Govt Response Motion To Dismiss Count Six

2:17-cr-20274-BAF-DRG Doc # 200 Filed 10/18/17 Pg 1 of 25 Pg ID 1557
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA, No. 17-20274
Plaintiff, Hon. Bernard A. Friedman
v.
D-1 JUMANA NAGARWALA,

D-2 FAKHRUDDIN ATTAR,
Defendant.
/
GOVERNMENTS RESPONSE TO
DEFENDANTS MOTION TO DISMISS COUNT SIX (R. 171)
For the reasons stated in the governments brief, this Court should
deny Jumana Nagarwalas and Fakhruddin Attars joint motion to
dismiss Count Six of the Second Superseding Indictment.
DANIEL L. LEMISCH
Acting United States Attorney
s/ Sara D. Woodward
SARA D. WOODWARD
Assistant United States Attorney
211 W. Fort Street, Suite 2001
Detroit, MI 48226
Phone: (313) 226-9180
Dated: October 18, 2017 sara.woodward@usdoj.gov
1
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA, No. 17-20274
Plaintiff, Hon. Bernard A. Friedman
v.
D-1 JUMANA NAGARWALA,

D-2 FAKHRUDDIN ATTAR,
Defendant.
/
BRIEF IN SUPPORT OF GOVERNMENTS RESPONSE

TO DEFENDANTS MOTION TO DISMISS COUNT SIX (R. 171)
Defendant Jumana Nagarwala performed female genital
mutilation (FGM) on young girls for at least 12 years. In doing so, she
sexually abused her seven-year-old victims. Among other things,
Nagarwala digitally manipulated and penetrated the genitals of young
girls with her hands and a cutting instrument to remove portions of their
clitorises, clitoral hoods, and/or labia minora. Defendant Fakhruddin
Attar assisted Nagarwala by providing her with a medical office in which
she could engage in these offenses.
2
Count Six of the Second Superseding Indictment charges
Nagarwala and Attar with conspiring to transport two minor victims
from Minnesota to Michigan for the purpose of engaging in these abuses,
in violation of 18 U.S.C. 2423(a), (e). Defendants now move to dismiss
this count, asking the Court to usurp the role of the jury, disregard
factual disputes, and find as a matter of law that the exposure,
manipulation and mutilation of the genitals of young girls does not
constitute sexual activity for which any person can be charged with a
criminal offense.
According to Defendants, the government must prove, beyond a
reasonable doubt, that Nagarwala derived sexual gratification or
pleasure from her abusive contact. Defendants limited read of the
statute would work a wholesale change in federal and state laws
prohibiting the sexual abuse of minors. This claim must be rejected
because federal sex crime statutes expressly prohibit exactly this type of
conduct: the direct touching of the genitals of a minor with the intent to
degrade, abuse, or humiliate. And Michigans first degree criminal sexual
conduct statute similarly prohibits exactly this conduct, in direct
3
contradiction to Defendants claims. Defendants motion should be
denied.
I. STATEMENT OF FACTS
On February 3, 2017, co-defendants Haseena Halfal and Zainab
Hariyanawala brought their seven-year-old daughters (MV-1 and MV-2)
from Minnesota to Michigan for Nagarwala to perform FGM on their
genitals. Through text messages and telephone conversations,
Nagarwala directed Halfal and Hariyanawala to Attars medical facility,
and told them to enter the clinic separately. When they arrived, the clinic
was closed for the evening, and most of the lights were off. Separately
each mother and child entered the clinic, where they remained for
approximately 20 minutes. The mothers stayed in the waiting room while
Nagarwala and co-defendants Farida Attar and Tahera Shafiq took each
girl into an examination room.
In the exam room, Nagarwala removed each girls pants and
performed a procedure on her genitals. Later, MV-2 described the
procedure as painful, and said that she screamed. MV-2 said that there
was blood on the examination table, and that after the procedure, she
could barely walk, and that she felt pain all the way down to her ankle.
4
After cutting the girls, Nagarwala placed absorbent pads in their
underwear, and provided their mothers with perineal irrigation bottles1
to ease pain during urination.
A child abuse pediatrician performed a complete medical
examination on MV-1 and MV-2. The doctor concluded that both
examinations were consistent with the girls having been subjected to
genital mutilation. The doctor also found evidence of removed tissue,
lacerations, and scar tissue. Specifically for MV-1, the doctor found that
the childs labia minora had been altered or removed, and that her clitoral
hood was abnormal in appearance.
II. INDICTMENT
The grand jury returned an indictment charging Nagarwala and
Attar with crimes related to female genital mutilation and obstruction of
justice. (R. 16, R. 58, R. 153.) Specifically, on three separate occasions,
the grand jury found sufficient probable cause to charge Nagarwala and
Attar with conspiring to violate 18 U.S.C. 2423(a), which prohibits the
transportation of minors across state lines with intent that they engage
in any sexual activity for which any person can be charged with a
1Hospitals commonly provide perineal irrigation bottles to new mothers after child-
birth to ease the pain of vaginal tearing.
5
criminal offense. 2 This charge is alleged in Count Six of the Second
Superseding Indictment, and is the subject of Defendants joint motion.
(R. 153, 171.)
III. ARGUMENT
A. There is a factual dispute regarding the procedure that

Nagarwala performed on young girls.
In their motion to dismiss, Defendants rely on Federal Rule of
Criminal Procedure 12. (Def. Motion, R. 171, PgID 1343.) But Rule 12
does not authorize the relief that Defendants request. Defendants ignore
that there are significant factual disputes that must be resolved by a jury.
Dismissal under Rule 12 is appropriate only where the undisputed facts
establish that the offense charged cannot be proven as a matter of law.
United States v. Levin, 973 F.2d 463, 470 (6th Cir. 1992). That is not the
case here, and Defendants motion should be denied.
At trial, the government will show that Nagarwala used Attars
clinic to cut the genitals of numerous young girls, including MV-1 and
MV-2. During the procedures, Nagarwala used her hands and objects to
expose and penetrate the genital openings of her victims. She used a
2The government did not ask the grand jury to return an indictment charging
Haseena Halfal and Zainab Hariyanawala with violations of 18 U.S.C. 2423,
although there are sufficient facts to support this charge.
6
sharp tool to cut and remove skin from the clitoris, clitoral hood, and in
some cases, the labia minora. The procedure was painful and caused
blood loss. It was not a legitimate medical procedure, and Nagarwala did
not create medical records or bill for the procedure. Instead, Nagarwala
performed the procedure in secret, knowing that it was illegal and
medically unnecessary. The evidence will show that she performed FGM
on her victims to limit their sexuality as adults.
Defendants dispute these facts. At various points, Defendants have
denied engaging in any such conduct. Defendants specifically claim that
Nagarwala has never removed the clitoral hood or clitoris of any girls.
(April 17, 2017 Detention Hearing Transcript, R. 10, PgID 66.)
Nagarwala does not appear to dispute that she saw MV-1 and MV-2 at
Attars clinic on February 3, 2017 after the clinic was closed for the day,
but claims that she only wiped the childrens genitals and did not cut
them. (Id., PgID 70-71.)
These factual disputes matter. Most significantly, whether
Nagarwala exposed, manipulated, penetrated and cut the genitals of the
girls is the central issue in the case. Therefore, the Court cannot accept
Defendants invitation to determine the facts underlying the criminal
7
charge. [I]f a defendants pretrial motion requires the court to find facts
that make up the elements of the case which would normally be reserved
to the jury on trial of the general issue, the motion should be denied.
United States v. Cumberland Wood and Chair Corp., 1992 WL 317175,
at *3 (6th Cir. Oct. 27, 1992). [C]ourts evaluating motions to dismiss do
not evaluate the evidence upon which the indictment is based. United
States v. Landham, 251 F.3d 1072, 1080 (6th Cir. 2001) (citing Costello
v. United States, 350 U.S. 359, 362-63 (1956)); see also 41 Am. Jur. 2d
Indictments and Informations 219 (The court should not look behind
the indictment to see if it is supported by substantial evidence.).
Here, the grand jury has concluded that the government has
presented sufficient evidence to warrant a trial before a jury, and
Defendants should make their claims at that juncture. Defendants seek
to avoid this result by having the Court conduct the jury instruction
conference eight months before trial, rule their way on all points, and
then assess the sufficiency of the governments evidence. This premature
Rule 29 motion should be denied.
8
B. Exposing, manipulating, penetrating and mutilating

the genitals of minor females is sexual activity for
which any person can be charged with a crime.
Count Six of the Second Superseding Indictment charges
Nagarwala and Attar with conspiring to violate 18 U.S.C. 2423(a), (e).
For Defendants to be found guilty of this crime, the government must
prove that two or more persons conspired, or agreed, to violate 18 U.S.C.
2423(a). That offense requires, in turn:
1. A person knowingly transported an individual;
2. That the individual transported was under 18 years of age;
3. That the defendant intended the individual to engage in
any sexual activity for which any person can be charged
with a criminal offense;
4. That the transportation was in interstate commerce.
In their motion to dismiss, Defendants argue that female genital
mutilation is not any sexual activity for which any person can be charged
with a criminal offense. This phrase has two important clauses: sexual
activity, and criminal offense. There is no question that the criminal
offense to which the statute refers can be a state or federal crime. United
9
States v. Taylor, 640 F. 3d 255, 256 (7th Cir. 2011). The issue raised by
Defendants motion is the meaning of sexual activity.
Contact offenses, like penetration of the genitalia, qualify as
criminal sexual activity. The governments evidence at trial will prove
that Nagarwala penetrated the minor victims genitals. In doing so,
Nagarwala committed criminal sexual conduct in the first degree, in
violation of Michigan Compiled Laws 750.520b. And when Nagarwala
cut the genitals of her victims, she violated the federal criminal law
prohibiting female genital mutilation. 18 U.S.C. 116. Each offense is
sufficient under the law to support a conviction for 18 U.S.C. 2423(a),
(e).
1. Michigans criminal sexual conduct, first degree

(CSC-1) is any sexual activity for which any person
can be charged with a criminal offense.
MCL 750.520b states that a person is guilty of criminal sexual
conduct in the first degree [CSC-1] if he or she engages in sexual
penetration . . . [of a] person under 13 years of age. MCL 750b(1)(a).
Sexual penetration is defined within the statute as any . . . intrusion,
however slight, of any part of a persons body or of any object into the
genital or anal openings of another persons body. MCL 750.520a(r).
10
Penetration of the labia majora, or outer lips of the vagina, is sufficient
to constitute sexual penetration. People v. Bristol, 115 Mich. App. 236,
238 (1981) (evidence of penetration of the labia majora is sufficient to
sustain finding of penetration of the genital opening within the
meaning and intent of the statutory definition of sexual penetration).
Contrary to Defendants claim, to be guilty of this sex crime, there
is no requirement that the defendant seek sexual gratification. People v.
Lemons, 454 Mich. 234 (1997) (Sexual penetration can be for any
purpose); People v. Garrow, 298 N.W. 2d 627, 629 (Mich. App. 1980);
People v. Norman, 184 Mich. App. 255, 259 (1990); People v. Malcum,
1997 WL 33353628, *1 (Mich. App. 1997) (The act of CSC 1 is committed
when there is an intrusion or penetration into the genital or anal opening
of another person . . . regardless of the sexual purpose of the actor or lack
of such purpose.). Therefore, Nagarwala committed criminal sexual
conduct in the first degree when she intruded into the genitals of MV-1
and MV-2, who were both seven years old.
When Nagarwala cut the girls labia minora, clitorises, and/or
clitoral hoods, she necessarily separated the labia majora and penetrated
the genital openings of MV-1 and MV-2. Nagarwala, therefore,
11
committed first degree criminal sexual conduct under Michigan law.
Whether she was sexually gratified by this conduct is irrelevant to the
charge of CSC 1. And MCL 750.520b undoubtedly qualifies as sexual
activity for which any person can be charged with a criminal offense.
If the Court accepted Defendants argument that sexual
gratification is a required element of a sex crime, the consequences could
be far reaching. Many cases in the state of Michigan and elsewhere
involve abusive sexual contact by pediatricians, sports doctors, trainers
and the like. If the government is required to prove gratification,
prosecution of these cases would become significantly more difficult.
2. Female genital mutilation in violation of 18 U.S.C.

116 is any sexual activity for which any person can
be charged with a criminal offense.
Nagarwalas conduct also violated federal laws protecting children
from sex abuse. 18 U.S.C. 116 criminalizes female genital mutilation
generally, and specifically prohibits the circumcising, excising, or
infibulating of the whole or any part of the labia majora or labia minora
or clitoris of a girl who has not attained the age of 18 years. 18 U.S.C.
116(a). This violation qualifies as any sexual activity for which any
person can be charged with a criminal offense as required by Section
12
2423(a) because it meets the definition of sexual act provided in the
statute at 18 U.S.C. 2246.
In pertinent part, sexual act is defined to include the penetration,
however slight, of the anal or genital opening of another by a hand or
finger or by any object, with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any person, or the
intentional touching, not through the clothing, of the genitalia of another
person who has not attained the age of 16 years with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual desire of any
person. 18 U.S.C. 2246. As explained above, Nagarwala clearly
penetrated and intentionally touched the genitalia of MV-1 and MV-2. At
trial, the government will prove that she did this with the intent to abuse,
humiliate, harass or degrade the victims. Although an intent to gratify
the sexual desire of any person is one possible mens rea for this offense,
it is not the only one. Since the evidence will show an intent to degrade,
abuse and humiliate, the definition will be met.
i. Background on FGM: intent to degrade, abuse,

and humiliate.
In 1996, Congress passed 18 U.S.C. 116, the law criminalizing
female genital mutilation. The law specifically precludes the use of
13
custom or ritual as a defense to violating the statute. 18 U.S.C. 116(c).
U.S. Senator Harry Reid, the sponsor of the bill, explained to the Senate:
[t]here is no medical reason for this procedure. It is used as a method to
keep girls chaste and to ensure their virginity until marriage, and to
ensure that after marriage they do not engage in extramarital sex. 3
Worldwide, more than 200 million women and girls have been the
victims of FGM. 4 The international community widely condemns this
practice, long viewing it as an extreme form of gender-based violence
reflecting deep-rooted inequality, and a violation of the rights of
children. 5 The United Nations General Assembly passed a resolution in
2012 to intensify efforts to abolish all forms of FGM. 6 At least 59
countries worldwide, including the United States, have enacted laws
specifically outlawing female genital mutilation. 7
3 Congressional RecordSenate, July 26, 1996.

4 UNICEF, Female genital mutilation/cutting: a global concern (New York, 2016).
Available from
www.unicef.org/media/files/FGMC_2016_brochure_final_UNICEF_SPREAD.pdf.
5 World Health Organization Fact Sheet, February 2017, available from
http://www.who.int/mediacentre/factsheets/fs241/en/.
6 United Nations, General Assembly, Seventy-first session, Item 27 of provisional
agenda, available from

http://www.un.org/ga/search/view_doc.asp?symbol=A/71/209.
7 WHO Fact Sheet, supra note 2.
14
FGM has no health benefits.8 Girls and women that undergo FGM
face immediate and long-term health risks and complications. These can
include severe pain and bleeding, problems with urination, painful
genital scarring, decreased sexual pleasure and/or reduced sexual
functioning, childbirth complications, depression, anxiety, and post-
traumatic stress disorder. 9 The Sixth Circuit, for example, recognized
that FGM can result in the permanent loss of genital sensation in the
victim and the consequent elimination of sexual pleasure. Abay v.
Ashcroft, 368 F.3d 634 (6th Cir. 2004).
FGM produces long-lasting consequences to victims, including
physical pain and psychological trauma (abuse), inability to perform
basic biological functions (humiliate), permanent sexual dysfunction or
reduced function, and reduction of female sexuality (degrade).
Accordingly, 18 U.S.C. 116 qualifies as a sexual act as defined at 18
U.S.C. 2246.
ii. FGM qualifies as criminal sexual activity.
Defendants contend that for conduct to qualify as any sexual
activity for which any person can be charged with a criminal offense, it
8 Id.
9 Id.
15
must be done for the purpose of libidinal or sexual gratification.
Defendants proposed interpretation of 18 U.S.C. 2423(a) is erroneous
and not consistent with case law.
In general, federal sex crimes do not require that the government
prove that the defendant sought or obtained sexual arousal or
gratification. This makes sense, for at least two reasons. First, evidence
of the defendants arousal or gratification will frequently be unavailable.
This is especially true because much sex abuse occurs behind closed doors
and victims are shamed into secrecy. Moreover, the harm is done to the
victim irrespective of whether the defendant derived sexual gratification.
It is the touching and penetration that matter, not whether the
government can prove that the defendant derived sexual satisfaction
from it.
This principle that the government need not prove sexual
gratification as an element of a sex crime is seen throughout the federal
criminal code. For example, as noted, 18 U.S.C. 2246 defines sexual
act as the penetration, however, slight, of the genital opening of another
with intent to abuse, humiliate, harass, degrade, arouse or gratify the
sexual desire of any person. The statute sets forth six alternative ways to
16
prove intent, and only two of them relate to libidinal gratification. More
importantly, because the elements are written in the alternative, this
provision makes clear that touching the genitals of a minor female with
intent to degrade or abuse the minor qualifies as a sexual act under
federal law.
Numerous other federal sex crimes use the term sexual act as
defined in 18 U.S.C. 2246, including aggravated sexual abuse (18 U.S.C.
2241), sexual abuse (18 U.S.C. 2242), sexual abuse of minor ward (18
U.S.C. 2243), abusive sexual contact (18 U.S.C. 2244), travel with
intent to engage in illicit sexual conduct (18 U.S.C. 2423(b)), and
engaging in illicit sexual conduct in foreign places (18 U.S.C. 2423(c)).
None of these crimes require that the prohibited sexual conduct be for
the purpose of libidinal gratification. The same is true of sexual
contact as used in the United States Code, which also can be established
without any proof that the defendant derived sexual gratification. 18
U.S.C. 2246(3). Federal child pornography laws also do not require the
government to prove that a defendant sought or obtained sexual
gratification in order for the prohibited conduct and prohibited items to
qualify as sexually explicit. 18 U.S.C. 2251, 2252.
17
It is true that 18 U.S.C. 2423(a) itself does not use the term
sexual act, but instead prohibits any sexual activity for which any
person can be charged with a criminal offense. But it makes no sense to
say that a series of sexual acts as defined, somehow does not amount to
sexual activity as used in Section 2423. And the use of the word any
suggests that Congress intended sexual activity to be broader than
sexual act.
Moreover, several parts of Section 2423 prohibit illicit sexual
conduct, and the definition of illicit sexual conduct both includes and
is broader than sexual acts, which, as noted, do not require proof of
sexual gratification. 18 U.S.C. 2423(f). It defies logic to suggest that
Congress intended to require proof of sexual gratification in only one
subsection, the one at issue here, and nowhere else in the federal laws
against sexual abuse of minors.
In sum, Defendants claim is that under federal law, Nagarwalas
touching of the genitals alleged here may be a sexual act, it may be sexual
contact, it may be illicit sexual conduct, and it may be sexually explicit
conduct, but it cannot possibly be sexual activity. This contorted
construction of the applicable statutes should be rejected.
18
iii. Defendants proposed construction of the term

sexual activity is inconsistent with the
applicable case law.
In support of their position, Defendants cite to several cases which
they claim demonstrate a circuit split on the definition of sexual
activity. But those cases reflect the broader recognition that Congress
sought to reach as far as possible to protect children from sex crimes. The
Sixth Circuit has expressly endorsed treating sexual act as defined by
Section 2246 as synonymous with sexual activity as used in Section
2423(a). United States v. Lawrence, 187 F.3d 638 (6th Cir. 1999) (using
the statutory definition of sex act from 18 U.S.C. 2246 to define sexual
activity as used in 18 U.S.C. 2423(a) was not erroneous). The Seventh
Circuit has also found the terms to be synonymous. United States v.
Taylor, 640 F.3d 255, 259 (7th Cir. 2011) (holding that sexual activity
and sexual act are synonyms).
The cases from the Fourth and Ninth Circuits cited by Defendants
do not help them, as those courts have broadened the definition of any
sexual activity to include non-touching sexual crimes. United States v.
Fugit, 703 F.3d 248 (4th Cir. 2012) (We think the meaning of sexual
activity . . . is indeed plain and that this meaning extends beyond
19
interpersonal physical contact); United States v. Shill, 740 F.3d 1347
(9th Cir. 2014) (Declining to limit sexual activity to offenses involving
physical contact, and noting that Congresss repeated use of the word
any suggests that Congress intended the statutes reach to be broad).
Defendants rely most heavily on Fugit, but their reading turns the
case on its head. In Fugit, the Fourth Circuit rejected Judge Posners
reasoning in Taylor, finding that the definition of sexual act contained
in the statute was too narrow, because it only included contact offenses.
In an attempt to cast a larger net and include more criminal offenses as
predicates for Section 2423, the Fugit court reasoned that any sexual
activity included any conduct connected with the active pursuit of
libidinal gratification, and did not require interpersonal physical
contact. Fugit, 703 F.3d at 255. But nothing in Fugit suggests that the
Fourth Circuit intended to narrow the reach of federal law, and nothing
supports Defendants construction that because sexual activity includes
actions connected with libidinal gratification, sexual activity is
somehow limited to actions proved to have involved sexual gratification.
Instead, the Fugit court sought to expand the activity covered by the
statute to include non-touching offenses.
20
To resolve Defendants motion, this Court need not go as far as
Fugit or Taylor and decide whether any sexual activity includes non-
touching offenses. Here, Nagarwalas conduct involved the touching,
penetration, and cutting of the genitals of minor girls. As set forth above,
that is more than sufficient under the law and Defendants motion should
be rejected.
C. The rule of lenity has no application here.
Defendants claim that because they can conjure up a restrictive
interpretation of the statute charged in Count Six, it must therefore be
dismissed under the rule of lenity. They are wrong. As the Supreme Court
has made clear, the simple existence of some statutory ambiguity is not
enough. Muscarello v. United States, 524 U.S. 125, 138 (1998); see also
Smith v. United States, 508 U.S. 223 (1993) (The mere possibility of
articulating a narrower construction . . . does not by itself make the rule
of lenity applicable.). Instead, the principle of lenity has force only when,
having considered every source of insight into Congressional intent, the
court remains unable to do more than guess as to what Congress
intended. United States v. Wells, 519 U.S. 482, 499 (1997).
21
Here, there is no need to guess what Congress intended. Congress
intended as broad a reach as possible to protect children from sexual
abuse. Section 2423(a) is easily understood without invocation of the rule
of lenity and Defendants effort to create ambiguity do not suffice to
warrant application of that doctrine. See also 3 Sutherland Statutory
Construction 59:4 (7th ed.) (The rule comes into operation at the end of
the process of construing what Congress has expressed, not at the
beginning as an overriding consideration of being lenient to
wrongdoers.).
D. Section 2423(a) is not unconstitutionally vague.
Defendants also claim that 18 U.S.C. 2423(a) must be struck down
as unconstitutionally vague, because they could not have known that it
was illegal for them to conspire to mutilate, harm and abuse the genitals
of seven-year-old girls. But that statute clearly incorporates Michigan
law prohibiting the penetration of the genitals of young girls, without any
proof of sexual gratification or enjoyment. Defendants may not have
realized that federal law incorporated state law, but that does not make
the statute unconstitutionally vague.
22
Similarly, Section 2423(a) incorporates 18 U.S.C. 116 as a
predicate crime of sexual violence and abuse. Again, it is unclear how
Defendants can maintain that they had no notice that genital mutilation
was against the law, for Section 116 clearly prohibits the practice.
Moreover, other federal laws prohibiting the sexual abuse of minors also
do not require the government to prove beyond a reasonable doubt that
the defendant derived sexual gratification from such conduct. Laws
against the production of child pornography, possession of child
pornography, forcible sexual abuse of a minor and similar misconduct all
prohibit the abusive contact with the genitals of a minor without
requiring any proof that anyone derived any sexual pleasure from the
contact.
Defendants claim that allowing this charge to proceed to the jury
would open the door to standard-less and arbitrary prosecutions. But the
standard is cleardo not directly contact or penetrate the genitals of
minor females, and do not abusively cut and degrade them. There is no
danger of prosecutors sweeping otherwise innocent conduct within the
net of liability under Section 2423(a).
23
Defendants are simply wrong in claiming that the law requires
proof of sexual gratification, and the Due Process Clause offers them no
harbor.
IV. CONCLUSION
Defendants motion to dismiss Count Six should be denied.
Respectfully submitted,
DANIEL LEMISCH
Acting U.S. Attorney
s/Sara D. Woodward
SARA D. WOODWARD
JOHN NEAL
Assistant United States Attorneys
211 West Fort Street, Ste. 2001
Detroit, MI 48226-3220
MALISA DUBAL
AMY MARKOPOULOS
Trial Attorneys
Department of Justice, Fraud Section
1400 New York Avenue, NW
Washington, DC 20005
Dated: October 18, 2017
24
CERTIFICATE OF SERVICE
I certify that on October 18, 2017, I electronically filed this motion
response for the United States with the Clerk of the United States
District Court for the Eastern District of Michigan using the ECF system,
which will send notification of such filing to counsel of record, including
Shannon Smith and Mary Chartier.
/s/ Sara D. Woodward

Assistant United States Attorney
United States Attorneys Office
Eastern District of Michigan
25

Govt Response Motion To Dismiss Count Six

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2:17-cr-20274-BAF-DRG Doc # 200 Filed 10/18/17 Pg 1 of 25 Pg ID 1557

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA, No. 17-20274

Plaintiff, Hon. Bernard A. Friedman

D-1 JUMANA NAGARWALA,

deny Jumana Nagarwalas and Fakhruddin Attars joint motion to

dismiss Count Six of the Second Superseding Indictment.

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA, No. 17-20274

Plaintiff, Hon. Bernard A. Friedman

D-1 JUMANA NAGARWALA,

BRIEF IN SUPPORT OF GOVERNMENTS RESPONSE

Defendant Jumana Nagarwala performed female genital

sexually abused her seven-year-old victims. Among other things,

Nagarwala digitally manipulated and penetrated the genitals of young

clitorises, clitoral hoods, and/or labia minora. Defendant Fakhruddin

Attar assisted Nagarwala by providing her with a medical office in which

she could engage in these offenses.

Count Six of the Second Superseding Indictment charges

Nagarwala and Attar with conspiring to transport two minor victims

from Minnesota to Michigan for the purpose of engaging in these abuses,

in violation of 18 U.S.C. 2423(a), (e). Defendants now move to dismiss

factual disputes, and find as a matter of law that the exposure,

manipulation and mutilation of the genitals of young girls does not

According to Defendants, the government must prove, beyond a

reasonable doubt, that Nagarwala derived sexual gratification or

pleasure from her abusive contact. Defendants limited read of the

statute would work a wholesale change in federal and state laws

prohibiting the sexual abuse of minors. This claim must be rejected

degrade, abuse, or humiliate. And Michigans first degree criminal sexual

conduct statute similarly prohibits exactly this conduct, in direct

contradiction to Defendants claims. Defendants motion should be

On February 3, 2017, co-defendants Haseena Halfal and Zainab

Hariyanawala brought their seven-year-old daughters (MV-1 and MV-2)

from Minnesota to Michigan for Nagarwala to perform FGM on their

genitals. Through text messages and telephone conversations,

Nagarwala directed Halfal and Hariyanawala to Attars medical facility,

approximately 20 minutes. The mothers stayed in the waiting room while

girl into an examination room.

In the exam room, Nagarwala removed each girls pants and

performed a procedure on her genitals. Later, MV-2 described the

After cutting the girls, Nagarwala placed absorbent pads in their

underwear, and provided their mothers with perineal irrigation bottles1

to ease pain during urination.

A child abuse pediatrician performed a complete medical

examination on MV-1 and MV-2. The doctor concluded that both

examinations were consistent with the girls having been subjected to

genital mutilation. The doctor also found evidence of removed tissue,

hood was abnormal in appearance.

The grand jury returned an indictment charging Nagarwala and

Attar with crimes related to female genital mutilation and obstruction of

justice. (R. 16, R. 58, R. 153.) Specifically, on three separate occasions,

Attar with conspiring to violate 18 U.S.C. 2423(a), which prohibits the

criminal offense. 2 This charge is alleged in Count Six of the Second

Superseding Indictment, and is the subject of Defendants joint motion.

(R. 153, 171.)

A. There is a factual dispute regarding the procedure that

In their motion to dismiss, Defendants rely on Federal Rule of

Dismissal under Rule 12 is appropriate only where the undisputed facts

establish that the offense charged cannot be proven as a matter of law.

case here, and Defendants motion should be denied.

At trial, the government will show that Nagarwala used Attars

performed the procedure in secret, knowing that it was illegal and