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11th Circuit Upholds Conviction in Internet Sting Case


March 31, 2019

The 11th Circuit Court of Appeals held that the defendant’s text messages to a federal agent, who was posing as a 13-year-old girl, requesting that she send him sexually explicit photos of herself was sufficient to constitute the offense of making a “notice” seeking the receipt of child pornography.

In United States v. Caniff, the defendant was arrested in a sex sting operation after he began interacting on Whisper with an FBI agent. The agent said that she was 13 years old and the text messages eventually turned sexual. The defendant asked “the girl” to send him nude photos of herself.

Following his conviction at trial, the defendant appealed his conviction for the federal offense of knowingly making “any notice or advertisement” seeking to receive child pornography.

The defendant contended that the evidence was insufficient to establish that the text messages requesting the nude photos were a “notice or advertisement” for purposes of the statute. The Court concluded that the messages constituted a “notice” under the statute.

Despite the fact that the term “notice” is not defined by the statute, the Circuit Court noted that the term is defined by Black’s Law Dictionary as “a written or printed announcement.” The Court also looked to common dictionary definitions in Merriam-Webster, Dictionary.com, and the New Oxford American Dictionary, which indicate that a “notice” can be a “note” or a “warning or intimation of something.”

The defendant argued that a “notice” must be something that is sent to the general public or at least to a group of people. The Court rejected this argument, stating that none of the eighteen dictionary definitions that it consulted required a “public” component.

By way of example, the Court pointed out that a utility company may send a notice to an individual customer that a bill is past due or that service may be cut off. Or someone might give a neighbor a criminal trespass notice to get off his or her property. The Court reasoned that these common uses of the term “notice” do not contemplate the involvement of the general public or a group of people.

The Court concluded that the term “notice,” as used in the statute, is broad enough to encompass private text messages sent from one individual to another. It was emphasized that this interpretation is consistent with Congress’ intent to enact broad legislation to “eliminate the exchange of child pornography.”

While the federal statute in question was enacted in 1986, well before the advent of personal cell phones and the internet, the Court felt that the language used was broad enough to include such conduct. Otherwise, as surmised by the Court, the statute would have a gaping loophole that would fail to criminalize the private solicitation of child pornography.

As a result, the Court affirmed the defendant’s conviction for the federal offense of making a “notice” seeking the receipt of child pornography.

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