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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

----------------------------------------------------- )

UNITED STATES OF AMERICA )

) CASE No: 1:13‐cr‐10238‐DPW

)

v. )

) MOTION FOR

) CHANGE OF VENUE;

) MEMORANDUM IN SUPPORT

DIAS KADYRBAYEV, ) OF MOTION

AZAMAT TAZHAYAKOV, )

ROBEL PHILLIPOS, )

Defendants. )

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MOTION FOR CHANGE OF VENUE

Azamat Tazhayakov, by his attorney, Nicholas Wooldridge, respectfully moves this

Court, pursuant to Rule 18 and Rule 21(a) of the Federal Rules of Criminal Procedure, and the

Fourth, Fifth and Fourteenth Amendments to the U.S. Constitution, to change the venue in this

case. The grounds for this Motion are that there exists within this District among a significant

percentage of residents with so great a prejudice against the Defendant that he cannot obtain a

fair and impartial trial and that a Jury selected from this District will be unable to deliberate on

the evidence presented in the courtroom, free from outside influence. These grounds demonstrate

that a trial in Massachusetts will violate the fair and impartial trial guarantee established by the

Federal Constitution, will violate the Due Process Clause of the Fifth and Fourteenth

Amendments to the U.S. Constitution, and will violate the Jury Clause of the Sixth, Fifth and

Fourteenth Amendments to the U.S. Constitution.

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PARTIES CONFERRED PURSUANT TO LOCAL RULE 7.1(A)(2)

The parties have conferred in good faith to resolve or narrow the issues presented herein. The

government disagrees with the grounds for the instant request in whole.

FACTUAL BACKGROUND

The case before this Court stems from one of the most heavily publicized and

misreported cases in recent local Boston history. Literally thousands upon thousands of

internet blogs and news accounts have been published about this case, both partially

factual and fictional. News reports, internet blogs, and internet discussion groups have

been local and national. Consequently, it is unlikely there is a single jurisdiction in this

State into which this publicity has not spread.

Defendant Tazhayakov does not seek to change venue in this case merely because there

has been publicity, nor does he seek trial in a location in which no publicity has occurred.

Rather, what the Defendant seeks, and what he is entitled to under the U.S. Constitution,

is a trial in a community which has not been polarized by fictional pretrial publicity or

torn apart by the circumstances of this case. Regrettably, the State of Massachusetts does not

embrace these communities.

The instant charges arise from the investigation of the two explosions that occurred on

April 15, 2013 in Boston during the Boston Marathon (―The Boston Marathon Bombings‖), and

ensuing events in Watertown, Massachusetts. According to the government‘s file, it is alleged

that Dzhokhar Tsarnaev ("Tsarnaev") was one of the individuals who caused the explosions.1 His

proceedings, in which the Department of Justice which will be seeking the death penalty, is

1 Along with his brother Tamerlan Tsarnaev, who was shot and killed by police during efforts to apprehend him.

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currently pending, and scheduled for trial in November of this year. (U.S. v. Dzhokhar Tsarnaev,

No. 13-CR-10200-GAO).

On April 15, 2013, at approximately 2:49 p.m., while the Boston Marathon, an annual

26.2 mile race, was underway, two explosions occurred in Boston, Massachusetts, on the north

side of Boylston Street along the Marathon's final stretch in close proximity to the finish line.

The first explosion occurred in the vicinity of 671 Boylston Street and the second occurred

approximately one block away in front of 755 Boylston Street. The explosive devices were

placed near the metal barriers where hundreds of spectators were watching runners approach the

finish line. Each explosion killed at least one person, maimed, burned and wounded scores of

others, and damaged public and private property, including the streets, sidewalk, barriers, and

property owned by people and businesses in the locations where the explosions occurred. In

total, three people were killed and over two hundred individuals were injured.

Immediately following the bombings and continuing until the evening of Friday, April

19, 2013 when Dzhokhar Tsarnaev was arrested, thousands of law enforcement personnel from

local police departments, the Massachusetts State Police, and federal agencies conducted an

extensive manhunt for the two suspected Boston Marathon bombers, who were initially referred

to by law enforcement as "Bomber One" and "Bomber Two," and who were later identified as

Tamerlan Tsarnaev (Bomber One) and Dzhokhar Tsarnaev (Bomber Two).

The Federal Bureau of Investigation's ("FBI's") Joint Terrorism Task Force ("JTTF") led

the investigation of the bombings. As part of this domestic terrorism investigation, numerous

interviews were conducted to, among other things: (1) uncover and thwart any other planned

attacks; (2) identify, locate, and arrest the bombers; and (3) collect evidence. At approximately

5:00 p.m. on April 18, 2013, the FBI published video and photographic images of Bomber One

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and Bomber Two on its website. Those images were widely rebroadcast by media outlets all over

the country and the world. The FBI asked for the public's help in identifying the two men

pictured in the video and photographs. On Friday, April 19, 2013, the men pictured in these

video images and photographs were identified as Tamerlan Tsarnaev and Dzhokhar Tsarnaev,

both Chechen nationals. On the evening of Friday, April 19, 2013, Dzhokhar Tsarnaev was

arrested in Watertown, Massachusetts. His brother, Tamerlan Tsarnaev, was killed earlier that

day following a shootout with police.

The Media and Publicity

Not surprisingly, the bombing on April 15, 2013, and ensuing manhunt for the

perpetrators over the following days generated enormous media coverage on a local, national and

international level. In addition to the contemporaneous reporting being broadcast on television

and radio, law enforcement also issued directives to the citizens of Boston in the press and on its

website, concerning the status of their investigation and requested information seeking their help

in identifying the bombers. The internet was flooded with articles and blogs concerning the

events across the world, the quantity of which increased when it became known that the alleged

bombers were of foreign descent, and Muslim. The publicity occurred immediately and it is on-

going with every development in the case. Concerning local media coverage, a simple Google

search of the term ―Boston Globe and Boston Marathon Bombing‖ will produce 19,800,000

―hits‖ in 0.38 seconds. Searches for other area newspapers and network television stations

produce like results. While media attention over the last 12 months may have waned for a brief

period, it has never disappeared.

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For example, the one-year anniversary of the events occasioned renewed media interest

and public fears in anticipation of this year‘s running of the Boston Marathon. These fears were

exacerbated by recent developments at the race site. According to news reports, shortly after

ceremonies ended Tuesday (April 15, 2014) to commemorate the one year anniversary of the

Boston Marathon bombing, two backpacks in the area of the Boylston Street finish line raised

concerns of police, who evacuated the neighborhood. The Boston Police Department called in

the bomb squad and performed what is known as a "controlled disruption" of the bags.2 Without

having healed from the initial shock, Boston residents have had their emotional wounds re-

opened, and quite reasonably, their passions inflamed anew. This untimely incident,

undoubtedly, will arouse the excitement of a community that has already been saturated by the

earlier publicity stemming from last years‘ incident.

Another recent development will likely further exacerbate the Boston community‘s

feelings of pain and violation. District Court Judge George A. O'Toole Jr. ruled on April 16,

2014, that Dzhokhar Tsarnaev may view autopsy photographs of three people who died in the

Boston Marathon bombings.3 The legal underpinnings for such a ruling are likely to escape the

general public, and instead be viewed through a prism lined with indignation, fury.

A sampling of the pretrial publicity in this matter is available to all with access to

television and particularly, the internet. It would take a herculean effort to provide a complete

accounting of all pretrial publicity. Just as significantly, even a representative sample would not

adequately reflect the treatment this case has received by the "bloggers" on the world wide web,

2 Police arrested a man who is the owner of the bags, although later police reports indicated the man owned only one

of the backpacks. Police charged the man with possession of a hoax device, disturbing the peace and disorderly

conduct. One of the backpacks held a rice cooker inside. USA Today, Man with 'hoax device' frays nerves at Boston

Marathon site, April 16, 2014.

3 The full article can be viewed at http://www.latimes.com/nation/nationnow/la-na-nn-boston-marathon-bombing-

autopsy-photos-20140416,0,4243467.story#ixzz2zCKBMPU4.

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and the amount of venom directed at the bombers and those who allegedly assisted them before

or after the fact, which includes Mr. Tazhayakov.

There is an insidious form of ―guilt by association‖ which has attached, and cannot be

ignored here. Further, while the defendants are not charged with having committed the actual

bombings, or aided its commission, they are ―joined at the hip‖ with its factual basis; an act of

domestic terrorism, an extremely serious charge which has political overtones that affect the

public in general. Thus, despite the actual offenses set forth in the indictment, it is difficult to

imagine a more serious offense under the circumstances and the prejudicial spill-over which

effects them.

In fact, Mr. Tazhayakov urges this court to take judicial notice of the contents of all

newspapers of general circulation in Boston during the period immediately following the

Marathon Bombings to the present directly related to the incident, as well as ―blogs‖ discussing

his friendship with Tsarnaev and alleged efforts to ―cover-up‖ Tsarnaev‘s acts. This Court is

neither limited to noting adjudicative facts in the traditional meaning of Rule 201, Federal Rules

of Evidence, nor must it be solely concerned with the truth or falsity of media reports.

“What is important is that the reports, aside from their accuracy or veracity,

influence the community and create attitudes and beliefs. Furthermore, it is within

the Court's legitimate function to make its own assessment of conditions created

by pretrial publicity. To that end it must evaluate the nature of the materials

publicized, the extent of its dissemination, its duration and its impact on the

community from which potential jurors shall be drawn. The fact that defendants

have not provided the court with a record of media coverage should not serve to

negate the fact of its existence or bar the court from making its own estimate of

it.‖

United States v. Perez-Casillas, 593 F. Supp. 794, 797 (D.P.R. 1984). See also, United States v.

Griffin, 525 F.2d 710, 711 (1st Cir. Mass. 1975) (where the Massachusetts District Court issued

an order for enforced busing in the South Boston public schools, and then took judicial notice

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that the ensuing busing received substantial publicity and aroused widespread resentment).

The plethora of newspaper articles and reports, and inflammatory internet commentary

cannot be thoroughly reproduced or enumerated herein, but are well worth reading if one wishes

to acquire a flavor for the nature and extent of the negative publicity which has preceded the

impending trial of not only Tsarnaev, but defendant Tazhayakov as well. Such a review will

reveal the emotional overload and psychological stresses which Boston residents have suffered.

The Presence on the Internet

Millions of people use blogs or message boards as a means of communication and for the

sharing of ideas over the internet. The internet is home to countless blogs that serve as

information sources for people everywhere; there are countless blogs that are active on the

internet that are dedicated just to the Marathon Bombing and the victims. Web sites and blogs

describe gruesome details that are not in the public record, and that are simply untrue or

unreliable. They depict gruesome details and images that are intended to shock the conscience of

its readers.

If one Googles ―Boston Marathon Bombing,‖ 277,000,000 hits come back in a matter of

.36 seconds; Google ―blogs and Boston Marathon Bombing,‖ 160,000,000 hits in 0.33 seconds;

―Tazhayakov,‖ 164,000 hits in 0.44 seconds; ―Tazhayakov and guilt by association,‖ 7,210 hits

in 0.43 seconds. Facebook also contributes to the mania. A string from one conversation is

illustrative of the prejudice which has attached to him. On its Facebook page, KOCO 5 News,

on August 8, 2013, posted the following headline: ·

Thursday's indictment accuses Tazhayakov and Kadyrbayev of helping Tsarnaev

after the April 15 bombing by taking items from his dorm room at the University

of Massachusetts-Dartmouth to keep them from investigators.

Putting aside for the moment the issue of whether this is either neutral or accurate, one of the

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readers immediately opined:

―Guilty by association and should be given the same death sentence he better get.‖ 4

Searching ―Boston Marathon Bombing‖ on YouTube produces 373,000 video results of

the victims in various stages of bloodied distress and anguish, complete with their own biased

commentaries. Substituting ―Tazhayakov‖ will display, on the first page alone, these captions

and accompanying comments:

Another Tsarnaev Friend Indicted

By: E. F. Beall Thursday August 29, 2013 4:39 pm

―…the active interference by Kadyrbayev and Tazhayakov and lies

by Kadyrbayev, Tazhayakov and Phillipos, given the heinous nature of the crime

being investigated, its horrific consequences and the timing of the interference

and lies, is so morally unconscionable that severe criminal punishment is in

order…we have guilt by association here…‖.5

…..

3 More Boston Marathon Bombing Suspects Taken Into Custody

6

by keepinguuptodate

Published on May [ ], 2013

11 months ago

64 views

…..

"TERRORISTA #1" SUSPECTS ARRESTED7

The Money GPS ~ Author Exposing the Truth

11 months ago

165 views

Published on May 1, 2013

4 Reply by Anthony Evans, August 8, 2013 at 3:05pm

5 http://my.firedoglake.com/efbeall/2013/08/29/another-tsarnaev-friend-indicted/. 6 http://www.youtube.com/watch?v=DsgeqNgPU60.

7 http://www.youtube.com/watch?v=flJ5FAsIROs.

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―Two suspects who have been taken into custody in connection with the Boston

Marathon bombings drove a car with "Terrorista #1″ printed on the front plate.

Azamat Tazhayakov and Dias Kadyrbayev were reportedly arrested, along with one other

person, for allegedly making false statements and conspiring to obstruct justice during the

federal investigation into Boston Marathon bombing suspects Tamerlan and Dzhokhar

Tsarnaev, officials said Wednesday.

Tazhayakov and Kadrbayev, who are reportedly in FBI custody, drove around in a black

BMW with "Terrorista #1″ license plates and were also photographed with Dzhokhar

Tsarnaev in Times Square.‖

There are several racially charged, and anti-Muslim blogs on the internet that continue to

distribute and manufacture prejudicial accounts of the bombing. These blogs have an active,

unknown, and varied audience. Clearly, the assortment of content, including videos that continue

to spread lies, hate and other propaganda against the Defendant Tazhayakov (and the other

Defendants), demonstrates the amount, and inflammatory nature of prejudice which has infected

public opinion.

The largest unregulated source for information – the internet – has spread lies, inaccurate

details and wild theories meant to outrage and taint any jury pool. These untruths make a heinous

crime even more horrific, and has created an irreversible fog of prejudicial publicity. Simply put,

the extensive and prejudicial pretrial statements by others have served to create a mix of ethnic,

religious and national conflict. It has left in its wake a community that is highly and

understandably angry; one in which a large majority of residents have already formed opinions

about the guilt or innocence of Mr. Tazhayakov. As a consequence of the inflammatory

publicity in this case, significant segments of this community have taken clear and

entrenched positions about the guilt or innocence of Mr. Tazhayakov because of his consistent

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inclusion with Tsarnaev, the person actually accused of the crime. And many, in the media, on

the internet, and in the community have tagged Mr. Tazhayakov guilty by association, regardless

of the fact that he played no role in the planning, preparation or execution of the bombings.

The reporting of the news, sometimes off-course in the objective presentation of the facts,

has contained conclusory, slanted commentaries and subjective opinions of the reporters and

internet authors. The community has also been constantly exposed to remarks proclaiming belief

in defendants' guilt or expressing doubts on the veracity of their purported statements to law

enforcement authorities. Given the massive amount of publicity in this case, and the apparently

voracious appetite of the public for news about this case, it is likely that most- if not all- of the

prospective jurors will be familiar with the case, and harbor prejudices which will prevent the

defendants from obtaining a fair trial.

Mr. Tazhayakov is not entitled to a Jury that will acquit him, nor is the United States of

America entitled to a jury that will convict. Mr. Tazhayakov is entitled to a Jury whose members

have not formed preconceived opinions about this case. Mr. Tazhayakov is further entitled to a

jury that can deliberate in a community in which significant outside forces will not have

an impact on its deliberations or its verdict. In short, Mr. Tazhayakov is entitled not only to an

impartial jury, but also to a process in which that Jury may deliberate freely without

undue pressure from outside influences. That Jury, and that process, no longer exists in

Massachusetts.

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MEMORANDUM IN SUPPORT OF

MOTION FOR A CHANGE OF VENUE

A. The Policy Behind Granting a Motion for Change of Venue Dictates a Transfer

The constitutional guarantee of a fair trial, one in which a case is decided on its facts and

not on community opinion, is not a new or recent development. One hundred years ago, Justice

Oliver Wendell Holmes wrote that:

The theory of our system is that the conclusions to be reached in a case will be

induced only by evidence and argument in open court, and not by any outside

influence, whether of private or public print.

Patterson v. Colorado, 205 U.S. 454, 462 (1907). For more than half a century, it has been the

law that no person can be punished for a crime without ―a charge fairly made and fairly tried in a

public tribunal free of prejudice, excitement, and tyrannical power.‖ Chambers v. Florida, 309

U.S. 227, 236-37 (1940). Forty-five years ago, in setting aside a conviction based upon the

failure to change venue, the Court wrote: ―With his life at stake, it is not requiring too much that

petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion.‖ Irvin v.

Dowd, 366 U.S. 717, 728 (1961).

The Sixth Amendment guarantees ―trial, by an impartial jury…‖ in federal criminal

prosecutions. Moreover, it is well settled that a trial by jury in criminal cases is fundamental to

the American scheme of justice. See Duncan v. Lousiana, 391 U.S. 145, 149, 88 S.Ct. 1444,

1447, 20 L.Ed.2d 491 (1968).

―In essence, the right to jury trial guarantees to the criminally accused a fair trial

by a panel of impartial, ‗indifferent‘ jurors…‘A fair trial in a fair tribunal is a

basic requirement of due process.‘ In re Murchison, 349 U.S. 133, 136, 75 S.Ct.

623, 625, 99 L.Ed. 942. In the ultimate analysis, only the jury can strip a man of

his liberty or his life. In the language of Lord Coke, a juror must be as ‗indifferent

as he stands unsworne.‘ Co.Litt. 155b. His verdict must be based upon evidence

developed at the trial.‖ Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6

L.Ed.2d 751 (1961).

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In the overwhelming majority of criminal trials, pretrial publicity presents few

unmanageable threats to this important right. But when the case is a "sensational" one, tensions

develop between the right of the accused to a trial by an impartial jury and the rights guaranteed

others by the First Amendment. Where there is reasonable ground to believe that a fair and

impartial trial cannot be had in the County where the crimes have been committed, it is a

violation of the federal and state constitutional rights of an accused to deny an application by him

for a change of venue to a place or County where such conditions do not exist.

B. Prejudice in this Case is Evidenced by a Saturation of Inflammatory Publicity

"A change of venue is proper if the court determines that there exists 'so great a prejudice

against the defendant . . . in the transferring district that the defendant cannot obtain a fair and

impartial trial there.'" United States v. Misla-Aldarondo, 478 F.3d 52, 58 (1st Cir. 2007) (quoting

Fed. R. Crim. P. 21(a)).

Prejudice is presumed when ―either (a) inflammatory publicity about a case has so

saturated a community that it is almost impossible to draw an impartial jury from that

community, or (b) so many jurors admit to a disqualifying prejudice that the trial court may

legitimately doubt the avowals of impartiality made by the remaining jurors." United States v.

Rodriguez-Cardona, 924 F.2d 1148, 1158 (1st Cir. 1991); See Skilling v. United States, 130 S.Ct.

2896, 2913 n.11, 177 L. Ed. 2d 619 (2010) (noting that pretrial publicity is prejudicial to a

defendant where the conviction was "obtained in a trial atmosphere that was utterly corrupted by

press coverage.") (quotation marks omitted). Since the question of juror disqualification is

premature at this juncture, Defendant Tazhayakov‘s request for a change of venue is addressed to

the first prong of this criteria.

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1. Inflammatory Publicity

A factor considered by courts in assessing whether to apply a presumption of prejudice is

whether the news reports contained a ―confession or other blatantly prejudicial information of

the type readers or viewers could not reasonably be expected to shut from sight.‖ Skilling, 130

S.Ct. at 2916. As in any newsworthy case Mr. Tazhayakov is faced with the problem that the

media recite the allegations of the criminal complaint as though it is indisputable fact and

currently, defense counsel is prohibited from commenting publicly on the testimony of any

particular witness. Thus, the public has uniformly been exposed to the Government‘s version of

the case, tainted by inflammatory public opinion, including purported admissions of the

defendant(s) which have yet to be challenged at a suppression hearing. Here, copies of the initial

Criminal Complaint, Superseding Indictment and Affidavit in Support of Arrest Warrant(s) are

readily available on-line, both in isolation and contained within articles where the defendants are

mentioned. Likewise, so are their purported statements, admissions and arguable motivations for

committing the offenses alleged. Within this framework, the defendants‘ statements are likely

imprinted indelibly in the mind of anyone who read, or commented upon them.

Inflammatory publicity which leaves an imprint has been found in certain sensational

cases. In Rideau v. Louisiana, 373 U.S. 723, 10 L. Ed. 2d 663, 83 S. Ct. 1417 (1963), for

example, the Supreme Court reversed a conviction based solely on the egregiousness of pretrial

publicity and without specific proof that the jurors who sat -- or the trial itself -- were prejudiced

thereby. Rideau involved a defendant, Wilbert Rideau, who robbed a bank in Lake Charles,

Louisiana, kidnapped three of the bank's employees, and killed one of them. After defendant was

apprehended, he confessed on film to having committed the crime. On the day he confessed and

each of the next two days, a Lake Charles television station aired the film, reaching anywhere

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from one-third to two-thirds of the community's population. Following his arraignment, Rideau

moved for a change of venue, which the state trial court denied. Rideau was subsequently

convicted and sentenced to death.

The Supreme Court overturned the conviction, holding specifically "that it was a denial

of due process of law to refuse the request for a change of venue." Id. at 726. The Court reasoned

that given the tens of thousands of people who saw the detailed confession, "any subsequent

court proceeding in a community so pervasively exposed to such a spectacle could be but a

hollow formality." Id. The Court presumed prejudice, finding it unnecessary to review the

transcript of the voir dire or to take any other step to ascertain the effect the televised confession

had on community sentiment.

Presently, the defendants are claimed to have made a series of statements in the nature of

admissions, to the crimes with which they are charged. Information concerning defendant

Phillipos‘ having ―failed‖ a lie detector test has also found its way onto the internet. These

statements have been published in all forms of traditional and social media; they are readily

available to the public to download, print and critique as it sees fit. Further, the reach of these

statements expands far beyond this jurisdiction‘s local boundaries. The reporting is international

in scope, and not surprisingly has drawn comments from citizens as far away as Kazakhstan, of

which defendants Kadyrbayev and Tazhayakov are both nationals.

In weighing whether to apply a presumption of prejudice, courts also consider the timing

of the publicity and whether ―trial swiftly followed a widely reported crime.‖ Skilling, 103 S.Ct.

at 2916. In Skilling, the Supreme Court noted the four years that had elapsed between Enron‘s

bankruptcy and Skilling‘s trial. Although there was news coverage throughout the period, ―the

decibel level of media attention diminished somewhat in the years following Enron‘s collapse.‖

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Id. at 2916. Here, trial will take place within 3 months of the one-year anniversary of the

bombings. Indeed, within the last week, renewed media fervor has been seen. A review of the

press coverage of this case indicates that it has never really peaked, unlike in Enron; there

continue to be news accounts of court proceedings and filings. Skilling then, offers little

guidance, and should be distinguished.

Normally, the guilt or innocence of the accused, or the heinousness of the offenses

charged, should be irrelevant to the issue of whether they are entitled to, and receive, a fair trial.

However, it is when there are charges of opprobious crimes that courts are required to exercise

heightened sensitivity to an accused's need for protection against undue pretrial publicity. See

Coleman v. Kemp, 778 F.2d 1487 (11th Cir. 1986), cert. denied, 476 U.S. 1164, 106 S. Ct. 2289,

90 L. Ed. 2d 730 (1986); Delaney v. United States, 199 F.2d 107 (1st Cir. 1952). If inflammatory

publicity is found where a confession is aired, as in Rideau, then a similar finding is required

here given the wide-spread dissemination of the statements attributed to each defendant from the

moment the initial complaint was published. Further, the psychological impact of having the

instant offenses so closely tied to the acts of domestic terrorism from which it stems calls

vociferously for this Court to be particularly mindful of the risk that defendant Tazhayakov‘s

right to a fair trial may be jeopardized.

Alleging that a defendant has ―admitted‖ to committing a crime of obstruction in an

investigation involving an act of domestic terrorism resulting in the loss of life and extensive

property damage, coupled with the repeated and prolonged availability of that statement,

admission or confession must be deemed ―sensational.‖ It would not be surprising to see public

reminders of those statements as the trial date for these defendants draws nearer. To that extent,

potential jurors would have been inundated with, and overwhelmed by, these details over the last

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12 months.

2. Saturation Within the Community

Within this Circuit, Courts have indicated that to presume prejudice from pretrial

publicity, the materials "must be both extensive and sensational in nature." Misla-Aldarondo,

478 F.3d at 58 (quoting United States v. Angiulo, 897 F.2d 1169, 1181 (1st Cir. 1990)). As

discussed earlier, the sheer volume of information concerning the bombings generally, and the

purported role(s) and motivations of the defendants herein exceed the ―extensive‖ nature of the

pretrial publicity.

It would be shunning reality not to recognize that the Marathon Bombing events were

followed by a deluge of publicity which has yet to abate, particularly in the Massachusetts area.

In the face of overwhelming and non-ending publicity, a change of venue was found appropriate

in United States v. Moreno Morales, 815 F.2d 725, 755-756 (1st Cir. P.R. 1987) (concerning

media attention which went on for years surrounding the shooting death of two men, both of

whom were members of the Puerto Rico independence movement (independentistas),who had

gone to a mountain site in Puerto Rico known as Cerro Maravilla, apparently intending to blow

up or otherwise sabotage a television tower located on the mountain). Since the April 15, 2013

bombings the press, radio and television coverage, heightened by internet activity, has had the

cumulative effect of making this incident the media event of the year. Given that the defendants

here are scheduled to begin trial in approximately eight (8) weeks, the likelihood of increased

media coverage and accompanying negative internet activity is reasonable to anticipate.

The Government may attempt to suggest that there is consolation in that the vast

majority of the publicity has been about the bombing and Tsarnaev‘s involvement therein, with

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less publicity that specifically mentions defendant Tazhayakov (or his co-defendants).

Admittedly, "[W]hen publicity is about the event, rather than directed at individual defendants,

this may lessen any prejudicial impact." Skilling, 130 S. Ct. at 2916 n.17 (internal quotation and

citation omitted). This argument fails because here, references to the bombing have

automatically included mention of Tsarnaev. As defendants Tazhayakov and Kadyrbayev are

claimed to have been close friends with him, and alleged to have covered up physical evidence

of his destructive acts, they are necessarily implicated by reference. Though not joined in

Tsarnaev‘s indictment, defendant Tazhayakov has become ―part and parcel‖ of the more

egregious offense. Therefore, the prejudicial impact from media reports is not substantially

mitigated, and Skilling can be distinguished on that basis.

With the defendants‘ trial date less than two months away and within fourteen months of

the horrific incident, the Boston community will not have had adequate time for such passions to

cool. Quite simply, the present controversy possesses the requisite extensive "pretrial publicity"

and "inflamed passions" of such a pervasive and sensational nature as to produce prejudice in

June of this year.

Further, the Government may direct the Court‘s attention to other districts where judge‘s

have rejected change of venue motions in terrorism cases and other high-profile trials, including

the two trials arising from the1993 World Trade Center bombing, even where the pretrial

publicity had been extensive and adverse to the defendants. United States v. Salameh, 1993 WL

364486 (S.D.N.Y.September 15, 1993) (denying change of venue from New York City in 1993

bombing of World Trade Center); United States v. Yousef, 1997 WL 411596, at *3 (S.D.N.Y.

1997) (denying change of venue for Ramzi Yousef, accused of masterminding 1993 WTC

bombing); United States v. Salim, 151 F. Supp. 2d 281, 284-285 (S.D.N.Y. 2001) (denying

Case 1:13-cr-10238-DPW Document 133 Filed 04/18/14 Page 17 of 21

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change of venue to an alleged al Qaeda terrorist charged with stabbing a correctional officer in

the eye), and the prosecution of JohnWalker Lindh, United States v. Lindh, 212 F.Supp. 2d 541,

549-551 (E.D.Va. 2002); see also,United States v. Zacarias Moussaoui, Crim. No. 01-455-A,

Docket entry June 25, 2002, E.D.Va., those cases are distinguishable. In each, the defendants had

irrefutable ties to known terrorist organizations, and the acts of terrorism performed were done

so with the intention of waging a holy war upon the United States as a whole by striking at its

symbols. Presently, the marathon bombing was committed by two unattached, disenchanted

individuals apparently intent upon inflicting gratuitous, albeit grave injury, to a local population.

Trust in jurors‘ ability to be fair ―diminishes when the prior exposure is such that it

evokes strong emotional responses or such an identification with those directly affected by the

conduct at issue that the jurors feel a personal stake in the outcome.‖ United States v. McVeigh,

918 F. Supp. 1467 (W.D. Okla. 1996), at 1471. In that case, in which the Murrah Federal Office

Building in Oklahoma City was bombed, the district court granted a change of venue, finding

that a number of factors supported a change of venue from Oklahoma to Denver. Considered

were that: (1) over time, ―differences developed in both the volume and focus of the media

coverage in Oklahoma compared with local coverage outside of Oklahoma and with national

news coverage‖; (2) ―[t]he Oklahoma coverage was more personal, providing individual stories

of grief and recovery‖; and (3) ―the ‗Oklahoma family‘ has been a common theme in the

Oklahoma media coverage‖ and the political leadership of the state proclaimed ―to the nation and

the world that the survival and recovery from this tragedy is ‗Oklahoma‘s story.‘‖ Under those

facts, the Court concluded that the pretrial publicity created such a strong emotional and

community response that Oklahoma jurors would feel a personal stake in the outcome. McVeigh,

918 F. Supp. at 1473.

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At minimum, second and third factors supporting that decision are present to an equal

degree, when applied to the circumstances surrounding this case. One need only acknowledge

the catch-phrase ―Boston Strong,‖ and its message of the care, helpfulness, and camaraderie its

residents all showed one another, to understand how deeply Bostonians identify with the

marathon bombing.8

These criteria for finding that a change of venue is warranted are amply met in this case.

The publicity surrounding this case, and particularly the extensive reporting, opinions and

editorials published by the media and the internet blogs have focused on Mr. Tazhayakov and the

other Defendants with nearly equal hostile fervor to the attention paid Dzhokhar Tsarnaev.

Rather than isolating the circumstances of the offenses with which Tazhayakov is alleged to have

committed, they have been merged, and become psychologically identical with Tsarnaev‘s

crime—the bombing itself.

While the Government might argue that much of the publicity has been generated by

outside ―fringe‖ sources, the simple fact remains that the pretrial publicity has already reached a

hostile atmosphere. The Defendant would assert that basically every person in Boston and

Massachusetts with a television or device with internet accessibility, knows about this case, and

treats it by extension, as the actual ―Marathon Bombing Case,‖ despite the fact that Defendant

Tazhayakov is not charged therein.

This Honorable Court, under the facts and the law, should presume a biased jury pool,

whereby the setting of the trial is inherently prejudicial. See Murphy v.Florida, 421 U.S. 794,

798(1975). A most significant factor in this case concerns the trial – and particularly the

8 ―Boston Strong is about the triumph of community,‖ Gov. Deval Patrick said on the anniversary of the marathon

bombings. See also, Lou Dubois, NBCNews, One Year Later, #BostonStrong Remains City's Healing Cry, available

for viewing at http://www.nbcnews.com/#/storyline/boston-bombing-anniversary/one-year-later-bostonstrong-

remains-citys-healing-cry-n80801.

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deliberations of the Jury – itself. As a consequence of the inflammatory publicity in this case,

significant segments of this community have likely taken clear and entrenched positions about

the guilt or innocence of Mr. Tazhayakov because of his consistent inclusion with Dzhokhar

Tsarnaev, accused of actual bombing. And many, in the media, on the internet, and in the

community have tagged Mr. Tazhayakov guilty by association, regardless of his non-existent

role therein.

Any Jury that could be seated from this community will be subjected to enormous and

conflicting pressures from this community. These pressures will necessarily invade and infect the

deliberations in this case, whether it be as a consequence of the media or community opinion and

discussion. Indeed, there is very little prospect of a Jury deliberating in an atmosphere that is free

from outside influence and pressure. Sheppard v. Maxwell, 384 U.S. 333, 362 (1966) (―Due

process requires that the accused receive a trial by an impartial jury free from outside

influences.‖)

Undoubtedly, a significant segment of this community‘s population openly embrace the

inaccurate versions of the events surrounding the offenses with which Mr. Tazhayakov is

charged. The Defendant is not charged with the bombing yet he has been included in the

publicity surrounding the Defendant who is accused. Moving this case to another community

will remove each of these outside influences from any role in the deliberations of the Jury. Trial

in another jurisdiction, by residents therein, would also eliminate any potential influence on –

or even action against – jurors returning to their community and explaining their verdict.

This case before 12 members of a different community and in a different place is

warranted. In that way, all parties will be assured that the verdict reached will be the result of the

evidence and rule of law, uninfluenced by outside or community pressures.

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Conclusion

For the foregoing reasons, this case should be transferred to a more neutral location

pursuant to Fed. R. Crim. P. 21(a). In the event that this Court is inclined to do so, Defendant

Tazhayakov through counsel, respectfully requests the right to be heard at such time, concerning

the appropriate location. In order to forecast Defendant‘s argument, transfer will be sought to a

district outside of the State of Massachusetts.

Dated: April 18, 2014

Respectfully submitted,

/s/ Nicholas Wooldridge

________________________

Nicholas M. Wooldridge, Esq.

Bukh & Associates, PLLC

1123 Avenue Z

Brooklyn, New York 11235

(718) 376-6466

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CERTIFICATE OF SERVICE

I hereby certify that on this 18th

day of April, 2014, I served a copy of the foregoing MOTION

FOR CHANGE OF VENUE and MEMORANDUM IN SUPPORT on the Assistant United

States Attorney John A. Capin, Robert Stahl, counsel for Dias Kadyrbayev, Derege B. DeMissie

and Susan B. Church, counsels for Robel Phillipos, be means of e-mail.

/s/ Nicholas M. Wooldridge, Esq.

________________________

Nicholas M. Wooldridge, Esq.

Attorney for the Defendant

Case 1:13-cr-10238-DPW Document 133-1 Filed 04/18/14 Page 1 of 1