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Doc 142; Opposition to Deft Kadyrbayev's Motion to Dismiss and Bill of Particularsand to Stirke Surplusage 042514

Doc 142; Opposition to Deft Kadyrbayev's Motion to Dismiss and Bill of Particularsand to Stirke Surplusage 042514

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Published by Josefina
Doc 142; Opposition to Deft Kadyrbayev's Motion to Dismiss and Bill of Particularsand to Stirke Surplusage 042514
Doc 142; Opposition to Deft Kadyrbayev's Motion to Dismiss and Bill of Particularsand to Stirke Surplusage 042514

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Published by: Josefina on Apr 26, 2014
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05/10/2014

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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 KADYRBAYEV’S MOTIONS TO DISMISS INDICTMENT AND FOR BILL OF PARTICULARS AND TO STRIKE SURPLUSAGE
The United States of America opposes Defendant Kadyrbayev’s (“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 defendant’s 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 defendant’s 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 defendant’s 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
 
2 The Court should therefore deny each of the defendant’s 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 [Tsarnaev’s] room and take what’s there”; (2) searching Tsarnaev’s dorm room and locating a backpack containing fireworks that had been opened and manipulated; (3) removing said backpack from Tsarnaev’s 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 defendant’s 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.
1
This is not to suggest that other verbs specified in the indictment -- alter, destroy, and cover up – do not apply to the defendant’s conduct.
Case 1:13-cr-10238-DPW Document 142 Filed 04/25/14 Page 2 of 17
 
3 Moreover, the defendant’s 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 defendant’s knowledge that, on April 15, 2013, days before the defendants entered Tsarnaev’s 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 Tsarnaev’s 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 Tsarnaev’s laptop from the room.
 Id 
. The Complaint describes the defendant’s actions after he, Tazhayakov, and Phillipos returned to Kadyrbayev and Tazhayakov’s 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 Tsarnaev’s backpack, in a landfill in
Case 1:13-cr-10238-DPW Document 142 Filed 04/25/14 Page 3 of 17

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