prosecution's charges and trial brief in minneapolis isis case

8/17/2019 Prosecution's charges and trial brief in Minneapolis ISIS case

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UNITED STATES DISTRICT COURTDISTRICT OF MINNESOTA

Criminal No.: 15-49 (MJD/FLN)

UNITED STATES OF AMERICA, ))

Plaintiff, ))

v. ) TRIAL BRIEF OF THE ) UNITED STATES

2. MOHAMED ABDIHAMID FARAH, )4. ABDIRAHMAN YASIN DAUD, and )7. GULED ALI OMAR, )

)Defendants. )

The United States of America, plaintiff, through its attorneys, Andrew M. Luger,

United States Attorney for the District of Minnesota, and Assistant United States

Attorneys John Docherty, Andrew R. Winter, and Julie E. Allyn, respectfully submits its

trial brief in this case. This trial brief is accompanied by three motions: one to limit

impeachment of two prosecution witnesses; another to allow, given the volume of

evidence in this case and the complexity of the issues, a second Special Agent of the

Federal Bureau of Investigation, Carson Green, to sit at counsel table during the trial; and

a third asking the Court to take judicial notice, pursuant to Fed. R. Evid. 201, of the fact

that the Islamic State in Iraq and the Levant, and al Shabaab, have been designated as

foreign terrorist organizations by the Secretary of State pursuant to Section 219 of the

Immigration and Nationality Act.

CASE 0:15-cr-00049-MJD-FLN Document 496 Filed 05/07/16 Page 1 of 25


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I. STATUS OF THE CASE

A. Jury trial of defendants Mohamed Abdihamid Farah (Defendant 2),

Abdirahman Yasin Daud (Defendant 4), and Guled Ali Omar (Defendant 7), is scheduled

to begin at nine a.m. on May 9, 2016 before the Honorable Michael J. Davis, Judge of the

United States District Court for the District of Minnesota.

B. The government expects to put in its case-in-chief in 11 or 12 trial days.

This estimate takes account of opening statements and closing arguments, but does not

include jury selection or any argument on motions that may be necessary, nor does it

allocate time for any defense case. The government’s best estimate of the total length of

trial is three weeks.

C. All three defendants are currently in custody.

D. Trial by jury has not been waived by any defendant.

E. The government anticipates calling 26 witnesses during its case-in-chief

and introducing approximately 340 exhibits.

F. The defendants have been charged in a second superseding indictment. To

avoid jury confusion, the government has prepared a copy of the second superseding

indictment that (a) is titled “Indictment” rather than “Second Superseding Indictment,”

(b) no longer characterizes as “defendants,” those individuals who have entered

negotiated pleas of guilty since the date the second superseding indictment was returned,

(c) removes charges applicable only to defendants who are no longer in the case, (d) re-

numbers the charges so that there are no gaps in the numerical sequence of charges, (e)

corrects the spelling of defendant Daud’s first name to “Abdirahman” from



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“Abdurahman,” and (f) removes the forfeiture allegations. A copy of that document,

which will be referred to as the “Indictment” from this point forwards in this Trial Brief,

is attached.

G. The Indictment contains ten counts.

II. THE CHARGES

The Indictment was returned by a grand jury of the District of Minnesota on

October 22, 2015. All three defendants are charged in Count One with conspiring to

commit murder outside the United States, in violation of Title 18, United States Code,

Section 956, and all three defendants are also charged in Count Two with conspiring to

provide material support and resources to the Islamic State of Iraq and the Levant

(“ISIL”), a designated foreign terrorist organization, in violation of Title 18, United

States Code, Section 2339B(a)(1). Defendant Guled Omar is charged, in Counts Three

and Four, with attempting to provide material support and resources to ISIL, in violation

of Title 18, United States Code, Section 2339B(a)(1). Defendant Mohamed Farah is

charged in Count Five with attempting to provide material support and resources to ISIL.

In Count Six, defendant Mohamed Farah is again charged with attempting to provide

material support and resources to ISIL, as is defendant Abdirahman Daud. In Count

Seven, defendant Mohamed Farah is charged with perjury, in violation of Title 18, United

States Code, Section 1621. In Count Eight defendant Abdirahman Daud is charged with

perjury, in violation of Title 18, United States Code, Section 1621. In Count Nine,

defendant Mohamed Farah is charged with false statements, in violation of Title 18,

United States Code, Section 1001. Finally, in Count Ten, defendant Guled Omar is



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charged with attempted financial aid fraud, in violation of Title 20, United States Code,

Section 1097(a).

The government will introduce evidence that the defendants agreed to travel to

Syria, where they would join ISIL, and would commit murder on behalf of ISIL. By

joining ISIL the defendants also provided material support and resources, in the form of

themselves, to ISIL, and this provision of material support was also pursuant to a

conspiratorial agreement among the defendants. Defendant Guled Omar sought to

finance his travel to Syria with student loan funds, and defendants Mohamed Farah and

Abdirahman Daud sought to keep the conspiracy hidden from the authorities by perjuring

themselves before the grand jury. Defendant Mohamed Farah also made material false

statements to Special Agents of the Federal Bureau of Investigation. The government’s

evidence will include, but not be limited to, tape-recorded conversations among the

defendants about their criminal plans, and about the killings committed by ISIL; the

videos watched by the defendants, which are replete with acts of, in the words of the

federal murder statute, 18 U.S.C. § 1111, “the unlawful killing of a human being with

malice aforethought;” and numerous documents, including bank records, travel records,

and telephone toll records.

III. THE STATUTES

A. Conspiracy to Commit Murder Outside the United States

All three defendants are charged in Count One of the Indictment with conspiring

inside the United States to commit murder outside the United States. Title 18, United

States Code, Section 956 provides in part:



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Whoever, within the jurisdiction of the United States, conspires with one ormore other persons, regardless of where such other person or persons arelocated, to commit at any place outside the United States an act that wouldconstitute the offense of murder, kidnapping, or maiming if committed inthe special maritime and territorial jurisdiction of the United States shall, ifany of the conspirators commits an act within the jurisdiction of the UnitedStates to effect any object of the conspiracy, be punished [for any term ofyears or for life, if the offense is conspiracy to murder or kidnap]

The Indictment charges only conspiracy to commit murder, and not conspiracy to

kidnap or maim.

B. Provision of Material Support and Resources to a Designated ForeignTerrorist Organization

All three defendants are charged in Count Two of the Indictment with Conspiring

to Provide Material Support or Resources to a Foreign Terrorist Organization (namely

ISIL). Defendant Guled Omar is charged with two counts of attempting to commit this

crime (Counts Three and Four), once for attempting, on May 24, 2014, to drive to

Mexico and then make his way to Syria from Mexico, and once for attempting to travel to

Syria via San Diego on November 6, 2014; defendant Mohamed Farah is also charged

with two counts of attempting to commit this crime (Counts Five and Six), once for

traveling by bus to New York City and then attempting to fly from New York to Turkey

from where he could travel onwards to Syria, in November of 2014, and once for

attempting to travel, in April of 2015, to Mexico and then on to Syria; and defendant

Abdirahman Daud is charged in one count with attempting to commit this crime (Count

Six, together with defendant Mohamed Farah), for attempting to travel to Syria via

Mexico, together with defendant Mohamed Farah, in April of 2015.

Title 18, United States Code, Section 2339B provides, in relevant part:



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(a) Whoever knowingly provides material support or resources to a foreignterrorist organization, or attempts or conspires to do so, shall be fined underthis title or imprisoned not more than 15 years, or both, and, if the death ofany person results, shall be imprisoned for any term of years or for life. Toviolate this paragraph, a person must have knowledge that the organizationis a designated terrorist organization . . . that the organization has engagedor engages in terrorist activity . . . or that the organization has engaged orengages in terrorism.

1. Defined Terms for 18 U.S.C. § 2339B

a. “Foreign Terrorist Organization” and the Government’s Request forJudicial Notice.

A “foreign terrorist organization” is an organization designated as such by the

Secretary of State, following consultation with the Attorney General and the Secretary of

the Treasury. The designation process is governed by Section 219 of the Immigration

and Naturalization Act, which is codified at 8 U.S.C. § 1189. The designations are made

official by being published in the Federal Register . The government’s exhibit list in this

case includes three such designations: (a) the Federal Register notice of October 15,

2004, designating al-Qaeda in Iraq as a Foreign Terrorist Organization (Government

Exhibit 27); (b) the Federal Register notice of May 15, 2014 adding the name Islamic

State in Iraq and the Levant to the October 15, 2004 designation (Government Exhibit

28); and (c) the Federal Register notice of March 18, 2008 designating al Shabaab as a

Foreign Terrorist Organization (Government Exhibit 29). Based on these published

designations, the government will seek judicial notice, pursuant to Fed. R. Evid. 201, that

the Islamic State in Iraq and the Levant has been a designated Foreign Terrorist

Organization since October 15, 2004, and that al Shabaab has been a designated Foreign

Terrorist Organization since March 18, 2008. The contents of the Federal Register are so



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readily ascertainable, either online or in a law library, that the fact of a designation’s

publication on a particular date “can be accurately and readily determined from sources

whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). Pursuant to

Fed. R. Evid. 201(f), the jury should be instructed that it may, but need not, accept the

noticed facts as conclusive.

b. “Terrorist Activity”

The term “terrorist activity” is defined as any activity which is unlawful under the

laws of the place it was committed (or which, if it had been committed in the United

States, would be unlawful under the laws of the United States or any particular State),

and which involves any of the following: (1) the seizing or detaining, and threatening to

kill, injure, or continue to detain another individual in order to compel a third person

(including a governmental organization) to do or abstain from doing any act as an explicit

or implicit condition for the release of the individual seized or detained; (2) an

assassination; (3) the use of any explosive, firearm, or other weapon or dangerous device

other than for mere personal monetary gain, with the intent to endanger, directly or

indirectly, the safety of one or more individuals or to cause substantial damage to

property; and (4) a threat, attempt, or conspiracy to do any of the above acts. 8 U.S.C.

§ 1189.

In this case, the government will ask its expert, Mr. Charles Lister, to testify about

the beheadings of James Foley (August 19, 2014), Steven Sotloff (September 2, 2014),

David Haines (September 13, 2014), and Alan Henning (October 3, 2014). All of these

beheadings took place before some members of the conspiracy charged in this case



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attempted to travel to Syria by taking a Greyhound bus to John F. Kennedy International

Airport (“JFK”) in New York and flying from there. The government will also ask Mr.

Lister about the beheading of Peter Kassig (November 16, 2014) which occurred after the

attempt to reach Syria via JFK but before the attempt to reach Syria by entering Mexico

from San Diego with fake passports. In each case, the government will ask Mr. Lister

about the identity of the person beheaded, the date of the beheading, the extensive

publicity the beheading received, and the statement from the man called “Jihadi John”

which accompanied the beheading. In those statements “Jihadi John” stated that the

reason for the beheading was the foreign policy of the United States or Britain;

introduced the next victim; and stated that the next victim would be killed if the

government concerned did not change its policy. By doing so, and by ISIL then

disseminating the video, ISIL, in the words of the statute defining “terrorist activity,”

“seized or detained” an individual and then threatened to kill that individual “in order to

compel a third person (including a governmental organization) to do or abstain from

doing any act as an explicit or implicit condition for the release of the individual seized or

detained.”

The government will also introduce evidence, through, among other means, the

videos that the defendants themselves watched, of “the use of any explosive, firearm, or

other weapon or dangerous device other than for mere personal monetary gain, with the

intent to endanger, directly or indirectly, the safety of one or more individuals or to cause

substantial damage to property.”



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c. “Terrorism”

The term “terrorism” means premeditated, politically-motivated violence

perpetrated against non-combatants targeted by sub-national groups or clandestine agents.

22 U.S.C. 2656f(d)(2). The government will introduce evidence that the defendants

knew that ISIL engaged in terrorism through the videos they watched in which numerous

non-combatants were murdered at ISIL’s hands.

C. Perjury

Defendant Mohamed Farah is charged in Count Seven, and defendant

Abdirahman Daud in Count Eight, with perjury. 18 U.S.C. § 1621 states that:

Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or thatany written testimony, declaration, deposition, or certificate by himsubscribed, is true, willfully and contrary to such states or subscribes anymaterial matter which he does not believe to be true . . . is guilty of perjury.

D. False Statement

Defendant Mohamed Farah is charged in Count Nine with making a

false statement to FBI Agents. 18 U.S.C. § 1001 states that:

[W]hoever, in any matter within the jurisdiction of the executive,legislative, or judicial branch of the Government of the United States,knowingly and willfully . . . makes any materially false, fictitious, orfraudulent statement or representation . . . [is guilty of a crime]

E. Financial Aid Fraud

Defendant Guled Omar is charged in Count Nine with attempted financial aid

fraud. Title 20, United States Code, Section 1097(a) states, in relevant part:



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Any person who knowingly and willfully embezzles, misapplies, steals,obtains by fraud, false statement, or forgery, or fails to refund any funds,assets, or property provided or insured under this subchapter and part C ofsubchapter I of chapter 34 of title 42 or attempts to so embezzle, misapply,steal, obtain by fraud, false statement or forgery, or fail to refund any funds,assets, or property . . . is guilty of a crime.

IV.ELEMENTS OF THE OFFENSES CHARGED

1. 18 U.S.C. § 956

In order for a defendant to be found guilty of conspiracy to murder outside the

United States as charged in Count One of the Indictment, the Government must prove

each of the following four elements beyond a reasonable doubt:

One, during the dates alleged in the Indictment, two or more persons reached an

agreement or came to an understanding to commit an act outside the United States that

would constitute the offense of murder if committed within the jurisdiction of the United

States;

Two , the defendant knowingly became a member of that conspiracy;

Three, the defendant became a member of the conspiracy while he was within the

jurisdiction of the United States; and

Four, at least one of the persons involved in the conspiracy performed, within the

United States, at least one overt act for the purpose of carrying out the conspiracy.

Federal law prohibits conspiring within the United States to commit an act at any

place outside the United States that would constitute the offense of murder if committed

in the jurisdiction of the United States. See 18 U.S.C. § 956; United States v. Khan , 309

F.Supp.2d 789, 821-822 (E.D. Va. 2004). “Murder” is defined in 18 U.S.C. § 1111(a) as



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“unlawful killing with malice aforethought.” The object of a Section 956 conspiracy can

also be a kidnapping or a maiming; however in this case the government has not alleged

that the defendants conspired to kidnap or maim. Evidence of kidnapping or maiming

may still be offered, however, as part of the government’s proof, under Counts Two

through Six, that ISIL engaged in “terrorist activity” or “terrorism.”

2. 18 U.S.C. § 2339B

Counts Two through Six of the Indictment allege either that all defendants

conspired to provide material support or resources to a designated foreign terrorist

organization, that being ISIL, or that one or more defendants attempted to provide

material support or resources to ISIL. To sustain the charge as alleged in Count Four, the

Government must prove, in addition to the conspiracy elements, four elements:

One, that the defendant knowingly provided material support or resources;

Two , that the defendant knew that the support or resources was going to ISIL;

Three , that ISIL had been designated as a Foreign Terrorist Organization by the

Secretary of State;

Four , that the defendant knew that one or more of the following conditions

existed:

a. That ISIL had been designated as a Foreign Terrorist Organization; or

b. That ISIL has engaged or engages in terrorist activity; or

c. That ISIL has engaged or engages in terrorism; and

Five, that one or more of the following three jurisdictional conditions is met:



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a. The defendant is an alien lawfully admitted for permanent residence in the

United States; or

b. The offense occurred in whole or in part within the United States; or

c. The offense occurred in or affected interstate or foreign commerce.

3. 18 U.S.C. § 1621

In order to sustain its burden of proving beyond a reasonable doubt the

commission of the crime of perjury, as alleged in Counts Seven and Eight of the

Indictment, the government must prove each of the following elements beyond a

reasonable doubt:

One , on or about the date alleged in the Indictment the defendant testified under

oath at Grand Jury proceedings investigating the allegations of material support to ISIL,

and when questioned,

Two , gave false testimony;

Three, at the time he testified, the defendant knew such testimony was false;

Four , the defendant voluntarily and intentionally gave such testimony; and

Five , the false testimony was material.

False testimony is “material” if the testimony is capable of influencing the Grand

Jury on the issue before it. The statement need not actually have influenced the decision

so long as it had the potential or capability of impeding, influencing, or dissuading the

Grand Jury from pursuing its investigation. Materiality is not dependent upon the

believability of the false statement.



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4. 18 U.S.C. § 1001

In order to sustain its burden of proving beyond a reasonable doubt the crime of

making false statements, in violation of Title 18, United States Code, Section 1001, the

government must prove each of the following elements beyond a reasonable doubt:

One , the defendant knowingly and willfully made a statement or representation, in

an international terrorism investigation, to agents of the Federal Bureau of Investigation

(“FBI”);

Two , that statement or representation was false or fraudulent;

Three , the statement or representation concerned a material fact to the FBI;

Four , the statement or representation was made about a matter within the

jurisdiction of the FBI. You may find this element has been satisfied if you find that the

FBI’s function includes the investigation of international terrorism; and

Five , the defendant knew it was untrue when he made the statements or

representations.

A statement is “false” if it was untrue when made. A statement is “fraudulent” if

the defendant made it with the intent to deceive.

The word “willfully” means that the defendant committed the act voluntarily and

purposely, and with knowledge that his conduct was, in a general sense, unlawful. That

is, the defendant must have acted with a bad purpose to disobey or disregard the law.

The government need not prove that the defendant was aware of the specific provision of

the law that he is charged with violating or any other specific provision.



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A “material fact” is a fact that would naturally influence or is capable of

influencing a decision of the agency. Whether a statement is “material” does not depend

on whether the agency was actually deceived or misled.

5. 20 U.S.C. § 1097(a)

In order to sustain its burden of proving the commission of the crime of attempted

financial aid fraud, in violation of Title 20, United States Code, Section 1097(a), the

government must prove each of the following four elements beyond a reasonable doubt:

One, the defendant misapplied, obtained by fraud, false statement or forgery, or

failed to refund, funds or assets or property;

Two, the funds or assets were provided under the federally guaranteed student aid

program and insured under subchapter IV of Chapter 28 of United States Code Title 20

and part C of subchapter I of chapter 34 of United States Code Title 42;

Three, the amount of the funds or assets exceeded $200.00; and

Four, the defendant did so knowingly and willfully.

Misapplication requires the defendant to have intentionally converted funds or

property to his own use or the use of a third party.

The word “willfully” means that the defendant committed the act voluntarily and

purposely, and with knowledge that his conduct was, in a general sense, unlawful. That

is, the defendant must have acted with a bad purpose to disobey or disregard the law.

The fact that the defendant may have intended to repay the funds at the time the

funds were taken is not a defense.



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Because defendant Guled Omar is not charged with the completed crime, but with

an attempt, the government will prove that defendant Guled Omar took a substantial step

towards the commission of the crime of financial aid fraud, and that the step was more

than mere preparation. Specifically, the government will prove that defendant Omar

withdrew his financial aid funds in a series of ten withdrawals from his Higher One debit

card (onto which his financial aid funds had been loaded), conducted (with the exception

of a weekend) on successive days, each withdrawal being in the amount of five hundred

dollars. The government will also prove that these withdrawals occurred at the same time

as defendant Omar was seeking to drive to Mexico and then travel onwards from Mexico

to Syria.

STATEMENT OF FACTS

The evidence will show that beginning in March of 2014 and continuing until

April of 2015, a group of individuals, including the defendants, met multiple times at

various locations and agreed to travel to Syria, to join, and fight for, ISIL (thereby

providing ISIL with material support in the form of personnel, the personnel being the

defendants themselves), and to commit the crime of murder on behalf of ISIL.

The three defendants on trial, in these meetings, helped each other with several

concrete steps in furtherance of their plan to travel to Syria, including obtaining passports

and funds with which to travel, advising each other of means by which to contact ISIL

once inside Turkey, and agreeing on methods to keep their plans secret from law

enforcement, including the use of secure messaging applications for their phones, the best

ways to answer questions the defendants expected to be asked by passport examiners,



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Cooperating defendant Abdullahi Yusuf will testify that he participated in

planning meetings in March, April, and May of 2014. He will testify that from the very

first planning meeting in which he participated, the group discussed three matters that

will recur throughout trial – traveling to Syria via Mexico, traveling to Syria by first

taking a Greyhound bus to an east coast city and then flying from there, and using student

financial aid funds to finance travel to Syria. Abdullahi Yusuf will testify that he

obtained assistance from other members of the conspiracy in the form of funds, advice,

and transportation (for example, to the passport office). From defendant Mohamed Farah

he obtained a ride to the passport office, and advice on the passport application process,

from defendant Abdirahman Daud he obtained contact information for ISIL members in

Turkey who could convey him from Istanbul to Syria, while it was defendant Guled

Omar who first brought him into the planning meetings and introduced him to people and

online resources that would help Abdullahi Yusuf achieve his goal of being a fighter for

ISIL.

Abdullahi Yusuf attempted to travel to Syria on May 28, 2014, a few days after

defendant Guled Omar made his own failed attempt. On that date Abdullahi Yusuf

attempted to fly out of MSP, on an itinerary that would take him from Minneapolis to

New York to Moscow to Istanbul. However, he was prevented from boarding his flight

by federal law enforcement officers, who had been tipped off by an alert passport clerk.

The following day, however, co-conspirator Abdi Nur was able to fly from Minneapolis

to Newark, New Jersey, then to Munich, Germany, then to Istanbul, Turkey, and from

there on into Syria, where, his social media posts indicate, he joined, and fought for,



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ISIL. A few days later, on June 6, 2014, co-conspirator Yusuf Jama, who had been

blocked on May 24 from traveling with Abdirahman Bashir and Guled Omar, took a

Greyhound bus to New York, and then flew from John F. Kennedy International Airport

(“JFK”) to Turkey.

November of 2014

The second major attempt occurred in the fall of 2014, when four men – Zachariah

Abdurahman, Hanad Musse, Hamza Ahmed, and defendant Mohamed Farah – followed

Yusuf Jama’s lead and took Greyhound buses to New York, while a fifth, defendant

Guled Omar, attempted to reach Mexico by first flying from MSP to San Diego.

At JFK the four men who had gone to New York on the bus were prevented from

boarding their flights. The evidence will show that three of these four conspirators had

opened bank accounts on the day they left Minneapolis on the bus, and that they then

made large cash deposits into those newly-opened accounts. With those cash deposits

buttressing their accounts, the JFK four, on the morning of their anticipated departure

from JFK, booked flights to various cities in southeastern Europe, either in Turkey, or

close to Turkey. Defendant Mohamed Farah was booked to Sofia, Bulgaria, with a

change of planes in Istanbul; co-conspirator Hamza Ahmed was booked to Madrid, with

a change of planes in Istanbul. Co-conspirator Hamza Ahmed and defendant Mohamed

Farah were booked on the same Turkish Airlines flight from New York to Istanbul. Co-

conspirators Hanad Musse and Zachariah Abdurahman were booked on the same

Aeroflot itinerary, going from JFK to Moscow, where they would connect to a flight to



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Athens. Defendant Mohamed Farah and co-conspirator Hanad Musse both made false

statements to New York-based FBI Agents when they were asked about their travel plans.

On November 6, 2014, defendant Guled Omar was denied boarding at MSP of his

flight to San Diego.

At the time of the attempted departure from JFK, the defendants were not charged

criminally. The defendants, and in several cases their families, were interviewed by FBI

Agents, and the defendants were formally notified, in writing, that they were the targets

of a federal criminal investigation. The defendants’ response was to try again.

April of 2015

The third attempt began in the mid-winter of 2014 -2015, when a group, including

the three defendants on trial, began meeting, yet again, to plot travel to Syria to fight for

ISIL. However, one of their number, Abdirahman Bashir, had become an FBI

confidential human source and was tape-recording the conversations in which he

participated. Segments totaling several hours of conversation will be played for the jury.

In those conversations, the defendants make it clear beyond a reasonable doubt that they

are continuing to conspire to travel to Syria to join, and fight for, ISIL. On April 17,

2015, two defendants, Mohamed Farah and Abdirahman Daud, left for San Diego in

Abdirahman Daud’s car. Also in the car was Abdirahman Bashir, the FBI’s Confidential

Human Source. On the morning of April 19, 2015 Abdirahman Daud and Mohamed

Farah were arrested in San Diego after purchasing fake Canadian passports from an

undercover employee of the FBI. Within minutes of the San Diego arrests, defendant

Guled Ali Omar was arrested at his home in Minneapolis.



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EVIDENTIARY AND LEGAL MATTERS

1. Business records and Fed. R. Evid. 902(11)

The prosecution will offer numerous business records into evidence during this

trial, such as airline records, bank records, passport records, and student loan records. All

of these are records “of a regularly conducted activity” within the meaning of Fed. R.

Evid. 803(6). All of these records have been disclosed in discovery, and those that will

be exhibits have been re-disclosed on the government’s disc of exhibits. Each business

record that will be offered into evidence is within the scope of a certification the

government obtained from the provider of the records, which certification meets the

requirements of Fed. R. Evid. 902(11). All such certifications have been disclosed to the

defense.

Because these records are accompanied by Fed. R. Evid. 902(11) certifications,

they do not require any further external evidence of authenticity, such as the testimony of

a records custodian. The government intends to introduce all such records into evidence

en masse at the outset of the trial.

2. Fed. R. Evid. 1006 summaries

Fed. R. Evid. 1006 allows a party to prepare a summary of voluminous writings to

prove the content of those writings. The government will use such summaries to show

telephone connectivity between telephone numbers assigned to members of the

conspiracy, and to distill itineraries from travel records. The government has satisfied

Fed. R. Evid. 1006’s requirements by making the originals available for examination or



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copying. The government has done this by disclosing in discovery all of the records that

underlie the summaries. The government has also disclosed the summaries themselves.

3. Impeachment of government witnesses

The government has disclosed to the defense three matters concerning its

witnesses which should not be allowed for impeachment of those witnesses on cross-

examination:

a. The government has disclosed that in October of 2014, cooperating defendant

Abdullahi Yusuf and the younger brother of cooperating co-conspirator

Abdirahman Bashir spray-painted the words “isis WILL REMAIN” and

“DaWLA” on a building in Minneapolis. Yusuf said that Abdirahman Bashir’s

younger brother swore Yusuf to secrecy about the incident because he and his

older brother sometimes went “tagging” (writing graffiti) at night.

b. The government has disclosed that on or about April 25, 2015, Abdullahi

Yusuf had his halfway house placement terminated, and was put back in jail,

following the discovery of a boxcutter under his bed at the halfway house

where he was residing.

c. The government has disclosed that on April 8, 2016 Abdirahman Bashir was

arrested by the Minneapolis Police following Abdirahman Bashir’s accidental

discharge of a firearm. No injuries resulted.

None of these incidents is proper impeachment. None of the incidents resulted in

a felony conviction, or indeed, any conviction at all, Fed. R. Evid. 609(a); and none of the

incidents is probative of truthfulness or dishonesty, Fed. R. Evid. 608(b). (Fed. R. Evid.



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608(a), which covers opinion or reputation evidence, simply has no applicability to any

of these three incidents).

Impeachment is permitted under Fed. R. Evid., 608(b) by a specific incident of

misconduct only if, in the discretion of the court, that specific incident of misconduct is

“probative of the character of [the witness] for truthfulness or untruthfulness.” “The

purpose of the rule is to avoid holding mini-trials on peripherally related or irrelevant

matters.” United States v. Martz , 964 F.2d 787, 789 (8 th Cir. 1992). Thus, the Eighth

Circuit has upheld district courts that ruled that evidence a police detective had taunted a

prisoner, United States v. Alston , 626 F.3d 397, 403 (8 th Cir. 2010), or that a witness had

been dishonorably discharged from the Marine Corps for failure to wear his uniform

properly, United States v. Hastings , 577 F. 2d 38, 41 (8 th Cir. 1978), or even that a

witness had committed (but not been convicted of) arson, United States v. Ngombwa ,

2016 WL 111434 *7 (8 th Cir. Jan. 10, 2016) was not proper impeachment. In each

situation, the courts held that the acts did not involve dishonesty, and were therefore not

the sort of prior bad act with which a witness could be impeached under Fed. R. Evid.

608(b).

4. The co-conspirator exception to the rule against hearsay

Fed. R. Evid. 801(d)(2) exempts from the rule against hearsay an opposing party’s

statement, and Fed. R. Evid. 801(d)(2)(E) includes within the scope of that exception a

statement of “the party’s coconspirator during and in the course of the conspiracy.” In

deciding the preliminary question of whether a conspiracy existed, the district court may

consider the proferred co-conspirator’s statement itself. Bourjaily v. United States , 483



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U.S. 171, 177 – 180 (1987). The Eighth Circuit has acknowledged that this is the holding

of Bourjaily . See, United States v. Ragland , 555 F. 3d 706, 713 (8 th Cir. 2009) (“[C]ourts

are permitted to consider the out-of-court statements in making [the] determination so

long as the statements themselves do not provide the sole evidence of the conspiracy.”).

Co-conspirators can include individuals not on trial (for example, individuals who

were charged but resolved their cases short of trial), or even individuals not charged in

the case at all. United States v. Lewis , 759 F. 2d 1316, 1339 (8 th Cir. 1985) (“Fed. R.

Evid. 801(d)(2)(E) applies to both unindicted and unnamed coconspirators.”)

5. Judicial Notice

Fed. R. Evid. 201(d) provides that “a court shall take judicial notice if requested

by a party and provided with the necessary information.” A judicially noticed fact must

be one not subject to reasonable dispute in that it is either (1) generally known within the

territorial jurisdiction of the trial court, or (2) capable of accurate and ready determination

by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid.

201(b). The prosecution will ask the court to take judicial notice of the facts that ISIL

has been continuously designated as a foreign terrorist organization since October 15,

2004, and that al Shabaab has been so designated since March 18, 2008. This court took

judicial notice of al Shabaab’s designation in the trial of United States v. Mahamud Said

Omar , District Court File No. 09-242 (MJD/FLN).



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6. The government should be permitted to have a second FBI Agent atcounsel table.

This is a complex case, involving a large number of people, an expert witness,

activity in Minnesota, New York, and California, a great deal of evidence, and sometimes

complex inter-relations. FBI Special Agent Carson Green has been involved in this case

full time since inception, and has been central to the collection of much of the evidence in

the case. The Court earlier allowed the FBI case agent, John Thomas to be seated at

counsel table. While Agent Thomas’s assistance to the prosecutors will be invaluable,

this is a case which merits a second agent at the prosecution table, particularly when the

agent for which such permission is sought has been so central to important aspects of the

case, including the compilation of the tape recordings made by cooperating co-

conspirator Abdirahman Bashir, and the preparation of transcripts of those recordings.

Neither Special Agent Thomas nor Special Agent Green will testify during the

government’s case in chief. Depending on circumstances, the government may call

Special Agent Green or Special Agent Thomas in rebuttal.



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CONCLUSION

The government is ready to begin trial on May 9, 2016.

Dated: May 7, 2016 Respectfully Submitted,

ANDREW M. LUGERUnited States Attorney

s/ John Docherty

BY: JOHN DOCHERTY

Assistant United States AttorneyAttorney Reg. No. 017516X

JULIE E. ALLYNAssistant United States AttorneyAttorney Reg. No. 256511

ANDREW R. WINTERAssistant United States AttorneyAttorney Reg. No. 232531



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prosecution's charges and trial brief in minneapolis isis case

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