Trial I · US v. Farah

Vol V

2024-04-29

Day Overview

Volume V is the first day of trial, containing the court's preliminary jury instructions, the government's opening statement, opening statements from five of six defendants (Hayat Nur's counsel reserved), and the beginning of MDE administrator Emily Honer's direct examination which was cut off at adjournment. The government's opening (AUSA Ebert) was polished and emotionally resonant, emphasizing children being stolen from during a pandemic and previewing specific damaging evidence including text messages, absurd meal counts, fake rosters, and lavish spending. Defense openings collectively advanced four primary theories: (1) pandemic waivers fundamentally changed program rules allowing non-congregate, bulk, parent-pickup meal distribution with no ID or attendance requirements (Birrell for A. Farah; Cotter for Ismail; Sapone for Nur; Garvis for Aftin); (2) the sponsor (particularly Partners in Nutrition/Kara Lomen) controlled the certification process and bears primary responsibility (Birrell); (3) the government cannot prove who inflated numbers or that numbers were in fact inflated given the open-site, no-ID structure (Schleicher for Said Farah); and (4) MDE and the program were awash in confusion, lack of clear guidance, and internal conflict, so any discrepancies from how MDE witnesses say things 'should have been done' is not fraud (Goetz for Shariff). Honer began testifying about CACFP and SFSP program structure but had not yet reached the pandemic period or the charged conduct before court adjourned. Defense counsel should pay close attention to: (a) the Rule 701 objection preserved by Birrell before Honer took the stand, which puts every regulatory opinion Honer gives in play for appeal; (b) Honer's characterizations in direct of 'congregate' requirements and 'unitized' meals, which must be scrutinized against COVID waivers; and (c) Goetz's opening foreshadowing that MDE witnesses are 'bitter' and engaged in 'blame shifting,' which anticipated what became the most important cross themes of the trial.

Government Strategy

Day one of trial. The government used its opening statement to establish a simple moral narrative: defendants exploited a pandemic food program meant for children to steal $40 million in taxpayer funds. AUSA Ebert framed the case around five tools of fraud — fake sites, fake records, fake children (rosters), bribes/kickbacks, and laundering of proceeds. The government previewed damaging text messages between defendants, absurd meal count numbers (Faribault example: claims exceeding town's total child population), fake invoices, fabricated rosters with nonsense names ('John Doe,' 'unique problem,' 'serious problem'), and lavish spending on luxury goods. The government also began Emily Honer's direct examination to establish the regulatory foundation of the CACFP and SFSP programs — laying the groundwork for testimony that the programs required congregate meals, unitized food, and that funds could not be used for profit. Critically, the government chose to begin Honer's testimony on the last 45 minutes of the day, ensuring the jury's last impression on day one was regulatory legitimacy rather than any defense narrative.

Strategic Notes for Defense Counsel

- THE CONGREGATE/UNITIZATION TRAP: The most dangerous regulatory testimony in this trial will come from Honer implying that physical presence of children and congregate eating were required throughout the charged period. The USDA non-congregate waiver and parent/guardian pickup waiver expressly suspended these requirements for 2020-2021. Every time Honer says 'children must eat at the site' or 'meals must be unitized ready-to-eat' without acknowledging the waivers, object and cross hard. The absence of children physically eating is entirely consistent with legitimate operations under these waivers. - KARA LOMEN IS THE MISSING DEFENDANT: Partners in Nutrition processed the majority of program money. Kara Lomen certified every claim from PIN-sponsored sites under penalty of law. She has never been charged, never been interviewed by the FBI per Birrell's opening. This is the single biggest structural weakness in the government's theory — the person who stood between MDE and the defendants, who controlled what was submitted, who received the money, is walking free. Defense counsel must develop this point aggressively: what did PIN/Lomen know, when did they know it, what did they tell defendants about program requirements, and why were they never charged? - RULE 701 OBJECTIONS ARE MANDATORY: Ian Birrell preserved the Rule 701/702 issue before Honer testified. Every regulatory characterization Honer gives — what congregate means, what unitization requires, what rosters were required for, what the nonprofit account rules mean — must be individually objected to. The First Circuit precedent (Vega) is on point and strong. Failure to object to any specific item waives that objection at the appellate level. - OPEN SITE vs. CLOSED ENROLLED: This distinction is the most important technical legal issue in the entire case. SFSP open sites do not require individual child rosters regardless of pandemic waivers. If the government's fraud theory depends on rosters being required at open sites, it is legally wrong. Honer (and any other government witnesses) must be forced to concede this distinction on cross. Defense counsel in this trial did not make this distinction sharply enough in openings. - THE FARIBAULT MATH PROBLEM IS DEFEATABLE: The government's most powerful graphic was the Faribault map — seven sites claiming 7,000 daily meal servings in a town of 4,000 school-age children. Schleicher noted in his opening that open sites could be used by anyone regardless of geography and that people could claim meals for multiple children in one visit. These are both true and must be supported with regulatory evidence. But Defense counsel must also be prepared to address this argument head-on with expert testimony about actual food purchasing and distribution volume, and with evidence that open-site claims are legitimately aggregated from a wide geographic area.

Witnesses

Emily Honer

Director of Nutrition Program Services at Minnesota Department of Education (MDE); supervisor responsible for CACFP and SFSP claims, financial reviews, and program administration; called to establish regulatory framework and government's fraud theory.

MDE Government

Direct Examination

Honer provided background on the USDA child nutrition programs administered by MDE — the National School Lunch Program, CACFP (Child and Adult Care Food Program), and SFSP (Summer Food Service Program). She described the site-sponsor reimbursement model, meal component requirements (five components: fruit, vegetable, grain, meat/alternative, dairy), the 'unitized' meal concept, and the congregate-eating requirement for both CACFP At-Risk and SFSP programs pre-COVID. Her direct was cut off at adjournment after covering only the pre-COVID program structure; she had not yet reached the pandemic period, waivers, or any specific conduct by the defendants.

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Honer testified that in both CACFP At-Risk and Summer Food Service Program, 'the meals must be eaten in a congregate setting, meaning that the children must eat those meals together' and that children had to 'come to the school site to receive their meal and eat their meal with all of the other children.' — This characterizes pre-COVID congregate requirements as if they were the operative rules throughout the charged period. USDA issued nationwide waivers suspending the congregate requirement during the pandemic. If Honer fails to clearly distinguish pre-COVID rules from waiver-era rules, her testimony implies a physical presence requirement that did not exist in 2020-2021. This is the single most important regulatory inaccuracy to challenge on cross. [p. 1248-1252]

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Honer testified that 'a site can turn a profit' was 'absolutely not' the case and that reimbursements must be 'kept in a nonprofit food service account' and 'used for the benefit of the meal program.' — This is a contested legal characterization. The program enrolled for-profit vendors and the defense's entire theory is that the program was designed by the government to bring for-profit entrepreneurs into the space. Honer's assertion that profit is categorically prohibited conflicts with the program structure described by Birrell and other defense counsel. The objection by Cotter under Rule 701 was overruled, but this opinion is vulnerable — the court will take each objection as it comes per its ruling. [p. 1239-1240]

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Honer testified that meals 'must be unitized' in both CACFP and SFSP programs — meaning all five components in proper serving size, 'ready to eat' for the child. — The defense (Cotter, Sapone, Garvis) all described in openings that the program during COVID involved 'bulk goods' — rice, potatoes, onions, dry goods, milk — packaged in multi-day bags under meal pattern flexibility waivers. If Honer testifies that unitization was required throughout the charged period without acknowledging waivers, this must be challenged. USDA issued meal pattern flexibility waivers specifically allowing substitutions and relaxed meal component requirements. [p. 1251-1253]

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Before Honer testified, Ian Birrell raised a Rule 701 objection arguing that Honer's anticipated testimony about CACFP/SFSP regulations (including that funds cannot be used for construction or profit, that contracts must be bid, etc.) constitutes expert testimony requiring Rule 702 disclosure — citing U.S. v. Vega and a Tennessee case. The court ruled it would 'take each objection as it comes.' — This preserves a critical appellate issue. Every regulatory opinion Honer gives — characterizing what was required, what was prohibited, what constituted a badge of fraud — must be objected to individually under Rule 701/702. The Birrell team preserved the issue; defense counsel's team must continue to press it to build the record. The First Circuit precedent cited (Medicare manager testifying about Medicare regulations = expert testimony) is directly on point. [p. 1213-1220]

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Honer described attendance as required for CACFP At-Risk: 'the names of the children who are enrolled in that after-school program.' She also described meal counts as 'how many children received one full meal' and stated reimbursements are based on 'how many meals were actually served to children,' not meals prepared. — This framing conflates CACFP At-Risk (closed enrolled, attendance required) with SFSP open sites (no enrollment, no individual identification required). The charged sites were primarily SFSP open sites under pandemic waivers. Rosters were not required for open SFSP sites regardless of COVID waivers. This regulatory conflation, if unchallenged, is highly prejudicial. [p. 1237-1249]

Cross-Examination

No cross-examination occurred in this volume. Honer's direct examination was cut off at adjournment at 4:28 p.m. after covering only the pre-COVID program structure. Cross-examination begins in Volume VI.

Vulnerabilities Multiple significant regulatory accuracy problems in this partial direct examination: (1) CONGREGATE REQUIREMENT: Honer testified that meals must be eaten in congregate settings in both CACFP and SFSP programs. This was a pre-COVID requirement. USDA issued a nationwide non-congregate feeding waiver for 2020-2021 that expressly suspended this requirement. Her testimony characterizing congregate eating as required without noting the waiver is either uninformed or deliberately misleading. The absence of children physically eating at a site during an inspection is entirely consistent with legitimate operation under the non-congregate waiver. (2) UNITIZED MEALS: Honer testified meals must be unitized (all five components, proper serving size, ready to eat). USDA issued meal pattern flexibility waivers during the pandemic specifically allowing substitutions and modified meal components. The defense described bulk dry goods packaged in multi-day bags — which was permitted under USDA's meal pattern flexibility waiver. (3) NO-PROFIT RULE: Honer's blanket assertion that no profit can be made from these programs directly conflicts with the program design that intentionally enrolled for-profit vendors. The nonprofit food service account requirement applies to sponsors, not to for-profit vendors receiving payment for food delivery. (4) ATTENDANCE CONFLATION: Honer described attendance (individual child names/enrollment) as required for CACFP At-Risk programs. She had not yet reached SFSP open sites, but if she applies the same attendance/roster framework to SFSP open sites, that is flatly incorrect — open SFSP sites require only a meal count, not individual identification. (5) RULE 701 VULNERABILITY: Every regulatory characterization is subject to challenge as expert opinion testimony not properly disclosed under Rule 702. Ian Birrell preserved this objection before Honer took the stand. (5) AT-RISK ENROLLMENT — REGULATORY CORRECTION: Honer testified at p. [see Vol V testimony] that CACFP At-Risk afterschool required individual child enrollment and attendance records ("names of the children who are enrolled in that after-school program"). THIS IS FACTUALLY INCORRECT AS A MATTER OF FEDERAL REGULATION. CACFP At-risk afterschool is an open-site model — it serves any eligible child who appears at the site in an eligible area. No individual enrollment roster is required. This is structurally parallel to SFSP open sites. If Honer characterized At-risk as requiring individual enrollment records, that constitutes false testimony about the regulatory requirements. The prior defense analysis flagged this as a conflation issue but the correct framing is stronger: there was NO enrollment requirement for At-risk sites, period. Defense counsel must develop this with a CACFP regulatory expert.

For Defense Counsel On cross (Vol VI and beyond): (1) Establish the specific COVID waivers in effect for each program type and each time period at issue — force Honer to acknowledge that the non-congregate waiver, parent/guardian pickup waiver, meal pattern flexibility waiver, and extended operations waiver all materially changed what was required. (2) For each regulatory claim she makes, ask: 'Was that requirement in effect during the period at issue, or was it suspended by USDA waiver?' (3) Press the distinction between CACFP closed enrolled sites (attendance required) vs. SFSP open sites (no individual identification required). Get her to concede that for open SFSP sites, a meal count was sufficient. (4) Challenge the 'no profit' testimony — get her to admit that for-profit vendors were authorized participants and that the reimbursement amount per meal was set by USDA, not by actual cost. (5) Press the congregate-eating testimony — get her to admit the non-congregate waiver was in effect and that parents picking up multi-day meal bags off-site was explicitly permitted. (6) On the Rule 701 issue, object to every regulatory conclusion and make the record. (7) Explore whether MDE ever told sponsors, vendors or sites in writing that the congregate or unitization requirements still applied during the waiver period — if not, the lack of clear guidance is itself a defense. (ADDED) CACFP AT-RISK ENROLLMENT: Challenge Honer directly on whether At-risk afterschool required individual child enrollment. The correct regulatory position is that it did not — At-risk is an open-site model. Ask her to cite the specific CFR provision requiring enrollment for At-risk sites. She cannot, because no such requirement exists. This is potentially the most important regulatory correction in her entire testimony.

Key Evidence

Type	Exhibit	Description	Page	Challenge Opportunity
Document	Government Opening Slides (not yet admitted as exhibits)	Government's opening presentation included previews of: (1) text messages between defendants discussing 'golden ticket,' 'multiple millionaires,' meal count numbers, Bushra invoices, Kenya wire transfers; (2) photos of stacks of cash; (3) Faribault map showing six sites claiming to serve 7,000 daily meals in a town of ~4,000 school-age children; (4) a $250,000 check from Mukhtar Shariff; (5) large invoices from Empire Cuisine showing $1.6M, $2M+ single-day figures; (6) rosters with names 'John Doe,' 'Man Sincere,' 'Good Brown,' 'inactive,' 'unique problem,' 'serious problem'; (7) luxury purchases including Porsche, Tesla, Maldives villa, Ritz Carlton Miami, NBA courtside seats.	[p. 1074-1114]	Many of these items will be challenged on context. Defense openings previewed: (1) texts taken out of context; (2) the $1M cash photo was 'a joke' per Sapone; (3) Faribault comparison to school district enrollment is misleading because open sites could be used by anyone regardless of geography or district enrollment; (4) some invoices reflect legitimate large-scale food operations; (5) roster/attendance requirements may not have applied to open SFSP sites under COVID waivers.
Document	None assigned	Defense openings collectively previewed their own evidence: videos and photos of lines of cars at food distribution sites; Sysco purchase records (~$1M for Afrique alone); Bushra Wholesalers warehouse photos with pallets of rice visible in broad daylight; employee testimony (Idriss Omar); expert testimony (Prof. Paul Vaaler on East African business practices and Somali diaspora economic behavior); multiple USDA waivers.	[p. 1116-1213]	Government's position will be that some food was purchased as cover ('a pallet of rice here, gallons of milk there') to give the appearance of legitimacy while the core fraud was the inflated meal counts.

Legal Rulings & Objections

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Rule 701 objection by Ian Birrell (Birrell Law Firm, for Abdiaziz Farah) before Honer took the stand, arguing that anticipated testimony about CACFP/SFSP regulatory requirements — including what funds can be used for, how contracts must be procured, and 'research projects' comparing census data to billing amounts — constitutes expert testimony under Rule 702 requiring prior disclosure. Citing U.S. v. Vega (1st Cir. 2016), 813 F.3d 386, and FRE 701 commentary. Court's ruling: 'I will take each objection as it comes.' — The objection was preserved. This ruling means the defense must object to every individual piece of regulatory opinion testimony during Honer's direct — failing to object to any specific item waives that objection. This creates an opportunity for defense counsel: object systematically to each regulatory characterization (congregate requirement, unitization, profit prohibition, roster requirements) and build a full appellate record. The First Circuit precedent cited by Birrell — Medicare manager's regulatory opinions are expert testimony — is directly applicable to an MDE administrator's opinions about CACFP/SFSP regulations. [p. 1213-1220]

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Individual Rule 701 objection by Cotter (for Mohamed Ismail) during Honer's testimony on the no-profit rule: 'I move to strike that that is 701 opinion testimony.' Court overruled after asking Honer the source of her knowledge (her job). Honer said the information comes from 'USDA guidance' and MDE trainings. — This individual objection was overruled on the ground that Honer knows the regulatory rules through her job. However, the ruling does not foreclose future objections — the court said it would take each objection as it comes. The key counter-argument is that knowing regulations through one's job does not convert expert regulatory interpretation into lay fact testimony. Vega is still good law on this point. [p. 1239-1241]

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Objection by Goetz during government's opening statement: 'Objection, Your Honor, improper argument' when AUSA Ebert said 'when you hear from those within their own conspiracy, you will know the truth of what happened here.' Ruled: 'Overruled.' Goetz put the vouching objection on the record after trial break, citing U.S. v. Dorsey, 677 F.3d 944 (9th Cir. 2012). — This is a preserved vouching objection for appeal. Not directly useful for defense counsel in a future trial unless the same type of argument is made, but the Dorsey cite is worth keeping in the toolkit for summation objections. [p. 1115]

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The court overruled multiple 'leading' objections by Schleicher and Cotter during Honer's direct (pages 1232, 1237). Two were sustained. — Defense was willing to object during Honer's direct. This is important because some leading questions from the government were shaping Honer's answers — particularly questions about whether the after-school program was limited to formal educational/enrichment programs ('correct') and whether reimbursements were based on meals served, not prepared ('correct'). These structured confirmations set up the fraud theory. [p. 1232-1253]

Prior Defense Performance

Opening statements were generally competent to strong. Birrell's opening for Abdiaziz Farah was the most technically detailed and strategically sophisticated — he accurately explained the sponsor/vendor distinction, the CLiCS system, the requirements contract structure, the fact that vendors advanced their own money, and correctly framed Kara Lomen as the Executive Director of Partners in Nutrition (a private sponsor, not MDE). Critically, he noted that 95% of Abdi's business went through Partners in Nutrition — which places Kara Lomen's un-prosecuted conduct at the center of the defense. Goetz for Shariff did the most important strategic work by foreshadowing exactly what Honer would be vulnerable on: bias, blame-shifting, and MDE's own confusion during the pandemic — and by putting the jury on alert about hostile mosque-area neighbors. Sapone for Abdimajid Nur was effective on the waiver point and on attacking the cooperating witness (Hadith Ahmed). Schleicher for Said Farah did the best job on the legal standards (knowingly, beyond reasonable doubt, individual evaluation) and on the warehouse evidence gap. Cotter for Ismail was adequate but less distinctive. What was missed or could have been stronger: (1) No defense counsel explicitly told the jury that for SFSP open sites, there was NO roster requirement regardless of waivers — this is the single most important regulatory point and none of the openings stated it clearly enough. (2) Birrell correctly identified Kara Lomen but should have been more explicit that she was the decision-maker at PIN who certified every claim and has never been charged — the jury needed to hear that more forcefully. (3) The Rule 701 objection by Ian Birrell was good but the defense should have also moved in limine before trial to exclude Honer's regulatory opinions as expert testimony rather than waiting for a mid-trial objection. (4) None of the defense openings addressed the government's '10 percent on food' claim with specific counter-evidence — this should have been directly quantified in opening.