United States v. Joseph Martin, Defendant-Petitioner. United States of America v. Willie Coreas, Defendant-Petitioner

ON PETITION FOR REHEARING IN BANC.

WESLEY, Circuit Judge, concurring in denial of rehearing in banc.

I concur in the denial of rehearing in banc in United States v. Martin, 426 F.3d 68 (2d Cir.2005), and United States v. Coreas, 419 F.3d 151 (2d Cir.2005). I write only to prevent a potential misconception about the nature of Martin and its implications.1

Contrary to the dissent’s suggestion, this case is not about an accidental tourist' who while casually surfing the internet stumbles upon a website with a “few clicks of a mouse.”2 Rather, this case is about a man who visited a Yahoo! e-Group entitled “girlsl2-16,” saw the e-Group’s sexually explicit welcome message — which clearly announced its predominantly illegal purpose — affirmatively joined the e-Group, and remained a member of that e-Group for two weeks until it was shut down.

The explicitness of the welcome message belies any suggestion that a reasonable viewer would not realize that the “girls 12-16” e-Group was a forum for illegal and eonstitutionally-unprotected activity including downloading child pornography and receiving child pornography via e-mail:

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. The joy of feeling like she is actually coming into womanhood. It’s an age where they have no preconditions about anything, just pure opennes [sic]. 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. You can share all kinds of other information as well regarding-your current model: if you are a photogra*75pher. Where the best' place to meet gitls [sic] 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 [sic] some ways share the experience with you. You could connect with others from the same country as you and get together sociall [sic] 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 imaginations. Membership is open to anyone, but you will need to post something. Mybe [sic] a little bit about yourseli/what your interests are (specifically), your age, location ... and a pic or vid would be good to [sic]. By doing this other members (or potential members) with the same interest may then contact you if you wish them to.

United States v. Martin, 426 F.3d 83, 85 n. 1 (2d Cir.2005) (quoting J.A. 52-53 ¶31).

“The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In this case, the redacted affidavit established:

(1) “that individuals that sought membership in the e-group were presented with the name of the group and its detailed welcome message” [see J.A. 52-53 ¶ 31];
(2) “that members of the e-group were actively uploading and downloading child pornography on the site and exchanging e-mail with illicit attachments” [see J.A. 51. ¶ 29 (citing J.A. 48-49 ¶ 25)];
(3) “that a large majority of the text-only e-mail was generated automatically as a means to inform members that new child pornography had been uploaded onto the site” [see id.]; and
(4) “that an e-mail address associated with Martin’s household (Joeym@ op-tonline. net) was enlisted and remained on the membership rolls until the group was suspended by Yahoo!” [see J.A. 56-57].

Martin, 426 F.3d at 87. Thus, this case is not about “a passing curiosity,” mere “guilt by association” or “searching] the homes of innocent individuals.” See infra at 76. Martin saw the welcome message’s invitation — an invitation that clearly and unambiguously indicated that children were being sexually exploited by adults through the exchange of child pornography. Martin then actively accepted this invitation by affirmatively joining the e-Group. As a result, there was a fair probability that contraband or evidence, fruits, or instru-mentalities of a crime would be found at the premises where Martin’s computer was used to access the girlsl2-16 site. See Martin, 426 F.3d at 87.

. The Coreas panel felt constrained by Martin, see Coreas, 419 F.3d at 159, and United States v. Coreas, 426 F.3d 615, 616 (2d Cir.2005) (denying petition for rehearing), even though the welcome message from the "Candyman” e-Group at issue in Coreas significantly differed from the welcome message from the “girlsl2-16” e-Group at issue in Martin, and even though the Martin panel explicitly suggested this distinction as a basis for distinguishing the cases in its denial of rehearing. See United States v. Martin, 426 F.3d 83, 85-86 (2d Cir.2005). We do note however that the only other circuits to have considered the same affidavit as Coreas did find probable cause for issuance of the search warrant. See United States v. Froman, 355 F.3d 882, 891 (5th Cir.2004); United States v. Hutto, 84 Fed.Appx. 6, 8 (10th Cir.2003) (unpublished).

. It bears mentioning that, in the internet era, many crimes can be committed with just a few clicks .of a mouse, including the downloading of child pornography — the crime at issue in this case.