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. - 3 - 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." - 4 - 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). - 5 - 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. - 6 - 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. - 7 - 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.