Opinion
NO. 3:10-000260
03-07-2012
UNITED STATES OF AMERICA v. ABDIFATAH JAMA ADAN et al.
Respectfully submitted, JERRY E. MARTIN UNITED STATES ATTORNEY Van S. Vincent Assistant United States Attorney
JUDGE HAYNES
VICTIMS' MOTION FOR JOINDER OF DEFENDANTS TO AVOID UNREASONABLE
DELAY AND TO PROTECT THE DIGNITY AND PRIVACY OF THE VICTIMS
Pursuant to the Victim Rights Act, Title 18, United States Code, Section 3771(d)(1), the United States of America, by and through the undersigned, files the instant motion on behalf of the victims in the instant action. JD1;JD2; SB, the mother of JD2; JD3; JR, the mother of JD3; and JD5, who is not listed in any overt act of the indictment, (collectively "the victims") respectfully ask this Court to avoid making them testify more than once. More specifically, the United States, on behalf of the victims, states the following:
Title 18, United States Code, Section 3771(a), sets for the rights of victims, in relevant part as follows:
(a) Rights of crime victims.--A crime victim has the following rights:
(7) The right to proceedings free from unreasonable delay.
(8) The right to be treated with fairness and with respect for the victim's dignity and privacy.
Title 18, United States Code, Section 3771(d)(3) sets forth the procedure by which a Government Attorney can bring a motion on behalf of the victims as follows:
(3) Motion for relief and writ of mandamus.--The rights described in subsection (a) shall be asserted in the district court in which a defendant is being prosecuted for the crime or . . . . The district court shall take up and decide any motion asserting a victim's right forthwith. If the district court denies the relief sought, the movant may petition the court of appeals for a writ of mandamus. The court of appeals may issue the writ on the order of a single judge pursuant to circuit rule or the Federal Rules of Appellate Procedure. The court of appeals shall take up and decide such application forthwith within 72 hours after the petition has been filed. In no event shall proceedings be stayed or subject to a continuance of more than five days for purposes of enforcing this chapter. If the court of appeals denies the relief sought, the reasons for the denial shall be clearly stated on the record in a written opinion.
Here, the victims have been subjected to horrific acts. The retelling of these acts requires each victim to relive the horrors that they have suffered again and again. Each witness will have to relive the intimate details of their sexual exploitation before the Defendants and the public at trial. Each victim will be subjected to rigorous cross-examination in every trial. No Defendant has accepted a plea offer. No Defendant charged with sexual trafficking and/or a related count has expressed any willingness to accept a plea. Requiring the victims to retell their story in access of two times violates the victims' right to be free of unreasonable delay and to be treated with fairness and with respect for the victims' dignity and privacy.
To avoid a violation of the victims' rights, the victims seek one sexual trafficking trial which would include all sexual trafficking counts and all counts related to sexual trafficking, including obstruction and force, fraud sexual trafficking. The victims would prefer to have one sexual trafficking trial on March 20, 2012; however, the victims understand the need to appoint new counsel for Defendant Hamdi Osman. The victims would understand having one sexual trafficking trial on March 12, 2012, without Osman. In the alternative, the victims will accept one sexual trafficking trial reasonably delayed to accommodate new counsel for Osman, in which all sexual trafficking counts, including those involving Osman, would be tried. What is paramount to the victims is that they have one proceeding in which the charges relating them are resolved and that they are not made to describe very intimate and horrific actions perpetrated upon them by the defendants. This will avoid multiple testimonies from the victims.
Based upon the Court's Orders of severance, there will be at least four, and possibly seven, trials related to sexual trafficking, in which the victims will have to testify, as follows:
A. 15 defendants proceeding to trial on March 20, 2012. The Counts to be tried at that time are Counts One, Two, Eleven, Twelve, and Thirteen. JD1, JD2, JD3; JD4 and JD5 and SB will be involved in testifying in this trial;
B. Docket Entry No. 1575 results in a second trial, in which 11 defendants will proceed to trial (this number includes defendant [25] Osman). At that trial Counts One, Two, Three, Four, Five, Six, Seven, Eight, Nine, Ten, Eleven, Twelve, Thirteen, and Fourteen will be at issue. JD1, JD2, JD3; JD4 and JD5 and SB will be involved in testifying in this trial;
C. Docket Entry No. 1395 results in a third trial in which 2 defendants, number [19] Mohamud and [20] will be judged. JD1, JD2, JD3; JD4 and JD5 and SB will be involved in testifying in this trial; and
D. Docket Entry No. 1395 as to Counts 22 - 24, which pertains to defendants [1] Adan, [8] Farah, and [15] Dahir Lucky. From the Order severing these counts it is not apparent whether the Court will have the trial on these three Counts simultaneously or individually. If individually this will result in a total of 7 trials. JD1, and JD5 will be involved in testifying at these trials.
Severing the Counts and Defendants in the above-referenced manner delays the proceedings unreasonably. Counts 3-14, and 20 - 24, are all based upon the activity to be proved in Counts One and Two of the Indictment. Fed. R. Crim P. 8(a) provides that an indictment may charge a defendant in separate counts with 2 or more offenses if the offenses charged are of the same or similar transaction or are connected with or constitute parts of a common scheme or plan.
In the present case, the United States asserts, on behalf of the victims, that Counts One through Fourteen and Twenty through Twenty One are connected with or constitute parts of a common scheme or plan. Counts One, Two, Eleven, Twelve, Thirteen, and Fourteen all involve the allegation of sex trafficking. Counts Three and Four are obstruction charges in which the object of obstruction was the sex trafficking offenses. The activity contained in Counts Three and Four also constitute an act in furtherance of the conspiracy to sex traffic as charged in Counts One and Two.
Counts Five through Nine all relate to perjury and obstruction before the Grand Jury. The obstruction and perjury related to the violations contained in Counts One, Two, Eleven, Twelve and Thirteen of the Indictment. This obstruction and perjury occurred before the Grand Jury during the investigation of the case.
Counts Twenty and Twenty-One relate to obstruction of justice. This obstruction was to cover up acts constituting Counts One and Two of the Indictment and relate to defendant [27] Said instructing JD4 to lie before the Grand Jury regarding JD4's knowledge of incidents contained in Counts One and Two of the Indictment.
Counts Twenty-Two through Twenty-Four charge false statements to a government agency. Each of these Counts allege that one of the false statements to the government agency were statements that the individual had not procured any person for prostitution in the past 10 years and had no plans to do so in the future. To prove the false statement, the United States will have to establish that the defendants procured one or more persons for prostitution. This false statement is based upon the acts contained in Counts One, Two, and Eleven of the Indictment. These Counts are clearly connected with or constitute parts of a common scheme or plan.
Joinder of the defendants is proper under Federal Rule Crim. P. 8 (b) as Counts One -Fourteen, Twenty - Twenty Four are based upon the same series of acts or transactions constituting an offense or offenses. Rule 8(b) does not require that all defendants be charged in each count of the Indictment. The rule specifically provides that defendants may be charged in one or more counts together or separately.
Defendants [19] Mohamud and [20] Mohamed are not prejudiced by joinder with the other defendants under Rule 14 for the reasons set forth in the United States motion to reconsider. (DE 1582).
The victims' dignity and privacy are not treated with fairness as required in Title 18 U.S.C. § 3771(a)(8) by multiple trials in which the same testimony will be presented. Based upon the severances, the victims are required to testify multiple times regarding very intimate and traumatic events. The repetitive trials will subject the victims to public scrutiny on multiple occasions, whereas the defendants ironically do not suffer the same fate.
JD2, SB, and JD5 have requested that the Court review their attached affidavits. The pictures referred to in SB's affidavit have been provided to all counsel in this matter as United States Trial Exhibits 95, 95-A, 96 and 97. The United States will file an un-redacted copy of the aforementioned statements (the only portion redacted is the name of the person filing the statement) under separate cover with the photos that are United States Trial Exhibits 95, 95-A, and 96. A copy of the exhibits filed under seal will be mailed to defense counsel.
The victims of this crime appreciate the Court's indulgence in considering this motion. As stated previously, of paramount interest to the victims is that the counts in which they are most involved be resolved simultaneously and that they not be required to appear on multiple occasions to testify regarding very intimate acts. Testifying on one occasion will serve to protect their privacy and dignity in a manner that meets the needs of justice and the victims' needs.
Respectfully, the victims request the following:
1. That the Court reconsider and vacate its Order DE 1575 as such order pertains to defendants [2] Abdullahi Sade Afayre, [10] Yasin Ahmed Farah, [14] Muhiyadin Hussein Hassan, [19] Bashir Yasin Mohamud a/k/a BR, [20] Mustafa Ahmed Mohamed, [22] Abdifatah Sharif Omar, [23] Liban sharifOmar, [24] Mohamed SharifOmar; [26] Haji Osman Salad, and [27] Bibi Ahmed Said and that the court set the foregoing defendants for trial on March 20, 2012, with defendants [1] Abdifatah Jama Adan, [3]Ahmad Abdulnasir Ahmad, [6] Musse Ahmed Ali, [7] Hassan Ahmed Dahir, [8] Faduma Mohamed Farah; [9] Idris Ibrahim Fahra, [11] Abdullahi Hashi, [12] Fatah Haji Hashi, [13] Abdirahman Abderazak Hersi, [15] Dahir Nor Ibrahim, [16] Abdifatah Bashir Jama, [17] Andrew Kayachith, [21] Fuad Faisal Nur, [29] Yasin Abdirhaman Yusuf, and [30] Mohamed Ahmed Amalle.
2. That the Court reconsider and vacate its Order in DE 1395 as such order pertains to the severance of defendants [19] Bashir Yasin Mohamud a/k/a BR and [20] Mustafa Ahmed Mohamed from the other defendants in Counts One and Two of the Second Superseding Indictment (hereinafter "Indictment"), DE 591;
3. That the Court reconsider and vacate its Order DE 1395 as such order pertains to Count 20 of the Indictment and that such count be tried in the trial on March 20, 2012; and
4. That the Court reconsider and vacate its Order DE 1395 as such order pertains to the severance of Counts 22 - 24 of the Indictment and set those counts for trial on March 20, 2012.
Respectfully submitted,
JERRY E. MARTIN
UNITED STATES ATTORNEY
______________________
Van S. Vincent
Assistant United States Attorney
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing was sent, if registered, via the Court's electronic filing system or, if not registered, deposited in the United States Mail, postage prepaid, to the persons following:
On this the 1st day of March, 2012.
______________________
Van S. Vincent
Assistant United States Attorney
Abdifitah Jama Adan (1)
(Defendant)
John P. Cauley
414 Bridge Street
Franklin, TN 37064
(615) 790-2426
(615) 261-7070 (fax)
john@johncauley.com
Abdullahi Sade Afyare (2)
(Defendant)
James A. Simmons
Hazel Path Mansion
105 Hazel Path
Hendersonville, TN 37075
(615) 824-9131
jas52@earthlink.net
Ahmad Abnulnasir Ahmad (3)
(Defendant)
Thomas J. Drake, Jr.
405 1/2 31st Avenue North
Suite B
Nashville, TN 37209
(615)320-1717
(615) 320-1718 (fax)
drakecourt@att.net
Yahya Jamal Ahmed (4)
(Defendant)
James William Price, Jr.
Price, Hill & Kolarich
201 Fourth Avenue, North
Suite 1800
Nashville, TN 37219
(615) 244-5772
jprice@pricehillkolarich.com
Abdikarim Osman Ali (5)
(Defendant)
Fugitive - IN UAE
Musse Ahmed Ali (6)
(Defendant)
Paul Bruno
Law Office of Paul J. Bruno
Bank of America Plaza
414 Union Street
Suite 904
Nashville, TN 37219
(615) 251-9500
Hassan Ahmed Dahir (7)
Patrick T. McNally
Weatherly, McNally & Dixon,
PLC
Fifth Third Center
Suite 2260
424 Church Street
Nashville, TN 37219
(615) 986-3377
(615) 635-0018 (fax)
pmcnally@wmdlawgroup.com
Fadumo Mohamed Farah (8)
(Defendant)
Luke A. Evans
Bullock, Fly, Hornsby & Evans
P. O. Box 398
Murfreesboro, TN 37133
(615) 896-4154
bfhlaw@gmail.com
Idris Ibrahim Fahra (9)
(Defendant)
Jennifer L. Thompson
715 Crescent Road
Nashville, TN 37205
(615) 320-4344
(615) 320-4159 (fax)
nashvilleattorney@gmail.com
Yasin Ahmed Farah (10)
(Defendant)
Roger N. Taylor
Taylor & Schechter, P.C.
305 14th Avenue, N
Nashville, TN 37203
(615) 320-5577 (615) 320-5597 (fax)
bo.taylor@305lawoffice.com
Abdullahi Hashi (11)
(Defendant)
David L. Cooper
Law Office of David L. Cooper, P.
C.
208 Third Avenue, N
Suite 300
Nashville, TN 37201
(615)256-1008
dcooper@cooperlawfirm.com
Fatah Hashi (12)
(Defendant)
John G. Oliva
1308 Rosa L. Parks Blvd
Nashville, TN 37208
(615) 254-0202
jgoliva@comcast.net
Abdirahman Abdirazak Hersi (13)
(Defendant)
Hershell D. Koger
135 N First Street
P O Box 1148
Pulaski, TN 38478-1148
(931) 424-0882
kogerlaw@hotmail.com
Muhiyadin Hussein Hassan
(14)
(Defendant)
Charles D. Buckholts
2400 Crestmoor Road
Nashville, TN 37215
(615) 386-7118
(615) 232-3841 (fax)
chuck@buckholtslaw.com
Dahir Nor Ibrahim (15)
(Defendant)
Jerry Gonzalez
Jerry Gonzalez, PLC
2441-Q Old Fort Parkway
Box 381
Murfreesboro, TN 37128
(615) 360-6060
(615) 360-3333 (fax)
jgonzalez@jglaw.net
Abdifatah Bashir Jama (16)
(Defendant)
Joseph F. Edwards
1957 Benson Road
Cookeville, TN 38506
(931)537-9154
jedwardsjd@frontiernet.net
Andrew Kayachith (17)
(Defendant)
John E. Nicoll
Law Office of Nicoll & Nicoll
313 S Ramsey Street
Manchester, TN 37355
(931) 723-7885
john.nicoll@nicoll-law.com
Abdigadir Ahmed Khalif (18)
FUGITIVE - UNKNOWN
LOCATION
Bashir Yasin Mohamud (19)
(Defendant)
Bob Lynch, Jr.
222 Second Avenue, N
Suite 316
Nashville, TN 37201
(615) 255-2888
tdooley2@bellsouth.net
Mustafa Ahmed Mohamed
(20)
(Defendant)
Clayton M. Whittaker
Mack & Wittaker
846 Oak Street
Chattanooga, TN 37403
(423) 265-4736
(423) 265-4815 (fax)
Fuad Faisal Nur (21)
(Defendant)
Barry R. Tidwell
Price & Tidwell, LLC
218 W Main Street
Murfreesboro, TN 37130
(615)893-1239
barrytidwell@comcast.net
Abdifatah Sharif Omar (22)
Peter J. Strianse
Tune, Entrekin & White
AmSouth Center
315 Deaderick Street
Suite 1700
Nashville, TN 37238
(615) 244-2770
pstrianse@tewlawfirm.com
Liban Sharif Omar (23)
(Defendant)
Gary R. Wolf
Commerce at the Crossing
Suite 205
250 Second Avenue South
Minneapolis, MN 55401
(612) 333-6000
Mohamed Sharif Omar (24)
(Defendant)
Erik Herbert
117 Union Street
Nashville, TN 37201
615-256-6009
(615) 259-2666 (fax)
erikherbert@bellsouth.net
Hamdi Ali Osman (25)
Added: 10/20/2010
(Defendant)
Jonathan E. Richardson
Attorney at Law
Quorum Financial Center
4121 Clarksville Pike, Suite 7
Nashville, TN 37218
(6115)891-7811
jrichardson@Jrichlaw.com
Haji Osman Salad (26)
(Defendant)
Patrick G. Frogge
Bell, Tennent & Frogge, PLLC
Bank of America Plaza
414 Union Street, Suite 904
Nashville, TN 37219
(615) 244-1110
(615) 244-1114 (fax)
patrick@btflaw.com
Bibi Ahmed Said (27)
(Defendant)
Michael David Noel
5115 Maryland Way
Brentwood, TN 37027
(615) 373-5597
mdnoel02@bellsouth.net
Ahmed Aweys Sheik (28)
(Defendant)
B.F. Jack Lowery
Lowery & Lowery
Lowery Building
150 Public Square
Lebanon, TN 37087
(615) 444-7222
jdlowery@lowerylaw.com
Yassin Abdirahman Yusuf (29)
(Defendant)
David I. Komisar
211 Printer's Alley Building
Suite 400
Nashville, TN 37201-1414
(615) 242-2675
david.komisar@prodigy.net
Mohamed Ahmed Amalle (30)
R. Lance Miller
Lance Miller Law LLC
212 Madison Street, Suite
101A
Clarksville, TN 37040
(931)802-6180
(931)551-5331 Cell
lance@lancemillerlaw.com