The opinion of the court was delivered by: Arthur D. Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
This case involves charges that the defendant Benedetto Fantauzzi ("Fantauzzi" or the "defendant") possessed child pornography in violation of 18 U.S.C. § 2252A. Presently before the Court is a motion by the defendant to withdraw his plea of guilty pursuant to Rule 32(e) of the Federal Rules of Criminal Procedure.
On March 13, 2002, the defendant was indicted on nine counts of possession of child pornography. The indictment stemmed from the government's recovery of numerous images of child pornography from the defendant's computers and evidence that the defendant had visited and become a member of a child pornography-related group on the Internet entitled "The Candyman". The government seized the defendant's computers pursuant to a search warrant issued by United States Magistrate Judge Joan M. Azrack on November 9, 2001. This search warrant was part of a nationwide investigation entitled "Operation Candyman" which investigated members of the Candyman E-group.
In early January 2001, Special Agent Geoffery S. Binney of the Federal Bureau of Investigation (the "FBI") joined the Candyman E-group in an undercover capacity. The Candyman E-group web site stated:
This group is for People who love kids. You can post
any type of messages you like too or any type of pics
and vids you like too. P.S. IF WE ALL WORK TOGETHER WE
WILL HAVE THE BEST GROUP ON THE NET.
The Candyman E-group had various features: Messages, Files, Polls, Post, Links and Chat. The Files section contained an area where members could post images and video files for other members to download. The Files section permitted members to upload images to the Candyman E-group web site and download images from the web site. The Message section appeared to store all messages and files transmitted to the Candyman E-group.
From January 2, 2001 to February 6, 2001, Agent Binney was a member of the Candyman E-group. During this time, Agent Binney found and downloaded about 100 images and video clips that members had uploaded to the Candyman E-group web site. These images and video clips included images of: (1) prepubescent minors engaged in sexual conduct; (2) nude minors' genitalia; and (3) child erotica, which showed minors posed in provocative ways. Agent Binney also received approximately 498 e-mail messages as a result of his membership in the Candyman E-group. About 288 of these e-mails contained computer files attached with about 105 of them containing child pornography and the remaining 183 depicting child erotica.
In late January 2001, a federal grand jury subpoenaed Yahoo for information including, among other things, a list of the members of the Candyman E-group. Shortly thereafter, Yahoo responded with a list of about 3,397 e-mail addresses of persons who were Candyman E-group members during January 2, 2001 and February 6, 2001.
B. The Fantauzzi Search Warrant Affidavit
On November 9, 2001, FBI Agent Austin P. Berglas applied for and secured a search warrant for a number of locations, including the defendant's residence at 810 Southside Avenue, West Islip, New York. In his affidavit submitted in support of the search warrant, Agent Berglas presented information based on his own personal knowledge and information provided by other agents in New York and Houston. In his affidavit, Agent Berglas included the information concerning the background of the Candyman E-group and Agent Binney's investigation.
Agent Berglas also noted that in response to the above-noted federal grand jury subpoena, Yahoo provided the e-mail address of Letts49@aol.com as one of the Candyman E-group members; that the AOL subscriber account for the e-mail was paid by the defendant at the above-noted address; that the defendant was a member of the Candyman E-group from January 11, 2001 to February 6, 2001; and that Agent Binney's records indicated that the defendant received about 139 images of child pornography, about 77 images of child erotica and 10 videos of child pornography.
C. The Fantauzzi Prosecution
As stated above, on March 13, 2002, the defendant was indicted on nine counts of possession of child pornography in violation of 18 U.S.C. § 2252A. On July 3, 2002, the government sent a letter to counsel for the defendant informing him that there was an error in the affidavit submitted to Judge Azrack which secured the search warrant executed at the defendant's home. In particular, the government noted that the statement "[e]very Candyman E-Group member on the Candyman E-group e-mail list automatically received every e-mail message and other file transmitted to the Candyman ...