Opinion
Case No. 02-CR-732 (FB).
August 4, 2004
ROSLYNN R. MAUSKOPF, ESQ., United States Attorney, SCOTT B. KLUGMAN, ESQ., Assistant United States Attorney, Brooklyn, New York, for the United States.
STEPHEN R. MAHLER, ESQ., Kew Gardens, New York, for the Defendant.
MEMORANDUM AND ORDER
Defendant Dwight Coye ("Coye") seeks reconsideration of the Court's November 14, 2002 Memorandum and Order ("M O") denying his motion to suppress evidence seized and statements he made during a March 6, 2002 raid on his home. See United States v. Coye, 2002 WL 3156542 (E.D.N.Y. 2002). For the reasons that follow, Coye's motion is denied.
I.
Coye's arrest was one of many arising from the investigation into the Candyman e-group. Familiarity with the Candyman investigation, as well as the basic background of Coye's own arrest, is presumed. The key fact of that investigation for present purposes is that the affidavit prepared by Agent Binney of the FBI in support of the Candyman search warrants erroneously stated that "[e]very Candyman e-group member on the Candyman e-group e-mail list automatically received every e-mail message and other file transmitted to the Candyman e-group by any Candyman e-group member." Coye, at 2. This affidavit underlies all of the search warrants and subsequent prosecutions in the Candyman cases. Prior to the Court's initial M O, the government had disclosed that this statement was erroneous and that, in fact, an opt-out option existed as part of the web site-based registration process, and that a person who selected this option would not automatically receive the e-mails. Id.
In its previous M O, the Court noted that "Coye does not assert that the erroneous statement in [Agent Binney's] affidavit was made knowingly, intentionally, or with reckless disregard for the truth, as he would be required to in order to obtain a hearing under Franks v. Delaware, 438 U.S. 154, 155 (1978)." See Coye, at *3. The Court found that the search of Coye's home was based on probable cause and denied his motion in its entirety. Id.
Subsequent to that M O, however, additional facts came to light. On December 2, 2002, the Government wrote Coye's counsel, informing him of testimony presented to a Grand Jury by Mark Hall, director of Yahoo Communities, the internet service provider on which the Candyman e-group had been based. Mr. Hall testified that Yahoo's records showed that Agent Binney subscribed via the Candyman web site and therefore would have been presented with the e-mail delivery options, including the opt-out option. This contradicted Agent Binney's previous sworn testimony at a Franks hearing that he had never been presented with an opt-out option. Coye moved for reconsideration based on Hall's testimony.
Judge Chin developed similar facts at a hearing he held on January 15, 2003, the substance of which is discussed at length in United States v. Perez, 247 F. Supp. 2d 459, 463-71 (S.D.N.Y. 2003). In sum, Judge Chin found that Agent Binney was presented with the opt-out feature, contrary to his affidavit, id. at 466, and that Agent Binney's "explanation for his erroneous belief that all Candyman members received all e-mails is wrong," id. at 469.
On August 13, 2003, the Court had a conference to discuss these developments in light of Coye's motion for reconsideration. Because these new facts had been fully developed in other proceedings and were not in dispute, the parties agreed that there was no need for the Court to take duplicative testimony, but that the Court would instead take judicial notice of the testimony presented in other proceedings. See Conference Transcript, August 13, 2003, at 3.
II.
A warrant affidavit must be truthful "in the sense that the information put forth is believed or appropriately accepted by the affiant as true." Franks, 438 U.S. at 164. A defendant may challenge a search warrant affidavit on this basis only if the "inaccuracies or omissions are the result of the affiant's deliberate falsehood or reckless disregard for the truth." United States v. Canfield, 212 F.3d 713, 717-718 (2d Cir. 2000). If a court decides that false statements or material omissions in a search warrant affidavit were made knowingly or recklessly, the court may then "correct" the affidavit by "disregarding the allegedly false statements" or by filling in the omitted information and then proceeding to "determine whether the remaining portions of the affidavit would support probable cause to issue the warrant." Id. at 718 (internal quotations omitted). If upon such de novo review the court determines that the "corrected" affidavit provides a sufficient basis to find probable cause, the court must then uphold the warrant and deny suppression. See id. To establish probable cause, the affidavit must support a finding of a fair probability that evidence of a crime will be found. See Illinois v. Gates, 462 U.S. 213, 238 (1983).
In Perez, Judge Chin determined that the FBI had acted recklessly in submitting the affidavit containing the false information. See Perez, 247 F. Supp. 2d at 479. He then concluded that "a magistrate judge could not reasonably conclude, based on the contents of the `corrected' affidavit, that the sole or even primary purpose for joining the group was to download images of child pornography," and therefore granted the motion to suppress. Id. at 482. Judge Chin noted the decision in Coye, as well as four other district court decisions from within the Circuit denying motions to suppress in Candyman cases, but distinguished them on the basis that "these decisions were rendered without the benefit of the additional evidence presented in this case that clearly shows that Binney's explanation of how he made the error is wrong and that his actual experience was that he joined via the website and was presented with e-mail delivery options." Id. at 485.
Subsequent to Perez, the Second Circuit decided United States v. Schmidt, 373 F.3d 100 (2d Cir. 2004). In Schmidt, the defendant appealed from the district court's denial of his motion to withdraw his guilty plea. Schmidt argued that the search warrant used against him was invalid because of Agent Binney's misstatements, and that he would have challenged the evidence rather than plead guilty had he known that the affidavit contained knowing or reckless misstatements. The Court of Appeals denied the motion to withdraw the plea, holding that the defendant had failed to justify it. See Schmidt, 373 F.3d at 103.
The Court went on to note, in dicta, that "[w]ere we to review the merits of Schmidt's underlying claim, we would be inclined to agree with the majority of courts to have decided this precise issue that, even excluding the misstatements, the affidavit demonstrated probable cause to search." Id. (citing, inter alia, United States v. Froman, 355 F.3d 882, 891 (5th Cir. 2004) and United States v. Hutto, 84 Fed. Appx. 6, 8 (10th Cir. 2003) (unpublished)).
Although considered dictum of a higher court is not binding, it "must be given considerable weight," United States v. Bell, 524 F.2d 202, 206 (2d Cir. 1975). The Court agrees with the Schmidt dictum, and with the other recent decisions relied on by the Circuit Court. The Candyman e-group was categorized on Yahoo as an adult image gallery, and its main web page described it as a "group for People who love kids." While it is technically possible that a person would register with Candyman and not proceed to receive child pornography from it, this hardly seems likely, as that was clearly the primary reason for the e-group's existence. "The sole purpose of the Candyman e-group, as demonstrated by the statement in its website and the activities generated on the website during the time Agent Binney was a member, was to receive and distribute child pornography and erotica." Froman, 355 F.3d at 890. "[I]t is common sense that a person who voluntarily joins a group such as Candyman . . . would download such pornography from the website and have it in his possession." Id. at 891. The Court concludes, therefore, that even the "corrected" affidavit would establish the fair probability that evidence of a crime would be found in searching Coye's home, and would thus be sufficient to establish probable cause to search.
CONCLUSION
Coye's motion for reconsideration is denied.