Posting Not Necessarily “Advertisement” Under 18 USC 2251

18 USC 2251 (d)(1) makes it federal crime for anyone to post a "notice or advertisement seeking or offering— (A) to receive, exchange, buy, produce, display, distribute, or reproduce, any visual depiction, if the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct. 18 USC 2251 (d)(1)."

Daniel Brown belonged to a closed bulletin board called "Dark Moon." Child pornography was shared between members of the board. The bulletin board was only accessible with a username and password. Users were directed not to share login information with other people. Files that were shared were encrypted. And the board only had a few users.

Brown tried to argue at trial that the unique features of  the board rendered his postings not a "notice or advertisement" under the statute. However, the trial judge refused to allow Brown to make this argument to the jury. According to the trial court, Brown's postings were a "notice or advertisement" under 18 USC 2251 (d)(1) as a matter of law. Because of this ruling, the jury was not allowed to decide whether Brown's postings were constituted a "notice or advertisement." Juries determine facts, not the law.

Brown appealed, and the Ninth Circuit reversed.

In a 2-1 opinion, the Ninth Circuit held that Brown was entitled to argue to the jury that his postings were not a "notice or advertisement" under 18 USC 2251 (d)(1) because of the particular features of the closed board.

The appeals court rejected the Government's argument that United States v. Grovo, 826 F.3d 1207 (9th Cir. 2016) rendered such postings always a "notice or advertisement" under 18 USC 2251 (d)(1).While Grovo is instructive, it is not dispositive in this case. We did not rule there that the closed nature of an online bulletin board is irrelevant to the factfinder’s determination of whether posts on that bulletin board constituted “advertisements.” Id. at 1219 (“A rational factfinder could conclude beyond a reasonable doubt that these two posts were  advertisements ‘offering to . . . display’ child pornography to other KOFD members.”) (emphasis added). Grovo did not present us with the opportunity to opine on that question, because the only issue before the court was whether the evidence presented in that case was sufficient to sustain the defendant’s conviction. In United States v. Franklin, relied upon in Grovo, the Tenth Circuit likewise concluded in a review of the sufficiency of the evidence “that a rational factfinder could regard [the defendant’s] postings of child pornography as advertisements or notices under § 2251(d)(1)(A).” 785 F.3d 1365, 1370 (10th Cir. 2015). The question now before the Court is not whether the evidence against Brown was sufficient to support a conviction. Were that the question before us, we would ask whether, “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Kaplan, 836 F.3d 1199, 1211–12 (9th Cir. 2016). Instead, the question is whether the defense had a fair chance to argue the evidence in the first place. There is a wide gulf between saying that evidence is sufficient to convict, and saying that such evidence is always sufficient as a matter of law to convict.

Nonetheless, the appeals court was careful to reiterate that closed nature of the board itself was not what carried the day for Brown's argument.

To be clear, had counsel wanted to argue only that Brown’s posts could not qualify as “advertisements” or “notice” because he had posted on a closed board, such an argument would be foreclosed by Grovo. Rather, as he told the trial court, counsel wanted to argue that in this particular case “the features of the board don’t meet the . . . common and contemporary definition of ‘notice’ and ‘advertisement.’” These features included not only that the board was closed, but also that it was password-protected, that the rules of the forum required that files be encrypted, and that it had relatively few participants. As Brown aptly points out, “Grovo does not create an automatic finding of guilt anytime someone is charged with advertising child pornography on an electronic bulletin board,” and certainly no case reaches that conclusion on the particular facts before us.

As a result, the case was sent back to the lower court for a new trial. United States v. Brown, No. 15-30148 (9th Cir. 2017).  18 USC 2251 | Posting Not Advertisement | Federal Crime | Sentencing.net