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United States v. Tsarnaev

United States District Court, D. Massachusetts

November 20, 2018

UNITED STATES OF AMERICA
v.
DZHOKHAR A. TSARNAEV, Defendant.

          ORDER

          GEORGE A. O'TOOLE, JR. UNITED STATES DISTRICT JUDGE

         This Order resolves several of the pending motions:

         The parties have filed a Joint Motion to Unseal Specified Transcripts and Pleadings (dkt. no. 1737). Having considered the parties' submissions regarding the unsealing, the Court hereby directs the Clerk's Office to unseal the following entries and attached documents:

145 575 1105-1 1444 1541 1613 1658
146 599 1146 1445 1548 1621 1663
327 600 1170 1446 1553 1629 1664
411 602-8 1243 1509 1562 1630 1666
413 867 1297 1510 1573 1631 1670
429 868 1306 1521 1574 1632 1671
435 1034 1326 1526 1577 1633 1735
436 1100-1 1327 1527 1586 1656 1740
574 1100-3 1395 1540 1602 1657

         In addition, the following documents and docket entries shall have redacted copies of the sealed documents proposed by the parties (see dkt. nos. 1737 and 1739) added to the public docket:[1]

987

1008

1012

1019

1041

1075

1100-2

988

1009

1013

1024

1049

1083

1100-4

1006

1010

1014

1026

1052

1522

1509-B[2]

1007

1011

1015

1028

1058

1665

         The following document and docket entry shall have a redacted copy of the sealed document added to the public docket: 1133

         The Court reserves on the question of juror questionnaires and will resolve the issue in conjunction with the defendant's contested Motion for Partial Unsealing of Non-Seated Prospective Jurors' Questionnaires (dkt. no. 1738).

         The parties' Joint Motion to Seal Attachments to Joint Motion to Unseal Specified Transcripts and Pleadings (dkt. no. 1739) is moot with respect to the attached proposed redactions that will be added to the public docket pursuant to this Order and is otherwise granted. The government's assented-to Motion to Amend the Parties' Joint Motion to Unseal Specified Transcripts and Pleadings (dkt. no. 1747) is granted for the reasons articulated by the government in the motion.

         The parties have also filed a Stipulation to Supplement the Record Pursuant to Rule 10(e)(2)(A) (dkt. no. 1744). It was filed by the parties as a motion, but it appears to be intended as a stipulation. See Fed. R. App. P. 10(e)(2)(A). Therefore, the Clerk shall rename the docket entry to correspond to the title of the submission prepared by the parties. However, the Court takes note that a number of documents identified by the parties and resubmitted as exhibits to the stipulation are already recorded on the district court docket. (See, e.g., Stipulation of the Parties to Supplement the Record Ex. B (available at dkt. nos. 295, 295-1 through 295-3, and dkt. nos. 295-4 through 295-8 (bound volume in Clerk's Office Records Room)); Ex. D (available at dkt. no. 1740);[3] Ex. I (available at dkt. no. 1555);[4] Ex. J (available at dkt. no. 1616); Ex. K (available at dkt. no. 1697); Ex. M (available at dkt. no. 1719).) Additionally, the parties represent that Exhibit H is the government's Motion to Strike Certain Mitigating Factors located at Docket Entry 1432, but Docket Entry 1432 is the government's Second Motion to Strike or Modify Certain Mitigating Factors with an exhibit attached. (The government's first motion is located at Docket Entry 1377.) The parties also represent that Exhibit L consists of Ex Parte Attachments to Government's Motion to Disclose located at Docket Entry 1716, but the Court notes there are some variations between Exhibit L and the filing of the same name located at Docket Entry 1716.

         The Court also notes that Exhibit G appears to be a copy of a (proposed) memorandum and a declaration by Neil Vidmar, which the Court has stricken from the record numerous times. (See, e.g.. Order dated Sept. 2, 2014 (dkt. no. 527); Op. & Order dated Jan. 2, 2015 at 11-12 (dkt. no. 887); Op. & Order dated Feb. 6, 2015 at 2 n.3 (dkt. no. 1021); see also Status Conf. Tr. dated Sept. 18, 2014 at 4 (dkt. no. 580)). Because they are not part of the record at Docket Entry 517, they could not have been "omitted from ... the record by error or accident" as Rule 10(e)(2)(A) requires. The Court therefore declines to add Exhibit G to the record of matters properly before district court.

         As part of their stipulation, the parties filed on the public record certain exhibits to the defendant's motion to suppress which are under seal and were not introduced at trial. Defense counsel electronically filed the material as Exhibit B to the stipulation on October 21, 2018 (dkt. no. 1744-1). Counsel simultaneously filed a motion to seal other exhibits to the parties' stipulation (dkt. no. 1745). Two days later, after the press had reported on the materials, see, e.g., Boston Marathon Bomber's Handwritten Hospital Notes Released, Associated Press, Oct. 22, 2018, https://www.apnews.com/8c6e49b9cd924e75a3e8f488286991e7, the parties moved to seal the "Exhibit B" submission, representing that counsel inadvertently filed the sealed material on the public docket (dkt. no. 1746). Such errors should be avoided in the future. The joint motions to seal (dkt. nos. 1745 and 1746) are granted.

         The technical process of executing this Order by the Clerk will proceed ...


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