Orange County's Ronald Reagan Federal CourthouseEXPAND
Orange County's Ronald Reagan Federal Courthouse
R. Scott Moxley

FBI Agent Admits Best Buy-Recovered Photo 'Not Exactly' Child Porn in Case Against Doctor

An FBI agent testified today in a Southern California child-pornography case that the photograph used to launch the 2012 investigation, including a raid on a prominent Orange County physician's home, didn't meet the federal definition of such an offense after all.

Agent Tracey Riley admitted to U.S. District Court Judge Cormac J. Carney the so-called "Jenny" image found by a Best Buy Geek Squad technician, who doubled as a paid agency informant, "wasn't child pornography by itself."

Riley tried to recover by explaining that the picture, which contains no sex or genital angles, originated from a "well-known" child-pornography video.

But the answer didn't impress James Riddet, a San Clemente-based attorney for defendant Mark Rettenmaier.

Riddet pressed the huge legal point, asking the officer if she understood the definition of child pornography when she wrote FBI reports accusing his client, who has taught medicine at USC and UCLA, of violating the federal statute.

Riley answered affirmatively and reasoned that while the "Jenny" shot was "not exactly child pornography [as defined by law]," she'd labeled it kiddie porn for law-enforcement purposes against the doctor "because [the youngster] is a known victim" of the crime.

According to an FBI report, the photo's content is of "a fully nude, white, prepubescent female on her hands and knees on a bed, with a brown choker-type collar around her neck."

Riddet noted five depiction categories an image must fall into in order to be qualified as child porn—intercourse, bestiality, masturbation, sadomasochistic abuse or lascivious exhibition of genitals—and asked Riley if "Jenny" met any requirement. On the first three and fifth categories, the agent agreed they did not apply. But she claimed the picture "could be" considered S&M abuse.

Said Riley, "I think it's right on the edge [of that category]" because of the "brown collar" around the girl's neck.

The defense lawyer demanded to know what prior federal child-pornography prosecutions would support her definition.

She couldn't name one.

This special, pretrial hearing inside the Ronald Reagan Federal Courthouse is designed to give Carney evidence to accept or reject pending defense-suppression motions accusing the FBI of violating Rettenmaier's constitutional rights against warrantless searches through its arrangement with the Geek Squad, as well as underhandedly pushing the case forward by filing materially false statements.

Assistant United States Attorney M. Anthony Brown told the judge this morning that if the FBI erred in any reports, the mistakes were not intentionally misleading.

The crux of the dispute is whether agents tried to trick a magistrate judge into approving the raid on Rettenmaier's Laguna Niguel home by falsely claiming "Jenny" equalled child porn and by critically omitting the fact the image was recovered from an unallocated section of the computer.

Months before Rettenmaier took his nonfunctioning Hewlett Packard to a Best Buy in Mission Viejo in November 2011, justices at the U.S. District Court of Appeals for the Ninth Circuit overturned a child-porn-possession case because the evidence had been taken from the unallocated—or trash—portion of the device.

Federal law requires proof that a defendant knowingly possessed the illegal material, but computer experts say it is exceptionally difficult, if not close to impossible, for law enforcement to learn the answers to key questions pertaining to who, when, why and how the image found its way to the unallocated space.

As its first witness, the defense called Tucson-based computer expert Tami Loehrs, who has created a four-minute video demonstrating how easily illicit images can land in unallocated space without the owner knowing they exist.

The film, which Carney studied, shows a user surfing websites such as CNN.com, finding an interesting story about dogs, performing a Google search for dog images and accidentally opening a link to, say, SexyDogs.com.

In the example, six porno pictures displayed quickly on the user's computer screen before he or she discovers the mistake and closes the link.

According to Loehrs, during that 60 seconds of Internet use, sites placed more than 1,300 images—including dozens and dozens of pornography—on the computer, images the user never saw and would never have known existed if the cache was simply emptied.

Loehrs also testified that she was aware of another case in which Best Buy sold a family a supposedly new computer that cops later claimed contained child porn; a forensic investigation discovered the computer had been refurbished from a prior user.

The expert, who has participated in 107 trials, also noted that sophisticated hackers have been known to employ "Trojan horse" malware that can direct someone's computer to download child porn, then redirect the items to their own computers without innocent victims learning they've been duped.

During cross examination, prosecutor Brown attempted to raise questions about Loehrs' credibility. He entered into evidence seven-year-old screen grabs from her Facebook account that mocked FBI competence. Brown alleges her words demonstrate she can't be trusted to offer unbiased testimony against the agency. But the witness laughed off the accusation, saying she'd been joking on her private account with family and friends.

The federal prosecutor did get Loehrs to correct one of her declarations in the case. She'd written that it was "impossible" to ever learn metadata from files in unallocated space—the who, when and why information about a file's history. Pressed, she agreed Brown had a point.

"'Impossible' was a bad choice of words," she conceded. "I would say that word was a little strong, [but] it's improbable."

Testimony resumed this afternoon.

Go HERE to see OC Weekly's exclusive, Jan. 4, 2017, report on the case.

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