Ken White from Popehat, a former federal prosecutor, explains:
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).
. . . .
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.”
. . . .
[The destruction of property charge] 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.”
I thought section 844(i) sounded familiar, and I was right. Here’s how the Federal Court of Appeals for the Sixth Circuit described Brett Kimberlin’s criminal history:
After being convicted of the bombings and related offenses, Kimberlin was sentenced to a fifty-year term of imprisonment for manufacturing and possessing a destructive device, and malicious damage by explosives with personal injury in violation of 26 U.S.C. §§ 5861(d) and (f), and 18 U.S.C. §§ 844(f) and (i). He received a concurrent twelve-year sentence for impersonating a federal officer, illegal use of a Department of Defense insignia, and illegal use of the Presidential Seal in violation of 18 U.S.C. §§ 912, 701, and 713, respectively, and a five-year term for receipt of explosives by a convicted felon in violation of 18 U.S.C. § 842(i)(1). Finally, he was given a four-year sentence by the United States District Court for the Southern District of Texas on an earlier, unrelated conviction for conspiracy to distribute marijuana.
Subdivision (i) of section 844 has different penalties depending on whether the bomb caused injury and/or death. Bad luck for Tsarnaev that he killed people. If he had simply maimed a dude, the way his brother’s bomb blew off Jeff Bauman’s legs, or the way one of Brett Kimberlin’s bombs blew off Carl DeLong’s leg, maybe he could have served a few years and then become a lefty political activist who harasses people for a living. As it is, Tsarnaev is potentially looking at the death penalty.