Mistake by FBI in Porn Case Leads Priest to Plead Guilty on Lesser Count
Child Pornography Charge Is Changed to Possession of Obscene Materials
By Peter Shinkle
St. Louis Post-Dispatch
February 4, 2003
A priest accused of possessing child pornography took advantage of an apparent error by the FBI to obtain a reduced sentence Monday, although he still must spend three months in confinement.
His lawyer warned that the FBI's mistake may have an impact nationwide on the "Candyman" ring crackdown, although the top federal prosecutor here said many cases should escape the taint.
The Rev. John P. Hess, former pastor of Most Sacred Heart Catholic Church in Florissant, was sentenced to probation and fined $5,000. He also must spend three months in a halfway house.
Hess, 57, pleaded guilty in May on one count of possessing child pornography. He admitted that his computer, which the FBI seized, contained multiple images of it. With that plea, he faced a prison term of up to 27 months.
But after his attorney complained that the FBI had used a false statement to obtain a search warrant, prosecutors agreed to let Hess withdraw his child pornography plea and plead guilty instead to possession of obscene materials.
For the new charge, which makes no mention of child pornography, he faced a penalty of up to six months in jail. U.S. District Judge Richard Kyle ordered probation plus 90 days in a community correctional center.
Defense attorney Richard Sindel said the search warrant problem could lead to challenges by other Candyman defendants. The FBI has said as many as 700 people were under scrutiny in the United States.
The FBI seized Hess' computer from the church rectory in March as it cracked down on the Candyman child pornography ring, arresting about 100 people nationwide.
"I think it will have significance in all of them," Sindel said Monday.
But Ray Gruender, the U.S. attorney for eastern Missouri, said, "Don't make the mistake of thinking that this jeopardizes all the other cases, because it does not."
For example, Gruender said, some of the defendants consented to searches, so search warrants weren't always used.
Also, some defendants had participated in another Internet group, "Girls 12-16," and prosecutors believe the warrants in those cases are not vulnerable to the challenge used by Hess, according to Gruender.
At the core of the dispute is FBI agent Geoffrey Binney, of Houston, who started the investigation of Candyman, a group hosted on the servers of eGroups, a company later acquired by Yahoo.
Binney prepared a description of how he joined the group. That language was used by agents in St. Louis and elsewhere in January last year as they applied for search warrants to examine the computers of suspected Candyman participants.
Binney testified in St. Louis against a different defendant last year that at the time he joined, he was not offered an option not to receive e-mails automatically from the group.
But an examination of Yahoo records later showed that when Binney joined, he was, in fact, offered that option.
Sindel claimed that Binney's mistake was either deliberate or reckless. But Gruender said Monday that Binney still insists he did not recall seeing the option.
It is important because the FBI affidavits claimed that any member's e-m ails containing child pornography were automatically redistributed to all the other members.
But if they could opt out, it undercuts the probability that they received illegal materials, defense lawyers have contended.
Sindel, arguing to withdraw Hess' plea, said that without the false information, a judge would not have had probable cause to issue a search warrant. He also asked for a hearing to argue that evidence seized was thus inadmissible.
Gruender said prosecutors chose to compromise and accept the obscenity plea rather than fight and possibly lose.
"We know there was child pornography there because he pled guilty to it, but the compromise here - to avoid the risk that he would walk away scot-free - was that he would plead to the felony of obscene material," the U.S. attorney said.
Meanwhile, a federal judge in St. Louis has granted a request by another Candyman defendant, Gregory Strauser, to withdraw his plea on the same basis.
In that case, U.S. District Judge Catherine Perry set a hearing Feb. 14 to consider whether to throw out evidence seized in the FBI's search of Strauser's home and computer.
Hess could not be reached for comment after his sentencing Monday. Sindel said, "I know he feels a great deal of remorse for letting people down and for the difficulties people have experienced as a result of this mess."
Hess, of the 12000 block of Bellefontaine Road, remains a priest, although he has no priestly duties, said Jim Orso, spokesman for the Roman Catholic Archdiocese of St. Louis.
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