U.S. v. Hitt

• Decision Date: 13 December 2006
• Docket Number: No. 05-30835.,05-30835.
• Citation: 473 F.3d 146
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Scott H. HITT; William A. Causey, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 146

473 F.3d 146

UNITED STATES of America, Plaintiff-Appellee, v. Scott H. HITT; William A. Causey, Defendants-Appellants.

No. 05-30835.

United States Court of Appeals, Fifth Circuit.

December 13, 2006.

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Josette Louise Cassiere, Asst. U.S. Atty. (argued), Ross Stewart Owen, Earl M. Campbell, Shreveport, LA, for Plaintiff-Appellee.

Betty Lee Marak (argued), Shreveport, LA, for Scott H. Hitt.

Brian E. Steel (argued), Atlanta, GA, Kenneth Craig Smith, Jr., Smith & John, Shreveport, LA, for William A. Causey.

Appeals from the United States District Court for the Western District of Louisiana.

Before HIGGINBOTHAM, DENNIS and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Scott Hitt and William Causey appeal their convictions for violating the Mann Act, 18 U.S.C. § 2422-23, raising various points of error. For the following reasons, we affirm both Hitt's conviction and Causey's conviction.

I. FACTS AND PROCEEDINGS

Scott Hitt and William Causey were indicted on three counts of violating the Mann Act, which criminalizes transporting a minor child across state lines for the purpose of engaging in illicit sexual activity.¹ At trial, evidence was introduced that Hitt and Causey, who were together in a homosexual relationship for a number of years, befriended the minor victim, whose initials are AV. Hitt and Causey were introduced to AV by one of his guardians at the time, Charlene Rushing. AV testified that, after the introduction in October 2002, Hitt and Causey took AV to dinner, ice skating, to the movies, and shopping, among other things. AV testified that, at one point during these encounters, Hitt "touched" AV's buttocks. Later in autumn, Hitt and Causey invited AV to attend the Independence Bowl football game in Shreveport, Louisiana. Hitt, Causey, AV, and Causey's son, McClain, traveled to Shreveport from the Jackson, Mississippi, area. The group attended the football game, had dinner afterward, and then retired to their hotel rooms. AV recalled that there was a mix-up at the hotel at which the group intended to sleep and that, accordingly, the group traveled to another hotel which had rooms available. Prior to arrival in Shreveport, the group had discussed sleeping arrangements, specifically that McClain and AV were to have shared a room while Hitt and Causey were to have shared a separate room. But upon arrival at the second hotel and at the request of either Hitt or Causey, AV shared a room with Hitt and Causey while McClain slept alone in a separate room.

AV testified that Hitt and Causey assaulted him that night: Causey held him down while Hitt had anal intercourse with him. AV did not tell anyone about what happened until much later. AV also testified that Hitt and Causey continued to have anal intercourse with him, approximately seventy-five to ninety times, through the fall of 2003.

AV testified that the last time Hitt and Causey had anal intercourse with him was in October 2003 and that, afterward, because AV complained of pain in his anal area, one of his guardians took him to a hospital.² The examining doctor, Dr. Zoog, diagnosed a rectal abscess. The next day AV told his teacher about the sexual abuse. From that point, AV underwent a physical examination conducted by Dr. Persing and was interviewed by numerous individuals from state social services. At trial, Dr. Persing showed photographs to the jury and testified that the photographs depicted AV's anal area, which showed characteristics of sexual abuse, such as fissures, redness, and bleeding.

The government introduced testimony by Detective Gammill, who was present at the arrest of both Hitt and Causey. Gammill stated that Hitt confessed to having anal intercourse with AV in Shreveport and in Mississippi. The government also introduced testimony from an expert in the behavior of sexual abusers and their abused, Dr. Seiden, who explained certain behaviors exhibited by Hitt, Causey, and AV. The government presented testimony from another of Hitt's alleged adolescent sexual-abuse victims, David Moore, as to details of abuse that were similar to the details of the abuse described by AV.

Hitt and Causey's defense consisted of attempting to prove that AV was not credible. To that end, Causey took the stand in his own defense, and the defendants cross-examined AV. The defense also called co-workers of Causey to provide testimony that Causey had been working at times when the alleged abuse of AV in Mississippi had occurred, character witnesses, a child psychology expert, and Charlene Rushing. Ultimately, the jury returned a verdict of guilty for both defendants on all counts, and the judge sentenced them both to 300 months, followed by supervised release.

Though the defendants appeal separately, they each bring four challenges that involve nearly identical arguments: (1) that the evidence was insufficient to convict Hitt and Causey of the Mann Act violations; (2) that the district court committed reversible error when it charged the jury with a superceded Allen charge; (3) that the district court violated the defendants' right to a public trial by closing the courtroom for the hearing of a pre-trial motion and for AV's testimony at trial; and (4) that the district court's limitation of cross-examination of AV violated the Confrontation Clause. Additionally, Hitt challenges his conviction on two separate grounds: (1) that the district court abused its discretion, under Daubert, when it allowed a psychiatrist to testify about the behavior of adolescent victims of sexual abuse and about the behavior of sexual abusers of children; and (2) that the district court erred by allowing, under Federal Rule of Evidence 413, a separate alleged victim of Hitt's sexual abuse, David Moore, to testify. Causey challenges his conviction on three separate grounds: (1) that the district court violated the Confrontation Clause by allowing the use of Hitt's confession, which did not mention Causey, in cross-examination of Causey and other witnesses; (2) that the district court committed reversible error by prohibiting Causey from questioning one of Hitt's witnesses on re-direct when Causey did not undertake a direct examination of the witness; and (3) that unobjected-to remarks in the government's closing statement were plain error that required reversal of the jury's verdict.

II. DISCUSSION

A. Sufficiency of the evidence

So long as a rational jury could have found the elements of each offense proven beyond a reasonable doubt, this court must uphold the verdict. United States v. Gonzales, 436 F.3d 560, 571 (5th Cir.2006). To prove a Mann Act violation, the government must prove that engaging in illicit sexual activity was "one of the efficient and compelling purposes of the travel." United States v. Garcia-Lopez, 234 F.3d 217, 220 (5th Cir.2000) (internal quotation omitted); see also Mortensen v. United States, 322 U.S. 369, 374, 64 S.Ct. 1037, 88 L.Ed. 1331 (1944) (requiring illicit sexual activity to be a "dominant motive" of the travel). Hitt and Causey contend that the government's case regarding intent is based entirely upon circumstantial evidence. Both argue that, instead of any illicit purpose, the trip's purpose was to attend the Independence Bowl football game and that, assuming sexual activity did occur, it was spontaneous.

The government presented sufficient circumstantial evidence from which a jury could rationally conclude that Hitt and Causey had the illicit intent necessary to support the Mann Act convictions. The government presented expert testimony by Dr. Seiden that persons who sexually abuse children engage in a "grooming process" designed to reduce resistance to sexual advances. This process, according to testimony, includes gift-giving, isolating the victim from his guardians, and activity designed to desensitize the victim to sexual advances, e.g., touching in an innocuous manner and thereafter escalating the sexual nature of the touches. Evidence was presented regarding Hitt and Causey's "grooming" of AV prior to the Independence Bowl trip: (1) that Hitt and Causey had purchased gifts for the victim, including dinners and a sweater, and (2) that Hitt had "touched" AV's buttocks. It is clear that AV was not accompanied on the Independence Bowl trip by his guardians, thus indicating that AV was isolated, at least physically, from his guardians. Evidence was also presented from which the jury could infer that Hitt and Causey manipulated the sleeping arrangements at the Shreveport hotel to ensure AV would room with Hitt and Causey.³ Testimony elicited from the victim indicated that abuse occurred in the Shreveport hotel, and medical testimony regarding injuries to AV's rectal area was consistent with sexual abuse and consistent with AV's statements that the sexual abuse continued in Mississippi after the group had returned.⁴ The jury could reasonably infer that Hitt and Causey transported the victim to Louisiana with an "efficient and compelling" purpose to engage in illicit sexual activity. See Garcia-Lopez, 234 F.3d at 220; see also Masse v. United States, 210 F.2d 418, 421 (5th Cir.1954).

B. The district court's Allen charge

District courts have broad discretion to give Allen charges when the jury indicates deadlock. United States v. Rivas, 99 F.3d 170, 175 (5th Cir.1996). Where a defendant does not object to the use of an Allen charge, review is for plain error. United States v. Miles, 360 F.3d 472, 482 (5th Cir.2004). Courts may "give modified versions of the Allen charge, so long as the circumstances under which the district court gives the instruction are not coercive, and the content of the charge is not prejudicial." United States v. McClatchy, 249 F.3d 348, 359 (5th Cir. 2001) (internal quotation omitted). "[T]he conviction will not be reversed unless an error seriously affect[ed] the fairness, integrity, or public...