Motion in Limine No. 10 on Co-Conspirator Statements — United States v. Abdulkadir Nur Salah (D. Minn., Doc. 432)

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Defendant Abdulkadir Nur Salah's Motion in Limine No. 10 Regarding Co-Conspirator Statements, filed 01/10/25 as Doc. 432 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 excluding and restricting co-conspirator hearsay under Federal Rule of Evidence 801(d)(2)(E). He argues that the government is expected to take an overly broad view of co-conspirator statements about food sites the indictment does not cover, which risks unfair prejudice and a mistrial. He sets out the Bell procedure for conditional admission and asks the court to consider requiring the government to prove admissibility outside the trial for statements tied to sites not referenced in the indictment. The motion is dated January 10, 2025.

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      CASE 0:22-cr-00223-NEB-DTS            Doc. 432     Filed 01/10/25    Page 1 of 4




                    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. 10
                                                  REGARDING CO-CONSPIRATOR
4. ABDULKADIR NUR SALAH,                                STATEMENTS

                                 Defendant.



       Defendant Abdulkadir Nur Salah requests an Order excluding and restricting

improper co-conspirator hearsay.

       Based on the extremely voluminous discovery produced by the United States and

its voluminous exhibit list, it is expected to take an untenably broad view regarding co-

conspirator statements under Federal Rule of Evidence 801(d)(2)(E). The government’s

position appears to be that any email, text message, site application, or other

communication related to any food distribution site associated with Feeding our Future

constitutes a co-conspirator statement admissible in the trial against all of these

defendants, even though the Indictment itself clearly limits the scope of the alleged

conspiracy to a well-defined set of sites and individuals.

       In addition to unnecessarily elongating the trial, the United States’ broad co-

conspirator strategy creates a significant risk of unfair prejudice and a potential mistrial if

tangential alleged coconspirator statements are conditionally admitted at trial.       This is

because the farther the United States strays from focusing on co-conspirators that are
      CASE 0:22-cr-00223-NEB-DTS          Doc. 432     Filed 01/10/25     Page 2 of 4




clearly encompassed by the Indictment’s language, the more likely it will be that it will

be unable to tie up its loose ends by establishing the prerequisites in Rule 801(d)(2)(E).

       In this Circuit, courts typically follow the Bell procedure for the admission of co-

conspirator statements. United States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978). As

explained in Bell:

       (1) If the prosecutor propounds a question which obviously requires a
       witness to recount an out-of-court declaration of an alleged coconspirator,
       the court, upon a timely and appropriate objection by the defendant, may
       conditionally admit the statement. At the same time, the court should, on
       the record, caution the parties (a) that the statement is being admitted
       subject to defendant’s objection; (b) that the government will be required to
       prove by a preponderance of the independent evidence that the statement
       was made by a coconspirator during the course and in furtherance of the
       conspiracy; (c) that at the conclusion of all the evidence the court will make
       an explicit determination for the record regarding the admissibility of the
       statement; and (d) that if the court determines that the government has
       failed to carry the burden delineated in (b) above, the court will, upon
       appropriate motion, declare a mistrial, unless a cautionary instruction to
       the jury to disregard the statement would suffice to cure any prejudice.

       (2) After a ruling on the record that the out-of-court declaration is
       admissible under Rule 801(d)(2)(E), the court may submit the case to the
       jury. The court should not charge the jury on the admissibility of the
       coconspirator's statement, but should, of course, instruct that the
       government is required to prove the ultimate guilt of the defendant beyond
       a reasonable doubt. An appropriate instruction on credibility should be
       given, and the jury should be cautioned with regard to the weight and
       credibility to be accorded a coconspirator’s statement.

Id.

       To qualify for admission the prosecution must prove by a preponderance of the

evidence that “(1) a conspiracy existed; (2) both the declarant and the defendant were

members of the conspiracy; and (3) the declarant made the statement in the course and in

furtherance of the conspiracy.” United States v. Arias, 252 F.3d 973, 977 (8th Cir. 2001).


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These are “preliminary questions of fact” concerning the admissibility of the evidence

that must be resolved by the court before the evidence is admissible. See Bourjaily v.

United States, 483 U.S. 171, 175 (1987); see also Fed. R. Evid. 104 (“[T]he court must

decide any preliminary question about whether… evidence is admissible.”). The Court

can consider an alleged coconspirator’s statement when making this preliminary

admissibility determination, but “such a [coconspirator] statement cannot provide the sole

evidentiary support for its own admissibility.”

       By focusing on tangential hearsay involving sites that have nothing to do with the

operative Indictment, the government will create prejudice, and ultimately will be unable

to satisfy its preliminary burden to demonstrate admissibility.        The circumstances

threaten to cause the prejudice described by Justice Jackson in Krulewitch:

       As a practical matter, the accused often is confronted with a hodgepodge of
       acts and statements by others which he may never have authorized or
       intended or even known about, but which help to persuade the jury of
       existence of the conspiracy itself. In other words, a conspiracy often is
       proved by evidence that is admissible only upon assumption that conspiracy
       existed. The naive assumption that prejudicial effects can be overcome by
       instructions to the jury, all practicing lawyers know to be unmitigated
       fiction.

Krulewitch v. United States, 336 U.S. 440, 453 (1949) (Jackson, J., concurring) (internal

citations omitted) (emphasis added).

       In such circumstances, the Court should consider not following the Bell

conditional-admission procedure for any alleged co-conspirator statement that does not

involve a co-conspirator whose conduct is clearly within the scope of this Indictment’s

language. The government should be put to its proof outside of the trial to demonstrate



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      CASE 0:22-cr-00223-NEB-DTS           Doc. 432     Filed 01/10/25     Page 4 of 4




the admissibility of such tangential statements involving irrelevant food distribution sites

not referenced in the Indictment.        This more restrictive approach will prevent a

significant risk of unfair prejudice to the defendants and a potential mistrial.



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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