United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 8, 2014 Decided October 21, 2014

No. 13-3066

UNITED STATES OF AMERICA,

APPELLEE

v.

PAUL DAVID HITE,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cr-00065-1)

Lawrence S. Robbins argued the cause for appellant. 

With him on the briefs was Barry J. Pollack.

A.J. Kramer, Federal Public Defender, and Jonathan 

Jeffress and Rosanna M. Toarmina, Assistant Federal Public 

Defenders, were on the brief as appointed amicus curiae The 

Federal Public Defender for the District of Columbia in 

support of the appellant.

Patricia A. Heffernan, Assistant U.S. Attorney, argued 

the cause for appellee. With her on the brief were Ronald C. 

Machen, Jr., U.S. Attorney, and Elizabeth Trosman, Elizabeth 

H. Danello, and David B. Kent, Assistant U.S. Attorneys.
2

Before: ROGERS, PILLARD and WILKINS, Circuit Judges.

Opinion for the Court filed by Circuit Judge Wilkins. 

WILKINS, Circuit Judge: Following a jury trial, Paul 

David Hite was convicted under 18 U.S.C. § 2422(b) of 

attempting to persuade a minor to engage in unlawful sexual 

activity. Hite’s conviction was based on Internet and 

telephone conversations that he had with an undercover 

detective who claimed to be an adult male with access to a 

twelve-year-old girl and a three-year-old boy. The District 

Court sentenced Hite to twenty-two years of imprisonment 

and a fine of $500,000. Hite now appeals his conviction.

The primary issue Hite raises on appeal is one of first 

impression for this Court: whether 18 U.S.C. § 2422(b) 

requires direct communications with a minor. We hold 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.

Nevertheless, because the District Court erred in instructing 

the jury and excluding expert testimony crucial to the defense, 

we vacate Hite’s conviction and remand for a new trial. 

I.

Hite is a fifty-eight-year-old anesthesiologist from 

Richmond, Virginia. On February 1, 2012, Hite, using screen 

name “VetteguyZ06,” entered a private chat room on gay.com 

and initiated a conversation with “DCped,” a single man in 

the District of Columbia area who described himself as a 

“[n]o limit perv.” S.A. 98-99. “DCped” told Hite that he had 

an ongoing sexual relationship with a twelve-year-old girl 

(who he claimed was the daughter of his girlfriend) and had 
3

limited sexual contact with his three-year-old nephew. J.A.

517. Hite responded, “mmmm----HOT,” and told “DCped” 

that he had previously been sexually active with the elevenyear-old son of his friend. Id. In reality, “DCped”—or J.P., 

as he later told Hite—was an online persona created by 

Metropolitan Police Department Detective Timothy Palchak. 

Both minors with whom J.P. claimed to be sexually involved 

were fictitious. 

J.P. and Hite exchanged Yahoo Instant Messenger screen 

names and continued their conversation later that evening, 

during which Hite probed J.P. regarding his sexual encounters

with the twelve-year-old girl, “Christy,” and his nephew. J.A.

518-21. When J.P. brought up the possibility that Hite could

“hook up” with him and Christy, Hite responded, “would love 

to do a bi 3 way with you and a yng girl[.]” J.A. 521. Hite 

also told J.P. that he could show Christy a picture of his 

gay.com profile picture and said that he “want[s] her to be 

into it.” J.A. 521-22. 

Over the course of the next two weeks, Hite and J.P. 

communicated using Yahoo Instant Messenger and discussed 

in graphic detail their plans to engage in sexual activities with 

the two minors. Hite told J.P. that he hoped Christy would 

like his profile photo, J.A. 526, and that he was “willing to 

take it slowly at her pace,” J.A. 527. With respect to J.P.’s 

three-year-old nephew, Hite suggested that “a more gradual 

way to proceed” would be appropriate, such as taking a 

shower together or wrestling in their underwear. J.A. 538. In 

addition, Hite proposed using “jelly or honey” to “keep him 

enticed,” J.A. 556, and suggested using the peanut-butter-andjelly mix that he had received as a gag gift with the boy, 

noting that it “would be perfect to stimulate oral exploration.” 

S.A. 201-02. Hite also asked J.P. if he ever gave the minors 

“any alcohol to relax them.” When J.P. responded, “Christy, 
4

yes; Benadryl to nephew,” Hite stated, “[n]ice on both 

counts,” and later reminded J.P. that they would need to give 

the boy Benadryl, in part to “distort any recollection he could 

have.” S.A. 180; J.A. 551, 557. On one occasion, J.P. asked

Hite, “are you sure your [sic] not just into the fantasy of 

this??” J.A. 548. 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. He shared the 

details of his prior sexual experience with an eleven-year-old 

boy and told J.P. that there was “NOTHING hotter” than 

“explor[ing] the real thing with a like-minded bud[.]” J.A. 

550-52. 

After several days of online chatting, J.P. told Hite that

he would be babysitting his nephew on February 18, 2012. 

The two men agreed that they should meet on February 17 to 

“validate,” i.e., confirm that neither of them is an undercover 

cop, before engaging in sexual activities with the three-yearold boy on the next day. S.A. 191-93. A few days before 

their scheduled meeting, however, Hite expressed 

nervousness and emphasized that they would be “[t]wo adults 

meeting Friday night to explore and discuss common 

interests,” “[n]othing else expected or implied.” S.A. 217. 

When the two men spoke on the phone later that day, Hite 

reiterated, “[a]ny of the conversation that we have I’m sure on 

my end, and on your end also, has been totally fantasy, and 

it’s just the two of us meeting Friday night to explore, and 

you know, discuss various things, correct?” J.A. 585. Hite 

also asked for, and received, directions to J.P.’s apartment in 

the District of Columbia. J.A. 593-94. 

On February 17, 2012, instead of meeting J.P. in person 

as planned, Hite spoke to J.P. on the phone and revealed that 

he had “spent two sleepless nights . . . trying to re[lieve] [his]

paranoia.” J.A. 598. To ease Hite’s nervousness, J.P. offered 
5

to do a “webcam session” performing fellatio on his nephew 

on the following morning, so that Hite could see that he was 

“legit.” J.A. 599. Relieved, Hite responded, “Okay, 

fabulous,” and the two men discussed the weekend weather 

forecast; Hite told J.P. that he could drive a “4-wheel drive 

vehicle,” in case of snow. J.A. 599-602. 

The webcam session never took place. Hite was arrested 

later that evening at a gas station near his home in Richmond, 

Virginia. S.A. 322-24, 328-29.1

 During a search warrant 

executed at Hite’s home, officers seized a laptop and 

recovered 400 “thumbnail” images of child pornography that 

had been opened from a separate electronic storage device, as 

well as an Internet search history indicating that Hite had 

searched “mapquest” for the Verizon Center, a landmark near 

J.P.’s fictitious residence. S.A. 345-52, 364-66. The officers 

also found a jar of peanut-butter-and-jelly mix in the laundry 

room. S.A. 370-72.2

Hite was charged with two counts of attempted coercion 

and enticement of a minor under 18 U.S.C. § 2422(b). Hite’s 

primary defense at trial was that he was engaged in fantasy 

and role-play and had no intention of engaging in sexual 

activities with a real child. After a three-day trial, the jury 

convicted Hite on both counts. 

 1 Hite’s friend testified that Hite had told him during dinner on 

February 17, 2012, that he was considering traveling to 

Washington, D.C., the next day to meet a person he had met online. 

The friend testified that Hite said that he would call in the morning 

to let him know whether he would be traveling to D.C. S.A. 316-

20.

2 Hite’s mother testified at trial that the jar of peanut-butter-andjelly mix was in Hite’s utility room in January 2012. S.A. 375-78.
6

On appeal, Hite contends that he should not have been 

convicted under § 2422(b) because he never communicated 

directly with a minor and never attempted to persuade a minor 

through the use of a means of interstate commerce. 

Alternatively, Hite argues that he is entitled to a new trial 

because of a series of errors made by the District Court. In 

particular, he claims that the District Court (1) provided 

erroneous jury instructions; (2) improperly excluded the 

proposed testimony of his expert; and (3) prevented his 

counsel from impeaching Detective Palchak during crossexamination. Lastly, Hite requests reassignment to a different 

District Court judge on remand. We address each argument 

in turn. 

II.

Hite submits that his conduct did not violate 18 U.S.C. 

§ 2422(b) because the statute requires direct communications 

with a minor and the use of a means of interstate commerce 

for the act of persuasion itself. Hite contends that each of the 

actus reus verbs in § 2422(b) describes an action directly 

performed by one person on another. He further claims that 

the statute’s legislative history is devoid of any mention of 

adult intermediaries, and that any statutory ambiguity must be 

resolved in his favor under the rule of lenity. 

Although it is a question of first impression for this 

Court, this is not the first time that a defendant has argued that 

§ 2422(b) only applies to direct communications with a 

minor. Seven of our sister circuits have considered the issue 

and rejected a categorical requirement that the defendant 

communicate directly with a minor, rather than through an 

adult intermediary. United States v. McMillan, 744 F.3d 1033 

(7th Cir. 2014), cert. denied --- S. Ct. ---- (Oct. 6, 2014); 

United States v. Caudill, 709 F.3d 444 (5th Cir. 2013), cert. 
7

denied, 133 S. Ct. 2871 (2013); United States v. Berk, 652 

F.3d 132 (1st Cir. 2011); United States v. Douglas, 626 F.3d 

161 (2d Cir. 2010) (per curiam); United States v. Nestor, 574 

F.3d 159 (3d Cir. 2009); United States v. Spurlock, 495 F.3d 

1011 (8th Cir. 2007); United States v. Murrell, 368 F.3d 1283 

(11th Cir. 2004). Today, we join our sister circuits and hold

that communications with an adult intermediary to persuade, 

induce, entice, or coerce a minor are punishable under 

§ 2422(b), so long as the defendant’s interaction with the 

intermediary is aimed at transforming or overcoming the 

minor’s will in favor of engaging in illegal sexual activity. 

We review questions of statutory interpretation de novo. 

United States v. Wishnefsky, 7 F.3d 254, 256 (D.C. Cir. 1993). 

As always, we begin with the text of the statute. United 

States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989); 

United States v. Barnes, 295 F.3d 1354, 1359 (D.C. Cir. 

2002). “It is elementary that the meaning of a statute must, in 

the first instance, be sought in the language in which the act is 

framed, and if that is plain, and if the law is within the 

constitutional authority of the lawmaking body which passed 

it, the sole function of the courts is to enforce it according to 

its terms.” Caminetti v. United States, 242 U.S. 470, 485 

(1917). The search for the meaning of the statute must also 

include an examination of the statute’s context and history. 

See Bailey v. United States, 516 U.S. 137, 144-45 (1995).

 With these principles in mind, we turn first to the 

statutory text, 18 U.S.C. § 2422(b), which provides that: 

Whoever, using the mail or any facility 

or means of interstate or foreign 

commerce, or within the special 

maritime and territorial jurisdiction of 

the United States knowingly persuades, 
8

induces, entices, or coerces any 

individual who has not attained the age 

of 18 years, to engage in prostitution or 

any sexual activity for which any 

person can be charged with a criminal 

offense, or attempts to do so, shall be 

fined under this title and imprisoned 

not less than 10 years or for life.

 

The ordinary meanings of the verbs persuade, induce, 

entice, and coerce demonstrate that § 2422(b) is intended to 

prohibit acts that seek to transform or overcome the will of a 

minor. For instance, “persuade” is commonly defined as “[t]o 

induce or win over (a person) to an act or course of action; to 

draw the will of (another) to something, by inclining his 

judgement [sic] or desire to it; to prevail upon, to urge 

successfully, to do something,” OXFORD ENGLISH 

DICTIONARY (2d ed. 1989), or “to win over by an appeal to 

one’s reason and feelings, as into doing or believing 

something,” BLACK’S LAW DICTIONARY (6th ed. 1990). See 

also WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY,

UNABRIDGED (1981) (defining “persuade” as “to induce by 

argument, entreaty, or expostulation into some mental 

position . . . win over by an appeal to one’s reason and 

feelings (as into doing or believing something)”). Likewise, 

“induce” is ordinarily defined as “[t]o lead (a person), by 

persuasion or some influence or motive that acts upon the 

will,” “to lead on, move, influence, prevail upon (any one) to 

do something.” OXFORD ENGLISH DICTIONARY (2d ed. 1989)

(emphasis in original). See also BLACK’S LAW DICTIONARY

(6th ed. 1990) (“induce” defined as “[t]o bring on or about, to 

affect, cause to influence to an act or course of conduct, lead 

by persuasion or reasoning, incite by motives, prevail on”); 

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY,
9

UNABRIDGED (1981) (“induce” defined as “to move and lead 

(as by persuasion or influence),” “prevail upon,” and “to bring 

on or bring about”). “Entice” and “coerce” similarly connote 

efforts to affect the mind or will of another. See, e.g.,

BLACK’S LAW DICTIONARY (6th ed. 1990) (“entice” means “to 

lure, induce, tempt, incite, or persuade a person to do a thing”; 

“coerce” means “[c]ompelled to compliance; constrained to 

obedience, or submission in a vigorous or forcible manner”). 

Congress is presumed to use words in the common, ordinary 

meaning absent contrary indication, and we find none here. 

See, e.g., FDIC v. Meyer, 510 U.S. 471, 476 (1994); Engine 

Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 

252 (2004). 

Hite argues that in common parlance these verbs usually 

describe direct interactions. Appellant Br. 11-13. But even if 

Hite is correct about what usage is most common, we cannot 

ignore that customary usage of these verbs also includes the 

use of intermediaries to transform or overcome another’s will. 

See OXFORD ENGLISH DICTIONARY (2d ed. 1989) (“I wish 

you’d just try to persuade Lou off a silly idea she’s just got 

hold of.”); WEBSTER’S THIRD NEW INTERNATIONAL 

DICTIONARY, UNABRIDGED (1981) (“Burt, aided by his father 

and friends, induced Congress to aid his state in building such 

a canal.”). As several of our sister circuits have noted, the 

statutory terms naturally incorporate the use of intermediaries. 

See, e.g., McMillan, 744 F.3d at 1036 (“One particularly 

effective way to persuade or entice a person to do something 

is to enlist the help of a trusted relative, friend, or associate.”);

Nestor, 574 F.3d at 162 n.4 (“Businesses and individuals 

regularly seek to persuade others through advertising 

intermediaries and negotiating agents.”).

In addition to the fact that conventional usage of 

persuade, induce, entice, and coerce encompasses the use of 
10

intermediaries, Hite’s position is undermined by Congress’s 

inclusion of the phrase “or attempts to do so” in the statutory 

text. The inclusion of the verb “attempt” in § 2422(b) is quite 

significant, because “[t]here is no general federal ‘attempt’ 

statute. A defendant therefore can only be found guilty of an 

attempt to commit a federal offense if the statute defining the 

offense also expressly proscribes an attempt.” United States 

v. Hopkins, 703 F.2d 1102, 1104 (9th Cir. 1983) (citing

United States v. Joe, 452 F.2d 653, 654 (10th Cir. 1971); see 

also Liu v. Amerco, 677 F.3d 489, 494 (1st Cir. 2012); United 

States v. Douglas, 525 F.3d 225, 251 (2d Cir. 2008); United 

States v. Duka, 671 F.3d 329, 353-55 (3d Cir. 2011). 

Consequently, by inserting this verb in § 2422(b), Congress 

deliberately intended that situations in which a defendant used 

a means of interstate commerce to attempt to persuade, 

induce, entice, or coerce a minor into performing illegal 

sexual activities would be prosecuted to the same extent as the 

completed offense. 

Although § 2422(b) does not define “attempt,” we 

have no reason to doubt that Congress was aware of how the 

law of attempt would apply to the statute. At the time of the 

enactment of § 2422(b) in 1996, the general meaning of 

“attempt” in federal criminal law was an action constituting a 

“substantial step” towards commission of a crime and 

performed with the requisite criminal intent. See, e.g., 

Braxton v. United States, 500 U.S. 344, 349 (1991) (“For 

Braxton to be guilty of an attempted killing under 18 U.S.C. 

§ 1114, he must have taken a substantial step towards that 

crime, and must also have had the requisite mens rea.”). 

Furthermore, “when causing a particular result is an element 

of the crime,” the defendant was guilty of attempt when he 

intended to cause such a result and “d[id] or omit[ted] to do 

anything with the purpose of causing or with the belief that it 

[would] cause such result without further conduct on his 
11

part.” BLACK’S LAW DICTIONARY (6th ed. 1990).

Accordingly, courts commonly held that a defendant 

completed a “substantial step” sufficient to prove attempt 

when he utilized another person to perform an element of the 

crime with the clear intent to cause the harm proscribed by the 

statute. See, e.g., United States v. Rovetuso, 768 F.2d 809, 

821-23 (7th Cir. 1985) (attempted witness tampering proven 

where defendant solicited undercover agent to kill witness); 

United States v. Brown, 604 F.2d 347, 350 (5th Cir. 1979) 

(attempted destruction of a building using fire or explosive 

proven where defendant reached agreement with undercover 

officer to provide bomb materials and sent other individuals 

to reconnoiter grocery store intended for destruction). 

In the context of § 2422(b), communications with an 

intermediary aimed at persuading, inducing, enticing, or 

coercing a minor to engage in sexual activity fit within this 

common understanding of “attempt.” See United States v. 

Lee, 603 F.3d 904, 915 (11th Cir. 2010) (substantial step 

where defendant did not communicate directly with minors 

but rather “requested assistance from the one woman who had 

‘influence and control over [the] daughters,’” their mother); 

Spurlock, 495 F.3d at 1014 (“Spurlock intended to entice 

minor girls to have sex with him, and . . . his conversations 

with their purported mother were a substantial step toward 

that end.”). As the Seventh Circuit noted in McMillan, “[t]he 

essence of this crime is the defendant’s effect (or attempted 

effect) on the child’s mind. Nothing in the statute requires the 

minor to be the direct recipient of the defendant’s message, 

whether it comes in conversation, by telephone, by text, by 

email, or in some other way.” 744 F.3d at 1036 (emphasis 

added).

The context and history of the statute, see Bailey, 516 

U.S. at 146-47, supports this interpretation of § 2422(b). The 
12

purpose of § 2422(b) was to protect minors from sexual 

exploitation by online predators. The House Conference 

Report of the Telecommunications Act of 1996, which 

included § 2422(b), notes that “the Senate Judiciary 

Committee held a hearing on online indecency, obscenity, and 

child endangerment . . . this hearing supports the need for 

Congress to take effective action to protect children and 

families from online harm.” H.R. Rep. No. 104-458, at 193

(1996) (Conf. Rep.). The Committee Report on the Child 

Protection and Sexual Predator Punishment Act of 1998, 

which increased the penalty for violation of § 2422(b), 

emphasizes that the bill was “a comprehensive response to the 

horrifying menace of sex crimes against children, particularly 

assaults facilitated by computer . . . [that seeks to] provid[e] 

law enforcement with the tools it needs to investigate and 

bring to justice those individuals who prey on our nation’s 

children.” H.R. Rep. No. 105-557, at 10 (1998). As a sister 

circuit concluded, “[t]he primary evil that Congress meant to 

avert by enacting § 2422(b) was the psychological 

sexualization of children.” United States v. Fugit, 703 F.3d 

248, 255 (4th Cir. 2012), cert. denied, 134 S. Ct. 999 (2014). 

Prohibiting the use of intermediaries to induce minors (or to 

attempt to induce them) is consistent with this goal.3

 3 Hite also contends that Congress could have, but did not, include 

the phrase “directly or indirectly” in the text, as it has done with 

numerous other statutes, and that the legislative decision to omit 

this language indicates that only direct contact with minors falls 

within the statute’s prohibition. Appellant Br. 12-13. This 

argument fails for two reasons. First, the use of the phrase “directly 

or indirectly” potentially sweeps in conduct far beyond that present 

in this case, cf. Jarvis v. U.S. Civil Serv. Comm’n, 382 F.2d 339, 

344 (6th Cir. 1967) (determining that Hatch Act prohibition on 

indirectly coercing state employees to make political donations 

“forbids even advice”), and Hite provides no support for the 

argument that Congress generally uses this phrase when it wishes to 
13

In conjunction, this context and history, combined with 

the dictionary definitions, common usages, and accepted legal 

interpretations, demonstrates that § 2422(b) criminalizes 

situations in which a defendant transforms or overcomes the 

will of a minor by way of an adult intermediary.4 To the 

extent that there is any ambiguity in the statute’s text, that 

ambiguity does not approach the type of “grievous ambiguity 

or uncertainty” that permits the application of the rule of 

lenity. See Dean v. United States, 556 U.S. 568, 577 (2009) 

(quoting Muscarello v. United States, 524 U.S. 125, 139 

(1998)); see also Abramski v. United States, 134 S. Ct. 2259, 

2272 n.10 (2014) (“The dissent would apply the rule of lenity 

here because the statute’s text, taken alone, permits a 

 

include the use of an intermediary within the scope of the offense. 

Second, as discussed above, Hite was charged with using the 

Internet to attempt to entice a minor, and the legal definition of 

attempt at the time of the enactment of § 2422(b) contemplated the 

use of an intermediary. 

4 Hite urges us to follow the dissent in United States v. Laureys, 

653 F.3d 27 (D.C. Cir. 2011). In Laureys, the Court did not address 

the question of statutory interpretation. However, the dissent

examined the issue and concluded that “§ 2422(b) requires an 

attempt to bend the child-victim’s will.” Id. at 40 (Brown, J., 

dissenting). We disagree with Hite’s construal of the dissent as 

opposing the statute’s application to all indirect communications. 

Properly read, the dissent in Laureys suggested that convictions 

under § 2422(b) may be permissible based on communications with 

intermediaries, if such communications are “a vehicle through 

which the defendant attempted to obtain the child’s assent, or a 

substantial step toward persuasive communication with the child 

herself.” Id. (footnotes omitted); see also id. at 39 n.2 (noting that 

“there is no evidence Laureys attempted to entice the fictitious girl 

through his online communication with [the adult intermediary]”). 
14

narrower construction, but we have repeatedly emphasized 

that this is not the appropriate test.”). 

By the same token, we reject the Government’s argument 

that § 2422(b) does not require the defendant to attempt to 

transform or overcome the minor’s will. Appellee Br. at 31-

33; Oral Arg. Tr. at 21-22. While the statute does not 

preclude the use of an intermediary, it clearly establishes the 

“individual who has not attained the age of 18 years,” 

§ 2422(b), as the intended object of the actus reus verbs. See

United States v. Engle, 676 F.3d 405, 419 (4th Cir. 2012)

(noting that § 2422(b) “criminalizes an intentional attempt to 

achieve a mental state—a minor’s assent—regardless of the 

accused’s intentions [concerning] the actual consummation of 

sexual activities with the minor”) (quoting United States v. 

Berk, 652 F.3d 132, 140 (1st Cir. 2011) (internal quotation 

marks omitted)); United States v. Hughes, 632 F.3d 956, 961 

(6th Cir. 2011) (“Section 2422(b) essentially requires proof 

that the defendant attempted to communicate with the minor, 

and through that communication, transform the minor into his 

victim.”). 

Accordingly, where an adult intermediary is involved, the 

defendant’s interaction with the intermediary must be aimed 

at transforming or overcoming the child’s will to violate 

§ 2422(b). See United States v. Nitschke, 843 F. Supp. 2d 4, 

13 (D.D.C. 2011) (dismissing indictment under § 2422(b) 

where the defendant “never sought Detective Palchak’s help 

in procuring the fictitious minor,” “did not ask Palchak to 

pass along any communication whatsoever to the minor,” and 

“did not make any promises to the minor through Palchak”). 

The “substantial step” required to prove an attempt under 

§ 2422(b) must therefore strongly corroborate the defendant’s 

intent to engage in conduct that is designed to persuade, 

induce, entice, or coerce the minor by way of the 
15

intermediary.

5

 In McMillan, for instance, the Seventh Circuit 

found that the defendant had taken a substantial step when he 

offered to send a picture of his penis to the girl’s father so that 

he could show it to the girl, asked to talk to her directly, and 

asked the girl’s father if he had talked to her about their plans. 

744 F.3d at 1037. See also Dworken, 855 F.2d at 17 (“If the 

substantial steps are themselves the sole proof of the criminal 

intent, then those steps unequivocally must evidence such an 

intent; that is, it must be clear that there was a criminal design 

and that the intent was not to commit some non-criminal

act.”) (emphasis in original). 

Hite also argues that the statute requires the use of a 

means of interstate communication for the act of persuasion 

of the minor (or the attempt to persuade the minor). 

Appellant Br. 17-19. Hite relies heavily on Bailey, but the 

Supreme Court’s reading of “use” of a firearm to require 

“active employment” in the commission of an underlying 

offense was broader than Hite acknowledges. Bailey notes 

 5 For an action to constitute a “substantial step,” it must “strongly 

corroborate[] the firmness of defendant’s criminal attempt,” United 

States v. Farner, 251 F.3d 510, 513 (5th Cir. 2001), such that “a 

reasonable observer, viewing it in context could conclude beyond a 

reasonable doubt that it was undertaken in accordance with a design 

to violate the statute,” United States v. Dworken, 855 F.2d 12, 19-

20 (1st Cir. 1988)) (quoting United States v. Rivera-Sola, 713 F.2d 

866, 870 (1st Cir. 1983)) (internal quotation marks omitted). As set 

forth in a very fine standard instruction on substantial step, “the 

government must prove beyond a reasonable doubt, that the mental 

processes of Defendant [ ] passed from the stage of thinking about 

the crime of [ ] to actually intending to commit that crime and that 

the physical process of Defendant [ ] went beyond and passed from 

the stage of mere preparation to some firm, clear, and undeniable 

action to accomplish that intent.” 2 Kevin F. O’Malley et al.,

Federal Jury Practice & Instructions § 21:04 (6th ed. 2014).
16

that such “use” even includes a defendant’s mere “reference 

to a firearm in his possession” when such reference is 

“calculated to bring about a change in the circumstances of 

the predicate offense.” 516 U.S. at 148. To the extent that 

prohibited “use” is narrowed by the requirement of the 

firearm statute that it occur “during and in relation to” the 

predicate offense, 18 U.S.C. § 924(c)(1) (emphasis added),

that operative phrase was critical to the holding, 516 U.S. at 

150, and because no similar limitation appears in § 2422(b), 

Hite’s reliance on Bailey falls short. Even if the phrase 

“during and in relation to” were present in § 2422(b), it would 

not inevitably follow that the use of interstate communication 

would need to temporally coincide with the act of persuasion, 

for as one of our sister circuits observed in connection with 

§ 924(c)(1), while “temporal proximity between the carrying 

of a firearm and drug trafficking activity is important, a 

finding of temporal proximity or the lack thereof does not 

automatically establish or prohibit a finding of ‘in relation 

to.’” United States v. Bailey, 235 F.3d 1069, 1073 (8th Cir. 

2000), cert. denied, 534 U.S. 879 (2001) (firearm is “carried” 

under § 924(c)(1) by carrying gun in apartment where drugs 

were usually stored and thereby reassuring confederates that 

the apartment was protected, even if “there were no actual 

drug trafficking activities going on in the apartment at the 

time of the carrying”). 

Consistent with this reasoning, we see no requirement 

that the defendant or his intermediary use (or intend to use) 

the telephone or Internet for the decisive act of persuasion of 

the minor. Where an adult intermediary is involved, we hold 

that “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, 
17

enticing, or coercing the minor. See Bailey, 516 U.S. at 144-

48 (holding that “use” of firearm in 18 U.S.C. § 924(c)(1) 

requires an “active employment” of the firearm); United 

States v. McDonald, 877 F.2d 91, 93 (D.C. Cir. 1989)

(reversing conviction under statute making it unlawful for one 

to “employ, hire, use, persuade, induce, entice, or coerce” a 

juvenile to violate the drug laws, where “the jury was never 

presented with evidence showing that McDonald knowingly

was responsible for any ‘use’ of [the minor]” in the drug 

operation) (emphasis in original). Here, the Government 

presented evidence that Hite used the Internet to provide 

Palchak with a photo to show the twelve-year-old girl, which 

a reasonable jury could conclude was an effort to use the 

interstate means to have the adult intermediary persuade the 

girl to engage in sex with Hite. See Berk, 652 F.3d at 140; 

Lee, 603 F.3d at 915-17. In addition, the Government’s 

evidence showed that Hite used the telephone to encourage 

the adult intermediary to perform a sexual act on the threeyear-old boy during a webcam session the next day, which a 

jury could construe as using the interstate means to have the 

adult intermediary perform a “sexual grooming” activity with 

the boy, see United States v. Berg, 640 F.3d 239, 252 (7th Cir. 

2011), with the aim of inducing the boy thereby to engage in 

sexual activity with Hite.

In this case, the Federal Public Defender, acting as 

amicus curiae, argues that Hite’s activities were “mere 

preparations at most and insufficient to constitute attempt.” 

Amicus Br. at 21-22. We need not address the amicus’s 

argument, because Hite has not challenged the sufficiency of 

the evidence on this ground. Hite’s counsel explicitly

acknowledged at oral argument, “[W]e are not contending 

that there is nothing that could possibly be read to constitute 

an act of persuasion, what I’m suggesting is there is no 

evidence that the act of persuasion that was intended was an 
18

act of persuasion in the way that the statute requires.” Oral 

Arg. Tr. at 9:6-14; see also id. at 32:13-20 (Hite’s Counsel: “I 

think I have not made the argument that the elements of 

attempt in the . . . abstract have not been satisfied . . . What I 

have said is that if the statute is construed as we’ve asked it to 

be, the evidence is insufficient . . . .”). 

Although Hite challenges the sufficiency of the evidence 

against him, this challenge is tied to his contention that the 

statute requires direct communication with a minor. Because 

we reject Hite’s proposed statutory interpretation and instead 

hold that communications with an adult intermediary are 

punishable under § 2422(b) so long as those communications 

are aimed at transforming or overcoming the minor’s will,

Hite’s evidentiary sufficiency argument necessarily fails. 

III.

Nevertheless, we conclude that Hite’s conviction should 

be vacated and remand for a new trial, because the District 

Court’s jury instructions failed to accurately state the 

elements of § 2422(b). 

We consider jury instructions as a whole in assessing 

whether they constitute prejudicial error. See United States v. 

Norris, 873 F.2d 1519, 1524-25 (D.C. Cir. 1989); United 

States v. Martin, 475 F.2d 943, 947 (D.C. Cir. 1973). The 

question of whether reversal is appropriate in any given case 

must be considered “in light of all the circumstances – the 

language of the instructions, the arguments of counsel, and 

the evidence itself.” United States v. Lemire, 720 F.2d 1327, 

1339 (D.C. Cir. 1983). “[I]f these factors cumulatively 

indicate that it is highly improbable that the jury found the 

defendants guilty under an improper legal theory, technical 

errors in the instructions are deemed harmless, and we will 

affirm.” Id. On the other hand, “if we conclude that the error 
19

itself had substantial influence – or even if we have grave 

doubts on this question – the conviction cannot stand.” 

Norris, 873 F.2d at 1525 (citing Kotteakos v. United States, 

328 U.S. 750, 765 (1946)). 

In the case at bar, the jury instructions defining the 

requisite intent did not fully comport with the interpretation of 

the statute we announce today. Over defense objection, the 

District Court instructed the jury that “[d]irect 

communications with a child” are not necessary for a jury to 

find a violation of § 2422(b), and that the “government must 

only prove that the defendant believed that he was 

communicating with someone who could arrange for the 

child to engage in unlawful sexual activity.” J.A. 450-51 

(emphasis added). The instructions further provided that “the 

government must prove only that the defendant intended to 

persuade, or induce, or entice, or coerce a minor to engage in 

illegal sexual activity, or intended to persuade an adult to 

cause a minor to engage in unlawful sexual activity.” J.A. 

451 (emphasis added). As discussed supra, the preeminent 

characteristic of the conduct prohibited under § 2422(b) is 

transforming or overcoming the minor’s will, whether through 

“inducement,” “persuasion,” “enticement,” or “coercion.” 

Although the word “cause” is contained within some 

definitions of “induce,” cause encompasses more conduct;

simply “to cause” sexual activity with a minor does not 

necessarily require any effort to transform or overcome the 

will of the minor. Similarly, rather than focusing on 

transforming or overcoming the will of another person, 

“arrange” means to “put (things) in a neat, attractive, or 

required order” or to “organize or make plans for (a future 

event).” OXFORD DICTIONARIES,

http://www.oxforddictionaries.com (last visited Oct. 10, 

2014). Thus although much of the instruction was correct, the 

additional language that the “government must only prove 
20

that the defendant believed that he was communicating with 

someone who could arrange for the child to engage in 

unlawful sexual activity” was erroneous.6

The District Court’s error was highly prejudicial. 

Following this flawed instruction, the jury could have 

convicted the defendant without necessarily finding that he 

intended to transform or overcome the will of either fictitious 

minor, so long as they found that he sought to arrange for 

sexual activity with them. Where the instructions are 

erroneous, causing grave doubts about whether the jury based 

its verdict on the proper construction of guilty purpose or 

intent, a new trial is required. See Yoder v. United States, 80 

F.2d 665, 668 (10th Cir. 1935) (new trial ordered in 

prosecution for interstate transportation of a woman for the 

purpose of prostitution or other immoral purpose (Mann Act), 

where “[t]he court’s charge substituted for the ‘purpose’ 

condemned by the statute the ‘intent’ of defendant” and thus 

allowed conviction even if “any idea of sexual relations was 

. . . subsidiary and . . . unrelated to the reasons for the trip”); 

Welsch v. United States, 220 F. 764, 770 (4th Cir. 1915) (new 

trial ordered in another Mann Act prosecution, where 

erroneous instruction “did give the jury a misleading 

impression, in that it left them at liberty to find the defendant 

guilty . . . if they believed that he had the secret intention of 

profiting unlawfully by the girl’s return, although nothing 

whatever was said or done by him to persuade or influence 

her to do so”). Indeed, the prosecutor suggested to the jury in 

closing argument that Hite could be convicted by proof that 

he merely arranged to have sex with the fictitious children, 

rather than by proof he attempted to transform or overcome 

 6 Although the jury instructions in Laureys used the word 

“arrange,” we did not decide whether such an instruction was 

appropriate. 653 F.3d at 33. 
21

their will, asserting “[i]s there any question that the defendant, 

from that list [of actions] and others that I’m sure you can 

think of, took at least one step towards sexual activity with 

that 12-year-old girl and one step towards sexual activity with 

that 3-year-old boy[?]” J.A. 819. In light of the substantial

influence that the erroneous instructions could have had on 

the jury, we vacate Hite’s conviction and remand for a new 

trial.

IV.

Since we remand the case for a new trial, we briefly 

address those evidentiary rulings that Hite challenges on 

appeal that are likely to recur on retrial: (1) the District 

Court’s decision to exclude the testimony of Hite’s expert 

witness, Dr. Frederick Berlin; and (2) the District Court’s 

decision to prohibit Hite’s counsel from impeaching Detective 

Palchak during cross-examination. We review both rulings 

for abuse of discretion. See United States v. Day, 524 F.3d 

1361, 1369 (D.C. Cir. 2008); United States v. White, 116 F.3d 

903, 919 (D.C. Cir. 1997). 

(a) Dr. Berlin’s Expert Testimony 

In support of his “fantasy-only” defense, Hite proffered 

the testimony of Dr. Frederick Berlin, a board certified 

psychiatrist and founder of the Sexual Behaviors Consultation 

Unit at the Johns Hopkins University Hospital. J.A. 193. 

Hite’s Rule 16 notice of expert testimony disclosed that Dr. 

Berlin would testify (1) on “the difference between a desire 

actually to engage in sexual activity with a minor and mere 

fantasy and role playing,” (the “General Clinical Testimony”)

J.A. 194, (2) on his diagnosis that Hite does not suffer from 

any of the psychiatric conditions that are “associated with a 

desire to have sexual contact with children or that may 
22

predispose an individual to want to engage in sexual activity 

with a child,” (the “Diagnostic Testimony”) J.A. 196, and (3) 

on the relationship between viewing child pornography and 

sexual interest in children, (the “Child Pornography 

Testimony”) J.A. 195-97. The Rule 16 notice further stated 

that Dr. Berlin’s opinions were based on “his background and 

experience in the field of psychiatry, his academic and clinical 

study of sexual behaviors including his examination of 

hundreds of patients diagnosed with clinical pedophilia, a 

forensic analysis and diagnosis of Dr. Hite, and a review of 

the superseding indictment in this case and discovery 

provided by the government to Dr. Hite.” J.A. 193-94.

The Government filed a motion in limine to exclude Dr. 

Berlin’s testimony, arguing, inter alia, that the proffered 

testimony was inadmissible under Federal Rules of Evidence 

401, 404(a)(1), 704(b), and 403. The District Court granted 

the Government’s motion and excluded the proffered 

testimony in its entirety. Mem. Op., J.A. 363, Jan. 24, 2013. 

Two concerns dominated the District Court’s decision to 

preclude Dr. Berlin’s testimony. First, the District Court

found that Hite’s “opposition brief materially alters his Rule 

16 disclosure regarding Dr. Berlin’s most significant 

opinions, often in contradictory ways,” and excluded any 

proffered opinion that it found was not properly disclosed in 

the Rule 16 notice. J.A. 366. For example, the District Court

excluded the Child Pornography Testimony on the ground

that Hite’s Rule 16 notice did not disclose that Dr. Berlin 

would testify that viewing child pornography is not associated 

with a desire to engage in sexual conduct with children. J.A. 

384. Similarly, the District Court excluded the General 

Clinical Testimony on the basis that Hite failed to state the 

independent relevance of the testimony in the Rule 16 notice. 

J.A. 383-84.
23

Second, the District Court concluded that Dr. Berlin’s 

proposed testimony had little probative value because it 

addressed whether Hite possessed the intent to have sex with 

children, which is not an element of § 2422(b). While 

acknowledging that “the issue of the Defendant’s desire to 

have sexual contact with children as a general concept is 

relevant to the case,” the District Court noted that Hite needed 

not possess the intent to have sex with children in order to 

form the requisite mens rea. J.A. 367. On the other hand, the 

District Court reasoned that the proposed testimony would 

confuse the jury as to what intent it must find in order to 

determine Hite’s guilt or innocence. J.A. 380-81.

Expert testimony is admissible under Federal Rule of 

Evidence 702 if it will assist the jury “to understand the 

evidence or determine a fact in issue.” FED. R. EVID. 702. 

When determining admissibility under Rule 702, the District 

Court must ensure that the proffered testimony is both 

relevant and reliable, and that its evidentiary reliability is 

based upon scientific validity. Daubert v. Merrell Dow 

Pharms., Inc., 509 U.S. 579, 590 & n.9 (1993). In this 

instance, we conclude that the District Court erred when it 

excluded Dr. Berlin’s testimony in its entirety. 

We first address the District Court’s finding that certain 

of Dr. Berlin’s proposed testimony must be excluded because 

Hite failed to comply with the disclosure requirements under 

Rule 16(b)(1)(C) of the Federal Rules of Criminal Procedure. 

To the extent that the District Court concluded that Hite’s 

Rule 16 notice was deficient because it failed to set forth the 

relevance of each proposed opinion, see J.A. 383, and because 

this issue could arise on remand, we note that the District 

Court imposed a burden that goes beyond the scope of Rule 

16. Rule 16(b)(1)(C) requires the defendant to provide, at the 
24

government’s request, “a written summary of any testimony 

the defendant intends to use under Rules 702, 703 or 705 of 

the Federal Rules of Evidence as evidence at trial,” if the 

defendant has given notice of an intent to present expert 

testimony on the defendant’s mental condition. FED. R. CRIM.

P. 16(b)(1)(C). While Rule 16 requires the defendant to 

“describe the witness’s opinions, the bases and reasons for

these opinions, and the witness’s qualifications,” id., it does 

not require the defendant to explain the basis of the proposed 

opinion’s admissibility in his notice, and requiring 

explanation of legal basis goes far beyond the purpose of the 

rule. See FED. R. CRIM. P. 16 advisory committee’s note to 

1993 amendments (the purpose of Rule 16(b)(1)(C) is “to 

minimize surprise that often results from unexpected expert 

testimony”); Day, 524 F.3d at 1372. 

Turning to the substance of Dr. Berlin’s proposed 

testimony, we note at the outset that both parties viewed the 

issue of whether Hite possessed a sexual interest in children 

as crucial, and the District Court acknowledged that, 

“[w]hether or not the Defendant is sexually attracted to 

children, though not necessarily dispositive, is relevant to the 

broader question of whether, based on all of the evidence 

presented to the jury, the Defendant intended to entice or 

coerce the fictitious minors to engage in illicit sexual 

activity.” Mem. Op. at 7, J.A. 326 (emphasis in original). 

Indeed, the Government began its closing argument by

highlighting Hite’s sexual interest in children and arguing to 

the jury that “[w]e’re here because of the interest, interest in 

sexual activity with minors, a girl and a boy. Interest of the 

defendant, Paul David Hite.” J.A. 814. On appeal, the 

Government concedes that Hite’s sexual interest in children is 

probative of his intent. Appellee Br. at 46-47; see also Oral 

Arg. Tr. at 24:14-17. 
25

The central focus of Hite’s defense was that he was a 

fantasist with no real sexual interest in children. Because the 

District Court determined that Hite’s sexual interest in 

children was relevant to the question of whether he had the 

requisite intent with respect to 18 U.S.C. § 2422(b), Hite

should have been permitted to introduce the Diagnostic 

Testimony and the Child Pornography Testimony so that he 

could seek to demonstrate to the jury that he did not possess 

such an interest. See United States v. Gladish, 536 F.3d 646,

650-51 (noting that the district court should have permitted 

the defendant’s expert to testify “that it was unlikely, given 

the defendant’s psychology, that he would act on his intent”).7 

On remand, the District Court should allow Hite to introduce 

Dr. Berlin’s testimony that Hite is not sexually interested in 

children. See United States v. Cohen, 510 F.3d 1114, 1127 

(9th Cir. 2007) (improper exclusion of expert testimony not 

harmless where central to the defense). If the District Court 

finds upon remand that the proposed testimony poses a risk of 

confusing the jurors as to the relevant mens rea in the case, it 

has discretion to consider whether to mitigate such a threat 

through limiting instructions, as it did with respect to the prior 

 7 The District Court relied on the Ninth Circuit decision in United 

States v. Hofus, 598 F.3d 1171, 1179 (9th Cir. 2010), in which the 

Ninth Circuit upheld the district court’s exclusion of the proffered 

expert testimony that the defendant was not a pedophile. 

Significantly, in Hofus the district court permitted the expert to 

testify that the defendant “was not a hebophile [having an abnormal 

sexual interest in youthful women with some secondary sexual 

characteristics],” and also allowed him to “testif[y] extensively 

about the large number of people who engage in sexual texting or 

chat rooms for pure fantasy,” id. at 1180, while no similar

testimony was permitted here. We do not suggest such testimony 

would be admissible only for the two purposes identified by the 

district court in Hofus.
26

bad acts evidence that the Government introduced at trial.

8

 

See J.A. 434-45; United States v. Long, 328 F.3d 655, 662 

(D.C. Cir. 2003). 

Likewise, we find that the General Clinical Testimony 

should have been admitted, because it can shed light on what 

may be an unfamiliar topic to most jurors: sexual fantasy 

involving children, particularly the kind that unfolds in the 

virtual realm of the Internet. The District Court 

acknowledged that the concept of Internet-based sexual 

fantasy may be new to many jurors. Mem. Op. at 9, J.A. 371. 

While Dr. Berlin may not testify that Hite lacked the requisite 

intent, see FED. R. EVID. 704(b), expert testimony that

generally explains the world of sexual fantasy on the Internet

is permissible. See United States v. Joseph, 542 F.3d 13, 21 

(2d Cir. 2008) (urging the district court to “give a more 

thorough consideration” to the defendant’s request to present 

expert testimony regarding “a distinct culture of the Internet 

in which one can become a ‘fantasy character’”), abrogated 

on other grounds by United States v. Ferguson, 676 F.3d 260 

(2d Cir. 2011); United States v. Curtin, 588 F.3d 993, 997-98 

(9th Cir. 2009) (the district court permitted the expert 

testimony concerning “the role of fantasies in sexual behavior 

and . . . that many people fantasize about things they would 

never do in actuality”).

 8 The Government was permitted under Rule 404(b) to introduce 

evidence of Dr. Hite’s prior bad acts evincing a sexual interest in 

children, including (1) evidence of Hite allegedly accessing child 

pornography on his laptop computer, and (2) evidence of Hite’s 

Internet communications with adults other than J.P., in which he 

discussed illicit sexual activities with minors. See Mem. Op., J.A. 

320, Jan. 13, 2013. The District Court ruled the evidence

“probative of his intent to entice or coerce the fictitious minors in 

this case.” Id. at 6, J.A. 325. 
27

(b) Cross-examination of Detective Palchak. 

We next turn to Hite’s argument that the District Court

improperly prohibited defense counsel from impeaching 

Detective Palchak with prior testimony. 

At trial, defense counsel asked Palchak if he believed that 

“when a person leaves their computer and gets up and walks 

out the door to come meet an individual that’s when the 

fantasy ends,” apparently trying to argue that the fact Hite 

never travelled to meet J.P. and the fictitious minors supports

the contention that he was a mere fantasist. S.A. 293. When 

Palchak responded, “that’s a complex question to answer,” 

id., defense counsel sought to impeach him with prior 

testimony that he had given in United States v. BeauchampPerez, No. 11-310 (D.D.C. Oct. 19, 2011), and United States 

v. Nitschke, No. 11-138 (D.D.C. Jan. 17, 2012). 

In Beauchamp-Perez, defense counsel asked Palchak

“isn’t it true that when people are talking about fantasy, if you 

say this is not fantasy, it doesn’t necessarily mean it’s not 

fantasy?” J.A. 509. Palchak responded, “I think by the 

statements that I said there about using the other guy as an 

example that he flaked out when he saw a 12-year-old in 

combination with the numerous times that I told him that ‘if 

12 is too young’ and ‘you and I can hook up alone,’ once a 

person leaves his computer, especially after 24 hours, leaves 

his computer and walks out the door to hop on the Metro 

anywhere else, the fantasy ends.” Id. Subsequently, in 

Nitschke, Palchak was asked about his testimony in 

Beauchamp-Perez, namely, whether if he had previously 

testified that “while someone travels down to meet you 

fantasy time is over.” He answered, “Sounds like that’s 

something I would have testified to.” J.A. 513.
28

The District Court ruled that Hite could not introduce 

Palchak’s prior testimony on the grounds that Palchak’s 

response in Beauchamp-Perez was specific to the facts of the 

case, and the defendant in Beauchamp-Perez was charged 

with travel under 18 U.S.C. § 2423(b), not enticement under §

2422(b). J.A. 509; S.A. 301-04. Palchak’s testimony in 

Nitschke did no more than refer to his previous testimony in 

Beauchamp-Perez, and was therefore barred for the same 

reason. S.A. 311. 

The District Court enjoys broad discretion to control 

cross-examination. United States v. Lin, 101 F.3d 760, 767 

(D.C. Cir. 1996); Harbor Ins. Co. v. Schnabel Found. Co., 

946 F.2d 930, 935 (D.C. Cir. 1991). It may disallow crossexamination that is repetitive, irrelevant, unduly prejudicial, 

collateral to the issues in the trial, or outside the scope of 

direct examination. Harbor, 946 F.2d at 935. Although 

district courts should exercise caution in limiting the crossexamination of matters concerning a witness’s credibility, see

United States v. Pryce, 938 F.2d 1343, 1345 (D.C. Cir. 1991),

we have declined to find an abuse of discretion where it is

unlikely that “[a] reasonable jury might have received a 

significantly different impression of [the witness’] credibility” 

even with further questioning. United States v. Davis, 127 

F.3d 68, 70-71 (D.C. Cir. 1997) (quoting Delaware v. Van 

Arsdall, 475 U.S. 673, 680 (1986)) (internal quotation marks 

omitted); see also United States v. Fonseca, 435 F.3d 369, 

375 (D.C. Cir. 2006) (“trial courts are afforded considerable 

leeway in deciding whether to admit” collateral evidence). 

Here, the District Court’s ruling was not an abuse of 

discretion. 

The District Court concluded that Palchak’s prior 

testimony presented a risk of suggesting to the jury that travel 

is one of the elements of the crime at issue. See, e.g., S.A. 
29

295. The District Court additionally found that the prior 

testimony was confined to the context of a specific individual 

who “flaked out” when he saw a twelve-year-old girl, S.A. 

306; J.A. 509, and that the prior testimony could only be 

fairly understood in the context of the specific chats that had 

taken place in those two prior, unrelated cases. S.A. 310-13. 

Furthermore, even though Palchak testified that leaving the 

computer and traveling to meet someone demonstrates that 

the fantasy is over, this statement does not imply that 

everything that happens at the computer is merely fantasy, so 

the District Court ruled that the prior testimony was not 

necessarily inconsistent with his testimony at Hite’s trial, 

weakening its impeachment value and increasing the potential 

for jury confusion. Id. These were sufficient bases for the 

District Court’s decision to disallow the use of Palchak’s prior 

testimony, as the District Court “must be persuaded that the 

statements are indeed inconsistent” prior to allowing 

impeachment, United States v. Hale, 422 U.S. 171, 176 

(1975), and the ruling is sustainable given the “broad 

discretion” we must give to the District Court’s Rule 403 

balancing of probative value versus prejudice and assessment 

of potential for jury confusion. Sprint/United Mgmt. Co. v. 

Mendelsohn, 552 U.S. 379, 384 (2008). Accordingly, we find 

no error in the District Court’s decision to prohibit the 

impeachment of Detective Palchak. 

V.

Lastly, we turn to Hite’s request for reassignment. As 

Hite’s counsel conceded at oral argument, we grant such 

requests “only in extraordinary cases.” Cobell v. 

Kempthorne, 455 F.3d 317, 331 (D.C. Cir. 2006) (citing 

Liteky v. United States, 510 U.S. 540, 555 (1994)); Oral Arg. 

Tr. at 31:4-8. Although we find that the District Court erred, 
30

this case does not present the type of extraordinary 

circumstances warranting a reassignment order. 

Hite contends that reassignment is appropriate because 

the District Court “established a disconcerting pattern of 

ruling” against him “on evidentiary and instructional issues, 

often without any plausible justification and frequently on 

grounds not even the government could bring itself to 

advance.” Appellant Br. at 53. While judicial rulings can be 

evidence of prejudice in certain instances, United States v. 

Barry, 938 F.2d 1327, 1340 (D.C. Cir. 1991), unfavorable 

judicial rulings alone almost never constitute a valid basis for 

reassignment. See Liteky, 510 U.S. at 555; see also United 

States v. Microsoft Corp., 56 F.3d 1448, 1463 (D.C. Cir. 

1995) (per curiam) (“That a judge commits error, of course, is 

by itself hardly a basis for imputing bias or even the 

appearance of partiality.”). 

Here, we are not persuaded upon review of the record 

that the District Court’s evidentiary and instructional rulings 

demonstrate impermissible partiality. This case is a far cry 

from Cobell, on which Hite relies, where we ordered 

reassignment because repeated reversals, combined with the 

district court’s professed hostility toward one of the parties 

and its failure to act as an impartial arbiter on several 

occasions, raised concerns regarding the district court’s ability 

to render fair judgment. See Cobell, 455 F.3d at 334-35. 

Neither are we persuaded the combined effect of the District 

Court’s rulings is sufficient to cause a reasonable observer to 

question whether the judge “would have difficulty putting 

[their] previous views and findings aside on remand,” 

Microsoft, 56 F.3d at 1465. Accordingly, Hite’s request for 

reassignment is denied. 

 
31

VI.

For the foregoing reasons, we vacate the judgment of 

conviction and remand the case for a new trial. 

So ordered.