United States v. Steven Grovo

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-30016

Plaintiff-Appellee,

D.C. No.

v. 9:13-cr-00030-DWM-13

STEVEN GROVO,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 15-30027

Plaintiff-Appellee,

D.C. No.

v. 9:13-cr-00030-DWM-12

JOSHUA PETERSEN,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the District of Montana

Donald W. Molloy, District Judge, Presiding

Argued and Submitted March 9, 2016

Portland, Oregon

Filed June 23, 2016

2 UNITED STATES V. GROVO

Before: Raymond C. Fisher and Paul J. Watford, Circuit

Judges, and Donald E. Walter, District Judge.*

Opinion by Judge Fisher

SUMMARY**

Criminal Law

The panel affirmed two defendants’ convictions for

engaging in a child exploitation enterprise under 18 U.S.C.

§ 2252A(g) and conspiracy to advertise child pornography

under 18 U.S.C. § 2251(d) for their roles in an online bulletin

board dedicated to discussing and exchanging child

pornography, vacated the restitution order, and remanded.

The panel rejected the defendants’ argument that they did

not act “in concert with three or more other persons” for

purposes of § 2252A(g), and held that the evidence supports

their convictions for participating in a child exploitation

enterprise.

On a question of first impression in this circuit, the panel

held that an “advertisement” under § 2251(d) need not

necessarily be published in the press or broadcast over the

air, and assuming without deciding that an “advertisement”

*

The Honorable Donald E. Walter, Senior United States District Judge

for the Western District of Louisiana, sitting by designation.

**

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. GROVO 3

requires some public component, advertising to a particular

subset of the public is sufficient to sustain a conviction. The

panel held that the defendants’ posts, which were shared with

a closed community of 40 to 45 individuals on the bulletin

board’s message boards, constitute advertisements under

§ 2251(d), and that the evidence is sufficient to sustain the

convictions.

Emphasizing that the district court’s method of

apportioning loss between the defendants was sound under

Paroline v. United States, 134 S. Ct. 1710 (2014), the panel

vacated the restitution order and remanded to allow the

district court to disaggregate the portion of the victim’s losses

caused by the original abuse from those attributable to

continued viewing of her image, consistent with the rule

announced in United States v. Galan, 804 F.3d 1287 (9th Cir.

2015).

COUNSEL

Stephen R. Hormel (argued), Hormel Law Office, LLC,

Spokane, Washington, for Defendant-Appellant Steven

Grovo.

Elizabeth A. Brandenburg (argued) and Marcia G. Shein, Law

Firm of Shein & Brandenburg, Decatur, Georgia, for

Defendant-Appellant Joshua Petersen.

Cyndee L. Peterson (argued), Assistant United States

Attorney; Michael W. Cotter, United States Attorney; United

States Attorney’s Office, Missoula, Montana, for Plaintiff-

Appellee.

4 UNITED STATES V. GROVO

OPINION

FISHER, Circuit Judge:

Steven Grovo, Joshua Petersen and 11 others from around

the United States were indicted for their roles in Kingdom of

Future Dreams (KOFD), an online bulletin board dedicated to

discussing and exchanging child pornography. Although the

other 11 defendants entered plea agreements in separate

cases, Grovo and Petersen proceeded to a bench trial on two

counts: a charge of engaging in a child exploitation enterprise

under 18 U.S.C. § 2252A(g) and a charge of conspiracy to

advertise child pornography under 18 U.S.C. § 2251(d).1

They were convicted on both counts.

Grovo and Petersen both challenge aspects of their

convictions, and Grovo challenges his sentence. Only three

of their grounds for appeal merit discussion here.2 First,

Grovo and Petersen argue the government failed to prove

they acted “in concert with three or more other persons” when

they participated in posting or exchanging child pornography

on KOFD’s message boards. See § 2252A(g). Second, both

argue the evidence introduced at trial does not prove they

knowingly made, printed or published any “advertisement

seeking or offering . . . to receive, exchange, buy, produce,

display, distribute, or reproduce” child pornography, see

§ 2251(d)(1), because their posts on KOFD were not

“advertisements” to the public at large, but were instead

1

All statutory citations are to title 18 of the United States Code unless

otherwise indicated.

2

For the reasons stated in a concurrently filed memorandum disposition,

we reject the defendants’ other arguments.

UNITED STATES V. GROVO 5

visible only to other KOFD members. Finally, Grovo

challenges the district court’s restitution order, arguing the

court erred in apportioning restitution.

We affirm both defendants’ convictions. Because the

district court did not have the benefit of our decision in

United States v. Galan, 804 F.3d 1287 (9th Cir. 2015), when

it crafted the restitution order, however, we vacate that order

and remand for the district court to disaggregate the losses

caused by the original sexual abuse of the victim and the

losses caused by the ongoing distribution and possession of

her images. See Galan, 804 F.3d at 1291.

I. BACKGROUND

Grovo’s and Petersen’s convictions arise from their

involvement in KOFD, an invitation-only online message

board for sharing child pornography and non-pornographic

images of children. Individuals could join KOFD only after

they were referred by an existing member and the site

administrators and other volunteer staff determined they

could be trusted. Once members were accepted to the

message board, they were able to post in various “rooms”

focusing on particular types of content. Members could share

files either by posting them directly to a new or existing

“thread” in a particular room, or, more commonly, by posting

a preview image that would link other members to a third-

party file-sharing service where they could view or download

the image or video.

The rooms on KOFD were divided into two categories:

the upper boards and the lower boards. All members of

KOFD had access to the lower boards, where they could post

non-nude images of children engaged in lascivious exhibition

6 UNITED STATES V. GROVO

of their genitals – for example, posing in sheer or revealing

underwear – in rooms such as “Princesses 9yo and Under”

and “Stunning Dolls 10yo to 15yo.” The lower boards also

contained rooms for members to discuss how to evade law

enforcement and specific rooms – such as the “Wishing

Well” and “Wishes” – where members could post requests for

images or videos from specific child pornography studios or

depicting particular child models.

To gain access to the upper boards, members typically

needed to have a record of posting on the lower boards that

demonstrated they were “friendly, cooperative members” of

the site and signaled their interest in more explicit images.

After a vetting process to determine the member could be

trusted, a site administrator would grant him access by giving

him the password to the upper boards, where members could

post and view fully nude images and videos of children

engaged in sexually explicit conduct.

KOFD’s 40 to 45 members were therefore divided into

different levels that determined their ability to access

particular content – such as the upper boards – and their

authority over the workings of KOFD as a whole.

Administrators had the broadest authority over KOFD’s

membership and the technical aspects of its management,

with the ability to admit or suspend members and manage the

content on the boards. They were assisted by Moderators,

who had more limited powers but could delete or modify

objectionable posts by members. Legionaires, who were

respected members of the board without formal

administrative authority, rounded out the volunteer “staff” of

KOFD. Non-staff members were divided into two levels

based on their ability to access the upper-level content on the

site. Castle Dwellers, the lowest level of members, were

UNITED STATES V. GROVO 7

limited to the lower section of KOFD. After undergoing the

vetting process described above, KOFD staff could grant

members the status of Castle Resident, which permitted them

access to the upper boards as well.

At trial, the government introduced extensive evidence of

the defendants’ participation in KOFD. Grovo, under the

username “Karomesis,” was actively involved in KOFD as a

Castle Resident and posted a total of 330 times in rooms on

both the upper and lower boards. In one instance, he started

a thread in the upper board which he titled “LEGENDARY

WIN . . .” and gave the description “my sin . . . my soul . . .

my Adreana (Supermodels 7-17)”. In it, he posted preview

images of a prepubescent girl wearing sheer lingerie that

exposed her genitals. Four KOFD members, including two

staff members, thanked Grovo for his post. Grovo also

started a thread in the “Wishing Well” room of the lower

boards seeking images of a specific model from Magic-

image.com, a popular child pornography studio, and thanked

other members who suggested he could join an online group

to find the images by using a prepaid and untraceable Visa or

Mastercard. He also started a thread entitled “FULL

Anonymity” in the lower boards, advising other members on

how to use public or unsecured wireless internet connections

to make it harder for law enforcement to identify them. He

also began another thread alerting KOFD members to a

similar child exploitation message board whose owner had

been arrested on charges related to child pornography.

In addition, the government introduced evidence Grovo

replied to threads started by other members in both the upper

and lower boards. In an upper-board thread containing

images of prepubescent children nude and engaged in

sexually explicit activities, Grovo wrote “gracias amigo” to

8 UNITED STATES V. GROVO

the thread’s creator and commented on the appearance of the

models. In a lower-board thread called “Bottom Dwellers –

For connoisseurs of young female backsides,” Grovo posted

an image of a prepubescent girl wearing a thong and posing

on all fours with the camera focused on her buttocks and

genitals, accompanied by the comment, “another finely

clefted set of buttocks. I’ve always had a fondness for this

girls ass, It deserves it’s [sic] own temple IMHO.” Eighteen

other members commented on the thread and shared images

or links.

Petersen, under the username “aqualung,” was a Castle

Resident and posted 440 times on both the upper and lower

boards of KOFD. Like Grovo, Petersen both created new

threads and replied to threads created by other members. For

example, Petersen created a thread in the upper boards

entitled “hot LS vid,” referring to the popular child

pornography producer LS Studios. The thread included a link

to a video of two nude prepubescent girls engaging in

sexually explicit conduct. Another thread – which Petersen

created and named “LS at its best :)” – linked to a

downloadable file of numerous images of child pornography.3

Petersen also commented on a thread on the upper boards

entitled “Oceane Dreams – Sets 1 through 27,” which referred

to Oceane, a popular underage model, and linked to a third-

party site where users could download a file containing

numerous images. Petersen thanked the poster on behalf of

all the members who downloaded the file without

3

In both of these instances, the Federal Bureau of Investigation (FBI)

was unable to recover the content from KOFD, but recovered content from

Petersen’s hard drive with identical file names to the posted content and

which was consistent with the video and images described in members’

posts thanking Petersen.

UNITED STATES V. GROVO 9

commenting. Four other members also posted their

appreciation in the thread.

Petersen also created threads in the lower boards designed

to help other KOFD members. In one, he posted a link to a

search engine that would enable members to “just type in the

model or the site” they were seeking in order to find images.

He also created a thread entitled “the basics of surfin safe”

that advised other members on how to disguise their online

identities and noted “it takes time and effort but worth it . . .

time in jail is lots worse.”

At the close of the government’s case, both Grovo and

Petersen moved to dismiss the charges against them under

Federal Rule of Criminal Procedure 29, arguing the

government did not prove they each acted “in concert with

three or more other persons” to knowingly receive or

distribute child pornography in a child exploitation enterprise,

§ 2252A(g), or that their posts on KOFD constituted

“advertisement[s] seeking or offering” child pornography,

§ 2251(d)(1). The district court denied their motions,

concluding there was “[c]learly” an agreement between three

or more persons to engage in illegal conduct on KOFD and

that offering child pornography to the “closed community” of

KOFD members constituted an “advertisement” under the

statute.

The court convicted the defendants on both charges at a

bench trial. It sentenced Grovo to 360 months in prison and

Petersen to 240 months. It also considered the factors set

forth in Paroline v. United States, 134 S. Ct. 1710 (2014), and

awarded restitution to one victim, holding all those convicted

jointly and severally liable for $29,859.00. Grovo and

Petersen both timely appealed.

10 UNITED STATES V. GROVO

II. DISCUSSION

We review de novo the sufficiency of the evidence,

including questions of statutory interpretation. See United

States v. Garcia, 768 F.3d 822, 827 (9th Cir. 2014). In doing

so, we view the evidence in the light most favorable to the

prosecution and ask whether any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt. See United States v. Nevils, 598 F.3d 1158,

1163–64 (9th Cir. 2010) (en banc). We review the district

court’s calculation of the amount of a restitution award for

abuse of discretion. See United States v. Peterson, 538 F.3d

1064, 1074 (9th Cir. 2008).

A.

Both Grovo and Petersen challenge the sufficiency of the

evidence underlying their convictions for engaging in a child

exploitation enterprise. To prove those charges, the

government needed to show that (1) Grovo and Petersen

knowingly distributed, received or accessed with intent to

view child pornography “as a part of a series of felony

violations constituting three or more separate incidents,”

(2) the incidents “involv[ed] more than one victim” and

(3) they each “committ[ed] those offenses in concert with

three or more other persons.” § 2252A(g). Only the third

element is at issue here.

1.

The defendants argue they did not act “in concert with

three or more other persons” for the purposes of the statute.

In particular, Grovo contends none of his actions were “in

concert with” other members of the board because each

UNITED STATES V. GROVO 11

member acted alone and posted at different times. Petersen

argues that only KOFD’s creators and staff could be guilty of

engaging in a child exploitation enterprise, and that there was

insufficient evidence to conclude he had acted in concert with

that enterprise. Neither argument is persuasive.

We begin by construing the language of the statute. The

Supreme Court has recognized that “the plain meaning of the

phrase ‘in concert’ signifies mutual agreement in a common

plan or enterprise,” and requires the same mens rea as a

conspiracy charge. Rutledge v. United States, 517 U.S. 292,

300 (1996) (construing 21 U.S.C. § 848(c)’s reference to acts

“undertaken . . . in concert with five or more other persons”).

Two other circuits have therefore concluded the “in concert

with” element of § 2252A(g) requires proof of an agreement

with three or more other persons to commit the series of

predicate felonies. See United States v. Daniels, 653 F.3d

399, 413 (6th Cir. 2011) (“[F]or someone to have acted ‘in

concert’ with [the defendant] . . . , he or she must have had

the mens rea required to ‘conspire’ with him to commit that

offense.”); United States v. Wayerski, 624 F.3d 1342, 1351

(11th Cir. 2010) (holding the “in concert with” element

“requires the same proof of an agreement that would also

violate [a] conspiracy [charge]” for the same predicate

offenses).

We agree with these circuits that the Supreme Court’s

construction of 21 U.S.C. § 848 informs our reading of

§ 2252A(g). Both sections criminalize analogous behavior:

Section 848 targets continuing criminal drug enterprises

whereas § 2252A targets continuing enterprises dedicated to

distributing, receiving or accessing child pornography.

Furthermore, the two statutes use similar language: Like

§ 2252A(g), § 848 prohibits committing a “series of

12 UNITED STATES V. GROVO

violations” “in concert with . . . other persons.” 21 U.S.C.

§ 848(c)(2). We see no reason to depart from our sister

circuits’ sensible construction of the statute.

The elements of conspiracy are well-trod territory in our

precedent; the “gist” of the offense “is the confederation or

combination of minds.” United States v. Lapier, 796 F.3d

1090, 1095 (9th Cir. 2015) (quoting United States v. Basurto,

497 F.2d 781, 793 (9th Cir. 1974)). Read in this light,

§ 2252A(g)’s “in concert with” prong requires the

government to prove the defendant and three others had “not

only the opportunity” to unite for a common purpose, “but

also the actual meeting of the minds.” Id. (quoting Basurto,

497 F.2d at 793). Here, that means proof, consistent with the

general mens rea of conspiracy, that Grovo and Petersen each

agreed in a common enterprise with at least three other

persons to distribute, receive or access with intent to view

child pornography. See § 2252A(g).

It is an entirely separate proposition to suggest the statute

also requires that each individual predicate felony have been

committed “in concert with” three other persons. We agree

with the Sixth Circuit that the more natural reading of

§ 2252A(g) is that “the required total of three other persons

may be tallied by considering the predicate counts together.”

Daniels, 653 F.3d at 412. The statute proscribes committing

“a series of felony violations” and then says the defendant

must “commit[] those offenses” – not “each offense” – “in

concert with three or more other persons.” § 2252A(g)

(emphasis added). The “in concert” requirement is therefore

best read as referring to the “series” of predicate felonies,

rather than each offense individually.

UNITED STATES V. GROVO 13

Grovo argues the members’ activities on KOFD could not

have occurred “in concert” because each member posted

individually and at different times, often on different days,

and could review other members’ posts at their own leisure.

We reject this suggestion, however, because it misstates the

requirement of the statute. As noted above, § 2252A(g)’s

reference to committing the predicate series of violations “in

concert” with others requires proof, consistent with the

general mens rea of conspiracy, that the defendant agreed in

a common enterprise with three other persons to distribute,

receive or access with intent to view child pornography.

§ 2252A(g)(2). Grovo’s reading of the statute would impose

the anomalous and atextual requirement that participants in a

child exploitation enterprise act simultaneously. That has

never been required to support a showing of conspiracy. On

the contrary, “[o]ne may join a conspiracy already formed

and in existence, and be bound by all that has gone on before

in the conspiracy, even if unknown to him.” United States v.

Knight, 416 F.2d 1181, 1184 (9th Cir. 1969); see also United

States v. Bibbero, 749 F.2d 581, 588 (9th Cir. 1984)

(upholding a conviction for conspiracy to import drugs where

the defendant and his coconspirators acted at different times

and in different locations).

Petersen’s argument that only the creators or staff of

KOFD can be liable for the entire child exploitation

enterprise is equally unpersuasive. In his view, § 2252A(g)

criminalizes the creation of the exploitation enterprise itself

– here, the KOFD message board – but does not reach the

members who merely participated in the exchange of child

pornography without creating or managing the website. But

this distinction appears nowhere in the statute. Section

2252A(g) merely requires that the defendant commit the

series of predicate offenses “in concert with three or more

14 UNITED STATES V. GROVO

other persons,” not three or more administrators or organizers

of the scheme. § 2252A(g) (emphasis added). In this respect,

the text of § 2252A(g) is broader than that of 21 U.S.C.

§ 848, considered in Rutledge, which specifically requires the

offenses be undertaken “in concert with five or more other

persons with respect to whom such person occupies a position

of organizer, a supervisory position, or any other position of

management.” We will not override Congress’ decision to

use the word “person” by reading the statute instead to

specifically require an organizer, supervisor or manager. See

also Wayerski, 624 F.3d at 1348 (affirming convictions under

§ 2252A(g) without requiring the participation of

administrators or staff).

2.

So long as Grovo and Petersen acted in an agreed-upon

common enterprise with at least three other KOFD members,

they are guilty of participating in a child exploitation

enterprise in violation of § 2252A(g). Taking the evidence in

the light most favorable to the prosecution, we conclude a

rational trier of fact could have found beyond a reasonable

doubt that this was the case. See Nevils, 598 F.3d at 1163–64.

Petersen urges, correctly, that a member’s mere presence

in the upper level of the KOFD forums cannot constitute

agreement to a common enterprise. See, e.g., United States

v. Melchor-Lopez, 627 F.2d 886, 891 (9th Cir. 1980)

(“[S]imple knowledge, approval of, or acquiescence in the

object or purpose of the conspiracy, without an intention and

agreement to accomplish a specific illegal objective, is not

sufficient to make one a conspirator.”). Although the

government must show some actual meeting of minds

between the coconspirators, it may do so “through

UNITED STATES V. GROVO 15

‘circumstantial evidence that defendants acted together in

pursuit of a common illegal goal.’” Lapier, 796 F.3d at 1095

(quoting United States v. Mincoff, 574 F.3d 1186, 1192 (9th

Cir. 2009)). “A formal agreement is not necessary; rather the

agreement may be inferred from the defendants’ acts pursuant

to the scheme, or other circumstantial evidence.” Id. (quoting

Bibbero, 749 F.2d at 587). Coordination between

conspirators, for example, “is strong circumstantial proof of

agreement,” United States v. Iriarte-Ortega, 113 F.3d 1022,

1024 (9th Cir. 1997), and “[o]nce the existence of a

conspiracy is established, evidence of only a slight

connection is necessary to support a conviction of knowing

participation in that conspiracy,” United States v. Sanchez-

Mata, 925 F.2d 1166, 1167 (9th Cir. 1991).

The government introduced ample proof at trial that

Grovo and Petersen both were more than merely present on

the KOFD boards, and did more than simply acquiesce in the

exchange of child pornography between its members. On the

contrary, they were active participants in the community, and

a reasonable factfinder could infer from their activities that

they agreed with other members to further the board’s

common goal of sharing, accessing and viewing child

pornography. Both defendants posted hundreds of times on

KOFD, gained admission to the upper level of the KOFD

board after being admitted and elevated through a vouching

process by the Administrators, Moderators and Legionaires,

repeatedly accessed and distributed child pornography in

accordance with the rules of various forums, repeatedly

thanked other members for posting child pornography, and

posted tips on how to ensure anonymity and security from

law enforcement.

16 UNITED STATES V. GROVO

Much of this evidence also supports the court’s finding

that Grovo’s and Petersen’s activities were in coordination

with three or more persons. Many of the KOFD threads

introduced at trial involved the individual defendants and

three or more other members either posting content or

responding appreciatively to others’ posts. These interactions

alone support a finding the defendants acted in concert with

three or more individuals. Moreover, as noted above, the

defendants had to be referred by an existing member to join

KOFD and underwent the board’s vetting process to become

Castle Residents, which had to be authorized by at least one

of KOFD’s three administrators and may have involved

discussions among the rest of KOFD’s seven-member staff.

In sum, we have no trouble concluding a reasonable

factfinder could determine Grovo and Petersen acted “in

concert with” at least three other individuals. The evidence

supports their convictions for participating in a child

exploitation enterprise in violation of § 2252A(g), and the

district court did not err in denying their Rule 29 motions.

B.

Grovo and Petersen next challenge the sufficiency of the

evidence for their convictions of conspiracy to advertise child

pornography in violation of § 2251(d). To convict, the

government needed to prove (1) an agreement between two

or more persons to commit the crime of advertising child

pornography; and (2) that Grovo and Petersen intended to

advertise child pornography. Cf. United States v. Moe,

781 F.3d 1120, 1124 (9th Cir. 2015) (describing the generic

elements of conspiracy). A defendant is guilty of advertising

child pornography under § 2251(d) if he “knowingly makes,

prints, or publishes, or causes to be made, printed, or

UNITED STATES V. GROVO 17

published, any . . . advertisement seeking or offering . . . to

receive, exchange, buy, produce, display, distribute, or

reproduce any visual depiction” of child pornography.4

Grovo and Petersen contend their posts were not

“advertisements” for child pornography, and, therefore, argue

the evidence at trial was insufficient to support their

convictions.

1.

The definition of “advertisement” under § 2251(d)

presents a question of first impression in this circuit. In the

defendants’ view, an advertisement for child pornography

must be published in the press or broadcast over the air, or

must otherwise be publicly and generally known. They argue

that, because their posts on KOFD were visible only to

members of that message board and not to the public as a

whole, they cannot be guilty of advertising child

pornography.

Again, in questions of statutory interpretation, “our

starting point is the plain language of the statute.” United

States v. Williams, 659 F.3d 1223, 1225 (9th Cir. 2011).

Webster’s offers the following definitions of “advertisement”:

1. “[t]he action of advertising: a calling

attention to or making known” – where

“advertising” is further defined as “the

4

The statute also forbids knowingly making, printing, or publishing

“any notice . . . seeking or offering” child pornography. § 2251(d).

Because the indictment charged Grovo and Petersen with conspiring only

to advertise child pornography, we need not determine what constitutes a

“notice” under the statute.

18 UNITED STATES V. GROVO

action of calling something . . . to the

attention of the public esp. by means

of printed or broadcas t paid

announcements”;

2. “a calling to public attention: publicity”;

3. “a public notice; esp: a paid notice or

announcement published in some public

print . . . or broadcast over radio or

television.”

Advertisement, Webster’s Third Int’l Dictionary 31 (ed.

Philip Babcock Grove 2002). The American Heritage

Dictionary similarly defines “advertisement” as a “[a] notice,

such as a poster or a paid announcement in the print,

broadcast, or electronic media, designed to attract public

attention or patronage.” Advertisement, Am. Heritage

Dictionary 25 (5th ed. 2011). Black’s Law Dictionary has a

narrower, commercial definition, describing an advertisement

as “[a] commercial solicitation; an item of published or

transmitted matter made with the intention of attracting

clients or customers.” Advertisement, Black’s Law

Dictionary (10th ed. 2014).

None of these definitions limits an advertisement to

publication in the press or broadcast over the air. At most,

they merely note that an advertisement “especially” includes

communications “such as” those published in the press or

broadcast. The means of publication or broadcast are not the

definitive features of an “advertisement,” so long as the

advertisement calls attention to its subject or makes a

particular thing known. We therefore hold that an

UNITED STATES V. GROVO 19

advertisement need not necessarily be published in the press

or broadcast over the air.

To be sure, four of the five definitions above involve

some form of “public notice” or calling “public attention” to

something. Although this supports the defendants’ argument

that an “advertisement” may require some public component,

it does not compel us to adopt their argument that an

“advertisement” must be targeted to the entire public as a

whole. Assuming without deciding that an “advertisement”

under § 2251(d) requires some public component, we hold

that advertising to a particular subset of the public is

sufficient to sustain a conviction under the statute.5

Grovo urges us to consider dictionary definitions

suggesting “public” may refer to matters which are “exposed

to general view” or “open.” Public, Webster’s Third Int’l

Dictionary 1836. His argument ignores other definitions,

however, which refer to matters relating to “community

interests as opposed to private affairs,” or matters “accessible

to or shared by all members of the community,” and which

clarify the public may be either “the people as a whole” or

may refer – with equal validity – to some “organized body of

people” or “a group of people distinguished by common

interests or characteristics.” Id.; see also Public, Am.

Heritage Dictionary 1424 (defining “public” to include “[a]

group of people sharing a common interest”). Under these

5

Both defendants argue they benefit from the rule of lenity, but that rule

applies “only when a criminal statute contains a ‘grievous ambiguity or

uncertainty,’ and ‘only if, after seizing everything from which aid can be

derived,’ the Court ‘can make no more than a guess as to what Congress

intended.’” Ocasio v. United States, 136 S. Ct. 1423, 1434 n.8 (2016)

(quoting Muscarello v. United States, 524 U.S. 125, 138–39 (1998)). That

is not the case here.

20 UNITED STATES V. GROVO

definitions, which accord with a commonsense understanding

of what it means to advertise publicly, something may be

public even though it is directed only to a subset of the

population as a whole. We would call an advertisement

placed in an alumni magazine, neighborhood circular or high

school yearbook an “advertisement,” for example,

notwithstanding that it is publicized to only a cohort of the

community that shares a particular affiliation or interest.

The Tenth Circuit reached a similar conclusion in United

States v. Franklin, 785 F.3d 1365 (10th Cir. 2015), where the

defendant subscribed to a website that allowed him to accept

a closed community of subscribers as his “tribe,” and with

whom he shared pornographic images of children. Id. at

1367. The court held the defendant’s communications to his

tribe satisfied the statute’s definition of an advertisement,

concluding that even if the word had a “public” component,

that component could be construed to encompass a “subset of

the public,” such as “an informal group of like-minded

individuals.” Id. at 1369. It rejected the defendant’s

assumption that in order to be public, an advertisement must

be “‘indiscriminately’ and ‘impersonally’ made available to

everyone,” observing “[t]he public consists of numerous

groups,” and “[t]hough the number of members” in a

particular group may be “limited,” communications to the

membership would remain public even if they were not made

known to the entire public at large. Id.

Franklin’s reasoning accords with the view of other

courts that communications to specific, closed communities

can constitute advertisement within the meaning of § 2251.

See Wayerski, 624 F.3d at 1348 (holding defendants liable

under § 2251(d) when they exchanged pornography within a

limited group of 45 individuals); United States v. Rowe,

UNITED STATES V. GROVO 21

414 F.3d 271, 276 (2d Cir. 2005) (holding that posting to a

chat room supported a conviction under § 2251(c)).

Here, the defendants’ posts were shared with a closed

community of 40 to 45 individuals on the KOFD message

boards. Their posts constitute advertisements under

§ 2251(d).6

2.

Having concluded that a post on KOFD can satisfy the

legal definition of an advertisement under § 2251(d), we turn

to the defendants’ individual motions challenging the

sufficiency of the evidence underlying their convictions. We

conclude the evidence is sufficient to sustain both defendants’

convictions.

As an initial matter, a reasonable factfinder could

determine KOFD involved a conspiracy dedicated to

advertising – and, indeed, exchanging and viewing – child

pornography. A former member of KOFD testified its

“theme” was “models under the age of 18,” which included

child pornography. Notwithstanding KOFD’s general rule

purporting to forbid members from posting child

pornography, members regularly posted and requested child

pornography with the acquiescence and participation of the

board administrators. Specific rooms on the board were

designated for particular types of child pornography, and the

6

Petersen’s argument that § 2251(d) and (e) apply only when a

defendant has produced the pornography in question is foreclosed by

United States v. Williams, 659 F.3d at 1225, which held there is “no

requirement that a defendant personally produce child pornography in

order for criminal liability to attach” under § 2251(d).

22 UNITED STATES V. GROVO

“Wishing Well” allowed members to request images

produced by specific studios or depicting specific underage

models. Furthermore, members were accepted to KOFD and

advanced to the upper levels based in part on their

demonstrated interest in child pornography.

The evidence against Grovo was sufficient to allow a

rational factfinder to conclude beyond a reasonable doubt that

he participated in KOFD with an intent to advertise child

pornography. His post in the Wishing Well requesting

pictures from the well-known child pornography studio

Magic-image.com was an “advertisement seeking . . . to

receive” child pornography from other members. § 2251(d).

The evidence against Petersen was also sufficient. He

argues his activities were “ambiguous” and observes there is

no evidence that he ever posted to the Wishing Well itself.

The first of these contentions is wrong; the second is

irrelevant. Among Petersen’s other posts, he started two

threads – one entitled “hot LS vid,” the other “LS at its best

:)” – both of which included video and image files. Although

the government was unable to download the attached files

from links posted to KOFD, it recovered files with identical

file names from Petersen’s computer that contained child

pornography consistent with the descriptions in other

members’ appreciative responses to Petersen’s posts. The

evidence identified “LS” as the name of one of the most

popular child pornography studios. A rational factfinder

could conclude beyond a reasonable doubt that these two

posts were advertisements “offering to . . . display” child

pornography to other KOFD members. § 2251(d)(1).

Petersen’s posts are not ambiguous merely because they did

not contain an explicit declaration he was “offering child

pornography.” On the contrary, no “particular magic words

UNITED STATES V. GROVO 23

or phrases need to be included” to make a communication an

advertisement. See Rowe, 414 F.3d at 277 (quoting United

States v. Pabon-Cruz, 255 F. Supp. 2d 200, 218 (S.D.N.Y.

2003)).

Because these two KOFD threads support Petersen’s

conviction, the absence of additional posts in the Wishing

Well itself is immaterial. The government presented ample

evidence at trial showing KOFD members, including the

defendants, advertised child pornography in other rooms

throughout the upper and lower boards.

C.

Finally, Grovo challenges the district court’s method of

calculating restitution. Although we find his arguments

unpersuasive, we believe the district court’s methodology for

determining restitutionary losses was flawed in light of our

subsequent decision in United States v. Galan, 804 F.3d 1287

(9th Cir. 2015). We therefore vacate the restitution order and

remand for recalculation.

Under § 2259, a district court must order defendants “to

pay the victim [of child pornography] . . . the full amount of

the victim’s losses as determined by the court.” In Paroline

v. United States, 134 S. Ct. 1710 (2014), the Supreme Court

established that restitution under § 2259 is proper “only to the

extent the defendant’s offense proximately caused a victim’s

losses,” id. at 1722, and identified several factors a district

court “might consider” in tailoring an award based on

proximate causation, id. at 1728. These factors “could

include” (1) the number of past criminal defendants who

contributed to the victim’s general losses, (2) a reasonable

prediction of future offenders likely to be convicted for

24 UNITED STATES V. GROVO

crimes contributing to the victim’s general losses, (3) a

reasonable estimate of the broader number of offenders

involved, (4) whether the defendant reproduced or distributed

images of the victim, (5) whether the defendant had any

connection to the initial production of images, and (6) how

many images of the victim the defendant possessed. See id.

Applying Paroline, the district court here determined one

victim’s general losses totaled $476,500,7 then divided that

total by the number of previous restitution orders entered in

other cases involving the same victim, concluded the

Paroline factors did not warrant further modifying the award

and added the victim’s legal expenses to reach a total

restitution amount of $29,859, for which the defendants were

jointly and severally liable.

Grovo first argues the district court erred in failing to

fashion restitution “in an amount that comports with [his]

relative role in the causal process.” Id. at 1727. But Paroline

did not abrogate the longstanding rule that a defendant

convicted of conspiracy is liable for restitution for “not only

those [harms] resulting from the defendant’s individual

actions, but also others caused by the conspiracy itself.”

United States v. Laney, 189 F.3d 954, 965 (9th Cir. 1999).

Indeed, Paroline expressly distinguished cases in which

wrongdoers act in concert with each other, see 134 S. Ct. at

1725, and derived its proximate causation rule from a

statutory provision requiring restitution for any “losses

suffered by the victim as a proximate result of the offense.”

Id. at 1720–21 (quoting § 2259(b)(3)(F)). When the

“offense” is conspiracy, Paroline requires restitution for any

7

The district court denied restitution to another victim, a determination

that is not at issue on appeal.

UNITED STATES V. GROVO 25

losses proximately caused by the conspiracy – not those

caused by the individual defendant.

Grovo also argues the district court’s determination of

relative causation was an abuse of discretion because

application of the Paroline factors should have reduced the

value of the victim’s losses. But Paroline adopted a flexible

approach to causation, see id. at 1723–24, which gives district

courts “wide discretion” in fashioning restitution orders, id.

at 1729. Here, the district court properly considered each

Paroline factor in determining the relative causal significance

of the defendants’ conspiratorial conduct. It first divided the

total amount of general losses by the number of previous

restitution orders (factor 1) and concluded “[t]here is no

information on which to reasonably predict future offenders”

(factors 2 and 3). It then noted the KOFD board had one

image of the victim (factor 6) that had been viewed 29 times

(factor 4), but the defendants had not been involved in

producing the image (factor 5). Concluding “these factors do

not show a need to impose a greater award of restitution than

those general losses attributable to the conspiracy,” the court

did not further modify the award based on the Paroline

factors.

Grovo suggests the district court should instead have

applied a “tiering” analysis that groups defendants together

based on the Paroline factors, as the district court did in

United States v. Gamble, 2015 WL 4162924 (E.D. Tenn. July

9, 2015). But Paroline expressly eschewed any “rigid

formula” and suggested its factors “should rather serve as

rough guideposts.” 134 S. Ct. at 1728; see id. (“[I]t is neither

necessary nor appropriate to prescribe a precise algorithm for

determining the proper restitution amount.”). The district

26 UNITED STATES V. GROVO

court plainly attempted to determine the conspiracy’s relative

causal role and duly considered each Paroline factor.

Notwithstanding the district court’s careful and thorough

examination of the Paroline factors, however, we must vacate

the restitution order and remand for recalculation of the

victim’s general losses under the rule articulated in United

States v. Galan.8 In Galan – which we decided after the

sentencing below – we held a district court must, “to the

extent possible,” disaggregate losses caused by “the original

abuser’s actions” and losses caused by “the ongoing

distribution and possession of images of that original abuse.”

Galan, 804 F.3d at 1290–91. The district court, however,

concluded below that “[t]he disaggregation of costs is not

necessarily a brightline . . . and the continued harm and abuse

arising out of the viewing of child pornography images may

be part of a continuing, concerted harm,” drawing that

proposition in part from the district court’s decision in Galan,

which we had not yet overruled. It then determined that the

“total amount of [the victim’s] general losses” was equal to

the total future treatment costs the victim expected to incur in

her lifetime. As in Galan, the district court reached this

determination by relying on a psychological report that

focused “primarily on the resulting harms and costs from her

initial abuse” and showed only that her ongoing costs were

“at least in part related to” – not caused by – “the continuing

traffic in her image.” The injuries caused by the initial abuse

8

Because the government raised Galan in a citation of supplemental

authorities submitted to the court under Federal Rule of Appellate

Procedure 28(j) and the parties addressed it at oral argument, the issue is

properly before us. Although the government argues we should review for

plain error, we do not do so where, as here, “the new issue arises while the

appeal is pending because of a change in the law.” United States v.

Flores-Payon, 942 F.2d 556, 558 (9th Cir. 1991).

UNITED STATES V. GROVO 27

may certainly have been aggravated by subsequent viewing,

but neither the district court nor the psychological report

concluded subsequent viewing caused all of the victim’s

losses.

Under Galan, that failure to disaggregate losses caused by

the initial abuse was an abuse of discretion, and we must

vacate and remand for recalculation of the victim’s general

losses. We emphasize, however, that the district court’s

method of apportioning that loss between the defendants here

was sound under Paroline. After the court properly

disaggregates the victim’s general losses, it is therefore

permitted to reapply that method in reaching the individual

restitution amount.

III. CONCLUSION

For the foregoing reasons, we affirm the defendants’

convictions under § 2252A(g) and § 2251(d). We vacate the

district court’s restitution order and remand to allow the

district court to disaggregate the portion of the victim’s losses

caused by the original abuse from those attributable to

continued viewing of her image, consistent with the rule

announced in United States v. Galan.

AFFIRMED IN PART; VACATED AND

REMANDED IN PART.