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.

Melissa Ashley MySpace page  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.

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