896 F. Supp. 2d 17
D.D.C.2012Background
- Defendant Hite is charged by superseding indictment with two counts of attempted coercion and enticement of a minor under 18 U.S.C. § 2422(b).
- Hite communicated with JP, an undercover officer posing as an intermediary, about sexual acts involving a minor via chat and phone over several days.
- The parties discussed meeting to engage in sexual activity with a three-year-old and a twelve-year-old.
- The Government alleges Hite intended to entice the minors using the intermediary’s influence over them.
- The court previously rejected direct-communication limitations and allowed an intermediary-based theory, allowing development of constitutional issues.
- Hite moves to dismiss counts on constitutional grounds; the court denies the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2422(b) is overbroad or vague as applied to intermediaries | Gagliardi/Meek: statute targets conduct, not protected speech | Hite: indirect intermediary communications lack direct link to harm | Not overbroad; conduct, not protected speech; indirect communication permissible |
| Whether § 2422(b) provides adequate notice of prohibited conduct | Statute clearly prohibits enticing minors via any intermediary | Statutory terms are ambiguous without narrowing | Not vague; plain meaning covers indirect communications through intermediaries |
| Whether the doctrine of constitutional avoidance applies to limits on § 2422(b) | There is ambiguity warranting alternative readings | Canonical avoidance applies if serious constitutional question exists | Canon not triggered; plain reading stands; avoidance not applicable |
| Whether the government must prove the intermediary’s influence over the minor as a factual element | Influence/control element satisfied by intermediary relationship | Factual issue for jury; intermediate influence required but not limited to parent/guardian |
Key Cases Cited
- United States v. Gagliardi, 506 F.3d 140 (2d Cir. 2007) (statute criminalizes enticement, not speech; conduct focus)
- United States v. Tykarsky, 446 F.3d 458 (3d Cir. 2006) (conduct, not speech; overbreadth not shown)
- United States v. Meek, 366 F.3d 705 (9th Cir. 2004) (enticing minors via conduct; speech not protected)
- United States v. Bailey, 228 F.3d 637 (6th Cir. 2000) (offers to commit illegal conduct not protected speech)
- United States v. Williams, 553 U.S. 285 (2008) (offers to obtain child pornography not protected; standards)
- United States v. Panfil, 338 F.3d 1299 (11th Cir. 2003) (plain meaning of persuade/induce/coerce sufficient notice)
- United States v. Muentes, 316 F. App’x 921 (11th Cir. 2009) (intermediary (pimp) acceptable; influence over minor governs)