United States v. Hillie

• Decision Date: 05 January 2017
• Docket Number: Criminal No. 16–cr–0030 (KBJ)
• Citation: 227 F.Supp.3d 57
• Parties: UNITED STATES of America, v. Charles HILLIE, Defendant.
• Court: U.S. District Court — District of Columbia

227 F.Supp.3d 57

UNITED STATES of America,

v.Charles HILLIE, Defendant.

Criminal No. 16–cr–0030 (KBJ)

United States District Court, District of Columbia.

Signed January 5, 2017

Lindsay Jill Suttenberg, U.S. Attorney's Office for the District of Columbia, Washington, DC, for United States of America.

MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District Judge

A federal grand jury has indicted Charles Hillie ("Hillie" or "Defendant") of seven counts of production and possession of child pornography in violation of 18 U.S.C. §§ 2251 and 2252, and ten counts of child sexual abuse in violation of District of Columbia law. (See Superseding Indictment ("Indictment"), ECF No. 9, at 1–14 (citing 18 U.S.C. §§ 2251(a), (e), 2252(a)(4)(B) ; D.C. Code §§ 22–3008, –3009,–3009.02, –3020(a)(2), (a)(5)).)¹ Hillie has filed seven separate motions challenging various aspects of this prosecution. (See ECF Nos. 17–23.)² Before this Court at present is the motion in which Hillie raises questions about the sufficiency of the indictment, which charges Hillie with multiple counts of nearly identical offenses. (See Motion to Dismiss Indictment ("Def.'s Mot."), ECF No. 19.) According to Hillie, the language of the charging document does not provide an adequate description of the "place and time" that the alleged offenses took place, nor does it specify "the nature or type of ‘sexually explicit conduct’ " at issue. (Id. at 7.) Instead, says Hillie, the indictment merely quotes the broad language of the child pornography statutes without including any facts that specify the particular conduct of Hillie's that is the basis of the government's charges. (See id. ; see also Reply to United States' Suppl. Resp. to Def.'s Mot. ("Def.'s Suppl. Br."), ECF No. 42, at 3–4.) Hillie argues that these deficiencies amount to insufficient notice of the "nature of the accusations against him" and prevent him from "rais[ing] a double jeopardy defense in the event he is charged with similar offenses in the future" (Def.'s Mot. at 7–8), all in violation of his Fifth Amendment right to due process and Sixth Amendment right to be appraised of the nature and cause of the criminal charges against him (see id. at 5–8).

For the reasons explained below, this Court agrees with Hillie's arguments, at least as far as the federal child pornography counts are concerned. In this Court's view, the challenged indictment fails to provide minimally required factual information regarding the conduct of Hillie's that the government says constitutes production and possession of child pornography in violation of federal law (Counts One through Seven), and as a result, the Court concludes that Hillie's Motion to Dismiss the Indictment must be GRANTED IN PART , and that Counts One through Seven of the indictment must be DISMISSED WITHOUT PREJUDICE . Because the dismissal of the federal child pornography counts impacts this Court's continued exercise of jurisdiction over the remaining state law charges, this Court's dismissal order will be HELD IN ABEYANCE for a period of 14 days, to provide the government with an opportunity to consider the path forward and, if it so chooses, seek a superseding indictment that comports with the Constitution and the Federal Rules.

I. BACKGROUND

A. The Criminal Charges

On March 22, 2016, a federal grand jury returned a 17–count indictment against Hillie, and the government filed that charging document with this Court. (See Indictment, ECF No. 9.)³ The indictment charged Hillie with seven violations of federal law: two counts of Production of Child Pornography in violation of 18 U.S.C. § 2251(a) (Counts One and Two); one count of Possession of Child Pornography in violation of 18 U.S.C. § 2252(a)(4) (Count Three); and four counts of Attempted Production of Child Pornography in violation of 18 U.S.C. § 2251(a) and (e) (Counts Four, Five, Six, and Seven). (See Indictment at 1–6.) The indictment also alleged that Hillie committed several serious child sex abuse offenses in violation of D.C. law: one count of First Degree Child Sexual Abuse with Aggravating Circumstances in violation of D.C. Code §§ 22–3008, –3020(a)(2), and (a)(5) (Count Eight); eight counts of Second Degree Child Sexual Abuse with Aggravating Circumstances in violation of D.C. Code §§ 22–3009, –3020(a)(2), and (a)(5) (Counts Nine, Ten, Eleven, and Thirteen through Seventeen); and one count of Second Degree Sexual Abuse of a Minor with Aggravating Circumstances in violation of D.C. Code §§ 22–3009.02, –3020(a)(2), and (a)(5) (Count Twelve). (See Indictment at 6–14.)

1. The Charged Federal Offenses

The child pornography counts (Counts One through Seven) charge Hillie with violations of two statutory provisions: namely, 18 U.S.C. §§ 2251 and 2252, as amended. Congress first enacted these statutes in the Protection of Children Against Sexual Exploitation Act of 1977, Pub. L. No. 95–225, 92 Stat. 7, in order to sanction the use of minors in sexually explicit depictions and thereby eradicate the harms flowing from the clandestine distribution of child pornography. See Am. Library Ass'n v. Barr , 956 F.2d 1178, 1181 (D.C. Cir. 1992) (summarizing the legislative history of 18 U.S.C. §§ 2251, 2252, and 2256 ). Section 2251(a) broadly criminalizes the production of child pornography; it punishes anyone who, in connection with interstate commerce, "employs, uses, persuades, induces, entices, or coerces any minor to engage in ... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct[.]" 18 U.S.C. § 2251(a). Section 2252(a) makes knowing possession of child pornography unlawful; specifically, possession of "1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction ... if—(i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (ii) such visual depiction is of such conduct[.]" Id. § 2252(a)(4)(B).

The term "sexually explicit conduct"—which appears in both child pornography statutes—is defined as, inter alia , "actual or simulated ... lascivious exhibition of the genitals or pubic area of any person[.]" Id. § 2256(2)(A)(v). Furthermore, Congress has criminalized not only the completed acts of producing and possessing child pornography, but also the attempt to commit those crimes. See id. § 2251(e) (prescribing punishment for "[a]ny individual who violates, or attempts or conspires to violate, [§ 2251(a) ]"); see also id. § 2252(b)(2) (prescribing punishment for "[w]hoever violates, or attempts or conspires to violate, [§ 2252(a)(4) ]"). To prove attempt, the government must show that the defendant (1) took a "substantial step" toward committing the crime, such as "utiliz[ing] another person to perform an element" of the offense, and (2) acted "with the clear intent to cause the harm proscribed by the statute." United States v. Hite , 769 F.3d 1154, 1162 (D.C. Cir. 2014).

2. The Language In The Indictment

Counts One and Two of the indictment against Hillie—the production counts—are substantively identical with the exception of the date ranges alleged. Count One alleges that the violative conduct occurred sometime between July 1, 2008, and August 30, 2010, while Count Two charges Hillie with a violation that allegedly occurred sometime between July 1, 2008, and August 30, 2011. These two counts otherwise state the allegations against Hillie in identical terms, using solely the words of the statute, as follows:

Between on or about July 1, 2008 and on or about [either August 30, 2010 or August 30, 2011], in the District of Columbia, the defendant, CHARLES HILLIE, did knowingly and intentionally employ, use, persuade, induce, entice, and coerce J.A.A., [a] ... minor female, to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct, knowing and having reason to know that such visual depiction would be transported or transmitted using any means or facility of interstate or foreign commerce or knowing and having reason to know that such visual depiction would be transported or transmitted in or affecting interstate or foreign commerce; and which visual depiction was produced or transmitted using materials that had been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer; and the visual depiction was transported or transmitted using any means or facility of interstate or foreign commerce or the visual depiction was transported or transmitted in or affecting interstate or foreign commerce.

(Indictment at 1–2.)

Counts Four, Five, Six, and Seven—the attempted production counts—also recite this same statutory language with respect to the underlying conduct, but each of these counts adds the words "attempt to" after "did knowingly and intentionally[.]" (Id. at 3–5; see, e.g. , id. at 3 (stating, as to Count Four, that Hillie "did knowingly and intentionally attempt to employ, use, persuade, induce, entice, and coerce J.A.A." (emphasis added)).) Furthermore, as with the first two counts, the four attempt counts differ slightly with respect to the date ranges upon which the underlying conduct allegedly occurred. (Seeid. at 3 (Count Four covers attempted conduct during a period ranging from May 1, 2007, to May 31, 2012); id. at 4 (Count Five covers attempted conduct during a period ranging from July 1, 2008, to August 30, 2011—the same date range as Count Two); id. at 5 (Count Six covers attempted conduct that allegedly occurred on October 12, 2011); id. (Count Seven covers attempted conduct during a period ranging from July 1, 2011, to May 31, 2012).)

Lastly, the child-pornography-possession count (Count Three) reads:

Between on or about July l, 2008, and on or about August 30, 2011, in the District of Columbia, the defendant, CHARLES HILLIE, did knowingly possess at least one matter which contained any visual depiction that had been shipped or transported

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