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United States v. Hardy

United States District Court, District of Columbia

May 22, 2019



          Beryl A. Howell, Chief Judge.

         The government has appealed a Magistrate Judge decision denying the government's motion for pretrial detention of the defendant, Antonio Lamar Hardy, who has been charged in a two-count criminal complaint with knowingly transporting an individual under the age of 18 in interstate commerce with intent that that individual engage in prostitution and any sexual act for which any person can be charged with a criminal offense, in violation of 18 U.S.C. § 2423(a), and knowingly attempting to recruit, entice, harbor, transport, provide, obtain, maintain, patronize, or solicit by any means, in and affecting interstate or foreign commerce, a minor female 16 years of age, knowing and in reckless disregard of the fact that the female had not attained the age of 18 years and that she would be caused to engaged in a commercial sex act, in violation of 18 U.S.C. § 1591. See Gov't's Mot. to Extend Stay of Release Order and for Review of Release Order (“Gov't's Mot.”), at 1-2, ECF No. 11; Gov't's Mot. for Review of Release Order, ECF No. 12; Crim. Compl. at 1, ECF No. 1. These charges arise from evidence that the defendant, from approximately February 20, 2019 to March 14, 2019, engaged in sexual activities with a 16-year-old female minor (“N.H”), whom the defendant allegedly paid for these activities, and that he transported her across state lines in order to engage in these activities. See Crim. Compl. at 1; Aff. Supp. Crim. Compl. (“Aff.”) at 1-2, ECF No. 1-1. The defendant, who previously worked at the school N.H. attends, Aff. at 1; Gov't's Mot. at 5, allegedly picked up N.H. from locations in the District of Columbia and Virginia and transported her to his home and a hotel in Maryland in order to engage in sexual activities, Aff. at 2; Gov't's Mot. at 4, 12-13, 16. In exchange for sexual activities, the defendant allegedly paid N.H. cash and bought her items including a Nintendo Switch and a smartphone. Aff. at 6-7; Gov't's Mot. at 12. The defendant also allegedly purchased two videos from N.H., at least one of which depicted sexual activities between a man and a minor girl who attended high school. See Aff. at 5-6; Gov't's Mot. at 3-4, 7-8.

         Based on the evidence proffered by the parties at a hearing on May 20, 2019 before this Court, the government's motion to detain the defendant was granted. See Min. Entry (May 20, 2019). This Memorandum Opinion sets out the findings and reasons for detention. See 18 U.S.C. § 3142(i)(1) (requiring that a detention order “include written findings of fact and a written statement of the reasons for the detention”); see also United States v. Nwokoro, 651 F.3d 108, 109 (D.C. Cir. 2011) (per curiam) (noting that the Bail Reform Act requires pretrial detention order be supported by “a clear and legally sufficient basis for the court's determination” in written findings of fact and a written statement of the reasons for the detention or in “the transcription of a detention hearing” (internal quotation marks omitted) (quoting United States v. Peralta, 849 F.2d 625, 626 (D.C. Cir. 1988))).


         This section provides a procedural history of this case and a summary of the parties' arguments regarding whether the defendant's relationship with N.H. was commercial and whether the defendant or members of his family attempted to convince N.H. to lie to or to stop cooperating with law enforcement.

         A. Procedural History

         The defendant, a 22-year-old man, Aff. at 1, was arrested on May 3, 2019 on an arrest warrant issued by the United States District Court for the District of Columbia in connection with a Criminal Complaint charging the defendant with one count of sex trafficking of a minor, in violation of 18 U.S.C. § 1591, and one count of transportation of a minor with intent to engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a). See Crim. Compl. at 1; Gov't's Mot. at 1-2; Arrest Warrant Returned Executed (May 3, 2019), ECF No. 4. The defendant waived his preliminary hearing, see Waiver of Preliminary Hearing, ECF No. 8. At the defendant's initial appearance, the government moved to detain the defendant without bond pending trial pursuant to 18 U.S.C. § 3142(f)(1)(A). Gov't's Mot. at 2. After a continuance to allow for initial discovery, a detention hearing was held on May 17, 2019, before a Magistrate Judge, see id.; Min. Entry (May 17, 2019), who denied the government's motion for detention and released the defendant on a personal recognizance bond to the third-party custody of his uncle. Gov't's Mot. at 2-3. A number of release conditions were imposed, including 21 days of home confinement, participation in the High Intensity Supervision Program, a curfew, restrictions on internet usage, and a stay-away order pertaining to minors, including N.H. See Order Setting Conditions for Release (“Release Order”) at 2, ECF No. 10.

         Following the Magistrate Judge's decision, the government moved for a stay of the release order to permit it to file a motion for review, which the Magistrate Judge granted, with the stay set to expire at 5:00 PM on May 20, 2019. Gov't's Mot. at 3; Min. Entry (May 17, 2019). The government filed a motion to extend the stay of the release order in order to give this Court time for review, and a hearing was held on May 20, 2019 at 2:30 PM. See Min. Entry (May 20, 2019).[1]

         B. Background of the Defendant's Relationship with N.H.

         At the hearing, the government relied, as support for seeking the defendant's pretrial detention, largely on the factual allegations set out in the criminal complaint and in its motion for review of the release order. In particular, evidence indicates that from approximately February 20, 2019 through March 14, 2019, the defendant engaged in sexual acts with N.H., a 16-year-old girl, that he paid N.H. cash and goods in exchange for sexual activity, and that he transported N.H. from locations in Virginia and the District of Columbia to his residence in Maryland and to a hotel in Maryland in order to engage in sexual activity.

         N.H. and an unidentified 18-year-old male business partner operated an Instagram business in which N.H. prostituted herself and other minors. Gov't's Mot. at 3. N.H. owned numerous Instagram accounts, one of which, “, ” was used to advertise sex videos and prostitution. Id. at 5, 7. The page advertised sex videos for purchase, most of which, according to N.H., involved girls who were under the age of 18. Id. at 3, 6. Law enforcement officers who reviewed N.H.'s Instagram account noted that the account listed several sexual services with a price next to each service, with an indication that payments must be made through a particular application. Id. at 6.

         On February 21, 2019, N.H., at the direction of her business partner, met with an individual who had contacted the business partner through Instagram looking to purchase pornography. Id. at 3-4, 7; H'rg Tr. (Rough) at 5:17-25 (clarifying that this meeting occurred on February 21, 2019). This buyer turned out to be the defendant, whom N.H. knew, since the defendant was employed at N.H.'s high school as an information and technology specialist. Gov't's Mot. at 4. N.H. was not aware of the identity of the client before she went to the meeting. Id. at 4, 7.[2] At the meeting, the defendant indicated that he was looking for “sloppy oral” videos and provided N.H. with $20 in exchange for two videos. Id. at 7. N.H. gave the defendant her cell phone to allow him to look at the videos available and select two to purchase. Id. Most of the videos were of girls under the age of 18 engaging in sex acts. Id. The defendant asked who was in the videos, and N.H. told him that most of them depicted a student from High School 1, although a different student from High School 2 was also depicted. Id. The defendant selected two videos for purchase, one of which, according to N.H., depicted a girl giving oral sex to a male; this girl attended High School 2, although N.H. did not know her precise age. Id. Text messages N.H. exchanged with her business partner on February 21, 2019 indicate that the defendant, in addition to being interested in purchasing videos, was also interested in engaging in sexual activity with N.H. or “one of the girls.” Id. at 8-9.

         The next day, February 22, 2019, the defendant used his Instagram account to communicate with N.H. via her Instagram account. Id. at 10-11. N.H. asked for “a favor” and indicated that she needed an adult to accompany her to get a tattoo that evening. Id. at 11. The defendant agreed, and he and his wife took N.H. to get a tattoo. Id. N.H. discussed these plans with a school administrator (“CW 1”). Id. at 5. In her Instagram messages with CW 1, N.H. referred to the defendant as her “Splenda-Daddy.” Id. at 11. As N.H. explained to investigators, the term connoted that the defendant was “similar to a ‘sugar daddy' but with less money to spend.” Id. at 11 n.7.

         The defendant and N.H. allegedly began to engage in sexual activities on or around February 23, 2019, although the government's papers confuse rather than elucidate the timeline of the defendant's relationship with N.H. At the hearing, the government indicated that N.H. and the defendant first had sex on the evening of February 23, 2019 at the defendant's residence in Maryland, after the defendant picked N.H. up from a location in the District of Columbia. Id. at 12; H'rg Tr. (Rough) at 26:7-25 (indicating that the defendant and N.H. first had sex at the defendant's house on February 23, 2019). Although the government states “we know [the defendant] takes [N.H.] to his house before he takes her to the hotel to engage in sex for money, ” H'rg Tr. (Rough) at 26:13-15, the government's motion also states that prior to going to the hotel, the defendant picked N.H. up from her grandmother's house in Maryland (not the District of Columbia), went to the District of Columbia to eat, went to CW 1's house in Maryland, went to a store in Virginia, all before eventually checking into a hotel in Maryland. Gov't's Mot. at 13. Although this timeline is not necessarily inconsistent with stopping at the defendant's home in Maryland at some point on February 23, 2019, the government does not make clear when, if at all, this stop occurred. Further, the government also indicates that the first time N.H. had sex at the defendant's residence was not her first time visiting the residence. Id. at 12. Indeed, the government's evidence could be read to suggest that the defendant and N.H. first had sex at the defendant's home in Maryland on February 24, 2019, rather than on February 23, 2019. Hotel records and data from N.H.'s iPhone indicate that the defendant and N.H. checked into a Maryland hotel in the early morning hours of February 24, 2019. Id. at 13. N.H.'s iPhone contains videos of her, with the defendant visible or audible in the background, in a hotel room, and the videos were created in the early morning hours of February 24, 2019. Id. The government's motion also states that N.H. and the defendant went to the defendant's residence on February 24, 2019, after leaving the hotel. Id. at 14. Images from N.H.'s iPhone include pictures of the defendant taken outside his residence, with the pictures dated February 24, 2019, and a video of N.H. in the defendant's residence taken during the same time period. Id. From this jumbled timeline, whether or when the defendant and N.H. had sex at the defendant's residence on February 23 or 24, 2019 remains murky.

         Regardless, the defendant and N.H. allegedly continued to engage in sexual activities until approximately March 14, 2019. Criminal Compl. at 1. Although N.H. could not specify the exact number of times she engaged in sexual activities with the defendant, she estimated at least six times. H'rg Tr. (Rough) at 7:4-7.

         1. Evidence of the Commercial Nature of the Relationship

         Despite confusion regarding the location of the defendant's first sexual encounter with N.H., the defendant concedes that he engaged in sexual activities with N.H. over a period of weeks. Id. at 19:20-25 (Defense Counsel stating: “[W]e are not disputing that there was this relationship.”). He disputes, however, that their relationship was commercial. See Id. at 14:19- 22 (“[W]hat Judge Harvey hung his hat on essentially was the sufficiency of the evidence when it relates to the actual commercial sex between the two parties.”); id. at 19:21-22 (“The question is whether it was quid pro quo, money for sex.”). The defendant suggests that buying a sexual partner food and gifts is common in relationships, id. at 20:8-15, and that “there is not a single text message or any other type of electronic record of [defendant] ever mentioning that he's paying for sex acts, ” id. at 39:24-40:1. He further points to text messages between N.H. and the defendant “talking about their feelings for each other, talking about their relationship, ” id. at 16:17-18, as evidence that “[t]his is not a prostitute talking to a John about a business transaction, ” id. at 16:19-20. The defendant further posits that N.H.'s pain over the defendant ending their relationship is “the motive for the fabrications that N.H. appears to be making.” Id. at 16:24-18:17 (defense counsel detailing what he believes to be outright fabrications or at least inconsistencies in N.H.'s statements).

         The government responds that although N.H. was not able to say with precision how many times she had engaged in sexual activities with the defendant, such activities occurred at least six times, and that “there were no occasions where there were sex acts performed not for payment.” Id. at 7:4-7; see also Gov't's Mot. at 16 (N.H. indicated that that the defendant “paid her in cash each time the two had engaged in sexual acts”). Moreover, N.H. “stated that she viewed sexual encounters as business, ” Gov't's Mot. at 12, and that “[f]rom the beginning, N.H. told [defendant] he had to pay for her time, ” id. Although the defendant paid N.H. one time to “hang out” in his car, otherwise, the defendant “was basically paying to have sex with her.” Id.; see also Id. at 13 (“N.H. also clarified in a later interview that [defendant] paid her cash for the sex acts in which the two engaged at the hotel.”); id. at 16 (N.H. indicated that the defendant gave her $300 in cash after engaging in sexual acts at his home, and on at least two other occasions of sexual activity at the defendant's home, gave her varying amounts of money after the sexual activity but not less than $150); id. at 21-22 (N.H., recounting to CW 1 her conversations with the defendant, explains that she texted the defendant that “our deal has been settled you got me a phone and paid me the money you owe” and the defendant responded “you are more to me than just business, ” after which N.H. stated “[b]ring me 600 right now and I will THINK ABOUT spending time with you, ” prompting the defendant to bring N.H. $600, after which they engaged in sexual activity). The defendant's phone also ...

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