Thursday, February 14, 2019

Alabama sheriffs' tendency to steal jail-food funds and boost their own bottom lines can leave inmates with health concerns that last long after they are released


A food tray from the Etowah County (AL) Jail

We invite you to check out the photo above of a food tray from the jail in Etowah County, Alabama. I spent five months -- from Oct. 23, 2013 to March 26, 2014 -- in the Shelby County (AL) Jail, and the tray of food above looks a lot like what we tended to have there.

Since my release, we've seen widespread reports of Alabama sheriffs taking funds intended for inmate food and using them for personal expenses and projects -- such as beach houses, in the case of former Etowah County Sheriff Todd Entrekin, who lost his re-election bid and stepped down last month.

Exposure to Alabama jail food can be dangerous -- both due to its sparse quantity and its dreadful quality. I have reason to worry about the impact it has had on my own health.

As for Todd Entrekin -- the poster boy for Alabama sheriff corruption -- he is not the only one to essentially starve inmates, so that his personal bottom line would benefit. Morgan County District Attorney Scott Anderson recently sued outgoing Sheriff Ana Franklin, alleging she used inmate-food funds to pay her legal expenses from battling corruption charges.

That's not the only food-related scam involving Alabama sheriffs. I have little doubt a normal-sized adult could starve in an Alabama jail; I lost 15-25 pounds in five months -- and not being a picky eater, I usually cleaned my plate, what little was on it. As you can see from the photo above, there wasn't much on it much of the time.

Also, you can check out my mugshot (below, left) from the night I entered the Shelby County Jail and another (bottom) after I spent about a week at the Jefferson County Jail, which was near the end of my overall five-month incarceration. You can see that the fullness in my face is pretty much gone, and my shoulders look shrunken. Do people suffer in jail? Can this kind of weight loss under the extreme stress of false criminal charges affect a person's health down the road?I think the answer is obvious, and something close to starvation is not out of the question.

In order to survive, many inmates while I was in jail would have family put money in an account for the "store" or "commissary" and use that for snacks. The Morgan County Whistleblower blog has reported on this double-dipping scam, and we borrowed from their commentary in a recent Legal Schnauzer post:

. . . as you walk into the doors of the jail you immediately have access to two machines, the first is so you can put money into their account so they can buy items from the jail including food. This seems like a racket to me; first, you don’t feed them adequately and then sell them overpriced food all the while getting rich off leftover jail food money. Next to the first money machine is another money machine to put money into an account so they can use the phones.

We will not address the jail-phone scam for now. But there is an element to the jail-food scam that you likely would only know if you have been in an Alabama jail -- as I have. And it goes beyond quantity of food and isn't even seen on a tray.

Roger Shuler Mugshot No. 1
The choices on an Alabama jail "commissary" list are a nutritional nightmare. While the regular meal trays are filled with food that appears to be extremely starchy, high in carbs and sodium, the "store" list contains almost all junk food. And by junk food, I mean sweets -- as in snack cakes and pies, candy, etc.

Up until the night I was "arrested for blogging," I had been fortunate to enjoy pretty good health -- and so had my wife, Carol. But I'm not so sure that is still the case. Having been exposed to jail food for five months -- not to mention a wrongful foreclosure in Alabama, an unlawful eviction in Missouri (plus the accompanying financial stress), and the emotional strain of watching Missouri cops beat Carol and break her arm, then bring bogus "assault" charges against her, the victim of an assault -- I suspect one or two of my key health numbers are outside the normal range now. I know Carol has at least one key number that no longer is within normal.

Having someone cheated out of his job and health insurance, along with his freedom and the roof over his head, can come with health consequences for the victim and his spouse. That's one of many reasons why it is a stupid thing to do.

If we wind up with a negative health event, or dealing with a chronic, life-altering illness -- all because Alabama political thugs did not like the content of my blog -- someone is going to have hell to pay. There will be major legal liability, and we intend to make sure that dealing with that is going to be painful.


(Note: Legal Schnauzer needs your help. Loyal readers have sustained this blog for years, and support is urgently needed now that my wife, Carol, is recovering from a fainting spell, which led to a recent broken arm. The healing process is going well for Carol, but statements from her doctors indicate this likely was fallout from political thugs cheating both of us out of our jobs [and health insurance] in Birmingham -- and the stress of dealing with financial wreckage that comes from being targeted for right-wing attacks. If you are able to help along our journalism journey, please click on the yellow donate button in the upper right corner of the blog, under the "Support the Schnauzer" headline. We are deeply grateful for your support through the years.)



Roger Shuler Mugshot No. 2

Wednesday, February 13, 2019

Spam, pop-up ads, and viruses can make almost all of us unwitting recipients of child porn -- and innocent targets of federal prosecutors hungry for arrests


Many Americans probably do not think much about child-pornography cases because they figure, "Hey, I'm not a pervert, I'm not going to look at that junk, so why worry about it?" In our postmodern, digital world, suspect images -- often called "contraband by law enforcement -- can appear on electronic devices without our knowledge and without us doing anything to put them there.

Many of us spend major chunks of every day -- at home, work, on the go -- with our eyes glued to desktops, laptops, tablets, mobile phones, you name it. That means you -- even if you show zero signs of being a pervert -- could be caught in a child pornography trap.

Our review of U.S. v. Scott J. Wells, an ongoing federal child-porn case in Missouri, suggests authorities are likely to seek search warrants and arrest warrants -- with federal magistrates granting them in a rubber-stamp fashion -- and they even can seek detention of an accused who hasn't been convicted of anything. Scott Wells has been detained for two years -- in Leavenworth, Kansas (due to his health issues, such as a benign brain tumor) and various county jails in Missouri -- even though charging documents suggest the government likely cannot prove central elements of the offense, as described in statutes and case law. (The complaint and affidavit in Wells is embedded at the end of this post.)

Detained is a soft word for "imprisoned" Imagine being behind bars for two years when you have not been tried or convicted of anything -- and feds consider you a "threat to society," even though you must use a walker or wheelchair to get around.

Scott Wells and his middle-class family are living an American nightmare, but abuse of child-porn laws can hit any of us, especially if we use computers and other electronic devices.

Under federal law -- of which prosecutors and investigators tend to be ignorant or oblivious -- an accused in a child-porn case can be convicted only if he is found (beyond a reasonable doubt) to have acted "knowingly," taking "affirmative actions" to exert "dominion and control" over images that match the statutory definition of child pornography. (For example, images of naked children likely are "child erotica," not child pornography, and generally do not constitute contraband.)

But what if images of child pornography appear on your electronic devices without your knowledge? How can this happen? A 2009 article at Harvard Law Review spells it out. Here is an overview, under the heading (on page 2011) "MEANS OF INNOCENT RECEIPT AND POSSESSION VIA COMPUTER":

The ease of internet communication and the low cost of transmitting electronic files have created new ways for individuals to become unintentional recipients of child pornography, and these means of delivery bear little resemblance to the bricks-and-mortar exchanges that Congress envisioned when drafting the original statute in 1977. There are at least three new ways in which individuals might become unintentional recipients of child pornography in computer-based transactions: through unsolicited “spam” e-mails, pop-up advertisements during legal internet searches, and viruses. Suppose an unintentional recipient acquires illegal material, notices its presence on the computer, and either does not know how to delete it or thinks he need not delete it so long as he does not view it. That recipient may “knowingly” possess the material, yet still be the type of “unwary” recipient that Congress intended to protect by including the knowledge standard in the statute. This Part briefly surveys the mechanics of the internet that have made the possibility of unwitting receipt increasingly salient in cases involving computer-based receipt and possession of child pornography.

Let's take a closer look at each of the three new ways individuals might become unintentional recipients of child pornography. From Harvard Law Review (HLR):

(1) Spam e-mails
Child pornography can easily be transferred among individuals in the form of electronic images sent as e-mail attachments. Although e-mails containing illicit images can be solicited by participating in certain online chat rooms or websites, a person could also receive e-mails that are entirely unsolicited. Once an image is sent, the recipient’s computer may be equipped with software that automatically downloads the e-mail’s contents onto the computer’s hard drive. The user can, of course, choose to delete or retain any e-mails — including illegal spam — that he receives. This feature of e-mail communication suggests that while unintentional receipt may occur, subsequent knowing possession only occurs if a recipient chooses not to delete the file. In the course of evaluating probable cause to conduct a search of a defendant’s computer in United States v. Kelley, Judge Rymer, writing for the court, acknowledged “the possibility that these e-mails could have been spam,” but she ultimately found it unlikely that spammers would distribute the kind of illegal material that Kelley received. Judge Thomas, dissenting in Kelley, disagreed, citing to a string of sources indicating that spam messages can contain illegal child pornography or links to illegal sites. Though federal judges have disagreed about the likelihood that individual defendants came to possess electronic images of child pornography through unsolicited spam e-mails, they have nonetheless recognized that spam is at least a possible source of such images.

(2) Pop-up ads and caches

Personal computer web browsers have a “cache” function in which they store copies of web pages viewed by a user, creating a second way that users might accidentally possess child pornography. Because a computer’s cache has a limited capacity, files are automatically deleted through a “first in, first out” system. As an alternative, users can manually delete files from the computer’s cache or use commercial software to remove the files. Because web browsers automatically save cached files, a person need not take any affirmative step to acquire the files in order for them to be saved to his computer. Typically, because files are saved from websites that a computer user has viewed on his screen, people who possess images of child pornography in their computer cache have also sought out the websites that display the original images. But even accidental viewing of an illegal image can lead to caching, giving rise to the possibility that a person can possess child pornography — even knowingly, having seen the unsought image and realizing that his computer has saved it in the cache — without ever having had any intent or desire to do so. If an individual lacks the technological sophistication to remove files from his cache or to ensure their permanent deletion, he “knowingly possesses” electronic images of child pornography within at least one reading of § 2252(a)(4).

(3) Viruses
A third means of unintentionally acquiring child pornography arises when a computer becomes infected with a virus. United States federal courts have considered this possibility, but they have been slow to find that a virus was responsible for procuring the images on which child pornography charges are based. For example, in United States v. Miller, the court relied on expert testimony to conclude that “a person may come to knowingly possess a computer file without ever knowingly receiving it.” The court articulated one way in which unknowing receipt could lead to knowing possession: “This could happen . . . if the person’s computer is infected with a virus or ‘spyware’ software that surreptitiously installs advertising images. Thus, when a defendant is charged with downloading a computer file, the court must rigorously scrutinize whether there is sufficient evidence to establish the intent-element of the crime.”

Though the Third Circuit ultimately rejected Donald Miller’s claim that a computer virus had automatically downloaded illicit files, at least one plausible account of a virus that did just that has been reported. In 2003, a British man was acquitted of child pornographycharges in Exeter Crown Court “after arguing that the material had been gathered without his knowledge by a rogue program created byhackers — a so-called Trojan horse — that had infected his PC, probably during innocent Internet surfing.” Mark Rasch, a former U.S. federal computer-crime prosecutor, expressed concern over the implications of the British case: “The scary thing is not that the defense might work . . . . The scary thing is that the defense might be right . . . . The nightmare scenario . . . is somebody might go to jail for something he didn’t do because he was set up.” While adequate forensic examination of a suspected individual’s computer should be able to determine whether a virus may have downloaded child pornography, the British case suggests that prosecutorial investigation and discretion in deciding which cases to bring may be imperfect mechanisms — on their own — for ensuring that only truly culpable individuals are charged and convicted in child pornography cases.

Do spam, pop-ups, or viruses account for the contraband allegedly found on Scott Wells' computer? We don't know yet. More importantly, prosecutors don't appear to know, and we see little sign they've even considered the possibility. The information we have so far suggests they simply wanted an arrest, followed by a likely guilty plea, and Scott Wells was a convenient target.


(To be continued)





Tuesday, February 12, 2019

Activist Matt Osborne and his ties to Doug Jones campaign -- plus his actions in Dry Alabama false-flag project -- raise red flags here at Legal Schnauzer


Matt Osborne
About a week after my "arrest for blogging" in 2013, Alabama activist Matt Osborne contacted my wife, Carol, and asked if he could come to our home in Birmingham. Carol gave the OK, and Osborne and a friend named Melissa Brewer showed up at our door with "supplies" (canned goods, cat food, over-the-counter meds, etc.) -- and they took photos and videos of the area in our basement where Shelby County deputies had beaten and abducted me.

I had been online friends with Matt for a while, generally sharing his liberal views and keeping up with his writings at various Web sites -- mostly Osborne Ink and Breitbart Unmasked. I saw him as an important Web-based voice -- a talented, intelligent guy, who was pugnacious enough to do battle with underhanded conservatives, such as the felon poser, and gay-sex troller Ali (Akbar) Alexander and his nutty National Bloggers Club.

For about four years, Carol and I have assumed Osborne came to our home in good faith, from a genuine intention to help at a time of crisis. But I started to have doubts about that when Osborne contacted me in October 2017 -- about six weeks before the Doug Jones-Roy Moore U.S. Senate special election -- and informed me he was connected to the Jones campaign in some capacity, suggesting I should retract a post about a Russian-bot attack on the Moore campaign's Twitter account.

Why did Osborne's ties to Doug Jones alarm me? Well, I've known since spring 2008 that Doug Jones is a shady, ethically challenged guy -- mainly because of his lawyer-tribe ties to despicable Republican thug Rob Riley, the oily son of former Gov. Bob Riley. In fact, I was cheated out of my job at the University of Alabama at Birmingham (UAB), where I had worked for almost 20 years, after I reported on the dubious reasons Rob Riley joined Jones in a lawsuit against HealthSouth -- a story that originated with Sam Stein, of Huffington Post.

For the record, I don't think it's a coincidence that UAB concocted a bogus scheme to fire me -- falsely claiming I was blogging at work, contrary to the words of their own IT expert (Sean Maher) who had examined my work computer activity -- not long after my report on Jones, Riley, and the HealthSouth case. My blogging likely was seen as a threat to Jones and Riley's share of what would become $51 million in legal fees from the HealthSouth case, money that probably helped fund Jones' U.S. Senate campaign in 2017.

I also learned that Jones is a world-class backstabber, with a string of victims that include former Gov. Don Siegelman, late VictoryLand owner Milton McGregor, and Dothan developer Ronnie Gilley. Also, it became clear that Jones was prone to look the other way at the crimes of moneyed elites, such as University of Alabama honcho Paul Bryant Jr., whose company was tied to a massive insurance-fraud case in Pennsylvania.

In short, Doug Jones is a "bastard-coated bastard with bastard filling," and I've come to believe anyone affiliated with him has a shaky moral compass, poor judgment, a strong case of naivete -- or a combination of the three.

Doug Jones
My concerns about Osborne's actions involving Carol and me grew with recent reports that he was a central figure in "Dry Alabama," a disinformation project designed to boost Doug Jones in the Senate race by falsely claiming Roy Moore supported a statewide ban on alcohol -- never mind that it's hard to see how a U.S. senator could provide political muscle on a state issue such as alcohol sales and consumption.

What about specifics that might lead us to have qualms about Matt Osborne? Let's consider:

The "RogerS" scam

Evidence suggests my arrest, at least in part, was driven by a narrative involving a mysterious character called "RogerS." Here's how we explained it in a post dated July 13, 2015:

Members of a right-wing bloggers' club concocted the notion that I was encouraging a federal lawsuit against them, and other conservative figures, and they wrote about it obsessively in the days leading to, and following, my October 2013 arrest.

At the heart of the matter is a commenter at a progressive Web site who goes by the handle "RogerS" and appears to have a fair amount of knowledge about legal matters--in fact, he was encouraging liberal activist Brett Kimberlin to file a federal RICO lawsuit against members of the bloggers club and other individuals on the right. When Kimberlin did, in fact, file a RICO suit, I wound up in jail roughly one week later. Coincidence? That's hard to say, but let's look at what we do know.

In certain corners of the blogosphere, it became popular to suggest that "RogerS" and Roger Shuler (me) were one and the same--even though I had nothing to do with the comments in question, I was not aware of any possible federal lawsuit, and I have no clue about the identity of "RogerS." Still, evidence suggests I might have paid a high price--loss of my freedom for five months and eventual loss of our home-- for something that did not involve me.

As for the National Bloggers Club, it operates under a media umbrella created by the late right-wing publisher and provocateur Andrew Breitbart--and its president, Ali A Akbar, has a criminal history and admitted connections to former Bush White House adviser Karl Rove. Akbar also has a history of trolling for gay sex on adult Web sites.

Where did RogerS originate? We've explained that, too:

"RogerS" apparently made his first appearance in a September 18, 2013, post at the progressive blog Breitbart Unmasked (BU). Interestingly, that was one day after I broke the Bill Pryor gay-porn story. "RogerS" commented about a possible lawsuit that Kimberlin was planning against a number of individuals connected to the Breitbart Network.

Another commenter on the same post replied: "RogerS is one of two very cool people in Alabama . . . Everyone should read his latest: A very "stiff" portrayal of a federal judge." That's the first sign I can find of connections forming between "RogerS," Roger Shuler, and the Bill Pryor story--and it came from a commenter at a liberal Web site.

So, RogerS grew from Breitbart Unmasked, and BU's editor at the time was . . . Matt Osborne. Let's consider a few of the questions that poses:

Ali Akbar on Grindr gay-sex app
(1) Is RogerS even a real person? Could he be a "false flag" that Osborne -- or someone connected to him -- created? After all, "Dry Alabama" proves Osborne has a taste for false-flag operations.

(2) Was RogerS created to antagonize Ali (Akbar) Alexander and his right-wing blogging loons and scare them into having me falsely arrested -- probably with the assistance of the Alabama State Bar?


Matt Osborne's in-home visit while I was in jail

Was Osborne's visit to our house, while I was locked up, an act of good faith, or one with ulterior motives?

Well, we know my arrest, on the surface, was driven by a bogus defamation lawsuit that Rob Riley and his lobbyist "gal pal" Liberty Duke filed against me. We know Rob Riley and Doug Jones have been aligned in the legal tribe for more than 10 years. And we know Matt Osborne has been aligned with Doug Jones at least since 2017.

Could Osborne's alliance with Jones date back to 2013 and beyond? Could Jones, or someone tied to him, have directed Osborne to go to our house as a ruse, designed to assist Rob Riley's arrest scheme -- and perhaps stand up for Bill Pryor's "honor"?

Why would someone want to have access to our house just days after my arrest? I can think of all kinds of reasons, most of them dark and disturbing. I like to think that Matt Osborne would not go along with such a scheme, but we now know he engaged in deceptive election practices on Doug Jones' behalf, so what would keep Osborne from entering our home under false pretenses -- designed to assist Doug Jones and his lawyer pal, Rob Riley, perhaps in their shared desire to abuse the reporter who outed Bill Pryor as a closeted gay? By the way, Jones long has professed his undying respect for Pryor.

Matt Osborne has proven he engaged in dishonest activities that deceived Alabama voters -- a false-flag scheme to benefit Doug Jones. I see no reason why he would not engage in a false flag directed at Carol and me.

Monday, February 11, 2019

It is not unlawful to have child pornography on a computer; feds must prove accused took "affirmative actions" to place it under "dominion and control"


Is it unlawful to have child pornography on your computer? No, it isn't. In federal cases, such as the Scott J. Wells matter in Missouri, the government must prove the accused "knowingly" received, possessed, or distributed images that match the legal description of child pornography.

We can find little or no evidence in the feds' complaint/affidavit against Wells (embedded at the end of this post) to suggest he acted with knowing intent. In fact, the complaint against Wells is so weak on this point that probable cause for his arrest, two-year detention, and a search of his home probably does not exist. U.S. Magistrate David P. Rush allowed the government to essentially, bully, intimidate, and kidnap Wells, which becomes less surprising when you learn of Rush's pro-prosecution background. (More on that in an upcoming post.)

All of this makes court-appointed lawyer Shane Cantin's claims that he could think of no defenses for Wells pure horse excrement. In fact, it suggests Cantin's letter encouraging Wells to plead guilty because he had no hope of an acquittal should be sent to the Missouri bar for review. It also suggests federal authorities should investigate the circumstances around the letter for signs of possible conspiracy and obstruction of justice, which could send one or more individuals to prison.

Cantin's letter (embedded at the end of this post) is galling because Wells has so MANY defenses. And they start with this: Case law holds that the government, to prove the "knowing" element, must show that an accused took  "affirmative actions" to obtain images of child pornography -- to have them "under dominion and control." From a 2009 article at Harvard Law Review:

Juries and reviewing courts often treat affirmative actions aimed at obtaining or preserving child pornography as compelling evidence of knowing receipt and subsequent possession. In United States v. Stulock, for example, the defendant was acquitted on a knowing possession charge that was based on images saved in the defendant’s browser cache. The circuit court noted the district court’s explanation “that one cannot be guilty of possession for simply having viewed an image on a web site . . . without having purposely saved or downloaded the image.” Similarly, in United States v. Riccardi, the government presented testimony that the defendant had received several pornographic images — including some depicting minors — in a “zip file” that he later unzipped and saved on his hard drive. Government testimony suggested that Riccardi had created the directory in which the images were saved and that Riccardi would have had to direct the images to that directory. The court concluded that these actions constituted “affirmative steps to preserve the child pornography on his computer,” which was indicative of knowing possession.

Let's take a closer look at U.S. v. Stulock, 308 F. 3d 922 (8th Circuit, 2002), which is from the federal circuit that includes Missouri, Arkansas, Iowa, Nebraska, Minnesota, South Dakota, and North Dakota. Here are the central facts of the case:

In 1999, federal and state law enforcement officers raided a company engaged in distributing child pornography on the internet. Using a list of customer names and email addresses recovered from that company, the agents emailed offers to sell pornographic materials to Stulock and many other individuals included in the list. Stulock responded to the offer with a request for a list of materials containing "mostly girls, age 7-14, hardcore." After receiving a list of videos, Stulock mailed a personal check in payment for a videotape entitled "No Way," described as "Daddy fucks 10 year old daughter." Federal agents made a controlled delivery of the tape and shortly thereafter executed a search warrant. During the search of Stulock's home, the agents found the tape hidden in a bedroom closet and seized a personal computer.

Examination of Stulock's computer revealed evidence of his involvement with child pornography. Numerous images of children younger than 18 engaged in sexual acts were recovered from several locations on the computer. In addition, the web browser history indicated that Stulock had visited several web sites having names associated with child pornography, including www.hairless-lolita.com, www.preteenlinks.com, www.littlepussy.com, www.peachfuz.com, and www.lolitahardcore.com.

In Stulock, the court had to wrestle with technical issues that often are present in child-porn cases:

The agent who examined the computer explained to the district court that when a computer file is deleted, the contents of the file are not irretrievably lost. The space occupied by the file is flagged as available, and until new data is stored in that location the deleted file can be recovered using an undelete tool. In addition to the contents of the file, information about when the file was created, last modified, and last accessed can be recovered. Thousands of previously deleted files were recovered from the temp directory on Stulock's primary hard disk and from a secondary hard disk designated by the computer as the F drive. The temp directory is where a program such as an image viewer or a word processor will store a duplicate of a file that is opened for use. Any changes are made to the copy and only applied to the original when the user saves the file. The copy in the temp directory is deleted when the user closes the file. More than 3,000 deleted files were recovered from the temp directory, including numerous examples of child pornography. Stulock's computer was configured to use the temp directory as the location where downloaded files that had been packaged in the ZIP file format would be stored. A ZIP file can contain hundreds of images or other files, thus allowing a user to download many files without having to save each one individually. Thus, the presence of an image in the temp directory indicated that Stulock had either purposely downloaded the image in a ZIP file or had opened an image stored elsewhere on the disk using a viewer that created a temporary copy. Among the deleted files recovered from the F drive were three identified as portraying a minor female in bondage. Three images were located in the internet browser cache. The browser cache contains images automatically stored by the computer when a web site is visited so that upon future visits the images need not be downloaded again, thereby improving the response time. Unlike the other files recovered, the images in the browser cache had not been deleted and then recovered.

Stulock was charged with knowingly receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2) and knowingly possessing child pornography in violation of § 2252A(a)(5)(B). After a bench trial, Stulock was convicted of knowingly receiving the child pornography videotape, but he was acquitted on the charge of knowingly possessing child pornography. 

Stulock involved substantial evidence of the accused "knowingly" receiving child pornography, and the circuit court upheld his conviction on that count. The district court had acquitted Stulock on the possession charge, finding that he did not act knowingly. The circuit court agreed, and its reasoning is instructive for U.S. v. Wells and similar cases:

The possession charge specified only the images found in the browser cache. The district court explained that one cannot be guilty of possession for simply having viewed an image on a web site, thereby causing the image to be automatically stored in the browser's cache, without having purposely saved or downloaded the image.

The circuit court upheld the trial court's judgment -- finding Stulock guilty on the receiving count and not guilty on the possession charge. What were the two grounds for acquittal on the possession charge? Here they are again, from the highlighted passage above:

(1) An accused "cannot be guilty of possession for simply having viewed an image on a web site, thereby causing the image to be automatically stored in the browser's cache . . ."

(2) For a guilty finding, the government must prove the accused "purposely saved or downloaded the image."

Can the government prove Scott Wells purposely saved or downloaded anything? From our review of the complaint/affidavit, I don't see how. In fact, I don't see probable cause for bringing charges against Wells at all.


(To be continued)








Thursday, February 7, 2019

Shane Cantin, the Missouri lawyer who told his client that he had no defense and would be convicted on child-porn charges, is removed from Scott Wells case


Shane Cantin
Shane Cantin, the Missouri lawyer who told his client via a letter that he had no defense and would be convicted of federal child-pornography charges, was removed from the case yesterday.

The ruling from U.S. Magistrate David P. Rush came after Cantin filed a Motion to Withdraw on Monday (2/4), and defendant Scott J. Wells filed a pro se Motion to Vacate Counsel -- including a copy of Cantin's letter -- on Tuesday. (The Cantin letter is embedded at the end of this post; Cantin filed his withdrawal motion on the same day I reported about his letter to Wells.)

Rush, during a hearing at the federal courthouse in Springfield, clearly was displeased by the turn of events and asked Wells a series of pointed questions about why he wanted Cantin off the case -- as if being told your own lawyer was convinced of your guilt and had no real plans to defend you wasn't enough. Wells pointed out that Cantin had done nothing to have him released from detention, where he has been for almost two years, without being convicted of anything; that Cantin had not taken any depositions, and had not lined up any expert or character witnesses.

Prosecutor James J. Kelleher,  in what probably sounds like an absurdity to most normal humans, is seeking to have complaining witnesses from an earlier child sexual abuse case he brought in state court against Wells -- that's the one where my brother, David Shuler, provided ineffective assistance of counsel, and a conviction was overturned when one witness was found to have lied under oath about scars on Wells' penis.

Kelleher has filed the motion under Federal Rule of Evidence 414, and if granted, it would mean Wells could be convicted based on allegations with which he is not charged now -- and for which his earlier conviction was overturned. A number of legal scholars and commentators have written scathing reviews of Rule 414, including this article for the Alabama Law Review. An article in the William and Mary Bill of Rights Journal calls Rule 414 "fundamentally unfair," violating the Due Process Clause of the U.S. Constitution.

For those interested in a scientific response to the dubious politics that led to Rule 414, we strongly recommend "Empirical Fallacies of Evidence Law: A Critical Look at the Admission of Prior Sex Crimes," from the University of Cincinnati Law Review.

An in-depth look at the problems with Rule 414 is an issue for another day. But for now, we can say that Cantin did file a Motion to Preclude the Government from Using 414 Evidence. But other than that, and his Motion to Withdraw, the record shows Cantin has done pretty much nothing on U.S. v. Wells. God only knows how much he will charge taxpayers for his "services."

In a moment that almost made this reporter guffaw, Judge Rush said he felt Cantin had "vigorously represented" Wells -- and that the case clearly did not amount to "ineffective assistance of counsel."

On the first point, a check of the court docket and Cantin's own letter show Rush's assessment is way off target. On the second point, I agree with Rush. Cantin's work on Wells' behalf would have to improve to reach the "ineffective assistance of counsel" level. It could more accurately be deemed "no assistance of counsel."

Rush did not say who he would appoint as Wells' new lawyer and gave no clue when that decision might be forthcoming. It appears the current trial date of Feb. 12 will have to be changed.





Wednesday, February 6, 2019

Porn star Traci Lords helped forge a path to the United States Supreme Court, which should lead to justice for Scott J. Wells in Missouri child-pornography case


Traci Lords is one of the most famous actors in the history of adult films -- right up there with Linda Lovelace, Harry Reems, Ron Jeremy, Christy Canyon, John Holmes, and other luminaries. Lords' fame, to a great extent, grew from a court case. In a roundabout way, she helps prove that Missouri resident Scott J. Wells is innocent of federal child-pornography charges against him -- and he never should have been arrested or detained. Wells faces a trial in the Western District or Missouri, currently set for Feb. 12.

The U.S. Supreme Court (SCOTUS) found in a case styled United States v. X-Citement Video Inc., 513 U.S. 64 (1994) that the accused in a child-porn case cannot be found guilty unless the government proves he knew an individual in a suspect image was a minor (under 18 years of age). The feds' own documents in the Missouri case show Wells did not know the female depicted in a image sent to him via Facebook -- without him asking for it or knowing of its contents -- was a minor. (The criminal complaint and affidavit in U.S. v. Wells is embedded at the end of this post.)

Prior to X-Citement Video, the accused in a child-porn case could be convicted if he "knowingly received, possessed, or distributed a visual depiction of a minor engaging in sexually explicit conduct;" The term "knowingly" had been found to modify only the verbs "receiving," "distributing," etc. SCOTUS found in X-Citement Video that "knowingly" also modifies the word "minor." In other words, the accused now must know the image depicts a minor in order to be convicted.

Here is the court's central finding in X-Citement Video:

The Protection of Children Against Sexual Exploitation Act of 1977, as amended, prohibits the interstate transportation, shipping, receipt, distribution, or reproduction of visual depictions of minors engaged in sexually explicit conduct. 18 U. S. C. § 2252. The Court of Appeals for the Ninth Circuit reversed the conviction of respondents for violation of this Act. It held that the Act did not require that the defendant know that one of the performers was a minor, and that it was therefore facially unconstitutional. We conclude that the Act is properly read to include such a requirement. . . .

For all of the foregoing reasons, we conclude that the term "knowingly" in § 2252 extends both to the sexually explicit nature of the material and to the age of the performers.

That's a fancy way to say that Scott Wells (and others charged under Sec. 2252) cannot be convicted unless he knew the female in the Facebook photo was under age 18. And the following segment from the feds' affidavit shows he did not:

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.

Is there anything in the affidavit to suggest the feds can prove the girl was not 19, that she was under age 18? More specifically, can they prove Wells had no reason to believe she was 19. I don't see it.  That means, in essence, that the feds have no case -- that Wells never should have been charged or detained for two years, with his home searched -- producing evidence that likely should be suppressed as obtained contrary to the Fourth Amendment. Will Wells' court-appointed attorney, Shane Cantin of Springfield, pursue such defenses? We have asked via email, but Cantin has not responded. He has told Wells in writing that there are no defenses to the charges against him.

How does Traci Lords enter the picture? Well, she was at the heart of the X-Citement Video case. From the SCOTUS opinion, written by William Rehnquist (citations omitted):

Rubin Gottesman owned and operated X-Citement Video, Inc. Undercover police posed as pornography retailers and targeted X-Citement Video for investigation. During the course of the sting operation, the media exposed Traci Lords for her roles in pornographic films while under the age of 18. Police Officer Steven Takeshita expressed an interest in obtaining Traci Lords tapes. Gottesman complied, selling Takeshita 49 videotapes featuring Lords before her 18th birthday. Two months later, Gottesman shipped eight tapes of the underage Traci Lords to Takeshita in Hawaii.

These two transactions formed the basis for a federal indictment under the child pornography statute. The indictment charged respondents with one count each of violating 18 U. S. C. §§ 2252(a)(1) and (a)(2), along with one count of conspiracy to do the same under 18 U. S. C. § 371. Evidence at trial suggested that Gottesman had full awareness of Lords' underage performances. . . . ("Defendants knew that Traci Lords was underage when she made the films defendant's [sic] transported or shipped in interstate commerce"). The District Court convicted respondents of all three counts. On appeal, Gottesman argued, inter alia, that the Act was facially unconstitutional because it lacked a necessary scienter requirement and was unconstitutional as applied because the tapes at issue were not child pornography. The Ninth Circuit remanded to the District Court for reconsideration in light of United States v. Thomas, 893 F. 2d 1066 (CA9), cert. denied, 498 U. S. 826 (1990). In that case, the Ninth Circuit had held § 2252 did not contain a scienter requirement, but had not reached the constitutional questions. On remand, the District Court refused to set aside the judgment of conviction.

On appeal for the second time, Gottesman reiterated his constitutional arguments. This time, the court reached the merits of his claims and, by a divided vote, found § 2252 facially unconstitutional. The court first held that 18 U. S. C. § 2256 met constitutional standards in setting the age of majority at age 18, substituting lascivious for lewd, and prohibiting actual or simulated bestiality and sadistic or masochistic abuse. . . . It then discussed § 2252, noting it was bound by its conclusion in Thomas to construe the Act as lacking a scienter requirement for the age of minority. The court concluded that case law from this Court required that the defendant must have knowledge at least of the nature and character of the materials. . . .  The court extended these cases to hold that the First Amendment requires that the defendant possess knowledge of the particular fact that one performer had not reached the age of majority at the time the visual depiction was produced. . . . Because the court found the statute did not require such a showing, it reversed respondents' convictions. We granted certiorari . . . and now reverse.

That, in a deluge of legalese, is how a twisting and turning case involving Traci Lords wound up at the nation's highest court. If a federal judge in Missouri can properly apply the law -- and that's a big if -- Scott Wells should receive some measure of justice. The charges against Wells should be dismissed, but it's unlikely prosecutor James J. Kelleher possesses the ethical infrastructure to make such a request.

Perhaps a judge will make the decision for him, especially if Wells winds up with a real defense attorney. 

Tuesday, February 5, 2019

Child-porn laws require that an image depict a "minor" in "sexually explicit conduct," but feds seem to be guessing at subjects' ages in the Scott J. Wells case?


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)



Monday, February 4, 2019

Court-appointed lawyer Shane Cantin falsely says Scott J. Wells has no defense to federal child-porn charges and is destined to be convicted by a rogue prosecutor


Shane Cantin
The court-appointed lawyer for a Missouri man facing dubious child-pornography charges has stated in writing that he has no defense and "you will be convicted" Why is Shane P. Cantin, of the Springfield firm Carver Cantin and Mynarich, still on a case where he has admitted he has nothing to offer his client? If you were that client, Scott J. Wells, how would you like to hear from your lawyer that he can't think of a way to defend you?

Ironically, I don't have the first day of law school, and I can think of at least a half dozen ways to defend Scott Wells. But Shane Cantin, who touts his 25-plus years of experience on the firm Web site, can't think of anything?

Let's check out Cantin's letter, which is dated Nov. 26, 2018, and was sent to Wells at the Leavenworth Detention Center in Kansas. Wells currently is held at the Greene County (MO) Jail, with a tentative trial date set for later this month. (The full Cantin letter, in two parts, and the criminal complaint against Scott Wells are embedded at the end of this post.):

Dear Scott: 
. . . If the government is allowed to present testimony as outlined in the discovery file, you will be convicted as charged.

Notice the reference to the "discovery file." That's the evidence the feds supposedly have gathered against Wells, but at last report, he has no idea what is in it. That's because Cantin apparently has not gone over it with him, even though Wells has a Sixth Amendment right to review it. I understand that Wells has been told he cannot review the evidence because it includes images that allegedly constitute child pornography. The actual law on this is found at 18 U.S.C. 3509(m)(2):

(A) . . . a court shall deny, in any criminal proceeding, any request by the defendant to copy, photograph, duplicate, or otherwise reproduce any property or material that constitutes child pornography (as defined by section 2256 of this title), so long as the Government makes the property or material reasonably available to the defendant.

(B) . . . property or material shall be deemed to be reasonably available to the defendant if the Government provides ample opportunity for inspection, viewing, and examination at a Government facility of the property or material by the defendant, his or her attorney, and any individual the defendant may seek to qualify to furnish expert testimony at trial.

Bottom line: Wells may not reproduce the child-porn evidence, but he has an absolute right to review it, along with his attorney and any expert witness the defense intends to call -- although Cantin apparently has not bothered to line up such a witness. Let's return to the contents of Cantin's letter:

I see no viable defense to these charges. Further, because you proffered to federal agents with your prior counsel (federal public defender David Mercer), your admissions made during the proffer will be used to impeach you, should you testify at trial that you did not knowingly obtain an image of child pornography from the internet.

Admissions? Of what? The court record indicates Wells received an image via Facebook from a woman in Tennessee. He apparently did not ask for it and did not know what it was when he clicked on it. When Wells saw the content of the photo, he thought it was an image of the woman's daughter, whom he believed to be 19 years old (according to Wells' statement to officers). Wells' best course of action probably would have been to report the matter to authorities, but he chose to send the image to the daughter, hoping to provide an alert that the mother was using her image in an unlawful way. None of this constitutes a crime on Scott Wells' part, so it's not clear Cantin has familiarized himself with the bare essentials in the criminal complaint. Let's return to the letter:

The government computer forensic expert will testify that the images found on your device did not come to that device by means of "pop-ups," nor were they saved in a location on your hard drive that would suggest otherwise. Further, the internet search history is consistent with a user seeking out images of child pornography. This is consistent with the forensic expert at the Federal Defender's Office who also examined the device. You will not overcome this evidence at trial, and you will be convicted. 

Actually, the government's forensic evidence gives no clue in the criminal complaint where the images came from. We certainly see no evidence that Scott Wells took affirmative steps to put them there and exert control over them.

The government was able to review Wells' device because they used the Facebook image to get a search warrant from U.S. Magistrate David "Rubber Stamp" Rush. But there is nothing in the criminal complaint to suggest Wells took "affirmative actions" to obtain the Facebook image, and there is no proof it is of a minor, anyway. That means it's quite likely there was no probable cause for a search of Wells' home, and any evidence obtained there should be suppressed as obtained via violations of the Fourth Amendment. I asked Cantin via email if he intended to file a motion to suppress, and he has not responded -- to that or any other questions.

Scott J. Wells
Wells' search history is mostly related to topics such as "Family Nudists" and "Family Nudist Camps." The Web, of course, is filled with images of naked people, of virtually all ages, and those do not necessarily constitute child pornography. Neither do images that feds refer to as "child erotica." Here is a definition from 18 U.S. Code 2256:

“child pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where— (A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; (B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

Mere nudity or erotica, even of a minor, does not constitute child pornography. The image must involve an "identifiable" minor "engaging in sexually explicit conduct. That is defined under Sec. 2256 as follows:

“sexually explicit conduct” means—

(i) graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited;

(ii) graphic or lascivious simulated;

(I) bestiality;

(II) masturbation; or

(III) sadistic or masochistic abuse; or

(iii) graphic or simulated lascivious exhibition of the anus, genitals, or pubic area of any person;

Scott Wells has voiced concern that this federal case is being prosecuted by the same guy (James J. Kelleher) who saw his child sexual abuse charges against Wells fall apart in a state case when a complaining witness was found to have lied under oath about scars on Wells' penis. Here's how Cantin addresses that concern:

The fact that Jim Kelleher is prosecuting this case does nothing for your defense, and I am confident that the judge will not allow us to talk about that fact at trial.

Meanwhile, Kelleher reportedly plans to call the complaining witnesses from the earlier state case -- even though Wells' conviction was overturned and at least one of the witnesses was found to have lied under oath. Other complaining witnesses presented wildly inconsistent testimony, which his defense attorney at the time (my brother, David Shuler) failed to adequately pursue, resulting in a baseless conviction against Wells and a finding of ineffective assistance of counsel against Shuler. That suggests Wells could be convicted based on alleged conduct that is not even charged in the current case and for which his conviction was overturned in the first case.

In our review of the court file, we can find no proof that Scott Wells knowingly received or distributed any image that would constitute child pornography, and we see no proof that the images even involve "identifiable minors." Here is the parting shot from Shane Cantin, the lawyer who can't figure out a defense for his client:

As outlined by your prior attorney, and during our discussions, you will receive a substantially longer sentence if convicted after a trial, and a potentially shorter sentence following a guilty plea and acceptance of responsibility. I know this is not what you want to hear, but it is my obligation to give you my legal opinions based upon my review of your file and experience in federal court. 

Gee, does that sound like Cantin is trying to scare Wells into pleading guilty -- even though Kelleher stated at a recent pre-trial hearing that no such plea offer is on the table? If the government's case is so strong, why is Cantin trying to intimidate Wells into a guilty plea? As for Cantin's obligations, what about the one where he is obliged to defend his client? It appears he has no intention of doing that.


(To be continued)