United States v. Grovo, Nos. 15-30016, 15-30027 (Fisher with Watford and Walter (W.D. La.) --- The Ninth Circuit affirmed convictions for engaging in a child exploitation enterprise under 18 U.S.C. § 2252A(g) and conspiracy to advertize child pornography under 18 U.S.C. § 2251(d), but vacated the restitution awards and remanded with instructions to disaggregate the amounts in accordance with Paroline v. United States, 134 S. Ct. 1710 (2014), and United States v. Galan, 804 F.3d 1287 (9th Cir. 2015).
The defendants operated an invitation-only online bulletin board for sharing images of children, both pornographic and otherwise. It had about 40-45 members, only some of whom had access to post pornographic images in a separate part of the site reserved only for trusted members. The FBI infiltrated the site and, after identifying the operators, seized CP images from their personal hard drives.
The Ninth Circuit held that the government presented sufficient evidence at trial support the "acting in concert with three or more other persons" element of the § 2252A(g) charge. Drawing an analogy to drug conspiracies under 21 U.S.C. § 848. the court rejected the defendant's argument that they didn't act in concert with *three* other people because individual site members posted images at discrete times, implying that the operators acted in concert with only one person at a time whenever an image was uploaded to the site. It was OK to add up the number of people who posted to the site for purposes of proving this element. Nor was liability limited by counting only the number of people who operated the message board.
The court also held that the government presented sufficient evidence of advertizing under § 2251(d). This term was not limited to communications that were made through print or broadcast media, but included communications limited to a discrete subset of the public (here, people invited to join their message board). And the advertizements in question plainly related to the sharing of child pornography, even though the message board included discussion of other topics such as non-pornographic images and avoiding detection by law enforcement.
The court vacated one defendant's restitution award and remanded for computation using the methodology described in Galan.
The decision is here: