Motion to Modify Preliminary Jury Instructions — United States v. Abdulkadir Nur Salah (D. Minn., Doc. 487)

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A Motion to Modify Preliminary Jury Instructions, filed 01/25/25 as Doc. 487 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. Defendant Salah responds to the court's request at the January 16, 2025 pretrial conference for proposed amendments. He argues that, after Snyder v. United States, the federal programs bribery instruction must require a corrupt agreement made before the official act and should drop the words offered and gave. He also objects to the government's proposed references to coconspirators and fraudulent participation. On concealment money laundering, he says the defense believes it agrees with the prosecution that the instruction should distinguish 18 U.S.C. 1956 from 1957 and include the substantive elements. The motion is dated January 25, 2025.

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“Motion to Modify Preliminary Jury Instructions — United States v. Abdulkadir Nur Salah (D. Minn., Doc. 487).” 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-487-d-m-ed591e0d0d/, SHA-256 c3e070bdfda8f9e04171c8c0f9132c0a7e972cd4999053e80f912a5bfdceac64.

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CASE 0:22-cr-00223-NEB-DTS Doc. 487 Filed 01/25/25 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 TO MODIFY
PRELIMINARY JURY
4. ABDULKADIR NUR SALAH, INSTRUCTIONS

Defendant.

At the pretrial conference on Thursday, January 16, 2025, the Court requested that

the parties submit their proposed amendments to the Court’s proposed preliminary jury

instructions. Defendant moves to revise the Court’s preliminary jury instructions as

follows.

I. Federal Programs Bribery.

A. Proposed Revisions to The Court’s Proposed Preliminary Instruction.

The Court’s instruction, with Defendant’s proposed revisions in tracked changes

(proposed additions in bold, proposed deletions in strikethrough), is reproduced below.

Federal Programs Bribery (Giving or Agreeing to Give a Bribe), has
four elements:

One, Aimee Marie Bock or Abdikerm Eidleh (depending on the count you
are considering), were agents of Feeding Our Future;

Two, before Bock or Eidleh sponsored the defendant’s participation in
the Federal Child Nutrition Program, the defendant and either Bock or
Eidleh corruptly reached an agreement1 under which the defendant

“[B]ribery requires that the official have a corrupt state of mind and accept (or agree
1

to accept) the payment intending to be influenced in the official act.” Snyder v. United
CASE 0:22-cr-00223-NEB-DTS Doc. 487 Filed 01/25/25 Page 2 of 8

corruptly gave or agreed to give2 money or something of value to Bock
or Eidleh in connection with that sponsorship;

before Feeding Our Future sponsored the defendant’s participation in the
Federal Child Nutrition Program, the defendant corruptly offered, gave, or
agreed to give money or something of value to Bock or Eidleh in
connection with that sponsorship;

Three, the transaction sponsorship of the defendant’s participation in the
Federal Child Nutrition Program involved something of value of $5,000
or more; and

Four, Feeding Our Future received benefits in excess of $10,000, pursuant
to the Federal Child Nutrition Program, within a one-year period beginning
no earlier than twelve months before the commission of the offense or that
ends no later than twelve months after the commission of the offense.

B. Basis for Proposed Revision.

The Snyder Court made clear that under 18 U.S.C. § 666, a payment made after an

official act is a non-criminal gratuity, unless the payment is made pursuant to a

preexisting agreement to influence the official act. 603 U.S. 1. In other words, where a

payment is made after an official act, there must be proof beyond a reasonable doubt of

an agreement to influence the official act that preceded the official act itself. A

preexisting agreement between the alleged bribe-giver and receiver is critical, because

any agreement, payment, or offer to pay a bribe made after the official act necessarily

cannot have a corrupting influence on the official act. Snyder, 603 U.S. 1, 6 (“Gratuities

States, 603 U.S. 1, 11 (2024). Accordingly, the instruction should include the
requirement of a corrupt agreement, not merely an offer to make a payment.
2
The Indictment does not allege that any offer of a bribe was made prior to any
official act, which is what would be required under Snyder to prevent a conviction based
on a gratuity. As a result, there is no basis to include the “offer” language in the jury
instruction.

2
CASE 0:22-cr-00223-NEB-DTS Doc. 487 Filed 01/25/25 Page 3 of 8

after the official act are not the same as bribes before the official act. After all, unlike

gratuities, bribes can corrupt the official act—meaning that the official takes the act for

private gain, not for the public good.”)

Accordingly, the Court’s preliminary instruction should be amended to make clear

that the United States must prove both an agreement preceding an identifiable official act,

and that the defendant corruptly paid a bribe consistent with that agreement at some later

time. Snyder v. United States, 603 U.S. 1 (2024); United States v. Macrina, 109 F.4th

1341, 1351 (11th Cir. 2024) (“[T]he [Snyder] Court made clear that the key difference

between a gratuity and a bribe is whether the official and the payer agreed to a payment

for the official act. If there were an agreement before the official act was complete to

make a payment for that act, the payment received after the act could still be considered a

bribe.”) (citation omitted); United States v. Bock, 22-cr-223 NEB-DTS (ECF No. 402) at

15 (“To charge federal programs bribery post‐Snyder, the bribe‐giver and the bribe‐taker

must have come to their quid pro quo agreement before the official act. Snyder, 603 U.S.

at 6.”); Id. at 18 (“At trial, the Government will need to prove beyond a reasonable doubt

that defendants formed a quid pro quo agreement before obtaining Feeding Our Future’s

sponsorship.”).

The Court should also remove the references to “offer[ing]” or “g[iving]”

something of value in element two, because the Indictment does not allege that there was

any such offer or payment by any defendant before any specified official act undertaken

by Bock or Eidleh. (See, e.g. ECF No. 1, Indictment at ¶¶ 31, 180.) To the contrary, the

Indictment alleges that Feeding our Future’s employees solicited bribes (as part of an

3
CASE 0:22-cr-00223-NEB-DTS Doc. 487 Filed 01/25/25 Page 4 of 8

alleged “pay-to-play” arrangement), and that other defendants allegedly agreed to pay

them. (Id.) Accordingly, it would be a significant variance from the Indictment for the

United States to now suggest that any defendant made any offer or payment before an

official act. The United States has not identified any evidence of any such preceding

offer or payment to date. Rather, as the government seemed to concede both prior to and

at the pretrial hearing with the Court, the only way the United States can prove a bribe

under the Indictment as pleaded is by proving an agreement to corrupt or influence a

specified official act made before that act was taken.

Removal of the “offered” and “gave” language from the proposed instruction, as

reflected in the Defendant’s proposal, is therefore necessary to conform the instruction to

the Indictment and Snyder. The United States had every opportunity to supersede the

Indictment after Snyder, but it chose not to. The Court should hold the government to the

Indictment as pleaded and foreclose any attempt to now suggest for the first time that any

offer or payment was made before any identifiable official act.

The Court should also clarify that the “transaction” at issue in element number

three is in fact the sponsorship of the defendant’s participation in the Federal Child

Nutrition Program. This is necessary to avoid any misunderstanding that the amount of

the alleged bribe or payment satisfies the $5000 requirement. Section 666(a)(2) makes

clear that the alleged bribe can be valued at any amount, but that the transaction (e.g. a

government contract) that was entered into as the result of a corrupted official act must be

valued at $5000 or more.

4
CASE 0:22-cr-00223-NEB-DTS Doc. 487 Filed 01/25/25 Page 5 of 8

C. The Court Should Reject the United States’ Proposed Revisions.

The Court should also reject the government’s suggested revision defining the

official act as “sponsoring or continuing to sponsor the defendant’s and/or his co-

conspirators’ fraudulent participation in the Federal Child Nutrition program.” The

government’s proposed “continuing to sponsor” language—besides being inconsistent

with the statutory language and Snyder—would make it impossible for the jury, the

Court, or the defense to identify which official act was allegedly corrupted or influenced

by the alleged bribe.

“Continuing to sponsor” a defendant’s participation in the Federal Child Nutrition

Program could be construed to include a wide array of nominal activities (such as

reviewing an email, receiving site documentation, or conducting a monitoring visit) or

even complete inaction (i.e. failing to terminate a sponsorship at any time). Such an

overbroad and unsupported construction of the statute and the Indictment would make it

impossible for the Court, the defense, or the jury to identify which specific official act

was allegedly influenced by any alleged agreement to pay a bribe.

This lack of clarity would create a host of problems with any bribery conviction

that the jury may reach. Without a specific identification of the official act at issue and

its timing with respect to any alleged agreement or payment, the jury would have no way

to determine whether the alleged agreement to influence the official act preceded the act

itself, as required under Snyder to support a bribery conviction. The result would be a

significant risk that the jury would improperly convict the Defendants of a non-criminal

gratuity. Indeed, without specifically identified alleged official acts at issue, the

5
CASE 0:22-cr-00223-NEB-DTS Doc. 487 Filed 01/25/25 Page 6 of 8

Defendants and the Court would be unable to determine after trial whether any bribery

convictions comported with Snyder. Additionally, without clarity regarding the specific

official act at issue, the United States’ revision would risk a lack of unanimity on any

bribery verdict. Further, such a lack of clarity on which official act was allegedly

influenced would prevent the jury from appropriately assessing the third and fourth

elements of Federal Programs Bribery, which require a focus on a specific official

decision that resulted in a specific business transaction being executed. See 18 U.S.C. §

666.

The Court should also reject the United States’ suggestion of inserting the

concepts of “coconspirators” and “fraud” into this instruction. The United States’

proposed bribery instruction suggests describing the official act as “sponsoring or

continuing to sponsor the defendant’s and/or his co-conspirators’ fraudulent

participation in the Federal Child Nutrition program.” ECF No. 419 at pp. 7-8 (emphasis

added). While the defense agrees that an alleged bribe can be designed to influence a

decision to sponsor any person’s participation in the Federal Child Nutrition Program,

there is no cause to incorporate the concept of coconspirators into the instruction. This is

a case with three charged conspiracies, one of which is allegedly to commit Federal

Program Bribery. Including the concept of a conspiracy into the Court’s instruction

regarding the Federal Programs Bribery substantive offense will only confuse the jury,

and incorrectly suggest that the jury must combine its analysis of the conspiracy counts

and the substantive counts.

6
CASE 0:22-cr-00223-NEB-DTS Doc. 487 Filed 01/25/25 Page 7 of 8

The government’s proposed reference to coconspirators emphasizes a particularly

confusing aspect of the government’s theory of prosecution in this case after Snyder. The

government suggests that the defendants are guilty both of a conspiracy to commit

Federal Programs Bribery (which requires an agreement) and also substantive bribery

offenses (which, after Snyder, also require proof of an agreement where the payment is

made after the official act). Thus, in this case, it is difficult to discern any difference

between the elements of a conspiracy to commit bribery and bribery itself. Bootstrapping

the concept of “coconspirators” into the substantive offense’s elements merely highlights

the Indictment’s infirmities post-Snyder.

Similarly, the concept of “fraudulent participation” should not be confused with

the separate bribery counts of the indictment. The Court will separately instruct the jury

regarding the wire fraud charges, and there is no reason to further confuse matters by

referencing the amorphous concept of “fraud” in this instruction.

II. Concealment Money Laundering.

The defense believes it is in agreement with the prosecution that the Court should

revise its money laundering instructions in two ways. First, the Court should differentiate

between the conspiracy to commit concealment money laundering (under 18 U.S.C. §

1956) and substantive counts charging violations of the spending statute (18 U.S.C. §

1957). As written, the Court’s instruction incorrectly suggest that the charged conspiracy

only alleges an agreement to violate Section 1957, which is incorrect.

Second, the Court should include the substantive elements of concealment money

laundering, which is the object of the charged conspiracy.

7
CASE 0:22-cr-00223-NEB-DTS Doc. 487 Filed 01/25/25 Page 8 of 8

Dated: January 25, 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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