United States v. Steven Grovo
826 F.3d 1207
9th Cir.2016Background
- Steven Grovo and Joshua Petersen were tried (bench trial) for: (1) engaging in a child exploitation enterprise, 18 U.S.C. § 2252A(g), and (2) conspiracy to advertise child pornography, 18 U.S.C. § 2251(d). Both were convicted and sentenced; restitution was ordered against all convicted defendants.
- Both defendants were active, vetted members ("Castle Residents") of KOFD, an invitation-only online message board (≈40–45 members) where users posted links/preview images to child pornography and advised one another on anonymity and locating material.
- Grovo posted hundreds of times, including requests in the site’s "Wishing Well" and tips on evading law enforcement; Petersen likewise posted hundreds of times and created threads linking to known child-pornography studios and search tools.
- The district court denied Rule 29 motions, concluding the evidence supported (a) acting "in concert with three or more other persons" under § 2252A(g) and (b) "advertisements" under § 2251(d) despite KOFD being a closed community.
- The court awarded restitution under § 2259 using Paroline factors; the Ninth Circuit affirmed convictions but vacated and remanded the restitution order to disaggregate losses as required by United States v. Galan.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2252A(g) requires a conspiracy/meeting of the minds with three or more others ("in concert with") | Gov't: § 2252A(g) requires proof that defendant committed a series of predicate felonies as part of a common enterprise with ≥3 others; evidence of coordinated participation on KOFD suffices | Defendants: postings were individual, asynchronous acts; membership alone or non-staff participation cannot satisfy "in concert with" requirement | Court: "in concert with" requires the mens rea of conspiracy (agreement/common enterprise). A showing the defendant agreed with ≥3 others to further the enterprise is sufficient; synchronous action not required; convictions affirmed |
| Whether posts to a closed, invitation-only forum can be an "advertisement" under § 2251(d) | Gov't: "advertisement" need not be public to the world; advertising to a subset of the public (closed group) suffices | Defendants: an "advertisement" must be public (e.g., press/broadcast) and thus posts visible only to KOFD members cannot be advertisements | Court: Dictionary and precedent permit advertising to a subset of the public; communications to a closed community can be "advertisements" under § 2251(d); convictions affirmed |
| Sufficiency of evidence that specific posts were advertisements/offers | Gov't: defendants’ threads (e.g., requests in Wishing Well; links labeled with known studio names) amounted to offers/requests to receive/exchange child pornography | Defendants: posts ambiguous; lack of explicit offer language; Petersen didn’t post in Wishing Well | Held: Context, thread titles, links, appreciative responses, and recovered files on Petersen’s computer permit a rational factfinder to infer intent to advertise; convictions affirmed |
| Proper method for § 2259 restitution after Paroline — disaggregation of original-abuse losses vs. ongoing-distribution losses | Gov't: district court’s Paroline application and division by prior restitution orders was reasonable | Grovo: district court should tailor restitution more precisely to his causal role; error in not disaggregating original-abuse losses from ongoing-distribution losses | Held: District court properly applied Paroline factors to apportion conspiracy-caused losses, but failed to disaggregate original-abuser losses from those caused by ongoing distribution as required by United States v. Galan; restitution vacated and remanded for recalculation |
Key Cases Cited
- Rutledge v. United States, 517 U.S. 292 (1996) ("in concert" construed to require agreement/common plan)
- United States v. Daniels, 653 F.3d 399 (6th Cir. 2011) ("in concert with" requires conspiracy mens rea)
- United States v. Wayerski, 624 F.3d 1342 (11th Cir. 2010) (closed-group exchanges can support § 2251(d) liability)
- United States v. Williams, 659 F.3d 1223 (9th Cir. 2011) (no requirement that defendant personally produce child pornography to be liable under § 2251)
- Paroline v. United States, 134 S. Ct. 1710 (2014) (restatement of proximate-cause framework for § 2259 restitution)
- United States v. Galan, 804 F.3d 1287 (9th Cir. 2015) (district court must disaggregate losses caused by the original abuser from losses caused by ongoing distribution/possession)