United States v. Afyare
| Decision Date | 12 June 2013 |
| Docket Number | No. 3:10-cr-00260,3:10-cr-00260 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. ABDULLAH SADE AFYARE, et al, Defendants. |
| Court | U.S. District Court — Middle District of Tennessee |
MEMORANDUM
Before the Court are the following motions in limine filed by the United States that, in essence, challenge the Court's rulings at the prior trial in this action:
To control costs and to meet the Government's request for an appeal in sufficient time in advance of the October 2013 trial, the Court designated certain defense counsel to file a defense response to each Government motion and allowed any other defense counsel to file a supplemental memorandum on any of these motions. The Court also set a deadline for the Government's replies that were filed on May 2, 2013. (Docket Entry Nos. 3133, 3134, 3135, 3137, 3139, 3140 and 3154). The Defendant Farah filed a response on May 6, 2013. (Docket Entry No. 3145). On May 13,2013, the Government subsequently filed a response to Defendant Farah's May 6th response. (Docket Entry No. 3154).
As a threshold issue, the Government's motions seek advance rulings for the October 22, 2013 trial on whether the Court will reaffirm its rulings at the first trial based upon the law of the case doctrine. The Government also cites decisions recognizing the Government's right to appeal evidentiary rulings.1 Under the law of the case doctrine, the Court can revisit its earlier rulings and alter any ruling upon a showing of a manifest injustice or clear error of law or changed factualcircumstances. Arizona v. California, 460 U.S. 605, 618 (1983). Yet, in its motions, the Government does not present any analysis of the Court's earlier rulings for legal or factual error nor does the Government cite any legal authority nor advance a theory under which the cited evidence could be admissible. In its replies, the Government cites authorities to which the Order did not provide for a response from the Defendants and any amendment would cause further delays
The Court also agrees with the Defendants that "[a] party may use a motion in limine to exclude inadmissible or prejudicial evidence before it is actually introduced at trial" Luce v. United States, 469 U.S. 38,40 n.2 (1984). Yet, in its motions, the Government "requests the court to revisit the issues" raised at trial. (Docket Entry No. 3130 at 2). The Government motions are actually motions to reconsider that under Local Rule 7.01 should have been filed fourteen (14) days after the ruling to afford an opportunity to cure before the trial ended. Motions to reconsider are limited to "manifest errors of law or fact." Calderon v. Reno, 56 F.Supp.2d 997, 998 (N.D. Ill. 1999) (citations omitted). As noted in the Court's earlier memorandum, these motions rest on numerous contingencies at the next trial. (Docket Entry No. 3102, Memorandum at 3-4). With the prospect of more than ten (10) new Defendants for the second trial the evidence will likely be different or be presented differently that could also alter the Court's earlier rulings. Id.
At the prior trial, a common defense challenge was that the Government's theory was a single conspiracy, but the Government's proof actually established multiple conspiracies and created material variances from the Second Superceding Indictment. In its post-trial ruling, the Court set aside the convictions of three Defendants in part, for this reason. (Docket Entry No. 2968, Memorandum at 22-39). Defendants argued that the Government's proof established five distinct conspiracies: (1) the Jane Doe Five conspiracy from 2000 to 2006 involving Defendants Adan and Ibrahim; (2) the 2006-2009 conspiracy involving Jane Doe Five and Defendant Adan, Ibrahim and Fadumo Farah; (3) the 2006 to 2007 Jane Doe Two conspiracy involving Defendants Abdullah Hashi, Mohamed Ahmed Amalle, Fuad Nur and Idris Ibrahim Fahra; (3) the May 2007 Rochester trip involving Defendants Fatah Hashi, Hassan Ahmed Dahir and Yassin Abdirahman Yusuf; and (5) the April 2009 Jane Doe Two conspiracy involving Defendants Abdullahi Sade Afyare, Abdikarim Osman Ali, Haji Salad, Yassin Abdirahman Yussuf, Abdirahman Yusuf, Ahmad Abdulnassir Ahmad and Kayachith.
Defendants also cited large time gaps in the Government's proof of any sexual activities involving Jane Does Two and Five. For Adan's 1999-2000 cited recruitment of Jane Doe Five, Defendant Yusuf was not charged with any acts in the conspiracy until 2007 with Jane Doe Two. The activities involving Jane Doe Two were from November 2006 through May 2007 and later from April 24, 2009 through April 28, 2009. Defendants noted that after July 2007, there was not any evidence of Jane Doe Two's sex activity with these Defendants. Jane Doe Two admitted that she did not engage in any prostitution activities during this two year time period. Jane Doe Two testifiedthat she did not discuss prostitution with Defendant Haji Osman Salad, her boyfriend, prior to April 25, 2009. There was Internet communication with Jane Doe Two by Defendant Haji Salad who is Jane Doe Two's boyfriend. Defendant Kayachith is not mentioned as being with Jane Doe Two until April 24, 2009.
In its response to Yusuf motion for acquittal, the Government describes the factual predicates for the single conspiracy:
Defendant[s] Mohamed Sharif Omar and Liban Sharif Omar are the common threads running through the conspiracy. Mohamed Omar Sharif trafficked [Jane Doe Five], Mohamed Sharif visited 964 Village Hills Drive looking for girls. Mohammed and Liban plotted to obstruct [Jane Doe Two's] parents from coming to Nashville. Liban rented a room to further the sex trafficking of [Jane Doe Two]. Yusuf was one of the Defendants who brought [Jane Doe Two] from Minnesota to Nashville for the purpose of sex trafficking. Defendant [Yusuf] has made no argument or submitted any proof that he has ever withdrawn from a conspiracy. Thus, there is enough evidence to support a finding that a single conspiracy existed and Defendant's claim should be denied.
(Docket Entry No. 2577 at 9). In opposition to Defendant Kayachith's motion for new trial on this multiple-conspiracies contention, (Docket Entry No. 2854), the Government cited to its earlier memoranda on the defense severance motions. Id. at 1. After a review of the latter submissions, the detailed response cites the Defendants' participation in a "venture" as defined in 18 U.S.C. § 15(e)(5) and referenced in Section 1591(a)(2). At the trial, the jury acquitted all Defendants on the venture theory in Count Two.
As to this multiple conspiracies contention, the Second Superseding Indictment charged two counts of conspiracy that were tried. The core of the two conspiracy3 counts involving thirtydefendants, was in sum, that the Defendants:
Count One
did combine, conspire, confederate and agree with each other and others known and unknown to the Grand Jury, to recruit, entice, harbor, transport, provide, obtain, and maintain by any means a person knowing and in reckless disregard of the fact that the person had not attained the age of 14 years and had not attained the age of 18 years and would be caused to engage in a commercial sex act, and knowing and in reckless disregard of the fact that the person had not attained the age of 18 years and that means of force or fraud or a combination of such means would be used to cause a person to engage in a commercial sex act in violation of Title 18, United States Code, Section 1591(a)(1).
Count Two
did combine, conspire, confederate and agree with each other and others known and unknown to the Grand Jury, to benefit financially and by receiving anything of value, from participation in a venture which engaged in an act of recruiting, enticing, harboring, transporting, providing, obtaining, and maintaining by any means a person knowing and in reckless disregard of the fact that the person had not attained the age of 14 years and had not attained the age of 18 years would be caused to engage in a commercial sex act and knowing and in reckless disregard of the fact that the person had attained the age of 18 years and that means of force or fraud or a combination of such means would be used to cause a person to engage in a commercial sex act in violation of Title 18, United States Code, Section 1591(a)(2).
(Docket Entry No. 591, Second Superseding Indictment at 7-8, 24). The second conspiracy count charged a conspiracy to participate in a "venture" to benefit from the sexual trafficking of minor females. As to Count Two, according to the Government's lead counsel: "It's the same acts that make up the conspiracies." (Docket Entry No. 2645, Transcript at p. 2623). As stated earlier, the...
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