Thoughts On The Tsarnaev Complaint
Courtesy of Doug Mataconis, I see that the U.S. Attorney for the District of Massachusetts has charged Boston Marathon bombing suspect Dzhokar Tsarnaev.
The complaint and supporting affidavit, again courtesy of Doug, are here. At the time I write this, there's nothing on PACER yet.
A few observations about the complaint, and explanations of how this works:
1. Wait, what's a criminal complaint, exactly? As I explained last week, a criminal complaint is one way to begin a federal criminal case. To get one, a federal agent, with (Lord help us, hopefully) a federal prosecutor assisting, drafts an affidavit explaining the facts supplying probable cause for the federal charges sought. The agent takes the complaint to a United States Magistrate Judge. (Magistrate Judges are not Article III judges appointed by the President and approved by the Senate; they are selected by the Article III United States District Judges of any particular district to handle certain types of matters.) If the Magistrate Judge agrees that the affidavit supplies probable cause, he or she signs the complaint and (if sought) arrest warrant.
2. When did they get this complaint? Note here that the Magistrate Judge signed the complaint Sunday night. The government arrested Tsarnaev without a warrant on Friday, but wanted to ensure they obtained the prompt determination of probable cause the Constitution and Federal Rules of Criminal Procedure require.
3. What is he charged with? The complaint charges Tsarnaev with two federal crimes: use of a weapon of mass destruction under Title 18, United States Code, Section 2332a and malicious destruction of property resulting in death in violation of Title 18, United States Code, section 844(i).
4. A weapon of mass destruction? Really? Yes, because that's a term of art. (People paying attention to the news for the last 12 years knew that already.)
Here's what 18 U.S.C. 2332a says, in pertinent part:
A person who, without lawful authority, uses, threatens, or attempts or conspires to use, a weapon of mass destruction—
. . .
(2) against any person or property within the United States, and
. . . .
(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;
. . . .
shall be imprisoned for any term of years or for life, and if death results, shall be punished by death or imprisoned for any term of years or for life.
In other words, if you use a WMD against a person or property in the United States, and there's an interstate commerce hook to provide a justification for federal jurisdiction, it's a federal crime. The Boston Marathon absolutely impacts interstate commerce; one could dispute how the law got that way, but that's pretty clearly the law.
The statute defines "weapon of mass destruction," for purposes of explosives, like this:
the term “weapon of mass destruction” means—
(A) any destructive device as defined in section 921 of this title
Dammit. Can't you people keep everything in one place? Okay. Title 18, United States Code, section 921 defines "destructive device" to include this:
The term “destructive device” means—
(A) any explosive, incendiary, or poison gas—
(iii) rocket having a propellant charge of more than four ounces,
(iv) missile having an explosive or incendiary charge of more than one-quarter ounce,
(v) mine, or
(vi) device similar to any of the devices described in the preceding clauses;
If you're thinking that seems to mean the feds can charge anyone with use of a Weapon of Mass Destruction based on the use of anything that can be described as a "bomb," you'd be right. However, as an American, I live in confidence that the government would never exaggerate the existence of WMDs.
5. So, what does the government have to prove? On the WMD count, they have to prove that Tsarnaev "(1) knowingly used, or attempted or conspired to use, a weapon of mass destruction, and (2) knowingly did so against persons in the United States."
6. What about the destruction of property charge? I'm glad you asked! Here's what that statute says:
Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both; and if personal injury results to any person, including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this subsection, shall be imprisoned for not less than 7 years and not more than 40 years, fined under this title, or both; and if death results to any person, including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this subsection, shall also be subject to imprisonment for any term of years, or to the death penalty or to life imprisonment.
This crime requires proof of the following elements: that Tsarnaev (1) maliciously; (2) damaged or destroyed a building; (3) by means of fire or explosive; and (4) the building must have been "used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce."
7. So, how is the affidavit in support of the complaint? The affidavit in support of the complaint is not terrible. It establishes probable cause by (a) the FBI agent's testimony that he has reviewed a video showing a suspect leaving a backpack at the site of the explosion, and that having viewed Tsarnaev believes that Tsarnaev is the one on video dropping the backpack and acting suspiciously afterwards, (b) that two carjackers bragged to their victim that they had committed the bombing, and that the carjacker who wound up dead was identified by fingerprints as Tsarnaev's brother, and that the other carjacker was caught on video at an ATM and is identifiable as Tsarnaev, (c) the marathon bombs and the bombs found at the scene of the post-carjack shootout used similar elements, including a pressure cooker, and (d) a search of Tsarnaev's room revealed a hat and jacket that appear to be the ones in the video of the suspect who dropped the backpack at the marathon. The agent also alleges facts sufficient for this stage to suggest the marathon explosion impacted interstate commerce.
That's more than enough for probable cause.
My criticism of the affidavit is that the attribution is sloppy. Attribution is the practice of making it clear how the affiant knows each fact stated in the declaration. "On April 20 I spoke to Police Officer Smith, who told me that earlier that day he searched the scene described above and found a piece of a pressure cooker," is an attempt at attribution; "police found a piece of a pressure cooker at the scene" is not. Here the FBI agent does a generic gesture at attribution by saying everything in there was learned from law enforcement. It's not as bad as the genuinely awful probable cause affidavit against George Zimmerman, but it's sloppy, and bad practice. The feds are generally better at attribution, and I would have expected more care in the most high-profile case in the United States. Ultimately, it probably won't make a difference.
8. Is this really all the government has on Tsarnaev? Probably not. They are just starting to devote vast resources to interviewing witnesses, tracking phone traffic, examining financial records, and evaluating bomb components. There's no reason to put more than is necessary in the affidavit; it only leaves the witness more vulnerable to cross-examination later.
9. So what happens next? I described that here. Short answer: once he's well enough he appears in court, and the feds swiftly seek an indictment from a grand jury.
Edited to add: The New York Times reports that a magistrate conducted an initial appearance hearing at Tsarnaev's bedside. The transcript is here. The government and Tsarnaev's lawyer agreed to set the deadline for a preliminary hearing at the end of May, which may signify that Tsarnaev and his attorneys will attempt to resolve the matter with a plea. Normally the judge would be required to set the preliminary hearing within 14 days, and the government would rush to indict before then. But if the defense is contemplating the possibility of waiving indictment and pleading guilty, they might waive that deadline as they have today. The defense doesn't need time to prepare for a prelim — there won't be one, the feds will obviate the need for the prelim by indicting. The defense doesn't have any role in the indictment. The defense might need more time for Tsarnaev to recover from his wounds, but they could get that from the assigned United States District Judge after the feds indict. Generally the only point in stipulating to a long period before the prelim is negotiation.
Edited again to add: I forgot one point. The indictment, if there is one, will very likely charge an array of other federal crimes. Complaints are often narrower than the indictments that follow; there's usually no need to make them broad.
Last 5 posts by Ken White
- Lawsplainer: So Are Those Christian Cake-Bakers In Oregon Unconstitutionally Gagged, Or Not? - July 8th, 2015
- Donald Trump's Lawyers Don't Know Or Don't Care What Defamation Is - July 1st, 2015
- No, Federal Grand Jurors Do Not Issue Federal Grand Jury Subpoenas - June 25th, 2015
- Is "No, I Didn't Do It" Defamatory? The Bill Cosby Defamation Case - June 24th, 2015
- DoJ's Gag Order On Reason Has Been Lifted -- But The Real Story Is More Outrageous Than We Thought - June 22nd, 2015