Computer Crimes

United States v. David Wright (1st Cir. August 2019)

The Court reversed the defendant's conviction. In reviewing the trial court’s jury instructions on providing material support or resources to a terrorist organization, the Court held that a defendant does not act “in coordination” with a terrorist group simply by utilizing “strategy” or “tactics” used by that organization and published online by that organization.

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United States v. Samuel Elliott (10th Cir. September 2019)

The Court reversed the defendant's convictions on three of four counts for possession of child pornography. The Court held that 18 U.S.C. § 2252A(a)(5)(B), which prohibits knowingly possessing “any book, magazine...or any other material that contains an image of child pornography," was ambiguous regarding the "unit of prosecution," so the defendant could not be convicted for multiple counts based on having child pornography on multiple devices.

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United States v. Jacob Lickers (7th Cir. June 2019)

The Court affirmed the district court's denial of the defendant's motion to suppress based on a federal search warrant that was based on a defective state warrant. Though the Court agreed with the defendant that “any probable cause deficiency with the state search warrant would, as a matter of law and logic on these facts, heavily inform any conclusion we reach about the sufficiency of probable cause in the federal warrant application,” the Court upheld denial of the motion to suppress since the federal agents acted in good faith when they relied on the state warrant. The Court held that the focus should have been on the federal agents, who had no reason to question the integrity of the state proceedings, though the Court acknowledged that the result may have been different if the record reflected that the FBI had more knowledge about the state court proceedings

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United States v. Matthew Caniff

United States v. Matthew Caniff, No. 17-12410 (February 15, 2019)

The Court affirmed the defendant’s conviction under 18 U.S.C. § 2251(d), holding that the defendant “made a notice” requesting child pornography when he sent a text message soliciting naked pictures from an undercover agent posing as a minor. The Court also found sufficient evidence that the defendant believed he was communicating with a minor and that the district court properly admitted an officer’s testimony that he considered the defendant’s text messages evidence of illegal activity.

18 U.S.C. § 2251(d) – A defendant can be convicted of making a notice or advertisement seeking to receive child pornography based on sending private text messages requesting sexually explicit pictures of minors, whether to a minor or another individual.

Evidence/Rule 704(b) – A witness may testify as to facts supporting “even an obvious inference with respect to the defendant’s state of mind” as long as the testimony does not expressly state an opinion on the defendant’s state of mind.

After a sting operation in which Matthew Caniff had exchanged sexually explicit communications with an undercover officer pretending to be a 13-year-old girl, Caniff was convicted of three sex offenses: 1) attempting to entice a minor under 18 U.S.C. § 2422; 2) advertising child pornography under 18 U.S.C. § 2251(d); and 3) attempted production of child pornography under 18 U.S.C. § 2251(a)

On appeal, Caniff argued there was insufficient evidence to convict him under § 2251(d), which criminalizes using interstate communications to make “any notice or advertisement” seeking child pornography. While exchanging messages with the officer posing as a minor, Caniff had sent text messages requesting nude pictures.

The Court rejected Caniff’s argument that these text messages did not constitute a “notice or advertisement” under § 2251(d). While declining to decide whether the messages constituted “advertisements,” the Court held that the text messages were “notices” under the plain and ordinary meaning of the word “notice,” which simply means “a written or printed announcement.” Caniff’s request did not have to be sent to the general public or a group of people to have “announced” his request for child pornography—the statutory definition of notice “is broad enough to include individually directed text messages.” Caniff’s private text message to the officer served as a “notice” that he was seeking child pornography.

The Court also held that there was sufficient evidence for a jury to find that Caniff believed the officer was a thirteen-year-old girl, including her own statements that she was thirteen and clues suggesting she was a child, such as her discussing spring break, not being old enough to drive, and her sexual inexperience. The Court added that there was nothing in the text messages supporting Caniff’s defense that he thought he was role-playing with an adult.

Caniff also argued in his appeal that the district court abused its discretion in admitting the officer’s testimony that the text messages in Caniff’s phone were “evidence of illegal activity,” which Caniff argued was prohibited under Federal Rule of Evidence 704(b) as an opinion about a defendant’s state of mind.

The Court noted that Rule 704(b) applies to expert opinions, and the officer had not been qualified as such, but that the evidence was nonetheless admissible since Rule 704(b) does not preclude testimony supporting even an “obvious inference with respect to the defendant’s state of mind,” as long as the testimony does not actually state an opinion expressly addressing the defendant’s state of mind.

In dissent, Judge Newsom objected to the majority’s holding that Caniff had “made a notice” for child pornography. First, he noted that “that’s just not how people talk,” and that the majority’s “expansive construction” of the statutory text was based on how they “might conceivably be used” as opposed to “how they are used in their ordinary and usual sense.” Citing the context of the statute, which focuses on printing and publishing, Judge Newsom concluded that “making a notice” under § 2251 should not extend to private, person-to-person text messages. 

Appeal from the Middle District of Florida

Opinion by Ebel (10th Circuit), joined by Marcus

Newsom concurring in part, dissenting in part

TAGS:  Federal Child Pornography and Exploitation Crimes, Federal Computer Crimes

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