Doc 142; Opposition to Deft Kadyrbayev's Motion to Dismiss and Bill of Particularsand to Stirke...

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA ) ) v. ) ) Crim. No. 13-10238-DPW DIAS KADYRBAYEV (1), ) AZAMAT TAZHAYAKOV (2), and ) ROBEL KIDANE PHILLIPOS (3), ) ) Defendants. )

OPPOSITION TO DEFENDANT DIAS KADYRBAYEVS MOTIONS TO DISMISS INDICTMENT AND FOR BILL OF PARTICULARS AND TO STRIKE SURPLUSAGE

The United States of America opposes Defendant Kadyrbayevs (the defendant or

Kadyrbayev) Motion to Dismiss Counts One and Two of the Superseding Indictment because

that motion, based on a void-for-vagueness challenge to 18 U.S.C 1519, is without merit. The

defendant lacks standing to challenge the constitutionality of 1519 as facially void for

vagueness because the statute clearly applies to the defendants conduct and courts will not

entertain vagueness challenges by defendants whose conduct clearly falls within the ambit of the

statute. Even if the defendant were to have standing, a vagueness challenge to 1519 is

meritless, as courts addressing the issue have unanimously held.

Similarly, the defendants motion for a bill of particulars is baseless. The Superseding

Indictment contains all the elements of the crimes charged and alleges sufficient facts underlying

those crimes to adequately apprise the defendant of what he must be prepared to meet. The

specificity with which the indictment identifies the defendants obstructive conduct makes it

inconceivable the defendant will be unfairly surprised at trial.

Finally, the Superseding Indictment contains no surplusage within the meaning of Fed. R.

Crim. P. 7 (d). The allegations the defendant seeks to strike are directly relevant to the crimes

charged. The law is clear that allegations in an indictment that the government intends to prove

at trial cannot be stricken as surplusage, regardless of prejudice.

Case 1:13-cr-10238-DPW Document 142 Filed 04/25/14 Page 1 of 17

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The Court should therefore deny each of the defendants motions.

I. Factual Background

A lengthy recitation of facts is not necessary. A brief, non-exhaustive presentation of

illustrative facts alleged in the Criminal Complaint and Superseding Indictment, however,

will serve to provide helpful context for the arguments advanced by the defendant.

Count One of the Indictment charges defendant Kadyrbayev with conspiring with

defendant Tazhayakov to violate 1519 by agreeing:

to knowingly alter, destroy, conceal, and cover up tangible objects belonging to Dzokhar Tsarnaev, namely a laptop computer and a backpack containing fireworks and other items, with the intent to impede, obstruct, and influence an investigation and proper administration of a matter within the jurisdiction of the Federal Bureau of Investigation. . . and in relation to and contemplation of such investigation and matter.

Superseding Indictment, Count One. Count Two charges the defendant with a substantive violation of 1519.

Among the overt acts the Superseding Indictment alleges Kadyrbayev committed in

furtherance of the conspiracy are (1) showing a co-conspirator a text message from Tsarnaev

inviting Kadyrbaev to go to [Tsarnaevs] room and take whats there; (2) searching Tsarnaevs

dorm room and locating a backpack containing fireworks that had been opened and manipulated;

(3) removing said backpack from Tsarnaevs room, along with a laptop computer and other

items; and (4) later disposing of said backpack by placing it in a garbage dumpster. The crux of

the defendants obstructive conduct was his concealment of these objects. 1 That the FBI

ultimately recovered these objects, as the defendant points out (Def. Mot. at 3) is immaterial.

1This is not to suggest that other verbs specified in the indictment -- alter, destroy, and

cover up do not apply to the defendants conduct.


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Moreover, the defendants assertion that the items were recovered through the defendants

cooperation is a gross mischaracterization of the defendants conduct.

The Criminal Complaint in this action provides details concerning the defendants

knowledge that, on April 15, 2013, days before the defendants entered Tsarnaevs dorm room

and removed items, two explosions occurred near the finish line of the Boston Marathon. The

Complaint states that, on April 18, 2013, the defendant saw photographs of the bombing suspects

broadcast on television and noted that one of the suspects looked like Tsarnaev. Complaint 23.

The defendant then texted Tsarnaev to tell him one of the suspects looked like him. Id. Among

the responses the defendant received from Tsarnaev were the messages, you better not text me

and come to my room and take whatever you want. Id.

The Criminal Complaint further alleges that, on the evening of April 18, the three

defendants entered Tsarnaevs dorm room. Id. at 24. The defendants noticed a backpack

containing fireworks that had been opened and emptied of powder. Id. The Complaint alleges

that Kadyrbayev then knew that Tsarnaev was involved in the Marathon bombing and that

Kadyrbayev decided to remove the backpack from the room to help his friend Tsarnaev avoid

trouble. Id. The defendant also decided to remove Tsarnaevs laptop from the room. Id.

The Complaint describes the defendants actions after he, Tazhayakov, and Phillipos

returned to Kadyrbayev and Tazhayakovs apartment with the backpack and computer. Id. at

25. The defendants watched news reports that featured photographs of a man later identified

as Tsarnaev and that identified the man as a suspect in the bombings. Id. It was then that the

defendants collectively decided to throw the backpack and fireworks in the trash, again because

they did not want Tsarnaev to get in trouble. Id. The Complaint states that the defendant

personally threw the items into a dumpster near his apartment. Id. The next day, a garbage truck

emptied the dumpster and deposited its contents, including Tsarnaevs backpack, in a landfill in


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New Bedford, Massachusetts. Id. at 28 and Superseding Indictment at 13. Recovery of the

backpack required a two-day effort by 30 federal agents searching the landfill. Superseding

Indictment at 13.

II. Argument

A. Defendants Motion to Dismiss

A motion to dismiss under Federal Rule of Criminal Procedure 12(b)(3)(B) tests the

sufficiency of an indictment. At the indictment stage, the government need not show, but

merely must allege, the required elements. United States v. Stewart, 744 F.3d 17, 21 (1st Cir.

2014). An indictment must be a plain, concise, and definite written statement of the essential

facts constituting the offense charged. Id., citing Fed.R.Crim.P. 7(c)(1).

[A]n indictment is sufficient if it specifies the elements of the offense charged, fairly

apprises the defendant of the charge against which he must defend, and allows him to contest it

without fear of double jeopardy. Id. (citation omitted). The indictment's allegations are

assumed to be true, and courts routinely rebuff efforts to use a motion to dismiss as a way to test

the sufficiency of the evidence behind an indictment's allegations. Id. (citation omitted).

a. The Void-For-Vagueness Doctrine

What Kadyrbayev calls the void-for-vagueness doctrine goes by different namesthe

void-for-vagueness doctrine, the vagueness doctrine, the fair warning doctrine, but maintains the

same contours under each: the doctrine, a derivative of due process, prohibits overly vague

laws in order to ensure that persons of ordinary intelligence have fair warning of what a law

prohibits, [and] prevent arbitrary and discriminatory enforcement of laws by requiring that they

provide explicit standards for those who apply them . . . . National Organization for Marriage

v. McKee, 649 F.3d 34, 62 (1st Cir. 2011) (quoting Grayned v. City of Rockford, 408 U.S. 104,

10809 (1972)). This doctrine bars enforcement of a legal rule only when the rule prohibits . . .

an act in terms so uncertain that persons of average intelligence would have no choice but to


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guess at its meaning and modes of application. United States v. Councilman, 418 F.3d 67, 84

(1st Cir. 2005) (alteration in original) (quoting United States v. Hussein, 351 F.3d 9, 14 (1st Cir.

2003)).

The void-for-vagueness doctrine does not touch laws that require only the clarification

provided by ordinary statutory interpretation. Vagueness of the sort caught by the doctrine is

more than just garden-variety, textual ambiguity. Councilman, 418 F.3d at 84 (quoting

Sabetti v. Dipaolo, 16 F.3d 16, 18 (1st Cir. 1994) (Breyer, C.J.)). Many statutes will have some

inherent vagueness, for [i]n most English words and phrases there lurk uncertainties, but these

uncertainties do not deprive a defendant of fair notice of the rules by which it is governed. Rose

v. Locke, 423 U.S. 48, 4950 (1975) (quoting Robinson v. United States, 324 U.S. 282, 286

(1946)); see Grayned v. City of Rockford, 408 U.S. 104, 110 (1972) (Condemned to the use of

words, we can never expect mathematical certainty from our language.). Even trained lawyers

may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they

may say with any certainty what some statutes may compel or forbid. All the Due Process

Clause requires is that the law give sufficient warning that men may conduct themselves to avoid

that which is forbidden. Rose, 423 U.S. at 50.

b. The Defendant Lacks Standing to Challenge 1519 On Vagueness Grounds

As a threshold matter, Kadyrbaybev does not have standing to challenge the

constitutionality of 18 U.S.C. 1519 as facially void for vagueness because the statute clearly

applies to his conduct. Even if a statute might be vague as it relates to other, hypothetical

defendants, courts will not entertain vagueness challenges on behalf of a defendant whose

conduct clearly falls within the ambit of the statute. [T]he dispositive point here is that the

statutory terms are clear in their application to the [defendants] conduct, which means that

[defendants] vagueness challenge must fail. Holder v. Humanitarian Law Project, 561 U.S. 1,


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21 (2010); see also Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,

495 (1982) (person who engages in some conduct that is clearly proscribed cannot complain of

the vagueness of the law as applied to the conduct of others . . . [a] court should therefore

examine the complainant's conduct before analyzing other hypothetical applications of the law);

United States v. Hill, 167 F.3d, 1055, 1064 (6th Cir. 1999) (no standing to challenge Tennessee

gambling statute on vagueness grounds); United States v. Fumo, 628 F. Supp.2d 573, 599 (E.D.

Pa. 2007) (declining to reach question whether 1519 is facially unconstitutional for vagueness

because the defendant lacked standing given that his clearly fell within the ambit of the statute);

United States v. Velasco, 2006 WL 1679586, at *4 (M.D. Fla. 2006) (same).

Before committing the obstructive acts alleged in the indictment, Kadyrbayev had

actual knowledge of (1) the Marathon bombings; (2) the law enforcement investigation of those

bombings as an act of terrorism; and (3) Tsarnaev being a subject of the investigation. Given

that the defendant had actual knowledge that Tsarnaev was the subject of the investigation, his

concealment of items he took from Tsarnaevs dorm with the intent to obstruct an investigation

and proper administration of a matter within the jurisdiction of the FBI and in relation to and

contemplation of such an investigation and matter clearly violates 1519.

Fumo is instructive. Fumo argued, as Kadyrbayev does, that the language of 1519 was

vague as applied to him. Fumo, 628 F.Supp.2d at 598. The court found that the defendant

lacked standing to challenge 1519 on vagueness grounds because he had knowledge of the

actual investigation he was charged with obstructing. The basis for this conclusion was the fact

that, prior to the obstructive conduct underlying the indictment against Fumo, the local press

extensively reported on the investigation and Fumo and his associates had received grand jury

subpoenas in connection with the allegations. Id. Like Fumo, Kadyrbayev had actual

knowledge of the fact and substance of the law enforcement investigation he is charged with


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obstructing. In fact, the allegations of actual knowledge in this case including defendants

acknowledgement that he knew Tsarnaev was involved in the Marathon bombing before he

decided to remove the backpack from Tsarnaevs room; that he did so to help Tsarnaev avoid

trouble; and that he decided to throw the backpack in a dumpster after news accounts confirmed

his belief that Tsarnaev was a suspect in the bombings -- make it even clearer than it was in

Fumo that the defendant lacks standing. The Court should therefore not consider Kadyrbayevs

facial challenge to 1519.

c. Section 1519 Is Not Unconstitutionally Vague

Kadyrbayevs vagueness argument has two prongs. First, he argues that the Court should

import into 1519 requirements, derived from Supreme Court interpretations of other statutes,

that the government prove (1) a nexus between the obstructive conduct and a judicial

proceeding and (2) a mens rea that demonstrates the defendant acted with consciousness of

wrongdoing. Def. Mot. at 11-12. As discussed below, courts have held that the nexus

requirement urged by the defendant does not apply to prosecutions under 1519 because the text

of the statute does not require it. With regard to the defendants argument that 1519s mens rea

requirement renders the statute vague, the plain language and judicial interpretations of the

statute make clear that the statute contains a scienter requirement that the defendant act

knowingly with the intent to obstruct.

The nexus requirement the defendant proposes is derived from United States v.

Aguilar, 515 U.S. 593 (1995), and Arthur Andersen LLP v. United States, 544 U.S. 696 (2005).

Aguilar addressed the language of 18 U.S.C. 1503 (prohibiting corruptly ... endeavor[ing] to

influence, obstruct, or impede, the due administration of justice in connection with a grand jury

proceeding) while Arthur Andersen dealt with 18 U.S.C. 1512(b) (prohibiting knowingly ...

corruptly persuad[ing] another person, with an intent to cause that person to withhold


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documents from, or alter documents for use in, an official proceeding). In those cases, the Court

held the evidence was insufficient to show a nexus between the obstructive conduct and actual

proceedings. See Aguilar, 515 U.S. at 599 (if the defendant lacks knowledge that his actions are

likely to affect the judicial proceeding, he lacks the requisite intent to obstruct.); and Arthur-

Andersen, 544 U.S. at 707-08(jury instructions infirm because they required no nexus between

persuasion of others to destroy documents and any particular proceeding.)

No court has applied the Aguilar 1503 nexus requirement to 1519. The Eight Circuit,

for example, has unequivocally stated that the Aguilar nexus requirement . . . that the

government must show the accused knew his actions were likely to affect a federal matter . . .

does not apply to a prosecution for the knowing falsification of documents under 1519. United

States v. Yielding, 657 F.3d 688, 712 (8th Cir. 2011). The text of 1519 requires only proof that

the accused knowingly committed one of several acts . . ., and did so with the intent to impede,

obstruct, or influence the investigation or proper administration of a federal matter. Id.; see

also United States v. Moyer, 674 F.3d 192, 208 (3rd Cir. 2012); United States v. Kernell, 667

F.3d 746, 753 (6th Cir. 2012); United States v. Gray (642 F.3d 371, 378 (2nd Cir. 2011). As the

court in Yielding explained:

The language of 1519 is materially different from the statutes considered in Aguilar and Arthur Andersen. The former forbade corruptly endeavor[ing] to obstruct, and the latter prohibited knowingly corrup[t] persau[sion]. In both cases, the Court was thus required to discern the substance of an intent requirement from statutory terms that appeared to imply one, but did not speak directly to its content. Exercising restraint based on concerns about fair warning and deference to Congress, the Court required proof that the accused knew of a natural and probable effect on a federal proceeding to establish an intent to obstruct. But in 1519, Congress spoke more directly to the requisite intent and described its scope more precisely. The statute includes no ambiguous phrase such as corruptly endeavor or knowingly corruptly persuade that calls for implication of an additional intent requirement. At some point, deference to the prerogatives of Congress, means that Congress has the right to enact a statute of substantial breadth, and restraint in assessing the reach of criminal statutes must give way to


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restraint in fashioning elements shunned by Congress in the statutory text. We think the text of 1519 gives fair warning that knowingly falsifying a document, in contemplation of a federal matter, with intent to impede, obstruct, or interfere with that matter may result in criminal liability, whether or not the obstruction was likely to succeed. That the accused's intent must be wrongful is evident from the nature of the acts prohibited, such as knowing falsification of documents, and the requisite intent to influence, obstruct, or impede an investigation or proper administration of a federal matter.

Yielding, 657 F.3d at 712-13 (citations omitted).

Although the Court need not look past the text of 1519 to reach the conclusion that

1519 contains no nexus requirement, the legislative history further confirms this interpretation.

As the Court in Moyer explained:

The Senate considered the intent requirement to be independent of the jurisdiction requirement, explaining that 1519 is meant to apply broadly to any acts to destroy or fabricate physical evidence so long as they are done with the intent to obstruct, impede or influence the investigation or proper administration of any matter, and such matter is within the jurisdiction of an agency of the United States. S.Rep. No. 107146, at 14 (2002). The Senate Report goes on to clarify: [t]his statute is specifically meant not to include any technical requirement, which some courts have read into other obstruction of justice statutes, to tie the obstructive conduct to a pending or imminent proceeding or matter. Id. at 1415; see also 148 Cong. Rec. S7419 (daily ed. July 26, 2002) (statement of Sen. Patrick Leahy) (The fact that a matter is within the jurisdiction of a federal agency is intended to be a jurisdictional matter, and not in any way linked to the intent of the defendant.).

Moyer, 694 F.3d at 210. See also Kernell, 667 F.3d at 754-55 (importing requirements from

other obstruction of justice cases over to 1519 is directly contrary to the legislative intent, as

well as having no support in the text itself) (citing Yielding); Gray, 642 F.3d at 378 (In view of

the statutes plain language, which is fully consistent with the legislative history, we decline to

read any such nexus requirement into the text of 1519.).

Similarly, there is no merit to the defendants argument that 1519 lack[s] any element

of corrupt or evil intent, or consciousness of wrongdoing. Def. Mot. at 12. On the contrary,

the statutes scienter requirement, in and of itself, lessens fair warning concerns. See United

States v. Hussein, 351 F.3d at 14; accord Hoffman Estates, 455 U.S. at 499 (scienter requirement


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may mitigate a laws vagueness, especially with respect to the adequacy of notice to the

complainant that his conduct is proscribed); Hill v. Colorado, 530 U.S. 703, 732 (2000)

(relevant laws scienter requirement ameliorates any concerns that the law fails to provide people

of ordinary intelligence a reasonable opportunity to understand what the law prohibits); United

States v. Nieves-Castano, 480 F.3d 597, 603 (1st Cir. 2007) (relevant laws scienter requirement

ameliorates any vagueness concerns).

Courts to have considered the intent requirement of 1519 have concluded that the statute

has a clear scienter requirement that eliminates any concerns regarding statutory vagueness.

Moyer, 694 F.3d at 211; and see Yielding, 657 F.3d at 713 (requirement of wrongful intent

evident from the nature of the acts prohibited); United States v. Hunt, 526 F.3d 739, 743 (11th

Cir. 2008) (This statute rather plainly criminalizes the conduct of an individual who (1)

knowingly (2) makes a false entry in a record or document (3) with intent to impede or influence

a federal investigation.); United States v. Jho, 465 F. Supp.2d 618, 637 n. 9 (E.D. Tex. 2006)

(Section 1519 contains a mens rea requirement in that it requires that the defendant act

knowingly with the intent to obstruct justice.) (emphasis in original).

For these reasons, the Court should reject the defendants vagueness challenge.

B. A Bill of Particulars Is Unwarranted

Related to Kadyrbayevs claims that the Superseding Indictment is vague is his motion

for a bill of particulars. For similar reasons, that motion is meritless. For an indictment to be

sufficient, it must contain all the elements of a crime and adequately apprise the defendant of

what he must be prepared to meet. See Russell v. United States, 369 U.S. 749, 763 (1962).

The Superseding Indictment, which sets forth the elements of each of the offenses and the

relevant time periods, is sufficient to enable the defendant to prepare his defense, avoid surprise

at trial, and to protect against double jeopardy. The defendant is entitled to nothing more,


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especially when the indictment is considered in light of the detailed Criminal Complaint and

abundant discovery provided in this case. Accordingly, the Court should deny this motion.

Based on the same legal analysis as set forth in the Governments Opposition to

Defendant Tazhayakovs Motion for a Bill of Particulars (Docket Entry 141) at pp. 5 et seq.,

which is incorporated herein by reference, Kadyrbayevs motion for a bill of particulars is

bootless. It is both procedurally barred as untimely and meritless.

Kadyrbayevs motion for a bill of particulars is based on precisely the same improper

purposes discussed in the governments response to Tazhayakovs motion. While the defendant

professes inability to discern the specific charges against which he must defend (Def. Mot. at

16) or the investigation which the defendant is alleged to have obstructed, (Id. at 18), the

Superseding Indictment is abundantly clear on both points. The answers to these questions are

even clearer when viewed in light of the detailed Criminal Complaint and the discovery

produced in this case. Both the conspiracy count and substantive obstruction of justice count

specify that the crimes took place between April 18 and 20, 2013. Both incorporate by reference

the indictments introductory allegations, which speak exclusively of the Marathon bombing, the

defendants relationship with Tsarnaev, and the defendants removal and concealment of tangible

objects from Tsarnaevs dorm room. The indictment specifies that the charged conspiracy was

to knowingly . . . conceal [a laptop computer and a backpack containing fireworks and other

items] belonging to Dzokhar Tsarnaev.

Indeed, the questions posed by the defendant in his motion make perfectly clear that he

labors under no confusion about the charges against him or the investigation he is charged with

obstructing. See Def. Mot. at 17. The defendant asks What specific acts does the government

contend obstructed justice and then poses potential answers: removal of the items from the


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dorm room; disposal of the backpack and its contents; retention of the laptop, hat, and ashtray;

failure to call the police. Id. This does not suggest any confusion whatsoever.

Most of what the defendant relies on to claim confusion about the charges he faces

amounts to little more than wordplay. For example, in claiming confusion about the significance

of the defendants decision to let a garbage truck drive away with the backpack he had thrown in

a dumpster, the defendant suggests that this raises the question whether failure to act can

constitute obstruction. Def. Mot. at 17. This somewhat metaphysical formulation misses the

more obvious relevancy of the evidence that the defendant knew Tsarnaevs backpack was being

hauled off by a garbage truck: that knowledge is probative of the defendants intent to

knowingly conceal from law enforcement a tangible object belonging to Tsarnaev, as specifically

alleged in the indictment. As a variation on this theme, the defendant then asks if the logical

corollary to the question whether failure to act as the dump truck drove off is [whether]

obstruction did not include any of the items that were still in the [defendants] apartment

laptop, hat, and jacket. Id. at 17-18. Again, this misses the more fundamental relevancy of

these objects being in the defendants apartment. Evidence that the laptop was in the

defendants apartment on April 19 makes it more likely that the defendant removed it from

Tsarnaevs room on April 18 and thus knowingly concealed it with the intent to obstruct the

investigation into the Marathon bombing.

C. The Superseding Indictment Contains no Surplusage.

The defendant claims that the Superseding Indictments references to matters such as

terrorism, the Joint Terrorism Task Forces involvement in the investigation of the Marathon

bombing, and details of the Marathon bombing are surplusage within the meaning of Fed. R.

Crim. P. 7(d). This claim lacks merit. What the defendant seeks to characterize as surplusage

are aspects of the crimes charged that bear directly on what the defendants knew and intended


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when they obstructed justice and lied to FBI agents. Such facts are relevant to the jurys

understanding of the defendants knowledge and motives to commit the crimes charged and their

intent to do so.

Rule 7(d) provides a means of protecting a defendant against immaterial or irrelevant

allegations in an indictment or information, which may, however, be prejudicial. Fed.R.Crim.P.

7(d), Advisory Committee Note; and see United States v. Fahey, 769 F.2d 829, 841-42 (1st Cir.

1985). This Court addressed the standard for striking surplusage in United States v. Gambale,

610 F. Supp. 1515, 154243 (D. Mass. 1985) (Keeton, J.). In Gambale, Judge Keeton explained

that a motion to strike surplusage is granted only if the allegations are inflammatory,

prejudicial, and irrelevant to the crime charged ... Id. The determinative question in a motion

to strike surplusage is not the prejudice, but the relevance of the allegation to the crime charged.

United States v. Sawyer, 878 F. Supp. 279, 294 (D. Mass. 1995) aff'd, 85 F.3d 713 (1st Cir.

1996) (Gorton, J.) If the evidence of the allegation is admissible and relevant to the charge,

then despite prejudice, the language will not be stricken. Id. (citation omitted). Indeed, as

courts in this circuit have explained, Language in the indictment which is information the

government, in good faith, intends to properly prove at trial cannot be stricken as surplusage, no

matter how prejudicial it may be. United States v. El-Silimy, 228 F.R.D. 52, 59 (D. Me. 2005);

see also United States v. Bravo-Fernandez, 792 F. Supp. 2d 172, 176 (D.P.R. 2011) (same).

Because the standard is so exacting, alleged surplusage is rarely stricken. Sawyer, 878 F. Supp.

at 294 (citing Gambale, 610 F. Supp. at 1543; and United States v. Scarpa, 913 F.2d 993, 1013

(2d Cir.1990)).

Thus, as an initial matter, the defendants motion is premature. The prudent course is to

reserve ruling on a motion to strike surplusage until the trial court has heard evidence that will

establish the relevance of the allegedly surplus language. United States v. Awan, 966 F.2d


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1415, 1426 (11th Cir. 1992) (citing United States v. Fahey, 769 F.2d 829, 842 (1st Cir. 1985)

(Noting that the trial court reserved ruling on motion to strike certain alleged surplusage until

after all the evidence had been submitted and then struck one of the overt acts, as to which no

evidence had been offered.). See also Sawyer, 878 F. Supp. at 295 (denying motion to strike

surplusage without prejudice to the defense renewing the motion at the close of the evidence).

Turning to the determinative question of the relevance of the allegations Kadyrbayev

would have the Court strike, a few examples of the evidence the government expects to introduce

should suffice to illustrate why those allegations are relevant to the crimes charged.

i. References to the JTTFs terrorism investigation ( 4, 14) and to Domestic and International Terrorism (Count Three).

The government expects to offer, as relevant to the defendants knowledge, motive, and

intent, evidence that the defendants were aware that the Marathon bombing was being

investigated as an act of terrorism. The evidence will also show that each of the defendants

viewed the Marathon bombing as an act of terrorism and that the defendants were aware that the

FBI was investigating Tsarnaev as a suspect in the bombing. The evidence will also show that

the defendants were aware that the media had identified Tsarnaev as one of the bombers and saw

news stories to that effect. The evidence will show that the defendants were motivated by a

desire that Tsarnaev avoid liability as one of the bombers. Key witnesses to, inter alia, the

defendants admissions and evidence collected during searches were at all relevant times

members of the JTTF and are expected to testify to their background in law enforcement.

Moreover, the question whether defendant Phillipos violation of 18 U.S.C. 1001 (a)(2)

involved international or domestic terrorism is a fact that implicates the maximum penalty for

the crime and, therefore, must be submitted to the jury and proved beyond a reasonable doubt.

See 18 U.S.C. 1001(a)(2) and Apprendi v. New Jersey, 530 U.S. 466, 484 (2000).


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ii. Reference to Casualties Caused by the Marathon Bombing ( 2) and the Capture of Tamerlan Tsarnaev ( 6).

Here too, the evidence will show the defendants were aware of the seriousness of the

Marathon bombing and of the casualties it caused. Even without evidence of the defendants

actual knowledge and the government will present such evidence the jury could reasonably

infer from the gravity of the event and the media coverage of it that the defendants were aware

of the bombing and the law enforcement investigation. The evidence will also show the

defendants knew of Tamerlan Tsarnaevs capture and death, which preceded Phillipos first lies

to the FBI.

iii. Reference to the FBIs Goal of Thwarting Other Planned Attacks ( 4)

To establish that Phillipos violated 18 U.S.C. 1001(a)(2), the government must show

that the false statement was material, i.e. had a natural tendency to influence the FBI. The nature

and contours of the FBIs investigation are relevant to the jurys consideration of materiality. To

understand how Phillipos false statements had a natural tendency to, for example, foreclose

lines of inquiry by the FBI, the jury must understand that the FBIs inquiry was broader than the

capture of Tsarnaev. The evidence will show that the FBIs inquiry was broadly aimed at

identifying any possible co-conspirators in the Marathon bombing and other potential acts of

violence.

In addition, and generally applicable to all the defendants, Kadyrbayevs attempt to

sanitize the indictment of evidence showing the nature and scope of the investigation ignores

some of the strongest evidence of the defendants knowledge and intent. The defendants own

words will show that they each viewed the investigation they were obstructing as a terrorism

investigation.


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iv. Reference to the Number of Agents Who Searched the Landfill.

Central to the jurys understanding of Kadyrbayev and Tazhayakovs conspiracy to

obstruct justice is an understanding of what objects the defendants took from Tsarnaevs room

and what they did with those objects. The government will offer in evidence the backpack

recovered from the landfill. The witness through whom the backpack will be introduced will

have personal knowledge of its recovery from the landfill. That witness will describe that

recovery, which involved an effort by numerous FBI agents. The honest and natural description

of that recovery will include a description of the scene and those present at the scene. The

recovery effort was the natural and foreseeable consequence of the defendants obstructive

conduct. Moreover, testimony concerning the recovery of the backpack will corroborate

Kadyrbayev and Tazhayakovs statements to the FBI regarding what they did with the backpack.

The defendant has identified no basis and there is no basis to sanitize such testimony to make

it appear other than how the witnesses will describe it.

For these reasons, the Court should deny the motion to strike surplusage.

III. Conclusion

For the foregoing reasons, the Court should deny the defendants motion to dismiss,

motion for a bill of particulars, and motion to strike surplusage.

Respectfully submitted,

CARMEN M. ORTIZ United States Attorney

By: /s/ John A. Capin _________________________

JOHN A. CAPIN B. STEPHANIE SIEGMANN Assistant U.S. Attorneys


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Certificate of Service

I hereby certify that I caused the above document to be served on counsel of record for the defendants by e-mail and first class mail this 25th day of April, 2014. /s/ John A. Capin ____________________________ JOHN A. CAPIN


Doc 142; Opposition to Deft Kadyrbayev's Motion to Dismiss and Bill of Particularsand to Stirke...

Documents

Transcript of Doc 142; Opposition to Deft Kadyrbayev's Motion to Dismiss and Bill of Particularsand to Stirke...