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Court filing — United States v. Farah (Dkt. 404, D. Minn.)

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       CASE 0:22-cr-00124-NEB-TNL Doc. 404 Filed 04/02/24 Page 1 of 3




                      UNITED STATES DISTRICT COURT
                          DISTRICT OF MINNESOTA
                       Criminal No. 22-124 (NEB/TNL)

UNITED STATES OF AMERICA,

                   Plaintiff,           GOVERNMENT’S MOTION IN LIMINE
                                        TO PRECLUDE IMPROPER
      v.                                DEFENSES

ABDIAZIZ SHAFII FARAH, et al.,

                   Defendants.

      The United States of America, by and through its attorneys, Andrew M. Luger,

United States Attorney for the District of Minnesota, and Joseph H. Thompson,

Harry M. Jacobs, Matthew S. Ebert, and Chelsea A. Walcker, Assistant United States

Attorneys, respectfully submits the following motion in limine to exclude improper

defenses.

      A.     Advice-of-Counsel Defense

      Counsel have not indicated that they intend to offer an advice of counsel

defense for any defendant. Should that position change, however, the defendants are

nonetheless precluded from seeking an advice-of-counsel defense in this case.

      Alleging that one acted on advice of counsel is not a freestanding defense but

can be used to negate the mens rea of “wilful and unlawful intent.” Williamson v.

United States, 207 U.S. 425, 453 (1908); see also United States v. Blagojevich,

794 F.3d 729, 741 (7th Cir. 2015) (citation omitted). In other words, an advice-of-

counsel defense can only be pursued if the charged offense is a specific-intent crime

or has a scienter requirement of willfulness. United States v. Powell, 513 F.2d 1249,
        CASE 0:22-cr-00124-NEB-TNL Doc. 404 Filed 04/02/24 Page 2 of 3




1251 (1975). “To rely upon the advice of counsel in his defense, a defendant must show

that he: (i) fully disclosed all material facts to his attorney before seeking advice; and

(ii) actually relied on his counsel’s advice in the good faith belief that his conduct was

legal.” United States v. Rice, 449 F.3d 887, 897 (8th Cir. 2006); see also Model Crim.

Jury Instr. 8th Cir. § 9.09 (2021).

      The defendants have not presented any evidence supporting an advice-of-

counsel defense, let alone met their burden of proof. Absent such a showing, they are

not entitled to assert any advice-of-counsel defense at trial.

      B.     Mistake-of Law Defense

      Defendants cannot absolve themselves of liability by claiming ignorance or a

misapprehension of the law. See United States v. Moreira-Bravo, 56 F.4th 568,

478 (8th Cir. 2022) (noting “the common maxim, familiar to all minds, that ignorance

of the law will not excuse any person, either civilly or criminally”). Any argument

that they mistakenly relied on their belief that they were in compliance with the law

would invite jury nullification based on a mistake-of-law defense. That would be

improper. The law is plain that a defendant cannot suggest in any way that the jury

should acquit him even if it finds that the government has met its burden of proof.

See United States v. Thomas, 116 F.3d 606, 614 (2d Cir. 1997) (“We categorically

reject the idea that, in a society committed to the rule of law, jury nullification is

desirable or that courts may permit it to occur when it is within their authority to

prevent.”); Scarpa v. Dubois, 38 F.3d 1, 11 (1st Cir. 1994) (noting that “defense

counsel may not press arguments for jury nullification in criminal cases”); United



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        CASE 0:22-cr-00124-NEB-TNL Doc. 404 Filed 04/02/24 Page 3 of 3




States v. Sepulveda, 15 F.3d 1161, 1190 (1st Cir. 1993) (“Neither court nor counsel

should encourage jurors to exercise [nullification] power. . . . A trial judge, therefore,

may block defense attorneys’ attempts to serenade a jury with the siren song of

nullification.”).

Dated: April 2, 2024                            Respectfully Submitted,

                                                ANDREW M. LUGER
                                                United States Attorney

                                                /s/Chelsea A. Walcker

                                         BY:    JOSEPH H. THOMPSON
                                                MATTHEW S. EBERT
                                                HARRY M. JACOBS
                                                CHELSEA A. WALCKER
                                                Assistant United States Attorneys




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