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.):
. . . 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|
“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;
(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)