U.S. v. Martin

Decision Date04 August 2005
Docket Number04-1600 CR(L),04-2344 CR(CON).
Citation426 F.3d 68
PartiesUNITED STATES of America, Appellee, v. Joseph MARTIN, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

Steven Jay Harfenist, Friedman, Harfenist, Langer & Kraut, Lake Success, NY, for Defendant-Appellant.

Bonnie S. Klapper, Assistant United States Attorney (Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Cecil C. Scott, Assistant United States Attorney, on the brief), Brooklyn, NY, for Appellee.

Before: WALKER, Chief Judge, POOLER and WESLEY, Circuit Judges.

Judge POOLER dissents in a separate opinion.

JOHN M. WALKER, JR., Chief Judge.

Defendant-appellant Joseph Martin appeals from the March 19, 2004, amended judgment of the United States District Court for the Eastern District of New York (Leonard D. Wexler, Judge), convicting him, after his guilty plea, of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), and sentencing him principally to a term of imprisonment of twenty-seven months. On this appeal, Martin challenges the district court's May 15, 2003, memorandum and order denying his motion to suppress evidence seized from his home pursuant to a search warrant.

The search arose out of "Operation Candyman," an extensive government investigation of persons suspected of collecting and distributing child pornography over the internet. Most of the searches conducted in Operation Candyman were pursuant to warrants supported by affidavits, each of which recounted the same investigative findings by the same FBI agent but contained additional facts specific to the particular search. Subsequent to the issuance of the warrant in this case, the supporting affidavit was determined to contain misstatements about general investigative facts. Like many defendants in these Candyman cases, Martin moved to suppress the fruits of the search. Because the affidavit, even without these false statements, supports a finding of probable cause, we affirm the district court's denial of the suppression motion.

Martin, however, was sentenced under the mandatory Guidelines regime existing prior to United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We, therefore, remand the case to the district court for further proceedings consistent with Booker and United States v. Crosby, 397 F.3d 103 (2d Cir.2005).

BACKGROUND
I. The Supporting Affidavit

The Martin affidavit covered the search of different premises and contained facts pertaining to three separate child-pornography e-groups:1 "Candyman," as well as "girls12-16" and "shangri_la." The portions relevant to Martin's home, and this appeal, alleged that an individual residing there was only a member of girls12-16. But the affidavit incorporated the following description of the Candyman e-group and its features into its general discussion of the girls12-16 e-group.

A. Operation Candyman

In January 2001, FBI Special Agent Geoffrey S. Binney joined the Candyman e-group in an undercover capacity. The Candyman webpage announced the following to anyone considering joining:

This group is for People who love kids. You can post any type of messages you like too [sic] or any type of pics or vids you like too [sic]. P.S. IF WE ALL WORK TOGETHER WE WILL HAVE THE BEST GROUP ON THE NET.

In order to use the full website, an individual was required to become a member of the e-group.

Special Agent Binney's affidavit went on to assert that members had access to a number of features on the website: (1) a "Files" section allowed users to post images and video clips for other members to access and download; (2) a "Polls" section "allowed Candyman E-group members to answer survey questions, such as `what age group do you prefer?'"; (3) a "Links" section permitted members "to post URLs for other web sites containing similar content"; (4) a "Chat" section enabled members "to engage in real time chat conversations with each other"; (5) an e-mail list, to which all new members were automatically2 added, circulated messages and files when they were sent to the e-group; and (6) a "Messages" area stored all the messages and files transmitted to the group so that members could review them later. See generally United States v. Froman, 355 F.3d 882, 884-85 (5th Cir.2004) (describing features of Candyman website).

In the "Files" section, Special Agent Binney found and downloaded approximately 100 pictures and movies of child pornography and so-called child erotica. From January 2, 2001, when Binney joined the Candyman e-group, until February 6, 2001, when the e-group was shut down, he received nearly 500 e-mails, to which were attached roughly 300 files containing child pornography or child erotica.

After the warrant authorizing the search of Martin's home was issued, misstatements were discovered in the standard provisions of the affidavit. The affidavit declared that every new member was automatically added to an e-mail list and thereafter "automatically received every e-mail message and other file transmitted to the Candyman E-group by any Candyman E-group member." It was later revealed that this statement was not universally true. Those who registered by e-mail were automatically added to the e-mail list, but those who registered on the Candyman website could opt out of this feature.

B. Girls12-16 E-group

During the course of the Candyman investigation, the FBI also observed that some Candyman members had begun to exchange information about two new e-groups: "girls12-16" and "shangri_la," both of which also focused on child pornography. The girls12-16 e-group — central to Martin's appeal — included the following welcome message:

Hi all, This group is for all those ho [sic] appreciate the young female in here [sic] finest form. Watching her develop and grow is like poetry in motion [sic], to an age where she takes an interest in the joys and pleasures of sex. There is probably nothing more stimulating than watching a young teen girl discover the pleasures of the orgasm. The joy of feeling like she is actually coming into womanhood. It's an age where they have no preconditions about anything, just pure opennes [sic]. What a joy to be a part of that wonderful experience and to watch the development of this perfect form. This is the place to be if you love 11 to 16 yr olds. You can share experiences with others, share your views and opinions quite freely without censorship. You can share all kinds of other information as well regarding — your current model: if you are a photographer. Where the best place to meet gitls [sic] is. The difficulties you experience in your quest. The best way to chat up. Good places to pick girls up. Girls you would like to share with others. The choice is all yours. Welcome home! Post videos and photographs . . . and how about your true life experiences with them so that other viewers can paint a mental picture and in [sic] some ways share the experience with you. You could connect with others from the same country as you and get together sociall [sic] if you wish. The choice is all yours. How about a model resource for photographers? It's all up to you and is only limited by your own imaginations. Membership is open to anyone, but you will need to post something. Mybe [sic] a little bit about yourself/what your interests are (specifically), your age, location . . . and a pic or vid would be a good to [sic]. By doing this other members (or potential members) with the same interest may then contact you if you wish them to.

The shangri_la e-group welcome message simply announced, "Hardcore Only." These two e-groups had "many of the same features as the Candyman E-group,"3 and they also offered membership lists setting forth each member's Yahoo! user identification, his truncated e-mail address, and the date each member joined the group.

The girls12-16 membership list included a member whose email address (Joeym@optonline.net) was ultimately found to be associated with an individual living at Martin's house. The affidavit did not allege that Joeym@optonline.net was additionally a member of the Candyman, but, as noted, the discussion of girls12-16 depended upon the description of the Candyman's features.

Between February 2, 2001, and February 15, 2001, while Special Agent Binney was an undercover member of girls12-16, he received 193 e-mails, of which fourteen contained pictures of child pornography and seventy-seven contained images of child erotica.

C. Child-Pornography Collector Computer Use and Characteristics

The affidavit also included an extensive discussion, based on the experiences of Special Agent Binney, of the way individuals who collect and produce child pornography use computers and the internet to access, acquire, and disseminate this material. It further detailed the characteristics of child-pornography collectors, drawn from the extensive experience of a special agent in the FBI's Behavioral Analysis Unit. This section emphasized that collectors tend to maintain their illicit collections and that they rarely, if ever, destroy them.

II. Procedural History

On the basis of the affidavit, the magistrate judge issued a warrant authorizing the search of, inter alia, Martin's residence. The FBI executed the warrant and seized Martin's computer, on which hundreds of images and video clips of child pornography and child erotica were found.

Martin's indictment for violation of the federal child-pornography laws was handed up in June 2002 and unsealed a month later. In August and then in December 2002, the government wrote two letters to Martin that revealed the affidavit's misstatements about automatic e-mail delivery. As a result of the disclosure of the false statements in a separate case, United States v. Strauser, 247 F.Supp.2d 1135 (E.D.Mo.2003), the government informed Martin that Special Agent Binney testified at a hearing pursuant to Franks v....

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