Tsarnaev Brief 06-27-19
Tsarnaev Brief 06-27-19
Tsarnaev Brief 06-27-19
No. 16-6001
v.
DZHOKHAR A. TSARNAEV,
Defendant–Appellant.
_________________________
TABLE OF CONTENTS
TABLE OF CONTENTS ..................................................................................................... i
TABLE OF AUTHORITIES ............................................................................................ xii
INTRODUCTION................................................................................................................ 1
STATEMENT OF JURISDICTION ................................................................................. 2
ISSUES PRESENTED ......................................................................................................... 3
STATEMENT OF THE CASE .......................................................................................... 5
A. Procedural History .......................................................................................... 5
B. Relevant Facts .................................................................................................. 6
1. While a student at the University of Massachusetts
Dartmouth, Tsarnaev quietly adopted a radical Islamic
ideology. ................................................................................................ 7
2. Sometime in late 2012 or early 2013, Tsarnaev and his
brother hatched a plot to commit an act of terrorism. ................. 10
3. On April 15, 2013, Tsarnaev and his brother detonated two
bombs at the Boston Marathon, killing three people—
Krystle Campbell, Lingzi Lu, and Martin Richard—and
wounding hundreds. .......................................................................... 13
4. After the bombing, Tsarnaev returned to college and acted
as if nothing happened. ..................................................................... 25
5. After authorities released their pictures, Tsarnaev and his
brother killed Sean Collier, a Massachusetts Institute of
Technology policeman, in an attempt to steal his gun. ................. 27
6. Tsarnaev and his brother carjacked a sport utility vehicle
and kidnapped the owner at gunpoint. ........................................... 29
7. Police tracked Tsarnaev and his brother to a residential
street in Watertown, where they engaged in a gun battle
with police and detonated several improvised bombs. ................. 32
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D. The district court did not abuse its discretion or plainly err by failing to
conduct a more extensive inquiry. ............................................................. 132
III. The District Court Acted Within Its Discretion by Dismissing
Prospective Juror 355. ............................................................................................ 136
A. Background .................................................................................................. 136
B. Standard of review....................................................................................... 140
C. The district court reasonably concluded that Juror 355 was substantially
impaired by his views regarding the death penalty. ................................. 140
1. The deferential standard applies. ................................................... 143
2. The district court did not abuse its discretion. ............................. 148
3. Tsarnaev’s other assertions have no merit. ................................... 152
IV. The District Court Appropriately Exercised Its Discretion by Limiting
the Questions Asked on Voir Dire. ...................................................................... 154
A. Background .................................................................................................. 154
B. Standard of review....................................................................................... 159
C. The district court did not abuse its discretion under Morgan v. Illinois by
not allowing case-specific voir dire questions. ......................................... 159
1. Morgan does not require case-specific questions like those
Tsarnaev requested. ......................................................................... 160
2. Even if Morgan required jurors to be informed of certain
case-specific facts, the veniremembers in this case were so
informed. ........................................................................................... 162
3. The district court did not commit any legal error that
would constitute an abuse of discretion........................................ 165
a. Characterizing Tsarnaev’s questions as “stakeout”
questions was not legal error............................................... 166
b. Considering prospective jurors’ awareness of the key
facts was not legal error. ...................................................... 171
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4. The voir dire adequately ensured that the seated jurors were
qualified under Morgan. .................................................................... 173
D. The district court did not abuse its discretion by denying inquiry into the
specifics of what each prospective juror had read, heard, or seen about
the case before trial. .................................................................................... 177
1. Patriarca does not require district courts to ask about the
specific contents of media coverage. ............................................. 177
2. The voir dire was adequate to determine whether jurors
were impartial. .................................................................................. 183
3. Any error was harmless. .................................................................. 184
V. The District Court Appropriately Exercised Its Discretion by Excluding
Evidence That Tsarnaev’s Brother May Have Committed an Unrelated
Triple Murder and by Protecting an Interview Report From Disclosure. ....... 185
A. Background .................................................................................................. 186
B. Standard of review....................................................................................... 192
C. The district court did not abuse its discretion by excluding evidence of
the Waltham murders from the penalty phase......................................... 194
1. The evidence was not relevant. ...................................................... 195
a. Tamerlan’s violent history is not automatically
relevant merely because he was a co-conspirator. ............ 196
b. The evidence was not relevant to show fear or
intimidation. .......................................................................... 199
c. The evidence was not relevant to show Tsarnaev’s
lesser role. .............................................................................. 204
2. Even if the evidence was minimally relevant, its probative
value was outweighed by the risk of confusing the issues
and misleading the jury.................................................................... 209
D. Even if the district court abused its discretion by excluding the Waltham
murder evidence, the error was harmless. ................................................ 214
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TABLE OF AUTHORITIES
Cases
Amato v. United States, 450 F.3d 46 (1st Cir. 2006) .......................................................... 240
Amirault v. Fair, 968 F.2d 1404 (1st Cir. 1992) ................................................................ 120
Apprendi v. New Jersey, 530 U.S. 466 (2000) .............................................................. 342, 350
Arizona v. Fulminante, 499 U.S. 279 (1991) ...................................................... 214, 215, 240
Baker v. Corcoran, 220 F.3d 276 (4th Cir. 2000) ............................................................... 203
Brady v. Maryland, 373 U.S. 83 (1963) ........................................................ 48, 185, 222, 224
Bryson v. Ward, 187 F.3d 1193 (10th Cir. 1999) ............................................................... 217
Buttrum v. Black, 721 F. Supp. 1268 (N.D. Ga. 1989) ............................................. 207, 208
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Cauthern v. Colson, 736 F.3d 465 (6th Cir. 2013) .............................................................. 208
Coe v. Bell, 161 F.3d 320 (6th Cir. 1998) ........................................................................... 370
Commonwealth of Puerto Rico v. United States, 490 F.3d 50 (1st Cir. 2007) ...... 226, 227, 228
Cooper v. Dugger, 526 So. 2d 900 (Fla. 1988) ............................................................. 198, 207
Cooper v. Sec’y, Dep’t of Corr., 646 F.3d 1328 (11th Cir. 2011) ................................. 207, 208
Dixon v. Houk, 737 F.3d 1003 (6th Cir. 2013) ................................................................. 217
Duren v. Missouri, 439 U.S. 357 (1979) ..................................................... 386, 387, 388, 390
Dyer v. Calderon, 151 F.3d 970 (9th Cir. 1998) (en banc) ................................................ 121
Ellington v. State, 735 S.E.2d 736 (Ga. 2012) ............................................................ 161, 166
Ellsworth v. Warden, 333 F.3d 1 (1st Cir. 2003) ............................................... 223, 224, 225
Environmental Encapsulating Corp. v. City of New York, 855 F.2d 48 (2d Cir. 1988)........ 283
Estelle v. Smith, 451 U.S. 454, 464 (1981) .................................................................. 241, 250
Evans v. Thompson, 881 F.2d 117 (4th Cir. 1989) ............................................................. 370
Fields v. Brown, 503 F.3d 755 (9th Cir. 2007) (en banc) .................................................. 119
Fuller v. Dretke, 161 F. App’x 413 (5th Cir. 2006) ........................................................... 208
Garcia v. Ryan, No. cv-15-0025, 2017 WL 1550419 (D. Ariz. May 1, 2017) ................ 353
Gray v. Mississippi, 481 U.S. 648 (1987) ........................... 141, 142, 143, 144, 148, 152, 153
Haller v. Robbins, 409 F.2d 857 (1st Cir. 1969) ................................................................. 379
Ham v. South Carolina, 409 U.S. 524 (1973) .............................................................. 171, 172
Hodges v. Colson, 727 F.3d 517 (6th Cir. 2013) ......................................................... 160, 168
Hooks v. Ward, 184 F.3d 1206 (10th Cir. 1999) .............................................. 160, 200, 268
Hovey v. Ayers, 458 F.3d 892 (9th Cir. 2006) .................................................................... 339
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Hurst v. Florida, 136 S. Ct. 616 (2016) ............................... 53, 342, 346, 347, 348, 349, 351
In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93 (2d Cir.
2008) ............................................................................................................................... 378
In re Tsarnaev, 780 F.3d 14 (1st Cir. 2015) ................................................ 45, 59, 61, 62, 67,
................................................................................................ 78, 85-88, 95, 100, 101, 104
Irvin v. Dowd, 366 U.S. 717 (1961) ............................ 66, 69, 79, 84, 99, 101, 108, 181, 185
Jones v. United States, 527 U.S. 373 (1999) ....... 54, 216, 217, 266, 290, 292, 309, 321, 322,
................................................................................... 354, 356, 362- 64, 366-67, 369, 371
Kansas v. Cheever, 571 U.S. 87 (2013) ....................................... 241, 243, 244, 250, 251, 252
Lane v. Facebook, Inc., 696 F.3d 811 (9th Cir. 2012)......................................................... 130
Lockett v. Ohio, 438 U.S. 586 (1978) ......................................................... 194, 195, 196, 212
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Los Angeles County, Cal. v. Humphries, 562 U.S. 29 (2010) ............................................... 392
Lyons v. Lee, 316 F.3d 528 (4th Cir. 2003) ........................................................................ 370
Mak v. Blodgett, 970 F.2d 614 (9th Cir. 1992)........................................................... 207, 208
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984)..............118- 20, 122, 125
McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015) (en banc) .............................................. 217
Morales v. Mitchell, 507 F.3d 916 (6th Cir. 2007) ............................................. 145, 149, 151
Morgan v. Illinois, 504 U.S. 719 (1992) ...................... 46, 154, 159, 160, 167, 168, 169, 183
Mu’Min v. Virginia, 500 U.S. 415 (1991) .........47, 63, 98, 100, 108, 154, 159, 179, 180-84
Murphy v. Florida, 421 U.S. 794 (1975) ......................................................... 65, 99, 104, 107
Murray v. United States, 487 U.S. 533 (1988) .................................................... 307, 308, 309
Neder v. United States, 527 U.S. 1 (1999) ..................................................... 97, 214, 215, 240
Nelson v. Quarterman, 472 F.3d 287 (5th Cir. 2006) (en banc) ........................................ 217
Old Chief v. United States, 519 U.S. 172 (1997) .................................................................. 316
One Wisconsin Now v. Kremer, 354 F. Supp. 3d 940 (W.D. Wis. 2019) ........................... 110
Patriarca v. United States, 402 F.2d 314 (1st Cir. 1968).............................. 47, 177, 178, 179
Patton v. Yount, 467 U.S. 1025 (1984) ........................................ 85, 90, 95, 98, 99, 100, 179
Payne v. Tennessee, 501 U.S. 808 (1991) ............................ 272, 275, 279, 280, 288, 289, 342
Ramseur v. Beyer, 983 F.2d 1215 (3d Cir. 1992) (en banc) ............................................... 388
Rhoades v. Davis, 914 F.3d 357 (5th Cir. 2019) ................................................................. 217
Richmond v. Polk, 375 F.3d 309 (4th Cir. 2004) ............................................... 156, 160, 168
Rideau v. Louisiana, 373 U.S. 723 (1963) .................................................. 61, 64, 65, 89, 107
Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477 (1989) ............................... 393
Roper v. Simmons, 543 U.S. 551 (2005)...................... 56, 390, 391, 392, 393, 394, 396, 397
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Sampson v. United States, 724 F.3d 150 (1st Cir. 2013) ................... 119, 121, 122, 125, 134
Scott v. Mitchell, 209 F.3d 854 (6th Cir. 2000) ................................................................... 369
Skilling v. United States, 561 U.S. 358 (2010) ................................. 58, 63-67, 78, 81, 85, 88,
........................................................................... 90, 92, 95, 96, 98, 100, 105-08, 180, 183
Skipper v. South Carolina, 476 U.S. 1 (1986) ............................................. 195, 196, 215, 216
Spivey v. Head, 207 F.3d 1263 (11th Cir. 2000) ................................................................ 145
State Oil Co. v. Khan, 522 U.S. 3 (1997) ..................................................................... 393, 397
State v. Clark, 981 S.W.2d 143 (Mo. 1998) ............................................................... 161, 164
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State v. Jackson, 836 N.E.2d 1173 (Ohio 2005) ........................................................ 161, 164
Strong v. Roper, 737 F.3d 506 (8th Cir. 2013) .................................................................... 339
Troedel v. Wainwright, 667 F. Supp. 1456 (S.D. Fla. 1986) .............................. 198, 207, 208
Underwood v. Royal, 894 F.3d 1154 (10th Cir. 2018) ................................................ 351, 352
United States v. Abu Jihaad, 630 F.3d 102 (2d Cir. 2010) ................................................. 318
United States v. Al-Moayad, 545 F.3d 139 (2d Cir. 2008) ................................................. 321
United States v. Angiulo, 897 F.2d 1169 (1st Cir. 1990) ................................................ 88, 99
United States v. Aref, 285 F. App’x 784 (2d Cir. 2008) ..................................................... 378
United States v. Arias-Izuierdo, 449 F.3d 1168 (11th Cir. 2006) ....................................... 328
United States v. Barrett, 496 F.3d 1079 (10th Cir. 2007) ........................................... 283, 345
United States v. Bashorun, 225 F.3d 9 (1st Cir. 2000) ........................................................ 304
United States v. Bazemore, 839 F.3d 379 (5th Cir. 2016) ................................................... 352
United States v. Bin Laden, 126 F. Supp. 2d 290 (S.D.N.Y. 2001) ........................... 289, 290
United States v. Boylan, 898 F.2d 230 (1st Cir. 1990) ............................... 133, 360, 361, 362
United States v. Brandon, 17 F.3d 409 (1st Cir. 1994) ........................................................ 199
United States v. Bresil, 767 F.3d 124 (1st Cir. 2014) .......................................................... 375
United States v. Buford, 889 F.2d 1406 (5th Cir. 1989)...................................................... 193
United States v. Bulger, 816 F.3d 137 (1st Cir. 2016) ........................................ 194, 375, 378
United States v. Burgos Montes, 2012 WL 1190191 (D.P.R. Apr. 7, 2012) ....................... 161
United States v. Byers, 740 F.2d 1104 (D.C. Cir. 1984) ..................................................... 252
United States v. Campa, 529 F.3d 980 (11th Cir. 2008) ..................................................... 378
United States v. Caro, 597 F.3d 608 (4th Cir. 2010) .......................................................... 145
United States v. Cartagena-Carrasquillo, 70 F.3d 706 (1st Cir. 1995) ................................. 241
United States v. Casanova, 886 F.3d 55 (1st Cir. 2018) ...................................................... 159
United States v. Casellas-Toro, 807 F.3d 380 (1st Cir. 2015) .......... 63, 79, 88, 95, 96, 97, 99
United States v. Castro-Vazquez, 802 F.3d 28 (1st Cir. 2015) ........................................... 305
United States v. Chandler, 996 F.2d 1073 (11th Cir. 1993) ............................... 119, 370, 371
United States v. Cintolo, 818 F.2d 980 (1st Cir. 1987)........................................................ 226
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United States v. Claudio, 44 F.3d 10 (1st Cir. 1995) ................................................... 378, 379
United States v. Crooker, 688 F.3d 1 (1st Cir. 2012) .......................................................... 301
United States v. Cruz-Feliciano, 786 F.3d 78 (1st Cir. 2015) .............................................. 222
United States v. De Peri, 778 F.2d 963 (3d Cir. 1985)........................................................ 327
United States v. Del Toro-Barboza, 673 F.3d 1136 (9th Cir. 2012) .................................... 336
United States v. Delgado-Marrero, 744 F.3d 167 (1st Cir. 2014)......................................... 372
United States v. Duval, 496 F.3d 64 (1st Cir. 2007) ........................................................... 326
United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011) ................................ 313, 318, 330
United States v. Elshinawy, 2018 WL 1521876 (D. Md. Mar. 28, 2018) .......................... 318
United States v. Fell, 2017 WL 10809985 (D. Vt. February 15, 2017) ............................ 353
United States v. Fell, 372 F. Supp. 2d 766 (D. Vt. 2005) .................................................. 161
United States v. Fell, 531 F.3d 197 (2d Cir. 2008) ..................................................... 145, 151
United States v. Felton, 417 F.3d 97 (1st Cir. 2005) .......................................... 319, 330, 333
United States v. Fields, 483 F.3d 313 (5th Cir. 2007) ................................................. 344, 345
United States v. Fields, 516 F.3d 923 (10th Cir. 2008) ...................................... 145, 151, 344
United States v. French, 904 F.3d 111 (1st Cir. 2018) ................................................ 134, 135
United States v. Fumo, 655 F.3d 288 (3d Cir. 2011) .......................................................... 131
United States v. Gabrion, 719 F.3d 511 (6th Cir. 2013) (en banc) ................... 197, 344, 345
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United States v. Glantz, 810 F.2d 316 (1st Cir. 1987)........................................................ 326
United States v. Goguen, 723 F.2d 1012 (1st Cir. 1983) ..................................................... 254
United States v. Gomez, 770 F.2d 251 (1st Cir. 1985) ................................................ 306, 307
United States v. Gooch, 2006 WL 3780781 (D.D.C. Dec. 20, 2006) ................................ 264
United States v. Green, 389 F. Supp. 2d 29 (D. Mass. 2005)..................................... 389, 390
United States v. Hafen, 726 F.2d 21 (1st Cir. 1984) .......................................... 386, 387, 388
United States v. Innamorati, 996 F.2d 456 (1st Cir. 1993) .................................................. 375
United States v. Johnson, 366 F. Supp. 2d 822 (N.D. Iowa 2005).................... 160, 166, 167
United States v. Joost, 94 F.3d 640, 1996 WL 480215 (1st Cir. 1996) .............................. 387
United States v. Jordan, 316 F.3d 1215 (11th Cir. 2003) .................................................... 376
United States v. Kasenge, 660 F.3d 537 (1st Cir. 2011) ............................................... 326, 339
United States v. Kithcart, 218 F.3d 213 (3d Cir. 2000) ....................................................... 307
United States v. Kowal, 527 F.3d 741 (8th Cir. 2008) ........................................................ 286
United States v. LeCroy, 441 F.3d 914 (11th Cir. 2006) .................................................... 247
United States v. Leung, 40 F.3d 577 (2d Cir. 1994) ............................................................ 231
United States v. Lighty, 616 F.3d 321 (4th Cir. 2010) ........................................................ 217
United States v. López-Díaz, 794 F.3d 106 (1st Cir. 2015) ................................................ 194
United States v. Luce, 469 U.S. 38 (1984)................................................... 245, 246, 247, 248
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United States v. Lustyik, 833 F.3d 1263 (10th Cir. 2016).......................................... 375, 381
United States v. Lyons, 740 F.3d 702 (1st Cir. 2014) ......................................................... 301
United States v. Marcus, 560 U.S. 258 (2010) ............................................................. 106, 392
United States v. Masters, 622 F.2d 83 (4th Cir. 1980) ........................................................ 272
United States v. McGhee, 532 F.3d 733 (8th Cir. 2008) ............................................. 328, 329
United States v. McVeigh, 918 F. Supp. 1467 (W.D. Okla. 1996) ...................................... 86
United States v. McVeigh, 944 F. Supp. 1478 (D. Colo. 1996) ......................................... 287
United States v. Medina, 761 F.2d 12 (1st Cir. 1985) ................................................. 179, 180
United States v. Mehanna, 735 F.3d 32 (1st Cir. 2013) ............ 316, 317, 320, 321, 330, 378
United States v. Mejia, 448 F.3d 436 (D.C. Cir. 2006)....................................................... 378
United States v. Mikhel, 889 F.3d 1003 (9th Cir. 2018).................................... 192, 194, 332
United States v. Minsky, 963 F.2d 870 (6th Cir. 1992) ...................................................... 379
United States v. Mitchell, 502 F.3d 931 (9th Cir. 2007) ..................................... 212, 344, 345
United States v. Mitchell, 690 F.3d 137 (3d Cir. 2012) ....................................................... 119
United States v. Monell, 801 F.3d 34 (1st Cir. 2015) .......................................................... 247
United States v. Montas, 41 F.3d 775 (1st Cir. 1994) ......................................................... 336
United States v. Moore, 149 F.3d 773 (8th Cir. 1998) ........................................................ 145
United States v. Moreno Morales, 815 F.2d 725 (1st Cir. 1987) ............................................ 97
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United States v. Moussaoui, 591 F.3d 263 (4th Cir. 2010) .................................................. 381
United States v. Nelson-Rodriguez, 319 F.3d 12 (1st Cir. 2003) .................................. 228, 326
United States v. O’Reilly, 2010 WL 653188 (E.D. Mich. Feb. 19, 2010) ......................... 253
United States v. Oquendo-Rivas, 750 F.3d 12 (1st Cir. 2014) ..................................... 301, 302
United States v. Orange, 447 F.3d 792 (10th Cir. 2006) ..................................................... 388
United States v. Orlando-Figueroa, 229 F.3d 33 (1st Cir. 2000) .......................................... 180
United States v. Paniagua-Ramos, 251 F.3d 242 (1st Cir. 2001) ................................. 133, 135
United States v. Peña-Santo, 809 F.3d 686 (1st Cir. 2015) ................................................. 336
United States v. Pringle, 751 F.2d 419 (1st Cir. 1984) ................................................ 377, 378
United States v. Prochilo, 629 F.3d 264 (1st Cir. 2011)....................................................... 230
United States v. Purkey, 428 F.3d 738 (8th Cir. 2005) ............................................... 212, 345
United States v. Quiles-Olivo, 684 F.3d 177 (1st Cir. 2012)....................... 63, 64, 94, 97, 103
United States v. Ranney, 719 F.2d 1183 (1st Cir. 1983) ..................................................... 223
United States v. Reifsteck, 535 F.2d 1030 (8th Cir. 1976) .................................................. 244
United States v. Richards, 456 F.3d 260 (1st Cir. 2006) ..................................................... 393
United States v. Rivera-Hernández, 497 F.3d 71 (1st Cir. 2007) ......................................... 240
United States v. Rivera-Santiago, 872 F.2d 1073 (1st Cir. 1989) ........................................ 268
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United States v. Rodriguez, 581 F.3d 775 (8th Cir. 2009) ........................................... 145, 151
United States v. Rodriguez-Cardona, 924 F.2d 1148 (1st Cir. 1991) ..................................... 63
United States v. Rodríguez-De Jesús, 202 F.3d 482 (1st Cir. 2000) ..................................... 327
United States v. Rodriguez-Estrada, 877 F.2d 153 (1st Cir. 1989) ...................................... 327
United States v. Roldan-Zapata, 916 F.2d 795 (2d Cir. 1990) ............................................ 320
United States v. Rosario-Peralta, 175 F.3d 48 (1st Cir. 1999) ..................................... 193, 233
United States v. Rose, 802 F.3d 114 (1st Cir. 2015)............................................................ 307
United States v. Royal, 174 F.3d 1 (1st Cir. 1999) ............................ 385, 386, 387, 388, 389
United States v. Runyon, 707 F.3d 475 (4th Cir. 2013) ...................................................... 344
United States v. Salameh, 1993 WL 364486 (S.D.N.Y Sep. 15, 1993) ............................... 79
United States v. Sampson, 335 F. Supp. 2d 166 (D. Mass. 2004) .............................. 235, 264
United States v. Sampson, 486 F.3d 13 (1st Cir. 2007) ...... 53, 140, 192, 210, 213, 265, 271,
.........................................................................278, 282, 337, 342, 344-46, 349, 360, 391
United States v. Sanabria, 645 F.3d 505 (1st Cir. 2011) ..................................................... 372
United States v. Sebaggala, 256 F.3d 66 (1st Cir. 2001) ...................................................... 241
United States v. Sedaghaty, 728 F.3d 885 (9th Cir. 2013) ................................................... 381
United States v. Sepulveda, 15 F.3d 1161 (1st Cir. 1993) .................................................... 372
United States v. Shinderman, 515 F.3d 5 (1st Cir. 2008) ..................................................... 320
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United States v. Smith, 727 F.2d 214 (2d Cir. 1984) .......................................................... 320
United States v. Stewart, 590 F.3d 93 (2d Cir. 2009) .......................................................... 226
United States v. Stokes, 124 F.3d 39 (1st Cir. 1997) ........................................................... 372
United States v. Taylor, 320 F. Supp. 2d 790 (N.D. Ind. 2004) ........................................ 253
United States v. Taylor, 814 F.3d 340 (6th Cir. 2016) ....................................... 213, 339, 370
United States v. Troya, 733 F.3d 1125 (11th Cir. 2013) ............................................. 217, 252
United States v. Vanvliet, 542 F.3d 259 (1st Cir. 2008) ..................................................... 328
United States v. Vázquez-Larrauri, 778 F.3d 276 (1st Cir. 2015)..................... 326, 331, 339
United States v. Vest, 842 F.2d 1319 (1st Cir. 1988) ......................................................... 180
United States v. Walker-Couvertier, 860 F.3d 1 (1st Cir. 2017) .................................. 301, 305
United States v. Wall, 130 F.3d 739 (6th Cir. 1997) .......................................................... 328
United States v. Wheeler, 540 F.3d 683 (7th Cir. 2008) ...................................................... 362
United States v. Williams, 731 F. Supp. 2d 1012 (D. Haw. 2010) .................................... 253
United States v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991) .................................................... 378
United States v. Zackson, 12 F.3d 1178 (2d Cir. 1993) ...................................................... 327
United States v. Zehrbach, 47 F.3d 1252 (3d Cir. 1995) ..................................................... 331
United States v. Zimny, 846 F.3d 458 (1st Cir. 2017)................................................. 118, 133
Uttecht v. Brown, 551 U.S. 1 (2007) ........................................... 141, 143, 144, 147, 149, 152
xxvi
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Wainwright v. Witt, 469 U.S. 412 (1985) ........................................................... 140, 141, 152
Waters v. Thomas, 46 F.3d 1506 (11th Cir. 1995) (en banc) ............................................ 365
Williams v. Chrans, 945 F.2d 926 (7th Cir. 1991) ............................................................. 277
Williams v. Norris, 612 F.3d 941 (8th Cir. 2010) .............................................................. 217
Witherspoon v. Illinois, 391 U.S. 510 (1968) ....................................................... 140, 142, 153
Ybarra v. Filson, 869 F.3d 1016 (9th Cir. 2017) ................................................................ 352
Zettlemoyer v. Fulcomer, 923 F.2d 284 (3d Cir. 1991) ......................................................... 370
Zicarelli v. N.J. State Comm’n of Investigation, 406 U.S. 472 (1972) .................................... 243
18 U.S.C. § 3593 ............................................................43, 44, 50, 169, 195, 209, 210, 213,
...................................................................... 269, 271, 280-87, 290, 332, 343-44, 358-59
Fed. R. Crim. P. 12.2 ........................................................ 234, 235, 236, 237, 241, 253, 254
xxviii
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Other Authorities
ABA Standards Relating to Fair Trial and Free Press, § 3.4 (Tentative Draft,
Dec. 1966)...................................................................................................................... 178
Brian Eschels, Data & the Death Penalty: Exploring the Question of National
Consensus Against Executing Emerging Adults in Conversation with Andrew
Michaels’s A Decent Proposal: Exempting Eighteen- to Twenty-Year-Olds From the
xxix
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Death Penalty, 40 N.Y.U. Rev. L. & Soc. Change Harbinger 147 (2016),
available at https://socialchangenyu.com/wp-
content/uploads/2016/06/eschels-compliment-piece_clean-copy_6-14-
16.pdf............................................................................................................. 395, 396, 397
U.S. Census Bureau, New Census Bureau Population Estimates Show Dallas-
Fort-Worth-Arlington Has Largest Growth in the United States,
https://www.census.gov/newsroom/press-releases/2018/popest-metro-
county.html#popest-tab6 (March 22, 2018) ............................................................... 84
U.S. Dep’t of Justice, Guidelines for Victim and Witness Assistance, 48 Fed.
Reg. 33,774-02, 33,775 ................................................................................................. 283
United States District Court for the District of Massachusetts Jury Plan for
Random Selection of Jurors (Mar. 3, 2009), available at
http://www.mad.uscourts.gov/caseinfo/pdf/general/030309%20Gen%2
0Ord%2009-2,%20with%20Jury%20Plan.pdf .................................................. 384, 389
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INTRODUCTION
In April 2013, Dzhokhar Tsarnaev and his brother set off two bombs near the
finish line of the Boston Marathon, killing three spectators and injuring hundreds.
Three days later, they shot a police officer who was sitting in his car and then engaged
in a shootout during which Tsarnaev threw bombs at police officers and ran over his
brother to escape. Police finally located Tsarnaev hiding in a boat where he had
written a jihadist justification for his actions. After the district court and this Court
denied his requests to transfer his trial out of the District of Massachusetts, a jury
weapons of mass destruction to kill his victims. The jury subsequently recommended
that Tsarnaev receive the death penalty on six counts, and the district court imposed
that sentence. The court also sentenced Tsarnaev to multiple concurrent and
Tsarnaev received a fair trial in Boston, and the district court did not abuse its
discretion by refusing to move the trial elsewhere. The jury was selected after a
careful and searching voir dire, and the jurors who tried and sentenced Tsarnaev were
unbiased. The district court’s evidentiary rulings were well within its discretion, the
court’s jury instructions fully complied with Supreme Court and circuit law, and the
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and the capital sentencing process—which have been rejected by many other courts—
STATEMENT OF JURISDICTION
Defendant–Appellant Tsarnaev appeals from a final judgment of conviction in
a criminal case. The district court (O’Toole, J.) had jurisdiction under 18 U.S.C.
§ 3231 and entered judgment on June 25, 2015. Add.99-106.1 The district court
denied Tsarnaev’s motion for a new trial on January 15, 2016, Add.483-505, and
Tsarnaev filed a timely notice of appeal on January 29, 2016, 1.App.152-53. See Fed.
R. App. P. 4(b)(3)(A)(ii). This Court has jurisdiction pursuant to 28 U.S.C. § 1291 and
18 U.S.C. § 3595(a).
1
This brief uses the following citation format:
Video and audio exhibits cited in this brief are available on a disc enclosed with the
government’s supplemental appendix. All the trial exhibits, including those not cited
in the parties’ briefs, are available to the Court on flash drives provided by the
government.
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ISSUES PRESENTED
I. Whether the district court abused its discretion by denying Tsarnaev’s motions
III. Whether the district court abused its discretion when it dismissed Juror 355
IV. Whether the district court abused its discretion by not allowing Tsarnaev to ask
prospective jurors (a) whether they could consider a life sentence under the
particular facts of this case, and (b) what specific media coverage of this case
V. Whether the district court abused its discretion by (a) excluding from the
penalty phase evidence that Tsarnaev’s older brother may have been involved
VI.
VII. Whether the admission of testimony about the bombing’s effect on surviving
VIII. Whether Tsarnaev is entitled to a hearing on his claim that video of him buying
milk at a Whole Foods was the fruit of his allegedly coerced confession.
IX. Whether (a) the district court reversibly erred by allowing expert testimony that
mentioned the Islamic State (ISIS) and whether the government committed
juxtaposed the audio of an Islamic nasheed with pictures of Tsarnaev and the
bombing, and (c) using a poster display during the penalty-phase opening of
the four homicide victims beside a poster of Tsarnaev raising his middle finger
X. Whether the district court reversibly erred by not instructing the jury that, to
recommend a death sentence, the jury must find that the aggravating factors
XI. Whether the district court reversibly erred by failing to inform the jury that, if
the jury did not unanimously recommend a death sentence, Tsarnaev would be
XIII. Whether the use of ex parte proceedings in which the government sought in
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XIV. Whether this Court should overrule its precedent applying an absolute-disparity
analysis to claims that the grand and petit jury wheels in the District of
XV. Whether the district court plainly erred by not holding that the death penalty is
unconstitutional for a defendant who was under 21 years old at the time of his
offense.
After 21 days of jury selection and a 17-day guilt phase trial, a jury convicted
death, in violation of 18 U.S.C. § 2332a(a)(2) (Count 1); two counts of using a weapon
2 and 4); conspiracy to bomb a place of public use resulting in death, in violation of
18 U.S.C. § 2332f(a)(1), (a)(2), and (c) (Count 6); two counts of bombing a place of
public use resulting in death, in violation of 18 U.S.C. § 2332f(a)(1) and (c) (Counts 7
and 9); conspiracy to maliciously destroy property resulting in personal injury and
death, in violation of 18 U.S.C. § 844(i) and (n) (Count 11); two counts of malicious
U.S.C. § 844(i) (Counts 12 and 14); nine counts of possessing and using a firearm
U.S.C. § 924(c) and (j) (Counts 3, 5, 8, 10, 13, 15, 16, 17 and 18); carjacking resulting
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in serious bodily injury, in violation of 18 U.S.C. § 2119(2) (Count 19); six counts of
violation of 18 U.S.C. § 924(c) (Counts 20, 22, 24, 26, 28, and 30); interference with
commerce by threats and violence, in violation of 18 U.S.C. § 1951 (Count 21); and
After a 12-day penalty phase trial, the jury recommended that Tsarnaev be
sentenced to death on Counts 4, 5, 9, 10, 14, and 15, and the district court imposed
death sentences on those counts. Add.95-96, 103. The court also sentenced Tsarnaev
terms of life imprisonment on Counts 11, 23, 25, 27, and 29, to be served
Counts 3, 8, 13, 16, 17, 18, 24, 26, 28, and 30; concurrent terms of 25 years on Count
consecutive terms of seven years on Count 20 and 25 years on Count 22. Add.104.
B. Relevant Facts
On April 15, 2013, Tsarnaev and his brother Tamerlan set off two bombs near
the Boston Marathon’s finish line, killing three spectators and injuring hundreds.
Three days later, after police released pictures of the suspects (whose identity was not
yet known), they killed a police officer, carjacked an SUV, and engaged in a lengthy
shoot-out with police in a Boston suburb during which Tsarnaev threw bombs at
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police officers. Tsarnaev escaped the scene after running over his brother with the
stolen SUV. After several communities were on lockdown for most of a day, a
homeowner found Tsarnaev hiding in a winterized boat. While in the boat, Tsarnaev
wrote a manifesto defending his actions and characterizing his brother as a martyr.
Dzhokhar Tsarnaev was born in July 1993 in Kyrgyzstan, and came to the
United States with his parents at age eight. 14.App.6198; 17.App.7855; Gov’t Exh.
1210 (physical exhibit (passport)). He attended public and charter schools in the
Cambridge, Massachusetts area, where he got good grades and related well to his
8290, 8306-07.
in his classes, failing many of them, and lost his academic scholarship. 14.App.6140-
6142; 1.Supp.App.56-58 (Gov’t Exhs. 1180C and 1180E) (transcripts and academic
progress appeal). He spent his time hanging out with friends, watching TV, playing
64, 7980, 7983-84, 7990; 18.App.8098-99, 8105. His friends found him “fun,” “laid
But there was another side of Tsarnaev that his friends did not see. While
projecting an image of a laid-back partier, he was reading and watching radical Islamic
propaganda. For example, in January 2012, he obtained a PDF copy of the first
with an al-Qaeda leader who encouraged his “Muslim brothers in the West . . . to
entitled “Make a bomb in the kitchen of your Mom,” which said, “If you are sincere
in your intentions to serve the religion of Allāh, then all [t]hat you have to do is enter
your kitchen and make an explosive device that would damage the enemy if you put
your trust in Allāh and then use this explosive device properly.” 2.Supp.App.210
(Gov’t Exh. 1142-091 at 33) (non-English characters omitted). The article gave
detailed instructions on how to make bombs out of metal pipes and pressure cookers.
At the end of the Inspire magazine was a message from Anwar al-Awlaki, an
13.App.5907. He told “Muslims in the West” that they had “two choices: either hijra 2
2
“Hijra” in this context means migration to a place where there is a Muslim
majority. 13.App.5924.
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or jihād. You either leave or you fight. You leave and live among Muslims or you
stay behind and fight with your hand, your wealth and your word.” 1.Supp.App.45
On the day of the 2012 presidential election, Tsarnaev texted a friend that he
wanted “the lesser of two evils to win[,] which would be Obama[,] but either way
they’re shaytan [Satan] ass niggas, puppets of the system, killing Muslims is the only
promise they will fulfill.” 1.Supp.App.68 (Gov’t Exh. 1385); see 14.App.6341, 6337
his future plans, he said, “I wanna bring justice for my people.” 1.Supp.App.72
At the end of January 2013, Tsarnaev texted a friend that he was “tryina finish
school” but “[c]ome [M]ay I’m out.” 1.Supp.App.74 (Gov’t Exh. 1395); 14.App.6344.
His friend asked if he was planning to get married, to which Tsarnaev responded,
“[W]e’ll see. . . . I mean there’s 1 other option bro. Highest level of Jannah.”3
1.Supp.App.74. His friend replied, “Jihad? I really am down for that Jihad life
though. I’ve been thinking about that lately.” 1.Supp.App.74. Tsarnaev replied,
“Don’t be hot over the phone.” 1.Supp.App.74. When his friend said that thinking
about jihad was “affecting [his] future plans,” Tsarnaev said, “I’m with you on this
3
“Jannah” means “Paradise.” 13.App.5934.
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first tweet, he said, “[D]ear Muslim brothers and sisters follow me for some Islamic
insight.” 1.Supp.App.62 (Gov’t Exh. 1266). Over the next few days, he tweeted
seven more times. 1.Supp.App.61. He said, for example, “I want the highest levels of
Jannah, I want to be able to see Allah every single day for that is the best of
as an introduction to Islam; although they do not call for jihad, they often serve as a
Tsarnaev’s final tweet on this account—one month before the Boston Marathon
bombing—said, “It’s our responsibility my brothers & sisters to ask Allah to ease the
Tsarnaev’s parents left the United States and moved to Dagestan in 2012.
4
“Firdaus” refers to the highest level of paradise in the teaching of Islam.
11.App.4541; 13.App.5937. “Ghuraba” means “stranger.” 10.App.4500.
5
“Kufar” or “kafir” means “infidel” or “non-believer.” 12.App.5300;
13.App.5934.
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January and July 2012, hoping to participate in jihad, but Tamerlan found that no
Dartmouth in the fall of 2012, and he was naturalized as a United States citizen on
three of his four classes that semester. 1.Supp.App.58 (Gov’t Exh. 1180E). In
December, he spent part of his holiday break with Tamerlan in Cambridge. See
Sometime in January 2013, Tsarnaev asked to borrow his friend Stephen Silva’s
Ruger P95 pistol, which had an obliterated serial number. 12.App.5259, 5264, 5267.
See 1.Supp.App.31 (Gov’t Exh. 930) (photo of gun). Tsarnaev told Silva he wanted to
use the gun to “rip [rob] some kids.” 12.App.5264. Silva loaned him the gun, but
never got it back. 12.App.5273. When Silva asked about the gun over the next few
months, Tsarnaev “just kept coming up with excuses” and “beating around the bush.”
12.App.5273-74.
In late January, three days after Tsarnaev had texted his friend about jihad and
two hours after the brothers spoke on the phone, Tamerlan used cash to buy two
52, 100-101 (Gov’t Exhs. 1152-06, 1159; Def. Exhs. 3002 at 34 (Item 846), 3127). In
See 1.Supp.App.50, 54-55, 102 (Gov’t Exh. 1152-07, 1161; Def. Exh. 3128). And
between February and early April 2013, Tamerlan ordered several transmitters and
One or both of the brothers then constructed two pressure cooker bombs.
14.App.6423, 6439, 6443. They lined the bombs on the inside with BBs embedded in
sealant (the second bomb also had nails) and filled them with powder from fireworks.
14.App.6301-02, 6308, 6310-11, 6443, 6481. The bombs could be detonated remotely
14.App.6430-34 (bomb #1), 39-42 (bomb #2). The bombs closely followed the
pattern in Inspire magazine, which showed how to make a bomb by gluing “shrapnel
to the inside of the pressurized cooker” and suggested using nails or “spherical
The magazine showed how to use a Christmas tree light bulb to detonate the bomb,
On March 20, 2013, during Tsarnaev’s spring break, he and Tamerlan went to a
rented two 9mm handguns and purchased four boxes of 9mm ammunition.
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14.App.6064-65. See Gov’t Exh. 1165 (video of Tsarnaev and Tamerlan leaving
range). Tsarnaev and Tamerlan were at the range for about an hour. 14.App.6065.
That evening, Tsarnaev tweeted, “Evil triumphs when good men do nothing.”
The Boston Marathon is held every year on Patriots’ Day, a school holiday in
was “beautiful,” “sunny but a little chilly.” 10.App.4047, 4095, 4139. A “party
atmosphere” pervaded the finish line on Boylston Street in downtown Boston, and
gathered to cheer and to take pictures of family and friends running in the marathon.
Krystle Campbell went to the marathon with her co-worker and “fast friend[ ]”
Karen Rand, whose boyfriend was running.6 10.App.4092-94. The two friends “were
being kind of silly and touristy” and had a passerby take their picture. 10.App.4095-
By the time of trial, Rand had married and become Karen McWatters.
6
10.App.4091-92.
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96. See 1.Supp.App.7 (Gov’t Exh. 15) (photo of Campbell and Rand). They found a
spot near the finish line as they waited for Rand’s boyfriend to finish. 10.App.4095.
Bill and Denise Richard “made it a ritual” to attend the marathon every year
with their children Henry, Martin, and Jane. 10.App.4266. They went to their usual
place on the corner of Hereford and Newbury Streets, where Martin (eight years old)
and Jane (six), who were “really into watching the runners,” could stand on the metal
fence lining the course. 10.App.4268-71, 4292, 4295. After a stop for ice cream at
Ben and Jerry’s, they decided to “try and find a place closer to the finish line.”
10.App.4272-73. They found a spot along Boylston Street in front of the Forum
restaurant, where Martin and Jane were again able to stand on the railing.
10.App.4273-74; 1.Supp.App.14 (Gov’t Exh. 29) (photo of Martin, Jane, and other
Lingzi Lu, a Boston University student from China, was near the finish line
with two Chinese friends, including Danling Zhou. 10.App.4340, 4343, 4345-47. The
students knew the Boston Marathon was a “big thing,” and they wanted to “see how
people celebrate [the] marathon.” 10.App.4345. They shopped, ate some lunch, and
***
Around 2:37 p.m., as the race clock neared the four-hour mark, Tsarnaev and
2:15 (combined videos). Tsarnaev wore a hooded sweatshirt, a black coat, and a
hooded sweatshirt, a black coat, a black hat, and sunglasses. Gov’t Exh. 22 at 1:13.
Each carried a backpack containing a pressure cooker bomb. Gov’t Exh. 22 at 00:20-
00:45; 14.App.6423.
Tsarnaev and Tamerlan split up just before reaching the Forum restaurant.
10.App.4436, 4438. Tamerlan walked to a spot near the finish line in front of
1.Supp.App.3 (Gov’t Exh. 6). As he was pushing through the crowd, Tamerlan
bumped into Jeffrey Bauman, who was there to watch his girlfriend run.
He “wasn’t . . . watching the race,” and “it didn’t look like he was having fun like
1473) (photo of Tamerlan next to Bauman). Bauman later looked behind him and
10.App.4140-41.
After splitting up with Tamerlan, Tsarnaev waited a few minutes and then
in front of the Forum restaurant. Gov’t Exh. 22 at 3:29-3:50. He slipped off his
backpack and placed it on the ground near a tree a few feet from where Martin and
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Jane Richard and other children stood along the metal railing lining the race course.
Exh. 29) (photo showing Tsarnaev and his backpack behind Martin and Jane).
Tsarnaev watched the runners for several minutes, and then made a 19-second
About 20 seconds after Tsarnaev hung up, an explosion rocked the crowd in
The spectators in front of the Forum restaurant all turned and looked toward the
finish line. Gov’t Exh. 22 at 7:43. Tsarnaev glanced that way briefly, then began
quickly edging away from the finish line, leaving his backpack on the ground. Gov’t
Exh. 22 at 7:43-7:54. About 12 seconds after the first blast, Tsarnaev gave one last
look back toward his backpack. Gov’t Exh. 22 at 7:54; 10.App.4251. Then it
exploded. Gov’t Exh. 22 at 7:54-7:55 (video from Forum restaurant); Gov’t Exh. 5 at
***
When the first bomb exploded, instantly “[i]t was chaos. It was confusion,
screaming, yelling, smoke.” 10.App.4099. See Gov’t Exh. 5 (video of both bomb
blasts from a distance). There was “blood everywhere,” 10.App.4127, and the ground
was covered with “chunks of metal,” BBs, nails, “shards . . . of glass,” and “body
after the blast). The air smelled of “smoke . . . , blood, [and] flesh. Just acrid,
disgusting.” 10.App.4051. The wounded screamed in pain and called out things like,
“Help us or we’re going to die,” and “Stay with me, stay with me.” 10.App.4037,
4102, 4313; 16.App.7133, 7182. See Gov’t Exhs. 11b, 11c, 14 (close-up post-blast
videos). A five-year-old whose leg was cut to the bone called out, “‘Mommy,’
‘Mommy,’ ‘Mommy,’ over and over and over again.” 10.App.4065, 4067, 4070.
Sirens and fire alarms added to the chaos. 10.App.4037-38, 4234; Gov’t Exh. 14
(video). Some uninjured bystanders “were running away” while others “jumped in”
and “tried to help.” 10.App.4127. See 10.App.4143-44. Police officers and volunteers
called out directions and used belts and clothing to apply tourniquets to injured limbs.
The scene of the second blast was similarly “brutal.” 10.App.4261. “[I]t . . .
looked like people had just been dropped like puzzle pieces onto the sidewalk . . . .”
10.App.4385. See 1.Supp.App.11, 16-17 (Gov’t Exhs. 24, 32, 34) (photos after the
blast); Gov’t Exhs. 36, 41 (videos after the blast). Blood and “body parts” were
“littered on the sidewalk,” and there was an “overwhelming” smell of “burning tissue
and blood.” 10.App.4384-85, 4389. A doctor helping the injured noticed “a severed
Gov’t Exh. 1634C (post-blast video with sound added). A three-year-old with a head
injury yelled, “Mommy, daddy, mommy, daddy.” 16.App.7425, 7430. Police officers,
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medical professionals, and other volunteers “jump[ed] in” to help the wounded by
***
After the first bomb exploded, Karen Rand found herself lying on the ground.
10.App.4100. She knew something was wrong with her leg, but she dragged herself
over to Krystle Campbell, burning her hands on hot pieces of metal in the process.
10.App.4100-01. Rand and Campbell put their faces together and held hands.
showing Campbell and Rand lying together after the blast); 2.Supp.App.201 (Gov’t
Exh. 655) (autopsy photo). Campbell “very slowly” told Rand that her “legs hurt.”
10.App.4101. “And shortly after that her hand went limp in [Rand’s], and she never
spoke again after that.” 10.App.4101. Campbell bled to death on the sidewalk.
14.App.6535.
Jeffrey Bauman had just turned back to the race after noticing the abandoned
backpack when the first bomb exploded. 10.App.4141. He “saw a flash,” heard
“three pops,” and “was on the ground.” 10.App.4141. His “ears were ringing and
everything was muffled.” 10.App.4141-42. When he looked at his legs, “it was just
. . . pure carnage.” 10.App.4142. His right knee was gone, and he “didn’t have any
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leg beyond” his left fibula, which was exposed. 10.App.4144-45. See 1.Supp.App.10
(Gov’t Exh. 20) (photo of Bauman after the blast). There was “a little stream of
blood shooting out from underneath” that leg, so Bauman “grabbed [his] left leg and
squeezed it and . . . didn’t let go until [he] was . . . into the ambulance.” 10.App.4144.
Lingzi Lu and Danling Zhou were in front of the Forum restaurant when the
second bomb exploded. 10.App.4350-52. Zhou found herself lying on a fence with
“smoke everywhere” and “blood . . . all over the ground.” 10.App.4354. A man in
front of her turned toward her and yelled, and she saw his legs were “not there
anymore.” 10.App.4355. Zhou herself had been cut across the stomach and had to
hold her insides in. 10.App.4262, 4356-58. She saw that Lu still had her arms and
A doctor who happened to be watching the marathon saw that Lu’s right leg
“had a very deep, long laceration.” 10.App.4385. “[B]asically her leg had been filleted
open down to the bone.” 10.App.4385. See 2.Supp.App.202-04 (Gov’t Exhs. 662,
667, 668) (autopsy photos). The doctor tried to tourniquet Lu’s leg, but “a lot of her
blood was now on the sidewalk” and “there really wasn’t much of a pulse left.”
10.App.4386. When Lu started agonal breathing, the doctor “realized she was dying,”
but asked one of the people at Lu’s head to start CPR “realizing that that was not
As a firefighter pumped air into Lu’s mouth with a mask, a Boston Police
officer did chest compressions. 10.App.4221-22. The officer had noticed Lu’s name
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on her school identification card, so she kept saying, “Lingzi, stay with us. You can
do this. You’re going to be okay. Stay strong.” 10.App.4222. The officer and others
10.App.4223. But a paramedic told them to “take her off because she was gone and
he needed to keep the ambulance available for people who they could save.”
10.App.4223.
***
The second explosion blew Bill Richard into the street. 10.App.4279. He got
back up and, after getting his bearings, returned to his wife and children on the
sidewalk. 10.App.4279, 4281; 1.Supp.App.11 (Gov’t Exh. 24) (photo); Gov’t Exh. 23
at 06:52-7:10 (video). Denise was leaning over her little boy Martin, pleading with
him to stay alive. 10.App.4283; 16.App.7448. Bill found their other son Henry, who
helped him find six-year-old Jane. 10.App.4281. Jane tried to get up, but she fell
because her left leg had been blown off. 10.App.4284-85, 4371-73; Gov’t Exhs. 23 at
07:01-07:07 (video of Jane falling after trying to stand), 39, 40 (photos of Jane after
the blast). Bill picked Jane up and took her and Henry into the middle of Boylston
Street, where an off-duty firefighter ran up and used a belt to form a tourniquet
around Jane’s leg. 10.App.4284-85, 4371-73; Gov’t Exh. 41 (video from across the
street); Gov’t Exh. 23 at 07:43-08:07 (video from Forum restaurant). Bill briefly
returned to Denise and Martin, but when he saw Martin’s condition he “knew that he
Martin did not make it. The bomb had sent nails, pellets, and a piece of the
pressure cooker tearing through his body. 15.App.6622-26, 6637. See 1.Supp.App.20-
23 (Gov’t Exhs. 648, 649, 650, 651) (photos of debris from Martin’s body);
2.Supp.App.109-200 (Gov’t Exhs. 638, 639) (autopsy photos). His abdomen had a
two- by four-inch laceration; his spinal cord, liver, pancreas, large intestine, and
abdominal aorta were all cut; two of his ribs were broken; and his left forearm was
almost completely severed, with only “soft tissue approximately an inch wide . . .
connecting the two pieces of the forearm together.” 15.App.6619-21, 6623. See
2.Supp.App.200 (Gov’t Exh. 639) (autopsy photo). Martin moved his arms a few
times in the minute or so after the blast, 16.App.7448-50; Gov’t Exh. 1634d at 00:22-
01:15 (video highlighting Martin after the blast), but he bled to death on the sidewalk.
10.App.4389; 16.App.7403.
***
In addition to killing Krystle Campbell, Lingzi Lu, and Martin Richard, the
bombs caused devastating injuries to dozens of others. For example, the first bomb
blew newlyweds Jessica Kensky and Patrick Downes through the air “like [they were]
on a rocket.” 10.App.4313. Downes’s “foot and part of his leg w[ere] completely
to use her purse straps as a tourniquet, a bystander told her, “Ma’am, you’re on fire,”
and pushed her down to the ground to put out the flames, which extended from her
“shoulder blades all the way down [her] pants.” 10.App.4314, 4323. Kensky’s own
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legs were severely damaged, and doctors amputated her left leg later that day.
10.App.4320. They initially tried to save her right leg, even though the bomb had
blown off her entire Achilles tendon and half of her heel bone, 10.App.4320, 4323,
but that leg had to be amputated in 2015, 10.App.4307-08. Kensky’s burns, which
covered much of her lower body, had to be dressed regularly, causing “[a]bsolutely
horrendous” pain. 10.App.4324. Downes lost his left leg below the knee, and the dirt
Nine people lost one or both of their legs as a result of the first bomb—Jeff
Bauman (both legs), Karen Rand, Jessica Kensky (both legs), Patrick Downes, Celeste
Corcoran (both legs), Mery Daniel, Erika Brannock, Rebekah Gregory, and Bill White.
10.App.4063-64, 4107-08, 4148, 4307-08, 4322; 16.App.7109, 7115, 7186, 7375, 7377.
Eight people lost a leg as a result of the second bomb—Jane Richard, Adrianne
Haslet-Davis, Marc Fucarile, J.P. Norden, Paul Norden, Heather Abbott, Stephen
7362, 7373, 7435. A number of people had their feet or legs blown off entirely on
Boylston Street, while others had to have their legs amputated because they were so
Sdoia’s leg); 1.Supp.App.19 (Gov’t Exh. 40) (photo of Jane Richard’s leg), 23 at 14:40-
14:50 (video showing Fucarile’s leg). Marc Fucarile actually handed his severed leg to
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The bombs caused serious injuries to many others. The first bomb blew a hole
through 17-year-old Sydney Corcoran’s foot and severed her femoral artery.
10.App.4078, 4081, 4090. She almost bled to death on the street. 10.App.4081.
Eighteen-year-old Gillian Reny’s right tibia was “completely snapped in half and was
sticking out of [her] leg[ ],” and the muscle on her left leg was “flapping over . . . [her]
shredded jeans,” but doctors managed to save both legs. 16.App.7129, 7132, 7134,
7141-7142. Nicole Gross’s right quadriceps muscles were blown open, the tibia and
fibula in her left leg were broken, and her right Achilles tendon was three-quarters
severed. 16.App.7181, 7185. Rebekah Gregory’s five-year-old son Noah “had a cut
A piece of metal from the second bomb lodged in Denise Richard’s eye,
blinding that eye. 10.App.4292, 4294. Eleven-year-old Aaron Hern, who had been
standing next to Jane Richard, had injuries on both legs that required 62 staples to
close up. 10.App.4184, 4186-87, 4190, 4199-4200; 1.Supp.App.14 (Gov’t Exh. 29)
(photo of Aaron next to Jane). Three-year-old Leo Woolfenden had a fractured skull,
a perforated eardrum, and a laceration on the side of his head. 16.App.7425, 7436.
See 1.Supp.App.15 (Gov’t Exh. 30) (photo of Leo after the blast). Ann Whalley’s
“heel was blown off,” and she had “significant chunks of shrapnel” in her thigh, both
wrists, and her mouth. 16.App.7251-52. Her husband Eric was blinded in his right
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eye by a ball bearing that passed through the eye and into his brain. 16.App.7253.
Doctors managed to save Eric’s right leg by reconstructing the bones and
transplanting blood vessels from the left leg, but he could not walk for about 16
All told, the bombs injured more than 240 people. 10.App.4464. The scene of
the bombing was close to several hospitals, and emergency personnel and private
citizens were able to quickly transport many of the wounded to triage centers.
10.App.4234, 4448-49, 4452-53. The ready availability of critical medical care likely
prevented the death toll from being much higher. See 10.App.4081; 16.App.7279.
their injuries. See, e.g., 10.App.4069 (Rebekah Gregory—18 surgeries), 4323 (Patrick
The survivors have dealt with lasting effects from their injuries. For example,
many victims experienced ruptured eardrums that led to permanent hearing loss or
tinnitus (ringing in the ears). 10.App.4051 (Colton Kilgore), 4070 (Rebekah Gregory),
4152 (Jeffrey Bauman), 4198 (Aaron Hern), 4313, 4324-25 (Kensky and Downes),
4363 (Danling Zhou); 16.App.7110-11 (Celeste Corcoran), 7185 (Nicole Gross), 7266
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(Eric Whalley), 7282 (Adam Davis), 7355 (Marc Fucarile), 7373 (Heather Abbott),
experienced phantom pain years afterward. Roseann Sdoia sometimes felt as though
she was being tased in her amputated right foot. 10.App.4237. Patrick Downes and
Jessica Kensky experienced phantom pain that kept them up at night and that felt like
“electric pulses and shocks that just come over you randomly.” 10.App.4321, 4327.
Two years after the bombing, many survivors still had metal or debris in their
bodies that could not be removed. Jessica Kensky had about 30 or 40 BBs “pretty
deep” in her legs. 10.App.4320. Rebekah Gregory had shrapnel in her body that
occasionally would work its way to the surface and have to be removed. 10.App.4070.
Marc Fucarile had plastic, dozens of BBs, and a small nail in his body, as well as a BB
stuck in his heart. 16.App.7359-61; 1.Supp.App.92-94 (Gov’t Exhs. 1608 to 1610) (x-
rays of Fucarile showing shrapnel). In addition to shrapnel in his legs, Eric Whalley
had a ball bearing lodged in his brain. 16.App.7253, 7267. See 1.Supp.App.89 (Gov’t
After the bombs exploded, Tsarnaev and Tamerlan left Boylston Street along
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and purchased a half gallon of milk using cash. 10.App.4471-72; Gov’t Exh. 1456 at
00:08-01:05 (Whole Foods surveillance video). A minute after he left the store, he
returned and exchanged the jug of milk for a different one. Gov’t Exh. 1456 at 01:58-
3:40.
About six hours after the bombing, Tsarnaev tweeted, “Ain’t no love in the
heart of the city, stay safe, people.” 10.App.4493; 1.Supp.App.64 (Gov’t Exh. 1313)
(screenshot). That same evening, he tagged someone’s twitter account and wrote:
“and they what ‘god hates dead people?’ Or victims of tragedies? Lol [laugh out loud]
(screenshot).
The day after the bombing, when someone posted a false news story about the
(Def. Exh. 3000 at 1). That afternoon, he opened up Inspire magazine (the issue that
showed how to build bombs) on his computer. 1.Supp.App.39 (Gov’t Exh. 1142-013
at 5). See 13.App.5671-73, 5772. At about 9:00 p.m. that evening, he and a friend
went to the fitness center at the University of Massachusetts Dartmouth and worked
out for an hour. 10.App.4476, 4480-82. As he entered and left the fitness center, he
chatted with his friend. Gov’t Exhs. 1181 to 1183 (video of Tsarnaev entering and
leaving gym). At 10:43 p.m. that night, he tweeted, “I’m a stress free kind of guy.”
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Immediately after the bombing, the FBI and other law enforcement agencies
began gathering video from security cameras near the blasts and along possible escape
routes, as well as photographs and videos from bystanders’ cameras and phones.
10.App.4158-63, 4401-03, 4405. After Jeff Bauman woke up from surgery on April
16, he wrote out a description of the suspicious man he had seen, including his build,
black hat, black jacket, hoodie, backpack, and aviator sunglasses. 10.App.4148-50.
From videos and photographs, the FBI eventually pinpointed two suspects (later
identified as Tsarnaev and Tamerlan) whom they referred to as “white hat” and
At 5:00 p.m. on Thursday, April 18, the FBI held a press conference during
which they released surveillance-camera images of the bombing suspects and asked
the public to help identify them. 11.App.4753-57. See 1.Supp.App.84 (Gov’t Exh.
1510) (television screenshot from press conference). A few hours later, Tsarnaev’s
friend Dias Kadyrbayev texted him and asked, “u saw the news?” 13.App.5752;
1.Supp.App.51 (Gov’t Exh. 1153). Tsarnaev responded, “Yea bro I did . . . I saw the
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1.Supp.App.51. He added, “If yu want yu can go to my room and take what’s there :)
. . . .”7 1.Supp.App.51.
At about 10:20 p.m. that night, Officer Sean Collier of the Massachusetts
Institute of Technology (MIT) Police Department was parked in his patrol car next to
MIT’s Koch Building. 11.App.4795, 4797-98. Collier, 27, had been an MIT police
officer for just over a year and was well-liked by his fellow officers. 11.App.4768;
16.App.7212, 7238-39. Tsarnaev and Tamerlan approached Collier’s car from the rear
and shot him with the Ruger P95 that Tsarnaev had acquired from Silva.
11.App.4827-29, 4840-42; Gov’t Exhs. 723 & 724 (surveillance videos); 14.App.6039-
43, 6047 (ballistic evidence). They shot him at very close range—twice in the side of
the head, once between the eyes, and three times in the hand. 11.App.4884-86, 4894-
99, 4903-08. See 2.Supp.App.205-07 (Gov’t Exhs. 727, 728, 729) (autopsy photos).
The brothers tried to take Collier’s pistol but were thwarted by his holster’s retention
system. 11.App.4771-73, 4808-10. While they were struggling with the holster, an
MIT student rode past on his bicycle and saw Tsarnaev stand up startled from where
he was leaning into the patrol car. 11.App.4837, 4840-44. After about forty seconds,
7
Kadyrbayev did go to Tsarnaev’s room, along with two friends. They found a
backpack containing fireworks from which some of the powder had been removed,
and they threw the backpack and its contents into a dumpster. 14.App.6301-11, 6314-
15. See United States v. Kadyrbayev, No. 1:13-CR-10238, Doc. 380-1 at 3-5 (D. Mass.
Aug. 21, 2014). They also took Tsarnaev’s computer back to their apartment.
13.App.5609-10, 5652, 5679-82. Investigators later located the backpack by digging
through the landfill where the dumpster’s contents had been taken. 14.App.6302-08.
See 1.Supp.App.59-60 (Gov’t Exhs. 1256-01 and 1256-04) (photos).
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Tsarnaev and Tamerlan ran away from the patrol car, but then slowed to a walk and
returned to where their Honda Civic was parked. 11.App.4854-63; Gov’t Exh. 723
(surveillance video).
Someone in the Koch Building called 911 to report loud noises, and MIT’s
dispatch officer was unable to contact Collier on the radio. 11.App.4783-85; Gov’t
Exh. 679 (911 audio recording). Another officer arrived about five minutes after the
shooting and found Collier with blood all over his body. 11.App.4800-02. Collier still
had a slight pulse and made a gurgling sound, so officers began CPR. 11.App.4802,
A short time after Collier’s murder, a graduate student named Dun Meng
pulled to the curb along Brighton Avenue in Boston to respond to a text message.
11.App.4938-39. A sedan “pull[ed] over to the curb very quickly” behind him, and
Tamerlan got out of the passenger side and knocked on Meng’s passenger window.
11.App.4940-41, 4954. When Meng rolled down the window, Tamerlan reached in,
opened the door, and jumped inside. 11.App.4941. He pointed a gun at Meng’s head
and demanded cash. 11.App.4941. Meng gave Tamerlan his cash (about $40 or $45)
as well as his wallet and told Tamerlan his bank card PIN. 11.App.4941, 4948.
Tamerlan showed Meng that his pistol was loaded and said, “You know I’m
serious, so don’t be stupid.” 11.App.4943. He asked Meng, “Do you know the
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Tamerlan said, “I did it, and I just killed a policeman in Cambridge.” 11.App.4943.
Tamerlan ordered Meng to drive and directed him where to go. 11.App.4944-45.
They engaged in small talk, during which Tamerlan said he was a Muslim and that
Tsarnaev pulled up behind them in the sedan. 11.App.4950, 4953-54. Tsarnaev and
Tamerlan loaded some things into Meng’s Mercedes SUV, and Tamerlan made Meng
switch to the passenger seat. 11.App.4950-54. Tsarnaev then got into the back seat,
Tsarnaev got out of the car and, after asking Meng for his PIN, withdrew $800 from
the ATM with Meng’s bank card. 11.App.4954-55, 5004; 1.Supp.App.24 (Gov’t Exh.
768) (ATM records); Gov’t Exh. 756 (video of Tsarnaev using ATM). Tsarnaev tried
to withdraw another $800 but could not do so because of the daily withdrawal limit.
11.App.5005.
After Tsarnaev returned with the cash, Tamerlan continued driving toward
Waltham, Massachusetts. 11.App.4959. Tamerlan asked Meng how far his car could
go on a quarter of a tank of gas and (because it was leased) whether it could “go out
of state, like to New York.” 11.App.4937, 4959-60. Tamerlan also asked whether it
had a GPS in it, and Meng told him (falsely) that it did not. 11.App.4960-61.
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When one of Meng’s roommates called to check on him, Tamerlan pointed the
gun at Meng and said, “You have to answer the phone, but if you say a[ ] single word
Meng told his roommate (in English) that he was “very sick” and was “going to stay at
At one point, Tamerlan drove back to where Tsarnaev’s sedan was parked, and
Mercedes, and the music sounded a “bit weird” and “religious” to Meng.
pump with Meng’s credit card, but the station only accepted cash. 11.App.4972.
Tamerlan told Tsarnaev to put in $50 worth of gas, so Tsarnaev went into the
While Tsarnaev was in the store, Tamerlan was focused on his Garmin GPS
device, and the Ruger P95 was in the driver’s door pocket. 11.App.4972-74.
Tamerlan had earlier told Meng he would not kill him but might “drop you off at
someplace” where “you have to walk about five or six miles” to find anyone.
11.App.4974. Meng was unsure whether to trust Tamerlan on this point, and both
brothers claimed to have guns. 11.App.4956, 4975. Meng decided to make a break
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for it while only Tamerlan was in the car and the doors were unlocked. 11.App.4973-
75. He unbuckled his seat-belt, opened the door, and jumped out. 11.App.4975. As
he did so, Tamerlan yelled “Fuck” and grabbed at him. 11.App.4975. Meng ran to
the Mobil gas station across the street and frantically asked the attendant to call 911.
escape and request). Meng then crawled into a back room, where he hid until the
Meanwhile, Tsarnaev had been inside the Shell station casually selecting some
drinks and snacks. Gov’t Exh. 748 at 00:33-2:50 (video of Tsarnaev inside store).
After Meng’s escape, Tamerlan ran to the door of the Shell store and called to
Tsarnaev, who dumped his snacks on the counter and ran out. Gov’t Exh. 748 at
2:30-2:51. The two then drove off in Meng’s Mercedes. Gov’t Exh. 748 at 2:51-3:04.
When police arrived at the Mobil station, Meng told them that the carjackers
were the Boston Marathon bombers and that his Mercedes had a built-in tracking
contacted Mbrace and learned that Meng’s Mercedes was near 87 Dexter Avenue in
Street about 100 yards from Dexter Avenue when the dispatch went out.
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12.App.5036-37. He turned onto Dexter, where he passed a green Honda Civic and a
black Mercedes SUV driving slowly in the other direction. 12.App.5037-38. The
SUV’s license plate matched that of the carjacked vehicle, so he turned around and
began following the SUV, notifying dispatch as he did so. 12.App.5037-39. His
supervisor, Sergeant John MacLellan, radioed Reynolds not to stop the SUV until he
Reynolds followed the Honda and Mercedes as they sped up and turned left
onto Laurel Street. 12.App.5040. Sergeant MacLellan was approaching Laurel from
the other direction, so he radioed that Reynolds could “light them up.” 12.App.5067.
But before Reynolds could turn on his lights, the two cars stopped in the middle of
Laurel Street and Tamerlan, who was driving the Mercedes, got out and started
his car in reverse, and backed up about 30 yards, notifying dispatch that there were
“[s]hots fired.” 12.App.5041, 5072. See Gov’t Exh. 1564 (demonstrative exhibit)
(audio of a later radio transmission). Then, using his driver’s door as cover, he began
shooting back at Tamerlan, who ducked behind the Mercedes’s door. 12.App.5041.
cruiser, getting a bullet through his windshield as he did so. 12.App.5042, 5073. See
1.Supp.App.34 (Gov’t Exh. 948-174) (photo of bullet hole). MacLellan left his
5073-74. See 1.Supp.App.25 (Gov’t Exh. 775) (diagram of Laurel Street showing
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position of police cars). As it rolled, both McLellan and Reynolds used it for cover,
“continuing to fire at the two suspects,” who were now in front of the Mercedes’s
hood. 12.App.5043, 5074. MacLellan and Reynolds ran into a side yard on Laurel
Street and ducked behind a tree. 12.App.5043-44, 5145. Reynolds could see two
men, but he could not distinguish who was shooting. 12.App.5044. See
cigarette lighter and something that looked like a wick burning. 12.App.5044. Then
one of the brothers threw a pipe bomb at the officers, which exploded in the middle
of Laurel Street. 12.App.5044, 5076. After this explosion, Reynolds ran back to get
The Tsarnaev brothers threw a few more pipe bombs, two of which exploded.
12.App.5045, 5090, 5150. Then Tsarnaev threw a “larger-type bomb” that looked
“almost like a big cooking pot.”8 12.App.5045-46, 5077-78, 5151, 5157. See
bomb embedded in a car parked on Laurel Street). The noise of this bomb was
“incredible.” 12.App.5078. It “shook [Reynolds] to [his] knees” and made his ears
8
Two witnesses agreed that it was Tsarnaev who threw the pressure-cooker
bomb. 12.App.5077-78, 5151, 5157. Sergeant MacLellan could tell Tamerlan and
Tsarnaev apart by both their size and their throwing styles since Tsarnaev threw the
bombs with “a hook shot, over the head.” 12.App.5077. Tsarnaev also threw at least
one of the pipe bombs. 12.App.5078.
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ring. 12.App.5046. MacLellan re-holstered his pistol because his “eyes were shaking
violently in [his] head” and he “couldn’t see straight.” 12.App.5078, 5104. Car alarms
went off all along the street, and there was a huge cloud of smoke. 12.App.5046,
Reynolds ran around the house at the corner of Laurel and Dexter and returned to his
cruiser. 12.App.5047.
Officer Miguel Colon and Sergeant Jeffrey Pugliese had arrived on the scene,
and Pugliese decided to run behind the houses along Laurel Street to flank the
Tsarnaevs. 12.App.5049-50, 5121-23. Pugliese got slightly behind and to the side of
Exh. 1522) (photo of Tsarnaev brothers on Laurel Street). Tamerlan left the front of
Tamerlan got within six or eight feet of Pugliese but had a problem with his gun—
either “it jammed or he ran out of ammunition”—so he threw the gun at Pugliese,
hitting him in the left bicep.9 12.App.5128-29. Tamerlan turned and started running
toward Officers Reynolds and Colon, who were near Reynolds’s cruiser at the corner
of Dexter and Laurel. 12.App.5050-51, 5129. See 1.Supp.App.25 (Gov’t Exh. 775)
9
This was the same Ruger P95 that Tsarnaev had acquired from Silva.
12.App.5267-69; 14.App.6029-30. The Tsarnaevs fired 56 shots from the Ruger on
Laurel Street that night. 14.App.6037.
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ordered him to get on the ground. 12.App.5090. Tamerlan ignored that command,
and Sergeant Pugliese tackled him from behind. 12.App.5051, 5090, 5130. Reynolds,
Pugliese, and MacLellan tried to subdue Tamerlan and to handcuff him, but, although
he was bleeding from several wounds, they “just weren’t able to control him.”
12.App.5051-52, 5130.
While the officers wrestled with Tamerlan, Tsarnaev got back into the
Mercedes. 12.App.5152. Tsarnaev did a three-point turn and “floored” the SUV
right toward the officers, even though there was room on the street to avoid them.
12.App.5052, 5091, 5097-98, 5133, 5137-38, 5152, 5167. See 1.Supp.App.88 (Gov’t
Exh. 1525) (photo of Tsarnaev driving toward the officers). Reynolds yelled a
warning, drew his gun, and shot at Tsarnaev. 12.App.5052, 5131. Although
Reynolds’s shots hit the windshield, Tsarnaev did not stop. 12.App.5052. Sergeant
Pugliese grabbed Tamerlan by the back of the belt and “tr[ied] to drag him out of the
street to prevent him from getting struck.” 12.App.5134. He was only able to drag
Tamerlan about a foot before the Mercedes was “right in [Pugliese’s] face.”
12.App.5134. Pugliese rolled out of the way in the nick of time. 12.App.5134-36.
Tsarnaev ran the Mercedes over Tamerlan, who “kind of bounced up and underneath
the undercarriage a couple of times” and “got hung up in the rear wheels.”
5134. Tsarnaev freed the Mercedes from Reynolds’ car and sped away. 12.App.5053-
was still resisting despite his injuries. 12.App.5055-56, 5136. Paramedics transported
17.App.7892-96.
Transportation Authority Officer Richard Donohue, who had been hit in the groin by
a stray bullet. 12.App.5056-59, 5171-72. Donohue “bled out almost his entire blood
volume on the street” and was “essentially dead” when he arrived at the hospital—not
heart and stop the bleeding from his injury, but not until Donohue had received 28
hospital. 12.App.5175-76.
Tsarnaev abandoned the Mercedes on Spruce Street about two blocks from the
shootout. 12.App.5182. He then fled on foot for a short distance before smashing
his cell phones and hiding them (along with Dun Meng’s debit card) behind a shed on
(Gov’t Exh. 1455) (map showing relative locations of Laurel, Spruce, and Franklin
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Streets); 1.Supp.App.27 (Gov’t Exh. 810) (photo of smashed phones and debit card).
He then climbed into a shrink-wrapped boat near the shed. 12.App.5191, 5223-25.
Police established a perimeter around the area where they found the Mercedes
and deployed “hasty teams” of officers and dogs. 12.App.5181-83. At about 2:30
a.m. on April 19, authorities stopped the dog searches and began to use tactical teams
to search house to house. 12.App.5183-84. While the manhunt was underway, the
12.App.5187.
While hiding in the boat, Tsarnaev decided to write a manifesto justifying his
actions. In two wooden slats, he carved the words: “Stop killing our innocent people
and we will stop.” 12.App.5237-38, 5335; 1.Supp.App.78-79 (Gov’t Exhs. 1450 &
1451) (photos of slats). And with a pencil he found in the boat, 12.App.5233-34, he
wrote the following message on the boat’s fiberglass hull (portions obscured by bullet
10
The highest level of paradise in the teaching of Islam. 13.App.5937.
11
“Insha’Allah” means “God willing.” 13.App.5937.
12
“Shahid” means “martyr.” 13.App.5939.
13
Likely an abbreviation for “Insha’Allah.” 13.App.5938.
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boat).
Franklin Street and learned about the shelter-in-place order. 12.App.5222-23. He saw
through the window that his winterized boat had some loose shrink-wrap, but he
Authorities lifted the shelter-in-place order at about 6:00 p.m., though they had
not located Tsarnaev. 12.App.5187. Henneberry went outside to fix his boat.
Presumably “Our actions came with a message and that is la ilaha illa’lah
15
person lying inside with a hooded sweatshirt pulled over his head. 12.App.5224-25.
See 1.Supp.App.26 (Gov’t Exh. 805) (photo of boat the next day). Henneberry went
surrender, police threw flash-bangs into the boat and, at one point, shot at the boat
multiple times. 12.App.5193, 5198. Police finally arrested Tsarnaev about an hour
“[g]ot loud” because a dressing on his leg was tight. 17.App.7907-09. He arrived at
the hospital at about 9:00 p.m. and underwent surgery to treat his wounds, which
included a gunshot wound to the left side of his face and “multiple gunshot wounds
On June 27, 2013, a federal grand jury issued a 30-count indictment, charging
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3. Use of a firearm (pressure cooker bomb #1) during and in relation to a crime
of violence (Count 2) resulting in the murder of Krystle Campbell, in
violation of 18 U.S.C. § 924(c) and (j).
5. Use of a firearm (pressure cooker bomb #2) during and in relation to a crime
of violence (Count 4) resulting in the murders of Lingzi Lu and Martin
Richard, in violation of 18 U.S.C. § 924(c) and (j).
8. Use of a firearm (pressure cooker bomb #1) during and in relation to a crime
of violence (Count 7) resulting in the murder of Krystle Campbell, in
violation of 18 U.S.C. § 924(c) and (j).
10. Use of a firearm (pressure cooker bomb #2) during and in relation to a
crime of violence (Count 9) resulting in the murders of Lingzi Lu and
Martin Richard, in violation of 18 U.S.C. § 924(c) and (j).
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13. Use of a firearm (pressure cooker bomb #1) during and in relation to a
crime of violence (Count 12) resulting in the death by murder of Krystle
Campbell, in violation of 18 U.S.C. § 924(c) and (j).
15. Use of a firearm (pressure cooker bomb #2) during and in relation to a
crime of violence (Count 14) resulting in the murders of Lignzi Lu and
Martin Richard, in violation of 18 U.S.C. § 924(c) and (j).
16. Use of a firearm (Ruger 9mm handgun) during and in relation to a crime of
violence (Count 1) resulting in the murder of Sean Collier, in violation of 18
U.S.C. § 924(c) and (j).
17. Use of a firearm (Ruger 9mm handgun) during and in relation to a crime of
violence (Count 6) resulting in the murder of Sean Collier, in violation of 18
U.S.C. § 924(c) and (j).
18. Use of a firearm (Ruger 9mm handgun) during and in relation to a crime of
violence (Count 11) resulting in the murder of Sean Collier, in violation of
18 U.S.C. § 924(c) and (j).
20. Use of a firearm (Ruger 9mm handgun) during and in relation to a crime of
violence (Count 19), in violation of 18 U.S.C. § 924(c).
22. Use of a firearm (Ruger 9mm handgun) during and in relation to a crime of
violence (Count 21), in violation of 18 U.S.C. § 924(c).
24. Use of a firearm (Ruger and pressure cooker bomb #3) during and in
relation to a crime of violence (Count 23), in violation of 18 U.S.C. § 924(c).
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26. Use of a firearm (Ruger and pipe bomb #1) during and in relation to a
crime of violence (Count 25), in violation of 18 U.S.C. § 924(c).
28. Use of a firearm (Ruger and pipe bomb #2) during and in relation to a
crime of violence (Count 27), in violation of 18 U.S.C. § 924(c).
30. Use of a firearm (Ruger and pipe bomb #3) during and in relation to a
crime of violence (Count 29), in violation of 18 U.S.C. § 924(c).
Add.1-65.
Consistent with the Federal Death Penalty Act, 18 U.S.C. §§ 3591-3599, the
indictment set forth a number of specific allegations that would support application of
the death penalty. Add.66-71. On January 30, 2014, the government gave Tsarnaev
notice of its intent to seek the death penalty on all 17 death-eligible counts (Counts 1-
10 and 12-18) and listed the aggravating factors that it intended to prove. 1.App.133-
Under the Federal Death Penalty Act, capital trials are divided into two
phases—a guilt phase and a penalty phase. See 18 U.S.C. § 3593(b). During the 17-
day guilt phase, the government called 92 witnesses and introduced more than 1,200
exhibits. Although Tsarnaev called four witnesses, he did not dispute that he
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committed the acts charged in the indictment. 10.App.3977. Tsarnaev’s counsel said
in her opening statement, “It was him.” 10.App.3977. Counsel reiterated during her
closing argument that Tsarnaev “stands ready, by your verdict, to be held responsible
for his actions.” 15.App.6936. The jury convicted Tsarnaev on all 30 counts in the
The court then conducted a 12-day penalty phase at which the government
called 17 witnesses and Tsarnaev called 46 witnesses. After weighing the aggravating
and mitigating factors alleged by the government and the defense, the jury
10, 14, and 15. Add.75-96. See 18 U.S.C. § 3593(e). The district court sentenced
Tsarnaev to death on those counts. Add.103. See 18 U.S.C. § 3594. The court
SUMMARY OF ARGUMENT
1. The district court appropriately exercised its discretion by denying Tsarnaev’s
motions for change of venue. About 56% of the prospective jurors either had not
concluded that Tsarnaev was guilty or indicated they could set aside their opinions
about his guilt and reach a decision based solely on the evidence presented in court;
64% of prospective jurors indicated an ability to keep an open mind about the death
penalty. And all of the jurors who actually sat on the jury confirmed that they could
indicating that the jurors carefully considered the evidence. This Court has previously
rejected Tsarnaev’s claims that the jury pool—drawn from a district that extended far
Tsarnaev, 780 F.3d 14, 22 (1st Cir. 2015) (per curiam). The fact that Tsarnaev
2. The district court correctly denied Tsarnaev’s motions to strike two jurors
based on alleged dishonesty during voir dire, and it did not abuse its discretion by
questionnaire that she had tweeted or retweeted about the marathon bombing on a
number of occasions. But the juror questionnaire asked only whether she had
“commented on this case,” Add.553 (emphasis added), which Juror 286 could have
understood to refer to Tsarnaev’s criminal trial, not the marathon bombing in general.
And although Juror 286’s negative response to a question about whether she or her
family had “‘shelter[ed] in place’” during the manhunt for Tsarnaev was inaccurate,
Add.554 (emphasis omitted), Juror 286 corrected that misstatement during voir dire.
In any event, the fact that Juror 286 and her family had sheltered in place did not
Nor did Juror 138 make any dishonest statements that would have justified a
for-cause dismissal. Juror 138 had posted on Facebook about the fact that he had
been called for jury service in this case. His later negative response to a question
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about whether he had talked to anyone about “the subject matter of the case,”
3.App.1146, was not dishonest. And even if Juror 138 had fully disclosed his
Facebook posts, they would not have justified a dismissal for cause. The posts
indicated no bias, and they did not violate the district court’s instructions, which
allowed prospective jurors to “tell others that [they] may be a juror in this case.”
1.App.182.
3. The district court appropriately exercised its discretion when it dismissed for
cause Prospective Juror 355 (a criminal defense attorney) based on his opposition to
the death penalty, which would have substantially impaired him in the performance of
his duties as a juror. Although Juror 355 “thought” he could impose the death
6.App.2448. When asked whether he could impose the death penalty if he found
Tsarnaev guilty and concluded the penalty was appropriate, he repeatedly fought the
hypothetical and said he would not assume Tsarnaev’s guilt. And when asked to
could give no example beyond genocide. His tentative and evasive answers justified
4. The district court appropriately exercised its discretion when imposing limits
on voir dire. Contrary to Tsarnaev’s contention, Morgan v. Illinois, 504 U.S. 719 (1992),
did not entitle him to ask prospective jurors whether they believed the death penalty
was appropriate in light of specific aggravating circumstances. The district court did
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not commit legal error by concluding that Tsarnaev’s proposed questions were
impermissible “stakeout” questions that effectively asked the jury to prejudge the
appropriateness of the death penalty in this case without consideration of the district
court’s instructions or mitigating factors. In any event, the prospective jurors were
already aware of key facts about this case from the juror questionnaire and the court’s
preliminary instructions, and they could have considered those facts when answering
The district court also acted within its discretion when it disallowed inquiry into
the specific media coverage that prospective jurors had seen, heard, and read.
Although this Court has said in dicta that district courts should question jurors
individually about the “kind and degree” of their media exposure, Patriarca v. United
States, 402 F.2d 314, 318 (1st Cir. 1968), it has not suggested that detailed questioning
about the contents of the media coverage is required. And in Mu’Min v. Virginia, 500
U.S. 415 (1991), the Supreme Court subsequently rejected the argument that a trial
court must inquire into the contents of news reports that potential jurors have read.
Here, the questionnaire asked jurors what news sources they consumed, the amount
of media coverage they had seen, and whether, based on this coverage, they had
concluded that Tsarnaev was guilty or should receive the death penalty. This was
5. The district court appropriately exercised its discretion by excluding from the
penalty phase evidence indicating that Tsarnaev’s brother, Tamerlan, may have been
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involved in killing three people in Waltham, Massachusetts in 2011. The court also
properly denied the defense access to an interview report related to the killings.
The district court correctly concluded that evidence of the Waltham murders,
which arose out of a drug-related robbery and were completely unrelated to the
claim, the Waltham evidence did not show that Tamerlan “influenced” or
“intimidated” him into committing the crimes in this case or that Tsarnaev played a
lesser role in the bombing. Rather, the evidence showed that Tsarnaev was
independent, did not follow his brother’s strict religious lifestyle, and was a willing and
eager participant in the marathon bombing. And even if the Waltham evidence had
some minimal relevance, the district court correctly concluded that its probative value
was outweighed by the risk of confusing the issues and misleading the jury.
The district court also appropriately denied Tsarnaev access to reports and
Tamerlan in the Waltham murders. The reports and recordings were not helpful or
Tamerlan’s alleged commission of unrelated murders did not mitigate Tsarnaev’s role
in this offense. And because Tsarnaev was already aware that Todashev had
implicated Tamerlan, he cannot show that the details contained in the withheld
reports were themselves favorable and material under Brady v. Maryland, 373 U.S. 83
(1963). Regardless, even if the statements were discoverable on some other theory,
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they were protected by the qualified law enforcement privilege because disclosure of
investigation into the Waltham murders by the Middlesex County District Attorney’s
Office.
6.
evidence because it was admitted to prove other aggravating factors, including that
Tsarnaev created a grave risk of death to people other than the deceased victims, that
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crimes of violence. The victims’ testimony about their immediate reaction to the
bombing was also admissible to provide context to their testimony. And even if the
survivors’ testimony had been offered to prove the victim-impact aggravator (which it
was not), Tsarnaev’s claim would still fail. The Federal Death Penalty Act expressly
allows the government to present a wide variety of information about the effect of a
defendant’s crimes on his “victim[s],” 18 U.S.C. § 3593(a), and does not limit the term
“victim” to deceased victims. Both that term’s ordinary meaning and its use
elsewhere in § 3593 include all victims injured by a capital offense, not just those who
were killed.
In any event, any potential error did not prejudice Tsarnaev. The district court
instructed the jury to consider only the aggravating factors that the government had
alleged and to avoid being swayed by passion or prejudice. The jury heard ample
evidence about the effect of Tsarnaev’s crimes on the victims he killed and their
including witnesses’ descriptions of losing their legs and video and photographic
show that excluding the challenged victim evidence would have changed the trial’s
result.
8. Tsarnaev is not entitled to a remand for a hearing on his claim that a video
of him shopping at Whole Foods was derived from his allegedly involuntary
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statements in the hospital after his arrest. Tsarnaev waived his challenge to the video
Procedure 12(b). The district court did not abuse its discretion by denying Tsarnaev’s
request that the government provide documentary proof of the tip that led to the
video, and in any event, investigative records show that Tamerlan’s wife Katherine
Russell provided the information that led the government to search for Whole Foods
surveillance video. Finally, any error in admitting the Whole Foods video was
that Tsarnaev lacked remorse after the bombings, and Tsarnaev’s counsel even
conceded that Tsarnaev was not remorseful at any time before his arrest.
9. The district court did not admit, and the government did not use, improper
a. The district court properly exercised its discretion under Fed. R. Evid. 403 in
admitting testimony from terrorism expert Dr. Matthew Levitt that briefly mentioned
the Islamic State terrorist organization (ISIS). The district court reasonably found
that the testimony helped the jury understand how the global jihad movement
attacks. The danger of unfair prejudice was slight because the testimony was
objective, academic in tone, and brief. And even if the evidence was improperly
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audio clip of a nasheed (a type of Islamic song) over photos of Tsarnaev and the
bombing’s aftermath. The nasheed and the photos were already in evidence. The
presentation was not designed to appeal to anti-Islamic prejudices, but was tied
specifically to the trial evidence regarding Tsarnaev’s inspiration for the bombing. In
any event, the district court instructed the jury not to be swayed by passion or
certified on the verdict form that they had not considered Tsarnaev’s religious beliefs
c. The government did not plainly commit misconduct by displaying during its
penalty-phase opening statement posters of the four homicide victims alongside a still
shot of Tsarnaev raising his middle finger at a security camera. The government
notified Tsarnaev before the penalty phase that it planned to use the photos during its
opening, and the district court reasonably ruled in advance that the photos were
review, that the government committed misconduct by using photographs during its
argument that the court had already ruled were admissible for that purpose.
Contrary to Tsarnaev’s claim, the government did not say Tsarnaev’s middle
finger was a message “to his victims.” Rather, the government argued that Tsarnaev’s
gesture was intended to send the same “message” that he had written in a boat before
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his arrest, when he wrote that the bombings were a “message” to the United States
suggested that Tsarnaev lacked remorse. And even if Tsarnaev could show
misconduct, he could not show that a single photo of a rude gesture affected the
trial’s outcome. The gesture was far less dramatic than the other evidence in this case,
which included photographs and video of Tsarnaev placing and detonating a bomb
behind a row of children. Tsarnaev had the opportunity to contextualize the still shot
by showing the entire security video and eliciting evidence that he later apologized.
The district court instructed the jury that the parties’ opening statements were not
attitude toward his victims and lack of remorse for his crimes.
10. The district court correctly instructed the jury that, to impose a death
sentence, it must find that the aggravating factors “sufficiently outweigh” the
claim, the jury’s selection of an appropriate penalty is not a factual determination that
must be found beyond a reasonable doubt. This Court specifically rejected that
argument in United States v. Sampson, 486 F.3d 13, 31-32 (1st Cir. 2007) (Sampson I).
The Supreme Court’s decision in Hurst v. Florida, 136 S. Ct. 616 (2016), does not call
11. The district court did not plainly err by declining to instruct the jury that, if
the jury could not unanimously agree on whether to recommend the death penalty,
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the court would automatically sentence Tsarnaev to life without release and no new
penalty phase would occur. Although Tsarnaev asked the district court to issue an
now raises, and thus review is limited to plain error. Tsarnaev cannot show there was
any error, much less reversible plain error. The Supreme Court has specifically held
that capital defendants are not entitled to such an instruction. Jones v. United States, 527
U.S. 373 (1999). And Tsarnaev cannot show that instructions correctly explaining the
consequences of deadlock at earlier stages affirmatively misled the jury into believing
that deadlock on the death sentence would lead to a new penalty phase, or that
(contrary to their instructions) any jurors felt pressure to agree to a death verdict
12. The cumulative error doctrine does not support reversal of Tsarnaev’s
death sentences based on the errors alleged in issues V through XI. Because the
district court committed no error, much less multiple errors, the cumulative-error
doctrine does not apply. And even if the court had committed harmless errors, the
cumulative effect of those errors would not call into doubt the verdict’s reliability and
13. The district court did not violate Tsarnaev’s rights to due process or to
Aside from an ex parte motion relating to restitution that the district court never ruled
on, all of the 12 docket entries that remain ex parte on appeal relate to classified or
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otherwise sensitive material that the government submitted to the district court for in
camera review of whether the material was discoverable. The Supreme Court and this
Court have specifically endorsed such in camera review, which benefitted Tsarnaev by
enabling the district court to independently assess whether the materials were
discoverable. The court determined that the materials were not discoverable, and thus
Tsarnaev had no right to obtain them. Although Tsarnaev has not asked this Court to
do so, the Court can review the in camera materials and confirm that the district court’s
14. This Court should reject Tsarnaev’s argument that African-Americans were
underrepresented in the qualified jury wheels from which his grand and petit juries
were drawn, in violation of the fair cross-section requirements of the Jury Selection
and Service Act, 28 U.S.C. § 1861, and the Sixth Amendment. Tsarnaev concedes
that he cannot establish a prima facie claim of underrepresentation under the absolute
disparity framework required by this Court’s precedent. He argues that this Court’s
precedent “should be overruled,” Br. 451, but he has neither requested an initial en
banc hearing nor suggested that the relevant precedent has been abrogated. And even
if the en banc Court were to adopt a comparative disparity analysis, the comparative
disparities in this case are well below those that other circuits have found to be
constitutionally permissible. In any event, Tsarnaev could not prevail on his fair
cross-section claim because, in light of the racially neutral methods for constituting
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15. The district court did not plainly err in imposing a death sentence on
Tsarnaev for murders he committed when he was 19 years old. In Roper v. Simmons,
543 U.S. 551 (2005), the Supreme Court drew the line for death eligibility at age 18.
Tsarnaev asks this Court to extend that line to age 21 based on developments in brain
incorrect, but more importantly, this Court lacks the authority to overrule the
Supreme Court or to say, particularly on plain-error review, that Roper should have
ARGUMENT
I. The District Court Did Not Abuse Its Discretion by Denying Tsarnaev’s
Motions for Change of Venue.
Tsarnaev contends (Br. 45-101) that his trial in the Eastern Division of the
presumption of prejudice.” Id. at 84. He also argues in the alternative that “the
jurors’ questionnaire and voir dire responses establish actual prejudice.” Id. at 93.
population of almost five million and where more than half of the prospective jurors
had either not prejudged guilt or had stated under oath that they could set aside their
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view that Tsarnaev was guilty. And nothing in the record suggests that the seated
A. Background
In June 2014, five months before jury selection was scheduled to begin,
Tsarnaev filed his first motion for change of venue, arguing that “prejudice must be
He cited polling data collected by a defense expert indicating that potential jurors in
the Eastern Division of the District of Massachusetts were more likely to believe that
Tsarnaev was guilty and deserved the death penalty than potential jurors in the
district’s Western Division, the Southern District of New York, and the District of
response, the government argued that Tsarnaev failed to show that “12 fair and
impartial jurors cannot be found” among the Eastern Division’s “large, widespread,
number of problems with the defense expert’s analysis, including the facts that the
expert’s polling data had not been persuasive in other cases and that he
24.App.11260-84.
The district court denied Tsarnaev’s motion. Add.407-13. The court observed
that the District of Massachusetts’ Eastern Division contained about five million
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people, including many from cities and communities outside of Boston. Add.409.
“[I]t stretches the imagination to suggest that an impartial jury cannot be successfully
selected from this large pool of potential jurors.” Add.409-10. The court recognized
that “[m]edia coverage of this case . . . has been extensive.” Add.410. But neither the
defense expert’s polling nor his newspaper analysis “persuasively show[ed] that the
media coverage has contained blatantly prejudicial information that prospective jurors
could not reasonably be expected to cabin or ignore.” Add.410. The court “agree[d]
with the government that many of the search terms” in the defense expert’s
newspaper analysis were “overinclusive” and yielded “news articles that are . . .
unrelated to the Marathon bombings.” Add.410. As to the expert’s polling, the court
noted that “the response rate was very low (3%)” and was “not representative of the
some of the results were “at odds with [Tsarnaev’s] position” because they showed
that respondents in other jurisdictions were nearly as likely to believe Tsarnaev was
Although “media coverage ha[d] continued” in the eighteen months since the
Add.411 (quoting Skilling v. United States, 561 U.S. 358, 361 (2010)). In short, the
court concluded that Tsarnaev had “not proven that this is one of the rare and
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and criteria that inform a venue determination.” 24.App.11316. The district court
denied the motion, concluding that the motion was an inappropriate attempt to
the alternative, the court determined that the second motion failed on the merits
because it contained nothing “that would persuade [the court] that the denial of the
While his second motion was pending, Tsarnaev sought mandamus relief in
this Court. In re Tsarnaev, 780 F.3d 14, 17 (1st Cir. 2015) (per curiam) (explaining
sequence). A divided panel of this Court denied his petition, concluding that
Tsarnaev had “not made the extraordinary showing required to justify mandamus
relief.” In re Tsarnaev, 775 F.3d 457, 457 (1st Cir. 2015) (memorandum decision); see id.
Jury selection began on January 5, 2015, with the district court summoning
about the prospective jurors’ backgrounds, social media habits, exposure to pretrial
publicity in this case, and views on the death penalty. See, e.g., 26.App.11684-711. The
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parties agreed to excuse many of these prospective jurors, but the court called back
256 of them for further voir dire. The court and the parties questioned those
While voir dire was ongoing, Tsarnaev filed a third motion for change of
extensively, confirmed the existence of prejudice that could not be adequately weeded
out through voir dire. 25.App.11455-69. The district court denied this motion.
dire process is successfully identifying potential jurors who are capable of serving as
fair and impartial jurors in this case.” Add.463-64. Although the jury questionnaires
to in-person voir dire. Add.464-66. For example, some jurors who indicated that
they could set aside pre-conceived opinions regarding Tsarnaev’s guilt “backed off
from that position when questioned during voir dire,” while others “confirmed their
answer[s]” and indicated that “they understand and are committed to the principles of
media coverage,” but noted that “[t]he Court and the parties are diligently addressing
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While his third venue motion was pending, Tsarnaev filed a second petition for
a writ of mandamus in this Court. See Tsarnaev, 780 F.3d at 14. This Court denied the
petition in a published opinion, over Judge Torruella’s dissent. Id. at 15, 20. See id. at
29-50 (Torruella, J., dissenting). The Court concluded that Tsarnaev could not show a
clear and indisputable right to a change of venue. Id. at 20-28. Although Tsarnaev
argued that the Court “must presume prejudice for any jury drawn from the Eastern
Division of Massachusetts,” this Court found that Tsarnaev’s “own statistics reveal
that hundreds of members of the venire have not formed an opinion that he is guilty,”
and “[t]he voir dire responses have confirmed this.” Id. at 21.
The Court noted that “Boston . . . is a large, diverse metropolitan area” and
that “Boston-area residents obtain their news from a vast array of sources.” Tsarnaev,
780 F.3d at 21. Although “extensive,” the pretrial publicity consisted primarily “of
factual news media accounts” of the bombings, and the Court determined that those
accounts lacked the “grossly prejudicial character” that could warrant a change of
venue. Id. at 21-22 (citing Rideau v. Louisiana, 373 U.S. 723 (1963)). Moreover, “[t]he
nearly two years that have passed since the Marathon bombings ha[ve] allowed the
decibel level of publicity about the crimes themselves to drop and community
passions to diminish.” Id. at 22. The Court noted that, although there was “ongoing
media coverage” regarding the upcoming trial, “that would be true wherever trial is
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The Court also concluded that the then-ongoing jury selection process did not
indicate pervasive prejudice. Tsarnaev, 780 F.3d at 24-28. The district court’s process
prevarication.” Id. at 24-25. The Court agreed with the district court that Tsarnaev’s
“selective quotations” from the jury questionnaires were “misleading” because they
(quotations omitted). The Court found no “basis for concluding, on mandamus, that
district court had provisionally qualified 75 prospective jurors, which was enough for
the parties to exercise their peremptory challenges. 19 See 9.App.3768, 3894 (last
provisionally qualified juror was number 697). Two days before the trial’s guilt phase
began, Tsarnaev filed a fourth motion for change of venue. 25.App.11558-60. The
district court denied this motion orally on the first morning of trial. 10.App.3927.
peremptory challenges for the selection of alternate jurors. Fed. R. Crim. P. 24(b)(1),
Five of these were excused for hardship before the parties exercised their
19
challenges). The parties exercised these challenges to select 12 jurors and six
B. Standard of review
This Court reviews the denial of a motion for change of venue based on alleged
jury partiality for abuse of discretion. United States v. Casellas-Toro, 807 F.3d 380, 385
(1st Cir. 2015). That standard applies both to a claim that prejudice should be
presumed and a claim that the jury was actually prejudiced. Id.; United States v. Quiles-
Olivo, 684 F.3d 177, 182 (1st Cir. 2012); United States v. Rodriguez-Cardona, 924 F.2d
1148, 1158 (1st Cir. 1991). “In reviewing claims of this type, the deference due to
district courts is at its pinnacle . . . .” Skilling v. United States, 561 U.S. 358, 396 (2010).
“A trial court’s findings of juror impartiality may be overturned only for manifest
error.” Mu’Min v. Virginia, 500 U.S. 415, 428 (1991) (quotations omitted).
The Sixth Amendment provides criminal defendants the right to a trial “by an
impartial jury of the State and district wherein the crime shall have been committed.”
U.S. Const. amend. VI. See also U.S. Const. art. III, § 2, cl. 3 (“The Trial of all Crimes
. . . shall be held in the State where the said Crimes shall have been committed . . . .”).
The presumption that venue lies in the crime’s location “do[es] not impede transfer of
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for those extreme cases where publicity is both extensive and sensational in nature”
and has “inflamed passions in the host community past the breaking point.” Quiles-
Olivo, 684 F.3d at 182 (quotations omitted). See Skilling, 561 U.S. at 381 (“A
[the defendant’s] jury.” Id. at 385. “Actual prejudice hinges on whether the jurors
seated at trial demonstrated actual partiality that they were incapable of setting aside.”
The Supreme Court has presumed juror prejudice based on pretrial publicity in
only one case, Rideau v. Louisiana, 373 U.S. 723 (1963). Police filmed Wilbert Rideau’s
occasions in the two months before trial, a local television station broadcast the
confession to audiences ranging from 24,000 to 53,000 people. Id. at 724 (majority
opinion), 728-29 (Clark, J., dissenting). Rideau argued that he could not receive a fair
trial in the parish, which had a population around 150,000, but the trial court denied
his motion for change of venue. Id. at 724-25. The Supreme Court reversed Rideau’s
conviction, explaining that the community had seen him on television “in jail, flanked
by the sheriff and two state troopers, admitting in detail the commission of the
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robbery, kidnapping, and murder.” Id. at 725. “[T]o the tens of thousands of people
who saw and heard it,” this televised interview “in a very real sense was Rideau’s
trial—at which he pleaded guilty.” Id. at 726. Thus, the Court “d[id] not hesitate to
hold, without pausing to examine a particularized transcript of the voir dire,” that
In the half-century since Rideau, the Supreme Court has presumed jury
prejudice in only two other cases, each of which involved media interference with the
courtroom proceedings themselves, not mere pretrial publicity. See Estes v. Texas, 381
U.S. 532 (1965); Sheppard v. Maxwell, 384 U.S. 333 (1966). 20 But although the Court
has presumed prejudice where the “trial atmosphere . . . had been utterly corrupted by
press coverage,” the Court’s decisions “cannot be made to stand for the proposition
deprives the defendant of due process.” Murphy v. Florida, 421 U.S. 794, 798-99
(1975). Jurors need not be “totally ignorant of the facts and issues involved.” Irvin v.
20
In Estes, a dozen cameramen filled the courtroom during preliminary
hearings, and the news media “bombard[ed] the community with the sights and
sounds” of the hearing, causing “considerable disruption” and depriving the
defendant of the “judicial serenity and calm to which [he] was entitled.” Estes, 381
U.S. at 536, 538. In Sheppard, “bedlam reigned at the courthouse during the trial and
newsmen took over practically the entire courtroom,” thrusting the jurors “into the
role of celebrities” and “expos[ing] them to expressions of opinion from both cranks
and friends.” Sheppard, 384 U.S. at 353, 355. The Court has noted that reliance on
Estes and Sheppard is “misplaced” where the defendant does not claim that “news
coverage reached and influenced his jury after it was empaneled.” Skilling, 561 U.S. at
382 n.14. Tsarnaev has not made that claim here. See 21.App.9848-66 (court
questioned jurors before deliberations to ensure no post-empaneling media exposure).
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Dowd, 366 U.S. 717, 722 (1961). “[E]very case of public interest is almost, as a matter
of necessity, brought to the attention of all the intelligent people in the vicinity, and
scarcely any one can be found among those best fitted for jurors who has not read or
heard of it, and who has not some impression or some opinion in respect to its
merits.” Reynolds v. United States, 98 U.S. 145, 155-56 (1879). “It is sufficient if the
juror can lay aside his impression or opinion and render a verdict based on the
The Supreme Court did not presume prejudice in Skilling, where former Enron
executive Jeffrey Skilling was tried in Houston, Texas (where Enron was
headquartered), even though there had been substantial media coverage of Enron’s
collapse and its effect on the city. Skilling, 561 U.S. at 375-76 & n.8. The Court
in which [the Court had] presumed juror prejudice.” Id. at 381-82. First, unlike
Rideau, where the murder “was committed in a parish of only 150,000 residents,”
Houston was home to more than 4.5 million people eligible for jury service. Id. at
382. Second, “although news stories about Skilling were not kind, they contained no
could not reasonably be expected to shut from sight.” Id. Third, “over four years
elapsed between Enron’s bankruptcy and Skilling’s trial,” and “the decibel level of
media attention diminished somewhat in the years following Enron’s collapse.” Id. at
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383. “Finally, and of prime significance, Skilling’s jury acquitted him of nine insider-
The district court did not abuse its discretion by declining to presume prejudice
here. Although the publicity was “extensive,” it primarily “consist[ed] of factual news
media accounts” and did not deprive Tsarnaev of his right “to be adjudged by a fair
Tsarnaev argues that this case is similar to Rideau because “[v]irtually every
prospective juror had read publicity about Tsarnaev” and “69% thought he was
guilty.” Br. 90. These numbers do not, however, give the whole picture. Tsarnaev is
correct that 69% of the responding jurors (67% of the total venire) said they had
38% of those jurors (i.e., 26% of the venire) indicated that they would “be able . . . to
set aside [that] opinion and base [a] decision about guilt . . . solely on the evidence”
which asked:
As a result of what you have seen or read in the news media, or what
you have learned or already know about the case from any source, have
you formed an opinion:
Only 37% percent of prospective jurors indicated that they had “formed an
opinion” that Tsarnaev was guilty and were “[u]nable” to set that opinion aside.
1.Supp.App.175. Nearly 5% indicated they had not formed the opinion that Tsarnaev
was guilty, 26% said that they had formed an opinion he was guilty but were “[a]ble”
to set that opinion aside, and another 25% indicated that they were “[u]nsure”
whether he was guilty. 1.Supp.App.175. The following chart shows the venire’s
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were about five times as likely to have formed an opinion that Tsarnaev was guilty
Tsarnaev arrives at his inflated number (“42 times more likely”) by comparing
the wrong percentages. He compares the percentage of the entire venire that had been
exposed to “a little” media coverage and had formed the opinion he was guilty (1.4%)
with the percentage of the venire that had been exposed to “a lot” of coverage and
had formed that opinion (59.2%). See Br. 67 (Table 5). These numbers are distorted
by the fact that far more prospective jurors were exposed to “a lot” of media coverage
(540 people) than to “a little” (13 people). A comparison of the absolute number of
prospective jurors in each category does not demonstrate the likely effect of media
jurors’ views on the death penalty. Tsarnaev asserts that prospective jurors “who
believed Tsarnaev was guilty[ ] were 105 times more likely to also believe . . . that
Tsarnaev should die if they had been exposed to ‘a lot’ of publicity about the case
than if they had been exposed to ‘a little’ publicity.” Br. 95. The numbers are shown
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formed an opinion as to guilt or punishment, or (b) had formed an opinion but were
Nor does the composition of the venire necessarily mirror the composition of
the petit jury, as evidenced by the jury actually selected in this case. Two of the 12
jurors that convicted Tsarnaev had seen “a lot” of media coverage, and both indicated
third juror had seen “somewhere in between” “a lot” and “a moderate amount” and
indicated that she had formed the opinion that Tsarnaev was guilty, but stated that she
was able to set this opinion aside. 26.App.11842-43. Thus, although the
questionnaires show some correlation between media exposure and a belief in guilt,
the jury selection process was able to weed out those with disqualifying prejudice.
Moreover, not a single seated juror indicated that he or she had formed the opinion
based on media coverage that Tsarnaev should receive the death penalty. Add.506-61;
that Tsarnaev should receive the death penalty does not suggest that “12 impartial
Tsarnaev’s argument suffers from another flaw. He cannot show that exposure
to pretrial publicity was substantially lower in other jurisdictions. As this Court noted
before trial, Tsarnaev’s “own polling data shows that, in his preferred venue,
Washington D.C., 96.5% of survey respondents had heard of the bombings at the
Boston Marathon.” Tsarnaev, 780 F.3d at 16; see United States v. Salameh, 1993 WL
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364486, at *1 (S.D.N.Y Sep. 15, 1993) (declining to transfer venue for trial related to
1993 World Trade Center bombing, noting that the publicity “permeates the nation”).
His polling data also showed that 86.1% of respondents in D.C. believed he was
23 at 5. If the district court had transferred the case to Washington, D.C., that
relating to the transfer and trial. This marginal (and likely disappearing) difference in
media exposure did not justify a transfer. Cf. Casellas-Toro, 807 F.3d at 388-89 (96.6%
of potential jurors were aware of defendant’s murder of his wife, but defendant
Tsarnaev’s bombing of the 2013 Boston Marathon was (and was intended to
be) a “case of public interest” for the entire nation. Reynolds, 98 U.S. at 155. His
terrorist attack on the Boston Marathon was widely reported on national networks,
cable stations, and the Internet, and publicity was not confined to the District of
Massachusetts. But exposure to high levels of pretrial publicity does not necessarily
be acceptable, and no trial possible, in the most nationally significant cases. Tsarnaev
was not entitled to a jury without “any preconceived notion as to [his] guilt or
innocence.” Irvin, 366 U.S. at 723. The Constitution is satisfied when each juror
actually empaneled can “lay aside his impression or opinion and render a verdict
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based on the evidence presented in court.” Id. The voir dire process shows that there
against him” and “disclosed connections to the Marathon that were extraordinary in
their number and degree.” Br. 46, 75. See id. at 72-75, 77-78. But of the 49
without being called back for individual voir dire, 23 16 were excused by agreement of
the parties after individual voir dire,24 two were excused on defense motion,25 and 11
were never called back for individual voir dire because the court had already
245) was provisionally qualified as a juror, and his statements do not show
disqualifying bias. See 4.App.1882. Prospective Juror 245 acknowledged that it could
be “kind of difficult” to “set [media attention] aside and just isolate yourself based on
Prospective jurors 12, 137, 182, 196, 293, 301, 302, 319, 364, 372, 430, 438,
23
442, 495, 511, 522, 610, 615, and 652. See 25.App.11448-49 (dismissing some of these
jurors).
Prospective jurors 4, 14, 20, 50, 61, 85, 115, 158, 208, 248, 306, 343, 391, 529,
24
557 and 612. See 1.App.430; 2.App.629, 810, 949; 3.App.1121, 1332-33; 4.App.1692;
5.App.2057, 2251; 6.App.2487, 2700; 8.App.3338, 3437; 9.App.3623, 3753.
25
Prospective jurors 38 and 605. See 2.App.639; 8.App.3596, 3601.
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just the evidence.” 4.App.1780. But he also indicated that he would be able to decide
the case “without reference to things outside the trial.” 4.App.1780. Tsarnaev did
1,373-person venire) simply show that the voir dire succeeded in excluding those who
themselves call into question the adequacy of the jury-selection process; elimination of
these venire members is indeed one indicator that the process fulfilled its function.”
Tsarnaev’s sampling also overlooks the many prospective jurors who identified
no “connections to the Marathon” (Br. 75) and indicated that they could be impartial.
Twenty-five percent of the prospective jurors indicated that, based on their media
exposure, they were “unsure” about Tsarnaev’s guilt. 1.Supp.App.174. Nearly half
(46%) were “unsure” whether Tsarnaev should receive the death penalty.
1.Supp.App.176. And even among those jurors who had formed the opinion that
Tsarnaev was guilty and should receive the death penalty, 29% indicated that they
would be “able . . . to set aside [their] opinion and base [their] decision about guilt and
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Many more prospective jurors explained during individual voir dire that they
could set aside any previously held views. See, e.g., 1.App.380 (#21) (“I do know that
media jumps to conclusions and we don’t always have all of the facts.”); 2.App.724
(#69) (“I haven’t really formed an opinion myself. . . . I believe that it’s up to the
justice system to make that determination . . . .”); 2.App.776 (#75) (“I would listen to
the case, both sides, the defense, the prosecution, and form an opinion on what I
would hear and subject to what’s going on in the court. So that’s what I think a juror
is supposed to do. And I think I’m able to do that.”); 2.App.913 (#92) (“Obviously, I
don’t know all the facts. I haven’t paid close attention to it.”); 2.App.926 (#98) (“I
understand . . . the need for evidence, logic and following laws, and I also understand
based on your instructions that if I were to be in this case, I must only accept
whatever evidence is presented within the court. And logically I can do that, or at
least I believe I can.”); 3.App.994 (#113) (“I would be able to separate whatever
personal preconceived notions that I have based on what I was exposed to in the
press . . . .”); 3.App.1078-81 (#129) (explaining that she could set aside “preconceived
ideas,” which she was used to doing in her human resources job); 3.App.1109 (#134)
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(“I don’t know what all the evidence is which is why I couldn’t say yes [to having
Likewise, all 12 seated jurors indicated during voir dire that they could avoid
drawing any conclusions at trial based on media coverage. See 2.App.502 (#35)
(“Should I be drawing a conclusion without all the evidence presented? That’s what
my thought process was . . . .”); 2.App.542 (#41) (“I don’t really have an opinion.
Obviously, I know what happened on that day. I have seen some of it in the media,
but I don’t really follow it.”); 2.App.875 (#83) (“You know, you guys have to do a fair
job in presenting the facts the best you can. . . . I think it would be wrong to . . . have
that happens.”); 2.App.937-38 (#102) (“I can’t make a decision whether he’s guilty or
not until I hear evidence. I don’t know really much about it, so I can’t tell you one
way or the other . . . . I don’t know.”); 3.App.1151 (#138) (“I wasn’t going to make
any decisions until I’d seen everything that was presented, basically, in front of me.”);
4.App.1663 (#229) (“I’m a little bit jaded with the media . . . . I just know what the
media tells us, there’s always more.”); 5.App.2009 (#286) (“I wasn’t comfortable with
the information I knew to make an accurate decision.”); 6.App.2351 (#349) (“I can’t
know that he’s guilty, because I don’t know what the charges are or what the evidence
is and all of that.”); 6.App.2633 (#395) (“I have formed an opinion . . . based on what
I did read and had seen in the media, but I realize that that’s not all the information
that would be available to me. So . . . once I had more information, I believe that . . .
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I could change my mind. . . .”); 7.App.2880 (#441) (indicating he would “[n]eed to see
more evidence” and had not concluded that “yes, he’s guilty or, no, he’s not guilty”);
7.App.3050 (#480) (“[W]hen it did happen, it was all over the media. Everyone
comes up with their own opinion. Mine is I don’t know whether he was involved or
not. . . . I mean, I need to sit and look at evidence that would be provided and make
my decision from that.”); 7.App.3075-76 (#487) (admitting that from “the little bit
that I knew of the case, . . . it seemed he played a role in it,” but saying “I would be
able to put that aside until I see all the evidence”). These responses show that
Tsarnaev’s “representative” quotations do not reflect the views of the entire venire.
The factors that Skilling considered further support the district court’s
First, although not as large as Houston, the Boston metropolitan area is the
tenth most populous metropolitan area in the nation, with nearly five million people.
See U.S. Census Bureau, New Census Bureau Population Estimates Show Dallas-Fort-
https://www.census.gov/newsroom/press-releases/2018/popest-metro-
county.html#popest-tab6 (March 22, 2018). Compare Irvin, 366 U.S. at 719 (venue was
a rural county of 30,000 inhabitants). Moreover, the Eastern Division of the District
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rural, and coastal communities” scattered over the state’s entire eastern seaboard and
Cape Cod. Add.409. See D. Mass. Local Rule 40.1(c)(1) (listing counties in the
Eastern Division).
Tsarnaev tries to minimize this factor by pointing out that “the [media]
coverage was universal” and that “99.7% of the venire was exposed to the negative
publicity.” Br. 91. But “[p]rominence does not necessarily produce prejudice, and
juror impartiality . . . does not require ignorance.” Skilling, 561 U.S. at 381. For example,
in Patton v. Yount, 467 U.S. 1025, 1029 (1984), all but two members of a 163-person
venire (or 98.8%) had heard of the case, which involved a re-trial of the same
defendant for a brutal murder, yet the Supreme Court held that prejudice could not be
presumed. Moreover, the widespread media coverage in this case was not limited to
Massachusetts. Tsarnaev’s “own polling data show[ed] that, in his preferred venue,
Tsarnaev, 780 F.3d at 16. So the mere fact that nearly all members of the venire had
been exposed to pre-trial publicity does not support a presumption of prejudice. This
is especially true considering that “the reporting has largely been factual.” Id. at 22.
Tsarnaev also argues that, “despite the large population, everyone in this
community was affected by the crime and coalesced in the Boston Strong movement
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in a show of solidarity.” 26 Br. 91. But the district court took great care to exclude
potential jurors who were significantly “affected by the crime.” Id. And although the
provisionally qualified jurors, see Tsarnaev Br. 81—only 52% of the prospective jurors
(or their family members) had contributed to the One Fund or purchased or worn
in the Eastern Division had “coalesced in the Boston Strong movement.” Br. 91.
Tsarnaev compares this case to the trial of Timothy McVeigh, whose trial for
bombing the federal building in Oklahoma City was transferred to Denver. Br. 91
(citing United States v. McVeigh, 918 F. Supp. 1467, 1471 (W.D. Okla. 1996)). In
McVeigh, however, the issue was not whether the trial should be moved out of
Oklahoma City, upon which both parties agreed. McVeigh, 918 F. Supp. at 1470. The
bombing had killed 169 people, caused “massive damage” to the federal courthouse,
and resulted in the recusal of Oklahoma’s federal district judges. Nichols v. Alley, 71
F.3d 347, 349 (10th Cir. 1995) (per curiam). Instead, the issue was “whether to move
the trial elsewhere in Oklahoma or out of the state entirely.” Tsarnaev, 780 F.3d at 23.
And, “[i]nsofar as the cases are similar, the McVeigh judge’s decision to move the trial
The “Boston Strong” slogan “appears to have arisen in the aftermath of the
26
marathon bombings,” Add.495 n.11, and was, at least initially, “about civic resilience
and recovery,” Tsarnaev, 780 F.3d at 25 n.13. The One Fund was a foundation set up
to help the marathon bombing victims. 23.App.10795.
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to Denver does not suggest that a decision to keep [Tsarnaev’s] trial in Boston is an
Tsarnaev also points out that “[t]he bombings targeted a Boston tradition and
the city itself.” Br. 91. But the venire was drawn from a large part of the state, not
just Boston. The geographic diversity of the jury pool is reflected in the jury that was
actually selected, whose cities of residence are shown in this map (alternate jurors
See Doc. 1639. (Two seated jurors and one alternate were from Peabody,
Massachusetts, marked by Point F.) “Given this large, diverse pool of potential
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jurors, the suggestion that 12 impartial individuals could not be empaneled is hard to
Second, this case was not “marred by the repeated broadcast of a defendant’s
questionable taped confession two months before trial in a small area of 150,000
people, as in Rideau.” Tsarnaev, 780 F.3d at 21. The publicity “consist[ed] of factual
news media accounts” that were not “of the grossly prejudicial character that attended
Rideau.” Id. at 22. See Beck v. Washington, 369 U.S. 541, 556 (1962) (noting that pretrial
publicity consisted of “straight news stories rather than invidious articles which would
tend to arouse ill will and vindictiveness”); United States v. Angiulo, 897 F.2d 1169, 1181
(1st Cir. 1990) (“To justify a presumption of prejudice . . . , the publicity must be both
extensive and sensational in nature.”). Cf. Casellas-Toro, 807 F.3d at 383 (media had
published allegedly false rumors about the defendant, including that he had
was prejudicial. Br. 56-60, 89. First, he contends that the venire was exposed “not
just to a single confession from the defendant, but to multiple confessions.” Br. 89.
See id. at 60. He points out (Br. 56) that the news media characterized as a
“confession” the message he wrote inside the boat explaining his motive for the
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the boat was admissible and admitted at trial. Thus, any pretrial exposure to the
admitted at trial.” Br. 86. He points out (Br. 86-87) that two confessions (one written
and one oral) were admitted at trial in Rideau. See Rideau, 373 U.S. at 730 (Clark, J.,
dissenting). But Rideau’s finding of presumed prejudice was not based on the
admitted confessions; it was based on the “televised interview,” which, “to the tens of
thousands of people who saw and heard it, in a very real sense was Rideau’s trial—at
The Supreme Court and other courts of appeals have recognized that
Compare, e.g., Sheppard, 384 U.S. at 360 (noting that the information reported by the
media was “clearly inadmissible” and that “[t]he exclusion of such evidence in court is
rendered meaningless when news media make it available to the public”), with Murray
v. Schriro, 882 F.3d 778, 805 (9th Cir.) (“There was no inflammatory barrage of
information that would be inadmissible at trial. Rather, the news reports focused on
relaying mainly evidence presented at trial.”), cert. denied, 139 S. Ct. 414 (2018);
Henderson v. Dugger, 925 F.2d 1309, 1314 (11th Cir. 1991) (“[B]ecause we have found
[the defendant’s] confessions were admissible, the damage if any from the [pretrial]
media, the resulting prejudice may dissipate. See Patton, 467 U.S. at 1029. Media
presumption of prejudice. 27
Tsarnaev also notes that the media referenced his “admissions” to the FBI after
his arrest, which were “not introduced at trial.” Br. 56. Those news articles do not
24.App.10930, 10935, 11053, to his role in the bombings is not nearly as “dramatic[ ]
382-83. And other evidence admitted at trial—such as the message Tsarnaev wrote in
Furthermore, Tsarnaev did not contest his guilt; indeed, his counsel essentially
asked the jury to convict him during the guilt phase. See 10.App.3977 (“There’s little
that occurred the week of April the 15th—the bombings, the murder of Officer
responsibility for his actions . . . .”); 15.App.6958 (“[W]e are not asking you to go easy
on [Tsarnaev]. . . . The horrific acts that we’ve heard about, the death, destruction
This is particularly true considering that Tsarnaev wrote his statement in the
27
boat to “shed some light on our actions,” which, he said, “came with a [me]ssage.”
11.App.4555-56. Tsarnaev voluntarily wrote a manifesto, and he can hardly complain
that it became public.
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and devastation . . . deserve to be condemned, and the time is now.”). So any pretrial
with both the overwhelming evidence and Tsarnaev’s own admissions at trial. It
Tsarnaev also points out that “[s]ome articles falsely claimed that [he] wrote
‘Fuck America’ in the boat.” Br. 56. This inaccurate report appears in only one of the
America”). And the jury was able to see Tsarnaev’s messages and even view the entire
The jury therefore learned definitively that Tsarnaev did not write “Fuck America.”
Moreover, even if jurors had read and remembered this inaccurate claim, the
resulting prejudice would be minimal in light of the other evidence. Jurors read
Tsarnaev’s text messages calling President Barack Obama and now-Senator Mitt
Romney “s[a]tan ass niggas.” 1.Supp.App.68 (Gov’t Exh. 1385); 14.App.6341. They
read Tsarnaev’s statement in the boat that “killing innocent people . . . is allowed”
(Gov’t Exhs. 827, 828); 11.App.4555-4557. And they saw video of Tsarnaev raising
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Second, Tsarnaev points out that many articles “described the video footage of
the Tsarnaev brothers walking down Boylston Street carrying the backpacks
containing the bombs.” Br. 56. He also points out that this video and another video
depicting the bomb blasts were posted online and viewed millions of times. Br. 56-
57. But that information would not have unfairly swayed the jury. Although those
specific videos were not admitted at trial (though they could have been), very similar
videos of the bombing were put into evidence. See Gov’t Exhs. 5, 22. Nor were the
videos unfairly prejudicial, especially considering that Tsarnaev did not contest his
guilt. Moreover, the “nearly 30 million views” (Br. 57) that the Boston Globe’s
outside Massachusetts. Unlike in Rideau, exposure to those videos was not unique to a
particular venue.
descriptions” of the “pain and suffering” endured by the decedents’ families, as well
as the survivors’ “horrific injuries,” “the daunting recoveries they faced, and their
courage as they went through the rehabilitation process.” Br. 57-58. Although this
media coverage would likely engender sympathy for the victims, it was not “blatantly
Skilling, 561 U.S. at 382-83. And similar evidence about the victims’ horrific injuries
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and the impact on the deceased victims was admitted at trial. See, e.g., 10.App.4066
(“[M]y bones and all of my flesh was sticking out of my left hand and blood was
running down my arm.”); 4142 (“I looked down and I saw my legs, and it was . . .
pure carnage. . . . I could see my bones and my flesh sticking out.”), 4286-95 (injuries
11, 7223-27 (effect on Sean Collier’s family), 7335-40; Gov’t Exh. 1600 (video
showing effect on Lingzi Lu’s family). Jurors who sat through the poignant trial
coverage. The mere existence of the coverage does not show that an impartial jury
Fourth, Tsarnaev points out that the media reported the views of “prominent
community members[ ]” and some victims’ families that Tsarnaev should receive the
death penalty. Br. 58-59. See id. at 89-90. But the media also reported personal
The Boston Globe ran an editorial arguing that then-U.S. Attorney General Eric Holder
erred in authorizing the death penalty. 24.App.11051. And the Globe conducted a poll
of those diverse viewpoints, jurors were unlikely to be prejudiced in favor of the death
penalty by media coverage. And considering that only 25% of prospective jurors had
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formed the opinion that Tsarnaev should be punished by death, any effect these
reports had did not prevent the district court from selecting an impartial jury.
“a terrorist,” or “evil.” Br. 59-60. See id. at 89. As an initial matter, such
characterizations are hardly surprising given the nature of Tsarnaev’s crimes, which
his own counsel described as “tragic,” “senseless,” “horribly misguided,” and inspired
by “violent Islamic extremism.” 10.App.3975, 3976, 3978. In any event, the fact that
some people expressed such views to the news media is not enough to presumptively
members of the community will condemn the actions with harsh words. But “even
pervasive, adverse publicity does not inevitably lead to an unfair trial.” Nebraska Press
Ass’n v. Stuart, 427 U.S. 539, 554 (1976). And the media publication of these
viewpoints does not show that the passions of every person in the Eastern Division
were “inflamed . . . past the breaking point.” Quiles-Olivo, 684 F.3d at 182 (quotations
omitted).
took place within two months of his arrest and televised confession, Tsarnaev’s trial
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took place almost two years after the marathon bombing. See 10.App.3922, 3944
mandamus relief, “[t]he nearly two years that have passed since the Marathon
bombings ha[ve] allowed the decibel level of publicity about the crimes themselves to
drop and community passions to diminish.” Tsarnaev, 780 F.3d at 22. See also
Add.411 (district court’s judgment that, eighteen months after the bombing, “media
coverage has continued but the ‘decibel level of media attention [has] diminished
somewhat’” (quoting Skilling, 561 U.S. at 361)). Cf. Casellas-Toro, 807 F.3d at 383-84,
388 (jury selection in defendant’s federal trial took place just two months after the
defendant confessed to a brutal murder and was initially convicted, but his conviction
Arizona, 384 U.S. 436 (1966). Patton, 467 U.S. at 1027. At voir dire for his second
trial, 98% of the venire had “heard of” the case, and 77% “admitted they would carry
an opinion into the jury box.” Patton, 467 U.S. at 1029. Eight of the 14 jurors and
alternates admitted that they had previously formed an opinion regarding the
defendant’s guilt. Id. at 1029-30. But the Supreme Court rejected the defendant’s
claim that prejudice should be presumed, pointing out that “prejudicial publicity [had]
greatly diminished and community sentiment had softened” in the four years that
elapsed between the first and second trials. Id. at 1032. Similarly here, the time that
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passed between the 2013 bombing and the 2015 trial allowed passions to cool and
The jury did not acquit Tsarnaev on any counts, but that is hardly surprising
considering that Tsarnaev did not contest his guilt. See 10.App.3977-3978;
15.App.6958. The jury did, however, decline to impose the death penalty on 11 of the
17 counts for which the government sought it. Add.96. This indicates just as
persuasively as the acquittals in Skilling that the jury did not act out of bias or
prejudice, but took seriously its responsibility to weigh the aggravating and mitigating
odd for an appellate court to presume prejudice in a case in which jurors’ actions run
counter to that presumption.” Skilling, 561 U.S. at 383. There is no justification for
Indeed, the jury failed to find one aggravating factor (advocating additional
28
acts of terrorism) with respect to any count, found some aggravating factors to exist
only as to certain counts, and took a nuanced approach to the mitigating factors, with
at least one juror finding each of the 21 listed factors, but all the jurors agreeing only
on four. See Add.82-92. This was far from being a straight verdict for the
government.
In Casellas-Toro, by contrast, the jury’s verdict “support[ed] a presumption of
juror bias” because the jury convicted on all three counts, but the district court
granted a judgment of acquittal on two of them. Casellas-Toro, 807 F.3d at 388.
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case, the government could rebut that presumption. This Court has assumed, without
F.3d at 388-90. See also United States v. Moreno Morales, 815 F.2d 725, 739 n.18 (1st Cir.
impartiality in the voir dire testimony.”). As the Supreme Court has made clear, an
error is “structural” and therefore subject to reversal without inquiring into prejudice
“only in a very limited class of cases.” Neder v. United States, 527 U.S. 1, 8 (1999)
should not be considered a structural error. The effects of the error can be
ascertained through voir dire, and the district court can ensure that individuals actually
selected for the jury do not have the same biases that pervade the more general
population. As explained below, the record shows that the jury that convicted
Tsarnaev was not biased. The government therefore could meet its burden of
actual partiality that they were incapable of setting aside.” Quiles-Olivo, 684 F.3d at 183
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. . . should be mindful that their judgments lack the on-the-spot comprehension of the
situation possessed by trial judges.” Skilling, 561 U.S. at 386. “When pretrial publicity
is at issue, ‘primary reliance on the judgment of the trial court makes [especially] good
sense’ because the judge ‘sits in the locale where the publicity is said to have had its
effect’ and may base her evaluation on her ‘own perception of the depth and extent of
news stories that might influence a juror.’” Id. (quoting Mu’Min, 500 U.S. at 427).
them, the prospective juror’s inflection, sincerity, demeanor, candor, body language,
and apprehension of duty.” Id. “[T]he trial court’s resolution of such questions is
entitled, even on direct appeal, to special deference.” Patton, 467 U.S. at 1038
(quotations omitted).
presumed-prejudice arguments, pointing out that “99.7% of the venire admitted they
had been exposed to some amount of the publicity” and that “920 [prospective] jurors
. . . reached the conclusion that Tsarnaev was guilty based solely on what they had
heard before coming to court.” Br. 95. He also cites prospective jurors’ “[i]ndividual
responses” to the juror questionnaire. Id. at 95-96. Although he admits that these
prospective jurors “were not provisionally qualified” and did not sit on his jury, id. at
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96, he argues that their views are relevant based on this Court’s observation that
may properly question the remaining jurors’ avowals of impartiality, and choose to
presume prejudice.” Casellas-Toro, 807 F.3d at 390 (quoting Angiulo, 897 F.2d at 1181-
82).
This Court’s observation in Casellas-Toro (echoing other cases) was based on the
Supreme Court’s dicta in Murphy, 421 U.S. at 803, which observed that “[i]n a
reliability of the others’ protestations may be drawn into question.” Murphy cited the
example of Irvin, 366 U.S. at 727, where “90% of those examined on the point were
inclined to believe in the accused’s guilt.” Murphy, 421 U.S. at 803. But Murphy
concluded that where only “20 of the 78 persons questioned . . . indicated an opinion
as to [the defendant’s] guilt,” the facts did not “suggest[ ] a community with sentiment
displayed no animus of their own.” Id. Subsequently, in Patton, the Supreme Court
rejected a challenge to the jury where 77% of the venire “admitted they would carry
an opinion into the jury box.” Patton, 467 U.S. at 1029. This is higher than the 67%
of prospective jurors in Tsarnaev’s case who indicated that they had formed the
opinion that Tsarnaev was guilty, and far higher than the 37% who had formed that
opinion and could not set aside that view. Moreover, in Skilling, the Court observed
that “[s]tatements by nonjurors do not themselves call into question the adequacy of
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the jury-selection process; elimination of these venire members is indeed one indicator
that the process fulfilled its function.” Skilling, 561 U.S. at 389 n.24. So the fact that
some prospective jurors expressed disqualifying prejudice does not support the
inference that the seated jurors were lying when they indicated an ability to be
impartial.
This Court has already addressed some of the potential jurors’ statements that
Tsarnaev now quotes, concluding that they were not “so common among the pool of
excused jurors that a court must infer bias among others who have been provisionally
qualified.” Tsarnaev, 780 F.3d at 27. “It is not surprising that in a pool of over a
thousand jurors . . . , some will make strong statements that disqualify them from jury
service.” Id. But other prospective jurors “expressed their ability to be fair and
impartial,” and the district court evaluated their claims through “extensive voir dire.”
Id. The district court’s conclusion that impartial jurors could be found was not
Tsarnaev next points to several facts that, in his view, show the actual prejudice
of the seated jurors in this case. First, he points out that “all 12 seated jurors (and all
six alternates) admitted to having been exposed to . . . pre-trial publicity.” Br. 97. But
the Supreme Court’s cases clearly establish that this fact alone does not show
prejudice. See Skilling, 561 U.S. at 381 (“Prominence does not necessarily produce
prejudice, and juror impartiality . . . does not require ignorance.”); Patton, 467 U.S. at 1029
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(98.8% of prospective jurors had heard of the case); Reynolds, 98 U.S. at 155-56
(“[E]very case of public interest is . . . brought to the attention of all the intelligent
people in the vicinity . . . .”). And, as demonstrated by his polling data, Tsarnaev
would have been hard-pressed to find any U.S. jurisdiction in 2015 where a significant
percentage of potential jurors had not been exposed to media coverage of the
bombing. See Tsarnaev, 780 F.3d at 16 (“[I]n his preferred venue, Washington D.C.,
Second, Tsarnaev asserts that “before hearing even a single witness testify . . . 6
of the 12 seated jurors admitted they believed Tsarnaev participated in the bombings
and 3 of these 6 admitted they already thought Tsarnaev was guilty of the charges.”
Br. 97. See id. at 83-84 (voir dire quotations). Tsarnaev is correct that three of the
seated jurors (Jurors 349, 395, and 487) indicated in their questionnaires that they had
formed the opinion Tsarnaev was guilty. See 26.App.11843, 11870, 11955. But they
also checked the box saying they would be “able . . . to set aside [their] opinion[s] and
base [their] decision[s] about guilt and punishment solely on the evidence that will be
presented . . . in court.” Id. And each was “unsure” whether Tsarnaev should receive
The Supreme Court has made clear that a juror is not disqualified for having
“formed some impression or opinion as to the merits of the case.” Irvin, 366 U.S. at
722. “It is sufficient if the juror can lay aside his impression or opinion and render a
verdict based on the evidence presented in court.” Id. at 723. All three jurors
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expressed an ability to do so, both in their questionnaires and during voir dire. See
indicated on the questionnaire that she believed Tsarnaev was “guilty,” she “realized”
that “I can’t know that he’s guilty, because I don’t know what the charges are or what
As to the three additional jurors that Tsarnaev says “admitted they believed
Tsarnaev participated in the bombings,” Br. 97, the full context of their voir dire
statements does not indicate that they were biased. Juror 83 candidly admitted, “I
don’t think this would be a case of mistaken identity,” and “obviously he [Tsarnaev]
was involved in something.” 2.App.874, 879. But that juror added: “[I]t is my
understanding that you’re . . . innocent until proven guilty.” 2.App.874. Juror 229
admitted when pressed by defense counsel that “I guess, yes, I suppose that we knew
that he was involved.” 4.App.1675. But she explained she was “unsure” about
Tsarnaev’s guilt because “I’m a little bit jaded with the media, and I just thought with
our legal system I should keep an open mind. . . . I just know what the media tells us,
there’s always more.” 4.App.1663. “So I felt like, you know, you’re innocent before
proven guilty, that I should have that open mind.” Id. Juror 286 said she “assume[d]”
while watching the news that “the police . . . got who they were looking for.”
5.App.2009. But she explained that “I wasn’t comfortable with the information I
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Far from demonstrating “actual partiality” that these three jurors were
“incapable of setting aside,” Quiles-Olivo, 684 F.3d at 183, their voir dire responses
show that they were unwilling to prejudge Tsarnaev’s guilt without first seeing the
charges and hearing the evidence. As with all the seated jurors, the district court
confirmed through additional questioning that these jurors could apply the
belief that Tsarnaev was “involved” with the bombing does not establish disqualifying
prejudice. And any details the jurors might have remembered from pretrial media
coverage paled in comparison to what they heard and saw at trial. See 21.App.9864
(juror observing after the guilt phase that he was now “an eyewitness” to the
bombing).
Third, Tsarnaev points out (Br. 82, 97) that five of the seated jurors had made
(Juror 35 made a $50 or $75 contribution); 5.App.2010 (Juror 286 attended a One
Fund concert and bought a “Boston Strong” t-shirt); 6.App.2353 (Juror 349 bought a
“life is good” t-shirt with some proceeds going to One Fund); 26.App.11872 (Juror
395 contributed to One Fund); 7.App.3086 (Juror 487 bought a “Boston Strong” t-
shirt for her nephew). The mere fact that these five jurors had contributed to a
charitable cause aimed to aid the victims of the bombing does not show that they
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harbored actual prejudice against Tsarnaev. As this Court observed, “the Boston
Strong theme is about civic resilience and recovery. It is not about whether
[Tsarnaev] is guilty of the crimes charged.” Tsarnaev, 780 F.3d at 25 n.13. “That
someone buys a Boston Strong T-shirt is not proof that he or she could not be fair
and impartial if selected as a potential juror on the question of guilt.” Id. All five of
these jurors indicated that they could decide the case based on the evidence presented.
Tsarnaev did not move to strike any of them for cause, “strong evidence that he was
convinced the jurors were not biased.” Beck, 369 U.S. at 558. The district court’s
Fourth, Tsarnaev asserts that “it took 21 court days . . . to obtain this
compromised jury.” Br. 97. But, as this Court pointed out previously, a jury selection
of this length is “not unusual,” particularly for a death penalty case that received
nationwide attention. Tsarnaev, 780 F.3d at 26 & n.14 (citing cases). “Moreover, it
defies logic to count the efforts the district court has taken to carefully explore, and
eliminate, any prejudice as showing the existence of the same.” Id. at 26. Tsarnaev
points (Br. 97) to the Supreme Court’s statement that “[t]he length to which the trial
court must go in order to select the jurors who appear to be impartial is another factor
802-03. But Murphy does not suggest that a 21-day voir dire in a capital case raises an
inference of prejudice.
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Finally, Tsarnaev argues that “the Court should also consider that at least two
of the seated jurors deceived the [district c]ourt as to their bias against Tsarnaev.” Br.
98. As explained below, these jurors were not dishonest, and any inaccuracies in their
jurors who convicted him were anything short of impartial. They assured the district
court that they could be impartial, and the court “did not simply take venire members
who proclaimed their impartiality at their word.” Skilling, 561 U.S. at 394. The court
conducted individualized voir dire during which both the court and the parties were
able to ask the jurors questions. “This face-to-face opportunity to gauge demeanor
and credibility, coupled with information from the questionnaires regarding jurors’
backgrounds, opinions, and sources of news, gave the court a sturdy foundation to
assess fitness for jury service.” Id. at 395. The district court individually questioned
the seated jurors a second time before the end of the guilt phase to ensure that they
had avoided media coverage during the trial. See 21.App.9848-66. And the jury’s
decision to impose the death penalty on only six of the 17 death-eligible counts
“suggests the court’s assessments were accurate.” Skilling, 561 U.S. at 395. This
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Tsarnaev argues that, even if the Constitution does not require a change of
venue, this Court should require one based on Federal Rule of Criminal Procedure 21
and this Court’s supervisory power. Br. 93. Although Tsarnaev summarily mentioned
11558, he never argued that Rule 21’s standard is more lenient than the constitutional
standard, and he never mentioned the court’s supervisory power. He therefore failed
to preserve this argument, meaning that this Court’s review is for plain error. Fed. R.
Crim. P. 52(b). To obtain relief under this standard, Tsarnaev must show “that (1)
there is an error; (2) the error is clear or obvious, rather than subject to reasonable
dispute; (3) the error affected [his] substantial rights . . . ; and (4) the error seriously
States v. Marcus, 560 U.S. 258, 262 (2010) (quotations and brackets omitted).
It is not “clear or obvious” that the standard under Rule 21 or a federal court’s
standard.” Br. 93. Rule 21 requires transfer if the district court is satisfied that “the
defendant cannot obtain a fair and impartial trial” in the district. Fed. R. Crim. P.
ensures the right to “an impartial jury” and a “fair trial.” Skilling, 561 U.S. at 377-78.
It would make little sense to interpret the term “fair and impartial trial” in Rule 21 to
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mean something other than the “fair trial” by an “impartial jury” guaranteed by the
Sixth Amendment.
Congress.” United States v. Hasting, 461 U.S. 499, 505 (1983). And a few justices have
suggested in individual opinions that the Court’s supervisory powers may justify a
change of venue even when the Constitution does not. See Skilling, 561 U.S. at 446
n.9 (Sotomayor, J., dissenting); Murphy, 421 U.S. at 804 (Burger, C.J., concurring);
Rideau, 373 U.S. at 728-29 (Clark, J., dissenting). But the Court has never adopted that
view, and it has made clear that its inherent power “does not include the power to
develop rules that circumvent or conflict with the Federal Rules of Criminal
Procedure.” Carlisle v. United States, 517 U.S. 416, 426 (1996). Because Rule 21 already
be inappropriate for courts on their own authority to create a lower threshold for
transfer. See id. at 426-28 (court could not invoke inherent power to circumvent
Federal Rule of Criminal Procedure 29’s time limits for a motion for judgment of
acquittal). That is particularly true here, where Tsarnaev forfeited his argument that
Nor is it “clear or obvious” that Tsarnaev would be entitled to relief under the
“more expansive Rule 21 standard” that he advocates. Br. 93. He admits that the
Supreme Court has “never articulated” this supposedly lower standard, Br. 93, and he
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points to no authority from this Court establishing such a standard. The district court
did not plainly err by failing to sua sponte order a change of venue based on its
supervisory power.
change of venue” based on the “heightened need for reliability” in capital cases. Br.
99 (quoting Caldwell v. Mississippi, 472 U.S. 320, 323 (1985)). To be sure, the
importance of an impartial jury is at its peak “[w]here one’s life is at stake.” Irvin, 366
U.S. at 727. But the Sixth Amendment already “secures to criminal defendants the
right to trial by an impartial jury.” Skilling, 561 U.S. at 377. Even in capital cases, the
Supreme Court has relied on the Sixth Amendment as guaranteeing an impartial jury.
See Ross v. Oklahoma, 487 U.S. 81, 85 (1988) (“It is well settled that the Sixth and [in
state cases] Fourteenth Amendments guarantee a defendant on trial for his life the
right to an impartial jury.”). And the Court has recognized even in capital cases “the
wide discretion granted to the trial court in conducting voir dire in the area of pretrial
publicity.” See Mu’Min, 500 U.S. at 427. Here, the district court’s careful voir dire
ensured that Tsarnaev received an impartial jury. The Eighth Amendment required
nothing more.
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gave knowing false answers during voir dire about their social media postings and that
Juror 286 falsely indicated that she and her family did not shelter in place. Br. 102-
160. He argues that the district court’s “failure to strike both [jurors] for cause was
. . . his death sentences.” Br. 103. “At a minimum,” he argues, this Court “should
remand for further proceedings.” Br. 103-04. In fact, the jurors were not dishonest
about their social media postings. Although Juror 286 appears to have given an
place, she volunteered that fact during her individual voir dire, correcting the
inaccuracy and alerting defense counsel to the issue. And even if both jurors had fully
disclosed everything Tsarnaev argues they should have, they would not have been
evidentiary hearing.
A. Background
1. Juror 286
When Juror 286 filled out her jury questionnaire in January 2015, she disclosed
in response to Questions 29 and 30, which asked jurors about their social media use,
that she looked at Facebook and Twitter “daily,” but did not “post daily.” Add.544.
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Question 79 asked whether she had “commented on this case in a letter to the editor,
in an online comment or post, or on a radio talk show.” Add.553. Juror 286 wrote,
“[I] don’t believe I have.” Add. 553. In response to Question 81, which asked
whether she or a family member had been “personally affected by the Boston Marathon
bombings or any of the crimes charged in this case (including being asked to ‘shelter
Months before she appeared to fill out her questionnaire, between April 2013
and April 2014, Juror 286 had tweeted or retweeted posts about the Boston Marathon
bombing 22 times.29 See 25.App.11538-51. For example, on the day of the bombing,
she tweeted, “Need something to make you smile and warm your heart after today’s
Martin Richard, she tweeted, “Little 8yr old boy that was killed at marathon, was a
Savin Hill little leaguer :-( RIP little man #Dorchester #bostonmarathon.”
Add.537.) On April 19, she indicated that she was “locked down” with her family,
saying, “[I]t’s worse having to work knowing ur family is locked down at home!!
When a Twitter user “retweets another user, the other user’s original tweet
29
will appear on the retweeter’s timeline” with a notation that it is “Retweeted.” One
Wisconsin Now v. Kremer, 354 F. Supp. 3d 940, 944-45 (W.D. Wis. 2019).
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that had been posted by other users, including a tweet that said, “Told y’all. Welcome
25.App.11540. Another tweet that Juror 286 retweeted said, “Congratulations to all
of the law enforcement professionals who worked so hard and went through hell to
bring in that piece of garbage.” 25.App.11540. Over the following year, Juror 286
retweeted additional posts relating to the victims, including a photo of Sean Collier
and Richard Donohue (the Transportation Authority officer who almost died on
Laurel Street) at their police academy graduation, a photo of Martin Richard’s younger
sister Jane singing the national anthem at Fenway Park, and a photo of Martin’s older
brother Henry running the Boston Marathon’s Youth Relay races in April 2014.
25.App.11548-50.
When Juror 286 appeared for individual voir dire on February 4, 2015, she said
that she used Facebook, Twitter, and Instagram for “just social” purposes, saying,
“Twitter, I watch TV and kind of tweet while I’m watching TV with other people that
are watching the same programs that I’m watching.” 5.App.2007. She indicated she
had “[a]bsolutely” seen reports about this case and saw “everything on the news.”
5.App.2009. But she explained that she had not formed an opinion regarding
Tsarnaev’s guilt because “I don’t feel I knew enough of the facts to base a decision
[on].” 5.App.2009. And she indicated that she would “[a]bsolutely” be able to apply
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the presumption of innocence and to acquit Tsarnaev if the government failed in its
proof. 5.App.2009-10.
Juror 286 indicated that she had “never really thought” about the death penalty,
but was neither for nor against it and could vote to impose it or a sentence of life
imprisonment, depending on the facts and the law. 5.App.2011. When asked if she
could “listen to all th[e] evidence,” consider the aggravating and mitigating factors,
and “choose in either direction depending on how [she] weighed the evidence,” she
stated, “I guess I don’t feel like I’m the one that’s sentencing someone to death or
prison for the rest of their life.” 5.App.2013. It was the person’s “own actions that
are determining that,” and she would just be “following the law.” 5.App.2013. Since
she had been “told to follow the law,” she would “decide . . . by what [she had] heard
2. Juror 138
responses from two of his Facebook “friends,” who said, “How’d you get stuck going
to Boston?” and “Did you get picked for the marathon bomber trial!!! ??? That’s
awesome!” 25.App.11537. Juror 138 responded, “Ya awesome alright haha there’s
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like 1000s of people.” 25.App.11537. Over the next few hours, people left more
comments, saying,
They’re gonna take one look at you and tell you to beat it.
25.App.11537.
(including Juror 138) “not to discuss this case with your family, friends or any other
person.” 1.App.182. The court said prospective jurors were allowed to “tell others
that you may be a juror in the case” and to “discuss the schedule with your family and
employer.” 1.App.182. But it warned them “not to discuss anything else, or allow
anyone else to discuss with you anything else until you have been excused, or if you’re
a juror, until the case concludes.” 1.App.182. And it told them not to “communicate
about this case or allow anyone to communicate about it with you by phone, text
Later that day, Juror 138 returned to the Facebook thread and posted:
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23rd or 24th...then the whole trial it self is going to be 3-4 months they
say
25.App.11537.
A few minutes later, he added: “Shud be crazy he was legit like ten feet infront
of me today with his 5 or 6 team of lawyers...can’t say much else about it tho...that’s
against the rules.” 25.App.11537. This prompted a number of responses from his
Facebook friends:
Whoa!!
Play the part so u get on the jury then send him to jail where he will be
taken care of
25.App.11537. Juror 138 responded: “When the Feds are involved id rather not take
Facebook friend added one more comment: “Yea super careful bc should you get
picked any mention of anything can get you booted or call for mistrial.”
25.App.11537.
When Juror 138 returned for individual voir dire a few weeks later (on January
23), the district court said, “I had instructed everyone to avoid any discussion of the
subject matter of the case with anybody. You could talk about coming here,
obviously, but—and also to avoid any exposure to media articles about the case.
Have you been able to do that?” 3.App.1146. Juror 138 responded, “Yeah, I haven’t
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The district court also asked Juror 138 about the nature of his Facebook use:
3.App.1148.
When asked why he had responded “no” to Question 77, which asked whether
he had formed any opinions with respect to guilt or punishment, see Add.525, Juror
138 responded, “I wasn’t going to make any decisions until I’d seen everything that
was presented . . . in front of me.” 3.App.1151. The court asked whether he could
render a not-guilty verdict if the evidence “wasn’t there,” and Juror 138 responded,
Juror 138 said he did not have any “views in general” on the death penalty
because he had “never really known much” about it and it “never really interested
[him] too much.” 3.App.1152. Although he indicated that he was generally in favor
of the death penalty, he thought it should depend “on the circumstances of the event”
to either” the death penalty or life imprisonment, 3.App.1154, and was “not more in
favor one way or the other; it would all depend on the outcome of everything
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138 said, “I don’t really have an opinion as of now. . . . I would have to wait.”
acknowledged that “it’s a pretty serious situation” to decide whether someone lives or
dies. 3.App.1157. But when asked whether he thought he could sentence someone to
death, he said, “I can’t really say for sure until I would know all the facts in front of
me, but . . . if that was the right decision to be made, then I would make the right
On Friday, February 27, 2015, three days before the pretrial conference and
four days before the parties were to exercise their peremptory challenges, Tsarnaev
filed motions to strike Jurors 138 and 286 for cause based on newly discovered
jurors. See Docs. 994, 1042, 1064, 1065, 1094. Tsarnaev argued that Juror 286’s
tweets were “contrary to answers given in her juror questionnaire” and “reveal[ed] a
community allegiance that is certain to color her view of the case.” Add.472. He
argued that Juror 286 should be stricken or “recalled for follow-up questioning.”
Add.475. And he argued that Juror 138 “was dishonest with the Court about
comments on Facebook and violated the Court’s instructions within just a few hours
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government argued that these motions were untimely because the defense failed to
object when Jurors 138 and 286 were provisionally qualified (on January 23 and
February 4, 2015) and filed their motions “just one or two business days before the
parties will exercise their peremptory challenges,” and that the untimeliness should
not be excused based on newly discovered evidence because the motions relied on
“social media postings . . . that predated voir dire, often by years.” Sealed.App.95, 96.
On the merits, the government argued that Juror 286’s tweets “express[ing]
gratitude to law enforcement and sympathy for the victims” did not indicate that she
“has a fixed opinion about guilt or punishment that she cannot set aside.”
Sealed.App.100. And it argued that Juror 286 “may well not have considered
on this case in a letter to the editor, in an online comment or post, or on a radio talk
show.’” Sealed.App.101. The government argued that Juror 138 did not violate the
court’s instructions by “simply reporting that Tsarnaev was ten feet in front of him at
The district court denied all of Tsarnaev’s motions to strike in an oral ruling:
We have done it with some care and taken the time to do it. And I think
the time to raise the issues was in the course of that process and not
thereafter. So I am not inclined—and will not—reopen the voir dire for
late discovery matters that could have been discovered earlier.
That said, considering the objections, I find them largely
speculative. There are various possible explanations and none of them is,
in my view, serious enough to warrant changing our provisional
qualification, and in particular, none of the issues that were raised seem
to me to suggest the presence of a bias that would be harmful to jury
impartiality in this case. They’re collateral matters about things, they
are—people close to them may have done, but none of them speak to
actual bias in the case. So we leave the roster as it is.
Add.321-22.
B. Standard of review
This Court reviews for abuse of discretion “the district court’s response to . . .
deny an evidentiary hearing. United States v. Zimny, 846 F.3d 458, 464 (1st Cir. 2017).
Because Tsarnaev requested further voir dire only with respect to Juror 286, Add.469-
75, his claim that the court should have questioned Juror 138 further is reviewed for
C. The jurors did not make material false statements that would
support challenges for cause.
“One touchstone of a fair trial is an impartial trier of fact,” and voir dire
“serves to protect that right by exposing possible biases.” McDonough Power Equip., Inc.
v. Greenwood, 464 U.S. 548, 554 (1984) (plurality opinion). “Demonstrated bias in the
responses to questions on voir dire may result in a juror being excused for cause,” and
juror’s inaccurate answer on voir dire does not automatically entitle a party to a new
trial. Instead, to obtain a new trial “a party must first demonstrate that a juror failed
to answer honestly a material question on voir dire, and then further show that a
correct response would have provided a valid basis for a challenge for cause.” Id. at
556. See Sampson v. United States, 724 F.3d 150, 164-65 (1st Cir. 2013) (“Sampson II”).
“Jurors normally are subject to excusal for cause if they are biased or if they fail
to satisfy statutory qualifications.” Sampson II, 724 F.3d at 165. “Traditionally, courts
have distinguished between two types of challenges for cause: those based on actual
bias and those based on implied bias.” United States v. Mitchell, 690 F.3d 137, 142 (3d
Cir. 2012). See United States v. Wood, 299 U.S. 123, 133 (1936) (“The bias of a
Actual bias “is typically found when a prospective juror states that he can not
equivocally as to whether he could be fair and impartial despite that view.” Fields v.
Brown, 503 F.3d 755, 767 (9th Cir. 2007) (en banc); see also United States v. Chandler, 996
F.2d 1073, 1102 (11th Cir. 1993) (actual bias can be demonstrated by “an express
admission of bias”).
McDonough, 464 U.S. at 556-57 (Blackmun, J., concurring); Smith v. Phillips, 455 U.S.
209, 222 (1982) (O’Connor, J., concurring). Some examples of the “extreme
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situations that would justify a finding of implied bias” include “a revelation that the
juror is an actual employee of the prosecuting agency, that the juror is a close relative
of one of the participants in the trial or the criminal transaction, or that the juror was
(O’Connor, J., concurring); see Amirault v. Fair, 968 F.2d 1404, 1406 (1st Cir. 1992)
(per curiam) (concluding that a juror’s blocking of a hurtful memory “does not rise to
implied bias”).
dishonesty, the five concurring justices clarified that, even where a juror gives an
honest (but mistaken) response, a party can still attempt to show actual or implied
bias. See McDonough, 464 U.S. at 556-57 (Blackmun, J., concurring) (noting that,
“regardless of whether a juror’s answer is honest or dishonest,” the district court may
circumstances, that the facts are such that bias is to be inferred”); id. at 558 (Brennan,
J., concurring in the judgment) (“Whether the juror answered a particular question on
bias.”). But three of the concurring justices agreed with the plurality that “in most
cases, the honesty or dishonesty of a juror’s response is the best initial indicator of
whether the juror in fact was impartial.” Id. at 556 (Blackmun, J., concurring). As the
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Ninth Circuit has put it, “an honest yet mistaken answer to a voir dire question rarely
amounts to a constitutional violation.” Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir.
1998) (en banc). See Sampson II, 724 F.3d at 164 n.8 (“[I]n the absence of dishonesty,
post-trial relief, if available at all, will require a more flagrant showing of juror bias.”).
“Any inquiry into potential bias in the event of juror dishonesty must be both
context specific and fact specific.” Sampson II, 724 F.3d at 165. And “[a] number of
factors may be relevant in determining whether a juror has both the capacity and the
will to decide the case solely on the evidence.” Id. at 166. These factors include “the
juror’s interpersonal relationships, the juror’s ability to separate her emotions from
her duties, the similarity between the juror’s experiences and important facts
presented at trial, the scope and severity of the juror’s dishonesty, and the juror’s
motive for lying.” Id. (citations omitted). The ultimate inquiry is whether a
“reasonable judge” would conclude “that the juror lacked the capacity and the will to
decide the case based on the evidence (and that, therefore, a valid basis for excusal for
cause existed).” Id. at 167. “[E]ven an intentionally dishonest answer is not fatal, so
long as the falsehood does not bespeak a lack of impartiality.” Dyer, 151 F.3d at 973.
“The party seeking to upset the jury’s verdict has the burden of showing the requisite
level of bias by a preponderance of the evidence.” Sampson II, 724 F.3d at 166.
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Tsarnaev argues that “Juror 286’s responses to questions about her online
activity and her experience during the manhunt were false; material; and knowingly
McDonough’s first step requires Tsarnaev to show that Juror 286 “failed to
answer honestly a material question on voir dire.” McDonough, 464 U.S. at 554. “[A]
is capable of influencing,’ the judge’s impartiality determination.” Sampson II, 724 F.3d
at 165 (quoting Neder v. United States, 527 U.S. 1, 16 (1999)). The juror’s answers to
Questions 79 and 81, which asked whether prospective jurors had publicly
commented about the case or were personally affected by the charged crimes, were
therefore material.
Contrary to Tsarnaev’s claim, however, the record does not show “knowing
dishonesty.” Br. 128. A juror may give “honest, but mistaken responses” when, “for
example, the juror misunderstands the wording of the question, fails to recall the
correct response, or is not asked a question that would necessitate disclosure of the
relevant information.” Sampson II, 724 F.3d at 164 n.8. See McDonough, 464 U.S. at
555 (noting that “jurors are not necessarily experts in English usage” and “may be
uncertain as to the meaning of terms which are relatively easily understood by lawyers
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and judges”). The possibility of honest but mistaken responses is particularly high for
understand or carefully read the questions, and there is no opportunity for them to
ask clarifying questions. As the district court observed, questionnaires have inherent
limitations, and “may result in answers that appear more clear and unambiguous than
With respect to Question 79, Juror 286 could have reasonably believed that
tweeting or retweeting about events surrounding the 2013 Boston Marathon was not
“comment[ing] on this case.” Add.553 (emphasis added). The word “case” ordinarily
refers to legal proceedings. See Oxford English Dictionary (3d ed. 2014) (defining
“case” in the legal sense as “[a] legal action”); Black’s Law Dictionary (10th ed. 2014)
(defining “case” as “[a] civil or criminal proceeding, action, suit or controversy at law
or in equity”). Because Juror 286 had not tweeted about Tsarnaev’s criminal
proceedings, she had not tweeted about the “case” in that sense. Moreover, she
might have understood the question’s reference to “a letter to the editor, in an online
formal than a tweet or retweet. Because the question did not clearly ask about tweets
or retweets relating to the bombing, as opposed to Tsarnaev’s legal case, Juror 286’s
As to Question 81, Juror 286 wrote “N/A” on her questionnaire when asked if
she, a family member, or a close friend was “personally affected by the Boston
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Marathon bombings . . . including being asked to ‘shelter in place’ on April 19, 2013.”
Add. 554. Her questionnaire indicated, however, that she lived in Boston’s
And during individual voir dire, Juror 286 explained that her home was within the
shelter-in-place area, though she was already at work outside the city by 6:00 a.m. on
April 19:
I work 20 miles out of the city. We were actually really busy. I was a
waitress at the time. I was kind of like joking with my boss I wanted to
go home. Boston was—I live in Boston, and Boston was on lockdown.
I’m, like, I have to go home. We’re on lockdown.
5.App.2016. Additionally, Juror 286’s April 19 tweet indicated that her family was
“locked down at home” while she was at work and that she eventually arrived home
and was “locked down w/them.” 25.App.11544. Although she may not have been
home for long before the shelter-in-place order was lifted at 6:00 p.m., see
12.App.5187, the questionnaire also asked not just whether she had sheltered in place,
but whether her “family member[s]” had, so her response of “N/A” was inaccurate.
But the record does not indicate “knowing dishonesty.” Tsarnaev Br. 128. If
Juror 286 had been trying to conceal the fact that she and her family sheltered in
place, she would not have volunteered that she “live[d] in Boston, and Boston was on
lockdown,” 5.App.2016, an answer that was not called for by the question asked. See
5.App.2016 (“At the restaurant, did your employees or coworkers, colleagues, talk
about the Boston Marathon bombing when it happened?”). Her openness indicates
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that, whatever the reason for her inaccurate answer in the questionnaire, she was not
trying to mislead the court. And the inaccuracy does not suggest that she suffered
new trial because fully accurate answers would not “have provided a valid basis for a
challenge for cause.” McDonough, 464 U.S. at 556. McDonough “requires a party to
offer more than the mere possibility that, given the chance, counsel might have
removed a prospective juror.” Zerka v. Green, 49 F.3d 1181, 1185 (6th Cir. 1995).
Instead, the party must show that “the juror lacked the capacity and the will to decide
the case based on the evidence.” Sampson II, 724 F.3d at 165-66.
Juror 286’s bombing-related tweets would not have justified her dismissal. Her
expressions of empathy for the victims of the “tragedy” do not indicate that she could
not be impartial. 25.App.11541. Indeed, Tsarnaev’s own counsel called the bombings
“tragic” and “heinous,” and acknowledged the “unbearable grief, loss, and pain”
19.App.8762. And, contrary to Tsarnaev’s claim, Juror 286 did not “call[ ] Tsarnaev a
‘piece of garbage.’” Br. 115, 123. Rather, she retweeted a post written by someone
else that said, “Congratulations to all of the law enforcement professionals who
worked so hard and went through hell to bring in that piece of garbage.” Br. 107.
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The focus of this tweet was more on the congratulations due to law enforcement than
on Tsarnaev. Moreover, Juror 286’s retweet was nearly two years before the trial in
this case, and it is inadequate to call into question her affirmation that she would
“[a]bsolutely” be able to apply the presumption of innocence and the burden of proof
at trial, 5.App.2009-2010, and that she would “follow the law” with respect to the
death penalty and “decide . . . by what [she had] heard in the courtroom,” 5.App.2013.
Nor would Juror 286 have been stricken for cause if she had disclosed in her
questionnaire that she had sheltered in place. Tsarnaev admits that “not every
[prospective] juror who sheltered in place was disqualified.” Br. 135. In fact, nine of
the 75 provisionally qualified jurors had sheltered in place, yet Tsarnaev moved to
strike only one of them (#98) for cause.30 See 3.SPA.1451; 2.App.630-33 (#54);
for moving to strike that juror included not only that the juror had sheltered in place
but also that the juror had indicated on his questionnaire that “he thought the
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defendant was guilty and . . . should be sentenced to death.” 2.App.950. And the
Considering that not a single prospective juror was stricken for cause on the
basis of having sheltered in place—and that Tsarnaev accepted without protest eight
who did—he cannot show that an accurate answer in Juror 286’s questionnaire would
have resulted in her being stricken for cause. This is especially true considering that
Juror 286’s questionnaire indicated that she and her children lived within the
lockdown area, and individual voir dire specifically put Tsarnaev on notice that Juror
Counsel could have inquired further, but chose not to. Moreover, the fact that Juror
286 joked with her boss about the “lockdown” as an excuse to leave work early
suggest that the shelter-in-place order did not seriously affect her ability to serve as an
showing that a correct response would have provided a valid basis for a challenge for
cause.
Tsarnaev also moved to strike prospective juror 429, a bank manager who
31
closed several area banks during the shelter-in-place order. 7.App.2810-11. But
Tsarnaev’s motion to strike also relied on the fact that the manager had attended on
the bank’s behalf a dinner honoring first responders. 7.App.2847-48. In counsel’s
view, the prospective juror’s “life has been too impacted professionally and . . . he’s
already taken part in honoring people who are likely to be prosecution witnesses.”
7.App.2848.
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2. Juror 138 was not dishonest during voir dire, and his
Facebook postings did not justify a for-cause strike.
Tsarnaev first claims that Juror 138 was dishonest during individual voir dire when he
said he had obeyed the district court’s instructions to avoid talking about the case. Br.
136. The district court asked whether Juror 138 had “been able” to “avoid any
discussion of the subject matter of the case with anybody,” and he replied, “I haven’t talked
to anybody about it.” 3.App.1146-47 (emphasis added). That was not dishonest.
Juror 138 did not discuss “the subject matter of the case” by reporting to his
Facebook friends that Tsarnaev had been “legit like ten feet infront of me . . . with his
selection itself, consistent with the court’s clarification that Juror 138 “could talk
Tsarnaev next claims (Br. 136-38) that Juror 138 “lie[d]” when he said people
Juror 138’s Facebook post about the fact that he had been called for jury service—
responded that it was “awesome” that Juror 138 might “get picked” and suggested
that Juror 138 “[p]lay the part so [he could] get on the jury then send [Tsarnaev] to jail
in the context of flippant and joking remarks by other commenters, and which Juror
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138 never endorsed—quickly ended after Juror 138 indicated he would “rather not
take [his] chances” and another person warned that “should you get picked any
mention of anything can get you booted or call for mistrial.” 25.App.11537. It is not
clear that these passing comments about Juror 138’s possible jury service amounted to
comments “about this trial” that fell within the court’s question. 3.App.1148.
At the very least, the evidence does not show that any misstatement rose to the
level of knowing dishonesty. In his questionnaire, Juror 138 disclosed that some
people “were jealous” of him being summoned for jury duty and others told him
“[g]ood [l]uck.” Add.524. During voir dire, he explained that these comments came
from his extended relatives over dinner around Thanksgiving and that he “really
wasn’t too interested in talking about it” with them. 3.App.1158-60. His disclosure
of his family’s comments indicates that he was not trying to hide other people’s
In any event, even if Juror 138 had disclosed these Facebook comments, which
were publicly available to the defense, they would not have justified dismissal for
cause because they do not indicate that he was prejudiced. True, one person
recommended that Juror 138 “send [Tsarnaev] to jail where he will be taken care of,”
and another said, “If you’re really on jury duty, this guy[’]s got no shot in hell.”
25.App.11537. But two flippant remarks by Juror 138’s Facebook connections is far
from adequate to show that Juror 138 had a disqualifying bias. Juror 138 did not
express those views, nor did he control what comments people would make on his
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post.32 The district court found that the facts did not “suggest the presence of a bias
that would be harmful to jury impartiality in this case.” Add.322. Indeed, Juror 138
stated that he would not “make any decisions” about guilt until he had “seen
everything that was presented,” 3.App.1151, and that his views on the death penalty
Tsarnaev also argues (Br. 140-41) that Juror 138’s “refusal to follow the Court’s
assumption that the juror disobeyed the court’s instructions is incorrect. In its
preliminary instructions, the court said, “You may tell others that you may be a juror
in the case,” but “you are not to discuss anything else, or allow anyone to discuss with
chosen as a juror was consistent with the court’s instructions. And although it might
have been best not to mention that he was “like ten feet” from Tsarnaev and his
lawyers, this hardly counts as “discuss[ing] th[e] case,” 1.App.182, and certainly would
not have justified removal for cause. Moreover, Juror 138 told his friends that he
could not “say much else about it” because “that’s against the rules,” 25.App.11537,
Not all Facebook “friends” are “friends in the traditional sense.” Lane v.
32
Facebook, Inc., 696 F.3d 811, 826 (9th Cir. 2012) (Kleinfeld, J., dissenting). “Some are
more in the nature of contacts, or acquaintances, or people we think may want to see
what we post.” Id.
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Contrary to Tsarnaev’s claim, Juror 138 did not “disobey[ ] a pellucid Court
order” or “solicit[ ] others to ‘communicate about this case’ with him.” Br. 141-42.
He simply followed up on a Facebook thread that he had started before the court’s
preliminary instructions and indicated that he was not allowed to say much. And even
if his posts could be construed as violating the court’s instructions, they would not
have justified dismissal for cause. See United States v. Fumo, 655 F.3d 288, 305 (3d Cir.
2011) (finding no prejudice where juror violated court’s instructions and posted on
Tsarnaev also points to several additional publicly available social media posts
by Jurors 286 and 138 after trial, Br. 117-18, none of which support his claim of juror
bias. A few hours after the jury rendered its penalty-phase verdict on May 15, 2015—
and the court instructed jurors that they were “now free to talk with [their] family and
wrap,” 25.App.11622. Some of his Facebook friends expressed agreement with the
verdict, such as saying, “Great job [Juror 138]! Thanks for serving up some justice.”
25.App.11623. On the morning of Tsarnaev’s June 24, 2015 sentencing, Juror 138
posted that he was “[b]ack to boston today.... see the end of this...for now anyway.”
25.App.11624. That same day, Juror 286 changed her Facebook profile picture to a
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“BOSTON STRONG” banner, but the picture said nothing about Tsarnaev or
serving on the jury. 25.App.11625. Juror 138 later posted, “At[ ]least they finally
moved that trash out of the state and making their way to the dungeon where he will
These Facebook posts, all of which took place after the jury rendered its
verdict, do not support Tsarnaev’s claim of juror bias. They do not suggest that
Jurors 286 or 138 were dishonest during voir dire or harbored biases against him prior
to trial that they were unable to set aside. They came only after the jurors had sat
through trial and had seen the full picture of the horror that Tsarnaev caused. At
most, these comments indicate that the jurors remained convinced at the time of
Tsarnaev’s sentencing that he deserved the death penalty. That is neither surprising
nor problematic. Cf. Liteky v. United States, 510 U.S. 540, 550-51 (1994) (noting that a
trial judge “may, upon completion of the evidence, be exceedingly ill disposed
person,” but that “the judge is not thereby recusable for bias or prejudice, since his
knowledge and the opinion it produced were properly and necessarily acquired in the
D. The district court did not abuse its discretion or plainly err by
failing to conduct a more extensive inquiry.
The district court did not abuse its discretion (as to Juror 286) or plainly err (as
to Juror 138) by failing to conduct a more extensive inquiry into the claim of juror
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misconduct, the district court must investigate it.” Zimny, 846 F.3d at 464. “[T]he
court nonetheless has broad discretion to determine the type of investigation which
must be mounted.” United States v. Rodriguez, 675 F.3d 48, 58 (1st Cir. 2012)
(quotations omitted). “The trial judge may, but need not, convene a fullblown
evidentiary hearing.” Id. (quoting United States v. Boylan, 898 F.2d 230, 258 (1st Cir.
for ascertaining whether misconduct actually occurred and if so, whether it was
prejudicial.’” Id. (quoting Boylan, 898 F.2d at 258). The ultimate inquiry is
“reasonableness: did the trial court fashion, and then even-handedly implement, a
had occurred?” United States v. Paniagua-Ramos, 251 F.3d 242, 249-50 (1st Cir. 2001).
Tsarnaev argues that the district court’s ruling “deserves no deference” because
the court “undertook no inquiry and made no specific findings at all.” Br. 143-44.
district court “reviewed the jury questionnaires,” “reviewed the transcripts,” and
That the court believed no further hearing was necessary does not mean its
Tsarnaev contends that, in any event, the district court abused its discretion by
resting its decision to deny a hearing “on multiple legal errors.” Br. 144. First, he
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asserts that the court “was incapable, as a matter of law, of determining that [Juror
286] was impartial without knowing more.” Id. Contrary to his contention, this
Court’s decision in French does not require a district court always to determine “why [a
juror] answered as she did.” Id. at 145 (quoting United States v. French, 904 F.3d 111,
118 (1st Cir. 2018), cert. denied, 139 S. Ct. 949 (2019)). French addressed a juror’s failure
trafficker. French, 904 F.3d at 114-15. The Court said, “we do not see how a court
can say whether the juror in this instance was unduly biased without knowing why she
answered as she did.” Id. at 118. But French did not establish a categorical rule. And
the district court here concluded that, although there were “various possible
the issues that were raised seem to me to suggest the presence of a bias.” Add.322.
Next, Tsarnaev argues that the district court committed legal error by
“ignor[ing] the ‘similarity’ between Juror 286’s experience during the lockdown and
‘important facts presented at trial,”’ as well as “the ‘scope and severity’ of both jurors’
dishonesty.” Br. 145 (quoting Sampson II, 724 F.3d at 166). He also contends that the
bias.’” Id. (quoting Sampson II, 724 F.3d at 167). These claims are simply
disagreements with the court’s ultimate resolution of his factual claims, not legal
249, and the district court’s actions were reasonable under the circumstances. The
district court gave the parties seven days to review the jury questionnaires once they
were completed. Sealed.App.97. The court then conducted 21 days of individual voir
dire during which the defense had ample opportunity to ask about publicly available
social media posts and to make oral motions to strike. Yet Tsarnaev waited until the
Friday before the pretrial conference to move to strike Jurors 138 and 286. The
challenge to Juror 138 was based on fairly innocuous postings about being called for
jury duty. And the challenge to Juror 286 was based on an inaccuracy in her
questionnaire about whether her family sheltered in place—a fact that she volunteered
on voir dire and that Tsarnaev did not treat as a ground for disqualifying other
prospective jurors. The district court properly concluded that these challenges were
untimely, and the court did not abuse its discretion by denying further voir dire after
reviewing the record and concluding that none of the alleged misstatements
If this Court were to conclude that the district court’s inquiry was inadequate,
33
remand would be the appropriate remedy. As this Court observed in French, “we are
aware of no case in which, faced with a potentially biased juror and the need to
investigate further, an appellate court has ordered a new trial without first permitting
the district court to investigate.” French, 904 F.3d at 120.
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juror (Juror 355) for cause. Br. 161-81. The district court acted well within its
discretion in concluding that Juror 355’s opposition to the death penalty substantially
impaired his ability to serve as a juror in this case. Juror 355 gave hesitant and
carefully hedged answers about the death penalty, refused to answer hypothetical
questions, and was unable to think of any category of crimes beyond genocide where
A. Background
Juror 355 had worked as a criminal defense attorney for 22 years, most recently
for the Committee for Public Counsel Services, Massachusetts’s public defender
agency. 6.App.2442, 2454. When asked on his questionnaire about his views of the
being “a belief that the death penalty should never be imposed” and 10 being a belief
that it should be imposed for all cases of “intentional murder”), Juror 355 circled the
read, “I am opposed to the death penalty but I could vote to impose it if I believed
that the facts and the law in a particular case called for it.” Sealed.Add.71. In
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Tsarnaev guilty and you decided that the death penalty was the appropriate
punishment for Mr. Tsarnaev, could you conscientiously vote for the death penalty?”
Sealed.Add.72. Juror 355 checked the box for “I am not sure,” and then wrote,
Sealed.Add.72.
During individual voir dire, Juror 355 said he did not think his work as a public
defender would affect his impartiality. 6.App.2442-43. When asked about his views
on the death penalty, he said, “I mean, if I was asked to vote on it, I would probably
marked “2” on a scale of 1 to 10, he explained, “[W]hen I found out I was going to be
in this pool, I did a lot of soul-searching, and I came to the conclusion that because I
believe it should be in the most rarest of situations, that’s why I’m down at that end
court asked, “So you can envision there could be a case where you could vote in favor
of the death penalty?” 6.App.2448. Juror 355 said, “After a lot of thought and soul-
The district court asked Juror 355 about his statement that he could not
“possibly prejudge” Tsarnaev’s guilt, explaining that what “the question may have
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been getting at” was whether “if you had intellectually concluded the death penalty
was appropriate, could you actually vote for it.” 6.App.2449. Juror 355 responded, “I
question is assuming that [Tsarnaev is] guilty and that you found that the death
problem is that I’m disturbed that I have to assume his guilt at this stage without
hearing anything and to prejudge the particular case I’m asked to come and judge. I
don’t know that I really want to exercise that fantasy.” 6.App.2450. The district court
then stepped in to “generalize” the question, asking, “If you were sitting on a death
penalty case . . . and the defendant is found guilty of a capital crime, and you
concluded that for that defendant and for that crime the death penalty was an
6.App.2450-51. Juror 355 replied, “If, after hearing the Court’s instructions, and if I
believed it . . . fit into one of those rare cases where I believed the death penalty
should be imposed, having understood the law as given to me, then, yes, I could vote
When asked whether he could “imagine any case that [he] would think is
appropriate for the death penalty,” Juror 355 said, “I think Slobodan Milosevic was
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close, if not a prime example.”34 6.App.2451. The prosecutor asked, “So genocide?”
6.App.2451. Juror 355 said, “Genocide’s a good starting point,” but “I have not come
When asked by the defense whether he could “actually vote to impose” the death
penalty in an appropriate case, Juror 355 said, “I think I could.” 6.App.2459. When
The government subsequently moved to strike Juror 355 “for his bias” based
on his role as a criminal defense attorney and “also for his death penalty answers.”
6.App.2500. The prosecution argued that Juror 355 was “substantially impaired” in
his ability to impose the death penalty because the “only time . . . he could think that
he would impose the death penalty could be in the case of genocide.” 6.App.2502-03.
The defense opposed the motion, pointing out that Juror 355 said he could “make a
decision in a given set of facts” and impose the death penalty. 6.App.2504.
court explained that Juror 355’s “career as a criminal defense lawyer wouldn’t by itself
6.App.2505. Rather, the court based its decision on Juror 355’s “answers to the
question” and the court’s “sense of him.” 6.App.2505. In the court’s view, Juror 355
was not adequately “open to the possibility of the death penalty.” 6.App.2505. The
34
18.SPA.9692.
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court noted the “genocide issue” and concluded that “the zone of possibility is so
narrow” that “I think you would have to regard [Juror 355] as substantially impaired.”
6.App.2505. The court said, “[I]n the end, it was not convincing to me that he was
B. Standard of review
This Court “review[s] a trial court’s for-cause dismissal of a juror for abuse of
discretion.” United States v. Sampson, 486 F.3d 13, 39 (1st Cir. 2007) (“Sampson I”). As
In Witherspoon v. Illinois, 391 U.S. 510 (1968), the Supreme Court determined
that jurors in a capital case must be willing to “consider returning a verdict of death,”
and that jurors who are invariably “opposed to capital punishment” may therefore be
excused for cause. Id. at 518, 520. The Court held, however, that a capital
“simply because they voiced general objections to the death penalty or expressed
conscientious or religious scruples against its infliction.” Id. at 522. As the Court
subsequently explained, the relevant inquiry is “whether the juror’s views would
with his instructions and his oath.” Wainwright v. Witt, 469 U.S. 412, 424 (1985)
(quotations omitted). This standard “does not require that a juror’s bias be proved
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with ‘unmistakable clarity.’” Id. at 424. Instead, a court may excuse a juror for cause
“where the trial judge is left with the definite impression that a prospective juror
would be unable to faithfully and impartially apply the law.” Id. at 425-26. The
review, but requires vacating the death sentence. Gray v. Mississippi, 481 U.S. 648, 667-
deference to the trial court,” which “is in a position to assess the demeanor of the
venire, and of the individuals who compose it, a factor of critical importance in
assessing the attitude and qualifications of potential jurors.” Uttecht v. Brown, 551 U.S.
1, 7, 9 (2007). See Witt, 469 U.S. at 428 (noting that the trial court’s judgment as to
credibility that are peculiarly within a trial judge’s province”). Even when there is a
“lack of clarity in the printed record . . . , there will be situations where the trial judge
is left with the definite impression that a prospective juror would be unable to
faithfully and impartially apply the law.” Id. at 425-26. “[T]his is why deference must
be paid to the trial judge who sees and hears the juror.” Id. at 426.
The case for deference is particularly strong in the Witherspoon context because
the risk of actual constitutional harm flowing from a single Witherspoon error is low.
Ordinarily, a claim of juror partiality focuses on “the jurors who ultimately sat,” not
on those who were excluded. Ross v. Oklahoma, 487 U.S. 81, 86 (1988). But
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Witherspoon reasoned that the government should not be allowed to use for-cause
strikes to “[c]ull[ ] all who harbor doubts about the wisdom of capital punishment”
from the jury. Witherspoon, 391 U.S. at 520. That is because the jury in capital cases
should “express the conscience of the community on the ultimate question of life or
But the erroneous exclusion of a single juror under Witherspoon does not suggest
that the defendant has been deprived of an impartial jury. Assuming an otherwise
proper jury selection process, an equally qualified juror will take the excluded juror’s
place. And where a defendant is “convicted by a jury on which no biased juror sat, he
has not been deprived of any . . . constitutional right.” See United States v. Martinez-
Salazar, 528 U.S. 304, 307 (2000). Nevertheless, the Supreme Court has held that
Witherspoon errors are excepted from the harmless-error rule and result in automatic
reversal. Gray, 481 U.S. at 667-68 (plurality opinion); id. at 669-70 (Powell, J.,
concurring in part and concurring in the judgment). But that is because the existence
biased jury. See Gray, 481 U.S. at 665-66 (majority opinion), 668 (plurality opinion);
Ross, 487 U.S. at 87-88. Because the institutional cost of finding a single Witherspoon
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deference.” Br. 174. He first points (Br. 174) to Uttecht’s statement that “[t]he need
to defer to the trial court’s ability to perceive jurors’ demeanor does not foreclose the
possibility that a reviewing court may reverse the trial court’s decision where the
record discloses no basis for a finding of substantial impairment.” Uttecht, 551 U.S. at
20. But Uttecht went on to say that “where, as here, there is lengthy questioning of a
prospective juror and the trial court has supervised a diligent and thoughtful voir dire,
the trial court has broad discretion.” Id. Far from the situation contemplated in
Uttecht—where there is no record support for the trial court’s decision—this case
involved “lengthy questioning” as part of a “diligent and thoughtful voir dire.” Id. The
law, and are internally inconsistent.” Br. 176 (quoting Gray, 481 U.S. at 661 n.10). He
argues that the district court’s ruling in this case “depended on the erroneous legal
premise that Juror 355, having given one example of a death-appropriate case, had to
The district court did not misapply the law. In Gray, the trial court struck a
juror who was “clearly qualified” under Witherspoon in an attempt to remedy its
previous failure to strike several jurors who were not qualified. Gray, 481 U.S. at 654-
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55, 659 (quotations omitted). The Court gave no deference to the trial court’s
decision, which was clearly at odds with Witherspoon and Witt. As the Court observed,
“we cannot condone the ‘correction’ of one error by the commitment of another.” Id.
at 663. Here, by contrast, the district court did not “misappl[y] federal law.” Id. at
661 n.10. The court applied the correct standard and found as a matter of fact that
Juror 355 did not meet that standard because he was impaired in his ability to impose
court inquiring into the general categories of cases in which a person opposed to the
death penalty could nevertheless vote for it. In Uttecht, the defense asked the
prospective juror for examples of the “severe situations” in which the death penalty
was appropriate. Uttecht, 551 U.S. at 14. The juror mentioned situations where the
informed that the defendant would never be released, the juror was unable to say
whether he could impose the death penalty. Id. at 15. Although the prospective juror
eventually stated that he could consider the death penalty and follow the law, id., the
Supreme Court concluded that “the trial court acted well within its discretion in
Consistent with Uttecht, the courts of appeals have regularly considered (and
the death penalty beyond narrow classes of cases as evidence that the juror would be
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incapable of fairly considering the death penalty. See United States v. Rodriguez, 581 F.3d
775, 793 (8th Cir. 2009); United States v. Fell, 531 F.3d 197, 211 (2d Cir. 2008); United
States v. Fields, 516 F.3d 923, 937 (10th Cir. 2008); Morales v. Mitchell, 507 F.3d 916, 942
(6th Cir. 2007); United States v. Moore, 149 F.3d 773, 780 (8th Cir. 1998).35 Thus, the
district court here did not apply “an erroneous legal premise” when it considered
Juror 355’s inability to think of cases beyond genocide in which he could impose the
death penalty.
Tsarnaev also contends (Br. 167, 177) that the district court later changed its
mind when it said, “I think it’s a mistake to try to get people to try to characterize the
circumstances that they think would justify [the death penalty] or not.” 9.App.3889.
The district court made this comment when it denied the government’s motion to
strike Juror 671 for cause. 9.App.3886-89. Juror 671 was opposed to the death
35
Tsarnaev cites several cases that, he says, “approve[d] courts’ refusal to ask
prospective jurors for examples.” Br. 177. But those cases are inapposite. In United
States v. Caro, 597 F.3d 608, 614 (4th Cir. 2010), the district court declined to ask
“what kind of case does or does not deserve the death penalty,” but the defendant did
not challenge on appeal the omission of that specific part of his proposed question.
In Spivey v. Head, 207 F.3d 1263, 1273 n.8 (11th Cir. 2000), the trial court did not
permit the defense to ask, “In what type of cases do you think the death penalty
would be appropriate?” But it did allow other questions such as, “Do you feel the
death penalty should be limited to certain types of crimes?” Id. Given the “breadth
of the questions permitted,” the Eleventh Circuit found “the voir dire constitutionally
adequate.” Id. And in McQueen v. Scroggy, 99 F.3d 1302, 1329 (6th Cir. 1996), overruled
on other grounds by In re Abdur’Raham, 392 F.3d 174 (6th Cir. 2004), the district court
disallowed the question, “In what kinds of cases do you think the death penalty is
warranted?” But it allowed questions that were “equally illuminating.” Id. at 1330.
The fact that courts may have discretion in certain circumstances to refuse to ask such
questions does not mean that the district court was required to do so here.
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penalty but mentioned that “some crimes are just so heinous that, you know, maybe
the death penalty would be appropriate.” 9.App.3855. When the government asked
whether he was referring to someone “like Hitler,” the district court sustained a
defense objection to the question “as phrased.” 9.App.3855. But the court allowed
the rephrased question: “When you say ‘some crimes are so heinous,’ say more about
that. What do you mean?” 9.App.3855. The juror replied that he meant
concluding that Juror 671 was qualified, the court specifically mentioned the juror’s
openness to the death penalty for “unbelievably cruel, cold-blooded murder on a big
scale.” 9.App.3889.
The context therefore makes clear that the district court did not think it was
categorically a “mistake” to ask about broad categories of crimes for which the person
would be able to impose the death penalty. See 9.App.3872, 3875 (asking similar
questions of another juror). And, at the very least, the court’s suggestion that such
questions are “mistake[n]” does not establish a legal error sufficient to make deference
inappropriate.
Nor is Tsarnaev correct that the district court’s findings were “internally
requiring those jurors to provide examples of the circumstances in which they would
deem a sentence of life imprisonment appropriate.” Br. 178. Tsarnaev cites the
example of Prospective Juror 260, who was generally in favor of the death penalty
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favor”), but could not immediately come up with circumstances where the death
penalty would not be appropriate. Br. 178-79. Tsarnaev argues that “[i]t was illogical
and inequitable to grant the government’s cause challenge to Juror 355 because he
suggested one non-exclusive example, while denying the defense’s cause challenge to
Tsarnaev ignores important differences between Jurors 355 and 260. Juror 355
It was appropriate to ask what those situations were to ensure that Juror 355 was not
merely thinking of extreme examples like Hitler and Stalin, see Antwine v. Delo, 54 F.3d
1357, 1369 (8th Cir. 1995), or where the defendant himself wanted to die, see Uttecht,
Juror 260, by contrast, did not believe that capital punishment should be
imposed in all but the “rarest of situations.” Instead, he said it was “[s]ometimes
appropriate” and he was “not for or against the death penalty” and could vote for
whatever was “called for by the facts and the law in the case.” 13.SPA.7107-08. His
inability on the spot to think of situations where the death penalty “would not be
appropriate” for someone “convicted of willful murder” did not raise the concern that
he would apply the death penalty in every case. 5.App.1932. As he explained, “The
outline you gave of how to make the decision of aggravating and mitigating factors
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seems a reasonable one to me, and I would want to hear what, in fact, they have
done.” 5.App.1933. This was a far more open-minded attitude than that displayed by
Juror 355.
355, who had serious reservations about the death penalty, and Juror 260, who said
the death penalty was “[s]ometimes appropriate,” does not merit giving no deference.
In almost any capital case, a party could argue that the exclusion of one juror is
inconsistent with the inclusion of another. But this is nothing like the situation in
Gray, where the trial court denied the state’s for-cause challenges to five jurors who
were “unequivocally opposed” to the death penalty, yet struck a juror who said she
could vote for the death penalty. Gray, 481 U.S. at 653 n.5, 655 n.7. Gray’s observation
that “deference is inappropriate where . . . the trial court’s findings are . . . internally
inconsistent,” Gray, 481 U.S. at 661 n.10, does not apply to a case like this one, where
the defendant simply takes issue with the district court’s factual findings regarding
specific jurors.
Tsarnaev does not assert that he could prevail under the deferential standard
that applies here, nor could he. Juror 355’s answers in his questionnaire and during
individual voir dire evinced significant hesitation regarding the death penalty. He said
could “envision” a case where he “could vote in favor of the death penalty,” he said,
added). This hesitancy alone provides significant support for the district court’s for-
cause strike.
Tsarnaev claims that Juror 355 showed “no equivocation” and “was ‘confident’
in his ability” to impose the death penalty. Br. 172-73 (quoting 6.App.2459). He is
6.App.2448, and it was only when Tsarnaev’s counsel was trying to rehabilitate him
that he indicated he was “pretty confident” of his answer that he thought he could
ability to impose the death penalty do not suffice to preclude the prosecution from
striking for cause a juror whose responses, taken together, indicate a lack of such
ability . . . .” Morales, 507 F.3d at 941. See Uttecht, 551 U.S. at 18 (“Juror Z’s
assurances that he would consider imposing the death penalty and would follow the
law do not overcome the reasonable inference from his other statements that in fact
Moreover, when the court and the government asked hypothetical questions
that went to the crux of the Witherspoon inquiry, Juror 355 resisted answering them.
The questionnaire asked whether he could conscientiously vote for the death penalty
“[i]f [he] found Mr. Tsarnaev guilty and . . . decided that the death penalty was the
district court asked whether he could “actually vote for” the death penalty “if [he] had
intellectually concluded the death penalty was appropriate,” he said it would be “very
And when the prosecutor pointed out that “[t]he question is assuming that he’s guilty
and that you found the death penalty was appropriate,” Juror 355 responded, “I’m
disturbed that I have to assume his guilt at this stage” and said he did not “want to
As a long-time criminal defense attorney, Juror 355 clearly knew how to ask
them. It was only when the district court rephrased the question without reference to
Tsarnaev that Juror 355 finally said he could “vote to impose the death penalty” if he
“believed it . . . fit into one of those rare cases where [he] believed the death penalty
should be imposed.” 6.App.2451. Even this answer was carefully hedged, if not
tautological. In light of Juror 355’s resistance to the questioning, the district court
could reasonably question whether he “was going to be truly open” to imposing the
It was also reasonable for the district court to consider Juror 355’s inability to
identify any cases beyond genocide in which he considered the death penalty
“misunderst[and] Juror 355’s answers” or “f[i]nd, contrary to what Juror 355 actually
said, that he would entertain the possibility of capital punishment only in cases
involving genocide.” Br. 162. The court knew from Juror 355’s answers that
genocide was a “starting point,” not necessarily the “ending point.” Br. 161, 176. But
the fact remains that Juror 355 was unable to give any other examples. And the
court’s observation that Juror 355’s “zone of possibility” was “narrow,” 6.App.2505,
is supported by Juror 355’s repeated statements that the death penalty is appropriate
Other courts of appeals have upheld the exclusion of jurors who, like Juror
355, are unable to identify situations in which they could impose the death penalty
beyond particularly severe crimes such as genocide. See Rodriguez, 581 F.3d at 793
F.3d at 211 (“‘unforgivable type[s] of war crimes’ like genocide or mass murder”);
Fields, 516 F.3d at 937 (“genocide; torture; and willful killing of children”); Morales,
507 F.3d at 942 (“mass murder or torture”). The district court acted well within its
Finally, the district court was able to observe Juror 355’s demeanor and
specifically noted that “the value of this process is you can sit here five feet away”
from the prospective juror. 6.App.2505. In light of the “deference” that “must be
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paid to the trial judge who sees and hears the juror,” Witt, 469 U.S. at 426, Tsarnaev
Tsarnaev makes a few additional assertions that are beside the point. He first
claims that “the government took full advantage of the law to purge the venire of
people who . . . opposed capital punishment,” pointing out that the district court
government “has a strong interest in having jurors who are able to apply capital
punishment within the framework [the] law prescribes,” Uttecht, 551 U.S. at 9, and
there is nothing wrong with the government making (and the district court sustaining)
valid motions to strike. The fact that the court sustained 27 government motions is
hardly surprising considering that the court interviewed 256 prospective jurors in a
punishment.” Br. 179. And Tsarnaev does not assert that any of these other
Tsarnaev also claims that the government “used 18 of its 20 peremptory strikes
on jurors who had expressed some opposition to, or uncertainty regarding, imposing
the death penalty.” Br. 179-80. But he does not explain how that is improper. The
government has the “right to remove peremptorily jurors whom [it] believes may not
Clause, parties should be free to exercise their peremptory strikes for any reason, or
no reason at all.” Hernandez v. New York, 500 U.S. 352, 374 (1991) (O’Connor, J.,
concurring in the judgment). See Holland v. Illinois, 493 U.S. 474, 481 (1990) (noting
that each party may “use peremptory challenges to eliminate prospective jurors
belonging to groups it believes would unduly favor the other side”). And, of course,
Tsarnaev had the same opportunity “to remove jurors he believe[d] may be
Unsurprisingly, then, the jury consisted mostly of people with neutral views on
the death penalty, with ten of the 12 seated jurors indicating they were “not for or
against the death penalty,” Add.557; 26.App.11707, 11735, 11763, 11791, 11819,
11847, 11875, 11903, 11959, and two indicating they were “in favor of the death
penalty but . . . could vote for a sentence of life imprisonment . . . if [they] believed
that sentence was called for by the facts and the law in the case,” Add.529;
(quoting Witherspoon, 391 U.S. at 520-21). And he cites no authority suggesting that
Similarly, five of the six alternates said they were “not for or against” the
36
death penalty, 26.App.11987, 12015, 12071, 12099, 12127, and one indicated she was
“opposed to the death penalty but . . . could vote to impose it,” 26.App.12043.
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questions essential to seating impartial jurors.” Br. 182 (capitalization omitted). First,
he claims that the district court “misapplied” Morgan v. Illinois, 504 U.S. 719 (1992), by
not allowing him to “ask venirepersons whether they could take into account
mitigating evidence and consider a sentence of life imprisonment not just in the
abstract, but in light of the specific allegations in his case.” Br. 182. Second, he
claims that the court erred by denying his request “to ask prospective jurors what they
had seen, read, or heard about his case.” Br. 183. Neither argument has merit.
Morgan does not require fact-specific questioning, and, in any event, the potential
jurors were aware of the critical aggravating facts in this case when they answered the
general Morgan questions. Nor does this Court’s precedent require detailed inquiry
into what prospective jurors have seen and heard about a case. In fact, the Supreme
Court has specifically rejected the claim that such an inquiry is required. Mu’Min v.
Virginia, 500 U.S. 415, 417 (1991). The district court did not abuse its discretion.
A. Background
Before voir dire, the parties submitted a joint proposed questionnaire that
asked whether prospective jurors “would vote for [the death penalty] in every case in
which the person charged is eligible for a death sentence.” 24.App.11395. The
proposed questionnaire also asked, “If you were on the jury and you decided that life
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imprisonment without possibility of release was the appropriate punishment for Mr.
Tsarnaev, could you vote for life imprisonment without possibility of release?”
24.App.11397. The district court approved slight variations of these questions, which
[After No. 100]: State whether you agree or disagree with the following
statements:
Add.432. Tsarnaev argued that this question was useful to “probe for a common
form of bias—the belief that the death penalty should always or automatically be
to ask prospective jurors whether they could consider life imprisonment with respect
to each of the “charged offenses and the statutory aggravating factors that the
he suggested that jurors should be asked whether they could consider life
imprisonment for a person charged with using a weapon of mass destruction resulting
in death where (a) “[t]he defendant committed the offense in an especially heinous,
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cruel, or depraved manner,” (b) “the killings were committed after substantial
terrorism,” (c) “the defendant intentionally killed or attempted to kill more than one
person in a single criminal episode,” or (d) “one of the victims was particularly
decision before they have heard any mitigation evidence or been told that the law
questions, see Richmond v. Polk, 375 F.3d 309, 329-30 (4th Cir. 2004)—are “certain to
confuse and mislead venire members about their duty to weigh and consider the
evidence.” 24.App.11410.
questionnaire, concluding that “the questionnaire is too clumsy” and that “those kinds
of issues, I think, can be addressed in voir dire.” Add.319. Tsarnaev then filed
whether jurors could consider life imprisonment in light of the particular offenses and
aggravating factors in this case. See Add.448 (“us[ing] a weapon of mass destruction
terrorism that killed multiple victims”); id. (“kill[ing] a child by deliberately using a
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weapon of mass destruction”); 454 (“using a weapon of mass destruction to carry out
an intentional killing”); 455 (“assume for the moment that . . . the defendant engaged
and tried to kill multiple victims, and he killed a child”); 456 (“intentionally
The district court denied Tsarnaev’s repeated requests to ask these and similar
questions. See Add.108, 116, 123, 127-29, 134, 142-44. See also Add.147-49 (noting
Add.120-21.
asking, “What did you know about the facts of this case before you came to court
today (if anything)?” 24.App.11391. The district court said the question “might get
very interesting answers,” but could “cause trouble because it will be so unfocused”
and would likely yield “unmanageable data.” Add.304-05. The court decided to “do
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without” the question. Add.307. But the court included what became Question 77,
which asked whether, “[a]s a result of what [they] ha[d] seen or read in the news
media,” prospective jurors had already “formed an opinion” that Tsarnaev was
“guilty” or “not guilty” and “should” or “should not” receive the death penalty. See
Add.525.
Before individual voir dire, Tsarnaev proposed questions that asked for details
about prospective jurors’ media exposure, such as, “What stands out in your mind
from everything you have heard, read or seen about the Boston Marathon bombing
and the events the followed it?” and “How did you first learn about the bombing at
the Marathon?” Add.450. See id. (suggesting follow-up questions asking what jurors
remembered about “how the bombings occurred,” “the people who are supposed to
have carried it out,” “any of the bombing victims who died,” “any of the victims who
were hurt but survived,” “the MIT police officer who was killed several days later,”
“the defendant, Dzhokhar Tsarnaev,” and “any members of Mr. Tsarnaev’s family”).
The district court denied Tsarnaev’s request for these specific questions, noting
that “[w]e have detailed answers in the questionnaire concerning . . . exposure to the
media” and that “digging for details from someone who hasn’t prepared by spending
time reflecting and recalling all of that will not likely yield reliable answers.” Add.115.
The court also denied Tsarnaev’s subsequent requests to inquire into the details of
prospective jurors’ media exposure. See, e.g., Add.129, 134, 138, 142-44. The court
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explained that “detailed questioning about what the juror thinks he or she knows
about the events . . . places the wrong emphasis for the juror.” Add.143.
B. Standard of review
“This court reviews a district court’s conduct of voir dire for abuse of
discretion . . . .” United States v. Casanova, 886 F.3d 55, 60 (1st Cir. 2018). Even in
capital cases, “the trial court retains great latitude in deciding what questions should
C. The district court did not abuse its discretion under Morgan v.
Illinois by not allowing case-specific voir dire questions.
In Morgan v. Illinois, the Supreme Court held that a juror “who will automatically
vote for the death penalty in every case” is not impartial and must be removed for
cause. 504 U.S. at 729. Morgan also concluded that “general fairness and ‘follow the
law’ questions” are insufficient to “detect those in the venire who automatically would
vote for the death penalty.” Id. at 734. Instead, a defendant in a capital case is
the terminating issue of his trial, that being whether to impose the death penalty.” Id.
at 736. Morgan held that the defendant should have been able to ask the prospective
jurors the following question: “If you found [the defendant] guilty, would you
automatically vote to impose the death penalty no matter what the facts are?” Id. at
723. Phrased another way, the relevant question is whether the juror would
“automatically vote for the death penalty without regard to [whether] the mitigating
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(emphasis omitted).
Although Morgan requires the district court to permit an inquiry into whether
prospective jurors would “automatically” vote to impose the death penalty no matter
the facts, the courts of appeals agree that “Morgan does not compel a trial court to
allow questions about how a potential juror would vote if given specific examples of
aggravating or mitigating circumstances.” Hodges v. Colson, 727 F.3d 517, 528 (6th Cir.
2013) (holding that venire need not be informed of defendant’s prior murder
conviction). See Richmond v. Polk, 375 F.3d 309, 330 (4th Cir. 2004) (same); United
States v. McVeigh, 153 F.3d 1166, 1207 (10th Cir. 1998) (no abuse of discretion where
district court excluded questions about whether jurors believed death was the “only
overruled on other grounds by Hooks v. Ward, 184 F.3d 1206 (10th Cir. 1999).
Tsarnaev points to three federal district court decisions that have “permitted
circumstances.” Br. 206. These decisions are not precedential, and they do not hold
that Morgan requires case-specific questions. See United States v. Johnson, 366 F. Supp.
2d 822, 849 (N.D. Iowa 2005) (“Morgan does not require ‘case-specific’ questions
during voir dire of prospective jurors in capital cases, but neither does Morgan bar such
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questions . . . .”); United States v. Fell, 372 F. Supp. 2d 766, 769-70 (D. Vt. 2005)
(noting that “appellate courts usually address whether a trial court was required to ask
a particular question” and that cases like McVeigh do “not hold[ ] that a trial court may
never ask such questions”); United States v. Burgos Montes, 2012 WL 1190191 (D.P.R.
Apr. 7, 2012) (following Fell). Instead, these district courts exercised their “extremely
broad discretion” to allow case-specific questions during voir dire. See Fell, 372 F.
Supp. 2d at 769-70 (quotations omitted). The fact that some trial courts, exercising
their broad discretion in managing voir dire, have permitted such questions does not
support Tsarnaev’s contention that Morgan “entitled” him to ask those questions in
Tsarnaev cites a number of state cases that have found an abuse of discretion
where a state trial court prevented voir dire inquiry into certain salient facts. Br. 206.
One of those cases, Ellington v. State, 735 S.E.2d 736 (Ga. 2012), was decided on state-
law grounds. Id. at 753-55 (holding that state statute required the trial court to inform
the venire that defendant murdered his two-year-old twin sons). The others cited
Morgan and the U.S. Constitution, but primarily relied on state-court precedent. See
State v. Turner, 263 So. 3d 337, 360-64 (La. 2018) (venire not informed that the charged
murder occurred during the course of an armed robbery), petition for cert. filed, No. 18-
9710 (June 14, 2019); State v. Jackson, 836 N.E.2d 1173, 1188-92 (Ohio 2005) (venire
not informed that murder victims included a three-year-old); State v. Clark, 981 S.W.2d
143, 147-48 (Mo. 1998) (same); People v. Cash, 50 P.3d 332, 340-43 (Cal. 2002) (venire
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not informed that defendant had killed his grandparents eight years before the
charged murder).
Because these cases relied more on state-court precedents than on Morgan, they
do not undermine the unanimous authority in the federal courts of appeals holding
that Morgan does not require case-specific questioning. Other state courts have
reached the same conclusion. 37 The Court should therefore reject Tsarnaev’s
expansive reading of Morgan, as every other court of appeals to consider the question
has done.
preliminary instructions to the venire before they filled out the questionnaires, the
district court twice informed the venire that Tsarnaev was “charged in connection
37
See, e.g., Ex Parte Taylor, 666 So. 2d 73, 82 (Ala. 1995) (holding that Morgan
does not require voir dire questions seeking “to identify any prospective juror who
would vote for death under the facts of this particular case” (emphasis omitted));
People v. Brown, 665 N.E.2d 1290, 1303 (Ill. 1996) (“[I]nquiring how the venire
members would act given the particular aggravating circumstances of the victims’
murders in the present case, is clearly not required by Morgan.”); State v. Lynch, 459
S.E.2d 679, 686 (N.C. 1995) (“[I]t [i]s not proper to ask potential jurors if they would
impose the death penalty under the particular facts and circumstances of the case.”);
Clagett v. Commonwealth, 472 S.E.2d 263, 269 (Va. 1996) (holding it was “not the proper
inquiry” under Morgan to ask if prospective jurors would “automatically impose the
death penalty even if they accepted [the defendant’s] theory of the case”).
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with events that occurred near the finish line of the Boston Marathon . . . that resulted
in the deaths of three people.” See, e.g., 1.App.175; 2.App.481-82. The jury
questionnaire gave a “summary of the facts of this case,” indicating that “two bombs
exploded . . . near the Boston Marathon finish line” and that the “explosions killed
Krystle Marie Campbell (29), Lingzi Lu (23), and Martin Richard (8), and injured
hundreds of others.” Add.554. It said that “MIT Police Officer Sean Collier (26) was
shot to death in his police car.” Add.554. And it said that Tsarnaev “has been
After informing the venire of these facts, the questionnaire asked prospective
jurors their views on the death penalty for someone convicted of “intentional
murder” and whether they could “conscientiously vote for life imprisonment without
the possibility of release.” Add.556, 559. And the district court later conducted
individual voir dire, asking, for example, whether prospective jurors would “be
prepared to vote for a penalty of life imprisonment without parole instead of the
Because the jury knew these details, the voir dire adequately covered Tsarnaev’s
proposed questions. Those questions asked some variant of whether jurors would
“automatically sentence him to death” for “intentionally setting off bombs . . . that
resulted in the deaths of three people.” Add.448-49. See Add.448 (“Do you believe
that the death penalty is the only appropriate punishment for persons who deliberately
uses a weapon of mass destruction to cause the deaths of several victims?”); Add.449
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(“If . . . the defendant deliberately committed an act of terrorism that killed multiple
victims, could you consider imposing a life sentence rather [than] the death penalty
. . . ?”). Including those questions in the voir dire would not have meaningfully added
The voir dire similarly covered Tsarnaev’s proposed questions about other
impose the death penalty where the defendant “killed a child by deliberately using a
in the line of duty.” Add.455. Again, the questionnaire informed the prospective
jurors that Tsarnaev was charged with using “bombs” to kill three people, including
And it said he was charged with the death of “MIT Police Officer Sean Collier (26),”
who was “shot to death in his police car.” Add.554. The venire was thus informed of
the critical aggravating facts before being asked general Morgan questions. This was
sufficient even under the state cases on which Tsarnaev relies. See Clark, 981 S.W.2d
at 147 (“Only those critical facts—facts with substantial potential for disqualifying
bias—must be divulged to the venire.”); Jackson, 836 N.E.2d at 1191 (noting that if
jurors had “been aware of th[e] fact” that one murder victim was a three-year-old
“when they were asked general questions of fairness and impartiality, they may well
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have been prompted to admit to a predisposition to recommend the death penalty for
Tsarnaev argues that several prospective jurors demonstrated the need for case-
specific questions, pointing to three who failed to indicate any disqualifying bias on
their jury questionnaires but admitted during individual voir dire that they would be
inclined to impose the death penalty for Tsarnaev. Br. 204-05. He concedes that
“[v]oir dire happened to identify these ineligible venirepersons,” but claims “there is
questions that would have revealed their inability to consider mitigating evidence.”
Br. 205-06. In fact, these potential jurors’ responses prove the opposite point. They
were not asked Tsarnaev’s case-specific questions, yet still admitted they would have
difficulty considering a sentence of life imprisonment under the facts of this case. See
1.App.278-79; 4.App.1478, 1627. Their failure to reveal their hesitation fully in their
questionnaires demonstrates the importance of in-person voir dire. But it does not
3. The district court did not commit any legal error that would
constitute an abuse of discretion.
Tsarnaev argues that the district court’s “refusal to ask Tsarnaev’s proposed
discretion.” Br. 209. The district court correctly applied the law.
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Tsarnaev first claims that the district court “mistakenly rejected the [proposed
of Iowa opinion stating that “it is a misconception to assume that any ‘case-specific’
question is necessarily a ‘stake-out’ question.” Br. 209 (quoting Johnson, 366 F. Supp.
First, the district court did not conclude that all case-specific questions were
“stake out” a position on whether the death penalty is appropriate under particular
aggravation/mitigation” were “really questions about the case and fall into the
category of stakeout,” and that the relevant case law required questions at “a more
stakeout question. Br. 209. Even cases requiring case-specific questioning have
recognized that “[t]he line between permissible inquiry into ‘prejudice’ . . . and
754. The district court was entitled to deference in its determination that Tsarnaev’s
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proposed questions asked prospective jurors whether they believed the death penalty
was the “only appropriate punishment” for the charged offenses. Add.448, 454, 456.
One question went so far as to ask, “In what sort of situation, or for what sort of
convicted defendant, would you favor life imprisonment rather than the death penalty
prospective jurors (who were ultimately seated) whether “the death of a child” would
“make it more difficult” for them to consider life imprisonment. Add.176, 224. As
worded, these questions did not ask whether veniremembers “could fairly consider”
either a life or death sentence, Johnson, 366 F. Supp. 2d at 845 (emphasis omitted), or
would “automatically” impose death, Morgan, 504 U.S. at 723. Instead, they
improperly sought “to discover in advance what a prospective juror’s decision will be
under a certain state of the evidence.”38 Br. 209 (quotations and emphasis omitted)
(quoting Johnson, 366 F. Supp. 2d at 845). Thus, several of these questions were
inappropriate even under Tsarnaev’s preferred cases. See Johnson, 366 F. Supp. 2d at
849 (“[T]o avoid ‘stake-out’ questions, which this court agrees are improper, questions
must be in the form of whether or not the prospective juror ‘could fairly consider’ a
whether the juror would “automatically sentence him to death,” Add.448-49, or would
“always vote to impose the death penalty,” Add.455, in a given situation. But these
questions were unnecessary given the court’s general Morgan questions.
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life sentence, a death sentence, or both, not whether the prospective juror would vote for life or
Second, the district court’s conclusion was consistent with decisions from all
three federal appellate courts to address the question. See Hodges, 727 F.3d at 529;
Richmond, 375 F.3d at 330-31; McVeigh, 153 F.3d at 1207. As those decisions point
out, questions about “specific aggravating and/or mitigating factors” often go beyond
“attempting to identify members of the venire who would always vote for the death
penalty” and “attempt[ ] to preview how prospective jurors will vote given the specific
facts of the individual case.” Hodges, 727 F.3d at 529. Such questions may benefit a
defendant by allowing him to identify and strike jurors who are more likely to impose
the death penalty. But Morgan does not require such a preview of how jurors will
vote. Morgan “is designed to illuminate a juror’s basic beliefs ‘regardless of the facts
views of the appropriate punishment for the particular crime charged.” McVeigh, 153
about specific aggravating factors gave “only one half of the equation.” Add.113.
The questions failed to mention any mitigating factors and assumed that “the juror
has, in fact, found all of the government’s aggravating factors.” Add.114. But a juror
who indicates he would “always vote for the death penalty” in such a hypothetical
of a juror who “has already formed an opinion on the merits” and who “will fail in
Morgan, 504 U.S. at 729. See id. at 736-38 (emphasizing the need to exclude jurors who
would “refuse to give [mitigating] evidence any weight,” would not “follow the
the death penalty without regard to the mitigating evidence”). Morgan does not require
the exclusion of a juror who believes the death penalty is appropriate for a death-
eligible crime where the government has proven aggravating factors but the defense
has failed to prove any mitigating factors.39 Yet most of Tsarnaev’s proposed
questions were aimed at identifying the latter category, and not the former.40 See
Add.455.
The Federal Death Penalty Act allows the imposition of the death penalty in
39
such a situation. See 18 U.S.C. § 3593(e) (requiring jury to “consider whether all the
aggravating . . . factors found to exist sufficiently outweigh the all the mitigating . . .
factors found to exist to justify a sentence of death, or, in the absence of a mitigating
factor, whether the aggravating . . . factors alone are sufficient to justify a sentence of
death”).
beyond a reasonable doubt that the defendant killed a child by deliberately using a
weapon of mass destruction, would you automatically vote for the death penalty
without regard to any mitigating circumstances (such as, for example, the defendant’s
youth, or his family background and relationships)?” Add.449. This question was
arguably proper because it asked if prospective jurors would “automatically” impose
the death penalty and it asked about both aggravating and mitigating factors. But this
question added little to the Morgan questions already posed in the questionnaire and
during individual voir dire, and the district court was not required to ask this specific
question, particularly when it was sandwiched between Tsarnaev’s other improper
questions.
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inquiry—whether the prospective jurors could follow the district court’s instructions
and weigh the aggravating and mitigating factors. Instead, his proposed questions
unhelpfully asked the jurors to opine, unguided by any instructions on the law, on
whether they thought the death penalty was appropriate in particular factual
reflexively agree that the death penalty is the “only appropriate punishment” for
certain crimes, Add.448, 454, 455, yet be perfectly willing and able to consider life
factors.
As the government pointed out below, it would be far more helpful to ask
whether, if prospective jurors had “already found the defendant guilty beyond a
reasonable doubt of the actual offenses,” they would “be able to meaningfully
consider both the aggravating factors and the mitigating factors before [they] came to
a decision as to what the appropriate sentence would be.” Add.114. And the jurors
were asked some variation of this question. See Add.529 (Question 90); 2.App.507-08,
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questions did not focus on the key inquiry, the district court did not abuse its
Tsarnaev also contends that the district court committed “legal error” by
concluding that “venirepersons’ knowledge of certain details about this case made
general Morgan questions ‘sufficient.’” Br. 212. He argues (Br. 212) that the Supreme
Court rejected such reasoning in Ham v. South Carolina, 409 U.S. 524, 527 (1973),
defendant to ask specific questions about racial prejudice and that general questions
about “any bias or prejudice” were insufficient. Id. at 526 n.3. Tsarnaev points out
that the state argued in Ham that the general “bias or prejudice” question was
sufficient because the defendant was “within sight of the jury,” which could observe
his race. See Br. for Resp., Ham v. South Carolina, 1972 WL 135829, at *3-4.
Ham does not support Tsarnaev’s contention for several reasons. First, Ham
never addressed the state’s argument that a general question was sufficient, and there
is no reason to extrapolate a broad rule, applicable in other contexts, from the Court’s
Tsarnaev likely could have asked potential jurors whether there were any
41
categories of cases in which they could not consider life imprisonment. See
6.App.2451 (government asked Juror 355 about the “category of cases” in which he
could impose the death penalty). But Tsarnaev did not seek to do so.
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implicit rejection of that argument. Second, Ham dealt specifically with racial
prejudice, an evil at which the Fourteenth Amendment was directly aimed. Ham, 409
U.S. at 526-27. Ham did not suggest that specific questioning was required for every
type of prejudice. In fact, it held that the defendant was not entitled to ask whether
jurors were prejudiced by “the fact that [the defendant] wore a beard.” Id. at 527.
Third, subsequent cases have clarified that specific questions about racial bias are
required only where “there [i]s a reasonable probability that racial or ethnic prejudice
would affect the jury,” such as a case involving a violent crime “where the defendant
and the victim are members of different racial or ethnic groups.” Rosales-Lopez v.
United States, 451 U.S. 182, 192, 194 (1981) (plurality opinion). See Ristaino v. Ross, 424
U.S. 589, 596 (1976) (“By its terms Ham did not announce a requirement of universal
applicability.”). In short, Ham does not indicate that it was “legal error” for the
views on the death penalty were rendered unnecessary by what the venire already
Tsarnaev also contends that the district court improperly relied on “what the
venirepersons had learned ‘from the media.’” Br. 213. But although the court
referenced “what people understand from the media,” the court went on to mention
jurors of the salient facts, regardless of what they had heard in the media.
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Tsarnaev speculates that jurors might have responded to the court’s Morgan
questions based on “information that was widely reported pre-trial and mitigating in
nature . . . but not introduced at trial.” Br. 213. The only example he can give of
unrelated murders was not mitigating because it does not indicate that Tsarnaev was
implausible to believe that the seated jurors’ stated willingness to consider life
imprisonment was conditioned solely on what they might have read about those
unrelated murders. Tsarnaev cannot show that the district court abused its discretion.
4. The voir dire adequately ensured that the seated jurors were
qualified under Morgan .
Nothing in the record suggests that any of the seated jurors held categorical
views about the death penalty that prevented them from following the court’s
instructions and considering mitigating factors. Indeed, quite the opposite is true. All
the seated jurors indicated that they had open minds about the death penalty, and
nothing in their answers suggested that case-specific Morgan questions were necessary.
Despite being aware of the general facts of the case, not a single seated juror
indicated that he or she had “formed [the] opinion . . . that Dzhokhar Tsarnaev
should receive the death penalty.” See Question 77(c); Add.525. Ten of the twelve
jurors marked (d) on Question 90, indicating they were “not for or against the death
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. . . all the evidence in the case”); 2.App.545 (Juror 41) (“I don’t know any evidence.
And where I’m not one way for death penalty or one way not for the death penalty, to
me, I would have to . . . hear the circumstances and the evidence . . . .”); 2.App.882
(Juror 83) (“I would say definitely life in prison at this point . . . if I had to make a
decision based on what you said, but in terms of the death penalty, . . . I couldn’t say
that right now.”); 2.App.940 (Juror 102) (“I have no . . . views either way. I am really
in the middle. I would have to hear everything and make an educated decision.”);
3.App.1155-56 (Juror 138) (“I’m not more in favor of one way or the other; it would
all depend on the outcome of everything presented.”); 4.App.1673 (Juror 229) (“I’m
not somebody who’s just going to say right at a cocktail party that, yes, somebody
should be put to death or, no, they shouldn’t. I need more information. I’m not
going to just jump to that.”); 5.App.2011-13 (Juror 286) (explaining that she had
“never really thought” about and did not “really have any” impressions of the death
penalty, but could “follow the law” and “decide that by what I’ve heard in the
courtroom”); 6.App.2354, 2358 (Juror 349) (saying she was not “for or against” the
death penalty, but “would have to hear the evidence,” and “whatever the law is, I
would go with that”); 6.App.2641-42 (Juror 395) (although she “always thought [she]
was against” the death penalty, she was not “in a position, without hearing all of the
facts, to say that I am either for it or against it” in Tsarnaev’s case); 7.App.2881 (Juror
441) (“I mean, very, very neutral on it. . . . I don’t really have any concrete feeling on
it.”); 7.App.3058 (Juror 480) (“[I]t might be [better], from my standpoint, that he lives
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the rest of his life in prison versus the death penalty. I mean, I’m still going back and
forth on that.”); 7.App.3077 (Juror 487) (“I don’t have an opinion either way. . . .
Obviously, death would be the worst penalty you can have. But I’ve never felt it
shouldn’t exist. I really didn’t have an opinion one way or the other on it.”).
In light of the jurors’ responses, the district court properly concluded that
further follow-up with case-specific questions was unnecessary. Moreover, the district
court took a flexible approach to voir dire and asked or allowed questions highlighting
the aggravating facts in several instances. See 2.App.521 (“You know what the case is
about. It’s about bombings in which three people died and in which a police officer
think that . . . it should necessarily be the death penalty . . . ?”); 2.App.782 (“You
know that there were bombings in which people were killed?”); 2.App.881
(“[K]nowing that this case is the Boston Marathon bombing and its aftermath. . . .
[d]o you lean one way or another regarding death penalty or life imprisonment?”).
And the court allowed the defense to ask repeatedly whether prospective jurors
“lean[ed] one way or the other” regarding the death penalty for this particular case.
9.App.3882. The district court did not abuse its discretion by disallowing questions
focused on the specific aggravating facts of this case that the venire already knew.
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D. The district court did not abuse its discretion by denying inquiry
into the specifics of what each prospective juror had read, heard,
or seen about the case before trial.
Tsarnaev next contends that this Court’s decision in Patriarca v. United States,
402 F.2d 314 (1st Cir. 1968), required the court to ask “not just whether prospective
jurors had seen media coverage of this case, but what, specifically, they had seen.” Br.
192. He relies on Patriarca’s statement that a district court should question potential
jurors “with a view to eliciting the kind and degree of his exposure to the case or the parties.”
Br. 218 (quoting Patriarca, 402 F.2d at 318, and adding emphasis). And he asserts that
by failing to ask such questions, the district court “created a jury biased by prejudicial
Patriarca does not support Tsarnaev’s assertion that the district court’s
questioning was inadequate. In Patriarca, this Court held that pretrial publicity did not
require a change of venue. Patriarca, 402 F.2d at 317. The Court noted that a month
had elapsed between the trial and the widely publicized car-bombing of a government
witness’s attorney and that the media reporting contained no “prejudicial statements
316-17.
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Patriarca also observed that voir dire provided “another opportunity for counsel
to mitigate any possible effect of pretrial publicity.” Patriarca, 402 F.2d at 317. But
the defense did not ask for any questions about pretrial publicity beyond the court’s
asking prospective jurors whether they could “give the defendants a fair and impartial
trial.” Id. at 318. This Court observed that “such a single question posed to the panel
prejudice from prior publicity.” Id. And where there is “a significant possibility” of
prejudicial pretrial publicity and a “request of counsel,” “we think that the court
eliciting the kind and degree of his exposure . . . , the effect of such exposure on his
present state of mind, and the extent to which such state of mind is immutable or
Patriarca does not, as Tsarnaev claims, establish that the district court in this
case committed reversible error by failing to ask prospective jurors “what they had
seen, read, or heard about his case.” Br. 183. This is so for several reasons.
First, this part of Patriarca was dicta. Patriarca found no abuse of discretion
even though the district court failed to conduct the recommended inquiry.42 Patriarca,
Tsarnaev points out (Br. 218-19) that Patriarca said (again in dicta) that its
42
view was “in accord with the suggestions” of the ABA Standards Relating to Fair Trial
and Free Press, § 3.4 (Tentative Draft, Dec. 1966). Patriarca, 402 F.2d at 318. Those
standards said that voir dire should determine what prospective jurors have “read and
heard about the case.” See 25.App.11628. The Supreme Court has declined to place
much weight on the ABA Standards in subsequent cases, however, particularly
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402 F.2d at 317-18. And even that recommended inquiry would not require more
detailed questioning than took place in this case. Patriarca recommended individual
questioning “with a view to eliciting the kind and degree of [the potential juror’s]
exposure to the case or the parties.” Id. And the questionnaire in this case did ask
each individual juror about the “kind and degree” of media exposure. Id. It asked
what newspapers, radio programs, and television programs each prospective juror
viewed and with what frequency, as well as how much media coverage he or she had
seen about the case. See Add.551-52. More importantly, both the questionnaire and
the individual voir dire focused on the key inquiry—“the effect of such exposure” on
the prospective juror’s “present state of mind” and “the extent to which such state of
mind is immutable or subject to change from evidence.” Patriarca, 402 F.3d at 318.
Patriarca to compel content questioning.” Br. 219. In United States v. Medina, 761 F.2d
12, 20 (1985), this Court concluded that voir dire “fully complied” with circuit
precedent, including Patriarca, where the court asked jurors about the “extent” of their
knowledge of the case and whether they had “formed an opinion of the guilt or
because earlier versions of those Standards (such as the version cited by Patriarca)
provided that “answers to questions about content, without more, could disqualify the
juror from sitting,” whereas, “[u]nder the constitutional standard, . . . ‘[t]he relevant
question is not whether the community remembered the case, but whether the jurors
. . . had such fixed opinions that they could not judge impartially the guilt of the
defendant.’” Mu’Min, 500 U.S. at 430 (quoting Patton v. Yount, 467 U.S. 1025, 1035
(1984)). See 25.App.11628 (1966 ABA Standards).
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innocence of the defendant.” Medina does not indicate whether the court asked jurors
about the specific content of the pretrial publicity, and it had no occasion to decide
Tsarnaev’s citations to United States v. Vest, 842 F.2d 1319 (1st Cir. 1988), and
United States v. Orlando-Figueroa, 229 F.3d 33 (1st Cir. 2000), are similarly inapposite.
Those cases addressed claims that the failure to conduct individual questioning
regarding pretrial publicity was reversible error. Vest, 842 F.3d at 1331; Orlando-
Figueroa, 229 F.3d at 43. Neither held that any specific types of questions were
required. And although Tsarnaev is correct (Br. 220) that the questionnaire in Skilling
asked jurors about the details of their media exposure, the Supreme Court did not
suggest that such questions were required. See Skilling v. United States, 561 U.S. 358,
388 & n.22 (2010) (noting that the dissent “undervalue[d] the 77-item questionnaire,”
In any event, Patriarca, Medina, and the out-of-circuit cases that Tsarnaev cites
(Br. 220) were all decided prior to the Supreme Court’s decision in Mu’Min, which
rejected the argument that the Constitution requires courts to question prospective
jurors “about the specific contents of the news reports to which they had been
exposed.” Mu’Min, 500 U.S. at 417. Mu’Min acknowledged that specific questions
about content “might be helpful in assessing whether a juror is impartial.” Id. at 425.
might be helpful. Rather, the trial court’s failure to ask these questions must render
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the defendant’s trial fundamentally unfair.” Id. at 425-26. The Constitution does not
require the trial court to “make precise inquiries about the contents of any news
reports that potential jurors have read.” Id. at 424-25. Mu’Min seriously undermines
Tsarnaev’s claim that the voir dire process in this case “compromised [his] right to an
Tsarnaev claims that Mu’Min does not apply to this case for two reasons. First,
he contends that this case “falls within Mu’Min’s dictum that due process ‘might well
have required more extensive examination’ had that case involved . . . a ‘wave of
public passion engendered by pre-trial publicity,’” like that in Irvin v. Dowd, 366 U.S.
717, 728 (1961). Br. 222 (some quotation marks omitted) (quoting Mu’Min, 500 U.S.
at 429). But Mu’Min simply noted that more questions “might” be required in a given
situation; it did not establish a constitutional requirement. And there are important
differences between this case and Irvin, most notably the population of the venue
(30,000 in Irvin versus about five million in eastern Massachusetts) and the fact that
several seated jurors in Irvin expressed serious bias. See Irvin, 366 U.S. at 728 (one
juror said he “could not . . . give the defendant the benefit of the doubt that he is
innocent,” and another said he had a “somewhat” fixed opinion as to the defendant’s
guilt).
examination” than the one in Mu’Min. An important issue in Mu’Min was whether the
trial court properly questioned prospective jurors in groups of four, or whether, as the
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Mu’Min, 500 U.S. at 425. Here, of course, the district court conducted individual voir
Mu’Min did not use. The thorough voir dire process here was sufficient even if this
Second, Tsarnaev points out that Mu’Min addressed only the constitutional
standard, and he argues that “Patriarca, which made no reference to the Constitution,
announced a supervisory rule unaffected by Mu’Min.” Br. 222-23. But Patriarca made
no reference to supervisory powers, and Tsarnaev has cited no cases that have
questioning were dicta, it did not “announce[ ]” any sort of binding “supervisory
unaffected by Mu’Min, there was no abuse of discretion here. Although federal courts
“enjoy more latitude in setting standards for voir dire in federal court under [their]
supervisory power” than when interpreting the Constitution, in “both sets of cases,”
the “trial court retains great latitude in deciding what questions should be asked on
voir dire.” Mu’Min, 500 U.S. at 424. The district court here did not exceed that
latitude.
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“No hard-and-fast formula dictates the necessary depth or breadth of voir dire.”
Skilling, 561 U.S. at 386. “The Constitution, after all, does not dictate a catechism for
voir dire, but only that the defendant be afforded an impartial jury.” Morgan, 504 U.S.
at 729. Thus, “[w]hether a trial court decides to put questions about the content of
publicity to a potential juror or not, it must make the same decision at the end of the
questioning: is this juror to be believed when he says he has not formed an opinion
about the case?” Mu’Min, 500 U.S. at 425. The voir dire in this case was adequate to
The district court took a flexible approach to voir dire. As Tsarnaev recognizes
(Br. 195 n.109), he was allowed to ask one of the seated jurors what “st[ood] out in
[her] mind, if anything, about this case from anything [she had] heard, seen.”
2.App.942. Two other seated jurors volunteered information about what they had
None of the seated jurors’ responses suggested a need to delve into the
specifics of the media coverage they had seen. Only three of the 12 indicated that
they had formed an opinion that Tsarnaev was guilty, 26.App.12132, and those three
indicated they could set their opinions aside, 26.App.11843, 11870, 11955. During
individual voir dire, all 12 jurors indicated that they gave little weight to what they had
seen or heard and could avoid drawing any conclusions at trial based on media
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6.App.2351, 2633; 7.App.2880, 3050, 3075-76. The record does not suggest that any
follow-up was necessary or that any seated juror was actually biased. See McVeigh, 153
F.3d at 1210 (“[T]he record reveals sufficient indicia of safeguards for us to conclude
The district court could also reasonably conclude that the costs of detailed
pointed out, asking jurors to recall everything they had read or seen would “not likely
yield reliable answers” and could result in “unmanageable data.” Add.115, 304-05.
The court also expressed legitimate concern that “detailed questioning about what the
juror thinks he or she knows about the events” creates the “wrong emphasis” and
could inadvertently create bias where none existed. Add.143. Inquiring into jurors’
(potentially faulty) memories of what they had read or seen in the press months or
years earlier, for example, could have reinforced potentially prejudicial information
from those sources. In declining to ask further questions, the district court did not
In any event, any error in failing to allow inquiry into the specific media
coverage to which potential jurors had been exposed was harmless. The ultimate
question is not what a juror had heard about the case or even whether he had
“formed some impression or opinion as to the merits,” but whether “the juror can lay
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aside his impression or opinion and render a verdict based on the evidence presented
in court.” Irvin, 366 U.S. at 722-23. As already explained, the district court engaged in
an extensive voir dire process to ensure that the jurors in this case could do so.
Nothing suggests that more specific questions about media coverage would have
revealed any undisclosed bias in the seated jurors. Thus, any alleged error was
harmless.
three people in Waltham, Massachusetts, in 2011. Br. 227-73. He also contends that
the district court violated his rights under Brady v. Maryland, 373 U.S. 83 (1963), by not
allowing the defense to see an FBI report and recordings relating to an interview in
killings. Br. 274-85. The district court acted within its discretion by excluding the
evidence, which would not have mitigated Tsarnaev’s punishment and would have
confused the issues in this case. Even if the court did abuse its discretion, any error
was harmless beyond a reasonable doubt. The district court also correctly concluded
already had access to much of the same information, the information was not
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discoverable under Brady, and the information was subject to the law enforcement
A. Background
Massachusetts. 25.App.11437. They were found bound and beaten, with their throats
cut and their bodies covered with marijuana. 25.App.11437. One of the victims,
Brendan Mess, was Tamerlan’s friend. 25.App.11437. The Waltham killings went
unsolved. 23.App.10465.
Todashev, then living in Florida, on four separate occasions in April and May 2013.
43
the night of May 21, 2013, an FBI agent and two Massachusetts State Troopers
The Todashev 302s were filed ex parte in the district court and are available
43
for this Court’s review. This Court also made them available to the defense for
review pursuant to a protective order. Order of the Court, No. 16-6001 (1st Cir. Oct.
3, 2018) (granting the motion in part); Order of the Court No. 16-6001 (1st Cir. Oct.
25, 2018) (modifying the protective order to include learned appellate counsel).
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questioned Todashev about the Waltham killings over the course of several hours.
23.App.10556, 10568, 10571. Todashev eventually said he knew something about the
murders and asked if he could get a deal for cooperating. 23.App.10571, 10575.
As part of a pretrial discovery request, Tsarnaev asked the government for “[a]ll
Todashev, and/or our client in those murders.” See 23.App.10442. The government
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declined to provide the requested information because the matter was still under
Tsarnaev then moved to compel discovery, arguing that “evidence about the
nature and extent of Tamerlan’s alleged involvement in the Waltham murders, and the
documents were “not discoverable under the Federal or Local Rules of Criminal
The district court denied Tsarnaev’s motion to compel, concluding that the
Waltham murder evidence was not discoverable under Brady or Federal Rule of
Criminal Procedure 16. Add.390-94. The court concluded “[i]n addition” that the
and that Tsarnaev had “not articulated a specific need for these privileged materials”
committed a gruesome triple murder—and having included a ‘close friend’ among the
23.App.10486. In response to this motion, the district court ordered that “reports of
Ibragim Todashev’s statements to the FBI . . . be submitted to the Court for in camera
review.” Add.397.
denied disclosure, explaining: “I ha[ve] reviewed the matters that the government
submitted in camera, including recordings, and I see no reason to compel any further
representing Tsarnaev’s friend Dias Kadyrbayev, who was facing prosecution for
concealing Tsarnaev’s backpack and computer, told the government that his client
the fall of 2012 from Dzhokhar Tsarnaev that Tamerlan Tsarnaev was involved in the
Waltham murders” and that “Dzhokhar Tsarnaev told Kadyrbayev that his brother
motion to compel. 24.App.11291. The district court again denied Tsarnaev’s request.
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Add.429-30. The court observed that only one of the in camera documents—an FBI
302 from the May 21 interview—was “pertinent to the request,” and determined that
disclosure of that information could interfere with the ongoing investigation into the
Waltham murders. Add.429-30. The court further observed that the government had
“already conveyed [to the defense] the fact and general substance of Todashev’s
criminal cases do not require more.” Add.429-30. The court explained that it “fully
underst[ood] the mitigation theory the defense thinks the requested discovery may
advance,” but, in the court’s view, “the report does not materially advance that theory
beyond what is already available to the defense from discovery and other sources.”
Add.430. Instead, the report’s “utility . . . to the defense in building a mitigation case
introducing at the penalty phase any evidence that Tamerlan participated in the
was irrelevant unless Tsarnaev “in fact believed his brother had committed the
Waltham murders and was influenced to commit the crimes charged in [this case] by
to try to shift the blame to someone else.” 25.App.11439. Finally, the government
contended that the Waltham evidence would confuse the jurors by opening the door
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to “a great deal of information having nothing to do with the crimes charged in the
The district court granted the government’s motion in limine, concluding that
have had” in the Waltham murders. Add.351. The court said: “From my review of
plausible . . . that Todashev was the bad guy and Tamerlan was the minor actor.
There’s just no way of telling who played what role, if they played roles.” Add.352.
Thus, the court concluded that the evidence “would be confusing to the jury and a
authority as the eldest brother, or other reasons”; that Tsarnaev “acted under the
influence of his older brother”; that he “would not have committed the crimes but for
his older brother”; and that Tamerlan was “the dominant male figure in [Tsarnaev’s]
the traditional role of an older brother in Chechen families and about Tamerlan’s
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radical Islamist beliefs and aggressive character. See 17.App.7521-25, 7530-32, 7540-
Before Tsarnaev filed his opening brief on appeal, this Court allowed
Tsarnaev’s appellate counsel to view all the Todashev-related materials that the district
court had reviewed in camera, including the FBI 302 of the May 21, 2013 interview in
which Todashev implicated Tamerlan. Order, No. 16-6001 (1st Cir. Oct. 3, 2018).
B. Standard of review
excluding evidence for abuse of discretion.” Sampson I, 486 F.3d 13, 42 (1st Cir.
2007). See United States v. Mikhel, 889 F.3d 1003, 1062 (9th Cir. 2018) (“We review the
exclusion of mitigating evidence for abuse of discretion.”), petitions for cert. filed, Nos.
18-7489 (Jan. 14, 2019), and 18-7835 (Feb. 4, 2019). “Where evidence is challenged
on the ground that the trial court has struck the wrong balance between probative and
prejudicial effect,” this Court “afford[s] great deference to the trier’s first-hand
knowledge of the case and ordinarily will sustain the district court’s exercise of
discretion unless its judgment is plainly incorrect.” Sampson I, 486 F.3d at 42.
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abuse of discretion.” United States v. López-Díaz, 794 F.3d 106, 116 (1st Cir. 2015). See
United States v. Bulger, 816 F.3d 137, 153 (1st Cir. 2016) (same). Again, Tsarnaev
contends that this “deferential standard of review is not warranted” because the
district court “failed to . . . review . . . most of the material in question.” Br. 276. But
the district court could determine whether the details of the Todashev interviews were
properly withheld from disclosure by reading the report. It did not need to “actually
listen[ ] to Todashev’s words,” Br. 277, or see his “behavior and demeanor,” id. at 275
n.121, neither of which was relevant to whether the report was privileged or material.
Both the Eighth Amendment and the Federal Death Penalty Act “protect the
Mikhel, 889 F.3d at 1062. In Eddings v. Oklahoma, 455 U.S. 104, 112 (1982), the Court
held that “the sentencer in capital cases must be permitted to consider any relevant
mitigating factor.” See Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion)
(“[T]he Eighth and Fourteenth Amendments require that the sentencer . . . not be
character or record and any of the circumstances of the offense that the defendant
The Federal Death Penalty Act (FDPA) states that a defendant “may present
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Tennard v. Dretke, 542 U.S. 274, 284 (2004) (quotations omitted). The FDPA allows
courts to exclude mitigating evidence “if its probative value is outweighed by the
danger of creating unfair prejudice, confusing the issues, or misleading the jury.” 18
U.S.C. § 3593(c).
In excluding evidence of the Waltham murders, the district court acted well
within its discretion. The evidence had little or no relevance to whether Tsarnaev
deserved the death penalty. And any relevance that it had was outweighed by the
evidence in capital cases, including “the background and mental and emotional
development of a youthful defendant,” Eddings, 455 U.S. at 116, “evidence that the
defendant would not pose a danger if spared (but incarcerated),” Skipper v. South
Carolina, 476 U.S. 1, 5 (1986), and “absence of direct proof that the defendant
intended to cause the death of the victim” or evidence that the defendant had a
“comparatively minor role in the offense,” Lockett, 438 U.S. at 608 (plurality opinion).
And the FDPA requires the jury to consider any “factors in the defendant’s
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But there are still limits on what is relevant for mitigation purposes. Trial
offense.” Lockett, 438 U.S. at 604 n.12 (plurality opinion). See Skipper, 476 U.S. at 7 n.2
determination”).
The fact that his brother was implicated in an unrelated triple murder almost
two years before the Boston Marathon bombing does not mitigate Tsarnaev’s offense
with Tsarnaev’s “character or record,” nor does it relate to the “circumstances of” this
“offense.” Eddings, 455 U.S. at 110 (quotations omitted). Nothing suggests that
relevance fail.
relevant evidence” in capital cases. Br. 230. But he fails to show how this is true
absent a connection between the co-conspirator’s violent history and the defendant’s
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commission of the instant offense. Tsarnaev cites the statutory mitigating factor
will not be punished by death.” 18 U.S.C. § 3592(a)(4). “This factor does not
measure the defendant’s culpability itself, but instead considers—as a moral data
point—whether that same level of culpability, for another participant in the same
criminal event, was thought to warrant a sentence of death.” United States v. Gabrion,
719 F.3d 511, 524 (6th Cir. 2013) (en banc). Because Tamerlan was already dead, the
fact that he did not face the death penalty indicates nothing about whether Tsarnaev
deserved death.
Next, Tsarnaev cites Enmund v. Florida, 458 U.S. 782, 801 (1982), where the
Court held that the death penalty was unconstitutional for felony murder without
proof that the defendant “intended or contemplated that life would be taken.” Br.
230. Enmund said nothing about what evidence is admissible in a capital penalty phase
simply held that the death penalty is impermissible for a “minor actor in an armed
robbery, not on the scene, who neither intended to kill nor was found to have any
culpable mental state.” Tison v. Arizona, 481 U.S. 137, 149 (1987) (summarizing
Enmund). Tsarnaev cannot credibly contend that he was anything like the getaway
driver in Enmund, who was only “vicariously guilty” and was not proven to have
“intended or contemplated that life would be taken.” Enmund, 458 U.S. at 800-01.
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Tsarnaev personally placed and detonated a bomb in a crowded area with the goal of
taking lives.
The state and district court cases Tsarnaev relies on are closer, but still miss the
mark. In Cooper v. Dugger, 526 So. 2d 900, 902-03 (Fla. 1988), the Florida Supreme
character and domination of” the defendant. And in Troedel v. Wainwright, 667 F.
Supp. 1456, 1461-62 (S.D. Fla. 1986), the court held that counsel rendered ineffective
assistance by failing to learn that the co-defendant had a violent history and motive
for the killing (which the defendant lacked). In each case, however, the co-
defendant’s violent history was arguably linked to the charged offense, either because
there was other evidence of “domination,” Dugger, 526 So. 2d at 903, or because the
co-defendant had a greater motive for the offense and therefore may have had a
greater role, Troedel, 667 F. Supp. at 1461-62. Neither factor is present here.
“violent” and a “cold-blooded killer.” Br. 229. But that fact was not in question,
considering his participation in the crimes in this case. Nor does it mitigate
Tsarnaev’s offense. Indeed, the fact that Tsarnaev continued to associate with
aggravating. Evidence about Tamerlan’s violent nature was not automatically relevant
Next, Tsarnaev argues that the Waltham murder evidence was relevant to show
that Tamerlan “influenced” or “intimidated” him. See Br. 245, 247, 250, 251, 269.
Specifically, Tsarnaev argues that “the bombings were not the first time Tamerlan had
committed brutal crimes and influenced another person to help him.” Br. 245-46. See
id. at 247. He claims that his “knowledge of his brother’s willingness to kill someone
juror that Tsarnaev “placed the bomb on the finish line out of fear of what his
This argument fails because no evidence indicates that Tsarnaev committed the
bombings and subsequent crimes out of fear for his life or safety.44 Evidence is
irrelevant where “proof of some additional fact is required before the evidence could
support the point for which it is offered” or where “there is no other proof
supporting the proposition to which the evidence is directed and that evidence is
C. Kirkpatrick, Federal Evidence, § 4:2 (4th ed.). See United States v. Brandon, 17 F.3d 409,
444-45 (1st Cir. 1994) (evidence that zero-down loans were common in commercial
real estate was irrelevant where the charged crimes involved fake down payments). As
Tsarnaev did not seek a duress instruction during the guilt phase, nor did he
44
try to prove the statutory mitigating factor that applies when “[t]he defendant was
under unusual and substantial duress,” 18 U.S.C. § 3592(a)(2).
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explained above, evidence that Tamerlan may have committed unrelated murders is,
by itself, “insufficient to prove” that Tsarnaev committed the crimes in this case out
of fear of Tamerlan. Muller & Kirkpatrick, § 4:2. And because there “is no other
proof supporting the proposition” to which the Waltham evidence was directed, that
McVeigh is instructive. There, the district court excluded from the penalty
phase evidence that an anti-government organization had plotted to bomb the same
federal building in Oklahoma City that McVeigh himself bombed. United States v.
McVeigh, 153 F.3d 1166, 1211 (10th Cir. 1998), overruled on other grounds by Hooks v.
Ward, 184 F.3d 1206 (10th Cir. 1999). McVeigh argued that this evidence showed
that he was a “less culpable” member of a “broader conspiracy.” Id. at 1213. The
Tenth Circuit disagreed. Id. Because there was no “evidentiary link” between
McVeigh and the organization, “there simply was no basis for the jury to conclude
committed the marathon bombing out of fear for his own safety. The district court
behavior toward others. See 17.App.7521-25 (angrily shouted down an imam for
references to Thanksgiving and Martin Luther King, Jr.), 7530-32 (angry outburst to
store owner about halal turkeys at Thanksgiving), 7540-50 (poked opponent in the
chest during a heated argument about Islam), 7793-7800 (radical Islamic views and
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had a physical fight with his girlfriend, threatened and frightened his girlfriend’s
roommates). Yet nothing suggested that Tamerlan was ever aggressive toward
The evidence showed that Tsarnaev was independent and willing to make his
own decisions. At the time of the bombing, he was a sophomore at the University of
Massachusetts Dartmouth, living more than 60 miles away from Tamerlan’s home in
Cambridge. See 1.Supp.App.77 (Gov’t Exh. 1440 at 12) (demonstrative exhibit with
map). Tsarnaev had his own car and his own group of friends. 17.App.7963, 7969.
And although Tamerlan had become very religious and stopped drinking or smoking
marijuana (at least in the presence of others), 17.App. 7545, 7670-71,7808, Tsarnaev
18.App.8098-99. Tsarnaev told his friend Stephen Silva that Silva would not want to
meet Tamerlan because he was “very strict,” “very opinionated,” and might “give
[Silva] a little shit” for not being a Muslim. 12.App.5309. Yet Tsarnaev himself did
not live by Tamerlan’s strict rules and instead lived a carefree party lifestyle.
17.App.7980-84; 18.App.8098-99.
Moreover, the evidence shows that Tsarnaev was a willing and at times
independent participant in joint crimes with his brother. He texted and tweeted that
borrowed the 9mm pistol used in the offense. 12.App.5264-67. He rented and shot a
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9mm pistol at a firing range less than a month before the bombing. 14.App.6060-65;
17.App.7992. On the day of the bombing, he carried his own separate bomb.
14.App.6423; Gov’t Exh. 22 (video). After splitting up with Tamerlan, he placed and
detonated that bomb in the middle of a crowd that included children, resulting in two
deaths and dozens of injuries. 14.App.6423; 1.Supp.App.14 (Gov’t Exh. 29); Gov’t
joined Tamerlan in killing a police officer in an attempt to get a second gun, helped
kidnap Dun Meng at gunpoint, and stole money using Meng’s ATM card.
on Laurel Street while his brother shot at them. 12.App.5045-46, 5077-78, 5151,
5157. When the bombs ran out and police were arresting Tamerlan, Tsarnaev did not
surrender or even try to escape through the unblocked end of Laurel Street. See
toward the officers and his still-living brother in an attempt to kill them all.
Even after Tamerlan’s death, Tsarnaev never suggested that he committed his
crimes out of fear. While hiding in the boat, he praised Tamerlan as a martyr, said he
wanted to become a martyr himself, and tried to “shed some light on our actions,”
United States government was killing innocent Muslims and that “I can’t stand to see
But video footage before and after the marathon bombing—as well as Tsarnaev’s
nonchalant tweets and texts—suggest that Tsarnaev was not nervous or fearful at all.
See Gov’t Exhs. 22 (Forum restaurant video); 1181 to 1183 (UMass Dartmouth fitness
center video); 748 (Shell gas station video); 1.Supp.App.64 (Gov’t Exh. 1313) (“Ain’t
no love in the heart of the city, stay safe, people.”); 1.Supp.App.66 (Gov’t Exh. 1320)
(“I’m a stress free kind of guy.”); 1.Supp.App. 51 (Gov’t Exh. 1153) (“Better not text
officers, and trying to run officers over—is entirely inconsistent with his claim that he
Next, Tsarnaev claims that the Waltham murder evidence was relevant to show
that Tamerlan “played a much greater role in these offenses than [Tsarnaev]” because
he “initiated the bombings and the brothers’ failed escape.” Br. 250. See id. at 247,
262, 267. He is incorrect. As an initial matter, the primary question for the jury was
Tsarnaev’s role in the offense, not his brother’s. Even if Tamerlan played a “greater
role,” the jury could still have concluded that Tsarnaev’s comparatively lesser role
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not tend to show that Tsarnaev played a “less significant” or “less culpable” role in
the Boston Marathon bombings and the brothers’ subsequent crimes.46 Br. 262, 268.
Tsarnaev claims that evidence that Tamerlan had previously “influenced a less
inference that Tamerlan had done the same with Tsarnaev. But Tamerlan did not
Because
Tamerlan had not previously “recruit[ed]” (much less coerced) someone into
“commit[ting] violence,” Br. 269, the Waltham incident provides no support for
was the leader in the brothers’ relationship. See 12.App.5302 (when Stephen Silva
heard about the bombing he thought “it must have been [Tsarnaev’s] brother who got
him into it”); 17.App.7802 (Tsarnaev never spoke much at the gym when Tamerlan
was in the room); 18.App.8293 (Tsarnaev was proud of Tamerlan). And five jurors
found that Tamerlan “became radicalized first, and then encouraged his younger
brother to follow him,” Add. 92, yet still found the death penalty appropriate.
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Tsarnaev did want to kill people. Months before the bombing, he texted a friend
about jihad and his desire to reach the “[h]ighest level” of paradise. 1.Supp.App.74
(Gov’t Exh. 1395). He repeated that sentiment on Twitter and expressed a desire for
13.App.5934. A month before the bombing, as well as the day after it, he accessed
the Inspire magazine file on his computer that showed how to build bombs and urged
Muslims in the West to “damage the enemy” with them. 13.App.5663; 1.Supp.App.39
(Gov’t Exh. 1142-013 at 5); 2.Supp.App.210 (1142-091 at 33). And after the
11.App.4556 (“I can’t stand to see such evil go unpunished.”). Because Tsarnaev had
a clear motive for the bombing and personally took part in it, his position is nothing
like Todashev’s. Evidence of the Waltham murders is not relevant to show that he
Tsarnaev cites cases (Br. 247-49) that, he says, hold “that a defendant’s death
sentence may not stand where the jury has been prevented from hearing evidence
tending to show that the defendant may not have had the primary role in the offense.”
Br. 247. But in those cases, the evidence was about the co-defendant’s role in the
charged offense, not his participation in an unrelated crime. For example, in Mak v.
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Blodgett, 970 F.2d 614, 622 (9th Cir. 1992) (per curiam), the court found prejudice
from cumulative errors, including the court’s “refusal . . . to admit at the penalty
phase” evidence that Mak’s co-defendant and a third party actually “may have planned
the massacre,” which rebutted the state’s argument that Mak himself had planned it.
And in Cooper v. Sec’y, Dep’t of Corr., 646 F.3d 1328, 1354-55 (11th Cir. 2011), the court
concluded that the defendant was prejudiced by his counsel’s failure to call his family
the sentencing court rejected because it was based solely on the defendant’s self-
reporting. See also Dugger, 526 So. 2d at 902-03 (improper exclusion of non-statutory
character and domination of” the defendant); Troedel, 667 F. Supp. at 1461-62 (counsel
and motive for the killing); Buttrum v. Black, 721 F. Supp. 1268, 1314-16 (N.D. Ga.
1989) (improper exclusion of evidence that defendant’s husband had urges to rape
women, wanted to kill his mother, and had attacked his mother with a knife, all of
which suggested the husband was the dominant actor in the charged rape and murder
and rebutted the state’s claim that he did nothing violent before he met the
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defendant), aff’d, 908 F.2d 695 (11th Cir. 1990). None of the cases Tsarnaev cites
crimes are not relevant for mitigation purposes. See Cauthern v. Colson, 736 F.3d 465,
488 (6th Cir. 2013) (no prejudice from counsel’s failure to present evidence that the
co-defendant was suspected of an unrelated and unsolved rape and murder; the
evidence was “inadmissible” in the defendants’ joint trial because “a reasonable juror
would not have concluded” that the evidence “had any bearing on [the defendant’s]
relative culpability”); Fuller v. Dretke, 161 F. App’x 413, 416 (5th Cir. 2006)
[the defendant’s] character and background”); Carter v. Gibson, 27 F. App’x 934, 949-
distributed drugs, and received stolen property “would not have been mitigating as to
[the defendant’s] participation in the crime or his character”); Lawrence v. State, 846 So.
2d 440, 449-50 (Fla. 2003) (no error in excluding co-defendant’s criminal history
reversal of the death sentences. See Mak, 970 F.2d at 624-25 (erroneous jury
instructions and verdict form); Cooper, 646 F.3d at 1354-56 (failure to present
childhood and family background information); Cooper, 526 So. 2d at 901-02
(improper exclusion of evidence showing rehabilitation); Troedel, 667 F. Supp. at 1458-
66 (state presented false and misleading testimony, counsel failed to depose state’s
expert witness, and state violated its Brady obligations); Buttrum, 721 F. Supp. at 1312-
14, 1316-18 (failure to provide sufficient psychiatric assistance to the defense, use of
psychiatric interrogation violated Fifth and Sixth Amendment, prosecutorial
misconduct during closing argument).
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where there was “no evidence presented or proffered indicating how [the co-
defendant’s] record influenced [the defendant’s] behavior in the instant crime”); Jones
v. State, 539 S.E.2d 154, 161 (Ga. 2000) (concluding that co-defendant’s prior murder
conviction “would not tend to lessen [the defendant’s] culpability for the murder, nor
record, or the circumstances of the offense” (quotations omitted)); State v. Goode, 461
S.E.2d 631, 651 (N.C. 1995) (“[H]is accomplice’s criminal record has no bearing on
decisions—and the dissimilarities between the Waltham murders and the marathon
bombing—the district court’s conclusion that the Waltham evidence was irrelevant
Even if the Waltham evidence had some relevance for mitigation, the district
court was within its discretion to exclude the evidence based on the risk of “confusing
the issues[ ] or misleading the jury.” 18 U.S.C. § 3593(c). Consistent with the
Supreme Court’s view that it is “desirable for the jury to have as much information
before it as possible” in a capital penalty phase, Gregg v. Georgia, 428 U.S. 153, 204
(1976) (plurality opinion), the FDPA states that “[i]nformation is admissible regardless
of its admissibility” under the Federal Rules of Evidence, 18 U.S.C. § 3593(c). But the
Act allows district courts to exclude information “if its probative value is outweighed
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by the danger of creating unfair prejudice, confusing the issues, or misleading the
jury.” 18 U.S.C. § 3593(c). This allows for the exclusion of more evidence than
Federal Rule of Evidence 403, which requires that the “probative value be substantially
The district court reasonably concluded that the Waltham evidence risked
confusing the issues. Tsarnaev wanted to prove Tamerlan’s guilt for the unrelated
murders, not simply through a prior conviction (which obviously did not exist), but
from non-Muslims, computer records from Tamerlan’s wife’s computer, and witness
testimony about Tamerlan’s close relationship with Brendan Mess. See Add.339-40,
343, 346-48; 25.App.11574; Doc. 1292-1 at 3. Tsarnaev also now indicates that he
would have called his friend Kadyrbayev to testify that Tsarnaev knew about
Faced with all this evidence relating to the Waltham murders, the jurors easily
could have been confused as to what issues they needed to decide and how they bore
compel, 24.App.11292, but he did not mention it when arguing that the Waltham
murder evidence was admissible at trial, see Add.343-44, 347-49; Doc. 1292-1. Thus,
he failed to provide the district court with an essential link in his argument that the
Waltham evidence was relevant—evidence that Tsarnaev knew of Tamerlan’s alleged
role in the triple murder.
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on Tsarnaev’s culpability. For example, they would have had to determine whether
exaggerated Tamerlan’s responsibility for the murders in order to minimize his own.
As the district court observed, it was possible that “Todashev was the bad guy and
agent at the conclusion of the interview in which he was questioned about the
Waltham murders. Todashev’s actions, which are more consistent with guilt, could
suggest that he committed the murders and only pinned them on Tamerlan because
Moreover, in trying to determine how much Tsarnaev knew about the murders,
the jury easily could have speculated (quite prejudicially to Tsarnaev) about whether
he knew about Tamerlan’s plans to kill in advance and failed to thwart them, and why
he told Kadyrbayev about the murders, but not the police. Because the Waltham
district court could reasonably decline to allow a miniature trial regarding those
murders.
The Waltham evidence also could have misled the jury into believing that
Tsarnaev did not deserve the death penalty simply because he was not as bad as his
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brother. The primary focus of the jury’s inquiry is “the defendant’s background, record,
(emphasis added). See Lockett, 438 U.S. at 604 n.12 (plurality opinion) (“the
defendant’s character, prior record, [and] the circumstances of his offense”). The
Waltham evidence would have confusingly focused the jury’s attention on Tamerlan’s
The Ninth Circuit upheld the exclusion of similar collateral evidence in United
States v. Mitchell, 502 F.3d 931, 991-92 (9th Cir. 2007), where a capital defendant
sought to put on evidence about the details of two unrelated murders in order to
impeach a prosecution witness and to “contrast his culpability” with that of the other
murderer, who did not face the death penalty. The Ninth Circuit concluded that the
district court did not “abuse[ ] its discretion in concluding that more information than
this about these separate murders would confuse the issues and mislead the jury.” Id.
at 992. The details of the unrelated murders “had little apparent bearing on Mitchell’s
character or the circumstances of Mitchell’s offense.” Id. at 991. Cf. United States v.
Purkey, 428 F.3d 738, 757 (8th Cir. 2005) (the “scandalous and perplexing nature” of
evidence that the defendant’s wife had tried to poison him “had significant potential
to confuse or mislead the jury”). Similarly here, trying to prove Tamerlan’s role in an
Tsarnaev faults (Br. 261-62) the district court for saying that evidence of the
49
Waltham murders would not only be “confusing to the jury,” but also “a waste of
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Any attempt to prove that Tamerlan was involved in these unsolved murders
would have exposed this jury to a large amount of sensational and gruesome evidence
relating to the Waltham crime scene and Todashev’s being shot by the FBI in Florida.
It would have required them to find that Tamerlan committed a dramatic unsolved
circumstantial evidence. The district court properly concluded in its ample discretion
that presentation of this evidence would have distracted the jury from the issues it had
to decide.
The question here is not whether “the district court was required to exclude the
evidence” or even whether “it was preferable to exclude it,” but whether the action
was “within the [district court’s] discretion.” United States v. Taylor, 814 F.3d 340, 363
(6th Cir. 2016). A “district court is not an automaton that can only come to one right
answer on any evidentiary issue just because the case is a capital case.” Id. Here, the
district court could reasonably conclude that the probative value of the unrelated
murders was “outweighed by the danger of creating unfair prejudice, confusing the
time.” See Add. 352. To be sure, the FDPA “makes no express mention of the
factors of undue delay, waste of time, and cumulativeness as grounds for exclusion.”
Sampson I, 486 F.3d at 42-43. Compare Fed. R. Evid. 403. But despite this omission,
“the trial court, in a capital sentencing proceeding, remains free to consider
cumulativeness.” Sampson I, 486 F.3d at 43. Trial courts accordingly retain inherent
authority to exclude evidence that would cause needless delay. The Court need not
reach the question because, even if the Waltham evidence was minimally relevant, the
concerns of jury confusion were sufficient to justify the district court’s ruling.
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Even if this Court were to find an abuse of discretion, any error on this issue
evidence in capital cases. And the record overwhelmingly shows that any error in
The FDPA directs that courts “shall not reverse or vacate a sentence of death
establishes beyond a reasonable doubt that the error was harmless.” 18 U.S.C.
Since Chapman v. California, 386 U.S. 18 (1967), the Supreme Court “has applied
harmless-error analysis to a wide range of errors.” Arizona v. Fulminante, 499 U.S. 279,
Neder v. United States, 527 U.S. 1, 8 (1999) (quotations omitted). To justify automatic
fundamentally alters the “framework within which the trial proceeds” that it “def[ies]
trial cannot reliably serve its function as a vehicle for determination of guilt or
Neder, 527 U.S. at 8-9 (quoting Rose v. Clark, 478 U.S. 570, 577-78 (1986)). The
Supreme Court has found structural error “[o]nly in rare cases,” Washington v. Recuenco,
548 U.S. 212, 218 & n.2 (2006), including Gideon v. Wainwright, 372 U.S. 335 (1963)
(complete denial of counsel); Tumey v. Ohio, 273 U.S. 510 (1927) (biased trial judge);
Vasquez v. Hillery, 474 U.S. 254 (1986) (racial discrimination in grand jury selection);
McKaskle v. Wiggins, 465 U.S. 168 (1984) (denial of self-representation right at trial);
Waller v. Georgia, 467 U.S. 39 (1984) (denial of public trial); and Sullivan v. Louisiana,
A mistaken evidentiary ruling is quite different from the errors the Supreme
Court has deemed structural. An evidentiary ruling does not make the proceeding
context of other evidence presented in order to determine whether [the error] was
The Supreme Court has specifically treated evidentiary rulings that result in the
Skipper, 476 U.S. at 5, the Court held that “evidence that the defendant would not
pose a danger if spared (but incarcerated)” is mitigating and “may not be excluded
evidence, however, the Court did not suggest that the error was structural. To the
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contrary, the Court considered, and then rejected, the State’s argument that exclusion
of the evidence was harmless. Id. at 7-8. The Court held that, under the
circumstances of that particular case, “the exclusion of the evidence was sufficiently
Similarly, in Hitchcock v. Duggar, 481 U.S. 393, 396-99 (1987), the Court ordered
that the habeas petitioner’s capital sentence be vacated because Florida law
unconstitutionally prohibited the sentencing jury and judge from considering certain
mitigating evidence introduced during the penalty phase. The Court noted that the
State had “made no attempt to argue that this error was harmless, or that it had no
effect on the jury or the sentencing judge.” Id. at 399. The Court then explained that,
“[i]n the absence of such a showing our cases hold that the exclusion of mitigating evidence
of the sort at issue here renders the death sentence invalid.” Id. (emphasis added).
Thus, both Skipper and Hitchcock presumed that erroneous exclusion of mitigating
evidence is reviewed for harmlessness, rather than considered structural error. Cf.
Satterwhite v. Texas, 486 U.S. 249, 257 (1988) (“We have permitted harmless error
analysis in both capital and noncapital cases where the evil caused by a Sixth
trial.”); Jones v. United States, 527 U.S. 373, 402 (1999) (holding that harmless-error
Although this Court has not yet weighed in, other courts of appeals have
mitigating evidence during the sentencing phase of a capital trial. 50 See, e.g., Rhoades v.
Davis, 914 F.3d 357, 367-68 (5th Cir. 2019), petition for cert. filed, No. 18-9614 (June 10,
2019); McKinney v. Ryan, 813 F.3d 798, 821 (9th Cir. 2015) (en banc); Dixon v. Houk,
737 F.3d 1003, 1011 (6th Cir. 2013); United States v. Troya, 733 F.3d 1125, 1137 (11th
Cir. 2013); United States v. Lighty, 616 F.3d 321, 363, 365-66 (4th Cir. 2010); Williams v.
Norris, 612 F.3d 941, 948 (8th Cir. 2010); Bryson v. Ward, 187 F.3d 1193, 1205 (10th
Cir. 1999). If this Court finds an abuse of discretion, it too should review for
harmless error.
error is harmless when the government proves “beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained.” Chapman, 386 U.S. at
24. The question is whether, absent the error, the jury “would have reached the same
recommendation as it did.” Jones, 527 U.S. at 404. Here, the answer to that question
Tsarnaev cites Nelson v. Quarterman, 472 F.3d 287, 314-15 (5th Cir. 2006) (en
50
banc), where the court treated as structural error jury instructions that prevented the
jury from giving full effect to mitigating evidence that had already been admitted. As
the Fifth Circuit has subsequently explained, however, harmless-error review still
applies when the question is “whether the trial judge erred in refusing to admit one
piece of mitigating evidence as irrelevant.” Rhoades v. Davis, 914 F.3d 357, 368 n.39
(5th Cir. 2019), petition for cert. filed, No. 18-9614 (June 10, 2019).
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suggesting that Tamerlan intimidated or coerced him into bombing the Boston
Marathon, much less that the Waltham murders somehow contributed to that
coercion. Thus, even if the jury had heard about Tamerlan’s alleged commission of
the Waltham murders, there would have been no basis other than speculation to
conclude that Tsarnaev committed the instant crimes out of fear of Tamerlan.
participated in the bombings and subsequent crimes willingly. He read radical Islamic
publications, including the Inspire magazine that showed how to make pressure cooker
bombs and encouraged Muslims to use bombs to “damage the enemy.” See
bomb in the middle of a crowd, within a few feet of several children. 14.App.6423;
Gov’t Exh. 22 (video). When he returned to college after the bombing, he did not
report Tamerlan to authorities or express any fear or remorse, but instead worked out
at the gym and tweeted that he was a “stress free kind of guy.” 1.Supp.App.66 (Gov’t
Exh. 1320); Gov’t Exhs. 1181, 1182, 1183 (gym videos). When his friend realized he
was one of the bombers, Tsarnaev texted back, “Better not text me my friend . . . Lol
Tsarnaev later voluntarily returned to the Boston area and joined Tamerlan in
murdering Officer Sean Collier, carjacking Dun Meng’s car, and trying to kill police
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Tamerlan was captured, Tsarnaev tried to run down officers with an SUV.
12.App.5091-92, 5097-98. And after Tamerlan was dead, Tsarnaev wrote that his
killing of “innocent people” was justified by the “evil” committed by the United
evidence, there is no reason to believe the Waltham evidence would have changed the
Finally, the Waltham evidence could have cut both ways. If jurors had known
Tsarnaev was aware that “Tamerlan was a cold-blooded killer” who “had slit three
people’s throats a year and a half earlier,” Br. 229, they could have concluded that
Tsarnaev himself was similarly cold-blooded. Tsarnaev did not report his brother’s
crimes to authorities or distance himself from his brother, even when Tamerlan spent
“cold-blooded” and would commit similar acts of violence based on his jihadist
beliefs.
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“belittled the defense’s mitigation evidence as showing merely that Tamerlan was
‘bossy,’ ‘charming,’ and ‘loud,’ and ‘sometimes lost his temper,’” Br. 247. The
government’s arguments did not suggest that Tamerlan was never violent. The
charming.” 19.App.8783; see 17.App.7741. (The defense also said at closing argument
that Tamerlan was “charming.” 19.App.8751.) But the prosecutor also pointed out
Tamerlan’s volatility: “Tamerlan was loud, flashy, in your face. The defendant was
quiet, polite and laid back. Tamerlan couldn’t stop talking about his beliefs. The
defendant kept his beliefs to himself. Tamerlan sometimes lost his temper. The
defendant knew how to keep his cool.” 19.App.8783. This was entirely accurate. It
was similarly accurate for the government to say that Tamerlan “was bossy,” “didn’t
want [Tsarnaev] to smoke, drink or do drugs,” and “wanted him to pray and go to the
mosque more often.” 19.App.8787. As the government observed, this was “a far cry
from coercion or control.” 19.App.8787. Even if the court had admitted the
Waltham evidence, the government could have made the very same arguments.
‘independently’ and ‘alone.’” Br. 241. The context makes clear that the government
was not saying Tsarnaev committed the bombings entirely on his own. See
16.App.7085 (saying Tsarnaev “walked alone down Boylston Street, knowing that his
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brother had taken up his own place at another location”); 19.App.8725 (saying
Tsarnaev “independently got the gun used to murder Officer Sean Collier” and
“independently chose the Forum restaurant as the bombing site . . . in spite of the
children”). In fact, the government argued that the bombing “was a full-on
partnership” between Tamerlan and Tsarnaev and that “[t]hey did not do the exact
same things, but they were both terrorists engaged in a joint effort.” 19.App.8798.
The exclusion of the Waltham murder evidence did not allow the government to
improperly characterize Tamerlan or minimize his role. Any error was harmless.
E. The district court did not abuse its discretion by concluding that
the details contained in the Todashev materials were not
discoverable.
Tsarnaev contends that, even assuming the district court properly excluded the
Waltham evidence, the district court violated Brady v. Maryland by denying his trial
counsel access to the report and recordings of the May 21 Todashev interview.51 Br.
274-85. He also argues that the district court erred in relying on the qualified law
enforcement privilege to deny disclosure. Br. 281-85. The district court properly
denied disclosure because the undisclosed details were neither favorable nor material
under Brady. To the extent the details were discoverable on some basis other than
As noted above, this Court granted appellate counsel access to the report of
51
that interview, and counsel relied on the details of that report in the opening brief. See
Br. 255-56, 274-75, 280.
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Brady, the court correctly concluded that they were protected by the law enforcement
investigative privilege.
Feliciano, 786 F.3d 78, 87 (1st Cir. 2015) (quoting Brady, 373 U.S. at 87). Evidence is
material “if there is a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceedings would have been different.” Kyles v. Whitley,
514 U.S. 419, 433 (1995) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)
(opinion of Blackmun, J.)). Put another way, the question is whether the non-
disclosure “undermines confidence in the outcome of the trial.” Id. at 434 (quoting
The undisclosed details of the Waltham murders were not discoverable because
punishment.” Brady, 373 U.S. at 87. They were not favorable to the defense because,
as explained above, they were not relevant for any mitigation purpose. The other
evidence provided no basis for the jury to conclude that Tsarnaev feared Tamerlan or
that the Waltham murders influenced Tsarnaev to commit the instant offenses.
Even if the details of the Waltham murders had been favorable, they were not
material. The district court properly concluded that the evidence was inadmissible
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definition not material,” United States v. Ranney, 719 F.2d 1183, 1190 (1st Cir. 1983),
unless it provides “so promising a lead to strong exculpatory evidence that there could
be no justification for withholding it,” Ellsworth v. Warden, 333 F.3d 1, 5 (1st Cir.
2003). As explained further below, the inadmissible and irrelevant details of the
Waltham murder did not provide a lead to strong exculpatory or mitigating evidence.
Tsarnaev also contends that access to the Todashev FBI 302 and recordings
would have helped him “respond to the government’s argument for the complete
preclusion of the Waltham evidence.” Br. 278. See id. at n.122. But even if knowing
the details of Todashev’s statements might have been marginally helpful when
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opposing the government’s motion in limine, evidence that is merely helpful for
neither impeaching nor exculpatory. Brady, 373 U.S. at 87. And even if it were
favorable, such evidence would not be material. See United States v. Agurs, 427 U.S. 97,
109-10 (1976) (“The mere possibility that an item of undisclosed information might
have helped the defense . . . does not establish ‘materiality’ in the constitutional
sense.”).
statements did not disadvantage him. Tsarnaev already knew “the fact and general
Finally, Tsarnaev claims that access to the Todashev materials would have
evidence that there could be no justification for withholding it.” Ellsworth, 333 F.3d at
5. But Tsarnaev does not seriously contend that the report’s details would have led to
Br. 280.
because the Waltham murders themselves are irrelevant, the details of the murders are
a fortiori irrelevant. And even assuming the murders had some minimal relevance and
details of the Waltham murders would have changed the outcome of the penalty
phase.
entirely speculative. He cannot show that the previously undisclosed details in the
FBI 302 report would have provided a “promising lead” to “strong” mitigating
Because the details of Todashev’s May 21, 2013 interview were not favorable or
material, they were not discoverable under Brady. And Tsarnaev has not asserted that
the Todashev materials were discoverable on any basis other than Brady, such as
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Accordingly, this Court need not reach the question of whether the law enforcement
States v. Stewart, 590 F.3d 93, 131 (2d Cir. 2009) (before considering the privilege
But even assuming the details of the Todashev interview were discoverable on
some basis other than Brady, the district court properly concluded that they were
protected from disclosure by the law enforcement privilege. Both this Court and the
Supreme Court have “recognized a qualified privilege for certain information related
to law enforcement activities.” Commonwealth of Puerto Rico v. United States, 490 F.3d 50,
62 (1st Cir. 2007). In Roviaro v. United States, 353 U.S. 53, 59 (1957), the Court held
encouraging citizens to report crimes. This Court has extended the law enforcement
818 F.2d 980, 1002 (1st Cir. 1987), and to “law enforcement techniques and
1002. And when ruling on the privilege, a district court must “balanc[e] the federal
The district court recognized that the Middlesex County investigation into the
Waltham murders was “ongoing” and concluded that “disclosure of the [May 21,
2013] report risks revealing facts seemingly innocuous on their face, such as times of
interfere with the ongoing state investigation.” Add.429-30. It also concluded that
the report was “not material” because its “utility . . . to the defense in building a
Tsarnaev argues that the government failed to show that disclosure “would
have endangered the ongoing Waltham murder investigation.” Br. 281. But
considering that
their own investigation into the Waltham murders. For example, Tsarnaev suggests
his counsel could have “interviewed people close to Mess and Tamerlan” and
investigated Tamerlan’s and Todashev’s financial transactions, Br. 280, actions that
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could have tipped off targets, scared off witnesses, or otherwise interfered with the
investigation.
Tsarnaev argues that because “the sole identified suspects . . . were both dead”
by the time of his penalty phase in 2015, there was “[b]y all indications . . . no case left
after Tsarnaev’s penalty phase, the Middlesex District Attorney stated publicly that the
Martin, Is the Waltham Triple Murder Investigation at a Dead End?, WGBH (Apr.
12, 2018). The district court could reasonably conclude that disclosure would
The district court was also correct in concluding that Tsarnaev’s “interest in
disclosure” of the report was low. Commonwealth of Puerto Rico, 490 F.3d at 64. As
explained above, the details contained in the report were not favorable to the defense
because they were not relevant for mitigation purposes in the absence of any evidence
that Tamerlan coerced or pressured Tsarnaev into committing the bombings. For
much the same reason, they would not have affected the outcome of the trial.
Therefore, just as they fail to satisfy the Brady standard, they fail to outweigh the
12, 35 (1st Cir. 2003) (noting that neither Brady nor Roviaro “provides grounds for
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To
justify in camera review for potential Brady information, a defendant “must make some
showing that the materials in question could contain favorable, material evidence.”
United States v. Prochilo, 629 F.3d 264, 268 (1st Cir. 2011). “This showing cannot
consist of mere speculation.” Id. at 268-69. “Rather, the defendant should be able to
articulate with some specificity what evidence he hopes to find in the requested
materials, why he thinks the materials contain this evidence, and finally, why this
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any other purpose; and (3) the evidence was not harmless. Each of those premises is
wrong. First, the testimony at issue here was relevant to establish the existence and
weight of other aggravating factors, in particular the factors that Tsarnaev caused a
grave risk of death to the surviving victims, and that he committed additional
uncharged crimes, including assault with intent to maim. Second, even if the
testimony was not admissible for any purpose other than victim impact, the FDPA
does not prohibit evidence of the impact of the capital offense on surviving victims.
Finally, even if the district court plainly erred or abused its discretion in admitting the
A. Background
In its notice of intent to seek the death penalty, the government gave notice of
harm, and loss” to the four deceased victims and their families, which was “evidenced
by the victim’s personal characteristics and by the impact of the victim’s death upon
argued that the FDPA barred victim-impact evidence about surviving victims.
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25.App.11496-97. The government responded that it did “not intend to offer victim-
impact testimony from bombing survivors during the guilt phase.” 25.App.11516.
The government argued, however, that some testimony about the “long-term effects”
suffered by victims was relevant for other purposes, including providing necessary
background and context for their testimony, proving the indictment’s allegations that
the bombings “maimed, burned, and wounded scores” of people, and explaining why
the victims could not “remember certain events” but remembered others with
his motion based on the government’s statement that it would not offer victim-impact
Three surviving victims testified on the first day of the guilt phase—Rebekah
Gregory, Sydney Corcoran, and Karen Rand. Gregory was at the finish line with her
five-year-old son Noah when the bombs exploded. 10.App.4064-65. She testified
that the explosion knocked her down and that she was unable to get up.
10.App.4066. She described the scene immediately around her: “My bones were
literally laying next to me on the sidewalk, and blood was everywhere, and pools of
BBs and nails and shrapnel . . . and people’s body parts were . . . laying everywhere.”
10.App.4066. Gregory testified that her “first instinct” was to find her son.
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10.App.4066. She could hear Noah calling “Mommy!” repeatedly, and she felt
“helpless as a mother” because she could not come to her son’s aid. 10.App.4066-67.
Lying there on the pavement, she said a prayer for Noah, and at that moment a
relative “picked Noah up and placed him down beside me, and I knew that he was
Corcoran, who was 17 years old at the time of the bombing, testified that she
was at the Marathon with her parents. She said that, after the explosion, she limped
over to the rail and passed out. 10.App.4077-79. When she woke up moments later,
men were putting “massive” pressure on her thigh and tying tourniquets around it
because her femoral artery had been cut. She felt her body “going tingly” and
“getting increasingly cold.” 10.App.4080. She knew she was “fading fast.”
10.App.4087. Corcoran was taken immediately to the medical tent, where caregivers
were “frantic” and “kept saying, ‘She’s got a femoral artery break. She has to go. She
Corcoran said she was rushed to the hospital, where doctors kept asking her for
a phone number so they could contact her family. 10.App.4087-88. Corcoran told
them she didn’t know whether her parents had survived. 10.App.4088. She said she
described waking up after surgery, seeing her father there, and learning from him that
her mother was alive, “[b]ut she doesn’t have her legs anymore.” 10.App.4089. The
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nurses wheeled Corcoran’s mother into the room, and they cried and “held hands”
and were “just appreciating that we were both still alive.” 10.App.4089-90.
Karen Rand testified that, after the bombs went off, injuring her foot and leg,
she dragged herself over to her friend Krystle Campbell and held Campbell’s hand as
she bled to death. 10.App.4100-01. Rand said that, two days later, doctors informed
her that her leg had to be amputated, and “they took [her] leg that day.” 10.App.4107.
Rand also testified that, because she had Campbell’s phone in her pocket, hospital
staff misidentified her as Campbell. Rand explained that Campbell’s parents were
initially informed that Campbell was alive, while Rand’s parents couldn’t find her at
any hospital and thought she might have died. 10.App.4109. Rand said that
Campbell’s parents were “devastated” when they discovered that, in fact, it was their
contending that the witnesses’ description of the long-term effects of their injuries
and emotional experiences with family members was not relevant for guilt-phase
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The government responded that the testimony about “the extent of the injuries
that occurred” was relevant to describe the crime and its surrounding context, and
that the testimony did not constitute “victim impact” evidence about how survivors’
injuries “affected the future of [their] li[ves].” 10.App.4118-19. The district court
Survivors Jeffrey Bauman, Roseann Sdoia, and Jessica Kensky also testified
during the guilt phase. Jeffrey Bauman said that the first explosion left him “on the
[his] left leg and squeezed it and . . . didn’t let go until [he] was . . . into the
ambulance.” 10.App.4144. Bauman testified that he thought he would die and that
he “made peace” with himself, thinking, “I had a great life . . . I had great friends and
Roseann Sdoia testified that, when the bomb went off, she knew she had lost
her leg immediately, “probably before [she] hit the ground.” 10.App.4230. She said
that “all [she] could see was blood pouring out” of “where [her] knee should have
been.” 10.App.4230-31. She initially thought that she “didn’t want to live as an
amputee,” and she “knew [she] was bleeding out,” but she resolved to “stay calm and
stay conscious because if [she] didn’t, [she] would die.” 10.App.4231. When Sdoia
woke up after surgery, she was told her leg had been amputated “above the knee.”
difference” relative to below the knee, that it had been “extremely difficult to learn
how to walk again,” and that it was “hard” in the winter “to deal with the snow.”
10.App.4236.
Jessica Kensky testified that she was at the finish line with her husband Patrick
when the explosion sent her flying “like [she] was on a rocket.” 10.App.4313. She
knew that both she and Patrick were seriously injured, and Patrick was “bleeding
really badly.” 10.App.4313-14. As she tried to put a tourniquet on Patrick with her
purse straps, a man said, “‘Ma’am you’re on fire.’” 10.App.4314. The man pushed
her to the ground to put out flames that were burning “from [her] shoulder blades all
Kensky lost both her legs. 10.App.4307. She said it was “terrifying” being a
“bilateral amputee.” 10.App.4325. She said she wanted to retain “some memory” of
her legs and wanted to be able to “paint [her] toenails” and “put [her] feet in the
sand.” 10.App.4325. Kensky also described Patrick’s injuries and how they had to
recover for weeks in separate hospitals because Patrick was being treated for a serious
infection. 10.App.4322. She said that she suffered “horrendous” pain as she endured
long-term treatment for her burns and 15 to 20 surgeries on her legs. 10.App.4324.
She said she was “in a very dark place” and that she “was really not wanting to live.”
10.App.4325-26. When she and Patrick eventually got out of the hospital, she moved
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Kensky testified that, until she brought home a service dog, she had difficulty sleeping
Corcoran, whose daughter Sydney had testified earlier, said that the bomb threw her
“up in the air,” and she “land[ed] hard.” 16.App.7099. She said she was in
“excruciating” pain as her husband applied pressure on her legs and used his belt as a
tourniquet. 16.App.7102. Corcoran’s husband told her he loved her and to “[h]old
on.” 16.App.7102. At the hospital, she felt that the “pain was too much,” and she
“wanted to die,” but she decided she needed to “be there” for her husband and
children. 16.App.7104. She described sharing a hospital room with Sydney and how
it was “heartbreaking” to see her daughter “in pain and not be able to get up and
[help].” 16.App.7107-08.
22. He argued that Corcoran’s testimony “went beyond” describing “the risk of death
from her injuries and became victim-impact testimony.” 16.App.7121. The defense
argued that, under the FDPA, the jurors “do not sit as sentence[r]s for the injuries
to . . . any of the many people that were injured that did not die” because causing
those injuries was not punishable by death. 16.App.7121. The defense acknowledged
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that they had not objected during the testimony, but argued that they could not have
The government argued that the evidence was relevant to prove that Tsarnaev
created a grave risk of death to persons other than the victims who died.
further that, for Tsarnaev to preserve a claim that particular testimony constituted
16.App.7122-23.
The district court denied a mistrial, concluding that the evidence was “relevant”
that “not every word out of a [witness’s] mouth” must be “directly relevant to a
factor” because witnesses are “allowed to give some narration and context” so “the
jury can understand the situation.” 16.App.7126. The government argued that
Tsarnaev should be required to object in “real time” so that the court could consider
overall testimony. 16.App.7126. The government also contended that the risk of the
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but it does not excuse the parties from objecting. 16.App.7122-23. The district court
Nicole Gross also testified at the penalty phase. She said that, after the
explosion knocked her down, she “knew something was wrong” and “looked down at
[her] legs” and saw that her right leg was “blown open.” 16.App.7181. She could
“feel [her] shoes just dangling by what felt like threads.” 16.App.7181. At the
hospital, she was separated from her family, was “worried” about them, and felt
procedures the victims endured, the “risks attendant to those procedures,” and the
victims’ current “medical status” were relevant to aggravating factors including “grave
The district court asked Tsarnaev’s counsel whether any authority supported
the premise that “people who are not killed but were injured by the bomb were not
victims of the capital offense.” 16.App.7242. The court noted that it was “natural” to
“regard somebody who is injured by the same bomb that killed somebody as a victim
of the bombing.” 16.App.7243. The defense responded that their authority consisted
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of two district court cases, United States v. Sampson, 335 F. Supp. 2d 166 (D. Mass.
2004), and United States v. Gooch, 2006 WL 3780781 (D.D.C. Dec. 20, 2006).
16.App.7244. The court noted that those cases were inapplicable because they
involved victim-impact evidence from separate conduct that was not part of the
capital offenses, whereas here the surviving victims were maimed in the same course
of conduct underlying the capital charges. 16.App.7244. The district court concluded
that, because this case involved “an offense which not only killed people but maimed
people,” the injured survivors “fall within the scope” of the victims for which victim-
impact evidence may be offered. 16.App.7244. The district court concluded that this
was an “additional reason” why the surviving victims’ testimony was admissible and
that, in any event, the evidence was relevant to aggravating factors, including the
the penalty phase. They described severe injuries to themselves and family members
who were with them at the marathon. 16.App.7252-54 (Whalley describing injuries to
himself, including shrapnel in his eye, and to his wife Ann); 16.App.7280-82 (Haslet-
Davis describing losing her leg, as well as her husband’s lower leg and foot injuries);
16.App.7436-37 (Woolfenden testifying that he lost his left leg and sustained extensive
burns and that his three-year-old son Leo suffred a “skull fracture,” a “laceration” on
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his head, a perforated ear drum, and “minor burns”). Whalley also testified that both
he and his wife had initially believed that the other had been killed, and when they
were brought into the same hospital room, Whalley “grabbed her arm” and “wouldn’t
after the bombing. 16.App.7274. She knew her husband was “in shock,” so she had
to “save [herself]” by crawling “along the broken glass” to get help. 16.App.7274.
She testified that her husband was not in the courtroom because he had “bravely
Woolfenden testified that, after the bombing, three-year-old Leo was “crying”
Woolfenden said he was “terrified” when Leo was taken away for treatment because
he “didn’t know if [he] was ever going to see [his] son again.” 16.App.7430.
B. Standard of review
This Court reviews the district court’s interpretation of the FDPA de novo,
United States v. Troy, 618 F.3d 27, 35 (1st Cir. 2010), and reviews “adequately preserved
I, 486 F.3d at 42. As explained further below, however, Tsarnaev failed to preserve
appeal. His challenge to the admission of that evidence is therefore reviewed for plain
errors); see Jones, 527 U.S. at 388-89. Finally, even where an objected-to error occurs at
a penalty phase proceeding, this Court should not reverse if the error was harmless
C. The district court did not plainly err or abuse its discretion by
concluding that surviving victims’ testimony was relevant and
admissible to establish the existence and the weight of other
aggravating factors.
Tsarnaev’s argument that the district court violated the FDPA by admitting
“victim impact” evidence from surviving victims rests on the mistaken premise that
the only ground on which that evidence might have been admissible would have been
wrong. As a threshold matter, however, Tsarnaev is also wrong in his belief that the
survivors’ testimony was not admissible for other purposes. The government offered
conduct created a grave risk of death to other people and was an act of terrorism—
that were unrelated to the victim-impact aggravator. The district court did not abuse
Tsarnaev does not argue that all of the survivors’ testimony about the trauma
they suffered at his hands was inadmissible. He does not dispute (Br. 328, 330-33)
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that survivors could tell the jury how the bombs injured them and describe the
prove that Tsarnaev’s conduct created a “grave risk of death” to them, as the district
court found. See 16.App.7124, 7244; 18 U.S.C. § 3592(c)(5) (defining the “grave risk
of death” statutory aggravating factor). But at various points, Tsarnaev contends, the
inadmissible victim impact evidence. Br. 317, 320. Tsarnaev has not, however,
identified any clear line that he believes marks the boundary between admissible
any bright line underscores the need to evaluate the relevance of such testimony in its
particular context.
For that reason, the district court acted within its discretion when it denied
Tsarnaev repeatedly raised the claim, both in written motions and in conferences with
the court, that victim-impact evidence from survivors was not permissible and that
that is not sufficient to preserve the challenges to particular testimony that he raises
now, and this Court should review only for plain error. See United States v. Rivera-
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Santiago, 872 F.2d 1073, 1083 (1st Cir. 1989) (“Although the judge’s ruling was
emphatic and indicated that future objections would be fruitless, defense counsel,
absent the grant of a continuing objection, could preserve an ‘error of law’ issue only
United States v. McVeigh, 153 F.3d 1166, 1199-1200 (10th Cir. 1998) (noting that,
that “went beyond the ‘immediate effects’” of the bombing, “continuing objections
generally are considered inappropriate” in this context because, due to the “variety of
testimony would not ordinarily be an issue that could be decided in a pretrial hearing
F.3d 1206 (10th Cir. 1999).61 Moreover, even if Tsarnaev had preserved objections to
the surviving victims’ testimony, he could not prevail under the applicable abuse-of-
discretion standard.
time” because the jury might hold it against him. 16.App.7121-22. But that is a risk
every trial lawyer, including prosecutors, must run in order to assert legal objections.
Moreover, any prejudice can be ameliorated, as it was here, by an instruction that the
jury should draw no inferences from objections by counsel or the court’s evidentiary
rulings. See 10.App.3941 (“An objection isn’t a signal that this is somehow really
important because they’re objecting to it. That’s not necessarily true at all.”);
15.App.6977 (“I remind you there is no significance for your purposes to any of the
rulings either admitting or excluding evidence.”); 19.App.8651 (same). Tsarnaev cited
no authority supporting his claim that he should be exempt from the
contemporaneous objection requirement.
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The FDPA states that, in the penalty phase of a capital trial, the government
“may present any information relevant to an aggravating factor for which notice has
fact that “is of consequence in determining the action” “more or less probable than it
would be without the evidence.” Fed. R. Evid. 401; see also McVeigh, 153 F.3d at 1212
(“We conclude that the appropriate relevance standard in a federal capital sentencing
hearing is the same standard used throughout the federal courts under [Rule] 401.”).
claims were irrelevant to any aggravating factor, including (1) “their reactions to facing
death”; (2) their “uncertainty about what had happened to other family members”; (3)
their “feelings of helplessness watching their injured child or partner suffer”; and (4)
“the long-term implications of becoming an amputee.” Br. 337; see also Br. 309.
the jury’s finding and weighing of aggravating factors other than victim impact.62
Tsarnaev argues that aspects of their testimony were not relevant for guilt-phase
purposes, he does not challenge the guilt-phase verdict on these grounds.
Accordingly, this brief addresses the relevance of all of the victims’ testimony for the
jury’s penalty-phase verdict, the only verdict at issue. See 19.App.8650, 8652
(instructing the jury it could consider at the penalty phase evidence that was
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Several surviving witnesses testified that they thought they might die from their
injuries. Sydney Corcoran described feeling “tingly,” “getting increasingly cold,” and
“fading fast” while she lay bleeding in the street. 10.App.4080, 4087. Jeffrey Bauman
described making “peace” with death because he “had a great life.” 10.App.4142-43.
Roseann Sdoia said she “knew [she] was bleeding out,” but she resolved to “stay calm
and stay conscious” because if she panicked she “would die.” 10.App.4231. Celeste
Corcoran testified that she was in so much pain she “wanted to die,” but she needed
grave risk of death to 1 or more persons in addition to” the victims who died. 18
U.S.C. § 3592(c)(5). The fact that the witnesses felt that they might die helps show
that they actually faced a grave risk of death. Moreover, the victims’ specific
descriptions of what that felt like and their thoughts during what could have been
their final moments made it more likely that the jury would credit the witnesses’
introduced in the guilt phase). In any event, the guilt-phase testimony was relevant to
prove the offenses charged in the indictment, including bombing a place of public use
“with the intent to cause death and serious bodily injury,” Add.23, 27; see 18 U.S.C.
§ 2332f(a)(1)(A), and malicious destruction of property “resulting in personal injury
and death,” Add.32, 36; see 18 U.S.C. § 844(i).
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trauma is relevant not only to the existence of the “grave risk” factor but also to the
appropriate weight the jurors should give it. Tsarnaev’s argument that only the
immediate effect of physical injuries is relevant to “grave risk” presumes that the
in a capital sentencing proceeding, the jurors do not just find factors; they also weigh
them. See 18 U.S.C. § 3593(e) (requiring the jury to “consider whether all the
mitigating . . . factors found to exist to justify a sentence of death, or, in the absence
of a mitigating factor, whether the aggravating . . . factors alone are sufficient to justify
a sentence of death”). Accordingly, testimony about what the victims thought and
felt as they confronted death helped the jury understand the full consequences of the
grave risk that each surviving victim faced, both in the immediate aftermath of the
bombing and as they underwent surgeries and amputations in the months and years
after the bombing. Understanding the full extent of the victims’ injuries aided the jury
determining whether a death sentence was justified. See Sampson I, 486 F.3d at 44
help the jury to determine how much weight it should give” the aggravating factors).
The testimony was also relevant to the jury’s finding and weighing of other
aggravating factors. Those factors include (1) that Tsarnaev committed the offenses
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U.S.C. § 3592(c)(9); (2) that he “targeted the Boston Marathon, an iconic event that
draws large crowds of men, women and children to its final stretch, making it
especially susceptible to the act and effects of terrorism,” 19.App.8683; and (3) that he
intent to maim, mayhem and attempted murder,” id. The fact that so many people
nearly died helps show that Tsarnaev’s crime was intended to be an act of terrorism
context to their accounts of what happened when the Tsarnaevs detonated their
bombs. As the government argued below (and the district court agreed), not “every
16.App.7126. Witnesses are “allowed to give some narration and context.” Id. The
surrounding circumstances to let them make sense of the narrowly material facts of
the crime itself.” Payne v. Tennessee, 501 U.S. 808, 840-41 (1991) (Souter, J.,
concurring); see also United States v. Masters, 622 F.2d 83, 86 (4th Cir. 1980) (stating that
evidence is admissible when it provides the context for the crime, “is necessary to a
full presentation of the case,” or is “appropriate in order to complete the story of the
crime on trial by proving its immediate context” (quotations omitted)). Even if the
witnesses’ reactions to facing death were not “directly relevant” to aggravating factors,
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it was within the district court’s discretion to find that testimony about how the
witnesses felt when they nearly died provided appropriate context to a “full
A number of survivors testified that they lost track of family members in the
chaos after the bombs exploded. Rebekah Gregory said that her “first instinct” was
she felt “panicked” at the thought of becoming “an orphan.” 10.App.4088. Karen
parents were initially told that Campbell was alive, while Rand’s parents could not
locate her at any hospital and thought she might have died. 10.App.4109.63 Nicole
Gross described being separated from her family at the hospital, feeling “worried”
about what had happened to them, and feeling “helpless and alone.” 16.App.7185.
Eric Whalley testified that he and his wife each initially thought that the other had
died, and he described their joyful reunion at the hospital. 16.App.7255. Stephen
Woolfenden said that he was “terrified” when his three-year-old son was taken away
Tsarnaev cites (Br. 322) Rand’s testimony that Campbell’s parents were
63
“devastated” to learn that it was their daughter who had died. But that testimony was
relevant to the impact flowing from a victim’s death, and Tsarnaev does not challenge
that form of victim-impact evidence.
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for medical treatment because he “didn’t know if [he] was ever going to see [his] son
again.” 16.App.7430.
most cases, family members became separated because so many victims were on the
verge of bleeding to death that they were evacuated as soon as possible. There was no
time to reunite families or to make sure that they were sent to the same hospital. See
10.App.4448-53 (describing the triage process, in which victims with critical injuries
one). The multiple family separations highlighted how “grave” the “risk” was. The
evidence therefore helped the jury determine the appropriate weight for that factor.
The victims’ uncertainty about their family members’ fate was also relevant to
show that Tsarnaev committed an “act of terrorism,” 18 U.S.C. § 3592(c)(9), and that
the . . . effects of terrorism” because of its “large crowds of men, women and
children,” 19.App.8683. For many people, nothing is more terrifying than to lose
track of one’s children or parents in a critical situation. Evidence that this occurred
underscores the terroristic effect that Tsarnaev intended to achieve. The fact that
victims felt afraid of dying, being left alone, and leaving behind their families is
concern about family members was for many witnesses their first and most important
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thought after the blast. Tsarnaev’s position would require the survivors to recount
the “narrowly material facts,” Payne, 501 U.S. at 840-41 (Souter, J., concurring), in a
wooden and artificial way. Victims could describe what they saw and the details of
their physical injuries, but not what they felt or why they reacted as they did. That
Some of the surviving witnesses testified that their own injuries left them
unable to help a loved one. Rebekah Gregory said that, right after the blast, she could
hear her five-year-old son Noah calling “Mommy!” repeatedly, and she felt “helpless
as a mother” because she could not go to him, but could only say a prayer for him
until someone set Noah down beside her. 10.App.4066-67. Jessica Kensky, who was
a nurse, described her frustration about being unable to care for her injured husband.
injured and in pain in the hospital and “not be able to get up and [help].”
16.App.7107-08. Nicole Gross said she felt “helpless and alone” at the hospital when
she was separated from her family. 16.App.7185. Stephen Woolfenden testified that,
after the bomb exploded, his three-year-old son Leo was “crying” and “screaming”
This testimony was relevant for the same reasons as the testimony about
families becoming separated. Victims’ inability to help their family members in the
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bombing’s aftermath magnified the terror that Tsarnaev sought to create. The
testimony was therefore relevant to show the full weight of Tsarnaev’s act of
terrorism, which was aimed at an event with “large crowds of men, women and
children.” 19.App.8683.
Tsarnaev suggests (Br. 309, 331) that family members’ feelings of helplessness
in the hospital long after the attacks were not directly relevant. But the aggravating
factor that Tsarnaev committed an “assault with intent to maim” required proof that
her body” with intent to “permanently disable or disfigure” the person). Accordingly,
family members’ inability to help each other in the recovery process underscored that
Tsarnaev caused permanent disabilities. Family members’ helplessness was also relevant
Several survivors described the long-term effects of their injuries. For example,
Roseann Sdoia told the jury that it made a “huge difference” that her amputation was
above the knee, which made it “extremely difficult” to relearn to walk and to “deal
with the snow.” 10.App.4236. Jessica Kensky testified that becoming a “bilateral
amputee” was “terrifying.” 10.App.4325. She said that she wanted to “paint [her]
toenails” and “put [her] feet in the sand.” 10.App.4325. She endured long-term
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treatment for her burns and had 15 to 20 surgeries on her legs. 10.App.4324. She
testified that at one point she was “in a very dark place” and that she “was really not
wanting to live.” 10.App.4325-26. Adrianne Haslet-Davis said that her husband was
not attending the trial because he had admitted himself to a mental-health facility.
16.App.7282.
Testimony about the long-term physical and mental pain and disability caused
by the attacks was relevant to the existence and weight of the grave-risk-of-death
amputations, and suicidal thoughts showed that the risk of death continued well past
the immediate aftermath of the bombing. Moreover, as explained above, the assault-
dozens of people, including small children, and left multiple amputees. The
Williams v. Chrans, 945 F.2d 926, 947 (7th Cir. 1991); see also McVeigh, 153 F.3d at 1221
that was “poignant and emotional”). The jury would have been hampered in its ability
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to determine the aggravating factors’ weight, significance, and scope if it had been
limited to considering the bare physical fact of the survivors’ immediate injuries.
deciding how to present its case.”). The district court did not err in admitting the
victims’ testimony.
D. The Federal Death Penalty Act does not prohibit testimony about
the effects of a capital crime on surviving victims.
from surviving victims in this case. The victim-impact aggravating factor the
government alleged was expressly limited to the four victims who were killed. See
1.App.138; 19.App.8682-83. The government did not argue, and the jury was not
instructed, that “victim impact” as to surviving victims was among the aggravating
factors in this case or that the survivors’ testimony could be considered for that
Tsarnaev’s guilt and to prove other aggravating factors. Accordingly, the government
never gave notice of any intent to introduce “victim impact” evidence for anyone
Tsarnaev contends that, because the survivors’ testimony was inadmissible for
any other purpose, it should be deemed “victim-impact” evidence even though it was
never offered for that purpose. But even if that were correct, Tsarnaev would be
entitled to no relief. First, Tsarnaev does not raise any claim based on lack of notice,
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and any such claim is therefore waived.64 Instead, Tsarnaev bases his claim on the
premise that the FDPA flatly prohibits victim-impact evidence as to surviving victims,
impact” evidence, Tsarnaev cannot obtain reversal on his claim that admission of that
In Payne, 501 U.S. at 827, the Supreme Court held that states may, consistent
with the Eighth Amendment, allow evidence of a crime’s impact on the victim and
the victim’s family to be admitted at the penalty phase of a capital trial. In so doing,
the Court overruled its prior decision in Booth v. Maryland, 482 U.S. 496 (1987), which
had held that victim-impact testimony was “per se inadmissible in the sentencing phase
of a capital case except to the extent that it ‘related directly to the circumstances of the
crime.’” Payne, 501 U.S. at 818 (brackets omitted) (quoting Booth, 482 U.S. at 507
n.10).
The defendant in Payne was accused of stabbing to death a mother and her
daughter, and he challenged sentencing-phase testimony about the effect of the crimes
Even if Tsarnaev had not waived the issue by failing to raise it in his opening
64
brief, any error based on inadequate notice would not prejudice him because (1) the
evidence was relevant to provide context for the victims’ fact testimony and to
support other aggravating factors, and (2) the jury would have known even without
hearing testimony that injuries such as losing a leg would significantly affect the
victims.
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on a surviving child, whom the defendant had seriously wounded. Payne, 501 U.S. at
811-13. The Court held that such evidence was admissible because “a State may
properly conclude that for the jury to assess meaningfully the defendant’s moral
counterbalancing such mitigating evidence by presenting the full extent of the harm
the defendant caused. Id. at 825-26 (quotations omitted). The Court accordingly
“allowing the jury to bear in mind that harm at the same time it considers the
In 1994, Congress passed the FDPA, setting forth the procedures applicable to
federal death penalty prosecutions. As relevant here, the FDPA requires the capital
jury to consider aggravating factors (provided they are proved unanimously and
beyond a reasonable doubt) and mitigating factors (if they are proved to any juror by a
prove at least one of the “statutory” aggravating factors listed in 18 U.S.C. § 3592, and
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Consistent with the Supreme Court’s ruling in Payne, Congress has specified
The factors for which notice is provided under this subsection may
include factors concerning the effect of the offense on the victim and
the victim’s family, and may include oral testimony, a victim impact
statement that identifies the victim of the offense and the extent and
scope of the injury and loss suffered by the victim and the victim’s
family, and any other relevant information.
18 U.S.C. § 3593(a).
Tsarnaev contends that § 3593(a), which says that the aggravating factors “may
include” evidence of the offense’s effect on the victim and the victim’s family,
prohibits “victim-impact evidence from surviving victims.” Br. 310. He reaches this
conclusion by relying on other parts of the FDPA, which use the term “the victim” in
relation to deceased victims. Br. 312-14 (citing 18 U.S.C. §§ 3591(a)(2), 3592(a)(7) and
(c)(5)).
requires the government to file a pretrial notice that “set[s] forth the aggravating
penalty phase, “information may be presented as to any matter relevant to the sentence” and
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that the government may “present any information relevant to an aggravating factor
for which notice has been provided under subsection (a).” 18 U.S.C. § 3593(c)
(emphasis added). Section 3593(a) makes clear that these aggravating factors “may
include factors concerning the effect of the offense on the victim and the victim’s
family” and “may include . . . a victim impact statement that identifies the victim of the
offense and the extent and scope of the injury and loss suffered by the victim and the
victim’s family, and any other relevant information.” 18 U.S.C. § 3593(a) (emphasis added).
Far from limiting the kinds of information that may be introduced at a capital
allows the government to prove as an aggravating factor “any matter relevant to the
allowed by Payne. See Sampson I, 486 F.3d at 44 (“The FDPA broadly provides that the
government may present any information relevant to an aggravating factor for which
notice has been provided.” (quotations and brackets omitted)). Tsarnaev’s argument
fails to account for § 3593(c)’s broad authority to admit “any” relevant evidence for
That provision’s language—“may include factors concerning the effect of the offense
on the victim and the victim’s family . . . and any other relevant information,” 18 U.S.C.
the specific categories identified in the provision. See Chevron U.S.A. Inc. v. Echazabal,
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536 U.S. 73, 80 (2002) (“[T]he expansive phrasing of ‘may include’ points directly
Encapsulating Corp. v. City of New York, 855 F.2d 48, 54-55 (2d Cir. 1988) (“We are
reluctant to read the term ‘includes’ as meaning ‘is limited to.’”); United States v. Barrett,
496 F.3d 1079, 1099 (10th Cir. 2007) (“[The FDPA’s] use of the phrases ‘may include’
and ‘any other relevant information’ clearly suggests that Congress intended to permit
the admission of any other relevant evidence . . . .”). Tsarnaev’s proposed limiting
Even if Tsarnaev were somehow correct that § 3593(a) limits the types of
otherwise relevant evidence that are admissible, his claim would still fail because the
and in federal criminal law. See, e.g., U.S. Dep’t of Justice, Guidelines for Victim and
Witness Assistance, 48 Fed. Reg. 33,774-02, 33,775 (“A ‘victim’ is generally defined as
someone who suffers direct . . . physical . . . harm as the result of the commission of a
Victims’ Rights Act); American Heritage Dictionary of the English Language (5th ed.
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2019) (defining victim as “[o]ne who is harmed or killed by another”). As the district
court found, people who are seriously injured by a terrorist bomb attack would
“natural[ly]” be considered “victims” of the terrorism offense, along with the victims
Section 3593(a)’s wording suggests that Congress had both surviving and
deceased victims in mind. The provision includes not only the loss to the victim’s
family, which was at issue in Payne, but also “the extent and scope of the injury and
loss suffered by the victim.” 18 U.S.C. § 3593(a). It would be odd to refer to the
“extent” of the victim’s “injury and loss” if the victim must always be dead.
Tsarnaev contends (Br. 312-14) that “victim” must mean a deceased victim
because that is how the word is used elsewhere in the FDPA. See 18 U.S.C.
offenses that “resulted in the death of the victim,” and offenses in which the “victim
died”); 3592(a)(7) (listing as a mitigating factor the fact that the victim “consented to
the criminal conduct that resulted in the victim’s death”); 3592(c)(5) (providing for an
aggravating factor where the defendant created a grave risk of death to one or more
persons “in addition to the victim of the offense”). In light of these provisions,
Tsarnaev invokes the “normal rule of statutory construction that identical words used
in different parts of the same act are intended to have the same meaning.” Br. 311
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That principle does not apply here. The other provisions that Tsarnaev cites
do not use the word “victim,” standing alone, to mean a person who dies as a result
of the offense. They simply refer to a “victim”—a term that can encompass both
provisions do not suggest that term “victim” means only a person who was killed. For
example, the federal kidnapping statute authorizes capital punishment “if the death of
any person results.” 18 U.S.C. § 1201(a). But that does not mean that every other use
“victim” in a way that includes survivors. Section 3593(c) says, “[T]he fact that a
victim, as defined in section 3510, attended or observed the trial shall not be
3510, in turn, provides that in “[c]apital cases,” “any victim of [the] offense” has the
right to attend “the trial of a defendant accused of that offense,” even if the “victim
may, during the [capital] sentencing hearing, testify as to the effect of the offense on
the victim and the victim’s family or as to any other [aggravating] factor.” 18 U.S.C.
which states that a “victim” includes any person who has “suffered direct physical,
applies, it has particular force for words used in close proximity. See United States v.
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Kowal, 527 F.3d 741, 746-47 (8th Cir. 2008). Tsarnaev’s reference to other sections of
the FDPA therefore provides no support for his argument that “victim” is limited to
Tsarnaev argues (Br. 314) that the legislative history supports his reading of the
statute. Because nothing in the plain text of § 3593, or anywhere else in the FDPA,
is unnecessary. See United States v. Gonzales, 520 U.S. 1, 6 (1997) (where a statute is
the legislative history Tsarnaev relies on simply reflects the same “may include”
language as the statute. See Comprehensive Violent Crime Control Act of 1991, H.
Doc. No. 102-58 (Mar. 12, 1991) (available at 25.App.11640) (noting that “aggravating
factors for which notice is provided may include factors concerning the effect of the
offense on the victim and the victim’s family” and that “[t]he effect on the victim may
include the suffering of the victim in the course of the killing or during a period of
time between the infliction of injury and resulting death”). Tsarnaev cites no
legislative history that would support his restrictive reading of “victim” under the
FDPA.
because the jury’s role at the penalty phase was to “determin[e] the appropriate
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sentence for the capital charges,” not for “the many non-capital charges Tsarnaev was
convicted of.” Br. 315. Tsarnaev is correct that the jury’s sentencing determination
was limited to the capital offenses in this case, which were all homicides. But that
does not mean, as Tsarnaev contends, that “Congress[ ] inten[ded] to limit victim
Congress did not do that in the FDPA, but instead provided for the admission of “any
18 U.S.C. § 3593(a)(2), (c). And Congress specifically authorized the use of victim-
impact evidence in § 3593(a) without limiting it to the impact on deceased victims. See
United States v. McVeigh, 944 F. Supp. 1478, 1491 (D. Colo. 1996) (“Congress expressly
provided for victim impact consideration in the [FDPA] but it did not put any limits
Tsarnaev argues (315-16) that Congress “understood” the “proper place” for
“consideration of the views of surviving victims” to be the “actual sentencing for the
non-capital crimes.” But he does not point to any language in the statute reflecting
effects upon surviving victims to the non-capital counts ignores that fact that, as the
district court found, see 16.App.7243-44, Tsarnaev committed capital offenses that
both killed and maimed victims in the same course of conduct. Nothing in the FDPA
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non-capital counts.
the effects of a homicide offense makes good sense. When a defendant commits an
offense that harms multiple victims, such as the mass-casualty terrorist attack here, the
entirely legitimate purposes” by “informing the sentencing authority about the specific
harm caused by the crime” and allowing the jury “to assess meaningfully the
defendant’s moral culpability and blameworthiness.” Payne, 501 U.S. at 825-26. Payne
addressed the emotional impact that two victims’ deaths had upon a surviving victim.
See id. at 814 (grandmother’s testimony that surviving victim “cries for his mom” and
“cries for his sister” and “doesn’t seem to understand why [his mom] doesn’t come
home”). But Payne’s reasoning applies with equal force to a crime’s effects upon
surviving victims.
excluding from the jury’s consideration the full extent of the harm flowing from his
capital offenses. If, for example, a mass bombing instantly killed a recluse with no
family or friends, but severely injured dozens of others, Tsarnaev’s position would
preclude victim-impact evidence in the penalty phase entirely. In this case, Tsarnaev’s
position is that the jury was required to consider the full range of facts about
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Tsarnaev’s own character and circumstances, but could not be told the full extent of
“there is nothing unfair about allowing the jury to bear in mind [the] harm [the
defendant caused] at the same time as it considers the mitigating evidence introduced
bombings. In McVeigh, 153 F.3d at 1216, the court found no error where the
describe the impact of the Oklahoma City bombing. The court noted that the
government could have called numerous additional witnesses to testify “about the 168
victims who died in the blast and the impact of the explosion on the numerous
Kenya and Tanzania, the government sought to introduce evidence of “serious injury
United States v. Bin Laden, 126 F. Supp. 2d 290, 300 (S.D.N.Y. 2001). The district court
held that the two factors were “duplicative” because “[b]oth function to provide the
jury with details concerning the widespread human trauma allegedly caused by the
accused’s criminal conduct.” Id. The court recognized that the “deleterious effects”
on both surviving and deceased victims were “an appropriate subject of sentencing
consideration” under the FDPA and Payne. Id. The court accordingly struck the
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duplicative “serious injury to surviving victims” factor and amended the “victim
impact evidence” factor to “include any ‘injury, harm, and loss’ suffered by victims
and their families, whether the victims are deceased or surviving.” Id. at 300-01 (emphasis
added).
These cases make clear that harm to surviving victims is “information relevant”
to the contrary. His assertion that the FDPA prohibits evidence of “the impact of
Even if the FDPA bars evidence about a capital crime’s effect on surviving
victims, and even if the evidence here was not admissible for other purposes, any
error did not prejudice Tsarnaev. There was therefore no reversible plain error (if the
error was unpreserved) or any error was harmless beyond a reasonable doubt (if the
error was preserved). See 18 U.S.C. § 3595(c)(2) (“The court of appeals shall not
harmless, . . . where the Government establishes beyond a reasonable doubt that the
The outcome of the penalty phase would have been the same even if the
acknowledges (Br. 336), the jury instructions and verdict sheet referred only to victim-
impact evidence about the four victims Tsarnaev killed. 19.App.8696. The district
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court also instructed the jury not to consider aggravating factors that the government
had not alleged. See 19.App.8682 (“You’re not free to consider any other facts in
aggravation that you may think of on your own.”). According to these instructions,
then, the jury was not permitted to consider victim-impact evidence regarding
the close of the penalty phase, the district court instructed the jury to avoid being
honored these instructions. Richardson v. Marsh, 481 U.S. 200, 211 (1987). Moreover,
the jury’s verdict shows that the outcome did not depend on the surviving-victim
testimony Tsarnaev challenges. The jury heard testimony from several surviving
victims who were injured by the bomb Tsarnaev’s brother placed at the finish line, but
it did not impose the death penalty on any of the counts that were based on the
the emotional and long-term physical effects of his crimes on the wounded survivors.
However, given the evidence jurors heard and saw of the devastating trauma that the
bombs immediately caused, which Tsarnaev concedes was admissible, the jury would
have well understood that the victims would suffer long-term physical and emotional
consequences, even if surviving witnesses had been barred from testifying to that
effect. Jurors were not likely to have been overawed by testimony confirming that
obvious fact.
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Finally, numerous other factors, including the certainty of Tsarnaev’s guilt, his
lack of remorse, his creation of a grave risk of death to many people, his killing of an
especially vulnerable eight-year-old child, and the impact on the victims who were
killed, supported imposition of the death penalty in this case. See Jones, 527 U.S. at
402-03 (inclusion of two improper aggravating factors was harmless in part because
jury found other factors sufficient to impose death sentence). The jurors unanimously
found the existence of all four statutory intent factors, six statutory aggravating
factors, and five non-statutory aggravating factors, with respect to the counts on
which the jury imposed the death penalty. Add.79-96. Tsarnaev does not challenge
the evidentiary support for any of those factors. Given the aggravating evidence
this Court should find beyond a reasonable doubt that the jury would have imposed
the death penalty even if the challenged testimony had not been admitted. See, e.g.,
Jones, 527 U.S. at 404-05 (noting that an appellate court conducting harmless-error
review of a death sentence may consider whether “the jury would have reached the
same conclusion” in the absence of the error). Indeed, lack of prejudice is even more
apparent here than in Jones. This case does not involve juror consideration of any
invalid aggravating factor, see id. at 401-02, but instead the allegedly erroneous
introduction of discrete evidence of an aggravating factor that the jurors were not
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VIII. The District Court Properly Rejected Tsarnaev’s Untimely Request for
Information to Support a Potential Motion to Suppress the Whole Foods
Video.
Tsarnaev contends (Br. 344-79) that the Court should remand for a hearing to
store a half hour after the bombing was the “fruit” of allegedly involuntary statements
Tsarnaev made to FBI agents. That contention fails for four independent reasons.
First, Tsarnaev waived his challenge to the Whole Foods evidence because he
raised it for the first time during the trial, and he cannot establish any good cause for
failing to raise it before trial. Second, given the untimeliness of Tsarnaev’s claim, the
district court acted within its discretion by declining to order the government to
provide documentary proof that the video came from a witness other than Tsarnaev.
difference because investigative records show that Tamerlan’s wife Katherine Russell
Tsarnaev (“Russell”) provided the information that led the government to search for
Whole Foods surveillance video. Fourth, even if it had been Tsarnaev’s statements,
rather than Russell’s, that led to the discovery of the Whole Foods video, the video’s
other evidence that overwhelmingly established Tsarnaev’s lack of remorse for his
crimes.
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A. Background
On April 21, 2013, six days after the bombing, two investigating agents went to
a Whole Foods store at 340 River Street in Cambridge. Doc. 1772-7 (Report of
Tsarnaev’s wife, Katherine Russell, who had informed investigators that Tamerlan had
been shopping for milk at Whole Foods between 3:00 and 3:30 pm on April 15, 2013,
the day of the marathon bombing. Doc. 1772-3 (report from FBI Orion database).66
They reviewed video recordings from surveillance cameras covering that time
window, but did not see anyone matching the description of Tamerlan Tsarnaev. Id.
Two days later, on April 23, 2013, FBI agents went to a different Whole Foods
April 15, 2013 milk purchase showing retrieval date of April 23, 2013). The agents
and the store manager reviewed surveillance video from April 15. 10.App.4468. The
in this section, are the subject of a pending (and contested) motion in the district
court to supplement the record. See Doc. 1772. The government moved to
supplement the record with two documents that had been made available in discovery
(Docs. 1772-2 and 1772-7), discovery letters documenting that discovery (Docs. 1772-
4, 1772-5, and 1772-6), and an unredacted version of one of the documents that had
been made available only in redacted form (Doc. 1772-3).
Orion is a database that the FBI used to record tips and send leads to
66
video showed Tsarnaev entering the store at 3:12 pm and buying a half gallon of milk,
the evening of April 20, about 24 hours after Tsarnaev arrived there. 23.App.10516-
17; S.Add.1, 6-7. Before they interviewed Tsarnaev, the nurse overseeing his care told
the agents that “the interview would pose no medical risk,” that Tsarnaev “had
suffered no brain injuries,” and that the antibiotics and painkillers he was taking
would not, “at their current dose, . . . inhibit his mental faculties.” 23.App.10516.
Near the beginning of the first interview, Tsarnaev admitted his responsibility
for the attacks. 23.App.10518; S.Add.1. He told the agents that he had personally
placed and detonated one of the bombs and that he did so to punish America for
any other bombs existed or that anyone else was involved in the bombings.
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23.App.10518; S.Add.1.
Tsarnaev told the agents that, on the way back to Cambridge after the
bombing, he and Tamerlan had stopped at a Whole Foods to buy milk. S.Add.10.
Before trial, Tsarnaev moved to suppress the statements he made to FBI agents
on April 20-22, while he was in the hospital recovering from his wounds.
23.App.10489. Tsarnaev argued, inter alia, that the statements were involuntary
because the agents allegedly exploited Tsarnaev’s weakened physical and mental
The government opposed, arguing, as relevant here, that the agents did not
improperly coerce Tsarnaev into making statements against his will. 23.App.10521-
30. The government pointed out that “[t]here is no rule against interrogating suspects
who are in anguish and pain” because “police may have legitimate reasons, borne of
Martinez, 538 U.S. 760, 796 (2003) (Kennedy J., concurring)). The government noted
that, at the time of the interview, law enforcement had “strong reason to believe that
the public was at risk from additional bombs, bombers, or bomb plots.”
23.App.10512. For that reason, “[f]inding out if there were other bombs, other
bombers, or others plotting similar and coordinated attacks was a public safety matter
of the utmost urgency.” 23.App.10515. See New York v. Quarles, 467 U.S. 649, 657-58
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is an ongoing “threat to the public safety”). The government also noted that
Tsarnaev told the agents that he could hear and understand them, that he could
respond notwithstanding his tracheostomy, and that he was not in too much pain.
23.App.10516. Finally, the government noted that Tsarnaev “appeared alert, mentally
case from Mincey v. Arizona, 437 U.S. 385 (1978), because the defendant in that case
was “depressed almost to the point of coma,” complained of “unbearable pain,” and
resisted giving self-incriminating statements until the police wore him down.
answered questions about the Marathon bombings, even boasting of his success in
Finally, the government stated that, although “the public-safety interview” was
“non-coercive and fully justified by the . . . public threat, the government does not
“[t]he strength of the evidence against Tsarnaev” made using the statements
“unnecessary.” 23.App.10535.
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statements, the district court denied Tsarnaev’s motion without prejudice on October
During the guilt phase, the government called Kaytlin Harper, the manager of
testified that FBI agents came to the store, told Harper they thought that “someone
[had been] in the building,” and asked to see the surveillance video for the day of the
marathon bombing. 10.App.4468. Harper testified that she reviewed the surveillance
video with the agents and that Government Exhibit 1456, which showed Tsarnaev
buying milk at Whole Foods, was an accurate copy of the original. 10.App.4468-69.
Harper also testified that a member of her staff retrieved an electronic copy of the
receipt that was generated for Tsarnaev’s milk purchase. 10.App.4471; 1.Supp.App.83
(Gov’t Exh. 1502) (Whole Foods receipt). Tsarnaev’s counsel stated that Tsarnaev
had “no objection” when the government offered the Whole Foods video and the
Two trial days later, the government called FBI agent Chad Fitzgerald to testify
about Tsarnaev’s and Tamerlan’s movements during the week of the bombing based
the Tsarnaevs’ cell phone activity and location just after the bombing, he explained,
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“[A]t the time the investigation was occurring, we had received information, I believe,
from a witness that the people involved stopped at a Whole Foods.” 11.App.4704.
“between the 3:15 and 3:30 time period,” and that he learned the following day that
investigators had located video of one of the brothers at Whole Foods. 11.App.4704-
05.
During a conference the following day, defense counsel raised the issue of the
Whole Foods video. 21.App.9725. Counsel noted that it had not occurred to her
until Agent Fitzgerald’s testimony (two days after the video was admitted without
objection) that Tsarnaev had said in his “hospital statement” that “he’d gone to
Whole Foods.” 21.App.9725; see 21.App.9728 (counsel stating she “hadn’t really
thought about . . . how the FBI got to the Whole Foods video in the first place” until
Agent Fitzgerald’s testimony). Counsel said that, in response to her inquiry, the
prosecutor had informed her that the source of the information was not Tsarnaev’s
statement but an “independent tip.” 21.App.9725-26. She noted that, “[b]ecause the
issue of voluntariness has not been resolved, the issue of fruits remains potentially a
live one.” 21.App.9726. Defense counsel acknowledged that “[w]e probably have
[the independent tip] on our database of tips,” but she contended that “to the extent
67
Defense counsel did not state a basis for these objections.
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the government is offering evidence that was derived from” Tsarnaev’s statements,
the government should provide “some notice” to give the defense “an opportunity to
raise the issue before the cow is out of the barn.” 21.App.9726.
The prosecutor responded that defense counsel’s request for notice was a
“nonissue” as applied to the Whole Foods video because the tip came from “someone
else entirely.” 21.App.9727. Regarding the “broader issue” defense counsel raised,
the prosecutor argued that it was the defense’s responsibility to preserve, before the
evidence was admitted, any argument that it was derived from the hospital statement,
The district court stated that the government should be “particularly sensitive
to the source of that kind of information, that it does not trace back to [Tsarnaev’s]
“been diligent throughout” by, for example, ensuring that “in none of [the dozens of]
search warrants did we ever put information that was derived from” the hospital
counsel were not required to timely preserve arguments that evidence derived from
the statements, then any of these “subsequent law enforcement actions that were not
derived or dependent upon those statements still might be prone to this kind of
After the district court suggested that the issue might be “a hypothetical
problem,” defense counsel stated that “[i]t would be helpful if the government could
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The court stated, “I don’t think that’s necessary under the present circumstances.”
21.App.9729.
B. Standard of review
suppress evidence before trial if the basis for the motion is reasonably available. Fed.
R. Crim. P. 12(b)(3)(C); United States v. Walker-Couvertier, 860 F.3d 1, 9 (1st Cir. 2017),
cert. denied, 138 S. Ct. 1303, 1339 (2018). “[F]ailure to move to suppress particular
evidence before trial result[s] in ‘waiver’ of any objection,” Walker-Couvertier, 860 F.3d
at 9, although the district court may grant relief from such waiver for “good cause,”
Fed. R. Crim. P. 12(c)(3). Where, as here, the basis for the motion was reasonably
available before trial and the defendant has not shown “good cause,” the claim is
waived and the defendant “is not entitled to any appellate review.”68 Walker-Couvertier,
860 F.3d at 9. While this Court has “suggested that unpreserved suppression
inclination against plain-error review.” United States v. Oquendo-Rivas, 750 F.3d 12, 17
(1st Cir. 2014) (citing United States v. Lyons, 740 F.3d 702, 720 (1st Cir. 2014); United
subsequent amendments “did not substantively change the rule” regarding the
“standard for untimely claims.” Walker-Couvertier, 860 F.3d at 9 n.1 (quotations
omitted).
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government’s discovery of the video makes “a compelling threshold showing that the
video was the confession’s fruit.” Br. 371. But the facts demonstrating that
“temporal link” were available to him before trial. Thus, Tsarnaev had all the facts
“fruit” of his allegedly involuntary statements. But he failed to raise this claim until
after trial had begun and after the district court had already admitted the video into
“fruits” argument was reasonably available, his failure to seek suppression on that
The fact that defense counsel did not think to raise this issue until Agent
Fitzgerald testified about the Whole Foods video, two days after the video was
admitted into evidence, does not mean that the basis for a suppression motion was
not reasonably available before trial. Agent Fitzgerald’s testimony that a tip about the
Whole Foods video came from “a witness” did not materially add to the information
about the source of the evidence that defense counsel already had. Where else, after
all, would the tip have come from if not a “witness”? And Tsarnaev has pointed to
nothing in Agent Fitzgerald’s testimony, other than the timing information that
Tsarnaev already had before trial, suggesting that the “witness” was actually Tsarnaev
himself. Thus the defense’s allegedly “powerful showing” that the Whole Foods
video was “the confession’s fruit,” Br. 374, is based entirely on the fact that the
government obtained the video one or two days after Tsarnaev mentioned Whole
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Foods in his second interview. Because the information establishing the timing of
those two events was available to Tsarnaev before trial, his motion was untimely
his statements was without prejudice and “subject to renewal,” 20.App.9258, that did
not excuse Tsarnaev from his obligation to challenge the Whole Foods video before
themselves. He did not seek suppression of the Whole Foods video or any other
that they derived from his statements, even where the basis of such a motion was
available before trial. See United States v. Bashorun, 225 F.3d 9, 13 (1st Cir. 2000)
(holding that the defendant waived his claim when he sought suppression on a ground
not raised in his pretrial motion to suppress because “[a] litigant seeking to suppress
evidence cannot jump from theory to theory like a bee buzzing from flower to
his suppression motion at trial, particularly as to evidence that was not mentioned in
the pretrial motion, would be inconsistent with the purpose of Rule 12’s pretrial-
motion requirement. As this Court has explained, if a defendant were “‘able to delay
such a motion until trial, he could prevent the government from appealing’ because
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jeopardy would have attached at trial.” United States v. Castro-Vazquez, 802 F.3d 28, 32
(1st Cir. 2015) (quoting United States v. Barletta, 644 F.2d 50, 54-55 (1st Cir. 1981)); see
also id. (noting that preserving the possibility of appeal is the “main purpose” of the
pretrial requirement).
Tsarnaev has not shown that the basis for his “fruits” challenge was unavailable
before trial, nor has he demonstrated any other good cause for his failure to raise that
challenge before trial. That failure constitutes waiver under Fed. R. Crim. P. 12(b)(3),
and it is therefore “fatal to the challenge that he now seeks to pursue.” Walker-
Even if there had been no waiver, Tsarnaev cannot show that the district court
abused its discretion in refusing his belated request that the government provide
documentary evidence regarding the source of the Whole Foods video. Tsarnaev did
not expressly move to suppress the video as the fruit of his statements, nor did he
seek a hearing on that question. His only explicit request for relief was his counsel’s
statement that “[i]t would be helpful if the government could provide some
information about the tip had “probably” already been provided in discovery, see
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21.App.9726 (counsel acknowledging that “[w]e probably have [the independent tip]
on our database of tips, but [it] hasn’t been pointed out to me”). 69
Given the untimeliness of this request, it was within the district court’s
video. But at the time of Tsarnaev’s request, the Whole Foods video had already been
admitted without objection, there was no indication that the “witness” Agent
Fitzgerald referred to was actually Tsarnaev himself, and the government had
Moreover, Tsarnaev did not show why he could not have made his request before
trial. In these circumstances, Tsarnaev cannot show that the district court abused its
discretion in refusing his request. See United States v. Gomez, 770 F.2d 251, 253-54 (1st
Cir. 1985) (holding that “the district court did not abuse its discretion” under Rule 12
argument with evidence that had been introduced at trial, because the defendant
“database of tips,” which was made available to the defense before trial on a stand-
alone computer, see Doc. 1772-1, included documentation showing that agents had
received information that led them to look for surveillance video from a Whole Foods
(albeit the wrong store at first)
See Doc. 1772-2 (redacted Orion report referencing the Whole Foods tip
created at 2:24 p.m. on April 21).
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“offered no legitimate explanation or excuse for his failure to present [the] evidence at
the suppression hearing.”); United States v. Kithcart, 218 F.3d 213, 219-20 (3d Cir. 2000)
independent source for the video and that Agent Fitzgerald’s testimony and the
prosecutor’s representations did not satisfy that burden. Br. 373-75 (citing Murray v.
United States, 487 U.S. 533, 540 n.2 (1988); United States v. Rose, 802 F.3d 114, 123-24
(1st Cir. 2015)). But in the cases Tsarnaev relies on, the defendant timely raised his
suppression motion before trial. Where the defendant’s mid-trial suppression claim is
based on evidence that was available before trial, it is within the district court’s
discretion to refuse the defendant’s request to consider the suppression issue. Gomez,
Even if the district court abused its discretion in refusing Tsarnaev’s untimely
allegation that the Whole Foods video was derived from his statements is incorrect.
Katherine Russell, not Tsarnaev, provided the tip that led investigators to search for
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, an agent created a
report in the FBI’s Orion database stating that, based on information received from
Katherine Russell, Tamerlan Tsarnaev was “supposed to have been shopping for milk
at the Whole Foods on River Street in Cambridge” on the afternoon of the marathon.
Doc. 1772-3 at 1 (Orion report noting that it was “created” at 2:24 p.m. EDT on
April 21). Investigators went to the River Street Whole Foods store that same day
and reviewed surveillance video, but they found nothing because it was the wrong
Whole Foods location. Id.; see also Doc. 1772-7 (Report of Investigation summarizing
agents’ review of surveillance video from the River Street Whole Foods). The
timeline of events indicates that the information received from Russell, rather than
Tsarnaev’s hospital statement, was the original impetus behind the government’s
Because the April 21 Whole Foods visit was prompted by information received
from Russell, it is reasonable to infer that Tsarnaev’s statement was not the “but-for”
cause of the April 23 visit to the correct Whole Foods store, during which agents
obtained the video. See Hudson v. Michigan, 547 U.S. 586, 592 (2006) (a
“necessary . . . condition for suppression” is that the evidence would not have been
discovered but for the violation). Alternatively, the records establish that Russell’s
statement was an “independent source,” see Murray, 487 U.S. at 538-39 (holding that
acquired through a lawful, independent source), or, at the very least, that the video
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would inevitably have been discovered if Tsarnaev’s statement had not occurred, see id.
In any event, any error in the admission of the Whole Foods video was
harmless beyond a reasonable doubt. See 18 U.S.C. § 3595(c)(2); Jones v. United States,
527 U.S. 373, 388-89 (1999). Tsarnaev concedes (Br. 375) that the video was harmless
as to the guilt phase verdict, but contends (Br. 375-79) that the video was not
harmless in the penalty phase because the prosecutor referred repeatedly to Tsarnaev’s
relaxed demeanor at Whole Foods to show that Tsarnaev lacked remorse. But the
Whole Foods video was relevant only to whether Tsarnaev lacked remorse
immediately after the bombings. See 18.App.8031. The evidence on that point was
Collier, kidnap Dun Meng, throw bombs at police, or write on a boat that his killings
were justified. Nor would he have relaxed with a friend at the gym and tweeted about
how he was a “stress free kind of guy” shortly after the bombing. Tsarnaev’s counsel
conceded at trial that Tsarnaev lacked remorse throughout the period when he and
Tamerlan were still at large; counsel argued only that Tsarnaev became remorseful
later, while he was in custody. See 19.App.8768-69. The Whole Foods video had no
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At trial, the jury saw and heard overwhelming evidence, besides the Whole
Foods video, demonstrating that Tsarnaev was not remorseful in the immediate
the afternoon of and the day following the bombing. See 1.Supp.App.64 (Gov’t Exh.
1313) (“Ain’t no love in the heart of the city, stay safe, people.”); 1.Supp.App.65
(Gov’t Exh. 1314) (“[A]nd they what ‘god hates dead people?’ Or victims of
tragedies? Lol [laugh out loud] those people are cooked.”); 1.Supp.App.66 (Gov’t
Exh. 1320) (“I’m a stress free kind of guy”). The day after the bombing, Tsarnaev
went to the gym with a friend to work out, and surveillance video showed him
chatting casually with his friend. 10.App.4476, 4480-82; Gov’t Exhs. 1181 to 1183.
While Tsarnaev’s casual manner suggested that he was untroubled by the fact
that he had recently killed or maimed dozens of people, the more powerful evidence
that he lacked remorse was his decision to continue his terrorist rampage three days
later. With Tamerlan, he murdered Officer Sean Collier, kidnapped Dun Meng and
drained Meng’s bank account, and attacked the police in Watertown with bombs.
Then, entirely on his own, he tried to run over the officers with Dun Meng’s SUV.
Those are not the actions of a man feeling sorry about the bombing.
If there could be any doubt that Tsarnaev had no regrets about the murders,
Tsarnaev removed it by writing a justification for his terrorist attacks while he was
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hiding out in a winterized boat. Although Tsarnaev wrote that he did not “like killing
innocent people,” he declared that his killings were righteous and justified in order to
punish the evil deeds of the United States. 11.App.4556-57. He praised Tamerlan as
a martyr, chastised the United States government for killing Muslims, and proclaimed
himself a mujahideen who could “look into the barrel of [a] gun and see heaven.”
hours and days after the bombing. His nonchalance at Whole Foods was cumulative
of that evidence, and its admission was harmless. This case therefore bears no
resemblance to United States v. McCullah, 76 F.3d 1087 (10th Cir. 1996), relied on by
Tsarnaev (Br. 375-76, 379), where the inadmissible statements “were the only
while he was carrying out his crimes and while hiding in the boat. See 19.App.8768-69
(telling the jury that “[i]t’s okay if you make th[e] finding” that Tsarnaev “was not
remorseful during the time of the crime” up through when he “wrote in the boat”).
“The critical thing,” counsel argued, “is that Dzhokhar is remorseful today. He’s
grown in the last two years.” 19.App.8769. Whether Tsarnaev lacked remorse while
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he was still committing the crimes was never in dispute—the defense theory was that
he became remorseful later, while he was in custody and awaiting trial. But the Whole
Foods video was irrelevant to whether Tsarnaev developed remorse during his time in
custody.
credibly claim that he felt remorseful at the same time he was tweeting about his
freedom from stress, killing Officer Collier, kidnapping Dun Meng, hurling bombs at
police, and proclaiming in his boat manifesto that his terrorist attacks were righteous
punishment for America’s misdeeds. Tsarnaev’s actions may or may not have spoken
louder than his words, but on the question of Tsarnaev’s pre-arrest lack of remorse,
the jury had the benefit of both. Tsarnaev’s murderous deeds and his defiant
declaration showed unmistakably that he felt no remorse in the days following the
bombing. Because the evidence of this fact was overwhelming and uncontested, the
admission of the Whole Foods video was harmless beyond a reasonable doubt.
expert testimony that mentioned the Islamic State (ISIS) terrorist organization and
during the government’s guilt-phase closing argument that juxtaposed the audio of an
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Islamic song (nasheed) with pictures of Tsarnaev and the bombing victims, and
(c) displaying during the penalty-phase opening posters of the four homicide victims
beside a still photograph of Tsarnaev raising his middle finger to a security camera in a
detention cell. The evidence and arguments Tsarnaev challenges were proper, and
ISIS and the Syrian conflict were insufficiently probative and unduly prejudicial under
1. Background
During the guilt phase, the government called Dr. Matthew Levitt as an expert
of cases. 13.App.5871; see, e.g., United States v. El-Mezain, 664 F.3d 467, 489, 515-16
(5th Cir. 2011). The Supreme Court has relied on his work. 13.App.5871; see Holder v.
The government offered Levitt’s expert testimony to help the jury understand
the jihadist materials and worldview that Tsarnaev adopted, as well as the manifesto
Levitt’s testimony, Tsarnaev renewed a motion in limine he had filed before trial
seeking to preclude expert testimony about jihadist materials unless the government
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could show that Tsarnaev “personally endorsed and supported” the views expressed
exclude the testimony categorically and ruled that Levitt could “testify about the
particular prominent figures.” 13.App.5877. But the court recognized that the
potential risk of unfair prejudice was “an important consideration,” and the court
cautioned the government not to “step too far” in questioning Levitt. 13.App.5875.
Levitt explained to the jury the concept of the “global jihad movement.”
rather was based on an “idea” going back “several decades” that “there is a need for a
global effort on behalf of Muslims to unite as a nation” and to “defend itself” through
“acts of violence.” 13.App.5882. Levitt said the movement’s ideology permitted the
killing of innocents and focused its anger on the United States. 13.App.5885-88.
Levitt explained that, while the global jihad movement had in the past recruited
followers to travel to foreign battlefields to fight for the cause, it had more recently
attacks “at home,” Levitt explained, has “become a major theme of radical
propaganda.” 13.App.5893.
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Levitt explained that this was true not only of “al-Qaeda,” but “now [also] the
ISIS, but the district court ruled that “[a]s . . . general background I think it’s all right.”
13.App.5894. Levitt then stated that “ISIS is the latest incarnation of this global jihad
movement.” 13.App.5894. He explained that ISIS both fought and cooperated with
al-Qaeda. 13.App.5894. He explained further that “ISIS, like al-Qaeda, has glossy
magazines” and “very impressive online radical and radicalization literature” telling
supporters “you don’t have to come [to a foreign battlefield] – just do something back
home.” 13.App.5894-95.
Later in his testimony, Levitt described how the conflict in the Russian republic
of Chechnya had become a “rallying cry” that jihadists used to “radicalize people.”
13.App.5913. Levitt then testified that the “Syrian conflict,” which had begun “four
years” previously in 2011, had likewise “become a rallying cry around the world.”
discussion of Syria that goes beyond the date” of the indictment’s allegations.
13.App.5914. Levitt explained that “[s]ticking even to the first two years of the Syrian
conflict two years ago,” there were “different things that drew jihadis to this conflict,”
including “jihadi ideology and want[ing] to go fight with the next incarnation of al-
Qaeda.” 13.App.5914.
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2. Standard of Review
Because the trial court “virtually always is in the better position to assess the
admissibility of the evidence in the context of the particular case before it,” a district
court’s “striking . . . of the Rule 403 balance between probative value and prejudicial
effect should not be disturbed unless an abuse of discretion looms.” United States v.
Mehanna, 735 F.3d 32, 59 (1st Cir. 2013) (quotations omitted). The “wide discretion”
that district courts generally enjoy for evidentiary determinations “is particularly true
with respect to Rule 403 since it requires an on-the-spot balancing of probative value
and prejudice.” Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 384 (2008)
(quotations omitted).
Under Federal Rule of Evidence 403, a district court may “exclude relevant
prejudice.” Mehanna, 735 F.3d at 59 (quoting Fed. R. Evid. 403). In this context,
basis, commonly, though not necessarily, an emotional one.” Old Chief v. United States,
Levitt’s expert testimony about the global jihad movement was relevant to help
the jury understand jihadist materials that were, in turn, highly probative as to
aggravating factor that Tsarnaev “targeted the Boston Marathon, an iconic event that
draws large crowds of men, women and children to its final stretch, making it
especially susceptible to the act and effects of terrorism”); see also Mehanna, 735 F.3d at
60 (defendant’s jihadist materials were admissible to show his “motive and intent”).
In the context of that testimony, it was within the district court’s discretion to allow
Levitt to describe ISIS and its propaganda as a more recent manifestation of the
global jihad movement. That testimony was admissible to help the jury understand
the breadth and scope of the global movement that Tsarnaev saw himself as
advancing.
There was little danger of unfair prejudice. The totality of the ISIS testimony
no ISIS videos, photographs, or audio. Neither Levitt nor any other witness
suggested any connection between Tsarnaev and ISIS other than the “commonality . .
the jihadist movement is not the sort of evidence that is liable to inflame the jury’s
passions. Courts have routinely rejected Rule 403 challenges to far more potent
evidence. See Mehanna, 735 F.3d at 60-61 (rejecting Rule 403 challenge to jihadist
civilians); El-Mezain, 664 F.3d at 509-10 (rejecting Rule 403 challenge to images of
support to Hamas); United States v. Abu Jihaad, 630 F.3d 102, 113 n.12, 133-34 (2d Cir.
2010) (admitting terrorist videos defendant had ordered and materials from websites
he had visited as relevant to motive and intent, even though defendant had not yet
received the videos and government could not prove he actually viewed the website
materials).
Tsarnaev contends (Br. 396-98) that the ISIS testimony was irrelevant because
ISIS had only just come into being at the time of the Boston Marathon attacks. That
contention assumes that ISIS was a distinct, wholly new entity that had nothing to do
with the global jihad movement to which Tsarnaev subscribed. 70 But Levitt’s central
point was precisely the contrary. His expert opinion was that various separately
organized terrorist groups such as regional al-Qaeda affiliates and ISIS itself arose out
the same ideas as the other terrorist groups and leaders Levitt described, testimony
about ISIS could help the jury understand the movement’s characteristics, goals, and
destructive consequences. Cf. United States v. Felton, 417 F.3d 97, 101-02 (1st Cir.
2005) (“Unfortunately for the defendants, evidence of their [white supremacist] beliefs
In addition, the jury could properly consider during the penalty phase
evidence about terrorism that occurred after the Boston Marathon in 2013 because
some mitigating and aggravating factors referred to possible terrorist threats in the
commit, incite, or facilitate any acts of violence in the future” while serving a life
factor that Tsarnaev had “made statements suggesting that others would be justified
in committing additional acts of violence and terrorism against the United States.”
Add. 86. 71 Both of those factors turn, at least to some extent, on the status of the
threat posed by the global jihad movement after the Boston Marathon attacks.
Tsarnaev contends (Br. 400-01) that this Court should not defer to the district
court’s decision because the court failed to conscientiously balance the proffered
evidence’s probative value against the risk of prejudice. Tsarnaev is incorrect. At the
beginning of Levitt’s testimony, the district court invited defense counsel to renew
The fact that the jury did not find this aggravating factor, Add.86,
71
undermines Tsarnaev’s claim that the jury was swayed by anti-Islamic religious
prejudice.
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their objection, and the court engaged in a colloquy with counsel about the
specifically noted that “[Rule] 403 is an important consideration” and cautioned the
Levitt’s brief references to ISIS as “general background” shows that, in the court’s
judgment, those references were probative and not unfairly prejudicial because they
were part of the expert’s explanation of the global jihad movement’s broader context
and did not constitute an attempt to assert any direct connection between Tsarnaev
and ISIS. That on-the-spot judgment was reasonable and entitled to deference. See
circumstances—will we, from the vista of a cold appellate record, reverse a district
court’s on-the-spot judgment concerning the relative weighing of probative value and
unfair effect” (quotations omitted)); United States v. Shinderman, 515 F.3d 5, 16-17 (1st
Cir. 2008) (noting that balancing judgments under Rule 403 are “typically battlefield
more sensational or disturbing than the crimes” with which the defendant has been
charged. See United States v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990); see also
United States v. Smith, 727 F.2d 214, 220 (2d Cir. 1984) (essential inquiry is whether
Levitt’s testimony about ISIS was detached, academic, and dispassionate. It was not
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the face of the evidence that the jury saw and heard about Tsarnaev’s terrorist attack,
including his own explanation for why he did it, there was no realistic possibility that
Tsarnaev’s reliance on United States v. Al-Moayad, 545 F.3d 139 (2d Cir. 2008), is
Al-Moayad because “[i]t is hen’s-teeth rare that two cases involving different parties,
held that the district court should have excluded a witness’s description of his
visiting the camp, because there was no connection between the witness and the
defendant and the witness went far beyond his proffered purpose of merely
defendant’s actions emanated from views” that aligned with terrorism. Mehanna, 735
F.3d at 62.
Even assuming the district court abused its discretion by permitting Dr. Levitt
to testify about ISIS, the error was harmless. See 18 U.S.C. § 3595(c)(2); Jones, 527
U.S. at 402-05. The testimony was brief, academic in tone, and unemotional. It was
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entirely contained within two transcript pages. The government did not mention ISIS
in its closing argument. There is no indication that the testimony about ISIS inflamed
the jury.
13.App.5906-09, and lectures by Anwar al Awlaki, who was himself associated with al-
Qaeda, 13.App.5907, 5926; 1.Supp.App.61 (Gov’t Exh. 1266). Any suggestion that
Tsarnaev was inspired by another radical jihadist group (ISIS) would not have affected
Moreover, the jurors unanimously found the existence of all four statutory
intent factors, six statutory aggravating factors, and four non-statutory aggravating
factors for the counts on which the jury imposed the death penalty. Add. 79-96.
Tsarnaev does not challenge the evidentiary support for any of them. Given the
Tsarnaev’s large-scale terrorist attack on dozens of people, this Court should find
beyond a reasonable doubt that the jury would have imposed the death penalty even if
the brief, guilt-phase testimony about ISIS had been excluded. See, e.g., Jones, 527 U.S.
sentence may consider whether “the jury would have reached the same conclusion” in
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presentation that combined an audio clip of an Islamic song with photos of Tsarnaev
1. Background
During closing argument at the guilt phase, the prosecutor argued that
Tsarnaev and his brother had been “radicalized to believe that jihad was the solution
Tsarnaev’s radical beliefs, which included Tsarnaev’s boat manifesto, as well as his
Tsarnaev watched, listened to, and read on his computer and other devices.
15.App.6923. The government reminded the jury that after Tsarnaev and his brother
carjacked Dun Meng, they “went back to Watertown” to get “a CD containing those
jihad nasheeds on it” for some “portable inspiration” as they prepared to take Dun
The government also noted that Tsarnaev created a twitter account with the
explanation for why he used that handle: “Ghuraba means stranger,” Tsarnaev wrote.
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“Out here in the West, we should stand out among the non-believers.” 15.App.6926.
Later in the argument, the government stated that Tsarnaev had “murdered
four people” and “wounded hundreds” in order to “make a statement” and to “be a
terrorist hero.” 15.App.6931. The government then stated, “[t]his is how the
32; Add.248. Five slides of the presentation were accompanied by audio of a nasheed,
played for up to 19 seconds. DE 1744, at 3-4. The five slides contained (1) a picture
of bomb-making instructions from Inspire magazine (Gov’t Exh. 1142-091 at 33); (2) a
photograph of Tsarnaev sitting in his room in front of a black flag with Arabic script
(Gov’t Exh. 1341); and (3) three photographs of the scene at the finish line in the
aftermath of the bombing (Gov’t Exh. 9, 12, 16). See 1.Supp.App.5-6, 8, 67;
2.App.210.
After the 19-second audio track ended, the prosecutor said, “But this is the
cold reality of what his crimes left behind.” 15.App.6932. The presentation then
Gov’t Exh. 17 (showing Krystle Campbell and Karen Rand lying together after the
blast), and Gov’t Exh. 20 (Jeffrey Bauman after the blast). Add.CD.ExcerptPP; see
1.Supp.App.9-10.
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After the government concluded its closing argument, Tsarnaev moved for a
consisting of “the photo montage with the nasheed playing in the background” was
The government responded that both the audio file and the photographs had
previously been admitted into evidence and that Tsarnaev “consumed these audio
files” on all of his devices. Add.252-53. The government explained that the title of
the audio, “‘Ghuraba’ which is ‘Stranger,’” was “a theme that we’ve heard throughout
the entire case” and reflected Tsarnaev’s belief that he was “one of . . . a small
percentage of people in the [Muslim] faith who believes in terrorism.” Add.253. The
government argued that the combination of the audio and photographs had “a
legitimate purpose” because it “allow[ed] the jury to determine” the “defendant’s state
of mind, his radicalization,” and his “perspective” on the “horrific acts of terrorism”
he committed. Add.253. The government noted that its terrorism expert witness, Dr.
Levitt, had “explained the significance of . . . these nasheeds,” and that Tsarnaev’s
writings in the boat were consistent with the nasheeds and the other terrorist materials
The district court agreed that these arguments reflected “the government’s
radicalization position,” and that the government’s audiovisual presentation “was not
improper.” Add.254.
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2. Standard of Review
its closing or rebuttal. United States v. Nelson-Rodriguez, 319 F.3d 12, 38 (1st Cir. 2003);
United States v. Glantz, 810 F.2d 316, 320 n.2 (1st Cir. 1987).
rights to a fair trial . . . .” United States v. Santos-Rivera, 726 F.3d 17, 27 (1st Cir. 2013).
Court first considers whether the government’s actions were improper. United States v.
Duval, 496 F.3d 64, 78 (1st Cir. 2007). If they were, the Court asks whether the
misconduct “so poisoned the well that the trial’s outcome was likely affected.” United
States v. Vázquez-Larrauri, 778 F.3d 276, 283 (1st Cir. 2015) (quoting United States v.
Kasenge, 660 F.3d 537, 542 (1st Cir. 2011)). In making that determination, the Court
considers “(1) the severity of the prosecutor’s misconduct, including whether it was
deliberate or accidental; (2) the context in which the misconduct occurred; (3) whether
the judge gave curative instructions and the likely effect of such instructions; and (4)
the strength of the evidence against the defendant.” Id. (brackets omitted) (quoting
Kasenge, 660 F.3d at 542). “The remedy of a new trial is rarely used; it is warranted
preponderates heavily against the verdict.” United States v. Rodríguez-De Jesús, 202 F.3d
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482, 486 (1st Cir. 2000) (quoting United States v. Gonzalez-Gonzalez, 136 F.3d 6, 12 (1st
Cir. 1998)).
defendant’s criminal conduct, so long as the government does not cross the line into
improperly seeking to inflame the jury’s passions through gratuitously pejorative and
inflammatory argument. See United States v. Rodriguez-Estrada, 877 F.2d 153, 159 (1st
Cir. 1989). The government has “broad latitude in the inferences it may reasonably
suggest to the jury during summation.” United States v. Zackson, 12 F.3d 1178, 1183
consisted of photographs and an accompanying audio file that had all been admitted
into evidence. See, e.g., United States v. De Peri, 778 F.2d 963, 979 (3d Cir. 1985) (noting
that a district court may permit the government to use visual aids at argument). By
showing those exhibits together, with the explanation that “[t]his is how the
defendant saw his crimes,” Add. 248, the prosecutor invited the jury to infer that
Tsarnaev saw the Boston Marathon bombing as an act of terrorist propaganda. The
government’s argument about Tsarnaev’s motive was consistent with the library of
13.App.5916-39, 5945-49, as well as his own “Ghuraba” twitter account and his
writings in the boat. See United States v. Young, 470 U.S. 1, 16 (1985) (noting that claims
of improper argument must be reviewed in the context of “the entire record”); United
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States v. Arias-Izuierdo, 449 F.3d 1168, 1177-78 (11th Cir. 2006) (rejecting claim of
photograph that had been admitted into evidence). The presentation was well within
the latitude afforded prosecutors during closing argument. See United States v. Vanvliet,
542 F.3d 259, 271 (1st Cir. 2008) (noting government’s “considerable latitude” to
“argue the evidence and any reasonable inferences”); United States v. Wall, 130 F.3d
photographs and audio did not somehow transform the evidence into an
recognized, the presentation was tied to the trial evidence about Tsarnaev’s
radicalization. Combining the nasheed with the photographs of Tsarnaev, the black
flag, and the Inspire bomb instructions allowed the jury to see and hear the
interconnected elements of the jihadist worldview that inspired the bombing. The
prosecutor thus used the presentation for a proper purpose—to argue that Tsarnaev’s
exhibits in order to support proper argument. In United States v. McGhee, 532 F.3d 733
(8th Cir. 2008), the Eighth Circuit held that the district court did not abuse its
containing a photograph of the robbery suspect, taken at the time of the robbery, with
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an image of the defendant “in a similar pose, inserted next to the suspect.” Id. at 741.
The court explained that “[a]ll the photographs in the collage were previously
admitted into evidence. And although the collage included the ultimate conclusion—
that the bank robber [wa]s [the defendant]—this was not unfairly prejudicial [because]
omitted).
Tsarnaev is incorrect in asserting (Br. 405) that the nasheed was “unconnected
to the events of April 15.” The nasheed was saved to multiple folders on a computer
found in Tamerlan’s home that Tsarnaev used to browse the Internet. 13.App.5692,
5857. See 1.Supp.App.46-48 (Gov’t Exh. 1143-05) (file listing); Gov’t Exh. 1143-026
(“Ghurabaa” music video). The nasheed chanted the word that Tsarnaev had chosen
as his Twitter display name. 1.Supp.App.61; 15.App.6926. Dr. Levitt discussed the
5934. And, as the prosecutor reminded the jury at argument, the Tsarnaevs
interrupted their carjacking of Dun Meng to drive back to Watertown to get their CD
containing nasheeds before executing their plan to drive down to New York.
15.App.6910. They then played the CD in Dun Meng’s car while the carjacking was
in progress, minutes before the brothers’ showdown with police in Watertown. See
11.App.4964 (Dun Meng testifying that the Tsarnaevs played a CD with religious
music while driving in his Mercedes). Thus there was substantial evidence in the
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record for the government’s assertion that the Tsarnaevs used nasheeds as “portable
inspiration.” 15.App.6910.
Tsarnaev contends that the juxtaposition of the jihadist music and imagery with
“function of the acts that the defendant[ ] engaged in.” Felton, 417 F.3d at 103.
Tsarnaev’s contention (Br. 402-03) that the audiovisual display was too “emotional
and frightening” founders on the fact that terror was the explicit purpose and
inevitable consequence of his attacks. As this Court has recognized, terrorism cases
generally involve emotional and frightening evidence. See Mehanna, 735 F.3d at 64
evidence was admissible because “much of this emotional overlay is directly related to
the nature of the [terrorist] crimes” (quotations omitted)). “It should not surprise a
civilized people.” Id.; see also id. (“Terrorism trials are not to be confused with high tea
at Buckingham Palace.”); El-Mezain, 664 F.3d at 511 (noting that, in a terrorism case,
“it is inescapable . . . that there would be some evidence about violence and terrorist
activity”). If that is true of Mehanna and El-Mezain, where the defendants themselves
did not commit any violent acts, it is all the more reasonable to expect emotionally
charged evidence and argument in this case, where Tsarnaev participated in terrorist
attacks that killed four people and grievously injured dozens more.
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poison the well that the trial’s outcome was likely affected. Vázquez-Larrauri, 778 F.3d
at 283. First, the allegedly improper juxtaposition was limited in scope because it
lasted for, at most, 19 seconds. See Doc. 1744 at 3-4; see also United States v. Zehrbach,
47 F.3d 1252, 1267 (3d Cir. 1995) (“the comments at issue were but two sentences in
a closing argument that filled forty pages of transcript”). Moreover, the nasheed was
played during summation, not rebuttal, giving Tsarnaev the opportunity to blunt any
effect during his own closing argument. See 15.App.6947 (defense closing argument
noting that the government “just played, to tug on your heartstrings, some nasheeds
. . .”). More importantly, the government played the nasheed only at the guilt-phase
closing argument, but Tsarnaev challenges its alleged effect solely on the penalty-
phase verdict. Br. 405, 410-15. Any effect of the nasheed was likely dissipated, if not
arguments, that the jury saw and heard before it began deliberating at the close of the
penalty phase.
In addition, the district court’s instructions to the jury reduced any risk that the
nasheed affected the jury’s penalty phase verdict. At the close of the penalty phase,
the court instructed the jury to avoid being swayed by passion or prejudice.
19.App.8695-96. The district court also instructed the jury that the arguments of
counsel did not constitute evidence. 15.App.6976, 19.App.8650-51; see also United
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States v. Mikhel, 889 F.3d 1003, 1056 (9th Cir. 2018) (finding no reversible plain error
instructed that the government’s argument was neither evidence nor law; that it must
avoid the influence of passion or prejudice; and that it must weigh all aggravating and
mitigating factors”), petitions for cert. filed, Nos. 18-7489 (Jan. 14, 2019), and 17-7835
(Feb. 4, 2019).
Moreover, as required by the FDPA, see 18 U.S.C. § 3593(f), the district court
instructed the jury that it could not consider Tsarnaev’s religious beliefs or national
as the FDPA also requires, the jury in its verdict specifically certified that
Tsarnaev . . . was not involved in reaching [the jurors’] individual decision.” Add.98.
The jury further certified that each of them, “as an individual, would have made the
Finally, the content of the nasheed, which contained only a single word, was
not by nature inflammatory, and in any event it was far less inflammatory than the
manifesto. See Mikhel, 889 F.3d at 1056 (finding that improper comments at closing
argument were not “nearly as inflammatory as the graphic evidence of the murders, or
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as powerful as the extensive victim impact testimony, which was quite properly before
the jury” (quotations omitted)); Felton, 417 F.3d at 103 (no error in referring to
defendant as a “terrorist” where the term was “a function of the acts that the
defendant[ ] engaged in”). In the context of this case, where the evidence of
Tsarnaev’s devotion to radical jihadist ideology was overwhelming and where his guilt
for horrific terrorist attacks that killed four people and wounded dozens was
Tsarnaev also claims (Br. 408-410) that the government committed misconduct
Tsarnaev’s victims next to a still image of Tsarnaev raising his middle finger at a
1. Background
On July 10, 2013, Tsarnaev was brought to the federal courthouse for an
climbed up on a bench near the security camera and flashed a “V” sign (with his palm
facing inward) and then his middle finger at the camera. 16.App.7294-95, 7309;
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U.S. Marshal confronted him and said that such behavior “was not going to be
Before the penalty phase, the government informed the defense that it intended
to introduce a still shot of Tsarnaev holding up his middle finger (Gov’t Exh. 1595)
and that it intended to use posters of that still shot and of photographs of the
objected to the introduction and use of the still shot on the basis that it was
misleading and more prejudicial than probative. Add.359, 367; 25.App.11582. After
reviewing the video from which the still shot was taken, the district court concluded
that it was “admissible” and that “the video can be shown to contextualize it.”
Add.365-67. Tsarnaev’s counsel also noted that the prosecutor intended to “use some
photographs of the victims in her opening” and observed that “it seems like the Court
ought to rule on the admissibility of those photographs if they’re not ones that are
already in evidence.” Add.368. The district court said it was excluding the
government’s “montages” of victim pictures as “a little too emotional” but said the
three-foot by four-foot photographs of Lingzi Lu, Krystle Campbell, Sean Collier, and
Martin Richard. Add.376. A fifth easel in the middle was covered by a black cloth.
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16.App.7090; Doc. 1744 at 4 (stipulation). Near the end of the statement, the
prosecutor said:
On July 10th, 2013, almost three months after Dzhokhar Tsarnaev had
murdered Krystle Marie Campbell, Lingzi Lu, Martin Richard, and
Officer Sean Collier, he was here in this courthouse. He knew the
United States had charged him for his crimes. In the room that he was
in, there was a video camera. Dzhokhar Tsarnaev was alone. There was
no brother with him. And once more, just as he had done with the boat
on Franklin Street, he had one more message to send.
16.App.7089-90. The prosecutor then pulled the black cloth off the middle easel to
concluded:
Thank you.
16.App.7090.
keeping” that the prosecution had displayed the pictures during the opening.
Add.376. Counsel asserted that the “prejudicial” and “inflammatory” effect “of what
we think was an out of context and . . . quite distorted still [shot] from the cell block
was greatly enhanced . . . by its juxtaposition between these very attractive and
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touching photographs of the victims in life.” Add.376-77. But counsel did not
request any additional relief, and the court did not comment on the issue. Add.376-
77.
2. Standard of review
Tsarnaev failed to preserve his argument that the government’s use of photo
counsel objected before the penalty phase to the admission of the holding-cell photo
and to its use in the government’s opening. Add.359, 367; 25.App.11582. After the
government’s opening, the defense noted for “record-keeping” purposes that the
government had displayed the photo alongside photos of the homicide victims and
noted the defense’s “view” that the holding-cell photo’s “prejudicial” and
victims’ photos. Add.376-77. But counsel neither claimed that the government
claim. See United States v. Montas, 41 F.3d 775, 782-83 (1st Cir. 1994) (objection on
different basis does not preserve error); United States v. Del Toro-Barboza, 673 F.3d
1136, 1152 (9th Cir. 2012) (objection for vouching did not preserve prosecutorial-
limited to plain error. United States v. Peña-Santo, 809 F.3d 686, 694 (1st Cir. 2015). To
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“juxtaposing an image of Tsarnaev raising his middle finger in a jail cell with images of
the homicide victims.” Br. 408. He argues that the government’s statement
less plainly so. Contrary to Tsarnaev’s repeated claims (Br. 40, 381, 389, 392, 408-09),
the prosecutor never said that Tsarnaev’s obscene gesture was a message “to his
victims.” Br. 381. Rather, the prosecutor explained that Tsarnaev’s obscene gesture
at the courthouse “almost three months” after the bombing was intended to convey
the same “message” that he sought to convey in his written manifesto in “the boat on
Franklin Street.” 16.App.7089-90. That “message” was that the bombings were
justified by a purported religious obligation to wage jihad against the United States.
See 11.App.4556; 13.App.5941 (statement in the boat that “[ou]r actions came with a
boat). The prosecutor argued Tsarnaev’s hand gesture showed that, even after plenty
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16.App.7090.
Tsarnaev’s argument hinges on the fact that his obscene gesture was displayed
alongside the victims’ pictures. From this, he draws the inference that the “message”
the prosecutor referred to was directed at Tsarnaev’s victims. But the Supreme Court
has observed that “a court should not lightly infer that a prosecutor intends an
ambiguous remark to have its most damaging meaning or that a jury, sitting through
lengthy exhortation, will draw that meaning from the plethora of less damaging
interpretations.” Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974). That is especially
boat, which was a message to the United States, not his victims personally. See
11.App.4555-57. The gesture showed that, three months after the bombing and
misplaced given that the government informed the defense beforehand of its intent to
use these pictures during its opening statement. See Add.359, 367-68. Two of the
victims’ photos had already been admitted into evidence. See 1.Supp.App.82, 91
(Gov’t Exhs. 1501, 1601-28). And the district court specifically ruled in advance that
the holding-cell photo and the remaining photos were admissible. Add.367. The
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decision to use the photos in this context is hardly the kind of deliberate misconduct
In any event, Tsarnaev cannot show that the alleged misconduct “so poisoned
the well that the trial’s outcome was likely affected.” Vázquez-Larrauri, 778 F.3d at
283 (quoting Kasenge, 660 F.3d at 542). This is so for a number of reasons.
First, any prejudicial effect was minimal in light of the other evidence in this
case. The gesture was crude and defiant, but hardly an uncommon sight for most
Americans. It was far less dramatic or prejudicial than other types of evidence that
reversible error. See Strong v. Roper, 737 F.3d 506, 521-22 (8th Cir. 2013) (autopsy
photos); United States v. Taylor, 814 F.3d 340, 365, 367 (6th Cir. 2016) (autopsy
photos); Hovey v. Ayers, 458 F.3d 892, 923 (9th Cir. 2006) (use of mannequin
resembling victim bound with rope and with a bag over its head). And it was far less
dramatic than much of the evidence in this case, which included, for example, video
of Tsarnaev placing a bomb next to a row of children and walking away just before
detonating it, as well as videos and photographs of the carnage after the blast. See
1.Supp.App.11-13, 16-19 (Gov’t Exhs. 24-26, 32, 39-40); Gov’t Exhs. 22, 23 (videos).
Tsarnaev argues that the photo’s “effect was powerful,” citing news reports
that are not in the record. Br. 393. But even if those news reports are correct, the
fact that “a collective gasp” was audible in the overflow courtroom, Br. 393 (quoting
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https://twitter.com/CatherineNews/status/590531837862268929?s=17), is hardly
evidence of the photo’s actual effect on the jurors who had sat through both phases
of this trial and had seen all of the evidence, including the victims’ autopsy photos
characterize the photo. The day after its penalty-phase opening, the government
called a Deputy U.S. Marshal to authenticate the still photo of Tsarnaev raising his
played several video clips, including the one in which Tsarnaev flashed his middle
finger, to contextualize the still shot. 16.App.7301-12. Tsarnaev later called another
Deputy U.S. Marshal to testify that Tsarnaev had apologized when confronted.
18.App.8446, 8452.
During the defense penalty-phase opening statement (deferred until after the
government presented its evidence), Tsarnaev’s counsel argued that the full video
from the holding cell showed that the “shocking gesture wasn’t quite as advertised.”
17.App.7503. Counsel argued that Tsarnaev was “using the plastic housing of the
security camera as a mirror” and “just for a split second, sticks out his middle finger.
To who? To himself? What did it mean? It meant that he was acting like an
argued that the video showed “childish[ ] silliness” and “stupidity.” 19.App.8766.
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And counsel even tried to turn the video to Tsarnaev’s advantage, arguing that he had
a clean prison record after two years, and that the most the government could come
up with was this “one second of [Tsarnaev] shooting the finger at the camera,” for
first. I doubt anybody has ever been written up for shooting a finger at the camera.”).
Thus, even if the government had suggested that Tsarnaev’s obscene gesture was
directed at his victims, the defense had every opportunity to argue that it was not.
Third, the district court instructed the jury that “[t]he lawyers’ summaries of the
evidence in their openings . . . are not part of the evidence.” 19.App.8650. The
summaries were “an attempt to marshal the evidence for you, to try to persuade you
to understand it in a way that is consistent with their view of the case.” 19.App.8650-
51. But, the court said, “it is your understanding and your assessment of the evidence
disdain for his victims and lack of remorse regarding their deaths. Far from simply
gesturing at them, he detonated a bomb designed to kill them by sending metal tearing
through their bodies. After the bombing, he flippantly tweeted that he was “a stress
free kind of guy,” 10.App.4496, and said, “[T]hey what ‘god hates dead people?’ Or
victims of tragedies? Lol [laugh out loud] those people are cooked.” 1.Supp.App.65
(Gov’t Exh. 1314). While hiding in the boat, he wrote that the bombings were
justified by the United States’ conduct toward Muslims. 11.App.4555-57. Thus, even
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if the jury had understood the prosecutor as saying that Tsarnaev’s gesture was
directed at his victims, the prejudice from that inference would pale in comparison to
the evidence that he violently and intentionally killed them and experienced no
remorse. Tsarnaev cannot show that the photo and the prosecutor’s statement
“inflame[d] [the jury’s] passions more than did the facts of the crime.” Payne v.
X. The Constitution Does Not Require the Government to Prove That the
Aggravating Factors Outweigh the Mitigating Factors Beyond a
Reasonable Doubt in Order to Justify a Death Sentence.
Tsarnaev contends (Br. 416-24) that the district court erred in instructing the
jury that, to impose a death sentence, it must find that the aggravating factors
the FDPA of whether a death sentence was justified based on the weighing of
aggravating and mitigating factors was a factual finding that, under Apprendi v. New
Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002), the jury was
has squarely rejected that argument. See Sampson I, 486 F.3d at 31-32. Contrary to
Tsarnaev’s contention, Sampson I remains good law, and nothing in the Supreme
Court’s decision in Hurst v. Florida, 136 S. Ct. 616 (2016), undermines Sampson I’s clear
holding that that the jury’s determination of whether a death sentence is justified is
not itself a factual determination that must be made beyond a reasonable doubt.
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A. Background
determination and selection of the actual punishment from among the eligible
522 U.S. 269, 275 (1998). Eligibility involves the consideration of discrete aggravating
factors that determine whether the defendant falls into the narrow category of
defendants who qualify for the death penalty, while the selection decision is a “broad
inquiry” into all evidence relevant to the ultimate decision of what penalty to impose.
Id. at 276. The selection phase is “an individualized determination on the basis of the
character of the individual and the circumstances of the crime” of whether the
defendant should receive a death sentence. Zant v. Stephens, 462 U.S. 862, 879 (1983)
(emphasis omitted).
At the eligibility stage, the jury must make certain factual findings before it may
consider imposing the death penalty. The jury must find, for example, that the
defendant intended to kill the victim, intended to inflict serious bodily injury, or
U.S.C. § 3591(a)(2)(A), (B), (C), and (D). The jury must also unanimously find
beyond a reasonable doubt that at least one statutory aggravating factor is present. Id.
Once the jury makes these threshold determinations, the FDPA prescribes
penalty. The jury must find any non-statutory aggravating factors unanimously and
beyond a reasonable doubt. 18 U.S.C. § 3593(c), (d). But a single juror may find a
mitigating factor by a preponderance of the evidence, and that juror “may consider
such factor established . . . regardless of the number of jurors who concur that the
The FDPA provides that, after making these determinations, the jury must
determine what sentence is “justif[ied]” by weighing the factors that it has found. 18
Id. The jury may impose a death sentence only if it unanimously agrees that the
sentence is justified in light of the factors the jury has found. Id.
This Court has squarely held that the jury’s determination of whether a death
sentence is justified based on the FDPA’s weighing process is not itself a factual
determination that must be made beyond a reasonable doubt under Apprendi and Ring.
Sampson I, 486 F.3d at 31-32. Other courts of appeals have uniformly reached the
same conclusion. See United States v. Gabrion, 719 F.3d 511, 532-33 (6th Cir. 2013) (en
banc); United States v. Runyon, 707 F.3d 475, 516 (4th Cir. 2013); United States v. Fields,
516 F.3d 923, 950 (10th Cir. 2008); United States v. Mitchell, 502 F.3d 931, 993-94 (9th
Cir. 2007); United States v. Fields, 483 F.3d 313, 345-46 (5th Cir. 2007); United States v.
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Purkey, 428 F.3d 738, 749-50 (8th Cir. 2005); see also United States v. Barrett, 496 F.3d
1079, 1107-08 (10th Cir. 2007) (reaching the same conclusion with respect to the
As this Court explained in Sampson I, by the time the jury reaches the weighing
prescribed by Section 3593(e), it “already ha[s] found beyond a reasonable doubt the
facts needed to support a sentence of death.” Sampson I, 486 F.3d at 32. The jury’s
particular sentence but rather a determination of the sentence itself, within a range for
which the defendant is already eligible. Id.; see also Gabrion, 719 F.3d at 533. The
FDPA’s instruction that jurors determine what sentence is justified by weighing the
which “is not an objective truth that is susceptible to (further) proof by either party.
Hence, the weighing of aggravators and mitigators does not need to be ‘found.’”
Sampson I, 486 F.3d at 32; see also Mitchell, 502 F.3d at 993 (finding no indication “how
process, or why it must be in order to comport with due process”); Fields, 483 F.3d at
346 (concluding that Ring “applies by its terms only to findings of fact, not to moral
judgments”); Purkey, 428 F.3d at 750 (explaining that the weighing process is not an
“elemental fact” the jury must find, but rather “the lens through which the jury must
Consistent with the FDPA and Sampson I, the district court instructed the jury
You must decide, in regard to that particular capital offense, whether the
aggravating factors that have been found to exist sufficiently outweigh
the mitigating factors found to exist for that offense so as to justify
imposing a sentence of death on the defendant for that offense; or, if
you do not find any mitigating factors, whether the aggravating factors
alone are sufficient to justify imposing a sentence of death on the
defendant for that offense.
19.App.8661-62.
B. Standard of review
This Court reviews a properly preserved claim that the jury instructions
inadequately explained the law de novo, “taking into account the charge as a whole and
contends, however, that Sampson I is no longer good law. In his view, Hurst v. Florida,
136 S. Ct. 616 (2016), establishes that the Sixth Amendment rule of Apprendi and Ring
on the weighing of aggravating and mitigating factors. That contention lacks merit.
Hurst merely applied Ring to the Florida capital sentencing scheme and found that it
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findings. Hurst did not expand Ring to require courts to superimpose the beyond-a-
sentencing proceeding, the trial court would conduct an evidentiary hearing before a
jury and the jury would render an “advisory sentence.” 136 S. Ct. at 620. After
receiving that “advisory sentence,” the trial court was required to independently find
and re-weigh all of the aggravating and mitigating circumstances before entering a
sentence of life or death. Id. If the trial court imposed a death sentence, it was
required to set forth in writing the “findings upon which the sentence of death [was]
required the judge to independently find aggravating facts that were necessary to make
the defendant eligible for a death sentence. Hurst, 136 S. Ct. at 620-21 (citing Ring’s
proceeding). Accordingly, the Court determined that, like Arizona’s scheme in Ring,
Florida’s scheme required the judge, not the jury, to make the “critical findings
necessary to impose the death penalty.” Id. at 622 (emphasis added). The Court held that
this “factfinding” violated the Sixth Amendment, which requires that “the existence
sentence be based “on a jury’s verdict, not a judge’s factfinding.” Id. at 624. Hurst did
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not expand the rule of Ring to the selection-stage weighing process, which occurs after
The fact that Hurst did not address the weighing process is underscored by the
limited way in which the Court overruled its prior decisions in Hildwin v. Florida, 490
U.S. 638 (1989) (per curiam), and Spaziano v. Florida, 468 U.S. 447 (1984). In Spaziano,
the Court concluded there was no requirement that a jury impose the sentence in a
capital case. 468 U.S. at 460-65. And in Hildwin, the Court held that the Sixth
Amendment “does not require that the specific findings authorizing the imposition of
the sentence of death be made by the jury.” 490 U.S. at 640-41. Hurst overruled those
decisions, but only “to the extent they allow a sentencing judge to find an aggravating
death penalty.” 136 S. Ct. at 624 (emphasis added). By limiting the manner in which
it overruled Hildwin and Spaziano, Hurst demonstrated that it did not intend for all
Tsarnaev purports to find support for that assertion in the following sentence from
Hurst, which rejected the state’s characterization of the jury’s role under Florida’s
scheme: “The trial court alone must find ‘the facts . . . [t]hat sufficient aggravating
outweigh the aggravating circumstances.”’ Hurst, 136 S. Ct. at 622 (quoting Fla. Stat.
§ 921.141(3)). But the Court referenced the weighing stage merely to illustrate the
“central and singular role the judge play[ed] under Florida law.” Id. Nothing in
Hurst’s reasoning—much less its narrow holding that the jury must “find the existence
constitutes a “fact” that the jury must find beyond a reasonable doubt. That single
sentence is far too thin a reed to support Tsarnaev’s assertion that Hurst implicitly
reversed the uniform holdings of this Court and every other court of appeals to have
Tsarnaev’s reliance (Br. 422) on United States v. Gaudin, 515 U.S. 506 (1995), is
also misplaced. Gaudin applied the principle that “criminal convictions [must] rest
upon a jury determination that the defendant is guilty of every element of the crime
18 U.S.C. § 1001. 515 U.S. at 510. The Court held that a different result was not
and fact,” particularly absent “historical support” for judicial determination of the
question. Id. at 512. Gaudin, however, did not suggest that the ultimate judgment as to
the appropriate sentence in a case is an “element” or a fact that must be found by the
decision in Sampson I compels the contrary conclusion. Moreover, while the Supreme
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Court has held that a fact that increases the penalty for a crime must be proved
beyond a reasonable doubt, see Apprendi, 530 U.S. at 490, it has emphasized that, once
facts are found, States and the federal government have flexibility concerning the
manner in which sentencing determinations based on the facts are made. See, e.g.,
Kansas v. Marsh, 548 U.S. 163, 175 (2006); Gall v. United States, 552 U.S. 38, 49-50
(2007).
In Kansas v. Carr, 136 S. Ct. 633 (2016), decided one week after Hurst, the
Supreme Court confirmed that the weighing process in capital cases does not
constitute factfinding in any constitutionally relevant sense. In Carr, the Court held
affirmatively inform the jury that mitigating circumstances need not be proven
holding, the Court reaffirmed the discretionary nature of the weighing process and
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Id. (emphasis added). 72 If the Supreme Court in Hurst had intended to impose the
the Court would not have said the following week in Carr that instructing the jury to
The only other court of appeals to have considered Tsarnaev’s Hurst argument
has rejected it. In Underwood v. Royal, 894 F.3d 1154 (10th Cir. 2018), cert denied, 139 S.
Ct. 1342 (2019), a case Tsarnaev does not cite, the Tenth Circuit held that Hurst did
not reverse prior circuit precedent holding that the Apprendi/Ring rule does not apply
1186. The court explained that, “[a]lthough Hurst contains some preliminary
scheme specifically ‘to the extent [it] allow[s] a sentencing judge to find an aggravating
circumstance . . . that is necessary for imposition of the death penalty.’” Id. (quoting
Hurst, 136 S. Ct. at 622, 624) (original emphasis omitted, alternative emphasis added).
The court accordingly concluded that “because Hurst did not directly address
See also Shafer v. South Carolina, 532 U.S. 36, 51 (2001) (contrasting the jury’s
72
two roles under South Carolina law as “aggravating circumstance factfinder,” where it
“exercises no sentencing discretion itself,” and as sentencer, where it renders “the
moral judgment whether to impose the death penalty”).
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did not contravene circuit precedent holding that Apprendi does not apply to the
weighing process. Id.; see also Ybarra v. Filson, 869 F.3d 1016, 1030-31 (9th Cir. 2017)
(“We are highly skeptical” of the argument that Hurst requires Nevada’s weighing
capital offense.”); United States v. Bazemore, 839 F.3d 379, 393 (5th Cir. 2016) (per
curiam) (noting in a non-capital case that Hurst “applies only to statutory schemes in
which judge-made findings increase the maximum sentence that a defendant can
receive”); Garcia v. Davis, 704 F. App’x 316, 324 (5th Cir. 2017) (unpublished)
(rejecting habeas petitioner’s claim that Hurst expanded Ring to require the state to
prove beyond a reasonable doubt the absence of mitigating circumstances), cert. denied,
The majority of district courts to have considered the Hurst claim Tsarnaev
raises here have also rejected it. See, e.g., United States v. Christensen, No. 17-cr-20037,
2019 WL 1976442, at *4 (C.D. Ill. May 3, 2019) (refusing to “read Hurst to require
instruction that the jury make a finding about the relative weight of the aggravating
and mitigating factors beyond a reasonable doubt”); United States v. Ofomata, No. 17-cr-
201, 2019 WL 527696, at *6-7 (E.D. La. Feb. 11, 2019) (rejecting the argument that,
under Hurst, the weighing process mandated by the FDPA is a “fact” that must be
found by a jury beyond a reasonable doubt); Garcia v. Ryan, No. cv-15-0025, 2017 WL
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1550419, at *3 (D. Ariz. May 1, 2017) (“Hurst did not address the process of weighing
the aggravating and mitigating circumstances.”); United States v. Con-ui, No. 3:13-cr-
123, 2017 WL 1393485, at *3 (M.D. Pa. Apr. 18, 2017) (noting that “[n]othing in
Hurst” invalided the court’s previous conclusion that the weighing process is not a
“fact” under Ring and Apprendi); Runyon v. United States, No. 4:08-CR-1603, 2017 WL
253963, at *46-47 (E.D. Va. Jan. 19, 2017) (rejecting an argument that Hurst requires
that the jury make the weighing determination beyond a reasonable doubt), appeal filed,
No. 17-5 (4th Cir.); United States v. Roof, 225 F. Supp. 3d 413, 419 (D.S.C. 2016)
(rejecting argument that Hurst required reversal of Fourth Circuit precedent holding
that the jury need not find that aggravating factors outweighed mitigating factors
Of the two district court cases Tsarnaev relies on (Br. 423 n.160), only one
the weighing process. See Smith v. Pineda, No. 1:12-CV-196, 2017 WL 631410, at *3
(S.D. Ohio Feb. 16, 2017). In the other case, United States v. Fell, No. 5:01-CR-12 (D.
Vt. May 1, 2017), the court relied on Hurst to hold that the Sixth Amendment’s
aggravating and mitigating factors, but the court did not hold that the ultimate
weighing of those factors is a “fact” that must be found beyond a reasonable doubt.
See United States v. Fell, 2017 WL 10809985, at *5 (D. Vt. February 15, 2017) (previous
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decision in the same case holding that “[t]he decision about whether these factors
the jury that its failure to reach a unanimous recommendation on the death penalty
would result in the court automatically imposing a life sentence without the possibility
of release. As Tsarnaev acknowledges (Br. 430), the Supreme Court has held that
deadlock. Jones v. United States, 527 U.S. 373, 381-82 (1999). In light of Jones, Tsarnaev
does not contend that the district court’s refusal to instruct the jury on the
the jury was misled by alleged inconsistencies in the instructions at different stages.
Specifically, Tsarnaev argues (Br. 431) that, because the jury was instructed that a lack
without release, the jury was misled into believing that a deadlock at the sentence-
selection stage would not result in a life sentence, but in a new capital sentencing
hearing before a different jury. That misimpression, Tsarnaev contends, could have
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death sentence in order to spare the victims from the emotional trauma of a second
Because Tsarnaev did not raise his inconsistency argument in district court, he
cannot prevail unless he shows plain error. Fed. R. Crim. P. 52(b). There was no
error, plain or otherwise, because the jury instructions did not lead the jury to believe
that deadlock on the penalty recommendation would result in a retrial before a second
jury. And even if they did, Tsarnaev cannot show any likelihood of juror coercion
because the district court instructed the jurors repeatedly that each individual juror
was to make his or her own determination as to the appropriate penalty. Finally,
Tsarnaev cannot show that the asserted error affected his substantial rights because
the instructions that he claims should have been given would not necessarily have
helped him.
A. Background
The FDPA provides that “[u]pon a recommendation under section 3593(e) that
of release, the court shall sentence the defendant accordingly. Otherwise, the court
shall impose any lesser sentence that is authorized by law.” 18 U.S.C. § 3594. In Jones,
pass to the district judge, for the imposition of a sentence other than the death
penalty, whenever the jury fails to reach a unanimous verdict on punishment. Jones,
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527 U.S. at 380-81. Thus, under Jones, if a capital sentencing jury deadlocks, the
Jones further held that district courts are not required to instruct juries on the
consequences of deadlock. Jones, 527 U.S. at 381. The Court rejected the defendant’s
claim that the omission of such an instruction misled the jury about its role in capital
sentencing. Id. The Court explained that such an instruction “has no bearing on the
jury’s role” because it addresses only “what happens in the event that the jury is
unable to fulfill [that] role.” Id. at 382. The Court emphasized that the “very object”
arguments among the jurors themselves.” Id. (quotations omitted). “[I]n a capital
sentencing proceeding,” the Court explained, “the Government has a strong interest
in having the jury express the conscience of the community on the ultimate question
of life or death,” and instructing the jury about the consequences of deadlock “might
well have had the effect of undermining” those important interests. Id. (quotations
omitted). Accordingly, because of the “legitimate reasons for not instructing the jury
as to the consequences of deadlock,” the Court held that such an instruction is not
required under the Constitution, the FDPA, or the Court’s supervisory powers. Id. at
384; see also id. at 383-84 (finding “persuasive” a state court decision holding that
instructing on the consequences of deadlock amounts to “an open invitation for the
2. Proceedings below
Before the penalty-phase jury deliberations, Tsarnaev requested that the district
court instruct the jury that the court would impose a sentence of life imprisonment
without the possibility of release if, after weighing the aggravating and mitigating
Id.
such instructions, but he urged the district court to give the instruction in this case as
jurors might “wrongly assume that a failure to agree on sentence would require the
case to be retried before a new jury.” Id. at 11611. Tsarnaev contended that this
mistaken belief would have an “extraordinarily coercive” effect on jurors, who would
face pressure to give in to a majority of the jury in order to avoid “put[ing] the victims
and the survivors and the entire community through this entire case again.”
19.App.8819. Tsarnaev did not argue that his requested instruction was necessary to
prevent confusion allegedly caused by other instructions, such as the instructions that
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informed the jury of the consequences of deadlock regarding the gateway and
The court reasoned, based on Jones, that the instructions should “encourage
unanimity” to the extent that such unanimity can be achieved consistent with “each
juror’s sound judgment.” Id. The court explained that Tsarnaev’s proposed
empowering “one juror” to “simply decid[e] that the decision was his” without
very strong instruction” that “each individual juror must give his or her own [verdict]
Following the penalty-phase evidence, the district court instructed the jury that
doubt at least one of the mental states specified in 18 U.S.C. § 3592(c) (i.e., the
“gateway factors”) and at least one of the “statutory” aggravating factors enumerated
in the FDPA, 18 U.S.C. § 3593(e). 19.App.8663-69. The court explained that, if the
jury did not unanimously find one of the gateway factors, or one of the statutory
aggravating factors, then the court would sentence Tsarnaev to life imprisonment on
that count:
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[F]or any capital count, if you do not unanimously find that the
government has proven beyond a reasonable doubt the existence as to
that count of any of the four gateway factors, your deliberative task . . .
as to that capital count is over, and I will impose a mandatory sentence
of life imprisonment without the possibility of release.
factors); Add.81 (verdict form providing that “if you do not unanimously find the
government has proven beyond a reasonable doubt at least one of the above gateway
factors with respect to that count, then your deliberations are over as to that count”);
The district court further instructed the jury that, if the jury unanimously found
at least one “gateway” factor and at least one statutory aggravating factor, the jury
should then consider whether all of the aggravating factors found to exist sufficiently
outweighed all of the mitigating factors found to exist to justify a sentence of death.
19.App.8694-99; see also 18 U.S.C. § 3593(e). The court instructed the jury that, after
the weighing process, if it unanimously found that death or life without the possibility
of release was the appropriate sentence, it should mark the corresponding section of
the verdict form. 19.App.8699. The court did not instruct the jury about the
consequences of deadlock in the weighing process, but instead instructed the jury:
In the event that the jury is unable to reach a unanimous verdict in favor
of a death sentence or in favor of a life sentence for any of the capital
counts, please so indicate [in the verdict form]. Before you reach any
conclusion based on a lack of unanimity on any count, you should
continue your discussions until you are fully satisfied that no further
discussion will lead to a unanimous decision.
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19.App.8699-8700; see also Add.96 (verdict form allowing the jury to indicate that it
The district court also instructed the jurors repeatedly that each individual juror
was to make his or her own determination as to the appropriate penalty. The court
said that “[a]ny one of you is free to decide that a death sentence should not be
recommend a death sentence, 19.App.8695, and that “no juror is ever required to
B. Standard of review
A properly preserved claim that the jury instructions misled the jury is reviewed
de novo, “taking into account the charge as a whole and the body of evidence presented
at trial.” Sampson I, 486 F.3d at 29, 32. But Tsarnaev did not raise below his current
contention that the district court’s instructions “affirmatively misled jurors about the
only for plain error. United States v. Boylan, 898 F.2d 230, 249 (1st Cir. 1990).
To be sure, Tsarnaev did argue below that the district court should instruct the
jury on the consequences of deadlock. But that is insufficient to preserve the claim he
now raises on appeal because Tsarnaev sought that instruction on different grounds
than the one he now asserts in this Court. See Fed. R. Crim. P. 30(d) (requiring a party
“who objects to any portion of the instructions” to “inform the court of the specific
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objection and the grounds for the objection before the jury retires to deliberate”); see
also id. (“Failure to object in accordance with this rule precludes appellate review,
except as permitted under Rule 52(b).”); Boylan, 898 F.2d at 249 (rejecting a
defendant’s claim that his challenge to an instruction on one ground could preserve
objection at trial focused on the reasons the district court should exercise its
to district court’s denial of the instruction). But Tsarnaev did not object to the
instructions governing the “gateway” and statutory aggravating factors, nor did he
argue that, because the jury was told about the consequences of deadlock at those
earlier stages, the jury might be misled about the consequences of a non-unanimous
instructions at different stages, Tsarnaev deprived the district court of any opportunity
misleading effect of the earlier instructions that, he claims, “explicitly told [the jury]
the consequences of deadlock” at the gateway and aggravating factor stage. Br. 431.
To the extent Tsarnaev raises on appeal any of the arguments he actually raised
below—i.e., arguments inviting the district court to exercise its discretion to instruct
the jury on the consequences of a failure to reach a unanimous decision without
relying on the allegedly misleading effect of the earlier instructions—those arguments
are foreclosed by Jones.
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to cure the supposed problem. As courts have recognized, a party’s failure to raise
potential problems in the instructions with sufficient clarity to allow for correction
constitutes a failure to satisfy the specific-objection requirement. See Jones, 527 U.S. at
387-88 (noting that the requirement that “a party state distinctly his grounds for
mistakes before the jury retires and in that way help[s] to avoid the burdens of an
unnecessary retrial”); Boylan, 898 F.2d at 249 (holding that objections to jury
instructions “must be phrased with sufficient particularity to alert the trial court to the
grounds asserted”); United States v. Wheeler, 540 F.3d 683, 689 (7th Cir. 2008)
(reviewing for plain error where the defendant objected to the instruction’s definition
appeal).
Here, the district court could have corrected the alleged error either by
contends it should have done, or by deleting the instructions about the consequences
of deadlock at the earlier stages. That latter course would have been particularly
argument that the government had proved the gateway and statutory aggravating
factors and told the jurors to “check them off” on the verdict form. 19.App.8768.
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stages, and thus deleting the deadlock instructions would not even arguably have
“plain,” that “affect[s] substantial rights,” and that “seriously affect[s] the fairness,
Tsarnaev contends that the district court’s jury instructions improperly led the
jurors to believe that, if they deadlocked on the penalty recommendation, there would
be a mistrial and a second penalty phase before a different jury. The jury instructions
contained no express statement to that effect. Tsarnaev argues, however, that the jury
was likely to reach that conclusion by drawing a “negative inference” from the
instructions at earlier stages (which informed the jury that deadlock would result in an
automatic sentence of life without release) and that this erroneous inference was, in
turn, likely to have a coercive effect on the jury’s deliberations. Br. 431-34.
A defendant who claims on appeal that the jury instructions are susceptible to
has applied the challenged instruction[s]” erroneously. Jones, 527 U.S. at 390
(quotations omitted); see also Boyde v. California, 494 U.S. 370, 380 (1990) (noting that,
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retrials years after the first trial where the claimed error amounts to no more than
speculation”). Here, there is no reasonable likelihood that the jury applied the
instructions incorrectly.
First, the jury instructions Tsarnaev challenges were correct statements of the
law. The district court’s instructions that Tsarnaev would be sentenced to life without
release if the jury did not unanimously find one of the gateway factors, or one of the
statutory aggravating factors, were accurate. 18 U.S.C. § 3594; Jones, 527 U.S. at 380-
81. The district court’s decision not to instruct on the effect of deadlock on the
Second, Tsarnaev’s argument that the jury was likely to draw a negative
earlier stages is speculative at best. Neither the defense nor the district court noticed
the alleged inconsistency or suggested that the jury might draw a misleading negative
inference from it. That is strong evidence that the jurors did not make the negative
suggests that “the participants in the trial did not perceive the challenged instruction
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in the manner [Tsarnaev] now proffers.” Waters v. Thomas, 46 F.3d 1506, 1527 n.9
Tsarnaev speculates (Br. 432) that the jury may have applied the negative-
inference canon of statutory construction to infer that deadlock at the weighing stage
would result in a retrial. But Tsarnaev places too much weight on this technical
interpretive canon. “Jurors do not sit in solitary isolation booths parsing instructions
for subtle shades of meaning in the same way that lawyers might.” Brown v. Payton,
544 U.S. 133, 143 (2005) (quoting Boyde, 494 U.S. at 380-81). Juries apply a
“commonsense understanding of the instructions in light of all that has taken place at
the trial,” rather than “technical hairsplitting.” Id. (quoting Boyde, 494 U.S. at 381).
construction applies to the interpretation of jury instructions (which it does not), and
even assuming that jurors were aware of that canon (a dubious proposition, given that
none of the jurors was a lawyer), the canon would not support Tsarnaev’s argument.
See United States v. Vonn, 535 U.S. 55, 65 (2002) (noting that the canon “is only a guide,
whose fallibility can be shown by contrary indications that adopting a particular rule
or statute was probably not meant to signal any exclusion of its common relatives”);
NLRB v. SW General, Inc., 137 S. Ct. 929, 939 (2017) (noting that the canon “applies
only when circumstances support a sensible inference that the term left out must have
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been meant to be excluded”) (quotations and brackets omitted). Here, nothing about
deadlock instruction at the weighing stage was intended to signal that a deadlocked
jury at that stage would trigger a mistrial and new penalty phase. Indeed, even
indulging Tsarnaev’s speculation that the jurors drew any inference from the
omission, they were at least as likely to conclude that the consequences of deadlock
would be the same as at earlier stages. In other words, the jurors were as likely to
draw a positive inference from the earlier instructions as a negative one. In any event,
given the complexities inherent in Tsarnaev’s “negative implication” theory, and the
lack of any authority supporting it, his claim of error is hardly “clear” or “obvious”
within the meaning of the plain-error rule. United States v. Olano, 507 U.S. 725, 734
The Supreme Court in Jones rejected a similar claim that a negative inference
from an alleged inconsistency across multiple instructions misled the jury about the
the instructions might have led the jury to believe that, if it failed to reach a
sentence less severe than life without release. Jones, 527 U.S. at 387. But the Court
“parse[d]” the instructions “too finely” and that, considering the instructions as a
whole, the inconsistencies and inferences the defendant relied on did not “create a
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reasonable likelihood” of confusion over the effect of deadlock. Id. at 391-92. This
Court should likewise reject Tsarnaev’s argument that the district court’s omission of
Even if the jurors mistakenly believed that a deadlocked jury at the weighing
stage would result in a retrial, Tsarnaev cannot demonstrate that this misimpression
was likely to have had an unconstitutionally coercive effect. Jurors who believed that
deadlock would result in a retrial, rather than an automatic sentence of life without
release, might well feel less pressure to agree with a majority view, since hanging the
jury would merely defer the death penalty decision to a different jury rather than
the Court has held that even affirmative instructions that might be “ambiguous in the
abstract” can be cured in light of other instructions. See Jones, 527 U.S. at 391; Victor v.
instruction was cured by the remainder of the instruction). Accordingly, it was well
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within the district court’s discretion to determine that it could mitigate Tsarnaev’s
concerns about coercion by giving “a very strong instruction” that “each individual
juror must give his or her own [verdict] and not agree just to agree with others.”
22.App.10339-40. Consistent with that determination, the district court instructed the
jury:
Any one of you is free to decide that a death sentence should not be
imposed so long as, based on the evidence and your sense of justice, you
conclude that the proven aggravating factors do not sufficiently
outweigh the mitigating factors such that the death penalty should be
imposed. Each juror is to individually decide what weight or value is to
be given to any particular aggravating or mitigating factor in the
decision-making process.
19.App.8698; see also id. (“[I]n carefully weighing these factors, you are called upon to
make a unique, individual judgment about the sentence Mr. Tsarnaev should
receive”); 19.App.8695 (“Each juror must individually decide whether the facts and
circumstances in this case as to each count call for death as the appropriate
sentence”); 19.App.8697 (“All 12 jurors must agree that death is, in fact, the
light of these explicit instructions, which the jury is presumed to have followed, see
Richardson v. Marsh, 481 U.S. 200, 206 (1987), there is no basis for Tsarnaev’s
speculation that any jurors were coerced into voting for a capital sentence to avoid
causing a mistrial.
Tsarnaev notes (Br. 427) that some district courts have decided to inform juries
of the consequences of deadlock under the FDPA, even after Jones, to avoid the risk
instruction in one case is not binding on other courts, or even on the same court in a
future case. And those decisions are in tension with the Supreme Court’s observation
deliberations seeking unanimity. Jones, 527 U.S. at 382-84. As the Court explained,
society has “a strong interest” in encouraging the jury to deliberate with a view toward
reaching a unanimous sentencing decision, because such a verdict enables the jury to
death sentence should be imposed. Id. at 382 (quoting Lowenfield v. Phelps, 484 U.S.
231, 238 (1988)). There are therefore “legitimate reasons for not instructing the jury
entirely consistent with the purposes and traditions of the jury system. See id.; see also
Scott v. Mitchell, 209 F.3d 854, 877 (6th Cir. 2000) (noting that “[t]he Supreme Court
has chastised such instructions as encouraging deadlock and undermining the strong
the consequences of deadlock does not result in any improper coercion. See, e.g.,
United States v. Taylor, 814 F.3d 340, 371-73 (6th Cir. 2016) (upholding a district court’s
refusal to tell the jury the consequences of deadlock in a capital case even when the
deliberating jury asked what would happen if it could not reach a unanimous verdict);
Lyons v. Lee, 316 F.3d 528, 534 n.8 (4th Cir. 2003) (finding no error in failure to
instruct the jury on the consequences of deadlock where the jury asked whether its
decision on recommending the death penalty had to be unanimous); Coe v. Bell, 161
F.3d 320, 339-40 (6th Cir. 1998) (rejecting claim that Constitution requires a jury
instruction on the consequences of deadlock); United States v. Chandler, 996 F.2d 1073,
1088-89 (11th Cir. 1993) (same); Zettlemoyer v. Fulcomer, 923 F.2d 284, 309 (3d Cir.
1991) (same); Evans v. Thompson, 881 F.2d 117, 123-24 (4th Cir. 1989) (same).
understanding of the effect of deadlock, Tsarnaev cannot meet his burden of showing
that any such error affected his substantial rights. See United States v. Griffin, 84 F.3d
912, 925 (7th Cir. 1996) (plain-error review is “particularly light-handed in the context
Once again, Jones controls the outcome here. Jones concluded that, “even
assuming that the jurors were confused over the consequences of deadlock,” the
defendant could not show prejudice because he could not establish that “the
confusion necessarily worked to his detriment.” Jones, 527 U.S. at 394. As the Court
explained, “[i]t is just as likely that the jurors, loath to recommend a lesser sentence,
Id. The Court therefore determined that speculation about the instruction’s potential
The same is true here. Even if the instructions erroneously led the jurors to
believe that a deadlock would result in a new sentencing proceeding, Tsarnaev cannot
establish that he was prejudiced. Assuming the jurors wanted to avoid a new
sentencing proceeding, the instructions could just as easily have caused jurors to
compromise on a sentence of life imprisonment, see Jones, 527 U.S. at 394-95, or they
could have had no effect whatsoever. Moreover, there is no indication that any of the
jurors in this case in fact felt pressure to change their votes—much less actually did
so—based on the district court’s unanimity instruction. See Chandler, 996 F.2d at
1089. To the contrary, the jury’s verdict shows that the jury did not feel compelled to
return a death verdict. The jury imposed a sentence of life imprisonment on 11 of the
17 death-eligible counts. Tsarnaev cannot demonstrate that the jury was in any way
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not individually require reversal, they do when “[c]onsidered cumulatively.” Br. 436.
aggregate have a more debilitating effect.” United States v. Sepulveda, 15 F.3d 1161,
1195-96 (1st Cir. 1993). But, as explained above, the district court committed no
cumulative effect of non-errors.” United States v. Stokes, 124 F.3d 39, 43 (1st Cir.
1997).
Even where the Court finds multiple errors to be individually harmless, reversal
based on cumulative error is justified only if the errors “call into doubt the reliability
of the verdict and the underlying fairness of the trial.” United States v. Delgado-Marrero,
744 F.3d 167, 210 (1st Cir. 2014) (quoting United States v. Sanabria, 645 F.3d 505, 519
(1st Cir. 2011)). Relevant considerations include “the nature and number of the errors
committed; their interrelationship, if any, and combined effect; how the district court
dealt with the errors as they arose . . . ; and the strength of the government’s case.”
Sepulveda, 15 F.3d at 1196. Here, even if the district court had committed two or more
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Amendment due process rights and Sixth Amendment right to counsel by conducting
certain proceedings ex parte and in camera. This Court and other courts have
process rights by allowing the district court to review and to rule on the
which does not include a right to access otherwise undiscoverable information. And
even if the district court had abused its discretion, any error would have been
harmless because the ex parte information was neither favorable to the defense nor
material.
A. Background
of documents ex parte, and the district court held a number of ex parte conferences
with the government, resulting in 26 ex parte docket entries, including four orders of
the court (Docs. 146, 435, 575, and 600), 16 government motions or notices (Docs.
145, 147, 411, 413, 429, 435, 574, 576, 599, 600, 601, 638, 1151, 1523, 1524, and
1525), and six transcripts of ex parte conferences (Docs. 1667 through 1672). In
February 2017, in anticipation of this appeal and with the district court’s approval, the
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Docs. 1713, 1717. Tsarnaev then filed a motion in the district court seeking
disclosure of the remaining ex parte filings, Doc. 1719, but the district court denied
Tsarnaev also filed a motion in this Court seeking disclosure of the ex parte
materials. See Motion to Disclose (1st Cir. Apr. 7, 2017). In opposing that motion,
the government argued that the ex parte materials were not discoverable. Opposition
to Motion to Disclose, No. 16-6001 (1st Cir. Apr. 27, 2017). The government
attached a sealed summary of each ex parte document with an explanation of why each
for disclosure. Order, No. 16-6001 (1st Cir. Aug. 11, 2017). After Tsarnaev filed his
The government disclosed Docs. 145, 146, 411, 413, 429, 435, 436, 574, 575,
75
599, 600, 1670, and 1671, as well as the cover sheets of Docs. 576, 601, 1667, and
1669. See Doc. 1716
Tsarnaev points out that the government “file[d] a 27th ex parte pleading
76
(DE.1730) in support of its opposition to disclosure.” Br. 441 n.168. The purpose of
that pleading was to describe the documents that remained ex parte and to justify their
continued non-disclosure.
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B. Standard of review
reviewed de novo. See United States v. Bresil, 767 F.3d 124, 129 (1st Cir. 2014); United
States v. Lustyik, 833 F.3d 1263, 1267 (10th Cir. 2016). See Doc. 1719 at 3 (preserving
claim). Tsarnaev has not asked this Court to review the district court’s conclusion
that the materials submitted in camera were not discoverable, but to the extent the
Court conducts such a review, it should review for abuse of discretion. United States v.
confidentiality [can] outweigh the interest in adversarial litigation and permit a court
United States v. Innamorati, 996 F.2d 456, 487-88 (1st Cir. 1993). In particular, the
Federal Rules of Criminal Procedure explicitly authorize ex parte proceedings when the
governments submits material for the district court to determine whether it must be
disclosed to the defense. See Fed. R. Crim. P. 16(d)(1) (“The court may permit a party
to show good cause [for an order restricting discovery] by a written statement that the
court will inspect ex parte.”). And this Court has noted that “[t]he Classified
Information Procedures Act, 18 U.S.C. App. §§ 1-16, permits the ex parte submission
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Tsarnaev’s argument that the ex parte proceedings in this case violated the Due
Process Clause fundamentally misunderstands how criminal discovery works. “In the
typical case where a defendant makes only a general request for exculpatory material
disclosed.” Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987). “Unless defense counsel
becomes aware that other exculpatory evidence was withheld and brings it to the
the government wishes to withhold it, the government may submit the evidence to
the court for in camera review. United States v. Jordan, 316 F.3d 1215, 1252 (11th Cir.
2003). But, far from violating due process, such procedures help protect a defendant’s
due process rights by allowing the district court to review the government’s otherwise
unilateral determination that materials are not subject to disclosure under Brady.
Aside from four documents involving a restitution-related issue that the district
court never ruled upon, the documents that remain ex parte in this case all relate to
either classified or otherwise sensitive material that the government submitted to the
district court for its determination whether the material should be protected from
disclosure or should instead be produced to the defense. Thus, the district court’s in
camera review provided an additional safeguard for Tsarnaev’s due process rights.
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In Ritchie, the Supreme Court specifically endorsed the kind of in camera review
that took place here. There, a defendant charged with raping his minor daughter
sought access to records compiled by the state’s Children and Youth Services (CYS),
but state law protected those records from disclosure. Ritchie, 480 U.S. at 43. The
Supreme Court held that the defendant was entitled to see those records if they were
“material” to his defense. Id. at 58, 60. But it specifically rejected the Pennsylvania
Supreme Court’s conclusion that “defense counsel must be allowed to examine all of
the confidential information, both relevant and irrelevant, and present arguments in
favor of disclosure.” Id. at 59. Instead, the Court concluded that the defendant’s
“interest . . . in ensuring a fair trial can be protected fully by requiring that the CYS
files be submitted only to the trial court for in camera review.” Id. at 60.
Even before Ritchie, this Court upheld against constitutional attack the use of ex
Information Procedures Act (CIPA). United States v. Pringle, 751 F.2d 419, 426-28 (1st
Cir. 1984). In Pringle, the district reviewed the classified information ex parte and in
camera, determined that it was “neither relevant nor helpful to the defense,” and issued
orders protecting the information from disclosure. Id. at 426-27. This Court
concluded that “the [district] court’s ex parte in camera inspection of the documents was
authorized under § 4 of CIPA and Federal Rule of Criminal Procedure 16(d)(1).” Id.
at 427. And the Court “reject[ed] defendants’ contention that the protective orders . .
. violated their due process rights.” Id. This Court “reviewed the classified
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information” and “agree[d] with the district court” that it was neither relevant nor
helpful the defense and “was, therefore, properly excluded.” Id. at 427-28.
This Court has reviewed district courts’ ex parte discovery rulings in other cases
without any suggestion that ex parte proceedings are unconstitutional. See, e.g., Bulger,
816 F.3d at 154; United States v. Mehanna, 735 F.3d 32, 65-66 (1st Cir. 2013). And
other courts of appeals, like this Court, have upheld such proceedings against due
process attacks. See United States v. Campa, 529 F.3d 980, 995 (11th Cir. 2008)
(rejecting defendants’ claim that “the ex parte hearing [to consider classified
Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 130 (2d Cir. 2008) (defendant’s
exclusion from CIPA hearing “did not violate [his] due process right to be present at a
crucial stage in his trial”); United States v. Mejia, 448 F.3d 436, 458 (D.C. Cir. 2006)
(where court determines that withheld classified information is not favorable and
material under Brady, there is no due process violation); United States v. Yunis, 924 F.2d
1086, 1094 (D.C. Cir. 1991) (rejecting defendant’s claim that CIPA’s procedures
“infringe upon procedural protections guaranteed him by the Fifth and Sixth
Amendments”); United States v. Aref, 285 F. App’x 784, 793 (2d Cir. 2008)
information).
In the face of this unanimous authority, Tsarnaev cites three inapposite cases.
In United States v. Claudio, 44 F.3d 10, 12 (1st Cir. 1995), the government affirmatively
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This Court said the defendant’s “position on appeal—that the government can never
overstate the matter; but not by much.” Id. at 14. In this case, unlike in Claudio, the
evidence.” Id. And Claudio observed that the government may properly submit
The court in United States v. Minsky, 963 F.2d 870, 874 (6th Cir. 1992),
concluded that an ex parte bench conference during trial was inappropriate. But the
problem in Minsky was the timing—the middle of trial. Id. The court acknowledged
that an earlier “in camera review by the court was not only proper, but probably
required.” Id. Minsky does not suggest that the in camera review in this case was
inappropriate.
Finally, in Haller v. Robbins, 409 F.2d 857, 859 (1st Cir. 1969), this Court found
Haller related directly to the merits of the case, however, and this Court determined
that there was “no practical necessity” for the information to be conveyed ex parte. Id.
Like Claudio, Haller is inapposite because in this case the government did not try to
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affirmatively use ex parte information against Tsarnaev. Rather, the government erred
on the side of caution by submitting certain information that it believed was not
Tsarnaev’s claim (Br. 442) that the ex parte proceedings in this case violated his
right to counsel also fails. The Sixth Amendment’s guarantee of effective assistance
of counsel can be violated where “judicial action before or during trial prevented
counsel from being fully effective.” United States v. Morrison, 449 U.S. 361, 364 (1981).
But in order to show a Sixth Amendment violation, a defendant ordinarily must show
that he was actually prejudiced. Strickland v. Washington, 466 U.S. 668, 694, 700 (1984).
United States v. Cronic, 466 U.S. 648, 659 (1984); “counsel entirely fails to subject the
render assistance under circumstances where competent counsel very likely could
not,” Bell v. Cone, 535 U.S. 685, 696 (2002) (citing Powell v. Alabama, 287 U.S. 45
(1932)). Here, Tsarnaev can show neither a complete denial of counsel sufficient for
the discoverability of classified and other sensitive information did not deprive
Tsarnaev of the assistance of counsel. The right to counsel does not include a right to
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litigate discovery issues. If it did, then other discovery obligations such as the due
Court recognized in Ritchie that ex parte proceedings “den[y]” the defendant “the
benefits of an ‘advocate’s eye.’” Ritchie, 480 U.S. at 60. Yet the Court found no
constitutional problem because the trial court was “obligated to release information
material to the fairness of the trial.” Id. Counsel’s lack of access to information that
is not favorable and material cannot deprive a defendant of his right to effective
counsel.
Other courts of appeals have rejected claims that ex parte proceedings in similar
circumstances violated the right to counsel. For example, in Lustyik, 833 F.3d at
1269-70, the Tenth Circuit rejected the defendant’s claim that his counsel’s inability to
United States v. Sedaghaty, 728 F.3d 885, 910 (9th Cir. 2013), the court held that a
protective order that prevented defense counsel from using classified information at
trial “did not violate [the defendant’s] right to counsel or his right to present a
defense,” because the order was “justified by compelling national security concerns
and the restrictions were limited to a single document that was not relevant to the
charges.” And in United States v. Moussaoui, 591 F.3d 263, 288-89 (4th Cir. 2010), the
court rejected the defendant’s challenge to a protective order that prohibited his
counsel from discussing classified exculpatory evidence with him. Where, as here, the
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above), Tsarnaev does not challenge the district court’s determinations that the
information it reviewed in camera was not discoverable, and he does not ask this Court
to review the information in camera. Instead, he puts all of his eggs in one basket,
asking this Court to drastically depart from precedent and hold that the ex parte
proceedings below were reversible error regardless of whether they involved any
But even if the ex parte proceedings below were somehow improper, Tsarnaev
suffered no prejudice because the information that was withheld would not have
affected the trial’s outcome. The government disclosed 13 of the originally ex parte
filings to the defense nearly two years before Tsarnaev filed his opening brief in his
Court, yet Tsarnaev does not claim on appeal that any of those filings were
The government previously provided both this Court and Tsarnaev with a
description of the remaining ex parte documents and a brief explanation for why they
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should remain ex parte. Sealed.App.199-203. This Court can review those documents,
as well as the classified documents to which they refer. That review will confirm that
the district court correctly determined that the information withheld from Tsarnaev
was not discoverable under Rule 16, Brady, or any other basis. Thus, even if the
district court erred by conducting ex parte proceedings, any such error did not affect
Tsarnaev’s substantial rights and would not entitle him to a new trial.
XIV. The Grand and Petit Jury Wheels Did Not Underrepresent African-
Americans.
Tsarnaev argues (Br. 444-52) that the grand and petit jury wheels in the Eastern
resulting in a violation of the fair cross-section requirements of the Jury Selection and
Service Act, 28 U.S.C. § 1861, and the Sixth Amendment. He recognizes, however,
that this Court’s precedent “forecloses this claim.” Br. 444. And although he argues
that this Court’s decisions “should be overruled,” Br. 451, he has not asked the Court
to hear this case en banc, nor does he explain how a panel of the Court could overrule
circuit precedent.
A. Background
The Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861-1878, directs
each federal district court to devise and execute “a written plan for random selection
of grand and petit jurors,” § 1863(a), and provides a procedural mechanism through
which a criminal defendant may contest any “substantial failure to comply with” the
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Act, § 1867(a). The Act provides that “[t]he plan for the district of Massachusetts
may require the names of prospective jurors to be selected from the resident list
Under the Plan for Random Selection of Jurors for the District of
Massachusetts, the Jury Commissioner selects names at random from the resident list
and transmits them to the Clerk of the Court, who then places at least 35,000 names
into the Master Jury Wheel, ensuring that each county is “represented in proportion
to the number of names on its resident lists.” United States District Court for the
District of Massachusetts Jury Plan for Random Selection of Jurors § 6(a) (Mar. 3,
the Clerk draws a large number of names at random from the Master Jury Wheel and
sends summonses and qualification forms to those persons. Id. § 6(a), (c). Qualified
jurors who are not exempted or excused and who report when summoned become
Before jury selection in this case, Tsarnaev moved to dismiss the indictment,
from which the grand jury was drawn. Doc. 506. He included evidence that, from
District of Massachusetts’s Eastern Division but only 3.94% of the qualified jury
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applying an absolute disparity analysis that would foreclose his claim. Add.423; Doc.
506 at 12. Consistent with that precedent, the district court concluded that the
absolute disparity of 2.06% did not establish a prima facie claim under the Sixth
basis that African-Americans were underrepresented in the qualified jury wheel from
which his petit jury was drawn. Doc. 1080. He included evidence that African-
Americans made up 6.14% of the jury-eligible population, but only 4.25% of the
qualified jury wheel for his petit jury. 25.App.11520. The district court denied this
motion, concluding that the 1.89% absolute disparity did not establish a prima facie
claim. Add.481-82.
B. Standard of review
When addressing fair cross-section claims, this Court “review[s] the district
court’s findings of fact for clear error and its conclusions of law de novo.” United
and the Jury Selection and Service Act give criminal defendants the right to have a
petit jury selected from a venire representing a fair cross-section of the community.
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Taylor v. Louisiana, 419 U.S. 522, 526 (1975); 28 U.S.C. § 1861. This right extends to
the selection of the grand jury as well. United States v. Hafen, 726 F.2d 21, 22-23 (1st
(1) “that the group alleged to be excluded is a ‘distinctive’ group in the community,”
(2) “that the representation of this group in venires from which juries are selected is
not fair and reasonable in relation to the number of such persons in the community,”
and (3) “that this underrepresentation is due to systematic exclusion of the group in
the jury-selection process.” Duren v. Missouri, 439 U.S. 357, 364 (1979). If a defendant
establishes a prima facie case, the burden shifts to the government to show that “a
significant state interest [is] manifestly and primarily advanced by those aspects of the
Tsarnaev cannot satisfy the second requirement for establishing a prima facie
Court has adopted an “absolute disparity analysis,” which “measures the difference
population and the percentage of group members on the jury wheel.” Royal, 174 F.3d
at 6-7. The Court has consistently rejected claims of underrepresentation where the
disparity is greater than the 2.06% and 1.89% absolute disparities present here. See
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Royal, 174 F.3d at 10-11 (2.97% absolute disparity); United States v. Joost, 94 F.3d 640,
1996 WL 480215, at *8 (1st Cir. 1996) (table decision) (7.13% absolute disparity);
Hafen, 726 F.2d at 23 (2.02% absolute disparity). Cf. Duren, 439 U.S. at 365 (prima
facie violation was established where absolute disparity was 39%). Indeed, Tsarnaev
acknowledges that the district court’s denial of his fair cross-section claim was
Tsarnaev argues, however, that “Royal and Hafen should be overruled” and that
“this Court should assess fair cross-section claims using comparative disparity, either
alone or in conjunction with other statistical measures.” Br. 451. He argues (Br. 449-
51) that comparative disparity—which “is calculated by dividing the absolute disparity
percentage by the percentage of the group in the population,” Royal, 174 F.3d at 7—
provides a better measure. And he asserts that the comparative disparities of 34.29%
(grand jury) and 30.73% (petit jury) in this case would establish underrepresentation.
Br. 451.
Tsarnaev does not explain how this panel can “overrule[ ]” Royal and Hafen.
This panel is bound by those cases unless an intervening decision from the Supreme
Court or the en banc court has overruled them or called them into question. Royal,
174 F.3d at 9; United States v. Barbosa, 896 F.3d 60, 74 (1st Cir.), cert. denied, 139 S. Ct.
567 (2018). And Tsarnaev points to no authority overruling or undermining Royal and
Hafen. Nor has he requested an initial en banc hearing under Federal Rule of
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Appellate Procedure 35. Therefore, this Court need not consider his claim any
further.
Even if the en banc Court were to consider the issue, Tsarnaev has not shown
sufficient reason to overrule Royal and Hafen. This Court has repeatedly “rejected
comparative disparity analysis,” and its “choice of absolute disparity over comparative
disparity . . . is in keeping with the choices made by many of [its] sister circuits.”
Royal, 174 F.3d at 7-8. Tsarnaev raises no arguments that this Court has not already
considered and rejected. See id. at 7-9; Hafen, 726 F.2d at 24.
This case would also be a poor vehicle for en banc review for two reasons.
First, Tsarnaev cannot show that he would be entitled to relief even under the
comparative disparity analysis adopted by other circuits. Some circuits have found no
underrepresentation where the comparative disparities were higher than the 34.29%
and 30.73% disparities here. See United States v. Orange, 447 F.3d 792, 798-99 (10th Cir.
2006) (noting the court had upheld selection procedures with comparative disparities
of up to 59.84%); Ramseur v. Beyer, 983 F.2d 1215, 1232 (3d Cir. 1992) (en banc)
Americans, he could not show that the underrepresentation resulted from “systematic
exclusion of the group in the jury-selection process.” Duren, 439 U.S. at 364. As this
Court has noted, the Massachusetts residence lists provide “the broadest data
available,” and there is no evidence “that data more conducive to a fair cross section
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are available.” United States v. Pion, 25 F.3d 18, 23 (1st Cir. 1994). Moreover, “since
the names included in the Master Jury Wheel are randomly drawn from the most
inclusive data available, and random selection also determines to whom juror
questionnaires are mailed, there can be no reasonable inference that the jury-selection
municipal resident lists.” Doc. 506 at 14; Doc. 1080 at 13. He provided no evidence
for this claim, and a court-appointed expert has previously found no evidence of such
underrepresentation in the residence lists. See United States v. Green, 389 F. Supp. 2d
29, 48, 59-60 (D. Mass. 2005), overruled on other grounds by In re United States, 426 F.3d 1
Americans in the Eastern Division’s jury pool stems from other factors, including that
summonses are more often undeliverable or unanswered “in areas that contain[ ]
more poor or minority inhabitants.”77 In re United States, 426 F.3d at 4. See Royal, 174
F.3d at 5 (expert found that “summonses failed twice as often in areas in which more
than 50% of the population is black than they did in areas in which blacks make up
less than 2% of the population”); Green, 389 F. Supp. 2d at 62 n.60 (noting that “[t]he
caused by a correctable systematic defect like those that the Supreme Court has found
sufficient to establish a prima facie violation of the Sixth Amendment. See Taylor, 419
U.S. at 523 (women could serve on a jury only if they had previously filed a written
declaration of willingness to do so); Duren, 439 U.S. at 359-60 (women were granted
an automatic exemption from jury service upon request). Thus, even if this Court
were to grant en banc review and adopt a comparative disparity analysis, Tsarnaev
XV. The Death Penalty Is Not Plainly Cruel and Unusual Punishment as
Applied to Tsarnaev Based on His Age (19) at the Time of His Offenses.
Tsarnaev’s final claim is that this Court should vacate his death sentence
because he “was just 19 years old when he committed the crimes” in this case. Br.
453. He asks this Court to “hold that those who commit their crimes as ‘emerging
adults,’ when they [a]re under 21 years old, are categorically exempt from the death
penalty.” Id. Tsarnaev failed to preserve this argument below, and it is effectively
foreclosed by Roper v. Simmons, 543 U.S. 551 (2005), which drew a bright line for death
eligibility at age 18. Tsarnaev’s arguments do not support his contention that this
review.
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A. Standard of review
Tsarnaev argued below that the FDPA was unconstitutional on several grounds
that he recognized were foreclosed by this Court’s precedent, including that the Act
violates the Fifth Amendment’s Indictment Clause and that it is applied in a racially
and geographically disparate manner. Doc. 291. See Sampson I, 486 F.3d at 20-29
(rejecting such challenges to the Act). But he never argued that a death sentence was
unconstitutional as applied to him based on his age. Because he forfeited this claim,
B. Because the Supreme Court has specifically held that the death
penalty is permissible for those 18 or older at the time of their
offense, it was not plain error to apply the death penalty to
Tsarnaev.
In Roper v. Simmons, 543 U.S. 551, 578 (2005), the Supreme Court held that the
Eighth Amendment “forbid[s] imposition of the death penalty on offenders who were
under the age of 18 when their crimes were committed.” The Court found evidence
of a “national consensus against the death penalty for juveniles.” Id. at 564. At the
time, 30 states prohibited the death penalty for juveniles—18 states by “express
juveniles, the Court noted “[t]hree general differences” between adults and those
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under 18 that justified its holding. Roper, 543 U.S. at 569. First, adolescents often
“often result in impetuous and ill-considered actions and decisions.” Id. (quotations
and outside pressures, including peer pressure.” Id. Third, “the character of a
juvenile is not as well formed as that of an adult,” meaning that “[f]rom a moral
Roper recognized that “[d]rawing the line at 18 years of age” was “subject . . . to
the objections always raised against categorical rules.” Roper, 543 U.S. at 574. “The
qualities that distinguish juveniles from adults do not disappear when an individual
turns 18.” Id. But “[t]he age of 18 is the point where society draws the line for many
purposes between childhood and adulthood,” and it was, the Court concluded, “the
age at which the line for death eligibility ought to rest.” Id.
Because Roper clearly drew the line for death eligibility at age 18, Tsarnaev
cannot show that it was error—much less a “clear or obvious” error—to impose a
death sentence on him. United States v. Marcus, 560 U.S. 258, 262 (2010) (quotations
omitted). And even if Tsarnaev had preserved this claim, it would fail on de novo
Roper’s reasoning to a new situation. Cf. Los Angeles County, Cal. v. Humphries, 562 U.S.
29, 38 (2010) (noting that “[a] holding . . . can extend through its logic beyond the
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specific facts of the particular case”). It would require this Court to say that Roper
drew the line in the wrong place. “[T]his court normally is bound by a Supreme Court
precedent unless and until the Court itself disavows that precedent.” United States v.
Richards, 456 F.3d 260, 262 (1st Cir. 2006). Indeed, even where Supreme Court
Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989), or rests on
“increasingly wobbly, moth-eaten foundations,” State Oil Co. v. Khan, 522 U.S. 3, 20
(1997) (quotations omitted), it remains the “Court’s prerogative alone to overrule one
Tsarnaev contends that “[t]wo major changes” in the 14 years since Roper “have
altered the justification for a strict age-18 cutoff.” Br. 456. First, he asserts that
“scientific research has explained the effects of brain maturation, or the lack thereof,
on the behavioral and decision-making abilities of late adolescents in their late teens
and early twenties.” Id. But Tsarnaev cannot point to scientific research regarding
brain maturation that is substantially different from the research available when Roper
was decided. See Roper, 543 U.S. at 569, 573 (citing scientific sources). He first points
to a May 2017 report by the United States Sentencing Commission entitled “Youthful
arch-and-publications/research-publications/2017/20170525_youthful-offenders.pdf.
That report states that “[t]he contribution that neuroscience has made to the study of
“researchers agree that [brain] development continues into the 20s.” Id. at 6-7. The
report, however, relied primarily on studies conducted in 2002 and 2005, at or before
the time of Roper. Id. at 6-7 & nn. 29-32. And the report did not conclude that
offenders between the ages of 18 and 20 should be subject to lower penalties than
those age 21 or older. It simply cited the relevant research to explain why, “for
Next, Tsarnaev points to the American Bar Association’s resolution calling for
the prohibition of capital punishment for those younger than 21 at the time of their
https://www.americanbar.org/content/dam/aba/images/abanews/mym2018res/111
.pdf. The resolution asserts that “the line drawn by the U.S. Supreme Court no longer
fully reflects the state of the science on adolescent development,” though it admits
that “there were findings that pointed to this conclusion prior to 2005.” Id. at 6-7. In
fact, the Supreme Court was fully aware at the time of Roper that “[t]he qualities that
distinguish juveniles from adults do not disappear when an individual turns 18.”
Roper, 543 U.S. at 574. Yet the Court still concluded that 18 was an appropriate age at
which to draw the line. Id. The ABA’s contrary view does not indicate that Roper was
wrongly decided.
the death penalty” for offenders between the ages of 18 and 20. Br. 460. He is
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incorrect. In fact, as one of Tsarnaev’s sources points out, not a single state with an
active death penalty scheme prohibits the death penalty for 18- to 20-year-olds. 78
Brian Eschels, Data & the Death Penalty: Exploring the Question of National Consensus
Against Executing Emerging Adults in Conversation with Andrew Michaels’s A Decent Proposal:
Exempting Eighteen- to Twenty-Year-Olds From the Death Penalty, 40 N.Y.U. Rev. L. & Soc.
https://socialchangenyu.com/wp-content/uploads/2016/06/eschels-compliment-
one jurisdictions do not have the death penalty at all,” Br. 461, but that hardly
eighteen- to twenty-year-olds from the death penalty, the United States would be
Death Penalty, 40 N.Y.U. Rev. L. & Soc. Change 139, 159 & n.120 (2016). Only Cuba
and Iran draw the line at age 21. Id. Indeed, Roper noted that its holding was
supported by the United Nations Convention on the Rights of the Child, which
prohibits capital punishment “for crimes committed by juveniles under 18.” Roper,
In 2017, a Kentucky trial court held that the death penalty is unconstitutional
78
for offenders younger than age 21, but that decision is currently under review in the
Kentucky Supreme Court. See Commonwealth v. Bredhold, No. 14-CR-161 (Fayette
Circuit Court, 7th Div. Aug. 1, 2017).
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543 U.S. at 576. Tsarnaev’s position is therefore inconsistent even with the
that the death penalty is rarely imposed on those under 21. Br. 463. But the data on
which he relies do not support that claim. According to Tsarnaev’s own source, of
the 28 states that executed at least one adult between 2001 and 2015, 15 of those
states executed offenders who were between 18 and 20 years old at the time of their
offenses. Eschels, Data & the Death Penalty, at 152. This shows that more than half of
the states that used the death penalty during that period applied it to 18- to 20-year-
olds, even though that three-year age window is only a small fraction of the total adult
population. The same article indicates that 18- to 20-year-olds accounted for 17.8%
of total executions between 2001 and 2015, id., and the data upon which the article
relied show that 18- to 20-year-olds accounted for about 18.8% of the total arrests for
Justice Statistics, U.S. Dep’t of Justice, Arrest in the United States, 1990-2010, at 17-
arrests). This suggests that the states apply the death penalty to 18- to 20-year-olds at
population.
Finally, Tsarnaev points out that from 2001 to 2015, “[a]pproximately 78% of
executions carried out . . . on those who had been emerging adults at the time of their
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crimes occurred in just four states: Texas, Oklahoma, Virginia, and Ohio.” Br. 463.
Considering that three of those same states led the way in executions of those 21 years
old and older, however, this is hardly surprising. See Eschels, Data & the Death Penalty
at 152 (noting that “the top four full-adult executing states (which were the same, save
against applying the death penalty to 18- to 20-year-old offenders. Indeed, more than
half the states that used the death penalty between 2001 and 2015 executed at least
one person who was 18, 19, or 20 years old at the time of his offense. Id.
Roper held that 18 is “the age at which the line for death eligibility ought to
rest.” Roper, 543 U.S. at 574. Tsarnaev has not pointed to scientific or consensus-
related data that undermines this conclusion, and even if he did, it would not provide
grounds for this Court to take the extraordinary step of saying that Roper drew the
wrong line. See Khan, 522 U.S. at 20. At the very least, Tsarnaev cannot show that the
district court committed clear or obvious error by failing to take that step sua sponte.
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CONCLUSION
This Court should affirm the judgment of the district court.
Respectfully submitted,
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CERTIFICATE OF COMPLIANCE
1. This brief complies with the Court’s order granting the government
leave to file an oversized brief because this brief contains 101,283 words, excluding
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief
s/ William A. Glaser
WILLIAM A. GLASER
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CERTIFICATE OF SERVICE
I hereby certify that on June 27, 2019, I electronically filed the foregoing
document with the United States Court of Appeals for the First Circuit using the
CM/ECF system. I certify that all participants in the case are registered CM/ECF
s/ William A. Glaser
WILLIAM A. GLASER