United States District Court, D. Massachusetts
OPINION AND ORDER
GEORGE A. O’TOOLE, JR. UNITED STATES DISTRICT JUDGE
Dzhokhar Tsarnaev was tried on a thirty-count indictment arising out of the bombings at the Boston Marathon on April 15, 2013. Jury selection for his trial began January 5, 2015. On April 8, 2015, the jury returned a verdict in the first phase of his capital trial finding him guilty under all counts. The maximum penalty for seventeen of the crimes was death. On May 15, 2015, the jury returned its verdict in the second phase of the trial, deciding that the death penalty should be imposed on six of the seventeen capital counts, but not on the other eleven. On June 24, 2015, the Court sentenced the defendant to death on those six counts in accordance with the jury’s verdict and to various terms of imprisonment on the remaining counts.
On July 6, 2015, the defendant moved for a new trial in the interests of justice pursuant to Federal Rule of Criminal Procedure 33 and, in the alternative, for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. In his motion, he reiterates some grounds for such relief that he had previously raised before or during trial. As to those grounds that are repeated from prior written or oral motions, both aspects of the present motion are denied for the same reasons the prior motions were denied. As to most of them, no further discussion is necessary; the issues are preserved for the defendant on appeal.
He repeats his objection to trial in this District, and the reasons for denying his renewed attack on venue are discussed below.
Lastly, he argues that all of his convictions under 18 U.S.C. § 924(c) for carrying a firearm during and in relation to a crime of violence must be vacated. His argument is based first on issues he claims arise from the Supreme Court’s decision, issued days after he was formally sentenced, declaring a portion of the Armed Career Criminal Act unconstitutionally vague. See Johnson v. United States, 135 S.Ct. 2551 (2015). He also argues that his § 924(c) convictions must be set aside because it cannot properly be determined whether the various underlying crimes were “crime[s] of violence” in the necessary sense.
The Court permitted an extended briefing schedule and, after oral argument on a portion of the defendant’s motion, allowed the parties to file supplemental memoranda. This Opinion and Order resolves the issues raised by the post-trial motion.
The issue of venue has been previously litigated in this case and extensively addressed in opinions of this Court and of the Court of Appeals. The defendant now again renews his venue argument, contending generally that local media coverage, local events, and information or postings on social networks during the course of the trial should raise a presumption of prejudiceand require a conclusion that the District of Massachusetts was an improper venue for his trial. The defendant’s opening brief contains only limited references to legal authority, but he appears to be raising the claim under both the Sixth Amendment to the Constitution and Federal Rule of Criminal Procedure 21(a), although he does not distinguish between them.
In Skilling v. United States, the Supreme Court identified four factors generally relevant to a determination whether a presumption of prejudice should be indulged: (1) the size and characteristics of the community in which the crime occurred; (2) the nature of the publicity surrounding the case; (3) the time between the crime and the trial; and (4) whether the jury’s decision indicated bias. 561 U.S. 358, 382-84 (2010); see also United States v. Casellas-Toro, 807 F.3d 380, 386 (1st Cir. 2015); In re Tsarnaev, 780 F.3d 14, 20-21 (1st Cir. 2015) (per curiam).The defendant does not expressly articulate a legal framework for analyzing his claim, but it appears he seeks to advance an argument related primarily to the second and third factors. For the sake of completeness, in this post-trial analysis I will address all four Skilling factors.
A. Size and Characteristics of the Community
As has been previously described, see In re Tsarnaev, 780 F.3d at 21; United States v. Tsarnaev, Cr. No. 13-10200-GAO, 2014 WL 4823882, at *2 (D. Mass. Sept. 24, 2014), Boston is located in a large, diverse metropolitan area. The geographic region from which the jury was drawn, the Eastern Division of the District of Massachusetts, includes about five million people living not just in Boston, but also in smaller cities and towns, encompassing urban, suburban, rural, and coastal communities. Residents in the area obtain their daily news from a variety of sources. In re Tsarnaev, 780 F.3d at 21. In light of these facts, this factor weighs against a finding of presumed prejudice. Compare Skilling, 561 U.S. at 382 (stating that “large, diverse pool” of approximately 4.5 million eligible jurors in Houston area made the “suggestion that 12 impartial jurors could not be empaneled . . . hard to sustain”), and United States v. Yousef, No. S12 93 CR. 180 (KTD), 1997 WL 411596, at *3 (S.D.N.Y. July 18, 1997) (noting in pre-Skilling case that the district was one of the “largest and most diverse in the country” (quoting United States v. Salameh, No. S5 93 Cr. 0180 (KTD), 1993 WL 364486, at *1 (S.D.N.Y. Sept. 15, 1993))), with Rideau v. Louisiana, 373 U.S. 723 (1963) (remarking that community where the crime occurred was a small parish of only 150, 000 people), and Casellas-Toro, 807 F.3d at 386-87 (explaining district court acknowledgement that, although Puerto Rico has a population of 3 million people, a fact tending to mitigate the potential for prejudice, Puerto Rico is “a compact, insular community . . . highly susceptible to the impact of local media” (citation omitted)).
B. Nature of the Publicity
The main basis for the defendant’s motion appears to be the extent and nature of the publicity concerning the case itself and the events at issue in it. In his post-trial motion, he focuses largely on media coverage concerning observances of the anniversary of the bombings, the 2015 Boston Marathon itself, and publicity about victims; coverage of foreign family witnesses; physical surroundings of the courthouse; and social media.
i. Marathon-related media coverage
The defendant relies heavily on local marathon-related media coverage. It is certainly true that the local media gave substantial coverage to the anniversary of the bombings, its victims, and the 2015 marathon. What the defendant disregards, however, is the national-and international- interest in those same events and people. This was not a crime that was unknown outside of Boston. To the contrary, media coverage of the bombings when they occurred was broadcast live around the world over the Internet and on television. Contrast Casellas-Toro, 807 F.3d at 388 (noting that defendant “would be relatively unknown outside of Puerto Rico”). The defendant’s own pretrial poll, for instance, show that even in his preferred venue, Washington, D.C., those polled overwhelmingly were familiar with the bombings. (Reply to Gov’t’s Opp’n to Def.’s Mot. for Change of Venue and Submission of Supp. Material in Supp. Ex. 4F at 4 (dkt. no. 461-23)); see also In re Tsarnaev, 780 F.3d at 16 (96.5% of survey respondents).
Nor did the crime affect an event about which only Bostonians are concerned. Although the Boston Marathon is an important event in the city and region, it is also an iconic event known worldwide. According to testimony by the executive director of the Boston Athletic Association, the organization which hosts the Boston Marathon, the race was originally known as “America’s Marathon.” (Mar. 4, 2015 Tr. of Jury Trial - Day Twenty-Seven at 69 (dkt. no. 1528).) Because “it is the only marathon outside of the Olympic Games and the world championships for which one needs to qualify in order to run, . . . it’s an aspiration for a great many people.” (Id. at 68.) It “attracts some of the finest competitors in the world.” (Id. at 70.) The approximately 27, 000 registered runners come from all 50 states and many countries. (Id. at 68, 75.) At least 40% of them are from “outside Massachusetts and New England.” (Id. at 75.) Similarly, spectators include not only people from the Boston area but also many visitors from elsewhere, coming to watch friends and family members participating in the race. (Id. at 73.) Like the Olympic Games, the event receives worldwide media coverage. In recent years, approximately 1, 000 media credentials have been issued to representatives of about 80 registered news organizations. (Id. at 80.) The marathon is broadcast live locally, nationally, and internationally to about 20 countries, and it is also live-streamed over the Internet. (Id. at 80-81.)
Not surprisingly, then, the pretrial and trial proceedings were covered not only locally but also nationally and internationally. National and international news outlets comprised approximately two-thirds of the media organizations that requested one of the thirty seats reserved for media in the trial courtroom and more than one-half of the media organizations that were ultimately assigned a seat or rotating seat there. Many others followed the proceedings from overflow rooms in the courthouse. Newspapers around the world closely followed the trial as it unfolded, both in their print editions and on the Internet, focusing not just on the more significant trial events like opening statements and closing arguments, but even on the more particular aspects of the legal process. There is no reason to think-and certainly no specific evidence-that this extensive coverage would have been any different in kind or degree if the trial had been conducted elsewhere.
Moreover, there is no reason to think that if the trial had been moved to another district, the local media in that district would not also have given it attentive coverage. What was first a national story would have become a local story in that venue. It surely is not plausible to believe that if the trial had been moved to the District of Columbia, as the defendant sought, the Washington Post, which covered the trial as a national story, would have ignored it as a local one, and residents of the vicinage from which jurors would have been drawn would have been exposed to that local, as well as national, reporting. In this case, that would likely have been inevitable wherever the trial was held.
I also disagree with the defendant’s implicit assertion that the local coverage of the trial was prejudicial to him simply because there was coverage. Not only was the coverage generally factual in nature, rather than inflammatory, but with regard to the appropriate punishment for his crimes much of it skewed in the defendant’s favor. For example, as trial proceeded, media coverage regarding the appropriate punishment suggested a growing disapproval of the imposition of the death penalty by residents in the Boston area. One poll released by Boston’s National Public Radio news station in March showed that the death penalty was not a popular choice in the community. Zeninjor Enwemeka, WBUR Poll: Most in Boston Think Tsarnaev Should Get Life in Prison over Death Penalty, WBUR News, Mar. 23, 2015, http://www.wbur.org/2015/03/23/wbur-poll-tsarnaev-death-penalty-life-in-prison (27% in Boston and 38% in Boston area favored execution as penalty). According to a later poll, the percentage of poll respondents in favor of a death sentence for the defendant decreased slightly as the case proceeded to the penalty phase. Asma Khalid, Death Penalty for Tsarnaev Increasingly Unpopular, WBUR Poll Finds, WBUR News, Apr. 16, 2015, http://www.wbur.org/2015/04/16/tsarnaev-death-penalty-poll-wbur (26% in Boston and 31% in Boston area favored execution). As the penalty phase continued, a poll conducted by the Boston Globe indicated that support for the imposition of the death penalty had declined further. Evan Allen, Few Favor Death for Tsarnaev, Poll Finds, Bos. Globe, Apr. 27, 2015, at A (15% in Boston and 19% in Massachusetts favored execution).
Both local and national media reported on statements of victims’ family members, elected officials, religious leaders, and other organizations opposing the imposition of the death penalty for the defendant’s crimes. For example, during the penalty phase of the trial, the parents of Martin Richard, the eight-year old boy killed by the bomb placed by the defendant, urged the prosecution not to pursue imposition of the death penalty in a letter published on the front page of the Boston Globe. Bill and Denise Richard, To End the Anguish, Drop the Death Penalty, Bos. Globe, Apr. 17, 2015, at A. The media also reported statements by two amputee victims and a social media post by the sister of Sean Collier, the police officer killed in the aftermath of the bombings, conveying their opposition to the imposition of the death penalty in this case. Eric Moskowitz, 2 More Oppose Death for Tsarnaev, Bos. Globe, Apr. 20, 2015, at B; John R. Ellement, Victim’s Sister Still Against Death Penalty, Bos. Globe, Apr. 14, 2015, at B. There were published reports of similar statements by the Massachusetts Attorney General, both United States Senators, a local bar association, area Catholic leaders, veterans, and others. See, e.g., David Scharfenberg, Most Top Lawmakers Oppose Execution in Bombing Case, Bos. Globe, Apr. 10, 2015, at A; Associated Press, AG Healey: Marathon Bomber Should Spend Rest of Life in Jail, Bos. Herald, Apr. 8, 2015, http://www.bostonherald.com/newsopinion/localcoverage/2015/04/aghealeymarathonbom bershouldspendrestoflifeinjail; Bob Oakes, Why the Boston Bar Association Wants the Death Penalty Removed from Tsarnaev Trial, WBUR News, Feb. 25, 2015, http://www.wbur.org/2015/02/25/why-boston-bar-opposes-death-penalty-tsarnaev; Cardinal Seán P. O’Malley, Letter, Bishops Oppose Death Penalty, Taunton Daily Gazette, Apr. 10, 2015, at A4; Danny McDonald, Vets for Peace: Spare Tsarnaev, Metro - Bos., Apr. 21, 2015. Shortly before the jury began deliberations in the penalty phase, an anti-death penalty forum on the topic “Beyond the Death Penalty: A Public Conversation with Family Members of Murdered Victims, ” sponsored mostly by local organizations opposing capital punishment, was held in Boston. Juan Esteban Cajigas Jimenez, As Tsarnaev Trial Nears End, Death-Penalty Opponents Address Forum, Bos. Globe, May 12, 2015, at A. No doubt, these expressions were directed to the prosecution team in an effort to persuade the government to abandon its pursuit of the death penalty. The point to be made is that, even if the trial jurors saw and absorbed the extensive media coverage during the penalty phase, and I have no evidence whatsoever to believe that they did (and do have their repeated assurances to me that they did not), the coverage was not of a nature that would support a conclusion-or even a justifiable presumption-that the defendant was unfairly prejudiced by such exposure.
In sum, the extensive coverage of the trial was not limited to this District. Contrast Casellas-Toro, 807 F.3d at 388. Consequently, moving the trial to another venue would not likely have eliminated or even substantially reduced the coverage. Furthermore, the media coverage of the trial as it unfolded was not demonstrably prejudicial to the defendant. And finally, the jurors gave repeated assurances that they were avoiding media reports about the case.
ii.“Media Circus” over Foreign Witnesses
The defendant complains about media coverage of the arrival and lodging of several witnesses who traveled from overseas to the United States with the government’s assistance and pursuant in part to a court order. It is unclear how the circumstances of the travel and lodging of the foreign witnesses contribute to the defendant’s venue arguments. The defendant describes a “media circus” surrounding the witnesses, but he does not suggest either that the jurors were at all aware of the so-called “circus”-there is no information suggesting that they were-or that it disrupted the court proceedings in any way.
As to court proceedings more broadly, it is an obvious fact but it bears emphasizing that throughout the trial, the atmosphere within the trial courtroom itself was quite solemn and essentially undisturbed by interruption throughout the trial proceedings. Prior to trial, I issued a Decorum Order governing trial conduct and prohibiting observers from any contact with jurors or depictions of them or reports of their names. (Decorum Order at 1-5 (dkt. no. 879).) The defendant does not contend that the Order was violated either by the media or general public.
For those who were not present, a brief description of the courtroom may be helpful. About thirty seats in the gallery were reserved for media representatives, who were able to take notes but not photograph or record the proceedings. The remaining seats, numbering about eighty, were reserved for the defense and government teams, the defendant’s family and supporters, victims and their advocates, law enforcement personnel, and members of the general public. There were no substantial disruptions of any kind; proper decorum was observed by all in attendance. There is no reason at all to believe the sitting jurors could have been affected in any way by the presence or deportment of the people in the gallery, except, perhaps, to be impressed by their good behavior. Contrast Sheppard v. Maxwell, 384 U.S. 333, 353, 355, 358 (1966) (noting that “bedlam reigned at the courthouse during the trial and newsman took over practically the entire courtroom, ” thrusting jurors “into the role of celebrities” and creating a “carnival atmosphere”); Estes v. Texas, 381 U.S. 532, 536 (1965) (describing how reporters and television crews overran the courtroom with “considerable disruption” so as to deny the defendant the “judicial serenity and calm to which [he] was entitled”).
Outside the courthouse, reporters and cameras were organized in an orderly way so that they could report on the comings and goings of various trial participants, including the foreign witnesses. On most days, a small number of people demonstrated against the death penalty and, on occasion, individuals demonstrated in general support of the defendant. Except that a relatively large number of people were positioned outside the entrance to the courthouse, there was to my knowledge nothing approaching a “circus” atmosphere.
In any event, the jurors did not enter the courthouse through the main entrance. Rather, they assembled at a remote location and travelled together by van directly into the garage of the building, bypassing the front and side doors to the courthouse. So even if there were some legitimate concern about the number of people at the front entrance, which I do not share, the jurors were not exposed to it in any significant way. Similarly, when they were not in the trial courtroom, jurors were in limited access space behind the courtroom where the media and other members of the general public are not permitted. (See Jury Management and Transportation Order at 1-3 (dkt. no. 1113) (under seal).) After they were seated and sworn, the jurors were never in the public spaces of the courthouse where they might have observed either media representatives or members of the public.
I am fully satisfied that the Decorum Order was effectively implemented and observed. Within and around the courthouse, the defendant was not deprived of the ...