Motion in Limine No. 3 to Preclude Improper Questioning — United States v. Abdulkadir Nur Salah (D. Minn., Doc. 425)

Summary

Defendant Abdulkadir Nur Salah's Motion in Limine No. 3 to Preclude Improper Questioning, filed 01/10/25 as Doc. 425 in United States v. Abdulkadir Nur Salah (4), Case No. 22-CR-223(4)(NEB/DTS), in the U.S. District Court for the District of Minnesota. Salah asks for an order under Federal Rules of Evidence 611, 701 and 704 barring the government from eliciting improper summary opinion testimony and from asking leading questions on direct examination. He quotes passages from the Farah trial in which the court sustained objections, including questions to Emily Honer and FBI forensic accountant Paoline Roase, and argues that characterizations such as a lot of meals tell the jury what result to reach. He also lists leading questions from other witnesses at that trial.

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      CASE 0:22-cr-00223-NEB-DTS           Doc. 425    Filed 01/10/25    Page 1 of 7




                   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. 3 TO
                                                    PRECLUDE IMPROPER
4. ABDULKADIR NUR SALAH,                               QUESTIONING

                                Defendant.



       Defendant Abdulkadir Nur Salah requests an order pursuant to Federal Rules of

Evidence 611, 701, and 704 precluding the government from eliciting improper summary

opinion testimony and asking leading questions of its witnesses on direct examination.

I.     Improper Summary Questioning

       Lay witness testimony must be based on the witness’s “personal knowledge of the

matter” testified to. Fed. R. Evid. 602. Lay witnesses are permitted to offer their

opinions only under narrowly prescribed conditions—when those opinions are “rationally

based on the witness’s perception,” are “helpful to clearly understanding the witness’s

testimony or to determining a fact in issue, and are “not based on scientific, technical, or

other specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701.

       On multiple occasions during the trial in United States v. Farah earlier this year,

the government elicited testimony that amounted to improper lay opinion testimony by

asking the witness to agree with the questioning attorney’s characterizations of the
      CASE 0:22-cr-00223-NEB-DTS           Doc. 425     Filed 01/10/25   Page 2 of 7




evidence. One example from the questioning of Emily Honer, a Business Operations and

Support Services Supervisor with the Minnesota Department of Education:

      Farah Tr. Vol. VI at 1356:15-23
      Q. Winfield Townhomes in Savage, Minnesota?
      A. Yes, with 500 breakfasts and lunches.
      Q. And Woodbridge Apartments in Owatonna.
      A. Yes, with 500 breakfasts and lunches.
      Q. Seems like a lot.
      A. That does seem like a lot.
      MR. SCHLEICHER: Objection, Your Honor.
      THE COURT: Sustained. I'll strike that from the
      record. The jury will disregard.

Another example, from the government’s questioning of FBI Forensic Accountant

Paoline Roase:

      Farah Tr. Vol. XX at 4800:17-4801:2
      Q. And what's the total number of meals for which the
      defendants claimed reimbursements --
      A. So --
      Q. -- from April 2020 to December of 2021.
      A. Well, it goes into February of '22 a little bit as well,
      but it's 18,835,517 meals.
      Q. A lot of meals.
      A. Yes.
      MR. SCHLEICHER: Objection, Your Honor. Leading
      and argumentative.
      THE COURT: Sustained. It will be disregarded.

And a third example, also from Roase:

      Farah Tr. Vol. XXI at 5113:10-20
      Q. What were you looking for when you looked into entities
      that received money from these companies?
      A. I was looking -- I was looking for food purchases.
      Q. And what did you find?
      A. Not enough food purchases.
      MR. MOHRING: Objection. Foundation.
      THE COURT: Sustained.
      Did you say "not enough"?


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      CASE 0:22-cr-00223-NEB-DTS            Doc. 425     Filed 01/10/25     Page 3 of 7




       THE WITNESS: Not enough.
       THE COURT: All right. Sustained. The jury will
       disregard.

       Testimony that there were “a lot of meals” claimed or that a certain number of

meals claimed “does seem like a lot” is not factual testimony based on the witness’s

“personal knowledge,” it is an improper characterization—code for “too many”—that

essentially tells the jury what result the witness thinks they should reach. See, e.g.,

United States v. Manlove, 755 F. App’x 630, 633 (9th Cir. 2018) (“leading questions

going to essential elements of a cause of action are particularly dangerous because there

‘is a serious risk that the witness ... will simply follow the attorney's lead rather than

attempting to give the most accurate testimony’”) (citing Edward J. Imwinkelreid,

Evidentiary Foundations 3 (1986)). This infringes the jury’s role as factfinder and

undermines the defendant’s right to a fair trial. And while curative instructions may be

helpful and necessary after the fact, it is in all parties’ interest that the record remain free

of this kind of improper testimony in the first place. The Court should issue an order

precluding the government from eliciting this sort of testimony.

II.    Leading Questions

       Defendant Salah also requests that the Court instruct the government to refrain

from asking leading questions of witnesses on direct examination. “Leading questions

should not be used on direct examination except as necessary to develop the witness's

testimony.” Fed. R. Evid. 611; see also United States v. Anderson, 446 F.3d 870, 876

(8th Cir. 2006) (same). During the Farah trial, the Court repeatedly sustained objections




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      CASE 0:22-cr-00223-NEB-DTS         Doc. 425     Filed 01/10/25   Page 4 of 7




made by the defendants’ attorneys to leading questions asked of government witnesses on

direct examination. Illustrative examples include:

      Farah Tr. Vol. VI at 1277:17-20
      Q. Because all these kids that get free and reduced school
      lunch suddenly weren’t going to be able to?
      MR. GOETZ: Objection, leading, Your Honor.
      THE COURT: Sustained.

      Farah Tr. Vol. XII 2836:5-11
      Q. How did you help them out?
      A. I helped them submit fake meal count, fake invoices,
      help them get -- tell them what area to -- to use for the
      site for their application.
      Q. Look the other way?
      MR. COTTER: Objection. Leading.
      THE COURT: Sustained.

      Farah Tr. Vol. XII at 2843:22-2844:9
      Q. Why can you submit whatever number you want to claim for
      a high-traffic site?
      A. The high-traffic site, you can say -- you can exaggerate
      the number.
      Q. Why?
      A. Because it's high traffic. You exaggerate the number,
      you will say that you submitted -- that you served a lot of
      meal count.
      Q. Nobody knows the difference?
      MR. GOETZ: Objection. Leading, Your Honor.
      THE WITNESS: No, no one can tell the difference.
      THE COURT: Sustained. The answer will be
      stricken.

      Farah Tr. Vol. XII at 2875:24-2876:7
      Q. And what were they actually doing?
      A. They never -- they never served.
      Q. Did they ever visit?
      A. No.
      Q. Part of the VIP treatment?
      A. Yes.
      MR. GOETZ: Objection. Leading, Your Honor.
      THE COURT: Sustained. The answer will be


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CASE 0:22-cr-00223-NEB-DTS           Doc. 425   Filed 01/10/25   Page 5 of 7




stricken. The jury will disregard.

Farah Tr. Vol. XVI at 3935:23-3936:7
Q. A lot of money?
A. A lot of money.
Q. And they spent a lot of time talking about their
different cuts and how to split it up?
A. Correct.
Q. Fair to say they spent more time talking about that than
about feeding kids?
MR. SCHLEICHER: Objection, Your Honor.
Argumentative and leading.
THE COURT: Sustained.

Farah Tr. Vol. XVII at 4079:14-4083:4
Q. You said supplies issues. What do you mean by that?
A. Well, like supplies to run the market, so -- or the -- I
guess the restaurant side of it, so whether that be, hey,
barbecue sauce, out of barbecue sauce, or, you know, just
specific type of food items or other items that the cuisine
and market would have been running low on or out of.
Q. Okay. That doesn't seem super similar to what we saw
when you looked at Abdi -- the text between Abdiaziz Farah
and Mahad Ibrahim and also Abdiaziz Farah and --
MR. SCHLEICHER: Objection. Leading,
argumentative.
...
[Sidebar discussion]
...
THE COURT: The objection to the last question is
sustained. Rephrase, please.

Farah Tr. Vol. XX at 4755:12-4756:3
A. I guess it -- I wouldn't expect $30 million to be
flowing through a restaurant, you know, you know, situated
where it is.
MR. COTTER: Objection, Your Honor. Speculation,
lack of foundation.
THE COURT: Overruled.
You may answer.
THE WITNESS: Yeah, I mean, just where -- just
where it's located and the size of it, I just don't see how
$30 million could flow through in, I think it was roughly a


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      CASE 0:22-cr-00223-NEB-DTS          Doc. 425     Filed 01/10/25    Page 6 of 7




       year and a half.
       BY MR. THOMPSON:
       Q. Directing your attention back to Government Exhibit A-1,
       that doesn't look like a $30-million-a-year operation to
       you?
       MR. COTTER: Objection. Leading.
       THE COURT: Sustained.


       In many of these instances, the witnesses answered the improper leading questions

too quickly for the Court to instruct them not to do so. And in some instances, the

questions themselves amounted to testimony or argument by the attorneys, because the

questions comprised statements by the attorneys which the witnesses were simply being

asked to confirm. While jurors are presumed to heed the Court’s instructions to disregard

testimony in response to improper questions, the risk that such questions will prejudice

the defendants’ rights can only be fully avoided if those questions are not asked in the

first place. Further, the more routine it becomes for a prosecutor to lead and suggest

answers, the less likely that the jury is able to identify that such questioning is improper

and follow the Court’s repeated orders to strike and sustained objections.

       The Court should issue an order instructing the government to refrain from asking

leading questions of its witnesses on direct examination.




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     CASE 0:22-cr-00223-NEB-DTS   Doc. 425   Filed 01/10/25   Page 7 of 7




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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