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United States of America v. Sabil Mumin Mujahid

May 25, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
SABIL MUMIN MUJAHID,
DEFENDANT.



The opinion of the court was delivered by: Deborah M. Smith United States Magistrate Judge

REPORT AND RECOMMENDATION*fn1 REGARDING DEFENDANT'S MOTION AND PREJUDICIAL JOINDER TO SEVER COUNTS FOR IMPROPER [Doc. 238]

I. MOTION PRESENTED

Defendant Sabil Mujahid is charged in a twenty-count Second Superceding Indictment (Docket 218). Counts 1-4 are related to the alleged sexual assault of John Doe 1 on or about May 26, 2010 in the Anchorage Correctional Complex. Counts 5-8 are related to the alleged sexual assault of John Doe 2 on or about May 3 and May 6, 2009 in the Anchorage Correctional Complex. Counts 9-12 are related to the alleged sexual assault of John Doe 3 on or about April 15, 2010 in the Anchorage Correctional Complex. Count 13 alleges that Mujahid attempted to sexually assault John Doe 4 on or about March 6 and March 11, 2010 in the Anchorage Correctional Complex. That count has already been severed because of an attorney conflict of interest with John Doe 4. Count 14 alleges that Mujahid attempted to sexually assault John Doe 5 on or about April 28 and May 2, 2010 in the Anchorage Correctional Complex. Counts 15-20 are related to the alleged sexual assault of John Doe 6 on or about February 12, 2010 in the Anchorage Correctional Complex.

Specifically, the Second Superceding Indictment charges Mujahid with six counts (Counts 1, 3, 5, 9, 17, 19) of aggravated sexual abuse in violation of 18 U.S.C. § 2241(a)(1) for causing the victims to engage in a sexual act by using force. Alternatively, the indictment alleges six counts (2, 4, 6, 10, 18, 20) of sexual abuse in violation of 18 U.S.C. § 2242(1) for causing the victims to engage in a sexual act by using threats. The Second Superceding Indictment charges three counts (Counts 7, 11, 15) of abusive sexual contact in violation of 18 U.S.C. § 2244(a)(1), for causing the victims to engage in sexual contact by using force and, alternatively, it charges three counts (Counts 8, 12, 16) of abusive sexual contact in violation of 18 U.S.C. § 2244(a)(2), for causing the victims to engage in sexual contact by using threats. It also charges two counts (Counts 13, 14) of attempted sexual abuse in violation of § 2242(1) for attempting to cause two victims to engage in a sexual act by placing them in fear.

In this motion, Defendant Mujahid argues that Counts 15-20, involving John Doe 6, have been improperly joined under Rule 8(a) of the Federal Rules of Criminal Procedure with the remaining counts. He asserts that the counts involving John Doe 6 do not involve the same transaction, are not of the same or similar character, and are not parts of a common scheme or plan as required by Rule 8(a). He also argues that severance of Counts 15-20 is proper under Rule 14 of the Federal Rules of Criminal Procedure because the joinder of these counts with the remaining counts is prejudicial.

The Government opposes the motion. It argues that Counts 15-20 are properly joined under Rule 8(a) because they are of the same or similar character as the other counts. It asserts that these charges can be considered similar in character because 1) the statutory elements of the counts are very similar and require almost the same proof; 2) all the alleged sexual assaults in the indictment occurred within a year; 3) there is a strong likelihood of evidentiary overlap for all the charges; 4) the physical location of the alleged assaults is the same; 5) the victims, while not the same, were all inmates at the Anchorage Correctional Complex; and 6) the modus operandi for all the charges in the Second Superceding Indictment are the same. The Government also argues that severance is not warranted under Rule 14(a) because Mujahid has not demonstrated how the joinder is prejudicial.

Mujahid brought a similar motion to sever when he was charged in the original indictment. The original indictment in this case charged Mujahid with Counts 1-12. Counts 13-20 have been subsequently added through superceding indictments. In his previous motion to sever, found at Docket 33, he asked the Court to sever Counts 5-8 from the remaining counts for essentially the same reasons. This Court recommended that the motion be denied and the District Court adopted the recommendation.

II. DISCUSSION

A. Joinder under Rule 8(a)

Rule 8(a) of the Federal Rules of Criminal Procedure provides for the joinder of separate offenses. It states as follows:

The indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged -- whether felonies or misdemeanors or both -- [1] are of the same or similar character, or [2] are based on the same act or transaction, or [3] are connected with or constitute parts of a common scheme or plan.

Fed. R. Crim. P. 8(a). "Because Rule 8 is concerned with the propriety of joining offenses in the indictment, the validity of the joinder is determined solely by the allegations in the indictment."

United States v. Terry, 911 F.2d 272, 276 (9th Cir. 1990). Rule 8(a) is broadly construed in favor of initial joinder mainly because Rule 14 is available for any prejudice that may develop while the trial is in progress. See United States v. Jawara, 474 F.3d 565, 573 (9th Cir. 2007) (quoting United States v. Friedman, 445 F.2d 1076, 1082 (9th Cir. 1971)).

In this case, the Government argues that the counts involving John Doe 6 are properly joined with the remaining counts because all counts are of the same or similar character. In the Ninth Circuit, the test for whether charges are of the same or similar character is more stringent than in other circuits. As explained in Jawara, the Ninth Circuit rejected the concept that charges fit under 8(a)'s "same or similar character" prong if they are categorically the same. In Jawara, the court concluded that just because the charges ...


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