NOT FOR PUBLICATION FILED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
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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.
5