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)



9 comments:

Anonymous said...

Wells admitted he knowingly sent the image to the daughter. I agree you can't prove that he knowingly received the image, unless the conversation before the picture indicates otherwise. Wells apparently commented the picture was of a girls but. He down played the pictures content. Seems kind of odd if nothing was wrong with wyat he did. He claims he thought she was 19. If you accept that as a defense, then there's a lot of rape convictions you will have to throw out too. He knowingly sent the picture, it doesn't matter if he was a bad guesser of age. If she's under 18, he's guilty.

My biggest concern is did the person that sent the picture get arrested too.

Anonymous said...

I don't see how any of these cases can be proven beyond a reasonable doubt where the subject could be 14 or could be 18. With toddlers, the age should be obvious.

legalschnauzer said...

Under SCOTUS precedent, Wells had to know the girl in the FB picture was a minor, and the statement in the affidavit indicates he did not -- and I see no sign the feds can prove otherwise. I have a post on that subject coming later today.

We don't have a transcript of what Wells said re: the photo's contents, so I don't see that he was downplaying anything. He was just stating what he recalled about the picture, and it did show her butt -- even the feds admit that.

It doesn't matter whether Wells thought he might have done something wrong; he almost certainly didn't know the law, and that's the issue here: Did he knowingly violate the law? The answer, in my view, is no. I don't even sven see probable cause to justify a search or arrest.

Don't get your point about rape cases, unless you are talking about statutory rape. But age is not a factor in many rape cases. Rape generally is a state crime, so definitions might vary from state to state. Depending on the language, it's quite possible some statutory rape convictions should be overturned. You are equating rape law (state) to child-porn law (both state and federal), and I'm not sure there is a strong correlation.

Anonymous said...

Sounds like some politicians wrote some pretty crappy law so they could be identified as "protecting our children."If they really want to protect our children, go after the people who create child porn.

Anonymous said...

How many real crimes are going undetected because law enforcement is trying to catch some guy with child porn on his computer -- and he might not even know it's there?

Anonymous said...

These experts think a female is prepubescent if she doesn't have pubic hair? You must be kidding. I hear nobody has pubic hair in women's locker rooms anymore.

Anonymous said...

Why on earth is Homeland Security involved in this case? Shouldn't they be building Trump's wall.

legalschnauzer said...

@4:43 --

I can take a stab at answering your question. I think Homeland Security might be involved in the Scott Wells case because the image he received via Facebook came from a woman named Kara Adkins, who I believe is in deep doo-doo over child porn in the Middle District of Tennessee (Nashville). I'm still researching this, but it appears Kara Adkins is from Clarksville, TN, and she and her husband, it seems, have been doing some pretty strange things with their kids. Here is a criminal complaint from FBI re: Adkins case. I plan to have a 1 or more posts on this angle of the Scott Wells story:


https://www.scribd.com/document/373311537/USA-v-Adkins-tnmdce-17-04231-0001-0-pdf

legalschnauzer said...

Some pretty disturbing stuff from FBI affidavit for arrest of Kara Adkins and her husband, Robert, who was stationed with military in Korea:


On February 7, 2017, the National Center for Missing and Exploited Children (NCMEC)
sent CyberTip #16888528 to the Montgomery County Sheriff's Office (MCSO) in
Montgomery County, Tennessee. The CyberTip, which originated with Google, reported
that an internet user in Montgomery County, Tennessee, uploaded multiple video files
containing child pornography using the email address kadlcins1007@gmail.com
. The user associated with this gmail account submitted the following phone number: 304-543-4844.
Additionally, the CyberTip provided four images alleged to contain child pornography. I subsequently reviewed the images provided in the CyberTip Report, which are described
as follows:

a. An up-close image of what appears to be a pre-pubescent boy's penis and scrotum, in which the boy appears to be approximately 5 to 8 years old.

b. An image of a nude pre-pubescent boy (approximately 4 to 6 years old), lying
across a large dog who is sleeping in an armchair. The boy's thighs are spread.
Case 3:17-mj-04231 Document 1 Filed 12/06/17 Page 2 of 5 PageID #: 2

c.An image of the same pre-pubescent (approximately 4 to 6 years old) nude boy,
lying across the same dog, whose legs are spread as described above. This image is shot from a different angle than the image described in the previous paragraph.

d. A screenshot that contains three separate images: two of the images involved adults
engaged in sexual activity with dogs and the relevant image depicted a semi-nude adult male whose erect penis was lying across the thigh of a nude, pre-pubescent
girl. The girl, who was lying on her back, appeared to be a toddler, between the age of one and three years.

Google had reported three CyberTips to NCMEC relating to the same email
(lcadkins1007@gmail.com) and phone number (304-543-4844) in the two to three week
period leading up to February 7, 2017.

6. Per open source database checks, on August 17, 2017, phone number 304-543-4844 was
associated with Robert Adkins and Kara J. Adkins, 3613 Aurora Drive, Clarksville,
Tennessee 37040. As of that date, Robert Adkins, who is married to Kara Adkins, was
active duty in the U.S. Army, and was then stationed at Camp Henry in Korea.

7. Additionally, according to the Clarksville Montgomery County School System (CMCSS)
Powerschool Database, Robert Adkins and Kara Adkins are parents who have three
children enrolled in the CMCSS school system. Robert Adkin's listed email address is
robert.adkinsI@soar.army.mil. Kara Adkins' listed e-mail address in the CMCSS database
is kadkins 1007@gmail.com, the same e-mail address used to upload the child pornography
images reported in CyberTip #16888528. The CMCSS database listed, for each child, the
primary contact and/or home phone number as 304-543-4844. This is the same phone
number associated with the aforementioned email address that was used to upload child
pornography images, as reported in CyberTip #16888528.

8. On August 17, 2017, a law enforcement officer searched for "Kara Adkins" in the
Tennessee Criminal Justice Portal. This search revealed that a 2012 Nissan Armada, tag number 2075HL, was registered to Kara and Robert Adkins. The registration listed 3613
Aurora Drive, Clarksville, Tennessee as the address for Kara and Robert Adkins.

9. On August 17, 2017, law enforcement officers with the MCSO executed a state search
warrant at the residence of Kara Adkins to search for evidence of sexual exploitation of a minor. During the search, a number of items were seized pursuant to the search warrant,
including an iPhone belonging to Kara Adkins. During the execution of the search warrant, investigators also were able to identify the child and the dog depicted in two of the photos described above in paragraphs 5(b) and 5(c). 2