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United States v. Farah

United States Court of Appeals, Sixth Circuit

September 11, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
ABDULLAHI FARAH, Defendant-Appellant

Argued May 7, 2014

Page 600

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 3:12-cr-00196-1--Kevin H. Sharp, District Judge.

ARGUED:

James Mackler, BONE MCALLESTER NORTON PLLC, Nashville, Tennessee, for Appellant.

Van S. Vincent, UNITED STATES ATTORNEY'S OFFICE, Nashville, Tennessee, for Appellee.

ON BRIEF:

James Mackler, BONE MCALLESTER NORTON PLLC, Nashville, Tennessee, for Appellant.

Van S. Vincent, UNITED STATES ATTORNEY'S OFFICE, Nashville, Tennessee, for Appellee.

Before: COLE, Chief Judge; MOORE, Circuit Judge; DRAIN, District Judge.[*] DRAIN, D.J., delivered the opinion of the court, in which COLE, C.J., joined, and MOORE, J., joined in part.

OPINION

Page 601

GERSHWIN A. DRAIN, District Judge.

I.

Defendant Abdullahi Farah was convicted after a two-day jury trial of violating 18 U.S.C. § 401(3), for willfully disobeying an order requiring his testimony by deposition for use in a separate criminal prosecution and for violating 18 U.S.C. § 1591(d), which prohibits the obstruction, or the attempt to obstruct the enforcement of § 1591(a), a child sex trafficking statute. Farah's conviction stems from his refusal to testify in the ongoing criminal prosecution of thirty gang members of Somalian descent charged in the United States District Court for the Middle District of Tennessee with several conspiracies including sex trafficking of minors, interstate transportation of stolen goods and other offenses.[1]

Because we conclude Farah's conviction for violating 18 U.S.C. § 401(3) violates the Double Jeopardy Clause and the rule announced in Yates v. United States, 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95 (1957), we VACATE his judgment of conviction on that count. However, Farah's Double Jeopardy rights were only violated in part because he was also convicted of obstructing or attempting to obstruct the child sex trafficking laws, thus his conviction on that count passes the " same elements" test announced in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). We further find that none of Farah's remaining claims challenging his conviction for violating 18 U.S.C. § 1591(d) have merit, thus his judgment of conviction as to that count is AFFIRMED.

II.

Farah has been a member of the Somali Outlaws gang for nearly a decade, although during the course of the proceedings below, he has since renounced his membership and affiliation with the gang. In 2010, while detained in immigration custody

Page 602

in Ramsey County, Minnesota,[2] Farah was approached by the Government about an incident occurring in Nashville. Farah ultimately agreed to offer his assistance with respect to the Government's investigation. Farah believed that in exchange for his cooperation he would receive immunity from prosecution, reversal of the revocation of his work permit, help obtaining his citizenship and release from custody.

Farah was granted transactional immunity and testified before the grand jury on three separate occasions. He also assisted with the identification of gang members and provided reliable information concerning the locations of many of the Adan defendants at the time the Government filed the charges and brought the Adan defendants into custody in the fall of 2010.

Farah claims that after the Adan indictment was filed, other gang members in the community began to suspect that he was supplying information to the Government because he was not indicted. He claims he was assaulted twice during the latter half of 2011. The first time he claims he was pistol whipped and beaten by four masked men near his home. The men threatened to kill him and harm his family. While Farah was in constant contact with Government agents during this time, when questioned by an agent about a cut above his eye resulting from the purported assault, Farah claimed he obtained the injury while playing basketball. He also claims he was assaulted right before the Christmas holiday that same year.

The Adan case was severed into separate trials by the trial court, with the first trial commencing in March of 2012. Farah was arrested on a material witness warrant a month before the commencement of the trial. A detention hearing was held before a magistrate judge who determined that there were no conditions or combination of conditions that could reasonably assure Farah's appearance and ordered his detention as a material witness in the Adan case. The district judge presiding over the Adan case recused himself from all material witness proceedings dealing with Farah and a separate case was opened.[3]

On April 18, 2012, Farah made his appearance before a district judge based on the Government's " motion for a hearing related to witness's refusal to testify." The Government indicated that it had reached the point in the Adan trial for Farah's testimony and his " anticipated testimony would relate to the sex trafficking of [the] individual known as Jane Doe 2, as well as relating to information known about the venture, which is a requirement under 18 U.S.C. § 1591(a)(2) . . . [h]e would also have the information about . . . identifying particular defendants' voices. And that's it in a nutshell, Your Honor, as to materiality." Farah, who was represented by counsel at the hearing, informed the district judge that he refused to testify.

EXAMINATION BY THE COURT:

Q: Mr. Farah, the government has filed a motion asking me to compel you to testify in the Adan case that is being tried before Judge Haynes down the hall. I first want to establish whether you are willing to testify in that case. Are you willing to testify in that case?
A. No, Your Honor.

Page 603

Farah explained to the Court that he was refusing to testify because: " I was coercion and I was pressured to testify from the beginning. It wasn't my choice. I was either threatened to go to jail or be indicted upon the case or either testify." Farah claimed the Government had lied to him and his safety was in jeopardy, however he failed to inform the court that he was twice assaulted by gang members and his family had been threatened in the preceding year.

The district judge concluded that Farah failed to establish just cause for his refusal to testify, ordered him to testify for the prosecution in the ongoing Adan trial, and found him in civil contempt. He also ordered Farah's detention for the remainder of the trial unless Farah purged himself of the contempt by testifying. The next day, another hearing was held to determine whether Farah would testify, but Farah indicated that his position had not changed. The district judge reserved consideration of the Government's oral request to find Farah in criminal contempt until the conclusion of the trial, and again informed Farah that the civil contempt could be purged upon his decision to testify. Upon the conclusion of the trial in Adan,[4] the district judge set a trial date for the Government's motion to hold Farah in criminal contempt.

A June 2012 bench trial was held and Farah was found guilty of criminal contempt. At the trial, Farah testified about the two assaults in 2011, however the district judge had serious doubts about his credibility particularly in light of his conduct just prior to his arrest. The district judge concluded that:

[T]he Court clearly ordered the defendant to testify. It was an ongoing trial. He was to be called as a witness on the day that we had the initial hearing, the 18th of April. And the defendant was clearly ordered to testify, and he refused. So he had the benefit of a clear and definite order, and he knew of the order.

Sentencing was held on July 3, 2012. The district judge began by noting that the statutory maximum for criminal contempt was six-months imprisonment, but ultimately determined the statutory maximum was " not called for" under the circumstances because:

[I]f Mr. Farah repeats his conduct of failing to testify in legal proceedings, the Court wants to have the flexibility to impose a graduated sentence, meaning for there to be additional possibility of more punishment if we are simply here in a few months doing this same proceeding.

Farah's counsel lodged an objection to this portion of the district judge's ruling:

[I]t appears the Court is at least considering the possibility that if Mr. Farah was charged with and tried for an additional contempt charge for refusing to testify, he could be again convicted. It is now and will be my position that that would be double jeopardy. Mr. Farah has said he will not testify against the gang members. And the fact that the government has divided

Page 604

this case into multiple cases[5] doesn't change the fact that he has committed one act of contempt and that is the only act of contempt. He should not be held in multiple contempts because of the government's decision to bifurcate the trials. I am making that objection now because I raised it earlier.

While Farah was serving his four month sentence, his attorney filed a motion for review of the order detaining him as a material witness requesting that Farah be released after the conclusion of his sentence for criminal contempt, or in early October 2012, because further detention at that point implicated constitutional considerations because none of the remaining trials had been set in the Adan case. A hearing was held before the district judge on August 23, 2012.

At the hearing, the district judge began by stating the procedural posture of the case:

Farah[] has filed a motion for the review of the detention order of the magistrate judge, . . . Docket Number 19 entered on May 16, 2012. It in turn relies on the detention order in Case Number 12-2029. And just to try to keep things clear, the detention order in the Case 3:12-85 was a detention for Mr. Farah as a defendant in the criminal case dealing with criminal contempt. But that order relies on the reasons stated for detaining Mr. Farah in Case Number 12-2029 as a material witness. So it is all interrelated.

Defense counsel argued that once Farah served the remaining term of his sentence for criminal contempt, he should be released because continued confinement as a material witness was unjust under the circumstances:

[O]nce he serves his remaining two months [he] will be arguably being held in detention with no trial date set, no idea when trial dates will be set, and no idea how many trials he will be asked to testify in, which could potentially go on for years. This is all in light of the fact that he's already told this Court and is suffering the consequences of it that he will not testify against the Somali gang, meaning he won't be providing testimony in any of those upcoming trials.

The district judge inquired if a deposition could be taken pursuant to 18 U.S.C. § 3144. Defense counsel responded that, while he raised the subject of a deposition in his motion, he inartfully did so and meant to argue that such an endeavor would be futile because Farah would not change his stance regarding testifying in the Adan matter. The Government requested that Farah's testimony by deposition be ordered by the court, however neither the Government nor the district judge addressed the requirements for ordering a deposition pursuant to 18 U.S.C. § 3144. The district judge took the matter under advisement and later granted the request in an August 23, 2012 summary order.

The deposition was held at the courthouse on September 12, 2012, and the Adan defendants, and their counsel, were either present or waived their presence. At the deposition, the Government began by stating the purpose of the deposition was for use " at trial in relation to the matter of United States v. Adan 3:10-00260." The Government proceeded to ask Farah if he would answer questions

Page 605

regarding issues involved in the remaining trials for which the Government sought his testimony. Farah persisted in his refusal and indicated he would not testify in any of the trials.[6]

After the deposition, the Government moved to hold Farah in civil contempt based on his refusal to testify at the deposition. The district judge denied the Government's motion, finding in relevant part:

The Court concludes that holding Mr. Farah in civil contempt at this stage of the proceedings is not appropriate. The Court ordered the deposition of Mr. Farah in order to secure his testimony and eliminate the need for his appearance as a witness at future trials in the Adan case. Mr. Farah's refusal to testify at the deposition is tantamount to refusing to testify at each of the upcoming trials. Therefore, Mr. Farah no longer needs an opportunity to purge himself of the contempt, as is contemplated by the imposition of civil contempt. Instead, the Government may seek to charge Mr. Farah with criminal contempt for his refusal to testify at the deposition, or alternatively, may seek to have the grand jury issue an indictment for obstruction of justice or other appropriate charges.

On October 3, 2012, the Government filed the three-count indictment giving rise to the instant action.[7] Count One of the indictment charged Farah with violation of 18 U.S.C. § 401(1) for " willfully and knowingly misbehav[ing] in the presence of the [district judge]. . . or so near thereto as to obstruct the administration of justice in" both Farah [3:12-85] and the Adan actions by refusing to testify at the deposition. Count Two charged Farah with " willfully and knowingly disobey[ing] and resist[ing]" the August 2012 order issued in the cases of Farah [3:12-85] and Adan by refusing to testify. Lastly, Farah was charged with violating 18 U.S.C. § 1591(d), which punishes interference with the enforcement of child sex trafficking laws.

The district judge presiding over Farah's material witness and contempt proceedings entered an order of recusal because he was mentioned in the body of the indictment and the matter was assigned to a different district judge. Thereafter, Farah filed a motion to dismiss arguing that the indictment violated the constitutional prohibition against double jeopardy, among other things. The district judge denied this motion, as well as Farah's motion to compel discovery related to Somali gangs and witness retaliation and his motion to permit the use of an expert on street ...


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