NO. C15-1359-1
IN THE
SUPREME COURT OF THE UNITED
STATES OF AMERICA
EMMALINE BORNE,
PETITIONER,
v.
UNITED STATES OF AMERICA,
RESPONDENT.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT
BRIEF FOR PETITIONER
TEAM # 23
COUNSEL FOR PETITIONER
STATEMENT OF THE ISSUES
1.
Whether Ms. Borne was improperly convicted under 26 U.S.C. § 5845(f)(3) for
possession of household items and 3D printer plans, despite her innocent
subjective intent.
2.
Whether Ms. Borne was improperly convicted under 18 U.S.C. § 2339B for
planning to show Mr. Allen computer coding in hopes of furthering her
education.
ii
TABLE OF CONTENTS
Page(s)
STATEMENT OF THE ISSUES ................................................................................... ii
TABLE OF AUTHORITIES ......................................................................................... vi
OPINIONS BELOW ...................................................................................................... 1
STATUTORY PROVISIONS ......................................................................................... 1
STATEMENT OF JURISDICTION .............................................................................. 1
STATEMENT OF THE CASE....................................................................................... 1
SUMMARY OF THE ARGUMENT .............................................................................. 6
ARGUMENT .................................................................................................................. 8
I.
MS. BORNE’S CONVICTION UNDER 26 U.S.C. § 5845(f)(3) WAS
IMPROPER BECAUSE MS. BORNE LACKED THE SUBJECTIVE
INTENT REQUIRED FOR CONVICTION. ...................................................... 8
A.
AN ANALYSIS OF THE CONGRESSIONAL INTENT UNDER
26 U.S.C. § 5845(f)(3) COMPELS INCLUSION OF A MENS REA
REQUIREMENT. ..................................................................................... 9
1. The nature of the National Firearms Act necessitates
inclusion of a mens rea requirement. ............................................ 10
2. The particular character of the items regulated necessitates
inclusion of a mens rea requirement. ............................................ 12
B.
THIS COURT SHOULD USE A SUBJECTIVE STANDARD
WHEN ANALYZING WHETHER MS. BORNE’S CONVICTION
UNDER 26 U.S.C. § 5845 (f)(3) IS PROPER......................................... 14
C.
EVEN IF THIS COURT FAILS TO APPLY A SUBJECTIVE
STANDARD, MS. BORNE DOES NOT MEET THE
QUALIFICATIONS FOR CONVICTION UNDER 26 U.S.C. §
5845(f)(3). ................................................................................................ 16
1. The items within Ms. Borne’s possession do not constitute a
“destructive device” 26 U.S.C. § 5845(f)(1) or (2) because they
fail to meet the objective standard. ............................................... 17
iii
a. Ms. Borne’s possession of hairspray, matches, and the
3D-printed cylinder does not meet the objective standard
under § 5845 because they cannot be combined to create
a military-type weapon or expel a projectile............................ 18
b. Ms. Borne’s possession of the curve code, formula, and
plans for a 3D-printed handgun do not qualify as a
weapon because they are merely plans. ................................... 20
2. Under the mixed standard, Ms. Borne’s analysis of the
subjective intent is required for unassembled items that
have the potential for innocent use. .............................................. 24
II.
MS. BORNE’S CONVICTION UNDER 18 U.S.C. § 2339B FOR
MAKING PLANS TO MEET WITH MR. ALLEN IS IMPROPER
BECAUSE IT INFRINGES UPON HER FIRST AND FIFTH
AMENDEMENT RIGHTS. ............................................................................... 27
A.
CONVICTING MS. BORNE FOR PLANNING TO SHARE HER
COMPUTER CODE INFRINGES UPON HER FIRST
AMENDMENT RIGHTS TO FREEDOM OF SPEECH AND
ASSOCIATION. ...................................................................................... 28
1. 18 U.S.C. § 2339B infringes upon Ms. Borne’s freedom of
speech because the sharing of computer code is protected
speech under the First Amendment. ............................................. 28
2. 18 U.S.C. § 2339B infringes upon Ms. Borne’s freedom to
associate because she only conveyed a peaceful and lawful
interest. ........................................................................................... 30
B.
18 U.S.C. § 2339B IS SUBJECT TO STRICT SCRUTINY
REVIEW BECAUSE IT RESTRICTS THE EXERCISE OF
FUNDAMENTAL FIRST AMENDMENT RIGHTS. ............................ 33
C.
18 U.S.C. § 2339B IS UNCONSTITUTIONAL BECAUSE IT
VIOLATES THE DUE PROCESS CLAUSE BOTH FACIALLY
AND AS APPLIED. ................................................................................ 35
1. 18 U.S.C. § 2339B is facially unconstitutional under the
overbreadth doctrine because it is overly broad. .......................... 36
iv
2. 18 U.S.C. § 2339B is unconstitutional both facially and as
applied because the statute does not provide individuals
with fair notice, and results in discretionary enforcement
standards. ....................................................................................... 39
a. 18 U.S.C. § 2339B is unconstitutional because it gails to
provide individuals of ordinary intelligence fair notice of
the prohibited conduct. ............................................................. 40
b. 18 U.S.C. § 2339B is unconstitutional as applied to Ms.
Borne because the statute lacks fair notice and results in
discriminatory enforcement standards. ................................... 41
CONCLUSION............................................................................................................. 45
APPENDICES
26 U.S.C. § 5845(a), (f) (2014) ................................................................................... A-1
18 U.S.C. § 2339A (2014) ........................................................................................... B-1
18 U.S.C. § 2339B (2014) ........................................................................................... B-2
v
TABLE OF AUTHORITIES
Page(s)
United States Supreme Court Cases
AT&T Mobility LLC v. Concepcion,
131 S. Ct. 1740 (2011) ................................................................................................ 8
Boy Scouts of Am. v. Dale,
530 U.S. 640 (2000) .................................................................................................. 33
Brandenburg v. Ohio,
395 U.S. 444 (1969) ............................................................................................ 30, 31
Brown v. Entm't Merchs. Ass'ns,
131 S. Ct. 2729 (2011) ........................................................................................ 27, 29
Carroll v. Princess Anne,
393 U.S. 175 (1968) .................................................................................................. 33
Citizens United v. Fed. Election Comm'n,
558 U.S. 310 (2010) ............................................................................................ 27, 33
City of Chicago v. Morales,
527 U.S. 41 (1999) ............................................................................................ passim
Connally v. Gen. Constr. Co.,
269 U.S. 385 (1926) .................................................................................................. 28
De Jonge v. Oregon,
299 U.S. 353 (1937) ............................................................................................ 30, 33
Dennis v. United States,
341 U.S. 494 (1951) .................................................................................................... 9
Dist. of Columbia v. Heller,
554 U.S. 570 (2008) .................................................................................................. 21
Dombrowski v. Pfister,
380 U.S. 479 (1965) .................................................................................................. 36
FCC v. Fox Television Stations, Inc.,
132 S. Ct. 2307 (2012) .................................................................................. 36, 40, 42
vi
Fed. Election Comm'n v. Wis. Right to Life, Inc.,
551 U.S. 449 (2007) .................................................................................................. 33
Gentil v. State Bar of Nev.,
501 U.S. 1030 (1991) ................................................................................................ 40
Grayned v. City of Rockford,
408 U.S. 104 (1972) ............................................................................................ 37, 40
Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489 (1982) ............................................................................................ 27, 40
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) ............................................................................................. passim
Joseph Burstyn, Inc. v. Wilson,
343 U.S. 495 (1952) .................................................................................................. 29
Kolender v. Lawson,
461 U.S. 352 (1983) .......................................................................................... passim
Liparota v. United States,
471 U.S. 419 (1985) .................................................................................................. 13
Los Angeles Police Dep't v. United Reporting Publ'g Corp.,
528 U.S. 32 (1999) .................................................................................................... 37
McDonald v. City of Chicago,
561 U.S. 742 (2010) .................................................................................................. 21
Morissette v. United States,
342 U.S. 246 (1952) .................................................................................................. 10
NAACP v. Claiborne Hardware Co.,
458 U.S. 886 (1982) ...................................................................................... 27, 30, 31
Noto v. United States,
367 U.S. 290 (1961) ............................................................................................ 31, 32
Ornelas v. United States,
517 U.S. 690 (1996) .................................................................................................... 8
Red Lion Broad. Co. v. Fed. Commc'ns Comm'n,
395 U.S. 367 (1969) .................................................................................................. 28
vii
Reno v. ACLU,
521 U.S. 844 (1997) ............................................................................................ 21, 28
Richmond Newspaper, Inc. v. Virginia,
448 U.S. 555 (1980) .................................................................................................. 21
Rizzo v. Goode,
423 U.S. 362 (1976) .................................................................................................. 31
Roberts v. U.S. Jaycees,
468 U.S. 609 (1984) ...................................................................................... 28, 30, 33
Roth v. United States,
354 U.S. 476 (1957) ...................................................................................... 21, 27, 29
Sable Commc'ns of Cal., Inc. v. FCC,
492 U.S. 115 (1989) ............................................................................................ 34, 40
San Antonio Indep. Sch. Dist. v. Rodriguez,
411 U.S. 1 (1973) ...................................................................................................... 33
Scales v. United States,
367 U.S. 203 (1961) .................................................................................................. 31
Shelton v. Tucker,
364 U.S. 479 (1960) .................................................................................................. 33
Smith v. Goguen,
415 U.S. 566 (1974) .................................................................................................. 40
Staples v. United States,
511 U.S. 600 (1994) .................................................................................. 9, 10, 12, 25
United States v. Balint,
258 U.S. 250 (1922) .......................................................................................... 8, 9, 10
United States v. Dottweich,
320 U.S. 277 (1943) .................................................................................................. 12
United States v. Freed,
401 U.S. 601 (1971) .................................................................................................. 12
United States v. Playboy Entm't Grp., Inc.,
529 U.S. 803 (2000) ............................................................................................ 33, 34
viii
United States v. U.S. Gypsum Co.,
438 U.S. 422 (1978) .................................................................................................. 10
United States v. Williams,
553 U.S. 285 (2008) .......................................................................................... passim
Lower Court Cases
Ballew v. United States,
389 F. Supp. 47 (D. Md. 1975) ................................................................................. 17
Burchfield v. United States,
544 F.2d 922 (7th Cir. 1976) .................................................................................... 24
Halberstam v. S.W. Daniel, Inc.,
No. 95-C3323 (E.D.N.Y. 1998) ................................................................................. 23
Humanitarian Law Project v. Reno,
205 F.3d 1130 (9th Cir. 2000) .................................................................................. 30
In re Charter Commc'ns, Inc., Subpoena Enf't Matter,
393 F.3d 771 (8th Cir. 2005) ...................................................................................... 8
United States v. Fredman,
833 F.2d 837 (9th Cir. 1987) ...................................................................................... 8
United States v. Hammond,
371 F.3d 776 (11th Cir. 2004) ................................................................ 14, 17, 18, 25
United States v. Homa,
608 F.2d 407 (10th Cir. 1979) .................................................................................. 24
United States v. Johnson,
152 F.3d 618 (7th Cir. 1998) .......................................................................... 9, 17, 24
United States v. Metzger,
778 F.2d 1195 (6th Cir. 1985) .................................................................................. 24
United States v. Oba,
448 F.2d 892 (9th Cir. 1971) .................................................................... 9, 10, 14, 15
ix
United States v. Peterson,
475 F.2d 806 (9th Cir. 1973) .................................................................................... 14
United States v. Podolsky,
625 F. Supp. 188 (N.D. Ill. 1985) ............................................................................. 19
United States v. Posnjak,
457 F.2d 1110 (2d Cir. 1972) ................................................................................ 9, 17
United States v. Reed,
726 F.2d 570 (9th Cir. 1937) .............................................................................. 18, 19
United States v. Ross,
458 F.2d 1144 (5th Cir. 1972) ............................................................................ 25, 26
United States v. Rushcamp,
526 F.2d 1380 (6th Cir. 1975) .................................................................................. 19
United States v. Seven Miscellaneous Firearms,
503 F. Supp. 565 (D.D.C. 1980) ............................................................................... 17
United States v. Spoerke,
568 F.3d 1236 (11th Cir. 2009) ................................................................................ 17
United States v. Urban,
140 F.3d 229 (3d Cir. 1998) ...................................................................................... 23
United States v. Uzenski,
434 F.3d 690 (4th Cir. 2006) .................................................................................... 17
United States v. Worstine,
808 F. Supp. 663 (N.D. Ind. 1992) ........................................................................... 17
Universal City Studios, Inc. v. Corley,
273 F.3d 429 (2d Cir. 2001)................................................................................ 21, 29
Constitutional Amendments
U.S. Const. art. I, § 8, cl. 8........................................................................................... 39
U.S. Const. amend. I .............................................................................................. 21, 27
U.S. Const. amend. II .................................................................................................. 21
x
U.S. Const. amend. V ............................................................................................. 27, 36
Statutory Provisions
18 U.S.C. § 921 (2014) ................................................................................................. 22
18 U.S.C. § 922(g) (2014) ............................................................................................. 22
18 U.S.C. § 2339A (2014) ....................................................................................... 42, 44
18 U.S.C. § 2339B (2014) ............................................................................................. 42
26 U.S.C. § 5845(f) (2014) ................................................................................ 14, 18, 22
28 U.S.C. § 1254(1) (2014) ............................................................................................. 1
Pub. L. No. 90-618 § 101, 82 Stat. 1213, 1213-14 (1968) ........................................... 11
Fed. R. Evid. 702 .......................................................................................................... 41
Legislative Materials
114 Cong. Rec. 26896 (1968)........................................................................................ 11
S. Rep. No. 86-1303 (1960) .................................................................................... 10, 11
S. Rep. No. 90-1577 (1968) .......................................................................................... 11
H.R. Rep. No. 90-1577 (1968) ...................................................................................... 11
Secondary Sources
Bureau of Alcohol, Tobacco, Firearms & Explosives, Firearms Technology,
www.atf.gov/firearms/faq/firearms-technology.html .............................................. 22
T. Markus Funk, Gun Control and Economic Discrimination: The Melting-Point
Case-in-Point, 85 J. Crim. L. & Criminology 764, 774 (1995) ................................ 22
xi
OPINIONS BELOW
The opinions of the United States District Court for the Central District of New
Tejas and the South East New Tejas District Court are unreported and not included
within the record. The United States Court of Appeals for the Fourteenth Circuit’s
opinion appears in the record at pages 2-27.
STATUTORY PROVISIONS
This case involves the application of 26 U.S.C. § 5845(f)(3) and 18 U.S.C. §
2339B. 26 U.S.C. § 5845(f)(3) provides in pertinent part:
The term “destructive device” means . . . any combination of parts either
designed or intended for use in converting any device into a destructive
device as defined in subparagraphs (1) and (2) and from which a
destructive device may be readily assembled.
26 U.S.C. § 5845(f)(3) (2014). See Appendix A.
18 U.S.C. § 2339B, in pertinent part, provides:
Whoever provides material support or resources [to terrorists] . . . shall
be fined under this title, imprisoned not more than 15 years, or both.
18 U.S.C § 2339B (2014). See Appendix B.
STATEMENT OF JURISDICTION
This case is on appeal from a judgment ordered by the United States Court of
Appeals for the Fourteenth Circuit. R. at 1. The Supreme Court of the United States
granted the petition for a writ of certiorari in the 2016 term of this Court. R. at 1.
This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1) (2012).
STATEMENT OF THE CASE
The Fourteenth Circuit improperly affirmed the lower court’s conviction of Ms.
1
Emmaline Borne (“Ms. Borne”) under 26 U.S.C. § 5845(f)(3) and 18 U.S.C. § 2339B.
R. at 24. Ms. Borne was sentenced to twelve months in prison under § 5845(f)(3) and
fifteen years in prison under § 2339B. R. at 18.
Factual Background
A. The “Technical Promise” Program
Ms. Borne and her classmate, Ms. Fiona Triton (“Ms. Triton”) were two out of
six students to be chosen for “Technical Promise,” a pre-college study abroad program
designed to promote science and technology. R. at 2-3. The “Technical Promise”
program is at the University of Misthallery in the European country of Azran. R. at
3. The girls had to meet with their physics teacher, Mrs. Adalida Ascot (“Mrs. Ascot”)
to discuss “Technical Promise” as part of the application process. R. at 2-3. Mrs.
Ascot and Mrs. Borne began meeting one-on-one to advance Ms. Borne’s developing
computer skills. R. at 4.
B. Dixie Millions
Clive Allen (“Mr. Allen”) worked for the National Security Agency (“NSA”) as
a consultant, using his specialization in database design and management to comb
through large databases. R. at 5. On November 22, 2011, Mr. Allen released millions
of NSA documents to Darknet, a network used by hacktivist groups for free global
communication and knowledge. R. at 5. Mr. Allen declared himself to be “Millions” of
Dixie Millions, a hacktivist duo, who planned to “set millions of secrets free.” R. at 5.
The United States Secretary of State declared Dixie Millions a foreign terrorist
organization (“FTO”), and law enforcement agencies unsuccessfully searched for Mr.
2
Allen. R. at 5. Mr. Allen announced on March 2, 2012, that he retired and planned
to remain in Azran. R. at 6.
C. Ms. Borne and Ms. Triton prepare for Azran
Ms. Triton’s father, Hershel Triton (“Mr. Triton”), bought a 3D printing kit to
test out his plastic filament formulas. R. at 6-7. As a chemical engineer, Mr. Triton
hoped to develop a better formula that would be flexible yet durable. R. at 7. While
visiting Ms. Triton, Ms. Borne saw the 3D printer and struck up a conversation with
Mr. Triton on how it worked. R. at 7. Mr. Triton explained how the machine worked
and the software problems he was having. R. at 7. Ms. Borne asked if she could help
solve some of the problems. R. at 7.
Ms. Borne discovered an error with the 3D printer coding that caused it to print
an imperfect curve. R. at 7. Ms. Borne decided to take the code to Mrs. Ascot for help.
R. at 7. While the two were working on the coding, they began talking about a recent
Dixie Millions hack. R. at 7. Ms. Borne asked Mrs. Ascot whether Dixie Millions was
considered “Black Hat Hackers,” and Mrs. Ascot replied that they were really “White
Hat Hackers.” R. at 8. Mrs. Ascot indicated she would need to take the code home to
finish the code. R. at 8. Once the code was finished, Ms. Borne contacted Mr. Triton
so that she could show it to him and try it out. R. at 8-9. The two tested the code and
printed out a cylinder test model, which came out flawlessly. R. at 9-10.
A few days later, Mr. Triton came across plans to print a handgun on a 3D
printer. R. at 9. Although he had no interest in firearms, he wanted to see if the plans
would work so he could develop a plastic filament that could withstand high heat. R.
3
at 9. If successful, Mr. Triton believed he could make a great deal of money and retire
earlier. R. at 9. He downloaded the plans onto a gold USB stick. R. at 9.
Mr. Triton and Ms. Triton, who was interested in chemical engineering, began
working on a stronger plastic filament formula. R. at 4, 10. Because Mr. Triton could
not figure out parts of the formula, Ms. Triton said she could take the formula with
her to Azran to help solve the problem. R. at 11. Although Mr. Triton declined, Ms.
Triton downloaded the formula onto her cartoon robot USB stick anyway. R. at 11.
D. Leaving for Azran
A month before leaving to study abroad, Mrs. Ascot met with Ms. Triton and
Ms. Borne for a final meeting. R. at 9. Around the same time, Ms. Borne began
researching Mr. Allen. R. at 11. Ms. Borne wanted to become a “White Hat Hacker”
and “become a force for good in the universe.” R. at 11. Ms. Borne hoped to find Mr.
Allen and “get his advice on her career path” while she was in Azran. R. at 11. Ms.
Borne planned to try to find Mr. Allen at the University of Misthallery Campus cafe.
R. at 12. She put a calendar event in her phone for June 5, 2012 to remind her of the
date. R. at 12. The reminder was labeled, “Meet Clive Allen at Café.” R. at 12.
Ms. Triton and Ms. Borne packed for their Azran trip. R. at 12. Ms. Borne
packed her clothes, toiletries, hairspray for the high humidity of Azran, her purple
thumb drive with her cylinder curve code, and the 3D-printed cylinder in the duffle
bag that her family used for camping. R. at 12. Unbeknownst to Ms. Borne, the bag
still contained a small pack of matches in a small, waterproof interior pocket of the
bag. R. at 12. Ms. Triton packed clothes, toiletries, and her cartoon robot USB drive
4
with her father’s plastic filament formula. R. at 12.
E. The Arrests
For the trip to the airport, Mr. Triton downloaded the girls’ favorite radio onto
his gold USB drive and plugged it into the car’s radio. R. at 13. On the way to the
airport, Mr. Triton accidentally rolled through a stop sign and was pulled over and
was arrested by the police officer due to unpaid speeding tickets. R. at 14. Mr. Triton
called his wife to take the girls to the airport. R. at 14. While waiting, the officer stood
by the car door where Ms. Borne was sitting. R. at 15. When Ms. Borne’s phone
flashed the reminder to “Meet Clive Allen at Café,” the police officer saw and
immediately arrested and Mirandized both Ms. Borne and Ms. Triton. R. at 15.
The girls were escorted to the police station, and the police officer obtained
search warrants. R. at 16. While searching Ms. Borne’s luggage the police officer
found matches, hairspray, the 3D-printed cylinder, and the purple USB stick
containing the curve code. R. at 16. The officers also found Mr. Triton’s plastic
filament formula on Ms. Triton’s cartoon robot USB stick and the 3D-printed
handgun plans on Mr. Triton’s gold USB stick. R. at 16.
The FBI arrived and charges were filed by the U.S. Attorney against Mr.
Triton, Ms. Triton, and Ms. Borne. R. at 16. Mr. Triton and Ms. Triton agreed to plea
bargains. R. at 16. Ms. Borne refused to take a plea bargain and maintains that she
is innocent. R. at 16.
F. Ms. Borne’s Trial
At trial, an FBI ballistics expert testified that the plastic filaments on the
5
cartoon robot USB, combined with the handgun plans on the gold USB stick, would
create a device that appeared to fire a bullet. R. at 18. However, the expert indicated
that once tested, the device would blow up. R. at 18. The expert further testified that
the matches, hairspray, 3D-printed cylinder, and other miscellaneous items within
Ms. Borne’s luggage could be used to make a bomb. R. at 18.
FBI agents testified regarding Ms. Borne’s Darknet activity, yet they admitted
Ms. Borne simply wanted to meet with other hacker groups to convince them to hack
only to reveal “malicious corporate and government lies that hurt people,” and not to
“exploit bank, financial, and government security flaws” that could potentially ruin
peoples’ lives. R. at 17. Ms. Borne’s Twitter account messages were also submitted
as evidence. R. at 18. The court allowed one message into evidence that was taken
out of the context of Ms. Borne’s desire for gun control which stated, “With one wish,
I wish all guns would blow up.#guncontrol.” R. at 18. The message appeared in
response to the gun-related death of a classmate. R. at 18.
SUMMARY OF THE ARGUMENT
Ms. Borne’s conviction under 26 U.S.C. § 5845(f)(3) was improper because Ms.
Borne lacked the mens rea required for conviction when the objective nature of the
unassembled component parts she possessed did not clearly indicate a destructive
purpose. Congressional intent compels inclusion of a mens rea based on the statute’s
nature in light of the purpose, language, and history of the National Firearm Act
(“NFA”). Congress created the NFA to limit the access of gangster-style weapons,
and the NFA was later amended to exclude military-type weapons.
6
Further,
Congressional silence regarding mens rea intent under § 5845(f)(3) favors
comportment to traditional principles of Anglo-American criminal jurisprudence,
which errs on the side of leniency.
Congress intended to target criminals with
extraordinarily dangerous firearms, not seventeen-year-old girls with hairspray and
computer codes.
Although there is a circuit split surrounding the mens rea standard applicable
under § 5845(f)(3), a subjective standard avoids the unjust prosecution of innocent
activity. Unlike the objective standard, the subjective standard does not punish
individuals based on the potential of the device. However, even if the mixed standard
is applied—which includes both objective and subjective standards—Ms. Borne’s
conviction under § 5845(f)(3) was still improper because the unassembled component
parts have innocent social purposes, and the coding and handgun plans are subject
to First and Second Amendment protection.
Ms. Borne’s conviction under 18 U.S.C. § 2339B was improper because Ms.
Borne’s plan to meet with Mr. Allen to show him her coding knowledge is
unconstitutional under the First and Fifth Amendments. Prohibiting Ms. Borne from
sharing computer coding with Mr. Allen infringes on her rights to freedom of speech
and association under the First Amendment.
Section 2339B is a content-based
restriction that impedes upon Ms. Borne’s liberties even when she has no intent to
further the aims of “Dixie Millions.” Additionally, the statute fails strict scrutiny
because it is overly broad.
Ms. Borne’s conviction under § 2339B violates the Due Process Clause of the
7
Fifth Amendment because it is unconstitutional, both facially and as applied to Ms.
Borne’s circumstances. The statute fails the overbreadth doctrine because § 2339B
has a broad scope that limits an individual’s protected expression of speech with
social value. In addition, § 2339B is unconstitutional facially and as applied to Ms.
Borne because it fails to put a person of ordinary intelligence on fair notice that the
conduct proscribed is prohibited.
Further, the statute results in discriminatory
enforcement standards. The convictions under 26 U.S.C. § 5845(f)(3) and 18 U.S.C.
§ 2339B improperly sentence Ms. Borne to fifteen years in prison and violate
constitutionally-protected liberties.
ARGUMENT
Issues that present a question of law are reviewed de novo. AT&T Mobility
LLC v. Concepcion, 131 S. Ct. 1740, 1752 (2011); Ornelas v. United States, 517 U.S.
690, 699 (1996). In determining questions of statutory interpretation, the standard of
review is de novo. In re Charter Commc’ns, Inc., Subpoena Enf’t Matter, 393 F.3d
771, 775 (8th Cir. 2005).
I.
MS. BORNE’S CONVICTION UNDER 26 U.S.C. § 5845(f)(3) WAS
IMPROPER BECAUSE MS. BORNE LACKED THE SUBJECTIVE INTENT
REQUIRED FOR CONVICTION.
Ms. Borne’s conviction under 26 U.S.C. § 5845(f)(3) was improper because Ms.
Borne lacked the subjective intent necessary to convert the items found in her
possession into a destructive device under the statute.
Mens rea has been a
requirement of common law rule that is “followed in regard to statutory crimes even
where the statutory definition did not in terms include it.” United States v. Balint,
8
258 U.S. 250, 251-52 (1922). Although § 5845 is silent as to a mens rea requirement,
the silence of the statute does not “suggest that Congress intended to dispense with
a conventional mens rea element.” Staples v. United States, 511 U.S. 600, 605 (1994)
(citing Balint, 258 U.S. at 251). “The existence of mens rea is the rule of, rather than
the exception to, the principles of Anglo-American criminal jurisprudence.” Dennis v
United States, 341 U.S. 494, 500 (1951). To depart from these traditional principles,
there must be “some indication of congressional intent.” Staples, 511 U.S. at 606.
Absent congressional intent to dispense with a mens rea requirement, courts will
read the statute as requiring that “the defendant know the facts that make his [or
her] conduct illegal.” Id. at 605.
In consideration of this common law mens rea requirement, courts favor
incorporation of a mens rea requirement under § 5845(f)(3). See e.g., United States v.
Oba, 448 F.2d 892, 894 (9th Cir. 1971). While many courts are in agreement that
mens rea is necessary under § 5843(f)(3), a circuit split developed regarding which
standard should apply: the subjective standard, the objective standard, or the mixed
standard. See United States v. Johnson, 152 F.3d 618 (7th Cir. 1998); United States
v. Posnjak, 457 F.2d 1110 (2d Cir. 1972); Oba, 448 F.2d 892. Ms. Borne’s subjective
intent should be considered in this case in light of the weight this Court places on
mens rea.
A.
AN ANALYSIS OF THE CONGRESSIONAL INTENT UNDER 26
U.S.C. § 5845(f)(3) COMPELS INCLUSION OF A MENS REA
REQUIREMENT.
This Court should include a mens rea requirement when considering Ms.
9
Borne’s conviction under § 5845(f)(3) because the congressional intent behind the
statute favors inclusion of a mens rea requirement. To determine the mens rea
requirement for a statute, this Court “must construe the statute in light of the
background rules of the common law . . . in which the requirement of some mens rea
for a crime is firmly embedded.” Staples, 511 U.S. at 605 (citing United States v. U.S.
Gypsum Co., 438 U.S. 422, 436-37 (1978)).
This Court includes a mens rea
requirement for criminal offenses unless the nature of the statute and the particular
character of the items regulated indicate a divergence from this conventional
requirement. Id. at 607 (citing Morissette v. United States, 342 U.S. 246, 252-60
(1952)). An analysis of the nature of the statute, as well as the character of the items
regulated, compels the inclusion of a mens rea requirement.
1. The nature of the National Firearms Act necessitates inclusion of a
mens rea requirement.
An analysis of the purpose, language, and history of the NFA shows that the
congressional intent surrounding § 5845(f)(3) requires the court to consider mens rea.
Oba, 448 F.2d at 897; see also Staples, 511 U.S. at 607. In order to determine what
mental state is required for the commission of a crime, courts look to Congress’ intent
in creating the statute. Balint, 258 U.S. at 253; see also Staples, 511 U.S. at 604.
In light of the rising threat of gangsters in the early 1930s, such as John
Dillinger, Bonnie and Clyde, and Al Capone, Congress enacted the NFA with the
primary purpose to make “it more difficult for the gangster element to obtain certain
types of weapons.” S. Rep. No. 86-1303 (1960). Congress passed the NFA as a tax on
various weapons with the main target being weapons “used primarily by the
10
gangster-type element.” Id. These weapons included machine guns and sawed-off
rifles and shotguns, which had no legitimate private or sporting use. Id. The goal
was to target criminals. Id.
The Gun Control Act of 1968 (“GCA”) had a similar goal and broadened the
NFA by adding “destructive device” into the definition of “firearm.” H.R. Rep. No. 901577 (1968). The addition of “destructive device” was largely due to the influx of
surplus military weapons from other countries after World War II. S. Rep. No. 901577 (1968). This addition was intended to target military-type weapons with no
appropriate private use, such as rockets, bazookas, and other devices that are
“primarily weapons of war.”1
The GCA, and its amendments to the NFA, were tailored towards fighting
crime and violence without placing an undue burden on law-abiding citizens. See Pub.
L. No. 90-618 § 101, 82 Stat. 1213, 1213-14 (1968) (“[T]his title is not intended to
discourage or eliminate the private ownership or use of firearms by law-abiding
citizens for lawful purposes.”). The legislative history of the NFA and the GCA
illustrate that Congress’ intended targets were criminals—individuals who sought to
use extraordinarily dangerous firearms—and not average citizens. This type of law
would necessarily require a mens rea component for prosecution of a crime under the
NFA and GCA.
“There is universal agreement that rockets, bazookas, antitank guns, heavy field artillery, and the
like should be strictly controlled, for there are no legitimate sporting uses for these weapons. Since
1934, automatic weapons, such as machine guns and sawed-off rifles and sawed-off shotguns have
been effectively regulated. * * * [D]estructive devices would be placed within this regulatory
framework.” 114 Cong. Rec. 26896 (1968) (statement of Sen. Hruska regarding the addition of
“destructive device”).
1
11
2. The particular character of the items regulated necessitates
inclusion of a mens rea requirement.
There is a mens rea requirement under § 5845(f) when the individual is
unaware of the particular character of the items regulated. Courts may construe
congressional silence within the statute as eliminating a mens rea requirement only
in cases where “public welfare” or “regulatory” offenses are implicated, thereby
imposing “a form of strict criminal liability.” Staples, 511 U.S. at 606. The particular
character of the regulated items determines whether the statute includes a “public
welfare” or “regulatory” offense. Id. This Court established that prosecution under
firearm-related statutes requires the defendant’s knowledge that the character of the
firearm at issue is a danger to the public. Id. (quoting United States v. Dottweich,
320 U.S. 277, 281 (1943)); United States v. Freed, 401 U.S. 601, 609 (1971).
In Staples v. United States, this Court considered whether silence within the
statute should be interpreted to include a mens rea requirement when the defendant
was charged with possession of an automatic weapon, but was unaware of the
firearm’s automatic firing capabilities. Staples, 511 U.S. at 604. The Government
argued that the statute encompassed a “public welfare” offense because of the
inherent threat automatic firearms pose to the public and that, therefore, the owner
of such weapons should be aware of the “probability of regulation,” rendering no mens
rea requirement necessary. Id. at 609-10. This Court disagreed, however, and held
that, although firearms have destructive potential, individuals can own them in
“perfect innocence,” and therefore the potential destructiveness cannot put the owner
on notice of regulation without “proof of knowledge of a weapon’s characteristics.” Id.
12
at 611-12. This Court held that strict criminal liability for possession—without
knowledge of a weapon’s destructive potential—would “criminalize a broad range of
apparently innocent conduct.” Id. at 610 (quoting Liparota v. United States, 471 U.S.
419, 426 (1985)).
In Staples, the character of the firearm, its capability of firing automatically,
was essential to the Court’s determination of whether knowledge of the
characteristics was necessary for conviction. Id. at 607-08. The Court contrasted
preceding cases, stating that unlike “the selling of dangerous drugs at issue in Balint
or the possession of hand grenades considered in Freed, private ownership of guns in
this country has enjoyed a long tradition of being entirely lawful conduct.” Id. at 601
(citing Balint, 258 U.S. at 250; Freed, 401 U.S. at 601). The Court held that imposing
strict criminal liability would “impose criminal sanctions on a class of persons whose
mental state—ignorance of the characteristics of weapons in their possession—makes
their actions entirely innocent.” Id. The Court firmly concluded that, “[h]ad Congress
intended to make outlaws of such citizens, it would have spoken more clearly to that
effect.” Id.
This case parallels Staples, yet trades the automatic firearm capabilities for
explosive device capabilities—both of which are regulated under § 5845. Here, within
Ms. Borne’s luggage packed for a semester abroad, the Government picked out and
identified a collection of items that, if assembled and lit, could result in an explosion.
Ms. Borne is charged with possessing a combination of parts that could be used to
convert the items into a pipe bomb: hairspray, matches from a camping trip, and a
13
3D-printed cylinder trophy.
The possession of these items separately, like the
longstanding private ownership rights of guns, is lawful. While this Court should
maintain strict criminal liability to protect the public through knowledge of
possession of an unauthorized firearm, condemning the innocent when the public is
in no danger of harm promotes bad precedent.
An individual unaware of the
potentially dangerous nature of a device would not be a threat to the public. The
reasoning
in
Staples, as well as long-standing Anglo-American criminal
jurisprudence requiring mens rea, errs on the side of leniency in prosecution when
the potential to convict innocents is at hand. Accordingly, this Court should follow
the precedent set in Staples, which requires knowledge of the characteristics of the
device for conviction.
B.
THIS COURT SHOULD USE A SUBJECTIVE STANDARD WHEN
ANALYZING WHETHER MS. BORNE’S CONVICTION UNDER 26
U.S.C. § 5845 (f)(3) IS PROPER.
Although there is a circuit split surrounding the appropriate mens rea
standard applicable under § 5845(f)(3), this Court should consider Ms. Borne’s
subjective intent. Various courts have applied the subjective standard, which allows
for a device, or a collection of unassembled component parts, to be considered a
destructive device depending on the defendant’s intended use of such items. United
States v. Hammond, 371 F.3d 776, 780 (11th Cir. 2004); United States v. Peterson,
475 F.2d 806 (9th Cir. 1973); Oba, 448 F.2d at 894. Under the subjective approach, “a
device may be ‘converted’ into a destructive device” under the statute “by way of
‘design or intent.’” Oba, 448 F.2d at 894 (citing § 5845(f)(3)). The subjective approach
14
utilizes the statute’s inclusion of the “designed or intended” purpose of the device as
an indication that the statute compels a mens rea requirement and considers an
individual’s intent to avoid prosecution of innocent activity. Id.
In United States v. Oba, the defendant constructed a device out of seven sticks
of dynamite wrapped in copper wire, which contained a fuse and blasting caps, and
admitted that he intended to use that device to bomb and destroy the property of
others. Id. at 893. The court utilized a subjective standard and relied on the nature
of the device and its intended purpose to analyze whether the defendant was guilty
of possessing and transferring a destructive device as outlined in § 5845(f). Id. at
894. The court held that the defendant’s admission that he wanted to bomb and
destroy the property of others established that, “by way of ‘design or intent,’” the
device was a destructive device under § 5845(f). Id. In addition, it was acknowledged
that “the statute is aimed at the kind of evil articles it describes,” not at “evil
perversions” of innocent items “without alteration of their nature or mode of
operation.” Id. at 896. (Browning, J., dissenting).
The “risk of anti-social use”
associated with the items classified in § 5845(f) is not inherent in the articles
themselves, but “in the potential perversion of their use,” where “[t]he potential is
rather that of the parked motor vehicle that can be made a lethal weapon by
perversion of its purpose.” Id.
Similar to Oba, this Court should apply the subjective standard. This Court
should consider Ms. Borne’s innocent subjective intent to determine that the items
she possessed did not constitute a “destructive device.” Failure to consider intent
15
could turn the innocent possession of unassembled common household items into
what the court considers a bomb. In the present case, Ms. Borne had no intention of
using any of the items she possessed as a “destructive device.” In fact, there is no
indication that she even intended to use the items in conjunction with one another.
Ms. Borne had the cylinder as a “trophy” for completing the perfect cylinder 3D
printing coding, which was an innocent hobby of hers, a can of hairspray for her hair
in the high humidity of Azran, and a small pack of matches, accidentally left in her
duffle bag from the family’s camping trip. Further, Ms. Borne was completely
unaware of the existence of Mr. Triton’s 3D printer handgun plans, which were in his
possession, and the plastic filament formula, in the possession of Ms. Triton. Ms.
Borne’s possession of household items and coding is reasonable in light of her trip on
a semester abroad to a technical school. In ignoring Ms. Borne’s subjective intent,
this Court would defer to the possibility that a seventeen-year-old girl’s packing of
household items qualifies as creating a bomb, subjecting her to twelve months in a
federal prison. This outcome would be unjust and lead the court to a precedent that
prohibits the possession of any pressurized container with the potential to explode in
high heat or sunlight; this would criminalize the individual possession of hairspray,
bug spray, or even a can of cola. To avoid an unfair outcome this Court should utilize
a subjective standard and consider the intent of Ms. Borne.
C.
EVEN IF THIS COURT FAILS TO APPLY A SUBJECTIVE
STANDARD, MS. BORNE DOES NOT MEET THE QUALIFICATIONS
FOR CONVICTION UNDER 26 U.S.C. § 5845(f)(3).
Even if this Court applies a mixed standard, looking to both the objective
16
characteristics of the items in question and Ms. Borne’s subjective intent, Ms. Borne’s
conviction under § 5845(f) is still improper. Under a mixed standard, the court
considers a two-prong test. See United States v. Spoerke, 568 F.3d 1236 (11th Cir.
2009); Johnson, 152 F.3d 618; Posnjak, 457 F.2d at 1110. In applying the first prong,
the court looks to the objective nature of the device or unassembled component parts
and whether such items fall under subsections (1) or (2) of § 5845(f). Hammond, 371
F.3d at 780. If the court finds that the device or unassembled component parts, based
on the first prong, constitutes a destructive device under subsections (1) or (2), then
the inquiry ends. Johnson, 152 F.3d at 625. If, however, the court finds that the device
or unassembled component parts do not fall under subsections (1) or (2), then the
court looks to the defendant’s subjective intent—whether the defendant intended to
use the device or unassembled component parts for destructive purposes. See United
States v. Uzenski, 434 F.3d 690, 703-04 (4th Cir. 2006); United States v. Fredman,
833 F.2d 837, 840 (9th Cir. 1987); United States v. Worstine, 808 F. Supp. 663, 670
(N.D. Ind. 1992); United States v. Seven Miscellaneous Firearms, 503 F. Supp. 565,
573 (D.D.C. 1980); Ballew v. United States, 389 F. Supp. 47, 56 (D. Md. 1975). Ms.
Borne’s conviction is improper even if this Court applies a mixed standard because
the items do not constitute a destructive device based on the objective nature of the
items and their innocent purposes.
1. The items within Ms. Borne’s possession do not constitute a
“destructive device” 26 U.S.C. § 5845(f)(1) or (2) because they fail to
meet the objective standard.
In order to convict an individual under § 5845(f)(3), utilizing the first prong of
17
the mixed standard, the objective nature of the device or its unassembled component
parts must indicate that the items can only be used as a weapon as defined under
subsections (1) or (2). Hammond, 371 F.3d at 780. Subsection (1) refers to an
explosive, incendiary, or posison gas bomb, grenade, rocket launcher, missile, mine,
or similar device. 26 U.S.C. § 5845(f)(1) (2014). Subsection (2) refers to “any type of
weapon . . . which may be readily converted to, expel a projectile” from a barrel with
a “bore [size] of more than one-half inch in diameter.” Id. § 5845(f)(2). Importantly,
the component parts of the device must have no social or commercial purpose.
Johnson, 152 F.3d at 618.
a. Ms. Borne’s possession of hairspray, matches, and the 3Dprinted cylinder does not meet the objective standard under §
5845 because they cannot be combined to create a militarytype weapon or expel a projectile.
The hairspray, matches, and 3D-printed cylinder found in Ms. Borne’s
possession would not objectively fall under subsections (1) or (2) of § 5845(f). These
items do not constitute a bomb, grenade, rocket, or similar item, and they do not
constitute a weapon which would expel a projectile.
To meet the objective
requirements, the device must also be “likened to a commonly used civilian weapon
of crime and destruction.” United States v. Reed, 726 F.2d 570, 576 (9th Cir. 1984).
In United States v. Reed, the court found that the defendant’s “paper-wrapped,
gasoline-filled cans” did not constitute “the kind of destructive device which
amounted to a firearm as described in § 5845(f).” Id. The court determined that the
device could not be used as a weapon because any attempt to use it would result in
serious harm to the possessor. Id. The court held that “[n]othing in the record
18
indicates that a device of this kind, although capable of causing great incendiary
damage, bears the traditional indicia of a weapon, or had such a possible use.” Id.
In United States v. Podolsky, the court held that the defendant’s possession of
gasoline, brake fluid, and chlorine did not constitute a “destructive device” under §
5845(f). 625 F. Supp. at 197-99. In considering the objective nature of such items, the
court noted that subsection (1) “applies primarily to military-type ordnance, such as
bombs, mines or bazookas.” Id. at 197. The court found that the combination of parts
listed did not “fall within one of the definitions of subsections (1) and (2)” because,
although the items could construct an incendiary device, the items could not
constitute a military-type weapon. Id.
In United States v. Rushcamp, the court held that a rocket launcher was a
destructive device under § 5845(f)(2). 526 F.2d 1380, 1382 (6th Cir. 1975). The court
reasoned that the German 8.8 centimeter rocket launcher possessed by the defendant
constituted a destructive device under § 5845(f)(2) because it could expel a 3.5 inch
U.S. Military rocket.
Id. at 1381. This capability brought the device under the
subsection of the statute relating to barrels “which have a bore of more than one-half
inch in diameter” and could “expel a projectile by the action of an explosive or other
propellant.” Id.
In the present case, like the device in Podolsky, the unassembled items that
were in Ms. Borne’s possession do not fall under the types of military weapons under
subsection (1) or (2) of § 5845(f). Ms. Borne’s possession of various, unassembled
common household items is not the type of constructed military weapon that the
19
statute was intended to encompass. Similar to the device in Reed, the FBI ballistics
expert determined that Ms. Borne’s potential device could not explode without
causing significant bodily harm or death to the possessor. Based on the court’s
conclusion in Reed, this renders the items not a weapon and excludes the potential
device from falling under § 5845(1) or (2).
Unlike the rocket launcher at issue in Rushcamp, the hairspray, matches, and
3D-printed cylinder in this case could not fall under subsection (2) because these
items would not create a weapon that would “expel a projectile by the action of an
explosive or other propellant.” Subsection (2) necessarily requires the device to expel
a projectile in the form of a bullet, rocket, shell, or grenade that is propelled from a
barrel of more than one-half inch in diameter. Here, is no item would be expelled
from the 3D-printed cylinder even if it were capable of exploding due to the hairspray
and matches. Further, the 3D-printed cylinder created was only one-half inch in
diameter, and therefore would not fall under the appropriate bore size under
subsection (2) which specifies that the bore size must be “more than one-half inch in
diameter.” Accordingly, these items could not constitute a combination of parts that
would render them a destructive device as defined by subsection (2).
b. Ms. Borne’s possession of the curve code, formula, and plans
for a 3D-printed handgun do not qualify as a weapon because
they are merely plans.
Objectively, the curve code and handgun plans do not constitute a device, or
even unassembled component parts of a device, under § 5845(f)(1) or (2) because plans
are not actual weapons as contemplated under the statute and are protected under
20
the First and Second Amendments. The First Amendment of the U.S. Constitution
states, “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const.
amend. I. Under the First Amendment, electronic communications are considered
speech because despite an electronic medium, information is still conveyed. See Reno
v. ACLU, 521 U.S. 844, 851 (1997). The protection of “freedom of speech” extends to
scientific principles, including computer coding, as it is a source of information
expression. Roth v. United States, 354 U.S. 476, 484 (1957) (noting that the First
Amendment protects “the advancement of truth, science, morality, and arts”);
Universal City Studios, Inc. v. Corley, 273 F.3d 429, 447 (2d Cir. 2001) (“A recipe is
no less “speech” because it calls for the use of an oven”). This Court established that
First Amendment rights reinforce other constitutional rights. Richmond Newspaper,
Inc. v. Virgina, 448 U.S. 555, 558-81 (1980) (First Amendment bolsters “right of access
to criminal trials”). Communication involving the right to keep and bear arms,
likewise, falls under the protections of the First Amendment, which strengthens
Second Amendment rights.
The Second Amendment guarantees that “the right of the people to keep and
bear arms, shall not be infringed.” U.S. Const. amend. II. This Court in McDonald
v. City of Chicago established that the right to keep and bear arms is a fundamental
right. 561 U.S. 742, 765 (2010); see also Dist. of Columbia v. Heller, 554 U.S. 570,
594 (2008). Although Congress has created a complex system for regulating the
production, distribution, and possession of firearms, the Second Amendment still
protects the right to manufacture handguns for personal use with no requirement of
21
licensing or registration.2 18 U.S.C. § 921(a)(21)(A) (2014); see also Bureau of Alcohol,
Tobacco,
Firearms
&
Explosives,
Firearms
Technology,
www.atf.gov/firearms/faq/firearms-technology.html (last visited Nov. 22, 2015)
(“[P]er provisions of the [the GCA] an unlicensed individual may make a ‘firearm’ as
defined in the GCA for his own personal use, but not for sale or distribution.”).3
An individual producing a firearm for personal use is not required to be
licensed because he or she is not “engaging in the business” of manufacture. 18 U.S.C.
§ 921(a)(21)(A). An individual making their own weapons from a 3D printer for selfdefense is therefore protected. While certain fears are associated with 3D printing of
handguns, the capability to manufacture one’s own handgun has long existed;
criminals have had the means to create their own firearms and they have already
been doing so prior to 3D printing abilities.4 As it remains, the Second Amendment
protects the ability to manufacture one’s own handgun for personal use, and certainly
the First Amendment bolsters this right by rendering firearm manufacturing plans
constitutionally protected.
In United States v. Urban, the defendant possessed “books and pamphlets on
how to manufacture various weapons and explosives,” a PVC container, fuses, an
illegal firearm silencer, smokeless gun powder, a homemade detonator, and fuse
This presumes that the individual is not a prohibited person—a felon, an individual adjudicated
mentally incompetent, etc.—under federal law from possessing, receiving, or transferring a firearm.
See 18 U.S.C. § 922(g)(1), (4) (2014).
3 Importantly, the definition of “firearm” in the GCA encompasses destructive devices, and the
definition of “destructive device” in the GCA is almost identical to that of the NFA. Compare 18 U.S.C.
§ 921(a)(3), (4) with 26 U.S.C. § 5845(a), (f).
4 T. Markus Funk, Gun Control and Economic Discrimination: The Melting-Point Case-in-Point, 85 J.
Crim. L. & Criminology 764, 774 (1995) (explaining that twenty percent of guns confiscated from
criminals in Washington D.C. in 1986 were homemade).
2
22
assemblies. 140 F.3d 229, 231 (3d Cir. 1998). The court found that the defendant was
in possession of a destructive device, not because he had plans for manufacturing
explosives solely, but because he possessed all the necessary unassembled component
parts to complete the plans as well. Id. at 233-34. The items found with the defendant
were considered unassembled component parts that would be used to design a
“canister grenade,” which caused the items to be classified under the definition of
destructive device in § 5845(f)(1)(b). Id. at 234. Importantly, the items themselves
were considered destructive devices—not the manufacturing plans. Id.
In Halberstam v. S.W. Daniel, Inc., the defendant sold a self-assemble firearm
kit with an unfinished frame, which was found not to constitute a “firearm.” No. 95C3323 (E.D.N.Y. 1998). While the case related to a products liability claim, it was
reasoned that the unassembled component pieces of a firearm, do not themselves
constitute a “firearm.” Id.
Unlike the defendant in Urban, who possessed plans for manufacturing
weapons and the items necessary to complete such plans, Ms. Borne only had the
plans for the 3D printing of the handgun—she did not have all the necessary
components to complete such plans. These plans can be lawfully possessed because
they are electronic communications protected under the First Amendment.
Additionally, the Second Amendment alone allows for the actual construction of a
handgun for personal possession. These 3D firearm plans alone do not constitute any
device under § 5845(f)(1). Nothing about pictorial or written instructions by
themselves can be deemed a destructive device under the statute. Mere instructions
23
cannot fall under the definition of “destructive device” under § 5845(f)(2) because
these instructions alone are not a “type of weapon” that could “expel a projectile.”
Without the necessary components to create the 3D handgun—the 3D printer and
the plastic filament materials—the instructions cannot be converted into a
destructive device as defined under subsection (1) and (2). The plans are just that—
plans; they are instructions, a recipe for constructing a handgun. If the defendant in
Halberstam, who was actually selling self-assemble firearm kits made up of
component pieces, was not found to be selling “firearms,” then possessing firearm
plans—without any tangible components whatsoever—should not be viewed as a
“firearm” or “destructive device” under the statute.
2. Under the mixed standard, Ms. Borne’s analysis of the subjective
intent is required for unassembled items that have the potential for
innocent use.
Ms. Borne’s innocent subjective intent should be considered because the
unassembled items in her possession do not constitute a destructive device when
viewed objectively. When the device or unassembled component parts do not fall
under subsections (1) or (2), the court looks to the subjective intent of the defendant
to determine whether the device should be considered a destructive device based on
its intended use. Johnson, 152 F.3d at 627-28; see also United States v Fredman, 833
F.2d 837 (9th Cir. 1987); United States v. Metzger, 778 F.2d 1195 (6th Cir. 1985);
United States v. Homa, 608 F.2d 407 (10th Cir. 1979); Burchfield v. United States,
544 F.2d 922 (7th Cir. 1976). A device constitutes a “destructive device” under §
5845(f) “if, and only if, it was designed for use as a weapon” because “[s]tatutory
24
construction depends upon proof that a device is an explosive plus proof that it was
designed as a weapon.” Hammond, 371 F.3d at 780 (emphasis in original). When the
nature of the device has an innocent purpose, the court should look to the defendant’s
intended use of the device or unassembled component parts. United States v. Ross,
458 F.2d 1144, 1146 (5th Cir. 1972). If the court fails to consider an individual’s
subjective intent and the innocent nature of the items within one’s possession, it
would “impose criminal sanctions on a class of persons whose mental state . . . makes
their actions entirely innocent.” Staples, 511 U.S. at 601. With a possible innocent
use and without intent to use the device for an evil purpose, the device is not a
destructive device under § 5845(f)(3). Hammond, 371 F.3d at 778.
In United States v. Hammond, the defendant was charged with possession of
an industrial cardboard tube, rigged with a fuse and filled with “nine ounces of
pyrodex, an explosive powder, ground pyrodex, and smokeless gunpowder.” Id. at 77880. The court reasoned that an explosive device does not constitute a destructive
device unless the possessor conveys a subjective intent to use the device as a weapon.
Id. Although a government expert testified that he believed the device was a weapon,
the court found that the expert “offered no insight as to how he arrived at this
conclusion other than that the device would explode and cause damage.” Id. The court
determined that “the critical inquiry is whether the device, as designed, has any value
other than as a weapon.” Id. at 781 (citing Johnson, 152 F.3d at 628). The defendant
claimed the item was a firecracker, not a weapon, and the court found that without
the Government providing contrary proof, the device was not a weapon. Id. at 780.
25
In United States v. Ross, the court held that a “Molotov cocktail” had “no
purpose apart from criminal activities” because it has no legitimate purpose, but
instead a perversion into “an illegitimate end.” 458 F. 2d at 1146. The court stated
that “[§] 5845(f) itself contains the crucial limitation that a destructive device does
not include any device not designed or redesigned for use as a weapon.” Id. at 1145.
In referencing the statute, the court acknowledged that “[t]he devices that are
enumerated have a common usage limited to anti-social purpose. By their nature
they are not suited for some other innocent end.” Id. Accordingly, the court allowed
the jury to “weigh the evidence of guilt along with the defendant’s explanation” in
order to make a determination based on a reasonable mind. Id. at 1146.
Similar to Hammond, the compilation of items strewn throughout Ms. Borne’s
duffle bag, as well as within Ms. Triton’s bag and plugged into Mr. Triton’s vehicle
radio, all have innocent purposes. Unlike Ross, Ms. Borne’s possession of hair spray,
a 3D-printed cylinder, matches, and coding plans all have innocent purposes and were
not “designed for use as a weapon.” Ms. Borne packed hair spray for her hair because
of the high humidity in Azran. The plastic 3D-printed cylinder was a trophy of Ms.
Borne’s accomplishment in advancing her knowledge of computer coding, which she
pursued as an innocent hobby. Because Ms. Borne’s family often used the duffle bag
for camping, there was a small pack of matches stored in a small interior pocket for
camping emergencies. Ms. Borne had taken the 3D printer code for the perfect
cylinder to show Mr. Allen her accomplishments. The other materials found, each on
separate USB devices, were a result of Mr. Triton’s interest in potentially profiting
26
as a retirement project and Ms. Triton’s downloading of her father’s plastic filament
formula. Ms. Borne was unaware of the information on the other USB drives. Ms.
Borne could not have had the “evil purpose” to create a destructive device when she
was completely unaware that all of the items were in the vehicle, let alone within her
possession. The practical, innocent use of the items outweighs the perversion of their
potential use.
II.
MS. BORNE’S CONVICTION UNDER 18 U.S.C. § 2339B FOR MAKING
PLANS TO MEET WITH MR. ALLEN IS IMPROPER BECAUSE IT
INFRINGES UPON HER FIRST AND FIFTH AMENDEMENT RIGHTS.
This Court should not uphold Ms. Borne’s conviction under 18 U.S.C. § 2339B
because it violates her freedom of speech and association under the First Amendment
and her right of due process under the Fifth Amendment. The First Amendment
protects freedom of speech and association. U.S. Const. amend. 1; see NAACP v.
Claiborne Hardware Co., 458 U.S. 886, 911 (1982). This Court determined that
computer coding is an expression of speech, even if the language may be unknown to
some. See Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2733 (2011); Roth, 354
U.S. at 484. Limitations imposed on First Amendment rights that encroach upon
fundamental liberties are subject to strict scrutiny. See Citizens United v. Fed.
Election Comm’n, 558 U.S. 310, 340 (2010).
The Fifth Amendment guarantees that, “[n]o person shall . . . be deprived of
life, liberty, or property, without due process of law.” U.S. Const. amend. V. This
Court utilizes the void for vagueness doctrine to identify due process violations
facially, as applied, or both. See Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
27
455 U.S. 489 (1982). A statute is invalid under the void for vagueness doctrine when
it fails to provide fair notice of the prohibited conduct or could result in arbitrary and
discriminatory enforcement. See City of Chicago v. Morales, 527 U.S. 41, 64-65
(1999); Kolender v. Lawson, 461 U.S. 352, 357 (1983); Connally v. Gen. Constr. Co.,
269 U.S. 385, 392 (1926).
A.
CONVICTING MS. BORNE FOR PLANNING TO SHARE HER
COMPUTER CODE INFRINGES UPON HER FIRST AMENDMENT
RIGHTS TO FREEDOM OF SPEECH AND ASSOCIATION.
The First Amendment protects Ms. Borne’s right to share her computer code
for the perfect 3D-printed cylinder with Mr. Allen. The First Amendment protects
the public’s right to receive “access to social, political, esthetic, moral, and other ideas
and experiences.” Red Lion Broad. Co. v. Fed. Commc’ns Comm’n, 395 U.S. 367, 390
(1969). This Court has “long understood as implicit in the right to engage in activities
protected by the First Amendment a corresponding right to associate with others in
pursuit of a wide variety of political, social, economic, educational, religious, and
cultural ends.” Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984). Speech and
association are “the kind of activity to which the First Amendment ordinarily offers
its strongest protection.” Holder v. Humanitarian Law Project, 561 U.S. 1, 43 (2010)
(Breyer, J., dissenting) (emphasis in original).
1. 18 U.S.C. § 2339B infringes upon Ms. Borne’s freedom of speech
because the sharing of computer code is protected speech under the
First Amendment.
Under the First Amendment, electronic communications are considered
speech. See Reno, 521 U.S. at 851. The protection of “freedom of speech” includes
28
expression of information. Roth, 354 U.S. at 484. Although 3D printing is a new
medium, the First Amendment commands protection for “new and different
medium[s] for communication.” Brown, 131 S. Ct. at 2733. The First Amendment
extends to computer coding. Corley, 273 F.3d at 447 (“Computer programs are not
exempted from the category of First Amendment speech simply because their
instructions require use of a computer . . . a musical score is no less ‘speech’ because
it specifies performance on an electric guitar.”).
In Brown v. Entertainment Merchants Associations, this Court held that
“computer programming qualifies for First Amendment protection because it
communicates ideas through distinctive features of the medium.” 131 S. Ct. at 2733.
This Court analogized video games to “books, plays, and movies” that also hold First
Amendment protection; although video games are advanced technology, the same
principles apply.
Id. This Court emphasized that “whatever the challenges of
applying the Constitution to ever-advancing technology, ‘the basic principles of
freedom of speech and the press . . . do not vary’ when a new and different medium
for communication appears.” Id. (quoting Joseph Burstyn, Inc. v. Wilson, 343 U.S.
495, 503 (1952)).
Ms. Borne’s computer coding is protected speech under the First Amendment
because the code is a communication of ideas, which is encompassed within freedom
of speech under the First Amendment. The coding Ms. Borne developed, although
zeroes and ones, still communicates information to other individuals familiar with
coding.
The law surrounding the development of computer programming
29
technologies are not exceptions to communication as speech. Although 3D printing
technology is relatively new, Ms. Borne’s conveyance of information through coding
is still subject to First Amendment protection.
2. 18 U.S.C. § 2339B infringes upon Ms. Borne’s freedom to associate
because she only conveyed a peaceful and lawful interest.
The First Amendment protects freedom of association. Humanitarian Law
Project, 561 U.S. at 43 (citing NAACP v. Claiborne Hardware Co., 458 U.S. 886, 911
(1982)). Freedom of association is a fundamental right “that cannot be denied without
violating those fundamental principles of liberty and justice which lie at the base of
all civil and political institutions.” De Jonge v. Oregon, 299 U.S. 353, 364 (1937).
This Court “has recognized a right to associate for the purpose of engaging in those
activities protected by the First Amendment—speech, assembly, petition for the
redress of grievances, and the exercise of religion.” Robert, 468 U.S. at 618. In these
respects, when the government restricts an individuals’ selection of society, the
restriction infringes upon the individual’s “freedom of intimate association and [his
or her] freedom of expressive association.” Id.
The First Amendment protects communication with members of organizations
“so long as that advocacy is not ‘directed to inciting or producing imminent lawless
action and . . . likely to incite or produce such action.’” Humanitarian Law Project,
561 U.S. at 43-44 (quoting Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)). An
individual cannot be prosecuted “merely for membership in a group or for espousing
its views.” Humanitarian Law Project v. Reno, 205 F.3d 1130, 1133 (2000) (“[U]nder
the material-support statute, [an individual] may say anything they wish on any
30
topic”). A “blanket prohibition of association with a group having both legal and
illegal aims” would present “a real danger that legitimate political expression or
association would be impaired.” Scales v. United States, 367 U.S. 203, 229 (1961).
Further, under 18 U.S.C. § 2339B, “a person must have knowledge that the
organization is a designated terrorist organization,” “engaged . . . in terrorist
activity,” or “has engaged or engages in terrorism.” 18 U.S.C. § 2339B. “Congress
plainly spoke to the necessary mental state for a violation of § 2339B, and it chose
knowledge about the organization’s connection to terrorism.” Humanitarian Law
Project, 561 U.S. at 16-17.
In NAACP v. Claiborne Hardware Co., this Court held that the defendants’
involvement in a boycott against white merchants at an NAACP meeting, where some
acts of threats and violence occurred, did not impose liability despite the fact that the
defendants had “agreed to use force, violence, and ‘threats.’” 458 U.S. at 919 (relying
on the rule from Brandenburg, 395 U.S. at 447, that states that advocacy can only be
forbidden or proscribed if is directed to or likely to incite unlawful aims and goals).
“The government has the burden of establishing a knowing affiliation with an
organization possessing unlawful aims and goals, and a specific intent to further
those illegal aims.”
Rizzo v. Goode, 423 U.S. 362, 373-76 (1976). This Court
determined that “the intent must be judged ‘according to the strictest law.’” NAACP,
458 U.S. at 919 (quoting Noto v. United States, 367 U.S. 290, 299 (1961)). “Otherwise
there is a danger that one in sympathy with the legitimate aims of such an
organization, but not specifically intending to accomplish them by resort to violence,
31
might be punished for his adherence to lawful and constitutionally protected
purposes, because of other and unprotected purposes which he does not necessarily
share.” Noto, 367 U.S. at 299-300.
There is no indication that Ms. Borne had knowledge that Mr. Allen was a
member of an FTO. Upon inquiring about Mr. Allen to Mrs. Ascot, Mrs. Ascot told
Ms. Borne that the members of Dixie Millions were not “Black Hat Hackers,” but
instead that they were “White Hat Hackers” (conveying the opinion that the hackers
were actually ethical hackers). Without the knowledge that Mr. Allen was part of an
FTO, Ms. Borne lacks the mental culpability for conviction under 18 U.S.C. § 2339B.
However, even if Ms. Borne was aware of Mr. Allen’s involvement in an FTO,
Ms. Borne has the First Amendment right to associate with Mr. Allen so long as she
is not providing “material support.” Even if Mr. Allen’s political group had illegal
aims, this would not incriminate Ms. Borne unless the government established that
she had specific intent to further Dixie Millions’ violent aims. Yet, similar to the
defendant in NAACP, the evidence suggests Ms. Borne has a desire for peace, which
illustrates that she had no intent to further Dixie Millions’ aims. Ms. Borne only
indicated that she “wanted to be a ‘White Hat Hacker’ and become a force for good in
the universe.” The Fourteenth Circuit’s analysis sheds light on the fact that during
Ms. Borne’s trial, FBI agents that specialize in “monitoring Darknet activities”
admitted that Ms. Borne’s goal in meeting other hackers was to convince them not to
“exploit bank, financial, and government security flaws” because that would ruin
people’s lives. To further demonstrate Ms. Borne’s desire for peace, this Court may
32
look to the information submitted at trial regarding Ms. Borne’s Twitter account
expressing “#guncontrol” within the context of a gun-related death of a classmate,
which emphasized her distaste for violence.
B.
18 U.S.C. § 2339B IS SUBJECT TO STRICT SCRUTINY REVIEW
BECAUSE IT RESTRICTS THE EXERCISE OF FUNDAMENTAL
FIRST AMENDMENT RIGHTS.
Section 2339B is subject to strict scrutiny review because it is a content-based
regulation. Strict scrutiny review applies when the government infringes on contentbased speech and the freedom of association in violation of the First Amendment. See
e.g., Citizens United, 558 U.S. 310; Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000);
United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803 (2000). These rights are
protected as fundamental elements of individual liberty. Roberts, 468 U.S. at 618;
De Jonge, 299 U.S. at 364 (“The right of peaceable assembly is a right cognate to those
of free speech and free press and is equally fundamental.”). A law that challenges
the exercise of fundamental rights is subject to strict scrutiny review.
See San
Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 16-17 (1973). For a statute to be
upheld under strict scrutiny, the government must show that the statute “furthers a
compelling interest and is narrowly tailored to achieve that interest.” Fed. Election
Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 450 (2007). Within the sensitive
field of freedom of speech and association, the government cannot use “means that
broadly stifle fundamental personal liberties when the end can be more narrowly
achieved.” Shelton v. Tucker, 364 U.S. 479, 488 (1960); Carroll v. Princess Anne, 393
U.S. 175, 183-84 (1968); Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126
33
(1989). While 18 U.S.C. § 2339B does further the government’s compelling interest
in national security, the statute is not narrowly tailored to achieve that interest, and,
therefore, fails strict scrutiny.
In Holder v. Humanitarian Law Project, this Court determined that § 2339B
is subject to strict scrutiny review. 561 U.S. at 45. Although the Government argued
that conduct, rather than speech, was at issue in § 2339B, this Court disagreed. Id.
at 27. Instead, this Court found that § 2339B “regulates speech on the basis of its
content.” Id. at 45 (finding that when the statute “applies criminal penalties . . . on
the basis of content-based distinctions,” the Court scrutinizes it “‘strictly’—to
determine whether the prohibition is justified by a ‘compelling’ need that cannot be
‘less restrictively’ accommodated”).
In United States v. Playboy Entertainment Group, Inc., this Court analyzed a
statute that restricted “sexually explicit adult programming” channels and
considered whether the statute at issue furthered the Government’s interest in
blocking “undesired channels.” 529 U.S. at 816. While the Government argued that
many adults may find the material offensive, and that the material was unwanted
within homes with children, the court found that blocking the stations also prevented
adults from accessing the entertainment, which was a form of protected expression.
Id. at 826-27. This Court found that the statute at issue was unconstitutional because
the statute did not provide the least restrictive means of furthering the Government’s
interest. Id. Importantly, this Court noted that in weighing the restrictions against
the First Amendment liberties, where both the government and challenging party
34
have interests that are equal, unless the Court’s findings are “clearly erroneous, the
tie goes to free expression.” Id.
As Humanitarian Law Project established, strict scrutiny applies to § 2339B.
Similar to Playboy Entertainment, the Government is blocking communication to
specific organizations because of the content of the speech, and, while there is and
should be an exception for furthering violent interests, the distinction is in the
Government’s broad prohibition against the kind of speech at issue in the present
case. 18 U.S.C. § 2339B burdens more speech than necessary to protect the interest
in national security. A court can construe what speech is prohibited under “materialsupport,” regardless of whether the person has demonstrated an interest in
furthering the initiatives of FTOs. Although this aids in preventing future harms, it
does so by limiting an innocent individual’s right to freedom of speech. There is no
harm in allowing an individual to learn information unrelated to terrorism from
another, who happens to be involved in a terrorist organization. Here, similar to
Playboy Entertainment, free expression should not be restricted at the expense of
furthering an overly broad regulation. Because the statute is overly broad, the
Government interest against prohibiting a specific type of content infringes on
freedom of speech that does not contribute to the furthering violent aims.
C.
18 U.S.C. § 2339B IS UNCONSTITUTIONAL BECAUSE IT VIOLATES
THE DUE PROCESS CLAUSE BOTH FACIALLY AND AS APPLIED.
Section 2339B violates the Due Process Clause of the Fifth Amendment
because it is unconstitutional, both facially and as applied to Ms. Borne. The Due
Process Clause of the Fifth Amendment guarantees that, “[n]o person shall . . . be
35
deprived of life, liberty, or property, without due process of law.” U.S. Const. amend
V. The “requirement of clarity in regulation is essential to the protections provided
by the Due Process Clause of the Fifth Amendment.” FCC v. Fox Television Station,
Inc., 132 S. Ct. 2307, 2317 (2012) (quoting United States v. Williams, 553 U.S. 285,
304 (2008). This Court can determine that a statute is unconstitutionally vague
through a facial or as-applied challenge. Williams, 553 U.S. at 304. A statute violates
due process when it “fails to provide a person of ordinary intelligence fair notice of
what is prohibited, or is so standardless that it authorizes or encourages seriously
discriminatory enforcement.” Fox Television Station, Inc., 132 S. Ct. at 2317 (quoting
Williams, 553 U.S. at 304 (internal quotation marks omitted)). Here, the statute fails
to put individuals of ordinary intelligence on notice that their conduct is prohibited,
which leads to discriminatory enforcement. This lack of notice is an unconstitutional
violation of due process both facially and as applied to Ms. Borne.
1. 18 U.S.C. § 2339B is facially unconstitutional under the overbreadth
doctrine because it is overly broad.
A statute can be facially unconstitutional in two ways. Morales, 527 U.S. at 5253. First, under the overbreadth doctrine, a statute can be considered overbroad and
unconstitutional under the First Amendment if it burdens more speech that
necessary or prohibits protected expressive activity. Id; see Dombrowski v. Pfister,
380 U.S. 479, 486 (1965). Second, a statute is facially invalid when it fails to establish
clear standards that put both the public and police on notice against the “arbitrary
deprivation of liberty interests.” Kolender, 461 U.S. at 358.
A statute is overly broad and subject to the overbreadth doctrine when it runs
36
the risk of deterring constitutionally protected speech. See Los Angeles Police Dep’t
v. United Reporting Publ’g Corp., 528 U.S. 32, 39 (1999). While invalidating a law
that is constitutional in some respects may be harmful, this Court must also weigh
an individual’s fundamental rights and liberties. Williams, 553 U.S. at 292-93. A
statute infringing upon constitutionally protected liberties “support[s] a facial
challenge under the overbreadth doctrine.” Morales, 527 U.S. at 55; Grayned v. City
of Rockford, 408 U.S. 104, 109 (1972) (finding that “where a vague statute ‘abut(s)
upon sensitive areas of basic First Amendment freedoms,’ it ‘operates to inhibit the
exercise of (those) freedoms.’”).
In United States v. Williams, this Court applied a First Amendment
overbreadth doctrine to analyze a statute prohibiting “offers to provide and requests
to obtain child pornography.” 553 U.S. at 294. This Court analyzed the reach of the
statute and the amount of prohibited expressive activity to determine whether the
statute was unconstitutional under the overbreadth doctrine.
This Court first
analyzed the scope of the statute “to determine whether the statute reaches too far.”
Id. at 293. To determine the scope, the Court analyzed five different components of
the statute. Id. The statute specified “visual depictions of an actual minor,” which
would eliminate an individual’s conviction for viewing youthful-looking adults. Id.
This Court reasoned that the statute had a scienter requirement, “sexually explicit
conduct,” as well as a “string of operative verbs—‘advertises, promotes, presents,
distributes, or solicits’ is reasonably read to have a transactional connotation.” Id.
The Court found that all the meanings were narrow within the context of the
37
sentence. Id. An additional phrase in the sentence required both subjective and
objective components, limiting the potential to convict innocent individuals.
Id.
Another phrase provided the manner, which contained only the subjective component
that the individual must “intend” to have the listener believe that the material is
child pornography. Id.
This Court next analyzed whether the statute “criminalizes a substantial
amount of protected expressive activity.” Id. at 298. This Court reasoned, “offers to
give or receive what it is unlawful to possess have no social value and thus, like
obscenity, enjoy no First Amendment protection.” Id. While this Court acknowledged
that “there remains an important distinction between a proposal to engage in illegal
activity and the abstract advocacy of illegality,” this Court determined that “[t]he Act
before us does not prohibit advocacy of child pornography, but only offers to provide
or requests to obtain it.”
Id.
Accordingly, prohibiting this type of speech is
constitutional because “offers to give or receive what it is unlawful to possess have no
social value and thus, like obscenity, enjoy no First Amendment protection.” Id.
In contrast, although § 2339B has scienter, the statute lacks the other
specifications that this Court found important in determining that the statute in
Williams was not overly broad. Unlike the operative verbs in the Williams’ statute,
§ 2339B utilizes vague language that is subject to multiple interpretations. The
varied interpretations leave open the potential to expand the meanings that were
originally intent in the statute, and allow for great flexibility in the statute’s potential
scope and application. Also, unlike the statute in Williams, § 2339B does not limit
38
the potential to convict innocent individuals by multiple qualifiers, including
exceptions and specification within the statute as to specific intent components. This
allows individuals who have purely innocent motives—like Ms. Borne—to be
convicted under the vague terms within the statute.
In looking to the protected expression analysis, unlike the speech in Williams,
Ms. Borne’s freedom of speech is still protected because her speech does have social
value. While Williams dealt with speech with no social value and constituted a
proposal to engage in illegal activity, Ms. Borne’s attempted speech to Mr. Allen had
social value with no proposal of illegal activity. Ms. Borne was attempting to further
her education in planning to meet with Mr. Allen to show him the code to print a
perfect 3D-printed cylinder.
Ms. Borne worked hard to become eligible for the
“Technical Promise” pre-college study abroad program at the University of
Misthallery in Azran prior to beginning at New Tejas State University. The very
purpose of the program in Azran was designed to promote the sciences. If the statute
is construed to include Ms. Borne’s speech, the scales of justice would impede the
constitutional liberty interest in promoting “the Progress of Science and useful arts”
and weigh in favor of political fears. U.S. const. art. I, § 8, cl. 8.
2. 18 U.S.C. § 2339B is unconstitutional both facially and as applied
because the statute does not provide individuals with fair notice, and
results in discretionary enforcement standards.
A statute is unconstitutional when it “fails to establish standards for the police
and public that are sufficient to guard against the arbitrary deprivation of liberty
interests.” Kolender, 461 U.S. at 358. A statute violates due process rights if it “fails
39
to provide a person of ordinary intelligence fair notice of what is prohibited” or runs
the “impermissible risk of discriminatory enforcement.” Sable Commc’ns of Cal., Inc.
v. FCC, 492 U.S. 115, 126 (1989); Gentil v. State Bar of Nev., 501 U.S. 1030, 1051
(1991) (citing Kolender, 461 U.S. at 357-58; Smith v. Goguen, 415 U.S. 566, 572-73
(1974)). Either of these two violations of due process result in the statute being
unconstitutional. Hoffman Estates, 455 U.S. at 495. A statute is found to be vague
not because “it may at times be difficult to prove an incriminating fact but rather
because it is unclear as to what fact must be proved.” Fox Television Stations, Inc.,
132 S. Ct. at 2317. An individual can challenge the vagueness of a statute for the
particular facts of the case. Hoffman Estates, 455 U.S. at 495.
a. 18 U.S.C. § 2339B is unconstitutional because it gails to
provide individuals of ordinary intelligence fair notice of the
prohibited conduct.
A statute is facially invalid if it fails to establish clear standards that put the
public on notice of the restrictions or prevents police from discriminatory
enforcement. Kolender, 461 U.S. at 358. If the statute may “trap the innocent” or
lead to “discriminatory enforcement,” then the imprecise statute is void for
vagueness. Grayned, 408 U.S. at 109; Gentil, 501 U.S. at 1051.
In City of Chicago v. Morales, the court found a statute prohibiting “criminal
street gangs” from “loitering” invalid on its face. 527 U.S. at 52. This Court held that
the statute was unconstitutionally vague on its face because it failed to give fair notice
of the prohibited conduct to the public. Id. at 58. The Court stated, “the purpose of
the fair notice requirement is to enable the ordinary citizen to conform his or her
40
conduct to the law.” Id. The failure of warning as to what conduct is prohibited could
result in discriminatory enforcement. Id. The Court reasoned that, “[b]ecause an
officer may issue an order only after prohibited conduct has already occurred, it
cannot provide the kind of advance notice that will protect the putative loiterer from
being ordered to disperse.” Id. at 59. This retroactive order cannot “give adequate
warning of the boundary between the permissible and the impermissible applications
of the law.” Id. at 58.
Similar to the statute in Morales, § 2339B is facially invalid because it does
not provide fair notice to individuals of what conduct is included within the scope of
the statute. Additionally, the fifteen-year sentencing requirement is substantially
harsher than the “order to disperse” in Morales, and the scope of the statute should
be more clear to reflect this harsh penalty.
Although Congress has historically
attempted to make the statute clearer, the terms are still up to differing
interpretation. For example, the word “expert” is an unclear term, as the Federal
Rules of Evidence, Rule 702 allows for determination of expert testimony at the
court’s discretion. Fed. R. Evid. 702. This lack of clarity in a statute sentencing a
seventeen-year-old to fifteen years in prison is unjustifiable.
b. 18 U.S.C. § 2339B is unconstitutional as applied to Ms. Borne
because the statute lacks fair notice and results in
discriminatory enforcement standards.
18 U.S.C. § 2339B is too vague as applied to Ms. Borne because it fails to
provide fair notice that her conduct could result in discriminatory enforcement.
Although Congress has amended the material-support statute and the personnel
41
statute, for clarity, the statutes “may not be clear in every application.”
Humanitarian Law Project, 561 U.S. at 22. The definition of “material support or
resources” under § 2339B is defined under § 2339A but includes vague terms. 18
U.S.C. § 2339B. “Material support or resources” includes “any property, tangible or
intangible, or service . . . training, expert advice or assistance . . . communications
equipment . . . weapons, lethal substances, explosives, personnel (one or more
individuals who may be or include oneself) . . . .” Id. § 2339A. “[D]ue process does not
require impossible standards of clarity,” but rather further clarification when such is
neither impossible nor impractical. Kolender, 461 U.S. at 361.
In FCC v. Fox Television Stations, Inc., in considering a statute that banned
the broadcast of “any obscene, indecent, or profane language,” under the void for
vagueness doctrine, this Court focused its analysis on fair notice. 132 S. Ct. at 2320.
This Court held that the television networks were not given fair notice of the FCC’s
indecency enforcement policy because the networks “lacked notice at the time of their
broadcasts that the material they were broadcasting could be found actionably
indecent under then-existing policies.” Id. This Court took issue with the broad
language of the regulation, as well as the lack of sufficiently specific notice of the
prohibited conduct. Id. This Court held that the “harsh choice” between not airing a
broadcast or risking losing its license “led to a chill of protected speech.” Id. at 2316.
In Holder v. Humanitarian Law Project, this Court determined whether §
2339B was vague, as applied, by not “provid[ing] a person of ordinary intelligence fair
notice of what is prohibited.” 561 U.S. at 20 (quoting Williams, 553 U.S. at 304). This
42
Court determined that, as applied to the facts of the case, the statute was not vague
in its application.” Id. at 21. Justice Roberts reasoned that in the past, this Court has
“struck down statutes” with “wholly subjective judgments without statutory
definitions, narrowing context, or settled legal meanings.” Id. at 20 (citing Williams,
553 U.S. at 306). The plaintiffs in the case indicated they would like to “train
members” of the FTO, as well as give “expert advice.” Id. This Court found that, in
using the terms themselves, it demonstrated that “these common terms readily and
naturally cover plaintiffs’ conduct.” Id. at 22.
Similar to Fox Television, Ms. Borne was not given fair notice that her specific
conduct would be subject to regulation under § 2339B. In addition, Ms. Borne did not
intend to provide any kind of “material support or resources” to Mr. Allen, as the
plaintiffs in Humanitarian Law Project had planned. Instead, Ms. Borne planned to
meet Mr. Allen in order to show him the code for a 3D-printed cylinder; she merely
wanted his approval. This is reasonable because Mr. Allen, although a member of
Dixie Millions, is a well-known, excellent hacktivist and had previously worked in the
National Security Agency for database design and management. As applied to the
case, it is unclear whether or not Ms. Borne showing Mr. Allen her code is prohibited
under § 2339B.
Although both “training” and “expert advice or assistance” is further defined
in the statute, there is still vagueness. Training means “instruction or teaching
designed to impart a specific skill, as opposed to general knowledge” and “expert
advice or assistance” means “advice or assistance derived from scientific, technical or
43
other specialized knowledge.”
18 U.S.C. § 2339A(b)(2), (3).
These elaborated
definitions, however, provide no further clarity as to whether they apply to Ms.
Borne’s situation.
Does training refer to the general knowledge of the individual(s) being trained
or to the general knowledge of the public? Here, this distinction is important because
Ms. Borne’s advanced knowledge of coding over the general public could indicate she
is “training” Mr. Allen; however, “instruction or teaching” implies the student does
not already have that knowledge. Mr. Allen’s skills, as a renown hacker, are far more
advanced than those of seventeen-year-old Ms. Borne. While Ms. Borne’s coding
would likely be included within “scientific, technical or other specialized knowledge,”
is it expert advice or assistance if she is a learning student appealing to an expert for
approval? These unanswered questions lead to one answer: the vagueness of the
statute, as applied in Ms. Borne’s case, is unconstitutional because a person of
ordinary intelligence would not be able to decipher what conduct the statute covers.
44
CONCLUSION
Ms. Borne’s conviction under 26 U.S.C. § 5845(f)(3) was improper because the
lower court ignored established mens rea principles for determination of a
destructive device and unjustly disregarded innocent intent. Ms. Borne’s conviction
under 18 U.S.C. § 2339B impermissibly violates Ms. Borne’s First Amendment right
to freedom of speech and association and Ms. Borne’s Fifth Amendment right to due
process. For the foregoing reasons, this Court should reverse the Fourteenth Circuit.
Respectfully Submitted,
/s/ Counsel for Petitioner
Counsel for Petitioner
45
APPENDIX A
26 U.S.C.A § 5845
§ 5845. Definitions
(a) Firearm – The term “firearm” means (1) a shotgun having a barrel or barrels of
less than 18 inch in length; (2) a weapon made from a shotgun if such weapons as
modified has an overall length of less than 26 inches or a barrel or barrels of less than
18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in
length; (4) a weapon made from a rifle if such weapon as modified has an overall
length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5)
any other weapon as defined in subsection (e); (6) a machinegun; (7) any silencer (as
defined in section 921 of Title 18, United States Code); and (8) a destructive device.
The term “firearm” shall not include an antique firearm or any device (other than a
machinegun or destructive device) which, although designed as a weapon, the
Secretary finds by reason of the date of its manufacture, value, design, and other
characteristics is primarily a collector’s item and is not likely to be used as a weapon.
(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.
A-1
APPENDIX B
U.S.C.A. § 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, 832, 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.
B-1
U.S.C.A. §2339B
Providing material support or resources to designated foreign terrorist
organizations – (relevant section excerpted)
(a) 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 (ad 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).
B-2