United States v. Tsarnaev

96 F.4th 441

UNITED STATES of America, Appellee, v. Dzhokhar A. TSARNAEV, Defendant, Appellant.

No. 16-6001

United States Court of Appeals, First Circuit

March 21, 2024

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. George A. O'Toole, Jr., U.S. District Judge]

Daniel Habib, with whom Deirdre D. von Dornum, David Patton, Mia Eisner-Grynberg, Anthony O'Rourke, Federal Defenders of New York, Inc., Ginger D. Anders, Munger, Tolles & Olson LLP, Clifford Gardner, Gail K. Johnson, and Johnson & Klein, PLLC, were on brief, for appellant.

John Remington Graham on brief for James Fetzer, Ph.D., Mary Maxwell, Ph. D., LL.B., and Cesar Baruja, M.D., amici curiae.

Timothy P. O'Toole, Miller & Chevalier, George H. Kendall, and Squire Patton Boggs (US) LLP on brief for Eight Distinguished Local Citizens, amici curiae.

Michael J. Iacopino, Brennan Lenehan Iacopino & Hickey, David A. Ruhnke, Ruhnke & Barrett, Megan Wall-Wolff, and Benjamin Silverman on brief for National Association of Criminal Defense Lawyers, amicus curiae.

William A. Glaser, Attorney, Appellate Section, Criminal Division, U.S. Department of Justice, with whom Andrew E. Lelling, United States Attorney, Nadine Pellegrini, Assistant United States Attorney, John C. Demers, Assistant Attorney General, National Security Division, Joseph F. Palmer, Attorney, National Security Division, Brian A. Benczkowski, Assistant Attorney General, and Matthew S. Miner, Deputy Assistant Attorney General, were on brief, for appellee.

Before Kayatta, Howard, and Thompson, Circuit Judges.

KAYATTA, Circuit Judge.

In 2013, Dzhokhar Tsarnaev and his brother detonated two homemade bombs near the finish line of the Boston Marathon, killing three people and injuring hundreds more. In the ensuing aftermath, the brothers killed a local campus police officer, hijacked a car, and engaged in a shootout with police that injured an officer and resulted in the death of Tsarnaev's brother. In 2015, a jury sitting in federal district court in Boston convicted Tsarnaev of thirty crimes stemming from the bombings and recommended a death sentence on several of the death-eligible counts. It did so in two different phases: a guilt phase, in which the jury concluded that Tsarnaev was guilty; and a penalty phase, in which the jury concluded that his sentence should be death. The district court imposed the death sentence, along with multiple life sentences on the remaining counts. Tsarnaev appealed to this court, raising sixteen different claims of error in the district court's treatment of his case.

We first considered Tsarnaev's post-verdict appeal in an opinion we issued in 2020. United States v. Tsarnaev, 968 F.3d 24 (1st Cir. 2020), rev'd, 595 U.S. 302, 142 S.Ct. 1024, 212 L.Ed.2d 140 (2022). In that opinion, we held that the district court committed three errors: one requiring reversal of three of Tsarnaev's thirty convictions, and two requiring vacatur of Tsarnaev's death sentence and remand for a new penalty-phase proceeding. Id. at 35, 62, 75. We emphasized, though, that Tsarnaev "will remain confined to prison for the rest of his life, with the only question remaining being whether the government will end his life by executing him." Id. at 35.

Because we concluded that a new penalty-phase proceeding was necessary in light of two of Tsarnaev's arguments, there were several arguments that we did not need to conclusively address in our prior opinion.¹ It is common practice in our court -- as it is generally in courts of appeals -- not to resolve issues that need not be resolved if other issues are dispositive. In the words of then-Judge (now Chief Justice) Roberts, "if it is not necessary to decide more, it is necessary not to decide more." PDK Lab'ys Inc. v. U.S. Drug Enf't Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment).

The Supreme Court, however, reversed our vacatur of Tsarnaev's death sentence on both grounds. United States v. Tsarnaev, 595 U.S. 302, 324, 142 S.Ct. 1024, 212 L.Ed.2d 140 (2022). The Court's opinion was limited to the two issues that we had held required vacatur of Tsarnaev's death sentence. So with respect to the other issues we decided, our prior opinion stands. That leaves for our present review only the remaining arguments that were not resolved in either our prior opinion or the Supreme Court's opinion.

The parties agree that there are four such remaining issues: first, Tsarnaev's claim that he should have been tried somewhere other than Boston; second, his claim that the district court failed to properly address his specific allegations of juror bias with respect to two jurors; third, his claim that the district court erroneously dismissed another prospective juror for his views on the death penalty; and fourth, his claim that the district court erred in its treatment of certain evidence regarding Tsarnaev's post-bombings trip to a Whole Foods store. We address each of these issues in turn. In so doing, we recite only those facts relevant to our resolution of these issues. Our prior opinion contains a more detailed account of the underlying facts.

Ultimately, three of Tsarnaev's four remaining arguments fail. For reasons we will explain, though, his second argument requires further factfinding by the district court. When Tsarnaev presented the district court with plausible claims of juror bias, the court was obliged to investigate those claims. And we conclude that the district court's investigation fell short of what was constitutionally required. This conclusion on its own does not require vacatur of Tsarnaev's death sentence and a new penalty-phase proceeding. Rather, we remand this case to the district court to determine whether either juror should have been stricken for cause on account of bias. If and only if the district court's investigation reveals that either juror should have been stricken for cause on account of bias, Tsarnaev will be entitled to a new penalty-phase proceeding. And even then, we once again emphasize that the only question in any such proceeding will be whether Tsarnaev will face execution; regardless of the outcome, he will spend the rest of his life in prison.

Our analysis of each of the remaining four issues follows.

I.

The first remaining issue is Tsarnaev's claim that the district court should not have allowed his trial to proceed in the Eastern Division of the District of Massachusetts (located in Boston). He argues that the community's exposure to the marathon bombings and pre-trial publicity violated his constitutional right to an impartial jury, required a venue change under Federal Rule of Criminal Procedure 21(a),² and undercut the reliability of the jury's death verdict. We review the district court's denial of Tsarnaev's venue-change motion for abuse of discretion. United States v. Casellas-Toro, 807 F.3d 380, 385 (1st Cir. 2015).

Although we declined to conclusively decide this issue in our prior opinion, two of us stated that we would likely find no abuse of discretion. Tsarnaev, 968 F.3d at 56. We explained that polling data showed that there were several million people in the venue open to a life sentence even after all the publicity. Id. at 54. That same data also showed that public awareness of the case and attitudes concerning it in, for example, Western Massachusetts, or even New York City, were not materially different than they were in Boston. Id. at 55. In addition, the information contained in the bulk of the pretrial publicity was true and admissible (and uncontested) at trial. Id. And that true information painted a picture of conduct that was horrific enough to render any untrue information in the publicity like a match added to a forest fire.

Id. Precedent, too, leaned against any finding that venue in Boston was precluded as a matter of law. Id. at 55-56. And Tsarnaev's contention that Boston jurors would view the bombings as an attack on Boston qua Boston overlooked the fact that, as he himself wrote, his intended victim was America; i.e., jurors in any venue in the United States could view the bombings as an attack on their polity. Id. at 56.

Shifting focus from the general public to the venire pool, Tsarnaev points out that virtually all prospective jurors admitted exposure to some amount of publicity regarding the case, and approximately two-thirds of the venire -- including some seated jurors -- had formed a belief that Tsarnaev was guilty. But "[p]rominence does not necessarily produce prejudice, and juror impartiality ... does not require ignorance." Skilling v. United States, 561 U.S. 358, 381, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010). As the Supreme Court said in this very case, "[n]otorious crimes are 'almost, as a matter of necessity, brought to the attention' of those informed citizens who are 'best fitted' for jury duty." Tsarnaev, 595 U.S. at 312, 142 S.Ct. 1024 (quoting Reynolds v. United States, 98 U.S. 145, 155-56, 25 L.Ed. 244 (1878)). Nor was the jury partial merely because some jurors had "formed some impression or opinion as to the merits of the case." Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). "It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." Id. at 723, 81 S.Ct. 1639. Here, the seated jurors who had preconceived notions of Tsarnaev's guilt stated that they would be able to do just that. And, with the potential exception of two jurors (discussed in the next section), Tsarnaev gives us no reason to doubt the veracity of the jurors' assurances that they could be impartial.³ Moreover, Tsarnaev's argument that he was prejudiced by the jurors' preconceived notions of guilt is undermined by his admission of guilt at trial. As we noted previously, Tsarnaev "does not say he would have raised an innocence defense in another venue." Tsarnaev, 968 F.3d at 55.

Tsarnaev's similar argument that...