Minnesota Department of Education’s Memorandum of Law in Opposition — No. 22-CR-00124(7) (NEB/TNL) (Dkt. 365, D. Minn.)

Summary

The Minnesota Department of Education asks the District of Minnesota to quash a subpoena that defendant Mukhtar Shariff served on Assistant Commissioner Daron Korte on February 6, 2024, and to deny Shariff's motion to hold Korte in criminal contempt. The memorandum says the court already found in December 2023 that MDE did not take part in a joint investigation and denied discovery of materials solely in MDE's possession, and that MDE had produced over 270,000 pages to the government, which passed them to the defense. The subpoena sought fourteen categories of documents from January 1, 2020 through January 31, 2022, including Federal Child Nutrition Program waivers, the definition of a meal and the Bloomington, Medford and Waseca sites. MDE argues it lacks the specificity, relevance and admissibility required under United States v. Nixon.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

Text recognized from a scanned document; may contain errors.

CASE 0:22-cr-00124-NEB-TNL Doc. 365 Filed 03/18/24 Page 1 of 13

UNITED STATES DISTRICT COURT MAR 78 2uc4
CLERK, U.S. DIS RICT COURT

DISTRICT OF MINNESOTA ST. PAUL, MINNESOTA

United States of America, Case No. 22-CR-00124(7) (NEB/TNL)
Plaintiff, MINNESOTA DEPARTMENT OF
EDUCATION’S MEMORANDUM
VS. OF LAW IN OPPOSITION TO
DEFENDANT’S MOTION TO
Mukhtar Mohamed Shariff, et al, SHOW CAUSE AND IN SUPPORT
OF ITS MOTION TO QUASH

Defendant.

INTRODUCTION

The subpoena at issue in Defendant Mukhtar Shariff’s (“Defendant”) motion for an
order to show cause sought the same documents that were the subject of his motion for
discovery. This Court ruled, six weeks before the subpoena was drafted, that the Minnesota
Department of Education (“MDE”) did not conduct or participate in a “joint investigation”
of the charges against Defendant. This Court also denied Defendant’s request for discovery
“as to materials requested that are solely within the possession” of MDE in December of
last year.

Evidently dissatisfied with these rulings, Defendant has attempted an end around by
unilaterally drafting and serving a subpoena duces tecum for the same documents on MDE,
notwithstanding decades of precedent holding that Rule 17(c) subpoenas are not an
alternative vehicle for discovery. Defendant now asks this Court to hold MDE’s Assistant

Commissioner, Daron Korte (“Korte”) in criminal contempt for not providing the same

SCANNED
I MAR 1 8 2024 Ck

U.S. DISTRICT COURT ST. PAUL
CASE 0:22-cr-00124-NEB-TNL Doc. 365 Filed 03/18/24 Page 2 of 13

documents that this Court already ruled he could not obtain directly from MDE. The fact
that Korte did not assist Defendant in bypassing this Court’s discovery orders is not a basis
to hold him in contempt.

Moreover, Defendant bore the burden to establish that the documents sought by the
subpoena were relevant and admissible, and that the subpoena identified documents with
specificity. Neither the subpoena nor Defendant’s motion for an order to show cause reflect
any attempt to meet this standard. MDE thus respectfully requests that the Court both deny
Defendant’s motion for an order to show cause and quash the unenforceable subpoena.

STATEMENT OF RELEVANT FACTS!

I. THIS COURT DENIED DEFENDANT’S MOTION FOR DISCOVERY FROM MDE LAST
YEAR.

In May 2023, Defendant moved for discovery from a wide range of state and federal
agencies, including MDE, as part of a joint motion for discovery. Doc. 229. The discovery

Defendant sought from MDE included:

e Investigative reports;

e Witness interviews and communications;

e Case files “that relate to any of the defendants named in this Superseding
Indictment;”

e Documents related to changes to the U.S. Department of Agriculture and its Food
and Nutrition Service to the Federal Child Nutrition Program related to the COVID-
19 pandemic;

e Documents related to any waiver of any standard required for participation in the
Federal Child Nutrition Program;

MDE does not expressly or impliedly make any admissions, or expressly or
impliedly waive any legal defenses or arguments, by reciting on the facts relevant
to this motion. MDE reserves the right to introduce additional facts, or make
additional arguments, as part of its Motion to Quash or in other relevant
proceeding(s).
CASE 0:22-cr-00124-NEB-TNL Doc. 365 Filed 03/18/24 Page 3 of 13

e Documents related to the definition of a “meal” under the Federal Child Nutrition
Program;

e Documents and materials concerning the Bloomington, Medford, and Waseca
“sites;” and

e Documents “and materials concerning the Muktar Shariff (sic) or Afrique
Hospitality Group LLC.”

Id. at 1-4. In its response to this motion, the Government explained that, during its
investigation, it subpoenaed MDE for records “related to the fraud scheme.” Doc. 278 at
13. The Government also affirmatively stated that it produced the records it subpoenaed
from MDE in discovery. Jd. Defendant subsequently acknowledged that MDE already
produced over 270,000 pages of documents to the Government, which Defendant received
in discovery. Doc. 302 at 4.

In mid-December 2023, Magistrate Judge Leung issued a Discovery Order partially
denying Defendant’s discovery motion. Doc. 317. In relevant part, the Discovery Order
rejected Defendant’s proposition that MDE had engaged in a joint investigation with
federal law enforcement. See id. at 31 (taking particular note of the fact that MDE and
other state agencies only produced documents in response to grand jury subpoenas, and did
not receive information about the investigation from the Government.) The Discovery
Order repeatedly emphasized that the documents the Government obtained from MDE
were already previously provided to Defendant in discovery. Jd. at 20 & 31. “As there
was no joint investigation,” the Discovery Order denied Defendant’s motion “as to
materials requested that are solely within the possession of the other federal and state
agencies.” Jd. at 33. Thus, as of December 19, 2023, Defendant was on notice that he was

not entitled to discover any documents solely in the possession of MDE. Jd. And, as of at
CASE 0:22-cr-00124-NEB-TNL Doc. 365 Filed 03/18/24 Page 4 of 13

least December 19, 2023, Defendant was also on notice that any documents MDE had
provided to the Government had already been produced in discovery.

Defendant objected to the conclusion that there was no joint investigation, and that
the Government’s disclosure obligations could not be extended to MDE. Doc. 328. This
Court, however, noted that Defendant did not identify “any factual error” with Magistrate
Judge Leung’s analysis of whether a joint investigation occurred. Doc. 343 at 6. Rather,
the Court noted, Defendant only identified statements indicating that MDE had “handed
documents over to prosecution.” Jd. at 7. Accordingly, the Court denied Defendant’s
appeal on February 22, 2024. See id.

II. TWO WEEKS AFTER FILING ITS OBJECTIONS TO THE DISCOVERY ORDER,

DEFENDANT SERVED MDE WITH A PURPORTED “SUBPOENA” SEEKING THE
EXACT SAME DISCOVERY THE DISCOVERY ORDER DENIED.

On February 6, 2024, Defendant served form subpoena on Korte. Doc. 350 at 15.
The purported subpoena was issued with a caption of “United States of America v.

.” Id. at 14. The document included an undated signature of the

Clerk of this Court, and did not bear the Court’s seal. /d. The form Defendant served
demanded production of documents to this Court on February 29, 2024, at 10:00 AM
before Magistrate Judge Leung. Jd.

The subpoena form was accompanied by a letter from Defendant’s counsel seeking
fourteen categories of documents. Doc. 350 at 11-13. These requests all spanned over
two years, from January 1, 2020, through January 31, 2022. Jd. The accompanying letter
in no way acknowledged or addressed the fact that this Court had already determined that
Defendant was not entitled to obtain discovery directly from MDE, or any other state

4
CASE 0:22-cr-00124-NEB-TNL Doc. 365 Filed 03/18/24 Page 5 of 13

agency. See id. The letter demanded production of the same documents that Defendant’s
discovery motion had unsuccessfully sought, including documents related to waivers, the
definition of the word meal, various sites, and investigative files and communications. Id.
MDE did not re-produce the same documents it had already provided the Government, and
that the Government already produced to Defendant in discovery, in response to

Defendant’s subpoena.

STANDARD OF REVIEW

“[S]ubpoenas duces tecum are not meant to serve as tools of discovery in criminal
cases, but are instead means by which to expedite the trial by providing a time and place
prior to trial for the inspection of subpoenaed materials.” United States v. Bueno, 443 F.3d
1017, 1026 (8th Cir. 2006). This Court has broad discretion to quash a subpoena “if
compliance would be unreasonable or oppressive.” Fed. R. Crim. P. 17(c)(2). Subpoenas
that are not enforceable can and should be quashed. Bueno, 443 F.3d at 1026.

To be enforceable, the party promulgating the subpoena duces tecum must make
four showings:

(1) that the documents are evidentiary and relevant; (2) that they are not

otherwise procurable reasonably in advance of trial by exercise of due

diligence; (3) that the party cannot properly prepare for trial without such
production and inspection in advance of trial and that the failure to obtain

such inspection may tend unreasonably to delay the trial; and (4) that the

application is made in good faith and is not intended as a general “fishing
expedition.”

United States v. Nixon, 418 U.S. 683, 699-700. Phrased another way, the party seeking to
enforce a subpoena duces tecum bears the burden to show that the subpoenaed documents
are (1) relevant, (2) admissible, and (3) have been requested with adequate specificity. Id.

5
CASE 0:22-cr-00124-NEB-TNL Doc. 365 Filed 03/18/24 Page 6 of 13

at 700; United States v. Hardy, 224 F.3d 752, 755 (8th Cir. 2000).? A party’s “mere hope
that it will turn up favorable evidence” does not justify a subpoena duces tecum. United
States v. Stevenson. 727 F.3d 826, 831 (8th Cir. 2013). Likewise, a subpoena duces tecum
that does not “even identify by name the documents desired” is subject to quashing based
on insufficient specificity. United States v. Hang, 75 F.3d 1275, 1283 (8th Cir. 1996).
ARGUMENT

Defendant has not met his burden to show that the documents “are evidentiary and
relevant,” and that its subpoena “is made in good faith and is not intended as a general
‘fishing expedition.’” Nixon, at 699-700. In its previous orders, this Court already
concluded that Defendant has no right to obtain discovery from MDE, meaning the
documents sought are not “evidentiary.” Moreover, Defendant’s requests are extremely
broad, seeking all documents relating to various topics for a two-year period, rather than
specifically identifying documents that meet the standard established in Nixon.
Furthermore, Defendant’s subpoena seeks to have MDE re-provide some or all of the
roughly 270,000 pages of documents that the Government already obtained from MDE and
already produced in discovery, which cannot reasonably be called anything other than a

fishing expedition. Even if Defendant was to argue that the subpoena sought documents

Hardy and Nixon refer to these criteria as the burden of the “moving party.” Hardy,
224 F.3d at 755; Nixon, 418 U.S. at 699. The text of these decisions imply that,
typically, a party must bring a motion or make an application for the issuance of a
subpoena duces tecum. See also, e.g., D. Minn. LR 49.1(c)(1)(v) & (vi) (requiring
that applications and orders disposing of applications for subpoenas duces tecum on
behalf of a defendant, and subpoenas duces tecum under Rule 17(c), be filed under
seal). It is not clear whether Defendant did so here, or unilaterally bypassed this
step.
CASE 0:22-cr-00124-NEB-TNL Doc. 365 Filed 03/18/24 Page 7 of 13

which have not been produced in discovery, an argument which he has not to date made,
enforcement of the subpoena would still be overly burdensome, and unreasonable in light
of this Court’s discovery orders. Accordingly, the subpoena must be quashed, and as a
result Defendant’s request for an order to show cause is moot.

I. THE SUBPOENA MUST BE QUASHED BECAUSE IT DOES NOT SEEK DOCUMENTS
WITH SPECIFICITY.

Defendant’s subpoena is insufficiently specific to meet the Nixon standard.
Specificity, in this context, means “more than the title of a document and conjecture as to
its contents.” Stevenson, 727 F.3d at 831; see also Hang, 75 F.3d at 1283 (affirming
decision to quash subpoena where Defendant’s subpoenas “did not even identify by name
the documents desired”). Merely seeking records and documents “relating to” an
individual or entity is insufficiently specific to satisfy this requirement. See, e.g., United
States v. Bradford, 806 F.3d 1151, 1155 (8th Cir. 2015) (affirming denial of request for
subpoena duces tecum for all victim’s medical records in year preceding shooting death);
United States v. Wilkens, Criminal File No. 12-74 (MJD/LIB), 2012 WL 2885364, at *4
(D. Minn. Jul. 13, 2012) (refusing to order subpoena duces tecum for all school records for
six students). Similarly, merely requesting documents over a fixed period of time, with no
indication of their expected contents, is insufficient to meet Nixon’s specificity
requirement. United States v. Cole, Criminal No. 09-193 (MJD/AJB), 2010 WL 1526488,
at *1 (D. Minn. Apr. 15, 2010); United States v. Ruzicka, Criminal No. 16-246 (JRT/FLN),

2018 WL 747411, at *1-3 (D. Minn. Feb. 7, 2018) (distinguishing between prior request
CASE 0:22-cr-00124-NEB-TNL Doc. 365 Filed 03/18/24 Page 8 of 13

for all business valuations reports from 2004-2017 and renewed request for only those

specific reports from 2006 and 2013 that were likely to contain relevant information).

Here, Defendant does not even approach the standard that Stevenson deemed
inadequate. Defendant does not identify the title of any document; rather, his subpoena
refers only to broad categories of documents, defined by what the documents “relate to in
any way,” during a 25-month period. Similar requests resulted in quashed subpoenas in
Hang, Wilkens, Cole, and initially in Ruzicka. This case should be no different.

Defendant also does not offer even conjecture as to the contents of the documents
sought. Neither Defendant’s subpoena, nor his motion, describe in any way what it means
to “relate to” the categories identified, what documents it believes are related, how it
believes those documents might be related, or any other information about what could
reasonably be expected to be found in the documents. This is a fishing expedition in every
sense but the literal, and the Court should prevent it from going forward. The Court also
certainly should not hold Korte, or anyone else at MDE, in criminal contempt for declining
to entertain Defendant’s treasure hunt.

II. THE SUBPOENA MUST BE QUASHED BECAUSE DEFENDANT HAS NOT MET HIS
BURDEN TO SHOW THAT THE DOCUMENTS SOUGHT ARE RELEVANT OR
ADMISSIBLE.

Defendant also bears, and has not met, the burden to prove that the documents
subpoenaed are relevant and admissible. Nixon, 418 U.S. at 700. Rule 17(c) is not a tool
for “ferreting out information which may be either relevant or admissible.” United States
v. Najarian, 164 F.R.D. 484, 488 (D. Minn. 1995). Accordingly, courts do not presume

relevance or admissibility, and err on the side of limiting, rather than expanding, the scope

8
CASE 0:22-cr-00124-NEB-TNL Doc. 365 Filed 03/18/24 Page 9 of 13

of a subpoena when these showings are not persuasive. /d. at 487 (concluding that request

999

was “more in the nature of a ‘treasure hunt’” because the relevance and admissibility of the
documents sought was “‘inescapably uncertain”). See also United States v. Arditti, 955 F.2d
331, 346 (Sth Cir. 1992) (noting that this standard can be met by “giving reasons that
permit[] a rational inference of relevance, as well as by making a sufficient preliminary
showing of admissibility.”), cited with approval in Hardy, 224 F.3d at 755.

The words “relevant” and “admissible” appear nowhere in Defendant’s
submissions. See generally Doc. 349-51. Moreover, because Defendant has not identified
the documents he is seeking with specificity, it is impossible to address their
admissibility—as in Najarian, the admissibility of the subpoenaed documents is
‘inescapably uncertain.” Even in his motion for an order to show cause, Defendant does
not contend that the documents are relevant or admissible (nor could he given the Court’s
prior rulings in this case, see infra at III), only that they were responsive to the subpoena.
See Doc. 349. Defendant thus has failed to carry the burden established by the Supreme
Court in Nixon, and his subpoena must be quashed.

II. ENFORCEMENT OF THE SUBPOENA WOULD BE UNREASONABLE IN LIGHT OF THE

COURT’S DISCOVERY ORDERS, AND OVERLY BURDENSOME GIVEN THE

VOLUME OF DOCUMENTS ALREADY PRODUCED.

A. A Subpoena Duces Tecum is not a Tool to Avoid Unfavorable Discovery
Determinations.

As Magistrate Judge Leung acknowledged in his Discovery Order, criminal
defendants do not have a general right to discovery. Doc. 317 at 21 (quoting United States

v. Johnson, 228 F.3d 920, 924 (8th Cir. 2000)). “It was not intended by Rule 16 to give a
CASE 0:22-cr-00124-NEB-TNL Doc. 365 Filed 03/18/24 Page 10 of 13

limited right of discovery, and then by Rule 17 to give a right of discovery in the broadest
terms.” Bowman Dairy Co. v. United States, 341 U.S. 214, 220 (1951). In other words, a
subpoena duces — is not a tool for discovery, but rather to have discoverable
documents delivered in advance of trial. Jd.

In this case, MDE’s documents have already been delivered: first, by MDE to the
Government in the course of the federal criminal investigation, and, second, by the
Government in the course of discovery. Additionally, this Court has already ruled that
Defendant is not entitled to further discovery under Rule 16. Docs. 317 & 343. Enforcing
Defendant’s subpoena would allow Defendant to seek discovery under Rule 17 that this
Court has already denied under Rule 16. Any such result is precluded by Bowman Dairy
Company, and requiring MDE to participate in circumventing the Court’s rulings would be
unreasonable. The subpoena must therefore be quashed.

B. Forcing MDE to Hunt for Potentially Responsive Documents that were

not Already Produced in Discovery, When There is no Evidence that
Any Such Documents Exist, Would be Oppressive.

Even if the Government had not already produced MDE’s documents responsive to
the subpoena in discovery, and even if the Court had not already prohibited Defendant from
obtaining further discovery directly from MDE, the subpoena would still be overly
burdensome. This Court may properly quash a subpoena when “the burden of producing
the records sought greatly outweighed any relevance they might have to the case.” United
States v. Kalter, 5 F.3d 1166, 1169 (8th Cir. 1993). “Moreover, the trial court can refuse

to enforce the subpoena before trial if the moving party fails to demonstrate a need for the

material at that point in the proceedings.” United States v. McGrady, 502 F.2d 13, 18 (8th

10
CASE 0:22-cr-00124-NEB-TNL Doc. 365 Filed 03/18/24 Page 11 of 13

Cir. 1974).

Again, there is no way to ascertain the relevance of the subpoenaed documents
because the subpoena is insufficiently specific, and Defendant has offered no other
evidence of relevance. By contrast, the burden to MDE from complying with the subpoena
would be significant. As written, the subpoena gave MDE just over three weeks from the
date of service to gather documents spanning two years that were “related in any way” to
fourteen topic areas. MDE would then have had to cross-reference the 270,000 pages of
documents it already produced to the Government (which, again, are already in
Defendant’s possession through discovery), and determine whether any responsive
documents remained to be produced. Defendant offered no evidence that any additional
documents, beyond those that were already produced during the criminal investigation,
exist.> Moreover, because Defendant has not identified any specific documents that are in
MDE’s possession but were not part of discovery, he cannot demonstrate a need for those
documents at this point in the proceedings. Therefore, this Court can and should quash
Defendant’s subpoena.

IV. THE SUBPOENA’S DEFECTS FORECLOSE ANY FINDING OF CONTEMPT AGAINST
MDE, AND NO ORDER TO SHOW CAUSE SHOULD BE ISSUED.

Given the substantial defects in Defendant’s subpoena, criminal contempt is

inappropriate. “One should not be held in contempt under a subpoena that is part good and

3 Furthermore, if such documents existed, MDE would be required to provide them
to the Government, which would in turn be required to produce them in discovery.
See Doc. 302 at 18 n.9; id. at 32. Again, however, this is purely hypothetical, and
hypothetical hopes that documents might exist do not warrant a subpoena duces
tecum. Stevenson. 727 F.3d at 831.

11
CASE 0:22-cr-00124-NEB-TNL Doc. 365 Filed 03/18/24 Page 12 of 13

part bad.” Bowman Dairy Co. v. United States, 341 U.S. at 221. “The burden is on the
court to see that the subpoena is good in its entirety and it is not upon the person who faces
punishment to cull the good from the bad.” Jd.

Here, it does not appear that Defendant even gave the Court the opportunity to weigh
in on its role to “see that the subpoena [was] good in its entirety;” rather, Defendant
unilaterally drafted a subpoena and attempted to avoid the Court’s involvement wherever
possible. As a result, Defendant’s subpoena is more than “part bad” — it is an unenforceable
request for a broad, ill-defined laundry list of documents that were already produced to
Defendant. Neither Korte, nor any other employee or agent of MDE, should be punished
with criminal contempt for not participating in Defendant’s fishing expedition. In addition
to quashing the subpoena, therefore, the Court should deny Defendant’s motion for an order

to show cause.

CONCLUSION

Defendant’s subpoena does not meet Nixon’s requirements regarding relevance,
admissibility, and specificity, and this Court has already foreclosed the idea of discovery
directly from MDE. Defendant cannot now expect the Court to initiate criminal contempt
proceedings against Korte based on his legally deficient subpoena. For the foregoing
reasons, MDE respectfully requests that the Court quash Defendant’s facially invalid
subpoena, and deny Defendant’s motion for an order to show cause.

[SIGNATURE BLOCK ON FOLLOWING PAGE]

12
CASE 0:22-cr-00124-NEB-TNL Doc. 365 Filed 03/18/24 Page 13 of 13

Dated: March 18, 2024

Respectfully submitted,
KEITH ELLISON

Attorney General
State of Minnesota

s/ Frank Langan

FRANK LANGAN
Assistant Attorney General
Atty. Reg. No. 0399106

JOE WEINER
Assistant Attorney General
Atty. Reg. No. 0389181

445 Minnesota Street, Suite 1400
St. Paul, Minnesota 55101-2131
(651) 300-7602 (Voice)

(651) 297-4139 (Fax)

joseph.weiner@ag.state.mn.us

ATTORNEYS FOR MINNESOTA
DEPARTMENT OF EDUCATION

File and source

File: 365.pdf
Size: 262,474 bytes
SHA-256: e106663bad1e552f03529e7c194f6fe3dc29ea38f3322eff826305b9972043ac
Our copy: 365.pdf
Original: No public link identified.