United States v. Hite

• Citation: 950 F.Supp.2d 23
• Decision Date: 14 June 2013
• Docket Number: Criminal No. 12–65 (CKK).
• Parties: UNITED STATES of America, v. Paul David HITE, Defendant.
• Court: U.S. District Court — District of Columbia

950 F.Supp.2d 23

UNITED STATES of America,

v.Paul David HITE, Defendant.

Criminal No. 12–65 (CKK).

United States District Court,

District of Columbia.

June 14, 2013.

David B. Kent, Julieanne Himelstein, U.S. Attorney's Office, Darcy Katzin, Department of Justice, Washington, DC, for United States of America.

Barry J. Pollack, Miller & Chevalier Chartered, Washington, DC, Claire G. Cardwell, Stone, Cardwell & Dinkin, PLC, James M. Nachman, Law Office of James M. Nachman, Richmond, VA, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, District Judge.

Defendant Paul David Hite was charged by Superseding Indictment with two counts of attempted coercion and enticement of a minor in violation of 18 U.S.C. § 2422(b). Following a jury trial, the Defendant was convicted of both counts. Presently before the Court is the Defendant's [98] Rule 29 Motion for Judgment of Acquittal. The Defendant argues he is entitled to a judgment of acquittal because, as a matter of law, he could not have been charged with attempting to violate the underlying District of Columbia statute identified in the Superseding Indictment. Upon consideration of the parties' oral arguments, ¹ the pleadings,² and the relevant legal authorities, the Court finds section 2422(b) does not require the Government to prove that a defendant could be independently charged with attempting to violate the underlying state statute. Therefore, the Defendant's motion for acquittal is DENIED.

I. BACKGROUND

The Court detailed the factual background at length in two memoranda opinions denying the Defendant's motions to dismiss, and incorporates that discussion herein. 6/30/12 Mem. Op., ECF No. [15]; 10/9/12 Mem. Op., ECF No. [24]. In short, the Defendant engaged in a number of online and telephonic conversations with an individual known to the Defendant as “JP” concerning sexual activity with JP's three year-old nephew and the twelve year-old daughter of JP's girlfriend. See 6/30/12 Mem. Op. 2–13. “JP” was the undercover identity used by Metropolitan Police Department Detective Timothy Palchak. The Superseding Indictment charged the Defendant with two counts of “using facilities of interstate commerce, that is, a telephone and computer connected to the Internet, [to] knowingly attempt to persuade, induce, entice, and coerce a minor of the [ages of 3 and 12 years], to engage in sexual activity under such circumstances as would constitute a criminal act” under D.C.Code § 22–3008. Superseding Indictment, ECF No. [10]. Section 22–3008 of the D.C.Code provides

[W]hoever, being at least 4 years older than a child, engages in a sexual act with that child or causes that child to engage in a sexual act shall be imprisoned for any term of years or for life and, in addition, may be fined an amount not to exceed $250,000.

D.C.Code § 22–3008.

At the close of the Government's case the Defendant moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29, on two grounds. First, the Defendant argued that the Government failed to produce sufficient evidence to show that the Defendant took a substantial step towards completion of the offense. 2/8/12 PM Tr. 30:11–31:6. The Court shall address this portion of the Defendant's motion under separate cover. The Defendantalso argued that, as a matter of law, section 2422(b) requires the Government to prove the Defendant could be charged with attempting to violate the underlying state offense identified in the indictment. See id. at 18:19–20:9. The Defendant suggested that D.C.Code § 22–3008 did not apply to conduct involving fictitious minors, thus, as a matter of law, the Government could not prove the Defendant could be charged with attempting to violate section 22–3008. Id. The Court reserved its decision on the Defendant's motions pending the jury's verdict. Id. at 38:16–21. Following a verdict of guilty on both counts of the Superseding Indictment, the Court asked the parties to submit further briefing regarding the second basis for the Defendant's motion, which is now ripe for resolution.

II. LEGAL STANDARD

Federal Rule of Criminal Procedure 29 provides in relevant part that “[a]fter the government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Fed. R. Cr. P. 29(a).

The court may reserve decision on the motion, proceed with the trial (where the motion is made before the close of all the evidence), submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict. If the court reserves decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved.

Fed. R. Cr. P. 29(b).

III. DISCUSSION

In response to the Defendant's motion, the Government argues that as a threshold matter, the Defendant waived his legal argument by failing to raise it before trial. Alternatively, the Government contends that on the merits the Defendant's motion rests on an incorrect interpretation of the Section 2422(b). As set forth below, the Court finds the Defendant did not waive his argument by failing to raise it before trial, but the Government is correct that section 2422(b) does not incorporate the elements of the state offense in the manner suggested by the Defendant. Therefore, the Court shall deny the Defendant's motion without reaching the question of whether D.C.Code § 22–3008 applies to incidents involving fictitious children.

A. The Defendant Did Not Waive His Argument Underlying His Rule 29 Motion by Failing to Raise It before Trial

Initially, the Government argues that the Defendant was required to bring the present motion as a motion to dismiss the Superseding Indictment before the trial commenced. “[A]n indictment may be challenged on the ground that it failed to state a charge at any time up to and including direct appeal,” however, “an objection to an indictment based on other ‘defects' must be raised before trial or will be deemed waived.” United States v. Childress, 58 F.3d 693, 720 (D.C.Cir.1995) (citing Fed. R. Cr. P. 12(b)(3)). According to the Government, the Defendant seeks a judgment of acquittal based on a defect in the Superseding Indictment (rather than a failure to state a claim), and therefore waived his argument by failing to bring his motion before trial. For his part, the Defendant argues that Rule 12 has no application in this scenario because he moved for a judgment of acquittal pursuant to Rule 29. Both arguments are misplaced.

“Claims that a statute named in an indictment does not proscribe the alleged conduct are generally treated as claims that the indictment ‘fails to state an offense.’ ” United States v. Teh, 535 F.3d 511, 515 (6th Cir.2008) (citing cases from the Second and Fifth Circuits). Teh was accused of importing counterfeit DVDs, and indicted under 18 U.S.C. § 545, which prohibits knowingly importing merchandise “contrary to law.” Id. at 513. Following a bench trial, Teh filed a motion for judgment of acquittal arguing, among other things, that his alleged conduct could only be prosecuted under the Copyright Act, not section 545. Id. at 515. Teh “claim[ed] that the statute asserted in the indictment to have been violated does not reach the conduct alleged,” therefore, the court concluded that Teh's argument “falls under the Rule 12(b)(3)(B) exception as a claim that the indictment failed to state an offense.” Id. at 516 (citing United States v. Miller, 161 F.3d 977 (6th Cir.1998)); see also Miller, 161 F.3d at 982 (“In this case, Byrnes' argument is that the indictment against her fails to charge an offense because the conduct with which she is charged does not fall within the statute under which the government proceeded. Thus, Byrnes' failure to raise the issue prior to trial does not constitute a waiver.”). This is precisely the argument the Defendant makes in the present motion: the Defendant asserts that he cannot be charged with attempting to violate section 2422(b) with the underlying state law violation of D.C.Code 22–3008 because section 22–3008 applies only to real children and this case involves fictitious children. Def.'s Mot. at 2. Although styled as a Rule 29 motion, the Defendant in essence moves to dismiss the Superseding Indictment for failure to state a claim, which the Court can consider despite being raised after trial commenced.

The D.C. Circuit cases cited by the Government provide little guidance as to how the Defendant's present motion should be characterized. The D.C. Circuit has not set forth a doctrinal approach through which a court can distinguish between a defect and the failure to state a claim, opting instead to define “defects” by way of example. Compare United States v. Mathis, 216 F.3d 18, 26, n. 7 (D.C.Cir.2000) (finding argument that indictment was duplicative asserted a defect in the indictment); United States v. Weathers, 186 F.3d 948, 952 (D.C.Cir.1999) (holding multiplicity challenge to indictment alleged a defect in the indictment), with Childress, 58 F.3d at 720 (analyzing argument that the indictment failed to specify required overt acts under rubric of failure to state a claim). The Sixth Circuit's approach as set forth in Teh is consistent with the limited useful case law on this issue in the D.C. Circuit. Accordingly, the Court finds the Defendant's motion functionally alleges the Superseding Indictment fails to state a claim, therefore the Defendant was not required to raise this issue before trial.

B. Section 2422(b) Does Not Require the Government to Prove the Defendant Attempted to Violate the Underlying State Offense

The crux of the Defendant's motion is that “[a] prerequisite to conviction under 18 U.S.C. § 2422(b) is that the defendant may be charged with a violation of, or with an attempt to violate, the...