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.
