DISCLAIMER: I had planned to state this at the beginning of Part V even before my hearing in Westchester, but afterward it seems even more imperative. I pleaded guilty to the charge of possession of child pornography. I did, do and will maintain that acceptance of responsibility inherent in my plea. My plea agreement prohibits me from denying my guilt, and I do not and have not denied it. I have in various forums raised questions about the evidence used against me. I freely admit to that.
But I made myself a promise in prison. I swore that when I got out I would at some point relay the factual series of events that surrounded that possession. I did not know back then that this opportunity would be that venue, but so be it. Every word here, as with all on this site, is 100% truthful and almost all can be verified by the individuals involved or the records that exists. You have to take my word alone for very little of what appears below. It is of no concern to me whether you believe the following. The important thing is that the truth finally exist.
When we ended Part IV I was in DC after discovering that the Village Voice had not run the chats with Fred but rather a Richard Roberts story. I had just left my dog in S.C. with friends believing that the story would appear and I would move to take my own life.
I headed home from D.C. I thought a bullet had been dodged and the Voice wouldn't run the chats. I believed that the chats they had were genuine chats I had engaged in with Fred. I had, at that time, no way of knowing what they were planning to run instead were chats fabricated by Fred and Tom Robbins. My fear in their appearing in print was not criminality, since nothing I had said or done with Fred on line was criminal, but rather the unendurable embarrassment of their salacious content.
So I went back to NY and made a conscious decision to leave my dog in S.C. for the time being. Why did I do that? Why not just turn around and retrieve him? You should know then as now the most important thing in my life was Seabright, my dog. Nothing came in at a close second. Why leave him?
My attorney, Irwin Rochman, and I had discussed numerous times the likelihood of a search warrant being executed on my home. We knew Fred was alleging child porn and that the NYC Department of Investigations and, we believed, the Manhattan District Attorney would come looking soon. Irwin asked me many times, "Is there anything we should worry about? Is there anything in the apartment or on your computer?" I assured him repeatedly that there was nothing there. But I was concerned. It had become apparent at this point that Fred Sawyers was a total psycho out for revenge for what he perceived as my having abandoned him. I did have in my home a few zip disks and floppy disks that contained pictures of adult men I had chatted with over some time. Since Fred was alleging child porn and I knew full well that we had never exchanged any was there something here I was missing? Irwin put me in touch with a computer expert and I asked him about this. He mentioned the possibility of something being embedded that I might not be aware of. Fred had indeed sent me dozens of nude pictures of himself. Was it possible that something had been in one of those e-mail attachments to which I wasn't aware? It didn't seem likely but I wasn't going to take any chances, especially after it became clear that Fred had weaved these elaborate lies about himself over years. He was capable of anything.
My computer resided in a small second bedroom/office in my home. It was a very small space. So on more than one occasion in the weeks that followed I cleaned out that room. I made absolutely sure that there were no disks. The only thing that remained of external storage were one or two shrink wrapped bundles of unopened zip disks. Seemed no point in throwing them away.
The reason I left Seabright in S.C. for the time being was based on the belief that a search was coming. I did not want Seabright there when my place was swarmed with cops. Seabright is a Labrador and like most Labs unbelievably friendly. We used to joke that if a burglar ever broke in Seabe would grab one of his toys and nag the burglar until he threw it for him to fetch. He was also something of a jumper. He liked attention and sometimes jumped on people. He was over 90lbs. I worried for Seabe's safety should armed cops enter my apartment and mistake Seabe's friendliness for aggression. So I left him in S.C. and waited for things to play out.
Meanwhile Irwin was in touch with DOI. DOI wanted very much for me to come in and speak with them. Basically undergo interrogation. This was mid April, 2002. Finally, DOI gave Irwin a deadline: Come in by Thursday or were not interested anymore. The implied threat being that some legal action would ensue. We debated the merits of talking to them and decided that because DOI was a joke as an investigatory agency there would be no benefit. We would wait for the Manhattan DA. Moreover, as the drip, drip of DOI's investigation went on, I started to become more unhinged. I couldn't take the daily revelations of some new thing I was accused of doing at HDC. As I said previously, the 9-5 torture of waiting for the phone to ring was absolutely getting to me. I begged Irwin to go to the Manhattan DA now and see about cooperating. "Make this end," I pleaded with him on many occasions. But he said no, there was no benefit, we should wait. That would prove to be one in a series of fateful mistakes.
So the Thursday deadline from DOI passed. In hindsight it was always a phony offer because what happened the next day had been planned for some time and DOI was just seeking to impress their masters by hopefully getting something from me before the anvil fell. It would make them look like leaders in the investigation instead of lackeys.
Friday morning at around 7AM the doorbell rings and the visitors announce themselves as U.S. Customs Service. DOI was also there. They brought a battering ram, the whole 9 yards. It was, as with all these Federal things, just over the top and ridiculous. They had a search warrant. I asked to see it. They began by treating me as though I was in custody. Telling me what I could and couldn't do. I told them I was going to call my attorney. They said no, that I couldn't make any calls as a search was also underway at Luke Cusack's home and they didn't want me tipping him off. Fine I said, you watch me dial. No, I couldn't make any calls. Well, I told them, I have a right to speak to my attorney and I am going to pick up the phone and call him. Are you telling me you are going to physically prevent me from speaking to my attorney? They looked at each other for a minute and finally said no. I couldn't find Irwin's home number at that moment and instead called my father to ask him for it. He gave it to me and I called Irwin.
Neither of us was surprised by the search but the inclusion of the Feds was a big surprise. If you've never been witness to a search, it's an interesting process. They take paper and put letters on them: a,b,c,d, etc and place one in each room. Two guys went into the small room and started working on my computer looking for child porn. One guy saw that I had a lot of blank videotapes. I had gotten one of the first available VHS VCRs back in the late 70's for a birthday present and had tapes of TV shows for over 25 years. He proceeded to use my VCR and put in tape after tape after tape for hours. Three other people went through my bedroom and one my kitchen. There must have been about nine people in total for a small one 1/2 bedroom apartment. One guy said he was going out to get coffee for everyone. I asked if he would buy me cigarettes. I had just run out and was very much in need of smoking. He thought about it. He reluctantly agreed and I gave him money. They stayed for many hours and still did a very poor job. I'll detail later how, as an observer, not even the target, I was able to see areas they missed.
I sat in a chair in my bathrobe and watched. They found out from the super that all tenants had a storage space in the basement. They asked if I consented to them searching it. I said sure. They discovered in my living room a contract for the storage space HDC rented for me that apparently after weeks and weeks of digging DOI hadn't uncovered at HDC. They took this as a major "a-ha" moment. This is the thing big busts are made from. I told them the storage space was completely empty. I offered them the key and gave my consent for them to search it. It was only three blocks away. No, they said. They were getting a search warrant. OK, I said, suit yourself, it's empty. Later on in the afternoon they came back with the revelation that it was empty.
Then towards the very end of the search it happened. One of the agents walked out of my study into the living room where I was sitting with a zip disk held aloft. He held it high in the air and had a big smile. I got very nervous. Why? Two reasons. One, there was no loose zip disk in that room. I had cleaned that room 3 times in the previous month. The room measured 10'x8'. I missed nothing. Second, the way he emerged holding that disk high in the air and smiling was creepy and staged. Bear in mind an extremely key fact in my case, disputed by no one: when they left my home that day they had discovered no child porn on the premises. The U.S. Attorney does not deny that fact.
They had spent hours on my computer looking but had turned up nothing so they took the computer and tons of other stuff away to search deeper. Pure common sense and the law tells you that had they found any I would have been immediately arrested. So why was he walking out with that smile and the disk held aloft? For whose benefit? And where the hell did that disk come from? Had he known at that moment there was something on the disk I would have been arrested. And since he didn't know, why was he parading it around as though it had some significance? All that remained were one or two sealed bundles of blank zip disks. There was no loose disk on the premises. I told the agent-in-charge I was going out into the hallway to call my attorney again. I went out by the elevator and called Irwin. I explained to him about the disk and how I know it wasn't there before they came. He asked if I was sure. Absolutely, I said. OK, we'll just have to wait and see, he said.
So they took my stuff away. As they were leaving one of the agents started to take the pictures off my wall. Some were artwork. Others were scenes of City Hall and Rudy's inaugural. I stopped him and asked where in the search warrant those pictures are mentioned or covered. His response sums up better than I ever could the belief that most federal agents, of any agency, have regarding individual rights. He said, " we'll take them and if they're not covered by the warrant we will return them later." I explained to him that I was getting my lawyer on the phone and he could discuss it with him. He dropped the issue and left the pictures. The search warrant meant nothing. The reason they exists is to state very clearly what is covered and what isn't. Remember the 4th Amendment? But his view of the constitution was: we'll take it now and if we can use it to prosecute you we'll justify its removal later; If not we'll return it. This is very dangerous stuff and happens every day.
I am going to depart from the narrative and chronology for the remainder of Part V. I will resume at this point in Part VI.
So we waited for the analysis of my computer equipment to come back. Weeks turned into months. At the end of over three months I received a phone call from my attorney, Gerald Shargel. I was at my parents house, upstate. I remember that day very well. My father handed me the phone and I went outside to talk to Jerry. He had never called me on a weekend and I knew this was either really good or really bad news. He told me that Debbie (Deborah Landis, the Assist. US Attorney) had called and told him that they had found one (1) picture of child pornography on a disk and that they were continuing to examine the disk for more. The old law on this matter basically protected you up till three (3) pictures. After that you were culpable of a crime. The newer law made possession of any images a crime. I was devastated. I was sure they would find nothing. But here it was - they found nothing on my computer but on a disk. Jerry even mentioned it being a zip disk. It was that disk.
Debbie would later say (her story changed many times in court and in the papers on this point) that the disk contained child porn and a few hundred other images of porn. By that she meant pictures of adult men. Here's my first question. Let's say there were 500 pictures of nude adult men. I am liberally interpreting "a few hundred". So in total there were 510 pictures and as it would turn out a 30 second video clip that was also child porn. How long would it take the average person to scroll through 510 pictures on their computer when you were not only looking for something very specific, but what you were looking for was so vastly different than the rest. Imagine if I gave you a disk of 510 pictures and told you that most were of a skiing trip - snow and mountains. But a few were of my trip to the desert. Meaning, they would be in stark contrast to the many. How long would it take you to find the 10 desert pictures? My guess is less than an hour, maybe 90 minutes. You would scroll through on a computer very, very quickly. Would it take over three months? And at the end of the three months would you say: I've only found one desert picture but I'm still not done looking. It doesn't seem plausible.
Bear something else in mind. When that call came from Debbie Landis she said they had found a single picture (I will switch now to the legal term which is 'image'). Debbie would eventually claim that on the disk were found a few hundred pictures plus 10 images of child porn and one (1) video clip. Any of you who are computer literate knows that the little Microsoft icon for a video clip is different and distinct from the icon for pictures. According to Debbie there was only one video on that disk. Wouldn't a competent computer expert - and that's whom they claimed was doing this work, not some putzy lawyer - check the icon that was unique and distinct from all the rest, first? Especially when it was a video and the only video and they were looking for child porn. But according to Debbie the first thing they found was an image, not a video. Further, if you're looking for holes in what I am saying, there never was a claim that anything was encrypted. It was all just there, plain to see.
After that call came from Debbie about the one image found, Jerry never heard another word on the subject. He told me that he asked Debbie many times if anything else had been found. Her answer was always the same, "we're still looking'. We never found out the answer until the day I was indicted, March 17, 2003, nearly a year after the search. When the indictment was unsealed we learned that the number was 11; 10 images and 1 video clip, all found on a zip disk, nothing found on my computer. Moreover they had seized either 2 or 3 other computers from HDC that had once belonged to me. No images were found on any of those computers either.
Many people have said to me that they found the number 11 not only a very low number for such a case, but odd. Who would have only 11 images if this was their predilection? The number 11 isn't odd. It is highly, highly significant. Before I get to that let me make one more fact perfectly clear. In the vast majority of child porn cases there are three categories of images discovered. First, legal images of pornography. Second, obviously and unquestionably illegal child porn; think a two year old toddler. No question there. Third, are what's called grey images. Is the person depicted 18 or 16? In many cases the government will bring in a forensic expert to examine the images and state the person couldn't be 18 for various reasons: bone structure, facial development, hair growth, etc. But the key point is that in almost every case there are grey images found. In my case there was not a single one. A few hundred pictures, presumably of men I spoke to on-line and the 11 images. The point being that the 11 were not chosen as the most obvious out of a pool of potentially hundreds of illegal and grey images. It was black and white. Legal and then the 11. No grey.
The law at the time of my arrest on this subject, as in most federal crimes, had various steps. More drugs, more time. More money embezzled, more time. You get the point. As it related to child porn the law at the time had increases in points for possession over certain numbers (all federal prison time is calculated using the Sentencing Guidelines which assigns points to various aspects of a crime and enhances the crime for various reasons, i.e bank robbery 30 points, gun used 20 extra points, look up 50 points on the chart and you see how long you have to serve). Guess where the first big increase in Guidelines points comes in? Possession of over 10 images. For those of you who aren't math whizzes, that means 11.
By the time the indictment was unsealed Debbie knew that the porn aspect of her case was on shaky ground. Debbie had gone, along with Special Agent Castro of the U.S. Customs Service, to Judge Fox in Manhattan to obtain the search warrant for my home. Debbie used four pieces of evidence - all from Fred - in order to get Judge Fox to sign that warrant. The first seemed dubious - the Fred/Tom Robbins chats themselves. Second, was a fact that Fred provided Debbie that I had told him I was in Chicago on a certain date on business. They checked with HDC and I was indeed in Chicago. (I have no doubt that during my on-line relationship with Fred I told him that.) Third, was a single e-mail Fred provided them purportedly from me to him. In it I reference an attachment which I suggest is child porn. Fred also provided a single image of child porn to Debbie that he claimed was that attachment. It was later shown that the e-mail like the chats was fabricated. (I have no knowledge that Robbins helped Fred create the e-mail, but I assume he did. Why would their conspiracy to forge documents only extend to the chats?) Moreover, Debbie's interest in not verifying Fred's accounts extended to the fact that she never brought him to meet her in NY. To my knowledge, this key informant was never seen by Debbie, my understanding is he did this all by fax and e-mail. More damning, in the only case of this I have been able to find anywhere in a federal prosecution, someone came forward, claimed to have child porn (Fred, claimed it was from me, but none-the-less, he had possession) and their computer was never seized. No search was conducted on his home. It is simply unheard of for an individual to come forward claim to have child porn and the FBI does not do a search of at least their computer if not their home. Unheard of! Debbie clearly wanted nothing to interfere with Fred's story.
Lastly, Fred gave Debbie 2 pictures he claimed were me and that I had sent to him at some point in our relationship. This, like the Chicago trip, was intended to establish our relationship that would presumably buttress the validity of the other exhibits he was providing. One problem. One of the two pictures wasn't me. It was simply some other guy. The second picture was me sitting behind a desk with a tie in shirtsleeves. Had Debbie done her job, as she was duty bound to do before presenting a federal magistrate with a search warrant request, in even the smallest way, she would have discovered that that very picture had been on HDC's website for 3 years. Moreover, because I liked the picture, it was used in 3 HDC annual reports. I never, ever sent Fred a picture of myself. At the least, Debbie knew that the one was just simply not me. But she lied and told Judge Fox that Fred had provided two pictures of me to support his bona fides. Mentioning neither that one was phony and the other highly, highly dubious to say the least.
Further, Special Agent Castro of the U.S. Customs Service provided Judge Fox with a totally over-the-top affidavit stating that based on his expertise in these matters and long record he was sure to find troves of child porn in every nook and cranny of my home, including in the air ducts. He assured Judge Fox that there would be pictures, magazines, videos stashed everywhere. During the search, since they had come up with nothing, Agent Castro did indeed open the ceiling air duct in my kitchen that plainly had not been opened in many years. All he got was a face full of dust that poured down on him.
I said earlier that the US Customs agents who searched my apartment did a very poor job. Here's why: I thought of this in prison, you have a lot of time to think in prison. In my living room was a wall of CDs. I had a few hundred at least. The computer they seized was the latest model. It had at least a CD burner, maybe even a DVD burner. Not a single one of those CDs was examined. Special Agent Castro would claim that he expected to find child porn everywhere. Wouldn't a good hiding place be those CD cases? Couldn't I have burned hundreds, if not hundreds of thousands of images onto CDs and disguised them as commercial CDs and put them in the commercial jewel cases in plain sight? In retrospect if that were my intention it doesn't seem very hard to do. But Agents Castro and his men never looked at a single one. They went through every book on my bookshelf, but never touched a single compact disc. Once I thought of this in prison, it seemed like such an incredible oversight and such sloppy work. Easier to steal the pictures off my wall than think cleverly. If I can still find it, I will post Agent Castro's afadavit. You have to read this thing to believe it. The bravado and macho arrogance that comes through is astounding. In the end, his expertise amounted to air ducts but not compact discs. You judge if you feel better knowing these guys are searching international cargo and for potential terrorists on your behalf.
Now, Debbie was promising her bosses a big payoff here. She was a Senior Assistant U.S. Attorney. For those of you who don't know, Senior AUSAs handle only one case at a time and a case of their own choosing. They make well in excess of $100,000 a year. Further, unlike an Assistant District Attorney in some county who may have to juggle 50 cases by herself, Debbie had a full staff to assist her in this one case. I was her only case for almost three years. Debbie would eventually spend millions of dollars, thousands of hours of her office and other federal agencies' time on this. She had a very bad search warrant having used fabricated chats and withholding evidence that cast doubt on the veracity of their only informant from Judge Fox. After all this do you think it's likely she would have said to her bosses she produced nothing on Issue II?
But Debbie's lying and disrespect for the truth and the office she held went further. Other than in the original indictment, Debbie never again mentioned the number 11. She always spoke in court or in documents vaguely as though the number were much greater. The effort was to make me out to be a crazed psycho deviant. On the day of my sentencing I wanted to make sure that the assembled reporters in the court knew the number was 11. I was tired of Debbie's repeated attempts to suggest through innuendo and speculation that the number was greater. So I stated very clearly to what I plead. The next day in the New York Times' story of the sentencing, it is stated that the Government had found 5,000 images of porn in my home. That number, 5,000, exists nowhere in my case. It was never mentioned in any document, referred to in court or in any other manner you can imagine. It simply never existed.
Henry Mazurek, an attorney of mine at the time, told me Debbie was pissed that I had mentioned the number 11. It deflated the grand case she was trying to make. Most of the reporters had no idea before I said it in open court that I was being prosecuted for 11 images. They were all under the impression it was far, far greater than that. A source at the Times confirmed that number, 5,000, came from the US Attorneys Office. Debbie wanted to undermine the number 11 so she created the number 5,000. The New York Times would later go on to use that fabricated number in a Gail Collins anti-Rudy editorial during his presidential campaign. The big lie that spreads.
The really low and underhanded aspect of what Debbie did, other then lying to the NYT, is that she did it intentionally knowing that since the matter was now resolved there would be no opportunity to rebut it. She would never have dared use that number in court or in any document. In fact, I have made many motions since that date and she has never used that number again. It was the worst kind of smear because the case was effectively over and I would not have a chance to defend myself or confront her in court about it. It is the lowest thing a prosecutor can do. Not only lie, but make up seemingly damning facts. As the case proceeds, you'll see it is just one in a series of lies Deborah Landis would tell. She lies routinely by omission and co-mission. The irony, as I'll show you in the coming weeks, is that for all her outrage and indignation at my crimes, she committed, as I have said, a serious Federal crime herself, having nothing to do with my case. Based on evidence provided to me in 2005 by Messrs. Shargel and Mazurek, I think you'll find it appalling that I was prosecuted, and for what I was prosecuted for, by someone like this. The lies and hypocrisy of former Senior Assistant United States Attorney Deborah Landis are just starting.
And what of the zip disk and the 11 images? What became of this crucial evidence? Debbie Landis says that it is unaccounted for. Notwithstanding that the US Attorney's Office is required to keep it because of the SORA process I faced after prison, at some point between 2003 - 2007 the disk mysteriously disappeared. That's pretty sloppy, unless it isn't.
That saves me. Tkhnas for being so sensible!
Posted by: Cindy | May 02, 2011 at 12:17 PM
I liked your site, you are very interesting to write. Merry Christmas and Happy New Year!
Posted by: Antivirus_man | December 05, 2010 at 09:45 AM
I think these so called cops just made a show of the disc because they figured they would find nothing after they had tippe their hand so long ago, why would they expect to find anything incrimminating at all? You had plenty of time to remove it all, so they executed a warrant just for the purpose of finding out what sort of plant they could used. Notice, that they said "ahhha!" with the disk, as if they had already found what they were looking for and then it took them months to find the first pic???? There is something wrong with this whole search, of course they would have checked your cd's! They were not incompetant, they just knew that you were smart enough to to have that stuff around you so they didn't need to check they just piddled around to make it look like they had to search for the evidence that they planned to plant.
I have heard of these types before, they came on Art Bell Coast to Coast and tell how they fabricate evidence to get people they are certain are bad but who are to careful to get caught, they explained how they plant evidence and do not feel guilty for it because they feel like rightous crusaders and if they have to lie so be it. I think you are right 10+1 is the formula they used and did not over due it because the images they reffered to may have been from other cases that someone would recognize. Thats why the disk disappeared too. We live in a sea of lying psycopaths and cops are the worset.
Posted by: jetta | March 23, 2009 at 07:46 PM
why would you plead guilty to possession of 11 images if the disk wasnt yours?
Posted by: Bobby Jones | March 23, 2009 at 02:15 PM