29 F.4th 665
11th Cir.2022Background
- Minor (A.L.) reported sexual solicitations via texts/apps from a number linked to Lee; FBI agent, posing as the minor after obtaining her phone, exchanged messages and was asked for explicit images.
- Lee was indicted in 2018 under 18 U.S.C. § 2251(d)(1) (solicitation/advertisement for child pornography) based on private cellphone messages; tried in March 2020 and convicted under then-controlling precedent (Caniff I).
- Shortly after conviction, this Court issued Caniff II, holding that private one-to-one text messages do not satisfy § 2251(d)(1)’s “notice” element; the government did not oppose renewed acquittal motion and the district court set aside the verdict.
- While the § 2251(d) conviction was being set aside, the government obtained a new indictment (May 2020) charging Lee with attempting to violate 18 U.S.C. § 2251(a) based on the same underlying communications.
- Lee moved to dismiss the § 2251(a) indictment on double jeopardy grounds; the district court denied the motion, finding the two offenses different, and Lee appealed.
- The Eleventh Circuit affirmed, applying Blockburger and concluding each statute requires proof of an element the other does not ( §2251(d) requires making/publishing a “notice”; §2251(a) requires persuading/inducing a minor for the purpose of producing a visual depiction).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether charging §2251(a) after acquittal on §2251(d) violates Double Jeopardy | Lee: §2251(d) requires no additional fact beyond §2251(a); successive prosecution is for same offense | Gov.: Under Blockburger, each statute requires a distinct additional fact; Congress’s intent unclear so Blockburger controls | Affirmed denial of dismissal; offenses distinct because each requires proof the other does not |
| Effect of Caniff II on this prosecution | Lee: Government should not rely on post-conviction narrowing of §2251(d) to prosecute under §2251(a) | Gov.: Caniff II clarified statutory meaning; the acquittal followed that correct construction and does not bar charging a different offense | Court treated Caniff II as authoritative statement of the statute; distinction between offenses remains valid |
Key Cases Cited
- United States v. Caniff, 916 F.3d 929 (11th Cir. 2019) (panel decision holding private texts could constitute §2251(d) "notice")
- United States v. Caniff, 955 F.3d 1183 (11th Cir. 2020) (en banc panel decision clarifying private one-to-one text messages do not satisfy §2251(d) "notice")
- Blockburger v. United States, 284 U.S. 299 (Sup. Ct. 1932) (test whether each offense requires proof of an additional fact)
- Albernaz v. United States, 450 U.S. 333 (Sup. Ct. 1981) (Blockburger is an elemental statutory-elements inquiry)
- United States v. Hassoun, 476 F.3d 1181 (11th Cir. 2007) (Blockburger analysis for overlapping statutory offenses)
- United States v. Ruggiero, 791 F.3d 1281 (11th Cir. 2015) (describing §2251(a) as the production provision; mens rea/purpose requirement)
- United States v. Gries, 877 F.3d 255 (7th Cir. 2017) (describing §2251(d)’s actus reus as making/publishing a notice or advertisement)
- Tilton v. Playboy Ent. Grp., 554 F.3d 1371 (11th Cir. 2009) (discussing §2251(a)’s requirement that the conduct be for the purpose of producing a visual depiction)