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United States v. Larry G. Rowe

Citations: 414 F.3d 271; 2005 U.S. App. LEXIS 13320; 2005 WL 1553954Docket: 04-1142-

Court: Court of Appeals for the Second Circuit; July 5, 2005; Federal Appellate Court

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Larry G. Rowe appeals his conviction for violating 18 U.S.C. § 2251(c) (now § 2251(d)) by advertising to receive, exchange, or distribute child pornography. The case originated from an investigation in April 2002, when a detective from the Rockland County Computer Crime Task Force entered a chat room known for child pornography trading. There, he found a posting by Rowe, under the screen name "Tunlvd," advertising access to pre-teen pornography. The detective connected to Rowe's computer but was disconnected when he attempted to obtain an image without complying with Rowe's rules, which required users to upload images in exchange. A subsequent search of Rowe’s home by Secret Service agents uncovered thousands of child pornographic images on his computer hard drive. Rowe was found guilty by a jury, and while his conviction was upheld, the court vacated his sentence and remanded for further proceedings.

Rules for image exchanges included restrictions on uploads and requirements for participation. Detective Koenig found a list of explicit child pornography files on Rowe's computer, which included alarming titles. When attempting to download an image without uploading one, Koenig was disconnected. Following this, in June 2002, Secret Service agents executed a search warrant at Rowe's residence, seizing a hard drive containing around 12,000 child pornographic images and videos. During the search, Rowe acknowledged his online identity as "Tunlvd," admitted to understanding the illegality of his actions, and confessed to downloading and uploading approximately 6,000 child pornographic images.

Subsequently, on June 20, 2002, the government filed a criminal complaint against Rowe for violating 18 U.S.C. § 2251(c), which led to a grand jury indictment in February 2003. Rowe sought a change of venue from the Southern District of New York to the Eastern District of Kentucky, arguing that allowing prosecution in any district where his online postings were accessible would grant the government excessive discretion. The district judge clarified that venue is determined by where the crime occurred, stating that in cases involving the internet, venue is appropriate in any district where the crime was initiated, continued, or completed. After analyzing the case under the "substantial contacts" test, the judge rejected Rowe's arguments and upheld the venue in the Southern District, denying the motion for transfer.

Rowe's trial commenced in November 2003. After the prosecution rested, Rowe moved for a judgment of acquittal, claiming that the indictment's reference to the "preteen00" chat-room posting did not directly solicit child pornography. The district judge denied this motion, emphasizing that the government's evidence must be considered as a whole.

The posting in question was deemed sufficient by the court to indicate an intention to offer or receive illicit materials involving prepubescent individuals, as determined by the district judge. This judge found the evidence adequate to uphold the indictment and rejected a defense motion for acquittal based on the claim that the posting did not cross state lines. Rowe, the defendant, testified that his involvement in the "preteen00" chat room was not meant to advertise child pornography but was intended as a means for someone named "BabyK" to access his computer. He described his infatuation with "BabyK," who had allegedly shared traumatic experiences and images with him. Rowe claimed that the child pornographic images on his computer were uploaded by "BabyK," to whom he had granted full access. Despite his claims, the jury found him guilty. At sentencing, both the judge and Rowe's attorney acknowledged the mandatory minimum sentence of 10 years, which the judge criticized for its lack of proportionality. Rowe was sentenced to 10 years in prison, followed by three years of supervised release, with conditions for sex-offender treatment and restrictions on contact with minors. Rowe subsequently appealed, arguing that his posting did not qualify as a "notice or advertisement" under § 2251(c), that venue was improper, and that his sentence violated the Eighth Amendment. The appeal court characterized Rowe's argument primarily as a legal question regarding statutory interpretation, warranting a de novo review of the district judge's decision.

Rowe posted an advertisement in the "preteen00" chat room offering pictures of "preboys/girl," which the government claims was a platform for exchanging child pornography. Rowe does not dispute the chat room's nature but argues that the context does not render his posting a prohibited advertisement under 18 U.S.C. § 2251(c). He asserts that his posting lacks explicit reference to pornography. However, the government contends that the terms used in the chat room, combined with Rowe's advertisement, clearly indicate an offer related to child pornography. The court emphasizes that § 2251(c) does not require specific language to constitute an advertisement for illegal material; any indication of offering or seeking images of minors in sexually explicit conduct is sufficient. The court agrees with the government that Rowe knowingly offered child pornography, affirming the district judge's ruling that his posting qualifies as a "notice or advertisement" under the statute.

Additionally, Rowe challenges the venue, arguing that it should have been in the Eastern District of Kentucky. The government asserts that the venue in the Southern District of New York was proper. This venue issue is novel in this Circuit, with no prior federal rulings on the matter.

Venue in federal criminal cases is governed by constitutional provisions, statutes, and rules. The Constitution outlines venue in Article III and the Sixth Amendment, emphasizing that trials should occur in the state where the crime was committed to protect defendants from bias and logistical hardships associated with distant trials. Specifically, Article III mandates that crimes be tried in their jurisdiction, while the Sixth Amendment ensures the right to a public trial by an impartial jury from that district.

In addition to these constitutional safeguards, various statutes dictate venue for specific offenses, reinforced by Federal Rule of Criminal Procedure 18, which stipulates prosecution in the district where the offense occurred unless otherwise allowed. The determination of venue is not governed by a strict rule but rather a "substantial contacts rule," which considers factors such as the location of the defendant’s actions, the nature of the crime, and the appropriateness of the venue for fact-finding.

The Supreme Court, in United States v. Rodriguez-Moreno, highlighted the need for district courts to identify the conduct constituting the offense and its location. For instance, under 18 U.S.C. § 2251(c), it is a crime to knowingly publish advertisements for child pornography, with an emphasis on the knowledge that such materials would be transported across state lines. The case confirms that Rowe’s posting in a specific online chat room constitutes an offer to exchange child pornography, which was transported in interstate commerce via the internet.

To determine the appropriate venue for the prosecution of criminal acts, it is essential to identify where these acts were committed. According to *Rodriguez-Moreno*, if a crime consists of distinct elements occurring in different locations, it can be tried in any jurisdiction where any part of the crime is proven. The government asserts, and Rowe does not contest, that the offense under § 2251(c) is a continuing offense, as defined by 18 U.S.C. § 3237(a). This statute allows for prosecution in any district where the offense was initiated, continued, or completed. The Supreme Court in *Johnson* affirmed that venue is appropriate in any district affected by the offender's actions.

Various cases have upheld venue based on the location of any part of the crime, including instances where actions occurred outside the prosecuting district. For example, in *Rodriguez-Moreno*, venue was deemed proper in the district where a kidnapping occurred, regardless of where a firearm was used. Similarly, in *United States v. Chen*, the venue was upheld where a loan was initiated, and in *United States v. Sutton*, where fake licenses were mailed.

Notably, the application of § 3237(a) has extended to internet crimes, as demonstrated in *United States v. Thomas*, where defendants were prosecuted in a district different from where they operated their illegal activities. Although Rowe's actions did not directly involve transactions with a New Yorker, his conduct is considered a continuing offense in New York. The district judge reasoned that Rowe must have recognized that his advertisement could reach a global audience, including New York, where the chat room could be accessed. Consequently, both statutes and case law permit the prosecution of crimes like Rowe's in any jurisdiction where any part of the crime occurred.

Section 3237(a) is interpreted broadly, allowing Rowe's internet advertisement for child pornography to qualify as an "offense involving transportation in interstate commerce." The district judge appropriately determined that venue in the Southern District of New York was proper based on the "substantial contacts" test, noting that there was no evidence of bias against Rowe in New York compared to Kentucky, nor any undue burden on him for the trial location. 

Rowe's argument that his 10-year prison sentence violates the Eighth Amendment is rendered moot by the precedent set in United States v. Pabon-Cruz, which clarified that a violation of § 2251(c) does not necessitate a mandatory minimum sentence. The statute's language was deemed confusing, suggesting discretion in sentencing rather than a strict 10-year minimum. Consequently, the court vacates Rowe's sentence and remands for resentencing, emphasizing that the district judge will have discretion to impose a fine or a term of imprisonment not less than 10 years, consistent with applicable Sentencing Guidelines. The record indicates that neither Rowe nor the district judge understood the lack of a mandatory minimum, which necessitated the recalibration of the sentencing process.

The district court is required to resentence Rowe following the Supreme Court's ruling in United States v. Booker, which necessitates the excision of subsection 3553(b)(2) of U.S.C. Title 18. This mandates a shift to advisory Sentencing Guidelines, where the sentencing judge must consider the factors outlined in 18 U.S.C. § 3553(a), including the applicable Guidelines range and the authority for potential departures. The judge can impose either a Guidelines or a non-Guidelines sentence. The court affirms Rowe's conviction under 18 U.S.C. § 2251(c) for posting an advertisement related to sexually explicit conduct involving a minor and upholds the venue's propriety. However, Rowe's sentence is vacated for resentencing, allowing him to raise his objections regarding the sentence range calculation again during the remand process. The excerpt also clarifies that the language in 18 U.S.C. § 2251(c) has been amended and relocated, detailing the parameters of the offense and the corresponding penalties. Additionally, it notes the involvement of a couple, Lauren and James Dougherty, in operating the "Katie's-World" website, with Ms. Dougherty testifying not to know Rowe.