United States v. Brown, No. 15-30148 (9th Cir. 2017)
Annotate this CaseThe Ninth Circuit reversed defendant's conviction for conspiracy to make, print, or publish "any notice or advertisement seeking or offering" child pornography. Defendant's conviction stemmed from his membership in an online bulletin board where members shared child pornography. In this case, the district court effectively ruled that, as a matter of law, the closed nature of the bulletin board was irrelevant to the question of whether an "advertisement" or a "notice" had been shown, and thus could not properly be considered by the jury. The panel held that the district court violated defendant'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. Because defendant's Sixth Amendment right to present his defense was violated, the court remanded for a new trial.
Court Description: 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 UNITED STATES V. BROWN 3 matter of “statutory interpretation”—an “advertisement” under § 2251(d).
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