No. C15-1359-1
IN THE
October Term, 2015

EMMALINE BORNE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

On Writ of Certiorari to the
United States Court of Appeals
for the Fourteenth Circuit
BRIEF FOR PETITIONER
Team No. 13
Counsel for Petitioner
November 23, 2015
QUESTIONS PRESENTED
I.
Whether Ms. Borne may be charged under 26 U.S.C. § 5845(f)(3) for allegedly
making an explosive device by designing and fabricating firearm parts on a 3D
printer when the Government did not utilize the appropriate standard, and the
statute violates Ms. Borne’s constitutional rights under the Second and Fifth
Amendment.
II.
Whether Ms. Borne may be convicted under 18 U.S.C. § 2339B for allegedly
making plans to demonstrate a potentially dangerous computer code to a
known foreign terrorist organization when Ms. Borne engaged in
constitutionally protected, content-based speech.
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED .......................................................................................... ii
TABLE OF CONTENTS ............................................................................................... iii
TABLE OF AUTHORITIES .......................................................................................... v
STATEMENT OF JURISDICTION .............................................................................. 1
OPINIONS BELOW ...................................................................................................... 1
CONSTITUTIONAL PROVISIONS.............................................................................. 1
STATUTORY PROVISIONS ......................................................................................... 1
STATEMENT OF THE CASE....................................................................................... 2
I.
Statement of the Facts ........................................................................................ 2
II.
Procedural History .............................................................................................. 5
STANDARD OF REVIEW ............................................................................................. 6
SUMMARY OF THE ARGUMENT .............................................................................. 6
ARGUMENT .................................................................................................................. 8
I.
Ms. Borne cannot be charged under 26 U.S.C. § 5845(f)(3) for making an
explosive device by allegedly designing and fabricating firearm parts on a 3D
printer when the Government failed to establish sufficient evidence, did not
utilize the appropriate standard, and violated Ms. Borne’s constitutional
rights.................................................................................................................... 8
A.
The court applied the incorrect standard for determining intent, and
under the appropriate standard, Ms. Borne lacks the requisite intent
to support a conviction. ............................................................................ 9
B.
A conviction under 26 U.S.C. § 5845(f)(3) implicates Ms. Borne’s
Second Amendment rights to home-manufacture firearms. ................ 16
iii
C.
II.
The Government’s arbitrary appropriation of the statute and the
statute’s vague language violates Ms. Borne’s due process rights under
the Fifth Amendment. ............................................................................ 18
A conviction under 18 U.S.C. § 2339B for planning to show and demonstrate
a potentially dangerous computer code to a known foreign terrorist
organization is unfounded because it violates Ms. Borne’s constitutionally
protected rights and is insufficiently supported by evidence. ......................... 20
A.
The Government cannot prevail in either a strict scrutiny or
intermediate scrutiny analysis when Ms. Borne’s content-based speech
is protected under the First Amendment, and the Government has
failed to establish such censorship as a compelling governmental
interest. ................................................................................................... 21
1.
Speech promoting peaceful activities cannot be prohibited simply
because the speaker exhibits alleged terrorist sympathies or such
sympathies may inadvertently yield an unintended consequence. 22
2.
The application of intermediate scrutiny also fails. ................... 25
B.
The Government violated Ms. Borne’s right of Free Association under
the First Amendment by imposing a blanket prohibition on speech
with persons having legal and alleged illegal aims. ............................. 26
C.
The Government failed to provide sufficient evidence to show that Ms.
Borne knowingly, attempted, or conspired to materially support a
known foreign terrorist organization. ................................................... 30
CONCLUSION............................................................................................................. 33
CERTIFICATE OF SERVICE ..................................................................................... 34
APPENDICES
APPENDIX A: U.S. Const. amend. I .............................................................. A-1
APPENDIX B: U.S. Const. amend. II ............................................................ A-2
APPENDIX C: U.S. Const. amend. V ............................................................. A-3
APPENDIX D: 26 U.S.C. § 5845..................................................................... A-4
APPENDIX E: 18 U.S.C. § 2339B .................................................................. A-7
iv
TABLE OF AUTHORITIES
Cases
Ashcroft v. Free Speech Coalition,
535 U.S. 234 (2002) ........................................................................................... 25
Bartnicki v. Vopper,
532 U.S. 514 (2001) ........................................................................................... 21
Bond v. Floyd,
385 U.S. 116 (1966) ........................................................................................... 23
Brandenburg v. Ohio,
395 U.S. 444 (1969) ................................................................................... passim
City of Chi. v. Morales,
527 U.S. 41 (1999) ............................................................................................. 18
Cohen v. California,
403 U.S. 15 (1971) ............................................................................................. 21
Cosby v. Jones,
682 F.2d 1373 (11th Cir. 1982) ......................................................................... 15
Cox Broad. Corp. v. Cohn,
420 U.S. 469 (1975) ........................................................................................... 21
Dallas v. Stanglin,
490 U.S. 19 (1989) ............................................................................................ 26
Dawson v. Delaware,
503 U.S. 159 (1992) ........................................................................................... 26
District of Columbia v. Heller,
544 U.S. 570 (2008) ..................................................................................... 16, 17
FCC v. Pacifica Found.,
438 U.S. 726 (1978) ........................................................................................... 21
Int’l Bus. Machs. Corp. v. United States,
201 F.3d 1367 (Fed. Cir. 2000) ........................................................................... 9
Keyishian v. Bd. of Regents of the Univ. of the State of New York,
385 U.S. 589 (1967) ........................................................................................... 28
v
TABLE OF AUTHORITIES (cont'd)
Kolender v. Lawson,
461 U.S. 352 (1983) ..................................................................................... 18, 19
Lamont v. Postmaster Gen.,
381 U.S. 301 (1965) ........................................................................................... 23
Landreth Timber Co. v. Landreth,
471 U.S. 681 (1985) ......................................................................................... 8, 9
Noto v. United States,
367 U.S. 290 (1961) ..................................................................................... 28, 29
Robinson v. Shell Oil Co.,
519 U.S. 337 (1997) ............................................................................................. 9
Sable Commc’ns of Cal., Inc. v. FCC,
492 U.S. 115 (1989) ........................................................................................... 22
Scales v. United States,
367 U.S. 203 (1961) ................................................................................... passim
Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd.,
502 U.S. 105 (1991) ........................................................................................... 22
Smith v. Goguen,
415 U.S. 566 (1974) ........................................................................................... 18
Staples v. United States,
511 U.S. 600 (1994) ........................................................................................... 15
Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622 (1994) ........................................................................................... 26
United States v. Al Kassar,
660 F.3d 108 (2d Cir. 2011) .............................................................................. 30
United States v. Copus,
93 F.3d 269 (7th Cir. 1996) ............................................................................... 14
United States v. Farhane,
634 F.3d 127 (2d Cir. 2011) .............................................................................. 32
vi
TABLE OF AUTHORITIES (cont'd)
United States v. Fleischli,
305 F.3d 643 (7th Cir. 2002) ............................................................................. 13
United States v. Hammond,
371 F.3d 776 (11th Cir. 2004) ........................................................................... 10
United States v. Johnson,
152 F.3d 618 (7th Cir. 1998) ....................................................................... 12, 14
United States v. Lussier,
128 F.3d 1312 (9th Cir. 1997) ........................................................................... 12
United States v. Mehanna,
735 F.3d 32 (1st Cir. 2013) ............................................................................... 17
United States v. Miller,
307 U.S. 174 (1939) ........................................................................................... 17
United States v. Morningstar,
456 F.2d 278 (4th Cir. 1972) ............................................................................. 11
United States v. O’Brien,
391 U.S. 367 (1968) ........................................................................................... 25
United States v. Panzero,
225 F.3d 660 (6th Cir. 2000) ............................................................................. 11
United States v. Peterson,
475 F.2d 806 (9th Cir. 1973) ............................................................................. 11
United States v. Playboy Entm’t Grp., Inc.,
529 U.S. 803 (2000) ........................................................................................... 22
United States v. Posnjak,
457 F.2d 1110 (2d Cir. 1972) ...................................................................... 11, 19
United States v. Price,
877 F.2d 334 (5th Cir. 1989) ............................................................................. 14
United States v. Reindeau,
947 F.2d 32 (2d Cir. 1991) ................................................................................ 14
vii
TABLE OF AUTHORITIES (cont'd)
United States v. Robel,
389 U.S. 258 (1967) ..................................................................................... 25, 29
United States v. Saunders,
166 F.3d 907 (7th Cir. 1999) ............................................................................. 14
United States v. Stevens,
559 U.S. 460 (2010) ..................................................................................... 22, 23
United States v. Tankersley,
492 F.2d 962 (7th Cir. 1974) ............................................................................. 12
United States v. Vest,
448 F. Supp. 2d 1002 (S.D. Ill. 2006)................................................................ 18
Constitutional Provisions
U.S. Const. amend. I ............................................................................................ passim
U.S. Const. amend. II. ......................................................................................... passim
U.S. Const. amend. V............................................................................................. 19, 20
Statutes
8 U.S.C. § 1182 ............................................................................................................. 22
8 U.S.C. § 1189 ............................................................................................................. 22
18 U.S.C. § 2339B ................................................................................................ passim
26 U.S.C. § 5845 ................................................................................................... passim
28 U.S.C. § 1257(1) ........................................................................................................ 1
Other Authorities
Alan Feuer, Cody Wilson, Who Posted Gun Instructions Online, Sues State
Department, N.Y. Times (May 6, 2015), available at http://www.nytimes.com/
2015/05/07/us/cody-wilson-who-posted-gun-instructions-online-sues-statedepartment.html ............................................................................................... 24
viii
TABLE OF AUTHORITIES (cont'd)
Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF), 3-D Printing Technology
of Firearms, https://www.atf.gov/qa-category/3-d-printing-technology-firearms
(last visited Nov. 23, 2015) ............................................................................... 17
Geoffrey R. Stone, Perilous Times: Free Speech in Wartime, from the Sedition Act of
1798 to the War on Terrorism (2004) ......................................................... 27, 31
ix
STATEMENT OF JURISDICTION
The United States Court of Appeals for the Fourteenth Circuit entered its
judgment on October 1, 2015. The Supreme Court of the United States properly
exercised its jurisdiction and granted certiorari. Jurisdiction is proper pursuant to 28
U.S.C. § 1257(1).
OPINIONS BELOW
The decision and order of the United States Central District of New Tejas is
unreported and is not set out in the record. The opinion of the United States Court of
Appeals for the Fourteenth Circuit is unreported and is set out in the record. R. at 2–
27.
CONSTITUTIONAL PROVISIONS
The First, Second, and Fifth Amendments to the United States Constitution
are relevant to this case and are reproduced in Appendix A, Appendix B, and
Appendix C, respectively.
STATUTORY PROVISIONS
Statutes 26 U.S.C. § 5845 and 18 U.S.C. § 2339B are relevant to this case and
have been provided in Appendix D and Appendix E, respectively.
1
STATEMENT OF THE CASE
I.
Statement of the Facts
Emmaline Borne is a bright 17-year-old with a passion for science and
technology from Harrisburg, New Tejas. R. at 2. Responding to encouragement from
her then-high school physics teacher, Mrs. Adalida Ascot, Ms. Borne applied for a precollege study abroad program in Azran on November 21, 2011. R. at 2, 4. In February
2012, Ms. Borne and a classmate, Fiona Triton, were accepted into the prestigious
program. R. at 4. Initially strangers, the two girls became close friends following a
joint meeting with Mrs. Ascot to discuss the program. R. at 2.
Mrs. Ascot took an active, specialized interest in Ms. Borne, providing
computer programing tutoring lessons after school for the entirety of Ms. Borne’s
senior year. R. at 3–4. An avid gamer, Ms. Borne aspired to learn computer
programming so that she could one day develop her own computer game. R. at 3. Ms.
Borne’s parents were supportive of their daughter’s close relationship with Mrs.
Ascot, a woman they held in high regard as a positive mentor and role model for their
daughter. R. at 4.
On April 21, 2012, two months after the girls were accepted into the study
abroad program, Ms. Borne was at Ms. Triton’s home for a sleepover when she came
across a 3D printer belonging to Ms. Triton’s father, Hershel Triton. R. at 6–7. Ms.
Borne was intrigued and struck up a conversation with Mr. Triton, who was
experiencing software difficulties with the printer program. R. at 7. Ms. Borne offered
to help Mr. Triton. R. at 7. She quickly determined the source of the software error
2
but was unable to find a solution. R. at 7.
Ms. Borne sought assistance from Mrs. Ascot on April 26, 2012, regarding the
coding error. R. at 7. It was then, during conversations with Mrs. Ascot, that Ms.
Borne began inquiring about Dixie Millions, a notorious hacktivist organization
credited with hacking the CIA, FBI, Interpol, and foreign banks—among others. R.
at 7–8. Ms. Borne asked Mrs. Ascot for her opinion regarding the recent actions of
Dixie Millions and its most notorious member, Clive Allen. R. at 8. Mr. Allen, a former
National Security Agency (NSA) consultant and expert hacker, illegally released
millions of stolen documents on November 22, 2011, and disappeared. R. at 8. Mr.
Allen resurfaced on March 20, 2012, via a video recording. R. at 4–5. In the video, Mr.
Allen stated he had retired in Azran, where he had been granted asylum. R. at 5.
In conversations with Ms. Borne, Mrs. Ascot pressed upon the differences
between “Black Hat Hackers” and “White Hat Hackers,” the latter which, according
to Mrs. Ascot, serve a legitimate purpose. R. at 8. Ms. Borne believed Mrs. Ascot
admired Mr. Allen, and seeking the approval of her mentor, she sought to “become a
force for good in the universe” as a “White Hat Hacker.” R. at 11. Using information
found online, Ms. Borne believed she knew Mr. Allen’s whereabouts and hoped to
meet him in Azran. R. at 11–12. Ms. Borne entered her partisan plans to meet Mr.
Allen on June 5, 2012, into her cell phone, labeling the entry, “Meet Clive Allen at
Cafe.” R. at 12.
On May 1, 2012, Mrs. Ascot gave Ms. Borne the solution to the software error;
once fixed, the 3D machine could print a perfect curve. R. at 8–9. Two days later, Mr.
3
Triton found 3D printing handgun design plans on the internet. R. at 8–9. Mr. Triton
was a former chemical engineer for a major American weapons manufacturer. R. at
9. Mr. Triton believed he could retire off the profits of a “plastic filament [design]
flexible enough to pass through the printer but resilient enough to withstand . . . the
intense heat generated by the discharge of multiple bullets.” R. at 7, 9. Mr. Triton
downloaded the publically-available 3D printer handgun plans and saved them onto
a gold USB drive. R. at 9.
Using the standard plastic filament commercially available for 3D printers,
Ms. Borne and Mr. Triton printed out a singular “perfect cylinder”—a twelve-hour
long process 1—on May 5, 2012. R. at 9. The finished product resembled a “trophy” in
design and spirit. R. at 9. Mr. Triton spent the remainder of May working on a
formula for a stronger plastic filament with his daughter, to no avail. R. at 10–11.
The two girls began packing for their trip on June 3, 2012. R. at 12. Mrs. Ascot
advised Ms. Borne and Ms. Triton to “bring any project they were currently working
on for their . . . professors to review.” R. at 9. Ms. Triton—without her father’s
permission or knowledge—downloaded the plastic filament formula onto her USB
drive to take with her to Azran. R. at 11. Inside a duffle bag customarily used for
camping, Ms. Borne packed her clothes, toiletries, the plastic cylinder trophy, and a
purple USB drive containing the curve code. R. at 12. Ms. Borne, a teenage girl, also
packed a can of hairspray in her toiletries bag. R. at 13. Unbeknownst to Ms. Borne,
the duffle bag contained a small pack of matches inside a waterproof pouch. R. at 12.
1
The 3D printing process occurs in layers, beginning with a flat layer of plastic. R. at 10. The 3D
model adheres to and is stabilized by the plastic base layer. R. at 10.
4
En route to the airport, Mr. Triton was pulled over for a minor traffic infraction
and arrested after a routine search yielded an outstanding warrant. R. at 13. While
waiting for Mrs. Triton to arrive to take the girls to the airport, Ms. Borne’s cell phone
chimed an alert, and “Meet Clive Allen at Cafe” flashed on her phone screen. R. at 15.
The arresting officer was in close proximity to Ms. Borne and reportedly witnessed
the alert. R. at 15. Both girls were immediately Mirandized and “arrested on
suspicion of aiding and abetting a known fugitive.” R. at 15. Following the execution
of a warrant, the responding officers found three USB drives in the vehicle: (1) Mr.
Triton’s gold USB drive filled with songs he had planned to gift to the girls, which
also contained his plans for the 3D printed gun, (2) Ms. Triton’s USB containing the
filament formula, and (3) a copy of the curve code. R. at 16.
After receiving news of the girls’ arrests, Mrs. Ascot quit her job and fled. R. at
16. Mrs. Ascot is believed to be a founding member of Dixie Millions—although she
never revealed her identity to either Ms. Borne or Ms. Triton. R. at 17.
II.
Procedural History
Ms. Borne was convicted in the United States District Court for the Central
District of New Tejas under 26 U.S.C. § 5845(f)(3) and sentenced to twelve months in
prison. R. at 18. Ms. Borne was also convicted under 18 U.S.C. § 2339B and sentenced
to fifteen years in prison. R. at 18. The sentences were to be served concurrently. R.
at 18. At trial, the Government offered evidence of Ms. Borne’s internet history, social
media posts, and aspirations to meet hacker groups and convince the groups not to
“exploit bank, financial, and government security flaws.” R. at 17–18. In furtherance
5
of a conviction, the Government sought to solely credit Ms. Borne for Mrs. Ascot’s
computer code, Ms. Triton’s filament formula, and Mr. Triton’s 3D printing gun plans.
R. at 18. The Government then argued Ms. Borne alternatively attempted to build an
explosive device using common household items found inside the vehicle at the time
of the arrest. R. at 18.
Ms. Borne timely appealed her conviction to the United States Court of
Appeals for the Fourteenth Circuit, arguing the correct standard to convict under 26
U.S.C. § 5845(f)(3) was not applied, the items found in her possession were not in the
stream of commerce, and 18 U.S.C. § 2339B violated her freedom of speech and her
right of association. R. at 18–24. The appellate court affirmed. R. at. 24.
STANDARD OF REVIEW
Two standards of review govern this appeal. Challenges to the constitutionality
of a statute are reviewed de novo. Pierce v. Underwood, 487 U.S. 552 (1988). Inquires
into the sufficiency of the government’s evidence produced at trial is a question of
law, also subject to de novo review. Id. at 558. Whereas, an issue raised for the first
time on appeal is reviewed for plain error. Id.
SUMMARY OF THE ARGUMENT
This case implicates the fundamental rights of citizens to speak peaceably
without fear of arbitrary censorship, to be notified of actions that may incite criminal
liability, and to associate freely with ideologically similar individuals. Although the
Government’s concerns that technological advancements could proliferate efforts by
6
foreign terrorist organizations are not unfounded, the Government’s ascription of
those illegal efforts to Ms. Emmaline Borne are without merit.
Ms. Borne was charged under 26 U.S.C. § 5845(f)(3) for allegedly making an
explosive device by designing and fabricating firearm parts on a 3D printer, despite
the presence of contrary evidence: Mr. Triton—not Ms. Borne—obtained the 3D
printing firearm plans; Mr. Triton and Ms. Triton—not Ms. Borne—experimented on
the filament formula used to create a plastic strong enough to withhold the heat of a
firearm; And, Mrs. Ascot—not Ms. Borne—created the curve code used to remedy the
3D printer software error. Ms. Borne’s involvement in the 3D printing process was
limited to taking the problematic curve code to her mentor for her mentor to fix. Yet,
the Government and lower court convoluted the question of how much gravity a court
may confer upon subjective intent when determining whether Ms. Borne possessed a
statutorily destructive device.
The circuit split is not as complex as the Government purports. Each circuit
court has invariably acknowledged the necessity for the subjective intent
interpretation where unassembled parts have social utility or where the objective
inquiry leaves open the possibility of conversion of an object into a nonproscribed
device. Ms. Borne’s subjective intent and the objective analysis of the devices at issue
yield a finding in favor of Ms. Borne. Alternatively, a conviction under § 5845(f)(3)
cannot stand because Ms. Borne was not properly afforded notice that the
Government could utilize such an arbitrary application of the statute.
7
A conviction under 18 U.S.C. § 2339B for planning to show and demonstrate a
potentially dangerous computer code to a known foreign terrorist organization is
equally unsustainable. The Government fails to show Ms. Borne knowingly,
attempted, or conspired to provide material support as required by the statute. Ms.
Borne engaged in content-based speech, triggering strict First Amendment scrutiny,
which the Government cannot overcome by merely arguing they have a compelling
interest in protecting citizens from Ms. Borne, a nonthreatening 17-year-old with no
known ties to a terrorist group. The criminalization of Ms. Borne’s speech, which
serves to advocate for peaceful, nonviolent activity and discourages terrorism, is
legally unsupported in the face of First Amendment protections. Accordingly, this
Court should hold in favor of Petitioner.
ARGUMENT
I.
Ms. Borne cannot be charged under 26 U.S.C. § 5845(f)(3) for making
an explosive device by allegedly designing and fabricating firearm
parts on a 3D printer when the Government failed to establish
sufficient evidence, did not utilize the appropriate standard, and
violated Ms. Borne’s constitutional rights.
At issue is whether Ms. Borne made an explosive device, as prescribed by 26
U.S.C. § 5845(f)(3), by allegedly designing and fabricating firearm parts on a 3D
printer. Title 26 of the Code incorporates the prior National Firearm Act and was
passed as part of the Gun Control Act of 1968. R. at 19. Although the unrefuted
purpose of the statute is to “regulate the firearms industry and firearm owners
through Congress’ power to regulate interstate commerce,” statutory interpretation
begins with the language of the statute itself. See Landreth Timber Co. v. Landreth,
8
471 U.S. 681 (1985). “To determine whether the statutory language is plain and
unambiguous, we look at ‘the language itself, the specific context in which that
language is used, and the broader context of the statute as a whole.” Int’l Bus. Machs.
Corp. v. United States, 201 F.3d 1367 (Fed. Cir. 2000) (quoting Robinson v. Shell Oil
Co., 519 U.S. 337 (1997). The term “destructive device” in § 5845(f) is defined as:
(1) any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C)
rocket having a propellent charge of more than four ounces, (D) missile
having an explosive or incendiary charge of more than one-quarter
ounce, (E) mine, or (F) similar device . . . .
(2) any type of weapon by whatever name known which will, or which
may be readily converted to, expel a projectile by the action of an
explosive or other propellant, the barrel or barrels of which have a bore
of more than one-half inch in diameter, except a shotgun or shotgun shell
which the Secretary finds is generally recognized as particularly
suitable for sporting purposes; and
(3) any combination of parts either designed or intended for use in
converting any device into a destructive device as defined in
subparagraphs (1) and (2) and from which a destructive device may be
readily assembled.
26 U.S.C. § 5845(f) (emphasis added). A destructive device may be fully assembled
under § 5845(f)(1), or made of component parts, as outlined in § 5845(f)(3). While the
element of intent is expressly mentioned in the “component parts” provision of §
5845(f)(3), this language is noticeably absent from § 5845(f)(1). This discrepancy
within the statute has resulted in divided circuit courts, as noted by the court below.
R. at 19.
A.
The court applied the incorrect standard for determining
intent, and under the appropriate standard, Ms. Borne lacks the
requisite intent to support a conviction.
The Government cannot have its proverbial cake and eat it too. Here, in an
attempt to secure an unfounded conviction, the Government haphazardly points to a
9
slew of problematic devices within Ms. Borne’s alleged possession: (1) the curve code
created by Mrs. Ascot, (2) plans to build a gun on a 3D printer readily available online,
found by Mr. Triton, (3) the plastic filament formula created by Ms. Triton in Ms.
Triton’s possession, and (4) a handful of ordinary objects Ms. Borne planned to travel
with when she studied abroad. R. at 7–9. The Government argues the aforementioned
objects are problematic because three particular items: a plastic cylinder “trophy,”
hairspray canister, and old camping matches—coupled with her alleged intent to
further the exploits of a known terrorist organization—indicate she was building a
bomb. R. at 18. The Government then contradictorily advocates for an analysis of the
applicable statute, 26 U.S.C. § 5845(f)(3), absent a consideration of Ms. Borne’s
subjective intent. R. at 19–20.
Although circuits are divided regarding the role of subjective intent in a
statutory analysis, it stands to reason that an inquiry into the defendant’s intentions
is appropriate, and an inquiry into the objective standard alone would be insufficient,
regardless when the device at issue has a “value other than a weapon.” United States
v. Hammond, 371 F.3d 776 (11th Cir. 2004) (applying a subjective intent standard).
In Hammond, the defendant was convicted of manufacturing a firearm made up of a
multi-layered, industrial-strength cardboard tube, filled with a mixture of explosive
powders. 371 F.3d at 778. A single green fuse ran through the tube, which was sealed
with candle wax on both ends and reinforced with tape. Id. The Eleventh Circuit
concluded the device was not “designed as a weapon” capable of expelling projectiles.
Rather, as evidenced by the defendant’s subjective intent, the device was designed as
10
a homemade firecracker. Id. at 782. The Ninth Circuit and Fourth Circuit join the
Eleventh Circuit. See, e.g., United States v. Peterson, 475 F.2d 806 (9th Cir. 1973)
(“Congress manifestly intended to proscribe friendly things when with evil intent
they are combined or joined together to produce a hostile object or device.”); United
States v. Morningstar, 456 F.2d 278 (4th Cir. 1972) (requiring an intent analysis
because it comports with an interpretation of “the plain language of the Act”).
Even circuits preferential to a blanket objectivity analysis understand the
importance of a survey into an actor’s subjective intent, purpose, or motive. See, e.g.,
United States v. Posnjak, 457 F.2d 1110, 1118–20 (2d Cir. 1972) (applying an
objective standard); see also United States v. Panzero, 225 F.3d 660 (6th Cir. 2000)
(applying an objective standard). In Posnjak, the defendant possessed commercial
dynamite, and the court held that when a device’s objective character is clearly within
the statute, whether (1) or (2) of § 5845(f), additional evidence of intent was irrelevant
to establish criminal liability. Posnjak, 457 F.2d at 1119. However, this finding did
not preclude the court from recognizing that when a device has a salutary purpose,
the analysis may require consideration of the defendant’s intent. Id. The court
explained that criminal liability should attach when the possessor intended to possess
a device for destructive purposes—not in cases where the ambiguity of a device’s
purpose, whether unassembled or combined, is present. Id.
Acknowledging that sister circuit courts invariably intertwine the two
standards regardless of circuit preference at the outset, the Seventh Circuit adopted
a “mixed” preference. See, e.g., United States v. Johnson, 152 F.3d 618, 628 (7th Cir.
11
1998). The court determined the terms “designed” and “intended” in subpart (3) of the
statute are disconnected by the disjunctive “or,” indicating the pronouncement of
separate meanings. Id. Therefore, under section (3), which Ms. Borne is charged
under, a “device” may be “destructive” either by objective design or intent. Id.; see
also United States v. Lussier, 128 F.3d 1312, 1315 & n. 4 (9th Cir. 1997).
The circuit split is rooted in superficial semantics. When dealing with a
combination-of-parts situations, particularly with items containing legitimate and
illegitimate uses, courts unilaterally recognize the ambiguity and resolve the
ambiguity with the incorporation of a defendant’s subjective intent. See, e.g., United
States v. Tankersley, 492 F.2d 962, 966 (7th Cir. 1974) (possessing the makings of a
Molotov cocktail: a bottle, firecracker, tape, and paint remover, required
consideration of subjective intent because the components have social utility).
In the instant case, the Government presents two arguments for concluding
that, objectively, the device was designed as a weapon: the construction of the device
and the destructive nature of the device. However, the Government fails to
supplement these arguments with any evidence for this Court to find in the
affirmative. The evidence and case law demonstrates that there is nothing illegal
about creating a curve code, an act Ms. Borne herself cannot even take credit for
accomplishing; Ms. Borne did not create the design to print a handgun on a 3D
machine, as the information was found by Mr. Triton and was already easily
obtainable online. R. at 7–9. Further, Ms. Borne was not involved in the process for
creating a formula for a stronger plastic filament, nor did she ever possess the plastic
12
filament formula. R. at 10–11. As to the secondary destructive device at issue, the
items found in Ms. Borne’s travel bag were commonplace and could not have been
feasibly used for illegal means. R. at 12.
The Government’s own FBI ballistics expert witness testified that Mr. Triton’s
plastic filament formula, combined with the gun plans, could not create a device that
would effectively discharge a weapon—much less “readily assembl[e]” a weapon—as
required by the statute. R. at 19; 26 U.S.C. § 5845(f)(3). Additionally, despite the
Government’s contentions that Ms. Borne was creating a destructive device, namely
a “bomb” with the three objects, the Government’s theory is scientifically unsound. R.
at 19. The plastic cylinder created by Mr. Triton was only sealed on one end to
resemble the platform of a trophy. 2 R. at 10. This deliberate design is problematic for
the Government for two reasons: (1) the printed cylinder and the cylinder’s electronic
specifications are smaller than the one-half inch bore diameter required under the
statute; 3 and (2) the printed cylinder is inept as a destructive device.
As to the latter, if insufficiently sealed, as this cylinder was at the time of Ms.
Borne’s arrest, the item could not be properly pressurized and ignited. Further, Ms.
Borne had no items in her possession that could be used as a sealant or, in the
alternative, a propellant, rending her possession of matches and hairspray innocuous.
Cf. United States v. Fleischli, 305 F.3d 643, 656 (7th Cir. 2002) (cardboard devices
2
3
Albeit a simple plastic cylinder, the trophy commemorated the day that Mr. Triton and Ms. Borne
were able to successfully create an item using the 3D printer. R. at 10.
The destructive device statute specifies “the barrel or barrels of which have a bore of more than onehalf inch in diameter.” 26 U.S.C. § 5845(f)(2) (emphasis added). The bore is located within the barrel.
The total diameter of the alleged cylinder barrel here is one-half inch, rendering it inconceivable
that the bore diameter would be larger than one-half inch.
13
contained a mixture of highly explosive powder never used for fireworks); Johnson,
152 F.3d at 620 (sealed device constructed from plastic tubing and contained nails);
United States v. Copus, 93 F.3d 269 (7th Cir. 1996) (sealed devices constructed with
metal casing); United States v. Price, 877 F.2d 334, 336 (5th Cir. 1989) (device
containing hand grenade hulls); Peterson, 475 F.2d at 807 (device containing a
mixture of gunpowder and incendiary ingredients).
Standing in unadulterated opposition to existing law, neither devices’ objective
features support a finding that it was designed as a weapon. The evidence
unequivocally indicates the items in her possession were for legitimate and social use.
Thus, the district court should not have found the items were a designed “destructive
device.” See Copus, 93 F.3d at 274 (“The only possible limit we discern from the
statutory language is that the device must have been designed or redesigned ‘as a
weapon.’”); United States v. Reindeau, 947 F.2d 32, 36 (2d Cir. 1991) (“even applying
an objective test . . . a device would be exempted from the statute if it could be shown
that it was not ‘designed as a weapon.’”).
Equally problematic is Ms. Borne’s clear lack of intent to create a destructive
device. Cf. United States v. Saunders, 166 F.3d 907 (7th Cir. 1999) (extrapolating the
defendant’s intent to produce a weapon from his decision to send the device and a
threatening letter to a judge). Even assuming arguendo that any of the items in her
possession could be construed as destructive devices, Ms. Borne did not have the
required mens rea to support the instant convictions, and the Government was
required to prove beyond a reasonable doubt that Ms. Borne knew the items in her
14
possession were prohibited. See, e.g., Staples v. United States, 511 U.S. 600 (1994)
(defendant was convicted under § 5845, and the Court held that the government was
required to prove beyond a reasonable doubt that the defendant knew a weapon he
possessed had characteristics that brought it within the statutory definition); Cosby
v. Jones, 682 F.2d 1373, 1383 (11th Cir. 1982) (“[I]f the evidence viewed in the light
most favorable to the prosecution gives equal or nearly equal circumstantial support
to a theory of guilt and a theory of innocence of the crime charged, then a reasonable
jury must necessarily entertain a reasonable doubt.”).
The evidence presented at Ms. Borne’s trial indicated that Ms. Borne is an
inquisitive 17-year-old, with computer programming aspirations to one day create
her own computer game. R. at 3. Ms. Borne was mentored by her then-teacher, Mrs.
Ascot, and like any teenager, Ms. Borne spent a substantial amount of time on the
internet. R. at 22. After she was chosen to participate in the study abroad program,
Ms. Borne made the decision to utilize her computer skills to “become a force for good
in the universe.” R. at 11. There was no evidence presented, however, indicating that
Ms. Borne was planning to create a firearm on the 3D machine, much less a
destructive device, outright or for the purposes of furthering a known terrorist
organization. To the contrary, the Government produced statements made by Ms.
Borne via her Twitter account at trial, revealing Ms. Borne is a fierce proponent of
gun regulation. R. at 18. Ms. Borne is also an indiscriminate, outspoken advocate
against hacker groups who use their skills to “exploit bank, financial, and government
security flaws.” R. at 17. Consequently, Ms. Borne cannot be found guilty of
15
possessing a destructive device as afforded by 26 U.S.C. § 5845(f) under either an
objective or subjective analysis.
B.
A conviction under 26 U.S.C. § 5845(f)(3) implicates Ms. Borne’s
Second Amendment rights to home-manufacture firearms.
The Second Amendment guarantees the right to bear arms. U.S. Const. amend.
II.; see also District of Columbia v. Heller, 544 U.S. 570, 559 (2008) (landmark case
holding the Second Amendment applies to federal enclaves and protects an
individual’s right to possess a firearm for traditionally lawful purposes). Presuming
Ms. Borne was intending to create a firearm using the 3D printer, she is not barred
from doing so under the Second Amendment. In Heller, the Court held the
constitutional right to bear arms is most acute within the home, and policy concerns
cannot take unmitigated precedence. Id. Rather, individual autonomy is essential in
a
Second
Amendment
interpretation
analysis.
Id.
“The
enshrinement
of
constitutional rights necessarily takes certain [gun] policy choices off the table.” Id.
at 636.
Authoring the majority opinion in Heller, Justice Scalia outlined four generally
permissible arms restrictions: “[N]othing in our opinion should be taken to cast doubt
on longstanding prohibitions on the possession by felons and the mentally ill, or laws
forbidding carrying in sensitive places . . . or laws imposing conditions and
qualifications on the commercial sale of arms.” Id. at 626–27. Under Heller’s
“longstanding prohibitions,” there is no support for excluding home-manufacture
from constitutional protection.
16
Specifically, firearms “in common use at the time” of consideration are
protected, whereas “dangerous and unusual” weapons are not. Id.; see also United
States v. Miller, 307 U.S. 174 (1939). The dangerous and unusual categorization has
been historically limited to weapons with “inordinate power,” lacking legitimate
defensive utility. Heller, 544 U.S. at 607. There is an absence of jurisprudence,
however, regarding the right to manufacture weapons on a 3D printer and whether
designs on a 3D printer constitute a dangerous and unusual weapon. Additionally, no
regulatory authority or court has criminalized personal firearm manufacturing. See
Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF), 3-D Printing Technology
of Firearms, https://www.atf.gov/qa-category/3-d-printing-technology-firearms (last
visited Nov. 23, 2015). ATF explicitly permits the manufacture of 3D printing
technology of firearms for personal use. Id.
American history supports a general right to make arms for personal use,
largely without exception. Adept, young individuals such as Ms. Borne should not be
foreclosed from improving existing firearm designs or utilizing emerging
technologies. No divining is necessary to hold that Ms. Borne was impermissibly
charged under 26 U.S.C. § 5845(f)(3) for making an explosive device by designing and
fabricating firearm parts on a 3D printer. See generally, United States v. Mehanna,
735 F.3d 32 (1st Cir. 2013), cert. denied, 135 S. Ct. 49 (2014) (“The [court] is not a
sorting hat, divining which criminal defendants’ stories fall into constitutionally
protected and unprotected stacks.”).
17
C.
The Government’s arbitrary appropriation of the statute and
the statute’s vague language violates Ms. Borne’s due process
rights under the Fifth Amendment.
The fair notice requirement of the Due Process Clause requires penal statutes
to be sufficiently definite to give an ordinary citizen notice of prohibited conduct. U.S.
Const. amend. V; see also City of Chi. v. Morales, 527 U.S. 41, 58 (1999). A
constitutional challenge arises when a statute (1) “fails to provide the kind of notice
that will enable ordinary people to understand what conduct it prohibits” or (2) “fails
to provide explicit standards to prevent arbitrary and discriminatory enforcement by
those enforcing the statute.” Id.; see also Kolender v. Lawson, 461 U.S. 352, 357–58
(1983) (holding a statute may be attacked for void of vagueness if application permits
“a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their
personal predilections”); see, e.g., United States v. Vest, 448 F. Supp. 2d 1002 (S.D.
Ill. 2006) (holding a statute prohibiting knowingly possessing a machine gun used to
convict a police officer, who had ordered the machine gun while serving as an
equipment officer for his SWAT team, was unconstitutionally vague). The
requirement that a penal statute provide minimal guidelines in order to discourage
arbitrary enforcement is “perhaps the most meaningful aspect of the vagueness
doctrine.” Smith v. Goguen, 415 U.S. 566, 574 (1974). Therefore, “[v]agueness
challenges that do not involve First Amendment freedoms must be analyzed as
applied to the specific facts of the case at hand.” Maynard v. Cartwright, 486 U.S.
356, 361 (1988).
For Ms. Borne to be convicted under 26 U.S.C. § 5845(f)(3), an ordinary person
18
in her position would have to have known that by associating with another individual
intending to design and fabricate firearm parts on a 3D printer and assisting in
matters only tangentially related, she would be subject to criminal liability under the
statute. See Lawson, 461 U.S. at 357–58. In the alternative, the statute would have
to have provided “explicit standards to prevent . . . arbitrary enforcement.” See id.
However, the evidence demonstrates that the statute is void for vagueness under both
parts of the doctrine as applied to Ms. Borne.
Ms. Borne never sought to design and fabricate firearm parts on a 3D printer—
although her friend’s father did. R. at 6–9. Ms. Borne’s sole purpose for her
involvement in the 3D printing process was to build a 3D model of her online gaming
character. R. at 7. After Ms. Borne gave Mrs. Ascot’s curve code to Mr. Triton, it was
Mr. Triton and his daughter who pursued fabricating firearm parts by working on a
new formula for a stronger plastic filament. R. at 10–11. Given Ms. Borne’s limited,
obliquely related involvement in the 3D printing process, a reasonable person would
not be placed on notice that such constricted conduct warrants liability under 26
U.S.C. § 5845(f)(3). Further, the statute’s problematic terms—evidenced by the
existence of the circuit split—render “arbitrary enforcement” inevitable. Compare
Hammond, 371 F.3d at 776 (applying a subjective standard) with Posnjak, 457 F.2d
at 1118–20 (applying an objective standard). At the heart of due process protection,
the prosecution of Ms. Borne demonstrates the dangers posed by a vague statute. As
consequence, this Court should reverse the Fourteenth Circuit and hold in favor of
Ms. Borne.
19
II.
A conviction under 18 U.S.C. § 2339B for planning to show and
demonstrate a potentially dangerous computer code to a known
foreign terrorist organization is unfounded because it violates Ms.
Borne’s constitutionally protected rights and is insufficiently
supported by evidence.
This case concerns the constitutionality and proper interpretation of 18 U.S.C.
§ 2339B, which criminalizes providing “material support or resources” to an
organization designated by the Secretary of State as a “foreign terrorist
organization.” A foreign terrorist organization engages in “terrorist activity” when
that activity threatens the national defense, foreign relations, or economic interests
of the United States. See 8 U.S.C. § 1189; 8 U.S.C. § 1182(a)(3)(B)(iii) (“Terrorist
activity” is defined sweepingly to include the use of any “weapon or dangerous device
(other than for mere personal monetary gain), with intent to endanger, directly or
indirectly, the safety of one or more individuals or to cause substantial damage to
property.”). Under the statute, “material support” includes providing personnel,
training, or expert advice or assistance to designated organizations. 18 U.S.C. §
2339B. Training is prohibited where instruction or teaching imparts “specific skills,”
but not “general knowledge.” Id. The “expert advice” ban criminalizes advice when its
content “derives from scientific, technical, or other specialized knowledge.” Id.
Absent the application of the strict scrutiny standard, the Fourteenth Circuit
determined that Ms. Borne violated 18 U.S.C. § 2339B by making plans to “show a
potentially dangerous computer code” to a known foreign terrorist organization. 4 R.
at 24. The appellate court acknowledged that the Federal Government had a
4
The parties do not dispute that Dixie Millions is a properly designated foreign terrorist
organization. R. at 20.
20
compelling interest in protecting “untold suffering to countless American citizens,”
despite the Government’s failure to show Ms. Borne knowingly acted contrary to the
Government’s compelling interest or that other methods of addressing the purported
problematic speech were inadequate. R. at 17–24. The decision rendered by the
Fourteenth Circuit was incorrect, in both approach and conclusion, and should be
reversed.
A.
The Government cannot prevail in either a strict scrutiny or
intermediate scrutiny analysis when Ms. Borne’s content-based
speech is protected under the First Amendment, and the
Government has failed to establish such censorship as a
compelling governmental interest.
The statute at issue, § 2339B, discriminates against content-based speech in
its prohibition of “material support,” which includes providing personnel, training, or
expert advice or assistance to designated organizations. 18 U.S.C. § 2339B.
Criminalizing Ms. Borne’s speech, which serves to advocate for peaceful, nonviolent
activity and discourage terrorism, triggers strict First Amendment scrutiny. See
generally Bartnicki v. Vopper, 532 U.S. 514, 526 (2001) (holding only a need “of the
highest order” can justify a regulation of pure speech); see also Cox Broad. Corp. v.
Cohn, 420 U.S. 469, 495 (1975) (applying strict scrutiny to a statute penalizing “pure
expression”); Cohen v. California, 403 U.S. 15, 18–19 (1971) (applying strict scrutiny
to a conviction for pure expression). In a speech prohibition evaluation, context is allimportant. FCC v. Pacifica Found., 438 U.S. 726, 750 (1978).
As the First Amendment provides: “Congress shall make no law . . . abridging
the freedom of speech.” U.S. Const. amend. I. Laws that restrict the content of speech
21
are presumptively invalid, and the Government has the burden of proving otherwise.
United States v. Stevens, 559 U.S. 460, 467 (2010). “From 1791 to the present,
however, the First Amendment has ‘permitted restrictions upon the content of speech
in a few limited areas,’” including defamation, obscenity, fraud, and speech central to
criminal conduct. Id. (emphasis added) (citation omitted). The Government cannot
simply bolster its prohibition by citing to a limited area of authorized speech
restriction. The Government is required to justify the prohibition of content-based
speech by showing (1) they have a compelling government interest in regulating the
speech, (2) the speech poses a real threat to the specified interest, and (3) a no less
restrictive means exists. See, e.g., United States v. Playboy Entm’t Grp., Inc., 529
U.S. 803, 813 (2000) (“Since [the law] is a content-based speech restriction, it can
stand only if it satisfies strict scrutiny.”); Simon & Schuster, Inc. v. Members of the
N.Y. State Crime Victims Bd., 502 U.S. 105, 115 (1991) (“A statute is presumptively
inconsistent with the First Amendment . . . if it discriminates against . . . speakers
because of the content of their speech.”).
1.
Speech promoting peaceful activities cannot be prohibited
simply because the speaker exhibits alleged terrorist
sympathies or such sympathies may inadvertently yield an
unintended consequence.
Content-based laws may be upheld only where the Government establishes
that the particular content distinctions drawn are “the least restrictive means” to
further a “compelling governmental interest.” Sable Commc’ns of Cal., Inc. v. FCC,
492 U.S. 115, 126 (1989). While combating terrorism is undoubtedly a compelling
interest, the Government has not shown that criminalizing pure speech advocating
22
peaceful activities is necessary to further that interest, nor can the Government point
to anything in the legislative or litigated record supporting a ban on such speech. R
at 17–23. As the Government’s own expert witnesses testified, it was Ms. Borne’s
“goal [to] convinc[e] these groups not to ‘exploit bank, financial, and government
security flaws’ . . . .” R. at 17. The fact that the statute reaches speech that implicates
foreign affairs and a citizen’s sympathies does not reduce the need for stringent First
Amendment review. See, e.g., Lamont v. Postmaster Gen., 381 U.S. 301 (1965)
(protecting First Amendment rights of Americans to receive Communist literature
from abroad).
Under the First Amendment—and contrary to the Fourteenth Circuit’s
findings—Ms. Borne may sympathize with the ideals espoused by some members of
Dixie Millions. R. at 20. See Humanitarian Law Project, 130 S. Ct. at 2730; see also
Bond v. Floyd, 385 U.S. 116, 133–34 (1966) (holding speech sympathetic to unlawful
acts is not punishable). However offensive or even callous, speech cannot be punished
for expressing a point of view. See e.g., Snyder v. Phelps, 562 U.S. 443, 448 (2011)
(holding that cruelly “thank[ing] God for dead soldiers” at a fallen veteran’s funeral
is protected speech); Stevens, 559 U.S. at 460 (holding statute criminalizing
fetishistic videos showing animal torture is facially unconstitutional); Brandenburg
v. Ohio, 395 U.S. 444, 447–49 (1969) (calling for the murder of racial minorities and
for overthrowing the government could not support a prosecution). The line between
permitted speech and one which is punishable under law is generous. See
Brandenburg, 395 U.S. at 447. And Ms. Borne has not crossed that line.
23
The Government alternatively argued Ms. Borne sought to further terrorist
activities by providing the group with a “dangerous computer code.” R. at 22. The
code, according to the Government, is akin to offering material financial support
because the terrorist organization would no longer have to utilize its resources to
obtain the information elsewhere. R. at 22–24. But the Government’s material
support theory lacks evidentiary sustenance. Provided that the Government correctly
identified Mrs. Ascot as a member of Dixie Millions, it was Mrs. Ascot who created
the curve code—not Ms. Borne. R. at 8. Further, the schematics to create a firearm
on the 3D machine were found online by Mr. Triton, R. at 9, and are available to
anyone with an internet connection. See, e.g., Alan Feuer, Cody Wilson, Who Posted
Gun Instructions Online, Sues State Department, N.Y. Times (May 6, 2015),
available
at
http://www.nytimes.com/2015/05/07/us/cody-wilson-who-posted-gun-
instructions-online-sues-state-department.html. Presumably, the world’s most elite
hacker organization could generate a successful Google search. An analysis of the
evidence brought forth by the Government indicates Ms. Borne herself has no
material support to offer Dixie Millions—rendering any speech echoing or mirroring
support for Dixie Millions constitutionally protected.
Ms. Borne is a sharp teenager with coding capabilities, who has yet to align
herself with the illegal practices of hackers, and this Court has repeatedly rejected
the proposition that “speech by a law-abiding possessor of information can be
suppressed in order to deter conduct by a non-law-abiding third party.” Bartnicki, 32
U.S. at 516. It is equally problematic for the Government to attempt to justify statute
24
applicability by arguing interception of the alleged “dangerous computer code.” Id.;
see also Ashcroft v. Free Speech Coalition, 535 U.S. 234, 250 (2002) (“[T]he
government may not prohibit speech because it increases the chance an unlawful act
will be committed ‘at some indefinite future time.’”). Even where speech directly
advocates criminal conduct, the Court has held that it may not be penalized unless it
is intended and likely to produce “imminent lawless action.” Brandenburg, 395 U.S.
at 447. If the Government is not permitted to penalize direct advocacy of illegal
activity except in circumstances where it constitutes incitement to imminent crime,
surely it cannot criminalize Ms. Borne’s proposed speech, which promotes only
peaceful activities and does not embolden criminal conduct. R. at 17.
“Implicit in the term ‘national defense’ is the notion of defending those values
and ideals which set this Nation apart.” United States v. Robel, 389 U.S. 258, 264
(1967). The Government will not be deprived of its arsenal of legal instruments to
combat terrorism if the Court finds the Government failed to meet its burden of
justification under strict scrutiny, holding in favor of Ms. Borne. The Court finds
support in case law and Congress’ statement that the material support statute may
not be “construed or applied” in ways that violate the First Amendment. 18 U.S.C. §
2339B(i).
2.
The application of intermediate scrutiny also fails.
Alternatively, the Government has incorrectly suggested that the challenged
provisions are sustainable as content-neutral regulation. See generally, United
States v. O’Brien, 391 U.S. 367, 377 (1968). Although intermediate scrutiny does not
25
demand that the Government use the least restrictive means to further its ends, the
Government still must “demonstrate that the recited harms are real, not merely
conjectural, and that the regulation will in fact alleviate these harms in a direct and
material way.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994). Without
evidence that speech advocating nonviolent ends furthers terrorism, the Government
has not met its burden of showing the requisite fit between these provisions and its
legitimate national security interests, even under the more lenient intermediate
scrutiny standard.
B.
The Government violated Ms. Borne’s right of Free Association
under the First Amendment by imposing a blanket prohibition
on speech with persons having legal and alleged illegal aims.
There are two contexts in which this Court has traditionally recognized “free
association” rights: (1) in the context of “intimate human relationships,” and (2)
where the purpose of the association is to “engag[e] in those activities protected by
the First Amendment—speech, assembly, petition for the redress of grievances, and
the exercise of religion.” Dallas v. Stanglin, 490 U.S. 19, 23–24 (1989); see also
Dawson v. Delaware, 503 U.S. 159 (1992); U.S. Const. amend. I. In Dawson, this
Court held that a defendant’s membership in a white supremacist prison gang
implicated the First Amendment. See id. at 163–68. “[T]he First Amendment protects
an individual’s right to join groups and associations with others holding similar
beliefs.” Id. at 163–64 (citing Aptheker v. Sec’y of State, 378 U.S. 500 (1964)).
To the extent that Ms. Borne may be affiliated with a known foreign terrorist
group by sharing beliefs supported by the organization, the First Amendment applies.
26
U.S. Const. amend. I. As previously prescribed by this Court, the material support
statute excludes speech intended to further non-violent activity. Id. It is axiomatic
that the Government may not punish association intended to dissuade, as Ms. Borne
sought to do, an organization from engaging in unlawful activity. R. at 17. The
interpretation of the material support provision, as bolstered by the Government,
offends these principles. As consequence, the Government may not assert it is fighting
the “war on terror” in support of convicting an inquisitive 17-year-old with no proven
ties to a terrorist organization. R. at 24.
External threats regularly permeate our nation, and our political branches
have maintained the balance between protecting our nation and stripping individuals
of their constitutionally protected rights. See generally, Geoffrey R. Stone, Perilous
Times: Free Speech in Wartime, from the Sedition Act of 1798 to the War on
Terrorism (2004). Ill-conceived restrictions on the freedoms of speech and association
erode this objective. See, e.g., 18 U.S.C. § 2385 (overbroad in its subjugation of speech,
the Smith Act of 1940 made it a crime to advocate, advise, teach, or publish material
espousing the “duty, necessity, desirability, or propriety of overthrowing or
destroying the government of the United States . . . by force or violence”). Under the
Act, it was also a crime to associate or affiliate with such an organization. Id.
Over the next two decades, the Court worked to restore constitutional
entitlements, establishing clear limits on guilt by association. See Scales v. United
States, 367 U.S. 203 (1961) (rejecting the membership clause of the Smith Act). In
Scales, the Court held “a blanket prohibition of association with a group having both
27
legal and illegal aims [would create] a real danger that legitimate political expression
or association would be impaired.” Id. at 229. The Court determined that the
Constitution requires proof of intent to further a group’s illegal aims in order for an
individual to be subject to criminal sanctions resulting from their group association.
Id. In Noto v. United States, released jointly with Scales, the Court held association
with an organization by itself cannot justify criminal liability; such allowances would
leave an individual supporting only the lawful aims of an organization susceptible to
“punish[ment] for his adherence to lawful and constitutionally protected purposes,
because of other . . . unprotected purposes which he does not necessarily share.” Noto
v. United States, 367 U.S. 290, 299–300 (1961); see also Keyishian v. Bd. of Regents
of the Univ. of the State of New York, 385 U.S. 589, 607 (1967) (holding membership
in the Communist Party “cannot suffice to justify criminal punishment”). To
safeguard against the possibility of imposing criminal liability on the innocent, the
Court has prohibited the criminalization of “passive” or nominal membership in an
organization with unlawful goals. Only “active” members may be punished. Scales,
367 U.S. at 228.
Effectually, the Government here is arguing for the imposition of a “blanket
prohibition” on association with a Government-designated organization. R. at 16–18.
Section 2339B prohibits individuals from interacting with the designated
organizations in ways that advance legal aims of the organizations, such as providing
training or expertise. However, as applied to Ms. Borne by the Government, the
statute’s sweep also encompasses activities that are not material—for example,
28
providing an otherwise readily available computer code and 3D printing gun plans.
R. at 7–9. Such an interpretation exists in blunt opposition to well-established
precedence, and the Government cannot prevail by raising unfounded “war on terror”
invocations. See Scales, 367 U.S. 203; see also Noto, 367 U.S. 290; Robel, 389 U.S. at
263. The “war on terror” phrase “cannot be invoked as a talismanic incantation to
support any exercise of congressional power which can be brought within its ambit.”
Robel, 389 U.S. at 263. In Robel, the Court concluded that the Government’s purpose
to advance national defense initiatives was not sufficiently tailored, violating the
right to free association. Id. at 265.
[The] concept of national defense cannot be deemed an end in itself,
justifying any exercise of legislative power designed to promote such a
goal. Implicit in the term national defense is the notion of defending
those values and ideals which set this nation apart. For almost two
centuries, our country has taken singular pride in the democratic ideals
enshrined in the Constitution, and the most cherished of those ideals is
found in the First Amendment. It would be ironic if, in the name of
national defense, we would sanction the subversion of one of those
liberties—the freedom of association—which makes the defense of the
Nation worthwhile.
Robel, 389 U.S. at 263–64.
The First Amendment sets a high bar for restrictions on speech based “solely
on fear of illegal activity perpetrated by the recipients of speech.” Brandenburg, 395
U.S. at 447. “Except where such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce such action,” should speech
be suppressed in the context of association. Id.
The material support statute,
therefore, cannot be utilized to punish Ms. Borne’s speech “by reason of association
alone, . . . impermissibly intrud[ing] upon [her] freedoms guaranteed by the First
29
Amendment.” Brandenburg, 395 U.S. at 448.
C.
The Government failed to provide sufficient evidence to show that Ms.
Borne knowingly, attempted, or conspired to materially support a
known foreign terrorist organization.
Put simply, Ms. Borne was charged with violating 18 U.S.C. § 2339B for
making one-sided plans to meet a prolific individual, while having a computer code
in her possession. R. at 11–12. The statute criminalizes “knowingly provid[ing]
material support or resources to a foreign terrorist organization, or attempt[ing] or
conspir[ing] to do so.” 18 U.S.C. § 2339B(a)(1). To satisfy the intent requirement of §
2339B, a defendant must have knowledge that the organization is a designated
terrorist organization . . . , that the organization has engaged or engages in terrorist
activity . . . , or that the organization has engaged or engages in terrorism.” Id.; see
also Humanitarian Law Project, 561 U.S. at 130.
As this Court has repeatedly emphasized: “[I]n our jurisprudence, guilt is
personal.” See Scales, 367 U.S. at 224; United States v. Al Kassar, 660 F.3d 108, 129
(2d Cir. 2011) (identifying “two express scienter requirements: that the aid be
intentional and that the defendant know the organization he is aiding is a terrorist
organization or engages in acts of terrorism”). Therefore, Ms. Borne cannot be
convicted on the material support statute unless she knew the organization was a
designated foreign terrorist organization or knew of the organization’s unlawful
activities and she intended to participate.
While the “knowingly” threshold poses a significant challenge to the
Government, the conspiracy and attempt prongs of the statute are favorable to the
30
Government in practice. “Conspiracy [and attempt] are convenient tools for
prosecutors.” See, e.g., Stone, Perilous Times (“[T]he crime of conspiracy has routinely
been used by prosecutors to get union organizers, political dissenters, radicals, and
other ‘dangerous’ individuals who could not otherwise be convicted of an offense.”).
Despite yielding an advantageous position, the Government did not sufficiently
show that Ms. Borne knew, attempted, or conspired to provide material support,
namely a “dangerous computer code,” to a foreign terrorist organization. R. at 17–18.
The limited evidence brought forth by the Government does not support the
subsequent prosecution of Ms. Borne, particularly given that her alleged involvement
does not rise to the level of direct engagement evaluated by the Court in
Humanitarian Law Project. See id. at 2712. In Humanitarian Law Project, the
Government demonstrated evidence of “an active and close relationship” between the
plaintiffs and a foreign terrorist organization. Id. The plaintiffs sought to teach and
train members of the foreign terrorist organization how to petition the United Nation
for relief and monetary aid. Id. The Court limited its holding that such actions
constituted “material support” under the statute to the facts before it. Id. at 2729–30.
We conclude that the material support statute is constitutional as
applied to the particular activities plaintiffs have told us they wish to
pursue. We do not . . . address the resolution of more difficult cases that
may arise under the statute in the future. . . . All this is not to say that
any future applications of the material support statute to speech or
advocacy will survive First Amendment scrutiny.
Id. at 2730. The Court further cautioned, “‘gradations of fact or charge would make a
difference as to criminal liability,’ and so ‘adjudication of the reach of the
constitutionality of the statute must await a concrete fact situation.’” Id. at 2722
31
(quoting Zemel v. Rusk, 381 U.S. 1, 20 (1965)).
In implementing the statute, Congress was concerned with persons providing
direct support, “vigorously promoting and supporting the political goals of the group.”
Id. at 2730. “In particular, we in no way suggest that a regulation of independent
speech would pass constitutional muster, even if the Government were to show that
such speech benefits foreign terrorist organizations.” Id.; see also United States v.
Farhane, 634 F.3d 127, 137 (2d Cir. 2011) (explaining that Humanitarian Law Project
does not punish “independent advocacy, membership, or association” with foreign
terrorist organizations). Thus, while the Court deferred to congressional and
executive findings in holding that the plaintiffs’ proposed teaching and training could
be banned despite the plaintiffs’ lawful intent, the Court was explicit: the First
Amendment bounds the statute’s reach. Id. at 2725–28.
The Government here had the burden to show a sufficient relationship existed
between Ms. Borne and Dixie Millions, specifically with Mr. Allen. Yet, the
Government conceded Ms. Borne never had any contact with Mr. Allen or, to her
knowledge, a known Dixie Millions member. R. at 11–18. Following an investigation
into Ms. Borne’s social media presence and internet usage, amidst the juvenile
rhetoric fitting for a 17-year-old teenage girl, the Government admitted Ms. Borne
had a disdain for gun violence and disapproved of any hackers utilizing their skills to
leak sensitive information at the expense of others. R at. 17–18. The Government
attempts to classify an otherwise lawful act—a young girl’s internet searches and the
scheduling of an illusory meeting into a cell phone—as a substantial step in
32
furtherance of a crime. Yet, the alleged substantial step lacks reason and likelihood
of fruition. See Brandenburg, 395 U.S. at 447 (holding unlawful speech must be
imminent and “likely to incite or produce such action”). Ms. Borne, utilizing
information found online, believed to know the whereabouts of an elusive individual,
and entered her hopes into her phone. R. at 11–12. The knowledge, attempt, and
conspiracy alleged here is far too attenuated to substantiate such a conviction.
Additionally, any comments by Ms. Borne indicating she wished to learn more about
hacking and Dixie Millions remain protected by the First Amendment. Without more,
such comments cannot support an inference that Ms. Borne agreed, attempted, or
conspired to enter into an agreement to provide material support to a foreign terrorist
organization.
CONCLUSION
For the reasons discussed in this brief, this Court should hold that Petitioner
Emmaline Borne was improperly convicted under 26 U.S.C. § 5845(f)(3) and 18 U.S.C.
§ 2339B. Furthermore, this Court should REVERSE the Fourteenth Circuit’s holding.
Respectfully submitted,
Team No. 13
Counsel for Petitioner
33
CERTIFICATE OF SERVICE
We certify that a copy of Petitioner’s brief was served upon Respondent,
United States of America, through the counsel of record by certified U.S. mail,
return receipt requested, on this, the 23rd day of November, 2015.
/s/ Team No. 13
Counsel for Petitioner
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APPENDIX A
U.S. Const. amend. I. Freedom of Religion, Speech and Press; Peaceful Assemblage;
Petition of Grievances.
Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.
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APPENDIX B
U.S. Const. amend. II. Right to Bear Arms.
A well regulated Militia, being necessary to the security of a free State, the right of
the people to keep and bear Arms, shall not be infringed.
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APPENDIX C
U.S. Const. amend. V. Grand Jury Indictment for Capital Crimes; Double Jeopardy;
Self-Incrimination; Due Process of Law; Takings without Just Compensation.
No person shall be held to answer for a capital, or otherwise infamous crime, unless
on a presentment or indictment of a Grand Jury, except in cases arising in the land
or naval forces, or in the Militia, when in actual service in time of War or public
danger; nor shall any person be subject for the same offence to be twice put in
jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use, without just compensation.
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APPENDIX D
26 U.S.C. § 5845. Definitions.
(a) Firearm.--The term “firearm” means (1) a shotgun having a barrel or barrels of
less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as
modified has an overall length of less than 26 inches or a barrel or barrels of less
than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches
in length; (4) a weapon made from a rifle if such weapon as modified has an overall
length of less than 26 inches or a barrel or barrels of less than 16 inches in length;
(5) any other weapon, as defined in subsection (e); (6) a machinegun; (7) any silencer
(as defined in section 921 of Title 18, United States Code); and (8) a destructive
device. The term “firearm” shall not include an antique firearm or any device (other
than a machinegun or destructive device) which, although designed as a weapon,
the Secretary finds by reason of the date of its manufacture, value, design, and
other characteristics is primarily a collector's item and is not likely to be used as a
weapon.
(b) Machinegun.--The term “machinegun” means any weapon which shoots, is
designed to shoot, or can be readily restored to shoot, automatically more than one
shot, without manual reloading, by a single function of the trigger. The term shall
also include the frame or receiver of any such weapon, any part designed and
intended solely and exclusively, or combination of parts designed and intended, for
use in converting a weapon into a machinegun, and any combination of parts from
which a machinegun can be assembled if such parts are in the possession or under
the control of a person.
(c) Rifle.--The term “rifle” means a weapon designed or redesigned, made or remade,
and intended to be fired from the shoulder and designed or redesigned and made or
remade to use the energy of the explosive in a fixed cartridge to fire only a single
projectile through a rifled bore for each single pull of the trigger, and shall include
any such weapon which may be readily restored to fire a fixed cartridge.
(d) Shotgun.--The term “shotgun” means a weapon designed or redesigned, made or
remade, and intended to be fired from the shoulder and designed or redesigned and
made or remade to use the energy of the explosive in a fixed shotgun shell to fire
through a smooth bore either a number of projectiles (ball shot) or a single projectile
for each pull of the trigger, and shall include any such weapon which may be readily
restored to fire a fixed shotgun shell.
(e) Any other weapon.--The term “any other weapon” means any weapon or device
capable of being concealed on the person from which a shot can be discharged
through the energy of an explosive, a pistol or revolver having a barrel with a
smooth bore designed or redesigned to fire a fixed shotgun shell, weapons with
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combination shotgun and rifle barrels 12 inches or more, less than 18 inches in
length, from which only a single discharge can be made from either barrel without
manual reloading, and shall include any such weapon which may be readily
restored to fire. Such term shall not include a pistol or a revolver having a rifled
bore, or rifled bores, or weapons designed, made, or intended to be fired from the
shoulder and not capable of firing fixed ammunition.
(f) Destructive device.--The term “destructive device” means (1) any explosive,
incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellent
charge of more than four ounces, (D) missile having an explosive or incendiary
charge of more than one-quarter ounce, (E) mine, or (F) similar device; (2) any type
of weapon by whatever name known which will, or which may be readily converted
to, expel a projectile by the action of an explosive or other propellant, the barrel or
barrels of which have a bore of more than one-half inch in diameter, except a
shotgun or shotgun shell which the Secretary finds is generally recognized as
particularly suitable for sporting purposes; and (3) any combination of parts either
designed or intended for use in converting any device into a destructive device as
defined in subparagraphs (1) and (2) and from which a destructive device may be
readily assembled. The term “destructive device” shall not include any device which
is neither designed nor redesigned for use as a weapon; any device, although
originally designed for use as a weapon, which is redesigned for use as a signaling,
pyrotechnic, line throwing, safety, or similar device; surplus ordnance sold, loaned,
or given by the Secretary of the Army pursuant to the provisions of section 4684(2),
4685, or 4686 of Title 10 of the United States Code; or any other device which the
Secretary finds is not likely to be used as a weapon, or is an antique or is a rifle
which the owner intends to use solely for sporting purposes.
(g) Antique firearm.--The term “antique firearm” means any firearm not designed or
redesigned for using rim fire or conventional center fire ignition with fixed
ammunition and manufactured in or before 1898 (including any matchlock,
flintlock, percussion cap, or similar type of ignition system or replica thereof,
whether actually manufactured before or after the year 1898) and also any firearm
using fixed ammunition manufactured in or before 1898, for which ammunition is
no longer manufactured in the United States and is not readily available in the
ordinary channels of commercial trade.
(h) Unserviceable firearm.--The term “unserviceable firearm” means a firearm
which is incapable of discharging a shot by means of an explosive and incapable of
being readily restored to a firing condition.
(i) Make.--The term “make”, and the various derivatives of such word, shall include
manufacturing (other than by one qualified to engage in such business under this
chapter), putting together, altering, any combination of these, or otherwise
producing a firearm.
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(j) Transfer.--The term “transfer” and the various derivatives of such word, shall
include selling, assigning, pledging, leasing, loaning, giving away, or otherwise
disposing of.
(k) Dealer.--The term “dealer” means any person, not a manufacturer or importer,
engaged in the business of selling, renting, leasing, or loaning firearms and shall
include pawnbrokers who accept firearms as collateral for loans.
(l) Importer.--The term “importer” means any person who is engaged in the business
of importing or bringing firearms into the United States.
(m) Manufacturer.--The term “manufacturer” means any person who is engaged in
the business of manufacturing firearms.
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APPENDIX E
18 U.S.C. § 2339B. Providing material support or resources to designated foreign
terrorist organizations.
(a) Prohibited activities.-(1) Unlawful conduct.--Whoever knowingly provides material support or
resources to a foreign terrorist organization, or attempts or conspires to do so,
shall be fined under this title or imprisoned not more than 20 years, or both,
and, if the death of any person results, shall be imprisoned for any term of
years or for life. To violate this paragraph, a person must have knowledge
that the organization is a designated terrorist organization (as defined in
subsection (g)(6)), that the organization has engaged or engages in terrorist
activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality
Act), or that the organization has engaged or engages in terrorism (as defined
in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years
1988 and 1989).
(2) Financial institutions.--Except as authorized by the Secretary, any
financial institution that becomes aware that it has possession of, or control
over, any funds in which a foreign terrorist organization, or its agent, has an
interest, shall-(A) retain possession of, or maintain control over, such funds; and
(B) report to the Secretary the existence of such funds in accordance
with regulations issued by the Secretary.
(b) Civil penalty.--Any financial institution that knowingly fails to comply with
subsection (a)(2) shall be subject to a civil penalty in an amount that is the greater
of-(A) $50,000 per violation; or
(B) twice the amount of which the financial institution was required under
subsection (a)(2) to retain possession or control.
(c) Injunction.--Whenever it appears to the Secretary or the Attorney General that
any person is engaged in, or is about to engage in, any act that constitutes, or would
constitute, a violation of this section, the Attorney General may initiate civil action
in a district court of the United States to enjoin such violation.
(d) Extraterritorial jurisdiction.-A-7
(1) In general.--There is jurisdiction over an offense under subsection (a) if—
(A) an offender is a national of the United States (as defined in section
101(a)(22) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(22))) or an alien lawfully admitted for permanent residence in
the United States (as defined in section 101(a)(20) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(20)));
(B) an offender is a stateless person whose habitual residence is in the
United States;
(C) after the conduct required for the offense occurs an offender is
brought into or found in the United States, even if the conduct
required for the offense occurs outside the United States;
(D) the offense occurs in whole or in part within the United States;
(E) the offense occurs in or affects interstate or foreign commerce; or
(F) an offender aids or abets any person over whom jurisdiction exists
under this paragraph in committing an offense under subsection (a) or
conspires with any person over whom jurisdiction exists under this
paragraph to commit an offense under subsection (a).
(2) Extraterritorial jurisdiction.--There is extraterritorial Federal jurisdiction
over an offense under this section.
(e) Investigations.—
(1) In general.--The Attorney General shall conduct any investigation of a
possible violation of this section, or of any license, order, or regulation issued
pursuant to this section.
(2) Coordination with the Department of the Treasury.--The Attorney
General shall work in coordination with the Secretary in investigations
relating to—
(A) the compliance or noncompliance by a financial institution with the
requirements of subsection (a)(2); and
(B) civil penalty proceedings authorized under subsection (b).
(3) Referral.--Any evidence of a criminal violation of this section arising in the
course of an investigation by the Secretary or any other Federal agency shall
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be referred immediately to the Attorney General for further investigation.
The Attorney General shall timely notify the Secretary of any action taken on
referrals from the Secretary, and may refer investigations to the Secretary for
remedial licensing or civil penalty action.
(f) Classified information in civil proceedings brought by the United States.—
(1) Discovery of classified information by defendants.-(A) Request by United States.--In any civil proceeding under this
section, upon request made ex parte and in writing by the United
States, a court, upon a sufficient showing, may authorize the United
States to-(i) redact specified items of classified information from
documents to be introduced into evidence or made available to
the defendant through discovery under the Federal Rules of
Civil Procedure;
(ii) substitute a summary of the information for such classified
documents; or
(iii) substitute a statement admitting relevant facts that the
classified information would tend to prove.
(B) Order granting request.--If the court enters an order granting a
request under this paragraph, the entire text of the documents to
which the request relates shall be sealed and preserved in the records
of the court to be made available to the appellate court in the event of
an appeal.
(C) Denial of request.--If the court enters an order denying a request of
the United States under this paragraph, the United States may take
an immediate, interlocutory appeal in accordance with paragraph (5).
For purposes of such an appeal, the entire text of the documents to
which the request relates, together with any transcripts of arguments
made ex parte to the court in connection therewith, shall be
maintained under seal and delivered to the appellate court.
(2) Introduction of classified information; precautions by court.-(A) Exhibits.--To prevent unnecessary or inadvertent disclosure of
classified information in a civil proceeding brought by the United
States under this section, the United States may petition the court ex
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parte to admit, in lieu of classified writings, recordings, or
photographs, one or more of the following:
(i) Copies of items from which classified information has been
redacted.
(ii) Stipulations admitting relevant facts that specific classified
information would tend to prove.
(iii) A declassified summary of the specific classified
information.
(B) Determination by court.--The court shall grant a request under this
paragraph if the court finds that the redacted item, stipulation, or
summary is sufficient to allow the defendant to prepare a defense.
(3) Taking of trial testimony.-(A) Objection.--During the examination of a witness in any civil
proceeding brought by the United States under this subsection, the
United States may object to any question or line of inquiry that may
require the witness to disclose classified information not previously
found to be admissible.
(B) Action by court.--In determining whether a response is admissible,
the court shall take precautions to guard against the compromise of
any classified information, including-(i) permitting the United States to provide the court, ex parte,
with a proffer of the witness's response to the question or line of
inquiry; and
(ii) requiring the defendant to provide the court with a proffer of
the nature of the information that the defendant seeks to elicit.
(C) Obligation of defendant.--In any civil proceeding under this section,
it shall be the defendant's obligation to establish the relevance and
materiality of any classified information sought to be introduced.
(4) Appeal.--If the court enters an order denying a request of the United
States under this subsection, the United States may take an immediate
interlocutory appeal in accordance with paragraph (5).
(5) Interlocutory appeal.-A-10
(A) Subject of appeal.--An interlocutory appeal by the United States
shall lie to a court of appeals from a decision or order of a district
court-(i) authorizing the disclosure of classified information;
(ii) imposing sanctions for nondisclosure of classified
information; or
(iii) refusing a protective order sought by the United States to
prevent the disclosure of classified information.
(B) Expedited consideration.-(i) In general.--An appeal taken pursuant to this paragraph,
either before or during trial, shall be expedited by the court of
appeals.
(ii) Appeals prior to trial.--If an appeal is of an order made prior
to trial, an appeal shall be taken not later than 14 days after the
decision or order appealed from, and the trial shall not
commence until the appeal is resolved.
(iii) Appeals during trial.--If an appeal is taken during trial, the
trial court shall adjourn the trial until the appeal is resolved,
and the court of appeals-(I) shall hear argument on such appeal not later than 4
days after the adjournment of the trial, excluding
intermediate weekends and holidays;
(II) may dispense with written briefs other than the
supporting materials previously submitted to the trial
court;
(III) shall render its decision not later than 4 days after
argument on appeal, excluding intermediate weekends
and holidays; and
(IV) may dispense with the issuance of a written opinion
in rendering its decision.
(C) Effect of ruling.--An interlocutory appeal and decision shall not
affect the right of the defendant, in a subsequent appeal from a final
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judgment, to claim as error reversal by the trial court on remand of a
ruling appealed from during trial.
(6) Construction.--Nothing in this subsection shall prevent the United States
from seeking protective orders or asserting privileges ordinarily available to
the United States to protect against the disclosure of classified information,
including the invocation of the military and State secrets privilege.
(g) Definitions.--As used in this section—
(1) the term “classified information” has the meaning given that term in
section 1(a) of the Classified Information Procedures Act (18 U.S.C. App.);
(2) the term “financial institution” has the same meaning as in section
5312(a)(2) of title 31, United States Code;
(3) the term “funds” includes coin or currency of the United States or any
other country, traveler's checks, personal checks, bank checks, money orders,
stocks, bonds, debentures, drafts, letters of credit, any other negotiable
instrument, and any electronic representation of any of the foregoing;
(4) the term “material support or resources” has the same meaning given that
term in section 2339A (including the definitions of “training” and “expert
advice or assistance” in that section);
(5) the term “Secretary” means the Secretary of the Treasury; and
(6) the term “terrorist organization” means an organization designated as a
terrorist organization under section 219 of the Immigration and Nationality
Act.
(h) Provision of personnel.--No person may be prosecuted under this section in
connection with the term “personnel” unless that person has knowingly provided,
attempted to provide, or conspired to provide a foreign terrorist organization with 1
or more individuals (who may be or include himself) to work under that terrorist
organization's direction or control or to organize, manage, supervise, or otherwise
direct the operation of that organization. Individuals who act entirely independently
of the foreign terrorist organization to advance its goals or objectives shall not be
considered to be working under the foreign terrorist organization's direction and
control.
(i) Rule of construction.--Nothing in this section shall be construed or applied so as
to abridge the exercise of rights guaranteed under the First Amendment to the
Constitution of the United States.
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(j) Exception.--No person may be prosecuted under this section in connection with
the term “personnel”, “training”, or “expert advice or assistance” if the provision of
that material support or resources to a foreign terrorist organization was approved
by the Secretary of State with the concurrence of the Attorney General. The
Secretary of State may not approve the provision of any material support that may
be used to carry out terrorist activity (as defined in section 212(a)(3)(B)(iii) of the
Immigration and Nationality Act)
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