On Jan. 14, Mohamed Omar, a 31-year-old Nashville resident who buys and sells used cars for a living, was released after serving almost four years off and on in a federal detention center outside of Bowling Green, Ky. That in itself is not unusual: 11 million people cycle through American jails each year, according to recent reports filed by the Vera Institute of Justice and the Prison Policy Initiative.
What's different about this case are the circumstances behind Omar's trial.
He hasn't had one.
On Nov. 8, 2010, Omar and his two brothers Abdifatah and Liban — both at least part-time Nashville residents, both members of Middle Tennessee's large Somali community — were taken into federal custody. The arrests stemmed from one of Tennessee's largest recent criminal investigations: an interstate, interagency effort that coordinated some 30 arrests in Nashville and Minneapolis.
According to the indictment filed by the U.S. Attorney's Office for the Middle District of Tennessee in November 2010, federal and state agencies uncovered evidence that an organized crime ring was profiting from a cross-country pipeline for stolen cars, credit-card fraud, and black-market credit-card theft machines. Most shockingly, the ring also allegedly moved young Somali women along a sex-trafficking conduit extending from Minnesota through Columbus, Ohio, to Tennessee.
The government's first indictment, revised three times throughout the course of this case, described three Minneapolis gangs as "operating in conjunction with each other": the Somali Outlaws, the Somali Mafia and the Lady Outlaws. The alleged members were primarily Somali, many here as refugees. And the government's formal theory was that the nature of the crime ring made most of those individuals guilty of conspiracy — conspiring to commit sex trafficking of a person under the age of 18, a charge that carries a maximum penalty of life imprisonment.
A senior Nashville district court judge, William J. Haynes, has questioned that theory. The many crimes listed on the indictment involve stolen credit card numbers, machines for swiping stolen credit cards, perjury, and various sex-trafficking-related offenses. Each individual faced, or currently faces, his or her own set of charges. Yet no single defendant is common to all the alleged crimes, or even a majority of them. The crimes have varying degrees of severity, and they occured at different times and in different states and cities. Some defendants, including Abdifatah Omar, have no connection at all to any overt act of sex trafficking. Even so, 24 of the 30 defendants were charged with co-conspiracy in that single venture.
That theory included, in 2010, and still includes, in 2016, the Omar brothers. Mohamed denies all charges against him, and in particular denies membership in any kind of Somali "gang," conspiracy or venture. His uncle, Hindi Omar, a skilled mechanic who operates a number of auto-repair services that cater to Nashville's sizable Somali population, has maintained the brothers' innocence from the first. Ever since the arrests five years ago, he has used his business proceeds to pay for their defense, acting as a father to his nephews.
The case is complex, and whether the Omar brothers are innocent or guilty is for a jury to decide. Therein lies the family's frustration. Since 2010, for varying periods and at different facilities, Mohamed, Abdifatah and Liban Omar have been detained off and on under the pretext that they pose a threat to the community or a flight risk.
Mohamed was released for one year in early 2013 without any violation of his release conditions; Abdifatah has been released since 2012 without incident. Both were released because Judge Haynes, who initially detained them, found that conditions could be arranged to ensure the safety of the community. The appellate court disagreed with regard to Mohamed, and he was snatched back into custody a year or so later.
As a result, until his release Jan. 14, 2016, Mohamed Omar had spent a total of 47 months in prison. He has yet to be convicted of any crime, let alone tried by a jury. His brother Liban is still incarcerated, totaling 48 months, and Abdifatah remains under supervision.
The extensive operation — a joint effort of the FBI, the Tennessee Bureau of Investigation, the St. Paul, Minn., police department, and the U.S. Immigration and Customs Enforcement agency's Homeland Security Investigations — was initially met with media approval and credulity, amid growing concerns about interstate sex trafficking. For two years after the initial arrests, in 2010 and 2011, the case made headlines, both nationally (in The New York Times, Huffington Post and USA Today) and locally (in the Nashville City Paper, The Tennessean and other media).
Since then, however, not a single final judgment of conviction for sex trafficking has been entered against any of the 30 individuals charged in this case. Only nine of the initial 30 have gone to trial. That trial took place in Nashville in 2012, and the initial results were mixed. On the conspiracy charges related to sex trafficking, the jury handed down a split verdict: six acquittals and three convictions. But in a surprise move, Judge Haynes overturned those convictions nine months later, granting acquittals and/or new trials.
"[The] fact that some sex-trafficking and obstruction of justice charges have been dismissed at the very least raises the specter that Government's case may not be as strong as the Sixth Circuit [Court of Appeals] was led to believe," U.S. District Court Judge Kevin Sharp wrote last month. That factored into his ruling to end Mohamed Omar's pretrial detention, more than five years after the initial round of arrests.
But Omar and his brothers could still face trial. Indeed, they say they hope so — to clear their names and records of charges for which they have, essentially, already served time.
The legal purgatory in which the Omars find themselves opens questions about how working families manage incarceration of their loved ones irrespective of legal guilt, how cases involving immigrant populations are handled — and about at what point pretrial detention becomes a sentence without a trial.
After driving almost two hours on a hot day in June 2015, Hindi Omar stopped at a gas station in Southern Kentucky. He walked out with his usual purchase: a pint of engine oil and two bags of corn nuts. These were his typical provisions on the long, regular trip he took to visit his nephew Mohamed.
Mohamed Omar was in Grayson County Detention Center, a federal prison outside Bowling Green. He had been incarcerated there since 2013. Before that, Mohamed had been imprisoned at two other facilities intended to house federal defendants pending trial.
Across the glass, through a two-way telephone, Mohamed thanked his visitor for coming. Hindi Omar, his uncle, paced nervously on the other side. At that point last summer, Mohamed had been imprisoned for 42 months without trial.
Grayson and Warren County federal jails, where the Omar brothers have been confined, are intended as temporary holding facilities for those who have not received a sentence. For that reason, these facilities restrict movement even more than most prisons. Both facilities are on lockdown, Liban and Mohamed explained, for 22 to 24 hours a day. Mohamed shared a cell with 13 or so other people during that time period.
Two or three times a week for short periods, inmates have the right to receive visitors. Hindi regularly made the drive. He sometimes dropped off underwear or other necessities because prison commissaries are the only stores available for inmates.
The men spend a lot of their time on their bunks watching the one television provided to each room, or just hanging around doing nothing. Correctional officers are given the difficult task of keeping peace. This picture is familiar to anyone — correctional officers, correctional officials, inmates, inmates' families, journalists or law enforcement— who has experienced America's penal system firsthand.
Back home in Nashville, to immigrant-rights groups and to defense attorneys, Hindi has made the same public appeal since at least 2014. Surrounded by a system he does not understand, he knew enough to ask that his nephews receive their day in court.
Hindi Omar and his family came to the U.S. from their home in Barawa, Somalia, a region about 200 miles from Mogadishu on Somalia's Pacific coast. The collapse of the Somali state in 1991 and the Somali civil war left the Omar family in the hands of gangs of roaming rebels. During the conflict, Hindi remembers being tied up with ropes in his own home and beaten.
The family members fled, only to scatter beyond borders. Abdifatah, the oldest, first spent time in London. Mohamed arrived in Atlanta in 1997. Hindi left for Kenya on a small fishing boat. Not everyone survived the trip, although Hindi did, only to end up stuck in a Kenyan refugee camp along with tens of thousands of other Somalis. He lived in that camp for seven years.
Although Hindi is their uncle, Abdifatah, Liban and Mohamed Omar call him "father" — partly because of the Somali custom of regarding father and uncle with similar deference, partly because Hindi had gradually assumed the responsibilities of their late father.
The members of the Omar family made their way to Chattanooga and then to Nashville. Hindi, a skilled mechanic, established a successful car-repair business. He became a respected member of the city's large Somali population, which today numbers more than 3,000 Somali or Somali-American residents. Bill Bass, a Nashville businessman who's known the Omar family for five years, says Hindi used his own success to give other Somali residents a hand up.
"People were always glad to see him," says Bass, who rented him property for his repair shops. "Fixing their cars and whatnot. Some of them couldn't pay well, and they didn't make much. A lot of them were on minimum wage jobs. He would let them pay him back when they could."
By 2009, Liban, then 19, and Abdifatah, then 25, were splitting their time between Nashville and Minnesota, where the older Omar brother got work with trucking companies. Mohamed was learning the auto sales business in Nashville, working a car lot near the corner of Murfreesboro Road and Elm Hill Pike.
And then came the week of April 26, 2009.
On Monday, April 28, 2009, Mohamed left work to eat at a Somali restaurant next door, he told the Scene last fall from detention. With him was a co-defendant in the case named Haji Salad, who had come down from Minnesota in a carload that included four other men and a young woman. None of the Omar brothers was ever actually in the ill-fated car.
When police checked the car outside the restaurant, they found that the young woman — henceforth known as Jane Doe 2 — had been reported as a runaway in Minnesota. Although what exactly happened remains in dispute, the traffic stop caused a commotion. Mohamed and others walked over to see what was happening.
"I came out," he said, "saw that people had been pulled over." Perhaps wary of the developing scene, an officer asked to see his license; he gave it. "So then I left," he said. "I never thought [that day] would be anything at all." No charges were filed; no ticket was issued.
Not so for the men in the car. They were charged with contributing to the delinquency of a minor. But what none of the men knew was that an interstate investigation was slowly gathering around them. Or that the prosecution's strategy would zero in on the Omars.
By November 2010, the investigation was finished, and arrest warrants had been issued for the Omars. The case would hinge upon the theory that all of the crimes alleged by the indictment — in several states, at several times, with seemingly no relation to overt sex trafficking — added up to a single sex-trafficking venture.
Two days before the encounter outside the restaurant, Liban Omar allegedly rented a hotel room for Jane Doe 2 alongside another defendant in Brooklyn, Minn. In a detention hearing conducted in December 2012, an FBI agent, assigned at that time to Nashville's Violent Crime Gang Task Force, testified that Liban can be seen on video paying for the room. He also stated that Liban's credit-card statements suggest his card was used.
Liban's Minneapolis attorney, Gary Wolf, countered during his detention hearing that Liban could have paid for the room and not had sex with Jane Doe 2. He argued that Liban may or may not have slept there, although Jane Doe 2 testified to the grand jury that "there was a man passed out or sprawled out on the bed that she thought was Mr. Omar."
Jane Doe 2's own credibility would come under fire when the defense discovered that her immigration documents had been falsified, and she might have been of consensual age during the three instances of sexual activity that came up at trial — raising the question of whether she had participated legally at any point.
According to the acting indictment, Liban's activities that night at the hotel in Minnesota are the most direct link he or any of his brothers has to any alleged act of sex trafficking. But because the government argued that every crime was linked to the conspiracy, the indictment threaded together a variety of items as proof of Liban's involvement: that Liban retrieved stolen credit cards from a bush outside a Nolensville Road business on behalf of some co-conspirators; that he had in his possession machines used for stealing credit cards. They also allege his role in an unprosecuted 2006 burglary of a Nashville business.
Liban also has a more extensive criminal history than his two brothers, including convictions for assault and possession of a firearm. But the relevant question for the case is whether his crimes add up to his participation in the conspiracy. He has been incarcerated in pretrial detention at Warren County Regional Jail for 48 months.
The facts laid out against Abdifatah are different. There is no evidence set forth for his involvement with any Jane Doe. Rather, in March 2010, he was accused of being a part of a group that used stolen credit cards to make purchases at a Toys R Us, a Macy's department store, a Waffle House, and other stores in Columbus, Ohio. A laptop computer with hundreds of stolen credit card numbers was also allegedly found in his possession. He is also alleged to have burglarized a Nashville business in 2006, and to have made a key to a stolen car which he and other co-defendants allegedly drove.
Most surprising, however, is the sparsity of evidence presented by the acting indictment against Mohamed Omar. He is indicted on the same 2006 burglary charge as his brothers, without any specific information given about his involvement. Presumably, more information on the burglary charge would be given at a future trial, should there be one.
But with the exception of a series of phone conversations recorded when some of the co-conspirators were in jail, and Mohamed's presence at the traffic stop, there is no evidence presented whatsoever on the current indictment against Mohamed Omar, who is facing potential life imprisonment and who has served 47 months of pretrial detention. He did not transport Jane Doe 2 to Nashville. He was never in the car with Jane Doe 2.
Transcripts of those jail recordings run more than 40 pages and cannot be quoted in full. But this exchange, between Liban and Mohamed, was offered by the government to support the theory that Mohamed was actually the ringleader:
Mohamed: They even know that you are behind everything.
Liban: Me?
Mohamed: Yes.
Liban: Who told you that?
Mohamed: You just keep saying who told you? Who told you? It was on TV.
Liban: You are lying.
Mohamed: I swear to God, I'm not lying.
As well as this one:
Mohamed: What did I tell you that day? Didn't I tell you to leave, stupid? Do
you remember?
Salad: Yeah, man. You are the one that put us there.
In another recording, made after Liban had been jailed for violating his probation by going to Minneapolis and possessing a firearm, he and Abdifatah (nicknamed "British") supposedly discuss talking to Jane Doe 2's parents:
Liban: We will talk to her family. Her family will be talked to.
To British: You are going to talk to her family; right?
British: Yes, I am calling them right now.
Liban: We will talk to the girl's family. There you go.
The government contends that these recorded phone conversations, among others, prove that Mohamed and Liban plotted to obstruct Jane Doe 2's parents from coming to Nashville. More generally, the government argues that they show how central Mohamed was to the conspiracy.
"Sometimes," Mohamed said on the telephone last fall from detention, "I don't feel myself, I don't feel who I was, what life I had. When I remember all of this, I get burned inside. ..."
The government's charge of a single sex-trafficking venture, with Mohamed as the "common thread," is based on the relevant bit of criminal code for sex trafficking, 18 U.S.C. § 1591. By that statute, a venture is defined as "any group of two or more individuals associated in fact, whether or not a legal entity." It's a decidedly vague formulation, and that vagueness is one reason this case has been so plagued with difficulty.
Generally speaking, conspiracy charges are prosecutorial tools. They allow the government to charge alleged gang members who may not directly participate in a given act — in this case, the act of sex trafficking — but who may know, be in reckless disregard, or even support that act financially through their alleged participation in the conspiracy.
But the government must show, as one appellate judge gently reminded the prosecution in March, "evidence of an agreement to accomplish an end" — not with regard to every single act, but certainly with regard to an end much larger than whatever was happening with Jane Doe 2.
That means proving links among the many different defendants and proving intent to be a part of the conspiracy — for each individual defendant. The jail conversations, according to the government, provide many of those links. Judge Haynes would disagree.
An indictment is only a formal accusation, not proof of wrongdoing. It is not a conviction. It is not, by itself, sufficient grounds to detain the Omar brothers for two to four years. The legal justification for incarcerating the Omars without trial hinges upon one word: dangerousness.
Beginning in the 1980s, dangerousness became a legal justification for detention before trial. The 1984 Bail Reform Act (18 U.S.C. § 3141) allows for a rebuttable presumption of pretrial detention if certain very high standards for detention have been met.
"The act requires the government to prove by clear and convincing evidence that no conditions of release would reasonably ensure that the defendant would appear for trial and not pose a risk to the community," the U.S. Bureau of Justice Statistics' February 2013 report on federal pretrial detention summarizes. That is, the government must prove that no conditions of release (e.g., electronic monitoring, or meetings with probation officers) will make sure the public is safe and that the defendant will show up to trial.
Risk or dangerousness to the community is then assessed by a number of factors, including the history of prior offenses and the gravity of the current charge. If this is proved, incarceration without trial can be justified.
"Many scholars believe that, even if dangerousness is permissibly considered at sentencing, it should never be a basis for detention prior to trial, because a person is presumed innocent and because there is not yet proof beyond a reasonable doubt that the person has committed a serious crime that suggests high risk," says Chris Slobogin, a professor at Vanderbilt University Law School who studies the issue. "Other scholars, myself included, believe that pretrial detention is permissible if there is strong proof of risk, but that the longer detention occurs, the stronger the proof must be. At some point, I would argue well before two years, the government cannot produce such proof in the typical case."
There are clear strengths to the use of risk assessment pretrial, notably as an alternative to bail. But the difficulty of assessing risk means that the principle will generate different results depending on the court applying it.
That happened in this case. Mohamed was initially ordered released after his arrest in 2010, then subsequently detained in early 2011 following additional evidence presented by the government, then released in 2013, then picked up again in 2014, then finally released last month with no apparent intention by the government to appeal, with 47 total months spent detained. None of these decisions came about because of Mohamed's conduct while free from imprisonment. The Omar family has expressed some trouble understanding why their civil rights to physical liberty can be tossed around in this way.
The only trial to take place in this case was on March 20, 2012, in Nashville, in proceedings distinct enough to make headlines. Jurors struggled to keep the many defendants straight, and some defense attorneys took to color-coordinating outfits with their clients so that the jury could match each defendant with the crimes alleged against him. In the end, the jury returned a split verdict as to the sex-trafficking related charges: six acquittals, three convictions.
In December 2012, however, Senior District Court Judge William J. Haynes Jr., after presiding over the entirety of the trial, issued a surprising decision known as a "post-judgment verdict of acquittal." In it, he overruled the jury's three convictions and granted three acquittals and/or new trials.
Judge Haynes ruled that the government had not proven a single, overarching venture to commit sex trafficking of a minor, as the indictment alleges. That is, Judge Haynes determined that the alleged individual crimes listed in the indictment did not add up to a single venture or conspiracy. While a jury could have found the defendants guilty of a conspiracy to commit sex trafficking of minors, he wrote, the government's proof established multiple ventures or multiple conspiracies rather than a single venture.
This distinction may seem technical, but it was very significant for the defendants. In the absence of a single criminal venture, each discrete act constitutes its own crime. Only those individuals directly responsible for the crime itself, even if operating as a kind of "mini-gang," can be punished.
This distinction, if held up by the appellate court, would potentially force the government to retry the case. It might also mean the charges against the Omar family will change considerably — particularly since Haynes' position was that the jailhouse recordings did not show conspiracy.
Indeed, Judge Haynes believed that the conspiracy had been broadened too far, implicating too many people. Quoting the U.S. Supreme Court, he cautioned that "as [the conspiracy] is broadened to include more and more, in varying degrees of attachment to the confederation, the possibilities for miscarriage of justice to particular individuals becomes greater and greater."
The main legal question, then, is what counts as evidence of a "venture to commit sex trafficking." Can an individual without direct ties to the sex acts but who allegedly helped finance the gang be convicted of the trafficking venture, for example? According to Assistant U.S. District Attorney Van Vincent, one of the prosecutors on the case, the federal statute is unclear on this question.
"There's absolutely no law on this," Vincent said, speaking over the phone this past winter. "The statute gives a definition of a venture, but how do you prove a venture?" The appellate court's judgment of Judge Haynes' decision will help determine how similar cases in the Sixth Circuit are decided from now on.
Meanwhile, Hindi Omar will continue to make the drive to visit Liban, stopping for corn nuts on his way, except during Ramadan. And the family will continue to wait for judgment. Nashville's Somali community does not look at him in the same way, he says. He does not understand why Liban remains in detention, or when he can expect to see him outside of the prison's visitation hours.
Yet Hindi has maintained a positivity and a belief in the divine throughout his family's troubles. On his way to visit one of his nephews, driving through northern Tennessee, Hindi swept his arm to the side and said, "In Barawa, you would see giraffes, monkeys, tigers — you would see animals everywhere." And yet, even after speaking reverently of his former homeland, he reiterated how grateful he is to the American people for giving him new life, for giving him a new sense of freedom.
There have been seven other dispositions in this high-profile case. Four defendants have been found guilty of access device fraud or related offenses — swiping the numbers off credit or gift cards with a black market machine and then storing those numbers — with sentences ranging from time served to 48 months imprisonment. Two defendants were found guilty of perjury or providing a materially false statement and were sentenced to 10 months imprisonment and time served, respectively. The seventh defendant was sentenced to time served for transporting in interstate commerce stolen goods valued at $5,000 or more. Time served — something the Omars know only too well.
For the Omar family, the potential grace of final judgment, of disposition, is nowhere in sight. Until the appellate court makes its decision regarding Judge Haynes' evidentiary rulings, the second trial cannot proceed; and that trial is likely to be scheduled far in advance given the number of lawyers who need to be available simultaneously for the defense. Judge Haynes, who presided over the entirety of the distinct court case thus far, recently retired. He transferred authority to District Court Judge Kevin H. Sharp. One of Judge Sharp's first decisions was to order Mohamed freed from pretrial detention. It should be interesting to see what happens next, and how much longer the appellate court takes to return their decisions.
Sitting at the Starbucks near the Vanderbilt campus last summer, Abdifatah, Mohamed's older brother, shared his readiness for trial and his frustration at the purgatorial wait his family has gone through. Though he now lives in Minnesota, Abdifatah has worked to provide information and phone numbers so the Omars' story can reach a broader audience.
"I want to just go to trial and get it done with," Abdifatah said. "The judge can't dismiss it, we got indicted by our peers — but that's not a trial, though. Let's go to trial, get it over and done with, keep it movin'.
"[It could be] another two years without a trial," he added. "That's seven years out of my life gone. Who's gonna give me back those seven years?"
Email editor@nashvillescene.com,
Eric Joseph Ritter is a Ph.D. student in the Vanderbilt philosophy department and a contributing freelance writer for the Scene.
