11th Circuit: Text message not “notice or advertisement” for CP
The 11th Circuit Court of Appeals (the appellate court for Florida, Georgia and Alabama federal courts) found that private text messages cannot support a conviction for a violation of 18 U.S.C. § 2251(d)(1).
That section provides that it is a crime to knowingly make, print, publish or cause to be made, printed, or published, any notice or advertisement seeking or offering (1) 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; or (B) participation in any act of sexually explicit conduct by or with any minor for the purpose of producing a visual depiction of such conduct.
Matthew Caniff, was charged with that crime (along with two others) after engaging with a law enforcement officer that reached out to him through the online app Whisper. As is the pattern in most stings, the chat turned sexual and images were exchanged. Caniff was indicted and convicted at trial for three offenses, one of which was making, printing or publishing a “notice or advertisement” seeking the illegal images.
The appellate court reversed the conviction on that count (affirming the others) and found that a private text exchange does not constitute making, printing or publishing a notice or advertisement.
The case can be found here: http://media.ca11.uscourts.gov/opinions/pub/files/201712410.op2.pdf
What benefit does the prosecution get out of trying to dream up some frivolous charge that has no merit. The only thing I can imagine is to try to scare the defendant into plea bargaining a deal. Which is there normal underhanded scum bag way of procedure. Judges need to have some way of punishing prosecution when they do that.
I have been reading from various sources that this country is slowly turning into a police state. They might be right.
@Sarah, that ship has sailed. We have been living in a police state since the so-called “Patriot Act” was made law in 2001. Politicians have taken our freedoms away under the guise of providing for our “security.”
What more proof does anyone need than the losses of freedom of assembly and practice religion (First Amendment) under this Plandemic? Government oaficials at all levels are making their own laws and enforcing them.
This taking of freedoms will become standard practice and continue to be used in the next “crisis.”
Prosecutors operate with virtual impunity to reprimands and literal immunity from lawsuits. As in any competitive hierarchy heir career trajectories depend on having better numbers than their peers. Most, e.g. >97% in the federal system, criminal cases are concluded through plea bargains. Judges are precluded from involvement in the “bargaining” process, so they don’t see the details of how the sausage is made.
Judges certainly know how things work but choose to ignore it to keep the machine humming. Budgets and “judicial efficiency” trump due process.
@ David:
That’s part of it, but the main reason is to fluff their resumes with more felony convictions and years sentenced. They want their resumes to say something like “Convicted 50,000 felonies that were sentenced to 3.5 million years.”
That 45 of those 50 thousand felonies were stacked onto the remaining 5,000 events and 3.1 of those 3.5 million years are concurrent makes it considerably less impressive.
And unfortunately, most judges (particularly the elected ones) apparently think the same way.
Despite this ruling, prosecutors will continue to add as many charges as they can. It is commonplace in Massachusetts for the accused to always be charged with an additional charge of possession of a deadly weapon since a cell phone could be used as a deadly weapon. A man named Patrick locked up in Worchester, MA in 2016 was charged with possession of a picture of a topless teenager and tried to use as evidence that the picture was no different than the images of Brook Shields in a 1970s film. He printed the image from the film on his computer to take to court and was given another CP charge. Prosecutors argued that the image was art when it was part of the movie but pornography when he printed the image.
And this case illustrates WHY prosecutors add as many charges as they can— a successful appeal of the “advertising notice” conviction had no effect at all on the appellant’s sentence or obligation to register.
To my knowledge, in fact, “advertising” this type of material has always been an add-on (often throwaway) charge.