1.Conference on Jury Questions About Conspiracy and Aiding and Abetting
39 linesP R O C E E D I N G S
THE COURT: Okay. So I gave you my proposed answers.
MR. WEINREB: So the government has no quarrel with the Court's answers as far as they go, but we request that they go further. Actually, with respect to the first question, we'd be content just with the first sentence. And I don't know that it's actually necessary to repeat all the rest. We had a slightly different formulation of it we were going to propose, but it more or less means the same thing.
THE COURT: The next several paragraphs I've just taken directly from the previous instruction. I just thought it would be useful to give them the whole -- actually, it's still not the whole, but they have the text of the original instructions anyway, but I just thought it might be easier to just repeat the two elements.
MR. WEINREB: I mean, I think it's true that the instructions sometimes say "aid or abet" or "aid and abet" and I think they may be over-thinking it --
THE COURT: They are over-thinking it.
MR. WEINREB: But to simply reassure them that it's a single concept, the two words.
THE COURT: All right. Is that it on that?
MR. WEINREB: Yes.
THE COURT: So let's deal with that.
MS. CONRAD: Basically we agree. I was going to propose to say, "The words aid and abet" -- "You shouldn't focus on the definition of 'aid and abet' or 'aid or abet' but on the elements of the offense, as I've instructed you," so I'm fine with that. We actually agree.
MR. WEINREB: We have a proposed answer.
THE COURT: Okay.
MR. WEINREB: As for the answer to the second question, however, we believe that the -- what is prompting that question is confusion about the following: The theory of the government's case and the theory of the indictment is that the conspiracies to -- the three conspiracies, which are bombing conspiracies, lasted until the last of the bombs were thrown in Watertown on April 19th, but the only place in the indictment in which that theory is spelled out is in the overt act section.
That section was not given to the jury. And at the time that the Court proposed not giving it to the jury, that seemed a somewhat harmless omission to us, but it now appears to us that it has confused them. In particular, if you look at question -- this is a two-part question, and they seem -- what seems to be concerning them is whether the death of Officer Collier can be said to have resulted from the conspiracy, the bombing conspiracy, and I believe that may be because they're confused about whether the conspiracy charges allegations in the indictment pertain only to the bombings that occurred at the Boston Marathon as opposed to all the bombings in the case. We believe had they had the overt acts it would have been clear that the government's allegation spanned the entire length of the bombing campaign that began on April 15th and concluded on April 19th.
And so we have proposed this formulation: Either -- we would propose either that they be given the overt acts, or if it's less confusing, that they simply be informed that the government alleges that the conspiracies lasted from the dates that are alleged in the indictment that there were overt acts committed in furtherance of it throughout its length, and that one of those overt acts that is alleged to have occurred in furtherance in the indictment was the death of Officer Collier, or the killing of Officer Collier.
MS. CONRAD: May I? First of all, I wrote something out too, although largely what the Court came up with is pretty close to what -- and I would say actually better -- and I'm not just saying that -- than what I came up with.
But first of all, in response to Mr. Weinreb's point, I mean, we agreed the overt acts weren't going to the jury, didn't go to the jury. The conspiracy the indictment alleges from at least February 2013 up to and including on or about April 19th. So the timeframe is alleged in the indictment and there is no reason to send in the overt acts which are not required that the government prove, many of which weren't the subject of evidence at the trial, much less to focus and highlight the allegation about Officer Collier.
The one thing I would say about what the Court has proposed is that it should be, I would submit, that what they must find in order to convict is the conspiracy charged in the indictment. So it's not enough for them to determine the scope of the conspiracy and the duration of the conspiracy. Because I think what you have here actually is -- and I have a copy of the United States versus Morrow and then a couple of other First Circuit cases that I think are very applicable on the issue of multiple-versus-single conspiracies.
Because I think on the evidence here the jury could find -- and I think they should be instructed on that. I think they could find on the evidence here either arguably the government's theory that there was one single conspiracy, maybe with respect to use of a weapon of mass destruction, not so much as to bombing of a public place.
And one of the other things I was going to ask the Court to instruct is that the conspiracy ends when its objective is accomplished. So the government's evidence here, as argued in the closing, was that after the Boston Marathon bombing, Mr. Tsarnaev returned to his daily life and went about his business, suggesting that the conspiracy had ended -- had accomplished its purpose. And that after the pictures were on TV, then they came up with this plan to build more bombs, to murder Officer Collier and so forth. Those are two separate conspiracies.
I understand one could say that the evidence is capable of leading to either of those two conclusions, but if it leads to the latter conclusion that there were two or more separate conspiracies, then the government has not proved beyond a reasonable doubt the charges in the indictment.
And I have a couple of cases with me, they're cited in there, First Circuit cases having to do with, for example, a conspiracy to rob where the evidence showed only that the defendant conspired to commit one robbery but the indictment charged conspiracy to commit a string of robberies. So the other thing, in addition to -- that it ends when the purpose is accomplished, I think I put in there that -- I put something in there I think about multiple conspiracies.
The other thing I would say is that the death must be in terms of "death resulting," that it must be within the scope of the conspiracy. I realize I didn't object to this in the Court's original instructions, but the Court's instruction on death resulting from a conspiracy was that the death would not have occurred but for the crime, which is the language from Burrage when you're talking about a substantive offense.
But I think it's different when you're talking about a conspiracy because you cannot be held liable for a death that resulted sort of from the actions of a coconspirator if it was not in furtherance of the original conspiracy. But the Court did instruct them with respect to Pinkerton.
I'm not trying to overly complicate this but I think the single multiple conspiracy point is an important one and I think the conspiracy charged is an important one because as much -- and I totally agree with the way the Court has laid this out here, that they have to find the scope and what the scope of the defendant's agreement was. But I think it has to be somehow tied to what's charged in the indictment.
MR. WEINREB: May I respond?
So, your Honor, this is a single question separated by a line. And the question begins by asking whether the conspiracy pertains to a sequence of events over multiple days or a distinctive end. But a conspiracy is an agreement. It doesn't require any events to take place.
And so the question does not seem to be directed so much to whether a conspiracy can last more than one day, which is what the Court's answer is mostly focused on, but rather, the events that may occur in the course of the conspiracy. And it is undoubtedly focused on the "death results" because that is the only -- since there were no overt acts given to the jury to decide upon, the only event that they are required to determine occurred that pertains to the conspiracy is whether death resulted. So I think that it is fair for the government to ask that the answer focus on the gravamen of the jury's concern here.
The only way that -- it is unusual for a case to charge that something -- an action resulted from the conspiracy, but it is not unusual -- in fact, it's extremely common to charge that acts were committed in furtherance of the conspiracy. And in this case the government did, in fact, charge that the death of Officer Collier -- we specifically charged that that was an act in furtherance of the conspiracy.
That seems to embrace Ms. Conrad's concern that it be -- that the death result not accidentally or simply by coincidence from a conspiracy, but that it had been within the scope of the conspiracy, it had been in furtherance of the conspiracy.
I don't believe it's the case that the conspirators must agree ahead of time that these deaths are part of the object of the conspiracy. That is not what it means for something to result from a conspiracy or from something to be an act in furtherance of the conspiracy. They simply have to agree on a -- to do something the law forbids, such as bombing a place of public use, using a weapon of mass destruction. And then various acts such as stealing a gun in order to arm themselves for a continuing bombing campaign can be an act in furtherance of the conspiracy.
So I think it would affirmatively mislead them to suggest that these A, B, C and D events were acts that had to be part of the agreement.
MS. CONRAD: Well --
MR. WEINREB: That's simply not true.
MS. CONRAD: -- I would agree with that last part, and if I said that, I misspoke. I think the deaths have to result from acts in furtherance of the original conspiracy. In other words, you can't add another conspiracy on; it's got to be within that scope. So that's what I meant to say.
But just this point about highlighting Officer Collier, we really object --
THE COURT: No, I'm not going to do that.
MS. CONRAD: Okay.
THE COURT: So I think what I will add is a reminder that -- I'll double-check it, but I think I can say -- your proposal as the government alleges, I may say as the indictment alleges in Counts 1, 6 and 11, conspiracies that span these dates, and that their focus should be on a conspiracy as alleged in the indictment. There are three. They may be the same, they may be different. It's up to them. And leave it at that, and otherwise use what I have.
But I'll draw their attention to the span that is alleged in the indictment which takes -- I think partially meets your point, it takes it through April 19th. But I'm not going to get specific about details of any of the conspiracies.
MS. CONRAD: What about the point that it ends when its purpose is accomplished?
THE COURT: I don't think so.
MR. WEINREB: Furthermore, your Honor, for the record, we would -- we disagree with the characterization that the government argued in any way that the conspiracy ended and then a new one began. What the government argued was that Mr. Tsarnaev went back to his former life in order to lay low, essentially, and wait till the time was right for the next bombings to occur.
MS. CONRAD: I just meant that the jury could interpret the evidence that way, not that you argued it.
THE COURT: All right. Thank you.
UNIDENTIFIED ATTORNEY: Thank you, your Honor.
(The proceedings adjourned at 9:11 a.m.)
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 9:21 a.m.)
COURT CLERK: Be seated.
THE COURT: Good morning, jurors.
JUROR: Good morning, your Honor.
THE COURT: The record will reflect that all deliberating jurors have returned as well as all the alternate jurors.
I ask you again whether you can tell me whether you have abided by my instructions to avoid any discussion of the case outside of the confines of the jury room, for the deliberating jury.
JUROR: Yes, sir.
THE COURT: And avoided any news reports or other media reports of the case?
JUROR: Yes.