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Court filing — United States v. Farah (Dkt. 564, D. Minn.)

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         CASE 0:22-cr-00124-NEB-TNL Doc. 564 Filed 06/10/24 Page 1 of 14




                            UNITED STATES DISTRICT COURT

                                  DISTRICT OF MINNESOTA


UNITED STATES OF AMERICA,
                                                       Case No.: 22-CR-124 (7) (NEB/TNL)
                Plaintiff,
                                                       DEFENDANT’S MOTION FOR
vs.                                                    RELEASE PENDING SENTENCING

MUKHTAR MOHAMED SHARIFF,

                Defendant.




        Mukhtar Mohamed Shariff, through counsel, respectfully moves the

Court for an Order allowing his release pending sentencing. We ask that he

be released from the custody of the United States Marshal Service based on

the developments and changed circumstances outlined below. These facts

show by clear and convincing evidence that Mr. Shariff poses neither a risk of

flight nor a danger to the community. As recommended by the Office of

Probation and Pretrial Services, he should be released on the conditions

previously imposed. 1 There is neither claim nor evidence that he has violated

any of these.




1 “If found guilty. given the defendant's general compliance on supervision, this officer would recommend

that he be continued on bond under the same terms and conditions previously imposed.” (ECF 457).
        CASE 0:22-cr-00124-NEB-TNL Doc. 564 Filed 06/10/24 Page 2 of 14




                                      INTRODUCTION

       On June 7, 2024, the jury in this case convicted Mr. Shariff of four of the

six counts charged against him in the superseding indictment in this case.

(ECF 57, 551). He was detained before the verdict, at the conclusion of a

detention hearing on June 3, 2024. (ECF 540, 547). His detention was

continued in a post-verdict, text-only order. (ECF 552).

       In explaining its decision to detain Mr. Shariff, the Court stated that the

evidence and case circumstances showed an alleged scheme to bribe a juror

posing concerns of juror safety. (ECF 547 at p. 8). The Court did specifically

note that “[i]f additional facts come to light about the alleged bribery scheme,

the Court can and will reconsider its decision.” (Id. at p. 9). The defense noted

and reserved its right to return to the question of release as new information

developed. That time has come.

                                            FACTS

       On September 13, 2022, a federal grand jury returned a 43-count

Superseding Indictment against Mukhtar Shariff and seven co-defendants,2




2       Co-defendants, listed in the following order, include Abdiaziz Shafii Farah, Mohamed Jama
Ismail, Mahad Ibrahim, Abdimajid Mohamed Nur, Said Shafii Farah, Abdiwahab Maalim Aftin, and
Hayat Mohamed Nur. Mr. Shariff is the seventh of eight nonalphabetically listed defendants. (Id.).




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charging them with participating in a $40 million scheme to defraud a

collection of programs it referred to as the Federal Child Nutrition Program.

(ECF 57). Among other things, the indictment alleged that this group of

defendants fraudulently misappropriated $40 million in program funds by

creating dozens of shell companies to enroll in the Program as Federal Child

Nutrition sites and falsely claiming to serve meals to thousands of children a

day from April 2020 to January 2022. (Id. at p. 4). Mr. Shariff was specifically

charged with six counts, which include conspiracy to commit wire fraud (Count

1), wire fraud (Count 8), conspiracy to commit money laundering (Count 20),

money laundering (Count 31), conspiracy to commit federal programs bribery

(Count 13), and federal programs bribery (Count 15). (ECF 57).

       On April 22, 2024, a trial of seven of these defendants commenced in the

United States District Court for the District of Minnesota before the Honorable

Nancy E. Brasel.3 (ECF 549 at ¶ 2). During voir dire, counsel for the

government, counsel for the defense, and the seven defendants had access to

the names of potential jurors via “juror lists” provided by the Court. (Id. at ¶

4). During the first week of trial, a jury was selected and seated. (Id. at ¶ 3).




3 Abdiaziz Shafii Farah, Mohamed Jama Ismail, Abdimajid Mohamed Nur, Said Shafii Farah,
Abdiwahab Maalim Aftin, Mukhtar Mohamed Shariff, and Hayat Mohamed Nur. (Id.)




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Upon conclusion of voir dire, the Court instructed counsel and the seven

defendants to return their juror lists. (Id. at ¶ 4). Despite the Court’s

instruction, two of lists were not returned. (Id. at ¶ 5). The numbering

affiliated with the missing lists did not correspond with the lists distributed to

Mr. Shariff’s table or team. (Id.). Further, upon information and belief, counsel

for Mr. Shariff and Mr. Shariff himself returned the juror lists made available

to them in accordance with the Court’s instruction. (Id. at ¶ 6). Mr. Shariff did

not write down or otherwise record the name or information of any prospective

or seated juror. (Id.).

      Throughout the trial, the general public has lacked access to the jurors’

names, and no juror has been referred to by name on the record. (ECF 547 at

p. 5). Among those selected to serve in the trial was Juror #52. (ECF 549 at ¶

3).

      On Monday, June 3, 2024, the day trial was scheduled to conclude, the

Court, counsel for the government, and counsel for the defense learned of an

attempt to bribe Juror #52. (ECF 547 at p. 4). Assistant United States

Attorney Joseph Thompson represented to the Court and defense counsel that

an investigation initiated by the Spring Lake Police Department revealed that

a woman had approached the home of Juror #52 during the evening of June 2,




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2024, and handed a gift bag containing $120,000 cash to a relative of Juror #52

that had answered the door. (Id.). Mr. Thompson further stated that the

woman, who had used Juror #52’s first name, instructed the relative to tell

Juror #52 there would be more “presents” to come, if the juror voted to acquit

all Defendants. (Id.).

      During the June 3, 2024, proceedings, the Court Ordered that the

defendants surrender their cell phones to law enforcement, to effectively

“freeze” the scene pending a search warrant application. (Search Warrant and

application, Docket No. 24-mj-382, ECF 1, at ¶ 19). Following a detention

hearing later that day, the Court further ordered that the defendants be

immediately detained by the United States Marshal Service pending a verdict,

due to concerns of jury tampering, and ultimately, juror safety. (ECF 547 at

pp. 8-9)

      On June 3, 2024, FBI Special Agent Travis Wilmer applied for a search

warrant, signed by the Honorable Elizabeth Cowan Wright, to search the

seven defendants’ cellular devices for evidence related to the attempted

bribery of Juror #52. (Docket No. 24-mj-382, ECF 1). In relevant part, the

application states:

      On June 2, 2024-the night before trial was set to conclude-at
      approximately 8:50pm, a woman approached the home of Juror #52 and




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           rang the doorbell. Juror #52 was not home at the time. A relative of
           the juror answered the door. The relative described the woman as a
           black woman, possibly Somali, with an accent, wearing a long black
           dress. The woman handed a gift bag to the relative and said it was a
           present for Juror #52. The woman used Juror #52's first name. The
           woman told the relative to tell Juror #52 to say not guilty tomorrow
           and there would be more of that present tomorrow. After the woman
           left, the relative looked in the gift bag and saw it contained a
           substantial amount of cash. When Juror #52 returned home and was
           told of the encounter, Juror #52 immediately called 911 to report the
           incident . . ..

(Id. at ¶ 18 (emphasis added)).

           Prior to June 3, 2024, Mr. Shariff had never been detained. Indeed, the

government did not seek Mr. Shariff’s detention during his September 20,

2022, initial appearance, and he has been on release status under minimal

conditions of supervision throughout the case. (See ECF 108). The Office of

Probation and Pretrial Services also recommends if found guilty, Mr. Shariff

be continued on bond under the same terms and conditions previously

imposed, given Mr. Shariff’s general compliance on supervision. (ECF 452 at

p. 2). 4

           Mr. Shariff currently remains in the custody of the United States

Marshal Service. Since his detainment, no evidence has been presented




4 The conditions include, among other things, surrendering of his passport and making no effort to

obtain a new passport. (Id.).




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suggesting that Mr. Shariff was involved in the attempt to bribe Juror #52.

The FBI has, however, since raided the home of defendant Abdiaziz Farah.

Mr. Shariff, through counsel, has requested that the Government produce the

application in support of this search warrant as it is sure to provide

additional facts about the alleged bribery scheme. As of the filing of the

motion, the Government has not provided the requested information. It is

known, however, that law enforcement has not searched Mr. Shariff’s home

in connection with the alleged bribery scheme, and we believe that the facts

alleged in the warrant and its supporting documentation will support Mr.

Shariff’s release.



                                  ANALYSIS

      As augmented by the developments since the Court last considered the

questions of release and detention in this case, the facts establish by clear

and convincing evidence that Mr. Shariff is neither a risk of flight nor a

danger to the community, let alone that he is such a serious risk that

detention is the only recourse to reasonably assure public safety and his

future appearances. Pursuant to 18 U.S.C. § 3153, the provisions of which




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apply in the aftermath of the verdicts, he should be released pending

sentencing.

      § 3153 calls for release pending sentencing in the presence of “clear and

convincing evidence that the person is not likely to flee or pose a danger to

the safety of any other person or the community . . ..” When such a finding is

made, the Bail Reform Act calls for release on personal recognizance or

unsecured appearance bond, or release on conditions. 18 U.S.C. §§ 3143,

3142 (b) and (c).

      If the judicial officer determines that [personal recognizance]
      release will not reasonably assure the appearance of the person
      as required or will endanger the safety of any other person or the
      community, such judicial officer shall order the pretrial release of
      the person . . . subject to the least restrictive further condition, or
      combination of conditions, that such judicial officer determines
      will reasonably assure the appearance of the person as required
      and the safety of any other person and the community . . . 5

      The language of the statute is mandatory: where applicable, the court

“shall order the pretrial release” of the defendant unless the court determines

that “no condition or combination of conditions will reasonably assure the

appearance of the person as required and the safety of . . . the community.”

See 18 U.S.C. §§ 3142 (b), (c) & (e).




5     18 U.S.C. § 3142(c)(1) (emphasis added).




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         CASE 0:22-cr-00124-NEB-TNL Doc. 564 Filed 06/10/24 Page 9 of 14




      The bail statute does not require a guarantee that a defendant will

appear as required and that their release poses no threat to the community.

All that is required is an “objectively reasonable” assurance that the

defendant will appear. See, e.g., United States v. Orta, 760 F.2d 887, 892

(8th Cir. 1985) (en banc); United States v. Fortna, 769 F.2d 243, 250 (5th Cir.

1985).

      The structure of the statute mandates every form of release be
      considered before detention may be imposed. That structure
      cannot be altered by building a ‘guarantee’ requirement atop the
      legal criterion erected to evaluate release conditions in individual
      cases.

Orta, 760 F.2d at 892.

      Nature and Circumstances of the Offense

      On September 13, 2022, a federal grand jury returned a 43-count

Superseding Indictment against Mr. Shariff and seven others, charging

defendants with participating in a $40 million scheme to defraud the federal

government. Mr. Shariff was charged with six counts, including conspiracy to

commit wire fraud and wire fraud, conspiracy to commit money laundering and

money laundering, and conspiracy to commit federal programs bribery and

federal programs bribery. The nature and circumstances of these charged

offenses are non-violent, white-collar offenses. Indeed, at no time prior to




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June 3, 2024, had Mr. Shariff’s detention been sought or ordered. He was

supervised, without significant incident, since September 13, 2022. Concerns of

flight and dangerousness have never been raised, and no modifications of his

release conditions have been pursued.

      Moreover, the issue under the Bail Statute is not whether Mr. Shariff

committed a serious offense but whether it is likely that he will commit new

crimes if he is released, indeed, if that risk is so high that it cannot be

mitigated by restrictions short of incarcerating him. See United States v.

Dominguez, 783 F.2d 702, 707 (7th Cir. 1986) (detention finding “cannot be

based on evidence that he has been a danger in the past, except to the extent

that his past conduct suggests the likelihood of future misconduct”); United

States v. Jeffries, 679 F. Supp. 1114, 1118 (M.D. Ga 1988) (danger to

community in narcotics context is danger of continued trafficking; thus,

“focus should be on future conduct”).

      In other words, is he a danger now? The developments over the course

of the past week, including the verdicts, show that he is not.

      Until June 3, 2024, Mr. Shariff presented no concerns of flight or danger

to the community. Mr. Shariff’s detainment was precipitated solely by the

attempted bribery of Juror #52, for which there is no evidence to suggest Mr.




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Shariff was involved. During the proceedings on Monday, June 3, 2024, the

government represented to the Court and counsel, among other things, that the

woman who appeared at Juror #52’s home with a $120,000 bag of cash,

instructed the juror’s relative to tell Juror #52 there would be more if the juror

“voted to acquit all Defendants”. Such commentary strongly implied the

alleged bribe was made on behalf of all defendants. In actuality, FBI Special

Agent Wilmer’s search warrant application explicitly states “the woman told

the relative to tell Juror #52 to say not guilty tomorrow and there would be

more of that present tomorrow.” As compared to the government’s broad and

sweeping “vote to acquit” statement, the search warrant application’s “say

not guilty” language is more narrowly tailored and less likely representative

of all defendants.

      The government further represented to the Court and counsel that the

woman had used Juror #52’s first name, information only accessible to

counsel and the seven defendants. In doing so, the government insinuated

the alleged bribery attempt had to have been carried out by one of the seven

defendants. Mr. Shariff does not have access to Juror #52’s personal

information. Upon conclusion of voir dire, counsel for Mr. Shariff, as well as

Mr. Shariff himself, returned the juror lists made accessible to them in




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      CASE 0:22-cr-00124-NEB-TNL Doc. 564 Filed 06/10/24 Page 12 of 14




accordance with the Court’s instruction. The numbering affiliated with the two

missing juror lists did not correspond with the lists distributed to Mr. Shariff’s

table. Furthermore, Mr. Shariff never wrote down or otherwise recorded the

name or information for any prospective or seated juror. Mr. Shariff therefore

does not have access to Juror #52’s personal information, information necessary

to carry out the alleged bribery scheme.

      Finally, despite his cellular device being within the FBI’s custody over

the last week, there has been no evidence that Mr. Shariff was involved in the

attempt to bribe Juror #52. The FBI has, however, since raided the home of

defendant Abdiaziz Farah. Mr. Shariff’s home was not raided. This strongly

suggests that the investigation conducted to date has not revealed evidence

indicating or suggesting that Mr. Shariff was involved in the alleged bribery

attempt. Mr. Shariff’s detention is therefore unnecessary. He is not a danger

to any juror, or to the community in general.

History and Characteristics of the Offender

      The uncontested details of Mr. Shariff’s life and background are such

that the Court can find clear and convincing evidence that his release poses

neither risk of flight or danger, and that any concerns can be addressed by

conditions short of incarceration. Mr. Shariff emigrated to the United States




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      CASE 0:22-cr-00124-NEB-TNL Doc. 564 Filed 06/10/24 Page 13 of 14




with his family at the age of five after having resided in a refugee camp

during the outbreak of the Somali Civil War. Accordingly, his ties to the

community run deep. Mr. Shariff has extensive family residing within the

State of Minnesota. Such family includes, but is not limited to, his wife, nine-

year-old daughter, three-year-old son, and his brother. Indeed, as proffered

at the June 3, 2024, detention hearing, various family members were

consistently present throughout Mr. Shariff’s six-week trial to offer their

support. Mr. Shariff has also surrendered his passport as ordered and never

made any attempt to apply for a new passport.

      Mr. Shariff has no criminal history. His history further includes no

failure to appear for court, despite nearly two years of ongoing litigation.

Community-based placements including with his wife are available, a result

that will allow Mr. Shariff to provide needed support to his wife and children.

      Conditions short of incarceration will satisfy the purposes of the

Bail Reform Act and will reasonably assure Mr. Shariff’s appearance as

required and the safety of the community. In such cases, release is

appropriate.




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      CASE 0:22-cr-00124-NEB-TNL Doc. 564 Filed 06/10/24 Page 14 of 14




                                CONCLUSION

      For the foregoing reasons, we ask this Court to release Mr. Shariff,

subject to reasonable conditions. The record contains clear and convincing

evidence that release is appropriate, and conditions short of incarceration will

address any remaining flight and safety concerns. In such cases, § 3143

supports his release.



                                     Respectfully submitted,



DATED: June 10, 2024                 GOETZ & ECKLAND P.A.


                                      s/ Andrew H. Mohring
                               By: _______________________________
                                  FREDERICK J. GOETZ
                                  Attorney Registration No. 185425
                                  ANDREW H. MOHRING
                                  Attorney Registration No. 190731
                                  Banks Building
                                  615 1st Avenue NE, Suite 425
                                  Minneapolis, MN 55413
                                  (612) 874-1552

                                   ATTORNEYS FOR DEFENDANT
                                   MUKHTAR SHARIFF




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