WILLIAM J. HAYNES, JR., Chief Judge.
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.
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
(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,
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:
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 of multiple conspiracies constitutes a material variance from the Second Superseding Indictment's theory of a single conspiracy and that Government failed to present any proof that Kayachith entered into an agreement with any other person to commit the crime of sex trafficking of a minor. In his motion to dismiss, Defendant Kayachith contends, as did Fahra, that Jane Doe Two gave false testimony about having sex with ten men for money on the weekend of April 25, 2009 and any verdict based upon that false testimony cannot stand.
At the close of the Government's proof and at the conclusion of all proof, Defendant Yusuf moved for acquittal, arguing in essence:(1) that the Government did not prove Jane Doe Two's age beyond a reasonable doubt; (2) that Jane Doe Two's earlier statement to Yusuf in 2007 that she was 16, precludes his guilt based upon any conduct in 2009; (3) that a fatal variance exists between the Government's evidence at trial of multiple conspiracies and the Government's theory of an overarching single conspiracy in the Second Superseding Indictment; and (4) that the Government's proof did not establish Defendant Yusuf's agreement to join any conspiracy, as alleged by the Government.
In response, the Government argues, in essence, that its proof was sufficient to support the Defendants' convictions; that
These Defendants contend that the Government did not prove Jane Doe Two's age beyond a reasonable doubt. The Second Superceding Indictment's allegations concerning Jane Doe Two's age are that "On or about November 26, 2006, Jane Doe Two, a Somalia female and person who had not obtained the age of 13 years, was enticed to engage in sex acts for the ultimate purpose of obtaining her for use in commercial sex acts." (Docket Entry No. 591 at 10). Here, given the provisions of 18 U.S.C. § 1591 that applies to a "person who has not attained the age of 18 years", Jane Doe Two's date of birth is a critical element of the Government's proof
On direct examination at trial about her age, Jane Doe Two first testified that she was 17 years of age and was born on September 10, 1996. Jane Doe Two received this information from her mother. Jane Doe Two stated that she learned shortly before her testimony that this birth date is false. Jane Doe Two admitted that in 2007, she represented to Defendant Yusuf that she was 16 years of age. The Government's other proof of Jane Doe Two's age included school records, testimony from classmates and photographs. In addition, Darnell Hughes, a government witness, testified that before the April 2009 trip to Nashville, Jane Doe Two was offered to him for sex, but Hughes declined because he thought Jane Doe Two was too young.
DNA tests and subsequent stipulations establish that the immigration records reflecting Jane Doe's September 10, 1999 birth date are false. The immigration records provide the bases for other public records of Jane Doe Two's birth date. During trial on April 12, 2012, Jane Doe Two who testified that she is a high school senior, listed herself on her Facebook page as working in the "NBA" National Basketball Association and having "studied at Ridgewater College Willmar, MN". (Docket Entry No. 2629, at pp. 1365-66; Docket Entry No. 2465, Witness/Exhibit List, Defendant 29 Exhibit 7, at 4). Darnell Hughes, a government witness admitted that when Jane Doe Two was offered to him for sex, Jane Doe Two showed him a driver identification with an older age. Yusuf's proof included documentary evidence that on her website application, Jane Doe Two listed her birthday as July 26, 1990
A motion for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure is "a challenge to the sufficiency of the evidence." United States v. Jones, 102 F.3d 804, 807 (6th Cir.1996). If the Court reserves a motion for acquittal at the end of the Government's proof, then the Court can consider only the proof presented at the time of the motion. Fed.R.Crim.P. 29(b). The standard for deciding a motion for acquittal
Where the age of a witness is a critical issue in a criminal case, expert testimony may be necessary
These Defendants' next challenge is, in essence, whether the Government proved beyond a reasonable doubt that each of these Defendants joined the overarching single conspiracy with other Defendants to engage in the sexual trafficking of minor females. In sum, Kayachith contends that the Government lacks any proof that Kayachith knew about this conspiracy and voluntarily joined any such conspiracy. Defendant Fahra argues that the Government witnesses, Jane Doe Two and Muna Abdulkidar, identified him as involved only with Jane Doe Two who disputed the dates in the Government's bill of particulars as to when she was at Fahra's apartment before the May 6th trip to Rochester. Fahra also cites the lack of any proof that he went on any travel to offer Jane Doe Two for sex trafficking.
Here, the jury found these Defendants guilty on Count One of the Second Superseding Indictment that charged a conspiracy from 2000 through July 2010 involving four minor Jane Does One through Four, but of those, only Jane Doe Two testified. There was proof that Defendants Adan and Ibrahim interacted with Jane Doe Five in 2000 to engage in prostitution as a minor. At trial, Jane Doe Five testified that in 2000 Defendant Adan induced her into sex trafficking as minor at the age of 17. As to that inducement, the Government's theory was that Defendant Fadumo Farah, Adan's wife, was a part of this conspiracy that continued to Nashville in 2010, but the jury acquitted Fadumo Farah of such activity. Adan pled guilty to a non-sex trafficking charge. (Docket Entry No. 2115).
According to the Government's proof, Defendants Fahra and Yusuf interacted with Jane Doe Two from November 2006 to May 2007. The Government's proof was that at Defendant Fahra's apartment Jane Doe Two was told by Fahra and others to engage in sex for money and money was collected at Fahra's apartment for non gang members' sex with Jane Doe Two. According to Jane Doe Two, she went to Fahra's apartment as a runaway in November 23, 2006 when Jane Doe Two admitted there was not any prostitution activity. Both Jane Doe Two and Saida Haji testified that at this residence, Jane Doe Two performed sex acts with several individuals before she performed oral sex on Kayachith. Jane Doe Two testified that nothing of value was exchanged for any of these sex acts.
The Government's proof was that in 2007, Defendant Yusuf drove Jane Doe Two to Rochester Minnesota and Jane Doe Two testified that she was to be sold for sex in Rochester, but Jane Doe Two earlier stated that the Rochester trip was to conduct a robbery. There was a weapon found in the vehicle when the vehicle was stopped and Jane Doe Two was playing with the weapon.
In April 2009, Defendants Kayachith, Fahra and Yusuf interacted with Jane Doe Two. The Government's proof at trial about Kayachith's involvement with Jane Doe Two was in the April 24-28, 2009 conduct. According to Jane Doe Two, on April 25, 2009 she overheard Defendants Haji Salad, Abdullahi Afyare, and Liban Sharif Omar, aka Sunderra, planning a trip to Nashville. Andrew Kayachith was present during that conversation, but there
Defendant Kayachith cites testimony that at approximately 4 p.m. on April 24, 2009, Defendant Kayachith was at the residence of Abdikarim Ali when Haji Salad and Abdullahi Afyare brought Jane Doe Two to that residence. Both Jane Doe Two and Saida Haji testified that at this residence, Jane Doe Two performed sex acts with several individuals before she performed oral sex on Kayachith. Jane Doe Two testified that reason she engaged in sex the weekend of April 24, 2009 was because Hollywood told her to have sex with them and he was already mad at her so she was trying to please him. For the remaining part of April 24, 2009, Jane Doe Two testified that she remained with this group of guys and later attended an Africa Night Party. She finished the night at the Americ Inn Hotel where she had sexual intercourse with Defendant Haji Salad and others without any exchange of money.
Defendants cite the testimony of Jane Doe Two on cross-examination admitting that she never stated in her prior statements and/or testimony that any sex acts performed by her on April 25th were in exchange for money. On cross-examination, Jane Doe Two did not testify that Kayachith agreed to prostitute her. Darnell Hughes, a government witness, overheard a conversation between Defendant Haji Salad and Mohamed Ahmed Amalle about Jane Doe Two's sex acts. The jury, however, acquitted Amalle. A person identified as DK was present during this discussion of the sexual acts that Jane Doe Two would perform. Hughes, however, did not relate this conversation about these sex acts to sex trafficking nor state that Kayachith participated in this conversation. Hughes testified that the Defendants were not engaged in any prostitution because if they had, he would have heard about that. Hughes also explained that the Nashville trip had been planned prior to that April 27-29 weekend and, because he was ill, Jane Doe Two wanted to take his place in the vehicle.
On the conspiracy charge "[w]hat is controlling is whether the government has proved that there was an overall agreement on a common goal". United States v. Robertson, 67 Fed.Appx. 257, 261 (6th Cir.2003). "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).
The jury credited Jane Doe Two's testimony that she was sold for sex at Fahra's apartment with others in 2006 and traveled to Rochester with Yusuf for sex trafficking.
These Defendants next challenge as false Jane Doe Two's testimony as to her age and other matters about her involvement with these Defendants. Defendant Fahra cites Jane Doe Two's inconsistencies about the dates of the purported acts with him. These Defendants cite Jane Doe Two's material omissions about being sold for sex because such statements are not in her numerous prior interviews with police officers and agents nor in her grand jury testimony about the events of April 25, 2009. The Government contends that any differences and inconsistencies are matters for the jury and as a matter of law, do not constitute the use of false testimony.
The earlier analysis of the Defendants' contentions about the sufficiency of the Government's evidence of Jane Doe Two's age is incorporated herein by reference. Defendants cite additional instances of testimony about Jane Doe Two's age that the Defendants contend are, in fact, false testimony.
On direct examination, Jane Doe testified that her father died before she left Africa for the United States in 1996
Another false statement of Jane Doe Two cited by Defendant Yusuf is Jane Doe Two's sworn statement filed with Tennessee state authorities that she was "abducted" to Tennessee in April, 2009. (Docket Entry No. 2465, Witness/Exhibit List, Defendant 29 Exhibit 1, at 4). Shortly after
During or shortly after the Metro police interview, Heather Weyker, the government's lead agent in this action, also interviewed Jane Doe Two. In a taped telephone conversation of this interview, Weyker asks Jane Doe Two why she ran away again. Jane Doe Two has a history of repeatedly running away from home with several of the Defendants in this action. Moreover, the proof was that Jane Doe Two actively sought out several of the Defendants. Darrell Hughes, a Government witness who testified under a grant of immunity, testified that Jane Doe Two wanted to take his place on the Nashville trip. Defendants contend that this evidence is wholly inconsistent with Jane Doe Two's sworn statements to Tennessee authorities that she was abducted for the Tennessee trip. As noted earlier, Hughes testified that the Defendants' travel to Nashville was not to engage in any prostitution because if so, he would have known about it.
Defendant Fahra cites Jane Doe's inconsistent statements about the dates that Jane Doe Two engaged in acts of prostitution at various apartments, as contradicting the Government's bill of particulars.
Another part of the Defendants' false testimony contentions are the material omissions in Jane Doe Two's trial testimony. In sum, the Defendants cite Jane Doe Two's omissions of material facts in her numerous interviews with police officers, agents and her testimony before the grand jury about her observing money exchanged for sex with her. The core of this falsity claim is that despite the numerous interviews with law enforcement agents and government counsel, Jane Doe Two never mentioned that she had sex with at least ten people on Saturday, April 25, 2009, nor that she observed money exchanging hands for sex with her, until trial. The Government contends these defense assertions are jury issues and also cites the jury instructions that in assessing credibility of a witness, consideration is given to any material statements that a witness testifies to at trial, but omitted in prior statements about the events at issue.
At trial, Jane Doe Two, the Government's principal witness, testified during her direct examination that on Saturday, April 25, 2009, prior to the Nashville trip, she had sex with at least ten people in alleys in Minneapolis in exchange for money. On cross-examination, Jane Doe Two again testified that this sexual activity was in exchange for cash money that she observed exchange hands. Defendant Kayachith
(Docket Entry No. 2392, Kayachith's motion to dismiss at 3, Grand Jury Transcript, pages 78-79; Docket Entry No. 2645, Trial Transcript at pp. 2665-66) (emphasis added). In addition, Defendant Yusuf cites Jane Doe Two's failure to mention, prior to her trial testimony, that her trip to Rochester, Minnesota was to go to an apartment for sex.
Defendants argue that Jane Doe Two's testimony about money exchanges for sex are significant and material omissions of material facts given this extensive multi-state investigation of commercial sex trafficking. Defendant Kayachith cites Jane Doe Two's approximately thirty interviews with investigators and prosecutors over the past three and half years. Kayachith argues that Jane Doe's Two's statements about sex for money is not in any of the 50,000 pages of these Jane Doe Two interviews and other documents produced by the Government in this action prior to trial. Kayachith's counsel also cites his pretrial request of Government's lead counsel to provide any report or document reflecting Jane Doe Two's trial testimony on observing the exchange of money for sex with her. The lead Assistant United States Attorney confirmed that there were not any documents or reports reflecting this testimony and explained that not all a witness's statements is recorded in reports and that Jane Doe Two's Grand Jury testimony only discussed her sex with gang members. Defendants also argue that Jane Doe Two's observation of the money exchange also is not listed in any overt acts in the Second Superseding Indictment nor in the Government's bill of particulars for the trial of this action that was required by Court Order.
The Government's response is that Jane Doe Two's trial testimony about money exchanging hands was an addition to her previous testimony. The Government argues that discrepancies between grand jury testimony and trial testimony are not material and were resolved by the jury. The Government notes that Jane Doe Two also testified that "there was a lot of people that day. It was a long Saturday," (Docket Entry No. 2628, Trial Transcript at p. 926), and cite testimony that Jane Doe Two had free sex with gang members that also was "something of value" for the sex trafficking charges.
As noted earlier, contrary to the Court's discovery orders, the Government produced more than 6,000 pages of agents' notes and emails after the trial started. Among those documents are four pages of undated rough notes, including notes of Heather Weyker, the Government's lead agent.
For his motion to dismiss based upon Jane Doe Two's material omissions and false trial testimony, Kayachith cites Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), Rosencrantz v. Lafler, 568 F.3d 577 (6th Cir.2009), and United States v. LaPage, 231 F.3d 488, 490 (9th Cir.2000). The Government responds that in a criminal trial, the credibility of the witness is a jury determination, citing Hoffa v. United States, 385 U.S. 293, 311, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).
As to whether a prosecutor failed to correct false testimony, Defendants must prove that: (1) the statement was actually false; (2) the statement was material; and (3) the prosecution knew it was false. Coe v. Bell, 161 F.3d 320, 343 (6th Cir.1998). The Defendants' burden is to show that the testimony was actually perjured. United States v. Griley, 814 F.2d 967, 971 (4th Cir.1987). To set aside their convictions as based upon false testimony, the cited testimony must be "indisputably false testimony." Rosencrantz, 568 F.3d at 585. A conviction obtained by the knowing use of perjured testimony must be set aside if "the false testimony could ... in any reasonable likelihood have affected the judgment of the jury". Id. at 583. If there is any reasonable likelihood that the government knowingly relied on perjury to obtain a guilty verdict, reversal is required. Knighton v. Mullin, 293 F.3d 1165, 1174 (10th Cir.2002).
As examples of meeting this burden of demonstrating perjury, where a witness gives a "credible recantation", such a showing is insufficient, unless the witness "recants the testimony that names the defendant as the perpetrator of the crime". See Smith v. Roberts, 115 F.3d 818, 820 (10th Cir.1997) (footnote omitted). Where a government witness admits on cross examination that his testimony on direct examination about not discussing forfeiture of property "was [n]ot entirely true," was not false testimony because the witness's testimony on direct examination "was not material". United States v. Langston, 970 F.2d 692, 700-01 (10th Cir. 1992). "[I]nconsistencies between [a witness's] grand jury and trial testimony does not warrant the inference that the government knowingly introduced false testimony". United States v. Hemmer, 729 F.2d 10, 17 (1st Cir.1984) (citing United States v. Holladay, 566 F.2d 1018, 1019 (5th Cir. 1978) ("Presentation of a witness who recants or contradicts his prior testimony is not to be confused with eliciting perjury. It was for the jury to decide whether or not to credit the witness"); United States v. Crockett, 435 F.3d 1305, 1316 (10th Cir. 2006) (rejecting claim of false statement where witness testified in grand jury that Defendant planned to bring back the $500,000 in offshore funds in increments smaller than $10,000 to avoid notifying the IRS, but later testified at trial that they recovered the offshore funds in seven transactions, all but one of which were in amounts much larger than $10,000).
The Defendants' next common challenge is that the Government charged a single conspiracy, but actually proved multiple conspiracies at trial that constitutes a material variance requiring the setting aside of their convictions. Defendants argue 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 cite large time gaps in the Government's proof of any sexual activities involving any Jane Does Two and Five. For Adan's 1999-2000 cited recruitment of Jane Doe Five, Defendant Yusuf is not charge 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 note 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 were 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
As to this multiple conspiracies contention, the Second Superseding Indictment in this action charges two counts of conspiracy that were tried. The core of the two conspiracy counts involving thirty defendants, was in sum, that the Defendants:
(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 of the Second Superseding Indictment 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
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 cites 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
(Docket Entry No. 2636, at p. 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 p. 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 p. 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 p. 2247).
(Docket Entry No. 2636, at p. 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. There was not any evidence that the girls at the Nashboro Village residence were underage and were sexually trafficked. 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,
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, 66 S.Ct. 1239, 90 L.Ed. 1557 (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, 63 S.Ct. 1265, 87 L.Ed. 1674 (1943) (
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 Amalle on Counts One and Two; and Defendants Fatah Haji Hashi and Mohamed Ahmed Amalle on Counts One, Two, Twelve and Thirteen necessarily means there was not any interdependence of those Defendants and these Defendants. 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
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, 66 S.Ct. 1239, 90 L.Ed. 1557 (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, 66 S.Ct. 1239). Following Blackwell's blueprint, the Court here concludes that the Defendants were prejudiced by: (1) the Government's proof of five conspiracies; (2) that the Second Superseding Indictment charged thirty Defendants for conspiracies spanning 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 conclude proof of a single conspiracy when the Second Superseding Indictment actually charges two 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 that the single conspiracy in the Second Superseding Indictment should be granted. If the Court is in error on the issue of multiple conspiracies, the Defendants remain entitled to a new trial for the reasons set forth below.
During the trial of this action the Defendant Yusuf made several oral motions and filed two motions to dismiss (Docket Entry Nos. 2280 and 2296) based upon the Government's
As to the violations of the discovery Orders, given the complexity of this action and the number of Defendants, the Court ordered the Government to produce discovery materials 42 days prior to trial. Yet, during trial the Government produced more than 6,000 pages, including the lead agent's notes. The Government lead counsel who is responsible for discovery stated that he did his best. For the cited new evidence about Jane Doe Two's age, the Government contends that the affidavits submitted are inadmissible evidence and that the asserted facts are not new because Yusuf had the opportunity to call Jane Doe Two's mother, but elected not to do so.
Yusuf asserts that based upon late information produced by the Government at trial, he has learned since conclusion of the trial from members of the Somalian community that a cousin in Jane Doe Two's family stated that Jane Doe Two was born in 1990 or early 1991. Asha Mohamed, Jane Doe Two's mother's cousin stated to a friend that she was present for Jane Doe Two's birth and cared for Jane Doe Two and her mother after Jane Doe Two's birth. In addition, Yusuf acquired information that Jane Doe Two's parents actually separated in 1991 and did not see each other until 1996 in the United States.
After describing a typographical error in an earlier affidavit, Hibo Ali Caabi, the friend to whom Asha Mohamed made these statements, states, in pertinent part:
(Docket Entry No. 2875-2 at 1-2) (emphasis added).
In addition, Yusuf presented proof from Mohamed Abdi Wahab who is listed as Jane Doe Two's brother on her mother's immigration file. In his affidavit, Wahab states that Hibo Ali Caabi is, in fact, his biological mother and he was added to Jane Doe Two's mother's refugee application, as her son, to fit the family profile for refugee status.
(Docket Entry No. 2875-1 at 1) (emphasis added).
In response to this proof, the Government contends that Caabi's and Wahab's affidavits are inadmissible hearsay and contain double hearsay. As hearsay, the Government argues that neither of these affidavits qualifies as new evidence. Moreover, the Government cites defense counsel's ability to call Jane Doe Two's mother as a witness at trial.
For this claim of newly discovered evidence, the Defendants must show: (1) that the cited evidence was discovered after trial; (2) that the cited evidence could not have been discovered earlier; (3) that the evidence is material, not cumulative or impeachment; and (4) the evidence could likely result in an acquittal. United States v. Sypher, 684 F.3d 622, 626 (6th Cir.2012); United States v. Jones, 399 F.3d 640, 648 (6th Cir.2005).
First, as to the admissibility of these affidavits, particularly Caabi's affidavit with the statements of Jane Doe Two's mother's cousin, Fed.R.Evid. 803(19) provides, in pertinent part: "The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:" a statement of "reputation among a person's family ... or among a person's associates or in the community — concerning the person's birth ... or similar facts of personal or family history." Federal Rule of Evidence 804(b)(4)(A) and (B) provide, in relevant part, that "[t]he following are not excluded by the rule against hearsay if the declarant is available as a witness: ... (A) the declarant's own birth ... (B) another person concerning any of these facts...." Prior to the amendments to these Rules, a declarant was deemed unavailable if "[t]he proponent of her statement has been unable to secure her attendance by process or other reasonable means" United States
Applying these Rules and principles, regardless of the unavailability of Caabi and Asha Mohamed for trial, Rules 803(19) and 804(b)(4)(B) would appear to allow the admissibility of these statements for purposes of the Defendant's motion for a new trial. The Defendants may secure these witnesses for trial by deposition or attendance in which any hearsay contentions would be moot. The Government has had or at a trial would have the opportunity to challenge these statements by calling Jane Doe Two's mother to test the reliability of this evidence.
To provide context for the analysis of the materiality of this evidence, the Jane Does and Defendants are refugees from Somolia. The Government relied upon their immigration records referred to as A-files. These A-files list the names of the refugees' sponsor, the applicant refugee and members of the applicant's family who would also be awarded refugee status. Among the data in the A-files is each person's date of birth and relationship to the applicant. Jane Doe Two was listed on her mother's A-file with a birth date of September 10, 1994 and listed her father as deceased. With belated disclosures by the United States and based upon his counsel's investigation, Yusuf filed a motion for DNA testing of Jane Doe Two's stepfather whom members of the Somalia community in Minneapolis stated was Jane Doe's biological father. The Government opposed Yusuf's motion as groundless and Jane Doe Two's mother and stepfather filed affidavits (signed by their counsel) denying that the stepfather was Jane Doe Two's biological father and vigorously opposed Yusuf's motion for DNA testing. The Court granted Yusuf's motion, and the DNA test result was that to a 99.99% certainty, Jane Doe Two's stepfather is her biological father. Based upon his arrival in the United States, Jane Doe Two's birth date in her mother's A-file was physically impossible and demonstrably false.
In earlier proceedings, other Defendants asserted that they were minors at the time of the events at issue. After evidentiary hearings, the Court found that proof established the false and highly unreliable nature of the information on these A-files. Refugee applicants fabricated birth dates and listed persons who were not family members on their applications in their A-files. On April 19, 2012, during the trial, Jane Doe Two's mother admitted that she was not the mother of Mohamed Abdi Wahab, whom she listed on her application in her A-file as her son. (Docket Entry No. 2502-1). In other instances, multiple children were given identical days as their birth dates on the refugee applicant's A-file. In an earlier hearing, an immigration official testified that such listings were unlikely to be true and unreliable from the face of the documents. The Court deemed such proof to raise serious issues about the reliability of these A-files.
In addition, a year prior to trial, the Government was aware that Jane Doe Two's mother submitted a false birth certificate for Jane Doe Two to Tennessee authorities seeking victim benefits for Jane Doe Two arising out of the Nashville trip. Jane Doe Two's 2010 application for victim benefits filed with Tennessee authorities contained a statement in which Jane Doe Two actually listed her stepfather as her biological father with whom she was living.
As to materiality of the Caabi and Whab affidavits, Jane Doe Two's age is a critical element of the Government's proof for a violation of 18 U.S.C. § 1951(a). Evidence from a family member or member of the Somalia community and Jane Doe Two's family friend about Jane Doe's birth is highly probative evidence. It must be remembered that on her website, Jane Doe Two listed her birth date as 1990, a fact consistent with Ahsa Mohamed's statement. Given that the Government did not produce the A-files until trial, the belated disclosures severely limited defense counsel's opportunity to investigate the information in those files during the trial. The presence of witnesses in Africa and England underscores the defense counsel's inability to discover this information prior to trial. This proof that Jane Doe Two was born in 1990 or early 19991 could likely result in an acquittal because the jury's verdict is based upon the Defendants' cited conduct with Jane Doe Two in late April 2009 when Jane Doe Two could have been 19 years old or 18 years old. Such proof, if accepted by the jury, would likely cause an acquittal given the age requirement for a conviction under Section 1951(a).
For these reasons, the Court concludes that Defendants Yusuf and Kayachith's motions for a new trial should be granted. As discussed below, the Court reaches the same conclusion based upon the Government's violations of the Court's discovery Orders that were designed to eliminate the problems posed by the Government's belated disclosures.
In his oral and written motions to dismiss that also are based upon violations of the Court's discovery Orders (Docket Entry Nos. 2280 and 2296), Yusuf also contended that his counsel was unable to pursue these potential witnesses with exculpatory evidence given the Government's counsel's belated disclosures in violation of the Court's discovery Orders. As examples, Jane Doe Two's statements to Tennessee authorities about the Nashville trip in 2009 that the lead Assistant United States Attorney signed and the Weyker rough notes are statements of witnesses that qualify as Jencks materials and should have been produced 42 days prior to trial, as ordered by the Court. Yusuf also contends that these materials include Brady and Giglio materials.
On March 26, 2012, six days after commencement of jury voir dire and selection of a jury, counsel for the Defendant Abdirahman Abdirazak Hersi filed a motion to stay the proceedings, (Docket Entry No. 2108), citing the following recent disclosures of Jencks materials from the Government:
Id. at 3 (emphasis in the original).
Yusuf contends that based upon these late disclosures, his counsel's investigation and preparation was impeded because after trial, his counsel discovered exculpatory evidence for Yusuf about Jane Doe Two's actual age. As to specific nature and effects of these delayed disclosures, Yusuf contends, in sum:
A brief review of the record is necessary to provide context for the violations of the Court's discovery Orders. After extended proceedings on the Government's initial discovery production relating to the taping of privileged conversations and related issues, on May 10, 2011, the Court entered a discovery Order for the Government's pretrial disclosures of Brady, Giglio and the Jencks Act materials. The May 10th Order attached a prior Order of the Honorable Thomas A. Higgins, a distinguished Senior District Judge, in a complex criminal action with 34 defendants. United States v. Page, 2:00cr0016. The United States did not challenge Judge Higgins's Orders in that complex action. The Court deemed its Order to be based on well-established constitutional principles as well as the Department of Justice's 2010 policy on Brady obligations of federal prosecutors requiring "actual review" of documents in a criminal action. See Docket Entry No. 607, Court's Memorandum at 20, citing United States v. Salyer, 2010 WL 3036444, at *3 (E.D.Cal. Aug. 2, 2010).
At an earlier April 26, 2011 hearing on the government's discovery production, the Government's lead counsel stated that the Government had produced "all of the material in the case that we have." (Docket Entry No. 703 at 85). The Government's lead counsel also stated: "The only thing they [defense counsel] don't have is the grand jury material in this case." Id. Portions of at least two Defendants' grand jury testimonies were later produced or disclosed. (Docket Entry No. 775 at 8 and Docket Entry No. 504 at 3-4).
On May 24, 2011, the United States moved to stay the May 10th Order to consider issues raised by the Court's Orders. For several reasons, the Court denied the motion, but extended the time for compliance given that all recordings had not been transcribed. The Court explained:
(Docket Entry No. 964, Court's Memorandum at 6-7).
The United States later filed a position paper (Docket Entry No. 736) asserting its refusal to comply with the May 10th Order to produce transcripts of Defendants' recorded jail conversations as well as documents that qualify for disclosure under
Defendants Ahmad Ahmad and Abdullahi Hashi filed responses to the Government's position paper, citing Sixth Circuit precedents that authorize pretrial disclosures of Brady, Giglio and Jencks Act documents. (Docket Entry Nos. 746 and 752).
On June 24, 2011, the Court set a hearing on the Government's position paper and motion to reconsider because the Government's four page position paper contained citations and brief statements without any specificity or analysis. At the conclusion of that hearing, the Court announced its intention to file a draft Memorandum of authorities that supported its Order and invited counsel to show why those authorities did not support the Order. The United States filed its response with its original concerns and additional objections that were, in sum: (1) the Court lacks authority to enter these disclosure Orders tailored to each Defendant; (2) there was not any padding of discovery; (3) Brady and Giglio disclosures could not be required to be tailored to each Defendant; (4) Judge Higgins's prior Order is not precedent; (5) the United States did not have any "open file" for this action; (6) the United States has produced "obviously" Brady materials; (7) the discovery provided was labeled and organized; (8) the authorities cited by the Court in its Draft Memorandum are distinguishable; and (9) Minsky does not support a deadline for Rule 404(b) material (Docket Entry No. 775). Earlier, the United States agreed to provide Brady, Giglio, Jencks Act and Rule 404(b) materials "at least two weeks" prior to trial. (Docket Entry No. 703 at 103).
The Court set a hearing, and prior to the June 24, 2011 hearing, the Government revealed that its earlier estimate of 20,000 to 25,000 pages of discovery production was expected to exceed 35,000 pages of discovery materials to be produced by the Government. (Docket Entry No. 775 at 23, 25). At the June 24th hearing, the Government's counsel's response was again that "other than grand jury material statements and a few — with a few exceptions some other statements" the Government had produced "all the material the United States has," (Docket Entry No. 813 at 22), that included all Jencks material that was represented as produced in January and May of 2011. Id. At the June 24, 2011 conference on discovery issues, government counsel stated: "The Jencks material is the police reports." Id. at 69. There was an index to the 142 disks that the Government produced containing these materials. Id. at 52. At that hearing, several senior defense counsel with decades of experience in criminal defense in this Court described the Court's Order as in accord with Orders of other Judges of this Court. Id. at 72.
In a Memorandum and Order dated November 3, 2011, the Court affirmed its May 10, 2011 Order and again required all supplemental Jencks and Brady materials to be produced 42 days prior to the trial. (Docket Entry No. 964, Memorandum at
On January 6, 2012, the Court conducted a pretrial conference to discuss various issues for the upcoming March 20, 2012 trial. (Docket Entry No. 1028). Among the statements at that conference was the Government's counsel's statement that: "The Jencks material is actually out in the case." Id. at 14. On January 20, 2012, another pretrial conference was held in preparation for the February 6, 2012 exhibit conference for the Defendants' review of all Government trial exhibits and for deadlines on the time necessary for defense counsel to assess and file suppression motions. (Docket Entry No. 1286). After discussions with counsel, the Court set a deadline of February 21, 2012 and set suppression hearings for March 2, 2012, 2012 WL 683170. Id. at 7, 20.
Some defense counsel later contended that the Government's disclosures during trial included Brady, Giglio and Jencks materials. The Government's counsel's response was that with this voluminous discovery, he did the best he could on discovery production. Later, the Government argued that because Weyker was not a government witness, her 6,000 pages of rough notes are not Jencks materials subject to disclosure. Weyker was listed as a witness in the Government's list of trial witnesses. (Docket Entry No. 1864 at 9). Jane Doe Two's 2011 application to the Tennessee Crime Victim Fund that included a signed statement of the Government's lead counsel describing the April 2009 trip to Nashville, is also Jencks material. The juvenile records that were created and signed by Jane Doe Two very shortly after she and Defendants Kayachith and Yusuf were arrested in Nashville are Jencks material. These more than 6,000 additional documents are Jencks materials because as the Government's lead counsel stated at the June 24, 2011 conference on discovery issues that: "The Jencks material is the police reports". (Docket Entry No. 813 at 69). The late production of 6,000 documents is contrary to the prior representations of the Assistant United States Attorney in charge of discovery that the Defense counsel had been provided all Jencks materials
The Government's lead counsel's attempted to excuse this on the ground that Weyker was not a witness subject to the Jencks Act is erroneous. The Court's discovery Orders required a Jencks production based upon the list of Government witnesses. Jane Doe Two and Weyker were listed as witnesses in the Government's list of trial witnesses. (Docket Entry No. 1864 at 6, 9). Moreover, the bulk of these late disclosures are rough notes and messages of Weyker and other officers. For the lead agent in any criminal action, Local Criminal Rule 16.01(a)1g expressly requires the preservation of Weyker's rough notes and expressly imposes that responsibility on Government counsel. The failure to produce the lead agent's rough notes in this action is difficult to understand. Moreover, Local Criminal Rule 16.01(a)(2)a.1. expressly requires disclosure of any recorded statement of a defendant within 14 days from the defendant's arraignment. Here, the Government's noncompliance includes the March 24, 2012 production of Defendant Hersi's 2009 recorded statement.
For sanction for violations of discovery Orders in a criminal case, the Federal Rules of Criminal Procedure provides several options:
Fed.R.Crim.P. 16(d)(2)(A)-(D).
Here, continuances were granted, and the Defendants were given an opportunity to inspect these documents, some of which are cited as favorable to the defense. As to the prejudice from these belated disclosures, during trial, Defendant Yassin Yusuf filed a motion to dismiss for the Government's continuing violations of the Court's discovery Orders, citing the disclosures of Jane Doe Two's 2010 application for compensation from Tennessee authorities at trial for which the Government's lead counsel signed supporting papers in 2010. After trial, Defendant Yusuf filed a motion for a new trial (Docket Entry No. 2502) based upon newly discovered evidence that Jane Doe Two was born in 1990 that would render her an adult at the time of the 2009 acts for which Yusuf was found guilty. This proof was acquired as a result of the Government's belated disclosures. Given defense counsel's lack of prior review of these more than 6,000 pages of materials. The Court concludes that these defense contentions possess merit.
Aside from Rule 16(d)(2), the Court has the inherent authority to impose sanctions for violations of its Orders, including the appointment of counsel to investigate and pursue contempt sanctions, if warranted. Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 796, 799, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987). As the Supreme Court observed: "`If a party can make himself a judge of the validity of orders which have been issued, and by his own act of disobedience set them aside, then are the courts impotent, and what the Constitution now fittingly calls the judicial power of the United States would be a mere mockery.' As a result, `there could be no more important duty than to render such a decree as would serve to vindicate the jurisdiction and authority of courts to enforce orders and to punish acts of disobedience.'" Id. at 796, 107 S.Ct. 2124 (quoting Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 450, 31 S.Ct. 492, 55 L.Ed. 797 (1911) (internal quotation marks omitted)). The Supreme Court also explained that "[t]he underlying concern that gave rise to contempt power was not, however, merely the disruption of court proceedings. Rather, it was obedience to the orders of the Judiciary, regardless of whether such disobedience interfered with the conduct of the trial". Id. at 798, 107 S.Ct. 2124. In In re Smothers, 322 F.3d 438, 442 (6th Cir.2003), the Sixth Circuit observed that "this inherent power", "grants courts the flexibility to equitably tailor punishments that appropriately fit the conduct". Id.
Here, as a factual matter, whether the government's noncompliance with the Court's discovery Orders was the result of mere negligence or intentional is unclear. Brady disclosure obligations extend to government counsel, as reflected in the Supreme Court precedents cited in the Court's earlier ruling on the discovery Orders in this action. (Docket Entry No. 964, Memorandum 13-20). Local Criminal Rule 16.01(a)1g makes the rough notes of the agents in the case an express responsibility of government counsel. Here, the failure to produce the lead agent's rough notes is at best, most difficult to understand. Local Criminal Rule 16.01(a)(2)a.1 expressly requires disclosure of any recorded statement of a defendant within 14 days from the defendant's arraignment. Here, the noncompliance includes a 2009 recorded statement of Defendant Hersi that was not produced until after trial started. Further, on the eve of trial, Weyker's rough notes were produced, with
In this complex action, the Orders requiring early production of Jencks materials is based upon precedents and prior practice in this district as confirmed by prior Orders and the experiences of seasoned defense counsel, including a former federal prosecutor. The production of 6,000 documents shortly before and during trial, is contrary to the Government's lead counsel's prior representations to the Court that the defense counsel had been provided all Jencks materials. This is a federal, state and local prosecution with multiple agents. Yet, these discovery obligations involve primarily the government's lead agent.
As stated earlier, many of the documents at issue are from Minnesota police officers, including the Government's lead agent. These documents include critical documents that existed well before this action was filed. The casual and cavalier response from the Government's lead counsel who was responsible for discovery production, is disturbing. There was not any attempt to explain this extensive noncompliance with discovery Orders. Government's lead counsel's noncompliance poses significant case management issues for the Court in this and future complex criminal actions that would render Court's Orders a nullity.
To be sure, the Court earlier recognized that this is a complex action with ongoing developments and informed Government's counsel that if Jencks or Brady materials arose after the deadline for production, then with a showing of good cause, the Court would excuse noncompliance. (Docket Entry No. 813 at 30, 75-77). Here, the Government counsel did not make
This is complex action with 30 Defendants, with witnesses in multiple cities in four states as well as two foreign countries and with criminal acts over the period of a decade. Given the scope of the lead Government's counsel's violations of the Court's discovery Orders and Local Rules, the defense counsel were in the extremely untenable position of investigating their defenses as the trial proceeded. The prejudice of these delayed disclosures is reflected by Yusuf's motion for a new trial based upon proof recently acquired after trial about Jane Doe Two's birth in 1990 or early 1991 that cause Jane Doe Two to be 18 or 19 at the time of the Nashville trip in late April 2009. The Court considers unreasonable any expectation that defense counsel could have investigated and secured a witness in Africa or England for trial in this district within the time frame of the Government's belated disclosures during trial. This defense proof is material given that Jane Doe Two's age is an element of the offense. The delayed disclosures, effectively precluded securing such proof. Yusuf's counsel's discovery of
If the Court's discovery Orders had been honored, defense counsel would have had a reasonable opportunity to present this proof. Here, Jane Doe Two's proof of her age is based upon what her mother told her and what Jane Doe Two's mother listed as Jane Doe Two's date of birth in the mother's immigration papers. These immigration papers for Jane Doe Two's birth date that is the basis for other public records, such as school and juvenile records, are admittedly false. As to the Government's contention that Defendant Yusuf could have called Jane Doe Two's mother and questioned her about Jane Doe Two's date of birth in the immigration file, given Jane Doe Two's mother's history of false statements, defense counsel could make a reasonable tactical decision not to call her as a defense witness, particularly without witnesses Caalbi and Asha Mohamed. The statements of Asha Mohamed, Jane Doe Two's mother's cousin's statements is corroborated by Caabi. Asha Mohamed could prove that Jane Doe Two's birth date is in late 1990 or early 1991. In addition Asha Mohamed or Caabi could testify about Jane Doe Two's father separating from his wife in 1991, consistent with a birth date of Jane Doe Two in 1990. Either or both witnesses could prove that in 2009 Jane Doe Two was 19, not 16 years, as Jane Doe Two testified, and was not 13 or 14 in 2006 as alleged in the Second Superseding Indictment. The materiality of the Caabi affidavit is that this witness could establish Jane Doe Two's actual age, a material and necessary fact to convict Yusuf of sex trafficking a minor.
For these reasons, the Court concludes that Defendant's Yusuf's motion for a new trial be granted and also that a new trial be granted for Defendants Idris Fahra and Kayachith.
Of the pending motions, Defendant Kayachith's motion for a new trial includes claims that are not common with the other Defendants and must be addressed separately. In sum, Kayachith contends that: (1) that if a single conspiracy is proven, the Government's proof and argument about other co-defendants prejudiced Kayachith whose involvement was limited to April 2009; (2) that the jury instructions on venue were erroneous because all of the events of sex trafficking occurred in Minnesota; (3) that the Government was impermissibly allowed to introduce evidence of bad acts in its rebuttal examination of Hughes that was highly prejudicial to Kayachith; (4) the Government impermissibly expanded the definition of commercial sex trafficking in Section 1591(a) by introducing evidence of Jane Doe Two's consensual sexual acts with several of the Defendants; and (5) that the jury instruction on recklessness lessened the standard of criminal liability.
The Government responds, in essence: (1) that Kayachith drove Jane Doe Two and other Defendants to alleys in Minnesota to sell her for sex evincing his joining the conspiracy; (2) that Jane Doe Two testified that the Nashville trip was for commercial sex purposes, thus establishing this District as an appropriate venue for the part of the conspiracy; (3) that given the jury instruction and verdict on a single conspiracy and the Government's proof about Kayachith was not prejudiced by proof about his co-Defendants' acts; (4) that the testimony of other bad acts by Hughes was based upon the Government's theory of an exchange of value, namely
In his reply, Kayachith concedes that his motion for a new trial does not challenge the sufficiency of the Government's proof, but cites his unresolved motion for acquittal. After a ruling on that motion, Kayachith argues that he can file a second motion for a new trial and also cites his motion for acquittal as raising the sufficiency of the evidence claim. Kayachith also cites the interest of justice standard as applying to any claim that is not in his motion for a new trial.
As to the prejudicial spillover effect claim from the Government's proof of other co-Defendants' bad acts, this claim is interrelated to the multiple conspiracy claim addressed by the Court earlier and this claim is denied as moot. For his venue jury instruction claim, the proof was presented, and the jury found that the purpose of the Nashville trip was for sex trafficking of Jane Doe Two so as to render the venue instruction appropriate. United States v. Zidell, 323 F.3d 412, 422 (6th Cir.2003). For the Hughes' questioning on redirect by Government counsel about his allowing some of the Defendants to use his vehicle, this evidence was allowed on the basis of the Government's exchange of value theory, but Kayachith correctly argues that there was not any proof that gang members considered sex with Jane Doe Two to be of value and the jury acquitted all Defendants of the sex venture conspiracy count. Hughes's statement that the Defendants did not exploit Jane Doe Two for prostitution and were not traveling to Nashville for that purpose eliminates any prejudice to Kayachith from this limited bad act evidence. See United States v. Hardy, 228 F.3d 745, 750-51 (6th Cir.2000). For the proof of Jane Doe Two's voluntary acts, that evidence was on the Government's theory of control. The Defendants elicited testimony of Jane Doe Two's promiscuity and solicitation of sexual encounters for her personal pleasures. The Court concludes that this proof did not expand the scope of the commercial sex requirement of Section 1591(a). The Court's ruling does not preclude any state charges for these sexual assaults and rape.
For these reasons, the Court concludes that the Defendants' motions based upon proof of multiple conspiracies and the Government's violations of the Court's discovery Orders should be granted, but should otherwise be denied.
An appropriate Order is filed herewith.