United States v. Hite
| Decision Date | 21 October 2014 |
| Docket Number | No. 13–3066.,13–3066. |
| Citation | 769 F.3d 1154 |
| Parties | UNITED STATES of America, Appellee v. Paul David HITE, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
OPINION TEXT STARTS HERE
Appeal from the United States District Court for the District of Columbia (No. 1:12–cr–00065–1).
Lawrence S. Robbins argued the cause for appellant. With him on the briefs was Barry J. Pollack.
A.J. Kramer, Federal Public Defender, and Jonathan Jeffress and Rosanna M. Taormina, Assistant Federal Public Defenders, were on the brief as appointed amicus curiae The Federal Public Defender for the District of Columbia in support of the appellant.
Patricia A. Heffernan, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Ronald C. Machen, Jr., U.S. Attorney, and Elizabeth Trosman, Elizabeth H. Danello, and David B. Kent, Assistant U.S. Attorneys.
Before: ROGERS, PILLARD and WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKINS.
Following a jury trial, Paul David Hite was convicted under 18 U.S.C. § 2422(b) of attempting to persuade a minor to engage in unlawful sexual activity. Hite's conviction was based on Internet and telephone conversations that he had with an undercover detective who claimed to be an adult male with access to a twelve-year-old girl and a three-year-old boy. The District Court sentenced Hite to twenty-two years of imprisonment and a fine of $500,000. Hite now appeals his conviction.
The primary issue Hite raises on appeal is one of first impression for this Court: whether 18 U.S.C. § 2422(b) requires direct communications with a minor. We hold that a defendant can be convicted under § 2422(b) for communicating with an adult intermediary, if the defendant's communications with the intermediary are aimed at persuading, inducing, enticing, or coercing the minor. Nevertheless, because the District Court erred in instructing the jury and excluding expert testimony crucial to the defense, we vacate Hite's conviction and remand for a new trial.
Hite is a fifty-eight-year-old anesthesiologist from Richmond, Virginia. On February 1, 2012, Hite, using screen name “VetteguyZ06,” entered a private chat room ongay.com and initiated a conversation with “DCped,” a single man in the District of Columbia area who described himself as a “[n]o limit perv.” S.A. 98–99. “DCped” told Hite that he had an ongoing sexual relationship with a twelve-year-old girl (who he claimed was the daughter of his girlfriend) and had limited sexual contact with his three-year-old nephew. J.A. 517. Hite responded, “mmmm––––HOT,” and told “DCped” that he had previously been sexually active with the eleven-year-old son of his friend. Id. In reality, “DCped”—or J.P., as he later told Hite-was an online persona created by Metropolitan Police Department Detective Timothy Palchak. Both minors with whom J.P. claimed to be sexually involved were fictitious.
J.P. and Hite exchanged Yahoo Instant Messenger screen names and continued their conversation later that evening, during which Hite probed J.P. regarding his sexual encounters with the twelve-year-old girl, “Christy,” and his nephew. J.A. 518–21. When J.P. brought up the possibility that Hite could “hook up” with him and Christy, Hite responded, “would love to do a bi 3 way with you and a yng girl[.]” J.A. 521. Hite also told J.P. that he could show Christy a picture of hisgay.com profile picture and said that he “want[s] her to be into it.” J.A. 521–22.
Over the course of the next two weeks, Hite and J.P. communicated using Yahoo Instant Messenger and discussed in graphic detail their plans to engage in sexual activities with the two minors. Hite told J.P. that he hoped Christy would like his profile photo, J.A. 526, and that he was “willing to take it slowly at her pace,” J.A. 527. With respect to J.P.'s three-year-old nephew, Hite suggested that “a more gradual way to proceed” would be appropriate, such as taking a shower together or wrestling in their underwear. J.A. 538. In addition, Hite proposed using “jelly or honey” to “keep him enticed,” J.A. 556, and suggested using the peanut-butter-and-jelly mix that he had received as a gag gift with the boy, noting that it “would be perfect to stimulate oral exploration.” S.A. 201–02. Hite also asked J.P. if he ever gave the minors “any alcohol to relax them.” When J.P. responded, “Christy, yes; Benadryl to nephew,” Hite stated, “[n]ice on both counts,” and later reminded J.P. that they would need to give the boy Benadryl, in part to “distort any recollectionhe could have.” S.A. 180; J.A. 551, 557. On one occasion, J.P. asked Hite, “are you sure your [ sic ] not just into the fantasy of this? ?” J.A. 548. Hite responded, “it has been ages since I have been active––––FACT, never played with a boy your nephew's age but VERY interested.” Id. He shared the details of his prior sexual experience with an eleven-year-old boy and told J.P. that there was “NOTHING hotter” than “explor[ing] the real thing with a like-minded bud[.]” J.A. 550–52.
After several days of online chatting, J.P. told Hite that he would be babysitting his nephew on February 18, 2012. The two men agreed that they should meet on February 17 to “validate,” i.e., confirm that neither of them is an undercover cop, before engaging in sexual activities with the three-year-old boy on the next day. S.A. 191–93. A few days before their scheduled meeting, however, Hite expressed nervousness and emphasized that they would be “[t]wo adults meeting Friday night to explore and discuss common interests,” “[n]othing else expected or implied.” S.A. 217. When the two men spoke on the phone later that day, Hite reiterated, “[a]ny of the conversation that we have I'm sure on my end, and on your end also, has been totally fantasy, and it's just the two of us meeting Friday night to explore, and you know, discuss various things, correct?” J.A. 585. Hite also asked for, and received, directions to J.P.'s apartment in the District of Columbia. J.A. 593–94.
On February 17, 2012, instead of meeting J.P. in person as planned, Hite spoke to J.P. on the phone and revealed that he had “spent two sleepless nights ... trying to re[lieve] [his] paranoia.” J.A. 598. To ease Hite's nervousness, J.P. offered to do a “webcam session” performing fellatio on his nephew on the following morning, so that Hite could see that he was “legit.” J.A. 599. Relieved, Hite responded, “Okay, fabulous,” and the two men discussed the weekend weather forecast; Hite told J.P. that he could drive a “4–wheel drive vehicle,” in case of snow. J.A. 599–602.
The webcam session never took place. Hite was arrested later that evening at a gas station near his home in Richmond, Virginia. S.A. 322–24, 328–29. 1 During a search warrant executed at Hite's home, officers seized a laptop and recovered 400 “thumbnail” images of child pornography that had been opened from a separate electronic storage device, as well as an Internet search history indicating that Hite had searched “mapquest” for the Verizon Center, a landmark near J.P.'s fictitious residence. S.A. 345–52, 364–66. The officers also found a jar of peanut-butter-and-jelly mix in the laundry room. S.A.370–72.2
Hite was charged with two counts of attempted coercion and enticement of a minor under 18 U.S.C. § 2422(b). Hite's primary defense at trial was that he was engaged in fantasy and role-play and had no intention of engaging in sexual activities with a real child. After a three-day trial, the jury convicted Hite on both counts.
On appeal, Hite contends that he should not have been convicted under § 2422(b) because he never communicated directly with a minor and never attempted to persuadea minor through the use of a means of interstate commerce. Alternatively, Hite argues that he is entitled to a new trial because of a series of errors made by the District Court. In particular, he claims that the District Court (1) provided erroneous jury instructions; (2) improperly excluded the proposed testimony of his expert; and (3) prevented his counsel from impeaching Detective Palchak during cross-examination. Lastly, Hite requests reassignment to a different District Court judge on remand. We address each argument in turn.
Hite submits that his conduct did not violate 18 U.S.C. § 2422(b) because the statute requires direct communications with a minor and the use of a means of interstate commerce for the act of persuasion itself. Hite contends that each of the actus reus verbs in § 2422(b) describes an action directly performed by one person on another. He further claims that the statute's legislative history is devoid of any mention of adult intermediaries, and that any statutory ambiguity must be resolved in his favor under the rule of lenity.
Although it is a question of first impression for this Court, this is not the first time that a defendant has argued that § 2422(b) only applies to direct communications with a minor. Seven of our sister circuits have considered the issue and rejected a categorical requirement that the defendant communicate directly with a minor, rather than through an adult intermediary. United States v. McMillan, 744 F.3d 1033 (7th Cir.2014), cert. denied ––– U.S. ––––, 135 S.Ct. 292, ––– L.Ed.2d –––– (Oct. 6, 2014); United States v. Caudill, 709 F.3d 444 (5th Cir.2013), cert. denied, ––– U.S. ––––, 133 S.Ct. 2871, 186 L.Ed.2d 922 (2013); United States v. Berk, 652 F.3d 132 (1st Cir.2011); United States v. Douglas, 626 F.3d 161 (2d Cir.2010) (per curiam); United States v. Nestor, 574 F.3d 159 (3d Cir.2009); United States v. Spurlock, 495 F.3d 1011 (8th Cir.2007); United States v. Murrell, 368 F.3d 1283 (11th Cir.2004). Today, we join our sister circuits and hold that communications with an adult intermediary to persuade, induce, entice, or coerce a minor are punishable under § 2422(b), so long as the defendant's interaction with the intermediary is aimed at transforming or...
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