1.Khozhugov Bias Evidence, Custody-Dispute Limits, and Deferred Remote-Oath Instruction
98 linesP R O C E E D I N G S
THE COURT: Somebody said there was an issue before we brought the jury out.
MS. CLARKE: Yes.
THE COURT: All right.
(SIDEBAR CONFERENCE AS FOLLOWS:
MS. CLARKE: Judge, this is regarding the first witness. As you know from the pleadings and discussions about him coming to the United States, he was convicted of misdemeanor assault; a protection order violation was dismissed; and there have been some allegations, never confirmed, to my knowledge, in any kind of a pleading or writing or document or complaint, about parental kidnapping, you know, sort of a concern about him keeping the child of Ailina and him in Kazakhstan and not returning the child.
I've talked to Mr. Chakravarty, who's doing the cross-examination of this witness, and he has acknowledged that they will not seek to use it to impeach -- any of those allegations to impeach the witness. But Mr. Chakravarty believes that it will be evidence of bias if the witness testifies to the family being essentially crazy and manipulative. I guess you can probably speak to that.
MR. CHAKRAVARTY: A disgruntled in-law who blames the mother-in-law for breaking up his marriage and for a host of, I guess, threatening and other types of behavior.
MR. WEINREB: I don't think that quite conveys it. He is part of the Ruslan branch of the family. He's Ruslan's brother-in-law.
THE COURT: Meaning Ruslan's wife's brother?
MS. CLARKE: Exactly.
MR. WEINREB: Ruslan's wife's brother married Ailina Tsarnaev. She then believed that he was cheating on her. She accused him of it. He hit her. She divorced him. Ruslan -- and there's a -- and Ruslan and that side of the family blamed Ailina and particularly Zubeidat for false -- falsely accusing him, the marriage, for besmirching his name. And it created a huge rift between Anzor and his relatives on the one hand and Zubeidat and her relatives on the other.
He is going to talk about how Zubeidat and her children or her side of the family are dysfunctional and are crazy and so on. They're going to have no idea why he might feel so passionately.
MS. CLARKE: Let me clarify this. The purpose of his testimony is not to talk about the dysfunction of the Tsarnaev family. He will talk about her -- Zubeidat with her son Tamerlan, her relationship. He observed it in the family home. He's not going to drag in the nastiness of the divorce. It's not very relevant to the testimony.
MR. WEINREB: Ruslan hated Zubeidat. They think she's a witch. They think all -- everything that's gone wrong in the family is all Zubeidat's fault going back to the day she met Anzor. And Tamerlan -- without making it relevant what the source of his extreme animus towards them might be.
MS. CLARKE: Well, this is not Ruslan. This is Elmirza.
MR. WEINREB: His brother-in-law. The rift occurred because of Elmirza.
THE COURT: I think some of it may well be in play. I guess I'll have to hear what his direct is like. But if it can be shown that he harbors a possibly skewing bias, that's something the jury should hear about.
MS. CLARKE: The skewed bias will be against his wife, not brother --
MR. WEINREB: That's not true. They all blame Zubeidat.
MS. CLARKE: Could we have a proffer as to what it is that the prosecution would elicit?
THE COURT: I think we did.
MR. WEINREB: The whole story of how he came to blame Zubeidat for the destruction of his marriage and for his --
MS. CLARKE: He's not going to testify about that.
MR. WEINREB: But he's going to testify about Zubeidat.
MS. CLARKE: He's going to testify about his observations.
MR. WEINREB: And yet he blames Zubeidat for the destruction of his marriage.
MS. CLARKE: But he's not going --
MR. WEINREB: But he has a bias against her.
THE COURT: I think it may depend on where he goes on direct, but I can conceive of it being appropriate cross-examination to expose a bias, but --
MS. CLARKE: All right. Then what I'm aware of is a misdemeanor assault conviction, a dismissed protection order, and some sort of, in the ether, allegations of parental kidnapping. Now, if we could have a proffer as to the underlying basis for that, that would be nice to know before I go through this direct.
THE COURT: Are you going to get into kidnapping?
MR. CHAKRAVARTY: The fact that he was deprived of his son by Zubeidat for years until, finally, with the assistance of the defendant, the son was brought to Ruslan's family and then ultimately brought over to Kazakhstan where now the son has resided with the witness. Ailina, the wife, mother of the child, claimed to the FBI that he had essentially parentally kidnapped --
THE COURT: I'm not sure that --
MR. CHAKRAVARTY: It goes both ways. One, he blames Zubeidat for keeping as essentially ransom his son from him for a long time, further fomenting the dislike, the hatred, of the Tsarnaev family. And then after he then gets custody of his son --
THE COURT: We're talking about his bias, not other people's bias towards him.
MR. CHAKRAVARTY: Correct. But it's his bias toward the family. It took everything in his power and his uncle's power to be able to extract his son from the clutches of this family.
MR. WEINREB: He's biased against Zubeidat because he sees her as having kept his child from him and evidence --
THE COURT: But he has the child.
MR. WEINREB: He has the child now but after years of being deprived.
THE COURT: Tell me about the keeping.
MR. WEINREB: Well, the keeping is because he feels that it was -- the child was unfairly kept from him.
THE COURT: No. That's what -- how was the child unfairly kept from him?
MR. CHAKRAVARTY: He wanted the child when he went back to Kazakhstan. Zubeidat gave him an ultimatum, essentially saying, If you don't come back to the marriage and stay married to my daughter, then you're not getting back this child.
THE COURT: Kidnapping is an inflammatory concept. It could be less inflammatory if it's a child custody dispute. And you can talk about it generally that there's a custody --
MR. WEINREB: We could avoid the term "kidnapping." That's not the point here. We just want the jury to understand the story of the history.
THE COURT: If there's animus that he would testify to between him and Zubeidat or Ailina -- is it Ailina?
MR. WEINREB: Ailina.
THE COURT: -- the animosity could be shown, but it should be done in a non-inflammatory way. Kidnapping is not a way to talk about it. A child custody dispute that might be going on may be fair game.
MS. CLARKE: The child was going to return to Boston, but the bombing occurred and the father, I think rather rightfully, held onto the child until things could --
THE COURT: Well --
MR. CHAKRAVARTY: There's another component which is best to flag now before we start, is after this -- the break-up between Ailina --
THE COURT: Which was when, by the way?
MR. CHAKRAVARTY: It was 2008 that he went back to Kazakhstan. He then returned in 2009 and then again in 2011 to see his son.
MS. CLARKE: He finished his education here, too.
MR. CHAKRAVARTY: He continued his education. I don't know that he actually finished it. He continued it. He went back. He was on an F1 visa. But he maintained contact with Zubeidat during all of this time, and she continued to provide him information, continued often to lambast him when she would hear a rumor about all the things that he and his family were accusing -- typical bad break-up relationship -- accusing Ailina of besmirching his character, explaining the reasons for the break-up was something other than what the -- at least he would say it was -- and then threatened him and his family to say, If you continue doing this kind of talking about our family like this, we'll scourge you to earth. We will tar you on the internet. We will send people out to harass you. We will make -- the idea of this Hatfields and McCoys type of scenario.
THE COURT: I don't want to try a Hatfield and McCoy case here.
MR. WEINREB: But the jury is going to be asked.
THE COURT: The point can be made, but let's not overdo it.
MS. CLARKE: I also don't want the prosecution to raise these issues that I'm not raising so that they can shoot them down.
MR. WEINREB: Your Honor, by asking him about Zubeidat, they're raised. There's no other way around it. He harbors tremendous animus for Zubeidat, as does his father-in-law.
THE COURT: Is he going to be testifying --
MR. WEINREB: He's going to be testifying about her and her dysfunction and her relationship with Tamerlan. It's only being offered because the defense thinks it reflects poorly on --
THE COURT: Okay.
. . . END OF SIDEBAR CONFERENCE.)
MS. CLARKE: Your Honor, I believe that the video witness is the first witness, so do we need to adjust the screens?
THE COURT: When the jury is in the box, we'll do that.
MR. WEINREB: Your Honor, I just wanted to add one last thing, which is, the Court has said that there would be an instruction to the jury about the unusual circumstances in which this --
THE COURT: What did you want me to say?
MR. WEINREB: That it's not under oath, for example.
THE COURT: We will administer an oath.
MR. WEINREB: But it's not an enforceable oath.
MS. CLARKE: He's on U.S. -- he's at the consulate. This is mostly of the making of the government that he's having to come in by video.
MR. WEINREB: Well, we would dispute that.
THE COURT: But specifically?
MR. WEINREB: We were under the understanding the Court was going to instruct the jury that he's not under the pains and penalties of perjury because he's not in this country and can't be prosecuted for it if he perjures himself. There's no way to enforce the oath. It's just a -- it's just a moral suasion, but there's no legal --
THE COURT: Well --
MR. WEINREB: -- consequences for him.
MS. CLARKE: We object to any admonition that would diminish the quality of his testimony.
THE COURT: I'm not going to do it at the beginning, but I may do it at some point.
MR. WEINREB: Very well.
MS. CLARKE: Your Honor, would the Court give us an opportunity to be heard before any instruction is given?
THE COURT: All right.
(The jury entered the room at 9:25 a.m.)
THE COURT: Good morning, jurors. Jurors, we're going to begin this morning with a witness who will be testifying via remote connection. The witness is in Almaty, Kazakhstan. We have a video connection. And the examination of the witness will be typical in many ways, but it will be by remote connection.
You will actually see it on your own monitors. If an exhibit is shown, you will see the exhibit on your monitors; and when that happens, you won't see the witness for the time being. We can't do both. But the witness will continue to be on this monitor, and we're going to move that into position. Phil will do it. That's what we pay him for.
MS. CLARKE: There you go.
THE COURT: Can the jurors -- I remind you that the -- you'll rarely have to do it because you'll have the video of the witness on your monitors. It's only when you have an exhibit; and if you wanted to look and see the witness when you're looking at the exhibit, that would be it. I think that's the best we can do.
COURT CLERK: Sir, will you please raise your right hand. Please raise your right hand. Do you solemnly swear or affirm under the pains and penalties of perjury that the testimony that you're about to give the Court and jury in this issue now on trial shall be the truth, the whole truth, and nothing but the truth?
He's not hearing me.
ELMIRZA KHOZHUGOV: Can you hear me?
COURT CLERK: Yes. Can you hear me? Can you hear the Court?
ELMIRZA KHOZHUGOV: Can you hear me now?
COURT CLERK: Yes. Can you hear the Court?
ELMIRZA KHOZHUGOV: I heard what you said.
COURT CLERK: You want me to repeat it?
THE COURT: Yes, repeat it.
ELMIRZA KHOZHUGOV: Yes, please.
COURT CLERK: Do you solemnly swear or affirm under the pains and penalties of perjury that the testimony you're about to give the Court and the jury in this issue now on trial shall be the truth, the whole truth, and nothing but the truth?
ELMIRZA KHOZHUGOV: I swear.
COURT CLERK: Please state your name and spell your first and last name for the record.
ELMIRZA KHOZHUGOV: My name is Elmirza Khozhugov. It's E-l-m-i-r-z-a. Last name is K-h-o-z-h-u-g-o-v.