7.Mistrial Denial, Instruction Objections, and Indictment Redactions

MS. CONRAD: Okay. Before I begin with the instructions, may I address the government's closing and rebuttal? First of all, I would like -- a portion of the government's presentation, that was sort of the photo montage with the nasheed playing in the background, to be made part of the record in this case. And I'm moving for a mistrial based on that. The apparent purpose of that, I can't imagine any other purpose, is essentially to try and inflame religious or ethnic prejudice. There was no relevance to any of the charges here.

As we argued in Docket No. 279, in which we successfully sought to strike betrayal of the United States as an nonstatutory aggravating factor, 18 U.S.C. Section 3593(f) prohibits and requires a jury to form that any penalty, essentially, is not based on race, religion or national origin.

In this case, the government played this haunting music over a photograph of the Shahada, the black flag with Arabic writing, which the government's own expert testified was not jihadi but was a sign of Islamic faith. It's an Islamic motto. They followed that with a picture of the defendant, a selfie, presumably, with one finger up, which is the Muslim finger for one god, which is an expression of religious belief. And then on top of that, they immediately followed that with scenes of the devastation of the marathon bombing. It was clearly an effort to portray the defendant as an alien and to deem him as -- not just him, but his religion. And I move for a mistrial based on that.

In addition, during Mr. Weinreb's reply, he said at one point that the defendant is not trying to take responsibility, suggesting that the defendant should have gotten up and himself taken responsibility, which is both counter to the presumption of innocence and the government proof, as well as to the defendant's right not to testify. And it's an improper comment on the defendant's right not to testify, as was a number of comments Mr. Weinreb made in his rebuttal, including, for example, "We don't know whose idea it was to search for these terms."

As the First Circuit has made perfectly clear, whenever a prosecutor says we don't know something, where the only person who could address that issue is the defendant, it is considered burden-shifting and an improper comment on the defendant's right not to testify.

Mr. Weinreb also stated that there were emptied-out fireworks found in Mr. Tsarnaev's dorm room. There was no evidence of that. The government chose not to call Azamat to testify to that, and that would be entirely improper.

So for all of those reasons we move for a mistrial, and if the Court denies that, we would ask that the video montage be made part of the record.

MS. CONRAD: Right? I know.

With respect to conspiracy, we object to not including willfulness as the requirement of the mens rea required to join the conspiracy as set forth in the First Circuit pattern jury instructions which we provided to the Court.

We also object to the omission of the language from the First Circuit pattern jury instructions which we also submitted, that the government must prove beyond a reasonable doubt that the defendant knew the essential features and general aims of the conspiracy.

We also object to the omission of language from the pattern jury instructions that proof must be based on the defendant's -- proof that the defendant willfully joined the conspiracy must be based on the defendant's own words and actions.

With respect to the portion regarding the use of carrying of firearms offenses, we object in relation to the weapons of mass destruction. We object, as we raised in our Rule 29 motion, to the notion that these were two different offenses when, in fact, we believe they encompassed the same offense.

With respect to aiding and abetting -- well, actually, throughout the instructions the Court, as the government did in its proposed instructions, in recounting what the charges were also charges the defendant conspired with another person. It also charges the defendant aided and abetted another person. The other person was Tamerlan Tsarnaev. And in recounting what is charged in the indictment, we believe that it should specify Tamerlan Tsarnaev. The government did not -- or the indictment did not say "and other persons known and unknown"; they specified Tamerlan Tsarnaev, and that's what they have to prove.

With respect to "during and in relation to" as relates to use and carrying a firearm, we object to the omission of the First Circuit's language; in particular, the language that it must have -- the firearm must have placed a role in the crime or been intended by the defendant to play a role in the crime.

The Court's instruction took the defendant -- defendant's intent out of that and simply said that it must have facilitated or have the potential to facilitate the crime, eliminating the requirement of the defendant's intention that it play a role.

We also object to the instruction generally regarding advanced knowledge, but also in particular, to the language that said that advanced knowledge can be inferred from the fact that the person continued participation after learning about the other person's possession. And I would note in particular that it's confusing and inarguably diluting the government's burden to say in the other person's possession when, in fact, the view here was use and carry.

So now it seems that it is sufficient for the government to prove that another person possessed or -- rather than used and carried. And then leaving out, of course, the "in furtherance of" element that would be required if the government was relying on a possession theory.

Also, we would object to -- the instruction that the jury may find advanced knowledge if the defendant continued his participation is burden-shifting.

Regarding Count 7 and 9, a bomb in public places count, we submit that the -- as we did on March 29, that the government must still prove or disprove the exemption; in other words, they must prove that a victim is a national of another state. Even if they proved the jurisdictional element of trying to compel the United States to act differently, the exemption is not confined to one particular jurisdictional theory.

With respect to Count 19, which is the carjacking count, we object to eliminating the word "knowingly" from the First Circuit pattern jury instructions which are that the first element is the defendant knowingly took the car as opposed to just took the car, which is what the Court said.

With respect to "resulted in" in terms of bodily injury, the Court did not define the causal relationship, and we would ask the Court to instruct, as we did in our papers, that it must be a but-for cause as specified by the Supreme Court in Burrage. We also object to saying that any injury that was sustained while the defendant retained the car should be "while retained control over the car and victim of the carjacking." And I would note in particular that none of the cases the government has cited, none of the cases that I have found specify that the injury resulting can be to someone other than the victim of the carjacking. There are cases that address this in the context of sentencing guidelines. The government called one of those dicta. But, in fact, it's just a completely different standard because it focuses on relevant conduct as opposed to the direct and proximate result of the offense itself.

We object to the inclusion of the instruction about the lawfulness of the search, and particularly, the instruction that essentially suggests to the jury that the Court has already passed on the propriety of the search. This is unnecessary. It was not raised by the evidence nor was it requested by the government.

And finally, just because -- oh, no. I would -- sorry. I'm almost there.

With respect to the instruction regarding the graphic nature of the photos, I just want to state for the record that in light of our motion in limine, we do not believe that that instruction is sufficient to cure the prejudice created.

And if I could just have one moment to confer with co-counsel.