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									               IN THE UNITED STATES DISTRICT COURT

             FOR THE NORTHERN DISTRICT OF GEORGIA

                            ATLANTA DIVISION


UNITED STATES OF AMERICA )
                         )
    v.                   )                  CASE NO. 1:04-CR-249
                         )
GREGORY C. KAPORDELIS,   )
                         )
         Defendant.      )



                  DEFENDANT’S OBJECTIONS TO THE
                   REPORT AND RECOMMENDATION
                       OF THE MAGISTRATE


      Defendant Gregory Kapordelis is filing three separate objections to the

Reports and Recommendations of the Magistrate: (1) This pleading, which is the

Objection to the R&R denying the Motion to Suppress based on the Franks v.

Delaware argument and the absence of probable cause to search Defendant’s home

in Gainesville, Georgia; (2) Objections to the R&R denying the Motion to

Suppress one computer on the basis of the Border Search exception and the Search

Incident to Arrest exception to the search warrant requirement; and (3) Objection

to the R&R which denied the Defendant’s motion to immediately disclose the

identity of the alleged victims in Counts ten through thirteen of the superseding



                                        1
indictment, and the related issues concerning the government’s allegations of

misconduct by the defense investigator, Alexander Rodin.



                               INTRODUCTION

      On April 12, 2004, Dr. Kapordelis was arrested at JFK Airport in New York

at approximately 4:00 P.M and charged with a violation of 18 USC § 2423. He

was traveling from St. Petersburg, Russia to Atlanta, Georgia.

      That same day, while Dr. Kapordelis was being detained in New York,

federal officers executed search warrants on his home and his medical practice in

Gainesville, Georgia. The affidavit used in the application for the search warrants

was authored by Agent Cory E. Brant of the Immigrations and Customs

Enforcement Division (hereinafter “ICE”) of the Department of Homeland

Security. The search warrants for Dr. Kapordelis’ home and medical practice were

both issued by Magistrate Judge Susan S. Cole on April 12, 2004.

      The search warrant affidavit purported to set out probable cause that Dr.

Kapordelis traveled to St. Petersburg, Russia in October, November and/or

December of 2003 for the purpose of having illicit sex with minors in violation of

Title 18 U.S.C. § 2423 (b), that he had illicit sex with minors, and that there was

evidence of the crimes located on the properties to be searched. The search

warrant affidavit also purported to set out probable cause establishing that Dr.



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Kapordelis was a “child pornography collector/producer” and that he possessed

child pornography in violation of Title 18 U.S.C. § 2252.

       The warrant used to search the luggage and personal effects that were

traveling with the Defendant when he returned from Russia, and which were seized

when he arrived at JFK on April 12, 2004 (and later shipped by ICE agents to

Atlanta) was issued by Magistrate Judge Joel M. Feldman on May 11, 2004, that

is, four weeks after those items were seized in New York. The affidavit used to

support this application was also authored by ICE agent Cory E. Brant. With the

exception of deleting some irrelevant points and adding information about the

fruits of the search at the Defendant’s residence on April 12, 2004, the May 11,

2004 affidavit was identical to the April 12, 2004 affidavit.

       This brief seeks the District Court’s suppression of evidence derived from

these three searches at the Defendant’s home, his medical practice and his traveling

effects.

       There are two essential components of this motion: (1) A Franks v.

Delaware, 438 U.S. 154 (1978), challenge to the legitimacy of the search warrant

affidavit that was authored by the American ICE agent (that is, the search warrant

affidavit knowingly contained false information and omitted material information

that contradicted the allegations of probable cause); (2) a challenge to the existence

of probable cause because of the failure to present sufficient reliable information:



                                          3
(a) that any crime was committed in Russia, or the United States; (b) that any

contraband, or evidence of a crime was likely to be found at the places that the

warrants targeted (i.e., the absence of a nexus between the alleged criminal conduct

and the places targeted in the search warrants).

       Magistrate Brill was presented with virtually all of the information presented

in this brief and concluded that the defendant’s Motion to Suppress should be

denied.1 She reached this decision without conducting an evidentiary hearing on

any of the issues, with the exception of a brief hearing that addressed the question

of the circumstances surrounding the defendant’s arrest at JFK and an inquiry into

the statements that were made by two people in the United States who provided

limited but essentially exculpatory information to the ICE affiant about their

knowledge of Dr. Kapordelis. With the exception of the findings that Magistrate

Brill made regarding these two areas of inquiry, virtually all of her conclusions

were simply conclusions of law that must be reviewed by this court de novo. In

short, as explained below, Magistrate Brill accepted as true all of the defendant’s

1
   In the Motion to Suppress and relevant pleadings that were filed with Magistrate Brill, the
defense included a list of dozens of exhibits, including affidavits, video tapes and copies of law
enforcement reports that supported every allegation of misconduct set forth in the Motion. There
is one large exhibit book is in the court’s record which contains exhibits A - Z. There are
approximately a dozen other exhibits which were filed later with various pleadings relevant to
the Defendant’s Motion to Suppress. For the sake of clarity, this Brief does not include footnotes
or references to the underlying documentary support. All of that information is in the court’s
record, however, and if either this Court, or the government questions the foundation of any
allegation made in the ensuing brief, the defense will reference the exhibit number in a separate
pleading. Attachment 1 provides a list of the various pleadings and exhibits which were
presented to and considered by Magistrate Brill.


                                                4
allegations regarding the omissions in the search warrant affidavit; and accepted as

true all of the defendant’s allegations about the misrepresentations in the search

warrant affidavit. She simply concluded that it didn’t make a difference.

      The defense suggests that it most certainly does make a difference. The

extent of the ICE agent’s misrepresentations – through brazen false statements,

reckless allegations, and material omissions – mocks the Fourth Amendment

Warrant Clause. If an agent applying for a search warrant can get away with this

type of conduct, the protection afforded by the Warrant Clause is a meaningless

placebo.

      The defense also contends that it is entitled to an evidentiary hearing on this

motion. Not only must the court hear first-hand the specifics of Russian and

American law enforcement misconduct that prompted and supported the false

allegations in the search warrant application; not only must the court hear from the

juveniles who have now revealed that they were forced and threatened to make

allegations about the Defendant that were false and that they previously denied; but

the defense is entitled to examine the Affiant and his co-authors about the full

extent of their conduct and knowledge.

      Magistrate Brill’s order also nonchalantly disregarded substantial portions of

the defendant’s Franks v. Delaware showing, relegating to a footnote literally

scores of meaningful instances in which the ICE agent affiant failed to reveal to the



                                         5
issuing magistrate information which categorically contradicted the information

that was being presented in support of the issuance of the search warrant.

      In addition, Magistrate Brill concluded that with respect to one of the target

computers (the computer seized from Dr. Kapordelis when he was arrested at

JFK), the search that was conducted five weeks later in Atlanta did not require a

search warrant at all even though it was fruitlessly searched twice before. Rather,

she concluded that it could be searched without a warrant under either the Border

Search exception, or the Search Incident to Arrest exception to the warrant

requirement. These two theories were not based on any factual dispute that was

resolved by the Magistrate and must also be considered by this Court de novo. The

defense objections to these conclusions of the Magistrate are set forth in a separate

Objection to the Report and Recommendation which will be filed with this court.

      The first part of this challenge, found in Section I, is based on the

intentional material omissions, misstatements, falsifications and misleading

statements in the search warrant affidavits that were presented to the Magistrates in

this district in order to secure search warrants. Franks v. Delaware, 438 U.S. 154

(1978). These misrepresentations and omissions relate to the information known

by the Affiant and his colleagues and which clearly demonstrated that there was

not probable cause to believe either (1) that the defendant had committed any acts

of child molestation; or (2) that there would be any evidence of an offense on the



                                         6
computers that were targeted by the search warrants. Specifically, the showing

that has been meticulously documented in the materials presented to Magistrate

Brill in connection with the Motion To Suppress proved that the Affiant who wrote

the search warrant affidavits:

      (1) Failed to reveal that alleged victims had denied being victimized when

asked about their innocent contact with Dr. Kapordelis;

      (2) changed the date on which an alleged molestation was reported to have

occurred in order to make the occurrence possible rather than impossible;

      (3) failed to reveal the extent to which two prior searches of the laptop

computer that the search warrants targeted had failed to uncover any evidence of

criminal activity or contraband;

      (4) failed to reveal that the targeted computer and camera equipment were

not in the Defendant’s home or office as implied in the affidavit but were actually

in New York, in the custody of American ICE agents;

      (5) failed to act on, or disclose any of the facts which demonstrated that the

Hotel security staff and Russian police were targeting Dr. Kapordelis and

orchestrating false allegations of molestation in retaliation for a complaint he filed

with the Hotel managers four months prior;

      (6) failed to reveal that American agents were aware of the fact that Russian

police created conditions for a restricted and limited investigation; one in which



                                          7
the veracity of witness statements could not be challenged despite the fact that

there were material inconsistencies, contradictions or impossibilities in the

statements themselves;

      (7) concealed the identity of Mr. Andrei Lapov in the search warrant

affidavit; Mr. Lapov, a Russian citizen, is not only a convicted felon and child

molester but he was a so-called “operational agent” in this investigation and played

a crucial role in formulating and falsely documenting the fabricated allegations by

the juveniles, each of whom was under his control;

      (8) failed to reveal that the alleged victims were being forced to provide

false statements against Dr. Kapordelis by Mr. Lapov and Russian Police Officer

Koroliova under threat of beatings or imprisonment;

      (9) failed to reveal the fact that Mr. Lapov actually molested one of the three

juvenile claimants (Juvenile-C) for over four years and sexually exploited another

one (Juvenile-A);

      (10) changed the content of witness statements so that other impossible

encounters would not discredit the information being presented;

      (11) failed to reveal that there was an extensive two hour completely

fruitless search of the Defendant’s apartment in Russia.




                                         8
      (12) failed to reveal that the Russian police, Mr. Lapov and Hotel security

personnel were, themselves, providing false allegations about the Defendant during

the investigation and, therefore, were not credible.

      But for the reckless misconduct by the Affiant, in conjunction with his

American and Russian law enforcement colleagues there was no probable cause to

support the issuance of the search warrants.

      Section II addresses: (1) the lack of probable cause supporting the

allegations of possession, production or collection of child pornography; (2) the

lack of a nexus, supported by probable cause, linking any of the alleged criminal

activity in Russia to the Defendant’s home or office – that is, the absence of

probable cause that contraband or evidence was located in the places to be

searched; (3) the lack of specificity, supported by probable cause, regarding the

items which were sought to be seized or searched.

      Though there are numerous facial deficiencies in the probable cause basis

for the search, suffice it to say that the only basis for searching the computers was

to seize child pornography; the search warrant affidavit makes this clear. Yet,

there was not a single bit of information supplied to the magistrate – not one shred

of evidence – that suggested that Dr. Kapordelis had ever possessed, obtained,

solicited, or even looked at a single picture of child pornography on any computer

on the face of the earth. In fact, in the search warrant application, the term “child



                                          9
pornography” does not even appear once in the section that documents the

investigation of Dr. Kapordelis.

      The only computer identified in the investigative section of the affidavit, and

only wishfully having any relevance to any alleged criminal activity whatsoever,

was the defendant’s laptop which federal agents knew (1) was not in the

Defendant’s home or office at the time of the search and (2) had already been

searched for pornography or evidence twice – once in Russia and once at JFK

airport – with fruitless results.   Characteristic of the search warrant affiant’s

deception, this information was concealed from the magistrate to whom he

presented the search warrant application. Moreover, there was no probable cause,

other than that created by the Affiant through misrepresentations, to suspect that

any other computer was in the defendant’s home or office at the time of the search

and, if there happened to be one at that location by chance, that it had any

evidentiary value or was connected to any criminal activity of any kind.

      In summary, the defense, at this time, asks for nothing more than this: an

opportunity to be heard; an opportunity to present evidence before this court; and

an opportunity to argue based on the evidence developed at an evidentiary hearing

that the Defendant has satisfied the standard set forth in Franks v. Delaware to

suppress the evidence obtained from the execution of the search warrants. A

sufficient showing has been made for such an evidentiary hearing.



                                         10
                                     SECTION I

                                 Franks v. Delaware



                       THE GOVERNMENT’S AFFIDAVIT

        This section of the brief will focus on the affidavit used to secure the search

warrant for Dr. Kapordelis’ home because it contains all the Franks issues that are

relevant to all three search warrants. The May 11, 2004 search warrant application

for the search of the Defendant’s luggage and personal effects also contain the fruit

of the earlier searches; however, this additional evidence would be tainted if the

earlier search warrants were ruled invalid. For this reason, we focus on the home

search warrant recognizing that the material facts apply to the other warrants as

well.

        The search warrant affidavit was comprised of several parts which include

the officer’s credentials; generic conclusory statements about investigations

pertaining to child pornography collectors; the investigation itself; boiler plate lists

of specifics items to be searched and seized, pertaining to the production and

possession of child pornography and based on the characteristics of “child

pornography collectors;” the search and seizure of child pornography as it

specifically relates to computer systems; and a single paragraph of generic and non




                                           11
specific (i.e., boiler plate and rummaging) items to be seized pertaining to travel in

foreign commerce for the purpose of sex tourism in Russia.

      This Franks v. Delaware suppression motion focuses on the investigation

itself which comprises paragraphs 17 to 40 of the affidavit in the original search

warrant application. The criminal activity actually addressed in this investigative

section of the affidavit pertained to alleged sexual acts with minors in Russia.

Nowhere in the investigative section of the affidavit did the Affiant produce

evidence or testimony supporting the two other purported crimes: (1) that the

Defendant possessed, produced or collected child pornography; (2) that the

Defendant planned or arranged, from the United States, travel to Russia in order

to engage in sexual acts with minors.

      In the investigative section of the affidavit, Agent Brant attempts to establish

probable cause by presenting an affidavit which was based on false information

orchestrated by Russians; information that American agents had every reason to

believe was false. In short, the information of Russian misconduct assimilated

during the investigation was neither scant nor obscure. Worse, American agents

did not simply “relay” the bogus information to U.S. magistrates, they omitted all

information that would have exposed the misconduct and they assisted the

Russians by repeatedly contributing to the misrepresentations and fabrications.




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               PRINCIPAL INDIVIDUALS INVOLVED

 Cory E. Brant - Case Agent, Department of Homeland Security,

   Immigrations and Customs Enforcement (“ICE”); also Affiant who was

   based in Atlanta, Georgia.

 Edgar T. Lacy - Senior Agent, Department of Homeland Security, ICE,

   Attaché, U.S. Embassy, Moscow; Main U.S. investigator in Russia who

   relied on translations provided by Attaché Sergey Kishkinsky.

 Sergey Kishkinsky - Foreign Service National (Russian Federation),

   Criminal Investigator Attaché to the U.S. Embassy in Moscow.             Mr.

   Kishkinsky was the translator for Attaché Lacy and the only apparent person

   who converted Russian information to English and vice versa.

 Yelena O. Koroliova - Officer, Criminal Investigations Division of the St.

   Petersburg Police Department. She was the police officer initially contacted

   by the Hotel Grand Europe Security Service and asked to begin an

   investigation of Dr. Kapordelis.

 Mr. Andrei Lapov – Operational agent working with Officer Koroliova and

   involved in the entirety of the investigation of Dr. Kapordelis but never

   revealed in the search warrant affidavit. Former police officer who was fired

   from his position at a juvenile detention facility because of allegations of

   child molestation. Convicted felon who used a thirteen or fourteen year old


                                      13
   child in the commission of his crimes. Reportedly a close friend of St.

   Petersburg Police Office Koroliova. Mr. Lapov is a central figure not only

   in the investigation of Dr. Kapordelis, but also in the Franks v. Delaware

   motion, because the failure to document Lapov’s role – and his background

   – deceived the issuing magistrates into believing that the investigation was

   being conducted by law enforcement officers with no “axe to grind” and

   without any blemish on their credibility. The failure to reveal Lapov’s role,

   in other words, was akin to failing to identify that the information in a search

   warrant was not coming from a cop on the beat, but rather from a criminal

   informant with a motivation to lie.

 Ms. Alla Bazenkova O’Regan – Russian Citizen; translator/interpreter

   hired by Dr. Kapordelis during his October, November and December, 2003

   trips to Russia.

 Mikhail Marchenko – Russian Citizen; translator/interpreter hired by Dr.

   Kapordelis during his January, February and March, 2004 trips to Russia.

 Dr. Eva Racanska – Czech Republic Citizen; physician friend of Dr.

   Kapordelis’ who was visiting St. Petersburg with him in November, 2003.

 Juvenile E or H – 15 year old being adopted by Dr. Kapordelis.

 Juvenile F or G – Friend of Juvenile H who lives with him at Dom

   Miloserdia orphanage


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 Juvenile A;     Juvenile C; Juvenile D – The three juveniles who were

   alleging to have been molested by Dr. Kapordelis in Russia

 Juvenile B- The juvenile falsely reported by the Hotel security staff and

   Officer Koroliova as having gone with Dr. Kapordelis to his Hotel room.

   The Government has conceded that this allegation included in the search

   warrant affidavit was false.

 Karen Fankhauser, RN – Administrator of the Gainesville Surgery Center,

   the location of Dr. Kapordelis’ medical practice in the United States. She

   was interviewed by ICE agents prior to Dr. Kapordelis’ arrest.

 Marie Hernandez, RN – Head nurse at the Gainesville Surgery Center who

   worked there for approximately five months prior to the arrest of Dr.

   Kapordelis. Though Ms. Hernandez was professionally acquainted with Dr.

   Kapordelis at the Surgery Center, she clearly informed ICE agents that she

   did not know him socially in any capacity and had only been to his home on

   one occasion, for a staff Christmas Party in December, 2003.

 Mr. Alexander Rodin – Defense investigator in Russia; Former Deputy

   Minister for the Parliament of St. Petersburg whose office was responsible

   for the protection of orphans; Chairman, NGO (non governmental

   organization) entitled “Come and Help” which provides legal and other




                                     15
      supportive services to Russian children who are socially or economically

      disenfranchised.



         FRANKS V. DELAWARE DISCUSSION AND ARGUMENT

                                     INDEX



I. Background Regarding Dr. Kapordelis’ Activities in Russia
II. Intentional and Reckless Disregard for the Truth by the Affiant and other Law
   Enforcement Agents:
      A. The Allegations in the Search Warrant Affidavit Relating to the Three
         Supposed Juvenile Victims (A, C and D)
      B. The Defendant’s Showing of Material Misrepresentations and Omissions
         Related to the Three Alleged Juvenile Victims (A, C and D)
      C. Magistrate’s Brill’s Report and Recommendation as it Pertains to the
         Facts Accepted as True Related to the Three Alleged Juvenile Victims
         (A, C and D)
      D. Other Contents of the Search Warrant Affidavit That Contained
         Misrepresentations and Material Omissions Regarding Probable Cause
         that any Crime Had Been Committed or Probable Cause that the
         Evidence Could be Found at the Places to be Searched:
            i. Issues Pertaining to “Non-Victims” Referred to in the Affidavit (B,
               G and H)
            ii. Issues Pertaining to the Hotel Security Staff
            iii. Issues Pertaining to Mr. Andrei Lapov, the “Operational Source”
            iv. Russia and New York Search Issues

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            v. HealthSouth Employee Interviews Conducted in Gainesville,
               Georgia on April 12, 2004
      E. Reasons why the Information Known to Russian Law Enforcement
         Agents and their Colleagues Must be Attributed to the ICE Agent who
         Authored the Search Warrant Affidavit.
III. Summary and Memorandum of Law on the Franks v. Delaware Argument



                                         I.

         Background Regarding Dr. Kapordelis’ Activities in Russia

      Dr. Kapordelis first visited Russia in October, 2003 during a three day trip to

tour Russian Orthodox and Catholic churches in St. Petersburg. During this trip

Dr. Kapordelis discovered Alex “Sasha” (hereinafter “Juvenile H”) who was

homeless, hungry and exposed to freezing temperatures. Dr. Kapordelis found this

boy a home with the assistance of two Russian social workers who worked with an

organization called Rainbow of Hope. The social workers placed Juvenile-H in an

orphanage called Dom Miloserdia (translated “Shelter of Mercy”). This was the

extent of Dr. Kapordelis’ intervention until Juvenile-H asked Dr. Kapordelis to

adopt him and take him to America.

      Dr. Kapordelis investigated the option of adoption and ultimately submitted

an application to the Department of Homeland Security. Between November, 2003

and April, 2004, while awaiting adoption approval in the United States and while

arranging the adoption paperwork in Russia, Dr. Kapordelis visited Juvenile-H

                                         17
during six trips from America. These visits were focused on Juvenile-H and the

preparation of his upcoming transition to America. On several occasions, Dr.

Kapordelis, Juvenile-H and other orphans would participate in group activities

which included church, church outings, bowling and skiing events, trips to the

circus and birthday celebration dinners at Dr. Kapordelis’ apartment. All of these

group events were supervised by adult employees of the orphanage.                Dr.

Kapordelis also accompanied Juvenile-H to his English lessons taught by a

professional tutor, his medical visits, his child psychology visits, etc.        Dr.

Kapordelis hired adult translators/interpreters (adult Russian citizens) during every

visit to Russia because he could not speak the Russian language and yet wanted to

converse with Juvenile-H fluidly. These translators were with Dr. Kapordelis on

50 of the 53 days that he was in Russia.

      Dr. Kapordelis became well known to the directors of Dom Miloserdia, the

orphans themselves, the adult tutors, the clinical child psychologist and the adult

caretakers. Dr. Kapordelis would often take Juvenile-H to church and communion

(the church was located adjacent to the orphanage); they shared the same Orthodox

faith - the church and the juvenile are Russian Orthodox and Dr. Kapordelis is

Greek Orthodox. All these activities, efforts and interactions were captured on the

videotapes and photographs which were viewed by law enforcement in Russia;

unfortunately, none of these activities were accurately conveyed to U.S.



                                           18
Magistrates. Rather, the Affiant misrepresented these innocent and supervised

contacts as pimping events organized by Juvenile-H in order to provide Dr.

Kapordelis with “boys for meets.” Nothing could have been further from the truth

and over a dozen Russian citizens (juveniles and adults) are prepared to confirm

the misrepresentations at an evidentiary hearing. The allegation that Juvenile-H

acted as Dr. Kapordelis’ pimp was simply fabricated in the search warrant

affidavit: A simple, and typical, misrepresentation by the Affiant.

      On March 3, 2004, Dr. Kapordelis was approved by the Department of

Homeland Security to adopt from Russia. This approval followed a thorough

home study evaluation by Lutheran Services, Inc. and extensive background

checks and fingerprint analysis by both the Federal Bureau of Investigation and

Georgia Bureau of Investigation.      A certificate authorizing the adoption was

subsequently issued by the Department of Homeland Security, the very agency that

employs Agent Brant and Attaché Lacy. The U.S. Embassy in Moscow, where

Attaché Lacy and Agent Kishkinsky are attached, received a Visas Cable 37 on

April 8, 2004, confirming the adoption approval.

      Federal agents investigating the allegations against Dr. Kapordelis were

apprised of Dr. Kapordelis’ adoption efforts by (1) the Hotel security service; (2)

the St. Petersburg Police; (3) Juvenile-H; (4) Mr. Marchenko; and, (5) Karen

Fankhauser.    Dr. Kapordelis’ official adoption application and the adoption



                                         19
approval were concealed from the U.S. magistrates who were asked to issue search

warrants, leaving them with no choice but to assume that Dr. Kapordelis’ was

traveling to Russia for nefarious purposes.

      During Dr. Kapordelis’ October 2003 and November 2003 trips, he resided

at the Hotel Grand Europe (“Hotel”) and was confronted daily by many children

who begged for food or money just outside the Hotel doors. Dr. Kapordelis fed a

child, ranging in age from twelve to seventeen, on three separate occasions; there

was nothing sinister in the intent or improper in the execution of this gesture.

During one of these occasions, Dr. Kapordelis was accompanied by a friend from

the Czech Republic, Dr. Eva Racanska, who was visiting Russia with him. Dr.

Kapordelis simply took these three hungry kids inside the Hotel, was cleared by

the security guards in the entrance screening area, and fed the teens either utilizing

room service or by offering whatever limited food was available in the small

cupboard within the Hotel suite.      Unfortunately, none of this was accurately

relayed to the U.S. Magistrates who issued the search warrants; instead, innocent

events, acknowledged by the juveniles in statements to the Hotel security staff and

St. Petersburg police as innocent, were transformed into criminal allegations.

      As will be discussed in detail below, the three juveniles who made claims

against Dr. Kapordelis in March, 2004 were not making these claims on their own

volition. Dr. Kapordelis was a victim of an extortion attempt by the security staff



                                         20
of the Hotel Grand Europe in November, 2003. On the very day that this extortion

attempt occurred, Dr. Kapordelis and his translator (Ms. O’Regan) demanded a

meeting with the Hotel managers, Mr. Elmer Grief and Mr. Gerhardt Bosse, to

report the event. At the meeting, held on November 16, 2003, Mr. Grief and Mr.

Bosse apologized to Dr. Kapordelis and Ms. O’Regan for the “misunderstanding.”

Three days later (November 19, 2003), Dr. Kapordelis wrote a letter to the Hotel

managers demanding a formal investigation of the security staff.      It was this

demand made by Dr. Kapordelis in November, 2003 which prompted the Hotel

security staff to retaliate against Dr. Kapordelis in March 2004, with the help of

Russian police. Within days after a phone call from the security staff to Officer

Koroliova and Mr. Lapov, allegations of molestation were being made against Dr.

Kapordelis by the three juveniles who previously denied any wrongdoing.



                                       II.

  Intentional and Reckless Disregard for the Truth by the Affiant and other
                          Law Enforcement Agents


A. The Allegations in the Search Warrant Affidavit Relating to the Three
Supposed Juvenile Victims of Molestation:


      In paragraphs 19 and 30-34 of the search warrant affidavit, the Affiant

alleges that Dr. Kapordelis molested three juveniles in St. Petersburg, Russia



                                       21
during October and November of 2003. These juveniles are identified as “A”, “C”

and “D”.

       With regard to “A”, the search warrant affidavit states that: The Hotel

           security staff presented a picture of “A” to St. Petersburg Police on or

           about March 1, 2004; “A” provided his statement to Officer Koroliova on

           March 6, 2004; in that statement “A” alleged that Dr. Kapordelis invited

           “A” to his Hotel room between October and November, 2003; Dr.

           Kapordelis tried to molest “A” when Dr. Kapordelis’ translator left the

           room; “A” was scared, tried to resist and escape but could not; “A” was

           able to escape when the translator returned; “A” ran out of the room.

       With regard to “C”, the search warrant affidavit states that: Attaché

           Lacy interviewed seventeen-year old “C” on April 8, 2004; “C”

           encountered Dr. Kapordelis on or about October 13, 2003; “C” has a

           mental condition caused by an incident that occurred at a young age; “C”

           was invited to Dr. Kapordelis’ Hotel room; in the Hotel room, “C” was

           offered a cup of coffee and a shower and, following his shower, was

           offered several blue and white capsules from a plastic bag;             Dr.

           Kapordelis told “C” that the capsules would make him sleep well; “C”

           began to feel strange and could not think right; Dr. Kapordelis then




                                          22
  sexually forced himself upon “C” until “C” became unconscious; “C”

  was given 1000 rubles and left.

 With regard to “D”, the search warrant affidavit states that: Attaché

  Edgar Lacy interviewed thirteen year-old “D” on April 8, 2004; “D” first

  encountered Dr. Kapordelis at a local hangout location and was invited

  back to Dr. Kapordelis’ hotel room to eat a meal and take a shower;

  during the middle of the shower, Dr. Kapordelis entered with a camera and

  video taped the juvenile for approximately one minute; after the shower

  “D” was offered a cup of juice into which Dr. Kapordelis poured the

  contents of a blue and white capsule; after drinking the juice, Dr.

  Kapordelis offered “D” 1000 rubles for oral sex but “D” refused; “D” was

  given 300 rubles and left. A second encounter allegedly occurred in

  December, 2003; Dr. Kapordelis fed “D” at a café and then took the

  juvenile to his apartment; at the apartment “D” was shown a “moving

  picture” of himself on a laptop computer; “D” then took a shower and was

  offered a drink into which three blue and white capsules were opened; Dr.

  Kapordelis asked “D” to engage in oral sex but “D” said no; Dr. Kapordelis

  became loud in protest; “D” was frightened and allowed Dr. Kapordelis to

  have oral sex with him; “D” felt weak and was unable to think clearly then

  fell asleep; “D” awoke and found himself nude with Dr. Kapordelis


                                 23
            wearing a bathrobe; “D” said that he thinks that Dr. Kapordelis would kill

            him if he found out that “D” was talking to law enforcement; “D” was

            shown a picture of Dr. Kapordelis and positively identified him as the

            person with whom he had oral sex.



B. The Defendant’s Showing of Material Misrepresentations and Omissions
   Related to the Three Alleged Juvenile Victims:


      Below are the Franks issues concerning the alleged claimants.             Each

argument is supported by affidavits which were presented to the Magistrate court,

with documentary support, on behalf of the Defendant. As clearly demonstrated,

American agents were provided with substantial information during the

investigation exposing the fact that Dr. Kapordelis was being falsely accused and

targeted.      Rather than investigate any of the obvious inconsistencies,

contradictions, impossibilities or falsehoods, law enforcement chose to mislead the

court by deliberately (1) eliminating all exculpatory and exonerative information;

(2) concealing evidence which directly refuted the false allegations which were

being made; (3) manufacturing or bolstering probable cause through reckless

misrepresentations and/or fabrications.




                                           24
Juvenile-A:

 Juvenile-A has admitted in a videotaped interview that he was never

   molested or sexually approached by Dr. Kapordelis in any way at any time.

   The juvenile has confessed that he was forced by Andrei Lapov and St.

   Petersburg Police Officer Koroliova to provide false testimony against Dr.

   Kapordelis after being threatened with a beating or prison if he did not

   comply. (Note: American agents did not interview Juvenile-A prior to Dr.

   Kapordelis’ arrest).

 Juvenile-A admits that every false statement he made was orchestrated by

   Andrei Lapov and Officer Koroliova. While American agents may claim

   that they did not have direct knowledge that the statements attributed to

   Juvenile-A were being forced, there was ample evidence presented to

   indicate that the information was false. This evidence was simply concealed

   from the search warrant magistrates.

 Juvenile-A has admitted that he knew Andrei Lapov long before he met and

   was fed by Dr. Kapordelis and Dr. Racanska. He also revealed that he had

   been to Mr. Lapov’s home, was shown pornography and invited into a

   sexual tryst with him, but refused.

 The Search Warrant Affiant lied in the search warrant affidavit by claiming

   that Juvenile-A presented the March 6, 2004 allegations against Dr.


                                         25
Kapordelis to Officer Koroliova. The Defendant considered this claim by

Juvenile-A to be suspect and requested confirmation of the facts in open

court during a hearing before Magistrate Brill. On November 12, 2004,

Assistant U.S. Attorney Danzig confirmed the veracity of the statement

contained in the affidavit, after contacting Attaché Lacy in Russia. In that

same pre-trial conference, Magistrate Brill ordered Attaché Lacy to

officially answer questions pertaining to several different issues; one of

these issues concerned Juvenile-A’s allegation against the Defendant. On

January 12, 2005, Attaché Lacy (via the Government’s response to the

magistrate court’s interrogatory) admitted that there was no interview of

Juvenile-A by officer Koroliova on March 6, 2004 as sworn in the affidavit

and confirmed in open court by Mr. Danzig. Instead, Attaché Lacy reported

that the new allegation attributed to Juvenile-A was provided by Andrei

Lapov to Officer Koroliova and then relayed by Officer Koroliova to Agent

Kishkinsky (ICE), by Agent Kishkinsky to Attaché Lacy and by Attaché

Lacy to Affiant Brant. The search warrant magistrate was unaware that

Andrei Lapov had actually provided the court (via the Affiant) with one of

the three complaints against Dr. Kapordelis. In short, the magistrates and

the Defendant were led (misled) to believe that the three juvenile claimants




                                 26
   were providing the statements on their own.          Mr. Lapov’s integral and

   criminal role in this investigation is discussed shortly.

 Juvenile-A denied wrongdoing when confronted by Hotel security and

   Russian police on November 15, 2003, the day he was fed by Dr. Kapordelis

   and Dr. Racanska. The Hotel security staff confirmed this fact when they

   spoke to American agents in June and December, 2004. While there is no

   official record that this exonerative information was presented prior to Dr.

   Kapordelis’ arrest and search warrant application, it is clear that law

   enforcement interviewed the security staff prior to April 12, 2004, the day

   the search warrant was signed.           Juvenile-A’s express denial of any

   wrongdoing by Dr. Kapordelis was never mentioned in the search warrant

   affidavit.

 There was no disclosure to the search warrant magistrate that Dr. Eva

   Racanska was Dr. Kapordelis’ guest in the Hotel or that she was with Dr.

   Kapordelis when Juvenile-A was fed via room service on November 14,

   2003. The Affiant claimed that Dr. Kapordelis entered the hotel alone with

   the boy, misrepresenting the true circumstances involved.         This was a

   deliberate omission designed to bolster probable cause.

 There was no disclosure of the video surveillance tape refutation of Juvenile-

   A “running out of room.” That is, a videotape maintained by the Hotel and


                                       27
   reviewed by law enforcement clearly showed that Juvenile-A never “ran out

   of the room,” but, instead, that he peacefully and calmly walked out with Dr.

   Kapordelis and Dr. Racanska.        There is no doubt that the videotaped

   departure from the Hotel room is consistent with a juvenile having just been

   fed a hamburger, chicken tenders, French fries and a cola by room service –

   not consistent with running away after finally being able to escape a

   frightening act of sexual molestation.     Based on a review of all the

   documents provided by the Government to the defense, there appears to

   have been no attempt by American agents to determine why Officer

   Koroliova and Mr. Lapov were presenting obviously false information and

   attributing it to Juvenile-A.

 The magistrate was not informed about the official Hotel transfer note which

   was written to the St. Petersburg police on November 15, 2003 and

   corroborated the fact that no molestation was claimed, suggested or hinted at

   by the boy or the Hotel security staff.

 As discussed in detail later in this brief, there was no acknowledgement to

   the magistrates that the Hotel security chief attempted to extort from Dr.

   Kapordelis on November 15, 2003 when the security chief falsely claimed

   that a police report existed documenting the molestation of Juvenile-A and

   that “the problem needed to be fixed.” It has been clearly documented that


                                      28
   there was no allegation of molestation by Juvenile-A in November, 2003 and

   no police report documenting any allegations as claimed by the Hotel

   security guard.

 There was no disclosure of Juvenile-A’s social history which was material to

   the issue of his credibility.

 There was no disclosure regarding the friendship between Juvenile-A, C and

   D, the three supposed victims.



Juvenile-C:

 Juvenile-C had innocent contact with Dr. Kapordelis on November 13, 2003.

   This 17 year old was provided a hamburger, fries and a cola via room

   service after he, too, had been found hungry and begging outside the Hotel’s

   front door. Unlike Juvenile-A, who left within an hour of entering the Hotel,

   Juvenile-C was allowed to watch television and stay overnight.

 Juvenile-C confirms that: (1) He was neither sexually approached nor

   sexually molested by Dr. Kapordelis; (2) he made no claims of molestation

   against Dr. Kapordelis until after the he was contacted by Andrei Lapov in

   March, 2004; (3) he agreed to provide false statements of molestation

   against Dr. Kapordelis only because Mr. Lapov threatened him with prison

   time if he did not comply; (4) every incriminating statement he made against


                                     29
       Dr. Kapordelis was coerced and orchestrated by Andrei Lapov who was

       working with, and is a personal friend of, Officer Koroliova; (5) he was

       sexually molested by Mr. Lapov for over four years from the time the

       juvenile was thirteen years old; (6) Officer Koroliova was personally aware

       of Mr. Lapov’s criminal sexual conduct but never intervened; and, (7)

       Andrei Lapov was permitted to personally monitor and influence this

       juvenile’s delivery of the false statements to American agents.                         The

       magistrates were told none of this in the search warrant affidavit. Not only

       was Andrei Lapov’s name never referred to even once in the search warrant

       affidavit, his name was redacted from every ICE report of interview

       provided to the defense until April, 2005.2

     Juvenile-C was interviewed by Attaché Lacy on April 8, 2004. In Juvenile-C’s

       coerced statement, which was memorialized by Attaché Lacy in a written

       report, Juvenile-C stated that he was asked by the Defendant if he wanted to

       have sex and he “decided to try.” The almost 18 year old boy even described


2
  The defense was only able to discover Mr. Lapov’s involvement and criminally obstructive
conduct because of paperwork presented by the Government in April, 2005, a year after the
Defendant’s arrest. This “report of interview” was the first interview record to identify Mr.
Lapov by name. Just days prior to this discovery, Juvenile-M (not one of the initial claimants)
had been interviewed by defense investigator Rodin and admitted that he was never molested by
Dr. Kapordelis but forced to make false claims by a man named “Andrei.” It has been confirmed
that the “Andrei” referred to by the boy is Andrei Lapov, the sidekick of law enforcement used
during the entire investigation. This revelation in May, 2005 is what led to a full investigation of
Mr. Lapov and revealed his sexual molestation or exploitation of the very people he was forcing
to falsely implicate Dr. Kapordelis.


                                                30
   various sex acts that were allegedly performed. Even though it has been

   demonstrated by the defense that there was no sexual contact between Dr.

   Kapordelis and any of these juvenile claimants, the bigger issue is this: Why

   did Agent Brant alter the juvenile’s statement establishing criminal conduct

   when the actual event described by the juvenile (even though false and forced)

   was not criminal? This issue of “consent” did not just spontaneously disappear

   from Attaché Lacy’s interview report; it was deliberately “erased” by Agent

   Brant when he created his doctored summary of Attaché Lacy’s interview and

   then transferred the false information from his summary into the search warrant

   affidavit destined for U.S. magistrates. The same type of deception, clearly

   demonstrated by comparing Attaché Lacy’s interview report to Agent Brant’s

   summary, applies to the issue of forced molestation, a claim that the Juvenile

   himself never alleged in that interview. There is absolutely no possible way

   that this deception, clearly attributed to the Affiant, can be attributed to “the

   Russians” or excused as “a translation or communication error.”             This

   obstructive act belongs to the Affiant – lock, stock and barrel.

 During the interview, the juvenile reported that he was apprehended by the

   Hotel security staff when he and Dr. Kapordelis were walking towards the

   lobby (on November 14, 2003 when the juvenile was fed). Juvenile-C stated

   that the security staff questioned him as to why he had gone to the room with


                                       31
   Dr. Kapordelis. Juvenile-C reported that he told the Hotel Security Staff that

   nothing improper had occurred.            Agent Brant concealed this denial by

   Juvenile-C from the search warrant magistrates.

 According to Juvenile-C, after this denial of any wrongdoing he was “slapped

   in the face three or four times by the guards and does not remember what he

   told them afterwards.” The Affiant concealed Juvenile-C’s beating by the

   Hotel Security Service even though it was clearly referenced in Attaché Lacy’s

   report of the interview. This is yet another example where information in

   Attaché Lacy’s report somehow never made its way to Agent Brant’s

   summary or the search warrant affidavit. Worse, this documented beating was

   never investigated by ICE agents even though it directly impugned the

   credibility of the principal informant in this investigation.

 Following the beating, the local police authority transported Juvenile-C to

   the police station where he again denied wrongdoing by Dr. Kapordelis.

   This second denial by the juvenile was also concealed from the magistrates

   when Agent Brant applied for the search warrants. No police report was

   filed regarding any suspicion or act of molestation in November, 2003.

 The Hotel transfer letter corroborated the fact that there was no allegation of

   molestation by Juvenile-C. This letter was concealed from the magistrates.




                                        32
 Juvenile-C was asked to write, by hand, a “personal statement” as to his

  involvement with Dr. Kapordelis on November 13, 2003. In his statement,

  the juvenile never made any allegations of molestation or improper behavior

  by Dr. Kapordelis.

 There was ample evidence presented to American agents to indicate that

  Juvenile-C was lying. There were scores of conflicts and contradictions in

  Juvenile-C’s two statements; one made on March 18, 2004 to Officer

  Koroliova and one made to Attaché Lacy on April 8, 2004. The entirety of the

  March 18, 2004 interview, known by American agents to have taken place, was

  concealed. The search warrant magistrates were not made aware of these

  material inconsistencies, conflicts or contradictions in Juvenile-C’s

  statements because Agent Brant deceptively filtered everything down to

  “one clear-cut statement.” If the inconsistencies would have been revealed

  in the search warrant affidavit, the magistrates would have clearly

  understood that this juvenile was reciting told or taught events that were

  forced upon him rather than experienced events.        The following few

  examples reflect material inconsistencies or contradictions that exist when

  one directly compares the March 18, 2004 interview by Officer Koroliova

  with the April 8, 2004 interview by Agent Lacy; interviews that were only

  twenty days apart:


                                   33
a. In Officer Koroliova’s report, Juvenile-C said that he met Dr.

   Kapordelis specifically on November 13th at 10:20 PM. In Agent

   Lacy’s report, Juvenile-C said that he met Dr. Kapordelis in October,

   2003. How does a juvenile recall a date and time to the minute (i.e.,

   Koroliova’s interview) when dealing with an event which occurred

   four months prior, yet he forgets the date entirely when interviewed

   just twenty days later (i.e., Lacy’s interview)?

b. In Officer Koroliova’s report, Juvenile-C claimed that he recognized

   that Dr. Kapordelis was a foreigner and approached him for money. In

   Agent Lacy’s report, Juvenile-C said that he was begging for money

   and was then approached by Dr. Kapordelis.

c. In Officer Koroliova’s report, Juvenile-C said that he entered the

   Hotel room and took pills, then immediately lost consciousness and

   awoke the next day; he did not claim to have either eaten or showered.

   In Agent Lacy’s report, Juvenile-C said that he ate food and then

   showered.

d. In Officer Koroliova’s report, Juvenile-C said that he lost

   consciousness immediately after taking blue and white pills. He only

   thought he was molested because his anus was sore. As discussed

   earlier in this brief, in Agent Lacy’s report, Juvenile-C said he



                                34
        consented to sex and was a participant; even to the extent of

        describing various sexual acts.

     e. In Officer Koroliova’s report, Juvenile-C says that he went to sleep

        fully clothed and woke up absolutely naked, with Dr. Kapordelis also

        naked next to him. In Agent Lacy’s report, Juvenile-C said that he

        went to sleep wearing shorts and a tee shirt and was awakened by Dr.

        Kapordelis who was wearing blue jeans and a tee shirt.

     f. In Officer Koroliova’s March 18, 2004 report, Juvenile-C reported

        that he and Dr. Kapordelis left together.      In Officer Koroliova’s

        interview allegedly on March 6, 2004, Juvenile-C reported that he left

        the Hotel room alone.

     g. In the interview conducted by Officer Koroliova on March 6, 2004,

        Juvenile-C claimed he was given one capsule by Dr. Kapordelis for a

        headache; in the interview with Officer Koroliova on March 18, 2004,

        Juvenile-C claimed that he was given three capsules by Dr.

        Kapordelis which were to help him get relaxed and feel better. In the

        interview by Agent Lacy on April 8, 2004, Juvenile-C claimed that he

        was given two or three pills to help him sleep well.

 There appears to have been no effort by ICE agents to reconcile any of

  Juvenile-C’s two dozen conflicting statements. The failure on the part of


                                    35
       American agents to ask even one question about any of the inconsistencies

       or contradictions clearly demonstrates that the agents were only interested in

       presenting a prejudiced supposition to the magistrate rather than the actual

       facts discovered during the investigation. This deliberate recklessness on the

       part of the Affiant contributed to the concealment of the much larger issue –

       Mr. Lapov’s criminal involvement in forcing the false allegations.

     Another significant material issue is completely excluded from the affidavit,

       although it is well documented by the investigative Agents in their reports.

       In the discovery reports recorded by ICE, Agent Kishkinsky formally tried

       to mitigate the material inconsistency wherein Juvenile-C said he received

       one capsule from Dr. Kapordelis for a headache. In his explanation, Officer

       Kishkinsky acknowledged that the March 6, 2004 “account of what

       happened” was presented to Officer Koroliova, not by Juvenile-C as

       claimed, but by the Hotel Security Service itself.3 Through this simple

       correction, one discovers who is actually behind these new allegations made

       against Dr. Kapordelis in March, 2004. It is the Hotel Security Service

       which is telling Officer Koroliova what Juvenile-C should be alleging,

       before any actual police interview of Juvenile-C has taken place.                        One


3
 This represents a second time that an allegation is reported to be coming from a juvenile directly
but is actually being attributed to the juvenile by either Mr. Lapov or the Hotel security staff. None
of this information was revealed to search warrant magistrates.


                                                 36
   should objectively question how the Hotel Security Service would be able to

   report what Juvenile-C should be alleging, given the fact that there were

   only repeated denials of molestation and wrongdoing by Juvenile-C when he

   was interviewed and beaten by the Hotel security staff in November, 2003.

 The Affiant did not inform the magistrates that this juvenile was a street child

   who frequently begged for food and money outside the Hotel and had

   confronted Dr. Kapordelis for money to buy food.

 The affiant did not reveal the friendship between juveniles A, C and D.



Juvenile-D:

 Mr. Lapov brought Juvenile-D to his first interview with Russian and

   American law enforcement on April 8, 2004. Prior to this contact on this

   date there were no claims by Juvenile-D of wrongdoing by Dr. Kapordelis.

 No other law enforcement officer or agent, Russian or American,

   interviewed Juvenile-D before Mr. Lapov confronted the boy.

 Of all three supposed claimants, Juvenile-D’s allegations are the most far-

   fetched and implausible for reasons discussed below.

 Juvenile-D has, to date, never claimed to have been molested at the Hotel

   Grand Europe on October 14, 2003, the day he was fed by Dr. Kapordelis

   and allowed to shower. Hotel video surveillance footage, concealed from


                                      37
   the magistrates, shows Dr. Kapordelis entering the Hotel with Juvenile-D

   and taking him back to the street in front of the Hotel approximately an hour

   and a half later.

 According to Government records reflecting Hotel security staff interviews

   (conducted in June and December, 2004), Juvenile-D denied any

   wrongdoing by Dr. Kapordelis when questioned by Hotel security staff on

   October 14, 2003. There was absolutely no information known to law

   enforcement to corroborate the allegation that Juvenile-D met Dr.

   Kapordelis on any day other than October 14, 2003.

 Juvenile-D explicitly told Attaché Lacy, during the April 8, 2004 interview,

   that he was molested on December 23, 2003 – a date that he was certain of

   because he “ran away the day before, on December 22, 2003.”              Dr.

   Kapordelis was not in Russia between December 8, 2003 and January 23,

   2004.   While this exonerative fact was known to the American agents

   involved in the case, it was intentionally and effectively concealed from the

   search warrant magistrates.     The Affiant demonstrated his agility at

   deception by changing the date from an impossible one, “December 23rd,” to

   a possible one, “sometime in December.” By concealing this information

   from the magistrates, the credibility of Juvenile-D was falsely maintained

   when it would have otherwise been firmly contested. American agents


                                     38
       claim that the change in the date was permissible and non obstructive

       because it merely provided a “general date” rather than a “specific one.”4

     Juvenile-D claimed to have met Dr. Kapordelis on two other occasions,

       specifically “in the summer of 2003” and also “around January 3 or 4,

       2004.” These encounters are inconsistent with Dr. Kapordelis’ actual trips

       to Russia as documented by the Russian Federation Customs entry/exit

       records, U.S. Passport records and U.S. Customs entry/exit records. Dr.

       Kapordelis’ first entry into the Russian Federation was not until October 14,

       2003 making the “summer, 2003” contact impossible. Dr. Kapordelis was

       not in Russia between the dates of December 8 th and January 23rd, making

       the January 3rd or January 4th date impossible as well.                       While this

       information was known to law enforcement, these irrefutable and

       exculpatory facts were concealed from magistrates, thus falsely preserving

       the integrity of Juvenile-D’s statements once again.

     In short, three of the four encounters that Juvenile-D alleged to have had

       with Dr. Kapordelis took place when Dr. Kapordelis was clearly not in

       Russia. On the one encounter when Dr. Kapordelis was actually in Russia,

4
  Defendant’s Argument: Imagine for a moment the scenario wherein Dr. Kapordelis was
described by an alleged victim as a “bald white man, six feet tall with an amputated right leg and
a tattoo of a Harley Davidson on his forehead.” Would it be permissible for the Affiant to report
in the search warrant affidavit ONLY that Dr. Kapordelis was described as a “white man” if all
the other attributes of the victim’s “specific statement” did not fit Dr. Kapordelis’ physical
attributes?


                                                39
       October 14, 2003, and fed Juvenile-D at the Hotel, Juvenile-D reported that

       he was not molested.          The magistrate was clueless about the Affiant’s

       escapades in the sworn affidavit regarding Juvenile-D.

     Juvenile-D also provided Attaché Lacy with an exact address where the

       alleged molestation took place on December 23rd.                    Not only was Dr.

       Kapordelis not in Russia on or near December 23rd, but he did not stay at

       this address then, or during any of his visits to Russia.                   Russian and

       American Law enforcement were aware of Dr. Kapordelis’ apartment

       building address, as they searched his apartment on April 8, 2004. This

       exculpatory fact was concealed from the magistrates. By concealing this

       information, the credibility of Juvenile-D was, again, falsely maintained

       when it would have otherwise been impeached.5

     The coercive relationship between Mr. Lapov and Juvenile-D has not yet

       been determined. Given that Mr. Lapov (and Officer Koroliova) forced

       Juveniles A and C to make false allegations of molestation, it is more than

       reasonable to assume that Juvenile-D’s “more bizarre and implausible”

       allegations were produced in the same fashion.                   More important, the

       eagerness of law enforcement to change dates, conceal the address

5
  The defense and the government reconciled the “name of the street” conflict that existed in this
argument; the street name attributed to Juvenile-D was the street that Dr. Kapordelis lived on.
The number of the building provided by the boy was #4 whereas Dr. Kapordelis never lived in
that building but in building #8, which was next door.


                                                40
      inconsistency and conceal the “other impossible encounters” suggests that

      Juvenile-D’s credibility problems were known to American agents and the

      obstructive "rehabilitation" was deliberate.

    American agents were aware that Juveniles A, C and D were friends and that

      they all had contact with Mr. Lapov prior to their interviews with U.S. law

      enforcement. This was not revealed to the magistrates.



C. The Magistrate’s Report and Recommendation as it Pertains to the Three
   Alleged Juvenile Victims:

Juvenile A:
Magistrate Brill accepted as true the following facts pertaining to Juvenile-A:

    Juvenile-A entered the room with both Dr. Racanska and Dr. Kapordelis and

      not with Dr. Kapordelis alone as alleged in the search warrant affidavit.

    Dr. Racanska is a Czech Republic physician who was registered with Dr.
      Kapordelis at the Hotel in November, 2003.
    Video surveillance showed Juvenile-A walking out of the room with Dr.
      Kapordelis and Dr. Racanska. The Juvenile did not run out of the room as
      stated in the search warrant affidavit.
    Juvenile-A was taken away by Hotel security. The security staff attempted
      to coerce the juvenile into saying that he was molested but Juvenile-A
      repeatedly denied that he was molested.
    Juvenile-A was transferred to a local police station with only a claim that he
      was found without adult supervision.


                                          41
    At the police station, Juvenile-A again denied wrongdoing by Dr.
      Kapordelis.
    Contrary to the sworn statement in the search warrant affidavit, it was not
      Juvenile-A but Mr. Lapov who presented the allegations of molestation to
      Officer Koroliova on March 6, 2004.
    Lapov was a child molester who had previously provided Juvenile-A with
      pornographic videos and attempted to sleep with him; the Juvenile refused.
    Prior to Juvenile-A’s interviews with American authorities (note: there was
      no interview prior to Dr. Kapordelis’ arrest), Lapov threatened Juvenile-A
      and insisted that he lie and falsely accuse Dr. Kapordelis.
    Lapov told Juvenile-A that Kapordelis was a doctor who took children to
      America and killed them to sell their organs.
    Juvenile-A was a street child who begged for food and money outside the
      Hotel and did not attend school.


Magistrate Brill did not address the following facts pertaining to Juvenile-A:

    When Juvenile-A was taken to the basement and interrogated and coerced by

      the Hotel security staff, the coercion took place in the presence of Russian

      police.

    Officer Koroliova was also involved in forcing Juvenile-A to provide false

      allegations about Dr. Kapordelis. Officer Koroliova threatened the juvenile

      with a “Billy club” beating if he did not comply.

    Every false statement made by Juvenile-A was orchestrated by Mr. Lapov

      and Officer Koroliova.

                                         42
Juvenile C:

Magistrate Brill accepted as true the following facts pertaining to Juvenile-C:

    Juvenile-C never alleged wrongdoing by Defendant until after Hotel security

      contacted Officer Koroliova in March, 2004.

    Lapov presented Juvenile-C to American agents and remained in the

      interview as an advocate authorized to protect the interest of orphans.

      Juvenile-C was not an orphan.

    Lapov had previously molested and physically abused Juvenile-C and other

      children.

    Lapov told Juvenile-C that Kapordelis was a dangerous criminal.

    Lapov also threatened Juvenile-C and insisted that he falsely accuse Dr.

      Kapordelis of molestation.

    Juvenile-C told Attaché Lacy on April 8, 2004 that he told the security staff

      in November, 2003 that he was not molested by the defendant.

    Hotel security guards slapped Juvenile-C several time in the face after he

      denied being molested by Dr. Kapordelis.

    Juvenile-C denied molestation by Dr. Kapordelis when questioned by

      Russian police in November, 2003.




                                         43
    There are inconsistencies between Koroliova’s March 18, 2004 interview of

      Juvenile-C when compared to the April 8, 2004 interview by Attaché Lacy.

    Juvenile-C knew Juveniles A and D.



Magistrate Brill did not address the following facts pertaining to Juvenile-C:

    The Affiant’s concealment from the search warrant affidavit of Juvenile-C’s

      expressed consent to engage in sexual relations with Dr. Kapordelis was

      never considered by Magistrate Brill. Even though Juvenile-C has admitted

      that there never was any sexual contact between him and the Defendant and

      that all the false statements were forced by Lapov, the Affiant was obligated

      to report the material facts in the search warrant affidavit regarding Juvenile-

      C’s interview.    The facts presented during Juvenile-C’s false statement

      would have clearly detracted from probable cause regarding criminal

      conduct in Russia because an alleged consensual relationship between two

      persons over the age of sixteen is not a federal crime, not a crime in Russia

      and not a crime in Georgia. There was no probable cause to believe that the

      alleged contact was an act of prostitution and there was no indication that the

      juvenile was incapacitated given that he fully described sex acts in his

      statement, albeit false and forcibly reported sex acts.




                                         44
 Lapov’s abuse of Juvenile-C was sexual and lasted for over four years,

   starting when the juvenile was thirteen years old.

 Officer Koroliova was aware of the sexual abuse by Lapov but did not

   intervene.

 There were over twenty-five material inconsistencies in the statements made

   by Juvenile-C, when comparing the March 18, 2004 interview to the April 8,

   2004 interview.

 A Hotel transfer note was written when Juvenile-C was taken to the police

   station on November 14, 2003. This transfer note reported no claims of

   molestation and only requested that he juvenile be identified in case there

   were complaints from guests.

 At the request of Hotel security, the juvenile wrote a personal statement on

   November 14, 2003 in which he confirmed that he only ate food, watched

   television and slept when he was with Dr. Kapordelis.

 The issue of “force” was not provided by Juvenile-C in any report of an

   interview.

 This juvenile was a street child who often begged for food or money outside

   the Hotel.




                                     45
Juvenile D:

Magistrate Brill accepted as true the following facts pertaining to Juvenile-D:

    Juvenile-D never made any allegations of molestation against defendant

       until April 8, 2004.

    Lapov presented Juvenile-D to American agents for the interview and

       remained in the interview as an advocate authorized to protect the interests

       of orphans. Juvenile-D was not an orphan.

    The affidavit claimed that Juvenile-D feared for his life (from defendant),

       yet this purported fear is not supported by any report or interview of the

       juvenile.

    Juvenile-D reported the specific date of his molestation as December 23,

       2003, a date he was certain of because he had run away on December 22,

       2003. Defendant was not in Russia between December 8, 2003 and January

       23, 2004.

    Juvenile-D also claimed to have met the defendant in the summer of 2003

       and also around January 3 or 4, 2004. Defendant was not in Russia during

       these times.

    The video clip alleged by Juvenile-D was not found during the searches of

       Dr. Kapordelis property.


                                         46
    Juvenile-D does not speak English and Dr. Kapordelis does not speak

       Russian.

    Juvenile-D often ran away from home and often begged for food and money

       outside the Hotel Grand Europe.

    Juvenile-D knew Juvenile A and C.



Magistrate Brill did not address the following facts pertaining to Juvenile-D:

    Juvenile-D was confronted by Hotel security after he was seen with Dr.

      Kapordelis and asked what he was doing in the Hotel. Juvenile-D made no

      allegations of wrongdoing against Dr. Kapordelis.




                                         47
D. Other Contents of the Search Warrant Affidavit That Contained
   Misrepresentations and Material Omissions Regarding Probable Cause
   that any Crime Had Been Committed:

  i.) The following information pertains to Juveniles B, G and H who were
  listed in the Affidavit to suggest that they were victims, when they were
  anything but:


  Juvenile B:

   The search warrant affidavit stated that the Hotel security staff and Officer

     Koroliova reported to American agents that Juvenile-B was seen

     accompanying Dr. Kapordelis to his Hotel room.

   The fact is, Juvenile-B never went with Dr. Kapordelis to his Hotel room or

     anywhere else for that matter. American agents were aware of this fact and

     the Government has conceded this as “an error.”

   There appears to have been no attempt by American agents to ascertain why

     the Hotel Security service and Russian police were providing false

     information about Juvenile-B to American agents.

   Equally alarming, Juvenile-B’s exonerative standing was not forthrightly

     and/or voluntarily presented to the defense, as one would have expected

     given that it pertained to a known falsehood which was presented in a sworn

     search warrant affidavit provided to a magistrate judge; it took a court



                                      48
   ordered interrogatory to compel the production of this exonerative

   information about Juvenile-B.

 Magistrate Brill accepted as true that (1) Hotel security and Officer

   Koroliova falsely reported that Juvenile-B was seen going with Dr.

   Kapordelis to his Hotel room; (2) the juvenile himself denied ever going to

   the Hotel and/or witnessing any improprieties by the defendant; and, (3)

   video surveillance tapes do not show Juvenile-B ever entering the Hotel.


Juvenile H:

 This is the juvenile that Dr. Kapordelis was adopting and is referred to as

   Juvenile-E in Magistrate Brill’s Report and Recommendation.

 According to the search warrant affidavit, Juvenile G and H were

   apprehended on April 8, 2004 “to ascertain their involvement with Dr.

   Kapordelis.” The Affiant reported that Juvenile-H alleged the following:

   (1) that Dr. Kapordelis gave Juvenile-H blue and white pills; (2) that “Dr.

   Kapordelis would use him to introduce him to other minor males that he

   would take back to his Hotel room or rental property: (3) that Dr.

   Kapordelis has taken at least eight minor males back to his Hotel room or

   rental property. In another section of the search warrant affidavit, the Affiant

   wrote that Juvenile-H brought boys to Dr. Kapordelis “for meets.” The search

   warrant affidavit also alleges that Dr. Kapordelis was seen “tapping the

                                      49
   juveniles (G and H) on their rear ends” while walking down the street under

   video surveillance by Russian police.

 Juvenile-H has categorically denied ever making any of these statements

   and claims that it was the Russian Police officer (now known to be Lapov)

   who said that he was bringing boys to his future father for sexual purposes.

   The Affiant’s effort to transform adult-supervised birthday dinners, adult-

   supervised bowling outings and adult-supervised trips to the circus, i.e.,

   supervised and chaperoned by adult orphanage personnel, into arranging

   meets for sexual purposes is characteristic of the insidious perversion of the

   truth that pervades the search warrant affidavit. As for the misrepresentation

   that Dr. Kapordelis was seen tapping the juveniles on their rear ends: (1)

   actual surveillance footage demonstrates that this did not occur; and, (2)

   Russian police reports state that Dr. Kapordelis had his arm around the

   juveniles’ shoulders and waists but there was never any allegation that Dr.

   Kapordelis was “tapping” anyone’s rear end.

 Juvenile-H has confirmed that he never made any claim about “blue and

   white pills.”

 Juvenile-H provided only exculpatory information regarding Dr. Kapordelis,

   none of which was included in Agent Brant’s search warrant affidavit.

   Instead, American agents twisted and misrepresented every comment made


                                      50
   by Juvenile-H in order to fashion probable cause of criminal behavior from

   exclusively exonerative statements.

 As mentioned earlier in this brief, Agent Brant never disclosed to U.S.

   magistrates the fact that Dr. Kapordelis was approved to adopt from Russia

   or that he had been visiting St. Petersburg, and the orphanage, specifically to

   process Juvenile-H’s adoption.

 Juvenile-H confirmed that he spoke with Attaché Lacy on April 8, 2004 and

   told him that Dr. Kapordelis was innocent.         This specific exonerative

   statement was never reported to the U.S. magistrates.

 Attaché Lacy continued to misrepresent the truth to the court (via pleadings

   from the Government) by claiming that he never interviewed Juvenile-H

   prior to Dr. Kapordelis’ arrest. Evidence refuting this assertion includes: (1)

   the search warrant affidavit which stated that Juvenile G and H were

   apprehended to ascertain their involvement with Dr. Kapordelis; (2) the

   Affiant reported that Attaché Lacy questioned Juvenile-H prior to Dr.

   Kapordelis’ arrest; (3) Juvenile-H confirmed that he told Attaché Lacy on

   April 8, 2004 that Dr. Kapordelis was innocent of any wrongdoing; (4)

   Juvenile-H reported that his proclamation of Dr. Kapordelis’ innocence was




                                      51
       completely twisted and misrepresented by “a Russian officer”6 who was

       relaying the false information to Attaché Lacy; (5) Juvenile-H states that he

       was    restrained    (physically) from providing           additional exculpatory

       information to Attaché Lacy when they were together for hours outside Dr.

       Kapordelis’ apartment in Russia during the execution of the search warrant.

       It is abundantly clear why Attaché Lacy wishes to avoid the appearance of

       having spoken with Juvenile-H prior to Dr. Kapordelis’ arrest.

     Juvenile-H told the police officer that not only had he never been sexually

       approached or molested by Dr. Kapordelis, but added that he had never

       heard of any improper behavior between Dr. Kapordelis and any other child.

       This exoneration was not revealed in the search warrant affidavit.

     Moments prior to Juvenile-H’s interrogation by police on April 8, 2004, he

       was twice hit in the face by a Russian police officer (now known to be

       Andrei Lapov) and told that “he [the officer] would beat my [Juvenile-H’s]

       brains out if I [Juvenile-H] didn’t give them the necessary findings against

       Greg [Dr. Kapordelis].” This coercive beating of a detained minor by law

       enforcement was concealed from U.S. magistrates.




6
  Government records confirm that Mr. Lapov was conducting the interrogation of Juvenile-H
with Officer Koroliova and that American Agent Kishkinsky was the only person providing
translation between Russian and English


                                             52
 Mr. Lapov told Juvenile-H that Dr. Kapordelis was an anesthesiologist who

   worked at a clinic in Georgia where they performed organ transplants; that

   he had adopted six Russian children already and had taken these children to

   the USA where he removed the children’s organs before killing them.

   Juvenile-H was both frightened and intimidated. The magistrates were not

   told that these types of intimidation tactics were used on minors during their

   interrogation.

 According to Juvenile-H, when he told the Russian police officer that Dr.

   Kapordelis had hugged him around his shoulders, the officer immediately

   said, “well then, write it down, that he sexually approached you,” although

   it was nothing like that. Juvenile-H said that the police officer also told him

   that “because Dr. Kapordelis was hugging (him) around (his) shoulders, he

   was sexually pursuing (him) in this manner.”          Based on government

   documents, this “Russian officer” was either Mr. Lapov or Agent

   Kishkinsky.

 Juvenile-H reported that during the interview by Russian police on April 8,

   2004, he was told that Dr. Kapordelis “was a very dangerous criminal,

   who rapes children, and that he is in hiding at the present time from the

   American police under another name;” and, that “the orphanage director

   was “gay” and that he provides children to Dr. Kapordelis for sex.” While


                                      53
   reasonable intimidation of adults during interrogations is tolerated in the

   greater interest of justice, the use of these tactics with juveniles is not

   condoned, not helpful and not appropriate. At a minimum, the magistrate

   should have been informed so that the possibility of coercion and/or

   fabricated false statements could be considered.

 Mr. Lapov and Officer Koroliova were both involved in the interrogation of

   this boy on April 8, 2004. The affidavit concealed Mr. Lapov’s identity, his

   integral involvement in every aspect of this investigation and his criminal

   conduct.    It can be readily deduced that Mr. Lapov’s identity was

   deliberately concealed from the search warrant magistrates given the

   redactions in official documents described elsewhere in this brief.

 Magistrate Brill rejected any obligation on the part of the Affiant to disclose

   the true facts surrounding Dr. Kapordelis visits to Russia and his legitimate,

   legal and innocent involvement with Juvenile-H and the orphanage;

   Magistrate Brill asserted that these “innocent” activities could easily be

   assumed to be characteristics of pedophilia. The defense disagrees. The

   purpose behind excluding all evidence establishing Dr. Kapordelis’

   legitimate activities in Russia was to ensure that U.S. magistrates would only

   conclude that Dr. Kapordelis was criminally engaged rather than not.




                                     54
 Magistrate Brill also rejected any obligation on the part of the Affiant to

   include in the search warrant affidavit the beating and intimidation of

   Juvenile-H by law enforcement because Juvenile-H was not an alleged

   “victim” in the search warrant affidavit. The defense disagrees. Evidence

   has been presented which demonstrates that the juveniles who were actually

   making allegations of molestation were doing so because they were forced

   and coerced by Officer Koroliova and/or Mr. Lapov. Any evidence that this

   type of coercive and obstructive conduct befell other juveniles, like Juvenile-

   H and Juvenile G, is not only relevant and material but absolutely necessary

   if the affidavit is to be considered credible.

 Magistrate Brill concluded that the misrepresentation that Juvenile-H was

   bringing boys to Dr. Kapordelis for “meets” is acceptable because it is not a

   false statement.    The defense disagrees. This type of misrepresentation

   occurred over fifty times and poisoned the entirety of the search warrant

   affidavit. Moreover, it was false, not true.

 Magistrate Brill did not consider in her Franks analysis Juvenile-H’s claim

   that he never said anything about “blue and white pills.” Magistrate Brill

   deemed that any omissions which were not specifically discussed in her brief

   were irrelevant or immaterial. The defense contends that it is both material

   and relevant to a Franks challenge if law enforcement is fabricating material


                                       55
   statements (i.e., evidence) and attributing it to a juvenile in order to convince

   a magistrate that Dr. Kapordelis is engaging in criminal behavior when he is

   not.



Juvenile G:

 This juvenile is referred to as Juvenile-F in Magistrate Brill’s Report and

   recommendation. Juvenile-G is a friend of Juvenile-H; they lived together at

   the orphanage (Dom Miloserdia).

 The search warrant affidavit states that Juvenile G and H were apprehended

   “to ascertain their involvement with Dr. Kapordelis.”           Other than this

   “promise” of information, nothing more was reported by Agent Brant about

   the contact between Juvenile G and law enforcement.

 Juvenile-G was with Juvenile-H on April 8, 2004 when the Russian police

   apprehended them as they were walking towards Dr. Kapordelis’ apartment.

   This took place shortly after Dr. Kapordelis, Mikhail Marchenko (Dr.

   Kapordelis’ translator) and the juveniles ate supper at the Hotel Grand

   Europe.

 Juvenile-G provided entirely exonerative information about Dr. Kapordelis.

   Once again, the Affiant concealed the exonerative statements and presented




                                       56
   the juvenile’s name in the search warrant affidavit to imply that he was a

   victim, when he was not.

 Juvenile-G was interrogated separately from Juvenile-H and was also told by a

   Russian police officer that Dr. Kapordelis routinely molests children and kills

   them afterwards. The Russian officer then told Juvenile-G that Dr. Kapordelis

   had “already killed six Russian children in America after he gutted their

   organs.” Doughnuts to dollars, this Russian officer was none other than Mr.

   Lapov. None of this was revealed in the search warrant affidavit.

 Juvenile-G told the officers that Dr. Kapordelis would often visit St.

   Petersburg and visit with them at the orphanage.        He then described a

   birthday celebration that Dr. Kapordelis had at his apartment for Juvenile-H.

   At the dinner, Juvenile-G said there were two adult group leaders and

   several children from the orphanage present. This exculpatory information

   was deliberately misrepresented by the Affiant in the search warrant

   affidavit.

 Magistrate Brill concluded that ALL exculpatory information does not need

   to be included in a search warrant affidavit. The defense argues that none of

   the exculpatory or exonerative information was presented anywhere in the

   search warrant affidavit and that this was deliberate, not by accident. If this

   is to become a new standard for search warrant affidavit application


                                      57
   integrity, the courts should do away with the oath of affirmation (which

   demands the whole truth) and subsequently provide each law enforcement

   agent with his own judicial rubber stamp enabling self approval of search

   warrant applications.

 Magistrate Brill did not address the issue of Juvenile-G’s coercion or

   intimidation by law enforcement. Again, the defense maintains that every

   single act of coercion or violence against juveniles in this investigation was

   concealed.    The fact is that this act, eliminated from the magistrate’s

   purview, concealed the larger problem concerning the forced false

   statements made by the three alleged victims.



ii.) Hotel Issues:

 Agent Brant’s affidavit states that (1) it was the Hotel Grand Europe security

   service that telephoned the St. Petersburg Police on or about March 1, 2004

   and requested the investigation of Dr. Kapordelis for possible molestation of

   juveniles; (2) after this phone call by the Hotel security service, Officer

   Koroliova established an “operational agent” (who the defense now knows

   to have been Mr. Lapov, though his identity was concealed in the affidavit);

   (3) the Hotel security staff presented law enforcement with the names of

   the three juveniles (A, C, D) who were seen with Dr. Kapordelis in the


                                     58
       Hotel. As explained above, this was not the case of three juveniles who

       were being identified because they had filed complaints of molestation

       against Dr. Kapordelis with the Hotel or with the police; this was the case of

       three juveniles who had each denied inappropriate behavior by Dr.

       Kapordelis in October and November, 2003 when they were initially

       questioned, but who were now being specifically confronted by Mr. Lapov

       and Officer Koroliova so that they would provide forced false statements

       against Dr. Kapordelis.

     American agents knew that four months prior to the March 1, 2004 telephone

       call by the Hotel Grand Europe security service to the St. Petersburg police,

       Dr. Kapordelis was the victim of an extortion attempt by the same Hotel

       security service. (This event was briefly referred to in the section related to

       Juvenile-A.) Agent Brant also knew that Dr. Kapordelis was a guest at the

       Hotel in October and November, 2003 and that he had not resided at the

       Hotel since that encounter.

     The extortion attempt by the Hotel Security Chief occurred after Dr.

       Kapordelis and Dr. Eva Racanska7 discovered Juvenile-A begging for food

       in front of the Hotel entrance on November 14, 2003 and subsequently fed

7
  Dr. Eva Racanska is a physician from the Czech Republic. She and Dr. Kapordelis have been
close friends since 1999. Dr. Racanska was visiting Russia with Dr. Kapordelis in November,
2003 in order to meet Juvenile-H, the boy Dr. Kapordelis was adopting. She was registered as a
guest in Dr. Kapordelis’ Hotel room.


                                              59
   him via room service. Dr. Kapordelis and Dr. Racanska invited the juvenile to

   the Hotel room. Within approximately thirty minutes, room service delivered

   food (cheeseburger, chicken tenders, fries and a cola) to the room.

   Approximately thirty minutes later, the two doctors were returning Juvenile-A

   to the street when, in the lobby of the Hotel, the Security Service confronted the

   group, apprehended the juvenile and took him away.

 The Security Staff took Juvenile-A to the basement of the Hotel where he was

   interrogated for one hour by both the Hotel Security Service and St. Petersburg

   police officers.   Despite Juvenile-A’s resolute denials, the Hotel Security

   Service and police officers attempted to coerce Juvenile-A into claiming that he

   was sexually molested; Juvenile-A refused to collude.           This effort was

   witnessed by Juvenile-A’s mother who had been summoned to the Hotel.

   Juvenile-A repeatedly told the Hotel Security Service and Russian police

   officers that he only ate food provided by Dr. Kapordelis and Dr. Racanska via

   room service, and that nothing else happened. This coercive interrogation was

   concealed from the U.S. Magistrates, as was the juvenile’s denial of any

   inappropriate behavior on the part of Dr. Kapordelis, even though the

   interview was conducted in the presence of Russian law enforcement.

 On November 15, 2003, the morning after Juvenile-A’s interrogation, and

   corroborating the fact that he denied any sexual molestation or inappropriate


                                       60
   behavior by Dr. Kapordelis, the Hotel Security Service filed a written “transfer

   note” with the St. Petersburg police department, 79 Militia Station, stating that:

         “JUVENILE-A was apprehended at night time at the premises of

         the Grand Hotel Europe. He was not accompanied by adults

         and he was not staying in the Hotel. We ask you to determine his

         parent’s place of residency and passport data in case there will

         be complaints from Hotel guests.”

 The transfer note did not allege molestation or wrongdoing by Dr.

   Kapordelis even though the note was written after the Security Service and

   Russian police attempted to produce that very allegation from Juvenile-A

   during the basement interrogation.

 Juvenile-A was then transferred to the local police station where he again

   denied any wrongdoing by Dr. Kapordelis.

 No police report was created alleging any molestation or impropriety by Dr.

   Kapordelis, yet the Hotel Security Chief approached Dr. Kapordelis’

   translator on November 15, 2003 at approximately 9:00 A.M. and stated that

   a police report existed which claimed that Dr. Kapordelis sexually molested

   Juvenile-A and that “the problem needed to be fixed.” This false claim by

   the Hotel Security Chief was the very event which convinced Dr.

   Kapordelis, Dr. Racanska and Ms. O’Regan (the translator) that the Security


                                       61
  Chief was attempting to extort. This entire issue was concealed from U.S.

  Magistrates.

 On November 16, 2004, Dr. Kapordelis and Ms. O’Regan informed the

  Hotel managers of the extortion attempt in a formal meeting held in Dr.

  Kapordelis’ hotel suite. American agents were aware that Dr. Kapordelis

  filed a written formal complaint with the managers of the Hotel Grand

  Europe (Mr. Grief and Mr. Bosse) on November 19, 2003. In the letter, Dr.

  Kapordelis insisted on a formal investigation of the Security Service “in

  short time” because he feared that the guards were not limited to extortion

  attempts after trying to fabricate acts of molestation; instead, Dr. Kapordelis

  was concerned that the Hotel Security Service was actually permitting or

  encouraging street kids into the Hotel so that the guards could benefit

  monetarily by extorting guests. Dr. Kapordelis and Dr. Racanska made this

  deduction when they reflected on the fact that the Hotel Security guards, at

  least six of them standing at the entrance, seemed completely disinterested

  when they entered the Hotel with Juvenile-A, but showed quite the opposite

  reaction when they were walking him out of the Hotel an hour later.

  In the letter, Dr. Kapordelis wrote,

        “I was not guilty of any wrongdoing with this child but I recognize
        that your security staff’s intense desire for there to be wrongdoing
        must be for a reason. Money is often a source of motivation in my

                                         62
        Country; perhaps it is the same in Russia. I must be convinced
        that there is not a sinister plot involving your Hotel Security
        and/or the Police. Serge’s mother’s report about the questioning
        of her child leads me to believe that the police wanted very much
        for a crime to exist even though the boy refuted this over and over
        again.”
  Dr. Kapordelis concluded that the attempt to extort from him was aborted

  because Juvenile-A would not conspire with the Hotel Security Service in

  making false accusations and, more importantly, because Dr. Kapordelis

  officially reported the Security Service’s efforts to the management of the

  Hotel. The Security Chief’s financial motivation is clearly illustrated by the

  fact that he still confronted Ms. O’Regan on November 15, 2003 and

  claimed that there was a police report documenting Juvenile-A’s

  molestation, when no such claim was made by the juvenile and no such

  police report existed. Law enforcement did not disclose the letter or the

  extortion attempt to the magistrates, leaving the reputation and integrity of

  the primary informants in this case as pure as the driven snow.

 American agents were also aware that Dr. Kapordelis’ November, 2003

  complaint against the Hotel security service predated (by almost four

  months) the March 1, 2004 request by the Hotel security service to

  investigate Dr. Kapordelis. American agents were warned that the Hotel’s

  allegations were retaliatory and intended to negate or discredit Dr.

                                     63
   Kapordelis' claims against the Hotel.     The defense contends that this

   information was intentionally concealed from the search warrant magistrate

   because it undermined the probable cause equation and further challenged

   the credibility of those with whom the American agents were “jointly”

   engaged.

 Law enforcement knew that there were no complaints by any juveniles

   against Dr. Kapordelis prior to the March 1, 2004 phone call from Hotel

   security staff to the St. Petersburg police and Mr. Lapov's subsequent

   involvement in this case.

 Agent Brant's affidavit indicates that law enforcement interacted with Hotel

   security prior to April 12, 2004 but no record of any such interaction or

   interview was presented to the defense.

 The affidavit submitted by Agent Brant claims that the Hotel security guards

   suspected Dr. Kapordelis of molesting juveniles; yet, in April, 2005, the

   American agents provided interview reports, pertaining to interviews

   conducted with Hotel security in June and December, 2004, which confirm

   that all three juvenile claimants exonerated Dr. Kapordelis in October and

   November, 2003, when they were each confronted by Hotel security as they

   were leaving the Hotel. These reports provide no reasonable explanation or

   motivation for the Hotel security staff’s call to the police in March, 2004,


                                     64
  given the juveniles’ categorical denials of wrongdoing. In short, the Hotel

  security staff had no legitimate reason to report any suspicions of

  molestation because each of the three juveniles denied it months earlier. The

  only reasonable deduction to be gleaned from these facts is that the Hotel

  security staff had some significant reason to assume that the juveniles’

  stories would be different in March, 2004 to the statements irrefutably

  reported in October and November, 2003.              The magistrate had no

  opportunity to consider any of this information because all of these material

  facts were concealed by the Affiant.

 Based on a review of all Government documents made available to the

  defense, it is evident that American agents knew about, but never asked the

  Russians (Officer Koroliova, Mr. Lapov or the Hotel security staff) one

  question about (1) the extortion attempt upon Dr. Kapordelis; (2) the

  meeting Dr. Kapordelis had with the Hotel managers regarding the extortion

  attempt; (3) the letter Dr. Kapordelis wrote to the Hotel managers

  demanding an investigation of the security staff; (4) the Hotel’s response to

  Dr. Kapordelis’ letter; or, (5) the false accusation made by the Hotel

  and Russian police pertaining to Juvenile-B.          And, of course, more

  importantly, the affiant failed to reveal any of this information to the issuing

  Magistrate.


                                     65
 To date, no interview reports have been provided which document any

  interviews of Dr. Racanska, Ms. Alla O’Regan or the two Hotel managers –

  each of whom was a material witness to the chain of events described

  above.

 In Magistrate Brill’s Report and Recommendation, she concluded that: The

  extortion attempt upon Dr. Kapordelis was not well founded and not

  material. The defense disagrees and asks that an evidentiary hearing be

  conducted to further address the issue. Interestingly, the witnesses who were

  specifically involved in this event have not even been interviewed by law

  enforcement despite their direct material knowledge of the relevant issues.

  Law enforcement’s effort to conceal this issue cannot be denied or

  minimized; a showing has been made for an evidentiary hearing if there are

  any doubts as to the event itself or the degree of government misconduct

  regarding this issue or its concealment.

 In Magistrate Brill’s Report and Recommendation, she concluded that: The

  extortion attempt could have just as well been entrapment based on

  defendant’s letter.   The defense disagrees.    Entrapment occurs when a

  person, typically law enforcement, induces criminal conduct on the part of a

  person who was not predisposed to do so. In Dr. Kapordelis’ case, the Hotel

  security staff was directly confronted and accused of an extortion attempt


                                     66
   because they fabricated a false claim and attributed it to a juvenile who

   actually denied wrongdoing. Then, the security staff demanded that “the

   problem (which never took place and was never alleged by the juvenile to

   have taken place) be fixed.” Dr. Kapordelis’ letter concerned not only the

   extortion attempt described above but also the more troubling supposition

   that the Hotel security staff might be placing children outside the Hotel so

   that bad things would happen to them, thus enabling the security staff to

   profit after the fact. The issue of the extortion attempt and the issue of the

   children being placed outside the Hotel doors for profit were separate issues,

   a fact which is well addressed in the letter written by Dr. Kapordelis.



iii.) Issues Concerning Mr. Andrei Lapov:

 Mr. Lapov is an operational agent who works with Officer Koroliova of the

   St. Petersburg police. He was involved in every aspect of Dr. Kapordelis’

   investigation and worked directly with Russian and American agents from

   March, 2004 until October, 2005. Mr. Lapov’s integral involvement in this

   case was not revealed to U.S. magistrates in the search warrant application;

   his name was not mentioned even once.

 As mentioned earlier in this brief, Mr. Lapov’s name was redacted from

   every ICE “record of interview” provided to the defense until April, 2005. It


                                      67
   was not until after the defense team exposed Mr. Lapov’s criminal

   involvement in this investigation that the Assistant U.S. Attorney decided to

   reveal Mr. Lapov’s identity as the bogus “confidential informant” as well.

 Mr. Lapov is a felon, having been convicted for two major thefts in Russia.

   In those thefts, Mr. Lapov used either a thirteen or fourteen year old boy as

   an accomplice.    The U.S. magistrate was not apprised of Mr. Lapov’s

   criminal history or his use of a child in the commission of felonies.

 As mentioned earlier in this brief, Mr. Lapov was the first person to locate,

   approach and converse with the three juveniles (A, C, D) who were

   identified by Hotel security guards as having had innocent contact with Dr.

   Kapordelis. There were no allegations of molestation from any juvenile

   prior to Mr. Lapov’s involvement.

 As mentioned earlier in this brief, Mr. Lapov personally brought two of

   these juveniles (C and D) to American agents for their official interviews.

   Mr. Lapov was allowed to personally monitor and influence the juvenile’s

   statement during each interview under the guise of being a “child advocate”

   who was there to protect the interests of the “orphans.” The fact is that

   neither of these juveniles is an orphan and Mr. Lapov is as close to being a

   child advocate as John Ashcroft is to being an advocate for civil liberties.

   Mr. Lapov’s direct control of these juvenile claimants and his influence in


                                      68
       these interviews and all other aspects of the investigation, while known to

       American agents, was not revealed in the affidavit to the U.S. magistrates.

     As mentioned earlier in this brief, both Juvenile-A and Juvenile-C have

       admitted that they never were molested or sexually approached by Dr.

       Kapordelis and that Officer Koroliova and/or Mr. Lapov demanded that they

       lie in their interviews so that Dr. Kapordelis would be arrested by the

       American agents. Juveniles A and C have acknowledged that they falsely

       accused Dr. Kapordelis only because they were threatened with physical

       harm or prison if they did not comply.8

     Mr. Lapov sexually molested Juvenile-C for over four years; the assaults

       began when the juvenile was thirteen years old. There was no mention of

       Mr. Lapov’s molestation of Juvenile-C to the U.S. magistrate despite the fact

       that Officer Koroliova, who was the lead investigator in this case, was aware

       of the ongoing sexual abuse.

     Mr. Lapov sexually exploited and attempted to sexually molest Juvenile-A

       prior to Dr. Kapordelis’ first visit to Russia.

     As mentioned earlier in this brief, the government concedes that the March

       6, 2004 statement reflected in the affidavit and attributed to Juvenile-A was


8
  This information does not suggest that the juveniles “changed their version” of what happened
to them; they deny ever being molested and claim that they only falsely reported to have been
molested because of the threats made by law enforcement.


                                               69
   actually provided by Mr. Lapov to Officer Koroliova, not by the juvenile

   himself.

 Juvenile-H (Alex, the boy Dr. Kapordelis was adopting) was beaten by Mr.

   Lapov during an interrogation on April 8, 2004. According to Juvenile-H,

   Mr. Lapov threatened to advance the severity of the beating if he did not

   falsely accuse Dr. Kapordelis of molestation.

 During (or immediately after) his training with the police, Mr. Lapov began

   working at a juvenile assignment and detention center. This is a police

   facility where minor children are taken if they are found wandering the

   streets of St. Petersburg. According to the deputy director of this police

   facility, Mr. Lapov was permanently fired because of allegations that he was

   sexually abusing children at his residence. None of this was revealed to U.S.

   magistrates.

 Mr. Lapov later worked for Special School #1 in St. Petersburg. This school

   housed approximately 140 juveniles between the ages of 11 and 14 in a

   locked facility. Mr. Lapov was allegedly fired from this facility in 1996

   because of allegations of sexual misconduct with children. The Government

   has disclosed documents showing that Mr. Lapov was accused of physically

   abusing a minor at the same school. Based on the documents provided by

   the Government, it appears that this investigation was terminated by the


                                     70
   police department, not by the courts. This information was not revealed to

   the U.S. magistrates.

 In May, 2000, criminal complaints were filed by several children against Mr.

   Lapov for sexual molestation. According to the deputy prosecutor in St.

   Petersburg, a criminal investigation by the prosecutor’s office commenced

   but was discontinued, allegedly after pressure had been applied by the St.

   Petersburg police department. Mr. Lapov was a known informant/agent

   with the police department at the time and the Russian prosecutor alleged

   that the police department insisted that Mr. Lapov could not be prosecuted

   for his crimes against children because of his working relationship with the

   police.

 One of the juveniles, who filed a child molestation complaint against Mr.

   Lapov in May, 2000, has confirmed that he was repeatedly sexually

   victimized by Mr. Lapov for over one year; this boy was only eleven years

   old when the abuse began. This juvenile further claims that Mr. Lapov

   forced him to revoke his criminal complaint against Mr. Lapov so that the

   investigation would be discontinued.      The defense has provided the

   American government with the criminal case number and the date when the

   Russian prosecutor’s office began its investigation. The government has not




                                    71
       provided the defense with any documents9 regarding the claims against Mr.

       Lapov or the legal/illegal disposition of the charges.

     Russian law enforcement presented American agents with baseless and

       absurd “operational information” that Dr. Kapordelis was connected with a

       Russian citizen named Prasolov and was involved in the sexual molestation,

       videotaping and photographing of minor “girls.”

           o The Government is aware that (1) there was never any claim by any

              juvenile of “videotaping and photographing sexual activity;” (2) there

              were no allegations from any claimant that any child or adult

              pornography ever existed or was ever seen; (3) there was no evidence

              discovered of any pornography (child or adult) during both searches

              of Dr. Kapordelis’ computer and during the two-hour search of Dr.

              Kapordelis’ apartment and camera equipment in Russia.

           o Instead of confronting the Russian police about the false information

              presented by them against Dr. Kapordelis, the Affiant elected to

              modify the Russian’s information and affirm, instead, that Dr.

              Kapordelis was sexually molesting, videotaping and photographing

              minor “boys” rather than “girls.” The Affiant then attributed his
9
  From what the defense has learned, the Russian government produces a dossier when any
criminal complaints are issues against a Russian Citizen. This dossier should not only reveal
how many children actually filed sexual complaints against Mr. Lapov but should also chronicle
the course of the investigation and expose the identity of the person who dismissed the charges
and the basis for such an action.


                                              72
         fabricated version of the information to the “confidential source” of

         information. As noted earlier in this brief, this “source” has been

         positively identified as Andrei Lapov.

 Magistrate Brill assumed that the following facts about Mr. Lapov were true

   but that these issues could not be attributed to American Agents or the

   Affiant:

      o Lapov (and Koroliova) forced juveniles A and C to make false

         allegations against Dr. Kapordelis

      o Lapov sexually abused Juvenile-C for over four years from the age of

         thirteen and attempted to molest Juvenile A.

      o Lapov, as the “Operational Source of information” should be given

         “little weight.”

      o Lapov is a convicted felon who used a 14 year old juvenile in the

         commission of his crimes.

      o Lapov also coerced another juvenile (Juvenile-M), who is not

         mentioned in the search warrant affidavit, to make false allegations

         that he was molested by the defendant.

      o Lapov previously worked as a police operations officer at a facility for

         juvenile offenders but was dismissed from this job after criminal

         charges were brought against him for sexually molesting minors.


                                     73
      o The Russian prosecutor was pressured by the police department to

         drop charges against Lapov and the charges were not pursued. The

         Russian prosecutor believes that the police were providing to Lapov

         the names of the children who were bringing charges against him and

         that Lapov was able to force the victims to revoke their testimony.

 While Magistrate Brill agreed to provide little weight to the statement

   attributed to Mr. Lapov, she refused to consider the fact that the Affiant

   actually changed the original false statement about “girls” in order to present

   a new and improved false statement about “boys” which was corroborative

   of the allegations against Dr. Kapordelis.       Just as demonstrated with

   Juvenile-C’s statement, actual facts meant nothing to Agent Brant because

   he was equipped with an imagination an eraser and autonomous editorial

   licensure.

 Magistrate Brill refused to attribute any of the information “accepted as

   true” about Mr. Lapov to the Affiant despite the obvious collusion that

   existed between Russian and American agents during this investigation.

   Magistrate Brill asserted that there was no colorable argument made by the

   Defendant to support the proffer that American agents knew what Lapov

   was up to or that they knew anything about his criminal history. The




                                      74
defense disagrees and provides the following examples of color, all of which

existed prior to the execution of the search warrants in question:

   o False statements were being made by juvenile claimants who were

      under Mr. Lapov’s direct control. The Affiant’s knowledge of the

      falsities is illustrated by his effort to repeatedly conceal any indication

      that they existed. The statements presented by the juveniles were so

      fatally infirmed that the Affiant himself changed the content of them.

   o Mr. Lapov was misrepresented by the Russian government as a child

      advocate for orphans and, as such, allowed to control the actual

      interview of the juveniles. The Affiant’s failure to disclose Mr.

      Lapov’s identity in the search warrant affidavit was deliberate.

   o American agents redacted Mr. Lapov’s name from every interview

      document until April, 2005. This was also deliberate.

   o Lapov was not revealed as the bogus “operational source” until the

      Government was forced to do so (August, 2005). The Russian

      document which exposed the false claims made by the “operational

      source” was provided to the defense in April, 2005 even though it was

      authored by the Russians and presented to American agents in April,

      2004. This information was deliberately concealed and demonstrates

      the “secret” being hidden by American agents.



                                   75
      o It was the Affiant who altered the statement which, according to the

         Russian government, the “operational source” provided. This

         supports the Defendant’s assertion that American agents knew that

         Mr. Lapov was himself making false accusations against Dr.

         Kapordelis. If the Affiant deemed that Mr. Lapov’s information was

         credible, he would not have altered it in order to bolster probable

         cause.

      o Giglio information concerning Mr. Lapov was not provided to the

         defense until the Government was compelled to do so because of Mr.

         Lapov’s exposure.

      o American agents concealed the fact that Mr. Lapov had actually

         himself presented one of the three claims of molestation used in the

         affidavit to secure the arrest warrant. This search warrant stated that

         Juvenile-A presented his claim directly to law enforcement. This was

         not true and American agents knew it was not true.

 Magistrate Brill did not address the government’s redaction of Mr. Lapov’s

   name from official documents nor did she address the fact that he was

   misrepresented during the investigation in an effort to validate his

   participation in witness interviews.




                                      76
iv.) Searches conducted in New York and Russia:

       On July 5, 2005, Magistrate Brill held a hearing to gather evidence about

Dr. Kapordelis’ arrest in New York and the search of his property which had

been seized at the airport. This testimony is relevant to two issues: (1) whether

the information supported probable cause to believe that the Defendant was

engaged in criminal activity in the United States; (2) whether the information

supported probable cause to believe that evidence of criminal activity would be

found in the Defendant’s home, office and computer.        The issues discussed

below are relevant to both the Franks challenge and the Nexus challenge

(discussed in detail in Section II of this Brief).

 Russian law enforcement, in conjunction with American agents, conducted

   an extensive two hour search of Dr. Kapordelis’ apartment on April 8, 2004.

   This search was made without warning and Dr. Kapordelis was unaware that

   he was being followed by the Russian police prior to the search. The

   physical search of the apartment revealed no illicit drugs and no other

   contraband of any kind. The blue and white pills alleged by two juveniles,

   were not there.     All personal video tapes found in the apartment were

   reviewed by law enforcement and none depicted sexually explicit or even

   sexually suggestive content. This entirely fruitless search was not revealed

   to the U.S. magistrates; clearly it would have detracted from the probable


                                        77
  cause determination and suggested that Dr. Kapordelis was innocent rather

  than guilty.

 Dr. Kapordelis’ laptop computer was explored in Russia for two hours by

  one dedicated investigator. Dr. Kapordelis’ translator, Mikhail Marchenko,

  witnessed this extensive search and has provided his affidavit to confirm this

  information. There was no child or adult pornography discovered on Dr.

  Kapordelis’ computer even though the agent insisted on looking at every one

  of the photographs and movie clips on the hard drive. There was also no

  movie clip of Juvenile-D, as alleged. The U.S. magistrates were only told

  that there was a “quick search” of Dr. Kapordelis’ computer rather than the

  truth about the extensive search that was conducted.

 Attaché Lacy was working jointly with the St. Petersburg Police before,

  during and after the physical search of Dr. Kapordelis’ apartment.

  Moreover, Attaché Lacy was physically present at the apartment building

  with his Russian counterparts during the search. The defense has requested

  the following documents from the U.S. Government: (1) A copy of the

  Russian affidavit used to secure the search in Russia; (2) a copy of the

  Russian search warrant application authorizing the search; and (3) the report

  confirming the fruitless results of the search. This request was denied. The

  defense contends that these documents would reveal the specific and integral


                                    78
  involvement and direction of Attaché Lacy in the joint investigation and in

  the search and detention of Dr. Kapordelis in Russia. A motion to compel

  the Government to obtain these documents was denied. An evidentiary

  hearing may be the only venue to ascertaining what transpired in this

  particular phase of the investigation given the reluctance of the Government

  to make these essential documents available to the defense.

 In New York, when Dr. Kapordelis was arrested, his laptop computer was

  again searched, this time by American ICE agents. According to Agent

  Coleman, who testified in Magistrate Brill’s court, this search was specific

  for child pornography but no pornography was found. This fruitless search

  was entirely consistent with the two hour long fruitless search of the same

  computer in Russia. This search was concealed from the U.S. magistrate

  who was asked to sign the search warrant applications, despite the fact that

  this specific laptop computer (and the camera equipment that the defendant

  possessed) was the target of the search warrant application seeking to

  rummage through the Defendant’s home and office. The Affiant deceived

  the magistrate into assuming that the laptop and cameras were at the

  Defendant's home when he knew all along that these items were with the

  defendant – and his colleagues at ICE – in New York. The Affiant swore in

  the search warrant affidavit that there was probable cause to believe that


                                    79
   there was either contraband or evidence of a crime in the computer, when he

   knew that both Russian law enforcement officers and his own colleagues at

   ICE had searched the computer and found neither.

 Magistrate Brill found the following as true regarding the search in Russia

   and New York:

      o Magistrate Brill reports that the search warrant affidavit claimed that

         the search of “the apartment in Russia” was conducted after the

         defendant provided “fictitious information” regarding Juvenile-H’s

         adoption. Magistrate Brill accepted as fact that U.S. law enforcement

         knew this statement made by Dr. Kapordelis was not false and that he

         was legally adopting in Russia. Magistrate Brill made a technical

         error in that it was the “computer search” and not the “apartment

         search” which was referred to in the search warrant affidavit.

      o Magistrate Brill also erred by stating that the “search of the

         apartment” was described as “brief” in the search warrant affidavit.

         As mentioned above, the search warrant affidavit does not disclose the

         apartment search at all. Magistrate Brill accepted as true that the

         apartment search took over two hours and that no movie clip of

         Juvenile-D, sexually explicit materials or contraband were found in

         the search and that the only pills found were red and white Tylenol


                                     80
   capsules. Magistrate Brill does not address the Affiant’s deliberate

   concealment of the fruitless apartment search.

o Magistrate Brill concluded that (1) even though defendant’s computer

   was in New York, the search warrant affiant was unaware of this; (2)

   Affiant Brant did claim in the affidavit that defendant’s computer was

   searched in Russia just days before; accordingly, the issuing

   magistrate could have inferred that the laptop would not have been at

   the defendant’s home at the time of the search; (3) this issue was

   therefore, not material. This conclusion by Magistrate Brill is curious.

   After all, what little information could have supported the issuance of

   a search warrant at all focused on photographs depicting innocent

   conduct between the Defendant and individuals from Dom

   Miloserdia, the orphanage from which Juvenile-H was being adopted.

   And, as pointed out later in this brief, (1) these exonerative

   photographs were never listed in the “to be searched and seized”

   portion of the search warrant affidavit; and, (2) the actual conduct

   represented by these photographs was either deliberately concealed or

   perverted by the Affiant. Moreover, the affiant failed to reveal to the

   Magistrate who was being asked to issue the search warrant that that

   very computer was not in Gainesville, but was in New York. Not at



                               81
        some time in the past. But right then. As the agents were handing the

        search warrant affidavit to the Magistrate in Georgia, they knew that

        the computer was in the hands of the ICE agents in New York.

        Magistrate Brill’s off-hand observation that a Magistrate “could have

        inferred” that the computer was not in the location that was about to

        be searched is quite a stretch. After all, the agents were specifically

        asking to search that computer in Georgia!          Perhaps the issuing

        magistrate was clairvoyant. Perhaps the issuing magistrate could see

        through the deception. But, then again, perhaps the issuing magistrate

        should have been told. The defense contends that the failure to reveal

        this information in the search warrant affidavit was a significant

        Franks violation – that is, it was blatantly deceptive.



v.) HealthSouth employee interviews conducted on April 12, 2004:


     On July 5, 2005, the magistrate court held a hearing focusing on the issue

of whether there was a Franks v. Delaware violation – i.e., material

fabrications, misrepresentations and omissions – regarding the information

allegedly furnished by two employees of the surgery center where Dr.

Kapordelis worked.




                                     82
      ICE agents Cory Brant and Rodney Bergstrom interviewed Dr.

Kapordelis’ Gainesville Surgery Center colleagues on April 12, 2004 after

creating a “punch list” of items they wanted to establish in order to convince the

magistrate that a search of Dr. Kapordelis’ home and office would likely yield

fruit. In his testimony before Magistrate Brill, Agent Bergstrom made it clear

that the “checklist” included the need to demonstrate the presence of a

computer and a digital camera at Dr. Kapordelis’ residence, as well the need to

obtain corroborative statements that Dr. Kapordelis associated with young

children in a predatory fashion.

      The testimony of the two ICE agents established that: (1) they had no

information from the employees that suggested, even by mere speculation, that

Dr. Kapordelis had ever molested or mistreated any child at any time or at any

place; and, (2) they had no information that suggested, even by the most relaxed

measure of proof, that any child pornography or evidence of the charged

criminal conduct in Russia would be found in the Defendant’s office or home.

      Dissatisfied with the employees’ supportive stance concerning Dr.

Kapordelis, the federal agents exaggerated and twisted certain innocent

statements made by the two employees, while omitting all exculpatory

comments.    The agents also fabricated information in order to artificially




                                      83
     establish probable cause that Dr. Kapordelis might be engaged in criminal

     behavior and that a nexus might exist to his home and office.

           The issues discussed below are relevant to both the Franks Challenge

     and the Nexus Challenge.10

      Marie Hernandez had only known Dr. Kapordelis on a professional basis for

        five months and had absolutely no personal knowledge of any aspect of his

        social life. She had only been to Dr. Kapordelis’ home once, for a staff

        Christmas party in December, 2003.               According to Ms. Hernandez’s

        testimony, she relayed this critical information to the federal agents. It was

        never revealed in the search warrant affidavit that Ms. Hernandez had

        absolutely no basis for any statements attributed to her except as would be

        reflected by hearsay or gossip. The Affiant made no reference to Ms.

        Hernandez’s lack of foundation. Rather he recited the statements from Ms.

        Hernandez as if she were Dr. Kapordelis’ shadow or best friend. Magistrate

        Brill concluded that this misrepresentation was immaterial.

      The Affiant was determined to establish that Russian children were seen in

        Dr. Kapordelis’ home even though this was absolutely, positively not true.

        Both employees denied having seen or claimed to have seen any Russian

        children in the Defendant’s home; yet this statement, attributed to both

10
   The Nexus challenge is discussed in Section II but the raw information concerning these
interviews is provided in detail here alone rather than in two places.


                                               84
   employees, appeared in the search warrant affidavit like a beacon,

   deliberately placed there in order to establish an iron clad, albeit entirely

   false, nexus to the Defendant’s property.     The government has, finally,

   conceded that this was a simple “mistake” in the affidavit. Magistrate Brill

   concluded that the issue was an error which was immaterial.

 The Affiant was determined to mislead the magistrate into believing that Dr.

   Kapordelis’ home was filled with defenseless young children without their

   parents or guardians present.    The fact is that the only “boy” actually

   identified by the employees as specifically having visited Dr. Kapordelis

   was “Vasek”, a 17 or18 year old “boy” who visited Dr. Kapordelis “on and

   off, all the time.” Agent Brant’s and Agent Bergstrom’s handwritten notes

   confirm that no other “boy” or “child” or “kid” was specifically identified by

   the employees as having ever visited Dr. Kapordelis' home.         Testimony

   revealed that Vasek’s visit was acknowledged by Ms. Fankhauser, but was

   misrepresented in the search warrant affidavit as, “the two employees

   claimed that Dr. Kapordelis “routinely has children at his home.” It is by no

   accident that the only “boy” specifically identified as visiting Dr.

   Kapordelis, 18 year old Vasek Racanska (Dr. Eva Racanska’s brother), was

   not listed in the search warrant affidavit anywhere yet “unidentified young

   children or unspecified young ages” were mentioned over and over again.


                                     85
While Vasek may be a “boy,” he is not a minor, he is not a child and he

certainly does not qualify as either “children routinely visiting” or “minor

children visiting without their parents.”     According to ICE interview

statements and ICE interview notes, never once did the federal agents ask

the employees about the ages of any other visitors, foreign or domestic, to

Dr. Kapordelis’ home.    It is apparent that the affiant intended to recklessly

disregard the truth by converting adult boys into children; children into

young children; and young children into young children without guardians

or parents. Magistrate Brill concluded that the there was a sufficient basis

for the deduction that “children” visited Dr. Kapordelis’ home. Magistrate

Brill did not address the necessity for the Affiant to specify the age of “the

children” in order to have that information support the finding of probable

cause. Magistrate Brill also concluded that Brant’s information obtained

from the U.S. Customs database, that several minors from the Czech

Republic and South Africa had entered the United States using Dr.

Kapordelis’ address, was supportive of probable cause. The court was never

provided with (1) any such list; (2) the date on which the TEC II system was

accessed to generate such list; and (3) the “username” of the person who

accessed the TEC system. Most important, there was no reference made in

court as to (1) the ages of the visitors (2) whether they came with their



                                  86
  family (3) whether other adults were at Dr. Kapordelis’ home, etc. And, of

  course, if Agent Brant did have such information from the TEC II database,

  he mysteriously hid this from the search warrant magistrate, as well.

 The affiant was determined to place a computer, any computer, inside the

  Defendant’s home or office, because it was, in his mind, a necessary piece of

  evidence to link the unfounded allegation of child pornography, emanating

  out of Russia, to the property to be searched in America. In this effort, the

  Affiant claimed that both employees saw a desktop and laptop in Dr.

  Kapordelis’ home.     Ms. Fankhauser, however, testified that she had no

  recollection of having seen a computer anywhere in the house (Tr. 24) and

  she told the agents “the same thing” – that is, that she “[didn’t] remember if

  there was computer [at his house] or not at the Christmas party.” The other

  employee, Ms. Hernandez, testified that trying to remember a computer at

  his home is like trying to remember a “toaster.” She testified that she might

  have seen it in his bedroom but she knew nothing else about it and did not

  even know if it was a desktop or laptop. It was never determined whether

  the computer Ms. Hernandez might have seen in December, 2003 was the

  Defendant’s laptop, which was with him in New York at the time the search

  warrant was presented to the magistrate in Georgia for her signature. It was

  also never claimed or asserted that this computer, if it existed at all, had any


                                     87
connection to any criminal activity or the crimes alleged in Russia.

Magistrate Brill concluded that both nurses saw a computer and that Ms.

Fankhauser saw a desktop computer in December, 2003 during a Christmas

party.     Magistrate Brill made a factual error concluding that Ms.

Fankhauser’s testimony should be subordinated to the testimony of Agent

Brant and Agent Bergstrom. The agents went to the surgery center with a

check list and were determined to fill that list. When considering every

effort by the agents to subvert the truth, this issue pertaining to the desktop

computer    is   no   different.    Please refer    to   Agent    Bergstrom’s

“contemporaneous notes” wherein he writes about the “desktop” computer;

the agent writes, “Desktop seen in ___________.” The words “Defendant’s

home” do not exist because Ms. Fankhauser did not claim to have seen a

desktop in the Defendant’s home. While the desired response was perhaps

“expected” by the Agent, the “blank” leaves no doubt that Ms. Fankhauser

testimony should take priority. Please note – (1) the Affiant did not assert in

his search warrant affidavit, (2) testimony was not presented in the

magistrate court and (3) Magistrate Brill did not conclude in her Report and

Recommendation – that the computer (if it existed) was in Dr. Kapordelis’

home at the time of the search or that it had any relevance to the activity

alleged in Russia.



                                   88
 The Affiant portrayed Dr. Kapordelis’ involvement with Young Life as an

   “active membership” implying scores of molestation victims at risk at camps

   around the country. Dr. Kapordelis had not participated in Young Life since

   the year 2000. During that year, Dr. Kapordelis volunteered as a physician

   for one week at a camp designed for juniors and seniors in high school. The

   Affiant claimed that Dr. Kapordelis often volunteered at various camps in

   North Georgia. Dr. Kapordelis did not ever work for any camps in North

   Georgia and his only camp doctoring experience was with Young Life,

   several years earlier.    The truth was concealed because Agent Brant

   was determined to portray Dr. Kapordelis as a predator of young children; a

   pedophile, who sought out volunteer positions where defenseless young

   children gather.   Magistrate Brill concluded that the Affiant may have

   exaggerated defendant’s work with children by using the words “often” and

   “many” but that “the exaggeration” was not material. Magistrate Brill did

   not address the fact that the Young Life camp did not deal with prepubescent

   children or even young teenagers.

 The Affiant was determined to establish that there was a digital camera seen

   in the Defendant’s home, at some point in time, despite being aware that Dr.

   Kapordelis’ cameras were seized in New York by ICE agents prior to the

   submission of the search warrant application to the magistrate.      In the


                                       89
  testimony provided, both employees denied having claimed that they saw a

  digital camera in Dr. Kapordelis’ home during the Christmas party even

  though they did state that Dr. Kapordelis was taking pictures of his guests.

  Magistrate Brill concluded that there was a digital camera at Dr. Kapordelis’

  house during the Christmas party and there was a sufficient basis to

  conclude that it was a digital camera. Magistrate Brill did not address the

  fact that Dr. Kapordelis’ cameras had been fruitlessly searched in New York

  and were subsequently seized and in the custody of ICE agents.

 The Affiant was told by one employee that there were no “blue and white”

  pills at the Gainesville Surgery Center which would correspond to the

  alleged pills in Russia; this was not mentioned in the affidavit despite the

  fact that it was materially relevant to the allegations made in Russia.

  Magistrate Brill did not address this issue in her Report and

  Recommendation. The defense contends that this was not mentioned in the

  search warrant affidavit because it detracted from the probable cause

  determination.

 The Affiant was told by the nurses that there never was any evidence of

  pornography on Dr. Kapordelis’ laptop computer even though several people

  used this computer at the workplace; this was also concealed in the affidavit.

  Magistrate Brill concluded that this issue was immaterial because the


                                    90
   magistrate who issued the search warrant could have deduced this by the

   absence of any allegations attributed to the employees in the search warrant

   affidavit.

 Dr. Kapordelis owned a large boat on Lake Lanier and would frequently take

   physicians and some of the surgery center staff for jaunts after work. Agent

   Brant claimed that both employees said that Dr. Kapordelis was seen with

   children on his boat without parents or guardians present. There were no

   such statements from the two employees and they denied ever having seen

   any children on Dr. Kapordelis’ boat, much less children without their

   parents. In fact, Ms. Hernandez told the federal agents that she had never

   seen or been on Dr. Kapordelis’ boat in her entire life. Magistrate Brill

   concluded that there was no basis for Agent Brant’s claim that Dr.

   Kapordelis “often” had minor children on his boat without their parents or

   guardians present. She also concluded that the issue was immaterial because

   the focus of the search was on the house, not the boat. The defense contends

   that with this kind of “leeway for deceptive writing” the Affiant would have

   been able to claim that Dr. Kapordelis routinely hosted pajama parties for

   third graders at his mountain cabin in Helen. Would the court conclude that

   this misrepresentation was not material because the agents were not asking

   to search the Defendant’s cabin? Where does the fiction end when you are


                                    91
      dealing with a sworn document presented to a United States magistrate

      judge?

    The Affiant was told by the two nurses that there was never any hint of any

      impropriety by Dr. Kapordelis involving adults or children, at work or at his

      home; this was not mentioned in the affidavit even though the agents were

      so informed. Magistrate Brill concluded that the magistrate who issued the

      search warrant could have concluded this by the absence of allegations

      attributed to the employees in the search warrant affidavit.



E. Reasons why the Information Known to Russian Law Enforcement Agents
   and Their Colleagues Must be Attributed to the ICE Agent who Authored
   the Search Warrant Affidavit.

      As explained above, in Franks v. Delaware, the Supreme Court held that a

search warrant would not be valid if it was secured by means of a search warrant

affidavit that falsely related the facts to the issuing the magistrate. This hardly

seems surprising. After all, if a search warrant is required to search a person’s

property, and a law enforcement officer could obtain a warrant by means of

deceiving a magistrate into believing that there is probable cause, there really

would be no point in requiring a neutral and detached magistrate to evaluate the

strength of the information. Thus, it is settled law that a person whose property has

been searched, has the ability to challenge the validity of the search on the basis


                                         92
that the warrant was obtained by misleading the magistrate into believing that there

was probable cause to believe that evidence of a crime, or contraband could be

found at the location to be searched.

      Of course, if the affiant is not an “eye witness” to the events that comprise

the probable cause showing, he must relate what he was told by others. If he

accurately records what he is told by someone else, the question often arises: What

happens if that “someone else” is knowingly lying to the affiant?

      While the material recited above demonstrates that there were scores of facts

known to the affiant (Agent Corey Brant) that he omitted; and that he also made

numerous material misrepresentations in the affidavit, there are several other facts

known by others that were related to Agent Brant, that he presumably did not know

to be false when he prepared the first search warrant applications. Additionally,

there were material facts known to others that were not recited to Agent Brant, and

therefore were omitted from the affidavit, and presumably these facts were not

actually known personally by Agent Brant.

      Courts wrestling with this type of information have generally reached the

following conclusion: Any false information that is provided to the affiant by a

“governmental agent” is attributed to the affiant, as if he knowingly, himself, made

the false statement. Moreover, if a governmental agent is aware of facts that are

material to the probable cause calculus (i.e., that detract from the existence of



                                        93
probable cause, or the reliability of the information in the affidavit), but fails to

provide that information to the affiant, that information must also be considered to

have been known by the affiant and must be considered in the Franks evaluation.

      Who is a government agent? The easy cases involve a case agent’s partner

who intentionally fails to provide information (or who provides false information)

to the case agent who prepares the affidavit. United States v. Kennedy, 131 F.3d

1371 (10th Cir. 1997); United States v. Wapnik, 60 F.3d 948 (2d Cir. 1995); United

States v. DeLeon, 979 F.2d 761 (9th Cir. 1992); United States v. Pritchard, 745

F.2d 1112 (7th Cir. 1984); United States v. Hollis, 254 F.3d 671 (8th Cir. 2001)

That, in fact, is part of what happened in this case.

      More difficult are cases in which another law enforcement agency is

involved in the investigation (in addition to the affiant’s own agency). In those

cases, too, the courts have generally held that the information known to the other

law enforcement agency’s officer are attributed to the affiant. Thus, if the DEA is

working with the Atlanta police department and an Atlanta police officer

knowingly lies to the DEA affiant, the search warrant is subject to attack on these

grounds. United States v. Kennedy, supra; United States v. Calisto, 838 F.2d 711,

714 (3rd Cir. 1988).

      On the other side of the coin are cases in which an errant informant lies to

the affiant about certain facts. The informant tells the affiant that he personally



                                          94
went into the target’s house, smoked some crack with the target and that the target

then put his stash back in the desk drawer. If the informant is lying – even if the

target can prove that he was in Anchorage when this party occurred – the warrant

is not subject to attack if the affiant (1) had no reason to believe that the informant

was lying; (2) accurately recorded what the informant told him; and (3) provided a

fair account of the informant’s supposed basis of knowledge and reliability.11

United States v. Jones, 208 F.3d 603 (7th Cir. 2000); United States v. Roth, 201

F.3d 888 (7th Cir. 2000).          The Eleventh Circuit’s decision in United States v.

Smith, 918 F.2d 1501 (11th Cir. 1990), explained this rule in simple terms:

       As to the motion for a Franks hearing . . . the [district] court granted a
       hearing with respect to examination of the affiant agent. It denied a
       hearing to examine the confidential informant as to her reliability,
       relying on the Supreme Court's limiting language in Franks itself:
       "The deliberate falsity or reckless disregard whose impeachment is
       permitted today is only that of the affiant, not of any non-
       governmental informant." 438 U.S. at 171. The court ruled that [the
       defendant] had not supported by affidavit his conclusory allegation
       that [the informant] was an agent of the government, his affidavit
       having addressed the accuracy of the statements and not her role. . . .
        [The informant] was not an agent or instrumentality of the
       government within the meaning of Franks. [Defendant’s] contention

11
    This scenario provides the setting for a substantial body of the Franks jurisprudence: What
did the affiant know about the informant’s lack of veracity that he failed to reveal to the
magistrate? What follow-up investigation did the affiant fail to undertake to verify what he was
told by the informant? Do the facts that the informant has a vast criminal record, or a grudge
against the target, or a drug habit, or a pending criminal case matter to the neutral and detached
magistrate? These questions address the affiant’s actual knowledge, however, not the question
that we are addressing in this part of the brief: Who qualifies as a “mere” informant whose
knowledge is not attributed to the affiant versus a government agent, whose knowledge is
attributed to the affiant?



                                                95
      would open up to Franks hearings the whole world of the
      compensated, non-official civilian informant. Franks opened
      government agents to examination on proper showing but shielded
      informants. The decision nowhere implies that compensated civilian
      informants are to be open to examination by titling them government
      agents, and we decline to so extend it.

      The question in this case, has not been decided by any court, as far as

counsel has been able to determine.          Nor does Magistrate Brill reach any

conclusion about the question posed in this case. That is, what is the rule of

“attribution” when the affiant receives information from a foreign law enforcement

agency with whom the affiant (and his agency) has engaged in a joint

investigation? The government has cited no cases in its brief that even discuss this

question, even in dicta. And Magistrate Brill basically “punted” on this question,

assuming, for the most part, that most information known to the Russian police

could be attributed to the affiant.

      Mysteriously, however, without any legal analysis, with regard to certain

information known to Russian police officers, Magistrate Brill simply refused to

attribute the knowledge to the search warrant affiant. Thus, for example, with

regard to certain facts relating to Lapov’s illegal behavior – behavior known to

Officer Koroliova – Magistrate Brill summarily refused to attribute that

information to ICE Agent Brant.

      The defense contends that the answer in this case is that all the information

known to the foreign law enforcement officers is attributed to the affiant. The

                                        96
defense does not suggest that in all cases in which information is supplied to an

American agent by a foreign government’s law enforcement personnel, that the

knowledge or conduct of the foreign agent is attributed to the affiant.          The

circumstances in which this may occur are simply too varied and unpredictable to

suggest a single answer to all situations.

      In this case, however – (1) the nature of the joint investigation; (2) the

actual relationship between the American agents in Russia and the Russian police

with whom they were working; and (3) the collusive efforts to recklessly

misrepresent the truth – dictates that the information known to the Russian police

officers should be attributed to the Affiant.

      One more preliminary point: the answer to this question is but one facet of

the Franks issue raised by the defense. Even if this court were to decide that

certain information known to the Russian police is not attributable to the affiant,

the Motion to Suppress does not rely exclusively, or even primarily, on such

attributed knowledge. Rather, there was a vast amount of information actually

known by the Affiant and/or the other American agents that clearly and undeniably

must be considered in the Franks assessment.

      Finally, as argued below, the defendant’s principal point, at this juncture, is

that an evidentiary hearing is necessary to properly understand what the nature of

the relationship is (and was) between the Russian police and the American agents.



                                             97
Otherwise the legal conclusion will be reached in a vacuum. Magistrate Brill’s

refusal to conduct an evidentiary hearing on this issue, despite the showing made

by the defense, was itself an error. As noted above, the defendant does not claim

that in all cases, the information known to a foreign law enforcement agent is

attributed to an American affiant. But in some cases – including this case – the

nature of the relationship between the American affiant (and his agency) and the

Russian police was such that attribution is required.



1. A Hearing is Required to Fully Explore What Information Was, In Fact,
   Known to the Affiant or to Other American Agents who Supplied
   Information to the Affiant and to Determine the Relationship Between the
   Russian Police and the American Agents.


      As noted above, one of the oft-litigated issues in Franks cases is the extent

of the showing that is required before the defendant is even entitled to a hearing on

his Franks claim. Invariably, however, the hearings in Franks v. Delaware cases

deal with what information was false – the proverbial “what did the affiant know

and when did he know it?” type of inquiry. In order to secure a hearing, the

defendant must make a preliminary showing that the affiant did present false

information (or omitted exculpatory or substantially impeaching information). In

fact, affidavits, or some other showing must be made preliminarily before a

hearing is even required.



                                         98
        As it pertains to the “attribution issue,” however, the defendant is requesting

a hearing on a different matter, (in addition to the traditional hearing on the

question of the veracity of the information): the relationship of the Russian and

American police; the circumstances involving the exchange of information; and,

the conduct during the investigation with regards to the objectivity, reliability and

credibility portrayed in the search warrant affidavit.               This factual inquiry is

essential in order to decide whether the Russian officers’ knowledge should be

attributed to the American police. See State v. Thetford, 109 Wash.2d 392, 745

P.2d 496 (1987) (hearing necessary to determine relationship between informant

and affiant in order to properly evaluate whether informant’s knowledge should be

attributed to affiant).12

        What is known, at this time, about the personnel and their relationships is

this:

      ICE Agent Corey Brant. He is the affiant. He did some investigation in the

        United States (including interviews that are the subject of the July 5

        hearing). He also reviewed all the ICE reports that were prepared by other

        American agents in Russia and prepared the affidavits based on information

12
   Of course, at a hearing, inevitably, the court will also be able to better focus on what was
actually known to the American agents in Russia at the time the search warrant affidavits were
prepared. That is, in addition to what they documented in the ICE reports that later were recited
(accurately, and otherwise) in the warrant affidavit, the testimony of Lacy, Kishkinsky,
Koroliova and Lapov will establish with absolute clarity exactly what it is that they knew, when
they knew it and under what circumstances they obtained the information.


                                               99
         contained in those reports (or, as the defendant contends, failed to recite

         information from those reports, or misrepresented what was contained in the

         reports).

      Attaché Edgar Lacy.           He is the principal American investigator in St.

         Petersburg Russia. He worked with Russian police during the course of the

         investigation, beginning in March of 2004. He participated in numerous

         interviews of children (including the supposed victims) and other people.

         He prepared written reports for some interviews and no reports for other

         interviews. He was present with St. Petersburg police when Kapordelis’

         apartment in Russia was searched (remaining downstairs, while the police

         went into the apartment).

      Sergei Kishkinsky. He is a Russian employee of the American embassy in

         St. Petersburg. He was formerly employed in the Russian government in a

         Ministry of foreign affairs.13 He acted as a liaison and interpreter/translator

         between the Russian police and Edgar Lacy. The government concedes that

         he is, for purposes of the Franks v. Delaware motion, an American agent.

      Officer Koroliova.         She is a St. Petersburg, Russia police officer who

         conducted numerous interviews both before the involvement of the

         Americans (i.e., Lacy and Kishkinsky) and after their involvement. She
13
     Details are not known to the defense about his background.



                                               100
   prepared written reports and, to an extent not entirely known to the defense,

   provided written reports and oral information to the Americans prior to the

   time that the search warrant affidavits were prepared.

 Andrei Lapov. He is a Russian citizen who participated in virtually every

   interview of a child with the Americans. He is portrayed in the ICE reports

   as some kind of child advocate whose participation and presence during the

   interviews was demanded by Russian law because the juveniles were

   “orphans.” It is now known that the juveniles were not orphans and that Mr.

   Lapov (1) has a criminal record of two felony counts of theft during which

   he used a child as a co-conspirator; (2) threatened children in this case to

   provide false information about Kapordelis (Juveniles A, C, H, and M, for

   example); (3) sexually molested at least one of the children (Juvenile-C) who

   has accused Kapordelis in this case over the course of several years, before

   enlisting this juvenile to make a false allegation against Kapordelis; (4)

   sexually exploited another child (Juvenile-A) and attributed to that juvenile a

   false allegation of molestation against Dr. Kapordelis. There is also reliable

   information that has been provided to the defense that Lapov’s background

   and conduct was known by Koroliova at the time the information was being

   passed on to Kishkinsky and the Americans.




                                     101
2. The Facts that will be Proven at a Hearing will Demonstrate a Close
   Working Relationship Between the Russian and American Law
   Enforcement Agencies.

     This much is known, for certain:

      At every possible opportunity, the American government has heralded to

        anybody interested, that this was a “joint investigation.” This phrase is

        contained in virtually every ICE report (contained in the exhibits attached

        to the original Motion to Suppress). It is also publicly displayed in the

        ICE website. The United States Attorney for the Northern District of

        Georgia bragged about the cooperative effort of the Russian police and

        the American agents in a press release and in a televised press

        conference.

      There was constant contact, both telephonically, and in writing, between

        the Americans in St. Petersburg (particularly Kishkinsky and Lacy) and

        their counterparts in the St. Petersburg Police Department (primarily

        Koroliova).

      Edgar Lacy was officially involved with the St. Petersburg Police before,

        during and after the search of Dr. Kapordelis’ apartment in St.

        Petersburg on April 8, 2004.




                                        102
       Lacy and Kishkinsky participated in numerous interviews of the children,

         prior to the time the search warrant affidavit was prepared and, in fact,

         these interviews were conducted jointly with Koroliova and Lapov in

         what was clearly a Russian controlled, Russian restricted and Russian

         monitored environment. The information from these interviews formed

         the entire basis for the criminal allegations against Dr. Kapordelis which

         were presented in the search warrant affidavit prepared by Agent Brant.

         There were no other criminal allegations made against Dr. Kapordelis by

         any persons except for these three juveniles in Russia.



3. The Knowledge of the Russian Police Should be Attributed to the Affiant
   even if the Affiant did not Actually Know (or Have Reason to Know) the
   Information.


      Once the facts are known, the defense contends that the decision whether to

hold the Affiant responsible for information known to the Russian police – but not

known to the American agents (and, not “constructively known” because the

American agents “should have known”), will be obvious.

      First, because this was a joint investigation, there is simply no reason to

divorce the activities of one member of this joint operation from the activities of

the other. If the American government is going to engage in joint operations with

the Russian government and use the information obtained in the course of an

                                        103
investigation on American soil, the Americans cannot simply treat the information

furnished by the Russians as immune from challenge.

      Second, the analogy to a simple informant (paid or not) – an analogy that the

government presses – is flawed.        This case involves a joint and ongoing

investigation between the Americans and a governmental institution (albeit not

American). We are not dealing with a “rat” or a “snitch” whose questionable

integrity and veracity is assumed by every magistrate who has ever signed a search

warrant; we are dealing with a government informant who was represented to the

search warrant magistrates as an authority above reproach.

      Third, the underlying purpose of the exclusionary rule (and, more

specifically Franks) is to deter misconduct – i.e., deception – on the part of law

enforcement and governmental entities.        Informants are not deterred by the

exclusion of evidence.     Institutions are deterred.   And that includes foreign

governments which engage in joint investigations with American agents.

      Fourth, to the extent, as argued by the government, their “hands were tied”

and they had no authority to perform any additional investigation beyond that

directed, allowed or spoon fed by the Russians, this was a critical piece of

information that was never revealed to the issuing Magistrates.         That is, the

government contends that they could boast to the Magistrate that this was an

objective and credible joint investigation that revealed criminal conduct on the part



                                        104
of the defendant, while at the same time, withhold from the magistrate the true

state of affairs, which was that the Americans were simply dupes, or pawns who

repeated what they were told in Russia and had no authority or capacity to verify or

evaluate the incredible information being furnished.

      Fifth, there is nothing unusual about analyzing the conduct of the foreign

agents when considering Fourth Amendment issues. Usually, the evidence being

challenged was gathered in the foreign country. Even in such cases, the courts

have held that if the Americans were involved in the effort to obtain the evidence,

the Fourth Amendment will apply.         See generally United States v. Angulo-

Hurtado, 165 F.Supp.2d 1363 (N.D.Ga. 2001); United States v. Maturo, 982 F.2d

57 (2d Cir. 1992); United States v. Peterson, 812 F.2d486 (9th Cir. 1987) (then-

Judge Kennedy finding that foreign search was governed by fourth amendment,

relying, in part on government’s characterization of the investigation as a “joint

investigation”); United States v. Hensel, 699 F.2d 18 (1st Cir. 1983) (then—Judge

Breyer finding, for sake of argument, that fourth amendment applied to Canadian

search); United States v. Behety, 32 F.3d 503 (11th Cir. 1994); United States v.

Rosenthal, 793 F.2d 1214 (11th Cir. 1986); United States v. Morrow, 537 F.2d 120

(5th Cir. 1976); United States v. Karake, 281 F.Supp.2d 302 (D.D.C. 2003); United

States v. Cotroni, 527 F.2d 708 (2d Cir. 1975) Among the standards applied when

attributing the foreign government’s conduct to the Americans is whether the



                                        105
behavior of the foreign government is “shocking to the conscience.” Id. Here, as

will be shown at the requested evidentiary hearing, the evidence will demonstrate

the following, just for starters:

      The Russian police in St. Petersburg knowingly utilized a serial child

molester (Andrei Lapov, who was misrepresented as a “child advocate”) to

participate in every aspect of the investigation of this case, including “filling in” as

an “operational source of information” if certain pieces of corroborative evidence

were missing. Mr. Lapov used one of his own molestation victims to become an

accuser. He then threatened other children, including Juvenile-M who admitted

that he wrote a false statement accusing Kapordelis of a violent molestation, only

because of Mr. Lapov’s threats; including Juvenile-H who refused to submit to the

coercion and managed to tell Attaché Lacy that Dr. Kapordelis was innocent;

including Juvenile-A who never even presented to Officer Koroliova the March 6,

2004 statement of molestation relayed by the Affiant in the search warrant

affidavit. Mr. Lapov was later utilized by American prosecutors to chauffeur

Juvenile-M to their first official interview (after being told by undersigned counsel

that Mr. Lapov was implicated by Juvenile-M as the person who threatened him

and forced him to lie about Kapordelis).

      Even apart from the shocking behavior of Mr. Lapov – and the knowing use

of him as a participant in virtually every interview by the American police, there



                                           106
are the scores of other instances of unconscionable behavior by the Russian police,

including simply failing to alert the Americans (or so the Americans now claim)

that the children denied that there was any misconduct on the part of Kapordelis

when they were initially interviewed. Only after the “child advocate” got his

hands on the children did they suddenly become accusers.

      And the person who protects the Mr. Lapov from criminal prosecution is the

person who was the principal Russian investigator, Officer Koroliova. It is her

office that expressly told Russian prosecutors that Lapov was “immune” from

investigation for his child molestation because of the service he provides to the

Russian police on other matters.

      If such conduct occurred in this country, “heads would roll.” Yet, according

to the government, the Americans can simply use all of this information – false

information – that was derived through lies, deception, beatings, and threats, and

conduct a search in this country and simply pass it off as information learned from

our joint investigators, the Russian police department without our knowledge. In

short, the government seeks to resurrect the “silver platter” doctrine, regardless of

the method by which the information is obtained by the foreign government and

regardless of the extent to which the Americans were involved in the investigation.

See United States v. Fernandez-Caro, 677 F.Supp. 893 (S.D.Tex. 1987).




                                        107
       In the words of the United States Attorney for the Northern District of

Georgia, the arrest of Kapordelis was the result of “the now virtually routine

cooperation between international police organizations and law enforcement

officials.”

       One certainly hopes not.

                                    III
                    Summary and Memorandum of Law on the
                        Franks v. Delaware Argument


                  The Franks v. Delaware Standard of Candor

       The duty imposed on an affiant who is submitting a search warrant

application to a federal Magistrate (a duty which in many cases is shared by the

AUSA if one is preparing the affidavit with the agent), necessitates that when an

informant tells the agent two versions of events, the affiant may not simply ignore

one, and present the Magistrate with the other. The Agent may not simply change

a date when a victim claims that he was victimized when the Agent realizes that

the perpetrator was ten thousand miles away on that date. The Agent may not

camouflage an informant to deceive the Magistrate into believing that he is a

“social worker” when he is, in fact, a child molester providing information from

children that he had actually violated. The Agent may not create the appearance of

victims on a boat at the defendant’s house, when there were no victims, or anybody



                                       108
claiming that there were victims.       The Agent may not erase all exculpatory

information from the investigation in an effort to convince the Magistrate that there

is a tidy and airtight reason for believing that the defendant is a criminal and that

evidence of the crime can be found in the place they want to search. The Agent

may not conceal the fact that the principal item to be searched (the computer that

was with Kapordelis) was known to have already been searched twice (with no

evidence of a crime being found) and was presently over 1,000 miles away from

the place that is targeted by the search warrant.

      Yet, that is precisely what the Government urges is acceptable conduct for

the Affiant in this case (and, again, the AUSA who may have assisted in the

presentation of the application to the Magistrate, if she were aware of the prior

statements of the witnesses).

      With respect to search warrant applications, the duty to be candid is even

more important than in the context of an adversary proceeding: the application for

a search warrant is, by necessity, an ex parte process. The affiant who presents a

search warrant affidavit swears that the information he is providing is the material

truth, not half-truths or lies. There is no opposing force to challenge the affiant,

apart from the threat of consequences should he wander from the duty outlined in

the oath of affirmation.




                                         109
      If this court were to approve of this conduct with the simple observation that

exculpatory information need not be included in a search warrant application; or

with the observation that inconsistent statements by an informant or claimant need

not be revealed, even if they go to the core of the allegation that supports the

probable cause (as opposed to some immaterial collateral matter), the court will, in

essence, be marginalizing the Fourth Amendment’s search warrant requirement.

There simply won’t be a job left for the Magistrates if the search warrant affiants

can blatantly and recklessly disregard the truth to the extent that Agent Brant did.

      The law does not authorize this misconduct and deceptive behavior on the

part of the agents seeking a search warrant. Though there are few cases in this

Circuit (thankfully) addressing the type of omissions and misrepresentations that

exist in this affidavit, the law clearly denounces an intentional or reckless effort to

deceive the Magistrate.

      In this case, the defense has pointed out over fifty material omissions and

misrepresentations in the search warrant application; the list would be much larger

if the defense had access to the additional concealed facts about the Russian and

American investigation.     These are not picayune “typographical” errors.         The

extent of the misrepresentations and omissions could not have been accidental or

inadvertent. Not this many.




                                         110
      The existence of contradictions, from the “informants” (i.e., juveniles) or

even from other witnesses, is not a matter that is automatically immune from a

Franks challenge as Magistrate Brill suggests. In Hale v. Fish, 890 F.2d 390 (5th

Cir. 1990), the Fifth Circuit held that the affiant’s failure to alert the magistrate to

the existence of witnesses who made statements that contradicted the statements

that were contained in the search warrant application tainted the warrant (in that

civil rights case, the question was whether the affiant was subject to civil liability,

but the Franks standard was employed by the Fifth Circuit).            Consider, also,

United States v. DeLeon, 979 F.2d 761 (9th Cir. 1992). The affiant claimed that

three people who went to the defendant’s house smelled marijuana at the location.

Actually, one of the witnesses denied smelling marijuana at the location. The

affiant failed to note that one of the three witnesses did not smell marijuana. The

Ninth Circuit held that this misrepresentation was sufficient to taint the entire

warrant. Moreover, the fact that the affiant was simply the messenger (i.e., another

agent provided all the information – true and false – to the affiant) was irrelevant in

assessing whether there was a viable Franks violation.                    Even subtle

misrepresentations about what an informant actually told the affiant, or his

colleague, can amount to a Franks violation. The case of United States v. Namer,

680 F.2d 1088 (5th Cir. 1982) (former Fifth Circuit), illustrates the point: the

defendant was a target of a fraud investigation, but the precise nature of the fraud



                                          111
was not entirely clear. The police asked a state Commissioner of Securities about

the “product” being sold and the Commissioner gave a “qualified opinion” that the

product was a security and, because it was not registered, it was illegal. A federal

search warrant was issued, with the affiant stating that the Commissioner

“classified the offerings as securities.” Based on this misrepresentation, the Fifth

Circuit held that the warrant was procured through misrepresentations and the

Franks violation resulted in suppression of all evidence seized from the

defendant’s office. The Fifth Circuit specifically chastised the government for

“subtly” manipulating the facts. Id. at 1094. There is nothing subtle regarding the

misrepresentations deliberately provided in the search warrant affidavit used to

search Dr. Kapordelis’ property. The intent was as subtle as a heart attack. See

also United States v. Alvarez, 127 F.3d 372 (5th Cir. 1997) (officer’s

misrepresentation about extent to which girl was exposed in picture was material

and reckless, thus requiring that all evidence seized pursuant to search warrant be

suppressed); United States v. Hammond, 351 F.3d 765 (6th Cir. 2003) (various

misrepresentations about substance of what informant told affiant resulted in

suppression of evidence seized pursuant to warrant); United States v. Chesher, 678

F.2d 1353 (9th Cir. 1982) (remand for hearing was required in light of showing by

defendant of misrepresentations which would diminish probable cause basis for

warrant); United States v. Stanert, 762 F.2d 775 (9th Cir. 1985) (misrepresentations



                                        112
in the warrant were sufficient to trigger necessity of evidentiary hearing); United

States v. Westover, 812 F.Supp. 38 (D. Vt. 1993) (hearing required in light of

showing of inaccuracies in the affidavit); United States v. Davis, 714 F.2d 896 (9th

Cir. 1983) (false statement about source of information was sufficient to sustain

defendant’s Franks challenge; evidence suppressed, despite the fact that, had the

officer been honest, there might have been probable cause).

      The fact that the Defendant cannot, at this time, establish that juvenile “D”

was subject to the same abuse and coercion as the other juveniles does not mean

that the court should view his statements as alone sufficient to establish probable

cause; especially in light of the fact that D’s allegations were impossible no matter

who was involved in producing them and his credibility was less than zero given

the refutation of his allegations during the search of Dr. Kapordelis’ property. The

credibility of all the information in the affidavit is cast in doubt by the

misrepresentations and coerced statements that infect the balance of the affidavit.

See United States v. Pagan, 286 F.Supp.2d 231 (D.P.R. 2003) (agent’s

misrepresentation about certain drug deals eliminated his credibility with regard to

other deals, thus tainting the entire affidavit).

      The misleading statements attributed to Ms. Fankhauser and Ms. Hernandez,

moreover, are eerily similar to the facts that led to a successful Franks v. Delaware

challenge in United States v. Bennett, 905 F.2d 931 (6th Cir. 1990). There, the



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affiant swore that his informant told him that he saw marijuana and guns stored in

the defendant’s house, thus prompting the Magistrate to issue a warrant for the

property. Actually, however, the affiant later acknowledged that his informant did

not claim to have seen drugs “stored” at the house; he only stated that he

personally bought drugs from the defendant at the house. The Sixth Circuit held

that this distortion of the information was sufficient to invalidate the warrant on

Franks grounds. See also United States v. Rios, 611 F.2d 1335 (10th Cir. 1979)

(misrepresentation in warrant affidavit relating to “nexus” of crime to location

sought to be searched, if proven, could taint warrant; remand for evidentiary

hearing).

      The information learned by the New York ICE agents is also part and parcel

of the Franks claim. Their knowledge of the controversy between Dr. Kapordelis

and the hotel; as well as their knowledge that they had the computer and camera

equipment in their possession and they had seen no pornography, should have been

revealed to the search warrant magistrates and even if the warrant had already

been signed, the agents had a duty to alert the magistrate to this new information.

United States v. Bowling, 900 F.2d 926 (6h Cir. 1990). See also United States v.

Marin-Buitrago, 734 F.2d 889 (2d Cir. 1984).

      Misrepresenting the nature of the informant has also led to Franks relief.

The government in this case knew, in fact, that their “confidential informant” was



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actually the notorious Andrei Lapov, who was doing triple duty as the confidential

informant, the child advocate, and the person who prepared the juveniles for their

interviews. Hiding this from the Magistrate was improper. See United States v.

Baxter, 889 F.2d 731 (6th Cir. 1989) (misrepresenting tipster as informant

amounted to Franks violation necessitating suppression of all evidence); United

State v. Jacobs, 986 F.2d 1231 (8th Cir. 1993) (misrepresentation in affidavit about

the strength of drug dog’s alert was egregious enough to necessitate granting the

suppression motion); United States v. McCain, 271 F.Supp.2d 1187 (N.D. Cal.

2003) (misrepresentation about status of confidential informant, which was

actually a wiretap, resulted in suppression of evidence).

      Moreover, failing to reveal to the Magistrate the criminal background of the

informant may, in certain circumstances suffice to taint an entire warrant and

suppress all evidence seized pursuant to the warrant. United States v. Hall, 113

F.3d 157 (9th Cir. 1997).

      Though Magistrate Brill accurately recited the “hornbook law” on various

subsidiary Franks v. Delaware principles, the defense believes that she missed the

proverbial forest while focusing on a few trees. In essence, what Magistrate Brill

did was to surgically remove all the tainted information and then reluctantly

transplanted into the text the material omissions that were proven in the

defendant’s showing and then stepped back to see if the new body was viable. In a



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limited sense, and perhaps in a typical case involving one or two false statements,

this is the appropriate protocol. But when the false information pervades the

affidavit and when the omissions are so substantial, the new and improved affidavit

simply bears no resemblance to the affidavit that was actually signed by the ICE

Agent and considered by the magistrate.

      Moreover, when it comes to considering the credibility of the supposed

victims, Magistrate Brill decided that the fact that they made numerous

inconsistent statements – including statements that completely exonerated

Kapordelis – was “par for the course” and need not have been revealed in the

search warrant affidavit. And the fact that they claimed to have been beaten and

threatened to make the statements was essentially irrelevant. And the fact that

their “sponsor” was a child molester, posing as a child advocate was

inconsequential. And the fact that one of the juveniles claimed to have been

molested on a date (and he was sure of this!) during which Kapordelis was

undeniably 6,000 miles away was immaterial. Perhaps taken in isolation, one or

two of these facts would merely detract from the probable cause arithmetic. But

when it all adds up, there is simply no way that a magistrate contemplating the

issuance of a search warrant would even consider such demonstrably false

information sufficient to establish probable cause.




                                         116
      As one court eloquently observed in the context of a Franks analysis, if the

toast is burned in the toaster, you can either scrape the burned part off and eat

what’s left, or, if too much of the toast is burned, you simply need to throw it out.

      The affidavit submitted by Agent Brant in this case was thoroughly

scorched.

      Thus, when Magistrate Brill cites a case or two that stands for the

proposition that “all exculpatory information need not be included in a search

warrant affidavit” this is a correct statement of law. But that doesn’t mean that “no

exculpatory information should be included” and it doesn’t mean that “material

exculpatory information should not be included” and it certainly doesn’t mean,

“sanitize all the information so that only incriminating information is included.”

The issue is not complicated. It simply involves a duty of candor. No search

warrant affidavit can include every fact known to the police. A search warrant

affidavit is not supposed to be a transcript of a trial, or a lengthy history of a

criminal investigation. If a confidential informant supplies information to the

police, it is sufficient if the police identify the person as a confidential informant

with a criminal record, and, perhaps, a case that is pending. Every facet of the

informant’s life need not be reported.         But the affiant cannot disguise the

confidential informant and call him a concerned citizen. The affiant cannot call

him a fellow police officer.



                                         117
      Perhaps one or two inconsistent statements can be assumed. But fervent

denials on the part of each juvenile that they were ever victimized is a fact that is

not immaterial or irrelevant. Magistrate Brill’s conclusion in this regard is simply

erroneous. The affiant in this case did have a duty to disclose this information.

And had it been disclosed, no Magistrate in this district would have issued a search

warrant for the defendant’s house or office in Gainesville, Georgia.

      A review of the conduct of the Russian police leads ineluctably to the

conclusion that the Russian law enforcement system lived up to its international

reputation (corrupt, dangerous and shocking to the conscience) and an American

“joint operation” that not just ignored and concealed the problems with the Russian

investigation tactics; it exploited the tactics in flagrant violation of the defendant’s

rights under the Fourth Amendment, as well as the Due Process Clause of the Fifth

Amendment. To be blunt, it is as if American mandates for an objective and

truthful investigation are somehow irrelevant when Russian claims are being

brought to U.S. courts, and a “do as they do” mandate takes priority.

      The defense asked the magistrate court on numerous occasions to conduct a

hearing according to the clear mandate of Franks v. Delaware. The showing that

has been made to the court demonstrates beyond any doubt that there were scores

of false statements intentionally made by the Affiant in the search warrant

application. The defense has also made an abundant showing that the affidavit was



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not just a document that was peppered with falsehoods here and there but laced

throughout.    Inconsistencies in the statements made by the juveniles were

intentionally hidden by the Affiant: if a juvenile denied that any misconduct

occurred, that statement was either omitted entirely, or was simply changed to say

just the opposite. Statements made by the juveniles that were categorically false or

impossible – and known by the Affiant to be false or impossible – were

intentionally changed, or simply hidden from the magistrate. Even information

learned in the United States, from witnesses who were interviewed by ICE agents,

was intentionally fabricated, disguised, changed, exaggerated, or, when it suited

the government’s purpose, simply “deep-sixed” in order to guarantee that probable

cause would be as clear as one-two-three.

       The criminal behavior of the Russian police and their “operational agent” –

as revealed by the juveniles themselves in statements provided to the court –

exceeds the imagination. The beating of juvenile witnesses during questioning; the

coercing of witnesses to lie and falsely implicate Dr. Kapordelis, with the threat of

more beatings or prison if they did not comply; the eagerness of Russian and

American agents to use the services of a convicted felon as a “child advocate”

during the course of the investigation while, all along, this “advocate” was only

present to guarantee that the juveniles claimed they were molested when they were

not.



                                        119
      For the most part, the defense has relied principally on the Fourth

Amendment and the doctrine of Franks v. Delaware in support of the motion to

suppress. Even apart from the Franks v. Delaware claim, the absence of probable

cause to suggest that there was any evidence of wrongdoing or contraband at the

house renders the warrant defective.       It was specifically this deficiency in

establishing a nexus that compelled the Affiant to fabricate one. The Defendant

continues to maintain that he has made a sufficient showing to trigger a hearing

and that the undisputed facts demonstrate that the search warrant that was obtained

in this case was obtained fraudulently and through the exploitation of dishonest

affidavits submitted by the ICE agents.       Stripped of the false information and

adding in the truthful information, there was no probable cause to search the

defendant’s property.

      If, however, the court were to decide that a hint of credibility exists in the

affidavit and a sliver of information remains that amounts to probable cause, and

that all the omissions, misrepresentations and fabrications should simply be

ignored in light of the remaining sliver, the defense contends that the Due Process

Clause disentitles the government from taking advantage of the fruits of the search.

      The Fourth Amendment guarantees that the citizens of this country will be

free from unreasonable searches and seizures. Searching a home and an office

without probable cause, or based on manufactured probable cause, that reflects a



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fictionalized account of the information known to law enforcement officers is the

quintessence of unreasonableness. The Fourth Amendment also guarantees that a

neutral and detached magistrate will determine the existence of probable cause

when a search warrant affidavit is presented. Fabricating the existence of criminal

conduct in Russia in order to search an American citizen’s property in the United

States is unreasonable by all standards; presenting a magistrate with a fraudulent

search warrant application, reduces the magistrate to anything but neutral.

      The Due Process Clause ensures that all aspects of the investigation and

prosecution of a criminal case satisfy at least minimal levels of fundamental

fairness and honesty. When the behavior of the government sinks to the level that

it shocks the conscience of the public, the remedy must befit the violation. The

proffer of an affidavit which was comprised of scores of gross misrepresentations

and perjurious statements goes well beyond shocking the conscience. Citizens

expect and demand that government agents truthfully represent the facts when they

approach a judge for search and arrest warrants. Citizens are not alone in this

regard; the courts also require truthfulness at a minimum.

      The defense urges the District Court, therefore, to consider the conduct of

the government agents not only in the context of the Fourth Amendment, but in the

context of what our criminal justice system requires in order to maintain the

integrity of the process.



                                        121
      In short, the defense urges the court to provide a remedy to the defense that

is meaningful. The defense urges the court to impose a penalty on the government

that rebukes the clearly demonstrated behavior. Simply carving out the lies from

the affidavit and adding in the omitted information accomplishes neither end.

There is virtually no deterrence if the court allows the government agents to lie and

omit exonerative information willfully and plentifully, if the only consequence is

that the transgressions will be ignored. The message is clear if this takes place: If

law enforcement can falsify or misrepresent information and not get discovered,

fine; if law enforcement is discovered falsifying information, no problem, the

illegal misconduct – the false information – will simply be ignored. It is hard to

imagine why any agent, engaged in the pursuit of crime prevention and detection,

would not routinely misrepresent the truth and fabricate evidence if there were no

greater consequence than simply being told that the misconduct would be ignored.

      For nearly fifty years, the courts have recognized that illegal behavior on the

part of the prosecution will result in a remedy. Ever since the Supreme Court

decided Rochin v. California, 342 U.S. 165 (1952), the courts have held that when

the conduct of the government is sufficiently grotesque, dismissal of the

indictment, or suppression of the evidence is the appropriate remedy. Rochin, of

course, is the seminal case in which the doctrine of governmental misconduct was

held to bar a prosecution. Rochin, in fact, involved law enforcement behavior in



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the investigative phase of a case that culminated in a series of unlawful searches

and seizures: breaking into a defendant’s house; unlawfully arresting him;

unlawfully bringing him to the hospital in custody (without probable cause); and

finally pumping his stomach to extract two capsules that contained morphine.

These Fourth Amendment violations were considered to be sufficiently outrageous

– shocking the conscience – that a remedy of dismissal of the indictment was the

only appropriate response.     These violations of the right to be free from

unreasonable searches and seizures were held to violate not just the Fourth

Amendment, but also the Due Process Clause.

      The deliberate, reckless and obstructive behavior of the Russian police, ICE

agents in Russia and the ICE agents in the United States merits deliberate

condemnation from this court. Dismissal of the indictment is warranted. At a

minimum, however, the defense urges the court, once again, to at least fully air

these allegations and allow the defense to create a record that this court and the

courts that follow may consider in evaluating the appropriate relief. This is not a

trial issue. It pertains to misconduct which resulted in a false search warrant

affidavit and an illegal search and seizure. The injury to the Defendant by the

misconduct has already occurred in the form of the search warrant and any

indictments which were based on the false information created and/or proffered by




                                       123
the government. This pre-trial issue is ripe for consideration and should not be

deferred for consideration during a trial.


                                    SECTION II

                 THE SEARCH WARRANT APPLICATION
                FAILED TO ESTABLISH PROBABLE CAUSE
               THAT EITHER CONTRABAND OR EVIDENCE
                 OF A CRIME WOULD BE FOUND IN THE
                   DEFENDANT’S HOME IN GEORGIA


                                 INTRODUCTION

      The Warrant Clause of Fourth Amendment requires compliance with two

related but distinct rules: first, the warrant must describe the place to be searched

or things to be seized with sufficient particularity, taking account of the

circumstances of the case and the types of items involved. United States v.

Spilotro, 800 F.2d 959, 963 (9th Cir. 1986); and second, the warrant must be no

broader than the probable cause on which it is based. See generally, United States

v. Falon, 959 F.2d 1143 (1st Cir. 1992). Probable cause to search a residence exists

only when there is a fair probability that contraband or evidence of a specific crime

will be found in that particular place. Illinois v. Gates, 462 U.S. 213 (1983);

United States v. Jiminez, 224 F.3d 1243 (11th Cir. 2000). The affidavit must

establish a connection between the crime and the residence to be searched. United

States v. Martin, 297 F.3d 1308 (11th Cir. 2002).



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      The Fourth Amendment protects “the right of the people to be secure in their

houses,” and it is beyond dispute that the home is entitled to special protection as

the center of the private lives of our people.” Minnesota v. Carter, 525 U.S. 83, 99

(1998) (Kennedy, J., concurring). “This Court has characterized that right as

‘basic to a free society.’ And over the years the Court consistently has been most

protective of the privacy of the dwelling.” Wyman v. James, 400 U.S. 309, 316

(1971) (quoting Wolf v. Colorado, 338 U.S. 25, 27 (1949)). “The right of officers

to thrust themselves into a home is also a grave concern, not only to the individual

but to a society which chooses to dwell in reasonable security and freedom from

surveillance.” Johnson v. United States, 333 U.S. 10, 13-14 (1948). The mere

conjectural possibility – the sheer speculation – that perhaps, maybe, there might

be a travel document somewhere; that there might be an itinerary somewhere, that

there might be some evidence, somewhere – is not a sufficient basis to authorize a

search of a home and the seizure of any computer that might possibly be found

therein.

      The sworn search warrant affidavit authored by Agent Cory Brant purported

to set out probable cause establishing that (1) Dr. Kapordelis was a child

pornography collector who possessed child pornography and production equipment

at his home, office and on his computer; (2) Dr. Kapordelis was a sex tourist who

intended to travel in foreign commerce in an effort to engage in sexual acts with



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minors and that evidence of this crime would be found in the Defendant’s home

and office; (3) that Dr. Kapordelis engaged in illicit sexual acts with minors in St.

Petersburg, Russia and that evidence of these crimes would also be found in the

Defendant’s home and office. To Agent Brant it was imperative that he somehow

establish probable cause to search the defendant’s home, office and computer

given that every search thus far (computer in Russia and New York, residence in

Russia) was completely fruitless. As will be clearly demonstrated in this section of

the brief, there was no legitimate nexus to the Defendant’s property.

      The defense does not expect that the search warrant will survive the

amputations necessitated by the Franks v. Delaware inquiry given the deliberate

and pervasive violations of the Defendant’s Fourth Amendment and Due Process

guarantees. The Affiant and those who supported this investigation were clearly

intent on deceiving the U.S. magistrates and thwarting justice, rendering any

statements made by them suspect at a minimum. When the factual basis for the

affidavit is considered in totality, there is no reason for any presumption,

assumption, deduction or conclusion that Dr. Kapordelis was engaged in any

criminal conduct. If, however, the search warrants are not rendered null and void

by the mandates of Franks v. Delaware and the Due Process Clause, the matter

before the Court next is to consider:




                                        126
       What post-Franks probable cause existed in the search warrant with

          regard to alleged criminal activity?    That is, what crime did Dr.

          Kapordelis allegedly commit?

       Is there post-Franks probable cause establishing a nexus between any

          alleged criminal activity in Russia and the Defendant’s home, office or

          computers, or probable cause that any contraband or evidence of a crime

          was at the Defendant’s home, 6,000 miles away from St. Petersburg,

          Russia.

       Based on post-Franks probable cause, what particular items could be

          searched for at the home or office?



1. Russia and New York Searches as They Pertain to the Issue of A Nexus
   Connecting Evidence of Criminal Conduct at Dr. Kapordelis’ Homes or on
   his Computer:


      Shortly before Dr. Kapordelis left Russia, and prior to his arrest at JFK

Airport in New York, his apartment in Russia was searched by Russian police.

The American attaché was standing by just outside the apartment and was fully

apprised of the results of that search:

    The search of Dr. Kapordelis’ apartment in Russia was conducted in order to

      obtain evidence supporting the allegation that he was engaged in criminal

      conduct, either related to child molestation or child pornography. No such

                                          127
  evidence was obtained. This fruitless search in Russia eviscerates almost

  entirely the probability for any evidence related to criminal conduct in

  Russia being discovered at the Defendant’s home or office in Gainesville,

  Georgia.

     o No blue and white pills were found anywhere

     o No pornography or contraband was discovered anywhere

     o No photographs of the alleged victims were found anywhere

     o Juveniles G and H were interviewed at about the same time that the

        search was conducted and they exonerated Kapordelis of any

        misconduct.

     o Exonerations were also provided by Dr. Kapordelis’ translator who

        was interviewed during the search.

     o The bona fides and legitimacy of Kapordelis’ adoption of Juvenile-H

        was confirmed by the authorities during this search.

     o The legitimacy of Dr. Kapordelis’ visits to Russia was confirmed by

        Juvenile-H, Juvenile-G and Mr. Marchenko.

 The only computer associated with Dr. Kapordelis’ travels to Russia was

  examined for over two hours during this search of the apartment, specifically

  for pornography or evidence of criminal conduct, with fruitless results. This




                                   128
  further diminished the basis for any assumption that there would be any

  evidence on any other computer.

 When Dr. Kapordelis arrived at JFK Airport in New York, the computer was

  again searched, this time by an ICE agent. Again, there was no evidence

  uncovered during this search – no pornography, no other evidence of a

  crime.

 Dr. Kapordelis provided the following information to ICE agents in New

  York several hours before the search warrant was presented to U.S.

  magistrates:

     o He eagerly agreed to answer questions both before and after his arrest.

     o He denied any validity to the allegations made by the juveniles.

     o He told ICE agents that the allegations were being falsely made and

           orchestrated by the Hotel security staff at the Hotel Grand Europe

           which attempted to extort from him five months earlier, after he and

           Dr. Racanska fed a boy named Juvenile-A who was found begging

           outside the Hotel front door.

     o He told ICE agents that he was approved to adopt Juvenile-H and that

           the adoption was the purpose for his visits to Russia and the

           orphanage, Dom Miloserdia.

     o He denied knowledge of any pornography on his computer.


                                      129
         o He consented to a brief search of his computer for pornography.



2. Nexus Issues Relevant to the Interviews of the Two Employees in the
   United States.

      In addition to the information learned (or more accurately, the lack of

evidence learned) during the Russian and JFK searches, the ICE agents

interviewed two colleagues of Dr. Kapordelis in Gainesville, as discussed in the

Franks argument, above. They did not provide any information to the ICE agents

that Dr. Kapordelis was engaged in any illegal conduct, or that there was any

evidence of a crime on his computers or in his home. They were aware that he

owned a computer, but there was no way to conclude that this was computer was

any other than the computer with which he traveled and which was, at the time of

the searches, safely in the custody of the New York ICE agents. In short, the

interviews of Fankhauser and Hernandez added nothing to the information known

to the ICE agents about whether the defendant had ever committed any crime, and,

for purposes of this section of the brief, that there was any evidence of a crime that

was likely to be found at his house.


3. The Affiant’s First Asserted Nexus: Defendant was a Child Pornography
   Producer, Collector or Possessor:

      In order to persuade the search warrant magistrate that Dr. Kapordelis’ home

should be searched, the affiant urged the magistrate to believe that there was

                                         130
probable cause demonstrating that Dr. Kapordelis was a collector and producer of

child pornography.      The affiant presented a boiler-plate dissertation of the

mannerisms, qualities and habits that pertain to child pornography collectors and a

boiler-plate litany of items to be searched and seized based on these characteristics.

Never once, however, did the affidavit establish that Dr. Kapordelis ever possessed

child pornography, looked at child pornography, produced child pornography or

thought to engage in such acts, much less that he was a collector of child

pornography. The four corners of the affidavit utterly failed in the effort to portage

from allegations of child molestation in Russia to probable cause to search

computers for child pornography in the United States.

      Incredibly, the “investigative” section of the affidavit, where probable cause

is supposed to be established, never once displayed the word child pornography.

And yet, the characteristics of being a child pornography collector was the

Affiant’s primary nexus between the alleged criminal activity in Russia and the

objects sought to be seized from Dr. Kapordelis’ home, office and computers in

Georgia; this is evident by the fact that almost every item listed as “to be seized or

searched” pertained to child pornography and computers and not to the allegations

of molestation stemming from Russia. By failing to present any evidence or

testimony that Dr. Kapordelis was a child pornography possessor or collector, any

presumed nexus establishing a link between the purported but unsubstantiated



                                         131
crime of child pornography possession and the location where evidence was to be

found, was equally baseless. In short, the search warrant failed to clear two of the

most important hurdles pertaining to Fourth Amendment protection against

unlawful searches and seizures: (1) to establish probable cause that the crime was

committed; (2) to establish probable cause that specific evidence of the crime

would be found at the place to be searched.

      In United States v. Zimmerman, 277 F.3d 426 (3rd Cir. 2002), the court

found that the officer’s search warrant affidavit did not establish probable cause to

search the Defendant’s home for child pornography, where virtually the entirety of

the lengthy affidavit recounted various incidents in which the Defendant, a high

school basketball coach, allegedly sexually accosted students at the high school or

on athletic road trips, with only brief mention made of pornography, and no

information that the Defendant had ever possessed or purchased child

pornography. In Zimmerman, one or two juveniles were shown an inappropriate

sexual video clip, reflecting oral sex between a woman and a horse, on the

Defendant’s home computer. The court added that there was no reason to believe

that the video clip was actually downloaded onto the Defendant’s computer since

the juveniles’ statements indicated that the clip was viewed from the internet

directly. The affidavit also contained an “opinion” by a postal inspector stating,

among other things, that persons with a sexual interest in children may possess



                                        132
child pornography and keep it in their homes for long periods of time. The Third

Circuit found, however, that the postal inspector’s statements did not refer to

Zimmerman or the facts of this case, and there was no indication that he knew

anything about either. Clearly, the officers intended to enter Zimmerman’s home

to retrieve child pornography, although there was no information in the affidavit or

anywhere else indicating that child pornography was—or ever had been—located

there.” The Third Circuit held that the good faith exception to the exclusionary

rule did not apply and suppressed the fruits of the search.

      Distinguishing Zimmerman from Dr. Kapordelis’ case, one notes that

Zimmerman was undeniably shown to be a child molester based on the complaints

lodged by thirteen credible juveniles. In Dr. Kapordelis’ situation, the juvenile

claimants had been sexually molested or exploited by Mr. Lapov who, along with

the lead Russian investigator, were forcing the juveniles to make false allegations

against the Defendant. In Zimmerman there was only marginal probable cause to

support the search for the adult pornographic video clip that was shown to minors

on a computer in the Defendant’s home (there was a question of this allegation

being stale). This, however, did not provide probable cause to search for child

pornography in any fashion. Regarding Dr. Kapordelis’ circumstances, no child or

adult pornography of any kind was materially referenced in the investigation

section of the affidavit and no pornography, contraband or evidence was ever



                                         133
linked to the Defendant’s home, office or computer(s). More important, apart from

laptop computer seized from Dr. Kapordelis in New York on April 12, 2004 and

fruitlessly searched, no evidence was provided by the Affiant to suggest, more than

by mere speculation, that Dr. Kapordelis owned any other computer, that any other

computer would be at Dr. Kapordelis’ home at the time of the search or that any

computer had an evidentiary value. As with the Affiant in Zimmerman, Agent

Brant’s main interest in a random search for child pornography was overt,

pervasive and baseless.

      In an effort to fill this material void regarding child pornography, the Affiant

misrepresented and/or fabricated two distinct “gap fillers” which were proffered to

the magistrate in order to enhance the chances for authorization for a search

warrant:

       The fleeting reference to one juvenile seeing “a moving picture of

           himself” on the Defendant’s laptop computer in Russia, on a date when

           Dr. Kapordelis was not even in the country, was Agent Brant’s first “gap

           filler.” The Affiant reported that the juvenile claimed the video was

           about one-minute long. There was no claim made by the Affiant that the

           juvenile alleged (1) the photograph was pornographic or sexual in nature;

           (2) the juvenile was naked or exposed; (3) the movie clip revealed a

           “below the waist” versus and “above the waist” view.          Hence, this


                                         134
         information had no relevance to pornography at all. The Affiant failed to

         disclose that after two searches of Dr. Kapordelis’ computer, no picture

         (video or still) of Juvenile-D was ever discovered. This refutation of

         Juvenile-D’s allegation should have alerted the investigators and would

         have alerted the magistrates to the fact that he was lying; especially given

         all the other statements made by Juvenile-D that were known to be

         impossible.    And, of course, the laptop computer that presumably

         contained this video clip was not in his home in Gainesville, but was in

         the possession of the ICE agents in New York.

       The statement attributed to Mr. Lapov, the “operational Russian source,”

         regarding the distribution of pornography in Russia was bogus to begin

         with and the source’s credibility and basis were far less than zero. The

         Affiant’s deliberate alteration of the source’s statement, designed to make

         it corroborative rather than discrediting, demonstrates that the statement

         was known to be false. Neither the government, nor Magistrate Brill

         considered this information pertinent regarding the nexus issue.

      In short, there was never any claim that there were any photographs related

to child pornography as defined in 18 U.S.C. § 2256, the source cited by the

Affiant as containing the definition of child pornography. Asking a magistrate to

deduce that non-pornographic photographs, either known not to exist (as in the


                                        135
case of Juvenile-D) or known to be based on an informant with negative credibility

(i.e., Mr. Lapov), establish probable cause to believe that pornographic materials

will be found in the Defendant’s home is far fetched and certainly not based on

probable cause. To further claim that there was probable cause to believe that

pornographic photos would be found on a laptop computer which had already been

searched twice by law enforcement, with negative results, and which was then

known not to be located in Georgia, defies gravity.

      In United States v. Alvarez, 127 F.3d 372 (5th Cir. 1997), the Defendant

showed a videotape to a police officer. The video depicted a minor who briefly

exposed her breast. The officer applied for a search warrant, stating that the

Defendant had shown him a video that contained a minor engaged in sexually

explicit conduct. The officer later testified that he was basing this on the state law

that defined sexual conduct as including “lewd exhibition of the genitals,” and his

belief that breasts were genitals. The evidence should have been suppressed based

on this recklessly false search warrant affidavit. Among other problems, there was

no reason why the officer could not have set forth what he actually witnessed,

rather than deducing the conclusion for himself.

      It is by no accident that almost every item listed in the search warrant

application to be seized or searched within Dr. Kapordelis’ home and office related

specifically to child pornography and computers based on the characteristics of



                                         136
child pornography collectors.      The only proposed nexus to the Defendant’s

computers at all pertained to the search for pornography, more often called “visual

depictions” in the search warrant application. One can reasonably assume that the

Affiant did not even read the boiler-plate description of pornography collectors or

the boiler-plate list of things to be searched and seized; if he had, he would have

realized that nothing was offered in the affidavit to provide any probable cause to

support this primary contention.

      Certainly, if but one person had made a claim that Dr. Kapordelis possessed

child pornography, showed someone child pornography, produced child

pornography or distributed child pornography, it would have been expressly

mentioned by agent Brant in the affidavit; not hinted at, implied, coded or veiled.

      Magistrate Brill’s R&R seeks to distinguish Zimmerman on the basis that,

though the search warrant application was deficient in alleging facts relating to the

presence of child pornography in the defendant’s home, there was sufficient

information supporting the conclusion that there might be photographs that were

non-pornographic of the defendant with children. Maybe so, maybe not. But

whether there was probable cause to believe that such photographs might exist, that

was not what the search warrant identified as the items sought to be found. If the

search warrant does not ask for permission to search for such items (or specifically

set forth probable cause to search for such items) it is not the office of the court,



                                         137
post hoc, to conjure up what would have been a legitimate subject for the search.

Magistrate Brill erred in concluding that he could have and therefore, the search

was properly conducted.14 The Zimmerman court also addressed this type of

situation and concluded, At the time the search warrant was issued, Zimmerman

had been charged in state court with two crimes: corruption of minors and simple

assault. The affidavit of Sergeant O’Connor is replete with probable cause that

Zimmerman committed both crimes. But the police were not looking for evidence

of “wrongdoing,” which is the only probable cause the District Court found and

the conduct on which the Dissent, mistakenly in our view, focuses. The police were

looking for pornography.

       In United States v. Weber, 923 F.2d 1338, 1342 (9th Cir. 1991), the

defendant’s house was searched pursuant to a search warrant which was directed at

the presence of child pornography in the defendant’s home. This occurred after a

reverse sting operation, wherein the defendant purchased four photographs from an


14
  Agent Brant did not state in the search warrant that he was looking for innocent group pictures
of children in the Defendant’s home office or computer; the only photographs he sought to
search and seize were – purely, simply and baselessly – child pornography; something for which
he lacked probable cause. Other than for the baseless assertions regarding child pornography,
probable cause was not alleged to exist in support of a search of any computer. Assuming, for
arguments sake, the government is somehow supported in its rummaging request to search a
computer, not one (a) GIF file, (b) JPEG file, (c) MPEG file or (4) PCT (picture) file could have
been opened on any computer based on the Affiant’s fatally flawed probable cause assertions and
based on the Affiant’s specific list of “things to search and to seize” at the Defendant’s property.
Simply put, the plain view doctrine does not provide the Government with the right to randomly
search millions of computer files with disregard to the type of file supported by probable cause.
One can not assert plain view when searching for a car in an oven; similarly, on can not assert
plain view to search for a travel document or airline ticket in a picture file.


                                                138
undercover solicitation sent to him via e-mail.      When the photographs were

ordered and delivered, the government obtained a search warrant for more than just

the four photographs. The search warrant also allowed officers to search for a

wide variety of magazines and advertising materials, the existence of which was

not backed up by probable cause. The only evidence against Weber was the fact

that a couple of ads addressed to him apparently depicted child pornography.

There was no probable cause to suggest that more than the four photographs would

be found in Weber’s home.       The items to be seized must be described with

sufficient particularity and must be “no broader than the probable cause on which it

is based.”    The Ninth Circuit held that the affiant’s statement about the

“proclivities of pedophiles” did not support a wall-to-wall search of the house.

The affidavit simply did not support a search for child pornography in general.

The court rejected certain aspects of the warrant as “rambling boiler-plate

recitations designed to meet all law enforcement needs.”        There is one very

important point that distinguishes Weber from Dr. Kapordelis’ case. In Weber,

child pornography was actually tied to the defendant’s home yet there was no

probable cause to assume that more than what was thought to be there would be

there; in Dr. Kapordelis’ case, child pornography was never claimed to exist, much

less that it existed in the Defendant’s home or office or computer. Like the law

enforcement officers in Weber, Agent Brant was not interested in finding the



                                        139
laptop photo of the juvenile referenced in the affidavit, a photo that was not

discovered despite two searches of the very laptop mentioned in the affidavit;

instead, agent Brant wanted to find pornography, pornography and more

pornography. Similar to both Zimmerman and Weber, Agent Brant predicated his

entire search warrant affidavit, or at least 99% of it, on a conclusion that was never

legitimately supported in the investigation.

      The magistrate’s responsibility in determining whether to issue a search

warrant is “simply to make a practical, common-sense decision whether, given all

the circumstances set forth in the affidavit before her….there is a fair probability

that contraband or evidence of a crime will be found in a particular place. Illinois

v. Gates, 462 U.S. 213, 238, 103 S. Ct 2317, 76 L.Ed.2d 527 (1983). In this case

the warrant affidavit lacked sufficient indicia of probable cause to support a

finding that the Defendant ever possessed child pornography, produced child

pornography, obtained child pornography or looked at child pornography;

therefore, there was no basis to further claim that evidence of child pornography

would be found at the defendant’s home or on a computer known not to be at the

Defendant’s home.

      In Weber, caution was offered when a lengthy chain of inferences are used

to buttress probable cause. It requires several inferential leaps to presume that

there probably would be child pornography at Dr. Kapordelis’ home or office. The



                                         140
chain of inferences that the government asks the court to draw is not only lengthy

but also improbable. Each inference, standing alone, is unreasonable. But with

each succeeding inference, the last reached is actually less and less likely to be

true. In fact, fair probability becomes possibility if you consider that the affiant

used a boiler-plate rendition of “characteristic of child pornographer collectors”

while never showing that Defendant even possessed or produced child

pornography; possibility blends into chance when you recognize that two previous

computer searches and one physical search of the apartment in Russia confirmed

that no child pornography or evidence of any crime was possessed by the

Defendant; chance becomes doubt when one acknowledges that nowhere in the

investigative portion of the affidavit is anything specifically linked to the

Defendant’s home in any way; doubt withers into improbability when you consider

that the Affiant was involved in over fifty examples of deception (Franks v.

Delaware issues) when he authored the affidavit in support of the search warrant;

and finally, improbability sinks to impossibility when it is understood that the only

computer that might contain anything of evidentiary value was not in Georgia, at

all.

       The use of boiler-plate lists by the Affiant to describe “everything under the

sun” proves quite clearly that the Affiant was searching for whatever he could find,

not something that he expected to find with sufficient probability and a reasonable



                                         141
nexus. The detailed list of “characteristics of child pornographers” and the all-

inclusive list of “items to be seized based on this profile” suggest that the Affiant

specifically linked the profile to the Defendant in some fashion somewhere in the

affidavit. Quite the opposite was true; the Affiant never provided any evidence

showing that the Defendant fit the profile in any way.

      Boiler-plate lists are shunned in federal court simply because they fail to tie

the accused to specific evidence that is presumed to exist in a specific location

based on knowledge rather than suspicion, by deduction rather than chance and by

investigation rather than speculation.

      In Magistrate Brill’s Report and Recommendation, she apparently takes note

of the lack of any basis for the allegation that Dr. Kapordelis had any child

pornography.    For this reason, Magistrate Brill attempted to rehabilitate the

affidavit by suggesting that the magistrate who issued the search warrant could

infer that Dr. Kapordelis was a pedophile.       Magistrate Brill then argues that

pedophiles are known to keep pornography in their homes. The defense disagrees

with this effort for several reasons: (1) Pedophilia is a medical diagnosis made by a

medical doctor who examines both the patient and the evidence at hand; this

diagnosis is based on sexual attractions or activities with prepubescent children.

(2) The Affiant, himself, did not conclude that Dr. Kapordelis, based on the limited

information that he had, was a “pedophile.” (3) The Affiant’s efforts to conceal



                                         142
the actual ages of the individuals allegedly visiting Dr. Kapordelis’ home, or the

fact that families accompanied them, exemplifies his desire to misrepresent the

visitors as young defenseless prepubescent children rather than 17 or 18 year olds

like “Vasek.” (4) While the intersection of medicine and law is a complicated one,

there is not a decision in any federal or state court – trial or appellate – that would

support what Magistrate Brill essentially concludes: if a person is believed to be a

pedophile, his home can be searched anytime, by any law enforcement agency, by

showing to the Magistrate nothing more than the fact that the target is believed to

be a pedophile.

      To date, as far as the defense is aware, there is no “pedophile” exception to

the Fourth Amendment. If, as in this case, there is no information known to the

police that would support the conclusion that pornography would be found in the

defendant’s home or computer, the DSM-IV does not furnish the probable cause.


4. The Affiant’s Second Asserted Nexus: The Defendant Planned in the
   United States to Engage in Sex Tourism in Russia, Engaged in Sex Tourism
   in Russia and that Evidence Would Be Found in the Defendant’s Home,
   Office or Computer.


      The search warrant affidavit purported to set out probable cause that the

Defendant planned to travel in foreign commerce in order to engage in sexual

relations with minors in Russia; that the Defendant was involved in illicit sex acts




                                         143
with minors in Russia; and, that the fruits of these crimes would be found in the

Defendant’s home and office in Gainesville, Georgia.

      These claims were made despite the fact that the Defendant’s personal

property and residence in Russia were searched extensively and failed to yield any

evidence supporting any of these allegations. Since the physical search in Russia

was concealed from U.S. magistrates, they were unable to discredit the even more

unrealistic nexus connecting the alleged crimes in Russia to the Defendant’s

residence and office in the United States. This omission on the part of the Affiant

was not by accident.

      In the investigative section of the affidavit, 99% of statements focused

specifically on allegations of sexual encounters with minors in Russia. These

accusations are refuted in the Franks v. Delaware section (Section I) of this brief.

No evidence or witness statements were presented to identify, corroborate or

purport that the Defendant made plans or arrangements, from his home or office or

computer, to engage in sex acts in Russia with minors.           This was simply

unsupported conjecture on the part of the Affiant.

      Assuming, for arguments sake, that the sexual encounters in Russia were

somehow supported by probable cause, the lack of any witness statement or

evidence showing that the Defendant planned or arranged to perpetrate these acts

from the United States negates the requisite nexus between the alleged sex acts and



                                        144
the Defendant’s home, office or computer         For example, the search warrant

application presented no evidence or testimony establishing that the Defendant

made reservations with a sex tourism company from his home, office or computer;

that the Defendant visited sex tourism web sites from his home or office or from

his computer; that the Defendant made contact with children in Russia from his

home, office or computer in an effort to have sexual relations in Russia; or, that the

Defendant made contact with any individual from his home, office or computer for

the purpose of engaging in illicit sexual acts with minors in Russia. Not only does

investigative section of the affidavit clearly fail to even hint at any allegations of

criminal conduct or any evidence of criminal conduct pertaining or related to the

Defendant’s home, office or computer, but the search of the Defendant’s laptop in

Russia and New York failed to support any of the Government’s proffers related to

planning of sexual liaisons in Russia from the United States.

      Hence the need by the Affiant to create yet another imaginary nexus to the

Defendant’s home – little Russian children frolicking about are being sexually

abused at Dr. Kapordelis’ whim. This was, as mentioned earlier in this brief, a

complete fabrication conceived and produced by the Affiant. Testimony before

Magistrate Brill confirms that there was never any allegation or evidence of

Russian children in Dr. Kapordelis’ home at any time. The magistrate who was




                                         145
asked to authorize the search warrant did not realize that the Affiant assumed no

distinction between facts and fiction in his sworn document.

      Consider also United States v. Gourde, 382 F.3d 1003 (9th Cir. 2004). The

FBI learned about a website that permitted members to download child

pornography. Defendant Gourde was determined to have been a member of the

web site for two months. The FBI obtained a search warrant, claiming that any

member would have had access to the child pornography. The affiant offered

various expert opinions about the M.O. of child pornographers on the internet. The

Ninth Circuit held that there was no probable cause to search the defendant’s house

and seize his computers based on this information. Moreover, Leon did not apply,

because no officer could have relied in good faith on this warrant. There was no

information that Gourde had actually downloaded any files from the website,

though the FBI acknowledged that it had the capability of determining whether he

did prior to the time the search was executed. Similarly in the instant case, the

Affiant accessed information from Dr. Kapordelis’ internet service provider but

presented no information in the affidavit suggesting that Dr. Kapordelis used the

internet in any illegal or evidentiary manner.




                                         146
5. Miscellaneous Issues Pertaining to a Purported Nexus

      The defense concedes that the description of the physical structures to be

searched were both specific and accurate as indicated in the search warrant

application and search warrant. The home, office and luggage that were searched

were, in fact, the Defendant’s home, office and luggage. Beyond this general

specificity, however, the search warrant degraded to nothing more than a fishing

expedition replete with a large number of fishermen, a limitless spool of line and

an unlimited quantity of bait. Absent, however, was any indicia of probable cause,

and any nexus demonstrating why one would expect to find “fish” in Dr.

Kapordelis’ home or office. The only computer known to exist, after all, was

already in the possession of ICE agents in New York and the Affiant’s only

proffered link to computers was pornography

      Boiler-plate descriptions of places to be searched and items to be seized

were used in the affidavit; lacking was any evidence or statement showing why

something specific could be, might be, should be or would be found in the

Defendant’s home or office. The only inference generated in the search warrant

application was the possibility that, by mere suspicion or chance, some

incriminating document might be found at the Defendant’s home or office simply

because it was the Defendant’s home and office. Mere suspicion is precisely what

the Fourth Amendment of the U.S. Constitution was designed to prohibit. To



                                       147
illustrate this point further, consider that the Defendant owned three homes within

a twenty mile radius of each other. What, other than mere suspicion, could have

warranted a search of the large lake home, occupied at the time of the search by a

visiting physician who was covering the Defendant’s practice, over the other two

homes? In short, there was nothing specific that the agents could be searching for

which made the one home preferential, by probable cause, over the other two; in

essence it was a search of the Defendant’s home only because it was his home, not

because there was something that the agents expected to find, particularly, inside

that home.

      The issue of specificity is clearly lacking in the search warrant affidavit

authored by Agent Brant. He seeks authorization to search for airline tickets,

travel documents and the like while failing to specifically ask for documents that

are supported by probable cause. For example, nowhere does the Affiant relate

that these documents should be relevant to travel by the Defendant to Russia;

nowhere does the Affiant suggest that these documents be limited to the dates

during which criminal activity allegedly occurred. Instead, Agent Brant seeks to

find any travel document known to existence as long as it is “for the purpose of




                                       148
engaging in sexual conduct with minors.”15 What does this imply? What is

limiting the search to that which is supported by probable cause?

       Exception is taken, briefly, to the alleged “blue and white pills” referenced

in the investigative section of the affidavit and linked, by unsubstantiated and

wishful suspicion only, to the Defendant’s home or medical practice. To the

Affiant’s credit, he did not ask for generic pills or medicines when he wrote his

search warrant affidavit, he asked specifically for “blue and white pills” as actually

supported, albeit falsely, in the investigative section of the affidavit. This suggests

that the Affiant clearly understood what specificity concerns. The purported nexus

in the affidavit was that the Defendant is a medical doctor and he has access to

medicines that would render a person unconscious. At first glance, this nexus

seems reasonable; it becomes remarkably attenuated, however, when one considers

the following: First, an extensive search of the Defendant’s person, his Russian

residence and his luggage was executed by Russian police in cooperation with

Agent Edgar Lacy of ICE on April 8, 2004 and failed to reveal any blue and white


15
   Once again, the Defendant asserts that probable cause did not exist to search any computer
based on the four corners of the search warrant affidavit, much less a computer in the
Defendant’s home which was not in any way connected to the crimes alleged to have been
committed by the Defendant in Russia. If the court disagrees and authorizes the search for travel
documents and airline tickets at the Defendant’s home (i.e. hard documents, computer
documents, etc), these items should be specifically connected to Defendant’s alleged misconduct
in Russia, not to any travel to any place, at any time. As such, the broken laptop computer
found in Defendant’s closet, which had not been used since the spring of 2003, should be, by
necessity off-limits.


                                              149
pills, or any other contraband for that matter; second, the reasonable nexus would

have been that the pills, if they ever existed, would have been found on the

Defendant’s person in Russia or, by chance only, in the Defendant’s residence in

Russia, given that the alleged crime was purported to have occurred in Russia –

6,000 miles away from his home in the United States; third, the Affiant

interviewed Dr. Kapordelis’ surgery center colleagues in the United States and was

told that blue and white pills did not exist on the formulary.

         The only reference to searching for something other than “visual depictions

of child pornography” or “blue and white pills” existed in one small paragraph

(compared to the twelve pages which mindlessly pertained to child pornography)

pertaining to tickets, itineraries and travel documents evidencing travel in foreign

or interstate commerce for the purpose of engaging in sex acts with minors.

Suffice it to say, (1) this evidence was never linked to the Defendant’s home or

office by probable cause, possible cause or even wishful cause; (2) this evidence

was never linked to the defendant’s laptop computer or any other computer; the

search was in no way limited to that which was arguably defined by probable

cause.




                                         150
                                   CONCLUSION

      For the foregoing reasons, the defendant urges the court to reject the Report

and Recommendation of the Magistrate and to either grant the defendant’s Motion

to Suppress, or to set this matter down for an evidentiary hearing.


                                       Respectfully submitted,

                                       GARLAND, SAMUEL & LOEB, P.C.




                                       DONALD F. SAMUEL
                                       Ga. State Bar #624475
3151 Maple Drive, NE
Atlanta, Georgia 30305
404-262-2225
Fax 404-365-5041
dfs@gsllaw.com




                                         151
               IN THE UNITED STATES DISTRICT COURT

             FOR THE NORTHERN DISTRICT OF GEORGIA

                             ATLANTA DIVISION


UNITED STATES OF AMERICA )
                         )
    v.                   )                    CASE NO. 1:04-CR-249
                         )
GREGORY C. KAPORDELIS,   )
                         )
         Defendant.      )

                         CERTIFICATE OF SERVICE

      I hereby certify that I have this day served a copy of the foregoing

Defendant’s Objections To The Report and Recommendation Of The Magistrate

upon Aaron Danzig, Assistant United States Attorney by electronic mailing.

      This 13th day of January, 2006.




                                DONALD F. SAMUEL




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