                           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 20, 2013)

       Presently before the Court is the Defendant’s oral motion for a judgment of acquittal

following the close of the Government’s evidence, on which the Court reserved its decision

pursuant to Federal Rule of Criminal Procedure 29(b). Based on the evidence in the record, the

parties’ arguments,1 and the relevant legal authorities, the Court finds that the Government

presented sufficient evidence to sustain a conviction on both counts of the Superseding

Indictment. Accordingly, the Defendant’s motion for a judgment of acquittal is DENIED.

                                      I. BACKGROUND

       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.      The evidence introduced by the Government demonstrated that 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

       1
          Excerpts of the trial transcript containing the parties’ arguments on the Defendant’s
motion are attached to this Memorandum Opinion.
year-old daughter of JP’s girlfriend. 2/6/13 AM Tr. 113:12-132:19; 2/6/13 PM Tr. 3:11-101:22;

2/7/13 AM Tr. 11:16-29:23; 2/7/13 AM Tr. 30:3-114:5 (cross-examination); 2/7/13 PM Tr. 4:3-

52:18 (cross-examination); 2/7/13 PM Tr. 52:24-58:19 (re-direct); Gov’t Ex. 4 (gay.com chat

transcript); Gov’t Ex. 5 (Yahoo chat transcripts); Gov’t Ex. 10 (recording of 2/14/12 telephone

call); Gov’t Ex. 11 (recording of 2/17/12 telephone call).

       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 the Defendant intended to entice

or coerce the minors at the time of the alleged offense, or took substantial steps towards

completion the offenses. 2/8/12 PM Tr. 30:11-31:6, 34:8-35:2. 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 Court reserved its decision on the Defendant’s motions pending the jury’s

verdict. Id. at 38:16-21. The Jury subsequently convicted the Defendant on both counts of the

Superseding Indictment. The Court rejected the Defendant’s legal argument in support of his

motion for a judgment of acquittal in the June 14, 2013, Memorandum Opinion and Order, ECF

Nos. [123-24]. The Court addresses the first portion of the Defendant’s motion relating to the

sufficiency of the evidence to sustain a conviction in this Memorandum Opinion.

                                    II. LEGAL STANDARD

       Rule 29(a) of the Federal Rules of Criminal Procedure provides in pertinent 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. Crim. P. 29(a). “If the court reserves decision, it

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must decide the motion on the basis of the evidence at the time the ruling was reserved.” Fed. R.

Crim. P. 29(b). “In ruling on a motion for a judgment of acquittal, the trial court must view the

evidence in the light most favorable to the Government giving full play to the right of the jury to

determine credibility, weigh the evidence and draw justifiable inferences of fact.” United States

v. Treadwell, 760 F.2d 327, 333 (D.C. Cir. 1985) (citation omitted). “This stringent standard

contemplates that the ultimate decision of guilt or innocence should be left to the jury, and that it

is the province of the jury to credit certain testimony and reject other testimony.” United States

v. Khanu, 675 F. Supp. 2d 55, 60 (D.D.C. 2009).

       The Court must deny a motion for judgment of acquittal when the evidence “is sufficient

to permit a rational trier of fact to find all of the essential elements of the crime beyond a

reasonable doubt.” United States v. Kayode, 254 F.3d 204, 212 (D.C. Cir. 2011) (citation

omitted). A judgment of acquittal is warranted “only when there is no evidence upon which a

reasonable mind might find guilt beyond a reasonable doubt.” United States v. Byfield, 928 F.2d

1163, 1165 (D.C. Cir. 1991) (citation omitted); see also United States v. Foster, 783 F.2d 1087,

1088 (D.C. Cir. 1986) (“[W]here the evidence viewed in the light most favorable to the

prosecution is such that a reasonable juror must have a reasonable doubt as to the existence of

any of the essential elements of the crime, a motion for judgment of acquittal must be granted.”)

(citation omitted). The evidence “need not exclude every reasonable hypothesis of innocence or

be wholly inconsistent with every conclusion except that of guilt.” United States v. Maxwell,

920 F.2d 1028, 1035 (D.C. Cir. 1990) (citation omitted). “There is no requirement of any direct

evidence against the defendant; the evidence may be entirely circumstantial.” United States v.

Poston, 902 F.2d 90, 94 n.4 (D.C. Cir. 1990).



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                                        III. DISCUSSION

       A.      Intent to Persuade, Induce, Entice, or Coerce

       The Defendant argues that the evidence presented by the Government is insufficient to

permit a rational trier of fact to find beyond a reasonable doubt that the Defendant intended to

persuade, induce, entice, or coerce the fictitious minors to engage in illicit sexual activity.

Specifically, the Defendant argues that if the jury were to credit the Government’s evidence

“what they would have would be that Dr. Hite entertained the notion and had the intent at some

future time to induce a minor to have sex.” 2/8/13 PM Tr. 30:23-31:1 (emphasis added). On the

record before the Court at the time the Defendant made his motion, the Court finds a reasonable

trier of fact could find beyond a reasonable doubt each of the essential elements of the attempt

offenses with which the Defendant was charged.

       As an initial matter, the Defendant’s argument is based on a flawed understanding of the

completed offense under section 2422(b). “Section 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., ECF No. [15], at 27. The offense is complete at the point a

defendant obtains the minor’s assent; the timing of the sexual activity is irrelevant. Thus, the

relevant question for purposes of this motion is whether the Government introduced sufficient

evidence from which a reasonable trier of fact could conclude that the Defendant intended to

persuade, induce, entice, or coerce the fictitious minors to engage in illicit sexual activity

regardless of when the illicit sexual activity is supposed to take place.

       With respect to the twelve-year-old girl, the Government introduced evidence that during

the first Yahoo chat with JP on February 1, 2012, the Defendant: (1) expressed a desire to engage

in sexual activity with the girl, Gov’t Ex. 5 at 1 (“damn—love to get my tongue in that”);

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(2) asked what sexually excited the girl, id. at 2; (3) suggested a sexual encounter with himself,

JP and the girl, id. at 2 (“BOTH of you would excite me”), id. (“would love to do a bi 3 way with

you and a yng girl”); (4) discussed what days of the week would be most convenient for an

encounter with the girl, id. at 3; (5) indicated JP could show the girl a picture of the Defendant,

id. at 3; (6) said he would “love to see” a picture of the girl, id. at 4; (7) thanked JP “for the

potential experience”; and (8) twice said “let me know what she thinks,” id. at 4, 5. During

subsequent chats, the Defendant (1) asked if the girl liked the idea of a sexual encounter with JP

and Defendant, Gov’t Ex. 5 at 10; (2) offered that he was “willing to take it slowly at her pace,”

id.; (3) said he “can’t wait to see her naked,” id.; (4) when he was not available on the date

suggested by JP to engage in sexual activity with the girl, the Defendant indicated when he

would be available, id. at 11; and (5) stated that if JP had custody of the girl “any other time, let

me know,” id.      Subsequent discussions focused on the three-year-old, but the Defendant

indicated that he still also wanted to meet the girl, Gov’t Ex. 5 at 26, and asked JP to “tell her

hello from me—can’t wait to meet her,” id. at 46. The Defendant raised the issue that he had not

had a vasectomy and would need to “be careful with” the girl, but would “adjust” to the fact JP

would require him to wear a condom when having sex with the girl. Id. at 26-27. On this record,

viewing the evidence in the light most favorable to the Government, there is more than sufficient

evidence to permit a rational trier of fact to find beyond a reasonable doubt that during his

conversations with JP, the Defendant at that time intended to persuade, induce, entice, or coerce

the fictitious twelve-year-old girl to engage in sexual activity.

       The evidence was likewise sufficient for the three-year-old boy. The Defendant first

suggested the Defendant engage in sexual activity with the boy. Gov’t Ex. 5 at 13 (“count me IN

with him also”); id. (“would love to help you with him sometime”). The Defendant proposed

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scenarios for engaging in sexual activity with the boy, e.g., id. at 21-23, and told JP to “make

sure you have some” Benadryl to give the boy as a sedative, id. at 28, 34 (“we need Benadryl for

him when we meet”). The Defendant emphasized that he was “VERY interested” in the boy, and

that the Defendant wanted “real time with him.” Id. at 31. The Defendant proposed “meet[ing]

just us 2 before the introduction of the hotties just to make sure we are comfortable.” Gov’t Ex.

5 at 19, 24; see also id. at 44 (“if us 2 are totally comfortable---on to the REAL fun”).

       The Defendant and JP agreed to meet on February 17, 2012, the Defendant indicated

what time he would arrive, and they decided to have dinner once the Defendant arrived. Id. at

36. The Defendant asked what time the boy would arrive the following day, and asserted that he

“w[ould] do anything you want to enable this arrangement.” Id. at 37. The Defendant asked if

he should plan on spending Friday night so they could “play Saturday,” or leave Friday evening

and return Saturday. Id. at 38. The Defendant asked how JP “want[ed] to start with him on

Saturday,” and asked if he should bring bananas, or if “jelly or honey might work better” for

engaging the boy in sexual activity. Id. at 38-39; see also id. at 40 (“think our plan is as you say-

--games and benedryl [sic]”). The Defendant later indicated he “got a gag gift of a jar of peanut

butter and grape jelly pre-mixed---hehe---THAT should be fun.” Id. at 45. The Defendant and

JP also discussed in detail what sexual acts they might perform on the boy. Id. at 41-42.

       JP called the Defendant on February 17, 2013, and the Defendant indicated that he was

trying to relay his “paranoia” about meeting up with JP, stating that “I would enjoy it immensely

and I think you’re probably, would be. I just need . . . you know, I just need a little bit more

confirmation.” JP offered to “do a webcam” showing JP engaging in sexual activity with the boy

the following day, to which the Defendant replied “I was hoping that you would suggest

something like this,” and “if I know that, you know, that you’re, you know, legit; then I’m

                                                 6
there.” JP indicated that he was returning the boy to his parents on Sunday evening rather than

having the parents pick up the boy, to which the Defendant replied “you know that would be

absolutely, you know, perfect.” The Defendant further indicated that “I owe you dinner, for sure,

tomorrow night . . . tomorrow night is my treat.” JP suggested that take-in from McDonald’s

would be the easiest, and that the only thing the boy eats is nuggets. The Defendant stated

“[t]hat will work.”

       The fact that the Defendant did not ultimately travel to Washington, D.C., is not

dispositive of the Defendant’s intent; the jury need only find that the Defendant intended to

coerce the three-year-old to engage in sexual activity, regardless of whether the Defendant

intended to ultimately engage in the sexual activity. See United States v. Goetzke, 494 F.3d

1231, 1236 (9th Cir. 2007) (“Travel by a defendant to meet a potential victim is probative, but

not required, to advance and verify an intent to persuade, induce, entice, or coerce.”). The

Defendant’s conversations prior to February 17, as well as the Defendant’s statements regarding

the proposed webcam with the boy provide a sufficient basis for the jury to make the required

finding regarding the Defendant’s intent to coerce the child. Viewing the evidence in the light

most favorable to the Government, the Government introduced sufficient evidence from which a

reasonable trier of fact could conclude beyond a reasonable doubt that the Defendant intended to

persuade, induce, entice, or coerce the fictitious three-year-old boy to engage in sexual activity.

       B.      Substantial Step

       After a colloquy with the Court, the Defendant’s argument appeared to shift from the

issue of intent to the issue of whether the Government proved the Defendant took a substantial

step towards completion of the offenses.        2/8/13 PM Tr. 34:8-35:2.       “[W]hile words and

discussions would usually be considered preparations for most crimes, a specific discussion

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could be so final in nature that it left little doubt that a crime was intended and would be

committed.” United States v. Pratt, 351 F.3d 131, 136 (4th Cir. 2003); accord, e.g., United

States v. Broussard, 669 F.3d 537, 550 (5th Cir. 2012) (“[T]he prohibited act of persuasion can

occur over a distance, as the statute expressly contemplates, and logic would appear to dictate

that having discussions with TL and KH about meeting to have sex is a substantial step toward

persuading them to have sex.”).

         Beginning with the twelve-year-old girl, the Government submitted sufficient evidence to

show the Defendant went beyond mere preparations. The Defendant discussed what days he

would or would not be available to engage in sexual activity with the girl and suggested

alternative dates when he was not available on the day suggested by JP, Gov’t Ex. 5 at 3, 11,

discussed what sexual activity with the girl would be permitted, id. at 26-27, raised the issue that

he had not had a vasectomy and would have “to be careful” with the girl, id., and followed up

regarding JP’s conversations with the girl as to whether she would be interested in engaging in

sexual activity with the Defendant and JP, id. at 10. With respect to the three-year-old, the

Defendant selected a date to engage in sexual activity with the boy, id. at 36, discussed where to

park when he arrived in Washington, D.C., and what car he would drive, id. at 25, 57, discussed

in detail what sexual acts they might perform on the boy, id. at 41-42, and indicated that he had a

jar of peanut butter and jelly to use during sexual activity with the boy, id. at 45. The Defendant

also searched for directions to the Verizon Center in Washington, D.C. 2/8/13 AM Tr. 137:20-

138:4.    During the February 17, 2012, conversation, the Defendant discussed whether the

weather would be an issue when he drove to Washington, D.C., the following day, as well as the

parties’ plan for dinner following the Defendant’s arrival. As the Third, Sixth, Ninth, and Tenth

Circuits have held, “when a defendant initiates conversation with a minor, describes the sexual

                                                 8
acts that he would like to perform on the minor, and proposes a rendezvous to perform those

acts, he has crossed the line toward persuading, inducing, enticing, or coercing a minor to engage

in unlawful sexual activity.” Goetzke, 494 F.3d at 1236; see also 6/30/12 Mem. Op. at 25-26

(collecting cases).

                                      IV. CONCLUSION

       For the foregoing reasons, the Court finds that, drawing all reasonable inferences in favor

of the Government, the Government introduced sufficient to permit a rational trier of fact to find

the Defendant intended to intended to persuade, induce, entice, or coerce the fictitious minors to

engage in sexual activity, and took a substantial step towards completion of the offense as to

each minor, beyond a reasonable doubt. Accordingly, the Defendant’s motion for a judgment of

acquittal is DENIED. An appropriate Order accompanies this Memorandum Opinion.




                                                        /s/
                                                    COLLEEN KOLLAR-KOTELLY
                                                    UNITED STATES DISTRICT JUDGE




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