Our dysfunctional justice system has taken Scott J. Wells' freedom for roughly two years on child-porn charges that have no grounding in probable cause

Scott J. Wells

How has Missouri resident Scott J. Wells been detained for almost two years on child-pornography charges that, court documents show, are not supported by probable cause? It's a blatant violation of the Fourth Amendment to the U.S. Constitution and should never happen in a semi-functional democracy. But when you have a U.S. magistrate (David P. Rush) who apparently approves anything prosecutors put before him, a federal prosecutor (James J. Kelleher) who seems to have a chip on his shoulder because Wells beat him once before on flimsy state charges, and court-appointed lawyers (public defender David Mercer and private attorney Shane Cantin) who have made little or no effort to defend their client . . . rights of the accused get trampled.

How do we know probable cause is lacking in U.S. v. Wells? Well, the case file is public record, and anyone with reasonable reading ability can come away suspecting probable cause is iffy. My conclusion is that probable cause is nonexistent -- meaning Scott Wells' arrest, a search of his home, and his detention at Leavenworth, Kansas, and various Missouri county jails are unconstitutional. (The criminal complaint in U.S. v. Wells is embedded at the end of this post.)

Probable cause is one of those amorphous legal concepts where you could ask 10 knowledgeable people to define it and get 10 different answers. Here is the gist: If a law-enforcement officer has reasonable suspicion that a crime has been committed,and the accused committed it, he can go before a judge to seek a finding of probable cause. If the judge agrees that probable cause exists, the accused can be arrested, have his property searched, and (in child-porn cases) even be detained without being convicted of anything.

Federal child-pornography statutes are unusual in that they essentially hinge on one word -- "knowingly." A person's computer can be overflowing with child-porn images, but that is only a crime if he took "affirmative actions" to receive it, possess it, control it, or distribute it. Without the "knowing" element, there is no crime, no matter how many disturbing images agents might find on your computer. Let's look at the key language under 18 U.S. Code 2252(a)(2) and (b)(1):

(a) Any person who — (2) knowingly receives, or distributes, any visual depiction using any means or facility of interstate or foreign commerce or that has been mailed, or has been shipped or transported in or affecting interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or through the mails, if— (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct;

You see that key word right there in the first sentence. Scott Wells is charged with receiving and distributing child pornography, but he must do it "knowingly"; otherwise, there is no crime. And there can be no probable cause without at least some evidence -- even a suggestion -- that Scott Wells acted knowingly. But the charging document in U.S. v. Wells utterly fails on that front.

U.S. Magistrate David P. Rush

James D. Holdman Jr., who describes himself as a "Special Agent (SA) with United States Immigration and Customs Enforcement (ICE), Office of Homeland Security Investigations (HSI), in Springfield, Missouri," prepared the affidavit on which Scott Wells' arrest is based. Holdman says he has been employed with ICE/HSI since January 1989, including duties as a deputy sheriff in Washington County, Missouri, and a criminal investigator for the State of Missouri. As part of his duties with ICE/HSI, Holdman says, "This affiant investigates criminal violations relating to child exploitation, child pornography, human trafficking, and coercion and enticement.

Let's consider some of the relevant language from the Holdman affidavit, under the heading "Probable Cause," beginning on page 3:

7. On March 8, 2017, Southwest Missouri Cyber Crimes Task Force (SMCCTF) Officer (TFO) Lee Walker reviewed two CyberTips, 16533`142 and 16099575, from the National Center for Missing and Exploited Children (NCMEC). Both CyberTips were initiated by Facebook. . . .  

8. CyberTip 16533142 was initiated by Facebook, after a file . . . containing suspected child pornography had been uploaded from a Facebook account. The suspect file was uploaded from a Facebook account with a screen name of scott.wells.79 and user ID 11033732066. The account listed a verified email address of scottw3820@yahoo.com. The suspect file was uploaded on December 15, 2016, at 15:18:55 hours UTC, using IP address 173.19.198.141. This affiant reviewed the image from CyberTip 16533145. 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.

This section raises two important issues:

(A) Holdman multiple times says Wells "uploaded" the suspect image from his own Facebook account. I don't claim to be an expert on computer terminology, but I'm pretty sure there is a difference between an "upload" and a "download." Here is how one Web site puts it:

Uploading is the process of putting web pages, images and files onto a web server. Downloading is the process of getting web pages, images and files from a web server.

To make a file visible to everyone on the internet, you will need to upload it. When users are copying this file to their computer, they are downloading it.

In other words, when an image originates with a user and is placed on the Web, it is uploaded. When an image already is on the Web and someone clicks on it, perhaps saving it, that is a download. Scott Wells has said he received a Facebook file from a woman in Tennessee and clicked on it without knowing what it was and without asking for it. When he saw the image, he thought it was the woman's daughter, that the mother essentially was enticing Facebook users with pornographic images of her own child. Wells has said he forwarded the image to the daughter in an effort to alert her about the mother's unlawful acts. Federal prosecutors now claim this act of alerting a victim amounts to distribution of child porn.

The evidence we have now suggests Scott Wells downloaded the image, and the woman in Tennessee uploaded it. We are pretty sure Special Agent Holdman, who claims to be highly trained on matters of child porn, has his terms mixed up. If that's the case, it makes you wonder what else is mixed up in his affidavit.

(B) Nothing in the section even hints that Scott Wells acted "knowingly," so based on this material, there is no crime.

What about the rest of the affidavit? We will look at that in upcoming posts.


(To be continued)