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United States v. Hite

United States District Court, D. Columbia.

December 10, 2014

UNITED STATES OF AMERICA
v.
PAUL DAVID HITE, Defendant

For Paul David Hite, Appeals court case numbers: 13-3066, 13-3072, Defendant: Barry J. Pollack, LEAD ATTORNEY, MILLER & CHEVALIER CHARTERED, Washington, DC USA; Claire G. Cardwell, LEAD ATTORNEY, PRO HAC VICE, STONE, CARDWELL & DINKIN, PLC, Richmond, VA USA; James M. Nachman, PRO HAC VICE, LAW OFFICE OF JAMES M. NACHMAN, Richmond, VA USA.

Page 34

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.

This matter comes before the Court on Defendant Paul David Hite's [186] Motion for an Order Setting Conditions of Release Pursuant to 18 U.S.C. § 3142. 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 Memo. at 1. The government opposes Dr. Hite's release and requests that he remain detained pending re-trial. Govt.'s Opp'n at 1. Upon consideration of the pleadings,[1] 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 Dr. Hite's [186] Motion for an Order Setting Conditions of Release Pursuant to 18 U.S.C. § 3142 for the reasons described herein.

BACKGROUND

On February 21, 2012, Paul David Hite was arrested on the charge of attempted coercion and enticement of a minor in violation of 18 U.S.C. § 2422(b). Following a preliminary/detention hearing on February 29, 2012, Magistrate Judge Alan Kay, applying 18 U.S.C. § 3142, ordered that Dr. Hite be released into the community while he was awaiting trial. Order (Mar. 9, 2012), ECF No. [7]. As part of his pretrial conditions of release, Dr. Hite was ordered to 24-hour home confinement subject to

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supervision by Pretrial Services and subject to electronic and/or GPS monitoring. Dr. Hite's parents were required to serve as his custodians and live in the house with Dr. Hite. Dr. Hite was required to post a property bond through a lien on the entire equity of his house in Richmond, Virginia, worth $650,000.[2] Dr. Hite also was ordered to stay away from all minor children, not access the internet, and not leave the Richmond, Virginia area, except to appear in Court. Id. The government appealed the release order which was affirmed in its entirety by then-Chief Judge Royce C. Lamberth. Memo. & Order (Mar. 9. 2012), ECF No. [6].

On February 13, 2013, 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). 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 3145, which this Court granted after hearing argument on the issue. Tr. 9:7-17:1 (Feb. 13, 2013), ECF No. [164]. The Court denied Dr. Hite's written motion for release pending sentencing, filed after the Court's oral ruling. Def.'s Mot. for Release Pending Sentencing, ECF No. [100]; Order (Jun. 20, 2013), ECF No. [134]. 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. Judgment, ECF No. [156].

Following sentencing, Dr. Hite filed a timely appeal of his conviction with the United States Court of Appeals for the District of Columbia Circuit (" D.C. Circuit" ). Dr. Hite also filed with this Court a motion requesting his release pending appeal which the Court denied pursuant to 18 U.S.C. § 3145.[3] Def.'s Mot. for Release Pending Appeal, ECF No. [120]; Order (July 30, 2013), ECF No. [158].

On October 21, 2014, the 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. See generally United States v. Hite, 769 F.3d 1154 (D.C. Cir. 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." Id. at 1158, 1160-66. On October 23, 2014, Dr. Hite filed a motion requesting his release as a defendant awaiting a new trial pursuant to 18 U.S.C. § 3142. Def.'s Mot. for Order Setting Conditions of Release, ECF No. [181]. The Court found that Dr. Hite was properly treated as a defendant found guilty and seeking appeal pursuant to 18 U.S.C. § § 3143(b) and 3145(c) at that time because the mandate had not yet issued from the D.C. Circuit. Memo. Op. (Oct. 29, 2014), at 2-3, ECF No. [185]. Applying that legal standard, the Court denied without prejudice the motion for release. Order (Oct. 29, 2014), ECF No. [184]. The mandate vacating Dr. Hite's conviction and remanding this matter for a new trial issued from the D.C. Circuit on November 25, 2014. Mandate, ECF No. [187]. Dr. Hite now seeks release as a

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defendant awaiting a new trial pursuant to 18 U.S.C. § 3142.

LEGAL STANDARD

The Bail Reform Act, 18 U.S.C. § 3141 et seq., lays out limited circumstances under which a defendant may be detained pending trial. The Act provides that a defendant may be detained if the district court finds by clear and convincing evidence " that no condition or combination of conditions will reasonably assure the safety of any other person and the community . . . ." 18 U.S.C. § 3142(f). Further, a defendant may be detained under the Act if the district court finds by a preponderance of the evidence " that no combination of conditions--either those set out in the Bail Reform Act itself or any others that the magistrate or judge might find useful--can 'reasonably' assure that the defendant will appear for trial." United States v. Xulam, 84 F.3d 441, 442, 318 U.S.App.D.C. 1 (D.C. Cir. 1996) (per curiam); see also 18 U.S.C. § 3142(g).

However, where there is probable cause to believe that a defendant has committed an offense involving a minor victim, a rebuttable presumption arises that no conditions or combination of conditions will reasonably assure either the defendant's appearance or the safety of the community.[4] 18 U.S.C. § 3142(e)(3)(E). " [T]he presumption operate[s] at a minimum to impose a burden of production on the defendant to offer some credible evidence contrary to the statutory presumption." United States v. Alatishe, 768 F.2d 364, 371, 247 U.S.App.D.C. 247 (D.C. Cir. 1985). The district court examines the following factors in making its determination:

(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, a violation of section 1591, a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including--
(A) the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, ...

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