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,,,, and

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)

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