Sunday, July 05, 2020

Case o' The Week: Ninth Nod for Narrow Notice -- Cox and "Making Notice" Offering Child Porn

Notice of One? 
Defendant is done.
 United States v. Sarah Cox, 2020 WL 3479648 (9th Cir. June 26, 2020), decision available here.

Players: Decision by visiting DJ Gwin, N.D. Ohio, joined by Judges R. Nelson and Bress.  

Facts: In August 2015, under the “Kik” username “JadeJeckel,” Sarah Cox exchanged texts with a man named, “Hennis.” They discussed plans to murder a mother and sexually abuse the children. Id. at *1. Roughly four months later, the pair exchanged texts again and discussed child porn. Id. at *2. Cox then used Kik to send to Hennis two Dropbox links, one of which contained child porn. Id. In the text conveying the links, Cox called them “goodies for daddy.” Id. Hennis was arrested: searches lead to Cox. Among other counts, she was charged with “making a notice offering child pornography,” in violation of 18 U.S.C. §§ 2251(d)(1)(A), 2256. Id
  Cox’s trial defense was that she was not, “JadeJeckel.” Id. Over her objection, the district court admitted the August 2015 texts about the murder of a mother and rape of children, as FRE 404(b) evidence. Id. 
  Cox was convicted after a jury trial. Id. She was sentenced to over 21 years in prison. See news article here 

Issue(s): “On appeal, Cox argues that a one-to-one communication cannot be a ‘notice or advertisement’ of child pornography under 18 U.S.C. § 2251(d)(1). She argues that the statute requires ‘something more than a one-on-one exchange.’ Because her communication ran only to Hennis, she argues there was insufficient evidence for her § 2251(d)(1) conviction.” Id. at *3. 
   “Whether 18 U.S.C. § 2251(d)(1)’s ‘notice provision applies to one-to-one messages is an issue of first impression in this circuit.” Id.  

Held:Based on the plain statutory language, we hold that one-to-one communications can satisfy the legal definition of ‘notice’ under 18 U.S.C. § 2251(d)(1). Applying this construction to the instant case, we conclude that a rational trier of fact could find that Cox made a notice offering child pornography when she sent a one-to-one electronic message linking to a Dropbox account that contained child pornography.Id. at *8.

Of Note: The Ninth’s second holding tolerates the admission of texts sent four months before the charged conduct. Id. at *7. Whatever the FRE 404(b) problems with this holding, the FRE 403 balancing is of particular concern. Id. at *8. District Judge Gwin concedes that, “As to the danger of unfair prejudice, the August 2015 messages included prejudicial evidence. In the August 2015 messages, Cox and Hennis discussed murdering a mother to steal a child and their desire to kidnap, enslave, and rape children. But other-act evidence in sex-crimes cases is often emotionally charged and inflammatory, and this does not control the Rule 403 analysis.” Id.
  Worry about Cox’s tolerance of “emotionally charged and inflammatory” “other-act” evidence when mulling the defense of sex cases: the regrettable texts preceding the charged conduct may more dangerous than the main case itself.   

How to Use: This disappointing rule of first impression in the Ninth reads “notice offering child pornography” broadly to include this case’s one-to-one text (instead of a more-natural reading, that would limit “notice” to a larger audience). In a thin silver lining, the Ninth warns that this does not mean that all “one-to-one communications” will be violations of the “notice” statute. Id. at *6. Instead, this limited holding affirms a conviction only on the facts in Cox’s case. Id. What remains is an admittedly tricky distinction to pull off, but one that may remain available in future “notice” cases.  
For Further Reading: Hidden below the pandemic headlines and behind the news of Black Lives Matter protests lurks a troubling development: the resurrection of the long-moribund Sentencing Guideline Commission. 
  For years the Commission has been unable to promulgate punitive new Guideline amendments, for want of a quorum. D.C. buzz, however, suggests that happy hiatus may now be drawing to a close. See Concerns Mount Over Possible Trump Picks For Influential Crime Panel, available here. 

Image of the USSC seal from

Steven Kalar, Federal Public Defender, N.D. Cal. Website at


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