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
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