U.S. v. Coreas, Docket No. 03-1790 CR.

• Decision Date: 18 August 2005
• Docket Number: Docket No. 03-1790 CR.
• Citation: 419 F.3d 151
• Parties: UNITED STATES of America, Appellee, v. Willie COREAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

Page 151

419 F.3d 151

UNITED STATES of America, Appellee, v. Willie COREAS, Defendant-Appellant.

Docket No. 03-1790 CR.

United States Court of Appeals, Second Circuit.

Argued: February 3, 2005.

Decided: August 18, 2005.

Appeal from the United States District Court for the Eastern District of New York, Leonard D. Wexler, J.

Demetri Jones, Assistant United States Attorney (Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Emily Berger, Assistant United States Attorney, on the brief), Brooklyn, New York, for Appellee.

Harold Price Fahringer, Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, LLP, New York, New York (Richard B. Schwartz, Schwartz & Grodofsky, Mineola, New York, and Erica T. Dubno, Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, LLP, New York, New York, on the brief), for Defendant-Appellant.

Before: JACOBS and CALABRESI, Circuit Judges, and RAKOFF, District Judge.^*

RAKOFF, District Judge.

Child pornography is so repulsive a crime that those entrusted to root it out may, in their zeal, be tempted to bend or even break the rules. If they do so, however, they endanger the freedom of all of us. Here, the Government obtained a warrant to search for child pornography in the private homes of 24 persons, including appellant Willie Coreas, on the basis of an FBI agent's affidavit that, as several courts have now determined, was in many material respects knowingly or recklessly false. See, e.g., United States v. Strauser, 247 F.Supp.2d 1135, 1142 (E.D.Mo.2003); United States v. Perez, 247 F.Supp.2d 459, 479-480 (S.D.N.Y.2003).

The false information was supplied by FBI Special Agent Geoffrey Binney, who, on his own initiative, began hunting for child pornography websites in late 2000. On January 2, 2001, Agent Binney encountered the "Candyman" site, an interactive "e-group" website that allowed its members to exchange information, upload and download electronic files, and chat with other members in "real time." The website invitation to join the Candyman e-group stated, in its entirety: "This group is for People who love kids. You can post any type of messages you like too or any type of pics and vids you like too. P.S. IF WE ALL WORK TOGETHER WE WILL HAVE THE BEST GROUP ON THE NET."

After becoming a member of Candyman by clicking the "join" button on its website, Agent Binney was presented with three options for receiving e-mail from the group: (1) he could receive each e-mail automatically; (2) he could receive a digest of each day's e-mails; or (3) he could receive no automatic e-mails whatever, leaving it to his personal discretion to visit the website and determine what individual messages he wished to read and what individual files he wished to download. Agent Binney chose to receive each e-mail automatically, and between January 2, 2001 and February 6, 2001, when Candyman was terminated, he received 498 e-mail messages from members of the group. About 100 of those e-mails had one or more picture files attached, with a total of 288 files transmitted. Of those 288 files, 105 contained child pornography, with the rest containing child "erotica" (such as children posed in provocative ways) that did not rise to the level of pornography.

On February 9, 2001, shortly after the site was shut down, Yahoo! Inc. ("Yahoo"), which hosted the site, provided the Government with a list of 3,397 e-mail addresses of people who were "members" between January 29 and January 31, 2001. During those three days, Agent Binney had received four Candyman e-mails containing child pornography. On August 31, 2001, Yahoo produced more complete activity logs for the group, including information about when members subscribed, unsubscribed, and carried out other activities such as posting images or text messages.

Binney then drafted an affidavit that law enforcement officials around the country relied on to support applications for search warrants to search the private residences of hundreds of people whose e-mail addresses were on these lists. One of those targeted was Coreas, whose e-mail address was shown to have subscribed to Candyman on January 17, 2001 and to have remained on the group's membership list for the three weeks until the group was shut down on February 6, 2001.

In his affidavit, Binney made numerous material assertions that two federal courts — after independently and contemporaneously conducting full evidentiary hearings — determined were knowingly or recklessly false. See Strauser, 247 F.Supp.2d at 1142; Perez, 247 F.Supp.2d at 479-480. These findings were subsequently adopted by other courts as well. See United States v. Coye, 2004 U.S. Dist. LEXIS 14979, at *3-*4 (E.D.N.Y.2004); United States v. Kunen, 323 F.Supp.2d 390, 393 (E.D.N.Y.2004); United States v. Bailey, 272 F.Supp.2d 822, 827-830 (D.Neb.2003).

Among other things, Binney asserted in his affidavit that he had joined Candyman by sending an e-mail message to the group's moderator, a step he asserted was required of all new subscribers. However, as the two courts found, see Perez, 247 F.Supp.2d at 466; Strauser, 247 F.Supp.2d at 1139-40, and as the FBI itself subsequently determined, Binney, like others, actually joined the Candyman group simply by clicking a button on its website.¹ Binney also asserted in his affidavit that all Candyman members automatically received all messages and files sent to the group by other members, whereas, in fact — as Yahoo's data clearly showed, as the two courts later determined, see Perez, 247 F.Supp.2d at 467; Strauser, 247 F.Supp.2d at 1139, and as the prosecutor in the instant case eventually conceded — Candyman members who, like Binney, subscribed via the website were asked to elect among several options, one of which was not to receive any automatic e-mails or accompanying files whatever.

Expressly on the basis of the sworn assertions by Binney that were later determined to be knowingly or recklessly false, another FBI agent, Austin P. Berglas, submitted to Magistrate Judge Joan Azrack of the Eastern District of New York an affidavit dated November 9, 2001 in support of a warrant to search the homes of 24 persons, including Coreas, and to seize, inter alia, their personal computers and related equipment, their personal documents and records relating to same, their videotapes, cassettes, cameras and film, and even their address books. Among other things, the Berglas affidavit, expressly on the basis of Binney's false representations, averred that each Candyman member had received the same files that Agent Binney had received on any given day, and that Coreas, in particular, had "received approximately 108 images of child pornography (one of which featured children in bondage), approximately 85 images of child erotica and 10 videos of child pornography." In actuality, the Government had no knowledge of what Coreas had received — even though, as subsequently determined, this was information it could readily have obtained from Yahoo if it had sought to do so. See Perez, 247 F.Supp.2d at 485. Instead, Berglas based these assertions in his affidavit entirely on Binney's false representations and inferences drawn therefrom.

Although the Berglas affidavit went on for many pages, no other allegations in the affidavit related specifically to Coreas, directly or indirectly. Instead, under the heading of "Child Pornography Collector Characteristics," the affidavit set forth the views of the FBI's "Behavioral Analysis Unit" as to the common "traits and characteristics" of people who collect child pornography, alleging, inter alia, that they "rarely, if ever, dispose of their sexually explicit materials and may go to great lengths to conceal and protect from discovery, theft, and damage their collections of illicit materials" and that "[t]hey almost always maintain their collections in the privacy and security of their homes or other secure location." 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 a crime. 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.

Based on the flawed Berglas affidavit, the requested warrant was issued, resulting, in Coreas' case, in the seizure of about one hundred computerized images involving child pornography found at his home.² This, in turn, led to his indictment on ten counts of possession of child pornography, see 18 U.S.C. § 2252A(a)(5)(B).

By the time Coreas was indicted, on March 13, 2002, the Government already possessed 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. 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. Therefore, not only had Binney been wrong to aver that every member automatically received each e-mail (with pornographic attachments in many cases), but in fact any given member was unlikely to have received any automatic e-mails from the group. Nonetheless, it was not until July 3, 2002 that the Government disclosed to Coreas' counsel that the Berglas affidavit was inaccurate in representing that every member of the Candyman group automatically received every e-mail message and file transmitted to the group. Even then, the Government's three-sentence letter did not disclose the underlying data or the fact that the overwhelming majority of Candyman members had consciously elected not to automatically...