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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff, CR. NO. 17-20274

v. HON. BERNARD A. FRIEDMAN

JUMANA NAGARWALA (D-1),

FAKHRUDDIN ATTAR (D-2),
FARIDA ATTAR (D-3),
TAHERA SHAFIQ (D-4),
FARIDA ARIF (D-5),
FATEMA DAHODWALA (D-6),

Defendants.
________________________________________/

DEFENDANT JUMANA NAGARWALAS REPLY TO GOVERNMENTS

RESPONSE TO DEFENDANTS MOTION FOR REVOCATION OF
DETENTION ORDER [DOC # 92]

NOW COMES Dr. Jumana Nagarwala, M.D., by and through her attorney,

Shannon M. Smith, and hereby submits her Reply to the Governments Response

to Defendants Motion for Revocation of Detention Order [Doc # 92].

I. COUNTER-STATEMENT OF FACTS

Dr. Nagarwala disputes the Governments description of khafz and female

circumcision as it applies to any procedure that Dr. Nagarwala may have

performed. The facts of this specific case, including Dr. Nagarwalas specific

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actions, will be determined at trial. While the Government relies on generalized

news media accounts about FGM regarding other cultures and from other places

around the world, those unsupported news accounts are neither accurate nor

relevant to this case.

A. News Articles Should Not Be Considered By This Court In

Determining Pre-Trial Release for Dr. Nargarwala

The Governments submission of news articles [Governments Exhibit A]

about FGM neither apply to Dr. Nagarwala, nor involve the specific facts in this

case. They are irrelevant and inapplicable.

The Governments submission of news articles in response to a motion for a

persons pretrial release is confusing, unhelpful to the Courts task, and is

unbecoming of the Department of Justice. The Justice Department issues press

releases in its indicted cases, as it did in this case. The news media then creates

news articles based on these Justice Department press releases. The Government

then cites those news articles to support its opposition to Dr. Nagarwalas pretrial

release; a circuitous, self-serving technique, to cite news articles spun from the

Governments press releases as evidence to detain an individual pending trial.

This Court should neither consider, nor rely upon those news articles in

making its determination of whether Dr. Nagarwala should be granted bond

pending trial.

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B. The Email From The Mosque Referencing The Australian

Conviction Is Not Persuasive That The Procedure In This Case
Was Illegal Under United States Law

Dr. Nagarwalas belief that the procedure she was doing was not illegal

supports why she denied performing FGM on children and denied having

knowledge of FGM being done in her community. In fact, when Dr. Nagarwala

became aware of the May 15, 2016 resolution sent out by the mosque, attached to

the Governments Brief as Exhibit B, Dr. Nagarwala concluded that the procedure

she was doing did not amount to FGM and that she was acting within the confines

of the law.

Moreover, the November 2015 FGM conviction in Australia, referenced in

both 3 of the Governments Exhibit B and in footnote 2 of the Governments

Response, involved an Australian statute that does not criminalize the same acts as

the Federal statute in the United States. Specifically, to violate 18 U.S.C. 116,

one must knowingly circumcise[], excise[], or infibulate[] the whole or any part

of the labia majora or labia minora or clitoris of another person who has not

attained the age of 18 years[.] In Australia, however, it is illegal to excise[],

infibulate[] or otherwise mutilate[]1 the genitalia of a female. (Emphasis added)

Further, according to the Australian trial counsel, the presiding Australian trial

1
New South Wales Consolidated Acts, Crimes Act 1900 Sect 45,
http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s45.html (last visited July 17,
2017).

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judge ruled that the relevant definition of mutilates as used in the Australian

statute was broad enough to encompass activities causing any injury to any

extent. Comparatively, 18 U.S.C. 116 does not contain a similar catch-all

provision. As such, Australias law criminalizing FGM is significantly broader

than the United States statute in this case and therefore is distracting and irrelevant.

Moreover, the Australian Human Rights Commission has noted that while

there is some protection given to religious freedom in the Australian Constitution,

it is far from comprehensive.2 This is surely distinguishable from the protections

guaranteed by the First Amendment and Fourteenth Amendment in the United

States, which will be the subject of future litigation in this case.

As the Government acknowledges, Dr. Nagarwala is highly educated.

Governments Response, p. 20.3 Unlike the Governments contention, however,

Dr. Nagarwalas education, training and profession are not attributes that make her

alleged conduct nefarious. Instead, Dr. Nagarwalas extensive education allowed

her to make an informed determination as to whether or not the procedure she was

doing amounted to FGM.

The difficult task in this case will be focusing on the facts sub judice and not

assuming that what has been portrayed in the media from around the world

2
Australian Human Right Commission, Freedom of thought, conscience and religion of belief,
https://www.humanrights.gov.au/freedom-thought-conscience-and-religion-or-belief (last visited
July 17, 2017).
3
At the time of this writing, the Government had yet to formally file its Response. Therefore,
Defense Counsel is unable to cite to the Document Number, Page ID Number, etc.

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describes what happened in this specific case. The Government exacerbates the

issue when it submits and relies upon unsubstantiated and wholly irrelevant media

articles to this Court; the defense submits that the Government should be required

to rely on the facts of this case, and not a Mother Jones article, to defend its

position. Nevertheless, the facts of this case will be determined at trial and are not

what is before this Court today, given that the weight of the evidence against

defendant factor goes to the weight of the evidence of dangerousness, not the

weight of the evidence of the defendants guilt. United States v. Stone, 608 F.3d

939, 948 (6th Cir. 2010).

II. FACTORS TO CONSIDER REGARDING DETENTION

A. Danger to the Community: The Arguments Advanced By The

Government Are Not Relevant To The Instant Case, Given That
They Are Premised Upon Generalizations Of FGM Practices
Around The Globe And Do Not Apply Directly To Dr. Nagarwala.

Throughout the pendency of this matter, the Government pronounces facts

not relevant to this case. For example, in its Response, at p. 5, the Government

states:

Short term complications can include pain, risk of bleeding and

hemorrhage, shock, infection, sepsis and even death.

However, not one complainant in this case has suffered any such complication,

contrary to the Governments generalization.

Similarly, in its Response, at p. 5, the Government asserts,

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Long-term complications can include painful genital scars, menstrual

difficulties, decreased sexual pleasure, pain or tissue injury with
sexual intercourse, and complications with childbirth as well as
psychological risks including depression, anxiety and post-traumatic
stress disorder.

The Government then states that Dr. Nagarwala began performing FGM in

Michigan as early as 2005 and states the government estimates that Dr.

Nagarwala has performed FGM on at least 100 minor girls. Governments

Response, pp. 18-19.

Notably, in this case involving Dr. Nagarwala, not one of the more than

100 girls reported to a hospital with any long or short-term complication, as one

would expect if relying on the Governments contentions. Assumedly, the

Government is putting forth such information in an effort to show the harm FGM

may cause; however, such assertions are not relevant to the matter before the Court

when not one person has any documented complications outlined by the

Government.

Although the Government, in its Response, articulates some of the alleged

medical findings that will be central to the instant matter, the Government has not

provided one page of medical records to any Defense Counsel in this case, despite

the fact that the Indictment and arraignments occurred in April. Indeed, in

responses to inquiries made by Defense Counsel, the Government has continuously

represented that the medical records will be made available, yet, to date, no records

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have been provided.4 As a result, the defense is unable to refute the Governments

representations, when it is being denied the information the Government possesses.

Consequently, the Government has been able to pick and choose what information

is released to this Court. This leaves the defense in the unfair position of having to

leave the Governments representations uncontested, which is problematic given

that the Governments descriptions of the medical findings may not be accurate or

complete.

Undersigned Counsel makes the assertion regarding possible inaccuracies

based on the Governments representations and descriptions concerning Michigan

complainants. Governments Response, pp. 10-12. All of the Michigan

complainants have become the subjects of Child Protective Services (CPS) cases in

Oakland and Wayne counties. While the Justice Department in this case has failed

to turn over a shred of medical evidence, Counsel in the CPS proceedings have

received summaries of the Michigan doctors findings regarding the Michigan

complainants.

In its Response, the Government describes two of the Michigan

complainants to have had their clitorisescompletely removed, along with part or

all of their clitoral hoods and labia minora. Governments Response, p.12. While

4
Defense Counsel intended to file a Motion about the same; however, the latest e-mail from the
Government, sent on Friday, July 14, 2017, states the medical records will be provided next
week.

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Undersigned Counsel does not have copies of all the medical reports provided in

the CPS cases, a report that Undersigned Counsel reviewed regarding at least one

of these complainants does not state that condition. In fact, the medical documents

provided indicate that the examination of one of the complainants showed that her

clitoral hood appeared small and rudimentary, that the clitoral glans were not

visualized and not felt with palpation, and that the labia minor was not visible. The

doctor writes that these findings are consistent with FGM Type IIb (Emphasis

added). Further, the report, for that particular complainant, shows a lack of scaring

and a lack of evidence of any cutting, excision, or surgery. Clearly, the

Governments assertion of complete removal is not supported by medical

findings.5

The Government reasserts certain information in pleadings and in oral

arguments, while simultaneously withholding discovery from the defense. When

the Government makes claims like it estimates that Dr. Nagarwala performed

FGM on at least 100 minor girls, the Government is unable to support the assertion

and certainly has provided no discovery to support the claim. In fact, the

5
Notably, during a hearing in one of the CPS cases, Dr. Nazer, the Michigan doctor the
Government utilized to conduct the medical examinations upon the complainants, testified that
she has handled thirteen FGM cases and that the first time she handled an FGM case was in
April of 2017. Transcript of May 16, 2016 Preliminary Examination, In the Matter of IA, File
No. 2017-853352-NA, at p. 58. Clearly, all of Dr. Nazers experience stems from evaluating
girls for this instant case. The defense, therefore, will raise appropriate objections and issues with
respect to Dr. Nazers expertise and experience after full discovery has been received.

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Government states that they have only identified ten minor girls and that the

medical evidence is consistent with FGM. Governments Response, p. 18. There

is also absolutely no evidence to support the Governments statement that Dr.

Nagarwala cut the genitals of dozens of victims[,] as their Brief states.

Governments Response, p. 20.

B. Flight Risk: Dr. Nagarwala Is Not A Flight Risk, And It Is

Disingenuous For The Government To Withhold From The Court
All Of The Facts Surrounding Dr. Nagarwalas Planned Trip To
Africa.

While the Government states that [t]wo days after Dr. Nagarwala learned

that the FBI and HSI were investigating her for FGM.Dr. Nagarwala continued

with her international travel plans and went to the airport[,] this fact-selective

recitation is disingenuous. Governments Response, p. 3. Although the

Government acknowledges that Dr. Nagarwala made her international travel plans

before she became aware of the Federal FGM investigation, they fail to disclose to

this Court that Dr. Nagarwala also told HSI and CPS agents the specific details of

her travel plans. Dr. Nagarwala explicitly told Federal authorities and CPS workers

about her plans to visit her two eldest daughters in Kenya. She informed them

when she was leaving the country; and that her two minor children, ages 6 and 11,

and her husband of more than 20 years remained at their home in Michigan. Dr.

Nagarwala had clear intentions to return as evidenced by her round trip tickets and

her close family remaining in Michigan. Finally, while Dr. Nagarwala has no prior

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criminal history, if she intended to flee the country, it is unthinkable that she would

inform law enforcement the details of her supposed escape from justice.

CONCLUSION

Dr. Nagarwala is presumed innocent. The question before this Court is

whether conditions can be put in place that will reasonably assure Dr. Nagarwalas

appearance and insure the safety of other persons and the community. 18 U.S.C.

3142(b). While the length of time a case will take is not a factor enumerated in

3142 for the Court to consider when determining bond, it is certainly a relevant

issue to consider in this case. On information and belief, the Government will be

seeking further superseding indictments for other defendants based on target letters

received by members of the community and recent target letters sent to potential

defendants in Los Angeles, Chicago, and Minnesota. This case is particularly

complicated to defend due to the fact that Dr. Nagarwala speaks a foreign language

and much of the discovery received to date requires translation. The Government

has not provided any translations on the numerous hours of wiretap phone calls,

nor the many e-mails, texts, voice mails and other files from cell phone reports.

Dr. Nagarwala will need to spend an abundant amount of time listening to the tapes

and translating materials for Undersigned Counsel. This contributes to Dr.

Nagarwalas desire to be released so that she can defend herself in this case. This

case is important to not only Dr. Nagarwala, but also to the Dawoodi Bohra

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community as a whole. Dr. Nagarwala intends to vigorously defend this case and

show she has been wrongfully accused. There are sufficient conditions available to

this Court, like those placed on co-defendants, namely the Attars, that support

pretrial release.

Respectfully submitted,

Dated: July 17, 2017 /s/ Shannon M. Smith

SHANNON M. SMITH (P68683)
Attorney for Defendant Jumana Nagarwala

CERTIFICATE OF SERVICE

I certify that on July 18, 2017, I filed the foregoing document with the Clerk

of the Court through the ECF system, which will send electronic notification to all

counsel of record.

/s/ Shannon M. Smith

SHANNON M. SMITH (P68683)
Attorney for Defendant Jumana Nagarwala

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