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No. 16-6001 UNITED STATES OF Case: 16-6001 Document: 00117457135 Page: 1 Date Filed: 06/27/2019 Entry ID: 6264016 No. 16-6001 IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT _________________________ UNITED STATES OF AMERICA, Appellee, v. DZHOKHAR A. TSARNAEV, Defendant–Appellant. _________________________ On Appeal from the United States District Court for the District of Massachusetts, No. 1:13-CR-10200 (Hon. George A. O’Toole) _________________________ REDACTED BRIEF FOR APPELLEE THE UNITED STATES _________________________ ANDREW E. LELLING BRIAN A. BENCZKOWSKI United States Attorney Assistant Attorney General NADINE PELLEGRINI MATTHEW S. MINER Assistant United States Attorney Deputy Assistant Attorney General District of Massachusetts WILLIAM A. GLASER JOHN C. DEMERS Attorney, Appellate Section Assistant Attorney General Criminal Division National Security Division U.S. Department of Justice 950 Pennsylvania Ave., N.W. JOSEPH F. PALMER Washington, DC 20530 Attorney (202) 532-4495 National Security Division [email protected] Case: 16-6001 Document: 00117457135 Page: 2 Date Filed: 06/27/2019 Entry ID: 6264016 TABLE OF CONTENTS TABLE OF CONTENTS ..................................................................................................... i TABLE OF AUTHORITIES ............................................................................................ xii INTRODUCTION................................................................................................................ 1 STATEMENT OF JURISDICTION ................................................................................. 2 ISSUES PRESENTED ......................................................................................................... 3 STATEMENT OF THE CASE .......................................................................................... 5 A. Procedural History .......................................................................................... 5 B. Relevant Facts .................................................................................................. 6 1. While a student at the University of Massachusetts Dartmouth, Tsarnaev quietly adopted a radical Islamic ideology. ................................................................................................ 7 2. Sometime in late 2012 or early 2013, Tsarnaev and his brother hatched a plot to commit an act of terrorism. ................. 10 3. On April 15, 2013, Tsarnaev and his brother detonated two bombs at the Boston Marathon, killing three people— Krystle Campbell, Lingzi Lu, and Martin Richard—and wounding hundreds. .......................................................................... 13 4. After the bombing, Tsarnaev returned to college and acted as if nothing happened. ..................................................................... 25 5. After authorities released their pictures, Tsarnaev and his brother killed Sean Collier, a Massachusetts Institute of Technology policeman, in an attempt to steal his gun. ................. 27 6. Tsarnaev and his brother carjacked a sport utility vehicle and kidnapped the owner at gunpoint. ........................................... 29 7. Police tracked Tsarnaev and his brother to a residential street in Watertown, where they engaged in a gun battle with police and detonated several improvised bombs. ................. 32 i Case: 16-6001 Document: 00117457135 Page: 3 Date Filed: 06/27/2019 Entry ID: 6264016 8. Tsarnaev hid for 18 hours in a shrink-wrapped boat, where he wrote a jihadist justification of the attacks. ............................... 37 9. Authorities arrested Tsarnaev on April 19, four days after the bombing. ....................................................................................... 39 10. A jury convicted Tsarnaev on 30 counts and recommended the death penalty on six counts. ....................................................... 40 SUMMARY OF ARGUMENT ......................................................................................... 44 ARGUMENT ....................................................................................................................... 56 I. The District Court Did Not Abuse Its Discretion by Denying Tsarnaev’s Motions for Change of Venue. ............................................................................... 56 A. Background .................................................................................................... 57 B. Standard of review ......................................................................................... 63 C. Tsarnaev was tried by an impartial jury. ..................................................... 63 1. Tsarnaev cannot establish a presumption of prejudice. ................ 64 a. The extent of the venire’s exposure to media coverage does not support a presumption of prejudice. ................................................................................. 67 b. Statements by excused venire members do not establish a presumption of prejudice. .................................. 80 c. The Skilling factors indicate that prejudice should not be presumed. ........................................................................... 84 i. Large and diverse jury pool ....................................... 84 ii. Lack of confession or blatantly prejudicial information .................................................................. 88 iii. Lapse of nearly two years between crime and trial ................................................................................ 94 iv. Jury’s decision not to impose death on 11 of 17 eligible counts ......................................................... 96 ii Case: 16-6001 Document: 00117457135 Page: 4 Date Filed: 06/27/2019 Entry ID: 6264016 d. Even if Tsarnaev could establish a presumption of prejudice, the government could rebut it. ........................... 97 2. The record does not demonstrate actual prejudice. ...................... 97 a. Excluded venire members’ views do not establish actual prejudice. ...................................................................... 98 b. The seated jurors’ views do not show actual prejudice. ............................................................................... 100 D. Federal Rule of Criminal Procedure 21 and this Court’s supervisory powers do not justify reversal. ................................................................... 106 E. The Eighth Amendment does not independently require reversal. ...... 108 II. Tsarnaev is Not Entitled to a New Trial or Remand Based on Alleged Juror Dishonesty. .................................................................................................... 109 A. Background .................................................................................................. 109 1. Juror 286 ........................................................................................... 109 2. Juror 138 ........................................................................................... 112 3. Defense motions to strike ............................................................... 116 B. Standard of review ....................................................................................... 118 C. The jurors did not make material false statements that would support challenges for cause. .................................................................................... 118 1. Juror 286’s voir dire statements do not justify a new trial. ......... 122 a. Juror 286 was not dishonest. .......................................................... 122 b. Juror 286’s tweets and sheltering in place would not have justified a for-cause strike. .............................................................. 125 2. Juror 138 was not dishonest during voir dire, and his Facebook postings did not justify a for-cause strike. .................. 128 3. The jurors’ post-trial social media comments do not indicate dishonesty or prejudice. .................................................... 131 iii Case: 16-6001 Document: 00117457135 Page: 5 Date Filed: 06/27/2019 Entry ID: 6264016 D. The district court did not abuse its discretion or plainly err by failing to conduct a more extensive inquiry. ............................................................. 132 III. The District Court Acted Within Its Discretion by Dismissing Prospective Juror 355. ............................................................................................ 136 A. Background .................................................................................................. 136 B. Standard of review ....................................................................................... 140 C. The district court reasonably concluded that Juror 355 was substantially impaired by his views regarding the death penalty. ................................. 140 1. The deferential standard applies. ................................................... 143 2. The district court did not abuse its discretion. ............................. 148 3. Tsarnaev’s other assertions have no merit. ................................... 152 IV. The District Court Appropriately Exercised Its Discretion by Limiting the Questions Asked on Voir Dire. ...................................................................... 154 A. Background .................................................................................................. 154 B. Standard of review ....................................................................................... 159
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