I thought today I would take a closer look at 18 USC 2332a, the federal criminal statute that Mohamed Mohamud is being prosecuted under. The statute states in relevant part:
(a) Offense against a national of the United States or within the United States.--A person who, without lawful authority, uses, threatens, or attempts or conspires to use, a weapon of mass destruction--
(1) against a national of the United States while such national is outside of the United States;
(2) against any person or property within the United States, and
(A) the mail or any facility of interstate or foreign commerce is used in furtherance of the offense;
(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;
(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; or
(4) against any property within the United States that is owned, leased, or used by a foreign government,
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.
There are a two important parts to this statute, so let’s examine them one at a time.
Using, threatening, attempting or conspiring
First, there is the specific act in question, which is using, threatening to use, attempting to use, or conspiring to use a weapon of mass destruction. One of the criticisms that I’ve heard thrown against the government is that Mohamud should have been arrested much earlier instead of letting the sting play out to the end, when he appears to have pressed the button on the cell phone to try to set off the bomb. This criticism often continues by wondering why Mohamud couldn’t have been charged with threatening to use or conspiring to use a WMD.
Conspiracy under federal law requires an agreement to pursue an unlawful objective. The critical requirement is that there be an “agreement” among the conspirators. Because the undercover agents in fact had no intentions of setting off a live explosive in Pioneer Square, there was no agreement between them and Mohamud. In other words, federal law takes a “bilateral” approach, under which undercover agents do not conspire with their targets. See, e.g., U.S. v. Portela, 167 F.3d 687 (1st Cir. 1999); U.S. v. Schmidt, 947 F.2d 362 (9th Cir. 1991).
What about threatening to use a WMD? The easiest “threat” cases involving 18 USC 2332a are those where the defendant sends a direct threat (via letter or email) to the government. See, e.g., U.S. v. Wise, 221 F.3d 140 (5th Cir. 2000) (threatening emails sent to US DOJ, DEA, Treasury, FBI, Customs, and BATF). There’s no allegation here of such a direct threat, but it’s possible that the government could have indicted Mohamud as soon as he allegedly stated a desire to blow up a car bomb in Pioneer Square at the Christmas Tree lighting ceremony.
In U.S. v. Parr, 545 F.3d 491 (5th Cir. 2008), a prison inmate was convicted of threatening to use a WMD when he told his cellmate about detailed plans to blow up the Reuss Federal Plaza in Milwaukee. The inmate discussed not only where he would park the truck bomb, but how he would explain his parking it just outside the federal building (his cover story would be that he was making a delivery). The inmate also talked about how many detonators and how much explosive material he would need. Notably, the inmate was nowhere close to carrying out this plan; though he was due to be released from prison soon, he suggested that it might be 10 years before he carried out the attack. He was convicted of violating 18 USC 2332a and the Fifth Circuit affirmed his conviction on appeal, rejecting his First Amendment defense. According to the appellate court, he had made a “true threat,” and there was no requirement that the government prove that he intended to carry it out; only that he intended for it to be understood as a true threat.
Although Parr appears to support the idea of indicting under 18 USC 2332a based on a non-public threat, I don’t think I’d want to rely on it to justify the Mohamud prosecution based on what’s alleged in the government’s indictment. For some reason, Parr didn’t object to the jury instructions that were given in his case, leading the court to avoid deciding “the scope of the true threat doctrine and the proper definition of true threats.” Given the high quality and relevant experience of Federal Public Defender Steve Wax and his deputies, I wouldn’t bank on their missing that opportunity to challenge a “true threat” indictment.
In addition, to the extent this was a threat, Parr shared it with his cellmate, a third party. The cellmate subsequently reported Parr to the FBI and allowed the FBI to record his conversations with Parr. But the key is that Parr had already repeatedly made this threat to blow up the federal building in Milwaukee before the FBI got involved. In the Mohamud case, however, even the government does not allege that he made any statements to anyone other than the undercover operatives about blowing up Pioneer Square.
Finally, even if Parr provided a reliable precedent (and let’s not forget, it’s a Fifth Circuit case, with the underlying trial originating in Texas, a far more pro-government forum than Portland, Oregon), it would seem especially twisted for those who condemn what the government actually did in the Mohamud case to take the position that the government should pursue a theory of the case that more directly implicates, if not infringes, First Amendment values.
That leaves "using," which doesn't work because Mohamud didn't have a working WMD, and "attempting to use," which is what he was indicted for. Attempting to use a WMD in violation of 18 USC 2332a requires that the government "prove the defendant (1) intended to commit the underlying offense, and (2) took a 'substantial step,' beyond mere preparation, toward committing that crime." U.S. v. Polk, 118 F.3d 286 (5th Cir. 1997). In Polk, the defendant wanted to blow up the IRS building in Austin, Texas. He didn't dispute on appeal that he had the intent to do so, only whether he had taken substantial steps. In particular, he claimed that "he was never in any position to acquire the explosive materials because he had no money." The Fifth Circuit explained that he had indeed taken substantial steps by seeking the assistance of others to help carry out his plan, taking pictures of the IRS buildings, and ordering the materials needed to make the bombs.
Arresting Mohamud at an earlier stage, as some people have suggested should have been done, leaves the government vulnerable to the charge it cannot show that Mohamud intended to carry out the bombing. Thus, even if the acquisition of the bomb parts is a substantial step, that only addresses the second element, not the first. I am pretty certain that if the sting did not progress to the endgame, the very first argument made in defense would be that "he's just a mixed up, 19-year-old kid, and he would never actually have tried to blow up Pioneer Square."
against any person, with interstate commerce effects
Second, 18 USC 2332a requires that the use or attempted use or threatened use of WMD, if against a person or non-federal property, impact interstate commerce. This is not a particularly difficult standard to meet, as the Supreme Court has stated that courts can considered the "aggregated" effect of all instances, real or hypothetical, of the action in question. Thus, in Wickard v. Filburn (1942), a case well-known to first year law students, a farmer was lawfully fined for exceeding his wheat quota by 200+ bushels -- a seemingly insignificant amount by itself, but quite significant in its impact to interstate commerce if every wheat farmer doubled his or her alloted quota.
Moreover, in U.S. v. [Timothy] McVeigh, 940 F. Supp. 1571 (D. Colo. 1996), the trial court concluded:
If the evidence at trial proves the factual allegations of the indictment, the impact on interstate commerce is both obvious and substantial. The use of a truck bomb of sufficient explosive power to destroy an office building, killing and injuring hundreds of its occupants, has a substantial effect on interstate commerce.
Finally, in case you were wondering, weapon of mass destruction is defined as any "destructive device" as defined by 18 USC 921. 18 USC 921, in turn, defines "destructive device" as, in relevant part:
(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;