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