Year End Update: Tips From Readers and What’s Next for 2017

As 2016 draws to a close, I find myself looking back on a contradictory, tumultuous year. In terms of this blog and my investigation into the case, I feel good: much has been uncovered, and the discussions I’m having and the awareness I’m raising are enlightening and filling me with hope. On the other hand, the American political landscape I am surveying is far more challenging than I ever could have imagined when my journey started in a Boston federal courtroom a year and a half ago. I’m hyperaware of the passage of time these days, and know that each rotation of the earth is another day for Dzhokhar in prison under dubious circumstances. It’s forced me to re-evaluate everything about myself and the direction I want to take this project I have undertaken, as well as my life in general.

I would like to update you on all these things and what it means for the blog (spoilers: good news!). First, however, there’s information that I’ve been wanting to post about for months: updates to the stories I posted over the course of 2016, thanks to tips sent to me by sharp-eyed readers. I would not have been able to make these connections if not for their input, and my gratitude to them is immense. I encourage all of you out there, if you think you have information useful for the investigation, please do not hesitate to email me using the contact page. I read and evaluate everything that comes through there, even if I don’t have time to respond. Given the incredibly complex nature of this case, sometimes details don’t make sense to me until much later, so I assure you that your input is valued.

The Knit Hat Mystery – Solved

If you may recall from the first installment of my Sean Collier series, there was an issue in regard to a knit hat. In fact, the one eye witness to Collier’s murder, Nate Harman, testified on March 11, 2015 that the person standing at Collier’s car was wearing a knit hat. However, details about the hat were hard to come by:

Q. What about the — you said the person was wearing a cap of some kind. Is this what he was wearing?
A. That’s not the hat that I remember seeing. I remember seeing a, like, more knit hat that you pull over your head.
Q. So the thing that’s more like a knit cap that you pull over your head, did it have a bill?
A. Not that I remember, no.
Q. Okay. And was it the same height on the person’s head all the way around, like an ordinary knit cap?
A. I don’t know.
Q. It was just looked like a knit cap?
A. Just a knit cap, yeah. (196-197)

Later, on March 17th, when the government examined their witness, Stephen Silva, they did attempt to link this vague description to a hat that Dzhokhar owned:

Q. Did you ever know him to wear a knit hat, like in the winter?
A. Yes.
Q. I show you Exhibit 820.
MR. CHAKRAVARTY: Just for the witness, your Honor.
Q. Do you recognize that?
A. Yes.
Q. What do you recognize it to be?
A. The defendant’s Boston Red Sox winter hat.
Q. And you had seen him wearing this?
A. Yes. (39-40)

I’ve had a lot of problems with this asserted connection since the beginning. First, given the climate of Massachusetts, almost everyone owns a winter hat, so the fact that Dzhokhar was among its residents to prefer avoiding hypothermia hardly proves anything. Second, Stephen Silva’s description of the hat doesn’t actually match Nate Harman’s. Harman’s is supremely vague, using phrases like “not that I remember,” “I don’t know” and “just a knit cap.” Silva’s description is more specific: a Red Sox hat, the logo on which any resident of Boston should be able to recognize. If Harman had identified the hat as such, I would consider it a closer match, but given the number of people in the city who don Red Sox apparel, I still wouldn’t call it a slam dunk. Third, neither description matches the photo of the hat Dzhokhar actually did wear the night Sean Collier was killed, a light cap with a bill on it that Tamerlan wore later. In fact, Harman specifically states that is not what he saw. And finally, if memory serves, the entire week of the bombing was the first time it was warm all year, so that winter hats were hardly needed – and if someone was caught in the throes of committing crimes, perhaps too warm to even wear. Indeed, records show temperatures in the area on the night of April 18th to have been 52°F (11°C), which is downright balmy in Boston terms.

At the time of my reporting on Nate Harman’s testimony, all this led me to wonder if perhaps the knit hat even existed. It had never been shown in court or properly identified as Dzhokhar’s. It also seemed to exist conveniently to cover one of Dzhokhar’s most prominent features: his long and untidy hair, which Harman himself did not recall on the person he saw. However, I did wonder if that was something the prosecutors would go so far as to fabricate to help along their witness’s story. It seemed too oddly specific to make up out of thin air, and as is so prevalent in this case, I’m far more used to their stretching or misrepresenting reality instead of inventing it altogether.

Luckily, thanks to a reader, the knit hat has been found. It was among the items in the boat in which Dzhokhar hid before being apprehended.

Backing up this is a statement by defense attorney Tim Watkins on March 16, 2015, when the jury took a trip to a warehouse to view the boat. Before the jury arrived, he had this exchange with Judge O’Toole:

Interestingly, this particular transcript was not filed until May 2016, which might explain why I couldn’t find any connection to the knit hat when I was working on the article on Nate Harman, published in March. This is the only indication of the origin of the knit hat, and suddenly the government’s inclusion of it makes sense. However, as far as I know the prosecutors never mention to the jury where the knit hat came from, nor that it was recovered from the boat.

Still, from this we can infer a number of things. First, the government was clearly trying to include this particular knit hat, pictured above with a pattern on it, into the narrative of Dzhokhar’s movements the night of April 18th. They were hoping to draw lines from Dzhokhar’s asserted presence at Sean Collier’s police car, seen by Nate Harman, to the testimony from Stephen Silva that he did own a knit hat, to the hat that was found in the boat.

Unfortunately for them, neither description of a hat by their two witnesses matches the photo. The hat in the boat is multi-colored and patterned, the kind of hat that is not exactly inconspicuous. However, all Harman can remember is that it was “just a knit cap” and all Silva had to offer was that Dzhokhar had a Red Sox winter hat. In order for the hat in the boat to be Dzhokhar’s, he would have had to have it on his person for the duration of the events of April 18th, even though multiple surveillance cameras – from the Bank of America ATM and Mobil gas station – show him with no such hat, and the officers involved in the shootout in Watertown never mention it, either. Also, if you study the exhibit, the hat sits among several other items that reasonably could have been in the boat before Dzhokhar got in it: items such as a life jacket, towels and blankets. Considering Dzhokhar’s flight on foot post-shootout, it’s unlikely he was carrying any of those items. Therefore, it’s plausible that the hat itself was also part of the boat’s contents beforehand, and the prosecution simply tried to attribute it to Dzhokhar after the fact.

It’s also exculpatory for Dzhokhar: if this was the hat the government had Harman on record saying he saw, the fact that Dzhokhar never could have worn it in the first place shows once more how unreliable Harman’s testimony was.

What the Defense Didn’t Know About the Ruger P95’s Chain of Custody

My next few tips have to do with the second installment in my Sean Collier series, a two-part post in regard to Collier’s murder weapon. Thanks to a reader, it has come to my attention that Dzhokhar’s defense team may not have known key details about the Ruger’s chain of custody until after the public did. This reader points to a document recently unsealed, in which the defense contacted the prosecution team on June 15, 2014, to request discovery materials. In it, they specifically mention Richard Serrano’s article in the LA Times about law enforcement’s investigation into a drug gang in Portland, Maine, and its potential ties to Tamerlan Tsarnaev:

This piece of information is interesting for a few reasons. First, it references a letter the defense sent to the prosecution on May 13, 2014 — the day after Mr. Serrano’s article was published. This indicates they saw the article like the rest of the public, and, according to this excerpt, promptly contacted the prosecution because they had no idea there were additional reports about the Ruger. Second, it can be inferred from this paragraph that the government was giving the defense the run-around in regard to the gun trace. This is evident in the statement “Contrary to your suggestion, we have not received the investigative reports documenting that the Ruger was purchased” — and likely the redacted information names Danny Sun, Jr. and perhaps Biniam “Icy” Tsegai. This shows that by the time this document was written, there had already been a few letters of bandying between prosecution and defense in which the defense was trying to obtain discoverable material about the Ruger.

In my previous post about the gun’s chain of custody, I pointed out that nothing about Danny Sun, Jr. or Icy appeared at trial. At the time, I wondered if perhaps the information from law enforcement in regards to the trace simply hadn’t made it to either the government or the defense, since at the time I had no information to suggest otherwise. This does suggest otherwise: it’s now very likely that the government had the trace reports that point to the gun’s early links in the chain of custody, but for some reason was withholding them from the defense. As the LA Times article suggests law enforcement was, at that time, searching for a link between the Portland gang and Tamerlan instead of Dzhokhar, it’s possible this was exculpatory information, and withholding it is violating the rules of discovery under Jencks.

I would be very interested to know if the government ever did provide the defense with those reports, and if so, why none of it came out at trial. This was far from the only piece of discovery the defense was trying to obtain, as the full document shows. You can view it here, although when released it was partially redacted, raising further questions I must wait to address at a later date.

Howie in Portland

While we’re on the subject of the Ruger, a few more details have come to light that may speak to questions about its chain of custody — although things are by no means cleared up.

One of the biggest questions I’d had when writing my previous posts about the Ruger was how the chain of custody allegedly jumped from Icy Tsegai, a well-known criminal and drug dealer in his late-20s from Portland, to Merhawi “Howie” Berhe, a skinny kid from Cambridge who was 18 at the time he supposedly possessed the Ruger. Despite my searching, I could find nothing that linked Icy and Howie, aside from the fact that they were both ethnically Eritrean, which could have been simple coincidence.

However, a reader contacted me and pointed out that back on September 1, 2012, there was an arrest of a “Mershawi Berhe” from Cambridge, MA, in Portland for carrying a concealed weapon. It was reported in the local newspaper The Forecaster as part of their Police Beat section:

Unfortunately, there is not a lot we can infer from this. Regardless, despite the name misspelling, the age and place of residence is right for it to be the Howie connected to the Ruger’s chain of custody. However, I could find no evidence he was ever prosecuted for this offense, and the Portland Police Department’s website states that they do not release criminal incident reports to the public. Also, my father pointed out that “concealed weapon” could literally mean anything on his person that could be construed as a weapon: a gun, knife, baseball bat, beer bottle, and so on. I suspect whatever it was, it was not an illegal firearm, or else he would have been charged as such. Really, all this information suggests is that perhaps Howie did have a reason to be in Portland prior to the time he supposedly possessed the Ruger, although it still does not definitively link him to Icy. And, if anything, it actually takes him farther away from Stephen Silva, who testified that he was still living in Tampa, Florida until November 2012.

Where the Invisible Person Went 

By far the most interesting information that came to me through a reader was a document from Stephen Silva’s case. In it is evidence of where the mysterious “Invisible Person” — the person who, in Silva’s earlier versions of the story about the Ruger, gave him the gun in the first place — may have disappeared to. Although this reader pointed me to the document, available on the docket in Stephen Silva’s case, the inferences here are mine, so I take responsibility if this information turns out to be incorrect. However, it paints a very interesting picture of the early stages of Stephen Silva’s prosecution.

The document is a letter from the federal prosecutor in Silva’s case, Peter Levitt, to his defense attorney, Jonathan Shapiro, dated September 9, 2014. In it, specific information is given about the circumstances surrounding Silva’s arrest. If you may recall, Silva was charged with several counts of possession of heroin with intent to distribute, as well as one charge of possession of an illegal firearm, later identified as the Ruger P95 that killed Officer Sean Collier. To be clear, although this document mentions a search and seizure of Silva’s residence, it only specifies one firearm. Therefore, Silva was never found to be physically in possession of any gun — he only testified to having the Ruger P95 and lending it to Dzhokhar before the bombings because it would get him out of a lengthy prison sentence for the heroin charges.

With that in mind, let’s look closer at this document. It is a discussion of Rule 16 materials, which under federal law cover discovery from both the government and the defense’s side. In it, the government discusses the two people who were part of the controlled heroin buys — a cooperating witness and an undercover FBI agent. Telephone discussions and meetings were recorded for use as evidence against Silva:

This is information that was previously known. However, this document goes into detail about who CW-1 is:

This is important because it establishes two things: that CW-1 is the person who bought the heroin from Silva in the controlled buys, and two, that CW-1 is the only witness in the case getting benefits from the government in this case.

The benefits themselves are quite numerous. First, it is disclosed that CW-1 was once involved in a gang and his or her cooperation with the government has been helping a family member:

Next, the document details several other benefits or attempted benefits from the FBI, including “a total of approximately $66,025 with its involvement in this and other investigations”(5), getting out of a criminal charge for “speeding and driving without a license”(6), reinstating CW-1 with “a license that enabled CW-1 to drive during daylight hours”(6), and an offer “to provide CW-1 with a letter in support of its Section 8 Housing application”(6). When CW-1 was arrested for failing to pay a child support fine,  “an ATF agent called a Massachusetts Department of Revenue attorney and asked if DOR would agree to release CW-1″(6). Finally, the documents states that:

So CW-1 and his or her family is now in witness protection. This, plus the previously detailed benefits the government was giving, indicates that CW-1 was not only a highly connected gang member, but was flipping on people left and right — people who were undoubtedly bigger fish than Stephen Silva. Remember, it was stated in Silva’s 5K1 motion that the entire reason he was targeted by the government was not because of his involvement in the drug trade, but that he was a friend of Dzhokhar Tsarnaev and they wanted to tie him to Sean Collier’s murder weapon. Not only that, but the fact that Silva sold CW-1 the heroin is interesting, especially considering his statements made at Dzhokhar’s trial about why he had begun dealing harder drugs:

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. (50)

So now we must consider this: CW-1 was one of Silva’s clientele, and he or she was cooperating with the government in all manner of investigations for seemingly endless favors. CW-1 must have requested heroin from Silva knowing that it would get him pinched as part of a federal investigation. I must wonder if Silva was inclined to sell heroin before CW-1 asked for it, as a year earlier, when he still knew Dzhokhar, he was only dealing marijuana — a drug that has been decriminalized for years in Massachusetts, and was just legalized for recreational use last month. A marijuana charge is much more difficult to hold above someone’s head for leverage, as Silva himself indicates, as he does have a previous arrest for such dating back to November 2013.

On top of that, we must also consider the following paragraph in the document about CW-1:

But here’s the thing: CW-1’s identity was never disclosed, because Silva pled guilty and got a sweet deal essentially wiping away his heroin charges for testifying that he gave the Ruger to Dzhokhar. So who CW-1 is remains a mystery. Indeed, in the Rule 16 letter, prosecutor Levitt even mentions CW-1’s name had been redacted in attached documents:

Keep in mind, as well, that this document states unequivocally that no other witnesses involved in Silva’s case have criminal records or are receiving benefits from the government.

Understanding that, it is interesting to revisit the 5K1 motion for Stephen Silva. This document was also prepared by Peter Levitt, stating Silva testified truthfully at Dzhokhar’s trial, even though his testimony doesn’t match the information in said 5K1 motion. As previously discussed, Silva’s testimony states he obtained the Ruger from his friend Howie, identified outside the trial as Merhawi Berhe, while the 5K1 motion adds another person between them — a person whose name has been redacted:

With all this in mind, I can deduce a few things:

1. Biniam “Icy” Tsegai is not CW-1, nor is a family member of CW-1, as he is named here as a separate entity
2. Merhawi Berhe is not CW-1, nor is a family member of CW-1, as he is named here as a separate entity and was not arrested until March 2015, well after CW-1 and his or her family had already been relocated
3. With no one else connected to Silva’s case either possessing a criminal record or getting special protection from the government, and the fact that the Invisible Person vanishes from the narrative and is never charged for possession of the Ruger, I must consider that the Invisible Person is CW-1, or else is a family member of CW-1, and has since been relocated into witness protection.

Although I can’t say for certain this is true, the possibility makes a lot of sense. If the government had CW-1 at their disposal in a number of investigations, and were giving him or her substantial incentives to cooperate, the idea may have come up to use CW-1 as a lure to catch Stephen Silva on heroin charges — especially if CW-1 or a related person claimed they had the Ruger and passed it on to Silva. CW-1 would have had plenty of reason to cooperate regardless of the veracity of the story, as their benefits from the government could have been rescinded at their refusal. Remember, there is no physical evidence the Ruger was in any of these people’s hands; it’s all word of mouth from those with criminal records and the motivation to make deals. The relocation of CW-1 and his/her family would also explain why the Invisible Person was not available to corroborate Silva’s testimony at Dzhokhar’s trial, as it might have put the entire family in danger to reveal CW-1’s identity.

What this does not explain or excuse is why at Dzhokhar’s trial, this person vanishes from the narrative entirely and according to Silva, Howie becomes the person who actually gave him the gun. Having one witness secreted for protection does not give the government blanket immunity to suborn perjury on another witness. Notice could have easily been given to the Court to explain that the direct source of the gun to Silva was a cooperating witness and had been relocated for safety reasons, as was similarly laid out in the Rule 16 letter from Levitt to Shapiro. And likewise, Levitt’s draft of the 5K1 motion does not indicate he knew the story changed, as his version of the chain of custody includes the Invisible Person between Howie and Silva.

So while it’s still not clear what exactly happened here, Silva’s story specifically seems to change — for dubious reasons — once it gets to Dzhokhar’s prosecutors, and anyone with an interest in justice must wonder why.

You can view the entirety of the Rule 16 disclosure letter here.

Coming Up in 2017

I’d like to end this post on a “coming soon” update for what’s planned for this blog in the new year. Rest assured, although I haven’t been posting much lately, I am still hard at work on the investigation.

The Final Series on Sean Collier

As I’ve promised, my next installment of case analysis will include the final chapter on my investigation into Sean Collier’s murder. I had hoped to get this up sooner, but the further I look into it, the longer-reaching it is. So, I can’t only say that this will be one post on the topic, but perhaps several. It goes beyond Sean Collier’s death and has bigger implications for the case in general. Because of this, I want to be especially rigorous in my fact-checking and as exhaustive in my research as possible before I share the finished product. But I can promise you it’s worth the wait. I’m hoping to have those brought to you in the first months of 2017, perhaps with a week between installments for ease of digestion.

I’m Doing a Podcast?!

The other project I’ve been working on was suggested to me by a reader, and boy have I been taking it to heart. I’ve been thinking a lot lately about the importance of this case and how I could potentially bring it to a wider audience. I have mentioned it before, but I’ve been largely inspired by podcasts about criminal cases, such as Serial and Undisclosed. With that in mind, I’m devising what I’m calling a supplementary podcast — I don’t mean to have it supplant or rehash the research I am putting on this blog. Instead, I’m hoping to have a series of compelling conversations that will both provide readers with additional insight and acclimate a new but curious audience to the intricacies of the case. I’ve never done a podcast before, so it’s still very much in the trial and error stage. I’m hoping to have a short season of six-ish episodes up for consumption in first quarter 2017. I will be posting those here as well, once I figure out how to do it.

If you have any specific questions or thoughts about the case you would like to have discussed on the podcast, I welcome you to drop me a email using the contact page.

To Wrap Up…

Finally, I would like to thank all of you — every reader who has taken the time to read, like, and share posts, and everyone who has taken the time to comment and correspond with me about the case. I have almost double the number of views at the end of 2016 as the end of 2015. I still spend a large chunk of time wondering how I got so lucky to have such a smart, caring, and thoughtful readership. Two years ago today, I was dreading the start of Dzhokhar’s trial and remained convinced that whatever the outcome, my unpopular opinions about the case were uninteresting and unimportant to anyone but me. You have proved me wrong, and it’s because of your continued support that I will fight with my whole being to help Dzhokhar and tell the truth about what happened. Because in 2017, champions of truth and justice are going to be needed more than ever.

Thank you again, and Happy New Year.