Motion in Limine No. 1 to Preclude Arguments Regarding Unsupported Gang Affiliation (Abdulkadir Nur Salah) — United States v. Bock et al. (Feeding Our Future) (Dkt. 423, D. Minn.)

Summary

Motion in Limine No. 1 to Preclude Rule 404(b) Arguments Regarding Unsupported Gang Affiliation in United States of America v. Abdulkadir Nur Salah (4), Case No. 22-CR-223(4)(NEB/DTS), Case 0:22-cr-00223-NEB-DTS, in the District of Minnesota, Doc. 423 filed 01/10/25. Defendant Abdulkadir Nur Salah moves to preclude the Government from introducing evidence and argument under Rule 404(b) suggesting gang affiliation. It states that on January 6, 2025 the United States served a 404(b) disclosure, that the disclosure identified no purpose for the evidence, and that the defense located a video in the production with the Bates label EML-00723125. It argues that the Government failed to identify any purpose for its alleged gang argument and that such evidence is irrelevant to the wire fraud and money laundering allegations, citing United States v. Cotton, 823 F.3d 430, 434 (8th Cir. 2016).

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“Motion in Limine No. 1 to Preclude Arguments Regarding Unsupported Gang Affiliation (Abdulkadir Nur Salah) — United States v. Bock et al. (Feeding Our Future) (Dkt. 423, D. Minn.).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-united-states-v-bock-et-al-feeding-our-future-dkt-423-d-m-c958ef2d70/, SHA-256 27c8511ee5c2c9e0fcf0acfe89d58d4c96970f208feb29a75f1f00722ac6a739.

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CASE 0:22-cr-00223-NEB-DTS Doc. 423 Filed 01/10/25 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MINNESOTA

UNITED STATES OF AMERICA, Case No. 22-CR-223(4)(NEB/DTS)

Plaintiff,

v. MOTION IN LIMINE NO. 1 TO
PRECLUDE RULE 403(b)
4. ABDULKADIR NUR SALAH, ARGUMENTS REGARDING
UNSUPPORTED GANG
Defendant. AFFILIATION

Defendant Abdulkadir Nur Salah moves to preclude the Government from

introducing baseless evidence and argument under Rule 404(b) prejudicially suggesting

that Mr. Salah is somehow gang affiliated. Besides the fact that Mr. Salah has never been

gang-affiliated—to the contrary he was an honor roll student and has a master’s degree in

management—the government’s prejudicial suggestions have no place at this trial.

Without any legal or evidentiary support, the prosecutors say they may offer a

disturbing video depicting an unidentified individual—a person with no connection to

Mr. Salah or this case—engaging in a mock-execution and pistol-whipping of a crying

victim in a bathtub. The prosecution also claims it will argue that Mr. Salah’s use of

innocuous slang in text messages—the same type of slang that every middle-school

student hears every day in popular music—allegedly makes him a gang member.

But this is not one of the United States’ numerous RICO prosecutions. The

prosecution’s surprising attempt to interject irrelevant gang rhetoric and violence into this

white-collar fraud trial is one of those “foul blows” fundamentally at odds with all
CASE 0:22-cr-00223-NEB-DTS Doc. 423 Filed 01/10/25 Page 2 of 12

defendants’ right to a fair and impartial trial. Berger v. United States, 295 U.S. 78, 88

(1935) (government “may strike hard blows” but not “foul ones.”) The Court should

repudiate the government’s unfounded strategy.

I. BACKGROUND.

On Monday, January 6, 2025, the United States served the defendants with its

lengthy 404(b) disclosure, including the following baseless suggestion of gang affiliation

(which is reproduced below in its totality):

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The prosecution’s disclosure did not identify any purpose for this alleged 404(b)

evidence or attempt to address the obvious unfair prejudice of such evidence under Rule

403. The disclosure did not provide a Bates number or any metadata for the text message

or the video.

On January 7, 2025, with Defendant Salim Said’s counsel, Mr. Colich, present in

person at the prosecutor’s office, and the undersigned counsel for Mr. Salah on the

phone, the defense asked the prosecution to reconsider this 404(b) gang-disclosure

because it was unfairly prejudicial, irrelevant, and because there was no evidence that

either Defendant was gang affiliated. Prosecutors told the defense that they had more

than one FBI 302 that purportedly linked the Defendants to a gang, and that the

individual depicted in the video (who remains completely unidentified) was part of the

same gang.

When asked to disclose any such FBI 302s to the defense, the prosecutor stated

that he could not disclose the reports because he had witness security concerns. After

noting that there was no basis for any witness security concerns, defense counsel noted

that the prosecution had not even made any reports available for inspection at his office

under his supervision. The prosecution ultimately agreed to make the reports available

for inspection at the U.S. Attorney’s Office. Despite the fact that Mr. Colich was present

at the U.S. Attorney’s Office at that time, counsel was not provided any 302s to review

and the government did not propose an alternative time for a review.

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On the evening of January 7, the defense counsel memorialized its request to

review any 302s supporting the prosecution’s claim of gang affiliation at the prosecutor’s

office on January 8, 2025.

On January 8, 2025, the undersigned again emailed the prosecutors asking to

review the alleged 302s establishing any gang affiliation, because the prosecution had not

confirmed a meeting to allow this review. The prosecutor responded to that email

attaching a copy of the video referenced in the 404(b) disclosure, without any Bates

number or attribution information and without the video’s original metadata. The

prosecutor’s email stated, “I believe the agent is still writing up the 302 of the interview.

We’ll let you know when we have it in hand.”

Despite the defense’s request, the prosecutor did not advise when the defense

could review the alleged 302s that formed the basis of the government’s 404(b)

disclosure. Instead, the prosecutor’s email confirmed that, contrary to the government’s

representation the day before, there apparently were not any FBI 302s supporting the

government’s allegations that the defendants are gang members.

In response to that email, the undersigned attorney emailed to ask for the Bates

number of the video and information on where that video was located in the United

States’s numerous and voluminous disclosures. The email also memorialized that after

the prosecution initially told the defense that there were 302s supporting alleged gang

affiliation, the prosecution had now implicitly admitted that was not true. The

undersigned attorney again requested that the government consider retracting this 404(b)

disclosure.

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CASE 0:22-cr-00223-NEB-DTS Doc. 423 Filed 01/10/25 Page 5 of 12

To date, the prosecution has not responded to that email. The prosecution has not

identified a Bates number for the video, has not provided the video’s metadata, and has

supplied no basis for its assertion that the defendants are allegedly gang members. The

prosecution has not disputed the defense’s understanding that there were no 302s or other

documentary evidence (disclosed or undisclosed) supporting the United States’ 404(b)

disclosure.

The defense was ultimately able to find the video in the United States’ production

with the Bates label EML-00723125, an exercise that sidetracked defense counsel from

preparing for trial. A review of that file demonstrates that its metadata was apparently

removed from the file through the government’s discovery processing procedure. In

other words, the file was not produced in the format that it was received by the

government from Google. The file was produced without any file path information

(allegedly within Google Drive), without its original date, without any location metadata,

and without any evidence of when or where it was taken, who took it, or who is depicted.

On January 9, 2025, the undersigned notified the prosecutors that they had

apparently not produced the standard attribution and access information that Google

produces in response to all government search warrants. This attribution and access

information does not seem to have been produced for approximately 50 different Google

accounts, including the accounts that stored many if not most of the emails listed on the

Government’s preliminary exhibit list.

Late in the evening on January 9, the prosecution provided one copy of the

attribution information for one of the Google accounts, which it had not previously

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CASE 0:22-cr-00223-NEB-DTS Doc. 423 Filed 01/10/25 Page 6 of 12

produced. The Government had not produced these files even though they were received

by the government prior to the Indictment in this case. As of the time of filing this

motion, the United States has not yet committed to providing the defense with everything

it received from Google in response to search warrants consistent with its Rule 16

obligations.

II. ARGUMENT

A. The Government Failed to Identify Any Purpose for Its Alleged Gang
Argument.

Even if the short, vague text message exchange and unattributed video the

government relies on could establish the defendants’ alleged gang affiliations—which

they cannot—the government’s disclosure articulates no proffered purpose for seeking to

establish that affiliation, which is obviously irrelevant to the allegations of wire fraud and

money laundering in this case. The government’s disclosure is facially inadequate, and

the government should be precluded from introducing any evidence or argument on this

issue on that basis alone. See United States v. Cotton, 823 F.3d 430, 434 (8th Cir. 2016)

(government “must identify the permissible non-propensity purpose for the evidence, and

must articulate the relationship between the [evidence] and a material issue in the case”

and may not “[m]ere[ly] recit[e] the Rule without an accompanying case-specific

analysis”); Rule 404(b)(3) (“the prosecutor must: (A) provide reasonable notice…so that

the defendant has a fair opportunity to meet it; [and] (B) articulate in the notice the

permitted purpose for which the prosecutor intends to offer the evidence and the

reasoning that supports the purpose[.]”) (emphasis added).

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CASE 0:22-cr-00223-NEB-DTS Doc. 423 Filed 01/10/25 Page 7 of 12

It is far too late for the government to try to come up with a basis for this plainly

irrelevant argument for the first time. Having failed to properly notice this “evidence” as

required, the government should not be permitted to make any late supplemental

disclosures.

And although the Court should not give the United States another opportunity now

to try to explain itself for the first time, the prosecution would be unable to do so even if

it tried. Evidence of alleged gang affiliation could not demonstrate any of the permitted

uses under Rule 404(b) in this white-collar case.

Such evidence could only be used for an improper purpose—as a transparent,

baseless dog-whistle suggesting two Black defendants are allegedly tied to an unspecified

gang. The Court should reject this unnecessary attempt by the prosecution to prejudice

the defendants.

B. Evidence of Alleged Gang Affiliation is Irrelevant and Dissimilar to Every
Material Issue.

Evidence is admissible pursuant to Rule 404(b) only if “it (1) is relevant to a

material issue, (2) is similar in kind and close in time to the crime charged, (3) is proven

by a preponderance of the evidence, and (4) does not have a prejudicial effect that

substantially outweighs the probative value.” United States v. Ali, 616 F.3d 745, 752–53

(8th Cir. 2010).

Here, the government has not even attempted to explain the relevance of

completely unspecified alleged gang affiliation in this wire fraud case. Moreover, alleged

gang affiliation is completely dissimilar in kind to wire fraud.

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CASE 0:22-cr-00223-NEB-DTS Doc. 423 Filed 01/10/25 Page 8 of 12

Indeed, the government’s suggested argument is so far-fetched, it’s difficult to

even speculate about any rational or logical basis for trying to offer it. The evidence

should be excluded as irrelevant and dissimilar to the charged offenses.

C. The Government Did Not Have Any Basis to Insinuate Gang Affiliation
When They Issued Their Rule 404(b) Notice and Cannot Prove Any Alleged
Gang Affiliation by a Preponderance.

The government’s alleged “evidence” of gang affiliation and argument to that

effect should also be excluded because the United States apparently made this paper-thin

404(b) disclosure without any evidence—and no law enforcement reports suggesting

gang affiliation. Accordingly, the United States cannot prove the existence of any

evidence by a preponderance.

Further, the alleged text message does not suggest gang affiliation. It merely

reflects the use of slang language among two individuals who know each other well. It is

unclear if the government is offended with the use of the “F-word” or perhaps with one

Black man’s use of the “N-word” to another Black man. Regardless, the prosecution is

not responsible for policing language or culture. The prosecution’s cursory disclosure

raises concerns that it is drawing improper and unsupported inferences based on this

innocuous text message.

Further, the United States either did not consider or omit the context of the text

messages in its Rule 404(b) disclosure. The relevant context is reproduced below:

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The context demonstrates that this was a conversation about “Abti Liban,” (i.e.

“Uncle Liban”) a social media influencer that was responsible for getting the word out

(i.e. “posting” on social media) that people could pick up food from Safari Restaurant

during the pandemic. With their full context, the text messages clearly show that Mr.

Salah was frustrated that Liban should be posting more about Safari’s food to get the

word out. Nothing about these texts—other than the government’s baseless attempt to

connect them to an unrelated video that doesn’t depict either participant in the text

exchange—suggests any gang affiliation. While Mr. Salah may have shown a mild

amount of frustration, his language is being taken out of context by the prosecution to

baselessly suggest violence and gang involvement.

Additionally, the United States—and based on the evidence disclosed to date—

cannot establish any details about the inflammatory and violent video it says it might try

to offer at trial. Other than stating it was allegedly recovered on Google Drive, the

United States cannot establish when the video was taken, who is in it, where it was taken,

who took it, what its context is, how it arrived on the Google Drive, or whether it was

embedded in other media or web content before it was saved. It is not even clear if this

video was taken in this country. In short, the United States knows nothing about this

video other than it is violent and could cause juror confusion and prejudice the

defendants.

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For all the government knows, this video could be a social media or web video

that was saved to a Google drive by someone who saw the video.1 In that case, the

government would be accusing someone of gang affiliation based on what social media

content they chose to watch and save on a private device.

For all these reasons, the Court should conclude that the government cannot

substantiate this baseless gang argument.

D. The Proffered Evidence is Inadmissible Under Rule 403.

Last, the government’s proffered evidence and argument must be excluded under

Rule 403 to preserve the defendants’ right to a fair trial. The proffered evidence and

argument hits virtually all the bases requiring exclusion under Rule 403: “unfair

prejudice, confusing the issues, misleading the jury, undue delay, [and] wasting time.”

Indeed, other than inciting unfair prejudice, misleading the jury, and confusing the

issues, it is difficult to identify any appropriate reason the prosecution should be allowed

to baselessly cast two Black defendants as alleged violent gang members in this wire

fraud case. Accusing a defendant of random violence would be unfairly prejudicial even

1
And there is some basis to believe that the video may be just that—a social media
video saved by someone who saw it. The aggressor in the video seems to be repeatedly
saying the name “Dolal” to the person videotaping the incident. That could refer to
“Dolal Idd,” a Somali man who was fatally shot by Minneapolis Police Officers on
December 30, 2020. See https://www.nytimes.com/2021/01/02/us/minneapolis-police-
shooting-raid-dolal-idd.html. Following the killing, there was public attention on the idea
that “Dolal Idd” was himself allegedly a violent person. This video may have been one
of the videos circulated publicly suggesting that Idd was involved in violence. Cf.
https://sahanjournal.com/public-safety/family-dolal-idd-killing-minneapolis-police/

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if the government did have an evidentiary basis to prove it. There should be no question

that the United States position is completely unsupported.

The Court should reject the United States proffered evidence and argument under

Rule 403 and 404(b). United States v. Maxwell, 643 F.3d 1096, 1102 (8th Cir. 2011) (“In

cases in which a defendant argues that both rules prohibit the admission of certain

evidence, there is no practical difference whether we analyze the Rule 403 claim

separately or instead as a subpart of Rule 404(b),” and the defendant preserves his claim

under both rules).

Dated: January 10, 2025 GREENE ESPEL PLLP

s/ Surya Saxena
Surya Saxena, Reg. No. 0339465
Nicholas Scheiner, Reg. No. 0402470
222 S. Ninth Street, Suite 2200
Minneapolis, MN 55402
ssaxena@greeneespel.com
nscheiner@greeneespel.com
(612) 373-0830

Attorneys for Defendant Abdulkadir Nur
Salah

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