In United States v. Brown, --- F.3d ---,No. 15-30148 (9th Cir. 2017), a divided panel reversed the client’s conviction
for conspiracy to advertise child pornography under 18 U.S.C. §§ 2251(d) and
(e).
The defendant
sought to argue in closing that the government failed to
prove the “notice” or “advertisement” element, because the images were posted
on a private, pass-word protected internet bulletin board (Dark Moon).
The district court
precluded the argument, essentially finding that a posting on the closed
bulletin board was sufficient to constitute an advertisement as a matter of
law.
The Ninth Circuit reversed. It distinguished prior cases that held a
posting was legally sufficient to meet the government’s burden, explaining: “There
is wide gulf between saying that evidence is sufficient to convict, and saying
that such evidence is always sufficient
as a matter of law to convict.”
Thus, "[b]y refusing to allow Brown to present his defense in
closing argument based on the closed nature of the Dark
Moon bulletin board, the district court violated [Brown’s]
fundamental right to assistance of counsel and right to present
a defense, and it relieved the prosecution of its burden to
prove its case beyond a reasonable doubt. [A] deficient closing argument [lessens] the
Government’s burden of persuading the jury[,] [and]
cause[s] the breakdown of our adversarial system. Since preventing a defendant from arguing a
legitimate defense theory constitutes structural error, we must reverse Brown’s conviction accordingly."
