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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13505
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAUL EDWARD LEE, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:20-cr-00066-MMH-MCR-1
____________________
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2 Opinion of the Court 20-13505
Before LAGOA, BRASHER, and TJOFLAT, Circuit Judges.
LAGOA, Circuit Judge:
In 2018, Paul Edward Lee, Jr., was charged with violating 18
U.S.C. § 2251(d)(1). Lee’s § 2251(d)(1) charge proceeded to trial,
and a jury found Lee guilty. At the time of Lee’s trial, United States
v. Caniff (“Caniff I ”), 916 F.3d 929 (11th Cir. 2019), vacated and
superseded on reconsideration, 955 F.3d 1183 (11th Cir. 2020), was
controlling precedent in this Circuit. Under Caniff I, “one-on-one
communications like . . . text messages” could “support [a] jury
finding that [the defendant] made ‘notices’ . . . to receive child por-
nography” in violation of § 2251(d)(1). Id. at 935–37. But, after Lee
was convicted, this Court vacated Caniff I and held that
§ 2251(d)(1) “does not apply to a private text message sent from
one individual to another.” United States v. Caniff (“Caniff II ”),
955 F.3d 1183, 1191–92 (11th Cir. 2020). Based on Caniff II, Lee
successfully moved for a judgment of acquittal.
Concurrent with Lee’s acquittal, the government charged
Lee with attempting to violate 18 U.S.C. § 2251(a). The § 2251(a)
charge was predicated on the same conduct as the § 2251(d) charge.
Lee moved to dismiss the new charge and argued that the govern-
ment could not charge Lee under § 2251(a) after Lee had been ac-
quitted for the § 2251(d)(1) charge, under the Double Jeopardy
Clause of the Fifth Amendment to the U.S. Constitution. The dis-
trict court denied Lee’s motion because, even though Lee was “be-
ing tried for the same conduct,” he was “not being tried for the
same offense.”
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20-13505 Opinion of the Court 3
On appeal, Lee asserts that the district court erred because
Ҥ 2251(d) does not require proof of any fact beyond what is re-
quired for a § 2251(a) conviction.” After careful review, and with
the benefit of oral argument, we affirm the district court’s order
because § 2251(a) and § 2251(d) each require proof of an additional
fact that the other offense does not.
I. FACTUAL AND PROCEDURAL BACKGROUND
A minor, “A.L.,” attended a tutoring session and told her tu-
tor that she had a thirty-eight-year-old “special friend.” The tutor
contacted A.L.’s father, and A.L. allegedly told her father that her
“special friend” communicated with her via text message, as well
as through the messaging features of two mobile applications, and
requested sexually explicit images. The cellphone number that the
“special friend” used to communicate with A.L. allegedly belonged
to Lee.
An investigation ensued, and Special Agent Abbigail Beccac-
cio of the Federal Bureau of Investigation (“FBI”) received A.L’s
cellphone during the investigation. While in possession of A.L.’s
cellphone, Agent Beccaccio received a text message from the cell-
phone number at issue. Agent Beccaccio, acting as an FBI online
covert employee, pretended to be A.L. and began exchanging mes-
sages with that number. In so doing, Agent Beccaccio was asked
to send sexually explicit depictions of A.L., including a video of A.L.
masturbating.
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4 Opinion of the Court 20-13505
A. 2018 Indictment & Trial
The government filed a criminal complaint against Lee for
“[s]olicitation and advertisement for child pornography” in viola-
tion of 18 U.S.C. § 2251(d). And a grand jury charged Lee with one
count of violating § 2251(d) (the “2018 Indictment”). According to
the 2018 Indictment, Lee knowingly violated § 2251(d) by using a
cellphone to make, print, and publish “notices seeking and offering
to receive visual depictions . . . of a person whom [he] believed to
be a minor engaging in sexually explicit conduct.”
Lee’s § 2251(d) charge was tried before a jury in March 2020.
At trial, the government asserted that Lee made notices to receive
child pornography via private cellphone messages. At the end of
the government’s case, Lee moved for acquittal and argued that
sending private messages could not satisfy the “notice or advertise-
ment” element of § 2251(d)(1). Relying on this Court’s decision in
Caniff I, the district court denied Lee’s motion.
The jury found Lee guilty of violating § 2251(d). About a
month later, this Court vacated Caniff I in Caniff II, holding that §
2251(d)(1)’s “prohibition against ‘knowingly mak[ing] . . . any no-
tice . . . seeking or offering [child pornography]’—does not apply to
a private text message sent from one individual to another.” Caniff
II, 955 F.3d at 1192 (quoting § 2251(d)(1)). The next day, Lee re-
newed his motion for acquittal. The government did not oppose
Lee’s motion, and the district court granted Lee’s motion for ac-
quittal and set aside the jury’s guilty verdict.
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20-13505 Opinion of the Court 5
B. 2020 Indictment
On May 7, 2020—seven days before the district court set
aside the jury’s guilty verdict in connection with the 2018 Indict-
ment—the government filed a new criminal complaint against Lee.
According to the new criminal complaint, Lee attempted to “em-
ploy, use, persuade, induce, entice and coerce a person whom [he]
believed to be a minor to engage in . . . sexually explicit conduct for
the purpose of producing visual depictions of such conduct” in vi-
olation of 18 U.S.C. § 2251(a). On May 20, 2020, a grand jury
charged Lee with attempting to violate § 2251(a) (the “2020 Indict-
ment”).1
Lee moved to dismiss the 2020 Indictment on several
grounds including, as relevant to this appeal, that the § 2251(a)
charge violated his rights under the Double Jeopardy Clause. Lee
argued that the ‘“offense’ charged in the 2020 indictment [was] the
same transgression of law as the 2018 indictment,” as evidenced by
the similarities between the allegations in support of both indict-
ments.
The district court denied Lee’s motion to dismiss the indict-
ment. The district court found that “although [Lee] is being tried
for the same conduct charged in the 2018 Indictment, [he] is not
being tried for the same offense.” For example, the district court
1Lee was also charged with one count of violating 18 U.S.C. §§ 2422(b) and
2427. But the government moved to dismiss that count, and the district court
granted the government’s motion.
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6 Opinion of the Court 20-13505
explained that the two offenses are not the same because § 2251(a)
“does not require that a defendant knowingly made, printed, or
published, or caused to be made, printed or published, any notice.”
On September 14, 2020, Lee filed a notice of interlocutory
appeal. This appeal followed.
II. STANDARD OF REVIEW
We review de novo the district court’s denial of Lee’s mo-
tion to dismiss the 2020 Indictment on double jeopardy grounds.
United States v. Mayes, 158 F.3d 1215, 1219 (11th Cir. 1998); United
States v. Davis, 854 F.3d 1276, 1286 (11th Cir. 2017) (“We review .
. . double jeopardy arguments de novo.”).2
III. ANALYSIS
Lee asserts that the successive charges in the 2018 and 2020
Indictments violate the Fifth Amendment’s Double Jeopardy
2 The government asserts that we should review Lee’s arguments for plain er-
ror because, within Lee’s motion to dismiss the 2020 Indictment, Lee stated
that the indictments “may technically pass the Blockburger [v. United States,
284 U.S. 299 (1932),] separate elements” test. But the rest of Lee’s motion to
dismiss made it clear that Lee was asserting that the § 2251(a) charge violated
the Double Jeopardy Clause because he was being charged for the same of-
fense. Moreover, Lee “cannot waive the application of the correct law or stip-
ulate to an incorrect legal test.” Jefferson v. Sewon Am., Inc., 891 F.3d 911,
923 (11th Cir. 2018). And the Blockburger test is the correct legal test for Lee’s
double jeopardy argument. Rutledge v. United States, 517 U.S. 292, 297 (1996)
(“For over half a century we have determined whether a defendant has been
punished twice for the ‘same offense’ by applying the rule set forth in Block-
burger v. United States.”).
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20-13505 Opinion of the Court 7
Clause. Under the Fifth Amendment’s Double Jeopardy Clause, no
person shall “be subject for the same offence to be twice put in
jeopardy of life or limb.” U.S. Const. amend. V. The Double Jeop-
ardy Clause thereby “guarantees against a second prosecution for
the same offense after acquittal, a second prosecution for the same
offense after conviction, and multiple punishments for the same of-
fense.” United States v. Bobb, 577 F.3d 1366, 1371 (11th Cir. 2009).
On appeal, we must determine whether the 2020 Indictment
amounts to a second prosecution for the same offense. Our analy-
sis is divided into three parts. First, we discuss the applicable test
for Lee’s double jeopardy claim. Then, we identify the relevant
statutory elements for § 2251(a) and § 2251(d) offenses. Finally, we
discuss whether each offense requires proof of a fact that the other
does not.
A. Double Jeopardy
“Where the same conduct violates two statutory provisions,
the first step in the double jeopardy analysis is to determine
whether the legislature . . . intended that each violation be a sepa-
rate offense.” United States v. Cannon, 987 F.3d 924, 939–40 (11th
Cir. 2021) (quoting Davis, 854 F.3d at 1286), cert. denied sub nom.,
Holton v. United States, 142 S. Ct. 283 (2021). “If congressional
intent is unclear, we apply the Supreme Court’s test set forth in
Blockburger v. United States, 284 U.S. 299 (1932).” Id. at 940.
Because neither Lee nor the government “identifies any-
thing . . . that speaks to Congress’s intent to authorize separate”
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8 Opinion of the Court 20-13505
punishments for 18 U.S.C. §§ 2251(a) and 2251(d), our analysis will
proceed to the Blockburger test. Id. Under Blockburger, ‘“where
the same act or transaction constitutes a violation of two distinct
statutory provisions,’ cumulative punishment may not be imposed
unless ‘each provision requires proof of an additional fact which
the other does not.’” United States v. Hassoun, 476 F.3d 1181, 1185
(11th Cir. 2007) (quoting Blockburger, 284 U.S. at 304)).
“[T]he Blockburger test ‘is one of statutory interpretation.’”
Davis, 854 F.3d at 1286 (quoting United States v. Williams, 527 F.3d
1235, 1240 (11th Cir. 2008)). It “focuses on the statutory elements
of the offense.” Albernaz v. United States, 450 U.S. 333, 338 (1981)
(quoting Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975)). “If
each [offense] requires proof of a fact that the other does not, the
Blockburger test is satisfied, notwithstanding a substantial overlap
in the proof offered to establish the crimes.” Id. (quoting Iannelli,
420 U.S. at 785 n.17).
This “strictly elemental analysis applies even where we are
presented with” two offenses “based on the same factual” allega-
tions. Hassoun, 476 F.3d at 1186. As we explained in Hassoun:
double jeopardy is not implicated simply because a
factual situation might exist where a defendant could
commit one act that satisfies the elements of two dis-
tinct offenses. As Blockburger counsels, the rub is
whether Congress intended that one act be twice sub-
ject to punishment. As such, the question we must
ask is whether the defendant’s one act must neces-
sarily satisfy the elements of both offenses. In other
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20-13505 Opinion of the Court 9
words, does a scenario exist where the hypothetical
defendant might violate one section without violat-
ing the other?
Id. at 1188–89.
Lee argues that the 2018 Indictment’s § 2251(d) charge “does
not require proof of any fact beyond what is required for” the 2020
Indictment’s § 2251(a) charge. Because the Blockburger test is a
rule of statutory construction that focuses on the statutory ele-
ments for each offense, we must identify the statutory elements for
the § 2251(a) and § 2251(d) offenses Lee was charged with before
determining whether each offense requires proof of a fact that the
other does not. See Albernaz, 450 U.S. at 338; Davis, 854 F.3d at
1286.
B. Statutory Elements for § 2251(a) & § 2251(d) Offenses
Sections 2251(a) and 2251(d) are separate provisions of the
Sexual Exploitation of Children statute. Section 2251(a) is the pro-
vision associated with the production of child pornography. See
United States v. Ruggiero, 791 F.3d 1281, 1284 (11th Cir. 2015)
(“Section 2251(a) is the ‘production’ section of a broad regulatory
scheme that prohibits the production, receipt, distribution, and
possession of child pornography.”). And § 2251(d) is the provision
associated with soliciting, or advertising for, child pornography.
See United States v. Wayerski, 624 F.3d 1342, 1348 (11th Cir. 2010)
(describing § 2251(d)(1) as a prohibition “concerning the advertise-
ment of child pornography”). On appeal, we must determine
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10 Opinion of the Court 20-13505
whether these two sections of the Sexual Exploitation of Children
Statute are separate offenses. 3
1. 18 U.S.C. § 2251(a)
As relevant to the 2020 Indictment, the statutory elements
for a § 2251(a) offense are: (1) employing, using, persuading, induc-
ing, enticing, or coercing a minor to engage in any sexually explicit
conduct to produce any visual depiction of such conduct (or for
transmitting a live visual depiction of such conduct); and (2) a ju-
risdictional nexus—i.e., a nexus to interstate commerce.4 § 2251(a);
see United States v. Terrell, 700 F.3d 755, 758–59 (5th Cir. 2012).
3 While Lee claims that both indictments charged him under “the same sexual
exploitation of children statute,” the government correctly asserts that the two
indictments charged Lee with violating different sections of 18 U.S.C. § 2251.
And this Court has consistently applied the Blockburger test to charges
brought under different sections of the same statute. See, e.g., United States
v. Flanders, 752 F.3d 1317, 1338 (11th Cir. 2014) (“A plain reading of
§ 1591(a)(1) and (a)(2) demonstrates that the two subsections meet the Block-
burger test of whether separate convictions are authorized.”); United States
v. Luis-Gonzalez, 719 F.2d 1539, 1546 (11th Cir. 1983) (“Subsections (a)
through (d) of section 955a charge separate offenses which require proof of
different facts.”).
4A defendant can also violate § 2251(a) by having “a minor assist any other
person to engage in” sexually explicit conduct or transporting “any minor in
or affecting interstate or foreign commence . . . with the intent that such minor
engage in[] sexually explicit conduct.” The potential nexuses to interstate
commerce under § 2251(a) are:
[(1)] if such person knows or has reason to know that such vis-
ual depiction will be transported or transmitted using any
means or facility of interstate or foreign commerce or in or
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20-13505 Opinion of the Court 11
“On its face and as applied in this case, § 2251(a) re-
quires only that a defendant arrange for a minor to engage in sex-
ually explicit conduct for the purpose of creating a visual depiction,
and that there be some nexus to interstate or foreign commerce.”
Ruggiero, 791 F.3d at 1284–85. In other words, and as our sister
courts have held, § 2251(a) applies to a broad “range of ways that a
defendant might actively be involved in the production of sexually
explicit depictions of minors.” Ortiz-Graulau v. United States, 756
F.3d 12, 19 (1st Cir. 2014). For example, the Eighth Circuit rejected
an argument that a defendant did not violate § 2251(a) by “only
film[ing] the minors and . . . not initiat[ing] or solicit[ing] their sex-
ual conduct” because the actus reus component of § 2251(a) was
“fully satisfied for the purposes of the child pornography statute”
by using a child “to create pornography.” United States v. Fadl, 498
F.3d 862, 866 (8th Cir. 2007) (quoting United States v. Sirois, 87 F.3d
34, 41 (2d Cir. 1996)).
affecting interstate or foreign commerce or mailed, [(2)] if that
visual depiction was produced or transmitted using materials
that have been mailed, shipped, or transported in or affecting
interstate or foreign commerce by any means, including by
computer, or [(3)] if such visual depiction has actually been
transported or transmitted using any means or facility of inter-
state or foreign commerce or in or affecting interstate or for-
eign commerce or mailed.
According to the 2020 Indictment, Lee used a facility of interstate commerce
by communicating via cellphone.
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12 Opinion of the Court 20-13505
But § 2251(a) limits criminal liability to conduct “for the pur-
pose of producing any visual depiction of such conduct.” Tilton v.
Playboy Ent. Grp., Inc., 554 F.3d 1371, 1377 (11th Cir. 2009) (em-
phasis in original). “This mens rea requirement” requires proof
that the defendant “desire[d] that a particular result [would] oc-
cur”—i.e., that a minor would engage in (or that a minor would
assist another person to engage in) sexually explicit conduct “for
the purpose of producing” a visual depiction of the conduct.5 Id.
2. 18 U.S.C. § 2251(d)
As relevant to the 2018 Indictment, the statutory elements
for a § 2251(d) offense are: (1) knowingly making, printing, or pub-
lishing, or causing to be made, printed, or published any notice or
advertisement that seeks or offers to receive, exchange, buy, pro-
duce, display, distribute, or reproduce any visual depiction if the
production of such visual depiction involves the use of a minor en-
gaging in sexually explicit conduct and such visual depiction is of
such conduct; and (2) a jurisdictional nexus—i.e., a nexus to inter-
state commerce. 6 § 2251(d)(1)(A), (2)(B).
5But “[i]t is settled that § 2251(a) does not require proof that the defendant
knew the victim was a minor.” Ruggiero, 791 F.3d at 1286.
6 Section 2251(d)(2) identifies two potential nexuses to interstate commerce:
(A) such person knows or has reason to know that such notice
or advertisement will be transported using any means or facil-
ity of interstate or foreign commerce or in or affecting inter-
state or foreign commerce by any means including by com-
puter or mailed; or (B) such notice or advertisement is
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20-13505 Opinion of the Court 13
The actus reus component of § 2251(d) is “the act of know-
ingly publishing [, making, or posting] ‘any notice or advertise-
ment’ to ‘receive, exchange, buy, produce, display, distribute, or
reproduce’ child pornography.” United States v. Gries, 877 F.3d
255, 260 (7th Cir. 2017) (quoting § 2251(d)(1)(A)). In Caniff I, a di-
vided panel of this Court held that the term ‘“notice,’ for purposes
of § 2251(d)(1), is broad enough to include individually directed
text messages.” 916 F.3d at 936. But Caniff I was vacated by this
Court’s decision in Caniff II. 955 F.3d at 1185.
In Caniff II, this Court raised “serious doubts about whether
the phrase ‘make[] . . . any notice’ in § 2251(d)(1) is broad enough
to cover . . . private, person-to-person text messages.” Id. at 1191–
92. And applying the rule of lenity, this Court held that “private,
person-to-person text messages” do not constitute “‘notice[s]’
‘ma[de]’ within the meaning of 18 U.S.C. §2251(d)(1).” Id. at 1191–
93. Therefore, under Caniff II, the actus reus element for §2251(d)
is not satisfied by “a private text message from one individual to
another” alone.7 Id. at 1192.
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.
According to the 2018 Indictment, Lee used a facility of interstate commerce
by communicating via cellphone.
7 Leeclaims that Caniff II did not interpret the notice element of § 2251(d) be-
cause the defendant in United States v. Orr, 819 F. App’x 756, 767 (11th Cir.
2020)—an unpublished case decided around the same time as Caniff II—also
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14 Opinion of the Court 20-13505
C. Sections 2251(a) and 2251(d) Are Not the Same Offense
Having identified the statutory elements of the offenses, we
must proceed to discerning “[i]f each [offense] requires proof of a
fact that the other does not.” Albernaz, 450 U.S. at 338 (quoting
Iannelli, 420 U.S. at 785 n.17). Lee asserts that “proof of persuasion
or enticement under [§ 2251(a)] necessarily shows the making of a
notice under [§ 2251(d)].” In so doing, Lee further argues that be-
cause he was tried for violating § 2251(d) when Caniff I was con-
trolling precedent, the government cannot rely on Caniff II to dis-
tinguish § 2251(a) and § 2251(d). Lee’s arguments fail for two rea-
sons.
First, despite the Caniff decisions, § 2251(a) and § 2251(d)
have always required “proof of an additional fact which the other
d[id] not.” Hassoun, 476 F.3d at 1185 (quoting Blockburger, 284
U.S. at 304)). As previously explained in Section III.B(1), the actus
reus element of § 2251(a) is broad. A defendant can violate
sent private messages and his conviction was upheld on appeal. The facts of
Orr are distinguishable, including because the defendant sent messages to
more than one person and because he failed to discuss “any challenge to the §
2251(d)(1)(A), (2)(B) convictions” in his briefing and therefore “arguably
waived any challenges.” Id. at 759–61, 767. Additionally, Orr is an un-
published opinion and is thus not considered binding precedent. See 11th Cir.
R. 36-2. In contrast, Caniff II is a published opinion and is therefore “binding
on all subsequent panels unless and until it is overruled or undermined to the
point of abrogation by the Supreme Court or by this court sitting en banc.’”
In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015) (quoting United States v.
Archer, 531 F.3d 1347, 1352 (11th Cir. 2008)).
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20-13505 Opinion of the Court 15
§ 2251(a) through various means—i.e., by “employ[ing], us[ing],
persuad[ing], induc[ing], entic[ing], or coerc[ing] any minor.”
§ 2251(a).
In contrast, the actus reus element of § 2251(d) is limited to
“mak[ing], print[ing], or publish[ing], or caus[ing] to be made,
printed or published, any notice or advertisement.” § 2251(d).
Therefore, § 2251(d) requires proof that a defendant “made,
printed or published any notice or advertisement,” whereas
§ 2251(a) does not.
Because § 2251(d) requires proof of an element that § 2251(a)
does not, it follows that § 2251(a) applies to conduct that § 2251(d)
would not apply to. For example, a defendant can violate § 2251(a)
by physically coercing a minor to engage in sexually explicit con-
duct to produce a visual depiction of said conduct. See, e.g., United
States v. Champion, 248 F.3d 502, 505 (6th Cir. 2001) (“[C]oercion
involving physical force is sufficient, but not necessary, to establish
a violation of § 2251(a).”); Ortiz-Graulau, 756 F.3d at 19 (1st Cir.
2014) (“Some of the[] acts [that violate § 2251(a)] may involve de-
ception, violence, or otherwise be an independently unlawful act,
but they need not be so long as the acts are done with the intent of
making a visual depiction of a minor engaging in sexually explicit
conduct.”). Physical coercion alone is insufficient, however, to
convict a defendant for violating § 2251(d) because § 2251(d) re-
quires proof of the additional fact that the defendant made, pub-
lished, or printed some form of “notice or advertisement.”
§ 2251(d)(1). In other words, one act does not “necessarily satisfy
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16 Opinion of the Court 20-13505
the elements of both offenses,” and a “hypothetical defendant
might violate one section without violating the other.” See Has-
soun, 476 F.3d at 1188–89.
A defendant can also violate § 2251(d) without violating
§ 2251(a). “[A]s applied in this case, § 2251(a) requires . . . that a de-
fendant arrange for a minor to engage in sexually explicit conduct
for the purpose of creating a visual depiction.” Ruggiero, 791 F.3d
at 1284–85; see also United States v. Lee, 603 F.3d 904, 918 (11th
Cir. 2010) (explaining that, to support a conviction for attempted
production of child pornography under § 2251(a), the government
must prove “that [defendant] intentionally attempted to use [the
minors] to produce child pornography”); United States v. Miller,
819 F.3d 1314, 1316 (11th Cir. 2016) (explaining that “[t]he govern-
ment was not required to prove that making explicit photographs
was Miller’s sole or primary purpose for enticing the minor to en-
gage in sexually explicit conduct” because it was “enough” for the
government “to show that it was ‘a purpose’ for doing so”).
Section 2251(d) is not so limited. For example, a defendant
can violate § 2251(d) by posting a notice that he is seeking to ex-
change pornographic images of a minor—i.e., a defendant can vio-
late § 2251(d) without proving that the defendant arranged for a
minor (or that a defendant had a minor assist any other person) to
engage in sexually explicit conduct for the purpose of producing a
visual depiction of that conduct. Compare Gries, 877 F.3d at 257,
260 (upholding convictions for § 2251(d)(1)(A) because the defend-
ants were members of a group that “facilitate[d] the exchange of
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20-13505 Opinion of the Court 17
massive personal libraries of child pornography”), with Tilton, 554
F.3d at 1377 (noting that § 2251(a) requires “evidence that [the de-
fendant] induced [a minor] to engage in sexually explicit conduct
for the purpose of producing any visual depiction of that conduct”).
Second, in Caniff II, we identified another distinction be-
tween § 2251(a) and § 2251(d)—a “private text message sent from
one individual to another” cannot constitute a violation of
§ 2251(d), but it can constitute a violation of § 2251(a). 955 F.3d at
1185–86, 1191–93, 1196 (reversing defendant’s conviction under
§ 2251(d) but affirming conviction under § 2251(a) in connection
with private text messages asking for sexually explicit images of a
minor). “Relying on the rule of lenity,” Caniff II vacated and su-
perseded the panel’s prior interpretation of the term “notice”
within § 2251(d). Id. at 1185, 1193. “When a court corrects a wrong
interpretation of a statute, ‘it is not accurate to say that [the deci-
sion] “changed” the law,’” Aspilaire v. U.S. Att’y Gen., 992 F.3d
1248, 1256 (11th Cir. 2021) (second alteration in original) (quoting
Rivers v. Roadway Express, Inc., 511 U.S. 298, 313 n.12 (1994)),
cert. denied sub nom., Aspilaire v. Garland, 142 S. Ct. 765 (2022).
Instead, “[a] judicial construction of a statute is an authoritative
statement of what the statute meant before as well as after the de-
cision of the case giving rise to that construction.” Id. (alteration
in original) (quoting Rivers, 511 U.S. at 312–13).
Contrary to Lee’s assertion, the rule of lenity is a “traditional
tool[]” for construing the meaning of a criminal statute. Romero
v. Sec’y, U.S. Dep’t of Homeland Sec., 20 F.4th 1374, 1383 (11th
USCA11 Case: 20-13505 Date Filed: 03/21/2022 Page: 18 of 19
18 Opinion of the Court 20-13505
Cir. 2021) (“The rule of lenity is one of the oldest and most tradi-
tional tools of statutory interpretation. . . . [It] mandates that penal
statutes be construed strictly.”). Consequently, the determination
in Caniff II that § 2251(d) does not apply to “private text message[s]
sent from one individual to another” based on the rule of lenity was
an authoritative statement of what § 2251(d) has always meant. 955
F.3d at 1192. In fact, the district court acquitted Lee of the § 2251(d)
charge because, based on our interpretation of that section in
Caniff II, Lee’s conduct did not violate § 2251(d).
Here, the Blockburger test is satisfied, and Lee’s double jeop-
ardy claim fails, because “each [offense] requires proof of a fact that
the other does not.” Albernaz, 450 U.S. at 338 (quoting Iannelli,
420 U.S. at 785 n.17); cf. United States v. Overton, 573 F.3d 679, 692
(9th Cir. 2009) (“Because each statutory provision requires proof of
an additional fact the other does not, violations of § 2251(a) and (b)
of Title 18 are not the same offense under Blockburger.”). Section
2251(d) requires proof that a defendant “made, printed or pub-
lished any notice or advertisement”—and, under Caniff II, private
text messages sent from one individual to another cannot prove
this element—whereas § 2251(a) does not. And, as relevant here,
§ 2251(a) requires proof that the defendant arranged for a minor to
engage in sexually explicit conduct for the purpose of creating a
visual depiction of that conduct, whereas § 2251(d) does not.
Moreover, as discussed above, “scenario[s] exist where the hypo-
thetical defendant might violate one section without violating the
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20-13505 Opinion of the Court 19
other.” Hassoun, 476 F.3d at 1189. Indeed, as alleged in the 2020
Indictment, this case presents such a scenario.
IV. CONCLUSION
For the reasons stated, we conclude that the district court
did not err in denying Lee’s motion to dismiss the 2020 Indictment
on double jeopardy grounds and therefore affirm the district court.
AFFIRMED.