The opinion of the court was delivered by: Judge Haynes
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.*fn1
The United States filed this action against thirty Defendants and in the Second Superseding Indictment, the Grand Jury charged the following offenses for which these defendants were tried and that are pertinent for the motions addressed in this Memorandum:
Count One - conspiracy to violate 18 U.S.C. § 1591(a)(1) in violation of 18 U.S.C. § 1594(c); for conspiracy to recruits, entices, harbors, transports, provided, obtains or maintains anyone under the age of 14 and under the age of 18 for commercial sex acts in violation of 18/1951(a)(1);
Count Two - conspiracy to violate 18 U.S.C. § 1591(a)(2) in violation of 18 U.S.C. § 1594(c) for conspiracy to benefit financially or by receiving anything of value, from participating in a venture which recruits, entices, harbors, transports, provides, obtains or maintains anyone under the age of 14 and under the age of 18 in violation of 18/1951(a)(2); Count Twelve - knowingly recruiting, enticing, harboring, transported provided and obtaining by any means a minor under the age of 14, Jane Doe Two, for commercial sex 18 U.S.C. § 2 and 1591(a).
Count Thirteen - knowingly recruiting, enticing, harboring, transported provided and obtaining by any means a minor under the age of fourteen, Jane Doe Two, by means of force, threats of force, fraud and coercion enticement and transport of a minor female Jane Doe Two who had not attained the age of 18 to engage in commercial sex in violation of 18 U.S.C. § 2 and 1591(a). (Docket Entry No. 591, Second Superseding Indictment at 3-25 and 36-38).
To provide context for the trial and issues in these motions, in earlier proceedings, the Court denied the Defendant Bashir Yasin Mohamud's motions for severance (Docket Entry Nos. 521 and 961), but Defendants Bashir Yasin Mohamud filed a second motion for a severance and other Defendants filed motions for a severance on various grounds. (Docket Entry Nos. 933, 1051, 1060, 1065, 1071, 1079, 1086, 1116 117 and 1307). The Court granted those motions in part and denied in part. (Docket Entry Nos.1394 and 1395). Pursuant to Fed. Crim. P 8(a), the Court severed Counts 15, 16, 17, 18, 19, 20, 22 through 24 from the March 20, 2012 trial of this action. (Docket Entry No.1395). Pursuant to Fed. R. Crim. P. 14, the Court also severed charges against Defendants Bashir Yasin Mohamud and Mustafa Ahmed Mohamed for a separate trial for those Defendants on Counts 15, 16, 17, 18, 19, 20, 22 through 24 that involved or were related to sex trafficking of adult females. Id.
In subsequent proceedings, based upon the legitimate request of Defendant Hamdi Ali Osman for new counsel, the Court severed all charges against Defendant Hamdi Ali Osman from the March 20, 2012 trial. The Court did so in the interests of justice to allow her new counsel to be appointed and to be prepared for trial. Based upon the similarity of the counts and to avoid repetition of witnesses, the Court also provided Defendants: Abdullahi Sade Afyare, Yasin Ahmed Farah, Muhiyadin Hussein Hassan, Abdifatah Sharif Omar, Liban Sharif Omar, Mohamed Sharif Omar, Haji Osman Salad and Bibi Ahmed Said, the option to be severed and tried with Defendant Hamdi Ali Osman in a joint trial. All of these latter Defendants filed notices of their elections to be severed from the March 20, 2012 trial. (Docket Entry Nos. 1632, 1633, 1636, 1647, 1648, 1656 and 1670).
Jury selection commenced on Tuesday, March 20, 2012 and a jury was empaneled on March 22, 2012, but the Court granted several defense counsel's motions for a stay or continuance of the trial. (Docket Entry No. 2133). These defense counsel cited the Government's recent disclosures of more than 6000 pages of documents, including the lead agent's rough notes, other police officers' emails and recorded 2009 interview of Defendant Hersi. These disclosures were made during jury selection on March 23, 2012. The Court continued the trial for one (1) week to April 2, 2012 to enable defense counsel to review those voluminous discovery materials. At a March 29, 2012 status conference, Defendant Abdullah Hashi requested a second continuance because some of the rough notes in these belated discovery materials were in redacted format and unreadable. (Docket Entry No. 2177). The Court granted that motion and set a hearing on whether the Government's proof could establish that the Defendants Abdullah Hashi, Abdirahman Hersi and Hassan Ahmed Dahir were 18 years of age at the time of their alleged offenses. After the latter hearings, the Court concluded that the Government's proof of these Defendants' ages at the time of their offenses was insufficient to establish the Court's jurisdiction and that under United States v. Chambers, 944 F.2d 949, 957 (6th Cir. 1991) these Defendants were governed by the Juvenile Delinquency Act. (Docket Entry No. 2554). The Court granted the Government's motion for a mistrial without prejudice. Id. Trial for the remaining Defendants resumed on April 4, 2012. (Docket Entry Nos. 2210 and 2258).
After proof and argument concluded on April 30, 2012, the jury deliberated five days before returning a verdict of acquittals of Defendants: Ahmad Abnulnasir Ahmed, Musse Ahmed Ali, Fadumo Mohamed Farah, Dahir Nor Ibrahim, and Mohamed Ahmed Amalle on Counts One and Two; and Defendants Fatah Haji Hashi and Mohamed Ahmed Amalle on Counts One, Two, Twelve and Thirteen. The jury found Defendant Idris Ibrahim Fahra guilty on Counts One and Twelve, but not guilty on Counts Two and Thirteen. The jury found Defendants Andrew Kayachith and Yassin Abdirahman Yusuf guilty on Count One, but not guilty on Counts Two, Twelve and Thirteen. In sum, only three defendants Idris Ibrahim Farah, Andrew Kayachith and Yassin Abdirahman Yusuf were found guilty on Count One and only defendant Idris Ibrahim Fahra was found guilty on Count Twelve.
Before the Court are the following oral and written motions that were made during trial, orally at the close of the Government's and defense's proof and after the jury's verdict:
(1) Idris Fahra's, Andrew Kayachith's and Yassin Yusuf's oral motions for acquittal at the close of the Government's proof and renewed at the conclusion of all proof that the Court reserved under Fed. R. Crim. P. 29 (b);
(2)Yassin Yusuf's motion to dismiss (Docket Entry No. 2280);
(3) Yassin Yusuf's motion to dismiss (Docket Entry No. 2296); (4) Andrew Kayachith's motion to dismiss (Docket Entry No. 2392) that Defendant Yusuf joined;
(5) Yassin Yusuf's motion for a new trial (Docket Entry No. 2502);
(6) Yassin Yusuf's motion for judgment notwithstanding the verdict /renewed motion for acquittal (Docket Entry No. 2507); and
(7) Defendant Kayachith's motion for a new trial (Docket Entry No. 2617) that Defendant Yusuf joined. (Docket Entry No. 2618).
The Government has filed its responses, supplemental responses and a surreply. (Docket Entry Nos. 2396, 2552, 2577, 2694 and 2709). The Court will group these motions based upon the common claims and issues presented.
A. Defendants' Oral Motions for Acquittal, Defendant Kayachith's and Yusuf's Motions to Dismiss and Yusuf's Motions for Acquittal and for a New Trial*fn2 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 any variance between Jane Doe Two's pretrial statements, her grand jury testimony and her trial testimony are credibility issues for the jury; that Jane Doe Two's testimony alone is sufficient to prove her age; that proof of Jane Doe's age is corroborated by other proof; that proof a defendant knew the victim's age is not required under 18 U.S.C. § 1591(c); that the existence of a single or multiple conspiracy is a factual issue for the jury; and that the Defendants Mohamed Sharif Omar and Liban Sharif Omar provide the common factual basis for the Government's single conspiracy theory.
1. Sufficiency of the Evidence Claims--Age
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*fn3 .
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*fn4 . (Docket Entry No. 2465, Witness/Exhibit List, Defendant 29 Exhibit 8, at 4). Defendant Yusuf also cites Jane Doe Two's sworn statement filed with Tennessee authorities that she was "abducted" to Tennessee (Docket Entry No. 2465, Witness/Exhibit List, Defendant 29 Exhibit 1, at 4) that is at complete variance to Jane Doe Two's written and oral statements to Nashville police officers and a St. Paul Police officer, shortly after she was taken into custody in Nashville.
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*fn5 "is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Alvarez, 266 F.3d 587, 596 (6th Cir.2001). In reviewing a motion for acquittal, the Court draws "'all available inferences and resolve[s] all issues of credibility in favor of the jury's verdict.'" Id. (quoting United States v. Salgado, 250 F.3d 438, 446 (6th Cir. 2001)); United States v. Maliszewski, 161 F.3d 992, 1006 (6th Cir.1998). Review of the sufficiency of the evidence is "quite limited." United States v. Crossley, 224 F.3d 847, 855 (6th Cir.2000).
Where the age of a witness is a critical issue in a criminal case, expert testimony may be necessary*fn6 , 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). Here, the Government's proof of Jane Doe Two's age at trial does not contain any documentary evidence or family proof of Jane Doe Two's birth date. The principal source of Jane Doe Two's age is the testimony of Jane Doe Two that is admissible. Fed. R. Evid. 804(b)(4)(A). Yet, Jane Doe Two's testimony about her age is based upon false information from Jane Doe Two's mother. As discussed infra, these Defendants raise serious issues about the credibility of Jane Doe Two's testimony, but the Government's other proof on Jane Doe Two's age was from lay witnesses, schoolmates and school photographs. Lay testimony is admissible and could provide the jury a basis to find that at the times at issue, Jane Doe Two was under the age of 18. Based upon the principles applicable to the consideration of motions for acquittal, the Court concludes that Defendants' motions for acquittal on the age element should be denied.
2. Proof of Defendants Joining a Conspiracy
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 was not any proof that Kayachith participated in this conversation. Jane Doe 2 then testified that throughout that day, Kayachith, "AK", drove her and others to alleys in Minneapolis looking and calling people about sex with Jane Doe Two for money. During this time, Jane Doe Two testified that she engaged in sex with ten people in which cash money was collected by Haji Salad. Jane Doe Two's book bag was found in the trunk of Kayachith's automobile. On the morning of April 26, 2009, Jane Doe Two had sex with Biggie without anything of value exchanged, but Kayachith was present at the garage where the sex act occurred. On the morning of April 26, 2009, Jane Doe 2 testified that Abdullahi Afyare contacted a person named "AZ" as a potential purchaser of sex acts. Kayachith was present. On April 27 through April 28, 2009, Kayachith is one of five persons who travel in an automobile from Minnesota to Nashville, Tennessee with Jane Doe Two who testified that this travel was to sexually exploit her.
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. Jane Doe Two testified that Kayachith drove Jane Doe Two and other Defendants to various sites in Minneapolis to sell her for sex. The jury credited her testimony about the commercial nature of the sex at Fahra's apartment, in the alleys in Minneapolis and the nature and purpose of the Rochester, Minnesota and Nashville trips. Based upon this proof, the jury found these Defendants guilty on Count One. Given the principles applicable to motions for acquittal, Court concludes that the jury found that the Government proved that Defendants Yusuf and Kayachith knew of and agreed to join a conspiracy to traffick Jane Doe Two who was under the age of 18, for commercial sex. The issue of the existence of a single conspiracy or multiple conspiracies is a distinct issue and is addressed separately infra.
B. False Testimony Claims
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*fn7 . For context, the immigration records reflect that Ibrahim Mohamed Hassan, Jane Doe Two's biological father, arrived in the United States in August 1993 that renders Jane Doe Two's September 10, 1996 birth date false. As discussed below, in 2009 Jane Doe Two also knew who her real father was and knew that the deceased person whom she testified about at trial was her father, in fact, was not her father. Jane Doe Two's mother provided a false birth certificate to the Tennessee authorities for Jane Doe Two's application for monetary benefit arising out of her travel to Nashville (Docket Entry No. 2465, Witness/Exhibit List, Defendant 29 Exhibit 15, at 11). Almost a year prior to trial, lead Government counsel knew that Jane Doe's birth certificate was false.
2. Jane Doe Two's "Abduction" Statement
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 Jane Doe Two was taken into police custody in Nashville for juvenile detention and was away from the Defendants, Metropolitan Nashville Davidson County police officers interviewed Jane Doe Two. In a recorded interview, the Metro police officers instructed Jane Doe Two to tell them the truth about her presence in Nashville. ((Docket Entry No. 2465, Witness/Exhibit List, Defendant 17, Exhibit 5, at 4). In this interview and in a contemporaneous handwritten statement for the officers, Jane Doe Two stated that she left her high school to be with her boyfriend; had sex with multiple persons because she became angry with her boy friend; and traveled to Nashville with the Defendants in the vehicle to steal automobile parts for the Lincoln vehicle in which she and several other Defendants were passengers. (Docket Entry No. 2465, Witness/Exhibit List, Defendant 17, Exhibit 2, at 4).
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.*fn8
3. Jane Doe Two's Material Omissions
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 contends that Jane Doe Two's trial testimony directly contradicts her testimony before the Grand Jury on October 7, 2009 about sex in the alley that was as follows:
Q: Did anything happen to your phone on Saturday?
A: No. I found out that Hollywood and them had it later during the day. So we get up, went to go get some toothbrush and mouthwash and then we was driving around in alleys and smoking and meeting up with guys, having sex in cars.
Q. Were any of these guys paying for the sex?
A: Because they were their friends. They would not let their friends pay, they were homies. (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.*fn9 Of these rough notes, only one page contains Weyker's quoted references about Jane Doe Two's statements: "find guys to have sex for money." (Docket Entry No. 2396-1). As to the Nashville trip, this page of the Weyker rough notes reflects: "Have sex w/guys in TN-she is going to 'be on a money mission'"; "Purpose of her going is to TN is too have sex"; "in car going to TN talked about [Jane Doe Two] mtg guys for sex & $. They ask her." Id. A second undated rough note reads, in pertinent part: "They leave and go different places and she has sex with a number of different guys. [scratched out ] Alleys had sex in alleys w/different guys." (Docket Entry No. 2396-2). In these statements attributed to Jane Doe Two, Jane Doe Two never actually states that she observed any actual exchange of money for sex with her.
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 (1959), Rosencrantz v. Lafler, 568 F.3d 577 (6th Cir. 1989), 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, 383 U.S. 293, 311 (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 Court shares the Defendants' concerns that Jane Doe Two's trial testimony is not simply a contradiction with prior statements, but are material omissions about critical facts that if true, one would expect to have been presented to the grand jury. Yet, these facts about Jane Doe Two seeing money exchanged for sex with her were not presented to the grand jury and the lead agent's notes were not produced until after trial started. Yet, these omissions were presented to the jury and notwithstanding these materials omissions, by its verdicts, the jury still found that these Defendants sexually trafficked Jane Doe Two, as a minor. The above-cited case law recognizes that a finding of perjury does not arise because a witness provides material testimony for the first time at trial and testifies differently from the witness's grand jury testimony. The agent's abbreviated quotes of Jane Doe Two about sex for money lend some credence to Jane Doe Two's trial testimony. On the material omissions claims, the Court concludes that under Rosencrantz, the Defendants have raised serious issues of credibility, but have not shown Jane Doe's testimony to be "indisputably false" that is necessary to grant the Defendants' motions for acquittal on these claims.
C. Multiple Conspiracies Claims
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 Nashville. Liban rented a room to further the sex trafficking of [Jane Doe Two]. Yusuf was one of the Defendants who brought [Jane Doe Two] from Minnesota to Nashville for the purpose of sex trafficking. Defendant [Yusuf] has made no argument or submitted any proof that he has ever withdrawn from a conspiracy. Thus, there is enough evidence to support a finding that a single conspiracy existed and Defendant's claim should be denied." (Docket Entry No. 2577 at 9). In opposition to Defendant Kayachith's motion for new trial on this multiple conspiracies contention, (Docket Entry No. 2854), the Government cites 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 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:
Count One did combine, conspire, confederate and agree with each other and others known and unknown to the Grand Jury, to recruit, entice, harbor, transport, provide, obtain, and maintain by any means a person knowing and in reckless disregard of the fact that the person had not attained the age of 14 years and had not attained the age of 18 years and would be caused to engage in a commercial sex act, and knowing and in reckless disregard of the fact that the person had not attained the age of 18 years and that means of force or fraud or a combination of such means would be used to cause a person to engage in a commercial sex act in violation of Title 18, United States Code, Section 1591(a)(1).
Count Two did combine, conspire, confederate and agree with each other and others known and unknown to the Grand Jury, to benefit financially and by receiving anything of value, from participation in a venture which engaged in an act of recruiting, enticing, harboring, transporting, providing, obtaining, and maintaining by any means a person knowing and in reckless disregard of the fact that the person had not attained the age of 14 years and had not attained the age of 18 years would be caused to engage in a commercial sex act and knowing and in reckless disregard of the fact that the person had attained the age of 18 years and that means of force or fraud or a combination of such means would be used to cause a person to engage in a commercial sex act in violation of Title 18, United States Code, Section 1591(a)(2). (Docket Entry No. 591, Second Superseding Indictment at 7-8, 24). The second conspiracy count charged a conspiracy to participate in a "venture" to benefit from the sexual trafficking of minor females. As to Count Two, according to the Government's lead counsel: "It's the same acts that make up the conspiracies." (Docket Entry No. 2645, Transcript at p. 2623). As stated earlier, the 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 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 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 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.
Mohamed: What did I tell you that day? Didn't I tell you to leave, ...