Solicitation of sexually explicit images from a purportedly 13-year-old girl was notice under the criminal statute

Caniff was convicted of attempting to entice a minor to engage in illegal sexual conduct, with advertising for child pornography and attempted production of child pornography. The underlying facts began with an F.B.I. agent posing as a thirteen-year-old girl on Whisper, and online website and cellphone application that allows users to text or communicate anonymously with other users. The terms of Whisper’s use provide that individuals who use Whisper must be at least 13 years of age and users between the ages of 13 and 18 must be supervised by a parent.

The agent posted a photo of another agent that was age regressed to make the person look childlike posted a message from “Mandy” the purported 13-year-old. Caniff, a 32-year-old pharmacy technician responded to Mandy and after a series of text exchanges he sent several pictures of his penis and asked her for pictures of her genitalia and of her masturbating. Eventually Mandy agreed to have sex with Caniff. When he arrived at the location they were supposed to meet, he was arrested. After Caniff waived his right to remain silent, pursuant to the Fifth and Sixth Amendments, he agreed to talk to the officers without an attorney present and said he though Mandy was 18 and she was role playing.

He raised the role-playing defense at his trial and that he believed he was communicating with an adult who was role playing as a thirteen-year-old. The jury rejected that defense and convicted him of each of the charged offenses.

In his appeal Caniff challenged his conviction contending there was insufficient evidence for a reasonable jury to find that the test messages he sent Mandy asking her to send him sexually explicit photos of herself were a “notice or advertisement” for the purpose of the statute, section 2251d1A which makes it an offense for any person to knowingly make, print, or publish…any notice or advertisement seeking or offering the sexually explicit conduct or visual depiction of such conduct. Caniff’s criminal defense attorney argued put out a “notice” because it was not sent out to the general public or at least a group of people. The court of appeals rejected his argument that notice requires a public or group component. Instead notice can commonly and ordinarily include one on one communications like his text messages with Mandy. The court concluded there was sufficient evidence for the jury to find that Caniff’s text messages to Mandy requesting photos of her engaging in sexually explicit conduct were considered notices under the statute.

The court also rejected Caniff’s argument of insufficient evidence for a jury to find that Caniff believed he was texting to a thirteen-year-old. The court found the that there was a reasonable basis in the trial record to support the jury’s finding that he believed he was texting to an underage girl. Nothing in the text messages that expressly o suggested that Mandy was an adult or that they were engaging in role playing.   The court also rejected Caniff’s challenge to the district court’ evidentiary ruling that allowed an agent to give an opinion as to whether Caniff’s phone contained evidence of illegal activity.

The concurring and dissenting in part opinion by J. Newsom about the strained interpretation of the word “notice” is worth reading if only for his description of a scene from the movie A Man for All Seasons.