Robel Phillipos: Guilty Verdict on Five of Nine Alleged Statements

Robel Phillipos has been found guilty of making five of the nine false statements alleged in the Indictment. The jury found he lied about both false statements charged in Count 1 and three of the nine statements charged in Count 2. He will remain on bond and house arrest through sentencing.

Shorter version: He did not lie about what he saw or heard in the dorm room. He lied about not being in the dorm room at all, and learning afterwards that his friends had taken the backpack from the dorm room. He did not lie when he denied discussing get rid of the backpack with his friends. The jury rejected the FBI's "written confession" by Robel. [More...]

Here's a breakdown of which statements the jury found were false, and which it found not to be false. For a full description of the charges, jury instructions, verdict form and penalty, see my post from October 24, 4th Day of Jury Deliberations in Robel Phillipos Trial


Count 1: April 20, 2013:

(1) he did not remember going to Dzhokhar Tsarnaev's dormitory room on the evening of April 18, 2013; and

(2) he returned to the door of Dzhokhar Tsarnaev' s dorm room on the evening of April 18, 2013 at approximately 10:00 p.m. with Kadyrbayev and Tazhayakov (PHILLIPOS admitted that he had gone to Dzhokhar Tsarnaev's dormitory room earlier in the afternoon), but no one entered the dormitory room.

Count 2: April 25, 2013:

1) he only entered Dzhokhar Tsarnaev's dormitory room on one occasion on April 18, 2013, which was sometime in the afternoon when he spoke to Dzhokhar Tsarnaev for approximately ten minutes;

5) neither he, Kadyrbayev, or Tazhayakov took a backpack from Dzhokhar Tsarnaev's dormitory room on the evening of April 18, 2013;

(6) he was not aware of Kadyrbayev or Tazhayakov removing anything from Dzhokhar Tsarnaev's dormitory room on the evening of April 18, 2013; and

Not Guilty:

Count 2:

(2) he did not observe anyone take a backpack out of Dzhokhar Tsarnaev' s dormitory room on April 18, 2013;

(3) he did not see a backpack inside Dzhokhar Tsarnaev's dormitory room on the evening of April 18, 2013;

(4) he did not see any fireworks inside Dzhokhar Tsarnaev's dormitory room on the evening of April 18, 2013;

(7) he did not engage in any conversation with Kadyrbayev and Tazhayakov regarding plans to discard in the trash a backpack, which had been taken from Dzhokhar Tsarnaev's room on the evening of April 18, 2013.

My take: The jury found he did not lie when he told police on April 25 that he did not personally observe the backpack or the fireworks in Dzhokhar Tsarnaev's dorm room, or see anyone remove the backpack from the dorm room. But it found that days later, when questioned about what happened on the night of the 18th, his statements at that time that neither he, Dias or Azamat removed the backpack and that he wasn't aware the backpack had been removed from the dorm room were false.

The statements the jury found not to be false are the statements in the Robel's "written confession" -- which was typed by the FBI and signed by Robel. You can read it here.

That's a big deal. The written confession states that contrary to his earlier denials, Robel did see Dias going through the backpack in the dorm room, saw the fireworks in it, saw Dias carrying the backpack when leaving the dorm room, discussed getting rid of the back pack with Dias and Azamat, and told Dias, "Do what you have to do."

But the jury found Robel's statements that he did not see the backpack in the dorm room, did not see fireworks in the dorm room and did not discuss getting rid of the backpack with Azamat or Dias were not false statements. This means it discredited the written confession.

It seems to me the jury accepted his "too stoned to remember" defense with respect to what transpired inside the dorm room on April 18. It just didn't buy that he was so stoned he didn't being inside the dorm room at all that night. (On the 20th, he first told police he didn't go to dorm room that night, and then told them they went to the dorm room but that no one was there so they didn't go in.) No matter how stoned he was he would have remembered being inside the dorm room.

By finding him not guilty of making false statements as to what he observed inside the dorm room, the jury either accepted he was too stoned to remember what he saw inside the room, or found that never saw those things at all.

It was the next morning, after waking up at Azamat and Dias' apartment, that Robel learned they had taken the backpack. The jury found he would not still be so stoned by the next morning that he wouldn't later recall this. So on the 25th, when he still denied knowing that Dias or Azamat had removed the backpack from the dorm room, those statements were lies.

The U.S. Attorney says the jury got the verdict "exactly right." If so, then the jury was right, in her opinion, in rejecting the written confession, and a large part of their case: that Robel saw the backpack being taken from the dorm room and the fireworks inside it, and discussed getting rid of the backpack with Dias and Azamat.

Bottom line: The only things Robel lied about, according to the jury, was being in the dorm room at all and learning before the 25th that either Dias or Azamat had removed the backpack from the dorm room. He did not participate in discussions about getting rid of the back pack. Clearly, that doesn't warrant even close to an 8 or 16 year sentence. I hope he gets probation. The felony conviction, which will stay on his record forever, is more than enough punishment.

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    As you know, (5.00 / 1) (#1)
    by Reconstructionist on Tue Oct 28, 2014 at 03:46:24 PM EST
      the jury was not asked to and did not  not make findings that the defendant  did not make false statements, or possess the   requisite state of mind if the statements were made.  We don't do things that way in this system.

    Juries  only make findings of guilty or not guilty based upon whether the prosecution met its burden of proving the  essential elements upon beyond a reasonable doubt.

    while a finding of guilt necessarily shows the jury must have believed acts were committed with the requisite criminal intent, a finding of not guilty does not necessarily mean the opposite.


    My head hurts (5.00 / 1) (#2)
    by Peter G on Tue Oct 28, 2014 at 04:42:14 PM EST
    The prosecutor said that the jury "got it exactly right" by rejecting four of her nine contentions?  Why did she advance the other four then?  What part of "exactly" am I misunderstanding?

    the part (5.00 / 2) (#3)
    by Reconstructionist on Tue Oct 28, 2014 at 04:44:13 PM EST
      that is an equally transparent attempt at spin as this post.

    this "justice" does not make (5.00 / 2) (#4)
    by ZtoA on Wed Oct 29, 2014 at 01:30:23 AM EST
    any common sense at all !  I heard on NPR that he faces 19 years in jail. That is outrageous! Jail time for this kid??

    I believe the statutory max (4.00 / 1) (#5)
    by Reconstructionist on Wed Oct 29, 2014 at 11:14:46 AM EST
      is 16 years. Each count carries a max of 8 years and the sentences could be imposed to run consecutively.

      We don't (or at least I don't) have enough info to estimate his guideline range with reasonable reliability. Of course, the guidelines are not mandatory, and the judge might vary downward from the range after calculating it.

      Preliminarily, I think § 2J1.2 (obstruction of justice offenses) will apply.

      The base offense level is 14.

      It appears likely the specific offense characteristic found at § 2J1.2 (b)(1)(C) will apply which adds 12 levels

      It's hard to say based on my limited information whether the SOC at (b)(2) for "substantial interference with the administration of justice will be found applicable, but if the finding is made by the court that would add 3 more levels.

       My impressionistic thought, is that none of the other SOCs would apply.

      If his total offense level were calculated at 29 and he is in criminal history category I, the advisory guideline range would be 87-108 months; 26 would be 63-78 months.

      The "kicker," so to speak is the cross-reference at § 2J1.2 (c)(1):

      If the offense involved obstructing the investigation or prosecution of a criminal offense, apply §2X3.1 (Accessory After the Fact) in respect to that criminal offense, if the resulting offense level is greater than that determined above.

      We have murders being investigated obviously.

     § 2X3.1 states that under that guideline, the offense level is 6 levels less than the level for the underlying offense--- but, it is capped at 30 (which would be good for him because the offense level for 1st degree murder is 43)

     30 and I, results in an advisory range of 97-121 months.

      Realistically, I could see the judge determining that he must apply the cross reference and the OL is 30, because: "the offense involved obstructing the investigation or prosecution of a criminal offense.

      Regardless of how the judge ultimately calculates the guidelines, he possesses the authority, after correctly calculating the guidelines, to impose a variance sentence. I wouldn't be surprised if that happens, but I'd be very surprised if Phillipos gets a hugely  extreme variance that results in probation.

    Likely, to have any shot at probation, he would have to get a substantial assistance motion for providing information or testimony the government deems valuable in prosecuting Tsarnev. That wouldn't guarantee anything but it would certainly make it more likely.



    the problem, as I wrote in (none / 0) (#6)
    by Jeralyn on Thu Oct 30, 2014 at 03:20:48 PM EST
    my earlier post is the terror enhancement which the Government believes applies and the jury found applicable by special verdict.  U.S.S.G. § 3A1.4,,  provides for an increase in offense level and criminal history category for offenses "involving or intended to promote acts of terrorism." His lawyers wrote that in this case, it would push him to a level 32 and cat VI, or 210 - 262 months.

      If the §3A1.4 sentencing guideline is applied to Mr. Phillipos, the resulting sentencing guideline would be 210- 262 months, well in excess of the five or eight year maximum sentence under §1001. ...The applicable guideline range for a violation of §1001 without the statutory terrorism enhancement is 0-6 months. Thus, the issue of whether the terrorism enhancement in §3A1.4 applies should be submitted to the jury.

    The Government argued in a brief (DE 494)that the enhancement could apply even if the jury didn't find his false statements were made in connection with a terrorism investigation. It argued the court could make the finding at sentencing without the jury having so found. The government made it clear that in its opinion, the guideline enhancement applies, which would make his guidelines more than 16 years, the max he can get.

    The defense argued that the enhancement should only apply if the defendant actually obstructed the investigation (not just that his statement involved a terror investigation) and the government cited cases to the contrary. Given the language of the instruction given to the jury on this, which only required them to find the statement involved a terror investigation, the court sided with the government.

    I think it's absurd to apply the enhancement in this case, but it seems the Government plans to make that argument. The guideline calculations you provided don't account for the possibility of the enhancement.

    Also, as you note, the judge can sentence below the guidelines including granting probation. A cooperation request from the government is not necessary and in this case I don't think he needs one, as his 3553(a) factors are strong. There is no mandatory minimum. In this child p*rn case, the guidelines were 97 to 121 months and the judge sentenced the defendant to one day, time served. There are many other such cases around the country. I don't think the government needs him for its case against Jahar, and he's likely of little value given that his credibility would be attacked by his conviction for (essentially) lying.


    I think the government (none / 0) (#7)
    by Reconstructionist on Fri Oct 31, 2014 at 08:43:10 AM EST
     should -- and probably will lose the argument that § 3A1.4 should apply. I'll offer my reasoning below.

      First, though, I'll simply remind you that while there are "many" cases where courts have granted "huge" (my word) variances that is primarily because this is a huge country with an (hyper)active federal law enforcement apparatus. There many times more cases where courts grant much more modest or no variances. Cases where the courts grant variances from guideline ranges in the vicinity of the 97-121 month one that I suggested above are the exception not the norm. It's difficult to assess the § 3553 (a) factors at this time. Other than his youth and a  strong argument that the guidelines (even without § 3A1.4) overstate the seriousness of his actual conduct, I'm not sure what factors you believe warrant a variance let alone one as extreme as the one you hope is granted. I will be very surprised if he gets probation regardless of how his guidelines are calculated. The guidelines do in my opinion overstate the seriousness of his lying in this case, but not to a degree that would make probation likely.

      going back to the starting point of § 2J1.2, even a judge were to decide  that the SOCs and the cross reference  in that guideline serve to overstate thus warranting a variance to "correct" and § 3A1.4 should not be applied, the base offense level for § 2J1.2 is 14.

       Even if the judge believes the entire 12-16 levels that could potentially be added to the BOL (again, without applying § 3A1.4) should be used to guide the variance, 14 and criminal history I sets an advisory range of 15-21 months.  Bear in mind the very real possibility a reasonable judge might find the entire amount added by  the enhancements does not reflect a too serious view of his conduct.  I can't tell the future, so all I am saying is I would be surprised if he gets probation.

      As for § 3A1,4, the textis:

       (a)       If the offense is a felony that involved, or was intended to promote, a federal crime of terrorism, increase by 12 levels; but if the resulting offense level is less than level 32, increase to level 32.

    (b)      In each such case, the defendant's criminal history category from Chapter Four (Criminal History and Criminal Livelihood) shall be Category VI.

      Application notes also must be considered:

      1.      "Federal Crime of Terrorism" Defined.--For purposes of this guideline, "federal crime of terrorism" has the meaning given that term in 18 U.S.C. § 2332b(g)(5).

    2.      Harboring, Concealing, and Obstruction Offenses.--For purposes of this guideline, an offense that involved (A) harboring or concealing a terrorist who committed a federal crime of terrorism (such as an offense under 18 U.S.C. § 2339 or § 2339A); or (B) obstructing an investigation of a federal crime of terrorism, shall be considered to have involved, or to have been intended to promote, that federal crime of terrorism.

       The reason I don't think §3A1.4 applies is not the argument you briefly summarize above (I think the court was correct in agreeing with the government at that stage that the enhancements are not elements of the offense charged for the jury to decide).

      My reason is that a federal crime of terrorism as defined in 18 U.S.C. 2332b (g)(5)requires an offense that is:

    (A) is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct; and

    ... along list of offenses in (B) which concededly include offenses Tsarnev might be guilty of violting (§ 2332f -- bombing public places is probably inarguable if he is the right person)

       An initial  question to me is whether there is evidence that Tsarnev's conduct was motivated by deire to influence, etc. or retaliate. Without that finding Phillipos' relevant conduct clearly cannot be found to make § 3A1.4 applicable.

      Even with that finding you have the strong (and recognized, at least in the 2nd Circuit) argument that, under § 1B1.3, a particular defendant is only  liable for acts and omissions   of others ivoved in the jointly undertaken criminal conduct that was reasonably forseeable to that particular defendant.

       There is an important distinction between an act (the bombing) and motivation for the act. Nothing in § 1B1.3 expressly suggests that motive or specific intent  can be "transferred" from a principal to an accessory after the fact. This reasoning was adopted in U.S. v. Stewart 2009 WL 4975286.

      I don't believe a case presenting that issue has been decided in the 1st, and I still don't have crystal ball, but Stewart is strong precedent in my view.

    the judge did instruct the jury on the enhancment (none / 0) (#10)
    by Jeralyn on Fri Oct 31, 2014 at 12:05:50 PM EST
    I was saying the judge agreed with the government that it was it was sufficient for the jury to find the false statement "involved" a terror investigation, and that it wasn't necessary for the jury to find it affected or obstructed the terror investigation. The defense brief argued the false statement had to have obstructed the terror investigation.

    I agree that if he applies the enhancement at sentencing, it's asking a lot for him to go from more than 200 months to probation on a variance.


    OK (none / 0) (#11)
    by Reconstructionist on Fri Oct 31, 2014 at 12:14:20 PM EST
      I think I get you. You were talking about the statutory enhancement  which serves to increase the max from 5 to 8, not sentencing issues per se.

    sorry about the formatting! (none / 0) (#8)
    by Reconstructionist on Fri Oct 31, 2014 at 08:44:01 AM EST
    typing is not my strong suit.

    I should have noted also (none / 0) (#9)
    by Reconstructionist on Fri Oct 31, 2014 at 09:00:09 AM EST
      that 2332f has a motivational/specific intent requirement that would have to be found as to Tsarnev, and

      I meant to say a variance from the vicinity of 97-121 months to probation not just variance.

      Again apologize for the formatting. It's hard for even me to read and I wrote it.