from the United States District Court for the Middle District
of Florida, D.C. No. 3:16-cr-00060-BJD-JRK-1
Before, MARCUS, NEWSOM, and EBEL, [*] Circuit Judges.
direct criminal appeal, Defendant Matthew Caniff challenges
his convictions for three federal child sex offenses. Having
jurisdiction under 28 U.S.C. § 1291, we AFFIRM each
conviction. In doing so, we hold, among other things, that
Caniff's text messages asking a person he thought was a
minor to send him sexually explicit pictures of herself can
support a conviction for making a "notice" to
receive child pornography in violation of 18 U.S.C. §
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, 2019
WL 113506 (U.S. Jan. 7, 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.
"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
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." (Doc. 79 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.)
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
asked Caniff if he was old enough to drive; Caniff said he
was; Mandy responded: "Sweet!! I'm not old enough
too [sic]." (Id. at 4.) Caniff then asked Mandy
if she had a bikini and was it cute. (Id. at 5.)
Caniff soon agreed with Mandy to leave Whisper and instead
text message each other.
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.
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
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.
giving Caniff Miranda 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,  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.").)
United States charged Caniff with three offenses: 1)
attempting to entice a minor to engage in illegal sexual
conduct, in violation of 18 U.S.C. § 2422(b); 2)
advertising for child pornography, in violation of 18 U.S.C.
§ 2251(d)(1)(A) and (2)(B); and 3) attempted production
of child pornography, in violation of 18 U.S.C. §
2251(a). For these federal offenses, a minor is defined as
"any person under the age of eighteen years." 18
U.S.C. § 2256(1). Count 1 relied on Florida law, which
defines a minor to be under sixteen years of age. These
offenses required the Government to prove, not that there was
an actual child victim, but that Caniff believed he was
texting with a minor. See United States v.
Rothenberg, 610 F.3d 621, 626 (11th Cir. 2010) (§
2422(b)); United States v. Lee, 603 F.3d 904, 913
(11th Cir. 2010) (§ 2251(a)). At trial, Caniff's
primary defense was that he believed he was, instead,
communicating with an adult who was role playing as a
thirteen-year-old. The jury rejected that defense and
convicted Caniff of each of the three charged offenses. The
district court imposed three concurrent fifteen-year
sentences, followed by five years' supervised release.
Caniff's text messages requesting that Mandy send him
sexually explicit photos can support an 18 U.S.C. §
2251(d)(1)(A) conviction for making a "notice"
seeking to receive child pornography
challenges his Count 2 conviction for violating 18 U.S.C.
§ 2251(d)(1)(A) and (2)(B), which provides:
(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
trial court, without objection, used the statutory language
to instruct 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.) 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
appeal, Caniff asserts only a single substantive argument,
contending 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 § 2251(d)(1)(A). We review that argument de
novo. See Dixon, 901 F.3d at 1335 (reviewing de novo
whether evidence was sufficient to support conviction);
see also United States v. Jim, 891 F.3d
1242, 1250-51 (11th Cir. 2018) (addressing statutory
construction de novo), petitions for cert. filed
(U.S. Jan. 10, 2019) (Nos. 18-891 and 18-895). We need not
decide whether a jury could find that Caniff's text
messages were "advertisements" because we conclude,
instead, that a reasonable jury could find that those text
messages were "notices" which § 2251(d)(1)
parties agree that, because the statute does not define
"notice," that term must be given its ordinary or
common, everyday meaning. This is consistent with the
approach taken by other circuits addressing similar questions
under § 2251(d)(1), see, e.g.,
United States v. Gries, 877 F.3d 255, 260 (7th Cir.
2017) petition for cert. filed (U.S. Jan. 7, 2019)
(No. 18-858); United States v. Franklin, 785 F.3d
1365, 1367-68 (10th Cir. 2015), as well as consistent with
the rules of statutory interpretation generally, see
Barton v. U.S. Attorney Gen., 904 F.3d 1294, 1298 (11th
Cir. 2018) (citing Sebelius v. Cloer, 569 U.S. 369,
376 (2013)), petition for cert. filed, - U.S. -
(U.S. Dec. 4, 2018) (No. 18-725).
Law Dictionary defines "notice" to include
"[a] written or printed announcement."
Notice, Black's Law Dictionary (10th ed. 2014);
see also Notice, Merriam-Webster Dictionary,
visited December 12, 2018). See generally Wisconsin Cent.
Ltd. v. United States, 138 S.Ct. 2067, 2070-71 (2018)
(looking to dictionary definition in determining ordinary
meaning of a statutory phrase). Dictionary.com indicates that
a "notice" can be "a note, placard, or the
like conveying information or a warning."
(lasted visited December 12, 2018). The Seventh Circuit noted
that Webster's Third New International Dictionary (ed.
2002), similarly defines "notice" to include
"a 'warning or intimation of something," as
does the New Oxford American Dictionary (3d ed. 2010), which
defines "notice," inter alia, "as a
'notification or warning of something.'"
Gries, 877 F.3d at 260 (7th Cir.). A jury could find
that Caniff's text messages to Mandy seeking sexually
explicit photos fit this common meaning of
disagree with Caniff's argument that a "notice"
must be sent to the general public or at least to a group of
people. The most common usage of the word "notice"
is not limited exclusively to a public or group component. A
notice can, of course, be made to the general public. Caniff
points to such an example of "notice" cited by the
Merriam-Webster Dictionary-newspaper notices of marriages and
deaths. But a public component is not, by definition,
required. The Tenth Circuit cited eighteen
definitions of "notice" taken from Webster's
New Third International Dictionary (1993), noting that none
of those definitions required a "public" component.
Franklin, 785 F.3d at 1368. Thus, "[i]n everyday
parlance," notice "is not limited to warnings or
notifications disseminated to the general public, and nothing
about the context in which [the term notice] is used here [in
§ 2251(d)] suggests a more limited meaning."
Gries, 877 F.3d at 260 (7th Cir.) (bracketed
are numerous examples where "notice" is given from
one individual or entity to another. For instance, a utility
company might send an individual customer "notice"
that the utility is going to turn off that specific
customer's service. Black's Law Dictionary uses the
example of a lease's requirement that a tenant give his
landlord thirty days' written "notice" before
vacating the leased premises. Notice,
Black's Law Dictionary (10th ed. 2014). An
employee might notify (or give notice to) his boss that the
employee will not be at work tomorrow. One might notify a
neighbor to get off the lawn or be sued for trespass, and a
parent can give notice to a child that if he does not turn
down his music, there will be consequences.
common uses of "notice" do not require the
involvement of the public or a group, and there is no
indication that Congress intended any different use of
"notice" in § 2251(d)(1). In fact, Congress
used extraordinarily broad language in this provision.
Congress did not include any adjective in § 2251(d)(1)
to limit "notice," and certainly did not add
"public" to modify "notice" -as one might
expect Congress to have done had it wished to exclude private
communications from the statute's coverage. Although this
case involves a form of communication that was not in
existence when the provision was written, private
person-to-person communications have existed as long as the
written word. And reading § 2251(d) to include text
messages within its reach fits precisely within the category
of statutory language that Justice Scalia has embraced as
"encompassingly broad language that comes to be applied
to technology unknown when the operative words took
effect." A. Scalia & B. Garner, Reading Law: The
Interpretation of Legal Texts 86-87 (2012).
instead of limiting the section's application to notice
provided to a group or to the public at large, Congress used
more expansive language, proscribing "any
notice." (Emphasis added.) See Gries, 877 F.3d
at 260 (7th Cir.) ("The phrase 'any notice or
advertisement' in § 2251(d) casts a wide net for
this offense."). As we have often had occasion to say,
when interpreting a statute "any" means
"all." Merritt v. Dillard Paper Co., 120 F.3d 1181,
1186 (11th Cir. 1997) ("[T]he adjective 'any' is
not ambiguous; it has a well-established meaning. . . .
Congress did not add any language limiting the breadth of
that word, so 'any' means all." (internal
quotation marks omitted)); see also Laperriere v. Vesta
Ins. Grp., Inc., 526 F.3d 715, 726 (11th Cir. 2008)
("[T]he term 'any' in a statute has a
'broad,' 'powerful,' and 'expansive'
meaning; it does not mean 'some' or 'all but a
few,' but instead means 'all.'") (internal
quotation marks omitted); CBS Inc. v. PrimeTime 24 Joint
Venture, 245 F.3d 1217, 1223 (11th Cir. 2001)
("[R]ead naturally, the word 'any' has an
expansive meaning, that is, 'one or some indiscriminately
of whatever kind.'") (internal quotation marks
omitted). The use of "any" directs us to interpret
"notice" as broadly as the word will bear.
Furthermore, § 2251(d)(1)'s language explicitly
focuses only on the defendant's conduct in making,
printing or publishing a "notice," and does not
address at all the audience receiving the notice.
does the phrase "make . . . notice" require a
public audience. Perhaps it's an awkward turn of phrase
that one wouldn't use in everyday parlance, but it cannot
be described as specifying any particular form of
communication. To the contrary, Black's Law Dictionary
defines "make" as "caus[ing] (something) to
exist <to make a record>." Black's Law
Dictionary (10th ed. 2014); see also Random House
College Dictionary (1982) ("to write or compose, as a
poem"). Thus, as the Supreme Court has said,
"[w]hen 'make' is paired with a noun expressing
the action of a verb, the resulting phrase is
'approximately equivalent in sense' to that
verb." Janus Capital Grp., Inc. v. First Derivative
Traders, 564 U.S. 135, 142 (2011). In other words,
"to make any notice" simply means "to
notify," and Congress did not constrain in any way how
the defendant could notify his recipient or recipients that
he was seeking child pornography. See id.
points out that Congress proscribed "any notice or
advertisement," and advertisement is commonly defined as
"public notice." We have no occasion here to
address what constitutes an "advertisement" for
purposes of § 2251(d)(1). But Caniff's
contention-that an "advertisement" is a
"public notice"-cuts against his position because
it implies that a simple notice without the adjective
"public" is still a notice, needing only the
addition of a public audience to be elevated to an
advertisement. If the common, ordinary use of
"notice" inherently requires a public
component, as Caniff argues, there would be no need ever to
modify notice with the adjective "public."
Furthermore, if both notice and advertisement mean
"public notice," then these two terms are largely
redundant, and we are reluctant to conclude that two separate
words in a statute are redundant. Cf. United States v.
Harrison, 357 F.3d 314, 315, 321-22 (3d Cir. 2004)
(rejecting, in the context of a prior version of U.S.S.G.
§ 2G2.2(b)(5), that "notice" requires a public
audience because "if the meaning of 'notice'
comprehended that it was 'public,' it would not be
necessary to modify the definition of 'announcement'
by designating it as a 'public' notice"),
vacated on other grounds, 543 U.S. 1102 (2005). We
conclude Congress must have, instead, meant that each of
those terms-"notice or advertisement"-had an
independent meaning. That is particularly true here because
Congress separated the terms notice and advertisement by the
word "or." See Loughrin v. United States,
573 U.S. 351, 357 (2014) (rejecting interpretation that
statute's two clauses, which were separated by
"or," meant the same thing; stating that the
"ordinary use" of "or" "is almost
always disjunctive, that is, the words it connects are to be
given separate meanings" (quoting United States v.
Woods, 571 U.S. 31, 45 (2013)).
these reasons, we reject Caniff's argument that
"notice" requires a public or group component.
Instead, "notice" can commonly and ordinarily
include one-on-one communications like the text messages at
applying similar language in the sentencing guidelines have
reached a like conclusion. U.S.S.G. § 2G2.2(c)(1), for
example, provides a cross-reference that essentially enhances
a defendant's offense level "[i]f the offense
involved causing, transporting, permitting, or offering or
seeking by notice or advertisement, a minor to
engage in sexually explicit conduct . . . for the purpose of
transmitting a live visual depiction of such conduct."
(Emphasis added.) Courts have held that for purposes of that
sentencing guideline, "notice" includes one-on-one
communications as emails and instant messaging. See
United States v. Long, 304 Fed.Appx. 982, 986 (3d Cir.
2008) (unpublished) (holding instant messaging qualified as
"notice" for purposes of § 2G2.2(c)'s
cross reference). Long relied on Harrison,
in which the Third Circuit held that a prior version of
U.S.S.G. § 2G2.2(b)(5), which enhanced an offense level
when "a computer was used for the transmission of . . .
a notice or advertisement of" child pornography, applied
to emails the defendant exchanged with an undercover police
officer. 357 F.3d at 315, 321-22.
conclusion-that "notice," for purposes of §
2251(d)(1), is broad enough to include individually directed
text messages like the ones at issue here- is bolstered by
the "comprehensive regulatory scheme" Congress
enacted to "criminaliz[e] the receipt, distribution,
sale, production, possession, solicitation and advertisement
of child pornography." United States v. Parton,
749 F.3d 1329, 1330 (11th Cir. 2014) (internal quotation
marks omitted) (addressing § 2251(a)). When Congress
enacted what is now § 2251(d) (which was originally
designated as § 2251(c), see United States v.
Pabon-Cruz, 391 F.3d 86, 88 n.2 (2d Cir. 2004)),
Congress noted that, "[o]f all of the crimes known to
our society, perhaps none is more revolting than the sexual
exploitation of children, particularly for the purposes of
producing child pornography." H.R. Rep. No. 99-910, 99th
Cong., 2d Sess. (1986). Congress's "clear statutory
purpose" was to "eradicat[e] the child- pornography
market." United States v. Peterson, No. CR
12-228-GW, 2015 WL 13657215, at *5 (C.D. Cal. Mar. 20, 2015)
(unreported); see also United States v. Christie,
570 F.Supp.2d 657, 665 (D. N.J. 2008) (recognizing
Congress's "primary intent" in enacting §
2251(d)(1) was "to eliminate the exchange of child
pornography"). "Congress surely did not intend to
limit [§ 2251(d)(1)'s] reach to pedophiles who
indiscriminately advertise through traditional modes of
communication like television or radio. Congress was trying
to capture all advertisements or notices targeting
individuals interested in obtaining or distributing child
pornography." Franklin, 785 F.3d at 1369-70
Congress, in 1986, probably did not imagine the prevalence
today of cell phones and the ease with which sexual predators
can reach out to individual children to obtain child
pornography, the language Congress used in § 2251(d)(1)
is broad enough to encompass such conduct. Furthermore, this
conduct goes to the heart of Congress's purpose in
enacting § 2251(d)(1), to dry up the child pornography
market. Once a predator is able to obtain such child
pornography texted to him, he can quickly and easily
disseminate it to countless others. Proscribing his doing so
serves Congress's purpose in enacting § 2251(d)(1).
the one-on-one electronic communications at issue here, a
sexual predator can more easily isolate and prey on a single
vulnerable child victim than if he sent a widely disseminated
notice to many potential victims. We cannot imagine that
Congress intended to leave such a loophole in its otherwise
comprehensive regulation of child pornography. Such a
loophole would leave the most vulnerable of the victims of
pedophilia unprotected against the most effective and hardest
to detect predatory conduct. That would make no sense at all
in a statute that was intended to have a broad and
comprehensive reach. See Gries, 877 F.3d at 260 (7th
these reasons, we conclude that Caniff's text messages to
thirteen-year-old Mandy asking her for sexually explicit
pictures of herself can support the jury finding that he made
"notices" that he desired to receive child
have been preferable for the district court here to have
provided the jury with a legal definition of
"notice." But Caniff did not object to the court
using just the statutory terms to instruct the jury, nor did
he object to the court's decision to respond to
jurors' inquiry during deliberations by indicating that
they should determine the definition of "notice."
Nor has Caniff argued on appeal that the district court made
any legal error in submitting this term to the jury for its
determination. That issue is, consequently, not presented to
us and we, thus, do not address it in this appeal.
conclude that, in light of the district court's
instructions given here, 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 "notices" made criminal under §
There was sufficient evidence for a jury to find that Caniff
believed Mandy was thirteen
next challenges each of his three 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.
"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) (citations, internal quotation ...