United States District Court, District of Columbia
[Copyrighted Material Omitted]
Barry J. Pollack, Miller & Chevalier Chartered, Washington, DC, James M. Nachman, Law Office of James M. Nachman, Richmond, VA, for Defendant.
David B. Kent, U.S. Attorney's Office, Washington, DC, for Plaintiff.
COLLEEN KOLLAR-KOTELLY, District Judge.
Defendant Paul David Hite is charged by superseding indictment with two counts of attempted coercion and enticement of a minor in violation of 18 U.S.C. § 2422(b). Superseding Indictment, ECF No. , at 1-2. The Defendant previously moved to dismiss both counts of the superseding indictment on the grounds that the statute prohibits attempted enticement by way of direct communications with a minor only, but does not prohibit attempted enticement through an adult intermediary. See generally Def.'s Mot. to Dismiss, ECF No. . The Court denied the Defendant's motion, but granted the Defendant an opportunity to further develop the constitutional issues that were raised but not effectively briefed in his initial motion. 6/30/12 Mem. Opin., ECF No. , at 30-31. Presently before the Court is the Defendant's  Supplemental Memorandum in Support of His Motion to Dismiss Counts One and Two of the Superseding Indictment. Upon consideration of the parties' pleadings,  the relevant legal standards, and the record as a whole, the Court finds Defendant's constitutional arguments lack merit. Accordingly, the Defendant's motion to dismiss is DENIED.
The Court detailed the factual allegations against the Defendant at length in its initial Memorandum Opinion, 6/30/12 Mem. Opin. at 1-13, and that discussion is incorporated by reference into this Memorandum Opinion. In short, the Defendant initiated a conversation via instant message with District of Columbia Metropolitan Police Department Detective Timothy Palchak, who posed as " JP" in a chat room on a social networking site. Id. at 2. The Government alleges that over the course of several days, the Defendant and JP had a series of sexually explicit conversations through instant message and over the telephone regarding JP's three year old nephew
and JP's girlfriend's twelve year old daughter. Id. at 2-13. The parties discussed meeting in person to engage in sexual activity with both the three-year old and twelve-year old. E.g., id. at 6-7. The Defendant and JP arranged for the Defendant to travel to JP's apartment in the District of Columbia on Friday, February 17, 2012. Id. at 9. JP explained that his nephew would arrive on Saturday, and the parties had explicit discussions regarding the sexual acts they planned to engage in with JP's nephew. Id. During later discussions regarding logistics for the meeting, the Defendant claimed that all of their prior conversations were mere fantasies, and that they were simply two consenting adults meeting without the intent to engage in any illegal activity. E.g., id. at 12. On Friday February 17, the Defendant indicated he was paranoid about the planned meeting, and stated he needed " a little bit more confirmation" before traveling to JP's apartment. Id. The Government filed a criminal complaint against the Defendant that same day, and the Defendant was arrested on February 21, 2012. Id. at 13.
In his initial motion to dismiss, the Defendant argued that as a matter of law, the Government could not show the Defendant acted with the requisite intent to persuade, induce, entice, or coerce a minor to engage in illicit sexual activity, or that the Defendant had taken a substantial step towards commission of the offense proscribed in Section 2422(b). The Defendant specifically argued, in relevant part, that Section 2422(b) prohibits only direct communication between a defendant and a minor with the intent to persuade the minor to engage in illicit sexual activity, but does not criminalize communication between a defendant and another adult. In the alternative, the Defendant asserted that at most, Section 2422(b) prohibits communications between a defendant and the parent or legal guardian of a minor made with the intent to persuade the minor to engage in illicit sexual activity.
The Court rejected both arguments, holding that under the plain language of the statute " [i]t is sufficient that the defendant communicate with an adult intermediary with the intent that the end result be the enticement of the minor to engage in illegal sexual activity." 6/30/12 Mem. Opin. at 18. As for the relationship between the adult intermediary and the minor, the Court explained that that the relevant question is whether the defendant thought the adult intermediary had sufficient influence or control over the minor to succeed in enticing the desired illicit behavior. Id. at 20-21. Although other courts have found a parent/guardian relationship to be sufficient to show such influence or control, the adult intermediary did not necessarily have to be a parent or guardian in order to have such influence or control. Id. ...