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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
CRIM. NO. 22-CR-124-1(NEB/TNL)
United States of America,
Plaintiff, DEFENDANT ABDIAZIZ SHAFII
v. FARAH’S MOTION FOR
RECONSIDERATION OF DETENTION
Abdiaziz Shafii Farah (1), PURSUANT TO 18 U.S.C. 3142(f)(2)(B)
AND DEMAND FOR SPEEDY TRIAL
Defendant.
INTRODUCTION AND SUMMARY OF ARGUMENT
About four-and-a-half months ago, Mr. Farah was charged with one count of
making a false statement in a passport application. Mr. Farah self-surrendered after being
told an arrest warrant was issued. This Court—both the Honorable Judge David T.
Schultz and, on defendant’s appeal, the Honorable Judge Nancy E. Brasel—ordered Mr.
Farah detained pending trial on that count. That case appeared to be heading to trial
quickly. That was a one-defendant, one-count indictment, and discovery was minimal (a
few hundred pages of material). Now, and after nearly five months in jail, and with a new
superseding indictment, the detention analysis has changed markedly. Mr. Farah
respectfully submits the Bail Reform Act’s statutory requirements and the United States
Constitution both require this Court to Order him released pending trial.
The facts surrounding the unsealing of these indictments fundamentally change the
detention equation. The government has yet to produce any discovery—and doesn’t know
when it will—but acknowledged discovery will be “millions of pages” and the demands
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of the Speedy Trial Act will not be practical for it to meet (ECF No. 11). The Court
recently designated the case as complex, and ordered the parties to meet and confer about
a case management schedule by November. (ECF No. 125). We are very far from trial in
this case despite Mr. Farah’s hopes to have that trial as quickly as possible. Mr. Farah
faces the prospect of languishing in a county jail for years as an American Citizen who is
presumed innocent, in a case alleging nonviolent fraud where detention is not presumed,
where he has no meaningful criminal history, no history of violence, no history of non-
appearance for Court, and where he an objective assessment found he has a 1% chance of
failure to appear (See previously-flied-objection, ECF No. 17 at 4, 11). This is striking
because Mr. Farah self-surrendered when he found out an arrest warrant had been issued.
Mr. Farah respectfully submits that continued detention would not only be
inappropriate under the statutory terms of the Bail Reform Act but would also violate the
United States Constitution.
ARGUMENT
1) Legal Standard
The Bail Reform Act anticipates a district court’s reconsideration of detention
orders in two ways:
The hearing may be reopened, before or after a determination by the judicial
officer, at any time before trial if the judicial officer finds that information
exists that was not known to the movant at the time of the hearing and that
has a material bearing on the issue whether there are conditions of release
that will reasonably assure the appearance of such person as required […].
18 U.S.C. § 3142(f)(2); and
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The judicial officer may, by subsequent order, permit the temporary release
of the person, in the custody of a United States marshal or another
appropriate person, to the extent that the judicial officer determines such
release to be necessary for preparation of the person’s defense or for another
compelling reason.
18 U.S.C. § 3142(i)(4).
Regardless of statutes such as the Bail Reform Act, a defendant’s pretrial
detention must meet the demands of the Constitution—and, if it does not, the defendant
must be released. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch.) 137, 180 (1803) (“a
law repugnant to the constitution is void”); Here, release is not just required by these
statutory prongs; it is required under (1) the Fifth Amendment’s Due Process Clause; (2)
the Sixth Amendment’s Speedy Trial requirement; and (3) the Fifth Amendment’s Equal
Protection requirements.
2) Release is appropriate under § 3142(f)(2) because the Superseding Indictment
brings a “sea change” of previously unknown information.
The above statutes make it clear that a Court’s decision on detention may be
revisited when there is new information that has a material bearing on the detention
calculus. Here, there are multiple pieces of new information before the Court:
First, the trajectory of the original indictment is completely different than that of
the superseding indictment. Instead of a straightforward one-count prosecution, Mr.
Farah now faces a remarkably fact-intensive and lengthy prosecution.
Before the superseding indictment was filed, the one-count indictment against Mr.
Farah appeared to be progressing toward trial. Mr. Farah had been detained more than
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four months. The defense had been provided discovery, counsel had reviewed that
discovery, and the pretrial motions had been made, argued, and briefed.
Now, after Mr. Farah has been superseded in an 8-defendant, 43-count indictment,
the case is undoubtedly very far from trial. At this time, some of Mr. Farah’s co-
defendants have not even had an attorney enter an appearance in this case. Before trial is
to take place: each defendant must acquire representation by one or more lawyers, the
Court must issue scheduling orders, the government must produce the discovery, the
lawyers and defendants must have an opportunity to review the discovery and make
relevant pretrial motions, those motions must be heard and ruled upon by the Magistrate
Judge, the Magistrate Judge’s report and recommendation may be objected to, and, if so,
those objections must be heard by the Article III Judge, expert witnesses must be
retained, consulted, and have a chance to review the discovery, trial-related motions and
motions in limine must be heard, and the schedules of this Court, eight defendants, and
dozens of lawyers must be coordinated for what will likely be a very lengthy trial. Per the
Court’s recent Order—this process won’t begin until at least November, when the parties
have a meet-and-confer deadline by. (ECF No. 125).
The duration of the prosecution is especially worrisome here given this case
appears to be one of the more complex, fact-intensive cases in the history of the district.
On September 27, 2022, the government moved to designate the case against Mr. Farah
and his new co-defendants as complex. The government noted that discovery in this case
will be incredibly voluminous and will eventually include:
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more than 600 grand jury subpoenas, including subpoenas for financial statements,
hundreds of bank accounts and credit card merchant accounts;
hundreds of reports documenting interviews of hundreds of witnesses;
records surrounding physical search warrants for 32 businesses and residences in
which approximately 380 electronic devices were seized;
records from more than 45 email accounts—searched pursuant to warrant—in
which the government obtained more than a quarter-million emails.
The government acknowledged “In all, the government will be producing millions
of pages of discovery.”
The government has not yet produced any discovery, so the defense cannot say
how many millions of pages will eventually be produced or when that production will
take place. But all of these trial-related considerations are material factors new since the
Court issued its detention order.
Another new material fact is the status of the co-defendants. On September 20,
2022, the government unsealed indictments against a total of 47 defendants. In summary,
the government alleged the 47 people had roles “in a $250 million fraud scheme that
exploited a federal-funded child nutrition program during the COVID-19 pandemic.”
This was headlined by the allegations against Aimee Bock, “the founder and executive
director of Feeding Our Future […who allegedly] oversaw the $240 million fraud scheme
carried out by sites[…].” US DEPARTMENT OF JUSTICE, Press Release, Sep. 20, 2022
(available at https://www.justice.gov/opa/pr/us-attorney-announces-federal-charges-
against-47-defendants-250-million-feeding-our-future). Despite these allegations, Ms.
Bock—who appears to be Caucasian—was released pending trial (indeed, the Court did
not even impose location monitoring requirements). In total, it appears that of the 47
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charged defendants, only 2 have been detained. These are material new factors not known
to the Court when making its initial detention decision.
Also notable is that Mr. Farah has already spent time in detention. Over the last
four-plus months, 45 of these individuals were free, while Mr. Farah was sitting in jail
preparing for a trial that is now indefinitely continued. Given that defendants charged
together in a conspiracy are almost always tried together, this new indictment effectively
“resets” Mr. Farah’s progress. See, e.g., United States v. Frazier, 280 F.3d 835, 844 (8th
Cir. 2002) (“it will be the rare case, if ever, where a district court should sever the trial of
alleged coconspirators.”). The Court, of course, did not know this at the time it issued its
detention order.
3) Multiple Constitutional provisions mandate Mr. Farah be released.
Mr. Farah’s release is not just appropriate under the statutory framework of the
Bail Reform Act. It is mandated by multiple fundamental constitutional rights.
a. Continued detention violates Mr. Farah’s Fifth Amendment’s Due Process
liberty protections.
Combining the government’s two positions—one, that Mr. Farah should be in jail
until trial occurs, and two, that the case is so complex that a speedy-trial is just not
tenable—produces a simple logical result. That Mr. Farah, a presumptively innocent
American citizen,1 will be in jail for a very long time without a finding of guilt. This
violates the Fifth Amendment’s due process clause.
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See 18 U.S.C. § 3142(i) (“Nothing in this section [the Bail Reform Act] shall be construed as
modifying or limiting the presumption of innocence.”)
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Liberty is the norm in our society when someone has been accused of a crime.
“These long periods of pretrial detention are anathema to our basic notions of due
process.” United States v. Gallo, 653 F. Supp. 320, 343 (E.D.N.Y. 1986). Indeed
“a pretrial detainee has a right under the Due Process Clause to be free from punishment
before his guilt is adjudicated.” Tate v. Parks, 791 F.App’x. 387, 390 (4th Cir. 2019).
Pretrial detention, when it lasts sufficiently long, becomes an unconstitutional form of
punishment. United States v. Theron, 782 F.2d 1510, 1516 (10th Cir. 1986).
Federal Appeals Courts have found there is not a specific bright-line limit on how
long a person must be jailed before it is unconstitutional. See, e.g., United States v.
Taylor, 602 F.App’x. 713, 717 (10th Cir. 2015); United States v. Briggs, 697 F.3d 98,
101 (2d. Cir. 2012). Courts instead take a case-by-case review. The Eleventh Circuit has
acknowledged “at some point and under some circumstances, the duration of pretrial
detention becomes unconstitutional.” United States v. Quartermaine, 913 F.2d 910,
917 (11th Cir. 1990) (quotation omitted).
Again, Mr. Farah has already been in jail for more than four months which is a
significant amount of time. It is already longer than Congress contemplated in drafting
the Speedy Trial Act):
The Court begins by observing that "Congress expressed in the Speedy Trial
Act a preference that the trial of incarcerated defendants should begin within
ninety days after the start of detention." United States v. Gonzales
Claudio, 806 F.2d 334, 340 (2d Cir.1986) (citing 18 U.S.C. § 3164(b)).
Although Congress has excluded certain types of delay from this ninety-day
limit, see 18 U.S.C. § 3161(h) & 3164(b), this three-month period,
"representing the considered view of the Congress as to the normal limit on
pretrial detention, provides at least a point of reference in [the Court's]
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consideration of the constitutional limit on such detention." Gonzales
Claudio, 806 F.2d at 340-41.
United States v. Hofstetter, No. 3:15-CR-27-TAV-CCS, at *10-11 (E.D. Tenn. Sep. 14,
2017). Mr. Farah has already been jailed longer than that considered view thought
appropriate. Given that trial will be a long time from now, the Constitution will be
violated if the Court does not act.
b. Continued detention will violate Mr. Farah’s Sixth Amendment Speedy trial
rights.
Mr. Farah fully asserts his Speedy Trial rights under the Sixth Amendment to the
United States Constitution, which affirms “[i]n all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial[.]” U.S. CONST. AMEND. VI. This right is
separate, distinct, and greater than the statutory speedy trial analysis. The leading
Supreme Court case discussing this case is Barker v. Wingo, 407 U.S. 514 (1972). There,
the Court identified a four-factor inquiry to determine whether the Sixth Amendment was
violated:
(1) whether delay before trial was uncommonly long; (2) whether the
government or the criminal defendant is more to blame for the delay; (3)
whether, in due course, the defendant asserted his right to a speedy trial; and
(4) whether he suffered prejudice as a result of the delay.
Id. at 150 (as summarized in Doggett v. United States, 505 U.S. 647, 651 (1992)).
The defense submits that this four-factor inquiry strongly supports release. As to
factors one to three: the delay in this case is very likely to be uncommonly long, the
defendant has not contributed to the delay (the timing of the indictment, for example, is
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entirely the responsibility of the government; as is its inability to provide discovery) and
Mr. Farah is fully asserting his right to a speedy trial.
As to the fourth factor –“prejudice to the defendant [which] is the most important
factor[,]” Balderas v. State, Civ. No. 07-1311 (JNE/JSM) (D. Minn. Jan. 23, 2008), here
Barker speaks loudly. It identified three specific interests “which the speedy trial right
was designed to protect […] (i) to prevent oppressive pretrial incarceration; (ii) to
minimize anxiety and concern of the accused; and (iii) to limit the possibility that the
defense will be impaired.” Barker, 407 U.S. at 532.
Pretrial proceedings like these are exactly what the founders had in mind when
they drafted the Sixth Amendment. The reality of “oppressive pretrial incarceration” in a
local county jail looms large. Mr. Farah’s anxiety and concern are immense as he faces
this highly public prosecution with his wife and two young children waiting at home.
And while officials at Sherburne County Jail dutifully try to help jailed people have
reasonable access to their case materials, the Jail does not have the multimedia capacity
to manage—for just one of its many incarcerated people—electronic copies of 380
electronic devices, more than a quarter-million emails across 45+ email accounts, and
“millions” of pages of discovery.
Mr. Farah’s inability to meaningfully participate in formulating his defense is a
grave constitutional matter under the Sixth Amendment. Chief Judge Weinstein has
previously noted:
The quality of the detainee's legal defense is likely to diminish dramatically
as long as he or she is incarcerated. The interlude between arraignment and
trial is "perhaps the most critical period of the proceedings . . . when
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consultation, thoroughgoing investigation and preparation. . . . [are] vitally
important. . . ."
U.S. v. Gallo, 653 F. Supp. 320, 337 (E.D.N.Y. 1986) (quoting Powell v. Alabama, 287
U.S. 45, 57 (1932)). The Supreme Court has recently made clear that the Sixth
Amendment’s right to the assistance of counsel is a personal right which in “grant[ing] to
the accused personally the right to make his defense,” is clear that the defendant is the
one who leads his defense: the Amendment “speaks of the ‘assistance’ of counsel, and an
assistant, however expert, is still an assistant.” (McCoy v. Louisiana, 138 S.Ct. 1500,
1508 (2018) (quoting Faretta v. California, 422 U.S. 806 (1975)). The Sixth
Amendment’s Speedy Trial requirement thus requires release.
c. Continued detention violates Mr. Farah’s Fifth Amendment Rights to be
free from discrimination and to enjoy equal protection under the law.
Mr. Farah is a naturalized United States citizen who was born in Somalia in 1988,
was brought to a Kenyan refugee camp in about 1990, and immigrated to Minnesota in
2005. He has lived here since. But the prosecution explicitly used Mr. Farah’s national
origin as a weapon in support of its detention argument, arguing:
“[…] most of us have nowhere to go. You know, you can't just move or no
one wants to just move to some country they've never been to, where they
don't speak the language, where they don't know anyone, where they've never
been, to be a fugitive. That's not what the situation is here. Mr. Farah was
raised in Kenya. His father is in Kenya. […] He has a place to go, which is
unlike almost -- probably 99 or more percent of the defendants that appear
before Your Honor, he has somewhere to go. And it's a place where if he
went, we could not get him back. The odds of extraditing from Kenya are
miniscule. It's not -- it just doesn't happen. When we have people flee to that
part of the world, we don't get them back[…]”
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(Transcript of May 25, 2022 Detention Hearing before Magistrate Judge
Schultz; ECF No. 15, p.58:2-19).
Notably, the prosecution has the facts blatantly wrong—not only does the United
States have an extradition treaty with Kenya, court records show multiple extraditions
from Kenya to the United States (see, e.g., United States v. Abdalla, 317 F.Supp.3d 786,
789 (S.D.N.Y. 2018) (two brothers arrested in Kenya and extradited); United States v.
Henry, 821 F. Supp. 2d 249, 252 (D.D.C. 2011) (“Henry was arrested in Kenya on
September 20, 2002 and extradited to the United States[.]”)). Indeed—just last year—the
United States Attorney for the Southern District of New York issued a press release
discussing how a Kenyan national was arrested by Kenyan authorities and was being
extradited to the Southern District for trial. US ATTORNEYS OFFICE: SOUTHERN DISTRICT
OF NEW YORK, Press Release, Jan. 25, 2021 (available at https://www.justice.gov/usao-
sdny/pr/us-attorney-announces-extradition-kenyan-national-large-scale-trafficking-
rhinoceros). It is unclear what basis the prosecution had for the claims above.
The most fundamental right of a United States Citizen, whether naturalized or
native-born, is their right to liberty. Using the fact that a citizen was raised in another
country, in a “part of the world” where “[w]hen we have people flee[…]we don’t get
them back” as a reason to constrain his liberty violates that citizen’s equal protection
rights. Mr. Farah fully asserts those rights. It is not surprising that Mr. Farah still has
family members in Kenya. He immigrated from there before becoming a citizen. What is,
instead, surprising is the fact that the government has weaponized the fact that he was
born abroad in its detention argument.
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Furtherr, the lead defendant in the case (Ms. Bock), who—according to the
government “oversaw” the operation—and who does not appear to have foreign national
origin ties—is not detained (and not subject to location monitoring).
The Fifth Amendment equal protection rights (as summarized by a District Court
in Arkansas this August) are well established in the Eighth Circuit and across the United
States.
The Fifth Amendment does not contain an explicit equal protection clause,
like the one found in the Fourteenth Amendment. Nevertheless, it is “settled
that the concept of due process of law prohibits the federal government from
discriminating against any person on such irrelevant and invidious grounds
as race, color, religion, or national origin.” Johnson v. Alexander, 572 F.2d
1219, 1220 (8th Cir. 1978) (citing Washington v. Davis, 426 U.S.
229 (1976)). The Eighth Circuit refers to this as the “equal protection
component of the Fifth Amendment due process clause,” Reutter ex rel.
Reutter v. Barnhart, 372 F.3d 946, 952 (8th Cir. 2004)[.]
Hendley v. Weaver, 2:20-CV-00044-BSM-JTR, at *1 n.4 (E.D. Ark. Aug. 1, 2022).
These issues fall squarely into the national origin category: the Minnesota Human
Rights Act, for example, “defines ‘national origin’ as ‘the place of birth of an individual
or of any of the individual's lineal ancestors.’” Udoeyop v. Accessible Space, Inc., Civil
No. 08-4743 (JNE/JJK) (D. Minn. Oct. 21, 2008) (citing Minn. Stat. § 363A.03, subd.
25). It would be wrong and unlawful to use the fact that Mr. Farah is from Kenya and has
relatives in Kenya in an employment context, or to deny him other opportunities in the
law. It would likewise offend the Fifth Amendment to use it against him in detention
analysis.
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4) Release is appropriate under § 3142(i) because Mr. Farah, given the unique facts
of the case, cannot fully participate in his defense while detained.
Mr. Farah’s continued detention impairs his ability to defend himself. This
compels release under both the Sixth Amendment and under 18 U.S.C. § 3142(i). In order
to vindicate these rights, he must be afforded the opportunity to fully participate in his
own defense. The alternative, his attorneys reviewing millions of pages of documents
with him over Zoom, is just not realistic.
CONCLUSION
The Court is aware of Mr. Farah’s personal factors and this memorandum will not
rehash them in detail. But a quick overview of them shows that Mr. Farah’s motion for
release is not just supported by statutes and constitutional provisions—it is also fair.
Mr. Farah has lived in the United States for over fifteen years. He is a University
of Minnesota graduate and, until his incarceration, lived in Savage with his wife and two
young children. He has no real criminal history, no history of nonappearance, no history
of violence. He has been working with lawyers and private investigators to conduct a
parallel investigation and defend himself against these charges since January. In these
eight months he has not attempted to flee—instead, when he found out there was a
warrant out for his arrest he returned to Minneapolis and surrendered to the United States
Marshals despite knowing the government would seek to keep him in jail pending trial.
The pretrial risk assessment—“an objective, quantifiable instrument that provides a
consistent and valid method of predicting risk”—places him at the lowest risk category,
with a 1% chance of failure to appear.
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The proposition that Mr. Farah will act differently next time—abandoning his wife
and children to flee his home, even though the last free action he took was to surrender
himself to the United States Marshals—is not supported by the facts. In this case, which
is not a presumed detention case, release subject to conditions (such as location
monitoring) is required under the statutory analysis and required by the United States
Constitution.
Respectfully submitted,
Dated: October 3, 2022 /s/ Andrew S. Birrell
Andrew S. Birrell (Attorney No. 133760)
Ian S. Birrell (Attorney No. 0396379)
Birrell Law Firm PLLC
333 South 7th Street, Suite 3020
Minneapolis, MN 55402
Phone: (612) 238-1939
andy@birrell.law | ian@birrell.law
Attorneys for Defendant
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