Criminal Law: Substantive

A Preview of Likely Terrorism-Related Charges Against Tsarnaev

Monday, April 22, 2013, 12:05 AM

There will be no shortage of charges in the indictment that will issue against Tsarnaev shortly. Many if not most will be ordinary violent-crime charges rather than terrorism-specific ones--though they'll be no less potent for that. But what about charges from among the set of offenses enumerated in the "Terrorism" chapter of U.S. Code Title 18 (i.e., chapter 113b)? Here are the leading possibilities (including three capital offenses):

1. I fully expect to see a count under 18 USC 2332a, aka the "Use of Weapons of Mass Destruction" statute. Don't be thrown off by that WMD reference in this statute. That statute defines WMD extremely broadly, including more or less any explosive device--and certainly the devices used in this instance. Section 2332a carries the death penalty for circumstances where the offense caused death. The only tricky aspect with 2332a is the requirement that one of the following four conditions be met (these conditions are required where the charge involves an attack within the US other than an attack on federal personnel or facilities):

(A)the mail or any facility of interstate or foreign commerce is used in furtherance of the offense;

(B)such property is used in interstate or foreign commerce or in an activity that affects interstate or foreign commerce;

(C)any perpetrator travels in or causes another to travel in interstate or foreign commerce in furtherance of the offense; or

(D)the offense, or the results of the offense, affect interstate or foreign commerce, or, in the case of a threat, attempt, or conspiracy, would have affected interstate or foreign commerce

It seems to me that the government might have a case under subpart (C) in light of the older brother's trip to Russia, but we'll have to see what is revealed on that front over time. Subpart (D) seems the more likely hook given the scale and context of this attack.

2. Another capital charge that might be available from chapter 113B is 18 USC 2332b ("Acts of Terrorism Transcending National Boundaries"). There are several moving parts here, but the pivotal one is that some element of this plot had to involve activity abroad. Again, the older brother's trip to Russia may well prove to have been part of this story, but that remains to be seen I suppose. Even if the government has intelligence suggesting that this is so, however, it might be that the nature of the intelligence precludes its use in court (imagine, for example, that the Russians provide the information but for whatever reason--protecting a source or method most likely--they refuse to allow it to be used in a court proceeding).

3. Next up: 18 USC 2332f (paraphrased title: bombing public places). This is another capital charge, and another complicated statute with many moving parts. The core coverage of the statute is for bombings in public places, which is applicable here, but there is an additional complicated jurisdictional requirement where the attack is in the US:

(b) Jurisdiction.— There is jurisdiction over the offenses in subsection (a) if—

(1)the offense takes place in the United States and—

(A)the offense is committed against another state or a government facility of such state, including its embassy or other diplomatic or consular premises of that state;

(B)the offense is committed in an attempt to compel another state or the United States to do or abstain from doing any act;

(C)at the time the offense is committed, it is committed—
(i)on board a vessel flying the flag of another state;

(ii)on board an aircraft which is registered under the laws of another state; or

(iii)on board an aircraft which is operated by the government of another state;

(D)a perpetrator is found outside the United States;

(E)a perpetrator is a national of another state or a stateless person; or

(F)a victim is a national of another state or a stateless person;

It may well turn out that a case could be made under (B) above, but we'll have to wait and see about that. But it's not necessary. Look at subpart (F), and recall that one of the victim's is a Chinese national (a student). So there you go. 2332f(d)(3) does further limit the statute's reach in that particular scenario, specifying that when jurisdiction is predicated on (b)(1)(F) there must also be an impact in interstate commerce. Satisfied here, I think.

4. Material Support charges under 2339A or 2339B? Hard to say at this point, without further information. But also not terribly important that these be made to work. 2339A and 2339B are very important in cases not actually involving particularized plots, but where as here you have a completed attack, the statutes mentioned above matter far more.

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