Trial I · US v. Farah

Final Pretrial Conference

2024-04-08

Day Overview

On April 8, 2024, Judge Brasel held the final pretrial conference for US v. Farah et al. (8 defendants, Case No. 22-cr-124). No witnesses testified. The session covered roughly a dozen motions in limine, voir dire procedure, sequestration of witnesses, opening statement order, and trial logistics. Key outcomes: the court denied attorney-led voir dire; granted 18 defense peremptory strikes (shared) vs. 6 for the government; denied the motion to exclude school-enrollment-roster comparisons; denied the motion for a gag order and to take down the DOJ press conference; deferred the Gateway STEM Academy 404(b) ruling; allowed evidence of personal spending as intrinsic; and reserved the willful blindness instruction for the jury charge conference. defense counsel should pay close attention to the school-roster ruling and the court's open posture on the willful blindness instruction, as both will be central to the government's case and to jury perception of intent.

Government Strategy

This was not a trial day with witness testimony. The government appeared at the final pretrial conference to resist or narrow the defendants' motions in limine, defend its evidence theories, and lock in procedural ground rules favorable to its case. The government argued that evidence of lavish personal spending (Maldives honeymoon, Dubai jewelry, cash home purchases) was intrinsic and highly probative. It sought permission to seat three case agents at counsel table throughout trial. It signaled its intent to call MDE officials to describe red flags and to use school enrollment rosters to demonstrate that defendants' child-name rosters were fabricated. The government also framed COVID waivers as the mechanism by which shell companies flooded the program with fraudulent claims, not as a legitimate defense.

Strategic Notes for Defense Counsel

- The school-enrollment-roster comparison was not defeated and will be presented to the jury as 'incredibly compelling' evidence. Defense counsel must attack the regulatory foundation: for SFSP open sites, no individual roster was legally required at all — the comparison to a school district roster is legally irrelevant because the program rules did not require individual child identification. The government cannot prove fraud by showing names don't match a school roster when the program never required a school-district-specific roster in the first place. A regulatory expert or aggressive cross of the MDE witness on this point is essential. - The willful blindness instruction is still live. The DOJ press conference U.S. Attorney statement ('no one could have possibly believed you could make this sort of money') was flagged as having primed the jury pool specifically for this instruction. Defense counsel should preserve objection to it throughout trial and be prepared to litigate it at the jury instruction conference and on appeal. The court has not foreclosed it. - COVID pandemic waivers were mentioned only briefly by the government (Thompson, page 10) to frame the fraud — but no defense attorney invoked the waivers affirmatively in any motion in limine argument. This is a critical gap. The government's own framing (waivers enabled shell companies to flood the program) can be turned: the waivers also enabled non-congregate meal distribution at scale, which is why 'sites appeared empty' and 'kids weren't seen eating' is not evidence of fraud. Defense counsel should make this argument early and repeatedly. - Kara Lomen and Partners in Nutrition were mentioned at page 11 (Thompson) and page 38 (Thompson), but only in passing as a co-sponsor alongside Feeding Our Future. She did not appear and was not discussed as a witness. Defense counsel should track whether and when PIN enters the case — Lomen controlled claim submission, never charged, never FBI-interviewed, and holds potentially exculpatory information about what sponsors knew and did. Her absence from the witness list may be exploitable. - The government's three-agent sequestration request (Kary, Wilmer, Roase) is a structural fairness issue. If all three testify (Kary as lead agent, Wilmer as search warrant affiant, Roase as original case agent and forensic accountant), their having sat through all prior testimony undermines the independence of each. Defense counsel should revisit the court's ruling on this, press for strict cross-examination into what each heard before testifying, and preserve the issue for appeal if any agent's testimony appears shaped by hearing others.

Key Evidence

Type	Exhibit	Description	Page	Challenge Opportunity
Document	School Enrollment Rosters (no exhibit number assigned yet)	Government intends to compare defendants' submitted child-name rosters against public school district enrollment records to show the names on defendants' rosters are fabricated and match no real children in the relevant area.	[p. 29-33]	Defense correctly argued (Schleicher, ECF 399) that the food program had no geographic restriction — participants did not need to be enrolled in any particular school district. For SFSP open sites, no individual identification or roster was required at all under program rules; the government's roster-comparison methodology assumes a regulatory requirement that does not exist for open sites. Defense should challenge the foundational premise that any correspondence between the defendants' rosters and a school district roster was legally required, and should press whether the submitted rosters were required by program rules or were voluntarily submitted. The government's response that the names are 'simply fake' is assertion, not proof — and the methodology of comparing to one school district's enrollment is geographically and legally flawed.
Document	DOJ Press Conference Video (YouTube/DOJ website)	Video of DOJ press conference in which U.S. Attorney stated no one involved could have 'possibly believed' they could make this kind of money, shown to be accessible on DOJ's YouTube channel and website.	[p. 23-29]	Court denied the takedown request. However, if any juror accessed this video during trial, it provides grounds for mistrial or curative instruction. Defense counsel should move to question jurors about it specifically during voir dire and preserve the issue for appeal if the willful blindness instruction is given.
Financial Record	Personal Spending Evidence (no exhibit number assigned yet)	Evidence of defendants' personal expenditures including: Maldives honeymoon (ocean-villa accommodations), $30,000 at a Dubai jewelry store, $2 million cash home purchases, Timberwolves tickets ($4,500), PayMeToDoYourHomework.com ($12,000 for college coursework).	[p. 40-45]	Defense argued (Sapone) defendants were entitled to make a profit, and the relative amounts are modest. The court agreed not to allow mini-trials into whether the spending was legal. PayMeToDoYourHomework.com ruling was reserved — its admission would be highly prejudicial as propensity evidence of dishonesty. Defense counsel should renew the 403 objection on that specific item at trial and seek a limiting instruction on all spending evidence.
Document	404(b) Notice — Gateway STEM Academy transfers	Government 404(b) notice alleging Abdiaziz Farah transferred approximately $117,000 from Gateway STEM Academy to A&E Logistics (controlled by Shariff and Ibrahim) and approximately $175,000 to Mind Foundry Learning (Ibrahim's entity), between October 2021 and January 2022.	[p. 34-40]	Court reserved ruling pending possible stipulation or narrowing agreement. Government signaled it might not dwell on Gateway STEM Academy at all. Defense should press for complete exclusion or at minimum a limiting instruction. The government's back-and-forth — first noticing it as 404(b), then characterizing it as intrinsic, then offering to minimize it — reflects uncertainty that defense should exploit. If admitted, Defense counsel should request a specific limiting instruction and explore whether the school's accounting practices and oversight had independent explanations for the transfers.

Legal Rulings & Objections

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Motion ECF 388 (exclude lay opinion on knowledge/intent) — RESERVED for specific trial objections. Court declined to issue advance order but signaled cautionary instructions may issue if overbroad state-of-mind testimony occurs. — Government witnesses including cooperators (Hadith Ahmed, Julius Scarver) and MDE officials may still testify broadly about fraud being 'common knowledge.' Defense must object in real time and request cautionary instructions. The ruling does not foreclose these objections — it just defers them. Critically, MDE official testimony that 'anyone involved must have known it was fraud' was NOT precluded. Defense counsel should be prepared with specific objections under FRE 602 and 701. [p. 8-13]

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Motion ECF 389 (require specificity as to defendants) — Court denied labeling/marking exhibits by specific defendant names. Other objections reserved for trial. — Exhibits connecting one defendant may be seen by the jury as implicating all. Defense counsel should consider using limiting instruction requests aggressively at trial when exhibits are offered that are specific to one co-defendant's conduct. [p. 13-14]

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Motion ECF 390 (restrict coconspirator statements) — Court will follow Bell framework, addressed during trial rather than pre-trial hearing, with coconspirator statement foundation to be built before statements come in. — Government must still establish the first two prongs of the coconspirator exception (conspiracy existed, each defendant was a member) before statements come in. Defense should track whether the foundation is actually laid before each coconspirator statement is offered and object when it is not. This is a significant recurring objection opportunity throughout trial. [p. 14-17]

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Motion ECF 391 (restrict use of legal conclusion terms like 'fraud') — RESERVED for trial objections. Court noted cautionary instruction could cure such testimony. — Government witnesses — particularly MDE officials — are likely to use the word 'fraud' repeatedly in lay testimony. Defense counsel should press for cautionary instructions each time and preserve objections under FRE 701. [p. 17]

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Motion ECF 392 (exclude undisclosed expert testimony / Rule 701) — RESERVED. Court asked for discussion outside jury presence if Jencks material sharpens the issue. Government represented it does not intend to elicit expert-level opinion from lay witnesses. — This is a live and significant issue. MDE officials and FBI agents may offer regulatory interpretation opinions that cross into expert territory without proper disclosure. Defense counsel should treat this as a preserved objection basis throughout trial, especially for testimony about what program rules 'required.' The court specifically asked that this be raised outside the jury's presence before it arises — Defense counsel should proactively flag anticipated expert-like testimony. [p. 17-21]

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Motion ECF 397 (pretrial publicity — gag order, DOJ press conference takedown) — ALL DENIED. Attorney voir dire also denied. Court will use individual juror questioning from a prepared questionnaire. — The DOJ press conference stays up. No gag order. Defense should use voir dire questioning to probe juror exposure to that specific video and to newspaper coverage. The court's voir dire questionnaire will include a question on unconscious bias (amended from 'because' to 'if' regarding racial/ethnic backgrounds — defense win at page 56). [p. 22-29]

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Motion ECF 399 (exclude school enrollment roster comparison) — DENIED. Government may compare defendants' submitted rosters against school district enrollment records. — This is a significant loss for the defense. The government will present what it claims is a powerful visual demonstration that the submitted names are fabricated. Defense counsel must attack the methodology on cross: the food program had no geographic restriction; SFSP open sites required no individual identification; the comparison proves nothing about whether meals were served. A defense expert on program rules could be critical here. [p. 29-33]

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Willful blindness instruction — Court stated it will NOT include it in preliminary instructions. Whether to give it at all is deferred to the jury instruction conference. — The willful blindness instruction remains live. The DOJ press conference (U.S. Attorney statement that 'no one could have possibly believed' they could make that money) was specifically flagged by defense as having primed the jury pool for this instruction (Schleicher, page 24). Defense counsel should contest it vigorously at the instruction conference and on appeal if given. The government will almost certainly request it. [p. 33]

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Motion ECF 414 (exclude prior passport conviction for Ismail) — DENIED with 403 objection reserved for trial. — Ismail's prior passport fraud conviction may come in. defense counsel's client is not Ismail, but this illustrates the court's willingness to admit prior conduct on state-of-mind grounds. Relevant if defense counsel's client has any prior conduct the government might try to introduce. [p. 33-34]

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Gateway STEM Academy 404(b) / intrinsic evidence (ECF 431) — RESERVED. Court hopes parties will reach narrowing agreement. — The court has not foreclosed this evidence. Defense should press for complete exclusion or a strict limiting instruction. The government's own ambivalence (first 404(b), then intrinsic, then suggesting they might not mention Gateway at all) suggests this is a pressure point. [p. 34-40]

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Personal spending evidence (ECF 434) — DENIED. Spending admissible to show motive. Mini-trials into legality of spending (e.g., PayMeToDoYourHomework.com) reserved. — The Maldives honeymoon, Dubai jewelry, and cash real estate purchases will come in. PayMeToDoYourHomework.com is still contested — the court expressed concern about turning it into a mini-trial. Defense counsel should renew the 403 objection on the website specifically and seek a limiting instruction on all spending evidence. [p. 40-45]

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Government motions in limine ECF 404 (advice of counsel / mistake of law) — DENIED AS MOOT (defendants not raising those defenses). — No defendant is relying on advice of counsel or mistake of law. Defense counsel should evaluate whether this is the right strategic choice for his client — these defenses are now off the table for Trial 1 defendants. [p. 46]

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Witness sequestration (ECF 409) — Court took under advisement whether government may seat two FBI agents (Kary, Wilmer) plus forensic accountant (Pauline Roase) at counsel table, vs. the rule's presumptive limit of one. — If the court allows three government representatives — including FBI forensic accountant Pauline Roase — at counsel table throughout trial, all three will hear all testimony and can tailor their own testimony accordingly. Defense argument under FRE 615 (2023 amendment limits to one) was preserved. Defense counsel should revisit this ruling's outcome and object to any tailoring that becomes apparent. [p. 48-54]

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Peremptory strikes allocation — Defendants share 18 peremptory strikes; government gets 6. — With 8 defendants sharing 18 strikes, effective coordination among defense counsel on peremptory strategy is essential. Defense counsel should develop a coordinated voir dire strategy with co-counsel. [p. 27-28]

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Opening statement order — Defendants go in order 1-8 (Abdiaziz Farah through Hayat Nur), then government presumably last. Presumptive time: one hour or less per defendant. — Defense counsel should plan for a compressed opening if his client is near the end of the order. Jurors will have heard seven defense openings before his. [p. 59]

Prior Defense Performance

This was a pretrial conference, not a trial day, so 'defense performance' applies to the motions in limine advocacy rather than cross-examination. Overall the defense was well-prepared and well-coordinated. Notable strengths: Schleicher's argument on the school-enrollment roster motion correctly identified the legal flaw (no geographic restriction on the program, no requirement to match school rosters) but lost — the court found cross-examination was the proper remedy. Birrell's Rule 701 flag on undisclosed expert testimony was well-positioned and preserved. Goetz's FRE 615 witness sequestration argument was technically strong and legally accurate post-2023 amendment. The unconscious bias voir dire question amendment was a small but real win (changing 'because' to 'if'). Key missed opportunities or weaknesses: (1) No one argued explicitly that for SFSP open sites, no individual-identification or roster requirement existed under actual USDA regulations — the argument was framed as geographic (kids don't have to come from the local school district), not regulatory (open sites don't require any roster at all). This was the stronger argument and was left on the table. (2) No one argued COVID waivers in the roster-comparison context — that non-congregate meal distribution under pandemic waivers means the absence of verified individual children is fully consistent with legitimate operations. This was the most significant missed opportunity. (3) The Gateway STEM Academy 404(b) argument could have more aggressively pressed the government's strategic retreat (from '404(b)' to 'intrinsic' to 'we might not even mention it') into a complete exclusion. The reservation leaves the door open.