Case 1:13-cr-10238-DPW Document 117 Filed 04/11/14 Page 1 of 21

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS UNITED STATES OF AMERICA v. DIAS KADYRBAYEV, et al. : : : : :

Crim. No. 13-10238-DPW

DEFENDANT DIAS KADYRBAYEVS 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 Constitutions 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. 1

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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.

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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 Tsarnaevs 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 Tsarnaevs by the defendant and seized by investigators who entered the apartment. Through the defendants cooperation with law enforcement, all items allegedly removed from Tsarnaevs 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. Natl Dairy Products Corp., 3

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372 U.S. 29, 32-33 (1963). Criminal statutes are subject to a relatively strict test for vagueness. Springfield Amory v. City of Columbus, 29 F.3d 250, 252 (6th Cir. 1994). Vagueness may invalidate a criminal statute if it fails to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits or if it permits or encourages arbitrary and discriminatory enforcement. City of Chicago v. Morales, 527 U.S. 41, 56 (1999), vacated on other grounds, 543 U.S. 1182 (2005). A statute is void under the Due Process clause if it is drafted in terms so vague that men of common intelligence must necessarily guess at its meaning, and differ as to its application. Connally v. General Construction Co., 269 U.S. 385, 391 (1926). Although a scienter requirement may mitigate a laws vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is prescribed, Village of Hoffman Estates v. Flipside Hoffman Estates, Inc., 455 U.S. 489, 499 (1982), it does not insulate a statute from attack on its constitutionality. If there is no fair warning of what the law will do if a certain line is passed, and no clear delineation of that line, then the statute is impermissibly vague and overreaches.

C. The Obstruction of Justice Statutes and the Obstruction Statute Charged Here In this case, Kadyrbayev is charged with violating 18 U.S.C. 1519, Destruction, Alteration, or Falsification of Records in Federal Investigations and Bankruptcy, created under Section 802 of the Sarbanes-Oxley Act of 2002. The statute reads as follows: Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or 4

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agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both. 18 U.S.C. 1519 is but one of several obstruction of justice statutes in Title 18 of the United States Code, and it is undoubtedly the broadest in language and application. What distinguishes Section 1519 from other obstruction of justice crimes under 18 USC 1503, 1505, and 1512(b), is what is absent. Unlike its sister statutes, 1519 does not expressly require corrupt intent. Section 1503, for example, contains the general obstruction of justice omnibus clause, criminalizing conduct corruptly influencing, obstructing, or impeding the due course of justice in the context of a judicial or grand jury proceeding. (emphasis added). Section 1505 makes it illegal to corruptly influence, obstruct, or impede a pending federal investigation. Section 1512 (c) makes it illegal to corruptly alter, destroy, or conceal a document or object with the intent to impair its integrity or availability for use in an official proceeding. See also 18 U.S.C. 1517 (corruptly). Moreover, 1519 lacks a willfully intent element found in other obstruction statutes, and more generally an element of obstruction of justice as the offense developed from common law. See 18 U.S.C. 1505, 1510(a), 1518, 1520(b). Willfully generally requires proof that the defendant acted both with knowledge of the law, and the intent to violate it. See Safeco Ins. Co. of America v. Burr, 512 U.S. 47, 57, n.9 (2007). These intent elements accord with the traditional definition of obstruction of justice as requiring that the defendant act with culpable intent in relation to a known duty to preserve records. Cf. Beaven v. U.S. Dept. of Justice, 622 F.3d 540 (6th Cir. 2010) (holding adverse influence instruction in destruction of evidence civil suit requires

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culpable state of mind and obligation to preserve [evidence] at the time it was destroyed and relevance). Section 1519 simply requires that the obstructive conduct be done with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within federal jurisdiction, or in relation to or contemplation of any such matter. The statute contains no element of willfulness, or any corruptly language. In short, the statute does not define how to determine intent and the mens rea has no inherent evil purpose or mental culpability beyond the intent to obstruct, impede or influence. The broad language of Section 1519 was a purposeful attempt on the part of legislators to correct what were perceived as ambiguities and technical limitations in other obstruction provisions. S.Rep. No. 146, 107th Cong., 2d Sess. 14-15 (2002). Indeed, the extreme breadth of 1519 was a legislative reaction to the Supreme Courts narrowing of the application of 18 U.S.C. 1503 in United States v. Aguilar, 515 U.S. 593 (1995). However, the holding in this case exemplify why the re-tinkered 18 U.S.C. 1519 is destined to fail constitutional scrutiny. In Aguilar, the defendant challenged his conviction under 18 U.S.C. 1503 for lying to a FBI agent regarding an unauthorized wiretap disclosure, when the defendant, a Judge, knew that there was a grand jury investigating the underlying matter when he was questioned. Id. at 596-97. There was no evidence, however, that the defendant knew that this agent would be conveying these misstatements to the grand jury. The specific issue was whether 18 U.S.C. 1503s intent element incorporates a requirement that the defendant have knowledge that his actions are likely to affect the judicial proceeding being obstructed. Id.

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In answer, the Supreme Court applied to the statute a nexus requirement imposed by prior Courts of Appeals, mandating that the defendants obstructive conduct have a relationship in time, causation, or logic with the judicial proceedings that the action was alleged to have obstructed. See Aguilar, 515 U.S. at 599, citing United States v. Wood, 6 F.3d 692, 696 (10th Cir. 1993) and United States v. Walasek, 527 F.2d 676, 679 (3d Cir. 1975). The Court reasoned that a nexus requirement ensured that there was an evil intent at the heart of the defendants actions, restricting the statutes purview to include only those defendants with the requisite criminal culpability normally associated with criminal prosecutions. Id., citing, Pettibone v. United States, 148 U.S. 197, 206-07 (1893). In Pettibone, the Supreme Court held that the defendants indictment was fatally defective for failing to allege his knowledge of the existence of the proceeding; knowledge or notice of a proceeding in federal court was essential to a finding that the defendant had the necessary intent to obstruct the administration of justice. 148 U.S. at 206-07. While ignorance of the law is not typically a defense to an indictment for a violation of a criminal statute, the Court held that lack of knowledge that justice was being administered was fatal to the obstruction indictment for without such knowledge or notice of that fact [the existence of proceeding and the defendants knowledge of same] the evil intent is lacking. Id. at 206. The Supreme Court in Aguilar adopted the Supreme Courts knowledge requirement as articulated in Pettibone as similarly essential to culpability under 18 U.S.C. 1503. Whereas in Pettibone the required element was the defendants knowledge of the existence of a proceeding, 148 U.S. at 207, in Aguilar it was the

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defendants knowledge of the likelihood that his conduct would affect the proceeding. Aguilar, 515 U.S. at 600. Specifically, the Aguilar nexus requirement mandates that the obstruction have the natural and probable effect of interfering with the due administration of justice. Id. at 599, quoting, United States v Wood, supra, 6 F.3d 692, 695 (10th Cir. 1993). [I]f the defendant lacks knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct. Id. (emphasis added). Circuit courts followed this line of reasoning, holding that in order to sustain a conviction for obstruction of justice under 1503, the government had to show that the defendants took their alleged actions knowing that they would have the natural and probable effect of obstructing the grand jury. United States v. Frankhauser, 80 F.3d 641 (1st Cir. 1996) (defendant must have knowledge that his actions are likely to affect grand jury); see United States v. Schwartz, 283 F.3d 76, 80, 109 (2d Cir. 2002). A similar line of reasoning compelled the Supreme Court to apply a nexus requirement to 18 U.S.C. 1512 (b) (2), which punishes anyone who knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with the intent to cause any person to alter, destroy, mutilate, or conceal an object with intent to impair the objects integrity or availability for use in an official proceeding. and of 18 U.S.C. 1512(b) (2) in Arthur Andersen LLP v. United States, 544 U.S. 696, 703-708 (2005). Anderson involved the destruction of documents under a corporate document retention policy that resulted in making those same records unavailable to the grand jury when it issued subpoenas. Id.

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At issue was the instruction given to the jury. Although Fifth Circuit Pattern Jury Instructions defined corruptly as knowingly and dishonestly, with the specific intent to subvert or undermine the integrity of a proceeding, the instruction given in Anderson excluded dishonestly and added the term impede to subvert or undermine. Id. Thus, the jury was instructed that it could convict if it found that the defendant intended to subvert, undermine or impede governmental fact-finding by suggesting to its employees that it shred documents in accordance with the documentation retention policy. Id. The corruptly aspect of the defendants intent was removed, so that the jury need find only that the defendant had the specific intent to impede an investigation, even if the corporation lacked any evil mind, or consciousness of wrongdoing. The Supreme Court held that the jury instructions were infirm for two reasons. First, the instructions as given failed to convey a required consciousness of wrongdoing. Id. at 599. Because impede has broad connotations, many of which do not incorporate corruptness at all, the removal of dishonestly from the definition of corruptly and the addition of the word impede removed any limitations on culpability, permitting the jury to find someone who innocently persuaded another to withhold information from the Government guilty. Id. By enforcing the document retention policy, which would make documents unavailable to the Government, and thus impede the investigation, the company could violate the statute, without any requirement that it was conscious of wrongdoing. Id. The Court held that in order to be criminally culpable under 1512 (b) (2), a person must be conscious of their wrongdoing, having a specific intent to taint the official proceedings: Only persons conscious of wrongdoing canknowinglycorruptly

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persuad[e] under the statute. Id. at 706 (emphasis added). Part and parcel of this evil intent would be that the person have at least foreseen or contemplated a proceeding, if one was not in fact pending, and this became the focus of the Courts other criticism of the instruction. Id. at 707-08. Although 1512(e)(1) expressly states that an official proceeding need not be pending or about to be instituted at the time of the offense, this does not (and cannot) permit a jury to believe it did not have to find any nexus between the obstructive conduct and a particular proceeding. Id. The Court held that the government was required to prove a nexus between the defendants attempts to persuade another to destroy documents, and a pending, or foreseeable official proceeding. 544 U.S. at 708. As the Court observed, a knowinglycorrupt[t] persuade[r] cannot be someone who persuades others to shred documents under a document retention program when he does not have in contemplation any particular official proceeding in which those documents might be material. Id. (emphasis added). The Aguilar Court had specifically rejected the notion that any act, done with the intent to obstruct the due administration of justice, is sufficient to impose criminal liability under 1503. Id. at 602. Similarly, the Court in Anderson was wary of an interpretation of 1512 that permitted the criminalization of acts that are actually obstructive, but which are not corruptly done. 511 U.S. at 611 (persua[ding] a person with intent to . . . cause that person to withhold testimony or documents from a Government proceeding . . . not inherently malign). Thus the nexus requirements, whether linking obstructive conduct to a particular proceeding, or demanding that the defendant have knowledge that his obstructive conduct will likely obstruct a proceeding,

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are essential to a finding of criminal culpability where the conduct proscribed by the statutes was not malum in se. POINT I THE HOLDINGS IN ANDERSON AND AGUILAR REQUIRE A FINDING THAT 18 U.S.C. 1519 IS VAGUE, OVERLY BROAD, AND CONSTITUTIONALLY INFIRM It would seem logical to extend the nexus requirements in Aguilar and Anderson to 18 U.S.C. 1519. After all, the nexus requirements imposed by the Supreme Court in those cases satisfied the Courts concern that 1503 and 1512 should apply only to sufficiently harmful conduct that was traditionally the object of obstruction of justice statutes. The more expansive language of 1519, which eliminates both a need for a pending or even foreseeable proceeding, and the corruptly aspect of specific intent, demands a nexus requirement to rein in the overly broad and diffuse language of that statute. While Courts of Appeals addressing the issue, in one form or another, have to date rejected importing a nexus requirement of any kind on to 1519. See United States v. Gray, 642 F.3d 371, 378 (2d Cir.2011); United States v. Moyer, 674 F.3d 192, 208 (3d Cir. 2012)(rejecting requirement that defendant had to impede a specific federal matter; purely jurisdictional requirement); United States v. Kernell, 667 F.3d 746, 753 (6th Cir. 2012) (refusing to extend proof of nexus between conduct and a particular federal investigation to 1519); United States v. Yielding, 657 F.3d 688, 714 (8th Cir. 2011) (same), the First Circuit has not examined the issue presented here. Second, the cases cited from other Circuits primarily addressed the fact that the statute does not require a defendant to know that a federal investigation is ongoing, separating the mens rea

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element from the jurisdictional element that a matter be within the jurisdiction of a federal agency. Yielding, supra, 657 F.3d at 713-14 (on its face, statute does not require a defendant to know that a federal investigation is pending; federal nature of investigation is jurisdictional only); see 148 Con. Rec. S1783-01, S1786 (daily ed. March 12, 2002 (Sen. Leahy statement) ([t]he fact that a matter is within the jurisdictional of a federal agency is intended to be a jurisdictional matter and not in any way linked to the intent of the defendant.). The Circuits rejection of any vagueness challenge to 18 U.S.C. 1519 is premised on the reasoning that the statutes scienter requirement, the intent to obstruct, impede or influence, eliminates any vagueness. See Moyer, 674 F.3d at 211-212 (statutes scienter requirement, that only those who knowingly falsify a document with intent to impede, obstruct or influence a matter provides adequate notice), citing United States v. Kernall, supra, 667 F.3d at 754 and United States v. Yielding, supra, 675 F.3d at 711. That reasoning, however, seems to have been explicitly rejected by the Supreme Court in Aguilar, where the majority rejected the dissents assertion that any act, done with the intent to obstructthe due administration of justice is sufficient to impose criminal liability. Aguilar, 515 U.S. at 602. The vagueness challenge here, however, is not simply the necessity of a nexus in defining the crime; the challenge here is also the lack of any element of corrupt or evil intent, or consciousness of wrongdoing, which in combination with the imprecise and overly broad language of the statute, renders it vague and incapable of a narrowing. 18 U.S.C. 1519 prohibits a defendant acting with the intent to impede, obstruct or influence an investigation, or the proper administration of a matter within the

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jurisdiction of a federal agency. The common meaning of the term to impede means to affect or alter by indirect or intangible means; to obstruct is to block or slow the movement or progress or action of (someone or something) and to influence is to affect or alter by indirect or intangible ways. See (http://www.merriam-webster .com/dictionary/impede; http://www.merria-webster.com/dictionary/obstruct; http://merriam-webster.com/dictionary/influence. None of these words define only that conduct which is inherently wrongful or malum in se, conduct which obstruction of justice statutes have traditionally isolated as warranting criminal penalty. In fact such definitions embrace a wide variety of perfectly innocent conduct, a point made by the Anderson Court in discussing the intent to impede instruction for 18 U.S.C. 1512(b). In explanation, the Court listed conduct in which it was clear that the actor intended to prevent or impede the government from obtaining information necessary to its investigation, but would not be illegal - a wife persuading her husband not to disclose marital communications, a mother instructing her son not to disclose information in violation of his privilege against self-incrimination, an attorney counseling his client with intent tocause that client to withhold documents from the Government. Id. at 704 (further citations omitted). These acts, or conduct, while all instances in which one has persuad[ed] a person with intent tocause that person to withhold testimony or documents from a government proceeding or official, are not inherently malign, nor necessarily corrupt. Id. Only those who are conscious of wrongdoing can be said to knowinglycorruptly persuad[e] and limiting criminality only to these defendants sensibly allows 1512(b) to reach only those with the level of culpabilitywe usually require in order to impose criminal liability. Id. at 706, citing, Aguilar, 515 U.S. at

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602. Those same examples of innocent conduct would now be criminal under 18 U.S.C. 1519 because the statute does not require that the defendant act with a corrupt intent, only with intent to obstruct, influence or impede. The requirement of corrupt intent in 1512, as it appears in other obstruction statutes but absent in 1519, defined the intent necessary to criminalize conduct which itself is not malum in se, even if it impedes or hinders the governments investigation. Aguilars rejection of the view that any act, done with intent to obstructthe due administration of justice is sufficient to impose criminal liability reflects the longstanding rule that obstruction requires an evil mind because the conduct that is prohibited is not, itself, inherently or inevitably nefarious. As drafted, 18 U.S.C. 1519 provides no limits to the federal prosecutors discretion to criminalize legitimate behavior, or to choose to prosecute only certain individuals and not others, as it provides no delineation between culpable and innocent behavior. POINT II THE INDICTMENT IS INSUFFICIENT ON ITS FACE [I]nquiry into the sufficiency of an indictment focuses on two factors: [i]n general an indictment is constitutionally adequate if it, first, contains the elements of the offense charged and fairly informs a defendant of the charges against which he must defend, and second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. United States v. Superior Growers Supply, Inc., 982 F.2d 173, 176 (6th Cir.1992), quoting, Hamling v. United States 418 U.S. 87, 117 (1974).

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These factors ensure the provision of constitutional notice and due process. To pass constitutional muster, an indictment must be sufficiently specific to inform the defendant of the charge against him and to enable him to plead double jeopardy in any future prosecutions for the same offense. Even when an indictment tracks the language of the statute, it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged. United States v. Schmitz, 634 F.3d 1247, 1261 (11th Cir. 2011) (internal quotation marks and citations omitted). The indictment here is insufficient on its face. First, the indictment fails to allege that Kadyrbayev had knowledge that his conduct would likely obstruct justice, or any consciousness of his wrongdoing, a material fact without which the indictment is insufficient as a matter of law. Aguilar, 515 U.S. at 599 (1993) (if the defendant lacks knowledge that his actions are likely to affect the proceedings he lacks the requisite intent to obstruct.). Just as the indictment in Pettibone was held to be fatally deficient for failing to allege the defendants knowledge of the existence of a proceeding, 148 U.S. at 206-08, the failure of this indictment to allege the material fact of the defendants knowledge that his actions were likely to affect the investigation of the bombing renders this indictment defective as failing to state the requisite intent. See Anderson, 544 U.S. at 707 (holding that before a defendant may be convicted of obstruction he must believe that his acts will be likely to affect a proceeding or foreseeable proceeding). An essential element of an offense cannot be implied in an indictment. 1 An invalid indictment is also

It is likely that the grand jury was not instructed properly that it had to find that Dias knew that his conduct would likely obstruct justice, which would constitute a defect in that proceeding as well.

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not curable with a bill of particulars. Fed.R.Crim.P. 7(f); United States v. Murphy, 762 F.2d 1151, 1154 (1st Cir.1985), citing, Russell v. United States, 369 U.S. at 770.

BILL OF PARTICULARS The indictment also fails to put defendant on notice of the specific charges against which he must defend. Rule 7 (c)(1) of the Federal Rules of Criminal Procedure allows a single count to allege that the defendant committed [the offense] by one or more specified means. Here the indictment may be read to charge a single offense that consists of a continuing course of conduct that involved more than one specified means. Count Two may also be read to charge more than one offense of obstruction. The Government must provide a bill of particulars as to what it claims constitutes obstruction of justice in violation of the statute so that Kadyrbayev can determine whether the indictment in fact alleges more than one substantive obstruction in Count Two, entitling him to dismiss the Indictment for duplicity, or whether in fact the Government is simply alleging one criminal act committed by several means. If the latter, the defendant is entitled to inquire whether the petit jury is going to be presented with evidence and charges beyond those presented to the grand jury, or whether in deciding on a verdict, jurors will be asked to rely on different acts to conclude that the defendant is guilty of obstruction. 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. Russell v. United States, 369 U.S. 749, 763-766 (1962).

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The multiple means of committing the offense in Count Two similarly raises the risk that a jury may rely on multiple and different acts to find an obstruction of justice. If the government does not specifically enumerate those means now, with more clarity than is present in the indictment as worded, the risk of a non-unanimous verdict is not only more likely, but so too is the possibility of constructive amendment by the Governments shifting of its theory of the case as the evidence and facts develop at trial. By letter dated April 9, we requested the following of the government: 1. What specific acts does the government contend obstructed justice? a. Was it the removal of the items from the dorm room? b. The disposal of the backpack and its contents? c. The retention of the laptop, hat and ashtray? d. The failure to call the police? 2. Is there any allegation that defendants failure to act or any omission of the defendants constituted obstruction? By email dated April 10, the government responded: 1. the government will offer evidence to establish that the defendants obstructive conduct included, but was not limited to, removing items from the dorm room, disposing of the backpack and its contents, retaining the laptop, and, in the case of Tazhayakov, deleting text messages from his telephone after first being interviewed by the FBI. 2. The government does not allege that the defendants failure to call the police or otherwise to act constituted obstruction, except as alleged in Count 1, subparagraph j and except to the extent that withholding information from, or lying to, the FBI can be characterized as failure to act. In a conference call of April 11, the government further described and expanded its theory of culpability. The government said that by referencing subparagraph j in Count 1, it intended on arguing that the defendants failure to call the police when they allegedly saw a garbage truck emptying the dumpster where the backpack had been placed constituted obstruction. When asked whether that logically meant that obstruction did not include any of the items that were still in the Carriage Drive apartment laptop,

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hat, and jacket the government answered in the negative and stated that obstruction included all actions from the moment any items were taken from Tsarnaevs doom room. Thus, there are multiple potential acts that the government will assert at trial, including ones not listed here, that a jury may consider but we will have no way of knowing what those acts are and whether there is unanimity as to what actions each defendant took. The indictment also fails to specify the investigation which the defendant is alleged to have obstructed. Of course, the likely answer is that the investigation is that of the bombing, as alleged in the factual statement of the indictment. However, it is conceivable that the Government will keep its options open at trial, and argue an alternative theory to the jury, that the defendants conduct was directed at obstructing or impeding their own involvement in criminal activity. This is facially apparent in the Governments insistence that Tazhayakovs deletion of text messages after his first interview with the FBI could constitute obstruction, and proof of obstruction, at trial. Arguably, in so deleting text messages after the FBIs interview, Tazhayakov was conceivably obstructing the FBIs investigation of his own conduct, and not that of Tsarnaev. Similarly, any alleged disposal of items taken from Tsarnaevs room may have been to protect themselves rather than impede the bombing investigation. The Government must specify here, whether the alleged obstruction was in relation to, and with the intent to impede, influence or obstruct the investigation into Tsarnaevs involvement in the bombing, or the FBIs investigation of the defendants and their removal of items from the dorm room. See United States v. Murphy, 762 F.2d 1151, 1154-55 (indictment defective for failing to specify the specific proceeding in which the defendant sought to influence a witness testimony, as permitting the prosecutor to argue

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to a jury two theories: one in which the defendants attempted to intimidate the witness with intent to influence his testimony under the mistaken belief he was a witness against them, and one in which the defendants sought to influence his testimony in a related case). SURPLUSAGE Where Terrorism is Not an Essential Element of the Case and Unfairly Prejudices the Defendant, All References to Terrorism, the Bombing Casualties, and Related References Should Be Struck As Surplusage Pursuant to Federal Rule of Criminal Procedure 7(d), the defendant may move to strike surplusage from the indictment to protect against immaterial or irrelevant allegations.which maybe prejudicial. United States v. Lewis, 40 F.3d 1325, 1346 (1st Cir. 1994), quoting Fed.R.Crim.P. 7(d) advisory committee note; United States v. Fahy, 769 F.2d 829, 841-42 (1st Cir. 1985). Here, Kadyrbayev asks this Court to strike from the Introduction section of the Indictment, as immaterial, inflammatory, and unnecessarily prejudicial, all references to terrorism and the Joint Terrorism Task Force (paras. 4, 14); the unnecessary and inflammatory language concerning the casualties sustained in the Marathon bombing (maimed, burned) (para 2), the shoot-out with Tamerlan Tsarnaev which left him dead (para. 6); the number of federal agents who searched the landfill (para. 13), the reference to the FBIs investigation having as its goal seeking and stopping any additional acts of terrorism (para. 4); and the language domestic and international terrorism contained in Count Three (we realize that this Count is only in regards to Robel Phillipos, but it clearly has the effect of prejudicing the other defendants as well).

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Surplusage in the Rule 7(d) context is language which goes beyond alleging elements of a crime. United States v. Jenkins, 785 F.2d 1387, 1392 (9th Cir. 1986). None of these references which the defendant requests to be struck from the indictment are at all relevant to the legal charges, which allege an obstruction of justice. Terrorism is not an element of the charges, and this incredibly loaded term, particularly in the minds of anyone in the Boston area where this horrific event occurred only one short year ago, and which implies a looming and terrifying force that threatens the existence of each and every juror, is unfairly prejudicial. There is no allegation, or proof, that the defendants were involved with a terrorist group or were motivated or acted in support of a terrorist cause. In fact, releases from high level government employees just this week concerning the year-long Congressional investigation into Russias warnings about Tamerlan to U.S. authorities concluded that there was no known connection to any domestic or international terrorist organization by the alleged bombers themselves. Combined with the description of the number of maimings and injuries, the deaths, and the possibility of future attacks, the terrorism reference, while irrelevant to any actual elements of the charged offenses, will evoke strong emotional responses from the jury, and potentially inflame the jury into believing that the crime alleged in the indictment may have exceeded the evidence at trial; that the defendants have some relation or connection to terrorism, or the bombing itself; and that the defendants are morally deserving of conviction if only because of their association with the person who committed this atrocious attack. See United States v. Groos, 616 F.Supp.2d 777 (N.D.Ill. 2008) (granting motion to strike holding that [r]eferences to national security and terrorism are likely to inflame passions that could cause jurors to judge the facts more harshly than they would

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if presented with an indictment strictly discussing violations of a trade embargo.); United States v. Quinn, 401 F.Supp.2d 80 (D.D.C. 2005) (striking references to international terrorism and threat to the U.S. in trade embargo case). CONCLUSION Aguilar and Anderson made it clear that a defendants knowledge that his conduct is likely to obstruct a proceeding is a necessary nexus element that ensures that only those defendants with sufficient culpability are punished; and that the actions must be wilfully corrupt, a consciousness of wrongdoing Because any substantive means of defining specific intent here, beyond the intent to impede or influence or obstruct, has been removed from the statute, this Court cannot rescue the statute from its infirmity and must dismiss counts 1 and 2. In addition, the indictment here is facially insufficient. Alternatively, the Court should order the government to provide a Bill of Particulars and Strike the Surplusage. Respectfully submitted, s/ Robert G. Stahl ________________________________ Robert G. Stahl, Esq. Laura K. Gasiorowski, Esq. (on the brief) Law Offices of Robert G. Stahl, LLC 220 St. Paul Street Westfield, NJ 07090 Dated: April 11, 2014 I hereby certify that this Brief and all accompanying exhibits were served upon counsel of record for the government by electronic mail this 11th day of April, 2014. s/ Robert G. Stahl _________________________ By: Robert G. Stahl, Esq. cc: AUSAs John Capin & Stephanie Siegmann (via email) Nicholas Wooldridge, Esq. (via email) Derege B. Demissie, Esq. (via email) 21