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U.S.A. v. Boyajian

United States District Court, C.D. California

July 11, 2016

U.S.A.
v.
Ronald Gerard Boyajian, Defendants

          Ronald Gerard Boyajian, Pro Se

          George Buehler, Standby Counsel Attorneys for Defendants

         MOTION FOR NEW TRIAL UNDER FEDERAL RULE OF CRIMINAL PROCEDURE 33 (DKT. 1417, 1425, FILED MAY 10 AND 18, 2016) MOTION TO STRIKE FINDINGS, AND FOR NEW TRIAL ON GROUNDS OF OUTRAGEOUS GOVERNMENT CONDUCT AND JUDICIAL ERROR EMPANELING ANONYMOUS JURY (DKT. 1432, FILED MAY 20, 2016) MOTION FOR INQUIRY OVER POSSIBLE JUROR MISCONDUCT (DKT. 1423, FILED MAY 13, 2016) MOTION TO DISMISS PROSECUTION FOR OUTRAGEOUS GOVERNMENT CONDUCT; TRANSLATOR FRAUD (DKT. 1405, FILED MAY 2, 2016) MOTION FOR JUDGMENT OF ACQUITTAL UNDER RULE 29, OR IN THE ALTERNATIVE, FOR ARREST OF JUDGEMENT UNDER RULE 34 (DKT. 1416, FILED MAY 9, 2016)

         Defendant Ronald Gerard Boyajian was charged with Traveling with Intent to Engage in Illicit Sexual Conduct, in violation of 18 U.S.C. § 2423(b) (Count One); Engaging in Illicit Sexual Conduct in a Foreign Place with a Minor Girl, in violation of 18 U.S.C. § 2423(c) (Count Two); and Commission of a Felony Offense Involving a Minor by an Individual Required to Register as a Sex Offender, in violation of 18 U.S.C. § 2260A (Count Three). On January 27, 2016, a trial began in this case against defendant. On March 7, 2016, the jury returned a verdict of guilty on all counts.

         I. MOTION FOR NEW TRIAL UNDER FEDERAL RULE OF CRIMINAL PROCEDURE 33

         Defendant moves for a new trial pursuant to Federal Rule of Criminal Procedure 33. Dkt. 1425. Under Rule 33, a Court may grant a new trial "if the interest of justice so requires." Fed. R. Crim. P. 33(a). "A motion for a new trial is directed to the discretion of the district judge. It should be granted only in exceptional cases in which the evidence preponderates heavily against the verdict." United States v. Pimentel, 654 F.2d 538, 545 (9th Cir. 1981) (internal citations removed). The defendant has the burden to justify the need for a new trial. United States v. Shaffer, 789 F.2d 682, 687 (9th Cir. 1986).

         In his motion, defendant raises numerous issues he contends warrant a new trial. The Court addresses each of these issue in turn.

         A. Exclusion of DNA Evidence

         Defendant argues that the Court improperly excluded "critical exculpatory" DNA evidence at trial. The DNA evidence defendant refers to consists of several DNA swabs purportedly collected from S.L., the victim-witness in this case. At trial, the Government challenged the admissibility of these swabs as well as the results of any testing conducted on the swabs. Specifically, the Government argued that defendant had failed to establish a chain of custody demonstrating that the swabs were, in fact, collected from S.L. After hearing testimony from several witnesses, the Court determined, on February 26, 2016, that the Government was correct and that defendant had failed to establish a proper chain of custody for these DNA swabs.

         In his motion for a new trial, defendant argues that the exclusion of this evidence was error. First, he argues that "any question about the source or chain of custody went to the weight, not the admissibility of the [DNA] evidence." Mot. for New Trial, at 4. Defendant is correct that issues of chain of custody speak to the weight to be afforded evidence, not its admissibility. See United States v. Young, 510 Fed.App'x 610, 611 (9th Cir. 2013) ("The possibility of a break in the chain of custody goes only to the weight of the evidence, not to its admissibility.") (citing United States v. Harrington, 923 F.2d 1371, 1374 (9th Cir. 1991)). However, the Court did not merely conclude that defendant had failed to establish a proper chain of custody. Rather, based on evidence adduced before and during trial, the Court found that defendant had failed to establish that the relevant swabs actually originated from S.L. and that, even if he could do so, "the DNA evidence in this case appear[ed] to be of exceedingly limited relevance." Dkt. 1342, at 3. Taken together the Court concluded that the DNA evidence should be excluded pursuant to Federal Rule of Evidence 403 and on the grounds that defendant had failed to establish that the DNA evidence was relevant and/or authentic. In his motion, defendant raises no new arguments or evidence to contradict those findings.[1]

         In addition, defendant argues that he "should have been given the opportunity to challenge the government's late claim of unreliability of the sample." Mot. for New Trial, at 4. However, defendant was given the opportunity to challenge the Government's challenge to the reliability and relevance of the DNA evidence. In the middle of trial, the Court held a lengthy evidentiary hearing outside the presence of the jury in which defendant was given ample opportunity to establish the reliability and relevance of the DNA evidence. The Court also heard testimony from several witnesses from Cambodia who potentially could have observed DNA swabs being collected from S.L., and the Court heard testimony from defendant's proposed DNA expert. Accordingly, this argument is unavailing as well.

         The Court, therefore, finds that the exclusion of defendant's DNA evidence does not warrant a new trial.

         B. Exclusion of Evidence to Impeach S.L.

         Defendant argues that the Court denied him his "Confrontation Clause rights by improperly precluding him from impeaching S.L. with her prior inconsistent testimony." Mot. for New Trial at 4. This argument is without merit. First, defendant fails to identify any specific statement of S.L.'s that the Court improperly excluded. Thus, the Court cannot determine to which prior inconsistent statements defendant is referring. Second, to the extent defendant is contending that the Court improperly excluded evidence regarding S.L.'s prior sexual abuse pursuant to Federal Rule of Evidence 412, this issue was heavily litigated by the parties throughout trial. Apart from conclusorily stating that the Court improperly excluded this evidence, in his motion defendant fails to set forth any argument explaining how the Court's rulings were in error. Accordingly, the Court finds no basis for granting a new trial based on the exclusion of S.L.'s purportedly inconsistent testimony.

         C. Exclusion of Evidence to Impeach Cooperating Witnesses

         Defendant argues that he was "not permitted, through exclusionary rulings by the Court and non-disclosure by the government, to effectively cross-examine the government's cooperating witnesses." Mot. for New Trial, at 4. First, defendant argues that, in exchange for the testimony of confidential informant I.V., the Government agreed not to prosecute I.V. for child abuse. However, defendant provides no support for his allegation that I.V. was suspected of engaging in child abuse or that the Government entered into an agreement not to prosecute I.V. if he agreed to testify against defendant. Without any supporting documentation, records, or other evidence, defendant's bald assertions are insufficient to support granting a new trial.

         Defendant also contends that the Government gave benefits to child-victim K.L. that it failed to disclose. However, defendant does not identify the nature of these benefits or what benefits he thinks the Government provided K.L. that it failed to disclose. Moreover, prior to the testimony of each victim who testified, the Government disclosed the benefits that victim had received, if any. Defendant fails to put forth any evidence of benefits the Government failed to disclose in these proffers. Finally, during trial defendant had the opportunity to question each victim-witness regarding benefits they may have received in exchange for their cooperation with the Government. Indeed, during his cross-examination of K.L., defendant expressly asked her: "Were you given any kind of benefits for pointing out Mr. Boyajian." K.L. Testimony, 2/16/16 PM, at 111. K.L. responded: "The benefit I receive is that I have a chance to sit here today and tell everyone what happened to me." Id.

         Accordingly, the Court concludes that defendant's unsupported claims that impeachment evidence was withheld from him do no warrant a new trial.

         D. Exclusion of Foreign Witnesses

         Defendant contends that he "was precluded by the Court and blocked by the government from presenting testimony from foreign witnesses that was essential to his defense." Mot. for New Trial, at 5. First, defendant contends that the Government "orchestrated the denial of visas for defense witnesses to prevent them from testifying for the defense." During trial, defendant raised similar allegations that the Government was obstructing the ability of various Cambodian witnesses to obtain visas so that they could travel to the United States to testify on defendant's behalf. As the Court explained then, "neither this Court, nor the prosecutors in this case, have any control over how and under what circumstances the State Department determines to issue visas to persons who wish to travel to the United States." Dkt. 1330, at 1. Moreover, defendant has put forth no evidence whatsoever to suggest that the Government had any involvement with the visa applications of defendant's foreign witnesses.

         Defendant also contends that the Court improperly refused to permit foreign witnesses to testify via video feed. After it became apparent that several of defendant's witnesses would not be able to travel to the United States to testify on his behalf, defendant requested that these witnesses be permitted to testify via live video feed. The Court denied this request. Defendant now contends that the Court's ruling was in error. However, to permit these witnesses to testify via video feed would have been in direct contravention of the Federal Rules of Criminal Procedure. See Fed. R. Crim. P. 26 ("In every trial the testimony of witnesses must be taken in open court, unless otherwise provided by a statute or by rules adopted under 28 U.S.C. §§ 2072-2077."). Moreover, the procedure for obtaining testimony from foreign witnesses who are unable to appear at trial is explicitly set forth in Federal Rule of Criminal Procedure 15. See Fed. R. Crim. P. 15(c)(3) (setting forth procedures for "taking depositions outside the United States without the defendant's presence"). To the extent any of defendant's foreign witnesses were unable to appear at trial, he was required to comply with these procedures. Accordingly, the Court finds that it was not an error to preclude defendant's foreign witnesses from testifying via video feed.

         The Court, therefore, finds no basis for granting a new trial based on the purported exclusion of foreign witnesses.

         E. Exclusion of Evidence Regarding Residency

         Defendant contends that the Court "erroneously excluded evidence regarding Mr. Boyajian's residency." Mot. for New Trial, at 5. However, defendant fails to identify what evidence the Court "erroneously excluded." Moreover, defendant's argument is perplexing. In an order dated December 17, 2015, the Court expressly permitted defendant to introduce evidence regarding his alleged residency in Cambodia. Dkt. 1105, at 13 ("Accordingly, the Court finds that defendant may present, as a defense to Count Three, evidence that he was a resident of Cambodia at the time of the charged illicit sexual acts."). And, at trial, defendant submitted evidence regarding his housing accommodations in Cambodia and his Cambodian bank accounts. Accordingly, contrary to defendant's assertion, he was permitted to present, and in fact did present, evidence of his alleged Cambodian residence. This argument is, therefore, unavailing.

         F. Nondisclosure of Evidence Regarding Foreign Residency

         At trial, the Government submitted evidence that defendant was a resident of Menlo Park, California at the time he committed the charged offenses. Defendant now contends that at some point (although he does not specify when) the Menlo Park Police Department issued arrest warrants for defendant for failing to provide notification that he had moved, as required by the terms of his sex offender registration. Defendant appears to contend that this evidence would have demonstrated that he was not a resident of California, such that he was not required to register as a sex offender. This argument fails for several reasons.

         First and foremost, defendant submits no evidence of these purported arrest warrants from the Menlo Park Police Department. For its part, the Government states that it has neither obtained nor seen warrants for defendant from the Menlo Park Police Deparatment. And the Government represents that, on September 27, 2010, it issued a trial subpoena to the Menlo Park Police Departmetn for "Copies of all documents pertaining to Ronald Boyajian, date of birth August 8, 1960." Opp'n to Mot. for New Trial, at 9. On October 7, 2010, the Menlo Park Police Department responded to this subpoena by producing defendant's sex offender registration packet. No warrants of the type defendant describes were included in this packet.

         Second, even if the Menlo Park Police Department had issued arrest warrants for defendant for failing to notify them that he had moved, that would not warrant a new trial. At trial, the Government was required to prove that defendant was required by California law to register as a sex offender when he traveled in foreign commerce. Even if a warrant had issued, it would merely demonstrate that at some point in time defendant failed to comply with one aspect of his registration requirements. Moreover, the Government submitted evidence at trial that defendant was required to register as a sex offender and, in fact, did so in Menlo Park in September 2008, prior to traveling in foreign commerce.

         Accordingly, the Government's purported nondisclosure of defendant's Menlo Park arrest warrants does not justify a new trial.

         G. Jury Instructions

         Defendant raises three objections related to jury instructions. The Court addresses each of these objections in turn.

         1. Procedural Objections

         First, defendant argues that he was "unfairly deprived of a meaningful opportunity to participate in the formulation of the jury instructions." Mot. for New Trial, at 5. This argument is unavailing.

         The Government represents that, on January 13, 2016, more than two weeks before trial began, it circulated an email containing draft jury instructions to the members of the defense team. See Dkt. 1449, Ex. D (email from Government counsel with draft jury instructions attached). Defendant failed to respond to the Government's email or coordinate with the Government to prepare proposed joint jury instructions. Accordingly, on January 20, 2016, the Government unilaterally submitted its proposed jury instructions to the Court. Although the Court did not address jury instructions until almost two months later at the close of trial, defendant did not at any point submit his own proposed jury instructions.

         Near the conclusion of trial, the parties and the Court held lengthy hearings to discuss the jury instructions. Defendant was present for the majority of these hearings. In the middle of the parties' discussions, defendant requested a continuance so that he could research jury instructions. Because defendant had at that point had nearly two months to review the Government's proposed jury instructions, and even longer to prepare his own proposed jury instructions, the Court denied this request. Thereafter, defendant requested that he be permitted to leave the courtroom to return to the Metropolitan Detention Center ("MDC") so that he could prepare for his closing argument. The Court and the parties had the following exchange with defendant:

THE COURT: The question we're asking is because you want to go back to MDC and get prepared --
MR. BOYAJIAN: For argument.
THE COURT: Yes. Do you waive your appearance at any further discussion of jury instructions today?
MR. BUEHLER: Without -- and that that would not waive the previously expressed --
THE COURT: Without waiving any objections. You keep all your ...

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