The Brothers (19 page)

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AZAMAT HAD CALLED
his father, Amir, as soon as the FBI agents had left in the early morning—it was the middle of the day in Kazakhstan. “Everything is fine,” Azamat told him. “We’ve been released.” It was late at night in Kazakhstan when he called his father again: “They are taking us again, it’s about the visas.” This was when Amir started looking for a lawyer and booking a ticket to Boston.

Amir Ismagulov (in the Kazakh tradition, the eldest son takes his surname from the grandfather’s first name, which is why Azamat and Amir have different last names) is the kind of man who may not believe in the system but is certain of his ability to work the system. Amir became famous in Kazakhstan in 2011, after he addressed the country’s authoritarian president, Nursultan Nazarbayev, publicly asking that authorities stop gratuitous inspections of businesses, and immediately received personal assurances for himself and his enterprise. Later that year, two bombs went off in Atyrau, the Kazakh oil capital, where Amir had a house; a radical Islamist group took credit for the bombings. Amir played a role in the ensuing shake-up of the city and received a government medal for his role in the fight against terrorism. Not only did Amir have money, expertise, and connections that always made him feel safe and confident, he even had proof that his family was on the right side in the War on Terror.

By Sunday, April 21, Amir had engaged a large Chicago law firm that had done work for Kazakh oil and gas companies. He expected VIP service from it. It took only a few days to get a visa, and on Thursday Amir landed in Boston. A Russian-speaking representative of the law firm—a junior partner, not a flunky—greeted him at the airport. Then he informed Amir that the firm had decided to drop the case: “It’s too high-profile for us.” It was also the wrong profile; the firm did not generally handle criminal cases. But Amir was now certain it had something to do with the fact that the firm’s senior partners were Jewish. The junior partner recommended a Boston-based immigration firm, with which he had already made the preliminary arrangements. The immigration lawyers assured Amir that there was nothing to worry about; they had handled hundreds of visa-snafu cases. While the immigration lawyer was preparing for the arraignment, the criminal defense lawyer who was representing Dias recommended lining up an experienced criminal attorney as well, and had an acquaintance of his come up from New York to start familiarizing himself with the case. Amir hired everybody.

On the morning of May 1, both Dias and Azamat were scheduled to appear at an immigration hearing. They had been in jail for ten days; their fathers, who were both in Boston, had not yet been allowed to see them. But when Amir got to the courtroom, his son and Dias were not there: each of them in turn appeared on a video screen through an uplink from the jail, and the judge informed them that their cases were continued for a week. Reassured by his son’s new immigration lawyer, and by seeing his son on the screen, Amir left the court certain that Azamat would be free in a week’s time.

At four o’clock that afternoon, Azamat and Dias were brought to the federal courthouse. The FBI had filed a criminal complaint against them. The document, which named both Azamat and Dias, described their alleged crime as follows:

[They did] willfully conspire with each other to commit an offense against the United States, to wit, 18 U.S.C. § 1519, by knowingly destroying, concealing, and covering up objects belonging to Dzhokhar Tsarnaev, namely, a backpack containing fireworks and a laptop computer, with the intent to impede, obstruct, and influence the criminal investigation of the Marathon bombings, in violation of 18 U.S.C. § 371.

An accompanying affidavit by Special Agent Scott Cieplik explained that Dias, Azamat, and Robel had “collectively decided to throw the backpack and fireworks into the trash because they did not want Tsarnaev to get in trouble.” Although the criminal complaint concerned only Azamat and Dias, the affidavit stated that there was probable cause to charge Robel with lying to investigators.

Amir got on the phone with the Kazakh consul in New York, Yerlan Kubashev. Amir had had enough of the slick American lawyers who seemed to think their job was to take his money and issue reassurances in exchange. “Find me a Russian-speaking lawyer!” Amir demanded. Kubashev thought it was a bad idea. Amir clarified: “Find me a good Russian-speaking lawyer!” The conversation lasted two hours, and in the end Kubashev helped Amir make contact with Arkady Bukh, a forty-one-year-old New York City criminal attorney given to wearing long velvet jackets and red bow ties. Bukh had immigrated to the United States from Azerbaijan in the early nineties and was admitted to the bar in 2003. He had represented a long line of Russian cyber-criminals, including hackers, spammers, and child pornographers. His website called him “Top New York Criminal Defense Lawyer” and implored: “Stop being a victim of the circumstances. Trust your freedom to No-one [
sic
] but Bukh.” Amir hired him. By this time he was out about seventy thousand dollars, between the bulk of the retainer that the big Chicago firm had kept and the fees he had paid the immigration lawyer and the criminal lawyer, both of whom he had taken off the case almost as soon as they entered it.

Amir’s belief in his ability to work the system might have been shaken, but his faith in his son remained firm: Azamat was innocent, and he was a good young man. Amir finally got to see him on May 3—two weeks after the arrest, two days after the arraignment—and Azamat told him everything. He said that lots of students had gone to Jahar’s room that evening—it just so happened he and Dias and Robel were the only ones who got in. He said that he and Dias had both told investigators the truth, and if there had been any obfuscation at all, it concerned the marijuana. He said that he had not even realized that the FBI was interested in the fireworks. He also said that he would never snitch on Dias; he would never agree to testify against him. And in any case, no one had ever intended to do anything bad, except smoke pot.

It looked like the classic game-theory setup known as the prisoner’s dilemma: Bonnie and Clyde are held separately and pressured to testify against each other. If either testifies, he or she will get a reduced sentence, while the other is put away for a long time, but if neither testifies, both have a chance of going free. Just as Azamat would never snitch on Dias, father and son were sure Dias would not give Azamat up either; the young men had been brought up with similar concepts of honor and friendship.

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AFTER A FEW DAYS
back in Cambridge, Robel had started to feel safer. Dias and Azamat had been jailed—they were probably getting deported—but he was home. Although the FBI had called, Robel remained a free man. By April 22, he was even feeling cocky again about having come that close to real danger.

“I was the last person to see the terrorist!” he texted a friend in Ethiopia. “I got questioned by the FBI detectives and I got followed for a day.”

“Are you lying??? Did you know him personally?? they didn’t hurt you or anything?” The friend was suitably impressed and worried. And a few minutes later the friend texted again: “Did he ever say anything to you about it?”

“He was one of my oldest friends,” was all Robel would say.

Then the FBI wanted to talk to him again. Robel made childish excuses on the phone: he did not have a good way of getting to downtown Boston (a twenty-minute subway ride from Cambridge). The FBI sent a car.

At eleven in the morning on April 26, Robel was delivered to a Homeland Security office in Boston. It was another windowless room, barely large enough for the desk and two chairs that were there. This time Robel talked to Special Agent Michael Delapena, a twenty-four-year veteran of the FBI who favored what he called “building rapport” over yelling and threatening as interviewing techniques. He asked about Robel’s drug use, his classes, his family: he learned that Robel had been raised by his mother, an Ethiopian immigrant, and had never known his father. He established that they, Robel and Agent Delapena, were both Americans, and he said, “We have been attacked.”

At first Robel insisted that he remembered getting Dias’s text—“Come to Jahar’s!”—and nothing after that. Agent Delapena told him he needed to choose sides: “You need to be part of Team America.” The other guys were playing for the other team, he said, and as long as Robel could not remember anything about being in the room, Delapena said, he was “on the bench.” He then instructed Robel to close his eyes and imagine being in the room—as a mental exercise, to try to break through the amnesia. Robel said he still could not remember. “That’s not an answer,” said Delapena.

A couple of hours into the interview, Robel remembered being in the room and seeing Jahar’s roommate there. Delapena stepped out of the room—to brief other agents on the progress he had just made, but also perhaps to let Robel’s distress intensify. When he returned, Robel was terrified. Was he going to be arrested? Were the other agents, whom he had glimpsed outside, going to be mad that he had not told them what he was telling Delapena now?

“There are wolves out there,” confirmed Delapena. Then he got up and locked the door. “It’s just you and me in here.” All Robel had to do to enjoy Delapena’s continued protection was produce a written statement.

The resulting document, a bit more than one single-spaced page, eventually became evidence in the case against Robel.

On Thursday, April 18th, at approximately 9 pm, I received a text from my friend Dias. The text asked me to go to Jahar’s room. As requested, I went to the room, where Dias and Azamat were waiting in front of the door.

The timing of the text message is off by an hour, but that is understandable. More important, according to the testimony of at least three other people—Lino Rosas, in whose room Robel and Azamat were playing FIFA when the message arrived; Azamat; and Andrew Dwinells—Dias had entered the room first and had been rummaging through Jahar’s things for about ten minutes by the time Robel and Azamat arrived, together.

Dias has free access into the room unless the door is locked, which it was not.

Robel had lived in the same dorm, so he knew that the door locked automatically when closed and required a key card to open.

One of the items was a dark backpack, possibly with one red stripe.

It was a plain black backpack.

He opened the bag, at which point I observed approximately seven red tubular fireworks, approximately 6 to 8 inches in length.

None of the fireworks was red.

I know that Jahar has a black SONY laptop, but I do not recall Dias taking it. It is possible that it was in the backpack.

The statement contains no other references to the laptop. Why would Robel include the assertion of lacking any recollection of a fact that was probably relayed by the interviewing agent? Something similar happens at the end of the penultimate paragraph:

At one point that evening, around 11:00 pm, the three of us had a discussion about what to do with the backpack and fireworks. Dias asked, in words I can’t exactly recall, if he should get rid of the “stuff”, which I took to mean the backpack. I said in response, “do what you have to do.” I was concerned how it would look if the Police found us (Jahar’s friends) with a backpack with fireworks, given what had happened. I took a two hour nap, and when I awoke, the backpack was gone. I do not know for sure who took it from the apartment. I am aware that there is a dumpster about 80 or 90 yards from their apartment.

The statement hardly reads like a spontaneously produced recollection of the facts known to Robel. It reads rather like it was dictated or even written by someone else and then given to Robel to sign. The last paragraph reads:

In retrospect, I should have notified the Police once I knew Jahar was the bomber. Further, I should have turned over the backpack to the authorities. I regret these decisions. I make this statement without any threats or promises made to me.

Sincerely,

Robel Phillipos

The charges proposed in the criminal complaint against Azamat and Dias added up to a maximum sentence of twenty-five years—five for conspiracy and twenty for obstruction of justice—but Robel, who would now be accused of lying to investigators, was looking at a maximum of sixteen. And because Robel was a United States citizen, he spent less than two weeks wearing an orange jumpsuit: on May 6, he was released on bail.

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AZAMAT AND DIAS
left county jail, too: they were transferred to a federal facility and placed in solitary. They saw each other again after a few weeks, when they, Robel, and all of their lawyers came together in a large conference room with the prosecution’s team and Bayan and her lawyer. They were there to videotape Bayan’s deposition before she left for Kazakhstan. Such were the terms of her immunity deal: she would tell the truth, and she would leave the United States. The story she told was essentially similar to what Dias and Azamat had by now told the investigators; she even admitted to being the one who demanded that the backpack be removed from the apartment. But she told the story first.

“Bayan’s father was the smart one,” Amir admitted later, during Azamat’s trial. “He got a lawyer right away.”

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ABOUT HALFWAY THROUGH
Azamat’s trial, Amir asked me over a lunch of oysters at a waterfront restaurant near the courthouse, “Do you think our lawyers are talking too fast? Is the jury having trouble following them?” It was July 2014. Amir had been living in the Boston area since he flew in at the end of April the previous year—he had gone back to Kazakhstan only once, for a month, to renew his visa. Azamat’s mother and toddler sister had temporarily moved to Boston as well. Amir wanted his other son, who was a year younger than Azamat, to come join the support team, too, but the young man’s application for a visa was rejected. Amir had even yanked him out of Cambridge University to intern at Chevron’s Kazakhstan operation for half a year—he had figured a recommendation from an American employer would get his son a visa. He figured wrong.