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United States v. Hite

United States District Court, District Circuit

January 13, 2013



COLLEEN KOLLAR-KOTELLY, United States 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). The Government alleges that the Defendant engaged in a series of online chats and telephone conversations with an undercover police detective posing as an adult and arranged to engage in illicit sexual activity with a fictitious three year-old boy and twelve year-old girl. Presently before the Court is the Government's [26] Motion in Limine to Introduce Evidence Pursuant to Federal Rule of Evidence 404(b). The Government seeks to admit a variety of evidence recovered from a laptop seized from the Defendant's residence comprised primarily of (1) evidence of the Defendant allegedly accessing child pornography; and (2) evidence of the Defendant's online chats and email exchanges with other adults discussing illicit sexual activity with minors. Upon consideration of the pleadings, [1] the relevant legal authorities, and the record as a whole—including an in camera review of the proposed photographic evidence—the Court finds that certain redacted evidence proffered by the Government meets the standard for admissibility under Federal Rule of Evidence 404(b). The Court will require the Government to redact certain portions of various proposed exhibits to exclude irrelevant and/or unduly prejudicial evidence that substantially outweighs its probative value. The probative value of the redacted evidence which the Court finds admissible is not substantially outweighed by the danger of undue prejudice under Federal Rule of Evidence 403. Accordingly, the Government's Motion in Limine to Introduce Evidence Pursuant to Federal Rule of Evidence 404(b) is GRANTED IN PART as set forth below.

The Court shall provide the Defendant an opportunity to review and object to the proposed images and redacted chats with other individuals that the Government seeks to have admitted, but that the Defendant has not had an opportunity to review in their current form prior to filing his opposition to the Government's motion.


The Court set forth the factual history leading to the Defendant's arrest at length in prior opinions, and those discussions are incorporated by reference herein. 6/30/12 Mem. Opin. at 1-13; 10/9/12 Mem. Opin. at 2-4. The Court will reference certain aspects of the Defendant's discussions with the undercover detective known to the Defendant as "IP, " as necessary, and assumes the parties are familiar with the conversations.[2]


Federal Rule of Evidence 404(b) provides that "[e]vidence of a crime, wrong, or other acts is not admissible to prove a person's character in or to show that on a particular occasion the person acted in accordance with the character, " but "may be admissible for another purpose, " including proving "motive, opportunity, intent, . . . [or] absence of mistake." Fed.R.Evid. 404(b)(1), (2). The rule is one of "inclusion rather than exclusion. Although the first sentence of Rule 404(b) is framed restrictively, the rule itself is quite permissive, prohibiting the admission of other crimes evidence in but one circumstance—for the purpose of proving that a person's actions conformed to his character." United States v. Bowie, 232 F.3d 923, 929-30 (D.C. Cir. 2000) (internal quotations omitted).

In addressing trial court determinations on the admissibility of bad acts evidence under the Federal Rules of Evidence, this circuit has employed a two-step mode of analysis. Under the first step, which addresses Rule 404(b), "[the court] must determine whether the evidence is relevant to a material issue other than character. If so, [the court] proceeds to the second inquiry, " under Federal Rule of Evidence 403, "whether the probative value is substantially outweighed by the prejudice."

United States v. Burch, 156 F.3d 1315, 1323 (D.C. Cir. 1998) (quoting United States v. Mitchell, 49 F.3d 769, 775 (D.C. Cir. 1995)).


The Government seeks to introduce five categories of evidence pursuant to Rule 404(b):

(1) Twenty-four images of child pornography in thumbnail view and larger views of five of the twenty-four images. The images are a sample of 421 image and video files found in a "thumbcache" database file on the Defendant's laptop, Gov't Mot. at 12, Gov't Notice, ECF No. [49];
(2) A printout of forensic analysis of the Internet Explorer web browsing history and recently accessed files indicating that on certain dates at certain times, the laptop user accessed image and media files with names "consistent with child pornography, " see Gov't Reply Ex. B (browser history); Gov't Reply Ex. C (recently accessed files);
(3) Yahoo Instant Messenger chats between the Defendant and four separate individuals (Yahoo Userl, Yahoo User2, Yahoo User3, and Yahoo User4) on various dates since June 2011, see Gov't Reply Ex. D;
(4) Emails obtained from the Defendant's Yahoo email address indicating the Defendant established a Skype account, see Gov't Reply Ex. E; and
(5) Three emails exchanged by the Defendant and another individual (Yahoo User5), including three images attached to the emails showing an adult male and a two- to three-year old boy.

Gov't Mot. at 11-17. During discovery, the Government provided the Defendant all of the evidence at issue and provided defense counsel the opportunity to review the photographic evidence. The Government initially offered only a description of the precise evidence it sought to have admitted, but did not provide the proposed non-photographic evidence until its Reply brief. The Defendant filed a Surreply addressing the thumbcache evidence, but did not include any objections to the other proposed exhibits.

The Government contends that this evidence is "highly relevant to prove the defendant's intent, knowledge, plan, and absence of mistake in committing the charged offense." Id. at 18. The Defendant argues that the evidence proffered by the Government is irrelevant to the issue of the Defendant's intent to entice or coerce the minors at issue in the Superseding Indictment, but does not address the admissibility of the evidence as probative of his knowledge or absence of mistake. The Court finds the proposed Rule 404(b) evidence is probative of the Defendant's intent in this case. The Court further agrees with the Government's analysis—which the Defendant does not dispute—that the evidence is generally relevant to the Defendant's knowledge and absence of mistake. However, the evidence at issue in the Government's motion is not probative of a "plan" under Rule 404(b). The Government does not identify a common scheme or plan, or describe how the proposed Rule 404(b) evidence is probative of that plan. See United States v. Burkley, 591 F.2d 903, 920 (D.C. Cir. 1978) (noting plan evidence is admissible under Rule 404(b) "to show the existence of a common scheme or plan embracing the commission ...

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