United States Court of Appeals For the First Circuit

No. 16-6001

UNITED STATES OF AMERICA,

Appellee,

v.

DZHOKHAR A. TSARNAEV,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Kayatta, Howard, and Thompson, Circuit Judges.

Daniel Habib, with whom Deirdre D. von Dornum, David Patton, Mia Eisner-Grynberg, Anthony O'Rourke, Federal Defenders of New York, Inc., Ginger D. Anders, Munger, Tolles & Olson LLP, Clifford Gardner, Gail K. Johnson, and Johnson & Klein, PLLC, were on brief, for appellant. John Remington Graham on brief for James Fetzer, Ph.D., Mary Maxwell, Ph.D., LL.B., and Cesar Baruja, M.D., amici curiae. Timothy P. O'Toole, Miller & Chevalier, George H. Kendall, and Squire Patton Boggs (US) LLP on brief for Eight Distinguished Local Citizens, amici curiae. Michael J. Iacopino, Brennan Lenehan Iacopino & Hickey, David A. Ruhnke, Ruhnke & Barrett, Megan Wall-Wolff, and Benjamin Silverman on brief for National Association of Criminal Defense Lawyers, amicus curiae. William A. Glaser, Attorney, Appellate Section, Criminal Division, U.S. Department of Justice, with whom Andrew E. Lelling, United States Attorney, Nadine Pellegrini, Assistant United States Attorney, John C. Demers, Assistant Attorney General, National Security Division, Joseph F. Palmer, Attorney, National Security Division, Brian A. Benczkowski, Assistant Attorney General, and Matthew S. Miner, Deputy Assistant Attorney General, were on brief, for appellee.

March 21, 2024 KAYATTA, Circuit Judge. In 2013, Dzhokhar Tsarnaev and

his brother detonated two homemade bombs near the finish line of

the Boston Marathon, killing three people and injuring hundreds

more. In the ensuing aftermath, the brothers killed a local campus

police officer, hijacked a car, and engaged in a shootout with

police that injured an officer and resulted in the death of

Tsarnaev's brother. In 2015, a jury sitting in federal district

court in Boston convicted Tsarnaev of thirty crimes stemming from

the bombings and recommended a death sentence on several of the

death-eligible counts. It did so in two different phases: a guilt

phase, in which the jury concluded that Tsarnaev was guilty; and

a penalty phase, in which the jury concluded that his sentence

should be death. The district court imposed the death sentence,

along with multiple life sentences on the remaining counts.

Tsarnaev appealed to this court, raising sixteen different claims

of error in the district court's treatment of his case.

We first considered Tsarnaev's post-verdict appeal in an

opinion we issued in 2020. United States v. Tsarnaev,

(1st Cir. 2020), rev'd,

(2022). In that opinion, we

held that the district court committed three errors: one requiring

reversal of three of Tsarnaev's thirty convictions, and two

requiring vacatur of Tsarnaev's death sentence and remand for a

new penalty-phase proceeding. Id. at 35, 62, 75. We emphasized,

though, that Tsarnaev "will remain confined to prison for the rest

- 3 - of his life, with the only question remaining being whether the

government will end his life by executing him." Id. at 35.

Because we concluded that a new penalty-phase proceeding

was necessary in light of two of Tsarnaev's arguments, there were

several arguments that we did not need to conclusively address in

our prior opinion.1 It is common practice in our court -- as it

is generally in courts of appeals -- not to resolve issues that

need not be resolved if other issues are dispositive. In the words

of then-Judge (now Chief Justice) Roberts, "if it is not necessary

to decide more, it is necessary not to decide more." PDK Lab'ys

Inc. v. U.S. Drug Enf't Admin.,

(D.C. Cir. 2004)

(Roberts, J., concurring in part and concurring in the judgment).

The Supreme Court, however, reversed our vacatur of

Tsarnaev's death sentence on both grounds. United States v.

Tsarnaev,

(2022). The Court's opinion was

limited to the two issues that we had held required vacatur of

Tsarnaev's death sentence. So with respect to the other issues we

decided, our prior opinion stands. That leaves for our present

review only the remaining arguments that were not resolved in

either our prior opinion or the Supreme Court's opinion.

The parties agree that there are four such remaining

issues: first, Tsarnaev's claim that he should have been tried

1 We did address other issues that were likely to resurface on remand. Tsarnaev,

.

- 4 - somewhere other than Boston; second, his claim that the district

court failed to properly address his specific allegations of juror

bias with respect to two jurors; third, his claim that the district

court erroneously dismissed another prospective juror for his

views on the death penalty; and fourth, his claim that the district

court erred in its treatment of certain evidence regarding

Tsarnaev's post-bombings trip to a Whole Foods store. We address

each of these issues in turn. In so doing, we recite only those

facts relevant to our resolution of these issues. Our prior

opinion contains a more detailed account of the underlying facts.

Ultimately, three of Tsarnaev's four remaining arguments

fail. For reasons we will explain, though, his second argument

requires further factfinding by the district court. When Tsarnaev

presented the district court with plausible claims of juror bias,

the court was obliged to investigate those claims. And we conclude

that the district court's investigation fell short of what was

constitutionally required. This conclusion on its own does not

require vacatur of Tsarnaev's death sentence and a new penalty-

phase proceeding. Rather, we remand this case to the district

court to determine whether either juror should have been stricken

for cause on account of bias. If and only if the district court's

investigation reveals that either juror should have been stricken

for cause on account of bias, Tsarnaev will be entitled to a new

penalty-phase proceeding. And even then, we once again emphasize

- 5 - that the only question in any such proceeding will be whether

Tsarnaev will face execution; regardless of the outcome, he will

spend the rest of his life in prison.

Our analysis of each of the remaining four issues

follows.

I.

The first remaining issue is Tsarnaev's claim that the

district court should not have allowed his trial to proceed in the

Eastern Division of the District of Massachusetts (located in

Boston). He argues that the community's exposure to the marathon

bombings and pre-trial publicity violated his constitutional right

to an impartial jury, required a venue change under Federal Rule

of Criminal Procedure 21(a),2 and undercut the reliability of the

jury's death verdict. We review the district court's denial of

Tsarnaev's venue-change motion for abuse of discretion. United

States v. Casellas-Toro,

(1st Cir. 2015).

Although we declined to conclusively decide this issue

in our prior opinion, two of us stated that we would likely find

no abuse of discretion. Tsarnaev,

. We explained

that polling data showed that there were several million people in

2 Federal Rule of Criminal Procedure 21(a) states: "Upon the defendant's motion, the court must transfer the proceeding against that defendant to another district if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there."

- 6 - the venue open to a life sentence even after all the publicity.

. That same data also showed that public awareness of

the case and attitudes concerning it in, for example, Western

Massachusetts, or even New York City, were not materially different

than they were in Boston.

. In addition, the information

contained in the bulk of the pretrial publicity was true and

admissible (and uncontested) at trial.

And that true

information painted a picture of conduct that was horrific enough

to render any untrue information in the publicity like a match

added to a forest fire.

Precedent, too, leaned against any

finding that venue in Boston was precluded as a matter of law.

at 55–56. And Tsarnaev's contention that Boston jurors would

view the bombings as an attack of Boston qua Boston overlooked the

fact that, as he himself wrote, his intended victim was America;

i.e., jurors in any venue in the United States could view the

bombings as an attack on their polity.

.

Shifting focus from the general public to the venire

pool, Tsarnaev points out that virtually all prospective jurors

admitted exposure to some amount of publicity regarding the case,

and approximately two-thirds of the venire -- including some seated

jurors -- had formed a belief that Tsarnaev was guilty. But

"[p]rominence does not necessarily produce prejudice, and

juror impartiality . . . does not require ignorance." Skilling v.

United States,

(2010). As the Supreme Court

- 7 - said in this very case, "[n]otorious crimes are 'almost, as a

matter of necessity, brought to the attention' of those informed

citizens who are 'best fitted' for jury duty." Tsarnaev,

(quoting Reynolds v. United States,

, 155–56

(1878)). Nor was the jury partial merely because some jurors had

"formed some impression or opinion as to the merits of the case."

Irvin v. Dowd,

(1961). "It is sufficient if the

juror can lay aside his impression or opinion and render a verdict

based on the evidence presented in court."

. Here, the

seated jurors who had preconceived notions of Tsarnaev's guilt

stated that they would be able to do just that. And, with the

potential exception of two jurors (discussed in the next section),

Tsarnaev gives us no reason to doubt the veracity of the jurors'

assurances that they could be impartial.3 Moreover, Tsarnaev's

argument that he was prejudiced by the jurors' preconceived notions

of guilt is undermined by his admission of guilt at trial. As we

3 Tsarnaev also points out that five seated jurors had made financial contributions to victims of the bombings, either through direct donations or by purchasing "Boston Strong" merchandise. But we do not find this to be particularly indicative of prejudice against Tsarnaev, and apparently neither did defense counsel because Tsarnaev did not move to strike any of these jurors for cause on this basis. See Beck v. Washington,

, 557– 58 (1962) ("The fact that petitioner did not challenge for cause any of the jurors so selected is strong evidence that he was convinced the jurors were not biased and had not formed any opinions as to his guilt.").

- 8 - noted previously, Tsarnaev "does not say he would have raised an

innocence defense in another venue." Tsarnaev,

.

Tsarnaev's similar argument that the venire's pretrial

exposure to victim-impact publicity undercuts the reliability of

his death sentence also falls short. Despite exposure to the

publicity, fewer than half of the prospective jurors who believed

Tsarnaev was guilty -- and none of the seated jurors -- said they

had formed an opinion that Tsarnaev should die.

Finally, Tsarnaev asserts that the length of the jury

selection process -- twenty-one court days of individual voir

dire -- casts doubt on the jurors' assurances of impartiality.

See Murphy v. Florida,

, 802–03 (1975) ("The length to

which the trial court must go in order to select jurors who appear

to be impartial is another factor relevant in evaluating those

jurors' assurances of impartiality."). But, as this court

previously observed, a jury selection process of this length is

"not unusual," particularly in a high-profile case. In re

Tsarnaev,

(1st Cir. 2015); see

at 26 n.14

(collecting cases). Following the Supreme Court, we hold that the

district court's jury selection process -- with the important

caveat concerning its application discussed in the next

section -- was "eminently reasonable." Tsarnaev,

.

For all of these reasons, as more fully explained in our

court's most recent prior opinion in this case,

at 54–56, we

- 9 - conclude that the district court did not abuse its discretion in

denying Tsarnaev's motion to change venue.

II.

The second remaining issue is Tsarnaev's contention that

the district court failed to investigate his plausible claims of

juror bias relating to two prospective jurors who ultimately ended

up on the jury that recommended the death sentence. After the

district court provisionally qualified Jurors 138 and 286, but

before the parties exercised their peremptory strikes, Tsarnaev's

counsel discovered postings on those jurors' social media pages

regarding the bombings and the district court proceedings.

Tsarnaev's counsel moved to strike the jurors for cause. In the

alternative, his counsel asked that the district court permit

further questioning of the jurors in light of the discovery of

their social media postings. The district court denied these

requests. In so doing, it did not adequately explore Tsarnaev's

claims of juror bias. We therefore remand to the district court

to conduct such an investigation. Our reasoning follows.

A.

1.

On January 5, 2015, Juror 138 posted on his Facebook

page that he was at the federal courthouse for jury duty. At that

time, the court had not yet instructed potential jurors regarding

- 10 - any restrictions on their social media use. As of 8:18 a.m.,

Juror 138's relevant Facebook entries read as follows:

JUROR 138: Jury duty....this should be interesting...couple thousand people already here FRIEND 1: How'd you get stuck going to Boston? FRIEND 2: Did you get picked for the marathon bomber trial!!!??? That's awesome! JUROR 138: Ya awesome alright haha there's like 1000s of people FRIEND 3: If you're really on jury duty, this guys got no shot in hell. FRIEND 4: OMG you could be on this jury!!! FRIEND 4: 1200 people it's one out of 100 chance

At 9:15 a.m., the district court addressed the potential

jurors, including Juror 138. As part of its remarks, it instructed

the potential jurors as follows:

Thank you, all. Although you have only heard briefly about this case this morning, and indeed have heard no evidence yet about it, it is extremely important until further notice that you do not discuss this case among yourselves or with anyone else. That is because, as I've said, a jury's verdict must be based on the evidence produced at trial and must be free from outside influence. Therefore, I now order each of you not to discuss this case with your family, friends or any other person until I either excuse you, or if you are selected as a juror, until the trial concludes. This is a court order, willful violation of which may be punishable as a contempt of court or otherwise. You may tell others that you may be a juror in the case, and you may discuss the schedule with your family and employer because

- 11 - those people are entitled to know when you might not be available; however, you are not to discuss anything else, or allow anyone to discuss with you anything else until you have been excused, or if you're a juror, until the case concludes. This means, among other things, you may not speak to any member of the news media about the case. There is legitimate public interest in this matter, and the news media play a vital role in informing the public about it. It would, however, be improper for you to discuss this case or your role in it with them. If anyone should ask to speak to you about the case, you should politely decline. If anyone persists, please inform the jury clerk or other court staff promptly. I also instruct you from here on not to read, watch or listen to any reports about the case in the media until you are either excused, or if you're selected as a juror, until the case concludes. If you should, by chance, encounter a news story in the newspaper, on the radio or television or on the internet, please turn the page, change the channel or close the screen. Do not read, listen to or watch anything related to the case, and do not under any circumstances do any online research about the case, of anything or anyone who may be connected with it. This includes Googling or otherwise researching the defendant, any of the witnesses or events involved, or any of the trial participants such as the lawyers or even the judge. Likewise, you must not communicate about this case or allow anyone to communicate about it with you by phone, text message, Skype, email, social media, such as Twitter or Facebook. Please do not discuss this case or anything I have just said with any of the other potential jurors or anybody else here today.

- 12 - Juror 138, like the other potential jurors, then

received a written questionnaire, which contained the following

additional instructions:

You will be permitted to leave for the day when you have completed the questionnaire. Do not discuss any of the questions or your answers on this questionnaire with anyone, including members of your family, co-workers, or other potential jurors. If anyone approaches you and attempts to discuss any aspect of this questionnaire, the jury selection process, or any aspect of this case, you may not answer their questions or engage in any discussion. Do not discuss anything about this case with anyone and do not read, listen to, or watch anything relating to this case until you have been excused as a potential juror, or if you are selected as a juror, until the trial is over. You may not discuss this case or allow yourself to be exposed to any discussions of this case in any manner.

The questionnaire posed one hundred questions to be

answered by the potential jurors under pains and penalties of

perjury. In response to two questions, Juror 138 reported that he

used the Facebook social media platform. Asked "[i]f you have

commented on this case in a letter to the editor, in an online

comment or post, or on a radio talk show, please describe," he

answered "N/A."

By 10:11 a.m., Juror 138 had received (but did not then

respond to) two more comments from his friends:

FRIEND 5: They're gonna take one look at you and tell you to beat it

- 13 - FRIEND 6: Did you get selected?

At 1:14 p.m. that same day, Juror 138 reentered the

discussion on the thread of his earlier post, as follows:

JUROR 138: There's 1200 or so of us...250 a day mon-fri this week go in full out survey 100's of ques and then we call back to see when we go back and they select 18 of us out of the 1200 but single people out one by one over the next month they are telling me the process will take until the 23rd or 24th...then the whole trial it self is going to be 3-4 months they say JUROR 138: Shud be crazy he was legit like ten feet infront of me today with his 5 or 6 team of lawyers...can't say much else about it tho...that's against the rules FRIEND 7: Whoa!! FRIEND 3: Since when does [Juror 138] care about rules? FRIEND 8: Play the part so u get on the jury then send him to jail where he will be taken care of JUROR 138: When the Feds are involved id rather not take my chances...them locals tho...pishhh ain't no thaang FRIEND 9: Yea super careful bc should you get picked any mention of anything can get you booted or call for mistrial..

Eighteen days later, not having yet seen any of the

foregoing Facebook exchanges, the court and counsel questioned

Juror 138 under oath. The court began by asking whether Juror 138

had followed the court's instructions regarding communication

about the case, to which the juror responded that he had:

THE COURT: Good. When you left last time you were here, I had instructed everyone to avoid any discussion of the subject matter of the case with anybody. You could talk about coming here, obviously, but -- and also to

- 14 - avoid any exposure to media articles about the case. Have you been able to do that? [JUROR 138]: Yeah, I haven't looked at anything. THE COURT: Keep your voice up so everyone can hear you. [JUROR 138]: Yeah. No, I haven't talked to anybody about it.

The court inquired into Juror 138's use of Facebook as follows:

THE COURT: Let me ask -- we asked you a little bit about social media, and you said you use Facebook? [JUROR 138]: Yes. THE COURT: I guess you post to it once or twice a week but you check it every day or something like that? [JUROR 138]: Yeah. We drive around in the city truck. If I'm not driving, I'm sitting in the passenger seat just playing on my phone unless we're working. But other than that, I don't really -- I'm not posting on it or talking to people on it. THE COURT: What's the nature of your use of it? Is it essentially personal, social- type things? [JUROR 138]: Yeah. THE COURT: Do you comment on public affairs or anything like that? [JUROR 138]: Yeah, I see what my friends are doing and comment on that. THE COURT: Anybody commenting about this trial? [JUROR 138]: No.

(emphasis added).

Having been thus assured that Juror 138 had followed the

court's instructions and had not seen any Facebook comments about

the trial, no counsel objected to Juror 138. The court thereafter

- 15 - placed him on its list of seventy-five provisionally qualified

jurors from which the actual jury of twelve jurors and six

alternates would be selected.4

After Juror 138 was provisionally qualified, defense

counsel obtained the social media postings of some potential

jurors, including Juror 138. On February 27, which the defense

described as "within days" of uncovering the social media posts,

the defense moved to excuse Juror 138 for cause. Defense counsel

pointed out that after being ordered not to "communicate about

this case or allow anyone to communicate about it with you by . . .

Facebook," and not to "discuss anything about this case with

anyone," Juror 138 promptly returned to Facebook to continue his

communications with his friends about the case. And, defense

counsel complained, some of the comments by Juror 138's friends

were particularly suggestive of bias and could potentially

influence Juror 138's actions during the case (e.g., "If you're

really on jury duty, this guys got no shot in hell"; and "Play the

part so u get on the jury then send him to jail where he will be

taken care of"). More significantly, Juror 138 assured the court

that he had not talked to anyone about the case, and when asked

whether anyone had commented "about this trial" on Facebook, he

4The district court ended up excusing five of these jurors for hardship, leaving a group of seventy provisionally qualified jurors.

- 16 - responded "No." Defense counsel argued that Juror 138's violation

of the court's instructions, potential bias, and dishonesty during

questioning warranted excusing him for cause. After the government

filed an opposition, defense counsel requested further questioning

of Juror 138 as an alternative remedy.

The district court addressed the defense's motion (along

with other motions to excuse jurors for cause) from the bench on

the morning of March 3, 2015, the day the parties were to exercise

their peremptory strikes. Juror 138 and the other provisionally

qualified jurors were in the courthouse that day. Nevertheless,

the district court denied the defense's motion without bringing

Juror 138 in for further questioning. It gave two reasons: first,

the defense should have raised its objection when voir dire was

being conducted; and second, the objection was speculative. We

review the district court's decision for abuse of discretion.5

United States v. Zimny,

(1st Cir. 2017).

5 The government argues that we should review the district court's decision not to permit further questioning of Juror 138 for plain error, because Tsarnaev failed to preserve his request for further questioning by not requesting it as an alternative remedy in his initial motion. But in his reply to the government's opposition to his motions to excuse jurors for cause, Tsarnaev requested further questioning as an alternative remedy for all jurors that he had moved to excuse (including Juror 138). And the district court considered and rejected this request with regard to all such jurors, without suggesting that Tsarnaev had waived this request with regard to Juror 138. So we consider the issue preserved on appeal.

- 17 - 2.

As to the timeliness of the defense's motion, the

district court required too much of defense counsel. Between

January 5 and 7, 2015, a total of 1,373 jurors showed up at the

courthouse and filled out questionnaires. The parties ruled out

some of those jurors based on their questionnaires alone, but

hundreds remained eligible for further narrowing through

individual voir dire. The court and the parties began that process

on January 15, individually questioning 256 prospective jurors

over the course of twenty-one court days. The process continued

until February 25, when the court had provisionally qualified

seventy-five prospective jurors from which the final panel would

be selected. And in addition to reviewing over one thousand

questionnaires and preparing for and conducting hundreds of

individual voir dire sessions, the defense was busy reviewing

discovery productions and trial exhibits, litigating pre-trial

motions, and otherwise preparing for trial in a high-profile

capital case.

Importantly, defense counsel brought the Facebook posts

to the court's attention in time for the court to investigate and

take any necessary corrective action before empaneling the jury.

See United States v. Appolon,

, 65 n.10 (1st Cir. 2012)

(holding that an objection was timely because it was made when

"the district court could have taken any necessary corrective

- 18 - action"). The defense filed its motion to excuse Juror 138 just

two days after the end of individual voir dire -- before the

parties exercised peremptory strikes, and while there was a list

of seventy-five provisionally qualified jurors from which to

select twelve jurors and six alternates. So the district court

could have brought Juror 138 in for further questioning before

empaneling the jury and, if that questioning revealed bias, simply

removed him from the list of provisionally qualified jurors.

This would have been especially easy to do during the

morning of March 3, when Juror 138 and the other provisionally

qualified jurors were present in the courthouse. Indeed, the

previous day, the court had suggested calling into the courthouse

for voir dire on the morning of March 3 a prospective juror whose

voir dire had been skipped and who had not been provisionally

qualified, with the possibility of inserting him into the list of

provisionally qualified jurors.6 Ushering Juror 138 into the

courtroom that same morning for supplemental questioning would

certainly have been far less burdensome than conducting an entire

voir dire of the prospective juror who had been skipped.

In these circumstances involving over one thousand

potential jurors of whom hundreds were selected for voir dire in

a death penalty case, we do not think it reasonable to require

6 The proposed make-up voir dire did not occur because the parties agreed to treat the juror as effectively excused.

- 19 - defense counsel to thoroughly investigate each prospective juror's

social media prior to voir dire where, as here, the juror's

questionnaire responses indicate that the juror has not commented

about this case online. Cf. Williams v. Taylor,

(2000) (when juror was silent in response to questions about

relations to witnesses, defense counsel did not fail to act

diligently by not checking public records that would have revealed

her former marriage to a government witness); see United States v.

French,

(1st Cir. 2018) ("French I") (rejecting

waiver argument where, taking a juror's questionnaire response

"according to its most customary meaning, there was no reason to

ask any follow-up" at voir dire). So although it is of course

possible that defense counsel could have discovered Juror 138's

Facebook posts in the eighteen days between January 5 (when the

posts were made) and January 23 (when Juror 138 appeared for

individual voir dire), we think counsel acted diligently under the

circumstances. See

(stating that filing a motion

"approximately one month" after learning of a juror's possible

dishonesty during jury selection, "while in the midst of preparing

for sentencing," constituted "sufficient diligence").

Finally, the government does not point to any advantage

that Tsarnaev gained by filing his motion after the end of

individual voir dire but before peremptory strikes, nor is one

obvious to us. For all these reasons, in the circumstances of

- 20 - this case, we conclude that the timing of the discovery of the

juror's Facebook postings did not obviate the need to determine

whether the juror could fairly adjudicate whether Tsarnaev should

be put to death.

3.

We turn next to the merits. We agree with the

government's summary in its brief of the rule of law that applies

to claims of juror misconduct: "[W]here a defendant makes a

colorable or plausible claim of juror misconduct, the district

court must investigate it." Gov. Br. at 133 (quoting Zimny,

).

We therefore conduct our inquiry in two steps. First,

we ask whether Juror 138's Facebook exchanges or his voir dire

responses raised a colorable or plausible claim of actual bias

incompatible with sitting as a fair juror in Tsarnaev's trial.

Second, because we answer the first question yes, we ask whether

the district court conducted an adequate investigation before

allowing Juror 138 to sit on the jury charged with deciding whether

Tsarnaev lives or dies. In both instances, our review is for abuse

of discretion. Zimny,

.

a.

The district court never in so many words determined

whether Tsarnaev's evidence raised at least a colorable or

- 21 - plausible claim of juror bias. The court did, however, label the

claim "largely speculative," explaining:

There are various possible explanations and none of them is, in my view, serious enough to warrant changing our provisional qualification, and in particular, none of the issues that were raised seem to me to suggest the presence of a bias that would be harmful to jury impartiality in this case. They're collateral matters about things, they are -- people close to them may have done, but none of them speak to actual bias in the case.7

The court based this conclusion on its review of the Facebook

posts, Juror 138's jury questionnaire, and Juror 138's voir dire

transcript.

Our disagreement with the district court's conclusion

begins with the nature of the Facebook comments. One friend of

Juror 138 believed that with Juror 138 on the jury, Tsarnaev would

have "no shot in hell." And another advised Juror 138 to "[p]lay

the part so u get on the jury then send him to jail where he will

be taken care of." Taken at face value, these comments certainly

can be read as suggesting that people who knew Juror 138 viewed

him as biased. If Juror 138's friends were to be believed that

Juror 138 would give Tsarnaev "no shot in hell" and that he would

lie to get on the jury and send Tsarnaev to jail to "be taken care

of," then Juror 138 was not the type of "fair impartial jur[or]"

7 The district court gave this general explanation with respect to Tsarnaev's motions to strike Juror 138, Juror 286, and several other prospective jurors not at issue in this appeal.

- 22 - that the Constitution requires. Press-Enter. Co. v. Superior Ct.

of Cal.,

, 510 n.9 (1984).

That being said, the district court was not required to

take the comments of the juror's friends at face value. Social

network exchanges are notoriously opinionated and often designed

primarily for attention, humor, and other such aims. The comments

themselves do not mean that they were accurate descriptions of

Juror 138, or that he would follow his friends' advice. Most

people in the United States in 2015 likely had friends who felt

that Tsarnaev should be put in jail to be "taken care of," and

many likely felt that his actions warranted a death penalty. It

is certainly not established that Juror 138 ascribed to that view,

or that he could not put aside his friends' suggestions just as he

might put aside his own preconceptions. Moreover, the exchange

here shows that Juror 138 was willing to remind his friends that

he needed to follow the rules. So, if he had disclosed his Facebook

exchanges about the trial, the district court would have been well

within bounds to find him unburdened by any predisposed bias, with

no need for further questioning.

The crucial problem with the district court's analysis

has less to do with the substance of the friends' comments than

with the juror's subsequent flat-out denial that any of his

Facebook friends was "commenting about this trial" when they told

him to play the part to get on the jury, avoid a mistrial, and

- 23 - send Tsarnaev to be taken care of. The government suggests that

it is not clear that the juror's denial was false because the juror

may have not construed his friends' comments as being "about this

trial." Gov. Br. at 129. This reading is a stretch. The Facebook

friend's encouragement to "send [Tsarnaev] to jail" bears directly

on the jury's core function of determining guilt. It would strain

common sense and ordinary understanding to declare that the jury's

determination of guilt -- the very purpose of a trial in a criminal

case -- is not an aspect of the "trial" covered by the district

court's question. More importantly, Tsarnaev "need not show at

the outset that [his] claim is so strong as to render contrary

conclusions implausible." French I,

. All that

matters preliminarily is whether Tsarnaev's reading is plausible.

See

(rejecting argument that alternative, benign explanations

for an apparent discrepancy negated the need for an investigation

because "[e]ach hypothesis is plausible, but insufficiently likely

so as to warrant rejecting without investigation the claim of juror

misconduct as improbable"). The government does not contend that

it is implausible to interpret Juror 138's voir dire answer as

inconsistent with the evidence of the Facebook comments. Nor does

the government dispute that Juror 138's exposure to his friends'

Facebook comments about the trial was material, and it was

unquestionably so. "Due process requires that the accused receive

a trial by an impartial jury free from outside influences."

- 24 - Sheppard v. Maxwell,

(1966). That is why the

district court instructed the jurors to avoid any media exposure

or communication with others about the case, and consistently asked

in individual voir dire whether they had complied with this

instruction.

Of course, an apparent discrepancy in a juror's answer

does not by itself prove dishonesty. The juror may have

misunderstood the inquiry, thought the posts did not concern the

trial, or forgotten the posts. Jurors are ordinarily not lawyers;

the whole process can be a bit of a mystery to them, and there is

no basis to assume that they are all careful wordsmiths who might

parse comments and inquiries like we do. See McDonough Power

Equip. v. Greenwood,

(1984) ("[J]urors are not

necessarily experts in English usage. Called as they are from all

walks of life, many may be uncertain as to the meaning of terms

which are relatively easily understood by lawyers and judges.").

If the discrepancy was the result of anything other than

dishonesty, we would find no abuse of discretion in the district

court's treatment of Juror 138.

The problem is that we cannot know the reason for the

discrepancy because no one asked Juror 138 for an explanation.

And it is plausible -- given Juror 138's engagement with his

friends' Facebook comments that many people would consider to be

about "this trial" -- that the juror's answer to the court's

- 25 - question was knowingly dishonest. If that were so, Juror 138's

dishonesty would be a powerful indication of bias. See, e.g.,

; French I, 904 F.3d at 116–18; Sampson v. United States,

(1st Cir. 2013). For that reason, we reject as

clearly unsupported the district court's conclusion that no

possible explanations for the discrepancy are serious. It is one

thing to have friends who say how to decide a case. It is quite

another to engage in communication about the case after being

instructed not to do so, and then feel compelled to cover up those

communications when asked point-blank by the court. See, e.g.,

United States v. Boney,

(D.C. Cir. 1992)

("[L]ying or failing to disclose relevant information during voir

dire itself raises substantial questions about the juror's

possible bias."); Burton v. Johnson,

(10th

Cir. 1991) (stating that a juror's "dishonesty, of itself, is

evidence of bias"); United States v. Colombo,

, 151–

52 (2d Cir. 1989) (explaining that knowing dishonesty during voir

dire is a powerful indicator of bias because it strongly suggests

partiality); United States v. Perkins,

(11th

Cir. 1984) (observing that a juror's "dishonesty, in and of itself,

is a strong indication that he was not impartial"). Even the

government acknowledges that "in most cases, the honesty or

dishonesty of a juror's response is the best initial indicator of

whether the juror in fact was impartial." Gov. Br. at 120 (quoting

- 26 - with approval McDonough,

(Blackmun, J.,

concurring)).

The government argues that we can tell now without any

further inquiry that Juror 138 was not being knowingly dishonest,

because he disclosed that some of his relatives told him at

Thanksgiving that they were jealous of his jury duty and others

wished him good luck. The government posits that if Juror 138

were trying to hide others' comments in order to get on the jury,

he would not have disclosed those communications. But mere

expressions of jealousy and good luck strike us -- as we expect

they may well have struck Juror 138 -- as far less indicative of

potential bias than comments that Tsarnaev has "no shot in hell"

if Juror 138 serves on the jury and that Juror 138 should "[p]lay

the part so u get on the jury then send him to jail where he will

be taken care of." We therefore think it at least plausible that

Juror 138 thought that disclosing his relatives' comments at

Thanksgiving would not significantly hurt his chances of being

selected, but disclosing the Facebook exchanges might. Moreover,

Juror 138 disclosed the Thanksgiving comments on the questionnaire

before his friends encouraged him to "[p]lay the part" to get on

the jury and warned him to be "super careful bc should you get

picked any mention of anything can get you booted or call for

mistrial." So Juror 138's disclosure of his relatives'

Thanksgiving comments does not render it implausible that he

- 27 - intentionally hid his friends' subsequent Facebook comments in

order to get on the jury.

Given the substance of the Facebook exchange and the

apparently direct inconsistency between Juror 138's voir dire

answers and his actual conduct, the record provides colorable

support for the claim that a biased juror employed dishonesty to

make his way onto the jury. See also Clark v. United States,

(1933) (observing that a juror's bias can be "gathered

from the disingenuous concealment which kept her in the box");

Colombo,

("[I]f . . . the juror's motive in

lying on the voir dire was precisely to prevent . . . her dismissal

from the case[,] . . . [i]t [would] reflect[] an impermissible

partiality on the juror's part.").

b.

Having held that Tsarnaev raised a colorable claim of

juror misconduct, we now assess whether the district court

adequately investigated that claim. The district court's duty to

investigate colorable claims of juror misconduct is "unflagging."

Zimny,

(quoting United States v. Paniagua-Ramos,

(1st Cir. 2001)); see Dennis v. United States,

(1950) ("[W]hile impaneling a jury the trial

court has a serious duty to determine the question of actual

bias . . . ."). As the Supreme Court explained in this very case,

"the district court's duty is to conduct a thorough jury-selection

- 28 - process that allows the judge to evaluate whether each prospective

juror is 'to be believed when he says he has not formed an opinion

about the case.'" Tsarnaev,

(quoting Mu'Min v.

Virginia,

(1991)).

Faced with a plausible claim of juror misconduct, the

district court's "primary obligation [was] to fashion a

responsible procedure for ascertaining whether misconduct actually

occurred and if so, whether it was prejudicial." Zimny,

(quoting United States v. Rodriguez,

(1st

Cir. 2012)). The district court "has broad discretion to determine

the type of investigation which must be mounted."

(quoting

Rodriguez,

). "Notwithstanding this broad

discretion, however, a district court 'judge does not have

discretion to refuse to conduct any inquiry at all regarding the

magnitude of the taint-producing event and the extent of the

resulting prejudice' if confronted with a colorable claim of juror

misconduct."

(quoting United States v. Lara-Ramirez,

(1st Cir. 2008)). "[I]t is the circumstances of each case

that will determine the level of inquiry necessary."

(quoting

Rodriguez,

).

The inadequacy of the district court's investigation in

this case follows inescapably from our previous discussion

centering on the importance of learning the reason for Juror 138's

inaccurate voir dire answer. The Supreme Court has emphasized the

- 29 - importance of a juror's "motives for concealing information" in

exploring a claim of juror bias. McDonough,

; see

(Blackmun, J., concurring) (agreeing with the majority that,

"in most cases, the honesty or dishonesty of a juror's response is

the best initial indicator of whether the juror in fact was

impartial");

(Brennan, J., concurring in the judgment)

(stating that "whether an inaccurate answer was inadvertent or

intentional" is a "factor[] to be considered" in determining juror

bias).

In line with this guidance from the Supreme Court, our

circuit precedent requires that to rule adequately on a claim of

juror bias premised on dishonest voir dire responses, the district

court must consider both "the information that the dishonest juror

failed to disclose and the reason behind the juror's dishonesty."

French I,

(emphasis in original) (quoting Sampson,

)). That is because "[a]lthough juror dishonesty,

by itself, is not sufficient to demonstrate bias, it can be a

powerful indicator of bias." Sampson,

. This

understanding accords with the Supreme Court's instruction in

McDonough as well as case law from other circuits that we have

already cited, above.

In rejecting Tsarnaev's allegation that Juror 138 lied

under oath in order to get on the jury to do what his friends

urged, the district court did not claim to have relied on its prior

- 30 - face-to-face impressions of Juror 138. Nor would it be reasonable

to infer that the court did so. Juror 138 (whose individual voir

dire was on January 23, 2015) was just one of 256 prospective

jurors questioned over the course of 41 days, from January 15

through February 25. Rather, the district court relied solely on

its review of the Facebook comments, the questionnaire answers,

and the voir dire transcript. All that reading could have done is

confirm what was asked, what was answered, and what the Facebook

exchanges were. As we have already explained, not even the

government argues that those writings cannot plausibly be read as

materially inconsistent. Nor is this a case in which the very

nature of an apparently dishonest answer inexorably points to an

explanation other than juror bias.

So while the reading of the record undertaken by the

district court could have revealed the questions to be addressed

in an investigation (for example, did Juror 138 mislead the court

intentionally and, if so, why?), nothing in that reading could

have answered the necessary inquiry. Indeed, precisely because

the court was unaware of the Facebook exchange when the voir dire

occurred, it quite obviously could not have undertaken the

pertinent inquiry, much less formed an opinion concerning the

answer to that inquiry. As we have explained previously, "we do

not see how a court can say whether the juror in this instance was

unduly biased without knowing why [he] answered as [he] did."

- 31 - French I,

. In the words of the Eighth Circuit,

"the court should have questioned the juror to find out 'his

reasons for holding back . . . his pertinent information.'" United

States v. Tucker,

(8th Cir. 1998) (quoting

United States v. St. Clair,

(8th Cir. 1988));

see also Green v. White,

(9th Cir. 2000) (finding

that it was error for the district court to conclude that juror's

false statements were unintentional without inquiring whether

juror's motivations for lying were benign).

We therefore hold that the district court exceeded the

scope of its discretion by deciding not to pose any further

questions to Juror 138 after being confronted before the jury was

empaneled with a plausible claim of juror misconduct. In the

circumstances presented here, more needed to be known before

concluding that Juror 138 could determine Tsarnaev's fate. The

right to an impartial jury is a "constitutional bedrock." Sampson,

. And "the concern for an impartial jury is

certainly at its highest when a defendant's life is on the line."

French I,

. Voir dire examination of jurors "serves

to protect that right by exposing possible biases, both known and

unknown, on the part of potential jurors." McDonough,

. As the Supreme Court has explained, "[t]he necessity of

truthful answers by prospective jurors if this process is to serve

its purpose is obvious."

So when there is a plausible claim

- 32 - that a prospective juror lied in a manner that may reveal bias, a

court need conduct some inquiry reasonably calculated to determine

whether the prospective juror did lie and, if so, why.

B.

1.

We consider next the challenge to Juror 286. On the day

of the marathon bombings and in the days after, Juror 286 made a

series of posts on Twitter related to the bombings and the

aftermath. On April 15, 2013, the day of the bombings, Juror 286

made the following "tweets" and "retweets":8

• She retweeted: "Twitter is great source of info

during a crisis. Only downside is accuracy suffers

in quest to be first. #prayforboston"

• She retweeted: "BOSTON: POLICE AND FBI URGING

ANYONE WITH VIDEO OF THE FINISH LINE AT THE TIME OF

THE EXPLOSION SHOULD PLEASE COME FORWARD. RETWEET."

• She tweeted: "Need something to make you smile and

warm your heart after today's tragedy at

#BostonMarathon , take a look at #BostonHelp"

8 A "tweet" is an original Twitter post by the user. A "retweet" is a reposting of another user's Twitter post.

- 33 - • She tweeted: "Little 8yr old boy that was killed

at marathon, was a Savin Hill little leaguer :-(

RIP little man #Dorchester #bostonmarathon"

• She retweeted: "Please be patient & polite to

officers who will be doing extra security checks in

#Boston. They're trying to keep us all safe."

The next day, Juror 286 made the following posts on

Twitter:

• She retweeted: "1st-year #Patriots WR

@DannyAmendola pledges to donate $100 for each '13

reception to Boston Marathon Relief Fund & $200 for

each drop."

• She retweeted: "The forgotten heroes of the day are

the surgeons doing nonstop surgery all day at some

of the best hospitals in the world. Saving many

lives"

• She retweeted: "A sad day but a day where

training, pre-planning, unified command and a quick

first response by many saved lives. Thanks to All"

On April 19, 2013, the day of the lockdown and the search

for Tsarnaev, Juror 286 made the following posts on Twitter:

- 34 - • She tweeted: "They must've got some blood test

back and know this kid is just bleeding to death

somewhere #bostonbombing"

• She tweeted: "it's worse having to work knowing ur

family is locked down at home!! Finally home locked

down w/them #boston"

• She tweeted: "Love this!!!" with a photo depicting

the phrase "Boston Strong."

That same day, presumably after Tsarnaev was caught,

Juror 286 made the following posts on Twitter:

• She retweeted: "Monday started in celebration and

ended in tragedy. Today began in tragedy and ended

in celebration. You can't keep us down.

#BostonStrong"

• She retweeted: "Sleep tight #Boston!

#Bostonyou'remyhome"

• She retweeted: "Congratulations to all of the law

enforcement professionals who worked so hard and

went through hell to bring in that piece of

garbage."

• She retweeted: "Told y'all. Welcome To Boston The

City Of CHAMPS! We get our shit DONE! #BostonStrong

- 35 - #617," with this text followed by a string of

emojis.

On April 20, 2013, Juror 286 made the following posts on

Twitter:

• She retweeted: "I love this! The duckling statues

in the Public Garden all have signs saying, 'Boston

Strong' w/ race numbers 'Qck,'" with a photo of a

duckling statue with such a sign.

• She retweeted: "Officer Donohue and Officer

Collier... Graduation day at the MBTA Police

Academy. Please keep both in your prayers," with a

photo of the two officers.

In the years between the bombings and the trial,

Juror 286 occasionally made more Twitter posts related to the

bombings:

• On October 13, 2013, she retweeted: "Marathon

bombing victim Jane Richard sang the national

anthem with other children from St. Ann's Parish at

Fenway," with an accompanying photo.

• That same day, she retweeted: "I can't believe

little Jane Richard sang the National Anthem at the

@RedSox game and we didn't get to see it! Ugh!

#BostonStrong"

- 36 - • On April 29, 2014, she retweeted: "#BostonStrong:

Henry Richard, Martin's older brother, seen running

strong in today's BAA Youth 2014 Relay Races," with

an accompanying photo.

On January 5, 2015, Juror 286 showed up at the

courthouse and completed her juror questionnaire. She disclosed

that she used Facebook, Instagram, and Twitter. In response to

the question asking "[i]f you have commented on this case in a

letter to the editor, in an online comment or post, or on a radio

talk show, please describe," she answered "don't believe I have."

Another question asked, "If you or, to the best of your

knowledge, a family member, or close friend were personally

affected by the Boston Marathon bombings or any of the crimes

charged in this case (including being asked to 'shelter in place'

on April 19, 2013), please explain." She answered "N/A."

Juror 286's questionnaire answers also revealed that she

had two children and that she was born and raised in Dorchester,

a neighborhood in Boston, Massachusetts, where she had lived for

the past forty-two years.

Juror 286 appeared for individual voir dire on

February 4, 2015. Regarding her social media use, Juror 286 stated

as follows:

THE COURT: We asked a little bit about social media you use. You use what? Facebook?

- 37 - [JUROR 286]: Facebook, Twitter, Instagram. THE COURT: Mostly for family or social? [JUROR 286]: Yeah, just social. Facebook, I keep up with friends and relatives. Twitter, I watch TV and kind of tweet while I'm watching TV with other people that are watching the same programs that I'm watching. THE COURT: Does that include news programs? [JUROR 286]: No.

During questioning by defense counsel, the following

exchange occurred:

[DEFENSE COUNSEL]: Okay. At the restaurant, did your employees or coworkers, colleagues, talk about the Boston Marathon bombing when it happened? [JUROR 286]: No. I work 20 miles out of the city. We were actually really busy. I was a waitress at the time. I was kind of like joking with my boss I wanted to go home. Boston was -- I live in Boston, and Boston was on lockdown. I'm, like, I have to go home. We're on lockdown. We were really busy. All the restaurants around rely on people coming from public transportation. It was shut down. We were already there and open. It's a breakfast restaurant so all -- we open at 7 a.m. We were all there at 6:00 in the morning. Yeah, we were busy. We were working.

Unaware of Juror 286's Twitter activity laid out above,

neither party objected to her provisional qualification, and she

was added to the list of provisionally qualified jurors.

After Juror 286's voir dire, defense counsel discovered

her Twitter posts. On February 27, defense counsel moved to excuse

Juror 286 for cause on the basis of these posts. The defense

- 38 - argued that the posts revealed Juror 286's "community ties and

allegiances, as well as her patent bias in favor of law

enforcement." The defense also argued that Juror 286's "lack of

candor in omitting [the posts] from her juror questionnaire"

rendered her unfit to serve on the jury. Defense counsel requested

that Juror 286 be excused or, in the alternative, called in for

further questioning.

The district court denied this request from the bench

four days later in the manner described above, finding the request

both untimely and speculative. As with Juror 138, the district

court in its ruling did not claim to rely on any memory of its

face-to-face interview with Juror 286. Juror 286 became a seated

juror and, ultimately, served as the jury foreperson. Again, our

review is for abuse of discretion. Zimny,

.

2.

For the reasons described above with respect to

Juror 138, we disagree with the district court's conclusion that

Tsarnaev's challenge to Juror 286 was untimely. Defense counsel

acted diligently under the circumstances and brought Juror 286's

Twitter posts to the court's attention in time for the court to

investigate and take any appropriate action before empaneling the

jury.

- 39 - 3.

As to the court's finding that Tsarnaev's challenges

were speculative, Tsarnaev argues that the Twitter posts reveal

two dishonest answers by Juror 286. First, Tsarnaev argues that

Juror 286 was dishonest when she wrote that she had not "commented

on this case" online. Second, Tsarnaev argues that Juror 286

dishonestly answered "N/A" when asked if she or her family had

sheltered in place, as shown by her Twitter post stating that she

had been working while "knowing [her] family is locked down at

home" and that she was "[f]inally home locked down w/them."

We focus first on Juror 286's nondisclosure of her

social media activity. When asked in her questionnaire whether

she had "commented on this case in a letter to the editor, in an

online comment or post, or on a radio talk show," she answered

"don't believe I have." The government concedes that this question

and answer were material. And Juror 286 gave a negative answer

despite having tweeted and retweeted various posts -- both around

the time of the bombings and in the years following -- about the

bombings, the aftermath, the victims, the law enforcement

personnel involved, and the community's response.

The posts themselves are not particularly strong

indicators of bias. Many of them were not Juror 286's own words

but rather retweets of what others have said. And it would be

natural for Juror 286 -- like many others whose city had been the

- 40 - location of such a horrific event as the marathon bombings -- to

feel scared while the situation was developing, to stay abreast of

the activities during the aftermath, and to share in a sense of

community pride and resilience in the years following. Again, the

critical issue here is not the posts themselves but instead the

reason for their nondisclosure. If Juror 286 intentionally

answered the question dishonestly, thinking that discovery of her

posts referring to Tsarnaev as a "piece of garbage" and repeatedly

invoking the "Boston Strong" spirit could disqualify her from

serving as a juror, then that would be a powerful indicator of

bias. See, e.g., McDonough,

; French I, 904 F.3d

at 116–18; Sampson,

.

The government posits that "Juror 286 could have

reasonably believed that tweeting or retweeting about events

surrounding the 2013 Boston Marathon was not 'comment[ing] on this

case'" because "the word 'case' ordinarily refers to legal

proceedings." Gov. Br. 123. Similarly, the government argues,

"she might have understood the question’s reference to 'a letter

to the editor, in an online comment or post, or on a radio talk

show,' as referring to something more formal than a tweet or

retweet."

We agree with the government that Juror 286 "could have"

or "might have" understood the question as the government proposes.

But that does not mean -- nor does the government argue -- that it

- 41 - is implausible that Juror 286 understood the question to encompass

Twitter posts about the events surrounding the marathon bombings.

It is certainly a reasonable reading of "this case" in the jury

questionnaire to refer not just to the legal proceedings themselves

but also to the bombings giving rise to the legal proceedings.

Indeed, the Supreme Court opinion in this very case describes the

question this way. See Tsarnaev,

(describing the

question as "ask[ing] whether the prospective juror had commented

or posted online about the bombings"). And the most natural

reading of "online comment or post" would certainly include posts

made on Twitter.

There are various possible explanations for Juror 286's

questionnaire answer. Perhaps she misunderstood the question as

the government suggests. Perhaps she forgot about the Twitter

posts. Or perhaps she answered the question dishonestly because

she thought it would increase her chances of getting onto the jury.

Upon reviewing Juror 286's Twitter posts, her questionnaire, and

her voir dire transcript, each of these explanations is plausible,

as are, perhaps, others. But the only way to shed more light on

which one is the truth is to ask Juror 286, which the district

court declined to do. As with Juror 138, more investigation was

required and Juror 286 was readily available in the courthouse.

We therefore hold that the district court exceeded the reach of

its discretion by not taking a few minutes to ask Juror 286 why

- 42 - she answered as she did when asked whether she had commented on

the case online.

As to Tsarnaev's second claim of bias with respect to

Juror 286, the government admits that Juror 286's response of "N/A"

to the shelter-in-place question was "inaccurate." Gov. Br. at

124. It appears from the record, however, that the defense never

specifically argued to the district court that this inaccuracy

posed a risk of juror bias. As described above, Tsarnaev's motion

to excuse Juror 286 focused on Juror 286's failure to disclose her

social media activity, not her failure to disclose that she and

her family had sheltered in place. See United States v. Barnes,

(1st Cir. 2001) ("Trial judges are not expected

to be mind readers . . . ."). The government though, does not

argue waiver. And given our holding that the nondisclosure of the

Twitter posts requires remand, we need not decide whether Tsarnaev

waived his second ground or, if not waived, whether it would be

sufficient to warrant further investigation on its own. Because

the district court on remand will be conducting an inquiry aimed

at assessing the honesty of the juror's answers, it would be

prudent to inquire into the shelter-in-place issue as well.

C.

Tsarnaev asks that we skip any further investigation and

hold that the questionnaires, voir dire transcripts, and evidence

of the jurors' social media comments were sufficient to show that

- 43 - Jurors 138 and 286 should have been excused for cause. This

holding would require vacating Tsarnaev's sentence and ordering a

new penalty-phase proceeding.9 See French I,

("The

presence of a juror whose revealed biases would require striking

the juror for cause in a criminal case is structural error that,

if preserved, requires vacatur.").

We decline this invitation. We have not held that either

juror manifested a disqualifying bias. Rather, as we explained

above, and as the district court recognized, there are innocuous

potential explanations for both jurors' conduct and voir dire

answers. The two jurors could have misunderstood the court's

instructions or questions, or they could have forgotten about the

social media posts by the time they were summoned for voir dire.

Even a dishonest answer to a voir dire question does not

automatically render a juror unfit to serve, if the district court

determines that the reason for the dishonesty is not one that

renders the juror incapable of deciding the case on the evidence.

See McDonough,

("The motives for concealing

information may vary, but only those reasons that affect a juror's

impartiality can truly be said to affect the fairness of a

trial."). The district court's error was in failing to conduct an

9As noted in our previous opinion in this case, Tsarnaev's counsel conceded that Tsarnaev's admission of guilt at trial would allow us to affirm his guilt-phase convictions despite the alleged juror-misconduct errors. Tsarnaev,

n.33.

- 44 - inquiry sufficient to rule out the more pernicious explanations.

We remand to the district court to conduct that inquiry in the

first instance. See French I,

.

Tsarnaev cites Morgan v. Illinois,

(1992),

and Turner v. Murray,

(1986), for the proposition that

"[i]n general, inadequate voir dire results in vacatur, not

remand." Def. Reply Br. at 59. But those cases involved a trial

court's refusal to ask a general voir dire question proposed by

the defendant, rather than the failure to investigate a particular

claim of juror misconduct. See Morgan,

(trial

court refused to ask whether prospective jurors would

automatically vote to impose death penalty if they found the

defendant guilty); Turner, 476 U.S. at 30–31 (trial court refused

to question prospective jurors about racial prejudice). When faced

with a district court's failure to investigate plausible (but not

yet proven) claims of juror misconduct, we have said that "[w]e

are unwilling to disturb [a defendant's] conviction on [an]

undeveloped evidentiary record when an adequate inquiry might

reveal that the alleged juror misconduct did not occur in the first

place." Zimny,

; see French I,

("[W]e are aware of no case in which, faced with a potentially

biased juror and the need to investigate further, an appellate

court has ordered a new trial without first permitting the district

court to investigate. We decline to do so here."). In McDonough,

- 45 - for example, the Supreme Court stated that the appellate court

should have remanded for an evidentiary hearing -- rather than

itself ruling on the defendant's new trial motion -- when a juror

failed to provide an accurate answer to a voir dire question. 464

U.S. at 551 n.3, 556. We adhere to these principles in this case,

where remand may reveal that there was no juror bias warranting a

new penalty-phase proceeding.

Tsarnaev argues that such an inquiry at this point would

be futile because the jurors "would have strong, perhaps

insurmountable, incentives to deny having answered dishonestly and

to insist on their impartiality." Def. Reply Br. at 58. He notes

that an admission of prior perjury could give rise to criminal

liability for the jurors. He also points to the jurors' post-

sentencing social media posts, which he contends suggest that they

would want to insulate the verdict from challenge. After the jury

returned its penalty-phase verdict, Juror 138 posted on his

Facebook page, "That's a wrap." On the day of the sentencing, he

wrote that he had gone "[b]ack to boston today...see the end of

this...for now anyway." He later posted, "Scum," and, "Atleast

they finally moved that trash out of the state and making their

way to the dungeon where he will be forgotten about until his time

comes." Similarly, Juror 286 changed her Facebook profile picture

to a "Boston Strong" photo after sentencing. When Tsarnaev moved

for a new trial, she tweeted that one "shouldn't be allowed to

- 46 - appeal when you stand up at the end of your trial and declare 'I

did it' #offtherecord."10 "If the jurors lied during voir dire,"

Tsarnaev reasons, "it strains plausibility to think that either

would so admit now, when truthfulness would result in vacatur of

the death sentence that both believe should stand." Def. Reply

Br. at 58–59.

No doubt any juror would have strong incentives to avoid

admitting having committed perjury during voir dire. We also

expect that most jurors, having taken time out of their daily lives

to receive evidence at trial, deliberate with other jurors, and

reach a verdict that they believe is just, would prefer not to

have that verdict disturbed -- especially as a result of their own

actions. These same concerns are present in any post-trial

proceeding in which the honesty of jurors' voir dire answers is

10 These posts, made after the jurors had received all the evidence and deliberated on Tsarnaev's guilt and punishment, do not support Tsarnaev's claim that the jurors were biased going into the trial. As the government points out, the holding of such a view by one who has properly considered all the evidence "is neither surprising nor problematic." Gov. Br. at 132; cf. Liteky v. United States,

, 550–51 (1994) ("The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge's task."). Nor did the post-trial comments violate any orders of the court. They were made after the district court instructed the jurors that "[y]ou are now free to talk with your family and friends about the case."

- 47 - called into question. But such concerns did not prevent us from

remanding in, e.g., French I, where the defendants similarly

sought a new trial based on claims of juror dishonesty during voir

dire. See

. In this case, we have no doubt that

the able district court judge can do what judges regularly do --

form a considered opinion about the sufficiency of the jurors'

explanations once those explanations are given and explored.11

See, e.g., United States v. French,

, 121–24 (1st Cir.

2020) ("French II") (affirming the district court's "rigorous and

well thought-out" methodology for probing a claim of juror

dishonesty years after trial).

Finally, we provide guidance about the burden of proof

that will apply on remand, given the amount of time that has passed

since Tsarnaev initially sought further questioning. Our

precedent is clear that, generally speaking, a defendant seeking

to overturn a verdict based on alleged juror bias bears the burden

of proving such bias by a preponderance of the evidence.

French II,

; Sampson,

. But in

French I, we observed that it would be unfair if a defendant's

failure to meet that burden was due to faded memories resulting

from the government's opposition to a defendant's timely and

Indeed, an apt example is found in the district court's 11

face-to-face inquiry of Juror 355, addressed in a later section of this opinion.

- 48 - meritorious request for further questioning.

.

Given our holding that Tsarnaev made a timely and meritorious

request for further questioning of Jurors 138 and 286, should a

faded memory preclude the court from being able to determine

whether a juror should have been excused for cause, a new penalty-

phase trial will be required. Importantly, this is not to say

that faded memories per se call for a new penalty-phase trial. As

in French II, even in the face of no affirmative memory pinpointing

the reason for an answer, a court might still find an absence of

any motive "that would cast doubt on [the juror's] impartiality."

; see

(affirming because "the testimony elicited

at the evidentiary hearing and the district court's

findings" -- although lacking an affirmative explanation for the

false answer -- did "eliminate[] the motives that usually tend to

show bias, and there [was] no suggestion in the record that [the

juror] had some other motive that would cast doubt on her

impartiality").

III.

Tsarnaev's third remaining claim is that the district

court erred in concluding that another prospective

juror -- Juror 355 -- had views on the death penalty that

disqualified him from sitting on the jury. Tsarnaev argues that

the district court's dismissal of Juror 355 violated Tsarnaev's

Sixth Amendment right to an impartial jury, and therefore that his

- 49 - sentence must be vacated. For reasons we will explain, we uphold

the district court's dismissal of Juror 355.

At the time of Tsarnaev's trial, Juror 355 had been a

criminal defense attorney for over twenty-two years, most recently

for a Massachusetts public defender agency. Like the other

prospective jurors, he filled out the juror questionnaire on

January 5, 2015. In response to a question asking for his general

views on the death penalty, he wrote, "Since it is legal, it should

be the rarest of punishments. It is much too prevalent in the

country." Asked whether those views were informed by his

religious, philosophical, or spiritual beliefs, he answered,

"Killing people, especially gov't sponsored killing, is generally

wrong. While I can imagine a scenario where facts and law call

for it, it is an exceedingly rare case." On a scale from 1 to 10,

with 1 representing "a belief that the death penalty should never

be imposed" and 10 representing "a belief that the death penalty

should be imposed whenever the defendant has been convicted of

intentional murder," Juror 355 circled "2." Asked about his

"feelings about the death penalty in a case involving someone who

is proven guilty of murder," he selected from a list: "I am opposed

to the death penalty but I could vote to impose it if I believed

that the facts and the law in a particular case called for it."

Another question asked more specifically whether he could

conscientiously vote for the death penalty if he found Tsarnaev

- 50 - guilty and decided the death penalty was the appropriate

punishment. Juror 355 checked the box for "I am not sure" and

explained, "I cannot possibly prejudge his guilt or potential

punishment at this stage."12

At his individual voir dire session, Juror 355 said that

his work as a criminal defense attorney would not affect his

impartiality. The court and counsel then inquired about his views

on the death penalty. Juror 355 stated that he accepted the

legality of the death penalty, but said, "I mean, if I was asked

to vote on it, I would probably vote against it because of my

belief that it is overused." In explaining his selection of "2"

on the scale from 1 to 10, he stated, "[W]hen I found out I was

going to be in this pool, I did a lot of soul-searching, and I

came to the conclusion that because I believe it should be in the

most rarest of situations, that's why I'm down at that end, but I

could foresee situations where I might consider it appropriate."

Asked to confirm whether he could envision a case where he could

vote for the death penalty, he said, "After a lot of thought and

soul-searching, I think I could."

The court then attempted to explore whether this case

was such a case. The court referred to the questionnaire question

12 Juror 355 gave a near-identical answer to an analogous question asking whether he could conscientiously vote for life imprisonment without the possibility of release.

- 51 - asking whether Juror 355 could conscientiously vote for the death

penalty in this case, and then asked, "[I]f you had intellectually

concluded the death penalty was appropriate, could you actually

vote for it; in other words, would you have any moral or other

scruple about voting for it even if you were convinced

intellectually that there was a case for it to be made?"

Consistent with his response on the questionnaire, Juror 355

responded, "I find it very difficult to answer that without hearing

everything." The government then tried again, with a similar

result:

[PROSECUTOR:] Let me just kind of go right where Judge O'Toole just cut off, which was -- the question was if you found Mr. Tsarnaev guilty and you decided that the death penalty was the appropriate punishment, could you conscientiously vote for the death penalty. So it says -- the question is assuming -- and you're a lawyer. The question is assuming that he's guilty and that you found that the death penalty was appropriate. [JUROR 355]: I guess part of my problem is that I'm disturbed that I have to assume his guilt at this stage without hearing anything and to prejudge the particular case I'm asked to come and judge. I don't know that I really want to exercise that fantasy. And I'm sorry if I'm being difficult about it.

Faced with Juror 355's reluctance to consider

hypotheticals about the case at hand, the court stepped in to

"generalize" the question by abstracting away from the facts of

Tsarnaev's case. The court asked:

- 52 - If you were sitting on a death penalty case where the defendant -- that is, when I say that, a capital case, and the defendant is found guilty of a capital crime, and you concluded that for that defendant and for that crime the death penalty was an appropriate punishment, could you conscientiously vote to impose it in that case?

And Juror 355 answered:

If, after hearing the Court's instructions, and if I believed it was one of those -- it fit into one of those rare cases where I believed the death penalty should be imposed, having understood the law as given to me, then, yes, I could vote to impose the death penalty.

The court and the government then probed what Juror 355

meant by "one of those rare cases" in which he could vote to impose

the death penalty. The following exchange occurred:

THE COURT: Do you have a collection of the category of cases you're thinking of? Do you have some examples? [JUROR 355]: I don't really. [PROSECUTOR]: Well, can you imagine any case that you would think is appropriate for the death penalty? [JUROR 355]: Yes. [PROSECUTOR]: What? [JUROR 355]: I think Slobodan Milosevic was close, if not a prime example.13 Again, I didn't do that trial. [PROSECUTOR]: So genocide? [JUROR 355]: Genocide's a good starting point. [PROSECUTOR]: Okay. Anything other than genocide?

13 Slobodan Milosevic was a former president of Serbia who "led a campaign of genocidal aggression during the Balkan wars of the 1990s." Tsarnaev,

n.20.

- 53 - [JUROR 355]: I mean, I think -- I cannot say that I have sat and thought about a list of particular crimes or severity of crimes where I would have a checklist of what I thought was appropriate for the death penalty or not. And having never worked on a death penalty case, I've never even read an instruction about what, at least legally, is considered for the death penalty or not. I mean, everybody uses the example if somebody hurts your child, you know, a child, that's sort of a prime example of where people can go. But I like to think that we all take a step back and that's why we have juries decide rather than letting our emotions take over. Without -- I guess that's my answer. I have not come up with a list of cases where I think it would be appropriate. I mean, I'd have to listen to the Court's instructions, I would have to judge the facts in front of me and determine whether or not that satisfied me.

. . .

[PROSECUTOR]: And in answer to Question 92 which you filled out on January 5th, you said, "Killing people, especially government-sponsored killing, is generally wrong. While I can imagine a scenario where facts and law call for it, it is an exceedingly rare case." So you wrote that as your answer to 92, right? [JUROR 355]: Yes. [PROSECUTOR]: And there what were you referring to as you can imagine a scenario where facts and law call for it? [JUROR 355]: The Milosevic example is usually the one I rest on when I say I can immediately come up with a scenario. Whether or not there are other scenarios, again, without knowing specifics, I find it difficult to answer the question.

- 54 - After the government finished questioning Juror 355,

counsel for the defense asked, "[I]f in your conscience, your

individual conscience, you decided that the death penalty was an

appropriate sentence for [a] given set of facts, the question is

could you then actually vote to impose it?" Juror 355 replied, "I

think I could," and when asked whether he was "pretty confident of

that answer," he answered, "Yes."

Following individual voir dire, the government moved to

strike Juror 355, arguing that he was biased as a criminal defense

attorney and that his views on the death penalty impaired his

ability to serve as a juror in Tsarnaev's capital case. The

defense contested both claims. The district court rejected the

government's claim of bias based on Juror 355's work as a criminal

defense attorney, but agreed that Juror 355's approach to the death

penalty was too limited for Tsarnaev's trial. It therefore granted

the government's motion. In doing so, the court stated:

So this really is not -- I don't approach this at all on a categorical way. Everybody is different, and the value of this process is you can sit here five feet away and you can sense the being. And I -- my sense of him is different from my sense of the last juror that we just qualified who I thought is open to the possibility of the death penalty in a way that I do not think that [Juror 355] is. I agree that his -- the zone of possibility is so narrow, I think you would have to regard it as substantially impaired, this is the genocide issue, in contrast to her -- the other juror's examples were more possible, I guess, in the world that we'll be

- 55 - operating in. So I think he's not qualified under the death penalty question. I would not exclude him just because of his criminal justice -- criminal defense work. . . . I think it may explain where his alignment is on these issues, but ultimately, it was his answers to the questions and my sense of it. He was a learned witness, in a sense. He knew what we were talking about whereas others don't necessarily, and I guess that could go in either direction. But in the end, it was not convincing to me that he was going to be truly open in the way that would be necessary.

Ruling on a motion to exclude a prospective juror based

on the juror's attitude toward the death penalty, as the district

court did here, requires a careful balancing of important

interests. On the one hand, the defendant has a "right to an

impartial jury drawn from a venire that has not been tilted in

favor of capital punishment by selective prosecutorial challenges

for cause." Uttecht v. Brown,

(2007). So the court

may not exclude prospective jurors "simply because they voiced

general objections to the death penalty or expressed conscientious

or religious scruples against its infliction." Witherspoon v.

Illinois,

(1968). On the other hand, the

government has a "strong interest in having jurors who are able to

apply capital punishment within the framework [that the] law

prescribes." Uttecht,

. So the court may exclude a

prospective juror if "the juror's views would 'prevent or

substantially impair the performance of his duties as a juror in

- 56 - accordance with his instructions and his oath.'" Wainwright v.

Witt,

(1985) (quoting Adams v. Texas,

(1980)). Thus, trial courts face "the difficult task of

distinguishing between prospective jurors whose opposition to

capital punishment will not allow them to apply the law or view

the facts impartially and jurors who, though opposed to capital

punishment, will nevertheless conscientiously apply the law to the

facts adduced at trial." Id. at 421.

When reviewing a trial court's handling of this

difficult task, we "owe deference to the trial court," Uttecht,

, and we reverse only for abuse of discretion, United

States v. Sampson,

(1st Cir. 2007). The deference

is because of the trial court's "superior position to determine

the demeanor and qualifications of a potential juror." Uttecht,

. We appellate courts have nothing to go on but a

cold transcript containing the text of the questions asked and the

juror's responses. But "determinations of juror bias cannot be

reduced to question-and-answer sessions which obtain results in

the manner of a catechism." Witt,

. The appellate

record displays only the words that were spoken -- not how they

were spoken or the body language of their speaker. "[D]emeanor,"

the Supreme Court has said, is "a factor of critical importance in

assessing the attitude and qualifications of potential jurors."

Uttecht,

; see

("Leading treatises in the area

- 57 - make much of nonverbal communication."). The appellate record

therefore cannot possibly capture all that goes into a

determination of juror qualification.

By contrast, the trial court is "[f]ace to face with

living witnesses." Witt,

(quoting Marshall v.

Lonberger,

(1983)). So "[d]espite this lack of

clarity in the printed record . . . there will be situations where

the trial judge is left with the definite impression that a

prospective juror would be unable to faithfully and impartially

apply the law."

at 425–26. Accordingly, "[e]ven when '[t]he

precise wording of the question asked of [the venireman], and the

answer he gave, do not by themselves compel the conclusion that he

could not under any circumstance recommend the death penalty,' the

need to defer to the trial court remains because so much may turn

on a potential juror's demeanor." Uttecht,

(second

and third alterations in original) (quoting Darden v. Wainwright,

(1986)).

Unlike its rulings concerning Jurors 138 and 286, the

district court's conclusion that Juror 355's ability to apply the

law would be substantially impaired was grounded in precisely these

types of "demeanor and credibility [determinations] that are

peculiarly within a trial judge's province." Witt,

. The district court recognized that "the value of this process

is you can sit here five feet away and you can sense the being."

- 58 - And the district court's observation of Juror 355 led to a "sense

of him" that he was not "open to the possibility of the death

penalty" in Tsarnaev's case. Based on "his answers to the

questions and [the court's] sense of it," the district court

concluded that Juror 355's "zone of possibility" of applying the

death penalty was "so narrow" that the juror's performance of his

duties would be substantially impaired "in the world that we'll be

operating in."

Of course, the deference owed to the trial court's

determinations is not absolute, and we may reverse if "the record

discloses no basis for a finding of substantial impairment."

Uttecht,

. But here the record supports -- rather

than contradicts -- the district court's conclusion that

Juror 355's zone of possibility was too narrow for this case.

Juror 355 repeatedly declined to directly answer

questions getting at his ability to vote to impose the death

penalty if the facts and law called for it in Tsarnaev's case. As

the government points out, "[a]s a long-time criminal defense

attorney, Juror 355 clearly knew how to ask (and presumably answer)

hypothetical questions." Gov. Br. at 150. The district court

picked up on this, observing that Juror 355 "was a learned witness,

in a sense," and that "[h]e knew what we were talking about whereas

others don't necessarily."

- 59 - Juror 355's refusal to provide straight answers to

questions pertaining to Tsarnaev's case stands in stark contrast

to his response once the district court generalized the question

by asking about "a capital case" without tying the question to any

facts. Then, Juror 355 answered that "yes, [he] could vote to

impose the death penalty" if the case "fit into one of those rare

cases where [he] believed the death penalty should be imposed."

Asked to elaborate on what types of cases might be included in

"those rare cases," Juror 355 gave only the example of genocide.

Tsarnaev points to several instances in voir dire when

Juror 355 stated that he would be able to vote in favor of the

death penalty. But in each of those instances, Juror 355's

affirmance of his ability to do so was untethered from any factual

scenario (with the exception of genocide), suggesting merely that

he could conceive that there would be cases in which he could vote

to impose the death penalty -- not that he could do so in a case

anything like the one charged against Tsarnaev. Even when the

defense attempted to rehabilitate him, Juror 355 confirmed only

that he thought he could vote for the death penalty if he "decided

that the death penalty was an appropriate sentence for [a] given

set of facts," without any indication as to what sets of facts

might lead him to that conclusion. So the district court was left

without any assurance that Juror 355 would be able to vote in favor

- 60 - of the death penalty in any case without facts comparable to

genocide.

In addition, even had Juror 355's affirmations pertained

more to this case, the district court was on firm footing to

conclude that Juror 355's other answers and demeanor outweighed

his general assertions that he could follow the law. See Uttecht,

("Juror Z's assurances that he would consider

imposing the death penalty and would follow the law do not overcome

the reasonable inference from his other statements that in fact he

would be substantially impaired in this case . . . [and] did not

require the trial court to deny the State's motion to excuse

[him]."); Sampson,

(upholding exclusion of

prospective jurors even though the jurors "may have indicated some

degree of willingness to put aside personal biases" against the

death penalty).

A prospective juror's inability to vote to impose the

death penalty in the case at hand need not be demonstrated with

"unmistakable clarity." Witt,

. Given Juror 355's

repeatedly stated opposition to the death penalty except in

"exceedingly rare" cases, his inability to provide an example in

which he could vote to impose it other than genocide, and his

unwillingness to directly answer questions regarding his ability

to vote for it if he deemed it the proper sentence in the case at

hand, we see no error with the district court's conclusion that

- 61 - Tsarnaev's case fell outside of Juror 355's "zone of possibility."

Tsarnaev concedes that a trial court may discharge "venirepersons

who could vote to impose the death penalty only in circumstances

not present in the trials for which they were summonsed." Def.

Reply Br. at 68–69. And other circuits have upheld the exclusion

of prospective jurors in such cases. See United States v.

Rodriguez,

(8th Cir. 2009) ("[g]enocide" or

"somebody like Hitler or Stalin or a person in Bosnia"); United

States v. Fell,

(2d Cir. 2008) ("'unforgivable

type[s] of war crimes' like genocide or mass murder" (alteration

in original)); United States v. Fields,

(10th

Cir. 2008) ("genocide; torture; and willful killing of children");

Morales v. Mitchell,

(6th Cir. 2007) ("mass

murder or torture").

Tsarnaev contends that the district court's ruling was

based on the mistaken belief that Juror 355 could consider the

death penalty only in cases of genocide, when in fact Juror 355

offered genocide as a "starting point." This argument misconstrues

the district court's reasoning. The district court found that

Juror 355's "zone of possibility" was "so narrow" that it did not

encompass "the world that we'll be operating in." The court did

not find that Juror 355's "zone of possibility" included only

genocide -- just that it did not include Tsarnaev's case. And as

we have just explained, this conclusion was reasonable given the

- 62 - district court's observations during voir dire. The district

court's reference to "the genocide issue" simply reflects that

Juror 355's inability to provide any other examples evinced the

narrowness of his "zone of possibility."

Tsarnaev also contends that our deference to the

district court's findings is "inappropriate" in this case because

the district court applied "the erroneous legal premise that

Juror 355, having given one example of a death-appropriate case,

had to give others." Def. Br. at 176. But a court may properly

allow inquiry into the types of cases in which a prospective juror

could consider the death penalty as required by law. Uttecht,

.14 When Juror 355 was unable to come up with examples

other than genocide -- after refusing to directly answer whether

14 The cases that Tsarnaev says "approve courts' refusal to ask prospective jurors for examples of cases where they would (or would not) vote for death," Def. Br. at 177, are inapposite. See United States v. Caro,

(4th Cir. 2010) (defendant did not challenge on appeal the omission of the part of his proposed question asking for examples); Spivey v. Head,

, 1273 (11th Cir. 2000) (finding voir dire "constitutionally adequate" because, although trial court did not permit defense counsel to ask, "In what type of cases do you think the death penalty would be appropriate?," it permitted other questions with sufficiently broad scope); McQueen v. Scroggy,

, 1329– 30 (6th Cir. 1996), overruled on other grounds by In re Abdur'Rahman,

(6th Cir. 2004) (defense counsel's proposed question, "In what kinds of cases do you think the death penalty is warranted?," was irrelevant to whether a juror would consider penalties other than death in the case at hand). Moreover, the discretion to disallow such questions in certain circumstances is perfectly compatible with the discretion to allow similar questions in other circumstances.

- 63 - he could vote for the death penalty in Tsarnaev's case, if he found

it appropriate -- the district court rationally took this as a

sign that the scope of cases in which Juror 355 could consider the

death penalty was narrow. Although it is true that "a prospective

juror cannot be expected to say in advance of trial whether he

would in fact vote for the extreme penalty in the case before him,"

it is equally true that he must be able and willing "to consider"

the death penalty in the capital case for which he is summoned.

Witherspoon,

n.21. The district court reasonably

concluded that Juror 355's ability to do so was substantially

impaired in this case.

Finally, Tsarnaev argues that the district court

"handled this issue in an 'internally inconsistent' manner" by

"qualif[ying] pro-death penalty jurors, over the defense's Witt

objections, without requiring those jurors to provide examples of

the circumstances in which they would deem a sentence of life

imprisonment appropriate." Def. Br. at 178. Tsarnaev points to

Juror 260, who described himself as a "7" on the 1-to-10 scale and

who stated during voir dire that "there are crimes and times for

which a death penalty is the appropriate punishment." The parties

agree that Juror 260, when asked during voir dire, was unable to

come up with examples in which the death penalty would not be

- 64 - appropriate.15 The defense moved to strike Juror 260 -- albeit not

on these precise grounds -- and the district court denied the

motion. Tsarnaev argues that "[i]t was illogical and inequitable

to grant the government's cause challenge to Juror 355 because he

suggested one non-exclusive example, while denying the defense's

cause challenge to Juror 260, who could muster none at all." Def.

Br. at 179.

Tsarnaev's argument overlooks important differences

between Juror 355 and Juror 260. Juror 355 stated his view that

the death penalty is "generally wrong" and should be imposed only

in "an exceedingly rare case" or "the most rarest of situations."

Juror 355's inability to provide examples other than genocide

suggested that the "rarest of situations" in which he could

consider the death penalty did not encompass cases like Tsarnaev's.

By contrast, Juror 260's statement that "there are crimes and times

for which a death penalty is the appropriate punishment" does not

suggest that Juror 260 would vote to impose the death penalty in

all but the "rarest of situations," or that Juror 260 would be

15 We read the record differently than the parties. Although the district court initially asked, "[W]hat are the circumstances where it would not be appropriate?," the government interjected before the prospective juror could answer. The court then "c[a]me at it a little different way" and asked Juror 260 to "give some idea" of what he thought were the "appropriate circumstances" for the death penalty. It was in response to this question that the prospective juror said he would prefer not to answer in the abstract. But because it does not change our holding, we accept the parties' interpretation.

- 65 - unable to apply the court's instructions to the facts of Tsarnaev's

case. Juror 260's inability to come up with examples was therefore

far less noteworthy than Juror 355's. As the district court noted,

"[e]verybody is different," and it was reasonable for the district

court to assign different weight to the lack of examples from

various prospective jurors based on their other answers and

demeanors.

IV.

Tsarnaev's final remaining claim is that the district

court erred in admitting into evidence a video of Tsarnaev

purchasing milk at a Whole Foods grocery store shortly after the

bombings. At trial, the government used the video to demonstrate

Tsarnaev's lack of remorse. Tsarnaev contends that the government

obtained the video as a result of an involuntary statement he made

under interrogation from FBI agents while hospitalized and before

being given warnings required by Miranda v. Arizona,

(1966).

The statement at issue was made during extensive

questioning by two FBI agents at the hospital following Tsarnaev's

arrest and surgery for gunshot wounds to his face and extremities.

The agents did not Miranda-ize him, nor did they allow lawyers

from the federal public defender's office to see him. At some

point during the overnight questioning between April 21 and 22,

2013, Tsarnaev told the agents that "[o]n the way back to

- 66 - Cambridge" after the bombings, he and his brother "stopped at a

Whole Foods . . . to buy some milk" because "[t]hey were observing

the Muslim tradition of fasting on Mondays and Thursdays and needed

milk to break the fast."16

During the guilt phase of the trial, the government

introduced evidence related to Tsarnaev's trip to Whole Foods. It

called as a witness the manager of the Whole Foods store, who

testified that two FBI agents came into the store and that, upon

their request, she showed them the store's surveillance footage

from the day of the bombings. When the government offered a video

of the surveillance footage into evidence, defense counsel stated

that the defense had "[n]o objection" to the video's admission.

The video then played for the jury. It showed Tsarnaev enter the

Whole Foods at 3:12 p.m., walk to the dairy aisle, examine two

different containers of milk, select one, pay in cash, leave the

store, and get into the passenger seat of a vehicle in the parking

lot. About a minute later, Tsarnaev re-entered the Whole Foods,

exchanged the container of milk for a different one, and left.

After the video played, the government introduced -- through the

same witness -- a computer-generated receipt from the Whole Foods

confirming that Tsarnaev had paid $3.49 in cash for a half-gallon

of milk at 3:14 p.m. The receipt indicated that it was "[r]eported

This language 16 comes from an FBI report of the interrogation.

- 67 - at" -- i.e., retrieved on -- April 23, 2013, at 5:20 p.m., the day

after the agents had finished questioning Tsarnaev at the hospital.

Defense counsel stated that the defense also had "[n]o objection"

to the receipt's admission into evidence.

It was not until three trial days after the video had

come into evidence and played for the jury that the defense changed

its position. In the meantime (two trial days after the video

played), the government had called an FBI agent to testify about

Tsarnaev's movements during the aftermath of the bombings, based

on cell phone location information. While so testifying, the agent

stated, "[A]t the time the investigation was occurring, we had

received information, I believe, from a witness that the people

involved stopped at a Whole Foods." As a result of that tip, the

agent "told the investigative team that they probably want to go

to the Whole Foods and look at the video."

At a conference with the trial judge the following day,

defense counsel said that "it hadn't occurred to [her]" until the

FBI agent was asked, "'Did you receive information that the

defendant Tsarnaev had gone to Whole Foods' and he said 'yes,'

that was something that was Mr. Tsarnaev's hospital statement,

that he'd gone to Whole Foods." She said that she "hadn't really

thought about . . . how the FBI got to the Whole Foods video in

the first place until he said, 'I got information.'" But, now

that she had thought about it, "the chronology lines up" in a way

- 68 - that suggests Tsarnaev's hospital statement was the source of the

government's information about Whole Foods. Defense counsel

requested that, "to the extent the government is offering evidence

that was derived from information provided by Mr. Tsarnaev, the

issue of voluntariness may be joined and should be, we think,

addressed before that evidence is . . . admitted."

The government represented to the court that the witness

that the FBI agent had referred to "was somebody else

entirely" -- "a civilian witness who was not involved in the

investigation" -- and that the agent's suggestion to check out the

Whole Foods "was based on . . . what information that person had."

The government also took issue with the timing of the defense's

objection, noting the potential for "opportunistic attack[s]" that

the defense could "rais[e] post fact, either now or on appeal, by

mining the defendant's hospital statement and trying to find

anything that overlaps with evidence that the government has

presented."

The defense requested that "the government . . . provide

some documentation" to support its contention that the Whole Foods

tip came from an independent source. The district court denied

this request, stating, "I don't think that's necessary under the

present circumstances."

A motion to suppress evidence must be made before trial

"if the basis for the motion is then reasonably available and the

- 69 - motion can be determined without a trial on the merits." Fed. R.

Crim. P. 12(b)(3)(C). Far from a meaningless formality, this rule

serves important purposes. A pretrial motion gives the parties

time to carefully brief complex issues, the judge the chance to

thoughtfully assess the parties' arguments, and the government the

ability to appeal an adverse ruling without encountering a double-

jeopardy problem. See United States v. Castro-Vazquez,

(1st Cir. 2015) ("'[W]ere a defendant able to delay such a

motion until trial, he could prevent the government from appealing'

because jeopardy would have attached at trial." (quoting United

States v. Barletta,

(1st Cir. 1981))).

Ordinarily, therefore, "the failure to move to suppress

particular evidence before trial result[s] in 'waiver' of any

objection." United States v. Walker-Couvertier,

(1st Cir. 2017); see

at 9 n.1 (noting that the December 2014

amendments to Rule 12 "did not substantively change the rule,"

which previously used the term "waiver"). And a party who waives

a claim before the district court "is not entitled to any appellate

review."

; see United States v. Reyes,

, 16 n.8

(1st Cir. 2022) ("[I]n the First Circuit, unpreserved arguments

under Fed. R. Crim. P. 12(b)(3) and (c)(3) 'cannot be raised on

appeal absent a showing of good cause,' and parties are 'not

entitled to plain error review.'" (citations omitted) (quoting

United States v. Lindsey,

, 41–42 (1st Cir. 2021))). A

- 70 - defendant may nevertheless avoid this rule upon a showing of "good

cause" for the untimeliness. Fed. R. Crim. P. 12(c)(3). "This

good cause standard gives Rule 12(c) some bite, underscoring the

district court's authority to set and enforce motion-filing

deadlines." United States v. Santana-Dones,

(1st

Cir. 2019). An exception for good cause is "rarely granted."

United States v. Santos Batista,

(1st Cir. 2001).

Of course, a party can be expected to object to evidence

pretrial only if that party has reason to know that the evidence

may be tendered at trial. Toward that end, the rules require the

government to disclose pretrial, upon a defendant's request, items

within the government's control that it "intends to use . . . in

its case-in-chief at trial." Fed. R. Crim. P. 16(a)(1)(E). The

government was also required to provide to Tsarnaev, before trial,

lists of witnesses and exhibits that it intended to use in its

case-in-chief, as well as copies of those exhibits. See D. Mass.

Loc. R. 117.1(a)(8). Tsarnaev does not contend that the government

failed to comply with these requirements.

Rather, Tsarnaev points out that the government also

promised pretrial that it did "not intend to use Tsarnaev's

[hospital] statements in its case-in-chief at trial or at

sentencing." He argues that it was reasonable for his counsel to

rely on that explicit commitment as meaning that the government

- 71 - was not going to use evidence that it knew was the fruit of those

statements. We agree.

The question then becomes: What changed so as to make

the government's implicit commitment not to use the fruits of

Tsarnaev's statement no longer reliable? The defense did not

object to the Whole Foods evidence either before trial or during

trial when it was introduced. To the extent the reason for the

belated distrust was that defense counsel for the first time

"thought about" the timing of the FBI's investigation of Whole

Foods in relation to Tsarnaev's statement, any such argument was

waived because that information was previously available to the

defense. Fed. R. Crim. P. 12(b)(3); see Walker-Couvertier,

; Reyes,

n.8.

The only other justification for the untimeliness

offered by Tsarnaev is the FBI agent's testimony that the Whole

Foods investigation was prompted by a tip from "a witness." "That

testimony," says Tsarnaev, "for the first time[] raised the

possibility that the witness was Tsarnaev himself." Def. Reply

Br. at 141. But the information that the tip came from "a witness"

could hardly have been a surprise. While there are certainly other

means by which the FBI could have uncovered Tsarnaev's stop at

Whole Foods, a tip from a witness was always a possibility,

especially given that the FBI had reason to begin questioning the

friends and family members of Tsarnaev and his brother before going

- 72 - to Whole Foods. And, as described above, the only reason to think

that the witness was Tsarnaev himself -- his hospital statement

and the soon-thereafter FBI investigation of Whole Foods -- was

available to the defense before trial.

On this record, we think that the district court hardly

abused its discretion in doing what defense counsel had done at

the beginning of the trial, i.e., concluding that there was no

reason to question the government's (by then express)

representation that its evidence originated with a source other

than Tsarnaev himself. To hold otherwise would be to mandate mid-

trial detours based on unjustified claims that reliance on pretrial

agreements was no longer warranted.

To summarize: The defense reasonably relied on

representations of the government to conclude that the video and

the receipt, together with associated testimony, were admissible.

Thereafter, no new information arose to suggest that the

government's representation was not accurate. So, the district

court was well within its discretion to reject a request for a

mid-trial foray to explore a belated accusation for which the

record provided no support.

V.

We briefly sum up where Tsarnaev's case stands after the

road just traveled. This opinion disposes of three of Tsarnaev's

four remaining claims of error. We vacate only the district

- 73 - court's ruling denying Tsarnaev's motion to strike for cause

Jurors 138 and 286, and we remand this case to the district court

only to conduct an appropriate investigation of the potential bias

suggested by the apparent discrepancies between the answers of

Jurors 138 and 286 to the court's inquiries in jury selection and

the information contained in their social media communications.

If the investigations establish that either juror suffered from a

disqualifying bias, or that faded memories render the court unable

to determine whether or not a juror suffered from such a bias, the

court should at that point vacate Tsarnaev's death sentence and

only then conduct a new penalty-phase proceeding. Otherwise, it

should reenter its denial of the motion to strike. In either case,

his convictions and his life sentences will remain.

We retain jurisdiction to conclude the appeal after the

district court on remand has ruled on the motion to strike. See

Fed. R. App. P. 12.1 advisory committee's notes; Zimny,

. The parties shall notify the Clerk of this court when

the district court has decided the motion on remand in accordance

with Fed. R. App. P. 12.1(b).

OPINION, DISSENTING IN PART, FOLLOWS

- 74 - HOWARD, Circuit Judge, dissenting in part. While I agree

with the majority's treatment of each of the other issues in this

appeal, I do not agree with the decision to remand for additional

investigation of the juror-bias claims. Because I cannot deduce

that the district court abused its considerable discretion in

conducting jury selection and in addressing claims of juror

misconduct, I respectfully dissent.

I.

To obtain a new penalty phase of the trial, Tsarnaev

"must first demonstrate that a juror failed to answer honestly a

material question on voir dire, and then further show that a

correct response would have provided a valid basis for a challenge

for cause." McDonough Power Equip., Inc. v. Greenwood,

(1984). To satisfy this test, Tsarnaev must show that an

honest response would have demonstrated that the juror was biased.

See Sampson v. United States,

(1st Cir. 2013)

("[O]nly '[d]emonstrated bias in the responses to questions on

voir dire may result in a juror's being excused for cause.'")

(second alteration in original) (quoting McDonough,

)). A biased juror is one who lacks the capacity or the will

to decide the case based solely on the evidence. Id. at 165-66.

"[T]he Constitution lays down no particular tests [for assessing

bias] and [the] procedure is not chained to any ancient and

artificial formula." United States v. Wood,

, 146

- 75 - (1936). And our review of a district court's bias determination

is only for abuse of discretion.

It is useful to keep in mind just how deferential our

abuse of discretion review is when conducted in the context of a

claim of juror bias or other misconduct. As we recently

reiterated, "[b]ecause the district court has the benefit of

observing and interacting with potential jurors, we cede

substantial deference to that court in assessing potential juror

bias." United States v. Encarnacion,

(1st Cir.

2022). In fact, as we have long acknowledged, "[t]here are few

aspects of a jury trial where we would be less inclined to disturb

a trial judge's exercise of discretion, absent clear abuse, than

in ruling on challenges for cause in the empanelling of a jury."

(quoting United States v. McCarthy,

(1st

Cir. 1992)). And our deference in this area is so broad because

the district court's proximity to the jurors and its participation

in voir dire are critical to an assessment of a juror's credibility

and bias. See Wainwright v. Witt,

(1984) ("[T]he

question whether a venire[person] is biased has traditionally been

determined through voir dire culminating in a finding by the trial

judge concerning the venire[person]'s statement of mind. . . .

[S]uch a finding is based upon determinations of demeanor and

credibility that are peculiarly within a trial judge's

province.").

- 76 - Moreover, our deference is not limited to only the

district court's ultimate conclusion as to misconduct or bias; it

extends to the scope, nature, and form of the inquiry that the

district court conducts into misconduct claims. See United States

v. Boylan,

(1st Cir. 1990) (explaining that

"[w]hen a colorable claim of jury misconduct surfaces, the district

court has broad discretion to determine the type of investigation

which must be mounted" and rejecting the "imposition of a rigid

set of rules for the conduct of inquiries" by the district court);

Sampson,

("Any inquiry into potential bias in the

event of juror dishonesty must be both context specific and fact

specific."). Thus, while I have no quarrel with the majority's

position that "defendants seeking to establish juror misconduct

bear an initial burden only of coming forward with a 'colorable or

plausible' claim," and that "[o]nce defendants have met this

burden, an 'unflagging duty' falls to the district court to

investigate the claim," United States v. French,

(1st Cir. 2018) (quoting United States v. Zimny,

(1st Cir. 2017)), it is for the district court -- not us -- to

fashion that investigation.

With this framing in mind, I cannot agree with the

majority that remand is required here. Although the majority

correctly identifies that our review is for abuse of discretion,

- 77 - in my view, it does not accord the district court the discretion

that is due.

II.

A.

To begin, I worry that, as a practical matter, the

majority's holding establishes an inflexible procedural

requirement in cases involving voir dire of prospective jurors

from large jury pools. The holding seemingly calls for a district

court to conduct further questioning of a juror whenever a

plausible claim of juror misconduct surfaces prior to the

empanelment of the jury. This requirement takes away from the

district court any discretion in determining how to investigate

and address such claims. Indeed, just last year in this very same

case, we were admonished by the Supreme Court to refrain from

imposing supervisory legal rules that usurp or undermine a district

court's authority to manage voir dire. See United States v.

Tsarnaev,

(2022)("[L]ower courts cannot create

prophylactic supervisory rules that circumvent or supplement legal

standards set out in decisions of this Court."). Yet, that is

precisely what the majority seeks to do here. By requiring the

district court to adhere to a specific procedural course of conduct

in the face of an allegation of juror misconduct, and by treating

the district court's considered decision not to do so as an

automatic abuse of discretion, the majority robs the district court

- 78 - of any true power to address such claims and otherwise manage voir

dire. Indeed, by explicitly requiring the district court to

conduct a specific type of inquiry, with specific questions crafted

by the appellate court, the majority "supplant[s] the district

court's broad discretion to manage voir dire by prescribing [a]

specific line[] of questioning, and thereby circumvent[s]" our

abuse of discretion review.

.

As the Supreme Court noted the last time our court took

such a tack, "[w]hatever the 'supervisory power' entails, it does

not countenance [our court's] use of it" to "hand[] down a

purported legal rule . . . and then conclude[] that the [district

court] commit[s] legal error when it fail[s] to comply with that

rule." Id. at 1036. The majority's holding not only oversteps

our bounds as an appellate court, it eliminates the authority of

the district court, the court incontrovertibly best suited to be

making the critical decisions regarding juror fitness and

impartiality.

B.

Reviewing the district court's conduct with what I

believe to be the appropriate deference, I conclude that there was

ample basis for the district court to arrive at a judgment that

the two jurors in question were not improperly biased, and thus

the court engaged in no abuse of its exclusive power when it

- 79 - declined to subject those jurors to the further questioning that

the majority demands.

The district court's assessment of the jurors' fitness

was based on its review of their answers to the 100 questions that

were posed on the juror form, as well as, and more importantly,

its in-person observation and face-to-face individualized

examination of each of the jurors. This individualized and

personal examination of jurors is a critical means for a district

court to evaluate bias and develop an impression of a juror's

ability to apply the law to the facts impartially. See Tsarnaev,

("We have repeatedly said that jury selection

'falls particularly within the province of the trial judge.' That

is so because a trial 'judge's appraisal is ordinarily influenced

by a host of factors impossible to capture fully in the record,'

such as a 'prospective juror's inflection, sincerity, demeanor,

candor, body language, and apprehension of duty.'" (quoting

Skilling v. United States,

(2010)) (internal

citations omitted)).

Here, given the relative weakness of Tsarnaev's

misconduct claims against either juror, the district court's

decision to rely on its own impressions of the two jurors, without

the need for further questioning, cannot be deemed an abuse of the

district court's discretion.

- 80 - i. Juror 138

Tsarnaev argues that Juror 138 made two knowingly

dishonest statements during voir dire. First, Tsarnaev contends

that Juror 138 was dishonest with the court about his own use of

Facebook. Second, he asserts that Juror 138 was dishonest with

the court about Facebook use by others. I am unconvinced that the

district court was required to find that Tsarnaev has established

knowing dishonesty plausibly revealing bias as to either charge.

During oral voir dire, the court asked Juror 138 whether he

had been able to comply with the court's instruction "to avoid any

discussion of the subject matter of the case . . . and also to

avoid any exposure to media articles about the case" (while

reiterating its prior instruction that, "obviously," jurors could

"talk about coming" to court). Juror 138 responded that he had

not "talked to anybody about it." Tsarnaev argues that this

response was knowingly dishonest and was intended to conceal

conduct that would have resulted in Juror 138 being struck from

the venire. In the Facebook comments at issue, Juror 138 explained

how many potential jurors had been summoned to the courthouse, how

the voir dire process would work, how long the trial was expected

to last, that either the jury-selection process or trial (it is

unclear to which he was referring) "[s]hud be crazy," and that he

was in close proximity to Tsarnaev and his attorneys but he "can't

say much else about it tho...that's against the rules." These

- 81 - comments easily fall within a reasonable layperson's understanding

of the scope of the court's instruction that jurors could "talk

about coming" to court but could not discuss the subject matter of

the trial. The district court could conclude that there was no

dishonesty -- let alone dishonesty demonstrating bias -- in Juror

138's response during voir dire.

Next, Tsarnaev argues that Juror 138 lied when he

reported that none of his Facebook friends were "commenting about

this trial." Tsarnaev argues that this denial was intentionally

dishonest, given that multiple people had commented on the Facebook

post that Juror 138 made at the time that he filled out his juror

questionnaire. These included comments such as: "If you're really

on jury duty, this guys got no shot in hell"; "They're gonna take

one look at you and tell you to beat it"; and "Play the part so u

can get on the jury then send him to jail where he will be taken

care of." While Juror 138's response was untrue and likely

dishonest, thus triggering the district court's duty to probe for

potential bias, the court effectively investigated whether Juror

138 would have been subject to a for-cause challenge had he

responded truthfully.

Tsarnaev does not explain how the comments made by others

would have been grounds for a challenge for cause to Juror 138,

where Juror 138 neither endorsed nor responded to those comments.

Indeed, the district court considered whether the posts

- 82 - demonstrated bias and gave, appropriately, little weight to the

argument that the conduct of others could or did demonstrate bias

on the part of Juror 138 himself. Furthermore, Juror 138

explicitly stated in his own post that he was subject to court

rules which prevented him from discussing the case beyond that he

had appeared. And, after the remarks in question were made by

Juror 138's Facebook friends (seemingly in direct response to a

suggestion by one of his friends that he "play the part so u get

on the jury and send him to jail where he will be taken care of"),

Juror 138 remarked that he would not take his chances with breaking

any of the court's rules.

Finally, any argument that Juror 138's dishonesty was

motivated by a desire to secure a place on the jury is undermined

by his disclosure that he had told family members about his

potential jury service, and that those family members were jealous

of his potential service on the jury at Tsarnaev's trial. The

trial judge was entitled to conclude that the fact that Juror 138

disclosed communications weighed against Tsarnaev's claim that

Juror 138 deliberately withheld information due to a bias against

Tsarnaev and a desire to exercise that bias as a juror. Of course,

I agree with the majority that it is "at least plausible" that

Juror 138 did not think that disclosing these comments involving

his family members would hurt his chances of being selected. But

given that the district court individually questioned and assessed

- 83 - the credibility of Juror 138 during voir dire, I believe that we

must defer to its conclusion.

ii. Juror 286

Tsarnaev argues that Juror 286 made two intentionally

dishonest statements in order to secure a place on the jury. This

argument, too, is unconvincing.

First, Tsarnaev contends that Juror 286 lied on her

questionnaire about whether she or persons close to her sheltered-

in-place during the search for Tsarnaev. While it is undisputed

that her negative answer was incorrect, Tsarnaev's claim is

critically undermined by the fact that, during her individual voir

dire examination, Juror 286 acknowledged that both she and her

family had been subject to the lockdown on the day of the search.

During her voir dire examination, Juror 286 offered this

information and thus corrected her inaccurate questionnaire

response (albeit without acknowledging that she had previously

reported otherwise). When asked about the shelter-in-place order,

Juror 286 explained that she was working outside of the locked-

down area, which included her home, and that she "was kind of like

joking with my boss [that] I wanted to go home. Boston was -- I

live in Boston, and Boston was on lockdown. I'm, like, I have to

go home. We're on lockdown." Furthermore, as the government

notes, this answer was given in response to a question that asked

simply whether Juror 286's co-workers discussed the bombing when

- 84 - it happened and that did not directly concern the shelter-in-

place. That Juror 286 willingly volunteered this information even

when it was not called for by the question that was posed belies

Tsarnaev's claim that Juror 286 sought to conceal the fact that

she was "personally affected" by the bombings so as to secure a

place on the jury.

Second, Tsarnaev contends that Juror 286's responses

about her social media habits, and her claim that she had not

discussed Tsarnaev's case online, were false. This contention is

also unavailing. The online activity in question was, by and

large, quite innocuous and consisted primarily of Juror 286

tweeting or re-tweeting messages of support and sympathy for the

victims and first responders directly affected by the events of

April 15, 2018 and its aftermath. And, the most-damning evidence

that Tsarnaev highlights -- a post which referred to him as a

"piece of garbage" -- was written by someone other than Juror 286

and merely re-tweeted by her.

Tsarnaev's argument that Juror 286 knowingly and

deliberately concealed this activity to secure a place on the jury

is further undermined by: (1) the fact that the tweets were

publicly available, cf. United States v. Maxwell,

,

at *9 (S.D.N.Y. Apr. 1, 2022) (finding it to be the most logical

explanation that a juror's mistaken responses were inadvertent,

and not deliberate, because to find otherwise "requires concluding

- 85 - that he willingly disclosed his deliberate and unlawful deception

in public" and opened himself up to potential legal consequences);

(2) the fact that Juror 286 willingly disclosed various other

pieces of information which may have weighed against her inclusion

on the jury (including the fact that she went to the Boston Strong

Concert at the Boston Garden, purchased a Boston Strong t-shirt,

that people in her life were offering her advice on how to get out

of jury duty, and that she had seen a moderate amount of coverage

about this case in advance of being summoned to the court); and

(3) the fact that Juror 286's allegedly dishonest response to the

question regarding her social media habits was conditional ("I

don't believe I have") whereas her responses to nearly every other

question in the questionnaire were definitive. Her decision not

to give a definitive answer likely shows that, as the government

argues, Juror 286 was unsure of whether her tweets and re-tweets

from years prior fell within the scope of the question. An honest

juror need not divulge more information than is specifically

requested by the questions that she is asked, and it is incumbent

on the defense, if it wishes to elicit information beyond the scope

of the question posed, to ask follow-up questions. See, e.g.,

Billings v. Polk,

(4th Cir. 2006); see also

Porter v. Zook,

(4th Cir. 2015) ("[A] juror's

failure to elaborate on a response that is factually correct but

less than comprehensive may not meet th[e] standard [of dishonesty]

- 86 - where no follow-up question is asked."); Fitzgerald v. Greene,

(4th Cir. 1998) (rejecting a McDonough claim where

a juror, whose granddaughter had been molested, disclosed during

voir dire that no member of her family had been "raped" because

the trial court limited its questioning to rape and did not ask a

follow-up question about molestation).

C.

Given the relative weakness of the claims against either

juror, it was well within the district court's broad authority to

determine that it did not need to subject the jurors to further

questioning. It had already considered the evidence provided by

Tsarnaev, reviewed the juror's questionnaires and voir dire

transcripts, and -- most importantly -- individually examined each

juror during voir dire.

Rather than accord the district court the substantial

deference that should follow from this first-hand experience, the

majority discounts the district court's assessment of the two

jurors in question, reasoning that the court did not explicitly

state that it relied on its individual voir dire sessions and that

we cannot infer that the court recalled its reliance on those

interviews due to the volume of voir dire. This rationale,

however, overlooks the purpose of a McDonough investigation. At

the time Tsarnaev raised his claims of juror bias, the district

court had already found, based on each juror's answers and demeanor

- 87 - at voir dire, that the jurors were "capable and willing to decide

the case solely on the evidence," Sampson, 724 F.2d at 165 (quoting

McDonough,

). Investigating the juror-bias claims,

then, requires the district court to determine whether the jurors'

misstatements are so suggestive of bias as to overcome this

finding. Thus, even if the judge somehow could not recall the

juror's individual voir dire sessions, as the majority suggests,

our court must accord some weight to the court's initial

determination of the juror's credibility as to impartiality. See

United States v. Meader,

(1st Cir. 1997)

(“Assessment of [a] juror's credibility as [the juror] responds to

the [court's] questioning is uniquely the domain of the district

court . . . .”).

Finally, our decision in United States v. French,

(1st Cir. 2018) ("French I") does not, contrary to the

majority's argument, require that the district court conduct

additional proceedings. In that case, which seemingly serves as

the basis for the supervisory rule that the majority creates, we

explained that "we do not see how a court can say whether the juror

in this instance was unduly biased without knowing why [he]

answered as [he] did" and required that an evidentiary hearing

must be held to elicit that knowledge. French I,

.

But, jury selection in French I involved no individualized voir

dire and thus the district court had not previously had an

- 88 - opportunity to meet with the prospective jurors, pose questions,

and assess their levels of credibility and bias in advance of

ruling on the misconduct claim.

.

Here, by contrast, both the trial court and the parties

were permitted to question the prospective jurors at length on a

wide range of topics including their answers to the juror

questionnaire. Thus, when the district court ruled on Tsarnaev's

claims of misconduct, it was in a much better position to consider

the potential for bias than the district court was in French I.

Under these circumstances, we should not reach to find that it was

an abuse of the trial court's discretion to determine that no

further questioning was needed to resolve the claims of misconduct.

See United States v. French,

(1st Cir. 2020)

("French II") ("This is not a situation where the court simply let

the juror decide for herself whether she was biased without

investigating further.").

And, despite the majority today seemingly holding that

a district court must always determine the reasons for dishonesty

before ruling on bias, when French I returned to us after the

evidentiary hearing ordered in that case, we held that the district

court had adequately eliminated any concern about bias despite its

inability to discern the reason for the juror's dishonesty.

. We explained that, there, the district court was

nonetheless "able to exclude the most obvious indicators of bias

- 89 - from the evidence that was in the record" and to rule out any

possible "explanation that would reveal disqualifying bias" and

thus did not abuse its discretion in denying the motions to strike

the subject juror in that case.

.

So too here. Armed with ample evidence and its personal

experience of having met with the two jurors, the district court

supportably determined that, whatever the reasons for their

alleged dishonesty, the jurors were not biased. See Def. Br. add.

at 322 ("There are various possible explanations [for the alleged

misconduct] and none of them is, in my view, serious enough to

warrant changing our provisional qualification, and in particular,

none of the issues that were raised seem to me to suggest the

presence of a bias that would be harmful to jury impartiality in

this case."). Accordingly, the court acted within its discretion,

and our circuit's precedent, when it determined that Tsarnaev

failed to meet his burden of proving juror bias by a preponderance

of the evidence. See French I,

("Though a defendant

need only present a colorable claim to trigger an investigation,

he or she nonetheless retains the burden to prove juror bias by a

preponderance of the evidence based on that investigation."

(internal quotation marks omitted)).

III.

Because a proper application of the relevant standard of

review reveals no abuse in the district court's handling of

- 90 - Tsarnaev's misconduct claims, I must respectfully dissent from

Section II of the majority's decision. I would instead affirm the

sentence imposed by the district court.

- 91 -