United States v. Lee

29 F.4th 665

UNITED STATES of America, Plaintiff-Appellee,

v.Paul Edward LEE, Jr., Defendant-Appellant.

No. 20-13505

United States Court of Appeals, Eleventh Circuit.

Filed: March 21, 2022

Holly Lynn Gershow, U.S. Attorney's Office, Tampa, FL, U.S. Attorney Service - Middle District of Florida, U.S. Attorney's Office, Tampa, FL, for Plaintiff-Appellee

Lisa Call, Federal Public Defender's Office, Jacksonville, FL, Melissa Fussell, Assistant Federal Public Defender, Conrad Benjamin Kahn, James T. Skuthan, Federal Public Defender's Office, Orlando, FL, Rosemary Cakmis, Law Office of Rosemary Cakmis, Orlando, FL

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 At the time of Lee's trial, United States v. Caniff ("Caniff I "), 916 F.3d 929 (11th Cir. 2019), vacated and superseded on reconsideration , 955 F.3d 1183 (11th Cir. 2020), was controlling precedent in this Circuit.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 pornography" 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 government could not charge Lee under § 2251(a) after Lee had been acquitted for the § 2251(d)(1) charge, under the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution. The district court denied Lee's motion because, even though Lee was "being tried for the same conduct," he was "not being tried for the same offense."

On appeal, Lee asserts that the district court erred because " § 2251(d) does not require proof of any fact beyond what is required 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 tutor 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 Beccaccio 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 cellphone number at issue. Agent Beccaccio, acting as an FBI online covert employee, pretended to be A.L. and began exchanging messages 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.

A. 2018 Indictment & Trial

The government filed a criminal complaint against Lee for "[s]olicitation and advertisement for child pornography" in violation 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 advertisement" 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 notice ... 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 renewed his motion for acquittal. The government did not oppose Lee's motion, and the district court granted Lee's motion for acquittal and set aside the jury's guilty verdict.

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 Indictment—the government filed a new criminal complaint against Lee. According to the new criminal complaint, Lee attempted to "employ, 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 violation of 18 U.S.C. § 2251(a). On May 20, 2020, a grand jury charged Lee with attempting to violate § 2251(a) (the "2020 Indictment").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 indictments.

The district court denied Lee's motion to dismiss the indictment. 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 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 motion 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 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 Jeopardy 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 offense." 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 analysis 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 separate 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 , ––– U.S. ––––, 142 S. Ct. 283, 211 L.Ed.2d 132 (2021). "If congressional intent is unclear, we apply the Supreme Court's test set forth in Blockburger v. United States , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)." Id. at 940.

Because neither Lee nor the government "identifies anything ... that speaks to Congress's intent to authorize separate" 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, 52 S.Ct. 180 )).

"[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, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981) (quoting Iannelli v. United States , 420 U.S. 770, 785 n.17, 95 S.Ct. 1284, 43 L.Ed.2d 616 (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, 95 S.Ct. 1284 ).

This "strictly elemental analysis applies even where we are presented with" two offenses "based on the same factual" allegations. Hassoun , 476 F.3d at 1186. As we...