COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.
This matter comes before the Court on Defendant Paul David Hite's [186] Motion for an Order Setting Conditions of Release Pursuant to 18 U.S.C. § 3142. Dr. Hite seeks release pending re-trial, arguing that conditions of release can be set that reasonably assure his appearance at re-trial and reasonably assure that he is not a danger to the community. Def.'s Memo. at 1. The government opposes Dr. Hite's release and requests that he remain detained pending re-trial. Govt.'s Opp'n at 1. Upon consideration of the pleadings,
On February 21, 2012, Paul David Hite was arrested on the charge of attempted coercion and enticement of a minor in violation of 18 U.S.C. § 2422(b). Following a preliminary/detention hearing on February 29, 2012, Magistrate Judge Alan Kay, applying 18 U.S.C. § 3142, ordered that Dr. Hite be released into the community while he was awaiting trial. Order (Mar. 9, 2012), ECF No. [7]. As part of his pretrial conditions of release, Dr. Hite was ordered to 24-hour home confinement subject to
On February 13, 2013, Paul David Hite was convicted by a jury on two counts of attempted coercion and enticement of a minor in violation of 18 U.S.C. § 2422(b). After the jury returned the guilty verdict, the government made an oral motion requesting that Dr. Hite be detained pending sentencing pursuant to 18 U.S.C. §§ 3143 and 3145, which this Court granted after hearing argument on the issue. Tr. 9:7-17:1 (Feb. 13, 2013), ECF No. [164]. The Court denied Dr. Hite's written motion for release pending sentencing, filed after the Court's oral ruling. Def.'s Mot. for Release Pending Sentencing, ECF No. [100]; Order (Jun. 20, 2013), ECF No. [134]. On July 2, 2013, this Court sentenced Dr. Hite to 264 months of imprisonment followed by supervised release for a period of 120 months on each count to run concurrently, and imposed a $500,000.00 fine. Judgment, ECF No. [156].
Following sentencing, Dr. Hite filed a timely appeal of his conviction with the United States Court of Appeals for the District of Columbia Circuit ("D.C.Circuit"). Dr. Hite also filed with this Court a motion requesting his release pending appeal which the Court denied pursuant to 18 U.S.C. § 3145.
On October 21, 2014, the D.C. Circuit issued an opinion vacating Dr. Hite's conviction and remanding the case for a new trial on the grounds that the jury instructions failed to accurately state the elements of the statute under which Dr. Hite was convicted. See generally United States v. Hite, 769 F.3d 1154 (D.C.Cir. 2014). The D.C. Circuit rejected Dr. Hite's primary argument regarding statutory interpretation, holding "that a defendant can be convicted under § 2422(b) for communicating with an adult intermediary, if the defendant's communications with the intermediary are aimed at persuading, inducing, enticing, or coercing the minor." Id. at 1158, 1160-66. On October 23, 2014, Dr. Hite filed a motion requesting his release as a defendant awaiting a new trial pursuant to 18 U.S.C. § 3142. Def.'s Mot. for Order Setting Conditions of Release, ECF No. [181]. The Court found that Dr. Hite was properly treated as a defendant found guilty and seeking appeal pursuant to 18 U.S.C. §§ 3143(b) and 3145(c) at that time because the mandate had not yet issued from the D.C. Circuit. Memo. Op. (Oct. 29, 2014), at 2-3, ECF No. [185]. Applying that legal standard, the Court denied without prejudice the motion for release. Order (Oct. 29, 2014), ECF No. [184]. The mandate vacating Dr. Hite's conviction and remanding this matter for a new trial issued from the D.C. Circuit on November 25, 2014. Mandate, ECF No. [187]. Dr. Hite now seeks release as a
The Bail Reform Act, 18 U.S.C. § 3141 et seq., lays out limited circumstances under which a defendant may be detained pending trial. The Act provides that a defendant may be detained if the district court finds by clear and convincing evidence "that no condition or combination of conditions will reasonably assure the safety of any other person and the community...." 18 U.S.C. § 3142(f). Further, a defendant may be detained under the Act if the district court finds by a preponderance of the evidence "that no combination of conditions — either those set out in the Bail Reform Act itself or any others that the magistrate or judge might find useful — can `reasonably' assure that the defendant will appear for trial." United States v. Xulam, 84 F.3d 441, 442 (D.C.Cir. 1996) (per curiam); see also 18 U.S.C. § 3142(g).
However, where there is probable cause to believe that a defendant has committed an offense involving a minor victim, a rebuttable presumption arises that no conditions or combination of conditions will reasonably assure either the defendant's appearance or the safety of the community.
18 U.S.C. § 3142(g).
Dr. Hite argues that the Court should grant his request for release and
The charges against Dr. Hite weigh in favor of detention. Dr. Hite is charged with two counts of attempted coercion and enticement of a minor in violation of 18 U.S.C. § 2422(b). It is clear that these are serious charges against Dr. Hite. A violation of section 2422(b) is a crime of violence as defined by 18 U.S.C. § 3156(a)(4)(C), and a crime that involves minor, albeit in this case fictitious, victims. Further, Dr. Hite does not appear to contest the gravity of the charges. See Def.'s Memo. at 6 ("Before his first trial, Dr. Hite was released on bail, despite the acknowledged seriousness of the charged offense...."). Accordingly, the Court finds that this factor weighs in favor of Dr. Hite's detention pending trial.
The weight of the evidence against Dr. Hite also supports his detention. The D.C. Circuit's opinion in this matter details the evidence presented against Dr. Hite at his original trial. United States v. Hite, 769 F.3d 1154, 1158-59 (D.C.Cir.2014). Based on this opinion, the Court shall provide a brief synopsis for the purposes of its analysis. Dr. Hite was arrested after engaging in online conversations with "DCped," a person purporting to be single man in the District of Columbia area who was a self-described "[n]o limit perv." Id. "DCped," later known as J.P., was in actuality the online persona created by Metropolitan Police Department Detective Timothy Palchak. Id. at 1158. J.P. purported to have an ongoing sexual relationship with the twelve-year-old daughter of his girlfriend and to have sexual contact with his three-year-old nephew. Id. Dr. Hite indicated that he had previously been sexually active with an eleven-year-old boy. Id.
During their online conversations, Dr. Hite and J.P. detailed their plans to engage in sexual encounters with the minors. Id. Dr. Hite asked if J.P. had ever given the minors alcohol to relax them. Id. When J.P. responded that he had given the girl alcohol and the nephew Benadryl, Dr. Hite responded "[n]ice on both counts." Id. After J.P. suggested a three-way sexual encounter with the twelve-year old girl, Dr. Hite asked J.P. to show his picture from an online profile to the girl because he wanted her to be "into it." Id. "On one occasion, J.P. asked Hite, `are you sure your [sic] not just into the fantasy of this? ?' ... Hite responded, `it has been ages since I have been active ____ FACT, never played with a boy your nephew's age but VERY interested.'" Id. at 1159. Dr. Hite also indicated to J.P. that they should give the boy Bendryl in part to distort the boy's recollection. Id. at 1158-59. After chatting online for several days, J.P. informed Dr. Hite that he would be babysitting his nephew and the
The parties in their briefs compare the weight of the evidence against Dr. Hite at this juncture with the weight of the evidence against him prior to his first trial when he was released. Dr. Hite argues that the evidence does not weigh as heavily against him now because the D.C. Circuit has ruled that the Court used a jury instruction that was too broad and that the Court improperly excluded the testimony of Dr. Hite's proposed expert witness, Dr. Berlin, who Dr. Hite argues will testify as to the "central focus" of his defense, that Dr. Hite is a fantasist with no actual sexual interest in children. Def.'s Memo. at 7-9. The government contests Dr. Hite's representations for two reasons. First, the government argues that while the D.C. Circuit vacated Dr. Hite's conviction based on an erroneous jury instruction, the modification of the jury instruction will not significantly increase Dr. Hite's likelihood of success on re-trial. Govt.'s Opp'n at 6-7. Second, the government notes that it intends to present its own expert to counter Dr. Berlin's testimony. Govt.'s Opp'n at 7.
The Court finds that the weight of the evidence against Dr. Hite remains strong for the reasons described herein and, accordingly, this factor weighs in favor of detention. The Court first notes that when the issue of release was pending before Judge Lamberth, Dr. Hite argued that he had not violated section 2422(b) because he only communicated with an adult intermediary and never communicated directly with a minor. Memo. Op. (Mar. 9, 2012), at 8. While Judge Lamberth ultimately found for the purposes of probable cause that section 2422(b) did not require direct communication between the defendant and a minor, id. at 10, he noted at that time that "there is at least some modicum of doubt about what exactly the government would need to prove in this defendant's case," id. at 11. After the D.C. Circuit's opinion it is now clear: "Where an adult intermediary is involved,... `using the mail or any facility or means of interstate or foreign commerce' pursuant to § 2422(b) is satisfied if the defendant knowingly and actively employs such interstate means for the essential function of communicating with the adult intermediary for the purpose of persuading, inducing, enticing, or coercing the minor." United States v. Hite, 769 F.3d 1154, 1165 (D.C.Cir.2014). Accordingly, the government's case for detention is now stronger based on the D.C. Circuit's holding regarding the statutory interpretation.
Turning next to the expert testimony, it appears that the parties plan to present competing expert testimony at trial. Dr. Hite presents a letter from Dr. Berlin that was prepared after trial based on his pre-trial examination of Dr. Hite. The letter expresses Dr. Berlin's professional opinion that Dr. Hite was engaged in fantasy conversations and that his risk of future recidivism is low. See generally Def.'s Reply, Ex. A (Letter from Dr. Berlin), ECF No. [189-1]. The government simply indicates that it also plans to present expert testimony. Govt.'s Opp'n at 7. At this time, it is purely speculative how much weight the jury will give either party's expert witness and, accordingly, the Court concludes that the potential testimony of Dr. Berlin coupled with a possible government expert does not tip this factor towards permitting Dr. Hite's release. Indeed, the Court finds that there is strong evidence against Dr. Hite and, accordingly, this factor weighs in favor of ordering Dr. Hite's detention pending re-trial.
Dr. Hite has been incarcerated since the jury returned the verdict on February 13,
Dr. Hite has substantial financial resources. His self-reported net worth during the presentence investigation was over $6 million, and included several vehicles and pieces of real estate as well as retirement and bank accounts. Id. ¶ 91. Dr. Hite lives in close proximity to his retired parents, and appears to be the member of tight-knit, loving, and supportive family that includes his parents, his brother, and his brother's family. Id. ¶¶ 62-64. His parents served as his custodians prior to his original trial and his family members attended the proceedings. After trial, Dr. Hite's mother, who was present throughout the proceedings, indicated that she did not agree with the decision of the jury. Specifically, Dr. Hite's mother stated, "He has never given us one ounce of trouble in his life. This is a travesty of justice. He is not guilty of this and I think in the end that will be proven. This has been a nightmare for our family and is totally unjustified." Id. ¶ 68.
As the Court will discuss further infra, there are certain elements of this factor that weigh both in favor and against setting conditions for Dr. Hite's release. Specifically, the Court notes that Dr. Hite's ties to his family and to his community are strong. He also has a track record of full compliance with his previous terms of his release. However, the Court also notes that Dr. Hite's considerable assets as well as his ability to earn a future living were he to flee, weigh in favor of detention. Finally, the Court has some concerns about the appropriateness of Dr. Hite's parents serving as custodians were he to be released. The Court shall expound on these specific facts below.
The Court shall briefly discuss the nature and seriousness of the danger posed to other persons or the community if Dr. Hite is to be released. However, the Court notes that since it makes its finding based on Dr. Hite's risk of flight, this factor is considered but is given limited weight in its analysis. United States v. Bikundi, No. 14-030, 47 F.Supp.3d 131, 137-38, 2014 WL 2761209, at *5 (D.D.C. Jun. 18, 2014); United States v. Vo, 978 F.Supp.2d 41, 46 (D.D.C.2013); United States v. Hassanshahi, 989 F.Supp.2d 110, 117-18 (D.D.C.2013).
Dr. Hite argues that he does not pose a danger to others or the community based on Dr. Berlin's letter indicating that Dr. Hite would not engage in sexual conduct with real-world children were he to be released. Def.'s Memo. at 8-9; Def.'s Reply at 6; Ex. A (Letter from Dr. Berlin). It is clear to the Court that Dr. Hite was extremely cautious in his dealings with J.P. such that the Court agrees that it is unlikely that Dr. Hite would engage in sexual conduct with a minor while released pending re-trial. See United States v. Hite, 769 F.3d 1154, 1159 (D.C.Cir.2014). However, if Dr. Hite were to flee the
Further, the evidence of the child pornography found on Dr. Hite's computer was not before Judge Lamberth when he ordered Dr. Hite's release pending trial. It is clear that possession of child pornography is a crime that poses a serious danger to other persons as it is not a victimless crime. United States v. Accardi, 669 F.3d 340, 345 (D.C.Cir.2012) ("As the victim impact statements in this case show, child pornography creates an indelible record of the children's participation in a traumatizing activity, and the harm to the child is only exacerbated by the circulation of the materials."). Dr. Hite previously was ordered not to access the internet during the term of his supervised release and there is no indication that he violated this condition. However, the Court is not confident that Dr. Hite would not access child pornography if he flees.
In order to determine whether release is appropriate, the Court must consider whether any combination of conditions of release would reasonably ensure Dr. Hite's appearance at re-trial. Dr. Hite argues that the Court should rely on previous orders entered by Magistrate Judge Kay and Judge Lamberth that set the conditions of Dr. Hite's release prior to his first trial. Specifically, Dr. Hite argues that those conditions of release should be imposed at this phase. The terms of Dr. Hite's prior conditions of release follow: 24-hour home confinement with supervision by Pretrial Services; 24-hour electronic and/or GPS monitoring; supervision by Dr. Hite's parents who were required to live in the home with him; no contact with minor children; no internet access; and no travel outside of the Richmond area, except for Court appearances. The Court also imposed a $650,000 lien on Dr. Hite's home in Richmond, Virginia. With regard to the instant motion, Dr. Hite also noted his willingness to place the "bulk" of his liquid assets in a trust that could not be accessed during the pendency of the trial and Dr. Hite's parents' willingness to place a lien on their home as additional conditions of release. Def.'s Memo. at 10 n.1.
Taking into account the four factors described above, the Court finds that at this juncture, there are no conditions of release that would reasonably assure Dr. Hite's appearance at re-trial were he to be released. While the Court notes that Dr. Hite was fully compliant with the terms of his release prior to his first trial, additional information now available to the Court and the passage of time requires that the Court make its consideration anew.
Dr. Hite has now served 21 months of a 264-month sentence and is 59 years old. While he successfully appealed his conviction, he faces re-trial and another lengthy sentence if he is convicted based on the strong evidence against him. Dr. Hite seeks to counter this claim by pointing out that he had been housed under worse conditions in D.C. Jail prior to his earlier release. Def.'s Reply at 7. The Court is not persuaded by this argument. Dr. Hite was housed in D.C. Jail for 17 days after his arrest and prior to the issuance of Judge Lamberth's opinion. This short stay at the D.C. Jail can hardly be compared to serving over a year and a half in a federal facility with the potential that the imposed sentence may conceivably run the course of one's natural life. Further, while Dr. Hite's counsel proffers that Dr. Hite has been fully aware of the severity of a possible sentence throughout the proceedings, Def.'s Memo. at 10, there is a significant difference between being aware of a potential sentence and actually beginning
The Court also is not persuaded that the forfeiture of the bulk of Dr. Hite's liquid assets would deter him from fleeing. At sentencing, Dr. Hite's self-reported assets were over $6 million. While Magistrate Judge Kay and Judge Lamberth imposed a $650,000 lien on Dr. Hite's house prior to trial as a condition of his release, Dr. Hite's sizeable assets were not known at that time. Indeed, the extent of Dr. Hite's assets only became known to this Court during the presentence investigation after trial. PSR ¶ 91. Dr. Hite proposes that the Court place the bulk of his liquid assets in a trust during the pendency of the new trial so that they cannot be accessed. However, the Court is not convinced that the forfeiture of Dr. Hite's self-reported assets is a deterrent from fleeing at this time. Indeed, if Dr. Hite were to flee and forfeit his assets, he still has the ability to make a living outside of this country given his medical training and his lengthy career as an anesthesiologist. Notably, Dr. Hite's employment was terminated as a result of the instant charges brought against him and was not based in any way on his skills as a medical doctor. The Court also notes that Dr. Hite may have other financial resources that were unreported to the Court or friends or family members who may be able to provide financial assistance in his flight. Dr. Hite also has proposed that the Court place a lien on his parents' home that will be forfeited in the event that he flees. The Court notes that this condition would provide some assurance that Dr. Hite would not flee. However, while the Court does not suggest that Dr. Hite would flee and leave his parents, who are in their 80s, destitute, the parents' residence is unlikely their only financial resource were it to be forfeited.
Finally, the Court notes that it has concerns about the appropriateness of Dr. Hite's parents serving as his custodians were he to be placed on release. The Court first emphasizes that Dr. Hite's mother is most certainly entitled to her opinion about the proceedings in this matter and it is clear to the Court that Dr. Hite is the member of a loving family. However, Dr. Hite's mother's statements were made after observing the trial and, at the very least, after evidence was presented that Dr. Hite was in possession of child pornography, an offense for which he was not charged but which is not a victimless crime. Given Dr. Hite's mother's strong feelings about the injustice that she perceives to have been committed in this action, the Court is not convinced that if offered the choice between obeying an order of this Court and assisting her son in a manner that she deemed proper and just, that Dr. Hite's mother would heed to this Court's order. Specifically, the Court is concerned that the family may be complacent with Dr. Hite fleeing the jurisdiction to avoid re-trial. Indeed, Dr. Hite's mother's feelings about the proceedings and the charges against Dr. Hite is information that also was not before Magistrate Judge Kay and Judge Lamberth when they determined that Dr. Hite's parents should serve as his custodians during his release pending trial.
Based on the Court's application of the four factors enunciated in 18 U.S.C. § 3142(g), the Court finds that Dr. Hite has rebutted the presumption that his detention is warranted by producing credible evidence contrary to the statutory presumption, namely his compliance with the conditions of his release prior to his first
For the foregoing reasons, the Court finds that Dr. Hite has rebutted the presumption pursuant to 18 U.S.C. § 3142(e)(3)(E) that no combination of conditions will ensure his appearance at re-trial if he is released. Further, the Court finds that the government has established by a preponderance of the evidence that no combination of conditions of release can reasonably assure that the defendant will appear for trial pursuant to 18 U.S.C. § 3142(g). Accordingly, Dr. Hite's [186] Motion for an Order Setting Conditions of Release Pursuant to 18 U.S.C. § 3142 is DENIED. The Court will proceed to retry this case as soon as the parties are prepared to do so.