UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA :
:
v. : Crim. No. 13-10238-DPW
:
DIAS KADYRBAYEV, et al. :


DEFENDANT KADYRBAYEVS MOTION TO SUPPRESS

STATEMENTS AND THE
FRUITS THEREFROM AS OF ATTORNEY GRIFFINS NOTIFICATION TO
TROOPER LALIBERTE THAT KADYRBAYEV HAS BEEN APPOINTED COUNSEL
1

AND TO CEASE QUESTIONING OR, IN THE ALTERNATIVE, GRANT
KADYRBAYEVS APPLICATION TO QUESTION GOVERNMENT OFFICIALS



INTRODUCTION

This Memorandum of Law is submitted on behalf of Defendant Dias Kadyrbayev in
support of his motion to suppress pursuant to the Fifth, Sixth and Fourteenth Amendments to the
United States Constitution, the Massachusetts Constitution, the Massachusetts Rules of
Professional Conduct and their Application to this Matter via 28 U.S.C. Section 530B (McDade
Amendment), and this Courts inherent Supervisory Powers.
The arguments advanced are part of the totality of circumstances analysis for
suppression after examining the detention, arrest, delay in presentment and waiver issues.
Alternatively, even if this Court finds that the stop and/or arrest and/or Miranda waiver were
valid, Kadyrbayev submits that evidence could well be developed that would constitute separate
and independent grounds to suppress the statements and its fruits.

1
Massachusetts General Law Pt. III, Title I, Chapter 211D, Section 5 and 6(b) establish the
authority by which Kadyrbayev was assigned counsel. Section 6(b) clearly states: The private
counsel division shall also be assigned to represent persons in such other proceedings as the chief
counsel shall determine to be necessary. See also Exhibit A, par. 4 (Affidavit of Deputy Chief
Counsel Nancy T. Bennett, dated Apr. 24, 2014).
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The right to counsel has long been seen as the most important right afforded criminal
defendants. Thus, any intentional or negligent Government actions which infringe upon that
right must be scrutinized under the most exacting standards.
REQUEST FOR ORAL ARGUMENT PURSUANT TO RULE 7.1(D)

Oral argument is requested to address any issues not agreed to or that the Court may wish
to hear additional argument on.
PARTIES CONFERRED PURSUANT TO RULE 7.1(A)(2)

The parties have conferred and attempted in good faith to resolve or narrow the issue to
no avail. The Court ordered submission of legal memoranda on this issue during the pre-trial
hearings conducted the week of May 12, 2014.
PROCEDURAL AND FACTUAL BACKGROUND
On April 25, 2014, Kadyrbayev, through undersigned counsel, submitted a legal
memorandum in support of his application to suppress statements and any fruits therefrom based
on a number of factors. One of those factors raised the continuing questioning of Kadyrbayev
after being advised that he was a represented party by Attorney Griffin and that all questioning
should cease and not continue. See, e.g., Brief of Kadyrbayev, April 25, 2014, n. 2; Exhibit A.
On May 9, 2014, the Government submitted its response to Kadyrbayevs motion to
suppress. On this particular legal issue, the Governments entire response consisted of one (1)
paragraph on page 44 of its brief, see Exhibit A, asserted that both defendants had already
waived their Miranda rights and right to counsel. The Government further contended that
Attorney Griffin had not met or been retained by the defendants or their family members to
represent them. Indeed, Attorney Griffin did not even know the names of the persons he
allegedly represented. See Government Response, May 9, 2014, p. 44. While those particular
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facts may be accurate, they are not dispositive.
Lastly, the Government contended that under Moran v. Burbine, 475 U.S. 412 (1986),
defendants waiver of his Miranda rights is valid even though the defendant is not informed that
an attorney retained without his knowledge by a third person has asked that the defendant not be
questioned.
During pre-trial hearings the week of May 12, 2014, after this issue was raised and at the
direction of the Court, the Government provided details surrounding this issue. On May 15,
2014, the Government submitted a three (3) page Report to Court Re: Overture to State Police
by CPCS Attorney, which had attached three (3) pages consisting of three (3) separate E-Mails
between, variously, Trooper Laliberte, FBI Special Agent Timothy Quinn and AUSA John
Capin. See Exhibit B.
Contrary to the previous days assertions that Trooper Laliberte had not advised anyone
of the phone call by Attorney Griffin, let alone the contents of same, the Government now admits
that Special Agents Azad, Dolan and Blane did have knowledge of the phone call and at least
some of its contents. In fact, according to the Government Report, Azad did not relay to the
defendants any aspect of what the detective told him, see Exhibit B, page 2, nor did Laliberte
make any attempt, to comply with Massachusetts constitutional law and advise Kadyrbayev.
Laliberte acknowledges that Attorney Griffin advised him that he (1) represents the
UMass students at the barracksof which only Kadyrbayev, his co-defendant and his girlfriend
could beand (2) that he did not want them answering any questions. The Trooper has likewise
admitted that he advised Attorney Griffin, despite Agents consulting with the U.S. Attorneys
Office to obtain complaint approval, that none of the parties were under arrest. Thus, it seems
that Laliberte violated Kadyrbayevs right to counsel under the Massachusetts Constitution by
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failing to comply with the legal duty imposed upon him by the Massachusetts Supreme Judicial
Court in Commonwealth v. Mavredakis, 430 Mass. 848 (2000).
But perhaps the most important revelation in Exhibit B are the contradictions between
Laliberte and the federal agents regarding what took place that evening. The Government claims
that [n]one of those agents is aware of the substance of Lalibertes email to Special Agent
Quinn[,]see Exhibit B, p.2 (emphasis added), despite the fact that the Government attached an
E-Mail from Trooper Laliberte wherein he states that [a]fter hanging up with the attorney, I then
went into the hallway and told one of the male federal agents (I do not know [sic] whether it was
FBI or DHS), involved in interviewing the male student, about the phone call and the substance
of the conversation between the caller and me, and what the caller had said about representing
him and not wanting him to answer any questions. Shortly after giving the agent this
information, I left the barracks. Id. at 5 (emphasis added).
Likewise, Attorney Griffin, Attorney Bennett and Trooper Laliberte all indicate that at
the time of Attorney Griffins phone call questioning was complete. However, the Agents
apparently were not done with the questioning in the first part of the evening, and later six agents
accompanied defendants into their apartment and further continued the interrogation. Agent
Walker testified that he was present when Agent Azad contacted the U.S. Attorneys Office at
some point(s) through the evening in an effort to determine whether an arrest was authorized.
Without further, limited exploration of this contact(s), we do not know whether any government
attorneys knew about the Griffin call and his instruction to cease all interrogation. These
material discrepancies raise serious credibility issues warranting Kadyrbayevs request for
discovery and a hearing on this issue.

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ARGUMENT
This Court must decide, as an issue of first impression, whether government (mis)conduct
which clearly violates, at the very minimum, the Massachusetts State Constitution, and
constitutional protections under federal due process.
The inconsistent and unclear representations of the Government on this issue call for a
fair and just exploration of the facts. The ends of criminal justice would be defeated if
judgments were to be founded on a partial or speculative presentation of the facts. The very
integrity of the judicial system and public confidence in the system depend on full disclosure of
all the facts, within the framework of the rules of evidence. U.S. v. Nixon, 418 U.S. 683, 709
(1974) (emphasis added). To this end, we have placed our confidence in the adversary system,
entrusting to it the primary responsibility for developing relevant facts on which a determination
of guilt or innocence can be made. U.S. v. Nobles, 422 U.S. 225, 230 (1975).
For the reasons set forth below, Kadyrbayev respectfully requests that this Court
authorize a testimonial hearing so that defendants and the public-at-large may obtain full
disclosure of all the facts[.] Nixon, 418 U.S. at 709.

POINT I
THE GOVERNMENT VIOLATED THE DEFENDANTS RIGHT TO
COUNSEL UNDER THE MASSACHUSETTS CONSTITUTIONS

The existence of [the right to counsel] is clear. It has two sources. Michigan v.
Jackson, 475 U.S. 625, 629 (1986). [T]o deprive a person of counsel during the period prior to
trial may be more damaging than denial of counsel during the trial itself. Moulton, 474 U.S. at
484. When Attorney Griffin infomed Trooper Laliberte that he represented the defendants and to
to cease questioning, Trooper Lalibertes only duty under state law was to immediately stop
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[the] questioning and apprise [Kadyrbayev] of a specific communication from [Attorney
Griffin] that bore directly on the right to counsel. Commonwealth v. Mavredakis, 430 Mass.
848, 860-61 (2000). See also OLaughlin v. OBrien, 577 F.3d 1, n. 3 (noting the conclusion in
Mavredakis holding that the police have a duty to inform a criminal defendant of his lawyers
efforts to contact him). The Troopers failure to apprise Kadyrbayev is an unconstitutional
interference with Kadyrbayevs right to counsel. Id. at 862. This obligation affords the suspect a
choice, id. at 861, speak with the lawyer or decline to speak with the lawyer.
Here, Kadyrbayev contends that a knowing, intelligent and voluntary waiver was never
made but that even if this court did find that the Government met its burden, and a valid waiver
was made, the consequence of the failure to so inform [Kadyrbayev] is that any waiver of rights
that has been given becomes inoperative for further admissions. Only that part of the
interrogation is admissible which the prosecution proves to have taken place before the failure to
inform occurred. Id. at 861 (internal citations and quotation marks omitted).
The inconsistencies between the representations prosecutors have made to the court, the
testimony of various agents, and the unsworn statements made in Exhibit B, give rise to the
potential that the Government intentionally or otherwise interfered with Kadyrbayevs right to
counsel. The prosecutor and police have an affirmative obligation not to act in a manner that
circumvents and thereby dilutes the protection afforded by the right to counsel. Moulton, 474
U.S. at 171.
At the initial hearings, the formal proceedings argument was raised in defense of the
Governments conduct. However, while the Sixth Amendment guarantees the accused the right
to counsel after the initiation of formal charges, that is the floor, not the ceiling. The Sixth
Amendment guarantees the accused, at least, after the initiation of formal charges . . . Id. at
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487. To that end, this Court noted in U.S. v. Boskic, 2006 WL 1540488, at *7, the Sixth
Amendment attaches when formal charges have been initiated or when the government has
committed itself to prosecute. (Internal citations and quotation marks omitted). In the instant
case, the Government arguably committed itself to prosecute, as it spent hours upon hours
detaining and questioning Kadyrbayev.
Regardless, if Government agents (lawyers or nonlawyers) obtain[ed] incriminating
statements by knowingly circumventing the accuseds right to have counsel present in a
confrontation between the accused and a state agent[,] then the Sixth Amendment is violated.
Id. at 487 and n. 14 (The Sixth Amendment protects the right of the accused not to be
confronted by an agent of the State regarding matters as to which the right to counsel has
attached without counsel being present.). Here, the Government was on notice that Attorney
Griffin represented Kadyrbayev, at the very least, once he spoke to Trooper Laliberte.
The Government will argue that all of this is of no moment because the Massachusetts
Constitution is not applicable to Federal authorities or in federal courts. Without a further
necessary development of the facts, we do not know whether federal actors involvement was
sufficient to rise to the levels required under federal case law to suppress any and all statements
subsequent to the attorneys call. Complete reliance on Moran is misplaced. The Court in
Moran, before reaching its holding, noted several predicates upon which its holding seems
groundedpredicates which do not exist in this case. Initially, it was noted that the waiver was
uncoerced, id. at 422, whereas that finding has not been made in the case at bar. Further, the
Court was satisfied that there was no conspiracy or collusion on the part of the police. Id. at
423.
Likewise, the Court recognized that [n]othing we say today disables the States from
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adopting different requirements for the conduct of its employees and officials as a matter of state
law. Id. at 428. Of course, this opinion decided more than ten years before the McDade
Amendment, which reserves to the States the right to adopt different requirements as a matter of
state law, could not have contemplated that Massachusetts has, in fact, adopted its own state
law which 28 U.S.C. Section 530B makes applicable to the federal authorities.
But, perhaps, most important, the Court acknowledges that its legal analysis was limited
to the Miranda question, and not an analysis of Massachusetts law or RPCs, and not the Due
Process rights of Kadyrbayev, all of which he asserts. We do not question that on facts more
egregious than those presented here police deception might rise to a level of a due process
violation. Id. at 432. See, infra, Point III.

POINT II
THE ETHICAL VIOLATIONS COMMITTED BY VARIOUS GOVERNMENT
ACTORS REQUIRES SUPPRESSION OF KADYRBAYEVS STATEMENTS
AND ANY FRUITS THEREFROM

Kadyrbayev submits that pursuant to federal and Massachusetts law, as of Attorney
Griffins phone call, he was a represented person, and therefore those Massachusetts Rules of
Professional Conduct governing how attorneys, and their agents, deal with same must be given
teeth. Pursuant to 28 U.S.C. Section 530B, an attorney for the Government shall be subject to
State laws and rules, and local federal court rules, governing attorneys in each State where such
attorney engages in that attorneys duties, to the same extent and in the same manner as other
attorneys in that state. (emphasis added). Thus, any Federal attorneys whose work touches
upon the Commonwealths sovereignty are bound by Massachusetts law and rules. See also 28
C.F.R. Section 77.3 (attorneys for the government shall conform their conduct and activities to
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the state rules and laws). The federal agents, having been told by Laliberte of the attorneys
representation, were agents of the prosecutors and their failure to observe the RPC can be
imputed here.
Likewise, just as the Government lawyers are bound by both Massachusetts law and
rules, so, too, are the non-lawyer investigative agents under their control. See 28 C.F.R. Section
77.4(f) (Investigative Agents. A Department attorney shall not direct an investigative agent
acting under the attorneys supervision to engage in conduct under circumstances that would
violate the attorneys obligations under section 530B.). Thus, the federal agents, according to
Federal law, are not simply bound by the Massachusetts RPC, but also Massachusetts law, which
would include the right[s] created under Mavredakis, at 861.
A lawyer shall not communicate about the subject of representation with a person the
lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the
consent of the other lawyer or is authorized by law to do so. Mass. RPC 4.2 (emphasis added).
Thus, if the prosecutors in this case, or any other attorneys for the Government, e.g., the FBI or
DHS, were aware of Attorney Griffins phone call, a serious ethical question arises. See, e.g.,
infra, Thomas at 112, n.3 (The enforcement officials are agents of the prosecuting party[.]);
U.S. v. Pinto, 850 F.2d 927, 934 (2d Cir 1988) (Noting that prosecutors are bound by local RPCs,
as are non-attorney government law enforcement officers when they act as the alter ego of
government prosecutors[.] (internal citations and quotation marks omitted). A lawyer having
direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the
persons conduct is compatible with the professional obligations of the lawyer[.] See also
Mass. RPC 5.3(c) (a lawyer shall be responsible for conduct of such a person that would be a
violation of the Rules of Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders
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or with the knowledge of the specific conduct, ratifies the conduct involved[.]).
In the instance case, there are presently two indicia that require further exploration as to
the USAO knowledge of the events in question. First, Special Agent Walker testified that the
Agents were in contact with the USAO, briefing same in an attempt to obtain charge approval.
Second, Agent Azad corroborated Special Agent Walkers account that they were in contact with
the USAO regarding the nights events, and we know from Exhibit B that Trooper Laliberte
advised a male agent
2
and Special Agent Azad, amongst others, was aware of the phone call.

POINT III
THE TOTALITY OF THE CIRCUMSTANCES WARRANTS SUPPRESSION

The history of American freedom is, in no small measure, the history of procedure.
Malinski v. N.Y., 324 U.S. 401, 414 (1945) (Frankfurter, J., concurring). In this case, even if this
Court does not find that Kadyrbayevs arguments in Points I and II warrant exclusion, the
cumulative effect of the Governments conduct may nonetheless reflect such unfairness and
want of consideration for justice as to justify suppression. Boskic, 2006 WL 1540488 at *19. In
fact, Justice Scalia, in a case decided five terms ago, noted that the defendant may also seek on
remand to press any claim he might have that his Sixth Amendment waiver was not knowing and
voluntary, e.g., his argument that the waiver was invalid because it was based on
misrepresentations by police as to whether he had been appointed a lawyer, c.f., Moran.

2
The defense is hard-pressed to understand why the Government will not ascertain which Agents
Trooper Laliberte claims to have relayed the substance of his phone call with Attorney Griffin
to. The Trooper and Agents seemingly had very little difficulty recalling even the most minute
inculpatory details, but the Government does not offer any explanation as to why, if Trooper
Laliberte cannot recall which male agent he advised, they simply do not show Trooper
Laliberte pictures of all the male agent[s] present that evening.
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Montejo v. Louisiana, 556 U.S. 778, 798 (2009) (emphasis added).

POINT IV
NEED FOR DISCOVERY TO RESOLVE MATERIAL FACTUAL DISPUTES
The exact timing of this phone call is potentially critical, as it relates to when, precisely,
inculpatory statements were allegedly made in comparison to when authorities knew that
Kadyrbayev was represented. Material issues of fact are in dispute. For example, despite having
surveillance video from the barracks on the evening in question, which the government utilized
in their case-in-chief, as well as access to the barracks phone logs, recorded lines and Trooper
schedules or pay stubs, Exhibit B indicates that Trooper Laliberte believes he finally finished
his work day between 11:00 p.m. and midnight . . . [and] recalls that he spoke to the attorney a
few minutes before he left for the day. See Exhibit B, p. 2 (emphasis added).3 Assuming,
arguendo, that this is accurate, this would indicate that the call transpired potentially during the
10 oclock hour. Yet, various Special Agents testified that Kadyrbayevs allegedly inculpatory
admissions did not occur until several hours into the interview and closer to midnight, as his
interview did not begin until closer to 9:00 p.m., thus calling into question the claim that FBI
Agents were not notified of the attorney call until, conveniently, the inculpatory admissions were
complete.
Other than broad generalizations, the Exhibit is silent as to when the FBI Agents claim to
have been alerted as to the call, though Laliberte indicates in his E-Mail that [p]rior to this
phone call, one of the male agents had told me that they were nearly finished with speaking with
the student and that they would be providing the student with a ride home shortly, likely within

3 Certainly the Trooper submitted his exact hours worked that day for time and payroll. Those
records would reflect the exact hours worked, rather than his recollection a year later.
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about 10 minutes, and that he wasnt being arrested. See Exhibit B, p.4. Yet again, if Laliberte
spoke with Attorney Griffin a few minutes before he went home between 11 and midnight,
why were the defendants still at the barracks for another 3-5 hours, and, why was he advised that
the individuals were not being arrested when testimony clearly indicates that the Agents were
contacting an AUSA(s), thereby raising the RPC/McDade issue, if not for that evening then
certainly for the statements elicited the following day, April 20. In short, the timeline contained
within Exhibit B suffers from serious internal inconsistencies, and there are even greater gaps
when one tries to reconcile the times with the court room testimony of the various agents. In
light of these various inconsistencies and ambiguous claims, which potentially impact
Kadyrbayevs right to counsel, Due Process and RPC issues, Kadyrbayev respectfully requests
that this Court allow testimony on this issue.












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CONCLUSION

For all the reasons set forth herein, it is respectfully requested that the Court grant
Kadyrbayevs motion to suppress his statements and evidence derived therefrom or, in the
alternative, order a testimonial hearing wherein the Government is required to produce discovery
and witnesses and the defense is permitted the opportunity to cross-examine same and call its
own witnesses if necessary.

Dated: Westfield, New Jersey
May 23, 2014

Respectfully submitted,

/s/ Robert G. Stahl
ROBERT G. STAHL
JOSHUA F. McMAHON (on the brief)
LAW OFFICES OF ROBERT G. STAHL, LLC
220 St. Paul Street
Westfield, New Jersey 07090
(908) 301-9001
Rstahl@Stahlesq.com

Attorneys for Defendant Dias Kadyrbayev




I hereby certify that this Brief and all accompanying exhibits were served upon counsel of record
for the government by electronic mail this 23
rd
day of May, 2014.


s/ Robert G. Stahl
_________________________
By: ROBERT G. STAHL


cc: AUSAs John Capin & Stephanie Siegmann (via email)
Nicholas Wooldridge, Esq. (via email)
Derege B. Demissie, Esq. (via email)
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