Tuesday, April 16, 2019

How do prosecutors fare in U.S. v. Wells on four-factor test for proving "knowing" conduct in a case of alleged receipt, possession, or distribution of child porn?

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How can prosecutors prove an accused acted "knowingly" in a child-pornography case? Federal courts have pointed to at least four factors that are relevant to such an inquiry. Our research indicates at least two additional factors come into play. But for now, we will focus on the four-factor test that various federal courts tend to cite -- and see how they stack up in the pending U.S. v. Scott J. Wells case in Missouri.

The four-factor test perhaps is best explained in a case styled U.S. v. Miller, 527 F. 3d 54 (3rd Cir., 2008):

We first conclude that there is substantial, circumstantial evidence supporting the inference that Miller downloaded child pornography, thus satisfying the act-element of receiving child pornography . . . . The jury found Miller guilty of possessing a zip disk containing child pornography, which was among the twenty-two zip disks stored in the basement with Miller's computer. . . .

More difficult is the question whether Miller received the images knowingly. Other courts, confronting this question, have deemed at least four factors relevant to this inquiry: (1) whether images were found on the defendant's computer, see United States v. Irving, 452 F.3d 110, 122 (2d Cir.2006); (2) the number of images of child pornography that were found, see id. (finding defendant's possession of 76 images relevant); (3) whether the content of the images "was evident from their file names," United States v. Payne, 341 F.3d 393, 403 (5th Cir., 2003) (finding "number of images in [defendant's] possession, taken together with the suggestive titles of the photographs" established knowing receipt); and (4) defendant's knowledge of and ability to access the storage area for the images.US v. Romm, 455 F. 3d 990 (9th Circuit, 2006). . . .

In U.S. v. Miller, the government did not fare so well on the four-factor test, proving the accused acted knowingly on only No. 4, which involves a defendant's ability to access a storage area for images. How will the government do in U.S. v. Wells, based on the criminal complaint/affidavit filed in the case? (The complaint/affidavit is embedded at the end of this post.) With an honest judge and a competent jury (always big "ifs"), we suspect the government will fare even worse than it did in Miller. Let's check our scorecard:

(1) Were images found on Wells computer?

In Miller, the appellate court found: "The government adduced no direct, forensic evidence that the images were downloaded onto Miller's computer."

In the criminal complaint/affidavit for U.S. v. Wells, the government makes no mention of Wells downloading or saving child-pornography. In fact, the case began with two "Cyber Tips" from Facebook, with the government claiming Wells' "uploaded" images of suspected child pornography. The term "upload" suggests the images originated with Wells, and he placed them on the Web via Facebook. But that runs counter to all other evidence we've seen in the case. Wells has said that he received the images, unsolicited, from a woman in Tennessee named Kara Adkins, and he thought they were of her 19-year-old daughter. We see nothing in the affidavit to suggest the government can counter Wells' version of events. Either way, there appears to be no "direct, forensic evidence" that Wells downloaded anything.

(2) How many images were found on Wells' computer?

In Miller, the appellate court found: "The second factor, the number of images of child pornography found, likewise does not weigh in the government's favor in light of the overwhelming number of adult images that were found. The government presented evidence pertaining to only twenty of the 1200-1400 images found on the zip disk, and the District Court subsequently determined, in the process of sentencing Miller, that only eleven of these images constituted child pornography. Miller contended that he was unaware of the existence of these images . . .

The Wells case started, according to the government, with Facebook reporting two suspect images -- although it's possible only one image was involved, with Adkins sending it to Wells, and Wells quickly sending it back to her.

Did the government have probable cause to search Wells' home, based on two images (maybe only one)? That should be the subject of a Motion to Suppress Evidence, as obtained via an unlawful search. That search, according to the feds, produced 60 images of child porn on Wells' laptop, but the affidavit provides no information on where the images were found on the computer or whether Wells did anything to put them there. The search allegedly turned up 375 images of child erotica (nude children), but that, as a matter of law, does not constitute child pornography.

Bottom line: The Wells case might turn on one or two suspect images, while the Miller court found 11 images were not sufficient to prove knowing intent.

(3) Was content of the Wells images evident from file names?

In Miller, he appellate court found: "Nor does the third factor, whether the content of the images 'was evident from their file names,' weigh in the government's favor. . . . While there is strong evidence that Miller eventually came to view some of the images of child pornography that were on the disk, and thus to knowingly possess the images, this evidence does not lend much support to the inference that Miller knowingly downloaded the images."

In U.S. v. Wells, the affidavit makes no mention of a file name being affixed to the two (or one?) Facebook images. That suggests, if Kara Adkins uploaded the file and sent it to Wells, he would have had no way of knowing what it was. As for images allegedly obtained via a dubious search, the affidavit makes no mention of file names being affixed to any of them.

Bottom line: It doesn't look like the government is going to get very far with evidence against Wells involving file names.

(4) Did Wells have the knowledge or ability to access a storage area for the images?

This goes to the "sophisticated computer user" element, and the Miller court found the government was on fairly solid ground here: "Turning to the fourth factor, whether the defendant had knowledge of and an ability to access the storage space for the images, it is clear that Miller had access to the images on the zip disk. Indeed, Miller admitted to storing image files, including adult pornography, on the disk."

As for U.S. v. Wells, the affidavit makes no mention of Wells being the kind of user who would know how to store and access images on a thumb cache, browser cache, hard drive, or any other part of a computer's "guts." The affidavit claims "several child pornography images" were found on the thumb cache in Wells' laptop, but it says nothing about what makes them meet the legal definition of child porn, how they got on the thumb cache, or (most importantly) whether Wells knew they were there and had the ability to access them.

Based on its own affidavit in Wells, the government appears to strike out on all four tests to prove knowing conduct in a child-porn case. What about additional tests that we've seen used in other federal cases. We will address those in an upcoming post.

(To be continued)

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