Full text
CASE 0:22-cr-00124-NEB-TNL Doc. 152 Filed 10/31/22 Page 1 of 26
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
United States of America, Case No. 22-cr-124(1) (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, United States
Attorney’s Office, 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 on Defendant Abdiaziz Shafii Farah’s “Motion for
Reconsideration of Detention Pursuant to 18 U.S.C. 3142(f)(2)(B) and Demand for Speedy
Trial,” ECF No. 132. The Court finds that the matter is suitable for determination without
a hearing and is submitted on the papers. See ECF No. 137 (“The Court will endeavor to
rule on this motion without a hearing; therefore, the parties should undertake to provide
the Court with the information necessary to its determination in their written
submissions.”). For the reasons set forth below, Defendant’s motion is denied.
I. BACKGROUND
In May 2022, Defendant was charged by Complaint with making a false statement
in a passport application in violation of 18 U.S.C. § 1542. See generally ECF No. 2. At
1
CASE 0:22-cr-00124-NEB-TNL Doc. 152 Filed 10/31/22 Page 2 of 26
Defendant’s initial appearance, the Government moved for pretrial detention. See
generally ECF Nos. 6, 8.
United States Probation and Pretrial Services (“Pretrial Services”) “recommended
that [Defendant] be detained pending trial.” Det. Order at 4, ECF No. 14. Pretrial Services
“determined that, based in part on [Defendant’s] ties to Kenya and the nature and
circumstances of the offense, there [wa]s no condition or combination of conditions that
w[ould] reasonably assure [Defendant’s] appearance at future court proceedings.” Det.
Order at 4; see also Def.’s Obj. at 4-6 (summarizing portions of Pretrial Services report),
ECF No. 17.
A. Preliminary & Detention Hearing
At the preliminary and detention hearing, a magistrate judge concluded that there
was probable cause to believe Defendant committed the charged offense. Det. Order at 1;
see generally ECF No. 10. The magistrate judge also found “that there [we]re no
conditions or combination of conditions that w[ould] reasonably ensure [Defendant’s]
appearance at future court proceedings” and granted the Government’s motion for
detention. Det. Order at 1-2.
Among other findings, the magistrate judge relied on testimony at the hearing that
Defendant “applied for a new U.S. passport following the seizure of his U.S. passport card
and book by federal agents,” a seizure which was “part of an investigation of [Defendant’s]
involvement in an alleged massive scheme to fraudulently obtain and misappropriate
millions of dollars in [f]ederal [c]hild [n]utrition [p]rogram funds.” Det. Order at 2. The
magistrate judge found that Defendant “obtained a new passport on the same day he applied
2
CASE 0:22-cr-00124-NEB-TNL Doc. 152 Filed 10/31/22 Page 3 of 26
for one” and, “[a]t the time [he] allegedly fraudulently obtained [the] passport, he was
aware that he was the target of a federal investigation regarding his involvement in the
alleged scheme to fraudulently obtain and launder [f]ederal [c]hild [n]utrition [p]rogram
funds.” Det. Order at 2.
The magistrate judge further found that, in March 2022, Defendant booked at least
one 1 one-way flight to Nairobi, Kenya, but did not board the flight. Det. Order at 3. The
magistrate judge found that Defendant “has significant personal and financial ties to
Kenya.” Det. Order at 3. Defendant “was raised in Kenya and has family residing there,”
and “also sent a text message to an associate claiming to have $6 million worth of
investments in Kenya.” Det. Order at 3.
The magistrate judge additionally found that Defendant “has significant financial
resources.” Det. Order at 3. Based on exhibits received and testimony at the hearing, the
magistrate judge found that Defendant “has received millions of dollars in recent years
alone” and “made numerous large wire transfers to foreign bank accounts.” Det. Order at
3.
The magistrate judge concluded that Defendant “has a motive to flee, a means to
flee, and a place to flee, as demonstrated by [his] present and potential criminal exposure,
his significant financial resources, and his personal and financial ties to Kenya.” Det. Order
at 3.
1
“The Detention Order states that [Defendant] booked two flights to Kenya.” Order Denying Mot. at 3 n.2, ECF
No. 32 (citing Det. Order at 3). “The record is unclear on whether [Defendant] booked one or two flights.” Order
Denying Mot. at 3 n.2.
3
CASE 0:22-cr-00124-NEB-TNL Doc. 152 Filed 10/31/22 Page 4 of 26
B. Objections to Detention Order
Defendant objected to the magistrate judge’s order detaining him pending trial. See
generally Def.’s Objs. Defendant asserted there were “critical factual errors” related to his
appearance in connection with the charge and the contention that he purchased “two
international plane tickets in a short time.” Def.’s Objs. at 1 (emphasis omitted).
Defendant pointed out that he voluntarily surrendered to law enforcement and the
“uncontroverted” evidence in the record was that he had only booked a single flight. Def.’s
Objs. at 10; see Def.’s Objs. at 5, 6, 10, 11; see also Order Denying Mot. at 3 n.1 (noting
Pretrial Services addendum corrected error that Defendant had been “arrested, when in fact,
he self-surrendered”).
Defendant also asserted that his “personal factors . . . strongly support[ed] release,”
citing his residence in the United States for nearly all of his life 2 along with his wife and
“two very young children” as well as his “personal property, real property, and community
ties.” Def.’s Objs. at 1-2. Defendant noted that he had been “under a highly scrutinized,
public federal investigation since January, and has remained in the jurisdiction.” Def.’s
Objs. at 2. Defendant noted that his pretrial risk assessment score “place[d] him at the
lowest risk category, with a 1% chance of failure to appear.” Def.’s Objs. at 2.
2
There are conflicting statements in the record regarding how long Defendant has lived in the United States.
Compare, e.g., 5/25/2022 Hrg. Tr. 62:25 (“He’s lived—he’s lived here since he was 2 years old.”), ECF No. 15;
Def.’s Objs. at 1 (Defendant “has resided in the United States since he was two years old.”), with Order Denying
Mot. at 3 (Defendant “moved to Kenya when he was two years old and lived there for approximately 15 years.”);
Mot. to Reconsid. at 10 (Defendant “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.”),
13 (Defendant “has lived in the United States for over fifteen years.”); see also ECF No. 11 at 1.
4
CASE 0:22-cr-00124-NEB-TNL Doc. 152 Filed 10/31/22 Page 5 of 26
The district judge heard oral argument on Defendant’s objections, which she
construed as a motion to revoke or amend the Detention Order under 18 U.S.C. § 3145(b).
Order Denying Mot. at 1, 4; see generally ECF No. 31. The district judge conducted a de
novo review of the Detention Order, considering the record before the magistrate judge,
including the report and addendum prepared by Pretrial Services and the transcript of the
hearing before the magistrate judge. The district judge likewise concluded that Defendant
“poses a risk of flight and that no condition or combination of conditions will reasonably
ensure his future appearance” and ordered that he be detained. Order Denying Mot. at 2,
4.
The district judge noted that “[t]he [G]overnment appears to have substantial
evidence of [Defendant’s] guilt of the underlying offense,” citing the affidavit in support
of the Complaint. Order Denying Mot. at 3 (citing ECF No. 2-1)). The district judge
pointed out that “[i]n January 2022, [Defendant] was notified that he [wa]s the target of a
larger federal fraud investigation that ha[d] not yet been charged.” Order Denying Mot. at
3 (footnote omitted). The district judge pointed out that Defendant’s “financial resources
give him the means to flee,” and, “[i]n March, [Defendant] booked a one-way flight to
Nairobi, Kenya, but he did not board it.” Order Denying Mot. at 3 (footnote omitted). The
district judge noted that “[t]he record [wa]s unclear on whether [Defendant] booked one or
two flights,” but “[t]he discrepancy ma[de] no difference to the [district judge’s] decision.”
Order Denying Mot. at 3 n.2.
Recognizing that Defendant’s “wife and two small children live in Minnesota,” the
district judge simultaneously acknowledged that Defendant “also has significant ties to
5
CASE 0:22-cr-00124-NEB-TNL Doc. 152 Filed 10/31/22 Page 6 of 26
Kenya.” Order Denying Mot. at 3. Defendant “moved to Kenya when he was two years
old and lived there for approximately 15 years.” Order Denying Mot. at 3. Defendant’s
father lives in Kenya and Defendant visited his father in Kenya in December 2021. Order
Denying Mot. at 3. Defendant also “claimed to have invested $6 million in Kenya over the
past three years.” Order Denying Mot. at 3.
“Compelling to [the district judge wa]s the fact of a much larger fraud investigation,
the FBI search, the nature of the underlying charge and its temporal proximity to that
search, and the booked flight.” Order Denying Mot. at 3-4. The district judge explained
that Defendant was “the target of a well-publicized and large government fraud
investigation,” and, “[a]fter the FBI searched his home and car and seized his passport and
passport card, [Defendant] booked a flight to Kenya and applied for a new passport.” Order
Denying Mot. at 4. “The obvious inference [wa]s that [Defendant] was planning to flee
the United States to evade prosecution for the underlying fraud scheme.” Order Denying
Mot. at 4. The district judge could “draw no other conclusion than that [Defendant] would
engage in a similar plan if released.” Order Denying Mot. at 4. The district judge
concluded that “[t]he evidence shows not just a risk of flight, but a demonstrated plan of
flight and actions taken to carry out that plan.” Order Denying Mot. at 4.
C. Indictments & Complex-Case Designation
While Defendant’s objections were pending, he was indicted on one count of
making a false statement in a passport application in violation of 18 U.S.C. § 1542. ECF
No. 22.
6
CASE 0:22-cr-00124-NEB-TNL Doc. 152 Filed 10/31/22 Page 7 of 26
On September 13, 2022, a federal grand jury returned a series of six indictments
charging more than 40 individuals related to the prosecution of an alleged massive
fraudulent scheme to obtain and misappropriate more than $250 million in federal child
nutrition program funds. The Government has alleged that these individuals fraudulently
obtained, misappropriated, and laundered millions of dollars in program funds that were
intended as reimbursements for the costs of serving meals to children. The charges in these
cases include, among other things, conspiracy to commit wire fraud, wire fraud, conspiracy
to commit money laundering, money laundering, conspiracy to commit federal programs
bribery, and federal programs bribery. This is one of those six cases.
The Superseding Indictment in this case added seven co-defendants and 42 new
charges. See generally ECF No. 57. As to Defendant, the Superseding Indictment again
charged Defendant with one count of making a false statement in a passport application in
violation of 18 U.S.C. § 1542 along with 23 new counts: one count of wire fraud conspiracy
in violation of 18 U.S.C. §§ 371 and 1343; seven counts of wire fraud in violation of 18
U.S.C. § 1343; one count of conspiracy to commit federal programs bribery in violation of
18 U.S.C. § 666(a)(2); two counts of federal programs bribery in violation of 18 U.S.C.
§ 666; one count of conspiracy to commit money laundering in violation of 18 U.S.C.
§ 1956(a)(1)(B)(i); and eleven counts of money laundering in violation of 18 U.S.C.
§ 1957. When Defendant made his initial appearance in connection with the Superseding
Indictment, he was ordered detained based on the previous order. ECF No. 95.
The Government subsequently moved to designate this case as complex for
purposes of the Speedy Trial Act. See generally ECF No. 111. “In its motion, the
7
CASE 0:22-cr-00124-NEB-TNL Doc. 152 Filed 10/31/22 Page 8 of 26
Government represent[ed] that this case is unusual and complex in that the indicted conduct
involves the prosecution of a massive fraudulent scheme to obtain and misappropriate more
than $250 million in federal child nutrition program funds.” ECF No. 125 at 1. “The
Government report[ed] that the discovery in this matter is exceptionally voluminous and
includes millions of pages of investigative materials.” ECF No. 125 at 1.
The grand jury issued more than 600 subpoenas, and the
responses to these subpoenas include financial statements and
other records for hundreds of bank accounts and credit card
merchant accounts. The Government interviewed hundreds of
witnesses and individuals involved in the fraud scheme, and
will be producing hundreds of reports documenting those
interviews. The Government obtained and executed physical
search warrants for 32 businesses and residences, during which
the Government seized approximately 380 electronic devices,
including computers, laptops, and cell phones. The
Government also obtained warrants to search more than 45
email accounts, through which the Government obtained more
than 250,000 emails relevant to the investigation.
ECF No. 125 at 1-2 (quotations and citations omitted).
The Court granted the Government’s motion in part and designated this matter and
the related matters as complex under 18 U.S.C. § 3161(h)(7)(B)(ii). The Court found that
“[g]iven the large volume of discovery, the nature of the evidence collected, and the
multiple issues involved in the discovery process, as well as the sheer number of
defendants, this case and the related cases are so complex that it is unreasonable to expect
adequate preparation for pretrial proceedings and for the trial itself within the time limits
set forth in the Speedy Trial Act.” ECF No. 125 at 3-4. “The Court further f[ound] that,
pursuant to 18 U.S.C. § 3161(h)(7)(A), the ends of justice served by making this
designation and granting . . . [a] continuance outweigh the best interests of the public and
8
CASE 0:22-cr-00124-NEB-TNL Doc. 152 Filed 10/31/22 Page 9 of 26
Defendants in a speedy trial and the failure to grant a continuance would deny the parties
the reasonable time necessary for effective preparation, taking into account the exercise of
due diligence.” ECF No. 125 at 4. The Court directed the parties to meet and confer and
submit a proposed case management schedule for the completion of pretrial proceedings
on or before November 4, 2022. ECF No. 125 at 4.
II. ANALYSIS
Defendant requests reconsideration of his detention pursuant to 18 U.S.C.
§§ 3142(f) and (i). Defendant also asserts his release is required by the Fifth and Sixth
Amendments to the United States Constitution. According to Defendant, “the detention
analysis has changed markedly” in light of the Superseding Indictment and the complexity
of the alleged fraud. Mot. for Reconsid. at 1, ECF No. 132. The Government opposes
Defendant’s request. See generally ECF No. 144.
A. Recommendation of Pretrial Services
Following Defendant’s request for reconsideration, the Court received an updated
report from Pretrial Services. See generally ECF No. 141. The report, filed under seal but
made available to counsel, expressed concerns about the effectiveness of location
monitoring; the nature of the passport charge and allegations that Defendant applied for a
new passport card in March 2022, indicating the prior card had been lost when in fact it
had been seized by the FBI; Defendant’s ties to Kenya, both personal and financially; and
Defendant’s substantial unexplained assets. Pretrial Services recommended against
Defendant’s release.
9
CASE 0:22-cr-00124-NEB-TNL Doc. 152 Filed 10/31/22 Page 10 of 26
B. Section 3142(f)
Section 3142(f) permits a detention hearing to be reopened when there is
information that was not known at the time of the hearing “that has a material bearing on
the issue whether there are conditions of release that will reasonably assure the appearance
of [the person detained] . . . and the safety of any other person and the community.” 18
U.S.C. § 3142(f). Its function “is to allow parties to present new information that increases
the likelihood a defendant would appear in court or decrease[s] the potential danger a
defendant poses to an individual or the community as a whole.” United States v. White,
No. 19-cr-204 (ECT/BRT), 2020 U.S. Dist. LEXIS 63741, at *4 (D. Minn. Apr. 1, 2020);
see also United States v. Elburki, No. 19-00406-01-CR-W-RK, 2022 WL 1307092, at *2
(W.D. Mo. May 2, 2022) (“By its express terms, [§ 3142(f)] applies to reconsideration of
a detention order and provides that reconsideration is permissible ‘only when there is new
information that would materially influence the judgment’ concerning potential flight risk
and potential harm to any other person or the community.” (quoting United States v.
Cisneros, 328 F.3d 610, 614 (10th Cir. 2003)).
Defendant has not presented new information that alters the individualized
assessment based on the factors set forth in 18 U.S.C. § 3142(g) of the Bail Reform Act.
Under § 3142(g), the Court considers (1) “the nature and circumstances of the offense
charged”; (2) “the weight of the evidence against the person”; (3) “the history and
characteristics of the person”; and (4) “the nature and seriousness of the danger to any
person or the community that would be posed by the person’s release.”
10
CASE 0:22-cr-00124-NEB-TNL Doc. 152 Filed 10/31/22 Page 11 of 26
Defendant’s arguments go the first factor—the nature and circumstances of the
offense charged. Defendant asserts that “the trajectory” of this case is now “completely
different” in light of the Superseding Indictment and he “faces a remarkably fact-intensive
and lengthy prosecution.” Mot. for Reconsid. at 3. Defendant also points out that, of the
47 individuals initially charged in connection with the alleged fraud, only two were
detained.
The issuance of the Superseding Indictment does not have a material bearing on the
issue of whether there are conditions that will reasonably assure Defendant’s appearance
and the prior findings that there is no condition or combination of conditions that would
reasonably assure that Defendant would not flee. This Court agrees with the conclusion of
the district court that “[t]he obvious inference” to be drawn from Defendant’s actions
following the seizure of his passport card by the FBI “is that [he] was planning to flee the
United States to evade prosecution for the underlying fraud scheme.” Order Denying Mot.
at 4. If anything, the formalization of charges related to the alleged fraudulent scheme to
obtain and misappropriate millions of dollars in federal child nutrition funds through the
Superseding Indictment and the serious nature of those charges decrease, rather than
increase, the likelihood that Defendant would appear in Court and underscore the concerns
for risk of flight previously expressed by both the magistrate judge and district judge.
Moreover, “[a]though the Bail Reform Act identifies several factors to consider in the
release or detention determination, the treatment of codefendants is not one of them.”
Elburki, 2022 WL 1307092, at *4 (citing 18 U.S.C. § 3142(g)). “[T]he treatment of
11
CASE 0:22-cr-00124-NEB-TNL Doc. 152 Filed 10/31/22 Page 12 of 26
codefendants has no material bearing on the issue of whether there are conditions of release
that will reasonably assure the appearance of Defendant.” Id. (emphasis added).
C. Section 3142(i)
Section 3142(i) allows for the detained person’s “temporary release” upon
determining “such release to be necessary for preparation of the person’s defense or for
another compelling reason.” 18 U.S.C. § 3142(i). “[T]he plain language of this provision
reveals . . . it applies in rare circumstances only: when release is ‘necessary’ for defense
preparations or when there is another ‘compelling reason.’” United States v. Villegas, 587
F. Supp. 3d 1010, 1012 (C.D. Cal. 2020); see also, e.g., United States v. McKnight, No.
CR18-16 TSZ, 2020 WL 1872412, at *2 (W.D. Wash. Apr. 15, 2020) (“The relief
authorized by § 3142(i) is to be used ‘sparingly.’”). “A defendant bears the burden of
establishing circumstances warranting temporary release under § 3142(i).” United States
v. Clark, 448 F. Supp. 3d 1152, 1155 (D. Kan. 2020); see also, e.g., United States v.
Buswell, No. 11-CR-198-01, 2013 WL 210899, at *5 (W.D. La. Jan. 18, 2013); United
States v. Dupree, 833 F. Supp. 2d 241, 246 (E.D. N.Y. 2011).
“Courts considering whether pretrial release is ‘necessary’ under § 3142(i) have
considered: (1) time and opportunity the defendant has to prepare for the trial and to
participate in his defense; (2) the complexity of the case and volume of information; and
(3) expense and inconvenience associated with preparing while incarcerated.” United
States v. Boatwright, No. 2:19-cr-00301-GMN-DJA, ___ F. Supp. 3d ____, 2020 WL
1639855, at *4 (D. Nev. Apr. 2, 2020) (citing United States v. Cecrle, No. 2:12-CR-400-
12
CASE 0:22-cr-00124-NEB-TNL Doc. 152 Filed 10/31/22 Page 13 of 26
JAD-GWF, 2014 WL 31674, at *4 (D. Nev. Jan. 3, 2014)); see also Buswell, 2013 WL
210899, at *6-7; Dupree, 833 F. Supp. 2d at 248-50.
Defendant asserts in summary fashion that “[g]iven the unique facts of th[is] case,
[he] cannot fully participate in his defense while detained,” and “[t]he alternative, his
attorneys reviewing millions of pages of documents with him over Zoom, is just not
realistic.” Mot. for Reconsid. at 13. Yet, the complexity of the case and volume of
information at issue “alone[] are not sufficiently compelling to find that [a defendant’s]
release is ‘necessary’ for the preparation of his defense.” Dupree, 833 F. Supp. 2d at 249;
see also Cecrle, 2014 WL 31674, at *5 (“Heightened case complexity is not a basis for
pretrial release.”). In United States v. Petters, the defendant was charged in connection
with “his alleged execution of perhaps the largest fraud scheme ever perpetrated in
Minnesota, and one of the largest in this country’s history.” No. 08-cr-364 (RHK/AJB),
2009 WL 205188, at *1 (D. Minn. Jan. 28, 2009) (quotation omitted). “A grand jury later
returned a 20-count indictment against [the d]efendant charging him with mail fraud, wire
fraud, conspiracy, and money laundering.” Id. In rejecting the defendant’s argument that
the complexity of the case rendered temporary release necessary for the preparation of his
defense under § 3142(i), the Petters court held that “[w]hile this case may, in fact be
complicated and require [the d]efendant to review hundreds if not thousands of documents
and meet with his lawyers for dozens of hours, that fact, standing alone, simply does not
justify [the d]efendant’s release.” Id. at *2; see also, e.g., United States v. Birbragher, No.
07-CR-1023-LRR, 2008 WL 2246913, at *1 (N.D. Ia. May 29, 2008) (denying request for
release under § 3142(i) where defendant asserted he was unable to adequately prepare his
13
CASE 0:22-cr-00124-NEB-TNL Doc. 152 Filed 10/31/22 Page 14 of 26
defense while detained due to the “extremely complicated and document-intensive [nature
of the] case”). The Petters court went on to state that “accepting such an argument would
mean that the more complicated the crime, the more likely a defendant should be released
prior to trial,” which it described as “clearly an absurd result.” 2009 WL 205188, at *2.
The reasoning of the Petters court applies with equal force to this case. See also United
States v. Stanford, 722 F. Supp. 2d 803, 811 (S. D. Tex. 2010) (“Stanford essentially argues
that he must be released from pretrial detention because of the complexity of the case and
the enormous volume of documents involved. The Petters court aptly explained the
incongruity of such a proposition . . . .”).
Based on the record before the Court, Defendant has not shown that pretrial release
is “necessary” for him to assist in the preparation of his defense.
D. Constitutional Arguments
In addition to his arguments under § 3142(f) and (i), Defendant also asserts that his
continued detention violates his constitutional rights under the Fifth and Sixth
Amendments.
1. Due Process Under the Fifth Amendment
Defendant asserts that he has been detained for more than four months and the
complexity of this case means any trial “will be a long time from now.” Mot. for Reconsid.
at 8.
Under the Fifth Amendment, “[n]o person shall be . . . deprived of life, liberty, or
property, without due process of law . . . .” U.S. Const. amend. V. “An individual may be
detained prior to trial without violating . . . [the Fifth Amendment] so long as that
14
CASE 0:22-cr-00124-NEB-TNL Doc. 152 Filed 10/31/22 Page 15 of 26
confinement does not amount to ‘punishment of the detainee.’” United States v. Rush, No.
S1-4:14 CR 88 RWS(SPM), 2017 WL 6541436, at *3 (E.D. Mo. Dec. 1, 2017) (quoting
Bell v. Wolfish, 441 U.S. 520, 535 (1979)), report and recommendation adopted, 2017 WL
6550680 (E.D. Mo. Dec. 21, 2017); see also, e.g., United States v. Stanford, 394 F. App’x
72, 74 (5th Cir. 2010) (per curiam); Buswell, 2013 WL 210899, at *8. “[W]hile pretrial
detention involves incarceration and necessarily a great diminution of personal liberty, it
is not punishment if it serves a legitimate regulatory purpose which outweighs its punitive
aspects and is not excessive in relationship to that purpose.” United States v. Maull, 773
F.2d 1749, 1485 (8th Cir. 1985); cf. United States v. Salerno, 481 U.S. 739, 746-748 (1987)
(“We conclude, therefore, that the pretrial detention contemplated by the Bail Reform Act
is regulatory in nature, and does not constitute punishment before trial in violation of the
Due Process Clause.”); United States v. Archambault, 240 F. Supp. 2d 1082, 1084-85 (D.
S.D. 2002) (Salerno “held that limited pre-trial detention does not violate due process so
long as it is ‘regulatory’ and ‘not penal’”).
“Excessively prolonged detention may become so unreasonable in relation to the
regulatory goals of detention that it violates due process.” Buswell, 2013 WL 210899, at
*8 (quotation omitted); see also Archambault, 240 F. Supp. 2d at 1085 (“Court have held
that prolonged pre-trial detention may become excessive and consequently punitive so as
to offend due process constraints.” (citing cases)); cf. Salerno, 481 U.S. at 747 n.4 (taking
“no view as to the point at which detention in a particular case might become excessively
prolonged, and therefore punitive, in relation to Congress’ regulatory goal”). “[T]he due-
process limit on the duration of preventative detention requires assessment on a case-by-
15
CASE 0:22-cr-00124-NEB-TNL Doc. 152 Filed 10/31/22 Page 16 of 26
case basis, for the clause establishes no specific limit on the length of pretrial confinement.”
United States v. Hare, 873 F.2d 796, 801 (5th Cir. 1989) (footnotes omitted); see also, e.g.,
Rush, 2017 WL 6541436, at *4; Buswell, 2013 WL 210899, at *8; Archambault, 240 F.
Supp. 2d at 1085. “Length of detention alone is not dispositive and carries no fixed weight
in the review process.” Archambault, 240 F. Supp. 2d at 1085; accord Buswell, 2013 WL
210899, at *8. “Length of detention ‘will rarely by itself offend due process.’” Buswell,
2013 WL 210899, at *8 (quoting United States v. Orena, 986 F.2d 628, 631 (2d Cir. 1993)).
Courts have considered several non-exclusive factors, articulated in different ways,
when determining whether continued pretrial detention would violate due process,
including “the strength of the evidence justifying detention, the government’s
responsibility for the delay in proceeding to trial, and the length of the detention itself.”
United States v. Briggs, 697 F.3d 98, 101 & n.1 (2d Cir. 2012) (noting test has sometimes
been articulated in four parts to include “the gravity of the charges” and reasoning
“[b]ecause Congress has required courts to consider ‘the nature and circumstances of the
offense charged’ as part of their inquiry into the strength of the evidence justifying
detention, see 18 U.S.C. § 3142(g)(1), we feel that no substance is lost, and some clarity is
gained, by stating the standard in three parts”); accord United States v. Williams, 736 F.
App’x 267, 271 (2d Cir. 2018) (summary order); see also, e.g., United States v. Torres,
995 F.3d 695, 708 (9th Cir. 2021) (“[I]n evaluating whether a due process violation has
occurred, we weigh the following factors: (1) the length of the defendant’s pretrial
detention; (2) the prosecution’s contribution to the delay; and (3) the evidence supporting
detention under the Bail Reform Act.”); compare with, e.g., Hare, 873 F.2d at 801
16
CASE 0:22-cr-00124-NEB-TNL Doc. 152 Filed 10/31/22 Page 17 of 26
(considering “not only factors relevant in the initial detention decision, such as the
seriousness of the charges, the strength of the government’s proof that the defendant poses
a risk of flight or a danger to the community, and the strength of the government’s case on
the merits, but also additional factors such as the length of detention that has in fact
occurred or may occur in the future, the non-speculative nature of future detention, the
complexity of the case, and whether the strategy of one side or the other occasions the
delay” (footnote omitted)); Rush, 2017 WL 6541436, at *4 (“Courts have developed and
applied the following non-exclusive factors when deciding whether continued pretrial
detention would violate due process: (1) the non-speculative length of expected
confinement; (2) the extent to which the government bears responsibility for delay; (3) the
gravity of the charges; and (4) the strength of the evidence justifying detention including
the existence of any rebuttable presumption for detention.”);
Beginning with the length of detention and the Government’s contribution to the
delay, Defendant has now been detained for five months, which, although not insignificant
to Defendant and his family, is far less than the 31 months in the case of United States v.
Hofstetter, No. 3:15-CR-27-TAV-CCS, 2017 WL 4079181 (E.D. Tenn. Sept. 14, 2017),
that Defendant relies upon. Defendant has not established dilatory action by the
Government. Nor has Defendant put forth any evidence indicating that any delay is
attributable to anything other than the complexity of this case. As stated above, in moving
to designate this case as complex for purposes of the Speedy Trial Act, the Government
represented that
17
CASE 0:22-cr-00124-NEB-TNL Doc. 152 Filed 10/31/22 Page 18 of 26
discovery in this matter is exceptionally voluminous and
includes millions of pages of investigative materials. The
grand jury issued more than 600 subpoenas, and the responses
to these subpoenas include financial statements and other
records for hundreds of bank accounts and credit card merchant
accounts. The Government interviewed hundreds of witnesses
and individuals involved in the fraud scheme, and will be
producing hundreds of reports documenting those interviews.
The Government obtained and executed physical search
warrants for 32 businesses and residences, during which the
Government seized approximately 380 electronic devices,
including computers, laptops, and cell phones. The
Government also obtained warrants to search more than 45
email accounts, through which the Government obtained more
than 250,000 emails relevant to the investigation.
ECF No. 125 at 1-2 (quotations and citations omitted). The Court ultimately designated
this case (as well as the related cases) as complex under 18 U.S.C. 3161(h)(7)(B)(ii) due
to the large volume of discovery, the nature of the evidence collected, and the multiple
issues involved in the discovery, finding these cases “so complex that it is unreasonable to
expect adequate preparation for pretrial proceedings and for the trial itself within the time
limits set forth in the Speedy Trial Act.” ECF No. 125 at 3-4. The Court “further f[ound]
that, pursuant to 18 U.S.C. § 3161(h)(7)(A), the ends of justice served by making this
designation and granting . . . [a] continuance outweigh the best interests of the public and
Defendants in a speedy trial and the failure to grant a continuance would deny the parties
the reasonable time necessary for effective preparation, taking into account the exercise of
due diligence.” ECF No. 125 at 4. The time for objecting to this Court’s order has passed
and there was no objection by Defendant. See Fed. R. Crim. P. 59(a); D. Minn. LR
72.2(a)(1). “When the complexity of the case is a reason for the length of the detention,
the detention continues to be regulatory in nature rather than penal.” Stanford, 722 F. Supp.
18
CASE 0:22-cr-00124-NEB-TNL Doc. 152 Filed 10/31/22 Page 19 of 26
2d at 810 (citing Hare, 873 F.2d at 801); accord United States v. Ashley, No. 4:20-cr-318-
ALM-KPJ, 2022 WL 1046363, at *5 (E.D. Tex. Apr. 7, 2022). “[T]he application of the
complex-trial exception to the Speedy Trial Act does not by itself change the regulatory
nature of pretrial detention.” Hare, 873 F.2d at 801; accord Stanford, 722 F. Supp. 2d at
810.
As to the evidence supporting detention, this is Defendant’s second challenge to his
pretrial detention based on the conclusion that there is no conditions or combination of
conditions that will reasonably ensure his appearance at future court proceedings. “When
the judge finds that no condition can reasonably prevent defendant’s flight, he or she is
empowered to detain. Assuring appearance at trial long has been a proper concern of
district courts.” Maull, 773 F.2d at 1485. As outlined in greater detail above, the evidence
underlying the findings that Defendant presents a significant risk of flight include the
nature and circumstances of the passport offense, Defendant’s awareness that he was the
target of a large federal fraud investigation, his significant financial resources, his
significant ties to Kenya, and “his demonstrated plan of flight and actions to carry out that
plan” by applying for a new passport and booking a one-way flight to Kenya after his
passport card was seized by the FBI. Gov’t’s Opp’n at 12. The magistrate judge who
ordered detention initially concluded that Defendant “has a motive to flee, a means to flee,
and a place to flee, as demonstrated by [his] present and potential criminal exposure, his
significant financial resources, and his personal and financial ties to Kenya.” Det. Order
at 3. The district judge reviewing that order similarly concluded that “[t]he obvious
inference [wa]s that [Defendant] was planning to flee the United States to evade
19
CASE 0:22-cr-00124-NEB-TNL Doc. 152 Filed 10/31/22 Page 20 of 26
prosecution for the underlying fraud scheme” and could “draw no other conclusion than
that [Defendant] would engage in a similar plan if released.” Order Denying Mot. at 4.
The district judge likewise concluded that “[t]he evidence shows not just a risk of flight,
but a demonstrated plan of flight and actions taken to carry out that plan.” Order Denying
Mot. at 4.
Based on the foregoing, the Court concludes that Defendant’s continued pretrial
detention is reasonably related to the legitimate government interest of assuring his
appearance at trial, and the length of his detention does not violate his right to due process
under the Fifth Amendment.
2. Equal Protection Under the Fifth Amendment
Defendant additionally asserts that his continued detention based, in whole or in
part, on his national origin is discriminatory and violates his right to equal protection under
the Fifth Amendment. Defendant asserts that the Government “weaponized the fact that
he was born abroad” in arguing for detention. Mot. for Reconsid. at 11.
“The Fifth Amendment does not contain an express equal protection clause.
Nevertheless, it prohibits discrimination that is so unjustifiable as to be in contravention of
due process.” United States v. Wynde, 579 F.2d 1088, 1092 (8th Cir. 1978); see also, e.g.,
Sessions v. Morales-Santana, 137 S. Ct. 1678, 1686 n.1 (2017) (equal-protection guarantee
is “implicit in the Fifth Amendment’s Due Process Clause” (citing Weinberger v.
Wisenfeld, 420 U.S. 636, 638 n.2 (1975)). Accordingly, “[a]lthough the [F]ifth
[A]mendment does not contain an express ‘equal protection’ clause, it is now settled that
the concept of due process of law prohibits the federal government from discriminating
20
CASE 0:22-cr-00124-NEB-TNL Doc. 152 Filed 10/31/22 Page 21 of 26
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); Bolling v. Sharpe, 347 U.S. 497 (1954)).
Defendant identifies Kenya as his country of national origin. See Mot. for Reconsid.
at 10 (describing himself as “a naturalized citizen who was born in Somalia in 1988, was
brought to a Kenyan refugee camp in about 1990, and immigrated to Minnesota in 2005,”
where he has lived ever since), 12 (stating Defendant “is from Kenya”). Defendant was
not, however, detained on the basis of his national origin. Defendant’s detention was and
is based on the preponderance of the evidence showing a substantial risk of flight and that
there was and is no condition or combination of conditions that would reasonably assure
his appearance at future court proceedings. That evidence included (1) Defendant’s actions
in allegedly obtaining a new passport under false pretenses after his was seized in
connection with a massive fraud investigation of which Defendant knew he was a target;
(2) the temporal proximity between that seizure and Defendant’s alleged efforts to obtain
a new passport; (3) Defendant booking a one-way flight to Kenya; (4) Defendant’s
significant financial resources, including a representation “to an associate claiming to have
$6 million worth of investments in Kenya,” Det. Order at 3; and (5) Defendant’s personal
ties to Kenya, where his father lives. As summarized by the district judge, “After the FBI
searched his home and car and seized his passport and passport card, [Defendant] booked
a flight to Kenya and applied for a new passport.” Order Denying Mot. at 4. Most
“[c]ompelling” to the district judge were “the fact of a much larger fraud investigation, the
21
CASE 0:22-cr-00124-NEB-TNL Doc. 152 Filed 10/31/22 Page 22 of 26
FBI search, the nature of the underlying charge and its temporal proximity to that search,
and the booked flight.” Order Denying Mot. at 3-4.
The magistrate judge found that Defendant “has a motive to flee, a means to flee,
and a place to flee, as demonstrated by his present and potential criminal exposure, his
significant financial resources, and his personal and financial ties to Kenya.” Det. Order
at 3. The district judge likewise concluded that “[t]he evidence shows not just a risk of
flight, but a demonstrated plan of flight and actions taken to carry out that plan.” Order
Denying Mot. at 4. The fact that some of the evidence giving rise to serious concerns about
Defendant’s risk of flight was connected to the location he identifies as his country of
national origin does not perforce mean his detention was based on that national origin.
3. Right to a Speedy Trial Under the Sixth Amendment
Defendant also asserts his right to a speedy trial under the Sixth Amendment.
According to Defendant, his continued detention will violate that right.
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial . . . .” U.S. Const. amend VI. “The Sixth
Amendment right to a speedy trial attaches at the time of arrest or indictment, whichever
comes first, and continues until the trial commences, and no Sixth Amendment right to a
speedy trial arises until charges are pending.” United States v. Perez-Perez, 337 F.3d 990,
995 (8th Cir. 2003) (quotation omitted); see also United States v. Johnson, 990 F.3d 661,
670 (8th Cir. 2021). “A delay approaching one year may meet the threshold for
presumptively prejudicial delay requiring a speedy trial inquiry.” Perez-Perez, 337 F.3d
at 995; accord United States v. Titlbach, 339 F.3d 692, 699 (8th Cir. 2003); see also
22
CASE 0:22-cr-00124-NEB-TNL Doc. 152 Filed 10/31/22 Page 23 of 26
Doggett v. United States, 505 U.S. 647, 652 n.1 (1992) (“Depending on the nature of the
charges, the lower courts have generally found postaccusation delay ‘presumptively
prejudicial’ at least as it approaches one year.”).
In Barker v. Wingo, “[t]he Supreme Court identified four factors to consider when
applying a Sixth Amendment balancing test to a pretrial delay: the length of delay, the
reason for delay, whether the defendant asserted the right to a speedy trial, and whether the
defendant suffered any prejudice.” Perez-Perez, 337 F.3d at 995 (citing 407 U.S. 514, 530
(1972)); see also, e.g., United States v. Ali, 47 F.4th 691, 697-98 (8th Cir. 2022); Johnson,
990 F.3d at 670.
Significantly,
to trigger a speedy trial analysis, an accused must allege that
the interval between the accusation and trial has crossed the
threshold dividing ordinary from ‘presumptively prejudicial’
delay, since, by definition, he cannot complain that the
government has denied him a ‘speedy trial’ if it has, in fact,
prosecuted his case with customary promptness.
Doggett, 505 U.S. at 651-52 (emphasis added); accord Ali, 47 F.4th at 698; United States
v. Leveke, 38 F.4th 662, 671 (8th Cir. 2022). This is a “threshold showing” Defendant is
required to make. Leveke, 38 F.4th at 671; see Barker, 407 U.S. at 530 (“The length of the
delay is to some extent a triggering mechanism.”); United States v. Summage, 575 F.3d
864, 875 (8th Cir. 2009) (“Initially, we must determine whether the delay between
indictment and Summage’s motion to dismiss was presumptively prejudicial.”).
“[C]onsideration of the length of the delay requires a double inquiry: (1) whether the length
of delay was presumptively prejudicial such that it triggers the Barker analysis, and, if
23
CASE 0:22-cr-00124-NEB-TNL Doc. 152 Filed 10/31/22 Page 24 of 26
triggered, (2) the extent to which the delay stretches beyond the bare minimum needed to
trigger judicial examination of the claim.” Johnson, 990 F.3d at 670 (quotation omitted);
see also Doggett, 505 U.S. at 652 (noting “double enquiry”). “Where no presumptively
prejudicial delay existed, [courts] need not examine the remaining three factors under
Barker.” Titlbach, 339 F.3d at 699; accord Ali, 47 F.4th at 698; see also Barker, 407 U.S.
at 530 (“Until there is some delay which is presumptively prejudicial, there is no necessity
for inquiry into the other factors that go into the balance.”).
In his motion, Defendant asserts that “the delay in this case is very likely to be
uncommonly long,” Mot. for Reconsid. at 8, not that it has become so. To the extent
Defendant asserts in his reply that “the delay [here] is already long and will get much
longer,” Def.’s Reply at 4, ECF No. 146, Defendant’s argument glosses over the realities
of what has occurred during the approximately five months that he has been detained.
Defendant’s case proceeded apace on the passport charge with pretrial motions and the
criminal motions hearings generally occurring in the ordinary course. The Government
requested and was granted a two-day extension to respond to Defendant’s motion to
suppress. The report and recommendation on Defendant’s motion to suppress was issued
on October 14, 2022, and rulings on Defendant’s remaining pretrial motions were issued
by separate order the same day. While those pretrial matters were under advisement, the
Superseding Indictment was handed down, adding seven co-defendants and 42 new
charges. As stated above, with respect to Defendant, the Superseding Indictment again
charged him with one count of making a false statement in a passport application along
with 23 new counts. The Court has directed the parties to meet and confer and submit a
24
CASE 0:22-cr-00124-NEB-TNL Doc. 152 Filed 10/31/22 Page 25 of 26
proposed case management schedule for the completion of pretrial proceedings in light of
the complexities of this and the related cases. Cf. Barker, 407 U.S. at 530-31
(“Nevertheless, because of the imprecision of the right to a speedy trial, the length of delay
that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances
of the case. To take but one example, the delay that can be tolerated for an ordinary street
crime is considerably less than for a serious, complex conspiracy charge.” (footnote
omitted)); Johnson, 990 F.3d at 670 (“[T]he heavy discovery in this case mitigates the
delay’s length.”).
Even assuming for sake of argument that the entirety of these five months should
be considered as delay in this case, five months does not meet the threshold requirement
for presumptively prejudicial delay. See, e.g., Leveke, 38 F.4th at 671-72 (nine-month
delay not presumptively prejudicial); Titlbach, 339 F.3d at 699 (eight-month delay not
presumptively prejudicial). Accordingly, the Court need not consider the remaining Barker
factors. Doggett, U.S. at 651-52; Barker, 407 U.S. at 530; Leveke, 38 F.4th at 672;
Titlbach, 339 F.3d at 699.
[Continued on next page.]
25
CASE 0:22-cr-00124-NEB-TNL Doc. 152 Filed 10/31/22 Page 26 of 26
III. ORDER
For the reasons stated above, IT IS HEREBY ORDERED that Defendant’s
“Motion for Reconsideration of Detention Pursuant to 18 U.S.C. 3142(f)(2)(B) and
Demand for Speedy Trial,” ECF No. 132, is DENIED.
Date: October 31 , 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)
26