Opinion
No. 4:CR-01-0384
April 14, 2004
AMENDED ORDER
THE BACKGROUND OP THIS ORDER IS AS FOLLOWS:
On December 5, 2001, a Grand Jury sitting in the Middle District of Pennsylvania returned a one-count indictment charging Eric Shields with possession of child pornography in violation of 18 U.S.C. § 2252A(a) (5)(B) and 2252A(b)(2).
The charges against Shields arose out of his subscribing to two e-mail groups or websites which dealt in child pornography. The record in this case reveals that on January 2, 2001, Shields subscribed to the "Candyman" website using as his subscriber's name and e-mail address LittleLolitaLove@aol.com. The purpose of the "Candyman" website, as stated on the website, was as follows:
We will use the words "website" and "Egroup" interchangeably throughout this order. An "Egroup" is a web-based communications service that allows users to create communities for posting messages and sharing photos and files on topics of common interest. Each "Egroup" has its own website address or Uniform Resource Locator (URL).
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 to (sic). P.S. IF WE ALL WORK TOGETHER WE WILL HAVE THE BEST GROUP ON THE NET.
The theme of the "Candyman" website was echoed by a second website which Shields joined, the "Girls 12-16," which stated that its purpose was as follows:
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 motioon (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. . . . This is the place to be if you love 11 to 16 yr olds. . . .
Shields subscribed to this second website on February 6, 2001, using the same name and e-mail address.
On November 29, 2001, agents of the FBI executed a search warrant at Shields's residence and confiscated his computer. A subsequent review of that computer disclosed that it contained hundreds of images of minor children engaged in sexually explicit conduct, including images which reflected cruel sexual abuse and mistreatment of minors. The computer also contained graphic proof of Shields's receipt of pornographic e-mails in the form of numerous saved e-mails. Furthermore, agents recovered a cache of binders and notebooks filled with child pornography.
At the time of the search agents also had an opportunity to interview Shields, After waiving his Miranda rights, Shields agreed to be interviewed by investigators and provided investigators with a handwritten statement in which he acknowledged viewing, obtaining, raceiving and possessing child pornography through his computer from the Internet.
On February 27, 2002, Shields entered a plea of guilty to the one-count indictment. By order of February 28, 2002, the court directed that a presentence report be prepared and scheduled a presentence conference for May 30, 2002.
On May 20, 2002, Shields filed a motion to continue the presentence conference for 45 days. Shields gave the following three reasons justifying a continuance of the presentence conference: (1) the evidence again, 3t Shields needed to be reviewed in light of a recent Supreme Court case which held that it is not illegal to possess virtual images of child pornography; (2) counsel's seminar and vacation schedule; and (3) the need to obtain and review a psychological evaluation of Shields. The Government concurred in the motion. By order of May 21, 2002, we granted the motion and the presentence conference was continued to July 15, 2002.
On June 7, 2002, Shields filed a motion to continue the presentence conference scheduled for July 15, 2002, for 60 days. Shields gave the following two reasons justifying a continuance of the presentence conference: (1) a neurological evaluation of Shields needed for the completion of the psychological evaluation could not be scheduled until July 16, 2002; and (2) counsel for Shields was scheduled to participate in a workshop on "The Electronic Courtroom: Law and Technology Merge" in Boston, Massachusetts, from August 12, 2002, through August 14, 2002, and attend a family wedding in Greenfield Massachusetts from August 15, 2002, through August 18, 2002, The Government concurred in the motion. By order of June 7, 2002, we granted the motion and the presentence conference was continued to September 17, 2002.
On September 11, 2002, Shields filed a motion to continue the presentence conference scheduled for September 17, 2002, for at least 60 days. Shields gave the following two reasons justifying a continuance of the presentence conference: (1) the investigation relating to whether Shields possessed images of identifiable children engaged in sexually explicit conduct had not been completed; and (2) alleged inaccuracies in the Search Warrant Affidavit utilized to obtain a search warrant for Shields' residence had been discovered which needed to be investigated. The Government concurred in the motion. By order of September 11, 2002, we granted the motion and the presentence conference was continued to November 19, 2002.
On November 8, 2002, Shields filed a motion to continue the presentence conference scheduled for November 11, 2002, for at least 60 days. Shields gave the following three reasons justifying a continuance of the presentence conference: (1) to obtain and review discovery materials which had not yet been provided by the Government; (2) to request additional discovery materials in response to recent disclosures by the Government; and (3) to determine whether to file appropriate motions seeking suppression of evidence. The Government concurred in the motion. By order of November 12, 2002, we granted the motion and the presentence conference was continued to January 21, 2003.
On January 16, 2003, Shields filed a motion to continue the presentence conference scheduled for January 21, 2003, sine die. Shields gave the following reason justifying a continuance of the presentence conference: to afford defense counsel ample opportunity to investigate and research the propriety of filing a suppression motion concerning the search conducted pursuant to the search warrant issued on an affidavit containing factual inaccuracies. The Government concurred in the motion. By order of January 16, 2003, we granted the motion and the presentence conference was continued sine die. Furthermore, defense counsel was directed to file a status report every 60 days until the presentence conference was rescheduled or another appropriate motion was filed.
Status reports were filed on April 3, May 22, and July 22, 2003. On October 15, 2003, defense counsel filed a fourth status report which stated in relevant part as follows:
2. Shields' (sic) has been reporting in his prior status reports that he expected to file a Motion to Suppress Evidence, but that the government is still in the process of gathering additional discovery information which will impact on a Motion to Suppress Evidence,
3. Specifically, Shields' (sic) seeks documentation showing the e-mail delivery option which he selected from the Candyman website.
4. To date, Shields has not received any documentation showing the e-mail delivery option which he selected.
5. First Assistant United States Attorney Martin Carlson and the undersigned continue to be engaged in discussions regarding the disposition of the instant case.
By order of October 16, 2002, we issued an order establishing "a procedure to bring this matter to a conclusion." The order authorized Shields to file on or before December 16, 2003, a motion to withdraw his guilty plea. It further provided that if no such motion was filed a presentence conference would be held on Thursday, December 18, 2003, at 4:15 p.m.
On December 16, 2003, Shields filed a motion entitled "Eric Shields' (sic) Motion to File An Addendum to the Plea Agreement to Consider Shields' (sic) Previously Entered Guilty Plea A Conditional Plea Pursuant to Federal Rule of Criminal Procedure 11(a)(2)." In paragraph 34 through 37 of the motion Shields stated as follows:
34. Rather than withdraw his guilty plea, Shields wishes to amend his guilty plea to a conditional plea to permit him to challenge the constitutionality of the search warrant and to maintain the position in which he was as of the discovery of the inaccuracy in the search warrant affidavit.
35. The parties wish to file an Addendum to the Plea Agreement, setting forth that Shields' guilty plea should be considered a conditional plea of guilty and that Shields may challenge the constitutionality of the search warrant before this Honorable Court and on appeal, if necessary.
36. The parties seek until January 15, 2004, to file an executed Addendum to the Plea Agreement and Shields seeks until February 15, 2004 to file a motion related to the constitutionality of the search warrant.
37. The government concurs in this motion.
On December 17, 2003, we issued an order granting the motion. On January 12, 2004, the Government and Shields filed an addendum to the plea agreement which stated in relevant part as follows:
1. Following the entry of the guilty plea in this case, the parties received information regarding potential legal issues relating to the search warrant executed in this case. In order to preserve the defendant's right to litigate these issues, pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure, with the approval of the court and the consent of the government, the parties agree that the defendant's guilty plea should be considered a conditional plea of guilty to the charge described in the plea agreement with reservation of the right to litigate suppression issues before the District Court and, if necessary, on appeal, to review any adverse determination of any motions which the defendant may file relating to legal issues identified by the parties following the defendant's initial guilty plea. The parties acknowledge that the defendant shall be allowed to withdraw any plea of guilty if the defendant prevails in the District Court or on appeal.
The Addendum was signed by counsel for Shields on January 8, 2004, and the United States Attorney on January 11, 2004.
On February 13, 2004, Shields filed a motion to suppress physical evidence and statements. A brief in support of that motion was filed on March 1, 2004. The Government filed a brief in opposition on March 19, 2004. The motion to suppress became ripe for disposition on April 5, 2004, when Shields filed a reply brief.
We will first set forth some background relating to the investigation and issuance of the search warrant for Shields's residence. While Shields was embracing the "Candyman" and "Girls 12-16" websites, the activities of those websites as portals for the transmission of child pornography were coming under scrutiny by the FBI in Texas. On January 2, 2001, Special Agent Geoffrey Binney of the FBI, acting in an undercover capacity, joined the "Candyman" website. During his undercover investigation, Special Agent Binney confirmed that the "Candyman" website was a vehicle for the distribution of child pornography. Also, Special Agent Binney's contact with the "Candyman" website led him to the "Girls 12-16" website. On February 2, 2001, Special Agent Binney joined that website and confirmed that it also was a vehicle for the distribution of child pornography.
Armed with the knowledge developed by Special Agent Binney, the FBI began an investigation aimed at identifying those who had been actively receiving, possessing and distributing child pornography through "Candyman" and "Girls 12-16." As part of this investigation, federal agents identified a person using the name and e-mail address "LittleLolitaLove@aol.com" as a member of both websites. The investigation revealed that "LittleLolitaLove@aol.com" was, in fact, a name and e-mail address used by Eric Shields of 80A Baldwin Boulevard, Selinsgrove, Pennsylvania.
On November 14, 2001, Special Agent Keith J. Cutri of the FBI in Williamsport, Pennsylvania, filed an application and affidavit for a search warrant with United States Magistrate Judge William H. Askey for Shields's residence in Selinsgrove. Special Agent Cutri based his affidavit for search warrant in large part upon a form affidavit that was prepared by Special Agent Binney. The affidavit prepared by Special Agent Cutri was one of many prepared by FBI agents throughout the country utilizing the information developed by Special Agent Binney.
The 24-page affidavit consists of numerous paragraphs and subparagraphs. Following seven preliminary paragraphs which set forth, inter alia, the experience of Special Agent Cutri, the focus of the investigation, and the location and description of the residence to be searched, the affidavit is separated into the following four sections: (1) "Use of Computers With Child Pornography" which explains the mechanics of the Internet (¶ 8); (2)"Investigative Background" which sets forth the details of the investigation (¶¶ 9-28); (3) "Methods and Habits of Child Pornographers" which sets forth the practices and habits of individuals who are involved in child pornography over the Internet; and (4) "Seizure of Computer and Computer-related Equipment" which sets forth why those items should be seized.
Much of what was set forth in the 24-page affidavit is undisputed by Shields. He does not contest the affidavit's description that the Internet operates as a pathway for the distribution of child pornography, that the websites he joined identified themselves as vehicles for the exchange of child pornography, and that he voluntarily joined the two websites under the name "LittleLolitaLove," during a period when Special Agent Binney, acting in an undercover capacity, received over 100 images of child pornography through the two websites.
Shields, however, contends that because of false statements in the affidavit the evidence obtained as the result of the search of his home should be suppressed. He further contends that his oral statements should be suppressed as the fruit of an illegal search. Shields argues that under Franks vs. Delaware, 438 U.S. 154 (1978) he is entitled to a hearing to test the veracity of the affidavit supporting the search warrant.
Franks mandates a hearing only if (1) the defendant makes a substantial showing that the affidavit contains intentional or reckless false statements and (2) the affidavit, purged of the false statements, would not support a finding of probable cause. Id. at 171-172; United States v. Frost, 999 F.2d 737, 742-43 (3d Cir. 1993); United States v. Avery, 295 F.3d 1158, 1166-67 (10th Cir. 2002).
We will assume for purposes of this decision that the affidavit contains intentional or reckless false statements. Shields submitted a redacted copy of the affidavit which eliminates the erroneous statements. We will first review that copy and determine if Shields's redactions were appropriate. Then we will review the affidavit purged of the offending material to determine whether the affidavit supports a finding of probable cause.
The Government concedes that there are inaccurate statements in the affidavit. However, the Government contends that they were not intentional or reckless false statements. We observe that two District Courts have concluded that Special Agent Binney's conduct was reckless. United States v. Strauser, 247 F. Supp.2d 1135, 1142 (E.D.Mo. 2003); United States v. Perez, 247 F. Supp.2d 459, 479 (S.D.N.Y. 2003).
First, Shields redacted portions of paragraph 11(a) of the affidavit. The unredacted paragraph with the portions redacted by Shields bracketed states as follows:
11. As a result of SA Binney's investigation, the FBI determined the following about the Candyman Egroup:
(a) Voluntary Egroup Membership: [In order to join the Egroup, a person had to visit the URL and send an email to the group moderator requesting permission to join. The moderator would then send a confirmation notice to the requestor's email account, advising him that he now had access to the Egroup.] There was no fee to join. [In addition, at the bottom of each email were directions instructing a member what to do if he wanted to stop receiving e-mails from the group and no longer desired to be a member of the group.]
Shields has pointed to evidence that suggests that the bracketed portions are inaccurate other than the portion "In order to join the Egroup, a person had to visit the URL". It is clear that a person had to visit the websites in order to join. Consequently, it is appropriate for us to consider the first 13 words bracketed in paragraph 11(a) — We will review the affidavit purged of the remainder of paragraph 11(a) that is bracketed.
Second, Shields redacted the following portion of paragraph 11(b) which the Government concedes was inaccurate:
Second, all members of the [Candyman] Egroup were immediately added to the Candyman email list. Every e-mail sent to the group was distributed to every member automatically. Therefore, when an individual uploaded and transmitted child pornography to the Candyman group, those images were transmitted to every one of the groups members (see below, e-mail received).
We will review the affidavit purged of the above portion of paragraph 11(b).
Third, Shields redacted the following portion of paragraph 11(c):
However, when someone uploaded a file to the website, the moderator sent a notice via e-mail to all members advising them of the name of the file, the date and time the file was posted, which folder it had been posted in, and the e-mail address of the individual who posted it.
This portion of the affidavit was inaccurate because not all members automatically received e-mail notification. We will review the affidavit purged of the above portion of paragraph 11(c).
Fourth, Shields redacted the following portion of paragraph 12:
Each [of Candyman and Girls 12-16 websites] contained the same e-mail group list feature so that each member received any child pornography or erotica that was transmitted to the group.
This portion of the affidavit was inaccurate because not all members automatically received e-mails containing child pornography, A member of the website could select a "no e-mail option." If a member did so, the member would not receive e-mails and would be obliged to access the website using his computer to determine if any new pornographic images were posted. We will review the affidavit purged of the above portion of paragraph 12.
Lastly, Shields redacted paragraph 25 of the affidavit which states as follows:
25. From 01/02/2001 through 02/06/2001, LittleLolitaLove(r)aol.com received e-mail containing images of nude children engaged in sexual activity and/or posing in provocative positions. Examples of these images include the following:File Name Description of Image
381. jpg Little boy simulating intercourse with little girl, both nude
0046.jpg Adult male having intercourse with a little girl
kp000716.jpg Adult male have intercourse with a little girl
neighbor_044.jpg Little girl performing oral sex on adult male
neighbor_045.jpg Adult male having intercourse with a little girl
081.jpg Little girl performing oral sex on adult male penis
9ea.jpg Little girl performing oral sex on adult male penis
9eai.jpg Little boy and little girl performing oral sex on adult penis
z001.jpg Adult male having intercourse with little girl
1103_009.jpg Little girl masturbating adult male surprise.JPG adult male ejaculating onto nude little girl's face and body
very1stbj.jpg Adult male placing penis in Toddler's mouth and hand The premise for including this paragraph in the affidavit was the assumption by Special Agent Binney that all members of the website automatically received e-mails containing the pornographic images of children. We will review the affidavit purged of paragraph 25.
Probable cause to issue a search warrant exists when the supporting affidavit, purged of the inaccurate statements, seta forth facts which would lead a prudent person to believe there is a fair probability that evidence of a crime will be found at a particular location. See Illinois v. Gates, 462 U.S. 213, 238 (1983); United States v. Williams, 3 F.3d 69, 72 (3d Cir. 1993); United States v. Froman, 355 F.3d 882, 889 (5th Cir. 2004); United States v. Bryd, 31 F.3d 1329, 1340 (5th Cir. 1994). Also, a "search warrant application should be read with common sense and not in a grudging, hyper-technical manner." Walden v. Carmack, 156 F.3d 861, 870 (8th Cir. 1998), Furthermore, statements in an affidavit may not be read in isolation. United States v. Whitner, 219 F.3d 289, 2, 96 (3d Cir. 2000), We are to look at the totality of the circumstances in determining whether probable cause exists. Id.
Judged against the above standards, Shields's attack on the warrant is without merit. The affidavit, even after being purged of inaccurate statements, contains several asserted facts that combine to support a finding of probable cause. Those facts show (1) that the purpose of the "Candyman" and "Girls 12-16" websites clearly was to share child pornography, (2) that Shields voluntarily became a member of the websites, and (3) that images containing child pornography were available to all members. The affidavit contains extensive background information regarding subscribers to such websites and the proclivity of members to use such websites to collect, trade and retain images of child pornography. It is also clear that Shields subscribed or joined the websites.
The affidavit in this case directly tied Shields to two child pornography websites and documented the distribution of more than 100 images of child pornography from those sites while Shields participated in the websitss. The affidavit then tied Shields's residence to this activity through the e-mail address used by Shields, "LittleLolitaLove@aol.com," an e-mail address which was itself strongly suggestive of pornographic activity, and was directly connected through billing records to Shields's home. Read in a commonsense fashion, these facts clearly link Shields's home to criminal activity.
The Oxford English Dictionary Online defines Lolita as follows:
The name of a novel (1958) and its main character by Vladimir Nabokov (1899-1977) about a precocious schoolgirl seduced by a middle-aged man, used to designate people and situations resembling those in the book.
In 1916, 47 years before Nabokov's novel, Heinz von Lichberg, an author resident in the same area of Berlin as Nabokov, wrote a short story centered on a young girl by the name of Lolita who seduced an adult boarder in her home. U.S. News World Report, April 12, 2004, page 46. Von Lichberg was the pen name of Heinz von Eschwege known for his radio commentary during Adolf Hitler's torch-lit procession to the Reichstag in 1933. Sydney Morning Herald, March 21, 2004. (http://www.smh.com.au/articles/2004/03/21/1079823238702.html)
The affidavit of probable cause in paragraph 29 elaborates on the term "Lolitas" as follows:
Individuals whose sexual objects are minors commonly collect and save child pornography . . . Sometimes individuals whose sexual objects are minors will refer to these images as "Lolitas." I believe this name comes from the titles of old child pornography magazines.
In a recent case involving the "Candyman" Egroup in the District of Nebraska, the district court stated as follows:
In my opinion, knowingly becoming a computer subscriber to a specialized internet site that frequently, obviously, unquestionably and sometimes automatically distributes electronic images of child pornography to other computer subscribers alone establishes probable cause for a search of the target subscriber's computer even though it is conceivable that the person subscribing to the child pornography site did so for innocent purposes and even though there is no direct evidence that the target subscriber actually received child pornography on his or her computer.
United States v. Bailey, 272 F. Supp-2d 822, 824-25 (D.Nebraska 2003) (Kopf, J.). We concur with the opinion of Judge Kopf and will reject Shields's request for a Franks hearing.
Shields also contends that the information in the affidavit was too stale to permit a search for child pornography. FBI Special Agent Binney joined the "Candyman" website on January 2, 2001, and Girls 12-16 on February 2, 2001. He terminated his membership on February 15, 2001. The affidavit disclosed that Shields was a member of the two websites in January and February of 2001. This was approximately nine months prior to the execution of the search warrant at Shields's residence. The affidavit also disclosed that Shields had Internet access in April of 2001, and observed that collectors of child pornography frequently possess and retain pornographic images over extended periods. Shields's staleness claim is devoid of merit. See United States v. Lacy, 119 F.3d 742, 745 (9th Cir. 1997) ("We are unwilling to assume that collectors of child pornography keep their materials indefinitely, but the nature of the crime, as set forth in the affidavit, provided good reason to believe the computerized visual depictions downloaded by [the defendant] would be present in his apartment when the search was conducted ten months later, "); United States v. Hays, 231 F.3d 630, 636 (9th Cir. 2001) (rejecting staleness challenge when over six months passed between the time defendant downloaded child pornography and the issuance of a search warrant for defendant's residence where affiant provided explanations of the activities of collectors and distributors of child pornography); United States v. Harvey, 2 F.3d 1318, 1322 (3d Cir. 1993) (rejecting staleness challenge where "[d]elivery of suspect material to [the defendant's] residence occurred between two and fifteen months before execution of the search warrant").
Finally, Shields argues that the search warrant was overbroad because in one paragraph it referred to both child pornography and adult pornography. This claim is not a basis to suppress the pornographic images of children seized at Shields's residence. See United States v. Cochran, 806 F. Supp. 560, 566-67 (E.D.Pa. 1992). Assuming the reference to adult pornography was inappropriate, the remedy would be to suppress the adult pornography seized by authorities. We do not see that we need to address this issue because there is no indication that the Government intends to present evidence of adult pornography. It is clear that the child pornography secured through the search warrant is still admissible in evidence even if some adult pornography was seized.
We see no reason to elaborate further on Shields's claims that the search warrant was stale and overbroad. The reasons those claims are without merit are set forth in detail in the Government's supporting brief at pages 14 through 19.
Because (1) the affidavit purged of the inaccurate statements establishes probable cause, (2) the facts set forth in the affidavit were not stale, and (3) the warrant was not invalid as a result of the reference to adult pornography, we will deny Shields's motion to suppress.
Also, pending before the court is Shields's motion for discovery. Because there is no basis to hold a Franks hearing, Shields's motion for discovery is moot.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. Shields's motion to suppress evidence (Doc. 54) is denied.
2. Shields's motion for discovery (Doc. 53) is denied as moot.
3. A presentence conference will be held on May 12, 2004, at 4:15 p.m.