stavropoulos did not return calls seeking a comment. The agency recently said it had arrested 117 Candyman defendants and obtained 63 convictions.

In February, the Rev. John Hess, a Roman Catholic priest from Florissant, used the same issue to negotiate a lesser sentence after the FBI used a search warrant to seize a computer from his church containing child pornography images.