UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) UNITED STATES OF AMERICA, ) ) v. ) Criminal No. 16-cr-0030 (KBJ) ) CHARLES HILLIE, ) ) Defendant. ) )

MEMORANDUM OPINION A federal grand jury has indicted Charles Hillie (“Hillie” or “D efendant”) of seven counts of production and possession of child pornography i n violation of 18 U.S.C. §§ 2251 and 2252, and ten counts of child sexual abuse in v iolation of District of Columbia law. ( See Superseding Indictment (“Indictment”), ECF No. 9, at 1–14 (citing 18 U.S.C. §§ 2251(a), (e), 2252(a)(4)(B); D.C. Code §§ 2 2-3008, -3009, -3009.02, -3020(a)(2), (a)(5)).) 1 Hillie has filed seven separate motions challenging various aspects of this prosecution. ( See ECF Nos. 17–23.) 2 Before this Court at present is the motion in which Hillie raises questions about the suff iciency of the indictment, which charges Hillie with multiple counts of nearly id entical offenses. ( See Motion to Dismiss Indictment (“Def.’s Mot.”), ECF No. 19.) Accordi ng to Hillie, the language of the charging document does not provide an adequate d escription of the

1 Page numbers herein refer to those that the Court’s electronic case filing system automatically assigns.

2 The motions are: (1) a motion to sever counts (ECF No. 17); (2) a m otion to dismiss counts One through Seven of the indictment (ECF No. 18); (3) a motion to di smiss the indictment in its entirety (ECF No. 19); (4) a motion for a Bill of Particulars (ECF No. 2 0); (5) a motion to suppress statements and request for an evidentiary hearing (ECF No. 21); (6) a moti on to suppress tangible and electronic evidence (ECF No. 22); and (7) a motion to suppress identificati on evidence (ECF No. 23).2 “place and time” that the allege d offenses took place, nor does itspecify “the nature or type of ‘sexually explicit conduct’” at issue. ( Id. at 7.) Instead, says Hillie, the indictment merely quotes the broad language of the child pornog raphy statutes without including any facts that specify the particular conduct of Hillie’ s that is the basis of the government’s charges. ( See id. ; see also Reply to United States’ Suppl. Resp. to Def.’s Mot. (“Def.’s Suppl. Br.”), ECF No. 42, at 3–4.) Hillie argues th at these deficiencies amount to insufficient notice of the “nature of the accusations against him” and prevent him from “rais[ing] a double jeopardy defense in the event he i s charged with similar offenses in the future” (Def.’s M ot. at 7–8), all in violation o f his Fifth Amendment right to due process and Sixth Amendment right to be appraised of the nature and cause of the criminal charges against him ( see id. at 5–8). For the reasons explained below, this Court agrees with Hillie’s arguments, at least as far as the federal child pornography counts are concerned. In this Court’s view, the challenged indictment fails to provide minimally required fa ctual information regarding the conduct of Hillie’s that the government says consti tutes production and possession of child pornography in violation of federal law (Count s One through Seven), and as a result, the Court concludes that Hillie’s Motion to Dismiss the Indictment must be GRANTED IN PART , and that Counts One through Seven of the indictment must be DISMISSED WITHOUT PREJUDICE . Because the dismissal of the federal child pornography counts impacts this Court’s continue d exercise of jurisdiction over the remaining state law charges, this Court’s d ismissal order will be
HELD IN ABEYANCE for a period of 14 days, to provide the government with an3 opportunity to consider the path forward and, if it so chooses, see k a superseding indictment that comports with the Constitution and the Federal Rules.

I. BACKGROUND A. The Criminal Charges On March 22, 2016, a federal grand jury returned a 17-count indi ctment against Hillie, and the government filed that charging document with this Court. ( See Indictment, ECF No. 9.) 3 The indictment charged Hillie with seven violations of federal law: two counts of Production of Child Pornography in viol ation of 18 U.S.C. § 2251(a) (Counts One and Two); one count of Possession of Child Pornography in violation of 18 U.S.C. § 2252(a)(4) (Count Three); and four counts of Attempted Production of Child Pornography in violation of 18 U.S.C. § 2251( a) and (e) (Counts Four, Five, Six, and Seven). ( See Indictment at 1–6.) The indictment also alleged that Hillie committed several serious child sex abuse offenses in vi olation of D.C. law: one count of First Degree Child Sexual Abuse with Aggravating Circum stances in violation of D.C. Code §§ 22-3008, -3020(a)(2), and (a)(5) (Count Eight); eigh t counts of Second Degree Child Sexual Abuse with A ggravating Circumstances in vio lation of D.C. Code §§ 22-3009, -3020(a)(2), and (a)(5) (Co unts Nine, Ten, Eleven, andThirteen through Seventeen); and one count of Second Degree Sexual Abuse of a Mi nor with

3 “The government’s formal prosecution against Charles Hillie [ac tually] began on or about July 29, 2015, in the Superior Court of the District of Columbia when a complaint was filed” charging Hillie “with one count of First Degree Child Sexual Abuse and one coun t of Second Degree Child Sexual Abuse.” (Def.’s Mot. at 2.) On February 23, 2016, a federal g rand jury indicted Hillie of one count of Production of Child Pornography and one count of First Degree C hild Sexual Abuse based on the same conduct at issue in the Superior Court case ( see id. at 2–3; Original Indictment, ECF No. 2), and “[a]fter the federal indictment was returned, the Superior Cour t case was dismissed” (Def.’s Mot. at 3 n.4). The current charges were brought on March 22, 2016, in t he form of a superseding indictment.4 Aggravating Circumstances i n violation of D.C. Code §§ 22-3009. 02, -3020(a)(2), and (a)(5) (Count Twelve). ( See Indictment at 6–14.) 1. The Charged Federal Offenses The child pornography counts (Counts One through Seven) charge Hi llie with violations of two statutory provisions: namely, 18 U.S.C. §§ 2251 and 2252, as amended. Congress first enacted these statutes in the Protectio n of Children Against Sexual Exploitation Act of 1977, Pub. L. No. 95–225, 92 Stat. 7 , in order to sanction the use of minors in sexually ex plicit depictions and thereby erad icate the harms flowing from the clandestine distribution of child pornography. See Am. Library Ass’n
v. Barr , 956 F.2d 1178, 1181 (D.C. Cir. 1992) (summarizing the legislat ive history of 18 U.S.C. §§ 2251, 2252, and 2256). Section 2251(a) broadly crimina lizes the production of child pornography; it punishes anyone who, in connection with in terstate commerce, “employs, uses, persuades, induces, entices, or coerc es any minor to engage in . . . any sexually explicit conduct for the purpose of produ cing any visual depiction of such conduct[.]” 18 U.S.C. § 2251(a). Section 2252(a) makes knowing possession of child pornography unlawful; specifically, possession of “1 or m ore books, magazines, periodicals, films, video tapes, or other matter whi ch contain any visual depiction . . . if—(i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (ii) such visual dep iction is of such conduct[.]” Id. § 2252(a)(4)(B). The term “sexually explicit conduct”—which appears in both chil d pornography statutes—is defined as, inter alia , “actual or simulated . . . lascivious exhibition of the genitals or pubic area of any person[.]” Id. § 2256(2)(A)(v). Furthermore, Congress has criminalized not only the completed acts of producing and posse ssing child5 pornography, but also the attempt to commit those crimes. See id. § 2251(e) (prescribing punishment for “[a]ny individual who violates, or attempts or conspires to violate, [§ 2251(a)]”); see also id. § 2252(b)(2) (prescribing punishment for “[w]hoever violates, or attempts or conspire s to violate, [§ 2252(a)(4)]”). To prove attempt, the government must show that the defendant (1) took a “substantial step” toward committing the crime, such as “utiliz[ing] another person to perf orm an element” of the offense, and (2) acted “with the clear intent to cause the harm proscribed by the
statute.” United States v. Hite , 769 F.3d 1154, 1162 (D.C. Cir. 2014). 2. The Language In The Indictment Counts One and Two of the indictment against Hillie—the producti on counts— are substantively identical with the exception of the date rang es alleged. Count One alleges that the violative conduct occurred sometime between July1, 2008, and August 30, 2010, while Count Two charges Hillie with a violation that all egedly occurred sometime between July 1, 2008, and August 30, 2011. These two counts otherwise state the allegations against Hillie in identical terms, using solely the words of the statute, as follows: Between on or about July 1, 2008 and on or about [either August30, 2010 or August 30, 2011], in the District of Columbia, the defen dant, CHARLES HILLIE, did knowingly and intentionally employ, use, persuade, induce, entice, and coerce J.A.A., [a] . . . minor fem ale, to engage in sexually explicit conduct for the purpose of producin g any visual depiction of such conduct, knowing and having reason to know that such visual depiction would be transported or transmitted using any means or facility of interstate or foreign commerce or knowing and having reason to know that such visual depiction would be trans ported or transmitted in or affecting interstate or foreign commerce; and which visual depiction was produced or transmitted using materials th at had been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer; and the visual de piction was transported or transmitted using any means or facility of i nterstate6 or foreign commerce or the visual depiction was transported or transmitted in or affecting interstate or foreign commerce. (Indictment at 1–2.) Counts Four, Five, Six, and Seven—the attempted production counts—also recite this same statutory language with respect to the underlying conduct, but each of these counts adds the words “attempt to” after “did knowingly and inte ntionally[.]” ( Id. at 3– 5; see, e.g. , id. at 3 (stating, as to Count Four, that Hillie “did knowingly and intentionally attempt to employ, use, persuade, induce, entice, and coerce J.A.A.” (emphasis added)).) Furthermore, as with the first two counts, the four attempt counts differ slightly with respect to the date ranges upon which the un derlying conduct allegedly occurred. ( See id. at 3 (Count Four covers attempted conduct during a period ranging from May 1, 2007, to May 31, 2012); id. at 4 (Count Five covers attempted conduct during a period ranging from July 1, 2008, to August 30, 2011—the same date range as Count Two); id. at 5 (Count Six covers attempted conduct that allegedly occurred on October 12, 2011); id. (Count Seven covers attempted conduct during a period ranging from July 1, 2011, to May 31, 2012).) Lastly, the child-pornography-possession count (Count Three) rea ds: Between on or about July l, 2008, and on or about August 30, 201 1, in the District of Columbia, the defendant, CHARLES HILLIE, did knowin gly possess at least one matter which contained any visual depictio n that had been shipped or transported using any means or facility of inte rstate or foreign commerce, or in or affecting interstate or foreign comm erce; and which was produced using materials which had been mailed or shi pped or transported using any means or facility of interstate or foreign commerce, or in or affecting interstate or foreign commerce; and the production of such visual depiction involved the use of an eleven-to-fourteen-year -old minor female engaging in sexually explicit conduct, and such visual d epiction was of such conduct. ( Id. at 3.)7 3. The D.C. Sexual Abuse Charges In addition to the federal child pornography offenses described above, the indictment charges Hillie with o ne count of sexual abuse of a mi nor (Count Twelve) and nine counts of sexual abuse of a child in the first and sec ond degree (Counts Eight through Eleven and Thirteen through Seventeen), all in violationof District of Columbia law. ( See Indictment at 6–14.) 4 The relevant statutory provisions penalize anyone who, “being 18 years of age or older,” has sexual contac t with a “minor” with whom he or she has a significan t relationship, D.C. Code § 22-3 009.02 (“Second degree sexual abuse of a minor”), or who engages in a sexual act or se xual contact with a “child” at least 4 years younger than the offender, see id. § 22-3008 (“First degree child sexual abuse”); id. § 22-3009 (“Second degree child sexual abuse”). The D.C. Code defines a “sexual act” as, inter alia , “[t]he penetration, however slight, of the anus or vulva by a hand or finger or by any object, with an intent to ab use, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person[, ]” id. § 22-3001(8)(C), and “sexual contact” as “the touching with any clothed or unclo thed body part or any object, either directly or through the clothing, of the genital ia, anus, groin, breast, inner thigh, or buttocks of any person” with the same intent, id. § 22-3001(9). With respect to the state law sex abuse charges that have been bro ught against Hillie, the indictment specifies certain sexual acts and sexual conduct that Hillie is alleged to have undertaken with two different children. Each count tracks the D.C.

4 In addition to having different degrees of child sex abuse offe nses, D.C. law contains separate statutory provisions regarding the sexual abuse of children tha t vary based upon the age of the victim. As pertinent to nine of the counts in the indictment (Counts Ei ght through Eleven and Thirteen through Seventeen), the D.C. Code defines a “Child” as anyone “who has not yet attained the age of 16 years.” D.C. Code § 22-3001(3). For the purpose of Count Twelve, a “Mi nor” is defined as anyone “who has not yet attained the age of 18 years.” Id. § 22-3001(5A).8 Code’s language and provides somewhat different date ranges. ( See Indictment at 6– 14.) Furthermore, and significantly for present purposes, each c ount alleges the specific act of Hillie’s that is the basis of the charge. ( See, e.g. , id. at 6 (alleging that between July 1, 2007, and August 30, 2010, Hillie “engaged in asexual act with that child, that is, penetration of J.A.A.’s vulva by CHARLES HILLIE ’s finger”); id. at 7 (alleging that between July 1, 2007, and August 30, 2009, Hillie “engaged in sexual contact with that child, that is , contact between CHARLES HILLI E’s hand and J.A.A.’s buttocks”); id. at 8 (charging “contact between CHARLES HILLIE’s hand and J.A.A .’s breast” between July 1, 2007, and May 31, 2012).) The sex abuse c ounts further note (a) the relationship between Hillie and the two victims ( see, e.g. , id. at 6 (“HILLIE had a significant relationship to J.A.A., in that [he] . . . was th e paramour of the person who was charged with any duty or res ponsibility for the health, wel fare, or supervision of J.A.A.”); id. at 10 (noting that Hillie and J.A. had the same relationship)); (b) the age difference between Hillie and that alleged victim ( see id. ); and (c) the fact that Hillie resided in the same dwelling as the victims when the abusive conduct allegedly occurred ( see id. ). B. The Underlying Facts The facts that underlie Hillie’s prosecution are described in various memoranda that the government has filed in this Court, and are as follows . Beginning in 2005, Charles Hillie (who was born in November of 1983) became romant ically involved with a woman who is referred to throughout the parties’ briefs by the i nitials “W-1” or “Jo.A.” ( See Gov’t’s Mot. to Admit Other Crimes Evid., ECF No. 14, at 2.) Jo.A. is “the mother of the two [alleged] victims” involved in this case : “J.A.A. (born in February 1997) and J.A. (born in May 2002).” (Id. ) The government maintains that9 “[b]etween 2005 and his arrest in 2015, the defendant lived on and off with the child victims and [their mother].” ( Id. ) Moreover, at all times relevant to this case, Hillie, Jo.A., J.A.A. and J.A. resided at two locations: first, “an apartm ent on Douglas Road in Southeast, Washington, D.C.[,]” w here they lived between August o f 2007 and June of 2012; and second, “a residence on Good Hope Court in Southeast, Washington, D.C.[,]” where they lived beginning in the summer of 2012. (Id. ) J.A., the younger of the two sisters, was the first to speak up about the alleged sexual abuse. In December of 2012, J.A.’s biological father re tained custody of her after Hillie purportedly “struck J.A. in the face” for trying to tell her mother about the abuse, “causing her to bleed severely from her mouth and nose.” (Gov’t’s Notice, ECF No. 15, at 3.) According to the government, J.A. confided in herbiological father shortly after moving in with hi m, telling him about Hillie’s con duct, which led her father to file a formal report with the police. ( See id .) On January 23, 2013, the D.C. Children’s Advocacy Center interviewed J.A. (who was 10 years o ld at the time); during the interview, J.A. “disclosed multiple instances of sexu al abuse by the defendant” relating to both her and her sister. (Id. ) J.A.’s allegations prompted D.C. government officials to launch a formal investigation into Hill ie. ( See id. at 3 n.1.) On March 29, 2013, “J.A. was shown a confirmation photograph of the defendant[,]” who she called “Mr. Charlie[,]” the man “who had ‘to uched’ her[.]” (Gov’t’s Resp. to Def.’s Mot. to Suppress Identification, ECF No . 26, at 3.) The police also questioned J.A.’s sister, J.A.A., who was 16 years old at th at time and was living with her mother and Hillie. ( See id. at 2.) When questioned, J.A.A. denied J.A.’s allegations, and also said that J.A. had been untruthful in the p ast. ( See id. ; Gov’t’s10 Opp’n to Def.’s Mot. to Suppress Tangible & Elec. Evid., ECF No . 31, at 2–3.) J.A.A.’s adamant refusal to corroborate J.A.’s account led the police to suspend their investigation into the child sex abuse allegations. ( See Gov’t’s Notice at 3 n.1.) The investigation was revived the following year, however, when, in August of 2014, J.A.A. reversed course and admitted to the investigators that she had previously lied about not being abused by Hillie. ( See Gov’t’s Resp. to Def.’s Mot. to Suppress Identification at 3.) J.A.A. said that “[t]he reason [she] was sile nt about the defendant’s abuse was because her mother . . . had warned [her] that their family would be broken apart if [she] disclosed the truth[,]” and had specifically direc ted J.A.A. to lie to the authorities. (Gov’t’s Mot. to Admit Other Crimes Evid. at 4.) J .A.A. said that she had agreed to lie about the abuse in exchange for her mother’s promi se that Hillie “would never touch either of the girls again.” (Id. ) However, according to J.A.A., “the defendant [did] touch[] [her] on the buttocks again” and as a resul t, she decided to tell the authorities about Hillie’s conduct. (Id. ) Thereafter, “J.A.A. reported to Child Protective Services that the defendant, her mother’s boyfriend named ‘Charles Hillie,’ had been sexually abusing her for a period of time.” (Gov’t’s Res p. to Def.’s Mot. to Suppress Identification at 3.) Moreover, and significantly for pr esent purposes, J.A.A. told the police that, in 2011, she had discovered nude photograp hs of herself on the family’s pink laptop computer, and that the photos had been take n without her knowledge. ( See Gov’t’s Opp’n to Def.’s Mot. to Suppress Tangible & Elec. Evid. at 3.) “The investigation was thus re-initiated” in earnest. (Gov’t ’s Resp. to Def.’s Mot. to Suppress Identification at 3.) To this end, on August 8, 201 4, J.A.A. was shown a11 confirmatory photograph of the def endant, who she identified as “Charles Hillie,” and who she claimed had “‘touched’ her on her ‘butt, vagina, breast .’” ( Id. ) On July 29, 2015, the government filed a criminal complaint in th e Superior Court of the District of Columbia, accusing Hillie of first andsecond degree child sexual abuse with respect to J.A.A. and J.A. ( See Superior Court Criminal Complaint, Attach. A to Gov’t’s Opp’n to Def.’s Mot. to Suppress Tangible & Elec. Evid., ECF No. 31-2; see also Def.’s Mot. at 2.) Thereafter, law enforcement officers secured a search warrant that authorized government agents to locate and seize “[a] pink laptop computer, black camera, and any other electronic equipment capable of taking or storing photographs relating to sexual abuse[.]” (Aug. 5, 2015 S earch Warrant, Attach. B to Gov’t’s Opp’n to Def.’s Mot. to Suppress Tangible & Elec. E vid., ECF No. 31-3, at 1.) Officers arrested Hillie at the same time that they execut ed the August search warrant; during the search, they recovered a “black and silver c amera” and a “pink laptop in the same bedroom where the defendant” was hiding. (G ov’t’s Opp’n to Def.’s Mot. to Suppress Tangible & Elec. Evid. at 6.) With these items secured, the officers then requested and received a separate warrant to search the cont ents of the pink laptop and black camera for “[e]vidence of sexual abuse to include dig ital files, records and photographs[.]” (Sep. 9, 2015 Search Warrant, Attach. C to Gov’t’ s Opp’n to Def.’s Mot. to Suppress Tangible & Elec. Evid., ECF No. 31-4, at 1.) During the subsequent forensic ex amination of the laptop’s cont ents, multiple deleted videos that Hillie had creat ed surreptitiously using a h and-held visual recording device were allegedly identified. ( See Gov’t’s Opp’n to Def.’s Mot. to Suppress Tangible & Elec. Evid. at 7.) The videos purportedly capture Hi llie “placing the12 recording device in hidden locations in [J.A.A.’s] bedroom and b athroom prior to J.A.A. entering the room, and [he] is then seen retrieving the re cording device after J.A.A. leaves the room.” ( Id. ) There are apparently six such videos, each of which showcases J.A.A. in the nude (or nude from the waist down) in h er bedroom or bathroom “grooming her genitalia and other parts of her body” when she was “15 years old or younger” (approximately 2007–2012). ( Id. ) C. Procedural History On July 29, 2015, Hillie was formally charged “with one count of First Degree Child Sexual Abuse and one count of Second Degree Child Sexual Abuse” in the District of Columbia Superior Cou rt. (Def.’s Mot. at 2.) A fe deral grand jury first returned an indictment against Hillie in the U.S. District Courtfor the District of Columbia on February 23, 2016 ( see Original Indictment, ECF No. 2), after which the D.C. case was terminated ( see Def.’s Mot. at 3 n.4). A superseding indictment against Hillie—which is the operative pleading for the purpose of the i nstant case—was filed on March 22, 2016. ( See Indictment at 1.) As explained in Part I.A above, the pending federal indictment contains 17 counts, the first seven of which c harge either actual or attempted production of child pornography (Counts One, Two, Fou r, Five, Six, Seven) or possession of child pornography (Count Three) in violation o f federal law, and the remaining ten charge child sex abuse in violation of D.C. law fo r various acts that Hillie allegedly engaged in with respect to J.A.A. and J.A. On July 27, 2016, Hillie’s counsel filed seven separate motions challenging Hillie’s indictment and prosecution in various respects. ( See Def.’s Mot. to Sever Counts, ECF No. 17; Def.’s Mot. to Dismiss Counts One Through Sev en of the Indictment, ECF No. 18; Def.’s Mo t. to Dismiss Indictment, ECF No. 19; Def.’s Mot.13 for a Bill of Particulars, ECF No. 20; Def.’s Mot. to Suppress S tatements & Req. for Evid. Hr’g, ECF No. 21; Def.’s Mot. to Suppress Tangible & Elec. Evid., ECF No. 22; Def.’s Mot. to Suppress Identification Evid., ECF No. 23.) Afterthe motions were ripe, this Court ordered the parties to file supplemental briefs clarifying their positions with respect to Hillie’s Motion to Dismiss the Indictment. ( See Nov. 8, 2016 Min. Order;
see also Def.’s Suppl. Br.; Gov’t’s Suppl. Resp. to Def.’s Mot. to Dismiss Indictment (“Gov’t’s Suppl. Br.”), ECF No. 40.) 1. Hillie’s Motion To Dismiss The Indictment As reflected in the primary and supplemental briefs that the parties have filed, Hillie’s Motion to Dismiss the I ndictment makes two overarching arguments: (1) that the indictment “fails to make a sufficient factual assertion to support the government’s contention that [he] committed the crime alleged in each count”; and (2) that the grand jury “relied on insufficient and erroneous information when char ging [him] with the offenses alleged in Counts One through Seven.” (Def.’s Mot. at1; see also Def.’s Suppl. Br. at 1–11.) With respect to the first contention, Hillie argues that the indictment does not include suffi cient facts to support the crim es charged and to properly appraise him of “the nature of the accusations againsthim.” (Def.’s Mot. at 7.) For example, as to all counts, Hillie claims there is not an adequate description of when and where the alleged offenses took place—i.e., the only “ place” that is identified is “the District of Columbia,” and the “time frame” broadly “span s a period of more than three years.” ( Id. at 6.) In addition, Hillie asserts that the child pornography charges (Counts One through Seven) “fail to describe the nature or type of ‘sexually explicit conduct’” the child allegedly engaged in and “fail to pr ovide a factual basis for the interstate or foreign commerce nexus.” ( Id. at 7; see also Def.’s Suppl. Br. at 6.)14 Furthermore, says Hillie, in the po rnography-production-related counts, there are no facts to indicate the requisite mens rea (i.e., purposeful production of child pornography and knowledge and intent to use a minor) or the specific acts th at he allegedly committed and “the manner in which it is alleged that he” commi tted them. (Def.’s Suppl. Br. at 5.) As to the sex abuse charges (Counts Eight throug h Seventeen), Hillie challenges the lack of factual support for the claim that he act ed intentionally and that he was previously found guilty of sexually offending two or mor e victims. ( See Def.’s Mot. at 7.) Hillie’s second line of argument relates only to the child porno graphy charges. Hillie maintains that a properly instructed grand jury that was looking solely at the facts alleged in the indictment and “the evidence provided to the def ense through discovery” “would have declined to charge” him with the various acts of pro duction and possession of child pornography, because the statute does not criminalize the mere capture of “a nude visual depiction of a minor” not engaging in “sexually expl icit conduct” or the mere passive participation in said production. ( Id. at 9.) As a result, Hillie argues that the grand jurors were deprived of all pertinent information neede d to make an “independent[], fair[], or inte lligent[]” determination to indic t Hillie ( id. at 10), and this deprivation violated his Fifth Amendment rights to due process and to a grand jury’s protection from “arbitrary and oppressive government action” an d from “being harassed by unfounded and vexatious accusations” ( id. at 11). 2. The Government’s Opposition To Hillie’s Indictment Challenge The government responds to Hilli e’s argument that the indictmentcontains insufficient facts by insisting that an indictment need not include the “time, place, circumstances, [and] causes” of an alleged crime. (Gov’t’s Resp. to Def.’s Mot. to15 Dismiss Indictment (“Gov’t’s Resp. to Def.’s Mot.”), ECF No. 32, at 5 (quoting United
States v. Haldeman , 559 F.2d 31, 121 (D.C. Cir. 1976)).) Rather, in the government’s view, it suffices that a criminal indictment contains the elements of the offense set forth in a manner that “sufficiently appraises the defendant of what he must be prepared to meet[,]” and enough facts for the defendant to discern “to what extent he may plead a former acquittal or conviction” with respect to the instant cha rges. ( Id. at 4–5 (quoting
Russell v. United States , 369 U.S. 749, 763–64 (1962)); see also Gov’t’s Suppl. Br. at 3 (asserting that “the test is not whether the indictment might h ave been drawn with greater certainty and exactitude , but whether it sets forth the elements of the offense and sufficiently apprises the defendant of the charges” (citatio n omitted)).) Here, the government says, the indictment “c ontains the elements of the cr imes, the fact that the offenses occurred in the District of Columbia, the identity of the victims, the specific range of dates within which the offenses occurred and the ages of the victims, the specific nature of each sexual a ct, and the statutes violated” (Gov’t’s Resp. to Def.’s Mot. at 4), which, in the government’s view, is all that is nece ssary to place Hillie on notice of the charges against him. ( See Gov’t’s Suppl. Br. at 3 (“[T]he charging language is sufficient, because it tracks the language of the s tatute and provides the defendant with notice of what he has been charged with.”).) The government also argues that, in any event, “the proper reme dy for a need for greater specificity in the indictment” is the issuance of a bil l of particulars, not dismissal, and because the government has already given Hillie a detailed bill of particulars—one was tendered in response to another one of the d efense motions ( see Gov’t’s Bill of Particulars, ECF No. 39)—Hillie’s dismissal argum ent is moot.16 (Gov’t’s Resp. to Def.’s Mot. at 5.) The government also rejects Hillie’s critique of the grand jury’s instructions, arguing that Hillie’s mere suspicion t hat “something unspecified . . . went wrong in the grand jury” does not, witho ut more, warrant dismissal of an indictment or the disclosure of grand jury tran scripts. (Id. at 5–6.) This Court held a hearing on Hillie’s Motion to Dismiss the Ind ictment on November 8, 2016. The supplemental briefing (mentioned above) followed, and the motion is now ripe for this Court’s review.

II. LEGAL STANDARD A facially valid indictment is intended to guarantee at least two core constitutional protections. The first is notice: an “indictment’s main purpose is to inform the defendant of the natu re of the accusation against hi m.” United States v. Hitt , 249 F.3d 1010, 1016 (D.C. Cir. 2001) (internal quotation marks and citation omitted). This protection is established in the Sixth Amendment, which prov ides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation[.]” U.S. Const. amend. VI; see also Fed. R. Crim. P. 7(c)(1) (requiring that a criminal indictment “be a plain, concise , and definite written statement of the essential facts constituting the offense charg ed”). A valid indictment also preserves the Fifth Amendme nt’s protections against abusive criminal charging practices; specifically, its guarantees that a criminal defendantcan only be prosecuted for offenses that a grand jury has actually passed up on, and that a defendant who is convicted of a crime so charged cannot be prosecuted again for that same offense. See
Stirone v. United States , 361 U.S. 212, 218 (1960) (explaining that the Grand Jury Clause of the Fifth Amendment “limit[s] [a defendant’s] jeopardyto offenses charged17 by a group of his fellow citizens acting independently”); see also Puerto Rico v. Sanchez Valle , 136 S. Ct. 1863, 1867 (2016) (“The Double Jeopardy Clause of the Fifth Amendment prohibits more than one prosecution for the ‘same off en[s]e.’”). No less an authority than the Supreme Court of the United States has repeatedly explained that careful drafting in the “language of the indictment is essential because the Fifth Amendment requires that criminal prosecutions be limited to the unique allegations of the indictments returned by the grand jury[,]” Hitt , 249 F.3d at 1016 (citing, inter alia , Russell , 369 U.S. at 768–71), and that “[t]he precise manner in which an indictment is drawn cannot be ignored, because an important function of the i ndictment is to ensure that, in case any other proceedings are taken against [the defen dant] for a similar offen[s]e, . . . the record [will] sho[w] with accuracy to whatextent he may plead a former acquittal or conviction[,]” Sanabria v. United States , 437 U.S. 54, 65–66 (1978) (first and third alteration added) (internal quotation marks and c itations omitted). Given these core constitutional values, an indictment must meet certain requirements in order to survive a pretrial challenge to its fa cial sufficiency. “[A]n indictment is sufficient if it, f irst, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of futur e prosecutions for the same offense.” Hamling v. United States , 418 U.S. 87, 117 (1974). “The [general] test for sufficiency is whether it is fair to require the accused to defend himself on the basis of the charge as stated in the indictment[,]” United States v. Conlon , 628 F.2d 150, 155 (D.C. Cir. 1980); therefore, “[a] n indictment is sufficient if i t clearly informs the18 defendant of the precise offense of which he is accused so thathe may prepare his defense.” Id

. It is important to note that, “[i]n order to meet the requirements of the Sixth Amendment, an indictment must c ontain every element of the offe nse charged and must fairly apprise the accused of the conduct allegedly constituting the offense so as to enable him to prepare a defense against those allegations.” United States v. Dale , 782 F. Supp. 615, 621 (D.D.C. 1991) (emphasis added). To be sure, “t he language of the statute may be used in the [government’s] general description o f an offen[s]e, but it

must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offen[s]e, coming under the general description, with which he is charged.” Hamling , 418 U.S. at 117–18 (emphasis added) (internal quotation marks and citation omitted). Courts have found that itis especially important to include such facts and circumstances in cases where, by solely t racking the statutory language, the indictment’s terms create ambiguity regarding the defendant’s conduct. See United States v. Palfrey , 499 F. Supp. 2d 34, 45 (D.D.C. 2007); see also United
States v. Carll , 105 U.S. 611, 612 (1881) (finding that “it is not sufficient to set forth the offen[s]e in the words of the statute, unless those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offen[s]e intended to be punished” ( emphasis added)). Thus, “[a]n indictment not framed to apprise the defendant ‘with reas onable certainty[] of the nature of the accusation againsthim is defective, although it may follow the language of the statute.’” United States v. Nance , 533 F.2d 699, 701 (D.C. Cir. 1976) (quoting
United States v. Simmons , 96 U.S. 360, 362 (1877)).19 When testing the sufficiency of the charges in an indictment, “the indictment must be viewed as a whole and the allegations [therein] must be accepted as true at this stage of the proceedings.” United States v. Bowdoin , 770 F. Supp. 2d 142, 145 (D.D.C. 2011). Moreover, the court “is limited to reviewing the face of the indictment and, more specifically, the language used to charge the crimes.” United States v. Sunia , 643 F. Supp. 2d 51, 60 (D.D.C. 2009) (emphasis in original) (intern al quotation marks and citation omitted). The key question is whether the allegations in the indictment, if proven, are sufficient to permit a petit jury to conclude that the defendant committed the criminal offense as charged. See United States v. Sanford, Ltd. , 859 F. Supp. 2d 102, 107 (D.D.C. 2012).

III. ANALYSIS The indictment at issue in this case is, for the most part, a ve rbatim recitation of the broad and varied statutory elements of the offenses that are charged against Hillie in the various counts. Among other things, Hillie argues that the “ limited facts contained” in the indictment render this charging document constitutionally d eficient, because the indictment does not “sufficiently ap prise him of what he must be prepared to meet at trial” or “enable him to identify the conduct on which the gove rnment intends to base its case.” (Def.’s Suppl. Br. at 3, 4.) The government responds that “the charging language is sufficient[] because it tracks the language of the statute and provides the defendant with notice of what he has been charged with.” (Gov’t’ s Suppl. Br. at 3.) For the reasons explained below, this Court agrees with Hillie that the federal child-pornography charges that appear in the pending indictment (Counts One through Seven) do not contain any facts that describe the conduct of Hill ie’s that the20 government believes constitutes criminal behavior, and thus, thes e counts of the indictment fail to provide adequate notice of the factual bases forthe myriad, manifestly indistinguishable charges that the government has br ought. Nor do the indictment’s vague child-pornography allegations provide adequate protection for Hillie’s grand jury and double jeopardy rights. As a result, thi s Court concludes that the federal child pornography counts in the instant indictment (Counts One through Seven) are constitutionally deficient and must be dismissed. A. The Child Pornography Charges Violate The Sixth Amendment Because They Fail To Provide Hillie With Adequate Notice 1. Counts One Through Seven Do Not Contain Any Allegations That Reveal The Particular Factual Bases For The Government’s Accusations It is axiomatic that “[a] crime is made up of acts and intent; and these must be set forth in the indictment, with reasonable particularity of t ime, place, and circumstances” if the charging document is to comport with the C onstitution. United
States v. Cruikshank , 92 U.S. 542, 558 (1875); see also U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation [against him.]”). To satisfy the prote ctions that the Sixth Amendment guarantees, “ facts are to be stated, not conclusions of law alone.”
Cruikshank , 92 U.S. at 558 (emphasis added). In other words, “[t]he accus ation must be legally sufficient, i.e., it must assert facts which in law amount to an offense and which, if proved, would establish prima facie the accused’s commission of that offense.” United States v. Silverman , 745 F.2d 1386, 1392 (11th Cir. 1984) (citation omitted).21 “The requirement that an indictme nt contain a few basic factual allegations accords defendants adequate notice of the charges against them and assures them that their prosecution will proceed on the basis of facts presented to the grand jury.” United
States v. Cecil , 608 F.2d 1294, 1297 (9th Cir. 1979). “The . . . generally appl icable rule is that the indictment may use the language of the statute, butthat language must be supplemented with enough detail to apprise the accused of the p articular offense with which he is charged.” Conlon , 628 F.2d at 155. Furthermore, and importantly for present purposes, “[i]t is an el ementary principle of criminal pleading[] that where the definition of an offen[s]e . . . includes generic terms, it is n ot sufficient that the indictment shall charge the offe n[s]e in the same generic terms a s in the definition; but it must state the species[]— it must descend to particulars.” United States v. Thomas , 444 F.2d 919, 921 (D.C. Cir. 1971) (first alteration in origina l) (quoting Cruikshank , 92 U.S. at 558). Thus, an indictment that mirrors the exact langua ge of a criminal statute may nevertheless be dismissed as constitutionally deficient if it is “not framed to apprise the defendant ‘with reasonable certainty[] of the natur e of the accusation against him[.]’” Nance , 533 F.2d at 701 (quoting Simmons , 96 U.S. at 362). The indictment at issue here clearly fails to satisfy these basic constitutionally mandated principles. To recap, each of the child pornography-rel ated counts that the government has filed against Hi llie (Counts One through Seven of the indictment) provides only a verbatim recitation of the language of the crim inal statute, devoid of any facts regarding the circumstances of Hillie’s behavior and ad orned only with the broadest possible references to time and place. Based on the i ndictment, one knows only that Hillie did something involving visual depictions of sex ually explicit conduct22 of a minor “in the District of Columbia” during periods of time that span two to three years, and that the government has chosen to charge this allegedcriminal activity (whatever it is) in a series of separate counts that appear to d iffer based solely on the overlapping time frames that relate to each count. The indictmen t is barren of factual averments regarding the what, where, or how of Hillie’s conduct, and thus, a nonclairvoyant reader cannot possibly ascertain the substance of th e government’s accusations from the face of the charging instrument. This lack of particularity or specificity regarding Hillie’s acti ons also makes it impossible to discern—and therefore to distinguish between—the conduct underlying each separate count. For examp le, Count One charges that, “[b] etween on or about July 1, 2008, and on or about August 30, 2010, in the District of Col umbia,” Hillie “did knowingly and intentionally employ, use, persuade, induce, enti re, and coerce J.A.A., an eleven-to-thirteen-year-old minor female, to engage in sexua lly explicit conduct for the purpose of producing any vis ual depiction of such conduct[. ]” (Indictment at 1.) Count Two repeats that same generic charge, relating it to a sl ightly larger timeframe. ( See id. at 2 (charging that Hillie “did knowingly and intentionally empl oy, use, persuade, induce, entire, and coerce J.A.A., . . . to engage insexually explicit conduct for the purpose of producing any visual depiction of such condu ct” and that he did so “[b]etween on or about July 1, 2008, and on or about August 30, 2011”).) Because nothing in these counts reveals the particular conduct that Hil lie allegedly engaged in with respect to J.A.A. during this overlapping multi-year perio d, one cannot tell whether the charges relate to distinguishable or separate child-p ornography-production23 offenses, and, indeed, it is not at all clear that these counts e ven reference different acts on the Defendant’s part. The D.C. Circuit has long held that an indictment that is drawn i n the generic words of a statute and that fails entirely to describe in any me aningful way the acts of the defendant that constitute the offenses charged is insufficient t o notify a defendant of the nature of the accusations against him. See, e.g. , Nance , 533 F.2d at 701 (holding that an indictment “following the generic wording of a statute” but lacking “any [factual] allegation whatsoever” with respect to a key element o f the offense is “fatally defective”); Thomas , 444 F.2d at 922 (noting that an indictment that “describes the offense only in impermissibly broad and categorical terms” drawnfrom the statute fails to “achieve the requisite degree of precision” demanded by the Co nstitution). In Hunter v. District of Columbia , 47 App. D.C. 406 (D.C. Cir. 1918), for example, the Circuit examined an indictment that alleged that the defendants had “congreg ate[d] and assemble[d] on Pennsylvania avenue, N.W., [and] did then and th ere crowd, obstruct, and incommode the free use of the sidewalk thereof on said avenue” in violation of the unlawful-assembly statute. Id. at 408. Beyond the general t erms of acts prohibited by the statute, there was no averment of fact “to inform defendants of the nature of the acts which [were] relied upon by the prosecution as constituting alle ged obstruction of the sidewalk, or that would enable de fendants to make an intelligent defense, much less to advise the court of the sufficiency of the charge in law to sup port a conviction.” Id. at 410. And the fact that the charging document “fail[ed] to set out the acts committed by the defendants which constituted the crowding and obstructing of the free use of the walk by them[,]” id . at 409, was a fatal flaw:24 [i]t is elementary that an information or indictment must set o ut the facts constituting the offense, with sufficient clearness to apprise the defendant of the charge he is expected to meet, and to inform the court of their sufficiency to sustain the conviction. . . . In other w ords, when the accused is led to the bar of justice, the information or in dictment must contain the elements of the offense with which he is charg ed, with sufficient clearness to fully advise him of the exact crime which he is alleged to have committed.
Id. at 409, 410 (emphasis added) (internal quotation marks and citatio n omitted). The
Hunter Court also helpfully observed that the defendants in that case could have engaged in a number of acts that fell outside the scope of the s tatute, and thus, by failing to specify the defendants’ particular conduct, the indic tment was “too vague, general, and uncertain to meet the requirements of the establis hed rules of criminal pleading,” which in turn rendered it “insufficient in law.” Id . at 410; see also Kinoy v. District of Columbia , 400 F.2d 761, 770–71 (D.C. Cir. 1968) (citing Hunter approvingly and incorporating its reasoning indirectly with respec t to vaguely worded conduct in indictments). 5 So it is here. Although Counts Ei ght through Sixteen contain spe cific references to the particular act of Hillie’s that allegedly constitutes se xual abuse, Counts One through Seven do not include any allegations of fact that would enable this Court to ascertain the precise conduct of Hillie’s that the government b elieves constitutes production and possession of child pornography. Thus, in accor dance with the great weight of authority, it appears that the first seven counts of the indictment do not pass constitutional muster.

5 At the time Hunter was decided, the federal appella te court we know today as the “U nited States Court of Appeals for the District of Columbia Circuit” was calle d the “Court of Appeals of the District of Columbia.” For a detailed description of the evolution of t he names and structures of the federal courts in the District of Columbia see Susan Low Bloch & Ruth B ader Ginsburg, Celebrating the 200th Anniversary of the Federal Courts of District of Columbia , 90 Geo. L.J. 549, 559–61 (2002).25 2. The Government’s Contention That The Indictment’s Recitation O f The Statutory Elements Of A Child Pornography Offense Provides Sufficient Notice To Hillie Is Unpersuasive Undaunted, the government argues that the charges against Hillie are “sufficient to place the defendant on notice of the offenses with which he is charged” because “[t]he language contains the ele ments of the crimes, the fact t hat the offenses occurred in the District of Columbia, the identity of the victims, the s pecific range of dates within which the offenses occurred and the ages of the victims [on those dates], the specific nature of each sexual a ct, and the statutes violated.” (Gov’t’s Resp. to Def.’s Mot. at 4.) The government is plainly mistaken to insist that the indictment at issue here alleges “the specific natur e of each sexual act” that form s the basis of each child pornography count; as this Court ha s already explained, Counts On e through Seven do

not , in fact, specify the nature of the sexual acts that relate to Hillie’s unspecified conduct involving video depictions, let alone the manner of his a ctual or attempted video recording of any such sexual act. And the government’s relatedsuggestion that it is sufficient for constitutional purposes for an indictment mere ly to recite the elements of the charged offenses is inconsistent with the well-establishe d principles of proper pleading as discussed above, and is thus entirely unpersuasive. To be sure, there are certain cr iminal offenses in which the stat utory text is worded so narrowly that a stateme nt of the elements provides the d efendant with sufficient notice of the acts that constitute the specific offe nse charged against him, and in such a case, “an indictment parroting the language of a feder al criminal statute is often sufficient[.]” United States v. Resendiz-Ponce , 549 U.S. 102, 109 (2007); see,
e.g. , id. at 108–10 (upholding indictment charging attempted reentry at aspecific place and time, without further description of the underlying act, be cause the time-and-place26 allegations were sufficient to narrow the subject conduct); United States v. Fitzpatrick , No. 95-42, 1995 WL 495994, at *2 (D.D.C. Aug. 7, 1995) (finding bribery statute sufficient to give notice if the i ndictment “particularizes the purpose of the bribery”). But there are also criminal offe nses that are broadly worded, an d thus “must be charged with greater specificity” in ord er to give the defendant suffic ient notice of the crime. Resendiz-Ponce , 549 U.S. at 109; see, e.g. , Thomas , 444 F.2d at 921–22 (noting that the language of a statute that references only a “genus” of conduct w ill not, without more, “allege with sufficient particularity the offense with which [adefendant] was charged”). Hillie’s indictment undoubtedly fa lls into the latter category. A s noted, the production-related counts charge Hillie with the actual (or attempted) employment, use, persuasion, inducement, enticement, and coercion of J.A.A. “to e ngage in sexually explicit conduct for the purpose of producing any visual depict ion of such conduct[.]” (Indictment at 1); accord 18 U.S.C. § 2251(a). The statute from which this language is lifted proscribes a wide array of conduct in the broadest, most ge neric terms, and while some of the key elements of this offense are narrowed by definit ion, see 18 U.S.C. § 2256 (defining “sexually explicit conduct” and “visual depicti on”), the actus reus that the statute criminalizes is not similarly restricted. The terms “e mploy,” “use,” “persuade,” “induce,” “entice,” and “coerce”—which are not statutorily defined—are “words of common usage that have plain and ordinary meanings,” United States v.
Richards , 649 F. App’x 65, 67 (2d Cir. 2016) (internal quotation marks and citation omitted), and courts have interpreted each term in the context o f child-pornographyproduction cases to connote different types of conduct depending o n the circumstances in which the alleged offense took place. As the First Circuit has explained,27 “Use” reaches a defendant’s active involvement in producing the depiction even if the interpers onal dynamics between the defend ant and the depicted minor are unknown. Inclusion of the term “use” in the statute permits the conviction of a defendant who was actively and directly involved in producing a sexually explicit depiction of a minor even in the absence of a complaining witness or even without be ing able to identify the specific minor. In contrast, the terms employ, persuade, induce, entice, and coerce reach various types of external pres sure that a defendant might apply on a minor to get him or her to engage insexually explicit conduct. These terms could reach a defendant’s conducteven if the pressure were remotely applied and the defendant had no inv olvement in any actual filming or photography, so long as that pressure were applied with the intent to cause a minor to be visually depicte d in a sexually explicit manner. Ortiz-Graulau v. United States , 756 F.3d 12, 19 (1st Cir. 2014). Similarly, with respect to the possession-of-child-pornography c harge, “[t]he word ‘possess’ [generally] means to own or to exert control over ”; however, it can still “take on several different, but related, meanings[,]” United States v. Tucker , 150 F. Supp. 2d 1263, 1266 (D. Utah 2001), aff’d , 305 F.3d 1193 (10th Cir. 2002), and may be “either actual or constructive[,]” United States v. Moreland , 665 F.3d 137, 149 (5th Cir. 2011). The possession count against Hillie (Count Three) further fails to describe the alleged “matter” or form of the visual depiction, and it also o mits the “by computer” language provided in the statute, assuming that Hillie’s allege d possession of the video recordings of J.A.A. in the nude is the basis for the indictmen t’s possession count. See 18 U.S.C. § 2252(a)(4)(B) (criminalizing the possession of “1 ormore books, magazines, periodicals, films, video tapes, or other matter” de picting child pornography “by any means including by comput er”). Thus, the indictment’s mere accusation that Hillie did, or attempted to do, something that, in the governme nt’s view, satisfies the statutory elements of possession of child pornography does not suffice to provide adequate notice of the particu lar conduct upon which the indictment’s charges are28 based. Cf. United States v. Staiti , 397 F. Supp. 264, 267 (D. Mass. 1975) (dismissing as insufficient a “blanket” indictment charging theft of “property ” in general terms, without any description of the property, where the statute “at least mention[ed] ‘goods, wares, merchandise, securities or money’” as qualifying); see also Nance , 533 F.2d at 701–02 (citing Staiti for the proposition that a statute’s generic language is not necessarily sufficient, and further noting that the government could have easily incorporated the object of one count by reference to the other counts). This all means that, when the government sought to charge Hillie w ith various violations of the broadly-worded federal statutes that criminalize p roduction and possession of child pornography, the government’s accusations ne eded to be accompanied by further details about Hillie’s actual c onduct—i.e., an explanation of
how he allegedly violated those statutes—in order to satisfy constituti onal and pleading standards. See Nance , 533 F.2d at 701 (“The United States Supreme Court has stated: ‘Where guilt depends so crucially upon . . . a specific identif ication of fact, our cases have uniformly held that an indi ctment must do more than simplyrepeat the language of the criminal statute.’” (alteration in original; quoting Russell , 369 U.S. at 764)). Otherwise, a court has little choice but to conclude that the in dictment lacks adequate notice of the charged violations, and it is especially evident he re that any attempt on Hillie’s part to mount a meaningful defense against the indictme nt’s multiple, undifferentiated charges is impermissibly frustrated. See, e.g. , Valentine v. Konteh , 395 F.3d 626, 633 (6th Cir. 2005) (“As the forty criminal counts we re not anchored to forty distinguishable criminal offenses, [the defendant] had little ability to defend himself.”);
see also Cecil , 608 F.2d at 1296–97 (finding that an indictment that “clearly lacked a29 statement of the facts and circumstances that would inform the accused of the specific offenses with which they were charged” had to be dismissed, eve n if it mirrored the statute and named the general place and open-ended dates upon which the offenses occurred). Accordingly, and in light of the government’s failure identify th e conduct of Hillie’s that allegedl y constitutes each of the child pornograp hy offenses that is charged in the indictment, this Court fi nds that Counts One through Sev en violate Hillie’s Sixth Amendment rights. B. The Indictment’s Silence Regarding The Facts That Underlie The Child Pornography Counts Also Raises Th e Specter Of A Fifth Amendment Violation 1. The Specific Child Pornography Offenses That The Grand Jury Authorized Cannot Be Ascertained On The Face Of This Indictment The Fifth Amendment’s mandate that “[n]o person shall be held t o answer for a capital, or otherwise infamous crime, unless on a presentment orindictment of a Grand Jury” is every American citizen’s safeguard against unfounded cr iminal charges. U.S. Const. amend. V; see United States v. Cotton , 535 U.S. 625, 634 (2002) (explaining that “the Fifth Amendment grand jury right serves a vital function i n providing for a body of citizens that acts as a check on prosecutorial power”). “In th is respect a defendant’s Fifth Amendment right to indictme nt by a grand jury intersects the Sixth Amendment right ‘to be informed of the nature and cause of the accusation ’ in criminal prosecutions.” Haldeman , 559 F.2d at 123 n.258; see Sunia , 643 F. Supp. 2d at 77–78 (noting that, “as nearly every circuit court of appeals has expr essly held,” the requirement that an indictment “ allege the essential facts constituting the offense ” in addition to stating “each elementof the offense” is borne out o f the protections30 guaranteed by the “Grand Jury Clause” (emphasis in original) (quotation marks and citation omitted)). “Little may b e left open to construction or interpretation of an indictment” after the grand jury returns its charge, because “[i ]f the offense is not plainly stated and is made so only by a process of interpretati on, there is no assurance that the Grand Jury would have charged such an offense.” Van Liew v. United States , 321 F.2d 664, 669 (5th Cir. 1963). And where there is ambiguit y, “the principal harm suffered by the [defendant] because of the lack of precision in the indictment results from his inability to discern the specific underlying offense, i f any, that the grand jury had in mind when it returned the indictment.” Thomas , 444 F.2d at 922. Here, the government claims that the grand jury concluded that there was probable cause to believe thatHillie had engaged in certain il legal acts involving child pornography based on the prosecutor’s oral representations at the time the case was presented. Specifically, the gove rnment maintains that the grandjury was orally instructed to consider facts related to Hillie’s alleged surrept itious recording of J.A.A. in various states of undress in her bathroom and bedroom, and that the grand jury was told to consider these charges in light of the individual videos that the prosecutor said corresponded to each specific count in the indictment. But grand j ury proceedings are not conducted publically. See Douglas Oil Co. of Cal. v. Petrol Stops Nw. , 441 U.S. 211, 218 n.9 (1979) (“Since the 17th century, grand jury procee dings have been closed to the public, and records of such proceedings have been kept f rom the public eye.”). Thus, even if the government instructed the grand jury in the r epresented fashion and provided the surreptitious video recordings as proof, in the ab sence of a written charge that includes this factual basis for the grand jury’s probable cause finding, one cannot31 know with the requisite degree of certainty that the criminal c harges that appear in the indictment are actually base d on the information so presented. See Gaither v. United
States , 413 F.2d 1061, 1070–71 (D.C. Cir. 1969) (noting that, unless e xplicitly charged on the face of the indictment, “the prosecutor can know [the grand jury’s] will only by guesswork from the evidence he has presented to the jurors” but“[h]e cannot know the actual tenor of their deliberations or decisions”); Jeffers v. United States , 392 F.2d 749, 752 (9th Cir. 1968) (finding that , unless explicitly stated in t he indictment, a court “cannot say” that “the theory now advanced by the government” as the basis for the charge is “the [same] theory adopted by . . . the grand jury,” or that a petit jury will ultimately convict on “the same theory” found by the grand jury). In other words, while “[i]t may well be that the grand jury inten ded the [surreptitious video recordings] to constitute the substance of the offense it sought to charge” in each of the purportedly corresponding child pornograp hy counts, “[i]t did not . . . say so, and neither this Court nor a trial jury may be permitted to guess at the grand jury’s unexpressed intent.” United States v. Pickett , 209 F. Supp. 2d 84, 88–89 (D.D.C. 2002); see id. (dismissing a count because the indictment’s recitation of the statutory elements, without further description of the defendant’s specific acts constituting the offense, did not provide a sufficient indicatio n of the grand jury’s intent); see also United States v. Pirro , 212 F.3d 86, 92 (2d Cir. 2000) (“The Indictment Clause of the Fifth Amendment requires that an indictment conta in some amount of factual particularity to ensur e that the prosecution will not f ill in elements of its case with facts other than those considered by the grand jury.” (quot ation marks and citation omitted)). And it is well established that “[t]o allow the prosecu tor, or the court, to32 make a subsequent guess as to what was in the minds of the gran d jury at the time they returned the indictment would dep rive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to sec ure[, f]or a defendant could then be convicted on the basis of facts not found by, andperhaps not even presented to, the grand jury which indicted him.” Russell , 369 U.S. at 770. Consequently, where, as here, the indictment omits the particul ar facts that purportedly led the grand jury to conclude that (if proven) the elements of the charged offense would be satisfied with respect to that this defendant, the char ging document is deficient with respect to the Fifth Amendment’s right to be trie d only upon charges found by a grand jury. 2. Counts One Through Seven Do Not Provide Hillie With Effective Protection Against The Risk Of Double Jeopardy The factual omissions in Counts One through Seven of Hillie’s indi ctment also implicate Hillie’s Fifth Amendment right to be free from the riskof double jeopardy. In this case, that risk is doubly concerning, because not only do the child pornography charges lack sufficient specificity to enable Hillie to plead convictions or acquittals as a bar to a future prosecution, the various substantively identical child pornograph y counts also create a risk that Hillie might be punished more than one t ime for the same offense in the present criminal prosecution, if the case proceeds to trial. See Ohio v. Johnson , 467 U.S. 493, 497–98 (1984) (“The Double Jeopardy Clause, of co urse, affords a defendant three basic protections: [It] protects against a seco nd prosecution for the same offense after acquittal. It protects against a second pros ecution for the same offense after conviction. And it protects against multiple puni shments for the same offense.” (internal quotation marks and citations omitted)). I t is clear beyond cavil that33 “Due [P]rocess requires that criminal charges be specific enough to protect defendants from this danger”; yet, the “multiple, identically worded count s” in the indictment at issue here contain “no specifici ty regarding the factual offens es [Hillie] allegedly committed[,]” and, thus, fail to satisfy that essential function. Valentine , 395 F.3d at
635.
In Valentine v. Konteh , the Sixth Circuit considered the sufficiency of a similar indictment, insofar as the defendant had been charged with “20 ‘ carbon-copy’ counts of child rape, each of which was identically worded so that there was no differentiation among the charges and 20 counts of felonious sexual penetration , each of which was also identically worded[,]” and “[t]he prosecution did not dist inguish the factual bases of these charges in the indictment[.]” Id. at 628. The Valentine court concluded that, although the “lack of time- and date-specific” allegations might n ot be fatal to each count in isolation, id. at 632, an indictment that charged t he defendant “with multiple, identical and undifferentiated counts violated the constitution al requirements imposed by due process[,]” id. at 636, because [i]f [the defendant] had been acquitted of these 40 charges, it i s unclear what limitations would have been imposed on his re-indictment. W ould double jeopardy preclude any prosecution concerning the abuse o f this child victim, the abuse of this victim during the stated time p eriod, the abuse of this victim at their residence, the stated sexual offen ses in the indictment, the offenses offered into evidence at trial, or som e group of forty specific offenses? We cannot be sure what double jeopardywould prohibit because we cannot be sure what factual incidents were presented and decided by this jury. id. at 635. Similarly, the court hypothe sized that, “[i]f [the defend ant] had been found not guilty, it is not clear to what extent he could ably assertthat his acquittal barred prosecution for other similar incidents.” Id

.34 The broadly-worded and factually sparse child pornography count s in Hillie’s indictment—none of which are tie d to any particular act or vide o on the face of the charging document—suffer from this same defect, because the all egations are insufficient to establish the boundaries of the charged conduct, and thus it is not at all clear that a future prosecution for conduct arising out of these sam e charges would be barred. See Pickett , 209 F. Supp. 2d at 89 (finding, with respect to an indictment without specific factual averment s, that no “other court consid ering the identical charge in a future indictment, [could] say, upon a subsequent prosecut ion of [defendant], that the jury’s verdict in this case operated as a bar to that prose cution”). Furthermore, based on the indictment as drafted, it is possible that Hillie c ould be punished more than once for the exact same offense in the context of this veryprosecution. For example, because the indictment itself does not distinguish betwe en the various videos upon which the government purportedly has based the charges, th e jury might convict Hillie of producing a pornographic video of J.A.A. (say, in Coun t Two) and also convict him of attempting to produce that very same video (in Count F ive). Likewise, the vagueness with respect to each count could result in a unanim ous consensus among the jurors regarding Hillie’s guilt with respect to a particular c ount, but a lack of unanimity regarding the offensive conduct that is the basis for ea ch juror’s vote. See
Valentine , 395 F.3d at 636 (noting that vague charged offenses can resultin a defendant being “convicted . . . without jury unanimity as to the underly ing factual offenses” in violation of his due process rights). The government is wrong to suggest that, because the Federal Rul es of Criminal Procedure do not require specificity with respect to the “time, place, circumstances,35 [and] causes” of an alleged offenses, an indictment that contai ns multiple charges of similar offenses need not differentiate between them. (Gov’t’s Re sp. to Def.’s Mot. at 5.) It is true that the Federal Rules “were designed to eliminat e technicalities in criminal pleading” and to dispense with exacting particularity inindictments, United
States v. Debrow , 346 U.S. 374, 376 (1953), but with respect to the constitutional concerns at issue here, that goal is largely beside the point. That is, while generalized pleading might well be permissible when the charged conduct is otherwise clear on the indictment’s face and/or where there is only one act or count at issue, “if prosecutors seek multiple charges against a defendant, they must link those multiple charges to multiple identifiable offenses[,]” Valentine , 395 F.3d at 636 (emphasis added), and it is well established that “these basic principles of fundamental fa irness [with respect to criminal charges] retain their full vitality under modern conce pts of pleading, and specifically under Rule 7(c) of the Federal Rules of Criminal P rocedure,” Nance , 533 F.2d at 701–02; see also Kinoy , 400 F.2d at 770–71 (noting that “[t]he right to be clearly apprised of a criminal charge is constitutional in scop e and cannot be avoided in this instance by the more simpli fied rules of modern pleading”)

. Notably, the requirement that the government provide sufficient f acts to establish the nature of the different offenses and to differentiate one co unt from another does not, by any means, demand high levels of exactitude: “[r]equiring som e minimal differentiation between criminal counts is quite different fromrequiring exact time and place specifications.” Valentine , 395 F.3d at 637 (internal quotation marks omitted). The government has not pointed t o one case the contradicts the established principle that adequate “differentiation will often require reference to date ranges or time ranges36 or certain locations or certain actions[,]” id ., and this Court is not aware of any. As relevant here, adequate notice of the particular conduct that underlies each of the various counts with which Hillie has been charged might require a specific reference to the actus reus (e.g., “surreptitious videotapin g”) and the approximate location where this conduct took place inside the home (e.g., bathroom or bedro om), along with the numeric file name or other identifier that is particular to the video file that is the basis for the count. This information is apparently readily available, see Conlon , 628 F.2d at 156 (noting that “[i]t is clear that the government could have b een more specific in the indictment” if it had wanted to), as evinced by the government’ s willingness to clarify and differentiate the basis for each individual count against H illie in its submissions and in the bill of particulars ( see Gov’t’s Bill of Particulars at 1; see also Gov’t’s Resp. to Def.’s Mot. for a Bill of P articulars, ECF No. 27, at 5–8). M oreover, the fact that the government provided some specific ity in the sexual abuse counts o f the indictment ( see,
e.g. , Indictment at 6 (specifying, with respect to Count Eight, that the sexual act allegedly committed upon J.A.A. wa s Hillie’s “penetration of J. A.A.’s vulva by [his] finger”); id. at 8 (indicating, with respect to C ount Ten, that the sexual act alleged was Hillie’s hand coming into contact with “J.A.A.’s breast”)), indi cates that it knows full well what sorts of details to provide in order to clarify and d istinguish the charges in each count consistent with Hillie’s constitutional rights. The bottom line is this: if a criminal indictment is going to b e drafted to provide adequate notice, to preserve the role of the grand jury, and to avoid the risk of double jeopardy—as the Constitution demands—then “the defendant, the j udge, and the jury must be able to tell one count from another.” Valentine , 395 F.3d at 637. Counts One37 through Seven of Hillie’s indictment fall woefully short of thi s standard, and as a result, this Court has no choice but to conclude that, as currently dra fted, these charges violate Hillie’s constitutional rights. C. Under The Circumstances Presented Here, A Bill Of Particulars Does Not Suffice; Rather, The Child Pornogr aphy Counts Must Be Dismissed The government argues that “the proper remedy for a need for gre ater specificity in the indictment” is the submi ssion of a bill of particulars, n ot dismissal of the defective charges (Gov’t’s Resp. to Def.’s Mot. at 5); and, to thi s end, the government has provided Hillie with an itemized statement of the factual ba sis for each of the charged counts ( see Gov’t’s Bill of Particulars at 1; Gov’t’s Resp. to Def.’s Mot. fora Bill of Particulars at 5–8). Having provided this statement of c larification to the defendant and the Court, the government maintains that Hillie’s motion to dismiss the indictment is now moot, because these subsequent clarifications have “cured” any notice problem and a court in the future will look to the entire record to determine the facts when evaluating whether Hillie will be put in jeopardy twice for the same conduct. ( See Gov’t’s Resp. to Def.’s Mot. at 5 (“[T]he defendant has request ed and received a bill of particulars which should render [the facial insufficien cy] argument moot”); Gov’t’s Suppl. Br. at 5 (“[T]he defendant is fully protected frombeing put in jeopardy for the same offense, since the entire record is relied upon for purposes of a double jeopardy analysis.” (emphasis in original)); see also id. at 4 (“[A]ny perceived lack of specificity with the charging language has been remedied by the government’s response to the defendant’s request for a Bill of Particulars.”).) Despite the apparent appeal of the government’s logical reasoni ng, courts have long held that, while a valid indictment can be clarified thro ugh a bill of particulars, an38 invalid indictment cannot be saved by one. See Conlon , 628 F.2d at 156 (“[I]t is settled that a bill of particulars and a fortiori oral argument cannot c ure a defective indictment.”); see also Nance , 533 F.2d at 701–02 (same); Thomas , 444 F.2d at 922–23 (same). As explained above, the i ndictment defect at issue here goes beyond mere confusion about the evidentiary basis for the charges brought, and instead, relates to core constitutional concerns about the grand jury’s actual findi ngs. A subsequent statement by the government in the form of a bill of particular s does not guarantee that the formal charges brought again st the defendant adhere to the f acts that the grand jury considered. See Nance , 533 F.2d at 701 (finding that a bill of particulars did not remedy an indictment that lacked “any allegation whatsoever” on a key element of the offense, because merely reciting the words of the statute gave the government “a free hand to insert the vital part of the indictment without referen ce to the grand jury”). And “to permit the omission [of a material fact] to be cured by a bill of particulars would be to allow the grand jur y to indict with one crime in mi nd and to allow the U.S. Attorney to prosecute by producing evidence of a different crim e”; which would, in essence, “usurp the function o f the grand jury . . . and, in many cases, would violate due process by failing to give the accused fair notice of the charg e he must meet.” Thomas , 444 F.2d at 922–23. Therefore, even if the government’s subseque nt statement might reduce the future risk of double jeopardy, see, e.g. , Sanford, Ltd. , 859 F. Supp. 2d at 124, it cannot “cure” an indictment that fails to provide Defendant with present notice of the charges against him or that potentially thwarts the role o f the grand jury in bringing those charges in the first place, see Russell , 369 U.S. at 770 (finding that a bill of particulars cannot cure an imprecise and fatally defective i ndictment); see also39 Gaither , 413 F.2d at 1067 (“The bill of particulars fully serves the f unctions of apprising the accused of the ch arges and protecting him againstfuture jeopardy, but it does not preserve his right to be tried on a charge found by a grand jury.”). For these reasons, this Court rejects the government’s contentions regard ing the efficacy of its Bill of Particulars, and agrees with Hillie that Counts One throu gh Seven of the indictment must be dismissed without prejudice. See, e.g. , Pickett , 209 F. Supp. 2d at 88–89 (dismissing count for factual insufficiency); United States v. Lattimore , 127 F. Supp. 405, 410–13 (D.D.C) (dismissing indictment as vague for f ailing to describe the charge), aff’d , 232 F.2d 334 (D.C. Cir. 1955). The Court acknowledges that, despite its conclusions regarding the federal counts, Counts Eight through Seventeen—the child sex abuse char ges brought under D.C. law—remain pending, and there appears to be no federal inte rest remaining in this case. Thus, the Court would ordinarily immediately cede jurisdicti on over Hillie’s continued prosecution. See United States v. Kember , 685 F.2d 451, 454 (D.C. Cir. 1982) (noting that “the federal court must dismiss a criminal p rosecution when federal charges have faded from the case prior to trial, leaving only D istrict of Columbia offenses for adjudication, unless the court determines, in its discretion, that retention of the case is warranted by remaining matters of legitimate federa l concern”). But under the circumstances presented here , this Court will hold in abeyan ce the order dismissing the federal counts for 14 days, which should give the government adequate time to determine whether a superseding federal indictment that contain s constitutionally sufficient child pornography charges will be sought. See United States v. Slough , 679 F. Supp. 2d 55, 58 (D.D.C. 2010) (explaining that, “[i]n most in stances, the dismissal of40 an indictment does not bar the government from seeking re-indic tment if, in so doing, it can cure the defect that require d the dismissal of the original indictment”); see also
United States v. Poindexter , 719 F. Supp. 6, 8 (D.D.C. 1989) (“The government obviously has the authority to re turn to the grand jury to seeka superseding indictment narrower in scope than the presen t indictment. The Court has no involvement in that process, and unless and until such a superseding indictment is before it, there is nothing for it to decide.”). If and when such a new indictment is filed , Hillie may seek leave to refile any of the other pendin g defense motions that challenge various aspects of this prosecution, none of which this Court has considered on the meri ts and each of which is effectively mooted by the Court’s dismissal decision.

IV. CONCLUSION The constitutional burden of providing adequate notice and preve nting the risk of double jeopardy with respect to bringing criminal charges is notan especially heavy load, and yet the government has somehow failed to carry it in the instant case. Counts One through Seven of the pending indictment are manifestly defi cient, because they do not contain any facts regarding the particular conduct of Hillie ’s that, according to the government, constitutes the criminal acts that the law prohibits . Consequently, the Defendant’s Motion to Dismiss the Indictment will be GRANTED IN PART and the federal child pornography charges will be DISMISSED WITHOUT PREJUDICE as factually insufficient. The local offenses (Counts Eight throu gh Seventeen) remain pending, and the government might yet opt to secure a supersedingindictment that cures the deficiencies in the f ederal counts. Thus, this Court’s forthcoming Order will be HELD IN ABEYANCE for a period of 14 days to permit the government to decide41 whether to follow this course. If the government decides not to file superseding charges, the lack of any lingering federal concerns would likely le ad this Court to conclude that the entire criminal action must be dismissed (to be further pursued, if at all, in state court).

DATE: January 5, 2017 

## Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge