United States v. Daniel Brown

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.