## Facts

- Larry G. Rowe used an Internet chat room associated with child-pornography trading, titled “preteen00.”
- A law enforcement officer in New York observed Rowe’s chat-room post stating, in part, “Offering: Pre boys/girl pics,” along with file-server access instructions (“Fserve Trigger”) and a “Ratio 1:1” trading requirement.
- Using the posted instructions, the officer connected from New York to a file server located on Rowe’s computer in Kentucky.
- When the officer attempted to download an image without offering a file in exchange, the system disconnected him, consistent with the stated ratio rule.
- Agents later executed a search warrant at Rowe’s Kentucky residence and seized a hard drive containing thousands of child-pornographic images.
- A jury in the Southern District of New York convicted Rowe of advertising to receive, exchange, or distribute child pornography under 18 U.S.C. § 2251(c) (later redesignated § 2251(d).

## Issues

1. Whether Rowe’s chat-room posting and file-server setup constituted a “notice or advertisement seeking or offering” child pornography under 18 U.S.C. § 2251(c).
2. Whether venue in the Southern District of New York was proper when Rowe was located in Kentucky but the notice was received and acted upon in New York.
3. Whether Rowe’s sentence required vacatur because the district court treated the Sentencing Guidelines as mandatory contrary to United States v. Booker.

## Decision

- The Second Circuit affirmed the conviction, holding the evidence sufficient to show Rowe published a prohibited “notice or advertisement” under § 2251(c).
- The court held venue was proper in the Southern District of New York because the offense was committed in more than one district and the notice was received there via interstate Internet transmission.
- The court vacated the sentence and remanded for resentencing because the district court sentenced Rowe under a mandatory Guidelines regime later invalidated by Booker.

## Legal Principles

- “Notice or advertisement” in § 2251(c) is not limited to traditional print advertising and can include Internet postings that, in context, offer or solicit child pornography, including communications using technical or coded language.
- Instructions facilitating access to a file server and conditions for trading (e.g., a required exchange ratio) may support a finding that the defendant offered or sought to receive, exchange, or distribute child pornography.
- Under 18 U.S.C. § 3237(a), an offense committed in more than one district may be prosecuted in any district where it began, continued, or was completed; for Internet solicitations, venue may lie where the illegal notice is received.
- A sentence imposed under a mandatory Sentencing Guidelines framework constitutes Booker error and may require vacatur and remand when the record does not show the error was harmless.

## Conclusion

The Second Circuit held that an Internet chat-room post offering “pre boys/girl pics” and providing file-server access and trading instructions constituted an unlawful notice or advertisement under § 2251, and that venue was proper where the notice was received and acted upon; it nonetheless vacated and remanded for resentencing under Booker’s advisory-Guidelines rule.


United States v. Rowe, 414 F.3d 271 (2d Cir. 2005)