United States v. Paul Hite

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 eleven-
year-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-and-
jelly 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-year-
old 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-and-
jelly 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 cross-
examination. 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 Ҥ 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 three-
year-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. Beauchamp-
Perez, 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 cross-
examination 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 cross-
examination 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.