When Approval Becomes Entrapment
How MDE's Mixed Messages in the Feeding Our Future Case Raise Serious Questions of Due Process
The Feeding Our Future Investigation: A Timeline of Contradictions
On Jan 14, 2022, Special Agent Travis Wilmer submitted several applications for search warrants and affidavits detailing the probable cause for the proposed searches. These documents were submitted only two months after he started working for the Federal Bureau of Investigation (FBI). These affidavits laid the foundation for allegations of a massive scheme to defraud Federal Child Nutrition programs during the COVID-19 pandemic. The allegations were nothing short of incendiary and, in the words of several defendants, riven with misrepresentations.
Special Agent Wilmer said, “In April 2021, MDE provided information to the FBI alleging that Feeding Our Future and sites under its sponsorship were diverting funds away from the nutrition program. MDE believed certain sites were submitting fraudulent documents to support reimbursement of funds in addition to artificially inflating the number of children and low-income individuals receiving benefits in order to obtain funds. But MDE did not have access to the participating companies’ bank records so was unable to conclusively determine whether they were misappropriating Federal Child Nutrition Program funds.”
The Minnesota Department of Education (MDE) might have been crying fraud to the FBI, but in almost every other forum, MDE claimed the opposite, whether in communications to State legislators or in sworn depositions. Ms. Emily Honer testified under oath in the first of the Feeding Our Future criminal trials. As reported in the Minnesota Reformer, “Honer was particularly concerned about a site at Tot Park in Circle Pines, a suburb north of the Twin Cities, because it wasn’t even open—it was under construction.”
Despite these concerns, MDE never moved to recover any federal funds paid for Tot Park and approved Tot Park as a CACFP site again for the fiscal year 2022. This is not an isolated incident but a pattern of MDE claiming fraud to the FBI while effectively approving the actions of sponsors and their sites month after month until Special Agent Wilmer and 200 federal agents executed their search warrants.
If MDE suspects false or fraudulent claims, it is required to follow a set of due process steps, starting with issuing a serious deficiency for false and fraudulent claims. MDE has a duty not to pay any invalid claims and must, by federal regulation, notify sponsors within 15 days of any issues with their claims. MDE even discussed its procedures concerning fraud in an internal email obtained by this writer. MDE didn’t even follow its own internal procedures regarding allegations of fraud, let alone its regulatory requirements.
MDE’s contradictory behavior—alleging fraud privately while approving operations publicly—undermines any consistent regulatory oversight. This failure to fulfill its due process obligations left participants relying on MDE's assurances that everything was in compliance. When the same authority tells you things are fine but later accuses you of fraud, it feels fundamentally unfair—like being set up to fail. This is the core of the entrapment by estoppel argument in this case.
Understanding Entrapment by Estoppel
Entrapment by estoppel, a legal defense that prevents the government from prosecuting individuals for actions it led them to believe were lawful, emerged from a series of landmark Supreme Court cases establishing that the government cannot prosecute people for actions it led them to believe were legal. This principle was crystallized in *Raley v. Ohio*, where the Supreme Court overturned convictions of witnesses who were prosecuted for invoking their Fifth Amendment rights after being told by a state commission they could do so. Justice Brennan declared it would be an "indefensible sort of entrapment" to punish citizens for following government guidance.
The doctrine's relevance to the Feeding Our Future case stems from the unique regulatory structure of federal food programs. As the designated state agency, the Minnesota Department of Education (MDE) had both the authority and duty to oversee these programs. Their role wasn't passive—they actively reviewed operations, approved sites, processed claims, and maintained ongoing oversight.
Throughout the program's operation, MDE created a documented pattern of approval. They reviewed and paid claims, authorized sites, and provided guidance when asked. For example, MDE's approval was documented in numerous emails, meeting notes, and site visit reports, consistently confirming compliance and ongoing support for program operations. Even after reporting suspicions of fraud to the FBI, they continued approving operations and processing payments. This creates a powerful argument that participants reasonably relied on government approval of their activities.
The Role of Sponsors: A Second Layer of Legitimacy
The estoppel defense gains additional force when examining the role of sponsors in federal food programs. Sponsors, like Feeding Our Future and Partners in Nutrition, are organizations vetted and approved by MDE. They serve as intermediaries between the state agency and the participating sites, ensuring compliance with federal regulations, monitoring operations, and submitting claims for reimbursement. Just as MDE served as the designated state agency, sponsors like Feeding Our Future and Partners in Nutrition functioned as an essential regulatory layer with both authority and duty to oversee program operations. Their role, mandated by federal regulations, wasn't passive—they actively monitored sites, reviewed documentation, conducted compliance visits, and critically disallowed claims that didn't meet program requirements.
This sponsor oversight layer created a second level of reasonable reliance. Participating sites and vendors operated under continuous monitoring from sponsors who exercised real regulatory authority. Sponsors who denied claims or required corrective actions demonstrated active oversight rather than rubber-stamp approval. The fact that sponsors routinely disallowed meals and enforced compliance shows they were functioning as intended within the regulatory structure.
Most significantly, both Feeding Our Future and Partners in Nutrition went beyond basic oversight—they reported suspected fraud to MDE. Feeding Our Future terminated vendors such as Empire Cuisine & Market and Brava Cafe. Feeding Our Future terminated sites such as House of Refuge and Community Enhancement Services. Partners in Nutrition checked rosters for duplicates and routinely disallowed meals for various reasons. Both sponsors (FOF and PIN) conducted over 2,000 monitoring visits during the pandemic. This critical fact transforms the estoppel defense from theoretical to concrete: How can participants be accused of knowingly engaging in fraud when their direct oversight authority actively works to prevent it? When sponsors denied improper claims and reported suspicious activity, they created a documented pattern of compliance enforcement that participants could reasonably rely upon.
Just as the Supreme Court found it "indefensible" to punish citizens for following state commission guidance in *Raley*, it would be equally indefensible to criminally charge participants who operated under the active oversight of sponsors who were themselves identifying and reporting fraud concerns. The sponsors' documented pattern of compliance enforcement, combined with MDE's continued approvals, created multiple layers of apparent legitimacy that participants reasonably relied upon.
The Supreme Court has consistently held that such reliance on government authority raises constitutional due process concerns. Due process is concerned with fundamental fairness, and prosecuting individuals for actions explicitly or implicitly approved by the government violates this principle, depriving them of fair notice that their conduct was unlawful. In Cox v. Louisiana, the Court found protesters couldn't be convicted for demonstrating where police told them they could, even if that permission was mistaken. Similarly, in United States v. Pennsylvania Industrial Chemical Corp., the Court held a company couldn't be prosecuted for pollution when it relied on the Army Corps of Engineers' interpretation of the law, even though that interpretation proved wrong.
The defense is particularly relevant to Feeding Our Future because participants operated within an approved system rather than hiding from oversight. They sought guidance, maintained documentation, and followed prescribed procedures. When questions arose, they actively engaged with regulators. This creates a fundamental fairness question: How can the government prosecute people for actions its own agency appeared to approve?
The strength of this defense varies based on individual conduct. Those operating real sites serving actual meals with proper documentation have stronger arguments than those who might have created phantom operations. An excellent example of a phantom operation is Bekam Merdassa of Youth Inventors Lab, who told the court that Youth Inventors Lab never served a single meal. However, for many defendants, MDE's documented approval and oversight create serious questions about the fairness of subsequent prosecution.
Case Study: Safari Restaurant
Safari appears to have had eight monitoring visits over 18 months, and based on these videos and pictures, there also appears to have been activity.
The Missing Evidence: Assumptions vs. Reality
The prosecution's narrative of massive fraud rests on a curious omission: they never established what legitimate meal service numbers should have been. Without baseline evidence gathered during operations, claims of "obvious" inflation rely more on assumption than proof.
Consider Safari Restaurant's case. Far from operating a phantom site, Safari's monitoring visits showed substantial meal preparation and distribution. Bank records demonstrate millions in food purchases and operational expenses. Yet prosecutors claim these numbers were inflated without establishing what reasonable numbers should have been during an unprecedented pandemic when schools were closed and community needs were acute.
The prosecution faces a fundamental challenge. How can they prove criminal inflation without documenting:
What actual meal service numbers were
What legitimate service levels should have been
Any contemporaneous evidence of claimed vs. served meals
Real-time verification of reported numbers
This gap in evidence cannot be filled by assumptions about what seems plausible. Defendants maintained records, operated openly, and can document millions in actual expenditures. Without baseline evidence of what legitimate service should have looked like during the pandemic, prosecutors are essentially asking jurors to conclude fraud existed simply because the numbers seem large.
Would a reasonable person receiving this level of oversight, while demonstrably providing services, believe they were engaged in criminal conduct?
MDE's Pattern of Approval and Mixed Messages
Imagine you're building a deck on your house. You check with the city building inspector, who reviews your plans, issues permits, inspects your work, and tells you everything looks good. Then, after the deck is built, a different government agency arrests you for building an illegal deck.
Most people would say that's fundamentally unfair—you followed the rules, got proper approvals, and relied on the government's guidance. That's essentially what entrapment by estoppel means.
In the Feeding Our Future case, it's like the building inspector (MDE) approved the deck plans, inspected the construction, and kept saying everything was fine—but a year later, federal prosecutors claim the deck was illegal. The critical question becomes: How could you know it was wrong when the government agency responsible for oversight kept telling you it was right?
MDE created reasonable reliance in several ways, shown by specific examples from emails and sworn testimony. The following sections will provide concrete instances that illustrate how MDE's actions led participants to reasonably believe they complied:
1. MDE Denied Fraud Concerns: Officials repeatedly stated they had no reason to suspect fraud. For example, Assistant Commissioner Daron Korte and others testified that MDE did not believe fraudulent claims had been submitted, emphasizing their focus was on program integrity rather than fraud.
“We have no reason to suspect fraud. Rather we just want to be sure everyone knows and is following the program requirements and the meals being served are valid under USDA rules.” - Daron Korte
“I do not recall using the word fraud in the interview. If I did mention fraud, it was only in the context that such a large volume and increase in meal claims make it more difficult to ensure all meal claims are valid.” - Daron Korte
“On Monday, you indicated that MDE was not suspecting fraud, but given the growth of the program you wanted to take extra precautions. At least that was my understanding.” - Senator Fateh summarizing MDE discussions
“As we said in our [meeting], we have no reason to suspect fraud.” - Daron Korte
“I don’t think I ever said fraud concerns and I also notice he doesn’t quote me there, it’s just a paraphrase. I believe I stuck to the words program integrity.” - Daron Korte in internal email to MDE colleagues
2. Regulatory Abdication: Despite raising concerns, MDE never issued a serious deficiency notice to Feeding Our Future or Partners in Nutrition related to the submission of false or fraudulent claims, as required by federal regulations.
“MDE will not act as mediation between a site and sponsor—the parties need to come to a resolution on their own.” - Emily Honer, September 27, 2021
“MDE takes no position if fraud has taken place, but assuming that Feeding Our Future has reason to suspect fraud then the following two options seem appropriate…” - Emily Honer, September 02, 2021
“MDE will remove the stop pay from impacted sponsors’ meal claims but we will reserve the right to collect validation documents and seek recovery of payments for disallowed meal claims as allowed or required by federal regulations.” - Adosh Unni, Director of Government Relations at MDE
3. Direct Approvals: MDE explicitly approved claims and authorized operations, even after expressing concerns to the FBI. They continued to process payments, creating an appearance of compliance.
“Yes Feeding Our Future can claim those meals in May and June as they are your approved CACFP sponsor.” - Emily Honer
4. Continued Payment Processing: Even after reporting suspicions to the FBI, MDE kept reviewing and paying claims, akin to a bank continuing to cash checks while secretly reporting suspected fraud.
“MDE is required to deny invalid claims. My understanding is that because of the alarming growth, MDE wanted the sponsors to turn over documentation proving the validity of the claims before clearing the payments.” - Senator Omar Fateh recounting his understanding in an email summarizing his discussion with MDE officials
“The Midwest Regional Office of the United States Department of Agriculture (‘MWRO’) has communicated to MDE that it is concerned about the validity of Plaintiff’s [FOF] meal claims. Accordingly, MDE will continue to review claims for validity and will seek to recoup any paid claims found to be invalid under the procedures set forth in 7 C.F.R 225.12, 226.14.” - April 30, 2021 Declaration of Emily Honer
5. Inconsistent Guidance: MDE gave contradictory directives to different sponsors. At times, they took no position on potential fraud, while at other times, they provided detailed instructions for reporting it. This inconsistency further reinforces the appearance of compliance for those seeking guidance.
“MDE takes no position if fraud has taken place.” - Emily Honer, concerning House of Refuge
“Follow the SD process for false information… depending on severity, a sponsor should also consider filing a complaint with the State agency.” - MDE to Partners in Nutrition, detailing fraud reporting protocols
Each of these points shows how MDE's actions created a documented approval pattern, leading participants to reasonably rely on the legitimacy of their operations.
This directly ties back to the concept of entrapment by estoppel, as participants were led to believe their conduct was lawful based on continuous government approvals. How can prosecutors claim criminal intent when organizations operate openly, seeking and receiving ongoing approvals from the regulatory authority?
The Restaurant Analogy: A Matter of Regulatory Responsibility
Think about a restaurant during health inspections. The restaurant maintains documentation, follows food safety protocols, and stays open for inspections. If health inspectors never visit but later claim the restaurant was running an unsafe operation, we'd ask: "Why didn't you check when you had the chance?"
The Feeding Our Future sites operated similarly. Take a typical food distribution site: It had a physical address, regular operating hours, on-site staff, delivery records, and meal counts. Like a restaurant, it maintained documentation and remained open to inspection. MDE, like health inspectors, had full authority to visit, review records, or request documentation at any time.
When MDE officials testified they had fraud concerns as early as April 2020, it raises a crucial question: Why didn't they verify operations? Imagine health inspectors suspecting a restaurant of violations but never visiting the establishment, continuing to approve its operations, and then claiming criminal conduct months later.
The email exchanges show organizations actively seeking guidance, like a restaurant asking health inspectors about proper procedures. When multiple organizations sought clarity about the Portland Avenue site, they weren't hiding—they were explicitly asking the regulatory authority for direction.
This creates a powerful defense: How can prosecutors claim criminal intent when organizations operate so openly that any government official could have verified their operations at any time? The sites weren't hidden behind fake addresses or phantom locations—they were real places where real food distribution occurred, maintaining records and remaining open to inspection.
Just as we'd question health inspectors who claim widespread violations but never conduct inspections, we must ask why MDE, with full regulatory authority, chose not to verify operations it claimed were suspicious. Instead, they continued approving claims and processing payments while maintaining private suspicions—effectively telling the restaurant "everything's fine" while building a criminal case.
Conclusion: A Question of Fundamental Fairness
In the Feeding Our Future case, entrapment by estoppel comes down to a simple principle: you shouldn't be punished for doing something the government told you was okay. The doctrine applies differently to various players in this story:
Program sponsors like Feeding Our Future operated openly conducted thousands of site visits and even reported suspicious activities to MDE. Sites maintained physical locations that anyone could visit, kept detailed records, and underwent regular inspections. Vendors worked within this approved system, maintaining delivery records and following established procedures.
Prosecutors might argue that participants knew their claims were inflated regardless of MDE's approvals - that internal knowledge of wrongdoing overcomes any government authorization. However, this argument struggles against the documented pattern of MDE's active oversight. When an organization operates in plain sight, seeks guidance, and receives explicit approvals from its regulator, it becomes much harder to prove they believed they were doing something wrong.
Think of it like our earlier deck-building example: If you got permits, passed inspections, and followed the rules - only to be arrested later - you'd rightfully feel misled. The strength of this defense varies, of course. Organizations that served real meals to real children at real locations have a much stronger argument than those who created phantom operations, like Youth Inventors Lab, which admitted to never serving a single meal. But for many defendants, MDE's pattern of approvals while privately suspecting fraud creates a compelling argument that they were led to believe their operations were legitimate.
The core question remains: How can you knowingly commit fraud when the government agency responsible for oversight kept telling you everything was fine? When the same authority that guides you later accuses you of crimes, fundamental fairness - the heart of due process - comes into question.