FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30148
Plaintiff-Appellee,
D.C. No.
v. 9:14-cr-00027-DLC-2
DANIEL BROWN,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief Judge, Presiding
Argued and Submitted June 6, 2016
Seattle, Washington
Filed June 12, 2017
Before: Richard A. Paez and Jay S. Bybee, Circuit Judges,
and Jon S. Tigar,* District Judge.
Opinion by Judge Tigar;
Dissent by Judge Bybee
*
The Honorable Jon S. Tigar, United States District Judge for the
Northern District of California, sitting by designation.
2 UNITED STATES V. BROWN
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
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. BROWN 3
matter of “statutory interpretation”—an “advertisement”
under § 2251(d).
COUNSEL
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.
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
4 UNITED STATES V. BROWN
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,’
1
Brown raises additional arguments in his appeal, which we resolve
by a separate memorandum disposition filed concurrently with this
opinion.
UNITED STATES V. BROWN 5
‘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
2
The Dark Moon bulletin board was “closed,” as it was inaccessible
to the public and required a username and password to enter. The “rules”
of the board also prohibited “members from disseminating the board URL
to the general public and [required] all content uploaded to the board to be
encrypted and password-protected.”
3
Brown’s counsel stated: “[T]he cases [the government is] citing here
[involve defendants arguing that the government] can’t charge them with
6 UNITED STATES V. BROWN
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. DISCUSSION
“We review de novo whether there has been a violation of
. . . the Sixth Amendment right to make a defense.” United
States v. Stever, 603 F.3d 747, 752 (9th Cir. 2010). “Whether
grounded in the Sixth Amendment’s guarantee of compulsory
process or in the more general Fifth Amendment guarantee of
due process, the Constitution guarantees criminal defendants
a meaningful opportunity to present a complete defense.” Id.
[18 U.S.C. § 2251(d)(1)] because [the government] can’t meet the
definition [of “advertise” or “notice”].”
UNITED STATES V. BROWN 7
at 755 (internal quotation marks omitted). As this Court
explained in Conde v. Henry:
In Herring v. New York, the Supreme Court
set out the principle that the “closing
argument for the defense is a basic element of
the adversary fact finding process in a
criminal trial.” 422 U.S. 853, 858 (1975).
Thus, “it has universally been held that
counsel for the defense has a right to make a
closing summation to the jury, no matter how
strong the case for the prosecution may appear
to the presiding judge.” Id. Although a court
may limit arguments that are unduly time
consuming, “stray unduly from the mark, or
otherwise impede the fair and orderly
conduct,” id. at 862, denying an accused the
right to make final arguments on his theory of
the defense denies him the right to assistance
of counsel, see id. at 865.
198 F.3d 734, 739 (9th Cir. 1999). At the same time, a
district court may prevent a defendant from “arguing
incorrect statements of law, something that is well within the
court’s discretion.” United States v. Doe, 705 F.3d 1134,
1149 (9th Cir. 2013) (citing Herring, 422 U.S. at 860 (“The
Constitutional right of a defendant to be heard through
counsel necessarily includes his right to have his counsel
make a proper argument on the evidence and the applicable
law in his favor . . . .”)) (emphasis in Doe).
Here, the district court effectively ruled that, as a matter
of law, the closed nature of the Dark Moon bulletin board was
irrelevant to the question of whether an “advertisement” or a
8 UNITED STATES V. BROWN
“notice” had been shown, and thus could not properly be
considered by the jury.4 Indeed, the trial judge’s remarks
suggest that he foreclosed Brown’s argument in part because
he concluded that the government had met its burden as to
that element of the statute. Because that determination was
the jury’s to make, we conclude that it was error for the
district court to prevent Brown from arguing that the
government failed to meet its burden.
The cases cited by the government, or relied on by the
court below, do not counsel otherwise. In United States v.
Christie, for example, the defendant moved to dismiss several
counts in the indictment, which charged him with advertising
child pornography in violation of 18 U.S.C. § 2251(d)(1).
570 F. Supp. 2d 657, 661 (D.N.J. 2008). The defendant
argued that his posts to a password-protected website
“containing only links” and not “any indication whatsoever,
of what the link[s] contain[],” did not “satisfy the notice or
advertisement requirement” under the statute. Id. at 665. The
district court denied defendant’s motion to dismiss these
counts of the indictment, holding that “a non-descriptive link
to an image or video of child pornography satisfies the notice
and advertising element of 18 U.S.C. § 2251.” Id. at 666.
Because the ruling was made at the motion to dismiss stage,
the Christie court simply had no reason to address whether
the closed nature of a bulletin board may be considered by a
jury in determining whether particular conduct constituted a
“notice” or an “advertisement.”
4
The district court also stated: “the services . . . offered in that
bulletin board in the manner as it has been demonstrated through the
evidence in this case, that that, to me, meets the definition of what would
be ‘advertisement,’ ‘advertise,’ or ‘notice.’”(emphasis added).
UNITED STATES V. BROWN 9
In United States v. Rowe, on which the Christie court
relied, the defendant was charged with advertising child
pornography in violation of 18 U.S.C. § 2251(c) (now
designated § 2251(d)). 414 F.3d 271, 272 (2d Cir. 2005).
The defendant was tried before a jury, and after the
government rested its case, the defendant moved for
judgment as a matter of law, arguing that the “chat-room
posting identified in the indictment” did not amount to a
“specific solicitation for exchange of child pornography.” Id.
at 275. The district court denied defendant’s motion, finding
that the government’s evidence, when viewed as a whole, was
“adequate to charge validly and prove the offense of the
indictment.” Id. After the defense put on its case, the jury
found the defendant guilty. Id.
On appeal, the defendant challenged the district court’s
denial of his motion for judgment as a matter of law, arguing
that his posting was not a “notice or advertisement” within
the meaning of the statute. Id. at 276. The Second Circuit
“affirm[ed] the district judge’s ruling that [the defendant’s]
chat-room posting was a ‘notice or advertisement’ within the
meaning of § 2251(c).” Id. at 277. However, as in Christie,
nothing in Rowe supports the government’s contention that
the closed nature of a bulletin board cannot, as a matter of
law, be considered by the jury in determining the presence of
an “advertisement” or “notice.” The Second Circuit stated
only that certain conduct was “sufficient to constitute a
‘notice or advertisement’ within the meaning of § 2251(c).”
Id. at 277 (emphasis added). But the mere fact that certain
conduct was sufficient to survive defendant’s motion for a
judgment as a matter of law does not support the claim that
the closed nature of a bulletin board is irrelevant as a matter
of law.
10 UNITED STATES V. BROWN
Finally, in United States v. Grovo, we interpreted, for the
first time, the meaning of “advertisement” in 18 U.S.C.
§ 2251(d). 826 F.3d 1207 (9th Cir. 2016). Grovo was
convicted of conspiracy to advertise child pornography under
18 U.S.C. § 2251(d) based on his participation in the
Kingdom of Future Dreams (“KOFD”) online bulletin board.
Id. at 1211. Grovo appealed, challenging, among other
things, the sufficiency of the evidence for his conviction for
conspiracy to advertise child pornography. Id. In particular,
Grovo argued that his posts on the KOFD bulletin board
“were not ‘advertisements’ for child pornography” because
“an advertisement for child pornography must be published
in the press or broadcast over the air, or must otherwise be
publicly and generally known.” Id. at 1217.
After reviewing several dictionary definitions, we held
that “an advertisement need not necessarily be published in
the press or broadcast over the air,” and “advertising to a
particular subset of the public is sufficient to sustain a
conviction under [§ 2251(d)],” and that “a post on [a closed
board] can satisfy the legal definition of an advertisement
under § 2251(d).” 826 F.3d 1207, 1218–19 (9th Cir. 2016)
(emphasis added). As a result, we concluded that the
evidence presented at trial, which showed that defendant’s
“posts were shared with a closed community of 40 to 45
individuals on the KOFD message boards,” was sufficient to
sustain Grovo’s conviction.
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
UNITED STATES V. BROWN 11
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 fact-
finder 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.5
5
Counsel regularly argue that the evidence does or does not meet the
elements of a statute in closing argument. See, e.g., United States v. Hile,
626 F. App’x 674, 677–78 (9th Cir. 2015) (noting the prosecutor argued
that “it was not necessary under the statute for the victims to know of [the
defendant’s] actions as long as in the course of, or as a result, of his travel
he placed the victims in reasonable fear of death or serious bodily injury
or caused substantial emotional distress”); Lang v. Cullen, 725 F. Supp.
2d 925 (C.D. Cal. 2010) (explaining that defense counsel argued evidence
met the “any other circumstance” prong of California’s death penalty
statute).
12 UNITED STATES V. BROWN
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.
The dissent attempts to set up a dilemma for trial judges in future
cases by suggesting there is an irreconcilable conflict between this court’s
holding in Grovo and its holding today. The dissent asks, “What is [a
district court] to do in the next case?” —meaning follow this case or
Grovo. Diss. Op. at 21. But this hypothetical dilemma is based on a false
premise—that the question of the sufficiency of the evidence is the same
as that of whether closing argument should be allowed. In fact, the
questions are not the same, and what a trial judge should do is simple:
allow the defendant to make a closing argument and then, if the jury
convicts, allow the verdict to stand against challenge if the evidence
supports the verdict. That is exactly what criminal trial judges have
always done.
None of the cases the dissent cites illustrates the peril it alleges.
Instead, those cases hold that a trial court does not err by refusing to give
an instruction that allows jurors to acquit a defendant even when the
government has proven its case. United States v. Powell, 955 F.2d 1206,
1212–13 (9th Cir. 1991). No party makes such a request here, and that is
not the effect of today’s holding. The result is only to make sure that
jurors, and not the presiding judge, Herring, 422 U.S. at 858, are the ones
to decide whether the government has proven its case.
UNITED STATES V. BROWN 13
Nor need Brown prove that his defense, as presented,
would have succeeded. “[N]o matter how strong the case for
the prosecution may appear to the presiding judge,” Brown
had the right to present a defense that was not precluded as a
matter of law. Herring, 422 U.S. at 858. The fact that other
convictions with certain similar facts, see Franklin, 785 F.3d
at 1367 (involving a closed network where material could
only be accessed by “friends”); United States v. Wayerski,
624 F.3d 1342, 1348 (11th Cir. 2010) (involving a closed
board with a “sophisticated group of approximately
45 individuals”), have been upheld on appeal does not
foreclose Brown from making similar distinguishing factual
arguments to the ones those defendants made.
By refusing to allow Brown to present his defense in
closing argument based on the closed nature of the Dark
Moon bulletin board, the district court “violated [Brown’s]
fundamental right to assistance of counsel and right to present
a defense, and it relieved the prosecution of its burden to
prove its case beyond a reasonable doubt.” Conde, 198 F.3d
at 739. “[A] deficient closing argument ‘[lessens] the
Government’s burden of persuading the jury[,]’ [and]
cause[s] the ‘breakdown of our adversarial system.’” Id.
(quoting United States v. Swanson, 943 F.2d 1070, 1074 (9th
Cir. 1991)). Since “preventing a defendant from arguing a
legitimate defense theory constitutes structural error,” Frost
v. Van Boening, 757 F.3d 910, 916 (9th Cir. 2014) (en banc),
judgment rev’d on other grounds sub. nom. Glebe v. Frost,
135 S. Ct. 429 (2014) (citing United States v. Miguel,
338 F.3d 995, 1000–03 (9th Cir. 2003) and Conde, 198 F.3d
at 739), we must reverse Brown’s conviction accordingly, see
14 UNITED STATES V. BROWN
Miguel, 338 F.3d at 995 (“[S]uch an error is structural and
requires reversal”).
REVERSED and REMANDED for retrial.
BYBEE, Circuit Judge, dissenting:
The majority opinion is entirely inconsistent with our
holding in United States v. Grovo, 826 F.3d 1207 (9th Cir.
2016), cert. denied, 137 S. Ct. 1112 (2017). There, a panel of
our court held that posting child pornography on a closed,
online bulletin board was—as a matter of “statutory
interpretation”—an “advertisement” under 18 U.S.C.
§ 2251(d). Id. at 1217. We could not have been clearer:
[W]e hold that advertising to a particular
subset of the public is sufficient to sustain a
conviction under the statute. . . . Here, the
defendants’ posts were shared with a closed
community of 40 to 45 individuals on the
[Kingdom of Future Dreams (KOFD)]
message boards. Their posts constitute
advertisements under § 2251(d).
Id. at 1218–19. Today, the majority announces that arguing
that posting is not advertising is now a jury question and
denying Brown the opportunity to so argue was “structural
error.” Maj. Op. at 13–14.
Not only has the majority undone Grovo, it has done so in
a case that could not be more similar on its facts. The online
bulletin board in question here, Dark Moon, was the
UNITED STATES V. BROWN 15
successor to KOFD, the board at issue in Grovo. Members of
KOFD were directed to Dark Moon after the administrator of
KOFD decided to idle the website. Dark Moon, however, at
over 100 members, was nearly twice as large as KOFD.
The majority has turned a clear statement of our law into
an invitation for jury nullification. I respectfully, but
vigorously, dissent.
I
The statute Brown was convicted under, 18 U.S.C.
§ 2251(d), required the government to prove that he had
published a “notice or advertisement seeking or offering”
child pornography. Brown did not dispute that he had posted
to the board. He wanted to argue to the jury only that because
he had posted to a closed board, he had not “advertise[d]” or
put up a “notice.”
The district court correctly anticipated our holding in
Grovo. It ruled, as a matter of law, “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.”
Thus, the district court prohibited defense counsel from
arguing that the closed nature of the board necessarily means
that activity on that board was not advertising.
In Grovo, decided a year after the trial in this case, we
addressed precisely the same question. Grovo and Petersen
argued that “because their posts of KOFD were visible only
to members of that message board and not to the public as a
whole,” the evidence was not sufficient to sustain their
convictions under § 2251(d). Grovo, 826 F.3d at 1217. We
addressed the sufficiency claim in two distinct steps. First,
16 UNITED STATES V. BROWN
we addressed the whether “an advertisement for child
pornography must be published in the press or broadcast over
the air, or must otherwise be publicly and generally known.”
Id. We treated this question as one of “statutory
interpretation” and reviewed it de novo. Id. at 1213. Starting
with “the plain language of the statute,” we examined various
dictionaries and rejected Grovo and Petersen’s claims that an
advertisement had to “be published in the press or broadcast
over the air.” Id. at 1217–18 (citation omitted). We
analogized the postings to placing an ad in an alumni
magazine, a neighborhood circular, or a high school
yearbook; these would be “advertisements” “notwithstanding
that it is publicized to only a cohort of the community that
shares a particular affiliation or interest.” Id. at 1208.
Agreeing with the Tenth Circuit’s decision in United States
v. Franklin, 785 F.3d 1365 (10th Cir.), cert. denied, 136 S.
Ct. 523 (2015), we held that “advertising to a particular
subset of the public is sufficient to sustain a conviction under
the statute.” Grovo, 826 F.3d at 1218.
Only then, “[h]aving concluded a post on KOFD can
satisfy the legal definition of an advertisement under
§ 2251(d),” id. at 1219, did we turn to Grovo and Petersen’s
individual postings. We had little difficulty concluding that
there was sufficient evidence to show that Grovo and
Petersen had posted on KOFD. See id. (“[Grovo’s] post . . .
requesting pictures from the well-known child pornography
studio . . . was an ‘advertisement seeking . . . to receive’ child
pornography.” (fourth alteration in original) (quoting
18 U.S.C. § 2251(d)); id. (holding that Petersen’s two posts
were advertisements even though “they did not contain an
explicit declaration he was ‘offering child pornography’”).
UNITED STATES V. BROWN 17
II
Grovo should have been the beginning and the end of our
discussion. Because Brown does not dispute that he posted
child pornography on Dark Moon, the only question before us
is whether the posting constituted “advertising.” Grovo said,
as a matter of law, it does. The panel says it is a jury
question. These two points cannot remain simultaneously in
our heads without blowing a fuse.
The majority makes much of the fact that Grovo was a
challenge to the sufficiency of the evidence and points out the
“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.” Maj. Op. at 11. I am not sure
what the majority means by this. If the majority means that
sometimes the same evidence will be sufficient to convict and
sometimes it won’t, I couldn’t disagree more. That’s why we
have a rule of law. But if the majority means that a defendant
such as Brown should have the opportunity to show how his
case is different from Grovo, then I agree completely. I just
don’t believe that Brown has anything new to argue that
wasn’t covered in Grovo. The reason I say that with some
confidence is that Grovo was on everyone’s mind, because
the case had come out of the same district, the District of
Montana, and the appeal was pending before this court. Both
the prosecutor and Brown’s counsel referred to the district
court’s decision in Grovo by name. And Brown’s counsel
knew that he was pressing exactly the same argument counsel
for Grovo and Petersen had made. Here is the prosecutor’s
argument:
And as another example, Your Honor, a
similar argument was made in front of Judge
18 UNITED STATES V. BROWN
Molloy in another trial . . . , United States v.
Stephen Grovo and Joshua Peterson. Now
that was a bench trial, but during the Rule 29
proceedings, the defendants made a similar
argument that because KOFD was a closed
board similar to The Dark Moon, that there
could be no advertisement. And Judge
Molloy also disagreed with that.
The district court (Judge Christensen) then had the following
colloquy with counsel for Brown:
Mr. Wright, do you intend to argue that
because this was a closed board, it does not
constitute advertising—excuse me. Let me
get the exact words—“advertisement,”
“advertise,” or “notice” under the statute? Do
you intend to argue that?
Counsel responded:
I will argue that the features of the board
don’t meet the common definition, as you put
in the instruction here, Your Honor, the
common contemporary definition of “notice”
and “advertisement.”
The district court pressed the question again:
Okay. Let me reread my question. Do you
intend to argue that because this was a closed
board, it does not constitute “advertisement,”
“advertise,” or “notice” under the statute as I
have instructed the jury in how they’re to
UNITED STATES V. BROWN 19
interpret those words? Do you intend to make
that argument?
Defense counsel responded, “Yes.” The district court then
asked counsel for his best authority. Here is what counsel
said:
Well, my response is, Your Honor, that it’s
not that I can cite a case. It’s the cases we’ve
talked about and that the government just
cited, is to say, Can these cases go forward?
Is it proper to charge these people under these
cases? . . . That’s what Grovo and Peterson
were talking about.
The district court prohibited Brown’s counsel from making
the argument to the jury because the court ruled, as a matter
of law, that posting satisfied the statutory requirement of an
“advertisement.”
The majority seems to recognize that Brown’s counsel
wanted to revisit Judge Molloy’s ruling in Grovo: “[A]s 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.”’” Maj. Op. at 12 (second alteration in
original). Counsel for Brown and counsel for Grovo and
Petersen wanted to make precisely the same argument; they
wanted to tell the jury that a closed board—the “features of
the board”—would not satisfy the “common definition” of
“advertisement.” It is understandable why counsel thought he
could make this argument to Judge Christensen: Grovo had
not been decided at the time by this court; it had only been
20 UNITED STATES V. BROWN
decided by a different district judge. The majority doesn’t
have the same excuse.
The majority argues that Brown should have the
opportunity to argue that the features of the Dark Moon board
were somehow different from KOFD. The majority points to
three such features: password-protection, the “relatively few
participants” in the board, and that the “rules of the forum
required that the files be encrypted.” Maj. Op. at 12. None
of these features will help Brown. To begin, “password-
protection” and the “closed” nature of the board are
redundant features. See Maj. Op. at 5 n.2 (“The Dark Moon
bulletin board was ‘closed,’ as it was inaccessible to the
public and required a username and password to enter.”).
And we decided posting on a closed, password protected
board was advertising in Grovo. 826 F.3d at 1218–19.
Second, the “relatively few participants” feature also could
not, as a matter of law under Grovo, preclude a posting from
being an “advertisement” or a “notice.” Grovo held that
“advertising to a particular subset of the public is sufficient to
sustain a conviction under [§ 2251(d)]” and concluded that
KOFD’s closed community of 40–45 members was
sufficiently “public” to constitute advertisement. Id. at 1218.
Meanwhile, there were over 100 members of Dark Moon
worldwide. Finally, the question of encryption did not arise
as a separate argument in Grovo, and Brown’s only argument
about encryption relates to an expectation of privacy for
Fourth Amendment purposes. But if it were relevant, we
would still have to decide as a matter of law whether
encryption matters. I don’t see how it can have any bearing
on whether a posting is advertising, but the majority is free to
persuade me. The one thing we don’t get to do is leave it to
individual juries to decide whether an encrypted post, as
UNITED STATES V. BROWN 21
opposed to an unencrypted post, is an “advertisement.” As
Grovo makes clear, that is a judgment as a matter of law.
There is nothing here to take to the jury, and making the
question of “advertisement” a jury question is an invitation
for the jury to nullify the law. The Sixth Amendment’s right
to present a defense does not include the right to ask for jury
nullification. United States v. Powell, 955 F.2d 1206, 1213
(9th Cir. 1991); see also United States v. Navarro-Vargas,
408 F.3d 1184, 1202–06 (9th Cir. 2005) (en banc) (rejecting
request to instruct the grand jury on nullification). Our legal
system has long recognized “it is the duty of juries in criminal
cases to take the law from the court and apply that law to the
facts as they find them to be from the evidence.” Sparf v.
United States, 156 U.S. 51, 102 (1895). The majority opinion
invites the “anarchy [that] . . . result[s] from instructing the
jury that it may ignore the requirements of the law.” Powell,
955 F.2d at 1213.
III
Judge Molloy held that posting on a closed board was an
“advertisement” under § 2251(d). We affirmed him in
Grovo. Judge Christensen followed Judge Molloy, so we
reverse him today for “structural error.” What is Judge
Morris (or any other district judge) to do in the next case? No
matter what he decides, he has a 100 percent chance of
having a Ninth Circuit case to support him. But he has only
a 50–50 chance of being affirmed. This case cries for
correction.
I dissent.