United States v. Adan
| Decision Date | 19 December 2012 |
| Docket Number | No. 3:10–cr–00260.,3:10–cr–00260. |
| Citation | 913 F.Supp.2d 555 |
| Parties | UNITED STATES of America, Plaintiff, v. Abdifatah Jama ADAN et al., Defendants. |
| Court | U.S. District Court — Middle District of Tennessee |
OPINION TEXT STARTS HERE
John P. Cauley, Franklin, TN, for Defendants.
Van S. Vincent, Blanche B. Cook, Office of the United States Attorney, Nashville, TN, for Plaintiff.
This Memorandum addresses oral motions for acquittal that the Court reserved under Fed.R.Crim.P. 29(b) and post trial motions filed by Defendants Idris Ibrahim Fahra, Andrew Kayachith and Yassin Abdirahman Yusuf. After trial, the parties requested extensions of time to file responses, supplemental responses, replies and surreplies. Given the factual complexity of this action, the Court granted these requests. The last reply was filed by the Defendant Yusuf on October 5, 2012. (Docket Entry No. 2875). Because these defense motions raise overlapping and interrelated factual contentions as well as common legal issues, this Memorandum addresses all of these Defendants' motions, except Defendant Fahra's renewed and supplemented motion for judgment of acquittal (Docket Entry No. 2890) on venue.1
The United States filed this action against thirty Defendants and in the Second Superseding Indictment, the Grand Jury charged the following offenses for which these defendants were tried and that are pertinent for the motions addressed in this Memorandum:
Count One—conspiracy to violate 18 U.S.C. § 1591(a)(1) in violation of 18 U.S.C. § 1594(c); for conspiracy to recruits, entices, harbors, transports, provided, obtains or maintains anyone under the age of 14 and under the age of 18 for commerical sex acts in violation of 18/1951(a)(1);
Count Two—conspiracy to violate 18 U.S.C. § 1591(a)(2) in violation of 18 U.S.C. § 1594(c) for conspiracy to benefit financially or by receiving anything of value, from participating in a venture which recruits, entices, harbors, transports, provides, obtains or maintains anyone under the age of 14 and under the age of 18 in violation of 18/1951(a)(2);
Count Twelve—knowingly recruiting, enticing, harboring, transported provided and obtaining by any means a minor under the age of 14, Jane Doe Two, for commercial sex 18 U.S.C. § 2 and 1591(a).
Count Thirteen—knowingly recruiting, enticing, harboring, transported provided and obtaining by any means a minor under the age of fourteen, Jane Doe Two, by means of force, threats of force, fraud and coercion enticement and transport of a minor female Jane Doe Two who had not attained the age of 18 to engage in commercial sex in violation of 18 U.S.C. § 2 and 1591(a).
(Docket Entry No. 591, Second Superseding Indictment at 3–25 and 36–38).
To provide context for the trial and issues in these motions, in earlier proceedings, the Court denied the Defendant Bashir Yasin Mohamud's motions for severance (Docket Entry Nos. 521 and 961), but Defendants Bashir Yasin Mohamud filed a second motion for a severance and other Defendants filed motions for a severance on various grounds. (Docket Entry Nos. 933, 1051, 1060, 1065, 1071, 1079, 1086, 1116 117 and 1307). The Court granted those motions in part and denied in part. (Docket Entry Nos. 1394 and 1395). Pursuant to Fed. Crim. P. 8(a), the Court severed Counts 15, 16, 17, 18, 19, 20, 22 through 24 from the March 20, 2012 trial of this action. (Docket Entry No. 1395). Pursuant to Fed.R.Crim.P. 14, the Court also severed charges against Defendants Bashir Yasin Mohamud and Mustafa Ahmed Mohamed for a separate trial for those Defendants on Counts 15, 16, 17, 18, 19, 20, 22 through 24 that involved or were related to sex trafficking of adult females. Id.
In subsequent proceedings, based upon the legitimate request of Defendant Hamdi Ali Osman for new counsel, the Court severed all charges against Defendant Hamdi Ali Osman from the March 20, 2012 trial. The Court did so in the interests of justice to allow her new counsel to be appointed and to be prepared for trial. Based upon the similarity of the counts and to avoid repetition of witnesses, the Court also provided Defendants: Abdullahi Sade Afyare, Yasin Ahmed Farah, Muhiyadin Hussein Hassan, Abdifatah Sharif Omar, Liban Sharif Omar, Mohamed Sharif Omar, Haji Osman Salad and Bibi Ahmed Said, the option to be severed and tried with Defendant Hamdi Ali Osman in a joint trial. All of these latter Defendants filed notices of their elections to be severed from the March 20, 2012 trial. (Docket Entry Nos. 1632, 1633, 1636, 1647, 1648, 1656 and 1670).
Jury selection commenced on Tuesday, March 20, 2012 and a jury was empaneled on March 22, 2012, but the Court granted several defense counsel's motions for a stay or continuance of the trial. (Docket Entry No. 2133). These defense counsel cited the Government's recent disclosures of more than 6000 pages of documents, including the lead agent's rough notes, other police officers' emails and recorded 2009 interview of Defendant Hersi. These disclosures were made during jury selection on March 23, 2012. The Court continued the trial for one (1) week to April 2, 2012 to enable defense counsel to review those voluminous discovery materials. At a March 29, 2012 status conference, Defendant Abdullah Hashi requested a second continuance because some of the rough notes in these belated discovery materials were in redacted format and unreadable. (Docket Entry No. 2177). The Court granted that motion and set a hearing on whether the Government's proof could establish that the Defendants Abdullah Hashi, Abdirahman Hersi and Hassan Ahmed Dahir were 18 years of age at the time of their alleged offenses. After the latter hearings, the Court concluded that the Government's proof of these Defendants' ages at the time of their offenses was insufficient to establish the Court's jurisdiction and that under Lewis v. Kendrick, 944 F.2d 949, 957 (6th Cir.1991) these Defendants were governed by the Juvenile Delinquency Act. (Docket Entry No. 2554). The Court granted the Government's motion for a mistrial without prejudice. Id. Trial for the remaining Defendants resumed on April 4, 2012. (Docket Entry Nos. 2210 and 2258).
After proof and argument concluded on April 30, 2012, the jury deliberated five days before returning a verdict of acquittals of Defendants: Ahmad Abnulnasir Ahmed, Musse Ahmed Ali, Fadumo Mohamed Farah, Dahir Nor Ibrahim, and Mohamed Ahmed Amalle on Counts One and Two; and Defendants Fatah Haji Hashi and Mohamed Ahmed Amalle on Counts One, Two, Twelve and Thirteen. The jury found Defendant Idris Ibrahim Fahra guilty on Counts One and Twelve, but not guilty on Counts Two and Thirteen. The jury found Defendants Andrew Kayachith and Yassin Abdirahman Yusuf guilty on Count One, but not guilty on Counts Two, Twelve and Thirteen. In sum, only three defendants Idris Ibrahim Farah, Andrew Kayachith and Yassin Abdirahman Yusuf were found guilty on Count One and only defendant Idris Ibrahim Fahra was found guilty on Count Twelve.
Before the Court are the following oral and written motions that were made during trial, orally at the close of the Government's and defense's proof and after the jury's verdict:
(1) Idris Fahra's, Andrew Kayachith's and Yassin Yusuf's oral motions for acquittal at the close of the Government's proof and renewed at the conclusion of all proof that the Court reserved under Fed.R.Crim.P. 29(b);
(2)Yassin Yusuf's motion to dismiss (Docket Entry No. 2280);
(3) Yassin Yusuf's motion to dismiss (Docket Entry No. 2296);
(4) Andrew Kayachith's motion to dismiss (Docket Entry No. 2392) that Defendant Yusuf joined;
(5) Yassin Yusuf's motion for a new trial (Docket Entry No. 2502);
(6) Yassin Yusuf's motion for judgment notwithstanding the verdict/renewed motion for acquittal (Docket Entry No. 2507); and
(7) Defendant Kayachith's motion for a new trial (Docket Entry No. 2617) that Defendant Yusuf joined. (Docket Entry No. 2618).
The Government has filed its responses, supplemental responses and a surreply. (Docket Entry Nos. 2396, 2552, 2577, 2694 and 2709). The Court will group these motions based upon the common claims and issues presented.
The common claims in these defense motions are: (1) the insufficiency of the Government's proof on Jane Doe Two's actual age and on these Defendants' agreement to join any conspiracy to sex traffic minors; (2) the Government's presentation of the false testimony of Jane Doe Two; and (3) the Government's proof establishing multiple conspiracies, not a single conspiracy. To assure consideration of each Defendant's specific contention, the rationale for each Defendant's motion is set forth below.
At the close of the Government's proof and the conclusion of all proof, Defendant Fahra moved for acquittal, arguing in sum: (1) that the Government's proof contains a fatal variance by showing multiple conspiracies; (2) that Jane Doe Two's testimony about prostitution is not in any of her prior grand jury testimony nor in police reports nor the Government's bill of particulars; (3) the lack of proof that the Defendant Fahra went with Jane Doe Two to any of the apartments where Jane Doe Two described acts of prostitution; and (4) that Jane Doe Two's testimony on the dates that she was at Defendant Fahra's apartment are significantly inconsistent. In response, the Government cited Jane Doe Two's testimony that acts of prostitution occurred at Defendant Fahra's apartment, that Defendant Fahra permitted and benefitted from prostitution at his apartment, and that under the applicable law, these claims are jury issues and proof of the exact dates of these acts is not required.
Similarly, at the close of the Government's proof and at the conclusion of all proof, Defendant Kayachith moved for acquittal, contending, in sum: that was the Government's proof...
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