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United States v. Nagarwala

United States District Court, E.D. Michigan, Southern Division

January 14, 2018




         This matter is presently before the Court on the motion of defendants Jumana Nagarwala (“Dr. Nagarwala”) and Fakhruddin Attar (“Dr. Attar”) to dismiss Count Six of the second superseding indictment [docket entry 171]. The government has responded, defendants have replied, and the Court has heard oral argument. For the reasons stated below, the Court shall grant the motion.

         This case concerns female genital mutilation (“FGM”). There are eight defendants. The government alleges that Dr. Nagarwala performed the procedure; that Dr. Attar allowed Dr. Nagarwala to use his clinic to perform the procedure; that Farida Attar (Dr. Attar's wife) and Tahera Shafiq assisted Dr. Nagarwala in performing the procedure; and that the other defendants, who are the mothers of the victims, brought them to the clinic for the procedure.

         The second superseding indictment (hereinafter, “the indictment”) contains seven counts. Count One charges all defendants with conspiracy to commit FGM in violation of 18 U.S.C. §§ 116 and 371.[1] Counts Two through Five charge Dr. Nagarwala and one or more of the other defendants with committing FGM upon, respectively, minor victims 1, 2, 3, and 4, or aiding and abetting one another in doing so, in violation of 18 U.S.C. §§ 2 and 371. Count Six charges Dr. Nagarwala and Dr. Attar with “conspiracy to transport minor with intent to engage in criminal sexual activity, ” in violation of 18 U.S.C. § 2423(a) and (e).[2] And Count Seven charges Dr. Nagarwala and three other defendants with conspiracy to obstruct an official proceeding, in violation of 18 U.S.C. § 1512(k).

         Dr. Nagarwala and Dr. Attar seek dismissal of Count Six, which alleges:

         Conspiracy to Transport Minor with Intent to Engage in Criminal Sexual Activity 18 U.S.C. § 2423(a), (e)


42. Paragraphs 1 through 4, 9-12 and 15-17 of the General Allegations and paragraphs 21 through 24 of the Manner and Means of this Second Superseding Indictment are realleged and incorporated by reference . . .
43. From January 2017 to February 4, 2017, in the Eastern District of Michigan and elsewhere, the defendants . . . did knowingly and willfully conspire and agree together and with other persons . . . to knowingly transport an individual who had not attained the age of 18 years . . . with the intent that the individual engage in any sexual activity for which any person can be charged with a criminal offense, in violation of Title 18 U.S.C. § 2423(a), (e).

         Count Six depends entirely on the FGM allegations, see Second Superseding Indictment ¶¶ 42-43, and not on any other acts.[3]

         The essence of defendants' argument is that the allegations in the indictment do not support Count Six, which charges them with conspiring to engage in criminal sexual activity. While § 2423(f) defines “illicit sexual conduct” - the phrase used in § 2423(b), (c), and (d) - defendants note that § 2423 does not define the phrase “criminal sexual activity.”[4] They argue that the government is impermissibly using the definition of “criminal sexual conduct” under state law and “sexual act” from another federal statute to characterize their actions in committing, or conspiring to commit, FGM as “criminal sexual activity.”

          Defendants' motion is brought under Fed. R. Crim. P. 12(b)(3)(B)(v), which allows a defendant to challenge an indictment for “failure to state an offense.” The legal standards governing the motion have been stated as follows:

In general, an indictment is constitutionally adequate if it “contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. Maney, 226 F.3d 660, 663 (6th Cir.2000); United States v. Monus, 128 F.3d 376, 388 (6th Cir.1997). However, it is axiomatic that, “[t]o be legally sufficient, the indictment must assert facts which in law constitute an offense; and which, if proved, would establish prima facie the defendant's commission of that crime.” United States v. Superior Growers Supply, Inc., 982 F.2d 173, 177 (6th Cir.1992) (citing Fleisher v. United States, 302 U.S. 218, 58 S.Ct. 148, 82 L.Ed. 208 (1937)) (per curiam); cf. Hamling, 418 U.S. at 117, 94 S.Ct. 2887 (stating that an indictment is sufficient if it “set[s] forth the offense in the words of the statute itself, as long as those words ... fully, directly, and expressly ... set forth all the elements necessary to constitute the offense intended to be punished.” (citations omitted)). An indictment is usually sufficient if it states the offense using the words of the statute itself, as long as the statute fully and unambiguously states all the elements of the offense. Hamling, 418 U.S. at 117, 94 S.Ct. 2887; Monus, 128 F.3d at 388. At the same time, the Supreme Court has cautioned: “Undoubtedly the language of the statute may be used in the general description of the offense, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged.” Hamling, 418 U.S. at 117-18, 94 S.Ct. 2887 (quotation marks omitted) (emphasis added).
Further, courts evaluating motions to dismiss do not evaluate the evidence upon which the indictment is based. See Costello v. United States, 350 U.S. 359, 362-63, 76 S.Ct. 406, 100 L.Ed. 397 (1956); United States v. Powell, 823 F.2d 996, 999-1001 (6th Cir.1987); United States v. Markey, 693 F.2d 594, 596 (6th Cir.1982) (stating that the “validity of an indictment is not affected by the type of evidence presented to the grand jury, even though that evidence may be incompetent, inadequate or hearsay”); United States v. Short, 671 F.2d 178, 182 (6th Cir.1982) (stating that criminal cases should not be “further attenuated by preliminary trials concerning the adequacy of grand jury proceedings, a concern particularly noted in Costello” (quotation marks omitted)). . . .

United States v. Landham, 251 F.3d 1072, 1079-80 (6th Cir. 2001) (footnotes omitted). Additionally, criminal statutes “must be strictly construed, and any ambiguity must be resolved in favor of lenity.” United States v. Enmons, 410 U.S. 396, 411 (1973). For purposes of deciding the instant motion, the Court assumes the truth of the indictment's allegations.[5]

         Count Six must be dismissed because while “the indictment must assert facts which in law constitute an offense, ” Superior Growers, 982 F.2d at 177, the indictment in this case alleges no facts which, if proven, would establish that Dr. Nagarwala or Dr. Attar violated 18 U.S.C. § 2423(a) or (e). To prove their guilt on this charge, the government must show that defendants transported a minor “with intent that [the minor] engage in . . . any sexual activity for which any person can be charged with a criminal offense.” Section 2423(a). The facts alleged in the indictment do not support this charge because, as a matter of law, FGM, while a prohibited criminal act, is not “criminal sexual activity.”

         No definition of “sexual activity” is provided in the definitions subjection of § 2423. Section 2423(f) does provide a precise definition of “illicit sexual conduct, ”[6] the phrase used in ยง 2423(b)-(d), but it ...

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