U.S. v. Froman
Decision Date | 05 January 2004 |
Docket Number | No. 03-20065.,03-20065. |
Citation | 355 F.3d 882 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Robert FROMAN, Defendant-Appellant. |
Court | U.S. Court of Appeals — Fifth Circuit |
Julia Bowen Stern (argued) and James Lee Turner, Asst. U.S. Attys., Houston, TX, for Plaintiff-Appellee.
Thomas J. Bevans (argued), Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas.
Before KING, Chief Judge, and DAVIS and EMILIO M. GARZA, Circuit Judges.
Defendant-Appellant Robert Froman ("Froman") challenges his convictions and sentence for receipt, possession, and conspiracy to distribute child pornography. His appeal is based on the assertion that the fruits of the search of his home and later confession should have been suppressed because the warrant authorizing the search was predicated on intentionally or recklessly false statements. Because the affidavit supports a finding of probable cause even without the alleged false statements, we affirm the district court's denial of Froman's suppression motion.
On December 6, 2000 pornographer Mark Bates ("Bates") founded an online club called The Candyman Group ("The Group" or "Candyman") using a free internet service called eGroups.1 In general, internet groups, like those available through eGroups, allow individuals with similar interests to band together and share information through the world wide web. Members of these groups are empowered to share interests, talents, and knowledge. Candyman did not have such a benign purpose. The singular goal of the Group was to collect and distribute child pornography and sexually explicit images of children.
All Egroups are organized into different categories according to interest. Candyman was categorized as an adult, transgender, image gallery, at once suggesting its sexual content. The main web page announced to anyone considering joining the Group its purpose:
This group is for People who love kids. You can post any type of messages you like too [sic] or any type of pics and vids you like too [sic].
P.S. IF WE ALL WORK TOGETHER WE WILL HAVE THE BEST GROUP ON THE NET.
After reviewing the web page and learning the group's mission, anyone who wished to join the Group could do so either by clicking the subscribe link on the main web page or by sending an e-mail to the group administrator. Those subscribing via the website subscribe link were presented with e-mail delivery options allowing them to choose whether to receive all e-mails addressed to the group as a whole, receive a daily digest of e-mails addressed to the group, or to receive no e-mails and simply review the messages on the website where they are archived. Members who joined via e-mail were sent a confirmation e-mail welcoming the new member to the group but would not necessarily be presented with e-mail delivery options. Subscription to Candyman was free of charge, and simple directions for revoking membership were provided at the bottom of all correspondence. Additionally, both a link and an e-mail address on the Group's main web page could be used to cancel membership.
Once a new member subscribed, he had full access to the website and all of its functions. Members could post electronic pictures and video clips to the website for other members to access and download. They could use the chat feature to converse with each other in real time. Members could use the group to disperse images, videos and text via e-mail. Each message addressed to the group was sent to all members who requested e-mail delivery and was also stored on the website for members to review at their convenience. E-mails were also sent by the Group to members notifying them of new files that had been posted to the site and at times giving a brief description of the pornography. A poll page was included on the website that allowed group members to vote on matters important to them. Candyman members voted on the types of images they preferred: Finally, a "links" page provided links to other webpages and other online groups that supplied child pornography.
Defendant Froman joined Candyman on January 9, 2001. He was a member of the site from that date until the site was shut down on February 6, 2001.
The investigation of the Candyman Group began in early January 2001, when Special Agent Geoffrey Binney ("Agent Binney"), acting undercover, joined the Group. After subscribing, Binney began receiving all of the e-mails that were addressed to the Group by other members, many of which contained child pornography. From the time Agent Binney joined until the Group was shut down, he received almost 500 e-mails, containing almost 300 images of child pornography or child erotica. Agent Binney further monitored the files uploaded to the website, and captured approximately 100 illegal images and video clips.
In mid January 2001, Agent Binney contacted Yahoo!, identified himself as an FBI agent, and probed for information on the group and its members. The representative from Yahoo! refused to answer Agent Binney's questions. Given the fruitless inquiries on January 19, 2001, Agent Binney obtained a subpoena directing Yahoo! to divulge any identifying information regarding members. Yahoo! responded to the subpoena on February 6, 2001. It shut down the site and provided Agent Binney with a list of approximately 3400 e-mail addresses of individuals who were Group members when Candyman was shut down.2 The list provided no indication that e-mail delivery options were available to members.
Agent Binney and the FBI sorted the 3400 e-mail addresses in the member list by e-mail address providers, and sent grand jury subpoenas to those providers, requesting Group members' names, addresses, phone numbers, and any other identifying information. Once the FBI obtained addresses from service providers, Group members were assigned to local FBI offices for further investigation. Agent Binney provided local offices with template search warrant affidavits which contained all of the basic information that had been collected in the investigation. Local agents could simply fill the gaps in the affidavit with the suspect specific information and present that affidavit to a magistrate to obtain a warrant.
Froman had subscribed to the Group under the e-mail address fbunkhousebob@aol.com, and through a subpoena to America On Line ("AOL") the FBI discovered his address, phone number, and other billing information. With this knowledge the FBI ultimately tracked him to a bunkhouse that he managed in Pasadena, Texas. AOL also provided the alias screen names that Froman used, which included Littlebuttsue and Littletitgirly.
FBI Agent Michael Millard presented the information gathered on Froman to Magistrate Judge Stacy in an affidavit, using Agent Binney's sample affidavit as a template. The affidavit primarily described the Candyman Group, explained that the FBI knew Froman was a member, and stated that all members of the Group received e-mails containing child pornography addressed to the Group. The magistrate issued a warrant and Agents Millard and a team of FBI agents and local police executed that warrant on November 30, 2001. During the search the team seized a computer, video camera, and video tapes, as well as hundreds of hard copy printouts of digital images. Some of the hard copy images matched those located on the Candyman site. On the hard drive they discovered hundreds of images of child pornography. Thousands of images were recovered in all. One of the tapes seized depicted Froman having actual or simulated sexual relations with his twelve-year-old daughter. Furthermore, during the execution of the warrant, Froman, having been read his rights, admitted receiving child pornography over the internet and confessed to creating a videotape of himself and his daughter engaged in sexual acts.
In March 2002 Froman was indicted with seven other defendants. This indictment was followed by a superseding indictment in April 2002, in which Froman was charged with conspiracy to knowingly transport, receive, and distribute child pornography in interstate commerce via the computer under 18 U.S.C. § 2252A(b)(1); receipt of child pornography in interstate commerce via computer under 18 U.S.C. § 2252(a)(2); and possession of child pornography transported in interstate commerce via computer under 18 U.S.C. 2252A(a)(5)(B).
In late May 2002, approximately six months after the search of Froman's apartment, Cathy McGoff, a compliance manager from Yahoo!, indicated in a similar proceeding against another Candyman member in St. Louis, that members were provided with e-mail delivery options. She stated that members could opt in or opt out of receiving e-mails addressed to the Group. This statement was confirmed by additional Candyman member lists provided to the FBI in June 2002. The new evidence demonstrated that each member had the option of receiving all of the e-mails addressed to the group, a daily summary, or no e-mails at all.
Based upon the new information from Yahoo! Froman moved to suppress the evidence recovered in the search and the subsequent confession. Froman argued that the statement in the affidavit that all group members received all e-mails addressed to the group was knowingly false or was made recklessly. Froman contended that without this statement the magistrate presented with the affidavit had no basis to find probable cause that Froman had received, possessed, or distributed child pornography.
The district court recognized that Group members had the option to receive or not receive e-mail but observed that because Agent Binney subscribed via e-mail and not the web site link he did not observe the e-mail options, and he was not notified of the options by Yahoo!...
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