Patterico's Pontifications


Tsarnaev’s Charges

Filed under: Brett Kimberlin,General — Patterico @ 7:20 am

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.

48 Responses to “Tsarnaev’s Charges”

  1. IS Schmalfeldt going to market “Team Tsarnaev” basball caps?

    E.PWJ (1ea63e)

  2. And instead of attending, he’d be teaching college.

    ukuleledave (c59551)

  3. Wiley and stone cold little punk. I hope there are enough pictures to keep him getting the Malvo treatment.

    SarahW (b0e533)

  4. Seriously, he came back from Dagestan, and they’re telling us, there’s no largeer plot.

    narciso (3fec35)

  5. The main stream media is disappointed that the Boston terrorists were not white but turned out to be radical Muslims. I would like to point out to the MSM if they are really interested in domestic white terrorists, that there are white unrepentant domestic terrorists in our midst, President Obama’s friends Bill Ayers and Bernardine Dohrn or convicted white unrepentant domestic terrorist, Brett Kimberline.

    But, no, they won’t write about them because they are liberals.

    Tanny O'Haley (09cf80)

  6. Seriously, he came back from Dagestan, and they’re telling us, there’s no largeer plot.

    Comment by narciso (3fec35) — 4/23/2013 @ 9:07 am

    I believe that the Obama administration or the MSM would say something like:

    Nothing to see here, move along.

    You know, because Al Queda has been destroyed. Didn’t President Obama kill Osama Bin Laden? Why should we worry about terrorism workplace violence? Just another lone wolf.

    Tanny O'Haley (09cf80)

  7. Dzhokhar Tsarnaev is under 21 and therefore not eligible for a gun license in Massachusetts. He now faces the possibility of a mandatory one year jail term for carrying a firearm without a license.

    Perhaps he can serve that time on federal death row.

    He’s in Big Trouble Now

    Tanny O'Haley (09cf80)

  8. Free Mumia and free Jahar while you’re at it!

    Smartest dude I ever worked with, I’m just guessing IQ 175, last I heard was rumored to have gone to the FBI.

    I know, I know, what do goons need with a handsome, personable genius? Well this guy was entirely self-motivated, Basque possibly, at least from the region under the western Pyrenees.

    Bet he’s at the NSA by now working on facial recognition or telecom data mining. Obviously investigation needs to eliminate the human element. Subtards cannot mine an flight manifest and catch a terrorist unless the name is spelled correctly.

    “As of December 31, 2009, the FBI had a total of 33,852 employees. That includes 13,412 special agents and 20,420 support professionals, such as intelligence analysts, language specialists, scientists, information technology specialists, and other professionals.[56]”

    Budget $8 Billion.

    gary gulrud (dd7d4e)

  9. Well, here’s the problem, gary, what happens when the match indicates what you don’t want to find.

    narciso (3fec35)

  10. 10. Well, duh. Like I said once, I’m only bright for a Norwegian.

    gary gulrud (dd7d4e)

  11. They seemed pretty irritated with me when I reported a Muslim coworker who said after 9/11:

    Jews are pigs and monkeys and drink the blood of Muslim children. America deserves what it gets because it sticks its nose in everyone’s business.

    Just another well educated Muslim who hates the US.

    Tanny O'Haley (09cf80)

  12. narciso, Comment 7. I see the MSNBC header now, “Cambridge, Breeding Ground for Terrorism”.

    nk (875f57)

  13. Bad luck for Tsarnaev that he killed people.

    Do we know that he did? Do anyone know where the 3 people killed were standing. Were any of them killed by the second bomb?

    (I see Point 7 in the affidavit says each bomb killed at least one person.

    But that question is really irrelevant.

    Dzhokhar Tsarnaev is not responsible only for the bomb he personally put down around 5 minutes – maybe even less – before it exploded. (Point 13)

    For the first count it is only necesary to have conspired or attempted to use a weapon of mass destruction, and it is not even necessary for that weapon of mass destruction to have killed anyone.

    On the second count, the damage to any buildings doesn’t have to have been too much, but it must have killed somebody.

    You could even question whether he is even covered by United States Code section 844(i) at all since he exploded it in the street and there was no intention to harm any buildings that anyone can tell, and any damage to any buildings was unintentional and incidental. It doesn’t fit the facts. It’s the first count that fits the facts. There was indeed maybe some significant property damage, but only from the bomb Tamerlan set off, and even that was mostly broken glass.

    You can wonder what the FBI is doing charging him with it. So they can bring in evidence that some proeperty damage was caused? Or is this something to be dropped in a plea bargain?

    Sammy Finkelman (d22d64)

  14. Is he going to be indicted by the Commonwealth of Massachusetts?

    Seems like he should be tried on three counts of murder and something like 100 counts of attempted murder, at the very least.

    Steven Den Beste (99cfa1)

  15. Sammy, Sammy, Sammy, you are precious. The rules of felony murder and accomplice liability are pretty well-established.

    nk (875f57)

  16. In a world where Gosnell could possibly be acquitted, what difference does it make?

    narciso (3fec35)

  17. ...maybe he could have served a few years

    Lets not forget about the MIT cop that was killed, the carjacking/kidnapping and the Watertown cop that was shot. Even if nobody was killed at the marathon I would think those charges could put him away for a very log time. But I do like how you worked in the jab at BK.

    Mattsky (d6e293)

  18. Comment by nk (875f57) — 4/23/2013 @ 10:03 am

    The rules of felony murder and accomplice liability are pretty well-established.

    Yes, which is why I wondered what the destruction of property charge was doing in there.

    Anyway, the affidavit says both bombs killed. I think it is 8 year old boy, Martin Richard, who was killed by the second bomb.

    By the way, I am not sure that’s right what Patterico says above that Title 18, United States Code, section 844(i) requires damage or destruction to a building.

    Now there was property damage from the second bomb – a number of barricades were damaged, plus clothing people were wearing and other possessions they might have had. And the city of Boston had its sidewalk damaged, and there may be some repairs needed to the street.

    The affidavit doesn’t mention any damage to a building or buildings, just “public and private property” and it specifies “streets, sidewalks, barricades, and proerty owned by people and businesses in the locations weher the explosions occurred.”

    The affidavit also goes into the bomb’s impact on interstate and foreign commerce, probably for legal reasons.

    Sammy Finkelman (d22d64)

  19. Actually the affidavit seems to cover both bombs when it comes to property destruction. And it still only says that (besides killing at least one person, and maiming, burning and wounding scores of others) the bombs damaged “public and private property including the streets, sidewalks, barricades, and property owned by people and businesses in the locations where the explosions occurred.”

    Nothing about any damage to buildings. Not even broken glass.

    Sammy Finkelman (d22d64)

  20. “Property owned by businesses” includes things like buildings, furniture, glass, etc.

    DRJ (a83b8b)

  21. No mention of the Lord & Taylor video camera.

    The affidavit also covers crimes the night if April 18 starting from the carjacking. The murder of the MIT policeman is not mentioned at all.

    Sammy Finkelman (d22d64)

  22. Popehat’s “Thoughts On The Tsarnaev Complaint:” post says that the Title 18, United States Code, section 844(i) charge (available at

    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

    So he doesn’t have to have “damaged or destroyed a building” like Patterico said.

    He could get the death penalty for just transporting the bomb, knowing what it was intended to be used for, if in fact it caused anybody’s death.

    Sammy Finkelman (d22d64)

  23. Not even a completed bomb. Just the explosives. (knowing “that it will be used to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property” “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”

    Sammy Finkelman (d22d64)

  24. Massachusetts does not have the death penalty. (A few years ago, then-Governor Romney attempted to get it through the Legislature, but was unsuccessful.)

    “The affidavit also covers crimes the night if April 18 starting from the carjacking. The murder of the MIT policeman is not mentioned at all.”

    That’s because there’s probably no federal jurisdiction over that killing, and the goal of all of this might be to get a heavier sentence (i.e. capital punishment) than he would get in the Commonwealth’s system.

    bridget (84c06f)

  25. I look for him to make a bid for the Mass. senate.
    At the minimum, he will be an Ivy league english professor.

    mg (31009b)

  26. Three loosely-related thoughts/questions …

    1) If the two brothers were the only ones involved, can that be a conspiracy ? (I thought a conspiracy required 3 or more people)

    2) Tanny O’Haley #5 – ummmm aren’t the Tsarnaevs Caucasian (and white) ? The MSM got their wish, it seems …

    3) I find it interesting that the Obama Administration are proving that Saddam Hussein had weapons of mass destruction – since Iraq had explosives, pressure cookers, and shrapnel sources … ironic, ain’t it ?

    Alasdair (e7cb73)

  27. Query from a monotonic dweeb: How does one possess charisma when clearly blind, deaf, dumb and schtoopid?

    72 virgins in the bush ain’t paying off, sucka.

    gary gulrud (dd7d4e)

  28. Alasdair,

    Federal conspiracy law requires “an agreement of two or more persons to
    engage in some form of prohibited misconduct,” not three.

    DRJ (a83b8b)

  29. I think all state conspiracy laws provide the same but I haven’t reviewed each one so I’m not sure. Massachusetts’s conspiracy law does, too.

    DRJ (a83b8b)

  30. Well, if suspect #1’s name was misspelled as he returned to the US from terrorist training camp, and suspect #2 suffered gunshot wounds prior to receiving his constitutional right to at least one phone call, then the fact he was naturalized before being hospitalized clearly requires Massachusetts authorities to inform the Saudi student scheduled for deportation of his Miranda rights at least 24 hours before Michelle Obama comes calling.

    It’s not just the law, it’s the polite thing to do.

    ropelight (01f6b5)

  31. narciso wrote:

    Seriously, he came back from Dagestan, and they’re telling us, there’s no largeer plot.

    Major Nidal Hasan was in communication with Anwar al-Awlaki, who was considered dangerous enough that President Obama ordered his death via drone, yet as far as the authorities are concerned, there was no larger plot and it was all just an unfortunate case of “workplace violence.” You shouldn’t be surprised that there is no larger plot seen by those who don’t want to look.

    Had the bombers been the Timothy McVeigh types that so many of our friends on the left hoped would be the case, you can bet your bottom euro that there would be all sorts of wider plots seen, raging among every conservative and patriotic group known.

    The very realistic Dana (3e4784)

  32. Latest news is that the older brother was alive when the younger brother ran over him. Another murder charge?

    bridget (84c06f)

  33. …maybe he could have served a few years and then become a lefty political activist who harasses people for a living.

    Or a college professor.


    Patricia (be0117)

  34. 2) Tanny O’Haley #5 – ummmm aren’t the Tsarnaevs Caucasian (and white) ? The MSM got their wish, it seems …

    Comment by Alasdair (e7cb73) — 4/23/2013 @ 11:56 am

    Maybe they were from the Caucasians, but not the kind of Caucasian the MSM wanted the bomber to be. The MSM wanted a white anglosaxon male.

    Tanny O'Haley (09cf80)

  35. From the Author’s Note to the book “Let Our Fame be Great” by Oliver Bulloughs (Basic Books 2010) – I’ve been reading a couple of books trying to increase my understanding because I never got the picture clear of the Chechnyan and other wars, even really that there two of them – this one has a lot of background about the various deportations and other things – I should mention what I thought or knew before )

    From the Author’s Note:

    “…I apologize that throughout I have used the word ‘Caucasus’ as a rather clunky adjective as well as a noun: as in `Caucasus peoples’; Caucasus wars’; `Caucasus cultures’; `Caucasus languages’. That at least is not my fault. I blame the German eighteenth-century racist Christoph Meiners, who gave his anthropologist colleague Johann Friedrich Blumenbach the idea to randomly assign the origin of the `white’ race to the south Caucasus.

    To this day, the word `Caucasian’ remains a racial category and is thus not available to describe things and people actually from the Caucasus, which is extremely annoying.

    I think Bullough is wrong. You can very well use the word Caucasian’ to describe things and people from the Caucasus, just like the word `Indian’ means both American Indians and Indians from India.

    For that matter `American” can have two meanings: just the United States of America, or all of the Western Hemisphere.

    In fact those two are worse.

    ‘Caucasian’ as a racial category is a word not used in normal speech, except by policemen and when somebody means Caucasian as just from the Caucasus it’s pretty clear.

    Sammy Finkelman (d22d64)

  36. You know, I think Dzhokhar Tsarnaev was living in two worlds.

    Sammy Finkelman (d22d64)

  37. That Author’s note also says that some separatists insist on calling the capital of Chechnya: Dzhokhar and not Grozny (which is the Russian name)

    Is that named after Dudayev?

    Dzh indicates that the word has been transliterated into English through Russian. It would be “j” if transliterated through Arabic (as were 19th century leaders of Chechnya and dagestan

    Sammy Finkelman (d22d64)

  38. Grozny, means ‘Fortress’ an outpost founded by General Yermolov in 1818, which was nearly destroyed through the course of the Chechen Wars

    narciso (3fec35)

  39. “Intent” to destroy the buildings or property not an element. Only requirement is that damage or destruction be “malicious”. That is going to be inferred from the nature of the device used.

    “Interstate or foreign commerce” nexus is the basis for federal jurisdiction.

    shipwreckedcrew (4ae072)

  40. Tanny O’Haley #35 – Thanks be to The Lady that I am Scots and not sassenach, then !

    Do you remember why sassenachs dinnae hae the reputation for blowing up cars ?

    ‘Tis because they dinnae like the way the exhaust pipe burns their lips !

    Alasdair (867c8a)

  41. 31. I am totally open to the ideer Cyrillic maps to English one letter combo to one across 11 timezones and umpteen tribes and dialects.

    FBI has to have some holdovers from the Cold War that learned their Russian in the Ivy League. They’d know everything about how ignorant we pig farmers are in fly-over Amerikkka.

    gary gulrud (dd7d4e)

  42. 42. This ‘woman’ is in charge of your security, Amerikkka.

    Do you wonder whether Dog thinks poorly of you Amerikkka, that is, when he thinks of you at all, specifically, while wiping?

    gary gulrud (dd7d4e)

  43. Give them more money:

    The database of ‘potential’ terrorists runs to 500K, including redundant aliases and spellings. Just 5% are in country.

    But the problem is just too vast to track 25K withing our borders, along with all the Sauds whose visas are up 500% since 9/11.

    BTW, the FBI is also tasked to prevent white collar crime. John Corzines are too numerous to track as well, I suppose.

    gary gulrud (dd7d4e)

  44. A girl who was at the New Bedford place where two of Dzhokhar’s friends were arrested and where Dzhokhar slept Monday and Tuesday night last week, was driven away in a car with diplomatioc license plates (New York Daily News, yesterday)

    Sammy Finkelman (d22d64)

  45. 33.Latest news is that the older brother was alive when the younger brother ran over him. Another murder charge?

    It doesn’t matter whether he was or not. It doesn’t matter whether the car even hit him. The younger brother can be charged with “Felony Murder” for the death of his brother.

    Steven Den Beste (99cfa1)

  46. The two friends from new Bedford were with Dzhokhar Tsarnaev in Times Square in April 2012.

    That might be what the reference to going to party was about. Dzhokhar mentioned that on Saturday. On Sunday he told of the idea of blowing up bombs there. The carjack victim had made out the word “Manhattan” they talked in front of him in a foreign langauge.

    Dzhokhar was also in New York in November also. they are trying to find ouit where he slept etc.

    Dzhokhar was definitely a small scale marijuana dealer. Students told people they bought some from him.

    They don’t know about Tamerlan, if he dealt in marijuana although there is the boxing pal who was killed with marijuana dumped on his body.

    Sammy Finkelman (d22d64)

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