United States District Court, C.D. California
Ronald Gerard Boyajian, Defendants
Gerard Boyajian, Pro Se
Buehler, Standby Counsel Attorneys for Defendants
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)
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.
MOTION FOR NEW TRIAL UNDER FEDERAL RULE OF CRIMINAL PROCEDURE
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).
motion, defendant raises numerous issues he contends warrant
a new trial. The Court addresses each of these issue in turn.
Exclusion of DNA Evidence
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.
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
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.
Court, therefore, finds that the exclusion of defendant's
DNA evidence does not warrant a new trial.
Exclusion of Evidence to Impeach S.L.
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.
Exclusion of Evidence to Impeach Cooperating
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.
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
the Court concludes that defendant's unsupported claims
that impeachment evidence was withheld from him do no warrant
a new trial.
Exclusion of Foreign Witnesses
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.
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.
Court, therefore, finds no basis for granting a new trial
based on the purported exclusion of foreign witnesses.
Exclusion of Evidence Regarding Residency
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,
Nondisclosure of Evidence Regarding Foreign
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.
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.
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.
the Government's purported nondisclosure of
defendant's Menlo Park arrest warrants does not justify a
raises three objections related to jury instructions. The
Court addresses each of these objections in turn.
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.
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.
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