Case 1:13-cr-10238-DPW Document 141 Filed 04/24/14 Page 1 of 11

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS UNITED STATES OF AMERICA v. DIAS KADYRBAYEV (1), AZAMAT TAZHAYAKOV (2), and ROBEL KIDANE PHILLIPOS (3), Defendants. ) ) ) ) ) ) ) ) )

Crim. No. 13-10238-DPW

GOVERNMENTS OPPOSITION TO DEFENDANT TAZHAYAKOVS MOTION FOR A BILL OF PARTICULARS Defendant Azamat Tazhayakov (Tazhayakov) is not entitled to a bill of particulars. The Superseding Indictment provides ample details and sufficiently informs the defendant and his co-defendants of the nature of the alleged offenses for which they are charged. Furthermore, as discussed in detail below, the defendants= motion is simply being used as an illegitimate discovery tool designed to obtain a preview of the government=s trial evidence and legal theories. Accordingly, the Court should deny the defendants motion. I. BACKGROUND On May 1, 2013, the defendant was charged in a Criminal Complaint with Dias Kadyrbayev (Kadyrbayev) with conspiring to obstruct justice by knowingly destroying, concealing, and covering up tangible objects belonging to Dzhokhar Tsarnaev, namely a laptop computer and a backpack containing fireworks, with the intent to impede, obstruct, and influence the criminal investigation of the Marathon bombings, in violation of 18 U.S.C. 371. See Complaint Aff. at 3. The 14-page complaint affidavit describes the defendants relationship to Tsarnaev, the suspected Marathon bomber, how they obstructed justice, and their motive to obstruct justice. Indeed, the complaint affidavit indicates that each of the defendants (Kadyrbayev, Tazhayakov, and Phillipos) all confessed and admitted that on the evening of 1

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April 18, 2013, they removed Tsarnaevs backpack from Tsarnaevs dormitory room, and Kadyrbayev and Tazhayakov also further admitted that they agreed to get rid of [the backpack] after concluding from news reports that Tsarnaev was one of the Boston Marathon bombers. Compl. Aff. at 21. The defendants stipulated to pre-trial detention and waived their right to a preliminary hearing. If the defendant was confused about the facts supporting the charge that he conspired to obstruct justice, the preliminary hearing would have been the time to seek clarification. On August 29, 2013, the grand jury returned a superseding indictment against Kadyrbayev, Tazhayakov, and Phillipos charging them with committing obstructive conduct during and related to the FBIs Joint Terrorism Task Force (JTTF) terrorism investigation of the Boston Marathon bombings. See Superseding Indictment at 1-4. According to the indictment, the FBIs JTTF led the investigation of the bombings. During this terrorism investigation, searches were conducted. As explained in the introductory allegations of the Superseding Indictment, on April 21, 2013, the FBI searched Dzhokhar Tsarnaevs dormitory room pursuant to a search warrant. Three days before the FBI executed its search, on the evening of April 18, 2013, after the FBI posted the photographs of Bomber 1 and Bomber 2, Kadyrbayev, Tazhayakov, and Phillipos entered Tsarnaevs dormitory room, removed several items from the room, including Tsarnaevs laptop computer and a backpack containing fireworks, and brought them to the Carriage Drive apartment. Subsequently, between approximately 10:00 p.m. on April 18, 2013 and 1:22 p.m. on April 19, 2013, Kadyrbayev placed Dzhokhar Tsarnaevs backpack, which contained several items including fireworks and a jar of Vaseline, in a garbage bag and placed it in a dumpster outside the Carriage Drive apartment.
1

The original indictment returned on August 8, 2013 was substantially identical to the superseding indictment except it had added a new defendant -- Phillipos -- and two additional false statement counts that pertained solely to the new defendant, Phillipos. As indicated in a filing by Phillipos own attorneys, Phillipos was not charged in the original indictment because he was engaged in pre-indictment discussions with the government. 2

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On April 19, 2013, the Carriage Drive apartment complexs dumpster was emptied and its contents were moved to a landfill in New Bedford, Massachusetts. Over the course of two days, April 25, 2013 and April 26, 2013, more than 30 federal agents searched this landfill for the evidence Kadyrbayev placed in the trash. On April 26, 2013, Dzhokhar Tsarnaevs backpack was found at the landfill. Id. at 11-13. These introductory allegations are incorporated into each count. Counts One and Two of the Superseding Indictment charge defendants Kadyrbayev and Tazhayakov with conspiring to obstruct justice and obstruction of justice based upon their actions during a period of three days or 72 hours -- between April 18 and April 20, 2013 -including removing Tsarnaevs backpack and laptop computer from Tsarnaevs dormitory room on the evening of April 18, 2013 and, later that evening, placing the backpack, which contained emptied fireworks containers, into a garbage dumpster in the vicinity of their apartment located at 69A Carriage Drive, New Bedford, Massachusetts (69A Carriage Drive apartment). See Superseding Indictment at 4, 6-10. Count One of the Superseding Indictment, the conspiracy count, further alleges ten overt acts that the defendants were alleged to have committed in furtherance of the conspiracy. See id. at 7-8. Since the defendants were charged by criminal complaint, the government has produced extensive discovery. See, e.g., discovery log produced as Exhibit 2 to Sealed Governments Opposition to Motion to Compel Discovery. The government has produced almost 10,000 pages of documents including the defendants own written and oral statements, interview reports of witnesses, search materials, phone records, laboratory reports, business records, immigration records, and translations of text messages. Additionally, the government has also produced electronic copies of the defendants computers and mobile phones, which were obtained by

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consensual searches and search warrants. Finally, as directed by the Court, on January 31, 2014, the government produced preliminary witness and exhibit lists to the defendants.
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On April 11, 2014, more than nine months after the Indictment was returned, defendant Tazhayakov moved for a bill of particulars requesting (1) the exact time the conspiratorial agreement was formed and the statements or events that will be used to prove its existence; (2) any and all statements the government intends to rely upon at trial to prove the charged conspiracy; (3) the evidence the government intends to use to prove defendant Tazhayakov joined the conspiracy; (4) each and every overt act committed by defendant Tazhayakov; (5) each and every act that the government intends to rely upon at trial to prove the obstruction count; (6) the location(s) where the government alleges the defendants obstructed justice; (7) the tangible objects that form the basis of the obstruction count; (8) the governments theory of prosecution of the acts allegedly done by Mr. Tazhayakov; and (9) details about the type of aiding and abetting allegedly committed by each defendant. The Court should deny the defendants motion because it is procedurally defective, the indictment provides the essential facts and sufficient details about the crimes charged, and the defendants motion is designed to obtain disclosure of evidence and advance notice of the governments legal theories and trial strategies. II. Argument 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,

In response to the defendants stated difficulties in searching and reviewing the forensic copies of the computer evidence, the government produced copies of the exhibits it had identified on its preliminary exhibit list from the defendants computers and Tsarnaevs laptop computer (one of the tangible objects that is the subject of the Complaint and Superseding Indictment). 4

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especially when considered in light of the discovery already provided to him. Accordingly, the Court should deny his motion. A. The Motion is Procedurally Defective.

Rule 7(f) of the Federal Rules of Criminal Procedure governs bill of particulars and provides: The court may direct the government to file a bill of particulars. The defendant may move for a bill of particulars before or within 14 days after arraignment or at a later time if the court permits. Ordinarily, a motion for a bill of particulars is made within 14 days of a defendants arraignment. That timing is generally appropriate because it should be rather quickly apparent to a defendant whether the indictment adequately advises him of what he is charged with. United States v. Mehanna, Crim. No. 09-10017-GAO, 2011 WL 796400, *2 (D. Mass. Mar. 1, 2011) (denying motion for bill of particulars filed long after the defendants arraignment, which raised the Courts suspicion that he is not so much confused about what he is charged with). Here, like in Mehanna, the defendants motion should be denied. The defendant is not confused about the crimes he is charged with committing but rather is seeking an advance preview of the governments evidence and theories of liability. For instance, there can be no doubt from the language of the indictment what tangible objects form the basis for the obstruction count. The Superseding Indictment alleges that on April 19, 2013, after the FBI had posted photographs of the suspected Boston Marathon bombers and defendant Kadyrbayev exchanged text messages with Tsarnaev, the defendants went inside Tsarnaevs dormitory room and removed several items, which they believed belonged to Dzhokhar

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Tsarnaev, including a backpack, fireworks, a jar of Vaseline, and a laptop computer from the room. Superseding Ind. at 4, 8. The Superseding Indictment further alleges that subsequently that night, defendant Kadrybayev, with the knowledge and agreement of Tazhayakov, put Dzhokhar Tsarnaevs backpack, which contained several items including the fireworks and a jar of Vaseline, in a garbage bag and placed it in a garbage dumpster outside the Carriage Drive apartment. Id. These actions clearly fall within the scope of Section 1519, and the indictment alleges, they were done to alter, destroy, conceal and cover up evidence relating to the JTTF investigation of the bombings. Id. at 2, 4-10. Accordingly, because the text of the indictment is clear as to what items form the basis of the charges, the defendants cannot credibly claim that he cannot prepare a defense without further information. Thus, he is not entitled to more specifics on this ground or his ten other requests. In addition, because he failed to obtain the Court=s permission to file this motion more than eight months late, it should also be denied on procedural grounds. B. The Indictment is Sufficiently Detailed to Inform Defendant of Offenses Charged and Enable him to Prepare for Trial.

A motion for a bill of particulars need be granted only if the accused, in the absence of more detailed specification, will be disabled from preparing a defense, caught by unfair surprise at trial, or hampered in seeking the shelter of the Double Jeopardy Clause. United States v. Sepulveda, 15 F.3d 1161, 1192-93 (1st Cir. 1993). A bill of particulars is not a matter of right. Indeed, as the First Circuit has noted, they are seldom employed in modern federal practice. Id. at 1192. A bill of particulars is appropriate only Awhere the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused.@ United

The indictment alleges that while inside Tsarnaevs dormitory room, Kadyrbayev found a jar of Vaseline and told Tazhayakov that he (Kadyrbayev) believed Tsarnaev had used it to make bombs. Superseding Ind. at 7-8. After this discussion, the defendants chose to remove the Vaseline jar and the fireworks from the dormitory room. 6

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States v. Torres, 901 F.2d 205, 234 (2nd Cir. 1990); see United States v. Andrus, 775 F.2d 825, 843 (7th Cir. 1985) (bill required only when indictment so general that it fails to advise defendant of the specific acts charged). Because the Superseding Indictment clearly details the specific facts underlying the two offenses charged and the offenses were alleged to have been committed during an extremely narrow period of time, this Court should deny the defendants motion. See United States v. Paiva, 892 F.2d 148, 153-55 (1st Cir. 1989) (upholding denial of bill of particulars, in part, because time periods alleged in indictment as to when crimes took place -early 1983 and fall 1983 -- were sufficiently narrow). The decision to grant or not a request for a bill of particulars rests with the sound discretion of the trial court. United States v. Tarvers, 833 F.2d 1068, 1076 (1st Cir. 1987) (The district courts have broad discretion in ruling upon motions for bills of particulars.). When exercising this discretion, a court must examine the totality of the information available to the defendant, including the indictment and general pre-trial discovery, and determine whether in light of the charges that the defendant is required to answer, the filing of a bill of particulars is warranted. United States v. Gibson, 175 F. Supp. 2d 532, 536 (S.D.N.Y. 2001). Where, as here, an indictment adequately details the offenses charged and the government has produced extensive pre-trial discovery, a bill of particulars is unnecessary. See Sepulveda, 15 F.3d at 1192 (indictment sufficiently particular if it elucidates the elements of the crime, enlightens a defendant as to the nature of the charge against which [the defendant] must defend, and enables [the defendant] to plead double jeopardy in bar of future prosecutions for the same offense.). Moreover, the Court should also deny the defendants requests for facts relating to issues the government is not required to prove such as the specific date, time, and place that the conspiracy was formed. See United States v. Dimasi, Crim. No. 09-10166-MLW, 2011 WL

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468213, *4 (D. Mass. Feb. 4, 2011) (declining to order government to provide particulars it is not required to prove, including specific dates of conspiracy). Further, federal courts have repeatedly emphasized that a bill of particulars is not a discovery tool to compel the government to detail its evidence in advance of trial. See United States v. Stryker Biotech, LLC, Crim. No. 09-10330-GAO, 2010 WL 2900684, *3 (D. Mass. July 21, 2010) (A bill of particulars is not a tool of discovery, and its purpose is not to obtain disclosure of evidence, witnesses to be offered at trial, or the governments legal theories.); United States v. Armocida, 515 F.2d 49, 54 (3d Cir. 1975) (defendant=s Arequest for the >when, where and how= of any overt acts not alleged in the indictment was tantamount to a request for >wholesale discovery of the Government=s evidence,= which is not the purpose of a bill of particulars@). Nor is it a way to require the government to describe the precise manner in which the government alleges the crimes were committed or explain the legal theories it expects to advance at trial. See, e.g., United States v. Glecier, 923 F.2d 496, 502 (7th Cir. 1991) (defendants not entitled through bill of particulars to obtain details of how government will prove offense); United States v. Gabriel, 715 F.2d 1447, 1449 (10th Cir. 1983) (A bill of particulars may not be used to compel the Government to disclose evidentiary details or to explain the legal theories upon which it intends to rely at trial.) (citations omitted); United States v. Mitlof, 165 F. Supp. 2d 558, 569 (S.D.N.Y. 2001) (AThe Government may not be compelled to provide a bill of particulars disclosing the manner in which it will attempt to prove the charges, the precise manner in which the defendant committed the crime charged, or a preview of the Government=s evidence or legal theories.@). It is exactly the improper purposes discussed above that underlie the defendants request for particulars. In his motion, Tazhayakov faults Count Two with not specifying whether he is charged either as a principal or as an aider and abettor and requests the governments theory of 8

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prosecution against Tazhayakov, to identify which defendants are alleged as aiders and abetters, and details about the type of aiding and abetting allegedly committed by each defendant. Tazhayakov, however, is not entitled to this information or to restrict the governments theories of liability at trial using a bill of particulars. It is well established that the government need not elect between charging a defendant as a principal and as an aider or abettor. United States v. North, 910 F.2d 843, 913 (D.C. Cir.), modified in part on other grounds, 920 F.2d 940 (D.C. Cir. 1990); see United States v. Black-White, Crim. No. 11-10416DJC, 2013WL 2155297, *4 (May 16, 2013) (concluding government is free to proceed against [defendant] under multiple theories of liability for the same offense through a single count.); United States v. Keene, 341 F.3d 78 (1st Cir. 2003) (aiding and abetting is implicit in indictments for substantive offenses.); accord United States v. Masson, 582 F. 2d 961, 963 (5th Cir. 1978) (finding count that charged defendant with a substantive offense and aiding and abetting not duplicitious). Accordingly, the government should to be free to prove Tazhayakov guilty of Count Two as a principal, aider and abettor, or co-conspirator under Pinkerton. In addition to seeking advance notice of the governments legal theories at trial, in his motion, the defendant requests details regarding all of the evidence the government will use at trial to prove the conspiracy and substantive obstruction charge. As described above, that is not the purpose of a motion for a bill of particulars. Moreover, courts have repeatedly denied requests for bill of particulars related to conspiracy charges. A[A] conspiracy charge under '371 is sufficient as long as it (1) charges that there was an agreement, (2) describes the unlawful acts toward which the agreement was directed, and (3) charges that the defendants committed an Additionally, for the reasons stated in the Governments Opposition to the Defendant Tazhayakovs Motion to Dismiss, the defendants duplicity argument lacks any merit and has been rejected by every court to consider this issue. Aiding and abetting is an alternate theory of liability for a substantive offense. Accordingly, Count Two only charges a single substantive offense, which can be proved by evidence that the defendant committed the act himself or by aiding and abetting another in the commission of the offense. 9
4 4

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overt act in furtherance of the agreement.@ United States v. Tarvers, 833 F.3d 1068, 1075 (1st Cir. 1987) (citation omitted). The Superseding Indictment easily meets that standard. The defendants requests for (1) the exact time the conspiratorial agreement was formed and the statements or events that will be used to prove its existence; (2) any and all statements the government intends to rely upon at trial to prove the charged conspiracy; (3) the evidence the government intends to use to prove defendant Tazhayakov joined the conspiracy; and (4) each and every overt act committed by defendant Tazhayakov should therefore be denied. Generally, defendants do not need detailed evidence about the conspiracy in order to prepare for trial properly. United States v. Steele, 83 F. Supp. 2d 340, 342 (N.D.N.Y. 2000) (quoting United States v. Feola, 651 F. Supp. 1068, 1132 (S.D.N.Y. 1987)). Accordingly, defendants are not entitled, by way of a bill of particulars, to details such as how and when a conspiracy was formed, as well as when each participant entered it. Id.; see United States v. Rosenthal, 793 F.2d 1214, 1227 (11th Cir. 1986) (government not required to provide defendant with all overt acts that might be presented at trial); United States v. DiCesare, 765 F.2d 890, 897 (9th Cir. 1985) (defendants could not obtain the names of any unknown conspirators, discover the exact date on which the conspiracy began, or discover all overt acts by means of a bill of particulars); United States v. Persico, 621 F.Supp. 842, 868 (S.D.N.Y.), aff=d, 774 F.2d 30 (2nd Cir. 1985) (defendants not entitled to discover means by which the government claims they performed acts in furtherance of the conspiracy charged, nor the evidence the government intends to adduce to prove their criminal acts, nor details as to how and when the conspiracy was formed); accord United States v. Gambino, 809 F. Supp. 1061, 1071 (S.D.N.Y. 1992) (courts have repeatedly denied requests for the Awhen@ and Awhereas@ and Awith whoms@ concerning the formation of schemes and conspiracies). Since the government has provided more than sufficient information for the defendant to prepare for trial, his motion should be denied. 10

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CONCLUSION WHEREFORE, for the reasons set forth above, the Government respectfully requests that defendant Tazhayakovs motion for a bill of particulars be denied.

Respectfully submitted, CARMEN M. ORTIZ United States Attorney By: /s/ B. Stephanie Siegmann B. STEPHANIE SIEGMANN JOHN A. CAPIN Assistant U.S. Attorneys

Certificate of Service I hereby certify that this document was filed on April 24, 2014, through the ECF system, which will provide electronic notice to counsel as identified on the Notice of Electronic Filing. /s/ B. Stephanie Siegmann B. Stephanie Siegmann

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