Tuesday, October 04, 2005

Rehearing Denied in Candyman Case

United States v. Martin, Docket No. 04-1600-cr (L) (Petition for Rehearing Denied, Oct. 3, 2005) (Walker & Wesley) (Pooler, dissenting): In a published decision, Chief Judge Walker sticks to his guns and denies the defendant's petition for rehearing in this controversial case involving a Fourth Amendment challenge to a search warrant issued in connection with the infamous "Candyman" investigation. (Click here for the original opinion by the Chief, and click here for our criticism of it). Judge Pooler again dissents, as she did originally. Given this continuing disagreement, and given in addition the directly contrary views of the panel in United States v. Coreas (click here for our over-the-top praise of Judge Rakoff's critique of the Martin majority opinion), we suggest once more that en banc rehearing is appropriate.

We add only one additional point in this post, concerning the majority's continuing insistance that, somehow, the "welcome message" to the "girls12-16" E-group / chatroom confirmed that the "primary purpose" of the group was "to facilitate the generation, inventory, and exchange of child pornography." Op. at 6. Because the majority admits that its peculiar reading of the welcome message constitutes "an integral component of our probable cause determination," and because of our (and Judge Pooler's) continuing disagreement with the majority's assessment that the welcome message "unabashedly announced that the group's essential purpose was to trade child pornography," id., we will let the reader decide. Here is the entirety of the E-group's "welcome message" (Warning: Not for the faint-of-spelling, those sensitive to poor writing and grammar, or anyone offended by very slimy- / sleazy-talk):

"Hi all, This group is for all those ho appreciate the young female in here finest form. Watching her develop and grow is like poetry in motioon, 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. The joys of feeling like she is actually coming into womanhood. It's an age where they have no preconditions about anything, just pure opennes. What a joy to be a part of that wonderful experience and to watch the development of this perfect form. This is the place to be if you love 11 to 16 yr olds. You can share experiences with others, share your views and opinions quite freely without censorship (Ed.: well, maybe not) . You can share all kinds of other information as well regarding - your current model: if you are a photographer. Where the best place to meet gitls is. The difficulties you experience in your quest. The best way to chat up. Good places to pick girls up. Girls you would like to share with others. The choice is all yours. Welcome home! Post videos and photographs . . . and how about your true life experiences with them so that other viewers can paint a mental picture andin some way share the experience with you. You could connect with others from the same country as you and get together sociall if you wish. The choice is all yours. How about a model resource for photographers? It's all up to you and is only limited by your own imagination. Membership is open to anyone, but you will need to post something. Mybe a little bit about yourself / what your interests are (specifically), your age, location . . . and a pic or vid would be good to. By doig this other members (or potential members) with the same interest may then contact you if you wish them to."

Op. at 3-4 fn.1. As noted, the majority reads this passage as "unabashedly announc[ing] that the group's essential purpose was to trade child pornography," Op. at 6, and upholds the search of Martin's home and computer based principally on this reading.

We will let the reader judge for herself, but we simply do not read the same words as conveying the same "primary purpose" as the majority does. We agree with Judge Pooler's reading, as well as the other points she makes in the following passage from the dissent:

"It is far from clear, based on either the welcome message or other aspects of the group, that the "primary purpose" of girls12-16 was to trade illegal visual depictions. Defining an organization's "primary purpose" is difficult given that any given member may understand that purpose differently, and is particularly difficult in this case because of the unstructured nature of E-groups. The welcome message of girls12-16 actually emphasizes many of the legal functions of the group. It suggests, among other things, that the group be used to "share experiences with others, share your views and opinions quite freely without censorship," "connect with others ... and get together sociall [sic]." While it also suggests posting pictures or video, there is no way to know whether this was intended to include child pornography, or simply child erotica, which while distasteful, is not illegal. In fact, child erotica constituted almost eighty five percent of the pictures emailed to Agent Binney while he was a member of the group, making it far more prevalent on the site than illegal child pornography. Berglas Aff. at 24.*7 The mixed uses described by the welcome message are confirmed by the fact that a number of legal and constitutionally protected activities could and did take place within the E-group. The group supported surveys, chatting, and textual postings. Berglas Aff. at 19. As discussed above, many of the pictures posted on the site were child erotica, not child pornography. Since child pornography was contained in less than eight percent of the emails sent to members of girls12-16, exchanging child pornography can hardly be considered the primary purpose of the group. The majority argues that the text based emails, which made up the majority of the emails, were merely a means to alert users that new pictures had been posted, majority op. at 8-9, but, even considering only the pictures that were emailed to users, the vast majority were legal child erotica, not illegal child pornography. Berglas Aff. at 24. It is therefore stretching the facts to conclude that the primary purpose of the group was to exchange illegal visual depictions. Despite this, the majority fails to even acknowledge the legal uses of girls12-16 and the very narrow nature of the crime at issue here."

Op. at 16-17 (emphases added). Kudos again to Judge Pooler for sticking to her guns and sticking up for the Fourth Amendment even when it means being on the side of a very distasteful group of people.


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