United States v. Hewlett
| Decision Date | 16 June 2020 |
| Docket Number | Criminal No. 1:20-CR-64 |
| Citation | 467 F.Supp.3d 347 |
| Parties | UNITED STATES of America, v. Kevin HEWLETT, Defendant. |
| Court | U.S. District Court — Eastern District of Virginia |
Gwendelynn Bills, US Attorney's Office, Alexandria, VA, for United States of America.
Kevin Eugene Wilson, Office of the Federal Public Defender, Alexandria, VA, Vernida Rochelle Chaney, Chaney Law Firm PLLC, Fairfax, VA, for Defendant.
T. S. Ellis, III, United States District Judge On March 5, 2020, a federal grand jury returned a two-count Indictment charging defendant Kevin Hewlett with (1) sexual exploitation of a minor for the purpose of producing a visual depiction of a minor engaging in sexually explicit conduct in violation of §§ 2251(a) and 2251(e), and (2) distribution of a visual depiction of a minor engaging in sexually explicit conduct in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1). In Count I, the Indictment alleges that on or about August 15, 2018, defendant used an Apple iPhone 7 Plus to produce and to attempt to produce a video file depicting defendant engaging in sexual intercourse with an unidentified underage female referred to as MINOR GIRL 1. In Count II, the Indictment alleges that on or about January 8, 2019, defendant used Instagram, a social media communication platform, to distribute and to attempt to distribute a video of defendant engaging in sexually explicit conduct with MINOR GIRL 1.
At issue now in this matter is defendant's Motion to Dismiss the Indictment. First, defendant argues that federal jurisdiction is lacking because any production or distribution of a visual depiction of a minor engaging in sexually explicit conduct as alleged in Counts I and II occurred entirely intrastate and did not result in knowing or intentional transmission of a visual depiction of a minor engaging in sexually explicit conduct across state lines. Second, defendant argues that each of the two counts of the Indictment is duplicitous because each count charges defendant with both an attempt to commit a crime and the completed crime. The motion has been fully briefed and is now ripe for disposition.
To begin with, it is necessary to confirm that each count of the Indictment is legally sufficient. In this respect, the standard an indictment must meet is found in Rule 7(c)(1), Fed. R. Crim. P., which provides that an indictment need only contain "a plain, concise, and definite written statement of the essential facts constituting the offense charged." Importantly, an indictment need not contain detailed factual allegations to satisfy this standard. United States v. Resendiz-Ponce , 549 U.S. 102, 110, 127 S.Ct. 782, 166 L.Ed.2d 591 (2007). Rather, the indictment is sufficient "(1) if it alleges the essential elements of the offense, that is, it fairly informs the accused of what he is to defend; and (2) if the allegations will enable the accused to plead an acquittal or conviction to bar a future prosecution for the same offense." United States v. Rendelman , 641 F.3d 36, 44 (4th Cir. 2011).1 A review of the Indictment makes clear that it passes this test of legal sufficiency.
Count I of the Indictment charges defendant with sexual exploitation of a minor for the purpose of producing a visual depiction in violation of § 2251(a).2
The offense of sexual exploitation of a minor for the purpose of producing a visual depiction in violation of 18 U.S.C. § 2251(a) contains three essential elements: (1) that the victim was less than 18 years old; (2) that the defendant used, employed, persuaded, induced, enticed, or coerced the minor to take part in sexually explicit conduct for the purpose of producing a visual depiction of that conduct; and (3) that the visual depiction was produced using materials that had been transported in or affecting interstate or foreign commerce. See United States v. Malloy , 568 F.3d 166, 169 (4th Cir. 2009) ().
Indictment at 1, ¶ 1. By closely tracking § 2251(a)'s language, Count I provides defendant with sufficient notice of the charge against him. United States v. Wicks , 187 F.3d 426, 427 (4th Cir. 1999) (). Count I's factual allegations also enable defendant "to plead an acquittal or conviction to bar a future prosecution for the same offense." Rendelman , 641 F.3d at 44. Count I identifies the date the alleged offense occurred, August 15, 2018, and the means by which the offense was committed, namely "a video file depicting [defendant] engaging in sexual intercourse with MINOR GIRL 1, produced using an Apple iPhone 7 Plus." Indictment at 1–2, ¶ 1. The Indictment's allegations identify the facts and circumstances of the violation of § 2251(a) charged in Count I adequately, thereby enabling defendant to plead double jeopardy in a subsequent prosecution for the same offense. Accordingly, Count I of the Indictment is legally sufficient.
Seeking to avoid this result, defendant argued in his Reply brief that the Indictment fails to allege and that the government cannot prove that the defendant possessed the requisite intent to violate § 2251(a) because "it is not sufficient simply to prove that the defendant purposefully took a picture." United States v. Palomino-Coronado , 805 F.3d 127, 131 (4th Cir. 2015) (). Defendant's argument fails. Here, the Indictment sufficiently alleges requisite intent by stating that defendant induced MINOR GIRL 1 "to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct." Indictment at 1, ¶ 1. Nothing more is required here because an indictment "need not set forth with detail the government's evidence; nor need it enumerate every ‘every possible legal and factual theory of [the defendant's] guilt.’ " United States v. Le , 310 F. Supp. 2d 763, 773 (E.D. Va. 2004) (quoting United States v. Am. Waste Fibers Co. , 809 F.2d 1044, 1047 (4th Cir. 1987) ). As to defendant's argument that the government cannot establish that defendant possessed the requisite intent, this contention will be addressed on the basis of the evidence adduced at trial, not the Indictment's allegations. See United States v. Critzer , 951 F.2d 306, 307 (11th Cir. 1992) ( ).
18 U.S.C. § 2252(a)(2). Therefore, the essential elements of a violation of § 2252(a)(2) are: (1) that defendant knowingly distributed a visual depiction of a minor engaging in sexually explicit conduct; (2) that defendant distributed this visual depiction using any means or facility of interstate commerce or using any device or instrumentality that has been shipped or transported in or affecting interstate commerce; and (3) that defendant knew that the production of this visual depiction involved the use of a minor engaging in sexually explicit conduct and that the visual depiction was of a minor engaging in sexually explicit conduct. See United States v. Cedelle , 89 F.3d 181, 184–86 (4th Cir. 1996) ().
Indictment at 3, ¶ 2. As with Count I, Count II closely tracks the statute's language, thereby providing defendant with sufficient notice of the charge against him. See Wicks , 187 F.3d at 427 (). Count II's factual allegations thereby enable defendant "to plead an acquittal or conviction to bar a future prosecution for the same offense." Rendelman , 641 F.3d at 44. Count II alleges the date on which the alleged offense occurred, January 8, 2019, and the means by which defendant allegedly committed the offense, namely "a video of [defendant] engaging in sexually explicit conduct with a minor ... distributed via a social media communication platform, Instagram." Indictment at 3, ¶ 2. The Indictment's allegations adequately identify the facts and circumstances of the violation of § 2252(a)(2) charged in Count II in a manner that enables defendant to plead double jeopardy in a...
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