In United States v. Lee, 20-13505 (Mar. 21, 2022) (Lagoa, Brasher, Tjoflat), the Court affirmed the defendant’s conviction under 18 U.S.C. 2251(a) over a double jeopardy challenge.

The defendant sent text messages to a minor requesting sexually explicit images.  The defendant was originally charged with violating 2251(d), and a jury convicted him.  Shortly thereafter, however, the Eleventh Circuit in Caniff clarified that such conduct does not violate 2251(d), and the district court granted a judgment of acquittal.  Based on the same conduct, the government brought a new indictment, charging the defendant with violating 2251(a), and the defendant moved to dismiss on double jeopardy grounds.  The Eleventh Circuit held that the district court correctly denied the motion because 2251(a) and 2251(d) are distinct offenses with different elements.  2251(d) requires proof that the defendant made a notice or advertisement involving a sexually explicit depiction of a minor, whereas 2251(a) requires proof that the defendant arranged for a minor to engage in sexually explicit conduct for the purpose of creating a depiction of that conduct.  Because there were scenarios where a defendant could violate 2251(d) but not 2251(a), and vice versa, they were not the same offense for double jeopardy purposes.