No. C15-1359-1
IN THE
Supreme Court of the United States
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 #35
Counsels of Record
NOVEMBER 23, 2015
QUESTIONS PRESENTED
1. Do a plastic cylinder, matches, hairspray, and two USB drives containing
3D printer data qualify as a destructive device for purposes of 26 U.S.C. §
5845(f)(3)?
2. Does intent to communicate with an individual member of a terrorist
organization constitute “material support” under 18 U.S.C. § 2339B, when
the intended communication is unrelated to the illegal activities of the
organization?
i
TABLE OF CONTENTS
QUESTIONS PRESENTED .................................................................................i
TABLE OF CONTENTS ..................................................................................... ii
TABLE OF AUTHORITIES................................................................................iv
OPINIONS BELOW ............................................................................................. 1
JURISDICTION ................................................................................................... 1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ............. 1
STATEMENT OF THE CASE ............................................................................. 2
A. Emmaline Borne and Fiona Triton Apply To Technical Promise ................. 2
B. Clive Allen Releases Documents And Flees To Azran ................................... 2
C. Ms. Borne And Ms. Triton Prepare For Technical Promise .......................... 3
D. Ms. Borne And Ms. Triton Are Arrested Following A Traffic Stop .............. 4
E. Proceedings Below ........................................................................................... 6
SUMMARY OF THE ARGUMENT ..................................................................... 8
A. Application of 26 U.S.C. § 5845(f)(3)............................................................... 8
B. Application of 18 U.S.C. § 2339B .................................................................... 9
ARGUMENT ....................................................................................................... 10
I.
Because They Are Not Objectively Dangerous, The Items Found In Ms.
Borne’s Possession Do Not Qualify As “Destructive Devices” Under 26
U.S.C. § 5845(f)(3).................................................................................... 10
A.
This Court Should Use A Purely Objective Test To Determine
Whether Ms. Borne Possessed A “Destructive Device.” ............. 12
1.
An Objective Test Is Consistent With The Text Of The
Act. ...................................................................................... 13
2.
An Objective Test Is Appropriate Given The Legislative
Intent And History Of The National Firearm And Gun
Control Acts. ....................................................................... 17
3.
B.
Public Policy Supports An Objective Test. ....................... 19
Under An Objective Test, Ms. Borne Was Not In Possession Of A
“Destructive Device.” .................................................................... 21
1.
The Items In Ms. Borne’s Possession Have Legitimate
Social Uses, And Are Not Inherently Dangerous. ............ 22
ii
2.
C.
II.
The Items In Ms. Borne’s Possession Could Not Have
Been “Readily Assembled” Into A Device Covered By
Subsections (f)(1) Or (f)(2)... .............................................. 23
Even Considering Subjective Intent, Ms. Borne Did Not Possess
A Destructive Device. ................................................................... 26
The Fourteenth Circuit Erred In Affirming Ms. Borne’s Conviction
Under 18 U.S.C. § 2339b Because The Statute Is Unconstitutional
And The Verdict Is Not Supported By Sufficient Evidence. . ............... 29
A.
B.
C.
Section 2339B Violates The First Amendment By Criminalizing
Protected Speech And Association. .............................................. 30
1.
Section 2339B Is Not “Narrowly Tailored” To Address A
Compelling Government Interest. .................................... 30
2.
Section 2339B Violates The First Amendment Right To
Freedom of Association. ..................................................... 33
3.
Stare Decisis Does Not Require Continued Reliance On
This Court’s Decision In Holder v. Humanitarian Law
Project. ................................................................................ 35
Section 2339B Is Unconstitutionally Vague As Applied To The
Facts Of This Case. ....................................................................... 39
1.
Property. ............................................................................. 40
2.
Expert Advice Or Assistance. ............................................ 42
3.
Service. ............................................................................... 42
4.
Personnel. ........................................................................... 43
The Jury’s Verdict Must Be Overturned Because It Was Not
Supported By Sufficient Evidence. ............................................. 44
1.
Due Process Requires That A Criminal Verdict Be
Supported By Sufficient Evidence.... ................................ 45
2.
The Jury Did Not Have Sufficient Evidence To Find That
Ms. Borne’s Actions Were Coordinated Or Directed By
Dixie Millions... .................................................................. 47
3.
The Jury Did Not Have Sufficient Evidence To Find That
Ms. Borne Intended To Provide Material Support To Dixie
Millions. .............................................................................. 50
4.
The Jury Did Not Have Sufficient Evidence To Find That Ms.
Borne Knew Dixie Millions Qualified As A Terrorist
Organization. ....................................................................... 53
CONCLUSION ................................................................................................... 55
iii
TABLE OF AUTHORITIES
Supreme Court Cases
Brandenburg v. Ohio,
395 U.S. 444 (1969) ..................................................................... 29, 33, 36
Carella v. California,
491 U.S. 263 (1989) ................................................................................. 49
Connally v. General Constr. Co.,
269 U.S. 385 (1926) ................................................................................. 39
De Jonge v. Oregon,
299 U.S. 353 (1937) ........................................................................... 34-35
Food & Drug Admin. v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) ........................................................................... 13, 17
First Nat. Bank of Boston v. Bellotti,
435 U.S. 765 (1978) ................................................................................. 31
Garcia v. San Antonio Metro. Transit Auth.,
469 U.S. 528 (1985) ................................................................................. 38
Gentile v. State Bar of Nevada,
501 U.S. 1030 (1991) ............................................................................... 42
Gonzalez v. Raich,
545 U.S. 1 (2005) ..................................................................................... 20
Grayned v. City of Rockford,
408 U.S. 104 (1972) ................................................................................. 40
Griswold v. Connecticut,
381 U.S. 479 (1965) ................................................................................. 33
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) ............................................................................. passim
Holy Trinity Church v. United States,
143 U.S. 457 (1892) ................................................................................. 18
In re Winship,
397 U.S. 358 (1970) ........................................................................... 45, 46
Jackson v. Virginia,
443 U.S. 307 (1979) ............................................................... 29, 44-47, 50
King v. Burwell,
135 S. Ct. 2480 (2015) ............................................................................. 13
Landmark Commc’ns, Inc. v. Virginia,
435 U.S. 829 (1978) ................................................................................. 37
Marks v. United States,
430 U.S. 188 (1977) ........................................................................... 39-40
New York State Club Ass'n, Inc. v. City of New York,
487 U.S. 1 (1988) ..................................................................................... 32
Noto v. United States,
367 U.S. 290 (1961) ................................................................................. 34
iv
Planned Parenthood of Southeastern Pennsylvania v. Casey,
505 U.S. 833 (1992) ................................................................................. 38
Pullman-Standard v. Swint,
456 U.S. 273 (1982) ................................................................................. 52
R.A.V. v. City of St. Paul,
505 U.S. 377 (1992) ................................................................................. 31
Reed v. Town of Gilbert,
135 S. Ct. 2218 (2015) ............................................................................. 31
Reno v. Am. Civil Liberties Union,
521 U.S. 844 (1997) ................................................................................. 40
Rostker v. Goldberg,
453 U.S. 57 (1981) ................................................................................... 36
Sable Commc’ns. of California, Inc. v. FCC,
492 U.S. 115 (1989) ................................................................................. 31
Sandifer v. U.S. Steel Corp.,
134 S.Ct. 870 (2014) ................................................................................ 50
Scales v. United States,
367 U.S. 203 (1961) ..................................................................... 29, 34-36
Sec'y of State of Md. v. Joseph H. Munson Co.,
467 U.S. 947 (1984) ......................................................................... 32 n. 4
Staples v. United States,
511 U.S. 600 (1994) ................................................................................. 18
Sullivan v. Louisiana,
508 U.S. 275 (1993) ........................................................................... 47-48
Thompson v. City of Louisville,
362 U.S. 199 (1960) ..................................................................... 45-46, 50
Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622 (1994) ................................................................................. 31
United States v. Morrison,
529 U.S. 598 (2000) ................................................................................. 20
United States v. Robel,
389 U.S. 258 (1967) ........................................................................... 34, 35
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489 (1982) ................................................................................. 40
Village of Schaumburg v. Citizens for a Better Environment,
444 U.S. 620 (1980) ................................................................................. 32
Virginia v. Black,
538 U.S. 343 (2003) ................................................................................. 30
Woodby v. Immigration & Naturalization Serv.,
385 U.S. 276 (1966) ................................................................................. 46
Federal Circuit Court Cases
Al Haramain Islamic Foundation, Inc. v. U.S. Dept. of Treasury,
v
660 F.3d 1019 (9th Cir. 2011) ................................................................. 37
Nunez by Nunez v. City of San Diego,
114 F.3d 935 (9th Cir. 1997) ........................................................... 32 n. 4
Schad v. Ryan,
671 F.3d 708 (9th Cir. 2011) ................................................................... 51
United States v. Dalpaiz,
527 F.2d 548 (6th Cir. 1975) ................................................................... 11
United States v. Fredman,
833 F.2d 837 (9th Cir. 1987) ............................................................. 22, 26
United States v. Friske,
640 F.3d 1288 (11th Cir. 2011) ............................................................... 51
United States v. Hammond,
371 F.3d 776 (11th Cir. 2004) ................................................................. 22
United States v. Johnson,
152 F.3d 618 (7th Cir. 1998) ................................................................... 22
United States v. Jones,
44 F.3d 860 (10th Cir. 1995) ................................................................... 51
United States v. Jones,
713 F.3d 336 (7th Cir. 2013) ................................................................... 51
United States v. Kim,
435 F.3d 182 (2d Cir. 2006) ..................................................................... 51
United States v. Langan,
263 F.3d 613, 617 (6th Cir. 2001) ........................................................... 25
United States v. Lewis,
787 F.2d 1318 (9th Cir. 1986) ................................................................. 51
United States v. Loud Hawk,
628 F.2d 1139 (9th Cir. 1979) ........................................................... 26-27
United States v. Lussier,
128 F.3d 1312 (9th Cir. 1997) ................................................................. 12
United States v. Malone,
546 F.2d 1182 (5th Cir. 1977) ........................................................... 23-24
United States v. Markley,
567 F.2d 523 (1st Cir. 1977) .............................................................. 11, 25
United States v. McConney,
728 F.2d 1195 (9th Cir. 1984) ................................................................. 52
United States v. McNeill,
887 F.2d 448 (3d Cir. 1989) ..................................................................... 51
United States v. Moreland,
665 F.3d 137 (5th Cir. 2011) ................................................................... 51
United States v. Oba,
448 F.2d 892 (9th Cir. 1971) ........................................................... passim
United States v. Pearce,
No. 03-1456, 2004 WL 231779 (6th Cir. Feb. 5, 2004) ........................... 25
United States v. Posnjak,
vi
457 F.2d 1110 (2d Cir. 1972) ........................................... 11, 14-16, 21, 23
United States v. Ragusa,
664 F.2d 696 (8th Cir. 1981) ................................................................... 11
United States v. Spoerke,
568 F.3d 1236 (11th Cir. 2009) ......................................................... 11, 22
United States v. Tresvant,
677 F.2d 1018 (4th Cir. 1982) ................................................................. 46
United States v. Urban,
140 F.3d 229 (3d Cir. 1998) ..................................................................... 11
Constitutional Provisions
U.S. Const. amend. VII ...................................................................................... 44
Federal Statutes
8 U.S.C. § 1182(a)(3)(B)(iii). ............................................................................... 54
8 U.S.C. § 1189. .................................................................................................. 54
18 U.S.C. § 921 et seq. .................................................................................. 10-11
18 U.S.C. § 1113. ................................................................................................ 21
18 U.S.C. § 1117. ................................................................................................ 21
18 U.S.C. § 2339A. ...................................................................... 34, 39, 40, 42, 50
18 U.S.C. § 2339B. ...................................................................................... passim
26 U.S.C. § 5801 et seq. ...................................................................................... 10
26 U.S.C. § 5845(f). ..................................................................................... passim
Antiterrorism And Effective Death Penalty Act,
Pub. L. No. 104-132, 110 Stat. 1214 (1996) ............................................ 37
Foreign Relations Authorization Act, Fiscal Years 1988 and 1989,
Pub. L. No. 100-204, 101 Stat. 1331 (1987) ............................................ 54
Other
1 Kirsten M. Koepsel, Data Sec. & Privacy Law § 1:11 (2015) ........................ 28
2A Norman Singer & Shambie Singer, Sutherland Statutory Construction §
47:17 (7th ed. 2015) ............................................................................................ 15
David Cole, The First Amendment’s Borders: The Place of Holder v.
Humanitarian Law Project In First Amendment Doctrine,
6 Harv. L. & Pol’y Rev. 147 (2012) ......................................................... 36
Elliot Buckman, Just a Soul Whose Intentions are Good? The Relevance of a
Defendant’s Subjective Intent in Defining a “Destructive Device” Under the
National Firearms Act,
79 Fordham L. Rev. 563, 586 (2010) ........................................... 17, 19, 21
Erik Luna, The Overcriminalization Phenomenon,
vii
54 Am. U. L. Rev. 703 (2005) .................................................................. 20
Julie R. O’Sullivan, The Federal Criminal “Code” is a Disgrace: Obstruction
Statutes as a Case Study,
96 J. Crim. L. & Criminology 643 (2006) ............................................... 20
Kristen A. Nardolillo, Dangerous Minds: The National Firearms Act and
Determining Culpability for Making and Possessing Destructive Devices,
42 Rutgers L. J. 511, 521 (2011) ............................................................. 13
Ronald L. Gainer, Federal Criminal Code Reform: Past and Future,
2 Buff. Crim. L. Rev. 45, 78 (1998) ......................................................... 20
S. Rep. No. 1501, 90th Cong., 2d Sess. 24 (1968); 114 Cong. Rec.
26888 (1968) ....................................................................................................... 18
Webster’s Third New International Dictionary (1961) .................................... 41
Webster’s Third New International Dictionary (1971) ........................ 43, 50-51
viii
OPINIONS BELOW
The majority opinion of the Fourteenth Circuit reversing the district
court can be found at R. 18-24. The dissenting opinion of Judge Morgan can
be found at R. 24-27.
JURISDICTION
The District Court had jurisdiction over this criminal case under 18
U.S.C. § 3231. Following conviction, Petitioner filed a timely appeal to the
United States Court of Appeals for the Fourteenth Circuit, which had
jurisdiction under 28 U.S.C. § 1291. This Court granted Petitioner’s timely
request for a writ of certiorari, giving it jurisdiction under 28 U.S.C.
§ 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The First Amendment to the United States Constitution provides, in
relevant part: “Congress shall make no law . . . abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble.” The
Fifth Amendment provides, in relevant part: “No person shall . . . be deprived
of life, liberty, or property without due process of law.”
18 U.S.C. § 5845(f)(3) defines “destructive device” for purposes of the
National Firearms Act as follows:
“[A]ny 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.”
1
18 U.S.C. § 2339B, entitled “Providing material support or resources to
designated foreign terrorist organizations,” provides, in relevant part:
“Whoever knowingly provides material support or resources to a
foreign terrorist organization, or attempts or conspires to do so, shall
be fined under this title or imprisoned not more than 20 years . . . To
violate this paragraph, a person must have knowledge that the
organization is a designated terrorist organization . . . that the
organization has engaged or engages in terrorist activity . . . or that
the organization has engaged or engages in terrorism . . . .”
STATEMENT OF THE CASE
A.
Emmaline Borne and Fiona Triton Apply To Technical Promise
Emmaline Borne and Fiona Triton are 17-year-old students at
Harrisburg High School in Harrisburg, New Tejas. R. 2. In the fall of 2011,
Ms. Borne and Ms. Triton applied to participate in Technical Promise, a
pre-college study abroad at the University of Misthallery in Azran. R. 2-3.
Ms. Borne and Ms. Triton were encouraged to apply by their physics
teacher Adalida Ascot. R. 3. Mrs. Ascot met with both girls individually, and
wrote a “glowing recommendation” for each. Due to their shared interest in
computer programming and games, Mrs. Ascot and Ms. Borne grew
particularly close. R. 3-4. Both girls were accepted to Technical Promise on
February 8, 2012. R. 4. Mrs. Ascot was very proud, and told the girls to
bring any projects they were working on to Azran for their professors to
review. R. 9.
B.
Clive Allen Releases Documents And Flees To Azran
2
Clive Allen is a former NSA consultant and co-founder of the hacktivist
group “Dixie Millions.” R. 5. On November 22, 2011, Mr. Allen revealed
himself as “Millions” by releasing millions of government documents to the
“Darknet,” an underground Internet used for both legal and illegal purposes.
R. 5. Mr. Allen then left the United States and was granted asylum in Azran.
R. 5-6. The United States Secretary of State declared Dixie Millions a foreign
terrorist organization (FTO) on December 30, 2011. R. 5.
Extradition negotiations proved fruitless, and in March 2012 the
United States decided to let Mr. Allen remain in Azran. R. 6. To this day,
authorities have been unable to identify or locate “Dixie,” the other cofounder of Dixie Millions. R. 6.
C.
Ms. Borne And Ms. Triton Prepare For Technical Promise
In April 2012, Ms. Triton’s father Hershel purchased a 3D printer and
began developing a “better” plastic filament formula.
R. 6-7.
Ms. Borne
noticed the 3D printer during a sleepover and asked to help solve some of its
software issues. R. 7. Mr. Triton agreed, and Ms. Borne identified a software
error that prevented the 3D printer from printing a perfect curve. R. 7.
Ms. Borne asked Mrs. Ascot to help her fix the software issue. R. 7.
While working together, Ms. Borne and Mrs. Ascot chatted about Mr. Allen
and Dixie Millions. R. 8. Mrs. Ascot expressed admiration for Mr. Allen, and
told Ms. Borne that members of Dixie Millions were “White Hat Hackers.”
3
R. 8. Mrs. Ascot finished fixing the curve formula at home, and gave Ms.
Borne a perfected version on May 1.
Ms. Borne gave Mr. Triton the perfect curve formula on May 2.
Shortly thereafter, Ms. Borne and Mr. Triton designed and printed a model
cylinder to test the formula. R. 10. The cylinder took twelve hours to print,
and Ms. Borne kept the cylinder, attached to its printing platform, as a
“trophy.” R. 10.
Also in May, Mr. Triton found plans to design and print a handgun on
the Internet. R. 9. Believing a handgun would serve as a useful test product
for his formula, Mr. Triton downloaded the plans to a gold USB. R. 9.
Throughout May 2012, Mr. Triton and his daughter worked on
perfecting the plastic filament formula—Ms. Borne was not involved. R. 1011. After they hit a roadblock, Ms. Triton offered to bring the project to her
professors in Azran for help. R. 11. Mr. Triton denied this request, but Ms.
Triton secretly downloaded the filament formula to a USB shaped like a
cartoon robot. R. 11.
Around the same time, Ms. Borne began researching Mr. Allen, who
she viewed as a role model. R. 11. Ms. Borne hoped to meet Mr. Allen in
order to get advice on her career path. R. 11. Using the “Darknet,” Ms.
Borne determined that she could find Mr. Allen at a café in Azran on June 5,
and created a reminder on her phone. R. 12.
D.
Ms. Borne And Ms. Triton Are Arrested Following A Traffic
Stop
4
On June 3, Ms. Borne and Ms. Triton packed for their trip to Azran.
Ms. Triton packed clothes, toiletries, and the aforementioned plastic filament
formula. R. 12. Ms. Borne packed clothes, toiletries, her perfect curve code,
and the cylinder model. R. 12. Ms. Borne hoped to show these items to Mr.
Allen in order to impress him. R. 12. Ms. Borne packed these items in a
duffle bag that her family had used for camping. R. 12.
On the way to the airport, Mr. Triton told the girls he had loaded the
gold USB with music for their trip. R. 13. He plugged the USB into the car
radio, but never gave it to either girl. R. 13.
Two miles from the airport, Officer Smith stopped Mr. Triton for
rolling through a stop sign. R. 13. Officer Smith then realized that Mr.
Triton had an outstanding warrant for failure to pay a speeding ticket, and
placed Mr. Triton under arrest. R. 14-15. While Officer Smith waited for
someone to pick up the girls, he saw a notification on Ms. Borne’s phone that
read “Meet Clive Allen at Café.” R. 15. Officer Smith knew of Mr. Allen, and
arrested both girls on suspicion of aiding and abetting a known fugitive. R.
15.
After obtaining a search warrant, Harrisburg Police found the
following items: (1) the plastic filament formula (in Ms. Triton’s luggage); (2)
matches, hairspray, the 3D cylinder “trophy,” and perfect curve code (in Ms.
Borne’s luggage); and (3) a gold USB containing music and 3D gun plans (in
5
Mr. Triton’s car radio). R. 16. Mr. Triton claimed that he thought he had
deleted the gun plans. R. 16.
E.
Proceedings Below
Ms. Borne and the Tritons were indicted for possession of a destructive
under 26 U.S.C. § 5845(f)(3), and for intent to provide material support to a
terrorist organization under 18 U.S.C. § 2339B. R. 16. The Tritons agreed to
plea bargains in exchange for information on Mrs. Ascot and Dixie Millions,
but Ms. Borne proclaimed her innocence and proceeded to trial. R. 16-17.
At trial, the government called an FBI agent specializing in activities
on the “Darknet.” R. 17. The agent testified that Ms. Borne was interested
in meeting Mr. Allen and members of other hacker groups in order to
convince them to not to “exploit bank, financial, and government security
flaws,” given the negative implications of that type of hacking. R. 17. The
record also reflected that the FBI was “nearly certain” Mrs. Ascot was a
member of Dixie Millions, and that some of her past students had been
mistakenly arrested as suspected hackers. R. 17. Ms. Borne testified that
Mrs. Ascot did not identify herself as a member of Dixie Millions or
encourage her to meet with Mr. Allen. R. 17.
The government also called an FBI ballistics expert to testify about the
materials that allegedly constituted a destructive device. R. 18. The expert
testified that the plastic filament formula, used to print a handgun, would
cause the gun to explode when fired, injuring the user and those in close
6
proximity. R. 18. The expert also testified that an individual could use the
hairspray, matches, and cylinder “trophy” to make a bomb.
R. 18.
The
government also introduced tweets from Ms. Borne’s Twitter account. R. 18.
One tweet, in the wake of the gun-related death of a classmate said, “With
one wish, I wish all guns would blow up. #guncontrol.” R. 18. Ms. Borne
also retweeted articles in support of Dixie Millions. R. 18. Based on this
evidence, Ms. Borne was convicted of both charges in the United States
District Court for the Central District of New Tejas. R. 18.
Ms. Borne timely appealed her conviction to the United States Court of
Appeals for the Fourteenth Circuit. R. 2. First, Ms. Borne challenged her
conviction under Section 5845(f)(3) on grounds that the district court applied
the incorrect standard to determine whether the materials in her possession
were destructive devices. R. 18. The Fourteenth Circuit disagreed, holding
that a mixed test was appropriate in order to “prevent the ambiguities of a
purely objective test or the limitations of an objective standard.” R. 19.
Ms. Borne also challenged her conviction under Section 2339B, arguing
that the statute was unconstitutional both on its face and as applied. R. 21.
The Fourteenth Circuit rejected both challenges, holding that Holder v.
Humanitarian Law Project was controlling and that the statute’s provisions
were sufficiently precise as applied. R. 21. The Fourteenth Circuit also held
that Ms. Borne intended and conspired to materially support Dixie Millions.
R. 22-23.
7
Ms. Borne then filed a petition for a writ of certiorari, which was
granted by this Court. R. 1.
SUMMARY OF THE ARGUMENT
A.
Application of 26 U.S.C. § 5845(f)(3)
Ms. Borne’s conviction under Section 5845(f)(3) should be reversed for
two reasons. First, the Fourteenth Circuit applied the wrong standard to
determine whether the items in Ms. Borne’s possession were destructive
devices. Second, the Fourteenth Circuit erred because under any test, the
items were not destructive devices.
This Court should apply an objective test to determine whether items
constitute a “destructive device” under Section 5845(f)(3).
Reading
subsection (f)(3) in its entirety and in the context of Congress’ regulatory
scheme shows that an objective test is appropriate. A purely objective test
also prevents a regulatory loophole and absurd results.
Additionally, the
legislative history of the National Firearms Act supports application of an
objective test. As demonstrated by congressional testimony and the Act’s
popular name, the Act was only intended to prohibit inherently dangerous
weapons.
Finally, an objective test should be applied for public police
reasons, since an objective test is more judicially administrable, does not
impermissibly expand the scope of federal criminal law, and adequately
protects Americans.
8
Under any test, however, the items in Ms. Borne’s possession were not
destructive devices. Applying an objective test, the items could not be readily
assembled into a destructive device because Ms. Borne did not possess all the
necessary items and even if she did, she would have been unable to quickly
construct a destructive device.
Furthermore, Ms. Borne did not have
subjective intent to use any of the items as a destructive device—the context
of her arrest does not suggest criminal intent, and she provided an innocent
explanation for her possession.
B.
Application of 18 U.S.C. § 2339B
The
Fourteenth
Circuit
failed
to
adequately
review
the
constitutionality of Section 2339B, and erroneously affirmed Ms. Borne’s
conviction. In seeking to meet and speak with Mr. Allen, Ms. Borne intended
to engage in pure political speech. Section 2339B criminalizes such speech on
the basis of its content, and therefore the statute is subject to strict scrutiny
review. Section 2339B fails strict scrutiny because it criminalizes a wide
swath of lawful advocacy, and therefore is not narrowly tailored to address
the government’s compelling national security interests. The government has
not sufficiently demonstrated why it is necessary to criminalize speech
advocating lawful activity. Furthermore, because Section 2339B criminalizes
association with designated groups without any corresponding intent to
engage in illegal activities, it creates a regime of “guilt by association” and
violates the First Amendment.
9
Additionally, Section 2339B is unconstitutional as applied to Ms.
Borne. Due process requires that criminal provisions be precise enough to
permit a reasonable person to conform their actions to the law. The types of
“material support” laid out in Section 2339B are impermissibly vague
because they do not provide adequate notice of what conduct is prohibited.
Because an objectively reasonable person in Ms. Borne’s shoes would have no
way of knowing that her intended conduct was illegal, application of Section
2339B to these facts violates the Due Process Clause.
Finally, even assuming that Section 2339B is constitutional both on its
face and as applied, the jury’s verdict is not supported by sufficient evidence
on the record and must be overturned. Due process requires that criminal
convictions be based on sufficient evidence to prove every element beyond a
reasonable doubt. In this case, the prosecution did not produce sufficient
evidence to prove that Ms. Borne intended to coordinate with Dixie Millions
or provide the group with material support, or that Ms. Borne knew Dixie
Millions was a terrorist organization under the statute.
ARGUMENT
I.
BECAUSE THEY ARE NOT OBJECTIVELY DANGEROUS, THE
ITEMS FOUND IN MS. BORNE’S POSSESSION DO NOT
QUALIFY AS “DESTRUCTIVE DEVICES” UNDER 26 U.S.C.
§ 5845(f)(3).
Weapons regulations must not reach further than necessary to ensure
protection of American citizens.
The National Firearms Act, 26 U.S.C.
§§ 5801-72 (2012), as amended by the Gun Control Act, 18 U.S.C. §§ 921-31
10
(2012),
(collectively
“the
Act”),
imposes
registration
and
taxation
requirements on individuals who possess, transport, import, manufacture,
and deal firearms and destructive devices.
The Act defines “destructive
device” to include “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) (2012) (“subsection (f)(3)”).
There is some disagreement regarding whether courts should consider
subjective intent in determining whether the defendant possessed a
destructive device under subsection (f)(3). Some circuits consider subjective
intent in determining whether items were “designed or intended” to be used
as a destructive device.1 See, e.g., United States v. Spoerke, 568 F.3d 1236,
1247-48 (11th Cir. 2009). However, the First, Second, Third, Fifth, Sixth, and
Eighth Circuits use an objective test that focuses exclusively on whether the
items in the defendant’s possession are objectively destructive by themselves.
See United States v. Urban, 140 F.3d 229, 234 (3d Cir. 1998); United States v.
Ragusa, 664 F.2d 696, 699 (8th Cir. 1981); United States v. Malone, 546 F.2d
Even within these circuits there is some disagreement regarding the extent
to which subjective intent should be considered. Some circuits use a purely
subjective test, which considers at the outset the defendant’s subjective
intent in creating the device or possessing the device’s component parts.
Other circuits, however, utilize a “mixed test,” which “first objectively looks
at whether the device can be used in innocent or destructive ways[, and] [i]f
the device is privy to both social and anti-social uses, the subjective intent of
the defendant may be considered.” Kristen A. Nardolillo, Dangerous Minds:
The National Firearms Act and Determining Culpability for Making and
Possessing Destructive Devices, 42 Rutgers L. J. 511, 521 (2011).
1
11
1182, 1184 (5th Cir. 1977); United States v. Markley, 567 F.2d 523, 527 (1st
Cir. 1977); United States v. Dalpaiz, 527 F.2d 548, 551 (6th Cir. 1975); United
States v. Posnjak, 457 F.2d 1110, 1113-19 (2d Cir. 1972).
In upholding Ms. Borne’s conviction under Section 5845(f)(3), the
Fourteenth Circuit erred in two respects.
First, the court erroneously
considered Ms. Borne’s subjective intent in determining whether she
possessed a destructive device. An objective test is compelled by statutory
text, legislative history, and public policy.
Second, the court erred by
concluding that a plastic cylinder, hairspray, matches, and two USB drives
constitute destructive devices, even considering subjective intent. This Court
reviews the decision of whether a defendant had the requisite intent to
possess a destructive device de novo. See, e.g., United States v. Lussier, 128
F.3d 1312, 1313 (9th Cir. 1997).
A.
This Court Should Use A Purely Objective Test To
Determine Whether Ms. Borne Possessed A Destructive
Device.
Because Section 5845(f)(3) does not call for consideration of the
defendant’s subjective intent, an objective test is proper. First, an objective
inquiry is compelled by proper interpretation of the language used in
subsection (f)(3). Second, an objective inquiry is consistent with the
legislative intent underlying subsection (f)(3). Finally, an objective inquiry is
most appropriate in light of several public policies relevant to criminal
enforcement of subsection (f)(3).
12
1.
An Objective Test Is Consistent With The Text Of
The Act.
Various principles of statutory interpretation demonstrate an objective
test is most appropriate. First, Section 5845(f)(3) must be read in context,
and in its entirety. See Food & Drug Admin. v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 132-33 (2000) (“The meaning—or ambiguity—of certain
words or phrases may only become evident when placed in context.”); see also
King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (stating “our duty, after all, is to
construe statutes, not isolated provisions.”). If subsection (f)(3) criminalized
possession of any item “designed or intended” to be used as a destructive
device, a subjective inquiry might be appropriate. But that is not all that
subsection (f)(3) says—the statute continues that only those items “designed
or intended for use in converting any device into a destructive device as
defined in subparagraphs (1) and (2)” constitute a “destructive device” under
subsection (f)(3). § 5845(f)(3) (emphasis added).
Therefore, a “destructive device” for purposes of subsection (f)(3) is
explicitly limited to those materials that can be “readily assembled” into the
devices already “defined in subparagraphs (1) and (2).” See United States v.
Oba, 448 F.2d 892, 900 (9th Cir. 1971) (Browning, J., dissenting).
“[S]ubparagraph [(f)](3) itself does not bring any device within the statute;
instead it brings within the statute a collection of parts from which a device
may be assembled.” Id. Courts agree that subsections (f)(1) and (f)(2) are
purely objective. Nardolillo, Dangerous Minds, supra, at 520. The addition of
13
the word “intent” in (f)(3) does not demand consideration of subjective intent
given the subsection’s proximity to two other objective provisions. Otherwise,
the subjective intent of the possessor, on its own, could “transform” any item
into a destructive device, despite the limited and objective nature of the
statute as a whole. See Posnjak, 457 F.2d at 1117-18.
Because subsection (f)(3) is limited to components that, readily
assembled, would create one of the objectively dangerous devices already
defined in subsections (f)(1) and (f)(2), the defendant’s subjective intent is
irrelevant.
The only relevant inquiry is whether the components are
objectively capable of creating a device that would be covered by the earlier
subsections.
This interpretation is consistent with Congress’ purpose in enacting
subsection (f)(3) in the first place—preventing a regulatory loophole whereby
disassembled devices covered by subsections (f)(1) and (f)(2) would escape
punishment. See Posnjak, 457 F.2d at 1116; Oba, 448 F.2d at 900 (Browning,
J., dissenting) (finding subsection (f)(3) “forecloses a means of easy evasion by
making it clear that the statute covers only the completed devices [in
subsections (f)(1) and (f)(2)] but also any collection of parts from which those
same devices may be assembled”). Subsection (f)(3) was never intended to
“broaden the group of devices which are covered; it merely precludes evasion
through possession of the unassembled components instead of the assembled
item.” Posnjak, 457 F.2d at 1116.
14
Limiting the scope of subsection (f)(3) to components that may be
readily assembled into devices in subsections (f)(1) and (f)(2) prevents absurd
results. Subsections (f)(1) and (f)(2) include devices that have no permissible
social use—devices where the “risk of anti-social use . . . [is] inherent in the
articles or in any suitability they had for conversion to a non-industrial
weapon.” Posnjak, 475 F.2d at 1119. A similar limit must be imposed on
subsection (f)(3) as well, or else the statute would criminalize possession of
virtually any item or combination of items. Where all that is necessary is the
“perversion of its purpose,” even a “parked motor . . . can be made a lethal
weapon.” Oba, 448 F.2d at 896 (Browning J., dissenting).
Unquestionably, subsection (f)(1)’s list of destructive devices is not
exhaustive. See § 5845(f)(1) (criminalizing possession of “similar devices” to
those listed).
But subsection (f)(1)’s “similar devices” language still
substantially limits subsection (f)(3)’s reach. The ejusdem generis canon of
statutory interpretation requires that a general term be interpreted in light
of the more specific terms that precede it. See 2A Norman Singer & Shambie
Singer, Sutherland Statutory Construction § 47:17 (7th ed. 2015). Subsection
(f)(3) is explicitly limited to “device[s] defined in subparagraphs (1) and (2)”
and “similar devices.” Because all of the devices defined in Subsections (f)(1)
and (f)(2) are objectively dangerous, and because the “similar device”
language must be interpreted in light of that fact, it follows that a “similar
device” must also be objectively dangerous. See Posnjak, 457 F.2d at 1116.
15
Interpreting the “similar device” language to broadly expand the types of
items covered by subsection (f)(3) would obviate that explicit limitation.
The affirmative defense to possession of a destructive device—that the
device was “neither designed nor redesigned as a weapon”—does not change
the objective nature of subsection (f)(3).
See § 5845(f)(3).
At most, the
affirmative defense “means that an intention not to use a device as a
weapon excludes that device from the Act,” even if it would otherwise qualify.
Oba, 448 F.2d at 904 (Browning, J., dissenting). However, that does “not
support the . . . proposition that an intention to use a device as a weapon
would subject that device to the Act” if it would not otherwise qualify.2 Id.
Furthermore, limiting subsection (f)(3) to objectively destructive items
is consistent with the principle of interpreting criminal statutes narrowly.
“[I]t is a well-established principle that criminal statutes are to be narrowly
rather than expansively construed, in order to avoid [punishing] any
activities and individuals the legislature did not mean to expose to liability.”
Posnjak, 457 F.2d at 1118 (citing United States v. Bass, 404 U.S. 336, 351
(1971)).
The objective test is narrow because it limits subsection (f)(3)’s
application to only those items that are destructive or can be readily
Further, reading the affirmative defense to create an “intent” exception to
subsection (f)(3) would create serious Fifth Amendment self-incrimination
problems. An intent requirement would obligate a possessor or transferor to
register a device only if he intended to use it destructively, which would
necessarily require “present[ing] intention to commit a criminal act.” Such a
requirement clearly violates the right against self-incrimination. See Oba,
448 F.2d at 904 (Browning, J., dissenting).
2
16
assembled into something destructive, without regard to the defendant’s
subjective intent. A subjective inquiry would improperly expand “destructive
device” to reach devices beyond those included in subsections (f)(1) and (f)(2)
and beyond those Congress intended to criminalize.
Finally, subsection (f)(3)’s “destructive device” language should be
interpreted in the context of all of Congress’ weapons regulations. A court
must “interpret the statute as a symmetrical and coherent regulatory scheme
and fit, if possible, all parts into a harmonious whole.” Brown & Williamson,
529 U.S. at 133 (internal quotation marks and citation omitted). Section
5845(f) is only one part of a wide-ranging weapons regulatory scheme. In
passing the Firearm Owners’ Protection Act, another part of the weapons
regulatory scheme, Congress added scienter requirements to related firearms
regulations.
See 18 U.S.C. § 922, 924.
However, Congress did not add
mental state requirements to the National Firearms Act.
Buckman, Just a Soul Whose Intentions are Good?
See Elliot
The Relevance of a
Defendant’s Subjective Intent in Defining a “Destructive Device” Under the
National Firearms Act, 79 Fordham L. Rev. 563, 599 (2010). Because related
weapons statutes specifically address scienter and statutes concerning
similar subject matter should be harmonized, an objective test is likewise
appropriate for subsection (f)(3).
2.
An Objective Test Is Appropriate Given The
Legislative Intent And History Of The National
Firearm And Gun Control Acts.
17
The legislative history of the National Firearm Act, as amended by the
Gun Control Act, demonstrates that Congress intended to limit destructive
devices to objectively dangerous items. The initial statute was spurred by
concerns with organized crime and therefore sought to eradicate the types of
weapons used by gangsters, such as submachine guns and sawed-off
shotguns. See Staples v. United States, 511 U.S. 600, 626 (1994) (“In 1934,
when Congress originally enacted the statute, it limited the coverage of the
1934 Act to a relatively narrow category of weapons . . . characteristically
used only by professional gangsters like Al Capone, Pretty Boy Floyd, and
their henchmen.”). Amendments in 1968 expanded the list of gangster-type
weapons covered by the statute because Congress sought to stop the influx of
military weapons or “weapons of war” following World War II. Oba, 448 F.2d
at 897-98 (citing S. Rep. No. 1501, 90th Cong., 2d Sess. 24 (1968); 114 Cong.
Rec. 26888 (1968) (remarks of Senator Dodd)). Such gangster-type weapons,
military weapons and “weapons of war” are objectively dangerous. Therefore,
Congress consistently intended to prohibit only those weapons that are
objectively dangerous and have no legitimate social use.
The colloquial name for the National Firearm Act at the time of its
passage also sheds light on Congress’ intended purpose for the Act. The title
of a statute may be used to resolve ambiguity and ascertain legislative intent.
Holy Trinity Church v. United States, 143 U.S. 457, 462-63 (1892) (“Among
other things which may be considered in determining the intent of the
18
legislature is the title of the act. We do not mean that it may be used to add
or take from the body of the statute, but it may help to interpret its
meaning.”) (citation omitted). Prior to amendments made in 1968, the Act
was known as the Machine Gun Act. Oba, 448 F.2d at 896 (Browning, J.,
dissenting).
This title demonstrates the type of weapons and destructive
devices that the legislature intended to regulate—“weapons of war with no
legitimate social use,” not devices whose ability to harm is unclear. Buckman,
Just a Soul Whose Intentions are Good?, supra, at 599.
This legislative history also confirms that the parts covered in
subsection (f)(3) are limited to those that can comprise one of the devices
covered by subsections (f)(1) and (f)(2). Because the types of weapons listed
in subsections (f)(1) and (f)(2) are gangster- and military-style weapons, the
component parts covered in subsection (f)(3) must necessarily be able to be
readily assembled into those same types of weapons.
In order to be a
destructive device under subsection (f)(3), the ultimately assembled weapon
must have no lawful uses, which is an objective inquiry. See id. at 587.
3.
Public Policy Supports An Objective Test.
Several public policies counsel in favor of applying an objective test to
subsection (f)(3). First, an objective test is more judicially administrable.
Because an objective standard does not consider a defendant’s subjective
intent, it is an easier test for judges to apply consistently.
Rather than
hypothesizing about a defendant’s subjective intent based on his actions or
19
statements, a judge weighs the easily observable objective characteristics of
the components in the defendant’s possession.
Second, an objective test appropriately limits the scope of federal
criminal law. The federal criminal code is vast and growing. See generally
Julie R. O’Sullivan, The Federal Criminal “Code” is a Disgrace: Obstruction
Statutes as a Case Study, 96 J. Crim. L. & Criminology 643 (2006). Indeed,
commentators and judges have criticized the code for criminalizing too many
actions. See Gonzalez v. Raich, 545 U.S. 1, 66 (2005) (noting that federal
laws have “encroached on State’s traditional police powers”); United States v.
Morrison, 529 U.S. 598, 636 n.10 (2000) (noting the Justices have “repeatedly
argued against federalization of traditional state crimes); Erik Luna, The
Overcriminalization
Phenomenon,
54
Am.
U.
L.
Rev.
703
(2005).
Overcriminalization is problematic because it “erodes the respect for, and
hence the deterrent impact of, the criminal law generally.” Ronald L. Gainer,
Federal Criminal Code Reform: Past and Future, 2 Buff. Crim. L. Rev. 45, 78
(1998).
Narrowly defining “destructive device” is consistent with limiting
federal criminalization to those actions that are most egregious and
deserving of federal attention. In fact, given the already broad regulatory
scheme applying to weapons, it is “not surprising . . . to find that the National
Firearms Act applies only to two narrow, precisely defined groups of highly
dangerous weapons which Congress thought to be, in themselves, so
20
amenable to antisocial use by private parties as to justify the strict
regulation.” Oba, 448 F.2d at 897 (Browning, J., dissenting).
Finally, an objective test adequately protects Americans. Because an
objective test captures inherently dangerous materials, subjective intent
would only be necessary to criminalize the conduct of a person who intends to
create a dangerous device but is caught before doing so.
However, the
definition of destructive device need not be manipulated to include subjective
intent in order to criminalize this conduct and protect Americans because
other statutes reach this conduct. See 18 U.S.C. § 1113 (attempted murder);
18 U.S.C. § 1117 (conspiracy to commit murder).
B.
Under An Objective Test, Ms. Borne Was Not In
Possession Of A Destructive Device.
Applying an objective test to the facts of this case, it is clear that Ms.
Borne did not possess a “destructive device” under Section 5845(f)(3). An
objective test ignores the defendant’s subjective intent and imposes liability
only when the defendant possesses items that, taken together, are
intrinsically dangerous and have no legitimate social use. See, e.g., Posnjak,
452 F.2d at 1114-19. Under an objective standard, “a defendant's subjective
intent could not render ‘destructive’ a device that otherwise would not fall
under [Section] 5845(f).” Buckman, Just a Soul Whose Intentions are Good?,
supra, at 586.
At trial, Ms. Borne was convicted of possession of two disassembled
destructive devices under subsection (f)(3). The first device was comprised of
21
matches, a plastic cylinder, and hairspray. The second device was comprised
of a gold USB device with a digital formula for a gun and a robot-shaped USB
drive with a formula for a plastic filament. Under an objective test, neither
collection of components constituted a “destructive device.”
1.
The Items In Ms. Borne’s Possession Had
Legitimate Social Uses, And Are Not Inherently
Dangerous.
The initial question under an objective test is whether the materials in
the defendant’s possession “ha[ve] any value other than as a weapon.”
Spoerke, 568 F.3d at 1247 (citing United States v. Hammond, 371 F.3d 776,
781 (11th Cir. 2004)); see also United States v. Johnson, 152 F.3d 618, 627
(7th Cir. 1998) (“[T]he case law demonstrates a fundamental distinction
between devices and components that are, by their very nature, ones that can
be used only for illegal purposes and devices and components that could have
both a proscribed and a legitimate use.”). The materials need not have an
exclusively benign purpose. See United States v. Fredman, 833 F.2d 837, 838
(9th Cir. 1987) (finding combination of materials could be a benign
commercial blasting device or a dangerous explosive).
Unlike the components of machine guns and grenades, which are, by
their nature, dangerous and destructive, the items in Ms. Borne’s possession
have legitimate social uses. As to the first device, matches are commonly
used for camping and cooking, and hairspray is a popular cosmetic product
that any traveling woman might be expected to carry. The cylinder, with its
22
raft attached, was really a “trophy,” symbolizing Ms. Borne’s diligent coding
efforts and her practiced skills. R. 24. As to the second device, the digital
code on the gold USB could produce a handgun legally used for protection, as
long as it was registered, and the plastic filament formula on the
robot-shaped USB could be used to create various plastic products, such as
cups or toys.
2.
The Items In Ms. Borne’s Possession Could Not
Have Been “Readily Assembled” Into A Device
Covered By Subsections (f)(1) Or (f)(2).
The objective test also considers whether the parts can be “readily
assembled” into a destructive device covered by subsections (f)(1) and (f)(2).
Whether parts can be “readily assembled” depends on both possession of all
the elements necessary to construct the device, and the amount of time it
would take to combine the component parts into a device. Ms. Borne neither
possessed all of the component parts the devices, nor could she have
assembled the devices in a short amount of time even if she did have all the
parts. Therefore, neither of the devices could have been “readily assembled.”
First, the objective test requires that the defendant possess all of the
elements necessary to assemble a destructive device. See Malone, 546 F.2d at
1183 (5th Cir. 1977) (holding the defendant did not have a destructive device
because he did not possess any explosive material); Posnjak, 457 F.2d at 1120
(finding that the defendant did not have all the materials necessary to build a
bomb in his possession). As the court in Malone explained, “The words of the
23
statute are ‘from which a destructive device may be readily assembled’, and
not, as the government contends, ‘from which a destructive device may be
readily assembled with addition of other parts.’” Malone, 546 F.2d at 1184.
The first device fails this requirement because Ms. Borne did not
possess a fuse, a cap, or similar items required to detonate a pipe bomb. Cf.
Malone, 546 F.2d at 1183 (holding defendant lacked explosive material and
thereby did not have a destructive device). The government failed to provide
evidence that the first alleged device would work without common pipe bomb
materials. R. 18.
Ms. Borne also lacked some materials necessary to complete the second
device. Assuming that the two USB drives were in Ms. Borne’s possession,3
she still would have needed a 3D printer and raw materials to produce a
plastic gun and the filament from the code contained on the USBs. Neither of
these items are readily available, particularly to a high school student in a
foreign country. Without those items, the plans and formulas are just data,
incapable of being assembled into anything at all. Finally, once the gun was
printed, Ms. Borne still would have needed a bullet or other explosive to
make the gun functional such that it could cause the potential injuries
alleged by the government’s expert.
R. 18.
Because Ms. Borne lacked
possession of these parts, she did not possess a destructive device.
As argued fully in Part II.C.2, there are significant issues regarding the
Fourteenth Circuit’s assertion that Ms. Borne actually knew of or possessed
either of these items.
3
24
Second, in determining whether items can be “readily assembled” into
a destructive device, courts must consider the amount of time it would take to
combine the component parts into said device. See United States v. Langan,
263 F.3d 613, 617, 626 (6th Cir. 2001); United States v. Pearce, No. 03-1456,
2004 WL 231779, at *1-2 (6th Cir. Feb. 5, 2004). In Langan, a pipe covered in
wires and filled with an explosive powder was held to be a destructive device
because it would take defendant “only a few seconds” to make the device
operable. See 263 F.3d at 617, 626. Similarly, in Pearce, a capped pipe full of
explosive powder was held to be a destructive device because it could be
assembled into a pipe bomb “in a matter of minutes.” See 2004 WL 231779,
at *1-2; see also Markley, 567 F.2d at 527 (pipe that was pre-filled with
explosive powder, sealed with wax, and contained fuse held to be a
destructive device).
Unlike the devices in Langan and Pearce, the first device would take
more than a few seconds or minutes to assemble. Additionally, unlike the
device in Markley, the materials in Ms. Borne’s possession were not combined
in any way. The cylinder, which allegedly would form the body of a pipe
bomb, was not even ready to be filled and sealed, because the printing raft
was still attached to the bottom. R. 10. Furthermore, the second device
would have required at least half a day, and likely much longer, to assemble.
It took Mr. Triton twelve hours to print the cylinder alone using the 3D
printer, R. 10., so it is likely that Ms. Borne would have required significantly
25
more time to print an entire gun. The Fourteenth Circuit’s statement that
“digital items can be made into tangible items in the blink of an eye” is
inaccurate as applied to this case. R. 12. Because matches, hairspray, a
cylinder, and USB drives have benign purposes and cannot be “readily
assembled” in a few minutes without additional materials, Ms. Borne did not
possess a destructive device under the objective standard.
C.
Even Considering Subjective Intent, Ms. Borne Did Not
Possess A Destructive Device.
Even if this Court considers Ms. Borne’s subjective intent, she still did
not possess a “destructive device” for purposes of Section 5845(f)(3).
The
context in which Ms. Borne possessed the materials, her lack of knowledge
regarding some of the materials, and her statements demonstrate Ms.
Borne’s innocent intent to transport her possessions to Azran for a
study-abroad program.
The context in which the defendant possessed the materials is an
important indicator of a defendant’s subjective intent. Compare Fredman,
833 F.2d at 839-40 (holding defendant lacked criminal intent where he was
not transporting components with other indicia of dangerousness), with
United States v. Loud Hawk, 628 F.2d 1139, 1142 (9th Cir. 1979) (inferring
criminal intent where defendant possessed other weapons, engaged in a
police chase, and exchanged gunshots with officers). Ms. Borne’s case is more
like that in Fredman and less like that in Loud Hawk. Like in Fredman, Ms.
Borne was not in possession of additional weapons at the time of the traffic
26
stop. R. 16. Unlike in Loud Hawk, Ms. Borne did not resist the traffic stop,
rather, the driver of Ms. Borne’s car obediently pulled over and there is no
evidence that Ms. Borne failed to cooperate with the officer during the stop.
R. 13-14. Furthermore, Ms. Borne was stopped on her way to participate in a
benign academic program abroad. R. 12-14. Therefore, the context in which
Ms. Borne possessed the matches, hairspray, cylinder, and USB drives did
not demonstrate any criminal intent.
Additionally, Ms. Borne could not have subjectively intended to use the
component parts to create a destructive device because she likely lacked
knowledge that she even possessed some of those components in the first
place. As to the first device, the matches were likely accidentally left in Ms.
Borne’s luggage after a family camping trip as they were stuffed “[i]nside a
small, waterproof, interior pocket of the duffel bag” the family used for those
purposes. R. 12. Therefore, Ms. Borne likely did not know the matches were
in her luggage.
Ms. Borne also lacked knowledge that she possessed
components of the second device. Not only was the gold USB not in Ms.
Borne’s belongings, but she only had reason to believe that the drive stored
music and nothing else. R. 16 (Mr. Triton told the girls that the gold USB
drive contained music, and even he was surprised to learn that the guns
plans were still on it). Nor was Ms. Borne aware that Ms. Triton saved the
plastic filament to the robot-shaped USB or that Ms. Triton had packed that
USB drive in her own luggage. R. 11. Because Ms. Borne was not aware that
27
she possessed certain components of the alleged destructive devices, she
lacked criminal intent.
Finally, Ms. Borne’s statements demonstrate a peaceful and innocent,
not criminal or violent, intent.
The government introduced Ms. Borne’s
tweets as evidence of her criminal or violent intent, but a plain reading of
those tweets proves otherwise. Ms. Borne tweeted, “With one wish, I wish all
guns would blow up. #guncontrol.” R. 18. The hashtag Ms. Borne used—
“#guncontrol”—and the fact that the tweet followed the gun-related death of
a classmate demonstrates that Ms. Borne’s wish for guns to “blow up” was a
plea for future peace and non-violence.
R. 18.
Additionally, re-tweeting
articles supporting Dixie Millions, R. 18, shows that Ms. Borne supported
fairness, as she viewed Dixie Millions as “White Hat Hackers,” not violent
criminals. See 1 Kirsten M. Koepsel Data Sec. & Privacy Law § 1:11 (2015)
(defining “White Hat Hackers” as “the benevolent form of hackers”).
Evidence of Ms. Borne’s subjective intent proves that the materials in
Ms. Borne’s possession were not destructive devices. Ms. Borne possessed the
matches, hairspray, cylinder, and USB drives independent of any other
weapons, and she did not resist the traffic stop. Furthermore, Ms. Borne did
not know that the codes for the gun and plastic filament formula were saved
to the USB drives, and relevant tweets by Ms. Borne demonstrate an interest
in peace and fairness.
Therefore, no criminal or violent intent can be
28
inferred, and subjective intent supports finding that the components were not
destructive devices.
II.
THE FOURTEENTH CIRCUIT ERRED IN AFFIRMING MS.
BORNE’S CONVICTION UNDER 18 U.S.C. § 2339B.
Historically, this Court has placed strict limits on the government’s
ability to criminalize speech and association that might lead to harm or
violence. Even subversive speech is protected unless it is intended and likely
to produce “imminent lawless action.” Brandenburg v. Ohio, 395 U.S. 444,
447 (1969).
Additionally, the government cannot criminalize mere
association with a criminal organization unless there is specific intent to
further the organization’s goals by illegal means. Scales v. United States, 367
U.S. 203, 229 (1961). These limits are essential to prevent undue hindrance
of fundamental First Amendment rights.
Because Section 2339B criminalizes protected expression that does not
meet the strict requirements established in Brandenburg and Scales, the
statute is unconstitutional on its face. Given the gravity of constitutional
rights at stake, stare decisis does not require continued adherence to this
Court’s decision in Holder v. Humanitarian Law Project, 561 U.S. 1 (2010).
Furthermore, because provisions of Section 2339B fail to provide adequate
notice of what conduct is prohibited, the statute is unconstitutionally vague
as applied. Even if the statute is constitutional, however, the jury’s verdict is
not supported by sufficient evidence and must be overturned. See Jackson v.
Virginia, 443 U.S. 307 (1979).
29
A.
Section 2339B Violates The First Amendment
Criminalizing Protected Speech And Association.
By
Because Section 2339B criminalizes protected speech and association,
it violates the First Amendment. In attempting to meet and speak with Mr.
Allen, Ms. Borne sought to engage in pure political speech. Such speech “is at
the core of what the First Amendment is designed to protect.” Virginia v.
Black, 538 U.S. 343, 365 (2003).
Despite the fact that Section 2339B
impermissibly criminalizes both this and other protected speech, the
Fourteenth Circuit affirmed Ms. Borne’s conviction. Because the decision of
the Fourteenth Circuit defies decades of controlling First Amendment
precedent, it must be reversed. Furthermore, given its narrow holding and
the important constitutional interests at stake, stare decisis does not require
adherence to this Court’s contrary decision in Humanitarian Law Project.
1.
Section 2339B Is Not “Narrowly Tailored” To
Address A Compelling Government Interest, And
Therefore Fails Strict Scrutiny.
Section 2339B severely infringes on the core of the First Amendment’s
protection of free speech and association.
Ms. Borne seeks to engage in
lawful political speech by communicating with Mr. Allen.
R. 12.
The
government has interpreted Section 2339B to criminalize that very speech.
Id. Indeed, Section 2339B broadly criminalizes pure political speech (in the
form of “service,” “training,” “expert advice,” and “personnel”) based solely on
its content—speech is illegal when made to certain organizations, but not
others.
30
This Court has held that lawful political speech “is at the heart of the
First Amendment’s protections.” See First Nat. Bank of Boston v. Bellotti,
435 U.S. 765, 776 (1978).
Correspondingly, content-based prohibitions of
such speech are subject to strict or “exacting” scrutiny. See R.A.V. v. City of
St. Paul, 505 U.S. 377, 382 (1992); see also Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622, 642 (1994) (“Our precedents thus apply the most exacting
scrutiny to regulations that . . . impose differential burdens upon speech
because of its content.”). Statutes subject to strict scrutiny are presumptively
invalid, and “may be justified only if the government proves that they are
narrowly tailored to serve compelling state interests.” See, e.g., Reed v. Town
of Gilbert, 135 S. Ct. 2218, 2226 (2015). A statute is “narrowly tailored” when
it represents “the least restrictive means” to further a compelling state
interest. See Sable Commc’ns. of California, Inc. v. FCC, 492 U.S. 115, 126
(1989). Under strict scrutiny, it makes no difference whether the government
can assert a legitimate or content-neutral reason for the prohibition. Turner
Broad. Sys., Inc., 512 U.S. at 642.
Admittedly, the government has a “compelling interest” in preventing
both the growth and legitimization of terrorist organizations.
However,
Section 2339B’s wide-sweeping criminalization of all political speech made to
such organizations is certainly not “narrowly tailored” to serve that interest.
The government has not shown that criminalizing speech urging terrorist
organizations to stop their illegal activities (or, as here, speech wholly
31
unrelated to the group’s activities) is in any way necessary to promote the
national security interests underlying Section 2339B.
When a statute criminalizes a wide array of protected speech, it is
“overbroad” and therefore unconstitutional. See New York State Club Ass'n,
Inc. v. City of New York, 487 U.S. 1, 11 (1988).4 In Village of Schaumburg v.
Citizens for a Better Environment, 444 U.S. 620 (1980), this Court invalidated
an
ordinance
that
prohibited
door-to-door
solicitation
by
charitable
organizations that did not use at least seventy-five percent of their donations
for “charitable purposes.”
This Court noted that the ordinance could not
constitutionally apply to charitable organizations formed solely to “gather
and disseminate information.” Id. at 635. Because the ordinance made no
attempt to distinguish between such organizations and more traditional
charities formed to give to the poor (to which it could constitutionally apply),
this Court held the ordinance was facially invalid. Id.
Similarly, Section 2339B criminalizes pure speech without regard to
whether it actually furthers any terrorist activity. Even if Section 2339B
could be applied in certain situations (e.g., where speech is intended and
likely to incite imminent lawless action), it is not sufficiently limited to such
situations, and therefore sweeps too broadly.
Even though the First Amendment protects Ms. Borne’s speech in this case,
she can still raise a facial challenge based on overbreadth. See Nunez by
Nunez v. City of San Diego, 114 F.3d 935, 949 (9th Cir. 1997) (referencing
Sec'y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 967 (1984)
(permitting an overbreadth challenge when a statute “create[s] an
unacceptable risk of the suppression of ideas”)).
4
32
The record is devoid of evidence that Ms. Borne intended or conspired
to engage in speech that would further the group’s illegal activities. In fact,
the prosecution admitted during cross-examination that Ms. Borne intended
to urge groups like Dixie Millions to focus on legal activities. R. 17. But even
if Ms. Borne did intend to advocate on behalf of the group’s illegal conduct,
the government still would not have carte blanche to criminalize that speech.
In Brandenburg, this Court held that even subversive speech is protected by
the First Amendment unless intended and likely to produce “imminent
lawless action.” See 395 U.S. at 447. Brandenburg was a seminal decision,
and has been repeatedly reaffirmed by this Court. Therefore, even if Section
2339B was limited to political speech designed to further a group’s illegal
activities—which it is not—it would still need to be limited to situations in
which the speech is likely to incite imminent lawless action. Because there is
no such limitation in the statute, Section 2339B is unconstitutional.
2.
By Creating A Regime Of “Guilt By Association,”
Section 2339B Violates The First Amendment Right
To Freedom of Association.
Furthermore, Section 2339B violates the First Amendment right to
freedom of association by criminalizing intent to provide “service” or
“personnel” without requiring intent to engage in or further illegal activities.
The First Amendment broadly protects the right to “express one's attitudes or
philosophies by membership in a group or by affiliation with it or by other
lawful means.”
See Griswold v. Connecticut, 381 U.S. 479, 483 (1965).
33
Section 2339B impermissibly burdens this right by criminalizing pure speech
communicated to designated organizations.
See supra Part II.A.1.
More
directly, the “service” and “personnel” prongs of “material support” directly
criminalize association even when the individual does not intend to engage in
illegal activity. See 18 U.S.C. § 2339A(b)(1) (2012).
Previously, this Court addressed similar efforts by the government to
criminalize mere association with a disfavored organization—typically the
Communist party. In Scales, this Court held that Congress could not punish
mere membership in the Communist Party without proof of “specific[] inten[t]
to accomplish [the aims of the organization] by resort to violence.” 367 U.S.
at 229; see also Noto v. United States, 367 U.S. 290 (1961) (holding intent to
incite violence rather than abstract teaching of Communist theory is required
for criminal punishment). Similarly, in United States v. Robel, 389 U.S. 258,
262 (1967), this Court held that the government could not prohibit
Communist Party members from working certain government jobs absent a
showing that those individuals intended to further the group’s unlawful
activities.
Finally, in De Jonge v. Oregon, 299 U.S. 353, 365 (1937), this
Court reversed a criminal conviction for active participation in the
Communist Party because there was no evidence that the defendant’s actions
promoted illegal conduct.
Therefore, this Court has consistently held that mere association
cannot sustain criminal conviction under the First Amendment, no matter
34
how distasteful the group or its values. Despite this, Section 2339B imposes
a criminal penalty on those who attempt or conspire to provide “service” or
“personnel” to a terrorist organization without distinction as to whether they
intend to further the organization’s illegal activities.
Section 2399B is
therefore substantially similar to the governmental actions challenged in
Scales, Robel, and De Jonge, each of which were found held unconstitutional.
Because Section 2339B criminalizes mere association and severely burdens
the right to association, it must be overturned.
3.
Stare Decisis Does Not Require Continued Reliance
On This Court’s Contrary Decision In Holder v.
Humanitarian Law Project.
Given the gravity of constitutional interests at stake, stare decisis does
not require continued reliance on this Court’s decision in Humanitarian Law
Project. In Humanitarian Law Project, this Court held that Section 2339B
does not violate the First Amendment because it does not criminalize “pure
political speech,” but rather the provision of “material support” in the form of
speech. 561 U.S. at 28. Furthermore, this Court held that Section 2339B is
sufficiently narrow, and that any distinction between support for legal versus
illegal activity is spurious.
Id. at 29-30.
Both decisions represent a
significant and unjustified retreat from well-established Supreme Court
precedent.
Humanitarian Law Project breaks significantly with precedent strictly
limiting the government’s authority to criminalize speech and association
35
that might result in future harm. See Brandenburg, 395 U.S. at 447 (holding
that subversive speech is protected unless it is intended and likely to produce
“imminent lawless action”); Scales, 367 U.S. at 229 (requiring a finding of
intent to further an organization’s illegal activities). These cases and their
progeny represent some of this Court’s most fundamental First Amendment
decisions.
See David Cole, The First Amendment’s Borders: The Place of
Holder v. Humanitarian Law Project In First Amendment Doctrine, 6 Harv.
L. & Pol’y Rev. 147, 156 (2012). Humanitarian Law Project made no attempt
to distinguish, and in fact did not even address Brandenburg or Scales.
Additionally, Humanitarian Law Project applies an unheard of form of
strict scrutiny.
Although this Court stated that Section 2339B’s content
based prohibitions of speech should be subject to strict scrutiny, it proceeded
to give unprecedented deference to the government’s assertions. This Court
has previously deferred to the legislature on matters of national security, see,
e.g., Rostker v. Goldberg, 453 U.S. 57, 65 (1981), but it has never done so in
reviewing a content-based prohibition of speech. Even though the government
has not, and likely cannot, show that a complete prohibition of political
speech advocating lawful action is necessary to protect national security, the
Court nonetheless upheld Section 2339B’s application to such speech. See
Cole, The First Amendment’s Borders, supra, at 159.
The Court appears to have deferred to the government’s bare assertion
that terrorist organizations “are so tainted by their criminal conduct that any
36
contribution to such an organization facilitates that conduct.”
See
Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110
Stat. 1214, 1247 (1996). But the government did not produce any evidence to
substantiate that assertion. Given the important First Amendment rights at
stake, and the Court’s agreement that strict scrutiny should apply, a more
searching inquiry was required. See Landmark Commc’ns, Inc. v. Virginia,
435 U.S. 829, 843 (1978) (“Deference to a legislative finding cannot limit
judicial inquiry when First Amendment rights are at stake.”)
Humanitarian Law Project itself makes clear that its decision is tightly
limited, stressing, “we also do not suggest that Congress could extend the
same
prohibition
on
material
support
at
issue
here
to
domestic
organizations.” 561 U.S. at 39. In noting that different facts might change
the First Amendment analysis, this Court clearly signaled that the decision
in Humanitarian Law Project was not meant to extend far beyond the
particular facts of that case. Accordingly, the Ninth Circuit has interpreted
Humanitarian Law Project narrowly, holding that the First Amendment
prohibits application of Section 2339B to advocacy coordinated with a
domestic organization.
See Al Haramain Islamic Foundation, Inc. v. U.S.
Dept. of Treasury, 660 F.3d 1019 (9th Cir. 2011).
Much like Al Haramain Islamic Foundation, the facts of this case are
easily distinguishable from Humanitarian Law Project. First, Dixie Millions
is a “domestic organization,” meaning this case falls squarely within the
37
exception laid out in Humanitarian Law Project. R. 5. Second, while the
defendant organization in Humanitarian Law Project clearly intended to
support and work with a terrorist organization (albeit only with regard to
legal activities), there is no evidence that Ms. Borne similarly intended to join
or work with Dixie Millions at all. Finally, while the nature of defendant’s
support in Humanitarian Law Project was clear, it is completely speculative
what Ms. Borne would have done if she had found Mr. Allen in Azran.
As this Court has stated, “[I]t is common wisdom that the rule of stare
decisis is not an inexorable command.”
See Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854 (1992) (internal
quotations omitted).
Instead, when reviewing prior precedent, this Court
must consider prudential and pragmatic considerations “designed to test the
consistency of overruling a prior decision with the ideal of the rule of law.” Id.
(specifically
identifying
considerations
such
as
workability,
reliance,
subsequent development of legal principles, and changes in facts).
Here, because Humanitarian Law Project directly conflicts with
existing First Amendment precedent, its future application to future cases is
unworkable. Cf. Garcia v. San Antonio Metro Transit Auth., 469 U.S. 528,
546-47 (1985) (rejecting as “unworkable” a previous rule of state immunity
from federal regulation). And, given that Humanitarian Law Project was
decided only five years ago, the decision has not produced the type of reliance
that might counsel against reversal.
38
In sum, Humanitarian Law Project simply cannot coexist with this
Court’s long history of First Amendment precedent. Given its narrow holding
and the importance of correcting any inconsistencies regarding First
Amendment principles, this Court should reverse Humanitarian Law Project.
Stare decisis does not require continued reliance on a case that was
incorrectly decided.
In the alternative, this Court should explicitly limit
Humanitarian Law Project’s First Amendment analysis to the facts of that
case and conduct a de novo review here.
B.
Section 2339B Is Unconstitutionally Vague As Applied To
The Facts Of This Case.
Because Section 2339B’s terms are vague and imprecise, the statute
cannot be applied to Ms. Borne in this case.
Section 2339B’s “material
support” provision criminalizes much more than providing tangible goods to a
terrorist organization. Indeed, the statute criminalizes, among other things,
speech and association in the form of “training,” “expert advice,” and
“personnel.” See § 2339A(b)(1). Because those terms are not clearly defined,
especially as applied to the facts of this case, the statute violates the Due
Process Clause of the Fifth Amendment.
Due process requires that criminal statutes be “so clearly expressed
that the ordinary person can intelligently choose, in advance, what course it
is lawful for him to pursue.” Connally v. General Constr. Co., 269 U.S. 385,
393 (1926); see also Marks v. United States, 430 U.S. 188, 191 (1977) (holding
due process requires that “persons have a right to fair warning of that
39
conduct which will give rise to criminal penalties”). The demand for clarity
increases with the gravity of the penalty and constitutional rights at stake.
See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.
489, 498-99 (1982) (imposing a higher due process standard for criminal
statutes and when speech is at stake). Because Section 2339B implicates
fundamental First Amendment rights and because a conviction under the
statute could result in a life sentence, the statute is subject to heightened
vagueness scrutiny. See Reno v. Am. Civil Liberties Union, 521 U.S. 844,
871-72 (1997).
A criminal statute is unconstitutionally vague if it does not “give [a]
person of ordinary intelligence a reasonable opportunity to know what is
prohibited.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Here, an
objectively reasonable person would not have an opportunity to know that
Ms. Borne’s actions were illegal under Section 2339B. There are four “types”
of material support that Ms. Borne could conceivably have been convicted of
conspiring to provide. Each “type” of material support will be dealt with in
turn.
1.
Property.
First, the statute generally prohibits the provision of “property,
tangible or intangible” to terrorist organizations.
§ 2339A(b)(1).
provision meant any property, it would be sufficiently clear.
If this
However
because Section 2339B only criminalizes provision of material support, it
40
must be limited to only certain types of property. As Justice Breyer noted in
Humanitarian Law Project, “material” can mean either: (1) “being of a
physical or worldly nature”; or (2) “being of real importance or great
consequence.” 561 U.S. at 57 (Breyer, J., dissenting) (citing Webster’s Third
New International Dictionary 1392 (1961)). Because the statute’s definition
of “material support” clearly and unambiguously criminalizes provision of
“intangible” goods, the first definition cannot apply. Therefore, only property
of “importance or great consequence” qualifies as “material support.”
As a result, Section 2339B requires criminal defendants to determine,
ex ante, whether the property would be of “importance or great consequence”
to a terrorist organization. Although there may be some situations in which
a defendant would be able to make that determination (e.g., if she intended or
conspired to provide weapons) that is not the case here.
None of the “property” identified by the Fourteenth Circuit would
clearly be important to Dixie Millions.5 First, it is almost certain that the
computer savvy members of Dixie Millions would be able to independently
create a “perfect cylinder” formula and 3D gun plans with minimal effort,
especially since a high school student developed the formula and the plans
were simply downloaded from the Internet. R. 9, 11. Any time that Ms.
Borne might have saved the group by providing the items would be de
As argued fully in Part II.C.2, there are significant issues regarding the
Fourteenth Circuit’s assertion that Ms. Borne actually knew of or possessed
either of these items.
5
41
minimis, and certainly not of “great consequence.” Furthermore, there is
simply no evidence to suggest Dixie Millions would be interested in or have
any use for the plastic filament formula or the gun plans. Even if these items
do qualify as “material” property under Section 2339B, an objectively
reasonable person would have no way of making that determination ex ante,
and therefore the provision is unconstitutionally vague as applied.
2.
Expert Advice Or Assistance.
Section 2339B’s prohibition on providing “expert advice or assistance”
necessarily forces a criminal defendant to determine whether any of the
advice or assistance she intends to provide “derives from scientific, technical,
or other specialized knowledge.” See § 2339A(b)(3). The statute provides no
principled way for a defendant to make this determination. “Specialized” is a
term of degree that admits of a significant amount of discretion, and
therefore fails to provide constitutionally adequate notice of criminal
prohibition.
See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1048-49
(1991) (holding that “general” and “elaboration,” as terms of degree, fail to
provide constitutionally adequate notice). A reasonable person in Ms. Borne’s
position would have no way of deciding whether her intended advice or
assistance qualifies as “expert,” particularly given that the recipient itself
would determine exactly what role she could play. For these reasons, the
“expert advice or assistance” provision is unconstitutionally vague as applied.
3.
Service.
42
Although Section 2339B prohibits intent to provide “service,” it makes
absolutely no attempt to define that term. Properly interpreted, the word
“service” means “an act done for the benefit or at the command of another.”
Webster’s Third International Dictionary 2075 (1971).
But a reasonable
person would not know what activities Dixie Millions would consider
beneficial.
The record suggests that Ms. Borne wanted to meet Mr. Allen in order
to develop a mentorship relationship. R. 12. Would establishment of such a
relationship constitute an “act”?
More importantly, would it in any way
benefit Dixie Millions? Would it benefit Dixie Millions if Ms. Borne tweeted
supportive messages?
If she were to urge Dixie Millions to stop hacking
government servers?
Section 2339B provides no principled way for a
reasonable person to determine, ex ante, whether anything in the boundless
range of potential human action would qualify as “service.” For that reason,
the provision is unconstitutional as applied to Ms. Borne.
4.
Personnel.
“Personnel” is limited to situations where individuals intend or
conspire to “work under [the] terrorist organization’s direction or control.”
§ 2339B(h). Accordingly, “individuals who act entirely independently . . . to
advance [the organization’s] goals or objectives” do not violate the statute.
Id. This limit, however, creates vagueness problems as applied to these facts.
Because the statute only explicitly excuses “entirely” independent action, it
43
leaves a gray area between actions that are entirely independent and those
performed under the “direction or control” of a terrorist organization. The
statute makes no attempt to clarify just how much oversight by a terrorist
organization is necessary to qualify as “direction or control.”
Here, it is clear that Ms. Borne intended to study abroad in Azran. R.
4-5. She also intended to meet with Mr. Allen, but it is entirely unclear
whether that one meeting would qualify as “direction or control” by Dixie
Millions. Even assuming arguendo that Ms. Borne intended to conduct her
own “white hat hacking” inspired by Dixie Millions, it is unclear whether that
inspiration qualifies as “direction or control.” Additionally, given the unique
organizational structure of “hacktivist” groups, the degree of Dixie Millions’
“direction or control” would be unclear even if Ms. Borne specifically intended
to join the organization. R. 22 (noting “hacktivist” groups like Dixie Millions
“revel in their lack of formal structures”). Because a reasonable person would
not be put on notice that intent to speak or work with Mr. Allen triggers the
“direction or control” of Dixie Millions, the “personnel” provision is
unconstitutionally vague as applied.
C.
The Jury’s Verdict Must Be Overturned Because It Was
Not Supported By Sufficient Evidence.
Even if Section 2339B is constitutional, the government failed to
produce sufficient evidence for a rational jury to convict Ms. Borne.
Conviction relies on the application of statutory and constitutional law to
historical facts. See Jackson, 443 U.S. at 320 (1979) (holding that a fact-
44
finder must rationally apply legal standards to the facts in evidence).
Therefore, even though a jury’s factual conclusions are entitled to deference,
see U.S. Const. amend. VII (“no fact tried by a jury, shall be otherwise
reexamined in any court of the United States”), conviction is not a purely
factual question, and the jury’s decision is reviewable on appeal.
A conviction must be overturned when it is not supported by sufficient
evidence to prove guilt beyond a reasonable doubt. See Jackson, 443 U.S. at
319.
In this case, the jury did not have sufficient evidence to find that:
(1) Ms. Borne acted in coordination with Dixie Millions; (2) Ms. Borne
intended to provide material support to Dixie Millions; or (3) Ms. Borne knew
Dixie Millions qualified as a terrorist organization. Because the jury cannot
lawfully convict under Section 2339B unless each of these elements is
supported by sufficient evidence, the jury’s verdict must be overturned.
1.
Due Process Requires That A Criminal Verdict Be
Supported By Sufficient Evidence.
A criminal conviction that is not supported by sufficient evidence to
“pro[ve] beyond a reasonable doubt . . . every fact necessary” to constitute the
crime, must be overturned. In re Winship, 397 U.S. 358, 364 (1970).
Accordingly, this Court has recognized that due process requires reversal of a
conviction in two situations: (1) when there is no evidence to support a
necessary element; and (2) when there is insufficient evidence to support a
necessary element. See Thompson v. City of Louisville, 362 U.S. 199, 206
(1960) (holding that that it is “a violation of due process to convict and punish
45
a man without evidence of his guilt”); see also Jackson, 443 U.S. at 319.
These standards protect against arbitrary deprivations of liberty, as well as
deprivations based on something less than “beyond a reasonable doubt.”
In Thompson, this Court held that a conviction cannot stand when
prosecution fails to produce any evidence as to a necessary element. See 362
U.S. at 206. But Thompson’s “no evidence” test does not conclude the due
process inquiry.
In Jackson, this Court additionally held that criminal
convictions must be supported by sufficient evidence. See 443 U.S. at 319.
Because due process demands that “no person shall be made to suffer the
onus of a criminal conviction except upon sufficient proof” this Court held
that a “mere modicum” of evidence cannot support conviction beyond a
reasonable doubt. Id. at 320 (citing In re Winship, 397 U.S. at 358).
A verdict lacks sufficient evidence when “no rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.”
Id. at 319. To be sure, Jackson does not create a de novo standard of review
for jury verdicts on appeal. See Woodby v. Immigration & Naturalization
Serv., 385 U.S. 276, 282 (1966) (holding that a court “does not ask itself
whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt”); accord United States v. Tresvant, 677 F.2d 1018, 1021
(4th Cir. 1982) (“The relevant question is not whether the appellate court is
convinced of guilt beyond a reasonable doubt.”).
Instead, the court must
determine, after examining the evidence in the “light most favorable to the
46
prosecution, [whether] any rational [jury] could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319
(emphasis in original). This standard of review only “impinges upon jury
discretion to the extent necessary to guarantee the fundamental protection of
due process of law.” Id.
2.
The Jury Did Not Have Sufficient Evidence To Find
That Ms. Borne’s Actions Were Coordinated Or
Directed By Dixie Millions.
Because the jury did not have sufficient evidence to find that Ms.
Borne acted in coordination with Dixie Millions, the conviction must be
overturned. Section 2339B does not prohibit wholly independent advocacy.
See § 2339B(h) (“Individuals who act entirely independently of the foreign
terrorist organization to advance its goals or objectives” are not prosecutable).
Instead, the defendant must intend or conspire to “work under [the] terrorist
organization’s direction or control.” Id. Entirely independent actions that
violate other criminal laws can still be prosecuted under those laws, but not
under Section 2339B.
Further, the “knowing” mens rea requirement means that Ms. Borne
must have known that she was acting in coordination with the organization.
See § 2339B(a)(1) (“knowing” mens rea requirement). Prosecution thus bears
the burden of proving beyond a reasonable doubt that Ms. Borne intended or
conspired to work in coordination with Dixie Millions, and that Ms. Borne
was aware of such coordination. See Sullivan v. Louisiana, 508 U.S. 275,
47
277-78 (1993) (“prosecution bears the burden of proving all elements of the
offense charged . . . and must persuade the fact-finder ‘beyond a reasonable
doubt’”).
The Fourteenth Circuit identified two categories of evidence that
purportedly demonstrate the link between Ms. Borne and Dixie Millions, but
both categories fail to establish such a link. First, the Fourteenth Circuit
identified that Ms. Borne was planning to deliver various codes and formulas
to Dixie Millions. R. 22. But even viewing that evidence in the light most
favorable to the prosecution, it plainly does not speak to whether Ms. Borne’s
actions were coordinated by Dixie Millions. Humanitarian Law Project made
clear that Section 2339B requires an active role for the terrorist
organization—Dixie Millions must have coordinated or directed petitioner’s
actions. See 561 U.S. at 4. Ms. Borne’s subjective intentions and unilateral
actions are simply irrelevant to the “coordination” inquiry.
Second, the Fourteenth Circuit suggested that Mrs. Ascot was “likely
the hacktivist Dixie.” R. 22. But Mrs. Ascot’s membership status, standing
alone, is irrelevant to whether Ms. Borne’s actions were coordinated or
directed by Dixie Millions because Ms. Borne was unaware of the possible
connection between Mrs. Ascot and Dixie Millions. Even assuming that Mrs.
Ascot is “Dixie,” the record is clear that she did not disclose that fact to Ms.
Borne, and did not encourage Ms. Borne to meet with Dixie Millions or
provide any support to the group. R. 17. The mens rea requirement for
48
Section 2339B is “knowingly”; therefore even if Ms. Borne did perform certain
acts at the behest of Mrs. Ascot, she did not know she was doing so. See
§ 2339B(a)(1). Ms. Borne’s statement that it would be “pretty cool” if Mrs.
Ascot was “Dixie” is also irrelevant, because it neither speaks to whether
Dixie Millions actively coordinated or directed Ms. Borne’s independent
actions, nor whether Ms. Borne knew Mrs. Ascot could be “Dixie” at the time
she acted.
To get around this clear evidentiary deficiency, the Fourteenth Circuit
held that the jury could have presumed coordination because “hacktivists can
be anywhere and everywhere” and “Ms. Borne fits the exact profile of a
member of Dixie Millions.” R. 22. That presumption violates due process
because it flips the burden and forces the defendant to prove that she was not
acting in coordination with the terrorist group. Cf. Carella v. California, 491
U.S. 263, 265-66 (1989) (instruction that theft could be presumed from
defendant’s failure to return automobile within certain time period
unconstitutionally shifted burden of proof). The mere fact that Dixie Millions
encouraged hacking does not permit a presumption that all hackers
worldwide are working in coordination with Dixie Millions.
Holding
otherwise would violate due process and subject Ms. Borne to an
impermissible “guilty until proven innocent” standard.
The jury lacked sufficient evidence to find that Ms. Borne’s actions
were coordinated or directed by Dixie Millions.
49
The record is devoid of
sufficient evidence that Dixie Millions knew petitioner existed, let alone
specifically coordinated or directed her actions. Therefore, under both the “no
evidence” standard of Thompson and “lack of sufficient evidence” standard of
Jackson, the jury verdict must be overturned.
3.
The Jury Did Not Have Sufficient Evidence To Find
That Ms. Borne Intended To Provide Material
Support To Dixie Millions.
Nor did the jury have sufficient evidence to find that Ms. Borne
intended to provide material support to Dixie Millions.
In relevant part,
“material support” is defined to include: (1) property, tangible or intangible;
(2) a service; (3) expert advice or assistance; and (4) personnel, including
oneself. See § 2339A(b)(1). Unless there is sufficient evidence that Ms. Borne
attempted or conspired to provide Dixie Millions with any of those types of
material support, the conviction cannot stand.
First, there is insufficient evidence to suggest that Ms. Borne intended
to provide Dixie Millions with anything. Absent clear legislative intent to the
contrary, words used in statutes should be interpreted according to their
plain meaning. See Sandifer v. U.S. Steel Corp., 134 S.Ct. 870, 876 (2014).
As previously mentioned, Section 2339B requires that a defendant
“knowingly provide material support or resources” or attempt to do so.
§ 2339B(a)(1) (emphasis added). The plain meaning of the word “provide” is
“to supply what is needed for . . . support.” Webster’s Third International
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Dictionary 1827 (1971). Therefore, the evidence must support a finding that
Ms. Borne intended to actually supply or give something to Dixie Millions.
The record contains no such evidence. First, there is absolutely no
evidence that Ms. Borne intended to join Dixie Millions, thereby providing
service, expert advice, or personnel. As Judge Morgan noted in dissent, “At
best, the evidence supports the claim that [Ms. Borne] intended to meet with
Mr. Allen in order to learn more about the man himself.” R. 25. Even though
Ms. Borne expressed admiration for Dixie Millions, there is no evidence to
suggest that she intended or conspired to join the group.
Nor is there sufficient evidence for a jury to reasonably infer that Ms.
Borne would have joined Dixie Millions if she found Mr. Allen. Although
juries may draw inferences from evidence, their inferences must be
reasonable.
See, e.g., Schad v. Ryan, 671 F.3d 708 (9th Cir. 2011).
A
reasonable inference must be based on more than mere speculation or
conjecture. See United States v. Lewis, 787 F.2d 1318, 1323 (9th Cir. 1986);
see also United States v. Jones, 713 F.3d 336, 347 (7th Cir. 2013); United
States v. Moreland, 665 F.3d 137, 149 (5th Cir. 2011); United States v. Friske,
640 F.3d 1288, 1291 (11th Cir. 2011); United States v. Kim, 435 F.3d 182, 184
(2d Cir. 2006); United States v. Jones, 44 F.3d 860, 865 (10th Cir. 1995);
United States v. McNeill, 887 F.2d 448, 450 (3d Cir. 1989). Any inference
that Ms. Borne would have joined Dixie Millions if she found Mr. Allen is
based on pure conjecture and speculation. The facts suggest that Ms. Borne
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admired Dixie Millions and wanted to meet Mr. Allen, but there is no
reasonable basis to infer that she intended or conspired to join the
organization. If anything, the record supports an inference that Ms. Borne
fundamentally disagreed with the goals and methods of Dixie Millions. Ms.
Borne “urged [hacktivist groups] to focus on helping keep data safe and
suggested they only reveal ‘malicious corporate and government lies that
hurt people,’” a sentiment directly at odds with many of Dixie Millions’
activities. R. 17.
Similarly, there is no evidence to suggest that Ms. Borne intended to
provide Dixie Millions with any property. The Fourteenth Circuit identified
four pieces of “property” that Ms. Borne intended to provide: (1) the “perfect
cylinder” code; (2) the cylinder model; (3) the formula for advanced plastic
filament; and (4) plans for a 3D-printed gun. R. 22.
The Fourteenth Circuit failed to note, however, that Ms. Borne neither
knew of nor possessed either the plastic filament formula or the gun plans.
Pure factual findings are reviewed for clear error, see United States v.
McConney, 728 F.2d 1195, 1200 (9th Cir. 1984), and a finding is clearly
erroneous when the court is left with a “definite and firm conviction that a
mistake has been committed.” Pullman-Standard v. Swint, 456 U.S. 273,
284-85 n.14 (1982). In this case, there is uncontroverted evidence that Mr.
Triton and his daughter developed the plastic filament formula with no
assistance from Ms. Borne. R. 6-7, 10-11. Ms. Triton loaded the formula onto
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a cartoon robot USB, and it was discovered in her possession. R. 12. There is
no evidence that Ms. Borne even knew the formula existed, let alone that she
intended to give it to Dixie Millions. Similarly, Mr. Triton downloaded the
gun plans on his own, with no knowledge from Ms. Borne. R. 9. Mr. Triton
downloaded the plans to a gold USB, which was discovered in his possession.
R. 16. There is no evidence that Ms. Borne even knew of the gun plans, let
alone that she intended to give them to Dixie Millions.
Therefore, any
finding that Ms. Borne intended to provide either of those things to Dixie
Millions is clearly erroneous.
As to the curve code, the record establishes that Ms. Borne intended to
show Mr. Allen the code in order to impress him.
R. 12.
There is no
reasonable basis to infer that she intended or conspired to give that code or
the cylinder itself to Dixie Millions. Any inference that she would have given
Mr. Allen the code if he had requested it is based on pure speculation and
conjecture and cannot sustain conviction.
Because there is insufficient
evidence to prove that Ms. Borne intended or conspired to “provide” anything
that would qualify as “material support” to Dixie Millions, the jury’s verdict
must be overturned.
4.
The Jury Did Not Have Sufficient Evidence To Find
That Ms. Borne Knew Dixie Millions Qualified As A
Terrorist Organization.
Because the jury did not have sufficient evidence to find that Ms.
Borne knew Dixie Millions qualified as a terrorist organization, the
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conviction must be overturned. Section 2339B requires the defendant to have
actual knowledge that the relevant organization is: (1) a designated terrorist
organization; (2) engaged in “terrorist activity”; or (3) engaged in “terrorism.”
§ 2339B(a)(1). Here, the record is devoid of evidence that Ms. Borne had any
such knowledge.
The Secretary of State has discretion to designate a group as a
“terrorist organization” under Section 219 of the Immigration and
Nationality Act. See 8 U.S.C. § 1189. While it is uncontested that Dixie
Millions was designated a terrorist organization on December 30, 2011, there
is absolutely no evidence on the record that Ms. Borne knew of this highly
technical designation. Although Ms. Borne was familiar with Dixie Millions,
the record simply does not contain any evidence sufficient to prove the
requisite knowledge beyond a reasonable doubt.
As to the remaining two prongs, both “terrorist activity” and
“terrorism” are defined narrowly to include only the use of physical violence,
often for highly specific reasons. See 8 U.S.C. § 1182(a)(3)(B)(iii); Foreign
Relations Authorization Act, Fiscal Years 1988 and 1989, Pub. L. No. 100204, § 140(d)(2), 101 Stat. 1331 (1987). There is no evidence that Dixie
Millions has ever engaged in physical violence, and therefore no reason to
believe Dixie Millions qualifies under either of these remaining prongs. If
Dixie Millions does not qualify, Ms. Borne could not possibly have the
knowledge required by Section 2339B.
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Even if by some miracle of statutory interpretation Dixie Millions
qualifies as engaged in “terrorist activity” or “terrorism,” there is no evidence
to suggest that Ms. Borne knew the group engaged in those acts. Ms. Borne
was told and believed that the members of Dixie Millions were “White Hat
Hackers,” or good guys. In fact, the evidence shows that Ms. Borne abhorred
violence and even endeavored to convince hacktivist groups not to “exploit
bank, financial, and government security flaws.” R. 17-18. The fact that Ms.
Borne admired Mr. Allen and Dixie Millions suggests that she did not have
knowledge of any acts that might qualify as “terrorist activity” or “terrorism”
as required for a conviction under Section 2339B. There are simply no facts
tending to prove beyond a reasonable doubt that Ms. Borne had the requisite
knowledge, and therefore the jury’s verdict must be overturned.
CONCLUSION
For all the foregoing reasons, this Court should overturn the holding of
the Court of Appeals for the Fourteenth Circuit on both questions presented,
and remand this case to the United States District Court for the Central
District of New Tejas for a new trial.
Respectfully submitted,
/s/
November 23, 2015
Counsel for Petitioner
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