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Case 2:16-cr-00082-TS-RTB Document 185 Filed 04/26/16 Page 1 of 10

JOHN W. HUBER, United States Attorney (#7226)

ROBERT A. LUND, Assistant United States Attorney (#9579)
TYLER L. MURRAY, Assistant United States Attorney (#10308)
Attorneys for the United States of America
185 South State Street, Suite 300
Salt Lake City, Utah 84111
Telephone: (801) 524-5682




Case No. 2:16-CR-82-TS




District Court Judge Ted Stewart

The United States of America respectfully submits this motion in limine to exclude
evidence or argument that members of the FLDS Church have a right to donate their
Supplemental Nutrition Assistance Program (SNAP) benefits to the FLDS storehouse to be
used as FLDS leaders see fit.

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The SNAP Program

The purpose of the supplemental nutrition assistance program is to permit low-

income households to obtain a more nutritious diet through normal channels of trade by
increasing food purchasing power for all eligible households who apply for participation. 7
USC 2011. See also Alkabsh v. United States, 733 F.Supp.2d 929, 933 (W.D. Tenn. 2010)
(Congress implemented the Food Stamp Program in order to safeguard the well-being of the
Nations population by raising levels of nutrition among low-income households.)(citation
omitted). To meet this purpose, Congress authorized a cooperative Federal-State program under
which eligible households within a State are provided an opportunity to obtain a more nutritious
diet through the issuance of a monthly benefit allotment. 7 USC 2013(a). The benefit
allotments received by such households must only be used to purchase eligible food from retail
food stores that are authorized by the USDA to participate in SNAP. Id.

Given that the key purpose of SNAP is to increase the food purchasing power for

low-income households, a fundamental concept of the program is the household. In the Food
Stamp Act of 1964, Congress broadly defined household to mean a group of related or
unrelated individuals . . . living as one economic unit sharing common cooking facilities and for
whom food is customarily purchased in common. As the Program developed, Congress refined
the definition of household to prevent individuals who are not low-income from being
considered household members and to prevent household members from manipulating the
composition of their household for purposes of receiving larger benefit allotments. For example,
in 1981, Congress had concerns that some SNAP household members were artificially claiming

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to be separate households, although they lived together, in order to receive larger benefit
allotments. Congress changed the law so that certain individuals such as parents and their
children who live together are presumed to purchase and prepare meals together even if they do
not do so. See S. Rep. No. 97-139, at 442 (1981) (indicating that the 1981 Amendment to the
Food Stamp Act was designed to prevent food stamp household members from artificially
claiming to be separate households, although they live together, and thereby receiving larger
benefits.). See also Lyng v. Castillo, 477 U.S. 635 (1986); H.R. Conf. Rep. 103-213, at 927-28

Currently, Section 3(m) of the Food and Nutrition Act, 7 USC 2012(m),

generally defines a household to be individuals who live together and customarily purchase food
and prepare meals together. The statute further provides specific presumptions as to what types
of living arrangements would constitute a household in order to preserve program integrity. 1
See also 7 CFR 273.1.

The full definition of household in 7 U.S.C. 2012(m) is set forth below:

(1) Household means

(A) an individual who lives alone or who, while living with others, customarily purchases food and
prepares meals for home consumption separate and apart from the others; or
(B) a group of individuals who live together and customarily purchase food and prepare meals together for
home consumption.
(2) Spouses who live together, parents and their children 21 years of age or younger who live together, and children
(excluding foster children) under 18 years of age who live with and are under the parental control of a person other
than their parent together with the person exercising parental control shall be treated as a group of individuals who
customarily purchase and prepare meals together for home consumption even if they do not do so.
(3) Notwithstanding paragraphs (1) and (2), an individual who lives with others, who is sixty years of age or older,
and who is unable to purchase food and prepare meals because such individual suffers, as certified by a licensed
physician, from a disability which would be considered a permanent disability under section 221(i) of the Social
Security Act (42 U.S.C. 421(i)) or from a severe, permanent, and disabling physical or mental infirmity which is not
symptomatic of a disease shall be considered, together with any of the others who is the spouse of such individual,

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The concept of the household is key for determining eligibility for the SNAP

program. During the application process for SNAP benefits, an applicant household must
provide the Social Security number of each household member before a state agency can certify
the household for SNAP benefits. 7 C.F.R. 273.6(a). Applicants must provide information about
the identity of each household member so that the state agency can conduct computer matches
for household members to confirm that no member of the household has been disqualified from
the SNAP program for a violation of program rules pursuant to 7 C.F.R.273.16. See 7 C.F.R.
273.2(f)(11)(B); 7 C.F.R. 273.16(i).

In addition, the concept of the household is key to calculating the monthly benefit

allotments an applicant is to receive. See 7 U.S.C. 2012(u) (defining Thrifty food plan to

an individual household, without regard to the purchase of food and preparation of meals, if the income (as
determined under section 2014(d) of this title) of the others, excluding the spouse, does not exceed the poverty line,
as described in section 2014(c)(1) of this title, by more than 65 per centum.
(4) In no event shall any individual or group of individuals constitute a household if they reside in an institution or
boarding house, or else live with others and pay compensation to the others for meals.
(5) For the purposes of this subsection, the following persons shall not be considered to be residents of institutions
and shall be considered to be individual households:
(A) Residents of federally subsidized housing for the elderly, disabled or blind recipients of benefits under
title I, II, X, XIV, or XVI of the Social Security Act [42 U.S.C. 301 et seq., 401 et seq., 1201 et seq., 1351
et seq., 1381 et seq.].
(B) Individuals described in paragraphs (2) through (7) of subsection (j), who are residents in a public or
private nonprofit group living arrangement that serves no more than sixteen residents and is certified by the
appropriate State agency or agencies under regulations issued under section 1616(e) of the Social Security
Act [42 U.S.C. 1382e(e)] or under standards determined by the Secretary to be comparable to standards
implemented by appropriate State agencies under that section.
(C) Temporary residents of public or private nonprofit shelters for battered women and children.
(D) Residents of public or private nonprofit shelters for individuals who do not reside in permanent
dwellings or have no fixed mailing addresses, who are otherwise eligible for benefits.
(E) Narcotics addicts or alcoholics, together with their children, who live under the supervision of a
private nonprofit institution, or a publicly operated community mental health center, for the purpose of
regular participation in a drug or alcoholic treatment program.

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mean the diet required to feed a family of four persons consisting of a man and a woman twenty
through fifty, a child six through eight, and a child nine through eleven years of age, determined
in accordance with the Secretarys calculations. This plan is then adjusted based on the
household size, taking into account economies of scale).

Moreover, the Food and Nutrition Act limits the participation in SNAP to those

households whose incomes and other financial resources, held singly or in joint ownership, are
determined to be a substantial limiting factor in permitting them to obtain a more nutritious diet.
7 USC 2014(a). These income and resources standards are established by Congress under 7
USC 2014. If a household is determined to meet the income and resources standards, Congress
has authorized State agencies to issue monthly benefit allotments to the household in accordance
with 7 USC 2017(a)(The value of the allotment which State agencies shall be authorized to
issue to any households certified as eligible to participate in [SNAP] shall be equal to the cost to
such households of the thrifty food plan reduced by an amount equal to 30 per centum of 5(d)
and (e) of this Act, rounded to the nearest lower whole dollar . . . .).

In short, the idea behind the SNAP program is to feed discrete, hungry

households, and the concept of the household is central to a persons application for SNAP
benefits; the governments determination of whether someone is eligible for SNAP benefits; and
the governments determination of the amount of SNAP benefits an eligible applicant receives.
The FLDS SNAP Fraud Scheme

The Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS church)

split from the Church of Jesus Christ of Latter-day Saints (LDS church) after the LDS church
renounced the practice of polygamy. ECF No. 1, 6. A large congregation of FLDS members

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lives along the Utah/Arizona border in what is called the Short Creek area. This congregation is
led by Lyle Jeffs. Another group lives in rural Custer County, South Dakota and is led by Seth
Jeffs. Id. at 6-7.

In 2011, under the direction of Warren Jeffs, FLDS leaders, including Lyle Jeffs,

instituted the United Order among certain members of the FLDS church. Adherents to the
United Order promise to donate their lives and all of their material substance to the FLDS
church. 2 8

Adherents to the United Order must donate all of their material assets to the FLDS

Storehouse, a communal clearinghouse charged with collecting and disbursing commodities to

the community. United Order policy also dictates that members must obtain their food and
household commodities through the FLDS Storehouse. Id.

A large percentage of FLDS members in the Short Creek area receive SNAP

benefits, amounting to millions of dollars in benefits per year. Id.


Starting in 2011, FLDS leaders directed members to divert their SNAP benefits to

the FLDS Storehouse, rather than using them for their own households. Id. at 10.

FLDS leaders directed United Order members to divert SNAP benefits to the

FLDS Storehouse in two general ways: (i) by purchasing food items at Meadowayne Dairy
(Meadowayne) or Vermillion Cliffs Produce (Vermillion) and physically transporting those

Although FLDS members had practiced some form of cooperative economic system for many
years, the system that gives rise to this case was created in 2011. According to one former FLDS
and United Order member, he started to attend United Order meetings in April 2011, and he was
one of the first 50 members of this new United Order. His first experience with the new United
Order consisted of a two hour meeting after which 26 men were baptized into the new group.
The new United Order involved strict instructions, such as avoiding all forms of entertainment;
no eating at restaurants; and no relations between spouses.

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items to the FLDS Storehouse for dontation; or (ii) by converting SNAP benefits directly to
fungible assets by swiping SNAP EBT cards are Meadowayne or Vermillion without the
exchange of any food products. Id. at 11.

Through this scheme, FLDS leaders diverted SNAP benefits away from the

households who were entitled to them, and then used the SNAP benefits for purposes other than
the purchase of foods for authorized households. Id. at 13. To the extent that FLDS leaders
directed the purchase of non-food items with the SNAP benefits, this violated the restrictions of
the Food and Nutrition Act, which require the purchase of food. 7 U.S.C. 2013(a) and
2016(b). And to the extent that FLDS leaders directed the purchase of food with the diverted
SNAP benefits, the SNAP benefits were not distributed in accordance with the needs assessment
required by the Food and Nutrition Act. See generally 7 U.S.C. 2014.

The net result of this was that FLDS SNAP-authorized households were not

getting the food they needed, frustrating the purpose of the SNAP program. With respect to
getting food from the FLDS Storehouse, one witness told investigators [w]e were literally
starving, it was not even enough to sustain. She explained that her family subsisted on
noodles, brown rice, tomato juice, and sometimes bread. Fruits, vegetables, and dairy products
were difficult to obtain. Another witness told investigators that the process of obtaining food
from the FLDS Storehouse was humiliating and that her children were living off toast.
Similarly, a third witness who worked at the FLDS Storehouse told investigators that [t]he
shelves were frequently barren, and that much of the available food was not desirable and very
old. This former FLDS member said that [i]f there was cold cereal in the Storehouse, people
would literally fight over it.

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In contrast, witnesses told investigators that FLDS Leadership, including

Defendants Lyle Jeffs and John Waymanwho were not SNAP recipients, and likely not
eligible for SNAP benefitsobtained plenty of food from the Storehouse, which was largely
funded with SNAP benefits. These leaders had special pallets of food set aside for them and
their families. They even had the ability to obtain food from places other than the Storehouse.
Federal Law and Regulations Prohibit FLDS Leaders From Systematically
Requiring FLDS Members to Donate their SNAP Benefits.
Given that the purpose of the SNAP program is to provide nutritious food to low-income
households, Congress tailored the laws governing the disposition of SNAP funds to ensure
SNAP benefits remain with the households entitled to them. Section 4(a) of the Food and
Nutrition Act, requires that SNAP recipients use the benefits to buy food for their households:
The benefits so received by such households shall be used only to purchase food from retail
food stores which have been approved for participation in the supplemental nutrition assistance
program. 7 USC 2013(a). Similarly, 7 USC 2016(b) states that [b]enefits issued to eligible
households shall be used by them only to purchase food from retail food stores which have been
approved for participation in the supplemental nutrition assistance program.) (emphasis added)
The regulations implementing the SNAP program likewise make clear that [p]rogram
benefits may be used only by the household, or other persons the household selects, to purchase
eligible food for the household[.] 7 C.F.R. 274.7(a).
Moreover, to ensure that benefits reach the authorized households, the law further
requires that the purchased food be present at the time the SNAP recipients use their card to
purchase food. See, e.g., 7 USC 2019; 7 CFR 274.7(b) (Prior payment prohibition. Program

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benefits shall not be used to pay for any eligible food purchased prior to the time at which an
EBT card is presented to authorized retailers or meal services. Neither shall benefits be used to
pay for any eligible food in advance of the receipt of food [.]); 7 CFR 278.2(e)(Accepting
coupons before delivery. Food retailers may not accept coupons before delivering the food,
retain custody of any unspent coupons, or in any way prevent an eligible household from using
coupons in making purchases from other authorized firms.); 7 CFR 278.2(f) (Paying credit
accounts. Food stamp benefits shall not be accepted by an authorized retail food store in payment
for items sold to a household on credit. A firm that commits such violations shall be disqualified
from participation in the Food Stamp Program for a period of one year.).
Congress further made it a crime for anyone to use the SNAP benefits for a purpose other
than to purchase food for a household, as authorized by the statutes and regulations. See, e.g. 7
U.S.C. 2024(b) (making it a crime to knowingly use, transfer, acquire, and possess SNAP
benefits, valuing $5,000 or more, in any manner contrary to the governing statute and
regulations); and 7 U.S.C. 2024(c) (making it a crime to knowingly present and cause to be
presented for payment and redemption, SNAP benefits valuing $100 or more, knowing the same
to have been received, transferred, and used in any manner in violation of the governing statute
and regulations).
These authorities, which require SNAP beneficiaries to use the SNAP benefits to
purchase eligible food for their households, necessarily prevent FLDS leaders from
systematically requiring members to donate their SNAP benefits to the FLDS Church to be used
outside of the authorized households as the church leaders see fit.

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The United States therefore requests a pre-trial order and jury charge at trial precluding
the Defendants from raising the donation of benefits as a defense to the crimes charged.

DATED this 26th Day of April.

United States Attorney

/s/ Tyler L. Murray

Assistant United States Attorney