United States v. Caniff

• Decision Date: 15 February 2019
• Docket Number: No. 17-12410,17-12410
• Citation: 916 F.3d 929
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Matthew Brian CANIFF, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

916 F.3d 929

UNITED STATES of America, Plaintiff-Appellee,

v.Matthew Brian CANIFF, Defendant-Appellant.

No. 17-12410

United States Court of Appeals, Eleventh Circuit.

February 15, 2019

David Charles Waterman, U.S. Attorney Service - Middle District of Florida, U.S. Attorney's Office, TAMPA, FL, for Plaintiff-Appellee.

Conrad Benjamin Kahn, Rosemary Cakmis, Donna Lee Elm, Federal Public Defender's Office, ORLANDO, FL, Susan Good Yazgi, Federal Public Defender's Office, JACKSONVILLE, FL, for Defendant-Appellant.

Before, MARCUS, NEWSOM, and EBEL,^* Circuit Judges.

EBEL, Circuit Judge:

In this direct criminal appeal, Defendant Matthew Caniff challenges his convictions for three federal child sex offenses. Having jurisdiction under 28 U.S.C. § 1291, we AFFIRM each conviction. In doing so, we hold, among other things, that Caniff’s text messages asking a person he thought was a minor to send him sexually explicit pictures of herself can support a conviction for making a "notice" to receive child pornography in violation of 18 U.S.C. § 2251(d)(1)(A).

I. BACKGROUND

The evidence at trial, viewed in the light most favorable to the jury’s verdict, see United States v. Dixon, 901 F.3d 1322, 1335 (11th Cir. 2018), cert. denied, ––– U.S. ––––, 139 S.Ct. 854, ––– L.Ed.2d ––––, 2019 WL 113506 (2019), established the following: St. John’s County, Florida law enforcement initiated an operation to locate individuals who have a sexual interest in children and who were willing to act on that interest. As part of the operation, FBI Special Agent Abbigail Beccaccio posed as "Mandy," a thirteen-year-old girl, on "Whisper." Whisper is an online website and cellphone application "that allows users to text or communicate anonymously with other users." (Aplt. Br. 3.) Whisper’s "terms of use" provide that "individuals who use Whisper must be at least 13 years of age ... and that if you are between the ages of 13 and 18, that you should be supervised by a parent." (Doc. 79 at 35-36.)

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 break 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 ¹ warnings, officers interviewed him. During that interview, Caniff acknowledged that Mandy had told him she was thirteen, but he stated that on the Whisper "application, it says that you have to be at least 17 or 18 to download,² so I assumed that that was the age. I thought that there was some kind of role-playing going on." (Gov’t ex. 27A at 5 (footnote added); see also id. at 9-10 ("I thought we were role-playing ... because ... the site says that you have to be an adult ..., so I believe that you have to be an adult. ... I assumed that she was role-playing. ... I assumed that I wasn’t meeting a juvenile.").)

The United States charged Caniff with three offenses: 1) attempting to entice a minor to engage in illegal sexual conduct, in violation of 18 U.S.C. § 2422(b) ; 2) advertising for child pornography, in violation of 18 U.S.C. § 2251(d)(1)(A) and (2)(B) ; and 3) attempted production of child pornography, in violation of 18 U.S.C. § 2251(a). For these federal offenses, a minor is defined as "any person under the age of eighteen years." 18 U.S.C. § 2256(1). Count 1 relied on Florida law, which defines a minor to be under sixteen years of age. These offenses required the Government to prove, not that there was an actual child victim, but that Caniff believed he was texting with a minor. See United States v. Rothenberg, 610 F.3d 621, 626 (11th Cir. 2010) ( § 2422(b) ); United States v. Lee, 603 F.3d 904, 913 (11th Cir. 2010) ( § 2251(a) ). At trial, Caniff’s primary defense was that he believed he was, instead, communicating with an adult who was role playing as a thirteen-year-old. The jury rejected that defense and convicted Caniff of each of the three charged offenses. The district court imposed three concurrent fifteen-year sentences, followed by five years’ supervised release.

II. DISCUSSION

A. Caniff’s text messages requesting that Mandy send him sexually explicit photos can support an 18 U.S.C. § 2251(d)(1)(A) conviction for making a "notice" seeking to receive child pornography

Caniff challenges his Count 2 conviction for violating 18 U.S.C. § 2251(d)(1)(A) and (2)(B), which provides:

(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, 901 F.3d at 1335 (reviewing de novo whether evidence was sufficient to support conviction); see also United States v. Jim, 891 F.3d 1242, 1250-51 (11th Cir. 2018) (addressing statutory construction de novo), petitions for cert. filed (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, 877 F.3d 255, 260 (...