Petitioners Brief — United States, Petitioner v. Dzhokhar A. Tsarnaev
Supreme Court briefJun 14, 2021
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No. 20-443
In the Supreme Court of the United States
UNITED STATES OF AMERICA, PETITIONER
v.
DZHOKHAR A. TSARNAEV
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
BRIEF FOR THE UNITED STATES
ELIZABETH B. PRELOGAR
Acting Solicitor General
Counsel of Record
JOHN C. DEMERS
Assistant Attorney General
NICHOLAS L. MCQUAID
Acting Assistant Attorney
General
ERIC J. FEIGIN
Deputy Solicitor General
CHRISTOPHER G. MICHEL
MICHAEL R. HUSTON
Assistants to the Solicitor
General
WILLIAM A. GLASER
JOSEPH F. PALMER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTIONS PRESENTED
1. Whether the court of appeals erred in concluding
that respondent’s capital sentences must be vacated on
the ground that the district court, during its 21-day voir
dire, did not ask each prospective juror for a specific
accounting of the pretrial media coverage that he or she
had read, heard, or seen about respondent’s case.
2. Whether the district court committed reversible
error at the penalty phase of respondent’s trial by excluding evidence that respondent’s older brother was
allegedly involved in different crimes two years before
the offenses for which respondent was convicted.
(I)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 2
Statutory provisions involved ...................................................... 2
Statement:
A. Respondent’s crimes ................................................. 2
B. Pretrial proceedings ................................................. 6
1. Venue challenges and jury selection................. 7
2. Dispute over Waltham evidence ..................... 11
C. Trial and sentencing ............................................... 13
D. Court of appeals’ decision ....................................... 15
Summary of argument ............................................................... 16
Argument:
I. The court of appeals erred in applying an inflexible
voir dire rule to invalidate respondent’s capital
sentences ........................................................................ 19
A. The district court’s extensive jury-selection
procedures appropriately and effectively
ensured an impartial jury .................................... 20
1. A juror can be impartial even if he or she
has seen, and formed opinions based on,
pretrial publicity ............................................... 21
2. The district court’s voir dire procedures
here were appropriately tailored to
produce an impartial jury ................................ 24
B. The court of appeals erred in relying on a
novel, inflexible, and unsupported voir dire
rule to invalidate respondent’s capital
sentences .................................................................. 29
II. The court of appeals erred in alternatively
vacating respondent’s capital sentences based on
his brother’s alleged involvement in different
unsolved crimes.............................................................. 38
A. The district court did not abuse its discretion
in declining to admit the Waltham evidence ........ 39
(III)
IV
Table of Contents—Continued:
Page
B. Any error in the district court’s handling of
the Waltham issue was harmless beyond a
reasonable doubt ..................................................... 45
Conclusion ................................................................................... 48
Appendix — Statutory provisions ........................................... 1a
TABLE OF AUTHORITIES
Cases:
Aldridge v. United States, 283 U.S. 308 (1931) .................. 33
Beck v. Washington, 369 U.S. 541 (1962) ............................ 36
Brady v. Maryland, 373 U.S. 83 (1963) .............................. 38
Eddings v. Oklahoma, 455 U.S. 104 (1982) ......................... 39
Franks v. Delaware, 438 U.S. 154 (1978) ............................ 44
Irvin v. Dowd, 366 U.S. 717 (1961) ................................ 21, 22
Jones v. United States, 527 U.S. 373 (1999) ........................ 31
McNabb v. United States, 318 U.S. 332 (1943) ................... 29
Mu’Min v. Virginia, 500 U.S. 415 (1991) ................... passim
Patriarca v. United States,
402 F.2d 314 (1st Cir. 1968),
cert. denied, 393 U.S. 1022 (1969) ....................... 15, 29, 34
Patton v. Yount, 467 U.S. 1025 (1984) ............................... 35
Pena-Rodriguez v. Colorado,
137 S. Ct. 855 (2017) ..................................................... 23, 33
Rideau v. Louisiana, 373 U.S. 723 (1963) .......................... 35
Rosales-Lopez v. United States,
451 U.S. 182 (1981)............................................ 22, 23, 33, 36
Reynolds v. United States, 98 U.S. 145 (1879) ................... 21
Shannon v. United States, 512 U.S. 573 (1994) .................. 36
Skilling v. United States, 561 U.S. 358 (2010) ........... passim
Skipper v. South Carolina, 476 U.S. 1 (1986) ..................... 45
V
Cases—Continued:
Page
Sprint/United Mgmt. Co. v. Mendelsohn,
552 U.S. 379 (2008).............................................................. 40
Turner v. Murray, 476 U.S. 28 (1986) ................................. 23
United States v. Burr,
25 F. Cas. 49 (C.C.D. Va. 1807) ......................................... 21
United States v. Hasting, 461 U.S. 499 (1983) ................... 31
United States v. Lujan, 603 F.3d 850 (10th Cir.
2010), cert. denied, 562 U.S. 1303 (2011) .......................... 39
United States v. Mechanik, 475 U.S. 66 (1986) .................. 37
United States v. Mitchell, 502 F.3d 931 (9th Cir.
2007), cert. denied, 553 U.S. 1094 (2008) .......................... 40
United States v. Payner, 447 U.S. 727 (1980) ............... 31, 32
United States v. Sampson, 486 F.3d 13 (1st Cir.
2007), cert. denied, 553 U.S. 1035 (2008) .................... 39, 40
United States v. Umaña, 750 F.3d 320 (4th Cir.
2014), cert. denied, 576 U.S. 1035 (2015) .......................... 40
United States v. Wood, 299 U.S. 123 (1936) ........................ 32
Constitution, statutes, and rule:
U.S. Const. Amend. VI.......................................................... 21
Federal Death Penalty Act of 1994,
18 U.S.C. 3591 et seq. .......................................................... 39
18 U.S.C. 3593(c) ........................................... 16, 39, 43, 44
18 U.S.C. 3595(c)(2) ......................................................... 45
18 U.S.C. 844(i) ........................................................................ 7
18 U.S.C. 924(c) (2012) ...................................................... 7, 15
18 U.S.C. 924( j) (2012) ............................................................ 7
18 U.S.C. 2332a ........................................................................ 6
18 U.S.C. 2332f ......................................................................... 6
Fed. R. Evid. 403 ................................................................... 39
In the Supreme Court of the United States
No. 20-443
UNITED STATES OF AMERICA, PETITIONER
v.
DZHOKHAR A. TSARNAEV
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
BRIEF FOR THE UNITED STATES
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a188a) is reported at 968 F.3d 24. The court’s order
denying respondent’s first petition for a writ of mandamus (Pet. App. 216a-220a) is reported at 775 F.3d 457.
The court’s order denying respondent’s second petition
for a writ of mandamus (Pet. App. 230a-302a) is reported at 780 F.3d 14. The order of the district court
denying respondent’s motion for a new trial or judgment of acquittal (Pet. App. 303a-349a) is reported at
157 F. Supp. 3d 57. The court’s orders granting the government’s motion in limine (J.A. 649-651) and denying
respondent’s requests for production of evidence (J.A.
652-654, 656-659) are unreported. The court’s orders
denying respondent’s motions for a change of venue
(Pet. App. 190a-201a, 202a-215a, 221a-229a) are not
published in the Federal Supplement but are available
(1)
2
at 2015 WL 505776, 2015 WL 45879, and 2014 WL
4823882.
JURISDICTION
The judgment of the court of appeals was entered on
July 31, 2020. The petition for a writ of certiorari was
filed on October 6, 2020, and granted on March 22, 2021.
The jurisdiction of this Court rests on 28 U.S.C. 1254(1).
STATUTORY PROVISIONS INVOLVED
Pertinent statutory provisions are reprinted in the
appendix to this brief. App., infra, 1a-3a.
STATEMENT
Following a jury trial in the United States District
Court for the District of Massachusetts, respondent
was convicted of 30 offenses for the 2013 bombing of the
Boston Marathon—“one of the worst” acts of terrorism
on United States soil since September 11, 2001. Pet.
App. 1a. On the jury’s recommendation, the district
court imposed capital sentences for six counts and imposed life-imprisonment sentences for multiple additional counts. Id. at 18a. The court of appeals affirmed
27 of respondent’s convictions, reversed three convictions, vacated his capital sentences, and remanded for a
new penalty proceeding. Id. at 1a-188a.
A. Respondent’s Crimes
1. Respondent is a “[r]adical jihadist[ ] bent on killing Americans.” Pet. App. 1a; see J.A. 168-170, 230-234.
In late 2012 and early 2013, he told a friend that he
wanted to “bring justice for [his] people” and attain the
“[h]ighest level of Jannah [paradise],” which his friend
understood to mean that respondent wanted to wage
jihad. J.A. 117-120. He expressed the same desire to
followers on Twitter, whom he encouraged to view al
Qaeda lectures, and he publicly prayed for “victory over
3
kufr [infidels].” J.A. 121-123. The preceding year,
while in college in Massachusetts, respondent had
accessed radical propaganda including an electronic
copy of an al Qaeda publication with exhortations from
al Qaeda leaders to commit terrorist attacks in “the
West” and instructions for making bombs to “damage[ ]
the enemy.” J.A. 109, 892; see J.A. 99-112, 880-899.
On April 15, 2013, respondent and his brother
Tamerlan—a fellow jihadist—walked to the crowded
finish-line area of the Boston Marathon with backpacks
containing homemade pressure-cooker shrapnel bombs
filled with BBs and nails. J.A. 162; see J.A. 97-98 (photos). They separated, and each of them found a spot
packed with spectators to place his bomb. J.A. 162-163.
Respondent selected the sidewalk near the crowded
outdoor patio at the Forum restaurant, just behind several children watching the race. J.A. 163; see J.A. 124
(photo of respondent in backward white hat taking
position behind the children); Exhibit 22, at 0:01-7:15
(video). 1 The brothers spoke on the phone, and about 20
seconds later, Tamerlan’s bomb exploded. J.A. 164. Respondent then moved away from his own bomb, which
exploded a few seconds later. Ibid.; see Exhibit 22, at
6:45-7:55; Exhibit 1634C; Exhibit 5 (videos).
The bombs caused devastating injuries that left the
street with “a ravaged, combat-zone look.” Pet. App.
4a. “Blood and body parts were everywhere,” littered
among “BBs, nails, metal scraps, and glass fragments.”
Id. at 4a-5a. “The smell of smoke and burnt flesh filled
the air,” and “screams of panic and pain echoed
throughout the site.” Id. at 5a; see J.A. 207-212; J.A.
Pertinent video exhibits in the record are available on a multimedia drive that the government has submitted to the Clerk’s Office. Some of the cited photos and videos contain graphic content.
1
4
125-142 (photos); Exhibits 11C and 14 (videos of aftermath of first bomb); Exhibit 23, at 6:30 (video of aftermath of respondent’s bomb).
The first bomb “completely mutilated” the legs of
race spectator Krystle Campbell, causing her to bleed
to death on the sidewalk while her friend attempted to
comfort her. Pet. App. 5a (brackets omitted). Respondent’s bomb “filleted” the leg of Boston University student Lingzi Lu “open down to the bone.” Ibid. People
nearby worked frantically to save Lu’s life and pleaded
with her to “[s]tay strong,” but she died within minutes.
Id. at 5a-6a. Respondent’s bomb “also sent BBs and
nails tearing through” the body of eight-year-old Martin Richard, “cutting his spinal cord, pancreas, liver,
kidney, spleen, large intestine, and abdominal aorta,
and nearly severing his left arm.” Id. at 6a. The boy
“bled to death on the sidewalk—with his mother leaning
over him, trying to will him to live.” Ibid.
The bombs also “consigned hundreds of others to a
lifetime of unimaginable suffering.” Pet. App. 6a.
Among many other severe injuries, victims lost limbs,
their sight, or their hearing. Ibid.; see Gov’t C.A. Br.
21-25. Respondent’s bomb alone caused eight people—
including Martin Richard’s six-year-old sister—to lose
their legs. Gov’t C.A. Br. 22. His bomb also gashed the
stomach of Lingzi Lu’s friend so severely that she had
“to hold her insides in.” Pet. App. 5a.
2. Back at college the next day, respondent again
accessed the electronic al Qaeda magazine with bombmaking instructions. J.A. 103. That evening, he worked
out at the gym with a friend and tweeted, “I’m a stress
free kind of guy.” J.A. 145; see Exhibits 1181-1183 (videos).
5
Three days later, the Federal Bureau of Investigation (FBI) released surveillance-camera images of the
bombing suspects and asked the public to help find
them. Pet. App. 7a. When a friend recognized respondent as one of the bombers and messaged him, he replied,
“Better not text me my friend” and “Lol [laughing out
loud].” J.A. 146.
That night, respondent met up with Tamerlan again
and they loaded pipe bombs, a handgun, and another
shrapnel bomb into Tamerlan’s car. Pet. App. 7a. The
brothers drove past the Massachusetts Institute of
Technology, where they saw a campus police squad car.
Ibid. They approached together from behind and shot
Officer Sean Collier in the head at point-blank range
using respondent’s pistol. Ibid.; Exhibits 723-724 (videos). They tried to steal Officer Collier’s firearm, but
could not remove it. Pet. App. 7a-8a. After that, the
brothers carjacked graduate student Dun Meng at gunpoint, stole $800 from Meng’s bank account at an ATM,
and drove to a gas station. Id. at 8a; Exhibit 756 (video).
While respondent shopped for snacks, Meng made a
desperate escape, and the brothers made off in Meng’s
SUV. Pet. App. 8a; Exhibits 748, 752 (videos).
Using the tracking system in the SUV, police located
the brothers in Watertown, Massachusetts. Pet. App.
9a. When officers started following them along a residential street, the brothers exited the SUV and
attacked the officers. Ibid. Tamerlan began shooting
while respondent threw bombs—some of which exploded. Ibid. When Tamerlan’s gun stopped firing, he
charged at the officers, who wrestled him to the ground.
Ibid. Meanwhile, respondent got back into Meng’s SUV
and sped toward the officers and Tamerlan. J.A. 180;
J.A. 147-149 (photos). The officers managed to get
6
themselves, but not Tamerlan, out of respondent’s path.
J.A. 180. Respondent ran over Tamerlan, who died
a few hours later. Ibid. The shootout caused lifethreatening injuries to one of the officers. J.A. 180-181.
Respondent abandoned the SUV about two blocks
away, then fled a short distance on foot and hid in a covered boat behind a home. Pet. App. 9a; see J.A. 150
(photo). While inside the boat, respondent carved the
words “Stop killing our innocent people, and we will
stop.” J.A. 168; see J.A. 151 (photo). He also used a
pencil to write out a manifesto to “shed some light on
[his] actions.” J.A. 203; see J.A. 152-154 (photos). He
stated that while “killing innocent people” is “forbidden
in Islam” and he did not “like” it, “due to said [obscured]
it is allowed.” J.A. 159. He accused “[t]he U.S. government [of ] killing our innocent civilians” and stated that
he could not “stand to see such evil go unpunished.”
J.A. 204. He warned that “the [M]ujahideen” “ha[d]
awoken,” and that “you are fighting men who look into
the barrel of your gun and see heaven.” Ibid. He also
wrote that he was “jealous” of Tamerlan’s martyrdom
and “ask[ed] Allah to make [him] a” martyr as well. J.A.
203-204.
The homeowner discovered respondent the next day.
Pet. App. 10a. Respondent ignored law-enforcement
officers’ “repeated requests to surrender,” but was
eventually forced out of the boat and captured. Ibid.
B. Pretrial Proceedings
In June 2013, a federal grand jury in the District of
Massachusetts indicted respondent on 30 counts, including using a weapon of mass destruction resulting in
death, in violation of 18 U.S.C. 2332a; bombing a place
of public use resulting in death, in violation of 18 U.S.C.
2332f; malicious destruction of property resulting in
7
death, in violation of 18 U.S.C. 844(i); and using a firearm during and in relation to a crime of violence resulting in murder, in violation of 18 U.S.C. 924(c) and ( j)
(2012). Pet. App. 12a-15a; see id. at 12a n.9 (detailing
all charges). At the direction of then-Attorney General
Eric Holder, the United States sought capital sentences
on the 17 capital counts. Id. at 15a.
1. Venue challenges and jury selection
a. One year into pretrial proceedings, respondent
filed a motion for a change of venue based on pretrial
publicity. Pet. App. 190a-205a. The district court denied the motion. Id. at 190a-201a. The court recognized
that “[m]edia coverage of this case * * * has been extensive,” but emphasized that “prominence does not
necessarily produce prejudice, and juror impartiality
does not require ignorance.” Id. at 193a (quoting Skilling v. United States, 561 U.S. 358, 360-361 (2010)).
After reviewing the media coverage in detail, along with
expert reports on the bias that it would allegedly create,
the court determined that the coverage did not contain
the kind of “blatantly prejudicial information that prospective jurors could not reasonably be expected to
cabin or ignore.” Id. at 194a.
Respondent renewed his venue-change motion a few
months later, and the district court again denied it. Pet.
App. 205a. The court observed, inter alia, that the upcoming jury-selection process was “designed to screen
out jurors who would be unable to conscientiously perform [an] impartial and fair assessment of the evidence
at trial,” including those who “have been affected in the
ways in which [respondent] is concerned.” Id. at 213a.
Respondent then sought venue transfer by asking
the court of appeals for a writ of mandamus. Pet. App.
216a-217a. After “a careful and painstaking review,”
8
the court found that respondent had “fall[en] far short
of meeting the requirements for” that relief. Id. at 217a.
b. Jury selection began in early January 2015. Pet.
App. 27a. The district court summoned an expanded
pool of more than 1300 prospective jurors and directed
them to complete a 100-question questionnaire, developed in conjunction with the parties, soliciting information about their backgrounds, exposure to pretrial
publicity, views on the death penalty, and opinions (if
any) about the case. Id. at 27a-28a, 213a; see id. at 350a383a (questionnaire).
Among other things, prospective jurors were required to list their “primary source[s] of news,” with
follow-up questions about print, radio, television, and
internet sources. Pet. App. 371a. They also disclosed
whether they had seen a “little,” a “moderate amount,”
or “[a] lot” of publicity about the case. Id. at 372a.
Question 77 specifically asked prospective jurors
whether, “[a]s a result of what [they] ha[d] seen or read
in the news media,” they had “formed an opinion” that
respondent was “guilty” or “not guilty” and “should” or
“should not” receive the death penalty. Id. at 373a.
Question 77 also asked whether, if prospective jurors
had formed such an opinion, they could “set aside [that]
opinion and base [their] decision about guilt and punishment solely on the evidence that will be presented * * *
in court.” Ibid.
The district court declined respondent’s request to
include a question inviting every prospective juror to
narrate “what * * * [he or she] kn[e]w about the facts
of th[e] case.” J.A. 475. The court explained that such
a question would be “unfocused” and produce “unmanageable data.” J.A. 480-481; see J.A. 485-486. The court
also emphasized that each juror who made it through
9
the initial screen of the questionnaire would be subject
to further examination. J.A. 480-483.
c. After reviewing the completed questionnaires,
the district court excused many prospective jurors on
the agreement of the parties or for hardship, and called
back 256 prospective jurors from the first half of the
jury pool for individual voir dire. Pet. App. 30a; see C.A.
App. 3866, 3894. The voir dire occupied 21 court days
over the ensuing month and a half. Pet. App. 30a. In
“face-to-face, give-and-take” exchanges with each prospective juror, the court and the parties followed up on
the questionnaire responses, including by questioning
prospective jurors about their ability to “put a prior
opinion aside” and “decide the case only on the trial
evidence.” Id. at 226a-227a; see C.A. App. 260-3920 (full
voir dire transcript); J.A. 284-471 (voir dire transcripts
for each seated juror).
The district court declined requests by respondent,
which he renewed multiple times during the voir dire,
for scripted questions asking each prospective juror
whether he or she had “heard or read * * * anything
[about] this case” and “[w]hat st[ood] out in [his or her]
mind from everything” he or she might have “heard,
read or seen about the Boston Marathon bombing and
the events that followed it.” J.A. 489; see J.A. 491-494,
496-498, 500-503. The court emphasized the importance
of an individualized approach to questioning, explaining
that invariantly asking such questions to all jurors could
“be counter-productive,” because “[e]very juror is different” and “has to be * * * questioned in a way that is
appropriate to the juror’s * * * answers.” J.A. 498. In
addition, the court assessed the initial sessions of voir
dire, which had been conducted without such scripted
questioning, to have been “successful,” and decided that
10
it should maintain “the course we’ve been following
* * * subject to adjustment as necessary for each witness.” J.A. 502-503.
In the individualized questioning, the district court
allowed the defense to ask numerous prospective
jurors—including several ultimately seated on the
jury—the proposed questions, or similar questions,
about what they had seen or heard and what stood out
in their minds. See, e.g., J.A. 331; C.A. App. 674-676,
729, 942, 1044, 1385, 1502, 1520, 1810-1811, 2559; see
also J.A. 374, 410. Over the course of the voir dire, the
court dismissed numerous prospective jurors for cause,
either sua sponte or at a party’s request. See Pet. App.
35a. None of those for-cause dismissals was specifically
premised on a prospective juror’s responses to the
pretrial-publicity questions that respondent had proposed to ask as a blanket matter.
d. Three weeks into jury selection, respondent filed
a third venue-change motion, which the district court
found to have “even less” merit than the previous ones.
Pet. App. 221a, 223a. The court observed that prospective jurors’ responses to the questionnaire showed them
to be “substantially” less unfavorably disposed than
people surveyed in respondent’s proposed alternative
venues. Id. at 225a n.4. And the court explained that
“the careful inquiry that [it] and counsel are making
into the suitability of prospective jurors” through voir
dire was “successfully identifying [those] capable of
serving as fair and impartial jurors.” Id. at 223a.
Respondent filed a second mandamus petition seeking a venue change, which the court of appeals denied.
Pet. App. 230a. The court acknowledged the “significant media attention” that respondent and the bombing
had received, but emphasized that prospective jurors’
11
“[k]nowledge” of underlying events “does not equate to
disqualifying prejudice.” Id. at 231a. The court noted
that the coverage consisted mostly of “factual news media accounts” and that respondent’s “own statistics reveal that hundreds of members of the venire have not
formed an opinion that he is guilty.” Id. at 242a-243a.
After “review[ing] the entire voir dire,” the court of
appeals found it “thorough and appropriately calibrated
to expose bias, ignorance, and prevarication.” Pet. App.
250a. The court emphasized that the district court had
“taken ample time to carefully differentiate between
those individual jurors who have been exposed to publicity but are able to put that exposure aside and those
who have developed an opinion they cannot put aside.”
Id. at 253a. And the court of appeals found that the district court had identified a slate of “provisionally qualified” jurors “capable of providing [respondent] with a
fair trial.” Id. at 240a.
e. The district court completed jury selection by
allowing the parties to each exercise 23 peremptory
challenges to the provisionally qualified jurors, resulting in a 12-member jury with six alternates. Pet. App.
41a. All of the jurors affirmed “that they could adjudicate on the evidence as opposed to personal biases or
preconceived notions.” Ibid.
2. Dispute over Waltham evidence
Before trial, respondent sought to compel discovery
about an unsolved triple murder that had occurred in
Waltham, Massachusetts, on September 11, 2011. Pet.
App. 64a-66a. Investigators came to suspect Tamerlan’s friend Ibragim Todashev, whom they had interviewed during the marathon-bombing investigation, of
involvement in those separate murders. Id. at 64a-65a.
12
Todashev initially denied involvement, but when
agents challenged his story, he eventually offered to
provide information “if he could get a deal for cooperating.” Pet. App. 65a; see J.A. 900-918 (FBI “302” report
on final Todashev interview); J.A. 919-967 (interview
transcript). Todashev then admitted to participating in
the Waltham crime, but qualified his admission by
blaming Tamerlan for the murders. Pet. App. 65a-66a.
Todashev claimed that he had agreed to help Tamerlan rob drug dealers and had participated in holding
them at gunpoint and binding them. J.A. 912-914. According to Todashev, however, it was Tamerlan who
made a spur-of-the-moment decision to kill the victims
to avoid leaving any witnesses. See J.A. 911-916, 939941, 947. Todashev claimed that he had objected to the
killing and that had Tamerlan allowed him to wait outside while Tamerlan alone slit the victims’ throats. J.A.
915-916, 945-949. Todashev began writing out a confession, but then suddenly attacked the agents, who shot
and killed him. J.A. 918.
The government informed defense counsel of “the
fact and general substance of Todashev’s statements.”
J.A. 658. The government also disclosed a proffer by
respondent’s friend Dias Kadyrbavev (through his attorney) that respondent had told Kadyrbavev that Tamerlan had been involved in the Waltham murders, and
that respondent had described those murders as “jihad.” Pet. App. 67a; see J.A. 583-585. The government
declined, however, to turn over the FBI “302” reports
and recordings from Todashev’s interviews, citing the
law-enforcement privilege. Pet. App. 66a-67a. After inspecting some of those materials in camera, the district
court denied respondent’s motions to compel production. J.A. 652-654, 655-659. The court also granted the
13
government’s motion in limine to exclude evidence
about the Waltham murders from the penalty phase of
the trial. J.A. 649-651. The court found “insufficient
evidence to describe what participation Tamerlan may
have had” in the Waltham murders, observing that the
evidence made it just as plausible “that Todashev was
the bad guy and Tamerlan was the minor actor.” J.A.
650. The court explained that, because the jury would
have “no way of telling who played what role, if they
played roles,” the Waltham evidence “would be confusing to the jury and a waste of time * * * without any
probative value.” Ibid.
C. Trial And Sentencing
The guilt phase of respondent’s trial began in March
2015 and lasted 17 days. J.A. 52-63. Defense counsel’s
opening statement acknowledged that respondent had
committed virtually all of the acts charged and asserted
that respondent would not “attempt to sidestep” his “responsibility for his actions.” J.A. 191. The defense
claimed, however, that respondent had “followed” his
brother’s “influence” in committing the crimes. J.A.
192-194. The government then presented “overwhelming evidence” of respondent’s culpability, including 92
witnesses and more than 1200 exhibits. Pet. App. 324a;
see id. at 17a; see also J.A. 161-188 (government’s opening statement); J.A. 199-240 (government’s closing
statement). The jury “thoughtfully deliberated” for
more than two days, asked several questions about certain charges, and found respondent guilty on all 30
counts. Id. at 327a.
A 12-day penalty-phase proceeding followed. See
J.A. 65-75. The government called 17 witnesses, and respondent called 46. See Pet. App. 17a-18a. Victims’
family members testified about the character of the
14
people that respondent had killed and the depth of their
own grief. See, e.g., J.A. 884-885 (Krystle Campbell’s
brother); J.A. 888 (Lingzi Lu’s aunt). Several surviving
victims recounted their trauma in detail, including their
“reactions to facing death,” terror at the “uncertainty
[of ] what had happened to other family members,”
“feelings of helplessness watching [an] injured child or
partner suffer,” and “the long-term implications of
becoming an amputee.” Pet. App. 99a-100a (brackets
omitted); see J.A. 795-820 (government’s penalty-phase
closing statement).
After deliberating, the jury determined that capital
punishment was appropriate for six of the 17 capital
counts, corresponding to respondent’s murder of Martin Richard and Lingzi Lu with his own bomb. Pet. App.
18a. The district court imposed the death penalty on
those six counts. Ibid. The jury recommended, and the
court imposed, life imprisonment on the other capital
counts, which included charges based on the murders of
Krystle Campbell and Sean Collier. Ibid. The court imposed a number of concurrent and consecutive terms on
the remaining counts. Ibid.
The district court denied a post-trial motion for acquittal or a new trial. Pet. App. 303a-349a. Addressing
a renewed venue argument, the court explained that the
jury’s conduct “suggest[s] patient and careful deliberation,” “not [] a jury inflamed by prejudice, eager to return a verdict adverse to the defendant, even when the
defendant had effectively conceded” his guilt. Id. at
328a (emphasis omitted). The court also observed that
the “discriminating nature of the” penalty-phase verdict, in which the jury “distinguished [respondent] from
his brother,” provided “convincing evidence that this
15
was not a jury impelled by gross prejudice or even reductive simplicity, but rather a group of intelligent, conscientious citizens doing their solemn duty.” Id. at 329a.
D. Court of Appeals’ Decision
The court of appeals affirmed respondent’s convictions, with the exception of three for using a firearm
during a crime of violence under 18 U.S.C. 924(c) (2012),
which the court viewed as legally deficient. Pet. App.
134a-152a. But the court vacated respondent’s capital
sentences and remanded for a new sentencing proceeding. Id. at 44a-60a, 64a-87a, 152a.
Although it did not conclusively resolve the issue, the
court of appeals stated that it would “likely find” that
venue was proper, notwithstanding pretrial publicity.
Pet. App. 48a. The court nevertheless deemed the district court to have abused its discretion by denying respondent’s request to ask every prospective juror more
specific questions about the precise content of the pretrial publicity he or she had come across. Id. at 44a-60a.
The court of appeals recognized this Court’s holding
in Mu’Min v. Virginia, 500 U.S. 415 (1991), that the
Constitution does not require trial courts to ask prospective jurors “about the specific contents of the news
reports to which they ha[ve] been exposed.” Id. at 417;
see Pet. App. 57a-59a. But the court described its 1968
opinion in Patriarca v. United States, 402 F.2d 314 (1st
Cir.), cert. denied, 393 U.S. 1022 (1969)—which neither
the defense nor the court of appeals itself had mentioned
during the pretrial proceedings—as imposing a blanket
supervisory rule that requires such an inquiry at counsel’s request in cases of substantial publicity. Pet. App.
49a-60a. The court found the perceived error harmless
as to respondent’s convictions, because he had conceded
16
his guilt, but concluded that vacatur of his capital sentences was required. Id. at 60a, 61a n.33.
The court of appeals also concluded that the district
court had abused its discretion by excluding evidence
about the Waltham murders. Pet. App. 64a-87a; see id.
at 87a n.51 (noting Judge Kayatta’s more-limited conclusion). The court of appeals viewed the Waltham evidence as “highly probative of Tamerlan’s ability to influence” or intimidate respondent into bombing the
Boston Marathon. Id. at 76a. The court refused to defer to the district court’s assessment that the Waltham
evidence’s “probative value [was] outweighed by the
danger of creating unfair prejudice, confusing the issues, or misleading the jury,” 18 U.S.C. 3593(c), and it
deemed the exclusion prejudicial. Pet. App. 80a-84a.
The court of appeals further concluded, in light of its
view that Todashev’s statements were unprivileged and
highly probative, that the district court should have
ordered the government to produce those statements so
that respondent could introduce them as mitigating
evidence and pursue any investigatory leads. See id. at
85a-87a.
Because the court of appeals vacated respondent’s
death sentences on those rationales, it did not definitively resolve certain other claims. Pet. App. 48a-49a,
61a-63a, 102a. Judge Torruella wrote a separate partial
concurrence asserting that a change of venue should
have been granted. Id. at 153a-188a.
SUMMARY OF ARGUMENT
The court of appeals improperly vacated the capital
sentences recommended by the jury in one of the most
important terrorism prosecutions in our Nation’s history. This Court should reverse the decision below and
put this case back on track toward a just conclusion.
17
I. As this Court has long recognized, a prospective
juror’s exposure to pretrial publicity does not mean that
he or she is unable to decide a case impartially. The fair
determination of guilt and punishment for a ubiquitously publicized crime is neither impossible nor the peculiar province of the ignorant. Instead, thoughtful and
informed citizens—the ideal jurors—may serve on a
jury so long as they “can lay aside their impressions or
opinions and render a verdict based on the evidence
presented in court.” Skilling v. United States, 561 U.S.
358, 398-399 (2010) (brackets and citation omitted).
Identifying impartial prospective jurors is “particularly within the province of the trial judge,” who “sits in
the locale where the publicity is said to have had its
effect,” observes prospective jurors up close, and can
adopt tailored measures to detect and eliminate bias.
Skilling, 561 U.S. at 386 (citations omitted). And as the
court of appeals in this case recognized at the time, the
district judge “carefully differentiate[d] between those
individual jurors who have been exposed to publicity but
are able to put that exposure aside and those who have
developed an opinion they cannot put aside.” Pet. App.
253a. The district court summoned an expanded jury
pool, screened it with a lengthy questionnaire that included multiple questions about pretrial publicity, and
then conducted a 21-day voir dire—with follow-up questions from the parties—probing jurors on their exposure to publicity and many other topics. The result was
a set of “provisionally qualified” jurors “capable of
providing [respondent] with a fair trial.” Id. at 240a.
The court of appeals’ later invalidation of that process is unsustainable. The court improperly invoked its
“supervisory power” to impose an inflexible mandate
18
that this Court has previously rejected as a constitutional prerequisite for selecting an impartial jury—
namely, a requirement to question all prospective jurors “about the specific contents of the news reports to
which they ha[ve] been exposed.” Mu’Min v. Virginia,
500 U.S. 415, 417 (1991). In doing so, the court of appeals deviated sharply from this Court’s precedents
reviewing federal jury-selection procedures and gave
short shrift to the superior perspective and conscientious efforts of the district judge to address pretrialpublicity concerns through individualized interviews
rather than inflexible scripts. The decision below also
disregarded the practical realities of a jury pool unlikely to have comprehensive recall of specific news
items, a defendant who conceded the facts to which the
media coverage primarily related, and a deliberative
jury that ultimately rejected the death penalty for many
of respondent’s capital crimes.
II. The court of appeals’ alternative rationale for
vacating respondent’s capital sentences—that the district court abused its discretion by excluding evidence
pertaining to the unsolved Waltham deaths—was likewise an unwarranted usurpation of the district judge’s
sound discretion. Any minimal probative value of Tamerlan’s possible involvement in a different crime (robbery and murder of drug dealers), with a different accomplice (Todashev), and an apparently different object
(money and the elimination of witnesses), was outweighed by the confusion and distraction of the minitrial that would have been required for respondent to
ask his own jury to discern the relevance—if any—of
that separate unsolved crime. Such a minitrial was exceedingly unlikely to be productive, as everyone allegedly involved in the Waltham crime was dead and the
19
credibility of Todashev’s self-serving statement blaming Tamerlan, right before his own suicidal attack on
law enforcement, was specious at best. And even if
Todashev’s story were believable in all of its particulars,
it showed at most that Tamerlan had committed murder
on the spur of the moment and allowed Todashev to opt
out—not that Tamerlan intimidated respondent into
researching, building, and using homemade shrapnel
bombs to kill innocent people at the Boston Marathon.
Indeed, any error in the district court’s handling of
the Waltham evidence was harmless beyond a reasonable doubt. The record definitively demonstrates that
respondent was eager to commit his crimes, was untroubled at having ended two lives and devastated many others, and remained proud of his actions even after he had
run Tamerlan over and was hiding out alone. The jury
that watched a video of respondent place and denotate
a shrapnel bomb just behind a group of children would
not have changed its sentencing recommendation based
on Tamerlan’s supposed involvement in unrelated
crimes two years earlier. The court of appeals lacked
any sound basis for concluding otherwise and undoing
the work of the jurors to whom the issue of capital punishment was properly entrusted.
ARGUMENT
I. THE COURT OF APPEALS ERRED IN APPLYING AN
INFLEXIBLE VOIR DIRE RULE TO INVALIDATE
RESPONDENT’S CAPITAL SENTENCES
In recognition of the high profile of this case, the district court oversaw a meticulous 21-day jury-selection
process that was carefully calibrated to identify juror
bias. Reviewing the voir dire at the time, the court of
appeals praised it as thorough and effective. Pet. App.
20
250a. The jury’s “nuance[d]” verdict, which recommended capital sentences for only six of the 17 capital
offenses that respondent had admitted, id. at 48a, confirmed the correctness of that evaluation.
A different panel of the court of appeals nonetheless
undid the district court’s and the jury’s work after the
fact, based on a previously unmentioned “supervisory
rule” requiring a district court to ask every potential
juror to try to recall specific news items related to the
case that he or she may have encountered years earlier.
Such questioning, however, is not a prerequisite for an
unbiased jury, and the court of appeals’ rigid mandate
is a sharp, unwarranted, and impractical departure
from this Court’s own deferential and case-specific approach to reviewing voir dire. This Court should make
clear that the court of appeals erred in imposing such
questioning as an inflexible rule.
A. The District Court’s Extensive Jury-Selection
Procedures Appropriately And Effectively Ensured
An Impartial Jury
As this Court has emphasized, “pretrial publicity—
even pervasive, adverse publicity—does not inevitably
lead to an unfair trial.” Skilling v. United States, 561
U.S. 358, 384 (2010) (citation omitted). Jurors “need not
enter the box with empty heads in order to determine
the facts impartially”; instead, it “ ‘is sufficient if the
jurors can lay aside their impressions or opinions and
render a verdict based on the evidence presented in
court.’ ” Id. at 398-399 (brackets and citation omitted).
To ensure that jurors meet that standard, the judicial
system places “primary reliance on the judgment of the
trial court,” with its local knowledge and firsthand observations, to craft appropriate jury-selection procedures. Id. at 386 (citation omitted); see id. at 385-388 &
21
n.21, 399 n.34. The district court’s careful procedures
here provide no basis for disregarding “the respect due
to [its] determinations,” id. at 387, in its management of
jury selection in this complex and sensitive case.
1. A juror can be impartial even if he or she has seen,
and formed opinions based on, pretrial publicity
a. “It is not required * * * that the jurors be totally
ignorant of the facts and issues involved” for a defendant to receive a fair trial. Irvin v. Dowd, 366 U.S. 717,
722 (1961). Instead, the Sixth Amendment requires an
“impartial jury.” And “juror impartiality * * * does
not require ignorance.” Skilling, 561 U.S. at 381.
For well over a century, the Court has recognized
that “every case of public interest is almost, as a matter
of necessity, brought to the attention of all the intelligent people in the vicinity,” such that “scarcely any one
can be found among those best fitted for jurors who has
not read or heard of it, and who has not some impression
or some opinion in respect to its merits.” Reynolds v.
United States, 98 U.S. 145, 155-156 (1879); see Irvin,
366 U.S. at 721 (similar). The “widespread and diverse
methods of communication” that make that so, Irvin,
366 U.S. at 722, have multiplied immeasurably in recent
years, increasing the potential depth and breadth of
media coverage in a high-profile case.
In light of those realities, to “hold that the mere
existence of any preconceived notion as to the guilt or
innocence of an accused, without more, [is] sufficient to”
disqualify a juror would “establish an impossible standard.” Irvin, 366 U.S. at 723. It would also have the
harmful effect of “exclud[ing] intelligent and observing”
people capable of reaching a verdict “according to the
testimony,” United States v. Burr, 25 F. Cas. 49, 51
(C.C.D. Va. 1807) (Marshall, C.J.)—the very people
22
“best qualified to serve as jurors,” Irvin, 366 U.S. at
722. The critical question for jury selection thus is not
whether jurors lack preexisting impressions or opinions, but instead whether “jurors can lay aside their impressions or opinions and render a verdict based on the
evidence presented in court.” Skilling, 561 U.S. at 398399 (emphasis added; brackets and citation omitted).
b. With one exception not presented here—pretrial
publicity so “extreme” as to create a “presumption of
prejudice”—the central mechanism to gauge juror impartiality is voir dire examination. Skilling, 561 U.S. at
381. That, in turn, is “particularly within the province
of the trial judge.” Id. at 386 (citation omitted).
The trial judge is ideally situated to manage voir dire
in a heavily publicized case, because the judge “ ‘sits in
the locale where the publicity is said to have had its
effect’ and may base her evaluation on her ‘own perception of the depth and extent of news stories that might
influence a juror.’ ” Skilling, 561 U.S. at 386 (citation
omitted). And the judge’s personal involvement in an
“in-the-moment voir dire affords * * * a[n] intimate
and immediate basis for assessing a venire member’s
fitness for jury service.” Id. at 386-387. Indeed, the
“function” of the trial judge in conducting voir dire “is
not unlike that of jurors later on in the trial”; “[b]oth
must reach conclusions as to impartiality and credibility
by relying on their own evaluations of demeanor evidence and of responses to questions.” Rosales-Lopez v.
United States, 451 U.S. 182, 188 (1981) (plurality opinion).
The trial judge therefore has broad latitude in “determinations of juror impartiality and of the measures
necessary to ensure that impartiality.” Skilling, 561
U.S. at 387. As the Court summarized in Skilling v.
23
United States, “[n]o hard-and-fast formula dictates the
necessary depth or breadth of voir dire.” Id. at 386.
This Court has instead “stressed the wide discretion
granted to the trial court in conducting voir dire in the
area of pretrial publicity and in other areas of inquiry
that might tend to show juror bias.” Mu’Min v. Virginia, 500 U.S. 415, 427 (1991).
c. This Court has required a particular line of inquiry only in very limited contexts. For example, the
Court has required trial courts to cover the subject of
racial or ethnic prejudice, which can raise “unique historical, constitutional, and institutional concerns” in
certain cases. Pena-Rodriguez v. Colorado, 137 S. Ct.
855, 868 (2017); see Mu’Min, 500 U.S. at 422-424 (reviewing constitutional and supervisory-rule precedents). And even then, “the trial judge retains discretion as to the form and number of questions on the subject.” Turner v. Murray, 476 U.S. 28, 37 (1986); see
Mu’Min, 500 U.S. at 424 (emphasizing that both state
and federal trial judges have “great latitude in deciding
what questions should be asked on voir dire”); RosalesLopez, 451 U.S. at 195 (Rehnquist, J., concurring in the
judgment) (relying, in controlling opinion, on “the trial
court’s discretion” in determining whether to ask voir
dire questions regarding racial and ethnic prejudice).
The Court has, in particular, made clear that a district court can select an “impartial jury” in a heavily
publicized case even without questioning prospective
jurors “about the specific contents of the news reports
to which they ha[ve] been exposed.” Mu’Min, 500 U.S.
at 417. In Mu’Min v. Virginia, the Court rejected a
state capital defendant’s claim that the Constitution requires that procedure, noting that such a rule would create a more demanding standard for questioning about
24
pretrial publicity than the Court had required about racial or ethnic bias. Id. at 424, 431. The Court explained
that “[w]hether a trial court decides to put questions
about the content of publicity to a potential juror or not,
it must make the same decision at the end of the questioning: is this juror to be believed when he says he has
not formed an opinion about the case?” Id. at 425. And
the Court held that the trial judge had impaneled a constitutionally impartial jury even though he had “refused
to ask any of [the defendant’s] proposed questions relating to the content of news items that potential jurors
might have read or seen.” Id. at 419; see id. at 420-421,
431-432 (recounting the trial court’s more limited inquiry).
2. The district court’s voir dire procedures here were
appropriately tailored to produce an impartial jury
The district judge in this case was likewise able to
assess each juror’s potential bias, and seat an impartial
jury, without asking such intricate questions of every
prospective juror. By any fair measure, the court acted
well within its broad discretion to devise “measures necessary to ensure” juror impartiality. Skilling, 561 U.S.
at 387. The court conducted a thorough voir dire spanning 21 court days and nearly 4000 transcript pages. It
asked virtually all prospective jurors about the influence of pretrial publicity, excused for cause numerous
prospective jurors who could not be impartial, and
seated a jury that was not biased against respondent on
the critical question of the appropriate sentence—as
evidenced by the nuanced penalty-phase verdict. See
Pet. App. 47a-48a, 329a-330a.
a. As the court of appeals observed at the time, the
district court’s process for identifying a 70-person slate
of “provisionally qualified” jurors was “thorough and
25
appropriately calibrated to expose bias, ignorance, and
prevarication.” Pet. App. 240a, 250a (denial of second
mandamus petition). The district court “t[ook] ample
time to carefully differentiate between those individual
jurors who have been exposed to publicity but are able
to put that exposure aside and those who have developed an opinion they cannot put aside.” Id. at 253a. The
result was a set of prospective jurors “capable of providing [respondent] with a fair trial.” Id. at 240a.
The district court began by summoning an “expanded jury pool,” with 1373 citizens reporting for jury
selection. Pet. App. 223a n.2; see id. at 27a. The court
directed each of them to complete under oath “a long
and detailed one-hundred-question questionnaire” that
had been “jointly developed” with the parties. Id. at
223a n.2, 249a; see id. at 350a-383a. The questionnaire
required prospective jurors to list their “primary
source[s] of news,” with specific follow-ups about print,
television, radio, and internet sources. Id. at 371a. It
then asked how prospective jurors would “describe the
amount of media coverage [they] have seen about this
case,” whether a “lot,” a “moderate” amount, a “little,”
or “[n]one.” Id. at 372a. And Question 77 asked each
prospective juror (1) whether “[a]s a result of what [he
or she] ha[d] seen or read in the news media,” he or she
had “formed an opinion” that respondent was “guilty”
or “not guilty,” or “should” or “should not” “receive the
death penalty,” and (2) if so, whether he or she would be
“able or unable to set aside [that] opinion and base [his
or her] decision about guilt and punishment solely on
the evidence that will be presented * * * in court.” Id.
at 373a.
The questionnaire enabled the district court, in consultation with the parties, to conduct an initial screen of
26
the first half of the jury pool and excuse nearly twothirds (441 of 697) of those prospective jurors. See Pet.
App. 30a; C.A. App. 3866, 3894. That process provided
a narrower, but still substantial, pool of 256 prospective
jurors for individual voir dire for fitness to serve on the
12-person jury. Pet. App. 30a. The court and the parties then engaged in a “time-consuming” and tailored
“face-to-face, give-and-take” with each of those individuals. Id. at 223a, 227a. As the court later emphasized,
it refused to “accept[ ] at face value” the prospective
jurors’ questionnaire responses on the effect of pretrial
publicity. Id. at 226a. Instead, the court asked virtually
every prospective juror—including all those ultimately
seated—to expand on his or her answer to Question 77.
See J.A. 290, 299-300, 311-312, 326-328, 339, 360-361,
383-384, 399-401, 419-421, 434, 448-449, 459.
The district court also allowed the parties what respondent’s counsel at the time called “considerable latitude” to ask follow-up questions—including on pretrial
publicity. C.A. App. 1143; see, e.g., J.A. 317-318, 331332, 350, 371-372, 407-412, 455-456 (defense follow-up on
pretrial publicity during voir dire of seated jurors).
Based on the individualized questioning, the district
court excused numerous prospective jurors for cause.
See Pet. App. 35a. And each side was able to exercise
23 peremptory strikes. See id. at 224a, 235a & n.1.
b. “Inspection of the questionnaires and voir dire of
the individuals who actually served as jurors,” Skilling,
561 U.S. at 389, illustrates how the district court ensured their ability to be impartial. Nine of 12 jurors had
seen only a little or a moderate amount of pretrial publicity. See C.A. App. 12,132 (table of jurors’ questionnaire responses). All 12 stated both on their question-
27
naires and at voir dire that they had not formed an opinion regarding punishment—the only part of the verdict
that respondent ultimately contested. See Pet. App.
60a; Gov’t C.A. Br. 174 (table of jurors’ responses). And
all 12 indicated “that they could adjudicate [the case] on
the evidence as opposed to personal biases or preconceived notions.” Pet. App. 41a.
The jury-selection process in this case did exactly
what it was supposed to do: identify potential bases for
bias, and then explore whether they would actually prevent jurors from having an open mind once they were
sworn in. For example, in response to the district
court’s request that he elaborate on his answer to Question 77, one juror acknowledged a preliminary impression that “obviously [respondent] was involved in something,” but emphasized that he nevertheless viewed respondent as “innocent until proven guilty.” J.A. 312
(Juror 83). The district court did not simply accept the
juror’s assurance but probed more deeply, asking “how
would you handle whatever ideas you’ve had from before the trial?” J.A. 313. The juror answered that he
would make his decision “based on the evidence presented” after “listening” to the witnesses “and what
they say.” J.A. 314. Defense counsel then followed up
on the juror’s statement that respondent was “involved
in something.” J.A 317. In response, the juror clarified
that while he had viewed it as unlikely that respondent
could show “a case of mistaken identity,” he didn’t know
“exactly what” respondent had been “involved in” or
“how.” J.A. 318. And the juror recognized that he
“d[id]n’t know enough” to have a view on the appropriate penalty. J.A. 320.
For the other seated jurors as well, the individualized questioning likewise made clear that the pretrial
28
publicity had not produced any opinions about respondent that the jurors would be unable to set aside. See
J.A. 290 (Juror 35 was not “drawing a conclusion without all the evidence presented”); J.A. 300 (Juror 41 had
“seen some [coverage] in the media” but “d[id]n’t really
follow it”); J.A. 327 (Juror 102 “really d[id]n’t know”
what had happened); J.A. 350 (Juror 138 had seen only
“bits and pieces” of media coverage); J.A. 372 (Juror 229
“suppose[d]” respondent “was involved,” but didn’t “always believe everything” she encountered in the media); J.A. 384 (Juror 286 did not “feel [she] knew enough
of the facts to base a decision”); J.A. 400 (Juror 349 “realized” that she could not “know that he’s guilty” because she didn’t know “what the evidence is”); J.A. 420
(Juror 395 did not have “all the information” and could
“change [her] mind” once she “had more information”);
J.A. 434 (Juror 441 would “[n]eed to see more evidence”
to form an opinion); J.A. 448 (Juror 480 would “need to
sit and look at evidence” to “make [his] decision”); J.A.
459-460 (Juror 487 could “put * * * aside” the impression that “it seemed” respondent had “played a role in”
the crime and “see what the real evidence really is”).
The jurors’ deliberations and penalty verdict reinforce the effectiveness of the selection process. See
Skilling, 561 U.S. at 395 (noting that split verdict “suggests the court’s [impartiality] assessments were accurate”). Notwithstanding that respondent “had effectively conceded” his guilt, the jury during guilt-phase
deliberations sent two notes inquiring about accomplice
liability, “suggest[ing] patient and careful deliberation,” not “a jury inflamed by prejudice, eager to return
a verdict adverse to” him. Pet. App. 328a (emphasis
omitted). Then at the penalty phase, the jury recommended capital sentences for only six of the 17 capital
29
offenses—those corresponding to the bomb placed by
respondent personally. As the district court observed,
the “discriminating nature of the” penalty verdict provides “convincing evidence that this was not a jury impelled by gross prejudice or even reductive simplicity,
but rather a group of intelligent, conscientious citizens.”
Id. at 329a; see id. at 48a (court of appeals acknowledging that the jurors’ “nuance” supported viewing them
“as intent on following the law and the facts”).
B. The Court Of Appeals Erred In Relying On A Novel,
Inflexible, And Unsupported Voir Dire Rule To
Invalidate Respondent’s Capital Sentences
In invalidating respondent’s capital sentences, the
court of appeals did not conclude that any particular
juror had been biased by pretrial publicity or unable to
render a decision based on the trial evidence. The court
instead took the view that its half-century-old decision
in Patriarca v. United States, 402 F.2d 314 (1968), cert.
denied, 393 U.S. 1022 (1969)—which was not cited by
anyone until the post-trial appeal—mandates that a district court must always grant a request by counsel to
ask every prospective juror in a “high-profile case”
what he or she had “ ‘read and heard about the case.’ ”
Pet. App. 53a-54a (citation omitted). This Court—“the
court of ultimate review of the standards formulated
and applied by federal courts in the trial of criminal
cases,” McNabb v. United States, 318 U.S. 332, 347
(1943)—should reverse the application of such an inflexible and unsound rule.
1. In considering the “adequacy of jury selection,”
this Court has been “attentive to the respect” that appellate courts owe “to district-court determinations of
juror impartiality and of the measures necessary to en-
30
sure that impartiality.” Skilling, 561 U.S. at 387. Appellate courts are generally more remote from the specific “ ‘news stories that might influence a juror’ ” and
“lack the on-the-spot comprehension of the situation
possessed by trial judges,” id. at 386 (citation omitted),
that informs the procedures necessary to identify prospective jurors biased by pretrial publicity. “In contrast to the cold transcript received by the appellate
court, the in-the-moment voir dire affords the trial
court a more intimate and immediate basis for assessing
a venire member’s fitness for jury service,” id. at 386387, as well as the ability to evaluate and modify the
procedures as they are implemented.
The district court did precisely that here when it
determined that tailored, individualized questioning
worked better than respondent’s proposal for formulaic, blanket, open-ended questions, which might well be
counterproductive. In particular, the court found the
open-ended narrative question that respondent wanted
for the questionnaire—“What did you know about the
facts of this case before you came to court today (if anything)?”—to be an “unfocused” invitation for “unmanageable data” that was unnecessary in light of the existing questions and the ability to later individually examine each prospective juror. J.A. 475, 480-481; see J.A.
485-486. Similarly, the court reasonably determined
that “try[ing] to stick with a repeatable formula” by requiring scripted questions on pretrial publicity during
each individual voir dire could “be counter-productive
actually rather than helpful.” J.A. 498; see J.A. 489 (respondent’s request that the court ask each juror during
voir dire, “Before coming here today, have you heard or
read about anything this case?” and, “What stands out
in your mind from everything you have heard, read or
31
seen about the Boston Marathon bombing and the
events that followed it?”). As the court explained, “detailed questioning about what the juror thinks he or she
knows about the events and the sources places the
wrong emphasis for the juror” and “misdirects things a
little bit.” J.A. 502.
In sound reliance on its assessment that the individualized voir dire enabled determinations of the credibility of each prospective juror’s assurance that he or she
could be impartial, the district court determined that
the best course was the one it had “been following * * *
subject to adjustment as necessary for each witness.”
J.A. 502-503. The court understood that “[e]very juror
is different” and should be “questioned in a way that is
appropriate to the juror’s questionnaire answers and
then to the preceding voir dire answers.” J.A. 498. It
accordingly recognized that “sometimes we do have to
get more specific because of what the juror says,” J.A.
503, and allowed respondent to ask many prospective
jurors questions like the ones that he had proposed asking all prospective jurors, see p. 10, supra.
2. The court of appeals erred not only by wresting
control of the jury-selection process from the decisionmaker best situated to manage it, but also by warping the process from case-specific to invariant. The
court’s invocation of its “supervisory power,” Pet. App.
56a-57a (citation omitted), does not justify such an approach. See, e.g., Jones v. United States, 527 U.S. 373,
383 (1999) (rejecting supervisory rule requiring deadlock instruction in every capital case); see also, e.g.,
United States v. Hasting, 461 U.S. 499, 505 (1983).
As this Court explained in United States v. Payner,
447 U.S. 727 (1980), a federal court may not use its “supervisory power” to impose a rule that this Court has
32
specifically rejected after weighing the same interests.
Id. at 731. In particular, Payner observed that “the supervisory power does not authorize” a suppression rule
where the Court’s own “Fourth Amendment decisions
have established beyond any doubt that the interest in
deterring illegal searches does not justify the exclusion
of tainted evidence.” Id. at 735. The Court emphasized
that the “values assigned to the competing interests do
not change because a court has elected to analyze the
question under the supervisory power instead of the
Fourth Amendment.” Id. at 736. Under either framework, “the need to deter the underlying conduct and the
detrimental impact of excluding the evidence remain
precisely the same.” Ibid.
Payner’s analysis undermines the supervisory rule
adopted by the court of appeals here. As noted above,
this Court specifically held in Mu’Min that questions
“about the specific contents of the news reports to which
[prospective jurors] had been exposed” are not a constitutional prerequisite for selecting impartial jurors. 500
U.S. at 417; accord Skilling, 561 U.S. at 386 (“No hardand-fast formula dictates the necessary depth or
breadth of voir dire.”); United States v. Wood, 299 U.S.
123, 145-146 (1936) (explaining that, because impartiality “is a state of mind” rather than a “technical conception,” the Constitution “lays down no particular tests
and procedure is not chained to any ancient and artificial formula” for “ascertainment of this mental attitude”). The court of appeals accordingly erred in superseding Mu’Min with a supervisory rule based on its “individual judgment.” Payner, 447 U.S. at 737.
Although Mu’Min noted that a handful of circuits
(not including the court below) had issued pre-Mu’Min
decisions requiring publicity-content questions “in
33
some circumstances,” 500 U.S. at 426, the Court did not
approve a wooden rule of the sort that the court of appeals in this case laid down. And whatever the permissibility of such a rule before Mu’Min, one is insupportable now. The Court in Mu’Min reviewed both constitutional and supervisory-power precedents, and while
the Court recognized “more latitude * * * under [its]
supervisory power,” its ultimate rejection of the proposed rule relied on the “parallel themes” of “both sets
of cases.” Id. at 424; see id. at 422-424. One of those
themes was that “the trial court retains great latitude
in deciding what questions should be asked on voir
dire,” id. at 424—the very principle that the decision
below derogates.
Even where this Court has required inquiry into a
particular subject—for example, certain cases involving
possible racial bias—it has remained “careful not to
specify the particulars by which” courts must address
that subject. Mu’Min, 500 U.S. at 431. Whether it was
reviewing a state decision or a federal one, the Court
“did not, for instance, require questioning of individual
jurors about facts or experiences that might have led to
racial bias”—the equivalent of the granular questions
about the content of pretrial publicity the court of
appeals required here. Ibid. (describing Aldridge v.
United States, 283 U.S. 308 (1931)); see Rosales-Lopez
451 U.S. at 194-195 (Rehnquist, J., concurring in the
judgment) (rejecting a “per se rule” governing questioning on racial and ethnic prejudice in favor of an approach that leaves “more to the trial court’s discretion”). If even the “unique * * * concerns” of racial
bias, Pena-Rodriguez, 137 S. Ct. at 868, do not require
such questions, it follows that they are not invariably
34
necessary in the context of pretrial publicity, and that
the court of appeals erred in inflexibly mandating them.
3. The court of appeals purported to unearth its
wooden rule from Patriarca—a circuit decision that
predates Mu’Min by decades, did not explicitly invoke
supervisory powers, and involved (and affirmed) only
the denial of a venue transfer, not review of voir dire.
See Pet. App. 49a-60a; see also Patriarca, 402 F.2d at
317-318. To the extent that Patriarca set forth a mechanical requirement for every voir dire in a case with
substantial pretrial publicity, such a one-size-fits-all
rule lacks justification.
The Patriarca panel did not have the benefit of
Mu’Min and looked to jury-selection procedures proposed by the American Bar Association as a model for
its approach. See Patriarca, 402 F.2d at 318 (citing
1966 draft standards). But Mu’Min rejected reliance
on a later version of those same standards. 500 U.S. at
430-431 (citing 1980 standards). The decision below, in
turn, ascribed Patriarca’s “rationale” to a concern that
the judge have an adequate basis for the evaluation of
impartiality, which it feared might otherwise rest on a
prospective juror’s own assurances. Pet. App. 51a, 56a57a. But assessments of juror impartiality necessarily
rely on such assurances to a significant degree; that is
precisely why reviewing courts defer to trial courts’
ability to gauge a “prospective juror’s inflection, sincerity, demeanor, candor, body language, and apprehension of duty.” Skilling, 561 U.S. at 386. And while
“[q]uestions about the content of the publicity to which
jurors have been exposed might be helpful” in some
cases as part of the broader informational package,
35
Mu’Min, 500 U.S. at 425, such questions are not so universally necessary that inflexibly requiring them is an
appropriate prophylactic.
The court of appeals believed that the amount of publicity in this case demanded that content questions be
asked of all prospective jurors, see, e.g., Pet. App. 59a,
but the district court could reasonably determine that
the degree of publicity in fact cuts the opposite way.
This is not a case in which impartiality may have been
unduly influenced by some key piece of pretrial publicity that only some people saw. Cf. Rideau v. Louisiana,
373 U.S. 723, 724 (1963). Instead, it is a case with a massive volume of “largely factual” local and nationwide
pretrial coverage to which virtually every engaged U.S.
citizen was exposed. Pet. App. 47a, 53a. Only four of
the 1373 prospective jurors—three of whom had difficulty comprehending English or the questionnaire—
responded “none” to the question of how much media
coverage they had seen. See Gov’t C.A. Supp. App. 138,
150, 157, 169; Resp. C.A. Special App. 11,932-11,954,
26,129-26,130, 35,678-35,700. By necessity, jury selection for any trial of respondent anywhere would have
had to focus on “impartiality” rather than “ignorance.”
Skilling, 561 U.S. at 381 (emphasis omitted).
The ultimate inquiry of impartiality turns not on categorizing prospective jurors based on which specific
pieces of the unavoidable coverage they might have
seen, but instead on determining their mindsets heading into a trial. See Mu’Min, 500 U.S. at 425; cf. Patton
v. Yount, 467 U.S. 1025, 1035 (1984) (“The relevant
question is not whether the community remembered the
case, but whether the jurors * * * had such fixed opinions that they could not judge impartially the guilt of
36
the defendant.”). Moreover, as the district court recognized, it is doubtful that prospective jurors, two years
after the fact, could have produced a “reliable” list of
what they might specifically have seen and heard. J.A.
494. Thus, unless the court was prepared to disqualify
everyone whose recall seemed deficient, the parties and
the court would inevitably have had to evaluate prospective jurors without a complete—or, in many cases, even
close to complete—record of their media exposure. And
as the district court recognized, attempting to jog or
highlight memories about specific types of exposure—
e.g., newspaper columns expressing views on the death
penalty, Pet. App. 55a—would actually do more harm
than good by dredging up and emphasizing any prejudicial effect that the exposure might have had at the
time, see J.A. 494, 502-503. Cf. Shannon v. United
States, 512 U.S. 573, 586 (1994) (rejecting a supervisory
rule that would “draw the jury’s attention toward the
very thing * * * it should ignore”); Rosales-Lopez, 451
U.S. at 195 (Rehnquist, J., concurring in the judgment)
(rejecting a mandatory-questioning rule where such
questioning could “exacerbate whatever prejudice
might exist without substantially aiding in exposing it”).
4. This particular case was an especially inappropriate candidate for after-the-fact invalidation of the juryselection procedures. Even if the district court had
gleaned a supervisory rule from Patriarca, applying
that rule would have had little benefit. As the court of
appeals recognized, most of the publicity about this case
was either “true” and thus (among other things) subsumed within respondent’s admission of guilt, or else
“trivial” and thus not likely to bias jurors. Pet. App.
46a-47a; see id. at 60a, 61a n.33; cf. Beck v. Washington,
369 U.S. 541, 556 (1962) (distinguishing “straight news
37
stories” from “invidious articles which would tend to
arouse ill will and vindictiveness”).
In particular, the court of appeals pointed to little, if
anything, likely to have specifically biased the jury on
the penalty—the only portion of the verdict that the
court invalidated. Media coverage of “the opinions of
public officials” that capital punishment was appropriate, Pet. App. 53a, would largely have been duplicative
of the jury’s inherent awareness that federal officials
were seeking that penalty. And media coverage of opinions on the appropriate penalty included the views of
the Archbishop of Boston, the Boston Globe’s editorial
board, and 57% of Massachusetts residents that the
death penalty was not warranted. Resp. C.A. Special
App. 10,834, 11,047, 11,051. Moreover, as noted above
(p. 10, supra), respondent in fact asked his content questions to numerous prospective jurors, none of whom recalled seeing coverage relating to the death penalty.
Whatever supervisory power the court of appeals
may have to retroactively declare jury-selection procedures invalid, it abused that power in this case. All that
the court’s remand accomplishes here is to vitiate a
valid penalty that an impartial jury carefully recommended as to some counts but not others. Respondent’s
trial was lengthy and, for many victims of his crimes,
painful. The penalty-phase proceeding required many
victims to testify about the terror that respondent inflicted on them and the ways that their lives continue to
be permanently altered by his brutality. See pp. 13-14,
supra. Another penalty trial would come at the significant cost of requiring those victims to return to court to
“relive their disturbing experiences.” United States v.
Mechanik, 475 U.S. 66, 72 (1986). And it would entail
selecting a new jury through an unnecessarily onerous
38
process that promises to be even longer and more burdensome—but no more effective—than the original.
Nothing justifies that result.
II. THE COURT OF APPEALS ERRED IN ALTERNATIVELY
VACATING RESPONDENT’S CAPITAL SENTENCES
BASED ON HIS BROTHER’S ALLEGED INVOLVEMENT
IN DIFFERENT UNSOLVED CRIMES
The court of appeals’ alternative rationale for vacating respondent’s capital sentences—that the district
court abused its discretion by excluding evidence pertaining to the different and unsolved Waltham crimes—
was likewise flawed. The district court correctly determined, after viewing the key material in camera and
assessing it in relation to the evidence as a whole, that
any minimal probative value of the Waltham evidence
was outweighed by the danger of confusing or distracting the jury. And in any event, the record demonstrates
beyond a reasonable doubt that any error on that issue
was harmless. Even if jurors had found Todashev’s
Waltham story credible, Tamerlan’s alleged involvement in independent crimes almost two years before the
Boston Marathon bombing had no reasonable prospect
of altering the jury’s recommendation that respondent
should receive the death penalty for his own acts of terrorism. 2
Respondent has contended (Br. in Opp. 10) that the court of
appeals’ conclusion that Brady v. Maryland, 373 U.S. 83 (1963),
required disclosure of Todashev’s statements to investigators supplied another “independent ground[ ]” for the court’s judgment. As
the government has previously explained (Cert. Reply Br. 8-10),
that contention is incorrect. Both respondent and the court of appeals treated his Brady argument as intertwined with his argument
for introducing the Waltham evidence as mitigation. See, e.g., Pet.
App. 72a (describing respondent’s Brady argument that Todashev’s
2
39
A. The District Court Did Not Abuse Its Discretion In
Declining To Admit The Waltham Evidence
1. The Federal Death Penalty Act of 1994, 18 U.S.C.
3591 et seq., supplies specialized standards for the admission of evidence in capital-sentencing proceedings.
It safeguards a defendant’s constitutional right to introduce mitigating evidence by allowing him to offer “any
information relevant to a mitigating factor” at the
penalty-phase proceeding, “regardless of its admissibility under” other evidentiary rules. 18 U.S.C. 3593(c);
see Eddings v. Oklahoma, 455 U.S. 104, 112 (1982). At
the same time, the statute enables district courts to
keep the penalty phase properly focused by placing special emphasis on courts’ traditional discretion to exclude
evidence “if its probative value is outweighed by the
danger of creating unfair prejudice, confusing the issues, or misleading the jury.” 18 U.S.C. 3593(c).
In requiring “only that the countervailing interests
‘outweigh’ the information’s probative value” for exclusion, Section 3593(c) differs from Federal Rule of Evidence 403, which requires that “the countervailing interests ‘substantially outweigh[ ] the evidence’s probative value.’ ” United States v. Lujan, 603 F.3d 850, 854
(10th Cir. 2010), cert. denied, 562 U.S. 1303 (2011). And
an appellate court reviews a district court’s application
of that permissive standard only “for abuse of discretion.” United States v. Sampson, 486 F.3d 13, 42 (1st
Cir. 2007), cert. denied, 553 U.S. 1035 (2008); see Pet.
statements, “ ‘if presented,’ would have” been mitigating). If this
Court agrees with the government either that all the Waltham evidence was properly excluded under 18 U.S.C. 3593(c) or that excluding it did not affect the outcome of the penalty proceeding, then it
necessarily follows that respondent was not prejudiced by any withholding.
40
App. 72a-73a & n.40. Such review recognizes the district court’s “familiarity with the details of the case and
* * * greater experience in evidentiary matters,” Sprint/
United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384
(2008), and requires “great deference to the trier’s firsthand knowledge,” Sampson, 486 F.3d at 42. Reversal is
warranted only if the district court’s “judgment is
plainly incorrect.” Ibid.
2. The district court did not abuse its discretion in
declining to allow respondent to inject the disputed
Waltham issue into the penalty phase of his trial for
bombing the Boston Marathon. Instead, the court reasonably determined that any attenuated relevance of
the Waltham murders did not warrant inviting a complicated minitrial about that unsolved crime. See, e.g.,
United States v. Umaña, 750 F.3d 320, 350-351 (4th Cir.
2014) (finding no abuse of discretion in denial of capital
defendant’s request to admit evidence of separate murders where “the process would amount to mini-trials
that would take days and distract the jury”), cert.
denied, 576 U.S. 1035 (2015); United States v. Mitchell,
502 F.3d 931, 991-992 (9th Cir. 2007) (finding no abuse
of discretion where “more information” about “separate
murders would confuse the issues and mislead the
jury”), cert. denied, 553 U.S. 1094 (2008).
Even if Todashev’s story were to be believed, the
Waltham crime’s participants, manner, and motivation
all differ markedly from the Boston Marathon bombing.
Todashev’s claim was that Tamerlan had recruited
Todashev to participate in a robbery for money and then
decided on the spur of the moment to kill the victims—
by himself—to eliminate any witnesses. Pet. App. 65a66a. The marathon bombing, in contrast, was a preplanned terrorist attack in which respondent personally
41
murdered multiple “innocent people” in furtherance of
his own expressly declared jihadist aspirations. J.A.
204; see, e.g., J.A. 118 (seeking the “[h]ighest level of
Jannah [paradise]”); J.A. 117 (“I wanna bring justice for
my people.”); J.A. 203-204 (“I ask Allah to make me a
shahied [martyr].”).
Respondent’s attempt to link the Waltham murders
to his culpability for the marathon bombing involved
multiple complicated and contested steps that would
have required jurors to evaluate the credibility of
Todashev’s allegations not only that Tamerlan committed the Waltham murders, but also that Tamerlan did
so in the particular way that Todashev claimed. Such
an assessment would have been extremely difficult
given that “the only identified suspects—Tamerlan and
Todashev—were both dead.” Pet. App. 87a. The district court thus correctly observed, after reviewing in
camera the FBI report describing Todashev’s interview
in detail, that the Waltham evidence gave the jury no
way to sort out the truth. J.A. 650.
As the district court pointed out, the evidence made
it just as likely that “Todashev was the bad guy and
Tamerlan was the minor actor.” J.A. 650. Following the
murders, Todashev threw out his cell phone and left
Massachusetts under a false name. J.A. 963-964. Tamerlan, in contrast, remained in town and even socialized
with the younger brother of one of the Waltham victims.
See J.A. 969. When investigators challenged Todashev’s denial of involvement in the Waltham crime,
Todashev had every reason to deflect blame for the
murders by minimizing his own role and exaggerating
Tamerlan’s, especially because Tamerlan was dead and
could not rebut Todashev’s account. Todashev’s violent
attack on the armed investigators shortly thereafter,
42
while writing out a confession, casts even further doubt
on his veracity. See J.A. 918; J.A. 575-579 (report finding officer-involved shooting of Todashev justified).
The district court was not required to sidetrack the
penalty phase of respondent’s trial for the Boston Marathon bombing by inviting jurors to determine what really happened during the Waltham crimes. If anything,
Todashev’s story tends to undercut, rather than support, respondent’s suggestion that Tamerlan strongarmed him into participating in the marathon bombing. Todashev did not say that he was intimidated or
influenced to commit an act of extreme cruelty in Waltham; instead, he told investigators that he opted out of
murdering the drug dealers whom he had agreed to rob.
J.A. 947-948; see J.A. 939-941. Thus, according to Todashev, Tamerlan was unable to persuade or coerce him
into committing murder, even though Tamerlan was
armed with a gun and argued that they needed to kill
the victims to avoid leaving witnesses. See J.A. 947.
And Todashev did not indicate that Tamerlan retaliated
against him, or even threatened to do so, for declining
to participate in the killings.
The Waltham evidence also undercut, or at least
complicated, respondent’s theory that his willingness to
commit murder was solely the result of Tamerlan’s influence. Respondent’s friend Kadyrbavev’s proffer that
respondent had described Tamerlan as committing “jihad” in Waltham, J.A. 583-584, indicated that respondent admired Tamerlan’s perceived religiously motivated murder, not that he saw Tamerlan’s actions as intimidating. At a minimum, the sum of the Waltham evidence fails to offer meaningful support to the notion
that respondent’s own willingness to kill innocent peo-
43
ple was the unwanted end-product of religious indoctrination by Tamerlan. Respondent’s asserted theory of
relevance did not warrant inserting the trial of another
crime, not involving respondent, into the penalty phase
of his own trial.
3. Neither the court of appeals nor respondent has
offered any sound basis for second-guessing the district
court’s Section 3593(c) determination and ordering a
new sentencing proceeding that would include a minitrial of the Waltham murders. The court of appeals
focused heavily on Todashev’s statement that he “did
not have a way out,” deeming it evidence that Todashev
acceded to “commit[ing] acts of brutality” because he
was afraid of Tamerlan. Pet. App. 75a-76a; see id. at
77a n.43, 78a. But context does not support that interpretation. Todashev clearly did think he had a “way
out” of committing murder at Tamerlan’s behest—he
told investigators that he declined to do so. J.A. 945949. The “no way out” statement instead reflects Todashev’s claimed realization that once Tamerlan had killed
the victims, “it was too late” for Todashev to avoid participating in the crime, which is why he “went back in
and helped” Tamerlan wipe the scene of fingerprints.
J.A. 948-949.
The court of appeals took the view that the Waltham
evidence must have been substantially probative, because the district court 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.” Pet. App. 77a. But whatever the probative
weight of those other incidents, which the court of
appeals viewed as evidence of Tamerlan’s “domination,”
ibid., they do not suggest that the district court was
compelled to admit Todashev’s unverified story, in
44
which Tamerlan allowed Todashev to opt out of committing murder. In any event, those incidents, unlike the
Waltham murders, did not risk distracting the jurors by
requiring them to sort through conflicting evidence in
an attempt to discern the relevance, if any, of a separate
unsolved crime.
Respondent and the court of appeals have suggested
(Pet. App. 82a; Br. in. Opp. 20-21) that a new penalty
proceeding would not require a minitrial, on the theory
that the government essentially forfeited its right to
contest Todashev’s story when an FBI agent “swore out
an affidavit” for a search warrant for Tamerlan’s car
“saying that there is probable cause to believe that
Todashev and Tamerlan planned and carried out” the
Waltham murders. Pet. App. 81a n.47; see J.A. 9831003. The court of appeals believed that the district
court was not aware of that affidavit when it found the
Waltham evidence “unreliable.” Pet. App. 68a; see Br.
in Opp. 21. In fact, however, the district court knew
about the search-warrant affidavit when it made its Section 3593(c) determination, which was based on a
firsthand view of the evidence as a whole. See J.A. 552553, 640, 970-971.
Contrary to the court of appeals’ suggestion, the
affidavit provided no basis for limiting the discussion of
the Waltham evidence. In truthfully describing what
Todashev had claimed, the affidavit simply represented
that Todashev’s story supported further investigation—
not that it was necessarily accurate, let alone accurate
in all of its particulars. See Franks v. Delaware, 438
U.S. 154, 164-165 (1978) (explaining that a warrant affidavit need not be “ ‘truthful’ in the sense that every fact
recited in the warrant affidavit is necessarily correct,
45
for probable cause may be founded upon hearsay and
upon information received from informants”).
Nor did the district court have any other apparent
way to cabin the scope of a Waltham inquiry. Opening
the door by admitting any reference to the separate
Waltham crimes would have invited a lengthy discussion of Todashev’s claims and the many problems with
his credibility. The district court did not abuse its discretion by declining to send the jury on a long and convoluted detour to explore what was at most an ancillary
matter.
B. Any Error In The District Court’s Handling Of The
Waltham Issue Was Harmless Beyond A Reasonable
Doubt
Even assuming that the district court abused its
broad discretion by excluding the Waltham evidence,
the record definitively establishes that introducing that
evidence would not have changed the outcome of respondent’s penalty proceeding. Thus, any error would
not entitle respondent to vacatur of his sentences. See
18 U.S.C. 3595(c)(2) (“The court of appeals shall not reverse or vacate a sentence of death on account of any
error which can be harmless * * * where the Government establishes beyond a reasonable doubt that the
error was harmless.”); Skipper v. South Carolina, 476
U.S. 1, 7-8 (1986) (reviewing the exclusion of mitigating
evidence for harmless error).
The court of appeals’ speculation that jurors might
have concluded that respondent was intimidated by
Tamerlan into committing the marathon bombing, Pet.
App. 76a, was overwhelmingly refuted by the trial evidence, which confirmed that respondent had a life and
mind independent of Tamerlan’s. Respondent lived 60
miles away from Tamerlan, with his own car and his own
46
friends. See J.A. 690, 889. He used his own computer
to read al Qaeda propaganda that encouraged terrorist
attacks and gave instructions on making shrapnel
bombs to “damage the enemy.” See J.A. 99-112, 890899. He texted a friend and tweeted about martyrdom
and jihad. See J.A. 113 (saying “killing Muslims is the
only promise” both 2012 presidential candidates “will
fulfill”); J.A. 121 (praying for “victory over kufr [infidels]”); J.A. 118 (seeking “[h]ighest level of Jannah”).
Additional evidence confirmed that respondent was
a willing participant in terrorism, not a reluctant accessory. The jury watched a video of him separating from
his brother and then selecting a crowded outdoor patio
with children present as the target for his shrapnel
bomb, designed and built to cause maximum suffering
and death. See Exhibit 22, at 6:45-7:55; J.A. 124. After
the bombing, respondent chose to meet back up with
Tamerlan, and he returned to college where he showed
no signs of remorse. He looked again at the al Qaeda
magazine with the bomb-making instructions, J.A. 103;
he went to the gym with a friend, Exhibits 1181-1183;
and he tweeted “I’m a stress free kind of guy,” J.A. 145.
When a friend texted him about being a bombing suspect, respondent texted back “Lol [laughing out loud].”
J.A. 146. A few days later, respondent again joined with
Tamerlan in murdering Officer Collier, carjacking Dun
Meng, and attempting to kill police officers during the
Watertown shootout. See Pet. App. 7a-9a.
Respondent never offered a single piece of evidence
to suggest that he attempted to get out from under
his brother’s purported influence or felt apprehension
about his crimes. The jury instead saw compelling
evidence—including video evidence—showing just the
47
opposite. While separated from Tamerlan at the marathon, respondent killed two people and mutilated several more with his own bomb. Exhibits 22, 23, 1634C.
While holding Dun Meng a prisoner in his carjacked
SUV, respondent casually shopped for snacks at a convenience store. Exhibit 748. When officers tracked him
to Watertown, respondent threw explosives at them and
tried to run them (and Tamerlan) over. J.A. 180. And
when hiding alone in the boat, believing that Tamerlan
had died, respondent wrote that he was “jealous” of
Tamerlan’s martyrdom, that he hoped for his own martyrdom, and that his terrorist actions were justified
because of perceived wrongdoing by the American government. J.A. 203-204.
In the face of that evidence, no reasonable prospect
exists that Todashev’s Waltham story would have
changed the jury’s determination that respondent deserved the ultimate punishment for his horrific crimes.
Respondent nevertheless contends that the jury was
“receptive” to the argument that Tamerlan had influenced him, because it “rejected a death sentence for all
counts based on acts for which Tamerlan was present.”
Br. in Opp. 22-23; see J.A. 619-621 (verdict form). But
the jury’s verdict in fact confirms the irrelevance of the
Waltham issue by demonstrating that the jury carefully
considered each of respondent’s crimes and determined
that capital punishment was warranted for the horrors
that he personally inflicted—setting down a shrapnel
bomb in a crowd and detonating it, killing a child and a
promising young student, and consigning several others
“to a lifetime of unimaginable suffering.” Pet. App. 6a.
That determination by 12 conscientious jurors deserves
respect and reinstatement by this Court.
48
CONCLUSION
The judgment of the court of appeals should be reversed.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Acting Solicitor General
JOHN C. DEMERS
Assistant Attorney General
NICHOLAS L. MCQUAID
Acting Assistant Attorney
General
ERIC J. FEIGIN
Deputy Solicitor General
CHRISTOPHER G. MICHEL
MICHAEL R. HUSTON
Assistants to the Solicitor
General
WILLIAM A. GLASER
JOSEPH F. PALMER
Attorneys
JUNE 2021
APPENDIX
1.
18 U.S.C. 3593(c) provides:
Special hearing to determine whether a sentence of death
is justified
(c) PROOF OF MITIGATING AND AGGRAVATING
FACTORS.—Notwithstanding rule 32 of the Federal
Rules of Criminal Procedure, when a defendant is found
guilty or pleads guilty to an offense under section 3591,
no presentence report shall be prepared. At the sentencing hearing, information may be presented as to any
matter relevant to the sentence, including any mitigating or aggravating factor permitted or required to be
considered under section 3592. Information presented
may include the trial transcript and exhibits if the hearing is held before a jury or judge not present during the
trial, or at the trial judge’s discretion. The defendant
may present any information relevant to a mitigating
factor. The government may present any information
relevant to an aggravating factor for which notice has
been provided under subsection (a). Information is admissible regardless of its admissibility under the rules
governing admission of evidence at criminal trials except that information may be excluded if its probative
value is outweighed by the danger of creating unfair
prejudice, confusing the issues, or misleading the jury.
For the purposes of the preceding sentence, the fact that
a victim, as defined in section 3510, attended or observed
the trial shall not be construed to pose a danger of creating unfair prejudice, confusing the issues, or misleading the jury. The government and the defendant shall
be permitted to rebut any information received at the
hearing, and shall be given fair opportunity to present
(1a)
2a
argument as to the adequacy of the information to establish the existence of any aggravating or mitigating
factor, and as to the appropriateness in the case of imposing a sentence of death. The government shall open
the argument. The defendant shall be permitted to reply. The government shall then be permitted to reply
in rebuttal. The burden of establishing the existence
of any aggravating factor is on the government, and is
not satisfied unless the existence of such a factor is established beyond a reasonable doubt. The burden of
establishing the existence of any mitigating factor is on
the defendant, and is not satisfied unless the existence
of such a factor is established by a preponderance of the
information.
2.
18 U.S.C. 3595(c) provides:
Review of a sentence of death
(c) DECISION AND DISPOSITION.—
(1) The court of appeals shall address all substantive and procedural issues raised on the appeal of
a sentence of death, and shall consider whether the
sentence of death was imposed under the influence of
passion, prejudice, or any other arbitrary factor and
whether the evidence supports the special finding of
the existence of an aggravating factor required to be
considered under section 3592.
(2)
Whenever the court of appeals finds that—
(A) the sentence of death was imposed under
the influence of passion, prejudice, or any other
arbitrary factor;
3a
(B) the admissible evidence and information
adduced does not support the special finding of the
existence of the required aggravating factor; or
(C) the proceedings involved any other legal
error requiring reversal of the sentence that was
properly preserved for appeal under the rules of
criminal procedure,
the court shall remand the case for reconsideration
under section 3593 or imposition of a sentence other
than death. The court of appeals shall not reverse
or vacate a sentence of death on account of any error
which can be harmless, including any erroneous special finding of an aggravating factor, where the Government establishes beyond a reasonable doubt that
the error was harmless.
(3) The court of appeals shall state in writing the
reasons for its disposition of an appeal of a sentence
of death under this section.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.