Azamat Tazhayakov Testifies Against Robel Phillipos

Hoping to get a lower sentence when he is sentenced for obstruction of justice, Azamat Tazhayakov testified against his friend Robel Philippos yesterday. Phillipos is charged with making false statements to the FBI. Initially, the FBI says, he lied about being in the dorm room. Then it claims he lied about the actions of his two friends, Azamat and Dias Kadyrbayev, who were present in the dorm room, with respect to what he saw and heard later at their apartment. Tsarnaev had already been named a suspect at the time, and his photo had been released to the media. Twitter has more coverage from reporters who were live-tweeting from the courtroom. They don't seem to have used a uniform hashtag -- a search within Twitter for Robel brings most of them up.

Phillipos defense is he was so stoned on pot he didn't remember events well enough to accurately recount them. Azamat, convicted in July, testified Phillipos didn't seem all that stoned. He did confirm that Robel had smoked pot several times that night and the next morning.

Azamat, a student here from Kazakhstan, has been in custody, in a cell by himself, where he must spend 22.5 hours a day. He didn't testify at his obstruction trial in July. He told the jury yesterday:

As long as I tell the truth, it might help with my sentence,” Azamat Tazhayakov, 20, briefly testified this afternoon, telling jurors in the trial of his pal Robel Phillipos the U.S. Attorney’s Office has made no promises in exchange for his cooperation.

It was Dias, not Azamat or Phillipos who took Jahar's backpack from his dorm room, after showing Jahar's roommate a text authorizing him to take what he wanted from the room. The roommate also testified yesterday for the Government. He said Robel and Azamat were watching TV and talking to each other while Dias was searching the dorm room.

Azamat didn't do a lot for the Government -- he couldn't remember Robel telling Dias "Do what you have to do" which is what the FBI claimed Robel told them he said in response to Dias asking at the apartment whether he should get rid of the backpack. (The FBI did not record the interrogation.)

As to disposing of the backpack, there was supposedly a conversation between Dias and Azamat back at their apartment. Robel told the FBI he was asleep and didn't hear any discussion about this. He also said Azamat and Dias were speaking in Russian most of the night and he doesn't speak or understand Russian. On the witness stand yesterday, Azamat agreed he and Dias were speaking in Russian, but said he thought Robel was awake. But, and this is a big but, in his earlier statements to the FBI, Azamat couldn't remember whether Robel was asleep when he and Dias discussed the backpack. When confronted with this on cross, Azamat went back to saying he couldn't remember. (Not surprising his version changed considering he's trying to earn a sentence reduction for assisting the government. The Government insists it just tells cooperating defendants to tell the truth, but the reality is, if their truth doesn't match the Government's version of the truth, they get nothing. It's a practice makes it far too easy for defendants to embellish or lie.)

The testimony the roommate and Dias' girlfriend gave at Azamat's trial makes the events even more confusing. (See Firedoglake's excellent recap.) Dias' girlfriend, who was present that night at Dias and Azamat's apartment, testified from Kazakstan by video. She said the discussion about getting rid of the backpack was between her and Dias after they retired to the bedroom. She said she told Dias to get rid of the backpack, and he left for about 10 minutes. She didn't see it after that.

I thought the government's case against Azamat was weak and he should have been acquitted. I also think the prosecution of all three of these kids is overkill. (See this columnist who agrees.)

After initially lying, Kadyrbayev and another friend, Azamat Tazhayakov, came clean about the dumped backpack the night Tsarnaev was captured. Phillipos is not accused of involvement in the bombing, or of dumping the bag. Federal prosecutors have charged him only with lying about what he saw.

...[E]ven if the government is right, and Phillipos lied, it’s hard not to feel sorry for him. It is easy to imagine him reeling from the revelation that his friend had likely committed a terrorist attack. Drug-addled and sleep deprived, he agreed to speak to investigators repeatedly without benefit of a lawyer. An FBI agent admitted to using coercive interrogation techniques on him, going at him for hours, locking the door to the interrogation room and promising to protect him from the “wolves” — the bad cops — outside. Plenty of kids would lie in these circumstances — or confess to things that aren’t true.

The FBI may have also had the cheesiest line of the day.

The agent admitted needling Phillipos by telling him if he wasn’t on “Team America,” he was “on the bench.”

As for Robel, here's his background from an earlier post of mine, which I took from the bond pleadings. (The Government ultimately agreed to bond for him.) I uploaded the Complaint, bond motion, his mother's affidavit and Robel's resume.

The bond motion says:

The school record shows that Mr. Phillipos had taken a leave of absence for a semester and did not attend school in the spring. As a result, he had not had contact with the main suspect or the other two individuals for over two months. But by sheer coincidence and bad luck, he was invited to attend a seminar on campus on April 18. As such, he did not have much to offer the authorities regarding the investigation of the suspect.

Robel has lived in Cambridge his entire life. He is a U.S. citizen, raised by a single mother, a refugee from Ethopia who while raising him, obtained a Bachelor’s Degree and a Master’s Degree in Social Work. She is the Director of numerous prominent domestic violence programs and emergency shelters and also assists refugees in the community.

Robel was an honor student in high school. He is still in college – he had taken this semester off. The family has the strong support of their church, the Ethopian Orthodox Christian church. He has never been arrested. He has strong family and community ties and was active in civic youth programs in the city.

Interestingly, one of the affidavits filed on his behalf is by a woman who adopted an Ethopian child. She refers to the Judge castigating Robel for looking down instead of at her during his court appearance. She writes:

When I read in the paper that the judge had admonished him for looking down at the floor instead of into her eyes, I felt sad because that is a sign of respect for in Ethiopian culture– not to look into the eyes of someone older or in authority, and to speak softly.

Philippo's written statement to the FBI (following his fourth round of questioning without a lawyer) is here.

Dias's car had a fake front license tag (sold at UMass) that said Terrorista #1. His lawyer has said it was a joke. Obviously, or I doubt the school would have put its name on it.

Azamat faces a maximum of 20 years when sentenced. Each of the two counts against Robel carries a maximum of 8 years.

These kids were not involved in the bombing and had no advance notice of it. No bomb-making materials were found in Dias and Azamat's apartment. They were under no obligation to call authorities and tell what they knew, or to make any statements at all. Yet they were cooperative and agreed to assist and be interviewed. Putting them in prison for years serves no one, not even "Team America." In my opinion, none of them deserved to be charged with more than a misdemeanor.

Moral of the story: Don't talk to the Feds without a lawyer. Our prisons are filled with people who thought if they could only tell their side of the story, the cops would see it their way. It rarely happens. Ask for a lawyer immediately and don't talk until you've consulted one.

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    I agree with Jeralyn's post and analysis, (5.00 / 2) (#2)
    by Green26 on Thu Oct 09, 2014 at 10:14:25 AM EST
    especially the last 1.5 paragraphs. While lying to the police and government should not be allowed or tolerated, these kids seem fairly innocent, and misdemeanor charges and the related publicity and hassles would have been sufficient to punish them and make a general statement that lying to the government won't be tolerated.

    This is yet another example of the heavy-handedness of prosecutors and the government. Where's reasonableness and discretion? Why waste so many resources and so much money on something like this? These kids and their families and friends will now forever hate the US government.

    Prosecutors and investigators are often not your friend. The job of investigators and police is to obtain information, and many are skilled at doing that, including tricking people to get the information. Too many prosecutors refuse to look at the big picture and don't exercise enough discretion.

    Unnecessary laws, not exercising discretion, looking for feathers in caps, and over-prosecution are costly the US alot of money and resources.

    This is why the US has the highest incarceration rate in the world, by far. The US has one quarter of the world's prisoners, and 5% of the world's population.

    Incarceration stats.

    great comment (5.00 / 1) (#3)
    by Jeralyn on Thu Oct 09, 2014 at 10:18:20 AM EST
    I agree 150%

    Peter G had a great win in a 1001 case (5.00 / 2) (#13)
    by Jeralyn on Thu Oct 09, 2014 at 04:38:28 PM EST
    last year. (U.S. v. Castro, 3rd circuit No. 11-3893). His client (Castro) was charged with making a false statement to the FBI when he denied receiving money from an extortion victim. Peter argued that because the money in question came from the FBI in the course of a sting operation, his client told the literal truth when he denied having received any money from the alleged victim.

    The court agreed with Peter.

    The court said :

    "[a] false ... statement ... is an assertion which is untrue when made....The false statement must be "known by the person making it or using it to be untrue."


    [T]o properly convict Castro of violating § 1001, the government must be able to show that he made a statement to government agents that was untrue, and the government cannot satisfy that burden by showing that the defendant intended to deceive, if in fact he told the literal truth.

    ...when a statement is literally true, it is, by definition, not false and cannot be treated as such under a perjury-type statute, no matter what the defendant‟s subjective state of mind might have been.


    Castro's statement that he had not received money from [extortion victim] Encarnacion, though intended to be a lie, was therefore entirely true, and the government cannot prove the second element of the offense.

    In addressing the Government's argument, it said knowledge and belief are very different mental states:

    Congress knows how to pass laws that penalize statements made to law enforcement officers by a defendant who incorrectly believes the statements to be false.

    One more quote:

    [T]o allow a conviction when there has been a complete failure of proof on an essential element of the charged crime.... would seriously impugn the fairness, integrity, and public reputation of our courts. In short, such a conviction constitutes a miscarriage of justice.

    Way to go, Peter.

    Don't Talk Absolutism (none / 0) (#1)
    by RickyJim on Thu Oct 09, 2014 at 08:56:56 AM EST
    Don't talk to the Feds without a lawyer.

    Does that apply to only the Feds or does it cover any police functionaries? Does it apply to reporting a crime also? If you feel that you are clearly a witness and not a suspect, do you have to lawyer up first before talking?

    different topic (5.00 / 1) (#7)
    by Jeralyn on Thu Oct 09, 2014 at 01:00:12 PM EST
    This obviously is addressing someone who could be suspected of wrongdoing, not someone who witnessed a crime by strangers and reports it.

    I'm clearly not addressing someone who was walking down the street and saw some stranger run over a pedestrian and reports what they observed. It's about four kids (including the roommate) who knew and were with the publicly identified bombing suspect after the bombing.

    When a swat team shows up at your door, and leads you away in handcuffs, as it did with Azamat and Dias, you should know you are not being treated as a mere witness.

    Robel, who was interviewed four times and allowed to leave afterwards,  should have consulted with an attorney before calling the FBI and agreeing to any interview. He should have had an attorney present. The FBI didn't even Mirandize him during the first few interviews. (Miranda applies to custodial interrogations, where the person has a reasonable belief he is not free to leave.) He knew he had exposure from having been at Tsarnaev's dorm room and Azamat and Dias' apartment.


    Then Why Did the Ferguson Witnesses Lawyer Up? (none / 0) (#23)
    by RickyJim on Mon Oct 13, 2014 at 09:19:59 AM EST
    When I said on this blog that I didn't trust the accounts of witnesses who described the Brown shooting to the media, while accompanied by their lawyers, I was was met with comments like you should never talk the the police without your lawyer present, or something to that effect.

    I thought (none / 0) (#4)
    by jbindc on Thu Oct 09, 2014 at 10:22:00 AM EST
    "being stoned" was not a defense but a mitigation argument?

    I don't think the stoner thing (5.00 / 1) (#6)
    by Peter G on Thu Oct 09, 2014 at 12:07:09 PM EST
    is being advanced as a "defense." The attorney is suggesting that his client's own foolish statements cannot be taken at face value or used as reliable evidence against him, because he did not really know what he was being asked or what he was saying, when interrogated. It could also affect whether the defendant has "knowledge," at the time of the alleged offense, of particular facts which are necessary to establish guilt.  In that event, it would be a defense.  Voluntary intoxication does not ordinarily defeat "intent," but I think it can negate (i.e., create reasonable doubt about) knowledge.

    voluntary intoxication can be a defense (5.00 / 1) (#9)
    by Reconstructionist on Thu Oct 09, 2014 at 01:30:32 PM EST
     to a specific intent crime.

      I don't know enough to speak about this case to speak in more than generalities.

      I believe there is presently a split of authority as to whether a false statements charge includes the element of a specific intent to deceive.

    The court of appeals acknowledged that a minority of circuits "have imposed a specific intent require-ment" in the context of Section 1001. Pet. App. 40a & n.12. But the court declined to follow those decisions because an intent-to-deceive requirement is incon-sistent with the text of Sections 1001 and 1035 and with this Court's decision in Yermian. Id. at 40a-41a

      That's from the DOJ's brief in Natale (SCOTUS denied cert earlier this year upholdiung the conviction where the judge did not give an SI instruction to a flase statement charge under the statute applying to the health care reimbursement context but it was noted the language is similar in relevant aspect to §1001)

       Because cert was denied the circuit split has not been resolved and I think it is still an open question.

      Also, intoxication could be relevant, in some cases, simply as to whether the person fully understood the question he was answering.

      Again, I'm not familiar enoughwith the specific facts here to offer anything on application to Phillipos.


    As I live and breathe. Decon! (none / 0) (#11)
    by sarcastic unnamed one on Thu Oct 09, 2014 at 01:43:57 PM EST
    I agree (none / 0) (#8)
    by Jeralyn on Thu Oct 09, 2014 at 01:13:10 PM EST
    The statute requires the alleged misstatements be
    "knowingly and willfully" made. § 1001. Phillipos argued in pretrial motions that this requires  the government establish that Mr. Phillipos knew his statements were false when he made them. Because of his pot smoking, they argue his memory was impaired and he did not know his statements were false -- he just had an imperfect memory.

    Question (none / 0) (#10)
    by jbindc on Thu Oct 09, 2014 at 01:39:17 PM EST
    So, his attorney is quoted as saying:

    "There will be ample evidence ... much of it is undisputed that Robel spent he entire day of April 18 smoking marijuana, highly intoxicated, with several friends," Demissie said. "His memory is jumbled, confused and completely discombobulated."

    If prosecutors can show that he remembers other events of that day (and I don't know if they can) despite being "highly intoxicated", but conveniently can't remember the specific events at issue, wouldn't that throw his whole defense out the window?


    Hey, SUO (none / 0) (#12)
    by Reconstructionist on Thu Oct 09, 2014 at 02:26:02 PM EST
      Another thing I find interesting and, though not directly relevant in a strict legal sense, but worthy of consideration in terms of prosecutorial discretion is that the statute that applies to false statements to a grand jury or court (18 USC § 1623) contains a "safe harbor" type of provision. Under that statute if the person who testifies falsely "comes clean" during the same court or grand jury proceeding and admits his false statement before it "substantially affected the proceeding" then he cannot be prosecuted (assuming "it has not become manifest that such falsity has been or will be exposed").

      I can't speak as to whether the initial statement substantially affected the investigation, but if not, at least by analogy, it would be a solid reason not to prosecute.

    Certainly, I want to congratulate (none / 0) (#14)
    by NYShooter on Thu Oct 09, 2014 at 05:41:35 PM EST
    Peter on his victory, but (I hope I'm wrong) did justice lose in getting this win?

    Let's see if I can frame this question in a manner that makes some sense.

    We know that, let's say in a shooting incident, the shooter (defendant) has to only prove what his/her "heartfelt" thought was when he fired the shot(s.) into an innocent victim. If he/she can convince a judge/jury that he was truly fearful for his life than his subsequent shooting is deemed justifiable.

    Why is Peter's case, and, my hypothetical one, not analogous?

    I don't want to come off as an expert (5.00 / 1) (#15)
    by jbindc on Thu Oct 09, 2014 at 05:51:35 PM EST
    But my guess is that your premise is wrong.

    We know that, let's say in a shooting incident, the shooter (defendant) has to only prove what his/her "heartfelt" thought was when he fired the shot(s.) into an innocent victim. If he/she can convince a judge/jury that he was truly fearful for his life than his subsequent shooting is deemed justifiable.

    The defendant doesn't have to prove anything.The prosecutor has to prove

    Whether the above acts are criminal depends on whether there is an affirmative response to each of the following questions:

    1.Was the act or statement material?
    2.Was the act within the jurisdiction of a department or agency of the United States? and
    3. Was the act done knowingly and willfully?

    My post relates to (none / 0) (#16)
    by jbindc on Thu Oct 09, 2014 at 05:52:32 PM EST
    Making a false statement.

    Not sure i understand (5.00 / 1) (#17)
    by Reconstructionist on Thu Oct 09, 2014 at 05:54:40 PM EST
      In Peter's case the Court found that as a question of uncontroverted fact the statement at issue was not false. The defendant's state of mind was acknowledged to establish intent to deceive but that was not sufficient because the statement was in fact literally true. It wasn't a state of mind element lacking, it was an actus rea element. He did not in fact lie even if he intended to because he made a literally true statement

      In your case,  about the affirmative defense of self defense, the jury would  evaluate whether the defendant  established that he subjectively "believed" (note the part in the opinion distinguishing knowledge from belief) he was in imminent danger of death or serious bodily harm and whether that belief was "reasonable" (meaning the mythical reasonable person in his shoes could have perceived such an imminent threat).

      Basically, once a defendant introduces evidence of lawful self-defense, the prosecutor has to try to rebut it. Resolving such conflicting assertions of fact regarding state of mind is the purpose of a jury


    AA hypothetical twist (none / 0) (#18)
    by Reconstructionist on Thu Oct 09, 2014 at 06:02:22 PM EST
      From my quick reading of the case, it's not even clear whether the intended target of the underlying extortion knew about Castro's actions. But, what if the FBI had gone to him and told him they were conducting a sting to catch Castro trying to hire muscle to extort him and had him give the agents, say even just $100, to include in the money delivered to Castro. Would that have changed the outcome?  The denial of receiving money would no longer be literally true, would it?

    If all the other facts remained the same (none / 0) (#19)
    by Peter G on Thu Oct 09, 2014 at 08:18:15 PM EST
    the outcome on that count would have been different, Recon.  But the real lesson of this case is one that Jeralyn teaches over and over ... don't talk to the police or federal agents if you are or might be under any sort of suspicion.  Castro was acquitted of the extortion charges but convicted, as so often happens, of lying to the FBI about it.  Exactly what questions did they ask him, and what answers did he give (the precise details of which turned out to be determinative)?  Who knows, because the FBI as a matter of policy does not record its "interviews" (only, and only recently, more formal "interrogations" are recorded). My client had a different version of the "interview," but for purposes of appeal we had to assume the jury believed the cops.  Ironically, it was the agent's own rendition of the "interview" (whether or not accurate) that made Castro's statement literally the truth (even if unbeknownst to him).  (Second irony: even with this one count deleted, Castro was left with one other conviction from what was indicted as a ten-count case.  On remand for resentencing, he got the same sentence.)

    I get all that. (none / 0) (#21)
    by NYShooter on Thu Oct 09, 2014 at 11:58:43 PM EST
    That's why I began my post with the inadequate disclaimer, "Let's see if I can frame this question in a manner that makes some sense."

    But, I think I understand the issues now, and, the reason for the determination that resulted in the "not guilty" verdict.

    I was concentrating on the bigger picture, and, not on the tiny one (giving false info) which was, of course, the issue being adjudicated.



    overcharged, not stoned (none / 0) (#20)
    by thomas rogan on Thu Oct 09, 2014 at 08:43:41 PM EST
    From Boston Globe article:
    "But prosecutors assert that there was nothing coercive about the exchange and that Phillipos knew that he was free to get a lawyer or to leave anytime. They say the statement reflects the truth that spilled out of a tearful Phillipos, including that he saw "seven red tubular fireworks, approximately 6 to 8 inches in length" inside the backpack taken that day.
    Prosecutor John Capin told jurors that Phillipos's description came before widespread publicity about the recovery of Tsarnaev's backpack in a landfill, and reflects a strong memory.
    In his opening statement, Capin told jurors that Phillipos's description of the length of the tubes turned out to be as accurate as "if he had used a ruler."

    Phillipos is being overcharged, certainly, but if he said the above in a statement to police then he sure wasn't stoned out of his mind.

    If I had a ruler. . . (none / 0) (#22)
    by parse on Sat Oct 11, 2014 at 10:14:45 AM EST
    They say the statement reflects the truth that spilled out of a tearful Phillipos, including that he saw "seven red tubular fireworks, approximately 6 to 8 inches in length" inside the backpack taken that day. . . In his opening statement, Capin told jurors that Phillipos's description of the length of the tubes turned out to be as accurate as "if he had used a ruler."

    If I gave somebody a ruler and asked them to measure something, and they told me it was "approximately 6 to 8 inches in length," I would wonder if they knew how to use a ruler.