Hardman - The Extra News
November 11, 2019 - Over the past three weeks I received some new and unexpected information from David Hardman and other sources. This is a short update to correct or clarify some items I posted in "The Hardman Report" (April 2019) and "Hardman - The Rest of The Story" (October 2019).
• I now have the interview notes, with names of the minors redacted, from the FBI talking with girls that posed for Hardman. These notes are known as "FD-302" or just "302s" in the Federal system. The term "302s" has been mentioned much in the media over the past two years during the ongoing saga about General Michael Flynn.
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• I now have a copy of the FBI Special Agent prepared affidavit that was submitted to the Magistrate Judge to get the search warrant. Names of minors have been redacted.
• I now also have a copy of the actual warrant itself.
All of the above are in paper form and released as part of a normal "Freedom of Information Act" request. I don't have a scanner nearby but when I have a chance I'll try to get them scanned into PDF and post links here.
The combination of these documents confirm a few things, answer a few questions, and bring up further questions. I'll go through the main points here today, in no particular order, but I'm not going to get too detailed. The case is what it is and there isn't much left to discuss.
In early letters to me Hardman indicated that the FBI "had found" his storage locker, managed to get in it, seized stuff without a warrant and was using that stuff against him. The indication was that the materials he was charged with had been in that locker. The new documents indicate that he had two storage lockers, that he voluntarily signed a waiver for the FBI to access those lockers, and that none of the materials in the Hardman case relate to anything that was found in the storage lockers. It turned out to be personal property and hundreds of old VHS and Hi-8 video tapes from back in his Spring Break bikini contest taping days.
The FBI had been given control of the email account normally used by the mother of a model. This mother also did some scouting for models, and driving of models, for Hardman. The FBI used that account, and one of their own "UC" (under cover) email accounts, to communicate with Hardman but at no time on the official record, or within these new documents, did Hardman offer anything illegal to law enforcement officers through email discussions.
In "Hardman - The Rest of The Story" I laid out a long theory in the grey box titled "Opinion by Guessing". That theory included the following paragraph but I know now that the conversations by email with "R.H." did not produce any information that was used in the search warrant application / affidavit. My "guessing" was wrong on that point.
Over weeks "R.H." and Hardman communicated by email. I assumed that at some point in those emails, Hardman said something or agreed to something that "R.H." knew was over the line, or that "R.H." was confident he could present in an affidavit as being over the legal line. We know that whatever he agreed to, no matter if he truly meant it or not, was enough to get a Federal Judge or Magistrate to issue a search warrant authorizing a search of his home, even if by forced entry, to look for evidence related to the "attempted production of child pornography".
Various affidavits from FBI agents state clearly that they arrived at his home to search for evidence related to "Attempted Production". I always found that very odd. It led me to assume it was not a retail product they had been investigating and that the warrant was based on his offering to do something (see paragraph above). The actual warrant itself, received within these new documents, states "Violation of 18 U.S.C. 2251 for Production and Attempted Production". I can't explain why within the official court filings that discuss the warrant, such as the snippet below, the FBI agents use only the phrase "Attempted Production".
In each interview with a model, all of whom are minors, they ask the same three questions; (1) Did Hardman every ask you to pose nude, (2) did Hardman ever ask you to pose topless (or expose your breasts) and (3) did Hardman ever ask you to pose in a "slingshot" swimsuit. Those questions are interesting for what they don't state. None of those things - a nude minor, a topless minor, or a minor in a tiny "slingshot" swimsuit - is a violation of the law in and of itself. Recall that the Supreme Court in New York v. Ferber stated, when speaking of minors, that "depictions of nudity, without more, constitute protected expression". The "more" the Supreme Court references is something sexual, which in legal terms has come to mean "sexually explicit conduct". I explained in "The Hardman Report" how nudity doesn't equal illegal, so even if Hardman did have a girl in a "slingshot" swimsuit and her pubic hair showed, or a breast popped out, it is not automatically a legal violation unless it includes a "lascivious exhibition of the genitals or pubic area".
The affidavit for the warrant never makes a firm claim he broke the law or includes any examples of him doing so, such as videos, photos or screen captures. The document never uses a single line from the Federal law they are seeking to enforce, such as "lascivious exhibition of the genitals or pubic area". It simply describes a slingshot swimsuit as something that models in the age range should not wear, but that he often asked them to wear.
Neither the affidavit or the warrant seem to come close to meeting the enhanced standard and I'm in shock it was approved. The fact that it was never acted on in court further indicates that Hardman's lawyer didn't have basic knowledge of cases involving the First Amendment, didn't give a fuck, or both.
The last of the FD-302 forms contains notes about a phone interview with a co-worker dated almost 4 months after the arrest. The man stated he hadn't heard from Hardman in months so he went to the house. While visiting the house a neighbor told this man about the raid and the man later looked it up online. Later the man contacted the FBI because Hardman had given him some used hard drives at one time and he wanted to turned those drives in to the FBI. During the conversation this man mentioned that Hardman had once been suspended from work until he completed 3 weeks of anger management classes "because of a situation involving some younger female co-workers". Nothing was found on the old hard drives and the FBI didn't follow-up with the "female co-workers" because workplace drama doesn't relate to the case he was charged with.
In "Hardman - The Rest of The Story" while discussing the testimony at Hardman's sentencing hearing I made the point he didn't take photos. I now know from a late October letter Hardman sent me that he did take some still photographs to use in ads and on the website because they look better than screen captures. It certainly wasn't the "Click, Click, Click" described by the "Special Needs Attorney" witness.
Hardman's most recent letter also helps clarify another point - the matter of the girl portrayed at the sentencing hearing as "H.C.", and represented by the "Special Needs Attorney" who spoke on her behalf. I'm now told that Hardman's lawyer Fritz J. Scheller did know she wasn't an official victim within this investigation, indictment, or plea agreement, but before the hearing had agreed, without consulting Hardman, to withhold any objection. He told Hardman he made that agreement because the lawyer representing "H.C." had threatened to sue Hardman for $100,000 for "emotional harm". I have no idea if that is true (see paragraph below), but if it is, who the fuck cares? Hardman is going to jail for at least 15 years and everything he owned has been forfeited to the government as part of the Plea Agreement. Scheller knows that if "H.C." sued for $100 or $100,000, and won, Hardman wouldn't be able to pay. The lawsuit threat was meaningless, and the damage done by letting that "Special Needs Attorney" ramble on in front of the Judge likely took Hardman's sentence to the upper range.
Also made clear by these new documents, and Hardman's most recent letter written 6 days after his most recent request for an appeal was turned down, is that he lied to me a few times and was less than forthcoming at other times. I understand him being somewhat shy in the details but outright lies are not productive. There is also the possibility that he simple doesn't remember things well as he appears to have had some mental issues. He states was on prescription medications for a couple of years before the arrest and is on similar drugs while in custody.
The issues with Hardman's lawyer doing him a major disservice by not attacking the warrant are 100% reinforced by a plain reading of the affidavit, the warrant, and many of these other documents. The lawyer just plain sucked when it came down to this particular type of case.
I'll end my Hardman news with an apology to all readers. I clearly had a few things wrong as I wrote both April's "The Hardman Report" and October's "Hardman - The Rest of The Story". Some mistakes are due to misinformation from Hardman and some from my own attempts to fill in the blanks. I apologize for both.
November 11th, 2019
Avon, Colorado. USA