No. C15-1359-1
In the
SUPREME COURT OF THE UNITED STATES
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 THE PETITIONER
Team 20
Counsel for Petitioner
QUESTIONS PRESENTED
I.
Whether it is improper to prosecute an individual under 26 U.S.C. §
5845(f)(3) where the individual had no intention of using the items as a
destructive device and where the items do not fall under the provisions
of the statute.
II.
Whether it is improper to prosecute an individual under 18 U.S.C. §
2339B where the individual attempted to receive advice from a
member of an organization she did not know was a designated foreign
terrorist organization, and where she did not intend to provide support
to that organization.
i PARTIES TO THE PROCEEDING
Petitioner, Emmaline Borne—the defendant in the United States
District Court for the Central District of New Tejas, and the Appellant before
the United States Court of Appeals for the Fourteenth Circuit—respectfully
submits this brief-on-the-merits in support of her request that this Court
reverse the judgment of the United States Court of Appeals for the
Fourteenth Circuit, and vacate her conviction.
ii TABLE OF CONTENTS
QUESTIONS PRESENTED ............................................................................. i
PARTIES TO THE PROCEEDING ................................................................ ii
TABLE OF AUTHORITIES ............................................................................ vi
OPINIONS BELOW .......................................................................................... 1
STATEMENT OF JURISDICTION ................................................................ 1
CONSTITUTIONAL AND STATUTORY PROVISIONS ............................ 1
STATEMENT OF THE CASE ......................................................................... 2
SUMMARY OF THE ARGUMENT ................................................................. 9
ARGUMENT..................................................................................................... 12
I.
BORNE’S CONVICTION UNDER 26 U.S.C. § 5845(f)(3)
MUST BE REVERSED. .................................................................... 12
A.
The Fourteenth Circuit Erred When It Did Not Properly
Weigh Borne’s Subjective Intent. ................................................. 12
1. A mens rea requirement is necessary in order to properly
enforce § 5845(f)(3). ................................................................ 13
2. The subjective standard is appropriate to enforce the
statute’s ultimate purpose. .................................................... 14
3. The objective standard interprets § 5845(f)(3) too
narrowly.................................................................................. 17
4. The Fourteenth Circuit misapplied the mixed standard
by ignoring exculpatory evidence of Borne’s subjective
intent. ..................................................................................... 19
iii B.
The Items in Borne’s Possession Do Not Meet the Statutory
Definitions Under § 5845(f)(3). ..................................................... 22
1. The combination of items were not designed or intended
for use as a weapon. ............................................................... 22
a. The 3D gun plans, contained on the USB drive, were
not a completed bomb. .................................................... 23
b. The Fourteenth Circuit erroneously interpreted §
5845(f)(3) to allow for prosecution even where the
combination of parts would not create a destructive
device. .............................................................................. 24
c. Any device created by the 3D gun plans would not be
functional, and therefore would not be a destructive
device under § 5845(f). .................................................... 25
2. The 3D gun plans were not a readily assembled
destructive device. .................................................................. 27
II. BORNE’S CONVICTION UNDER 18 U.S.C. § 2339B MUST
BE REVERSED. ................................................................................. 28
A.
Borne’s Conduct Was Not Criminal and the Evidence was
Insufficient to Sustain Her Conviction Under 18 U.S.C. §
2339B. ............................................................................................ 29
1. There was insufficient evidence that Borne attempted to
provide material support to Dixie Millions........................... 29
2. There was insufficient evidence that Borne conspired to
aid Dixie Millions. .................................................................. 32
3. The statute does not prohibit Borne's conduct. .................... 33
B.
Borne’s Conviction Violates the Fifth Amendment Because §
2339B is Vague As Applied to Her Particular Conduct. ............. 35
1. No reasonable person would read § 2339B to prohibit
Borne’s conduct. ..................................................................... 36
iv 2. The statute encourages arbitrary and speculative
enforcement because it fails to include a threshold
definition of what constitutes “material” support. ............... 39
C.
Convictions Under the Terms “Training” And “Expert Advice
Or Assistance” Violate The First Amendment. ........................... 40
1. The terms “training” and “expert advice or assistance”
are overbroad. ......................................................................... 41
2. The statute is unconstitutional as applied to Borne’s
particular conduct. ................................................................. 45
CONCLUSION .................................................................................................. 48
APPENDIX TABLE OF CONTENTS ............................................................... 49
APPENDIX A .......................................................................................... 50
APPENDIX B .......................................................................................... 51
APPENDIX C .......................................................................................... 53
v TABLE OF AUTHORITIES
SUPREME COURT:
Page
Apprendi v. New Jersey,
530 U.S. 466 (2000) ................................................................................. 14
Ayotte v. Planned Parenthood of Northern New England,
546 U.S. 320 (2006) ................................................................................. 44
Batnicki v. Vopper,
532 U.S. 514 (2001) ................................................................................. 44
Broadrick v. Oklahoma,
413 U.S. 601 (1973) ................................................................................. 44
Brockett v. Spokane Arcades, Inc.,
472 U.S. 491 (1984) ................................................................................. 44
Brown v. Entertainment Merchants Association,
131 S. Ct. 2729 (2011) ................................................................. 41, 45, 46
Citizens United v. Federal Election Commission,
558 U.S. 310 (2010) ................................................................................. 40
City of Houston, Texas v. Hill,
482 U.S. 451 (1987) ................................................................................. 42
Cohen v. California,
403 U.S. 15 (1971) ................................................................................... 43
Connally v. General Construction Co.,
269 U.S. 385 (1926) ................................................................................. 37
De Jonge v. Oregon,
299 U.S. 353 (1937) ................................................................................. 38
Highmark Inc. v. Allcare Health Management System, Inc.,
134 S. Ct. 1744 (2014) ............................................................................. 12
Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489 (1982) ................................................................................. 36
vi Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) ............................................................................. passim
In re Winship,
397 U.S. 358 (1970) ................................................................................. 30
Jackson v. Virginia,
443 U.S. 307 (1979) ................................................................................. 29
Johnson v. United States,
135 S. Ct. 2551 (2015) ....................................................................... 28, 35
Jordan v. De George,
341 U.S. 223 (1951) ................................................................................. 38
King v. Burwell,
135 S. Ct. 2480 (2015) ....................................................................... 12, 33
Kolender v. Lawson,
461 U.S. 352 (1983) ........................................................................... 35, 39
Lamont v. Postmaster General,
381 U.S. 301 (1965) ................................................................................. 43
McCullen v. Coakley,
134 S. Ct. 2518 (2014) ............................................................................. 41
Reed v. Town of Gilbert, Arizona,
135 S. Ct. 2218 (2015) ............................................................................. 40
Robinson v. Shell Oil Co.,
519 U.S. 337 (1997) ................................................................................. 36
Salve Regina College v. Russell,
499 U.S. 225 (1991) ................................................................................. 12
Smith v. Goguen,
415 U.S. 566 (1974) ........................................................................... 36, 38
Snyder v. Phelps,
562 U.S. 443 (2011) ................................................................................. 43
Stanley v. Georgia,
394 U.S. 557 (1969) ................................................................................. 46
vii Staples v. United States,
511 U.S. 600 (1994) ........................................................................... 13, 14
United States v. Alvarez,
132 S. Ct. 2537 (2012) ............................................................................. 45
United States v. Balint,
258 U.S. 250 (1922) ................................................................................. 14
United States v. Jimenez Recio,
537 U.S. 270 (2003) ................................................................................. 32
United States v. Resendiz-Ponce,
549 U.S. 102 (2007) ................................................................................. 30
United States v. Stevens,
559 U.S. 460 (2010) ........................................................................... 41, 45
United States v. Williams,
553 U.S. 285 (2008) ..................................................................... 36, 42, 43
Virginia v. Hicks,
539 U.S. 113 (2003) ..................................................................... 41, 42, 44
Washington State Grange v. Washington State Republican Party,
552 U.S. 442 (2008) ................................................................................. 41
Whitney v. California,
274 U.S. 357 (1927) ................................................................................. 47
FEDERAL COURTS OF APPEALS:
Arriaga v. Mukasey,
521 F.3d 219 (2d Cir. 2008) .................................................................... 38
Farrell v. Burke,
449 F.3d 470 (2d Cir. 2006) .................................................................... 40
Speet v. Schuette,
726 F.3d 867 (6th Cir. 2013) .................................................................. 41
United States v. Adkins,
743 F.3d 176 (7th Cir. 2014) .................................................................. 30
viii United States v. Al Kassar,
660 F.3d 108 (2d Cir. 2011) .................................................................... 30
United States v. Barlow,
568 F.3d 215 (5th Cir. 2009) .................................................................. 31
United States v. Cea,
914 F.2d 881 (7th Cir. 1990) .................................................................. 31
United States v. Farhane,
634 F.3d 127 (2d Cir. 2011) .............................................................. 29, 43
United States v. Fredman,
833 F.2d 837 (9th Cir. 1987) .................................................................. 16
United States v. Gonzalez-Monterroso,
745 F.3d 1237 (9th Cir. 2014) ................................................................ 31
United States v. Hammond,
371 F.3d 776 (11th Cir. 2004) ................................................................ 20
United States v. Hamrick,
43 F.3d 877 (4th Cir. 1995) .............................................................. 25, 26
United States v. Johnson,
152 F.3d 618 (7th Cir. 1998) ............................................................ 19, 20
United States v. La Cock,
366 F.3d 883 (10th Cir. 2004) ................................................................ 20
United States v. Lockett,
601 F.3d 837 (8th Cir. 2014) .................................................................. 32
United States v. Markley,
567 F.2d 523 (1st Cir. 1977) ................................................................... 18 United States v. Oba,
448 F.2d 892 (9th Cir. 1971) ...................................................... 14, 15, 16
United States v. Posnjak,
457 F.2d 1110 (2d Cir. 1972) ...................................................... 17, 18, 19
United States v. Ragusa,
664 F.2d 696 (8th Cir. 1981) .................................................................. 18
ix United States v. Rushcamp,
526 F.2d 1380 (6th Cir. 1975) ................................................................ 18
United States v. Seven Miscellaneous Firearms,
503 F.Supp. 565 (D.C. Cir. 1980) ........................................................... 18
United States v. Sylla,
790 F.3d 772 (7th Cir. 2015) .................................................................. 39
United States v. Urban,
140 F.3d 229 (3d Cir. 1998) .................................................................... 18
United States v. Uzenski,
434 F.3d 690 (4th Cir. 2006) .................................................................. 20
FEDERAL DISTRICT COURT:
United States v. Davis,
313 F.Supp 710 (D. Conn. 1970) ............................................................ 17
STATUTORY PROVISIONS:
26 U.S.C. § 5845(f) (2015) ......................................................................... passim
28 U.S.C. § 1254(1) (2015) ................................................................................... 1
18 U.S.C. § 2339A (2015) .......................................................................... passim
18 U.S.C. § 2339B (2015) .......................................................................... passim
Fed. R. Evid. 702 (2014)..................................................................................... 37
SECONDARY SOURCES:
Charles Doyle,
Cong. Research Serv., R41333, Terrorist Material
Support: An Overview of 18 U.S.C. 2339A and 2339B
1 (2010). ................................................................................................... 28
x Denver Nicks,
You’ll Never Guess the Real Name for a Hashtag,
TIME (June 13, 2014), http://time.com/2870942/
hashtag-oed-oxford-english-dictionary. ................................................. 21
xi OPINIONS BELOW
The opinion of the United States District Court for the Central District
of New Tejas is unreported. The opinion of the United States Court of
Appeals for the Fourteenth Circuit is in the Record (“R.”) at pages 2–27.
STATEMENT OF JURISDICTION
The Court of Appeals for the Fourteenth Circuit entered its decision on
October 1, 2015. R. at 2. This Court granted Petitioner’s timely writ for
certiorari. R. at 1. This Court has jurisdiction under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS
The First Amendment to the United States Constitution provides in
relevant part: “Congress shall make no law . . . abridging the freedom of
speech . . . or the right of the people to peaceably assemble . . . . ” U.S. CONST.
amend. I.
The Fifth Amendment to the United States Constitution provides in
relevant part: “No person shall be . . . deprived of life, liberty, or property
without due process of law . . . . ” U.S. CONST. amend. V.
This case involves the interpretation of 26 U.S.C. § 5845(f)(3), which
provides that:
The term ‘destructive device’ means . . . any combination of
parts either designed or intended for use in converting any
device into a destructive device . . . and from which a destructive
device shall be readily assembled. The term ‘destructive device’
shall not include any device which is neither designed nor
redesigned for use as a weapon . . . .
1 26 U.S.C. § 5845(f)(3) (2015) (a complete copy of the statute appears in
Appendix A).
This case also involves the interpretation of 18 U.S.C. § 2339B, which
provides that:
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 . . . To violate this paragraph, a person must have
knowledge that the organization is a designated terrorist
organization . . . .
18 U.S.C. § 2339B(a)(1) (2015) (a complete copy of the statute appears in
Appendix B).
STATEMENT OF THE CASE
I.
Emmaline Borne And Fiona Triton Apply To Technical Promise On October 13, 2011, petitioner, Emmaline Borne, and Fiona Triton,
two high school seniors from Harrisburg, New Tejas, met with their physics
teacher, Adalida Ascot, to discuss a pre-college study abroad program called
“Technical Promise.” R. at 2. Technical Promise was founded in 2001 by New
Tejas University and the University of Misthallery and targets students
interested in science, technology, engineering, and mathematics. R. at 2, 3.
Ascot was an original student and frequent advocate of the program
and she met with Borne and Triton individually as part of the program’s
application process. R. at 3. During these meetings, Triton expressed interest
in chemistry, and Borne expressed interest in computer programming, based
on her love of computer games. R. at 3, 4. Between November 2011 and
2 February 2012, Ascot tutored Borne in computer programming and spoke
with Borne about computer games, internet culture, and Borne’s career
interests. R. at 4. Borne’s parents believed Ascot was a good mentor and role
model for Borne. R. at 4.
On February 8, 2012, Borne and Triton were accepted into Technical
Promise. R. at 5. The program was set to begin on June 4, 2012, at the
University of Misthallery in Azran. R. at 5.
II.
Borne and Triton Prepare for Technical Promise
In the months preceding Technical Promise, Borne spent more time at
the Tritons’ home. R. at 4, 6. On April 3, 2012, Triton’s father bought a do-ityourself 3D printing kit and began developing a formula for a more flexible
and resilient plastic filament. R. at 6, 7. Borne was interested in the 3D
printer, and asked if she could help with an error that caused the printer to
create an imperfect curve. R. at 7. Borne, however, was unable to solve the
problem, so she asked Ascot for help, and allowed Ascot to complete the code
without her. R. at 7.
During the time they spent working on the curve code, Ascot and
Borne discussed current events relating to Clive Allen and “Dixie Millions.”
R. at 8. Ascot described Allen and Dixie Millions as virtuous “White Hat
Hackers” and explained that the group did good for the world. R. at 8.
Clive Allen is a computer hacker who, on November 22, 2011, released
documents that he obtained while working at the NSA. R. at 5. Soon after, he
3 was granted asylum in Azran, and the Azranian government stated that
attempts to capture him on Azranian soil would be viewed as an act of war.
R. at 6. In exchange, Allen revealed to the Azranian government that the
NSA recorded private conversations between the Azranian Ambassador to
the UN and the Azranian Prime Minister. R. at 6. The United States and
Azranian governments negotiated for Allen’s extradition, but ultimately,
could not reach an agreement. R. at 6. Allen released a video on March 20,
2012 announcing his retirement as the “Millions” half of the duo Dixie
Millions. R. at 6.
Dixie Millions is a hacker duo responsible for numerous data hacks on
government and business interests around the world. R. at 5. On December
30, 2011, the United States Secretary of State designated Dixie Millions a
foreign terrorist organization (FTO). R. at 5. Between December 2011 and
March 2012, Dixie Millions hacked numerous websites and released
controversial documents. R. at 5. Each of the hacks displayed the message,
“Dixie will make sure that millions follow Millions. We watch the Watchmen.
–Love, Dixie Millions.” R. at 6. In an effort to find “Dixie,” the other member
of Dixie Millions, United States authorities investigated Allen’s known
associates, which included his classmates at the University of Misthallery
from 1998 to 2002. R. at 6. Dixie’s identity remains unknown. R. at 6.
4 III.
Borne and Triton Prepare for Their Trip to Azran
Borne brought the completed curve code to the Tritons’ house on May
2, 2012 and told the Tritons that she created the code entirely on her own. R.
at 9. That evening, Borne and the Tritons installed the new code and printed
a test model, which came out flawlessly. R. at 9.
On May 3, 2012, while surfing the internet, Mr. Triton found designs
for a 3D-printed handgun, and downloaded the plans onto a gold USB drive.
R. at 9. Although Mr. Triton had no interest in weapons for personal use, he
saw potential value in creating a plastic filament that could withstand the
heat discharged by a handgun. R. at 9.
On May 4, 2012, Ascot encouraged Borne and Triton to bring their
projects to Azran for their Technical Promise professors to review. R. at 9.
Ascot expressed excitement for the girls’ trip, and told them to always wear
the “White Hat.” R. at 9.
On May 5, 2012, Borne and Mr. Triton tested their formulas by
designing and printing a 6½-inch tall, ½-inch diameter, 3D cylinder. R. at 10.
They stationed the cylinder on a thicker base to provide extra stability during
the printing process. R. at 10. It took twelve hours to print “essentially a
perfect cylinder.” R. at 10. Borne then asked Mr. Triton to leave the cylinder
on its base because it looked like a trophy. R. at 10. Mr. Triton agreed, and
gave Borne the trophy in exchange for her help. R. at 10.
5 In May 2012, Fiona Triton and her father were unable to perfect their
chemical formula, so she suggested bringing the formula to Azran for her
Technical Promise professors to review. R. at 11. After her father declined,
she secretly downloaded the formula onto a USB drive shaped like a cartoon
robot. R. at 11. She planned to bring the formula to Azran in an effort to
“help out her family.” R. at 11.
During this same time, Borne decided she wanted to become a “White
Hat Hacker” and a force for good in the universe. R. at 11. Borne began
researching Allen, whom she viewed as a great role model for White Hat
Hacking. R. at 11. While searching the internet, Borne deduced a pattern of
Allen’s recent locations and discovered that he frequented a café on the
University of Misthallery’s campus. R. at 12. The next day that fit this
pattern was June 5, 2012. R. at 12. Since Borne would be in Azran at that
time, she hoped to meet Allen, introduce herself, and get his advice on her
career path. R. at 11. Borne printed a picture of Allen’s recent disguise so she
would know what he looked like. R. at 12. She then set a reminder on her
phone, and titled the event “Meet Clive Allen at Café.” R. at 12.
On June 3, 2012, Borne and Triton packed for their trip. R. at 12.
Triton packed her clothes, toiletries, and the USB drive containing her
father’s plastic filament formula. R. at 12.
Borne packed her belongings into a duffle bag her family normally
used for camping. R. at 12. The bag contained a small pack of matches in its
6 interior pocket to be used in case of any camping emergencies. R. at 12. Borne
packed her clothes, toiletries, and hairspray to keep her hair stylish in
Azran’s high humidity. R. at 12. She also packed a purple USB drive
containing her modified curve code, the 3D cylinder, the picture of Allen, and
a spreadsheet of Allen’s locations. R. at 12, 13. She intended to use these
items to impress Allen and persuade him to give her advice. R. at 12.
Originally, the girls planned to travel to the airport separately, but
Borne’s grandmother got sick, so Borne’s mother arranged for her to ride with
the Tritons. R. at 13. The night before their departure, the girls talked about
their expectations for their upcoming trip: Triton wanted to learn how to
perfect her father’s formula, and Borne hoped to find a mentor. R. at 13.
IV.
Borne’s Arrest
On June 4, 2012, Officer Smith of the Harrisburg police stopped Mr.
Triton after he accidentally rolled through a stop sign on the way to the
airport. R. at 13. Officer Smith ran a routine records check and discovered
that Mr. Triton had been cited for speeding two years prior. R. at 14. There
was a warrant out for Mr. Triton’s arrest because his attorney failed to
properly handle the ticket, so Officer Smith arrested him. R. at 14.
While the girls waited for Mrs. Triton to pick them up and take them
to the airport, Borne’s cell phone displayed the reminder “Meet Clive Allen at
Café.” R. at 15. Officer Smith saw the reminder, and immediately recognized
Allen’s name from a memo indicating the FBI believed Allen had an associate
7 operating in the Harrisburg area. R. at 15. Officer Smith called for backup,
Mirandized both girls, and arrested them on suspicion of aiding and abetting
a known fugitive. R. at 15.
After obtaining warrants, the police searched the girls’ persons and the
Tritons’ car. R. at 16. In Fiona Triton’s luggage, the police found the robotshaped USB drive containing Mr. Triton’s formula. R. at 16. In Borne’s
luggage, the police found matches, hairspray, the 3D cylinder, the picture of
Allen, the spreadsheet of Allen’s locations, and the purple USB drive
containing the curve code. R. at 16. Lastly, the police found Mr. Triton’s gold
USB drive, which was in the car because he used it to create a playlist of the
girls’ favorite music as a surprise going away present. R. at 13. Although Mr.
Triton stated that he deleted the 3D gun plans in order to make room for the
music, when the police found the drive, it still contained the plans. R. at 16.
The FBI opened an investigation and discovered that, upon hearing of
the girls’ arrest, Ascot quit her job and fled the area. R. at 16. Ascot’s location
is still unknown. R. at 16.
V.
Proceedings Below
The United States Attorney filed charges against Borne, Fiona Triton,
and Mr. Triton. R. at 16. The Tritons agreed to plea bargains in exchange for
their cooperation with any investigations into Ascot, Allen, and Dixie
Millions. R. at 16. Conversely, Borne proclaimed that she and Ascot were
8 innocent, and she refused bail so that her case would move more quickly to
trial. R. at 17.
At trial, FBI agents testified that Borne desired to meet Allen, Dixie
Millions, and other various hacker groups in order to convince the groups not
to “ruin[ ] people’s lives.” R. at 17. The agents further stated that they
believed Ascot was “Dixie” of Dixie Millions, and that she had other students
who were mistakenly arrested as hackers. R. at 17. Borne testified that she
had no knowledge of Ascot’s alleged involvement with Dixie Millions. R. at
17.
Borne was convicted under 26 U.S.C. § 5845(f)(3) and 18 U.S.C. §
2339B. R. at 18. She received concurrent sentences—twelve months in prison
for the former charge, and fifteen years for the latter. R. at 18.
Borne appealed, and on October 1, 2015, the United States Court of
Appeals for the Fourteenth Circuit entered a 2–1 decision affirming her
convictions. R. at 2. Subsequently, this Court granted Borne’s petition for
writ of certiorari. R. at 1.
SUMMARY OF THE ARGUMENT
The Fourteenth Circuit improperly affirmed Borne’s convictions under
26 U.S.C. § 5845(f)(3) and 18 U.S.C. § 2339B. This Court should reverse the
judgment and vacate the convictions.
First, the Fourteenth Circuit did not properly weigh Borne’s subjective
intent when it determined that the items in her possession constituted a
9 destructive device. For conviction under § 5845(f)(3), this Court should
require the Government to prove mens rea in order to give the statute its full
and proper meaning. Without a mens rea requirement, the statute will
unfairly prosecute individuals, like Borne, who possess no culpable mental
state.
Once this Court decides that mens rea is required, the Court should
interpret the statute using subjective intent to avoid the narrow restrictions
of the objective standard, and more fairly take into account the individual’s
actual intent for the items. Borne prevails under the mixed standard and the
subjective standard because her subjective intent is given proper weight. The
Fourteenth Circuit misapplied the mixed standard when it failed to properly
consider Borne’s subjective intent.
Even if this Court decides that mens rea is not required and adopts the
objective standard, Borne’s conviction should be reversed. Borne did not
possess all necessary components to readily assemble a destructive device.
Section 5845(f)(3) does not apply to the combination of items Borne
possessed. The items were not designed or intended for use as a weapon.
Moreover, the items would not have functioned as a weapon, and could not
have been assembled into a weapon. Therefore, the items are not a
destructive device under the statute, and this Court should reverse the
conviction.
10 Second, Borne did not possess the requisite mental state to be
convicted under 18 U.S.C. § 2339B. Borne did not intend to provide material
support and there is no evidence that she knew Dixie Millions was a
designated FTO. Further, there is a plethora of evidence that rebuts the
existence of her involvement in an alleged conspiracy. This Court should
vacate Borne’s conviction because the Government failed to prove her guilt
beyond a reasonable doubt.
Alternatively, due process forbids prosecution of Borne under § 2339B
because the statute is vague as applied to her particular conduct. No ordinary
person would read § 2339B to criminalize her attempt to receive advice.
Borne was not an expert, and she was not in a position to teach or instruct
Allen. Additionally, the statute’s failure to define a threshold for “material”
support permitted the Government to arbitrarily prosecute Borne for conduct
that would not have aided Dixie Millions in any consequential way.
Finally, Borne’s conviction offends the First Amendment. The terms
“training” and “expert advice or assistance” impermissibly chill a substantial
amount of protected speech, and this Court should partially sever these terms
from the statute. At the very least, this Court should vacate Borne’s
conviction because, as applied to her attempted speech, § 2339B fails under
strict scrutiny. Borne’s conviction did not advance the Government’s interest
in thwarting terrorism because, even under the most speculative logic,
Borne’s conduct provided no support to Dixie Millions.
11 Accordingly, this Court should vacate Borne’s conviction under §
2339B because the evidence was insufficient to prove her guilt beyond a
reasonable doubt, and because her conviction ignores the liberties guaranteed
by the First and Fifth Amendments.
ARGUMENT
I.
BORNE’S CONVICTION UNDER 26 U.S.C. § 5845(f)(3) MUST BE
REVERSED.
The Fourteenth Circuit improperly construed 26 U.S.C. § 5845(f)(3)
and misapplied the mixed standard by failing to properly weigh Borne’s
subjective intent. Statutory interpretation is a question of law that requires
de novo review. King v. Burwell, 135 S. Ct. 2480, 2489 (2015); Highmark Inc.
v. Allcare Health Mgmt. Sys., Inc., 134 S. Ct. 1744, 1748 (2014). Under the de
novo standard, this Court owes no deference to the Fourteenth Circuit’s legal
analysis. Salve Regina College v. Russell, 499 U.S. 225, 238 (1991). This
Court should reverse the decision of the Fourteenth Circuit by reading the
statute to require a mens rea element, and accordingly, vacate the conviction.
A.
The Fourteenth Circuit Erred When It Did Not Properly
Weigh Borne’s Subjective Intent.
The Fourteenth Circuit erred when it misapplied the mixed standard,
and did not properly weigh Borne’s subjective intentions for the 3D gun
plans. The Circuit Courts of Appeals have adopted three different standards
in their interpretations of § 5845(f)(3): an objective standard, a mixed
standard, and a subjective standard. Under an objective standard, guilt is
12 based on the objective use of the items an individual possesses. Under a
subjective standard, the court examines an individual’s subjective intent to
determine if the items in possession are a destructive device. Finally, under a
mixed standard, the court first examines whether the items objectively
constitute a destructive device before weighing the individual’s subjective
intent to determine if the items are a destructive device.
Before settling on which standard to apply, this Court must determine
whether a mens rea requirement is warranted by statutory construction and
thus appropriate for enforcement.
1. A mens rea requirement is necessary in order to
properly enforce § 5845(f)(3).
Evidence of mens rea is necessary for prosecution under § 5845(f)(3).
Although this Court has not established the mens rea required under the
statue, its ruling in Staples v. United States is persuasive. 511 U.S. 600
(1994). In Staples, the Court determined the mens rea required under section
5861(d) of the National Firearms Act. Id. at 619. Despite the statute’s silence
as to mens rea, the Government was required to prove beyond a reasonable
doubt that the defendant knew the characteristics of a weapon in his
possession brought it within the statutory definition of a machine gun. Id. at
602. Thus, this Court construed the statute in light of the “background rules
of the common law,” and stated, “silence on this point by itself does not
necessarily suggest that Congress intended to dispense with a conventional
mens rea element.” Id. This Court noted a general common-law requirement
13 of mens rea exists even in statutes that are silent as to mens rea. Staples, 511
U.S. at 606 (citing United States v. Balint, 258 U.S. 250 (1922)). Without
congressional intent to the contrary, mens rea is a necessary element of a
crime, and offenses disposing of it are generally disfavored. Staples, 511 U.S.
at 606; see also Apprendi v. New Jersey, 530 U.S. 466, 493 (2000) (evaluating
whether defendant committed a hate crime and stating that a “defendant’s
intent in committing a crime is perhaps as close as one might hope to come to
a core criminal offense ‘element’ ”).
This Court should read § 5845(f)(3) of the National Firearms Act to
also require a mens rea element. The Fourteenth Circuit agreed that a mens
rea requirement must be present in the statute “in order to give it full
meaning.” R. at 19. Without a mens rea requirement, the statute could
unfairly prosecute individuals who happen to possess items that meet the
description in the statute. Furthermore, requiring the Government to prove
mens rea ensures due process. See Staples, 511 U.S. at 615.
2. The subjective standard is appropriate to enforce the
statute’s ultimate purpose.
The subjective standard is appropriate because it examines an
individual’s ultimate intent to determine whether an object constitutes a
“destructive device.” United States v. Oba, 448 F.2d 892, 893 (9th Cir. 1971).
Subjective intent is especially significant because the plain language of the
statute specifically mentions intent in its definition: “[t]he term ‘destructive
device’ means . . . any combination of parts either designed or intended for
14 use in converting any device into a destructive device . . . .” 26 U.S.C. §
5845(f)(3) (emphasis added). Where there is question as to the device’s
construction or ultimate utility as a destructive device, the individual’s
subjective intent is necessary to determine whether the items violate the
statute. See Oba, 448 F.2d at 894. The Ninth Circuit is the only circuit that
uses the subjective standard, and it limits its examination of subjective intent
to § 5845(f)(3).
The Fourteenth Circuit improperly dismissed the subjective standard
as “too simplistic to cover the threat of dangerous firearms.” R. at 19. The
subjective standard, however, does not alter the definitions under
subparagraphs (1) and (2), nor does it reduce the requirements of
subparagraph (3). 26 U.S.C. § 5845(f). In some cases, the subjective standard
serves to strengthen the statute. See Oba, 448 F.2d at 894. In Oba,
commercial dynamite, which on its own could have fallen outside the
definition of “destructive device,” fell under the statute based on the
possessor’s subjective intent. Id. at 894. The defendant admitted that his
intent was to “bomb and destroy the property of others.” Id. He further stated
that he transferred the dynamite to another person with instructions to
detonate the dynamite. Id. The Ninth Circuit used his admission of intent,
along with the language of the statute, to determine that the dynamite was a
destructive device. Id.
15 The subjective standard is superior because it prevents individuals
from escaping prosecution by way of technicality. Oba’s dynamite alone may
not have fallen under the statute, but his subjective intent to use the
dynamite in an anti-social manner made the dynamite a destructive device.
Conversely, in United States v. Fredman, the subjective standard prevented
prosecution of an innocent individual. 833 F.2d 837, 838 (9th Cir. 1987). In
that case, the defendant possessed component parts that were clearly
designed for an innocent use. Under the subjective standard, the Government
was required to show beyond a reasonable doubt that the possessor had
intended to use the parts as a weapon. Id. at 840. Because the Government
could not establish such intent, the Ninth Circuit reversed the conviction. Id.
Under a different standard, the Government may have prevailed and put an
innocent individual in jail.
The items in Borne’s possession did not meet the statutory definition of
a destructive device as defined in subparagraphs (1) and (2) of § 5845(f). The
3D gun plans, alone, are not a weapon under the statute. Furthermore, the
Government has the burden to negate beyond a reasonable doubt Borne’s
affirmative defense that the items in her possession were neither designed
nor redesigned for use as a weapon. See Oba, 448 F.2d at 894. This language
necessarily requires the Court to examine Borne’s intent in possessing the
gun plans. But, because Borne did not design the items in her possession for
use as a weapon, the statute does not apply.
16 3. The objective standard interprets § 5845(f)(3) too
narrowly.
The objective standard is inappropriate because it too narrowly
interprets § 5845(f)(3). Under an objective standard, the court determines
whether the component parts in an individual’s possession could objectively
constitute a destructive device. The objective standard does not broaden the
group of devices covered under the statute—the device, once fully assembled,
must still fall under the definitions in subparagraphs (1) or (2). United States
v. Posnjak, 457 F.2d 1110, 1116 (2d Cir. 1972). Rather, the objective standard
“merely
precludes
evasion
through
possession
of
the
unassembled
components instead of the assembled item.” Id. In addition, an individual
must possess all the necessary components in order for the items to qualify as
a destructive device. Id.
Although the objective standard attempts to maintain a narrow
interpretation of the statute, it risks opening the door to inappropriate
prosecutions. For example, an individual who innocuously possesses items
that could be assembled or used to create a destructive device could be
prosecuted under an objective standard interpretation, despite lacking the
intent to use the items as a weapon. The Second Circuit, which adopted the
objective standard, admitted that a person’s intention to create a destructive
device “may be important” where an individual has components that could be
destructive or innocently possessed. Posnjak, 457 F.2d at 1119. It cited, as an
example, a district court case where a person was found in possession of
17 bottles, rags, and a can of gasoline. Posnjak, 457 F.2d at 1119 (citing United
States v. Davis, 313 F.Supp 710 (1970)). The question in that case was
whether the individual intended to use those items to create a Molotov
cocktail, an incendiary bomb that qualifies as a destructive device. Posnjak,
457 F.2d at 1119. The individual’s subjective intent was a central issue of
that case, and the Second Circuit agreed that it was an important factor. Id.
In addition to the Second Circuit, the Circuit Courts of Appeals that
used the objective standard include the First, Third, Fifth, Sixth, Eighth, and
D.C. Circuits. See United States v. Markley, 567 F.2d 523, 527 (1st Cir. 1977);
United States v. Urban, 140 F.3d 229, 234 (3d Cir. 1998); United States v.
Rushcamp, 526 F.2d 1380, 1382 (6th Cir. 1975); United States v. Ragusa, 664
F.2d 696, 700 (8th Cir. 1981); United States v. Seven Miscellaneous Firearms,
503 F. Supp. 565, 572–73 (D.C. Cir. 1980).
Even if this Court adopts an objective standard, Borne should not have
been prosecuted under § 5845(f)(3). First, the 3D gun plans were not enough
to invoke the statute. In order to assemble a destructive device from the 3D
gun plans, Borne would have needed a 3D printer, which was not in her
possession at the time of her arrest. R. at 16, 21. “All of the necessary
components ‘from which a destructive device may be readily assembled’ must
be possessed in order to possess a ‘destructive device; under subparagraph
(3).” Posnjak, 457 F.2d at 1116. The 3D gun plans were not a destructive
device.
18 Further, even under the objective standard, Borne’s intent for the
items in question is important. See Posnjak, 457 F.2d. at 1119. The
Government offered evidence at trial that the other items in Borne’s
possession could be used to create a destructive device. R. at 18. This Court
still should look to Borne’s subjective intent for the ultimate use of those
items. See Posnjak, 457 F.2d at 1119. Borne intended to use the hairspray in
her hair, not in a destructive device. R. at 13. Borne had no intent to use the
matches in a destructive device; she did not even know the matches were in
her bag. R. at 12. And she had no intent to use her other toiletries to
assemble a destructive device; she packed those items for use while abroad.
R. at 12. Thus, Borne’s conviction was inappropriate and must be vacated.
4. The Fourteenth Circuit misapplied the mixed
standard by ignoring exculpatory evidence of Borne’s
subjective intent.
The Fourteenth Circuit misapplied the mixed standard by ignoring
exculpatory evidence of Borne’s subjective intent. Under a mixed standard,
the court first examines whether a device or combination of parts have
objective characteristics that bring them under the statute. United States v.
Johnson, 152 F.3d 618, 627 (7th Cir. 1998). “If the objective design of the
device or component parts indicates that the object may only be used as a
weapon, i.e., for no legitimate social or commercial purpose, then the inquiry
is at an end and subjective intent is not relevant.” Id. at 628. Where the
design is not dispositive, however, subjective intent is appropriate to
19 determine whether the device or its parts fit within the definition of
“destructive device” under subparagraph (3). Johnson, 152 F.3d at 627. The
mixed standard allows the statute to be applied in a “precise but flexible
manner,” properly accounting for objective violations of the statute, while
still precluding prosecution of innocent individuals. Id. at 627. The Fourth,
Seventh, Tenth, and Eleventh Circuits apply a mixed standard, and the
Second Circuit alluded to the importance of considering subjective intent. See
United States v. Uzenski, 434 F.3d 690, 712 n.4 (4th Cir. 2006) (noting that
subparagraph (3) of § 5845 requires an additional element of subjective
intent); United States v. La Cock, 366 F.3d 883, 889 (10th Cir. 2004) (stating
that subjective intent goes to affirmative defense that device was not
designed as weapon); United States v. Hammond, 371 F.3d 776, 780 (11th
Cir. 2004) (explaining that an explosive device is not a destructive device if it
was not designed for use as a weapon).
The Fourteenth Circuit improperly rejected Borne’s arguments under
the mixed standard. The 3D gun plans do not lead to the conclusion that they
may only be used as a weapon. There are certainly “legitimate social or
commercial purpose[s]” for the gun plans, and the other items found in
Borne’s possession. See Johnson, 152 F.3d at 628. The Fourteenth Circuit
acknowledged the social applications for the items in Borne’s possession, but
then dismissed their social use by inconceivably comparing them to an atomic
bomb. R. at 20. Without an intent to use the items dangerously, the mere
20 possibility that objects could be used in an anti-social manner should not be
enough for prosecution, let alone conviction, under § 5845(f)(3). The mixed
standard certainly recognizes this premise, but the Fourteenth Circuit failed
to properly apply it.
Under a correct application of the mixed standard, the Court should
consider evidence of Borne’s subjective intent. In its consideration of Borne’s
intent, the Fourteenth Circuit acknowledged the very real possibility that
Borne’s motivations were innocuous. R. at 20. Borne did not possess the items
in order to create a weapon; she intended to use them as a means to get the
approval of her role model. R. at 20. Still, the court went on to tenuously
impute Allen and Dixie Millions’s motivations on to Borne. R. at 20.
The Fourteenth Circuit also improperly determined that Borne had an
interest in “exploding guns” and “fully intended to turn over some of the
items to create [an exploding gun] to Mr. Allen and Dixie Millions.” R. at 20.
It partly based its determination on a Twitter message that Borne posted in
response to the gun-related death of a classmate. R. at 18. The message
stated, “[w]ith one wish, I wish all guns would blow up.#guncontrol.” R. at 18.
Borne’s use of the “guncontrol” hashtag1 indicates her disdain for destructive
weapons, not her support for them.
1 “Hashtag” is defined by the Oxford English Dictionary as “the symbol
deployed in front of a word or phrase on social media to loop the post into a
wider conversation on the topic.” Denver Nicks, You’ll Never Guess the Real
Name for a Hashtag, TIME (June 13, 2014) http://time.com/2870942/hashtagoed-oxford-english-dictionary. Borne’s use of an octothorp before the term
21 B.
The Items in Borne’s Possession Do Not Meet the
Statutory Definitions Under § 5845(f)(3).
The items found in Borne’s possession do not qualify as a destructive
device under § 5845(f)(3). The items were not “designed or intended for use”
as a destructive device or for conversion into a destructive device. 26 U.S.C. §
5845(f)(3). Furthermore, a destructive device could not be readily assembled
from the combination of items found with Borne. Id.
1. The combination of items were not designed or
intended for use as a weapon.
The combination of items found with Borne at the time of her arrest
were neither designed nor intended for use in converting any device into a
destructive device, as required by § 5845(f)(3). The Fourteenth Circuit
improperly found the 3D gun plans to be “a completed bomb designed to
cause death or serious bodily harm to the individual holding the device and
people in the user’s immediate vicinity.” R. at 21. This Court should not join
this leap in logic. First, the 3D gun plans were contained on a USB drive, and
there was no evidence introduced at trial to indicate that the USB drive itself
was a destructive device. R. at 16. Second, the Fourteenth Circuit misapplied
the statute by contending that the plans constitute a bomb because a
destructive device could be assembled “with the proper equipment.” R. at 21.
“gun control” indicates that she intended the message to display among other
messages with the same gun control hashtag. This emphasizes Borne’s desire
to increase awareness of the danger of weapons.
22 Finally, any 3D-printed gun created by the plans on the USB drive would not
be functional, and thus would not fall under the statute.
a. The 3D gun plans, contained on the USB drive, were not a
completed bomb.
The 3D gun plans found on the USB drive were not a completed bomb,
and do not qualify as a destructive device under § 5845(f). The Fourteenth
Circuit’s characterization of the 3D gun plans as a “completed bomb” was
wholly inaccurate. Further, if the gun plans were considered a completed
bomb, Borne would have been convicted under § 5845(f)(1) rather than §
5845(f)(3). Thus, the Fourteenth Circuit not only misapplied the law, but
based on its own argument, used the wrong section of the statute. R. at 21.
Subparagraph (1) does not list “3D gun plans” as one of the qualifying
destructive devices. 26 U.S.C. § 5845(f)(1). Rather, a clear reading of the
statute indicates that the only way for the gun plans to be a completed bomb
under subparagraph (1) is for them to be an “explosive, incendiary, or poison
gas” bomb or similar device. See 26 U.S.C. §§ 5845(f)(1)(A), (F). Digitally
stored gun plans are not explosive, incendiary, or poisonous. Under the
Fourteenth Circuit’s logic, an instruction manual containing the same
guidelines would invoke criminal liability. The law clearly does not go that
far. Instead, the statute requires the object to be one of the defined devices in
order for liability to attach. 26 U.S.C. § 5845(f).
23 b. The Fourteenth Circuit erroneously interpreted § 5845(f)(3)
to allow for prosecution even where the combination of
parts would not create a destructive device.
The Fourteenth Circuit erroneously determined that § 5845(f)(3)
allows for prosecution even when an individual does not possess all
component parts necessary to create, or convert objects into, a destructive
device. R. at 21. The Fourteenth Circuit dismissed the fact that the plans are
merely digital data based on an assumption that “the intended device could
be mass-produced in a matter of hours.” R. at 21. This interpretation,
however, fails to account for the fact that Borne did not possess a 3D printer
and did not intend to create a destructive device. R. at 21.
Without a 3D printer, a device could not be created from the gun plans.
Without every component part necessary to create a destructive device,
Borne’s prosecution under the statute is improper. Under each of the three
standards used by the Circuit Courts of Appeals, Borne’s mere possession of
gun plans is insufficient for prosecution. First, under the subjective standard,
no court would determine that Borne intended to use the plans to create a
destructive device. Second, Borne cannot be prosecuted under the objective
standard because the plans do not fall under any definition provided in §§
5845(f)(1) and (2). 26 U.S.C. §§ 5845(f)(1), (2). And third, under the mixed
standard, the gun plans do not objectively constitute a destructive device,
which concludes the inquiry. However, even if this Court continued the
24 inquiry under the mixed standard, it would find that Borne’s subjective
intent for the plans precludes prosecution.
c. Any device created by the 3D gun plans would not be
functional, and therefore would not be a destructive device
under § 5845(f).
Any device created by using the 3D gun plans would not be functional,
and therefore would not qualify as a destructive device under § 5845(f). The
Fourteenth Circuit stated that a device’s functionality has no bearing on its
analysis under the statute. R. at 21 (citing United States v. Hamrick, 43 F.3d
877 (4th Cir. 1995)). In Hamrick, a man sent a letter bomb to a United States
Attorney with the intention of killing the attorney. Hamrick, 43 F.3d at 879.
Although the bomb turned out to be dysfunctional, the Fourth Circuit still
found it to be a destructive device. Id. at 881. Hamrick is distinguishable
based not only on the objects in question, but also on the defendant’s intent in
creating the bomb.
First, the items in Hamrick were clearly designed to be a functional
bomb. Hamrick, 43 F.3d at 881 (describing a bomb comprised of a nine-volt
battery power source, steel wires, butane lighters, a detonator, an improvised
switch, and wrapped in aluminum foil). The ultimate construction of the
device was “too complete” to accept the defendant’s contentions that the
device was a “hoax.” Id. In addition, regardless of the device’s actual
functionality, its component parts still could have ignited and caused a
fireball, essentially functioning as a bomb. Id. at 884. This is distinguishable
25 from the gun plans found with Borne because the items in her possession
were not clearly designed to be a destructive device and, if a device was
created using the 3D gun plans, it would not have been functional. R. at 18.
The testimony that the device, if created, would “always blow up when fired”
reinforces the contention that these plans were for an academic, not an antisocial, use. R. at 18.
Next, the defendant in Hamrick made the bomb with intent to kill.
Hamrick, 43 F.3d at 885. This malicious intent was evidenced by the
defendant’s clear motive in sending the bomb, and by his statements
confirming his intent to kill the U.S. attorney responsible for his prosecution.
Id. at 885. Conversely, Borne did not demonstrate malicious intent. She did
not intend for the items to be used as, or converted into, a destructive device.
R. at 20. Borne did not demonstrate a desire to harm anyone. Instead, she
hoped to gain the approval of her role model. R. at 20.
This Court should weigh the functionality of the device with the intent
of its creator. Prosecuting Borne for possession of the items would be similar
to prosecuting an individual for possessing a toy gun. The evidence shows
that any device created from the plans would not function as a gun. This
precludes prosecution under subparagraph (2). See 26 U.S.C. § 5845(f)(2).
Also, Borne would not have been prosecuted under subparagraph (1) because
the items were not designed or intended for use as an explosive, incendiary,
or poison gas device. 26 U.S.C. § 5845(f)(1). Finally, the combination of parts
26 were not designed or intended for use in converting any device into a
destructive device as defined in subparagraphs (1) and (2), which precludes
prosecution under subparagraph (3). 26 U.S.C. § 5845(f)(3).
2. The 3D gun plans were not a readily assembled
destructive device.
The 3D gun plans were not a readily assembled destructive device. In
order to assemble a gun from the 3D gun plans, Borne would need a 3D
printer, which was not in her possession at the time of her arrest. R. at 16.
Furthermore, the record is silent as to whether possession of a 3D printer
would allow for a device to be readily assembled. The Fourteenth Circuit
contended that the device could be mass-produced in a matter of hours, but
gave no support for its speculation. Borne’s cylinder alone took twelve hours
to print—hardly a quick turnaround. R. at 10. Moreover, as discussed above,
any device created with a 3D printer would not have been a functional
weapon.
The other items found with Borne were not a readily assembled
destructive device. The Government offered testimony that the items with
Borne could be converted to a primitive pipe bomb. R. at 20–21. But, there is
no indication that Borne knew that these items could be used to create a
bomb, nor that Borne intended to use the items to create a bomb. To the
contrary, Borne intended to use the hairspray to maintain her hair in Azran’s
humid climate. R. at 13. She intended to use the plastic cylinder as a
demonstration of her code’s functionality. R. at 12. Further, there is no
27 indication that Borne knew the matches were in her bag. R. at 12. Any
conclusion that Borne wanted to make a pipe bomb is baseless.
Because Borne did not possess a destructive device under § 5845(f)(3),
her conviction must be reversed.
II.
BORNE’S CONVICTION UNDER 18 U.S.C. § 2339B MUST BE
REVERSED.
Borne’s conviction under 18 U.S.C. § 2339B, or “the material support
statute,” was improper. Congress created the material support statute in
1996 under the Antiterrorism and Effective Death Penalty Act.2 In reaction
to various constitutional concerns, Congress has amended the statute’s
language numerous times. Humanitarian Law Project v. Mukasey, 552 F.3d
916, 920–24 (9th Cir. 2009) (explaining the material support statute’s
complicated legislative and judicial history), aff’d in part, rev’d in part, 561
U.S. 1 (2010); see Johnson v. United States, 135 S. Ct. 2551, 2558 (2015)
(stating that the failure to clarify a statute after persistent efforts to do so is
some evidence of vagueness). As it stands now, the statute prohibits
individuals from knowingly providing material support to an organization the
person knows to be a foreign terrorist organization as designated by the
United States Secretary of State. 18 U.S.C. § 2339B(a)(1). To be convicted,
however, a person need not intend for the support to facilitate unlawful
activity. Holder v. Humanitarian Law Project, 561 U.S. 1, 17–18 (2010).
2 Charles Doyle, Cong. Research Serv., R41333, Terrorist Material Support:
An Overview of 18 U.S.C. 2339A and 2339B 1 (2010).
28 Material support is defined in numerous ways, such as providing “training”
or “expert advice or assistance,” which are the provisions most applicable to
Borne’s case. 18 U.S.C. §§ 2339A(b)(2), (3); see Appendix C.3 Yet, the evidence
was insufficient to show Borne violated these terms, and the terms are
unconstitutional as applied to Borne’s conduct.
A.
Borne’s Conduct Was Not Criminal and the Evidence was
Insufficient to Sustain Her Conviction Under 18 U.S.C. §
2339B.
The evidence was insufficient to prove Borne’s guilt beyond a
reasonable doubt. This Court should reverse the lower courts’ decisions and
vacate Borne’s conviction because, simply, § 2339B does not apply to her
conduct. This Court reviews a conviction de novo, viewing the evidence in a
light most favorable to the prosecution. United States v. Farhane, 634 F.3d
127, 144 (2d. Cir. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
A conviction must be reversed where the evidence is insufficient to convince a
rational trier fact of the existence of every element of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319 Borne’s conviction must be
reversed because the Government failed to prove she possessed the requisite
mental state to violate the statute.
1. There was insufficient evidence that Borne attempted
to provide material support to Dixie Millions.
Borne did not attempt to provide material support to Dixie Millions. To
prove attempt, the Government must show that Borne (1) intended to provide
3 Selected provisions of 18 U.S.C. 2339A are included at Appendix C.
29 material support, (2) to an organization she knew to be an FTO, and (3) took
a substantial step toward providing that support. United States v. ResendizPonce, 549 U.S. 102, 107 (2007) (defining the elements of attempt); United
States v. Al Kassar, 660 F.3d 108, 129 (2d Cir. 2011) (describing section
2339B’s “two express scienter requirements”). The Government must prove
each of these elements beyond a reasonable doubt. In re Winship, 397 U.S.
358, 361 (1970).
Borne did not specifically intend to offer material support in any of its
forms. United States v. Adkins, 743 F.3d 176, 183 (7th Cir. 2014) (“Attempt
requires the government to prove specific intent.”). Rather, Borne’s clear
intentions were to obtain Allen’s advice on her career path. R. at 11. At trial,
an FBI expert testified that Borne intended to seek out other hacker groups
as well, in order to convince those groups to keep data safe and refrain from
ruining people’s lives. R. at 17. The evidence unequivocally shows that Borne
intended to advance her own interests and to advocate against criminal
activity. “[I]t is absurd to think that Borne ha[d] any intention of supporting
Dixie Millions.” R. at 25 (Morgan, J., dissenting).
It is also not clear beyond a reasonable doubt that Borne knew of Dixie
Millions’s designation as an FTO. 18 U.S.C. § 2339B(a)(1); Humanitarian
Law Project, 561 U.S. at 16–17. At trial, Borne called Dixie Millions a “White
Hat Hacker” group, which is a term used to describe programmers who
increase data security. R. at 17. Moreover, Borne stated that she had no
30 knowledge of Ascot’s alleged involvement with Dixie Millions. R. at 17. It is
simply unclear, and thus reasonably doubtful, whether Borne subjectively
knew of Dixie Millions’s designation as an FTO.
Finally, Borne’s actions did not constitute a substantial step toward
the commission of a crime. A substantial step is conduct that goes beyond
mere preparation, and strongly corroborates the actor’s criminal intent.
United States v. Gonzalez-Monterroso, 745 F.3d 1237, 1243 (9th Cir. 2014);
United States v. Barlow, 568 F.3d 215, 219 (5th Cir. 2009). Borne’s actions
did not go beyond mere preparation—packing for her trip does not strongly
corroborate some criminal intent. Borne would likely have brought her
cylinder code to Azran under any circumstances because she wanted her
Technical Promise professors to review it and give her feedback. R. at 9. The
gun plans were not hers, and the data she collected on Allen’s locations is
immaterial. Packing these items should not be viewed as a substantial step
toward the commission of a crime because these items are not criminal.
Finally, there is no guarantee that Allen would have actually appeared at the
café Borne planned on visiting, so Borne’s attempt to meet him may have
never occurred. Borne’s innocuous intentions coupled with exceedingly early
police intervention prevents the finding of a substantial step. See United
States v. Cea, 914 F.2d 881, 888 (7th Cir. 1990).
Because the evidence is insufficient as to all the elements of attempt,
this Court should reverse Borne’s conviction.
31 2. There was insufficient evidence that Borne conspired
to aid Dixie Millions.
Borne did not agree to support Dixie Millions. To prove Borne’s guilt
under a conspiracy charge, the Government must show that she knowingly
entered into an agreement to commit the crime. United States v. Jimenez
Recio, 537 U.S. 270, 275 (2003). The Government, however, failed to prove
such an agreement beyond a reasonable doubt.
Borne did not agree to support Dixie Millions. First, Borne did not
conspire with Mr. Triton because he explicitly declined for his work to be
brought to Azran. R. at 11. Second, Borne did not conspire with Fiona Triton
because the evidence unequivocally demonstrates Fiona Triton’s intent to
bring her father’s chemical formula to her Technical Promise professors, and
not to Allen. R. at 11, 13. Finally, the evidence does not demonstrate beyond
a reasonable doubt that Borne and Ascot conspired to aid Dixie Millions.
Although these two collaborated to create the curve code, they never
discussed showing the code to Allen. R. at 7, 8. In fact, Ascot recommended
that Borne have her Technical Promise professors review the code. R. at 9.
Further, even if this Court finds Ascot manipulated Borne into bringing the
code to Allen, the evidence would still be insufficient to sustain a conspiracy
conviction because Borne clearly lacked knowledge of that agreement. R. at
17; see United States v. Lockett, 601 F.3d 837, 840 (8th Cir. 2014) (requiring
the government to prove the defendant’s knowledge of an agreement in order
32 to prove conspiracy). Without evidence of an unlawful agreement, Borne’s
conviction cannot stand.
3. The statute does not prohibit Borne’s conduct.
The statute does not prohibit Borne’s conduct. First, she engaged in
nothing more than independent, lawful action. Second, her attempts to
receive advice do not constitute training, advising and assisting, or joining an
FTO. This Court should reverse the conviction because applying § 2339B to
Borne’s conduct is an outrageous abuse of power. See King, 135 S. Ct. at 2489
(describing how this Court interprets a statute’s plain language in light of its
surrounding context).
The evidence does not show that Borne coordinated her activity with
Dixie Millions. At most, Borne engaged in lawful, independent advocacy.
Individuals who act entirely independent of an FTO do not violate the
statute. 18 U.S.C. § 2339B(h); Humanitarian Law Project, 561 U.S. at 23.
The evidence unambiguously shows Borne intended to meet Allen in pursuit
of her personal interests, and not in the interests of any organization. R. at
11. In fact, as stated above, it is clear that Borne was interested in
organizations other than Dixie Millions, and she intended to independently
persuade numerous hackers to only engage in White Hat Hacking. R. at 17.
Finally, Borne went to great lengths to gather enough information so that she
could find Allen and audition for his advice, thus demonstrating an absence
of coordination. If Borne had already coordinated a meeting with Allen, she
33 would not have spent her summer desperately searching the internet for
information on Allen’s locations. Therefore, even if this Court finds that
Borne possessed the requisite mental state, her actions unequivocally
amount to permissible, independent conduct.
Further, Borne’s conduct does not fall under the proscriptions of
“training,” “expert advice or assistance,” or “personnel.” 18 U.S.C. §§
2339A(b)(2), (3); 18 U.S.C. § 2339B(h). First, Borne did not attempt to “train”
Allen in any way. The statute defines “training” as “instruction or teaching
designed to impart a specific skill, as opposed to general knowledge.” 18
U.S.C. § 2339A(b)(2). Yet, Borne did not attempt to instruct or teach Allen
anything. Further, she did not possess a specific skill in which she could have
trained Allen. Borne is a high school graduate with interest in computer
games. R. at 3. Allen was employed by the NSA as an expert in database
design and information collection. R. at 5. Borne was not in a position to
teach Allen anything, and, in fact, she specifically intended to receive his
advice. R. at 11, 13.
The same logic applies to the term “expert advice or assistance,” which
is defined as “advice or assistance derived from scientific, technical or other
specialized knowledge.” 18 U.S.C. § 2339A(b)(3). Borne does not have more
than a high school education. R. at 2. The Government cannot even contend
that Borne possessed specialized knowledge of 3D printers because she was
unable to create the curve code on her own, as demonstrated when she asked
34 Ascot for help with the code. R. at 7, 8. It would be outrageous for this Court
to uphold Borne’s conviction under a theory that she was an expert.
Finally, there is no evidence that Borne intended or attempted to join
Dixie Millions. The statute prohibits an individual from attempting or
conspiring to work under an FTO’s organization or control, or to otherwise
direct the organization’s operation. 18 U.S.C. § 2339B(h). Borne cannot be
convicted for attempting to provide “personnel” to Dixie Millions when she
did not wish to join the organization and when she sought out nothing more
than advice on her own career. To hold otherwise would be an abuse of the
statutory framework.
Based on numerous holes in the evidence, this Court should reverse
Borne’s conviction.
B.
Borne’s Conviction Violates the Fifth Amendment
Because § 2339B is Vague As Applied to Her Particular
Conduct.
Alternatively, Borne’s conviction violates the Fifth Amendment
because § 2339B is vague as applied to her particular conduct. Even if this
Court finds the evidence was sufficient, it still must vacate the conviction
because it violates Borne’s due process rights.
Section 2339B is unconstitutionally vague, and Borne’s conviction
violates due process because the statute fails to give fair notice that it
prohibits Borne’s conduct and because it allowed for a conviction as arbitrary
as Borne’s. See Johnson v. United States, 135 S. Ct. at 2556 (citing Kolender
35 v. Lawson, 461 U.S. 352, 357–58 (1983)). To determine vagueness, the court
focuses on a statute’s plain meaning and context. Robinson v. Shell Oil Co.,
519 U.S. 337, 341 (1997). Further, § 2339B is subject to enhanced degrees of
clarity because it imposes criminal sanctions and interferes with free speech
and association rights. Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 499 (1982); Smith v. Goguen, 415 U.S. 566, 573 (1974). In light
of § 2339B’s insufficient clarity and indiscernible guidelines, Borne’s
conviction must be reversed.
1. No reasonable person would read the statute to
prohibit Borne’s conduct.
The statute does not clearly prohibit Borne’s conduct. No ordinary
person would read the terms “training” and “expert advice or assistance” to
prohibit Borne’s harmless attempt to seek advice. Also, the term
“organization” lacks clarity as it applies to individual members of an FTO.
See United States v. Williams, 553 U.S. 285, 304 (2008). Thus, this Court
must vacate Borne’s conviction because it impermissibly relies on language
that failed to put her on notice of the statute’s actual scope.
The statute’s distinction between general and specialized knowledge is
unclear because it relies on a subjective determination. 18 U.S.C. §§
2339A(b)(2), (3); see Humanitarian Law Project, 561 U.S. at 21 (“Of course,
the scope of the material-support statute may not be clear in every
application.”). The definition of “training” requires an individual to draw
impossible distinctions between what constitutes a “specific skill” as opposed
36 to permissible “general knowledge,” and the term “expert advice or
assistance” is vague for the same reasons. 18 U.S.C. §§ 2339A(b)(2), (3).
These terms illustrate the sort of hollow distinctions that require an
individual to guess as to the degree of knowledge needed to violate the
statute, and the vagueness doctrine prohibits this sort of guessing game.
Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926).
As stated above, Borne did not attempt to teach or instruct Allen, and
her attempts to demonstrate her own worth in order to obtain Allen’s advice
are not clearly prohibited under the statute. A reasonable person would not
believe Borne was in the position to “train” Allen in computer programming
or 3D printing. Nor would an ordinary person consider Borne—a high school
graduate—to be an expert on the topic. The statute is vague in this context
because it is unclear as to whom the term “specific skill” is measured against.
The difference between general and specialized knowledge relies upon the
beliefs of its possessor. Specifically, does the knowledge need to be based on
higher education? Does information become general knowledge once it is
published? Was Borne’s knowledge truly derived from scientific, technical, or
specialized knowledge when she found a majority of that information on the
internet? R. at 11, 12. At Borne’s trial, an FBI agent testified that any “bright
teenager” with a wi-fi connection could obtain this information. R. at 18.
Categorizing information as scientific, technical, or specialized knowledge
may work in a courtroom with a judge, where it can be tested against other
37 experts. But, the same cannot be said when these terms are arbitrarily
applied in real life. See Fed. R. Evid. 702 (governing expert testimony that is
derived from scientific, technical, or other specialized knowledge). Borne’s
conviction cannot rest on such an ambiguous distinction, especially when the
prohibition endangers her freedom of speech. Goguen, 415 U.S. at 573.
Additionally, the statute is vague as to whether the term “foreign
terrorist organization” includes a single member of the organization, acting in
an individual capacity. 18 U.S.C. § 2339B(a)(1). The statute delegates the
definition of an FTO to three other areas of the code, but none of those
sections indicate that contact with a single member amounts to support of an
entire organization. Further, prohibiting contact with a single member of an
organization threatens a person’s freedom to associate, demanding increased
clarity. Goguen, 415 U.S. at 573; see De Jonge v. Oregon, 299 U.S. 353, 364
(1937) (describing the freedom of association as “cognate” to the freedom of
speech). Therefore, if contact with a single member of an organization is
sufficient to invoke § 2339B’s criminal sanctions, Congress needed to
explicitly say so. Otherwise, a person is left clueless as to exactly when they
may be in violation of the statute. Arriaga v. Mukasey, 521 F.3d 219, 224–25
(2d Cir. 2008) (citing Jordan v. De George, 341 U.S. 223, 231 (1951))
(analyzing notice and asking whether the statutory language provides
adequate warning in light of its common understanding and practices); R. at
38 27 (Morgan, J., dissenting). Because Congress failed to make this clear,
Borne should not have been prosecuted.
2. The statute encourages arbitrary and speculative
enforcement because it fails to include a threshold
definition of what constitutes “material” support.
Borne’s attempted conduct was not clearly material to Dixie Millions.
A statute is vague where it encourages arbitrary and erratic arrests and
convictions. United States v. Sylla, 790 F.3d 772, 774 (7th Cir. 2015). The
statute’s standardless threshold of what amounts to “material” support
invites policemen, prosecutors, and juries to pursue their personal
predilections. Kolender, 461 U.S. at 358; see R. at 26 (Morgan, J., dissenting)
(“The prosecutor and the majority are so terrified of what could possibly
happen that they totally forget that criminal law is supposed to punish
people for what has happened.”) (emphasis in original). The plain meaning of
the word “material” requires the support to be “of real importance or of great
consequence to the FTO.” Humanitarian Law Project, 561 U.S. at 57 (Breyer,
J.,
dissenting)
(applying
the
dictionary
definition
of
“material”).
Characterizing Borne’s actions as material to Dixie Millions goes beyond logic
and relies upon boundless speculation. R. at 22–23.
This Court previously granted the Government extensive leeway to
enforce the material support statute. Humanitarian Law Project, 561 U.S. at
33–35. In that case, the plaintiffs’ proposed conduct could reasonably be seen
to effectuate the purposes and goals of two deadly groups. Conversely,
39 Borne’s attempts to obtain Allen’s advice would not have been consequential
for Dixie Millions as an organization. There is no evidence of Dixie Millions’s
ability to convert Borne’s information into a profitable enterprise. This type
of outlandish enforcement demonstrates the statute’s grant of “unfettered
latitude” that is prohibited under the vagueness doctrine. See Farrell v.
Burke, 449 F.3d 470, 494 (2d Cir. 2006). The statute’s lack of an ascertainable
standard will continue to lead to outrageous abuses by law enforcement
unless this Court draws a line in the sand.
This Court should define necessary limits for § 2339B and reverse
Borne’s conviction.
C.
The Terms “Training” And “Expert Advice Or Assistance”
Violate The First Amendment.
If this Court rejects Borne’s due process claim, it should still vacate the
conviction because it violates Borne’s First Amendment rights. The statute’s
proscriptions of “training” and “expert advice or assistance” are overbroad
and unconstitutional as applied to Borne’s particular conduct. The First
Amendment requires this Court to partially sever the terms “training” and
“expert advice or assistance” and vacate Borne’s conviction.
Content-based regulations of speech are generally prohibited under the
First Amendment. U.S. CONST. amend. I; see Reed v. Town of Gilbert, Ariz.,
135 S. Ct. 2218, 2226 (2015); see also Citizens United v. Fed. Election
Comm’n, 558 U.S. 310, 314 (2010). Section 2339B regulates speech based on
the degrees of knowledge it conveys, thus making it a content-based
40 regulation that is subject to strict scrutiny review. See McCullen v. Coakley,
134 S. Ct. 2518, 2530 (2014) (stating that the Court in Humanitarian Law
Project applied strict scrutiny to section 2339B’s content-based regulation of
speech); see also Brown v. Entm't Merchs. Ass'n, 131 S. Ct. at 2738 (applying
strict scrutiny to a content-based regulation of speech).
1. The terms “training” and “expert advice or assistance”
are overbroad.
The terms “training” and “expert advice or assistance” are overbroad
because they criminalize all educated speech, irrespective of the speech’s
value to the FTO in question. While these sections may have some legitimate
functions, their chilling effects on a substantial amount of protected speech
cannot be ignored.
A law is overbroad where a substantial number of its applications are
unconstitutional, judged in relation to the statute’s plainly legitimate sweep.
United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Wash. State
Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008)). An
overbreadth challenge is the exception to traditional facial challenges: to
succeed, a party need only show that a substantial number of the law’s
applications are invalid, rather than showing that all of its applications are
invalid. Stevens, 559 U.S. at 473; Speet v. Schuette, 726 F.3d 867, 872 (6th
Cir. 2013). Nevertheless, a finding of overbreadth invalidates the law in its
entirety, unless the Court can apply a limiting construction or partial
invalidation. Virginia v. Hicks, 539 U.S. 113, 118–19 (2003). In light of §
41 2339B’s criminal penalties, it must be analyzed with particular care. 18
U.S.C. § 2339B(a)(1); see Hicks, 539 U.S. at 119 (analyzing an overbreadth
challenge in light of the added concern of criminal sanctions); see also City of
Houston, Tex. v. Hill, 482 U.S. 451, 459 (1987) (stating that overbreadth
challenges to criminal statutes must be scrutinized with particular care).
To determine whether a law is overbroad, the Court must first
construe the statute at issue. Williams, 553 U.S. at 293 (2008). Section 2339B
allows prosecution of an individual who does not intend to promote unlawful
activity. Humanitarian Law Project, 561 U.S. at 16 (2010). Based on this
missing scienter requirement, the terms “training” and “expert advice or
assistance” criminalize all forms of educated conversation with a known FTO.
18 U.S.C. §§ 2339A(b)(2), (3).
The statute’s hollow attempts at self-restraint fail to narrow its broad
construction. As discussed above, the distinction between general and
specialized knowledge does not, in actuality, narrow the statute’s reach
because reasonable people could disagree on whether a piece of knowledge is
general or specialized. Similarly, the distinction between independent and
coordinated activity does not justify the statute’s limitations on protected
expression because speech is valuable only when it is heard. Lamont v.
Postmaster Gen., 381 U.S. 301, 308 (1965) (Brennan, J., concurring) (“The
dissemination of ideas can accomplish nothing if otherwise willing addressees
are not free to receive and consider them. It would be a barren marketplace of
42 ideas that had only sellers and no buyers.”). Thus, despite the statute’s
explicit consideration of the First Amendment, these terms must be broadly
construed to regulate all educated expression to an FTO. 18 U.S.C. §
2339B(i).
In light of this unavoidably broad construction, the terms “training”
and “expert advice or assistance” are not justified by their small amount of
legitimate applications. See Williams, 553 U.S. at 297 (stating that the
second step in an overbreadth analysis is to determine whether the statute
reaches a substantial amount of protected activity, judged in relation to its
plainly legitimate sweep). Restrictions on speech specifically intended to
advance an FTO’s purposes or goals are legitimate. See Humanitarian Law
Project, 561 U.S. at 40 (upholding § 2339B as it applied to training an FTO to
use international law, because such training could effectuate the FTO’s
terrorist goals and increase the group’s legitimacy); see also Farhane, 634
F.3d at 140 (upholding § 2339B as it applied to individuals providing martial
arts training to FTOs). But, when judged as a whole, the terms’
unconstitutional uses dwarf their legitimate applications.
This Court should refuse to allow Congress to broadly regulate speech
based on the identity of its listeners. This type of restriction has only been
permitted in limited situations where substantial privacy rights are at issue,
which is not the case here. See Snyder v. Phelps, 562 U.S. 443, 459 (2011)
(citing Cohen v. California, 403 U.S. 15, 21 (1971)). Such restriction on speech
43 is unjustifiable. The attenuated threat of a third-party listener cannot be a
green light for Congress to ignore the touchstones of the First Amendment.
See Batnicki v. Vopper, 532 U.S. 514, 529–32 (2001) (refusing to suppress the
freedom of speech based on the criminal conduct of a third-party listener
because “justification for any such novel burden on expression must be far
stronger than mere speculation about serious harms”) (internal quotations
omitted). The freedom of speech deserves a higher regard.
This Court should sever the terms “training” and “expert advice or
assistance” because an overbroad statute is invalid in all of its applications,
unless “a limiting construction or partial invalidation so narrows it as to
remove the seeming threat or deterrence to constitutionally protected
expression.” Hicks, 539 U.S. at 119 (quoting Broadrick, 413 U.S. at 615).
Because this Court previously rejected a limiting construction for § 2339B,
and because entirely invalidating the law would be burdensome to United
States national security, this Court should sever the statute’s impermissible
limitations on protected speech. 18 U.S.C. §§ 2339A(b)(2), (3); Ayotte v.
Planned Parenthood of N. New England, 546 U.S. 320, 329 (2006) (stating
that the normal rule requires partial, rather than facial, invalidation so that
a statute may be deemed invalid only as to those sections that reach too far);
Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 506 (1984) (holding that the
Court may partially sever unconstitutional portions of a statute where doing
so is consistent with legislative purpose of enacting the statute).
44 2. The statute is unconstitutional as applied to Borne’s
particular conduct.
As applied to Borne’s particular conduct, § 2339B is unconstitutional
because it violates her freedom of speech. The Government must prove that
Borne’s conviction satisfies strict scrutiny because Borne’s attempt to pursue
advice is not categorically excluded from protection, and the Government may
not create a new category of unprotected speech. Brown, 131 S. Ct. at 2738;
see Stevens, 599 U.S. at 468 (listing types of speech—obscene, defamatory,
inciting, integral to criminal conduct, fraudulent, and fighting words—that
have been categorically excluded from First Amendment protection). Borne’s
conviction should be reversed because her conviction does not, in any way,
advance the Government’s interest in thwarting terrorism.
Borne’s conviction fails under strict scrutiny. While the Government
has a concededly compelling interest in curbing terrorist aid, Borne’s
conviction is unconstitutional because it does not advance that interest, and
it is not narrowly tailored to that end. See United States v. Alvarez, 132 S. Ct.
2537, 2543 (2012) (explaining that recognition of the government’s compelling
interest does not conclude the analysis of a content-based regulation). Speech
may not be restricted more than is necessary to achieve the Government’s
stated goal. Reed, 542 U.S. at 666 (determining whether the challenged
regulation is the least restrictive means among available, effective
alternatives). Regulating Borne’s conduct under these circumstances leaves
her with no alternative means to pursue her lawful objectives. Borne planned
45 to bring the various codes and other information in order to persuade Allen
that she was worthy of his advice. R. at 12. Prohibiting her from doing so
prevented her from attracting Allen, leaving her with no alternative avenues
to engage in protected conduct. R. at 12; see also Stanley v. Georgia, 394 U.S.
557, 564 (1969) (“[T]he Constitution protects the right to receive information
and ideas.”).
Further, Borne’s conviction does not advance the Government’s
interests in any way. Her conduct is plainly distinguishable from the
plaintiffs’ speech in Humanitarian Law Project. There, this Court upheld §
2339B as it prohibited speech that would have legitimized two deadly FTOs
and strained U.S. relations with Turkey, an important American ally.
Humanitarian Law Project, 561 U.S. at 29–33. Conversely, Borne did not
attempt to advance the interests of Dixie Millions, rather, she merely sought
advice. R. at 12. Borne’s codes did not present a dangerous threat because
Dixie Millions does not engage in physically threatening activities and the
codes cannot be used to hack government or corporate firewalls. See Brown,
131 S. Ct. at 2733 (stating that the Constitution does not waiver due to ever
advancing technology, and that the basic principles of freedom of speech “do
not vary when a new and different medium for communication appears”).
These codes would not save Dixie Millions time and money. See
Humanitarian Law Project, 561 U.S. at 30–31. In reality, the amount of time
it would take Dixie Millions to create and distribute mass amounts of 3D-
46 printed objects would shift the group’s focus away from hacking. R. at 12
(noting that it takes 12 hours to print a 3D cylinder). Finally, Borne’s speech
would not have strained U.S. relations with its allies abroad. Dixie Millions is
not geographically confined, and, assuming that it is, the United States and
Azran do not have a friendly relationship. R. at 6. Section 2339B should be
used to thwart terrorism, and not to limit the curiosity of a teenage girl.
This Court cannot deny Borne protection under the First Amendment
based on an attenuated fear that her speech might effectuate the
dissemination of information. To allow this justification would be a scary
thing—far scarier than the threat of “hacktivist” terrorism. “Those who won
our independence believed that the final end of the state was to make men
free to develop their faculties, and that in its government the deliberative
forces should prevail over the arbitrary. They valued liberty both as an end
and as a means.” Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis,
J., concurring). The United States cannot promote freedom by jeopardizing
the very liberties that separate our nation from tyranny. The danger of
terrorism is not greater than the danger of a world without the freedom of
speech.
Accordingly, this Court must vacate Borne’s conviction, as it violates
the First Amendment.
47 CONCLUSION
For the foregoing reasons, this Court should reverse the Fourteenth
Circuit’s decision, and vacate the conviction.
Respectfully Submitted,
______________________________
Attorneys for Petitioner
48 APPENDIX TABLE OF CONTENTS
APPENDIX A ................................................................................................... 50
APPENDIX B ................................................................................................... 51
APPENDIX C ................................................................................................... 53 49 APPENDIX A
26 U.S.C. § 5845(f)
§ 5845(f) Definitions
(f) Destructive Device
The term “destructive device” means
(1) any explosive, incendiary, or poison gas
(A) bomb,
(B) grenade,
(C) rocket having a propellant 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.
50 APPENDIX B
18 U.S.C. § 2339B (2015)
§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.
(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
51 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.
(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).
52 APPENDIX C
18 U.S.C. § 2339A (2009)
§2339A. Providing material support to terrorists
(a) Offense.-- Whoever provides material support or resources or conceals or
disguises the nature, location, source, or ownership of material support or
resources, knowing or intending that they are to be used in preparation for,
or in carrying out, a violation of section 32, 37, 81, 175, 229, 351, 831, 842(m)
or (n), 844(f) or (i), 930(c), 956, 1091, 1114, 1116, 1203, 1361, 1362, 1363,
1366, 1751, 1992, 2155, 2156, 2280, 2281, 2332, 2332a, 2332b, 2332f, 2340A,
or 2442 of this title, section 236 of the Atomic Energy Act of 1954 (42 U.S.C.
2284), section 46502 or 60123(b) of title 49, or any offense listed in section
2332b(g)(5)(B) (except for sections 2339A and 2339B) or in preparation for, or
in carrying out, the concealment of an escape from the commission of any
such violation, or attempts or conspires to do such an act, shall be fined under
this title, imprisoned not more than 15 years, or both, and, if the death of any
person results, shall be imprisoned for any term of years or for life. A
violation of this section may be prosecuted in any Federal judicial district in
which the underlying offense was committed, or in any other Federal judicial
district as provided by law.
(b) Definitions.--As used in this section—
(1) the term “material support or resources” means any property,
tangible or intangible, or service, including currency or monetary
instruments or financial securities, financial services, lodging,
training, expert advice or assistance, safehouses, false documentation
or identification, communications equipment, facilities, weapons, lethal
substances, explosives, personnel (1 or more individuals who may be or
include oneself), and transportation, except medicine or religious
materials;
(2) the term “training” means instruction or teaching designed to
impart a specific skill, as opposed to general knowledge; and
(3) the term “expert advice or assistance” means advice or assistance
derived from scientific, technical or other specialized knowledge.
53