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Doc 117; Motion to Dismiss Dias 041114

Doc 117; Motion to Dismiss Dias 041114

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Published by Josefina
Doc 117; Motion to Dismiss Dias 041114
Doc 117; Motion to Dismiss Dias 041114

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Published by: Josefina on Apr 11, 2014
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04/11/2014

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS UNITED STATES OF AMERICA : : v. : Crim. No. 13-10238-DPW : DIAS KADYRBAYEV, et al. :
DEFENDANT DIAS KADYRBAYEV’S MOTION TO DISMISS INDICTMENT, OR ALTERNATIVELY A BILL OF PARTICULARS AND TO STRIKE SURPLUSAGE
Defendant Dias Kadyrbayev, through undersigned counsel, respectfully requests that pursuant to Fed.R.Crim.P. 12, the Court dismiss Counts One and Two of the indictment, finding that the statute of prosecution, 18 U.S.C. § 1519, is vague, overbroad, and constitutionally infirm, in violation of the Due Process Clause of the Constitution’s Fifth Amendment. Defendant also moves this Court for an order, pursuant to Federal Rule of Criminal Procedure 7, dismissing the indictment for failure to state an essential element of specific intent. Alternatively, the defendant seeks clarity as to the means and method by which he has alleged to have committed obstruction, and moves for a bill of particulars to provide sufficient notice of the conduct he is alleged to have committed and to enable him to raise legal defenses. Finally, Defendant moves to strike as surplusage from the Indictment references to terrorism and to the emotional and difficult facts of the bombing.
REQUEST FOR ORAL ARGUMENT PURSUANT TO RULE 7.1(D)
Oral argument is requested to address issues not decided in this Circuit and the other issues raised herein.
Case 1:13-cr-10238-DPW Document 117 Filed 04/11/14 Page 1 of 21
 
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PARTIES CONFERRED PURSUANT TO RULE 7.1(A)(2)
On April 10, 2014, the parties conferred in good faith to resolve or narrow the issues to no avail.
MEMORANDUM OF LAW
Dias Kadyrbayev has been charged in Counts 1 and 2 of the Superseding Indictment with conspiracy to obstruct justice, and obstruction of justice pursuant to 18 U.S.C. § 1519. The indictment alleges that Mr. Kadyrbayev, along with co-defendant Azmat Tazhayakov, removed items including a backpack and lap top computer from the dormitory room of Dzhokhar Tsarnaev, and that they did so with the intent to obstruct, influence or impede the pending FBI investigation into the Boston Marathon bombing. Mr. Kadyrbayev now moves for dismissal of the Indictment, on the grounds that the statute under which he is being prosecuted, 18 U.S.C. § 1519, is unconstitutionally vague, and fails to provide fair notice of its scope and breadth. The statute lacks a requirement of “consciousness of wrongdoing” or corrupt intent, and does not require that the defendant know that his conduct will have the natural and probable effect of obstructing a federal investigation. The lack of any nexus requirement in combination with the elimination of any “corrupt intent”
mens rea
 for this offense renders the statute unconstitutionally broad in its reach and application, and provides inadequate notice of what is prohibited. Further, because the statute lacks minimal standards, it permits the prosecution unfettered discretion concerning which conduct it will choose to prosecute as criminalized.
Case 1:13-cr-10238-DPW Document 117 Filed 04/11/14 Page 2 of 21
 
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INTRODUCTION
 A.
 
Relevant Facts The Indictment alleges that Dias Kadyrbayev and Azmat Tazhayakov, both Kazakh nationals attending classes at the University of Massachusetts Dartmouth (“UMass Dartmouth”) through the international Navitas Program, went to the dorm room of Dzhokhar Tsarnaev, now charged with the bombing of the Boston Marathon, and removed certain items from that room with the intent to influence, obstruct or impede the investigation into the Marathon bombing. Among those items were a backpack, which was thrown in the garbage and later recovered from a landfill and a laptop computer allegedly belonging to Tsarnaev. The backpack contained empty fireworks tubes, some school papers later identified as Tsarnaev’s and a thumb drive. All were recovered. The indictment does not allege, and there is no proof, that the laptop was in anyway destroyed, impaired or accessed by the defendants, or that any of its files were deleted. Indeed, there is no evidence that any of the defendants accessed that computer and it remained in the apartment on Carriage Drive until it was identified as Tsarnaev’s by the defendant and seized by investigators who entered the apartment. Through the defendants’ cooperation with law enforcement, all items allegedly removed from Tsarnaev’s dorm room were recovered intact and unchanged in any way. B.
 
The Standard for Dismissal Under a Void for Vagueness Challenge A void for vagueness challenge means that criminal responsibility should not attach because a statute is so vague as to prohibit an individual from reasonably understanding that his contemplated conduct is proscribed. United States v. Nat’l Dairy Products Corp.,
Case 1:13-cr-10238-DPW Document 117 Filed 04/11/14 Page 3 of 21

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