NY- Data in child porn case trashed

9-25-2009 New York:

The FBI has destroyed evidence that federal authorities allege could help prove a Henrietta man traded child pornography online and induced a teenager to take sexually explicit photographs of herself.

The Henrietta man, Jeffrey Swartz, did in fact plead guilty to trying to induce a 15-year-old girl to photograph herself in "sexually explicit conduct."

However, U.S. District Judge David Larimer in August allowed Swartz, 27, to withdraw the plea after questions arose about whether Swartz truly admitted guilt at his October 2008 plea hearing.

In the interim between the 2008 plea and Larimer's August decision to allow Swartz to back out of the agreement, the FBI destroyed a computer tower and two hard drives containing the evidence in the case, according to court papers.

Now, federal authorities are asking Larimer to reconsider his decision to let Swartz withdraw his plea.

Otherwise, Swartz's defense could challenge at trial the destruction of evidence, Assistant U.S. Attorney Tiffany Lee wrote in a court filing.

She wrote that "defense counsel will likely raise this issue during the trial to challenge the investigation and procedures used to preserve the evidence."

Federal authorities say they have a replica image of the evidence, but they would be hamstrung at trial if they must concede they destroyed the original proof.

Prosecutors would be restricted at trial from mentioning that Swartz once did plead guilty to the charges.

"There will be a stilted explanation to the jury" about the destruction, said Acting U.S. Attorney Kathleen Mehltretter.

The evidence was destroyed more than six months after Swartz's guilty plea and after Larimer initially denied a request to withdraw the plea. Mehltretter said authorities commonly destroy evidence once cases appear resolved.

"We cannot hang onto everything," she said. "Pornographic images are contraband, like drugs.'

Typically, she said, evidence destruction "would be done after sentencing," Mehltretter said. "In this case it appears to have been done a little bit earlier."

Maureen Dempsey, spokeswoman for the Buffalo FBI office, declined to comment "because it is a pending matter before the courts."

Swartz's current lawyer for the federal case, Jeffrey Wicks, also declined to comment. Wicks is Swartz's fifth lawyer for the federal case and successfully argued in August that Swartz should be permitted to withdraw the plea.

Federal authorities allege they have proof that Swartz exchanged child pornography online with an FBI agent who was working undercover. They say they also have evidence through e-mail exchanges of the interaction between Swartz and the teenage girl.

Swartz claims in court papers that the evidence has been tampered with and fabricated to make it appear he looks guilty.

Swartz also has pleaded guilty to a rape charge in Monroe County Court — admitting that, in an act separate from the federal charge, he had sex with a teenager younger than 17. He also is seeking to withdraw that guilty plea.

Swartz is now in federal custody awaiting trial.

A conference about the federal case will be held Monday before Larimer. ..Source.. by Gary Craig • Staff writer