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Home Source documents Court filing — United States v. Farah (Dkt. 431, D. Minn.)

Court filing — United States v. Farah (Dkt. 431, D. Minn.)

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        CASE 0:22-cr-00124-NEB-TNL Doc. 431 Filed 04/02/24 Page 1 of 7




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


UNITED STATES OF AMERICA,
                                                   DEFENDANTS’ MOTION IN
                     Plaintiff,                    LIMINE TO EXCLUDE
       vs.                                         EVIDENCE OFFERED
                                                   UNDER RULE 404(b)
ABDIAZIZ FARAH, et. al.,

                 Defendants.
________________________________________________________________________

                                       Introduction

       Mahad Ibrahim, Abdiaziz Farah, and Mukhtar Shariff, by and through their

undersigned attorneys, respectfully move the Court in limine for an Order preventing the

government from raising undisclosed 404(b) evidence and precluding recently-disclosed

404(b) evidence relating to Gateway Charter School’s contracts with Mind Foundry and

A&E Logistics. Such an Order is necessary to avoid a time-consuming “sideshow” mini-

trial that would unnecessarily confuse the jury.

                                        Argument

                The factual universe this case currently sits in is massive.

       This trial is currently calendared to run from April 22nd through May 17th, 2024.

The eight-defendant, forty-three-count Superseding Indictment brings money laundering,

fraud, and bribery allegations spanning many acts between interlinked defendants,

companies, sponsors, sites, and government regulators. The government has disclosed an
        CASE 0:22-cr-00124-NEB-TNL Doc. 431 Filed 04/02/24 Page 2 of 7




exhibit list that runs over 100 pages long (with thousands of individual exhibits) and its

intention to call over 200 witnesses. Likewise, the defendants have disclosed hundreds of

individual witnesses and hundreds of individualized exhibits to counter the case.

       In short, this is a sprawling case.

                        The proposed Rule 404(b) evidence at issue.

       On March 22, 2024, the government disclosed that it sought to admit three

different types of evidence under Rule 404(b).

       At issue here is the government’s final notice; its seeking to admit evidence that

Abdiaziz Farah "improperly” sent money from a charter school he founded and worked at

for years (Gateway Academy) to two companies that provided services to the school and

that were founded by Mukhtar Shariff and Mahad Ibrahim (A&E Logistics and Mind

Foundry). Unlike other 404(b) evidence disclosed by the government, the government

makes no claim that this 404(b) evidence is intrinsic to the charged offenses. This is

logical, as Gateway Academy is not alleged to be connected to any Federal Child

Nutrition fraud. Indeed, of the over 200 witnesses on the government’s witness list, none

are listed as being called to offer testimony regarding Gateway Academy.

       The government has instead offered the following as the stated purpose for

admission:

       “to show that [these defendants’] participation in the charged fraud scheme
       was not a mistake or accident, but rather that they acted with knowledge and
       fraudulent intent and as part of a plan to use their companies to fraudulently
       obtain money and convert it to their own use[,]”




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         CASE 0:22-cr-00124-NEB-TNL Doc. 431 Filed 04/02/24 Page 3 of 7




Admitting the Rule 404 evidence would markedly expand both the government’s case and
                               these defendants’ cases.

       Meeting this purpose the government requires the government to do what amounts

to proving a new, entirely different, case-in-chief.

       If the evidence is allowed, the government would have to establish what Gateway

Academy was, what each of these three defendants’ relationships to the school were,

what the school’s vendor selection processes were, that the transactions were fraudulent

and improper, and—because the stated purpose is to litigate these three defendants’

mindsets—proof that these defendants willfully acted with a fraudulent intent to convert

money.

       The defense counter would likewise be detailed. Among the possible avenues of

defense would be identifying nonprofit rules and regulations and showing how their

actions comported with them, pointing to regulatory oversight permitting the

relationships at issue, discussing oversight around the school’s auditing and financial

practices, identifying the legitimate provision of services by Mind Foundry and A&E

Logistics, and arguing the defendants had no willful misconduct even if there was a

technical violation.

       The jury will likely hear testimony from a wide variety of personnel: the school

principal, school administrators, the school’s accountants and legal professionals, and fact

witnesses relating to the services rendered. This will become not just a mini-trial but a

mini-trial on a sophisticated white-collar issue. These complex arguments could add a

week or more of trial time.


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         CASE 0:22-cr-00124-NEB-TNL Doc. 431 Filed 04/02/24 Page 4 of 7




                   The legal standard supports exclusion of this evidence.

   Under Fed. R. Evid. 404(b); evidence of such “other crimes, wrongs or acts is not

admissible to prove the character of a person in order to show action and conformity

therewith.” Evidence may be admitted under Rule 404(b) for other purposes “such as proof

of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake

or accident, provided that upon request by the accused, the prosecution in a criminal case

shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial

notice on good cause shown, of the general nature of any such evidence it intends to

introduce at trial.” Fed. R. Evid. 404(b).

   Defendants understand that under controlling Eighth Circuit precedent, Rule 404(b) is a

rule of inclusion, “and, as such, if evidence is offered for permissible purposes it is

presumed admissible absent a contrary determination.” United States v. Davis, 867 F.3d

1021, 1029 (8th Cir. 2017) (citations omitted). There are four criteria for evidence to be

admissible under Rule 404(b). Id. The prosecution must show that the evidence is “(1)

relevant to a material issue; (2) similar in kind and not overly remote in time to the crime

charged; (3) supported by sufficient evidence; and (4) higher in probative value than

prejudicial effect.” Id (citations omitted).

   The government cannot meet any of the criteria for admissibility under Fed R. Evid.

404(b) with respect to the Gateway STEM Academy evidence. The evidence is not relevant

to any material issue nor similar in kind to any charged offense. The government’s claim

that any transfer of funds was “improper” is without any evidence let alone sufficient

evidence.

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        CASE 0:22-cr-00124-NEB-TNL Doc. 431 Filed 04/02/24 Page 5 of 7




       Moreover, with respect to the fourth criteria, Federal Rule of Evidence 404(b) was

designed to prevent exactly this sort of side-show from injecting unnecessary collateral

confusion into an already incredibly complex and lengthy trial. Federal Rule of

Evidence 403 also bars the admission of such evidence where its probative value is

“substantially outweighed by a danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence.”

       Here, although the defendants maintain that the other risks abound, the primary

dangers are confusing the issues: “Confusion of the issues warrants exclusion of relevant

evidence if admission of the evidence would lead to litigation of collateral issues.”

Firemen's Fund Ins. Co. v. Thien, 63 F.3d 754, 758 (8th Cir. 1995); see also United States

v. Spellman, No. 8:21-CR-136, 2022 WL 16951400, at *7 (D. Neb. Nov. 15, 2022) (“If

introduction of the evidence risks creating a “sideshow at trial” by “drawing attention

away” from the issues in the case, a court may prevent its admission.”).

       The government’s accusations here are so complex that they could form the basis

of an entirely separate trial, and would necessitate a further expansion of the universe of

facts in the case as articulated above.

       These defendants stand ready to defend against the government’s accusations

regarding this 404(b) evidence, but the government’s accusations here are not what were

charged in the indictment: wire fraud, conspiracy to commit wire fraud, money

laundering, and conspiracy to commit money laundering. Rather, the government’s

proffered 404(b) evidence is a—highly speculative and entirely unproven—set of

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        CASE 0:22-cr-00124-NEB-TNL Doc. 431 Filed 04/02/24 Page 6 of 7




accusations regarding conjectured mismanagement of a tangential organization. The

government’s proposal leads to perilous grounds and it should be rejected.

                                      Conclusion

       Accordingly, the Court should enter an Order precluding the government from

offering this evidence.



Dated: April 2, 2024                      MAUZY LAW FIRM


                                          By: /s/ William Dooling
                                             William J. Mauzy (#68974)
                                             William R. Dooling (#0402244)
                                          650 Third Avenue South, Suite 260
                                          Minneapolis, MN 55402
                                          (612) 504-5533
                                          Email: wmauzy@mauzylawfirm.com
                                                   wdooling@mauzylawfirm.com

                                          ATTORNEYS FOR DEFENDANT MAHAD
                                          IBRAHIM


Dated: April 2, 2024                      BIRRELL LAW FIRM PLLC


                                          By: /s/ Ian S. Birrell
                                             Andrew S. Birrell (#133760)
                                             Ian S. Birrell (#0396379)
                                          333 South 7th Street, Suite 3020
                                          Minneapolis, MN 55402
                                          (612) 238-1939
                                          Email: andy@birrell.law
                                                    ian@birrell.law

                                          ATTORNEYS FOR DEFENDANT ABDIAZIZ
                                          SHAFII FARAH


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        CASE 0:22-cr-00124-NEB-TNL Doc. 431 Filed 04/02/24 Page 7 of 7




Dated: April 2, 2024                 GOETZ & ECKLAND P.A.


                                     By: /s/ Frederick J. Goetz
                                        /s/ Andrew H. Mohring
                                        Frederick J. Goetz (#185425)
                                        Andrew H. Mohring (#190731)
                                     Banks Building
                                     615 1st Avenue NE, Suite 425
                                     Minneapolis, MN 55413
                                     (612) 874-1552
                                      Email: FGoetz@goetzeckland.com
                                              amohring@goetzeckland.com

                                     ATTORNEYS FOR DEFENDANT MUKHTAR
                                     MOHAMED SHARIFF




                                      7


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