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United States v. Brown

United States Court of Appeals, Ninth Circuit

June 12, 2017

United States of America, Plaintiff-Appellee,
v.
Daniel Brown, Defendant-Appellant.

          Argued and Submitted June 6, 2016 Seattle, Washington

         Appeal from the United States District Court for the District of Montana D.C. No. 9:14-cr-00027-DLC-2Dana L. Christensen, Chief Judge, Presiding

          Chad Wright (argued), Wright Legal P.C., Helena, Montana, for Defendants-Appellants.

          Cyndee L. Peterson (argued), Assistant United States Attorney; United States Attorney's Office, Missoula, Montana, for Plaintiff-Appellee.

          Before: Richard A. Paez and Jay S. Bybee, Circuit Judges, and Jon S. Tigar, [*] District Judge.

         SUMMARY[**]

         Criminal Law

         The panel reversed a conviction for conspiracy to make, print, or publish "any notice or advertisement seeking or offering" child pornography in violation of 18 U.S.C. §§ 2251(d) and (e), and remanded for retrial, in a case in which the defendant was a member of an online bulletin board where members shared child pornography.

         The defendant challenged his conviction on the ground that the district court violated his Sixth Amendment right to present his defense to the jury when it precluded him from arguing the government had not met its burden to show that the bulletin board involved a "notice" or an "advertisement, " given the closed nature of the bulletin board. The panel held that by effectively ruling as a matter of law that the closed nature of the bulletin board was irrelevant to the question of whether an "advertisement" or a "notice" had been shown, a determination that was the jury's to make, the district court violated the defendant's fundamental right to assistance of counsel and right to present a defense, which was structural error, and relieved the prosecution of its burden to prove its case beyond a reasonable doubt.

         Dissenting, Judge Bybee wrote that the majority opinion is entirely inconsistent with United States v. Grovo, 826 F.3d 1207 (9th Cir. 2016), which held that posting child pornography on a closed, online bulletin board was-as a matter of "statutory interpretation"-an "advertisement" under § 2251(d).

          OPINION

          TIGAR, District Judge

         Daniel Brown was a member of an online bulletin board known as Dark Moon, where members, including Brown, shared child pornography. A jury convicted Brown of conspiracy to make, print, or publish "any notice or advertisement seeking or offering" child pornography in violation of 18 U.S.C. §§ 2251(d) and (e). The district court sentenced Brown to a prison term of fifteen years.

         Brown challenges his conviction on the ground that the district court violated his Sixth Amendment right to present his defense to the jury when it precluded him from arguing the government had not met its burden to show that the Dark Moon bulletin board involved a "notice" or an "advertisement, " given the closed nature of the bulletin board.[1] We reverse Brown's conviction and remand for retrial.

         I. BACKGROUND

         Brown was prosecuted under 18 U.S.C. § 2251(d)(1), which provides in relevant part that:

Any person who, in a circumstance described in paragraph (2), knowingly makes, prints, or publishes, or causes to be made, printed, or published, any 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
. . . . shall be punished as provided under subsection (e).

         After the defense rested, the district court heard arguments regarding jury instructions. Over Brown's objection requesting a more specific definition of the terms "advertisement, " "advertise, " and "notice" in the statute, the district court determined it would give Jury Instruction No. 21, which, in part, provided: "[t]he terms 'advertisement, ' 'advertise, ' and 'notice' should be interpreted as taking their ordinary, contemporary, common meaning."

         After the court ruled on the parties' objections to the jury instructions, the government raised its concern that Brown's attorney would argue in closing that "because The Dark Moon was a closed board, that somehow it cannot constitute an advertisement" under 18 U.S.C. § 2251(d)(1).[2] The government argued that such an argument would be "wholly inconsistent with the case law."

         In response, Brown's attorney stated that he "intend[ed] to argue that because [the Dark Moon] was a closed board, it does not constitute 'advertisement, ' 'advertise, ' or 'notice' under the statute . . . ." Upon questioning by the court, Brown's attorney was not able to cite any case supporting his "position that because [the Dark Moon was] a closed board, it [did] not constitute 'advertisement, ' 'advertise, ' or 'notice' under the statute." Instead, Brown's attorney argued that the cases cited by the government did not establish that the closed nature of a bulletin board was irrelevant to the determination of whether a "notice" or "advertisement" had been made, but rather these cases stood simply for the proposition that the closed nature of a bulletin board does not preclude prosecution under 18 U.S.C. § 2251(d)(1).[3] Brown's counsel argued that the closed nature of the board was one factual consideration that the jury should be permitted to consider in determining "whether the government meets the proof beyond a reasonable doubt."

         The district court considered the parties arguments and stated: "I'm satisfied, based on the authority that's been cited to me by the government in this case, . . . that a closed board, such as this one, does constitute or does have a component of it that is a notice or advertisement under the applicable statute." The district court then ruled: "to the extent you [Brown's counsel] want to make that argument [to the contrary], you want to offer that defense, I'm not going to let you do it." The district court explained its reasoning as follows: "I just think clearly that when you have a [site] like the Dmoon bulletin board where you are making available, to anybody that wants to get into this particular bulletin board, the services that are being offered in that bulletin board in the manner as it has been demonstrated through the evidence in this case, that . . . to me . . . meets the definition of what would be 'advertisement, ' 'advertise, ' or 'notice.'"

         II. ...


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