Tuesday, April 30, 2019

Why is Alabama cop Michael Smirnoff nailed for criminal civil-rights violations, while Shelby County thugs Chris Blevins and Jason Valenti escape scrutiny?

Michael Smirnoff

An Alabama police officer has pleaded guilty to federal criminal charges of violating a man's civil rights by repeatedly assaulting him while he was handcuffed.

The case of former Tallassee officer Michael Smirnoff shows, in some cases, our "federal justice apparatus," takes criminal violations of civil-rights laws seriously and seeks to hold rogue officers accountable. When taken in conjunction with my own case of being beaten and wrongfully arrested by Shelby County deputies inside my own home, the Smirnoff case also shows the feds can look the other way when an instance of police misconduct goes beyond a crooked street cop to include crooked legal and political figures.

Smirnoff was charged under 18 U.S.C. 242 ("deprivation of rights under color of law), which we've written about several times. (See here, here, here, and here.)

The bottom-line question regarding the Smirnoff case and mine: Why did FBI and U.S. attorney officials in Alabama pursue the Smirnoff case, while (so far) we see no signs that they've done anything on my case. Are Chris Blevins and Jason Valenti -- the Shelby County thugs who unlawfully entered our home, beat me up, doused me with pepper spray, threatened to break my arms, and hauled me to jail for a five-month stay (with no whiff of a criminal allegation) -- supposed to get a free pass? Are Blevins and Valenti protected because their criminal acts were driven by political/legal figures -- likely including attorney Rob Riley, lobbyist Liberty Duke, former Alabama Attorney General Luther Strange, attorney Jessica Medeiros Garrison, U.S. Judge Bill Pryor, and former U.S. Sen. Jeff Sessions (R-AL), among others?

Do the FBI and the U.S. Department of Justice (DOJ) practice a form of white privilege, where bad cops get away with criminal acts if they are committed at the behest of white, conservative political figures? But a thuggish cop gets nailed if he, like Smirnoff, acted essentially as a lone wolf?

Our experience indicates the answer to both questions is yes. It certainly is not because the feds don't know about my case. First, it received national and international news coverage. Second, I contacted two FBI offices in Alabama, and to my knowledge, they've done nothing.

On November 19, 2018, I contacted Susan Hansen, of the Montgomery FBI Office, and told her about my experience in Shelby County with officers Blevins and Valenti. I had read about her involvement with the Smirnoff case, and that's why I contacted her, even though I figured jurisdiction on my case probably would rest in Birmingham. Ms. Hansen took down details about my case and treated me in a professional manner, but as I expected, she said the matter was outside her purview, and it would need to go to the Birmingham office. She said she would pass along the information to her counterpart in Birmingham, Cornelius Harris.

Chris Blevins
I took the extra step of contacting Mr. Harris in Birmingham and leaving a detailed voice message with him. I've never heard from him. Did Mr. Harris ignore my phone message and toss the info from Ms. Hansen in the trash? Did he take a genuine interest in the case, only to have his superiors -- Special Agent in Charge Johnnie Sharp Jr. and U.S. Attorney for the Northern District of Alabama Jay Town -- short-circuit it for political reasons?

The answers to those questions are unknown at the moment, but it's clear I was beaten, kidnapped, and incarcerated for political reasons, and it's likely a cover-up is under way for political reasons.

As for Michael Smirnoff, how did he get in trouble? From a report at al.com:

According to the guilty plea, Smirnoff was on duty as an investigator in March 2016 when he used his patrol car to pursue a 24-year-old man who was on a four-wheeler. After the pursuit, the victim stepped off his four-wheeler, laid face down on the ground, and allowed several Tallassee police officers to handcuff him.

While the man was handcuffed, authorities said, Smirnoff lifted him into the air and then slammed him to the ground. Smirnoff then repeated the assault. Moments later, before Smirnoff placed the victim into his patrol car, Smirnoff slammed the victim’s head into the side of the vehicle. For each assault, the victim was handcuffed, compliant, and did not pose a threat, Franklin said.

Smirnoff faces a maximum sentence of 10 years in prison and a $250,000 fine. His sentencing has been set for July 18.

Chris Blevins and Jason Valenti should be facing similar punishment. But it appears they haven't even been investigated. Of course, if powerful figures are pressuring the feds to lay off Blevins and Valenti, that itself is a crime -- obstruction of justice. Those who know about the offense, but have failed to report it to the "proper tribunal" also are committing a federal crime -- misprision of a felony.

Does law enforcement in Alabama take police misconduct conduct seriously, in general, or only in certain cases? Consider these words from Middle District U.S Attorney Louis Franklin and his assistant, Eric Drieband:

“Police officers who willfully use excessive force not only violate the Constitution, they erode the public trust in law enforcement,” Drieband said in a prepared statement. 
“It is especially important in a climate of distrust between law enforcement and the public, that officers act ethically and within the bounds of the law,” Franklin said. “This police officer’s brutal behavior was unacceptable and criminal. He violated this young man’s constitutional rights and the trust placed in law enforcement officers to faithfully, ethically, and morally enforce the law. You can be sure that anytime an officer steps over the line and into criminal behavior, as this one did, my office will hold that individual accountable.”

Should the public take those statements seriously or consider them empty words?

Monday, April 29, 2019

Unable to handle his own false and deceptive claims, Dry Alabama con man Matt Osborne tries to blame others for being "confused" or getting stuff "wrong"

Matt Osborne
After engaging in a substantial back-and-forth with me, Dry Alabama scammer Matt Osborne pulled a surprise by producing some evidence that actually did illuminate issues we had been discussing. But in keeping with his underhanded tendencies, Osborne tried to blame my wife, Carol, for being "confused" and "wrong" when she had not written the first word in our discussion. In fact, I was acting as translator for Carol on Osborne's jumbled ramblings, and any confusion was caused by Osborne or me, trying to grasp events that happened at our home while I was in jail.

Osborne left the following comment, on our April 17 post, at 11:42 a.m. on April 19:

Matt Osborne said...

Roger, ask Carol if these words are familiar:

"Me and the kitties got plenty of sleep yesterday. And I woke in the evening to feed them and I discovered your wonderful gift on the front porch which I can't wait to try. BTW. then I had a chicken sandwich for later dinner. So it was low-key to say the least. And I agree about it being any number of bloggers etc. These folks are psycho!! I'm trying not to let them get me down. The latest worry is spark coming out of our icemaker inside our ancient freezer. I was banging on it. Yikes!! But it is not hooked up to make ice. I may need to get a couple screw drivers, flip the circuit breaker and get the dang thing out of there! It serves no purpose whatsoever. Roger and I had talked about removing it before the arrest. I just hope it doesn't cause a fire. Now I'm scared to go to sleep But I need to just not banf (bang) it in the future."

(Note: Carol's reference to her late dinner being "low-key, to say the least." That suggests this was on date where she normally would have a special meal. Carol believes it was around Thanksgiving or Christmas, which would have been 1-2 months after the Osborne visit to our home, around Halloween.)

^^^ This is the text of the Facebook email that Carol sent to thank Melissa for the food, including typos. Melissa is under no obligation to put her account number on display for your satisfaction. No one is ever under an obligation to prove they sent you a gift 5.5 years ago just because you can't remember it.

When I arrived at the house with my girlfriend, Carol was expecting us, invited us both in the door. Then she showed us where you had been arrested in the basement and my girlfriend held the camera while Carol told us what had occurred in there. A lot of concerned people were very interested to see that video and the photos I took. Good luck getting any law enforcement agency to act on your complaint of an unarmed home invasion by a couple of people trying to help your wife.

As for who told me about your brothers: YOU DID. You have written several blog posts about them. See:



Do you now deny ever writing these blog posts, you funny little man?

Osborne seemed to think he had a "gotcha moment" here. But I'm not sure how he figured that, given that -- as usual -- he has a slippery grip on the truth:

legalschnauzer said...

Yes, those words are familiar to Carol because she wrote them to Melissa, thinking she had met her when you came to our home. As for the food, Carol remembers you and your companion bringing a bag of grocery items with you when you came to our home. She doesn't remember a food basket appearing on our doorstep, but so much was going on during that time period, her mind likely was jumbled. At that point, Carol was running the risk of being arrested every time she opened the door. You can ask your friend Doug Jones about that because I'm sure he knows details about my arrest, theft of our home, the cheat jobs on our employment, etc. If not, he can find out from his friends Rob Riley and Luther Strange.

Carol does remember the ice-maker issue, and she obviously thanked Melissa, so there must have been a food basket. I hope you have some appreciation for the fact that, a few days earlier, Carol had come upon a scene in our basement that made her think her husband had been murdered -- as it turned out, I had only been kidnapped. But either way, that kind of thing knocks your world off its axis and your current utter lack of empathy for what we went through is a little creepy for someone who claims to be a liberal, caring about a free press, First Amendment, civil rights, etc.

 I can only attribute that change to your affiliation with Doug Jones, however far back it goes. Jones is sort of the William Barr of insurance fraud, as practiced by U of Alabama honcho Paul Bryant Jr. As U.S. attorney in Bham, Jones let Bryant and his Alabama Reassurance Co. get away with millions of dollars in insurance fraud from a case that already had been proven in Philadelphia. That's one of many reasons I find Jones to be a repugnant individual, but perhaps you will discover that on your own someday. BTW, I sure can understand why Melissa blocked Carol on Facebook, given the traumatizing "pathos" of our ice-maker issue.

Another thought or two:

(1) Regarding possible trespass, I'm talking about a civil case, which still is within the six-year statute of limitations. I'm not necessarily looking forward to bringing such a claim, but it remains a possibility -- especially since you continue to insult and trash both of us, giving us reason to believe you entered our home under false pretenses, that you never were there to actually help. (Plus, it's clear the journalists who have disproven my reporting do not exist, so you have no real reason to have soured on me or my work. That's only happened because of Doug Jones.) The possibility of ulterior motives becomes even stronger now that we know you have a taste for acting under fraudulent and deceptive circumstances. You might think your "funny little man" comment is clever, but it is just digging your liability hole deeper. (BTW, I might be a lot of things, but I'm not little; I'm 6-4, 215, and that's not a Trump tale. I also tend to be good-natured, but it's a simple fact that I'm not "little.")

(2) Of course I wrote those posts about my brothers. But you claimed they were trying to "help" us, and you certainly could not have gotten that from those posts. In fact, both posts you cite are about my brothers (especially David, the lawyer) making abusive use of the court system to hurt us. And their "incapacitated" case was so weak that even a Missouri judge dismissed it for lack of evidence. Specifically, I think David and Paul asked for it to be dismissed because they seemingly admitted they had no evidence. Bottom line: You didn't get info about my brothers "helping" us from my posts, so it must have come from somewhere else. Maybe "RogerS" told you. Oh wait, he doesn't exist either.

Before receiving a reply from Osborne, I decided to add a few facts about my family, an issue with which Osborne clearly is uninformed:

legalschnauzer said...

I have to chuckle that you, a supposed liberal, would try to put positive spin on my brothers, both of whom are avowed Trumpists and right-wingers. Both of them, as I understand it, are serious racists. Paul, I'm told, made sport out of calling Michele Obama a "gorilla." David used to bitch about black students getting scholarships in law school. Even David's special-needs, teen-age son is a Trumper, though he probably would never have health care if Trump had his way.

I never heard a racist thought within my family growing up, but when I moved to Birmingham, my brothers apparently took over and brought Kluxerism (or something like it) to the forefront. My understanding is that my mother was horrified to see black people, quite a few of them, at our wedding. They were our friends, and I think that turned my mother against Carol, deciding it was Carol's fault that we lived in Birmingham among the "darkies." I think my mother also was convinced Carol turned me into a n----r loving liberal, even though I had generally been a Democrat for as long as I can remember -- casting my first vote for Jimmy Carter, although being stupid enough to vote for Reagan and Bush I in the '80s.

You have a tendency to mouth off about things you know nothing about. You absolutely have no clue about my brothers. Among my whole family, I'm pretty sure Carol and I are the only liberals, the ones who believe in equal rights based on race, gender, religion, sexual orientation, LGBLT, etc. I have one niece, Erin, who is a physician and might be a lib, but I'm pretty sure she's the only possible non-Bush/Trumper, besides Carol and me.

And you spend your time calling us kooks because Doug Jones doesn't like my (accurate) journalism? You truly are a misguided soul.

Try thinking for yourself, funny little man.

Osborne then seemed determined to prove Carol got something "wrong," even though she had not directly engaged in our conversation for even one word:

Matt Osborne said...
" . . . thinking she had met her when you came to our home";

So you now admit Carol is confused, good

" . . . As for the food, Carol remembers you and your companion bringing a bag of grocery items with you when you came to our home";

Yes, this is what nefarious agents of Doug Jones do, we all bring groceries to your door, we are sinister little grocery elves

" . . . She doesn't remember a food basket appearing on our doorstep, but so much was going on during that time period, her mind likely was jumbled";

So glad you can admit Carol is wrong.

Your threats to sue are hilarious. Bring it on if you are so confident. I DEMAND that you initiate this litigation immediately.

I decided to set a few things straight, since Osborne (known as a disinformation practitioner) obviously could not do it:

legalschnauzer said...

Carol doesn't admit that she is wrong or confused about anything and neither do I. In this back and forth via blog comments and Twitter, Carol has not written one word. If you can find a word she's written, let me know. If you want to discuss it with her directly, give it a shot.

I've tried to translate your confused ramblings and asked her about a couple of things, but any confusion comes from my struggle to convey what you were trying to say, between all the insults and spitball tosses. I told her that you seemed to be claiming that you and your female friend presented Carol with a food basket when you came to our house somewhere around Halloween (Oct. 30?). Carol said, "No, they gave me a regular bag of groceries." And you now admit she was right about that. The food basket apparently arrived at some later date, from a person (Melissa Brewer) you claim Carol had never met. What date did Melissa send the food basket? How big a gap was there between the two food events?

Carol received a number of care packages during that time, and she was grateful for all of them. But I told her I thought you said you and your friend gave her a food basket at our house, and Carol said, "No, it was a bag of groceries." And she's right. As for me, I was in jail, so I don't know what happened, and I'm probably a pretty bad translator on these issues.

The food bag/basket issue seems meaningless to me, and I wonder why you are obsessed with it. As for someone being wrong on substantive issues, let's look at your track record:

(1) You are wrong about the law on interfering with a federal election;

(2) You are wrong about the law re: the meaning of the word "scam";

(3) You are wrong about journalists "disproving" my reporting;

(4) You are wrong about my brothers trying to "help" us;

On top of that . . .

(1) You don't deny asking around about access to our computer;

(2) You seem to admit that you are an agent for Doug Jones -- and apparently have been for some time.

Finally, any lawsuit Carol and I might file will come when we are ready, within the statute of limitations -- and we have several months to decide on that. If it happens, you will be among the first to know.

To end things on a lighter note, here is "Funny Little Man," a lovely tune from Seals and Crofts'  classic 1972 album Summer Breeze. The album is filled with great stuff and long has been one of my favorites. When Osborne pulled his "funny little man" line, I immediately thought of Seals and Crofts -- and my copy of Summer Breeze, which was lost in the bogus foreclosure on our home:

Now that I'm on a Seals and Crofts roll, I can't get off. The duo were known mostly for ballads, but here is another song from Summer Breeze, a rocker called "Say":

Finally, we have one of my long-time favorites, called "Advance Guards." It almost sounds like a children's song to me, but I think it's about a heavy subject -- thinking back over your life in the minutes before confronting possible death. Not sure if my interpretation is correct, but 45 years after I first heard it, the song still resonates. "Advance Guards" also is from Summer Breeze, but this is a live version:

Thursday, April 25, 2019

Doug Jones, who might have sexual-misconduct issues of his own, made electoral hay on the issue with Roy Moore but seems to brush it off regarding Joe Biden

Joe Biden and Doug Jones

U.S. Sen. Doug Jones (D-AL) has pretty much given Democratic presidential hopeful Joe Biden a pass on sexual-misconduct allegations, which is ironic given that Jones earned his seat largely because of sexual-misconduct allegations against his Republican opponent, Roy Moore.

Do Jones' comments, coming in a Mother Jones podcast published yesterday, suggest he is angling to be running mate if Biden is nominated? The answer likely is yes. Could all of this go off the rails if reports prove true that Jones has a "special friendship" with a woman in Birmingham who is not his wife? On that, it's too early to say. But we are researching the matter and have learned the woman has experience with multiple law firms in the metro area.

Yellowhammer News (YH), an Alabama right-wing Web site, reported yesterday on the Mother Jones podcast, with the headline "Jones says Biden sexual harassment allegations ‘distract’ from beating Trump – ‘We have to not be so judgmental’." First, we should note that no one has made sexual-harassment allegations against Biden; several women have said Biden sniffed their hair, hugged them, or touched them (usually on the shoulders) in ways they considered inappropriate or discomfiting. Vox has referred to it as Biden's "Creepy Uncle Joe" problem.

As for Doug Jones, he has placed himself solidly in Biden's corner, according to YH:

On a recent Mother Jones podcast, Jones early on in the interview brags about how Democrats are “on the right side of history.” Later on, he is asked if there are any particular Democratic presidential candidates he is “excited about” for 2020. Jones has previously pledged to back whomever the Democrats nominate against President Donald Trump in 2020, no matter how radical they are.

Answering the host, Jones said, “I’m crazy about all of my Senate colleagues. They’re incredibly bright folks and have a lot to add to this upcoming primary season. I think it’s going to be very interesting to watch. … Obviously, I’ve been very candid about this in the past — my closest friend in this field of candidates has been someone I’ve known for 40 years. And that’s former Vice President Biden. And despite the issues that he’s faced, I still think that he has the ability to reach people from all ends of the political spectrum and govern this country.”

While Jones made electoral hay with sexual-misconduct allegations against Roy Moore, he doesn't seem much concerned about similar allegations involving Joe Biden. From YH:

While [Mother Jones] included this response in their transcript of the interview, they edited out what came next, when Jones spoke about “the issues” surrounding Biden.

From the 21:30 – 25:10 mark in the podcast, Jones discusses Biden’s behavior with women and concludes that the allegations against him “distract” from the Democrats’ ultimate goal of beating Trump.

Before reaching that conclusion, Jones’ remarks strayed well into “word salad” territory, with the junior senator saying at one point, “Where even what I believe to be, I won’t use the term ‘innocent’ because that’s probably not appropriate, but I don’t think Joe Biden ever had the kind of intention you had that in a harassing kind of way or an assaulting kind of way. But this is another step in an interesting movement and a very important movement for this country that we have to recognize more about the people on the receiving end.”

When pressed on whether Biden’s intent matters or not, Jones then seemingly backtracked, saying, “No,” and adding that he was “not trying to mitigate” the allegations.

Jones goes on to state that his primary concern is beating Donald Trump in 2020, and he seems to admit the "Creepy Uncle Joe" issue could be a problem. From a YH transcript of the podcast:

HOST: So, follow up, is he saying the rights things on that, Biden? Like, is he actually meaningfully addressing the criticism that’s been waged at him?

JONES: You know, it’s funny, I think he’s said some of the right things, I think he’s said some wrong things. I think the thing that people need to remember that it’s not for others to judge. It’s really for the people who are at the receiving end of that. They’re the ones that need, they’re the ones that need the reassurance, and I think this is another interesting, I think, and very important step in the movements that we’re seeing across America. Where even what I believe to be, I won’t use the term “innocent” because that’s probably not appropriate, but I don’t think Joe Biden ever had the kind of intention you had that in a harassing kind of way or an assaulting kind of way. But this is another step in an interesting movement and a very important movement for this country that we have to recognize more about the people on the receiving end. And I’ve said that for years anyway. I’ve said it about civil rights, I’ve said it about other things. It goes back to Atticus Finch, you gotta walk around in someone else’s shoes to see things from their point of view. And I think this is a very, very significant moment where more and more people are taking a look at that.

HOST: Does Vice President Biden’s intention matter when it’s received in an awkward or maybe intimidating way?

JONES: No, I mean, look, that’s what I’ve said a minute ago and I’m not trying to mitigate that at all. I think it’s not the intentions, it is the person who is on the other end of that. That’s what we have to be cognizant of. That’s why this is such an important moment. That it, you know, it’s one thing to harass, it’s one thing to assault but I think now what we’re seeing is that we’ve got to be so much more aware of someone else’s space. I think this is a very, very significant and important moment where we are in this country and recognize, particularly, the issues that every, I don’t want to say every, but just about every woman will face at some point in their lifetime, and I think it’s really significant. So, it’s not the intentions of folks like Joe or me or anybody else, it’s the woman that we’re talking to or shaking hands with.

HOST: Do you think debates around this can sort of distract from the ultimate goal that Democrats have of beating Donald Trump?

JONES: Oh, absolutely, I think a lot of things, I mean, I think, you know, President Obama this weekend in Berlin at the Obama Foundation was talking about Democrats having a circular firing squad over things that are important but not something that can win the election.

Wednesday, April 24, 2019

Presence of file-sharing software, such as LimeWire, or a subscription to an online provider of illegal images, can establish knowing intent in child-porn cases

Peer-to-peer file sharing

If prosecutors strike out on the four-factor test federal courts have established to determine if an accused acted knowingly in a child-pornography case, they have at least two other chances, based on our research. We've shown hat -- given an ethical judge and a competent jury -- prosecutors are likely to strike out on the four-factor test in the pending Missouri case of U.S. v. Scott J. Wells.

So,, how might the feds fare with their two additional strikes in Wells? Let's take a look at the questions those pose. We will call these factors No. 5 and No. 6:

(5) Did Wells use file-sharing software, such as LimeWire or Kazaa?

Our research indicates this might be the most important arrow in the prosecutor's quiver for proving knowing intent in a child-porn case. In fact, if it can be proven an accused used peer-to-peer (P2P) file-sharing software -- and LimeWire and Kazaa are two of the most commonly used such programs -- his chances of beating charges in a child-pornography case are very slim.

LimeWire was at the heart of U.S. v. Hill (8th Cir., 2014), a case that originated in Southwest Missouri and includes some of the same investigators involved in Wells. From the Hill opinion:

Hill admittedly downloaded and actively used LimeWire—file-sharing software that made the scores of pornography files in Hill's shared folder accessible to any LimeWire user in the world, including Officer Smith. LimeWire itself was a publicly accessible program available for free download by anyone with a computer and an internet connection. Hill had no reasonable expectation of privacy in such publicly shared files and “ ‘cannot invoke the protections of the Fourth Amendment.’ "[quoting United States v. Ganoe, 538 F.3d 1117, 1127 (9th Cir.2008)] . . .

The evidence presented at trial was also more than sufficient to convict Hill of knowingly receiving and distributing child pornography. At trial, Hill unequivocally confessed to “knowingly receiving and distributing child pornography” as charged in the indictment and intentionally using LimeWire to download and view the images and one of the videos for which he was convicted. Hill claimed he searched for and downloaded child pornography in an ill-conceived plan to protect his stepdaughters, not knowing the files in his LimeWire shared folder would be accessible to other users. But the jury was not obligated to accept Hill's admittedly irrational justifications and belated claims of ignorance.

Kazaa was central to a case styled U.S. v. Griffin, 482 F.3d 1008 (8th Cir., 2007). That case started with an investigation of child-porn distribution in Denmark and found its way to James Griffin in Davenport, Iowa. From the Griffin opinion:

Griffin admitted that he downloaded child pornography from Kazaa — an internet peer-to-peer file-sharing network — but maintains that he only downloaded the images and videos for his personal use, not for distribution to others. However, Griffin also admitted that he knew Kazaa was a file-sharing program and knew that, by using Kazaa, other Kazaa users could also download files from his computer. The government asserted that Griffin's use of Kazaa with knowledge of its capabilities constituted distribution. By using the file-sharing site, Griffin enabled other Kazaa users to download files from Griffin's shared folder, including any child pornography files stored there. Otherwise, the government argued, Danish police could not have traced the partially downloaded child pornography clip discovered in Denmark back to Griffin.

Bottom line: Hill and Griffin were toast when prosecutors were able to show they used file-sharing software to receive and distribute child pornography. The law is settled that the use of such programs establishes knowing intent. But what about Scott Wells? What do investigators say in their complaint/affidavit (embedded at the end of this post) about file-sharing programs.

The answer is simple: They do not say a word. No mention of LimeWire, Kazaa or any other file-sharing program. The evidence we've seen so far indicates the government cannot show Scott Wells used a file-sharing program -- and that means the feds' chances of proving Wells acted knowingly are significantly reduced.

(6) Did Wells pay to subscribe to a Web site that provides access to child-porn images?

The Web apparently is awash with Web sites where a user can pay for a subscription that allows him to obtain images of child pornography. In other words, some people make money -- probably significant amounts of money -- from trading in child porn. Such a subscription, to a now-shuttered Web site called Lolitagurls.com, was central to a case styled United States v. Gourde, 440 F.3d 1065 (9th Cir.2006). From the Gourde opinion:

Turning first to the website itself, the evidence is unequivocal that Lolitagurls.com was a child pornography site whose primary content was in the form of images. Indeed, the owner admitted that it "was a child pornography website that he operated as a source of income." The owner's confession to the FBI established that Lolitagurls.com actually contained illegal content, the possession, receipt or transfer of which would be a violation of 18 U.S.C. § 2252. . . .

The affidavit then moves from one certainty, that child pornography was on the website, to another—that [Michah] Gourde had access and wanted access to these illegal images. Gourde subscribed to Lolitagurls.com for over two months, from November 2001 to January 2002. As a paying member, Gourde had unlimited access to hundreds of illegal images. He clearly had the means to receive and possess images in violation of 18 U.S.C. § 2252. But more importantly, Gourde's status as a member manifested his intention and desire to obtain illegal images.

Membership is both a small step and a giant leap. To become a member requires what are at first glance little, easy steps. It was easy for Gourde to submit his home address, email address and credit card data, and he consented to have $19.95 deducted from his credit card every month. But these steps, however easy, only could have been intentional and were not insignificant. Gourde could not have become a member by accident or by a mere click of a button. This reality is perhaps easier to see by comparing Gourde to other archetypical visitors to the site. Gourde was not an accidental browser, such as a student who came across the site after "Googling" the term "Lolita" while researching the Internet for a term paper on Nabokov's book. Nor was Gourde someone who took advantage of the free tour but, after viewing the site, balked at taking the active steps necessary to become a member and gain unlimited access to images of child pornography. Gourde is different still from a person who actually mustered the money and nerve to become a member but, the next morning, suffered buyer's remorse or a belated fear of prosecution and cancelled his subscription. Instead, Gourde became a member and never looked back—his membership ended because the FBI shut down the site. The affidavit left little doubt that Gourde had paid to obtain unlimited access to images of child pornography knowingly and willingly, and not involuntary, unwittingly, or even passively.

A subscription to Lolitagurls.com showed clear knowing intent in Gourde and pretty much ensured he would be convicted -- with the conviction upheld on appeal. What about Scott Wells? Does the government, in its complaint/affidavit, point to his membership in any online provider of illegal images? The feds own evidence, as it exists for now, does not say a word about Wells' involvement with any such subscription site.

Through two posts, we have examined six factors the government usually uses to prove an accused acted knowingly in a child-pornography case. Our analysis shows the feds, based on their own complaint/affidavit, struck out on all six factors in U.S. v. Wells-- and yet, Scott Wells has been detained for more than two years, and he remains (for now) in the Greene County Jail in Springfield, MO.

We can find no sign of probable cause to support Wells' arrest, detention, or a search of his home. And yet, he remains behind bars because of charges the government almost certainly cannot prove.

Tuesday, April 23, 2019

AG William Barr lied to the American people about law governing collusion, meaning Team Trump is no more home free on that issue than it is on obstruction

William Barr

U.S. Attorney General William Barr made a false statement regarding the law governing collusion during his press briefing last week before release of the redacted Mueller Report. That means the Trump Administration was not exonerated on obstruction of justice, and likely remains on the hook for collusion, as well.

During the press conference, Barr addressed the possibility of Trump affiliates conspiring with Russians to publish stolen emails and other documents from the Democratic National Committee and the Hillary Clinton Campaign. Said Barr:

The Special Counsel’s investigation also examined Russian efforts to publish stolen emails and documents on the internet. The Special Counsel found that, after the GRU disseminated some of the stolen materials through its own controlled entities, DCLeaks and Guccifer 2.0, the GRU transferred some of the stolen materials to Wikileaks for publication. Wikileaks then made a series of document dumps. The Special Counsel also investigated whether any member or affiliate of the Trump campaign encouraged or otherwise played a role in these dissemination efforts. Under applicable law, publication of these types of materials would not be criminal unless the publisher also participated in the underlying hacking conspiracy. Here too, the Special Counsel’s report did not find that any person associated with the Trump campaign illegally participated in the dissemination of the materials.

The highlighted section above is critically important because it isn't true. You will notice that Barr makes no citation to law to support his claim. That's because there is no such citation.

An October 2018 publication from the Brookings Institution, titled "Considering Collusion: A Primer on Potential Crimes," spells out the law governing possible collusion, conspiracy, and coordination -- and it's very different from what Barr said in his press briefing. In fact, the differences are so substantial that it raises this question: Given Barr's blatantly false statement on collusion law, can Americans trust anything he says on the Trump-Russia scandal.

From the Brookings report:

The president and his proxies have frequently advanced the claim that such coordination, even if it occurred, would not be unlawful. Their refrain that “collusion is not a crime” is in one sense correct. Collusion is not a single crime. It is instead a rubric that encompasses many possible offenses. We detail some of the principal ones in this report.

All turn on the possibility that Trump or his associates took action in connection with Russia’s attempts to impact the outcome of our country’s presidential election. The criminal nature of the Russian effort is already well-known. The special counsel’s 191 charges brought against 35 individuals and companies spell out some of the crimes allegedly committed in furtherance of the Russian attack on our democracy. Those include indictments of Russian individuals and entities for their participation in conspiracies to hack into the computer and email systems of Trump’s political opponents and release damaging information and to engage in a social media disinformation campaign using fake identities.
Robert Mueller
It logically follows that if the president or his campaign aides worked with the Russians in connection with those efforts, they too may be liable. That is not just common sense—it is also the law. The specific “collusion” crimes that may be implicated by any coordinated efforts between the president or his campaign aides and Russian operatives principally fall under the rubric of conspiracy: an agreement to further illegal action. The core federal conspiracy statute, 18 U.S.C. § 371, would be implicated if there was any agreement between members of the Trump campaign (or Trump himself) and Russian agents to do something that the law prohibits. For example, if, in connection with the infamous June 2016 Trump Tower meeting, the Russians and a Trump representative tacitly or explicitly agreed about the release or use of illegally obtained information, that could credibly support a conspiracy charge. In fact, there is already enough evidence of this potential “collusion” crime to warrant a searching review of those events, including the fact that within hours of the Russian offer of “dirt” regarding Hillary Clinton in June 2016, Mr. Trump announced a major speech promising revelations about his opponent.

Notice the last highlighted sentence in the section above. It plainly states that a Trump representative would not need to have been involved in illegally obtaining information to support a conspiracy charge. All that is needed would be evidence of an agreement, tacit or explicit, about the release or use of such information. Other avenues exist for holding Trumpists accountable on the subject of collusion. From Brookings:

Another example of a “collusion” crime is conspiracy to defraud the United States, which the special counsel charged against Russian social media propagandists and hackers in a February 2018 indictment. Their cyber-misconduct—which included buying political advertisements on social media and organizing political rallies without revealing their Russian identities—defrauded the U.S. by interfering with our 2016 federal elections. If Trump campaign operatives played a role in these activities—for example, by strategically advising the social media disinformation efforts carried out by Russian operatives, or planning speeches or other campaign events around that disinformation—then the Trump campaign could also plausibly be a part of Russia’s broader conspiracy to defraud the United States.

These kinds of possible campaign encouragement of, or involvement in, illegal Russian activity do not just implicate conspiracy law. Russians have been indicted for violating the Computer Fraud and Abuse Act, and their conduct could potentially implicate the Wiretap Act as well. And even if the campaign did not encourage or direct the Russian hacking, individuals associated with the campaign could still be subject to prosecution for aiding and abetting—in lay terms, helping—a violation of those statutes. Aiding and abetting liability could become a factor if, for example, campaign operatives took action to encourage the Russians to publish or otherwise use the hacked materials.

Notice the first section highlighted above. It plainly states that Trump representatives would not need to be involved in hacking Democratic Party computers to be charged with collusion. Using the disinformation to plan speeches or campaign events would be enough.

The  second section highlighted above also makes it clear that Trump reps would not need to be involved in document theft to be charged criminally with collusion. Taking steps to aid and abet the Russian scheme would do the trick.

We have more coming on this topic, but for now, here are two take-home points:

(1) Bill Barr brazenly lied to the American people about the law governing collusion in the Trump-Russia probe;

(2) If the rule of law still applies in the U.S., Trump and Co. are no more exonerated on collusion than they are on obstruction of justice.

(To be continued)

Monday, April 22, 2019

Matt Osborne, the "brains" behind the Dry Alabama disinformation scam, continues to hurl insults with the intellectual capacity of a schoolyard spitball artist

Matt Osborne
Dry Alabama con man Matt Osborne, who dreamed up the misinformation scheme that helped give Democrat Doug Jones a U.S. Senate seat, apparently operates under the theory that if you find yourself in a hole, the best way out is to keep digging.

Since we showed Dry Alabama represented a violation of federal law that prohibits defrauding the United States via election interference -- blowing away Osborne's claim that he acted within the law -- the Florence, AL, resident has developed a major case of butt-hurtedness. In communicating with us via blog comments and Twitter feeds, Osborne has exhibited the intellectual heft of a third-grade spitball tosser. But no matter how bad he looks, Osborne keeps doubling down on his inane, insulting, and largely fact-free rants.

Here is Osborne's latest, proving that lack of class, taste, and intelligence is not limited to right-wing trolls. Self-professed liberals can go there, too. Osborne's latest round of invective appears on our April 17 post, where political insider Jill Simpson said Osborne and a female friend appeared at our home -- one week past my "arrest for blogging" in October 2013 -- after Osborne had asked around about gaining access to our computer.

My wife, Carol, invited them into our home, thinking they were friends and genuinely wanted to help at  a time of crisis -- and Osborne had arranged an interview for Carol with West Virginia-based Bob Kincaid and suggested she use Skype, which would have required access to our computer. That did not work out because our laptop at the time did not have a camera, which Skype would have required. Carol wound up doing the interview via phone, and to my knowledge, Osborne never even got a glimpse of our computer.

Carol and I both have doubts now that Osborne really was trying to help, particularly given his admitted ties to Doug Jones, whom we view as a "bastard-coated bastard with bastard filling" because of his apparent ties to theft of our jobs, our home, my freedom, and maybe even the loss of our apartment and breaking of Carol's arm in Missouri. Osborne left his first in a recent string of comments at 10:58 a.m. on April 17.

Matt Osborne said...
Deeper and deeper the crazy goes. Why yes, I did suggest Skype as one way to call into Bob's show -- because that was Bob's suggestion, made all the way from West Virginia. It's a suggestion he makes for ALL of his guests. Maybe go ask him?

(Or maybe he and Joe Manchin are part of this conspiracy, too? I'm sure Dana and Carol can think up some way to rope a whole 'nother state into their fabulous fantasy world of borderline psychosis.)

I never asked for a computer, never saw a computer, would not know how to hack a computer if my life depended on it. I don't work for Black Cube. I don't work for Doug Jones. You guys are just nuts, and it's plain to see for any fair-minded observer.

Roger, I now see why your brothers are desperately trying to help you. You do need help. You have got to get off this crazy train.

Well, what do you know, Osborne thinks my bothers -- David (the inept lawyer) and Paul (a radiology tech at Mercy Hospital), both of Springfield, MO -- have been trying to help Carol and me. How on earth did he come up with that idea?

legalschnauzer said...
Matt Osborne @10:58 --

Here is something that might come as a shock to you: When you have admitted to engaging in dishonest and deceptive behavior -- even violating federal law re: interference in a U.S. election -- people might tend to be skeptical about your word. When you've admitted to using people to get your political way, it's natural for me to wonder if you tried to use Carol. That you might have done it by entering my home, without my knowledge or approval, is alarming. Do I resent it? I sure as hell do. Will I consider all of my legal options in this matter? I sure as hell will. A few other points:

(1) No one said you tried to hack our computer. The suggestion was that you were interested in gaining access to it, and you don't deny having asked around about it. If the computer were on and right in front of you -- as if preparing it for use with Skype -- hacking would not be necessary.

(2) Who told you my brothers were trying to "help" me? You certainly didn't get that from me. Their ways of "helping" include: (a) Trying to have us declared wards of the state in a case so lacking in facts that even the State of Missouri dismissed it; (2) Lying about me making a threatening call to 911, which caused cops to storm our house with assault weapons and damn near got me shot in the head; (c) The same 911 lie did lead to cops breaking Carol's arm. That's just a sampler of how my brothers have lied about us and tried to cheat us. In fact, they are trying to cheat us at this very moment. Again, you dive into a subject where your knowledge is woefully lacking. I'd suggest you work on that because you do it over and over.

BTW, you never seem to respond to certain questions or requests, so let me repeat a few items from our previous communications:

(a) Where is the Melissa Brewer receipt that I asked you to send?

(b) Are you going to get me in touch with "RogerS"? I want to speak with him.

(c) What's your girlfriend's name, and what expertise does she have that allows her to make psychological assessments of people she never has met?
 (d) Have you asked Doug Jones about the woman (not his wife) with whom he has an unusually chummy relationship? Isn't that the public's business, given Doug's exalted role in Congress? Want to see if Doug will give you an honest answer?

(e) Can you ID journalists who have "disproven" my reporting and provide links to their work? This is the 3rd or 4th time I've asked about this, and you never seem to have a response.

A final point: It's ironic that you lob insults and taunts regarding mental health at others, bu you are the one who has admitted to trying to scam others, acting in an outrageously dishonest fashion. Perhaps you should examine your own psychological profile -- the "log in your own eye" -- before noticing the speck in someone else's eye.

I dropped a little Bible stuff on Osborne, a passage that encourages self-examination, and it seemed to fly right over his head. But Osborne, by golly, still had plenty of insults to hurl. And when asked to provide evidence that might provide illumination on some of these issues, he resorted to a cover-up worthy of William Barr --without the jowls:

Matt Osborne said...

"Scam" has a specific meaning in law. It is synonymous with "fraud." IOW, to charge someone as a scammer requires that you can prove they got something of value by deceit. I got nothing of value by deceit in the Dry Alabama campaign as we never even solicited a donation. If I cared to make a court case out of this (which I do not), your use of this word would be a problem for you, not me.

I am not going to supply you with the names of third parties so that you can rope them into your crazyworld.

I am not supplying you with a receipt when I have no assurance that you will redact Melissa's address. She's had enough right wing lunatics coming after her for a lifetime, she doesn't need your crazy adding to her problems. And I will let her decide whether she wants to share anything with you.

I am not going to ask Doug Jones about his alleged girlfriend, and certainly not when that accusation comes from an unreliable source (you). I have no way of contacting him except maybe through his Senate office.

I am not in touch with RogerS and I have no idea how to contact that person, either. Can you contact some random commenter on this blog from five years ago? I don't think so. And I am no longer even at Breitbart Unmasked, so I have no way of even looking at the comment IP. That is not a rational request.

Finally, I mentioned Dana Jill Simpson exactly ONE TIME at BU, in passing, as it related to another story. The notion that Doug Jones was telling me to write hundreds of blog posts about her, on a site which focused on a completely different world from hers, is utterly insane and a perfect example of the real problem here: you people are nuts.

The word "scam" has a specific legal meaning, and Osborne suggested I was defaming him by describing him as a scammer -- even though he has admitted to multiple media outlets that he engaged in an electoral scam? This seemed like pretty weak broth:

legalschnauzer said...

Webster describes scam thusly: "a fraudulent or deceptive act or operation."

You've admitted to engaging in a scam, so it is on target to describe you as a scammer. My use of the word is proper and accurate. So far, you've shown extremely limited knowledge of the law, but if you want to cite statutory or case law to support your claim about the legal meaning of the word "scam," have at it. It would be kind of a useless exercise because I'm using scam in its normal, everyday usage -- and in your own words -- it's accurate.

A few other thoughts:

(1) Your GF isn't a third party; she came to our home uninvited and could face legal consequences for that. She wants to remain out of this to keep from sinking deeper into the shit hole you've dug for her? Probably a wise move on her part.

(2) Melissa Brewer can redact her address herself. Problem solved.

(3) My understanding is that "RogerS" still comments occasionally at BU, so I'm sure it wouldn't be hard to ask him to contact me for a conversation. That of course might be a problem if "RogerS" doesn't exist.

(4) I don't expect to get an honest answer from you or Doug Jones about his girlfriend. But that story is in the works. BTW, you've yet to give an example of "unreliable" reporting on my part, and you never ID journalists who disprove my journalism or provide links to their work. Funny how that happens.

(5) You don't say who told you my brothers were trying to "help" Carol and me. Why don't you answer that question, and again, that person would not be a third party. Have at it.

Osborne next provided some information that did illumine things a bit. But unsurprisingly, he twisted it in what seems to be his standard disingenuous way.

(To be continued)

Friday, April 19, 2019

Contrary to AG William Barr's claims about administration's cooperation with investigators, some Trump officials discarded "relevant communications" that might have changed outcome of Mueller Report

William Barr at press conference

U.S. Attorney General William Barr, at a press conference yesterday morning before release of the Mueller Report, repeatedly proclaimed there was no collusion and no obstruction by anyone connected to the Trump administration in the Russiagate scandal. Barr based his obstruction finding largely on a determination that "the White House fully cooperated with the Special Counsel’s investigation, providing unfettered access to campaign and White House documents, directing senior aides to testify freely, and asserting no privilege claims."

Barr went even further, stating: "The President took no act that in fact deprived the Special Counsel of the documents and witnesses necessary to complete his investigation. Apart from whether the acts were obstructive, this evidence of non-corrupt motives weighs heavily against any allegation that the President had a corrupt intent to obstruct the investigation."

There is a slight problem with the words in quotation marks above -- they aren't true, and the Mueller Report itself says so.

Of course, Barr ignores the most obvious evidence that Trump had "corrupt intent to obstruct the investigation" -- that Trump refused to sit for an interview with the the Special Counsel's team, plus Trump's written answers to questions have been described as "inadequate." But Barr's cherry-picking, obviously designed to deceive the public, goes way beyond that.

On page 10, the Mueller Report addresses a number of events that point to contacts between Trump Campaign representatives and Russian officials. In other words, this was about possible collusion, also referred to as "conspiracy" and "coordination." Specifically addressed were contacts between Russian Ambassador Sergey Kislyak and Trump officials, including former U.S. Sen. Jeff Sessions (R-AL). The report concludes that these interactions were "brief," "non-substantive," or in "passing."

Was the Mueller team, however, able to reach these conclusions based on a complete evidentiary record? Did they, as Barr claimed, have "unfettered access" to key documents? No, they did not. From the last two paragraphs on page 10 of the Mueller Report:

Further, the Office learned that some of the individuals we interviewed or whose conduct we investigated-including some associated with the Trump Campaign---deleted relevant communications or communicated during the relevant period using applications that feature encryption or that do not provide for long-term retention of data or communications records. In such cases, the Office was not able to corroborate witness statements through comparison to contemporaneous communications or fully question witnesses about statements that appeared inconsistent with other known facts.

Accordingly, while this report embodies factual and legal determinations that the Office believes to be accurate and complete to the greatest extent possible, given these identified gaps, the Office cannot rule out the possibility that the unavailable information would shed additional light on (or cast in a new light) the events described in the report.

In other words, some sources -- including some associated with the Trump Campaign -- intentionally took steps to discard "relevant communications" (emails, text messages?) ensuring the Special Counsel did not have a complete record. And the Mueller team admits these gaps in the record could, if filled, provide important new light on the investigation's outcome.

Here are just a few questions that immediately come to mind:

* Who were the individuals who deleted information or obscured it by using certain communications apps?

* Did these individuals make such deletions on their own or did someone instruct them to do it?

* Would it be possible for computer-forensics experts to recover all, or some, of the missing data?

* Could such deletion constitute a crime under the Federal Records Act or similar statute? Many conservatives thought Hillary Clinton committed a felony regarding retention of emails? What about when members of the Trump Administration deliberately discard "relevant communications" that are public property?

Barr's misstatement about Team Trump's response to the collusion investigation was not the biggest whopper the AG dropped on the American public yesterday. There is at least one other that is much bigger than that. We will have details in an upcoming post.