The Unusual Suspects, Part 1: The Cell Phone Shuffle

Exh 811 - 07 Smashed phones & ATM card (lined up)
Exhibit 811 – The two smashed cell phones (plus Dun Meng’s debit card) discovered near the boat in which Dzhokhar was found. On top is the black iPhone 5, and on the bottom, the separated front and back of a white iPhone 4S.

Foreword

This series has been almost two years in the making. At first, I intended the information and analysis in this and subsequent posts to make up the final installment of my work on the murder of Officer Sean Collier. However, once I found a thread and pulled, more and more unraveled, in oftentimes shocking and confusing ways. I realized the implications didn’t only effect the nature of the murder of Officer Collier, but the entire bombing case at large. So I decided to hold off reporting, keep investigating, and hope I could put it all together later.

The time for that is now. Since October of 2015 I have been collecting dozens of pieces, trying to assemble them into a bigger picture. Unfortunately, as anyone with an investigative nature may note, rarely are there smoking guns to be found — instead, there are a lot of little things that don’t add up. With the current evidence available about the case, I have found a number of these anomalies, and have been trying to use them to rethink the narrative of the entire Marathon bombing, from the events on Boylston Street on April 15, 2013, to the night of Sean Collier’s murder and the carjacking of Dun Meng three days later. What will follow today and in the coming installments is my attempt to reconstruct the story using the evidence I have, as well as my previous body of work as a foundation for how I came to these conclusions.

Introduction: What We’ve Learned So Far

As I have said several times on this site, what I care about is the truth — objective, factually driven truth. In a political era bloated with lies, truth has become more important to me than ever. And what two years’ worth of research and analysis has revealed to me is that not only did Dzhokhar Tsarnaev not receive a fair trial in January to May 2015, but that he’s been wrongfully convicted: I have found no reliable evidence that he was radicalized and eager to commit terrorism as asserted by the prosecution, nor that he was present at the scene of Sean Collier’s murder, nor that he provided the gun that killed Officer Collier. Additionally, in a post and also a podcast episode, my father and I have scrutinized the government’s claims that Dzhokhar was a co-conspirator in planning the bombing with his older brother Tamerlan. We found nothing that was able to definitively link Dzhokhar to the purchasing of the bomb materials in the months before the attack — and in fact, that on the days and times of the purchases, digital forensic evidence from Dzhokhar’s cell phone placed him at UMass Dartmouth, well over an hour from the locations where said materials were bought.

All of which led me to the following question: if Dzhokhar did not have intent to commit the crimes, did not appear at Sean Collier’s car, did not provide Collier’s murder weapon, and did not help stockpile supplies and build the bombs — then what did he do?

As far as we know, he appeared at the 2013 Boston Marathon with his brother, and he set down a backpack, but he did not have a detonator. So what can I deduce he knew about the bombing plan, and when? And if I can’t figure that out, then I must wonder: did he know about the bombing at all?

One assumes he must have. One assumes you cannot carry and place an explosive without knowledge of it. That would be supremely unlikely; it might even be idiotic, and Dzhokhar isn’t stupid. But as the old adage from Sherlock Holmes goes, once you rule out the impossible, whatever remains, however improbable, must be true. And I thought it could be perfectly reasonable to carry an item for a family member without asking what’s inside. I’ve done it plenty myself. I’m not going to suspect my mother has put a bomb in the grocery bags. Why should a teenager suspect otherwise of his brother, especially one he doesn’t see much anymore, being away at college?

So over the course of my research, I decided to engage in a process of elimination, using the timeline laid out by the prosecution. If I could pin down evidence that Dzhokhar knew about the plan of attack and aided in its furtherance, well, experiment over. I started with the claim that his radicalization had spanned years back to high school sometime around 2011, but that didn’t pan out — Tweets about celebrating Ramadan don’t a terrorist make. Nor did it seem like Dzhokhar spent any time perusing the “jihadist materials” given to him by Tamerlan — FBI reports showed the “last access” date and time to be the same as the download date and time, suggesting he never opened them at all. Interestingly, earlier this year I discovered that the prosecution’s expert witness who claimed social factors contributed to Dzhokhar’s radicalization is none other than Sebastian Gorka, a now-infamous “counter-terrorism” adviser to President Trump who has been decried by experts as a shoddy academic with questionable credentials. He was revealed have been fired by the FBI for his anti-Muslim views, and discovered to be a member of a pro-Nazi far-right group in Hungary. He was unable to gain a security clearance for his job as presidential adviser, which echoes an earlier move by the Hungarian government in 2002 — one official referred to him as “a peddler of snake oil,” according to BuzzFeed News.

Unable to rely on the asserted starting point for Dzhokhar’s radicalization, I then tried to trace the Ruger P95 from its legal purchase in Maine to Dzhokhar’s hands via former friend Stephen Silva “sometime in February 2013.” But I couldn’t nail that down, either; there were too many inconsistent statements from Silva, who had a strong incentive to testify: he was facing potential life in prison for heroin charges. No one else testified to corroborate his story, even though several witnesses should have been available to do so. Finally, I could not confirm Dzhokhar been present for bomb material purchases by Tamerlan in January and March 2013, which left only about a month until the bombing.

Working out a comprehensive timeline was made more difficult by the prosecution’s lack of offering a single communication between Dzhokhar and Tamerlan in the months preceding the bombing: no email, no text, no phone call. This has always struck me as supremely odd for two people who were living 70 miles apart — Tamerlan in Cambridge and Dzhokhar at UMass Dartmouth — who ostensibly had to schedule a lot of meetings to plan a strategy and construct IEDs. Likewise, none of the fingerprints found on the bombs or their components matched Dzhokhar.

So no radicalization, no gun-fetching, no buying bomb components, no communications, no fingerprints. Which brings me to April 14, 2013, the day before the bombing, and the final piece of evidence the government offered to prove Dzhokhar’s involvement in the conspiracy: a cell phone.

It’s this phone that would become the key to everything. It would simply take me many, many months to figure out why.

The Accusation

Here is the accusation put forth by the prosecution: that in order to further the bombing conspiracy, on April 14, 2013, Dzhokhar purchased a phone and a pre-paid account through T-Mobile under the alias “Jahar Tsarni.” It was this phone that was then used to coordinate the attack with Tamerlan the following day. Because of this, the government implied, Dzhokhar is guilty of conspiracy. This was established in large part because of two cell phones that were recovered from near the boat where Dzhokhar was captured on Watertown’s Franklin Street: a white iPhone 4S and a black iPhone 5. One was registered to “Jahar Tsarnaev” through the carrier AT&T and the second to “Jahar Tsarni” through a prepaid T-Mobile account. (There was also a third cell phone recovered, an HTC model registered to Tamerlan Tsarnaev, which was found in a computer bag on Laurel Street near the shootout scene, but we’ll be getting to that later.)

Before we analyze these assertions and their factual basis, a reminder about conspiracy charges, as stated by my father, Attorney Tom Frizzell: in order to prove a person is a co-conspirator in a crime, it must be proven that he 1) had knowledge of the planned crime, 2) consented to be involved, and 3) acted to further the plan. The prosecution’s previous claims of Dzhokhar’s involvement in the conspiracy — obtaining the Ruger P95 and joining Tamerlan in purchasing the bomb materials — have not been supported by the available evidence. The phone is their last claim about Dzhokhar’s actions in furthering the bombing plot. Does the evidence back them up?

At first glance, the answer could very well be yes. The available cell phone evidence does in fact bear out some of these claims. The account purchased on April 14th does bear the name “Jahar Tsarni” and the birthday on the account matches Dzhokhar’s: 7/22/1993. In addition, the call log data does list calls between the Jahar Tsarni phone and a phone registered under the name “Tamerlan Tsarnaev” immediately preceding and following the blasts near the Marathon finish line that occurred around 2:50 p.m. The report filed by government witness and FBI analyst Chad Fitzgerald plots out the location of the cell phone towers pinged by the Jahar Tsarni phone and the Tamerlan Tsarnaev phone, and places them on Boylston Street near the finish line. Explanation of cell phone technology can be both complex and tedious, so I will be getting into the weeds on what call log data and cell tower pings mean in my next post, but for the moment, consider: all of this indicates that said phones were in those approximate locations at the times listed, which bookended the explosions at 2:50 p.m.

On an important note, it is impossible to know the content of these calls, just the duration, and who called whom. According to the call log, the Jahar Tsarni phone contacted the Tamerlan Tsarnaev phone shortly before the first bomb went off. By the prosecution’s narrative, this was Dzhokhar calling Tamerlan to signal that he should detonate. However, there is no way to know this for certain, as there is no recording of the call. Regardless, the government used guesswork to present this as evidence that Dzhokhar had “initiated” the attack, and thus was independently involved in the bombing, instead of under the control of his brother. In the opening statements of the guilt phase, prosecutor Bill Weinreb said as much:

Then when the defendant had given his brother, Tamerlan, enough time to get into place, he called Tamerlan on the phone and spoke to him for about 20 seconds. About ten seconds later, Tamerlan detonated his bomb. A few seconds after that, the defendant walked briskly back the way he had come, leaving his own bomb behind him on the ground. When he was a safe distance away, he detonated the bomb by remote control. (25)

These details aside — especially the fallacious statement that Dzhokhar detonated the explosive himself when there was evidence of only one detonator containing Tamerlan’s prints — the presentation of the phone call as evidence that Dzhokhar co-ordinated the attack always bothered me. While the defense on cross-examination split hairs on the reliability of the call log data, I was pondering a more obvious question: why would anyone buy an iPhone to facilitate crime?

Like so many aspects of this case, trying to figure this out sent me down a rabbit hole that revealed nothing is what it seems.

The Phone(s?) in Question

i5i4svs_dimensions
A tech spec comparison of the older model iPhone 4S (right) and newer iPhone 5 (left), both black. Source: Geek.com

In order to fully understand the evidence I’m about to discuss, I need to give you a crash course on how cell phones work. Most of us in this day and age have one, so consider this: you turn on your cell phone, and you want to send a text, make a call, or, if you have a smart phone, check your email, use an app, or browse the internet. Your phone is the tool to do all of these things, but it cannot do any of it without something called a SIM card. A SIM card contains all the technical aspects of a cell phone account: the phone number you give out to relatives and friends, the name on your bill, the content of your text messages, and so on. Without a SIM card, a cell phone is useless. My dad described it a bit like a firearm — you can buy a gun, but nothing’s going to happen if you don’t buy ammo for it. The SIM card is the ammo. Usually, a cell phone and a SIM card are sold together through a cell phone carrier — in the US, the major carriers are AT&T, Verizon, Sprint and T-Mobile. Once you are set up through one of these carriers, they are the company that bills you for using the phone and the account. However, there are variations on this that we will get into in a few minutes.

With that in mind, this is what the prosecution implied about Dzhokhar: despite having a viable iPhone and account through AT&T, he opted to buy another iPhone and another account through T-Mobile. He did this in order to coordinate the Marathon bombing with his brother. The government asserted this without any consideration to the cost or practicality of this setup. This is what I wanted to look into, to see how logical it would be for someone to do.

In trying to verify it, things got confusing fast. To start off, despite looking through the exhibits and transcripts, I was unable to pin down which phone model of Dzhokhar’s was registered to which account. Here is an exchange between FBI analyst Kevin Swindon and prosecutor Aloke Chakravarty about the identity of the phones:

Q. Go on to [Exhibit] 1151. What is that?
A. 1151 is one CD containing the reports for 2W1 and 2W2, which is an iPhone 4s and an iPhone 5, from Watertown, on Franklin Street. (114-115)

However, this is what Swindon had to say about one of the SIM cards recovered from those phones:

Q. Is this the phone number here?
A. Yes.
Q. 617-286-9151?
A. With this SIM card, yes.
Q. Do you know that to be the phone that was subscribed to by Jahar Tsarni on April 14, 2013?
A. I don’t have that information here in front of me.
Q. Is that one of the two phones that was subscribed to Jahar Tsarni?
A. Yes. (118)

This phone number — ending in 9151 — is attributed to the “Jahar Tsarni” account opened on April 14th, and is the number that was in contact with Tamerlan Tsarnaev’s phone directly before and after the bombing on April 15th. According to the call log, these calls happened at 2:49 p.m., 2:51 p.m., and again at 2:53 p.m. Like I said, however, there is no attempt to link this account specifically to the white iPhone 4S or the black iPhone 5, pictured at the top of this post, just that one was in one phone and was was in the other. Regardless, Swindon and Chakravarty do confirm that this was not Dzhokhar’s main telephone number:

Q. Clicking on the report, is this the SIM card extraction report for 2W2, the other phone?
A. Yes.
Q. Does this show both the unique ICC ID number —
A. For that SIM card, yes.
Q. — as well as the phone number?
A. Yes.
Q. Is the phone number here 857-247-5112?
A. Yes.
Q. Is that the same number that was on the defendant’s resume?
A. Yes. (119)

The AT&T account with the number ending in 5112 was Dzhokhar’s primary line — we can see that because that he had it listed on his résumé. Regardless, this still gives us no information about which SIM card was inserted in which phone when they were found on Franklin Street.

But Heather, you say, if both SIM cards were in the phones found near Dzhokhar’s hiding place, we know they have to be his. Why does it matter which SIM card was inserted into which iPhone?

It matters because it’s weird for a college student to have two simultaneous cell phone accounts. It was so weird to the prosecution that they decided one of them had to have been purchased with the intent to commit terrorism. I wanted to know if there was any possible mundane explanation, but I couldn’t even pin down which phone was bought when — something that should have been easy to confirm with a receipt or a bank statement from Dzhokhar.

The differing models of iPhones are equally important. The iPhone 4S is an older, smaller model phone. It was first put on the market in October 2011. However, the newer, faster iPhone 5 was introduced by Apple in September 2012. Knowing which model Dzhokhar owned first could help me deduce a number of things: for instance, how long he might have had left on his contract with AT&T, and whether he might have been interested in upgrading to a better phone the weekend of the bombing. Since most people are constantly switching out old cell phones for new ones, an observer might think it was obvious he had to have owned the older iPhone 4S first.

I thought so too, until I looked closer at the transcripts.

The Cell Phone Shuffle Begins

During testimony of their cell phone expert on March 11, 2015, FBI Agent Chad Fitzgerald, both he and prosecutor Aloke Chakravarty allude to the “Jahar Tsarni phone” as a phone purchased through T-Mobile on April 14, 2013. Here is just one instance of many:

Q. So at 2:49, is that the first call contact between the two phones, the one — the new T-Mobile phone that was subscribed to by Jahar Tsarni and the T-Mobile phone that was subscribed to by Tamerlan Tsarnaev?
A. Right. I believe it was the first — if I remember correctly, it was the first call of the day, even. (94)

This is a fairly reasonable assumption. As I said, usually phones and SIM cards are sold together. It’s also an obvious assumption that this purchase was an iPhone 5. The 5 was the new model at the time, and for a rather small window — it was only the “new” model in stores between September 2012 and September 2013, before being replaced by the identical-looking but slightly more advanced iPhone 5S (which I happen to own myself). Additionally, the iPhone 5 wasn’t cheap: I found prices listing them with contract at a range of $199, $299, or $399, depending on the storage model. That means there was a discount on the phone price through carriers like AT&T and Verizon, but it would lock the user into a 2-year contract of a certain monthly charge. If the user wanted to leave the service, he or she would be required to pay a hefty early termination fee.

With T-Mobile, however, there were other options. One was the same system as described above, called a “post-paid” system, but the other, as far as major US carriers go, was unique to T-Mobile at the time: a pay-as-you-go or “pre-paid” plan. However, this came at a steep cost. You had to buy the phone nearly at full price — press releases put the iPhone 5 at $579. However, on April 12, 2013, two days before the purchase we’re looking at, not only did T-Mobile put the iPhone 5 in stores, but it introduced a new “Uncarrier” plan, doing away with all phone contracts. It also offered a deal in which the user could buy an iPhone 5, pay $99 for it upfront, and then pay off the rest of the phone for $20 monthly installments over the next 24-months — in addition to refilling the account on your own. However, this “locks” the phone to the T-Mobile carrier until the amount is paid off. This is a popular system used with cell phone carriers to insure that users don’t buy the phone at a discount price, then dump their carrier and sign up for a plan with someone else.

So maybe Dzhokhar decided to jump on the new iPhone 5 deal.  Sounds great, right? Sounds logical.

Unfortunately, it’s wrong. Dzhokhar did not buy an iPhone 5 at T-Mobile that day. How do I know this? Well, some receipts, a bank statement, or some surveillance footage in the store would have been helpful. Instead, I had to make due with inference. Despite Agent Fitzgerald and prosecutor Chakravarty chatting as if the phone had been purchased in the T-Mobile store on April 14th, much later, on March 30th, 2015, the prosecutors call a witness, Michelle Gamble. She’s an FBI field photographer who testified about, among other things, the T-Mobile purchase. Here is what was said between her and Bill Weinreb:

Q. Ms. Gamble, can you describe what this document is?
A. Sure. It’s a T-Mobile receipt, and it appears to be for a micro SIM plug, electronic pin, and a SIM starter kit.
Q. And a SIM card, what is that?
A. A SIM card would be something that you would put in a phone. You could also use it, I believe, for a camera.
Q. And does a SIM card in a phone bring a unique phone number with it?
A. Yes.
Q. And what — who does it say is the purchaser of the SIM card?
A. Jahar Tsarni.
Q. And the date and time on which it was purchased?
A. 4/14/2013 at 17:59:50.
Q. And in non-military time, what’s that?
A. It is, let’s see, almost six o’clock.
Q. 6 p.m.?
A. Yes.
Q. Where was it purchased?
A. 100 Cambridge Side Place in Cambridge.
Q. And the mobile phone number associated with it?
A. Is (617) 286-9151.
Q. And there’s a prepaid activation?
A. Yes.
Q. So it was purchased and activated the day before the marathon bombings?
A. Yes. (32-33)

A SIM card. No mention of a phone. Ammo, but no gun.

Frustratingly, I don’t have this exhibit in my archives, so I can’t take a closer look at this receipt. However, if one looks at the time of the purchase — 5:59:50 seconds p.m., and the first activity on the call log in Exhibit 3001 for what we’ll call the Jahar Tsarni phone:

3001-excerpt

As explained by Fitzgerald, text messages (called “SMS” here) from T-Mobile are always listed in Pacific Standard Time. So if we do the math, this means the first activity on the phone was at 6:03 p.m., only three minutes after the SIM card purchase. Obviously, the phone and the SIM card had to have been in the same place at the same time to account for this. I can only deduce two possibilities:

  1. The Jahar Tsarni phone was also purchased at T-Mobile, and for some reason was not mentioned on the record during Ms. Gamble’s testimony.
  2. The phone was obtained elsewhere, but before the SIM card purchase, so that it was readily available to put the SIM card into.

The prosecutors certainly seemed to have leaned on the first possibility. Besides calling it the “Jahar Tsarni phone” or “new T-Mobile phone,” they don’t even try to offer an alternate explanation. This was, to say the least, distressing to me. We now potentially have a phone that was obtained with the asserted intent to commit a heinous crime, but apparently the government had no interest in finding out where the physical phone came from?

Well, I tried to reason, maybe it’s not that big a deal. Although it was not explained on the record at trial, the address listed on the T-Mobile purchase is actually an entire mall — a large, upscale mall called the Cambridgeside Galleria. The Galleria doesn’t only have a T-Mobile store, but an Apple store and a Best Buy. Maybe the phone was purchased at one of those locations, sure, even though we have no receipts to show for it. But that seems unlikely. At Best Buy and the Apple store, an unlocked iPhone 5 would have been more expensive than at T-Mobile — $649 instead of $579, and with a number of technical limitations for not buying through T-Mobile.

At which point, there’s a matter of pragmatism to be considered here. Namely, that Dzhokhar wasn’t exactly flush with cash. At the time of his arrest, he had $953 in his bank account, and I’ve seen no evidence he had money stuffed in a mattress somewhere. That’s a lot to be dropping on a phone when there was a cost-effective alternative right there (the $99 down + $20 monthly payments) that T-Mobile could have told him about.

And then there’s the evidence that the phone he already had, the one through AT&T with the last four digits 5112, was actually the iPhone 5.

Wait, What? 

Yeah, that was my reaction, too. In fact, at first, I was so confused by the available evidence that I thought there were two identical iPhone 5 devices. But no, it is very clearly stated by the FBI forensic analyst that the two phones found near the boat in Watertown were a black iPhone 5 and a white iPhone 4S, and despite not specifying which one was which, the two numbers from their SIM cards matched the AT&T Jahar Tsarnaev account (857-247-5112) and the T-Mobile Jahar Tsarni account (617-286-9151). It’s also impossible to have obtained any data from the Jahar Tsarni account before it was activated on April 14th at 6:03 p.m. Therefore, any other cell phone evidence presented from Dzhokhar’s phone must match the account and model he owned prior to April 14th.

With that in mind, in the exhibits about the text messages recovered from cell phone backups on his laptop, there is this information:

exh_1395-1Acopy
Excerpts from Exhibits 1388A and 1395-1A – compiled and highlighted by me

Likewise, the FBI forensic analyst who obtained these text messages, Kevin Swindon, noted to prosecutor Chakravarty that he was able to pull them from Dzhokhar’s computer because an iPhone had been plugged in and synced to the laptop, which automatically stored backups:

Q. With regards to this Mobilsync backup, I had asked you a little bit on Thursday with regards to whether you were able to identify which phone actually produced those text messages. I should say which phone had synced with the laptop that resulted in those text messages going over to the laptop. Were you able to determine that?
A. Yes. With the exception of [Exhibit] 1385, the messages were included in the iPhone 5 backup. (9)

Furthermore, he doesn’t mention an iPhone 4S, which implies the 4S model was never plugged into Dzhokhar’s laptop at all.

Finally, on April 12, 2013, Magomed Dolakov, an acquaintance of Tamerlan who accompanied him and Dzhokhar to the gym that day, said in his statement to the FBI that he noticed the kind of phone Dzhokhar had:

(As read:) After they were finished working out, Tamerlan went to take a shower. While Tamerlan was in the shower, Dolakov saw that Dzhokhar was using an iPhone 5. (144)

If the new phone was actually the iPhone 5, it would have been impossible for Dzhokhar to use it on April 12th — the SIM card to activate it wouldn’t be bought for another two days. So it seems his pre-existing phone was the iPhone 5, and he opted, for some reason, to downgrade to a 4S for the “Jahar Tsarni” phone account.

Well, one might reason, if we consider the Jahar Tsarni phone was meant to only be used as an instrument of terrorism, the 4S was an older and likely cheaper model. Isn’t that what criminals opt for when they buy “burner” phones? Besides, why else would he get a different phone account and put an alias on it? Because “Jahar Tsarni” is an alias meant to trick people, right?

I would argue that’s certainly what the government wants us to believe, but it’s not exactly correct.

Who is Jahar Tsarni? 

For anyone who has reviewed court transcripts of this case, one header is unavoidable:

transcriptheader

I have long found this confounding, as it has always seemed to me that by listing this name, the court system was asserting that Jahar Tsarni is a known alias of Dzhokhar Tsarnaev. However, with the exception of the T-Mobile account name, the government made no claims that “Jahar Tsarni” was a new identity Dzhokhar tried to assume. I have found no evidence for that supposition, either: while I have seen many instances in which Dzhokhar preferred to spell his name “Jahar” — on his Twitter account and email addresses, for instance — none showed a similar shift to “Tsarni.” Everything bearing his last name, including official college documents through UMass Dartmouth, reflected Tsarnaev. So it is worth asking where the Court thinks Dzhokhar was trying to pass off this alias, and to whom.

It’s also a somewhat disingenuous premise to consider Jahar Tsarni an alias in the first place. “Jahar” is simply an anglicized, phonetic spelling of “Dzhokhar” — which, admittedly, in English resembles a key smash more than it does a name. Even certain court reporters in the transcripts opted to spell his name as Jahar. Likewise, Tsarni isn’t an entirely new name: it’s the original Chechen iteration of Tsarnaev, which added the “-ev” suffix. This Russification of surnames is widespread in the Caucasus and Central Asian regions that were put under Russian control in the 19th century. Parts of Dzhokhar’s family, including an uncle named Ruslan living in Maryland, opted to switch the spelling from Tsarnaev to Tsarni. During the penalty phase, this was explained by Dzhokhar’s ex-brother-in-law Elmirza Khozhugov to defense attorney Judy Clarke:

Q. I notice that you refer to Ruslan as Ruslan Tsarni, and I’m referring to the Tsarnaev family. Can you tell the jury the difference between the name Tsarnaev and Tsarni?
A. The difference is that Ruslan has decided to de-Russify his last name, basically take out the two last letters of his last name to make it sound more Chechen rather than more Russian.
Q. So Tsarnaev is the Russian version of Tsarni?
A. Yes. (17-18)

That said, Dzhokhar’s legal name is Tsarnaev, and there was no attempt made on his part to change that — aside from the name on the account purchased on April 14th.

Is that even possible, you ask? Wouldn’t he have been required to put his legal name on his cell phone account, and this “Jahar Tsarni” business is evidence that, clearly, there was something he was trying to hide (like aiding terrorism)?

The answer to that, in fact, is a resounding no.

How to do I know this? Well, on a common sense level, choosing “Jahar Tsarni” as an alias for crime would imply Dzhokhar lacked imagination for the very acts he deigned to participate in: he was already documented on social media and known to friends and teachers as “Jahar,” and Tsarni is only three letters off from Tsarnaev. The notion that law enforcement would be unable to trace his new cell phone account by putting it under that name is patently absurd. Perhaps there are criminals out there who are that stupid, but as I’ve said — Dzhokhar has been well-documented as having above average intelligence.

But mostly, I know because I went to the T-Mobile store where the SIM card was purchased and asked.

T-Mobile’s Side of the Story

cambridgesidegalleria
The entrance to the Cambridgeside Galleria in directly opposite the T-Mobile store where the SIM card for the Jahar Tsarni phone was purchased. Photo taken by me in October 2015.

In October 2015, puzzled by the cell phone evidence as presented by the prosecutors, I paid a visit to the T-Mobile location responsible for the purchase of the Jahar Tsarni account and SIM card. I spoke to an employee there and learned some interesting things. First, the employee confirmed for me that the name put on the account is not required to match your legal name – users signing up need to show no identification to prove who they are, and can put any name on the account. The employee specifically told me, “It doesn’t even have to be your name.” In fact, he said, if you don’t want to provide a name, they’ll give you a random one.

Once I had probably convinced him I was interested in doing drug deals, we talked a bit about payment. When you open an account, you are required to pre-pay for one month. You can do this a number of ways: either in the store with cash, in the store with a credit card, or online with a credit card.

Finally, I thanked him and took stock of the surroundings. The Cambridgeside Galleria is a big, high-end mall, and the T-Mobile store is actually a kiosk in the middle of a corridor near the food court, and mere feet from an entrance to the mall. The easiest way to exit the mall after visiting the T-Mobile store would be to simply go out those doors (pictured above), and there was an obviously placed security camera on the top left column.

To re-cap, the only evidence the government showed to tie the SIM card purchase to Dzhokhar is the receipt for the SIM card and also Exhibit 1170, showing the subscriber information that lists the name “Jahar Tsarni” and his birthday. However, the T-Mobile employee demonstrated to me that a name on the account cannot prove that person opened the account himself, and there’s surely more people out there than just Dzhokhar who knew his birthday. Finally, the government showed no bank statements or surveillance footage to prove that the purchase was made specifically by Dzhokhar. Even if the purchase was made in cash, the nearest exit had a security camera, and it’s rational to consider that other parts of the property did as well. Why then was no footage shown of Dzhokhar entering or leaving the mall?

But Heather, you say, while all of that may be possible, shouldn’t you consider some practicalities? Like who else would go out and buy a SIM card (and an iPhone 4S from a currently unknown source) with Dzhokhar’s name and birthday on the account? And why?

Excellent questions. I have some thoughts about them.

The Cell Phone Shuffle 2: Electric Bugaloo 

Exh 948-525
Exhibit 948-525 – A computer bag with Tamerlan’s HTC model cell phone, a hard drive, and a bomb detonator.

Remember, when it comes to the events of the bombing, that there are actually three cell phones in play. Aside from the two phones attributed to Dzhokhar, the third is Tamerlan’s phone – the one that communicated with the Jahar Tsarni phone directly before and after the bombing. While the prosecutors implied Dzhokhar purchased an iPhone for the sole intent of coordinating the attacks, they made no such claims about Tamerlan. In fact, Tamerlan only had one cell phone, an HTC model, and he’d had his own prepaid T-Mobile account for nine months, since he had returned from Russia in July 2012. So, in essence, the prosecutors accused Dzhokhar of buying a “burner” phone to cover his participation in the attacks — but, for some reason, his brother and co-conspirator demonstrated no such caution. That simply makes no sense. If they were conspiring together, wouldn’t they both get disposable phones? Why is Dzhokhar the only sneaky one?

Additionally, Tamerlan’s phone was also on a prepaid plan through T-Mobile. The government exhibit of the subscriber reports shows Tamerlan’s own account had been refilled with funds the same day the Jahar Tsarni account was activated, April 14th. It seems like a pretty big coincidence that one brother already had a pre-paid T-Mobile account, refilled it independently, and then the other opened the same kind of account without any communication between them — especially when we know that Dzhokhar was home from college that weekend. Perhaps Dzhokhar got the phone and SIM card on his own, and it simply happened to remind Tamerlan to refill his own account the same day. Still, that doesn’t account for the lack of evidence showing Dzhokhar made the purchase.

On the contrary, there are a few facts that suggest Tamerlan may have actually bought the phone and the SIM card for Dzhokhar.

Why do I think Tamerlan may have been the true buyer of these items? Well, aside from the definitive lack of evidence that it was Dzhokhar, first we have to consider the price of the phone. Despite the iPhone 4S being an older model, it wasn’t exactly much cheaper. The same article I found covering T-Mobile’s sale of the 5 also mentions the 4S: “the iPhone 4S will cost $69.99 down plus $20 per month” — which, if we apply the same 24-month timeframe to the deal for the 5, would amount to a total of $550, only $29 less than the iPhone 5. (It also states the 4S would be restricted to “select markets,” meaning it might not have been readily available in T-Mobile stores at that point in time at all.)

Additionally, if Dzhokhar already owned an iPhone 5, it can’t have been more than 7 months old in April 2013, considering they weren’t put on the market until September 2012. With the AT&T contract that Dzhokhar had, I saw iPhone 5 devices going for $199, $299, or $399, depending on the storage model of the phone. So here’s a very new phone that he’d probably already paid a chunk of money for, and he’s going to buy another at almost the same price? That’s strangely decadent behavior, and Dzhokhar was far from rich.

Even the idea that the iPhone 4S could function as a “burner” phone isn’t a sound one. If Dzhokhar wanted to purchase a phone only for coordinating an attack by phone call, why go to all the trouble of buying an expensive smartphone at all? I checked for cheaper alternatives and found several. A New York Times article published in October 2013 notes:

More basic no-contract options, called pay-as-you-go plans, are available at retailers like Walmart, Target and Best Buy. With these options, you buy a phone and then add services as needed. Many of the phones have basic features, with an emphasis on cost savings. … The Net10 Samsung S275G, a flip phone with a camera, is $19.88. A prepaid card with 300 minutes of talk and Web — or 600 text messages — is $29.88 for a 60-day period of service.

If Dzhokhar didn’t care about surfing the internet or using his email — neither of which would come into play while committing terrorism, one assumes — why not just buy a phone like this? That’s $50 total. Also, a flip phone wouldn’t have all the high-tech trappings of an iPhone — no GPS location, for instance, that you’d think might concern someone who could be tracked by the authorities.

However, it has been previously discussed that Tamerlan had a puzzling amount of disposable income, despite holding no apparent job. For example, he was able to fund a six-month trip to Russia, and according to FBI 302s from Magomed Dolakov read during the penalty phase: “Dolakov once asked Tamerlan if he was working. Tamerlan advised that ‘Allah sent him money'”(135). Since it has never been proven that the divine can manifest wealth, one must wonder what Tamerlan’s statement might be code for. There’s also evidence that Tamerlan was, at least at one time, involved in the drug trade.

Whatever the reason, Tamerlan seemed far wealthier than Dzhokhar. So much so that one wonders whether he might have given Dzhokhar money for the additional iPhone — or perhaps bought it for him outright. Evidence was already shown that Tamerlan was out on April 14th alone, buying two backpacks at a Target in Watertown, one of which was used in the bombing, and the other that housed a third undetonated pressure cooker found at the shootout scene, also in Watertown. The Cambridgeside Galleria is close to the Tsarnaev family Norfolk Street residence, so perhaps Dzhokhar went out on his own, but it’s also possible Tamerlan stopped by the Galleria as part of his errands. Since you can add funds in the store, he could have easily opened the new account, then pre-paid for both the Jahar Tsarni one and his own, which would explain the identical refill date on the subscriber information. It’s also reasonable to think he knew his brother’s date of birth, and was able to put it on the paperwork for him.

But the most compelling evidence for the purchase coming from Tamerlan is in the name on the account. As I previously stated, the use of the name “Jahar Tsarni” always struck me as odd, considering Dzhokhar never showed interest in switching to “Tsarni” as a surname. However, there is evidence that Tamerlan did: a report summarizing the intelligence provided to the FBI from the Russian FSB service about Tamerlan noted this. Excerpts of this report were later read at trial. From the Exhibit 3204A:

According to thEnglish translation used by the FBI, the memorandum alleged that both [Tamerlan and his mother] were adherents of radical Islam, and that Tamerlan Tsarnaev was preparing to travel to Russia to join unspecified “bandit underground groups” in Dagestan and Chechnya and had considered changing his last name to “Tsarni.” (7-8)

So Tamerlan had been documented as wanting to change his name to Tsarni. If he had been in charge of the purchase, it’s possible he did some judicious editing of his brother’s name as well — since it didn’t matter which one appeared on the account.

Of course, that’s all well and good, you say, but in the long run, who cares which brother bought the phone, where it came from, or why it was an older model than the one Dzhokhar already owned? It’s clear that Dzhokhar used it the day of the bombing, and even if Tamerlan bought it for him, what’s that matter? Obviously Dzhokhar had no other reason to need a new phone account, whatever model was attached to it, other than to conceal his actions at the Boston Marathon.

I thought so too. Until I looked back at the transcripts, and realized I was wrong.

Dzhokhar had a reason completely unrelated to terrorism to want a new phone account. It was even admitted by the government’s FBI cell phone analyst witness on the stand, though given suspiciously little attention after that.

Spotlight: FBI Agent Chad Fitzgerald 

FBI_WEB.max-656x369
In 2015, a number of Atlanta-based FBI agents received a medal of valor, Chad Fitzgerald, second from left, among them, for an unrelated case.

On March 11, 2015, the prosecution called Special Agent Chad Fitzgerald to the stand in order to testify about the cell phone evidence. Although it seemed a bit tedious at the time, in the months after the trial I became interested in what the forensic cell phone data could tell us.

I felt this way, in large part, because of the popular podcast Serial, which had aired in late 2014, about a potential wrongful conviction case. If you’re not familiar with the show, it covered the case of Adnan Syed, a 17-year-old Pakistani-American from Baltimore county who had been arrested in 1999 for the murder of his ex-girlfriend, Hae Min Lee. Despite being convicted and sentenced to life in prison, Adnan consistently maintains his innocence to this day. Listening to Serial and noting the many aspects of evidential discrepancies, witness inconsistencies, and some outright Muslim prejudice from the prosecutors primed me in many ways for Dzhokhar’s trial, which began only a couple weeks after Serial‘s final episode aired. The show focused a lot on the cell tower pings from Adnan’s cell phone the day Hae Min Lee was murdered — and explored how the prosecutors had misrepresented the technology at the time to make a number of erroneous assertions about where Adnan was at the time Hae Min Lee’s body was buried.

I will admit right now: cell phone data is complicated and confusing. I’ve gone over the transcripts and the available FBI report several times, and each time I find something I missed earlier. I initially looked at it around the same time I visited the T-Mobile store, in October 2015, and came away more confused than I had been prior. But for the most part, Agent Fitzgerald seemed knowledgeable enough, and the report reflected what he had testified to. I decided to let the cell phone evidence sit for awhile, and focus on other parts of the case that were easier to understand.

Then, in early 2016, something remarkable happened.

Ever since Serial aired, I had been following developments in Adnan Syed’s appeal. The success of the podcast had skyrocketed attention to the case and crowdsourced capable attorneys who discovered crucial evidence that Adnan’s appellate lawyer was able to use in court. In February 2016, he was granted a post-conviction hearing that would focus on, among other things, the reliability of the cell phone evidence that had been brought against him. It had been raised that the prosecutors had used faulty technology and unreliable readouts to come to their conclusions, and the original state witness for the cell phone evidence filed an affidavit saying that had he known more information at the time, he would not have testified in support of the state’s claims.

I bring all this up because to my shock, to counter the defense’s claims about the cell phone evidence, the state prosecutor called FBI Agent Chad Fitzgerald to testify — the very same man who had taken the stand for the government in Dzhokhar’s trial. Not only that, but he had a notoriously bad showing that received significant media attention. According to British newspaper The Guardian:

The proceedings began dramatically with FBI special agent Chad Fitzgerald claiming that Syed’s defense had given him “manipulated evidence” in order to throw off his testimony. “I figured out what you were doing,” Fitzgerald said to C Justin Brown, Syed’s attorney. “You got caught in your game.”

Brown, however, countered that claim by asking if it would surprise Fitzgerald to learn that the “manipulated” copy of the phone records in question “was the only version of that document Christina Gutierrez [Syed’s trial defense lawyer] had”.

“I would be shocked,” Fitzgerald responded.

“It would be shocking, wouldn’t it?” Brown rejoined and went on to suggest that if Fitzgerald, one of the foremost cell tower analysts in the country, couldn’t understand the document, there would be no way that Gutierrez could have.

This heated exchange also caused Colin Miller, a law professor who had been studying and reporting on the case, to ruminate on his Evidence Prof blog:

This is a very interesting claim, given that Brown presumably was showing Fitzgerald the records that the State had turned over to Cristina Gutierrez back in 1999. What’s interesting is that the heart of Adnan’s current Brady claim is that the State gave the defense confusing/misleading/Frankensteinian copies of Adnan’s cell phone/tower records, making it so that Gutierrez didn’t realize she had a viable Frye objection.

Therefore, if the reporting of Brown’s cross-examination of Fitzgerald is accurate, he might have just proven the defense’s case.

Fitzgerald was also slammed by onlookers for sticking to the prosecution’s claim that the cell phone data from 1999 was accurate, even in the face of apparent contradictory evidence. In one instance, Fitzgerald insisted the cell tower data had to accurately show Adnan’s location, despite two calls coming in 27 minutes apart pinging towers that, due to the layout of the roads, would have taken Adnan an hour to reach by car. In an opinion piece summing up the content of the hearing, journalist Amelia McDonell-Parry said:

The most astonishing thing to me about Fitzgerald’s testimony was the way he evaded answering the defense’s questions unless his answers would have benefited the State’s case. Even the most basic questions could not get a direct response. It was glaringly obvious that Fitzgerald was asked to testify not to the TRUTH, but to what the State had already decided was true. We’re talking about an FBI agent who devotes a large chunk of his working hours to testifying in cases like this — how frequently is the content of his testimony influenced by the State’s desired outcome? Just once is enough to be utterly reprehensible. The likelihood that this has happened more than once absolutely terrifies me.

It worried me, too. So much so that I decided to go back to Fitzgerald’s cell phone testimony in Dzhokhar’s case and study it with a more critical eye.

(For the record — in June 2016, the judge presiding over Adnan Syed’s post-conviction hearing did not find the State’s claims credible: he ruled in favor of the defense and overturned Adnan’s convictions. He is currently still incarcerated, awaiting a decision about whether the state of Maryland will opt to re-prosecute.)

Anomalies in the Data

I’ve gone over and over the cell phone evidence, in the trial transcript testimony of Chad Fitzgerald, as well as his report submitted as an exhibit. Over time, my initial opinion held: what he testified to seems sound. He also never became belligerent or was obviously towing a company line, the way he seemed to be at Adnan Syed’s appellate hearing. But the more I looked, the more I noticed cracks in the veneer. It isn’t so much what Fitzgerald testified to, but what he didn’t that stood outThere are several instances when pieces of information — which seem like they could be important — got glossed over by the prosecution. In this post and the next, I will be trying to make sense of these anomalies.

The first omission isn’t explicitly Fitzgerald’s fault. He was there to testify to cell tower pings and what they could say about the location of the phone users on the day of the bombing and afterward. It does, however, address the biggest question I had about the Jahar Tsarni phone purchase: did Dzhokhar have a reason — excluding the the planning and participation in the attacks — to get a new phone account?

During direct examination with Aloke Chakravarty, Fitzgerald had this to say about Dzhokhar’s iPhone 5, the one on contract with AT&T:

Q. Now, on this page, is this a sample of some records provided by AT&T Wireless for the telephone number (857) 247-5112?
A. Yes.
Q. And was that the phone associated by subscriber information to Jahar Tsarnaev?
A. Yes. I think at the time, in April, it was — the service had been terminated for lack of payment, as I remember.
Q. And meaning at the time of the marathon bombing?
A. That’s correct, yes. (46)

That’s all the attention that is given to this fact by the government. Fitzgerald mentions it briefly again on cross, but neither prosecution nor defense attempts to put the meaning of this in context. “Terminated for lack of payment” means someone didn’t pay the bill.

While Fitzgerald never elaborates on this, on March 30th, 2015, during cross-examination of defense witness and digital forensic analyst Gerald Grant, prosecutor Chakravarty brings it up again:

Q. You must have known that this was a family plan that involved both Dzhokhar Tsarnaev as well as his friends, Dias Kadyrbayev and Azamat Tazhayakov?
A. I was aware there were other phones that were associated with this account, yes, sir.
Q. In fact, the account had a balance that hadn’t been paid, and the cell phone service had been deactivated at the time of the Boston Marathon, is that correct? (47)

Dias Kadyrbayev and Azamat Tazhayakov, originally from Kazakhstan, were Dzhokhar’s friends who attended UMass Dartmouth with him. Following the bombing, Dias and Azamat were tried and convicted of obstruction of justice charges for removing a backpack from Dzhokhar’s dorm room the night of April 18, 2013. In this potion of the transcript, Chakravarty also mentions that although the address on the AT&T bill was 69 Carriage Drive in New Bedford, MA — the apartment shared by Dias and Azamat — the name on the bill was Dzhokhar Tsarnaev.

While friends sharing a family plan might sound strange to those who’ve never tried it, it’s actually far more economical than a bunch of college students having their own individual plans. This is something Dzhokhar, Dias and Azamat probably would have had to do otherwise, considering none of their parents were living in America and could not include their kids on their own plans. As explained by a blog post by Hiep’s Finance, laying out the difference in available AT&T individual and family plans in January 2013:

AT&T’s cheapest individual plan costs $40/month. But who uses a cell phone in this age without texting? Let’s add $20/month for an AT&T text messaging plan. … That’s $60 in total.

AT&T’s family plan with unlimited mobile-to-mobile calling: $60/month for 2 lines. 3 additional lines cost another $30. Unlimited texting for the entire plan is $30. The total cost is $120. Since there are 5 people, the plan costs $24 per individual.

The only problem with this system is that one person bears the financial burden of paying the entire bill, and then would have to split the difference and have the others pay him back. As Hiep’s Finance explains:

You may wonder, how do you make sure that everyone pays his fair share of the family plan’s monthly bill? Of course paying for a family plan takes slightly more effort than paying for your own individual plan. For my plan, I pay the full bill and get reimbursed by my friends. We know each other and trust each other, so reimbursement is not an issue. I’ve built a simple Excel spreadsheet to calculate the cost to each member, but most of the time each individual amount can be estimated easily: most of the bill is the fixed monthly amount, and you add the individual charges on top of it, adjusted 20% upward for taxes and other charges.

So not only is there math and maintenance involved, but the bill payer would have to be in a financially stable position to pay the full price and then reliably collect funds from his friends. It’s not entirely clear based on the available court record whether Dzhokhar was the bill payer or simply one of those chipping in, but if the service was getting shut off for lack of payment, there was something gumming up the works.

However, April 2013 isn’t even the first instance of this happening. A tweet Dzhokhar posted in January, four months earlier, warned that his phone would be shut off for awhile because of lack of funds:

dzhokhartweetjan16
It’s probably not a shocking reveal that college students can be bad with finances, but there it is.

This might support the idea that he was the bill payer, and wasn’t able to front enough money without the input of Dias and Azamat. Also note that the date on the Tweet shows that the middle of the month was when the bill cycle renewed. This timeframe coincides with both the April 14th Jahar Tsarni SIM card purchase and the April 15th Boston Marathon. (It should be noted that just because service was terminated on the iPhone 5, that doesn’t mean the phone was completely useless. According to Agent Fitzgerald, texting, calling and internet usage would still be possible, but only when the phone could connect to wi-fi internet. So unless Dzhokhar was in a place like his dorm, his house, or a public wifi hotspot, the phone wouldn’t get connectivity.)

So when the AT&T account was shut off for (at least, that we know of) the second time in April, perhaps Dzhokhar was weary of the less than stellar family plan arrangement. This could be why the T-Mobile pay-as-you-go plan looked appealing. There’s also the fact that although he had a perfectly good iPhone 5, due to the predicament with the unpaid bill, he would not have been able to simply buy the new SIM card and put it in his existing phone. AT&T not only requires an early termination fee if you try to break contract early (which, given that the phone wouldn’t be more than 7 months old, could have cost him upwards of $250), but it also “locks” phones bought through them to their own service. You can send a request to AT&T to unlock the phone so you can switch carriers, but there’s a long list of eligibility requirements you have to reach in order for them to grant it. Per AT&T’s website, this includes:

  • You must complete your contract or installment plan (including early termination fees). Or, pay off an installment plan early and then make another unlock request in 24 hours.

  • Your service must be active for at least 60 days with no past due or unpaid balance.

In other words, Dzhokhar had no hope of unlocking his iPhone 5 to switch to T-Mobile. He would have been required to get a separate phone, whether through T-Mobile or unlocked from another source. The latter is probably more likely: given the lack of a mention of a phone on the T-Mobile receipt, and the older model of the iPhone 4S, it’s possible it was bought on discount somehow. It’s also not much of a stretch to imagine that if Tamerlan knew of Dzhokhar’s phone predicament, being the older brother with more money, he might have been willing to help out.

Although perhaps not without wanting something in return.

Leverage 

I know I’ve been harping on the idea that Tamerlan was responsible for the Jahar Tsarni phone and SIM card purchase, whether directly or indirectly, without a lot of straightforward evidence for it. This is what I mean about the lack of a smoking gun, but the presence of many tiny pieces that don’t fit the official narrative. In my search to determine when Dzhokhar could have reasonably discovered the bombing plot and decided to aid it, I have been thwarted on every level, at every turn, right up until the day before the attack. And now, with the revelation that Dzhokhar needed a new phone because the other one’s service had been shut off, that throws a wrench into gears of the last possible chance that he was involved in the conspiracy. It is way more likely that he was just tired of having unreliable phone service than that he was compelled to buy a separate iPhone for the sole purpose of committing terrorism.

But that brings us to the reality of April 15, 2013. There are facts that I find to be irrevocable: Dzhokhar Tsarnaev was at the Boston Marathon. He did not have a detonator, but he carried and placed a backpack that exploded. He talked on an iPhone with a SIM card bought through T-Mobile to his brother before and after the attacks, while his other phone didn’t have calling capabilities. He wasn’t radicalized, but for some reason he was there, acting as an instrument of Tamerlan Tsarnaev, whether knowingly or not.

Something brought him to the Marathon that day.

I have long been advocating the idea that Dzhokhar would have had a decent shot at a duress defense, if his attorneys had been allowed to properly represent him. That would mean something happened between Tamerlan and Dzhokhar to constitute a threat or coercion, something that would have overridden Dzhokhar’s moral compass, or made him more compliant.

Something like leverage.

Unfortunately, and frustratingly, despite sitting in the courtroom for three weeks, feeling fully that this must be the truth, I had to agree with what the prosecutors pointed out at the time. Despite circumstantial evidence of Tamerlan’s volatile and overbearing nature, there was nothing direct to show that Tamerlan had threatened or forced Dzhokhar into anything. Not that I believed it didn’t exist; I just couldn’t see it.

And after more than two years of searching, I still have nothing.

Except this phone.

This mysterious phone that seems to appear out of nowhere, with no evidence of where it was bought, or how, or by whom.

To be clear, I don’t think this was a bribe. I don’t think Tamerlan said, “Hey, wanna help me murder some innocent people? I’ll hook you up with an iPhone,” to which Dzhokhar enthusiastically said, “Okay sure, thanks bro.”

But I do think it’s possible that Dzhokhar, in a tough spot over finances and sick of unreliable cell service, was home for a school holiday and mentioned his plight. Tamerlan took the opportunity to act like a good big brother, and bought him a phone — sure it was an older model, but beggars can’t be choosers — and a new, easier to manage pre-paid account. And in return, when Tamerlan said, “Hey, I got some errands to run, can you help me?” Dzhokhar felt, perhaps, more obligated than usual to say yes. And maybe if red flags were raised later on, he was less likely to ask questions.

Because that’s what brothers do, right? They help each other out.

dzhokharandtamerlan

I’m aware this is not a pretty story. I tell it with no triumph. But I have gone over the facts again and again for years, and with the available evidence, at the moment I can’t come up with anything else. I have to concede that a scared accomplice might be useful, but an unwitting one would be even better. I have to admit that Dzhokhar, described by everyone who knew him as sweet, kind and willing to lend a hand, may have been taken in by gratitude for his brother and led into a trap.

I can see him in the cacophony of Boylston Street, having put down the heavy backpack he’d been asked to carry because it had been digging into his shoulder. He watches the runners for a bit, wondering why his brother hasn’t returned yet. When the minutes start to drag on, he pulls out his new(ish) phone and gives Tamerlan a call to ask where he is.

I would like to believe Tamerlan warned him, told him to run if he wanted to live.

No, I’m not positive it happened this way. However, given the current evidence, I can say it’s just as likely, if not more so, as the narrative presented by the prosecutors. That makes all the difference.

That’s reasonable doubt.

 

Where Do We Go From Here?

I know there’s still a lot of unanswered questions. If it’s true Tamerlan bought Dzhokhar the iPhone 4S, where did he get it, if not T-Mobile? And if that’s the case, did law enforcement wonder that as well? Why didn’t the government present any of this at trial? Why obfuscate all the facts that explained Dzhokhar’s need for a working phone? Why didn’t the defense pick up on any of this and try to use it to refute the prosecution’s claims?

I can’t answer all of these. But I can say that I have now debunked every single assertion the prosecutors made about Dzhokhar Tsarnaev’s willing participation in the bombing conspiracy. There’s too many other factors, too many alternate explanations, too many instances in which the “evidence” is faulty, misleading, or flat out wrong. And the burden of proof is always on the government. As my father frequently reminds me, the defendant has to prove nothing.

For the charges in which Dzhokhar is charged with conspiracy, until I see something more compelling that what’s on the court record, he is innocent.

Still, there are more puzzles with the Jahar Tsarni phone that I have long been pondering. They have to do with the cell phone activity and call log data, even more technical information that, for the sake of saving readers from too much tedium, I did not dive into much in this post. However, necessity demands it for the next installment.

For now, I will leave you with this: the activity on the Jahar Tsarni phone was scant. Aside from the few calls between it and Tamerlan’s the day of the bombing, the call log goes completely silent from April 15th, until the night of April 18th, when the brothers were involved in their ill-fated escape attempt. By that, I mean no phone calls, no texts, no data activity. No usage at all.

If one were to think the phone was in use only for criminal activity, perhaps this makes sense. However, now we know better: it is just as likely that Dzhokhar got the “Jahar Tsarni” iPhone 4S to replace the iPhone 5 that had had its service shut off by AT&T. And if that’s the case, why didn’t he keep using it? I’ve found no evidence he attempted to contact any of his friends to tell them of his new phone number. In fact, as the transcripts will show next time, by the night of April 16, 2013, activity on his original phone — the iPhone 5 with the terminated service — would place him back at UMass Dartmouth. Why go through all that trouble for a new phone, literally pay in blood, and then abandon it?

Well, maybe he didn’t want to remain beholden to his brother. It’s hard to say, but if so — not only is it more evidence in support of a duress defense, but it suggests a repudiation of Tamerlan’s actions.

Regardless, now that we’ve ruled out Dzhokhar as a conspirator, there’s the inconvenient truth that plenty of evidence remains, pointing not only to the idea that Tamerlan was a conspirator in the Boston Marathon bombing, but that he had other co-conspirators. Based on the facts, the most logical explanation is that they must have pulled out at the last minute, forcing Tamerlan to use his younger brother instead. These unnamed accomplices have more or less walked away unscathed from the Marathon bombing while Dzhokhar sits on death row.

Next time: why do I think this has to be the case? Who are these unusual suspects? And what evidence on the court record is there to back this up?

I will give you a hint: it involves more cell phone evidence, FBI Agent Chad Fitzgerald, and the depths of mystery surrounding the Jahar Tsarni phone that haven’t yet been explored.

Stay tuned.

Special thanks to Tom Frizzell and Eric Bowsfield for their consultation for this post while I pulled my hair out trying to understand the cell phone evidence. 

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22 thoughts on “The Unusual Suspects, Part 1: The Cell Phone Shuffle

  1. I dispute at least one of your contentions. I know of no evidence whatsoever showing that the backpack that exploded was his. All we know is there was a black backpack that looked like it may have been exploded. Dzhokhar did not have a black backpack and neither did Tamerlan.

    1. My dad and I discuss the discrepancies with the evidence about the backpacks here: https://usvtsarnaev.org/2017/06/21/marathon-7-lets-do-the-math/

      And I plan to address it again in the next installment as I discuss the gaps in accounting for the bomb material purchases by either Tamerlan or Dzhokhar. In short, the brand of backpacks from the receipts recovered from Tamerlan match the first blast site and the recovered undetonated pressure cooker in Watertown, so yes, the backpack attributed to Dzhokhar is unaccounted for. However, with the available evidence, I haven’t seen enough to indicate that there was a separate backpack with an explosive placed at the same spot Dzhokhar where placed his own – if so, where did that backpack come from? Who placed it? There should be security footage of that as well. And where did Dzhokhar’s backpack come from, then? As far as I know, the backpack he used for school was significantly different in appearance and was the one recovered from a landfill after being thrown out by his friends Dias and Azamat. If the backpack he placed didn’t explode, nevertheless it should have been recovered from the crime scene and be on record. If anyone knows of any forensic evidence shown on the court record that might account for this, please contact me and let me know. I don’t delight in the theory I’ve put forth, but at the moment it’s the only version of events that makes sense to me taking into account all the available evidence.

  2. Hi Heather, I love the detail in your articles, including this one. There was another tweet from Dzhokhar about his first cell phone, he tweeted when he could no longer use his phone-never get into a family plan with foreigners-. At the time we were not sure what that meant, but he did need or want another phone. I am glad you have uncovered the discrepancies or deception concerning Fitzgerald and the cell phones and how the prosecution glossed over (tried to downplay or hide this) the fact that Dzhokhar could not talk on his phone. As time goes on you will find dozens of these types of deception (lies) in the testimony of almost all who testified for the prosecution. Heather I am very surprised at some things you have thought about and stated here. For example: -I can see him in the cacophony of Boylston Street, having put down the heavy backpack he’d been asked to carry because it had been digging into his shoulder-.We clearly know that Dzhokhar did not have a black backpack, that it was not heavy, in fact seemed almost empty, sagging in the middle and it was not digging into his shoulder at all. You also say- Evidence was already shown that Tamerlan was out on April 14th alone, buying two backpacks at a Target in Watertown, one of which was used in the bombing, and the other that housed a third undetonated pressure cooker found at the shootout scene, also in Watertown-. The pic of Tamerlan coming out of a store with a bag is not evidence that the bag contained two backpacks, in fact two backpacks would not even fit in the bag he is carrying, and why would he keep the receipt in his wallet. He was a very intelligent person. Why was there no surveillance of him actually making that purchase. I don’t know who bought the cell phone but after all I have read in the trial transcripts, it wouldnt surprise me if the FBI or perhaps Dun Meng bought the phone. There is so much more to this case than any one could imagine, but one day the truth will all come out. It is all of these tiny details that will unravel this case.

    1. Hi Julie! It’s so good to hear from you. Yes, you are right – there is another tweet from Dzhokhar decrying “getting into a family plan with foreigners” right around that weekend in mid-April if I recall correctly. I think there might have been discussion of getting a new phone between Dzhokhar and Stephen Silva around that time as well, which raises other questions of whether Silva maybe could have been a good defense witness to testify to Dzhokhar’s need for a new phone, but that went out the window when the government arrested him and used the heroin charges as leverage to get him to testify for the prosecution instead. I did see a memo from the defense that mentioned they had been hoping to use Silva as a defense witness until that point. There’s a lot of things evident that hint to me they could have had a very different and much stronger case if certain events hadn’t borne out… and one must wonder why they played out the way they did, with all that’s suspect about the case.

      I’ve linked in the comment above my discussion with my dad about the backpacks attributed to Tamerlan (see: https://usvtsarnaev.org/2017/08/25/the-unusual-suspects-part-1-the-cell-phone-shuffle/#comment-693), which I hope can shed light on why I phrased things the way I did. There will definitely be more about the discrepancies in the evidence of the bomb material purchases going forward – the cell phone information is necessary to set up the additional details I’ve found, so I hope by the end it will all weave together into something coherent.

  3. Heather, for some reason you have avoided the fact that the light-colored, nearly flat and obviously not heavy backpack carried by Dzhokhar on one shoulder is not a match in any way to the black one shown shredded with its white padding spilled out in a widely circulated picture the FBI said was the pack containing the second “bomb.” I have questioned your assertions concerning the backpacks before but your statements concerning them in this blog post really are over-the-top unsupportable and frankly very surprising coming from someone who claims to want nothing more than to get at the truth and prove Dzhokhar’s innocence.

    1. Au contraire, it is your language which is extremely over the top and inflammatory. Heather has always made her beliefs clear and unlike some others, she only sticks to the facts. She does not make wild conjectures.
      It’s clear that he was there, that he did drop the backpack containing the bomb and that this lead to the death of 8 year old Martin Richard. You may be unaware of this fact, but when things burn, they char and turn black.

      Heather’s attempt at getting some mercy for Mr. Tsarnaev is very kind. While we disagree over the chances for success, I nevertheless respect her attempts at doing so.
      In the future, you would do well to learn some respect.

  4. “When things burn, they char and turn black…” is quite right. If you look again at the picture the FBI said is the shredded backpack that contained the second bomb, you will see the white fluffy stuffing that is inside any backpack is still white. If the backpack had burned the outer black material of the shell and the straps etc would have melted and shrunk together and that white filler material inside the liner would have also melted and turned black.

  5. Heather, while I do appeiciate your exact work on Dzhokhars case, I beg to differ when it Comes to the back packs! The fact is that FBI have shown a black nylon back pack shredded to pieces to the public who never does match the light Grey not bulged back pack that Dzhokhar has carried at the Marathon is given and it does not even match the back pack Tamerlan has carried on himself.We all do know for a fact that it is the Governments /Prosecutions agenda to hammer on the narrative that Tamerlan was the mastermind behind the BMB and Dzhokhar the Follower.We can read this on Marets Affidavit who does state that Judy Clarke herself visited paents of Dzhokhar 14 times in Russia back in 2014 where Judy Clarke has laid out to parents of Dzhokhar the “strategy ” that they would follow that Tamerlan was the mastermind behind the Bombing and Dzhokhar the Follower in reassurance to parents of Dzhokhar to avoid the death sentence for Dzhokhar!Judy Clarke does know to this day that Dzhokhar is innocent and she said in her opening Statement “it was him!” She betrayed Dzhokhar and his Family completely! Maret is a lawyer herself and she was present in the discussion between Judy Clarke, William Fick and parents of Dzhokhar and I do believe Maret! Why should Maret lie? She was the one who stood up for her nephew immediatly after Dzhokhar was taken into custody! Please ,Heather read her Affidavit! If you already have it is much appriciated!You asume furthermore that Tamrlan has purchased the I phone 4S under Jahar Tsarni because Tamerlan had more financial back up. While this could be it could also be that it could be an entirely different Person! To assume that Tamerlan had ties to FBI/CIA as a possible informant is never an indication that he was part of the BMB himself! You do know that this is not certain at all.

    1. Hi Elisabeth, I’m directing everyone who brought up the point about the backpack discrepancies here: https://usvtsarnaev.org/2017/08/25/the-unusual-suspects-part-1-the-cell-phone-shuffle/#comment-693 to let them know what can be done to help me sort it out.

      I have read the affidavit you’re speaking of, but I will give it another look, thank you!

      As for the iPhone 4S purchase, you’re right that the evidence there is thin. There’s a number of leads I’m still looking into that might better account for it, but I only wanted to explain what I noticed first and what directions it pointed me in, because it will serve as a foundation for later articles.

      Finally — to clarify, I never stated, nor do I believe at this time, that Tamerlan was a government informant. I know that’s another popular theory out there, but so far I’ve found nothing on the court record that backs it up. I find it more likely he still had connections to the drug trade, which would account for his disposable income and possibly how he obtained the Ruger P95 that killed Sean Collier. If I find anything to the contrary, I will certainly report it.

  6. Heather,thanks for your answer and I am looking foreward to your next Installment where you surely have to agree that Dzhokhar at the Marathon carried a light Grey back pack and not the nylon black pack shredded to pieces shown to the public by FBI! His back pack was not even bulged and could have never carried a pressure cooker bomb in it! We want to have answers from you on this specific issue! Also Pictures of Dzhokhar running from the blasts were altered that is to say they have cropped out the back pack that Dzhokhar still caried on him while fleeing the blast Scene!

    1. I can’t promise any particular outcome without facts to examine, but if you have reliable information that points to this, I urge you to email it to me through the Contact page so I can take a closer look at it. Thanks!

  7. Heather, yes I question as well the lack of surveillance Video footages because we all do know that there were more at hand and why has the US Government/former Prosecution refused to use this other suveillance Video footages who clearly would have made it clear what exaclty has happened at the BMB Event! Why all this secrecy? At MIT it is the same! There are so much other survillance Videos on different spots and the lack of use of them in court is astonishing and gives me the impression that indeed Dzhokhar and Tamerlan were set up to cover up whatever is to cover up! Just as the Affidavit of Maret says! They know that Dzhokhar is innocent yet they pressured him to take the blame anyway! In the Affidavit it says that Judy Clarke admitted to parents of Dzhokhar that she does know of the innocence of the BROTHERS and of Dzhokhar in particular yet she insists that the Family of Dzhokhar should not avoid conviction of Dzhokhar!

  8. paulcraigroberts.org/2015/08/17/fbi-evidence-proves-innocence-accused-boston-marathon-bomber-dzhokhar-tsarnaev that is the link where you can find the footage of Dzhokhar carrying a light Grey back pack and not as pictured by FBI the black nylon back pack shredded to pieces! Please read it through and thank you for this!

    1. I think I may have read this back at the time it was published. I’ll take a closer look, but at first glance I agree with a lot of what is being said – namely that Dzhokhar’s constitutional rights being violated by the government destroying the defense’s ability to present a truthful, robust defense. Many court documents filed between prosecution and defense that I’ve reviewed back this up and I find it believable. That said, I’m not sure this one piece of alleged evidence proves or disproves anything in particular. This is still the opinion of people who aren’t forensic experts evaluating photographs, not the actual exhibits themselves. This wouldn’t pass muster in a courtroom, unfortunately. If you or anyone knows of forensic reports on the record analyzing the recovered exploded backpack, please let me know. I’ll look through my archives in the meantime and see if I can find anything.

      On a small note of disagreement, the letter penned by Mr. Remington that is quoted in this article states the American Civil Liberties Union was uninterested in becoming involved in Dzhokhar’s case. I have reason to believe that at this stage, this isn’t true. I’ve noticed recent appellate filings CCing in Matthew Segal, who is the director of the ACLU of Massachusetts. It’s very possible on the appellate level that they’ll be involved. This excites and heartens me, because they do very good work fighting for the rights of the vulnerable, especially Muslims and immigrants, and they have an anti-death penalty project. If they do become involved, I’ll be able to sleep a little better at night, at least.

  9. Anyone still kvetching about the backpacks at this point needs to bring forth the opinions of experts on pyrotechnics to support their claims. Otherwise, it is baseless conjecture at this point.

  10. Fascinating, compelling stuff as usual, Heather. Don’t let anyone get you down, you and your dad are doing amazing work on this complex case. Just a quick question, if Jahar did not act willingly, why didn’t he set the record straight in the boat note? Surely he would want the world to know that he would not kill anyone, let alone a child and two lovely young women? Why not speak out in court? The only conclusion I can reach is that he is afraid, which speaks to your contention that others are involved. What a nightmarish situation. I, for one, appreciate that you stick to the facts and expert opinion rather than unsubstantiated claims. This case is too serious and the stakes are too high for hysterical hypothesis. Calm, reasoned analysis is what is needed and that is what you bring. Well done, I cannot wait for the next instalment.

    1. Hi Natacha,

      Thank you for your kind words! It is always great to hear from new readers.

      Your questions are good ones. I don’t have a quick and clean answer, but I’ve studied both statements you reference and I think you might be very close to the truth with your assessment. The boat note in particular, to me, is rather unreliable as an indicator of intent, given the circumstances under which it was written (physical pain, mental trauma, etc). Most of it always read to me like a prayer, something most of us might utter when facing imminent death. The statement in court may have been a product of fear, surely. However, I also consider something a little more complicated. An observation I made when working with students of Dzhokhar’s approximate age and immigrant background is that many of them often tried to take responsibility for circumstances I objectively considered out of their control.
      Perhaps this is true for adolescents in general, not just immigrants, because their brains haven’t fully developed yet and so they are less likely to think critically through every situation. But I encountered a number of them who were quick to blame themselves without considering the outside factors that led to their struggles or failures. It’s possible that to Dzhokhar, the honorable thing to do wasn’t to protest, but to simply take the responsibility, regardless of the actual shades of gray surrounding his culpability. He and I sat through the same testimony (and he more than me, of course) – there was a lot of suffering on display. I would understand the desire of a compassionate person to take the burden, regardless of whether it was truly his to carry.

      I do hope that if this is the case, I’m able to tell him one day that it’s not his fault. That’s a lot for someone, especially a young person, to live with, on top of everything else.

  11. Heather, you know how much I appreciate your work and seriousness. You also know by now that I don’t have the same opinion as you when it comes to what happened at the marathon and in the following days.

    I also respect your decision to only stick to the facts and court documents, it is the only way to be taken seriously. My problem is that when you request us to provide you with evidence or court documents to prove what we suspect, we can’t because there isn’t anything. Feel free to tell me if I am totally wrong but the investigation seemed inexistant (when it comes to link Dzhokhar to the bombing), the trial barely provided any evidence and Dzhokhar’s defense team did a terrible job pointing to the inconsistencies. If we base our opinion only on the court documents, some pieces are missing as it is as if someone pointed their finger to Dzhokhar before his arrest and from this point, he was guilty, so there was no need to prove anything at the trial and nothing was. The jury wasn’t chosen to find out if he was guilty but if they were able to sentence to death the guilty person that was in front of them. So unless we go back in time and pay a team of efficient private investigators before the trial we can’t point you to the court documents that would prove us wrong or right, we can only tell you it hasn’t been investigated, for whatever reason.

  12. Hello Heather,
    First as usual I truly enjoyed your article and I am looking forward to the next one.

    Now the question of the backpack:
    On April 16, 2013, in the afternoon, Richard DesLauriers issued a statement where he said the following:

    ‘In addition, this morning, it was determined that both of the explosives were placed in a dark-colored nylon bag or backpack. The bag would have been heavy because of the components believed to be in it. At this point, it is difficult to determine specific components used until we can eliminate other factors which may have been already present in the environment. In fact, that won’t be known with some certainty until the Laboratory completes its final review. https://archives.fbi.gov/archives/boston/press-releases/2013/remarks-of-special-agent-in-charge-richard-deslauriers-at-press-conference-on-bombing-investigation

    On April 18, 2013 during the press conference Richard DesLauriers asked us to visit the FBI Website to view other images and a particular video. That video is what hooked me on that case. https://archives.fbi.gov/archives/boston/press-releases/2013/remarks-of-special-agent-in-charge-richard-deslauriers-at-press-conference-on-bombing-investigation-1

    Included on that webpage is a link to the FBI video of the brothers turning the corner and walking on Boylston street. Here are still images that I took of Jahar where you clearly see him walking with a light grey backpack.

    That FBI video was used by the prosecution to make their exhibit 22, with modifications of course, but you can still see Jahar walking with a light grey backpack.

    Further along you can actually see someone with a black coat, wearing a white polo hat depositing a light grey backpack on the ground and to the right of the three. (if the tree is in front of you)

    The backpack that apparently exploded is on the left of the tree. (if the tree is in front of you)

    Paragraph 7 of the Grand Jury Indictment Bill:

    7.The IEDs that exploded at the Marathon were constructed from pressure cookers, low explosive powder, shrapnel, adhesive, and other materials. They were concealed inside black backpacks.

    You will note that the indictment bill does not say that a backpack that turned black after it exploded. It does say that the pressure cookers were concealed inside black backpacks.

    If you look at the image of the black backpack that was recovered in the street at scene B you can see white stuff that was inside the backpack and it is still very while. So if the bomb charred the exterior of the light grey backpack one would think that the inside of the backpack would have been charred also.

    Heather please do not take this as a criticism on your research as you know that I truly appreciate your work.

    Josée

  13. Thanks Heather for all your work and possibly giving Jahar a voice. Since he cannot communicate himself. For me, you have given hope.

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