Opinion
3:10-CR-00260 (7)
02-22-2012
UNITED STATES OF AMERICA v. HASSAN AHMED DAHIR
Respectfully submitted, WEATHERLY, MCNALLY & DIXON, PLC PATRICK T. MCNALLY, BPR No. 010046 Attorney for Defendant Nashville, Tennessee 37219
JUDGE HAYNES
DEFENDANT HASSAN AHMED DAHIR'S MOTION FOR SEVERANCE AND
INCORPORATED MEMORANDUM OF LAW
Comes Defendant, Hassan Ahmed Dahir, through undersigned counsel, Patrick T. McNally, and, pursuant to the Due Process Clause of the United States Constitution and the Defendant's right to a fair trial, hereby respectfully moves this Honorable Court for an Order severing the trial of Defendant Dahir from the trial of the other Defendants because such joinder impermissibly prejudices him under Rule 14 of the Federal Rules of Criminal Procedure.
BACKGROUND
Defendant Dahir is one of thirty (30) defendants charged in a twenty-four (24) Count Superseding Indictment filed on May 5, 2011. (Docket Entry no. 591). The conspiracy is alleged to have occurred over a lengthy period of time, and in Count 2 of the indictment, the criminal conduct is alleged to have occurred over ten (10) years. Defendant Dahir asserts that the allegations in the Superseding Indictment charges four separate and distinct conspiracies as to Jane Does One, Two, Three and Four.
Defendant Dahir is alleged to be involved in one single occurrence with only Jane Doe Two. Defendant Dahir is alleged to have traveled from Minneapolis, Minnesota to Rochester, Minnesota on May 8, 2007, with Jane Doe Two and three other persons, two who are also indicted: Fatah Haji Hashi (#12) and Yassin Abdirahman Yusuf (#29). The purpose of the trip was allegedly for charging persons money in exchange for sex with Jane Doe Two. The Superseding Indictment charges Defendants Hashi and Yusuf with numerous other criminal acts involving Jane Doe Two and the additional credit card counts.
ARGUMENT
Defendant Dahir is seeking severance from a joint trial with the co-defendants pursuant to Rule 14 of the Federal Rules of Criminal Procedure. Rule 14 comes into consideration if a joinder was initially proper under Rule 8, Fed. R. Crim. P. but a joint trial would prejudice one or more defendants. United States v. Williams, 711 F.2d 748, 750 (6th Cir. 1983). This is the situation confronting Defendant Dahir.
The general presumption is that, assuming proper joinder in the indictment, that absent a serious risk of compromise that the accused will receive a fair trial, individuals indicted together should be tried together. United States v. Davis, 170 F3d 617 (6th Cir.), cert. denied, 528 U.S. 861 (1999). The presumption that co-defendants will be tried together must fall where a "substantial," "undue," or "compelling" prejudice arises from a joint trial. United States v. Lopez, 309 F3d 966, 971 (6th Cir. 2002).
The prejudice from the spillover evidence against the co-defendants is substantial and prejudices Defendant Dahir's right to a fair trial. The potential for jury confusion in relating witnesses' testimony as to each defendant is alarming. The government has estimated its proof to take two months and two weeks. Of that order of proof only one single incident pertains to Defendant Dahir. The likelihood of transferred guilt from the enormity of proof against the other defendants is itself undue prejudice. Additionally, the government has given notice of its intention to introduce evidence of other prior bad acts pursuant to Rule 404(b) of the Federal Rules of Evidence. The proffered bad acts are highly inflammatory evidence of the co-defendants' bad conduct. The government's notice does not indicate any 404(b) evidence against Defendant Dahir.
Where a defendant suffers substantial prejudice from spillover effect of unrelated criminal conduct, he is "denied a fundamentally fair trial." United States v. Davidson, 936 F.2d 856, 861 (6th Cir. 1991). Considerations of severance under Rule 14 is challenging when the Court is considering the undue prejudice without hearing the government's proof in its entirety. High sight as the sage wisdom suggest is 20 - 20. But the Court must look forward in considering this Motion. Defendant Dahir suggests that given the breath of the conspiracy allegations and narrow allegation against him, the course of prudence is to server his trial from the co-defendants' trial.
Respectfully submitted,
WEATHERLY, MCNALLY & DIXON, PLC
By _________________
PATRICK T. MCNALLY, BPR No. 010046
Attorney for Defendant
Nashville, Tennessee 37219
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been sent via the Court's electronic filing system, if registered, or, if unregistered in the Court's system, it has been sent via U.S. Mail, postage prepaid, to:
Mr. Van S. Vincent
Assistant United States Attorney
110 Ninth Avenue, South
Suite A961
Nashville, TN 37203-3870
Ms. Blanche B. Cooke
Assistant United States Attorney
110 Ninth Avenue, South
Suite A961
Nashville, TN 37203-3870
_________________
Patrick T. McNally