2.Waltham Subpoena Motion, Investigative Disclosure, and Juror-Illness Adjournment

MS. CONRAD: So there are two aspects to this: One was in the original motion and one was in the supplemental memorandum that I filed. The government has consistently taken the position that its -- first of all, it's an ongoing investigation. So now Mr. Chakravarty says there's no new information, which suggests that it's not an ongoing investigation and, therefore, the invocation of the law enforcement privilege way back when this issue was first raised which Mr. Weinreb even said was tacking closer to the wind on this issue is perhaps not validly invoked if there is no new information.

To the extent that -- the government has also taken the position that they do not -- are not in possession of the information regarding the investigation, that the investigation is being run solely by state officials, whether they be in the DA's office, in the state police or in Waltham. So that's why we filed the motion for an order to those agencies to provide -- for in camera review, if necessary, that information.

And just to put it in context again, the reason, your Honor, as I understood it ruled that we could not bring out evidence of the Waltham murders and Tamerlan's involvement is because we didn't have sufficient evidence to meet a threshold to show that he was involved. The government is taking the position that whatever information exists is in the possession, custody and control of state actors and they don't have access to it, so the logical next step is for us to find out what information exists within the hands of the state actors.

We used the example of the search warrant to indicate that a federal search warrant was used to obtain these samples and something like the results of that might be relevant. There's also other indications that the FBI has been involved in this investigation including the fact that in a 302 disclosed last week regarding Matanov, he was questioned at length, and that was the supplemental memorandum, regarding the Waltham murders and his knowledge of the Waltham murders and his knowledge of Todashev who was apparently his roommate at the time.

So there are two prongs to this: The first is really just simply we would like a court order to produce whatever state agency information exists for in camera review and to disclose under whatever protective order is necessary information indicating that Tamerlan Tsarnaev was, in fact, a participant in those murders. Just as example, the Matanov 302 asks about money wired over to Russia in the aftermath of the murders, quote, in the amount of the proceeds of the robbery.

Well, it's never been publicly reported, to my knowledge, that there was a robbery. This indicates that the FBI was aware of the amount of money that was sent over. I think the clear implication is that the -- that Matanov got the money from either Tamerlan or Todashev -- the implication is Tamerlan because they talk about him not sending money over when Tamerlan is in Russia. So it seems like the government has additional information. So that's the second prong.

The first part is we would like a court order to the state agencies. The second part is -- if there's no information, there is no information. End of story.

The second part is we would like the government to produce for in camera review any information it now has, as opposed to the information it had a year and some months ago, regarding Tamerlan's involvement for in camera review because to say we haven't met a burden without us having access to the information that would permit us to meet that burden it seems to me would be fundamentally unfair.