United States v. Paul Hite, 413 U.S. App. D.C. 66

Background

Hite was convicted under 18 U.S.C. § 2422(b) of attempting to persuade a minor to engage in unlawful sexual activity, based on online chats he had with an undercover detective posing as an intermediary for minors.
The Government presented evidence that Hite used the Internet and telephone to communicate with the intermediary in order to induce a 12-year-old girl and a 3-year-old boy to engage in sexual activity.
Hite argued that § 2422(b) requires direct communication with a minor and not communications with an intermediary, and that the district court erred in jury instructions and handling expert testimony.
During the chats and planned meeting, Hite discussed acts with the fictitious minors and suggested methods to sexually exploit them, including plans for a webcam session that never occurred.
A search of Hite’s home revealed child-pornography images and related internet history; the district court admitted other acts evidence to show intent but excluded the defense expert and limited cross-examination.
The court vacated Hite’s conviction and remanded for a new trial due to erroneous jury instructions; the court otherwise rejected direct-contact-only theories and considered evidentiary rulings for potential retrial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does § 2422(b) require direct contact with a minor?	Hite argues § 2422(b) requires direct minor communication.	The Government argues intermediaries may be used to persuade, induce, entice, or coerce a minor.	Intermediaries are permissible if aimed at transforming the minor's will.
Is there a sufficient ‘substantial step’ via an intermediary to support attempt under § 2422(b)?	Hite contends the step with intermediaries is insufficient.	The Government asserts the intermediary communications can constitute a substantial step.	Evidence supports a substantial step through an intermediary; sufficiency argument fails.
Were the jury instructions erroneous in defining intent under § 2422(b)?	Hite contends the instructions allowed conviction without proving transformation of the minor's will.	The Government argues instructions properly reflect the statute's text and intent.	Instructions were erroneous and prejudicial; remand for new trial is required.
Was the district court's exclusion of Dr. Berlin's expert testimony correct?	Hite argues Berlin’s testimony would illuminate fantasy vs. intent and be probative.	The Government argues exclusion was proper under Rule 702 and Rule 16 disclosures.	Exclusion was improper; Berlin's testimony should be considered on remand.
Did the district court abuse its discretion in limiting impeachment of Detective Palchak?	Hite contends Palchak’s prior testimony should be impeached to show credibility.	The district court properly limited impeachment due to potential confusion and relevance.	No abuse of discretion; impeachment ruling stands.

Key Cases Cited

United States v. McMillan, 744 F.3d 1033 (7th Cir. 2014) (recognizes intermediary permissible under § 2422(b))
United States v. Nestor, 574 F.3d 159 (3d Cir. 2009) (intermediary communications can support § 2422(b) claim)
United States v. Berk, 652 F.3d 132 (1st Cir. 2011) (interprets § 2422(b) with intermediary use)
United States v. Spurlock, 495 F.3d 1011 (8th Cir. 2007) (notion of intermediary to enticement under § 2422(b))
United States v. Lee, 603 F.3d 904 (11th Cir. 2010) (substantial step through intermediary actions)
United States v. Laureys, 653 F.3d 27 (D.C. Cir. 2011) (dissent discussed intermediary theory; cited in context)
United States v. Dworken, 855 F.2d 12 (1st Cir. 1988) (limits on interpretation of substantial steps)
United States v. Engle, 676 F.3d 405 (4th Cir. 2012) (discusses § 2422(b) interpretation and mens rea)