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Defenders Of The Accused
Matthew Radefeld & Dan Juengel
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New York Times Article on Strauser


Judge Discards F.B.I. Evidence In Internet Case Of Child Smut

Published: March 7, 2003

A federal judge in Manhattan has thrown out the government’s evidence in an internet child pornography case involving a Bronx man, in a ruling that could imperil scores of related prosecutions around the country.

The judge, Denny Chin of Federal District Court, ruled that the FBI agents who had prepared a crucial affidavit had ”acted with reckless disregard for the truth.” The ruling, dated Wednesday, was released yesterday, the same day that a federal judge in St. Louis, Catherine D. Perry, ordered evidence suppressed in a related case. Judge Perry, too, cited false statements in the affidavit.

The FBI affidavit claimed that anyone who had signed up to join the internet group at the center of the investigation automatically received child pornography from other members through an email list.

This claim was used to obtain search warrants for the homes and computers of people who had joined the group, known as Candyman. The bureau later conceded that people who had signed up for the group — which also included chat sites, surveys and file sharing — could opt out of the mailing list and did not automatically receive pornography.

As a result, Judge Chin ruled, investigators would not have been justified in searching the home and computer of the Bronx man, Harvey Perez, who had signed up for the Candyman group but did not send or receive email messages containing images.

”In the context of this case, a finding of probable cause would not be reasonable,” Judge Chin wrote. Most subscribers to the group — part of a larger site known as eGroups — elected to receive no email, Judge Chin said. The eGroups site, which was acquired by Yahoo, and the Candyman group are no longer in operation.

Operation Candyman was announced with great fanfare a year ago by Attorney General John Ashcroft.

Thus far, more than 1,800 people have been investigated, and more than 100 arrested, an FBI spokeswoman said. There have been around 60 convictions, many as a result of guilty pleas, she added. Some defendants have admitted to molesting children, officials have said.

A Justice Department spokeswoman, Casey Stavropoulos, said yesterday that the two court rulings were being reviewed. ”The department remains committed,” she said, ”to vigorously investigating and prosecuting the purveyors and distributors of child pornography.”

Defense lawyers in the cases praised the rulings. Nicole Armenta, who represents Mr. Perez, said: ”The fact that someone visited a website, and you don’t know if they did anything wrong, can’t be a reason to go into their home and seize their computer.”

Daniel A. Juengel, a lawyer for Gregory Strauser, the defendant in the St. Louis case, called the rulings ”a major victory for the Fourth Amendment,” that protects against illegal searches and seizures. Mr. Juengel said he believed the decisions would significantly change how the Justice Department handled search warrants involving internet crime, and how judges looked at affidavits in such cases.

The FBI spokeswoman had no comment on the rulings, or on the agents’ actions, and said that the agents would also have no comment. One agent, Geoffrey Binney, has left the FBI, and did not return a message left at his office seeking comment.

It could not be learned yesterday how many Candyman prosecutions have relied on the affidavit in question, but it appears that there could be many challenges.

Judge Chin noted that 700 copies of a draft version of the affidavit were sent to FBI offices around the country for use in the investigation. In New York, federal prosecutors in Manhattan and Brooklyn announced last July that 10 people, including Mr. Perez, were being charged in the Candyman investigation.

Without the false statement in the affidavit, Judge Chin said, all that remained was the allegation that Mr. Perez had subscribed to a website where unlawful images of child pornography could be downloaded.

”If the government is correct in its position that membership in the Candyman group alone was sufficient to support a finding of probable cause, then probable cause existed to intrude into the homes” of several thousand people, merely because their email addresses were entered into the website, Judge Chin wrote.

”Here, the intrusion is potentially enormous,” the judge added. ”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 email address into a website from a computer located in the confines of their own homes.”