The opinion of the court was delivered by: MALCOLM MUIR, Senior District Judge
THE BACKGROUND OP THIS ORDER IS AS FOLLOWS:
On December 5, 2001, a Grand Jury sitting in the Middle District of
Pennsylvania returned a one-count indictment charging Eric Shields with
possession of child pornography in violation of 18 U.S.C. § 2252A(a)
(5)(B) and 2252A(b)(2).
The charges against Shields arose out of his subscribing to two e-mail
groups or websites which dealt in child pornography.*fn1 The record in
this case reveals that on January 2, 2001, Shields subscribed to the
"Candyman" website using as his subscriber's name and e-mail address
LittleLolitaLove@aol.com. The purpose of the "Candyman" website, as
stated on the website, was as follows:
This group is for People who love kids. You can
post any type of messages you like too (sic) or
any type of pics and vids you like to (sic). P.S.
IF WE ALL WORK TOGETHER WE WILL HAVE THE BEST
GROUP ON THE NET. The theme of the "Candyman" website was echoed by a second website
which Shields joined, the "Girls 12-16," which stated that its purpose
was as follows:
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. . . . This is the place to be if you
love 11 to 16 yr olds. . . .
Shields subscribed to this second website on February 6, 2001,
using the same name and e-mail address.
On November 29, 2001, agents of the FBI executed a search warrant at
Shields's residence and confiscated his computer. A subsequent review of
that computer disclosed that it contained hundreds of images of minor
children engaged in sexually explicit conduct, including images which
reflected cruel sexual abuse and mistreatment of minors. The computer
also contained graphic proof of Shields's receipt of pornographic e-mails
in the form of numerous saved e-mails. Furthermore, agents recovered a
cache of binders and notebooks filled with child pornography.
At the time of the search agents also had an opportunity to interview
Shields, After waiving his Miranda rights, Shields agreed to be
interviewed by investigators and provided investigators with a
handwritten statement in which he acknowledged viewing, obtaining,
raceiving and possessing child pornography through his computer from the
Internet. On February 27, 2002, Shields entered a plea of guilty to the one-count
indictment. By order of February 28, 2002, the court directed that a
presentence report be prepared and scheduled a presentence conference for
May 30, 2002.
On May 20, 2002, Shields filed a motion to continue the presentence
conference for 45 days. Shields gave the following three reasons
justifying a continuance of the presentence conference: (1) the evidence
again, 3t Shields needed to be reviewed in light of a recent Supreme
Court case which held that it is not illegal to possess virtual images of
child pornography; (2) counsel's seminar and vacation schedule; and (3)
the need to obtain and review a psychological evaluation of Shields. The
Government concurred in the motion. By order of May 21, 2002, we granted
the motion and the presentence conference was continued to July 15, 2002.
On June 7, 2002, Shields filed a motion to continue the presentence
conference scheduled for July 15, 2002, for 60 days. Shields gave the
following two reasons justifying a continuance of the presentence
conference: (1) a neurological evaluation of Shields needed for the
completion of the psychological evaluation could not be scheduled until
July 16, 2002; and (2) counsel for Shields was scheduled to participate
in a workshop on "The Electronic Courtroom: Law and Technology Merge" in
Boston, Massachusetts, from August 12, 2002, through August 14, 2002, and
attend a family wedding in Greenfield Massachusetts from August 15, 2002,
through August 18, 2002, The Government concurred in the motion. By order of June 7, 2002, we granted the motion and the
presentence conference was continued to September 17, 2002.
On September 11, 2002, Shields filed a motion to continue the
presentence conference scheduled for September 17, 2002, for at least 60
days. Shields gave the following two reasons justifying a continuance of
the presentence conference: (1) the investigation relating to whether
Shields possessed images of identifiable children engaged in sexually
explicit conduct had not been completed; and (2) alleged inaccuracies in
the Search Warrant Affidavit utilized to obtain a search warrant for
Shields' residence had been discovered which needed to be investigated.
The Government concurred in the motion. By order of September 11, 2002,
we granted the motion and the presentence conference was continued to
November 19, 2002.
On November 8, 2002, Shields filed a motion to continue the presentence
conference scheduled for November 11, 2002, for at least 60 days. Shields
gave the following three reasons justifying a continuance of the
presentence conference: (1) to obtain and review discovery materials
which had not yet been provided by the Government; (2) to request
additional discovery materials in response to recent disclosures by the
Government; and (3) to determine whether to file appropriate motions
seeking suppression of evidence. The Government concurred in the motion.
By order of November 12, 2002, we granted the motion and the presentence
conference was continued to January 21, 2003. On January 16, 2003, Shields filed a motion to continue the presentence
conference scheduled for January 21, 2003, sine die. Shields gave the
following reason justifying a continuance of the presentence conference:
to afford defense counsel ample opportunity to investigate and research
the propriety of filing a suppression motion concerning the search
conducted pursuant to the search warrant issued on an affidavit
containing factual inaccuracies. The Government concurred in the motion.
By order of January 16, 2003, we granted the motion and the presentence
conference was continued sine die. Furthermore, defense counsel was
directed to file a status report every 60 days until the presentence
conference was rescheduled or another appropriate motion was filed.
Status reports were filed on April 3, May 22, and July 22, 2003. On
October 15, 2003, defense counsel filed a fourth status report which
stated in relevant part as follows:
2. Shields' (sic) has been reporting in his prior
status reports that he expected to file a Motion
to Suppress Evidence, but that the government is
still in the process of gathering additional
discovery information which will impact on a
Motion to Suppress Evidence,
3. Specifically, Shields' (sic) seeks
documentation showing the e-mail delivery option
which he selected from the Candyman website.
4. To date, Shields has not received any
documentation showing the e-mail delivery option
which he selected.
5. First Assistant United States Attorney Martin
Carlson and the undersigned continue to be engaged
in discussions regarding the disposition of the
instant case. By order of October 16, 2002, we issued an order establishing "a
procedure to bring this matter to a conclusion." The order authorized
Shields to file on or before December 16, 2003, a motion to withdraw his
guilty plea. It further provided that if no such motion was filed a
presentence conference would be held on Thursday, December 18, 2003, at
On December 16, 2003, Shields filed a motion entitled "Eric Shields'
(sic) Motion to File An Addendum to the Plea Agreement to Consider
Shields' (sic) Previously Entered Guilty Plea A Conditional Plea Pursuant
to Federal Rule of Criminal Procedure 11(a)(2)." In paragraph 34 through
37 of the motion Shields stated as follows:
34. Rather than withdraw his guilty plea, Shields
wishes to amend his guilty plea to a conditional
plea to permit him to challenge the
constitutionality of the search warrant and to
maintain the position in which he was as of the
discovery of the inaccuracy in the search warrant
35. The parties wish to file an Addendum to the
Plea Agreement, setting forth that Shields' guilty
plea should be considered a conditional plea of
guilty and that Shields may challenge the
constitutionality of the search warrant before
this Honorable Court and on appeal, if necessary.
36. The parties seek until January 15, 2004, to
file an executed Addendum to the Plea Agreement
and Shields seeks until February 15, 2004 to file
a motion related to the constitutionality of the
37. The government concurs in this motion.
On December 17, 2003, we issued an order granting the motion. On
January 12, 2004, the Government and Shields filed an addendum to the
plea agreement which stated in relevant part as follows: 1. Following the entry of the guilty plea in this
case, the parties received information regarding
potential legal issues relating to the search
warrant executed in this case. In order to
preserve the defendant's right to litigate these
issues, pursuant to Rule 11(a)(2) of the Federal
Rules of Criminal Procedure, with the approval of
the court and the consent of the government, the
parties agree that the defendant's guilty plea
should be considered a conditional plea of guilty
to the charge described in the plea ...