Motion in Limine No. 5 to Preclude Improper Expert and Lay Opinion Testimony (Abdulkadir Nur Salah) — United States v. Bock et al. (Feeding Our Future) (Dkt. 427, D. Minn.)

Summary

Motion in Limine No. 5 to Preclude Improper Expert and Lay Opinion Testimony 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. 427 filed 01/10/25. Defendant Abdulkadir Nur Salah requests an order precluding expert testimony from case agents and law enforcement officers unless first qualified under FRE 702 and bifurcated from percipient witness testimony, and precluding improper lay opinion testimony. The motion states that the government disclosed one potential expert witness, Mark Danielson, a Supervisory Forensic Accountant at the FBI, and two proposed summary witnesses. It cites United States v. Peoples, 250 F.3d 630, 640 (8th Cir. 2001). The motion is dated January 10, 2025 and signed s/ Surya Saxena.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Cite this document

“Motion in Limine No. 5 to Preclude Improper Expert and Lay Opinion Testimony (Abdulkadir Nur Salah) — United States v. Bock et al. (Feeding Our Future) (Dkt. 427, 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-427-d-m-b89f2f31c0/, SHA-256 a5da6078066d1be2cf2cd3817b742a37438cf1b73dcbbad60a2a707baad146f8.

Full text

CASE 0:22-cr-00223-NEB-DTS Doc. 427 Filed 01/10/25 Page 1 of 8

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. 5 TO
PRECLUDE IMPROPER EXPERT
4. ABDULKADIR NUR SALAH, AND LAY OPINION TESTIMONY

Defendant.

Defendant Abdulkadir Nur Salah requests an order (1) precluding expert testimony

from case agents and law enforcement officers unless such testimony is first qualified

under FRE 702 and bifurcated from percipient witness testimony from the same witness;

and (2) precluding improper lay opinion testimony from case agents and law enforcement

officers.

I. Undifferentiated Expert Testimony

The government has disclosed one potential expert witness, Mark Danielson

(“Danielson”), who is a Supervisory Forensic Accountant at the FBI. Despite including

Danielson in an expert disclosure, the government states that it “does not agree that the

testimony of this witness is covered by” Rule 702, suggesting that Danielson may also

offer lay testimony based on his personal knowledge and role in the investigation in this

case. Danielson apparently also participated in the execution of search warrants in this

case and may have engaged in other hands-on investigative tasks as part of the

government’s investigation.
CASE 0:22-cr-00223-NEB-DTS Doc. 427 Filed 01/10/25 Page 2 of 8

The government’s expert disclosure explained it anticipates Danielson will testify

regarding a number of broad topics that might arguably involve specialized knowledge

including, for example, the “three stages of money laundering”; the “varying methods of

money laundering”; the difference between “shell”, “shelf”, and “front companies” and

how they are used in money laundering schemes; and criminals’ use of “[p]urchases of

high-value assets, such as real estate,” to engage in money laundering.1 The

government’s expert disclosure makes clear that it intends to dress up basic banking

concepts (e.g., deposits and withdrawals) into the highly charged language of money

laundering (shell, shelf, and front companies) without applying any articulable

methodology, specialized knowledge, or expertise to the facts of this case.

The government’s lengthy witness list also discloses two proposed “summary

witnesses,” who will likely be called on to give pre-closing arguments for the government

in the form of lay opinion testimony. These case agents, who the government will

request not be sequestered during trial, will likely be asked to conform their testimony to

the evidence that they have heard, and provide opinions designed to bolster the United

States’s theories. The government did so in the trial in United States v. Farah, asking

FBI Forensic Accountant Paoline Roase, who had not been qualified as an expert, “Q.

Ms. Roase, what were those five companies used for?” to which Roase offered the

1
For purposes of addressing this issue, Defendant Salah presumes that the
government does not intend to offer both lay and expert testimony from any other
witnesses. Should the government seek to do so, which Defendant Salah would oppose,
and should the Court permit it, the same principles discussed herein should apply to any
such witnesses.

2
CASE 0:22-cr-00223-NEB-DTS Doc. 427 Filed 01/10/25 Page 3 of 8

improper opinion that, “A. They were used to launder money.” The Court struck Roase’s

answer. Farah Tr. Vol. XXI at 5090:17-24.

The Eighth Circuit has articulated “several risks” with the kind of dual-role

testimony that the United States contemplates offering through several witnesses

including that:

(1) the witness’s aura of credibility as an expert may inflate the credibility
of her perception as a fact witness in the eyes of the jury;

(2) opposing counsel is limited in cross-examining the witness due to the
risk that an unsuccessful attempt to impeach her expertise will collaterally
bolster the credibility of her fact testimony;

(3) the witness may stray between roles, moving from the application of
reliable methodologies into sweeping conclusions, thus violating the
strictures of Daubert and Federal Rule of Evidence 702;

(4) jurors may find it difficult to segregate these roles when weighing
testimony and assessing the witness’s credibility; and

(5) because experts may rely on and disclose hearsay for the purpose of
explaining the basis of an expert opinion, there is a risk the witness may
relay hearsay when switching to fact testimony.

United States v. Overton, 971 F.3d 756, 763 (8th Cir. 2020) (citing United States v.

Moralez, 808 F.3d 362, 365 (8th Cir. 2015)).

In Overton, the Eighth Circuit explained the uniquely acute risk that a dual-role

witness will offer improperly founded testimony if putative expert testimony is not

clearly differentiated from their lay testimony. In that case, the case agent interpreted

both coded slang (expert testimony) as well as “ordinary English words,” while also

“providing opinions about the conversations that went beyond the words themselves,” “in

an undifferentiated form.” Id. at 764-65. The failure to differentiate between opinions

3
CASE 0:22-cr-00223-NEB-DTS Doc. 427 Filed 01/10/25 Page 4 of 8

“based on his personal perceptions as an investigator on the case” and those based on “his

expert training and experience” left the jury and the court no way to know whether his

opinions “were impermissibly based on hearsay statements.”

The Eighth Circuit has held that “[i]deally, the lay and expert testimony would be

provided by separate witnesses.” Moralez, 808 F.3d at 366. This case presents a

significant risk of unfair prejudice if the government is allowed to repeatedly blur the

lines between percipient witness testimony, lay opinion testimony, and quasi-expert

testimony as it is apparently planning. Given the significant number of law enforcement

officers identified on the United States’ witness list, it should have no problem separating

lay testimony and putative opinion testimony between separate witnesses. The Court

should enter an order requiring the government to do so.

At minimum, the Court “should take appropriate measures to minimize the

problems that may arise from dual-role testimony by a case agent.” Id. In this case, the

government should be required to “bifurcate[e] the questioning” of Danielson to separate

his expert testimony from any lay testimony and opinion. Id.; see also Overton, 971 F.

3d at 763. The Court should also provide the jury with “the necessary information to

distinguish between the lay and expert testimony” in the form of a jury instruction at the

beginning of Danielson’s testimony and at the end of the case. Overton, 971 F. 3d at 765;

Moralez, 808 F.3d at 366.

II. Exclude Expert Opinion Testimony by Mark Danielson

The Court should also preclude Danielson from offering expert testimony

regarding broad money laundering concepts because such overly-complex testimony is

4
CASE 0:22-cr-00223-NEB-DTS Doc. 427 Filed 01/10/25 Page 5 of 8

unnecessary to aid the trier of fact in understanding the basic banking transactions (e.g.,

deposits, withdrawals, etc.) at issue in this case. See United States v. Nunn, 940 F.2d

1148, 1149 (8th Cir. 1991) (excluding expert testimony where expert’s specialized

knowledge would not assist the trier of fact in understanding a relevant issue). Danielson

will not base his testimony on any specialized analysis, experimentation, or other reliable

methodology; rather, he will simply characterize certain straightforward bank

transactions as though they are criminal by labeling them as money laundering. None of

the transactions at issue in this case are the type of complex or comingled transactions

that warrant the aid of a money laundering expert.

The Court should exclude Danielson’s testimony entirely, or at the very least be

prepared to limit Danielson’s opinions to only those that will legitimately aid the trier of

fact in understanding demonstrably complex transactions, as opposed to straightforward

deposits and withdrawals.

III. Improper Lay Opinion Testimony

Moreover, to the extent the government seeks to introduce lay opinion testimony

from any non-expert witnesses, the Court should strictly hold the government to the

standards in Rule 701. Any lay opinion testimony must be “rationally based on the

witness’s perception,” “helpful to clearly understanding the witness’s testimony or to

determining a fact in issue,” and not “based on scientific, technical, or other specialized

knowledge within the scope of Rule 702.” Fed. R. Evid. 701. Specifically, government

witnesses should be precluded from offering lay opinion testimony that goes to (1)

5
CASE 0:22-cr-00223-NEB-DTS Doc. 427 Filed 01/10/25 Page 6 of 8

Defendant Salah’s state of mind, or (2) the meaning of communications by Defendant

Salah or the reasons for actions taken by Defendant Salah.

“When the issue is a party’s knowledge, in most instances, lay opinion will not

meet the requirements of Rule 701.” United States v. Dashner, No. 12-cr-00646, 2015

WL 3660331, at *3 (N.D. Cal. June 2, 2015) (citing United States v. Rea, 958 F.2d 1206,

1216 (2d Cir. 1992); United States v. Hauert, 40 F.3d 197, 200 (7th Cir. 1994)). That is

because “when a witness has fully described what a defendant was in a position to

observe, what the defendant was told, and what the defendant said or did, the witness’s

opinion as to the defendant's knowledge will often not be ‘helpful’ within the meaning of

Rule 701 because the jury will be in as good a position as the witness to draw the

inference as to whether or not the defendant knew.” Rea, 958 F.2d at 1216.

Moreover, before offering lay opinion testimony of any defendant’s intent, the

government must first show that “the witness’s testimony is based upon his or her

personal observation and recollection of concrete facts . . ., and that those facts cannot be

described in sufficient detail to adequately convey to the jury the substance of the

testimony.” Wactor v. Spartan Transp. Corp., 27 F.3d 347, 351 (8th Cir. 1994) (citation

omitted; emphasis added). Absent that showing, no witness should be permitted to testify

as to Defendant Salah’s state of mind. See, e.g., United States v. Whitworth, 856 F.2d

1268, 1284 (9th Cir. 1988) (abuse of discretion to permit lay witness to testify about

defendant’s state of mind on the basis of “common sense”) (cleaned up).

Lay law enforcement witnesses offered by the government should similarly not be

allowed to testify as to their interpretation of communications by Defendant Salah or the

6
CASE 0:22-cr-00223-NEB-DTS Doc. 427 Filed 01/10/25 Page 7 of 8

reasons for actions taken by Defendant Salah. In United States v. Peoples, 250 F.3d 630,

640 (8th Cir. 2001), the case agent offered lay testimony “about what the defendants were

thinking during . . . conversations,” that the defendant “went to [the victim’s] house to

murder [the victim],” about the reason the defendant had requested a loan (to pay a hit

man), and “her personal opinions” of what conversations involving the defendant meant.

The Peoples court explained that “When a law enforcement officer is not qualified as an

expert by the court, her testimony is admissible as lay opinion only when the law

enforcement officer is a participant in the conversation, has personal knowledge of the

facts being related in the conversation, or observed the conversations as they occurred.”

Id. at 641. Applying that standard, admission of the agent’s testimony was reversible

error because the agent’s “opinions were based on her investigation after the fact, not on

her perception of the facts.” Id. at 641.

At trial in this case, government agents called to testify should not be permitted to

testify about the meaning of communications by Defendant Salah or the reasons for

actions taken by Defendant Salah absent the kind of personal knowledge and observation

described in Peoples.

7
CASE 0:22-cr-00223-NEB-DTS Doc. 427 Filed 01/10/25 Page 8 of 8

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

File and source

File: 427.pdf
Size: 216,283 bytes
SHA-256: a5da6078066d1be2cf2cd3817b742a37438cf1b73dcbbad60a2a707baad146f8
Our copy: 427.pdf
Original: archive.org