                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


 UNITED STATES OF AMERICA,

           v.
                                                           Criminal No. 12-65 (CKK)
 PAUL DAVID HITE,

    Defendant.


                                 MEMORANDUM OPINION
                                     (June 14, 2013)

       Defendant Paul David Hite was charged by Superseding Indictment with two counts of

attempted coercion and enticement of a minor in violation of 18 U.S.C. § 2422(b). Following a

jury trial, the Defendant was convicted of both counts.       Presently before the Court is the

Defendant’s [98] Rule 29 Motion for Judgment of Acquittal. The Defendant argues he is entitled

to a judgment of acquittal because, as a matter of law, he could not have been charged with

attempting to violate the underlying District of Columbia statute identified in the Superseding

Indictment. Upon consideration of the parties’ oral arguments,1 the pleadings,2 and the relevant

legal authorities, the Court finds section 2422(b) does not require the Government to prove that a

defendant could be independently charged with attempting to violate the underlying state statute.

Therefore, the Defendant’s motion for acquittal is DENIED.

                                       I. BACKGROUND

       The Court detailed the factual background at length in two memoranda opinions denying

the Defendant’s motions to dismiss, and incorporates that discussion herein. 6/30/12 Mem. Op.,


       1
           2/8/13 PM Tr. 18:19-28:1.
       2
         Def.’s (Second) Rule 29 Motion for Judgment of Acquittal (“Def.’s Mot.”), ECF No.
[98]; Gov’t’s Opp’n, ECF No. [99]; Def.’s Reply, [102]; Gov’t’s Surreply, ECF No. [112].
ECF No. [15]; 10/9/12 Mem. Op., ECF No. [24]. In short, the Defendant engaged in a number

of online and telephonic conversations with an individual known to the Defendant as “JP”

concerning sexual activity with JP’s three year-old nephew and the twelve year-old daughter of

JP’s girlfriend.   See 6/30/12 Mem. Op. 2-13.       “JP” was the undercover identity used by

Metropolitan Police Department Detective Timothy Palchak.           The Superseding Indictment

charged the Defendant with two counts of “using facilities of interstate commerce, that is, a

telephone and computer connected to the Internet, [to] knowingly attempt to persuade, induce,

entice, and coerce a minor of the [ages of 3 and 12 years], to engage in sexual activity under such

circumstances as would constitute a criminal act” under D.C. Code § 22-3008. Superseding

Indictment, ECF No. [10]. Section 22-3008 of the D.C. Code provides

       [W]hoever, being at least 4 years older than a child, engages in a sexual act with
       that child or causes that child to engage in a sexual act shall be imprisoned for any
       term of years or for life and, in addition, may be fined an amount not to exceed
       $250,000.

D.C. Code § 22-3008.

       At the close of the Government’s case the Defendant moved for a judgment of acquittal

under Federal Rule of Criminal Procedure 29, on two grounds. First, the Defendant argued that

the Government failed to produce sufficient evidence to show that the Defendant took a

substantial step towards completion of the offense. 2/8/12 PM Tr. 30:11-31:6. The Court shall

address this portion of the Defendant’s motion under separate cover. The Defendant also argued

that, as a matter of law, section 2422(b) requires the Government to prove the Defendant could

be charged with attempting to violate the underlying state offense identified in the indictment.

See id. at 18:19-20:9. The Defendant suggested that D.C. Code § 22-3008 did not apply to

conduct involving fictitious minors, thus, as a matter of law, the Government could not prove the

Defendant could be charged with attempting to violate section 22-3008. Id. The Court reserved
                                              2
its decision on the Defendant’s motions pending the jury’s verdict. Id. at 38:16-21. Following a

verdict of guilty on both counts of the Superseding Indictment, the Court asked the parties to

submit further briefing regarding the second basis for the Defendant’s motion, which is now ripe

for resolution.

                                   II. LEGAL STANDARD

       Federal Rule of Criminal Procedure 29 provides in relevant part that “[a]fter the

government closes its evidence or after the close of all the evidence, the court on the defendant's

motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to

sustain a conviction.” Fed. R. Cr. P. 29(a).

       The court may reserve decision on the motion, proceed with the trial (where the
       motion is made before the close of all the evidence), submit the case to the jury,
       and decide the motion either before the jury returns a verdict or after it returns a
       verdict of guilty or is discharged without having returned a verdict. If the court
       reserves decision, it must decide the motion on the basis of the evidence at the
       time the ruling was reserved.

Fed. R. Cr. P. 29(b).

                                       III. DISCUSSION

       In response to the Defendant’s motion, the Government argues that as a threshold matter,

the Defendant waived his legal argument by failing to raise it before trial. Alternatively, the

Government contends that on the merits the Defendant’s motion rests on an incorrect

interpretation of the Section 2422(b). As set forth below, the Court finds the Defendant did not

waive his argument by failing to raise it before trial, but the Government is correct that section

2422(b) does not incorporate the elements of the state offense in the manner suggested by the

Defendant.    Therefore, the Court shall deny the Defendant’s motion without reaching the

question of whether D.C. Code § 22-3008 applies to incidents involving fictitious children.


                                                3
       A.      The Defendant Did Not Waive His Argument Underlying His Rule 29 Motion by
               Failing to Raise It before Trial

       Initially, the Government argues that the Defendant was required to bring the present

motion as a motion to dismiss the Superseding Indictment before the trial commenced. “[A]n

indictment may be challenged on the ground that it failed to state a charge at any time up to and

including direct appeal,” however, “an objection to an indictment based on other ‘defects’ must

be raised before trial or will be deemed waived.” United States v. Childress, 58 F.3d 693, 720

(D.C. Cir. 1995) (citing Fed. R. Civ. P. 12(b)(3)). According to the Government, the Defendant

seeks a judgment of acquittal based on a defect in the Superseding Indictment (rather than a

failure to state a claim), and therefore waived his argument by failing to bring his motion before

trial. For his part, the Defendant argues that Rule 12 has no application in this scenario because

he moved for a judgment of acquittal pursuant to Rule 29. Both arguments are misplaced

       “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. Teh,

535 F.3d 511, 515 (6th Cir. 2008) (citing cases from the Second and Fifth Circuits). Teh was

accused of importing counterfeit DVDs, and indicted under 18 U.S.C. § 545, which prohibits

knowingly importing merchandise “contrary to law.” Id. at 513. Following a bench trial, Teh

filed a motion for judgment of acquittal arguing, among other things, that his alleged conduct

could only be prosecuted under the Copyright Act, not section 545. Id. at 515. Teh “claim[ed]

that the statute asserted in the indictment to have been violated does not reach the conduct

alleged,” therefore, the court concluded that Teh’s argument “falls under the Rule 12(b)(3)(B)

exception as a claim that the indictment failed to state an offense.” Id. at 516 (citing United

States v. Miller, 161 F.3d 977 (6th Cir. 1998)); see also Miller, 161 F.3d at 982 (“In this case,

Byrnes’ argument is that the indictment against her fails to charge an offense because the
                                            4
conduct with which she is charged does not fall within the statute under which the government

proceeded. Thus, Byrnes’ failure to raise the issue prior to trial does not constitute a waiver.”).

This is precisely the argument the Defendant makes in the present motion: the Defendant asserts

that he cannot be charged with attempting to violate section 2422(b) with the underlying state

law violation of D.C. Code 22-3008 because section 22-3008 applies only to real children and

this case involves fictitious children. Def.’s Mot. at 2. Although styled as a Rule 29 motion, the

Defendant in essence moves to dismiss the Superseding Indictment for failure to state a claim,

which the Court can consider despite being raised after trial commenced.

       The D.C. Circuit cases cited by the Government provide little guidance as to how the

Defendant’s present motion should be characterized. The D.C. Circuit has not set forth a

doctrinal approach through which a court can distinguish between a defect and the failure to state

a claim, opting instead to define “defects” by way of example. Compare United States v. Mathis,

216 F.3d 18, 26, n.7 (D.C. Cir. 2000) (finding argument that indictment was duplicative asserted

a defect in the indictment); United States v. Weathers, 186 F.3d 948, 952 (D.C. Cir. 1999)

(holding multiplicity challenge to indictment alleged a defect in the indictment), with Childress,

58 F.3d at 720 (analyzing argument that the indictment failed to specify required overt acts under

rubric of failure to state a claim). The Sixth Circuit’s approach as set forth in Teh is consistent

with the limited useful case law on this issue in the D.C. Circuit. Accordingly, the Court finds

the Defendant’s motion functionally alleges the Superseding Indictment fails to state a claim,

therefore the Defendant was not required to raise this issue before trial.

       B.      Section 2422(b) Does Not Require the Government to Prove the Defendant
               Attempted to Violate the Underlying State Offense

       The crux of the Defendant’s motion is that “[a] prerequisite to conviction under 18

U.S.C. § 2422(b) is that the defendant may be charged with a violation of, or with an attempt to
                                               5
violate, the underlying state law.” The Defendant contends that D.C. Code § 22-3008 does not

apply to offenses involving fictitious children, therefore, the Defendant could not be charged

with an attempt to violate § 22-3008. The Court need not decide whether D.C. Code § 22-3008

includes offenses involving fictitious children because the premise of the Defendant’s argument

is incorrect: the Government is not required to show that a defendant could be charged with an

attempt to violate the underlying state law in order to obtain a conviction under 18 U.S.C.

§ 2422(b).

       As a threshold matter, the Defendant’s argument is inconsistent with the text of section

2422(b). Section 2422(b) prohibits persuading, inducing, enticing, or coercing a minor to engage

in sexual activity “for which any person can be charged with a criminal offense.” 18 U.S.C.

§ 2422(b). In other words, “[s]ection 2422(b) criminalizes an intentional attempt to achieve a

mental state—a minor’s assent.” United States v. Berk, 652 F.3d 132, 140 (1st Cir. 2011); see

6/30/12 Mem. Op. at 27. The state offense serves only to define what type of sexual activity a

defendant must attempt to persuade the minor to engage in: “[t]o convict [the Defendant] under

18 U.S.C. § 2422(b), the jury had to unanimously agree . . . that if sexual activity had occurred,

[the Defendant] could have been charged with a criminal offense” under state law. United States

v. Hart, 635 F.3d 850, 855 (6th Cir. 2011) (emphasis added). “Because 18 U.S.C. § 2422(b)

criminalizes persuasion and the attempt to persuade, the government is not required to prove that

the defendant completed or attempted to complete any specific chargeable offense.” Id.

       Moreover, the Defendant’s construction of section 2422(b) is inconsistent with the mens

rea requirement of an attempt to violate section 2422(b). In this case, if the Government were

required to show that the Defendant could be charged with attempting to violate D.C. Code § 22-

3008 in order to sustain a conviction under section 2422(b), it would have to show that the

                                                6
Defendant intended to engage in a sexual act with each minor. See Newman v. United States, 49

A.3d 321, 324 (noting that the mens rea element of an attempt “requires proof that [defendant]

had the intent to commit” the completed offense). This requirement directly conflicts with the

well-settled principle that “[a] conviction under § 2422(b) requires a finding only of an attempt

to entice or an intent to entice, and not an intent to perform the sexual act following the

persuasion.”    United States v. Brand, 467 F.3d 179, 202 (2d Cir. 2006); United States v.

Nitschke, 843 F. Supp. 2d 4, 11 (D.D.C. 2011) (collecting cases). The Defendant’s interpretation

would read into section 2422(b) an additional intent element that has been routinely rejected.

       To support his argument, the Defendant relies entirely on the Fourth Circuit’s decision in

United States v. Kaye, 243 F. App’x 763 (4th Cir. 2007). Without citation or analysis, the Fourth

Circuit indicated that “[t]o obtain a conviction under § 2422(b), the Government must also prove

that the additional elements of” of the Virginia state offense.” Id. at 766. In addition to the Sixth

Circuit in Hart and subsequent decisions,3 at least three Circuits have reached the opposite

conclusion from the Fourth Circuit. The Eleventh Circuit rejected this approach in United States

v. Lanzon, 639 F.3d 1293 (11th Cir. 2011), noting that “’[t]he underlying criminal conduct that

Congress expressly proscribed in passing § 2422(b) is the persuasion, inducement, enticement, or

coercion of the minor rather than the sex act itself.’” Id. at 1298 (quoting United States v.

Murrell, 368 F.3d 1283 (11th Cir. 2004)). The Eighth Circuit in United States v. Spurlock, 495

F.3d 1011 (8th Cir. 2007), addressed similar scenario to this case in that the defendant

communicated with an adult intermediary. Id. at 1014. Spurlock argued that he could not be

convicted of attempting to violate section 2422(b) because his contact with the intermediary

(“Mary”) “did not constitute statutory rape or statutory sodomy under Missouri law.” Id. at

       3
           E.g., United States v. Hackworth, 483 F. App’x 972 (6th Cir. 2012).
                                                 7
1014, n.2. The court rejected this argument as “beside the point”:

       Count One of the indictment alleges that Spurlock's conversations with “Mary”
       were an attempt to entice her daughters to engage in sexual activity with him, for
       which Spurlock could be charged with statutory rape and statutory sodomy under
       Missouri law. Therefore, Spurlock's actions fall within the scope of the federal
       statute.

Id.; see also United States v. Mannava, 565 F.3d 412, 417 (7th Cir. 2009) (“This is not to say

that a defendant must always violate the underlying state statute in order to be convicted under

section 2422(b). If state law criminalizes only the completed sexual act, section 2422(b) would

still impose liability for attempting to induce or persuade a minor to engage in the act, because an

attempt “to engage in ... any sexual activity for which any person can be charged with a criminal

offense” is explicitly criminalized by that section.”). The Court agrees that section 2422(b) does

not require the Government to prove that the Defendant violated (or attempted to violate) the

underlying state statute; it is sufficient that the Government show if the sexual activity the

Defendant enticed (or attempted to entice) the minor to engage in had been taken place, the

Defendant could have been charged under the state statute.

       The Defendant invokes the rule of lenity to suggest that in light of the different positions

taken by the Courts of Appeals, the Court should adopt the Fourth Circuit’s interpretation of

section 2422(b). Def.’s Mot. at 4-5. The rule of lenity “is a canon of last resort where there is

statutory ambiguity.” United States v. Cook, 594 F.3d 883, 890 (D.C. Cir. 2010). The Fourth

Circuit’s assertion notwithstanding, the text of section 2422(b) simply is not ambiguous, leaving

no room for the rule of lenity in this case. Every other Court of Appeals to have faced this issue

reached the opposite conclusion. One outlying Circuit is not a basis for rejecting the plain

meaning of the statute. See Abbott v. United States, 131 S. Ct. 18, 23 (2010) (finding 18 U.S.C.

§ 924(c) was not ambiguous, despite conflicting interpretations by the Courts of Appeals).

                                                 8
        Furthermore, the Defendant’s suggestion that “the language of § 2422(b) regarding

attempt is ambiguous as to whether ‘attempt’ is assessed at the federal or state level,” Def.’s

Mot. at 4, is spurious. The Court is not suggesting that federal law be used to determine whether

a defendant’s conduct amounted to an attempt to violate the state statute because section 2422(b)

does not require the defendant to take a substantial step towards completion of the underlying

state offense at all, regardless of whether “attempt” is defined by state or federal law. The issue

of attempt under section 2422(b) concerns only whether a substantial step was taken towards

persuading, inducing, enticing, or coercing the minor to engage in illicit sexual activity. There

is no ambiguity in what section 2422(b) requires for a defendant to be charged with attempting to

violate the statute, therefore the rule of lenity is inapplicable.

                                         IV. CONCLUSION

        For the foregoing reasons, the Court finds the Defendant is not entitled to a judgment of

acquittal as a matter of law. The Defendant’s motion for judgment of acquittal in essence argues

that the Superseding Indictment fails to state a claim, and thus can be raised after trial begins.

However, the Defendant’s proffered interpretation of section 2422(b) is misplaced. Section

2422(b) only requires the Government to show that if the Defendant and the minors at issue had

engaged in the sexual activity the Defendant attempted to persuade, induce, entice, or coerce the

minors to engage in, the Defendant could have been charged with a violation of D.C. Code § 22-

3008. The Defendant does not contest the fact that the Government made that showing in this

case. Accordingly, the Defendant’s [98] Rule 29 Motion for Judgment of Acquittal is DENIED.

An appropriate Order accompanies this Memorandum Opinion.

                                                          /s/
                                                        COLLEEN KOLLAR-KOTELLY
                                                        UNITED STATES DISTRICT JUDGE

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