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CASE 0:22-cr-00124-NEB-DTS Doc. 278 Filed 07/10/23 Page 1 of 56
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Criminal No. 22-124 (NEB/TNL)
UNITED STATES OF AMERICA,
Plaintiff,
GOVERNMENT’S
v.
CONSOLIDATED RESPONSE TO
DEFENDANTS’ PRETRIAL
ABDIAZIZ SHAFII FARAH, ET AL.,
MOTIONS
Defendants.
The United States of America, by and through its attorneys, Andrew M. Luger,
United States Attorney for the District of Minnesota, Joseph H. Thompson, Harry M.
Jacobs, Matthew S. Ebert, and Chelsea A. Walcker, Assistant U.S. Attorneys,
respectfully submits the following consolidated response to defendants’ pretrial
motions.
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TABLE OF CONTENTS
I. BACKGROUND .................................................................................................. 1
A. The Scheme............................................................................................... 1
B. The Superseding Indictment ................................................................... 1
C. The Discovery Productions ...................................................................... 3
II. THE DEFENDANTS’ DISCOVERY MOTIONS................................................ 3
A. Defendants’ Joint Motions for Discovery (Dkt. ##229, 231, 239) ........... 3
B. Defendants’ Joint Motion for Disclosure of Brady Evidence
(Dkt. #230) ................................................................................................ 4
C. Defendants’ Motion to Disclose and Make Informant Available for
Interview (Dkt. ##233, 234, 246) ........................................................... 13
D. Defendants’ Joint Motion for Discovery Relief (Dkt. #241) .................. 13
III. DEFENDANTS’ MOTIONS FOR BILL OF PARTICULARS
(Dkt. ##255, 236) ............................................................................................... 16
A. The Superseding Indictment Contains a Detailed Description of the
Charged Crimes ...................................................................................... 18
B. The Motions Should Be Denied Because a Bill of Particulars is
Not a Discovery Device .......................................................................... 25
IV. DEFENDANTS’ MOTIONS TO CHANGE VENUE (Dkt. #260) .................... 28
A. There Is No Presumption of Prejudice Under the Facts of this Case and
Transfer Would Be Inappropriate ......................................................... 29
V. DEFENDANTS’ MOTIONS TO SEVER
(Dkt. ##242, 243, 245, 248, 252, 253, 257, 259, 263) ....................................... 42
A. The Defendants Should Be Tried Jointly with All Co-Defendants ..... 44
B. All Counts in the Superseding Indictment Should Properly Be Heard
in the Same Trial .................................................................................... 47
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C. A Joint Trial Will Not Violate the Defendants’ Right to
Confrontation.......................................................................................... 50
VI. MOTION TO SUPPRESS DEFENDANT’S STATEMENT (Dkt. #250) ......... 50
VII. CONCLUSION .................................................................................................. 53
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I. BACKGROUND
The defendants carried out a scheme that defrauded the Federal Child
Nutrition Program, a government aid program designed to provide free meals to
children in need. The defendants exploited the Covid-19 pandemic to obtain,
misappropriate, and launder tens of millions of dollars in program funds that were
intended as reimbursements for the cost of serving meals and food to children. In all,
the defendants fraudulently misappropriated more than $40 million in Federal Child
Nutrition Program funds.
The Fraud Scheme
The Federal Child Nutrition Program is a federal program established to
ensure that children receive nutritious meals free of charge in low-income areas. At
the onset of the Covid-19 pandemic, the program requirements for the Federal Child
Nutrition Program were loosened, to help ensure that children continued to receive
meals during the unprecedented situation. The defendants exploited these changes,
and in the process falsely claimed to be serving meals to tens of thousands of children
each day throughout Minnesota. The defendants received tens of millions of dollars
in federal funds as reimbursements for purportedly serving these meals.
The Superseding Indictment
On September 13, 2022, a grand jury charged eight defendants with engaging
in this fraud scheme. United States v. Farah, et al., 22-cr-124 (NEB/TNL). The
superseding indictment charged all defendants with conspiracy to commit wire fraud
(Count 1), in violation of 18 U.S.C. §§ 371 and 1342. Individual defendants were also
charged with 11 counts of wire fraud, in violation of 18 U.S.C. § 1343, one count of
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conspiracy to commit federal programs bribery, in violation of 18 U.S.C. § 666, six
counts of federal programs bribery, in violation of 18 U.S.C. § 666, conspiracy to
commit money laundering, in violation of 18 U.S.C. § 1956(a), 22 counts of money
laundering, in violation of 18 U.S.C. § 1957, and one count of false statement in a
passport application, in violation of 18 U.S.C. § 1542.
The Discovery Productions
In light of the size of the case and volume of discovery, and on the motion of
the defendants, the Court appointed John C. Ellis, Jr. as coordinating discovery
attorney. Dkt. #172. The coordinating discovery attorney was appointed to manage
and distribute discovery to defendants and provide training and support services to
the defense teams as a group and individually. Id. at 2-3.
The government made its initial discovery productions to Mr. Ellis as well as
the defendants who were not directly partaking in the services of the coordinating
discovery attorney in two waves, first on December 6, 2022 and again on April 28,
2023.
The government’s productions far exceed the requirements of Rule 16. The
government has produced to defense counsel essentially everything it has collected
during the case, including reports of all witness interviews, transcripts of all grand
jury testimony, and returns obtained from hundreds of grand jury subpoenas. Each
type of evidence received a specific bates prefix to aid in identification. For example,
interview reports were produced with the bates prefix “Reports_.” The government
also produced detailed indexes of its discovery production to aid defense counsel in
their review of the discovery materials.
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To further aid in defense counsel’s review, Mr. Ellis uploaded the government’s
discovery into a commercial document review software program. All participating
defense counsel have access to the project. Mr. Ellis and his office are available on an
ongoing basis to answer any questions and assist in locating materials in the
discovery project.
II. DEFENDANTS’ DISCOVERY MOTIONS
In its initial scheduling order, the Court “proactively address[ed]” various
“boilerplate” discovery motions by directing the government to produce materials
already required under the federal rules without the need for the parties to file
motions on each of the issues. The defendants filed several other non-boilerplate
discovery motions.
Defendants’ Joint Motions for Discovery (Dkt. ##229, 231, 239)
Defendants move the court for an order requiring the government to provide
discovery pursuant to Rule 16 of the Federal Rules of Criminal Procedure. The
government does not oppose defendants’ motions insofar as they comport with the
requirements of Rule 16(a)(1). On December 6, 2022, the government made its initial
discovery production to the defendant. On April 28, 2023, the government made a
second discovery production to the defense. Between these two productions, the
government disclosed all materials relevant to Rule 16(a)(1) in its possession,
custody, or control and has supplemented those disclosures with additional materials
subsequently acquired. The government is aware of its continuing duty to disclose
and will comply with that duty. The government, however, objects to any discovery
order that exceeds the requirements of Rule 16.
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Defendants’ Joint Motion for Disclosure of Brady Evidence (Dkt.
#230)
Defendants have moved for disclosure of exculpatory, favorable, and
impeaching information under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v.
United States, 405 U.S. 150 (1972). The government understands, has complied with,
and will continue to comply with, its Brady and Giglio obligations to produce
exculpatory and impeachment evidence to the defense. Each of the defendants list
multiple categories of documents and information that they claim constitute Brady
or Giglio materials. Any evidence in the government’s possession bearing on these
topics has already been disclosed. The prosecution has produced all materials it
received from the Minnesota Department of Education and other government
agencies. If any additional such evidence comes to the government’s attention, it will
be turned over promptly.
Defendants also seek an order requiring the government to obtain and search
the files of the several other state and federal agencies for exculpatory material,
including the Minnesota Department of Education (MDE), the Department of Justice
Covid-19 Fraud Enforcement Task Force, the Office of the Minnesota Attorney
General, the U.S. Department of Agriculture, and the U.S. Food and Nutrition
Service. They argue that these agencies are part of the “prosecution team” and
therefore the prosecution’s discovery obligations extend to materials possessed by
these agencies, regardless of whether the prosecution has possession of, or access to,
those materials. As explained below, while MDE and the Minnesota Attorney
General’s Office were the defendants in a civil lawsuit brought by Feeding Our
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Future, neither they nor the other named entities were part of the prosecution team
for the criminal case. Accordingly, defendants’ request should be denied.
The government’s disclosure obligations arise from several sources, including
the Federal Rules of Criminal Procedure, the Jencks Act (18 U.S.C. § 3500), Brady v.
Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).
Rule 16 of the Federal Rules of Criminal Procedure requires prosecutors to
disclose specific items including documents and data “within the government’s
possession, custody, or control” where:
(1) the item is material to preparing the defense;
(2) the government intends to use the item in its case-in-chief at trial; or
(3) the item was obtained from or belongs to the defendant.
Fed. R. Crim. P. 16(a)(1)(E).
Under Brady and its progeny, a prosecutor “has a duty to learn of any favorable
evidence known to others acting on the government’s behalf in the case, including the
police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995). This requirement extends not only
to materials possessed by the prosecutor but also to materials possessed by agents
and agencies involved in its investigation. However, “[t]his requirement is limited to
production of statements ‘possessed by the prosecutorial arm of the federal
government.’” United States v. Georgiou, 777 F.3d 125, 142 (3d Cir. 2015) (quoting
United States v. Merlino, 349 F.3d 144, 154 (3d Cir. 2003)). A prosecutor is not
required to “discover information not in its possession or of which it was not aware.”
United States v. Heppner, 519 F.3d 744, 750 (8th Cir. 2008); see also United States v.
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Jones, 34 F.3d 596, 599 (8th Cir. 1994) (“The government has no affirmative duty to
take action to discovery information which it does not possess.”).
A prosecutor is not obligated to search for material in the control of another
government agency unless that agency was so closely aligned with the prosecution
that it should be considered to be “part of the prosecution team” or “an arm of the
prosecutor.” See, e.g., United States v. Morgan, 302 F.R.D. 300, 304 (S.D.N.Y. 2014);
United States v. Naranjo, 634 F.3d 1198, 1212 (11th Cir. 2011) (“As with the Jencks
Act, Brady ‘applies only to information possessed by the prosecutor or anyone over
whom he has authority.’”); United States v. Chalmers, 410 F. Supp. 2d 278, 289-90
(S.D.N.Y. 2006) (“[T]he prosecution must disclose documents material to the defense
(1) that it has actually reviewed, or (2) that are in the possession, custody, or control
of a government agency so closely aligned with the prosecution so as to be considered
part of the ‘prosecution team.’”); United States v. Nallani, No. 11-20365, 2015 WL
400903, *3 (E.D. Mich. Jan. 28, 2015) (defining the “government” under Rule 16 as
being limited to “the actual prosecution team, and the agency that participated in the
prosecution or investigation, and substantially aided or counseled the prosecution
team”).
In determining whether a regulatory agency is part of the prosecution team,
courts do not take a “monolithic view of government.” United States v. Connelly, No.
1:16-cr-00370 (CM), 2017 WL 945934, *4 (S.D.N.Y. March 2, 2017) (quoting United
States v. Finnerty, 411 F. Supp. 2d 428, 433 n.3 (S.D.N.Y. 2006)); United States v.
Avellino, 136 F.3d 249, 255 (2d Cir. 1998); United States v. Volpe, 42 F.Supp.2d 204,
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221 (E.D.N.Y. 1999) (“Courts have construed the term ‘government’ in this rule
narrowly to mean the prosecutors in the particular case or the governmental agencies
jointly involved in the prosecution of the defendant, and not the ‘government’ in
general.”). Rather, courts conduct a fact-specific analysis to determine whether the
level of involvement between the prosecutor and the other agency demonstrates that
the agency was a “part of the prosecution team.” United States v. Ferguson, 478 F.
Supp. 2d 220, 238 (D. Conn. 2007). “The key to this analysis . . . is the level of
involvement between the United States Attorney’s Office and the other agencies.”
Connolly, 2017 WL 945934 at *4 (quoting United States v. Upton, 856 F. Supp. 727,
749-50 (E.D.N.Y. 1994)). “The mere fact that the Government may have requested
and received documents from [another agency] in the course of its investigation does
not convert the investigation into a joint one.” Connolly, 2017 WL 945934 at *4
(quoting Finnerty, 411 F. Supp. 2d at 433); see also United States v. Ferguson, 478 F.
Supp. 2d 220, 238 (D. Conn. 2007) (same).
Here, the U.S. Attorney’s Office in Minneapolis conducted a grand jury
investigation into defendants’ fraud scheme. Agents from the FBI, the IRS-Criminal
Investigation Division, and the U.S. Postal Inspection Service were a part of the
investigatory team. All interview reports and other discovery evidence in possession
of these law enforcement agencies has been (or will be) produced during the
government’s ongoing discovery obligations.
The other state and federal agencies listed by the defendants were not involved
in the criminal investigation.
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The Department of Justice’s Covid-19 Fraud Enforcement Task Force was not
involved in the investigation. The Director of the Covid-19 Fraud Enforcement Task
Force participated in the press conference to raise awareness of the Department of
Justice’s ongoing efforts to combat and prosecuted Covid-19 fraud schemes. The Task
Force was not involved in the investigation, and the assigned AUSAs and agents who
conducted the investigation are not part of the Task Force.
The Minnesota Attorney General’s Office was not involved in the criminal
investigation. The Minnesota Attorney General’s Office did not criminally investigate
potential fraud by Feeding Our Future and other entities involved in the Federal
Child Nutrition Program. Rather, they represented MDE after it was sued by Feeding
Our Future in a civil lawsuit filed in state court.
In November 2020, Feeding Our Future filed the lawsuit after MDE raised
questions about the number of sites and amount of claims being submitted by Feeding
Our Future and sites under its sponsorship and denied Feeding Our Future site
applications. In the lawsuit, Feeding Our Future accused MDE of denying the site
applications due to racial animus in violation of the Minnesota Human Rights Act. In
a related indictment, the government alleged that this lawsuit was filed as part of a
fraudulent scheme. See United States v. Aimee Bock et al., 22 CR 223 (NEB/TNL),
Dkt. #1, at ¶¶33-34. During this litigation, MDE and the Attorney General’s Office
contacted the FBI about the potential fraud carried out by Feeding Our Future and
sites under its sponsorship.
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The Attorney General’s representation of MDE as a defendant in a civil lawsuit
does not render it part of the prosecution team because it was not part of the criminal
investigation. No prosecutors, agents, or investigators from the Minnesota Attorney
General’s Office participated in the investigation. They did not, for example, conduct
interviews or gather evidence as part of the criminal investigation. Nor did they have
access to, or knowledge of, the interview reports and other evidence obtained as part
of the federal grand jury investigation that led to the charges filed.
The fact that the Minnesota Attorney General issued a press release after the
indictments were unsealed does not make the Minnesota Attorney General or his
office part of the prosecution team. After the federal indictments were unsealed and
announced at a press conference at which he was not a participant, the Minnesota
Attorney General issued a press issue touting his office’s role in alerting FBI to
possible fraud involving Feeding Our Future. According to the release, “[t]he Attorney
General’s Office worked closely with the Minnesota Department of Education as they
provided suspicions of fraud and other evidence and information to the FBI, which
directly led to the federal investigation and indictments of Feeding Our Future and
its founder Aimee Bock.”1 These actions—referring a case to the FBI and later
providing information pursuant to a grand jury subpoena—did not make the Attorney
General’s Office part of the prosecution team. Indeed, the press release acknowledges
as much, stating only that the Attorney General’s Office and MDE “flagg[ed] the
1 See Office of Minnesota Attorney General press release dated September 26, 2022, available
at https://www.ag.state.mn.us/Office/Communications/2022/09/26_FeedingOurFuture.asp
(last accessed July 6, 2023).
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fraud and turn[ed] it over to the criminal investigative power of the federal
government.” Id. (emphasis added). This is no different than any case in which a
victim entity refers a case for potential investigation and later provides documents
pursuant to a grand jury subpoena.
Nor was MDE involved in the investigation or part of the prosecution team. An
MDE employee contacted the FBI in 2021 to report suspicions that sites under the
sponsorship of Feeding Our Future were submitting fraudulent federal child
nutrition program claims. In the wake of the referral, the FBI and the U.S. Attorney’s
Office opened a federal grand jury investigation. During that investigation, the
government subpoenaed MDE for records related to the fraud scheme. Those records
have been produced in discovery. The government also interviewed several MDE
employees during its investigation. Reports of those interviews have been produced
in discovery.
MDE employees were not part of the investigation or prosecution team. Indeed,
far from being part of the grand jury investigation, they were subjects of it. They did
not conduct interviews; they were the persons being interviewed. They did not gather
evidence; they produced it (pursuant to grand jury subpoenas). The materials that
the government obtained in response to those grand jury subpoenas has been
produced to the defendants in the criminal case. MDE, on the other hand, has never
seen or had access to these grand jury materials.
Neither the U.S. Department of Agriculture (USDA) nor its component Food
and Nutrition Service agency were involved in the investigation. As explained in the
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superseding indictment, the Food and Nutrition Service is an agency of the USDA
that administers the federal child nutrition programs. Dkt. #57 at 2. The Food and
Nutrition Service “administers the programs at the national and regional levels by
distributing federal funds to state governments.” Id. In other words, the USDA
provides the federal funds that support the federal child nutrition programs. While
the USDA has an Office of Inspector General, it was not involved in this investigation
in any way. They did not, for example, participate in interviews or meetings on the
case. They did not have access to, or knowledge or, the evidence obtained during the
investigation. Simply put, they played no role in the case. And any documents that
the agents involved in the case obtained from the USDA or the Food and Nutrition
Service during the investigation have been produced in discovery.
Because the USDA and FNS did not work together with the U.S. Attorney’s
Office, it was not part of the prosecution team in this case. Accordingly, while the
prosecution must produce—and has produced—everything it received from these
entities, it is not required to search through files of USDA or FNS offices around the
country looking for information or materials that it does not possess and to which it
does not have access. United States v. Morris, 80 F.3d 1151 (7th Cir. 1996) (holding
that the prosecutor’s office has no duty to learn of information possessed by other
government agencies that have no involvement in the investigation or prosecution at
issue). Indeed, such an exercise would be nearly impossible. According to its website,
the USDA “is made up of 29 agencies and offices with nearly 100,000 employees who
serve the American people at more than 4,500 locations across the country and
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abroad.” See https://www.usda.gov/our-agency (last accessed on July 6, 2023). The
USDA has an annual budget of approximately $200 billion. In 2022, more than $140
billion of that budget went to the FNS program. See “USDA FY 2022 Budget
Summary,” available at https://www.usda.gov/sites/default/files/documents/2022-
budget-summary.pdf (last accessed July 6, 2023).
During the criminal investigation, the USAO issued more than 700 grand jury
subpoenas, including subpoenas to MDE. While these documents have been produced
to the defendants, Rule 6(e) of the Federal Rules of Criminal Procedure prevented the
U.S. Attorney’s Office from providing these materials to (or even discussing them
with) MDE, the Minnesota Attorney General’s Office, or the other entities identified
by the defendants.
The prosecution also conducted more than 150 witness interviews during the
criminal investigation. No representatives from MDE, the Minnesota Attorney
General’s Office, USDA, FNS, or the other entities were present for any of these
interviews. These interviews were conducted without these entities’ presence,
involvement, or even knowledge (except for those interviews conducted of MDE
employees). See, e.g., United States v. Stein, No. 11-80205-CR, 2012 WL 12946757, *1
(S.D. Fla. Sept. 26, 2012) (holding that SEC was not part of the prosecution team
where SEC and DOJ only conducted 4 joint interviews); Connolly, 2017 WL 945934
at *7 (holding that federal agency was not part of prosecution team where agency
only participated in 13 of 34 interviews).
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Finally, several witnesses testified before the grand jury during the criminal
investigation. Again, in accordance with the grand jury secrecy rules in Rule 6(e) of
the Federal Rules of Criminal Procedure, the entities cited by the defendants were
not involved in that process, were not aware of that process, and had no access to the
resulting transcripts.
Because these agencies were not part of the criminal prosecution team,
defendants’ motion for an order requiring the government to obtain and produce
material in their possession should be denied.
Motion to Disclose and Make Informant Available for Interview
(Dkt. ##233, 234, 246)
Defendants have moved for an order requiring the government to disclose the
identity of any informants and cooperating individuals who were working with law
enforcement during the investigation and make them available for an interview with
the defense. The government did not utilize any confidential informants or
cooperating witnesses whose identities are unknown to the defendants as
contemplated by Rovario v. United States, 353 U.S. 53, 59 (1957). Accordingly, the
motions should be denied as moot.
Defendants’ Joint Motion for Discovery Relief (Dkt. #241)
While moving for an order requiring the government to obtain and produce
files of federal and state agencies that were not involved in the criminal investigation,
defendants simultaneously complain about the volume of the discovery produced in
the case. They argue that they are entitled to some form “discovery relief” in light of
the amount of discovery materials. Because the Court has already taken steps to
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address this issue, including through the appointment of a coordinating discovery
counsel, the defendants’ motion should be denied.
While the defendants’ fraud scheme was large and took time to unravel, it is
not difficult to comprehend. The defendants created shell companies. They enrolled
those shell companies in the federal child nutrition program. They then submitted
fake invoices falsely claiming that they were entitled to millions of dollars in
reimbursements for serving meals to thousands of children daily. The defendants’
scheme, and the government’s evidence of the scheme, was summarized in detailed
search warrant applications, many of which ran over 50 pages. See, e.g., 22-mj-008,
22-mj-009, 22-mj-010, 22-mj-011, 22-mj-84, 22-mj-087, 22-mj-118, 22-mj-491. These
search warrant applications have been produced in discovery. The nature of the
scheme is no secret to the defendants and has been extensively set forth by the
government.
More to the point, it was the defendants’ scheme. They devised the scheme.
They carried it out. The scheme is well known to the defendants because they
originated it. Similarly, the records that the government gathered and traced—the
volume of records the defendants now complain about—were largely records created
by the defendants in carrying out their fraud. The sheer volume of these records
reflects the nature of the defendants’ fraud scheme—broad in scope, financial in
nature, utilizing shell companies and fake documents to “paper over” the fraud. In
gathering and producing discovery, the government was tracking the fraud scheme
as devised by the defendants.
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The government produced the evidence it gathered in the course of discovery.
While the discovery is substantial, the bulk of discovery consists of voluminous bank
records from the companies the defendants used to carry out their scheme. Bank
records are different from interview reports insofar as counsel typically does not read
these records page by page but rather relies on financial experts to digest and
summarize these accounts. Discovery also includes more than 150 interview reports,
emails obtained pursuant to federal search warrants, and fraudulent claims
submitted by the defendants.
When the government produced these materials, the government also
produced a detailed discovery index to aid the defendants in digesting the discovery
documents. The government bates stamped the materials with prefixes to indicate
the source of the discovery materials. The government has made itself available for
individual conversations with defendants concerning their roles in the fraud scheme.
The volume of discovery and manner in which it was produced is similar to that in
other large cases in this district. See, e.g., United States v. Rahm et al., 20 CR 232
(JRT/BRT), United States v. Morris et al., 17 CR 107 (DWF/TNL), United States v.
Gilbertson et al., 17 CR 66 (PJS/HB).
To further assist defendants in their review of the discovery, the Court granted
defendant Shariff’s motion to appoint a coordinating discovery counsel. Dkt. #172.
The coordinating discovery counsel has received the government’s discovery and put
it into a searchable online discovery review platform. Among other things, he has
been charged with: (1) “[a]ssessing the needs of court-appointed defense counsel and
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further identifying any additional vendor support that may be appropriate—
including copying, scanning, forensic imaging, data processing, data hosting, trial
presentation, and other technology depending on the nature of the case”; (2)
“[i]dentifying any additional human resources that may be needed by court-appointed
defense counsel for the organization and substantive review of information; and (3)
“[p]roviding training services to court-appointed defense counsel as a group and
individually.” Dkt. #172. The government does not have access to the online discovery
review database set up by the coordinating discovery attorney, but it is the
government’s understanding that the online discovery project is well-organized,
easily accessible, and easily searchable.
Finally, it is unclear what defendants are requesting. At least some of the relief
that defense appears to request—for example, specifically identifying documents
directly relevant to charges—is largely contained in the discovery indexes and
detailed search warrant applications. As in every case, the government will turn over
witness and exhibit lists in advance of trial and in accordance with the district court’s
trial scheduling order. And, as in every case, if defendants have additional questions
about the nature of the discovery, or the government’s evidence, they are welcome to
contact the prosecutors with those questions about the discovery or the government’s
evidence. Insofar as defendants request novel relief that goes well beyond the rules,
the set practice in this district, and the considerable accommodations that have been
made by the government and the Court, their requests should be denied.
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III. DEFENDANTS’ MOTIONS FOR BILL OF PARTICULARS (DKT. ##255, 236)
Defendants Mukhtar Mohamed Shariff and Mahid Ibrahim have moved for a
bill of particulars. Because the superseding indictment adequately informs the
defendants of the charges against them, their motions should be denied.
The purpose of a bill of particulars is to inform a defendant of the nature of the
charges against him and to prevent or minimize the element of surprise at trial.
United States v. Beasley, 688 F.3d 523, 532 (8th Cir. 2012). A bill of particulars is not
intended to provide a defendant with evidentiary detail or discovery regarding the
defendant’s case. United States v. Hester, 917 F.2d 1083, 1084 (8th Cir. 1990). Rather,
it is required only when necessary to inform a defendant of the charges against him
with sufficient clarity to enable him to prepare his defense, to minimize the element
of surprise at trial, and to protect himself against a second prosecution for an
inadequately described offense. United States v. Wessels, 12 F. 3d 746, 750 (8th Cir.
1993).
Rule 7 requires a “plain, concise, and definite written statement of the
essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). An
indictment is “legally sufficient on its face if it contains all of the essential elements
of the offense charged, fairly informs the defendant of the charges against which he
must defend, and alleges sufficient information to allow a defendant to plead a
conviction or acquittal as a bar to subsequent prosecution.” Wessels, 12 F. 3d at 750
(citing United States v. Young, 618 F.2d 1281, 1286 (8th Cir. 1980)). An indictment is
sufficient “unless it is so defective that it cannot be said, by any reasonable
construction, to charge the offense” with which the defendant is charged. United
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States v. Sewell, 513 F.3d 820, 821 (8th Cir. 2008). As a general matter, an indictment
will be held sufficient if it tracks the language of the charging statute. Id.
The Superseding Indictment Contains a Detailed Description of
the Charged Crimes
At the outset, the superseding indictment in this case tracks the language of
the charging statutes. In doing so, the superseding indictment informs the defendants
of the nature of the charges against them and provides them the opportunity to
prepare a defense at trial. On that basis alone, the superseding indictment is legally
sufficient and the motions for a bill of particulars should be denied.
But the superseding indictment in this case goes far beyond what is legally
required. The superseding indictment charges defendants Shariff and Ibrahim with
wire fraud conspiracy, wire fraud, conspiracy to commit money laundering, and
money laundering. In addition, defendant Shariff is charged with conspiracy to
commit federal programs bribery and federal programs bribery. The 48-page
superseding indictment is lengthy and detailed. It alleges that the defendants
“devised and carried out a $40 million scheme to defraud the federal child nutrition
program,” and to have “obtained, misappropriated, and laundered millions of dollars
in program funds that were intended as reimbursements for the cost of serving meals
to children.” Dkt. #57 at ¶1.
The superseding indictment explains the specific roles both defendants played
in the charged crimes. The superseding indictment alleges that defendant Ibrahim
was the president and owner of ThinkTechAct Foundation (“ThinkTechAct”), a
Minnesota non-profit organization that also operated under the name Mind Foundry
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Learning Foundation (“Mind Foundry”). Id. At ¶21. The superseding indictment
further alleges that Ibrahim’s “ThinkTechAct and Mind Foundry created more than
two dozen Federal Child Nutrition Program sites throughout the State of Minnesota,”
which “operated under the sponsorship of both Sponsor A and Feeding Our Future.”
Id. At ¶22. As explained in the superseding indictment, “[a]t various times,
ThinkTechAct and Mind Foundry claimed to be serving meals to more than 25,000
children a day at their sites,” and [i]n all, between in or about February 2021 and
January 2022, ThinkTechAct received more than $18 million in Federal Child
Nutrition Program funds from Sponsor A and another $3.7 million from Feeding Our
Future.” Id.
In addition, the superseding indictment details that Ibrahim “also owned MIB
Holdings LLC, a shell company he used to receive and launder Federal Child
Nutrition Program funds from Empire Cuisine and Market, Empire Enterprises, and
other companies involved in the scheme to defraud.” Id. At ¶23. As explained in the
superseding indictment, “Ibrahim used MIB Holdings to receive and launder more
than $2 million in Federal Child Nutrition Program funds.” Id.
As for defendant Shariff, the superseding indictment alleges that he
“participated in the fraudulent scheme by, among other things, submitting
fraudulent meal count sheets, invoices, and rosters claiming that he and others were
serving meals to as many as 3,500 children a day at a site in Bloomington,
Minnesota.” Id. at ¶27. The superseding indictment alleges that “Shariff was also the
CEO of Afrique Hospitality Group LLC, a company that he created in January 2021
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and used to receive and launder Federal Child Nutrition Program funds.” Id. The
superseding indictment further explains that Shariff “was the chief executive officer
of Afrique Hospitality Group,” and that “Shariff and his co-conspirators used Afrique
Hospitality Group as a shell company to fraudulently obtain Federal Child Nutrition
Program funds.” Id. at ¶¶127-28.
The superseding indictment goes on to detail how the defendants and others
carried out the alleged crimes. According to the superseding indictment, “many of the
sites operating under the sponsorship of Sponsor A fraudulently inflated their claims
in order to appear that they were providing more food to children than was true.” Id.
at ¶17. As a result, all defendants in the superseding indictment collectively “claimed
to be serving meals to tens of thousands of children each day throughout the State of
Minnesota, for which they fraudulently claimed and received millions of dollars in
Federal Child Nutrition Program funds.” Id. The superseding indictment further
explains that conspirators “created and submitted fake meal count sheets and
attendance rosters purporting to list the names of children who received meals at
their sites,” but that “[i]n reality, the rosters and other paperwork were fake.” Id. at
¶39. Moreover, the “defendants also created fake invoices purporting to document the
purchase of food and other services from Empire Cuisine and Market and related
companies.” Id. According to the superseding indictment, there were “payments
purported to be for the purchase of food and meals to be served at the sites,” but “[i]n
reality, the defendants used Empire Cuisine and Market and other companies to
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divert Federal Child Nutrition Program funds and convert them for their own use.”
Id. at ¶41.
As it relates to Ibrahim, the superseding indictment specifically alleges that
“on or about February 22, 2021,” Ibrahim “sent an email to Aimee Bock and Hadith
Ahmed notifying them of ThinkTechAct’s desire to open two new Federal Child
Nutrition Program sites—one at the Lazy U mobile home park in Medford, a town in
southern Minnesota with a population of approximately 1,200, and one at the Vista
Villa mobile home park in Waseca, a town in southern Minnesota with a population
of approximately 10,000.” Id. at ¶72. According to the superseding indictment, the
same day “Aimee Bock submitted applications to open the Waseca and Medford sites
to MDE.” Id. at ¶73. The superseding indictment further alleges that, “[o]n or about
March 4, 2021,” Ibrahim “sent Aimee Bock and Hadith Ahmed meal count forms
claiming that Mind Foundry served lunch and a snack to 2,000 children a day, seven
days a week, at a site in Bloomington, Minnesota, during January 2021,” and Ibrahim
“further claimed that the Bloomington site served meals to 3,500 children a day,
seven days a week, in February 2021.” Id. at ¶74. According to the superseding
indictment, Ibrahim “also included a fake attendance roster purporting to list the
names of approximately 3,600 children who received meals at the Bloomington site,”
in that “[o]nly approximately 103 of the names on the list matched the names of
students who attended school in the Bloomington Public School District.” Id. at ¶75.
The superseding indictment further explains how Ibrahim used his shell
company, MIB Holdings LLC, “to receive and launder Federal Child Nutrition
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Program funds from Empire Cuisine and Market, Empire Enterprises, and other
companies involved in the scheme to defraud.” Id. at ¶106. The superseding
indictment alleges how Ibrahim engaged in hundreds of thousands of dollars in
transactions using Federal Child Nutrition Program funds obtained from the scheme
to defraud, including transferring $25,000 from MIB Holdings to a Coinbase account
and transferring $200,000 from the MIB Holdings account to 3 Pillar Homes, a
custom home builder in Columbus, Ohio. Id. at ¶¶107-113.
Concerning Shariff’s conduct, the superseding indictment alleges how he
repeatedly submitted claims for reimbursement, which included fake attendance
rosters and fraudulent meal count forms for sites in Bloomington, Waseca, and
Medford. Id. at ¶¶83-84. The superseding indictment further explains how Shariff
received fraudulent meal count forms and a fake attendance roster from at least one
other conspirator. Id. at ¶85.
The superseding indictment also details at length how certain individuals
engaged in a conspiracy to commit federal programs bribery as well as various acts
of federal programs bribery. Id. at p. 32-36. Specifically, the superseding indictment
alleges that “[f]rom at least in or about February 2021 to September 2022,” Shariff
and others “conspired with Hadith Yusuf Ahmed, Individual I.M., and others known
and unknown to the Grand Jury to commit federal programs bribery, that is, to
corruptly agree to give anything of value to any person, with intent to influence and
reward an agent of an organization, namely, Hadith Yusuf Ahmed and Individual
I.M., in connection with any business, transaction and series of transactions with
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Feeding Our Future involving anything of value of $5,000 or more, that is, in
exchange for sponsoring their fraudulent participation in the Federal Child Nutrition
Program, where Feeding Our Future received benefits in excess of $10,000 under
federal programs involving grants, contracts, subsidies, loan guarantees, insurance
and other forms of federal assistance in any one-year period.” Id. at ¶135.
The bribery conspiracy’s purpose, as explained in the superseding indictment,
was clear: “to enable individuals and entities participating in the fraudulent scheme
to obtain Federal Child Nutrition Program funds to pay bribes and kickbacks to a
Feeding Our Future employee, in exchange for Feeding Our Future’s sponsorship of
their fraudulent participation in the Federal Child Nutrition Program.” Id. at ¶136.
On top of these details, the superseding indictment further explains the manner and
means of this particular bribery conspiracy involving Shariff and others. For
instance, as alleged in the superseding indictment, “[e]mployees who worked at
Feeding Our Future and Sponsor A solicited and accepted bribes and kickbacks from
individuals involved in the Federal Child Nutrition Program in exchange for
sponsoring their fraudulent participation in the Federal Child Nutrition Program.”
Id. at ¶138. These specific allegations also include information about Shariff, in that
he “paid a $250,000 bribe/kickback to a Feeding Our Future employee, Individual
I.M., in exchange for her role in sponsoring and facilitating his and his co-conspirators
fraudulent participation in the Federal Child Nutrition Program.” Id. at ¶139. Also,
according to the allegations, “[o]n or about June 9, 2021,” Shariff “purchased a
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$250,000 cashier’s check from an Afrique Hospitality Group bank account payable to
Individual I.M., an employee of Feeding Our Future.” Id. at ¶¶144, 151.
It is no secret how the bribes and kickbacks functioned, as the superseding
indictment makes clear. Notably, according to the allegations, “[i]n exchange for
sponsoring the sites’ fraudulent participation in the program, Feeding Our Future
received nearly $18 million in Federal Child Nutrition Program funds as
administrative fees in 2021.” Id. at ¶14. As the superseding indictment further
alleges, “[b]ecause the amount of administrative fees it received was based on the
amount of federal funds received by sites under its sponsorship, Feeding Our Future
received tens of millions of dollars in administrative fees to which it was not entitled,
due to its sponsorship and facilitation of fraudulent sites participating in the
program.” Id. The superseding indictment explains that, [i]n addition to receiving
tens of millions of dollars in administrative fees, Feeding Our Future employees
solicited and received bribes and kickbacks from individuals and sites under the
sponsorship of Feeding Our Future.” Id. at ¶15. Thus, the superseding indictment
alleges that “[i]n effect, Feeding Our Future operated a ‘pay-to-play’ scheme in which
individuals seeking to operate fraudulent sites under the sponsorship of Feeding Our
Future had to kick back a portion of their fraudulent proceeds to Feeding Our Future
employees.” Id. The superseding indictment further explains that “[m]any of these
kickbacks were paid in cash or disguised as ‘consulting fees’ paid to shell companies
created by Feeding Our Future employees to conceal the true nature of the payments
and to make them appear legitimate.” Id.
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The detailed allegations in the superseding indictment more than satisfy the
notice pleading requirements in Fed. R. Crim. P. 7(c)(1) because the superseding
indictment contains a “plain, concise, and definite written statement of the essential
facts constituting the offense[s] charged.” Moreover, both defendants have been
provided voluminous discovery, including more than 150 interview reports and
dozens of lengthy and detailed search warrant affidavits that lay out the fraud
scheme, defendants’ roles in it, and probable cause to search the locations and email
accounts used in connection with the alleged crimes.
The Motions Should be Denied Because a Bill of Particulars is
Not a Discovery Device
As explained above, the Eighth Circuit has repeatedly held that “[a] bill of
particulars is not to be used for discovery purposes.” United States v. Hill, 589 F.2d
1344, 1352 (8th Cir. 1979). Yet discovery is exactly what the defendants seek. Their
motions propound interrogatory-style discovery requests under the guise of seeking
a bill of particulars.
Both defendants set forth a series of questions that they want the government
to answer about its expected evidence and proof at trial. Shariff, for example, asks
that the government be ordered to explain the exact nature of I.M.’s employment at
Feeding Our Future and other details about the evidence surrounding the $250,000
that Shariff paid to I.M. Dkt. #236 at 1. Similarly, Ibrahim asks for a detailed
summary of the evidence and propounds interrogatory-style requests about which
portions of funds were fraudulently obtained and which portions of meals were
fraudulent. Dkt. #255 at 1-2.
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These requests should be denied. A bill of particulars “is not a discovery device
to be used to require the government to provide a detailed disclosure of the evidence
that it will present at trial.” United States v. Huggans, 650 F.3d 1210, 1220 (8th Cir.
2011) (quoting United States v. Livingstone, 576 F.3d 881, 883 (8th Cir 2009)); see
also United States v. Thao, Crim. No. 21-108(2) (PAM/TNL), 2021 WL 5564521, at *7
(D. Minn. Nov. 29, 2021) (“To the extent Defendant seeks evidence the Government
intends to introduce at trial, ‘a Bill of Particulars is not intended to be a substitute
for discovery, nor is it designed to provide information which the Defendant might
regard as generally helpful, but which is not essential to his defense.’”); United States
v. Morales, 19 CR 281, 2020 WL 4043953, at *2 (D. Minn. March 20, 2020) (“The
‘whens wheres and with whoms of acts and participation in the charged conspiracy’
is not properly the function of a bill of particulars.”) (quoting United States v.
Pippenger, 552 F. Supp. 2d 990, 993 (D.S.D. 2008)); United States v. Afremov, Crim.
No. 06-196 (JRT/TNL), 2007 WL 2475972, at *2 (D. Minn. Aug. 27, 2007)
(“a bill of particulars is not intended to supplement discovery or to provide for the
acquisition of evidentiary detail”).
Courts in this district have routinely denied these sorts of requests. In United
States v. Belfrey, for example, the district court affirmed the magistrate judge’s denial
of the defendants’ motions for a bill of particulars in a health care and tax fraud case.
2016 WL 1301085, at *3 (D. Minn. Apr. 1, 2016). The defendants sought answers to
a laundry list of questions similar to those defendants have posed in this case:
(1) the manner and means by which each defendant failed to truthfully
account for withheld taxes; (2) the obligation for accounting and paying
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withheld taxes for entities in which a particular defendant held no
interest; (3) the means and manner in which each defendant violated 42
U.S.C. § 1320a-7(i)(3); (4) identification of the law which criminalizes
[defendant 1’s] concealment of his association with Model Health Care
or Integrated; (5) the manner and means of [Defendant’s 1’s]
concealment of his association with Model Health Care or Integrated;
(6) the manner and means by which [Defendant 2] cooperated in
[Defendant 1’s] concealment of his association with Model Health Care
or Integrated; (7) the manner and means by which [Defendant 2]
participated in naming the owner of Model; and (8) details regarding
[Defendant 1] being an alleged manager or owner of Integrated.
Id. at *1. The district court denied the defendants’ motions, stating, “With respect to
the health care fraud allegations, the Indictment identifies by name the businesses
through which Defendants allegedly obtained reimbursements from Medicaid in
violation of [Defendant 1’s] 2004 exclusion order.” Id. at *3. The district court found
that this was “enough information to adequately inform Defendants of the charges
against them to enable the preparation of a defense and avoid surprise at trial.” Id.
Ultimately, the defendants’ arguments fail because the purpose of a bill of
particulars is to inform the defendants of the nature of the charges against them, not
to provide a detailed preview of the government’s proof at trial. See Afremov, 2007
WL 24759722 at *2 (“In short, the prosecution’s production of documents does not
require a bill of particulars because the Superseding Indictment adequately informs
the defendants of the precise charges against them.”). Because the “[a]cquisition of
evidentiary detail is not the function of the bill of particulars,” United States v.
Matlock, 675 F.2d 981, 986 (8th Cir. 1982), these requests should be denied. See, e.g.,
United States v. Petters, Crim. No. 08-364 (RHK/AJB), 2009 WL 1076199, at *4 (D.
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Minn. March 26, 2009) (denying motion for bill of particulars seeking, among other
things, identification of co-conspirators, victims, and losses).
The superseding indictment in this case is more than sufficiently detailed to
allow defendants to prepare their defense, and it has been supplemented by
voluminous disclosures that have gone well beyond what the government is legally
obligated to provide. The superseding indictment not only contains language that
tracks the statutory elements of the offenses charged, but also provides extensive
details regarding the criminal conduct alleged to form the basis of those charges,
which more than adequately address the questions posed by the defendants’
respective motions.
For these reasons, the defendants’ motions for a bill of particulars should be
denied.
IV. DEFENDANTS’ MOTIONS TO CHANGE VENUE (DKT. #260)
Defendants Abdiaziz Shafii Farah, Mohamed Jama Ismail, Mahad Ibrahim,
Said Shafii Farah, Abdiwahab Maalim Aftin, and Mukhtar Mohamed Shariff have
moved for a change of venue.2 Significant cases with equal or far greater publicity
have been tried fairly and impartially here in Minnesota, including trials involving
2 Much of the defendants’ argument in support of their change of venue request hinges on
a claim that the U.S. Attorney’s Office “may have violated” Rule 6(e) of the Federal Rules of
Criminal Procedure. See Dkt. #261, at 6-11. Specifically, the defendants claim that during a
September 20, 2022 press conference announcing charges in this case, the U.S. Attorney’s
Office used two meal-count forms that, they suggest, appear to be grand jury material
protected under Rule 6(e). However, that claim was mistaken, and no 6(e) was used during
that event. Since the filing of this motion, the parties have met and conferred. Based on the
government’s representations that the two images referenced in the defendant’s change of
venue motion were derived from sources other than the grand jury, defendants do not allege
that a 6(e) violation occurred.
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the murder of George Floyd and the massive Petters fraud scheme. Nationally,
change of venue motions have been rejected in trials involving the Boston marathon
bombing, the 1993 World Trade Center bombing, and the Enron fraud scheme. The
pretrial publicity in this case—far less by orders of magnitude—has not so displaced
the judicial process such that these defendants cannot receive a fair trial. This Court
can and should rely on jury selection and instructions to ensure an appropriately
impartial jury in the District of Minnesota. The defendants’ motion should be denied.
There Is No Presumption of Prejudice Under the Facts of This
Case and Transfer Would Be Inappropriate.
The United States Constitution provides that “[t]he trial of all Crimes . . . shall
be held in the State where the said Crimes shall have been committed,” Art. III, § 2,
cl. 3, before a “jury of the State and district wherein the crime shall have been
committed,” amend. VI. It also secures to criminal defendants the right to trial by “an
impartial jury,” id., and to due process of law, amend. V. Taken together, these
provisions require a change of venue only if, “extraordinary local prejudice will
prevent a fair trial.” United States v. Skilling, 561 U.S. 358, 378 (2010).
Federal Rule of Criminal Procedure 21(a) provides for changes in venue under
that narrow exception:
Upon the defendant’s motion, the court must transfer the proceedings
against that defendant to another district if the court is satisfied that so
great a prejudice against the defendant exists in the transferring district
that the defendant cannot obtain a fair and impartial trial there.
A Rule 21(a) motion “is addressed to the sound discretion of the trial
court.” United States v. Drougas, 748 F.2d 8, 29 (1st Cir. 1984). “The defendant must
show ‘a reasonable likelihood that prejudicial news prior to trial will prevent a fair
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trial.’” United States v. Sabhnani, 599 F.3d 215, 232 (2d Cir. 2010) (citations omitted);
see also Wansley v. Slayton, 487 F.2d 90, 94 (4th Cir. 1973); Stafford v. Saffle, 34 F.3d
1557, 1566 (10th Cir. 1994). As the Supreme Court has explained, pretrial publicity
“does not necessarily produce prejudice, and juror impartiality, we have reiterated,
does not require ignorance.” Skilling, 561 U.S. at 381 (citing Irvin v. Dowd, 366 U.S.
717, 722 (1961) (Jurors are not required to be “totally ignorant of the facts and issues
involved”; “scarcely any of those best qualified to serve as jurors will not have formed
some impression or opinion as to the merits of the case.”); Reynolds v. United States,
98 U.S. 145, 155–156 (1879) (“[E]very case of public interest is almost, as a matter of
necessity, brought to the attention of all the intelligent people in the vicinity, and
scarcely any one can be found among those best fitted for jurors who has not read or
heard of it, and who has not some impression or some opinion in respect to its
merits.”)).
This Court should reject the defendants’ contention that pretrial prejudice will
prevent them from obtaining a fair trial in the District of Minnesota—a large and
diverse area with a population of over five and one-half million people. Their change-
of-venue request ignores a court’s ability to screen the jury pool to ensure a fair and
impartial jury. United States v. Peters, 791 F.2d 1270, 1295 (7th Cir. 1986) (“[I]t was
an appropriate exercise of the district court’s discretion and ordinarily preferable to
assess the impact of the pretrial publicity through an extensive voir dire of the
prospective jurors . . . .”). Indeed, the Supreme Court has held that it is proper to
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presume juror prejudice only where pretrial publicity has effectively displaced the
judicial process, which has not happened here. See Skilling, 561 U.S. at 381-82.
The proper path forward is for the Court to determine individual juror
prejudice during voir dire, and ensure that a fair and impartial jury is selected in this
case. See Peters, 791 F.3d at 1295. Given the strong public interest in prosecuting
crimes in the district where they occur, and the defendants’ inability to show that a
fair jury cannot be empaneled in a district the size of Minnesota, the defendant’s
motion for change of venue should be denied.
The Supreme Court has presumed jury prejudice on the basis of pretrial
publicity in only three cases, all of which were decided nearly 50 years ago on facts
markedly different than those here: Rideau v. Louisiana, 373 U.S. 723 (1963), Estes
v. Texas, 381 U.S. 532 (1965), and Sheppard v. Maxwell, 384 U.S. 333 (1966). Wilbert
Rideau was tried in a Louisiana parish of 150,000 people and convicted of robbery,
kidnaping, and murder. Rideau, 373 U.S. at 724. Police interrogated him in jail
following his arrest and filmed his confession. Id. On three separate occasions shortly
before trial, which took place less than two months after his arrest, a local television
station broadcast the film to audiences ranging from 24,000 to 53,000
individuals. Id. In reversing Rideau’s conviction, the Supreme Court explained that
the televised confession was “in a very real sense . . . Rideau’s trial — at which he
pleaded guilty to murder. Any subsequent court proceedings in a community so
pervasively exposed to such a spectacle could be but a hollow formality.” Id. at 726.
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The trial in Estes was “conducted in a circus atmosphere, due in large part to
the intrusions of the press, which was allowed to sit within the bar of the court and
to overrun it with television equipment.” Murphy v. Florida, 421 U.S. 794, 799 (1975).
And in Sheppard, “bedlam reigned at the courthouse during the trial and newsmen
took over practically the entire courtroom, hounding most of the participants in the
trial, especially Sheppard.” 384 U.S. at 355. Each of those cases, the Supreme Court
later wrote, involved “a state-court conviction obtained in a trial atmosphere that had
been utterly corrupted by press coverage.” Murphy, 421 U.S. at 798.
In contrast, the Supreme Court refused to presume prejudice in United States
v. Skilling, a prosecution involving the well-known and well-publicized Enron fraud.
Instead, the Court made clear that prejudice would be presumed only under the rare
circumstances that equal those of Rideau, Estes, and Sheppard, i.e., in cases where
“inflammatory pretrial publicity so permeated the community . . . that the publicity
in essence displaced the judicial process.” United States v. McVeigh, 153 F.3d 1166,
1181 (10th Cir. 1998). The Skilling Court explained:
First, we have emphasized in prior decisions the size and characteristics
of the community in which the crime occurred. In Rideau, for example,
we noted that the murder was committed in a parish of only 150,000
residents. Houston, in contrast, is the fourth most populous city in the
Nation: At the time of Skilling’s trial, more than 4.5 million individuals
eligible for jury duty resided in the Houston area. . . . Second, although
news stories about Skilling were not kind, they contained no confession
or other blatantly prejudicial information of the type readers or viewers
could not reasonably be expected to shut from sight. Rideau’s
dramatically staged admission of guilt, for instance, was likely
imprinted indelibly in the mind of anyone who watched it. . . . Third,
unlike cases in which trial swiftly followed a widely reported
crime, e.g., Rideau, 373 U.S., at 724, over four years elapsed between
Enron’s bankruptcy and Skilling’s trial. Although reporters covered
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Enron-related news throughout this period, the decibel level of media
attention diminished somewhat in the years following Enron’s collapse.
Id. at 382-83.
The circumstances of this case bear no resemblance to those of Rideau, Estes,
or Sheppard. The so-called Skilling factors of the (1) size and characteristics of the
community, (2) nature of the publicity, (3) time between the media attention and the
trial, and (4) whether the jury’s decision indicated bias well demonstrate that a
change of venue is not warranted here. The District of Minnesota’s population is,
according to the most recent census, 5.7 million. United States Census Bureau,
https://www.census.gov/quickfacts/MN. The jury pool is large, and there is no reason
to doubt that twelve impartial jurors can be drawn from over 5.7 million people.
Second, the press conference and articles to which the defendants point are not
of the sort that would leave indelible imprints that jurors cannot put to the side, such
as a televised confession to kidnapping and murder. See also United States v.
Haldeman, 559 F.2d 31, 61-62 (D.C. Cir. 1976) (holding that Watergate defendants
were not entitled to change of venue because “the pretrial publicity in this case,
although massive, was neither as inherently prejudicial nor as unforgettable as the
spectacle of Rideau’s dramatically staged and broadcast confession.”).
Third, as in Skilling, the “decibel level of media attention” has subsided
substantially. There is no reason to assume that past press coverage is indicative of
future media attention nor that jurors will not be able to judge the facts based on the
evidence at trial. Even significant, continuing, and prejudicial pretrial publicity can
dissipate to acceptable levels by the time of the trial. See, e.g., Skilling, 561 U.S. at
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383. Indeed, the defendants’ own exhibits demonstrate this fact. The articles they cite
in support of their motion were filed at or near the time of the unsealing of the search
warrants in March 2022 (Def.’s Exhs. E, F, G) or at the time charges were announced
in September 2022 (Def.’s Exhs H, I, J, K).
“Ordinarily, the key to determining the appropriateness of a change of venue
is a searching voir dire.” United States v. Jacques, No. 2:08-cr-117, 2011 WL 1706770,
at *4 (D. Vt. May 4, 2011) (internal quotation marks omitted). The defendants urge
the Court to ignore that avenue and, instead, to find prejudice and to change venue.
However, the presumption of prejudice only rarely applies and “attends only the
extreme case.” Skilling, 561 U.S. at 381. This is not such a case.
The defendants argue that, even if transfer to another venue is not mandatory,
this Court should nonetheless exercise its discretion to transfer this case. The
Supreme Court has repeatedly held that “pretrial publicity even pervasive, adverse
publicity does not inevitably lead to an unfair trial.” Neb. Press Ass’n v. Stuart, 427
U.S. 539, 554 (1976); accord Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 404 n.1
(1970) (Rehnquist, J., concurring) (“In fact, as both the Court and the dissent
recognize, the instances in which pretrial publicity alone, even pervasive and adverse
publicity, actually deprives a defendant of the ability to obtain a fair trial will be quite
rare.”) (collecting cases). Even in the notorious Sheppard case, where the defendant
was subjected to unimaginably prejudicial publicity, see Sheppard, 384 U.S. at 335-
49, 353-61, the Court held that, absent the “carnival atmosphere” that pervaded the
trial, the “months [of] virulent publicity about Sheppard and the murder” would not
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have been sufficient to create a presumption of prejudice where the Court identified
numerous measures that could have ensured a fair trial. Id. at 354-55.
Courts have repeatedly held that “the due process guarantee of trial by a fair
and impartial jury can be met even where . . . virtually all of the veniremen admit to
some knowledge of the defendant due to pretrial publicity.” United States v. Bliss,
735 F.2d 294, 297-98 (8th Cir. 1984). As the Supreme Court explained in Irvin v.
Dowd, “[i]t is not required . . . . that the jurors be totally ignorant of the facts and
issues involved.” 366 U.S. 717, 722 (1961). Indeed, “[i]n these days of swift,
widespread and diverse methods of communication, an important case can be
expected to arouse the interest of the public in the vicinity, and scarcely any of those
best qualified to serve as jurors will not have formed some impression or opinion as
to the merits of the case.” Id. at 722-23. The Court emphasized that “[t]his is
particularly true in criminal cases.” Id.
As a result, “the mere existence of any preconceived notion as to the guilt or
innocence of an accused, without more” is insufficient “to rebut the presumption of a
prospective juror’s impartiality would be to establish an impossible standard. It is
sufficient if the juror can lay aside his impression or opinion and render a verdict
based on the evidence presented in court.” Id.; accord Reynolds v. United States, 98
U.S. 145, 155-156 (1879) (“[E]very case of public interest is almost, as a matter of
necessity, brought to the attention of all the intelligent people in the vicinity, and
scarcely any one can be found among those best fitted for jurors who has not read or
heard of it, and who has not some impression or some opinion in respect to its
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merits.”); Drougas, 748 F.2d at 29 (“[T]his court has previously recognized that the
sixth amendment does not require that each juror's conscious mind be tabula rasa,
let alone his or her subconsciousness.”); Knapp v. Leonardo, 46 F.3d 170, 176 (2d Cir.
1995) (finding no manifest error in state court’s determination that jury was
impartial despite defense argument that 83% of veniremen were excused because
they had prejudged the case).
Defendants suggest that a fair and impartial trial is not possible in Minnesota
because, in their estimation, anecdotal “public comments on news stories”
demonstrate a need to transfer venue. Dkt. #262 at 15. Defendants’ argument is
entirely without merit. The only purported support for defendants’ contention are
copies of news articles (almost all of which appear to be authored outside of
Minnesota) and that, in any event, are followed by anonymous comments posted by
individuals whose state (or country) of residence is unknown. Dkt. #262-1, Exs. E, F,
G, I, J, and L; and Dkt. #262-2, Ex. M. Defendants’ own professed evidence—select
online chatter posted by individuals with no apparent residence in Minnesota—is
unavailing and does not demonstrate a need for a change of venue outside of
Minnesota.
Measures short of transfer will easily address the defendants’ concerns, as they
have time and again in cases involving significantly more pretrial publicity than this
case where change of venue motions were properly denied, including trials involving:
the murder of George Floyd (see State v. Chauvin, 989 N.W.2d 1, 20
(Minn. Ct. App. 2023) (“district court took numerous steps to verify that the
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seated jurors would be fair and impartial, thereby mitigating any potential
prejudice,” and “the district court took numerous steps to prevent the trial
from becoming ‘utterly corrupted by press coverage…’”); see also State v.
Kueng, 2021 WL 79794, at *3 (Minn. Ct. App. Jan. 11, 2021) (“we are not
persuaded at this point in the proceedings that the district court’s order [of
denying Keung’s motion to change venue] violates Kueng’s right to an
impartial jury or his rights to due process and fundamental fairness”);
the Petters fraud scheme (see United States v. Petters, 663 F.3d 375, 385-
86 (8th Cir. 2011) (“the size of the jury pool would not favor a presumption
of prejudice” and “only a small number of venire members had formed an
opinion concerning Petters’s guilt, and those individuals were excluded
from the jury pool”);
the Boston Marathon bombing (see In re Tsarnaev, 780 F.3d 14, 16, 21
(1st Cir. 2015) (per curiam) (Boston is a “large, diverse metropolitan area,
therefore, “residents obtain their news from a vast array of sources,” and
“the atmosphere [in Boston] is not to be characterized as disruptive to the
ability of the petitioner to be adjudged by a fair and impartial jury,” and
noting that “Knowledge [of high-profile case from heightened media
attention] however, does not equate to disqualifying prejudice”);
the 1993 World Trade Center bombing (see United States v. Yousef, 327
F.3d 56, 155 (2d Cir. 2003) (citation omitted) (the district court concluded
that “a thorough voir dire of potential jurors will be sufficient in detecting
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and eliminating any prospective jurors prejudiced by pretrial publicity,”
and as the Second Circuit observed, “Yousef did not renew the motion for a
change of venue after the voir dire—an indication that counsel was satisfied
that the voir dire resulted in a jury that had not been tainted by publicity”);
January 6th Capitol Insurrection (see, e.g., United States v. Ballenger,
___ F. Supp. 3d ___, 2022 WL16533872, at *3 (D.D.C. Oct. 28, 2022) (“A fair
trial is possible even if even if an event had a significant impact on a
community” and citing dismissed motions to change venue in other high-
profile cases); and
Enron accounting fraud (see Skilling v. United States, 561 U.S. 358, 382
(2010) (Larger cities are likely to have a far more diverse pool of jurors,
therefore, “the suggestion that 12 impartial individuals could not be
empaneled is hard to sustain,” and there was a “reduced likelihood of
prejudice where venire was drawn from a pool of over 600,000 individuals”).
With no arguments that satisfy the legal standard, the defendants turn to
allegations against the U.S. Attorney, claiming violations of certain rules and policies.
Their arguments provide no conceivable basis for changing venue. In fact, the U.S.
Attorney’s remarks and press release violated no rules, did not unfairly prejudice the
defendants, and were entirely consistent with the mission of the Department of
Justice.
Courts may consider the extent to which the government is responsible for
generating publicity in assessing a Rule 21 change-of-venue motion. United States v.
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Maldonado-Rivera, 922 F.2d 934, 967 (2d Cir. 1990); see also 2 Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure, Fed. Rules of Crim. Proc. § 343
(4th ed.). Contrary to the defendants’ allegations, the government did not do anything
improper.
As the defendants now concede, there was no Rule 6(e) violation. As a result,
the defendants’ contention that a supposed 6(e) violation counsels in favor of a
transfer to another venue is no more.
The defendants’ allegation with respect to the U.S. Attorney’s Office media
release and press conference meets a similar fate. There was nothing inappropriate
about the government’s statements or press release. The U.S. Attorney’s Office did
not make any public comments about this case until after the grand jury returned
indictments in September 2022, though the press had reported on the investigation
long before that time beginning when the search warrants were filed and unsealed
months earlier in March 2022. Dkt. #262-1, Exs. E (Mar. 10, 2022), F (Mar. 17, 2022),
G (Mar. 9, 2022).
That the government announced charges and used information in the public
domain in doing so, including in the indictments themselves, is unsurprising and
indeed appropriate in a case as important as this one.
The U.S. Attorney acted appropriately in announcing charges in a case of
extraordinary public importance concerning COVID-19 fund fraud. His statements
fit squarely within the role and duty of the U.S. Attorney, as the chief federal law
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enforcement officer in this District, to speak out and raise awareness of public fraud
and the actions law enforcement is taking to combat it.
Nothing in any of the sources cited by the defendants prohibits the government
from describing important charges to the public. To the contrary, the law recognizes
the appropriateness of transmitting such information. See 28 C.F.R. § 50.2(a)
(“[T]here are valid reasons for making available to the public information about the
administration of the law. The task of striking a fair balance between the protection
of individuals accused of crime or involved in civil proceedings with the Government
and public understandings of the problems of controlling crime and administering
government depends largely on the exercise of sound judgment by those responsible
for administering the law and by representatives of the press and other media.”).
The defendants suggest that the press conference statements were based on
opinions and arguments. Not so. The U.S. Attorney’s comments at the September 20,
2022, press conference were tethered throughout to the allegations contained in the
indictments. They were appropriately framed as allegations. The U.S. Attorney
limited his comments to the allegations in the indictment and explained that his
remarks were based upon the indictments’ allegations.3 Thus, at the end of the day,
3 See, e.g., Office of Public Affairs, U.S. Department of Justice, U.S. Attorney
Announces Federal Charges Against 47 Defendants in $250 Million Feeding Our
Future Fraud Scheme, YOUTUBE (Sept. 22, 2022),
https://www.youtube.com/watch?v=lXBVWVnXJrg at the following: 2:03-06 (“as
alleged in these indictments”); 2:19-21 (“as set forth in the indictments…”); 2:37-40
(“As set forth in the six indictments that I will describe”); 3:01-05 (“Each indictment
charges a group of defendants...”); 4:31-35 (“and the details, as alleged in these
indictments”); 7:09-11 (“as alleged in the indictments”); 7:23-26 (“The allegations
make clear that the defendants…”); 8:54-57 (“The indictments detail a number of
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the defendants complain not about the U.S. Attorney’s remarks, but about the
allegations contained in the indictments—their own alleged criminal conduct.
As to the press releases themselves, in keeping with its standard practice, the
U.S. Attorney’s Office stressed that the defendants are presumed innocent unless and
until proven guilty beyond a reasonable doubt in a court of law. See, e.g., Press
Release, Office of Public Affairs, U.S. Department of Justice, U.S. Attorney
Announces Federal Charges Against 47 Defendants in $250 Million Feeding Our
Future Fraud Scheme (Sept. 22, 2022), https://www.justice.gov/opa/pr/us-attorney-
announces-federal-charges-against-47-defendants-250-million-feeding-our-future.
these sites”); 9:48-50 (“As the indictments describe”); 10:23-25 (“some of which are set
forth in the indictments”); 11:27-30 (“As charged in the indictments”); 11:51-55 (“The
indictments explain how the defendants”); 14:56-15:01 (“now, not only were the
reimbursement forms, as alleged in the indictment, false…”); 17:13-16 (“Another
example, as alleged in these indictments”); 17:46-49 (“The indictments also explain
that the defendants regularly provided …”); 18:00-03 (“later in the scheme, as alleged
in the indictments”); 18:09-11 (“The indictments also detail …”); 18:50-53 (“and, as
the indictment alleges, this was false …”); 19:08-10 (“As set forth in the indictments”);
19:25-28 (“At times, at set forth in the indictments …”); 20:07-12 (“All of this, the
indictment alleges, was simply part of the scheme …”); 20:50-52 (“But, as the
indictments allege…”); 21:10-15 (“In the Safari indictment, the charges explain how
the defendants”); 21:44-46 (“The indictment alleges that a defendant...”); 22:02-04
(“According to the indictment”); 22:28-30 (“So, according to the indictment”); 23:04-
06 (“But the indictment charges that …”); 24:50-55 (“This is just one example of the
many in the indictment …”); 40:40-44 (“Well, I am going to stick with what’s in the
indictments for all of your questions”); 40:46-48 (“The indictment alleges that there
were concerns…”); 40:57-41:00 (“That, that’s what the indictment says when…”);
41:14-17 (“But everything about that is in the indictments”); 42:55-58 (“But, that’s
what I’m going to limit my answer to because the indictments don’t go further into
that”); 44:07-09 (“The indictments don’t list …”); 48:20-24 (“The indictments allege
that in some of the sites food was purchased …”); 48:39-40 (“The indictments allege”);
48:44-46 (“But, the indictments also make it clear…”); and 49:04-08 (“It’s in the
indictments. I’m going to refer to the indictments to answer that question”).
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In short, the challenged statements made by the U.S. Attorney and the U.S.
Attorney’s Office were fully compatible with the proper and fair administration of
justice.
The defendants have failed to demonstrate that pretrial publicity has displaced
the judicial process. This Court can and should rely on jury selection and instructions
to ensure an appropriately impartial jury. See Yousef, 327 F.3d at 155 (“[T]he key to
determining the appropriateness of a change of venue is a searching voir dire of the
members of the jury pool.”). The announcements by the U.S. Attorney’s Office were
appropriate and important given the scope and nature of the criminal conduct. And
the publicity in this case comes nowhere close to that in high-profile cases that have
been correctly and presumptively tried in the district where the criminal conduct
occurred. This Court should deny the defendants’ motion for change of venue.
V. DEFENDANTS’ MOTIONS TO SEVER (DKT. ##242, 243, 245, 248, 252, 253, 257,
259, 263)
Defendants Abdiaziz Farah, Mohamed Ismail, Mahad Ibrahim, Said Farah,
Abdiwahab Aftin, and Mukhtar Shariff have filed motions to sever their trials from
those of some or all of their co-defendants and sever certain counts of the superseding
indictment. The defendants’ arguments can be broadly broken down into three
categories. First, defendants argue that severance is required as a legal matter, due
to dangers of spillover evidence and unfair prejudice. Because defendants were all
charged with participating in the same fraudulent scheme, and because the
defendants have not met the high burden required to demonstrate that severance is
appropriate, their motion should be denied.
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Second, defendants argue that severance of the counts charging Federal
Programs Bribery is necessary to prevent the jury from using evidence presented on
the fraud and money laundering counts to “infer guilt” on the bribery counts.
Third, defendants argue that severance is required because a joint trial may
violate the defendants’ Sixth Amendment Right to confrontation. However, the
defendants have not pointed to any statements that they believe would create
confrontation issues pursuant to Bruton v. United States, nor is the government
aware of any, and for that reason, their motion should be denied.
For the reasons set forth below, the defendants should be tried jointly with all
co-defendants charged in the same indictment and conspiracy, and the single trial
should include all the counts in the superseding indictment.
The Defendants Should Be Tried Jointly with all Co-Defendants
Rule 8(b) of the Federal Rules of Criminal Procedure provides that two or more
defendants may be joined in a single indictment “if they are alleged to have
participated in the same act or transaction, or in the same series of acts or
transactions, constituting an offense or offenses.” Rule 8(b) is “construed liberally in
favor of joinder.” United States v. Darden, 70 F.3d 1507, 1526 (8th Cir. 1995). The
Supreme Court has repeatedly reminded federal courts that “[t]here is a preference
in the federal system for joint trials of defendants who are indicted together.” Zafiro
v. United States, 506 U.S. 534, 536 (1993); United States v. Bordeaux, 84 F.3d 1544,
1547 (8th Cir. 1996). As the Court has explained: “Joint trials play a vital role in the
criminal justice system. They promote efficiency and serve the interests of justice by
avoiding the scandal and inequity of inconsistent verdicts.” Zafiro, 506 U.S. at 537.
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Indeed, not every defendant joined must have participated in every offense charged
for joinder to be appropriate. United States v. Delpit, 94 F.3d 1134, 1143 (8th Cir.
1996) (citing United States v. Jones, 880 F.2d 55, 62-63 (8th Cir. 1989)).
Here, all the co-defendants are charged with participating in the same
fraudulent conspiracy. As described above, the superseding indictment alleges that
they worked together to carry out the scheme and participated in the same
conspiracy.
Notwithstanding the propriety of joinder under Rule 8(b), defendants also ask
the Court to sever their trials from those of their co-defendants pursuant to Rule 14
of the Federal Rules of Criminal Procedure. They argue that severance is appropriate
because they would be prejudiced by “spillover” evidence relating to other co-
defendants. This is not proper grounds for a severance.
The Eighth Circuit has repeatedly held that “[w]hen defendants are properly
joined, there is a strong presumption for their joint trial, as it gives the jury the best
perspective on all of the evidence and therefore increases the likelihood of a correct
outcome.” United States v. Lewis, 557 F.3d 601, 609 (8th Cir. 2009). To overcome this
presumption a defendant must show prejudice that is “severe or compelling.” United
States v. Crumley, 528 F.3d 1053, 1063 (8th Cir. 2008). “It is not enough that a
defendant thinks his chances for acquittal would be better in a separate trial.” Delpit,
94 F.3d at 1143 (citing Zafiro, 506 U.S. at 540). To demonstrate the type of severe or
compelling prejudice necessary to overcome the presumption in favor of joint trials, a
defendant must show that “(a) his defense is irreconcilable with that of a co-defendant
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or (b) the jury will be unable to compartmentalize the evidence as it relates to the
separate defendants.” United States v. Mickelson, 378 F.3d 810, 818 (8th Cir. 2004);
see also Lewis, 557 F.3d at 609. Such prejudice rarely rises to a level requiring
severance. United States v. Kirk, 528 F.3d 1102, 1107 (8th Cir. 2008). Instead, “[t]he
Supreme Court has made it clear that the risk of prejudice posed by joint trials is best
cured by careful and thorough jury instructions.” Delpit, 94 F.3d at 1144 (citing
Zafiro, 506 U.S. at 540-41).
The possibility that one defendant may attempt to point the finger at another
defendant at trial is not grounds for a severance. It is not uncommon for co-
defendants to blame each other at trial. The Supreme Court has held that “[m]utually
antagonistic defenses are not prejudicial per se.” United States v. Nichols, 416 F.3d
811, 816 (8th Cir. 2005) (quoting Zafiro, 506 U.S. at 538). The Eighth Circuit has
repeatedly held that such blame shifting and finger pointing is not grounds for a
severance. See, e.g., Zafiro, 506 U.S. at 540-41 (holding that co-defendants who were
accusing each other of the crime were not entitled to a severance); Nichols, 416 F.3d
at 817 (“Blame-shifting on the part of the defendants ‘is not a sufficient reason for a
severance.’”) (quoting United States v. Basile, 109 F.3d 1304, 1310 (8th Cir. 1997));
Lewis, 557 F.3d at 609 (“The mere fact that one defendant tries to shift blame to
another defendant does not mandate separate trials, as a codefendant frequently
attempts to ‘point the finger,’ to shift the blame, or to save himself at the expense of
the other.”).
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Defendants claim a severance is necessary because they will be prejudiced by
“spillover” evidence. This argument fails for two reasons. First, the defendants are
charged with conspiracy to commit wire fraud and are therefore responsible for the
actions their co-defendants took in furtherance of the scheme. The Eighth Circuit has
“said many times that it will be the rare case, if ever, where a district court should
sever the trial of alleged coconspirators.” United States v. Frazier, 280 F.3d 835, 844
(8th Cir. 2002). Second, the fact that the evidence may be stronger against some
defendants than others is not grounds for a severance. See, e.g., United States v.
Hively, 437 F.3d 752, 765 (8th Cir. 2006) (“Severance is never warranted simply
because the evidence against one defendant is more damaging than that against
another, even if the likelihood of the latter’s acquittal is thereby decreased.”);
Bordeaux, 84 F.3d at 1547 (“Disparity in the weight of the evidence between the
codefendants is not a sufficient reason for severance.”); United States v. Blum, 65 F.3d
1436, 1444 (8th Cir. 1995) (“A severance, however, is not required merely because the
evidence against one defendant is more damaging than the evidence against
another.”). This is so even where “evidence that is admissible only against some
defendants may be damaging to others.” Mickelson, 378 F.3d at 818 (citing Blum, 65
F.3d at 1444).
The concerns defendants raise about a joint trial are best dealt with through
“careful and thorough jury instructions.” Delpit, 94 F.3d at 1144 (citing Zafiro, 506
U.S. at 540-41). The Eighth Circuit pattern instructions cover many of the issues
raised in defendants’ various motion. See, e.g., 8th Circuit Model Instruction 3.08
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(“Keep in mind that you must give separate consideration to the evidence about each
individual defendant. Each defendant is to be treated separately . . .”); 2.14 (“You may
consider some of the evidence in this case only against defendant (name); you may
not consider that evidence against the other defendant[s].”). There is no reason to
believe a properly instructed jury will not be able to fairly consider the evidence
against each defendant, as well as each defendant’s proffered defenses.
All Counts in the Superseding Indictment Should Properly Be
Heard in the Same Trial.
The defendants argue that if the counts in the superseding indictment related
to Federal Programs Bribery are tried at the same time as the other counts alleging
conspiracy to commit fraud and money laundering, the defendants will suffer
prejudice. For the same reasons discussed above, all counts charged in the
superseding indictment should properly be heard in the same trial.
According to Federal Rule of Criminal Procedure 8, an indictment “may charge
a defendant in separate counts with 2 or more offenses if the offenses charged—
whether felonies or misdemeanors or both—are of the same or similar character, or
are based on the same act or transaction, or are connected with or constitute parts of
a common scheme or plan.” Fed. R. Crim. P. 8(a). Here, the Federal Programs Bribery
counts are properly joined under Rule 8(a). They concern conduct that is of the same
or similar character because they refer to the same fraud scheme and conduct that
was used to perpetuate the same fraud scheme.
Nevertheless, defendants argue that the Court should sever certain counts
pursuant to Federal Rule of Criminal Procedure 14(a) because there is “a real
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possibility that jurors will use evidence presented on the wire fraud and money
laundering counts to infer guilt” on the bribery counts.
A defendant seeking severance bears the burden of establishing that joining
counts in a single trial would be prejudicial. United States v. Humphreys, 982 F.2d
254, 259 (8th Cir. 1992). Prejudice exists where a “jury might use evidence of one
crime to infer guilt on the other or . . . the jury might cumulate the evidence to find
guilt on all crimes when it would not have found guilt if the crimes were considered
separately.” United States v. Davis, 103 F.3d 660, 676 (8th Cir. 1996). “On the other
hand, a defendant does not suffer any undue prejudice by a joint trial if the evidence
is such that one crime would be probative and admissible at the defendant’s separate
trial of the other crime.” Id. However, the mere possibility that a defendant could
have a “better chance of acquittal in separate trials” does not mean that joinder is
unfairly prejudicial. Zafiro, 506 U.S. at 539.
Here, evidence of the alleged fraud conspiracy is probative of the charged
bribery counts, and evidence of the alleged bribes is probative of the charged fraud
conspiracy. For the same reason that the defendants’ “spillover” arguments fail with
respect to their motion to sever defendants, that same argument fails as to their
request to sever the bribery counts.
Defendant Abdiaziz Farah separately moves that Count 43 of the Superseding
Indictment, charging Farah with making a false statement in an application for a
passport, should be severed for a separate trial from the remaining counts. The
passport fraud count is properly joined into a single indictment because the multiple
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offenses are connected with or constitute parts of a common scheme or plan. At trial
on the passport fraud count, the government will introduce evidence of the underlying
fraud scheme because it is relevant to Farah’s motive and intent to obtain a new
passport. There is overlapping witnesses and testimony pertaining to both the
passport fraud count and the remaining counts. The joinder rule permits very broad
joinder because of the efficiency in trying the defendant on related counts in the same
trial. See United States v. Midkiff, 614 F.3d 431, 439 (8th Cir. 2010) (“The rule is
broadly construed in favor of joinder to promote judicial efficiency.”).
Farah also contends that severance is required under Federal Rule of Criminal
Procedure 14(a) to prevent prejudice. But again, evidence of the fraud scheme is
relevant to the charged passport fraud count because it is evidence of Farah’s intent
to fraudulently obtain a passport after his original passport was seized during a
search of his residence and vehicles.
A Joint Trial Will Not Violate the Defendants’ Right to
Confrontation.
The defendants argue that a joint trial would violate the defendants’ Sixth
Amendment rights to confrontation if the government offered extrajudicial
statements of one defendant that implicate another defendant. The government is
not aware of any such statement and the defendants collectively do not point to any
particular statement that any defendant believes would implicate his rights under
Bruton v. United States. For this reason, the Court should deny the defendants’
motion as moot, with leave to refile should any defendant raise an issue implicating
any defendant’s rights pursuant to Bruton.
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VI. MOTION TO SUPPRESS DEFENDANT’S STATEMENT (DKT. #250)
Defendant Mohamed Ismail moves to suppress a non-custodial interview he
gave to law enforcement outside his home on January 20, 2022. Dkt. #250. Because
Ismail’s statement was non-custodial and voluntarily, his motion should be denied.
In January 2022, the government obtained a federal search warrant for
Ismail’s home in Minnesota, where he, in part, participated in the alleged fraudulent
scheme to misappropriate federal funds. Agents executed the search warrant on
January 20, 2022 at approximately 7:00 a.m., in a coordinated search of numerous
business, houses, and other locations throughout Minnesota.
Ismail was home when agents arrived to conduct the search. Upon arrival,
agents told Ismail that he was free to go and that he was not under arrest. Agents
further advised that the decision to speak with them was voluntary and completely
up to him, and that he could stop the interview or leave at any time.
Ismail agreed to speak with agents. Because agents were searching Ismail’s
house, and because the temperature was well below zero degrees, agents spoke with
Ismail in an unmarked law enforcement vehicle parked outside his house. Agents
spoke with Ismail for approximately two hours and recorded the interview. The
agents were dressed in casual street clothing and Ismail was calm and composed
throughout the interview. Agents left Ismail’s house several hours after beginning
the search. Ismail was not arrested that day.
Ismail’s Statement Was Non-Custodial and Voluntary.
Ismail’s motion should be denied because his statement was non-custodial and
voluntary. A statement that is the product of a non-custodial interrogation should be
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suppressed only if the statement was not made voluntarily. See United States v.
Clark, No. 15-cr-154 DWF/LIB, 2015 WL 4964665, at *3 (D. Minn. Aug. 19, 2015). “A
statement is involuntary when it was extracted by threats, violence, or express or
implied promises sufficient to overbear the defendant’s will and critically impair his
capacity for self-determination.” Simmons v. Bowersox, 235 F.3d 1124, 1132 (8th Cir.
2001). In making this determination, courts will inquire into the totality of the
circumstances in assessing the conduct of law enforcement officials and the suspect’s
capacity to resist any pressure. United States v. Meirovitz, 918 F.2d 1376, 1379 (8th
Cir. 1990).
Ismail’s statement was entirely voluntary. No coercive tactics were used. No
threats were made. He was not shouted at or physically threatened. He was told he
could end the interview (which took place in a vehicle outside his house due to the
extreme cold) and leave at any time. The tone of the interview was cordial throughout.
Ismail argues that the interview that took place outside his house in a law
enforcement vehicle during the search of his house was a non-Mirandized custodial
interrogation. It was not.
When a suspect is interrogated in a custodial setting, the police must advise
her of her right not to answer questions and to have an attorney present during
questioning. Miranda v. Arizona, 384 U.S. 436, 444 (1966). Failure to do so results in
a violation of the suspect’s Fifth Amendment rights and renders any statement
gained from the violation inadmissible in the government's case-in-chief. Id.
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The clearest example of custody is when a suspect is placed under formal
arrest. United States v. Ollie, 442 F.3d 1135, 1136 (8th Cir. 2006). Absent a formal
arrest, the Eighth Circuit employs a non-exclusive six-factor test in determining
whether a suspect was in custody:
(1) whether the suspect was informed at the time of questioning that the
questioning was voluntary, that the suspect was free to leave or request
the officers to do so, or that the suspect was not considered under arrest;
(2) whether the suspect possessed unrestrained freedom of movement
during questioning; (3) whether the suspect initiated contact with
authorities or voluntarily acquiesced to official requests to respond to
questions; (4) whether strong arm tactics or deceptive stratagems were
employed during questioning; (5) whether the atmosphere of the
questioning was police dominated; or, (6) whether the suspect was
placed under arrest at the termination of the questioning.
United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990). The analysis depends
upon a review of the totality of the circumstances, and the ultimate test is whether a
reasonable person in the suspect’s position would have felt free to end the interview.
United States v. Aldridge, 664 F.3d 705, 711 (8th Cir. 2011).
“The most obvious and effective means of demonstrating that a suspect has not
been taken into custody is for the police to inform the suspect that an arrest is not
being made and that the suspect may terminate the interview at will.” Griffin, 922
F.2d at 1349. When a person is questioned at their home—on their “own turf”—the
Eighth Circuit has observed repeatedly that the surroundings are “not indicative of
the type of inherently coercive setting that normally accompanies a custodial
interrogation.” United States v. Rorex, 737 F.2d 753, 756 (8th Cir. 1984); see United
States v. Czichray, 378 F.3d 822, 826 (8th Cir. 2004).
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Here, Ismail’s January 20, 2022 interview was non-custodial. The agents
repeatedly told Ismail that he was not under arrest and that he was free to leave or
terminate the interview at any point. Ismail voluntarily agreed to respond to the
agents’ questions. The agents did not use any strong-arm tactics or deceptive
strategies. The agents were wearing street clothing when they spoke with Ismail and
did not yell or use aggressive language. The atmosphere of the questioning was not
police dominated, but rather was friendly and professional. And Ismail was not placed
under arrest at the termination of the questioning. For these reasons, the interview
with Ismail was non-custodial.
Accordingly, no basis exists to suppress Ismail’s statement. The defendant’s
motion should be denied.
VII. CONCLUSION
The government respectfully requests that the Court dispose of defendants’
pretrial motions as suggested above.
Date: July 10, 2023 Respectfully submitted,
ANDREW M. LUGER
United States Attorney
BY: /s/ Harry M. Jacobs
JOSEPH H. THOMPSON
HARRY M. JACOBS
MATTHEW S. EBERT
CHELSEA A. WALCKER
Assistant U.S. Attorneys
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