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United States of America v. Erik Shamsud-Din

January 31, 2012

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 moves in limine to exclude the government's expert witness, Dr. Sharon W. Cooper, M.D., pursuant to Rules 401, 402, 403, and 702 of the Federal Rules of Evidence, and the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Defendant alternatively requests that the Court conduct a Daubert hearing. For the reasons explained below, the Court denies Defendant's motion in limine to exclude the expert testimony of Dr. Cooper, and denies Defendant's alterative motion to conduct a Daubert hearing.

BACKGROUND

I. Underlying Allegations and Charges

On June 7, 2011, a federal grand jury returned a Superseding Indictment against Defendant, charging him with two counts of sex trafficking, in violation of 18 U.S.C. §§ 1591(a) and 2423(a). Count One charges Defendant with sex trafficking of a minor, in violation of 18 U.S.C. § 1591(a), from December 2006 through at least January 27, 2007. 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. See 18 U.S.C. § 1951(a); United States v. Chappell, --- F.3d ---, 2012 WL 163787, at *1-2 (8th Cir. Jan. 20, 2012). The offense must also affect interstate commerce. See 18 U.S.C. § 1591(a); United States v. Myers, 430 F. App'x 812, 815-16 (11th Cir. 2011).

Count Two charges Defendant 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). To establish 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 need not prove that Defendant knew or believed that Victim A was under the age of 18. See 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. Defendant 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 having sex. Defendant was romantically involved with Victim B. Both females gave Defendant all of their earnings from the prostitution. Defendant has pleaded not guilty to both Counts.

II. Dr. Sharon W. Cooper, M.D.

At issue in the present motion is the admissibility of the anticipated expert testimony of the government's expert, Dr. Sharon W. Cooper, M.D. Dr. Cooper, a retired Army colonel, is a licensed pediatrician who specializes in developmental, behavioral and forensic pediatrics, particularly as it relates to child sexual exploitation.*fn1 (See, e.g., Gov't Sur-Rep., Ex. A at 3.) Dr. Cooper has served as an expert witness in dozens of cases, including numerous in federal court. (Def.'s Mot., Ex. C.)

As described in her seventy page curriculum vitae, Dr. Cooper has practiced medicine for more than thirty years in various capacities, including approximately seventeen years as an Army physician, and more than a decade as faculty member of the Department of Pediatrics at the University of North Carolina, Chapel Hill. Dr. Cooper additionally has associated with a military medical school -- University of Health Services -- for over 20 years, and maintains an association with a Duke University-affiliated child abuse clinic, among other associations. (Id.)

Dr. Cooper has worked in the area of child exploitation since 1996. This area currently is her primary focus. She operates a professional corporation called Developmental and Forensic Pediatrics, and consults for the National Center for Missing and Exploited Children, where she is a board member. Dr. Cooper has testified before the U.S. Congress, Russian Parliament, and Italian Senate on the issue of child sexual exploitation, and, as described more fully below, has interacted with over 200 victims of sex trafficking, worked with hundreds of law enforcement officers on the subject, and been heavily involved in reviewing literature and studies relating to all areas of sexual trafficking.

III. Government's Rule 16 Notice

On October 14, 2011, pursuant to Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure, the government provided notice to Defendant of its intent to call Dr. Cooper as an expert witness at trial. (R. 92, Ex. A.) The government states that it "expects that Dr. Cooper will be qualified to testify as an expert on common dynamics that occur in the operation of sex trafficking," including the following topics:

P Topic No. 1: "The typical means sex traffickers use to target, recruit, manipulate, and maintain adult and minor victims." (Id.) According to the government: "Dr. Cooper will testify about how there are different types of sex traffickers that use different methods to recruit and maintain the women who work for them. Particularly relevant to this case will be Dr. Cooper's testimony about how 'finesse pimps' use romance and the notion of a better life to recruit victims." (Gov't Resp. at 2.)

P Topic No. 2: "The contributing factors that can make adult and minor victims more susceptible to influence by sex traffickers." (R. 92, Ex. A.) The government explains that: "Dr. Cooper will testify about 'compliant victims' who continue to work for the sex trafficker, even without the threat of physical force, because they have nowhere else to go. Dr. Cooper will testify that this is particularly common with respect to children who have run away from home. She will also testify that juveniles have a more immature brain that makes them easier to convince to stay with the sex trafficker." (Gov't Resp. at 2.)

P Topic No. 3: "The common means that sex traffickers use to maintain control over victims' actions and to prevent victims from leaving the relationship." (R. 92, Ex. A.) The government proffers that: "Dr. Cooper will testify about the methods that a 'finesse pimp' uses to maintain control over his victims. These methods include romance, making the victim feel special, and providing a better life than the victim could maintain on her own. In this area, Dr. Cooper will also testify about the mental health issues that can cause a victim to continue to relate to her sex trafficker, even years after having escaped the world of sex trafficking. Dr. Cooper will also testify about how common it is for victims to feel guilt about getting the person who trafficked them into trouble." (Gov't Resp. at 2.) P Topic No. 4: "Other information about the subculture of sex trafficking, including the meaning of certain terms such as 'bottom bitch,' 'out of pocket,' 'daddy,' and the 'track.'" (R. 92, Ex. A.) The government states that: "Dr. Cooper will define common terms used in the sex trafficking world. She will also testify as to the common dynamics between sex traffickers and their victims and between the multiple victims that may be working for a sex trafficker at a given time. For example, Dr. Cooper will testify about how a sex trafficker and his victims typically operate like a family, with the sex trafficker acting as 'daddy.' She will also explain how there is typically a 'bottom bitch,' which is the victim that is closest to the sex trafficker and highest in the pecking order." (Gov't Resp. at 3.)

With its notice, the government additionally provided Defendant with (1) Dr. Cooper's curriculum vitae; (2) information about a textbook that Dr. Cooper co-edited and co-authored; (3) a list of legal cases in which Dr. Copper has participated from 2006 to 2011; (4) transcripts from Dr. Cooper's testimony in three previous cases; and (5) court orders from district courts holding that Dr. Cooper is qualified to testify as an expert on similar topics.*fn2 (Id.)

IV. Defendant's Motion

On October 26, 2011, Defendant filed the present motion in limine seeking to exclude the expert testimony of Dr. Cooper. (R. 92.) Defendant argues that the Court should bar the anticipated expert testimony of Dr. Cooper because it is irrelevant and ...


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