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Dzhokhar Tsarneav Formally Charged

Dzhokar Tsarnaev

Dzhokhar Tsarnaev, the accused Boston Marathon bomber, has been formally charged with violating two Federal statutes that could lead to the death penalty during a short proceeding today in his hospital room:

Federal authorities on Monday charged the surviving suspect in the Boston Marathon bombings with using a “weapon of mass destruction” against people and property, and the White House rejected demands by some congressional Republicans that he be tried before a military tribunal as an “enemy combatant.”

The Justice Department said Dzhokhar A. Tsarnaev, 19, was charged in a criminal complaint unsealed Monday in U.S. District Court for the District of Massachusetts. It said he is “specifically charged with one count of using and conspiring to use a weapon of mass destruction (namely, an improvised explosive device or IED) against persons and property within the United States resulting in death, and one count of malicious destruction of property by means of an explosive device resulting in death.” The department said in a news release that the bombings resulted in the deaths of three people and injuries to more than 200 others.

If convicted, Tsarnaev could face the death penalty, the statement said. It said he had his initial court appearance Monday from his hospital room, where he is being treated for injuries sustained before his capture Friday evening.

White House spokesman Jay Carney said that under U.S. law, American citizens such as Tsarnaev cannot be tried by military commissions.

Carney made the comments after the first victim’s funeral was held in a quiet Boston suburb, and as investigators weighed how and when to file criminal charges against Tsarnaev. The funeral came a week after the bombings reintroduced terror into the lives of ordinary Americans, killing three spectators as they watched the renowned race.

Tsarnaev “will not be treated as an enemy combatant,” Carney said at a White House news briefing. “We will prosecute this terrorist through our civilian system of justice. Under U.S. law, United States citizens cannot be tried in military commissions.” He said that since the Sept. 11, 2001, terrorist attacks, “we have used the federal court system to convict and incarcerate hundreds of terrorists.”

Reading through the affidavit supporting the Criminal Complaint, which I’ve embedded below, it’s clear that the authorities have a virtually complete video record of Tsarnaev and his brother coming on the scene of the Finish Line on Boyleston Street last Monday afternoon just about ten minutes before the bombs went off. They have them walking together, in the photo that we’ve all seen from those that were released on Thursday.  Then, they have them separating, arriving in the areas where the two bombs went off, depositing their knapsacks on the ground, and walking away mere minutes before each explosive went off. The affidavit also reveals that a hat and clothing resembling that which Tsarnaev is seen wearing in the video was found in his college dorm room when authorities executed a search warrant at that location. With regard to Friday’s events they have the brothers carjacking a car, at which point one of them tells the victim that he was the bomber, and setting forth the fact that something resembling one of their crock pot bombs was found in the cars trunk after it was abandoned. Finally, the affidavit recounts Tsarnaev’s capture and the fact that his identification was found on his person.

Tsarnaev is current charged with violating two Federal law. First, he’s charged under 18 USC 2332(a) with Use Of A Weapon Of Mass Destruction, which under Federal law is basically any weapon capable of causing mass casualties. Second, he’s charged under 18 USC 841(i) with Malicious Destruction Of Property Resulting In Death. Both statutes carry the possibility of the death penalty.

Based solely on the affidavit, this seems to be a fairly air-tight case and it almost seems as thought prosecutors will be able to establish nearly all of the elements of the crime from the video evidence alone. We will likely get more detail, and perhaps additional charges, when the U.S. Attorney takes this case to the Grand Jury and Tsarnaev is formally indicted. Additionally, these charges do not preclude the possibility that Tsarnaev will eventually face murder and attempted murder charges in Massachusetts state court as well, much like Timothy McVeigh and Terry Nichols were both tried in both the Federal and State systems for their role in the Oklahoma City Bombing For now, the next Court date in this matter is set for May 31st and Tsarnaev will remain in the hospital in the custody of federal authorities.

Here’s the Criminal Complaint:

United States v. Dzhokar Tsarnaev Criminal Complaint by dmataconis

Update: Here is a transcript of the hearing that took place in Tsarnaev’s hospital room, part of which establishes that he has received his Miranda warning:

United States v. Tsarnaev – Transcript of initial hearing by dmataconis

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Mikey says:

    Looks like the delayed Miranda warning won’t jeopardize a conviction–they could likely convict him without using anything at all that he’s said.

    Did these guys think they’d be somehow able to get away with it? Having run a couple marathons, I can tell you there are few places on Earth with more cameras per square yard than the finish line of one.

    Like or Dislike: Thumb up 4 Thumb down 0

  2. PJ says:

    @Mikey:

    Having run a couple marathons, I can tell you there are few places on Earth with more cameras per square yard than the finish line of one.

    Reminded me about the story about the marathon cheat, Kip Litton. It’s a great read.

    Like or Dislike: Thumb up 2 Thumb down 0

  3. Mikey says:

    @PJ: Wow, that’s just amazing. Thanks for the link to it!

    Like or Dislike: Thumb up 1 Thumb down 0

  4. PD Shaw says:

    This is the first I heard that one of the brothers confessed to the carjacker. The affidavit doesn’t say which brother; I wonder if they’ve had a chance to show pictures to the witness yet.

    “Malicious Destruction Of Property Resulting In Death” seems relatively mild to be a death qualified offense. The other charge seems more appropriate for a death sentence.

    Do radical Islamicists believe that punishment by execution bestows the religious blessing of martyrdom, while a life sentence is a form of humiliation? Zacarias Moussaoui’s attorney argued it does. If true, I think its worth considering using the death penalty to coerce an agreement to life in prison. How else do you deter jihadists?

    Like or Dislike: Thumb up 3 Thumb down 3

  5. Gromitt Gunn says:

    @PD Shaw: I was’t aware that it has been established that he is a jihadist. Merely that he is Muslim.

    Like or Dislike: Thumb up 4 Thumb down 0

  6. Caj says:

    That’s good news. Now let the court do it’s job and justice will prevail in whatever form the jurors decide. Personally I feel the death penalty is what he deserves and not have him in stay jail for God knows how many years either. An eye for an eye. Those killed and maimed deserve nothing less.

    Like or Dislike: Thumb up 1 Thumb down 1

  7. C. Clavin says:

    Two weeks ago this kid was smoking pot in a dorm room.
    Soon he will be put to death.
    Funny how things turn out sometimes.

    Like or Dislike: Thumb up 2 Thumb down 0

  8. CSK says:

    Doug, the Commonwealth of Massachusetts could bring, in addition to murder and attempted murder charges against Tsarnaev, kidnapping or confining and putting in fear charges for the carjacking, both of which happened in Cambridge. And, additionally, if he shot at police officers in Watertown, and attempted to run them down with the Mercedes (though he seems only to have succeeded in killing his own brother) , there could be additional murder and assault or attempted murder charges. The Middlesex County DA’sofffice will have to decide on that, since Cambridge and Watertown are in Middlesex. Boston is Suffolk County. The Suffolk DA probably won’t bother with any charges, since the feds have assumed jurisdiction over what happened in Boston.

    Be interesting if he was charged by the Commonwealth with the murder of his own brother.

    Like or Dislike: Thumb up 0 Thumb down 0

  9. Gromitt Gunn says:

    @Gromitt Gunn: I should add that I have been super busy today, so its entirely possible that he’s admitted there was a religious factor in play that I missed.

    Like or Dislike: Thumb up 0 Thumb down 0

  10. Davebo says:

    @Gromitt Gunn:

    Sadly Muslim = Jihadist yet Christian does not equal Westboro Baptist Church member.

    Odd how that works but it is what it is.

    Like or Dislike: Thumb up 7 Thumb down 2

  11. rudderpedals says:

    @CSK: Be interesting if he was charged by the Commonwealth with the murder of his own brother.

    Does Mass recognize the felony murder doctrine?

    Like or Dislike: Thumb up 0 Thumb down 0

  12. Jeremy R says:

    @Caj:

    Personally I feel the death penalty is what he deserves and not have him in stay jail for God knows how many years either. An eye for an eye. Those killed and maimed deserve nothing less.

    Since you’re appealing to victims suffering, do you feel that the DoJ should consult those victims as to whether or not they’d want the death penalty pursued? I suppose it may not really matter though as my gut feeling is that the DoJ has no choice but to seek it in this case, as the prosecution will be hopelessly politicized.

    Like or Dislike: Thumb up 2 Thumb down 0

  13. PD Shaw says:

    @Gromitt Gunn: It was a terrorist attack (i.e., designed for the horror of the public) by someone (at least the elder brother) identified as a radical Muslim by his Uncle and who likes to post jihadist messages. Normal Muslims do not act like this, which is why the Uncle has to be considered a good judge of norms, but a radical group does.

    Like or Dislike: Thumb up 4 Thumb down 2

  14. Ron Beasley says:

    @Davebo: Right on! In addition Christian does not equal abortion provider murderers.

    Like or Dislike: Thumb up 2 Thumb down 0

  15. CSK says:

    @rudderpedals:

    Yes, the Commonwealth does recognize felony murder. Don’t drive the getaway car at a bank robbery if a guard or teller is shot and killed, because you’ll be charged with murder even if you didn’t pull the trigger. Though you might be able to cop a plea if you rat out your accomplices.

    Like or Dislike: Thumb up 1 Thumb down 0

  16. Peter says:

    I doubt that he’ll end up getting the Big Needle. Life in prison is more likely, unfortunately, given his youth, this may not be as harsh as it sounds – there’s always the chance that 30 or 40 or even 50 years from now, when the memory of his crime has dimmed, he’ll get parole.

    Like or Dislike: Thumb up 0 Thumb down 2

  17. rudderpedals says:

    @CSK: Thanks. It’s the same way in FL. As an orangutan I don’t worry about my accomplices though unless fruit’s involved.

    Like or Dislike: Thumb up 1 Thumb down 0

  18. Jenos Idanian #13 says:

    @Jeremy R: Since you’re appealing to victims suffering, do you feel that the DoJ should consult those victims as to whether or not they’d want the death penalty pursued?

    Absolutely not.

    We prosecute crimes as committed against society, not against individuals. This takes the burden off victims of feeling somehow responsible for the consequences of the trial. If there is no conviction, it’s not their fault; the conviction isn’t their work; and the sentence isn’t their responsibility.

    The victims are often given a chance to make a statement that can influence the sentencing, but they do NOT do any determining on it. This also helps avoid the issue of vengeance/bribes/other undue influence by the criminals or those connected to them.

    Like or Dislike: Thumb up 4 Thumb down 0

  19. John Burgess says:

    @Peter: Federal sentences don’t come with a parole attachment. If it says “30 years,” it’s 30 years. If it’s “Life,” it’s life, except perhaps for humanitarian relief so he could die in a hospital rather than a cell.

    Like or Dislike: Thumb up 1 Thumb down 0

  20. matt bernius says:

    @Jenos Idanian #13:

    We prosecute crimes as committed against society, not against individuals. [...]

    Nicely stated.

    This is also points to the problem with pro-death penalty arguments that are centered about feelings of victims families. While those feelings might be taken into consideration, the fact is that the punishment reflects not the opinions of the victims but the opinions of the society in aggregate.

    Further, if the point of prosecution and punishment is to protect a society, ensuring that the society does not cause itself harm by putting an innocent person to death is as important as punishing the person who commits a crime against society.

    Like or Dislike: Thumb up 1 Thumb down 0

  21. matt bernius says:

    @Peter:

    [t]here’s always the chance that 30 or 40 or even 50 years from now, when the memory of his crime has dimmed, he’ll get parole.

    Given the very low rate of parole granted to criminals who commit sensational crimes, this is a very unlikely scenario. The facts demonstrate that regardless of the progress they’ve made in their rehabilitation, 30/40/50 years after their initial crimes they are still summarily turned down at every parole hearing.

    Like or Dislike: Thumb up 0 Thumb down 0

  22. CSK says:

    @Gromitt Gunn:

    The Associated Pres is now reporting that, according to two federal law enforcement officials, Tarnaev admitted that there was a religious motivation behind the attack.

    Like or Dislike: Thumb up 0 Thumb down 0

  23. matt bernius says:

    @CSK:

    Tarnaev admitted that there was a religious motivation behind the attack.

    Question — does this also make him able to charged for a hate crime?

    Like or Dislike: Thumb up 1 Thumb down 0

  24. Peter says:

    Federal sentences don’t come with a parole attachment. If it says “30 years,” it’s 30 years. If it’s “Life,” it’s life, except perhaps for humanitarian relief so he could die in a hospital rather than a cell.

    That may be case right now, but things can change. For instance, in 2053 Congress might change the law so that people sentenced to life can be paroled after serving 40 years. All of a sudden Baby Bomber is out free and he’s not even 60 years old.

    Given the very low rate of parole granted to criminals who commit sensational crimes, this is a very unlikely scenario. The facts demonstrate that regardless of the progress they’ve made in their rehabilitation, 30/40/50 years after their initial crimes they are still summarily turned down at every parole hearing.

    Attitudes may change in the decades to come.

    Like or Dislike: Thumb up 0 Thumb down 0

  25. matt bernius says:

    @Peter:

    Attitudes may change in the decades to come.

    And monkeys *might* fly out your backside. But chances are neither will.

    Hell, why even bother prosecuting him? It *might* turn out that the Congress of 2053 will pass a law making it legal to bomb sporting events.

    Trying to form policy or make sentencing decisions around what *might* happen in the future is absolutely insane (or the beginnings of a Phillip K. Dick novel).

    Besides, generally speaking, the trend has been — and continues to be — harsher penalties for crimes (with less sentencing flexibility), not shorter sentences.

    Like or Dislike: Thumb up 3 Thumb down 0

  26. Tyrell says:

    There has not been enough time to fully investigate and see if these two were trained and financed by some groups, It is inconceivable that these two did not have help in planning, designing, and carrying out these bombings. How about the financing? Someone would have also helped them in obtaining these materials . What were their next plans? They obviously were planning more. What all happened in Russia?
    All of these questions should be answered before it can be stated that they worked alone.

    Like or Dislike: Thumb up 1 Thumb down 0

  27. Peter says:

    Trying to form policy or make sentencing decisions around what *might* happen in the future is absolutely insane (or the beginnings of a Phillip K. Dick novel).

    There is no policy to be formed or sentencing decisions to be made. The only point is that we have to acknowledge that except in the unlikely event he gets the death penalty, there is a chance that he will be free when still middle-aged.

    As I understand it, the guidelines used in determining whether a death sentence is warranted do not take into account the possibility of early parole due to future law changes.

    Like or Dislike: Thumb up 0 Thumb down 2

  28. Mary G says:

    Completely meaningless nitpick of the day: the cooking appliances used were pressure cookers, not crock pots. Crock pots are not airtight and would not make good bomb containers.

    Like or Dislike: Thumb up 2 Thumb down 0

  29. anjin-san says:

    there is a chance that he will be free when still middle-aged.

    Not really. He will spend the rest of his life somewhere very unpleasant. If he has useful information and he gives it up, he my spend the rest of his life somewhere that it somewhat less unpleasant.

    Like or Dislike: Thumb up 0 Thumb down 0

  30. Ben says:

    As someone who grew up and spent the great majority of my life in Massachusetts, I’m really uncomfortable with the feds going for the death penalty. The citizens of Mass decided quite a long time ago to outlaw the death penalty, and every time it’s been brought up since, it’s been shot down right fast. It feels like the feds are doing an end run around that for political reasons.

    Like or Dislike: Thumb up 4 Thumb down 0

  31. Tyrell says:

    Yes, the federal government does a lot of these “end arounds” concerning the states. We have been experiencing that down here in our state for a long time. The governors need to stand up and stop some of this.

    Like or Dislike: Thumb up 0 Thumb down 0

  32. OzarkHillbilly says:

    @Tyrell:

    It is inconceivable that these two did not have help in planning, designing, and carrying out these bombings. How about the financing? Someone would have also helped them in obtaining these materials .

    How small is your brain that you can not conceive of the limitless possibilities of research on the internet? As for the financing, from what I have read, everything they used could be had for app $10-20 K, hardly an insurmountable sum and all of it could be legally purchased in not too distant states from MA, if not in MA itself. I could do everything they did and I am no financial kingpin of great genius in armaments or the tactical arts.

    Like or Dislike: Thumb up 1 Thumb down 0

  33. OzarkHillbilly says:

    @Ben:

    As someone who grew up and spent the great majority of my life in Massachusetts, I’m really uncomfortable with the feds going for the death penalty.

    Ben, we are called the United States of America not the Somewhat Limited Partnership of MA, AL, NY, VA, MO, MT, CA….(you get the drift) and we long ago settled the question of whether or not Federal law trumps state law (rather decisively, I would say) and I suspect you would have it no other way.

    That said, I am uncomfortable with the death sentence no matter where it is used or by what entity, and the answer to that dilemma is to work for it’s abolition.

    Like or Dislike: Thumb up 3 Thumb down 0

  34. Ben says:

    @OzarkHillbilly:

    Yes, but then again, I’ve never been a fan of the Feds jumping in and taking over jurisdiction over a crime, when it could easily have been settled once and for all with the state crime charges. I can think of at least a dozen state crimes that he could be charged with that would have resulted in several hundred years worth of jail sentence. But the feds always want to throw their weight around, and being able to force a death sentence in there is surely a nice political bonus.

    Like or Dislike: Thumb up 0 Thumb down 0

  35. bandit says:

    @C. Clavin: He and his brother put 4 people to death and maimed many others – so funny

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