[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 20-13505 ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus PAUL EDWARD LEE, JR.,

Defendant-Appellant.

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Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 3:20-cr-00066-MMH-MCR-1 ____________________ USCA11 Case: 20-13505 Date Filed: 03/21/2022 Page: 2 of 19

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 At the time of Lee’s trial, United States v. Caniff (“Caniff I ”), 916 F.3d 929 (11th Cir. 2019), vacated and superseded on reconsideration, 955 F.3d 1183 (11th Cir. 2020), was controlling precedent in this Circuit.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.” USCA11 Case: 20-13505 Date Filed: 03/21/2022 Page: 3 of 19

20-13505 Opinion of the Court 3

On appeal, Lee asserts that the district court erred because “§ 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.,