Opinion
Case No. 3:10-00260-15
03-02-2012
UNITED STATES, Plaintiff v. DAHIR NOR IBRAHIM, Defendant
Respectfully submitted, Jerry Gonzalez (18379) Attorney for Defendant (15)
Hon. Haynes
MOTION TO STRIKE EXHIBITS TO GOVERNMENT'S MOTION FOR JOINDER
BASED ON VICTIMS' RIGHTS
The Government has filed a motion for joinder of "Defendants to Avoid Unreasonable Delay and to Protect the Dignity and Privacy of the Victims." (D.E. 1760) In support, the Government has filed three "affidavits" purporting to be the sworn statements of Jane Doe 2, SB, the mother of Jane Doe 2, and Jane Doe 5. Each "affidavit" ends with "this ends my statement." Nowhere in the "affidavits" does it indicate that they are made under oath.
Under 28 USCA §1746,
wherever under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:(Signature)". Testimony in court or in support of a court proceeding is required to be made under oath. "Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness's conscience." F.R.E. 603.
(2) If executed within the United States, its territories, possessions, or commonwealths: "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).
An "affidavit" is a voluntary written statement of fact under oath sworn to or affirmed by the person making it before some person who has authority under the law to administer oaths and officially certified to by the officer under his seal or office. 3 Am. Jur. 2d Affidavits § 1. A complete affidavit must satisfy three essential elements, one of which is a written oath embodying the facts as sworn to by the affiant. 3 Am .Jur. 2d Affidavits § 8. "An unsworn affidavit cannot be used to support or oppose a motion ... ." Pollock v. Pollock, 154 F.3d 601, 611 n.20 (6th Cir. 1998) (applying principle in a motion for summary judgment). The U.S. District Court for the Western District of Michigan summarized what was allowed as an affidavit as follows:
Plaintiff is not entitled to a TRO because he has failed to present an affidavit or verified complaint containing "specific facts that clearly show that immediate and irreparable injury, loss, or damage will result to [him] before the adverse party can be heard in opposition." Fed. R. Civ. P. 65(b)(1)(A). Plaintiff's amended complaint, while referring to 28 U.S.C. § 1746 (i.e., "This document is executed pursuant to 28 U.S.C. 1746, and these are my statements!"), does not contain the certification required by that statute. See Walton v. Wheatly Company, No. 92-3379, 1993 U.S. App. LEXIS 3507, 1993 WL 43934 at *2-*3 (6th Cir. Feb. 19, 1993) (a so-called affidavit of poverty seeking in forma pauperis status which contained statements that litigant "acknowledged as the truth" was insufficient to comply with the requirement of § 1746 that the statements be acknowledged as true "under penalty of perjury"); Savage v. Stickman, No. CIVA 06-269J, 2007 U.S. Dist. LEXIS 11207, 2007 WL 550268 at *1 (W.D. Pa. Feb. 16, 2007) (court found plaintiff's so-called affidavit to be insufficient "because at the end of it Plaintiff merely states, 'I declare that the foregoing is true and correct' without stating, as required, 'under penalty of perjury'").Schuh v Michigan Department of Education, 2010 U.S. Dist. LEXIS 96812, at *3. The affidavits in support of the government's motion are not true "affidavits", are not provided as having been taken under oath, and are not appropriately submitted. Therefore, Defendant Ibrahim moves that they be stricken or not considered.
Respectfully submitted,
______________________
Jerry Gonzalez (18379)
Attorney for Defendant (15)
CERTIFICATE OF SERVICE
I certify that I electronically filed the foregoing 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
United States Department of Justice
Jerry Gonzalez