11th Circuit Reconsiders and Then Reverses Decision in Child Porn Case

The U.S. Court of Appeals for the Eleventh Circuit recently vacated its prior opinion in United States v. Caniff and held that the defendant’s private, one-on-one text messages asking an individual he believed to be a minor to send him sexually explicit photos of herself cannot support a conviction for making a “notice” to receive child pornography in violation of 18 U.S.C. § 2251(d)(1). This is a significant ruling in that this offense carries a mandatory minimum sentence of 15 years in prison.

Case Background

As part of a sting operation in St. John’s County, Florida, an FBI agent posed as “Mandy,” a 13-year-old girl, on the social media app Whisper. On March 31, 2016, the defendant responded to one of Mandy’s posts which displayed a picture of herself with the words, “Spring Break! And I’m BORED!!!!!!” superimposed over the photo.

Their exchange eventually turned sexually explicit and graphic, to the point where the defendant sent her several pictures of his penis and asked for pictures of her genitalia and of her masturbating. The defendant then agreed to drive an hour and a half to see her at her home while she was alone. When the defendant arrived at the house, he was arrested by federal agents.

After his arrest, the defendant consented to agents searching his electronic devices for any images or videos depicting minors engaged in sexual acts. Agents found only adult pornography on his devices and in his emails. During his interview with the agents, the defendant contended that he assumed “Mandy” was an adult role-playing as a child, since it was his understanding that Whisper’s terms of service required users to be “at least 17 or 18” to download and use the application.

Reversal Following Motion for Reconsideration

After being convicted at trial, the defendant appealed his conviction for the offense of knowingly making “any notice or advertisement” seeking to receive child pornography. He argued that there was insufficient evidence to establish that his one-on-one text messages with “Mandy” asking for sexually explicit photos of herself constituted a “notice or advertisement” for purposes of the statute.

The Court initially held that while these text messages were not “advertisements,” they did constitute a “notice” under the statute. The Court rejected the defendant’s argument that a “notice” must be something that is sent to the general public or at least to a group of people, stating that in the Court’s review of multiple definitions for the word “notice,” there appeared to be no requirement that it have a public component. The Court noted that Black’s Law Dictionary defined “notice” merely as “a written or printed announcement.”

Following the Court’s decision to affirm the defendant’s conviction, the defendant filed a motion for reconsideration. After 14 months, the Court granted the motion and vacated its earlier ruling.

The Court now found that there are, in fact, definitions for the word “notice” which appear to require that it be something in the public view. It pointed out that Webster’s 2nd edition defines “notice” as “[a] written or printed sign . . . communicating information or warning” as in “to put a notice on a door.” Webster’s 3rd edition defines it as “a written or printed announcement or bulletin” like “insert[ing] a [notice] in the newspaper.”

The Court recognized that there are clearly contrasting definitions, from widely-recognized sources, with regards to whether a “notice” must have a public component. As such, the Court held that the rule of lenity requires that this ambiguity be resolved in the defendant’s favor. The Court noted that this ruling would not hinder the government’s ability to prosecute people who solicit child pornography through private text messages, it just must do so pursuant to other criminal statutes.

While the Court held that, for purposes of criminal prosecutions under 18 U.S.C. § 2251(d)(1), the word “notice” would be interpreted as requiring some public aspect, its ruling in the end is still quite narrow: that the defendant’s private, person-to-person text messages did not constitute a “notice” under the statute.

It remains to be seen whether the same rationale would hold true if the text messages were private but involved three or more people. Holdings in most jurisdictions interpret the statute to include KIK group chats which are technically private since they require invitation, but typically include 20-plus members. It is likely that the holding in this case will be limited to the one-on-one text messaging that the defendant engaged in here.