Federal indictment on child-porn charges against Missouri resident Scott Wells is void of specifics, meaning it is deficient and due to be dismissed

Scott J. Wells

An indictment, as a matter of law, is about specific allegations that a crime was committed and a grand jury's determination that the accused committed it. Yes, a recitation of the elements in a particular statute often is part of an indictment. But that, alone, is not sufficient. The true bill, which is the grand jury's written decision, must provide specifics about the offense so the accused can prepare a defense against it.

Why then does the indictment in the child-pornography case against Missouri resident Scott J. Wells contain not a single word of specifics about what he allegedly did? How can Wells defend himself when the indictment does not tell him what unlawful actions he supposedly took -- in this specific case, not in a general sense? (The indictment is embedded at the end of this post.)

The answer: Wells cannot prepare a defense based on an indictment that is so woefully deficient it must be dismissed. Will Brady Musgrave, the third court-appointed lawyer to represent Wells, file a motion to dismiss the indictment, end this hoax of a case, and free his client from more than two years of detention that is unsupported by probable cause? In fact, we've already shown the feds have charged Wells with an offense that would be physically impossible for him to commit -- and the case should be dismissed on that ground, too.

Let's take a look at the indictment in U.S. v. Wells. There isn't much too it; it's one long run-on sentence that quotes directly from the relevant statute [18 U.S.C. 2252(a)(2) and (b)(1)]:

INDICTMENT 

THE GRAND JURY CHARGES THAT:
Beginning on an unknown date, at least as early as December 15, 2016, and continuing through March 22, 2017, said dates being approximate, in Greene County, and elsewhere in the Western District of Missouri. SCOTT JAMES WELLS, the defendant knowingly received and distributed any visual depiction that had been mailed and shipped and transported in interstate commerce, and which contains materials which had been so mailed and shipped and transported by any means, including by computer, the production of which visual depiction was of such conduct, all in violation of Title 18, United States Code, Sections 2252(a)(2) and (b)(1).

Two key points:

(1) If you click on the link above to the statute, you will see that the true bill against Scott Wells pretty much tracks the language exactly -- like a student copying off the smart kid's paper in math class. Is there any allegation in it that specifies an offense that Scott Wells committed? I can't find a single word. If any reader can find a specific offense involving Scott Wells, please let me know. Without even the hint of specifics, the indictment is deficient and due to be dismissed.

Brady Musgrave

(2)  The grand jury apparently glossed over the feds' criminal complaint, which alleges Wells uploaded two separate image files at exactly the same time, down to the second. That, of course, is physically impossible, meaning the grand jury had insufficient evidence before it to return an indictment.

What does federal law say about the sufficiency of an indictment? From Hamling v. United States, 418 U.S. 87 (1974):

"Undoubtedly the language of the statute may be used in the general description of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged."

In other words, reciting the language of the statute is fine, but it's not enough. The accused must be informed of a specific offense -- but the Wells grand jury failed to do that. Why does this matter? Let's consider the language from United States v. Hess, 124 U.S. 483 (1888):

The statute upon which the indictment is founded only describes the general nature of the offence prohibited; and the indictment, in repeating its language without averments disclosing the particulars of the alleged offence, states no matters upon which issue could be formed for submission to a jury. The general, and, with few exceptions, of which the present is not one, the universal rule, on this subject, is, that all the material facts and circumstances embraced in the definition of the offence must be stated, or the indictment will be defective. No essential element of the crime can be omitted without destroying the whole pleading. The omission cannot be supplied by intendment, or implication, and the charge must be made directly and not inferentially, or by way of recital. . . .

The absence of all particulars of the alleged scheme renders the count as defective as would be an indictment for larceny without stating the property stolen, or its owner or party from whose possession it was taken.

"It is an elementary principle of criminal pleading, that where the definition of an offence, whether it be at common law or by statute, `includes generic terms, it is not sufficient that the indictment shall charge the offence in the same generic terms as in the definition; but it must state the species; it must descend to particulars.' . . .  The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent; and these must be set forth in the indictment with reasonable particularity of time, place, and circumstances."

Can the prosecutors in Wells seek to amend the indictment to clean up the mess they have made? In general, no. From justice.gov:

The general rule is that indictments cannot be amended in substance. "An amendment to an indictment occurs when the charging terms of an indictment are altered." United States v. Cancelliere, 69 F.3d 1116, 1121 (11th Cir. 1995). This follows from the fundamental distinction between the information and the indictment . . . which must be returned by a grand jury. If the indictment could be changed by the court or by the prosecutor, then it would no longer be the indictment returned by the grand jury. Indeed, in Russell v. United States, 369 U.S. 749, 769 (1962), the Court pointed out that a consequence of amending the indictment is that the defendant "could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him." "Thus, the Fifth Amendment forbids amendment of an indictment by the Court, whether actual or constructive." United States v. Wacker, 72 F.3d 1453, 1474 (10th Cir. 1995).

So, the feds are stuck with their deficient indictment in Wells. If attorney Brady Musgrave does his job -- and U.S. Magistrate David P. Rush has a hint of integrity -- the charges against Wells will be dismissed, and his incarceration of more than two years should end, pronto.

The whole sordid story suggests chief prosecutor James J. Kelleher, and perhaps others in the Western District of Missouri, should be criminally investigated for allowing such a patently bogus case to be move forward.