Defendant Charged With Thought Crime After Alleged Child Porn Revealed To Be Adult Porn

Ordered by the court to provide defendant with a copy of his hard drive, feds then charge him with a child porn offense.  Defendant’s expert discovers the alleged image is commercial adult porn involving Melissa Bertsch and Dave Cummings.  But feds refuse to drop the charge, claiming defendant thought it was child porn.

This is the Hawaii case Bertsch mentions in this article, in which she testified; U.S. v Schnepper.

THE STING

In December, 2001, Hawaiian Thomas Schnepper began chatting on-line with what he thought was 15 year old Mandy of Wyoming.  The chats were sexual in nature, and Schnepper sent a number of sexually explicit images to Mandy, including one titled, “mandy_taken_a_dare_for_$100.jpg”.

Mandy was actually Special Agent Flint Waters of the Wyoming Attorney Generals Office.

Schnepper arranged for Mandy to meet him in Hawaii, and when he showed up at the airport, was promptly arrested.  A search warrant was then executed on his residence and his computer seized.  The computer was examined by FBI Special Agent Lawrence Futa and the images Schnepper sent to Waters were found, among other images and chat logs.

Schnepper was charged with one federal count of violating 18 USC 2422(b), attempted enticement of a minor by use of the Internet.

In October 2002, Schnepper (attorney Richard Kawana) filed a motion to exclude the use of uncharged computer evidence.  Attached to the motion was a portion of the FBI report filed by Special Agent James Tamura-Wageman, who reviewed the CD produced by Futa’s examination.

This report identifies over 30 females “appearing to be a minor” out of 56 images detailed, including “mandy taken a dare for $100,” identified at Nos. 10, 48 and 54.  This report also identifies a number of websites that Schnepper visited, yet there is no mention that any of the images are actual child porn, or any of the referenced websites are connected to child porn distribution.

THE TRIAL

In anticipation of trial, Schnepper hired a computer expert, Marcus Lawson of Global CompuSearch, out of Seattle, WA.  Schnepper then filed several discovery motions to compel production of a mirror copy of Schnepper’s hard drive.  The government responded in opposition claiming the hard drive contained contraband child porn.

In November, 2002, a hearing was held on the matter.  While acknowledging that Schnepper was not charged with child pornography, the prosecutor, AUSA Lawrence Tong, continued to insist the images were child porn:

It’s a very frustrating position to be in, to look at these pictures,  to be repulsed by them, and then basically to say, we are now being required to make extra copies of it.  Even though we are going to get ’em  back, just to know that we are putting into circulation the very thing these gentlemen and I are trying to get rid of.  And that’s very, very bothersome.  I can’t suggest to the court how strongly we feel about that.  I can’t overemphasize how much we urge you to exercise your discretion–which is authorized–to basically allow us to make the discovery in a way that does not require the production of child pornography.

At the close of the hearing, the judge ordered the government to produce a mirror copy for Schnepper.

On February 12, 2003, the government filed a superseding indictment, charging Schnepper with 8 counts.  The original count, 6 counts of violating 18 USC 1470, and one count of violating 18 USC 2252 (a)(1) and (b)(1), transporting and shipping child pornography.

Although the FBI report identifies numerous females as “appearing to be a minor”, and AUSA Tong told the court that numerous images of child porn on Schnepper’s hard drive justified their refusal to provide a mirror copy to the defense, only one image was alleged in Count 8; “Mandy taken a dare for $100.”

Jury selection began on May 28. 2003, with Special Agent Flint Waters scheduled as a government witness.  On the same day, Schnepper filed a motion to dismiss Count 8 on the grounds the image was commercial adult porn, not child porn.  Attached to the motion was a declaration from Kawana and several exhibits.  The exhibits included a signed and dated Artist Agreement and Release between the two actors in the image, Dave Cummings and Melissa Bertsch.  Also included was Bertsch’s Arizona driver’s license, all of which indicated Bertsch was 20 years old at the time “mandy taken a dare for $100” was produced.  According to Kawana, AUSA Tong stated the information was irrelevant and that he would proceed with the count.

Two days later,  AUSA Tong filed a motion opposing dismissal of the child porn charge, stating:

The government’s evidence will show that defendant believed the girl was a minor, and thought the image constituted child pornography….the government has to show the girl was an actual minor to prove a substantive violation of 18 U.S.C. 2252 (a).  But there is no such requirement to prove an “attempted” violation of that statute under 18 U.S.C. 2252 (b) (1)….If the defendant in Crow could be convicted of attempting to get someone he believed to be a minor to make a sexually explicit video, then the defendant in this case can also be convicted of attempting to transport a sexually explicit picture of someone whom he believed to be a minor.

Bertsch, duly subpoenaed, testified on June 3, 2003, in Schnepper’s defense.  Among other things, she described her business relationship with Dave Cummings, which resulted in the image that was charged as child porn in Count 8.  In short, she testified that at the time of the image’s production, January 31, 1999, she was 20 years old.

AUSA Tong never relented in his position and repeatedly objected during her testimony.   The court dismissed Count 8 the same day.

THE QUESTIONS

Not to make light of Schnepper’s conduct in this case, but the government’s conduct is certainly called into question.  Apparently Bertsch’s images have been successfully charged as child porn in the past, and are in the DOJ’s inventory of images classified as child porn.  This would explain why Bertsch images keep getting charged, and why, as she noted in her MySpace page, she had to deal with “FBI  trials” in 2007.

  UPDATE:  Ashley’s MySpace is private now, but  a  screen grab of her blog statement is at left.

Another concern is whether or not the FBI knew,   or had reason to believe, that the image was not child porn.  That would explain why Schnepper was not initially charged with child porn, why they did not want to provide a mirror copy, and why only one image was alleged in the eventual child porn count.  It’s difficult to believe that Lawson could do what the FBI forensic specialist could not; discover the origin of “Mandy taken a dare for $100.”

Even more difficult to believe that Flint Waters, recognized as an expert on Internet child exploitation, did not recognize Cummings or Bertsch as commercial adult porn actors.  Or that the image was readily available on Cummings’ website.

Or maybe the government just doesn’t care if it’s adults or minors, which is reflected in some current legislation.  There is a proposed bill in Missouri that will re-define child porn as obscene material that “appears to be of a minor” (Sec.573.037/pgs.10-11).  There is no mention of an affirmative defense regarding verifiable adults, or what the legal definition of “appears to be” the legislature has in mind.

Or is it simply that the government does not, and will not, search out the truth for fear of uncovering exculpatory information, jeopardizing their case, and their credibility.

Today, Schnepper, would not receive that mirror copy.  Congress, at the insistence of the DOJ, took that discovery discretion away from federal judges.

Alleged Child Porn Victims Identified—As Adults. Prosecutor Ignores Evidence, Insists They Are Pre-Teens, And Proceeds With Prosecution.

WARNING: Links with potentially offending adult matter are marked nsfw.   Please be of age before clicking.

For 4 years the State and its star witness, a medical professional, knew that 34 of 37 alleged child porn images were the copyrighted property of a well established adult web site operating out of Maryland.  For a year and a half the State and its star witness had documented proof  the 8 females in the 34 images were adults at the time of production.  Yet the State and its star witness continued to insist, under oath, the 8 females were no older than 13 in the images–including the female they knew was 27 years old.  What follows is an abbreviated chronology of the prosecution, including several court filings (pdf).

COMMONWEALTH vs. HOOSE

In January 2003, Sturbridge Massachusetts police detective Chris Donais (Donais), and Sgt. Jude Buckley (Buckley), of the Massachusetts State Police Computer Forensic Unit  executed a search warrant on the residence of one Kelly Hoose (Hoose), and seized his computer, among other items.

In early February 2003, Buckley rendered a forensic report of his examination of Hoose’s computer, which included 110 color photos of digital images Buckley believed were child pornography, retrieved from the hard drive.

In March 2003, Donais met with  Dr. Christine Barron (Dr. Barron), then Director of the U-Massachusetts Memorial Medical Center’s Child Protection Program.  After examining the 110 color photos, Dr. Barron identified 38 (one of which was a double), as containing females under the age of 18 engaged in the proscribed conduct.  These 37 photos were the basis for a four count Massachusetts state grand jury indictment against Hoose.  The Assistant District Attorney prosecuting the case, Maura McCarthy, did not show or offer the photos to the grand jury.

In November 2004, Hoose (attorney James Kaeding) filed a motion to exclude the expert testimony of Dr. Barron regarding her opinion of the ages of the females, and her application of the Tanner Scale to the females in the photos.

In January 2005, Hoose requested a certificate to subpoena the records of ALS Scans Inc., a Maryland based adult business operating an adult web site since 1998.  Thirty-four of the 37 images charged were clearly marked with an ALS Scans Inc. copyright, the internet address www.alsscans.com (nsfw) and the names of the model(s); “Ashley”, “Trisha”, “Jo”, “Zoe”, “Courtney”, “Trista”, “Ginger” and “Lainey”.

In a March 10, 2005 response to a Hoose motion, the government falsely claimed the photos were “provided to and described to the Grand Jury.”

On the same date, a Daubert hearing was held to determine whether the foundation of Dr. Barron’s expert opinion, Tanner Staging, was relevant and reliable under a Daubert analysis, and thus admissable to the  element of minority.

At the Daubert hearing, Dr. Barron testified  that she was conservative in her analysis of the 110 color photos and chose only those images consistent with a Tanner Stage 1 or 2, meaning:

          THE COURT:  So all of the images that form the basis of this case, in your opinion, show females with an age no older than 13?

           THE WITNESS:  That’s correct.

Dr. Barron alleged that 99.9% of females classified as Tanner Stage 1 or 2 would be under the age of 18.  She also testified that the process of Tanner Staging did not require the live presence of the individual. 

On March 16, 2005, the court denied Hoose’s motion to exclude Dr. Barron’s expert opinion, finding her testimony “credible.”

Hoose Docket Sheet

Hoose Indictments

Motion To Exclude Expert Testimony of Christine Barron, M.D.

Hoose Request For Subpeona Duces Tecum

Hoose Memorandum in Support of Motion To Exclude Expert Testimony

Commonwealth Response to Hoose Motion to Exclude Barron’s Expert Testimony

Transcript of Daubert Hearing

Court Order Denying Hoose Motion To Exclude Barron’s Expert Testimony

In April 2005, pursuant to a subpoena, Sarah Kiwak, Custodian of Records for ALS Scans, provided an Affadavit to the court, with attached exhibits in accord with federal law, identifying the 8 ALS Scans models alleged.  The Affadavit, along with copies of birth certificates, social security numbers, signed model contracts and dates of production, verified that the 34 ALS Scans images contained adults, most of whom were in their 20’s at the time of production.

In a September 2005 response to a Hoose motion, the government repeated its false claim that the alleged victims were unknown, and stated they had no “affirmative obligation” to contact ALS Scans regarding their records of the 8 models.

In an October 2005 ruling, the court denied Hoose’s motions to dismiss, yet acknowledged:

The images all contain a copyright year, the first name or names of the ‘models,’ and the words “ALS Scans Inc.” and http://www.alsscans.com” ….The Grand Jury was not presented with any information concerning  the web site from which the images were obtained…”

In 2006, in anticipation of trial, Hoose subpoenaed one of the 8 ALS Scans models, “Ashley”, (Melissa Bertsch) to testify in his defense, something she was familiar with as this is one of a number of cases in which her images have been alleged to be child  porn.

In December 2006, a bench trial commenced.  Dr. Barron testified for the government, while an alleged victim, Melissa Bertsch (”Ashley”) testified for Hoose.

According to witnesses, Dr. Barron’s testimony was consistent with her testimony at the Daubert hearing.  Although the State was in possession of certified documents identifying the 8 models in those 34 photos as adults at the time of production, Dr. Barron continued to insist they were minors no older than 13 years of age, including the one sitting in the courtroom, Melissa Bertsch.

The court found Hoose not guilty on all four counts.

Signed Court Order For ALS Scans Records

Affidavit of Custodian of Records, Sarah Kiwak

Government Response To Hoose Motion To Dismiss

Court Order Denying Motions To Dismiss

At no point during the 4 year time frame did anyone involved in the prosecution contact, investigate or shut down ALS Scans business properties.  At no point during the 4 year time frame did Dr. Barron report the child abuse she had testified about to the proper authorities, as required under Massachusetts law. 

It’s clear the prosecution had nothing to do with justice, truth or protecting children.  Instead, the agenda was, in part, an extreme attempt to advance a fraud being perpetuated upon the courts; the use of “experts in age determinations” in general, and the use of  “Tanner Staging” in particular to satisfy the government’s burden of proof on the element of minority in alleged child porn prosecutions.

In December 1998, the medical journal Pediatrics published a letter authored by Dr. James Tanner and a colleague, Dr. Arlan Rosenbloom.  In the letter, Dr. Tanner condemned the “wholly illegitimate use” of his Tanner Scale to estimate age from a stage in this context as it was not designed for such purpose.

Less than a year later, the DOJ, recognizing that only Dr. Tanner can speak for his research, dismissed what remained of the indictment, (receipt), in U.S. v Katz:

Dr. Tanner’s recently published criticism calls into question the prior Daubert ruling and the credibility and admissibility of expert testimony to establish that a model in a pornographic video tape is under the age of eighteen, based upon the Tanner Scale of Human Development.

In this particular case, based upon the recent published report by Dr. Tanner, the government cannot prove beyond a reasonable doubt the age of the female, an essential element of the crime charged.  As a result, the interest of justice demand that the United States dimiss the indictment against the defendant.

Yet state and federal prosecutors continue to use Tanner Staging in the reverse method that Dr. Tanner has condemned.  During her Daubert testimony, Dr. Barron stated that her mentor, Dr. Carole Jenny, and several others had been commissioned by the DOJ to write a chapter validating the use of Tanner Staging in alleged child porn cases. 

Meanwhile, how many cases like this have the DOJ and Dr. Jenny covered up to protect this fraud?  Anyone with information on similar cases, feel free to contact us.

ALS SCANS INC.

Copyright Info (Name: als scan inc)

Trademark

Whois

American Medical Association

AMA Report On Expert Testimony

AMA Code of  Medical Testimony Ethics

Gonzales, Mueller, McDade and Eichenwald: Did They Violate 18 USC 2252A?

On the last day of AG Alberto Gonzales’ fractured civil servant career, a diary was posted at DailyKos detailing how Gonzales and FBI Director Mueller handed out “pixellated” images of child porn to civillian business reps of Internet Service Providers in the spring of 2006.  The diary cites to, and quotes from, a 5th Circuit Appellate Court opinion in which the panel shot down the “pixel” arguement of a defendant:

Grimes argues that the presence of the pixel
boxes prevents, as a matter of law, the nude
photographs of the minor girls from meeting
the statute’s definitional requirements. First,
he asserts that because the genitals were
blocked out, the photographs fail to meet the
definition of “lascivious.” Second, and along
the same lines, he argues that because the genitals
are blocked out, they are not “exhibited.”….

After viewing the photographs, we reject
Grimes’s challenge to the sufficiency of the
evidence. It is plain to any viewer that the
producing of these visual depictions involved
the use of minors engaging in sexually explicit
conduct and that the visual depiction captured
that activity.
Grimes answers by saying that postproduction
computer alterations brought the
photographs outside the statute’s reach. That,
however, is not what the plain language
requires.

The diary references Georgia District Attorney David McDade, the infamous  prosecutor who made copies of the Genarlow Wilson child porn tape and passed it around to reporters and members of the Georgia legislature to prevent a retroactive application of an amended law benefitting Wilson.

It’s been over 2 months since the U.S. Attorney’s Office in that district was made aware of the conduct.  All the elements that satisfy a federal indictment are present.  What’s missing is the “zero tolerance” attitude that Gonzales impressed upon his attorneys.

And yesterday, in a piece by Debbie Nathan for Counterpunch, Nathan details the continuing saga of reporter Kurt Eichenwald.  Court documents recently unsealed expose a reporter who was so far in over his head, it appears he not only financially supported Justin Berry’s re-entry into Internet child porn, but assisted in the site’s administration.  It’s difficult to believe the DOJ was not aware of all this after Berry came forward with the information, followed by his savoir, Eichenwald.  As Nathan points out, information that:

…led to a hysterical circus of congressional hearings and fueled witch-hunting legislation against not just sex offenders, but even teen networking sites like MySpace.

So why is the DOJ giving these individuals a pass while they spent 4 years prosecuting Kelly Hoose for possessing images the government knew were adults?