Order on Pretrial Disclosure & Preservation — United States v. Aimee Marie Bock et al. (Doc. 111)

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Order on Pretrial Disclosure & Preservation filed October 7, 2022 as Doc. 111 in United States of America v. Aimee Marie Bock et al., Case No. 22-cr-223 (NEB/TNL), U.S. District Court for the District of Minnesota. The order recites that on September 13, 2022 a grand jury returned a series of six indictments charging more than 40 individuals in connection with an alleged massive fraudulent scheme to obtain and misappropriate more than $250 million in federal child nutrition program funds. It confirms the Government's obligation to disclose exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), sets expert disclosure deadlines of no later than 45 days and 30 days prior to any trial, and requires Rule 404(b) notice no later than 30 days prior to any trial. It also addresses Jencks Act materials and rough notes. It is signed s/ Tony N. Leung, United States Magistrate Judge.

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             CASE 0:22-cr-00223-NEB-TNL Doc. 111 Filed 10/07/22 Page 1 of 8




                                 UNITED STATES DISTRICT COURT
                                    DISTRICT OF MINNESOTA


United States of America,                                           Case No. 22-cr-223 (NEB/TNL)

                    Plaintiff,

v.                                                                  ORDER ON PRETRIAL
                                                                DISCLOSURE & PRESERVATION
Aimee Marie Bock et al.,

                    Defendants.


           Counsel for all parties are instructed to review this Order carefully and in its

entirety as it represents a significant deviation from the schedules that ordinarily

govern criminal cases in the District of Minnesota.

                                                         ***

           On September 13, 2022, a federal grand jury returned a series of six indictments

charging more than 40 individuals related to the prosecution of an alleged massive

fraudulent scheme to obtain and misappropriate more than $250 million in federal child

nutrition program funds. The Government has alleged that these individuals fraudulently

obtained, misappropriated, and laundered millions of dollars in programs funds that were

intended as reimbursements for the costs of serving meals to children. The charges in

these cases include, among other things, conspiracy to commit wire fraud, wire fraud,

conspiracy to commit money laundering, money laundering, conspiracy commit federal

programs bribery, and federal programs bribery. This is one of those six cases. 1


1
    United States v. Abdiaziz Shafii Farah et al., No. 22-cr-124 (NEB/TNL) (8 defendants); United States v. Liban

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        On September 29, 2022, the Court designated this and the five other related

matters as complex under 18 U.S.C. § 3161(h)(7)(B)(ii) of the Speedy Trial Act. See

generally ECF No. 95. The Government reported that discovery in these matters

                 is exceptionally voluminous and includes millions of pages of
                 investigative materials. The grand jury issued more than 600
                 subpoenas, and the responses to these subpoenas include
                 financial statements and other records for hundreds of bank
                 accounts and credit card        merchant accounts.       The
                 Government interviewed hundreds of witnesses and
                 individuals involved in the fraud scheme, and will be
                 producing hundreds of reports documenting those interviews.
                 The Government obtained and executed physical search
                 warrants for 32 businesses and residences, during which the
                 Government seized approximately 380 electronic devices,
                 including computers, laptops, and cell phones.           The
                 Government also obtained warrants to search more than 45
                 email accounts, through which the Government obtained
                 more than 250,000 emails relevant to the investigation.

ECF No. 95 at 1-2 (quotations and citations omitted). The Court found that “[g]iven the

large volume of discovery, the nature of the evidence collected, and the multiple issues

involved in the discovery process, as well as the sheer number of defendants, this case

and the related cases are so complex that it is unreasonable to expect adequate

preparation for pretrial proceedings and for the trial itself within the time limits set forth

in the Speedy Trial Act.” ECF No. 95 at 3-4. The Court further directed the parties to

meet and confer and submit a proposed case management schedule for each of the

respective cases for the completion of pretrial proceedings (to include disclosures by the

Government, disclosures by Defendants; and the filing of pretrial motions, responses to

Yasin Alishire et al., No. 22-cr-222 (NEB/TNL) (3 defendants); United States v. Aimee Marie Bock et al., No. 22-cr-
223 (NEB/TNL) (14 defendants); United States v. Qamar Ahmed Hassan et al., No. 22-cr-224 (NEB/TNL) (8
defendants); United States v. Sharmake Jama et al., No. 22-cr-225 (NEB/TNL) (6 defendants); and United States v.
Haji Osman Salad et al., No. 22-cr-226 (NEB/TNL) (5 defendants).

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such motions, notices of intent to call witnesses, and responsive notices of intent to call

witnesses) on or before November 4, 2022. 2 The Court indicated that it will thereafter

issue case management orders, setting forth, among other things, pretrial deadlines and

motions hearing dates.

         This Order proactively addresses certain non-dispositive motions that are

commonly filed in the District of Minnesota, which seek discovery, notice of intent to

introduce certain types of evidence, preservation of rough notes, and disclosure of

evidence favorable to a defendant under Brady v. Maryland, 373 U.S. 83 (1963), and

related authorities. These motions often seek relief that is already required by the Federal

Rules of Criminal Procedure, Federal Rules of Evidence, and federal law. To promote

the efficient management of these related cases, the Court issues this Order to

preemptively address such matters without the need for each defendant to file multiple

motions on these subjects. Any defendant or the Government may seek modification

of the requirements set forth herein by filing a motion to modify this Order by the

forthcoming deadline for filing pretrial motions.

         1. Due Process Protections Act, Brady v. Maryland & Related Authorities

         Pursuant to the Due Process Protections Act, the Court confirms the Government’s

obligation to disclose to Defendants all exculpatory evidence—that is, evidence that

favors a defendant or casts doubt on the Government’s case, as required by Brady v.

Maryland, 373 U.S. 83 (1963), and its progeny, and orders the Government to do so


2
 Although the Court issued similar orders in these six related cases, this does not mean that these cases are formally
consolidated.

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        CASE 0:22-cr-00223-NEB-TNL Doc. 111 Filed 10/07/22 Page 4 of 8




promptly and on an ongoing basis. Failure to do so in a timely manner may result in

consequences, including, but not limited to, exclusion of evidence, adverse jury

instructions, dismissal of charges, contempt proceedings, disciplinary action, or sanctions

by the Court.

       Moreover,“[t]he Due Process Clause of the Fifth Amendment requires the

government to disclose to the accused favorable evidence that is material to guilt or

punishment.” United States v. Dones-Vargas, 936 F.3d 720, 722 (8th Cir. 2019) (citing

Brady, 373 U.S. at 87); see United States v. Whitehill, 532 F.3d 746, 753 (8th Cir. 2008)

(“Brady applies to exculpatory and impeachment evidence, whether or not the accused

has specifically requested the information.” (citations omitted)). “The [Supreme] Court

has extended Brady protection to witness-credibility evidence when the reliability of the

witness ‘may well be determinative of guilt or innocence.’” United States v. Sigillito,

759 F.3d 913, 930 (8th Cir. 2014) (quoting Giglio v. United States, 405 U.S. 150, 154

(1972)); accord Dones-Vargas, 936 F.3d at 722; see Whitehill, 532 F.3d at 753. “One

reason for this extension to witness-credibility evidence is because exposure of a

witness’s motivation in testifying is a proper and important function of the

constitutionally protected right of cross-examination.”      Sigillito, 759 F.3d at 930

(quotation omitted). The Eighth Circuit Court of Appeals “ha[s] determined that witness

motivations, like the payment of money as an incentive to change testimony, fall within

the Brady disclosure requirement.” Id. (citing United States v. Librach, 520 F.2d 550,

554 (8th Cir. 1975)). “Furthermore, the prosecutor must disclose the possibility of a

reward that gives the witness a personal stake in the defendant’s conviction.” Id. (citing

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United States v. Bagley, 473 U.S. 667, 683 (1985)).

       The Government shall comply with its obligations under Brady, Giglio, and their

progeny and disclose all exculpatory and impeachment evidence as well as Jencks Act,

18 U.S.C. § 3500, see infra ¶ 4, and Federal Rule of Criminal Procedure 26.2 materials.

See United States v. Mazzulla, 952 F.3d 1091, 1100 (8th Cir. 2019). If the Government

subsequently discovers additional exculpatory or impeachment evidence, it shall disclose

such evidence as soon as practicable after such discovery.

       2. Expert Witnesses

       Pursuant to Rule 16 of the Federal Rules of Criminal Procedure, the Court adopts

a schedule for the disclosure of any testimony a party intends to use under Rules 702,

703, or 705 of the Federal Rules of Evidence.         See Fed. R. Crim. P. 16(a)(1)(G),

(b)(1)(C). No later than 45 days prior to any trial in this matter, the parties shall

make their principal expert disclosures, and, no later than 30 days prior to any trial in

this matter, the parties shall make any rebuttal expert disclosures.

       3. Rule 404(b) Evidence

       Rule 404(b) requires the Government to provide reasonable written notice before

trial when evidence of a crime, wrong, or other act will be used to “prov[e] motive

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

accident.” Fed. R. Evid. 404(b)(2); see Fed. R. Evid. 404(b)(3)(A) (prosecutor must

“provide reasonable notice of any such evidence that the prosecutor intends to offer at

trial, so that the defendant has a fair opportunity to meet it”), (C) (in writing). The

Government is required to “articulate in the notice the permitted purpose for which the

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[Government] intends to offer the evidence and the reasoning that supports the purpose.”

Fed. R. Evid. 404(b)(3)(B).

      “Rule 404(b) . . . applies to the admission of wrongful-act evidence that is

extrinsic to the charged offense . . . .” United States v. Ruiz-Chavez, 612 F.3d 983, 988

(8th Cir. 2010). It does not apply to intrinsic evidence. Id.; see also United States v.

Beltz, 385 F.3d 1158, 1162 (8th Cir. 2004) (“Evidence that is relevant to the crime

charged is not other crimes evidence.”).       “Evidence of other wrongful conduct is

considered intrinsic when it is offered for the purpose of providing the context in which

the charged crime occurred.” Ruiz-Chavez, 612 F.3d at 988 (quotation omitted).

      No later than 30 days prior to any trial in this matter, the Government shall

provide reasonable written notice of all “extrinsic” evidence then known to the

Government that the Government intends to offer within the purview of Rule 404(b),

“articulat[ing] the permitted purpose for which the [Government] intends to offer the

evidence and the reasoning that supports the purpose.” Fed. R. Evid. 404(b)(3)(B). If the

Government subsequently discovers additional extrinsic evidence, it shall provide

reasonable notice of such evidence as soon as practicable after such discovery. See Fed.

R. Evid. 404(b)(3)(C).

      4. Jencks Act Materials

      By its terms,

             [t]he Jencks Act does not compel the government to produce
             a statement or report of a government witness until after the
             witness has testified on direct examination, after which the
             defendant may move for the production of any statements in
             the government’s possession made by that witness relating to

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              the subject matter of his testimony.

United States v. Green, 151 F.3d 1111, 1115 (8th Cir. 1998); see 18 U.S.C. § 3500(b).

“Although in many cases the government freely discloses Jencks Act material to the

defense in advance of trial, the government may not be required to do so.” Green, 151

F.3d at 1115 (quotation omitted); accord United States v. Wilson, 102 F.3d 968, 971-72

(8th Cir. 1996). While the Court is not ordering the Government to disclose Jencks Act

materials early, the Court encourages the Government to disclose such materials no later

than two weeks prior to any trial in this matter given the scale of the allegations and

the significant delay that could be caused in any trial if early disclosure is not made.

       5. Rough Notes

       To the extent it has not already done so, the Government shall direct all law

enforcement agents, including any confidential reliable informants, to retain and preserve

any and all rough notes made or taken during the course of this investigation, and to

preserve any and all relevant evidence seized during the course of this investigation.

       6. All prior consistent orders remain in full force and effect.




                                 [Continued on next page.]




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       7. Failure to comply with any provision of this Order or any other prior consistent

Order shall subject the non-complying party, non-complying counsel and/or the party

such counsel represents to any and all appropriate remedies, sanctions and the like.




Date: October   7    , 2022                             s/ Tony N. Leung
                                                 Tony N. Leung
                                                 United States Magistrate Judge
                                                 District of Minnesota


                                                 United States v. Bock et al.
                                                 Case No. 22-cr-223 (NEB/TNL)




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