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)


Anonymous said...

Unreal that a lawyer would write a letter like that to his own client.

Anonymous said...

Pretty obvious to me that this lawyer is trying to get Mr. Wells to plead guilty, regardless of what the facts and law might say.

Goob said...

Some impressive lawyering on Mr. Cantin's part. The idea seems to be, "Hey, let's scare my client into pleading guilty, and I won't have to put forth any effort on a defense."

Anonymous said...

Somebody needs to send a copy of this letter to the Missouri Bar Association, along with a complaint. Disgraceful.

Anonymous said...

If Wells thought the girl in the Facebook photo was 19, and the feds can't prove otherwise, that should end the case.

Anonymous said...

Are you absolutely sure this guy didn't do child porn?

legalschnauzer said...

@10:55 --

No, of course not. I haven't been looking over his shoulder for the past 2-3 years. But you are missing the point. In our system, the government has to prove its case beyond a reasonable doubt. I've studied the applicable law and the criminal complaint in Wells case, and I can't find probable cause for his arrest, the search, or detention -- much less "beyond a reasonable doubt." The burden is on the government to bring a legit case -- I have no burden at all -- and I don't think the feds have even come close, yet Mr. Wells has lost two years worth of his freedom. If the public doesn't find that troubling, then a lot of folks have checked out as citizens. I invite you to review the criminal complaint that is embedded with the post. If you find probable cause that individuals in the images were minors, or that Scott Wells knew they were minors and knowingly received or distributed the photos, please let me know. I don't see it.

Anonymous said...

I think it would be better use of the feds' resources to go after those who actually produce child porn rather than focusing on a guy who may or may not have viewed a handful of images that may or may not even be child porn.

Anonymous said...

We live in a world where all of us receive stuff on our computers that we didn't seek. That's where terms like "spam" and "pop ups" come from. They are real, and they can leave data behind that we don't know about. I suspect you can do a search on "child beauty pageants" and wind up with pornographic images in your cache. I don't see how feds can prove the age or "knowingly" element in a lot of these cases, but they try it anyway.

legalschnauzer said...

@6:22 --

Well stated. This whole area of "criminality" has grown from the digital age, and the fact the Web is awash in porn, much of it perfectly legal. It only becomes illegal when someone in an image is below 18 years old, and how many of us can tell a 16-year-old from a 19-year-old, in some cases? Without names and birth dates of subjects, I don't see how prosecutors can prove age in many of these cases, but my research indicates they can get away with claiming "this person looks like a minor." Well, maybe it is and maybe it isn't, but Scott Wells has lost two years of his freedom, based pretty much on nothing.

Thomas S. Bean said...

Please review the infamous neutralization of Donald Seten in Sioux Falls, SD.

He was found to be using his work computer (City Hall-Dept of planning and zoning) to review some images of what appeared to be young women who could have been 18-20 years old. Apparently this computer got a virus and had to be reviewed by a geek, who found the incriminating evidence? That's a clever way of getting around warrants while also hiding a neutralization of a city employee tasked with developing zoning plans that can be lucrative to speculators who have advanced knowledge of what real estate is gonna be more valuable in the near future.

No one knows the age of the alleged crime victims (girls pictured): certainly not the States Attorney, Hope Matchan (again, this person in a controversial abuse of prosecutorial discretion?...she was in on the Charles Smith frame up remembered for selective prosecution where all coconspirators to the conspiracy were not charged). The charging documents did not name the alleged crime victims and the defendant could not investigate their like a key dispositive element of the crime alleged was not proven, proveable, or in question before the bench????

Motion to dismiss?

Who has the burden of proof?

Why go through a trail, and a give reactionary jury pool (rigged with ringers who work as professional jurors dedicated to always finding their confirmation bias when called to their duty by their pals in law enforcement) the opportunity to engage in inflamed scapegoating without actual and explicit proof of all essential elements of the crime?

Seten pled guilty.

Charges should have been thrown out or a mistrial declared.

Appeallable after being found guilty? Who can afford an appeal? The Defendant is still in prison awaiting an appeal?

This is the plea bargain marsupial court system where your guilty of suspicion and by suspicion regardless of facts or law or zealous counsel.

Un flipping believable.

Long ago, I learned to immediately fire the bogus police spies known as Public Defendors because proceeding pro se means "you have a lawyer dedicated to zealous counsel for the benefit of the client".

Last summer, I come to find of the surveillance group's latest operatives (snitch) has a brother found guilty of reviewing dubious images and......the guy got a slap on the wrist as though this leverage was used to coordinate informant recruiting of the brother: "YOU WORK FOR US AGAINST TSB, and we'll take care of your brother"?

In the past, Austin Texas PD colluded to plant ecstasy in a briefly known associate of mine, to turn him into a reluctant informant against me. Planting drugs as part of informant recruiting (slavery violates The 13th Amendment)???

The APD narc later worked another illegal surveillance (police sketches) tied to the savage murder of a pregnant, christian housewife named Christina Moore (Round Rock, Texas). I identified the police sketches, but local clown cops...did not really much care about all unindicted coconspirators to the illegal NSA surveillance used to coordinate the savage murder of this woman married to the reporter who broke the story on Cheney's secretive energy task force (documents were never reviewed by The GAO). Enron deaths. Reporters find themselves targeted, along with their wives?

I know another journalist who's wife got targeted with a broken arm.