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United States v. Kokayi

United States District Court, E.D. Virginia, Alexandria Division

May 8, 2019

UNITED STATES OF AMERICA
v.
SEITU SULAYMAN KOKAYI, Defendant.

          MEMORANDUM OPINION

          Leonie M. Brinkema United States District Judge.

         After a two-day bench trial, the Court found the defendant Seitu Sulayman Kokayi guilty as to Counts 1 and 3 of the Indictment and took Count 2 under advisement. This memorandum provides additional findings to support the convictions announced in court as well as the findings supporting defendant's conviction for the offense charged in Count 2.

         I. BACKGROUND

         A. The Charge

         On November 8, 2018, a federal grand jury returned a three-count indictment charging Kokayi in Counts 1 and 2 with coercion and enticement of a minor, in violation of 18 U.S.C. § 2422(b), and in Count 3 with transferring obscene materials to a minor, in violation of 18 U.S.C. § 1470. See Dkt. No. 29. Specifically, the indictment charged that from August 2, 2018 and continuing through August 22, 2018, Kokayi used a facility or means of interstate commerce to knowingly persuade, induce, entice, or coerce a 15-year-old girl to engage in sexual activity for which any person can be charged with a "criminal offense" in violation of 18 U.S.C. § 2422(b). In Count 1, the underlying criminal offense was "to produce child pornography" in violation of 18 U.S.C. § 2251, Virginia Code § 18.2-374.1, and Minnesota Statues § 617.246, and in Count 2, it was "to engage in sexual relations, sexual contact and sexual acts with Kokayi, a twenty-nine-year-old man" in violation of Virginia Code § 18.2-371, D.C. Code § 22-3008, and Maryland Criminal Code § 3-307(a)(4) and (5).[1] Count 3 alleged that during the same period, Kokayi knowingly used a facility or means of interstate commerce to knowingly transfer and attempt to transfer obscene matter, specifically a live video depiction of his penis and him masturbating, to another individual who had not obtained the age of 16 years, knowing that said other individual had not attained the age of 16 years, in violation of 18 U.S.C. § 1470.

         B. The Evidence

         Very few facts were contested during the trial, in part because most of the evidence consisted of recordings of Kokayi and the victim's phone calls, Instagram messages, and the videotaped interviews of Kokayi and the victim. This evidence clearly established the following facts.[2]

         In the relevant period, Kokayi was a 29-year-old man living in Alexandria, Virginia with his wife and infant daughter. From 2009 until his arrest on August 23, 2018, he was a content developer at the University of Maryland University College, as well as a Quran teacher at a mosque in Washington, D.C. It was in the context of Quran lessons that Kokayi first met Fatiya, the 15-year old victim who had immigrated to the United States in 2012. She joined Kokayi's Quran class shortly after her arrival in the United States, switched to a different Quran instructor for a time, but returned to Kokayi's class when she was 14 years old.

         Kokayi grew close with Fatiya's family and was trusted by Fatiya's father to drive her and her older sister to and from their Saturday Quran class. At some point, the student/teacher relationship between Fatiya and Kokayi changed. On August 4, 2018, Fatiya and her sister traveled to Minnesota to visit family and Kokayi was asked by her father to drive the two girls to the Baltimore airport. Between Fatiya's departure to Minnesota on August 4 and Kokayi's arrest on August 23, Fatiya and Kokayi called each other 256 times and talked for over 32 hours. The two also spoke over FaceTime, a video chat application available on most iPhones, at least 43 times. Audio recordings and transcripts of these phone calls admitted into evidence revealed graphic sexual conversations and activities between the defendant and the victim. Fatiya was 15 years old at the time.

         On August 9, Kokayi and Fatiya first spoke about how "things changed" between them and how their relationship had evolved beyond that of a teacher and student, with Kokayi wondering, "Who knows, like, maybe you'll touch me or something like that, and then, I don't know, I'm just throwing it out there, right? And like, that's gonna like, escalate, and right?" GX29. And escalate it did. Kokayi asked if Fatiya had thought about "[scenarios or situations where things could happen," "things" like kissing. Id. In a call the following night, Fatiya blamed Kokayi for the inappropriate turn their relationship had taken: "This is your fault, I was innocent." GX32.

         On August 11, the two played a game in which they listed the three things they would do to the other if they were together. GX33. Fatiya said first they would kiss, then cuddle, but she was hesitant to say the third thing. Kokayi repeatedly asked her what the third thing would be until she finally answered by spelling out "S...E...." Id. She never added "X" because Kokayi immediately asked, "So, how are we going to make this happen?" and then asked whether she was "wet right now." Id. When she said that she was, he asked if they could FaceTime. Id. Later that night, when the two were speaking on the phone again, Kokayi said that he wanted to give Fatiya "an orgasm first" before starting her "lessons." GX34. The two then FaceTimed. Id. The following afternoon, Kokayi asked Fatiya whether she "actually [had] an orgasm, too?" GX38. When she said yes, he told her that he was "still really upset" because she had "put [him] on mute" while she orgasmed. Id. On August 19, the two discussed showering together, both in person and over the phone, GX52, and then proceeded to FaceTime while they both took showers, GX53. They also discussed how they should act when Fatiya returned home. Fatiya's father had asked Kokayi to pick her and her sister up from the Baltimore airport on August 23. Kokayi wondered if she would sit on his lap in the car, to which Fatiya responded, "Have you seen that thing?", which, given the context, the Court concludes was a reference to the defendant's penis. GX51.

         These phone conversations were intercepted during authorized FISA surveillance. Dkt. No. 33. To prevent Kokayi from meeting Fatiya at the airport, the FBI intervened and executed a search and arrest warrant on his home on August 23, 2018. He waived his Miranda rights and engaged in a voluntary interview with FBI agents shortly after his arrest. The video of this interview was admitted at trial. GX56. During this interview, Kokayi admitted to showering and masturbating simultaneously with Fatiya over FaceTime. The only two relevant factual issues Kokayi denied were that he intended to have sexual relations with Fatiya when she returned and that he knew she was under 16 years of age.

         That same day, the FBI met Fatiya at her relative's house in Minnesota. Fatiya was interviewed by FBI Child and Adolescent Forensic Interviewer Bonnie Fries, and the interview was videotaped and admitted into evidence at trial. GX67. In that interview, Fatiya stated that Kokayi knew she was 15 years old because, in addition to having documents which state her date of birth, she had told him that she would not be attending Quran class on her fifteenth birthday. She also described how she and Kokayi would talk over the phone and on FaceTime and how he would describe the sexual acts he wanted to do with her. For example, he told Fatiya how to move her clothing to expose her breasts and to "flash" her breasts at him over FaceTime. Id. He also instructed her to masturbate for him. She claimed that she pretended to masturbate by touching herself under her pants to show him over FaceTime. Fatiya also stated that she saw Kokayi's penis multiple times and that he was "doing stuff physically with his hands with his penis during these FaceTime sessions." DX1. She also said that she would often look away, but he would demand she look at the phone, and he told her they could get a hotel room to have sex once she returned to the D.C. area. GX67.

         II. ANALYSIS

         A. Counts 1 and ...


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