Opinion
Case No. 3:10-cr-00260-8
03-30-2012
UNITED STATES OF AMERICA, v. FADUMO MOHAMED FARAH.
BULLOCK, FLY, HORNSBY & EVANS LUKE A. EVANS, BPR #23620 Attorney for Defendant
William J. Haynes
Federal District Judge
MOTION TO DISMISS COUNTS 1 AND 2 OF THE INDICTMENT
Comes now the accused, Faduma Farah, by and through her counsel, Luke A. Evans, and moves this Honorable Court to dismiss Counts 1 and 2 of the Indictment. In support thereof the accused states as follows:
1. The Defendant was originally charged in Counts 1, 2, 11 and 23 of the Indictment. Count 23 was previously severed from Counts 1, 2, and 11 upon motion of the Defendant. Count 11 was dismissed upon motion of the Government.
2. Count 11 alleged that the Defendant trafficked Jane Doe 1. Counts 1 and 2 identified the same facts alleged in Count 11 as the overt acts to support the allegations of conspiracy. The Government has represented to Counsel that they no longer intend to call Jane Doe 1 to testify in this matter. Instead, the Government intends to carry its burden against Faduma Farah as to Counts 1 and 2 with the testimony of Jane Doe 5.
3. The Government contends in the indictment that the conspiracy began around January of 2000. Jane Doe 5 states in her Grand Jury testimony that Faleebo made money off of her for sex in 2001. (Exhibit 1, Excerpt of August 10, 2010 Grand Jury Testimony P. 18, 19, 20, 21). Jane Doe 5 further states that Faleebo and Faduma made money of her when she was in Nashville in 2003. (Exhibit 1, Excerpt of August 10, 2010 Grand Jury Testimony P. 24, 27).
4. It is undisputed that Faduma Farah's date of birth is November 19, 1984 and that Jane Doe 5's documentation shows her date of birth as January 1, 1983. Based on these undisputed facts the Defendant did not reach the age of majority until November 19, 2002. Therefore, pursuant to 18 U.S.C. § 5031, this Court lacks jurisdiction over any allegations against the Defendant that are prior to November 19, 2002.
5. For the Government to prevail in Count 1 and/or 2 of the indictment they must proof every element of the offense beyond a reasonable doubt. More specifically, that the defendant conspired to traffic someone and/or received anything of value from trafficking someone "who had not attained the age of 18 years." 18 U.S.C. 1591 (a)(1) and (2). In the instant case, Jane Doe 5's documented date of birth is January 1, 1983. In 2001 Jane Doe 5 became 18 years old. When Faduma Farah reached the age of majority, in 2002, Jane Doe 5 was over the age of 18. Therefore, it is impossible for the Government to carry its burden in the instant case.
WHEREFORE, PREMISES CONSIDERED, the accused, through counsel, moves this Honorable Court to dismiss Counts 1 and 2 of the Indictment for the reasons stated herein.
Respectfully submitted,
BULLOCK, FLY, HORNSBY & EVANS
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LUKE A. EVANS, BPR #23620
Attorney for Defendant
Certificate of Service
I hereby certify that on March 26, 2012, I electronically filed the foregoing Motion with the clerk of the court by using the CM/ECF system, which will send a Notice of Electronic Filing to the following: Van Vincent and Blanche Cook, Assistant United States Attorney, 110 Ninth Avenue South, Suite A-961, Nashville, Tennessee 37203; along with the other parties in this case as listed to be noticed in the CM/ECF system.
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LUKE A. EVANS