In United States v. Caniff, No. 17-12410 (Feb. 15, 2019) (Ebel (10th), Marcus, Newsom), the Court affirmed the defendant's child sex convictions.
First, and primarily, the Court held that, as a matter of statutory construction, requesting that a minor send sexually explicit photos can support a conviction for "making" a "notice" seeking child pornography, in violation of 2251(d)(1)(A). The Court rejected the defendant's argument that a "notice" must be sent to the general public or at least a group of people. Because a public component was not required, the defendant's private text messages with the minor sufficed.
Second, the Court found sufficient evidence that the defendant believed that the victim was a minor. The victim told the defendant several times that she was 13, was not old enough to drive, and was sexually inexperienced.
Third, the Court found no abuse of discretion in permitting an officer to testify about the contents of the defendant's cell phone. The Court rejected the defendant's argument that the officer opined on the ultimate issue, in violation of Rule 704(b), because the officer was not testifying as an expert witness, and lay witnesses may draw on their professional experiences. In addition, the officer did not expressly opine on the defendant's mental state about the age of the victim, only whether he generally found evidence of illegal activity on the phone. And any error was harmless in any event because it was the defense, not the government, who first asked the detective the question.
Judge Newsom concurred in part and dissented in part. After discussing his favorite movie and opining that the defendant's conduct was "devlish," he reluctantly opined that the majority's reading of 2251(d) was incorrect and did not reach the defendant's conduct. As a matter of common language, sending a request via text message was not "making" a "notice." He found that the word "notice," as used in that particular statutory context, would not be understood by the average American to cover a private text message. And he rejected the majority's purposive approach, as the defendant's conduct was covered by other statutes.