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

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA
Criminal No.: 15-49 (MJD/FLN)
UNITED STATES OF AMERICA,
Plaintiff,
v.
2. MOHAMED ABDIHAMID FARAH,
4. ABDIRAHMAN YASIN DAUD, and
7. GULED ALI OMAR,
Defendants.

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TRIAL BRIEF OF THE

UNITED STATES

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.

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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 governments 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) renumbers the charges so that there are no gaps in the numerical sequence of charges, (e)
corrects the spelling of defendant Dauds 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.
II.

The Indictment contains ten counts.

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 governments
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 or
more other persons, regardless of where such other person or persons are
located, to commit at any place outside the United States an act that would
constitute the offense of murder, kidnapping, or maiming if committed in
the special maritime and territorial jurisdiction of the United States shall, if
any of the conspirators commits an act within the jurisdiction of the United
States to effect any object of the conspiracy, be punished [for any term of
years 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 Foreign
Terrorist 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 foreign

terrorist organization, or attempts or conspires to do so, shall be fined under
this title or imprisoned not more than 15 years, or both, and, if the death of
any person results, shall be imprisoned for any term of years or for life. To
violate this paragraph, a person must have knowledge that the organization
is a designated terrorist organization . . . that the organization has engaged
or engages in terrorist activity . . . or that the organization has engaged or
engages in terrorism.
1.

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

a. Foreign Terrorist Organization and the Governments Request for
Judicial 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 governments 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 designations
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 ISILs 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 that
any written testimony, declaration, deposition, or certificate by him
subscribed, is true, willfully and contrary to such states or subscribes any
material 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, or
fraudulent 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 of
subchapter 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 governments 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.
believability of the false statement.

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Materiality is not dependent upon the

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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
FBIs 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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TSA personnel, and FBI Agents, and how defendants who were under law enforcement
scrutiny could still travel to Syria by traveling through Mexico.
The evidence will show that there were three major efforts by the conspiracy to
send members to Syria to join ISIL, in May of 2014, November of 2014, and April of
2015.
May of 2014
The May of 2014 effort had two components, one in which defendant Guled
Omar, together with Yusuf Jama and cooperating co-conspirator Abdirahman Bashir,
tried to drive to Mexico and travel onwards from there to Syria. This effort was thwarted
by defendant Guled Omars family.

Also in May of 2014, cooperating defendant

Abdullahi Yusuf, Abdi Nur, and Adnan Farah attempted to fly commercially from
Minneapolis Saint Paul International Airport (MSP) to Istanbul. Adnan Farah never
tried to fly because of passport problems, Abdullahi Yusuf was denied boarding at MSP
on May 28, 2014, but Abdi Nur successfully traveled to Syria from MSP on May 29,
2014.
Cooperating co-conspirator Abdirahman Bashir will testify to an attempt made on
May 24, 2014 in which he, defendant Guled Omar, and co-conspirator Yusuf Jama
attempted to travel from Minnesota to Mexico in a rented car, and to fly from Mexico to
Syria. They were prevented from doing so by defendant Guled Omars family. The
evidence will also show that before departing, defendant Guled Omar withdrew $5,000
from his student financial aid account and that these funds have never been repaid.

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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 Jamas 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. Coconspirators 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 Dauds car. Also in the car was Abdirahman Bashir, the FBIs 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 governments 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. 1006s 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 crossexamination:
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 Bashirs
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 Bashirs 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 (8th 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 (8th 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 (8th Cir. 1978), or even that a
witness had committed (but not been convicted of) arson, United States v. Ngombwa,
2016 WL 111434 *7 (8th 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 partys
statement, and Fed. R. Evid. 801(d)(2)(E) includes within the scope of that exception a
statement of the partys 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-conspirators 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 (8th 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 (8th 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 Shabaabs 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 at

counsel 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 Thomass 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 coconspirator Abdirahman Bashir, and the preparation of transcripts of those recordings.
Neither Special Agent Thomas nor Special Agent Green will testify during the
governments 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. LUGER
United States Attorney
s/ John Docherty
BY: JOHN DOCHERTY
Assistant United States Attorney
Attorney Reg. No. 017516X
JULIE E. ALLYN
Assistant United States Attorney
Attorney Reg. No. 256511
ANDREW R. WINTER
Assistant United States Attorney
Attorney Reg. No. 232531

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