(CN) – A man who pleaded guilty to conspiring to provide crack cocaine to a girl and pimping her must face trial, even though she may not remember the precise dates of the events, a federal judge ruled in Anchorage.
M.D., then 16, sued Josef F. Boehm in June 2009, seeking $5 million in punitive damages for civil rights violations, sexual trafficking and assault of a minor.
“In or about March 2003 until on or about December 2003 when plaintiff was a minor under the age of 16 years, defendant did knowingly recruit and entice plaintiff to engage in commercial sex acts,” M.D. says in her amended complaint.
It added: “Defendant conspired with others to provide [M.D.] with cocaine, cocaine base and other illegal substances with the intent of getting plaintiff addicted to drugs so he could control her and keep her within his grasp through threat of force and severe psychological coercion.”
Boehm pleaded guilty to “conspiring to recruit minor females to engage in commercial sex acts” and “conspiring to distribute cocaine base to minors,” U.S. District Judge John Sedwick wrote this week in denying Boehm’s request for partial summary judgment.
Boehm claimed M.D.’s affidavit was “a sham,” because the dates she provided the Anchorage Police Department were different from those in her lawsuit.
“Boehm contends that the affidavit is demonstrably a sham, because (M.D.) was questioned at length about her whereabouts on December 19 and 20 , and her deposition testimony demonstrates that she was not at Boehm’s hotel room on those dates,” the judge wrote.
Boehm claimed he did not victimize her “on or after December 19, 2003,” Judge Sedwick wrote in summarizing the issue.
D.M. gave her deposition to police in 2010, nearly 7 years after the underlying events.
Sedwick cited M.D.’s deposition in his Opinion and Order: “My deposition was taken in this case on or about June 4, 2010,” [M.D. said.] “During that deposition, I was asked when I had last seen Mr. Boehm and testified that I believed it was sometime in early 2004. I was then told by Mr. Boehm’s counsel that my memory must be faulty and that could not be true because Mr. Boehm was arrested on December 22, 2003, and [he] had been incarcerated continuously since that date.”
M.D.’s June 2010 deposition continued: “My memory was obviously wrong because I did not go to the jail to visit Mr. Boehm and if he was arrested on December 22, 2003, I could not possibly have seen him after that date. However, my attorney recently received hundreds of pages of documents containing police reports and other documents I had not previously reviewed. At the request of my attorney, I went to his office and reviewed those documents.
“I reviewed those documents with my attorney and his staff who found documents that reminded me that Mr. Boehm had been arrested on state drug charges on or about December 13, 2003. Boehm was released on bail on or about 16 or 17 December 2003. On December 18, 2003, I was staying with my friend Barry Sapp at a hotel in Anchorage and Mr. Boehm was at another hotel. I went to the hotel where Boehm was staying and I stayed there with him through to and including December 19, 2003.
“During that time, Boehm provided me with drugs in exchange for sex. I was pregnant at the time and Mr. Boehm always required some sexual act on my part before he would provide drugs. He required sex, not only with him, but with others so he could watch. After reviewing the documents, I believe the last date that I was provided drugs and forced to have sex with Mr. Boehm was December 19 and 20, 2003.”
Sedwick’s Order and Opinion continues: “In response, Boehm contends that the affidavit is demonstrably a sham, because (M.D.) was questioned at length about her whereabouts on December 19 and 20, and her deposition testimony demonstrates that she was not at Boehm’s hotel room on those dates. Boehm urges the court to disregard the affidavit and decide the motion based on (M.D.’s) deposition testimony.”
Citing 9th Circuit precedent on a “sham affidavit rule,” Sedwick wrote, “First, the district court must make a finding that the affidavit actually is a sham, and second, the inconsistency must be ‘clear and unambiguous.'”
Sedwick found that though M.D.’s deposition testimony was “far from clear and concise,” her memory of events “at or near the critical time” was “not very good at the time she was deposed.” He points out that “(M.D.) was so addicted to crack cocaine during the relevant time period that she used it during her pregnancy, and the State of Alaska took the baby born to (her) on February 2, 2004, from her based on neglect.”
Sedwick “declines to declare (M.D.’s) affidavit to be a sham,” and adds, “the jury will have to determine for itself whether (M.D.) was exploited by Boehm on or after December 19, 2003.”
A settlement conference will be held in September before trial is scheduled.