MEMORANDUM

WILLIAM J. HAYNES, Jr., Chief District Judge.

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 factual circumstances. 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.

A. Government's motion in limine on whether the Government's proof establishes multiple conspiracies under 18 U.S.C.§ 15912 (Docket Entry No. 3034)

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 testified that 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:

(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 thirty defendants, was in sum, that the Defendants:

Count One

Count Two

(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 jury acquitted these Defendants on Count Two.

Count One listed as victims minors Jane Doe One through Four, (Docket Entry No. 591, Second Superseding Indictment at 8-21), but of these victims, only Jane Doe Two testified at trial. Jane Doe Five testified that Defendant Abdifatah Jama Adan enticed her to prostitution with promises of a better life in 1999-2000 in Minnesota. According to Jane Doe Five, in 2000 Defendant Dahir Ibrahim traveled to Minnesota from Nashville looking for girls to take back to Nashville and asked Jane Doe Five if she wanted to travel to Nashville for prostitution. Jane Doe Five decided to move to Maryland and later moved to Nashville to be with her mother. The Government did not prove that Ibrahim ever actually secured and transported any minor girls from Minneapolis to Nashville nor any proof of the ages of any girls. Jane Doe Five opined as to their ages of females at Defendant Fadumo Farah's apartment in Nashville where Jane Doe Five reconnected with Adan and Defendant Fadumo Farah. Jane Doe Five testified that Fadumo Farah operated a prostitution ring at her apartment, but the jury acquitted Defendant Fadumo Farah of any such conspiracy. At trial, there was not any proof tying Defendant Kayachith or Yusuf or Fahra to Jane Doe Five or Adan or Fadumo Farah.

Jane Doe Two testified that on April 25, 2009 she overheard Haji Salad, Abdullahi Afyare, and Liban Sharif Omar planning a trip to Nashville. In response to government's counsel's questioning about this conversation, Jane Doe Two testified that Andrew Kayachith and Abdikarim Ali were present, but did not refer to Kayachith participating in this conversation. The jury acquitted Ali. Yet, Jane Doe Two then testified that throughout the day she was driven around in alleys and Haji Salad, Abdullahi Sade Afyare, and Abdikarim Osman Ali were driving looking for people and calling people to see if they wanted to have sex with Jane Doe Two in exchange for money. Jane Doe Two testified "AK", Kayachith, was driving the vehicle. Neither Mohamed nor Liban Omar are tied to this latter activity. Jane Doe Two then testified that she engaged in sex with ten people in which cash money was exchanged. As stated earlier, this testimony differed from Jane Doe Two's prior statements about April 25th that did not contain any reference to sex trafficking on April 25th. In any event, Jane Doe Two described Defendant Haji Salad as the person who collected the money. For the remainder of April 25, 2009, Jane Doe Two is with Yassin Abdirahman Yusuf. On the morning of April 26, 2009, Jane Doe Two had sex with Biggie without any exchange of money. Kayachith was at the garage where the sex act occurred. On the morning of April 26th Jane Doe Two testified that Abdullahi Afyare contacted a person named "AZ" as a potential purchaser of sex acts, but that sexual act did not occur.

Jane Doe Two testified that reason she engaged in sex the weekend of April 24, 2009 was because Haji Salad, her boyfriend told her to have sex with them and he was already mad at her so she was trying to please him. The undisputed fact is that Jane Doe Two's sex with the gang members was free. From April 27 through April 28, 2009, Andrew Kayachith is one of five persons who traveled from Minnesota to Nashville, Tennessee with Jane Doe Two.

As another tie, the Government cited a jail telephone transcript between Defendants Haji and Liban Omar about preventing Jane Doe Two's family coming to Nashville. Although the transcripts reflect Haji telling Liban Omar to get his brother to talk to Jane Doe Two's family there is not any proof that anyone did so. Further, Mohamed Sharif Omar does not affirmatively state that someone should prevent Jane Doe Two's parents from coming to Nashville. There is a point at which Defendant Salad and Defendant Muhiyadin Hussein Hassan discuss the need for Mohamed Sharif Omar to speak with the parents because Mohamed Omar "is really good with the family." (Docket Entry No. 2636, at p. 2131). Yet, this dialogue amounts to third-party discussion. The jail transcripts also reflect Mohamed Omar castigating Defendant Salad for putting himself in a position to be arrested with Jane Doe Two in Nashville, but the language does not connote conspiratorial behavior, only rebuke.

(Docket Entry No. 2636, at 2121).

The jail transcripts do reveal Mohamed Omar's brothers Defendants, Liban Omar and Abdifatah Sharif Omar ("British"), affirmatively expressing intentions of talking to Jane Doe Two's parents, but the same is not true of Mohamed Omar.

(Docket Entry No. 2636, at 2101).

The jail transcripts illustrate Liban Omar's willingness to block Jane Doe Two's parents from coming to Nashville, but Liban Omar does not provide the Government with a conspiratorial link to Jane Doe Five. Mohamed Omar is the person who allegedly approached Jane Doe Five about engaging in commercial sex, but the jury rejected her testimony. The Government also relies on Liban and Mohamed Omar's familial relationship in asserting that Liban and Mohamed worked together to keep Jane Doe Two's family from coming to Nashville. The government asserts that when Liban Omar says "we will talk to the girl's family" in the above conversation, he means that all of the brothers will do so. The Government asserts that the jail telephone transcripts reveal that Liban Omar would get both of his brothers to talk to Jane Doe Two's family.

(Docket Entry No. 2636, at 2196). To conclude that the "we" Liban is speaking of above includes Mohamed Omar is speculative as to whom is included in "we." The Government's contention that Mohamed Omar is a common thread in a overarching single conspiracy relies on the premise that "Mohamed and Liban plotted to obstruct Jane Doe Two's parents from coming to Nashville," but the Government did not prove how or when they "plotted." (Docket Entry No. 2577, at 9).

The Government also points to a jail phone conversation exchange between Mohamed and Liban Omar where Mohamed tells Liban that the police know "everything," to buttress its argument for Mohamed Omar's centrality in the conspiracy. The following two excerpts provide two pertinent exchanges:

(Docket Entry No. 2636, at 2247).

(Docket Entry No. 2636, at 2252). According to the Government, these exchanges illustrate that Mohamed Omar is a fully integrated member of the sex trafficking of Jane Doe Two to Nashville. The excerpts, however, fail to prove that Mohamed Omar played any role in Jane Doe Two's coming to Nashville (i.e., the "situation"), nor to describe the "common thread" of the conspiracy.

At the time of these telephone calls, the outstanding charges against the Defendants were contributing to the delinquency of a minor, Jane Doe Two, not prostitution. Jane Doe Five did not mention any of these Defendants as having any ties to the 964 apartment in Nashboro Village. The only evidence that the girls at the Nashboro Village residence were underage and were sexually trafficked was from Jane Doe Five. By its verdict on Fadumo Farah, the jury did not credit Jane Doe Five that would include Jane Doe Five's testimony about Adan and Mohamed Sharif Omar. As to Liban Sharif Omar renting a room for Jane Doe Two on April 24th, there is not any evidence of sexual trafficking of Jane Doe Two on that occasion.

The longstanding Sixth Circuit rule is that while a single conspiracy does not become multiple conspiracies simply because each member of the conspiracy does not know every other member, it is necessary to show that each alleged member "agreed to participate in what he knew to be a collective venture directed toward a common goal." United States v. Warner, 690 F.2d 545, 549 (6th Cir.1982) (emphasis added). In addition, the Sixth Circuit has "found single conspiracies even where the connections between the co-conspirators were minimal." United States v. Swafford, 512 F.3d 833, 842-43 (6th Cir. 2008) (citing United States v. Kelley, 849 F.2d 999, 1003 (6th Cir.1988)). Moreover, `"[w]hether single or multiple conspiracies have been established is usually a question of fact to be resolved by the jury . . . and [is] to be considered on appeal in a light most favorable to the government.'" United States v. Warman, 578 F.3d 320, 342 (6th Cir. 2009) (quoting United States v. Smith, 320 F.3d 647, 652 (6th Cir. 2003)). Yet, under Sixth Circuit precedent, if the record establishes multiple conspiracies, then reversal of a conviction is required. Swafford, 512 F.3d at 842. A district court has considered motions for acquittal under Rule 29 on the issue of whether the Government's evidence proved multiple or single conspiracies. United States v. Mayweather, Nos. 94-1414, 94-1530, 94-1482, 94-1705, 94-1483, 57 F.3d 1071, 1995 WL 364220, at *3 (6th Cir. June 16, 1995).

Under the applicable law, the prejudices or evils to be avoided with multiple conspiracies are, as the Supreme Court warned, charging large numbers of defendants in a criminal conspiracy charge such that "as [the conspiracy] is broadened to include more and more, in varying degrees of attachment to the confederation, the possibility for miscarriage of justice to particular individuals becomes greater and greater" Kotteakos v. United States, 328 U.S. 750, 776 (1946). The Supreme Court also warned of piling inference upon inference. Swafford, 512 F.3d at 843 (citing Direct Sales Co. v. United States, 319 U.S. 703, 711 (1943) (" [C]harges of conspiracy are not to be made out by piling inference upon inference, thus fashioning . . . a dragnet to draw in all substantive crimes.")). Thus, the purposes of the prohibition of proof of multiple conspiracies are "`to prevent the prosecution from convicting the defendant of a different offense, not a lesser variation of the charged offense' and impose "guilt to an individual defendant involved in one conspiracy from evidence incriminating defendants in a conspiracy in which the particular defendant was not involved." Warman, 578 F.3d at 342 (quoting United v States v. Hughes, 505 F.3d 578, 587 (6th Cir. 2007) and United States v. Levine, 569 F.2d 1175, 1177 (1st Cir. 1978)).

If the Government's proof established multiple conspiracies instead of the charged single conspiracy, then the Defendants' convictions must be set aside. In Swafford, the Government indicted the defendant in a single conspiracy to manufacture methamphetamine. 512 F.3d at 838. The Sixth Circuit reversed the defendant's conviction for conspiracy because the Court determined that the proof showed multiple conspiracies, not a single conspiracy. Id. at 841. On the issue of whether the Government's proof established a single conspiracy or multiple conspiracies, the Sixth Circuit stated:

Id. at 842-43 (footnotes omitted).

Here, the Government contends that this sex trafficking conspiracy is a "chain conspiracy" that is usually associated with drug conspiracies. In instances of a "chain conspiracy,"

United States v. Brown, No. 97-1618, 221 F.3d 1336, 2000 WL 876382 at *3-4 (6th Cir. June 10, 2000).

As the Sixth Circuit later observed, the chain conspiracy involves proof of vertical structure with proof of significant interdependence among participants and large quantities of drugs.

United States v. Caver, 470 F.3d 220, 233 (6th Cir. 2006) (emphasis added).

As these principles are applied here, the Government's proof does not establish any characteristics of a vertical distribution scheme. There is not evidence of an "enduring arrangement" nor the "significant interdependence" of the members of the alleged conspiracy. The Government's proof does not show interaction of these Defendants with Adan or Mohamed or Liban Omar or Fadumo Farah to achieve an overall goal. The jury's verdict acquitting Fadumo Farah of sex trafficking at the Nashboro Village residence bars any concerted activity with these Defendants. The acquittals of Defendants: Ahmad Abnulnasir Ahmed, Musse Ahmed Ali, Fadumo Mohamed Farah, Dahir Nor Ibrahim, and Mohamed Ahmed Amalie on Counts One and Two; and Defendants Fatah Haji Hashi and Mohamed Ahmed Amalie on Counts One, Two, Twelve and Thirteen necessarily means there was not any interdependence of those Defendants and these Defendants who were convicted. Thus, aside from the Second Superseding Indictment charging two separate conspiracies, the jury's verdict of acquittal on the second count, based on the same facts as Count One, necessitates the conclusion that the Government's proof established multiple conspiracies.

Moreover, these isolated acts of these Defendants and the acquitted Defendants do not evince the large scale activities associated with a chain conspiracy. Most of the actual sex acts with Jane Doe Two were of a non commercial nature. The specifics of disputed commercial sex acts are the 2006 incident at Farah's apartment and the April 25 alley sales of Jane Doe Two for money and the exchanges of liquor and marijuana on one occasion during that time period. The Government's proof of the purpose of the Nashville trip as for sexual exploitation of Jane Doe Two is contradicted by Jane Doe Two's initial statements to Metro officers and Weyker about the purpose of the trip. Jane Doe's testimony also conflicts with the testimony of Hughes, a government witness, who testified under a grant of immunity that the Defendants were not engaged in prostitution or he would have known about it. As Caver explains, evidence of a willing agreement to engage in isolated conduct or transaction is not evidence of a larger agreement to join a large enterprise of sex trafficking, as in a drug distribution conspiracy, with operators at different levels. 470 F.3d at 233. Moreover, the jury acquitted all of the Defendants on Count Two that was the "venture" concept of the Defendants' alleged concerted conduct.

Here, the Government's proof of a conspiracy is more akin to the "wheel conspiracy" or "hub-and spoke conspiracy" where a defendant or defendants at the hub are connected to others or spokes of the wheel. United States v. Galan, 436 Fed. Appx. 467, 469 (6th Cir. 2001) (citing Swafford, 512 F.3d at 842). From the Court's analysis of the Government's proof, there is not any evidence of discernible "hub", but rather the Government's proof is of different and unconnected groups of persons acting with different females at different times in different cities and states. To be sure, there are references to Defendants as members or associates of the Somolia Outlaws or Somalia Mafia mostly through acts of displaying gang signs. Yet, this action presents the very problems that the Supreme Court warned about in charging large numbers of defendants in a criminal conspiracy charge namely that "as [the conspiracy] is broadened to include more and more, in varying degrees of attachment to the confederation, the possibilities for miscarriage of justice to particular individuals becomes greater and greater." Kotteakos v. United States, 328 U.S. 750, 776 (1946). The Supreme Court also warned of piling inference upon inference. Swafford, 512 F.3d at 843. The Court notes that the jury acquitted all the Defendants on Count Two of any conspiracy/venture to exploit minor females for commercial sex trafficking that involves the same facts as in Count one. The jury's verdict acquitting six of the Defendants and acquitting all Defendants of the Count Two conspiracy, as well as the Government's charge of two conspiracies, actually support the Defendants' multiple conspiracies theory.

The Government further asserts that even if the Defendants proved "that a variance resulted in guilt transference, typically any danger of prejudice can be cured with a cautionary instruction to the jury that if it finds multiple conspiracies, it cannot use evidence relating to one conspiracy in determining another conspiracy. United States v. Hughes, 505 F.3d 578, 587 (6th Cir. 2007) (citing United States v. Blackwell, 459 F.3d 739, 762 (6th Cir. 2006)).

The Court's multiple-conspiracies jury instructions in this action included cautionary language, while avoiding "confusing, misleading, and prejudicial" statements of law by clearly stating that the jury must find that Defendant participated in the conspiracy alleged in the Second Superseding Indictment to convict Defendant of conspiracy. Blackwell, 459 F.3d 739, 762. In pertinent part, the Court's multiple-conspiracies instruction read:

(Docket Entry No. 2659, Trial Transcript of Final Jury Instructions, "Multiple Conspiracies Claims," at 181-182) (emphasis added).

Yet, the lynchpin of this issue does not, as the Government contends, rest upon proper jury instructions alone. While the Court's instructions may have dutifully admonished the jury about using evidence of a conspiracy proven by the Government that was not included in the Second Superseding Indictment to convict the Defendants, this does not end the Court's inquiry into the curative nature of the jury instructions. The Government here fails to address the Sixth Circuit's contention in Blackwell that "the more evidence presented at trial that is unrelated to the defendant's conduct, or a conspiracy in which the defendant took part, the less likely instructions are to cure the danger of guilt transference." Blackwell, 459 F.3d at 762.

In Blackwell, the Sixth Circuit upheld the defendant's insider trading conspiracy conviction because the Court found the defendant had not been prejudiced at trial. The Court considered the number of conspiracies the evidence establishes, the number of non-conspiratorial co-defendants tried with defendant, and the size of the conspiracy alleged in the indictment in determining whether a variance was prejudicial. See id. (citing Kotteakos, 328 U.S. at 766). Following Blackwell's blueprint, the Court here concludes that the convicted Defendants were prejudiced by: (1) the Government's proof of five conspiracies; (2) that the Second Superseding Indictment charged thirty Defendants for conspiracies spaning almost ten years; and (3) the jury acquitted all the Defendants on Count Two, the Government's "venture" theory of the Defendants' alleged concerted conduct that relies on the same facts as Count One. Unlike Blackwell, where the conspiracy involved far fewer than thirty defendants, and a much more tightly linked group of defendants, the single conspiracy indictment in this action cannot be saved by carefully crafted jury instructions alone. Id. at 749.

As a conceptual matter, the Court finds it difficult to conceive a single conspiracy when the Second Superseding Indictment actually charges two distinct conspiracies. From the Court's review, there was not any proof that the thirty Defendants, including these Defendants were "acting in furtherance of a common goal or that there was any significant interdependence among them." Swafford, 512 F.3d at 842. For these reasons, the Court concludes that under Swafford, the Defendants' motions for a dismissal on grounds of the Government's proof of multiple conspiracies rather than the single conspiracy in the Second Superseding Indictment should be granted. Assuming the identical proof at the first trial, the Court does not discern any basis to alter its prior ruling on multiple conspiracies.

B. Government's motion in limine on whether evidence related to nonsexual crimes can be introduced to prove a "venture" under 18 U.S.C. § 1591(a)(2) (Docket Entry No. 3035)

The United States asserted at the first trial that proof of a "venture" for sex trafficking under 18 U.S.C. § 1519(a)(2) may include proof of non-sexual criminal acts where two or more of the Defendants were together, notwithstanding that the cited conduct was unrelated to or did not involve sex trafficking. The Government's specific proof was testimony of St Paul area police officers who stopped or arrested two or more of the Defendants for various crimes, burglary, traffic stop, property damage, attempted burglary, loitering and robbery.

The Court excluded such proof because those incidents "aren't tied in any way as acts that would help the sex trafficking venture succeed." (Docket Entry No. 2636, at 2188). Citing several Circuit decisions, including Sixth Circuit, the Court concluded that the definition of "venture" for Section 1591(a)(2)4 limits the proof to acts involving sex trafficking.

(Docket Entry No. 2636, at 2178-80) (emphasis added).

The Court also noted that this proof was Rule 404(b) evidence and the Government was seeking to use its "venture" theory to introduce Rule 404(b) evidence of other crimes. Aside from the authorities cited above, the Court would exclude such proof as unfairly prejudicial as an effort to prove sex trafficking charges by evidence of arrests wholly unrelated and uncharged crimes.

The Court also noted that for the Government's theory, the RICO Act5 would encompass any crime unrelated and different criminal activity that was on behalf of the enterprise. Although the Government noted that enterprise and ventures were similarly defined, the Court stated that: "venture is an element of the offense" and "venture for sex trafficking requires proof the Defendants engaged in sex trafficking and proof of a traffic offense is not qualifying proof." In a word, "to prove two or more individuals are associated in a venture for a violation of this statute, the conduct pursuant to that venture under these cases has to be to promote the underlying offense. That is, to promote sex trafficking." Id. at 2183-84.

As a matter of statutory construction, the Court must examine the parts of a statute as a whole and cannot isolate any particular provision and then use that provision "as a vehicle to ensnare conduct that the statute never contemplated." United States v. Thomas, 74 F.3d 701 (6th Cir. 1996) ("criminal statutes are to be strictly construed and that "no offense may be enacted except by the words Congress used in their usual and ordinary way"). The Fifth Circuit ruled in Longoria for Section 1591(a)(2) that "[in] ere negative acquiescence" is insufficient, Longoria, 569 F.2d at 425, "Iu]nless there is some sort of active proceeding on his part; he must incite, or procure, or encourage the criminal act, or assist or enable it to be done, or engage or counsel, or command the principals to do it." United States v. Aarons, 718 F.2d 188, 191 (6th Cir. 1983) (quoting Morei v. United States, 127 F.2d 827, 830-31 (6th Cir.1942)) (emphasis added). Thus, the Court again concludes that mere membership in the gang or association of two or more Defendants was insufficient to prove a venture under Section 1591(a)(2) and to be participant in the venture, the Government had to prove that the Defendant committed an "overt act" to advance the sex trafficking activities charged in the Second Superseding Indictment. The issue of "overt acts" is also discussed infra, at p. 33.

C. Government's motion in limine on whether Title 18 U.S.C. § 1591 applies only to Sex Trafficking of persons under the age of 18 years (Docket Entry No. 3036)

In this motion, the Government challenges the Court's ruling at the prior trial that, 18 U.S.C. § 1591 applies only to the sex trafficking of children under the age of 18. The Court charged the jury that to find a defendant's guilt the United States was required to prove beyond a reasonable doubt that the person was under the age of 18 at the time of the alleged offense. (Docket Entry No. 2659 at 17738-17739, 17743-17744, 17756-17756-17757). Earlier, the Court entered an Order that 18 U.S.C. § 1591 did not apply to the sex trafficking of adults, citing United States v. Todd, 627 F.3d 329, 331-332, 334-335 (9th Cir. 2010). (Docket Entry No. 2897at 18907). The Government contends this ruling would exclude evidence regarding sex trafficking by means of force, threats of force, fraud, and coercion of persons 18 years of age or older in the next trial of several Defendants.6

At the first trial, the United States argued that 18 U.S.C. § 1591 applies to the sex trafficking of persons 18 years of age and older where such sex trafficking involves the use of force, the threats of force, fraud, or coercion as provided in the statute. Citing Todd, 920 F.3d at 401 and other Sixth Circuit precedent, the Court cited the statute's language and title, cardinal rules of statutory construction and a law review article to conclude otherwise.

(Docket Entry No. 2651, at 3005-08).

(Docket Entry No. 2653, at 3069-70).

The Court cannot discern any error in its prior ruling on this issue nor from its review of the decisions cited by the Government. (Docket Entry No. 3134 at 6-10).

D. Government's motion in limine on whether sex is a "thing of value" for a conviction under 18 U.S.C. § 1591 (Docket Entry No. 3037)

The Government's next motion reflects its theory at trial that sex with Jane Doe Two was a "thing of value" that the Defendant gave to gang members. The Government does not cite a statute or court decision that sex alone is a "thing of value" under Section 1591 nor did any witness testify that they considered sex with Jane Doe Two to be a "thing of value". The Government argued that the statute refers to giving, and that to the extent a victim was given for sex, the sex would be considered a thing of value. (Docket Entry No. 2651 at 17251-17263).

The phrase `commercial sex act' is set forth in Section 1591 and has been interpreted by the Courts to mean any sex act, on account of which anything of value is given to or received by any transactions that sex is economic in nature or pecuniary gain. At trial, the Court cited United States v. Paris, 2007 Westlaw 3124724 at *8 (D. Conn. Oct. 24, 2007) and other decisions that commercial sex acts under Section 1591 are economic in nature. As the Court observed at the first trial:

(Docket Entry No. 2629, at 1143-44).

THE COURT: Well, the problem with that, it struck me that if that were true, then the Johns would be subject to liability under the act.

(Docket Entry No. 2647, at 2934-36).

(Docket Entry No. 2651, at 3017-18).

This motion challenges the Court's various statements during the trial, but the Court's actual jury instruction was that what constitutes a "thing of value" was a factual issue for jury to decide: "Money need not be involved in order for you to find that value was given or received on account of the sex act. Whether anything is of value depends on the facts of each case. You must decide in this case if anything of value was exchanged for any sexual act. However, you must find beyond a reasonable doubt that something of value was involved." (Docket Entry No. 2659 at 17723-17724); see also Docket Entry No. 2958-1 at 19370.

Again, the Court observes the Government's legal construction is unsupported by case law, and the Court does not discern any error in allowing the jury to decide the Government's factual theory on what constitutes a "thing of value" under Section 1591.

E. Government's motion in limine on whether Teachers and Law Enforcement Officers are experts when testifying to their perception of a person's age

In this motion, the Court is asked to reconsider whether a teacher's testimony at the prior trial regarding her perception of a child's age was expert testimony. (Docket Entry No. 15766-15793). The Government also challenges the Court excluding similar proffered evidence of law enforcement officers' opinions regarding the age of any person. (Docket Entry No. 2631 at 15794-15795).

Federal Rule of Evidence 701 authorizes the admission of lay opinion testimony, but such testimony "is limited" and can "not be based on scientific, technical or other specialized knowledge." (emphasis added). Where a law enforcement officer provides fact testimony and opinion testimony, a special jury instruction must be given on expert testimony. United States v. Lopez-Medina, 461 F.3d 724, 748-50 (6th Cir. 2006). Where the age of a witness is a critical issue in a criminal case, expert testimony may be necessary, United States v. Katz, 178 F.3d 368, 373 (5th Cir. 1999), but is not always required. United States v. O'Malley, 854 F.2d 1085, 1086-88, n.3 (8th Cir. 1988); United States v. Riccardi, 298 F.Supp.2d 1212, 1219 (D. Kan. 2003).

Prior to trial, several defendants earlier moved for disclosures of experts' reports, but the Government represented that no such reports were to be used and the Court denied the defense motions. (Docket Entry Nos. 1088, 1213 and 1613). At trial, the Court permitted several lay witnesses to give their opinions about Jane Doe Two's age. The Government then sought to elect from a teacher, opinion testimony on Jane Doe Two's age, citing the teacher's years of service and the number of students whom the teacher observed over her more than 30 years of service. The Court excluded such testimony for reasons set forth in the following colloquy with Government's counsel:

(Docket Entry No. 2630, at 1554-56).

The Court also observed that: "[T]o call a witness to the stand, and once they identify their vocation and manner in which they came to know the Jane Doe Two, once you have asked them their occupation, that's going to carry with it the whole set of implied qualifications and experiences on age that, from the Court's perspective, necessarily implicates Rule 702, which is a separate requirement before you can present expert testimony. And the Court believes that just their status as teachers puts them in that category." (Docket Entry No. 2631, Judge Haynes at 15792-15793). The manner in which the Government sought to elicit testimony from teachers and intended to elicit from police officers led the Court to conclude that these witnesses' testimony was or would be based upon their specialized knowledge from numerous years in their line of work. Opinion testimony based upon specialized knowledge is subject to Daubert standards. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 147-49 (1999). If the testimony is presented on the same bases as at the first trial, the Court will follow the same ruling.

F. Government's motion in limine on admission of expert testimony in the United States rebuttal proof

At the first trial and after the Court's ruling on the teachers, the Government next sought to present expert testimony from a radiologist and forensic dentist as rebuttal proof. (Docket Entry No. 2647 at 17041, 17044-17048, 17059-17062). During trial, late on or about April 8, 2012, the Government served defense counsel with statements of a radiologist and forensic dentist who opined about Jane Doe's age. These reports cited Jane Doe's birth date as September 10, 1994 that is based upon immigration records. The DNA tests revealed the dates of birth on immigration documents to be false. Defendants also cited the lack of the bases for these experts' opinions and their qualifications.

The Court granted the requests to exclude these expert statements based upon the precedent in this district and the fundamental unfairness to the defense for the Government to secure experts during the trial to perform testing that the Defendants could not contest. See United States v. Davis, 514 F.3d 596, 604 (6th Cir. 2008) (upholding district court's denial of exclusion of expert report based upon the Government's substantial compliance with Rule 16(a)(1)(G)). No such substantial compliance is present here. The Court noted that if the Defendants had offered expert testimony on Jane Doe Two's age, then the Court would admit the testimony of the Govermnent's experts in rebuttal. Id. at 17061. The Court also cited historical practice of this Court to bar testimony of experts who performed experiments and analysis during trial. The Local Rule of this district requires a party to provide the expert's report prior to trial to afford the opposing party a fair opportunity to respond to the expert proof. (Docket Entry No. 2647 at 1760).

The Government also contends that rebuttal witnesses are recognized exceptions to all witness disclosure requirements, citing United States v. DiCarlantonio, 870 F.2d 1058, 1063 (6th Cir. 1989) and United States v. Frazier, 387 F.3d 1244, 1269 (11th Cir.2004); United States v. Barrett, 766 F.2d 609, 617 (1st Cir.1985); United States v. Angelini, 607 F.2d 1305, 1308-09 (9th Cir.1979).

First, rebuttal evidence is limited to "new" defense evidence or theories. United States v. Bland, 2007 WL 2781114, at *3 (6th Cir. Sept. 25, 2007) (citing Toth v. Grand Trunk R.R. Co., 306 F.3d 335, 345 (6th Cir. 1981). Defendants did not offer any "new evidence" expert or otherwise, nor assert a "new theory" of defense. The Defendants relied upon the documents in the Government's discovery disclosures.

Moreover, the Court's ruling also cited the radiologist's and dentist's reports reliance upon Jane Doe Two's September 19, 1994 birth date that is based upon false immigration documents and Jane Doe Two's false birth certificate. A year prior to trial, the Government's lead counsel knew Jane Doe Two's birth certificate was false. In addition, the defense counsel cited their need to consult experts to cross examine the Government experts about the effects of the circumstances of Jane Doe Two's life in Somalia prior to arrival in this country. Without expert assistance, defense counsel could not provide effective assistance of counsel in cross examining an expert. The logistics of securing an expert for indigent Defendants in the middle of trial were preclusive barriers.

If the same factual scenario arises at the second trial, the Court is unaware of any legal basis for a different ruling. The Court did note that expert testimony would be necessary for the age issue for a second trial that should render this issue moot.

G. Government's motion in limine on whether a violation of Title 18 U.S.C. § 1591(a)(2) requires proof of an overt act

In this motion, the Government challenges the Court's ruling that 18 U.S.C. § 1591(a)(2) requires proof of an overt act. The Court instructed the jury, in pertinent part, that "[w]here a conspiracy involves a criminal venture, as in Section 1591(a)(2), a member of the conspiracy must agree to commit an overt act for the purpose of advancing or helping the conspiracy." (Docket Entry No. 2659 at 17730). The Court further charged the jury:

(Docket Entry No. 2659 at 17733).

During the trial and the conference on jury instructions, the Court provided its rationale for this instruction.

(Docket Entry No. 2636, at 2062, 2178-79). The Government has not identified nor does the Court discern any error in its ruling.

H. Government's motion in limine on whether the testimony of Khaulid Noor, Farhan Daud and Dahir Daud is admissible (Docket Entry No. 3038)

This motion focuses on the Court's exclusion of these witnesses' testimony for lack of any tie to the Defendants and the prejudice to the Defendants, if witnesses testified. In summary, the Government's position was expressed as follows:

(Docket Entry No. 2631, Transcript at 9-15) (emphasis added).

Id. at 15-16.

The Court then concluded a final colloquy with Government counsel:

Id. at 16-18 (emphasis added). As a defense counsel noted, during the grand jury proceeding, lead government counsel asked a witness four times if the van was green, but the witness repeatedly responded blue.

"Relevant evidence" is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401; United States v. Warman, 578 F.3d 320, 347 (6th Cir. 2009) Fed. R. Evid. 402 excludes "irrelevant" evidence. Moreover, under Rule 403 of the Federal Rules of Evidence, "[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed. R. Evid. 403.

Here, the Government's proof with these witnesses refers to two individuals "BG" and "Jamal" who are not identified by anyone. "Jamal" is referred to as the person who made the arrangements for sex with Jane Doe Two. Although these three witnesses are stated to have had commercial sex with Jane Doe Two, these witnesses could not identify Jane Doe Two, the location of acts is ill defined by reference to two locations, and one witness described the van as of a different color. Under these circumstances, the Court does not discern the probative relevance of these witnesses. These circumstances are suggestive of other bad acts that are not tied to these Defendants. In this setting, the Court considers this proof to be marginally relevant, but highly prejudicial and would exclude this proof again under Fed. R. Evid. 403.

Accordingly, for these reasons, the Court concludes that Government's motions in limine (Docket Entry Nos. 3034, 3035, 3036, 3037, 3038, 3039, 3040, and 3041) should be denied.

An appropriate Order is filed herewith.