United States v. James Hitt

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 28, 2022
• Docket: 19-10116
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 28 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10116

Plaintiff-Appellee, D.C. No. 2:15-cr-00117-GEB-1 v.

JAMES JAY HITT, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, Jr., District Judge, Presiding

Argued and Submitted February 9, 2022 San Francisco, California

Before: WARDLAW, IKUTA, and BADE, Circuit Judges.

James Jay Hitt appeals his conviction and sentence for receipt and

distribution of child pornography. See 18 U.S.C. § 2252A(a)(2). We have

jurisdiction under 28 U.S.C. § 1291. We affirm.

1. The district court did not abuse its discretion by admitting evidence

under Federal Rule of Evidence 404(b) of Hitt’s prior conviction for lewd and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. lascivious acts with a minor under 14. The Government satisfied the four-part test

for admission under F.R.E. 404(b). See United States v. Hardrick, 766 F.3d 1051,

1055 (9th Cir. 2014). First, the evidence of Hitt’s past conviction was probative of

Hitt’s identity as the user of the king.james123456 email account (king james

account) through which he received and distributed child pornography. The king

james account user had also sent emails explicitly referencing a prior conviction

that was consistent with Hitt’s criminal history. See id. (F.R.E. 404(b) evidence

must be relevant to “a material element of the offense”) (internal quotation marks

omitted). Second, because the evidence was admitted to prove identity, rather than

intent, the Government did not need to show that Hitt’s prior conviction was

“similar to the offense charged.” See id. (internal quotation marks omitted). Hitt

concedes the third element: that his prior conviction was “based on sufficient

evidence.” See id. (internal quotation marks omitted).

Fourth, the conviction was not too remote in time because of the

Government’s theory of admissibility. See United States v. Spillone, 879 F.2d 514,

519 (9th Cir. 1989) (“Depending upon the theory of admissibility[,] . . . some

remote acts may be extremely probative and relevant.”); see also United States v.

Johnson, 132 F.3d 1279, 1283 (9th Cir. 1997). The Government sought admission

to prove Hitt’s identity as the king james account user, that user had sent emails

about serving time for a past conviction for child sex abuse, and according to those

2 emails, the underlying conduct ceased over 20 years ago. The prior conviction was

therefore particularly probative and relevant, despite the remoteness of the

conduct.

Nor did the district court abuse its discretion in finding the prior conviction

admissible under F.R.E. 403. See Hardrick, 766 F.3d at 1055. The district court

properly concluded that the probative value was high and not outweighed by unfair

prejudice in light of the central role that identity played in the trial. Moreover, the

Government “sanitized” the evidence of the prior conviction to mitigate the risk of

unfair prejudice. See United States v. Thornhill, 940 F.3d 1114, 1122–23 (9th Cir.

2019). It read a stipulation to the jury limited to the probative aspects of the

conviction’s timing, Hitt’s resulting imprisonment, and that the offense involved

sexual contact with a minor younger than 14 years old.

2. The district court abused its discretion by admitting images and videos

of child pornography without actually viewing them, which the Government does

not dispute. United States v. Curtin, 489 F.3d 935, 958 (9th Cir. 2007) (en banc).

We conclude, however, that this error was harmless. See United States v.

Carpenter, 923 F.3d 1172, 1182–83 (9th Cir. 2019). The properly admitted

evidence “was highly persuasive and overwhelmingly pointed to guilt.” United

States v. Bailey, 696 F.3d 794, 804 (9th Cir. 2012). The Government introduced

evidence showing that the king james account user had frequently received and

3 distributed child pornography. This same user had selected the username “James

Hitt,” accessed an internet account associated with Hitt’s home address and phone

number, received emails from Hitt’s wife, described a prior conviction consistent

with Hitt’s criminal history, listed Hitt’s truck on Craigslist, and provided Hitt’s

home phone number as his own phone number. Moreover, the Government

produced evidence that the same computer and storage devices containing child

pornography also contained Hitt’s resume, family photos, and credit reports. It

also provided a forensic examination of Hitt’s computer matching its search history

to the timing and content of emails sent from the king james account.

3. The district court did not plainly error by increasing Hitt’s offense

level by five levels for engaging in “a pattern of activity involving the sexual abuse

or exploitation of a minor.” U.S.S.G. § 2G2.2(b)(5); see also Rosales-Mireles v.

United States, 138 S. Ct. 1897, 1904–05 (2018) (plain error review). Because Hitt

confessed to sexually abusing a nine-year-old girl by fondling her around 12 times

over the course of three years, the conduct underlying his 1993 conviction qualifies

as a pattern of sexual abuse or exploitation as defined in the application notes to

U.S.S.G. § 2G2.2(b)(5). U.S.S.G. § 2G2.2(b)(5), App. Note 1. Definitions

(defining “sexual abuse or exploitation” as a state offense that would be

criminalized under 18 U.S.C. § 2241 if committed within the United States’s

special maritime or territorial jurisdiction). By confessing to engaging in “two or

4 more separate instances” of this abusive conduct, Hitt confessed to a “pattern of

activity involving the sexual abuse or exploitation of a minor.” Id.1(defining

pattern of activity as two or more instances).

4. The district court imposed a substantively reasonable sentence. See

United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). It considered

the appropriate sentencing factors under 18 U.S.C. § 3553(a), weighing heavily the

need for deterrence and protection of the public in light of Hitt’s continued sexual

interest in children. Cf. United States v. Maier, 646 F.3d 1148, 1156–57 (9th Cir.

2011) (upholding sentence as substantively unreasonable on similar factors).

Moreover, the court considered at sentencing the circumstances that Hitt raises on

appeal, including the abuse he previously suffered and his health diagnoses. The

court reasonably concluded, however, that these circumstances did not warrant

leniency given the totality of the circumstances, including Hitt’s multiple prior

convictions for sex offenses.

AFFIRMED.

1 Because this conduct qualified Hitt for the five-level increase under § 2G2.2(b)(5), we do not address whether Hitt’s 2000 conviction for annoying or molesting a child would have also qualified him for the increase.