18 USC 2251 (d)(1) makes it federal crime for anyone to post a “notice or advertisement seeking or offering\u2014 (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).”<\/p>\r\n
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.<\/p>\r\n
Brown tried to argue at trial that the unique features of \u00a0the 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\u00a0“notice or advertisement.” Juries determine facts, not the law.<\/p>\r\n
Brown appealed, and the Ninth Circuit reversed.<\/p>\r\n
In a 2-1 opinion, the Ninth Circuit held that Brown was entitled to argue to the jury that his postings were not a\u00a0“notice or advertisement”\u00a0under 18 USC 2251 (d)(1) because of the particular features of the closed board.<\/p>\r\n
The appeals court rejected the Government’s argument that United States v. Grovo<\/em>,\u00a0826 F.3d 1207 (9th Cir. 2016) rendered such postings\u00a0always<\/em> a “notice or advertisement” under 18 USC 2251 (d)(1).While Grovo<\/em> 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\u2019s determination of whether posts on that bulletin board constituted \u201cadvertisements.\u201d Id.<\/em> at 1219 (\u201cA rational factfinder could conclude beyond a reasonable doubt that these two posts were \u00a0advertisements \u2018offering to . . . display\u2019 child pornography to other KOFD members.\u201d) (emphasis added). Grovo<\/em> 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\u2019s conviction. In United States v. Franklin<\/em>, relied upon in Grovo<\/em>, the Tenth Circuit likewise concluded in a review of the sufficiency of the evidence \u201cthat a rational factfinder could regard [the defendant\u2019s] postings of child pornography as advertisements or notices under \u00a7 2251(d)(1)(A).\u201d 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, \u201cviewing 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.\u201d United States v. Kaplan,<\/em> 836 F.3d 1199, 1211\u201312 (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.<\/p>\r\n 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.<\/p>\r\n\r\n