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United States v. Grovo

United States Court of Appeals, Ninth Circuit

June 23, 2016

United States of America, Plaintiff-Appellee,
v.
Steven Grovo, Defendant-Appellant. United States of America, Plaintiff-Appellee,
v.
Joshua Petersen, Defendant-Appellant.

          Argued and Submitted March 9, 2016 Portland, Oregon

         Appeal from the United States District Court Nos. 9:13-cr-00030-DWM-12, 9:13-cr-00030-DWM-13 for the District of Montana Donald W. Molloy, District Judge, Presiding

          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.

          Before: Raymond C. Fisher and Paul J. Watford, Circuit Judges, and Donald E. Walter, District Judge. [*]

         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" 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).

          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 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 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 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 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 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 ...


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