Tuesday, July 30, 2019

Feds have no evidence that Missouri resident Scott J. Wells sought out child-porn images or took "affirmative actions" to receive them, but they seem determined to proceed with a baseless case anyway

Scott J. Wells
The federal child-pornography case against Missouri resident Scott J. Wells could come down to a simple question: Did Wells ask anyone to send him images of child pornography?

We already have shown the Wells case should be dismissed, and never should have been brought, based on a number of grounds, which include: (1) The government has charged Wells with an offense that would be physically impossible to commit; (2) The feds do not even allege that Wells took some of the most common actions that prove "knowing" receipt or distribution of child porn -- such as use of file-sharing programs or subscriptions to Web sites that sell unlawful images (also known as contraband). (3) The feds launched their search of Wells' home, leading to his arrest, based on two images sent from Facebook to the National Center for Missing and Exploited Children (NCMEC); although the images sound almost identical, and Wells has said a Tennessee woman named Kara Adkins sent it to him unsolicited, and he sent it back when he realized it appeared to be a naked photo of Adkins' daughter, whom Wells understood to be 19 years old (not a minor); (4) There is no evidence in the government's criminal complaint -- embedded at the end of this post -- that Wells knowingly downloaded and saved the Adkins image, or any other unlawful image to his computer.

As for the number of images found on a computer in a child-porn case, the criminal complaint in U.S. v. Wells suggests the following: (1) The government repeatedly -- and apparently incorrectly -- uses the term "upload" to describe Wells' actions, which indicates he did not download (or save) anything improper to his computer; (2) The government based its search on two (maybe one) images, and courts have found in U.S. v. Miller, 527 F. 3d 54 (3rd Cir., 2008) that 11 images were not enough to be relevant for purposes of probable cause in a child-porn investigation. From our April 2019 post about the Miller case:

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 . . .

As you can see, these cases can become fairly involved. But many of them, including U.S. v. Wells, can be resolved with a simple question: Did the accused ask anyone to send him child porn, did he seek it ought in any way and download it to his computer to take "control and dominion" over it, did he take "affirmative actions" to seek out unlawful images. Several court cases spell out the law on this. One is U.S. v. Kuchinski (9th Cir., 2006), which held:

We have made it plain that a person does knowingly receive and possess child pornography images when he seeks them out over the internet and then downloads them to his computer. In fact, we have declared that, “[i]n the electronic context, a person can receive and possess child pornography without downloading it, if he or she seeks it out and exercises dominion and control over it.” Romm, 455 F.3d at 998;  see also United States v. Tucker, 305 F.3d 1193, 1204 (10th Cir.2002)

Another such case is U.S. v. Stulock (8th Cir, 2002), which held:

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. 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.

A review of the government's criminal complaint -- embedded below -- shows little or no evidence that Scott Wells asked to receive child-porn images, sought them out in any way, or took "affirmative actions" to assert "dominion and control" over them.

This adds to the evidence that the Wells case, by law, must be dismissed. But prosecutors (led by James J. Kelleher), apparently wanting to avoid the embarrassment and possible legal repercussions of bringing a baseless case, have dug in their heels and seem to be determined to proceed, whether they have a legit case or not. And Brady Musgrave, Wells' third court-appointed lawyer, has made it clear he has no intention of filing any pretrial motions that would actually defend his client.

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