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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
United States of America, Case No. 22-cr-124 (NEB/TNL)
Plaintiff,
v. ORDER
Abdiaziz Shafii Farah,
Defendant.
Chelsea A. Walcker, Craig R. Baune, Harry Jacobs, Joseph Scott Teirab, Joseph H.
Thompson, and Matthew S. Ebert, Assistant United States Attorneys, 300 South Fourth
Street, Suite 600, Minneapolis, MN 55415 (for the Government); and
Andrew S. Birrell and Ian S. Birrell, Birrell Law Firm, PLLC, 333 South Seventh
Street, Suite 3020, Minneapolis, MN 55402 (for Defendant).
This matter is before the Court, United States Magistrate Judge Tony N. Leung, on
the following pretrial motions:
1. The Government’s Motion for Discovery Pursuant to Federal Rules of
Criminal Procedure 16(b), 12.1, 12.2, 12.3, and 26.2, ECF No. 30;
2. Defendant’s Motion to Disclose Informants and Make Informants Available
for Interview, ECF No. 34;
3. Defendant’s Motion for Discovery and Inspection, ECF No. 35;
4. Defendant’s Motion for Disclosure of Rule 404(b) Evidence, ECF No. 36;
5. Defendant’s Motion for Disclosure of Rule 16(a)(1)(G) Materials, ECF No. 37;
6. Defendant’s Motion for Disclosure Under Brady and Giglio, ECF No. 38; and
7. Defendant’s Motion to Retain Rough Notes, ECF No. 39.
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These motions and this Order relate to the initial Indictment, charging Defendant with
one count of making a false statement in a passport application in violation of 18 U.S.C.
§ 1542. Cf. ECF Nos. 57, 139 at 1-2 & n.2. 1
A hearing was held on August 12, 2022. ECF No. 51. Matthew S. Ebert appeared
on behalf of the United States of America (the “Government”). Ian S. Birrell appeared
on behalf of Defendant. Based upon the record, memoranda, and oral arguments of
counsel, IT IS HEREBY ORDERED as follows:
1. The Government’s Motion for Discovery Pursuant to Federal Rules of
Criminal Procedure 16(b), 12.1, 12.2, 12.3, and 26.2, ECF No. 30, is GRANTED. This
motion seeks discovery available under Federal Rules of Criminal Procedure 12.1, 12.2,
12.3, 16(b), and 26.2, as well as the establishment of deadlines for the disclosure of
expert witnesses. Defendant has no objection to the Government’s discovery requests
“[t]o the extent the [G]overnment seeks disclosure of items required by the Federal Rules
of Criminal Procedure.” ECF No. 43.
The parties, see infra ¶ 5, seek the establishment of deadlines for the disclosure of
any testimony the other intends to use under Rules 702, 703, or 705 of the Federal Rules
of Evidence. See Fed. R. Crim. P. 16(a)(1)(G), (b)(1)(C). The Government proposed
that the parties make their principal expert disclosures no later than 30 days before trial
and any rebuttal expert disclosures no later than 10 days prior to trial. ECF No. 30 at 2;
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A Superseding Indictment was filed on September 13, 2022. See generally ECF No. 57. “An original indictment
remains pending prior to trial, even after the filing of a superseding indictment, unless the original indictment is
formally dismissed.” United States v. Yielding, 657 F.3d 688, 703 (8th Cir. 2011) (citing United States v. Walker,
363 F.3d 711, 715 (8th Cir. 2004); Fed. R. Crim. P. 48); see also Walker, 363 F.3d at 715 (“superseding indictment
and the original indictment can co-exist”).
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see also Gov’t’s Consol. Resp. at 13, ECF No. 44. At the hearing, Defendant had no
objection to the Government’s proposed timeline. See also ECF No. 37 at 1.
Consistent with the parties’ agreement, no later than 30 days prior to trial, the
parties shall make their principal expert disclosures, and, no later than 10 days prior to
trial, the parties shall make any rebuttal expert disclosures. See Fed. R. Crim. P.
16(a)(1)(G), (b)(1)(C).
2. Defendant’s Motion to Disclose Informants and Make Informants Available
for Interview, ECF No. 34, is DENIED. Defendant moves for an order requiring the
Government to disclose the identity of any informants utilized in the investigation of this
matter, to make such informants available for interview, and to provide certain
information regarding such informants. The Government states that it is “not aware of
any evidence in this pending case that was obtained from informants.” Gov’t’s Consol.
Resp. at 10.
When asked at the hearing if this motion was moot based on the Government’s
response, Defendant stated that the Government should be ordered to inquire as to
whether any informants were used and, if the Government subsequently learned that
informants were used, it would have an obligation to inform Defendant. The
Government responded that it believed this is what had been articulated, repeated that it
was not aware of any informants related to this charge, and agreed it would have an
obligation to inform Defendant should it learn of additional information. In light of the
Government’s representation, Defendant did not have anything further.
“In Roviaro v. United States, the Supreme Court recognized the government’s
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privilege to withhold the identity of a confidential informant.” United States v. Alcantar,
271 F.3d 731, 739 (8th Cir. 2001) (citing 353 U.S. 53, 59 (1957)). In determining
whether disclosure of an informant’s identity is required, “the threshold issue is whether
the informant is a material witness.” Carpenter v. Lock, 257 F.3d 775, 779 (8th Cir.
2001).
“Where the witness is an active participant or witness to the offense charged,
disclosure will almost always be material to the accused’s defense.” Devose v. Norris, 53
F.3d 201, 206 (8th Cir. 1995) (emphasis added) (footnote omitted). “In cases involving
‘tipsters’ who merely convey information to the government but neither witness nor
participate in the offense, disclosure is generally not material to the outcome of the case
and is therefore not required.” United States v. Harrington, 951 F.2d 876, 878 (8th Cir.
1991) (citing United States v. Bourbon, 819 F.2d 856, 860 (8th Cir. 1987)); accord
United States v. Lapsley, 334 F.3d 762, 764 (8th Cir. 2003) (“Consequently, disclosure is
typically not required when the informant merely conveys information to the government
but neither witnesses nor participates in the offense.” (quotations omitted)); Alcantar, 271
F.3d at 739 (government had no obligation to reveal informant’s identity where informant
did not participate in crime charged or testify at trial).
Defendant bears the burden of showing beyond mere speculation that the
disclosure of an informant would be material and helpful to his case. United States v.
Roberson, 439 F.3d 934, 940 (8th Cir. 2006); Alcantar, 271 F.3d at 739. If a trial court
orders disclosure absent a showing of materiality, it abuses its discretion.” United States
v. Bias, No. 17-cr-318(06) (SRN/FLN), 2018 WL 3336770, at *2 (D. Minn. July 6,
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2018).
Based on the record before the Court, there is no indication that an informant
participated in or witnessed the offense charged. Moreover, the Government has
confirmed that it will disclose the identity of any informant should it learn that one was
utilized in connection with the pending charge. Therefore, Defendant’s motion is denied.
3. Defendant’s Motion for Discovery and Inspection, ECF No. 35, is
GRANTED IN PART and DENIED IN PART. Defendant seeks a laundry list of
discovery. See generally ECF No. 35 ¶¶ 1-15. For example, some of the materials
requested are subject to disclosure under Rule 16(a)(1)(A) through (F) of the Federal
Rules of Criminal Procedure. See, e.g., ECF No. 35 ¶¶ 1, 5, 9, 10. One of the requests,
seeking exculpatory material, is duplicative of another motion filed by Defendant. See,
e.g., ECF No. 35 ¶ 15 (“Any exculpatory material (see also separate motion) at least
thirty days prior to trial, with a continuing duty to search for and disclose such material
up to, during, and after trial.”). Others are likely to be subject to the trial preferences of
the presiding district judge. See, e.g., ECF No. 35 ¶¶ 3, 4 (exhibit and witness lists). In
support of his various requests, Defendant cites generically “the United States
Constitution, Rule 16 of the Federal Rules of Criminal Procedure, and whatever other
points and authorities this Court finds appropriate.” ECF No. 35 at 1.
The Government acknowledges its obligations under Rule 16 and states that it has
and will continue to comply with such obligations. The Government further states that
“all physical evidence within [its] possession . . . remains available for inspection by the
defense at a mutually agreeable time and location.” Gov’t’s Consol. Resp. at 11. The
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Government “does not object to [Defendant’s] motion to the extent it seeks material
covered by Federal Rule of Criminal Procedure 16,” but does “object[] to any discovery
order which exceeds the requirements of Rule 16.” Gov’t’s Consol. Resp. at 11.
“Criminal defendants do not have a general constitutional right to discovery.”
United States v. Johnson, 228 F.3d 920, 924 (8th Cir. 2000). Defendant’s motion is
granted in part to the extent his discovery requests seek responsive information subject to
disclosure under Rule 16(a)(1)(A) though (F) that remains in the Government’s control
and has not yet been produced. Defendant’s motion is further granted in part to the
extent his discovery requests seek discovery and disclosures ordered produced elsewhere
in this Order or that the Government is otherwise obligated to disclose by law.
Defendant’s discovery requests are denied in all other respects.
Defendant further requests that, in the event the Government subsequently
discovers additional materials previously ordered to be produced, that such additional
material be disclosed “immediately upon discovery.” ECF No. 35 at 3. While the Court
has no reason to doubt that the Government will honor its continuing disclosure
obligations under Rule 16(c), any responsive information or material subject to disclosure
that subsequently comes into the Government’s possession, knowledge, or control shall
be produced in a timely fashion.
4. Defendant’s Motion for Disclosure of Rule 404(b) Evidence, ECF No. 36,
is GRANTED IN PART and DENIED IN PART. Defendant requests disclosure “of
any evidence [the Government] intends to introduce at trial of other crimes, wrongs or
acts pursuant to Rule 404(b) of the Federal Rules of Evidence . . . no later than 60 days
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prior to trial in this matter.” ECF No. 36 at 1. The amount of time requested was based
upon the potential link of the pending charge of false statement in a passport application
to a fraud investigation involving federal nutrition programs. Compare ECF No. 36 at 2
with ECF No. 57. Defendant asserts that “[i]f the [G]overnment attempts to argue later
that [he] committed some kind of misconduct pursuant to this investigation, and this
allegation should be presented to the jury under Rule 404(b), [he] will need substantial
time to investigate and prepare a response to that allegation.” ECF No. 36 at 2.
In its response, the Government states that it “is aware of its obligations under
Rule 404(b)” and proposes to make its disclosures two weeks prior to trial. The
Government also states that it “has already disclosed a significant portion of discovery
related to potential Rule 404(b) evidence” and “intends to continue to produce all such
evidence as soon as practicable.” Gov’t’s Consol. Resp. at 12. The Government objects,
however, to the extent Defendant seeks the disclosure of “intrinsic” evidence.
At the hearing, Defendant reiterated his request for disclosure 60 days prior to
trial, again referencing the fraud investigation. The Government maintained such fraud
charges were speculative at that point in time and two weeks was sufficient as to the
pending charge of false statement in a passport application.
Rule 404(b) requires the Government to provide reasonable written notice before
trial when evidence of a crime, wrong, or other act will be used to “prov[e] motive
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” Fed. R. Evid. 404(b)(2); see Fed. R. Evid. 404(b)(3)(A) (prosecutor must
“provide reasonable notice of any such evidence that the prosecutor intends to offer at
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trial, so that the defendant has a fair opportunity to meet it”), (C) (in writing). The
Government is required to “articulate in the notice the permitted purpose for which the
[Government] intends to offer the evidence and the reasoning that supports the purpose.”
Fed. R. Evid. 404(b)(3)(B).
“Rule 404(b) . . . applies to the admission of wrongful-act evidence that is
extrinsic to the charged offense . . . .” United States v. Ruiz-Chavez, 612 F.3d 983, 988
(8th Cir. 2010). It does not apply to intrinsic evidence. Id.; see also United States v.
Beltz, 385 F.3d 1158, 1162 (8th Cir. 2004) (“Evidence that is relevant to the crime
charged is not other crimes evidence.”). “Evidence of other wrongful conduct is
considered intrinsic when it is offered for the purpose of providing the context in which
the charged crime occurred.” Ruiz-Chavez, 612 F.3d at 988 (quotation omitted).
No later than three weeks prior to trial, the Government shall provide reasonable
written notice of all “extrinsic” evidence then known to the Government that the
Government intends to offer within the purview of Rule 404(b), “articulat[ing] the
permitted purpose for which the [Government] intends to offer the evidence and the
reasoning that supports the purpose.” Fed. R. Evid. 404(b)(3)(B). If the Government
subsequently discovers additional extrinsic evidence, it shall provide reasonable notice of
such evidence as soon as practicable after such discovery. See Fed. R. Evid.
404(b)(3)(C). The Court reiterates that this ruling applies to the initial Indictment, not the
subsequently filed Superseding Indictment. See ECF No. 139 at 3, 5-6.
5. Defendant’s Motion for Disclosure of Rule 16(a)(1)(G) Materials, ECF No.
37, is GRANTED. Pursuant to Fed. R. Crim. P. 16(a)(1)(G), Defendant seeks disclosure
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of expert testimony “the [G]overnment intends to introduce under Rules 702, 703, or 705
of the Federal Rules of Evidence during its case in chief” no later than 30 days prior to
trial, including identification of the experts; a written summary of their testimony; “[a]
description of the witness[es]’ opinions, including the bases and reasons therefore”; and
“[a] record of the witness[es]’ qualifications.” ECF No. 37 at 1.
Consistent with the parties’ agreement, see supra ¶ 1, no later than 30 days prior to
trial, the Government shall make its principal expert disclosures, and no later than 10
days prior to trial, the Government shall make any rebuttal expert disclosures.
6. Defendant’s Motion for Disclosure Under Brady and Giglio, ECF No. 38 is
GRANTED IN PART and DENIED IN PART. Defendant seeks disclosure of
evidence favorable to him under Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United
States, 405 U.S. 150 (1972), United States v. O’Conner, 64 F.3d 355 (8th Cir. 1995) (per
curiam), and their progeny, among other authorities.
The Government states that it “has complied, and will continue to comply,” with
its obligations under Brady and Giglio. Gov’t’s Consol. Resp. at 13. The Government
confirms that “[t]o the extent evidence exists which is favorable to [Defendant] and
material to either guilt or punishment, the evidence will be, or already has been, timely
disclosed to [Defendant].” Gov’t’s Consol. Resp. at 13. The Government objects,
however, to the extent Defendant seeks disclosures “beyond the requirements of Brady,
Giglio, and their progeny.” Gov’t’s Consol. Resp. at 14.
“The Due Process Clause of the Fifth Amendment requires the government to
disclose to the accused favorable evidence that is material to guilt or punishment.”
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United States v. Dones-Vargas, 936 F.3d 720, 722 (8th Cir. 2019) (citing Brady, 373 U.S.
at 87); see United States v. Whitehill, 532 F.3d 746, 753 (8th Cir. 2008) (“Brady applies
to exculpatory and impeachment evidence, whether or not the accused has specifically
requested the information.” (citations omitted)). “The [Supreme] Court has extended
Brady protection to witness-credibility evidence when the reliability of the witness ‘may
well be determinative of guilt or innocence.’” United States v. Sigillito, 759 F.3d 913,
930 (8th Cir. 2014) (quoting Giglio, 405 U.S. at 154); accord Dones-Vargas, 936 F.3d at
722; see Whitehill, 532 F.3d at 753. “One reason for this extension to witness-credibility
evidence is because exposure of a witness’s motivation in testifying is a proper and
important function of the constitutionally protected right of cross-examination.” Sigillito,
759 F.3d at 930 (quotation omitted). The Eighth Circuit Court of Appeals “ha[s]
determined that witness motivations, like the payment of money as an incentive to change
testimony, fall within the Brady disclosure requirement.” Id. (citing United States v.
Librach, 520 F.2d 550, 554 (8th Cir. 1975)). “Furthermore, the prosecutor must disclose
the possibility of a reward that gives the witness a personal stake in the defendant’s
conviction.” Id. (citing United States v. Bagley, 473 U.S. 667, 683 (1985)).
Defendant’s motion is granted in part to the extent that the Government shall
comply with its obligations under Brady, Gigilo, and their progeny and disclose all
exculpatory and impeachment evidence as well as Jencks Act, 18 U.S.C. § 3500, and
Federal Rule of Criminal Procedure 26.2 materials. See United States v. Mazzulla, 952
F.3d 1091, 1100 (8th Cir. 2019). If the Government subsequently discovers additional
exculpatory or impeachment evidence, it shall disclose such evidence as soon as
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practicable after such discovery.
To the extent Defendant seeks discovery and disclosures outside the Government’s
obligations or seeks materials that have already been produced, his motion is denied. See
Johnson, 228 F.3d at 924.
7. Defendant’s Motion to Retain Rough Notes, ECF No. 39, is GRANTED.
Defendant requests “an Order requiring any law enforcement agents, including FBI
agents and confidential reliable informants and cooperating witnesses acting as
governmental agents, to retain and preserve all rough notes taken as part of their
investigation, whether or not the contents of such rough notes are incorporated in official
records.” ECF No. 39 at 1. The Government does not object to the retention of rough
notes, but opposes an order requiring disclosure of rough notes.
Defendant’s request for the retention and preservation of all rough notes is
granted. To the extent it has not already done so, the Government shall direct its agents
to preserve any rough notes pertaining to this matter.
8. All prior consistent orders relating to the initial Indictment remain in full
force and effect.
[Continued on next page.]
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9. Failure to comply with any provision of this Order or any other prior
consistent Order shall subject the non-complying party, non-complying counsel and/or
the party such counsel represents to any and all appropriate remedies, sanctions and the
like.
Date: October 14 , 2022 s/ Tony N. Leung
Tony N. Leung
United States Magistrate Judge
District of Minnesota
United States v. Farah
Case No. 22-cr-124(1) (NEB/TNL)
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