United States v. Abdullahi Farah

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 14a0233p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA , X

Plaintiff-Appellee, -

-

- No. 13-6147

v. -

>

,

ABDULLAHI FARAH , -

Defendant-Appellant. -

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N

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 3:12-cr-00196-1—Kevin H. Sharp, District Judge.

Argued: May 7, 2014

Decided and Filed: September 11, 2014

Before: COLE, Chief Judge; MOORE, Circuit Judge; DRAIN, District Judge*

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COUNSEL

ARGUED: James Mackler, BONE MCALLESTER NORTON PLLC, Nashville,

Tennessee, for Appellant. Van S. Vincent, UNITED STATES ATTORNEY’S OFFICE,

Nashville, Tennessee, for Appellee. ON BRIEF: James Mackler, BONE

MCALLESTER NORTON PLLC, Nashville, Tennessee, for Appellant. Van S. Vincent,

UNITED STATES ATTORNEY’S OFFICE, Nashville, Tennessee, for Appellee.

DRAIN, D.J., delivered the opinion of the court, in which COLE, C.J., joined,

and MOORE, J., joined in part. MOORE, J. (pp. 26–33), delivered a separate opinion

dissenting from Part III.A. of the majority’s opinion.

*

The Honorable Gershwin A. Drain, United States District Judge for the Eastern District of

Michigan, sitting by designation.

1

No. 13-6147 United States v. Farah Page 2

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OPINION

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I.

GERSHWIN A. DRAIN, District Judge. Defendant Abdullahi Farah was

convicted after a two-day jury trial of violating 18 U.S.C. § 401(3), for willfully

disobeying an order requiring his testimony by deposition for use in a separate criminal

prosecution and for violating 18 U.S.C. § 1591(d), which prohibits the obstruction, or

the attempt to obstruct the enforcement of §1591(a), a child sex trafficking statute.

Farah’s conviction stems from his refusal to testify in the ongoing criminal prosecution

of thirty gang members of Somalian descent charged in the United States District Court

for the Middle District of Tennessee with several conspiracies including sex trafficking

of minors, interstate transportation of stolen goods and other offenses.1

Because we conclude Farah’s conviction for violating 18 U.S.C. § 401(3)

violates the Double Jeopardy Clause and the rule announced in Yates v. United States,

355 U.S. 66, 78 S. Ct. 128, 2 L. Ed. 2d 95 (1957), we VACATE his judgment of

conviction on that count. However, Farah’s Double Jeopardy rights were only violated

in part because he was also convicted of obstructing or attempting to obstruct the child

sex trafficking laws, thus his conviction on that count passes the “same elements” test

announced in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed.

306 (1932). We further find that none of Farah’s remaining claims challenging his

conviction for violating 18 U.S.C. § 1591(d) have merit, thus his judgment of conviction

as to that count is AFFIRMED.

1

United States v. Abdifitah Adan, 3:10-260.

No. 13-6147 United States v. Farah Page 3

II.

Farah has been a member of the Somali Outlaws gang for nearly a decade,

although during the course of the proceedings below, he has since renounced his

membership and affiliation with the gang. In 2010, while detained in immigration

custody in Ramsey County, Minnesota,2 Farah was approached by the Government

about an incident occurring in Nashville. Farah ultimately agreed to offer his assistance

with respect to the Government’s investigation. Farah believed that in exchange for his

cooperation he would receive immunity from prosecution, reversal of the revocation of

his work permit, help obtaining his citizenship and release from custody.

Farah was granted transactional immunity and testified before the grand jury on

three separate occasions. He also assisted with the identification of gang members and

provided reliable information concerning the locations of many of the Adan defendants

at the time the Government filed the charges and brought the Adan defendants into

custody in the fall of 2010.

Farah claims that after the Adan indictment was filed, other gang members in the

community began to suspect that he was supplying information to the Government

because he was not indicted. He claims he was assaulted twice during the latter half of

2011. The first time he claims he was pistol whipped and beaten by four masked men

near his home. The men threatened to kill him and harm his family. While Farah was

in constant contact with Government agents during this time, when questioned by an

agent about a cut above his eye resulting from the purported assault, Farah claimed he

obtained the injury while playing basketball. He also claims he was assaulted right

before the Christmas holiday that same year.

The Adan case was severed into separate trials by the trial court, with the first

trial commencing in March of 2012. Farah was arrested on a material witness warrant

a month before the commencement of the trial. A detention hearing was held before a

2

Farah has several prior convictions and removal proceedings have been initiated.

No. 13-6147 United States v. Farah Page 4

magistrate judge who determined that there were no conditions or combination of

conditions that could reasonably assure Farah’s appearance and ordered his detention as

a material witness in the Adan case. The district judge presiding over the Adan case

recused himself from all material witness proceedings dealing with Farah and a separate

case was opened.3

On April 18, 2012, Farah made his appearance before a district judge based on

the Government’s “motion for a hearing related to witness’s refusal to testify.” The

Government indicated that it had reached the point in the Adan trial for Farah’s

testimony and his “anticipated testimony would relate to the sex trafficking of [the]

individual known as Jane Doe 2, as well as relating to information known about the

venture, which is a requirement under 18 U.S.C. § 1591(a)(2) . . . [h]e would also have

the information about . . . identifying particular defendants’ voices. And that’s it in a

nutshell, Your Honor, as to materiality.” Farah, who was represented by counsel at the

hearing, informed the district judge that he refused to testify.

EXAMINATION BY THE COURT:

Q: Mr. Farah, the government has filed a motion asking me to

compel you to testify in the Adan case that is being tried before

Judge Haynes down the hall. I first want to establish whether you

are willing to testify in that case. Are you willing to testify in that

case?

A. No, Your Honor.

Farah explained to the Court that he was refusing to testify because: “I was coercion and

I was pressured to testify from the beginning. It wasn’t my choice. I was either

threatened to go to jail or be indicted upon the case or either testify.” Farah claimed the

Government had lied to him and his safety was in jeopardy, however he failed to inform

the court that he was twice assaulted by gang members and his family had been

threatened in the preceding year.

3

The district judge recused himself because his son worked at the same law firm that Farah’s

defense counsel worked.

No. 13-6147 United States v. Farah Page 5

The district judge concluded that Farah failed to establish just cause for his

refusal to testify, ordered him to testify for the prosecution in the ongoing Adan trial, and

found him in civil contempt. He also ordered Farah’s detention for the remainder of the

trial unless Farah purged himself of the contempt by testifying. The next day, another

hearing was held to determine whether Farah would testify, but Farah indicated that his

position had not changed. The district judge reserved consideration of the Government’s

oral request to find Farah in criminal contempt until the conclusion of the trial, and again

informed Farah that the civil contempt could be purged upon his decision to testify.

Upon the conclusion of the trial in Adan,4 the district judge set a trial date for the

Government’s motion to hold Farah in criminal contempt.

A June 2012 bench trial was held and Farah was found guilty of criminal

contempt. At the trial, Farah testified about the two assaults in 2011, however the

district judge had serious doubts about his credibility particularly in light of his conduct

just prior to his arrest. The district judge concluded that:

[T]he Court clearly ordered the defendant to testify. It was an ongoing

trial. He was to be called as a witness on the day that we had the initial

hearing, the 18th of April. And the defendant was clearly ordered to

testify, and he refused. So he had the benefit of a clear and definite order,

and he knew of the order.

Sentencing was held on July 3, 2012. The district judge began by noting that the

statutory maximum for criminal contempt was six-months imprisonment, but ultimately

determined the statutory maximum was “not called for” under the circumstances

because:

[I]f Mr. Farah repeats his conduct of failing to testify in legal

proceedings, the Court wants to have the flexibility to impose a graduated

sentence, meaning for there to be additional possibility of more

4

The jury returned guilty verdicts as to 3 defendants and 6 defendants were acquitted. The district

judge later vacated the convictions and granted new trials for the three convicted defendants. As of the

date of this opinion, no more trials have been held in this matter. The record reveals 3-6 trials will be held

as to the remaining Adan defendants. A trial set for October of 2013 did not take place and there have

been no further trials scheduled. Since the first trial, five defendants have entered guilty pleas to counts

unrelated to the sex trafficking counts and received sentences ranging from time served to forty-eight-

months imprisonment.

No. 13-6147 United States v. Farah Page 6

punishment if we are simply here in a few months doing this same

proceeding.

Farah’s counsel lodged an objection to this portion of the district judge’s ruling:

[I]t appears the Court is at least considering the possibility that if Mr.

Farah was charged with and tried for an additional contempt charge for

refusing to testify, he could be again convicted. It is now and will be my

position that that would be double jeopardy. Mr. Farah has said he will

not testify against the gang members. And the fact that the government

has divided this case into multiple cases5 doesn’t change the fact that he

has committed one act of contempt and that is the only act of contempt.

He should not be held in multiple contempts because of the government’s

decision to bifurcate the trials. I am making that objection now because

I raised it earlier.

While Farah was serving his four month sentence, his attorney filed a motion for

review of the order detaining him as a material witness requesting that Farah be released

after the conclusion of his sentence for criminal contempt, or in early October 2012,

because further detention at that point implicated constitutional considerations because

none of the remaining trials had been set in the Adan case. A hearing was held before

the district judge on August 23, 2012.

At the hearing, the district judge began by stating the procedural posture of the

case:

Farah[] has filed a motion for the review of the detention order of the

magistrate judge, . . . Docket Number 19 entered on May 16, 2012. It in

turn relies on the detention order in Case Number 12-2029. And just to

try to keep things clear, the detention order in the Case 3:12-85 was a

detention for Mr. Farah as a defendant in the criminal case dealing with

criminal contempt. But that order relies on the reasons stated for

detaining Mr. Farah in Case Number 12-2029 as a material witness. So

it is all interrelated.

5

The record is not clear as to whether the Government requested that the trial proceed in stages,

or whether the district judge determined that multiple trials were necessary for court administrative

purposes, or whether both desired to resolve the Adan prosecution in separate trials.

No. 13-6147 United States v. Farah Page 7

Defense counsel argued that once Farah served the remaining term of his sentence for

criminal contempt, he should be released because continued confinement as a material

witness was unjust under the circumstances:

[O]nce he serves his remaining two months [he] will be arguably being

held in detention with no trial date set, no idea when trial dates will be

set, and no idea how many trials he will be asked to testify in, which

could potentially go on for years. This is all in light of the fact that he’s

already told this Court and is suffering the consequences of it that he will

not testify against the Somali gang, meaning he won’t be providing

testimony in any of those upcoming trials.

The district judge inquired if a deposition could be taken pursuant to 18 U.S.C. § 3144.

Defense counsel responded that, while he raised the subject of a deposition in his motion,

he inartfully did so and meant to argue that such an endeavor would be futile because

Farah would not change his stance regarding testifying in the Adan matter. The

Government requested that Farah’s testimony by deposition be ordered by the court,

however neither the Government nor the district judge addressed the requirements for

ordering a deposition pursuant to 18 U.S.C. § 3144. The district judge took the matter

under advisement and later granted the request in an August 23, 2012 summary order.

The deposition was held at the courthouse on September 12, 2012, and the Adan

defendants, and their counsel, were either present or waived their presence. At the

deposition, the Government began by stating the purpose of the deposition was for use

“at trial in relation to the matter of United States v. Adan 3:10-00260.” The Government

proceeded to ask Farah if he would answer questions regarding issues involved in the

remaining trials for which the Government sought his testimony. Farah persisted in his

refusal and indicated he would not testify in any of the trials.6

After the deposition, the Government moved to hold Farah in civil contempt

based on his refusal to testify at the deposition. The district judge denied the

Government’s motion, finding in relevant part:

6

Farah was not placed under oath prior to questioning.

No. 13-6147 United States v. Farah Page 8

The Court concludes that holding Mr. Farah in civil contempt at this

stage of the proceedings is not appropriate. The Court ordered the

deposition of Mr. Farah in order to secure his testimony and eliminate the

need for his appearance as a witness at future trials in the Adan case. Mr.

Farah’s refusal to testify at the deposition is tantamount to refusing to

testify at each of the upcoming trials. Therefore, Mr. Farah no longer

needs an opportunity to purge himself of the contempt, as is contemplated

by the imposition of civil contempt. Instead, the Government may seek

to charge Mr. Farah with criminal contempt for his refusal to testify at the

deposition, or alternatively, may seek to have the grand jury issue an

indictment for obstruction of justice or other appropriate charges.

On October 3, 2012, the Government filed the three-count indictment giving rise

to the instant action.7 Count One of the indictment charged Farah with violation of

18 U.S.C. § 401(1) for “willfully and knowingly misbehav[ing] in the presence of the

[district judge]. . . or so near thereto as to obstruct the administration of justice in” both

Farah [3:12-85] and the Adan actions by refusing to testify at the deposition. Count Two

charged Farah with “willfully and knowingly disobey[ing] and resist[ing]” the August

2012 order issued in the cases of Farah [3:12-85] and Adan by refusing to testify.

Lastly, Farah was charged with violating 18 U.S.C. § 1591(d), which punishes

interference with the enforcement of child sex trafficking laws.

The district judge presiding over Farah’s material witness and contempt

proceedings entered an order of recusal because he was mentioned in the body of the

indictment and the matter was assigned to a different district judge. Thereafter, Farah

filed a motion to dismiss arguing that the indictment violated the constitutional

prohibition against double jeopardy, among other things. The district judge denied this

motion, as well as Farah’s motion to compel discovery related to Somali gangs and

witness retaliation and his motion to permit the use of an expert on street gang behavior.

At a pre-trial hearing, the district judge informed the parties that he would not permit

Farah to present a duress defense at trial.

7

United States v. Abdullahi Farah, 3:12-00196.

No. 13-6147 United States v. Farah Page 9

The trial commenced on April 16, 2013. The Government introduced the August

2012 order and the Notice of Deposition which stated that the purpose of the deposition

was for use in the Adan case. The parties stipulated to the introduction of evidence that

“on or before September 12, 2012,” Farah had “material information relating to the

enforcement of” 18 U.S.C. §§ 1591(a)(1) & (a)(2), and 1594(c) and that on that same

date, the Government was “engaged in the enforcement” of federal laws including

“violation of Title 18, USC, Sections 1512(b)(1), 1512(b)(2), 1512(b)(3), 1512(c)(1), and

1512(c)(2), including prosecution” in the Adan matter. The jury heard from two law

enforcement officials who were present at the deposition, and both testified that Farah

stated he would not provide testimony for any of the remaining Adan trials.

The jury found Farah guilty of all three counts charged in the indictment,

however the district judge subsequently granted Farah’s motion for judgment of acquittal

in part and set aside Farah’s conviction as to Count One. Farah was sentenced to a term

of 15-months imprisonment for Counts Two and Three, to run concurrently. Farah’s

timely appeal followed.

III.

A.

Farah argues that the district court erred in denying his motion to dismiss and his

convictions should be vacated because the indictment violated the double jeopardy clause

of the Fifth Amendment. His refusal to testify at the deposition was a continuation of

his conduct in April of 2012–conduct which forms the basis of his prior contempt

conviction. He maintains that the Government seeks to transform his single act of

contempt into multiple acts of contempt to improperly impose additional punishment.

Conversely, the Government argues that the double jeopardy clause is not

implicated here because Farah’s first contempt was based upon his refusal to testify

during the first Adan trial, while the indictment at issue herein arose from his failure to

comply with a court order to provide deposition testimony after the conclusion of the

first trial in Adan. Moreover, the instant action charges Farah with the additional crime

No. 13-6147 United States v. Farah Page 10

of violating 18 U.S.C. § 1591(d), a charge that was not the subject of the 2012 contempt

trial or resulting conviction.

Double jeopardy claims are questions of law that require de novo review. United

States v. Anderson-Bagshaw, 509 F. App’x 396, 411 (6th Cir. 2012); United States v.

Dakota, 197 F.3d 821, 826 (6th Cir. 1999). The double jeopardy clause of the Fifth

Amendment provides that no person shall “be subject for the same offence to be twice

put in jeopardy of life or limb.” U.S. Const. amend. V. The clause protects criminal

defendants from successive prosecutions for the same offense after acquittal or

conviction, as well as from multiple punishments for the same offense. Brown v. Ohio,

432 U.S. 161, 165, 97 S. Ct. 2221, 2225, 53 L. Ed. 2d 187 (1977). “[T]he Fifth

Amendment double jeopardy guarantee serves principally as a restraint on courts and

prosecutors.” Id.

The traditional test for double jeopardy claims is the “same elements” test set

forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306

(1932). While Blockburger is normally the measure of constitutional compliance, “it is

not the only standard for determining whether successive prosecutions impermissibly

involve the same offense.” Brown, 432 U.S. at 166 n.6; see also Rashad v. Burt,

108 F.3d 677, 679 (6th Cir. 1997) (“[T]he Blockburger test is insufficient where, as here,

the concern is not multiple charges under separate statutes, but rather successive

prosecutions for conduct that may constitute the same act or transaction.”).

As an initial matter, it appears that reliance on the Blockburger test alone will not

address the various issues raised by Farah’s convictions under 18 U.S.C. § 401(3) and

18 U.S. C. § 1591(d). In Rashad, a panel of this Court explained that:

The Blockburger test is designed to deal with the situation where closely

connected conduct results in multiple charges under separate statutes.

In a Blockburger case, the critical question is whether the multiple

charges in reality constitute the same offense. Thus, the Blockburger test

focuses on whether the statutory elements of the two crimes charged are

duplicative.

No. 13-6147 United States v. Farah Page 11

Rashad, 108 F.3d at 679 (emphasis supplied). The defendant in Rashad argued that his

conviction for possession with intent to deliver cocaine after an earlier conviction for

possession and delivery of the same substance violated his rights under the double

jeopardy clause. Id. at 678. The arresting officers in Rashad discovered cocaine in both

his house and car. Id. at 679. The defendant’s first trial for possession with intent to

deliver involved the cocaine seized from his residence. Id. at 680. Roughly six months

later, he was tried for possession with intent to deliver in connection with the cocaine

seized from his car. Id. The Rashad court concluded that the second prosecution

violated the defendant’s double jeopardy rights because the “possession of cocaine in his

home and in his automobile constituted a single transaction.” Id. at 680-81.

Farah argues that Rashad is similar to the facts of his case, however his reliance

is misplaced. The holding in Rashad has been limited by subsequent decisions of this

Court. See United States v. Forman, 180 F.3d 766 (6th Cir. 1999); Murr v. United

States, 200 F.3d 895 (6th Cir. 2000). In Murr, we rejected the defendant’s argument that

Rashad compelled the conclusion that his double jeopardy rights had been violated when

he was prosecuted for narcotics offenses in the federal district court for the Eastern

District of Kentucky after pleading guilty to narcotics charges brought in the federal

district court for the Eastern District of Tennessee. Murr, 200 F.3d at 901. In rejecting

the defendant’s argument, we noted that Rashad is “limited to its unique facts, in that

‘the issue . . . was whether the defendant had committed one as opposed to two discrete

violations of the same statute, not whether the defendant was charged twice for the same

violation.’” Id. (quoting Forman, 180 F.3d at 769). As such, use of Rashad to resolve

double jeopardy questions is limited “to circumstances such as were present in th[at]

case.” Id. Here, the facts of Farah’s case are unlike those present in Rashad, thus its

application is inappropriate.

The Government argues that United States v. Johnson, 736 F.2d 358 (6th Cir.

1984) supports its contention, however the Government’s reliance on this case is

misplaced. The issue in Johnson concerned whether an individual could be confined for

civil contempt based on “anticipatory contempt” or refusal to testify at a future trial when

No. 13-6147 United States v. Farah Page 12

no trial date had been set. Id. at 360. There was no anticipatory contempt here as Farah

indicated in April of 2012 during the ongoing Adan proceedings that he would not

testify. Additionally, civil contempt is concerned with forcing the witness to purge

himself of the contempt, whereas criminal contempt is aimed at punishing the witness.

Johnson likewise fails to provide the Court with any guidance.

The most appropriate authority to begin with is that of Yates v. United States,

355 U.S. 66, 78 S. Ct. 128, 2 L. Ed. 2d 95 (1957), where the United States Supreme

Court vacated all contempt violations save for one concluding “the prosecution cannot

multiply contempts by repeated questioning on the same subject of inquiry within which

a recalcitrant witness already refused answers.” Id. at 73. On June 26, 1952, during the

first day of the petitioner’s cross examination in her trial charging violation of the Smith

Act, she refused to answer “four questions about the Communist membership of a

nondefendant and of a codefendant who had rested his case.” Id. at 68. She stated that

no matter the number of times she was asked “to identify a person as a communist, [she]

can’t bring [herself] to do it . . . .” Id. She was found guilty of civil contempt and

committed to jail. Id. On the third day of trial, she again refused to answer eleven

questions asking her to identify members of the Communist party. Id. at 69. The trial

court found her guilty of eleven separate criminal contempts. Id. In vacating all but the

first of the contempt charges, the Supreme Court held:

Even though we assume the Government correct in its contention that the

11 questions in this case covered more than a single subject of inquiry,

it appears that every question fell within the area of refusal established by

the petitioner on the first day of her cross-examination . . . . Having once

carved out an area of refusal [on June 26, 1952], petitioner remained

within its boundaries in all her subsequent refusals.

Id. at 73-74. Farah also relies on Yates, and argues the Government is “attempting to

multiply contempts by repeated questioning on the same subject matter of inquiry within

which Mr. Farah has already refused answers.”

Thus, based on the rule announced in Yates, at least with respect to Farah’s

conviction for violating 18 U.S.C. § 401(3), the appropriate question is whether Farah’s

No. 13-6147 United States v. Farah Page 13

criminal contempt for refusal to testify in April of 2012, and subsequent identical refusal

and conviction constitute improper contempt multiplication in contravention of the

double jeopardy clause. At the hearing in April of 2012, Farah indicated that he would

not testify for the prosecution in the “Adan case” when asked by the district judge on two

occasions. As in Yates, Farah “had flatly refused on [April 18, 2012] to answer any

questions and had maintained such a position. . . . Having once carved out an area of

refusal, [Farah] remained within its boundaries in all h[is] subsequent refusals.” Yates,

355 U.S. at 73-74. Farah’s refusal to testify was carved out in April of 2012 and his

subsequent refusals “fell within the limits drawn” at the April 18, 2012 hearing and “only

one contempt is shown on the facts of this case.” Id. at 74.

As such, Farah’s conviction for violating 18 U.S.C. § 401(3) violates Yates.

Farah’s 2013 conviction stems from his refusal in April of the previous year to testify in

the Adan case, conduct which he had already been charged and punished for in June of

2012. Farah’s contempt, like the petitioner in Yates, was continuing and the Government

could not tack on multiple punishments. While the Adan case was separated into

different trials, Farah’s testimony concerned the same subject matter–evidence of the

gang’s conspiratorial child sex trafficking activities. Just because a case has been

severed into separate trials does not provide the Government an opportunity to tack on

criminal contempts in this fashion. A defendant’s risk of re-incarceration and the

number of criminal contempts for the same refusal to provide testimony on the same

subject conspiracies should not be controlled by the nature of trial practice and court

docketing considerations. The Government’s argument that the contempts involve

separate transactions is unpersuasive.

While Yates is clearly dispositive of the issue, it should be noted that Farah fails

to elaborate on Yates and its progeny and the Government fails to address Yates

altogether. The case law in this area is surprisingly sparse and the courts that have

addressed this issue in similar contexts–although never quite factually on point with the

circumstances present here–are widely divergent concerning when the government has

improperly multiplied contempts in contravention of Yates or its reasoning. The cases

No. 13-6147 United States v. Farah Page 14

that are the strongest support for Farah include Baker v. Eisenstadt, 456 F.2d 382 (1st

Cir. 1972); United States v. Orman, 207 F.2d 148 (3d Cir. 1953); and People ex rel.

Amarante v. McDonnell, 100 N.Y.S.2d 463 (N.Y. Sup. Ct. 1950).

There are cases that appear to contravene Farah, however these cases are, for the

most part, either factually dissimilar in a significant way or make conclusions without

substantive factual and merits determinations. As such, the majority respectfully

disagrees with the dissent’s suggestion that “our sister circuits stand firmly against” the

conclusion reached herein concerning Farah’s double jeopardy rights. See In re Boyden,

675 F.2d 643 (5th Cir. 1982) (permitting multiple contempts for refusal to testify in

separate trials having a common origin because the trials involved different subject

matters, as well as because “there is no indication that appellant was called for the sole

purpose of being bludgeoned with contempt penalties . . . .”); In the Matter of Chase,

468 F.2d 128 (7th Cir. 1972) (allowing multiple criminal contempts when defendant

repeatedly refused to stand up during a lengthy trial in defiance of the district court’s

order to do so); United States v. Smith, 532 F.2d 158 (10th Cir. 1976) (allowing two

criminal contempts for the defendant’s refusal to testify in two successive trials because

“the government had reason to expect that the defendant would testify” at the second

trial), United States v. Coachman, 752 F.2d 685 (D.C. Cir. 1985) (allowing two criminal

contempts where appellants refused to testify before the grand jury and later during the

trial because the appellants impeded two distinct government functions–investigation by

the grand jury and the court in trying the crime–“witness contemptuous conduct in both

operations defies governmental authority in each of those separate manifestations, and

is guilty of separate contempts”); United States ex rel. Ushkowitz v. McCloskey, 359 F.2d

788, 789 (2d Cir. 1966) (three criminal contempts upheld where appellants were

subpoenaed to testify before the grand jury and were convicted of contempt for refusing

to testify, and after each term of imprisonment, they would again be subpoenaed to

testify before the grand jury, refuse to testify and be found in contempt); United States

v. Costello, 198 F.2d 200 (2d Cir. 1952) (Yates relied on this decision, which permitted

No. 13-6147 United States v. Farah Page 15

one contempt per day during a United States Senate Crime Investigation Committee

investigation).

In the majority’s view, the dissent applies Yates too narrowly and ignores other

sister circuit authority supporting Farah’s position. See Baker v. Eisenstadt, 456 F.2d

382 (1st Cir. 1972); United States v. Orman, 207 F.2d 148 (3d Cir. 1953). For instance,

in Baker, the First Circuit Court of Appeals concluded that the district court improperly

multiplied contempts against the petitioner for refusing to testify concerning allegations

of judicial misconduct on the part of two judges of the Massachusetts Superior Court.

Id. at 384, 395. The Baker petitioner refused to testify on the subject inquiry and upon

later being re-called to the stand, again refused to testify. Id. at 385. Forty-five

substantive questions were asked, and the petitioner refused to answer each question and

was held in contempt for each refusal. Id. In concluding the multiple contempts were

imposed in error, the Baker court held:

We therefore conclude that petitioner’s contempt lay in refusing to testify

at all on the subject inquiry, that his communicated intent made it clear

at the outset that the authority of the Court was frontally challenged and

the seriousness of the offense fully delineated, and that the contempt

could not therefore be multiplied . . . by running through the entire list of

questions.

Id. at 393 (emphasis supplied); see also United States v. Orman, 207 F.2d at 160 (noting

that “where the separate questions . . . relate to but a single subject of inquiry, only one

penalty for contempt may be imposed” and “[w]here the witness has refused to give any

testimony, a committee cannot multiply his contempt by continuing to ask him questions

each time eliciting the same answer.”).

Farah clearly declined to testify concerning the Somali Outlaws’ sex trafficking

of minors in the Adan case in April of 2012. The dissent’s reliance on the fact that the

proceedings were “separate” is the improper focus and an improper application of Yates.

The fact that the proceedings were “separate” does not alter the fact that the proceedings

both dealt with the Adan indictment’s allegations relating to the gang’s conspiracy to

No. 13-6147 United States v. Farah Page 16

engage in the sex trafficking of minors–the topic to which Farah clearly indicated a

refusal to testify about in April of 2012.

The majority further rejects the Government’s contention and the dissent’s

agreement that Bullock v. United States, 265 F.2d 683 (6th Cir. 1959) is “the most

analogous binding precedent.” Bullock is distinguishable on the facts and therefore

provides no guidance to the Court. In Bullock, the defendant was a local resident who

was convicted twice for criminal contempt based on two separate instances of

obstructionist conduct in contravention of the district court’s orders requiring the

discontinuance of racial segregation in the local high school. Id. at 687-88, 695.

The defendant in Bullock was found in criminal contempt for “inciting the

citizens of Clinton . . . in a speech he made on August 29, 1956, to violate the [August

29, 1956] restraining order.” Id. at 688. Several months later, the defendant conspired

with others to “congregate [] in a threatening manner along the route to the” school in

order to intimidate the students, a direct violation of the district court’s September 6,

1956 permanent injunction. Id. at 687. In finding no double jeopardy violation, we held

that:

Under the Constitution [defendant] is not immune from prosecution for

contempt of court committed in November and December, 1956, simply

because he was found guilty of a similar contempt which occurred in

August, 1956. Successive and separate contempts are punishable as

separate offenses.

Id. at 695. Moreover, the defendant in Bullock was not sentenced to a term of

imprisonment for the first contempt. See id.

Bullock therefore has nothing to do with the type of contemptuous conduct at

issue herein and in Yates. That the reasoning in Bullock provides no assistance with

respect to resolving the double jeopardy question present here is demonstrated by the

Bullock court’s failure to cite to Yates altogether in reaching its conclusion. Bullock is

unlike the circumstances herein and in Yates; both involve the repeated and identical

refusal to testify to the same subject-matter in a case. As such, Bullock is simply

No. 13-6147 United States v. Farah Page 17

inapplicable and cannot be relied upon in resolving Farah’s double jeopardy claim

relating to Count Two.

Additionally, the manner in which this conviction came about is somewhat

troubling. An argument can be made that there was no reason to conduct the deposition,

other than to tack on additional punishment because the requirements of 18 U.S.C.

§ 3144 had not been satisfied before the district judge ordered the deposition in August

of 2012:

No material witness may be detained because of inability to comply with

any condition of release if the testimony of such witness can adequately

be secured by deposition, and if further detention is not necessary to

prevent a failure of justice.

18 U.S.C. § 3144.

In order for the district court to order a deposition of a material witness pursuant

to 18 U.S.C. § 3144, either the Government or Farah was required to demonstrate the

“testimony can adequately be secured by deposition, and that further detention is not

necessary to prevent a failure of justice. Upon such a showing the district court must

order his deposition and prompt release.” Aguilar-Ayala v. Ruiz, 973 F.2d 411, 413 (5th

Cir. 1992); see also United States v. Fuentes-Galindo, 929 F.2d 1507, 1510 (9th Cir.

1991) (concluding a standing order permitting a magistrate judge to order a § 3144

deposition without the requirement that either the government or the defendant first file

“an affidavit establishing that the circumstances contemplated in that section are present”

to be procedurally improper).

Here, there had been no demonstration that Farah’s testimony could be

adequately secured by deposition during the August 2012 hearing. Rather, Farah stated

he would not testify at any of the upcoming trials. As such, the Government did not

establish that Farah’s testimony could be “adequately secured,” because he stated that he

would never provide testimony for the prosecution in the Somali gang case. To tack on

more punishment for Farah’s refusal to testify for the prosecution in the Adan trials at a

compelled 18 U.S.C. § 1344 deposition apparently ordered outside of the statutory

No. 13-6147 United States v. Farah Page 18

requirements also appears to implicate due process considerations, notwithstanding

double jeopardy.

Next, we must consider whether the additional charge of obstruction or attempt

to obstruct the enforcement of the child trafficking laws under 18 U.S.C. § 1591(d)

makes this case fall outside of the parameters of the double jeopardy clause. The

Government maintains that because Farah was charged with violating Count Three,

double jeopardy is not implicated because his prior conviction did not include a

conviction for obstruction of the enforcement of the child sex trafficking laws.

Conversely, Farah argues that his conviction under 18 U.S.C. § 1591(d) cannot stand

because its violation required proof by the Government that Farah had also violated

18 U.S.C. § 401(3).

While Yates and its progeny were appropriate for determining whether double

jeopardy was violated based on impermissible multiple contempts, we must return to

Blockburger and its progeny and employ the “same elements” test to determine whether

Farah has twice been put in jeopardy where he was convicted of obstructing, or

attempting to obstruct the enforcement of § 1591(a) after having previously been

convicted of criminal contempt.

There is a strong argument that double jeopardy is not implicated and supporting

authority exists for this proposition. In United States v. Laurins, 857 F.2d 529 (9th Cir.

1988), the defendant argued during direct appeal that his convictions for obstruction of

justice, 18 U.S.C. § 1505, and for aiding, abetting, and causing contempt of court in

violation of 18 U.S.C. § 401(3), “were improper as double punishment for a single act.”

Id. at 542. The Ninth Circuit Court of Appeals rejected this argument concluding:

Although the same conduct was the basis for the two counts, proof of

contempt of court does not necessarily include proof of obstruction of

justice. As discussed above, 18 U.S.C. § 401(3) punishes the

disobedience of a court order; 18 U.S.C. § 1505 punishes corrupt

obstruction of a pending agency proceeding. Without actually disobeying

a court order, an individual could obstruct an IRS investigation by hiding

documents sought by the agency. It would also be possible to disobey a

No. 13-6147 United States v. Farah Page 19

court order without obstructing an investigation by a department or

agency of the United States, where no such investigation was pending.

Nor is there any evidence in either statute that Congress did not intend to

allow separate punishments. The consecutive sentences were proper.

Id. (internal citations omitted). Here, Farah’s conviction for obstructing or attempting

to obstruct the child sex trafficking laws requires proof that he (1) knew of the Adan case

and (2) obstructed or attempted to obstruct the enforcement or the prosecution of the

child sex trafficking laws by refusing to testify at a deposition intended for use during

the ongoing Adan matter. His contempt conviction required only proof that he disobeyed

a judge’s court order to testify.

However, Farah argues his double jeopardy rights were violated because the

Government was required to prove all of the elements of the contempt charge under

18 U.S.C. § 401(3) in order to prove the violation of 18 U.S.C. § 1591(d). While not

citing to the decision, it appears Farah is relying on Brown, 432 U.S. at 166 n.6, wherein

the Supreme Court held:

The Blockburger test is not the only standard for determining whether

successive prosecutions impermissibly involve the same offense. Even

if two offenses are sufficiently different to permit the imposition of

consecutive sentences, successive prosecutions will be barred in some

circumstances where the second prosecution requires the relitigation of

factual issues already resolved by the first.

Id. at 166 n.6. This argument can be rejected because the circumstances here are unlike

those discussed in Brown. See id.

Yet, Farah’s argument is not wholly without merit where the facts giving rise to

Farah’s convictions under both statutes are “interrelated,” as noted by the district judge

at the August 2012 hearing, thus it could be argued that the Government has violated the

rule announced in Yates, as well as the principles discussed in Brown by obtaining

multiple punishments for the same refusal “carved out” in April of 2012 by charging the

additional violation of 18 U.S.C. § 1591(d), which could have been tried in June of 2012.

However, neither Yates nor Brown appears applicable to the charges brought under

No. 13-6147 United States v. Farah Page 20

18 U.S.C. § 1591(d) for purposes of double jeopardy analysis. Moreover, there is no

authority for the proposition that Yates intended to bar the Government from exercising

its right to enforce the laws and punish those who obstruct its endeavors in this regard

separate and apart from its right to seek punishment for contemptuous conduct directed

at the court. As such, we conclude that Farah’s double jeopardy rights have not been

violated with respect to his conviction for attempting to obstruct the enforcement of the

child sex trafficking laws in violation of 18 U.S.C. § 1591(d).8

Because Farah can only demonstrate the violation of his double jeopardy rights

in part, we vacate his conviction only as to Count Two.

B.

Farah argues that the district court erred in denying his motion to dismiss Count

Three as defective because, as a mater of law, the government did not allege and could

not prove the required intent. The Government counters that the requisite mental state

for a violation of 18 U.S.C. § 1591(d) is “knowingly,” and since this mental state is

alleged in the indictment and the evidence at trial established same, Farah’s argument is

without merit.

Whether an indictment adequately charges an offense is a question of law subject

to de novo review. United States v. Hill, 167 F.3d 1055, 1065 (6th Cir. 1999). The

Notice Clause of the Sixth Amendment guarantees a defendant’s right to be informed of

the charges against him. United States v. Superior Growers Supply, Inc., 982 F.2d 173,

176 (6th Cir. 1992). An indictment is constitutionally adequate “if it, first, contains the

elements of the offense charged and fairly informs a defendant of the charge 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); see also United States v. Monus, 128 F.3d 376, 388

8

W hile we are troubled by the procedure within which the deposition was ordered, this is not

enough to implicate double jeopardy with respect to Count Three, particularly where, as here, the statutes

seek to punish different contemptuous conduct-directed at court business or directed at obstruction to the

enforcement of the child sex trafficking laws. See Laurins, 857 F.2d at 542.

No. 13-6147 United States v. Farah Page 21

(6th Cir. 1997). Under this standard, “[a]n indictment will usually be sufficient if it

states the offense using the words of the statue itself, as long as the statute fully and

unambiguously states all the elements of the offense.” Superior Growers Supply,

982 F.2d at 176.

Title 18 U.S.C. § 1591(d) states: “Whoever obstructs, attempts to obstruct, or in

any way interferes with or prevents the enforcement of [15 U.S.C. § 1591(a)] shall be

fined under this title, imprisoned for a term not to exceed 20 years, or both.” Farah

argues that 18 U.S.C. § 1591(d) requires that he act with a “corrupt” mental state and the

indictment merely alleged “knowing conduct.” However, Farah fails to convince the

Court, without any supporting authority, that Congress intended the omnibus provision

of 18 U.S.C § 1503 to apply to 18 U.S.C. § 1591(d), as he suggests. Moreover, Farah

ignores authority standing for the proposition that where a statute is silent as to the mens

rea requirement, the appropriate standard is whether the act is done “knowingly.”

Staples v. United States, 511 U.S. 600, 619, 114 S. Ct. 1793, 128 L. Ed. 2d 608 (1994);

United States v. DeAndino, 958 F.2d 146, 148 (6th Cir. 1992).

Here, the statute is silent, thus knowingly is the appropriate mens rea. Staples,

511 U.S. at 619; DeAndino, 958 F.2d at 148. The indictment charged that Farah

“knowingly did attempt to obstruct . . . the enforcement of Title 18 United States Code,

Section 1591(a)” on September 12, 2012. Farah was fully aware of the Adan matter;

having provided testimony to the grand jury on three separate occasions, found in civil,

as well as criminal contempt. Farah knew of the Government’s endeavors with respect

to the Adan matter, and knew that refusing to testify would impede the prosecution of the

case and the enforcement of the child sex trafficking laws. See Pettibone v. United

States, 148 U.S. 197, 208, 13 S. Ct. 542, 37 L. Ed. 419 (1893) (holding under

predecessor statute that “a person is not sufficiently charged with obstructing or

impeding the due administration of justice in a court unless it appears that he knew or

had notice that justice was being administered in such court.”). Farah was fully aware

that he was a material witness and the Government’s ability to establish its conspiracy

case, which included 30 defendants, many of whom most likely can only be identified

No. 13-6147 United States v. Farah Page 22

by voice with the help of Farah’s testimony, was dependent on his cooperation. As such,

Farah’s Sixth Amendment rights were not violated because the indictment fully informed

him of the charges.

Farah further asserts that § 1591(d) is constitutionally void for vagueness, both

in general and as applied to him. “The void-for-vagueness doctrine requires that [th]e

statute define the criminal offense with sufficient definiteness that ordinary people can

understand what conduct is prohibited and in a manner that does not encourage arbitrary

and discriminatory enforcement.” United States v. Bazazpour, 690 F.3d 796, 800 (6th

Cir. 2012) (internal quotations omitted). This argument likewise lacks merit. Farah’s

conduct in refusing to testify for the prosecution surely falls within the ambit of

18 U.S.C. § 1591(d). He knew that his conduct would interfere with the prosecution of

the Adan defendants and the Government’s enforcement of the child sex trafficking laws.

Farah has not demonstrated entitlement to relief on his second and third claims for relief.

C.

Additionally, Farah maintains that the district court erred in denying his motion

to compel the Government to produce evidence related to his fear of retaliation.

Specifically, Farah requested evidence related to gang violence and witness retaliation

and claims that this evidence might have enabled him to alter the proof in his favor. A

district court’s application of the rules of criminal procedure are reviewed for abuse of

discretion. United States v. Semrau, 693 F.3d 510, 529 (6th Cir. 2012). None of Farah’s

arguments have merit. Rule 16(a)(1)(E)(iii) is inapplicable because Farah could not

establish the items sought belonged to the Government. Moreover, Farah curiously

admits he had knowledge of some of the evidence, undermining his claim that Brady v.

Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) has been violated.

See Spirko v. Mitchell, 368 F.3d 603, 610 (6th Cir. 2004) (“[W]here the defendant was

aware of the essential facts that would enable him to take advantage of the exculpatory

evidence, the government’s failure to disclose it d[oes] not violate Brady.”)

No. 13-6147 United States v. Farah Page 23

In any event, we conclude the district court correctly determined that Farah was

not entitled to a duress defense. Whether a defendant has established a prima facie case

of duress is a question of law and on appellate review is reviewed de novo. See United

States v. Johnson, 416 F.3d 464, 468 (6th Cir. 2005) (in order to proffer duress defense,

a defendant must proffer some evidence of “an unlawful and present, imminent, and

impending threat of such a nature as to induce a well-grounded apprehension of death

or serious bodily injury.”) Here, there is an absence of record evidence demonstrating

satisfaction of the elements for a duress defense. Nor would the evidence undermine the

“knowing” mens rea element of 18 U.S.C. § 1591(d) requiring proof beyond a reasonable

doubt that Farah knew his conduct would interfere with the enforcement of the child sex

trafficking laws. Because Farah was not entitled to a duress defense, his argument that

the district judge erred in excluding expert testimony on street gang behavior requires no

further discussion.

Farah is not entitled to relief on claims IV through VI.

D.

In his final claim of error, Farah argues that the district court erroneously failed

to correct prosecutor misstatements of law and fact made during closing arguments

which denied him due process. We ordinarily review claims of prosecutor misconduct

de novo. United States v. Lawrence, 735 F.3d 385, 482 (6th Cir. 2013). Here, we

conclude that any purported misstatement of law did not “so infect[] the trial with

unfairness as to make the resulting conviction a denial of due process.” Darden v.

Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986). To satisfy this

standard, the conduct must be both improper and flagrant. Broom v. Mitchell, 441 F. 3d

392, 412 (6th Cir. 2006). This court considers four factors to determine whether a

prosecutor’s conduct is flagrant. Johnson v. Bell, 525 F.3d 466, 482 (6th Cir. 2008).

Specifically, the factors include: “(1) the likelihood that the remarks of the prosecutor

tended to mislead the jury or prejudice the defendant; (2) whether the remarks were

isolated or extensive; (3) whether the remarks were deliberately or accidentally made;

(4) the total strength of the evidence against the defendant.” Id.

No. 13-6147 United States v. Farah Page 24

During closing arguments, the Government argued that Farah’s conduct deprived

the jury, the court and the parties of material information. Specifically, at the conclusion

of his remarks concerning the proof required to establish guilt as to Count Three, the

prosecutor argued:

And in the United States defendants have the right to be

confronted by the witnesses against them associated with the actual

information.

So does it obstruct justice if witnesses, such as defendant in this

particular case, refuse to come in to testify as to the information that they

have? The material information that they have associated with criminal

acts of others.

The answer is yes, it does. It deprives a jury, it deprives the

Court, it deprives the parties of that material information, to make a

decision as to those offenses.

Defense counsel, arguing outside of the presence of the jury:

Judge, he just stated the reason – why this jury needs to know what a

deposition pursuant to 3144 is all about. Because now he’s saying that

his case has been obstructed because the defendants have been deprived

of his testimony, when in fact the defendants were not deprived of his

testimony because the trial has not yet occurred. He can still be called as

a witness. All that’s happened is Mr. Farah deprived himself of the

opportunity to be released by providing the testimony pursuant to 3144.

The district judge admonished counsel stating: “Don’t go down that line any more.

We’re going to finish this, see what the jury does, and then see if we need to have post-

trial motions.”

Here, even if the prosecutor’s arguments were improper, they were not flagrant.

Farah’s claim relies on a misunderstanding of the district judge’s decision to vacate his

conviction on Count One. The district judge vacated his conviction on Count One

because there had been no evidence at trial that Farah’s conduct resulted in the

interference with court business. While Farah’s persistent refusal to testify as a material

witness may not have interfered with court business, that does not necessarily lead to the

No. 13-6147 United States v. Farah Page 25

conclusion that his conduct did not interfere with the Government’s enforcement of

18 U.S.C. § 1591(a), as correctly concluded by the trial court.

Moreover, taken in the context of the entire trial, we cannot conclude that the

statements so infected Farah’s trial with unfairness as to deprive him of due process. The

prosecutor’s statements were isolated, occurring only twice during the entirety of his

closing argument. Additionally, the record demonstrates that the prosecutor was not

deliberately trying to mislead the jury as just prior to discussing the elements required

to prove a violation of 18 U.S.C. § 1591(d), he stated: “And, again, if the Court charges

you something different than what the United States says, be sure to follow the Court’s

instruction. This is what the United States anticipates the elements for the offenses will

be. Okay?” (Id. at 222.) Lastly, the evidence against Farah was sufficient to support his

conviction on Count Three based on the testimony that he had refused to testify at a

deposition for a prosecution directed at enforcing the laws of the United States.

Farah is likewise not entitled to relief on claim VII.

IV.

Based on the foregoing considerations, we AFFIRM Farah’s judgment of

conviction on Count Three, 18 U.S.C. § 1591(d), and VACATE Farah’s judgment of

conviction on Count Two, 18 U.S.C. § 401(3), and REMAND this matter for further

proceedings consistent with this opinion.

No. 13-6147 United States v. Farah Page 26

_________________

DISSENT

_________________

KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in

part. Long ago, the Supreme Court recognized that “no [person] can be twice lawfully

punished for the same offence . . . when a second punishment is proposed in the same

court, on the same facts, for the same statutory offence.” Ex parte Lange, 85 U.S. 163,

168 (1873). “Successive and separate contempts,” however, “are punishable as separate

offenses.” Bullock v. United States, 265 F.2d 683, 695 (6th Cir. 1959). In 2010, the

government indicted thirty members of the Somali Outlaws on sex-trafficking charges.

In 2012, Abdullahi Farah refused to testify at the trial of nine of the Somali Outlaws

named in the indictment. For his refusal, Farah was found guilty of criminal contempt,

in violation of 18 U.S.C. § 401(3), and given a sentence of four months of imprisonment.

A year later, Farah refused to testify again, this time at a deposition to be used in

different trials against the other twenty-one defendants. Once again, the government

indicted Farah for criminal contempt under § 401(3); he was found guilty and sentenced

to prison. In my view, these two convictions punished two different acts and did not

offend the Fifth Amendment. Because the lead opinion sees things differently, I

respectfully dissent from Part III.A.

I.

On April 16, 2012, the government was in the middle of trying nine of the Somali

Outlaws. See R. 2325 (Minute Entry) (Page ID #12374) (Case No. 3:10-cr-260). As part

of its case against those nine defendants, the government wanted to call Farah as a

witness to “identif[y] particular defendants” and “identif[y] particular defendants’

voices.” R. 23 at 6:20–22 (Apr. 18, 2012 Hr’g Tr.) (Page ID #74) (Case No. 3:12-cr-85).

Despite being held as a material witness “[d]uring the course of this trial at this time,”

id. at 7:17–18 (Page ID #75) (emphasis added), Farah refused to testify, and in response,

the government filed a motion to compel his testimony in the ongoing trial. See R. 2 at

No. 13-6147 United States v. Farah Page 27

1 (Mot. to Compel) (Page ID #2) (Case No. 3:12-cr-85). Two days later, the district

court held a hearing, found Farah in civil contempt for “refus[ing] to testify in the Adan

case,” and explained that “[i]f [Farah] [did not] change [his] mind, [he would] be held

in custody pending the duration of the Adan trial.” R. 23 at 17:25, 18:6–8 (Apr. 18, 2012

Hr’g Tr.) (Page ID #85, 86) (Case No. 3:12-cr-85). The district court further stated that

if Farah failed to “testify by the end of the Adan trial, [it] intend[ed] to hold [him] in

criminal contempt.” Id. at 18:12–13 (Page ID #86). On April 25, 2012, the government

filed a notice with the district court that “it closed its proof” in the trial of the first nine

Somali Outlaws.1 R. 7 at 1 (Notice Re: Material Witness) (Page ID #15) (Case No. 3:12-

cr-85). On June 7, 2012, the district court held a bench trial and convicted Farah of

criminal contempt in violation of 18 U.S.C. § 401(3). R. 34 at 9 (D. Ct. Op.) (Page ID

#159) (Case No. 3:12-cr-85). The district court then sentenced Farah to four months of

imprisonment. R. 39 at 2 (D. Ct. J.) (Page ID #178) (Case No. 3:12-cr-85).

On July 24, 2012, Farah filed a “Motion for Review of Detention Order,” arguing

in part that 18 U.S.C. § 3144 (the material-witness statute) does not permit the continued

detention of a purported material witness if “‘the testimony of such witness can

adequately be secured by deposition.”’ R. 41 at 7–8 (Mot. for Review) (Page ID

#192–93) (Case No. 3:12-cr-85) (quoting 18 U.S.C. § 3144). On August 23, 2012, the

district court granted this motion in part, ordering that a “deposition shall occur before

Farah’s sentence for criminal contempt expires in approximately October[] 2012.” R.

48 at 3 (D. Ct. Dep. Order) (Page ID #291) (Case No. 3:12-cr-85).

The district court scheduled Farah’s deposition for September 12, 2012. Once

again, Farah refused to testify, and the government filed a motion for Farah to be held

in civil contempt. R. 73 at 1 (Gov’t Contempt Mot.) (Page ID #471) (Case No. 3:12-cr-

85). The district court decided that

holding Mr. Farah in civil contempt at this stage of the proceedings is not

appropriate. The Court ordered the deposition of Mr. Farah in order to

secure his testimony and eliminate the need for his appearance as a

1

Ultimately, six of the defendants in this trial were acquitted of all charges; the other three

defendants were convicted of lesser-included offenses.

No. 13-6147 United States v. Farah Page 28

witness at future trials in the Adan case. Mr. Farah’s refusal to testify at

the deposition is tantamount to refusing to testify at each of the upcoming

trials. Therefore, Mr. Farah no longer needs an opportunity to purge

himself of the contempt . . . .

R. 80 at 5 (D. Ct. 9/20/12 Order) (Page ID #566) (Case No. 3:12-cr-85). If the

government wished to punish Farah for his continued refusal, the district court suggested

that the government “seek to charge Mr. Farah with criminal contempt” or “seek to have

the grand jury issue an indictment for obstruction of justice.” Id.

On October 3, 2012, the government followed this advice and secured an

indictment, which charged [Farah] with violating 18 U.S.C. § 401(3), among other

statutes, for “refusing to testify in the deposition held September 12, 2012” in

contravention of the district court’s order. R. 1 at 2 (Indictment) (Page ID #2) (Case No.

3:12-cr-196). On April 17, 2013, after a trial, the jury convicted Farah of violating

§ 401(3).

II.

On appeal, Farah argues that this second conviction for violating 18 U.S.C.

§ 401(3) runs afoul of the Double Jeopardy Clause. The majority agrees, holding that

“Farah’s refusal to testify was carved out in April of 2012 and his subsequent refusals

‘fell within the limits drawn’ at the April 18, 2012 hearing and ‘only one contempt is

shown on the facts of this case.’” Majority Op. at 13 (quoting Yates v. United States,

355 U.S. 66, 74 (1957). Certainly, Yates is the logical starting point; however, my

understanding of that case and its progeny leads me to the opposite conclusion regarding

Farah’s double-jeopardy claim.

In Yates, a defendant—Oleta O’Connor Yates—refused to answer eleven

questions over two days of one trial, and for these eleven refusals, she was convicted on

eleven charges of criminal contempt. Id. at 72. The Supreme Court overturned ten of

the convictions, holding that Yates’s refusal to testify during one proceeding constituted

a single, continuing contempt. Id. at 74. By overturning all but one of the convictions,

the Supreme Court made “clear that the prosecution cannot multiply contempts by

No. 13-6147 United States v. Farah Page 29

repeated questioning on the same subject of inquiry within which a recalcitrant witness

already has refused answers.” Id. at 73. After all, a witness could refuse to testify at a

proceeding entirely and would be guilty of only one contempt. Id. It would make little

sense to subject “a witness willing to testify freely as to all areas of investigation but one

. . . to more numerous charges of contempt than a witness unwilling to give any

testimony at all.” Id. Under Yates, therefore, a witness can “carve[] out an area of

refusal” and decline to answer any questions within the boundaries of her carve out, and

the government can bring only one criminal-contempt charge for refusing to testify at

that proceeding. Id.

This reading of Yates, limited as it is to a witness’s refusal to testify during a

single proceeding, is logical and uncontroversial. Courts across the country share this

view. See, e.g., United States v. Lach, 874 F.2d 1543, 1549 (11th Cir. 1989) (“Yates . . .

stands only for the proposition that repeated or serial refusals to answer identical or

similar questions in a single proceeding may not be used to establish multiple, separate

offenses for what is, in essence, a single, continuing contempt.”); Baker v. Eisenstadt,

456 F.2d 382, 385 (1st Cir. 1972) (vacating multiple contempt convictions when

defendant refused to answer forty-three questions in a single hearing); United States v.

Orman, 207 F.2d 148, 160 (3d Cir. 1953) (vacating multiple contempt convictions when

a defendant refused to answer multiple questions in a single hearing); United States v.

Costello, 198 F.2d 200, 204 (2d Cir. 1952) (A. Hand, J.) (vacating multiple contempt

convictions for refusing to answer multiple, related questions during a single hearing);

People ex rel. Amarante v. McDonnell, 100 N.Y.S.2d 463, 467 (N.Y. Sup. Ct. 1950)

(vacating multiple contempt convictions for refusing to answer seven questions before

a single grand jury).

Yates, however, does not stand for the proposition that a witness may refuse to

testify at two separate proceedings, against different defendants, and then have that

refusal count as a single, continuing contempt. In fact, our sister circuits stand firmly

against this understanding. In United States v. Coachman, 752 F.3d 685 (D.C. Cir.

1985), “[witnesses] were twice held in criminal contempt, first when they refused to

No. 13-6147 United States v. Farah Page 30

testify during a grand jury investigation, and again when they refused to testify at a trial

emanating therefrom.” Id. at 687. The D.C. Circuit “conclude[d] that a witness [was]

contemptuous in both operations [by defying] governmental authority in each of those

separate manifestations, and [wa]s guilty of separate contempts.” Id. at 691. In In re

Boyden, 675 F.2d 643 (5th Cir. 1982), a witness refused to testify at three separate trials

against three separate defendants allegedly involved in a single drug-smuggling

conspiracy. Id. at 644. The Fifth Circuit held that the witness committed three separate

offenses because “[i]n each case that Boyden was called to testify, the government had

to prove a separate offense [against the smugglers]. His testimony would overlap only

because of the cases’ common origin.” Id. Likewise, in United States ex rel. Ushkowitz

v. McCloskey, 359 F.2d 788 (2d Cir. 1966), a witness was called to testify before a grand

jury; he refused, was convicted of criminal contempt, and served his sentence. Id. at 789.

Once the witness finished his first sentence, the government called him to testify before

the same grand jury again, and the court upheld another criminal-contempt conviction.

Id. This cycle repeated again, and the Second Circuit upheld a third conviction because

although “[t]he conduct for which the sentences were imposed was similar conduct, . . it

was engaged in on three occasions separated from each other by appreciable periods of

time.” Id.

In my view, the record indicates that Farah defied two separate district-court

orders by refusing to testify at two separate proceedings and, thus, committed two

separate contempts. In April 2012, the district court ordered Farah to testify at “the Adan

trial” involving nine of the Somali Outlaws defendants. R. 23 at 18:6–8 (Apr. 18, 2012

Hr’g Tr.) (Page ID #86) (Case No. 3:12-cr-85). In September 2012, the district court

ordered Farah to testify at a deposition to be used in the four other Adan trials, involving

the twenty-one other defendants. The subject matter of Farah’s testimony might have

been similar at both proceedings, but, as in Boyden, “[h]is testimony would overlap only

because of the cases’ common origin.” 675 F.3d at 644. In each case, he would be asked

to testify to the particular defendants’ identity, actions, and voices. See R. 23 at 6:20–22

(Apr. 18, 2012 Hr’g Tr.) (Page ID #74) (Case No. 3:12-cr-85). Moreover, like the

No. 13-6147 United States v. Farah Page 31

defendant in Coachman, Farah defied “governmental authority in [two] separate

manifestations,” 752 F.3d at 691, and Farah refused to testify “on [two] occasions

separated from each other by [an] appreciable period[] of time,” McCloskey, 359 F.2d

at 789. As a result, I see very little in common between Farah’s case and Yates.

For me, the most analogous binding precedent is Bullock v. United States,

265 F.2d 683 (6th Cir. 1959), a case that the majority dismisses as “distinguishable on

the facts.” Majority Op. at 16. In Bullock, the district court had entered a preliminary

injunction, prohibiting individuals from interfering with the desegregation of the local

schools. 265 F.2d at 687. In late August 1956, the defendant—Frederick John

Kasper—“threatened to have the principal of the school ousted” if he allowed

integration, and Kasper “took other steps aimed at . . . restor[ing] segregation in the high

school . . . .” Id. For this behavior, he was found guilty of criminal contempt. Id. at 688.

A few months later, Kasper returned to his despicable ways, encouraging others to block

the entry of African-American students to the high school and to beat the minister

escorting the children to the schoolhouse door. Id. at 687. Shortly thereafter, the federal

government brought various charges against Kasper and others, including a second

criminal-contempt charge for Kasper. The jury convicted Kasper of criminal contempt,

and he challenged this conviction on double-jeopardy grounds. We bluntly stated:

“Under the Constitution Kasper is not immune from prosecution for contempt of court

committed in November and December, 1956, simply because he was found guilty of a

similar contempt which occurred in August, 1956.” Id. at 695. The same should be said

here. Farah’s conviction for refusing to testify at a trial in April 2012 involving certain

defendants does not, in my view, render him immune from a second prosecution for

defying a court’s order to testify at a deposition in September 2012 to be used in trials

involving a different set of defendants.

Importantly, I do not believe that that the government could call Farah as a

witness at the trial of one of those twenty-one other defendants and obtain a third

criminal-contempt conviction if Farah refused to testify. In refusing to testify at the

deposition, which would be used in the prosecution of the other twenty-one defendants,

No. 13-6147 United States v. Farah Page 32

Farah has carved out his zone of silence with regard to the prosecution of those

defendants. He has suffered the penalty for that silence. Calling Farah to testify at a

subsequent proceeding in the same prosecution would be hardly different than asking

him multiple questions regarding a certain subject in a single proceeding, a practice

prohibited by Yates. The key difference between the second conviction in this case and

this hypothetical third conviction is that in September 2012 Farah had never been ordered

to testify about that which he refused to testify. If the government called Farah to testify

in the actual trial of one of the twenty-one defendants who were the subject of the

deposition, that would no longer be true—the government would be seeking a

subsequent conviction for a continuing refusal to testify about a subject to which Farah

had already been ordered to testify.2

Moreover, the text of 18 U.S.C. § 401(3) makes this distinction clearer. A person

must “disobe[y] or resist[] [a court’s] lawful writ, process, order, rule, decree, or

command” to violate § 401(3). In the first order, the court compelled Farah to testify

regarding nine defendants and their crimes. When faced with this order to testify at those

defendants’ trial, Farah could not defy the order by refusing to testify to about twenty-one

other people under indictment and their crimes. In each case, the government needed

different information, and therefore, two orders were needed. Whether Farah made his

intent to defy the district court’s future orders known in advance is beside the point

because there was no second violation of the statute until he actually defied the second

order. Therefore, Farah’s refusals are two separate criminal actions.

Finally, it should be noted that in these types of cases, such “contumacious

refusal[s] to answer not only frustrate[] the inquiry but can destroy a prosecution,” as

may have happened in the first trial. United States v. Wilson, 421 U.S. 309, 316 (1975).

“Here it was a prosecution; the same kind of contumacious conduct could, in another

setting, destroy a defendant’s ability to establish a case.” Id. Given the evidence in the

2

In the abstract, this rule may allow the government to break its prosecutions into multiple trials

in order to obtain multiple contempt convictions. As a practical matter, I doubt that it would be in the

government’s interest to do so, and more importantly, there would likely be serious due-process concerns

if there were evidence that the government was manipulating its prosecution of cases merely to pile on

contempt charges against a potential witness. See Boyden, 675 F.2d at 644 (“There is no indication that

[the witness] was called for the sole purpose of being bludgeoned with contempt penalties.”).

No. 13-6147 United States v. Farah Page 33

record, it is clear to me that Farah frustrated the public’s right to every person’s evidence

on two separate occasions and placed himself in jeopardy of two separate charges. I see

no double-jeopardy problem, and for this reason, I respectfully dissent from Part III.A

of the majority opinion.