by: Don Samuel
What better justification could there be for the application of the Rule of Lenity than the circumstances in United States v. Caniff. In February of 2019, three Judges on the Eleventh Circuit had to decide whether 18 U.S.C. § 2251(d)(1)(A), which makes it a crime for any person to “make a notice to receive [child pornography]” applies to a person who, in a private person-to-person text message, asks a young girl to send him nude pictures of herself. Does that request, in a private text, qualify as “making a notice” to receive child pornography? In that February decision, 916 F.3d 929 (11th Cir. 2019), two out of three judges, reviewing various dictionary definitions of “notice” and “make,” decided that the defendant’s conduct did constitute “making a notice.” One judge dissented. Yesterday, the same three Judges thought about the same question some more and, once again citing various dictionary definitions of “notice” and “make,” all three Judges decided that the defendant’s conduct did not qualify as “making a notice.” United States v. Caniff, --- F.3d --- (11th Cir. April 8, 2020).
This is the paradigm for the application of the Rule of Lenity: a distinguished Judge votes one way on the first day, and the other way on the second day. And not just one Judge changed his mind, but two distinguished Judges changed their minds about the interpretation of the statute. Obviously, reasonable judges could differ about the interpretation of the statute: these two judges both disagreed with their own interpretation from a year earlier.