Case 1:16-cr-00127-DAD-BAM Document 95 Filed 04/11/17 Page 1 of 14
1 PHILLIP A. TALBERT
United States Attorney
2 GRANT B. RABENN
ROSS PEARSON
3 Assistant United States Attorneys
2500 Tulare Street, Suite 4401
4 Fresno, CA 93721
Telephone: (559) 497-4000
5 Facsimile: (559) 497-4099
6 Attorneys for Plaintiff
United States of America
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IN THE UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

CASE NO. 1:16-CR-00127-DAD

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Plaintiff,

UNITED STATES’ TRIAL BRIEF

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v.
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ABDULLAH ALMASHWALI,

DATE: April 18, 2017
COURT: Hon. Dale A. Drozd

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Defendant.
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I.
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A.

STATUS OF THE CASE

Abdullah Almashwali (the “defendant”) is set for trial on April 18, 2017, before the

Honorable Dale A. Drozd. The defendant was indicted on August 11, 2016 with co-defendant Chaudhry
Ahmad Farooq. The defendant is charged with conspiring to distribute and possess with intent to
distribute a controlled substance (heroin and cocaine), and two counts of distribution of a controlled
substance (heroin). See, Docket Item No. 13. Co-defendant Farooq has pleaded guilty to the conspiracy
charge and is awaiting sentencing.
C.

The defendant is in custody.

D.

The estimated duration of the trial is 3-5 trial days.

E.

The defendant has not waived trial by jury.

F.

The government intends to call approximately 7-15 witnesses in its case-in-chief. These

witnesses include custodians of business records, case agents, and potentially lay witnesses, such as co-

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UNITED STATES’ TRIAL BRIEF

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 Case 1:16-cr-00127-DAD-BAM Document 95 Filed 04/11/17 Page 2 of 14
1 defendant Farooq. The government may also call rebuttal witnesses in response to any affirmative
2 evidence presented by the defendant.
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II.

STATEMENT OF FACTS

The defendant is accused of distributing large quantities of narcotics, mostly heroin, on the
darkweb marketplace AlphaBay. AlphaBay is an illicit online marketplace accessible only through the

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TOR network. The TOR network allows users to hide their true Internet Protocol addresses when
accessing the Internet, which makes it difficult to identify the true user of a computer accessing the

9 Internet. Like its predecessor, The Silk Road, AlphaBay allows users to buy and sell illegal goods,
10 including narcotics, and requires payment in Bitcoin, a digital currency that can be transferred without a
11 third-party payment processor, such as a bank or licensed money remitter.
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The present investigation began in early 2016, when DEA agents identified “DARKAPOLLO”

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and “AREA51” as sellers of heroin and cocaine on AlphaBay. Case agents believed that both accounts
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were managed by the same person(s) because they both advertised that they imported heroin directly

16 from Afghanistan and listed the same products and quantities. On June 10, 2016, AREA 51 posted on
17 AlphaBay that: “Anybody order from darkapollo that’s my other account and is being hacked please do
18 not order from there.”
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On May 16, 2016, case agents purchased one gram of heroin from “AREA51” for approximately
$165, which was paid for with 0.451 Bitcoin. On May 20, 2016, the package (“Parcel #1”) arrived at an

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undercover address in Fresno, California. The parcel was addressed from “Jessica Brown” at 286
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Avenue X in Brooklyn, New York. Inside the parcel was a package containing a white powder that

24 tested positive for heroin.
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On May 24, 2016, case agents purchased another gram of heroin from “AREA51” for

26 approximately $245, which was paid for with 0.502 Bitcoin. On May 27, 2016, the package (“Parcel
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#2”) arrived at an undercover address in Fresno, California. The parcel was addressed from “Valerie

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UNITED STATES’ TRIAL BRIEF

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 Case 1:16-cr-00127-DAD-BAM Document 95 Filed 04/11/17 Page 3 of 14
1 Desperado” at 286 Avenue X in Brooklyn, New York. Inside the parcel was a package containing a
2 white powder that tested positive for heroin. Fingerprint analysis of Parcels #1 and 2 revealed the
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defendant’s latent fingerprints. Co-defendant Farooq’s fingerprints were not found on either parcel.

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Affixed to the postage for Parcel #1 was a Postage Validation Imprinter (“PVI”) number, which
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the Postal Service uses to identify the time, date, and location of a postage purchase. Using the PVI

7 number, case agents found that Parcel #1 was purchased from a Postal Service self-service kiosk
8 (“SSK”) at the Homecrest Post Office located at 2302 Avenue U, Brooklyn, New York at approximately
9 3:39 pm Eastern Time on May 18, 2016 using a credit card ending in 1214.
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The postage for Parcel #1 was part of a larger purchase of four other $22.95 PVI labels, totaling
$114.75. Using the credit card information from Parcel #1, case agents identified numerous purchases

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on the same day and other days. As background, SSKs are programmed to automatically take photos of
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the individual purchasing postage. A photo taken by the SSK during the cluster of purchases associated

15 with Parcel #1 shows the defendant. Further, the SSK photos of postage purchases from the same credit
16 card on other days show the defendant and co-defendant Farooq.
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The PVI number for Parcel #2 showed that it was purchased at the same SSK used to purchase
the postage for Parcel #1. The postage for Parcel #2 was part of a larger purchase of four other $22.95
PVI labels, totaling $114.75. A photo taken by the SSK during the cluster of purchases associated with

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the postage for Parcel #2 shows the defendant.
On August 2, 2016, agents conducted surveillance on the defendant and arrested him near his

23 residence at 2203 Ave. X, Brooklyn, New York. Agents learned that the defendant had been evicted
24 earlier that day and was in the process of moving his possessions to a new residence. Inside the
25 apartment, agents found numerous FedEx envelopes, other mailing materials, and silver mylar
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baggies—which were similar to the ones inside Parcels #1 and 2. The following day, the defendant’s

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former landlord at the Ave. X apartment, Aleksandr Burman, notified case agents that a cleaning crew
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UNITED STATES’ TRIAL BRIEF

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 Case 1:16-cr-00127-DAD-BAM Document 95 Filed 04/11/17 Page 4 of 14
1 hired by Burman found a clear plastic bag containing an off-white powder. On the same day, Burman
2 provided the bag to case agents. The powder tested positive for heroin.
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Also on August 2, 2016, case agents conducted surveillance on co-defendant Farooq and arrested

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him near his residence at 2584 East 21st Street, Brooklyn, New York. Case agents obtained consent to
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search the apartment and found several items of evidence, including a MacBook computer and an

7 iPhone 6 Plus. The MacBook computer was logged into DARKAPOLLO’s Alpha Bay account,
8 allowing case agents to take screen shots of account records. Agents also found packaging materials,
9 including boxes full of padded envelopes and stacks of USPS and FedEx envelopes. They also located
10 silver Mylar envelopes that matched the Mylar envelopes used to send the heroin in Parcels #1 and 2.
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The forensic case agent imaged the iPhone 6 Plus and the MacBook computer, which contained

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backups of several digital devices, including an iPhone 6 Plus (for the same phone that was found in
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Farooq’s apartment), an iPhone 6s Plus, and an iPhone 5c. The iPhone 6 Plus (both the actual phone and

15 the backup) and iPhone 6s Plus belonged to Farooq, while the iPhone 5c appears to have belonged to the
16 defendant. These devices contained thousands of text messages, including hundreds of text messages
17 between the defendant and co-defendant Farooq in which they discuss the distribution of narcotics and
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dark-web marketplaces.

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III.

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A.

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21 U.S.C. § 846 provides that:

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APPLICABLE LAW

Conspiracy to Distribute and Possess with Intent to Distribute a Controlled Substance:

Any person who attempts or conspires to commit any offense defined in this
subchapter shall be subject to the same penalties as those prescribed for the
offense, the commission of which was the object of the attempt or
conspiracy.

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The elements of 21 U.S.C. § 846 are as follows:

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First, beginning at a time unknown, but no later than in or around November 2015, and

28 continuing to in or around August 2016, there was an agreement between two or more persons to
UNITED STATES’ TRIAL BRIEF

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 Case 1:16-cr-00127-DAD-BAM Document 95 Filed 04/11/17 Page 5 of 14
1 distribute and to possess with intent to distribute a controlled substance.
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Second, the defendant joined in the agreement knowing of its purpose and intending to help

3 accomplish that purpose.
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B.

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21 U.S.C. § 841 provides that:

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(a) Unlawful acts Except as authorized by this subchapter, it shall be
unlawful for any person knowingly or intentionally—
(1) to manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense, a controlled substance ….

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Distribution of a Controlled Substance:

The elements of distribution of a controlled substance are as follows:
First, the defendant knowingly distributed a controlled substance; and
Second, the defendant knew that it was a prohibited drug.
A.

Business Records

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The United States expects to offer into evidence records from various businesses, including JP
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Morgan Chase and Gemini Trust Company, LLC., and government agencies, including the IRS and the

16 Postal Service, as records kept in the regular course of a business pursuant to Federal Rule of Evidence
17 803(6). The government plans to call the custodians of records for these entities to testify as to the
18 authenticity of the business records. If the government and the defendant agree to stipulate as to the
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authenticity of certain business records, the government will not call custodians of records for such
entities. Thus far, the defendant has agreed to stipulate as to the authenticity of the I.R.S. and J.P

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Morgan Chase records, and may also agree to stipulate to authenticity of additional records.
In addition to being admissible as an exemption to the hearsay rule, a business record must not

24 run afoul of the Confrontation Clause, which states that “[i]n all criminal prosecutions, the accused shall
25 enjoy the right … to be confronted with the witnesses against him.” See Crawford v. Washington, 541
26 U.S. 36 (2004). Crawford created a distinction between testimonial and non-testimonial documents—
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the latter not requiring live testimony to be admitted so long as they are also exempted from the hearsay

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UNITED STATES’ TRIAL BRIEF

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 Case 1:16-cr-00127-DAD-BAM Document 95 Filed 04/11/17 Page 6 of 14
1 rule. Id. at 68 (“[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers’
2 design to … excempt[] such statements from Confrontation Clause scrutiny altogether”).
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While Crawford did not provide a specific test for determining if a document is testimonial or

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not, later Supreme Court cases have looked to whether the document was prepared “for the purpose of
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establishing or providing some fact at trial …” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324

7 (2009). As for business records, Melendez-Diaz noted that such records “are generally admissible
8 absent confrontation not because they qualify under an exception to the hearsay rules, but because –
9 having been created for the administration of an entity’s affairs and not for the purpose of establishing or
10 proving some fact at trial – they are not testimonial.” Id. Further, the Ninth Circuit has held that a
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record does not become testimonial just because there is a “mere possibility” that the record could later

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be used in criminal prosecution, but that there must be some showing that the primary purpose of the
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record is for use in litigation and that this primary purpose must be determined objectively. United

15 States v. Rojas-Pedroza, 716 F.3d 1253, 1267 (9th Cir. 2013) (holding that records in an alien’s A-file
16 are not testimonial because they are prepared to record the movements of aliens, not in anticipation of
17 litigation).
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The Ninth Circuit has held that the following records are non-testimonial: certifications of
mailbox applications and bank records (United States v. Anekwu, 695 F.3d 967, 977 (9th Cir. 2012);

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autopsy reports (United States v. Lattimore, 501 F. Appx. 634, 636 (9th Cir. 2012); and warrants of
deportation (United States v. Moriel-Luna, 244 F. Appx. 810, 813 (9th Cir. 2007). As for IRS records,

23 the Eighth Circuit, in United States v. Garth, held that IRS tax returns were non-testimonial because
24 they were not prepared for litigation. United States v. Garth, 540 F.3d 766 (8th Cir. 2008) (abrogated on
25 other grounds). Here, the United States intends to introduce IRS records that fall plainly within the
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ambit of non-testimonial records, as they were not prepared in anticipation of litigation.

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UNITED STATES’ TRIAL BRIEF

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B.

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Because some of the records are voluminous and cannot easily be examined in court, the United

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Summaries and Charts

States may use a summary witness to present a summary or chart of the contents of these documents

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pursuant to Federal Rules of Evidence 1006. The government also anticipates using some of its charts
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and summaries during the opening statement, the presentation of its case-in-chief, or during the closing

7 argument. These summaries and charts will substantially assist the jury in understanding the
8 government’s proof in this case.
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It is well-established that the trial court in its discretion may allow the presentation of summary

10 evidence to guide and assist the jury in understanding and judging the factual controversy. See Fed. R.
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Evid. 1006; United States v. Skalicky, 615 F.2d 1117, 1120-1121 (5th Cir. 1980); United States v.

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Cooper, 464 F.2d 648, 656 (10th Cir. 1972). A foundation for the admission of each chart and summary
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will be laid through the testimony of various witnesses who will testify that the charts and summaries

15 accurately reflect information contained in documents already in or to be admitted into evidence. See
16 United States v. Lemire, 720 F.2d 1327, 1349 (D.C. Cir. 1983); United States v. Pollack, 417 F.2d 240,
17 241 (5th Cir. 1969).
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Courts have repeatedly allowed the use of charts and summaries similar to the ones the United
States intends to use in this case. United States v. Stephens, 779 F.2d 232 (5th Cir. 1985) (simple flow

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charts tracing the defendant's use of loan proceeds); United States v. Porter, 821 F.2d 968, 974-975 (4th
Cir. 1987) (summary of telephone numbers); United States v. Orlowski, 808 F.2d 1283, 1289 (8th Cir.

23 1986) (charts tracing the disposition of the checks generating defendant's receipts and reflecting
24 defendant's total unreported income). Courts allow the charts when the evidence involves numerous
25 exhibits which are difficult to examine in court without the charts or the charts are helpful to the jury.
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Stephens, 779 F.2d at 239; United States v. Scales, 594 F.2d 558, 564 (6th Cir. 1979).

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UNITED STATES’ TRIAL BRIEF

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C.

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To date, the United States has provided discovery to the defendants and has received one

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Reciprocal Discovery

production from the defendant. Should the defendants seek to introduce any evidence subject to

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reciprocal discovery that has not yet been produced, the United States reserves the right to move to
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exclude it, pursuant to Rule 16(d)(2) of the Federal Rules of Criminal Procedure.

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D.

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The United States expects to call four experts to testify at trial. The Federal Rules of Evidence

Expert Testimony/Expert Summary Witnesses

9 provide that:
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Testimony by Experts
A witness who is qualified as an expert by knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise if:

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(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;

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(b) the testimony is based on sufficient facts or data;

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(c) the testimony is the product of reliable principles and
methods; and

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(d) the expert has reliably applied the principles and methods to the facts of the case.

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Fed. R. Evid. 702. A witness who is “qualified as an expert by knowledge, skill, experience, training, or
education” may present expert testimony if his or her “specialized knowledge will assist the trier of fact

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to understand the evidence or to determine a fact in issue.” See id.; United States v. Espinosa, 827 F.2d
604, 612 (9th Cir. 1987).
The United States intends to call as expert witnesses: (1) Michael Hall, Senior Fingerprint

24 Specialist, Drug Enforcement Administration; (2) Tigran Gambaryan, Special Agent, IRS-Criminal
25 Investigation; (3) Ulises Solorio, Special Agent, Homeland Security Investigations; and (4) Kulbir
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Mand, Special Agent, IRS-Criminal Investigation. The United States notified defense counsel on March

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20 and 28, 2016 of its intent to call these expert witnesses, along with a summary of their testimony and
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UNITED STATES’ TRIAL BRIEF

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 Case 1:16-cr-00127-DAD-BAM Document 95 Filed 04/11/17 Page 9 of 14
1 a copy of each witness’ curriculum vitae. The United States also gave notice to defense of its intent to
2 call a chemist from the DEA to testify to the testing of the narcotics in this case, but the defendant has
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agreed to stipulate to the relevant substances in this case. The United States is thus not planning to call
the DEA chemist as a witness at trial. 1

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Mr. Hall will testify about locating and analyzing latent fingerprints associated with the

7 defendant on the two mail parcels purchased by DEA as part of its undercover investigation. Mr. Hall
8 will also testify about the procedures he used to locate the latent fingerprints and the methodology he
9 used to compare the latent fingerprints to the defendant’s known fingerprints. Mr. Hall will also testify
10 that co-defendant Farooq’s fingerprints were not found on the parcels. Mr. Hall’s testimony will be
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based on his experience and training with the DEA, his education, and his analysis of the specific pieces

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of evidence submitted to him for fingerprint analysis in this case.
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Special Agent Gambaryan will testify as a subject-matter expert on the dark web and digital

15 currency. Mr. Gambaryan’s qualifications supporting his testimony include his training and experience
16 as a Special Agent with IRS-CI, his accounting and auditing background, and his involvement in federal
17 criminal investigations involving cybercrime, the dark web, and digital currency.
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Special Agent Solorio will testify about the seizure of computers and an iPhone from codefendant Farooq. He will also testify about the “imaging” of those digital devices and the electronic

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location, i.e. “file path,” and other data points associated with computer files obtained by law
enforcement in this case. Mr. Solorio’s qualifications supporting his testimony include his training and

23 experience as a Special Agent with HSI, his training and background as a computer forensic examiner
24 for HSI, and his investigation of this case
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Defense counsel has also indicated to the government that they will stipulate that the substance
27 found at Almashwali’s residence in May 2015 contained heroin, thus eliminating the need for the
government to call a chemist from NYPD to testify to this fact (defense counsel has, at the same time,
28 reserved its right to argue against the admissibility of this evidence).
UNITED STATES’ TRIAL BRIEF

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Finally, Special Agent Kulbir Mand will testify as a subject-matter expert about his analysis of

2 financial and tax records associated with the defendant. SA Mand’s qualifications supporting his
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testimony include his training and experience as a special agent with IRS-CI, his training and experience

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in financial investigations, and his involvement in the investigation of this case.
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The use of such expert summary witnesses and the introduction of expert summary charts to

7 assist the jury in understanding the government’s case has been upheld by the Ninth Circuit. See United
8 States v. Marchini, 797 F.2d 759, 765-66 (9th Cir. 1986). In Marchini, the defendant appealed his
9 conviction arguing that the government’s use of a summary expert witness and admission of summary
10 charts “usurped the fact-finding function of the jury.” See id. at 766. The Ninth Circuit rejected the
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defendant’s argument and found no abuse of discretion by the district court in admitting the summary

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testimony and summary chart “to assist the jury in understanding this tax case.” Id. In so holding, the
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Ninth Circuit reasoned that the summary witness: 1) had been qualified as an expert; 2) had based his

15 calculations on the evidence at trial, including “having heard the testimony of previous witnesses and
16 having reviewed the government’s exhibits;” and 3) that the defense had cross-examined the summary
17 witness. See id. at 765-66.
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E.

Witness Exclusion

Pursuant to Fed. R. Evid. 615, the government may move for exclusion of all witnesses until

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their testimony has been completed. The government will further move that case agents John Rabaut,
DEA, Christen Brook, DEA, and Kulbir Mand, IRS-CI, be exempt from the exclusion order under the

23 same rule. See United States v. Little, 752 F.2d 1420, 1441 (9th Cir. 1985). The United States believes
24 the agents should be exempted from any sequestration order as their knowledge qualifies them as
25 essential to counsel in understanding and presenting the case properly. See United States v. Seschillie,
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310 F.3d 1208 (9th Cir. 2002). In addition, expert witnesses Michael Hall, DEA, Tigran Gambaryan,

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IRS-CI, and Ulises Solorio, HSI, should be exempt from any order excluding witnesses because the
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UNITED STATES’ TRIAL BRIEF

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1 government will move for them to be qualified as an expert witness.
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F.

Improper Defenses, Argument, and Testimony

The government intends to file its motions in limine on April 11, 2016. In that filing, the

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government will move to prevent the defendant from asserting improper defenses, calling improper
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witnesses at trial, and eliciting inappropriate evidence at trial, including: (1) eliciting self-serving

7 statements from other witnesses; and (2) argument designed to encourage jury nullification, including
8 evidence related to potential penalties or punishment, evidence related to sympathy, and evidence
9 related to the government’s charging decisions.
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The government will also move for the Court to admit evidence that in May 2015 the defendant
possessed 158 grams of heroin at his apartment in Brooklyn, New York, and evidence of the defendant’s

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reported income in tax years 2014 and 2015. Even though the government does not believe that such
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evidence is admissible subject to Rule 404(b), it provided notice of potential Rule 404(b) to the

15 defendant on March 30, 2017. In addition to these in limine motions, the government reserves its right
16 to make additional evidentiary arguments prior to and during the trial.
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G.

Statements of Co-Conspirators and Co-Schemers

The government may introduce statements of the defendant’s co-conspirator, Chaudhry Ahmad
Farooq, about the scope and substance of the conspiracy. Fed. R. Evid. 801(d)(2)(E) provides that

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statements offered against an opposing party and made by the party’s co-conspirator during and in
furtherance of the conspiracy are not hearsay statements. To lay a foundation for admission of co-

23 conspirator statements, the government must show that there was a conspiracy involving the declarant
24 and the non-offering party, i.e. the defendant(s), and that the statement was made during the course and
25 in furtherance of the conspiracy. See Fed. R. Evid. 801(d)(2)(E); see also United States v. Bourjaily,
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483 U.S. 171, 175 (1987).

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The existence of a conspiracy and the defendant’s involvement in it are preliminarily questions

2 of fact that are resolved by the trial judge under Fed. R. Evid. 104(a). See Bourjaily, 483 U.S. at 175
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(1987). The trial court is not bound by the rules of evidence, except with respect to privileges, when

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making its finding. Id. at 177-78 . The government must prove the preliminary questions of fact by a
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preponderance of the evidence. Id. at 175-76 . The courts apply a “liberal standard” in determining

7 whether a statement was made in furtherance of the conspiracy. See United States v. Siegelman, 640
8 F.3d 1159, 1181 (11th Cir. 2011). Further, the government need not show that the declarant is
9 unavailable, see United States v. Inadi, 475 U.S. 387 (1986), or identify the declarant by name. See
10 United States v. Ayala, 601 F.3d 256, 268 (4th Cir. 2010).
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The declarant “need not be indicted to be considered a coconspirator for the purposes of rule

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801(d)(2)(E).” United States v. Williams, 989 F.2d 1061, 1067 (9th Cir. 1993) (citing United States v.
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Everett, 692 F.2d 596, 601 (9th Cir. 1982)); see also United States v. Lutz, 621 F.2d 940, 946 (9th Cir.

15 1980) (affirming admission of out-of-court statements by co-participants in a fraud scheme). Nor does
16 the conspiracy even have to be charged in the indictment in order to admit co-conspirator statements.
17 See United States v. Trowery, 542 F.2d 623, 627 (3rd Cir. 1976) (“the absence of a conspiracy count has
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no bearing on the court’s determination of the competence of co-conspirator evidence”); see also United
States v. Sinclair, 433 F. Supp. 1180, 1191 (D. Del. 1977). Accordingly, an individual may be a

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member of a conspiracy even though the person does not know all of the purposes of or participants in
the conspiracy. See United States v. Escalante, 637 F.2d 1197, 1200 (9th Cir. 1980); United States v.

23 Kearney, 560 F.2d 1358, 1362 (9th Cir. 1977); see also, Unites States v. Peralta, 941 F.2d 1003, 100624 07 (9th Cir. 1991) (statement admissible as co-conspirator statement even though declarant acquitted of
25 conspiring). Indeed, while the Rule speaks in terms of participation in the “conspiracy,” the Ninth
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Circuit has stated that the rule really “applies to statements made during the course and in furtherance of

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any enterprise, whether legal or illegal, in which the declarant and the defendant jointly participated.”
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UNITED STATES’ TRIAL BRIEF

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1 United States v. Layton, 855 F.2d 1388, 1399 (9th Cir. 1988), overruled on other grounds by People of
2 the Territory of Guam v. Ignacio, 10 F.3d 608, 612 (9th Cir. 1993).
3

Here, the defendant is charged with conspiring co-defendant Farooq to distribute controlled

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substances. At trial, the government will prove that the defendant conspired with Farooq. As such, the
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government will submit that any statements made by Farooq during and in furtherance of the conspiracy

7 are co-conspirator statements.
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H.

Proof of Conspiracy

9

The government can prove the charged conspiracy by the direct testimony of witnesses,

10 including co-conspirators, or through circumstantial evidence. See United States v. Bishop, 1 F.3d 910,
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911 (9th Cir. 1993). “A formal agreement is not necessary; rather the agreement may be inferred from

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the defendants’ acts pursuant to the scheme, or other circumstantial evidence.” United States v. Bibbero,
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749 F.2d 581, 587 (9th Cir. 1984). Further, once the government has produced evidence—whether

15 direct or circumstantial—of a conspiracy, only “slight” evidence is needed to connect an individual to
16 the conspiracy. United States v. Duncan, 919 F.2d 981, 991 (5th Cir. 1990). Here, the United States
17 intends to prove its case through statements of the defendant and co-defendant Farooq found on the
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seized digital devices, business records, and evidence obtained during the undercover investigation.
I.

Stipulations

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The defendant has informed the government that he will stipulate to certain items, including that:
(1) the substances found in the undercover purchases contained heroin; (2) the substance found at his

23 apartment in May 2015 contained heroin; (3) the man cleaning his former apartment on August 3, 2015
24 found a baggie containing heroin and gave the baggie to the defendant’s former landlord; (4) his 2014
25 and 2015 tax records are authentic business records of the I.R.S.; and (5) his bank and credit card
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statements from J.P. Morgan Chase are authentic business records of J.P. Morgan Chase. Based on

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defense counsel’s representations that the defendant will stipulate to these items, the government is not
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UNITED STATES’ TRIAL BRIEF

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 Case 1:16-cr-00127-DAD-BAM Document 95 Filed 04/11/17 Page 14 of 14
1 planning to call the DEA chemist, the NYPD chemist, the cleaning man, a custodian of record from the
2 I.R.S., and a custodian of record from J.P. Morgan Chase. Should defense counsel not agree to these
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stipulations at the time of trial, the government will be required to request an adjournment of the trial to

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arrange for these witnesses to travel to Fresno for testimony.
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Dated: April 12, 2016

PHILLIP A. TALBERT
Acting United States Attorney

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By: /s/ GRANT B. RABENN
GRANT B. RABENN
Assistant United States Attorney

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UNITED STATES’ TRIAL BRIEF

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