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United States of America v. Mamadou Barry

December 5, 2011

UNITED STATES OF AMERICA
v.
MAMADOU BARRY



The opinion of the court was delivered by: Schiller, J.

MEMORANDUM

A jury convicted Mamadou Barry under two federal statutes for calling in a false bomb threat against his daughter to Philadelphia International Airport. Currently before the Court are Defendant's post-trial motions for judgment of acquittal or, alternatively, for a new trial, and for dismissal of one of the two counts. For the following reasons, the Court will grant the motion for dismissal of one count, deny the motion for judgment of acquittal, and defer a decision on the motion for a new trial pending a hearing.

I. BACKGROUND

Hadiatou Barry, the daughter of Mamadou, was scheduled to fly to Jamaica to attend her foster mother's wedding on the morning of June 17, 2010. (Aug. 1, 2011 Tr. at 41.) On the evening before her flight, Hadiatou went to her parents' house to see her mother, Adama Barry. (Id. at 45-46.) During the visit, Adama mentioned that she planned to go to her native country of Guinea, and Hadiatou took away Adama's green card and passport to prevent her from traveling. (Id. at 46-47.) Hadiatou testified that she was concerned about her mother's safety in Guinea due to election-related violence, and that she thought at the time that Adama wanted her to take the papers. (Id. at 46-47, 57-58.) After Hadiatou left, however, Adama reported the incident to the police. (Id. at 101-03.)

Mamadou was not present during his daughter's visit with Adama, and Hadiatou testified that she did not speak to him before she arrived at the airport the next morning for her flight to Jamaica. (Id. at 48.)

Later that night, at approximately 9:39 p.m., a police dispatcher at Philadelphia International Airport received a telephone call from a man who said his name was Mohamed.*fn1 (Id. at 30-33; Gov't Ex. 1A [June 16, 2010, 9:39 p.m. Call Tr.].) The caller, whose voice was later identified as Mamadou's, stated, "I want to notify you with somebody have a bomb in his bag and traveling." (June 16, 2010, 9:39 p.m. Call Tr.;Aug. 1, 2011 Tr. at 49.) He added that the person carrying the bomb was a woman named Hadiatou Barry and that he thought she was traveling to Jamaica in the next week. (June 16, 2010, 9:39 p.m. Call Tr.) Mamadou did not mention during the call that Hadiatou was his daughter, and he refused to speak with a supervisor. (Id.) The call came from a number that Hadiatou testified was her father's business phone number. (Aug. 1, 2011 Tr. at 68.) Later the same night, at approximately 10:08, a police officer at Philadelphia International Airport received a second call from a man whose voice was later identified as Mamadou's. (Id. at 34-35, 49; Gov't Ex. 2A [June 16, 2010, 10:08 p.m. Call Tr.].) During that call, Mamadou provided Hadiatou's date of birth, "[j]ust to make it easy for you." (June 16, 2010, 10:08 p.m. Call Tr.) The call came from a blocked number that was subsequently traced to Mamadou's cell phone. (Aug. 1, 2011 Tr. at 105-06.)

Following these calls, Federal Bureau of Investigation ("FBI") Special Agent John Kirk determined that Hadiatou's flight was scheduled to depart from Baltimore/Washington International Airport ("BWI") the next morning. (Id. at 36-38.) Kirk briefed agents at BWI about the bomb threat early in the morning on June 17, 2010. (Id. at 39-40.) When Hadiatou arrived at BWI later that morning, she was approached by agents and asked to step aside while a dog sniffed her bag. (Id. at 43.) She was then questioned for 30 to 45 minutes before the agents permitted her to board her flight. (Id. at 43-44.) The agents did not find any explosives in Hadiatou's bag and determined that the threat was not credible. (Id. at 73-75.) Hadiatou testified that she never told anyone she had a bomb in her bag. (Id. at 45, 48, 68-69.)

On the same day, a detective for the Philadelphia Police Department made a recorded call to Mamadou to ask him about the bomb threat. (Id. at 80-81; Gov't Ex. 3A [June 17, 2010 Call Tr.] During the call, Mamadou expressed anger that Hadiatou had taken his wife's travel documents but denied that he had called in the bomb threats. (June 17, 2010 Call Tr.)

When Hadiatou returned from Jamaica, she was again interviewed by agents at BWI. (August 1, 2011 Tr. at 50.) At that time, she identified the voice on tapes of the two June 16, 2010 phone calls as her father's. (Id. at 49.) Hadiatou told the agents that she did not get along with her parents because they were strict Muslims who believed she was too Americanized. (Id. at 50-51.) She said that her father disapproved of her decision to attend school and her refusal to marry at the age of fifteen. (Id. at 51.) Hadiatou told the agents that she believed her father had made the false bomb threat to prevent her from going to Jamaica and as retaliation for a protection order that she had sought against him. (Id. at 59-60, 74.)

Mamadou was arrested by the FBI on November 8, 2010. (Id. at 83.) He again denied making the calls when questioned after his arrest, but at trial the defense did not dispute that Mamadou had made them. (Id. at 26, 83-84.) Following a two-day jury trial, Mamadou was convicted of conveying false information about a bomb threat under two federal statutes, 18 U.S.C. § 844(e) and 49 U.S.C. § 46507.

II. STANDARDS OF REVIEW

A. Rule 29

Rule 29 of the Federal Rules of Criminal Procedure provides that "[i]f the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal." Fed R. Crim. P. 29(c)(2). The court must view the evidence in the light most favorable to the prosecution and must uphold the verdict provided that any rational trier of fact could have found the defendant guilty beyond a reasonable doubt given the available evidence. United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005). Defendants face an uphill battle under this "highly deferential standard." United States v. Carbo, 572 F.3d 112, 119 (3d Cir. 2009). A challenge to the sufficiency of the evidence supporting a jury verdict "should be confined to cases where the prosecution's failure is clear." United States v. Smith, 294 F.3d 473, 477 (3d Cir. 2002) (internal quotation marks omitted). A court "must be ever vigilant in ...


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