United States v. Grovo, No. 15-30016 (9th Cir. 2016)
Annotate this CaseDefendants Grovo and Petersen challenge aspects of their convictions for charges related to their roles in an online bulletin board dedicated to discussing and exchanging child pornography. The court held that the evidence was sufficient to convict defendants for engaging in a child exploitation enterprise, and for conspiracy to advertise child pornography. The definition of “advertisement” under 18 U.S.C. 2251(d) presents a question of first impression in this circuit. Assuming without deciding that an “advertisement” under section 2251(d) requires some public component, the court held that advertising to a particular subset of the public is sufficient to sustain a conviction under the statute. The court emphasized that the district court's apportioning loss between defendants was sound under United States v. Paroline. Accordingly, the court affirmed defendants' convictions. The court vacated the district court’s 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.
Court Description: 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” 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).
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