8.Foreign Deposition Request for Magomed Kartashov
10 linesTHE COURT: I don't think so.
Now, let's talk about foreign witnesses. Let's start with the deposition issue, defendant's motion for foreign deposition.
MR. FICK: Yes, your Honor. So this is the request that -- to authorize the deposition and to order the government to take steps to make the witness available, among them Magomed Kartashov, who is a maternal cousin, probably is the best source of evidence about Tamerlan Tsarnaev's radicalization, his state of mind and what he was interested in and obsessed with at the time that he traveled to Russia in 2012.
Mr. Kartashov is not available to come to testify here because he's in jail in Russia. The government, however, procured his presence for an interview with the FBI on a prior occasion by a request of the Russian government. So in that sense, the government has the ability to at least solicit his presence. And we'd request that they do that again for purposes of a deposition, or at this point given the time, alternatively, if arrangements for a video connection were possible, of course that would be an alternative means of procuring his testimony.
The essential argument the government makes in response is, Well, the Court can't order the government to exercise the government's prerogatives under our Mutual Legal Assistance Treaty. First, it's not entirely clear the Mutual Legal Assistance Treaty effected the means by which way they procured his presence for the FBI in the first instance, and really, the cases that -- we have reached this conclusion previously simply to say that the Legal Assistance Treaty itself does not create a right for other parties to act, but that sort of conflates the means with the right. The defendant is arguing here that the right in here is in the Sixth Amendment to the Constitution, and the Legal Assistance Treaty is simply means by which the government not only can but has procured access to the witness.
The most relevant First Circuit case which I think actually, given the way the timing of this unfolded, was cited in connection with a different motion, not this one, but the case is Filippi, 918 F.2d. 244. That case held that the failure of the government to assist in obtaining parole for foreign witnesses through executive means was a Sixth Amendment violation, and I think by analogy that tells the Court that there is a basis to say to the extent the government has de facto access to a witness, it should be required at least to make efforts to exercise that ability of access. And so that essentially is the basis of the motion.
Now, the government also in its response says, Well, there's other evidence of Tamerlan Tsarnaev's radicalization. There are, for example, voice recordings of Mr. Tsarnaev on his computer, et cetera. That of course is wonderful. If the government is willing to stipulate that Tamerlan Tsarnaev's voice is, in fact, Tamerlan Tsarnaev's voice, that would be helpful. But again, the government has made this argument over and over again, the parties ought to be able to put their best evidence in, and the best evidence of Tamerlan Tsarnaev's radicalization is testimony that Magomed Kartashov could provide.
THE COURT: Do you have any current information about it?
MR. FICK: As far as we know, he is still serving his sentence in the -- sort of a prison colony. It's not really a facility; it's more like a little town where prisoners live with their families in Voronezhskaya Oblast, which is in the European part of Russia, you know, a couple of hours south of Moscow.
My understanding is that when he was interviewed by the government previously, he was -- I know, I can spell that for the court reporter.
(Laughter.)
MR. FICK: But my understanding is when the government interviewed him previously, he was brought out of that -- out of wherever he was detained to an office setting where that meeting took place.
THE COURT: And so what specifically would you suggest if it's not the MLAT Treaty that the government might do?
MR. FICK: Well, I'm not privy to what mechanisms, either formal or informal, that the government may have to solicit cooperation from Russia in a law enforcement effort. You know, if there's something other than the MLAT Treaty, something less formal that they used before, presumably they can use it again.
And I'd also note, going back to the agreement that I cited, you know, the case law about the MLAT Treaty simply says there's no right of action for the third party under the MLAT Treaty, but again, they're saying the right of action is the Constitution. The MLAT Treaty is the mechanism the government has in its hands much like the parole process to bring witnesses in. That was at issue in Filippi.
MR. CHAKRAVARTY: Your Honor, I inquired with the FBI as to what other options there might be aside from an MLAT, and they inquired with the foreign government, and they said that -- and this is months ago now -- that there will be no cooperation with any request, whether it be from the FBI or from the U.S. government at large, without a request from -- through the Mutual Legal Assistance Treaty. So whatever vehicle was used back in the summer of 2013 is not even a possibility even if we wanted it to be a possibility which -- but that's jumping ahead a little bit.
Because in assessing this request for a deposition, or even Mr. Kartashov as a witness, we first have to address the threshold issue of what is the relevance of the witness. And at best, unless, you know, there's information that the defense has that we don't and that we haven't provided to them, he offers testimony about Tamerlan Tsarnaev before the conspiracy charged in the case had even begun, what Tamerlan Tsarnaev did in 2012 before the plot that was -- that resulted in the bombing of the marathon.
And it's an important distinction because everything that flows from the defense request, talking about how critical of a witness he is, suggests that to the extent that he has any value in a mitigation case, it would come to not talking about the defendant's individualized liability, or even his relative culpability versus his brother's, but rather, simply character evidence or the evolution of Tamerlan Tsarnaev's own thoughts.
So that prevents fundamentally them from being able to meet the extraordinary threshold of -- required by Rule 17 saved for extraordinary cases, especially when witnesses reside in a foreign country where the penalties of perjury and the other accoutrements surrounding reliability of testimony aren't going to be in place, that they have a burden to meet.
And I suggest that they haven't met that burden. They haven't proffered a 401 reason or the analog in it for -- in a death penalty sentencing phase as to why his testimony is necessary. Having not met that burden, they then can't further justify this extraordinary step.
The case law is clear that even though this -- this unique circumstance has not been squarely addressed by the First Circuit or by the Supreme Court, those cases that have reviewed the ability for individuals to access the right of an MLAT have routinely been denied that access, and that's for good reason. The MLAT is designed for state-to-state interactions and cannot be co-opted by the interest of a few even when weighed against the Fifth and Sixth Amendment rights that a criminal defendant is afforded.
The defense also appears, I should add, in their papers -- and based on Mr. Fick's knowledge of the situation -- has more and closer access to being able to even talk to Mr. Kartashov than the government does. If he is in a facility run by the federal government in Russia, then not only can we -- are we unable to even ascertain that definitively from the government, but we certainly don't have access to communicate with him.
He hasn't indicated that he would be willing to go through this procedure, and what we're talking about is essentially a detour from focusing on the case, a pragmatic problem of both expense as well as having to go over to Russia to try to attempt to knock on a door and say, Hey, we want to talk to one of your prisoners for a little while, and then hopefully getting some kind of reliable testimony that this jury is going to be able to assess within the context of everything else in the mitigation case, your Honor.
It's just -- not only have they not met the legal threshold, it just doesn't make sense pragmatically. And so the government would ask that the motion be denied.
MR. FICK: Very briefly, your Honor, I'm frankly sort of dumbfounded to hear the government try to suggest Mr. Kartashov would not be relevant not only for the mitigation case, but given the way the government has described the way it's going to frame the motive in the guilt phase of the case, frankly, the testimony could be relevant there. The government essentially has said -- indicated to us that it's going to argue that Jahar Tsarnaev was self-radicalized, whatever that means.
Our answer to that, our belief and the truth of the matter is that, no, that is not the case, that Tamerlan Tsarnaev radicalized his brother and his path to radicalization started much earlier and was much more intense including a trip to the Caucasus for the specific purpose of joining the insurgence. Magomed Kartashov is the living person who can provide the best and strongest corroboration of that evidence, and so for that reason we think his testimony is critically important.