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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
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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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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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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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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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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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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
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