United States v. Hillie, 19-3027

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtWILKINS, CIRCUIT JUDGE
PartiesUnited States of America, Appellee v. Charles Hillie, Appellant
Docket Number19-3027
Decision Date17 September 2021

United States of America, Appellee
v.

Charles Hillie, Appellant

No. 19-3027

United States Court of Appeals, District of Columbia Circuit

September 17, 2021


Argued April 20, 2021

Appeal from the United States District Court for the District of Columbia (No. 1:16-cr-00030-1)

Richard Seligman, appointed by the court, argued the cause and filed the briefs for appellant.

David Goodhand, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Elizabeth Trosman and John P. Mannarino, Assistant U.S. Attorneys.

Before: HENDERSON, ROGERS and WILKINS, Circuit Judges.

OPINION

WILKINS, CIRCUIT JUDGE

A jury found Appellant Charles Hillie guilty of two counts of sexual exploitation of a minor, under 18 U.S.C. § 2251(a); four counts of attempted sexual exploitation of a minor, under 18 U.S.C. § 2251(e); one count of possession of images of a minor engaging in sexually explicit conduct, under 18 U.S.C. § 2252(a)(4)(B); and various counts relating to sexual abuse of children and minors, under D.C. law. The District Court sentenced Hillie to a total of 354 consecutive months of imprisonment-180 months on the counts of sexual exploitation of a minor, attempted sexual exploitation of a minor, and possession of images of a minor engaging in sexually explicit conduct; and 174 months on the remaining counts.

Hillie appeals, raising several claims. He argues that there was insufficient evidence to support his convictions of sexual exploitation of a minor, attempted sexual exploitation of a minor, and possession of images of a minor engaging in sexually explicit conduct. He argues that the District Court erroneously instructed the jury. He also argues that the District Court erroneously admitted certain testimony. And he argues that the District Court erroneously denied his motion to sever the counts of sexual exploitation of a minor, attempted sexual exploitation of a minor, and possession of images of a minor engaging in sexually explicit conduct from the remaining counts.

For the reasons given below, we agree with Hillie that there was insufficient evidence to support his convictions of sexual exploitation of a minor, attempted sexual exploitation of a minor, and possession of images of a minor engaging in sexually explicit conduct. Accordingly, we vacate Hillie's convictions on those counts. We reject Hillie's other claims.

I.

We begin with the procedural background and a summary of the evidence presented at trial. "Because we are reviewing a jury verdict of guilt, we recount the evidence in the light most favorable to the Government." United States v. Bostick, 791 F.3d 127, 135 (D.C. Cir. 2015).

Between 2005 and 2015, Hillie lived on and off with his girlfriend, Jo. A, and her two minor daughters, JAA and JA. Between 2007 and 2014, Hillie sexually abused JAA and JA by penetrating JAA's vulva with his finger on one occasion, touching JAA's buttocks with his hand on two occasions, touching JAA's breast with his hand on one occasion, touching JA's breast with his hand on two occasions, touching JA's vulva with his hand on one occasion, and touching JA's buttocks with his hand on one occasion.

On July 29, 2015, the Government filed a criminal complaint in the Superior Court of the District of Columbia accusing Hillie of first- and second-degree child sexual abuse. Law enforcement officers then secured a search warrant to locate and seize a laptop computer and camera belonging to Hillie. The officers executed the search warrant, arrested Hillie, and recovered his laptop and camera. The officers then secured a separate warrant to search the contents of the laptop and camera. The search revealed six videos. The contents of all six videos are relevant to the issues raised on appeal, but two are particularly so.

The first video is 29 minutes and 49 seconds long. It depicts Hillie positioning a camera underneath a bed in JAA's bedroom. Hillie walks back and forth from the camera several times, looking at it from different angles and adjusting its position. Eventually, Hillie exits the bedroom, leaving the camera behind, still recording. Later, JAA enters the bedroom. For several minutes she walks around the room, clothed, dancing and singing to herself. She proceeds to undress, standing almost directly in front of the camera. While undressing, she bends over in front of the camera, exposing her genitals to the camera for approximately nine seconds. After she has undressed, she sits slightly to the left of the camera and appears to clean her genitals and legs with a towel. While she does this, her breasts and pubic hair are visible but her genitals are not. She proceeds to apply lotion to her body for approximately 11 minutes. While she does this, her breasts are visible and her pubic hair is occasionally visible but her genitals are not. She proceeds to stand up and walk naked around the room. While she walks, her pubic area is intermittently visible for periods of approximately one or two seconds. She then dresses and exits the room. After JAA exits the room, Hillie returns and retrieves the camera.

The second video is 12 minutes and 25 seconds long. It depicts Hillie positioning a camera in a bathroom ceiling vent, directly above a toilet. Hillie then leaves the bathroom. Shortly after, Jo. A enters, sits on the toilet, stands up, and leaves. JAA and another minor, whom the Government refers to as KA, see ECF No. 55, at 4, proceed to enter the bathroom. JAA proceeds to sit on the toilet. The upper part of JAA's buttocks is visible for approximately 20 seconds while she sits on the toilet. Because the camera is directly above the toilet, JAA's genitals are not visible. JAA stands up and KA proceeds to sit on the toilet. The upper part of KA's buttocks is visible for approximately 20 seconds, but her genitals are not visible. JAA proceeds to wipe KA's pubic area with a washcloth. KA's pubic area is not visible while she does this, although occasionally the upper part of KA's buttocks is visible. KA proceeds to leave the bathroom. After she has left, JAA removes her pants and underwear and proceeds to wipe her pubic area with a washcloth. JAA's pubic area is visible for approximately 16 seconds while she does this. JAA proceeds to dress and exit the bathroom. Jo. A then enters and sits on the toilet again. Jo. A then stands up, looks up at the ceiling vent, sees the camera, and removes it.

The remaining four videos depict Hillie hiding a video camera in a bathroom ceiling vent and a bedroom dresser, but do not depict JAA's or JA's genitals or pubic area. See ECF No. 55, at 6-7.

On January 18, 2017, the Government filed a 17-count superseding indictment. (The Government had filed an earlier superseding indictment, on March 22, 2016, which Hillie successfully moved to dismiss.) Counts 1 and 2 charged Hillie with sexual exploitation of a minor, in violation of 18 U.S.C. § 2251(a), in relation to Hillie's production of the two videos in which JAA's genitals and pubic area are visible as described above. Count 3 charged Hillie with possession of images of a minor engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B), in relation to Hillie's possession of those same two videos in which JAA's genitals and pubic area are visible. Counts 4-7 charged Hillie with attempted sexual exploitation of a minor, in violation of 18 U.S.C. § 2251(a) and (e), in relation to Hillie's production of each of the four remaining videos. Count 8 charged Hillie with first-degree child sexual abuse, under D.C. Code §§ 22-3008, 3020(a)(2), (5), in relation to Hillie's touching of JAA's vulva, but not his production of any of the videos. Counts 9-11 and 13-17 charged Hillie with second-degree child sexual abuse, under D.C. Code §§ 22-3009, 3020(a)(2), (5), in relation to his touching of JAA and JA's buttocks, breasts, and vulvas, but not his production of any of the videos. Count 12 charged Hillie with second-degree sexual abuse of a minor, under D.C. Code §§ 22-3009.02, 3020(a)(5), in relation to his touching of JAA's buttocks, but not his production of any of the videos.

A jury trial began on March 29, 2018. On April 3, 2018, after the close of the evidence, Hillie moved for a judgment of acquittal on all counts. The District Court denied his motion with respect to all counts except one of the D.C. criminal charges (count 11), which the Court dismissed as multiplicitous. On April 4, 2018, the jury returned a verdict of guilty on all remaining counts. On April 2, 2019, the District Court sentenced Hillie to 180 months of imprisonment on each of counts 1-2 and 4-7, and 120 months of imprisonment on count 3, to run concurrently to each other but consecutive to remaining counts; to 102 months of imprisonment on count 8, and 24 months of imprisonment on each of counts 9, 10, and 12, to run concurrently with each other and the term of imprisonment on count 8 but consecutive to remaining counts; and to 72 months of imprisonment on each of counts 13-17, to run concurrently to each other but consecutive to remaining counts.

Hillie timely appealed his convictions on all counts.

II.

Hillie challenges the sufficiency of the evidence as to counts 1-7.

Hillie challenged the sufficiency of the evidence below on two grounds. First, he argued that there was insufficient evidence to support his convictions on counts 1-3 because the videos related to those counts did not depict a minor engaging in sexually explicit conduct. See Def.'s Second Mot. to Dismiss Counts 1-7 of the Indictment, ECF No. 50, at 1, 4. Second, he argued that there was insufficient evidence to support his convictions on counts 1-7 because the evidence did not establish that he intended to produce depictions of a minor engaging in sexually explicit conduct. Id. at 1, see also Mem. Op. Denying Def.'s Second Mot. to Dismiss Counts 1-7 of the Indictment, ECF No. 81, at 2.

Hillie raises...

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