UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ----------------------------------------------------- ) UNITED STATES OF AMERICA ) ) CASE No: 1:13 cr 10238 DPW ) v. ) ) ) AZAMAT TAZHAYAKOV, ) ) Defendant. ) ----------------------------------------------------- ) DEFENDANT'S MEMORANDUM OF LAW IN SUPPORT OF JUDGEMENT OF ACQUITTAL OR IN THE ALTERANTIVE FOR A NEW TRIAL UNDER FEDERAL RULES OF CRIMINAL PROCEDURE 29 AND 33 Case 1:13-cr-10238-DPW Document 392 Filed 09/09/14 Page 1 of 42
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8/11/2019 Doc 392; Azamat Memo of Law in Support of Judgement of Acquittal or New Trial 090914
This Memorandum of Law is submitted on behalf of defendant, Azamat
Tazhayakov, in support of his motion for an order setting aside the jury verdict pursuant
to Rule 29 (c) of the Federal Rules of Criminal Procedure and/or in the alternative an
order granting a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure
on the grounds that:
(a) As to the Conspiracy Count, the evidence adduced at trial was insufficient tosupport the count of Conspiracy to Obstruct Justice charged in the indictment withrespect to the elements of “agreement” and “willfully” in violation of Title 18,United States Code Section 371;
(b) As to the Substantive Count, the evidence adduced at trial was insufficient tosupport the count of Obstruction of Justice charged in the indictment with respectto the elements of “willfully” in violation of Title 18, United States Code Sections1519.
(c) There was insufficient evidence adduced at trial that Azamat knew the backpack contained a thumb drive.
(d) There was insufficient evidence adduced at trial to convict Azamat as AgentAzad, Wood, and Wiroll’s testimony were incredible.
(e) There was insufficient evidence adduced at trial as Dias Statement to AgentAzad was Improperly Elicited During Agent Azad’s Direct Examination inViolation of Crawford, and then Improperly Highlighted by the Government in itsClosing Argument.
As detailed more fully below, these grounds, either independently or collectively,
compel acquittal for Mr. Tazhayakov on each conviction, or at the very least, a new trial
on each count.
Accordingly, it is with the utmost respect and urgency that Mr. Tazhaykov submits
that his motion for a judgment of acquittal,or in the alternative a new trial be granted in
its entirety.
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testimony squares with Agent Wood’s testimony that the following morning after the
brothers were identified, Azamat told Dias “remember where Dias put it, just in case.”
Trial Tr. Day 6, page 33 and 92, lines 2-4 and lines 4-8.
THE AGENTS:
Agent Walker testified that he was the first Agents to have contact with Azamat
on April 19, 2013 at approximately 5:00 p.m. As part of Special Agent Walker’s initial
conversation with Azamat he informed Azamat that,
“Jahar Tsarnaev, he's dead. Whether he's still living or whether he's going to goaway, his life is over. Your life [Azamat’s] doesn't have to be over.” Trial Tr. Day10, page 57, lines 5-7.
After further discussion, Agent Walker “invited” Azamat to come to the Police Barracks
to be questioned further by the F.B.I.
Azamat arrived, shirtless, at the Police Barracks at approximately 7:00 p.m., and
was escorted into a Police interview room a half hour later by Special Agents Azad and
Wood. Wood was the first interviewing Federal Agent to testify at the trial. During her
testimony she testified about the voluntariness of the interview. To highlight the
voluntariness, Agent Wood previously submitted an affidavit to the Court wherein she
swore under oath how she and Agent Azad permitted Azamat to use the restroom prior to
being presented with an advice of rights form. 4 Presumably, such a scenario would
demonstrate that Azamat was not under any duress and was clear headed when he was
presented with and subsequently signed the Miranda form, 7:41 and 7:46 respectively.
Andrew Dwinells, Dzhokhar’s roommate, testified as to what happened on the
night of April 18, 2013 in the dorm room. Andrew Dwinells testified that at
approximately 10:00 p.m. he was working on his homework at the Pine Hall Dorm
common area, when Dias Kadrybayev approached him seeking access. Dias requested
access to the Dzhokhar’s dorm room to retrieve something, and showed Andrew the text
exchange between Dias and Dzhokhar from earlier that evening. Trial Tr. Day 6, page
134-135. Dwinells testified after a couple of minutes of entering the room, Dias sent a
text message. Trial Tr. Day 6, page 135 lines 13-18. 6 Approximately ten minutes later,
two other friends showed up, Azamat and Robel. Dias looked around the room forsomething, while the other two guys, Azamat and Robel, were just kinda like there and
watched T.V. Trial Tr. Day 6, page 135, lines 16-25. Neither Azamat or Robel assisted
or joined Dias in his search. Trial Tr. Day 7, page 11 lines 6-9. During the course of
Dias’ search, Dias found some marijuana and showed it to both Azamat and Robel. Trial
Tr. Day 6, page 137, lines 1-13. Dwinells never testified that Dias showed either
Azamat or Robel anything else from the dorm room that evening, other than a bag of
marijuana. Andrew Dwinells made no mention of a discussion between Azamat and
Dias concerning vaseline, or even seeing a jar of Vaseline that evening. Andrew
Dwinells did not see anyone remove anything from the dorm, except one gentleman, who
took a pair of beats headphones. Trial Tr. Day 7, page 28 lines 3-6.
After ]leaving the dorm room, Azamat, Dias, and Robel went back to the
apartment on 69A Carriage where Dias eventually discarded the backpack in a dumpster.
Agent Wood testified that once at the apartment Dias was the one who removed the
Azamat, a Kazhakstan National who was using the aid of the consul, a nonofficial
interpreter.
Agent Wiroll claimed the I-213 report he read to Azamat contained a section that read
as follows:
“Tazhayakov was present with Dias Kadrbayev on the night they removed itemsfrom Tsnaraev’s UMass Dartmouth dormroom after the Boston MarathonBombing. Tazhayakov along with Kadbrayev removed these items because theysuspected Tsarnaev was one of the Boston Marathon Bombers and they came upwith a plan to dispose of the items.” Trial Tr. Day 7, page 49, lines 2-5.
Agent Wiroll testified that once he read up to “(…) suspected Tsarnaev”, Agent Wiroll
then asked Azamat a question, and Azamat asked to speak with the Consul. Trial Tr. Day
7, page 46-47, lines 14-24, and lines 2-8. After speaking with the Consul, Azamat
looked back at Agent Wiroll, and Agent Wiroll “just continued” to read the rest of the
document. Trial Tr. Day 7, page 48, lines 21-24.
Agent Wiroll further testified that Azamat objected to the word “plan” the Agent
read from his Report. Trial Tr. Day 7, page 49, lines 15-29. According to Agent Wiroll,
Azamat informed the Agent that Azamat “more like agreed.” Trial Tr. Day 7, page 59,
lines 20-25. There was no discussion between Azamat, and Agent Wiroll as to the
specifics of the discussion between Azamat and Dias concerning the “items”. Agent
Wiroll never testified as what “items” were taken, or who actually took the unidentified
“items”. Agent Wiroll also testified that Azamat informed the Agent that “he did not
know what was in it.” Trial Tr. Day 7, page 51, lines 5-11. When pressed by the Court
what Azamat was referring to when Azamat informed the Agent “he did not know what
was in it” the plan, agreement, or the object, Agent Wiroll testified that Agent Wiroll
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v. Hernandez , 218 F.3d 58, 64 (1st Cir. 2000). Courts have recognized that “if the
evidence viewed in the light most favorable to the prosecution gives ‘ equal or nearly
equal circumstantial support to a theory of guilt and a theory of innocence ,’ then ‘a
reasonable jury must necessarily entertain a reasonable doubt.” ’ United States v. Glenn ,
312 F.3d 58, 70 (2d. Cir. 2000), quoting United States v. Lopez , 74 F.3d 575, 577 (5th
Cir.1996). (Emphasis supplied); see also United States v. Ayala-Garcia , 574 F.3d 5, 11
(1st Cir. 2009)(emphasis in original).
A. Conspiracy Charge (Count One)
1. The evidence adduced at trial was insufficient to prove beyond a reasonabledoubt that (a) an agreement to obstruct justice existed, or (b) even assumingarguendo an agreement to obstruct justice did exist, that Azamat Tazhaykovdeliberately and intentionally with the specific intent to violate 18 USC 1519 joinedin the agreement.
The indictment charged that Dias and Azamat, along with another, known to the
Grand Jury, did knowingly conspire between April 18, 2013 and April 20, 2013, to
obstruct justice in the Boston Marathon Bombing case by agreeing to knowingly alter,
destroy, conceal, and cover up tangible objects belonging to Dzhokhar Tsarnaev, namely
a laptop computer and a backpack containing fireworks and other items.
In order for the Government to prove the crime of conspiracy, it needed to prove,
beyond a reasonable doubt, two crucial elements:
First, the Government had to prove that two or more persons entered into the
criminal agreement charged to obstruct justice alleged in the indictment; and
Second, that Azamat willfully- meaning deliberately and intentionally with the
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Azamat to further the alleged unlawful objective. The evidence established that Dias
was the one who had searched the dorm room and located the backpack, it was Dias who
took the backpack from the dorm room to the apartment on 69A Carriage Drive, and it
was Dias who discarded the backpack by himself and alone. According to Agent Wood,
Azamat never directly or indirectly indicated that he ever even touched the backpack.
Trial Tr. Day 6, page 103 lines 5-8. There was no evidence that Azamat accompanied
Dias to the dumpster where Dias tossed the backpack. The evidence adduced at trial
indicated that Azamat only became aware of the location where Dias tossed the backpack
the following day, April 20, 2013, after the Police Barracks interview. Finally, even thewords Azamat uttered to Dias, “remember, where you put it, just in case,” on the morning
of April 19, 2013 indicate Azamat never intended to obstruct justice, conceal and/or
destroy the backpack. Trial Tr. Day 6, page 33 and 92, lines 2-4 and lines 4-8.
Based on the foregoing, a rational trier of fact would have to conclude that the
evidence was insufficient to prove beyond a reasonable doubt that Azamat entered into an
actual agreement with Dias, or was a member of a conspiracy, and as such the conviction
under Count One of the Superseding Indictment must be dismissed.
Defense counsel contends the erroneous conviction on the Conspiracy count was
also was used by the jury to convict Azamat of the Second Count, Obstruction of Justice.
B. Azamat did not Obstruct Justice, Aid and Abett in the Obstruction ofJustice, and for the reasons discussed above as well as additional Due ProcessConstraints there was insufficient evidence to convict Azamat for thesubstantive offense under Pinkerton.
In order for the jury to return a verdict of guilty on Count two, Obstruction of
Justice, the jury was required to find the following beyond a reasonable doubt:
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elements and ways to prove obstruction of justice in violation of 18 USC 1519.
Specifically, upon a review of the evidence the Government introduced confirms that it
failed to establish any of the three ways to prove the substantive offense.
1. The Government presented no evidence that Azamat altered, destroyed,concealed, or covered up the backpack containing fireworks, a jar ofvaseline, and a thumb drive.
The Government presented absolutely no evidence that Azamat altered,
destroyed, concealed or covered up the backpack containing fireworks, a jar of vaseline,
and a thumb drive. 9 What the trial record clearly established, and which was discussed in
detail above, was that Dias was the person who actually took the backpack containing the
aforementioned items from Dzhokhar’s dorm room, brought them back to the apartment
at 69A Carriage Drive, and subsequently tossed them in the dumpster after being
admonished by his girlfriend. Most importantly, and what the trial record confirms is
that Azamat never even touched the backpack, and the items contained therein.
While the Government, may point to the testimony of their federal agents that
Azamat used the term “we” when describing who took “items”, the items were incapable
of being taken by more than one person, at a time, and the use of the pronoun “we” was
merely figurative to connote Azamat’s presence. Additionally, Andrew Dwinells
testified that he saw one person take one item, the headphones. Most importantly,
however, what the trial record confirms is that at the very least, all of the evidence
introduced by the Government with regard to this theory of Tazhayakov’s guilt only
2. Azamat did not knowingly and willfully associate himself in some waywith the crime, nor did he willfully participate in the crime as something he wishedto bring about through some affirmative act in furtherance of the offense.
It is well established, that in order to be an aider and abettor the defendant must
knowingly and willfully associate himself with the venture in some fashion, "participate
in it as something that he wishes to bring about," or "seek by his action to make it
succeed." United States v. Urciuoli , 513 F.3d 290, 299 (1st Cir. 2008) (quoting United
States v. Peoni , 100 F.2d 401, 402 (2d Cir. 1938)) . The rule is similar with respect to
establishing membership in a conspiracy. See United States v. Cirillo , 499 F.2d 872, 883
(2 Cir. 1974) ("There must be some basis for inferring that the defendant knew about the
enterprise and intended to participate in it or to make it succeed"); United States v.
Cianchetti, 315 F.2d 584, 588 (2 Cir. 1963) (co-conspirator must make an "affirmative
attempt" to further the purposes of the conspiracy); United States v. Falcone , 109 F.2d
579, 581 (2 Cir. 1940) (co-conspirator must "promote [the] venture himself, . . . have a
stake in its outcome").
For reasons discussed under the analysis above, with regards to the conspiracy
count, equally here, there was insufficient evidence to prove beyond a reasonable doubt
that Azamat aided and abetted Dias in the removal of the backpack from the dorm room,
and/or Dias’ subsequent placement of the backpack in the dumpster.
Other than Azamat’s presence at the dorm room, and Azamat’s alleged use of the
pronoun “we” when discussing the removal of “items”, there is not an iota of evidence to
connect Azamat with Dias’ removal of “items” from the dorm room. Azamat took no
action. Azamat did not correspond with Dzhokhar about removing items from the dorm
room, Azamat was not even shown the text exchange between Dias and Dzkohar until he
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where an action is not necessarily wrong or harmful the Government must prove the
defendant specifically intended the purpose behind the act. United States v. Tobin, 552
F.3d 29, 33 (1 st Cir. 2009). In Tobin, the Court interpreted 47 U.S.C. § 223(a)(1)(D) ,
which prohibits making repeated phone calls to the same number with an intent to harass
as a specific intent crime rather than a general intent crime. Id. Tobin held that the
government must prove the defendant specifically intended to harass the person at the
called number because "[t]here is nothing inherently wicked or even suspect about
multiple phone calls" absent the wicked intention motivating them.” Id. " In a general
sense, "purpose" corresponds with the common-law concept of specific intent, while"knowledge" corresponds with the concept of general intent. United States v. Bailey, 444
U.S. 394 (1980).
Like the defendant, in Tobin, here, there is nothing inherently wicked or suspect
about throwing a backpack in a dumpster, absent a wicked intention to obstruct justice.
Azamat never uttered the word “I agree” with the specific purpose to obstruct justice, if
anything, Azamat simply did not want the backpack at his apartment. His follow up to
Dias to remember where you [Dias] put it just in case further supports Azamat’s specific
purpose.
Where the defense and prosecution theories are equally viable, a judgment of
acquittal is required “where the evidence is in equipoise, or nearly so, even when viewed
in the government’s favor.” United States v. Ayala-Garcia , 574 F.3d 5, 11 (1st Cir.
2009)(emphasis in original). Where a fact to be proved is also an element of the offense,
however, "it is not enough that the inferences in the government's favor are permissible."
United States v. Martinez , 54 F.3d 1040, 1043 (2d Cir. 1995) . A court "must also be
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satisfied that the inferences are sufficiently supported to permit a rational juror to find
that the element, like all elements, is established beyond a reasonable doubt." Id. "[I]f the
evidence viewed in the light most favorable to the prosecution gives 'equal or nearly
equal circumstantial support to a theory of guilt and a theory of innocence,' then 'a
reasonable jury must necessarily entertain a reasonable doubt.'" Glenn, 312 F.3d at 70
(quoting United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996)) .
Even assuming arguendo that Azamat’s allegedly uttered words “I agree” could
be considered participation in a conspiracy, the Government submitted insufficient
evidence to prove beyond a reasonable doubt that Azamat had the specific intent to
obstruct justice. Azamat never intended to impede the Government’s investigation.
Dias was the one who took items from the dorm room and brought them back to an
apartment he shared with Azamat. From Bayan’s testimony it was clear that Dias had not
even realized the gravity of what he did until Bayan told him, and ordered him to get the
backpack out of the apartment. And, really who could blame her, she did not want it
around. The evidence taken in its best light established Azamat’s alleged statement of “I
agree” to what should be done with the backpack was not to impede the Government’s
investigation, rather the purpose behind such a statement was to distance himself from the
backpack. To suggest that Azamat wanted to help or assist Dzokhar is incredible.
Dzohkar was done, there was no helping him. 10 A major manhunt was underway for
Dzokhar. Dzokhar’s picture was plastered all over the internet, as well as media around
"S C() U-0)+&D)&' *& *', 4<-,*&9 3+9;D)&' *D?+-?)+<1 D*,4(3+34')+*J)5 '() )0*5)&4) 3&5+)?+),)&')5 '(3' HJ3D3' '-<5 '() H9)&', () 39+))5 '- '3E) '() /34E?34E 3&5 '(+-8 *' 3831 /)43;,)() 83&')5 '- ()<? IJ-E(3+6 (Trial Tr. Day 12, page 8, lines 23-25). There was simply no evidence of theGovernment’s mischaracterization. While Agent Wood testified that Azamat informed her he omittedcertain information because he was trying to defend Dzkohar, this is not an admission by Azamat as to hisspecific purpose behind the purported agreement.
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3. Under Pinkerton Azamat cannot be guilty of the substantive offense ofobstruction of justice because the evidence was insufficient to prove beyond a
reasonable doubt that that Azamat entered into an actual agreement with Dias, orwas a member of a conspiracy to obstruct justice.
Pinkerton declared that when a criminal conspiracy is proven to exist each
member may be charged with the foreseeable substantive crimes of his co-conspirators.
Pinkerton v. U.S., 328 U.S. 640, 647, 90 L. Ed. 1489, 66 S. Ct. 1180 (1946) . As the
issue of conspiracy was broached at length above, the undersigned incorporates by
reference those same arguments to support the contention that Azamat did not enter into
an actual agreement with Dias, nor was Azamat a member of a conspiracy to obstruct
justice.
a. Even Assuming Arguendo, that a Conspiracy was proven, Due ProcessConstrains the application of Pinkerton , as any Relationship between Azamat andObstruction of Justice is Less Slight.
Due process constrains the application of Pinkerton where the relationship
between the defendant and the substantive offense is slight." United States v. Collazo-
Aponte , 216 F.3d 163, 196 (1st Cir. 2000) (quoting United States v. Castaneda , 9 F.3d
761, 766 (9th Cir. 1993)) , vacated on other grounds , 532 U.S. 1036, 149 L. Ed. 2d 1000,
121 S. Ct. 1996 .
Any relationship Azamat may have had with the substantive offense was less than
slight. While much of the case law surrounding Pinkerton’s due process constraints
centers on foreseeability, such a concept is not a usual criminal law concept and surely
not a concept that puts meaningful due process limits on criminal liability. United States
v. Hansen , 256 F. Supp. 2d 65, 67 n.3 (D. Mass. 2003). At least one court has treated the
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defendant if it found that she had participated in either of the two objects, and the jury
returned a general verdict of guilty, without specifying on which count it relied. Id. at 47-
48. The Supreme Court in Griffin held that "'when a jury returns a guilty verdict on an
indictment charging several acts in the conjunctive, the verdict stands if the evidence is
sufficient with respect to any one of the acts charged.” Id. at 56-57. Notwithstanding, an
instruction that all objects of a multi-object conspiracy had to be proved would go against
Griffin . United States v. Mitchell , 85 F.3d 800, 811 (1 st Cir. 1996).
Under the facts of this case, this Honorable Court did not instruct the jury that it
could return a guilty verdict against Azamat, if it found Azamat had conspired to obstruct justice or obstructed justice concerning any of the three objects located in the backpack,
the vaseline, the fireworks or the thumbdrive. Unlike Griffin where the jury returned a
general verdict of guilty, but was instructed that a guilty verdict could be returned if it
found that the defendant participated in either of the objects, here the jury was instructed
in the conjunctive not the disjunctive. The jury form specifically used the conjunctive
not the disjunctive when listing the objects located in backpack, and therefore, required
that Government to prove beyond a reasonable doubt that Azamat had knowledge of all
three objects. There was not an iota evidence to prove that Azamat knew the thumb drive
was in the backpack.
IV. Agents Wood’s, Azad’s and Wiroll’s Testimony were Incredible.
Agent Wood’s, Azad’s and Wiroll’s testimony were incredible. Credibility
determinations are within the jury's province, and the Court will not disturb such
determination unless there is no reasonable way a jury could have found the witnesses
believable. United States v. Hernandez , 218 F.3d 58, 64; see also United States v. Gomez-
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Pabon, 911 F.2d 847, 853 (1st Cir. 1990) (holding that a jury's assessment of a witness's
credibility will not be disturbed unless the testimony is "incredibl e or insubstantial on its
face" (quoting United States v. Aponte-Suarez, 905 F.2d 483, 489 (1st Cir. 1990) ))
(internal quotation marks omitted).
Much of Agent Wood’s testimony is beyond assailable, and crosses the line into
incredible. Apart from Agent Wood being impeached during her cross examination with
her affidavit, Agent Wood’s testimony as to Azamat’s alleged statement “I agree” was
contrived. Azamat, a nineteen year foreign exchange student, according to Agent Wood
uttered the words “I agree” to Dias. Common sense tells us that this is not how young people speak, and especially individuals that are only 19 years old. While the word
“agree” may very well be in the vocabulary of a nineteen college student, its use between
Azamat and Dias, is less than unlikely. Instead, Agent Wood’s testimony was nothing
more than contrived.
Completely unsupported by phone records and the text messages submitted as
evidence, is Agent Wood’s testimony that Azamat admitted he received a telephone call
and text message from Dias wherein Dias informed Azamat, Dzokhar was on the news at
the bomber. On April 18, 2013, Azamat’s cell phone was shut off, he could not receive
telephone calls. As to the text messages, the Government’s own printouts of text
messages from both Azamat and Dias Kadbrybayev’s phones admitted into evidence
never cooborated Agent Wood’s testimony.
Finally Agent Woods testimony that Azamat allegedly informed her he omitted
information because he was trying to defend Dzhokhar is incredible. (Day 6 Trial Tr.
page 26, lines 1-6). Right before Azamat was brought to the Police Barracks, Agent
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Walker informed Azamat that Dzhokhar was “dead”, in other Dzhokhar was beyond
defending. Additionally, the entire World by this time was aware Dzhokhar was one of
the Bombers , there was no defending Dzhokhar.
Agent Azad’s testimony that Azamat allegedly said on the evening of April 18,
2013, Bayan got upset, and then Dias and he decided to get rid of the backpack is
incredible. Agent Azad, like Agent Wood, was also impeached, only not with an
affidavit, but with his testimony in a prior proceeding. While this does not necessarily
mean that Agent Azad is completely untruthful, it casts a dark shadow on his credibility,
especially in light of the circumstances surrounding Azamat’s purported statement. Thecircumstances include the fact that Agent Azad admittedly omitted the statement from his
302, and even more troubling Agent Quinn, the Agent who was with Azad, testified that
during the same interview the topic of Bayan Kumiskali being upset never came up, and
Azamat never informed the Agents that he assisted Dias, in any way, in discarding the
backpack. Trial Tr. Day 9, page 64, lines 19-20.
Agent Wiroll’s testimony that when Azamat signed a Notice to Appear in
Immigration Court, he essentially adopted a separate and distinct document, the I-213
Report, is incredible. The two documents the Notice to Appear, the only document
Azamat was provided an actual hard copy of, and Agent Wiroll I-213 Report that was
rapidly read out loud to Azamat are two separate and distinct documents. Furthermore,
other than reading the I-213 Report to Azamat, there was no evidence that Agent Wirholl
actually provided Azamat with the opportunity to review the I-213. While Azamat
inferably was given the Notice to Appear to sign, the Notice to Appear never mentioned
the I-213 Report or its substance, nor did the Notice to Appear inform Azamat that by
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signing the Notice to Appear Azamat he adopted the language in the I-213. Trial Tr. Day
7, page 63, lines 2-12. The Notice to Appear merely informed Azamat that he had been
served with the Notice to Appear, and that he would need to go to Immigration Court. Id.
E. Dias Statement to Agent Azad was Improperly Elicited During Agent Azad’sDirect Examination in Violation of Crawford, and then Improperly Highlighted by theGovernment in Closing Argument.
During Agent Azad’s direct examination, Dias’ alleged statement implicating
Azamat in taking items from the dorm room was improperly elicited. (Trial Tr. Day 8,
page 108-109, lines 23-25 and 1-4). Agent Azad testified that Dias informed Azad, “we”
(Dias and Azamat) took the backpack and fireworks from the dorm room. Id. While
Agent Azad was later impeached during cross-examination by his testimony in another
proceeding 11 the improperly elicited testimony was already before the jury. On re-direct
the Government, attempted to elicit the same testimony, this time more explicitly, from
Agent Azad. Trial Tr. Day 9, page 41-42 lines 15-25 and 1-5. was not permitted to do so
by this Honorable Court. Id. To compound matters, the Government highlighted Agent
Azad’s testimony concerning Dias statement in its closing argument. (Trial Tr. Day 12,
page 28 lines 11-19). 12
The Sixth Amendment guarantees a criminal defendant the right "to be confronted
with the witnesses against him." U.S. CONST. amend. VI . Crawford held that
testimonial statements by declarants who do not appear at trial may not be admitted
unless the declarant is unavailable and the defendant had a prior opportunity to cross-
"" I;+*&9 '() ?+*-+ ?+-4))5*&9: Agent Azad confirmed Dias described that “he” [Dias] was the one whohad taken items from the dorm room, not “we”."# OHe [Azad] then came back, and he [Azad] spent 15 minutes with the defendant, and he said at this pointhe knows Kadyrbayev said, ‘We took backpack with fireworks.’ (Trial Tr. Day 12 Government’sSummation, page 28 lines 14-16)
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As has been set forth throughout this memorandum, this is nothing less than a
tragic situation where the jury was wholly unable to differentiate between merely uttering
words of approval the use pronouns taken out of context, and participation. The jury
lacked the legal sophistication and the wherewithal to appreciate the distinctions.
Arguably, the jury lacked the ability to separate Dias acts and intentions from those of
Azamat.
The Eight Circuit Court of Appeals, in United States v. Dodd , 391 F.3d 930 (8th
Cir. 2004), affirmed the District Court’s grant of a new trial, pursuant to Rule 33, writing:
“. . . it was within the District Court's province to weigh the evidence, disbelievewitnesses, and grant a new trial-even in dutifully rehashed the evidence that Dodd
possessed and distributed drugs, but the District Court assumed these two facts inreaching its conclusion regarding Dodd's conviction on the conspiracy charge.The District Court granted a new trial because it was “left with a perpetual‘bad taste’ in its mouth over the nature, quantity, and character of evidence” of
Dodd's involvement in the conspiracy. In these circumstances, we cannot say theDistrict Court abused its discretion in granting Dodd's motion for a new trial.Dodd, 391 F.3d at 935 (Emphasis Supplied.)”
Indeed, the instant case also leaves “a perpetual bad taste in the mouth” over the
nature, quantity, and character of evidence against Azamat– especially since most all of
the evidence presented against him was hearsay in the form of testimony form Federal
Agents that were impeached, gave inconsistent accounts, and failed to record and make
an actual record of what was they say Azamat said The government has skewed, twisted
and completely manipulated the intentions, meanings, and purposes behind Azamat
alleged words of approval. The jury was unable to appreciate or see beyond the
distortion, leaving then a very unique case where there is an genuine concern that an
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submitted during the trial, it is clear that this case is nothing less than a situation where
the jury was confused not only as to the Court’s instructions, 13 but unable to differentiate
between Azamat’s seperate conduct, or lack thereof, with that of Dias’ actions. Azamat
asks this Court to examine the entirety of the evidence presented in this case. Upon such
examination, Azamat respectfully submits this Court will find that allowing this guilty
verdict to stand will be a manifest injustice.
WHEREFORE, based on all the reasons set forth above, Azamat’s motion for a judgment of acquittal pursuant to Rule 29(c) of the Federal Rules of Criminal Procedureand/or motion for a new trial pursuant to Rule 33 of the Federal Rules of CriminalProcedure, must be granted in their entirety; or alternatively a hearing be granted on bothmotions.
Dated this 8 th day of September, 2014
Respectfully submitted,
/s/ Nicholas M. Wooldridge Esq. Nicholas M. Wooldridge Attorneys for Defendant Azamat Tazhayako
"$ W&) -. '() X;+-+K, *&')+0*)8)5 /1 '() M+),, 5*+)4'<1 3.')+ '() 0)+5*4': *&.-+D)5 '() M+),, '() X;+-+,.3*<)5 '- ()35 '() =-;+'K, *&,'+;4'*-& 4-&4)+&*&9 '() /;+5)& -. ?+--.6 “We were all shocked when theprosecution rested and the defense immediately rested,” the juror said. “We were like, ‘You’re not going toput a defense on?’ They didn’t call a single character witness. Someone said, ‘Who could they havecalled?’ How about a professor? How about a neighbor? They called no one.” See.http://masslawyersweekly.com/2014/07/21/juror-offers-insights-in-wake-of-tazhayakov-verdict/#ixzz3CluYAAqR
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I hereby certify that I caused the above document to be served on counsel of record forthe Government by filing it via the Court’s CM/ECF system on this 8 th
day of September,2014.
/s/ Nicholas M. Wooldridge Esq. Nicholas M. Wooldridge Attorneys for Defendant Azamat Tazhayakov
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