FBI Charging Affidavit Against Tsarnaev Contains Factual Error

The Obama-loving Talking Points Memo, which once faulted everything the FBI and the federal government did in its War On Terror until Barack Obama became president, acknowledges that "even the FBI is not immune to swirl of bad info in Tsarnaev case." The fact that TPM says a federal charging affidavit against Boston Marathon bombing suspect Dzhokhar Tsarnaev made by the FBI's chief investigator got wrong was the location of where it claims the two brothers carjacked a Chinese national and his Mercedes SUV. The affidavit says the carjacking took place in Cambridge. The suspect told the Boston Globe he was carjacked in Boston, a minor point TPM says and is not one of consequence.

The error is blamed on language barriers in reference to the victim's Chinese nationality. Yet TPM doesn't challenge law enforcement's reliance on his suggestion that the suspects planned to head to New York to commit their next terrorist attack, even though he couldn't understand everything they said because the two suspects spoke in Russian part of the time during his ordeal, laying aside his English language barrier. Here's how TPM describes the factual error in the FBI affidavit:

In the days since law enforcement agents apprehended the surviving suspect in the Boston Marathon bombing last Friday, officials and news reports have been clarifying and correcting the record on a number of points, large and small, related to the attack and the ensuing search for the suspects.

Some misinformation, such as individuals wrongly identified by media outlets as suspects or persons of interest in the case, was easy enough to sort out. (Even if the emotional impact on wrongly-fingered individuals can’t be undone.) Other aspects of the case, like the alleged actions of the Tsarnaev brothers on Thursday night and early Friday morning last week, have proved harder to pin down.

And it turns out even the federal investigators most closely involved in the case were caught in the early swirl of bad or incomplete information: an affidavit written by a FBI agent in support of the initial charges filed against Dzhokhar Tsarnaev now appears to contain a factual error about the events of Thursday night.

“Near midnight on April 18, 2013, an individual carjacked a vehicle at gunpoint in Cambridge, Massachusetts,” Daniel Genck, an FBI special agent in Boston, wrote in the affidavit filed on Monday in federal court in conjunction with the compliant against Dzhokhar Tsarnaev.

It’s a minor point, but it now appears the carjacking occurred in Boston, not across the Charles River in Cambridge. The carjacking victim said so in an interview with the Boston Globe, which published a story on Thursday based on the victim’s harrowing tale. And the Cambridge Police department confirmed as much to TPM.

“The Cambridge Police Department has always maintained that [the carjacking] occurred on Brighton Ave. in Boston,” Dan Riviello, a spokesperson for the Cambridge Police Department, told TPM on Friday.

According to Riviello, a statement published on the department’s website last Friday, which said the carjacking occurred in Cambridge, was actually drafted by the Middlesex County District Attorney’s Office. The statement was later edited to remove a reference to the incident having occurred on Third Street in Cambridge, Riviello said. (Told by TPM that, as of Friday afternoon, the statement still referred to an “armed carjacking in Cambridge,” Riviello said that should probably be edited as well.) 

“From the start there was a little bit of confusion because there was a language barrier,” Riviello said, in apparent reference to the victim of the carjacking, a 26-year-old Chinese national whom the Globe identified only by his American nickname, Danny. Riviello said the confusion might have been a mix-up based on the victim’s home address. According to the Globe, Danny lives in Cambridge.

The Cambridge/Boston mistake speaks to just how pervasive bad information can be. But the discrepancy should not have any effect on the case against Dzhokhar Tsarnaev. According to Ronald Sullivan, the director of the Criminal Justice Institute at Harvard Law School, the slip up will have “absolutely no impact on the affidavit or on the validity of a subsequent indictment.”

“A fact of that nature, or a misstatement of that nature, is not consequential for the purposes of the affidavit,” Sullivan told TPM on Friday. “Boston and Cambridge sit right next to each other. That’s something that, even if an indictment listed Cambridge instead of Boston, that could be cured by what’s called a superseding indictment.”

The location and time of the carjacking is critical, however, to whether the two suspects could be placed at the scene in Cambridge where they allegedly shot and killed an MIT police office. Earlier news reports based on law enforcement accounts claimed the MIT police shooting was reported at 10:30 p.m. and the armed carjacking took place near the police shooting moments later. As CBS News reported:

• 10:30 p.m. Thursday: An MIT campus police officer was found shot in his vehicle in the area of Vassar and Main Streets. According to authorities, the officer was found with multiple gunshot wounds. He was transported to Massachusetts General Hospital and pronounced dead.
• Moments later, police received reports of an armed carjacking by two males in the area of Third Street in Cambridge. The victim was carjacked at gunpoint by two males and was kept in the car with the suspects for approximately a half hour. The victim was released at a gas station on Memorial Drive in Cambridge. He was not injured.
• Authorities said the suspects threw explosives from the car as police followed it into Watertown, just west of Cambridge. The suspects and police exchanged gunfire, and one of the suspects was critically injured. A transit police officer is seriously injured.
• 1 a.m. Friday: Gunshots and explosions are heard in Watertown. Dozens of police officers and FBI agents converge on a Watertown neighborhood. A helicopter circles overhead.

The FBI affidavit places the timing of the carjacking almost 90 minutes later than earlier reported. As the Boston Globe reported, the carjacking victim's ordeal lasted "a harrowing 75 minutes." Yet the police stop in Watertown where the shootout between the suspects and the police occurred began about 12:42 a.m. according to the Boston Globe based on police radio dispatch accounts. By 12:51 a.m., one police officer was down, along with the suspect Tamerlan Tsarnaev, and Dzhokhar had fled in the carjacking victim's SUV from the scene of the shooutout. The Boston Globe account says the carjacking victim pulled his SUV over to respond to a text message, but that he had noticed a lot of police cars presumably rushing to the shooting scene as he passed by the MIT campus before crossing the river into Boston where he says he was carjacked.

It was a cool spring night, and a 26-year-old entrepreneur from Cambridge had picked the perfect way to unwind: take his new $50,000 Mercedes-Benz out for a spin.

As he drove his spacious 2013 black SUV toward Boston, the man — a Chinese immigrant who asked to be identified only by his American nickname, Danny — noticed a swarm of police cars with flashing blue lights near the MIT campus.

After a short drive across the river, Danny, who earned a master’s degree from Northeastern University last year and is trained as an engineer, pulled his car to the curb on Brighton Avenue to answer a text message.

Suddenly, an old sedan swerved behind him and slammed to a stop. A thin young man in dark clothes got out, approached the passenger window, and rapped on the glass. Danny lowered the window.

The man reached an arm through, unlocked the door, climbed in, and pointed a handgun . . .

What followed was a harrowing 75 minutes during which 26-year-old Tamerlan Tsarnaev — soon joined in the car by his brother Dzhokhar — forced Danny on a circuitous journey through Brighton, Watertown, and back to Cambridge.

It was around 12:15, an hour and a half since he was abducted. Danny realized it was a critical moment: The doors were unlocked. Dzhokhar was in the store. The gun was tucked in the driver’s side door. And Tamerlan was distracted, struggling with the GPS device he had brought with him on the carjacking.

“I was thinking I must do two things: unfasten my seatbelt and open the door and jump out as quick as I can. If I didn’t make it, he would kill me right out, he would kill me right away,” Danny said . . .

At 12:42 a.m., Watertown’s dispatcher warned: “Okay, the vehicle is now in Watertown, units, in the area of 89 Dexter,” part of a slumbering neighborhood of tidy houses and duplexes whose residents proudly decorate their homes with flower boxes. A lot of Watertown was like that — a small town where many of the police officers never fired their guns outside of the practice range.

“I’m right behind that vehicle,” Reynolds replied.

The patrol supervisor, Sergeant John MacLellan, advised caution. “Don’t stop the car until I get there,’’ he told Reynolds, according to Watertown Police Captain Raymond Dupuis. “Wait for help to come.’’

But there was no time. The SUV took a sudden left turn from Dexter Avenue onto Laurel Street and came to an abrupt stop — right behind a second vehicle, the green Honda Civic that Dzhokhar Tsarnaev had retrieved moments earlier. As Reynolds watched, one brother emerged from each car.

“The suspects get out and start shooting at Joe Reynolds,’’ said Dupuis.

I wouldn't describe the factual error in the FBI's affidavit as an inconsequential error. It's not just the location of where the carjacking supposedly occurred it got wrong. The timing of when it occurred is off by nearly 90 minutes, which causes the entire narrative of accounts to break down. The FBI affidavit places the time at which the suspects stopped at the gas station where the victim made his escape at 12:17 a.m. based on surveillance camera footage taken from the gas station of the suspects. The timeline is way off, and that's a very troubling discrepancy. The carjacking victim simply could not have been with the suspects for nearly 75 minutes if he was carjacked about midnight as the FBI affidavit claims.