United States v. Daniel Brown
2017 U.S. App. LEXIS 10359
| 9th Cir. | 2017Background
- Daniel Brown, a member of a password‑protected, invite/credential gated bulletin board called Dark Moon, was convicted by a jury of conspiracy to make/print/publish a “notice or advertisement seeking or offering” child pornography under 18 U.S.C. § 2251(d)(1) and sentenced to 15 years.
- The Dark Moon forum was closed (username/password required), required encrypted uploads, barred public dissemination of its URL, and had a limited number of participants.
- At the jury‑instruction conference, the court adopted a plain‑meaning instruction for the terms “notice,” “advertisement,” and “advertise.”
- Defense counsel sought to argue in closing that, given Dark Moon’s closed/password‑protected/encrypted features and small membership, the government had not proved the “notice/advertisement” element beyond a reasonable doubt.
- The district court ruled as a matter of law that a closed board can constitute a “notice” or “advertisement” and precluded the defense from making that closing‑argument theory; the Ninth Circuit reversed, holding that excluding that defense theory violated Brown’s Sixth Amendment right to present a defense and was structural error.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Brown) | Held |
|---|---|---|---|
| Whether postings to a closed, password‑protected bulletin board can be considered a “notice” or “advertisement” under 18 U.S.C. § 2251(d)(1) | Closed/protected boards suffice; prior cases support treating such postings as advertisements | The closed nature (password protection, encryption, small membership) is a factual circumstance that can negate that element and the jury should consider it | The trial court erred by precluding Brown from arguing that the board’s features meant the government failed to prove the element; reversal and remand for retrial |
| Whether the trial court may bar a defendant from making a closing argument that an element was not proved because the court views the law/facts as established | Court may prevent arguments that state incorrect law | Defendant has a constitutional right to present a defense and make closing arguments on reasonable factual distinctions | The exclusion improperly usurped the jury’s fact‑finding role and violated Brown’s right to present a defense |
| Whether Grovo forecloses arguing closed‑board facts to a jury | Grovo indicates posting on a closed board can be an advertisement under § 2251(d) | Grovo addressed sufficiency on its facts and did not establish that closed board features are irrelevant as a matter of law | Grovo is not dispositive of whether a defendant may present distinguishing factual arguments to the jury; such arguments may proceed |
| Remedy for excluding a legitimate defense theory in closing | N/A (government defended trial court) | Exclusion of a legitimate defense theory is structural error requiring reversal | Exclusion was structural error; conviction reversed and remanded for retrial |
Key Cases Cited
- Herring v. New York, 422 U.S. 853 (1975) (defense closing argument is a basic element of adversary factfinding)
- Conde v. Henry, 198 F.3d 734 (9th Cir. 1999) (denial of right to make final arguments denies assistance of counsel)
- United States v. Grovo, 826 F.3d 1207 (9th Cir. 2016) (postings to a closed bulletin board can satisfy § 2251(d) as advertising; sufficiency review)
- United States v. Franklin, 785 F.3d 1365 (10th Cir. 2015) (closed‑network postings can be advertisements for § 2251(d) sufficiency review)
- United States v. Doe, 705 F.3d 1134 (9th Cir. 2013) (trial court may prevent argument that states incorrect law)
- United States v. Miguel, 338 F.3d 995 (9th Cir. 2003) (preventing a defendant from arguing a legitimate defense theory constitutes structural error)