June 20, 2013
UNITED STATES OF AMERICA,
PAUL DAVID HITE, Defendant.
COLLEEN KOLLAR-KOTELLY, District Judge.
Presently before the Court is the Defendant's oral motion for a judgment of acquittal following the close of the Government's evidence, on which the Court reserved its decision pursuant to Federal Rule of Criminal Procedure 29(b). Based on the evidence in the record, the parties' arguments,  and the relevant legal authorities, the Court finds that the Government presented sufficient evidence to sustain a conviction on both counts of the Superseding Indictment. Accordingly, the Defendant's motion for a judgment of acquittal is DENIED.
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. The evidence introduced by the Government demonstrated that 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. 2/6/13 AM Tr. 113:12-132:19; 2/6/13 PM Tr. 3:11-101:22; 2/7/13 AM Tr. 11:16-29:23; 2/7/13 AM Tr. 30:3-114:5 (cross-examination); 2/7/13 PM Tr. 4:3-52:18 (cross-examination); 2/7/13 PM Tr. 52:24-58:19 (re-direct); Gov't Ex. 4 (gay.com chat transcript); Gov't Ex. 5 (Yahoo chat transcripts); Gov't Ex. 10 (recording of 2/14/12 telephone call); Gov't Ex. 11 (recording of 2/17/12 telephone call).
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 the Defendant intended to entice or coerce the minors at the time of the alleged offense, or took substantial steps towards completion the offenses. 2/8/12 PM Tr. 30:11-31:6, 34:8-35:2. The Defendant also 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 Court reserved its decision on the Defendant's motions pending the jury's verdict. Id. at 38:16-21. The Jury subsequently convicted the Defendant on both counts of the Superseding Indictment. The Court rejected the Defendant's legal argument in support of his motion for a judgment of acquittal in the June 14, 2013, Memorandum Opinion and Order, ECF Nos. [123-24]. The Court addresses the first portion of the Defendant's motion relating to the sufficiency of the evidence to sustain a conviction in this Memorandum Opinion.
II. LEGAL STANDARD
Rule 29(a) of the Federal Rules of Criminal Procedure provides in pertinent 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. Crim. P. 29(a). "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. Crim. P. 29(b). "In ruling on a motion for a judgment of acquittal, the trial court must view the evidence in the light most favorable to the Government giving full play to the right of the jury to determine credibility, weigh the evidence and draw justifiable inferences of fact." United States v. Treadwell, 760 F.2d 327, 333 (D.C. Cir. 1985) (citation omitted). "This stringent standard contemplates that the ultimate decision of guilt or innocence should be left to the jury, and that it is the province of the jury to credit certain testimony and reject other testimony." United States v. Khanu, 675 F.Supp.2d 55, 60 (D.D.C. 2009).
The Court must deny a motion for judgment of acquittal when the evidence "is sufficient to permit a rational trier of fact to find all of the essential elements of the crime beyond a reasonable doubt." United States v. Kayode, 254 F.3d 204, 212 (D.C. Cir. 2011) (citation omitted). A judgment of acquittal is warranted "only when there is no evidence upon which a reasonable mind might find guilt beyond a reasonable doubt." United States v. Byfield, 928 F.2d 1163, 1165 (D.C. Cir. 1991) (citation omitted); see also United States v. Foster, 783 F.2d 1087, 1088 (D.C. Cir. 1986) ("[W]here the evidence viewed in the light most favorable to the prosecution is such that a reasonable juror must have a reasonable doubt as to the existence of any of the essential elements of the crime, a motion for judgment of acquittal must be granted.") (citation omitted). The evidence "need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt." United States v. Maxwell, 920 F.2d 1028, 1035 (D.C. Cir. 1990) (citation omitted). "There is no requirement of any direct evidence against the defendant; the evidence may be entirely circumstantial." United States v. Poston, 902 F.2d 90, 94 n.4 (D.C. Cir. 1990).
A. Intent to Persuade, Induce, Entice, or Coerce
The Defendant argues that the evidence presented by the Government is insufficient to permit a rational trier of fact to find beyond a reasonable doubt that the Defendant intended to persuade, induce, entice, or coerce the fictitious minors to engage in illicit sexual activity. Specifically, the Defendant argues that if the jury were to credit the Government's evidence "what they would have would be that Dr. Hite entertained the notion and had the intent at some future time to induce a minor to have sex." 2/8/13 PM Tr. 30:23-31:1 (emphasis added). On the record before the Court at the time the Defendant made his motion, the Court finds a reasonable trier of fact could find beyond a reasonable doubt each of the essential elements of the attempt offenses with which the Defendant was charged.
As an initial matter, the Defendant's argument is based on a flawed understanding of the completed offense under section 2422(b). "Section 2422(b) criminalizes an intentional attempt to achieve a mental state-a minor's assent." United States v. Berk, 652 F.3d 132, 140 (1st Cir. 2011); see 6/30/12 Mem. Op., ECF No. , at 27. The offense is complete at the point a defendant obtains the minor's assent; the timing of the sexual activity is irrelevant. Thus, the relevant question for purposes of this motion is whether the Government introduced sufficient evidence from which a reasonable trier of fact could conclude that the Defendant intended to persuade, induce, entice, or coerce the fictitious minors to engage in illicit sexual activity regardless of when the illicit sexual activity is supposed to take place.
With respect to the twelve-year-old girl, the Government introduced evidence that during the first Yahoo chat with JP on February 1, 2012, the Defendant: (1) expressed a desire to engage in sexual activity with the girl, Gov't Ex. 5 at 1 ("damn-love to get my tongue in that"); (2) asked what sexually excited the girl, id. at 2; (3) suggested a sexual encounter with himself, JP and the girl, id. at 2 ("BOTH of you would excite me"), id. ("would love to do a bi 3 way with you and a yng girl"); (4) discussed what days of the week would be most convenient for an encounter with the girl, id. at 3; (5) indicated JP could show the girl a picture of the Defendant, id. at 3; (6) said he would "love to see" a picture of the girl, id. at 4; (7) thanked JP "for the potential experience"; and (8) twice said "let me know what she thinks, " id. at 4, 5. During subsequent chats, the Defendant (1) asked if the girl liked the idea of a sexual encounter with JP and Defendant, Gov't Ex. 5 at 10; (2) offered that he was "willing to take it slowly at her pace, " id.; (3) said he "can't wait to see her naked, " id.; (4) when he was not available on the date suggested by JP to engage in sexual activity with the girl, the Defendant indicated when he would be available, id. at 11; and (5) stated that if JP had custody of the girl "any other time, let me know, " id. Subsequent discussions focused on the three-year-old, but the Defendant indicated that he still also wanted to meet the girl, Gov't Ex. 5 at 26, and asked JP to "tell her hello from me-can't wait to meet her, " id. at 46. The Defendant raised the issue that he had not had a vasectomy and would need to "be careful with" the girl, but would "adjust" to the fact JP would require him to wear a condom when having sex with the girl. Id. at 26-27. On this record, viewing the evidence in the light most favorable to the Government, there is more than sufficient evidence to permit a rational trier of fact to find beyond a reasonable doubt that during his conversations with JP, the Defendant at that time intended to persuade, induce, entice, or coerce the fictitious twelve-year-old girl to engage in sexual activity.
The evidence was likewise sufficient for the three-year-old boy. The Defendant first suggested the Defendant engage in sexual activity with the boy. Gov't Ex. 5 at 13 ("count me IN with him also"); id. ("would love to help you with him sometime"). The Defendant proposed scenarios for engaging in sexual activity with the boy, e.g., id. at 21-23, and told JP to "make sure you have some" Benadryl to give the boy as a sedative, id. at 28, 34 ("we need Benadryl for him when we meet"). The Defendant emphasized that he was "VERY interested" in the boy, and that the Defendant wanted "real time with him." Id. at 31. The Defendant proposed "meet[ing] just us 2 before the introduction of the hotties just to make sure we are comfortable." Gov't Ex.
5 at 19, 24; see also id. at 44 ("if us 2 are totally comfortable---on to the REAL fun").
The Defendant and JP agreed to meet on February 17, 2012, the Defendant indicated what time he would arrive, and they decided to have dinner once the Defendant arrived. Id. at 36. The Defendant asked what time the boy would arrive the following day, and asserted that he "w[ould] do anything you want to enable this arrangement." Id. at 37. The Defendant asked if he should plan on spending Friday night so they could "play Saturday, " or leave Friday evening and return Saturday. Id. at 38. The Defendant asked how JP "want[ed] to start with him on Saturday, " and asked if he should bring bananas, or if "jelly or honey might work better" for engaging the boy in sexual activity. Id. at 38-39; see also id. at 40 ("think our plan is as you say-games and benedryl [sic]"). The Defendant later indicated he "got a gag gift of a jar of peanut butter and grape jelly pre-mixed---hehe---THAT should be fun." Id. at 45. The Defendant and JP also discussed in detail what sexual acts they might perform on the boy. Id. at 41-42.
JP called the Defendant on February 17, 2013, and the Defendant indicated that he was trying to relay his "paranoia" about meeting up with JP, stating that "I would enjoy it immensely and I think you're probably, would be. I just need... you know, I just need a little bit more confirmation." JP offered to "do a webcam" showing JP engaging in sexual activity with the boy the following day, to which the Defendant replied "I was hoping that you would suggest something like this, " and "if I know that, you know, that you're, you know, legit; then I'm there." JP indicated that he was returning the boy to his parents on Sunday evening rather than having the parents pick up the boy, to which the Defendant replied "you know that would be absolutely, you know, perfect." The Defendant further indicated that "I owe you dinner, for sure, tomorrow night... tomorrow night is my treat." JP suggested that take-in from McDonald's would be the easiest, and that the only thing the boy eats is nuggets. The Defendant stated "[t]hat will work."
The fact that the Defendant did not ultimately travel to Washington, D.C., is not dispositive of the Defendant's intent; the jury need only find that the Defendant intended to coerce the three-year-old to engage in sexual activity, regardless of whether the Defendant intended to ultimately engage in the sexual activity. See United States v. Goetzke, 494 F.3d 1231, 1236 (9th Cir. 2007) ("Travel by a defendant to meet a potential victim is probative, but not required, to advance and verify an intent to persuade, induce, entice, or coerce."). The Defendant's conversations prior to February 17, as well as the Defendant's statements regarding the proposed webcam with the boy provide a sufficient basis for the jury to make the required finding regarding the Defendant's intent to coerce the child. Viewing the evidence in the light most favorable to the Government, the Government introduced sufficient evidence from which a reasonable trier of fact could conclude beyond a reasonable doubt that the Defendant intended to persuade, induce, entice, or coerce the fictitious three-year-old boy to engage in sexual activity.
B. Substantial Step
After a colloquy with the Court, the Defendant's argument appeared to shift from the issue of intent to the issue of whether the Government proved the Defendant took a substantial step towards completion of the offenses. 2/8/13 PM Tr. 34:8-35:2. "[W]hile words and discussions would usually be considered preparations for most crimes, a specific discussion could be so final in nature that it left little doubt that a crime was intended and would be committed." United States v. Pratt, 351 F.3d 131, 136 (4th Cir. 2003); accord, e.g., United States v. Broussard, 669 F.3d 537, 550 (5th Cir. 2012) ("[T]he prohibited act of persuasion can occur over a distance, as the statute expressly contemplates, and logic would appear to dictate that having discussions with TL and KH about meeting to have sex is a substantial step toward persuading them to have sex.").
Beginning with the twelve-year-old girl, the Government submitted sufficient evidence to show the Defendant went beyond mere preparations. The Defendant discussed what days he would or would not be available to engage in sexual activity with the girl and suggested alternative dates when he was not available on the day suggested by JP, Gov't Ex. 5 at 3, 11, discussed what sexual activity with the girl would be permitted, id. at 26-27, raised the issue that he had not had a vasectomy and would have "to be careful" with the girl, id., and followed up regarding JP's conversations with the girl as to whether she would be interested in engaging in sexual activity with the Defendant and JP, id. at 10. With respect to the three-year-old, the Defendant selected a date to engage in sexual activity with the boy, id. at 36, discussed where to park when he arrived in Washington, D.C., and what car he would drive, id. at 25, 57, discussed in detail what sexual acts they might perform on the boy, id. at 41-42, and indicated that he had a jar of peanut butter and jelly to use during sexual activity with the boy, id. at 45. The Defendant also searched for directions to the Verizon Center in Washington, D.C. 2/8/13 AM Tr. 137:20-138:4. During the February 17, 2012, conversation, the Defendant discussed whether the weather would be an issue when he drove to Washington, D.C., the following day, as well as the parties' plan for dinner following the Defendant's arrival. As the Third, Sixth, Ninth, and Tenth Circuits have held, "when a defendant initiates conversation with a minor, describes the sexual acts that he would like to perform on the minor, and proposes a rendezvous to perform those acts, he has crossed the line toward persuading, inducing, enticing, or coercing a minor to engage in unlawful sexual activity." Goetzke, 494 F.3d at 1236; see also 6/30/12 Mem. Op. at 25-26 (collecting cases).
For the foregoing reasons, the Court finds that, drawing all reasonable inferences in favor of the Government, the Government introduced sufficient to permit a rational trier of fact to find the Defendant intended to intended to persuade, induce, entice, or coerce the fictitious minors to engage in sexual activity, and took a substantial step towards completion of the offense as to each minor, beyond a reasonable doubt. Accordingly, the Defendant's motion for a judgment of acquittal is DENIED. An appropriate Order accompanies this Memorandum Opinion.