United States v. Matthew Bryan Caniff
Concurring in Part
If forced to choose a favorite movie, I'd have to go with A Man for All Seasons , which chronicles Sir Thomas More's heroic, principled-to-the-death stand against King Henry VIII's effort to procure a divorce from Catherine of Aragon-and in the process anoint himself the head of his own newly-formed church. (Christopher Nolan's Inception runs a close second, for sheer mind-blowing awesomeness, but I digress ....) My favorite scene from my favorite movie: a testy dialogue between More and his son-in-law-to-be, the ever-zealous Richard Roper. Roper, anxious that the opportunistic hanger-on Richard Rich intends to double-cross More, who was then serving as the Lord Chancellor of England, pleads (along with More's wife and daughter) to have Rich arrested on the ground that he's "bad"-to which More responds, impassively, "There's no law against that." To the objection that while they go on "talk[ing]," Rich has "gone," More rejoins, more emphatically: "And go he should even if he were the Devil himself until he broke the law ." Then, this gem-
Roper: So, now you'd give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: Yes, I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you-where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast-man's laws, not God's-and if you cut them down-and you're just the man to do it-do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.1
* * *
I knew this day would come-eventually, I'd have to hold my nose and cast (and then explain) a vote that I found utterly nauseating. Well, here we are. I couldn't *941agree more with the majority-and the staffer-drafters of H.R. Rep. No. 99-910, whoever they were-that "[o]f all the crimes known to our society, perhaps none is more revolting than the sexual exploitation of children, particularly for the purposes of child pornography." Maj. Op. at 936. And happily for me, Congress has given prosecutors plenty of ammunition to try, convict, and sentence the purveyors and consumers of child porn. But, I respectfully submit, the majority's construction of
To be clear, I'm not suggesting that Caniff is the "Devil himself" (although the crimes of which he has been convicted are most assuredly devilish). Nor am I in any way intimating that the majority's construction of § 2251(d)(1) is tantamount to "cut[ting] down every law in [America]"-the majority's interpretation is plausible, even if (I think) incorrect. And I am most certainly not casting myself in the role of the inimitable More. I'm simply saying that as badly as I'd like to get Caniff-to see him rung up on every count of the indictment-my job is to take the law as I find it, and however regrettable it may be to me, I cannot conclude that § 2251(d)(1) reaches Caniff's conduct here.
I
In relevant part,
knowingly makes , prints , or publishes , or causes to be made, printed, or published, any notice or advertisement seeking or offering ... to receive ... any visual depiction, if the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct.
The majority doesn't contend that when Caniff sent a private text message to "Mandy" requesting photos, he "print[ed]" or "publishe[d]" anything-either a "notice" or an "advertisement." Nor does the majority contend that Caniff "ma[de]" an "advertisement" for pornographic images. Rather, the majority holds that by sending his text message Caniff "ma[de]" a "notice" for porn. Maj. Op. at 932. That seems wrong to me for two reasons.
A
First, and most obviously, that's just not how people talk. One would be hard-pressed to find any ordinary English *942speaker who would think that he "makes" a "notice" by conveying a request via text message. If I send a text to my son asking him to pick up some milk on the way home from school, have I "ma[de]" a "notice" for milk? And in turn, when he receives my message, would he plausibly turn to his friends and say, "I've got to run by the store-my dad has made a notice that we need milk"? I don't think so. Caniff's request wasn't nearly so innocuous, of course, but he no more "ma[de]" a "notice" than I did. The majority's expansive construction seems to me to privilege how statutory terms might conceivably be used as opposed to-as I think preferable-how they are used "in their ordinary and usual sense." Caminetti v. United States,
B
Second-and this will require a bit more unpacking-there is the matter of statutory context. The majority focuses intently on the word "notice," and it insists that there are instances in everyday parlance in which that term is used to refer to a message "given from one individual or entity to another"-such as, for example, when a utility company issues a "notice" to a customer that her power is about to be cut or an employee gives his boss "notice" that he won't be at work. Maj. Op. at 932-34. Thus, the majority concludes, a "notice" needn't necessarily be "sent to the general public or at least a group of people." Maj. Op. at 933. Fair enough-a "notice" can be sent from one individual to another; some uses of the word entail public dissemination, others don't.
Here, therefore, the fact that the term "notice" can be understood to describe one-to-one communications does not mean that it is best understood that way in § 2251(d)(1). Context is critical-here, as elsewhere, it "disambiguates." Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 70 (Thompson/West 2012). Accordingly, we must consider the term "notice" not in splendid isolation, but rather-on the principle that a "word is given more precise content by the neighboring words with which it is associated," United States v. Williams ,
1
Let's start with the verbs. Under § 2251(d)(1), it's not enough that a "notice" exist-it must have been "ma[de], print[ed], or publishe[d]." As already noted, the majority doesn't suggest that, when one sends a text message he "prints" or "publishes" anything. Rather, the majority focuses on the term "make[ ]," which it presumably concludes needn't necessarily entail any public dissemination. Maj. Op. at 932. And standing alone (again, as with "notice," in the abstract), the word "make[ ]" can be understood that way-as in, to "make" an offer or request. See Oxford Dictionary of English 1069 (3d ed. 2010) (defining "make" to include to "communicate or express (an idea, request, or requirement)," as in "make him an offer he can't refuse"). In concluding that Caniff "made 'notices' that he desired to receive child pornography," Maj. Op. at 937, the majority essentially reads "make[ ]" a "notice" to mean "make[ ] a request."
But the context in which "make[ ]" is used in § 2251(d)(1) undercuts the majority's interpretation, because the word "make[ ]" has to be understood in the light of its statutory companions, "print[ ]" and "publish[ ]." Let's start with "publish." That the term contemplates a public communication is evident from its Latin root-"publicare." Webster's Second New International Dictionary 2005 (1944). True to those roots, Webster's Second defines "publish" to mean "[t]o make public announcement of" or "to make known to people in general"-or, alternatively, "[t]o bring before the public, as for sale or distribution." Id . Webster's Third similarly defines the term to mean "to declare publicly" or to "make generally known"-or, alternatively, "to call to the attention of the public: advertise," "to place before the public (as through a mass medium)," or to "disseminate." Webster's Third New International Dictionary 1387 (2002). See also Oxford English Dictionary (3d ed. 2011), http://www.oed.com (Feb. 12, 2019) ("[t]o make public or generally known; to declare or report openly or publicly; to announce; (also) to propagate or disseminate"-or, alternatively, "to prepare and issue copies of (a book, newspaper, piece of music, etc.) for distribution or sale to the public").
"Print" is similar. The most pertinent definition in Webster's Second defines "print" to mean "[t]o publish a book, article, music, or the like," Webster's Second at 1967, and the successor in Webster's Third treats the term as a subset of publishing generally, defining it to include "to publish in print"-as in "all the news that's fit to print," Webster's Third at 1803. The OED likewise (as relevant here) defines "print" as meaning "[t]o cause (a manuscript, book, etc.) to be printed," "to give to the press," or "to publish." Oxford English .
What, then, of "make[ ]"? The definitions of "print" and "publish" indicate, to my mind, that the word "make[ ]," as used in § 2251(d)(1), is not meant in the make-a-request sense. When one says that something has been "print[ed]" or "publishe[d]," it's quite unlikely that she has in mind an audience of one. Rather, both "print[ ]" and "publish[ ]" overwhelmingly involve the announcement of a message to the public. At least as it pertains to "notice or advertisement"-more on that phrase in a moment-"make[ ]" fits comfortably within that ambit. The public-ness of the terms "print[ ]" and "publish[ ]" indicates that when one "makes" a "notice or advertisement," he is likewise doing so for broad dissemination-or at least dissemination *944beyond a single individual. One could "make[ ]" a "notice or advertisement" in a TV commercial or on a blog. But at least in the context of § 2251(d)(1), one does not "make[ ]" a "notice" in a private, person-to-person text message.
2
But there's more-a second bit of context that informs the analysis here. "[N]otice" is part of a linguistic package-"notice or advertisement." What can we learn about the meaning of "notice"-again, as used in § 2251(d)(1) -from its statutory running buddy, "advertisement"?
On balance, I think that the placement of the term "notice" alongside the term "advertisement" indicates that, at least as used in § 2251(d)(1), the former, like the latter, ordinarily contemplates a public communication. The dictionaries are chock full of definitions of "notice" that closely resemble those of "advertisement." One usage of "notice," for instance, according to Webster's Second , is "[a] written or printed sign ... communicating information or warning"-as in "to put a notice on a door." Webster's Second at 1669. So too in Webster's Third : "a written or printed announcement or bulletin''-like "insert[ing] a notice in the newspaper." Webster's Third at 1544. And the OED : "a displayed sign or placard giving news or information" (such as, for example, "notices on the bulletin board at your grocery store, describing your product and giving a price") or "[a] short announcement or advertisement in a newspaper, magazine, etc." Oxford English . And Black's , as well:
*945"[a] written or printed announcement"-as in "the notice of sale was posted on the courthouse bulletin boards." Black's Law Dictionary at 1227. Cf. also Gustafson v. Alloyd Co. ,
A common theme unites these definitions of the statutorily connected terms "notice" and "advertisement": a communication that is usually commercial in nature and usually conveyed via public medium-sign, poster, placard, bulletin board, newspaper, radio, television, etc. Where do text messages fit? I don't think they do. To the chagrin of many-and perhaps especially many parents of teenagers [said the parent of teenagers]-text messages have largely replaced face-to-face communications and telephone conversations. They are not, though, the modern-day analogues of the public-facing media so pervasively referenced in the definitions of "notice" and "advertisement." (It is worth noting in this connection-even if only briefly-that under the majority's broad interpretation, a person also "make[s]" a "notice" within the meaning of § 2251(d)(1) when she places a telephone call. That seems strange to me, but it follows inexorably from the majority's logic.)
To be clear, saying that, as used in § 2251(d)(1), a "notice" entails some public dissemination does not require that it be blasted to the public at large. Other circuits have held, for instance-I think correctly-that § 2251(d)(1) makes it a crime to post offers to buy and sell child pornography in computer "chat rooms." See, e.g. , United States v. Grovo ,
In any event, I conclude that, on balance, the juxtaposition of the words "notice" and "advertisement"-particularly following, as they do, the verbs "make[ ]," "print[ ]," and "publish[ ]"-favors an understanding of "notice" that entails dissemination to more than a single individual.
* * *
*946The unfortunate bottom line for me is this: No ordinary speaker of American English would describe a private, person-to-person text message-whether requesting milk from the grocery or, far more disgustingly, pornographic images from a teenager-as the "mak[ing]" of a "notice." And the context in which those terms are used in § 2251(d)(1) -surrounded as they are by words like "print[ ]," "publish[ ]," and "advertisement"-confirms that the proscription on "mak[ing]" a "notice" doesn't reach Caniff's conduct.
II
At bottom, the majority's interpretation of § 2251(d)(1) isn't textual-it's purposive. See, e.g. , Maj. Op. at 936 (relying on out-of-circuit district court opinions asserting Congress's "clear statutory purpose" and "primary intent") (quoting United States v. Peterson , No. CR 12-228-GW,
The majority is chiefly concerned that interpreting § 2251(d)(1) in accordance with (what I think to be) its ordinary meaning would create a "loophole" in the child-pornography laws that "would leave the most vulnerable of the victims of pedophilia unprotected against the most effective and hardest to detect predatory conduct." Maj. Op. at 936. Fortunately, that's not true. Regardless of what we say today about § 2251(d)(1) 's reach, Title 18 includes an entire chapter dedicated to punishing the "Sexual Exploitation and Other Abuses of Children." The provisions included in that chapter pretty well cover the waterfront, and they give the government ample ammunition to get at the peddlers and consumers of child porn-including those, like Caniff, who solicit their smut through private text messages.
Perhaps most clearly,
Then there's
In short, Caniff's conduct is covered; Congress's intent has been well served. We needn't, and shouldn't-either in the name of statutory "purpose" or otherwise-graft onto § 2251(d)(1) a strained, acontextual interpretation.
III
There's a big piece of me that thinks that because Caniff (even more so than Master Rich) is "bad," he should have the book-for that matter, the whole library-thrown at him. The law, though, is a pesky *948thing. Caniff, while guilty of many crimes-some charged, some not-is not guilty of "mak[ing], print[ing], or publish[ing]" an "advertisement or notice" for child pornography within the meaning of
A Man for All Seasons (Columbia Pictures 1966). For this clip in particular, see A Man for All Seasons-The Devil and The Law , YouTube (Sept. 30, 2011), https://www.youtube.com/watch?v=d9rjGTOA2NA.
Before jumping into the merits, I should briefly clear away a bit of procedural underbrush. As the majority notes, Caniff didn't request a jury instruction specifically defining "notice," Maj. Op. at 932-33, and he hasn't argued on appeal "that the district court made any legal error in submitting this term to the jury for its determination."
Compare, e.g. , Black's Law Dictionary 1227 (10th ed. 2014) (a "[l]egal notification required by law or agreement," such as a tenant giving a landlord "written notice" before vacating an apartment), with , e.g. , Webster's Third New International Dictionary 1544 (2002) ("a written or printed announcement or bulletin"-as in "inserted a notice in the newspaper").
With respect to the phrase "notice or advertisement," the majority objects that the noscitur a sociis canon-the principle that a word is known by the company it keeps-"is not particularly helpful here to define one of two statutory terms." Maj. Op. at 935 n.4. The canons, though, aren't hard and fast rules, so we shouldn't set an artificial floor on the number of words required for an apt comparison. See MBIA Ins. Corp. v. F.D.I.C. ,
I'm mindful, of course, "that identical language may convey varying content when used in different statutes." Yates v. United States , --- U.S. ----,
There are two loose ends concerning the phrase "notice or advertisement." First, the majority takes great pains to emphasize that the phrase is preceded by the word "any." Maj. Op. at 934-35. It's true, of course, that "any" is a capacious term-we've said so repeatedly. But it's equally true that the net cast by the term "any" is necessarily limited by a proper understanding of the nouns that it modifies. Introduction of that one word provides no basis for grafting onto the phrase "notice or advertisement" a construction that neither ordinary meaning nor statutory context sensibly supports. Moreover, if the word "any" bore the weight that the majority assigns to it-such that it ropes in every communication, public and private alike-one is left to wonder why Congress would have drafted so elliptically. Why not just use the more economical "any communication"?
Second, and separately, given the usual rule that we are "obliged to give effect, if possible, to every word Congress used," Reiter v. Sonotone Corp. ,
Although by no means necessary to my conclusion, I'm tempted to pile on by invoking the rule of lenity-which states, in essence, that if at the end of the interpretive road, having applied the applicable semantic and contextual canons of interpretation, there exists any meaningful doubt about the application of a criminal statute to a defendant's conduct, then the doubt should be resolved in the defendant's favor. See Scalia & Garner, supra , at 296-302. Caniff, though, hasn't invoked the rule in support of his contention that § 2251(d)(1) doesn't reach his conduct, and this Court seems to have held-oddly to my mind-that a criminal defendant can waive a lenity-based argument by failing to affirmatively assert it. See United States v. Thompson ,
Opinion of the Court
In this direct criminal appeal, Defendant Matthew Caniff challenges his convictions for three federal child sex offenses. Having jurisdiction under
I. BACKGROUND
The evidence at trial, viewed in the light most favorable to the jury's verdict, see United States v. Dixon,
On the afternoon of March 31, 2016, Agent Beccaccio posted on Whisper a photo of another FBI employee taken when that employee was in her early twenties. The FBI had "age regress[ed]" that photo to make the person in it look "more childlike and youthful." (Doc. 79 at 37-38.) The photo showed "Mandy" dressed in a heavy sweatshirt or coat worn over another shirt; Mandy was not dressed or posed in any sexually suggestive manner. Agent Beccaccio posted this picture with the words: "Spring Break! And I'm BORED!!!!!!" superimposed over the photo. (Gov't ex. 1.)
Caniff, a thirty-two-year-old pharmacy technician, responded, stating "Let's do something then," followed by a "winky smiling face" (Doc. 79 at 41, Gov't ex. 2 at 1). Mandy asked if Caniff was on spring *931break too; he responded that he was "[t]otally off today." (Doc. 79 at 42-43; Gov't ex. 2 at 2.) Caniff wanted to "do something water related." (Gov't ex. 2 at 3.) Mandy asked Caniff if he was old enough to drive; Caniff said he was; Mandy responded: "Sweet!! I'm not old enough too [sic]." (Id. at 4.) Caniff then asked Mandy if she had a bikini and was it cute. (Id. at 5.) Caniff soon agreed with Mandy to leave Whisper and instead text message each other.
Caniff and Mandy exchanged text messages the rest of that afternoon and evening. Although Mandy told Caniff several times at the outset of their text messaging that she was thirteen years old, Caniff's text messages to Mandy turned sexual and eventually became quite explicit and graphic. Caniff also sent Mandy several pictures of his penis and asked her to send him pictures of her genitalia and of her masturbating. When Mandy asked if she could get in trouble, Caniff responded that "[t]he only one of us the [sic] could get in trouble would be me." (Gov't ex. 3 at 3.) Eventually, Mandy agreed to have sex with Caniff.
Before driving an hour and a half to meet Mandy, who said she was home alone, Caniff asked Mandy if she was a cop. She responded, "[l]ike 13 year old [sic] are cops!" (Id. at 14.) Caniff said Mandy "could be pretending to be 13." (Id. ) Mandy said she was not. Mandy asked Caniff what he was bringing her; he said he had Xanax to share with her. Fate almost intervened for Caniff when his car broke down on his drive to Mandy. But he was able to get his car working again and arrived at Mandy's home at approximately 1:30 a.m. where he was arrested.
After his arrest, Caniff consented to agents searching his computer, cell phone and other electronic devices, as well as his vehicle. Agents found only adult pornography on Caniff's phone, and no child pornography anywhere. Caniff also gave agents information that would enable them to access his social media accounts; officers found nothing incriminating there, either. There was Xanax in Caniff's wallet, which Caniff said he found in the trash at the pharmacy where he worked.
After giving Caniff Miranda
The United States charged Caniff with three offenses: 1) attempting to entice a minor to engage in illegal sexual conduct, in violation of
II. DISCUSSION
A. Caniff's text messages requesting that Mandy send him sexually explicit photos can support an
Caniff challenges his Count 2 conviction for violating
(d)(1) Any person who, in a circumstance described in paragraph (2), knowingly makes, prints, or publishes, or causes to be made, printed, or published, any notice or advertisement seeking or offering-
(A)to receive, exchange, buy, produce, display, distribute, or reproduce, any visual depiction, if the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct;
....
shall be punished as provided under subsection (e).
(2) The circumstance referred to in paragraph (1) is that--
....
(B) such notice or advertisement is transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means including by computer or mailed.
(Emphasis added.)
The trial court, without objection, used the statutory language to instruct jurors that the Government had to prove beyond a reasonable doubt, among other elements, "that the defendant knowingly made, printed, or published or caused to be made, printed, or published any notice or advertisement," and "that such notice or advertisement sought or offered to receive ... any visual depiction ... that ... involved ... a minor child engaged in sexually explicit conduct." (Doc. 80 at 132-33.) Jurors deliberated for thirty minutes before they sent the court a question, inquiring: "What is the definition of the term 'notice' in Count Two, or should we determine that definition?" (Id. at 144.) The district court discussed the jury's question with counsel and then, without objection, responded to the jury: "You should determine the definition based upon the instructions you have." (Id. at 145.) The jury deliberated another half hour and then returned a verdict convicting Caniff of Count 2, as well as the other two counts.
On appeal, Caniff asserts only a single substantive argument, contending that there was insufficient evidence for a reasonable jury to find that the text messages he sent just to Mandy asking her to send him sexually explicit photos of herself were a "notice or advertisement" for purposes of § 2251(d)(1)(A). We review that argument de novo. See Dixon,
*933filed (U.S. Jan. 10, 2019) (Nos. 18-891 and 18-895). We need not decide whether a jury could find that Caniff's text messages were "advertisements" because we conclude, instead, that a reasonable jury could find that those text messages were "notices" which § 2251(d)(1) made criminal.
The parties agree that, because the statute does not define "notice," that term must be given its ordinary or common, everyday meaning. This is consistent with the approach taken by other circuits addressing similar questions under § 2251(d)(1), see, e.g., United States v. Gries,
Black's Law Dictionary defines "notice" to include "[a] written or printed announcement." Notice, Black's Law Dictionary (10th ed. 2014); see also Notice, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/notice (lasted visited December 12, 2018). See generally Wisconsin Cent. Ltd. v. United States, --- U.S. ----,
We disagree with Caniff's argument that a "notice" must be sent to the general public or at least to a group of people. The most common usage of the word "notice" is not limited exclusively to a public or group component. A notice can, of course, be made to the general public. Caniff points to such an example of "notice" cited by the Merriam-Webster Dictionary-newspaper notices of marriages and deaths. But a public component is not, by definition, required. The Tenth Circuit cited eighteen definitions of "notice" taken from Webster's New Third International Dictionary (1993), noting that none of those definitions required a "public" component. Franklin,
There are numerous examples where "notice" is given from one individual or entity to another. For instance, a utility company might send an individual customer "notice" that the utility is going to turn off that specific customer's service. Black's Law Dictionary uses the example of a *934lease's requirement that a tenant give his landlord thirty days' written "notice" before vacating the leased premises. Notice, Black's Law Dictionary (10th ed. 2014). An employee might notify (or give notice to) his boss that the employee will not be at work tomorrow. One might notify a neighbor to get off the lawn or be sued for trespass, and a parent can give notice to a child that if he does not turn down his music, there will be consequences.
These common uses of "notice" do not require the involvement of the public or a group, and there is no indication that Congress intended any different use of "notice" in § 2251(d)(1). In fact, Congress used extraordinarily broad language in this provision. Congress did not include any adjective in § 2251(d)(1) to limit "notice," and certainly did not add "public" to modify "notice"-as one might expect Congress to have done had it wished to exclude private communications from the statute's coverage. Although this case involves a form of communication that was not in existence when the provision was written, private person-to-person communications have existed as long as the written word. And reading § 2251(d) to include text messages within its reach fits precisely within the category of statutory language that Justice Scalia has embraced as "encompassingly broad language that comes to be applied to technology unknown when the operative words took effect." A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 86-87 (2012).
Indeed, instead of limiting the section's application to notice provided to a group or to the public at large, Congress used more expansive language, proscribing "any notice." (Emphasis added.) See Gries,
Nor does the phrase "make ... notice" require a public audience. Perhaps it's an awkward turn of phrase that one wouldn't use in everyday parlance, but it cannot be described as specifying any particular form of communication. To the contrary, Black's Law Dictionary defines "make" as "caus[ing] (something) to exist < to make a record>." Black's Law Dictionary (10th ed. 2014); see also Random House College Dictionary (1982) ("to write or compose, as a poem"). Thus, as the Supreme Court has said, "[w]hen 'make' is paired with a noun expressing the action of a verb, the resulting phrase is 'approximately equivalent in sense' to that verb." Janus Capital Grp., Inc. v. First Derivative Traders,
*935simply means "to notify," and Congress did not constrain in any way how the defendant could notify his recipient or recipients that he was seeking child pornography. See
Caniff points out that Congress proscribed "any notice or advertisement," and advertisement is commonly defined as "public notice." We have no occasion here to address what constitutes an "advertisement" for purposes of § 2251(d)(1). But Caniff's contention-that an "advertisement" is a "public notice"-cuts against his position because it implies that a simple notice without the adjective "public" is still a notice, needing only the addition of a public audience to be elevated to an advertisement. If the common, ordinary use of "notice" inherently requires a public component, as Caniff argues, there would be no need ever to modify notice with the adjective "public." Furthermore, if both notice and advertisement mean "public notice," then these two terms are largely redundant, and we are reluctant to conclude that two separate words in a statute are redundant. Cf. United States v. Harrison,
For these reasons, we reject Caniff's argument that "notice" requires a public or group component. Instead, "notice" can commonly and ordinarily include one-on-one communications like the text messages at issue here.
Courts applying similar language in the sentencing guidelines have reached a like conclusion. U.S.S.G. § 2G2.2(c)(1), for example, provides a cross-reference that essentially enhances a defendant's offense level "[i]f the offense involved causing, transporting, permitting, or offering or *936seeking by notice or advertisement, a minor to engage in sexually explicit conduct ... for the purpose of transmitting a live visual depiction of such conduct." (Emphasis added.) Courts have held that for purposes of that sentencing guideline, "notice" includes one-on-one communications as emails and instant messaging. See United States v. Long,
Our conclusion-that "notice," for purposes of § 2251(d)(1), is broad enough to include individually directed text messages like the ones at issue here-is bolstered by the "comprehensive regulatory scheme" Congress enacted to "criminaliz[e] the receipt, distribution, sale, production, possession, solicitation and advertisement of child pornography." United States v. Parton,
While Congress, in 1986, probably did not imagine the prevalence today of cell phones and the ease with which sexual predators can reach out to individual children to obtain child pornography, the language Congress used in § 2251(d)(1) is broad enough to encompass such conduct. Furthermore, this conduct goes to the heart of Congress's purpose in enacting § 2251(d)(1), to dry up the child pornography market. Once a predator is able to obtain such child pornography texted to him, he can quickly and easily disseminate it to countless others. Proscribing his doing so serves Congress's purpose in enacting § 2251(d)(1).
Through the one-on-one electronic communications at issue here, a sexual predator can more easily isolate and prey on a single vulnerable child victim than if he sent a widely disseminated notice to many potential victims. We cannot imagine that Congress intended to leave such a loophole in its otherwise comprehensive regulation of child pornography. Such a loophole would leave the most vulnerable of the victims of pedophilia unprotected against the most effective and hardest to detect predatory conduct. That would make no sense at all in a statute that was intended *937to have a broad and comprehensive reach. See Gries,
For all these reasons, we conclude that Caniff's text messages to thirteen-year-old Mandy asking her for sexually explicit pictures of herself can support the jury finding that he made "notices" that he desired to receive child pornography.
It may have been preferable for the district court here to have provided the jury with a legal definition of "notice." But Caniff did not object to the court using just the statutory terms to instruct the jury, nor did he object to the court's decision to respond to jurors' inquiry during deliberations by indicating that they should determine the definition of "notice." Nor has Caniff argued on appeal that the district court made any legal error in submitting this term to the jury for its determination. That issue is, consequently, not presented to us and we, thus, do not address it in this appeal.
We conclude that, in light of the district court's instructions given here, there was sufficient evidence for the jury to find that Caniff's text messages to Mandy requesting photos of her engaging in sexually explicit conduct were "notices" made criminal under § 2251(d)(1).
B. There was sufficient evidence for a jury to find that Caniff believed Mandy was thirteen
Caniff next challenges each of his three convictions, arguing that, in light of his defense that he believed that he was text messaging with an adult woman who was role playing the part of a thirteen-year-old, there was insufficient evidence for the jury to find that he believed he was texting a minor. "We review de novo the sufficiency of the evidence, ... view[ing] the evidence in the light most favorable to the government and draw[ing] all reasonable inferences and credibility choices in favor of the jury's verdict." Dixon,
We will not reverse unless no reasonable trier of fact could find guilt beyond a reasonable doubt. It is not our function to make credibility choices or to pass upon the weight of the evidence. Instead, we must sustain the verdict where there is a reasonable basis in the record for it.
United States v. Farley,
There is a reasonable basis in this record to support the jury's finding that Caniff believed Mandy was a minor. During their exchange of text messages, Mandy expressly told Caniff several times that she was thirteen. See United States v. Rutgerson,
To be sure, there was some other evidence from Caniff after his arrest where *938he professed to believe Mandy was an adult who was role playing to be a minor-Caniff's statements to police, for example, during his interview immediately after his arrest-from which the jury could have found instead that Caniff thought Mandy was an adult role-playing as a thirteen-year-old. But at the very most, that sets up conflicting evidence. However, we must on this appeal take the evidence in the light most favorable to the government and ask only if there was enough, if that evidence was believed, to cause a reasonable jury to convict. In light of that, we must uphold Caniff's convictions. See Farley,
C. The district court did not abuse its discretion in permitting Detective Greene's challenged testimony
Lastly, Caniff challenges Detective Greene's testimony regarding the contents of Caniff's cell phone. After Caniff's arrest, Detective Greene interviewed Caniff and searched his cell phone. On direct examination, the detective testified that on Caniff's cell phone he found pictures of a penis and the text messages that Caniff and Mandy exchanged. During cross-examination, defense counsel asked Detective Greene if he found anything else on Caniff's cell phone:
Q.... Other than that, there was nothing else in the phone of any evidentiary value, correct?
A. In reference to this case, no -- or, I mean --
Q. In reference to anything.
A. -- any other case that I knew of, yes.
Q. There was no other illegal activity - - even if that's illegal activity, there was no illegal activity in the phone, correct?
A. Correct.
Q. Okay. There was no child pornography in his phone, correct?
A. Correct.
Q. There were no chats on his phone that were inappropriate or illegal, correct?
A. Correct.
Q. Okay. The only thing found on his phone was adult pornography, correct?
A. To the best of my knowledge, yes.
Q. Okay. And nothing illegal with what he had, correct?
A. Correct.
(Doc. 80 at 23.) On redirect, the prosecutor asked:
Q. Okay. Now [defense counsel] asked you if there was evidence of any -- I think she said there was no -- she said there was no evidence of any illegal activity in the phone.
Is it your understanding that the text messages are evidence of illegal activity that is what brings us here today?
A. Yes.
[Defense counsel]: Objection, Your Honor. He's asking for an opinion. That's the whole issue in this courtroom today.
THE COURT: Give me just a moment.
I'll overrule the objection. You may answer the question, Detective.
THE WITNESS: Thank you.
*939I assumed aside from what we were here to discuss today, but yes, I found nothing else that was apparent -- apparently illegal in the phone outside of this.
BY [Prosecutor]:
Q. But you gathered the evidence of the text messages.
A. Yes.
Q. And based on the judge's ruling, you can answer. Was that, in your opinion --
A. Yes.
Q. -- evidence of illegal activity.
A. Yes.
Q. And the same question for the photos of the penises that were sent to Agent Beccaccio.
Is it -- based on your training and --
[Defense counsel]: Your honor, same objection.
THE COURT: Same ruling.
BY [Prosecutor]:
Q. Based on your training as a law enforcement officer, did you deem those to be evidence of illegal activity?
A. Yes.
(Doc. 80 at 25-26.)
We review the district court's evidentiary ruling for an abuse its discretion. See United States v. Augustin,
Moreover, even if Detective Greene did give expert testimony, Rule704(b) only precludes an expert from "expressly stat[ing] a conclusion that the defendant did or did not have the requisite intent" and from stating "an opinion as to the defendant's state of mind at the time of the offense." Jeri,
*940Detective Greene, on rebuttal, testified only that he found "evidence of illegal activity" on the phone. Indeed, he did not even say what that evidence was or whether it related at all to Caniff's state of mind. "Evidence of illegality" could as easily have referred to other elements of illegality other than the mens rea element.
But even if we could say that the district court abused its discretion in permitting Detective Greene's challenged testimony, any error was harmless because there is no "reasonable likelihood that it affected [Caniff's] substantial rights." Augustin,
III. CONCLUSION
For the foregoing reasons, we reject Caniff's challenges to his three convictions and AFFIRM.
Miranda v. Arizona,
As noted previously, Whisper only requires users to be thirteen years old or older. There is no evidence about how, or if, that age restriction is enforced.
In Franklin, the Tenth Circuit, nevertheless, assumed for purposes of its analysis, without deciding, that
For the first time in response to one of the Government's Fed. R. App. P. 28(j) letters, Caniff directly invokes the statutory interpretative canon "noscitur a sociis" ("statutory terms are often known by the company they keep," Lagos v. United States, --- U.S. ----,
Caniff does not assert any other arguments regarding the meaning of "notice," so we address only his "public" component argument.
Rule 704 provides:
(a) In General - Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue.
(b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Matthew Brian CANIFF, Defendant-Appellant.
- Cited By
- 11 cases
- Status
- Published