Update: In 2014, Dias Kadyrbayev and Azamat Tazhayakov were convicted of obstruction of justice and conspiracy. Robel Phillipos was convicted of providing false statements to the FBI. (See "Materially False": Third Friend in Marathon Bombing Investigation Convicted.)
In August of 2013, a federal grand jury indicted Dias Kadyrbayev and Azamat Tazhayakov, friends of Boston Marathon bombing defendant Dzhokhar Tsarnaev, for conspiracy to obstruct justice, obstruction of justice, and aiding and abetting. The charges stem from the friends’ allegedly trying to get rid of evidence of Tsarnaev’s complicity in the April 15 bombing, which killed three people and injured over 200. A third friend, Robel Phillipos, faced federal charges of lying to investigators; the government alleges that he lied in saying that he didn’t remember going to Tsarnaev’s dormitory with Kadyrbayev and Tazhayakov the day that authorities released pictures of the bombing suspects.
This article is about the crime of conspiracy. For more information on the three friends as accessories after the fact, see Accessories After the Fact in the Boston Marathon Bombing.
What is Conspiracy?
The term “co-conspirators” is a bit redundant, because a conspiracy by definition requires more than one person—you cannot conspire with yourself.
A conspiracy is an agreement between two or more people to break the law. (18 U.S.C. § 371.) The agreement itself is the crime of conspiracy, although most conspiracy statutes require that some “overt act” (however slight) be taken by one of the co-conspirators in the chain of actions needed to fully commit the crime. So, the crime can be thwarted or called off, but if one of the co-conspirators took even the first step toward committing the agreed crime, all of the co-conspirators may be convicted of conspiracy. This is true even if the agreed crime never occurs.
Conspirators may be convicted of both the conspiracy and the agreed crime without violating the constitutional double jeopardy provision. Accused co-conspirators are usually tried together and, under certain circumstances, statements of one can be used against the others.
Unlike a charge of being an accessory after the fact, a charge of conspiracy does not require that the underlying (agreed) crime have been committed.
The heart of the crime of conspiracy is an agreement by two or more people to commit a crime. If the alleged Boston Marathon bomber’s friends agreed to help him by removing evidence from his dorm room or by lying to investigators, that is an agreement to obstruct justice. An agreement need not be a formal contract; a simple discussion among the co-conspirators that they plan to violate a law is enough.
An overt act in the furtherance of the agreed crime can be anything that is a step in the process of committing the crime, even a legal act. For example, in the Boston Marathon bombing case, throwing away a laptop is not itself a criminal act, but if it was a step in the crime of obstructing justice by disposing of evidence, it is an overt act in the furtherance of a conspiracy.
It only takes one act by one of the co-conspirators to prove the crime of conspiracy against all of them. So, if only one of the three friends of Tsarnaev removed items from his dorm room, all three and Tsarnaev himself could be convicted of conspiracy to obstruct justice, assuming they previously agreed to a plan of hiding evidence.
It is a violation of federal law for anyone to take an action that:
- is in violation of U.S. or state law,
- kills, maims, or injures another within the U.S., and
- is committed by using interstate mail or interferes with interstate commerce.
(18 U.S.C. §2332b.) Interstate commerce is very broadly defined and covers almost any kind of commercial venture that goes on in America. Shortly after the Boston Marathon bombing, federal aviation authorities halted flights into and out of Logan International Airport in Massachusetts. The government could use this and many other effects of the bombing to show that it interfered with interstate commerce.
Any person who conspired with anyone who committed at least one of the acts in violation of this terrorism statute can also be tried under the statute.
Boston Bombing Alleged Co-Conspirators
Phillipos informed police that he and the other two friends noticed a resemblance between the alleged surviving bomber (whom they knew) and the surveillance photographs of the alleged “white-capped” bomber in the days after the bombing. The three friends then went to the alleged bomber’s dorm room and found a backpack with empty fireworks and a laptop, according to the young man. Phillipos also told police that the three knew that the gunpowder from fireworks was used in constructing pressure-cooker bombs of the type used in the Boston bombing. The three then took the backpack, fireworks, and laptop out of the dorm room and to a dumpster, according to the young man.
In accordance with this description of facts, Tsarnaev’s friends haven’t been charged with conspiracy in the bombing itself—only with crimes relating to their alleged attempts to help him after the bombing had been planned and carried out.
Common Defenses to Conspiracy
Defendants charged with conspiracy have a number of defenses available to them. Here are a few of the common ones.
If the three friends of the alleged Boston Marathon bomber can convince a jury that they did not agree to do anything together, they won’t be convicted of conspiracy to obstruct justice. This is so even if one of them actually did take an action that aided the alleged bomber. For example, if one of the three independently decided to grab items out of Tsarnaev’s dorm room and dispose of them, without agreement or participation by the other two, he may be convicted as an accessory after the fact, but the other two could be acquitted.
No overt act
If the three friends can show that none of them took an overt act to help the alleged bomber hide evidence or evade arrest, they should be acquitted. For example, if the defense can show that the three young men did not remove items from the dorm room but rather the alleged bomber did so himself, that would be proof that the alleged co-conspirators did not take an overt act.
However, if any one of them took an overt act and there was an agreement to help the alleged bomber, then they could all be convicted of conspiracy.