United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO
DISMISS COUNT SIX OF THE SECOND SUPERSEDING
DBERNARD A. FRIEDMAN, SENIOR UNITED STATES DISTRICT JUDGE
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.
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.
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. 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). And Count Seven charges Dr. Nagarwala and
three other defendants with conspiracy to obstruct an
official proceeding, in violation of 18 U.S.C. §
Nagarwala and Dr. Attar seek dismissal of Count Six, which
to Transport Minor with Intent to Engage in Criminal
Sexual Activity 18 U.S.C. § 2423(a), (e)
JUMANA NAGARWALA D-2 FAKHRUDDIN ATTAR
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).
Six depends entirely on the FGM allegations, see
Second Superseding Indictment ¶¶ 42-43, and not on
any other acts.
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.” 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
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
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.
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.”
definition of “sexual activity” is provided in
the definitions subjection of § 2423. Section 2423(f)
does provide a precise definition of “illicit sexual
conduct, ” the phrase used in § 2423(b)-(d), but