United States District Court, D. Columbia.
For Paul David Hite(1), Appeals court case numbers: 13-3066, 13-3072, Defendants: Barry J. Pollack, LEAD ATTORNEY, MILLER & CHEVALIER CHARTERED, Washington, DC; Claire G. Cardwell, LEAD ATTORNEY, STONE, CARDWELL & DINKIN, PLC, Richmond, VA; James M. Nachman, PRO HAC VICE, LAW OFFICE OF JAMES M. NACHMAN, Richmond, VA.
UNITED STATES DISTRICT JUDGE.
Paul David Hite was convicted by a jury on two counts of attempted coercion and enticement of a minor in violation of 18 U.S.C. § 2422(b) on February 13, 2013. On July 2, 2013, this Court sentenced Dr. Hite to 264 months of imprisonment followed by supervised release for a period of 120 months on each count to run concurrently, and imposed a $500,000.00 fine. Dr. Hite filed a timely appeal and, on October 21, 2014, the Court of Appeals for the District of Columbia Circuit (" D.C. Circuit" ) issued an opinion vacating Dr. Hite's conviction and remanding the case for a new trial on the grounds that the jury instructions failed to accurately state the elements of the statute under which Dr. Hite was convicted. United States v. Hite, No. 13-3066, 769 F.3d 1154, 2014 WL 5343626, at *9-*10 (D.C. Cir. Oct. 21, 2014). The D.C. Circuit rejected Dr. Hite's primary argument regarding statutory interpretation, holding " 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." . The mandate has not yet issued because the Clerk of the D.C. Circuit, pursuant to an order, is withholding the issuance of the mandate until seven days after disposition of any timely petition for rehearing or for rehearing en banc. United States v. Hite, No. 13-3066, Clerk's Order (D.C. Cir. Oct. 21, 2014).
Presently before the Court is Dr. Hite's  Motion for an Order Setting Conditions of Release. Dr. Hite seeks release pending re-trial, arguing that conditions of release can be set that reasonably assure his appearance at re-trial and reasonably assure that he is not a danger to the community. Def.'s Mot. at 1. The government opposes Dr. Hite's release and requests that he remain detained. Govt.'s Opp'n at 1. Upon consideration of the pleadings, the relevant legal authorities, and the record as a whole, the Court finds that Dr. Hite is not eligible for release at this time. Accordingly, the Court shall DENY WITHOUT PREJUDICE Dr. Hite's  Motion for an Order Setting Conditions of Release for the reasons described herein.
This Court has jurisdiction to consider a motion for release prior to the D.C. Circuit's issuance of a mandate. United States v. Jones, No. 08-3030, Order, (D.C. Cir. Mar. 3, 2011). In addressing a motion for release, the Court must determine whether it is appropriate to treat Dr. Hite: (i) pursuant to 18 U.S.C. § 3142 as a defendant awaiting a new trial; (i) pursuant to 18 U.S.C. § 3143(b) as a defendant found guilty with the defendant seeking appeal; or (iii) pursuant to 18 U.S.C. § 3143(c) as a defendant found guilty with the government seeking appeal. See id. Although Dr. Hite's conviction was reversed, his appeal is still considered " pending" because the D.C. Circuit has not yet issued its mandate. United States v. Wright, Crim. No. 09-129-03, 2013 WL 6407031, at *1 (D.D.C. Dec. 9, 2013); United States v. Jones, 800 F.Supp.2d 90, 92 (D.D.C. 2011). Accordingly, the Court shall treat Dr. Hite as a defendant found guilty and seeking appeal pursuant 18 U.S.C. § 3143(b). Moreover, because Dr. Hite is appealing the conviction of a crime of violence as defined in 18 U.S.C. § 3156(a)(4)(C) and a crime carrying a maximum sentence of life imprisonment, section 3143(b) directs that the Court shall order Dr. Hite's continued detention.
However, pursuant to 18 U.S.C. § 3145(c) the Court may still grant Dr. Hite's motion for release if Dr. Hite demonstrates: (1) by clear and convincing evidence that he is not likely to flee or pose a danger to the safety of any other person or the community if released; and (2) " that there are exceptional reasons why [his] detention would not be appropriate." See Wright, 2013 WL 6407031, at *1 (citing 18 U.S.C. § § 3143(b)(2), 3145(c)).
After the jury returned the guilty verdict, the government made an oral motion requesting that Dr. Hite be detained pending sentencing pursuant to 18 U.S.C. § 3143, and the Court heard the parties'
arguments on this issue. Tr. 9:7--16:17 (Feb. 13, 2013), ECF No. . The Court ultimately found that Dr. Hite had not met his burden of establishing by clear and convincing evidence that he is not likely to flee or to pose a danger to the safety of any other person or ...