Defendant's Motion for Hearing Pursuant to Franks v. Delaware — United States v. Aimee Marie Bock (D. Minn., Doc. 198)

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Defendant's Motion for Hearing Pursuant to Franks v. Delaware, filed 12/16/23 as Doc. 198 in United States v. Aimee Marie Bock (1), Criminal No. 22-CR-223 (NEB/TNL), in the U.S. District Court for the District of Minnesota. Bock asks for a Franks hearing on the January 14, 2022 search warrant affidavit of FBI Special Agent Travis Wilmer. She argues that the affiant classified a single $310,000 payment as a kickback rather than administrative fees, with no stated basis, and assumed that a kickback is unlawful in itself. She says sponsors may lawfully charge administrative fees and asks the court to exclude evidence from the warrants and to order more disclosure about the accuracy of the affidavits.

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          CASE 0:22-cr-00223-NEB-TNL Doc. 198 Filed 12/16/23 Page 1 of 6




                            UNITED STATES DISTRICT COURT
                                DISTRICT OF MINNESOTA
                            CRIMINAL NO: 22-CR-223 (NEB/TNL)


United States of America,

               Plaintiff,

vs.                                     DEFENDANT’S MOTION FOR HEARING
                                                   PURSUANT TO
Aimee Marie Bock (1),                   FRANKS V. DELAWARE, 438 U.S. 154 (1978)

               Defendant.




              DEFENDANT’S MOTION FOR HEARING PURSUANT TO
                   FRANKS V. DELAWARE, 438 U.S. 154 (1978)

         I.    Introduction

         In accordance with Federal Rule of Criminal Procedure 12(b)(3)(C), Defendant

Aimee Marie Bock respectfully seeks a Franks v. Delaware, 438 U.S. 154 (1978)

hearing. She also calls for the government to disclose more information to show accuracy

of the government agents’ affidavits.

         On January 14, 2022, FBI Special Agent Travis Wilmer sought and obtained a

search warrant related to Aimee Bock. The warrant, among other properties, included

Feeding Our Future’s office and Ms. Bock’s residence. (22-MJ-040 (TNL) (Jan. 14,

2022).

         The affidavit presented materially misleading information about Defendant Bock

to the Court. First, the affiant knowingly or recklessly created a misleading narrative


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regarding alleged payments to Defendant Bock, in her capacity as the executive director

of Feeding Our Future. Specifically, the affiant classified a single payment as a kickback

rather than a collection of administrative fees with no indication as to how that

determination was made.

       Second, the affiant makes an assumption that a kickback is per se illegal, but does

not identify a basis for that assumption, thereby not implicating any crime.

       Hence, a Franks hearing is necessary. The findings thereof should indicate that the

Court should exclude all evidence obtained in or arising from these affidavits and

warrants.

       II.    Standard


       Pursuant to the Supreme Court's decision in Franks v. Delaware, 438 U.S. 154, 98

S. Ct. 2674, 57 L. Ed. 2d 667 (1978), "a criminal defendant may request a hearing to

challenge a search warrant on the ground that the supporting affidavit contains factual

misrepresentations or omissions relevant to the probable cause determination." United

States v. Arnold, 725 F.3d 896, 898 (8th Cir. 2013); see also United States v. Juneau, 73

F.4th 607, 615 n.5 (8th Cir. 2023) (favorably citing Arnold). Such a hearing is commonly

referred to as a "Franks hearing." See e.g., Juneau, 73 F.4th at 615 n.5. “However, in order

to merit a Franks hearing, [the defendant] must show both (1) that the affiant . . . 'knowingly

and intentionally' made false statements or made them in 'reckless disregard for the truth'

and (2) if the false information is excised (or the omitted information is included), the

affidavit no longer establishes probable cause.” Arnold, 725 F.3d at 898. As the Eighth

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        CASE 0:22-cr-00223-NEB-TNL Doc. 198 Filed 12/16/23 Page 3 of 6




Circuit has explained, this "requirement of a substantial preliminary showing is not lightly

met[.]” Id.

       III.   Argument

   a. Defendant Bock was entitled to charge administrative fees for Feeding Our
      Future Services.

       The government alleged that Feeding Our Future retained “10 to 15 percent of the

funds as an administrative fee in exchange for sponsoring the sites, submitting

reimbursement claims, and disbursing the federal funds.” (Doc. 1 at ¶10). Sponsoring

organizations charging administrative fees are lawful. See 7 CFR 225, 7 CFR §

226.4(a), 7 CFR § 223.6(f)(iv), and 7 CFR §226.15(e)(6)(i). The Department of

Agriculture and Minnesota Department of Education authorizations therefore entitled

Feeding Our Future to use those fees for administrative purposes. The Government has

not alleged that Defendant Bock used the funds she procured pursuant to 7 CFR 225 and

7 CFR 226 for any other purpose than planning, organizing, and managing a food service.

Still, the affiant summarily classified these administrative fees as kickbacks (Aff, Travis

Wilmer at ¶18). The affiant gives no reason as to why he assumes that the $310,000

deposit represented a kickback or that such a deposit otherwise represented fraudulent

activity rather than a legitimate transaction. Affiant further assumes that the money was

from a company that was misappropriating funds despite the fact that there was no

reasonable basis to believe this was the case since no judicial determination of

misappropriation had been made. Id.




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       Here, the affidavit fails to even provide the date that the alleged offense occurred

and fails to state that the check was for a legitimate business purpose. A simple search

would have shown that Feeding Our Future was entitled to administrative fees and

Defendant is entitled to engaged in lawful business transactions. The affiant also failed

to note that Defendant Bock was actively involved in reporting organizations that she

suspected of fraudulent activity. Further, the affidavit failed to state which of the

Defendant’s conduct could be classified as unlawful. In doing so, the affiant presupposes

fraudulent activity to classify an otherwise legal conduct as fraudulent. Such circular

reasoning is not sufficient to support a search warrant.

       Thus, by recklessly misstating that Defendant Bock took kickbacks without

substantiating how he established that the payment came from improperly obtained funds,

the affiant assumed that they did and that formed the basis for the probable cause.

   b. Kickbacks are not per se illegal in Minnesota or federal law.

       Even assuming for a moment that the affiant correctly guessed that Defendant

Bock was the recipient of kickbacks, the affiant did not indicate that kickbacks are

inherently unlawful or cited his basis for the assumption. New York v. Amgen Inc., 652

F.3d 103, (1st Cir. 2011) deals precisely with this issue. In this case, the court addresses

an issue relating to whether Medicaid claims affected by kickbacks are eligible for

Medicaid payment. But the court seems to reject the notion that it is settled law that

kickbacks are inherently fraudulent practices. See Amgen, 652 at 112 (“[the assertion]

that [i]t is widely recognized on both the federal and State levels that kickback schemes



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are fraudulent practices under Medicaid and Medicare . . . stretches too broadly.”).

Instead, the court turns to relevant state law to determine whether kickbacks are indeed

fraudulent. This was enough for the court in Amgen to dismiss the claim based on

Georgia law. The court allowed the claims from other states which clearly defined

kickbacks as fraudulent. Id. at 116. Like Medicaid, the implementation of the Child

Nutrition Program is a program that is delegated to the states with a federal oversight

framework. Therefore, the same reasoning applies here. Regarding federal anti-fraud

statutes, they are statutes relating to the healthcare industry. There are no analogous anti-

fraud statutes in Minnesota or relating to FDA programs that explicitly define kickbacks

or administrative fees as fraudulent per se.

       Because the affiant in this search warrant makes no claim that the kickback is

illegal, they have not alleged any illegal activity, let alone the basis for probable cause.

       Regardless, because Defendant maintains that she received no kickbacks while in

her role as executive director of Feeding Our Future, there is no indication that

administrative fees or kickbacks are fraudulent per se. Therefore, the government has

failed to establish a basis for probable cause.

   III.    The good faith exception does not apply in the event of a Franks violation.

       In this case, the affiant failed to include crucial details in the search warrant

affidavit, particularly related to the most relevant elements of Defendant Bock’s role as

executive director. At the very least, affiant demonstrated recklessness in omitting these

details, constituting a Franks violation and rendering the good faith exception



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inapplicable. Setting aside the Franks violation, it is evident that no reasonable officer

would have assumed the validity of the warrant due to its lack of essential information.

This includes critical details regarding the circumstances of Defendant Bock’s duties to

recover administrative fees sites she supervised. Additionally, the warrant lacked crucial

details regarding the legality of the allegedly unlawful activity. Therefore, the good faith

exception is not applicable in this instance.

                                        IV. Conclusion

       Being that the government agents knowingly and recklessly misstated information

as identified in this motion, this Court must find that Defendant Bock has met her burden

of substantiating the existence of a Franks violations. Accordingly, this Court must allow

a Franks hearing to subject the affiant to cross-examination. Defendant Bock may seek

other government agents related to the procurement of misleading information. Further,

the government must be ordered to produce all investigative materials related to the

procurement of the search warrant.

                                                    KENNETH UBONG UDOIBOK, P.A.

December 14, 2023                                   /s/Kenneth U. Udoibok
                                                     Kenneth U. Udoibok (#0262523)
                                                     Flour Exchange Building, Suite
                                                     5010 310 Fourth Avenue South
                                                     Minneapolis, MN 55415
                                                     Phone: (612) 808-6031
                                                     k@kenulaw.com

                                                    ATTORNEY FOR DEFENDANT
                                                    AIMEE MARIE BOCK




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