UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MATTHEW BRIAN CANIFF, Defendant-Appellant.
No. 17-12410
United States Court of Appeals for the Eleventh Circuit
April 9, 2020
Before NEWSOM, MARCUS, and EBEL, Circuit Judges.
[PUBLISH] D.C. No. 3:16-cr-00060-BJD-JRK-1. Appeal from the United States District Court for the Middle District of Florida. * The Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by designation.
Upon reconsideration, this Court sua sponte VACATES its prior opinion, published at 916 F.3d 929 (11th Cir. 2019), and substitutes the following in its place.
In this direct criminal appeal, Defendant Matthew Caniff challenges his convictions for three federal child sex offenses. After careful review of the record, and with the benefit of oral argument, we REVERSE Caniff‘s conviction under
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 sub nom. Portela v. United States, 139 S. Ct. 854 (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.” (Id. 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
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 Miranda1 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
II. DISCUSSION
A. Caniff‘s text messages requesting that Mandy send him sexually explicit photos cannot 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
(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 the 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.) The 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 contends 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
The parties agree that, because the statute does not define the terms “notice” or “advertisement,” those terms must be given
We begin with what we consider to be the easier question—namely, whether the ordinary meaning of the term “advertisement” is broad enough to encompass Caniff‘s private, person-to-person text messages. We think it clear that it isn‘t. Standard English-language dictionaries confirm what we all know to be true—that, at least as used in modern parlance, an “advertisement” entails a public, and typically commercial, statement. Webster‘s Second, for instance, defines “advertisement” (in the only entry not marked either “[o]bs[olete]” or “[a]rchaic“) to mean “[a] public notice, esp. in some public print, as a newspaper, periodical, book, poster, or handbill . . . .” Webster‘s Second New International Dictionary 39 (1944). Webster‘s Third echoes that definition, adding only that an advertisement is typically “paid” and may also be disseminated “over radio or television.” Webster‘s Third New International Dictionary 31 (2002). The Oxford English Dictionary likewise defines “advertisement” (in its non-obsolete, non-archaic sense) to mean “a public notice or announcement, now esp. one advertising goods or services“—originally “on a placard, poster, etc., or in a journal or newspaper,” and more recently “on a broadcast medium, [such] as radio, television, etc.” Advertisement, Oxford English Dictionary, www.oed.com/view/Entry/2978 (last visited March 25, 2020). In Black‘s, more of the same: “[a] commercial solicitation“—“an item of published or transmitted matter made with the intention of attracting clients or customers.” Black‘s Law Dictionary 65 (10th ed. 2009). Caniff‘s text messages to Mandy were neither public nor commercial. They were private requests for sexually explicit material. Accordingly, they were not “advertisement[s].”
The more difficult question, we think—and the question to which the lion‘s share of our analysis is devoted—is whether the ordinary meaning of the term “notice” can fairly be understood to encompass Caniff‘s private, person-to-person text messages. Dictionaries define “notice” in various ways. Some definitions suggest that the word is broad enough to capture purely private communications. Dictionary.com, for instance, suggests that “notice” can include targeted communications, defining the term simply to mean “a note, placard, or the like conveying information or a warning.” Notice, Dictionary.com, www.dictionary.com/browse/notice (lasted visited March 25, 2020). Along the same lines, the Seventh Circuit noted in its opinion in Gries that Webster‘s Third defines “notice” to include a “warning or intimation of something,” as does the New Oxford American Dictionary (3d ed. 2010). 877 F.3d at 260. And in its opinion in Franklin, the Tenth Circuit cited a host of definitions of “notice” taken from a different version of Webster‘s Third, observing that none of them required “a public component.” 785 F.3d at 1368 (citing Webster‘s Third New International Dictionary 1544 (1993)).3
Other definitions, though, indicate that “notice” refers only to public communications.
printed announcement or bulletin“—like “insert[ing] a [notice] in the newspaper.” Webster‘s Third at 1544. And the OED: “[a] displayed sign or placard giving news or information” (such as, for example, “notices on the bulletin board at your grocery store, describing your product and giving a price“) or “[a] short announcement or advertisement in a newspaper, magazine, etc.” Notice, Oxford English Dictionary, www.oed.com/view/Entry/128591 (last visited March 25, 2020). And Black‘s, as well: “[a] written or printed announcement“—as in “the notice of sale was posted on the courthouse bulletin board.” Black‘s Law Dictionary at 1227.
In the end, these contrasting dictionary definitions serve mainly to tee up the issue before us—namely, whether the word “notice,” as used in
Recall that, in relevant part,
For two reasons, though, we are reluctant to read the term “make[]“—and with it the phrase “make[] . . . any notice“—for all it might possibly be worth. First, the phrase “make[] . . . any notice” does not—at least “in [its] ordinary and usual sense,” Caminetti v. United States, 242 U.S. 470, 485-86 (1917)—naturally signal the private-communication variant of the word “notice.” When invoking the person-to-person understanding, the average speaker of American English would typically refer to giving “notice“: a utility company might give an individual customer “notice” that it is going to turn off the customer‘s service; an employee might give “notice” to his boss that he won‘t be at work tomorrow; and a parent might give “notice” to a child that if he
Second, we must contend with the words that follow “make[]“—“print[]” and “publish[].” Both of these terms clearly denote public communication. Webster‘s Second, for instance, defines “publish” to mean “[t]o make public announcement of” or “to make known to people in general“—or, alternatively, “[t]o bring before the public, as for sale or distribution.” Webster‘s Second at 2005. Webster‘s Third similarly defines the term to mean “to declare publicly” or to “make generally known“—or, alternatively, “to call to the attention of the public: advertise,” “to place before the public (as through a mass medium),” or to “disseminate.” Webster‘s Third at 1837. “Print” is similar. The most pertinent definition in Webster‘s Second defines “print” to mean “[t]o publish a book, article, music, or the like,” Webster‘s Second at 1967, and the successor in Webster‘s Third treats the term as a subset of publishing generally, defining it to include “to publish in print“—as in “all the news that‘s fit to [print],” Webster‘s Third at 1803. On balance, then, we think that the context provided by the terms “print[]” and “publish[]” operates to cabin the meaning of the word “make[]” as used in
When we shift our focus from the verb phrase “make[], print[], or publish[]” to its object—“any notice or advertisement“—we find contextual clues pointing in opposite directions. On one side of the ledger, there is the fact that
There is, though, contextual evidence that cuts the other way—most notably, Congress‘s juxtaposition of the terms “notice” and “advertisement.” As we‘ve already explained, see supra at 8-9, the word “advertisement” clearly connotes a public communication. Applying the
As our back-and-forth, tennis-match-ish analysis indicates, neither dictionary definitions nor the traditional canons of statutory interpretation neatly resolve the question we face here—whether, as used in
The rule of lenity holds that if at the end of the interpretive road—having exhausted the applicable semantic and contextual canons of interpretation, and thus “seiz[ed] everything from which aid can be derived,” Ocasio v. United States, 136 S. Ct. 1423, 1434 n.8 (2016) (internal quotation marks omitted)—meaningful doubt remains about the application of a criminal statute to a defendant‘s conduct, then the doubt should be resolved in the defendant‘s favor. See Scalia & Garner, supra, at 296-302. The rule is born of the principle that the law “must speak ‘in language that is clear and definite’ if it is to render something a crime,” United States v. Phifer, 909 F.3d 372, 383 (11th Cir. 2018) (quoting United States v. Bass, 404 U.S. 336, 347 (1971)), and serves the twin aims of (1) ensuring that the public is given a “fair warning” that punishment will follow when “a certain line is passed” and (2) preserving the “separation-of-powers doctrine, [which] requires [that] legislatures, not courts . . . define crimes,” id.
We have serious doubts about whether the phrase “make[] . . . any notice” in
We think it important to note that our interpretation does not, as the government warns, “thwart”
Nor does our interpretation, as the government insists, “circumvent federal law” by “creat[ing] a one-on-one advertisement exception for persons interested in child pornography.” (Aple. Br. 39.) Regardless of what we decide today about the scope of
Then there‘s
As these provisions (and the balance of our opinion) make clear, our interpretation
* * *
Relying on the rule of lenity, we hold that there was insufficient evidence for the jury to find that Caniff‘s private, person-to-person text messages to “Mandy” requesting sexually explicit photos were “notice[s]” “ma[de]” within the meaning of
B. There was sufficient evidence for a jury to find that Caniff believed Mandy was thirteen
Caniff next challenges his remaining two convictions, arguing that, in light of his defense that he believed that he was text messaging with an adult woman who was role playing the part of a thirteen-year-old, there was insufficient evidence for the jury to find that he believed he was texting a minor.5 “We review de novo the sufficiency of the evidence[,] . . . view[ing] the evidence in the light most favorable to the government and draw[ing] all reasonable inferences and credibility choices in favor of the jury‘s verdict.” Dixon, 901 F.3d at 1335 (internal quotation marks and citation omitted).
We will not reverse unless no reasonable trier of fact could find guilt beyond a reasonable doubt. It is not our function to make credibility choices or to pass upon the weight of the evidence. Instead, we must sustain the verdict where there is a reasonable basis in the record for it.
United States v. Farley, 607 F.3d 1294, 1333 (11th Cir. 2010) (internal quotation
marks and citations omitted).
There is a reasonable basis in this record to support the jury‘s finding that Caniff believed Mandy was a minor. During their exchange of text messages, Mandy expressly told Caniff several times that she was thirteen. See United States v. Rutgerson, 822 F.3d 1223, 1228-30, 1232-33 (11th Cir. 2016) (holding there was sufficient evidence for jury to find defendant believed he was electronically conversing with fifteen-year-old because she told him in her emails and text messages that she was fifteen); United States v. Yost, 479 F.3d 815, 819 (11th Cir. 2007) (per curiam) (holding there was sufficient evidence for jury to find that the defendant acted with specific intent to persuade a minor to engage in criminal sexual activity where “both girls told Yost they were under-age multiple times“). In addition, a jury could find that many of Mandy‘s text messages suggested that she was thirteen—being on spring break, not being old enough to drive, and being sexually inexperienced. Furthermore, there was nothing in their text messages that expressly or even inferentially
To be sure, there was some other evidence from Caniff after his arrest where he professed to believe Mandy was an adult who was role playing to be a minor—Caniff‘s statements to police, for example, during his interview immediately after his arrest—from which the jury could have found instead that Caniff thought Mandy was an adult role playing as a thirteen-year-old. But at the very most, that sets up conflicting evidence. However, we must on this appeal take the evidence in the light most favorable to the government and ask only if there was enough, if that evidence was believed, to cause a reasonable jury to convict. In light of that, we must uphold Caniff‘s convictions. See Farley, 607 F.3d at 1300, 1333-34 (holding evidence was sufficient for trial court conducting bench trial to find that defendant who believed he was texting a mother about having sex with her and her ten-year-old daughter “was ‘for real,’ and to disbelieve his insistence at trial that it was all a fantasy“); Yost, 479 F.3d at 819 (holding there was sufficient evidence for jury to find that defendant had specific intent to persuade minor to engage in criminal sexual activity, despite his assertion that “he believed he was communicating with adult women role-playing as minors“).
C. The district court did not abuse its discretion in permitting Detective Greene‘s challenged testimony
Lastly, Caniff challenges Detective Greene‘s testimony regarding the contents of Caniff‘s cell phone. After Caniff‘s arrest, Detective Greene interviewed Caniff and searched his cell phone. On direct examination, the detective testified that on Caniff‘s cell phone he found pictures of a penis and the text messages that Caniff and Mandy exchanged. During cross-examination, defense counsel asked Detective Greene if he found anything else on Caniff‘s cell phone:
Q. . . . Other than that, there was nothing else in the phone of any evidentiary value, correct?
A. In reference to this case, no -- or, I mean --
Q. In reference to anything.
A. -- any other case that I knew of, yes.
Q. There was no other illegal activity - - even if that‘s illegal activity, there was no illegal activity in the phone, correct?
A. Correct.
Q. Okay. There was no child pornography in his phone, correct?
A. Correct.
Q. There were no chats on his phone that were inappropriate or illegal, correct?
A. Correct.
Q. Okay. The only thing found on his phone was adult pornography, correct?
A. To the best of my knowledge, yes.
Q. Okay. And nothing illegal with what he had, correct?
A. Correct.
(Doc. 80 at 23.) On redirect, the prosecutor asked:
Q. Okay. Now [defense counsel] asked you if there was evidence of any -- I think she said there was no -- she said there was no evidence of any illegal activity in the phone.
Is it your understanding that the text messages are evidence of illegal activity that is what brings us here today?
A. Yes.
[Defense counsel]: Objection, Your Honor. He‘s asking for an opinion. That‘s the whole issue in this courtroom today.
THE COURT: Give me just a moment.
THE WITNESS: Thank you.
I assumed aside from what we were here to discuss today, but yes, I found nothing else that was apparent -- apparently illegal in the phone outside of this.
BY [Prosecutor]:
Q. But you gathered the evidence of the text messages.
A. Yes.
Q. And based on the judge‘s ruling, you can answer. Was that, in your opinion --
A. Yes.
Q. -- evidence of illegal activity.
A. Yes.
Q. And the same question for the photos of the penises that were sent to Agent Beccaccio.
Is it -- based on your training and --
[Defense counsel]: Your honor, same objection.
THE COURT: Same ruling.
BY [Prosecutor]:
Q. Based on your training as a law enforcement officer, did you deem those to be evidence of illegal activity?
A. Yes.
(Id. at 25-26.)
“We review the district court‘s evidentiary ruling[] for an abuse of discretion.” United States v. Augustin, 661 F.3d 1105, 1123 (11th Cir. 2011) (per curiam). Caniff argues primarily that this testimony violated Federal Rule of Evididence 704(b), which “[i]n a criminal case,” precludes an expert‘s “opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.”6 But Detective Greene was never offered or qualified as an expert witness. “[J]ust because a lay witness‘s position and experience could have qualified him for expert witness status does not mean that any testimony he gives at trial is considered ‘expert testimony.’ Lay witnesses may draw on their
professional experiences to guide their opinions without necessarily being treated as expert witnesses.” United States v. Jeri, 869 F.3d 1247, 1265 (11th Cir. 2017) (citation, internal quotation marks, alterations omitted) (holding police officer did not testify as expert even though his testimony “showed [his] familiarity with narcotics investigations and his experience interviewing drug couriers“), cert. denied, 138 S. Ct. 529 (2017).
Moreover, even if Detective Greene did give expert testimony, Rule 704(b) only precludes an expert from “expressly stat[ing] a conclusion that the defendant did or did not have the requisite intent” and from stating “an opinion as to the defendant‘s state of mind at the time of the offense.” Id. at 1266 (internal quotation marks omitted). But Rule 704(b) does not preclude even “expert testimony that supports an obvious inference with respect to the defendant‘s state of mind if that testimony does not actually state an opinion on this ultimate issue, and instead leaves this inference for the jury to draw.” Augustin, 661 F.3d at 1123 (internal quotation marks and alteration omitted). Detective Greene‘s challenged testimony may be ambiguous, but it clearly did not expressly address Caniff‘s mental state. Detective Greene‘s testimony did not at all address whether
But even if we could say that the district court abused its discretion in permitting Detective Greene‘s challenged testimony, any error was harmless because there is no “reasonable likelihood that it affected [Caniff‘s] substantial rights.” Id. (internal quotation marks and alteration omitted). It was defense counsel, not the Government, who first asked the detective if there was “illegal activity” on the phone. The Government, on redirect, was merely attempting to clarify any confusion the detective‘s responses on cross-examination may have created, and to explain why he gathered the text messages as evidence. We cannot conclude the district court abused its discretion in admitting this testimony but even if the district court did so, any error was harmless.
III. CONCLUSION
For the foregoing reasons, we REVERSE Caniff‘s conviction under
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MATTHEW BRIAN CANIFF, Defendant-Appellant.
No. 17-12410
United States Court of Appeals for the Eleventh Circuit
April 9, 2020
NEWSOM, Circuit Judge, concurring:
I concur in the Court‘s revised opinion. For reasons that I‘ve already explained at length and needn‘t repeat here, I am convinced that
Notes
(a) In General – Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue.
(b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.