After Acquittal for Murder, Suspect Is Still Made to Pay

This was Garen Zakarian’s explanation of how his fingerprint got on the silencer of the gun used to kill travel agent Benita Mikailian: Weeks before, he was riding in a pal’s Mercedes when this odd cylinder rolled from under a seat, and he touched it. “I thought it was a car shock absorber,” he said.

And this was his sister’s explanation when Glendale police caught her rummaging in the bushes where the weapon had been dumped: She said that “she was sick and that she was throwing up,” an officer recalled.

They were the sort of explanations that had homicide detectives rolling their eyes, saying: We can’t wait to get this one before a jury. Police even had a ticking-clock motive: Zakarian had to steal 80 airline tickets from the travel agent, right then, to salvage his Armenia-to-America charter business, which had passengers stranded in Paris.

But then jurors got the case last Christmas. Not guilty.

The acquittal, however, did not end The People v. Zakarian. Enraged local law enforcement officials pleaded with their federal counterparts to pick up the case, to try Zakarian, in effect, for the same crime. Simply because “this was an outrageous case,” as Glendale Det. Jon Perkins put it.

Such requests raise sensitive legal issues. The protection against double jeopardy is a staple of the Constitution.

Still, federal authorities occasionally take a second bite of the apple after local prosecutions have failed. It’s often in high-profile civil rights cases, such as the Rodney G. King beating, when Civil War-era laws were used to retry the LAPD officers acquitted in Simi Valley.

But to do it in a low-profile case with no such political overtones? The request must pass muster with review committees, the local U.S. attorney and the Justice Department in Washington. Such approval was granted only 86 times nationally in the last fiscal year--fewer than two cases per state.

One, though, was the case of Garen Zakarian.

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So it was that the slender 31-year-old again faced a jury this month, now in federal court, to learn if another 12 people would buy his explanation of how his print got on that silencer--or whether he would spend life in prison for killing Benita Mikailian.

Except the federal charges didn’t use the “M word.” They accused him of “robbery and physical violence affecting interstate commerce.”

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Benita Mikailian was raised in Iran, fled after the revolution, worked in Paris as a ticketing agent, then came to America with her brother in 1983. “She was a veteran in the travel industry,” the brother recalled. “She spoke French fluently, English, Armenian.”

She opened her own agency in Glendale, a center of Los Angeles County’s 250,000-strong Armenian community, in 1989.

Zakarian emigrated from Armenia that same year.

He was an educated man, trained as a civil engineer. He called his business Econo Trans, offering flights to and from Armenia. “Round trip . . . $1,150, one way around $650,” he said.

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Eventually, he said, “I was living in a new townhouse that I designed, expensive furniture, clothing. . . . I had five cars, two Mercedes cars, an Explorer.”

Police would say he was a con man. Because his business was not licensed to issue tickets, they said, he would get them from area agents--and sometimes not pay all the bill. He kited checks to make his accounts look flush, they said, and once sent someone a worthless deposit slip to suggest big money was coming in.

But by October 1994, the balance in one of his checking accounts was between $42 and $68, another between $28 and $32.

So it was no simple matter when he needed 80 tickets for a group making its way from Armenia, through Paris. Testimony showed that he tried unsuccessfully to get a Hollywood travel agent to advance him credit before asking Mikailian to issue him tickets.

Zakarian gave her two checks for $21,000 each. Associates said she called his bank--then wouldn’t turn over the tickets.

She stayed in her office late on Oct. 6, 1994, making a last phone call about 8 p.m. The next morning, an employee found her body, shot five times in the chest. Four of the bullets hit her heart.

Benita Mikailian’s uncle was weeping when he showed up at the Glendale police station hours later and asked to see the detective in charge. Led to the homicide division, he slumped to the ground and began kissing the chief detective’s feet, pleading: Please find the animal who did this.

From the start, detectives knew it was no traditional robbery. Left at the scene were Mikailian’s Rolex watch, two rings, a pendant and $1,700.

Even the 80 tickets were still there--locked in a wooden cabinet.

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What seemed missing? Zakarian’s two rubber checks were nowhere to be found. Also a stack of 80 airline auditor’s coupons--the ones that went with the tickets. An employee told authorities they’d been on Mikailian’s desk.

Prosecutors later theorized that the harried killer mistook the coupons for the actual tickets.

The coupons surfaced at Paris’ Charles de Gaulle Airport, delivered on an overnight flight by a courier for Zakarian. Zakarian’s fingerprint was on the coupons.

And a print--his left ring finger--was on the silencer.

A man living 3 1/2 blocks from the scene of the slaying found it Oct. 8, in a black sports bag discarded in his bushes. Also in the bag were the .38 Beretta that fired the bullets and a fully automatic .45. The serial numbers on both were obliterated.

Also in the bag was a blue-and-red ski glove. Police discovered the matching glove in Zakarian’s apartment, under a bed.

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He was arrested. So was his sister Anait, 22, when she pulled her car over by those bushes around midnight Oct. 11, apparently trying to recover the damaging evidence--and unaware police had it.

The case was filed as capital murder--one during a robbery--carrying the death penalty. Asked to handle it was one of Los Angeles’ most formidable prosecutors, Sterling “Ernie” Norris, who sent William Bonin, the “Freeway Killer,” to the death chamber.

Norris called this case “airtight.”

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Zakarian’s attorney called it a frame job.

Malcolm Guleserian was a broad-shouldered, retired policeman who had gone on to practice law. He said the evidence, in effect, was too good--like the matching gloves (as in the Simpson case, Guleserian was quick to note) or .45 ammunition found amid the weaponry in Zakarian’s home. Obvious plants, he said.

Not by police, though--by the Armenian mafia.

The defense was: Nefarious forces were enraged because Zakarian’s charter service underpriced competitors. He and relatives had been threatened and terrorized.

The defense lawyer even suggested a point man in this “conspiracy to destroy my client.”

The man seemed to be a friend, helping at the agency and sharing credit cards, but disappeared after the shooting. It was in his Mercedes that Zakarian swore he once touched the “shock absorber.”

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When the state trial began a year ago, even a defense expert agreed that Zakarian’s print was on the silencer. But his lawyer insisted this supported the story--for it was an “old” print probably captured in the car, he said, not a “fresh” one of someone who had just used the silencer to kill.

Sometimes the entire Glendale homicide squad sat in court watching, barely containing their anger that Guleserian, a former cop, could offer such arguments to get his client off. Old prints? “There is no way to date fingerprints,” retorted Norris, the prosecutor.

Guleserian was nonplused. His rivals might belittle the conspiracy theory, he said later, “but even if you don’t believe the defense, I’m allowed to create a doubt.”

He had more than ominous theories to do it. Four alibi witnesses swore Zakarian was at his business at the time Mikailian was shot.

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Zakarian’s sister, meanwhile, didn’t need an alibi. She had disappeared--becoming the first in a string of murder suspects mistakenly released by the Sheriff’s Department when a clerk on July 21, 1995, confused her with another inmate.

But her brother was there in court--and eagerly testified in his defense. He rambled on for an hour about the travel business alone--and why rivals were out to get him--before the judge prodded, “You haven’t even come to the circumstances of the crime.”

Zakarian then told the jury: He was expecting money soon to make good on his checks; Mikailian gave him the 80 coupons earlier that evening--perhaps to put him off; and, yes, he thought they were the real tickets; but no, he didn’t kill to get them.

On cross-examination, Norris mocked his fingerprint story and asked who else had reason to kill the woman. “How can I possibly tell you who did it,” Zakarian retorted, “if I didn’t see it?”

Later, jurors said they believed his shock absorber story and alibi witnesses. They deliberated eight hours and returned Dec. 22--the Friday of the holiday break.

“Absurd,” said a disbelieving Norris. “We’ve had these ‘Christmas verdicts’ before. They’re rushing to get out.”

So the case file was rushed out too--to the U.S. attorney’s office.

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In high-profile crimes, public pressure sometimes gets federal prosecutors to retry a failed local case, as in the Rodney King beating or, in New York, after a young black man was acquitted of killing Jewish scholar Yankel Rosenbaum in 1992, though caught with a bloody knife in his hand.

In the Zakarian case, Glendale police lobbied for a federal review. “There had to be an option where we in law enforcement can pursue our right to truth and justice,” Det. Perkins said.

It clearly had potential to become a federal case--because of the illegal firearms and the fact that the killing may have affected commerce.

But this is nothing like the routine practice of filing federal tax charges against someone also accused of state crimes, as with Heidi Fleiss, for instance.

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Under a policy dating to 1958, to prosecute someone for “the same acts or transactions” handled in state court, federal authorities must get a “Petite waiver” from the Justice Department finding that “a significant federal interest is left unvindicated.”

Richard E. Drooyan, chief of the criminal division of the U.S. attorney’s office here, recalls only two other such petitions in Los Angeles since January 1994. In one, authorities were not happy with the state sentence given a bondage parlor owner for hiring someone to kill a rival--so they nailed him for having a machine gun.

U.S. Atty. Nora Manella made the final decision to ask Washington’s approval on Zakarian. “We don’t take those decisions lightly,” she said. She had feared that state jurors downplayed the crime as an “ethnic thing,” one Armenian killing another.

A Justice Department spokesman said about 100 Petite waivers are granted nationally in most years. The total was even lower, 86, the last fiscal year.

Word was sent to Los Angeles on Jan. 30. Go ahead.

A stunned Zakarian was rearrested Feb. 26. A federal indictment included weapons possession counts and three stronger ones--for using robbery and “physical violence” to impede commerce.

Guleserian filed a motion to dismiss the “vindictive prosecution” as double jeopardy. The acquittal, he wrote, “caused much bitterness [among law enforcement]. It was this ‘sour grapes’ attitude that caused them to pressure [federal authorities] to open a case on Mr. Zakarian . . . which IGNORES EXCULPATORY EVIDENCE.”

But case law long has upheld the federal review procedure. So his motion failed--and the defense attorney knew he was in trouble.

“They get better,” he said of prosecutors, “the more chances they have.”

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The case was given to two young prosecutors in the Major Crimes Section, Warrington S. Parker and Christopher Tayback. If Tayback was a courtroom performer, there was a classic L.A. reason--he was the son of actor Vic Tayback, “Mel” in the TV series “Alice.”

The most basic advantage prosecutors have in a retrial is that they’ve seen the defense. They can’t be surprised by, say, an “old fingerprint” argument.

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Federal courts also are less receptive than state ones to freewheeling defenses. The prosecutors thus moved to limit Zakarian’s Armenian Mafia defense as speculation “based on no evidence.”

After U.S. District Judge Steven V. Wilson agreed, Zakarian’s lawyer complained, “I’m denied an opportunity to put on my defense! I can’t tell [jurors] who was behind this heinous professional killing.”

The prosecution also had time to investigate “the so-called alibi witnesses,” who placed Zakarian in his office. One was arrested for welfare fraud--and eventually refused to testify again.

But the defense also had something going for it now. The federal prosecutors would have the burden of telling jurors, with a straight face, “this case is about robbery.”

The irony, of course, was that the proof of robbery was far weaker than of murder--it was not inconceivable that the travel agent had given Zakarian worthless coupons to get rid of him. Guleserian’s thrust would be, “It’s patently stupid. . . . There is not one iota of evidence there was a robbery.”

Still, the proceedings were basically a rerun. Rather, two reruns.

For a first federal trial ended inconclusively in July. A jury convicted Zakarian of lesser firearms offenses--deciding the guns in the bag were his--but hung on the impeding-commerce counts.

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Zakarian’s lawyer quickly noted that the weapons charges probably would bring little more prison time than the 20 months he had served awaiting trial. The three undecided counts, in contrast, carried sentences of between 20 and 30 years.

So it would take a third trial to produce the crucial showdown. No one believed the Feds would keep trying after that.

“This is our third strike,” Glendale’s Det. Perkins said when the players assembled this month at the federal courthouse in Los Angeles. “Either it’s three strikes and we’re out, or the third time’s our lucky charm.”

Zakarian seemed bored at times, gazing at the ceiling while prosecutor Tayback told his story: “On Oct. 5, 1994, the defendant was . . . in dire financial straits . . . he had passengers stranded . . . he needed airline tickets . . . and the victim, Benita Mikailian, wouldn’t give them to him. . . .”

Zakarian got to recount his tale again, insisting that he could get money from Armenia for the asking. And suggesting again that he was set up with that “shock absorber.”

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Like the jury in Pasadena, this one deliberated little more than a day and came back Oct. 18, a Friday, that popular time for verdicts.

Except now, with three counts at issue, the clerk announced: Guilty. Guilty. Guilty.

Before the judge could say, “The jury has spoken,” Zakarian’s wife began sobbing. His attorney gripped his arm, vowing to appeal.

That afternoon, Zakarian’s younger brother, Archak, drove to San Pedro and climbed atop the Vincent Thomas Bridge, threatening to jump unless Atty. Gen. Janet Reno agreed to speak to him about the case. He sat there for hours, smoking cigarettes, proclaiming his brother’s innocence and snarling traffic before a SWAT team talked him down.

Such pleas probably won’t help Zakarian at his sentencing, set for Jan. 6. Even his lawyer expects him to get the maximum, tantamount to life in prison.

“This trial was supposed to be about robbery, but they tried him for murder--we all know it,” Guleserian said. “The jury convicted him of murder.

“Yeah, they’ll blast him,” he said. “They’ll blast him.”