United States v. Matthew Caniff (11th Cir. 2020)

The Federal Docket

Sex Offenses/”Making a Notice” – Sending private, person-to-person text messages asking a minor for sexually explicit pictures does not constitute “making a notice” to receive child pornography in violation of 18 U.S.C. § 2251(d)(1).

The panel sua sponte vacated its prior opinion, in which it had found that the defendant’s acts of requesting nude pictures through text messages to an undercover officer posing as a minor was sufficient to sustain his conviction under 18 U.S.C. § 2251(d)(1), which applies to anyone who “knowingly makes, prints, or publishes, or causes to be made, printed, or published, any notice or advertisement seeking or offering” child pornography. The Court had previously held that the defendant’s actions constituted “making a notice.”

Upon vacating its prior order, the Court reversed the defendant’s conviction under 18 U.S.C. § 2251(d)(1), holding that, based on the context of the statute (which discussed advertising and publishing), it was ambiguous whether “notice” means only “public notice.” As such, the rule of lenity applied and compelled reading the statute in the light most favorable to the defendant. Under this light, the defendant’s private text messages to the officer did not constitute “making a notice.”

On appeal from the Middle District of Florida

Per Curiam Opinion

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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