3/20/94
I got a phone call today from an early player in this affair--the
guy who originally turned in Amateur Action BBS to the Postal
Inspectors. Turns out he had *not* hacked into AA BBS, but just read
the signon screens--and was not familiar with the hype used to
describe certain files. AA BBS *does* offer photos of nude "young
children." What they are is nudist material, legal (as far as anyone
knows) anywhere. The guy started out the call very upset that I would
be involved defending someone offering child pornography. I
explained to him that AA BBS had no child porn, and that the only
child pron involved in these events was that the postal inspector sent
to frame the AA BBS sysop. I went on to tell him that the postal
folks were mainly going after the sysop *and his wife* for bestiality
pictures and the like on his board. The guy was simply horrified at
what he had started since he has no problem with any of that kind of
stuff, or people who want to look at it.
Had he paid the signup fee and been an AA BBS member for even a
day, he would have realized there was nothing there to warrant
bringing in the postal inspectors. If he had even called the sysop .
. . .
Well, it is too late now, the legal bill on this case has likely
gone over $100k. One thing for sure, this case has totally shaken my
belief that the legal system is fair and honest. I find that the
court clerks take orders from the US Attorneys. Clerks keep the
judges in the dark about letters to them and even motions on their
calendars. I have found out that Magistrates provide no protection
whatsoever from unreasonable searches and seizures. (Why? Because
they *don't even *read* the search warrant affidavits!) I also have
found out that the Western District of TN runs a profitable racket
against adult BBS and other sources of erotic material.
I have also found that there seems to be *NO* possible legal
recourse available if a US Attorney breaks the law. The FBI is the
only organization which could investigate, and they have to ask for
permission---FROM THE US ATTORNEY THEY WOULD BE INVESTIGATING! Thus
laws designed to protect your privacy or communications have no teath
in them.
I am uploading this and several other recent related files to
Wildcat BBS in TN.
Folks, please check things out before involving the cops. Cops
have no sense of humor at all.
Keith Henson
3/16/94
More very odd goings on to report in the AABBS case. As you can see
from the body of this posting, there is a serious problem with the
court clerks controlling what the judges see. It seems to have
happened again.
I hand delivered the below letter (marked Personal and Confidential)
to Judge Patel's clerk [Ms Muriyama] in open court in the presence of
three lawyers. Unfortunately, Judge Patel stepped out of the court
just at the instance I handed the letter to her clerk.
Did Judge Patel get the letter? I suspect not. I know Judge Patel is
under no obligation to respond, or even have one of her staff respond,
but it would seem like this kind of report would generate a reply *if*
Judge Patel received it. Does anyone have an idea of how to reach a
judge if her clerks do not want her to see it? Someone has suggested
paying the local law paper to *publish* it as an advertizement.
Your suggestions would be most welcome since I am absolutely out of
ideas.
Keith
H. Keith Henson
799 Coffey Ct.
San Jose, CA 95123
408-972-1132
Judge Marilyn Patel
Northern District of California
450 Golden Gate Ave., 19th Floor
San Francisco, CA 94102
March 3, 1994
Dear Judge Patel:
You may want to look into certain acts last week by some of the
Court clerks. It appears they are taking orders from the US Attorney
to modify your calendar.
Last Thursday, Richard Williams (a lawyer from San Jose) made
telephone contact with Ms Muriyama in the clerk's office. He had a
motion to file for return of property and suppression of evidence in a
case which itself involves a report of fraud on Magistrate-Judge
Brazil's court to obtain a search warrant. (A matter about which I
informed Magistrate Brazil in a letter dated January 19.) Since you
were the Duty Judge in January when these events happened, it was
appropriate to bring the motion to you.
Ms Muriyama told Mr. Williams that the motion could be heard on
the calendar of your Court on Monday, February 28, 1994 at 2:30 pm if
he could get the motion filed early Friday morning. Mr. Williams had
the motion filed by courier with the clerks office by about 9 am last
Friday. He fully expected to be before your Court Monday at 2:30. I
learned of the hearing Friday and made plans to be there myself since
my affidavit is part of this motion. Two of Mr. William's staffers
talked to Ms Muriyama Thursday, and are prepared to testify as to her
agreeing to putting the motion on your calendar, though the option was
left open that you might shift it to some other department at the same
time.
Monday at 11:50 am, Vicki from Magistrate Brennan's office called
Mr. William's office to tell him that there was nothing on calendar
for his motion before either yourself or Judge Brennan because she
said the US Attorney had ordered the clerks to take his motion off
your calendar!
Vicki was told that according to Ms Muriyama (as of last Thursday
afternoon), the motion *was* on calendar. Vicki then alleged that Ms
Muriyama had not contacted Mr. Willaim's office the previous week.
She also said they had no copy of the motion for you to see (two were
filed, and one given to the US Attorney after filing).
A few minutes later, Ms Muriyama called saying that they had no
copies of the motion for you to review, though she did not deny that
she had put this matter on your calendar. Since Judge Brazil had
excused himself last week, she tried to get Mr. Williams to agree to
place the motion before Magistrate-Judge Brennan, and when told that a
Magistrate was unacceptable, she placed the motion hearing on Judge
Caulfield's calendar late on March 7, one day before the matter is to
be moved to Tennessee, a move which will inflict great costs and
business damage upon the plaintiffs.
Though I do not know that Judge Brazil ever saw the letter I
wrote to him, one of his staff called me last week and left a long
message (which I preserved) on my answering machine. In it, the
staff member stated that it was not a Judge's role to investigate the
fraud perpetrated on his Court to which I had directed his attention,
and that I should contact the US Attorney if I wished the matter to be
investigated. Given that the US Attorney has manipulated your
calendar to prevent these very matters from being brought to the
attention of your Court, I believe this approach would be akin to
getting a fox to guard the henhouse.
I would greatly appreciate your looking into these matters which
involve the integrity of the Court. I would also appreciate a very
short phone call from you to either myself or Mr. Williams indicating
only that this letter actually got into your hands.
I have never considered myself a naive person. In spite of this,
I have always felt that the judiciary in this country was honest. I
still feel this way, but how effective can an honest Judge be when
their information channels are completely controlled by one party in
an action?
Sincerely,
H. Keith Henson
PS I was quite surprised to find the Court clerks are employed by
the US Attorney's office. Considering how much control clerks/staff
have over what Judges hear and do, this arrangement harbors a high
potential for abuse--even if only inadvertent abuse. I simply could
not imagine Congressional staff members being employees of the
Executive branch! If there is a movement to put clerks under the
Judges, I would be happy to lend my support.
enc. Copy of referenced letter to Magistrate-Judge Brazil
Copy of letter to Chief Judge Thelton E. Henderson
-----
[Incidentally, Judge Caulfield was supposed to have ruled on the
motion to return property and suppress evidence last Friday. Mr.
Williams was called (by a clerk again) and told she would rude on his
motion without a hearing, and let him know how it came out by letter.
So far, nothing has showed up in the mail, and it will be a week
tomorrow. My long standing faith in a fair judicial process in this
country has been badly shaken.]
RICHARD D. WILLIAMS, APC
State Bar #92376
79 Divine St., Suite 101
San Jose, CA 95110
(408) 295-6336
Chief Judge Clifford Wallace
U. S. Ninth Circuit Court of Appeals
Two Rincon Center
P.O. Box 193846
San Francisco, CA 94119-3846
March 11, 1994
In Re: Complaint for Judicial Misconduct
Dear Chief Judge Clifford:
I am filing a complaint largely as a concerned citizen but also
on behalf of my clients, Robert and Carleen Thomas. It is my
understanding that section 372 (c) of title 28 is intended to preserve
the integrity of the judiciary. I would like to see an investigation
of what I consider to be an affront to the Ninth Circuit, its district
courts, the American people, and my clients.
Mr. and Mrs. Thomas run an adult bulletin board service. Their
activities of preparing graphical and written material for public
dissemination clearly makes them "publishers" within the meaning of
Title 42, Section 2000(aa) (Privacy Protection Act). In addition,
their system has 3,500 electronic mail users who were entitled to
protection under the Electronics Communications Privacy Act.
On January 10, 1994 the Thomas' entire computer system was seized
pursuant to a search warrant which was purportedly signed by Hon.
Wayne Brazil, U.S. Magistrate in the U. S. District Court for the
Northern District of California. This warrant was applied for by a
U.S. postal inspector (David Dirmeyer) from the Western District of
Tennessee. They were aware of the requirements of both 42 U.S.C. 2000
(aa) and 18 U.S.C. 2703 that a subpoena be used against both
electronic mail services and "publishers" unless a specific showing of
need is made by a judicial officer.
On the day following the execution of the search warrant I drove
to San Francisco (after the Clerk of the U.S. District Court for the
Northern District of California could find no such case number) and
was told that the U.S. Attorney had the case file for a week, and that
I should check back in a couple of days. As the clerk spoke, I could
not help but look up and see a sign indicating that removal of any
file from the clerk's office was punishable as a felony. I was also
told that nothing in the file was sealed (although there was no docket
sheet available for me to verify this).
I went back three days later and got the same reception at the
Clerk's office. Again there was no docket sheet and no file. I was
given Magistrate Brazil's office phone number, and I spoke with a
woman who claimed to be Magistrate Brazil's secretary. She told me
that there was no record she could find that there had ever been an
affidavit put before Judge Brazil, nor a search warrant issued.
Someone came up and spoke to her at which time she excused herself and
put me on hold for five minutes. When she returned she seemed
nervous, and told me that there was a file, but that the affidavit in
support of the search warrant was "sealed."
This affidavit was not unsealed until January 27, 1994, the day
after an indictment against my clients was filed in Western District
of Tennessee. My clients were deprived of due process in that the
rules were manipulated such that the Thomas' were denied their rights
to seek return of the seized property under rule 41(e), instead
forcing them to litigate this matter (to the limited extent possible)
in Tennessee. Since the file had no usable case number in either
California or Tennessee I had no way to defend my client, and hence
they were denied their Sixth-Amendment rights as well.
I apologize for my lengthy presentation, but I could not do this
matter justice with a brief statement and no background information.
This matter strongly suggests that Magistrate Brazil was conspiring
with U.S. attorneys, Postal Inspector David Dirmeyer, and unknown
judges in the Western District of Tennessee to deprive the Ninth
Circuit of its rightful jurisdiction over matters occurring within its
district, and to deprive my clients of their civil rights.
If the Court of Appeals were to find such a conspiracy it would
have serious implications, and represent racketeering within the
meaning of RICO statutes in that their co-conspirator, Agent David
Dirmeyer, has also engaged in intimidation of witnesses, extortion,
attempted blackmail, and perjury. Further, Agent Dirmeyer referred to
his mailing of unsolicited child pornography to unsuspecting persons
as "standard investigative procedure."
This case has national significance if, in fact, the federal
magistrates in this country are routinely violating the civil rights
of litigants in this fashion, conspiring with postal inspectors to
forum shop for the most conservative jury pools in the country, and
allowing the affiants to commit blatant perjury in the course of their
affidavits. I believe the clear intent of all of these proceedings
was to turn my client's bulletin board into a government asset so that
they could use the bulletin board to entice the members with child
pornography.
In support of the above serious accusation, I cite the fact that
David Dirmeyer threatened Robert Thomas that he would suffer serious
retaliation should he blow Agent Dirmeyer's ("Lance White's") cover on
the bulletin board. This indictment and arrest followed open
discussion on the board about Lance White when Thomas did not give in
to this extortion. In my opinion, Agent Dirmeyer did not intend a
criminal prosecution and, therefore, tried to create only enough of a
paper trail to intimidate Mr. Thomas and make his business a
"government asset" in their search for alleged pedophiles. This is
the only reasonable conclusion for the following reasons:
1. A citizen who stumbled on something they deemed offensive on an
adult bulletin board is not likely to call a postal inspector. But
Agent Dirmeyer describes someone reporting their involvement in a
serious felony (theft of computer services) to the postal
inspectors in his affidavit.
2. Agent Dirmeyer already had copies of tapes sought under the search
warrant (and had allegedly ordered from Mr. Thomas' board), and
could have copied everything necessary for prosecution from his
remote location in Tennessee. The only things he could not copy
remotely were the electronic mail and member names and passwords.
The reasons for the search warrant were to intimidate the
Thomases, "frame" them with child pornography for further
leverage, and to take the bulletin board off-line for five days so
Agent Dirmeyer could extract member names, account passwords, and
e-mail. It should be noted that Agent Dirmeyer still has the
e-mail.
3. Agent Dirmeyer purports in his affidavit to have informed
Magistrate Brazil of my clients' publisher status under 42 U.S.C.
Section 2000 (aa) and the email content of the computer under 18
USC 2703 et seq. If so, in effect he told Magistrate Brazil that
he would be committing two felonies--by title and section
number--and he still got his search warrant.
4. There are several adult bulletin boards in Tennessee with similar
(if not identical material) and Agent Dirmeyer chose to act in the
Northern District of California.
5. The Thomases were subject to a similar search and seizure in 1992
by San Jose police acting alone, who examined the system and
returned it in exchange for a promise not to sue them or Santa
Clara County civilly. No items were found to be obscene by the
police or Santa Clara County district attorneys. This fact was
known by Agent Dirmeyer and even Magistrate Brazil.
6. Agent Dirmeyer made threats to Robert Thomas in his attempt to
preserve his "Lance White" cover as a member of the BBS.
7. Magistrate Brazil's office acted as if the affidavit itself was
sealed when, in fact, the application for sealing, and his own
words in doing so, only sealed the exhibits (deemed obscene by
Agent Dirmeyer). I am also concerned about his not releasing the
affidavit (Sua Sponte) until January 27th, 1994 (the day after the
indictment and 17 days after the search).
8. There is also the fact that not so much as a docket sheet was
available in the interim, as well as the sudden change of attitude
by the Magistrate's secretary when I called to inquire as to the
whereabouts of the file (after she discussed the matter with
whoever interrupted our phone conversation).
9. Last, but not least, the initial case number, (allegedly stamped
on the search warrant by the Clerk of the Court), was 3005-WDB.
Once the file had become unsealed, the case number became
30005-WDB.
These factors leave room for and at least suggest that an ex-post-
facto paper trail was created after a bluff had gone bad. I believe
the court must investigate these irregularities to protect its own
integrity. At a bare minimum we have extortion and forum shopping by
Agent Dirmeyer with the participation of federal magistrates in
Northern California and the Western District of Tennessee. I am
appalled as an American at the thought of this. I am equally appalled
if an agent's sending child pornography to someone "without his
knowledge" (Dirmeyer's own words describing the pornography) has
become standard practice for postal inspectors.
Sincerely,
Richard D. Williams
Attorney at Law
[a posting I made to the net on 3/14/94]
By the time this gets distributed to the net, Robert Thomas (the
sysop of Amateur Action BBS), his wife, and their lawyer will be on
the way to Memphis for their first hearing on obscenity charges. The
charges stem from a postal inspector getting an account on Robert's
BBS, downloading files (and ordering tapes) the inspector believes to
be obscene in that part of the country. I expect Robert to eventually
be bled dry by legal and travel expenses.
I have *real* problems with the laws being applied this way.
With current technology it not possible for a sysop to control or
even identify the location from which BBS members call.
It is almost as difficult for *anyone* to determine what is
considered obscene in a given location. Such a research project would
take years of lawyer time, and would still be only a guess. It would
hinge on East Nowhere allowing B&D, South Backwater allowing this plus
golden showers, and West Prudence allowing neither, but not being
concerned with animal pix. North Nowhere might allow anything,
including kiddy porn morphed from pictures of adults, and computer
generated pictures of sex with space aliens.
If a given local wants to impose restrictions, I don't have as
much of a problem with that, since people can always move somewhere
more liberal. But imposing local restrictions on a BBS 2000 miles
away is not logical--because it imposes an *impossible burden* on a
sysop.
"You are responsible for knowing what you download (or order) is
legal" was argued by the government against the people who downloaded
child pornography from Denmark in "operation longarm" a year or two
ago. [That BBS was taken over by the U.S. Government and the 140 or
so people who called there were traced. Many of them--the ones who
did not encrypt or erase what they downloaded--were busted, and now
the taxpayers are paying to keep them in jail, while the violent
offenders are let out for lack of space.]
Given this history of imposing responsibility on the person
downloading, it seems inconsistent (to say the least) for the Federal
folks to impose the standards of the least liberal places in the
country on a *San Francisco area* BBS. (San Francisco is, after all,
"Babylon on the Bay.)
In the AA BBS case, two years ago the local police had his
computer for five weeks. They looked at every .gif and give it back--
which strongly implies that they considered the material on it within
community standards. (They found no child pornography, which seems to
be the only thing considered illegal here. Cops do not, after all,
return contraband!). The postal inspector and the U.S. Attorneys do
not seem all that sure of themselves this time either, since (after
keeping the BBS for five days) they gave it back with the intent that
the BBS continue operating. They have not asked the sysop to refuse
memberships from Tennessee, or to remove any of the .gif files they
considered obscene. (I think the gifs are just silly.)
I am torn between thinking of these events as being part of a
Memphis political attention play and an attempt to turn AA BBS into a
"government asset" like the one in Denmark from which the postal
inspectors could troll for pedophiles. They *did* get the email,
member names, and passwords.
[Do any of you want to guess how often Memphis gets mentioned in
the national press? It turns out to be fewer than a dozen times a
year if you discount articles about Elvis/Graceland. One of the
biggest events of all time there was the Linda Lovelace/Deep Throat
trials--which cost about 10 million dollars and accomplished nothing
except some publicity for the U.S. Attorneys involved.]
In spite of being extremely busy as the new president of Xanadu
Operating Company (Hypertext) and doing a lot of analysis and
programming, I have been assisting with the defense on this case. I
am *very* annoyed by these proceedings because they are cutting into
my productivity. I am more than open to ideas and help from people on
the net to generate political pressure on the feds to get them to back
off from this stupid test prosecution.
One possible approach might be for someone to inform the new U.S.
Attorney in Memphis (Veronica Coleman) about the case-- which I bet is
being run by subordinate Dan Newsom without her even knowing about it.
The investigation was started under her predecessor, Republican Ed
Briant, who rose to prominence in the Deep Throat prosecutions. I
strongly doubt that Veronica Coleman (Democrat and graduate of Howard
University) would put a (very costly) effort to suppress a
*California* adult BBS high on a list of priorities for her office.
Being associate with the case makes me talking to her of questionable
propriety, but there must be someone out in netland who could. The
local NAACP office (901) 521-1343 might provide her phone number if
someone with a reasonable level of academic or other prestige were to
ask.
On the other hand, she might be fully behind the prosecution.
Thanks in advance for help/ideas any of you can contribute.
Keith Henson
(408) 972-1132
