United States v. Tsarnaev

United States Court of Appeals
For the First Circuit
No. 16-6001
UNITED STATES OF AMERICA,
Appellee,
v.
DZHOKHAR A. TSARNAEV,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
Daniel Habib, with whom Deirdre D. von Dornum, David Patton,
Mia Eisner-Grynberg, Anthony O'Rourke, Federal Defenders of New
York, Inc., Clifford Gardner, Law Offices of Cliff Gardner, Gail
K. Johnson, and Johnson & Klein, PLLC were on brief, for appellant.
John Remington Graham on brief for James Feltzer, Ph.D., Mary
Maxwell, Ph.D., LL.B., and Cesar Baruja, M.D., amici curiae.
George H. Kendall, Squire Patton Boggs (US) LLP, Timothy P.
O'Toole, and Miller & Chevalier on brief for Eight Distinguished
Local Citizens, amici curiae.
David A. Ruhnke, Ruhnke & Barrett, Megan Wall-Wolff, Wall-
Wolff LLC, Michael J. Iacopino, Brennan Lenehan Iacopino & Hickey,
Benjamin Silverman, and Law Office of Benjamin Silverman PLLC on
brief for National Association of Criminal Defense Lawyers, amicus
curiae.
William A. Glaser, Attorney, Appellate Section, Criminal
Division, U.S. Department of Justice, with whom Andrew E. Lelling,
United States Attorney, Nadine Pellegrini, Assistant United States
Attorney, John C. Demers, Assistant Attorney General, National
Security Division, John F. Palmer, Attorney, National Security
Division, Brian A. Benczkowski, Assistant Attorney General, and
Matthew S. Miner, Deputy Assistant Attorney General, were on brief,
for appellee.
July 31, 2020
THOMPSON, Circuit Judge.
OVERVIEW
Together with his older brother Tamerlan, Dzhokhar
Tsarnaev detonated two homemade bombs at the 2013 Boston Marathon,
thus committing one of the worst domestic terrorist attacks since
the 9/11 atrocities.1 Radical jihadists bent on killing Americans,
the duo caused battlefield-like carnage. Three people died. And
hundreds more suffered horrific, life-altering injuries.
Desperately trying to flee the state, the brothers also gunned
down a local campus police officer in cold blood. Reports and
images of their brutality flashed across the TV, computer, and
smartphone screens of a terrified public — around the clock, often
in real time. One could not turn on the radio either without
hearing something about these stunningly sad events.
Dzhokhar eventually got caught, though Tamerlan died
after a violent confrontation with the police.
Indicted on various charges arising from these ghastly
events, Dzhokhar stood trial about two years later in a courthouse
just miles from where the bombs went off. Through his lawyers, he
conceded that he did everything the government alleged. But he
1 We will sometimes use first names in this opinion, not out
of disrespect or as a sign of familiarity but to avoid confusing
references to persons with the same last name.
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insisted that Tamerlan was the radicalizing catalyst, essentially
intimidating him into acting as he had. See 18 U.S.C. § 3592(a)(4)
(providing that relative culpability is a mitigating factor
relevant to the imposition of a death penalty). Apparently
unconvinced, a jury convicted him of all charges and recommended
a death sentence on several of the death-eligible counts — a
sentence that the district judge imposed (among other sentences).
A core promise of our criminal-justice system is that
even the very worst among us deserves to be fairly tried and
lawfully punished — a point forcefully made by the then-U.S.
Attorney for Massachusetts during a presser at the trial's end.2
To help make that promise a reality, decisions long on our books
say that a judge handling a case involving prejudicial pretrial
publicity must elicit "the kind and degree" of each prospective
juror's "exposure to the case or the parties," if asked by counsel,
see Patriarca v. United States, 402 F.2d 314, 318 (1st Cir. 1968)
— only then can the judge reliably assess whether a potential juror
can ignore that publicity, as the law requires, see United States
v. Vest, 842 F.2d 1319, 1332 (1st Cir. 1988).3 But despite a
2 See Michele Gorman, Boston Marathon Bomber Tsarnaev
Sentenced to Death, Newsweek (May 15, 2015),
https://www.newsweek.com/boston-marathon-bomber-dzhokhar-
tsarnaev-sentenced-332032.
3 For simplicity's sake, we will occasionally call this the
"Patriarca standard."
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diligent effort, the judge here did not meet the standard set by
Patriarca and its successors.
Another error forces us to act as well, this one
involving the judge's denial of Dzhokhar's post-trial motion for
judgments of acquittal. Navigating a complex and changing area of
the law, the judge let stand three of Dzhokhar's convictions for
carrying a firearm during crimes of violence, in violation of 18
U.S.C. § 924(c). The judge thought that each of the underlying
offenses constituted a crime of violence. But with respect (and
with the luxury of time that district judges rarely have), we
believe the current state of the law propels us toward the opposite
conclusion.
The first error requires us to vacate Dzhokhar's death
sentences and the second compels us to reverse the three § 924(c)
convictions. On remand, then, the district court must enter
judgments of acquittal on the relevant § 924(c) charges, empanel
a new jury, and preside over a new trial strictly limited to what
penalty Dzhokhar should get on the death-eligible counts.4 And
just to be crystal clear: Because we are affirming the convictions
(excluding the three § 924(c) convictions) and the many life
4"Remand" is legalese for "[t]he act or an instance of sending
something (such as a case, claim, or person) back for further
action." See Remand, Black's Law Dictionary (11th ed. 2019).
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sentences imposed on those remaining counts (which Dzhokhar has
not challenged), Dzhokhar will remain confined to prison for the
rest of his life, with the only question remaining being whether
the government will end his life by executing him.
What follows is an explanation of our reasoning, as well
as our take on certain issues that may recur on remand.5
HOW THE CASE CAME TO US
The facts of today's appeal are painful to discuss. We
apologize for their graphic detail. We also do not attempt to
cover all of the case's complicated events in this section —
instead we offer only a summary, adding more information during
our discussion of particular issues.
Bombings
On Patriots' Day 2013 — April 15, to be exact, a local
holiday celebrating the first battles of the American Revolution
— the Tsarnaev brothers set off two shrapnel bombs near the finish
line of the world-famous Boston Marathon, leaving the area with a
5 Before going on, we wish to compliment counsel for both
sides for their helpful briefs and arguments. We never hesitate
to call out lawyers who fail to meet the minimum professional
standards expected of them. So it is only fair that we thank
today's attorneys for their exceptional performance in this most
serious and high-profile case. And while our views on some of the
issues differ from the district judge's, we commend him for all
his hard work in very trying circumstances.
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ravaged, combat-zone look.6 BBs, nails, metal scraps, and glass
fragments littered the streets and sidewalks. Blood and body parts
were everywhere — so much so that it seemed as if "people had just
been dropped like puzzle pieces onto the sidewalk" (a description
taken from a witness's trial testimony). The smell of smoke and
burnt flesh filled the air. And screams of panic and pain echoed
throughout the site. "Mommy, mommy, mommy," a five-year-old boy
cried out over and over again, his leg cut to the bone. Others
yelled "help us," "we're going to die," or "stay with me."
Now brace yourself for how Marathon-goers Krystle
Campbell, Lingzi Lu, and Martin Richard spent the last few minutes
of their lives.
Krystle Campbell was watching the race with her friend
Karen Rand (now known as Karen McWatters) when the first bomb went
off. Rand got knocked to the ground. But she dragged herself
over to Campbell, burning herself on hot metal pieces as she did
so. She put her face next to Campbell's and held her hand.
Campbell was "complete[ly] mutilat[ed]" from the waist down.
Speaking very slowly, Campbell said her "legs hurt" — even though
they had been blown off. Moments later, her hand went limp in
Rand's. And she never spoke again, bleeding to death right there.
6 All relevant activities occurred in Massachusetts.
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Lingzi Lu was with her friend Danling Zhou as the second
bomb exploded. Zhou got a gash across her stomach, requiring her
to hold her insides in. While Lu had her arms and legs, she did
have a significant thigh injury. "[B]asically her leg had been
filleted open down to the bone," a doctor on the scene later said.
He tried to tourniquet the wound. But she had lost a lot of blood
and didn't have much of a pulse. Despite knowing that she was
going to die, the doctor asked a nearby person to start CPR. A
firefighter later moved in and pumped air into Lu's mouth with his
mask. And a police officer did chest compressions, telling her,
"[S]tay with us. You can do this. You're going to be okay. Stay
strong." He and others put Lu on a backboard and placed her in an
ambulance. But a paramedic told them to get her off because she
"was gone" and he needed to keep the ambulance free for those who
could be "save[d]."
The second bomb also sent BBs and nails tearing through
eight-year-old Martin Richard's body, cutting his spinal cord,
pancreas, liver, kidney, spleen, large intestine, and abdominal
aorta, and nearly severing his left arm. He bled to death on the
sidewalk — with his mother leaning over him, trying to will him to
live. Searching for his two other children, Martin's father, Bill,
first found son Henry (age twelve) and then daughter Jane (age
six). Jane tried to stand up but fell — because her left leg was
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gone. Bill carried her for a bit. And then an off-duty firefighter
tourniqueted the leg, saving her life.
Not only did the Tsarnaev brothers kill Krystle
Campbell, Lingzi Lu, and Martin Richard, they also consigned
hundreds of others to a lifetime of unimaginable suffering. Some
lost one or more limbs, blown off as they stood near the finish
line or amputated later because they were so badly mangled. Others
lost sight, still others hearing. And years after the bombings,
many still had debris in their bodies. One survivor had shrapnel
in her that occasionally worked its way to the surface and had to
be removed; another had a ball bearing stuck in his brain — to
give just a few examples.
Manhunt and Capture
Leaving the scene, Dzhokhar and Tamerlan drove to
Cambridge and stopped at a Whole Foods. Dzhokhar went in, grabbed
a bottle of milk, paid for it, and left. About a minute later, he
returned to the store and exchanged the bottle for a different
one.
Back at his school the next day (UMass Dartmouth, as it
is known locally), Dzhokhar resumed his normal routine. He worked
out with a friend at the campus gym, for example. "I'm a stress
free kind of guy," he tweeted.
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Aided by a description given by a man from his hospital
bed, as well as by videos from security cameras and bystanders'
cell phones, law enforcement released images of the bombers two
days later on April 18, and asked the public to help identify them
and provide information about their whereabouts. The FBI (short
for the Federal Bureau of Investigation) produced a "wanted poster"
on its website and asked the local community to give any details
that could lead to their arrests.
That night, still April 18, Tamerlan and Dzhokhar put
pipe bombs, a handgun, and a shrapnel bomb (similar to the ones
they exploded at the Marathon) into Tamerlan's Honda Civic and
drove off from his Cambridge home. Passing by the Massachusetts
Institute of Technology ("MIT," from now on), they spotted the
squad car of campus police officer Sean Collier. Approaching the
squad car from behind, the brothers shot Collier dead at close
range — twice in the side of the head, once between the eyes, and
three times in the hand. They tried and failed to take his gun
(the holster's retention system tripped them up, apparently).
Startled by an MIT student riding by on a bike, they got back in
the Honda and sped away.
The brothers then drove to Brighton where they crossed
paths with Dun Meng, who was sitting in his parked Mercedes SUV.
After pulling up behind him, Tamerlan got out of the Honda and
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knocked on Meng's passenger window. Meng rolled the window down.
Tamerlan leaned in, opened the door, jumped in, aimed a gun at
him, and demanded cash. A frightened Meng handed over his wallet.
Explaining that he had exploded the bombs at the Marathon and had
just killed Collier, Tamerlan ordered Meng to drive. So drive
Meng did. Dzhokhar followed behind in the Honda.
Tamerlan eventually had Meng pull over on a street in
Watertown. Tamerlan got into the Mercedes's driver's seat. Meng
got into the Mercedes's front passenger's seat. And after parking
the Honda, Dzhokhar got into the Mercedes's back passenger's seat.
Tamerlan drove to an ATM. Dzhokhar withdrew $800 from Meng's
account using Meng's bank card and PIN ($800 was the card's
withdrawal limit).
Tamerlan drove back to his Honda to get a music CD with
nasheeds on them (nasheeds are Islamic chants). He played the CD
in the Mercedes — music that sounded a "bit weird" and "religious"
to Meng. Tamerlan then stopped for gas in Cambridge. Fearing
this might be his last chance to escape, Meng made a break for it,
sprinting across the street to a different gas station where he
begged the attendant to call the police. Tamerlan and Dzhokhar
took off in the Mercedes.
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Meng told the arriving officers that the carjackers were
the Boston Marathon bombers. He also told them that his Mercedes
had a built-in tracking system.
Good police work then led authorities to the Tsarnaev
brothers in Watertown, where the two had returned to get the Honda.
Tamerlan got out of the Mercedes. Dzhokhar got out of the Honda.
Tamerlan started shooting at the officers. And he and Dzhokhar
threw some pipe bombs and a larger bomb that looked "like a big
cooking pot." A couple of the bombs exploded.
After getting shot, and having possibly run out of
bullets, Tamerlan tossed his gun at one of the officers and ran
toward them. They wrestled him to the ground, however. Dzhokhar
got back in the Mercedes. And while trying to make his getaway,
he ran over his brother, who died hours later.
Also hurt in the shootout was MBTA police officer Richard
Donohue. He nearly bled to death after a bullet hit his groin
area. It took months in a hospital to recover from his injury.
Back to Dzhokhar. He could only drive about two blocks,
because the police had damaged the Mercedes's tires. So he exited
the car and fled on foot. In a nearby backyard, he found a boat
shrink-wrapped in plastic and climbed inside. And he stayed there
overnight, bleeding from his wounds.
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Dzhokhar did, however, have enough strength to write a
manifesto justifying his actions. On two wooden slats attached to
the boat he carved the words, "Stop killing our innocent people
and we will stop." "God has a plan for each person," he wrote on
the fiberglass hull (with a pencil he found on the boat). "Mine
was to hide in this boat and shed light on our actions."
"[J]ealous" of Tamerlan's martyrdom, he accused "[t]he U.S.
Government [of] killing our innocent civilians." Stressing that
he could not "stand to see such evil go unpunished," he warned
that "we Muslims are one body, you hurt one, you hurt us all."
And finishing up, he wrote, "Now I don't like killing innocent
people it is forbidden in Islam but due to said [ ] it is allowed."7
With Dzhokhar still at large, then-Massachusetts
Governor Deval Patrick asked nearly a million citizens of Boston
and the five neighboring locales (Belmont, Cambridge, Newton,
Waltham, and Watertown) to "shelter in place" — that is, he told
them to remain behind closed doors and "not to open the door for
anyone other than a properly identified law enforcement officer."
He also asked schools and businesses to close — only hospitals and
law enforcement would stay open.
7 The bracket represents a portion obscured by a bullet hole.
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Later that day, on April 19, Watertown resident David
Henneberry noticed that his boat had some loose shrink wrap and
went out to fix it — by this time Governor Patrick had lifted the
shelter-in-place order, even though Dzhokhar was still a fugitive.
As Henneberry climbed up a ladder, he saw blood in the boat and a
person lying there with a hooded sweatshirt pulled over his head.
So he raced back inside his house and called 911.
Officers responded rapidly. And after Dzhokhar ignored
repeated requests to surrender, they threw flash-bang grenades
into the boat and fired a barrage of bullets at it. Officers
finally arrested him about 90 minutes after Henneberry's call.
An ambulance took Dzhokhar to a hospital where he
underwent hours of emergency surgery to treat his injuries —
injuries that included a gunshot wound to the left side of his
face and multiple gunshot wounds to his extremities. Doctors
sutured his left eye shut and wired his jaw closed. He could not
hear out of his left ear. He had to be intubated and took narcotic
pain meds intravenously. FBI agents questioned him off and on for
more than 13 hours over the next 36 hours without Miranda-izing
him8 — and without letting lawyers from the federal public
8Miranda v. Arizona says that before interrogating a
custodial suspect, officers must warn him
that he has the right to remain silent, that anything he
says can be used against him in a court of law, that he
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defender's office see him either. Most questions he answered by
nodding yes or no, or by writing his responses down in a notebook.
Repeatedly, he asked for a lawyer. But the agents told him that
he first needed to answer their questions "to ensure that the
public . . . was no longer in danger." Exhausted and in pain, he
asked the agents several times to stop questioning him. But the
record does not indicate whether the agents honored these requests.
At some point he told them that after the bombings, he and Tamerlan
fled Boston by car, and "[o]n the way back to Cambridge, they
stopped at a Whole Foods . . . to buy some milk" — the two "were
observing the Muslim tradition of fasting on Mondays and Thursdays
and needed milk to break the fast."
Unsurprisingly, the bombings and their aftermath
dominated Boston-area TV, radio, newspapers, and magazines — not
to mention web and social-media sites. Locals quickly adopted the
"Boston Strong" slogan to convey a message of courage and
resilience. And the Boston Strong movement remains vibrant to
this very day.
has the right to the presence of an attorney, and that
if he cannot afford an attorney one will be appointed
for him prior to any questioning.
384 U.S. 436, 479 (1966).
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Legal Proceedings
Eventually, a Boston-based federal grand jury indicted
Dzhokhar for crimes arising from his unspeakably brutal acts.9 The
9 The grand jury's 30-count indictment charged him with:
1. Conspiring to use a weapon of mass destruction resulting
in the deaths of Krystle Campbell, Sean Collier, Lingzi
Lu, and Martin Richard, in violation of 18 U.S.C. § 2332a.
2. Using a weapon of mass destruction (pressure cooker bomb
#1) resulting in the death of Krystle Campbell, in
violation of 18 U.S.C. § 2332a.
3. Possessing and using 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).
4. Using a weapon of mass destruction (pressure cooker bomb
#2) resulting in the deaths of Lingzi Lu and Martin
Richard, in violation of 18 U.S.C. § 2332a.
5. Possessing and using 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).
6. Conspiring to bomb a place of public use resulting in the
deaths of Krystle Campbell, Sean Collier, Lingzi Lu, and
Martin Richard, in violation of 18 U.S.C. § 2332f.
7. Bombing a place of public use (Marathon Sports) resulting
in the death of Krystle Campbell, in violation of 18 U.S.C.
§ 2332f.
8. Possessing and using 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).
9. Bombing a place of public use (Forum restaurant) resulting
in the deaths of Lingzi Lu and Martin Richard, in violation
of 18 U.S.C. § 2332f.
10. Possessing and using a firearm (pressure cooker bomb #2)
during and in relation to a crime of violence (Count 9)
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resulting in the murders of Lingzi Lu and Martin Richard,
in violation of 18 U.S.C. § 924(c) and (j).
11. Conspiring to maliciously destroy property resulting in
the deaths of Krystle Campbell, Sean Collier, Lingzi Lu,
and Martin Richard, in violation of 18 U.S.C. § 844(i) and
(n).
12. Maliciously destroying property (Marathon Sports and other
property) resulting in the death of Krystle Campbell, in
violation of 18 U.S.C. § 844(i).
13. Possessing and using 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).
14. Maliciously destroying property (Forum restaurant and
other property) resulting in the deaths of Lingzi Lu and
Martin Richard, in violation of 18 U.S.C. § 844(i).
15. Possessing and using a firearm (pressure cooker bomb #2)
during and in relation to a crime of violence (Count 14)
resulting in the murders of Lingzi Lu and Martin Richard,
in violation of 18 U.S.C. § 924(c) and (j).
16. Possessing and using 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. Possessing and using 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. Possessing and using 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).
19. Carjacking resulting in serious bodily injury to Richard
Donohue, in violation of 18 U.S.C. § 2119(2).
20. Possessing and using 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).
21. Interfering with commerce by threats or violence (obtaining
$800 using Dun Meng's ATM card and PIN), in violation of
18 U.S.C. § 1951.
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indictment also included a number of specific allegations
necessary for seeking capital punishment under the Federal Death
Penalty Act ("FDPA"), 18 U.S.C. §§ 3591-99, which governs aspects
of this case. And the government later notified him that it would
seek the death penalty on all 17 death-eligible counts (Counts 1-
10 and 12-18). See 18 U.S.C. § 3593(a).10
Because of the extensive pretrial publicity in the
Boston area, Dzhokhar filed motions to change venue before the
22. Possessing and using 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).
23. Using a weapon of mass destruction (pressure cooker bomb
#3), in violation of 18 U.S.C. § 2332a.
24. Possessing and using a firearm (Ruger 9mm and pressure
cooker bomb #3) during and relation to a crime of violence
(Count 23), in violation of 18 U.S.C. § 924(c).
25. Using a weapon of mass destruction (pipe bomb #1), in
violation of 18 U.S.C. § 2332a.
26. Using a firearm (Ruger 9mm and pipe bomb #1) during and in
relation to a crime of violence (Count 25), in violation
of 18 U.S.C. § 924(c).
27. Using a weapon of mass destruction (pipe bomb #2), in
violation of 18 U.S.C. § 2332a.
28. Possessing and using a firearm (Ruger 9mm and pipe bomb
#2) during and in relation to a crime of violence (Count
27), in violation of 18 U.S.C. § 924(c).
29. Using a weapon of mass destruction (pipe bomb #3), in
violation of 18 U.S.C. § 2332a.
30. Possessing and using a firearm (Ruger 9mm and pipe bomb
#3) during and in relation to a crime of violence (Count
29), in violation of 18 U.S.C. § 924(c).
10 That FDPA subsection says (emphasis ours) that
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guilt phase started (a capital trial has two phases, a guilt phase
and a penalty phase) — motions that the judge denied, though he
did promise to conduct a thorough and searching voir dire.11 A
[i]f, in a case involving an offense described in section
3591, the attorney for the government believes that the
circumstances of the offense are such that a sentence of
death is justified under this chapter, the attorney
shall, a reasonable time before the trial or before
acceptance by the court of a plea of guilty, sign and
file with the court, and serve on the defendant, a notice
—
(1) stating that the government believes that the
circumstances of the offense are such that, if the
defendant is convicted, a sentence of death is
justified under this chapter and that the government
will seek the sentence of death; and
(2) setting forth the aggravating factor or factors
that the government, if the defendant is convicted,
proposes to prove as justifying a sentence of death.
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. The court may permit the attorney for the
government to amend the notice upon a showing of good
cause.
We will have more to say about the italicized language later.
11 Dzhokhar twice petitioned unsuccessfully for a writ of
mandamus compelling the judge to grant a change of venue (with one
judge dissenting each time). See In re Tsarnaev, 780 F.3d 14, 29
(1st Cir. 2015) (per curiam) ("Tsarnaev II"); In re Tsarnaev, 775
F.3d 457, 457 (1st Cir. 2015) (mem.) ("Tsarnaev I"). See generally
Mandamus, Black's Law Dictionary (11th ed. 2019) (explaining that
a mandamus is a "writ issued by a court to compel performance of
a particular act by a lower court or a governmental officer or
body, usu[ally] to correct a prior action or failure to act"). We
did say, though, that if a jury convicted him "on one or more of
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French phrase that (roughly translated) means "to speak the truth,"
voir dire (as relevant here) "is a process through which a judge
or lawyer examines a prospective juror to see if the prospect is
qualified and suitable to serve on a jury." See United States v.
Parker, 872 F.3d 1, 3 n.1 (1st Cir. 2017) (quotation marks
omitted). But the judge stopped Dzhokhar's counsel from asking
prospective jurors questions like "[w]hat did you know about the
facts of this case before you came to court today (if anything)?"
and "[w]hat stands out in your mind from everything you have heard,
read[,] or seen about the Boston Marathon bombing and the events
that followed it?"
During the guilt phase of his trial, Dzhokhar's lawyers
did not dispute that he committed the charged acts. Rather, their
guilt-phase defense rested on the idea that he participated in
these horrible crimes only under Tamerlan's influence. In her
opening statement, for instance, one of his attorneys said that
"[i]t was him" and that the defense would not "attempt to sidestep"
his "responsibility for his actions." But she said that his
terrorist path was "created by his brother." And in her closing
argument, she said that he "stands ready . . . to be held
responsible for his actions." Ultimately the jury convicted him
the charges against him," he could "raise the venue argument again"
in an appeal to us. Tsarnaev II, 780 F.3d at 28.
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on all counts after hearing testimony from nearly 100 witnesses
and after receiving over 1,000 exhibits.
The jury later reconvened for the penalty phase.12 The
parties combined to present some 60 witnesses and introduce over
180 exhibits. And after following the process just outlined, the
jury recommended the death penalty on six of the death-eligible
12 Here is an overview of how capital sentencing works.
Capital sentencing has two aspects: an "eligibility phase"
and a "selection phase." See Jones v. United States, 527 U.S.
373, 381 (1999). A defendant convicted of certain crimes —
intentionally killing the victim, for instance — can be declared
eligible for death if the jurors unanimously find beyond a
reasonable doubt that one of four intent elements and at least one
of sixteen aggravating factors are present. See id. at 376-77
(discussing the FDPA). If they find the defendant death-eligible,
they must — during the selection phase — decide by a unanimous
vote "whether the defendant should be sentenced to death, to life
imprisonment without the possibility of release or some other
lesser sentence." 18 U.S.C. § 3593(e). To recommend death, the
jurors must determine that "all the aggravating . . . factors found
to exist sufficiently outweigh all the mitigating . . . factors
found to exist." Id. In addition to listing aggravating factors,
the FDPA also lists mitigating factors. But the FDPA also allows
the parties to offer nonstatutory factors for the jurors to
consider as well. Id. § 3592(a), (c); id. § 3593(a). The jurors,
however, can find only aggravators for which the government gave
notice, id. § 3592(c) — though they can find additional mitigators
beyond those proposed by the defense, id. § 3593(a). And while
they must find any nonstatutory aggravator unanimously and beyond
a reasonable doubt, a single juror may find a mitigator by a
preponderance of the evidence and may "consider such factor
established . . . regardless of the number of jurors who concur
that the factor has been established." Id. § 3593(c)-(d).
Ultimately, if they cannot unanimously agree on a sentence of death
or life imprisonment without release, the job of sentencing falls
to the judge, see Jones, 527 U.S. at 380-81, who must impose either
a sentence of life without release or any lesser sentence permitted
by law, see 18 U.S.C. § 3594.
- 21 -
counts (Counts 4, 5, 9, 10, 14, and 15). The judge, for his part,
sentenced Dzhokhar to die, while also giving him a number of
concurrent and consecutive prison terms on the remaining counts —
including 20 life terms.
And this timely appeal ensued.
DISCUSSION
Dzhokhar's briefs raise 16 issues for review, many with
sub-issues and even sub-sub-issues. As we have previewed already,
the judge's Patriarca-based error compels us to vacate the death
sentences and his crime-of-violence errors require us to reverse
three § 924(c) convictions. Not only do we explain those errors
below. We also address other issues (even if just briefly) because
we know they are likely to resurface on remand. See generally
Swajian v. Gen. Motors Corp., 916 F.2d 31, 35 (1st Cir. 1990)
(taking a similar approach in a similar situation). So our opinion
proceeds as follows. Essentially taking the issues in the order
presented to us, we start with venue but pivot to the jury-
selection process — because the judge's promise to hold a searching
voir dire helped drive his decision to deny a venue change, but
his handling of voir dire did not measure up to the standards set
by Patriarca and other cases. We then touch on some matters (in
varying levels of detail) that could affect how the penalty retrial
on the death-eligible counts proceeds — matters like the retrial's
- 22 -
location, the government's failure to disclose evidence material
to punishment, the judge's admission of evidence, the
prosecution's behavior during opening statements and closing
arguments, the judge's jury instructions, the prosecution's
private communications with the judge, etc. And we last highlight
the errors in the judge's crime-of-violence analysis (this is one
of the most complex areas of American law, we must say — which is
why even well-meaning judges and lawyers sometimes make mistakes).
Trial Venue and Jury Selection
We start with Dzhokhar's claims that the judge erred in
how he handled the venue-change motions and the jury-selection
process (we have a lot to go over, so please bear with us).
Background
It is no exaggeration to say that the reporting of the
events here — in the traditional press and on different social-
media platforms — stands unrivaled in American legal history (at
- 23 -
least as of today). The highlights (or — as Dzhokhar sees some of
it — lowlights) of the coverage include:
 Starting with the bombings themselves, the reporting covered
the carnage-filled terror scene — with the sights and sounds
of the wounded and the dying in full display.13
 The reporting then covered the ensuing search for the bombers
— with images of Dzhokhar leaving a backpack behind Martin
Richard and walking away before it exploded, with Governor
Patrick's press-conference statements about sheltering-in-
place, and with at-the-scene videos showing agents removing
a bloodied Dzhokhar from the dry-docked boat.
 The reporting did not get every detail right, however — for
example, some falsely claimed that Dzhokhar scrawled "Fuck
America" in the boat.
 Other reporting mentioned his non-Miranda-ized statements to
agents at the hospital — statements not introduced at trial.
 The reporting also explored the lives and deaths of Krystle
Campbell, Lingzi Lu, Martin Richard, and Sean Collier —
touchingly describing the pain borne by their families and
foreshadowing much of the decedent-victim-impact evidence
To help lend perspective: Four of the Boston Globe's five
13
most-watched videos posted on its YouTube channel deal with the
bombings, nearly getting a combined 30 million views.
- 24 -
that the jury would hear. And the reporting anticipated much
of the testimony from badly-injured survivors — though it
sometimes spotlighted accounts from survivors who would never
testify.
 The reporting captured the views of prominent community
members about the penalty Dzhokhar deserved. For instance,
the Boston Globe reported that despite his past opposition to
capital punishment, the then-Boston mayor thought Dzhokhar
should "serve[] his time and [get] the death penalty." And
the Globe reported as well that a former Boston police
commissioner believed the government did the right thing in
seeking Dzhokhar's execution, given the evidence's strength.
 More still, the reporting generated lots of stories where
everyday people in the area called Dzhokhar a "monster," a
"terrorist," or a "scumbag[]." One article even asked if a
particular photo of Dzhokhar was "what evil looks like."
First Venue Motion
In June 2014, Dzhokhar moved (before jury selection) for
a change of venue, relying on this avalanche of pretrial publicity.
He essentially argued that polling data collected by his expert
showed potential jurors in the court's Eastern Division were more
likely to consider him guilty than those in the district's Western
Division, the Southern District of New York, and the District of
- 25 -
Columbia.14 Convinced that the circumstances triggered a
presumption of prejudice in the District of Massachusetts, he
"recommend[ed] the District of Columbia as the venue with the least
prejudicial attitudes."
Opposing this motion, the government argued that
Dzhokhar failed to show that "12 fair and impartial jurors cannot
be found" among the Eastern Division's "large, widespread, and
diverse" populace. The government also claimed that his expert's
analysis had a slew of problems, including the fact that courts in
other "highly-publicized trials have found" his expert's "opinions
unhelpful, misleading[,] or wrong." And the government suggested
that "[f]ar from 'demonizing'" Dzhokhar, "the local press has
largely humanized him . . ., portraying him as a popular and
successful student and the beloved captain of his high school
wrestling team."
14 The District Court for the District of Massachusetts sits
in Boston, Worcester, and Springfield. For jury-selection
purposes, the District is divided into three divisions: the
Eastern Division, which encompasses the state counties of Essex,
Middlesex, Norfolk, Suffolk, Bristol, Plymouth, Barnstable, Dukes,
and Nantucket; the Central Division, which encompasses the state
County of Worcester; and the Western Division, which encompasses
the state counties of Franklin, Hampshire, Hampden, and Berkshire.
Boston is in Suffolk County. Cambridge and Watertown are in
Middlesex County. So these three cities are part of the Eastern
Division, for example.
- 26 -
Applying the factors outlined in Skilling v. United
States, 561 U.S. 358 (2010), the judge denied Dzhokhar's motion in
September 2014.15 Among other points, the judge noted that the
district's Eastern Division has about "five million people," with
many of them living outside of Boston — so, he emphasized, "it
stretches the imagination to suggest that an impartial jury cannot
be successfully selected from this large pool of potential jurors."
And, the judge wrote, 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."
Moreover, some of the expert's results, the judge stressed, clashed
with Dzhokhar's "position" because they showed that respondents in
other jurisdictions were almost as likely to believe him guilty as
respondents in Massachusetts's Eastern Division. Also, while
"media coverage ha[d] continued" in the 18 months since the
bombings, "the 'decibel level of media attention,'" the judge said
(quoting Skilling), had "diminished somewhat." For the judge,
15On the presumption-of-prejudice issue, the factors Skilling
discussed included the size and characteristics of the community
where the crime happened; the nature of the pretrial publicity;
whether the passage of time had lessened media attention; and the
outcome of the case. See id. at 382-83. According to Skilling,
"[a] presumption of prejudice . . . attends only the extreme case."
Id. at 381.
- 27 -
Dzhokhar had "not proven that this [was] one of the rare and
extreme cases for which a presumption of prejudice is warranted."
"[A] thorough evaluation of potential jurors in the pool," the
judge continued, "will be made through questionnaires and voir
dire sufficient to identify prejudice during jury selection."
Second Venue Motion, First Mandamus Petition,
And Joint Proposed Jury Questionnaire
A few months later, in December 2014, Dzhokhar filed a
second venue-change motion, protesting that a huge portion of the
Eastern Division (again, the pool from which his jury would be
drawn) "has been victimized by the attack on the Marathon and the
related events" — which, combined with the continuing press
coverage, made it impossible to seat an impartial jury. Responding
to this motion, the government argued that "most of the articles"
Dzhokhar mentioned in this memo "have little or nothing to do with
this case, and the ones that do are largely factual and objective
in nature." Without waiting for the judge's ruling on the second
motion, Dzhokhar — also in December 2014 — petitioned this court
for mandamus relief. See Tsarnaev II, 780 F.3d at 17 (discussing
timeline).
With Dzhokhar's petition pending, however, the judge —
now in early January 2015, and after construing the motion as one
for reconsideration of the original venue-change denial — rejected
his second venue-change bid (just days after he filed his mandamus
- 28 -
petition). See id. Of note, the judge again expressed his
confidence that the voir-dire process would ensure jury
impartiality. "Should [that] process . . . prove otherwise," wrote
the judge, "the question of transfer can obviously be revisited."
Still in early January 2015, a divided panel of this court then
denied Dzhokhar's petition, concluding that he had "not made the
extraordinary showing required to justify mandamus relief." See
Tsarnaev I, 775 F.3d at 457.
While all this was going on, the parties — in December
2014 — submitted a joint proposed questionnaire for use in voir
dire. Some of their suggested questions touched on the potential
jurors' general thoughts about capital punishment. Others touched
on their exposure to pretrial publicity — questions like: "What
did you know about the facts of this case before coming to court
today (if anything)?"16
In a separate legal memo, the defense — citing Morgan v.
Illinois, 504 U.S. 719 (1992) — moved to add more specific
questions to identify those prospective jurors who could consider
imposing a life sentence not just abstractly, but in the particular
circumstances of the case before them. One proposed question, for
example, asked potential jurors to
From now on we refer to questions of this type as "content-
16
specific questions" (or some variant).
- 29 -
[s]tate whether you agree or disagree with the following
statements:
The death penalty is the ONLY appropriate punishment for
ANYONE who:
A. murders a child. □ Agree □ Disagree
B. deliberately murders a police officer. □ Agree
□ Disagree
C. deliberately commits murder as an act of terrorism.
□ Agree □ Disagree
Dzhokhar's team wanted these questions to "probe for a common form
of bias — the belief that the death penalty should always or
automatically be imposed for certain types of murder." The
government opposed. Relying on and quoting Morgan, the government
argued that the defense could ask "whether 'they will always vote
to impose death for conviction of a capital offense'" generally —
not "whether they will consider a sentence less than death" in
response to "a laundry list of potential crime elements and
aggravating factors." And according to the government, these
questions were nothing but impermissible "stakeout questions" —
i.e., questions aimed at getting potential jurors to "stake out a
position on the death penalty" before receiving instructions on
the law. But according to the defense, "these are the opposite"
of stakeout questions since "they seek only to probe whether
jurors' minds are open to considering all of the evidence relevant
to sentenc[ing]." The judge, however, decided not to include these
- 30 -
questions on the questionnaire, saying he would cover those topics
in voir dire.17
The judge also focused on the jointly-proposed question
asking what potential jurors knew "about the facts of this case
before coming to court today (if anything)." Conceding that this
question "might get very interesting answers," the judge worried
that it could "cause trouble because it will be so unfocused."
"But if you want to live with it," the judge said to defense
counsel, "this is a question that we'll probably be asking every
voir dire person."
Despite having had a hand in submitting the
questionnaire, the government now switched gears and argued that
the question could cause the parties to have to "follow[] up on
every fact asserted" — something that "would take forever."
Apparently persuaded by the government's argument, the judge —
after noting that the query could generate "unmanageable data" —
ultimately struck the question, explaining that prospective
jurors' "preconceptions" could instead be gauged by asking
whether, "[a]s a result of what you have seen or read in the news
media, . . . you [have] formed an opinion" about Dzhokhar's guilt
or the proper penalty, and if so, whether "you [can] set aside
Going forward, we will call these kinds of questions, as a
17
shorthand, "case-specific questions."
- 31 -
your opinion and base your decision . . . solely on the evidence
that will be presented to you in court." The defense objected,
saying that "in a case like this[,] where . . . you really have no
idea what the juror may have swirling around in [his or her] head,
it makes the juror the judge of [his or her] own impartiality."
"To a large extent that's true," the judge countered, but "the
other questions will help us" see if the potential jurors can set
aside any preconceived notions about the case — which is "the
biggest issue in voir dire, obviously."
Start of Jury Selection, Third Venue Motion,
And Second Mandamus Petition
Around the beginning of January 2015, 1,373 potential
jurors showed up at the John Joseph Moakley U.S. Courthouse for
the start of jury selection. The judge divided them into six
panels. As a preliminary matter, the judge twice told them that
Dzhokhar was "charged in connection with events that occurred near
the finish line of the Boston Marathon . . . that resulted in the
deaths of three people." And the judge had them fill out a 100-
question questionnaire covering their backgrounds, social-media
habits, exposure to pretrial publicity (the amount they had seen,
whether they had "formed an opinion" about guilt or punishment,
etc.), and thoughts on the death penalty.18 The questionnaire also
18 To give but one example, question 73 asked:
- 32 -
gave a "summary of the facts of this case," including that "two
bombs exploded . . . near the Boston Marathon finish line" and
that "[t]he explosions killed Krystle Marie Campbell (29), Lingzi
Lu (23), and Martin Richard (8), and injured hundreds of others."
"MIT Police Officer Sean Collier (26) was shot to death in his
police car," the questionnaire's summary added, and Dzhokhar "has
been charged with various crimes arising out of these events."
The questionnaire then 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."
The judge and the parties identified the potential
jurors by numbers. On appeal the parties focus on #138, #286, and
#355. So we do too.
Before having the prospective jurors fill out the
questionnaires, the judge gave some instructions. For instance,
he told them "not to discuss this case with your family, friends[,]
or any other person." They could "tell others that you may be a
How would you describe the amount of media coverage you
have seen about this case:
___ A lot (read many articles or watched television
accounts)
___ A moderate amount (just basic coverage in the news)
___ A little (basically just heard about it)
___ None (have not heard of case before today)
- 33 -
juror in the case," he also said, and could "discuss the schedule
with your family and employer." But he 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." And he told them not to "communicate about this
case or allow anyone to communicate about it with you by phone,
text, message, Skype, email, social media, such as Twitter or
Facebook."
As for the answers potential jurors gave on the
questionnaires, Dzhokhar — for reasons that will shortly become
clear — directs us to these replies by #138, #286, and #355.
Responding to a questionnaire inquiry about social-media
use, #138 wrote that he used Facebook "[e]very other day" at
"most." And he wrote "N/A" for a question asking whether he had
"commented on this case . . . in an online comment or post."
For her answer to the same question about social-media
use, #286 wrote that she looked at Facebook, Instagram, and Twitter
"daily" but did not "post daily." For her response to the question
about whether she had "commented on this case . . . in an online
comment or post," she wrote "don't believe I have." And she wrote
"N/A" to the question asking her to explain if she or a family
member had been "personally affected by the Boston Marathon
- 34 -
bombings or any of the crimes charged in this case (including being
asked to 'shelter in place' on April 19, 2013)."
On his jury questionnaire, #355 disclosed that he worked
as an "attorney." Answering a question about his death-penalty
views, he wrote, "Since it is legal, it should be the rarest of
punishments. It is much too prevalent in the country." On a scale
of 1 to 10, with 1 meaning "that the death penalty should never be
imposed" and 10 meaning that it should be imposed for all cases of
"intentional murder," he circled 2. He circled another answer
option that 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." He also wrote that "[k]illing
people, especially gov't sponsored killing, is generally wrong" —
"[w]hile I can imagine a scenario where facts and law call for it,
it is an exceedingly rare case." And responding to the question
"[i]f you found [Dzhokhar] guilty and you decided that the death
penalty was the appropriate punishment . . ., could you
conscientiously vote for the death penalty," he checked the box
for "I am not sure" — and then explained, "I cannot possibly
prejudge his guilt or potential punishment at this stage."
After both sides agreed to excuse many of the 1,373
potential jurors, the judge called back 256 for individual voir
dire — which lasted 21 days. And much happened during that time.
- 35 -
Dzhokhar continued to ask the judge to ask prospective jurors case-
specific questions (like the ones mentioned above) — but to no
avail. For instance, Dzhokhar proposed that the judge ask them if
they would automatically impose the death penalty if the defendant
"killed a child by deliberately using a weapon of mass
destruction"; "us[ed] a weapon of mass destruction to carry out an
intentional killing"; "deliberately committed an act of terrorism
that killed multiple victims"; or "intentionally murder[ed] a
police officer in the line of duty." They "know that this is about
a bombing," the judge ruled, "and they know that there are three
people who were killed in the bombing." Plus they have "my
preliminary instructions, . . . telling them what the offenses
were in general," the judge said. And, the judge stressed, "they
have those specifics already in their minds as they . . . answer
the question about the ability to meaningfully consider life
imprisonment." The judge thought, too, that "detailed questioning
about what the juror thinks he or she knows about the events" could
create the "wrong emphasis" and might inadvertently create bias
where none existed before.
Dzhokhar also asked the judge to ask content-specific
questions about pretrial publicity (like the ones mentioned
earlier) — for example, "What stands out in your mind from
everything you have heard, read[,] or seen about the Boston
- 36 -
Marathon bombing and the events that followed it?"19 But the judge
rejected that request, saying that "[w]e have detailed answers in
the questionnaire concerning . . . exposure to the media"; that he
saw no need to "repeat" questions "covered in the questionnaire";
and that he thought "digging for details . . . will not likely
yield reliable answers."
Near the end of January 2015, #138 underwent individual
voir dire. The judge reminded him that he had told "everyone to
avoid any discussion of the subject matter of the case with
anybody," though they "could talk about coming here, obviously,
but . . . also [had] to avoid any exposure to media articles about
the case." And the judge asked #138 if he had "been able to do
that." "Yeah," #138 replied, "I haven't looked at anything" or
"talked to anybody about it." The judge then turned to the subject
of #138's Facebook use (presumably as a follow-up to #138's
questionnaire answers). "What's the nature of your use of it,"
the judge asked, "[i]s it essentially personal, social-type
things?" And #138 said, "Yeah." Asked by the judge if he
"comment[ed] on public affairs or anything like that," #138
This was a paraphrase from a question in Skilling. See 561
19
U.S. at 371 (noting that the defendant there asked the district
court to ask prospective jurors "'what st[ood] out in [their]
minds' of 'all the things [they] ha[d] seen, heard or read about'"
the company the defendant had worked for (alterations in
original)).
- 37 -
answered, "Yeah, I see what my friends are doing and comment on
that." Which prompted the judge to ask if anyone was "commenting
about this trial" — to which #138 replied, "No."
The same day as #138's individual voir dire, Dzhokhar
filed a third venue-change motion. Highlighting statistics based
on questionnaire answers, he noted (among other arguments) that
out of a pool of 1,373 prospective jurors, 68% thought he was
"guilty, before hearing a single witness or examining a shred of
evidence at trial," and 69% "have a self-identified connection or
expressed allegiance to the people, places, and/or events at issue
in the case." "Stronger" evidence "of presumed prejudice in Boston
is difficult to imagine," he wrote. And as far as he was concerned,
"[g]iven the extent of prejudice and personal connections," the
judge could not count on voir dire to get "a jury that is both
actually impartial and preserves the appearance of impartiality."
Disagreeing with Dzhokhar, the government argued (among
other assertions) that Dzhokhar's own survey showed "that nearly
100% of respondents in Springfield, New York City, and Washington,
D.C. said they had been exposed to publicity about this case."
That makes sense, the government added, because "[t]he bombings
and their bloody aftermath" made national and international news.
And, the government emphasized, the percentage of people who
believe Dzhokhar is guilty is greater in those locales than in the
- 38 -
Eastern Division (according to the jury questionnaire responses):
"84% in Springfield, 92% in New York City, and 86% in Washington,
D.C." Also, according to the government, "of the 68% of potential
jurors in this case who have formed an opinion that [Dzhokhar] is
guilty, fully 60% said they could set aside that opinion and decide
the case solely on the [trial] evidence." So as the government
saw it, the questionnaires and voir dire could protect Dzhokhar's
right to an impartial jury.
Before the judge ruled on the motion, Dzhokhar filed a
second mandamus petition with us in early February 2015. But
individual voir dire still continued. During her turn — and
responding to questions from the judge (who was following up on
her questionnaire answers) — #286 disclosed that she used Facebook,
Instagram, and Twitter "just [for] social" purposes. "I watch
TV," she explained, "and kind of tweet while I'm watching TV with
other people that are watching the same programs that I'm
watching." And she implied that she had not been "locked down"
with her family — saying that while at work on April 19, she
"jok[ed]" with her boss that she had to go home. "I live in
Boston," she said, "and Boston was on lockdown. I'm, like, I have
to go home. We're on lockdown." Defense counsel then asked her
if any family or friends had talked with her "about the Marathon
bombing[s] . . . [o]r any of the events of that week." "[M]aybe
- 39 -
in general or something but not really," she said. Dzhokhar's
lawyer then asked, "Can you tell us what stands out in your mind
that you read" about the case? But the government objected. And
the judge sustained the objection.
A day later, with Dzhokhar's mandamus petition still
pending, the judge denied Dzhokhar's third venue-change motion —
"for reasons both old and new." We focus here on the judge's new
reason. Conceding both that "[c]hecking a box" on a questionnaire
"may result in answers that appear more clear and unambiguous than
the juror may have intended or than is actually true," and that
handwritten "answers" frequently "can . . . be unclear, inapposite,
or incomplete," the judge concluded that the voir dire underway
was "successfully identifying potential jurors who are capable of
serving" fairly and impartially.
A week after the judge's ruling, #355 was individually
voir dired. #355 said that he did not think that his work as a
criminal lawyer would affect his impartiality. "[I]f asked to
vote on" the death penalty," he explained, "I would probably vote
against it because of my belief that it is overused." But he later
added that "[i]f, after hearing the [judge'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 . . . I could vote to impose the death
- 40 -
penalty." Asked by the government whether he could "imagine any
case that [he] would think is appropriate for the death penalty,"
#355 said, "I think Slobodan Milosevic was close, if not a prime
example."20 Asked by the defense whether he could "actually vote
to impose" the death penalty in an appropriate case, #355 stated,
"I think I could." "Are you pretty confident of that answer?" the
defense asked. "Yes," #355 replied.
The government moved to strike #355 "for his bias" as a
criminal defense lawyer and "for his death penalty answers." To
the government's way of thinking, #355 was "substantially
impaired" because "the only time . . . he could think that he could
impose the death penalty would be in a case of genocide." The
defense opposed the motion, pointing out that #355 said he could
"make a decision" to impose the death penalty "in a given set of
facts." The judge granted the motion, however. "I would not
exclude [#355] because of his . . . criminal defense work," the
judge noted. But relying on his "sense of him," the judge
concluded that #355 was not adequately "open to the possibility of
the death penalty" — especially given "the genocide issue," which
made #355's "zone of possibility . . . so narrow" that he was
A former president of Serbia, Milosevic led a campaign of
20
genocidal aggression during the Balkan wars of the 1990s. See
Slobodan Milošević, Wikipedia (last visited July 23, 2020),
https://en.wikipedia.org/wiki/Slobodan_Milo%C5%A1evi%C4%87.
- 41 -
"substantially impaired." All in all, the judge was not convinced
that #355 "was going to be truly open in the way that would be
necessary."
In the last week of February 2015, the judge
provisionally qualified 75 prospective jurors — a group that
included #138 and #286. The judge ended up excusing 5 of the 75
for hardship. And it was from this group of 70 that the parties
would choose a jury.
That same week, a divided panel of this court denied
Dzhokhar's second mandamus petition because he had not shown a
clear and indisputable right to a venue change (which is what he
had to show to get mandamus relief). See Tsarnaev II, 780 F.3d at
15, 19-20. To give one of the panel majority's reasons: Although
Dzhokhar argued that we had to "presume prejudice for any jury
drawn from the Eastern Division of Massachusetts," the panel
majority found that "his own statistics reveal that hundreds of
members of the [jury pool] have not formed an opinion that he is
guilty" — and "[t]he voir dire responses have confirmed this."
Id. at 21. The panel majority also believed that a rigorous and
thorough voir dire would secure an impartial jury. See id. at 21-
24.
- 42 -
 Motions to Excuse #138 and #286,
Fourth Venue Motion, and Peremptory Strikes
On the same day Tsarnaev II came down, Dzhokhar filed
motions to strike #138 and #286 for cause from the provisionally
qualified jury pool — motions premised on alleged newly discovered
information.21
In his motion against #138, Dzhokhar claimed that he had
just learned that #138 "was dishonest . . . about comments on
Facebook" and had defied the judge's "instructions" within mere
"hours of receiving them." For support, he pointed to the
following:
 On the day #138 went to court to complete his juror
questionnaire, he posted on Facebook, "Jury duty....this
should be interesting...couple thousand people already
here."22
 Two of his Facebook "friends" responded. One said, "How'd
you get stuck going to Boston?" The other said, "Did you get
picked for the marathon bomber trial!!!??? That's awesome!"
Dzhokhar says in his brief to us that "the defense exercised
21
diligence in investigating the 1,373" potential jurors,
"scour[ing]" their "social media profiles" as best they could,
given the other "extraordinary demands" on his lawyers' time —
"including the ongoing jury selection process, discovery review,
litigation of pre-trial motions, and trial preparation."
22In our quotations from the posts, we use the spelling,
grammar, and punctuation that appear in the original messages.
- 43 -
#138 replied, "Ya awesome alright haha there's like 1000s of
people."
 Over the next few hours, people left more comments, saying
things like, "If you're really on jury duty, this guys got no
shot in hell" and "They're gonna take one look at you and
tell you to beat it."
 Despite hearing the judge's preliminary warnings — "not to
discuss anything else, or allow anyone else to discuss with
you anything else until you have been excused," not to
"communicate about this case or allow anyone to communicate
about it with you by phone, text message, Skype, email, social
media, such as Twitter or Facebook," etc. — #138 returned to
the Facebook thread later that day and posted, "Shud be crazy
[Dzhokhar] 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." His Facebook friends
responded, "Whoa!!"; "Since when does [#138] care about
rules?"; and "Play the part so u get on the jury then send
him to jail where he will be taken care of." #138 replied,
"When the Feds are involved id rather not take my
chances...them locals tho...pishhh ain't no thaang." "Yea
super careful," a Facebook friend wrote back, "bc should you
- 44 -
get picked any mention of anything can get you booted or call
for mistrial."
Dzhokhar argued that these actions by #138 showed "a willingness
to flout the rules, a lack of maturity, and a failure to appreciate
the seriousness of these procedures." So he asked the judge to
"excuse[]" #138 "for cause."
Dzhokhar's motion against #286 claimed that "[a]fter her
voir dire questioning," he discovered information about #286's
social media "postings at the time of the Boston Marathon Bombings
and their aftermath" that undermines "her juror questionnaire"
answers. He emphasized the following:
 On the day of the bombings, #286 tweeted, "Need something to
make you smile and warm your heart after today's tragedy at
#BostonMarathon, take a look at #BostonHelp." About Martin
Richard, she tweeted, "Little 8yr old boy that was killed at
marathon, was a Savin Hill little leaguer :-( RIP little man
#Dorchester #bostonmarathon." #286 was from Dorchester too
(Dorchester is a neighborhood in Boston).
 During the shelter-in-place situation, #286 tweeted that she
was "locked down" with her family, adding, "it's worse having
to work knowing ur family is locked down at home!! Finally
home locked down w/them #boston."
- 45 -
 After Dzhokhar's capture, #286 retweeted expressions of
celebration — including a tweet that said, "Told y'all.
Welcome To Boston The City Of CHAMPS! We get our shit DONE!
#BostonStrong." Another of her retweets said,
"Congratulations to all of the law enforcement professionals
who worked so hard and went through hell to bring in that
piece of garbage." And another of her retweets read, "Monday
started in celebration and ended in tragedy. Today began in
tragedy and ended in celebration. You can't keep us down.
#BostonStrong."
 Over the following year, #286 retweeted additional posts
about the victims — including retweets of a photo of Martin
Richard's sister singing the national anthem at Fenway Park
(home to the Boston Red Sox), a photo of Martin's older
brother running the Boston Athletic Association Youth Relay
Race in 2014, and photos of officers Sean Collier and Richard
Donohue at their police academy graduation (the caption over
the photos read, "Please keep both in your prayers").
Dzhokhar contended that #286's tweets and retweets showed "a
community allegiance that is certain to color her view of the
case," making her claim that she could fairly and impartially
"consider life versus the death penalty at trial exceedingly
- 46 -
suspect." So he asked the judge to "excuse[]" #286 "for cause" or
"recall[]" her "for follow-up questioning."
In a memo opposing Dzhokhar's motions, the government
called his challenges to #138 and #286 untimely because he did not
object when the judge provisionally qualified them. And that
untimeliness, said the government, could not be excused based on
newly discovered evidence because the motions relied on "social
media postings . . . that predated voir dire, often by years." On
the merits, the government asserted that #138 did not disobey the
judge's instructions by "simply reporting that [Dzhokhar] was ten
feet in front of him at one point and had a team of five or six
lawyers" (though the government did not address how #138 told the
judge during individual voir dire that his Facebook friends were
not "commenting" on the "trial"). And as for #286, labeling her
tweets and retweets "innocuous," the government argued that she
"may well not have considered 'tweeting' (or especially
'retweeting') a photograph to be the same as 'comment[ing] on this
case in a letter to the editor, in an online comment or post, or
on a radio talk show'" (the government made no mention of her
"piece of garbage" retweet or her being "locked down" with her
family, however).
- 47 -
The judge orally denied Dzhokhar's motions at a
conference the first week of March 2015. "I reviewed the jury
questionnaires," the judge said, and the voir dire
transcripts. First of all, I agree with the government
that the objections are late and it is — we have a
procedure. 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.
Continuing on, the judge added that he found Dzhokhar's objections
"largely speculative." "There are various possible explanations,"
he said,
and none of them is . . . serious enough to warrant
changing our provisional qualification, and in
particular, none of the issues that were raised seem
. . . 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.
Around this time — early March 2015 — the defense filed
a fourth venue-change motion — essentially arguing that of the 75
provisionally qualified jurors, 42 "self-identified . . . some
connection to the events, people, and/or places at issue in the
case"; 23 "stated . . . that they had formed the opinion that
[Dzhokhar] 'is' guilty, with . . . 1 . . . of those . . . 23
stating . . . that he would be unable to set aside that belief";
and that 48 "either believe that [Dzhokhar] is guilty, or have a
- 48 -
self-identified connection, or both." The government opposed,
contesting (among other things) the defense's statistical
methodology.
While that motion was pending, the defense used all 20
of its peremptory strikes, see Fed. R. Crim. P. 24(b)(1), but did
not strike #138 or #286 (the judge denied the defense's request
for 10 more peremptories).23 The government used all of its
peremptory challenges too. Both #138 and #286 got on the jury
(#286 ultimately served as the jury foreperson). Of the 12 jurors
seated by the judge, 9 got there without disclosing the specific
content of the media coverage they had seen24 — recall how the
judge rejected the defense's efforts to learn not just whether
prospective jurors had seen media coverage of this case but what
specifically they had seen. And of those 9, 4 believed based on
pretrial publicity that Dzhokhar had participated in the bombings.
23 A peremptory challenge is defined generally as "[o]ne of a
party's limited number of challenges that do not need to be
supported by a reason unless the opposing party makes a prima facie
showing that the challenge was used to discriminate on the basis
of race, ethnicity, or sex." See Challenge, Black's Law Dictionary
(11th ed. 2019) (second definition).
24 The defense asked one of the seated jurors what "st[ood]
out in [her] mind, if anything, about this case from anything
you've heard, seen." She replied, "The only thing that I
definitely can remember from that time is probably after the fact
when they showed the finish line." Another seated juror
volunteered that she had watched "the shootout in Watertown" on
TV. And another seated juror volunteered that she had seen "video
evidence" and Dzhokhar's "being in the boat."
- 49 -
But all 12 did say that they could adjudicate on the evidence as
opposed to personal biases or preconceived notions.
On the first day of trial — also in early March 2015 —
the judge orally denied the defense's pending venue-change
request, without an on-the-spot explanation.
Basic Appellate Arguments
Dzhokhar presents a raft of venue- and juror-selection
claims on appeal.
Starting with venue, Dzhokhar contends that his trial in
the district's Eastern Division violated his constitutional right
to an impartial jury for either of two reasons: "The community's
exposure to the bombings and ensuing pre-trial publicity . . .
warranted a presumption of prejudice," or "the jurors'
questionnaire and voir dire responses establish[ed] actual
prejudice." Hoping to counter that claim, the government argues
that "[p]rejudice should not be presumed in a venue with a
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 view that [Dzhokhar]
was guilty." And the government also insists that the record
- 50 -
nowhere shows that the pretrial publicity "actually biased" the
potential or seated jurors.
From there, Dzhokhar argues that both #138 and #286 lied
under oath during voir dire about their social-media postings.
And, he says, by not striking them for cause, the judge robbed him
of his constitutional rights to due process, an impartial jury,
and a reliable sentencing decision. The government responds that
even if #138 and #286 "had fully disclosed everything" that
Dzhokhar says "they should have, they would not have been stricken
for cause." Which is why the government thinks that Dzhokhar
"cannot show entitlement to a new trial or an evidentiary hearing."
Dzhokhar then argues that the judge stacked the deck
against him by excusing #355 based on the mistaken belief that
#355's death-penalty views would have "substantially impaired" him
in his ability to perform as a juror. Calling him "[a]n educated
professional who had devoted" considerable thought to the
question, Dzhokhar notes that #355 said that he could vote for the
death penalty in the right case — despite his personal views on
capital punishment. Conversely, the government contends that #355
"gave hesitant and carefully hedged answers about the death
penalty," plus "was unable to think of any category of crimes
beyond genocide where he believed the death penalty would be
appropriate."
- 51 -
Penultimately (at least for this part of this opinion),
Dzhokhar faults the judge for "taking a crabbed view of Morgan."
The nub of his complaint is, to quote his brief, that a faithful
application of Morgan required the judge to ask prospective jurors
"whether they could take into account mitigating evidence and
consider a sentence of life imprisonment not just in the abstract,
but in light of specific allegations in his case." Unpersuaded,
the government sees no legal error under Morgan, because the
suggested questions "were impermissible 'stakeout' questions" that
basically asked potential jurors "to prejudge the appropriateness
of the death penalty in this case without consideration of the
[judge's] instructions or mitigating factors." And, the
government adds, even if Morgan required the judge to tell
prospective jurors about "certain case-specific facts," Dzhokhar's
suggested questions were unnecessary because they already knew
about the case's key facts from the judge's preliminary
instructions and the juror questionnaire — "and they could have
considered those facts when answering questions about their views
on the death penalty."
Relying on Patriarca and its offspring, Dzhokhar lastly
argues here that the judge erred in denying his request to ask
potential jurors content-specific questions about "what they had
seen, read, or heard about his case." The pretrial publicity, he
- 52 -
writes (quoting Patriarca), created a "'significant possibility
that jurors [had] been exposed to potentially prejudicial
material'" and so "trigger[ed]" a "duty to inquire." Which,
according to him, means that the judge had to ask "not just whether
prospective jurors had seen media coverage of this case, but what,
specifically, they had seen." And by not doing so, the judge (in
Dzhokhar's words) produced "a jury biased by prejudicial
publicity." Trying to meet this argument, the government — citing
Mu'Min v. Virginia, 500 U.S. 415 (1991) — principally contends
that Supreme Court precedent "reject[s] the claim that such an
inquiry is required."
Analysis
We start, as the parties do, with the judge's decision
not to change venue — a decision that receives abuse-of-discretion
review. See United States v. Casellas-Toro, 807 F.3d 380, 385
(1st Cir. 2015). Anyone alleging an abuse of discretion faces an
uphill climb. See generally United States v. Rivera-Carrasquillo,
933 F.3d 33, 44 (1st Cir. 2019) (explaining that a judge abuses
his discretion "if no reasonable person could agree with the
ruling"), cert. denied, No. 19-7879 (Apr. 20, 2020). And that is
certainly true when a party asks us to critique a denial of a
motion grounded on alleged jury partiality, because — as no less
an authority than the Supreme Court has said — "[i]n reviewing
- 53 -
claims of this type, the deference due to district courts is at
its pinnacle." Skilling, 561 U.S. at 396 (emphasis added).
Two of us find serious points against Dzhokhar's venue-
change arguments.
First, the polling data shows that many in Boston were
undecided about whether Dzhokhar should receive death — even after
all the publicity. The defense expert's own survey data revealed
that only 36.7% of people in Boston favored the death penalty for
Dzhokhar before the trial, leaving 63.3% undecided or leaning
against death. Since the Eastern Division has a population of
about five million, that leaves several million people (even minus
children, etc.) open to a life sentence despite all the publicity.
The data from the voir-dire questionnaire is even more telling,
showing that only 23% of the prospective-juror panel had formed an
opinion that Dzhokhar should die — and just 16% held that view and
said they could not be convinced otherwise. This means that of
the 1,373 potential jurors, over 1,000 of them had not
predetermined that death was the right sentence.
Second, the same polling data shows public awareness and
attitudes were not materially different in, for example,
Springfield or New York City. In Springfield, 51.7% said Dzhokhar
was "definitely guilty" and 32.2% said he was "probably guilty"
based on the pretrial publicity, compared with 47.6% and 44% in
- 54 -
Manhattan, and 57.8% and 34.5% in Boston. The numbers regarding
penalty are also similar — in fact fewer respondents preferred
life without the possibility of parole in Springfield (45.4%) than
in Boston (51.2%).
Also and importantly, the polling inquiry does not ask
respondents to judge for themselves whether they are biased. Nor
does it fail to overlook subliminal biases. Instead, the pollster
asked whether Dzhokhar should get the death penalty. The answer
to that question likely reflected whatever actual bias might have
been operating, knowingly or otherwise. So (extrapolating from
the relevant figures) the fact that so many hundreds of thousands
in the pool of potential jurors were undecided, and that the
percentage of those persons was not materially less than the
percentage for New York City, does support the judge's venue
decision in a powerful way.
We note too that this is not a case where almost
everybody locally knows something and very few elsewhere know of
it. Plus the data seemingly contradicts any claim that the Boston
Strong movement and the sheltering in place account for undue
prejudice — were it otherwise, the difference in attitudes would
probably be much greater in, for example, New York City.
Third, most of the publicity was true — something we now
know from Dzhokhar's guilt admission in his lawyer's guilt-phase
- 55 -
opening and closing statements (notably, Dzhokhar does not say he
would have raised an innocence defense in another venue). See
Murphy v. Florida, 421 U.S. 794, 802 (1975) (noting the truth of
the pretrial publicity); see also Skilling, 561 U.S. at 382-83;
Casellas-Toro, 807 F.3d at 387. So after the first day of trial,
a juror from Boston and one from California would know essentially
the same things about the case — even though the California juror
would have seen less of the publicity. Contrast that with Rideau
v. Louisiana, 373 U.S. 723 (1963), where an inadmissible taped
confession by a guilt-contesting defendant was televised only on
the local news. As for the untrue pieces of publicity, they seem
trivial given the true and relevant information — for example, the
report that Dzhokhar's boat message said "fuck America" got quickly
disproved once jurors saw the actual message; and at any rate, the
words "fuck America" added very little if anything to what he
actually wrote.
Fourth and finally, comparing Dzhokhar's case to other
venue-change cases — specifically Skilling and Casellas-Toro —
makes it hard to say the judge abused his discretion. Starting
with the size and diversity of the metropolitan area (the first
Skilling factor), Boston is very large and diverse — much closer
to Houston in Skilling, 561 U.S. at 382 (a "large, diverse pool"
of 4.5 million eligible jurors in the area made the "suggestion
- 56 -
that 12 impartial individuals could not be empaneled . . . hard to
sustain"), than to the Indiana community in Irvin v. Dowd, 366
U.S. 717, 719 (1961) (about 30,000 people), or to Puerto Rico in
Casellas-Toro, 807 F.3d at 386 ("a compact, insular community" of
3 million people that "is highly susceptible to the impact of local
media" (quotation marks omitted)). The nature of the publicity
(the second Skilling factor) was, as discussed, largely factual
and the untrue stuff was no more inflammatory than the evidence
presented at trial. As to passage of time (the third Skilling
factor), two years had elapsed between the crime and the trial —
which is closer in magnitude to the four years in Skilling (a point
cutting against a venue change) than the two months in
Casellas-Toro (a point favoring a venue change). And the verdict
shows no affirmative signs of bias (the fourth Skilling factor),
since the jury recommended Dzhokhar die for six of seventeen death-
eligible counts, similar to Skilling's acquittal on certain counts
and contrasted with Casellas-Toro's guilty verdict on counts
lacking sufficient evidence. Dzhokhar asks us to give no weight
to the jury's decision not to recommend death on most of the death-
eligible counts. He reasons that the jury's decision-making can
be explained by the fact that the government can only kill him
once. But the jurors had seventeen death counts to consider. And
they decided on death for six of those. That selectivity cannot
- 57 -
be explained (as he presumes) by his the-government-can-only-
execute-me-once theory. For if he were right, the jury would have
returned a death verdict on just one count. To pick six and not
one or seventeen, the jurors must have had some other rationale in
mind that required them to draw distinctions between facts that
they thought warranted a death verdict and those that they thought
did not. And that sort of nuance favors a view of the jury as
intent on following the law and the facts.
Dzhokhar's chief argument — that the nature of the crime
(terrorism) might be viewed as an attack on the Boston community
specifically — does not appear in the framework of these cases.
But it seems just as likely that a juror in, say, New York City
would view the crime as an attack on all of America (as he himself
did) — thus negating any advantage in changing venues.
So if pressed to decide the venue question now, two of
us would likely find the judge abused no discretion in finding
venue proper in Boston in 2015. But we need not make such a
decision now. That is because, as explained next, we must remand
the penalty-phase portion of this trial for a retrial — regardless
of how we rule on venue. And it also is because, given the sizable
passage of time, the venue issue should look quite different the
second time around, likely in 2021. See Skilling, 561 U.S. at
383.
- 58 -
Now for our remand-for-a-penalty-phase-retrial
explanation. Even assuming (favorably to the government) that the
judge did not reversibly err on the venue question, he still had
to oversee a voir-dire process capable of winnowing out partial
jurors through careful questioning — indeed, in denying Dzhokhar
a venue change, the judge premised his analysis in part on a pledge
to run a "voir dire sufficient to identify prejudice."25 But
performance fell short of promise, providing (as Dzhokhar's
counsel said at oral argument) a sufficient ground to vacate his
death sentences — even on abuse-of-discretion review.26 See United
States v. Casanova, 886 F.3d 55, 60 (1st Cir. 2018). See generally
United States v. Connolly, 504 F.3d 206, 211-12 (1st Cir. 2007)
(noting that "an erroneous view of the law" is always an abuse of
discretion). With the venue assumption in place, we lay out our
reasoning.
Patriarca is the key. A pretrial-publicity case,
Patriarca involved an organized-crime prosecution where the press
called one of the defendants "'Boss' of the New England 'Cosa
25 For some cases making a venue-was-proper assumption and
then deciding the appeal on another basis, see In re Horseshoe
Entm't, 337 F.3d 429, 435 (5th Cir. 2003); Emrit v. Holland &
Knight, LLP, 693 F. App'x 186, 186-187 (4th Cir. 2017) (per
curiam).
26By the way, Dzhokhar's sentencing arguments target only the
death sentences.
- 59 -
Nostra'" and reported how a lawyer for a government witness nearly
died in a car-bomb incident. See 402 F.2d at 315-16. Convinced
that the news accounts might make prospective jurors think
(wrongly, apparently) that the defendants had something to do with
the bombing, the defense teams moved to change the trial's venue
— and lost. Id. at 316-17.
The defendants appealed, relevantly arguing that the
judge "erred in denying" the change-of-venue motion "because of
prejudicial publicity." Id. at 315. We noted "that the amount of
coverage diminished sharply after the week following the bombing."
Id. at 317. We also noted that the defense had the chance "to
mitigate any possible effect of pretrial publicity — [namely,] on
the voir dire." Id. Counsel for one of the defendants had asked
the judge to "ask a question of the jury in connection with this
case, in the light of all the publicity." Id. at 317-18. And the
judge said that he would ask the jurors "if there is any member
. . . who feels that he would not be able to give the defendants
a fair and impartial jury." Id. at 318. Counsel said "thank you."
Id. The judge put the question to the jury, got "[n]o response"
from the members, and so saw no reason not to proceed to trial.
See id. Given this set of circumstances, we found no sign of
abused discretion in the judge's venue decision. Id.
- 60 -
 But crucially, we felt "bound" to address "sua sponte"
— i.e., without prompting from either side — the scope of voir
dire judges should conduct "[i]n cases where there is, in the
opinion of the [judge], a significant possibility that jurors have
been exposed to potentially prejudicial material." Id.
Specifically, we directed that
on request of counsel, . . . the [judge] should proceed
to examine each prospective juror apart from other
jurors and prospective jurors, with a view to eliciting
the kind and degree of his exposure to the case or the
parties, the effect of such exposure on his present state
of mind, and the extent to which such state of mind is
immutable or subject to change from evidence.
Id. (double emphasis added).
And in driving this directive home, we explicitly
endorsed section 3.4 of the American Bar Association's then-recent
Standards Relating to Fair Trial and Free Press. See id.
(emphasizing that "we are in accord with the suggestions of section
3.4").27 Section 3.4, in turn, said that in cases involving
prejudicial pretrial publicity, voir-dire "questioning shall be
conducted for the purpose of determining what the prospective juror
has read and heard about the case." See Am. Bar Ass'n, Standards
The American Bar Association is familiarly known by its
27
abbreviation "ABA."
- 61 -
Relating to Fair Trial and Free Press § 3.4(a), at 130 (Tentative
Draft Dec. 1966) (emphasis added).28
The rationale for the Patriarca standard is obvious.
Decisions about prospective jurors' impartiality are for the
judge, not for the potential jurors themselves. See, e.g., United
States v. Rhodes, 556 F.2d 599, 601 (1st Cir. 1977). And that is
because prospective jurors "may have an interest in concealing
[their] own bias" or "may be unaware of it." Smith v. Phillips,
455 U.S. 209, 221-22 (1982) (O'Connor, J., concurring); see also
Sampson v. United States, 724 F.3d 150, 164 (1st Cir. 2013)
("Sampson II") (emphasizing that "a person who harbors a bias may
not appreciate it and, in any event, may be reluctant to admit her
lack of objectivity"). So asking them only "whether they had read
anything that might influence their opinion" does not suffice, for
that question "in no way elicit[s] what, if anything," they have
"learned, but let[s] [them] decide for themselves the ultimate
28 This standard has endured for 50-plus years. See Am. Bar
Ass'n, Fair Trial and Public Discourse, Standard 8-5.4 (2016)
(stating that "[i]f it is likely that any prospective jurors have
been exposed to prejudicial publicity, they should be individually
questioned to determine what they have read and heard about the
case and how any exposure has affected their attitudes toward the
trial"), available at
https://www.americanbar.org/groups/criminal_justice/standards/cr
imjust_standards_fairtrial_blk/ (last visited July 23, 2020).
- 62 -
question whether what they [have] learned had prejudiced them."
Rhodes, 556 F.2d at 601.
With these principles in mind, we have held that a judge
in a high-profile case "fully complied with" Patriarca by asking
potential jurors if they "had read or heard anything about the
case in the newspapers, on television[,] or radio" — and if so, by
"prob[ing] further as to the extent of such knowledge." See United
States v. Medina, 761 F.2d 12, 20 (1st Cir. 1985) (emphasis added).
We have also found "no inconsistency" with Patriarca when a judge
in another high-profile case "asked the prospective jurors,
collectively," if they "had heard 'anything at all' about the case"
— and then asked those who had "to recount" at side bar "all that
[they] knew about the case." See Vest, 842 F.2d at 1332 (emphasis
added). And we have held that a judge in yet another high-profile
case satisfied Patriarca when he asked potential jurors if they
"had seen or read anything about the case" — and then asked those
who had about "the circumstances under which [they] had been
exposed to publicity." See United States v. Orlando-Figueroa, 229
F.3d 33, 43 (1st Cir. 2000) (emphasis added).
Despite his best intentions, Dzhokhar's judge did not
meet the Patriarca standard, however — even though the case met
Patriarca's conditions for requiring extensive inquiry. Dzhokhar,
do not forget, "request[ed]" voir dire on the contents of the
- 63 -
material that the potential jurors had seen. See Patriarca, 402
F.2d at 318. And there was "a significant possibility" that the
prospective jurors had been "exposed to potentially prejudicial
material." See id. Again, the pervasive coverage of the bombings
and the aftermath featured bone-chilling still shots and videos of
the Tsarnaev brothers carrying backpacks at the Marathon, of the
maimed and the dead near the Marathon's finish line, and of a
bloodied Dzhokhar arrested in Watertown (to name just a few).
Also, while the media (social, cable, internet, etc.) gave largely
factual accounts, see Tsarnaev II, 780 F.3d at 21-22, some of the
coverage included inaccurate or inadmissible information — like
the details of his un-Miranda-ized hospital interview and the
opinions of public officials that he should die.
With Patriarca's prerequisites satisfied, the judge had
to ascertain not just the "degree" but the "kind" of "exposure to
the case or the parties" that the prospective jurors had
experienced, see 402 F.2d at 318 — that is, "what [they] ha[d]
read and heard about the case," see Am. Bar Ass'n, Standards
Relating to Fair Trial and Free Press § 3.4(a), at 130 (cited in
Patriarca, 402 F.2d at 318). But as to 9 of the 12 seated jurors,
the judge fell short on this front. To repeat what we wrote
earlier, the judge qualified jurors who had already formed an
opinion that Dzhokhar was guilty — and he did so in large part
- 64 -
because they answered "yes" to the question whether they could
decide this high-profile case based on the evidence. The defense
warned the judge that asking only general questions like that would
wrongly "make[]" the potential jurors "judge[s] of their own
impartiality" — the exact error that the Patriarca line of cases
seeks to prevent. But the judge dismissed the defense's objection,
saying that "[t]o a large extent" jurors must perform that
function. Yet by not having the jurors identify what it was they
already thought they knew about the case, the judge made it too
difficult for himself and the parties to determine both the nature
of any taint (e.g., whether the juror knew something prejudicial
not to be conceded at trial) and the possible remedies for the
taint. This was an error of law and so an abuse of discretion.
See Connolly, 504 F.3d at 211-12; see also Mangual v. Rotger-
Sabat, 317 F.3d 45, 61 (1st Cir. 2003) (echoing the truism that
"[i]t is an abuse of discretion for the district court to apply an
erroneous standard of law").
The government offers a number of arguments to the
contrary. But none of them changes the result.
The government first argues that the Patriarca language
we bank on is "dicta."29 True, the pertinent appellate claim there
29"Dictum" — the singular of "dicta" — "is a term that judges
and lawyers use to describe comments relevant, but not essential,
to the disposition of legal questions pending before a court."
- 65 -
concerned a venue-change denial. See 402 F.2d at 315. But after
rejecting that claim, we "fe[lt] bound" to address the sufficiency
of the voir dire — which we did by stating that in high-profile
cases, district judges "should proceed to examine each prospective
juror . . . with a view to eliciting the kind and degree of his
exposure to the case." Id. at 318 (emphasis added). And as a
later case confirms, Patriarca intended to and does state "the
standards of this circuit." See Medina, 761 F.2d at 20 (emphasis
added). So the government's dicta argument does not work.
Nor does the government's suggestion that the voir dire
here actually "elicit[ed] the kind and degree" of the potential
jurors' exposure to the case. In making this claim, the government
(paraphrasing the questionnaire) notes that prospective jurors had
to disclose "what newspapers, radio programs, and television
programs [they] viewed and with what frequency, as well as how
much media coverage [they] had seen about the case." And that
suffices, the government says, because we have not read Patriarca
to require content-specific questioning. But this is wrong for
several reasons. For one thing, learning that prospective jurors
read, say, the Boston Globe daily and have seen a lot of coverage
See Doughty v. Underwriters at Lloyd's, London, 6 F.3d 856, 861
(1st Cir. 1993), abrogated on other grounds by Quackenbush v.
Allstate Ins. Co., 517 U.S. 706 (1996).
- 66 -
about the case is not the same as learning that they read Globe
articles quoting civic leaders saying Dzhokhar should die —
statements that could not constitutionally be admitted into
evidence. See Bosse v. Oklahoma, 137 S. Ct. 1, 2 (2016) (per
curiam). For another thing, the government's rejoinder rests on
a misreading of Patriarca — an opinion that does require inquiry
into what information potential jurors have been exposed to.
Again, Patriarca endorsed the ABA's standards calling for content-
specific questioning "for the purpose of determining what the
prospective juror has read and heard about the case." Also and
critically, post-Patriarca caselaw clarified that the defect
Patriarca aimed to cure was delegating to prospective jurors the
job of evaluating their impartiality — a defect that content-
specific questioning can fix. See Vest, 842 F.2d at 1332.
Consider Vest. Following the correct approach, the district judge
there did not ask potential jurors "to decide for themselves the
'ultimate question' of impartiality" — instead, "once a juror
admitted to any knowledge of the case," the judge "individually
questioned" him or her "as to the facts and extent of such
knowledge." Id. And contrary to the government's
characterization, Vest concerned not just individual versus group
voir dire, but also content-specific versus noncontent-specific
questioning.
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Quoting Mu'Min, the government then makes its biggest
argument — namely, that this post-Patriarca opinion by the Supreme
Court (emphasis ours) "rejected the argument that the Constitution
requires [judges] to question prospective jurors 'about the
specific contents of the news reports to which they had been
exposed.'" But there is a major flaw in the government's theory.
Mu'min arose on direct review of a state-court criminal conviction
— which meant the Supreme Court's "authority" was "limited to
enforcing the commands of the [federal] Constitution." 500 U.S.
at 422 (emphasis added). Dzhokhar, contrastingly, was "tried in
federal court[]" — and thus was "subject to" the "supervisory
power" of the federal appellate courts. See id. (emphasis added).
And this distinction makes all the difference, because "[w]e enjoy
more latitude in setting standards for voir dire in federal courts
under our supervisory power than we have in interpreting" the
federal Constitution "with respect to voir dire in state courts."
See id. at 424 (italics omitted); see also Kater v. Maloney, 459
F.3d 56, 66 n.9 (1st Cir. 2006) (noting that Mu'Min "carefully
distinguished between constitutional requirements which states
must meet and the exercise of its broader supervisory authority
over cases tried in federal courts").
Patriarca did not say that the endorsed standard sprang
from the Constitution. And neither did Patriarca explicitly say
- 68 -
that it emanated from our supervisory powers — yet we see plenty
of signs that it did indeed emanate from that source. For
starters, neither side in Patriarca made voir dire an issue. And
it is highly unlikely that we would have engaged in a
constitutional excursion without prompting by the parties. Also
and relatedly, given the well-entrenched doctrine of
constitutional avoidance, it is equally unlikely that we would
have gone out of our way to issue a constitutional decision. See
Am. Foreign Serv. Ass'n v. Garfinkel, 490 U.S. 153, 161 (1989)
(per curiam) (explaining that the doctrine counsels against
issuing "unnecessary constitutional rulings"). Plus as we have
noted, Patriarca relied on the ABA standards. And those standards
are meant as templates for courts, not as constitutional
pronouncements. Cf. Br. of Am. Bar Ass'n as Amicus Curiae at 2,
Martinez v. Ryan, 566 U.S. 1 (2011) (No. 10-1001), 2011 WL 3584754,
at *2 (explaining that the ABA Standards for Criminal Justice
"represent a collection of 'best practices' based on the consensus
views of a broad array of professionals involved in the criminal
justice system"). Mu'Min itself recognized that other federal
appellate courts have mandated content-specific questioning in the
exercise of their discretionary supervisory powers, not as a matter
- 69 -
of constitutional law. See 500 U.S. at 427.30 One of those courts
— the Fifth Circuit — later specifically said that "Mu'Min does
The Mu'Min majority cited United States v. Davis, 583 F.2d
30
190 (5th Cir. 1978); United States v. Dellinger, 472 F.2d 340 (7th
Cir. 1972); and Silverthorne v. United States, 400 F.2d 627 (9th
Cir. 1968). See Mu'Min, 500 U.S. at 426. The lead Mu'Min dissent
added United States v. Addonizio, 451 F.2d 49 (3d Cir. 1971), to
that list. See Mu'Min, 500 U.S. at 446 (Marshall, J., dissenting).
Here is a sampling of those cases' key statements:
 Because "the nature of the publicity as a whole raised a
significant possibility of prejudice," the district court
"should have determined what in particular each juror had
heard or read and how it affected his attitude toward the
trial, and should have determined for itself whether any
juror's impartiality had been destroyed." Davis, 583 F.2d at
196.
 Because "the publicity surrounding the instant case was
tremendous," creating a "possibility" that prospective jurors
"had formed opinions before they entered the courtroom," the
district court "had a duty to inquire into pretrial publicity
on voir dire" — and the court's "general inquiry into whether
there was any reason [they] could not be fair and impartial
. . . was not expressly pointed at impressions [they] may
have gained from reading or hearing about the relevant
events." Dellinger, 472 F.2d at 375.
 "[W]hether a [prospective] juror can render a verdict based
solely on evidence adduced in the courtroom should not be
adjudged on [his] own assessment of self-righteousness" — and
given the amount of pretrial publicity, the district court
should have made "a careful, individual examination of each
of the jurors involved, out of the presence of the remaining
jurors, as to the possible effect of the articles" they had
read. Silverthorne, 400 F.2d at 639 (quotation marks
omitted).
 Invoking "our supervisory powers over the district courts in
this circuit, . . . we recommend" that district judges ask
content-specific questions in cases involving "a significant
possibility that [prospective jurors] will be ineligible to
serve because of exposure to potentially prejudicial
- 70 -
not abrogate" that court's earlier holding "that, where pretrial
publicity creates a significant possibility of prejudice, the
district court must make an independent determination of the
impartiality of jurors." United States v. Beckner, 69 F.3d 1290,
1292 n.1 (5th Cir. 1995) (discussing Davis).
The government also defends some (not all) of the judge's
reasons for declining to ask content-specific questions. But
concerns about "unmanageable data" from content-specific questions
— in a case where 1,373 prospective jurors each completed a 100-
question questionnaire and the judge designated 21 days for voir
dire — seem misplaced. So too does any fear that content-specific
questioning could accidentally create bias where none existed. If
potential jurors recall a particular piece of reporting well enough
to bring it up at voir dire, and the reporting is prejudicial,
then potential bias was already present. Far from "reinforc[ing]
potentially prejudicial information," content-specific
questioning would have brought such material front and center.
The parties and the judge could then assess the publicity's effect
on the prospective jurors' ability to reach a fair verdict, thus
putting the judge in a position to take any necessary measures to
protect Dzhokhar's fair-trial rights.
material." Addonizio, 451 F.2d at 67 (quotation marks
omitted).
- 71 -
Patriarca was a noncapital case, unlike Dzhokhar's. And
the pretrial publicity in Patriarca pales in comparison to the
pretrial publicity surrounding Dzhokhar's case. Surely then, with
his life at stake, Dzhokhar deserved the type of voir dire that
Patriarca calls for. See generally Sampson II, 724 F.3d at 159-
60 (suggesting that protections are generally heightened in
capital cases, because death is different from other kinds of
penalties).
In denying Dzhokhar mandamus relief on the venue-change
issue, it is reasonable to infer that the mandamus panels
reasonably expected that the judge would conduct the kind of
searching voir-dire inquiry required by our caselaw. But
regrettably, we conclude that his efforts fell short for the
reasons just stated. Dzhokhar's appellate counsel admitted at
oral argument that this error was harmless at the guilt stage,
given his trial concession (through his trial lawyer) that he had
done what the government accused him of doing. The government
suggests that "any error was harmless" at the penalty stage too,
because prospective jurors said that they could serve impartially.
Not only does the government push a theory that clashes with our
caselaw — caselaw that again says that in a situation like
Dzhokhar's, a judge cannot delegate to potential jurors the work
of judging their own impartiality. But the government never
- 72 -
explains how its flawed argument proves the error's harmlessness
beyond a reasonable doubt. See 18 U.S.C. § 3595(c)(2)(C)
(providing that "[t]he court of appeals shall not reverse or vacate
a sentence of death on account of any error which can be harmless"
if "the [g]overnment establishes beyond a reasonable doubt that
the error was harmless").31 So the government's harmless-error
theory is a nonstarter.
Given our ruling that the judge's Patriarca-based error
demands vacatur of the death sentences,32 the remaining issues
listed above (in the "Basic Appellate Arguments" section) require
only the briefest discussion — but discussion nevertheless, at
least on matters that may arise again on remand.
Regarding Dzhokhar's claim that #138 and #286 lied
during voir dire, we repeat a point made in our caselaw again and
again (and again) because it is so very important to our system of
justice: If a defendant "com[es] forward" at any point in the
litigation process "with a 'colorable or plausible'" juror-
misconduct claim, "an 'unflagging duty' falls to the district court
31 Proof beyond a reasonable doubt is evidence that lets a
rational "factfinder . . . reach a subjective state of near
certitude of the guilt of the accused." See Victor v. Nebraska,
511 U.S. 1, 15 (1994) (quoting Jackson v. Virginia, 443 U.S. 307,
315 (1979)).
32Vacatur is "[t]he act of annulling or setting aside." See
Vacatur, Black's Law Dictionary (11th ed. 2019).
- 73 -
to investigate the claim." United States v. French, 904 F.3d 111,
117 (1st Cir. 2018) (quoting United States v. Zimny, 846 F.3d 458,
464 (1st Cir. 2017)), cert. denied sub nom. Russell v. United
States, 139 S. Ct. 949 (2019). See generally Sampson II, 724 F.3d
at 169 (stressing that "[j]urors who do not take their oaths
seriously threaten the very integrity of the judicial process").
But our decision on the content-specific-questioning issue makes
it unnecessary to address the misconduct charge.33
And that same ruling also makes it unnecessary to touch
on Dzhokhar's argument that the judge wrongly excused #355 for his
views on the death penalty.
That leaves us with Dzhokhar's claim that the judge kept
him from asking case-specific death-penalty questions critical to
seating an impartial jury — questions like whether potential jurors
could consider mitigating circumstances on the ultimate life-or-
death issue, given "the specific allegations in his case: the
killing of multiple victims, one of them a child, in a premediated
33 Citing French, 904 F.3d at 120, Dzhokhar briefly argues
that any error regarding juror misconduct would require vacatur of
his convictions as well as the death sentence. But this case is
unique in that Dzhokhar's counsel admitted his guilt in the opening
and closing statements of the trial's guilt phase, and he has not
argued that he would have used a different trial strategy in
another venue or before a different jury. At oral argument here,
Dzhokhar's lawyer conceded that this guilt admission would allow
us to affirm the convictions despite the alleged juror-misconduct
error — or any other error, including venue. We agree.
- 74 -
act of terrorism." On this issue — which also gets abuse-of-
discretion review, see Casanova, 886 F.3d at 60 — it is enough for
us to say that even assuming without deciding that the judge had
to inform prospective jurors of certain case-specific facts, he
did do so here. Recall the judge's preliminary instructions to
prospective jurors before they filled out the questionnaires —
that Dzhokhar was "charged in connection with events that occurred
near the finish line of the Boston Marathon . . . that resulted in
the deaths of three people." Recall too the questionnaires'
"summary of the facts of this case" — that "two bombs exploded
. . . near the Boston Marathon finish line[,] . . . kill[ing]
Krystle Marie Campbell (29), Lingzi Lu (23), and Martin Richard
(8), and injured hundreds of others"; that "MIT Police Officer
Sean Collier (26) was shot to death in his police car"; and that
Dzhokhar "has been charged with various crimes arising out of these
events." And like the judge, we think that because potential
jurors knew these details, the voir dire adequately covered
Dzhokhar's case-specific questions.34
34 Dzhokhar argues that Ham v. South Carolina, 409 U.S. 524
(1973), prevents us from so holding. We see things differently,
however.
The state in Ham tried a locally known African-American civil-
rights activist on a marijuana-possession charge. Id. at 524-25.
He defended on the theory that the police had framed him as payback
for his civil-rights work. Id. at 525. Despite these
circumstances, the trial judge denied his request that voir dire
- 75 -
Having said all that needs saying on these subjects, we
press on — for the reader's information, everything from here on
out until we reach the crime-of-violence issue also falls within
the category of issues that could easily reappear on remand.
include questions aimed at racial prejudice. Id. at 525-26 & n.2
(noting that the proposed questions asked whether prospective
jurors could "fairly try this case on the basis of the evidence
and disregarding the defendant's race," whether they had "no
prejudice against negroes" or "[a]gainst black people," and
whether they "would . . . be influenced by the use of the term
'black'"). The Supreme Court later reversed his conviction because
"the essential fairness required by the Due Process Clause of the
Fourteenth Amendment requires that under the facts shown by this
record [he] be permitted to have the jurors interrogated on the
issue of racial bias." Id. at 527.
Dzhokhar notes that the state's brief there had argued that
the judge's general "bias or prejudice" question sufficed because
the defendant was "within sight" of the prospective jurors, who
could discern his race — which, according to the state, made the
specific questions about race redundant and thus unnecessary. See
Br. for Resp., Ham, 409 U.S. 524 (No. 71-5139), 1972 WL 135829, at
*3-4. And by Dzhokhar's account, the Supreme Court's reversal of
Ham's conviction "establishes that a [prospective juror's]
awareness of facts which could give rise to potential bias, coupled
with general questions about bias, do not obviate a particularized
investigation into prejudice." Extrapolating from this reading,
he argues that Ham shows the judge legally erred by deeming case-
specific questions about prospective jurors' death-penalty views
unnecessary because of what they already knew about the case. The
simplest response is that the Ham Court never addressed the state's
argument that a general question sufficed. So Ham does not help
his cause. See generally Ristaino v. Ross, 424 U.S. 589, 596
(1976) (emphasizing that "[b]y its terms, Ham did not announce a
requirement of universal applicability").
- 76 -
Mitigation Evidence About
Tamerlan's Possible Homicidal Past
We shift our focus to Dzhokhar's claim that the judge
damaged the defense's mitigation case by barring evidence tying
Tamerlan to a triple murder in 2011, and by keeping the defense
from seeing a confession Tamerlan's friend made to the FBI about
how he and Tamerlan had committed those crimes.
Background
On September 11, 2011 — the tenth anniversary of the
9/11 terrorist attacks — someone (or a number of someones) robbed
and killed three drug dealers in an apartment in Waltham,
Massachusetts. All three were found bound, with their throats
slit. These crimes remain unsolved to this day.
Fast forward to 2013. Soon after the Marathon bombings,
federal and state law-enforcement officers interviewed Tamerlan's
friend, Ibragim Todashev — a mixed-martial-arts fighter who had
come to the United States from Chechnya in 2008 and met Tamerlan
shortly afterwards.35 Officers interviewed Todashev, then living
Perhaps this is as good a place as any to say a few words
35
about Dzhokhar's family background, as best we can discern it from
the record.
Dzhokhar and Tamerlan's father, Anzor, is of Chechen ancestry
born in Kyrgyzstan. Their mother, Zubeidat, is of Avar ancestry
born in Dagestan. She and Anzor met as teenagers in Siberia in
the early 1980s — she was there living with her brother, and he
was stationed there with the Soviet Army. The two later married
and moved around a bit, living in Siberia, Chechnya, Dagestan, and
- 77 -
in Florida, four separate times in April and May. The first two
interviews focused on his relationship with Tamerlan and his
possible knowledge of the bombings. At some point, agents began
suspecting that Todashev had a hand in the 2011 murders. During
the final interview on May 21, Todashev said he knew something
about the murders and asked if he could get a deal for cooperating.
After waiving his Miranda rights, Todashev gave the
following account. Tamerlan recruited Todashev to rob the men.
They drove to a Waltham apartment, held the men at gunpoint (with
a gun Tamerlan had brought), beat them, and bound them with duct
tape. Not wanting to leave any witnesses, Tamerlan cut each man's
throat while Todashev waited outside (Todashev did not want any
part of the throat cutting, apparently). Tamerlan then waved
Todashev back in to help remove all traces of evidence.
Todashev agreed to write out a confession. But as he
was doing so, he attacked the agents — one of whom shot and killed
him. The FBI documented Todashev's statements in memos known as
302 reports. And a state trooper recorded most of his statements
Kyrgyzstan (for example). During this time, they had four children
— including Tamerlan (in 1986) and Dzhokhar (in 1993).
In 2002, with the region embroiled in a bloody war with
Russia, Anzor, Zubeidat, and Dzhokhar emigrated from Kyrgyzstan to
the United States — specifically, to Cambridge, Massachusetts.
Dzhokhar's other siblings joined them in 2003. Anzor and Zubeidat
returned to Russia in 2012, leaving Dzhokhar in the United States
with Tamerlan.
- 78 -
at his final interview. The Florida attorney general's office
investigated the circumstances of Todashev's death and found the
agent had acted reasonably in using deadly force.
Dzhokhar's lawyers repeatedly asked the judge pretrial
to make the government produce all reports and recordings of
Todashev's statements about the Waltham crimes, either directly to
them or to the judge for an in-camera inspection.36 The government
opposed each of the defense's motions, arguing that the sought-
after materials were not discoverable under the federal or local
criminal rules or under Brady v. Maryland, 373 U.S. 83 (1963), and
were protected by the law enforcement investigatory privilege.37
In the government's telling, because prosecutors had informed the
defense that Tamerlan had "participated in the Waltham triple
homicide," it did not have to disclose the actual reports and
recordings. After inspecting some of the items in camera, the
judge refused to disclose any of the materials documenting
Todashev's statements. Agreeing with the government that
In camera means "in a chamber."
36 See In Camera, Black's Law
Dictionary (11th ed. 2019).
Basically, this judge-devised doctrine sometimes keeps the
37
government from having to turn over materials law enforcement has
for use in criminal investigations — "sometimes," however, is a
tip-off that the privilege is not absolute, since it can be
overridden in appropriate cases by a party's need for the
privileged items. See, e.g., Puerto Rico v. United States, 490
F.3d 50, 64 (1st Cir. 2007).
- 79 -
prosecutors had "conveyed the fact and general substance of
Todashev's statements," the judge said that the FBI's 302 report
of Todashev's final interview did "not materially advance [the
mitigation] theory beyond what is already available to the
defense." The judge also said that disclosing Todashev's
statements "risk[ed] revealing facts seemingly innocuous on their
face, such as times of day or sequences of events," that "would
have a real potential to interfere with the ongoing state
investigation."
While all this was going on, a lawyer representing
Dzhokhar's college friend Dias Kadyrbayev — who faced prosecution
for hiding Dzhokhar's backpack and computer — told the government
that his client "may be able to provide" some information,
including that "Kadyrbayev learned in the fall of 2012 from
Dzhokhar . . . that Tamerlan . . . was involved in the Waltham
murders" and that "Dzhokhar . . . told Kadyrbayev that [Tamerlan]
'had committed jihad' in Waltham." The government disclosed
Kadyrbayev's lawyer's proffer to Dzhokhar's counsel.
Anyway, because of the judge's rulings, the defense
never learned key details about the murders (as disclosed by
Todashev) — including:
 Tamerlan brought the "tools" he and Todashev used to commit
the crimes (a gun, knives, duct tape, cleaning supplies).
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 Tamerlan and Todashev got into the apartment because Tamerlan
knew one of the victims, Brendan Mess — Tamerlan and Mess
were close childhood friends.
 Tamerlan had Todashev duct tape one of the victim's hands and
feet. And Tamerlan duct taped the others.
 Tamerlan beat Mess to try to get him to say where more money
was in the apartment.
 Todashev had agreed with Tamerlan to rob the men. But after
they had bound and robbed them, Tamerlan decided to kill the
men — a decision that made Todashev shake with nerves, because
while he did not want to participate in the murders, he felt
he "had to" since he "did not have a way out."
 Tamerlan slashed each man's throat.
 Tamerlan gave Todashev $20,000 from the money they had
stolen.38
The government later moved in limine to bar Dzhokhar
from introducing any evidence about the Waltham murders at the
guilt or penalty phases.39 Among other theories, the government
Following an order from us, authorized counsel got to review
38
the in-camera materials for the first time.
In limine means "at the outset" — "a motion . . . raised
39
preliminarily, esp[ecially] because of an issue about the
admissibility of evidence believed by the movant to be
prejudicial." See In-Limine, Black's Law Dictionary (11th ed.
2019).
- 81 -
called Todashev's statements about Tamerlan's role "unreliable"
since he had an obvious motive to pin the murders on someone else
(what the government did not tell the judge, however, was that
agents had previously relied on Todashev's statements in applying
for a search warrant to look for evidence from the Waltham
homicides in Tamerlan's car). The government also argued that,
apart from Todashev's statements, it had no "evidence that Todashev
and/or Tamerlan . . . actually participated in the Waltham triple
homicides." The government further claimed that Todashev's
statements should not come in because he "cannot be cross-
examined," because he "obviously was not of sound mind" since he
attacked armed agents, and because admitting this evidence would
confuse the jurors by opening the door to "a great deal of
information having nothing to do with" Dzhokhar's crimes. And the
government claimed that "[t]here's no evidence that the defense
can point to anywhere, including . . . Todashev's own statement,
that Tamerlan . . . controlled him in any way."
Dzhokhar's lawyers argued in opposition that evidence
showing Tamerlan's having committed the crimes was highly
probative of the brothers' respective roles in the bombings and
was sufficiently reliable to be admitted under the evidentiary
standards applicable at the penalty phase. They also stressed
that whether to credit Todashev's statements was for the jury.
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The judge orally granted the government's in-limine
motion, finding that "there simply is insufficient evidence to
describe what participation Tamerlan may have had" in the Waltham
murders. From his check of the evidence — which "include[d] an
in-camera review of some Todashev 302s," but not the recordings of
the confession — the judge thought that "it [was] as plausible
. . . that Todashev was the bad guy and Tamerlan was the minor
actor." So the judge concluded that the murder evidence "would be
confusing to the jury and a waste of time, . . . without any
probative value."
Dzhokhar's mitigation theory portrayed him as influenced
by Tamerlan to take part in the Marathon bombings. "[I]f not for
Tamerlan," said his lawyer to the penalty-phase jury, "this
wouldn't have happened." And the defense sought to prove several
mitigating factors about their relationship and their relative
culpability — including:
 Dzhokhar "acted under the influence of his older brother";
 "because of Tamerlan's age, size, aggressiveness, domineering
personality, [and] privileged status in the family," Dzhokhar
"was particularly susceptible to his . . . influence";
 "Dzhokhar['s] . . . brother Tamerlan planned, led, and
directed the Marathon bombing[s]";
- 83 -
 "Dzhokhar . . . would not have committed the crimes but for
his older brother Tamerlan"; and
 "Tamerlan . . . became radicalized first, and then encouraged
his younger brother to follow him."
Without the Waltham evidence, the defense supported its mitigation
theory with testimony like:
 Tamerlan became radicalized first, began proselytizing his
views, and sent jihadi materials to Dzhokhar;
 the oldest brother in a Chechen family like the Tsarnaevs
usually receives deference (an associate professor from
Princeton University testified that "it's expected that the
younger brothers will listen to the older brother");
 Tamerlan occasionally broke the rules of the gym he belonged
to (he used other members' equipment without asking, for
instance);
 Tamerlan sometimes got argumentative at a mosque (for
example, he twice called the Imam a "hypocrite");
 Tamerlan yelled at a store owner for selling halal turkey for
Thanksgiving (halal is a term associated with Islamic dietary
laws); and
 Tamerlan once might have physically abused his then-
girlfriend (he later married her).
- 84 -
Conversely, the government tried to convince the jury
that Dzhokhar should die because he and Tamerlan were equally
culpable in the bombings and that Tamerlan had played no role in
Dzhokhar's decision to participate. During the penalty phase, the
government argued that the defense's mitigation evidence consisted
of little more than "testimony that Tamerlan was bossy." The
government also described Tamerlan as a "handsome," "charming,"
"loud" guy who "sometimes lost his temper." And the government
implored the jurors to "ask [themselves] if there's anything about
Tamerlan . . . that will explain . . . how Dzhokhar . . . could
take a bomb, leave it behind a row of children, walk . . . down
the street, and detonate it." Insisting that no evidence supported
the notion that Tamerlan had "coerced or controlled" Dzhokhar, the
government labeled the brothers "a partnership of equals" and so
"bear the same moral culpability for what they did."
Basic Appellate Arguments
Dzhokhar presents essentially two arguments about the
judge's handling of the Waltham evidence. The first claim is that
the judge violated his right to present a complete mitigation
defense by keeping from the jury major proof of Tamerlan's brutal
past, his ability to enlist others in acts of extreme cruelty, and
thus his relative culpability — an error the government exploited
by distorting Tamerlan's character and suggesting no evidence
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showed his influence over Dzhokhar. The second claim is that the
judge violated his Brady rights by refusing to give the defense a
302 report and recordings of Todashev's confession — evidence that,
"if presented," would have shown "why Tamerlan was to be feared,
and his ability to influence others to commit horrific crimes."
The government takes a different view of the matter.
According to the government, the Waltham evidence was not relevant
mitigation evidence because nothing suggests Tamerlan's alleged
commission of the Waltham crimes had any link to Dzhokhar's
commission of the crimes here. And, says the government, even if
the Waltham evidence had some slight relevance, the judge rightly
excluded it because the risks of confusing the issues and
misleading the jury outweighed any probative worth. The government
also thinks that any error by the judge was harmless beyond a
reasonable doubt because "overwhelming[]" evidence (the
government's word) showed Dzhokhar willingly engaged in the crimes
charged here. Wrapping up, the government says that the
undisclosed "information was not discoverable under Brady" and
"was subject to the law enforcement privilege."
Analysis
We give abuse-of-discretion review to preserved disputes
over whether the judge wrongly excluded mitigating evidence at the
penalty phase, showing "great deference" to his balancing of the
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evidence's probative worth against its possible prejudice. See
United States v. Sampson, 486 F.3d 13, 42 (1st Cir. 2007) ("Sampson
I").40 We also give abuse-of-discretion review to preserved
disputes over whether the judge wrongly kept Brady material from
the defense. See United States v. Bulger, 816 F.3d 137, 153 (1st
Cir. 2016).
With these preliminaries out of the way, we turn to
Dzhokhar's first claim: that the judge committed prejudicial error
by keeping the Waltham evidence from the jury at the penalty phase.
Because it is "desirable for the jury to have as much
information before it as possible when it makes the sentencing
decision," the Supreme Court has for years said that if "the
evidence introduced and the arguments made . . . do not prejudice
a defendant, it is preferable not to impose restrictions." Gregg
v. Georgia, 448 U.S. 153, 203-04 (1976). So a defendant convicted
of capital crime has a constitutional right to put before the jury,
"as a mitigating factor, any aspect of [his] character or record
and any of the circumstances of the offense that [he] proffers as
40Dzhokhar argues that we owe no deference because the judge
"reviewed only the summary 302 report prepared by the FBI" and not
"the video and audio recordings themselves." But the two cases he
cites do not help him, because the judges there — unlike the judge
here — denied discovery without reviewing any of the at-issue
materials. See United States v. Rosario-Peralta, 175 F.3d 48, 55
(1st Cir. 1999); United States v. Buford, 889 F.2d 1406, 1407 (5th
Cir. 1989).
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a basis for a sentence less than death." Lockett v. Ohio, 438
U.S. 586, 604 (1978) (plurality opinion); see also Eddings v.
Oklahoma, 455 U.S. 104, 110 (1982) (adopting the rule announced by
the Lockett plurality). Mitigating factors include aspects of
"the defendant's background, record, or character or any other
circumstance of the offense that mitigate against imposition of
the death sentence," see 18 U.S.C. § 3592(a)(8) — like, for
instance, information bearing on the extent and nature of each
defendant's role in the charged crime, see Green v. Georgia, 442
U.S. 95, 97 (1979) (finding a constitutional violation where the
judge excluded penalty-phase evidence showing a codefendant's
primary role).
This standard is broad, reflecting the idea "that
punishment should be directly related to the personal culpability
of the criminal defendant." See Penry v. Lynaugh, 492 U.S. 302,
319 (1989), abrogated on other grounds by Atkins v. Virginia, 536
U.S. 304 (2002); see also Enmund v. Florida, 458 U.S. 782, 801
(1982) (emphasizing that "punishment must be tailored to [a
defendant's] personal responsibility and moral guilt"). And
consistent with this lenient approach, mitigating information need
not be admissible under the rules of evidence to get in. See 18
U.S.C. § 3593(c). All of which is why the normally low relevance
threshold in noncapital cases is lower still when it comes to
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mitigation evidence in capital cases: Relevant "mitigating
evidence" encompasses any "evidence which tends logically to prove
or disprove some fact or circumstance which a fact-finder could
reasonably deem to have mitigating value." See Smith v. Texas,
543 U.S. 37, 44 (2004). Once this modest "threshold . . . is met,"
the Constitution "'requires that the jury be able to consider and
give effect to' a capital defendant's mitigating evidence." See
Tennard v. Dretke, 542 U.S. 274, 285 (2004) (quoting Boyde v.
California, 494 U.S. 370, 377-78 (1990)); see also Green, 442 U.S.
at 97 (holding that a "mechanistic[]" use of the hearsay rule to
keep a capital defendant from introducing mitigating evidence at
sentencing in a capital case offends due process (quotation marks
omitted)).
None of this is code for anything goes, however. For a
judge can exclude "information" if "its probative value is
outweighed by the danger of creating unfair prejudice, confusing
the issues, or misleading the jury." See 18 U.S.C. § 3593(c); see
also Sampson I, 486 F.3d at 45 (stating that the "low barriers to
admission of evidence in a capital sentencing hearing 'do[] not
mean that the defense has carte blanche to introduce any and all
evidence that it wishes'" (quoting United States v. Purkey, 428
F.3d 738, 756 (8th Cir. 2005))).
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The government in our case recognized that Dzhokhar's
penalty-phase defense turned on what Tamerlan's role was. Which
probably explains why in its own penalty-phase arguments, the
government continually called the brothers equally culpable and
stressed Tamerlan's lack of influence over Dzhokhar. The jurors
cared about the brothers' relative culpability as well, a point
made quite clear by their not recommending death for Dzhokhar on
the capital counts involving Tamerlan's conduct in setting off the
first bomb. And given how the proceedings played out, the
probative value of showing that the bombings were not the first
time Tamerlan committed acts of brutality and persuaded others to
help him is obvious. So we cannot agree with the judge that the
Waltham evidence lacks (emphasis ours) "any" probative force.
Inspired by his jihadi beliefs, Tamerlan's lead role in
the Waltham killings — felonies (according to the kept-out
evidence) that he committed without Dzhokhar — makes it reasonably
more likely that he played a greater role in the crimes charged
here than Dzhokhar.41 And as we said a moment ago, evidence showing
a defendant's minor role in the offense is relevant mitigating
evidence under the rule broadcast in Lockett. See Enmund, 458
U.S. at 797-98.
As Dzhokhar tells us in his reply brief, the government
41
never suggests that Tamerlan did not commit the killings.
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But there is more to be said in Dzhokhar's favor than
that.
The Waltham evidence was also highly probative of
Tamerlan's ability to influence Dzhokhar. Because of the judge's
decisions, Dzhokhar did not present proof showing how he learned
(months after the fact, per college-acquaintance Kadyrbayev) that
Tamerlan had butchered the men, one of whom was a close friend —
actions motivated by Tamerlan's vision of jihad.42 But evidence
of this sort could reasonably have persuaded at least one juror
that Dzhokhar did what he did because he feared what his brother
might do to him if he refused (and remember, a jury may consider
any mitigating factor at least one juror found proved by a
preponderance of the information). Or put slightly differently,
at least one juror could reasonably have found that because of
what had happened in Waltham, Tamerlan was not just "bossy" (to
use the prosecutor's word) but a stone-cold killer who got a friend
to support his fiendish work. And if Tamerlan could influence
Todashev (a mixed-martial-arts bruiser who followed Tamerlan
because he "did not have a way out"), Tamerlan's influence over
Dzhokhar (his younger brother with no prior history of violence)
Defense counsel told us at oral argument that once the
42
judge granted the government's in-limine motion barring any
mention of the Waltham crimes, Dzhokhar had no basis for trying to
get his statements to Kadyrbayev admitted.
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could be even stronger.43 All of which strengthens two of
Dzhokhar's mitigating factors — his susceptibility to Tamerlan's
influence, and his having acted under Tamerlan's influence.
And despite its hard work, the government's responses do
not persuade us otherwise.
The government's lead argument is that the Waltham
evidence cannot clear the low relevancy hurdle because that
evidence (at least in its mind) would have told the jurors nothing
about the brothers' relative culpability here. Not so. Again,
Dzhokhar premised his mitigation theory on his being less culpable
than Tamerlan because he would not have committed the charged
crimes but for Tamerlan's influence. And Tamerlan's earlier
domineering and deadly acts had relevance to this theory. The
judge admitted other, lesser evidence of Tamerlan's belligerence
— like his screaming at others for not conforming to his view of
how a good Muslim should act. And the judge did so because he
deemed that evidence relevant to Tamerlan's "domination." Even
this limited evidence convinced some jurors to find the existence
Of course, when the government told the judge that he should
43
bar the materials because "[t]here's no evidence that the defense
can point to anywhere, including . . . Todashev's own statement,
that Tamerlan . . . controlled him in any way," the defense did
not have Todashev's statement — including his telling comment that
he felt he "had to" help Tamerlan with the murder clean up because
he "did not have a way out."
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of mitigating factors touching on Tamerlan's prior radicalization,
leadership role in the bombings, and influence over Dzhokhar. And
if Tamerlan's yelling at someone for selling halal turkeys had the
effect of showing his dominance and radicalization, then evidence
of his having conscripted a friend into a jihad-inspired robbery
and killing scheme would have increased that effect exponentially.
The government is wrong to imply that the jury had to
make leaps of imagination to connect what Tamerlan did in Waltham
to his influence over Dzhokhar. If the judge had admitted this
evidence, the jurors would have learned that Dzhokhar knew by the
fall of 2012 that Tamerlan had killed the drug dealers in the name
of jihad. They also would have known that it was only after these
killings that Dzhokhar became radicalized as well: Evidence
actually admitted showed that Dzhokhar first flashed signs of
radicalization — as is obvious from his texts on jihad — after
spending a holiday break with Tamerlan several weeks or so after
learning about the Waltham murders.44 So if the jurors had heard
Todashev's description of how he felt powerless to withdraw from
the Waltham crimes once Tamerlan chose to turn an armed robbery
into a triple murder, at least one juror might have found that
44 For example, texting with someone (a friend, presumably)
about life plans, Dzhokhar wrote: "I wanna bring justice for my
people."
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Dzhokhar felt the same way when it came to the bombings in early
2013.
And if the judge had admitted the Waltham evidence —
evidence that shows (like no other) that Tamerlan was predisposed
to religiously-inspired brutality before the bombings and before
Dzhokhar's radicalization45 — the defense could have more
forcefully rebutted the government's claim that the brothers had
a "partnership of equals." The Waltham evidence would have helped
the defense show that Tamerlan inspired his younger brother not
only to believe in jihad but also to act on those beliefs — just
as he had in Waltham (again, the government does not suggest that
Tamerlan did not commit the murders). Similarly, the evidence
could have helped the defense counter the government's argument
that Tamerlan and Dzhokhar "bear the same moral culpability" and
that Dzhokhar acted "independently" in placing the bomb at the
finish line — for the evidence showed that Tamerlan, unlike
Dzhokhar, had a history of horrific violence, which he justified
as jihad; that Tamerlan, unlike Dzhokhar, had previously
instigated, planned, and led brutal attacks; and that Tamerlan,
unlike Dzhokhar, had influenced a less culpable person (Todashev)
to participate in murder.
Think back to how the Waltham murders occurred on the decade
45
anniversary of the 9/11 attacks.
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The government still could have argued to the jurors —
as it does to us — that Dzhokhar was nevertheless a willing
criminal. The government also could have challenged the evidence's
reliability, arguing that other than his self-serving statement
about thinking he "had to" help clean up the scene, nothing proves
Tamerlan bullied Todashev into doing anything. See 18 U.S.C.
§ 3593(c) (providing that either party can rebut any information
received at the hearing). And maybe the government could have
argued that the evidence undercuts Dzhokhar's mitigation theory —
saying something like, Tamerlan had to pay Todashev money to get
him to go along, while Dzhokhar joined on for free; and Todashev
opted not to kill, while Dzhokhar killed with no reluctance or
regret. But all of this goes to weight and credibility and not to
admissibility — i.e., the effect of Tamerlan's prior violence on
Dzhokhar's radicalization, on his willingness to go from texting
to bombing, was something the jurors should have gotten to decide
for themselves. See, e.g., United States v. Guzmán-Montañez, 756
F.3d 1, 9 (1st Cir. 2014) (explaining that "[w]hen the issue lies
on credibility of the evidence, it is up to the jury to decide"
and adding that "[t]he factfinder is free to conduct its own
interpretation of the evidence"); Nelson v. Quarterman, 472 F.3d
- 95 -
287, 313 (5th Cir. 2006) (en banc) (noting that the "strength" or
"sufficiency" of mitigating evidence is for the jury to decide).46
The government insists that because the circumstances of
the Waltham killings are too dissimilar to the bombings, the
Waltham evidence has no relevance here. But in both situations,
Tamerlan committed murder with help from someone who gave no prior
sign of a willingness to commit such acts. And in both situations,
Tamerlan used his interpretations of Islam to justify his actions.
So the government's too-dissimilar argument has no merit either.
Shifting from the relevancy question, the government
defends the judge's actions by insisting that the Waltham
evidence's admission would have led to mini-trials over whether
Todashev's version of the killings "was believable" or just a pack
of lies told to minimize his responsibility for those crimes. But
the concern is overblown. As Dzhokhar notes, the defense could
have relied, for instance, on the government's sworn search-
warrant materials (to search Tamerlan's car after the bombings)
46 The government does not argue that Todashev's
unavailability precludes admission in the penalty-phase context —
perhaps because of the relaxed evidentiary standards. And the
judge permitted the statements of other unavailable witnesses at
the penalty phase — including FBI 302 reports summarizing
interviews of some of Tamerlan's friends.
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that credited Todashev's statements to the FBI.47 The government
now tries to soft-pedal its crediting of Todashev's account in the
search-warrant affidavit as "a far cry from embracing those claims"
at trial. But when the agent swore out the affidavit and the
prosecutor submitted the materials to the magistrate judge, the
government confirmed its belief in Todashev's veracity. See
47An FBI agent swore out an affidavit saying that "there is
probable cause to believe that Todashev and Tamerlan planned and
carried out the murder of three individuals in Waltham . . . in
September 2011." "On May 21, 2013," the affidavit stated,
law enforcement agents interviewed Todashev. Todashev
confessed that he and Tamerlan participated in the
Waltham murders. He said that he and Tamerlan had agreed
initially just to rob the victims, whom they knew to be
drug dealers . . . . Todashev said that he and Tamerlan
took several thousand dollars from the residence and
split the money. Todashev said that Tamerlan had a gun,
which he brandished to enter the residence.
The affidavit further said that
Tamerlan decided that they should eliminate any
witnesses to the crime, and then Todashev and Tamerlan
bound the victims, who were ultimately murdered.
Todashev went on to say that after the murders, Tamerlan
and Todashev tried to clean the crime scene . . . to
remove traces of their fingerprints and other
identifying details. . . . [T]o clean the scene,
Todashev said that they used bleach and other chemicals
to clean surfaces, and even poured some on the bodies of
the victims. Todashev said that they spent over an hour
cleaning the scene.
And the affidavit also noted that
Todashev said that Tamerlan had picked Todashev up in
the Target Vehicle and they traveled to the scene of the
Waltham murders together. After the robbery and murder,
they left the scene in the Target Vehicle.
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generally Franks v. Delaware, 438 U.S. 154, 164-65 (1978)
(explaining that "[w]hen the Fourth Amendment demands a factual
showing sufficient to comprise 'probable cause,' the obvious
assumption is that there will be a truthful showing," and adding
that "it is to be 'truthful' in the sense that the information put
forth is believed or appropriately accepted by the affiant as
true"). We know of no reason why the sworn affidavit — which the
government asked the magistrate judge to credit — should now be
disbelieved. To this we add that the judge retained control over
how much of this evidence could have come in. He also could have
limited the evidence as appropriate or cut off the presentation if
the evidence became too extensive — a more suitable remedy than
barring all evidence of Tamerlan's murderous past. So in the end
we think the Waltham evidence was sufficiently reliable to go to
the jurors, who could then decide whether to believe it and how
much weight (if any) to assign it in mitigation. See Guzmán-
Montañez, 756 F.3d at 9.
The government is also off-base in saying that "[t]he
Waltham evidence would have confusingly focused the jury's
attention on Tamerlan's character and the circumstances of an
unrelated offense." But the parties and the judge put the
mitigating factors before the jury, front and center — factors
that made clear that Tamerlan's character and prior conduct were
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relevant because they bore on the broader circumstances of
Dzhokhar's commission of the charged crimes.48 Arguing to the
jury, the government called Dzhokhar's mitigation theory (centered
on Tamerlan's influence over him) baseless because no evidence
supported it. But the Waltham evidence could have been that
evidence. And it would not have confused the jurors to have
learned about it. Caselaw tells us to presume that juries follow
instructions. See, e.g., Richardson v. Marsh, 481 U.S. 200, 211
(1987). And the jurors' penalty-phase verdicts — not recommending
death on 11 of the 17 death-eligible counts — show they fully
understood that Tamerlan's relative culpability was mitigating
only to the extent it bore on the brothers' respective roles in
committing the charged crimes.49 Which compels us to reject the
government's claim that the jurors would have lost sight of this
distinction.
48We are referring here to the mitigating factors mentioned
in the second bullet-point list above, which required the jurors
to resolve a set of "whethers": whether Dzhokhar acted under the
influence of Tamerlan; whether Tamerlan's aggressiveness made
Dzhokhar susceptible to following his lead; whether Tamerlan
instigated and led the bombings; whether Dzhokhar would ever have
committed these crimes were it not for Tamerlan; and whether
Tamerlan radicalized first and encouraged Dzhokhar to follow him.
49 The jury, for example, recommended death on those counts
dealing with Dzhokhar's placing a bomb (the zenith of Dzhokhar's
responsibility) but did not recommend death on those counts dealing
with Tamerlan's placing a bomb (the nadir of Dzhokhar's
responsibility).
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So we find the judge abused his discretion in banning
the Waltham evidence. Compare McKinney v. Arizona, 140 S. Ct.
702, 706 (2020) (stressing "that a capital sentencer may not refuse
as a matter of law to consider relevant mitigating evidence"),
with United States v. Rodriguez, 919 F.3d 629, 634 (1st Cir. 2019)
(explaining "that a material error of law always amounts to an
abuse of discretion"). The government thinks that any error was
harmless beyond a reasonable doubt.50 But the government's
harmlessness claim is essentially a reprise of its argument in
support of exclusion: In its view, just as the Waltham evidence
is irrelevant because it does not show that Dzhokhar participated
in the bombings under Tamerlan's influence, for the same reasons,
its exclusion could not have affected the jurors' decision. Again,
though, the exclusion of the Waltham evidence undermined
Dzhokhar's mitigation case. Sure, as the government argues, a
jury armed with the omitted evidence still might have recommended
death. But the omitted evidence might have tipped at least one
juror's decisional scale away from death. In other words, the
government cannot show to a "near certitude," see Victor, 511 U.S.
50The parties spar a bit over whether a judge's mistake in
banning mitigating evidence is subject to harmless-error review.
Dzhokhar argues it is not; the government argues it is. We need
not get into that here: Even under its preferred approach, the
government cannot win because (as we are about to explain) the
government cannot satisfy its harmlessness burden.
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at 15, that the excluded evidence — that Tamerlan cold-bloodedly
killed the drug dealers, all in the name of jihad — would not have
convinced even one juror that (contrary to the government's jury
argument) Dzhokhar did not "bear the same moral culpability" as
Tamerlan, see Skipper v. South Carolina, 476 U.S. 1, 8 (1986)
(holding that because the judge's ruling excluding mitigating
evidence "may have affected the jury's decision to impose the death
sentence," the error was "sufficiently prejudicial" to require
vacatur of the defendant's death sentence).
This leaves us then with Dzhokhar's Brady-based
challenge: that the judge also erred by denying the defense access
to additional evidence both favorable and material to him —
specifically, the report and recordings of Todashev's FBI
confession.
Prosecutors have an "inescapable" duty "to disclose
known, favorable evidence rising to a material level of
importance." Kyles v. Whitley, 514 U.S. 419, 438 (1995)
(discussing Brady). Favorable evidence includes both exculpatory
and impeachment evidence that is relevant either to guilt or
punishment. See, e.g., United States v. Bagley, 473 U.S. 667,
674-76 (1985); Giglio v. United States, 405 U.S. 150, 154 (1972).
Material evidence includes information that creates a "reasonable
probability" of a different outcome, see Kyles, 514 U.S. at 433 —
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and in a capital case that encompasses data that "play[s] a
mitigating, though not exculpating, role," see Cone v. Bell, 556
U.S. 449, 475 (2009). But make no mistake: "A reasonable
probability does not mean that the defendant 'would more likely
than not have [gotten] a different [result] with the evidence,'
only that the likelihood of a different result is great enough to
'undermine[ ] confidence'" in the proceeding's outcome. See Smith
v. Cain, 565 U.S. 73, 75 (2012) (last alteration in original)
(quoting Kyles, 514 U.S. at 434). To find the withheld evidence
not material, the judge must conclude that the other evidence is
so overwhelming that, even if the undisclosed evidence had gotten
in, there would be no "reasonable probability" of a different
result. And this standard is not met just because the government
"offers a reason that the jury could have disbelieved [the withheld
evidence], but gives us no confidence that it would have done so."
Id. at 76.
Several pages earlier we noted how the judge ruled that
the government had already given the defense the gist of Todashev's
statements and so the sought-after material did "not materially
advance [the mitigation] theory beyond what is already available
to the defense." But as we also explained, that material had
information that the defense never saw below, including: that
Tamerlan planned the Waltham crime, got Todashev to join in, and
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brought the key materials (gun, knives, duct tape, and cleaning
supplies) to the apartment; that Tamerlan thought up the idea of
killing the three men to cover up the robbery; and that Todashev
felt "he did not have a way out" from doing what Tamerlan wanted.
Todashev's confession showed — probably more than any other
evidence — how and why Tamerlan inspired fear and influenced
another to commit unspeakable crimes and thus strongly supported
the defense's arguments about relative culpability. And armed
with these withheld details, the defense could have investigated
further and developed additional mitigating evidence. To us, this
means there is a reasonable probability that the material's
disclosure would have produced a different penalty-phase result.
So the confession constituted Brady material, making it reversible
error for the judge to rule the evidence off-limits from discovery.
And we find that the judge also erred by relying on the
qualified law enforcement investigatory privilege. As the party
asserting the privilege, the government had the burden of showing
that withholding the FBI report and recordings would achieve the
privilege's "underlying purpose" of not jeopardizing an ongoing
investigation. See Puerto Rico, 490 F.3d at 62-64 (recognizing "a
qualified privilege for law enforcement techniques and
procedures"). The showing must be specific not speculative,
concrete not conclusory. See id. at 62. But the government
- 103 -
offered no specific ways in which disclosure would have endangered
the ongoing Waltham-murders investigation — particularly if
disclosure occurred under a protective order. See Ass'n for
Reduction of Violence v. Hall, 734 F.2d 63, 66 (1st Cir. 1984)
(emphasizing that where possible, a court should accommodate a
moving party's interest in disclosure through excising privileged
sections, editing or summarizing documents, or okaying discovery
subject to a protective order). The Waltham murders occurred in
2011. By 2015, when Dzhokhar's penalty phase began, the only
identified suspects — Tamerlan and Todashev — were both dead. And
the government did not ask the district attorney's office to
explain whether and why the privilege was still viable.
Ultimately, the judge's speculation about how disclosing
Todashev's statements might compromise the investigation was just
that: speculation. Which as we just observed is not sufficient.
The long and the short of it is that the judge's handling
of the Waltham evidence provides an additional basis for vacating
Dzhokhar's death sentences.51
Judge Kayatta does not join in this section of our opinion
51
entitled Mitigation Evidence About Tamerlan's Possible Homicidal
Past to the extent it finds an abuse of discretion in refusing to
admit the Todashev statements themselves. He does agree that the
fact of the Waltham murders, the fact that law enforcement had
probable cause to suspect Tamerlan as the perpetrator, the
relationship of one of the victims to Tamerlan, and Dzhokhar's
professed understanding of Tamerlan's involvement as reflected in
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Mitigation Evidence About
Dzhokhar's Mental Condition
We now consider Dzhokhar's claim that the judge
infracted his constitutional right against compelled self-
incrimination and the criminal rules of procedure by conditioning
the admission of his "non-testimonial neuropsychological evidence"
on his "be[ing] interrogated, without limits, by government
experts."
Background
A death-penalty defendant wishing to make an issue of
his mental health and present expert evidence on that subject must
notify the government within specified time limits. See Fed. R.
Crim. P. 12.2(b). If he does that, the judge may order a rebuttal
exam by the government's expert "under procedures ordered by the
[judge]." See Fed. R. Crim. P. 12.2(c)(1)(B). Judges often
appoint assistant U.S. attorneys from another district as "fire-
walled" attorneys to handle this process. See, e.g., United States
v. Sampson, 335 F. Supp. 2d 166, 244-45 (D. Mass. 2004). The
results and reports from a rebuttal exam must be sealed and not
given to the prosecution or the defense unless the defendant is
found guilty and confirms his intent to rely on mental-condition
evidence during the penalty phase. See Fed. R. Crim. P.
the Kadyrbayev letter, collectively satisfied the low threshold
for admissibility in the penalty phase of the trial.
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12.2(c)(2). If this happens, the defendant must then give the
government any results and reports of his mental condition "about
which [he] intends to introduce expert evidence." See Fed. R.
Crim. P. 12.2(c)(3). But prosecutors cannot use any statement he
made during an exam conducted under this regime unless he first
introduces evidence of his mental condition, see Fed. R. Crim. P.
12.2(c)(4) — a rule designed to protect a defendant's Fifth
Amendment privilege against compulsory self-incrimination,52 see
Fed. R. Crim. P. 12.2 advisory committee notes. See also generally
Estelle v. Smith, 451 U.S. 454, 466-69 (1981) (recognizing that a
psychiatrist's court-ordered competency exam in a capital case
raised the same Fifth (and Sixth) Amendment concerns as an in-
custody interrogation by law enforcement); Buchanan v. Kentucky,
483 U.S. 402, 424 (1987) (explaining that if a defendant tries to
establish a mental-status defense, the government may
constitutionally force him to submit to an interview with a mental-
health expert for "limited rebuttal purpose[s]").
Citing Criminal Rule 12.2, Dzhokhar's lawyers filed a
pretrial notice of intent to introduce expert evidence about "his
mental condition as it bears on the issue of punishment."
52 The self-incrimination clause of the Fifth Amendment
provides that "[n]o person . . . shall be compelled in any criminal
case to be a witness against himself." U.S. Const. amend. V.
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Simultaneously, they told the prosecution that they planned on
presenting "neuropsychological testimony" that would rely on the
results of various tests done on Dzhokhar (an intelligence test,
for example). The judge created a separate sealed docket and
appointed two fire-walled assistant U.S. attorneys from
Connecticut and New York to manage the government's rebuttal exams
and to represent the government in any related litigation. In an
ex-parte proffer to the judge, Dzhokhar's attorneys claimed that
the neuropsychological and neuroimaging exams revealed information
that would support his mitigation theory.53
Through the fire-walled attorneys, the government told
the defense that it intended to have two experts examine Dzhokhar.
The first would do a clinical interview of him and administer some
tests (the just-mentioned intelligence test being one of them).
The second would do a psychiatric exam focusing on his "life
choices," especially "those decisions and actions underlying the
charged criminal conduct," while also "explor[ing] the effects, if
any of [his] social history, personality, mental state, social
53Ex parte is a Latin phrase basically meaning only one side
is heard — "[d]one or made at the instance and for the benefit of
one party only, and without notice to, or argument by, anyone
having an adverse interest." See Ex Parte, Black's Law Dictionary
(11th ed. 2019).
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environment, family influences, peer pressure, and any duress to
which [he] may have been subjected."54
The defense objected to the government's notice.
Insisting that prosecutors have "only a limited rebuttal right,"
the defense asked the judge to limit the exams of the government
experts to "the same type of testing conducted by the defense
experts" — i.e., "objective" tests, like the "computer based
tests," "pen and paper tests," "physical tests," and "neuroimaging
test[s]" that the defense experts used. None of these tests, the
defense argued, would elicit or rely on statements by Dzhokhar
expressing his views about his own symptoms or history. So
according to the defense, the judge had to bar the government
experts from "asking questions beyond those specified in the test
instruments themselves, or otherwise engaging [Dzhokhar] in any
communication intended to elicit testimonial evidence, including[]
opinions, view[s], beliefs, historical information or anything
else." That is because asking such questions would "compel him to
testify against himself," or so the defense contended.
Responding, the fire-walled attorneys argued that
Dzhokhar could not "dictate and limit" their experts' "testing by
54 The government also indicated that it wanted Dzhokhar to
undergo some brain-imaging scans, with a third doctor then
analyzing the results. But the defense has not complained about
this proposed testing, either below or here.
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selecting certain tests and then objecting to different tests that
inform the subject matter under inquiry." Dzhokhar, they noted,
had not revealed exactly "what type of mental disease or defect
defense he is intending to assert" — though they suspected he would
"claim that he was particularly susceptible to his brother's
persuasion" based on "a dependent personality disorder." And they
insisted that the government's proposed exams would rebut that
claim by showing he could think independently. Admittedly, some
of the information the experts got might not be admissible, they
said — but they insisted that "curtailing the government's right
to prepare at this juncture d[id] nothing more than allow the
defendant to present completely un-contradicted testimony."
After a hearing, the judge overruled Dzhokhar's
objection. Rule 12.2 did not "limit[] the rebuttal to simply the
same . . . tests or investigations" that the defense performed,
the judge said. "[A]n appropriate rebuttal," the judge pointed
out, might be "to say that the wrong tests were done or that
insufficient tests were done." The judge did not want to prevent
the government experts from using tests that they in their
"professional judgment" deemed "appropriate." But the judge made
clear that his ruling did not "mean necessarily" that the exams'
results would be "admissible" or "usable" at trial — it all
depended on what the "defense present[ed]." Attempting one last
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stand, defense counsel argued that "we are offering nothing
testimonial from [Dzhokhar]," just "the results of pen-and-paper
tests." So the defense asked the judge to "make the rebuttal call
now as opposed to exposing [him] to an interrogation by a
government agent, essentially." But the judge remained unmoved.
"I don't think I can make it until I know what the exam[s] might
reveal and what [any government expert] might be offered to say."
Consequently, the exams could go forward, even though they "may
not produce admissible evidence" — an approach that he said posed
no constitutional problems.
After the ruling (but before the government experts
could examine him), Dzhokhar withdrew his Rule 12.2 notice. "The
broad scope" of the planned exams, his lawyers wrote, "without the
presence of counsel," plus "the use the [judge] indicated can be
made" of the exams' results, violate Dzhokhar's constitutional
rights and clash with Rule 12.2. As the defense saw things,
"[t]hese conditions separately and cumulatively impose too great
a cost on the introduction of [his] proposed [mental-health]
evidence."
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Basic Appellate Arguments
Broadly speaking, Dzhokhar claims that the judge created
a "constitutional mismatch." In his telling, the results of the
testing he planned to introduce were not testimonial in any
constitutional sense. During his test-taking — which he calls a
"pen and paper" exercise, like having his "reflexes" evaluated —
he neither offered his beliefs or thoughts on "historical or life
events," nor talked about "the crimes charged against him[] or his
family background." Contrastingly — at least according to Dzhokhar
— and "as the price of" admitting his "non-speech" mental-health
evidence, the judge essentially ruled that the government experts
could interrogate him on a wide range of topics, including "the
charged criminal conduct." And, the argument goes, by setting
this price, the judge forced him to withdraw his notice, damaging
his mitigation case — which violated his rights both under the
Fifth Amendment and Rule 12.2.
The government counters with several arguments. Among
other things, the government contends — citing Luce v. United
States, 469 U.S. 38 (1984) — that by withdrawing his Rule 12.2
notice and not presenting his mental-health evidence, Dzhokhar
failed to preserve this issue for appeal. Preservation aside, the
government claims that he cannot show that the Fifth Amendment
privilege — which protects against real rather than speculative
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dangers — actually applied here. The judge did not order him to
submit to any mental-health exams, the government notes, and
prosecutors did not comment on his failure to introduce mental-
condition evidence — which makes this situation the direct opposite
of compulsory. Also, the government reminds us, the judge
repeatedly said that he would not necessarily admit the results of
the government experts' exams. And, the argument proceeds, even
if the judge did admit the exam results, prosecutors could only
use them for rebuttal purposes — which the government says is
perfectly permissible under Kansas v. Cheever, 571 U.S. 87, 94, 98
(2013). Additionally, to quote again from the government's brief,
Dzhokhar's mental-health evidence "would have had little or no
mitigating effect," because other evidence rebutted what the
government surmises was his mitigation defense (the government
highlights testimony about his academic achievements, like his
getting mostly A's in middle school).
Pertinently for our purposes, Dzhokhar's reply contests
the government's preservation point. As he sees things, a pair of
Supreme Court cases — Brooks v. Tennessee, 406 U.S. 605 (1972),
and New Jersey v. Portash, 440 U.S. 450 (1979) — allows a defendant
to challenge on appeal obstacles that "'reach[] constitutional
dimensions' without first taking the stand," which he argues is
the situation here.
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Analysis
The parties note that different standards of review may
come into play here: for instance, fresh-eyed review ("de novo,"
in legal parlance) for claims involving the judge's interpretation
of the protections provided by privilege against forced self-
incrimination, see Amato v. United States, 450 F.3d 46, 49 (1st
Cir. 2006), but abuse-of-discretion review for claims about the
exclusion of testimony under Rule 12.2, see United States v.
Cartagena-Carrasquillo, 70 F.3d 706, 710 (1st Cir. 1995), and for
claims concerning the scope of rebuttal testimony, see United
States v. Sebaggala, 256 F.3d 59, 66 (1st Cir. 2001).
Often "[t]he simplest way" to decide an issue is "the
best." See Stor/Gard, Inc. v. Strathmore Ins. Co., 717 F.3d 242,
248 (1st Cir. 2013) (quoting Chambers v. Bowersox, 157 F.3d 560,
564 n.4 (8th Cir. 1998) (R. Arnold, J.)). And that is so here.
Skipping over the parties' preservation points (which
lets us avoid having to work through a complex series of arguments
and cases), we conclude that Dzhokhar's reliance on the Fifth
Amendment privilege fails. To get anywhere, he must show that he
had "reasonable cause to apprehend danger" from submitting to
interviews with the government experts, see Hoffman v. United
States, 341 U.S. 479, 486 (1951) — for as the Supreme Court has
long emphasized, "the privilege protects against real dangers, not
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remote and speculative possibilities," see Zicarelli v. N.J. State
Comm'n of Investigation, 406 U.S. 472, 478 (1972). But the judge
here said over and over again that he would not automatically admit
the results of the government experts' exams, and that even if he
did admit them, prosecutors could use them only for "rebuttal" —
which is copacetic under the Fifth Amendment. See Cheever, 571
U.S. at 94, 98. So no appreciable danger of a Fifth Amendment
violation would have arisen unless (1) Dzhokhar incriminated
himself during the government experts' exams, (2) he still chose
to present mental-health evidence, (3) the judge let a government
expert testify based on Dzhokhar's self-incriminating comments,
and (4) the expert's testimony was not proper rebuttal. To ask us
to find this rank conjecture sufficient (as Dzhokhar does) is
asking too much. See Minor v. United States, 396 U.S. 87, 98
(1969) (explaining that one must show "'real and appreciable' risks
to support a Fifth Amendment claim").
On then to another issue.
Surviving Victims' Testimony
In this section we tackle Dzhokhar's claim that the judge
erred by admitting "victim impact" testimony by survivors at the
penalty phase. As briefed here, his challenge is factually and
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legally intricate. But because there is a straightforward route
to resolving it, we can streamline and simplify our discussion.
The FDPA says that when the government seeks a death
sentence, it must "serve on the defendant[] a notice . . . setting
forth the aggravating factor or factors" it believes justify the
death penalty. 18 U.S.C. § 3593(a). In its notice here,
prosecutors specified several statutory aggravators they
envisioned proving in pursuing the death penalty against Dzhokhar
— including:
 his "knowingly creat[ing] a grave risk of death to 1 or more
persons in addition to" the victims who died, see 18 U.S.C.
§ 3592(c)(5);
 his "committ[ing] the offense in an especially heinous,
cruel, and depraved manner in that it involved serious
physical abuse to the victim," see id. § 3592(c)(6); and
 his "committ[ing] the offense after substantial planning and
premeditation to cause the death of a person and commit an
act of terrorism," see id. § 3592(c)(9).
The notice also listed several nonstatutory aggravators, see id.
§ 3593(a)(2) — including:
 his "target[ing] the Boston Marathon, an iconic event that
draws large crowds of men, women[,] and children to its final
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stretch, making it especially susceptible to the act and
effects of terrorism"; and
 his "participat[ing] in additional uncharged crimes of
violence," like "assault with intent to maim, mayhem[,] and
attempted murder."
Dzhokhar's appellate argument only focuses on the
victim-impact aggravator. And it proceeds in four steps: (1) He
notes (emphasis ours) that § 3593(a)(2) provides that nonstatutory
aggravators
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.
(2) He then says that the reference to the "victim and the victim's
family" precludes penalty-phase testimony on "the impact of
survivors' injuries on those survivors (or their families)
themselves." (3) That is so, he contends, because even though
this FDPA subsection does not define "victim," Congress used
"victim" in three other subsections and in the Act's legislative
history to refer to a "victim" who died.55 And (4) asking us to
55The provisions he cites are: 18 U.S.C. § 3591(a)(2)
(referring to offenses where the defendant "killed the victim,"
offenses that "resulted in the death of the victim," and offenses
where the "victim died"); 18 U.S.C. § 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"); and 18
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apply the usual rule of statutory interpretation that identical
words bear identical meaning throughout the same act, he believes
that such an analysis should lead us to conclude that the judge
misinterpreted the statute to allow "victim impact evidence from
surviving victims at the penalty phase."
If preserved, we review challenges to the judge's
interpretation of the FDPA afresh (i.e., de novo), see United
States v. Troy, 618 F.3d 27, 35 (1st Cir. 2010), and challenges to
his rulings admitting or excluding evidence for abuse of
discretion, see Sampson I, 486 F.3d at 42. Dzhokhar says he
preserved his challenges at trial; the government says he did not
and so must now prove plain error on the judge's part. A famously
demanding standard, plain error requires the proponent to show not
just error, but error that is plain, that affects his substantial
rights, and that seriously impaired the fairness, integrity, or
public perception of the trial. See, e.g., United States v.
Takesian, 945 F.3d 553, 563 (1st Cir. 2019). Because we see no
U.S.C. § 3592(c)(5) (providing for an aggravating factor where the
defendant "created a grave risk of death to 1 or more persons in
addition to the victim of the offense"). The legislative history
he quotes says that the "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." H.R. Doc. No. 102-58, at 166
(1991).
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error in any event, we need not resolve their dispute about the
standard of review.
We can leave the resolution of the interpretive question
about the FDPA for another day, because (as the government notes)
even assuming without granting that Dzhokhar is correct here, the
surviving spectators' testimony had relevance to the jury's
weighing of aggravating factors other than victim impact.56
For organizational convenience, the survivors' testimony
Dzhokhar complains about can be grouped into these categories:
1. "[R]eactions to facing death": Jeffrey Bauman, for example,
described making "peace" with death because he "had a great
life." Roseann Sdoia said she knew she "was bleeding out"
but resolved to "stay calm and stay conscious" because if she
panicked she "would die." And Celeste Corcoran described how
she at first "wanted to die" because she was in so much pain
but realized she needed to "be there" for her family.
2. "[U]ncertainty about what had happened to other family
members": Eric Whalley, for instance, said he and his wife
each thought the other had died. And Stephen Woolfenden said
he was "terrified" when first responders whisked his son away
56 Dzhokhar accepts, as he must, that "surviving victims —
like any other witnesses — may testify at the penalty phase in
support of any properly alleged statutory or non-statutory
aggravating factor relating to the capital charges."
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because he "didn't know if [he] was ever going to see [him]
again."
3. "[F]eelings of helplessness watching their injured child or
partner suffer": Rebekah Gregory, for example, said she could
hear her son calling "mommy" after the blast and felt
"helpless as a mother" because she could not go to him. Lying
there on the pavement, she said a prayer, "God, if this is
it, take me but let me know that Noah is okay." And Jessica
Kensky discussed her frustration at not being able to care
for her husband (one of the bombs left his "foot and part of
his leg . . . completely detached, hanging on kind of by a
thin thread").
4. "[T]he long-term implications of becoming an amputee":
Roseann Sdoia, for instance, said her amputation made it
"extremely difficult" to learn to walk and run again, and to
deal with the snow. Jessica Kensky said becoming a "bilateral
amputee" was "terrifying." She wanted to keep "some memory"
of her legs, to "paint [her] toenails," and to "put [her]
feet in the sand." And the pain from surgeries and treatments
was "[a]bsolutely horrendous," putting her "in a very dark
place" of "really not wanting to live" anymore. And Adrianne
Haslet-Davis said her husband could not attend the trial
because he had checked himself into a mental-health facility.
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Given how low the relevance threshold is, we cannot say
that the judge slipped in finding this evidence at least minimally
relevant to an aggravating factor other than victim impact.
The survivors' reactions to facing death (category 1)
helped show that Dzhokhar "knowingly created a grave risk of death
to 1 or more persons in addition to" the persons who died — a
statutory-aggravating factor. See 18 U.S.C. § 3592(c)(5). That
they felt they might die helps show they actually faced a grave
risk of death. And their specific descriptions of what that felt
like made it more likely that the jury would credit their
statements about being at death's door. Plus their testimony could
help the jury in weighing the grave-risk-of-death factor as part
of its death-penalty decision. See Sampson I, 486 F.3d at 44
(upholding admission of graphic evidence about a murder because it
"would help the jury to determine how much weight it should give"
the aggravating factors). Above and beyond all that, their
testimony could help prove other aggravators — that Dzhokhar
substantially planned "an act of terrorism," a statutory-
aggravator, see 18 U.S.C. § 3592(c)(9); and that he "participated
in additional uncharged crimes of violence" like "assault with
intent to maim, mayhem[,] and attempted murder," a nonstatutory
aggravator.
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The survivors' uncertainty regarding what happened to
their family members (category 2) was relevant to the grave-risk
of-death aggravator. See id. § 3592(c)(5). In most cases, family
members got separated because so many victims were on the verge of
dying that rescuers had to evacuate them as soon as possible. And
the multiple family separations highlighted how "grave" the "risk"
was. The evidence was also relevant to the statutory terrorism
aggravator. It is hard to think of anything more terrifying than
to lose track of one's child or parent in a life-or-death
situation. The evidence was additionally relevant to a
nonstatutory aggravator — that he "targeted the Boston Marathon,"
an event "especially susceptible to the . . . effects of terrorism"
because of its "large crowds of men, women[,] and children."
The survivors' feelings of helplessness as loved ones
suffered (category 3) was relevant for the same reasons. Their
inability to aid their family members after the bombings magnified
the terror that Dzhokhar sought to create.
Finally, the testimony about the long-term implications
of becoming an amputee (category 4) helped establish the statutory
grave-risk-of-death aggravator. The survivors' comments about
surgeries and suicidal thoughts showed that the risk of death
continued past the immediate aftermath of the bombings. And the
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long-term effects of their injuries were directly relevant to the
existence and weight of these factors.
Enough said about the surviving victims' testimony.
Whole Foods Video
We now take up Dzhokhar's challenge to the admission of
a video showing him buying milk at a Whole Foods soon after the
bombings. What he essentially wants us to do is to remand for a
hearing on his claim that agents derived the video from involuntary
statements he made at the hospital after his arrest. Each side
spends much energy debating two principal points. The first is
whether Dzhokhar waived this claim — the government says he did
just that by not moving to suppress the video before trial; while
Dzhokhar says prosecutors made a pretrial promise not to use his
confession, which excuses any untimeliness in his raising the
claim. The second is whether agents discovered the video through
an independent source untainted by any constitutional violations
— the government says a tip from Tamerlan's wife led agents to the
video; while Dzhokhar (noting the government identified her as the
tipster after he had filed his opening brief) says his involuntary
statements (not his sister-in-law's tip) steered the agents to the
video. But because Dzhokhar is getting another penalty-phase
trial, the parties and the judge should address these matters —
e.g., was the source for the video genuinely independent of his
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hospital confession, and if not, was the confession voluntary? —
if the government again opts to offer the video into evidence and
Dzhokhar objects.
An Expert's Testimony About ISIS
and the Prosecution's Use of an Islamic Song and a
Photo of Dzhokhar Raising His Middle Finger
In the next section of his opening brief, Dzhokhar raises
three claims. He first knocks the judge for wrongly admitting (in
the guilt phase) expert testimony on ISIS (the popular acronym for
the Islamic State of Iraq and Syria). He then accuses the
prosecutor of committing misconduct by juxtaposing (in the guilt-
phase closing) a photo slideshow of the post-bombing carnage with
a recording of an Islamic song found on a computer in Tamerlan's
home that Dzhokhar used to surf the internet. And he lastly
accuses another prosecutor of committing misconduct by displaying
(in the penalty-phase opening) posters of the four murder victims
beside a photo of him raising his middle finger at a cell-block
security camera.
Background
Before trial, the defense had moved to exclude any expert
testimony "about terrorist leaders and attacks in which [Dzhokhar]
was not involved" unless the government could show that he knew of
the materials under discussion and "endorsed" or "absorbed" them.
The judge did not rule on the motion until just before the
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prosecution called Dr. Matthew Levitt as an expert witness on
international terrorism during the guilt phase. Recognizing that
Federal Rule of Evidence "403 is an important consideration," and
cautioning the government not to "step too far on this," the judge
denied the motion, saying that Levitt could "testify about the
history of recent terrorist activity, particularly the
encouragement of jihadi actions by particular prominent figures."
The government, for its part, promised to be "very sensitive" to
the defense's concerns.
Levitt talked to the jury about the "global jihad
movement." What drove this movement, he said, was not a formal
organizational structure but a decades-old "idea" 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." The
movement's ideology, he added, permitted the killing of innocents
and focused its wrath on the United States. And, he further
explained, calling on followers to conduct independent terrorist
attacks "at home" had "become a major theme of radical propaganda."
Levitt noted that this was true not only of "al-Qaeda"
but "now [also] the so-called Islamic state or ISIS." The defense
objected to "bringing in" ISIS. But the judge ruled the testimony
admissible "[a]s . . . general background." Levitt then said that
"ISIS" — which both fought and cooperated with al-Qaeda — "is the
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latest incarnation of this global jihad movement." And he
explained that "ISIS, like al-Qaeda, has glossy magazines" and
"very impressive online radical and radicalization literature"
that tells supporters they "don't have to come" to a foreign
battlefield — "just do something back home."
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." He then said
that the "Syrian conflict" — which started "four years" before in
2011 — had also "become a rallying cry around the world." The
defense objected "to the whole discussion of Syria that goes beyond
the date of any of the events alleged in the indictment" — to which
the judge said, "Overruled." Levitt then 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."
We fast-forward to the prosecution's guilt-phase closing
arguments. There, the prosecutor argued that the Tsarnaev brothers
had been "radicalized to believe that jihad was the solution to
their problems." He reviewed the evidence of Dzhokhar's radical
beliefs — which included Dzhokhar's boat manifesto, plus his
"library" of jihadist videos, writings, and "nasheeds" (Islamic
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chants) that Dzhokhar watched, read, and listened to on his
computer and other devices. He noted that after the Tsarnaev
brothers carjacked Dun Meng, they "went back to Watertown" to get
"a CD containing those jihad nasheeds on it" for some "portable
inspiration" as they continued their escape. He also noted that
Dzhokhar had created a twitter account with the display name
"Ghuraba" — an Islamic word that means "stranger."
Later in his guilt-phase closing, the prosecutor said
that Dzhokhar had "murdered four people" and "wounded hundreds" to
"make a statement" and to "be a terrorist hero." "This is how
[Dzhokhar] saw his crimes," the prosecutor stated while displaying
a PowerPoint presentation. The presentation combined photos with
the audio of a nasheed. Involving a singer chanting "Ghuraba"
repeatedly, the nasheed played over a slide of bombmaking
instructions (from Inspire, al-Qaeda's English-language magazine),
a photo of Dzhokhar seated in front of a black flag with Arabic
script, and three images of severely wounded victims in the
aftermath of the bombings. The nasheed played for about 19
seconds. After the chanting stopped, the prosecutor said that
"this is the cold reality of what his crimes left behind." And
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then he showed additional slides of the bombings' aftermath in
silence.
Calling the prosecutor's playing "this haunting music
over the [photos]" a bid to "inflame religious or ethnic
prejudice," the defense moved for a mistrial after the guilt-phase
summations and before the jury began deliberating (the defense did
not object during the closing, probably to not draw undue attention
to the presentation). The government responded that both the audio
file and the photos were in evidence and that the slideshow
provided "perspective" on Dzhokhar's "state of mind, his
radicalization." The judge denied the defense's motion, adopting
"the government's radicalization position."
We now skip ahead to the prosecution's penalty-phase
opening statement. There, the prosecutor displayed on easels 3-
foot by 4-foot photos of Lingzi Lu, Krystle Campbell, Sean Collier,
and Martin Richard. A fifth easel in the middle had a black cloth
covering it. Near the end of her 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. [He] was alone. There was no
brother with him. And once more, just as he had done
with the boat [in Watertown], he had one more message to
send.
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The prosecutor then pulled the black cloth off the middle easel,
revealing a 3-foot by 4-foot photo of Dzhokhar in his cell
thrusting his middle finger at a surveillance camera. Concluding,
the prosecutor remarked:
This is Dzhokhar Tsarnaev, unconcerned, unrepentant, and
unchanged. Without remorse, he remains untouched by the
grief and the loss that he caused. And without
assistance, he remains the unrepentant killer that he
is. It is because of who [he] is that the United States
will return and ask you to find that the just and
appropriate sentence for [him] is death.
After the opening statement, a lawyer for Dzhokhar noted
as a "point of record-keeping" that the prosecution had "displayed
the cell block photograph" during its opening. Counsel claimed
"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 touching photographs of the
victims in life." The judge did not comment on the issue.
Basic Appellate Arguments
Dzhokhar calls Levitt's ISIS testimony both "irrelevant
and prejudicial," noting that the group (which he had no ties to)
"was well known for its barbarism at the time of his trial, but
unknown — indeed, hardly existent — at the time of his crimes."
He labels the prosecution's audiovisual presentation misconduct.
According to him, by "pairing religiously evocative images and
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gruesome photographs of the bombings, and overlaying both with an
Arabic chant," the prosecution "played to commonly held biases
against Muslims: that they are foreign, frightening, and violence-
prone." And he alleges an instance of misconduct in the
prosecution's extracting the image of him "raising his middle
finger at a cellblock camera, juxtapos[ing] it with photographs of
the four decedents in the case, and then [telling] the jurors" —
"with no factual basis" — "that this obscene gesture was [his]
'message' to his victims." All of which, his theory runs, shows
the jury voted for death under the influence of "[p]assion and
[p]rejudice."
Taking the opposite view, the government argues that
Levitt's testimony was more pertinent than prejudicial, because
his comments helped the jurors see how the global jihad movement
inspires home-grown militants to commit "independent terrorist
attacks" — comments he delivered briefly and in an academic tone.
The government also defends the propriety of the PowerPoint
presentation, saying the playing of "a 19-second audio clip of a
nasheed . . . over photos of [Dzhokhar] and the bombing's
aftermath" were "tied specifically to the trial evidence regarding
[his] inspiration for the bombing." And the government sees no
prosecutorial misconduct regarding the middle-finger poster,
because — contrary to the defense's representation — the prosecutor
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did not "say [Dzhokhar's] middle finger was a message 'to his
victims'" but instead only said that his "gesture was intended to
send the same 'message' that he had written in a boat before his
arrest, when he wrote that the bombings were a 'message' to the
United States Government."
Analysis
Taking first things first, we consider Levitt's guilt-
phase testimony. Preserved relevance and prejudice claims, like
these ones, prompt "abuse-of-discretion review — a famously-
deferential standard that requires a challenger to show that no
rational person could accept the judge's decision." See United
States v. Rodríguez-Soler, 773 F.3d 289, 293 (1st Cir. 2014). But
even deference has limits. See United States v. Ayala-García, 574
F.3d 5, 18 (1st Cir. 2009). And our deference reaches its limit
here.
The relevance of Levitt's ISIS testimony is hard to see.
For example, we do not understand how the actions of a group that
did not meaningfully exist before Dzhokhar's crime could have made
any fact of consequence more likely (the government admits that
the threat posed by ISIS was generally "after the Boston Marathon
attacks"). See United States v. Kilmartin, 944 F.3d 315, 335 (1st
Cir. 2019) (emphasizing that "[e]vidence is relevant as long as it
has some tendency to make a fact of consequence more or less
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probable"). And calling the evidence "background," as the judge
did, does not move the needle. Again, because ISIS barely existed
at the time of the bombings, Levitt's testimony could not have
provided "background" or "stich[ed] together an appropriate
context in which the jury could assess the evidence introduced
during the trial." See United States v. McKeeve, 131 F.3d 1, 13
(1st Cir. 1997). And by falsely linking Dzhokhar to this
infamously brutal group, the unfair prejudicial effect of Levitt's
ISIS comments far outweighed any probative value that it had.
But what saves the government is that this error is
harmless beyond a reasonable doubt. See 18 U.S.C. § 3595(c)(2)
(explaining that a circuit court cannot reverse or vacate a federal
death sentence if the error is harmless beyond a reasonable doubt).
Running about two transcript pages, the contested testimony was
briefly given and tonally academic. Plus an overwhelming amount
of other evidence showed that Dzhokhar drew inspiration from
radical Islamic propaganda, including from articles in a magazine
published by al-Qaeda (Inspire) and from lectures given by an Imam
connected to al-Qaeda. So any suggestion during the guilt phase
that he got inspiration from another radical Islamic group (ISIS)
would not have affected the jury's sentencing verdict. Moreover,
the jurors unanimously found the existence of several statutory
intent factors, statutory aggravating factors, and nonstatutory
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aggravating factors supported the death penalty. And Dzhokhar
does not challenge the evidentiary support for any of them. And
given the overwhelming force of these factors — driving home the
devastating effects of Dzhokhar's actions — we find beyond a
reasonable doubt that the jury would have imposed death even if
the judge had excluded the ISIS testimony. See generally Jones,
527 U.S. at 404-05 (noting that a reviewing court doing a harmless-
error check of a death sentence can consider whether "the jury
would have reached the same conclusion" absent the error).
Turning to the prosecutorial-misconduct claims, we note
that we review preserved claims de novo (that is, without giving
the district judge's decision any weight), and unpreserved claims
for plain error. See, e.g., United States v. Sepúlveda-Hernández,
752 F.3d 22, 31 (1st Cir. 2014). The parties dispute whether
Dzhokhar preserved all of his claims. But the dispute is academic,
because any error also fails on harmless-error review.
When faced with a prosecutorial-misconduct allegation,
we first look to see if the prosecutors acted improperly. See,
e.g., United States v. Veloz, 948 F.3d 418, 435 (1st Cir. 2020).
If they did, we then see if their misconduct "so poisoned the well
that the trial's outcome was likely affected," id. (quoting French,
904 F.3d at 124) — "weigh[ing] factors such as the severity of the
misconduct, the context in which it occurred, the presence or
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absence of curative instructions, and the strength of the
evidence," United States v. Walker-Couvertier, 860 F.3d 1, 10 (1st
Cir. 2017). Ultimately, reversal is justified "only where there
would be a miscarriage of justice or where the evidence
preponderates heavily against the verdict." United States v.
Rodríguez-De Jesús, 202 F.3d 482, 486 (1st Cir. 2000) (quoting
United States v. Gonzalez-Gonzalez, 136 F.3d 6, 12 (1st Cir.
1998)).
Both sides have strong arguments. As for the audiovisual
presentation, Dzhokhar correctly says that prosecutors offered no
proof that the nasheed used had any significance to him (let alone
that he ever played it or that it had any connection to the crimes
themselves), and they never played that nasheed during the trial.
And the government correctly notes that the presentation consisted
of photos and an accompanying audio file that the judge had
admitted into evidence. Dzhokhar calls the presentation — scored
with a "foreign-sounding soundtrack" — too emotional or
frightening, intended not to inform but "to stoke religious bias."
To this the government replies — with quotes from United States v.
Mehanna, 735 F.3d 32, 64 (1st Cir. 2013) (quotation marks omitted)
— that "terrorism-related evidence is often emotionally charged,"
even "alarming" and "blood curdling," yet "much of this emotional
overlay is directly related to the nature of the [terrorist]
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crimes." And, the government suggests, if that is true of Mehanna,
where the defendant committed no violent acts, it is all the more
reasonable to expect emotionally charged evidence and argument
here, where Dzhokhar partook in terrorist attacks that killed four
and grievously injured hundreds of others.
Rather than resolving this close question, we assume
error — though the error did not irreversibly poison the well. As
per usual, the judge told the jurors that counsel's arguments are
not evidence. And as required by the FDPA, see 18 U.S.C. § 3593(f),
the judge told them they could not consider Dzhokhar's religious
beliefs or national origin in deciding whether to recommend death.
Also as required by the FDPA, they specifically certified in the
penalty-verdict form that "consideration of the . . . religious
beliefs" or "national origin . . . of Dzhokhar . . . was not
involved in reaching" their decision. Last but not least, in the
context of this case — with the overwhelming evidence of Dzhokhar's
devotion to radical jihadist ideology and with his guilt
unquestioned — the jury's penalty-phase verdict was not likely
affected by 19 seconds of music played weeks earlier during the
guilt phase.
Sounding a familiar refrain, we note that each party
makes good points on the next issue too. Dzhokhar insists that by
displaying the image of his middle-finger salute alongside photos
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of those who had died, the prosecutor fueled the jurors' passions
by saying — without any factual support — that this was his
"message" to the murder victims. The government insists that the
prosecutor never said that he was flipping off his victims —
rather, she said that what he did was meant to convey the same
"message" as his "boat" manifesto: that a religious duty to wage
jihad against the United States justified his actions. And the
government reminds us that courts do not lightly infer that a
prosecutor intends an "ambiguous remark" to carry its most harmful
meaning. Not leaving that claim unanswered, Dzhokhar says that
given how the prosecutor displayed the photos, "[t]he inference
that these images were related to one another is not only the most
damaging meaning, but also the most obvious."
Yet even if the government is wrong and Dzhokhar is
right, he cannot win. The evidence overwhelmingly showed his
disdain for his victims. Far from simply gesturing at them, he
set off a bomb designed to kill them by sending pieces of metal
tearing through their bodies. And after doing this, he later
tweeted that he was "a stress free kind of guy." So even if the
jurors understood the prosecutor as saying that Dzhokhar directed
his middle-finger salute at his victims, the prejudice from that
inference would pale when compared with evidence of his violently
and intentionally killing them — without showing any remorse.
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Even though the government won the prosecutorial-
misconduct challenges on harmless error, we suggest that
prosecutors not to repeat these tactics on remand. And by tactics
we mean the prosecution's (a) showing the jury a photo slideshow
of the post-bombing carnage scored with a nasheed that had zero
connection to the crime itself; and (b) displaying a poster-sized
photo of Dzhokhar sticking out his middle finger placed between
the same-sized photos of the decedents, thereby implying his
gesture constituted his "message" to the victims — even though no
evidence showed he in fact directed his gesture toward the victims.
Penalty-Phase Jury Instructions
About Weighing Aggravating and Mitigating Factors
We turn our attention to Dzhokhar's suggestion that the
judge stumbled by not telling the jurors that to recommend death
they had to find beyond a reasonable doubt that the aggravating
factors outweighed any mitigating ones.
Background
To place the matter into proper perspective (and to save
the reader from having to flip back to a footnote many pages ago),
we highlight certain aspects of how capital sentencing works. For
a defendant to get a death sentence under the FDPA, the jurors
must make several penalty-phase determinations — including: they
must find unanimously and beyond a reasonable doubt that he acted
with the statutorily required intent, see 18 U.S.C. § 3591(a)(2);
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they must find unanimously and beyond a reasonable doubt that at
least one statutory aggravator is present, see id. § 3593(e)(2);
see also id. § 3592(c); and they must find unanimously that the
aggravators (statutory and nonstatutory) sufficiently outweigh any
mitigators, see id. § 3593(e).
Before the penalty-phase deliberations started, the
defense asked the judge to tell the jurors that they could only
call for Dzhokhar's death if they found the aggravators outweighed
any mitigators "beyond a reasonable doubt." Without hearing any
argument, the judge said that "Circuit law" precluded him from
giving an instruction like that. The judge probably had in mind
Sampson I — a case holding that because "the requisite weighing
constitutes a process, not a fact to be found," a jury need not
make the weighing determination beyond a reasonable doubt. See
486 F.3d at 32.
Basic Appellate Arguments
The Supreme Court tells us "that only a jury, and not a
judge, may find [beyond a reasonable doubt] facts that increase a
maximum penalty, except for the simple fact of a prior conviction."
See Mathis v. United States, 136 S. Ct. 2243, 2252 (2016) (citing
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). Dzhokhar says
that the weighing determination is a "fact[]" that ups a
defendant's "maximum possible punishment from life to death." So
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he argues that the judge erred by not telling the jurors that they
had to find the aggravators outweighed the mitigators under the
reasonable-doubt standard. He admits that Sampson I forecloses
his claim. But he thinks that the Supreme Court "abrogated"
Sampson I in Hurst v. Florida, 136 S. Ct. 616 (2016).
The government disagrees. Sampson I, the government
says, is still good law because nothing in Hurst weakens Sampson
I's holding that the "outweighs" decision — coming into play only
after the jurors find the defendant death-eligible beyond a
reasonable doubt — is not a fact determination, but a moral one
about what is just.
Analysis
Dzhokhar's claim rises or falls on the notion that Hurst
requires that jurors make the weighing determination beyond a
reasonable doubt. Using our independent (or de novo) judgment,
see Sampson I, 486 F.3d at 29, we think his argument must fall.
Hurst invalidated Florida's capital-sentencing scheme.
See 136 S. Ct. at 619-20. Under that scheme, "the maximum sentence
a capital felon" could get based on "the [jury] conviction alone
[was] life imprisonment." Id. at 620. He could get a death
sentence only if the judge later determined that (1) "sufficient
aggravating circumstances exist" and that (2) "there are
insufficient mitigating circumstances to outweigh the aggravating
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circumstances." Id. at 620, 622 (quotation marks omitted). Hurst
said that determination (1) — that sufficient aggravators exist —
violated the defendant's constitutional right to a jury trial,
because it "impermissibly allowed 'a sentencing judge to find an
aggravating circumstance, independent of a jury's factfinding,
that is necessary for imposition of the death penalty.'" McKinney,
140 S. Ct. at 707 (quoting Hurst, 136 S. Ct. at 624). But
importantly here, Hurst made no holding regarding determination
(2) — that the mitigators do not outweigh the aggravators. See
136 S. Ct. at 624 (summarizing the case as holding that Florida's
sentencing procedure, "which required the judge alone to find the
existence of an aggravating circumstance, is . . .
unconstitutional" (emphasis added)).
About a week after Hurst came out, the Supreme Court
issued Kansas v. Carr. Carr held that the Constitution does not
"require[] capital-sentencing courts . . . to affirmatively inform
the jury that mitigating circumstances need not be proven beyond
a reasonable doubt." See 136 S. Ct. 633, 642 (2016) (quotation
marks omitted). In doing so, Carr
doubt[ed] whether it is even possible to apply a standard
of proof to the mitigating-factor determination . . . .
Whether mitigation exists . . . is largely a judgment
call (or perhaps a value call); what one juror might
consider mitigating another might not.
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Id. And then Carr emphasized the discretionary nature of the
weighing process, saying
the ultimate question whether mitigating circumstances
outweigh aggravating circumstances is mostly a question
of mercy — the quality of which, as we know, is not
strained. It would mean nothing, we think, to tell the
jury that the defendants must deserve mercy beyond a
reasonable doubt; or must more-likely-than-not deserve
it.
Id. (emphasis added).57
Carr causes problems for Dzhokhar in two ways. One, if
the Supreme Court in Hurst intended to impose the reasonable-doubt
standard on the weighing process — as Dzhokhar argues — the Court
in Carr would not have said days later that telling the jury to
use that standard "would mean nothing." And two, Carr's "mercy"
talk supports Sampson I's statement that "[t]he outcome of the
weighing process is not an objective truth that is susceptible to
(further) proof by either party." See 486 F.3d at 32.
Now consider McKinney v. Arizona, a Supreme Court
opinion from this year. McKinney held that while cases like Hurst
require a jury to "find the aggravating circumstance that makes
57Dzhokhar calls this passage "dicta" that we can disregard.
But Supreme Court dicta are different from other judicial dicta,
because "we 'are bound by the Supreme Court's considered dicta
almost as firmly as by the Court's outright holdings.'" See
LaPierre v. City of Lawrence, 819 F.3d 558, 563-64 (1st Cir. 2016)
(quoting Cuevas v. United States, 778 F.3d 267, 272-73 (1st Cir.
2015)).
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the defendant death eligible," they "did not require jury weighing
of aggravating and mitigating circumstances." See 140 S. Ct. at
707-08 (holding that an appellate court can reweigh aggravators
and mitigators if the judge failed to properly consider a
mitigator). So McKinney helps sink Dzhokhar's claim that Hurst
requires the jury to make the weighing determination beyond a
reasonable doubt — a view we hold because McKinney makes crystal
clear Hurst addressed only the finding of aggravating facts and
had nothing to do with the weighing process.
The bottom line of this discussion is that our Sampson
I opinion — holding that the reasonable-doubt standard does not
apply to the weighing process — remains good law.58
Penalty-Phase Jury Instructions
About Jury Deadlock
Dzhokhar makes a second claim of instructional error:
that the judge botched the proceedings by not telling the jurors
that failure to reach a unanimous recommendation on the death
58Dzhokhar takes another dig at Sampson I, arguing that
Sampson I "failed to take account of" United States v. Gaudin, 515
U.S. 506 (1995). Gaudin held that a jury must decide whether a
criminal defendant "is guilty of every element of the crime with
which he is charged, beyond a reasonable doubt." Id. at 510. And
Gaudin further held that materiality, as an element of a false-
statement crime under 18 U.S.C. § 1001, is a mixed question of law
and fact for the jury to resolve. Id. at 511-12, 522. But nowhere
did Gaudin suggest that the weighing determination is an element
or fact that a jury must find applying a reasonable-doubt standard.
So Gaudin does not help Dzhokhar.
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penalty would result in his imposing a life sentence without the
possibility of release.
Background
As a matter of helpful repetition, we emphasize again
that jurors in a federal capital case cannot recommend that a
defendant die unless (as relevant here) they unanimously find
beyond a reasonable doubt a requisite intent factor and an
aggravating circumstance, and then unanimously find that all the
aggravators outweigh any mitigators to justify his getting death.
See Jones, 527 U.S. at 376-77 (reviewing the FDPA). And if they
cannot make a unanimous recommendation, the judge steps in and can
impose either a life sentence without release or any lesser
sentence allowed by law. See id. at 380-81. The parties concur
that jury deadlock on any of these prerequisites here would have
resulted in a sentence of life without release.
With this understanding in place, we return to the
particulars of Dzhokhar's case — right before the penalty-phase
deliberations. The defense asked the judge to tell the jurors
that he would impose a sentence of life without release if, after
weighing the aggravating and mitigating circumstances, they could
not unanimously agree on a sentencing recommendation. The proposed
instruction read:
If the jury is unable to reach a unanimous decision in
favor of either a death sentence or of a life sentence,
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I will impose a sentence of life imprisonment without
possibility of release upon the defendant. That will
conclude the case. At this sentencing stage of the case,
the inability of the jury to agree on the sentence to be
imposed does not require that any part of the case be
retried. It also does not affect the guilty verdicts
that you have previously rendered.
The defense conceded that the Supreme Court's Jones
decision "authorize[d] district courts" to refuse to give such an
instruction. See 527 U.S. at 381 (holding that judges are not
required to instruct sentencing juries on the consequences of a
deadlock in the weighing process). But the defense claimed that
without it, the jury might "wrongly assume that a failure to agree
on sentence would require the case to be retried before a new
jury." And this mistaken belief, the defense added, would
"coerc[e]" some jurors into accepting a death verdict to avoid
having to "put the victims and the survivors and the entire
community through this entire case again."
The judge rejected the defense's request, saying that
the suggested instruction could "undercut[]" the "process
anticipated by" the FDPA by essentially empowering "one juror" to
"simply decid[e] that the decision was his or hers" without
sufficiently engaging in the deliberative process. But the judge
explained that he would address the defense's coercion concerns by
giving "a very strong instruction" that "each individual juror is
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to give his or her own [verdict] and not agree just to agree with
others."
After the parties presented their penalty-phase
evidence, the judge told the jurors that they had to decide —
unanimously and beyond a reasonable doubt — whether the government
established the existence of one of the "gateway" mental-intent
factors (which we will later discuss) and one of the statutory
aggravating factors. The judge noted that if they could not so
agree, he then would sentence Dzhokhar to life imprisonment without
release. But the judge said that if they could so agree, they
then had to consider whether the aggravators outweighed any
mitigators to justify a death sentence. And if, after the weighing
process, they unanimously found that death or life without release
was the proper sentence, the judge stated that they should mark
the corresponding part of the verdict form.
The judge did not instruct the jurors about what would
happen if they deadlocked in making a sentencing recommendation.
But he did tell them that "[b]efore 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." And he emphasized
that "[a]ny one of you is free to decide that a death sentence
should not be imposed," that "[e]ach juror must individually
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decide" whether to recommend death, and that "no juror is ever
required to impose a sentence of death."
The defense later objected to the judge's "refusal" to
instruct the jurors about what would occur if they deadlocked on
the penalty recommendation.
Basic Appellate Arguments
Dzhokhar criticizes the judge for not telling the jurors
that if they could not unanimously agree on whether to recommend
death, then he (Dzhokhar) would automatically get life without
release. He thinks this because to him the jurors likely drew a
"negative inference" from the instructions at earlier stages —
i.e., that because the judge said that deadlock at the intent and
aggravator stages would result in an automatic life sentence
without release, his not saying anything about deadlock at the
weighing stage would cause them to infer that the "failure to reach
unanimity" there "would yield a result other than a mandatory life
sentence." And, still repeating arguments made below, this
"omission[]" (to quote again from his brief) "created an
intolerable risk of coercing holdout jurors for life to acquiesce
in a death verdict in order to spare the victims' families, the
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survivors, and the Boston community the significant financial and
emotional strain" of a second penalty-phase "trial."
The government takes a diametrically opposed position.
It says that the judge's decision not to instruct about the effect
of a deadlock on the sentence decision squares with the Supreme
Court's Jones opinion. It also says that Dzhokhar's argument about
the jurors drawing a negative inference "is speculative at best"
and so cannot undermine the judge's ruling.
Analysis
The parties disagree about what standard of review
applies to this claim. We review anew (de novo, as the cases say)
preserved claims that the jury instructions mislead the jurors,
"taking into account the charge as a whole and the body of evidence
presented at trial." Sampson I, 486 F.3d at 29. Dzhokhar believes
he said enough below to preserve his arguments. The government
believes differently. But we assume without deciding that Dzhokhar
is correct because he loses here under either standard.
Jones lights the path to decision. Construing § 3594 of
the FDPA, Jones held that if the jury fails to reach a unanimous
verdict on punishment for a capital crime, the judge must enter a
sentence other than death — so there is no mistrial or second
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penalty-phase proceeding.59 See 527 U.S. at 380-81. Jones also
held that a judge need not tell the jurors about the consequences
of deadlock at that stage. See 527 U.S. at 381, 384. "[I]n a
capital sentencing proceeding," Jones 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.'" Id.
at 382 (quoting Lowenfield v. Phelps, 484 U.S. 231, 238 (1988)).
And telling the jurors about the consequences of nonunanimity,
Jones said, could undermine those vital interests because it might
amount to "an open invitation for the jury to avoid its
responsibility and to disagree." Id. at 383-84 (quoting Justus v.
Virginia, 266 S.E.2d 87, 92 (Va. 1980)). Jones also stressed that
if a defendant thinks the judge's charge "caused jury confusion,"
he must show "a reasonable likelihood that the jury has applied
59 Section 3594 says:
Upon a recommendation under section 3593(e) that the
defendant should be sentenced to death or life
imprisonment without possibility of release, the court
shall sentence the defendant accordingly. Otherwise,
the court shall impose any lesser sentence that is
authorized by law. Notwithstanding any other law, if
the maximum term of imprisonment for the offense is life
imprisonment, the court may impose a sentence of life
imprisonment without possibility of release.
18 U.S.C. § 3594.
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the challenged instruction[s]" in a legally flawed way. Id. at
390 (quoting Estelle v. McGuire, 502 U.S. 62, 72 (1991)).
Dzhokhar has not shown a reasonable likelihood that the
jury applied the instructions incorrectly. Our reasons for so
concluding are threefold.
In the first place, the judge's instructions that he
would sentence Dzhokhar to life without release if the jury
deadlocked at the intent-and-aggravator-factor stages passed legal
muster. See Jones, 527 U.S. at 380-81. So too did the judge's
decision not to instruct on the effect of their deadlocking on the
sentence decision. See id. at 381-84. Devastating to his claim,
Dzhokhar cites no precedent holding that if the judge instructs on
the effect of an impasse at one stage, he must also do so at every
other stage.
In the second place, Dzhokhar's negative-inference
theory — the omission of a consequences-of-deadlock instruction at
the weighing stage signaled to the jury that a deadlock there would
lead to a mistrial and a new penalty phase — rests on nothing but
speculation. See Carr, 136 S. Ct. at 643 (stressing that "[a]
meager 'possibility' of confusion is not enough" (quoting Boyde v.
California, 494 U.S. 370, 380 (1990))). We doubt that the jurors
recognized the inconsistency that his lawyers see, particularly
since "[j]urors do not sit in solitary isolation booths parsing
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instructions for subtle shades of meaning in the same way that
lawyers might." See Brown v. Payton, 544 U.S. 133, 143 (2005)
(quoting Boyde, 494 U.S. at 380-81). But even indulging his
speculative inference drawing, we think that the jurors were at
least as likely to conclude that the effect of a deadlock at the
weighing stage would be the same as at the earlier stage — i.e.,
that the judge would hand down a sentence of life without release.
And even assuming the jurors wanted to avoid a new penalty phase,
we believe the instructions could just as easily have caused them
to compromise by choosing to recommend life without release.
Anyhow, their verdict shows they did not feel compelled to return
a death verdict, given how they recommended life on 11 of the 17
death-eligible counts.
Also hurting Dzhokhar is that Jones rejected a similar
negative-inference claim. The Jones defendant claimed that an
alleged ambiguity in the instructions might have caused the jury
to think that if it failed to reach unanimity on the sentencing
issue, the judge might give him a term less severe than life
without release. 572 U.S. at 387. But Jones rebuffed this
negative-implication argument, holding that the defendant had
"parse[d]" the instructions "too finely" and that — after
considering the instructions as a whole — the inferences he relied
- 149 -
on did not "create a reasonable likelihood" of confusion over the
deadlock's effect. Id. at 391-92.
In the third place and finally, Dzhokhar cites no
authority holding that an instruction that is constitutionally
permissible can become unconstitutionally coercive by ambiguous
negative inferences drawn from other instructions. That is
probably because the caselaw is against him. For Jones holds "that
instructions that might be ambiguous in the abstract can be cured
when read in conjunction with other instructions." Id. at 391.
And reviewing the instructions holistically — instructions that
stressed that "[a]ny [juror] is free to decide that a death
sentence should not be imposed," that "[e]ach juror must
individually decide" whether to recommend death, and that "no juror
is ever required to impose a sentence of death" (which we presume
they obeyed, see Marsh, 481 U.S. at 206) — we see no basis for
Dzhokhar's conjecture that any juror was coerced into voting for
a death sentence to avoid causing a mistrial.
Ex-Parte Communications
Up for review here is Dzhokhar's claim that a "secret
channel of communication" existed between prosecutors and the
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judge — "repeated private access" that violated his constitutional
rights to due process and effective assistance of counsel.
Background
During Dzhokhar's prosecution, the government filed a
number of documents ex parte. And the judge held a number of ex-
parte conferences with the government. All of this resulted in 26
ex-parte docket entries, involving 4 court orders, 16 government
motions or notices, and 6 ex-parte conferences.
As Dzhokhar's appeal moved along, the government (with
the judge's approval) voluntarily disclosed 13 of the ex-parte
filings to the defense. After some motion practice, the government
disclosed a lightly-redacted transcript of an ex-parte conference
on the Waltham evidence. So 12 ex-parte items remain undisclosed.
Basic Appellate Arguments
The nub of Dzhokhar's argument is that the judge's "back-
channel talks" with the government robbed him of his "Fifth
Amendment right to due process and his Sixth Amendment right to
the assistance of counsel." Quoting a decision from us, he points
out that
not only is it a gross breach of the appearance of
justice when the defendant's principal adversary is
given private access to the ear of the court, it is a
dangerous procedure [because it invites the question
whether] "[t]he firmness of the court's belief [in the
prosecutor's position] may well have been due not only
to the fact that the prosecutor got in his pitch first,
- 151 -
but, even more insidiously, to the very relationship
. . . that permitted such [ex parte] disclosures."
See Haller v. Robbins, 409 F.2d 857, 859-60 (1st Cir. 1969). And
he notes that the constitutional right to counsel applies to all
critical stages of the prosecution. See Lafler v. Cooper, 566
U.S. 156, 165 (2012) (underscoring that this "constitutional
guarantee applies to pretrial critical stages that are part of the
whole course of a criminal proceeding, a proceeding in which
defendants cannot be presumed to make critical decisions without
counsel's advice").
Seeing no violations, the government insists that the
in-camera procedures helped the judge "to independently assess
whether the materials were discoverable" — and because they "were
not" discoverable, Dzhokhar had "no right to obtain them." As
support, the government stresses that a judge's ex-parte, in-
camera review of documents may be authorized under the Classified
Information Procedures Act and Criminal Rule 16(d)(1). See United
States v. Pringle, 751 F.2d 419, 426-28 (1st Cir. 1984).60 And
"[E]nacted to limit the practice of criminal defendants
60
threatening to disclose classified information . . . to force the
government to dismiss the charges," the Classified Information
Procedures Act (among other things) lists a series of rules for
preserving confidentiality of classified information and for
allowing discrete use of such information. See Dhiab v. Trump,
852 F.3d 1087, 1092 n.9 (D.C. Cir. 2017). That Act defines
"[c]lassified information," in relevant part, as "any information
or material that has been determined by the United States
Government pursuant to an Executive order, statute, or regulation,
- 152 -
quoting one of our cases, the government adds that the
"requirements of confidentiality [can] outweigh the interest in
adversarial litigation and permit a court to rule on an issue in
camera and without the participation of an interested party." See
United States v. Innamorati, 996 F.2d 456, 487 (1st Cir. 1993).
Analysis
The interests on each side of this controversy are
profound. And both parties have points in their favor. But
reviewing Dzhokhar's legal challenge de novo, see United States v.
Lustyik, 833 F.3d 1263, 1267 (10th Cir. 2016) — i.e., without
giving the judge's take any special weight — we side with the
government.
A criminal defendant's right to an adversary proceeding
is central to our system of justice. See, e.g., Innamorati, 996
F.2d at 487. That right includes the right to have counsel at all
critical stages of the criminal process. See, e.g., United States
v. Cronic, 466 U.S. 648, 654, 659 (1984). But the law permits
some exceptions to this norm. See, e.g., Innamorati, 996 F.2d at
487. In exceedingly "rare situations" a judge may act in camera
to require protection against unauthorized disclosure for reasons
of national security." 18 U.S.C. app. 3 § 1(a). And Criminal
Rule 16(d)(1) provides that "[t]he 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."
- 153 -
and with the benefit of only the prosecution's views, like when
there is a need to stop disclosure of sensitive information — for
example (and without limitation), material that could damage
national security, see id., compromise an in-progress criminal
inquiry, see Puerto Rico, 490 F.3d at 64, or fall outside the rule
of Brady v. Maryland, see United States v. Claudio, 44 F.3d 10, 14
(1st Cir. 1995).61 And because the point is so powerful and cannot
be made enough, we repeat what we said in Innamorati:
Outside of emergencies, . . . the ex parte submission of
information from a party to the court and the court's
ruling on that information without notice to or
participation of the opposing party is fundamentally at
odds with our traditions of jurisprudence . . . and can
be justified only in the most extraordinary
circumstances.
996 F.2d at 487.
The "burden of justification" here is on the government.
See Claudio, 44 F.3d at 14. And it is a burden the government has
carried.
The government notes that aside from a few documents on
a restitution issue (which the judge never ruled on), all of the
remaining ex-parte items involve "either classified or otherwise
sensitive material" that prosecutors gave the judge for an in-
61Generally speaking (and as noted earlier), Brady requires
the prosecution to give the accused information that is both
favorable and material to guilt or punishment. See 373 U.S. at
87.
- 154 -
camera review to see if "the material should be protected from
disclosure or should instead be produced to the defense."62 Asking
us to take his side, Dzhokhar zeroes in on an ex-parte proceeding
held after the defense filed a motion challenging the prosecution's
proposed trial exhibits. With the benefit of only the government's
presentation, the judge there offered some suggestions about how
the evidence could best be shown at trial. But neither he nor the
government touched on Dzhokhar's objections. We do not understand
why the judge had to consider this presentation issue on an ex-
parte basis. But given the "unimportance of the material"
discussed at this brief hearing, any error "inflicted no prejudice"
on Dzhokhar. See Innamorati, 996 F.2d at 488.
As for the other ex-parte communications, we think that
the necessity to keep sensitive information from the defense
sufficiently justified the procedures employed in this case. And
not for nothing, but these ex-parte measures actually helped
protect Dzhokhar's due-process rights, for they allowed the judge
to review and rule on the materials' discoverability — rather than
leaving the decision in the hands of prosecutors. See generally
Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987) (explaining that
62 The government has given Dzhokhar's appellate counsel and
us a document (filed under seal) describing the ex-parte materials
and explaining why the defense should not get them.
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"[i]n the typical case where a defendant makes only a general
request for exculpatory material under Brady . . ., it is the
[government] that decides which information must be disclosed").
On this point Innamorati put it best: "[T]he interests of justice
are better served by encouraging the government to let the district
court resolve" concerns about sensitive information "in close
cases"; and a "[d]efendant[] in general would not gain from a
regime that encouraged the government to decide the matter itself."
See 996 F.2d at 488. See also generally Ritchie, 480 U.S. at 59-
60 (finding the defendant's interest in discovering exculpatory
information adequately protected by trial court's in-camera review
of sensitive materials).
Dzhokhar does not gain any more traction by turning to
the judge's ex-parte, in-camera handling of the Todashev material
— proceedings prompted by the government's pressing the qualified
law enforcement investigatory privilege. True, we today hold that
the judge erred by denying the defense access to these items. But
the potentially sensitive nature of the information involved
justified the judge's "initial" ex-parte examination. See
Innamorati, 996 F.2d at 488. Which is why we applaud rather than
criticize the judge's use of established protocols for assessing
the merits of this privilege claim.
- 156 -
Not only does Dzhokhar's due-process argument collapse
— his right-to-counsel argument does too.
Citing Cronic, Dzhokhar insists that "[t]he ex parte
communications concerning contested discovery" violated his right
to counsel at a "critical stage" of his prosecution. Cronic held
that if a defendant was completely denied the right to counsel for
a "critical stage" of the trial, we irrebuttably presume that it
was harmful (we do not ask whether the error was harmless). See
466 U.S. at 659 & n.25; see also Bell v. Cone, 535 U.S. 685, 695-
96 (2002). But Dzhokhar never explains how these ex-parte
proceedings qualified as critical stages. Then there is the just-
discussed caselaw saying that ex-parte review is appropriate in
those "rare" instances where the need to keep sensitive information
from the opposing party "outweigh[s] the interest" in
inquisitorial proceedings. See Innamorati, 966 F.2d at 487. See
also generally Ritchie, 480 U.S. at 60 (recognizing that ex-parte
proceedings "den[y]" the defendant "the benefits of an 'advocate's
eye,'" but finding no constitutional problem there because the
trial judge was "obligated to release information material to the
fairness of the trial"). And that takes care of his right-to-
counsel theory.
We end here with a caveat. This is a jury trial, not a
bench trial where the judge decides the facts. And our reasoning
- 157 -
does not necessarily apply to the latter without further
consideration.
Fair-Cross-Section Requirement
Dzhokhar contends that an underrepresentation of African
Americans in the grand and petit jury wheels violated his right to
an impartial jury selected from a fair cross-section of the
community.63 He calls the statistical methodology that our circuit
uses to determine underrepresentation — the absolute-disparity
method — "legally and statistically unsound."64 Conceding that we
as a three-judge panel are stuck with this circuit's approach, he
says that he raises the issue simply to preserve it for possible
"en banc or Supreme Court review." So "[f]or present purposes,"
he adds, "nothing else need be said" — a point with which we agree.
A jury wheel is "[a] physical device or electronic system
63
used for storing and randomly selecting names of potential jurors."
See Jury Wheel, Black's Law Dictionary (11th ed. 2019). A grand
jury decides whether to indict a suspect. See Grand Jury, Black's
Law Dictionary (11th ed. 2019). And a petit jury decides whether
to convict the indictee. See Jury: Petit Jury, Black's Law
Dictionary (11th ed. 2019).
The absolute-disparity method "measures the difference
64
between the percentage of members of the distinctive group in the
relevant population and the percentage of group members on the
jury wheel." United States v. Royal, 174 F.3d 1, 6-7 (1st Cir.
1999) (discussing United States v. Hafen, 726 F.2d 21, 23 (1st
Cir. 1984)).
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Death Penalty for Offenders Under Age 21
That takes us to Dzhokhar's constitutional claim that as
a person accused of having committed death-eligible crimes when he
was under 21 (he was 19 at the time of the bombings), he is
"categorically exempt from the death penalty."
Citing Roper v. Simmons, 543 U.S. 551 (2005), Dzhokhar
concedes — as he must — that the Supreme Court has "dr[awn] a
bright line" for death eligibility "at age 18." He just thinks
that the factors Roper considered relevant in granting death-
penalty immunity to persons under 18 — that they lack the maturity
we attribute to adults; that they are more vulnerable to peer
pressure than are adults; and that their personality traits are
less fixed, suggesting a higher likelihood of rehabilitation of
juveniles than of adults, see id. at 569-79 — apply equally to
persons under 21. Looking for support, he argues that "scientific
research" since Roper "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." He also says that there is a "growing national
consensus against the death penalty" for offenders between 18 and
20. See Am. Bar Ass'n, Resolution 111 (2018),
https://www.americanbar.org/content/dam/aba/images/abanews/mym20
18res/111.pdf.
- 159 -
Unimpressed, the government writes that Dzhokhar
discusses no research about "brain maturation that is
substantially different from the research available" at the time
Roper came down. Citing one of his sources, the government also
writes that "not a single state with an active death penalty
scheme" bans the execution of 18-to-20-year-olds. And if the
United States made that group death-penalty immune, the government
adds, quoting another of his sources, it "would be taking an
unusual legal stance with respect to prevailing international
norms."
Because Dzhokhar did not raise this issue below, we
review for plain error — reversing only if (among other
requirements) he can show an "indisputable" error, "given
controlling precedent." See United States v. Correa-Osorio, 784
F.3d 11, 22 (1st Cir. 2015). This he cannot do, however, given
Roper's square holding that 18 is "the age at which the line for
death eligibility ought to rest." See 543 U.S. at 574. The change
he proposes is certainly worthy of careful consideration. As
members of what the Constitution calls an "inferior" court, see
U.S. Const. art. III, § 1, we simply note that whether a change
should occur is for the Supreme Court to say — not us, see Morey
v. United States, 903 F.2d 880, 883 (1st Cir. 1990).
- 160 -
Crime of Violence
We end with Dzhokhar's challenge to five convictions for
using a firearm during a "crime of violence."
Background
The jury convicted Dzhokhar of (among other crimes)
multiple violations of 18 U.S.C. § 924(c). As relevant here, that
section has two prongs: the "use or carry" prong and the
"possession" prong. The first punishes anyone who "during and in
relation to any crime of violence . . . uses or carries a firearm."
Id. § 924(c)(1)(A) (emphasis added). The second punishes anyone
who "in furtherance of any such crime[] possesses a firearm." Id.
(emphasis added).65 The statute carries hefty minimum prison
terms, especially for recidivists (and these sentences are over
and above the ones they get for the underlying crime). See id.
§ 924(c)(1)(A)-(C). Another provision increases the maximum
penalty to death if the defendant, "in the course of a violation
of subsection (c)," kills "a person through the use of a firearm"
and the killing is a murder as defined in the federal murder
statute. See id. § 924(j)(1).
65 Critically for present purposes, "firearm" includes
"destructive device[s]" such as bombs. See 18 U.S.C. § 921(a)(3)-
(4).
- 161 -
Section 924(c) defines "crime of violence" (a phrase we
italicized above) as "an offense that is a felony" and
(A) has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another, or
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another
may be used in the course of committing the offense.
Id. § 924(c)(3). Courts commonly call subsection (A) the "elements
clause" (sometimes also referred to as the "force clause") and
subsection (B) the "residual clause." See, e.g., United States v.
Davis, 139 S. Ct. 2319, 2324 (2019).
Two methods exist for deciding if a prior crime is a
crime of violence: the "categorical approach" and the "modified
categorical approach." See, e.g., United States v. Taylor, 848
F.3d 476, 491-92 (1st Cir. 2017).
If the prior crime involved a violation of an
"indivisible" statute — i.e., one that "sets out a single . . .
set of elements to define a single crime" — we apply the
categorical approach. See Mathis, 136 S. Ct. at 2248. That means
we see whether the prosecution had to prove that the defendant
used, attempted to use, or threatened to use physical force against
the person or property of another — not whether he actually did.
See id. And because we care only whether the prior crime requires
physical force — not whether his criminal conduct involved physical
- 162 -
force — we focus on the least forceful conduct generally
criminalized under the statute, knowing that there must be a
realistic probability the statute would be used to criminalize the
conduct. See United States v. Báez-Martínez, 950 F.3d 119, 124
(1st Cir. 2020). And "physical force" here means "force capable
of causing physical pain or injury" to a person or physical damage
to property. See Johnson v. United States, 559 U.S. 133, 138-40
(2010) ("Curtis Johnson"); see also Davis, 139 S. Ct. at 2325-26.
Alternatively, if the prior crime involved a violation
of a "divisible" statute — i.e., one that defines multiple crimes
with distinct elements — we apply the modified categorical
approach (if the statute simply lists different means of committing
a single crime, then it is indivisible and we use the categorical
approach). See Mathis, 136 S. Ct. at 2249. This approach allows
us to look beyond the face of the statute to a limited set of
documents — known as "Shepard documents," which include the
indictment, jury instructions, and verdict forms — to see "what
crime, with what elements," the defendant committed. See id.
(discussing Shepard v. United States, 544 U.S. 13 (2005)); see
also United States v. Delgado-Sánchez, 849 F.3d 1, 8 (1st Cir.
2017). But the approach "serves a limited function," namely, to
"help[] effectuate the categorical analysis" when we are faced
with a divisible statute — in other words, after reviewing the
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relevant documents and identifying the specific crime underlying
the defendant's conviction, we must then apply the categorical
approach to that crime to see if it is a crime of violence. See
Descamps v. United States, 570 U.S. 254, 260 (2013).
Days after the judge sentenced Dzhokhar — giving him
death on some of the death-eligible counts and various concurrent
and consecutive terms on the remaining counts (including 20 life
terms) — the Supreme Court invalidated the Armed Career Criminal
Act's similarly worded residual clause as unconstitutionally
vague. See Johnson v. United States, 135 S. Ct. 2551, 2557 (2015)
("Samuel Johnson"). For easy reading, we shorten Armed Career
Criminal Act to "ACCA." The ACCA's residual clause defined
"violent felony" as any crime punishable by a term of imprisonment
exceeding one year that "involves conduct that presents a serious
potential risk of physical injury to another." See 18 U.S.C.
§ 924(e)(2)(B). In tossing out that residual clause, Samuel
Johnson (in brief) found "[t]wo features of the [ACCA's] residual
clause" troublesome: it "leaves grave uncertainty about how to
estimate the risk posed by a crime" and "about how much risk it
takes for a crime to qualify as a violent felony." See 135 S. Ct.
at 2557-58 (emphasis added).
Relying on Samuel Johnson, Dzhokhar moved for a judgment
of acquittal on all of the § 924(c) counts. He also asked for a
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new penalty-phase trial as well. According to his motion, the
judge had told the jury (without objection) that all of the
"predicate" offenses — malicious destruction of property, for
example, or conspiracies to use a weapon of mass destruction, to
bomb a place of public use, and to maliciously destroy property —
constituted crimes of violence as a matter of law. But, he noted,
the judge did not say which of § 924(c)'s clauses applied to which
predicate. Insisting that the government could no longer rely on
the residual clause after Samuel Johnson, he also claimed that
none of the predicates categorically qualified as a crime of
violence under the elements clause.
Opposing the motion, the government argued first that
Dzhokhar had waived his challenge to the § 924(c) counts by not
raising it sooner. The government premised this argument on two
theories: that Dzhokhar had to raise defects in the indictment
before trial and that he had to object to the judge's crime-of-
violence instructions either before or after the judge gave them.
Waiver aside, the government also argued that the different
wordings between § 924(c)'s residual clause and the ACCA's
residual clause made Samuel Johnson's void-for-vagueness analysis
inapplicable to Dzhokhar's case. And relying on Curtis Johnson,
the government insisted that the predicates qualified as crimes of
violence under the elements clause because they involved the use,
- 165 -
attempted use, or threatened use of violent physical force against
the person or property of another.
The judge denied Dzhokhar's motion, finding § 924(c)'s
residual clause not impermissibly vague and each contested
predicate a crime of violence under the elements clause. In a
footnote, the judge theorized how Dzhokhar may have waived any
argument that the predicates failed to satisfy the elements clause.
But the judge did not resolve the waiver issue because he found no
error.
During the briefing phase of this appeal, the Supreme
Court issued an opinion declaring § 924(c)'s residual clause
overly vague. See Davis, 139 S. Ct. at 2336. With Davis on the
books, that leaves only one potential path for treating the
predicates as crime-of-violence offenses: the elements clause, a
provision (as we said) that sweeps in crimes having "as an element
the use, attempted use, or threatened use of physical force," see
18 U.S.C. § 924(c)(3)(A) — i.e., "force capable of causing physical
pain or injury" to a person or physical damage to property, see
Curtis Johnson, 559 U.S. at 140.
Basic Appellate Arguments
On appeal Dzhokhar limits his challenge to five § 924(c)
convictions involving Counts 13, 15, 16, 17, and 18. Counts 13
and 15 alleged as predicates the malicious destruction of property,
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colloquially known as arson, resulting in death (as charged in
Counts 12 and 14, respectively). See 18 U.S.C. § 844(i). And
Counts 16, 17, and 18 alleged as predicates conspiracies to use a
weapon of mass destruction, to bomb a place of public use, and to
maliciously destroy property, all resulting in death (as charged
in Counts 1, 6, and 11, respectively). See 18 U.S.C.
§§ 2332a(a)(2), 2332f(a)(1) and (2), 844(i) and (n).
In essence, Dzhokhar's position boils down to this.
Arson — the predicate crime for Counts 13 and 15 — fails to satisfy
the elements clause because, first, one can commit the offense by
maliciously destroying "any" property, including one's own and so
does not require as an element that force be used against the
person or property of another, as the elements clause requires;
and second, one can commit the crime with a reckless mental state
but the elements clause demands intentional conduct. Arguing
further, Dzhokhar contends that the challenged conspiracies — the
predicate crimes for Counts 16, 17, and 18 — fail to satisfy the
elements clause because conspiracies criminalize mere agreements
to commit an act and thus do not necessarily have as an element
the actual, attempted, or threatened use of physical force.
The government responds, essentially, this way. It
agrees that malicious destruction of property "simpliciter . . .
is not categorically a crime of violence." It admits that under
- 167 -
our current precedent "reckless conduct, as opposed to intentional
conduct, cannot constitute the use of force against the person or
property of another." It accepts that "conspiring to commit a
violent act does not necessarily have as an element the use,
attempted use, or threatened use of physical force." And it
consents to our vacating of Count 18 — predicated on conspiracy to
commit arson — albeit on grounds different from those offered by
Dzhokhar66 (thus sparing us the need to discuss Count 18 further).
But the government insists that when the indictment
charges arson as a capital crime, "the jury must find as an
element" at least one of the FDPA's gateway-intent factors — each
of which "requires proof that the defendant engaged in intentional
conduct that directly resulted in a victim's death," meaning he
used a level of force required under the elements clause.67 It
66 Dzhokhar argues that Count 18 is not a valid predicate
because conspiracy to commit an offense is simply an agreement to
commit an offense, and such an agreement does not always require
the actual, attempted, or threatened use of physical force. But
the government insists Count 18 is invalid because the indictment
did not charge the predicate conspiracy as a capital count.
67 The gateway-intent factors require proof that the defendant
(A) intentionally killed the victim;
(B) intentionally inflicted serious bodily injury that
resulted in the death of the victim;
(C) intentionally participated in an act, contemplating
that the life of a person would be taken or intending
that lethal force would be used in connection with a
person, other than one of the participants in the
- 168 -
also insists that the death-resulting allegations "independently
require[] proof that the victim was subjected to 'physical force'"
as used in the elements clause. And it takes a similar approach
with the remaining conspiracy predicates, claiming that the death-
resulting allegations establish the type of force needed to satisfy
the elements clause.
Analysis
The parties spend some time addressing our standard of
review. Dzhokhar argues for a de novo appraisal, noting that we
typically evaluate judgment-of-acquittal and crime-of-violence
assessments without giving any deference to the district judge's
views. See United States v. Santos-Soto, 799 F.3d 49, 56 (1st
Cir. 2015) (judgment of acquittal); United States v. Turner, 501
F.3d 59, 67 (1st Cir. 2007) (crime of violence). The government
pushes for plain-error review, repeating the waiver arguments it
offense, and the victim died as a direct result of the
act; or
(D) intentionally and specifically engaged in an act of
violence, knowing that the act created a grave risk of
death to a person, other than one of the participants in
the offense, such that participation in the act
constituted a reckless disregard for human life and the
victim died as a direct result of the act.
18 U.S.C. § 3591(a)(2)(A)-(D). Because no one argues otherwise,
we assume without deciding that the government is right in saying
that each factor (including (D)) requires intentional conduct.
See also Báez-Martínez, 950 F.3d at 124–28 (holding that the mens
rea required for second-degree murder satisfies the ACCA's
elements clause).
- 169 -
made in the district court: that Dzhokhar had to — but did not —
raise the crime-of-violence issue pretrial or object to the crime-
of-violence instructions either before or after the judge gave
them.
We think Dzhokhar has the better of this standard-of-
review exchange. United States v. Cruz-Rivera concluded that a
defendant's judgment-of-acquittal motions preserved his § 924(c)
predicate-offense challenge. 904 F.3d 63, 65 (1st Cir. 2018).
And Cruz-Rivera did so even though the defendant had not moved to
dismiss the indictment or objected to the jury charge instructing
that the at-issue predicate constituted a crime of violence as a
matter of law. See Br. for Appellee at 10, Cruz-Rivera, 904 F.3d
63 (No. 16-1321), 2018 WL 3035960, at *9-10; Br. for Appellant at
20, Cruz-Rivera, 904 F.3d 63 (No. 16-1321), 2018 WL 3261713, at
*20. The government tries to downplay the importance of this
decision by saying "Cruz-Rivera . . . did not definitively opine
on" the waiver question because "the government never challenged
the preservation of the claim." When we give de novo review to an
unpreserved claim because the government failed to argue plain
error to us, we say so. See, e.g., United States v. Blewitt, 920
F.3d 118, 122 n.2 (1st Cir. 2019) (quoting United States v.
Encarnación-Ruiz, 787 F.3d 581, 586 (1st Cir. 2015)). But Cruz-
Rivera said nothing of the sort — it only said that the defendant
- 170 -
had "preserved this issue below." 904 F.3d at 65. So de novo
review is called for.
To the merits then.
First up is whether Dzhokhar's arson convictions (on
Counts 12 and 14) satisfy the elements clause. The arson statute
at issue punishes the use "of fire or an explosive" to "maliciously
damage[] or destroy[] . . . any . . . property used in interstate
or foreign commerce or in any activity affecting interstate or
foreign commerce." 18 U.S.C. § 844(i) (emphasis added). And the
parties agree (or at least do not dispute) that "maliciously" there
includes both intentional and reckless acts. See generally United
States v. Grady, 746 F.3d 846, 848-49 (7th Cir. 2014) (adopting
this definition and collecting circuit cases doing the same).
Our caselaw says that recklessness does not suffice the
ACCA's materially identical elements clause. See Báez-Martínez,
950 F.3d at 126 (discussing our bright-line rule that "reckless
conduct bereft of an intent to employ force against another falls
short of the mens rea required under" the ACCA (emphasis removed
and citation omitted)).68 And our caselaw routinely uses decisions
68 To give a rough sense of our caselaw's evolution: The
Supreme Court has found recklessness sufficient to count as a crime
that "has, as an element, the use or attempted use of physical
force" under 18 U.S.C. § 921(a)(33)(A) — a statute barring persons
convicted of a "misdemeanor crime of domestic violence" from
possessing a gun. See Voisine v. United States, 136 S. Ct. 2272,
2280 (2016). Voisine said "use" refers to "the act of employing
- 171 -
interpreting the ACCA's elements clause in construing § 924(c)'s,
see Taylor, 848 F.3d at 491 — no surprise, since both clauses
encompass "the use, attempted use, or threatened use of physical
force against the person . . . of another," compare 18 U.S.C.
§ 924(e)(2)(B)(i), with id. § 924(c)(3)(A). Which perhaps
explains why the government concedes that crimes requiring
something." Id. at 2278 (quotation marks omitted). So, Voisine
held, the "use of physical force" requires "volitional" but not
"knowing or intentional" conduct. See id. at 2279-80. Voisine,
though, left undecided whether this statutory interpretation
should apply in other contexts. See id. at 2280 n.4.
On the heels of Voisine, we decided Bennett v. United States,
868 F.3d 1 (1st Cir. 2017). Bennett noted that the ACCA requires
a use of physical force "against the person of another," while the
statute in Voisine requires a use of physical force without the
"against the person of another" jargon. See 868 F.3d at 18.
Bennett reasoned that "against" may require that "the
perpetrator . . . knowingly or purposefully . . . caus[e] the
victim's bodily injury." Id. But Bennett also found compelling
the possibility that "against" does not change Voisine's analysis.
Id. at 18-20. Finding a "grievous ambiguity" concerning whether
recklessness suffices under the ACCA's elements clause, Bennett
invoked the rule of lenity to hold in the defendant's favor that
recklessness did not suffice. Id. at 23 (quotation marks omitted).
We withdrew Bennett after the defendant died. See Bennett v.
United States, 870 F.3d 34, 36 (1st Cir. 2017) (per curiam). But
we adopted its reasoning in a later case. See United States v.
Windley, 864 F.3d 36, 37 n.2 (1st Cir. 2017) (per curiam).
The government believes that we decided these cases wrongly.
The Supreme Court granted certiorari to resolve a circuit split
regarding whether a crime involving "ordinary recklessness can
satisfy the ACCA's [elements] clause." Báez-Martínez, 950 F.3d at
125 n.5. The Court dismissed certiorari after the petitioner died,
see Walker v. United States, 140 S. Ct. 953 (2020), but the Court
recently granted certiorari in another case to address the same
issue, see United States v. Borden, 769 F. App'x 266 (6th Cir.
2019), cert. granted, 140 S. Ct. 1262 (2020).
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recklessness, as opposed to intent, do not qualify as crimes of
violence under § 924(c)'s elements clause — at least under existing
circuit precedent.
Our caselaw is also clear about what happens next.
Applying the minimum-conduct rule (as a reminder, the elements-
based approach focuses on "the least culpable conduct"
criminalized, Báez-Martínez, 950 F.3d at 124), we must presume
that Dzhokhar acted with recklessness, see Taylor, 848 F.3d at
492. So — as counterintuitive as it might first seem — his arson
convictions are not crimes of violence for purposes of § 924(c)'s
elements clause.
And none of the government's responses alters this
conclusion.
The government argues that "[w]here . . . arson is
charged as a capital offense, the jury must find as an element at
least one of the four 'gateway' special intent factors" in the
FDPA. These factors, says the government, require proof that the
defendant intentionally engaged in conduct that resulted in a
victim's death and thus proof that he "intentionally used force
sufficient to kill the victim."
This aspect of the government's response overlooks that
the gateway factors are drawn from the FDPA, not § 844(i) itself.
Under either the categorical or modified categorical approach, we
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generally look to the statute of conviction to determine the
elements of the crime. See, e.g., Mathis, 136 S. Ct. at 2248.
And nowhere in § 844(i) does there appear an intent element. The
government has pointed us to no authority suggesting that we can
look beyond the statute of conviction to an unrelated statutory
scheme — like the FDPA — to add elements to a crime for these
purposes. See Taylor, 848 F.3d at 491 (explaining that
"'[e]lements' are the 'constituent parts' of a crime's legal
definition" (alteration in original) (quoting Mathis, 136 S. Ct.
at 2248)). To convict Dzhokhar on the arson offenses (Counts 12
and 14) — the predicates for the contested § 924(c) counts (Counts
13 and 15) — the jurors did not have to find any of the gateway-
intent factors. Instead, they could convict even if he acted
recklessly rather than intentionally. Had the penalty-phase
jurors not found the gateway factors proven beyond a reasonable
doubt as to the arson charges, Dzhokhar could not have gotten a
judgment of acquittal on those counts (Counts 12 and 14); indeed,
the indictment on those two counts does not reveal on its face
that the government had to prove intent. Surely then those factors
cannot be elements of the arson predicates.
The government next contends that the death-resulting
allegations in Counts 12 and 14 provide an independent basis for
us to conclude that the arson predicates satisfy § 924(c)'s
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elements clause. But even assuming without deciding that the
death-resulting allegations are elements (the parties fight over
whether they are), we know the minimum conduct necessary to commit
arson resulting in death is still recklessness. See generally
United States v. Gullett, 75 F.3d 941, 947-48 (4th Cir. 1996)
(deeming evidence of malice sufficient to convict the defendant of
violating the arson statute, § 844(i), specifically rejecting his
argument that the jury had to find that he intended to damage the
property). As we will discuss shortly, the fact that death results
(when included as an element of the statute of conviction) may
indicate the application of violent force. But it does not
necessarily involve the intentional application of physical force
(i.e., a "use" in the language of the elements clause) as our
caselaw requires. See Bennett v. United States, 868 F.3d 1, 7–9
(1st Cir. 2017) (holding that recklessly causing bodily injury
does not constitute the "use . . . of physical force against the
person of another"), opinion withdrawn as moot, 870 F.3d 34, 36
(1st Cir. 2017), reasoning adopted by United States v. Windley,
864 F.3d 36, 37 n.2 (1st Cir. 2017). So the government's second
basis for affirming these contested § 924(c) counts (Counts 13 and
15) is not compelling either.69
69 Given our analysis, we need not address Dzhokhar's
alternative claim: that the arson convictions cannot be predicates
because § 844(i) punishes the destruction of one's own property,
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Next up is whether Dzhokhar's conspiracy convictions (on
Counts 1 and 6) satisfy the elements clause. Recall that
prosecutors predicated the relevant § 924(c) counts (Counts 16 and
17) on his allegedly conspiring to use a weapon of mass destruction
(Count 1), see 18 U.S.C. § 2332a(a)(2), and to bomb a place of
public use (Count 6), see id. § 2332f(a)(1) and (2), each resulting
in death. Section 2332a(a)(2) criminalizes anyone "who, without
lawful authority, uses, threatens, or attempts or conspires to
use, a weapon of mass destruction . . . against any person . . .
within the United States," provided the "threat, attempt, or
conspiracy[] would have affected interstate or foreign commerce."
Section 2332f(a)(1) applies to anyone who "unlawfully delivers,
places, discharges, or detonates an explosive . . . in, into, or
against a place of public use . . . with the intent to cause death
or serious bodily injury, or . . . with the intent to cause
extensive destruction of such a place." Section 2332f(a)(2)
prohibits "attempts or conspirac[ies] . . . under
[§ 2332f(a)(1)]." And "if death results" from these crimes, the
statutes provide for punishment "by death or imprison[ment] for
while § 924(c)'s elements clause covers the use of force against
the property of the another. See generally PDK Labs. Inc. v. DEA,
362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring)
(explaining that "if it is not necessary to decide more, it is
necessary not to decide more").
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any term of years or for life." See id. § 2332a(a); see also id.
§ 2332f(c).
Helpfully, the parties agree that the at-issue
convictions concern conspiracies to use a weapon of mass
destruction and to bomb a place of public use (not attempts to do
either crime, for example), with death resulting.70 Our "task"
then "is to compare" the elements of those conspiracies "to the
definition of a 'crime of violence' in the force clause." See
United States v. García-Ortiz, 904 F.3d 102, 106 (1st Cir. 2018)
(using the categorical approach where the parties "agree[d]" that
the defendant's "conviction concerned Hobbs Act robbery (not
extortion)"). So the question is whether the at-issue conspiracy
offenses have as an element the use, attempted use, or threatened
use of "violent [physical] force — that is, force capable of
causing physical pain or injury to another person." See Curtis
Johnson, 559 U.S. at 140; see also Moncrieffe v. Holder, 569 U.S.
184, 190-91 (2013) (requiring courts to consider whether the least
serious form of the relevant offense meets that standard). If it
does, then the relevant conspiracies qualify categorically as
crimes of violence — if not, then not.
70The government's brief does quote § 2332f(a)(1), which
again punishes the bombing of a place of public use (we simplify
slightly here). But the government tailors its arguments to the
conspiracy context, which of course implicates § 2332f(a)(2).
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A conspiracy is — as the parties concur — a knowing
agreement between two or more people "to commit a crime, intending
that the underlying offense be completed." See United States v.
Ledée, 772 F.3d 21, 32 (1st Cir. 2014). The crime of conspiracy
is the agreement rather than the completed offense. See Iannelli
v. United States, 420 U.S. 770, 777 (1975) (explaining that
"[c]onspiracy is an inchoate offense, the essence of which is an
agreement to commit an unlawful act").71 So "conspiracy's elements
are met as soon as the participants have made an agreement."
Sessions v. Dimaya, 138 S. Ct. 1204, 1219 (2018). Thus — to borrow
a line from the government's brief (emphasis omitted) — "simply
conspiring to commit a violent act does not necessarily have as an
element the use, attempted use, or threatened use of physical
force," meaning "most conspiracies to commit what would otherwise
be crimes of violence are not categorically crimes of violence
under" § 924(c)'s elements clause.
But the "death results" element changes things. Báez-
Martínez says that any crime for which "death results" (or any
serious bodily injury results) is an element automatically
satisfies the ACCA's "violent force" requirement. 950 F.3d at
71 Inchoate means "[p]artially completed or imperfectly
formed; just begun." See Inchoate, Black's Law Dictionary (11th
ed. 2019).
- 178 -
132. So while most conspiracies are not crimes of violence,
conspiracies that are categorically defined to result in death are
(assuming the other requirements like intent are satisfied). And
here, the statute makes "death results" an element of the crime.
Section 2332a says that "if death results" from a violation of the
at-issue conspiracy statutes, the punishment may be up to life in
prison or death. 18 U.S.C. § 2332a(a). Section 2332f incorporates
this penalty scheme. Id. § 2332f(c).
Dzhokhar argues that "death results" is not an element
of § 2332a or § 2332f under the crime-of-violence categorical
approach because, like the FDPA gateway factors, that element need
only be proven to the jury at the penalty phase. But unlike the
FDPA gateway factors, the "death results" element appears in the
statute of conviction itself (or is incorporated into that statute,
for § 2332f). True, as Dzhokhar suggests, a (guilt-phase) jury
could have convicted him under § 2332a or § 2332f without deciding
that anyone died, and those convictions would stand even if the
(penalty-phase) jury found that no deaths resulted. But these
statutes, it seems to us, are divisible into two branches: one in
which there is no "death results" element (and the penalty is up
to life in prison), and one in which "death results" is an element
(and the penalty can be death). See Mathis, 136 S. Ct. at 2256
(noting that "[i]f statutory alternatives carry different
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punishments, then under Apprendi they must be elements"). Yet we
know Dzhokhar's conduct falls into the latter branch. And this we
know from the indictment — which for Counts 1 and 6 says that the
conspiracy resulted in the death of at least one person; and from
the jury's guilt-phase verdict — which found beyond a reasonable
doubt that the conspiracies resulted in at least one death.72 So
under the modified categorical approach, the predicate offenses
(Counts 1 and 6) are crimes of violence. And thus his convictions
on Counts 16 and 17 must stand.
Our use of the modified categorical approach here aligns
with the purpose behind that doctrine. The Supreme Court designed
the categorical and modified categorical approaches to simplify
the types of evidence we can look to in making a crime-of-violence
assessment. See Taylor v. United States, 495 U.S. 575, 601 (1990)
(recognizing the "practical difficulties and potential unfairness
of a factual approach"); see also Shepard, 544 U.S. at 17. Were
we to go beyond these Shepard documents, we could find ourselves
72The judge instructed the guilt-phase jurors that to convict
Dzhokhar on the contested conspiracy counts (Counts 1 and 6), the
government had to prove three elements beyond a reasonable doubt:
first, that he agreed with another to use a weapon of mass
destruction (Count 1) and to bomb a place of public use (Count 6);
second, that he knowingly joined these conspiracies, intending
that the crimes be committed; and third, that these conspiracies
"resulted in the death of a person named in the respective count
of the indictment."
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lost in a sea of evidence presented at trial to the jury. And we
might never be able to tell whether certain facts were proven
beyond a reasonable doubt. But our analysis requires no guesswork,
for (again) the Shepard-approved documents and the text of § 2332a
and § 2332f indicate that at least one person died as a result of
Dzhokhar's involvement in the conspiracy.
In a different context, we have noted that an
indictment's death-resulting references "invoked" a statute's
"sentencing regime," increasing "the maximum sentence available,"
and so is "pertinent only to sentencing." United States v.
Hilario-Hilario, 529 F.3d 65, 69 (1st Cir. 2008) (emphasis added).
And except for a fact of a prior conviction, any fact that boosts
a crime's maximum sentence or minimum sentence must be established
beyond a reasonable doubt to a jury's satisfaction (unless the
defendant agrees to a bench trial or formally admits the facts).
See Apprendi, 530 U.S. at 490 (maximum); Alleyne v. United States,
570 U.S. 99, 103 (2013) (minimum); see also United States v.
Gonzalez, 949 F.3d 30, 41-42 (1st Cir. 2020). See generally
Burrage v. United States, 571 U.S. 204, 210 (2014) (stating that
"[b]ecause the 'death results' enhancement [in 21 U.S.C. § 841(b)]
increased the minimum and maximum sentences to which [the
defendant] was exposed, it is an element that must be submitted to
the jury and found beyond a reasonable doubt"). Dzhokhar's reply
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brief touches on these points, at least inferentially. But while
an additional sentencing element — like § 2332a's "death
results" — would be "pertinent only to sentencing" for most
purposes, see Hilario-Hilario, 529 F.3d at 69, for purposes of the
modified categorical approach, we think here that it is right to
consider this as an element of the crimes of conviction, see
Mathis, 136 S. Ct. at 2256.73
CONCLUSION
Having completed our review, the net result is this: We
reverse Dzhokhar's convictions on Counts 13, 15, and 18, with
directions to acquit. And we vacate his death sentences on Counts
4, 5, 9, 10, and 14, with directions to hold a new penalty-phase
trial consistent with this opinion and with Local Rule 40.1(k)(1)
of the District of Massachusetts. But make no mistake: Dzhokhar
will spend his remaining days locked up in prison, with the only
matter remaining being whether he will die by execution.
-Concurring Opinion Follows-
73Not to put too fine a point on it, the government proved
the death-resulting element beyond a reasonable doubt — something
we know without looking beyond the Shepard documents.
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TORRUELLA, Circuit Judge (Concurring in part, Joining in
part, Concurring in Judgment). I agree with the lion's share of
the majority's reasoning and join all its holdings. I regretfully
must write separately, however, to express my disagreement with
its handling and tentative conclusion of Tsarnaev's claim that he
could not receive a fair trial by an impartial jury in this venue.
Tsarnaev properly raised this issue with our blessing,
and it therefore requires -- and deserves -- a straight answer.
In my view, the district court's rulings on Tsarnaev's motions for
transfer of the trial venue, affirmed on intermediate appeal by
this court and tentatively adopted by the majority, was patently
incorrect.74 Furthermore, the issue of unduly prejudicial pretrial
publicity is likely to recur with more frequency in this modern
day of technology. If an accused's Fifth and Sixth Amendment
rights are to be other than a hollow platitude, it is imperative
that this court's jurisprudence establish a realistic standard for
cases such as this one, in which a steady stream of information by
way of myriad sources inundated an already deeply affected
community. If this case did not present a sufficient basis for a
74 The denials of Tsarnaev's mandamus petitions further reflect a
long-standing circuit bias on the pretrial publicity issue, which
required a panel of out-of-circuit judges to overcome. Compare
United States v. Casellas-Toro, 807 F.3d 380 (1st Cir. 2015) with
United States v. Moreno-Morales, 815 F.2d 725 (1st Cir. 1987).
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change of venue, there are no set of circumstances that will meet
this standard, at least not in the First Circuit.
Let me be clear that at the sentencing retrial of this
case, if the issue of venue is again raised, Tsarnaev will have to
allege and prove prejudicial circumstances at the time of his
motion, likely nearly a decade after the crime was committed. But
that is a horse of another color. The question before us that
must be decided is whether Boston was the appropriate venue for
Tsarnaev's trial in 2015.
I. Discussion
In denying Tsarnaev's second mandamus petition, the
mandamus majority assured that it "reviewed the entire voir dire
conducted to this point by the [district] court and the parties,"75
and that "the process ha[d] been thorough and appropriately
calibrated to expose bias, ignorance, and prevarication." In re
Tsarnaev ("Tsarnaev II"), 780 F.3d 14, 24-25 (1st Cir. 2015); see
id. at 24 (noting that "[t]he careful selection process and the
trial judge's expressed confidence in finding sufficient jurors
. . . is supported by the record," and that "[the voir dire
75 This court denied Tsarnaev's second mandamus petition on
February 27, 2015. The district court provisionally qualified
seventy-five jurors as of February 25, 2015, after voir dire was
completed. It was from these seventy-five jurors that the petit
jury was chosen.
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process] is working to ferret out those jurors who should
appropriately be excused for cause"), 26 (declaring that "the
careful process employed by the district court . . . ha[s]
afforded [it] 'a sturdy foundation to assess fitness for jury
service.'" (quoting Skilling v. United States, 561 U.S. 358, 395
(2010))), 26-28 (describing the district court's efforts to
"explore, and eliminate, any prejudice" as "rigorous,"
"extensive," and "careful"). Today, this court reverses course
and finds the district court's juror inquiry lacked adequate
safeguards, a finding with which I fully agree.
The majority's reason for reaching that conclusion,
however, misses the forest for the trees. Although I agree that
jury selection in this case failed to comply with this court's
mandate in Patriarca v. United States, 402 F.2d 314, 318 (1st Cir.
1968), the fact of the matter is that "[n]o amount of voir dire
[could have] overcome th[e] pervasive prejudice" against Tsarnaev
in the Eastern Division of the District of Massachusetts, "no
matter how carefully it [was] conducted." Tsarnaev II, 780 F.3d
at 30 (Torruella, J., dissenting). The district court's denials
of Tsarnaev's motions for change of venue amount to an abuse of
discretion and denied Tsarnaev the right to a fair trial and
sentencing determination.
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A. This Panel Should Address Venue
To decide this case on Patriarca grounds, the majority
puts its weight on the mandamus majority's expectation that a
searching voir dire would be conducted. See slip op. at 42, 72.
Yet, this was not the only assurance that drove the mandamus
majority's denial in Tsarnaev II. That venue-change-denial also
heavily relied upon the assumption that, should Tsarnaev be
convicted, he would "have the opportunity to raise a challenge
based on a lack of a fair and impartial jury on direct appeal."
780 F.3d at 18. "Indeed, that is the customary mechanism by which
such challenges are presented and assessed." Id. at 18-19; see
also id. at 29 ("[M]ost importantly, . . . the petitioner remains
able to raise claims of lack of an impartial jury on direct
appeal."). Because this "double layer of review is itself a
guarantee of due process," the mandamus majority concluded,
Tsarnaev could not make a showing of the "irreparable injury"
necessary to warrant mandamus relief. Id. at 28-29.
The question of whether venue was proper in the Eastern
Division is a preliminary matter that precedes all others raised
in this case -- be it jury selection, the exclusion of mitigating
evidence, or any evidentiary challenge. This is so because the
impropriety of venue is a primordial prejudicial error; should a
presumption of prejudice be warranted, the district court should
- 186 -
not have embarked in jury selection (or made any evidentiary
rulings) in the first place. Cf. Rideau v. Louisiana, 373 U.S.
723, 727 (1963) (finding a presumption of prejudice "without
pausing to examine a particularized transcript of the voir dire");
United States v. Casellas-Toro, 807 F.3d 380, 389 (1st Cir. 2015)
(looking to jury selection only after assuming the presumption of
prejudice is rebuttable). The administration of justice demands
that the question of venue be resolved.
Despite claiming not to decide the venue issue, by one-
sidedly laying out the government's arguments as to venue and then
proceeding to find Patriarca error, see slip op. at 54-72, the
majority implicitly and effectively resolves the issue in the
government's favor -- tacitly finding that venue would have been
proper in the Eastern Division had the district court conducted an
adequate voir dire. For the following reasons, I cannot agree.
B. Venue in the Eastern Division was Improper
The physical and emotional wake of the Boston Marathon
bombings, and the events of the following week, flooded the
residents of the Eastern Division with sorrow, fear, and anger.
Few crimes have been as offensive and devastating to an entire
community than those committed by the Tsarnaev brothers. But for
even the most heinous of offenses, our system of justice demands
vigorous protection -- both in appearance and fact -- of a
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defendant's right to a fair trial and sentencing. "[T]he right to
jury trial guarantees to the criminally accused a fair trial by a
panel of impartial, indifferent jurors. The failure to accord an
accused a fair hearing violates even the minimal standards of due
process." Irvin v. Dowd, 366 U.S. 717, 722 (1961) (emphasis added)
(internal quotations marks omitted).
1. A Presumption of Prejudice was Warranted
Article III of the United States Constitution instructs
that criminal trials "shall be held in the State where the said
Crimes shall have been committed[.]" U.S. Const. art. III, § 2,
cl. 3. The Sixth Amendment further directs that a criminal
defendant be tried by a jury "of the State and district wherein
the crime shall have been committed." U.S. Const. amend VI.
Sometimes in tension with this directive is a criminal
defendant's Sixth Amendment right to an impartial jury and Fifth
Amendment promise of fundamental fairness. One such circumstance
is when "extraordinary local prejudice" will prevent a fair trial
in the judicial district in which the crime was committed.
Skilling, 561 U.S. at 378. Where these constitutional provisions
collide, Article III's venue dictate must give way. Accordingly,
"[u]pon the defendant's motion, the court must transfer the
proceeding against that defendant to another district if the court
is satisfied that so great a prejudice against the defendant exists
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in the transferring district that the defendant cannot obtain a
fair and impartial trial there." Fed. R. Crim. P. 21(a).
"The theory of our [trial] system is that the conclusions
to be reached in a case will be induced only by evidence and
argument in open court, and not by any outside influence, whether
of private talk or public print." Skilling, 561 U.S. at 378
(alteration in original) (quoting Patterson v. Colorado ex rel.
Att'y Gen. of Colo., 205 U.S. 454, 462 (1907) (opinion for the
Court by Holmes, J.)). Where "pervasive pretrial publicity has
inflamed passions in the host community past the breaking point"
and "permeat[es] the trial setting . . . [such] that a defendant
cannot possibly receive an impartial trial," the district court
must presume local prejudice and transfer the proceeding. United
States v. Quiles-Olivo, 684 F.3d 177, 182 (1st Cir. 2012); see
also Sheppard v. Maxwell, 384 U.S. 333, 362 (1966) ("Due process
requires that the accused receive a trial by an impartial jury
free from outside influences."). A presumption of prejudice is
"reserved for those extreme cases where publicity is both extensive
and sensational in nature." Quiles-Olivo, 684 F.3d at 182
(internal quotation marks omitted) (quoting United States v.
Misla-Aldarando, 478 F.3d 52, 58 (1st Cir. 2007)).
We have once again been tasked with determining whether
the effects of these tragic events, coupled with the unrelenting
- 189 -
pretrial publicity, caused such extraordinary local prejudice that
Tsarnaev could not receive a fair trial and sentencing
determination. In more than forty-five years on the bench at both
the trial and appellate levels, and in my years of practice before
that, I have never borne witness to a case with pretrial publicity
more "extreme" or "extraordinary" than this one -- with so great
a potential for jury determinations induced by "outside
influence."76 A presumption of prejudice was warranted.
a. The residents of the Eastern Division were neither
impartial nor indifferent
The impact on the residents of the Eastern Division of
the defendant and his brother's week-long reign of terror, and the
extraordinary outpouring of unity and resilience that followed,
quite understandably left the residents of the Eastern Division
76 As an addition to the harm caused by the plethora of pretrial
publicity, upon arrival at the courthouse, and during the jury
selection process and later trial, prospective jurors were met not
only by a building whose front sidewalk was mobbed by all kinds of
press representatives and additaments, including several
television towers, but by an atmosphere of intensive security.
The courthouse was patrolled on all sides by numerous
representatives of the Massachusetts State police, the Boston
Police Department, the Federal Protective Service, the U.S.
Marshals, and even the U.S. Coast Guard and Boston Harbor Police,
the last two of whom manned boats on the courthouse's harbor
side. This, of course, is not a comment on the need or adequacy
of the security provided, but rather is meant only to call
attention to a factor that I believe has relevance to the issue of
whether an impartial jury was or could be selected when the issue
of appropriate venue was raised.
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neither impartial nor indifferent. The majority opinion has
detailed but a fraction of heart-wrenching destruction, pain, and
suffering inflicted by the Tsarnaev brothers through their crimes.
I do not believe it necessary to further elaborate on these
harrowing details. Suffice it to say, a detailed read of the
record touches even the most detached of readers.
Although the impact of the defendant's crimes was felt
nationally and internationally, the destruction was acutely felt
by the residents of the Eastern Division. The prospective jurors
and their loved ones, and the communities themselves, were all
victims of these disturbing acts of terror. In addition to those
killed and maimed by the bombings, millions in Greater Boston
witnessed firsthand the carnage at the finish-line, knew someone
directly impacted by the bombings, were ordered to shelter in
place, had their houses searched by law enforcement with weapons
drawn,77 saw their neighborhoods occupied by military personnel,
77 Radley Balko, Was the Police Response to the Boston Bombing
Really Appropriate?, Wash. Post (Apr. 22, 2014),
https://www.washingtonpost.com/news/the-watch/wp/2014/04/22/the-
police-response-to-the-boston-marathon-bombing/ (last visited
July 10, 2020).
- 191 -
or were otherwise affected by the events.78 The physical,
psychological, and emotional trauma of these events was long felt
locally. While others around the country may have viewed the
marathon bombings "as an attack on all of America," slip op. at
58, to the residents of the Eastern Division, the Boston Marathon
bombings were an attack on them.79
In the wake of that distressing April week, the residents
of Greater Boston rallied together as never before to support each
other. Immediately after the bombings, residents watching the
marathon worked alongside first responders to treat the injured.80
78 Indeed, eight residents of the Boston area, self-identified as
"Republicans, Democrats and Independents," submitted to this court
an amicus brief to this effect. See Brief for Robert Bloom et al.
as Amici Curiae Supporting Appellant Dzhokhar Tsarnaev, United
States v. Tsarnaev, No. 16-6001, at 1. Amici notes that "[t]he
multiple violent terrorist acts and their aftermath profoundly
affected our friends and neighbors," id. at 1, "every member of
the great Boston community [was] deeply affected," id. at 2, and
"many in our community . . . suffered from vicarious trauma," id.
at 12.
79 "[T]he attack in this case was uniformly viewed as a community-
wide event -- a deliberate and purposeful attack upon the greater
Boston area itself." Brief for Bloom et al, supra note 78, at 25
(emphasis added); see also Meghan E. Irons, Cambridge Tries to
Heal from Marathon Horror, Boston Globe (May 13, 2013),
https://www.bostonglobe.com/metro/2013/05/12/cambridge-tries-
heal-make-sense-bombing-horror/uEyVs89m8tOrzICc1POeAJ/story.html
("The bombings have felt like a personal afront in this city.")
(last visited July 10, 2020).
80 Jessica Hartogs, Stories of Kindness Amid Tragedy in Boston
Marathon Bombing, CBS News (Apr. 16, 2013),
https://www.cbsnews.com/news/stories-of-kindness-amid-tragedy-
in-boston-marathon-bombing/ (last visited July 10, 2020).
- 192 -
Runners that had finished the race and countless local citizens
rushed to the hospitals to donate blood -- so much so that
hospitals had to turn people away.81 Others cared for the injured
for months and years following the bombings. And to a previously
unparalleled extent, the community participated in the
identification and capture of the two bombing suspects.82
Memorials, commemorations, and fundraisers to support
the victims began soon after the finish-line attacks. Amongst
many others, all four of Boston's major sports teams played host
to these events. A week later, iconic Red Sox designated hitter
David Ortiz exclaimed to a sold-out Fenway Park, "[t]his is our
fucking city, and nobody is going to dictate our freedom. Stay
strong."83
81 Id.; Alexander Abad-Santos, This is What Boston Heroism Looks
Like, The Atlantic (Apr. 16, 2013),
https://www.theatlantic.com/national/archive/2013/04/boston-
hero-stories/316222/ (last visited July 10, 2020).
82 From Fear to Cheer; The Capture; Tsarnaev's Friends; Mystery
Motive; A Tense 24 Hours; Boston Bombing Suspect in Custody, CNN
(Apr. 20, 2013),
http://transcripts.cnn.com/TRANSCRIPTS/1304/20/bn.09.html (last
visited July 10, 2020) ("Officials are going to study this for
quite some time because police officers up there did something
that's never been quite done before. They essentially established
a capture net for the suspect and enlisted the help of the 4.5
million people. The population of the whole city to help them.").
83
See Major League Baseball, David Ortiz Rallies the Boston Crowd
after Boston Marathon Tragedy, YouTube (Apr. 20, 2013),
https://www.youtube.com/watch?v=1NttSTenyEk (last visited July
10, 2020).
- 193 -
Perhaps enhanced by Ortiz's comments, the ubiquitous and
inspiring "BOSTON STRONG" campaign grew rapidly as an impressive
expression of "defiance, solidarity, and caring."84 The blue
background with yellow lettering (borrowing from the colors of the
Boston Athletic Association, the organizers of the Boston Marathon
race) was emblazoned on buildings, fences, fields, and bodies all
over the Greater Boston metropolitan area. The campaign reflected
a sense of compassion, unity, and recovery much needed in a
community reeling from its upheaval. See Tsarnaev II, 780 F.3d at
25 n.13 ("[T]he Boston Strong theme [was] about civic resilience
and recovery."). "BOSTON STRONG" reflected "all of us coming
together as a city," one member of the venire aptly noted. As
then-Boston Police Commissioner Edward F. Davis, III, told
Congress:
These two terrorists tried to break us. What
they accomplished was exactly the opposite.
They strengthened our resolve, causing us to
band together as a city and a Nation in time
of crisis, to help one another during life
changing moments, to allow heroes to emerge
and to prove to Bostonians and to the world,
that our city is, indeed Boston Strong.85
84 Ben Zimmer, "Boston Strong," the Phrase that Rallied a City,
Boston Globe (May 12, 2013),
https://www.ca1.uscourts.gov/sites/ca1/files/citations/%E2%80%9C
Boston%20Strong%2C%E2%80%9D%20the%20phrase%20that%20rallied%20a%
20city%20-%20The%20Boston%20Globe.pdf (last visited July 10,
2020).
85The Boston Bombings: A First Look: Hearing Before the H. Comm.
On Homeland Sec., 113th Cong. 16 (May 9, 2013) (Testimony of Edward
- 194 -
Prospective jurors (including those in the venire) purchased
"BOSTON STRONG" merchandise, attended fundraisers and concerts to
raise money for the victims, or donated directly to the One Fund
Boston.86 The slogan, and what it stood for, became forever
ingrained in the community psyche.
Underlying this awesome showing of resilience was its
root cause: "deep[] personal grief, [and] a sense of loss forged
by years of Patriots Day celebrations and the cherished ritual of
cheering the runners on."87 "From Hopkinton to Boston, . . . the
bombings hit wrenchingly close to home and left many forlorn and
adrift."88 Residents struggled to make sense of what had happened,
F. Davis, III, Commissioner, Boston Police),
https://www.govinfo.gov/content/pkg/CHRG-113hhrg82590/html/CHRG-
113hhrg82590.htm (last visited July 10, 2020).
86 One Fund Boston was established by the then-Governor of
Massachusetts Deval Patrick, and Boston's then-Mayor Thomas
Menino, to provide monetary support to the victims of the Boston
Marathon bombings and their families. Rande Iaboni & Zain Asher,
One Fund Boston To Distribute Nearly $61 Million to Marathon
Victims, CNN (June 29, 2013),
https://www.cnn.com/2013/06/29/us/massachusetts-boston-victims-
fund/index.html. The Fund raised and donated over $81 million.
The One Fund Boston Will Close, WBUR (July 16, 2015),
https://www.wbur.org/news/2015/07/16/one-fund-closing.
87 Lisa Kocian & Peter Schworm, Along Marathon Route, Grief and
Anger Run Deep, Boston Globe (Apr. 17, 2013),
https://www.bostonglobe.com/metro/2013/04/16/along-route-boston-
marathon-grief-and-anger-run-
deep/k8BHS5WwmFIyA9jImhoEvM/story.html (last visited July 10,
2020).
88 Id.
- 195 -
to themselves and their neighbors, loved ones, and communities.
They knew that things would never be the same.89 Widely shared
amongst the Eastern Division was a feeling of sorrow, and that
each day "[w]e are all just doing the best we can."90
Just as the victims of other crimes (and their loved
ones) cannot be "indifferent" or "impartial" for purposes of their
wrongdoer's trial, despite any declarations to the contrary,
neither here were the residents of the Eastern Division. Thus,
the Fifth and Sixth Amendments required that they not be seated on
Tsarnaev's jury.
89
Id.; Davis, III, supra n.85 ("[T]he impact on Boston will last
for years."). Indeed, five years later, Boston Mayor Martin Walsh
noted that, "[o]n April 15, 2013, our city changed forever." Sarah
Betancourt & Vaishnavee Sharma, Boston Marks 5 Years Since
Marathon Bombings with Tributes, NBC San Diego (Apr. 15, 2018),
https://www.nbcsandiego.com/news/sports/Boston-Marks-5th-
Anniversary-of-Marathon-Bombings-479801993.html (last visited
July 10, 2020).
90 Irons, supra n.79.
- 196 -
b. Local pretrial publicity was both extensive and
sensational
In a district still suffering physical and emotional trauma, the
pretrial publicity enhanced its effects. Indisputably the volume,
depth, and duration of the media coverage, from the bombings to
Tsarnaev's capture, and well beyond, was nothing short of
extraordinary. Nor can one challenge the sensational nature of
the pretrial publicity -- including the horrific sights and sounds
at the marathon finish line, the ensuing manhunt and lockdown of
a million people, and the removal of a bloodied Tsarnaev from a
boat in Watertown. This coverage included photographic and video
footage of the crime being committed, maimed victims with bones
protruding from their bodies, and the marathon finish line covered
in blood. Every moment of the search for the suspects was live-
streamed. And newspapers and magazines documented Tsarnaev's
confessions (both written in the boat and at the hospital, the
latter of which he gave without the benefits of Miranda warnings,
despite his request for a lawyer, and which thus would not be
offered into evidence).
Coverage of the marathon bombings and its aftermath
received international attention -- the who, what, where, and when
of the crimes themselves widely covered. For anyone exposed to
the media spectacle (as 99.7% of the venire was), or anyone with
a smartphone and social media account, the pretrial publicity was
- 197 -
"in a very real sense" the guilt-phase of Tsarnaev's trial. See
Rideau, 373 U.S. at 726. For those in the Eastern Division,
however, the media coverage was amplified. The disturbing images
of maimed victims were broadcast on repeat.91 Many local residents
were confined to their homes during the Governor's lockdown order,
watching live footage of law enforcement scouring the city for the
Tsarnaevs. After viewing this news coverage, "[a]ny subsequent
court proceedings [about Tsarnaev's guilt] . . . could be but a
hollow formality." See id. Indeed, approximately two-thirds of
prospective jurors admitted in court to having concluded that
Tsarnaev was guilty of the charged crimes before seeing a single
piece of evidence.
The majority adopts the government's view -- unsupported
by the record -- that "this is not a case where almost everybody
locally knows something and very few elsewhere know of it." Slip
op. at 55. Tsarnaev submitted volumes of articles from local
newspapers that belie this assertion. Despite its recognition of
these articles in its recantation of the facts, see slip op. 24-
91See, e.g., The Associated Press, Marathon Bombing Aftermath Was
Top Massachusetts Story of 2014, MassLive (Dec. 26, 2014),
http://www.masslive.com/news/index.ssf/2014/12/marathon_bombing_
aftermath_was.html (last visited July 10, 2020) ("The legal
aftermath of the Boston Marathon attacks dominated headlines in
Massachusetts in 2014, much as the attack itself did last year and
the accused bomber's trial surely will in 2015.").
- 198 -
25, the majority seemingly ignores this detail in its venue
analysis.
Whereas nationwide coverage of the bombing gradually
waned over the following weeks and months, the record reflects
that local media coverage did not. In Greater Boston, the scope
of that reporting shifted from the facts surrounding the bombing
to a focus on "the city as a whole[,] . . . includ[ing] stories of
the victims and their family and friends, those who bravely risked
their lives to help the victims, and how the entire community came
together." Tsarnaev II, 780 F.3d at 31 (Torruella, J., dissenting)
(footnote omitted). News sources humanized the local victims and
their families, describing in heart-wrenching and gruesome detail
the emotional and physical struggles of the wounded surviving
victims. Of the first responders, local newspapers (befittingly)
wrote that "what every firefighter in the city[,] . . . every cop,
every EMS worker did[] . . . was nothing short of heroic."92 Other
journalists described how the Greater Boston community came
together to mourn the deceased, honor the injured, and begin the
collective healing process. Many of the articles, (rightfully)
92 Kevin Cullen, Answering the Call, in all its Poignant Horror,
Boston Globe (Apr. 17, 2013),
https://www.bostonglobe.com/metro/2013/04/16/when-doing-your-
job-more-than-doing-job/QOdqUtt5oeZREmbUmhhbJI/story.html (last
visited July 10, 2020).
- 199 -
pointing to the defendant as the cause of the community's
suffering, took to the use of negative descriptors -- including
repeatedly calling him a "monster", a "terrorist," "depraved,"
"callous," "vile," "revile," and the "devil."
Tsarnaev's guilt preordained, reporters soon focused on
whether Tsarnaev should be put to death -- prior even to the
government's announcement of its intention to seek this outcome.
This despite the fact that Massachusetts abolished capital
punishment in its state courts in 1984,93 had not executed a
criminal defendant for nearly forty years prior,94 and that the
majority of residents of the Eastern Division had previously
expressed general opposition to the death penalty.95 In this case,
the media reported, even those who had previously opposed capital
punishment admitted to being conflicted.96 Krystle Campbell's
93 See Commonwealth v. Colon-Cruz, 470 N.E.2d 116 (Mass 1984);
Mass. Gen. Laws ch. 265, § 2 (2020) (no longer providing for
capital punishment).
94 History of the Death Penalty, Death Penalty Information Center,
https://deathpenaltyinfo.org/state-and-federal-info/state-by-
state/massachusetts (last visited July 16, 2020).
95 See Massachusetts Isn't OK with the Death Penalty, but Dzhokhar
Tsarnaev's Jurors Have To Be, PRI, The World (Jan. 5, 2015),
https://www.pri.org/stories/2015-01-05/massachusetts-isnt-ok-
death-penalty-dzhokhar-tsarnaevs-jurors-have-be (last visited
July 10, 2020).
96 See Jan Ransom & Jacqueline Tempera, Religious Leaders
Conflicted on Tsarnaev death penalty, Boston Globe (May 18, 2015),
https://www.bostonglobe.com/metro/2015/05/17/religious-leaders-
struggle-with-feelings-over-tsarnaev-death-
- 200 -
mother, Patricia Campbell, told the Boston Globe that she had been
rethinking her longtime opposition to the death penalty because
"an eye for an eye feels appropriate." Some of the amputees and
their families were reported to have expressed similar sentiments.
First responders and victims told reporters that a death sentence
would "help everyone in their recovery." Mayor Menino, a
proclaimed opponent of the death penalty, exclaimed, "in this one,
I might think it's time . . . that this individual serves his time
and [gets] the death penalty."97 After he assumed office in January
2014, Boston Mayor Martin J. Walsh -- who had opposed the death
penalty as a state representative -- expressed his support of
Attorney General Eric Holder's "process that . . . brought him to
[the] decision" to seek capital punishment.98 Other politicians
penalty/EOl9cNhRQrGwBnkhTQAJAI/story.html?event=event12 (last
visited July 10, 2020); Tara McKelvey, Boston in Shock over
Tsarnaev death penalty, BBC News, Boston (May 16, 2015),
https://www.bbc.com/news/world-us-canada-32762999 (last visited
July 10, 2020); NBC News, Americans Divided Over Death for Boston
Bomber Dzhokhar Tsarnaev, Poll Finds (Apr. 8, 2015),
https://www.nbcnews.com/storyline/boston-bombing-
trial/americans-divided-over-death-boston-bomber-dzhokhar-
tsarnaev-poll-finds-n338076 (last visited July 10, 2020).
97 Mark Arsenault & Milton J. Valencia, Suspect Charged with Using
a Weapon of Mass Destruction, Boston.com (Apr. 22, 2013),
https://www.boston.com/news/local-news/2013/04/22/suspect-
charged-with-using-weapon-of-mass-destruction (last visited July
10, 2020) (alteration in original).
98 Matt Apuzzo, U.S. is Seeking Death Penalty in Boston Case, The
N.Y. Times (Jan. 30, 2014),
- 201 -
did the same, including both United States Senators from
Massachusetts.99 In contrast to these more restrained
endorsements, some expressed less hesitation about their support100
for Tsarnaev's execution.101 Former Boston Police Commissioners
Edward F. Davis and William Evans,102 and MIT Police Chief John
https://www.nytimes.com/2014/01/31/us/boston-marathon-bombing-
case.html (last visited July 10, 2020).
99 Shira Schoenberg, US prosecutors will seek the death penalty
against alleged Boston Marathon bomber Dzhokhar Tsarnaev, Mass
Live (Jan. 30, 2014),
https://www.masslive.com/news/boston/2014/01/dzokhar_tsarnaev_us
_will_seek_death_penalty.html (last visited July 10, 2020).
100 I do not dispute that some, including public figures, also
expressed their moral objection to the use of capital punishment.
But only those individuals who voiced a willingness to consider
recommending a death sentence, and whose views would not prevent
them from doing so, could be (and were) sat on the jury. See
Wainwright v. Witt, 469 U.S. 412, 424 (1985); Witherspoon v.
Illinois, 391 U.S. 510, 518, 520 (1968).
101Tara McKelvey, Boston in Shock Over Tsarnaev Death Penalty, BBC
News, Boston (May 16, 2015), https://www.bbc.com/news/world-us-
canada-32762999 (quoting nearby employee as saying "[p]ut him in
a cage and let wild animals tear him apart") (last visited July
10, 2020); Catherine E. Schoichet, For Boston Bombing Victims,
Death Penalty Decision a 'Step Forward,'", CNN (Jan. 30, 2014),
https://www.cnn.com/2014/01/30/justice/tsarnaev-death-
penalty/index.html (last visited July 10, 2020); Brian MacQuarrie,
In Globe Poll, Most Favor Life Term for Dzhokhar Tsarnaev , Boston
Globe (Sept. 16, 2013),
https://www.bostonglobe.com/metro/2013/09/15/most-boston-
residents-favor-life-without-parole-for-tsarnaev-convicted-poll-
shows/Ur6ivWIUiYCpEZLXBApHDL/story.html?event=event12 (last
visited July 10, 2020) (quoting respondent to poll as saying
"[l]ife without parole is insufficient").
102Boston Police Commissioner: Pursuing Death Penalty for Tsarnaev
is "Appropriate", New England Cable News (March 1, 2014),
https://www.necn.com/news/local/_necn__boston_police_commissione
- 202 -
DiFava, all expressed their approval.103 And, although it was
defeated in the Massachusetts House of Representatives, a
bipartisan group of lawmakers used the bombing as support for a
bill seeking to reinstate the death penalty.104
Perhaps because of the nature of the crime, or because
of its impact on them and their communities, the residents of the
Eastern Division were inundated with reporting about this case.105
c. Pride begets prejudice
Jury selection began in early January 2015. "BOSTON
STRONG" continued to be proudly displayed throughout Greater
Boston up to and through Tsarnaev's trial. Merchandise bearing
the slogan continued to be sold at Boston Logan's International
r__pursuing_death_penalty_for_tsarnaev_is__appropriate__necn/191
6798/ (last visited July 10, 2020).
103Antonio Planas, John Zaremba, Laurel J. Sweet, MIT's Chief Calls
for Death Penalty in Boston Bombing Case, The Boston Herald (July
11, 2013), https://www.bostonherald.com/2013/07/11/mits-chief-
calls-for-death-penalty-in-boston-bombing-case/ (last visited
July 10, 2020).
104 Stephanie Ebbert, Mass. House Defeats Proposal to Restore Death
Penalty, Boston Globe (Apr. 23, 2013),
https://www.bostonglobe.com/metro/2013/04/23/lawmakers-citing-
marathon-bombings-propose-restoring-death-penalty-
massachusetts/72UOgtShrscd9pSFRv1YsN/story.html (last visited
July 10, 2020).
105 The crimes charged in this case involved one of the first major
terrorist attacks in the United States in age of widespread social
media. Although the parties have not outlined arguments over the
impact of this technological advancement, I find it (again) worth
highlighting the advanced speed at which information and opinions
spread.
- 203 -
Airport. A banner displaying "BOSTON STRONG" was hung from a hotel
nearby the courthouse, high above the surrounding buildings. And
the drum of a cement truck parked directly across from the
courthouse's visitor's entrance was decorated with "BOSTON STRONG"
on one side and "THIS IS OUR CITY" on the other. A local Teamsters
union continued to distribute "BOSTON STRONG" t-shirts and jackets
to its members. Fundraising for the victims continued, and local
road races placed the "BOSTON STRONG" logo on shirts distributed
to its participants.
The district court dismissed the prevalence of these
displays in various ways: although the defense team took the
photographs of the banner and cement truck while jury selection
was ongoing, the district court found the logo's appearances
inconsequential because the cement truck photograph was taken on
a day on which no empaneled jurors attended court,106 and the hotel
banner was not visible at the juror's entrance to the courthouse
or from the jury room107; that the association of "BOSTON STRONG"
"weakened somewhat over time through overuse"; and that (quoting
Skilling, 561 U.S. at 361), "the decibel level of media attention
106 The record does not reflect whether the cement truck was in
the area on any days other than the one that the photograph was
taken on.
107 But it may have been visible during the jurors' commutes into
and out of the courthouse.
- 204 -
[had] diminished somewhat." As jury selection in this case began
less than two years after the bombings, the district court ignored,
however, that the continued displays of "BOSTON STRONG" reflected
an enduring community sentiment which formed the base of the
movement, and a well-deserved pride of accomplishment in the
community's efforts to return to normalcy.108 As one member of the
venire put it, "BOSTON STRONG" was "the spirit of Boston, that
despite whatever happens, . . . we will continue."
A coming together remarkably similar to this one emerged
in the wake of the 1995 bombing of the Alfred P. Murrah Federal
Office Building in Oklahoma City, Oklahoma, which killed 168
people, injured hundreds more, and damaged numerous federal
buildings. See United States v. McVeigh, 918 F. Supp. 1467,
1471-72 (W.D. Okla. 1996). Like "BOSTON STRONG," "Oklahoma family"
became "a common theme" amongst the Oklahoma media and political
leaders, emphasizing "how the explosion shook the entire state,
. . . how the state has pulled together . . . as a family," and
108 Nor did the sentiment end with this trial. It was announced
in December of 2015 that a new park in honor of Martin Richard
would be built less than two blocks from the courthouse. Lisa
Creamer, A New Park Near Boston Children's Museum Will Honor Martin
Richard, WBUR (Dec. 10, 2015),
https://www.wbur.org/news/2015/12/10/martin-richard-new-boston-
park (last visited July 10, 2020). And in September of that same
year, Bridgewater State University, roughly 30 miles south of
Boston, unveiled a life-sized sculpture of the 8-year-old victim.
Id.
- 205 -
that "the survival and recovery from this tragedy is 'Oklahoma's
story.'" Id. at 1471. Finding that the values of due process and
fairness required that the trial of the Oklahoma City bombing
suspects be transferred to Denver,109 Chief Judge Matsch
pertinently described the profound potential for prejudice in this
situation:
Pride is defined as satisfaction in an
achievement, and the people of Oklahoma are
well deserving of it. But it is easy for those
feeling pride to develop a prejudice . . .
[t]he existence of [which] is difficult to
prove. Indeed it may go unrecognized in those
who are affected by it. The prejudice that
may deny a fair trial is not limited to a bias
or discriminatory attitude. It includes an
impairment of the deliberative process of
deductive reasoning from evidentiary facts
resulting from an attribution to something not
included in the evidence. That something has
its most powerful effect if it generates
strong emotional responses and fits into a
pattern of normative values.
Id. at 1472 (internal quotation marks and citation omitted).
Similarly, the Supreme Court has noted that "[t]he influence that
109 The defendant and government in McVeigh agreed that the trial
could not take place in Oklahoma City, in part because "obtaining
an impartial jury in Oklahoma City would be 'chancy.'" McVeigh,
918 F. Supp. At 1470. "The effects of the explosion on th[e]
[Oklahoma City] community [were] so profound and pervasive" that
no further consideration of that venue was necessary. Id. The
district court was called upon to then resolve the parties' dispute
about whether there was "so great a prejudice against the[]
defendants in the [entire] State of Oklahoma that they [could not]
obtain a fair and impartial trial anywhere in the state." Id.
- 206 -
lurks in an opinion once formed is so persistent that it
unconsciously fights detachment from the mental processes of the
average man." Irvin, 366 U.S. at 727.
Such was the state of the Eastern Division. Amongst an
entire community so deeply affected by these crimes, the "intensity
of the humanization of the victims" by the media, McVeigh, 918
F. Supp. at 1472, the heavy emphasis on grief, and the powerful
portrayals of people struggling to make sense of this calamity,
imprinted a pervasive and insurmountable prejudice in the
community psyche. In such circumstances, an individual juror "may
have an interest in concealing his own bias . . . [or] may be
unaware of it." Smith v. Phillips, 455 U.S. 209, 221-22 (1982)
(O'Connor, J., concurring). And the unconscious nature of this
impairment makes juror questionnaires and voir dire a poor means
for assessing juror impartiality. See William H. Farmer, Presumed
Prejudiced, But Fair?, 63 Vand. L. Rev. En Banc 5, 8 (2010).
The majority's "serious points against [Tsarnaev's]
venue-change arguments" lean heavily on the pretrial polling data.
See slip op. at 54-55. The majority finds this data convincing
because the pollster did not "ask respondents to judge for
themselves whether they are biased[]" and "[i]nstead . . . asked
whether Tsarnaev should get the death penalty." Slip op. at 55.
But, even though the pollster did not explicitly ask respondents
- 207 -
if they were biased,110 it is the court's (and the majority's)
dependence on this polling data to decide the venue challenge that
leaves prospective jurors as the judges of their own impartiality.
This is the very problem that the majority takes issue with in its
Patriarca analysis. See slip op. at 62, 65, 67, 72. Further, the
data cannot be relied upon to accurately identify local prejudice.
Despite the majority's conclusory claim otherwise, see slip op. at
55, the survey does not -- and cannot -- account for the fact that
the people who are most acutely affected by trauma and persistent
media coverage thereof often lack awareness of the impact this
exposure has to their decision-making capacity in the jury
deliberation room -- particularly when they are being asked to
make a decision as high-stakes as the appropriate punishment for
the individual that wreaked havoc on their lives and those of their
neighbors and communities. See McVeigh, 918 F. Supp. at 1473.
That over 92% of Boston residents admitted in the community poll
that they believed Tsarnaev was "definitely" or "probably" guilty
based on their exposure to pretrial publicity, whereas 25% less
admitted prejudgment in their juror questionnaires, highlights the
inadequacy of survey polling to determine local prejudice in
110 A strange question indeed; most people asked during a vote-
by-mail poll would not likely respond to such a question by stating
that they are "biased," especially because most would not be aware
that they may be so.
- 208 -
circumstances such as existed in the Eastern Division, and the
potential inability of jury selection to sufficiently weed out the
prejudices in this venue.
This "impairment of the deliberative process,"
particularly during a moment such as jury deliberations in a case
of such prominence, is not easily quantifiable. Again, I invoke
Chief Judge Matsch:
The possible prejudicial impact of this type
of publicity is not something measurable by
any objective standards. . . . [S]urveys are
but crude measures of opinion at the time of
the interviews. Human behavior is far less
knowable and predictable than chemical
reactions or other subjects of study by
scientific methodology. There is no
laboratory experiment that can come close to
duplicating the trial of criminal charges.
Id.111
Given the unknowing nature of the prejudicial effect of
inflammatory pretrial publicity on severely afflicted people, see
Irvin, 366 U.S. at 727; McVeigh, 918 F. Supp. at 1472-73, and the
great potential for equivocation by individual jurors impacted by
these outside influences, see Smith, 455 U.S. at 221-22, it must
be given little weight that polling data showed somewhat similar
111 I recognize that the district judge's exercise of discretion
in McVeigh does not itself mean that the district court's decision
not to move Tsarnaev's trial was necessarily an abuse. But, given
its similarity to our situation, it certainly cannot be ignored in
the exercise of our review.
- 209 -
(but still lower) numbers regarding a proclivity for the death
penalty in Springfield and New York than in Boston.112
The majority next declares, again without record
support, that "most of the publicity was true." Slip op. at 55.
Much of the local publicity included not only factual narrations
of the events that transpired but also commentary and opinions,
such as the aforesaid references to him as a "monster,"
"terrorist," "evil," the "devil," and other similar derogations.
I have no doubt that other media sources either did the same or
quoted others who did.113 Even if these are appropriate adjectives
to describe Tsarnaev, this does not mean the descriptors did not
have a prejudicial impact on the venire's ability to make decisions
based solely on what was presented in court. See, e.g., Rideau,
373 U.S. at 725-26 (televised confession was factual but prejudicial).
112 The majority strangely and misleadingly finds convincing that
"fewer [survey] respondents preferred life without parole in
Springfield (45.4%) than in Boston (51.2%)." See slip op. at 55.
But the lower percentage of Springfield respondents preferring
life without parole does not mean that a higher percentage of
Springfield respondents preferred the death penalty than in
Boston. In fact, the opposite is true: a higher percentage of
respondents preferred the death penalty in Boston than in
Springfield, Manhattan, or Washington, D.C. The fact that fewer
respondents in Springfield stated a preference for life without
parole than in Boston is explained by the fact that a higher
percentage of respondents in Springfield (19.5%) refused to
provide an answer to the question than in Boston (12.1%).
113 See, e.g., Planas et al., supra n.103 (calling Tsarnaev a
"punk" and a "bad guy").
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The same is true of the reports that public officials believed
Tsarnaev should die, and the detailed chronicling of the pain of
the survivors and decedents' families. These reports may reflect
reality, but the media's emphasis of these topics carried a
significant risk of disturbing potential jurors' impartiality.
This publicity was anything but "trivial."
I do not mean to imply that every juror was being
disingenuous or deceitful in their self-declared impartiality.
But our "[t]rust in their ability" to disregard this prejudicial
information "diminishes when the prior exposure . . . evokes
strong emotional responses or such an identification with those
directly affected by the conduct at issue that the jurors feel a
personal stake in the outcome." McVeigh, 918 F. Supp. at 1473.
Our own biases often go unrecognized or ignored. The risk of
implicit biases in this case was impermissibly high, particularly
with the defendant's life on the line.
d. The "Skilling" factors
The majority suggests that an application of the
eponymous Skilling factors counsels against an abuse-of-discretion
finding. See slip op. at 56-58. As I noted in my mandamus dissent,
I find the comparison between this case and Skilling to be
inapposite. See Tsarnaev II, 780 F.3d at 42 (Torruella, J.,
dissenting). Skilling involved "neither heinous nor sensational"
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facts, but rather white-collar economic crimes which impacted only
a minority of potential jurors in the Eastern District of Texas.
561 U.S. at 370, 384 (noting that the "jurors' links to Enron were
either nonexistent or attenuated"); see also United States v.
Skilling, 554 F.3d 529, 560 n.47 (5th Cir. 2009), aff'd in part,
vacated in part, 561 U.S. 358 (2010) (noting an opinion poll that
found that one in three Houstonians knew someone harmed by what
happened at Enron). Contrast that with the facts in this case: a
terrorist attack with explosives at the iconic Boston Marathon; a
widespread and crowdsourced search for the suspects; the execution
of a police officer; a carjacking; a shootout on a suburban street;
a shelter-in-place order; a televised manhunt; a standoff around
the Watertown boat; the televised removal of a bloodied defendant
from that boat; and a traumatized Eastern Division.
Even assuming arguendo the applicability of the Skilling
factors to this terrorism case, I would find that they weigh in
Tsarnaev's favor. First, the Skilling Court looked to the "size
and characteristics of the community in which the crime occurred,"
noting that Houston was the fourth most populous city in the United
States with a "large, diverse pool of potential jurors." 561 U.S.
at 382. Boston is not even in the top twenty in terms of population
size. See United States Census Bureau, Population Division, Annual
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Estimates of City and Town Population Totals: 2010-2019 (May 21,
2020).
Equally if not more important are the characteristics of
the community. See Casellas-Toro, 807 F.3d at 387 (commenting that,
although Puerto Rico has a population of approximately three million,
it is an "insular community that is highly susceptible to the impact
of local media" and "seem[s] to be a small island" (internal quotation
marks and citation omitted)). The Court in Skilling noted that only
12.3% of Houstonians were able to name Skilling as an Enron
executive they believed guilty of crimes, and 43% had never heard
of him. This case is again easily distinguishable. Here,
"Tsarnaev and the Boston Marathon bombings [were] one and the
same." Tsarnaev II, 780 F.3d at 42 (Torruella, J., dissenting);
see also Def.'s Reply to Opp'n to Mot. to Change Venue at 4, United
States v. Tsarnaev, No. 13-cr-10200-GAO (D. Mass. filed Aug. 7,
2014), ECF No. 461-23 (showing that approximately 90% of survey
participants in Boston recognized the name Dzhokhar Tsarnaev, as
opposed to 58% in Springfield, MA, 44 % in Manhattan, and 34% in
Washington, D.C.). For instance, 99.7% of the voir dire had been
exposed to pretrial publicity about the case as every local news
sources reported about it, and two thirds admitted in their juror
questionnaires that they believed Tsarnaev to be guilty.
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Moreover, terrorism targets the very fabric of the
community, seeking to tear it apart. We should thus be especially
sensitive to the community response here as being indicative of
its sense of communal victimhood -- a marker perhaps of its
tightness as a judicial division. The Greater Boston area
"band[ed] together"114 in response to this crisis, a "close-knit
place" where "we grieve for [our neighbors]."115 At that moment,
the Eastern Division was "BOSTON STRONG."116
Second, the news stories in Skilling "contained no
confession or other blatantly prejudicial information." 561 U.S.
at 382. This case involved both. Not only did the media print
Tsarnaev's message in the boat admitting his crimes, it also
reported information about his non-Mirandized hospital confession
to the FBI. The news stories also contained blatantly prejudicial
opinions that Tsarnaev should die.
114 Davis, III, supra n.85.
115 Jeff Brady, 8-Year-Old Boy Among Those Killed in Boston
Bombing, NPR (Apr. 16, 2013, 3:00 PM),
https://www.npr.org/2013/04/16/177507497/8-year-oldboy-
among-those-killed-in-boston-bombing (last visited July 10, 2020
(reporting about speech by then-Mayor Menino on the day after the
bombing).
116 My intention is not to cast the "BOSTON STRONG" campaign in a
negative light. Quite the opposite, the community's recovery
efforts have my highest admiration.
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Third, the Skilling Court looked to the media attention
surrounding Skilling's crime and trial, noting that "the decibel
level . . . diminished somewhat" over the four years between
Skilling's crime and his trial. Here, although there was a slight
diminution of pretrial publicity over the twenty-one months
between the bombings and the commencement of jury selection, the
reporting continued to be omnipresent.117
117 The majority finds the time that elapsed between the bombings
and Tsarnaev's trial to be "closer in magnitude to the four years
in Skilling (a point cutting against a venue change) than the two
months in Casellas-Toro (a point favoring a venue change)." Slip
op. at 57. But the majority misconstrues our precedents.
Casellas's trial did not occur two months after his crime was
committed, but rather two and a half months after the major event
that kept him in the media spotlight -- his televised sentencing
for the murder of his wife. Casellas-Toro, 807 F.3d at 383. Like
Tsarnaev, Casellas allegedly lied to the FBI almost two years prior
to his trial for that crime. Id. at 382 (noting that Casellas
made a false report to the FBI on June 17, 2012), 384 (stating
that voir dire began on April 7, 2014).
Like Casellas, Tsarnaev remained a focal point for the media since
he committed these crimes. Several well-publicized events ensured
that he remained at center stage. In January 2014, the government
announced that it would seek the death penalty, which drew an
enormous media response. In April 2014, on the one-year
anniversary of the marathon bombings (the week preceding the 2014
running of the Boston Marathon -- which itself garnered
extraordinary attention), the City of Boston held a ceremony to
pay tribute to the Boston Marathon bombing victims. The event
featured local and national politicians, clergymen, and the
victims and their families. Amongst the attendees (and speakers)
was Vice President Joe Biden. See John R. Ellement & Martin
Finucane, At Tribute, Marathon Bombing Victims, Survivors Honored,
Boston Globe (Apr. 15, 2014),
https://www.bostonglobe.com/metro/2014/04/15/tribute-boston-
marathon-victims-underway/xIxOSTNzhaPDpRXlaiXnrN/story.html (last
visited July 10, 2020).
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Finally, the Skilling Court looked to the jury verdict,
finding that the jury's not-guilty findings on nine of the twenty-
eight counts in the case "yielded no overwhelming victory for the
government." 561 U.S. at 375, 383. Here, because Tsarnaev's
counsel admitted Tsarnaev's guilt during opening and closing
statements, the jury verdict finding Tsarnaev guilty on all thirty
counts neither supports nor refutes a presumption of impartiality.
The focus on Tsarnaev continued into the next year. In early
January 2015, gunmen attacked the Paris office of satirical
newspaper Charlie Hebdo. The media took the opportunity to draw
comparisons between that attack and the Boston Marathon bombings.
See, e.g., Kevin Johnson, Paris and Boston Attacks Pose Striking
Parallels, USA Today, Jan. 9, 2015,
http://www.usatoday.com/story/news/nation/2015/01/08/paris-
boston-attacks/21445461/ (last visited July 10, 2020). That same
month, pictures went viral of a man clearing snow off of the Boston
Marathon finish line following a blizzard. Eastern Division
residents hailed him as a "hero." Anastasia Williams & Michele
McPhee, Blizzard Mystery Solved: Man Who Shoveled Marathon Finish
Line Revealed, ABC News (Jan. 28, 2015),
https://abcnews.go.com/US/boston-blizzard-mystery-solved-man-
shoveled-marathon-finish/story?id=28550626 (last visited July 10,
2020). Also that month, Tsarnaev's friend pled guilty to charges
related to the destruction of evidence in this case and lying to
the FBI. See, e.g., Milton J. Valencia, Tsarnaev Friend to Plead
Guilty, Boston Globe (Jan. 13, 2015),
http://www.bostonglobe.com/metro/2015/01/13/judge-sets-jan-plea-
hearing-for-friend-boston-marathon-
bombers/SPbRARYlkYS5XYJMrZNFcM/story.html (last visited July 10,
2020).
Finally, on the first morning of jury selection, the press reported
that Tsarnaev unsuccessfully offered to plead guilty in exchange
for the government's agreement not to seek the death penalty. See,
e.g., Evan Perez, Boston Bombing Trial Lawyers Fail to Reach Plea
Deal, CNN (Jan. 5, 2015),
https://www.cnn.com/2015/01/05/politics/dzhokhar-tsarnaev-trial-
plea-deal-fails/index.html (last visited July 10, 2020).
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See, e.g., Luong v. State, 199 So. 3d 139, 148 (Ala. 2014) ("[I]n
light of the facts of this case, in particular Luong's admission
that he threw each of his children off the bridge, the fact that
Luong was not acquitted of any of the charged offenses does not
either support or rebut a presumption of jury bias or
impartiality.").
The majority's comparison of the nine acquittals in
Skilling to Tsarnaev's jury's decision to recommend death for six
of the seventeen death-eligible counts is mind-boggling. See slip
op. at 57-58. There is a monumental distinction between the full
acquittals in Skilling -- resulting in no punishment for that
defendant, and this jury's decision about which of the two most
extreme punishments in our criminal justice system to recommend
for each count. The jury's decision to recommend that Tsarnaev
receive six death sentences and serve eleven life sentences,
instead of recommending that Tsarnaev be killed on seventeen
separate counts, does not indicate a lack of prejudice. Far from
it. A criminal defendant can only be put to death once. The
Supreme Court has noted that the decision of whether to recommend
a death sentence "is mostly a question of mercy." Kansas v. Carr,
136 S. Ct. 633, 642 (2016). As Tsarnaev points out, "six separate
death sentences can hardly be considered an act of mercy such as
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to establish that jurors were either unaffected by the pretrial
publicity or willing to ignore the community sentiment."
Tsarnaev was entitled to a presumption of prejudice.
2. The Government Cannot Overcome the Presumption of Prejudice
The parties quarrel over whether the presumption of
prejudice is rebuttable. In Casellas-Toro, this court assumed
without deciding that the presumption was rebuttable, and I follow
the same track. 807 F.3d at 388-90. Yet, even under this
assumption, the government cannot prevail.
The government argues that it can rebut that presumption
by showing that the district court was able to ascertain the
effects of the potential jurors' exposure to extensive pretrial
publicity and excuse those that were incapable of setting any
prejudice aside. Not so. As today's majority has explained, by
refusing to ask prospective jurors content-specific questions
about what they had read and heard, the district court was unable
to identify biases or prejudices that may have resulted from that
exposure. See Patriarca, 402 F.3d at 318. The district court
relied on the venire's self-declarations of impartiality, an error
of law and an abuse of discretion.
The government also cannot show that the district court
seated an impartial jury because the district court failed to
investigate Tsarnaev's "colorable" and "plausible" claims of
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juror-misconduct. When a defendant raises such a claim, regardless
of timing, the district court has the "unflagging duty" to
investigate. See United States v. French, 904 F.3d 111, 117 (1st
Cir. 2018), cert. denied sub nom. Russell v. United States, 139
S. Ct. 949 (2019) (quoting United States v. Zimny, 846 F.3d 458,
464 (1st Cir. 2017)). The district court need not hold a full
evidentiary hearing, but it must fashion and "even-handedly
implement . . . a sensible procedure reasonably calculated to
determine whether something untoward had occurred." United States
v. Paniagua-Ramos, 251 F.3d 242, 249-50 (1st Cir. 2001). The
court's procedural discretion does not include a refusal to conduct
any inquiry whatsoever. Zimny, 846 F.3d at 465.
But that is precisely what the district court did.
Tsarnaev presented a colorable claim that Juror 286 knowingly
withheld from the court the fact that she posted twenty-two online
comments mourning the death of Martin Richard, praising law
enforcement officers (three of whom would later testify at trial),
expressing "BOSTON STRONG" civic pride, and calling Tsarnaev a
"piece of garbage." Tsarnaev further showed that Juror 286 may
have lied on her juror questionnaire and during voir dire about
sheltering in place with her family. And Tsarnaev presented a
second plausible claim that Juror 138 both refused to follow simple
but important court rules and intentionally withheld from the court
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his participation in social media conversations. In the comments
thread on his Facebook page, on which he continued to engage, his
friend urged him to "[p]lay the part so u get on the jury then
send [Tsarnaev] to jail where he will be taken care of." The
district court's refusal to inquire -- at the government's behest
-- left much to be desired in the way of certainty about these
jurors' impartiality.
Finally, a review of the seated jurors' questionnaires
and voir dire transcripts confirms that the government cannot rebut
the presumption in this case. The government admits that there is
a statistically significant correlation between the prospective
jurors' media exposure and their opinions to guilt, and ten of the
twelve seated jurors had been exposed to "a moderate amount" or "a
lot" of publicity. Prior to trial, three of the twelve voting
jurors admitted to having predetermined Tsarnaev's guilt, and
another two stated that they believed Tsarnaev participated in the
bombings. See Juror 83: "obviously he was involved in something";
Juror 229: "[f]rom the media" "I suppose that we knew that he was
involved"; Juror 349: marked on juror questionnaire belief that
Tsarnaev was guilty, and stated on voir dire that from "so much
media coverage" "anybody would think that [Tsarnaev was
involved]"; Juror 395: marked on juror questionnaire belief that
Tsarnaev was guilty; Juror 487: marked on juror questionnaire
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belief that Tsarnaev was guilty, and explained on voir dire that
this belief came from what he had seen on the news. Likewise,
three of the six alternate jurors stated that they believed that
Tsarnaev was involved. See Juror 552: "[F]rom the videos I saw,
it appeared that he was part and parcel of perhaps depositing those
devices"; Juror 567: "I do believe that he was somewhat involved";
Juror 588: "I believe there's some involvement somewhere, but I
don't know what it is." And, as just discussed, two seated jurors
were at least inconsistent -- if not deliberately untruthful -- in
their responses during jury selection, calling into question their
declarations that they had not yet formed an opinion about
Tsarnaev's guilt. See Sampson v. United States, 724 F.3d 150, 164
(1st Cir. 2013) ("The voir dire process . . . is frustrated when
a prospective juror is dishonest. Both the juror's dishonesty and
her motivation for that dishonesty may cast doubt upon her
impartiality.").
Although all the seated jurors declared that they could
be fair and impartial and decide the case solely on the evidence
presented in court, little weight can be given to such declarations
by community members so impacted by the crimes and the subsequent
pretrial publicity. "Natural human pride would suggest a negative
answer to [a question of] whether there was a reason the juror
could not be fair and impartial." United States v. Dellinger, 472
- 221 -
F.2d 340, 375 (7th Cir. 1972); see also Irvin, 366 U.S. at 728
("[The] psychological impact requiring such a declaration before
one's fellows is often its father."). In sum, the government
cannot show that the jury that convicted Tsarnaev and recommended
that he be put to death was impartial. The government has
therefore failed to rebut the presumption of prejudice.
C. Harmless as to Guilt, Not as to Sentencing
I agree with the majority that the district court's abuse
of discretion was harmless as to Tsarnaev's guilt but not as to
his sentence. See slip op. at 72-73, 74 n.33. Tsarnaev's counsel
admitted his participation in these crimes during both opening and
closing statements, and he does not contend on appeal that he would
not have made these admissions had his trial taken place elsewhere.
Sitting in its expanded role under the Federal Death Penalty Act,
18 U.S.C. §§ 3591-99, a sentencing jury was required "to make a
moral judgment . . . after consideration of aggravating and
mitigating circumstances" about whether Tsarnaev deserved to live
out his natural life in custody or be killed by the government.
See McVeigh, 918 F. Supp. at 1474. The question of whether these
aggravating circumstances outweigh the mitigating factors is one
of " mercy" for the sentencing jury. See Carr, 136 S. Ct. at 642.
With a jury so intensely impacted by the charged crimes,
and so exposed to inflammatory pretrial publicity -- including
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reports detailing the extreme anguish of their neighbors and
repeated calls for Tsarnaev to be sentenced to death -- I cannot
say with any degree of certainty that the jurors did not possess
a "predilection toward that penalty." McVeigh, 918 F. Supp. at
1474.
"With his life at stake, it is not requiring too much
that [a criminal defendant] be tried in an atmosphere undisturbed
by so huge a wave of public passion . . . ." Irvin, 366 U.S. at
728. The government cannot show that the district court's abuse
of discretion was harmless beyond a reasonable doubt as to
Tsarnaev's sentence. See 18 U.S.C. § 3595(c)(2), (c)(2)(C). For
this reason, I agree that Tsarnaev's death sentences must be
vacated and the case remanded to the district court for a
sentencing retrial.
II. Closing Remarks
In dissent on Tsarnaev's second mandamus petition, I
expressed my concern that -- in a case having this magnitude of
press coverage and widespread dissemination of information -- a
subsequent jury on retrial would have been exposed to the evidence
(and results) of the first trial and would know that the new trial
was the result of a post-conviction reversal. Tsarnaev II, 780
F.3d at 46 (Torruella, J., dissenting). My concern has and very
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likely will come to fruition.118 Because the majority rules in the
manner in which it does on the issue of venue, I also maintain
these concerns for future cases. The majority's reasoning cripples
Rule 21(a) of the Federal Rules of Criminal Procedure and
undermines the due process and impartiality principles of the Fifth
and Sixth Amendments. I asked a simple question in 2015 that is
still fitting, and I repeat it today: "If not here, when?" Id. at
45.
118 Again, I make no judgment about whether Boston is a proper
venue for a subsequent sentencing retrial. That determination is
time and place specific and must be made by the district court in
the first instance at that retrial.
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