Activist Matt Osborne and his ties to Doug Jones campaign -- plus his actions in Dry Alabama false-flag project -- raise red flags here at Legal Schnauzer

Matt Osborne

About a week after my "arrest for blogging" in 2013, Alabama activist Matt Osborne contacted my wife, Carol, and asked if he could come to our home in Birmingham. Carol gave the OK, and Osborne and a friend named Melissa Brewer showed up at our door with "supplies" (canned goods, cat food, over-the-counter meds, etc.) -- and they took photos and videos of the area in our basement where Shelby County deputies had beaten and abducted me.

I had been online friends with Matt for a while, generally sharing his liberal views and keeping up with his writings at various Web sites -- mostly Osborne Ink and Breitbart Unmasked. I saw him as an important Web-based voice -- a talented, intelligent guy, who was pugnacious enough to do battle with underhanded conservatives, such as the felon poser, and gay-sex troller Ali (Akbar) Alexander and his nutty National Bloggers Club.

For about four years, Carol and I have assumed Osborne came to our home in good faith, from a genuine intention to help at a time of crisis. But I started to have doubts about that when Osborne contacted me in October 2017 -- about six weeks before the Doug Jones-Roy Moore U.S. Senate special election -- and informed me he was connected to the Jones campaign in some capacity, suggesting I should retract a post about a Russian-bot attack on the Moore campaign's Twitter account.

Why did Osborne's ties to Doug Jones alarm me? Well, I've known since spring 2008 that Doug Jones is a shady, ethically challenged guy -- mainly because of his lawyer-tribe ties to despicable Republican thug Rob Riley, the oily son of former Gov. Bob Riley. In fact, I was cheated out of my job at the University of Alabama at Birmingham (UAB), where I had worked for almost 20 years, after I reported on the dubious reasons Rob Riley joined Jones in a lawsuit against HealthSouth -- a story that originated with Sam Stein, of Huffington Post.

For the record, I don't think it's a coincidence that UAB concocted a bogus scheme to fire me -- falsely claiming I was blogging at work, contrary to the words of their own IT expert (Sean Maher) who had examined my work computer activity -- not long after my report on Jones, Riley, and the HealthSouth case. My blogging likely was seen as a threat to Jones and Riley's share of what would become $51 million in legal fees from the HealthSouth case, money that probably helped fund Jones' U.S. Senate campaign in 2017.

I also learned that Jones is a world-class backstabber, with a string of victims that include former Gov. Don Siegelman, late VictoryLand owner Milton McGregor, and Dothan developer Ronnie Gilley. Also, it became clear that Jones was prone to look the other way at the crimes of moneyed elites, such as University of Alabama honcho Paul Bryant Jr., whose company was tied to a massive insurance-fraud case in Pennsylvania.

In short, Doug Jones is a "bastard-coated bastard with bastard filling," and I've come to believe anyone affiliated with him has a shaky moral compass, poor judgment, a strong case of naivete -- or a combination of the three.

Doug Jones

My concerns about Osborne's actions involving Carol and me grew with recent reports that he was a central figure in "Dry Alabama," a disinformation project designed to boost Doug Jones in the Senate race by falsely claiming Roy Moore supported a statewide ban on alcohol -- never mind that it's hard to see how a U.S. senator could provide political muscle on a state issue such as alcohol sales and consumption.

What about specifics that might lead us to have qualms about Matt Osborne? Let's consider:

The "RogerS" scam

Evidence suggests my arrest, at least in part, was driven by a narrative involving a mysterious character called "RogerS." Here's how we explained it in a post dated July 13, 2015:

Members of a right-wing bloggers' club concocted the notion that I was encouraging a federal lawsuit against them, and other conservative figures, and they wrote about it obsessively in the days leading to, and following, my October 2013 arrest.

At the heart of the matter is a commenter at a progressive Web site who goes by the handle "RogerS" and appears to have a fair amount of knowledge about legal matters--in fact, he was encouraging liberal activist Brett Kimberlin to file a federal RICO lawsuit against members of the bloggers club and other individuals on the right. When Kimberlin did, in fact, file a RICO suit, I wound up in jail roughly one week later. Coincidence? That's hard to say, but let's look at what we do know.

In certain corners of the blogosphere, it became popular to suggest that "RogerS" and Roger Shuler (me) were one and the same--even though I had nothing to do with the comments in question, I was not aware of any possible federal lawsuit, and I have no clue about the identity of "RogerS." Still, evidence suggests I might have paid a high price--loss of my freedom for five months and eventual loss of our home-- for something that did not involve me.

As for the National Bloggers Club, it operates under a media umbrella created by the late right-wing publisher and provocateur Andrew Breitbart--and its president, Ali A Akbar, has a criminal history and admitted connections to former Bush White House adviser Karl Rove. Akbar also has a history of trolling for gay sex on adult Web sites.

Where did RogerS originate? We've explained that, too:

"RogerS" apparently made his first appearance in a September 18, 2013, post at the progressive blog Breitbart Unmasked (BU). Interestingly, that was one day after I broke the Bill Pryor gay-porn story. "RogerS" commented about a possible lawsuit that Kimberlin was planning against a number of individuals connected to the Breitbart Network.

Another commenter on the same post replied: "RogerS is one of two very cool people in Alabama . . . Everyone should read his latest: A very "stiff" portrayal of a federal judge." That's the first sign I can find of connections forming between "RogerS," Roger Shuler, and the Bill Pryor story--and it came from a commenter at a liberal Web site.

So, RogerS grew from Breitbart Unmasked, and BU's editor at the time was . . . Matt Osborne. Let's consider a few of the questions that poses:

Ali Akbar on Grindr gay-sex app

(1) Is RogerS even a real person? Could he be a "false flag" that Osborne -- or someone connected to him -- created? After all, "Dry Alabama" proves Osborne has a taste for false-flag operations.

(2) Was RogerS created to antagonize Ali (Akbar) Alexander and his right-wing blogging loons and scare them into having me falsely arrested -- probably with the assistance of the Alabama State Bar?


Matt Osborne's in-home visit while I was in jail

Was Osborne's visit to our house, while I was locked up, an act of good faith, or one with ulterior motives?

Well, we know my arrest, on the surface, was driven by a bogus defamation lawsuit that Rob Riley and his lobbyist "gal pal" Liberty Duke filed against me. We know Rob Riley and Doug Jones have been aligned in the legal tribe for more than 10 years. And we know Matt Osborne has been aligned with Doug Jones at least since 2017.

Could Osborne's alliance with Jones date back to 2013 and beyond? Could Jones, or someone tied to him, have directed Osborne to go to our house as a ruse, designed to assist Rob Riley's arrest scheme -- and perhaps stand up for Bill Pryor's "honor"?

Why would someone want to have access to our house just days after my arrest? I can think of all kinds of reasons, most of them dark and disturbing. I like to think that Matt Osborne would not go along with such a scheme, but we now know he engaged in deceptive election practices on Doug Jones' behalf, so what would keep Osborne from entering our home under false pretenses -- designed to assist Doug Jones and his lawyer pal, Rob Riley, perhaps in their shared desire to abuse the reporter who outed Bill Pryor as a closeted gay? By the way, Jones long has professed his undying respect for Pryor.

Matt Osborne has proven he engaged in dishonest activities that deceived Alabama voters -- a false-flag scheme to benefit Doug Jones. I see no reason why he would not engage in a false flag directed at Carol and me.

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 www.hairless-lolita.com, www.preteenlinks.com, www.littlepussy.com, www.peachfuz.com, and www.lolitahardcore.com.

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)

Shane Cantin, the Missouri lawyer who told his client that he had no defense and would be convicted on child-porn charges, is removed from Scott Wells case

Shane Cantin

Shane Cantin, the Missouri lawyer who told his client via a letter that he had no defense and would be convicted of federal child-pornography charges, was removed from the case yesterday.

The ruling from U.S. Magistrate David P. Rush came after Cantin filed a Motion to Withdraw on Monday (2/4), and defendant Scott J. Wells filed a pro se Motion to Vacate Counsel -- including a copy of Cantin's letter -- on Tuesday. (The Cantin letter is embedded at the end of this post; Cantin filed his withdrawal motion on the same day I reported about his letter to Wells.)

Rush, during a hearing at the federal courthouse in Springfield, clearly was displeased by the turn of events and asked Wells a series of pointed questions about why he wanted Cantin off the case -- as if being told your own lawyer was convinced of your guilt and had no real plans to defend you wasn't enough. Wells pointed out that Cantin had done nothing to have him released from detention, where he has been for almost two years, without being convicted of anything; that Cantin had not taken any depositions, and had not lined up any expert or character witnesses.

Prosecutor James J. Kelleher,  in what probably sounds like an absurdity to most normal humans, is seeking to have complaining witnesses from an earlier child sexual abuse case he brought in state court against Wells -- that's the one where my brother, David Shuler, provided ineffective assistance of counsel, and a conviction was overturned when one witness was found to have lied under oath about scars on Wells' penis.

Kelleher has filed the motion under Federal Rule of Evidence 414, and if granted, it would mean Wells could be convicted based on allegations with which he is not charged now -- and for which his earlier conviction was overturned. A number of legal scholars and commentators have written scathing reviews of Rule 414, including this article for the Alabama Law Review. An article in the William and Mary Bill of Rights Journal calls Rule 414 "fundamentally unfair," violating the Due Process Clause of the U.S. Constitution.

For those interested in a scientific response to the dubious politics that led to Rule 414, we strongly recommend "Empirical Fallacies of Evidence Law: A Critical Look at the Admission of Prior Sex Crimes," from the University of Cincinnati Law Review.

An in-depth look at the problems with Rule 414 is an issue for another day. But for now, we can say that Cantin did file a Motion to Preclude the Government from Using 414 Evidence. But other than that, and his Motion to Withdraw, the record shows Cantin has done pretty much nothing on U.S. v. Wells. God only knows how much he will charge taxpayers for his "services."

In a moment that almost made this reporter guffaw, Judge Rush said he felt Cantin had "vigorously represented" Wells -- and that the case clearly did not amount to "ineffective assistance of counsel."

On the first point, a check of the court docket and Cantin's own letter show Rush's assessment is way off target. On the second point, I agree with Rush. Cantin's work on Wells' behalf would have to improve to reach the "ineffective assistance of counsel" level. It could more accurately be deemed "no assistance of counsel."

Rush did not say who he would appoint as Wells' new lawyer and gave no clue when that decision might be forthcoming. It appears the current trial date of Feb. 12 will have to be changed.

Porn star Traci Lords helped forge a path to the United States Supreme Court, which should lead to justice for Scott J. Wells in Missouri child-pornography case

Traci Lords is one of the most famous actors in the history of adult films -- right up there with Linda Lovelace, Harry Reems, Ron Jeremy, Christy Canyon, John Holmes, and other luminaries. Lords' fame, to a great extent, grew from a court case. In a roundabout way, she helps prove that Missouri resident Scott J. Wells is innocent of federal child-pornography charges against him -- and he never should have been arrested or detained. Wells faces a trial in the Western District or Missouri, currently set for Feb. 12.

The U.S. Supreme Court (SCOTUS) found in a case styled United States v. X-Citement Video Inc., 513 U.S. 64 (1994) that the accused in a child-porn case cannot be found guilty unless the government proves he knew an individual in a suspect image was a minor (under 18 years of age). The feds' own documents in the Missouri case show Wells did not know the female depicted in a image sent to him via Facebook -- without him asking for it or knowing of its contents -- was a minor. (The criminal complaint and affidavit in U.S. v. Wells is embedded at the end of this post.)

Prior to X-Citement Video, the accused in a child-porn case could be convicted if he "knowingly received, possessed, or distributed a visual depiction of a minor engaging in sexually explicit conduct;" The term "knowingly" had been found to modify only the verbs "receiving," "distributing," etc. SCOTUS found in X-Citement Video that "knowingly" also modifies the word "minor." In other words, the accused now must know the image depicts a minor in order to be convicted.

Here is the court's central finding in X-Citement Video:

The Protection of Children Against Sexual Exploitation Act of 1977, as amended, prohibits the interstate transportation, shipping, receipt, distribution, or reproduction of visual depictions of minors engaged in sexually explicit conduct. 18 U. S. C. § 2252. The Court of Appeals for the Ninth Circuit reversed the conviction of respondents for violation of this Act. It held that the Act did not require that the defendant know that one of the performers was a minor, and that it was therefore facially unconstitutional. We conclude that the Act is properly read to include such a requirement. . . .

For all of the foregoing reasons, we conclude that the term "knowingly" in § 2252 extends both to the sexually explicit nature of the material and to the age of the performers.

That's a fancy way to say that Scott Wells (and others charged under Sec. 2252) cannot be convicted unless he knew the female in the Facebook photo was under age 18. And the following segment from the feds' affidavit shows he did not:

Wells admitted to communicating with another user with the Facebook account name of Kara Adkins, but claimed he never sent the user any images. Wells then stated that he quit communicating with Adkins because she sent him an image of a 19-year-old showing her butt.

Is there anything in the affidavit to suggest the feds can prove the girl was not 19, that she was under age 18? More specifically, can they prove Wells had no reason to believe she was 19. I don't see it.  That means, in essence, that the feds have no case -- that Wells never should have been charged or detained for two years, with his home searched -- producing evidence that likely should be suppressed as obtained contrary to the Fourth Amendment. Will Wells' court-appointed attorney, Shane Cantin of Springfield, pursue such defenses? We have asked via email, but Cantin has not responded. He has told Wells in writing that there are no defenses to the charges against him.

How does Traci Lords enter the picture? Well, she was at the heart of the X-Citement Video case. From the SCOTUS opinion, written by William Rehnquist (citations omitted):

Rubin Gottesman owned and operated X-Citement Video, Inc. Undercover police posed as pornography retailers and targeted X-Citement Video for investigation. During the course of the sting operation, the media exposed Traci Lords for her roles in pornographic films while under the age of 18. Police Officer Steven Takeshita expressed an interest in obtaining Traci Lords tapes. Gottesman complied, selling Takeshita 49 videotapes featuring Lords before her 18th birthday. Two months later, Gottesman shipped eight tapes of the underage Traci Lords to Takeshita in Hawaii.

These two transactions formed the basis for a federal indictment under the child pornography statute. The indictment charged respondents with one count each of violating 18 U. S. C. §§ 2252(a)(1) and (a)(2), along with one count of conspiracy to do the same under 18 U. S. C. § 371. Evidence at trial suggested that Gottesman had full awareness of Lords' underage performances. . . . ("Defendants knew that Traci Lords was underage when she made the films defendant's [sic] transported or shipped in interstate commerce"). The District Court convicted respondents of all three counts. On appeal, Gottesman argued, inter alia, that the Act was facially unconstitutional because it lacked a necessary scienter requirement and was unconstitutional as applied because the tapes at issue were not child pornography. The Ninth Circuit remanded to the District Court for reconsideration in light of United States v. Thomas, 893 F. 2d 1066 (CA9), cert. denied, 498 U. S. 826 (1990). In that case, the Ninth Circuit had held § 2252 did not contain a scienter requirement, but had not reached the constitutional questions. On remand, the District Court refused to set aside the judgment of conviction.

On appeal for the second time, Gottesman reiterated his constitutional arguments. This time, the court reached the merits of his claims and, by a divided vote, found § 2252 facially unconstitutional. The court first held that 18 U. S. C. § 2256 met constitutional standards in setting the age of majority at age 18, substituting lascivious for lewd, and prohibiting actual or simulated bestiality and sadistic or masochistic abuse. . . . It then discussed § 2252, noting it was bound by its conclusion in Thomas to construe the Act as lacking a scienter requirement for the age of minority. The court concluded that case law from this Court required that the defendant must have knowledge at least of the nature and character of the materials. . . .  The court extended these cases to hold that the First Amendment requires that the defendant possess knowledge of the particular fact that one performer had not reached the age of majority at the time the visual depiction was produced. . . . Because the court found the statute did not require such a showing, it reversed respondents' convictions. We granted certiorari . . . and now reverse.

That, in a deluge of legalese, is how a twisting and turning case involving Traci Lords wound up at the nation's highest court. If a federal judge in Missouri can properly apply the law -- and that's a big if -- Scott Wells should receive some measure of justice. The charges against Wells should be dismissed, but it's unlikely prosecutor James J. Kelleher possesses the ethical infrastructure to make such a request.

Perhaps a judge will make the decision for him, especially if Wells winds up with a real defense attorney. 

Child-porn laws require that an image depict a "minor" in "sexually explicit conduct," but feds seem to be guessing at subjects' ages in the Scott J. Wells case?

Scott J. Wells

How many defenses does Scott J. Wells have to federal child-pornography charges? His lawyer, Shane P. Cantin of Springfield, MO, says in writing that he can't think of any. Without a single day of law school, I can think of about a half dozen -- under two or three broad categories.

Let's start with perhaps the most important category in this area of law -- age. Under 18 U.S.C. 2256, an image can be child pornography only if it is a "visual depiction" of a "minor" who is "engaged in sexually explicit conduct." Details on alleged crimes involving child pornography can be found at 18 U.S.C. 2252A.

But the No. 1 element, per Sec. 2256, is that the image must depict a "minor," which is described as "any person under the age of 18 years." Under U.S. law, you can view an image of stomach-churning pornography to your heart's content -- if it depicts an 18-year-old. If it depicts someone who is age 17 years, 11 months, and 28 days, you could land in the federal slammer for 20 years or more.

How tricky can this get? Let's consider two age-related elements in the federal statutes:

(1) Must prosecutors present evidence of name, address, and birth date in order to prove "beyond a reasonable doubt" that a person depicted is a minor? A reasonable person might conclude the answer is yes, given the fundamental importance of age in this area of the law. But our research indicates prosecutors, in the real world, do not have to prove age with particularity -- or, with certain judges, they can get away with guessing at it, obtaining arrest and search warrants by more or less stating, "This person looks like a minor to me." Scott Wells has been detained at Leavenworth, KS, or Missouri county jails for roughly two years, and yet, the criminal complaint offers zero proof that he ever knowingly received or distributed an image of someone under 18 years of age.

(2) After age, the second most important element in these offenses involves the term "knowingly" -- and the two elements can merge. It is not a crime to accidentally stumble upon child pornography. It also is not a crime to have child pornography on your computer, without signs that you took "affirmative actions" to obtain and control it. Both go to whether the accused acted with "knowing" intent -- and the affidavit against Scott Wells provides little or no evidence of such conduct. [The criminal complaint, including an affidavit from a Homeland Security special agent, is embedded at the end of this post.] On top of that, federal law requires that an accused "know" an image depicts a minor. We will provide details on the relevant law in an upcoming post, but for now, let's consider this mind-blowing fact: The Wells complaint contains evidence that he did NOT know a subject was a minor -- and feds apparently can't prove otherwise -- but he still has been detained for two years and faces a trial this month.

U.S. Magistrate David P. Rush

Where does age appear in the complaint against Scott Wells? The first reference comes on page 4 of the affidavit from Homeland Security Special Agent James D. Holdman. The testimony involves a CyberTip from Facebook, where Holdman alleges Wells "uploaded' a suspect file from his Facebook account. [We are pretty sure use of the term "upload" is a mistake. That implies the image originated with Wells, and he put it on the Web. All other evidence we've seen suggests the image originated with a Tennessee woman named Kara Adkins, and Wells downloaded it after she sent it -- without him asking for it or knowing what it was.] Is it scary that a federal "expert" on child pornography might not know the difference between an upload and a download? It sure is.

From the Holdman affidavit:

This affiant reviewed the image from CyberTip 16533142. The image depicts a minor, prepubescent female lying on what appears to be a bed with her pants pulled down, her legs spread and up in the air, exposing her vaginal and anal area. The minor female's hands are on her bottom.

How does Holdman know the female is a "minor" and "prepubescent"? Is he an expert on human development? He doesn't say. I've seen an affidavit from another pending child-porn case in the Western District of Missouri where the affiant declares a female is "prepubescent" based on "body shape" and "the absence of pubic hair." Body shape can determine whether someone is 16 or 18? These federal experts aren't aware that folks of all ages and genders can shave "down there," accounting for a lack of pubic hair?

Is our "justice system" warped? Holdman appears to be guessing that the female is "prepubescent," but prosecutors used this information to get arrest and search warrants from U.S. Magistrate David P Rush (Western District of Missouri). During a search of Wells' home, which almost certainly was unlawful under the Fourth Amendment, agents seized Wells' laptop computer, along with a number of other items -- some of which belonged to other family members.

Michael Costello, a computer forensic analyst (CFA) with the Springfield Police Department, conducted a review of Scott Wells' laptop, and that's where age again enters the picture. From Holdman's affidavit:

On March 23, 2017, CFA Costello began his examination of Wells' Dell Inspiron Laptop. This laptop had Windows 10 Home installed, and the only user account was "scott." [Does that mean Scott Wells was the only one to use the computer? Not necessarily. Family members say he generally signed in to it and left it running, so that any number of people could access it.] CFA Costello found 60 images of child pornography, that being children under the age of 18 engaged in sexually explicit conduct.

How did Costello know the "children" were "under the age of 18"? He doesn't say, and he provides no birth dates or identifying characteristics, and like Holdman, he appears to be guessing.

Under federal law, Costello and Holdman do not have the final say. Scott Wells' thoughts regarding age also matter, and this is from page 7 of the affidavit:

Wells admitted to communicating with another user with the Facebook account name of Kara Adkins, but claimed he never sent the user any images. Wells then stated that he quit communicating with Adkins because she sent him an image of a 19-year-old showing her butt. 

Did Kara Adkins, who apparently lives in Tennessee and is the mother of the girl in the Facebook image, tell Wells that her daughter was 19? That remains unclear, but it is clear that Wells thought the girl was not a minor. And that matters, a lot, under the law. The U.S. Supreme Court says so.


(To be continued)

Court-appointed lawyer Shane Cantin falsely says Scott J. Wells has no defense to federal child-porn charges and is destined to be convicted by a rogue prosecutor

Shane Cantin

The court-appointed lawyer for a Missouri man facing dubious child-pornography charges has stated in writing that he has no defense and "you will be convicted" Why is Shane P. Cantin, of the Springfield firm Carver Cantin and Mynarich, still on a case where he has admitted he has nothing to offer his client? If you were that client, Scott J. Wells, how would you like to hear from your lawyer that he can't think of a way to defend you?

Ironically, I don't have the first day of law school, and I can think of at least a half dozen ways to defend Scott Wells. But Shane Cantin, who touts his 25-plus years of experience on the firm Web site, can't think of anything?

Let's check out Cantin's letter, which is dated Nov. 26, 2018, and was sent to Wells at the Leavenworth Detention Center in Kansas. Wells currently is held at the Greene County (MO) Jail, with a tentative trial date set for later this month. (The full Cantin letter, in two parts, and the criminal complaint against Scott Wells are embedded at the end of this post.):

Dear Scott: 

. . . If the government is allowed to present testimony as outlined in the discovery file, you will be convicted as charged.

Notice the reference to the "discovery file." That's the evidence the feds supposedly have gathered against Wells, but at last report, he has no idea what is in it. That's because Cantin apparently has not gone over it with him, even though Wells has a Sixth Amendment right to review it. I understand that Wells has been told he cannot review the evidence because it includes images that allegedly constitute child pornography. The actual law on this is found at 18 U.S.C. 3509(m)(2):

(A) . . . a court shall deny, in any criminal proceeding, any request by the defendant to copy, photograph, duplicate, or otherwise reproduce any property or material that constitutes child pornography (as defined by section 2256 of this title), so long as the Government makes the property or material reasonably available to the defendant.

(B) . . . property or material shall be deemed to be reasonably available to the defendant if the Government provides ample opportunity for inspection, viewing, and examination at a Government facility of the property or material by the defendant, his or her attorney, and any individual the defendant may seek to qualify to furnish expert testimony at trial.

Bottom line: Wells may not reproduce the child-porn evidence, but he has an absolute right to review it, along with his attorney and any expert witness the defense intends to call -- although Cantin apparently has not bothered to line up such a witness. Let's return to the contents of Cantin's letter:

I see no viable defense to these charges. Further, because you proffered to federal agents with your prior counsel (federal public defender David Mercer), your admissions made during the proffer will be used to impeach you, should you testify at trial that you did not knowingly obtain an image of child pornography from the internet.

Admissions? Of what? The court record indicates Wells received an image via Facebook from a woman in Tennessee. He apparently did not ask for it and did not know what it was when he clicked on it. When Wells saw the content of the photo, he thought it was an image of the woman's daughter, whom he believed to be 19 years old (according to Wells' statement to officers). Wells' best course of action probably would have been to report the matter to authorities, but he chose to send the image to the daughter, hoping to provide an alert that the mother was using her image in an unlawful way. None of this constitutes a crime on Scott Wells' part, so it's not clear Cantin has familiarized himself with the bare essentials in the criminal complaint. Let's return to the letter:

The government computer forensic expert will testify that the images found on your device did not come to that device by means of "pop-ups," nor were they saved in a location on your hard drive that would suggest otherwise. Further, the internet search history is consistent with a user seeking out images of child pornography. This is consistent with the forensic expert at the Federal Defender's Office who also examined the device. You will not overcome this evidence at trial, and you will be convicted. 

Actually, the government's forensic evidence gives no clue in the criminal complaint where the images came from. We certainly see no evidence that Scott Wells took affirmative steps to put them there and exert control over them.

The government was able to review Wells' device because they used the Facebook image to get a search warrant from U.S. Magistrate David "Rubber Stamp" Rush. But there is nothing in the criminal complaint to suggest Wells took "affirmative actions" to obtain the Facebook image, and there is no proof it is of a minor, anyway. That means it's quite likely there was no probable cause for a search of Wells' home, and any evidence obtained there should be suppressed as obtained via violations of the Fourth Amendment. I asked Cantin via email if he intended to file a motion to suppress, and he has not responded -- to that or any other questions.

Scott J. Wells

Wells' search history is mostly related to topics such as "Family Nudists" and "Family Nudist Camps." The Web, of course, is filled with images of naked people, of virtually all ages, and those do not necessarily constitute child pornography. Neither do images that feds refer to as "child erotica." Here is a definition from 18 U.S. Code 2256:

“child pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where— (A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; (B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

Mere nudity or erotica, even of a minor, does not constitute child pornography. The image must involve an "identifiable" minor "engaging in sexually explicit conduct. That is defined under Sec. 2256 as follows:

“sexually explicit conduct” means—

(i) graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited;

(ii) graphic or lascivious simulated;

(I) bestiality;

(II) masturbation; or

(III) sadistic or masochistic abuse; or

(iii) graphic or simulated lascivious exhibition of the anus, genitals, or pubic area of any person;

Scott Wells has voiced concern that this federal case is being prosecuted by the same guy (James J. Kelleher) who saw his child sexual abuse charges against Wells fall apart in a state case when a complaining witness was found to have lied under oath about scars on Wells' penis. Here's how Cantin addresses that concern:

The fact that Jim Kelleher is prosecuting this case does nothing for your defense, and I am confident that the judge will not allow us to talk about that fact at trial.

Meanwhile, Kelleher reportedly plans to call the complaining witnesses from the earlier state case -- even though Wells' conviction was overturned and at least one of the witnesses was found to have lied under oath. Other complaining witnesses presented wildly inconsistent testimony, which his defense attorney at the time (my brother, David Shuler) failed to adequately pursue, resulting in a baseless conviction against Wells and a finding of ineffective assistance of counsel against Shuler. That suggests Wells could be convicted based on alleged conduct that is not even charged in the current case and for which his conviction was overturned in the first case.

In our review of the court file, we can find no proof that Scott Wells knowingly received or distributed any image that would constitute child pornography, and we see no proof that the images even involve "identifiable minors." Here is the parting shot from Shane Cantin, the lawyer who can't figure out a defense for his client:

As outlined by your prior attorney, and during our discussions, you will receive a substantially longer sentence if convicted after a trial, and a potentially shorter sentence following a guilty plea and acceptance of responsibility. I know this is not what you want to hear, but it is my obligation to give you my legal opinions based upon my review of your file and experience in federal court. 

Gee, does that sound like Cantin is trying to scare Wells into pleading guilty -- even though Kelleher stated at a recent pre-trial hearing that no such plea offer is on the table? If the government's case is so strong, why is Cantin trying to intimidate Wells into a guilty plea? As for Cantin's obligations, what about the one where he is obliged to defend his client? It appears he has no intention of doing that.


(To be continued)

Alabama governors have a history of throwing taxpayer dollars at Australian ship-building company that now is under federal and international investigations

Bob Riley

Alabama governors have poured more than $30 million of taxpayer funds into a Mobile ship-building company that is under federal and international investigations for possible financial wrongdoing.

The gravy train for Austal USA began in 2008 when Bob Riley gave $5 million in economic-development grants to the company. Riley repeated that gift in 2009, with Robert Bentley kicking in $5 million in 2012 and $10,255,470 in 2013. According to an Alabama Political Reporter (APR) post dated June 9, 2014, Bentley added another $4 million in the first quarter of that year.

From the APR story, titled "The High Cost of Public Corruption":

The lucrative nature of these taxpayer fund so-called “job creation projects,” has even lured former Gov. Bob Riley to become one of the State’s most visible lobbyist. Just seven months after leaving office in 2011, Riley launched Bob Riley and Associates and registered as a lobbyist, along with his daughter, Minda.

Riley has been involved with the hundred million dollar Airbus deal in Mobile as a registered lobbyist for EADS North America.

Riley is also a lobbyist for Austal USA, LLC, a company that, as governor, he gave $5 million in economic development grants, in 2008, and $5 million again in 2009.

The payments stopped in 2010 (an election year) and did not resume in 2011,(budgeted during election year session). The payments to Austal began again under Gov. Bentley’s administration with the state giving $5 million in 2012 and $10,255,470.9 in 2013. So, far in 2014, Austal has received almost 4 million in grants and benefits.

We do not have figures for the past four years, so it's likely the total figure going to Austal USA is way more than $30 million.

The Austal investigation began last week at its international headquarters in Henderson, Western Australia. The next day came press reports that officials with the Department of Defense, the NCIS and the Defense Criminal Investigative Service were spotted at the Austal USA yard in Mobile.

What could the Austal USA investigation mean for Alabama? The APR article from 2014, perhaps unknowingly, looked into the future and provided some possible insight. Warning: It's not a pretty picture:

A recent study in Public Administration Review shows the negative impact of public corruption on a state’s economic future. Alabama is listed in the top ten most corrupt states in America.

In a report entitled, “The Impact of Public Officials: Corruption on the Size and Allocation of U.S. State Spending,” authors Cheol Liu of the City University of Hong Kong and John L. Mikesell of Indiana University, Bloomington define public corruption as “misuse of public office for private gain.” In their work, they find that public and private corruption results in “lower-quality work, reduced economic productivity and higher levels of income inequality and poverty.”

This investigation also found that states with the highest levels of corruption tend to spend more taxpayer funds on construction, highways, and police protection programs. This, in turn, facilitates corrupt officials to use public money for personal gain and less money on education, healthcare and welfare.

A February article in USA Today cites a Gallup-Healthways survey, in which participants were asked a “large range of questions to determine the well-being” of a state’s citizen. In the poll, Alabama ranked fourth lowest, only ahead of West Virginia, Kentucky and Mississippi.

Our dysfunctional justice system has taken Scott J. Wells' freedom for roughly two years on child-porn charges that have no grounding in probable cause

Scott J. Wells

How has Missouri resident Scott J. Wells been detained for almost two years on child-pornography charges that, court documents show, are not supported by probable cause? It's a blatant violation of the Fourth Amendment to the U.S. Constitution and should never happen in a semi-functional democracy. But when you have a U.S. magistrate (David P. Rush) who apparently approves anything prosecutors put before him, a federal prosecutor (James J. Kelleher) who seems to have a chip on his shoulder because Wells beat him once before on flimsy state charges, and court-appointed lawyers (public defender David Mercer and private attorney Shane Cantin) who have made little or no effort to defend their client . . . rights of the accused get trampled.

How do we know probable cause is lacking in U.S. v. Wells? Well, the case file is public record, and anyone with reasonable reading ability can come away suspecting probable cause is iffy. My conclusion is that probable cause is nonexistent -- meaning Scott Wells' arrest, a search of his home, and his detention at Leavenworth, Kansas, and various Missouri county jails are unconstitutional. (The criminal complaint in U.S. v. Wells is embedded at the end of this post.)

Probable cause is one of those amorphous legal concepts where you could ask 10 knowledgeable people to define it and get 10 different answers. Here is the gist: If a law-enforcement officer has reasonable suspicion that a crime has been committed,and the accused committed it, he can go before a judge to seek a finding of probable cause. If the judge agrees that probable cause exists, the accused can be arrested, have his property searched, and (in child-porn cases) even be detained without being convicted of anything.

Federal child-pornography statutes are unusual in that they essentially hinge on one word -- "knowingly." A person's computer can be overflowing with child-porn images, but that is only a crime if he took "affirmative actions" to receive it, possess it, control it, or distribute it. Without the "knowing" element, there is no crime, no matter how many disturbing images agents might find on your computer. Let's look at the key language under 18 U.S. Code 2252(a)(2) and (b)(1):

(a) Any person who — (2) knowingly receives, or distributes, any visual depiction using any means or facility of interstate or foreign commerce or that has been mailed, or has been shipped or transported in or affecting interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or through the mails, if— (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct;

You see that key word right there in the first sentence. Scott Wells is charged with receiving and distributing child pornography, but he must do it "knowingly"; otherwise, there is no crime. And there can be no probable cause without at least some evidence -- even a suggestion -- that Scott Wells acted knowingly. But the charging document in U.S. v. Wells utterly fails on that front.

U.S. Magistrate David P. Rush

James D. Holdman Jr., who describes himself as a "Special Agent (SA) with United States Immigration and Customs Enforcement (ICE), Office of Homeland Security Investigations (HSI), in Springfield, Missouri," prepared the affidavit on which Scott Wells' arrest is based. Holdman says he has been employed with ICE/HSI since January 1989, including duties as a deputy sheriff in Washington County, Missouri, and a criminal investigator for the State of Missouri. As part of his duties with ICE/HSI, Holdman says, "This affiant investigates criminal violations relating to child exploitation, child pornography, human trafficking, and coercion and enticement.

Let's consider some of the relevant language from the Holdman affidavit, under the heading "Probable Cause," beginning on page 3:

7. On March 8, 2017, Southwest Missouri Cyber Crimes Task Force (SMCCTF) Officer (TFO) Lee Walker reviewed two CyberTips, 16533`142 and 16099575, from the National Center for Missing and Exploited Children (NCMEC). Both CyberTips were initiated by Facebook. . . .  

8. CyberTip 16533142 was initiated by Facebook, after a file . . . containing suspected child pornography had been uploaded from a Facebook account. The suspect file was uploaded from a Facebook account with a screen name of scott.wells.79 and user ID 11033732066. The account listed a verified email address of scottw3820@yahoo.com. The suspect file was uploaded on December 15, 2016, at 15:18:55 hours UTC, using IP address 173.19.198.141. This affiant reviewed the image from CyberTip 16533145. The image depicts a minor, prepubescent female lying on what appears to be a bed with her pants pulled down, her legs spread and up in the air, exposing her vaginal and anal area. The minor female's hands are on her bottom.

This section raises two important issues:

(A) Holdman multiple times says Wells "uploaded" the suspect image from his own Facebook account. I don't claim to be an expert on computer terminology, but I'm pretty sure there is a difference between an "upload" and a "download." Here is how one Web site puts it:

Uploading is the process of putting web pages, images and files onto a web server. Downloading is the process of getting web pages, images and files from a web server.

To make a file visible to everyone on the internet, you will need to upload it. When users are copying this file to their computer, they are downloading it.

In other words, when an image originates with a user and is placed on the Web, it is uploaded. When an image already is on the Web and someone clicks on it, perhaps saving it, that is a download. Scott Wells has said he received a Facebook file from a woman in Tennessee and clicked on it without knowing what it was and without asking for it. When he saw the image, he thought it was the woman's daughter, that the mother essentially was enticing Facebook users with pornographic images of her own child. Wells has said he forwarded the image to the daughter in an effort to alert her about the mother's unlawful acts. Federal prosecutors now claim this act of alerting a victim amounts to distribution of child porn.

The evidence we have now suggests Scott Wells downloaded the image, and the woman in Tennessee uploaded it. We are pretty sure Special Agent Holdman, who claims to be highly trained on matters of child porn, has his terms mixed up. If that's the case, it makes you wonder what else is mixed up in his affidavit.

(B) Nothing in the section even hints that Scott Wells acted "knowingly," so based on this material, there is no crime.

What about the rest of the affidavit? We will look at that in upcoming posts.


(To be continued)

Former Alabama Gov. Bob Riley is a lobbyist for Austal USA, the Mobile ship builder that is under federal investigation and has international financial woes, too

Austal USA in Mobile, AL

Former Alabama Gov. Bob Riley is the chief lobbyist for a Mobile ship-building company that federal investigators raided last week. Austal USA, with its international headquarters in Henderson, Western Australia long has been a pet project for Riley -- both while he was governor and since he left office.

Austal USA is one of Mobile's largest employers, with a workforce of about 4,000. It builds Littoral Combat Ships and Expeditionary Fast Transports for the U.S. Navy, and al.com reports it is competing in a selection process for a series of next-generation frigates.

The nature of the investigation remains unclear, but it appears to have grown from a financial probe in Australia. From a report at maritime-executive.com:

Australian ferry and defense shipbuilder Austal is cooperating with an Australian probe into market disclosures it made in 2015 regarding cost overruns on LCS-6, the Littoral Combat Ship USS Jackson. Austal builds one of the U.S. Navy's two LCS variants, the aluminum-hulled Independence-class ships.

In a filing released through the Australian Stock Exchange on Thursday, Austal confirmed that it is "assisting an investigation by ASIC (the Australian Securities and Investments Commission) into market announcements . . . with respect to earnings from its Littoral Combat Ship program." Its American division, Austal USA, confirmed Friday that it is also cooperating with the U.S. Navy in an unspecified investigation. Local media reported that officials from the Department of Defense, the NCIS and the Defense Criminal Investigative Service were spotted at the Austal USA yard in Mobile, Alabama.

A report at usni.org provides additional details about the possible focus of the investigation and the U.S. agencies involved:

Federal agents visited Littoral Combat Ship manufacturer Austal USA in its Mobile, Ala., shipyard as part of an unspecified investigation involving the U.S. Navy, according to local media.

“Department of Defense, NCIS and [the Defense Criminal Investigative Service] have been seen on site,” according to NBC 15 in Mobile, Ala. “Investigators are expected to be on site for several hours.”

In a brief Thursday statement, Austal said the company was cooperating with authorities but gave no additional details as to the nature of the inquiry.

“Austal USA is working with the U.S. Navy on an open investigation,” reads the statement. “We are unable to provide additional details due to the nature of the investigation. We are continuing business as usual, executing our existing and recently awarded contracts.”

Here is more from usni.org about Austal's operations in south Alabama and the company's unstable financial picture:

The Mobile shipyard employs 4,000 workers and builds the Spearhead-class Expeditionary Fast Transport and Independence-class Littoral Combat Ship for the Navy. Austal USA is the American branch of Australian aluminum shipbuilder Austal. Earlier Thursday, Australian media reported Austal was under investigation by the Australian Securities and Investments Commission over market updates related to losses around the Independence-class LCS.

The Australian authorities are said to be focusing on statements issued by Austal regarding the blow out, or sudden increase in costs, associated with finishing USS Jackson (LCS-6)

Bob Riley

 On December 10, 2015, Austal announced it was experiencing “schedule and margin pressure on Littoral Combat Ship (LCS) 6.”

Jackson was a challenging ship in two respects. First, it was the first ship Austal USA had built as the prime contractor, whereas USS Independence (LCS-2) and USS Coronado (LCS-4) were built at the Austal yard with General Dynamics serving as the prime contractor on the project. Second, Jackson was the first LCS to be built under a block buy contract from the Navy. Austal implemented a new manufacturing process for the block buy ships meant to reduce cost and schedule down the line through serial production, but Jackson being the first serial production ship still meant there were lessons to be learned and procedural kinks to be worked out.

Austal's finances have been shaky since 2015-16, according to usni.org:

Austal officials conceded in the Dec. 2015 statement that their ability to boost LCS earnings through these new production processes did not live up to expectations. Savings on the LCS-8 and LCS-10 production were also more limited than anticipated, Austal officials said in the Dec. 2015 statement.

“Austal’s ability to apply lessons learnt and productivity enhancements from LCS 6 to vessels in advanced construction, namely LCS 8 and LCS 10, has been more limited than anticipated,” the statement said.

“The LCS program is maturing more slowly than we had expected, however we are working hard to manage the risks and expect an improvement across the program after delivery of LCS 10,” Andrew Bellamy, who then served as Austal’s chief executive, said in the December 2015 release. “Austal has a strong balance sheet and is generating good cash flow, which is enabling further investment in the business during the 2016 financial year to best position the Company to win additional contracts and service work to build our order book, revenue, and earnings into the future.”

However, according to Austal’s Fiscal Year 2016 annual report, the company reported a loss of A$84.2 million, compared to a profit of A$53.2 million in 2015.

Could this develop into a full-blown scandal, with Bob Riley at the center of it? It's too early to tell, but Riley (often in conjunction with one or both of his oily children -- Rob Riley and Minda Riley Campbell) has been tied to corruption for years. So far, the Rileys have managed to mostly dodge accountability. But if they are found to be involved in an international financial scam, involving misuse of U.S. defense funds . . . that tune could change.

Either way, Alabamians should be keeping a close eye on this story. Riley and his successor as governor, Robert Bentley, dumped millions of taxpayer dollars into Austal USA. Right now, it looks like that could have been a bad bet -- with everyday Alabamians being left holding the bag.


(To be continued)

Scott J. Wells, who had his conviction overturned due to David Shuler's woeful lawyering in a child sex abuse case, now faces federal child-pornography charges, which sound like retaliation from the legal tribe

Scott J. Wells

A Missouri man, whose conviction for child sexual abuse was overturned due to my brother's ineffective assistance of counsel, remains in legal jeopardy -- and our investigation indicates the legal tribe is retaliating against him for fighting back against bogus criminal charges and suing the lawyer (David Shuler) who almost caused him to receive five life sentences.

Scott J. Wells, of Springfield, faces federal charges of receiving and distributing child pornography, with a tentative trial date of Feb. 11. Our review of the public record suggests the charges are preposterously weak, with no sign of probable cause that Wells committed the offenses under 18 U.S. Code 2252(a)(2) and (b)(1). But Wells' two court-appointed lawyers -- U.S. Public Defender David Mercer (no longer on the case) and private attorney Shane Cantin (of Springfield's Carver Cantin and Mynarich) -- have done virtually nothing to defend him.

Cantin recently sent a letter to Wells stating that he had no defense and that Wells was almost certain to be convicted -- likely receiving a stiffer sentence if he goes to trial rather than pleading guilty. (More on the letter in an upcoming post.) Despite that, Cantin appeared at a recent pre-trial hearing and told U.S. Magistrate David P. Rush that he was "ready for trial." Sources tell Legal Schnauzer that Cantin has not even shown his client the government's evidence against him, which Wells is entitled to see under the Sixth Amendment, so how can Cantin be ready for trial?

Here is perhaps the most disturbing part about U.S. v. Scott James Wells (17-mj-2020-DPR). Wells has been detained for almost two years, spending all of that time at a facility in Leavenworth, Kansas, or various county jails in Missouri. Wells has been behind bars because the trial court apparently considers him a threat to society. Wells is virtually blind in one eye and has a benign brain tumor that forces him to use a walker or wheelchair to get around, but he's a threat to the public?

(Note: The criminal complaint in U.S. v. Wells is embedded at the end of this post.)

Chief prosecutor James J. Kelleher apparently pushed for detention based on the child sexual abuse case where the conviction against Wells was overturned. Let that sink in for a moment: A U.S. citizen has been behind bars for almost two years largely because of an earlier case where a conviction was overturned after a complaining witness was found to have lied under oath about Wells having scars on his penis.

Kelleher was the state prosecutor in the child sexual abuse case, so perhaps he wants to punish Wells for beating weak charges the first time around. Wells agreed to an Alford plea of child endangerment to dispense with the first case. Trial Judge Don Burrell probably could have dismissed the whole case once a complaining witness was found to have lied about penis scars. But Burrell chose to overturn the conviction and give the state a chance to re-try, meaning Wells faced the prospect of going before a pro-prosecution jury in conservative Southwest Missouri.

With an Alford plea, a criminal defendant does not admit to the unlawful act and asserts his innocence. In essence, it is a type of guilty plea that allows the prosecution to save face for bringing a weak case. Nothing in the record even hints that Scott Wells actually endangered a child. Federal prosecutors now are trying to hold that case against Wells, even though he ultimately won it.

Shane Cantin

Wells' legal-malpractice lawsuit probably cost David Shuler a substantial amount of money -- maybe six figures or more -- and the case file indicates Wells was on his way to winning it. Wells cleared the major hurdle of summary judgment, and the case was on the verge of trial -- with the sides working to formulate jury instructions -- when Wells' attorney (John J. Allan, of St. Louis) bailed out, claiming he needed more money. Wells' middle-class family already had paid more than $80,000 to beat the original charges, so they could not afford to pay more.

Allan's actions make no sense because his client was one of the few who gets almost to trial in a legal-malpractice case, and expert witness Daniel Dodson had provided devastating deposition testimony against David Shuler. The court file is voluminous, but we've found no sign that David Shuler even had an expert witness -- a lawyer who was willing to go under oath and state that Shuler handled the Wells case with the proper standard of care. 

By the way, public records show the Missouri Bar has disciplined John J. Allan at least twice. That raises this question: What kind of lawyer did Scott Wells have in his legal-malpractice case? Did someone dangle incentives that caused John J. Allan to leave his client high and dry on the verge of a major court victory?

Why is the child-porn case against Scott J. Wells so lacking? Here are just a few reasons, based on our review of the record:

* A fundamental provision of the relevant law is that the accused must "knowingly" receive or distribute child pornography. We see no probable cause that Scott Wells did either.

* A fundamental provision of the relevant law is that the alleged child victims must be minors, age 17 or younger. We see nothing in the criminal complaint that proves the alleged victims were minors -- or, more importantly, that Scott Wells knew they were minors.

* Case law holds that an accused must take "affirmative actions" to show knowing receipt, possession, or distribution. The record indicates that a woman in Tennessee was a Facebook friend of Scott Wells and sent him an explicit photo of her daughter. There is no evidence that Scott Wells asked for the photo or even knew what it was when he clicked on it. Wells sent the photo to the daughter to alert her to the mother's actions. There is no indication he did anything else with it, but federal prosecutors apparently claim warning a victim amounts to distribution of child porn.

* We see no grounds in the record for detaining Scott Wells as a threat to the community, and there is nothing on file to suggest either of his court-appointed attorneys tried to keep him out of detention or get him out of detention once he was wrongfully behind bars.

Despite the utter lack of probable cause on central elements of the offense, U.S. Magistrate David P. Rush approved Wells' arrest, a search of his home, and his detention. Is Rush little more than a rubber stamp for prosecutors? Is he part of a scheme to punish Scott Wells for standing up to the legal tribe?

We will address those questions and many more in upcoming posts.