Jury Deliberations—Zacarias Moussaoui

The federal jury that is to determine whether Zacarias Moussaoui is eligible for the death penalty has asked US District Court Judge Leonie Brinkema “for a definition of ‘weapons of mass destruction.’”^[1] The request came after hours of deliberations, and Judge Brinkema “told them the term includes airplanes used as missiles.”^[2] This is extremely interesting, and could create a basis for appeal.

One of the three charges facing Mr. Moussaoui is conspiracy to use a weapon of mass destruction.^[3] This charge comes under 18 U.S.C. § 2332a(a), which makes it a crime for a person to use, threaten, or attempt or conspire to use a weapon of mass destruction “against any person or property within the United States, and … the mail or any facility of interstate or foreign commerce is used in furtherance of the offense, [or] such property is used in interstate or foreign commerce or in an activity that affects interstate or foreign commerce.” A weapon of mass destruction is defined as what most people consider a WMD: chemical weapons, biological weapons, nuclear or radiological weapons^[4]—the so-called NBC weapons that were allegedly to be found in Iraq. But the definition of WMD also includes “any destructive device as defined in section 921” of title 18.^[5] A plane used as a missile is not explicitly included in this definition.

Section 921 states that a “destructive device” means:

• any explosive, incendiary, or poison gas--
  • bomb,
  • grenade,
  • rocket having a propellant charge of more than four ounces,
  • missile having an explosive or incendiary charge of more than one-quarter ounce,
  • mine, or
  • device similar to any of those previously described devices.^[6]

A commercial airplane is neither a rocket, nor a missile, because it does not contain propellant charges or explosives as a matter of design. Judge Brinkema may have told the jury that a commercial airplane is a similar device, but an argument could be made that that was a decision for the jury to make, not the judge to just tell them. Furthermore, the term “destructive device” explicitly does not “include any device which is neither designed nor redesigned for use as a weapon.”^[7] A commercial airliner was neither designed nor redesigned for use as a weapon, and as such, if Mr. Moussaoui is found eligible for the death penalty, this jury instruction could be a basis for an appeal.

In related news, “federal prosecutors in Philadelphia have launched a criminal investigation of Transportation Security Administration lawyer Carla J. Martin,” the attorney who nearly destroyed the government’s case when it was discovered that she coached witnesses.^[8]

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[1] Nation Briefs: Moussaoui Jury Counts 9/11 Planes as WMDs, Miami Herald, Mar. 31,2006.
[2] Id.
[3] Id.
[4] 18 U.S.C. § 2332a(c)(2)(B) – (C).
[5] Id. § 2332a(c)(2)(A).
[6] Id. § 921(a)(4)(A). Note: Section 921 also contains other definitions of destructive device, such as sawed-off shotguns and large-caliber rifles, but those definitions are not especially relevant to determining whether an airplane is a missile.
[7] Id. § 921(a)(4).
[8] Michael J. Sniffen, Deliberations Continue in Moussaoui Trial, Associated Press (via ABC News), Mar. 31, 2006.