Scott J. Wells
How many defenses does Scott J. Wells have to federal child-pornography charges? His lawyer, Shane P. Cantin of Springfield, MO, says in writing that he can't think of any. Without a single day of law school, I can think of about a half dozen -- under two or three broad categories.
Let's start with perhaps the most important category in this area of law -- age. Under 18 U.S.C. 2256, an image can be child pornography only if it is a "visual depiction" of a "minor" who is "engaged in sexually explicit conduct." Details on alleged crimes involving child pornography can be found at 18 U.S.C. 2252A.
But the No. 1 element, per Sec. 2256, is that the image must depict a "minor," which is described as "any person under the age of 18 years." Under U.S. law, you can view an image of stomach-churning pornography to your heart's content -- if it depicts an 18-year-old. If it depicts someone who is age 17 years, 11 months, and 28 days, you could land in the federal slammer for 20 years or more.
How tricky can this get? Let's consider two age-related elements in the federal statutes:
(1) Must prosecutors present evidence of name, address, and birth date in order to prove "beyond a reasonable doubt" that a person depicted is a minor? A reasonable person might conclude the answer is yes, given the fundamental importance of age in this area of the law. But our research indicates prosecutors, in the real world, do not have to prove age with particularity -- or, with certain judges, they can get away with guessing at it, obtaining arrest and search warrants by more or less stating, "This person looks like a minor to me." Scott Wells has been detained at Leavenworth, KS, or Missouri county jails for roughly two years, and yet, the criminal complaint offers zero proof that he ever knowingly received or distributed an image of someone under 18 years of age.
(2) After age, the second most important element in these offenses involves the term "knowingly" -- and the two elements can merge. It is not a crime to accidentally stumble upon child pornography. It also is not a crime to have child pornography on your computer, without signs that you took "affirmative actions" to obtain and control it. Both go to whether the accused acted with "knowing" intent -- and the affidavit against Scott Wells provides little or no evidence of such conduct. [The criminal complaint, including an affidavit from a Homeland Security special agent, is embedded at the end of this post.] On top of that, federal law requires that an accused "know" an image depicts a minor. We will provide details on the relevant law in an upcoming post, but for now, let's consider this mind-blowing fact: The Wells complaint contains evidence that he did NOT know a subject was a minor -- and feds apparently can't prove otherwise -- but he still has been detained for two years and faces a trial this month.
U.S. Magistrate David P. Rush
Where does age appear in the complaint against Scott Wells? The first reference comes on page 4 of the affidavit from Homeland Security Special Agent James D. Holdman. The testimony involves a CyberTip from Facebook, where Holdman alleges Wells "uploaded' a suspect file from his Facebook account. [We are pretty sure use of the term "upload" is a mistake. That implies the image originated with Wells, and he put it on the Web. All other evidence we've seen suggests the image originated with a Tennessee woman named Kara Adkins, and Wells downloaded it after she sent it -- without him asking for it or knowing what it was.] Is it scary that a federal "expert" on child pornography might not know the difference between an upload and a download? It sure is.From the Holdman affidavit:
This affiant reviewed the image from CyberTip 16533142. The image depicts a minor, prepubescent female lying on what appears to be a bed with her pants pulled down, her legs spread and up in the air, exposing her vaginal and anal area. The minor female's hands are on her bottom.
How does Holdman know the female is a "minor" and "prepubescent"? Is he an expert on human development? He doesn't say. I've seen an affidavit from another pending child-porn case in the Western District of Missouri where the affiant declares a female is "prepubescent" based on "body shape" and "the absence of pubic hair." Body shape can determine whether someone is 16 or 18? These federal experts aren't aware that folks of all ages and genders can shave "down there," accounting for a lack of pubic hair?
Is our "justice system" warped? Holdman appears to be guessing that the female is "prepubescent," but prosecutors used this information to get arrest and search warrants from U.S. Magistrate David P Rush (Western District of Missouri). During a search of Wells' home, which almost certainly was unlawful under the Fourth Amendment, agents seized Wells' laptop computer, along with a number of other items -- some of which belonged to other family members.
Michael Costello, a computer forensic analyst (CFA) with the Springfield Police Department, conducted a review of Scott Wells' laptop, and that's where age again enters the picture. From Holdman's affidavit:
On March 23, 2017, CFA Costello began his examination of Wells' Dell Inspiron Laptop. This laptop had Windows 10 Home installed, and the only user account was "scott." [Does that mean Scott Wells was the only one to use the computer? Not necessarily. Family members say he generally signed in to it and left it running, so that any number of people could access it.] CFA Costello found 60 images of child pornography, that being children under the age of 18 engaged in sexually explicit conduct.
How did Costello know the "children" were "under the age of 18"? He doesn't say, and he provides no birth dates or identifying characteristics, and like Holdman, he appears to be guessing.
Under federal law, Costello and Holdman do not have the final say. Scott Wells' thoughts regarding age also matter, and this is from page 7 of the affidavit:
Wells admitted to communicating with another user with the Facebook account name of Kara Adkins, but claimed he never sent the user any images. Wells then stated that he quit communicating with Adkins because she sent him an image of a 19-year-old showing her butt.
Did Kara Adkins, who apparently lives in Tennessee and is the mother of the girl in the Facebook image, tell Wells that her daughter was 19? That remains unclear, but it is clear that Wells thought the girl was not a minor. And that matters, a lot, under the law. The U.S. Supreme Court says so.
(To be continued)
