4.Hearing on Immigration Parole for Khozhugov
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Mr. Fick?
THE COURT: Yes.
MR. FICK: So this individual is the -- is the former -- the estranged husband of the defendant's sister and the brother-in-law of the defendant's uncle. He lived for an extended period of time in the Cambridge home at the time he was still with the defendant's sister. He is the same age as Tamerlan Tsarnaev, and he really has a wealth of information to provide about the family, the dynamics, the chaos and that sort of thing.
Interestingly, the government, either yesterday or the day before, produced an FBI 302 from August of 2013 about Mr. Khozhugov which conveys much, although not all, of this kind of information that he could provide. It's a bit puzzling about why that disclosure came so late since we would view much of the content as mitigating and exculpatory. The government said something to the effect that it was overlooked and it hadn't been classified for some time which is sort of puzzling in its own way given the kind of pedestrian contents in the scheme of security classification and the fact that the government repeatedly earlier in the case indicated there were no CIPA or FISA issues that would arise.
In any event, the bottom line is this is an extremely important witness. His parole was denied. It was sort of informally conveyed by one of the agents to one of our investigators that the reason was a concern on the FBI's part that there would be some kind of an incident or a conflict between this individual and the defendant's sister.
We explained in some detail about the motion and sent an email response asking for reconsideration, why that was sort of an unfounded concern especially in light of the extraordinarily stringent security conditions that are being placed on the parolees.
And then yesterday there was an additional very peculiar addition to the story which is that parallel to the parole process, Mr. Khozhugov had applied in Kazakhstan for an ordinary U.S. visitor's visa. That was issued to him, we are informed, yesterday morning and then was promptly rescinded later that day when the State Department learned that the separate parole request had been denied.
The bottom line is we really cannot comprehend why this person is not being allowed to come. We think he's an extremely important witness in the case.
THE COURT: And what is my authority to order some executive department to do something they have determined they should not do?
MR. FICK: Well, the statute and the regulations sort of provide for parole as a way to get in witnesses. It seems to me there's a Fifth and Sixth Amendment right for us to be able to call witnesses who are important to the case. And so to the extent the Court has any -- typically has authority over an executive department to make sure that the rights of a defendant are vindicated, or are protected, I think that same authority would apply here.
I would point to the Filippi case which indicated it would be a due process violation or a Fifth Amendment and Sixth Amendment violation for the government not to assist in obtaining parole for a witness.
THE COURT: But I think that order was directed to the prosecution team, not to some unrelated department, or formally unrelated, anyway.
MR. FICK: I'm not sure the order in that case -- I'm not sure the underlying order in that case -- to whom it was directed, but I think the bottom line was ultimately the executive in whatever department that controls access to the United States, and to the extent the executive, which is also the prosecuting -- well, it's the branch of government which is prosecuting this case is preventing us from calling an important witness who is willing and able to testify, that is a due process of Fifth and Sixth Amendment violation.
THE COURT: Mr. Weinreb?
MR. WEINREB: Your Honor, much of what Mr. Fick has said is factually incorrect. I'll say in particular it's our understanding that he was not granted a visa. That's just misinformation. And the reasons given for why the FBI would not request to DHS that he be paroled is that he was charged with a felony crime of violence, which was an assault on his now ex-wife. He pled guilty to a misdemeanor, yet it was still a crime of violence, and then he was found to have violated a stay-away order.
Under those circumstances, the FBI has deemed him a risk to public safety if he's paroled into the country. And I don't think the point is well taken that because he will be kept at a hotel and there will be FBI agents stationed there, that the threat to public safety, indeed, the threat to themselves, should be discounted.
A hotel is not a jail and the FBI are not jailers. It's unfair to put that responsibility on the FBI to essentially be jailers, to hold somebody in circumstances tantamount to custody when the experts in custody, such as BOP, would never dream of keeping somebody in a jail or simply having two people stationed in a hallway or in another room or something to protect the safety of them.
I don't think the Filippi case is on point for a couple of reasons. First of all, in the Filippi case, it seems to me, there was no countervailing reason for not granting parole. You know, the indication in that case was simply that the government ignored all the requests to parole the defendant, and then finally said they only had two days' notice and that it was too late. That's obviously not the situation here.
Secondly, that case was decided in, I believe, back in the early 1990s before the technology was readily available to have individuals questioned over a closed-circuit television live in the courtroom. And if you look at probably the more applicable case, which is United States versus Valenzuela-Bernal, a Supreme Court case, the Court in that case talks about the executive's different functions, different roles, and the need for the executive to balance them. One is to protect the -- keep the country safe from aliens who live outside its borders, and that that has to be balanced with its other duties under the Constitution, and against -- that also was a case involving Fifth and Sixth Amendment rights. And, for example, the court there held that it was okay for the United States to deport aliens who might have exculpatory information absent some showing of bad faith or some other kinds of showings. So it's clear that the rights and the interests can be balanced.
We think that an appropriate balance to strike here would be to permit this individual to testify over closed-circuit television provided that he agrees to certain conditions that seem reasonable under the circumstances. One is that he swear to tell the truth the way every ordinary witness would even though that oath cannot be enforced by the Court; secondly, that the jury be informed that he's not subject to the pains and penalties of perjury the way other witnesses are; and, third, that he understand and agree that in addition to answering questions on direct examination, he has to answer all questions that are asked of him on cross-examination truthfully or he may not testify in the first place.
So I think that that is a solution that would be fair under the circumstances regardless of what the surrounding legal picture is, what the law is, which I think is not entirely clear, at least not from the cases that were cited in the defense motion, and maybe not even from -- based on a more thorough analysis, and it would avoid having to make a lot of -- do a lot of difficult legal research and make a lot of legal decisions, if a practical solution like that were done.
MR. FICK: Very briefly: The domestic incident we're talking about was in 2008 when both this individual and Ms. Tsarnaev were extremely young. It resolved as a misdemeanor. Our understanding is that in subsequent years after the incident, Mr. Khozhugov applied for, obtained a U.S. visa, visited the United States without incident, went back again. And the chief issue that he's had since is that there's a custody dispute between he and Ms. Tsarnaev about where their son should live, which they've been working out.
To suggest that this person had a misdemeanor -- a domestic violence conviction years ago and has subsequently been in the United States without incident, to suggest that he's a threat to public safety is simply -- it doesn't make any sense.
You know, at this point in the case, having expected that he was going to come and now that he is not, our ability within the time we have to present our case, to get somebody to Kazakhstan to make the arrangements to do a closed-circuit presentation, I'm just not sure we can even make that happen still at this point. And the conditions the government wants to put on that, frankly, are uncalled for.
Individuals have testified, simply taken the oath over the closed-circuit television in other cases in this court. To the extent there is a basis for a perjury prosecution, it seems extraordinarily remote here, that such an indictment can be handed down whether somebody is here or not even if they can't be arrested immediately. But the bottom line is to call particular attention to this person and his testimony over hypothetically a closed-circuit connection, to suggest that there's something inherently less trustworthy about it simply devalues for the defense the potential impact of that testimony even more than the fact that we can't get him here in person already does devalue it.
So for all of those reasons that is not an appropriate substitute, and really, just the basis for keeping him out, especially given the conditions, especially given the surrounding circumstances of the original incident, simply don't hold water.
THE COURT: Where does he live?
THE COURT: So that's a place where you were making arrangements with our IT people to have a connection?
MR. FICK: Well, we had talked about the possibility of doing that and some other places. And in talking with the IT people about the technical requirements, the kind of computer we need to buy and the software and that sort of thing, but we had not gotten down to the brass tacks of finding a physical place in Kazakhstan to do it because we sort of decided to cut the other individuals we had thought about bringing in to Moakley, and we had a reason to think that Mr. Khozhugov would be able to attend in person.
MR. WEINREB: Your Honor, just to complete the record in case there's an appeal later on, there were additional factors that went into the FBI's decision. The defendant's sister, who is the witness's ex-wife, initially made a claim of parental kidnapping because the witness took their child out of the country, she claimed, without her permission, against her will. And the defendant may have actually, not wittingly, perhaps, but played a part in that by actually delivering the child to Ruslan Tsarni's house in Maryland, which I believe is the place from where the child had been taken away.
And the FBI also has reasons to believe that there's a border security issue here. The witness has indicated a desire to come back to the United States and to remain here, and there is -- any time somebody is in the country, even if they're not admitted, even if they're just paroled in, there always is an increased risk they will try to find some way to stay in the country. And that's always a concern in these types of situations. So that and other information which...
(Counsel confer off the record.)
MR. WEINREB: I think I mentioned earlier there was a restraining order which he violated indicating that he is not -- he's either unwilling or unable to abide by judicial restraints on his conduct. And we don't know his willingness or ability to abide by law enforcement restraints on his --
THE COURT: All right. I'll reserve on it. The motion was filed on Wednesday and a supplement filed this morning. Is the government content to rest on your presentation here or do you want to file something?
MR. WEINREB: No, we're content.