- Associated Press - Monday, April 18, 2016

LOS ANGELES (AP) - A federal judge said Monday she’s considering throwing out at least one conviction against a former Boeing manager found guilty of receiving and possessing child pornography that was uncovered during an unrelated espionage investigation.

Federal Judge Christina Snyder said she needs more time to consider the facts of the case and postponed the sentencing of Keith Gartenlaub.

Snyder indicated she was planning on vacating one of the two child pornography convictions against the 47-year-old Gartenlaub, saying they may be duplicative.

Gartenlaub’s attorney Mark Werksman repeated arguments that the entire case should be dismissed because of the way the government obtained a search warrant involving Gartenlaub’s home and computers.

The warrant, obtained through the nation’s secretive intelligence court, was based on allegations of a crime for which Gartenlaub has never been charged - espionage.

Gartenlaub has been unable to obtain any information that the Foreign Intelligence Surveillance Court relied on to issue the warrant. Such information is accessible to the vast majority of defendants charged with crimes.

“They didn’t come across Mr. Gartenlaub because he was in a chatroom trolling for child pornography, there was never a sting where he talked to an undercover” officer, Werksman told the judge. “They stumbled upon this evidence in the course of an unrelated investigation whose genesis, the facts underwriting it, are secret to us. That has to trouble your honor.”

Snyder previously ruled that the warrant was lawfully issued and the evidence properly gathered.

On Monday, she reiterated she believes the government complied with the law but said she does have “personal questions” about the Foreign Intelligence Surveillance Court’s proceedings and noted that the matter most likely would end up in an appellate court.

“This is not an ordinary case,” Snyder said. “The government, as best I can tell, has done exactly what it’s required to do under the law. The question now is, given the conviction, where do we go from here?”

Snyder suggested that the government’s recommendation that Gartenlaub be sentenced to 10 years in prison seemed too high since he was not accused of producing the pornography.

Snyder initially indicated during the hearing that she was considering throwing out the lesser charge - possession of child pornography - against Gartenlaub. It wouldn’t necessarily carry prison time.

Werksman then argued that if she only vacates one conviction, it should be receipt of child pornography, which carries a mandatory minimum of five years in prison.

Federal prosecutor Anthony Lewis argued that both convictions should stand, saying the charges are supported by evidence.

FBI agents say they found the child pornography images on Gartenlaub’s computer two years ago as they were investigating a potential data leak at Boeing. As part of that probe, they obtained a secret warrant from the Foreign Intelligence Surveillance Court.

Courts have consistently found that disclosing material involving the Foreign Intelligence Surveillance Court could expose sensitive intelligence secrets. In Gartenlaub’s case, then-Attorney General Eric Holder advised against disclosure.

In an interview with The Associated Press last month, Gartenlaub said he has a right to know and fight the government arguments that were used to obtain the warrant.

“You can’t base a search on lies,” he said.


Associated Press writer Eric Tucker contributed to this report from Washington.


This story has been corrected to reflect that Gartenlaub was convicted of two federal charges, not three.

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