United States v. Steven Grovo , 826 F.3d 1207 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30016
Plaintiff-Appellee,
D.C. No.
v. 9:13-cr-00030-DWM-13
STEVEN GROVO,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 15-30027
Plaintiff-Appellee,
D.C. No.
v. 9:13-cr-00030-DWM-12
JOSHUA PETERSEN,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted March 9, 2016
Portland, Oregon
Filed June 23, 2016
2 UNITED STATES V. GROVO
Before: Raymond C. Fisher and Paul J. Watford, Circuit
Judges, and Donald E. Walter, District Judge.*
Opinion by Judge Fisher
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”
*
The Honorable Donald E. Walter, Senior United States District Judge
for the Western District of Louisiana, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
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).
COUNSEL
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.
4 UNITED STATES V. GROVO
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
1
All statutory citations are to title 18 of the United States Code unless
otherwise indicated.
2
For the reasons stated in a concurrently filed memorandum disposition,
we reject the defendants’ other arguments.
UNITED STATES V. GROVO 5
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
6 UNITED STATES V. GROVO
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
UNITED STATES V. GROVO 7
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
8 UNITED STATES V. GROVO
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
3
In both of these instances, the Federal Bureau of Investigation (FBI)
was unable to recover the content from KOFD, but recovered content from
Petersen’s hard drive with identical file names to the posted content and
which was consistent with the video and images described in members’
posts thanking Petersen.
UNITED STATES V. GROVO 9
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 and
that offering child pornography to the “closed community” of
KOFD members constituted an “advertisement” under the
statute.
The court convicted the defendants on both charges at a
bench trial. It sentenced Grovo to 360 months in prison and
Petersen to 240 months. It also considered the factors set
forth in Paroline v. United States, 134 S. Ct. 1710 (2014), and
awarded restitution to one victim, holding all those convicted
jointly and severally liable for $29,859.00. Grovo and
Petersen both timely appealed.
10 UNITED STATES V. GROVO
II. DISCUSSION
We review de novo the sufficiency of the evidence,
including questions of statutory interpretation. See United
States v. Garcia, 768 F.3d 822, 827 (9th Cir. 2014). In doing
so, we view the evidence in the light most favorable to the
prosecution and ask whether any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt. See United States v. Nevils, 598 F.3d 1158,
1163–64 (9th Cir. 2010) (en banc). We review the district
court’s calculation of the amount of a restitution award for
abuse of discretion. See United States v. Peterson, 538 F.3d
1064, 1074 (9th Cir. 2008).
A.
Both Grovo and Petersen challenge the sufficiency of the
evidence underlying their convictions for engaging in a child
exploitation enterprise. To prove those charges, the
government needed to show that (1) Grovo and Petersen
knowingly distributed, received or accessed with intent to
view child pornography “as a part of a series of felony
violations constituting three or more separate incidents,”
(2) the incidents “involv[ed] more than one victim” and
(3) they each “committ[ed] those offenses in concert with
three or more other persons.” § 2252A(g). Only the third
element is at issue here.
1.
The defendants argue they did not act “in concert with
three or more other persons” for the purposes of the statute.
In particular, Grovo contends none of his actions were “in
concert with” other members of the board because each
UNITED STATES V. GROVO 11
member acted alone and posted at different times. Petersen
argues that only KOFD’s creators and staff could be guilty of
engaging in a child exploitation enterprise, and that there was
insufficient evidence to conclude he had acted in concert with
that enterprise. Neither argument is persuasive.
We begin by construing the language of the statute. The
Supreme Court has recognized that “the plain meaning of the
phrase ‘in concert’ signifies mutual agreement in a common
plan or enterprise,” and requires the same mens rea as a
conspiracy charge. Rutledge v. United States, 517 U.S. 292,
300 (1996) (construing 21 U.S.C. § 848(c)’s reference to acts
“undertaken . . . in concert with five or more other persons”).
Two other circuits have therefore concluded the “in concert
with” element of § 2252A(g) requires proof of an agreement
with three or more other persons to commit the series of
predicate felonies. See United States v. Daniels, 653 F.3d
399, 413 (6th Cir. 2011) (“[F]or someone to have acted ‘in
concert’ with [the defendant] . . . , he or she must have had
the mens rea required to ‘conspire’ with him to commit that
offense.”); United States v. Wayerski, 624 F.3d 1342, 1351
(11th Cir. 2010) (holding the “in concert with” element
“requires the same proof of an agreement that would also
violate [a] conspiracy [charge]” for the same predicate
offenses).
We agree with these circuits that the Supreme Court’s
construction of 21 U.S.C. § 848 informs our reading of
§ 2252A(g). Both sections criminalize analogous behavior:
Section 848 targets continuing criminal drug enterprises
whereas § 2252A targets continuing enterprises dedicated to
distributing, receiving or accessing child pornography.
Furthermore, the two statutes use similar language: Like
§ 2252A(g), § 848 prohibits committing a “series of
12 UNITED STATES V. GROVO
violations” “in concert with . . . other persons.” 21 U.S.C.
§ 848(c)(2). We see no reason to depart from our sister
circuits’ sensible construction of the statute.
The elements of conspiracy are well-trod territory in our
precedent; the “gist” of the offense “is the confederation or
combination of minds.” United States v. Lapier, 796 F.3d
1090, 1095 (9th Cir. 2015) (quoting United States v. Basurto,
497 F.2d 781, 793 (9th Cir. 1974)). Read in this light,
§ 2252A(g)’s “in concert with” prong requires the
government to prove the defendant and three others had “not
only the opportunity” to unite for a common purpose, “but
also the actual meeting of the minds.” Id. (quoting Basurto,
497 F.2d at 793). Here, that means proof, consistent with the
general mens rea of conspiracy, that Grovo and Petersen each
agreed in a common enterprise with at least three other
persons to distribute, receive or access with intent to view
child pornography. See § 2252A(g).
It is an entirely separate proposition to suggest the statute
also requires that each individual predicate felony have been
committed “in concert with” three other persons. We agree
with the Sixth Circuit that the more natural reading of
§ 2252A(g) is that “the required total of three other persons
may be tallied by considering the predicate counts together.”
Daniels, 653 F.3d at 412. The statute proscribes committing
“a series of felony violations” and then says the defendant
must “commit[] those offenses” – not “each offense” – “in
concert with three or more other persons.” § 2252A(g)
(emphasis added). The “in concert” requirement is therefore
best read as referring to the “series” of predicate felonies,
rather than each offense individually.
UNITED STATES V. GROVO 13
Grovo argues the members’ activities on KOFD could not
have occurred “in concert” because each member posted
individually and at different times, often on different days,
and could review other members’ posts at their own leisure.
We reject this suggestion, however, because it misstates the
requirement of the statute. As noted above, § 2252A(g)’s
reference to committing the predicate series of violations “in
concert” with others requires proof, consistent with the
general mens rea of conspiracy, that the defendant agreed in
a common enterprise with three other persons to distribute,
receive or access with intent to view child pornography.
§ 2252A(g)(2). Grovo’s reading of the statute would impose
the anomalous and atextual requirement that participants in a
child exploitation enterprise act simultaneously. That has
never been required to support a showing of conspiracy. On
the contrary, “[o]ne may join a conspiracy already formed
and in existence, and be bound by all that has gone on before
in the conspiracy, even if unknown to him.” United States v.
Knight, 416 F.2d 1181, 1184 (9th Cir. 1969); see also United
States v. Bibbero, 749 F.2d 581, 588 (9th Cir. 1984)
(upholding a conviction for conspiracy to import drugs where
the defendant and his coconspirators acted at different times
and in different locations).
Petersen’s argument that only the creators or staff of
KOFD can be liable for the entire child exploitation
enterprise is equally unpersuasive. In his view, § 2252A(g)
criminalizes the creation of the exploitation enterprise itself
– here, the KOFD message board – but does not reach the
members who merely participated in the exchange of child
pornography without creating or managing the website. But
this distinction appears nowhere in the statute. Section
2252A(g) merely requires that the defendant commit the
series of predicate offenses “in concert with three or more
14 UNITED STATES V. GROVO
other persons,” not three or more administrators or organizers
of the scheme. § 2252A(g) (emphasis added). In this respect,
the text of § 2252A(g) is broader than that of 21 U.S.C.
§ 848, considered in Rutledge, which specifically requires the
offenses be undertaken “in concert with five or more other
persons with respect to whom such person occupies a position
of organizer, a supervisory position, or any other position of
management.” We will not override Congress’ decision to
use the word “person” by reading the statute instead to
specifically require an organizer, supervisor or manager. See
also Wayerski, 624 F.3d at 1348 (affirming convictions under
§ 2252A(g) without requiring the participation of
administrators or staff).
2.
So long as Grovo and Petersen acted in an agreed-upon
common enterprise with at least three other KOFD members,
they are guilty of participating in a child exploitation
enterprise in violation of § 2252A(g). Taking the evidence in
the light most favorable to the prosecution, we conclude a
rational trier of fact could have found beyond a reasonable
doubt that this was the case. See Nevils, 598 F.3d at 1163–64.
Petersen urges, correctly, that a member’s mere presence
in the upper level of the KOFD forums cannot constitute
agreement to a common enterprise. See, e.g., United States
v. Melchor-Lopez, 627 F.2d 886, 891 (9th Cir. 1980)
(“[S]imple knowledge, approval of, or acquiescence in the
object or purpose of the conspiracy, without an intention and
agreement to accomplish a specific illegal objective, is not
sufficient to make one a conspirator.”). Although the
government must show some actual meeting of minds
between the coconspirators, it may do so “through
UNITED STATES V. GROVO 15
‘circumstantial evidence that defendants acted together in
pursuit of a common illegal goal.’” Lapier, 796 F.3d at 1095
(quoting United States v. Mincoff, 574 F.3d 1186, 1192 (9th
Cir. 2009)). “A formal agreement is not necessary; rather the
agreement may be inferred from the defendants’ acts pursuant
to the scheme, or other circumstantial evidence.” Id. (quoting
Bibbero, 749 F.2d at 587). Coordination between
conspirators, for example, “is strong circumstantial proof of
agreement,” United States v. Iriarte-Ortega, 113 F.3d 1022,
1024 (9th Cir. 1997), and “[o]nce the existence of a
conspiracy is established, evidence of only a slight
connection is necessary to support a conviction of knowing
participation in that conspiracy,” United States v. Sanchez-
Mata, 925 F.2d 1166, 1167 (9th Cir. 1991).
The government introduced ample proof at trial that
Grovo and Petersen both were more than merely present on
the KOFD boards, and did more than simply acquiesce in the
exchange of child pornography between its members. On the
contrary, they were active participants in the community, and
a reasonable factfinder could infer from their activities that
they agreed with other members to further the board’s
common goal of sharing, accessing and viewing child
pornography. Both defendants posted hundreds of times on
KOFD, gained admission to the upper level of the KOFD
board after being admitted and elevated through a vouching
process by the Administrators, Moderators and Legionaires,
repeatedly accessed and distributed child pornography in
accordance with the rules of various forums, repeatedly
thanked other members for posting child pornography, and
posted tips on how to ensure anonymity and security from
law enforcement.
16 UNITED STATES V. GROVO
Much of this evidence also supports the court’s finding
that Grovo’s and Petersen’s activities were in coordination
with three or more persons. Many of the KOFD threads
introduced at trial involved the individual defendants and
three or more other members either posting content or
responding appreciatively to others’ posts. These interactions
alone support a finding the defendants acted in concert with
three or more individuals. Moreover, as noted above, the
defendants had to be referred by an existing member to join
KOFD and underwent the board’s vetting process to become
Castle Residents, which had to be authorized by at least one
of KOFD’s three administrators and may have involved
discussions among the rest of KOFD’s seven-member staff.
In sum, we have no trouble concluding a reasonable
factfinder could determine Grovo and Petersen acted “in
concert with” at least three other individuals. The evidence
supports their convictions for participating in a child
exploitation enterprise in violation of § 2252A(g), and the
district court did not err in denying their Rule 29 motions.
B.
Grovo and Petersen next challenge the sufficiency of the
evidence for their convictions of conspiracy to advertise child
pornography in violation of § 2251(d). To convict, the
government needed to prove (1) an agreement between two
or more persons to commit the crime of advertising child
pornography; and (2) that Grovo and Petersen intended to
advertise child pornography. Cf. United States v. Moe,
781 F.3d 1120, 1124 (9th Cir. 2015) (describing the generic
elements of conspiracy). A defendant is guilty of advertising
child pornography under § 2251(d) if he “knowingly makes,
prints, or publishes, or causes to be made, printed, or
UNITED STATES V. GROVO 17
published, any . . . advertisement seeking or offering . . . to
receive, exchange, buy, produce, display, distribute, or
reproduce any visual depiction” of child pornography.4
Grovo and Petersen contend their posts were not
“advertisements” for child pornography, and, therefore, argue
the evidence at trial was insufficient to support their
convictions.
1.
The definition of “advertisement” under § 2251(d)
presents a question of first impression in this circuit. In the
defendants’ view, an advertisement for child pornography
must be published in the press or broadcast over the air, or
must otherwise be publicly and generally known. They argue
that, because their posts on KOFD were visible only to
members of that message board and not to the public as a
whole, they cannot be guilty of advertising child
pornography.
Again, in questions of statutory interpretation, “our
starting point is the plain language of the statute.” United
States v. Williams, 659 F.3d 1223, 1225 (9th Cir. 2011).
Webster’s offers the following definitions of “advertisement”:
1. “[t]he action of advertising: a calling
attention to or making known” – where
“advertising” is further defined as “the
4
The statute also forbids knowingly making, printing, or publishing
“any notice . . . seeking or offering” child pornography. § 2251(d).
Because the indictment charged Grovo and Petersen with conspiring only
to advertise child pornography, we need not determine what constitutes a
“notice” under the statute.
18 UNITED STATES V. GROVO
action of calling something . . . to the
attention of the public esp. by means
of printed or broadcas t paid
announcements”;
2. “a calling to public attention: publicity”;
3. “a public notice; esp: a paid notice or
announcement published in some public
print . . . or broadcast over radio or
television.”
Advertisement, Webster’s Third Int’l Dictionary 31 (ed.
Philip Babcock Grove 2002). The American Heritage
Dictionary similarly defines “advertisement” as a “[a] notice,
such as a poster or a paid announcement in the print,
broadcast, or electronic media, designed to attract public
attention or patronage.” Advertisement, Am. Heritage
Dictionary 25 (5th ed. 2011). Black’s Law Dictionary has a
narrower, commercial definition, describing an advertisement
as “[a] commercial solicitation; an item of published or
transmitted matter made with the intention of attracting
clients or customers.” Advertisement, Black’s Law
Dictionary (10th ed. 2014).
None of these definitions limits an advertisement to
publication in the press or broadcast over the air. At most,
they merely note that an advertisement “especially” includes
communications “such as” those published in the press or
broadcast. The means of publication or broadcast are not the
definitive features of an “advertisement,” so long as the
advertisement calls attention to its subject or makes a
particular thing known. We therefore hold that an
UNITED STATES V. GROVO 19
advertisement need not necessarily be published in the press
or broadcast over the air.
To be sure, four of the five definitions above involve
some form of “public notice” or calling “public attention” to
something. Although this supports the defendants’ argument
that an “advertisement” may require some public component,
it does not compel us to adopt their argument that an
“advertisement” must be targeted to the entire public as a
whole. Assuming without deciding that an “advertisement”
under § 2251(d) requires some public component, we hold
that advertising to a particular subset of the public is
sufficient to sustain a conviction under the statute.5
Grovo urges us to consider dictionary definitions
suggesting “public” may refer to matters which are “exposed
to general view” or “open.” Public, Webster’s Third Int’l
Dictionary 1836. His argument ignores other definitions,
however, which refer to matters relating to “community
interests as opposed to private affairs,” or matters “accessible
to or shared by all members of the community,” and which
clarify the public may be either “the people as a whole” or
may refer – with equal validity – to some “organized body of
people” or “a group of people distinguished by common
interests or characteristics.” Id.; see also Public, Am.
Heritage Dictionary 1424 (defining “public” to include “[a]
group of people sharing a common interest”). Under these
5
Both defendants argue they benefit from the rule of lenity, but that rule
applies “only when a criminal statute contains a ‘grievous ambiguity or
uncertainty,’ and ‘only if, after seizing everything from which aid can be
derived,’ the Court ‘can make no more than a guess as to what Congress
intended.’” Ocasio v. United States, 136 S. Ct. 1423, 1434 n.8 (2016)
(quoting Muscarello v. United States, 524 U.S. 125, 138–39 (1998)). That
is not the case here.
20 UNITED STATES V. GROVO
definitions, which accord with a commonsense understanding
of what it means to advertise publicly, something may be
public even though it is directed only to a subset of the
population as a whole. We would call an advertisement
placed in an alumni magazine, neighborhood circular or high
school yearbook an “advertisement,” for example,
notwithstanding that it is publicized to only a cohort of the
community that shares a particular affiliation or interest.
The Tenth Circuit reached a similar conclusion in United
States v. Franklin, 785 F.3d 1365 (10th Cir. 2015), where the
defendant subscribed to a website that allowed him to accept
a closed community of subscribers as his “tribe,” and with
whom he shared pornographic images of children. Id. at
1367. The court held the defendant’s communications to his
tribe satisfied the statute’s definition of an advertisement,
concluding that even if the word had a “public” component,
that component could be construed to encompass a “subset of
the public,” such as “an informal group of like-minded
individuals.” Id. at 1369. It rejected the defendant’s
assumption that in order to be public, an advertisement must
be “‘indiscriminately’ and ‘impersonally’ made available to
everyone,” observing “[t]he public consists of numerous
groups,” and “[t]hough the number of members” in a
particular group may be “limited,” communications to the
membership would remain public even if they were not made
known to the entire public at large. Id.
Franklin’s reasoning accords with the view of other
courts that communications to specific, closed communities
can constitute advertisement within the meaning of § 2251.
See Wayerski, 624 F.3d at 1348 (holding defendants liable
under § 2251(d) when they exchanged pornography within a
limited group of 45 individuals); United States v. Rowe,
UNITED STATES V. GROVO 21
414 F.3d 271, 276 (2d Cir. 2005) (holding that posting to a
chat room supported a conviction under § 2251(c)).
Here, the defendants’ posts were shared with a closed
community of 40 to 45 individuals on the KOFD message
boards. Their posts constitute advertisements under
§ 2251(d).6
2.
Having concluded that a post on KOFD can satisfy the
legal definition of an advertisement under § 2251(d), we turn
to the defendants’ individual motions challenging the
sufficiency of the evidence underlying their convictions. We
conclude the evidence is sufficient to sustain both defendants’
convictions.
As an initial matter, a reasonable factfinder could
determine KOFD involved a conspiracy dedicated to
advertising – and, indeed, exchanging and viewing – child
pornography. A former member of KOFD testified its
“theme” was “models under the age of 18,” which included
child pornography. Notwithstanding KOFD’s general rule
purporting to forbid members from posting child
pornography, members regularly posted and requested child
pornography with the acquiescence and participation of the
board administrators. Specific rooms on the board were
designated for particular types of child pornography, and the
6
Petersen’s argument that § 2251(d) and (e) apply only when a
defendant has produced the pornography in question is foreclosed by
United States v. Williams, 659 F.3d at 1225, which held there is “no
requirement that a defendant personally produce child pornography in
order for criminal liability to attach” under § 2251(d).
22 UNITED STATES V. GROVO
“Wishing Well” allowed members to request images
produced by specific studios or depicting specific underage
models. Furthermore, members were accepted to KOFD and
advanced to the upper levels based in part on their
demonstrated interest in child pornography.
The evidence against Grovo was sufficient to allow a
rational factfinder to conclude beyond a reasonable doubt that
he participated in KOFD with an intent to advertise child
pornography. His post in the Wishing Well requesting
pictures from the well-known child pornography studio
Magic-image.com was an “advertisement seeking . . . to
receive” child pornography from other members. § 2251(d).
The evidence against Petersen was also sufficient. He
argues his activities were “ambiguous” and observes there is
no evidence that he ever posted to the Wishing Well itself.
The first of these contentions is wrong; the second is
irrelevant. Among Petersen’s other posts, he started two
threads – one entitled “hot LS vid,” the other “LS at its best
:)” – both of which included video and image files. Although
the government was unable to download the attached files
from links posted to KOFD, it recovered files with identical
file names from Petersen’s computer that contained child
pornography consistent with the descriptions in other
members’ appreciative responses to Petersen’s posts. The
evidence identified “LS” as the name of one of the most
popular child pornography studios. A rational factfinder
could conclude beyond a reasonable doubt that these two
posts were advertisements “offering to . . . display” child
pornography to other KOFD members. § 2251(d)(1).
Petersen’s posts are not ambiguous merely because they did
not contain an explicit declaration he was “offering child
pornography.” On the contrary, no “particular magic words
UNITED STATES V. GROVO 23
or phrases need to be included” to make a communication an
advertisement. See Rowe, 414 F.3d at 277 (quoting United
States v. Pabon-Cruz, 255 F. Supp. 2d 200, 218 (S.D.N.Y.
2003)).
Because these two KOFD threads support Petersen’s
conviction, the absence of additional posts in the Wishing
Well itself is immaterial. The government presented ample
evidence at trial showing KOFD members, including the
defendants, advertised child pornography in other rooms
throughout the upper and lower boards.
C.
Finally, Grovo challenges the district court’s method of
calculating restitution. Although we find his arguments
unpersuasive, we believe the district court’s methodology for
determining restitutionary losses was flawed in light of our
subsequent decision in United States v. Galan, 804 F.3d 1287
(9th Cir. 2015). We therefore vacate the restitution order and
remand for recalculation.
Under § 2259, a district court must order defendants “to
pay the victim [of child pornography] . . . the full amount of
the victim’s losses as determined by the court.” In Paroline
v. United States, 134 S. Ct. 1710 (2014), the Supreme Court
established that restitution under § 2259 is proper “only to the
extent the defendant’s offense proximately caused a victim’s
losses,” id. at 1722, and identified several factors a district
court “might consider” in tailoring an award based on
proximate causation, id. at 1728. These factors “could
include” (1) the number of past criminal defendants who
contributed to the victim’s general losses, (2) a reasonable
prediction of future offenders likely to be convicted for
24 UNITED STATES V. GROVO
crimes contributing to the victim’s general losses, (3) a
reasonable estimate of the broader number of offenders
involved, (4) whether the defendant reproduced or distributed
images of the victim, (5) whether the defendant had any
connection to the initial production of images, and (6) how
many images of the victim the defendant possessed. See id.
Applying Paroline, the district court here determined one
victim’s general losses totaled $476,500,7 then divided that
total by the number of previous restitution orders entered in
other cases involving the same victim, concluded the
Paroline factors did not warrant further modifying the award
and added the victim’s legal expenses to reach a total
restitution amount of $29,859, for which the defendants were
jointly and severally liable.
Grovo first argues the district court erred in failing to
fashion restitution “in an amount that comports with [his]
relative role in the causal process.” Id. at 1727. But Paroline
did not abrogate the longstanding rule that a defendant
convicted of conspiracy is liable for restitution for “not only
those [harms] resulting from the defendant’s individual
actions, but also others caused by the conspiracy itself.”
United States v. Laney, 189 F.3d 954, 965 (9th Cir. 1999).
Indeed, Paroline expressly distinguished cases in which
wrongdoers act in concert with each other, see 134 S. Ct. at
1725, and derived its proximate causation rule from a
statutory provision requiring restitution for any “losses
suffered by the victim as a proximate result of the offense.”
Id. at 1720–21 (quoting § 2259(b)(3)(F)). When the
“offense” is conspiracy, Paroline requires restitution for any
7
The district court denied restitution to another victim, a determination
that is not at issue on appeal.
UNITED STATES V. GROVO 25
losses proximately caused by the conspiracy – not those
caused by the individual defendant.
Grovo also argues the district court’s determination of
relative causation was an abuse of discretion because
application of the Paroline factors should have reduced the
value of the victim’s losses. But Paroline adopted a flexible
approach to causation, see id. at 1723–24, which gives district
courts “wide discretion” in fashioning restitution orders, id.
at 1729. Here, the district court properly considered each
Paroline factor in determining the relative causal significance
of the defendants’ conspiratorial conduct. It first divided the
total amount of general losses by the number of previous
restitution orders (factor 1) and concluded “[t]here is no
information on which to reasonably predict future offenders”
(factors 2 and 3). It then noted the KOFD board had one
image of the victim (factor 6) that had been viewed 29 times
(factor 4), but the defendants had not been involved in
producing the image (factor 5). Concluding “these factors do
not show a need to impose a greater award of restitution than
those general losses attributable to the conspiracy,” the court
did not further modify the award based on the Paroline
factors.
Grovo suggests the district court should instead have
applied a “tiering” analysis that groups defendants together
based on the Paroline factors, as the district court did in
United States v. Gamble, 2015 WL 4162924 (E.D. Tenn. July
9, 2015). But Paroline expressly eschewed any “rigid
formula” and suggested its factors “should rather serve as
rough guideposts.” 134 S. Ct. at 1728; see id. (“[I]t is neither
necessary nor appropriate to prescribe a precise algorithm for
determining the proper restitution amount.”). The district
26 UNITED STATES V. GROVO
court plainly attempted to determine the conspiracy’s relative
causal role and duly considered each Paroline factor.
Notwithstanding the district court’s careful and thorough
examination of the Paroline factors, however, we must vacate
the restitution order and remand for recalculation of the
victim’s general losses under the rule articulated in United
States v. Galan.8 In Galan – which we decided after the
sentencing below – we held a district court must, “to the
extent possible,” disaggregate losses caused by “the original
abuser’s actions” and losses caused by “the ongoing
distribution and possession of images of that original abuse.”
Galan, 804 F.3d at 1290–91. The district court, however,
concluded below that “[t]he disaggregation of costs is not
necessarily a brightline . . . and the continued harm and abuse
arising out of the viewing of child pornography images may
be part of a continuing, concerted harm,” drawing that
proposition in part from the district court’s decision in Galan,
which we had not yet overruled. It then determined that the
“total amount of [the victim’s] general losses” was equal to
the total future treatment costs the victim expected to incur in
her lifetime. As in Galan, the district court reached this
determination by relying on a psychological report that
focused “primarily on the resulting harms and costs from her
initial abuse” and showed only that her ongoing costs were
“at least in part related to” – not caused by – “the continuing
traffic in her image.” The injuries caused by the initial abuse
8
Because the government raised Galan in a citation of supplemental
authorities submitted to the court under Federal Rule of Appellate
Procedure 28(j) and the parties addressed it at oral argument, the issue is
properly before us. Although the government argues we should review for
plain error, we do not do so where, as here, “the new issue arises while the
appeal is pending because of a change in the law.” United States v.
Flores-Payon, 942 F.2d 556, 558 (9th Cir. 1991).
UNITED STATES V. GROVO 27
may certainly have been aggravated by subsequent viewing,
but neither the district court nor the psychological report
concluded subsequent viewing caused all of the victim’s
losses.
Under Galan, that failure to disaggregate losses caused by
the initial abuse was an abuse of discretion, and we must
vacate and remand for recalculation of the victim’s general
losses. We emphasize, however, that the district court’s
method of apportioning that loss between the defendants here
was sound under Paroline. After the court properly
disaggregates the victim’s general losses, it is therefore
permitted to reapply that method in reaching the individual
restitution amount.
III. CONCLUSION
For the foregoing reasons, we affirm the defendants’
convictions under § 2252A(g) and § 2251(d). We vacate the
district court’s restitution order and remand 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.
AFFIRMED IN PART; VACATED AND
REMANDED IN PART.