United States District Court, D. Nevada
January 4, 2017
United States of America, Plaintiff
Suren Babayan, et al., Defendant
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING
MOTION TO DISMISS [ECF NOS. 38, 47, 49 ]
Jennifer A. Dorsey, United States District Judge
Suren Babayan and Arsen Grigoryan stand charged with
trafficking contraband cigarettes and related counts. The
defendants move to dismiss the indictment under Federal Rule
of Criminal Procedure 12(b), arguing that the superseding
indictment violates their due-process rights under the Fifth
Amendment. Alternatively, they argue that the superseding
indictment should be dismissed based on outrageous government
conduct and entrapment. Magistrate Judge Leen recommends that I
deny defendants' dismissal motion because the indictment
is sufficient and defendants have not shown that the
government's conduct in this case warrants
dismissal.Defendants object. Having reviewed the
objected-to portions of the magistrate judge's report and
recommendation de novo, I overrule defendants'
objections, adopt the report and recommendation, and deny
defendants' motion to dismiss.
Standards of Review
district court reviews objections to a magistrate judge's
proposed findings and recommendations de
novo. “The district judge may accept,
reject, or modify the recommendation, receive further
evidence, or resubmit the matter to the magistrate judge with
instructions.” The standard of review applied to the
unobjected-to portions of the report and recommendation is
left to the district judge's discretion. Local Rule IB
3-2(b) requires de novo consideration of specific
objections only. Defendants do not object to the magistrate
judge's recommendation that I deny the motion to dismiss
based on outrageous governmental conduct and entrapment, so I
adopt these findings and conclusions without review.
Defendants object only to the magistrate judge's
recommendation that the motion to dismiss the
cigarette-trafficking counts under Rule 12(b) be
denied. I review that ruling de novo.
Federal Rule of Criminal Procedure 12(b)
Federal Rule of Criminal Procedure 12(b)(3)(B)(v), a
defendant may bring a pretrial motion to dismiss an
indictment for failure to state an offense. A pretrial motion
to dismiss the indictment is generally appropriate when it
involves questions of law rather than fact because “the
district court is bound by the four corners of the
indictment” and accepts as true the facts alleged in
indictment is generally sufficient if it sets forth the
elements of the offense charged in adequate detail to inform
the defendant of the charge and enable him to plead double
jeopardy. The Ninth Circuit has repeatedly
recognized that an “indictment that sets forth the
charged offense in the words of the statute itself is
generally sufficient.” “The test for validity
is not whether the indictment could have been framed in a
more satisfactory manner, but whether it conforms to minimal
The superseding indictment is sufficient to withstand a Rule
their motion to dismiss, defendants argued extensively that
they could not be charged with violating the Contraband
Cigarette Trafficking Act (“CCTA”) because the
cigarettes defendants purchased and sold are not
“contraband, ” which the Act defines with
reference to the applicable state law. Because defendants did
not intend the cigarettes for sale or distribution in Nevada
and instead exported them for sale, they were not required
under Nevada state law to purchase Nevada cigarette tax
stamps, so the cigarettes are not “contraband.”
Magistrate Judge Leen rejected this argument, reasoning that
defendants' arguments about whether they “owed any
state cigarette taxes, and whether state cigarette taxes were
actually due, are fact based determinations for the jury to
decide based on the evidence introduced at trial, and not for
the court to determine in a motion to
dismiss.”Noting that the indictment tracks the
language of the CCTA and alleges all elements of the offense,
the magistrate judge concluded that the indictment is
sufficient to withstand a pretrial motion to dismiss for
failure to state an offense.
maintain in their objections that the CCTA counts must be
dismissed for failure to state an offense because the
government has no “competent evidence” to support
its contention that the cigarettes at issue in this case can
be deemed contraband under the Act. Defendants then reurge
their argument that the cigarettes are not contraband because
no Nevada state cigarette tax was due because they did not
sell any of the cigarettes in Nevada.
with the magistrate judge that the indictment in this
case-which tracks the statutory language of the CCTA-is
sufficient to withstand a pretrial motion to dismiss. As the
magistrate judge noted, “[i]n reviewing the sufficiency
of the indictment, the court does not determine whether the
government can prove its case, only whether the indictment
states a cognizable offense.”Defendants' argument
that the indictment should be dismissed because “[t]he
government cannot present sufficient, competent, admissible
evidence to allow a reasonable trier-of-fact to determine
that [defendants] intended to sell, distribute, or otherwise
dispose of the cigarettes within Nevada”is thus
unavailing. I also reject defendants' argument that the
magistrate judge erred by “failing to force the
government to identify the theory upon which it is relying to
assert that the cigarettes at issue” are
contraband. The indictment tracks the statutory
language of the CCTA and sufficiently alleges each element of
the offense, which is generally sufficient,  and
defendants cite no authority for the proposition that the
government should be required to articulate its theory of the
case. I therefore overrule defendants' objections, adopt
the magistrate judge's report and recommendation, and
deny defendants' dismissal motion.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that
Grigoryan's motion to join Babayan's objections [ECF
No. 49] is GRANTED; defendants' objections [ECF No. 48]
are OVERRULED, the magistrate judge's report and
recommendation [ECF No. 47] is ADOPTED, and the motion to
dismiss [ECF No. 38] is DENIED.
 Babyan filed the motion to dismiss,
and Grigoryan joined in the motion. ECF Nos. 38, 39.
 ECF No. 47.
 Babayan filed objections to which
Grigoryan has filed a motion for joinder. ECF Nos. 48,
 United States v. Reyna-Tapia,
328 F.3d 1114, 1121-22 (9th Cir. 2003) (a “district
judge must review the magistrate judge's findings and
recommendations de novo if objection is made, but
not otherwise.”) (emphasis in original).
 See Nevada L.R. IB 3-2(b)
(requiring de novo consideration of specific
objections only); Carillo v. Cate, 2009 WL 2575888,
at *1 (S.D. Cal. Aug. 17, 2009) (noting that
“generalized objections” do not require de
 Defendants also argued in the Rule
12(b) portion of their motion to dismiss that the indictment
does not sufficiently allege a conspiracy, but they do not
raise this argument in their objections.
 United States v. Lyle, 742
F.3d 434, 436 (9th Cir. 2014).
 See United States v.
Milovanovic, 678 F.3d 713, 717 (9th Cir. 2012).
 United States v. Award, 551
F.3d 930, 935 (9th Cir. 2009).
 United States v. Ely, 142
F.3d 1113, 1120 (9th Cir. 1997) (quoting United States v.
Musacchio, 968 F.2d 782, 787 (9th Cir. 1992)).
 Ely, 142 F.3d at 1120
(internal citations omitted).
 ECF No. 47 at 14.
 ECF No. 47.
 ECF No. 48 at 2.
 ECF No. 47 at 13.
 ECF 48 at 2 (emphasis in
 United States v. Ely, 142
F.3d 1113, 1120 (9th Cir. 1997).