U.S. v. Perez
| Decision Date | 05 March 2003 |
| Docket Number | No. 02 CR. 854(DC).,02 CR. 854(DC). |
| Parties | UNITED STATES of America, v. Harvey PEREZ, Defendant. |
| Court | U.S. District Court — Southern District of New York |
James B. Comey, Esq., United States, for the Southern District of New York by Alexander Southwell, Esq., William Craco, Esq., Assistant United States Attorneys, New York City, for U.S.
Leonard F. Joy, Esq., The Legal Aid Society, Federal Defender Division by Nicole P. Armenta, Esq., Steven Statsinger, Esq., New York City, for Defendant.
This case presents difficult questions concerning the Fourth Amendment and the internet. On the one hand, child pornography and the sexual abuse of children are crimes that have been fueled by the internet, as those who would exploit children have sought to take advantage of the internet's vast and largely anonymous distribution and communications network. On the other hand, when law enforcement gathers information about the activity of individuals on the internet, the potential for unreasonable intrusions into the home—the chief concern of the drafters of the Fourth Amendment—is great. This case demonstrates the tension that can exist: the Government argues, in essence, that it had probable cause to search the homes and seize the computers of thousands of individuals merely because they entered their e-mail addresses into a website where images of child pornography were available, even without any proof that the individuals uploaded, downloaded or discussed the images, or otherwise participated in the website.
Defendant Harvey Perez is charged in a one-count indictment with violating 18 U.S.C. § 2252A(a)(5)(B) by unlawfully and knowingly possessing materials containing images of child pornography transmitted in interstate commerce. The Government also seeks the forfeiture of certain of Perez's computer equipment. This case arises out of Operation Candyman, an undercover FBI investigation into a group that allegedly traded pornographic images of children over the internet.
Perez moves to suppress certain evidence obtained as the result of the execution of a search warrant at his home. For the reasons that follow, the motion is granted and the evidence is suppressed.
On March 6, 2002, federal law enforcement agents executed a search warrant at Perez's home. They seized a computer, numerous compact discs and floppy discs, computer drives, a scanner, two cameras, and a piece of paper listing various websites. (Perez Aff. ¶2; Armenta Aff. Ex. C (FBI property receipts)). The agents also interviewed Perez; he "admitted to visiting child pornography sites" on the internet. (Armenta Aff. Ex. D (FBI 302); see Perez Aff. ¶3).
The search warrant was issued by Magistrate Judge James C. Francis IV on the basis of a 32-page affidavit executed by Special Agent Austin P. Berglas of the FBI on March 1, 2002. (Armenta Aff. Ex. E). The affidavit requested authorization to search nine residences in Manhattan, the Bronx, Riverdale, West Point, Wappingers Falls, Tarrytown, and the village of Florida, New York. (Id. ¶2, 5). One of these residences was Perez's home. The agent represented that probable cause existed to believe that the nine residences contained evidence of violations of 18 U.S.C. §§ 2252 and 2252A, which make it a crime to knowingly transport, transmit, or receive child pornography in interstate or foreign commerce by any means, including computer. (Id ¶2).
The affidavit provided a lengthy description of how the internet and computers are used—in general terms—to distribute child pornography. (Id. ¶7). It also described an undercover investigation by the FBI into the "Candyman Egroup." (Id. 118).
The affidavit provided little detail on the Candyman Egroup. It explained that the Candyman website displayed the following message:
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.
(Id. ¶8(b)). The affidavit did not represent or assert that the sole or principal purpose of the Candyman Egroup was to engage in unlawful conduct. It represented that the group had 3,397 members. (Id. ¶8(h)).
The affidavit explained that to become a member of the website an undercover FBI agent was required to send an e-mail message to the group's moderator requesting permission to join; no fee was required. (Id ¶8(b)-(c)). The affidavit detailed how, after receiving confirmation of membership via e-mail, the undercover agent was able to download, from the Candyman website, approximately 100 images and video clips of "prepubescent minors engaged in sexual activities," "the genitalia of nude minors," and "child erotica." (Id. ¶8(a), (e)). Of these, the majority of the images and video clips fell into the first category. (Id. ¶8(e)). In addition, the affidavit reported that the undercover FBI agent received some 498 e-mails from the Candyman Egroup, of which approximately 105 had attachments containing child pornography and another 183 had attachments containing "child erotica images." (Id ¶8(f)).1
The affidavit explained that the Candyman Egroup website had several features, including a "Files" section that permitted members to post images and videos for other members to download. It also disclosed that the Candyman site offered a "Polls" feature that permitted members to answer survey questions; a "Links" feature that permitted members to post links to other websites; and a "Chat" section that permitted members to engage in "real time conversations with each other." (Id. ¶8(d)).
The affidavit represented that all new members were immediately added to the Candyman Egroup's mailing list, and it asserted the following:
Every Candyman Egroup member on the Candyman Egroup e-mail list automatically received every e-mail message and file transmitted to the Candyman Egroup by any Candyman Egroup member. Therefore, when individuals transmitted child pornography to the Candyman Egroup, those images automatically were transmitted to every Candyman Egroup member.
(Id ¶8(d) (emphasis added)). These representations were critical because they advised the magistrate judge that all Candyman members automatically received all emails and that therefore all Candyman members must have received e-mails that contained images of child pornography.
The nine homes were included in the search warrant application because e-mail addresses for subscribers to the Candyman Egroup were registered to individuals who resided at those locations. (Id. U¶9, 10).
On August 12, 2002, the Government wrote defense counsel and advised that the above-quoted sentences from paragraph 8(d) of the affidavit were not accurate. (Id. Ex. F). The Government advised that in fact Candyman members had three email delivery options: (1) receipt of all emails; (2) receipt of only a daily digest of e-mails; and (3) "no e-mail receipt at all." (Id. at 1). A member who selected the no e-mail option would not receive any e-mails from the Candyman Egroup, its moderator, or its members. (Id.). Hence, it was not correct that every Candyman member received every e-mail from the group.
In its letter, the Government sought to explain the error. It explained that the representation that all members received all e-mails "was based on the hands-on experience of FBI Supervisory Special Agent Geoffrey Binney as an undercover member of the Candyman Egroup." (Id.). Binney, who has since left the FBI for the private practice of law, was the lead undercover agent in the investigation. He joined the Candyman Egroup in an undercover capacity on January 2, 2001. The Government wrote in its letter:
In his experience as a member, SSA Binney was never given an option for how to receive e-mail. After sending an e-mail requesting to become a member of the Egroup, he began receiving all email traffic automatically. (Id. at 1-2 (footnote omitted)). The Government also represented that an employee of Yahoo! Inc. ("Yahoo"), Lauren Guarnieri, had confirmed Binney's understanding that upon joining the group members started receiving e-mail automatically. (Id. at 2).
On January 2, 2003, the Government sent Perez a second letter acknowledging further error: the Government stated that paragraph 8(c), which represented that the undercover agent "was required to send an e-mail" to join the Candyman Egroup and did so, was also inaccurate. The letter forwarded logs from Yahoo and two FBI reports.
Perez moved to suppress the physical evidence seized and statements obtained as a result of the execution of the search warrant. I conducted an evidentiary hearing on January 15, 2003 and heard additional testimony and argument on February 19, 2003. Binney and another FBI agent, Special Agent Kristen Sheldon, testified for the Government. Based on the evidence presented, I make the following findings of fact:
1. The Candyman Egroup
The Candyman Egroup operated from December 2000 until February 6, 2001, when it was shut down. (GX 1; McGoff Stip. 115).2 It was initially operated by a company called eGroups, Inc. ("eGroups"). Yahoo acquired eGroups in August 2000 but did not begin converting the eGroups sites to its own product, until late January 2001. (McGoff Stip. 113).
The main page of the Candyman website (as it existed shortly after Binney joined the Candyman Egroup) announced that "[t]his group is for People who love kids," and it told members that they could "post any type of messages" or "any type of pics and vids." (GX 1; see 1/15/03 Tr. at 15; Armenta Aff. Ex. E 8(b)). An additional description was given in the middle of the page: "Category: Top: Adult: Image Galleries: Transgender: Members."
A number of hyperlinks appeared near the top of the left side of the page, including, as the first link, "Subscribe." The other links listed were: "Messages," "Post," "Files," ...
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