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United States of America v. Erik Shamsud-Din

October 27, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ERIK SHAMSUD-DIN, DEFENDANT.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge:

MEMORANDUM OPINION AND ORDER

Defendant Erik Shamsud-Din has moved the Court pursuant to Federal Rule of Evidence 412 for the admission of evidence in this case regarding the victims' past sexual behavior. For the reasons discussed below, Defendant's motion is denied.

BACKGROUND

Count One of the Superseding Indictment charges Defendant Shamsud-Din with sex trafficking of a minor, in violation of 18 U.S.C. § 1591(a), from December 2006 through at least January 27, 2007. Count Two charges him with transporting a minor from Texas to Illinois on or about January 23, 2007, to engage in prostitution, in violation of 18 U.S.C. § 2423(a).

In order to establish a violation of Section 1591(a), the government must prove that Defendant recruited, enticed, harbored, transported, provided, obtained, or maintained Victim A, knowing or recklessly disregarding the fact that Victim A was a minor under the age of 18 and would be caused to engage in a commercial sex act. The offense must also affect interstate commerce. 18 U.S.C. § 1591(a). For a Section 2423(a) violation, the government must prove that Defendant transported Victim A, who was less than 18 years old, in interstate commerce with the intent that Victim A engage in prostitution. See United States v. Vasquez, 611 F.3d 325, 328 (7th Cir. 2010); United States v. Cox, 577 F.3d 833, 834 (7th Cir. 2009). The government does not have to prove that Defendant knew or believed that Victim A was under the age of 18 to establish a violation of this offense. Cox, 577 F.3d at 836-37.

The government represents that its evidence will establish that Defendant used the internet to advertise the prostitution services of two females, a juvenile (Victim A) and an adult (Victim B), and taught Victim B how to use the internet to advertise herself. He then traveled with these females across the country for the women to meet with individuals who responded to the internet advertisements for the purpose of paying to have sex. Both females gave Defendant all of their earnings from the prostitution. Both Victims are expected to testify at trial.

Defendant represents that he intends to defend this case, in part, by arguing that he was merely traveling with Victims A and B in this case and had no involvement in their prostitution activities. He seeks to admit evidence that both Victims A and B engaged in prostitution activities before and after they met him, and that both Victims prostituted at other times without the protection of a pimp. Defendant further seeks to admit evidence that another pimp trafficked Victim A before she met Defendant. As explained below, this evidence falls squarely within Rule 412 and is thus inadmissible at trial.

ANALYSIS

Federal Rule of Evidence 412(a) provides that in a criminal proceeding involving "alleged sexual misconduct," evidence "offered to prove that any alleged victim engaged in other sexual behavior" and "evidence offered to prove any alleged victim's sexual predisposition" is generally inadmissible at trial. Fed. R. Evid. 412(a). Rule 412, commonly known as the "rape shield rule," aims to "safeguard the alleged victim against the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details." Fed. R. Evid. 412 advisory committee's note. "By affording victims protection in most circumstances, the rule also encourages victims of sexual misconduct to institute and participate in legal proceedings against alleged offenders." United States v. Ramone, 218 F.3d 1229, 1235(10th Cir. 2000) (quoting Fed. R. Evid. 412 advisory committee's note).

Rule 412(b)(1) provides three exceptions to Rule 412(a)'s bar on sexual misconduct evidence in a criminal case:

A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence;

B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and

C) evidence the exclusion of which would violate the constitutional ...


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