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—
(i) bomb,
(ii) grenade,
(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


  1. Peter says

    So, inviting wild speculation here, but is the DOJ going to try and use this as a test case for their very broad public safety exception interpretation? From the sounds of it, they have a relatively easy case without needing a confession or statement from the defendant, so I'm not sure why they'd use this case unless they want a high-profile and emotionally charged platform on which to raise the issue.

  2. asper84 says

    Just wondered if it's usual to refer to suspects as things like "Bomber One" and "Bomber Two" in a complaint? – I mean when referring to a specific person (e.g. identified by CCTV) rather than an "idea".

    Seems a bit strange to me (innocent until proven guilty etc.) but I have no idea if this is a usual/accepted terminology.

  3. Conster says

    Wait, grenades count as WMDs?
    Also, I'm probably reading this wrong, but couldn't 18 U.S.C. 2332a theoretically be used against people that go dynamite fishing in a national park (a stick of dynamite being similar to an explosive bomb, and the blast potentially causing damage to the park's ecosystem and therefore the park itself, which is "used" by a government agency, falling under clause 3: "(3) against any property that is owned, leased or used by the United States or by any department or agency of the United States, whether the property is within or outside of the United States")?

  4. MattS says

    "Magistrate Judges are not Article III judges appointed by the President and approved by the Senate;"

    Minor nit pic, but the appointments clause of the constitution would actually allow Congress to give the President the power to appoint Art III judges without confirmation or to give the appointment power to someone other than the President.

    "but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments"

    My personal thought on this matter subject to lessening the confirmation fights in the Senate over the appointment of Circuit and District court judges would be to give the appointment power for Art III judges to SCOTUS.

  5. says

    @Conster: that's a ridiculous scenario, you'd think — but yes.

    @asper84: bear in mind this isn't a document ever shown to the jury, so the potential prejudice of such terms isn't really a factor. It is a bit of question-begging, though.

    Quick story along that line: when I was a rookie fed, my friend — another rookie — was prosecuting a bank robbery. The guys who went into the bank had pled out; my friend was trying the wheelman, who denied knowing what was going on. Friend was examining a witness. "Witness, can you put an R where you saw the defendant in the car outside the bank," friend asks. The judge looks confused — car doesn't start with R, and the defendant's name doesn't start with R. "What's R for, counsel?" asks the judge. Friend, innocently, to judge: "ROBBER." Courtroom erupts in laughter.

  6. naught_for_naught says

    Thanks for the coverage, Ken. Keeping informed in the aftermath of the Boston bombing is like trying to get a drink from a sewage pipe. There is just too much shit in the stream.

  7. Cloudesley Shovell says

    I'm waiting to see how many hundreds of charges Massachusetts will bring against this guy. Three murders by the bombs, felony murder of his brothers, murder of the police officer, followed by a couple hundred attempted murders, malicious wounding, aggravated assault, maiming, armed robbery, kidnapping, carjacking, and whatever else the prosecutors can dig up out of the statutes.

    This guy will never breathe air outside of a cage.


  8. urbantravels says

    Has the autopsy of Tamerlan established whether he died as a result of police gunshots, or as a result of Dzhokhar driving over him?

  9. Cloudesley Shovell says

    Then again, perhaps in 25 or 30 years he will find himself on the faculty of some university somewhere.

  10. Wondering says

    Why does the statute on property destruction have to specify "including any public safety officer" when it's already said "any person."

    I mean, I'm sure there's jokes to be made about that, but what's the legal reason for needing that extra clarification?

  11. MattS says

    Cloudesley Shovell,

    Leave off the armed robbery. From what I have read, the Tsarnaevs weren't involved, they just had the bad luck to carjack a car outside an armed robbery in progress.

    "Then again, perhaps in 25 or 30 years he will find himself on the faculty of some university somewhere."

    Not all cages are made of stone walls and iron bars.

  12. Votre says

    I think, in the end, all the legal and constitutional niceties will go by the wayside with this case.

    You have a dead 8-year old kid and a Chinese national.

    There is no way in a million years that the federal government is going to allow the surviving Tsarnaev brother to leave that courtroom any way other than under a federal sentence of death.

    There's too much unresolved public frustration over the Sandy Hook CT incident – and far too much realpolitik in play for it to conclude any other way.

  13. MattS says

    "There is no way in a million years that the federal government is going to allow the surviving Tsarnaev brother to leave that courtroom any way other than under a federal sentence of death."

    Extradite him to China so they can try him for the death of the Chinese national?

  14. nlp says

    MattS, I think the armed robbery will stand. When they carjacked the car they made the driver go to an ATM and make a cash withdrawal. Considering everything else that happened, that guy must think he's the luckiest person in the country.

  15. MattS says


    I forgot about that. I was thinking of the early claims that they robbed the 7-11 that the car they jacked was sitting in front of. Turned out latter that the robbery of the 7-11 was unrelated.


    Please respond to my first comment.

  16. Chris says

    Can you explain the miranda exemption?

    I mean, I intuitively know I have the right to council and the right not to talk to cops at anytime.

    So the pukes claim of "public safety" exemption, does't make his rights any less absolute, correct?

  17. ChrisTS says

    Why would they go to felony murder for the brother if, as reported, he drove over him?

    Also, do Federal rules allow FM liability for co-felons?

  18. Scott says

    I was a bit surprised the affadavit doesn't bother to describe what exact property was damaged that is used for interstate commerce… that seems like a key requirement of the second charge. Or is that such a low bar nowadays they don't even bother?

  19. MattS says


    My understanding (IANAL) is that if you commit a felony and a bystander at the location of the felony has a heart attack or otherwise dies of natural causes during the felony they can hit you with felony murder. And yes, the death of an accomplice would be covered.

  20. Helena says

    How does the decision to charge him affect the decision not to remind of his right to remain silent and his right to legal representation?

  21. Russ says

    So a couple guys set off two black powder bombs on a crowded street and a firm accidently sets off 200 Tons of explosives across from a school. Guess who used the WMD?

  22. says



    Please respond to my first comment.


    You posted your first comment at 1:26 PST.

    By 2:31 PST, as part of a flurry of five comments, you were asking me to respond.

    Perhaps you should reconsider your sense of entitlement, and your manners.

  23. Bob Brown says

    …"as an American, I live in confidence that the government would never exaggerate the existence of WMDs."

    Um, your tongue looks silly way over there. I know a surgeon who could help you.

  24. MattS says


    I don't see the issue with my manners, I did say please.

    As to any sense of entitlement, it's not like I set a deadline or something. :-)

    I will however admit that patience is not my strongest virtue.

  25. MattS says


    When there is a specific statute to cover carjacking, I don't think they could get away with charging carjacking AND armed robbery predicated on the carjacking.

  26. ULTRAGOTHA says

    MattS –

    Poking the bear in his own den might be a strategy you want to rethink.

  27. MattS says


    Seriously, while it is off topic, I am genuinely interested in what you think of my comments on the appointment of art III judges.

  28. nlp says

    Wondering, I'm not positive about the Federal statute, but in Massachusetts and a number of other states there is a higher penalty for killing a police officer, and sometimes for killing any first responder.

  29. says

    And I'd like it, Ken, if you'd respond to my question from several months ago about whether you'd prefer to be burned alive or frozen in a block of ice?


  30. AK says

    The Boston Marathon absolutely impacts interstate commerce; one could dispute how the law got that way, but that's pretty clearly the law.

    So let's say the feds didn't have power over everything and everyone by abusing the interstate commerce clause. Would the feds still have a federal case due to the killing of a Chinese national?

  31. Simon says

    (iii) rocket having a propellant charge of more than four ounces,

    Launching a large model rocket is a crime punishable with the death penalty?

  32. TomB says

    "What's R for, counsel?" asks the judge. Friend, innocently, to judge: "ROBBER." Courtroom erupts in laughter.

    For God's sake tell me that at least one smartass had the balls to yell out "Wewease the wobber!"

  33. Norahc says


    Given that law enforcement chose not to read him his Miranda Warning under the "public safety exception", and that they are apparently questioning him in the hospital while he is under the influence of medications do you think that they will try to use his statements against him in some way?

  34. Josh C says

    Some say that Ken would snark with fire,
    Some say crack with ice.
    From what I’ve tasted of his ire
    I hold with those who favor fire.
    But if he had to banter twice,
    I think I know enough of hate
    To say that for correction ice
    Is also great
    And would suffice.

    (Also: a literal reading suggests that "Malicious Destruction of Property" includes all private property. Is it sufficient that he was malicious, and that he destroyed his own private property (e.g. the backpack)?)

  35. Shawn Young says

    Suppose as per the edit there are plea negotiations, and suppose a plea bargain for less than the death penalty is struck. How high up the political food chain does a deal with such a high-profile defendant go to get signed off? Can POTUS get involved, or is he necessarily excluded (at least de jure)? The AG? Etc.?

    If there was another case where some anonymous drug dealer who executed, say, six people, would the plea process on the Government's side be the same out of the spotlight?

  36. Simon says


    I launch a model rocket. Due to faulty build and/or launch, it hits a brick wall. Obviously damage to the brick wall is unlikely to exceed the damage of paint on the wall. This is also use of a WMD carrying the death penalty?

  37. OngChotwI says

    A large rocket motor (Estes E12-8) is 2.24oz with 1.3oz of fuel. If you launch more than a 3 stage rocket with these – you've got WMD material. (I'd assume there's larger motors out there..) If they'd pointed this out during the IRAQ squirmish, we wouldn't have made so much fun of the lack of WMDs..

  38. nlp says

    Josh C,
    In regard to the property damage, the bombs blew out the windows and damaged the exteriors of several small businesses along that part of the street. That will probably qualify for the charge. And one of the businesses, Lenscrafters, is a nationwide corporation.

  39. MattS says


    "I launch a model rocket. Due to faulty build and/or launch, it hits a brick wall. Obviously damage to the brick wall is unlikely to exceed the damage of paint on the wall. This is also use of a WMD carrying the death penalty?"

    Given the way most federal statues in general and this one in particular seem to be written, hope and pray that you haven't pissed off any federal prosecutors recently.

  40. ChrisTS says


    Yes, FM can attach to almost any death that occurs during a felony or in the escape. But, some jurisdictions do not permit FM for the death of a co-felon. Further, in this case, I would think he is liable for running over his brother – perhaps intending to kill the police officers – without recourse to FM, which is a bit of a risk.

  41. gramps says

    Matt: It deoends how the state has structured its law… In CA there are many wheelmen doing life or life-without because their "passenger" killed someone, or someone died, during the robbery. Real poetic justice is meted out when the death is the robber…. yes. Robber sticks up the liquor store, clerk comes up with Colt instead of cash. Dead robber and wheelman waiting outside goes down for murder under felony murder rule. Life is tough, wear a cup.

    I defer to Ken for the federal rule on this.

  42. Josh C says


    First, a sincere thanks for the answer. Unfortunately, I was actually curious about the more trivial case. Are the Mythbusters (for example) guilty of WMD use every time they explode one of their creations? Was their errant cannonball a while back actually terrorism? As written, it looks like any explosive device which destroys itself would quslify as a WMD. Is there something I'm missing (I hope!)?

  43. Steven says

    Anyone know how Tsarnaev got a lawyer?

    More generally, could a court have appointed one for him if he wasn't conscious, could he have had a standing lawyer of his own who would automatically represent him on any charges brought against him, or would he have to hire one or accept a public defender after he gained consciousness?

  44. Hasdrubal says

    Steven: The bottom of page 5 of the transcript, the judge says "I have provisionally appointed the federal defender, Mr. Fick, to represent you in this matter."

    The judge appointed a public defender.

  45. Delvan Neville says

    @Wondering: I believe its there for the rest of the sentence to then specify that it applies to public safety officers who die as a result of proximate consequences, which I take to mean things like a fireman dying while fighting a fire that broke out from a bombing or the like. I could imagine someone attempting to argue that firemen are supposed to fight fires, that the job carries the risk of dying when you go into a burning building all the time, and that they think it that death shouldn't be tried the same as a resident dying while inside the building because they couldn't get out.

  46. jimmythefly says

    Folks, I believe you are skimming to quickly over the first part of the whole WMD law. There's a "without lawful authority" qualifier right in the first sentence.

    The trickiness seems to be that WMD is both a noun and an adjective. To be guilty you really have to employ a weapon in a certain method. But not just any weapon, only those that meet the threshhold/definition.

    Note the words "destructive device". At first blush, model rockets don't count -they may cause injuries, but they're really not "destructive" devices" in the way a grenade is.

    See the full text of section 921:

    In part it says

    "The term “destructive device” shall not include any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; surplus ordnance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of section 4684 (2), 4685, or 4686 of title 10; or any other device which the Attorney General finds is not likely to be used as a weapon, is an antique, or is a rifle which the owner intends to use solely for sporting, recreational or cultural purposes."

    @Josh C, basically, Mythbusters aren't using WMDs, because they aren't using them in a certain manner, regardless of the physical makeup of the device itself.

  47. simon says


    An E12 rocket motor isn't a large motor. It's a small to mid-range motor. I did some searching on how large a motor would have to be in order to contain 4oz or propellant. It is larger than one might expect, because anything later than E30 uses a different propellant which is lighter for the same impulse. One has to go up to an H60 in order to meet the weight requirement. This is still in model rocket territory — just a very large model rocket.

  48. TheGeek says

    Way off topic but yes @OngChotwI there are bigger model rockets. I've seen sized up to an O. Now to put that in perspective for every letter you go up you double the thrust of the motor. So a E normally has between 20-40Ns of thrust, so a O has 20,480-40960Ns. Any thing above a G however is regulated and require special certification.

  49. James Pollock says

    "Are the Mythbusters (for example) guilty of WMD use every time they explode one of their creations?"
    If you pay attention, they usually have someone else handling both the rigging and detonation of the big booms… somebody with specific expertise, and I'm guessing a federal license of some kind.
    The cannon overshot incident wasn't malicious, and therefore not terrorism, even if it did damage a building… just like the big boom in Texas last week (unless there have been developments I'm not aware of.)

  50. whheydt says

    Re: Rob Brown…

    In my household, we'd describe that as "if his tongue were any farther into his cheek, it'd come wiggling out his ear."

    On more general discussion… Should one be surprised if, for running over his brother, he gets charged with hit-and-run and/or vehicular manslaughter? (Of course, the penalties for either of those are likely to be lost in the noise from the rest of the potential penalties…)

  51. David says

    I have a problem seeing how a cigarette lighter would not count as a weapon of mass destruction given those definitions. It is filled with incendiary gas.

  52. Anony Mouse says

    Eh. That definition of WMD isn't shocking or new, really. And it fits perfectly with what WMD stands for: Weapon of Mass Destruction. Strip away all the emotional connotations and a bomb or grenade are certainly weapons of mass destruction. That's rather the point of grenades and bombs and explosives: to cause mass destruction.

    The problem is, everyone thinks WMD is just another way of saying NBC (nuclear, biological, chemical).

  53. Ted K. says

    Re : "armed robbery"

    Something to keep in mind about these incidents – charges can overlap. So carjacking, a form of grand theft auto, can also be referred to as armed robbery. And detonating an IED near an occupied building may be chargeable as arson.

    I think that keeping the charge sheet short will demonstrate a higher level of skill on the part of the prosecution. It's all too easy to come up with a laundry list of charges in these situations.

  54. says

    @Simon – from reading just the parts of the statute that Ken helpfully provided, it appears that to get you the death penalty your model rocket would actually have to kill someone, and jury would have to be persuaded that you "used [it] against" them. So yeah, don't do that.

  55. Nobody says

    The device was clearly constructed as an anti-personnel weapon due to the added shrapnel I've seen reported. While there are many things I would not call a WMD–LiteBrites, for example, in spite of the fact that LiteBrites have terrorized Boston on at least one occasion–I have to think this device should qualify given that it was intended to hurt or kill a large group of random, innocent people.

    The damnable thing about weapons like these are that they are easy to create from common household items and that it only requires one crazy idiot to ruin a lot of lives.

  56. bst says

    What about the MIT Campus Police officer who was shot and killed? Would that not be part of the complaint because it is a state, not federal, crime; or because there is not sufficient evidence yet linking the murder to the brothers; or to leave something to charge later if it is needed; or else what? It seems like a pretty big crime to leave out of the complaint unless there is a good reason to leave it out.

  57. OngChotwI says

    Well.. that clears up a little about how Improvised Explosive Devices (IEDs) are lumped in with long range biological/chemical/nuclear weapons. i.e. news services that describe Watertown as a place where the roads are cleared following a bombing attack.
    Ran across these two sites to help pronounce the names, but notice Dzhokhar was supposedly named after Dzhokhar Dudayev and they pronounced the first name differently on the 2nd site:

  58. Jeff says


    "Is there something I'm missing (I hope!)?"

    Sort of, yes. There's an intent requirement. Different crimes have different intent requirements. Two broad categories are "specific intent" and "general intent".

    With the caveat that I've never actually asserted or defended against a charge in this section so I can't speak from experience, I expect that the requirement that the WMD be "use[d] … against any person or property" would require specific intent. That is, you intended that the WMD would be used against a person or property covered by the statute.

    Accidentally sending a cannon ball rolling through a subdivision wouldn't qualify. However, if they aimed there, all bets are off.

  59. Basil Forthrightly says

    Simon, David, et al

    Ken didn't quote the full thing, though of course he provided the link. If you go read the relevant section, there is also this:

    The term “destructive device” shall not include any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; surplus ordnance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of section 4684 (2), 4685, or 4686 of title 10; or any other device which the Attorney General finds is not likely to be used as a weapon, is an antique, or is a rifle which the owner intends to use solely for sporting, recreational or cultural purposes.

    Buried in that is the word "designed" which is about intent, which is why fertilizer plants aren't WMDs even when they explode like bombs.

  60. Scott says


    Re your first comment, Article III judges are not "inferior Officers." See Morrison v. Olson (1988) (listing certain factors as hallmarks of "inferior Officer" status, such as removability by a higher executive branch official other than the President, and limitations on the officer's duties, jurisdiction, and tenure); see also In Edmond v. United States (1997) (an inferior officers' work is directed and supervised at some level by persons appointed by Presidential nomination with the advice and consent of the Senate).

  61. Josh C says


    Thank you for the answer, and for giving me words to look for.
    I'll go get less ignorant now.

  62. Jay says

    @MattS Article III judges are not "inferior officers" whose appointment can be delegate to the President or other officers without the Senate. There is a whole body of caselaw about what the term means.

  63. Ron says

    I assume the state of Mass. is also going to charge him with at least 4 counts of murder? (the 3 bombing victims and the MIT cop). Just incase for some reason be beats the federal rap?

  64. MattS says


    I would have to read your first cite, but as to In Edmond v. United States, I would contend that the work of the art III judges is supervised by SCOTUS and the SCOTUS justices are appointed by the President with the advice and consent of Congress so your second cite doesn't seem to be much of an obstacle.

  65. orvis barfley says

    i have a concern about people using the word bomber.  is bomber a masculine word?  i mean, like actor and waiter?  if so, i take umbrage at the assumption that a bomb person is necessarily male and must insist on the use of abominations like bomb person or bomb individual in the future.

    bomb hominid would be ok and has a nice ring to it.

  66. jimmythefly says

    Pretty sure it's unisex.

    Like thrower or hotstepper.

    /I'm the lyrical gangster,
    /excuse me mister officer,
    /still love you like that.

  67. corporal lint says

    i have a concern about people using the word bomber. is bomber a masculine word?

    Orvis, I know that you're just being obnoxious and that this isn't a serious question. But to answer anyway, bomber is not gendered. Words in English that are gendered are generally either loanwords that entered the language in a gendered form, usually from French (e.g., actor/actress), or they are words that have a specifically gendered referent (e.g., her or him). Bomb is first attested in English in the late 16th century; bomber was coined around 1910. So, as a thoroughly English word, is without gender. You don't have to worry your precious little head about it.

  68. perlhaqr says

    Dammit. Can't you people keep everything in one place?

    Hah! As if. They can't even use one fucking system.

    I was trying to read the bills and amendments and suchlike and so forth surrounding the recent "gun control legislation" brouhaha (Reading bills? To be informed? What am I, some kinda mad man?) and half the references were to "we're going to change 18 USC 922 (r)" and half of them were of the form "modify Section 101 (a) (5) of the 2007 Dwarfism Protection Act" without actually pointing to the place in the law where the 2007 act ended up.

    Very frustrating.

  69. MattS says


    'Boor' probably derives from 'boar' which is a male pig, so yes, it's a masculine word.

  70. Austin says

    It is sometimes possible to trade the 10 seconds asking a question or making a guess for 10 seconds of finding the answer. Not for matters of law, legal issues, opinion, discussion, or simply identifying your favorite sandwich, of course; but for things like asking if "bomber" is gender-specific or simply guessing at the root of boor, it seems an appropriate use of time. I find Wiktionary to be helpful, but just plain Google works.
    This blawg has one of the better commenter communities I've come across. The authors themselves contribute regularly despite their time constraints and the commenters often provide either experience, insight, or some combination of the two. It's a great place for folks to get access to different experiences, opinions, personalities, and analyses.

  71. orvis barfley says

    austin, my question was tongue-in-cheek.  if this is an inappropriate place to do such (which certainly doesn't appear to be the case) i will desist.  my guess is that my idea of amusement runs counter to the lay of the land here and that i should mosey, so to speak.

    say so, community, and it will be done.

  72. orvis barfley says

    actually, there's enough said here that i'm going to declare it has been said.  this is a great place and lots of folks here have my undying admiration.

    sayonara, buffalo bob.

  73. Allen says

    The laws associated with the usage of energetic materials for criminal purposes are founded on past cases. It really only takes a small amount of an energetic material to cause great damage.

    Though the term energetic material might sound vague, it's not. That's why the intent term is so important. The Brothers Karamazov probably bought all their materials from publicly available sources, but their intent was deadly.

  74. Jack says

    There is a distinction between recognizing an attempt at facetiousness (e.g. the "bomb person" comment) and finding said attempt amusing.

    It would appear, indeed, that rather more commenters here recognized the attempt in question than found it amusing. One commenter might have mistaken the attempt at facetiousness for an attempt at serious argument. There appears, however, to be no overlap between the set of commenters who understood the comment's intent and the set of commenters who found its intent amusing.

    In simpler terms: We knew orvis barfley was "joking" but that doesn't mean anyone thought the "joke" was funny.

  75. says

    The only constitutional authority I find for charging Dzhokar Tsarnaev with a federal offense is for treason, since he is a U.S. citizen, and the act was arguably "making war". Since the offense was committed on state territory, not exclusively federal territory, there is no subjectam jurisdiction for a federal charge of murder or use of "weapons of mass destruction". 18 USC § 2332a is unconstitutional. Some might wish there were constitutional authority for such charges, but it is not in the Constitution as originally understood. All the court precedents extending the Commerce Clause to things that have a substantial effect on commerce are ridiculously wrong.

    The absurdity of making it a crime to possess "destructive devices" is brought out by the "finding" that they include several military-style semi-automatic 12-gauge shotguns.

    Only the Commonwealth of Massachusetts has criminal jurisdiction in this case for charges other than federal treason.

  76. Delvan Neville says

    @Allen: Totally agree, its all about what that energy is going to be used for and how rapidly it is converted from its potential to kinetic and/or heat. Jelly donut and a grenade have about the same chemical potential energy (221 food Calories ~ 985 kJ, 200 grams of TNT ~ 800kJ). Mmmm…jelly grenades…

  77. Arlight says

    To quote a story on Fox News about how the kid shut up with they read him his rights, "The public safety exception to Miranda lasts only 48 hours." I'm just curious about Ken's take on that statement since my reading above was that it became a slippery slope as time progressed but didn't have a set time limit.

  78. annette chapel says

    all you guys want to convict this 19 year old guy..think about how influenced you were at 19 i know i was, if his only family here was his brother of course he was going to do what he said me personally i hope he isn't convicted #freedzhokhartsarneav i think he is innocent and who is to say that tamerlan is really dead

  79. Delvan says

    I hope he is convincted if he is guilty. Whether or not he was conspiring with family or not does not absolve him of his responsibilities. We'd have some serious issues if being 19 meant you could murder people and not be facing any repercussions.