Best Buy Geek Squad Informant Use Has FBI on Defense in Child-Porn Case

R. Scott Moxley | Posted on

FBI agents and prosecutors usually strut inside Santa Ana’s Ronald Reagan Federal Courthouse, knowing they’ve focused the wrath of the criminal-justice system on a particular criminal. But an unusual child-pornography-possession case has placed officials on the defensive for nearly 26 months. Questions linger about law-enforcement honesty, unconstitutional searches, underhanded use of informants and twisted logic. Given that a judge recently ruled against government demands to derail a defense lawyer’s dogged inquiry into the mess, United States of America v. Mark A. Rettenmaier is likely to produce additional courthouse embarrassments in 2017.

Rettenmaier is a prominent Orange County physician and surgeon who had no idea that a Nov. 1, 2011, trip to a Mission Viejo Best Buy would jeopardize his freedom and eventually raise concerns about, at a minimum, FBI competency or, at worst, corruption. Unable to boot his HP Pavilion desktop computer, he sought the assistance of the store’s Geek Squad. At the time, nobody knew the company’s repair technicians routinely searched customers’ devices for files that could earn them $500 windfalls as FBI informants. This case produced that national revelation.

According to court records, Geek Squad technician John “Trey” Westphal, an FBI informant, reported he accidentally located on Rettenmaier’s computer an image of “a fully nude, white prepubescent female on her hands and knees on a bed, with a brown choker-type collar around her neck.” Westphal notified his boss, Justin Meade, also an FBI informant, who alerted colleague Randall Ratliff, another FBI informant at Best Buy, as well as the FBI. Claiming the image met the definition of child pornography and was tied to a series of illicit pictures known as the “Jenny” shots, agent Tracey Riley seized the hard drive.

Setting aside the issue of whether the search of Rettenmaier’s computer constituted an illegal search by private individuals acting as government agents, the FBI undertook a series of dishonest measures in hopes of building a case, according to James D. Riddet, Rettenmaier’s San Clemente-based defense attorney. Riddet says agents conducted two additional searches of the computer without obtaining necessary warrants, lied to trick a federal magistrate judge into authorizing a search warrant, then tried to cover up their misdeeds by initially hiding records.

To convict someone of child-pornography charges, the government must prove the suspect knowingly possessed the image. But in Rettenmaier’s case, the alleged “Jenny” image was found on unallocated “trash” space, meaning it could only be retrieved by “carving” with costly, highly sophisticated forensics tools. In other words, it’s arguable a computer’s owner wouldn’t know of its existence. (For example, malware can secretly implant files.) Worse for the FBI, a federal appellate court unequivocally declared in February 2011 (USA v. Andrew Flyer) that pictures found on unallocated space did not constitute knowing possession because it is impossible to determine when, why or who downloaded them.

“The government concedes it presented no evidence that Flyer knew of the presence of the files on the unallocated space of his Gateway computer’s hard drive,” declared judges at the United States Court of Appeals for the Ninth Circuit before overturning that conviction. “The government also concedes it presented no evidence that Flyer had the forensic software required to see or access the files. . . . Deletion of an image alone does not support a conviction for knowing possession of child pornography on or about a certain date within the meaning of [federal law]. No evidence indicated that Flyer could recover or view any of the charged images in unallocated space or that he even knew of their presence there.”

That ruling, made a year before the launch of the Rettenmaier case, left the FBI in a quandary. Agents noted among themselves in an email thread that “our [assistant United States attorney] won’t charge on carved images.” In hopes of overcoming this obstacle, they performed a sleight-of-hand maneuver, according to Riddet. The agents simply didn’t alert Judge Marc Goldman that the image in question had been buried in unallocated space and, thus, secured deceitful authorization for a February 2012 raid on Rettenmaier’s Laguna Niguel residence. “The omission was critical because the mere presence of child pornography in a computer’s unallocated space is insufficient to establish knowing possession as a matter of law,” Riddet wrote in a November 2016 brief. “And the unwitting possession of child porn will not support probable cause [for either a raid or charges].”

But Assistant U.S. Attorney M. Anthony Brown, who specializes in sex-crime cases and is handling prosecution duties, claims the omission was not legally important or malicious. Brown believes the “Jenny” image shouldn’t be suppressed because it’s only “wild speculation” that the Geek Squad performed searches at FBI instigation. To him, the defense is pushing a “flawed” theory slyly shifting focus to innocent FBI agents; he maintains that Rettenmaier—who is smart enough to have taught medicine at USC and UCLA—was dumb enough to seek Best Buy recovery of all of his computer files after knowingly storing child porn there.

The case is presently so tenuous that Riddet, who has 47 years of court experience, believes the Geek Squad search was extracurricular to required repairs and suggests that federal officials sloppily pushed for an unnecessary arrest. He has demanded to know if agents showed the photo evidence to Assistant United States Attorney Anne Gannon before she initiated charges. The defense lawyer is suspicious because FBI records reviewed by OC Weekly contain discrepancies about the picture and offer conflicting narratives about the agency’s actions against his client. He also wants additional records, which he believes have been hidden.

On Dec. 19, 2016, U.S. District Court Judge Cormac J. Carney highlighted the discrepancies, noted odd memory losses among agents, and called Brown’s arguments for blocking Riddet’s inquiries “unavailing” and “perplexing.” Carney ordered government officials to conduct a new, “diligent” search for evidence and compelled Gannon’s future testimony about whether she saw the “Jenny” image before approving the search warrant.

But the biggest issue remains whether Geek Squad technicians acted as secret law-enforcement agents and, thus, violated Fourth Amendment prohibitions against warrantless government searches. Riddet claims records show “FBI and Best Buy made sure that during the period from 2007 to the present, there was always at least one supervisor who was an active informant.” He also said, “The FBI appears to be able to access data at [Best Buy’s main repair facility in Brooks, Kentucky] whenever they want.” Calling the relationship between the agency and the Geek Squad relevant to pretrial motions, Carney approved Riddet’s request to question agents under oath.

The defense lawyer believes the case was built on a false premise that should frighten all Americans. “While it may be that ‘Jenny’ appears in other photos which are child pornography, none of those photos, if indeed they do exist, were observed on [Rettenmaier’s] hard drive,” Riddet observed. “The critical point here is that the image which was viewed and described in the search warrant is not an image of child pornography.”

That assertion will be debated at future hearings.

[UPDATE, Jan. 4, 5:20 p.m.: Jeff Haydock, a Best Buy vice president for communications, provided the Weekly a reaction. “Best Buy is required by law to report the discovery of certain illegal material to law enforcement, but being paid by authorities to do so would violate company policy,” Haydock said. “If these reports are true, it is purely poor individual judgement. If we discover child pornography in the normal course of servicing a computer, phone or tablet, we have an obligation to contact law enforcement. We believe this is the right thing to do, and we inform our customers before beginning any work that this is our policy.”] 

 

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