12.Whole Foods Video, Possible Fruits of Hospital Statements, Medical-Evidence Proffer, and Personal-Information Redactions
32 linesMS. CONRAD: There is one final issue, your Honor. The other day when the government put in the Whole Foods video, it hadn't occurred to me that -- until I think it was Agent Fitzgerald was asked, you know, "Did you receive information that the defendant Tsarnaev had gone to Whole Foods" and he said "yes," that was something that was Mr. Tsarnaev's hospital statement, that he'd gone to Whole Foods.
The government said it would not put the statements in during its case-in-chief. I haven't had a chance to go back and look at this again, my memory's a little dim in terms of what the law is on fruits, but the issue of voluntariness of those statements was never resolved.
Now, Mr. Chakravarty in response to an inquiry I had today told me that the source of the information for the -- that they had gone to the Whole Foods was not Mr. Tsarnaev, even though the timing -- the chronology lines up that way, but some independent tip which I'm not aware of. We probably have it on our database of tips but hasn't been pointed out to me.
My point is simply this: Because the issue of voluntariness has not been resolved, the issue of fruits remains potentially a live one unless the government can show inevitable discovery, independent source and the like. We don't necessarily know as evidence is coming in what the source of that evidence is. We had assumed, based on the fact that the search warrants were issued before the hospital statements -- or the bulk of the search warrants were issued on April 19th before the hospital statements were taken, that they were not fruits. But this Whole Foods business gives us pause.
And I asked Mr. Chakravarty, and I want to put on the record, that to the extent the government is offering evidence that was derived from information provided by Mr. Tsarnaev, the issue of voluntariness may be joined and should be, we think, addressed before that evidence is intro- -- admitted. The only point of this is to simply ask that some notice be provided so to give us an opportunity to raise the issue before the cow is out of the barn -- horse is out of the barn, whatever the expression is.
THE COURT: Chickens, maybe.
(Laughter.)
MS. CONRAD: You notice I looked at Mr. Bruck to see if I got that right. I'm not so big on farm analogies.
MR. BRUCK: I'm apparently the font of farm wisdom.
MR. CHAKRAVARTY: So first, in preparation with Mr. Fitzgerald when he told me about this tip, he made it clear that it was somebody else entirely. My understanding is he doesn't even know about what was said in the hospital statement. And his communications with the investigator is -- when it happened was based on what this other evidence, or this tipster, what information that person had.
THE COURT: As long as that person didn't have it from the statement.
MR. CHAKRAVARTY: And that person -- he named a civilian witness who was not involved in the investigation, so in this case it's a nonissue entirely. But it raises the broader issue of the defense raising post fact, either now or on appeal, by mining the defendant's hospital statement and trying to find anything that overlaps with evidence that the government has presented as somehow creating some obligation for the government to identify pre-presentation of evidence of something that -- for which they could preserve better. That's not our job, that's theirs, and they should do that at or near the time of the admission of evidence.
MS. CONRAD: But we don't know what the source is especially on the -- I did not -- I was taken aback. I hadn't really thought about how -- how the FBI got to the Whole Foods video in the first place until he said, "I got information." When you say "from a civilian witness," you know, it sounded to me more like he got information from another FBI agent who could have gotten it either from a civilian witness or from the defendant. And we can't just sit there and look at every piece of evidence and try to guess. And if we did that, if we followed Mr. Chakravarty's preferred procedure, that means before any piece of evidence conceivably is introduced, we have to stand up, go to sidebar and object because it might be a fruit of the defendant's statement. And I don't think unless it was obtained before the defendant's statement was made, I don't think that that's a very efficient or sensible solution.
MR. CHAKRAVARTY: Well, here it wasn't even being offered for the truth; it was just being offered to say why he did this analysis.
THE COURT: I think you just have to be -- in light of this, particularly sensitive to the source of that kind of information, that it does not trace back to those statements.
MR. CHAKRAVARTY: We have been diligent throughout. But as Ms. Conrad suggests, for example, that search warrants were all done on the 19th, before those statements were made, that's actually not true. There were dozens of search warrants, many of which went into May and beyond, and we have evidence derived from those, in none of those search warrants did we ever put information that was derived from those -- the hospital statements. But this is my point, that some of the subsequent law enforcement actions that were not derived or dependent upon those statements still might be prone to this kind of opportunistic attack.
MS. CONRAD: That was not my point. My point was that we looked at the search warrants and confirmed that they were not based on the statement. I am excluding the search warrants because those documents -- the bases and the sources for the information. I was not saying we need to go back to the search warrants. So I'm sorry that it --
THE COURT: This sounds like it may be a hypothetical problem.
MS. CONRAD: It would be helpful if the government could provide some documentation of the tip that was -- even redacted that was underlying the Whole Foods.
THE COURT: I don't think that's necessary under the present circumstances.
Let me go over two other matters. With respect to the 12.2(b) issue, I would like as part of a determination whether good cause exists to permit a late filing a rather detailed ex parte proffer of the probative value of the medical evidence so I can assess whether this is something strong or weak, I guess is the best way to put it. That may affect my decision on whether to allow a late filing. So sooner rather than later, but I don't know how unreasonable any possible time period would be.
How -- early next week?
MS. CLARKE: Sure.
THE COURT: What's early next week?
MS. CLARKE: Well, we'll just do it -- we've been pretty good on meeting your deadlines, contrary to what we are constantly accused of, but we'll shoot for Monday or Tuesday if we can. Is that all right?
THE COURT: Yes. By Tuesday at the latest, and then we can move on that and decide.
Trivial -- well, not trivial, but minor, I guess, rather than trivial. The lease that was just put into evidence, I think should be redacted. It has some personal information, it occurs to me.
MR. CHAKRAVARTY: Thank you. We'll do that.
MS. CONRAD: I also thought the bank account number.
THE COURT: Yeah, and the bank account number. He probably doesn't have that bank account anymore.
MS. CLARKE: Or perhaps not made public.
THE COURT: But in any event, you should review his info. Some of that was pretty identifying.
MS. CONRAD: I wasn't sure if that was his residential address or his work address.
THE COURT: It looked like a residential address.
MS. CONRAD: It did, but then it said Kendall Square, and maybe he lives near his workplace.
THE COURT: Anyway. Okay?
MR. WEINREB: All right.
THE COURT: Thank you.
(The proceedings adjourned at 3:50 p.m.)