Who Killed Sean Collier? Part Two: The Gun – Continued

(This is a continuation of a study about the Ruger P95 that killed Officer Collier. Please read the first installment here if you haven’t already before moving on.)

Exh-948-231-large
Exhibit 948-231 – The Ruger as it was found at the crime scene in Watertown.

Recap: Finding Howie

When we last left off, I was trying to trace the chain of custody of the Ruger P95 that killed Officer Sean Collier. Unsatisfied by the vague, inconsistency-ridden testimony of Dzhokhar Tsarnaev’s friend Stephen Silva, my father and I hoped to find the enigmatic “Howie,” the only name given to the friend Silva reportedly obtained the gun from. It took a few months for us to learn Howie’s identity: Merhawi Berhe, a young man who had pled not guilty to possessing the gun and made bail at the exact time Stephen Silva, one floor down, was testifying at Dzhokhar’s trial that Howie was the source of said weapon. It wasn’t until a year later, in March of 2016, that he changed his plea to guilty, and thanks to a Google news alert, I heard about it.

This threw me for a loop. I grilled my dad for details, to see if he had any insight into why something like this would happen. I knew that in the US legal system, pleading guilty or not guilty doesn’t always have direct bearing on a person’s actual innocence. Just because Howie pled not guilty doesn’t mean he had nothing to do with possessing the Ruger. What was strange, however, was why the federal prosecutors went after him right when it would be pertinent for Dzhokhar’s trial: on March 10th, 2015, when the indictment was signed, the prosecution was only a week into their case during the guilt phase. The timing suggested that Howie was wanted as a corroborating witness for Stephen Silva, who would be testifying the following week.

“He could have gotten the same deal Silva did,” my father said. “That’s how this stuff works. They bring in these people to testify in another case and cut them a sweetheart deal. He’s exactly the kind of witness I would have wanted if I had been the prosecutor.”

That left the likelihood that Merhawi Berhe was in a similar position to Dias Kadyrbayev, who also could have testified but, seemingly inexplicably, didn’t: offered a deal in exchange for his testimony, but refused to take it. However, at least if this did happen in Dias’s case, if he did have knowledge of Dzhokhar and the Ruger, one could argue that perhaps a sense of loyalty to his friend prevented him from testifying. The two were close, and it’s already known that Dias willingly removed evidence that potentially implicated Dzhokhar. However, I’ve been able to find no indication that Howie and Dzhokhar ever knew each other. Howie certainly owed this stranger, purported to be a ruthless terrorist, nothing. Why risk longer prison time to protect someone he’d never met? If Howie was guilty, the time to plead and make a deal was then, not a year later when Dzhokhar’s trial was already a distant memory. According to my father, any defense attorney worth his or her salt would advise cooperating with the government in a situation like that.

Unless, of course, the client is maintaining his innocence, in which case not only is perjury — lying under oath — a felony on the part of the client, but allowing it to happen is a felony on the part of his legal counsel. If an attorney knows flatout his client would lie on the stand, the lawyer cannot advise him to go through with it, or else he also risks legal repercussions upon its discovery. The fact that Howie quietly pled guilty a year later was suspicious to both my father and me. Probably, my dad said, a trial date was coming up, and the likelihood Howie could get a fair trial in Boston was nil after the fiasco that was Dzhokhar’s. At that point, having Howie plead guilty and throw himself on the mercy of the Court was probably the lesser of two evils.

The possibility filled me with outrage. “If that’s true, then that means Howie is one more kid who’s had his life ruined by all this.” A felony record, even for a low level crime, is no picnic in America. It limits work and school opportunities; it keeps you from jury duty and in some cases, restricts voting rights. Howie might be getting off comparatively easy, but that means little when the sliding scale of severity starts at Dzhokhar’s death sentence.

My dad was more cautious, as he usually is. “We still don’t know much about Howie. Maybe he did have the gun. He could be a drug-dealing scumbag for all we know.”

“He could be,” I said, “but I’ve seen no evidence of that so far.”

I had checked, and Howie had no priors in federal court. Court documents list his date of birth as 1994 — actually a year younger than Dzhokhar and Steven Silva, and he would have been 18 in 2012 when he possessed the gun. Perhaps, however, juvenile records were sealed, and it’s much harder to pull arrest records on the state level in Massachusetts. Still, I had seen a clip of him leaving the courthouse: he looked like a small, skinny kid, shying away from the prying gaze of media cameras.

howie
The only photo I’ve found of Merhawi Berhe, leaving the courthouse in March 2016 with an unidentified female.

Howie didn’t seem like the sort of person who would harbor a gun with an obliterated serial number, but then neither did Dzhokhar. I even had doubts about Stephen Silva, despite the crimes — real or imagined — he had admitted to. Until several months after Dzhokhar’s arrest, he had only been selling marijuana, which is both a common and a decriminalized drug in Massachusetts: one can possess up to an ounce and only incur a $100 fine. There was no physical evidence to suggest Silva was also running guns. In fact, according to his testimony, it was complete luck that he’d gotten the Ruger in the first place.

Unfortunately, despite these suspicions, there was limited information I could obtain about Howie until his sentencing. At the time of his plea in March, the sentencing was scheduled for June. It was then delayed even further, to July 26th, which is partially responsible for the long wait for this study of the Ruger. I didn’t want to post anything about Howie without having all the available information, as so much in this leg of the investigation hinges on him.

So I let the Howie stuff lie. In the meantime, I would have to see what else I could do to find the origins of the Ruger.

Chasing the Chain of Custody

For that, I would have to go outside the admitted evidence at Dzhokhar’s trial. The testimony I dissected in the previous post is all that was addressed about the gun. After the entire exercise, I could only trace its movement from Dzhokhar to Silva, then from Silva to Howie — and Howie seemed to have refused to testify to confirm that link in the chain.

Furthermore, although the prosecution never committed to this, if one considers all the facts in evidence, it’s quite clear the Ruger was in Tamerlan Tsarnaev’s possession the night of April 18th, 2013. As discussed in the first post in this series, his were the only prints found on the gun, and he confessed to the carjacking victim, Dun Meng, that he had just killed a police officer in Cambridge. The Ruger itself was recovered at the scene of the Watertown shootout. According to government testimony from Sergeant Jeffrey Pugliese of the Watertown Police Department, he confronted Tamerlan, who was firing the Ruger at him. Prosecutor Aloke Chakravarty leads the questioning about the logistics of that gunfight:

Q. Okay. And so on this diagram, can you draw where Tamerlan Tsarnaev was shooting at you?
A. As I say, he left his position of cover here, ran up the sidewalk here, and came in — there’s a chain-link fence. I don’t see it depicted on this map. But he stopped about there, and once again, I was right about there (indicating).
Q. So you’re — right face-to-face with each other?
A. We’re about six feet, maybe eight feet at the most apart from each other.
Q. And did you continue to shoot at him?
A. As he was advancing towards me and firing, I was returning fire, yes.

Q. And what did he do?
A. He continued to fire at me. Ultimately, he had a problem with his pistol. I don’t know if it jammed or he ran out of ammunition. He kind of just looked at his gun, he looked at me, we looked at each other, and I think out of frustration he threw his gun at me. It hit me in my left bicep and the gun fell. (21-23)

Considering this evidence, despite what they presented to the jury about the Ruger, the prosecution’s chain of custody actually looks something like this:

RugerChainofCustody4

Merhawi Berhe is the originator of the gun in the prosecution’s theory of the case. He needed someone else to hold it, according to Stephen Silva’s testimony, because his mother was going to search his room and find it. Silva lent it to Dzhokhar because, allegedly, Dzhokhar wanted to commit a robbery with it. There’s no evidence Dzhokhar ever did that. Instead, somehow in between February and April 2013, the Ruger got to Tamerlan.

In fact, during the penalty phase, the defense offered evidence that on March 4, 2013, Tamerlan visited websites related to handguns and, specifically, the Ruger P95, which is visible on the top of the gun. (A detail, in fact, that Stephen Silva never pointed out at trial, despite claims he knew the gun well. Oddly, he actually got the name backward, calling it a “P95 Ruger.”)

Exh 930-13-08140 rush 023-closeup
A close up of the Ruger’s name on the gun, taken from Exhibit 930.

During direct examination of witness Mark Spencer, the president of a digital forensics consulting firm, defense attorney William Fick pointed out that the web history of Tamerlan’s laptop showed evidence of the following:

Q. And just paging through, for example, to page 151 of the history, can you just read the search — or not the search terms, but the page titles for like the first two of those items here on the screen?
A. “Browning hi-power pistols, firearms, product family.”
Q. And can you read the very last one through down at the bottom?
A. “P95 Ruger detail, strip and info, YouTube.”
Q. And then on the next page of the exhibit, read those two search terms for March 4th — or not search terms, but those two page titles for March 4th, 2013.
A. “Ruger P95 problems, YouTube”; “Ruger P95 review, YouTube.” (47-48)

It stands to reason, therefore, that Tamerlan either had or anticipated to have the Ruger in his possession by March 4th. But because the prosecution never established a clear timeline of Dzhokhar’s visits to and from campus during the 2013 spring semester, it’s difficult to say when he could have met with Tamerlan to make this transfer. The only time they are definitively shown to be together is March 20th at a New Hampshire shooting range, which fell during the week Dzhokhar was on spring break. However, since they rented two handguns for that excursion, it indicates the Ruger never came into play at all, and can prove nothing about who had it when.

In addition, the prosecution never addressed the necessity that Dzhokhar would have had to physically hand over the Ruger to Tamerlan at some point, whether willingly or unwillingly. Because of this, there are conveniently no known witnesses to the transfer. If it happened at home, did Tamerlan’s wife maybe see it? Tamerlan also spent time with other people. Perhaps he complained to friends that he discovered a gun in his kid brother’s car and promptly confiscated it, angry about the mischief Dzhokhar was getting into?

There’s nothing like that presented, or even hinted at. It’s as if the prosecution expected us to believe that Dzhokhar and Tamerlan existed in their own little jihadist bubble, completely insulated from the outside world. This was asserted even though there was no evidence they spent much time together, nor that they communicated excessively or surreptitiously with each other — even when Dzhokhar’s main residence was at UMass Dartmouth, well over an hour away from Cambridge. In addition, the government often flipped the script on this conspiracy idea, claiming that Dzhokhar’s “independent” role was “significant” every time the defense offered evidence that the attacks were devised, prepared, and directed by Tamerlan. The prosecutors tried so hard to have it both ways in a situation where logically, only one or the other was possible. Either the brothers conspired closely or they didn’t. Terrorism isn’t the kind of crime one stumbles into in lackluster fashion because there was nothing good on TV that day.

Therefore, all of the prosecution’s asserted links in the chain of custody are dubious, either established by one unreliable witness without corroboration, or never addressed at all, despite evidence dictating that it must have happened. My attempt to trace the Ruger backward from its final resting place on a Watertown street just wasn’t working.

Instead, I decided to start at the opposite end of the chain: the beginning.

Once Upon a Time in Maine

For that, I would have to find an old article I only vaguely recalled reading sometime back in 2014, before Stephen Silva appeared to provide the story about the Ruger’s origin. In fact, during the trial, I was confused because I had read this article, but the prosecution made no effort to link up Silva’s testimony with what I thought had been established fact. Unfortunately, I could remember only scant scraps from the article, because when I had read it I’d had no idea that a couple years later I’d be involved in the case myself. I couldn’t even recall what newspaper it had been in.

However, I was certain about two details: it had traced the Ruger P95 that had killed Sean Collier to a drug gang in Maine, and authorities were interested in whether Tamerlan Tsarnaev had any ties to them. I was surprised that at trial, no mention was ever made about this, especially since adding the middle man of Dzhokhar seemed to contradict the leads law enforcement had been pursuing at the time. In the early stages of the investigation, it seemed well-established that the Ruger was Tamerlan’s. When news of Stephen Silva’s arrest for connection to the gun surfaced, it had been jarring to me how suddenly the focus shifted to Dzhokhar. It wasn’t until the last several months, when I began studying Collier’s murder in earnest, that I realized how important it was to the prosecution’s case that Dzhokhar possessed the Ruger, whether or not it eventually migrated to Tamerlan.

When I visited my parents in June, my father and I spent time together working on the research portion of this installment. We had several loose threads at that point: Silva’s nebulous testimony, the Howie mystery, and my dim memories of a Maine-based gang in the mix somehow. Honestly, I was worried I had dreamed the Maine story, since it had never come up again in subsequent news articles and certainly not at trial. Thankfully, even if it was just a phantom, my dad was still interested.

“I’d really like to read that article,” he said. “See if you can find it.”

So I tried to track it down again. With a couple creative Google searches, it wasn’t that difficult. It was a Los Angeles Times article, published on May 12, 2014 — two months before Stephen Silva’s arrest.

tamerlanheadline

I hadn’t been imagining it. My dad and I scanned the article, and it was all there: the names and players of the gang, how the Ruger had fallen into their hands, and that law enforcement was interested in connecting them to Tamerlan.

Finally, Dad spoke. “There’s no mention of Dzhokhar here at all.”

“Nope,” I said. “There sure isn’t.”

An Uncomfortable Implication 

My purpose in running this blog — a research project, as I’ve come to call it — always has been and continues to be about Dzhokhar. It’s his story that interests me, and the injustice he suffered by not being able to tell it correctly is my driving force. I wanted to understand his role in this historical tragedy, and not have it overshadowed by the government, the media, or even his own brother. It has always been entirely too easy to lump Tamerlan and Dzhokhar together as one and hold them equally accountable for the crimes. It’s my goal to separate them, to let Dzhokhar stand on his own two feet and be his own person. I want to weigh the facts based on him and him alone.

On the contrary, it is not my goal to condemn or exonerate Tamerlan. He was never the one on trial, and trying him in absentia is a fruitless exercise: nothing I learn or report will ever bring him back to life. I understand that he too was someone’s son, brother, husband, father, and friend, and I’m certain the void left behind is painful enough without adding in the terrible legacy of public opinion. To that end, I’ve felt uncomfortable even considering a dive too deep into Tamerlan’s side of the story, because he will never be able to come to his own defense, and that, somehow, feels innately unfair.

However, the problem I’ve run into is this: after well over a year of research into the case, all roads keep leading back to Tamerlan. I can tell Dzhokhar’s story all I want, but without Tamerlan, nothing actually gets explained. Even after all the thousands of words I’ve spent trying to map out the chain of custody of the Ruger, without Tamerlan, all I have is the likelihood that in early 2013, a nineteen-year-old student never had a gun. That’s not a narrative. That’s the status quo of most of the college kids in Massachusetts.

So I’ll have to use Tamerlan as a tool in this story, not as a scapegoat or a villain, but as the inciting incident: he is the basis from which all of this stems. And, frankly, if the prosecution was allowed to use Tamerlan to convict Dzhokhar, I should be allowed to use Tamerlan to defend him — the very thing that could have saved him at trial, had his lawyers not been barred from doing it.

With all this in mind, let’s address a reality that has become clearer and clearer the more I have researched this case: Dzhokhar and Tamerlan Tsarnaev led rather separate lives. This isn’t an unlikely phenomenon, either. There were seven years and two sisters between them. Tamerlan was married with a daughter. Dzhokhar had moved to college in 2011 and was only home for holidays and the summer, as far as I can tell. In January 2012, Tamerlan went to Russia for six months, and according to defense testimony, barely communicated with Dzhokhar during that time. Once Tamerlan returned in late July, only six weeks later Dzhokhar was back on campus. They just weren’t around each other that much. Again, they didn’t seem to arrange any clandestine meetings, nor did Dzhokhar disappear excessively off-campus where friends couldn’t find him. All the hallmarks of a conspiracy, even between people as closely related as brothers — it just isn’t there.

Which is why I wasn’t surprised to learn that when law enforcement was looking to the Maine gang as the provider of Sean Collier’s murder weapon, Dzhokhar didn’t even come into the picture. Because at that point, since the gun was clearly Tamerlan’s, there was no reason to think Dzhokhar had ever possessed it. Their paths crossed so rarely before that awful Monday in April. And if that’s obvious to me, a civilian, it should have also been obvious to law enforcement working the case.

Until the prosecutors needed Dzhokhar to have the gun in order to convict. Then suddenly came Stephen Silva, putting the Ruger in Dzhokhar’s hands, and the Maine narrative vanished.

Trust But Verify

My dad and I discussed the details in the LA Times article, and tried to decide how much could be considered reliable, since none of it had made it to the record at trial. Initially, my dad was concerned about bringing in outside information, since the first rule of a court case is that an attorney can only argue facts in evidence. However, since I thought this might constitute new evidence, we decided to vet the information. The newspaper is certainly reputable. When I looked up the article’s author, Richard A. Serrano, I learned he has been a long time reporter on matters of terrorism and national security. In the 90s, he wrote a book on the Oklahoma City Bombing, and shared in three Pulitzers for his work covering the San Bernardino attacks. This impressed us both.

“This man is a seasoned professional,” Dad said. “He wouldn’t just make all this up.”

I agreed. Even the level of detail in the article commanded authority:

The tale of that handgun, a black Ruger P95, Serial Number 317-87693, offers new insights into the Boston tragedy and holds warnings of other potential dangers.

Its journey from a street gang that peddled crack cocaine in Portland, Maine, to the grisly shootout in a Boston suburb tells much about illicit drug and gun trafficking in New England, and perhaps more about Tsarnaev.

Authorities believe Tsarnaev’s ties to the illicit drug trade in Maine helped finance his six-month trip to the southern Russian republics of Chechnya and Dagestan in early 2012, where he became radicalized. Drug money, they say, also may have helped him buy components of the bomb that killed three people and injured more than 260 on April 15, 2013.

No mention of the serial number being recovered from the Ruger was ever brought up at trial, and yet here was the exact number in print. My dad had been saying it was possible for law enforcement to pull serial numbers from guns that had filed them off. If they’d done this, they could trace where the gun had been manufactured and its last legal sale, and according to the article, it seemed like they had.

Additionally, the information that Tamerlan had been stockpiling bomb components in the months before the bombing did come into play at trial, but only in the form of vague assertions from the prosecution that Dzhokhar could have been involved in the purchases, despite the stores being located north of Boston at a time when Dzhokhar was far south at UMass Dartmouth. The prosecution never tried to explain where funding for these purchases came from, but I always suspected it couldn’t have been Dzhokhar. For starters, his marijuana business didn’t seem to be a terribly lucrative enterprise. At the time of his arrest, he’d had $952 in his bank account, despite having few expenses: he was on student loan money and lived on campus. Ostensibly, the only payments he would have to make were probably for food if he didn’t want to use the dining hall — testimony at trial indicated Domino’s was a favorite — gas, and perhaps to pay for those times his car broke down.

On the other hand, Tamerlan had rent to pay in an expensive city, a small daughter to provide for, and evidence at trial showed he had wired $900 to his mother in Dagestan the day before the bombing. This may have been a regular occurrence, as it is common for immigrant families who live apart like this to support each other. Yet, Tamerlan’s wife had a job as a home care aid, but he was a stay-at-home dad. That’s a lot of expenses to cover when a family has only one income, especially in a place as high-priced as Cambridge. And then there’s how he could afford a trip to Russia for six months where, it seemed, he didn’t work either. I can certainly understand why law enforcement would be interested in finding out more.

As Dad and I kicked around thoughts about the implications of this article, we thought it would be helpful if we could get verification about where Mr. Serrano had gotten his information. The best way to do this would be, of course, to speak to him directly.

At the end of June, after a couple of inquiries, I succeeded in contacting him via email. He was extremely nice and willing to talk to me about the case. He confirmed right away that his source was legitimate:

The law enforcement documents obtained regarding the Ruger used by Tamerlan in the Sean Collier homicide and the Boston shootout with police were traced back to drug gang members in Portland, Me.  There is no doubt about that.

It turned out Mr. Serrano had also covered Dzhokhar’s trial, and we compared notes. He had some insight as to why these links in the chain of custody were never provided in the courtroom:

Unfortunately, the judge did not allow much if any evidence/testimony regarding Tamerlan. For the government, that was a win, because they wanted to keep the focus on Dzhokhar. He was on trial; not his dead brother. So it was never cleared up for certain whether the gun was obtained by Dzhokhar or Tamerlan. But it’s pretty clear that Tamerlan was the one who used it, even though jurors may have come away thinking it was Dzhokhar’s gun.

I’m apt to agree. As I’ve said, it’s becoming harder and harder to properly explore Dzhokhar’s role in the case without bringing up Tamerlan. When I envision the version of events the jury must have seen, I feel as though I’m looking at a painting that has all but the smallest, most minor details covered up so that the viewers can’t make sense of what’s in front of them. Since day one I have considered Judge O’Toole’s ruling that the defense could not use Tamerlan unfairly advantageous to the prosecution. In this instance, however, the obfuscation isn’t simply unfair: it may now be actively excluding pertinent evidence. How could the defense ever contest where the Ruger came from if they couldn’t introduce documents that dealt solely with Tamerlan? Did they know about these documents but couldn’t use them, forced only to cross-examine Stephen Silva instead?

I’m not sure, but the very idea is an unsettling one.

A Chilling Silence in the Courtroom

I do know for certain the defense team fought the government’s motion to exclude Tamerlan. In a transcript of a pretrial motion hearing on March 2, 2015 — two days before opening arguments — they presented their objections to the prosecutors’ proposition that Tamerlan be exorcised from the guilt phase. Defense attorney David Bruck states:

What the government is actually asking for is to sanitize the liability phase evidence of any fact which places any part of the defendant’s side of the story into evidence so that the jury will have for six weeks or two months or however long it takes a completely distorted, one-sided and unrealistic picture of the defendant’s culpability and of his role in this case.

This is a conspiracy case, and the notion that in a conspiracy prosecution the defense is not allowed to present through argument, evidence — on cross-examination or perhaps even evidence information about the relationship between the two alleged conspirators is, to say the very least, a novel proposition. And it’s not surprising that Mr. Chakravarty’s been unable to find a single case standing for that prosecution. (8)

That’s right. Not only has something like this never been granted in an American court of law, according to the defense team’s research, it had never even been proposed by a prosecutor in a criminal trial before this.

And why should it? What is normal about denying a defendant the right to tell his side of the story, or to contest the government’s version of events? That goes against the very fundamentals of due process. Mr. Bruck explains:

The government’s problem with respect to the death penalty, that they’ve also known since the very beginning of this case, is that the lead conspirator, the person who started this whole thing, and but for whom the Boston Marathon bombing would never have occurred, was the older brother who’s dead, and the defendant is the teenaged younger brother. And that presents a logical issue, a problem for the government’s request for the death penalty.

So their response is to file this unprecedented motion to present the defendant’s liability in artificial isolation in the hopes that by the time we get to the penalty phase, as the government knows we will, in six weeks or two months or however long it takes, the jury’s concept of Jahar Tsarnaev’s individual personal blameworthiness and responsibility and role in the offense will be completely distorted and will have set in like concrete and it will be impossible, or very difficult, for the defense by presenting the real facts of this story then to change the jury’s mind. (9-10)

This is absolutely consistent with what happened. Every day I left the courthouse during the defense’s case in the penalty phase, I would call my dad for an update. I was very upset, having been hit with the full force of the actual facts. I had a growing certainty in me that despite the phrasing the defense used —  as called in the March 2nd hearing, “the defendant’s domination by, love for, adoration of, submissiveness to, whatever, his older brother”(10) — what I was really seeing was proof that Dzhokhar would never in a million years have been involved willingly. I would repeat, over and over, “I wish I had known this in the guilt phase. Why didn’t they present this then, when it could have mattered?”

Dad agreed, saying this was relevant evidence that spoke to culpability, and should have been admitted before the guilt verdict had to be determined. Unbeknownst to us, two months earlier, Mr. Bruck was lamenting being forbidden from doing this very thing.

And the idea that the Court should somehow police the evidence so as to allow the government to put every bit of their — or almost every bit of their case on … aggravation into the guilt phase, but the moment we try to respond, whether in argument or cross-examination or in any other way, the boom comes down, they object and we have to sit back down and pretend that there’s nothing to be said, well, it’s not surprising that no motion like this has ever been filed, let alone granted. And that’s why Mr. Chakravarty can’t find any case law on it. This would, to say the least, be breaking new ground, and it’s ground that shouldn’t be broken. (10)

I cannot tell you the amount of times I’ve read through a transcript and wondered why the defense didn’t object or cross-examine or try to contest Dzhokhar’s involvement during the guilt phase. This puts it in stark terms: they wanted to, but they knew they couldn’t. They, like Dzhokhar, were silenced.

At the end of his argument, Mr. Bruck’s words hit a fever pitch, and I can hear the barely concealed anger in his words:

When we first received this motion we thought, well, maybe the government’s filing this because they think that we’re going to call, you know, expert witnesses or social history witnesses or to present our full mitigation case … at the guilt phase. And we thought, Well, you know, maybe the motion’s really moot. All we need to do is say we’re not going to do that. But we come to find out that they actually want this to be a completely one-sided and distorted evidentiary presentation of a sort that has never occurred in any prior case, and we don’t think this should be the first one. (11-12)

It was the first one. The judge ruled with the prosecution, and the defense had to eliminate Tamerlan from their narrative. Considering they had two days before opening arguments to switch around their entire case, it’s no wonder most of what they presented felt shoddy and haphazard.

And we know exactly how it turned out for Dzhokhar.

That’s the real travesty here. It’s one thing if, as the defense seems to depressingly admit, “this case is all about sentencing… that’s really what we’re here about”(8-9). If there were no questions about responsibility, just proper punishment, maybe it really doesn’t matter. However, that’s the point of a legal system that grants its defendant the presumption of innocence: if guilt is ever a foregone conclusion beforehand, we close our eyes to true justice. I’ve spent months on this one little piece of the puzzle, on a question that should be easy to answer: did Dzhokhar get a gun and give it to Tamerlan?

I haven’t even been able to confirm that much.

If he’s undeniably guilty, why is this so hard?

On the Right Trail

After verifying the LA Times article, I had a noble, though perhaps naive notion: if could track down the source documents myself, maybe I could shed some light on the whole thing. If I could find evidence that the Ruger’s chain of custody skipped Dzhokhar entirely, it would be monumental for his appeal. So with some leads, I started looking.

Unfortunately, as of this writing I haven’t found them. However, given the high quality of the reporting in Mr. Serrano’s article, I will be referring to the information in it as fact, and use that to triangulate the Ruger’s movements. With that as a basis, I also looked into the relevant players from the Portland, Maine drug gang to see if I could, in any way, connect the alleged dots between them and Tamerlan.

I will be upfront about this: I was not able to find anything that directly links Tamerlan to these gang members. However, I have reason to believe that the cause for this is not simply that no connections exist. Rather, after a certain point, since the government had Dzhokhar to prosecute, inquiries into Tamerlan ceased.

For example, in looking for the documents, I found myself trawling through government subcommittee reports and transcripts related to the Boston Marathon Bombing. There were scant mentions of the Ruger — the only time someone was asked directly about its origins, the question was deflected because it was part of an “ongoing investigation.”

However, on April 4, 2014, a Congressional hearing was held on matters of national security and the threats posed to the United States from the Caucasus. I read the transcript of this hearing because I thought there might be a good chance the bombing would be mentioned — I doubt the average person in America could even put the region on the map beforehand — and partially because I find the area itself fascinating. I will gladly take any excuse to learn more about it.

I had barely begun reading before I was stunned by the words of Bennie G. Thompson, a Democrat out of Mississippi and member of the Committee on Homeland Security:

The Boston Marathon bombing and the Sochi Olympics spurred a growing interest
in the Caucasus region, and I commend the subcommittee for exploring the topic.
However, the subcommittee must be cautious in its approach. There is an opinion that many within the Caucasus region have been radicalized into an extremist mentality of global war. Many want to suggest this was the mentality of Tamerlan Tsarnaev, brother of alleged co-conspirator Boston Marathon bomber Dzhokhar Tsarnaev.

Mr. Chairman, like I have reminded you that on several occasions throughout our years on this committee, our words go beyond these four walls. We must remember that we have a responsibility to the people of Boston and the rest of the American public, not to create a defense for the capital case against Dzhokhar Tsarnaev. While others suggest that there is a possibility that Tamerlan Tsarnaev was inspired by extremist groups in the Caucasus region, I believe that speculation about any influence he may have received is not helpful to the prosecution.

Just last Friday, Dzhokhar Tsarnaev’s defense team filed motions based on a report by committee staff. While I do not believe we need to jeopardize the prosecution of Dzhokhar Tsarnaev by speculating on Tamerlan’s dealings in the Caucasus region, I do believe it is necessary for us to understand not only which groups are becoming radicalized in the Caucasus region, but also, why this is happening. (8)

I think, as person of Boston myself, as well as a member of the American public, that the government has a bigger responsibility to learn the facts about what led to the Boston Marathon Bombing and use that to reinforce policies which would keep residents of my city and all the cities in the nation safe. I have not yet seen a more blatant admission that justice was not a priority to the government in this case, and high-ranking members of Congress were afraid learning too much information about Tamerlan would “create a defense” for Dzhokhar, in which case the truth would not be “helpful” and would instead “jeopardize the prosecution.”

This is the central issue when it comes to studying Tamerlan’s side of the story. After a certain point it becomes clear that the investigation into him lost steam when the government realized it would have to focus on convicting Dzhokhar and sentencing him to death. And as both I and his defense team have pointed out — there’s really not much of a case without Tamerlan. In fact, the more that could be proven about Tamerlan, the better it was likely to look for Dzhokhar.

So while I cannot say for certain Tamerlan ever had connections to the colorful cast of Maine-based characters I’m about to introduce to you, I cannot say for certain he didn’t, either. I’ll have to present the information I do have and let you be the trier of fact.

Let’s start with the real chain of custody of the Ruger.

Link One: Manufacture and Legal Sale 

According to Richard Serrano’s article, directly after they recovered the Ruger from the shootout in Watertown, law enforcement went to work on tracing it. They had “immediately noticed that the eight-digit serial number had been filed down and was all but obliterated, a ploy criminals use to hide a gun’s origin.” However, “after a week of forensic work and lab tests, police technicians managed to ‘raise’ seven of the numbers. They ultimately found and matched the missing digit, which was the 8″(Serrano).

So it didn’t take the authorities very long to know exactly where the gun had originally come from, a fact never mentioned at trial:

The trace led to a Cabela’s, a popular hunting and fishing outfitter with stores across the country, in Scarborough, Maine, just south of Portland. Records showed the gun was purchased Nov. 27, 2011, as part of a “multiple handgun sale.” (Serrano)

20140514_207987-xml-20140513_cabelas_1
The Cabela’s in Scarborough, ME, where the Ruger was first purchased in November 2011.

It was also established who purchased the gun:

The buyer was identified as Danny Sun Jr., a Los Angeles native living in South Portland, a Portland suburb. (Serrano)

I looked into Danny Sun, Jr., but couldn’t find much on him, aside from what looks to be a mugshot.

dannysunjr

With that in mind, here’s what our chain of custody looks like so far.

RugerChainofCustody5

However, apparently law enforcement tracked him down shortly after Sean Collier’s murder:

But two weeks after the bombing, on May 1, 2013, Sun was arrested on a warrant in Westbrook, Maine, for failing to appear on an outstanding traffic case.

According to government sources, Sun, 26, was asked about the Ruger. After spending 50 hours in the Cumberland County Jail, he told police he had passed his gun to Biniam Tsegai. (Serrano)

Link Two: Biniam “Icy” Tsegai

Unlike Danny Sun, Jr., Biniam Tsegai has a much more storied past. At the time of his arrest, he was a 27-year-old immigrant from Eritrea — a country in east Africa. He’s also known by the nickname “Icy,” and was a prominent figure in a Portland drug gang. As Mr. Serrano states:

Tsegai was picked up three weeks later, on May 23, 2013, on Free Street in Portland on a fugitive warrant from a 2009 robbery case. He was taken to the Cumberland County Jail.

A federal grand jury in Portland charged Tsegai with conspiracy to distribute and possession with intent to distribute crack cocaine. … Tsegai’s rap sheet shows “almost five pages of police involvement,” [State attorney Michael J.] Conley said. Charges include disorderly conduct, criminal trespass, reckless driving, robbery and refusing to submit to arrest.

Conley said in a detention hearing in June that Tsegai always seemed to be “around” when police were called to a stabbing, a shooting or other crime scene. He often carried $800 or $1,200 in cash, Conley said, although he only worked at a Wendy’s or a convenience store.

icy
Icy – a fine, upstanding citizen.

Finally, someone who seems like he would be in possession of an illegal firearm. It’s true that it usually goes hand-in-hand with the drug trade. In the study previously mentioned in my last post, “Sources of Guns to Dangerous People: What We Learn By Asking Them,” the survey found a similar correlation:

First, it is rare for offenders to obtain their guns directly from the formal market: Only 10% of recently incarcerated state prison inmates who carried a gun indicate that they purchased that gun from a licensed dealer (gun store or pawnbroker). Rather, most of the transactions (70%) are with social connections (friends and family) or with “street” sources. The latter may include fences, drug dealers, brokers who sell guns, and gangs. It should be noted that “street” sources are not necessarily strangers — the survey questionnaire does not ask. (30)

It also notes a connection to area gangs as well as guns as a currency for buying drugs:

A number of respondents drew some connection to the drug trade, sometimes blaming “crackheads” for selling guns, or mentioning a connection with the “Mexicans” (presumably a reference to the Mexican gang that has been a principal wholesale supplier of drugs to and through Chicago (Mcgahan, 2013)). Several respondents mentioned arrangements in which outside traffickers were the source. In one case (R75), the son of a gunstore owner was “bringing crazy guns to the Southside,” apparently in exchange for drugs. Another (R88) also reported the source as the son of a gunstore owner, in the western suburbs, who was selling to local gangs. It is possible that the reference was to the same individual. (32)

The gang connection and the serious drug trade — notably crack cocaine — does not match the playground pot variety that Stephen Silva was involved in, with Dzhokhar dabbling a little on the side. I’ve mentioned already that marijuana is decriminalized in Massachusetts. Medical marijuana was legalized in 2012, as well. Everyone here is fully expecting that it will be legalized recreationally by this November, when it comes up on the ballot, so we can all stop pretending anyone still thinks it’s a big deal.

Icy, on the other hand, was arrested for distributing crack cocaine, and there was this interesting tidbit as well:

Michael J. Conley, an assistant U.S. attorney in Portland, noted in papers filed in federal court in January that the cocaine “had been brought to Maine from Boston.” (Serrano)

So now we have the flow of crack cocaine from Boston to this Portland gang, and the Ruger went from this Portland gang to Boston. However, there’s been zero indication by the prosecution in Dzhokhar’s case that anyone they named as having possession of the Ruger was muling crack cocaine at the time. Merhawi Berhe has had no drug charges brought against him. Stephen Silva admitted in his testimony that he had sold cocaine, but not until several months after Dzhokhar’s arrest:

Q. At some point later in 2013 did you start selling again?
A. Yes.
Q. When?
A. About the fall 2013.
Q. And what kinds of drugs did you sell at that point?
A. I started selling some cocaine, some Molly, prescription pills.
Q. Why did you expand your repertoire?
A. That’s just what my clientele had been asking for, so I had to accommodate my clientele. (79)

This wouldn’t account for bringing the drugs from Boston to Maine, either, if Silva was selling in Boston. Not to mention that his testimony is already so unreliable, I’m not even sure I can believe him when he says this, even if it is incriminating, without physical evidence to back it up. He could literally be saying anything to appease the government at this point.

I looked into Icy a little more, and learned that since the May 2014 LA Times article, he has pled guilty and is serving eight years for the cocaine charges. Perhaps more interesting, however, is that he was co-defendants with another man, whose sentence is actually much higher — 30 years. This co-defendant’s name is Hamadi Hassan.

With this information, I found article in the Portland Press Herald from May 14, 2014, which shed a little more light on the offenses:

Tsegai was targeted in a drug investigation by the FBI from November 2010 to February 2012, and is accused in court documents of being the leader of a drug trafficking ring in Portland. Federal authorities received authorization for two wiretaps on cellphones used by the drug ring, according to documents filed in federal court in Portland this year by Assistant U.S. Attorney John Conley.

“These wire intercepts, combined with testimony of several cooperating witnesses, would establish that during the dates of the charged conspiracy, Biniam Tsegai (1) received orders for user-level quantities of crack cocaine from Hamadi Hassan’s customers; (2) delivered crack cocaine to Hamadi Hassan’s customers after they had placed orders with Hamadi Hassan; and (3) packaged and prepared crack cocaine for sale and distribution after it had been brought to Maine from Boston,” Conley wrote, naming Tsegai and a man with whom Tsegai is alleged to have worked with in selling drugs. (Dolan)

The article notes that there was no indicated link between Tamerlan Tsarnaev and Icy or Hassan, but the dates involved in the wiretaps are interesting: November 2010 to February 2012. Considering this is the timeline that was used to convict, even though the two men were not apprehended until May 2013, there is still plenty of unaccounted for time. Tamerlan was not recorded looking up information about the Ruger on his computer until March 4th, 2013, and there was scant cell phone evidence from Tamerlan’s own phone entered into evidence at trial — only the week of April 10th, 2013, until the night of the 18th. (But more on the cell phone evidence in a future post.) Also, it’s interesting to note that considering the timeline involved with the charges against Icy, Merhawi Berhe would have been around 16-17 years old, and Stephen Silva 17-18, which seems rather young to be muling crack cocaine over state lines.

I could not connect Hassan to the Ruger in any way, but it’s clear he was a close associate of Icy’s, and perhaps his direct boss. On an interesting note, I was also able to pull a Portland news story from July 2011, in which several armed people in an apartment staged a six-hour standoff with police. Staff writer David Hench reports, “Dozens of officers, including the city’s Special Reaction Team, were deployed throughout the complex because of information that suspects inside 2 Pinewood Road, a two-story end unit overlooking Riverside Drive, might have guns.”

Eventually, the police made arrests, which included Icy, and perhaps Hassan as well, although he may have been misidentified as “Samadi” Hassan:

Police charged Samadi Mohamad Hassan, 29, of Portland with criminal threatening with a dangerous weapon, criminal threatening, aggravated assault and violating bail conditions.

Police brought charges of disorderly conduct and failure to submit to arrest against Hassan Osman, 24, of Columbus, Ohio; Biniam Tsegai, 24, of Portland; Hassan Akubar, 20, of Portland; Mohamud Said, 24, of Portland; and Samantha Pecoraro, 26, whom they described as a transient. (Hench)

portland-press-herald_3556633
An unidentified associate of Biniam “Icy” Tsegai is taken away by police after a six-hour armed standoff in July 2011.

So certainly Icy has a history with guns, and perhaps his co-defendant Hamadi Hassan did as well. There’s also the fact that if these men were all members of the same gang, it’s difficult to ignore that many of them bear Muslim names. As previously reported by Richard Serrano, “Portland is home to a trio of violent gangs called the True Somali Bloods, the Little Rascals Gang and a newly formed faction of the Crips Nation, according to the FBI.” While Icy himself has been identified as Eritrean, it’s possible the other gang members are Somalian — there is a large Somali community in Portland, and Maine hasn’t exactly been forthcoming with federal aid to undocumented immigrants. Gangs such as this usually arise from lack of social programs and entrenched poverty.

RugerChainofCustody6
From here, the chain looks a lot stronger.

Usually I would ignore religious identity as a correlative indicator — and I would hardly consider a Somali gang as the cornerstone of Muslim piety. However, there were numerous pieces of evidence presented by the defense at Dzhokhar’s trial that indicated Tamerlan was openly disdainful toward non-Muslims and did not like to associate with them. Miriam Conrad even brought this up in her cross-examination of Silva, and was able to get in some interesting information despite the prosecution’s rampant objections to the mention of Tamerlan:

Q. Did he — you said you never met his brother Tamerlan, right?
A. No, I never met his brother.
Q. And did he tell you, You don’t want to meet my brother?
MR. CHAKRAVARTY: Objection, your Honor.
THE COURT: Overruled. You may answer that.
A. Yes, he did.
Q. What did you think that meant?
MR. CHAKRAVARTY: Objection, your Honor.
THE COURT: Sustained.
Q. Did you ask him what that meant?
MR. CHAKRAVARTY: Objection, your Honor.
THE COURT: No. You may answer that.
A. Can you repeat the question?
MS. CONRAD: If I could remember it, I could.
Q. Did you ask him what he meant by that?
A. Yes, I did.
Q. What did he say?
MR. CHAKRAVARTY: Objection, your Honor.
THE COURT: Overruled.
A. From my perspective and options from the conversation, he said his brother was very strict. He was very opinionated and that since I wasn’t a Muslim, you know, he might give me a little shit for that.
Q. Do you remember when that conversation was, or was it on more than one occasion?
A. I remember on more than one occasion. (94-95)

If Tamerlan would even criticize a friend of his brother’s for not being Muslim, I struggled with the notion that he would involve himself in gang-related activity if he was so focused on Muslim-only relations. However, once I realized many of the men in question might have Muslim heritage, I thought that if he were to rationalize such behavior, a gang that had a shared background in Islam would probably be the one with whom he’d choose to connect.

Additionally, the defense also offered evidence indicating Tamerlan had involvement with drug distribution in the past. During the penalty phase, the defense called Rogerio Franca, a Brazilian immigrant who had known Tamerlan and roomed with a close friend of his. Mr. Franca recalled a time during 2008 or 2009 when he came home to find Tamerlan, his roommate, and another friend in the midst of preparing drugs:

Q. Was there a time when you came home and Tamerlan was doing more than just smoking marijuana?
A. Yeah, one day I came from my job, and I met him inside my room, him and the other ones inside my room.
Q. Let me stop you there. Inside your bedroom?
A. Yes, inside my bedroom.
Q. And he and the other ones, what do you mean by that?
A. I guess they was dividing some drugs inside the room there, on a table inside my room.

Q. Oh, dividing drugs?
A. Yeah. Like weighing the drugs inside.
Q. And you could see that they were dividing drugs?
A. Yup, inside the little bags.
Q. And what did you do?
A. I just told everybody get out of my room. That is no place for them to do that.
Q. And did they leave at that point?
A. Yeah, after a few minutes they did. (18-19)

Unfortunately, there’s not a lot of detail in this story, so it’s difficult to say what kind of drugs Tamerlan might have been involved with. However, it’s possible that because of past experience, he still had some network connections he could use when he wanted a firearm. It’s also potentially noteworthy that many of the men in the Portland gang are of an age with Tamerlan — he and Icy, for instance, were only a year apart.

Still, I admit that’s a big supposition to claim this is enough to link them, and I would not recommend taking that as fact in lieu of more concrete physical evidence. I merely find these to be interesting observations, and in this area there isn’t a lot else to go on at the moment.

Link Three: Choose Your Own Adventure

With all that in mind, let’s return to the Ruger’s chain of custody. At this point, from what I’ve gathered from my research, we have two possibilities of where the Ruger went from Icy. The first possibility is that it syncs up with the prosecution team’s chain of custody — that it gets from Icy in Portland to Merhawi Berhe in Boston, then from him to Stephen Silva, Silva to Dzhokhar, and finally Dzhokhar to Tamerlan.

RugerChainofCustody7

That’s a pretty long chain, but it’s the only one possible if we consider both the unused law enforcement documents and the prosecution’s theory of the case as fact. The weakest link in this chain would be how the Ruger jumped from 27-year-old Icy in Portland with a five-page long criminal record to 18-year-old no-priors Merhawi Berhe in Boston sometime before December 2012. Icy doesn’t seem like the type of guy who would lend out a gun on a whim, and there has been no indication the two knew each other. Icy also doesn’t seem like the type of guy who would take beating around the bush if he wanted the gun back, as Silva claimed Howie was. There was no explanation as why Howie requested the return of the gun, but I can only imagine if it was because he had Icy to answer to, he wouldn’t have sat around for two months waiting for it.

For now, consider the vagueness of Stephen Silva’s testimony, his incentive to testify, the inconsistencies that suggest he couldn’t have had the gun for certain events such as the 2012 New Year’s Eve party, and the fact that not a single person testified to corroborate his story, including Howie himself, the alleged source of the gun. With all these reasons to doubt the veracity of Silva as a witness, we can erase those three links from the chain: Howie, Silva, and Dzhokhar. Which brings us to our second option. RugerChainofCustody8

I’m not saying this is exactly what happened. There could be more links in the chain between Tamerlan and Icy that we simply don’t know about, but still exclude Dzhokhar. However, of the two, which one is the more likely scenario?

A Teller of Untruths

After all this, I admit to a certain level of weariness when it comes to the Ruger. Never again will I want to spend this much time thinking about a gun, especially one whose story makes everything far more complicated than it has a right to be. Long ago I copped to the likelihood that Stephen Silva’s testimony was completely invented to get him out of potential life in prison and wished I could simply leave it at that. However, as a fiction writer, I’ve had it drilled into me not to let the details of a narrative go until I had worked out all the kinks. Never is it okay to throw your hands in the air and say, “No one’s going to notice how unrealistic this is,” because someone always will. Because of this, I was not satisfied with letting the inconsistencies lie. I wanted to explain them. And more than anything, I wanted the real story.

Finally, I may have scratched at the surface of the truth. This happened when I found the 5K1 motion for Stephen Silva that was filed by the Boston federal prosecutor’s office after he testified in Dzhokhar’s trial. I thought, honestly, that there might not be much there, that it would simply explain the reasons why Silva deserved a lenient sentence.

Instead, I was sucker punched by three details, none of which had been disclosed at Dzhokhar’s trial, nor anywhere else, as far as I can tell. I’m attaching the full document here, because I believe it is important that you see it in its entirety. The redacted sections were not done by me, but rather, ostensibly, the prosecutor’s office.

The first detail comes on a footnote to the statement that during controlled buys of heroin between June and July 2014, “Silva repeatedly discussed, in detail, and on audio/video tape, with both the UC [undercover law enforcement officer] and CW-1 [cooperating witness], the fact that, in February 2013, he provided the Ruger handgun to Dzhokhar Tsarnaev (hereinafter ‘Dzhokhar’) that was subsequently used to kill MIT Police Officer Sean Collier on April 18, 2013. Silva told the UC that Dzhokhar wanted the gun to rob a drug dealer in Rhode Island, and that Silva did not know anything about Dzhokhar’s plans to bomb the Boston Marathon.”

The footnote reads:

5k1motion-1

This answered a question I’d had all along: what were the odds Stephen Silva was busted for completely unrelated crimes and he just so happened to tell an informant that he’d had the gun that had killed Sean Collier and handed it over to his best friend Dzhokhar, now infamously known as the Boston Marathon Bomber?

Zero, it turns out. Instead, law enforcement had been interested in him and his brother from the beginning, hoping to “develop information about the gun” despite having no physical evidence to go on. This is ripe territory for false confessions, when law enforcement is so focused on getting a suspect to admit his involvement in a particular crime they often won’t take no for an answer. It’s also interesting that the Silva twins were known specifically for marijuana in Cambridge and no other drugs. One must wonder if perhaps Stephen would have been inclined to sell heroin if the undercover officers had not asked for it. As I’ve said, heroin distribution is a much worse offense than selling pot — 160 years’ worth for eight sales, apparently.

I also wondered if law enforcement working the Silva angle also knew about the Portland, Maine investigation and that elsewhere, officers were looking to forego Dzhokhar’s alleged link to the gun.

Which brings me to the second detail.

5k1motion-2

This is the first and only court document I’ve found that attempts to link up Icy — though his last name is misspelled — and Howie. Not only does it indicate that the federal prosecutor working on Silva’s case knew about the Portland, Maine connection, it shows that we are expected to believe that Icy and Howie knew each other, and that Icy gave Howie the Ruger. Option #1 in the chain of custody is supposed to be the correct one. Yet once again — none of this appeared at trial. Why not? Are we truly to believe that Dzhokhar’s prosecution team didn’t know about this at the time?

Perhaps they didn’t. My dad and I have been back and forth on every possibility on this one. It is possible, although we don’t know how likely, that Dzhokhar’s prosecutors didn’t know about this when they were preparing Silva to testify. It seems odd that they wouldn’t, however, if they knew about and wanted Howie to come in to verify Silva’s story, as the timing of his arrest suggests. There’s also the fact that although Howie is named here as an associate of Icy’s, there has never been any drug charges brought against him — only one count of possession of the Ruger. If Howie is involved in similar business as Icy, why don’t they have enough to charge him for that as well? The questions start to pile up, and I don’t have any answers for them at this point.

But that’s not even counting the final detail, the last gasp in the death throes of the prosecution’s theory of the case. The one glaring point that I have been trying, trying, trying over the last month to find a reasonable explanation for, before I have to start considering something far more ominous.

Because in this 5K1 motion, written by a Boston federal prosecutor, put in place to give Stephen Silva a lenient sentence for cooperating with the government in convicting Dzhokhar Tsarnaev, the chain of custody is different than what is in his trial testimony:

5k1motion-3

That’s right. According to this, Howie gave the Ruger to someone else — someone whose name is redacted by the government — and that person gave the gun to Silva.

Except that doesn’t match Stephen Silva’s testimony. That’s not even close to what he said at trial. He was unequivocal that he got the gun from Howie:

TranscriptScreen1
He asserts this first on page 45…
TranscriptScreen2
…then on page 58, not once…
TranscriptScreen3
…but twice.

Not once is a middle man between Silva and Howie mentioned. In fact, Mr. Chakravarty’s line of questioning doesn’t even seem to allow for a middle man. It is just Howie to Silva, directly, again and again and again. Silva’s testimony does not match the 5K1 motion filed to say he had truthfully cooperated with the government and should be released — the very agreement that would be voided if he lied on the stand.

As my father has said, there is a teller of untruths here. The question is, who is it?

We must start with the mysteriously redacted name, whom my dad and I have been calling the Invisible Man — or the Invisible Person, as I pointed out we have no idea what gender said phantom is. At first we tried to give the prosecutor in Silva’s case, Peter K. Levitt, the benefit of the doubt: perhaps he or his paralegal were simply going off of notes from the police investigation and there was a typo. But the phrasing there leaves no room for a typo; it not only identifies the Invisible Person as being separate from Howie, but specifies him or her as a friend of Silva’s from high school. Then someone in the prosecutor’s office was certainly paying enough attention to redact this new person’s name.

RugerChainofCustody9
My head hurts.

Why would this name possibly be redacted? My dad posited that it likely was to protect the identity of a confidential informant. That’s possible, except one being undercover does not allow for court testimony to exclude someone like they never existed in the first place. Even if Silva got the gun from the Invisible Person instead of Howie, that information must be disclosed at Dzhokhar’s trial, even if the person is not named for confidentiality reasons. It does not, in my father’s words, give leave for a witness to “perjure himself with impunity.”

Because make no mistake, at this point there is no way around the fact that Stephen Silva, at one point in time, lied. According to the 5K1 motion, his original statements to the undercover agents included the Invisible Person. And, as my dad put it, the federal prosecutor’s office is filing these documents and has a responsibility to confirm that all the information in them — which are appearing in front of a federal judge — are accurate. Peter K. Levitt was not prosecuting Dzhokhar Tsarnaev, and therefore had no stake in whether the gun came from Howie or Silva or anyone else. He was likely just presenting the information that was given to him from law enforcement, and probably had no idea Silva’s testimony at Dzhokhar’s trial did not match his original statements.

However, it stands to reason, Dzhokhar’s prosecution team did.

That leaves unanswered an even more troubling question, one we have been bandying about for several weeks now, hoping there is a reasonable explanation. As shown above, Mr. Chakravarty is also quite married to the chain of custody taking the gun from Howie directly to Stephen Silva. He would have been the one preparing the witness to testify. Did he know Silva changed his story like this? Perhaps not, although every indication seems to show that Dzhokhar’s prosecution team was working off the same law enforcement materials that Mr. Levitt used to prepare the 5K1 motion — all taken, reportedly, from recorded video and audio with Silva. That’s a very glaring detail to mistakenly overlook.

Perhaps he didn’t think it was significant, because Silva’s story made such little sense anyway. Just like, perhaps, the prosecution team didn’t think it was significant to introduce anything about Icy and the Portland gang, because it might give Dzhokhar’s lawyers a chance to defend their client. Perhaps all that mattered, despite a wealth of evidence to the contrary, was getting that Ruger in Dzhokhar’s hands. Anything that got in the way — such as Silva naming two different people as the source of the gun, and the possibility that Tamerlan was connected to Icy without Dzhokhar’s involvement — could jeopardize their shot at conviction, and had to be quickly and quietly suppressed.

It’s possible. However, knowing Stephen Silva would lie on the stand is subornation of perjury, and is illegal. That would be a blatant case of prosecutorial misconduct, which is known to happen in wrongful convictions. On the Innocence Project’s website, in fact, there is a whole list of such behavior (emphasis mine):

Common forms of misconduct by prosecutors include:

• Withholding exculpatory evidence from defense
• Deliberately mishandling, mistreating or destroying evidence
• Allowing witnesses they know or should know are not truthful to testify
• Pressuring defense witnesses not to testify
• Relying on fraudulent forensic experts
• Making misleading arguments that overstate the probative value of testimony

I truly want to believe a federal prosecutor, who is supposed to stand for fairness and order, is better than that. However, as the Innocence Project page states, “In far too many cases, the very people who are responsible for ensuring truth and justice — law enforcement officials and prosecutors — lose sight of these obligations and instead focus solely on securing convictions.”

To be clear, I am not accusing anyone of wrongdoing; however, the documents speak for themselves. I’m only trying to interpret them. I’m not certain what actually happened, but I do hope that someone on Dzhokhar’s defense team can pursue this and shed light on the situation once and for all. I’m limited in my resources in a manner that they are not.

For now, I’ll have to leave it up to you, dear reader. You’re the trier of fact. I’m only the messenger, and I’m frankly tired of none of this making any sense.

Closing Arguments

My quest to trace the chain of custody of Sean Collier’s murder weapon was intended to make Dzhokhar Tsarnaev’s guilt or innocence clearer. In order to convict, we must be at least 80% certain Dzhokhar provided the weapon that killed Officer Collier. Here, then, after twenty thousand words and weeks of headaches, are the reasons to doubt.

Reason to Doubt #1: The testimony of Stephen Silva, who put the Ruger in Dzhokhar’s hands, is riddled with inconsistencies, incentives to push the prosecution’s narrative, and by now, flat out lies that don’t even match the 5K1 motion that gave him the deal in the first place.

Reason to Doubt #2: This testimony was not backed up by a single shred of physical evidence, and several witnesses who should have been easily able to verify it (including Dias Kadyrbayev and Merhawi Berhe, both in federal custody at the time) did not testify.

Reason to Doubt #3: Dzhokhar’s behavior as described in relation to the Ruger goes against every one of dozens of character witnesses called by the defense. One wonders why the prosecution couldn’t find anyone aside from Stephen Silva to attest to Dzhokhar’s budding criminal interest.

Reason to Doubt #4: Separate law enforcement documents the defense team may not have known about confirmed key details regarding the Ruger’s chain of custody that did not make it to trial. Such documents expressed interest in linking Tamerlan Tsarnaev to a drug gang out of Portland, Maine, without the involvement of Dzhokhar. Tamerlan exhibited signs of having some sort of under-the-table job, and defense testimony showed he was involved in drug distribution in the past.

Reason to Doubt #5: High-ranking members of the American government have been open about not properly investigating Tamerlan Tsarnaev because it would “jeopardize” the prosecutors’ case against Dzhokhar.

Reason to Doubt #6: The prosecution team in Dzhokhar’s case aggressively pursued and won the ability to exclude Tamerlan when it suited them, an unprecedented move in any criminal trial in American history. Doing so throws into question whether the defense team could have contested some of the evidence even if they wanted to and suggests desperation on the part of the government to convict. One must wonder why.

Reason to Doubt #7: The available knowledge about the Ruger’s chain of custody is so convoluted as to be nonsensical, if one must consider all the government’s evidence as fact.

Reason to Doubt #8: If the prosecution team allowed Stephen Silva to lie on the stand, they have committed prosecutorial misconduct — a common hallmark of wrongful convictions — in the form of subornation of perjury.

Reason to Doubt #9: Ironically, the statutes that allowed Dzhokhar to be convicted for possessing the Ruger have since been struck as unconstitutional by the Supreme Court and must eventually be vacated. One must also wonder how easily the prosecution might be able change their narrative if they wanted to retry — and why the truth seems to be so malleable in the first place.

With all this in mind, would you be able to convict Dzhokhar Tsarnaev for possession of the Ruger, and consider him responsible for Sean Collier’s death?

I certainly couldn’t.

Epilogue: Howie’s Sentencing 

On July 26th, 2016, Merhawi Berhe was sentenced to six months in prison for possessing the Ruger P95 that killed Officer Sean Collier. Afterward, he will have to complete two years of probation, all without a scrap of physical evidence that he had the gun in the first place.

In looking through the documents filed in relation to his sentencing, I hoped I would find something enlightening. His link in the chain is by far the most puzzling — how, if at all, did he know Icy, a notorious gangster in another state eight years his senior? What might have he done to get the Ruger in the first place? Mule crack cocaine? Does he actually know Stephen Silva, and what could his relation to the Invisible Person be?

The documents have shown no leads. None mention Icy, gang activity, or any trace of the Invisible Person. Instead, I found a treasure trove of character references, submitted by Howie’s lawyer to ask for leniency in his sentencing. Letters from friends, family, a coach, and members of his church describe him as “calm, respectful, well-behaved,” “friendly, honest, dependable,” with “a great sense of humor.” A close friend, now a full scholarship student at Northeastern, said, “I’m truly honored to call him a friend but most importantly a brother.”

And I realized, with a pang of heartache, Howie sounds an awful lot like Dzhokhar.

A cynic might sneer: that that’s what they all say when things like this happen. No one wants to admit to the rotten core lurking beneath the surface. To which I say: that’s what selfish, fearful people think when they want easy answers. After all, no one wrote letters like this when Icy pled guilty. No one came to Dzhokhar’s trial and claimed Tamerlan’s involvement was a mistake.

So which is it? Are Dzhokhar, Howie, Dias and Stephen Silva symptoms of some deep, hidden evil? Or are they kids caught up in something they could never possibly fight in the first place, with the system rigged so completely against them?

jahartwins350_zps7e64e2d3
Happier times: Dzhokhar with the Silva twins.

I did learn, through the documents filed at Howie’s sentencing, that he’s Eritrean. I’d had my money pinned on Ethiopian, but apparently the two countries share a lot of the same names. But I don’t think that could possibly stand in for evidence he actually knew Biniam Tsegai — I could still find nothing that asserted their relationship, nor evidence that Howie had ever been to Portland. Instead, I thought, with a shiver of horror: I hope no one in the government tried to link the two of them based entirely on ethnicity. 

The sad part is, I wouldn’t be surprised anymore if they did.

I had been hoping to confirm this last bit of information with court documents, but I haven’t found the transcript for Howie’s sentencing hearing yet. However, since I don’t think I can, in good conscience, postpone these updates any longer, I’ll have to quote the Boston Globe on this. It’s a tidbit written the day of Howie’s sentencing:

In January 2013, Berhe had the Ruger P95 9mm semiautomatic handgun with an obliterated serial number in his possession before transferring the weapon to another individual, [US Attorney Carmen] Ortiz’s office said.

That individual subsequently gave the gun to Stephen Silva, who then provided it to Boston Marathon bomber Dzhokhar Tsarnaev, Ortiz’s office said. (Fox)

Not only is the government committing to the Invisible Person — hardly surprising, considering Peter K. Levitt was the prosecutor in both Stephen Silva and Merhawi Berhe’s case — but now, suddenly, they allege Howie had the gun in January 2013.

I hope that’s a typo, despite the claim that the information came from the federal attorney’s office, because there’s no way Howie could have had the Ruger in January 2013. That would completely destroy the government’s timeline at Dzhokhar’s trial. That means Stephen Silva couldn’t have possibly used the Ruger to rob anyone in December 2012, nor bring it to the New Year’s Eve party he probably never went to because he had the flu.

And how could Dzhokhar ask about the Ruger in January 2013, so keen on committing robbery, as Silva claimed, if it was still not just one, but two links in the chain of custody away?

Is any of this real? Or has it all been put into place hoping no one would look too closely? And all the while, are young men — ones I could have known — going to prison for it?

For their sake, and the sake of everyone like them, I will look closely.


Works Cited

Committee on Homeland Security, House of Representatives. “Assessing Terrorism in the Caucasus and the Threat to the Homeland.” Hearing Before the Subcommittee of Counterterrorism and Intelligence. 4 April 2014.

Cook, Philip J, Susan T. Parker and Harold A. Pollack. “Sources of Guns to Dangerous People: What We Learn by Asking Them.” Preventative Medicine 79 (2015): 28-36. PDF.

Dolan, Scott. “Maine Men Linked to Boston Marathon Bomber’s Gun.” The Portland Press Herald. 14 May 2014.

Fox, Lauren. “Cambridge Man Sentenced for Possession of Gun Used to Kill Sean Collier.” The Boston Globe. 26 July 2016.

Government Misconduct.” The Innocence Project. Accessed August 15, 2016.

Hench, David. “Police Standoff in Riverton.” The Portland Press Herald. 2 July 2011.

Hoey, Dennis. “Maine to Halt Funds for Illegal Immigrants’ Aid.” The Portland Press Herald. 12 June 2014.

Schoenberg, Shira. “Government Asks to Seize Dzhokhar Tsarnaev’s Assets.” MassLive.com. 19 June 2015.

Serrano, Richard A. “Gun Used by Suspected Marathon Bomber Traced to Maine Gang.” The Los Angeles Times. 12 May 2014.

Serrano, Richard A. “Re: (no subject).” Received by Heather Frizzell. 28 June 2016.

United States District Court, District of Massachusetts. “United States of America v. Dzhokhar Tsarnaev: Pretrial Argument by David Bruck.” Jury Trial – Day Twenty-Five: Motion Hearing. 2 March 2015. PDF.

United States District Court, District of Massachusetts. “United States of America v. Dzhokhar Tsarnaev: Testimony of Jeffrey Pugliese.” Excerpt of Jury Trial – Day Thirty-Three. 16 March 2015. PDF.

United States District Court, District of Massachusetts. “United States of America v. Dzhokhar Tsarnaev: Testimony of Mark Spencer.” Jury Trial – Day Fifty-One. 28 April 2015. PDF.

United States District Court, District of Massachusetts. “United States of America v. Dzhokhar Tsarnaev: Testimony of Rogerio Franca.” Jury Trial – Day Fifty-One. 28 April 2015. PDF.

United States District Court, District of Massachusetts. “United States of America v. Dzhokhar Tsarnaev: Testimony of Stephen Silva.” Jury Trial – Day Thirty-Four. 17 March 2015. PDF.

United States District Court, District of Massachusetts. “United States of America v. Stephen Silva – Government’s Motion For a Downward Departure Based on the Defendant’s Substantial Assistance.”


Thanks to my father, Thomas Frizzell, for the immense work he put into making this writing possible. Further thanks to Richard Serrano for consulting me on the case and providing valuable insight.

And thank you, as always, for reading.

 

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9 thoughts on “Who Killed Sean Collier? Part Two: The Gun – Continued

  1. Heather, you and your father are doing such important work. Late last night, I read all this slowly and with great interest. You truly left no stone unturned. Sadly, the more that is revealed, the more obvious it becomes that for reasons I and many others do not yet fully understand, a great tragedy, a gross miscarriage of injustice, has been visited upon Dzhokhar Tsarnaev. I am forever grateful for the time, thought and care you and your father have given to the pursuit of the truth in this case! This two-part post really moved the marker quite a ways forward. Well done!

    I assume you are forwarding this very important and useful information to Dzhokhar’s new attorneys. Your efforts make me realize again that not everyone in Massachusetts is blinded by hate for this obviously innocent young man. You have given the new attorneys so much to work with as they hammer out the appeal.

    Your payment, your reward, will be realized when Dzhokhar walks free. I believe one day he will be made aware of the amazing efforts taken by common men and women to find the truth and reveal it in order to secure his release and restore to him that which, for now, likely seems lost forever.

    Keep going with this endeavor. I know it will be worth it in the end!

    1. Sorry for being so late with responses. I just wanted to say thank you so much for your kind words and continued support. I too hope that my endeavors can do some good one day in the process of Dzhokhar’s appeal. Of course, it wouldn’t be possible if not for the support of intelligent and thoughtful readers. I’m forever grateful!

  2. Dear Heather,

    I always receive your new articles as a gift of knowledge and I thank you and your father for it. Your research in this case is extremely important and valuable.

    I hope you are seriously planning to send your research to Dzhokhar’s new lawyers.

    The more we look into this case the more it does not make sense. Everything is in the details that we read. Like you said it seems that the prosecution did not think that we would pay attention to those small details. But we did pay attention.

    When you read the trial transcripts testimonies in conjunction with the trial exhibits you immediately know that the witnesses were lying.

    The gun in question was never in the hands of Dzhokhar and in the hands of Tamerlan for that matter. It would have been so easy for the prosecution to prove their case about the gun if they had called Dias to the stand. But they did not. I wonder if the defense intended to call Dias to the stand but were prevented from doing it. I guess we will find out in 10-20 years when we can access all of the remaining sealed court documents.

    We know that the Tsarnaev brothers did not kill Officer Collier because the government trial exhibit video of what they portray as the Tsarnaevs (those two tiny figures) appear in that video after Collier was already dead according to their own timeline.

    We know that Tamerlan Tsarnaev and Dzhokhar for that matter were never on Laurel Street because of the government’s trial exhibits. If you look at their exhibit 748.mov you will see what the government say is Tamerlan fetching Dzhokhar after Dun Meng escaped. Tamerlan in that video is wearing black and white sneakers. Then half an hour later, they show him in government trial exhibit 1522 engaging in a firefight with law enforcement on Laurel Street wearing entirely white sneakers. No one will make me believe that he changed his sneakers just prior to the gun fight.

    However, if you look at the Podstava video the person on the ground is Tamerlan Tsarnaev and he is wearing black and white sneakers just like the one he is wearing at the Gas station. I asked a person who is in the film industry to look at those images and she confirmed that the person on Laurel Street is not the same person that we see at the Gas Station.

    I would really like to know what happen to Daniel Morley, the man that rubbed the 711 the night of Collier’s murder. We know that he was arrested the week following the Boston marathon bombing when authorities found in his bedroom IEDs (the same one that the authority say was used at the Marathon) and the plans to construct them. He was arrested and sent to a mental institution. No one can enquiry about him. It’s like this guy has completely vanished from the planet.

    During the trial the prosecution tried, and half succeeded at least in the mind of those jurors, to prove that the IEDs were made in Tamerlan’s apartment. I am surprised that the defense did not come around and ask those FBI bomb experts about Daniel Morley’s stash of IEDs that the FBI found in his bedroom. I am more surprised that they did not bring up the fact that the government in their motion 319 : wrote that while Dzhokhar was being questioned by the High Valued Interrogating group he apparently admitted to making the bombs but the FBI said it was implausible given the absence of any traces of black powder in the apartment. The defense did not bring up what was said at Robel Phillipos’ trial (particularly on day 6) when FBI special agent Walker said that his agency did not know where the bombs were made. Agent Walker testimony on October 7, 2014, that is 3 months prior to the start of Dzhokhar’s trial, was filed with Dzhokhar Tsarnaev defense motion 972 as exhibit 3.

    “Q. Now just to clarify, the bombs that were used that were detonated in the Boston Marathon bombing were not made in Dartmouth, Massachusetts, to your knowledge?

    A. I don’t know that to be the case. I can’t say at this point. I have no information, as I sit here, that affirmatively would indicate that they were made in North Dartmouth, Massachusetts, that is correct, yes sir.

    Q. You don’t have evidence that they were made in North Dartmouth, correct?

    A. Correct.

    Q. The evidence that you have is that they were made in Cambridge, in the Norfolk Street residence?

    A. No sir.

    Q. They were made somewhere else?

    A. To clarify, and I think it would be helpful, are you asking here my own personal knowledge, or the knowledge of my agency?

    Q. The knowledge of your agency.

    A. I don’t know that a – and I believe that a firm determination has not been made to date as to locations where the IEDs were constructed.

    During the trial of Dzhokhar the prosecution asked if the FBI had found a single place where the bombs were made and the defense OBSECTED and the judge SUSTAINED. Why? This was the defense chance to prove that the brothers did not make those bombs.”

    Yes they lied and it looks like there was prosecutorial misconduct in the Tsarnaev case. The prosecution and the defense and the judge were all aware that the FBI had no idea who and where those bombs were made.

    It took me half a day to read your new article as it brought me back to the time of the trial when it became clear that Dzhokhar had no chance at all at a decent defense. I became very emotional when I read what David Bruck said.

    I remembered the many conversations I had with Dzhokhar’s Aunt Maret when she informed me during the trial that the defense early on told the family that they knew the brothers were innocent but that the family had to let the prosecution convict Dzhokhar, that it was unfortunate the brothers were caught in a political agenda from high above within the Government.

    As a matter of fact Maret Tsarnaeva filed an Amicus brief, through her lawyer, that included exculpatory evidences. The judge denied her brief but kept it on file. Now you tell me what good came from keeping that brief on file.

    What I don’t understand is why the defense did not removed themselves from the case when they became aware, and they did very early on, that they were prevented from properly defending their client and most importantly why they did not file for the removal of the presiding judge in this case?

    The defense was under the impression that by blaming everything on the older brother, Tamerlan, they could save Dzhokhar’s life. Well it did not work because they were also lying.

    Dzhokhar is under very severe Special Administrative Measures and I don’t even know if he is able to communicate with the Innocence Project. The kid cannot even mention the name of his brother. The name ‘Tamerlan’ is taboo.

    We are his voice the one that was taken away from him. We need to continue to look into this case and expose the evilness of it.

    My wish is that God keeps me alive until the day Dzhokhar is free.

    1. When I read this blog and the facts in this comment, I just want to cry with rage. How is such a miscarriage of justice possible. The feeling of helplessness is so frustrating!

      Thank you Heather for your meticulous work, once again! It is really impressing really!

      1. While I know how frustrating it can be, the more knowledge that is shared about the injustice, the more easily we can fix it. Thank you so much for your support.

    2. I do want to say I am very interested in where the bombs were actually constructed, as testimony at Dzhokhar’s trial indicated that they weren’t likely to have been built in the Tsarnaev family Cambridge residence, due to the lack of gunpowder found. I’m doing more research on this currently and I hope to have a more definitive answer in a future post.

  3. Heather, after anxiously awaiting this new article for so long, I can say it was more than worth it. This article, filled with critical insight, is brilliant! For me this more than proves that the FBI set Silva up knowing the charges for heroin would be more than enough to blackmail this kid and have him agree to say anything at all that the prosecution wanted him to say, to save his own life, and it certainly worked. It’s absolutely true that having that gun in Dzhokhar’s hands was extremely critical to their case and they were willing to do anything to make that happen.This is how cases are won over and over in a corrupt courtroom and department of “justice”. This is exactly how mass incarceration in the US has happened.

    I guess it would be hard for you to accept that your government is so corrupt, but you have left it up to your readers to decide and I believe that any reader could decide nothing less. You also point out what the Innocence Project states are COMMON forms of prosecutorial misconduct:
    • Withholding exculpatory evidence from defense
    • Deliberately mishandling, mistreating or destroying evidence
    • Allowing witnesses they know or should know are not truthful to testify
    • Pressuring defense witnesses not to testify
    • Relying on fraudulent forensic experts
    • Making misleading arguments that overstate the probative value of testimony

    There is no doubt that Dzhokhar’s prosecutors (and judge) are guilty of each of the above misconduct, or let’s call it what it really is- criminal misconduct, which they should all be charged with. They conspired together to have an innocent young man sentenced to death! They are the criminals.

    Your article is eye opening and I will send this to both of Dzhokhar’s new lawyers and many others. I thank God for people like you and your Father. Thank you so much for this Heather!

    1. Thanks so much for your continued support, Julie. (And sorry for a late response; I meant to get to this discussion much faster than reality let me.) I did want to say quickly: I purposefully included the entire list of the Innocence Project’s behaviors of prosecutorial misconduct so that insightful readers could weigh the overarching actions of the prosecution team and decide for themselves. This type of thing tends to be a pervasive pattern of behavior, so if it’s present in one area of the case, it has the potential to be found elsewhere, too. I encourage readers to use their own critical eye as we go forward, although if I find more troubling evidence, like the discrepancy in Silva’s 501k motion, I will be certain to report it.

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