United States v. Tsarnaev

• Decision Date: 15 January 2016
• Docket Number: CRIMINAL NO. 13-10200-GAO
• Parties: United States of America, v. Dzhokhar A. Tsarnaev, Defendant.
• Court: U.S. District Court — District of Massachusetts

157 F.Supp.3d 57

United States of America,

v.Dzhokhar A. Tsarnaev, Defendant.

CRIMINAL NO. 13-10200-GAO

United States District Court, D. Massachusetts.

Signed January 15, 2016

Aloke Chakravarty, Nadine Pellegrini, William D. Weinreb, United States Attorney's Office, Boston, MA, Steven D. Mellin, United States Department of Justice, Washington, DC, for United States of America.

Miriam Conrad, Timothy G. Watkins, William W. Fick, Federal Public Defender Office, Boston, MA, Judy Clarke, Clarke & Rice, APC, San Diego, CA, David I. Bruck, Lexington, VA, for Defendant.

OPINION AND ORDER

O'TOOLE, District Judge

Dzhokhar Tsarnaev was tried on a thirty-count indictment arising out of the bombings at the Boston Marathon on April 15, 2013. Jury selection for his trial began January 5, 2015. On April 8, 2015, the jury returned a verdict in the first phase of his capital trial finding him guilty under all counts. The maximum penalty for seventeen of the crimes was death. On May 15, 2015, the jury returned its verdict in the second phase of the trial, deciding that the death penalty should be imposed on six of the seventeen capital counts, but not on the other eleven. On June 24, 2015, the Court sentenced the defendant to death on those six counts in accordance with the jury's verdict and to various terms of imprisonment on the remaining counts.

On July 6, 2015, the defendant moved for a new trial in the interests of justice pursuant to Federal Rule of Criminal Procedure 33

and, in the alternative, for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. In his motion, he reiterates some grounds for such relief that he had previously raised before or during trial. As to those grounds that are repeated from prior written or oral motions, both aspects of the present motion are denied for the same reasons the prior motions were denied. As to most of them, no further discussion is necessary; the issues are preserved for the defendant on appeal.

He repeats his objection to trial in this District, and the reasons for denying his renewed attack on venue are discussed below.

Lastly, he argues that all of his convictions under 18 U.S.C. § 924(c)

for carrying a firearm during and in relation to a crime of violence must be vacated. His argument is based first on issues he claims arise from the Supreme Court's decision, issued days after he was formally sentenced, declaring a portion of the Armed Career Criminal Act unconstitutionally vague. See Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). He also argues that his § 924(c) convictions must be set aside because it cannot properly be determined whether the various underlying crimes were “crime[s] of violence” in the necessary sense.

The Court permitted an extended briefing schedule and, after oral argument on a portion of the defendant's motion, allowed the parties to file supplemental memoranda. This Opinion and Order resolves the issues raised by the post-trial motion.

I. Venue

The issue of venue has been previously litigated in this case and extensively addressed in opinions of this Court and of the Court of Appeals. The defendant now again renews his venue argument, contending generally that local media coverage, local events, and information or postings on social networks during the course of the trial should raise a presumption of prejudice¹ and require a conclusion that the District of Massachusetts was an improper venue for his trial. The defendant's opening brief contains only limited references to legal authority, but he appears to be raising the claim under both the Sixth Amendment to the Constitution and Federal Rule of Criminal Procedure 21(a)

, although he does not distinguish between them.

In Skilling v. United States

, the Supreme Court identified four factors generally relevant to a determination whether a presumption of prejudice should be indulged: (1) the size and characteristics of the community in which the crime occurred; (2) the nature of the publicity surrounding the case; (3) the time between the crime and the trial; and (4) whether the jury's decision indicated bias. 561 U.S. 358, 382–84, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010) ; see also United States v. Casellas–Toro , 807 F.3d 380, 386 (1st Cir.2015) ; In re Tsarnaev , 780 F.3d 14, 20–21 (1st Cir.2015) (per curiam).² The defendant does not expressly articulate a legal framework for analyzing his claim, but it appears he seeks to advance an argument related primarily to the second and third factors. For the sake of completeness, in this post-trial analysis I will address all four Skilling factors.

A. Size and Characteristics of the Community

As has been previously described, see In re Tsarnaev , 780 F.3d at 21

; United States v. Tsarnaev , Cr. No. 13–10200–GAO, 2014 WL 4823882, at *2 (D.Mass. Sept. 24, 2014), Boston is located in a large, diverse metropolitan area. The geographic region from which the jury was drawn, the Eastern Division of the District of Massachusetts, includes about five million people living not just in Boston, but also in smaller cities and towns, encompassing urban, suburban, rural, and coastal communities.³ Residents in the area obtain their daily news from a variety of sources. In re Tsarnaev , 780 F.3d at 21. In light of these facts, this factor weighs against a finding of presumed prejudice. Compare Skilling , 561 U.S. at 382, 130 S.Ct. 2896

(stating that “large, diverse pool” of approximately 4.5 million eligible jurors in Houston area made the “suggestion that 12 impartial jurors could not be empaneled ... hard to sustain”), and United States v. Yousef , No. S12 93 CR. 180 (KTD), 1997 WL 411596, at *3 (S.D.N.Y. July 18, 1997) (noting in pre-Skilling case that the district was one of the “largest and most diverse in the country” (quoting United States v. Salameh , No. S5 93 Cr. 0180 (KTD), 1993 WL 364486, at *1 (S.D.N.Y. Sept. 15, 1993) )), with Rideau v. Louisiana , 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) (remarking that community where the crime occurred was a small parish of only 150,000 people), and Casellas–Toro , 807 F.3d at 386–87 (explaining district court acknowledgement that, although Puerto Rico has a population of 3 million people, a fact tending to mitigate the potential for prejudice, Puerto Rico is “a compact, insular community ... highly susceptible to the impact of local media” (citation omitted)).

B. Nature of the Publicity

The main basis for the defendant's motion appears to be the extent and nature of the publicity concerning the case itself and the events at issue in it. In his post-trial motion, he focuses largely on media coverage concerning observances of the anniversary of the bombings, the 2015 Boston Marathon itself, and publicity about victims; coverage of foreign family witnesses; physical surroundings of the courthouse; and social media.⁴

i. Marathon-related media coverage

The defendant relies heavily on local marathon-related media coverage. It is certainly true that the local media gave substantial coverage to the anniversary of the bombings, its victims, and the 2015 marathon. What the defendant disregards, however, is the national—and international—interest in those same events and people. This was not a crime that was unknown outside of Boston. To the contrary, media coverage of the bombings when they occurred was broadcast live around the world over the Internet and on television. Contrast Casellas–Toro , 807 F.3d at 388

(noting that defendant “would be relatively unknown outside of Puerto Rico”). The defendant's own pretrial poll, for instance, show that even in his preferred venue, Washington, D.C., those polled overwhelmingly were familiar with the bombings.⁵

(Reply to Gov't's Opp'n to Def.'s Mot. for Change of Venue and Submission of Supp. Material in Supp. Ex. 4F at 4 (dkt. no. 461-23)); see also In re Tsarnaev , 780 F.3d at 16

(96.5% of survey respondents).

Nor did the crime affect an event about which only Bostonians are concerned. Although the Boston Marathon is an important event in the city and region, it is also an iconic event known worldwide. According to testimony by the executive director of the Boston Athletic Association, the organization which hosts the Boston Marathon, the race was originally known as “America's Marathon.” (Mar. 4, 2015 Tr. of Jury Trial—Day Twenty-Seven at 69 (dkt. no. 1528).) Because “it is the only marathon outside of the Olympic Games and the world championships for which one needs to qualify in order to run, ... it's an aspiration for a great many people.” (Id. at 68.) It “attracts some of the finest competitors in the world.” (Id. at 70.) The approximately 27,000 registered runners come from all 50 states and many countries. (Id. at 68, 75.) At least 40% of them are from “outside Massachusetts and New England.” (Id. at 75.) Similarly, spectators include not only people from the Boston area but also many visitors from elsewhere, coming to watch friends and family members participating in the race. (Id. at 73.) Like the Olympic Games, the event receives worldwide media coverage. In recent years, approximately 1,000 media credentials have been issued to representatives of about 80 registered news organizations. (Id. at 80.) The marathon is broadcast live locally, nationally, and internationally to about 20 countries, and it is also live-streamed over the Internet. (Id. at 80-81.)

Not surprisingly, then, the pretrial and trial proceedings were covered not only locally but also nationally and internationally. National and international news outlets comprised approximately two-thirds of the media organizations that requested one of the thirty seats reserved for media in the trial courtroom and more than one-half of the media organizations that were ultimately assigned a seat or rotating seat there. Many others followed the proceedings from overflow rooms in the courthouse. Newspapers around the world closely followed the trial as it unfolded, both in their...