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United States v. Hillie

United States District Court, District of Columbia

January 29, 2018




         Defendant Charles Hillie is charged in a superseding indictment with seven counts of production, attempted production, and possession of child pornography, in violation of federal law, and ten counts of child sexual abuse, in violation of District of Columbia law. (See Superseding Indictment (“Indictment”), ECF No. 44.)[1] The federal counts in the superseding indictment relate to the government's allegation that Hillie surreptitiously video-recorded his live-in girlfriend's underage daughter as she removed her clothes, applied creams and lotions to her naked body, bathed, used the toilet, washed and groomed herself, and performed other intimate activities in what she thought was the privacy of her own bedroom and bathroom. In his motion to dismiss, Hillie argues that “[n]one of the videos . . . capture[s] [the victim] engaging in any conduct that could remotely be considered lascivious” (Def.'s Second Mot. to Dismiss Counts 1-7 of the Indictment (“Def.'s Mot.”), ECF No. 50, at 4), and thus, the “visual depictions in each of these counts do not constitute child pornography as a matter of law” (id. at 1).[2] Hillie further maintains that the government has indicted him “based largely on a flawed interpretation of what constitutes child pornography, ” because there is, in fact, “absolutely no evidence to suggest that Mr. Hillie attempted to produce child pornography.” (Id.) Not surprisingly, the government disagrees with Hillie's contentions, and argues that this Court should uphold the various child pornography charges that have been brought against Hillie in this case. (See generally Gov't's Opp'n to Def.'s Mot. to Dismiss Counts 1-7 of the Indictment (“Gov't's Opp'n”), ECF No. 55.)

         This Court heard the parties' arguments on Hillie's motion to dismiss the child pornography charges during a motion hearing that the Court held on August 3, 2017 (see Aug. 3, 2017 Hr'g Tr. (“Aug. 3 Tr.”), at 51-75), and during a subsequent hearing held on September 21, 2017, the Court orally DENIED Hillie's motion (see Sept. 21, 2017 Hr'g Tr. (“Sept. 21 Tr.”)). The instant Memorandum Opinion explains the reasons for that ruling. In short, this Court has considered the parties' arguments, and evaluated the facts presented here in light of the widely accepted factors for determining whether a charged visual depiction constitutes child pornography in the form of a “lascivious exhibition of the genitals or pubic area” of a minor, 18 U.S.C. § 2256(2)(A)(v), that were first set out in United States v. Dost, 636 F.Supp. 828 (S.D. Cal. 1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), cert. denied, 484 U.S. 856 (1987), and aff'd, 813 F.2d 1231 (9th Cir. 1987). The Court has concluded that a reasonable jury could easily find that the videos charged in the superseding indictment either depict a minor engaged in sexually explicit conduct or demonstrate Hillie's attempts to capture depictions of a minor engaging in sexually explicit conduct. Therefore, this Court agrees with the government that the crimes of production and possession of child pornography (which require that a minor engage in “sexually explicit conduct[, ]” 18 U.S.C. §§ 2251(a), 2252(a)(4)(B)) can reasonably be construed to pertain to the conduct the government has charged here.

         A separate Order consistent with this Memorandum Opinion will follow.

         I. BACKGROUND

         A. Underlying Facts

         The federal child pornography counts that Hillie challenges in the instant motion to dismiss are alleged in a superseding indictment that the government filed on January 18, 2017. (See Indictment.) This Court previously granted in part Hillie's motion to dismiss an earlier iteration of the indictment, see United States v. Hillie (“Hillie I”), 227 F.Supp.3d 57, 82 (D.D.C. 2017), after which the government timely filed the superseding indictment that is before the Court today.

         This Court's opinion in Hillie I contains a lengthy discussion of the allegations of fact that underlie the child pornography and sex abuse charges against Hillie, see id. at 66-67; those facts will not be repeated here. For present purposes, it suffices to recall that, “[b]eginning in 2005, ” Hillie allegedly became “romantically involved” with the mother of the two alleged victims involved in this case-J.A.A. and J.A., who are sisters-and Hillie lived with this family “on and off” over a ten-year period. Id. at 66. “J.A., the younger of the two sisters, was the first to speak up about the alleged sexual abuse” when, “[i]n December of 2012, ” she “confided in her biological father . . . about Hillie's conduct, which led her father to file a formal report with the police.” Id. J.A.A. (the older sister) initially “refus[ed] to corroborate J.A.'s account[, ]” which caused “the police to suspend their investigation into the child sex abuse allegations, ” but J.A.A. eventually “reversed course and admitted to the investigators that she had previously lied about not being abused by Hillie.” Id.

         Significantly for present purposes, J.A.A. also “told the police that . . . she had [previously] discovered nude photographs of herself on [her] family's pink laptop computer, and that the photos had been taken without her knowledge.” Id. at 67. Law enforcement officers then arrested Hillie based on J.A. and J.A.A.'s allegations of sexual abuse, and they seized a pink laptop, recovering “multiple . . . videos that Hillie had [allegedly] created surreptitiously using a hand-held visual recording device[.]” Id. Those videos form the basis of the child pornography charges in the instant superseding indictment.

         B. Procedural History

         This Court dismissed the federal child pornography counts that the government brought against Hillie in the initial indictment without prejudice, because the counts merely quoted the language of 18 U.S.C. §§ 2251 and 2252 and “fail[ed] to provide minimally required factual information regarding the conduct of Hillie's that the government sa[id] constitute[d] production and possession of child pornography in violation of federal law.” Id. at 62. The government subsequently timely filed the instant superseding indictment, which charges Hillie with seven detailed counts of child pornography involving J.A.A. (Counts 1-7) (see Indictment at 1-5), five counts of child sexual abuse involving J.A.A. (Counts 8-12) (see Id. at 5-9), and five counts of child sexual abuse involving J.A. (Counts 13-17) (see Id. at 9-13). As to the federal child pornography offenses, Hillie is charged with making two videos of J.A.A. grooming herself in her bedroom and bathroom, in violation of 18 U.S.C. §§ 2251(a) (production of child pornography) and 2252(a)(4)(B) (possession of child pornography) (Counts 1-3) (see Id. at 1-3), and Hillie is also charged with attempted production of child pornography in connection with four other videos that he allegedly endeavored to make when J.A.A. was in her bedroom and bathroom, in violation of 18 U.S.C. § 2251(a) and (e) (Counts 4-7) (see Id. at 3-5).

         With the superseding indictment in hand, on April 28, 2017, Hillie filed three separate motions raising various challenges to the government's charges. In addition to the instant Motion to Dismiss Counts 1-7, Hillie requested that the superseding indictment be dismissed in its entirety on the grounds that “each count in the indictment fails to make a sufficient factual assertion to support the government's contention that Mr. Hillie committed the crime alleged in each count” (Def.'s Second Mot. to Dismiss Indictment, ECF No. 53, at 1), and he also moved to dismiss the sole possession of child pornography count as duplicitous (see Mot. to Dismiss Count Three of Indictment Due to Duplicity, ECF No. 51). The parties proceeded to brief those motions fully, and on August 3, 2017, this Court heard oral arguments pertaining to them. During that same hearing, the Court orally denied Hillie's motion to dismiss the indictment, finding that “the government has sufficiently cured the problems that the Court indicated in its [prior] opinion” (Aug. 3 Tr. at 49:8-9), and took the two remaining motions under advisement (see Id. at 75:6-8, 88:18-19).

         During a motion hearing that the Court held on September 21, 2017, the Court announced that Hillie's Motion to Dismiss Counts 1-7 of the indictment would be denied and that written reasons for the denial of that motion would be forthcoming. (See Sept. 21 Tr.)


         A. Federal Rule Of Criminal Procedure 12(b)

         Before trial, a defendant in a criminal case may move to dismiss an indictment on the grounds that it fails to state an offense-i.e., because “the indictment does not charge a crime against the United States[.]” United States v. Cotton, 535 U.S. 625, 631 (2002) (internal quotation marks and citation omitted); see also Al Bahlul v. United States, 767 F.3d 1, 10 n.6 (D.C. Cir. 2014) (“Failure to state an offense is simply another way of saying there is a defect in the indictment[.]”); Fed. R. Crim. P. 12(b)(3)(B)(v) (listing “failure to state an offense” as a defense that is based on “a defect in the indictment”). Because “claims that a statute named in an indictment does not proscribe the alleged conduct are generally treated as claims that the indictment fails to state an offense[, ]” United States v. Hite, 950 F.Supp.2d 23, 25-26 (D.D.C. 2013) (internal quotation marks and citation omitted), “[t]he operative question is whether the allegations [in the indictment], if proven, would be sufficient to permit a jury to find that the crimes charged were committed[, ]” United States v. Sanford, Ltd., 859 F.Supp.2d 102, 107 (D.D.C. 2012).

         When considering a motion to dismiss for failure to state an offense, the court “is limited to reviewing the face of the indictment and, more specifically, the language used to charge the crimes.” United States v. Sunia, 643 F.Supp.2d 51, 60 (D.D.C. 2009) (emphasis, internal quotation marks, and citation omitted). “Adherence to the language of the indictment is essential because the Fifth Amendment requires that criminal prosecutions be limited to the unique allegations of the indictments returned by the grand jury.” United States v. Hitt, 249 F.3d 1010, 1016 (D.C. Cir. 2001). To that end, a court “must presume the allegations of the indictment to be true, and may not dismiss an indictment on a determination of facts that should have been developed at trial[.]” Sunia, 643 F.Supp.2d at 60 (alterations, internal quotation marks, and citations omitted); see also United States v. Sharpe, 438 F.3d 1257, 1258-59 (11th Cir. 2006) (explaining that the district court must view the indictment's allegations “in the light most favorable to the government” when determining whether “the factual allegations in the indictment . . . were sufficient to charge the offense as a matter of law” (internal quotation marks and citations omitted)).

         B. The Child Pornography Prevention Act Of 1996

         Since 1977, Congress has enacted myriad statutes that criminalize the sexual exploitation of children. See, e.g., Protection of Children Against Sexual Exploitation Act of 1977, Pub. L. No. 95-225, 92 Stat. 7 (1978); Child Protection Act of 1984, Pub. L. No. 98-292, 98 Stat. 204 (1984); Child Pornography Prevention Act of 1996, Pub. L. No. 104-208, Div. A, Title I, § 121, 110 Stat. 3009 (1996). The statutory scheme that Congress established with the Child Pornography Prevention Act of 1996, 18 U.S.C. § 2251 et seq., prohibits, among other things, exploiting ...

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