3.Stephen Silva — Gun Context, Relationship Evidence, and Witness Restraints
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Let's -- so let's come back to the issues about Stephen Silva. We had a brief discussion about it the other day. I don't think this is 404(b) because it's not offered for 404(b) purposes. So I think it's part of the government's narrative, and the government, I think, is entitled to show why it is plausible that Silva did what he will testify he did; that is, provide a gun. That has to be put in context. And I think the plausibility for the government is increased if the actual context is shown. So I think the discussion about what the purpose was is admissible: The intent to use in the drug business.
I don't think it's necessary to have evidence of the robbery of the Rhode Island kids. I think that's perhaps cumulative. That's less on point. But I think that the interaction between Silva and the defendant and explaining why Silva -- why he knew Silva, I guess, and knew that Silva might have access to this weapon and then went to him to get it and so on and so forth, I think that's all part of the narrative that the government is entitled to.
The government has --
MS. CONRAD: May I have a continuing objection to that, your Honor, or do you want me to make it on the record?
THE COURT: I think it's clear but if you want to make it again.
MS. CONRAD: It may be clear to you but I want to make sure it's clear for the First Circuit.
THE COURT: I don't think they're that sticky. They're stickier on instructions to objections.
The government also has a motion about Silva which is testimony about the relationship between the brothers. My interpretation of the motion is it's kind of a personal knowledge objection. Anything he would know would be secondhand.
MS. CONRAD: Well, you know, first of all, I haven't heard the direct yet so I can't tell you what the cross is going to be. But I think some of it, you know, it depends on what the direct is.
THE COURT: Right.
MS. CONRAD: And I think some of it also -- I mean, certainly not for the truth of the matter but state of mind as to certain things that are going to come up. But I think it's better to deal with it question by question because I don't think --
THE COURT: Right. We'll evaluate it as the occasion arises. In general there will have to be a personal knowledge basis for it. That's one thing. There will also have to be relevance. So it will have to be the right kind of evidence about the relationship. It can't be mitigation evidence, frankly. So there's two hurdles to it.
MS. CONRAD: I understand.
MR. CHAKRAVARTY: So being wary not to open the door to any of that, one of my intended questions was to establish that he had never met and never had contact with Tamerlan. I want to be able to safely do that without risking that she then says -- she meaning the defense -- the illustrious defense counsel.
MS. CLARKE: You mean Ms. Conrad.
MS. CONRAD: I'm looking around. Who is he talking about?
MR. CHAKRAVARTY: -- would, you know, perceive that as opening the door somehow.
THE COURT: That wouldn't open the door necessarily.
MR. CHAKRAVARTY: One other question on Mr. Silva.
MS. CONRAD: It depends on what the question would be on cross.
MR. CHAKRAVARTY: Mr. Silva is in prison garb and the marshals have indicated that they would prefer to have his leg shackles on. Mr. Silva is represented and he would prefer --
THE COURT: Who is his counsel?
MR. CHAKRAVARTY: Jonathan Shapiro.
THE COURT: Do you expect him to be here?
MR. CHAKRAVARTY: He is here.
THE COURT: Yeah.
MR. CHAKRAVARTY: And --
THE COURT: Does he have anything to say about it?
MR. CHAKRAVARTY: He would prefer that he not be shackled, or rather, that the jury not see him shackled. So the issue is if he is put in the box outside of the presence of the jury -- we take a break -- but given that hopefully it will be half an hour into the trial, that might be inconvenient. The marshals did also say there will be two extra marshals there just to establish security for this prisoner.
THE COURT: Do you have any viewpoint?
MS. CONRAD: Not off the top of my head.
THE COURT: Do you have any viewpoint independent of the marshals?
MR. CHAKRAVARTY: I think that in my lay assessment, but in my experience as a prosecutor, he does not present a risk of flight or harm, and having the shackles removed would facilitate him getting to the stand without controversy.
THE COURT: I think with all the marshals in the room we don't need them, but I haven't heard from the marshals. But that would be my inclination. There's plenty of marshals present.
COURT CLERK: Judge, there was one question with respect to bringing up Mr. Silva. I mean, it sounded like, speaking with Rob, I don't know if he's going to be in the back while the trial is going on or if they need to go down and bring him up and take any kind of a break.
THE COURT: How soon do you need him?
COURT CLERK: They mentioned that.
MR. CHAKRAVARTY: We expect Mr. Henneberry to go about a half an hour at the most.
THE COURT: So they could time it, right?
MR. WEINREB: Yeah, say 20 minutes.
THE COURT: Is there cross of Henneberry if they're a half-hour?
MR. WATKINS: Nothing.
MS. CLARKE: Very short.
THE COURT: Yeah, so have him up --
COURT CLERK: Ten o'clock?
THE COURT: -- about half an hour from when we get going.
MR. WEINREB: I would say, to be safe, I think -- I'll do Henneberry quite quickly, I think, 20 minutes.
MS. CLARKE: Do they have an issue with where they're housing --
COURT CLERK: I think it's just a matter of making sure they're kept separate and, you know, they're bringing him up and having him in the cell --
MS. CLARKE: Our guy stays up.
COURT CLERK: I understand. I'm telling you what Rob's concern was in terms of they may need to have a couple of minutes to --
THE COURT: They may need to switch them in an intermission.
MS. CLARKE: Right. Just leave Dzhokhar with us in the courtroom.
THE COURT: Right. Okay. I think we should get going. I do have one ex parte matter with the defense.
(The lobby conference concluded at 9:25 a.m.)
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P R O C E E D I N G S
COURT CLERK: All rise for the Court and the jury.
(The Court and jury enter the courtroom at 9:35 a.m.)
COURT CLERK: Be seated.
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: Happy St. Patrick's Day.
JUROR: Same to you.
THE COURT: Thank you for your patience. The lawyers and I had some things we had to confer about. We're ready to proceed with the evidence.
MR. WEINREB: Good morning, your Honor. The United States calls David Henneberry.