Doc 213; Dias' Motion to Suppress Statements and Therefrom Continued 052314

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA :

:

v. : Crim. No. 13-10238-DPW

:

DIAS KADYRBAYEV, et al. :

DEFENDANT KADYRBAYEV’S MOTION TO SUPPRESS STATEMENTS AND THE

FRUITS THEREFROM AS OF ATTORNEY GRIFFIN’S NOTIFICATION TO

TROOPER LALIBERTE THAT KADYRBAYEV HAS BEEN APPOINTED COUNSEL1

AND TO CEASE QUESTIONING OR, IN THE ALTERNATIVE, GRANT

KADYRBAYEV’S APPLICATION TO QUESTION GOVERNMENT OFFICIALS

INTRODUCTION

This Memorandum of Law is submitted on behalf of Defendant Dias Kadyrbayev in

support of his motion to suppress pursuant to the Fifth, Sixth and Fourteenth Amendments to the

United States Constitution, the Massachusetts Constitution, the Massachusetts Rules of

Professional Conduct and their Application to this Matter via 28 U.S.C. Section 530B (“McDade

Amendment”), and this Court’s inherent Supervisory Powers.

The arguments advanced are part of the totality of circumstances analysis for

suppression after examining the detention, arrest, delay in presentment and waiver issues.

Alternatively, even if this Court finds that the stop and/or arrest and/or Miranda waiver were

valid, Kadyrbayev submits that evidence could well be developed that would constitute separate

and independent grounds to suppress the statements and its fruits.

1 Massachusetts General Law Pt. III, Title I, Chapter 211D, Section 5 and 6(b) establish the

authority by which Kadyrbayev was assigned counsel. Section 6(b) clearly states: “The private

counsel division shall also be assigned to represent persons in such other proceedings as the chief

counsel shall determine to be necessary.” See also Exhibit A, par. 4 (“Affidavit of Deputy Chief

Counsel Nancy T. Bennett, dated Apr. 24, 2014).

Case 1:13-cr-10238-DPW Document 213 Filed 05/23/14 of 13

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The right to counsel has long been seen as the most important right afforded criminal

defendants. Thus, any intentional or negligent Government actions which infringe upon that

right must be scrutinized under the most exacting standards.

REQUEST FOR ORAL ARGUMENT PURSUANT TO RULE 7.1(D)

Oral argument is requested to address any issues not agreed to or that the Court may wish

to hear additional argument on.

PARTIES CONFERRED PURSUANT TO RULE 7.1(A)(2)

The parties have conferred and attempted in good faith to resolve or narrow the issue to

no avail. The Court ordered submission of legal memoranda on this issue during the pre-trial

hearings conducted the week of May 12, 2014.

PROCEDURAL AND FACTUAL BACKGROUND

On April 25, 2014, Kadyrbayev, through undersigned counsel, submitted a legal

memorandum in support of his application to suppress statements and any fruits therefrom based

on a number of factors. One of those factors raised the continuing questioning of Kadyrbayev

after being advised that he was a represented party by Attorney Griffin and that all questioning

should cease and not continue. See, e.g., Brief of Kadyrbayev, April 25, 2014, n. 2; Exhibit A.

On May 9, 2014, the Government submitted its response to Kadyrbayev’s motion to

suppress. On this particular legal issue, the Government’s entire response consisted of one (1)

paragraph on page 44 of its brief, see Exhibit A, asserted that “both defendants had already

waived their Miranda rights and right to counsel.” The Government further contended that

Attorney Griffin had not “met or been retained by the defendants or their family members to

represent them. Indeed, Attorney Griffin did not even know the names of the persons he

allegedly represented.” See Government Response, May 9, 2014, p. 44. While those particular


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facts may be accurate, they are not dispositive.

Lastly, the Government contended that under Moran v. Burbine, 475 U.S. 412 (1986),

“defendant’s waiver of his Miranda rights is valid even though the defendant is not informed that

an attorney retained without his knowledge by a third person has asked that the defendant not be

questioned.”

During pre-trial hearings the week of May 12, 2014, after this issue was raised and at the

direction of the Court, the Government provided details surrounding this issue. On May 15,

2014, the Government submitted a three (3) page “Report to Court Re: Overture to State Police

by CPCS Attorney,” which had attached three (3) pages consisting of three (3) separate E-Mails

between, variously, Trooper Laliberte, FBI Special Agent Timothy Quinn and AUSA John

Capin. See Exhibit B.

Contrary to the previous day’s assertions that Trooper Laliberte had not advised anyone

of the phone call by Attorney Griffin, let alone the contents of same, the Government now admits

that Special Agents Azad, Dolan and Blane did have knowledge of the phone call and at least

some of its contents. In fact, according to the Government Report, “Azad did not relay to the

defendants any aspect of what the detective told him,” see Exhibit B, page 2, nor did Laliberte

make any attempt, to comply with Massachusetts constitutional law and advise Kadyrbayev.

Laliberte acknowledges that Attorney Griffin advised him that he (1) represents the

UMass students at the barracks—of which only Kadyrbayev, his co-defendant and his girlfriend

could be—and (2) that he did not want them answering any questions. The Trooper has likewise

admitted that he advised Attorney Griffin, despite Agents consulting with the U.S. Attorney’s

Office to obtain complaint approval, that none of the parties were under arrest. Thus, it seems

that Laliberte violated Kadyrbayev’s right to counsel under the Massachusetts Constitution by


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failing to comply with the legal duty imposed upon him by the Massachusetts Supreme Judicial

Court in Commonwealth v. Mavredakis, 430 Mass. 848 (2000).

But perhaps the most important revelation in Exhibit B are the contradictions between

Laliberte and the federal agents regarding what took place that evening. The Government claims

that “[n]one of those agents is aware of the substance of Laliberte’s email to Special Agent

Quinn[,]”see Exhibit B, p.2 (emphasis added), despite the fact that the Government attached an

E-Mail from Trooper Laliberte wherein he states that “[a]fter hanging up with the attorney, I then

went into the hallway and told one of the male federal agents (I do not know [sic] whether it was

FBI or DHS), involved in interviewing the male student, about the phone call and the substance

of the conversation between the caller and me, and what the caller had said about representing

him and not wanting him to answer any questions. Shortly after giving the agent this

information, I left the barracks.” Id. at 5 (emphasis added).

Likewise, Attorney Griffin, Attorney Bennett and Trooper Laliberte all indicate that at

the time of Attorney Griffin’s phone call questioning was complete. However, the Agents

apparently were not done with the questioning in the first part of the evening, and later six agents

accompanied defendants into their apartment and further continued the interrogation. Agent

Walker testified that he was present when Agent Azad contacted the U.S. Attorney’s Office at

some point(s) through the evening in an effort to determine whether an arrest was authorized.

Without further, limited exploration of this contact(s), we do not know whether any government

attorneys knew about the Griffin call and his instruction to cease all interrogation. These

material discrepancies raise serious credibility issues warranting Kadyrbayev’s request for

discovery and a hearing on this issue.


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ARGUMENT

This Court must decide, as an issue of first impression, whether government (mis)conduct

which clearly violates, at the very minimum, the Massachusetts State Constitution, and

constitutional protections under federal due process.

The inconsistent and unclear representations of the Government on this issue call for a

fair and just exploration of the facts. “The ends of criminal justice would be defeated if

judgments were to be founded on a partial or speculative presentation of the facts. The very

integrity of the judicial system and public confidence in the system depend on full disclosure of

all the facts, within the framework of the rules of evidence.” U.S. v. Nixon, 418 U.S. 683, 709

(1974) (emphasis added). “To this end, we have placed our confidence in the adversary system,

entrusting to it the primary responsibility for developing relevant facts on which a determination

of guilt or innocence can be made.” U.S. v. Nobles, 422 U.S. 225, 230 (1975).

For the reasons set forth below, Kadyrbayev respectfully requests that this Court

authorize a testimonial hearing so that defendants and the public-at-large may obtain “full

disclosure of all the facts[.]” Nixon, 418 U.S. at 709.

POINT I

THE GOVERNMENT VIOLATED THE DEFENDANT’S RIGHT TO

COUNSEL UNDER THE MASSACHUSETTS CONSTITUTIONS

“The existence of [the right to counsel] is clear. It has two sources.” Michigan v.

Jackson, 475 U.S. 625, 629 (1986). “[T]o deprive a person of counsel during the period prior to

trial may be more damaging than denial of counsel during the trial itself.” Moulton, 474 U.S. at

484. When Attorney Griffin infomed Trooper Laliberte that he represented the defendants and to

to cease questioning, Trooper Laliberte’s only “duty” under state law was to “immediately” “stop


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[the] questioning” and “apprise [Kadyrbayev] of a specific communication from [Attorney

Griffin] that bore directly on the right to counsel.” Commonwealth v. Mavredakis, 430 Mass.

848, 860-61 (2000). See also O’Laughlin v. O’Brien, 577 F.3d 1, n. 3 (noting the conclusion in

Mavredakis “holding that the police have a duty to inform a criminal defendant of his lawyer’s

efforts to contact him”). The Trooper’s failure to “apprise” Kadyrbayev is an “unconstitutional”

interference with Kadyrbayev’s right to counsel. Id. at 862. This obligation affords the suspect a

choice, id. at 861, speak with the lawyer or decline to speak with the lawyer.

Here, Kadyrbayev contends that a knowing, intelligent and voluntary waiver was never

made but that even if this court did find that the Government met its burden, and a valid waiver

was made, the “consequence of the failure to so inform [Kadyrbayev] is that any waiver of rights

that has been given becomes inoperative for further admissions. Only that part of the

interrogation is admissible which the prosecution proves to have taken place before the failure to

inform occurred.” Id. at 861 (internal citations and quotation marks omitted).

The inconsistencies between the representations prosecutors have made to the court, the

testimony of various agents, and the unsworn statements made in Exhibit B, give rise to the

potential that the Government intentionally or otherwise interfered with Kadyrbayev’s right to

counsel. The “prosecutor and police have an affirmative obligation not to act in a manner that

circumvents and thereby dilutes the protection afforded by the right to counsel.” Moulton, 474

U.S. at 171.

At the initial hearings, the “formal proceedings” argument was raised in defense of the

Government’s conduct. However, while the Sixth Amendment guarantees the accused the right

to counsel after the initiation of formal charges, that is the floor, not the ceiling. “The Sixth

Amendment guarantees the accused, at least, after the initiation of formal charges . . .” Id. at


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487. To that end, this Court noted in U.S. v. Boskic, 2006 WL 1540488, at *7, the Sixth

Amendment attaches when formal charges have been initiated “or when the government has

committed itself to prosecute.” (Internal citations and quotation marks omitted). In the instant

case, the Government arguably committed itself to prosecute, as it spent hours upon hours

detaining and questioning Kadyrbayev.

Regardless, if Government agents (lawyers or nonlawyers) “obtain[ed] incriminating

statements by knowingly circumventing the accused’s right to have counsel present in a

confrontation between the accused and a state agent[,]” then the “Sixth Amendment is violated.”

Id. at 487 and n. 14 (“The Sixth Amendment protects the right of the accused not to be

confronted by an agent of the State regarding matters as to which the right to counsel has

attached without counsel being present.”). Here, the Government was on notice that Attorney

Griffin represented Kadyrbayev, at the very least, once he spoke to Trooper Laliberte.

The Government will argue that all of this is of no moment because the Massachusetts

Constitution is not applicable to Federal authorities or in federal courts. Without a further

necessary development of the facts, we do not know whether federal actors’ involvement was

sufficient to rise to the levels required under federal case law to suppress any and all statements

subsequent to the attorney’s call. Complete reliance on Moran is misplaced. The Court in

Moran, before reaching its holding, noted several predicates upon which its holding seems

grounded—predicates which do not exist in this case. Initially, it was noted that the waiver was

“uncoerced,” id. at 422, whereas that finding has not been made in the case at bar. Further, the

Court was satisfied “that there was no conspiracy or collusion on the part of the police.” Id. at

423.

Likewise, the Court recognized that “[n]othing we say today disables the States from


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adopting different requirements for the conduct of its employees and officials as a matter of state

law.” Id. at 428. Of course, this opinion decided more than ten years before the McDade

Amendment, which reserves to the States the right to adopt different requirements as a matter of

“state law,” could not have contemplated that Massachusetts has, in fact, adopted its own “state

law” which 28 U.S.C. Section 530B makes applicable to the federal authorities.

But, perhaps, most important, the Court acknowledges that its legal analysis was limited

to the Miranda question, and not an analysis of Massachusetts law or RPCs, and not the Due

Process rights of Kadyrbayev, all of which he asserts. “We do not question that on facts more

egregious than those presented here police deception might rise to a level of a due process

violation.” Id. at 432. See, infra, Point III.

POINT II

THE ETHICAL VIOLATIONS COMMITTED BY VARIOUS GOVERNMENT

ACTORS REQUIRES SUPPRESSION OF KADYRBAYEV’S STATEMENTS

AND ANY FRUITS THEREFROM

Kadyrbayev submits that pursuant to federal and Massachusetts law, as of Attorney

Griffin’s phone call, he was a represented person, and therefore those Massachusetts Rules of

Professional Conduct governing how attorney’s, and their agents, deal with same must be given

teeth. Pursuant to 28 U.S.C. Section 530B, an “attorney for the Government shall be subject to

State laws and rules, and local federal court rules, governing attorneys in each State where such

attorney engages in that attorney’s duties, to the same extent and in the same manner as other

attorneys in that state.” (emphasis added). Thus, any Federal attorneys whose work touches

upon the Commonwealth’s sovereignty are bound by Massachusetts law and rules. See also 28

C.F.R. Section 77.3 (“attorneys for the government shall conform their conduct and activities to


9

the state rules and laws”). The federal agents, having been told by Laliberte of the attorney’s

representation, were agents of the prosecutors and their failure to observe the RPC can be

imputed here.

Likewise, just as the Government lawyers are bound by both Massachusetts law and

rules, so, too, are the non-lawyer investigative agents under their control. See 28 C.F.R. Section

77.4(f) (“Investigative Agents. A Department attorney shall not direct an investigative agent

acting under the attorney’s supervision to engage in conduct under circumstances that would

violate the attorney’s obligations under section 530B.”). Thus, the federal agents, according to

Federal law, are not simply bound by the Massachusetts RPC, but also Massachusetts law, which

would include the “right[s]” created under Mavredakis, at 861.

A “lawyer shall not communicate about the subject of representation with a person the

lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the

consent of the other lawyer or is authorized by law to do so.” Mass. RPC 4.2 (emphasis added).

Thus, if the prosecutors in this case, or any other attorneys for the Government, e.g., the FBI or

DHS, were aware of Attorney Griffin’s phone call, a serious ethical question arises. See, e.g.,

infra, Thomas at 112, n.3 (“The enforcement officials are agents of the prosecuting party[.]”);

U.S. v. Pinto, 850 F.2d 927, 934 (2d Cir 1988) (Noting that prosecutors are bound by local RPCs,

“as are non-attorney government law enforcement officers when they act as the alter ego of

government prosecutors[.]” (internal citations and quotation marks omitted). A “lawyer having

direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the

person’s conduct is compatible with the professional obligations of the lawyer[.]” See also

Mass. RPC 5.3(c) (“a lawyer shall be responsible for conduct of such a person that would be a

violation of the Rules of Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders


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or with the knowledge of the specific conduct, ratifies the conduct involved[.]”).

In the instance case, there are presently two indicia that require further exploration as to

the USAO knowledge of the events in question. First, Special Agent Walker testified that the

Agents were in contact with the USAO, briefing same in an attempt to obtain charge approval.

Second, Agent Azad corroborated Special Agent Walker’s account that they were in contact with

the USAO regarding the night’s events, and we know from Exhibit B that Trooper Laliberte

advised a “male agent2” and Special Agent Azad, amongst others, was aware of the phone call.

POINT III

THE TOTALITY OF THE CIRCUMSTANCES WARRANTS SUPPRESSION

“The history of American freedom is, in no small measure, the history of procedure.”

Malinski v. N.Y., 324 U.S. 401, 414 (1945) (Frankfurter, J., concurring). In this case, even if this

Court does not find that Kadyrbayev’s arguments in Points I and II warrant exclusion, the

cumulative effect of the “Government’s conduct” “may nonetheless reflect such unfairness and

want of consideration for justice” as to justify suppression. Boskic, 2006 WL 1540488 at *19. In

fact, Justice Scalia, in a case decided five terms ago, noted that the defendant “may also seek on

remand to press any claim he might have that his Sixth Amendment waiver was not knowing and

voluntary, e.g., his argument that the waiver was invalid because it was based on

misrepresentations by police as to whether he had been appointed a lawyer, c.f., Moran.”

2 The defense is hard-pressed to understand why the Government will not ascertain which Agents

Trooper Laliberte claims to have relayed the “substance” of his phone call with Attorney Griffin

to. The Trooper and Agents seemingly had very little difficulty recalling even the most minute

inculpatory details, but the Government does not offer any explanation as to why, if Trooper

Laliberte cannot recall which “male agent” he advised, they simply do not show Trooper

Laliberte pictures of all the “male agent[s]” present that evening.


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Montejo v. Louisiana, 556 U.S. 778, 798 (2009) (emphasis added).

POINT IV

NEED FOR DISCOVERY TO RESOLVE MATERIAL FACTUAL DISPUTES

The exact timing of this phone call is potentially critical, as it relates to when, precisely,

inculpatory statements were allegedly made in comparison to when authorities knew that

Kadyrbayev was represented. Material issues of fact are in dispute. For example, despite having

surveillance video from the barracks on the evening in question, which the government utilized

in their case-in-chief, as well as access to the barracks phone logs, recorded lines and Trooper

schedules or pay stubs, Exhibit B indicates that Trooper Laliberte “believes he finally finished

his work day between 11:00 p.m. and midnight . . . [and] recalls that he spoke to the attorney a

few minutes before he left for the day.” See Exhibit B, p. 2 (emphasis added).3 Assuming,

arguendo, that this is accurate, this would indicate that the call transpired potentially during the

10 o’clock hour. Yet, various Special Agents testified that Kadyrbayev’s allegedly inculpatory

admissions did not occur until several hours into the interview and closer to midnight, as his

interview did not begin until closer to 9:00 p.m., thus calling into question the claim that FBI

Agents were not notified of the attorney call until, conveniently, the inculpatory admissions were

complete.

Other than broad generalizations, the Exhibit is silent as to when the FBI Agents claim to

have been alerted as to the call, though Laliberte indicates in his E-Mail that “[p]rior to this

phone call, one of the male agents had told me that they were nearly finished with speaking with

the student and that they would be providing the student with a ride home shortly, likely within

3 Certainly the Trooper submitted his exact hours worked that day for time and payroll. Those

records would reflect the exact hours worked, rather than his recollection a year later.


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about 10 minutes, and that he wasn’t being arrested.” See Exhibit B, p.4. Yet again, if Laliberte

spoke with Attorney Griffin a “few minutes” before he went home between 11 and midnight,

why were the defendants still at the barracks for another 3-5 hours, and, why was he advised that

the individuals were not being arrested when testimony clearly indicates that the Agents were

contacting an AUSA(s), thereby raising the RPC/McDade issue, if not for that evening then

certainly for the statements elicited the following day, April 20. In short, the timeline contained

within Exhibit B suffers from serious internal inconsistencies, and there are even greater gaps

when one tries to reconcile the times with the court room testimony of the various agents. In

light of these various inconsistencies and ambiguous claims, which potentially impact

Kadyrbayev’s right to counsel, Due Process and RPC issues, Kadyrbayev respectfully requests

that this Court allow testimony on this issue.


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CONCLUSION

For all the reasons set forth herein, it is respectfully requested that the Court grant

Kadyrbayev’s motion to suppress his statements and evidence derived therefrom or, in the

alternative, order a testimonial hearing wherein the Government is required to produce discovery

and witnesses and the defense is permitted the opportunity to cross-examine same and call its

own witnesses if necessary.

Dated: Westfield, New Jersey

May 23, 2014

Respectfully submitted,

/s/ Robert G. Stahl

ROBERT G. STAHL

JOSHUA F. McMAHON (on the brief)

LAW OFFICES OF ROBERT G. STAHL, LLC

220 St. Paul Street

Westfield, New Jersey 07090

(908) 301-9001

[email protected]

Attorneys for Defendant Dias Kadyrbayev

I hereby certify that this Brief and all accompanying exhibits were served upon counsel of record

for the government by electronic mail this 23rd

day of May, 2014.

s/ Robert G. Stahl

_________________________

By: ROBERT G. STAHL

cc: AUSAs John Capin & Stephanie Siegmann (via email)

Nicholas Wooldridge, Esq. (via email)

Derege B. Demissie, Esq. (via email)


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