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United States v. Hillie

United States District Court, District of Columbia

January 5, 2017

UNITED STATES OF AMERICA,
v.
CHARLES HILLIE, Defendant.

          MEMORANDUM OPINION

          Ketanji Brown Jackson, United States District Judge.

         A federal grand jury has indicted Charles Hillie ("Hillie" or "Defendant") of seven counts of production and possession of child pornography in violation of 18 U.S.C. §§ 2251 and 2252, and ten counts of child sexual abuse in violation of District of Columbia law. (See Superseding Indictment ("Indictment"), ECF No. 9, at 1-14 (citing 18 U.S.C. §§ 2251(a), (e), 2252(a)(4)(B); D.C. Code §§ 22-3008, -3009, -3009.02, -3020(a)(2), (a)(5)).)[1] Hillie has filed seven separate motions challenging various aspects of this prosecution. (See ECF Nos. 17-23.)[2] Before this Court at present is the motion in which Hillie raises questions about the sufficiency of the indictment, which charges Hillie with multiple counts of nearly identical offenses. (See Motion to Dismiss Indictment ("Def.'s Mot."), ECF No. 19.) According to Hillie, the language of the charging document does not provide an adequate description of the “place and time” that the alleged offenses took place, nor does it specify “the nature or type of ‘sexually explicit conduct'” at issue. (Id. at 7.) Instead, says Hillie, the indictment merely quotes the broad language of the child pornography statutes without including any facts that specify the particular conduct of Hillie's that is the basis of the government's charges. (See id.; see also Reply to United States' Suppl. Resp. to Def.'s Mot. (“Def.'s Suppl. Br.”), ECF No. 42, at 3-4.) Hillie argues that these deficiencies amount to insufficient notice of the “nature of the accusations against him” and prevent him from “rais[ing] a double jeopardy defense in the event he is charged with similar offenses in the future” (Def.'s Mot. at 7-8), all in violation of his Fifth Amendment right to due process and Sixth Amendment right to be appraised of the nature and cause of the criminal charges against him (see Id. at 5-8).

         For the reasons explained below, this Court agrees with Hillie's arguments, at least as far as the federal child pornography counts are concerned. In this Court's view, the challenged indictment fails to provide minimally required factual information regarding the conduct of Hillie's that the government says constitutes production and possession of child pornography in violation of federal law (Counts One through Seven), and as a result, the Court concludes that Hillie's Motion to Dismiss the Indictment must be GRANTED IN PART, and that Counts One through Seven of the indictment must be DISMISSED WITHOUT PREJUDICE. Because the dismissal of the federal child pornography counts impacts this Court's continued exercise of jurisdiction over the remaining state law charges, this Court's dismissal order will be HELD IN ABEYANCE for a period of 14 days, to provide the government with an opportunity to consider the path forward and, if it so chooses, seek a superseding indictment that comports with the Constitution and the Federal Rules.

         I. BACKGROUND

         A. The Criminal Charges

         On March 22, 2016, a federal grand jury returned a 17-count indictment against Hillie, and the government filed that charging document with this Court. (See Indictment, ECF No. 9.)[3] The indictment charged Hillie with seven violations of federal law: two counts of Production of Child Pornography in violation of 18 U.S.C. § 2251(a) (Counts One and Two); one count of Possession of Child Pornography in violation of 18 U.S.C. § 2252(a)(4) (Count Three); and four counts of Attempted Production of Child Pornography in violation of 18 U.S.C. § 2251(a) and (e) (Counts Four, Five, Six, and Seven). (See Indictment at 1-6.) The indictment also alleged that Hillie committed several serious child sex abuse offenses in violation of D.C. law: one count of First Degree Child Sexual Abuse with Aggravating Circumstances in violation of D.C. Code §§ 22-3008, -3020(a)(2), and (a)(5) (Count Eight); eight counts of Second Degree Child Sexual Abuse with Aggravating Circumstances in violation of D.C. Code §§ 22-3009, -3020(a)(2), and (a)(5) (Counts Nine, Ten, Eleven, and Thirteen through Seventeen); and one count of Second Degree Sexual Abuse of a Minor with Aggravating Circumstances in violation of D.C. Code §§ 22-3009.02, -3020(a)(2), and (a)(5) (Count Twelve). (See Indictment at 6-14.)

         1. The Charged Federal Offenses

         The child pornography counts (Counts One through Seven) charge Hillie with violations of two statutory provisions: namely, 18 U.S.C. §§ 2251 and 2252, as amended. Congress first enacted these statutes in the Protection of Children Against Sexual Exploitation Act of 1977, Pub. L. No. 95-225, 92 Stat. 7, in order to sanction the use of minors in sexually explicit depictions and thereby eradicate the harms flowing from the clandestine distribution of child pornography. See Am. Library Ass'n v. Barr, 956 F.2d 1178, 1181 (D.C. Cir. 1992) (summarizing the legislative history of 18 U.S.C. §§ 2251, 2252, and 2256). Section 2251(a) broadly criminalizes the production of child pornography; it punishes anyone who, in connection with interstate commerce, “employs, uses, persuades, induces, entices, or coerces any minor to engage in . . . any sexually explicit conduct for the purpose of producing any visual depiction of such conduct[.]” 18 U.S.C. § 2251(a). Section 2252(a) makes knowing possession of child pornography unlawful; specifically, possession of “1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction . . . if-(i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (ii) such visual depiction is of such conduct[.]” Id. § 2252(a)(4)(B).

         The term “sexually explicit conduct”-which appears in both child pornography statutes-is defined as, inter alia, “actual or simulated . . . lascivious exhibition of the genitals or pubic area of any person[.]” Id. § 2256(2)(A)(v). Furthermore, Congress has criminalized not only the completed acts of producing and possessing child pornography, but also the attempt to commit those crimes. See Id. § 2251(e) (prescribing punishment for “[a]ny individual who violates, or attempts or conspires to violate, [§ 2251(a)]”); see also Id. § 2252(b)(2) (prescribing punishment for “[w]hoever violates, or attempts or conspires to violate, [§ 2252(a)(4)]”). To prove attempt, the government must show that the defendant (1) took a “substantial step” toward committing the crime, such as “utiliz[ing] another person to perform an element” of the offense, and (2) acted “with the clear intent to cause the harm proscribed by the statute.” United States v. Hite, 769 F.3d 1154, 1162 (D.C. Cir. 2014).

         2. The Language In The Indictment

         Counts One and Two of the indictment against Hillie-the production counts- are substantively identical with the exception of the date ranges alleged. Count One alleges that the violative conduct occurred sometime between July 1, 2008, and August 30, 2010, while Count Two charges Hillie with a violation that allegedly occurred sometime between July 1, 2008, and August 30, 2011. These two counts otherwise state the allegations against Hillie in identical terms, using solely the words of the statute, as follows:

Between on or about July 1, 2008 and on or about [either August 30, 2010 or August 30, 2011], in the District of Columbia, the defendant, CHARLES HILLIE, did knowingly and intentionally employ, use, persuade, induce, entice, and coerce J.A.A., [a] . . . minor female, to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct, knowing and having reason to know that such visual depiction would be transported or transmitted using any means or facility of interstate or foreign commerce or knowing and having reason to know that such visual depiction would be transported or transmitted in or affecting interstate or foreign commerce; and which visual depiction was produced or transmitted using materials that had been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer; and the visual depiction was transported or transmitted using any means or facility of interstate or foreign commerce or the visual depiction was transported or transmitted in or affecting interstate or foreign commerce.

(Indictment at 1-2.)

         Counts Four, Five, Six, and Seven-the attempted production counts-also recite this same statutory language with respect to the underlying conduct, but each of these counts adds the words “attempt to” after “did knowingly and intentionally[.]” (Id. at 3- 5; see, e.g., id. at 3 (stating, as to Count Four, that Hillie “did knowingly and intentionally attempt to employ, use, persuade, induce, entice, and coerce J.A.A.” (emphasis added)).) Furthermore, as with the first two counts, the four attempt counts differ slightly with respect to the date ranges upon which the underlying conduct allegedly occurred. (See Id. at 3 (Count Four covers attempted conduct during a period ranging from May 1, 2007, to May 31, 2012); id. at 4 (Count Five covers attempted conduct during a period ranging from July 1, 2008, to August 30, 2011-the same date range as Count Two); id. at 5 (Count Six covers attempted conduct that allegedly occurred on October 12, 2011); id. (Count Seven covers attempted conduct during a period ranging from July 1, 2011, to May 31, 2012).)

         Lastly, the child-pornography-possession count (Count Three) reads:

Between on or about July l, 2008, and on or about August 30, 2011, in the District of Columbia, the defendant, CHARLES HILLIE, did knowingly possess at least one matter which contained any visual depiction that had been shipped or transported using any means or facility of interstate or foreign commerce, or in or affecting interstate or foreign commerce; and which was produced using materials which had been mailed or shipped or transported using any means or facility of interstate or foreign commerce, or in or affecting interstate or foreign commerce; and the production of such visual depiction involved the use of an eleven-to-fourteen-year-old minor female engaging in sexually explicit conduct, and such visual depiction was of such conduct.

(Id. at 3.)

         3. The D.C. Sexual Abuse Charges

         In addition to the federal child pornography offenses described above, the indictment charges Hillie with one count of sexual abuse of a minor (Count Twelve) and nine counts of sexual abuse of a child in the first and second degree (Counts Eight through Eleven and Thirteen through Seventeen), all in violation of District of Columbia law. (See Indictment at 6-14.)[4] The relevant statutory provisions penalize anyone who, “being 18 years of age or older, ” has sexual contact with a “minor” with whom he or she has a significant relationship, D.C. Code § 22-3009.02 (“Second degree sexual abuse of a minor”), or who engages in a sexual act or sexual contact with a “child” at least 4 years younger than the offender, see Id. § 22-3008 (“First degree child sexual abuse”); id. § 22-3009 (“Second degree child sexual abuse”). The D.C. Code defines a “sexual act” as, inter alia, “[t]he penetration, however slight, of the anus or vulva by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person[, ]” id. § 22-3001(8)(C), and “sexual contact” as “the touching with any clothed or unclothed body part or any object, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person” with the same intent, id. § 22-3001(9).

         With respect to the state law sex abuse charges that have been brought against Hillie, the indictment specifies certain sexual acts and sexual conduct that Hillie is alleged to have undertaken with two different children. Each count tracks the D.C. Code's language and provides somewhat different date ranges. (See Indictment at 6- 14.) Furthermore, and significantly for present purposes, each count alleges the specific act of Hillie's that is the basis of the charge. (See, e.g., id. at 6 (alleging that between July 1, 2007, and August 30, 2010, Hillie “engaged in a sexual act with that child, that is, penetration of J.A.A.'s vulva by CHARLES HILLIE's finger”); id. at 7 (alleging that between July 1, 2007, and August 30, 2009, Hillie “engaged in sexual contact with that child, that is, contact between CHARLES HILLIE's hand and J.A.A.'s buttocks”); id. at 8 (charging “contact between CHARLES HILLIE's hand and J.A.A.'s breast” between July 1, 2007, and May 31, 2012).) The sex abuse counts further note (a) the relationship between Hillie and the two victims (see, e.g., id. at 6 (“HILLIE had a significant relationship to J.A.A., in that [he] . . . was the paramour of the person who was charged with any duty or responsibility for the health, welfare, or supervision of J.A.A.”); id. at 10 (noting that Hillie and J.A. had the same relationship)); (b) the age difference between Hillie and that alleged victim (see id.); and (c) the fact that Hillie resided in the same dwelling as the victims when the abusive conduct allegedly occurred (see id.).

         B. The Underlying Facts

         The facts that underlie Hillie's prosecution are described in various memoranda that the government has filed in this Court, and are as follows. Beginning in 2005, Charles Hillie (who was born in November of 1983) became romantically involved with a woman who is referred to throughout the parties' briefs by the initials “W-1” or “Jo.A.” (See Gov't's Mot. to Admit Other Crimes Evid., ECF No. 14, at 2.) Jo.A. is “the mother of the two [alleged] victims” involved in this case: “J.A.A. (born in February 1997) and J.A. (born in May 2002).” (Id.) The government maintains that “[b]etween 2005 and his arrest in 2015, the defendant lived on and off with the child victims and [their mother].” (Id.) Moreover, at all times relevant to this case, Hillie, Jo.A., J.A.A. and J.A. resided at two locations: first, “an apartment on Douglas Road in Southeast, Washington, D.C.[, ]” where they lived between August of 2007 and June of 2012; and second, “a residence on Good Hope Court in Southeast, Washington, D.C.[, ]” where they lived beginning in the summer of 2012. (Id.)

         J.A., the younger of the two sisters, was the first to speak up about the alleged sexual abuse. In December of 2012, J.A.'s biological father retained custody of her after Hillie purportedly “struck J.A. in the face” for trying to tell her mother about the abuse, “causing her to bleed severely from her mouth and nose.” (Gov't's Notice, ECF No. 15, at 3.) According to the government, J.A. confided in her biological father shortly after moving in with him, telling him about Hillie's conduct, which led her father to file a formal report with the police. (See id.) On January 23, 2013, the D.C. Children's Advocacy Center interviewed J.A. (who was 10 years old at the time); during the interview, J.A. “disclosed multiple instances of sexual abuse by the defendant” relating to both her and her sister. (Id.) J.A.'s allegations prompted D.C. government officials to launch a formal investigation into Hillie. (See Id. at 3 n.1.)

         On March 29, 2013, “J.A. was shown a confirmation photograph of the defendant[, ]” who she called “Mr. Charlie[, ]” the man “who had ‘touched' her[.]” (Gov't's Resp. to Def.'s Mot. to Suppress Identification, ECF No. 26, at 3.) The police also questioned J.A.'s sister, J.A.A., who was 16 years old at that time and was living with her mother and Hillie. (See Id. at 2.) When questioned, J.A.A. denied J.A.'s allegations, and also said that J.A. had been untruthful in the past. (See id.; Gov't's Opp'n to Def.'s Mot. to Suppress Tangible & Elec. Evid., ECF No. 31, at 2-3.) J.A.A.'s adamant refusal to corroborate J.A.'s account led the police to suspend their investigation into the child sex abuse allegations. (See Gov't's Notice at 3 n.1.)

         The investigation was revived the following year, however, when, in August of 2014, J.A.A. reversed course and admitted to the investigators that she had previously lied about not being abused by Hillie. (See Gov't's Resp. to Def.'s Mot. to Suppress Identification at 3.) J.A.A. said that “[t]he reason [she] was silent about the defendant's abuse was because her mother . . . had warned [her] that their family would be broken apart if [she] disclosed the truth[, ]” and had specifically directed J.A.A. to lie to the authorities. (Gov't's Mot. to Admit Other Crimes Evid. at 4.) J.A.A. said that she had agreed to lie about the abuse in exchange for her mother's promise that Hillie “would never touch either of the girls again.” (Id.) However, according to J.A.A., “the defendant [did] touch[] [her] on the buttocks again” and as a result, she decided to tell the authorities about Hillie's conduct. (Id.) Thereafter, “J.A.A. reported to Child Protective Services that the defendant, her mother's boyfriend named ‘Charles Hillie, ' had been sexually abusing her for a period of time.” (Gov't's Resp. to Def.'s Mot. to Suppress Identification at 3.) Moreover, and significantly for present purposes, J.A.A. told the police that, in 2011, she had discovered nude photographs of herself on the family's pink laptop computer, and that the photos had been taken without her knowledge. (See Gov't's Opp'n to Def.'s Mot. to Suppress Tangible & Elec. Evid. at 3.) “The investigation was thus re-initiated” in earnest. (Gov't's Resp. to Def.'s Mot. to Suppress Identification at 3.) To this end, on August 8, 2014, J.A.A. was shown a confirmatory photograph of the defendant, who she identified as “Charles Hillie, ” and who she claimed had “‘touched' her on her ‘butt, vagina, breast.'” (Id.)

         On July 29, 2015, the government filed a criminal complaint in the Superior Court of the District of Columbia, accusing Hillie of first and second degree child sexual abuse with respect to J.A.A. and J.A. (See Superior Court Criminal Complaint, Attach. A to Gov't's Opp'n to Def.'s Mot. to Suppress Tangible & Elec. Evid., ECF No. 31-2; see also Def.'s Mot. at 2.) Thereafter, law enforcement officers secured a search warrant that authorized government agents to locate and seize “[a] pink laptop computer, black camera, and any other electronic equipment capable of taking or storing photographs relating to sexual abuse[.]” (Aug. 5, 2015 Search Warrant, Attach. B to Gov't's Opp'n to Def.'s Mot. to Suppress Tangible & Elec. Evid., ECF No. 31-3, at 1.) Officers arrested Hillie at the same time that they executed the August search warrant; during the search, they recovered a “black and silver camera” and a “pink laptop in the same bedroom where the defendant” was hiding. (Gov't's Opp'n to Def.'s Mot. to Suppress Tangible & Elec. Evid. at 6.) With these items secured, the officers then requested and received a separate warrant to search the contents of the pink laptop and black camera for “[e]vidence of sexual abuse to include digital files, records and photographs[.]” (Sep. 9, 2015 Search Warrant, Attach. C to Gov't's Opp'n to Def.'s Mot. to Suppress Tangible & Elec. Evid., ECF No. 31-4, at 1.)

         During the subsequent forensic examination of the laptop's contents, multiple deleted videos that Hillie had created surreptitiously using a hand-held visual recording device were allegedly identified. (See Gov't's Opp'n to Def.'s Mot. to Suppress Tangible & Elec. Evid. at 7.) The videos purportedly capture Hillie “placing the recording device in hidden locations in [J.A.A.'s] bedroom and bathroom prior to J.A.A. entering the room, and [he] is then seen retrieving the recording device after J.A.A. leaves the room.” (Id.) There are apparently six such videos, each of which showcases J.A.A. in the nude (or nude from the waist down) ...


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