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 THE PETITIONER
TEAM 71
Counsel of Record
QUESTIONS PRESENTED
1. Destructive device. Emmaline Borne was en route to fulfilling her dream
of studying computer coding abroad when she was detained and later prosecuted for
possessing an explosive device under 26 U.S.C. § 5845(f)(3). The alleged parts of this
device were matches, hair spray, a plastic cylinder trophy, and USBs—all items of
innocent, if not common, commerce. Can Miss Borne be charged under this statute
where she never designed or intended to convert such parts into a destructive
device?
2. Material support. This Court said in Holder v. Humanitarian Law
Project that 18 U.S.C. § 2339B “is carefully drawn to cover only a narrow category of
speech to, under the direction of, or in coordination with” a designated foreign
terrorist organization. Miss Borne independently planned to meet an individual of
an FTO and prove her skills by showing computer code. Can Miss Borne be
prosecuted under this statute?
(I)
II
TABLE OF CONTENTS
Questions Presented ....................................................................................................... I
Table of Contents .......................................................................................................... II
Table of Cited Authorities ........................................................................................... IV
Opinions Below .............................................................................................................. 1
Jurisdiction .................................................................................................................... 1
Constitutional Provisions and Statutes Involved......................................................... 1
Statement of the Case ................................................................................................... 2
Summary of the Argument ............................................................................................ 8
Argument ..................................................................................................................... 12
I.
An individual cannot be convicted under § 5845(f)(3) under
any standard of interpretation for the possession of innocent items
of commerce without any verifiable intention to use such items for a
proscribed purpose. ................................................................................................ 12
A.
Under an objective standard, Miss Borne did not possess
items that were designed for use in converting any device into a
destructive device. ............................................................................................. 14
1. The hairspray, matches, plastic cylinder trophy, and
miscellaneous items recovered from Miss Borne were not
designed for use in converting parts into a destructive device. ................. 17
2. The USBs containing 3D gun plans was not designed for
use in converting parts into a destructive device. ...................................... 19
B.
None of the items in Miss Borne’s possession were
intended for use in converting a device into a destructive device................... 21
1. Under a subjective standard, Miss Borne’s conviction is
improper. ...................................................................................................... 21
i. The hairspray, matches, plastic cylinder trophy, and
miscellaneous items were not intended for use in
converting a device into a destructive device. ....................................... 24
III
ii. The 3D gun plans contained on the USBs were not
intended for use in converting a device into a destructive
device. ..................................................................................................... 26
2. Under a mixed standard, Miss Borne’s conviction is
improper. ...................................................................................................... 27
i. With imagination, the miscellaneous items possessed
by Miss Borne could have a proscribed purpose; however,
she did not intend to use those items to convert a device
into a destructive device......................................................................... 29
ii. The 3D gun plans contained on the USBs may have
clear uses for good or bad, but they were not intended by
Miss Borne for use in converting a device into a
destructive device. .................................................................................. 31
C.
If the Court concludes that the items in Miss Borne’s
possession were an explosive device, they were nonetheless
neither designed nor redesigned for use as a weapon. .................................... 32
II.
Miss Borne cannot be prosecuted under 18 U.S.C. § 2339B for
independently making plans to meet a member of a known foreign
terrorist organization in order to discuss computer code. .................................... 34
A.
As a textual matter, the Fourteenth Circuit erred when it
held that Miss Borne provided or attempted to provide material
support or resources to a foreign terrorist organization (FTO). ..................... 35
1. Miss Borne did not provide “material support or
resources” to Dixie Millions when she gave the computer code
to Ascot because she did not know that Ascot was part of an
FTO. ............................................................................................................. 36
2. Miss Borne was not attempting to provide material
support or resources to Dixie Millions because she did not
coordinate her activities with the organization. ......................................... 37
B.
The material support statute is vague as applied to Miss
Borne. ................................................................................................................ 41
C.
The prosecution of Miss Borne for planning to show and
demonstrate computer code to Allen violates her right to
freedom of expression........................................................................................ 44
Conclusion .................................................................................................................... 48
IV
Appendix ...................................................................................................................... 1a
TABLE OF CITED AUTHORITIES
Cases:
Bernstein v. United States Dept. of Justice, 176 F.3d 1132 (9th
Cir. 1999) ................................................................................................ 45
Burson v. Freeman, 504 U.S. 191 (1992) .......................................................... 46
Connally v. Gen. Constr. Co., 269 U.S. 385 (1926) .......................................... 41
Grayned v. City of Rockford, 408 U.S. 104 (1972) ..................................... 41, 43
Holder v. Humanitarian Law Project ........................................................passim
Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp., 515 U.S. 557
(1995) ................................................................................................ 44, 46
Johnson v. United States, 135 S. Ct. 2551 (2015) ............................................ 16
Junger v. Daley, 209 F.3d 481 (6th Cir. 2000) ................................................. 45
Kolender v. Lawson, 461 U.S. 352 (1983) ......................................................... 41
Miller v. California, 413 U.S. 15 (1973) ........................................................... 44
Negonsott v. Samuels, 507 U.S. 99 (1993) .................................................. 21, 25
Reiter v. Sonotone Corp., 442 U.S. 330 (1979) ................................................. 12
Rewis v. United States, 401 U.S. 808 (1971) .................................................... 14
Staples v. United States, 511 U.S. 600 (1994) ............................................ 14, 19
Texas v. Johnson, 491 U.S. 397 (2010) ............................................................. 46
United States v. Curtis, 520 F.2d 1300 (1st Cir. 1975) .................................... 15
United States v. Fredman, 833 F.2d 837 (9th Cir. 1987)........................... 15, 17
United States v. Hammond, 371 F.3d 776 (11th Cir. 2004) .......... 14, 15, 18, 34
V
United States v. Hamrick, 43 F.3d 877 (4th Cir. 1995) ............................. 23, 28
United States v. Hedgcorth, 873 F.2d 1307 (9th Cir. 1989) ....................... 17, 20
United States v. Johnson, 152 F.3d 618 (7th Cir. 1998) ...........................passim
United States v. La Cock, 366 F.3d 883 (10th Cir. 2004) ................................ 32
United States v. Malone, 546 F.2d 1182 (5th Cir. 1977)...................... 14, 17, 31
United States v. Oba, 448 F.2d 892 (9th Cir. 1971) ..................................passim
United States v. One 1972 Chevrolet, 369 F. Supp. 755 (D. Neb.
1973).................................................................................................. 32, 33
United States v. Posnjak, 457 F.2d 1110 (2d Cir. 1972) ...........................passim
United States v. Reed, 726 F.2d 570 (9th Cir. 1984).................................. 32, 33
United States v. Rushcamp, 526 F.2d 1380 (6th Cir. 1975) .......... 27, 28, 30, 31
United States v. Schofer, 310 F. Supp. 1292 (E.D.N.Y. 1969) ....... 16, 17, 18, 22
United States v. Spoerke, 568 F.3d 1236 (11th Cir. 2009) ............. 13, 23, 25, 33
United States v. Thompson/Center Arms Co., 504 U.S. 505
(1992) ................................................................................................ 31, 32
United States v. Urban, 140 F.3d 229 (3d Cir. 1998) .......................... 14, 17, 20
United States v. Uzenski, 434 F.3d 690 (4th Cir. 2006)............................. 15, 18
United States v. Worstine, 808 F. Supp. 663 (N.D. Ind. 1992) .................. 29, 31
Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir.
2001).................................................................................................. 45, 46
Constitution, statutes, and model codes:
18 U.S.C. § 842(p)(2) ................................................................................... 20, 21
18 U.S.C. § 2339A(b)(1) ..................................................................................... 39
18 U.S.C. § 2339B ......................................................................................passim
VI
18 U.S.C. § 2339B(a)(1) ............................................................................... 34, 36
18 U.S.C. § 2339B(h) ................................................................................... 37, 38
26 U.S.C. § 5845(f)(1) .................................................................................passim
26 U.S.C. § 5845(f)(2) .................................................................................passim
26 U.S.C. § 5845(f)(3) .................................................................................passim
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. 104-132, 110 Stat. 1214 (Apr. 24, 1996) ...... 39, 42, 47
Intelligence Reform and Terrorism Prevention Act of 2004
(IRTPA), Pub. L. 108-458, 118 Stat. 3638 (Dec. 17, 2004) .................... 39
Statutory Time-Periods Technical Amendments Act of 2009,
Pub. L. 111-16, 123 Stat. 1607 (May 7, 2009) ....................................... 39
United and Strengthening America by Fulfilling Rights and
Ensuring Effective Discipline Over Monitoring Act of 2015
(USA FREEDOM Act), Pub. L. 114-23, 129 Stat. 268
(June 2, 2015) ......................................................................................... 39
United and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of
2001 (USA PATRIOT Act), Pub. L. 107-56, 115 Stat. 272
(Oct. 26, 2001) ......................................................................................... 39
Model Penal Code § 2.02(2)(b)(i) ....................................................................... 36
Miscellaneous:
Br. for Academic Researchers & Citizen Media Law Project as
Amici Curiae in Support of Resp./Cross-Pet’rs, Holder v.
Humanitarian Law Project (Nov. 23, 2009) .......................................... 42
Charles Doyle, Cong. Research Serv., RS21616, Bomb-Making
Online: An Abridged Sketch of Federal Criminal Law
(2003) ...................................................................................................... 21
Coding at HISD / #HISDecoded, Houston Independent School
District, http://www.houstonisd.org/Page/124414 (last
visited Nov. 22, 2015). ............................................................................ 45
VII
Elizabeth Royte, What Lies Ahead for 3-D Printing?,
Smithsonian Mag., May 2013,
http://www.smithsonianmag.com/science-nature/whatlies-ahead-for-3-d-printing-37498558 .................................................... 29
Kenneth Katzman, Cong. Res. Serv., RL33038, Al Qaeda: Profile
and Threat Assessment (2005) ............................................................... 40
Kristin Archick, et al., Cong. Res. Serv., R44003, European
Fighters in Syria and Iraq: Assessments, Responses, and
Issues for the United States (2015) ........................................................ 40
Scott Atran & Robert Axelrod, Why We Talk to Terrorists, N.Y.
Times (June 29, 2010),
http://www.nytimes.com/2010/06/30/opinion/30atran.html.................. 43
Webster’s Third New International Dictionary (1993) ..................................... 43
In the Supreme Court of the United States
No. C15-1359-1
EMMALINE BORNE, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTEENTH CIRCUIT
BRIEF FOR THE PETITIONER
OPINIONS BELOW
The opinion of the United States Court of Appeals for the Fourteenth Circuit
is unpublished and appears in the record at 2.
JURISDICTION
The judgment of the court of appeals was entered on October 1, 2015. The
jurisdiction of this Court rests on 28 U.S.C. § 1254(1).
CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED
The relevant statutory provisions are reprinted in an appendix to this brief.
App., infra, 1a–2a.
(1)
2
STATEMENT OF THE CASE
Anything that can go wrong, will go wrong. That is the adage commonly
known as Murphy’s Law. On the morning of June 4, 2012, what could go wrong, did
go wrong.
When Emmaline Borne was arrested, she was a seventeen-year-old high
school senior who was also an avid video game player. R. ¶¶ 2, 4. She lived with her
parents. R. ¶ 31. She went to her senior prom. R. ¶ 18. She wanted to go to New
Tejas State University, major in computer science, and “become a force for good in
the universe.” R. ¶¶ 4, 27. She eventually wanted to create her own computer game.
R. ¶ 4. She had enrolled in an advanced study abroad program called Technical
Promise that would give her a six-credit head start to her upcoming college career.
R. ¶¶ 2, 9.
The Arrest
Miss Borne was arrested along with her best friend, Fiona Triton, and
Fiona’s father, Hershel Triton. R. ¶¶ 37, 41. Mr. Triton was driving the two girls to
the airport. R. ¶ 33. En route, he was pulled over for a traffic violation where it was
discovered that he had a warrant out for his arrest for mishandling a separate
ticket. R. ¶¶ 35–36. While the schoolgirls waited for Mrs. Triton to pick them up
and drive them to the airport, they were arrested because a police officer saw
through the car window a calendar alert on Miss Borne’s cell phone screen which
contained the name of a known fugitive hacker—Clive Allen. R. ¶¶ 39–41. Miss
Borne was charged with violating 18 U.S.C. § 2339B for attempting to provide
material support to a foreign terrorist organization (FTO). R. ¶¶ 44, 51. Only
3
seventeen years-old, she was convicted and sentenced to fifteen years in prison. R. ¶
51. She has never met Allen. Miss Borne was further charged under a statute that
relies on the definition of an explosive device designed under 26 U.S.C. § 5845(f)(3).
R. ¶¶ 44, 51. For this, she was convicted and sentenced to another year in prison. R.
¶ 51. The alleged components of this explosive device were matches, hairspray, a
plastic cylinder, and three USB drives with varying contents, among other
unspecified miscellaneous items. R. ¶ 50.
Clive Allen: Retired Hacktivist
Clive Allen, a former National Security Agency (“NSA”) consultant, released
millions of NSA documents to the Darknet in November 2011. R. ¶¶ 10, 11. Allen
revealed that he was part of a “hacktivist” group known as Dixie Millions. R. ¶¶ 10–
11. United States law enforcement agencies searched nationwide for Allen after the
document dump but were unsuccessful. R. ¶ 11. The Secretary of State declared
Allen a criminal and Dixie Millions an FTO. R. ¶ 11. From December 2011 to March
2012, numerous websites were hacked and forced to display a message that
purported to be from Dixie Millions. R. ¶ 11. In March 2012, Allen released a video
stating he had retired and planned to live out the remainder of his days in Azran. R.
¶ 12. The Azran government publicly granted asylum to Allen. R. ¶ 12.
Borne, Triton, and Technical Promise
In February 2012, Miss Borne and Miss Triton were accepted into a precollege study abroad program named “Technical Promise.” R. ¶ 9. Both girls were
students at Harrisburg High School in New Tejas. R. ¶ 2. Technical Promise is an
4
initiative between New Tejas State University and the University of Misthallery in
Azran designed to encourage students to major in science, technology, engineering,
or mathematics (STEM). R. ¶¶ 2, 4. Miss Borne was interested in computer
programming; Miss Triton was interested in chemistry and wanted to be a chemical
engineer, like her father. R. ¶¶ 2, 5. Both Miss Borne and Miss Triton were
encouraged to apply by their physics teacher, Adalida Ascot. R. ¶ 2. Ascot was one of
the original students selected to participate in Technical Promise in 2001. R. ¶¶ 2–
3. She told the girls that, in order “to excel in Azran,” they should bring projects
they were currently working on for their Technical Promise professors to review. R.
¶ 22.
The Triton 3D Printer
In April 2012, Hershel Triton bought a 3D printer so he could experiment
with making objects out of plastic filaments. R. ¶ 14. Miss Borne saw the 3D printer
during a sleepover at the Tritons one evening. R. ¶ 15. Mr. Triton and Miss Borne
began talking about the printer, and Mr. Triton explained that he was having
software issues. R. ¶ 15. Miss Borne offered to help try to fix the issues in exchange
for her printing a figurine of an online gaming character. R. ¶ 15. Miss Borne
recognized an error in the printer code that would cause the 3D printer to print an
imperfect curve. R. ¶ 16. She attempted to fix the code, but became stuck. R. ¶ 16.
She asked Ascot for advice on how to fix the code for perfect curves during their
next scheduled meeting. R. ¶ 17. Ascot took Miss Borne’s code home with her, fixed
it, and returned the code to Borne. R. ¶ 17–19. It was at this meeting where Miss
5
Borne heard Ascot proclaim that Clive Allen was an admirable person, and that
Ascot hoped that one day “people would realize all the good Dixie Millions was doing
in the world.” R. ¶ 17.
The Trophy
In early May, Miss Borne visited Mr. Triton. R. ¶ 23. They designed a 6½inch tall, ½-inch diameter perfect plastic cylinder to “demonstrate how well the
software functioned.” Id. Miss Borne asked to keep the finished cylinder as a
“trophy” because she liked the way the cylinder looked attached to a raft—the base
layer of material for the printing process. R. ¶ 24. Mr. Triton agreed, and printed
another cylinder for himself. Id.
Mr. Triton’s Manufacturing Plans
While researching 3D printing, Mr. Triton came across plans on the internet
to design a 3D printed handgun. R. ¶ 21. Although Mr. Triton never communicated
anything to Miss Borne, he realized he would have an extremely valuable product if
he could develop a plastic that could withstand the heat generated by the discharge
of multiple bullets. Id. He downloaded the plans for a 3D-printed handgun and
saved them on a gold USB. Id. The Tritons worked on the new formula for a
stronger plastic filament throughout May 2012. R. ¶ 25. Miss Triton, against her
father’s wishes, downloaded the plastic filament formula and planned to bring it to
Azran because of Ascot’s recommendation to bring ongoing projects to professors. R.
¶ 26. Miss Triton downloaded the plastic filament formula onto a USB that was
shaped like a cartoon robot. Id.
6
Clive Allen Gains a Follower
After her conversations with Ascot about Dixie Millions, Miss Borne began to
visit Darknet sites to search for information on Allen. R. ¶ 27. While Allen himself
kept a low profile, certain websites tracked his alleged whereabouts because he had
become an internet folk hero. R. ¶¶ 27–28. Miss Borne figured out that Allen
followed a specific and nuanced schedule where he occasionally appeared at a café
at the University of Misthallery. R. ¶ 28. She hoped to find Allen, meet him, and get
his advice on her career path. R. ¶ 27. She set a calendar event in her smartphone
for June 5, 2012, and labeled the entry, “Meet Clive Allen at Cafe.” R. ¶ 28.
Miss Borne Prepares for Technical Promise
The day before the flight, Miss Borne began packing for her trip to Azran. R.
¶ 29. She packed the spreadsheet of where she thought Allen would be, her purplecolored USB with the modified curve code, and her 3D printed cylinder—proof that
her code worked—in the hopes that Allen would be so impressed by her “hacker
credentials” that he would agree to mentor her. Id. She also packed clothes and
toiletries, including hairspray, and put all the items in a duffle bag that her family
normally used for camping. R. ¶¶ 29–30. The camping bag contained a pack of
matches that her family stored for emergencies. R. ¶ 30. Miss Borne planned to
check the duffle bag at the airport. R. ¶ 30.
Murphy’s Law Strikes
Due to a Borne family emergency, Mr. Triton drove both girls to the airport
on June 4, 2012. R. ¶¶ 31, 33. Mr. Triton plugged his going-away present for the
7
girls into the radio—a gold USB that he had filled with music. R. ¶ 34. Murphy’s
Law struck; nobody made it to the airport; everyone in the car went to jail. R. ¶ 42.
The U.S. Attorney filed charges against Mr. Triton, Miss Triton, and Miss Borne. R.
¶ 44. Both Mr. and Miss Triton agreed to cooperate with law enforcement and
agreed to plea bargains in exchange for their full cooperation with all investigations
involving Dixie Millions or its members. R. ¶ 45. Miss Borne asserted her innocence,
and proceeded to trial. R. ¶ 46.
The Trial of Emmaline Borne
The trial record reflected that the FBI was almost certain that Ascot was the
other hacker in Dixie Millions. R. ¶ 48. Ascot fled her home upon learning of the
girls’ arrest. R. ¶ 44. Miss Borne testified that it would be “pretty cool” if Ascot was
in Dixie Millions because that meant she “would have been mentored by one of the
world’s ‘elite White Hat Hackers.’” R. ¶ 48. Miss Borne also testified that at no point
did Ascot reveal she was in Dixie Millions or directly encourage her to meet with
Allen. Id.
During cross-examination, FBI agents testified that Miss Borne wanted to
meet with multiple hacker groups to “convince[e] these groups not to ‘exploit bank,
financial, and government security flaws’ . . . and suggest[] they only reveal
‘malicious corporate and government lies that hurt people.’” R. ¶ 47.
One of Miss Borne’s tweets from her Twitter account was submitted into
evidence that stated: “With one wish, I wish all guns would blow up.#guncontrol.” R.
8
¶ 49. Miss Borne tweeted that in response to the tragic gun-related death of a
classmate. Id.
An FBI Ballistics expert testified that Mr. Triton’s plastic filaments formula
combined with his gun plans would create a device that appeared to fire a bullet. R.
¶ 50. Subsequent testing on models of the resulting device showed that the device
would actually always blow up when fired—causing significant injury. Id. The
expert also testified that the hairspray, matches, 3D-printed cylinder, and other
miscellaneous items could be used to make a bomb. Id.
Miss Borne was convicted and sentenced to sixteen years in prison. R. ¶ 51.
The United States Court of Appeals for the Fourteenth Circuit upheld the
conviction in a split decision. R. ¶¶ 59, 68.
SUMMARY OF THE ARGUMENT
I. 26 U.S.C. § 5845(f)(3) was passed as part of the Gun Control Act of 1968 in
order to address systemic gun violence. Whether that Congress could have imagined
that this statute would justify the conviction of a teenage girl for the possession of a
plastic cylinder, her coding “trophy,” matches, hairspray, and a data drive, is
farcical. But what is not amusing is the resulting wrongful conviction of Miss Borne.
Courts have applied three different standards to interpret § 5845(f)(3). First,
an objective standard looks exclusively at the design of an alleged device. Second, a
subjective standard looks to both the nature of the device and the intentions of the
possessor. Third, a mixed standard, which the Fourteenth Circuit adopted but
misapplied, considers whether a device has both productive and proscribed usages,
and, if so, what the actual intent of the owner was in possessing such a device. But
9
even if a court finds that a device is destructive, if a defendant did not design or
redesign the device for use as a weapon, it cannot properly fall under the definition.
The items possessed by Miss Borne were not designed or intended for use in
converting a device into a destructive device. Most of the parts were ordinary
household items. And the plastic cylinder, while perhaps unfamiliar to most people,
was normal in Miss Borne’s data-driven life: she is passionate about coding and this
trophy is a symbol of her skills. Further, these parts did not exhibit any signs of
conversion into an explosive device, and Miss Borne has belabored the fact that she
never contemplated converting such items into an explosive device.
What is fortuity for the prosecution in her possession of this medley of items
has become a Kafkaesque nightmare for Miss Borne. It is not that component parts
of a gun produced by a 3D printer could never support a conviction under
§ 5845(f)(3). In this case, however, it is clear that Miss Borne neither designed nor
intended these parts to constitute an explosive device or to be used as a weapon in
any way. The three standards of interpretation all support the same conclusion:
that Miss Borne’s conviction under § 5845(f)(3) was incorrect, and that the
Fourteenth Circuit must be reversed.
II. 18 U.S.C. § 2339B prohibits individuals from knowingly providing or
attempting to provide “material support or resources to a foreign terrorist
organization.” Miss Borne’s conviction should be vacated for three reasons. First,
she did not provide “material support or resources” to Dixie Millions within the
meaning of the statute. Prosecution under § 2339B for her relationship with Ascot is
10
precluded by the requirement that a person must have “knowledge that the
organization is a designated terrorist organization,” which Miss Borne clearly did
not. Moreover, prosecution for her plans to meet with Allen is also not supported by
this Court’s interpretation of § 2339B. In Holder v. Humanitarian Law Project, this
Court held that “material support or resources” only encompassed that which was
provided in coordination with or under the direction of the terrorist organization.
The record shows that Miss Borne made her plans entirely on her own, without any
coordination with or under the direction of Allen. The Fourteenth Circuit’s attempt
to engraft an exception to the coordination requirement because of “the unique
niche” that hackers occupy is not supported by this Court’s reasoning, the
legislative history of the material support statute, or logic.
Second, the material support statute is vague as applied to Miss Borne
because neither she nor any reasonable person could have known that her attempt
to talk with Allen would be a prosecutable offense under § 2339B. This Court
recognized in HLP that Congress limited “material support or resources” to
activities coordinated with or under the direction of terrorist organizations.
Although that may have clarified the material support statute for some, it did not
for individuals like Miss Borne who engage in experiment and research. The pursuit
of knowledge requires interaction with all manner of individuals—for some, even
with terrorists. At the same time, the dictionary definitions of statutory terms like
advice, assistance, and training all require an act of conveyance from the provider.
It is unclear, however, with scientists and researchers who, while interacting and
11
coordinating with their subjects, are actually conveying anything to their subjects.
So it was with Miss Borne, who sought out Allen not to provide him with anything,
but rather, to gain his approval and mentorship. That Miss Borne was prosecuted
shows the dangers of unbridled enforcement power when there is a vacuum of
clarity.
Third, showing and demonstrating computer code is speech protected by the
First Amendment. The government has failed to show that the prosecution of Miss
Borne is necessary in the fight against terrorism. This Court in HLP applied strict
scrutiny to hold that the plaintiffs’ activities were precluded by the material support
statute because Congress found that it was necessary in the fight against terrorism.
While Congress sought to provide robust tools to prosecutors in the fight against
terrorism, it was also mindful of First Amendment interests and determined that it
was unnecessary to convict individuals who did not coordinate their activities with
terrorist groups. The prosecution now seeks to use that definition of material
support that Congress declared unnecessary. It has prosecuted a teenage girl for
activities that were not coordinated with any terrorist organization. As such, the
government cannot meet the demands of strict scrutiny and prosecution of Miss
Borne violates the First Amendment.
12
ARGUMENT
I.
AN INDIVIDUAL CANNOT BE CONVICTED UNDER § 5845(F)(3) UNDER ANY
STANDARD OF INTERPRETATION FOR THE POSSESSION OF INNOCENT ITEMS OF
COMMERCE WITHOUT ANY VERIFIABLE INTENTION TO USE SUCH ITEMS FOR A
PROSCRIBED PURPOSE.
Under 26 U.S.C. § 5845(f)(3), an individual may be convicted for possessing
“any combination of parts either designed or intended for use in converting any
device into a destructive device . . . and from which a destructive device may be
readily assembled.” 26 U.S.C. § 5845(f)(3) (2012) (emphasis added). A destructive
device that may otherwise qualify under the definition “shall not include any device
which is neither designed nor redesigned for use as a weapon.” Id.
Based on the construction of the statute, any combination of parts may be
converted into a destructive device for purposes of § 5845(f)(3) through either the
possessor’s design or intent. United States v. Oba, 448 F.2d 892, 894 (9th Cir. 1971).
“Design” and “intent” cannot bear the same meaning given the use of the disjunctive
“or” in the statute. Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979) (“Canons of
construction ordinarily suggest that terms connected by a disjunctive be given
separate meanings.”). In the context of the statute, “designed” has been interpreted
to mean the “objective, physical structure or method of operation,” which is separate
and distinct from the “intent or schemes of the possessor.” United States v. Posnjak,
457 F.2d 1110, 1116 (2d Cir. 1972).
The circuits are split regarding the correct standard for conviction under
§ 5845(f)(3). The three available standards include an objective, subjective, or mixed
standard. See United States v. Johnson, 152 F.3d 618, 625–26 (7th Cir. 1998). An
13
objective standard prohibits any inquiry into the possessor’s intent with an alleged
destructive device and, accordingly, is more properly considered as part of
evaluating design in the statute. Posnjak, 457 F.2d at 1116. Contrarily, the
subjective standard focuses on the admitted intention of the possessor along with
the nature of the device. Oba, 448 F.2d at 894. Finally, a mixed standard evaluates
whether items under subpart (3) can serve either a destructive or a salutary
purpose—that the court look to the possessor’s intent. Johnson, 152 F.3d at 624–27.
The standard of review is de novo because the lower court’s decision to utilize a
mixed standard for § 5845(f)(3) is a ruling of law. See United States v. Spoerke, 568
F.3d 1236, 1244 (11th Cir. 2009).
The Fourteenth Circuit analyzed two distinct possibilities to support
conviction of Miss Borne under § 5845(f)(3). R. ¶ 56–58. First, that the possession of
matches, hairspray, a plastic cylinder, and other miscellaneous items could be tools
to readily create a “primitive pipe bomb.” R. ¶ 58. Second, that the 3D gun plans
contained on the USBs as a “completed bomb designed to cause death or serious
bodily harm.” R. ¶ 58. The court’s affirmation of Miss Borne’s conviction under
§ 5845(f)(3) was incorrect for two reasons. First, those items in her possession—the
matches, hairspray, plastic cylinder, miscellaneous items, and USB port—were
neither designed nor intended for use in converting a device into a destructive
device. Second, even accepting the conclusion that Miss Borne possessed a
destructive device, she neither designed nor redesigned the alleged destructive
device for use as a weapon. Accordingly, a conviction under § 5845(f)(3) is improper.
14
A.
Under an objective standard, Miss Borne did not possess items
that were designed for use in converting any device into a
destructive device.
Where the prosecution demonstrates that a defendant possessed either a
fully assembled explosive device, or components designed to create a device that
squarely falls under § 5845(f)(1) or (2), inquiry into the defendant’s intention is
unnecessary. See Urban, 140 F.3d at 233. Any other interpretation expands the
scope of the statute to include weapons not contemplated by Congress in § 5845(f)(1)
and (2), and courts must construe criminal statutes narrowly. Rewis v. United
States, 401 U.S. 808, 812 (1971) (reasoning that criminal statutes which are
ambiguous should be interpreted narrowly and in “favor of lenity”); see also Staples
v. United States, 511 U.S. 600, 605 (1994) (requiring “mens rea for a crime is firmly
embedded” in our nation’s jurisprudence).
All component parts must be present in order to satisfy that the destructive
device “may be readily assembled” as required by the text of § 5845(f)(3). See United
States v. Malone, 546 F.2d 1182, 1183–84 (5th Cir. 1977) (concluding that although
a hand grenade in a spring-top box had no innocent usage, it was not a destructive
device because the defendant did not possess explosive material to readily assemble
the device). The materials of these parts of a device can illuminate whether the
device is designed for use in conversion into a destructive device. See United States
v. Hammond, 371 F.3d 776, 777–80 (11th Cir. 2004) (rejecting the prosecution’s
allegations that a reinforced tube of cardboard, filled with explosive powder and
attached to a fuse, was a destructive device where it was materially different than
an explosive device “made of metal, steel or cast iron pipe” and where it contained
15
no shrapnel). If the contents of a device contain metallic pieces to produce shrapnel
when ruptured, this configuration can support classification as a destructive device.
Id. at 780–81; see also United States v. Uzenski, 434 F.3d 690, 702 (4th Cir. 2006)
(reasoning that a device was a destructive device because it “constituted a pipe
bomb that could detonate and expel shrapnel-like fragments”).
An objective standard of interpretation beneficially limits judicial inquiry
into the objective design of the allegedly destructive device. See Posnjak, 457 F.2d at
1118. In Posnjak, the Second Circuit evaluated whether the sale of thousands of
sticks of dynamite, along with unattached fuses and caps, was chargeable as a
“destructive device” within the meaning of § 5845(f)(3). Id. at 1111. Despite the
admitted intent of one of the defendants “to resell the dynamite to a Cuban
revolutionary group for use in the destruction of buildings and life,” the component
parts did not qualify as a “destructive device.” Id. at 1112. Although the dynamite
could supply the explosive material in a device that could qualify elsewhere in §
5845(f), this was in and of itself insufficient to bring the device within the
definition. Id. at 1117. The objective interpretation avoids the pitfalls of permitting
any object or combination of objects which may be used “in a destructive fashion” to
fall within § 5845(f)(3), and effectively “engrafting a new group of weapons” in the
statute. Id. at 1117–18; see also United States v. Fredman, 833 F.2d 837, 839–40
(9th Cir. 1987) (concluding that dissembled component parts of a commercial
explosive were not a destructive device); United States v. Curtis, 520 F.2d 1300,
16
1302–03 (1st Cir. 1975) (reasoning that “garden-variety dynamite charge is not
itself subject to regulation under the National Firearms Act”).
An objective standard is consonant with the purposes animating the passage
of the National Firearms Act and the Gun Control Act. Posnjak, 457 F.2d at 1115
(noting that Congress intended “to halt the growing number of crimes in which guns
were used to inflict or threaten bodily harm”). The well-documented legislative
history supports that §5845(f)(3)’s inclusion of “destructive devices” was “not to
broaden it in the direction of including firearms which are characteristically owned
by law-abiding citizens.” United States v. Schofer, 310 F. Supp. 1292, 1294
(E.D.N.Y. 1969). This Court has recently acknowledged that the NFA was passed
“on the understanding that ‘while there is justification for permitting the citizen to
keep a pistol . . . for his own protection,” there are other types of weapons, such as
sawed-off shotguns, which can never have legitimate purposes. Johnson v. United
States, 135 S. Ct. 2551, 2583 (2015). The Posnjak court further clarified that the
introduction of “destructive devices” into § 5845(f)(3) was intended to capture
weaponry such as “military-type weapons-mines, grenades, bombs, and large-caliber
weapons, such as bazookas, mortars, and anti-tank guns.” 457 F.2d at 1115. The
objective standard honors the structure of § 5845(f) as a whole: (1) and (2) include
clearly delineated categories of weapons, while (3) captures devices which may be
improvised to create a device falling in either category. See id. Courts have
understood that the “statute is aimed at the kind of evil articles it describes, and
17
not at evil perversions of the use of articles of innocent commerce without alteration
of their nature or made [sic] of operation.” Schofer, 310 F. Supp. at 1297–98.
Plans are different in kind than the “evil articles” described in § 5845(f). See
id. Even in those situations where plans or manuals for creating explosives are
recovered as part of the evidence against a defendant, these items are not
considered destructive devices to support a conviction; rather, these items provide
context to the court’s analysis of the component parts under § 5845(f)(3). See Urban,
140 F.3d at 234 (concluding where a defendant had pamphlets on converting carbon
dioxide cartridges into fragmenting grenades, and where the confiscated grenades
had been altered accordingly, the grenades could not bear any innocent usages);
United States v. Hedgcorth, 873 F.2d 1307, 1312 (9th Cir. 1989) (affirming a jury’s
conclusion that napalm firebombs were destructive devices given their design
without considering whether the instructions for creating such bombs were
themselves a destructive device).
1.
The hairspray, matches, plastic cylinder trophy, and
miscellaneous items recovered from Miss Borne were not
designed for use in converting parts into a destructive device.
Unlike the hand grenade contained in the spring-top box in Malone, which
had no innocent use but was nonetheless not a destructive device under the statute,
here the items possessed by Miss Borne all have legitimate, innocent usages. 546
F.2d at 1183–84; R. ¶ 57. Miss Borne’s innocent items of commerce were not
assembled into an explosive device. See Fredman, 833 F.2d at 839–40 (concluding
that the unassembled components of commercial dynamite were not a destructive
device). Conversely, where a device is fully assembled—with indicia of design for
18
use as a destructive device such as a sealed, galvanized pipe containing shrapnel—a
court may conclude that § 5845(f)(3) is met. See Uzenski, 434 F.3d at 704. But here,
the record never indicates that Miss Borne possessed any item resembling shrapnel.
R. ¶ 50. The plastic material of the cylinder trophy is also counter to the idea that
the item itself was designed for use as an explosive device, like the reinforced
cardboard tube in Hammond. 371 F.3d at 780–81. Unlike metal or iron pipe, plastic
is pliable like cardboard and potential for harm is less grave. See id.
Although the government argued that the cylinder, matches, and hairspray
were “tools needed to make a primitive pipe bomb,” in looking to the objective
design and purpose of these various items, we can conclude that they do not fall
under subsection (1) or (2) of § 5845. R. ¶ 58. As the court in Posnjak pointed out,
“destructive devices” were intended to cover “military-type weapons.” 457 F.2d at
1115. There was nothing inherently dangerous or unlawful about the possession of
these household items. These items do not resemble the “evil articles” described in
§ 5845(f) such as grenades, missiles, and mines. See Schofer, 310 F. Supp. at 1297–
98. Here, unlike the result in Posnjak—where defendants could not be charged
under § 5845(f)(3) despite their malicious intention to sell the dynamite to destroy
people and property—Miss Borne has no such ill intent. 457 F.2d at 1111.
Further, matches, hairspray, and this plastic cylinder are all items of
“innocent commerce” and Miss Borne in no way altered these items to suggest that
she designed a destructive device. Schofer, 310 F. Supp. at 1298. While 3D printing
remains novel in our society, the technology is legal and has commercial and
19
industrial purposes that are innocent. And keeping in mind Staples and its mens
rea requirement, it cannot be argued that the possession of a cylinder printed from
a 3D printer would alert Miss Borne to the possibility of its regulation under federal
law. 511 U.S. at 605. The cylinder is a trophy to Miss Borne; its function and design
was proof her code worked. R. ¶¶ 24, 29. A combination of a 3D printed trophy,
some matches, hairspray, and other miscellaneous items is not a military-type
weapon. Miss Borne did not bring these items with her for use as a destructive
device.
2.
The USBs containing 3D gun plans was not designed for use in
converting parts into a destructive device.
The Fourteenth Circuit mistakenly held that the 3D gun plans contained on
the USBs were a “completed bomb.” R. ¶ 58. This is a wholly novel interpretation of
the statute and it is inconsistent with the motivations behind the statute’s passage.
See Posnjak, 457 F.2d at 1115. To characterize the 3D gun plans as a “completed
bomb” under § 5845(f)(3) would untenably broaden the statute. Accordingly, Miss
Borne’s prosecution under § 5845(f)(3) for the 3D gun plans cannot properly rest.
See Posnjak, 457 F.2d at 1112 (reasoning that conviction was improper under
§ 5845(f)(3) because possession of dynamite was not prohibited under either the
National Firearms Act or the Gun Control Act, especially where “[t]he subject has
been covered by subsequent legislation specifically directed to the question”).
The legal conclusion that the 3D gun plans were a “completed bomb” under
§ 5845(f)(3) and (1), is one this Court must reject. R. ¶ 58. The Fourteenth Circuit
notes that the “fact that the plans are just ‘ones and zeros’ is immaterial” because of
20
the risk of mass production. Id. “Readily assembled” under the definition of
§ 5845(f)(3) cannot invite this meaning. The court in Urban upheld the conviction of
defendant for possession of an assembled grenade, without addressing whether the
pamphlet relied upon to construct the grenade was itself a completed “grenade” or
destructive device given its proscription. 140 F.3d at 234. Unlike in Urban, though,
Miss Borne does not possess plans for a gun and a resulting gun; she merely
possesses a plastic cylinder—which can only arguably be a component. See id.; R.
¶ 58. The idea of mass production based on plans is present in both circumstances,
but the Third Circuit correctly applied a narrow reading of the statute to preclude
consideration of the instructions themselves as a separate device. See id. Similarly,
the court in Hedgcorth did not characterize a manual titled “Unconventional
Warfare Devices and Techniques-Incendiaries,” as a “destructive device” despite the
fact that possession of military-like weapons is explicitly part of what Congress
sought to prevent. 873 F.2d at 1310. The fact that plans are merely “ones and zeros”
cannot be immaterial to the analysis; such a reading of the statute would overly
broaden the scope of this definition section. R. ¶ 58.
Further, Congress has addressed this specific problem of instructions and
plans for creating destructive devices in violation of federal laws in a different
statute, 18 U.S.C. § 842(p)(2), which makes it unlawful “to distribute by any means
information pertaining to . . . the manufacture or use of a[] . . . destructive device.”
But Miss Borne was not charged under § 842(p)(2). Section 5845(f)(3) has
consistently been applied to actual devices, not plans or instructions in the abstract.
21
Thus the conclusion that the 3D gun plans were a “completed bomb” is legally
incorrect. R. ¶ 58. Concluding otherwise would encroach upon § 842(p)(2). See
Charles Doyle, Cong. Research Serv., RS21616, Bomb-Making Online: An Abridged
Sketch of Federal Criminal Law (2003). The court recognizes that technology affects
how readily assembled devices may be, and that “the law must keep pace with these
realities.” R. ¶ 58. But creating new law by expanding statutes is not the role of the
court; courts must interpret statutes to give effect to the intent of Congress. See
Negonsott v. Samuels, 507 U.S. 99, 104 (1993).
B.
None of the items in Miss Borne’s possession were intended for
use in converting a device into a destructive device.
When analyzing a defendant’s intentions under § 5845(f)(3), a court has two
options: applying a subjective or mixed standard. See Oba, 448 F.2d at 894;
Johnson, 152 F.3d at 624–25. A subjective standard focuses on both the intention of
the possessor and the design of the device, whereas the mixed standard asks first,
as a threshold matter, whether the device has both “a destructive or a salutary
purpose,” and second, what was the defendant’s intention with that device. See
Johnson, 152 F.3d at 627. In application, the two standards may have distinctions
without meaningful legal differences. See id.
1.
Under a subjective standard, Miss Borne’s conviction is
improper.
The Fourteenth Circuit misunderstands the subjective standard as applied to
§ 5845(f)(3). Any concerns with the “ambiguities of a purely subjective standard” are
unwarranted because a subjective standard also considers the objective design of a
device. R. ¶ 56. Accordingly, there is no such thing as a “purely subjective standard”
22
like the Fourteenth Circuit’s majority claims. R. ¶ 56 (emphasis added). A properly
applied subjective standard considers both the design of a device and the subjective
intentions of the possessor of that device. Oba, 448 F. 2d at 894. Adopting a
subjective standard would enable prosecutors to charge individuals where they have
admitted a malicious purpose, satisfying a mens rea requirement, but where a
device does not fall under subsection (1) or (2) of § 5845(f). See id.
In Oba, the appellant designed a device consisting of several sticks of
dynamite wrapped in copper wire and attached to a dynamite fuse and caps. Id. at
893. The appellant argued that this device was “intrinsically[] not a weapon” and
that it may only come within the definition of “‘destructive device’ if that is the
ultimate subjective intent of the possessor.” Id. That is a correct reading of the
subjective standard, however the appellant in Oba explicitly stated his intent to
dynamite Eugene, Oregon. Id. at 895. Given the design of the device, sticks of
dynamite converted into a bomb-like device, and especially given defendant’s
admitted purpose, the court found it “absurd to even question its inclusion within
the definition.” Compare id. at 894 with Schofer, 310 F. Supp. at 1297 (reasoning
that commercial materials not converted for use as a destructive device did not
qualify under § 5845(f)(3)). The potential “limitations of an objective standard”
noted by the lower court are obviated by using the subjective standard. R. ¶ 19. For
example, under an objective standard, a court could hold that the appellant’s device
did not fall into the definition given its commercial dynamite properties,
notwithstanding the purposes of the appellant to dynamite a city. Oba, 448 F.2d at
23
893. Contra Posnjak, 457 F.2d at 1111 (concluding that despite the defendant’s
intentions to dynamite a city, it could not be construed as a destructive device).
Contrary to the lower court’s characterization of the subjective standard as
“too simplistic to cover the threat of dangerous firearms after recent terror attacks,”
the standard actually provides a mechanism for courts to permit prosecution under
§ 5845(f)(3) even if a device does not fall under § 5845(f)(1) or (2). R. ¶ 55. The
objective standard does not provide such a mechanism because the analysis is
limited to design alone. As demonstrated by Oba, a subjective standard may reach
the possession of devices by individuals that Congress did not intend to criminalize
through the passage of these acts aimed at controlling systemic gun violence, among
other things. 448 F.2d at 893; see Posnjak, 457 F.2d at 1115. The dissent of Oba is
particularly concerned with the practical effect of crediting a defendant’s intention
in such a way that it permits the expansion of the coverage of § 5845(f) “in an
absurd and wholly unintended manner.” 448 F.2d at 901; see also United States v.
Hamrick, 43 F.3d 877, 894 (4th Cir. 1995) (Ervin, C.J., dissenting) (reasoning that a
dysfunctional letter bomb amounted to nothing more than as a “hodgepodge of
materials” which could not “honestly be called a bomb”).
But under a subjective standard, courts need not accept a defendant’s
intention at face value without considering whether that intent is plausible. See
Spoerke, 568 F.3d at 1248 (upholding the jury’s discrediting of a defendant’s
explanation that he created pipe bomb-like devices to explode them underwater “for
fun” where the evidence flatly contradicted his intent because the devices did not
24
sink in water). However, a subjective standard would avoid prosecuting individuals
for the possession of devices which technically qualify as a destructive device under
§ 5845(f)(3), but where defendants had no intention of using the devices for
nefarious purposes.
i.
The hairspray, matches, plastic cylinder trophy, and
miscellaneous items were not intended for use in
converting a device into a destructive device.
The benefits of using a subjective standard are highlighted by considering the
impropriety of Miss Borne’s conviction through the Fourteenth Circuit’s
misapplication of the mixed standard. R. ¶ 56–57. Clearly, based on the statutory
language alone, Congress never intended to bring devices into the ambit of the
statute unless there was a clear design or an intention to use that device for
destructive purposes. 26 U.S.C. § 5845(f)(3). While an objective standard never
permits the inclusion of destructive devices where the objective design of the device
does not fit into the definition under subsections (1) or (2), the subjective standard
will permit the inclusion if the government proves an intention on behalf of the
defendant to use the device as a weapon. See Posnjak, 457 F.2d at 1117–18; Oba,
448 F.2d at 895. Thus, the subjective standard is sufficiently protective of both the
safety of the public and of innocent persons charged under § 5845(f)(3).
However, the subjective standard may be unwise not for the reasons cited by
the lower court, namely its “ambiguities,” R. ¶ 56, but because it may bring items
into the statute where Congress never envisioned or intended their inclusion. See
Oba, 448 F.2d at 901 (Browning, J., dissenting). The purposes animating the
passage of these laws in 1968 focused on the regulation of guns given the
25
substantial violence imperiling society at that time. Posnjak, 457 F.2d at 1115.
Although the lower court acknowledges threats of homegrown terrorism, attempting
to fit those devices into § 5845(f) is dissonant with the purposes animating the
statute. It is an inappropriate usage of § 5845(f)(3) to criminalize the possession of
innocent items of commerce without establishing a defendant’s intention to use
those items as a weapon. Judge Morgan, in dissent, highlights this injustice by
noting that the majority is comfortable “severely punish[ing]” Borne “for what she
might do.” R. ¶ 70 (emphasis in original).
Selective ignorance of Miss Borne’s admitted purpose in this case—“to get the
approval of her ‘role model’”—invites judicial discretion where it has no place. See
Negonsott, 507 U.S. at 104. The court acknowledges that “[w]hile this may be true”
regarding her purpose, they think her intention was supplying a weapon to an FTO.
R. ¶ 57. While there is a risk that defendants may invent reasons for possessing
parts of an explosive device, it is an entirely different risk to permit the court to
fabricate the intention of the defendant. See Spoerke, 568 F.3d at 1248. Here,
relying on a court-invented subjective intent that Miss Borne was interested in
exploding guns based on a mischaracterized tweet, and disregarding her verifiable
intentions to use her coding formula in connection with her studies at Technical
Promise, is a far greater risk than the one imagined by the Posnjak court. 457 F.2d
at 1117–18; R. ¶¶ 49, 57.
26
ii.
The 3D gun plans contained on the USBs were not
intended for use in converting a device into a destructive
device.
Under a subjective approach, the 3D gun plans contained on the USBs do not
qualify as a destructive device for purposes of § 5845(f)(3). Miss Borne has
belabored her interest in coding as an educational interest and hobby, and the
contents of her USB, a curve formula, cannot qualify as a destructive device under a
subjective intent standard. See Oba, 448 F.2d at 894; R. ¶¶ 8, 16–17, 22, 24, 29.
Mr. Triton’s USB contained the gun plans and may have been contemplated
for a manufacturing purpose; however, that is his intent and it should not transfer
to Miss Borne. R. ¶ 9. Looking to a different person’s intent, either Mr. Triton’s or
Dixie Millions’, categorized as “impure by default,” to supply the requisite intent
under this standard is unprecedented. R. ¶ 57. It complicates the analysis by
consideration of the intent not of the transferor, but of the alleged transferee of the
“device.” Throughout the breadth of case law, despite different applications of
standards, what is always true is that the court is looking at the possessor’s
intention, not a third party’s intention. See, e.g., Posnjak, 457 F.2d at 1111.
A subjective standard inures to the benefit of prosecutors and innocent
persons. See Oba, 448 F.2d at 895. In Oba, the subjective intent of the defendant
permitted the prosecution to secure a guilty plea under § 5845(f)(3), although it
would have been otherwise unavailable given that the objective design of the
commercial dynamite would not fit into § 5845(f)(1) or (2). Id. Here, Miss Borne was
instructed that “to excel in Azran” she should bring projects she was working on. R.
¶ 22. Unlike the appellant in Oba, Miss Borne has never conceded that her
27
possession of the alleged destructive device—hairspray, matches, and a plastic
cylinder—was for use as a weapon. 448 F.2d at 895. In fact, Miss Borne has
maintained that she was seeking education and mentorship through her study at
Technical Promise, an intent which is corroborated by the record. R. ¶ 57.
Accordingly, there is no reason to question the integrity of her intention and to
supplant it with the Fourteenth Circuit’s fantasy. Some of the concerns of the
Posnjak court regarding the effect of a subjective standard are clearly demonstrated
here. See 457 F.2d at 1117–18. An allegedly destructive device is being corralled
into § 5845(f)(3) by relying on intent. See id. But under an appropriately applied
subjective standard, Miss Borne was not properly convicted under § 5845(f)(3).
2.
Under a mixed standard, Miss Borne’s conviction is improper.
The Fourteenth Circuit adopted and applied the mixed standard of
interpretation for § 5845(f)(3). See United States v. Rushcamp, 526 F.2d 1380 (6th
Cir. 1975); R. ¶ 19. A mixed standard approach to interpretation is substantially
similar to a properly articulated subjective standard of interpretation. Courts that
use a mixed standard approach recognize that whether a device is “destructive”
hinges upon evaluating the usages of each of the component parts. United States v.
Johnson, 152 F.3d 618, 624 (7th Cir. 1998). And where a defendant is in possession
of component parts “that are susceptible to both violent abuse and beneficent use,
the analysis is necessarily more nuanced and may require consideration of intent.”
Id. Once the threshold of establishing a device has both malignant and benign
usages, the court must look to the intention of the possessor. Id.
28
Accordingly, devices without any legitimate uses cannot meet the threshold
inquiry under a mixed standard. Id. In Rushcamp, a defendant argued that his
possession of an unregistered rocket launcher did not qualify as a “destructive
device.” 526 F.2d at 1381. The defendant argued that the launcher was merely a
metal pipe given the lack of any actual rocket to launch. Id. But the district court
judge noted, correctly, that “[t]he device in issue is much more than a mere pipe . . .
[i]t is exactly the ‘military-type’ weapon that the statutes speak of.” Id. at 1382.
Further, recognizing the potential over breadth of the decision, the court quoted the
district court qualifying that not just “[a]ny tube of proper dimensions is . . . covered
by the statutes in question, but certain tubes are, and the device in issue is one such
tube.” Id. Accordingly, the device qualified under § 5845(f)(2) without consideration
of the intention of the possessor. Id.
Under a mixed standard of interpretation, defendants will not be able to
evade criminal liability because a device is inoperable. See Hamrick, 43 F.3d at 881
(whether a destructive device is functional or not does not bear on the analysis). In
Johnson, a defendant and store employee planted two inoperable pipe bomb devices
in the store, equipped with shrapnel. The defendant’s stated “motivation for
planting these devices was . . . to play the hero in discovering the bomb-like
devices.” 152 F.3d at 621. As a first step, the court addressed the objective design of
the devices in question, concluding that they contained all properties of a
destructive device including shrapnel, and could not be used for any purpose other
than as a weapon. Id. Accordingly, no further inquiry into the subjective intention of
29
the defendant was required by the district court. Compare id. at 627–28 with United
States v. Worstine, 808 F. Supp. 663, 668–70 (N.D. Ind. 1992) (concluding that a one
inch diameter galvanized metal device was a destructive device, but that a half-inch
diameter “brittle plastic” PVC tube, black gun powder, and a fuse was not where the
defendants explained that the purpose was to create homemade firecrackers).
i.
With imagination, the miscellaneous items possessed by
Miss Borne could have a proscribed purpose; however, she
did not intend to use those items to convert a device into a
destructive device.
A correct application of the mixed standard of interpretation does not lead to
the inequitable result of upholding Miss Borne’s conviction. 26 U.S.C. § 5845(f)(3);
R. ¶ 59. Looking first at the inconclusive objective design of the alleged destructive
device, and secondly to Miss Borne’s admitted intentions with those component
parts, we can comfortably conclude that the device does not qualify under
§ 5845(f)(3). See Johnson, 152 F.3d at 624. Hairspray and matches are clearly
“susceptible to . . . beneficent use,” through their everyday uses. Id. Even accepting
that they may be used for any “violent abuse” is a stretch. Id. Possession of a plastic
cylinder, one-half inch in diameter, is a closer question with respect to evaluating
its proscribed purpose against a salutary purpose. See id.; R. ¶ 23. Admittedly, 3D
printing technologies are emerging and affecting different streams of commerce. 1
However, given the description of the cylinder as a “trophy” by its possessor, and
There may be great potential in 3D printing, but “[a]s ever, tools can be used for good as easily as
for ill. It will be up to the myriad government agencies to address the wide spectrum of legal and
criminal concerns.” Elizabeth Royte, What Lies Ahead for 3-D Printing?, Smithsonian Mag., May
2013, http://www.smithsonianmag.com/science-nature/what-lies-ahead-for-3-d-printing-37498558
1
(emphasis added).
30
the potential for 3D printing to “advance[] . . . societal knowledge,” salutary
purposes are definitively present. R. ¶¶ 24, 56. Accordingly, correctly applying the
mixed standard is the most consistent and fair interpretation of the statute both on
these facts and in order to give effect to the intent of Congress. See Johnson, 152
F.3d at 624.
Miss Borne’s possession of these household items and plastic cylinder is
materially different from the worries of courts in individuals obtaining military-type
weapons. See Rushcamp, 526 F.2d at 1382. The rocket launcher in Rushcamp was
clearly included in § 5845(f)(2). Id. Critically that court recognized that mere
possession of a metal tube does not itself support inclusion of that tube under
§ 5845(f). Id. Miss Borne’s possession of a plastic cylinder with “proper dimensions”
to fit into the statute, e.g., a one-half inch diameter, is precisely the type of situation
where courts must look beyond design to the context of the possession. See id. The
context provides ample support that Miss Borne’s intention with these items was to
enrich her study abroad experience. R. ¶ 22.
Further corroborating Miss Borne’s intention is the fact that any alleged
destructive device was dissembled. See Johnson, 152 F.3d at 621. The court in
Johnson was focused on the fully assembled device, and the presence of shrapnel, to
conclude that looking at the objective design alone was sufficient to find that the
devices were destructive under § 5845(f)(1). Id. Conversely, Miss Borne’s
possessions to not prescribe a similar conclusion given that they were never
contemplated for assembly. R. ¶ 50. Further, cases supporting conviction under this
31
statute make clear efforts to specifically identify the component parts of any
destructive devices. See, e.g., Malone, 546 F.2d at 1183. Miss Borne’s possession of a
half-inch plastic cylinder is most similar to the defendant’s possession of “small
diameter brittle plastic PVC tubing” in Worstine. 808 F. Supp. at 666. Given the
composition of the plastic cylinder and accepting Miss Borne’s corroborated
intention, conviction cannot stand under § 5845(f)(3).
ii.
The 3D gun plans contained on the USBs may have clear
uses for good or bad, but they were not intended by Miss
Borne for use in converting a device into a destructive
device.
The 3D gun plans on the USB can serve destructive or salutary purposes—
production of guns or societal advancement—and therefore inquiry into the intent of
the possessor is required. See Johnson, 152 F.3d at 624. For many of the same
reasons stated in Part I.B, supra, Miss Borne’s intentions for use in coding and
excelling at Technical Promise confirm that she never intended to use the curve
code for nefarious purposes. R. ¶ 29. Although Mr. Triton had intended to use the
gun plans for potential manufacture and profit, there are no facts in the record
supporting the fact that Miss Borne was aware of his intention. R. ¶ 14. Again, Miss
Borne’s possession of these USBs and their contents is materially different from the
worries of Congress, and of courts, for the wrong people to obtain military-type
weapons. See Rushcamp, 526 F.2d at 1382. Those concerns are unfounded with
respect to Miss Borne’s possession of a curve code. As this Court has noted in United
States v. Thompson/Center Arms Co., § 5845(f)(3) “appears to envision by its terms
only combinations of parts for converting something into a destructive device.”
32
504 U.S. 505, 514 n.7 (1992) (emphasis added). USBs containing gun plans, curve
codes, or filament codes, are not a combination of parts under the definition. Thus,
under the proper application and understanding of the mixed standard, Miss
Borne’s conviction is improper.
C.
If the Court concludes that the items in Miss Borne’s
possession were an explosive device, they were nonetheless
neither designed nor redesigned for use as a weapon.
Courts have largely understood that “not designed or redesigned for use a
weapon” is an affirmative defense built within the statute. See, e.g., United States v.
La Cock, 366 F.3d 883, 889 (10th Cir. 2004). Miss Borne has clearly established that
the combination of parts in her possession were not designed or redesigned for use
as a weapon, and therefore the conviction under § 5845(f)(3) is erroneous. R. ¶ 29–
30.
If the design of the device is for any other purpose than for usage as a
weapon, that device cannot qualify under § 5845(f)(3). United States v. One 1972
Chevrolet, 369 F. Supp. 755, 756 (D. Neb. 1973) (concluding that hand grenade fuze
assemblies were not destructive devices because they are designed for military
training). Additionally, while the infirmities of a device may not affect a court’s
finding that a device was a destructive device, it can supply evidence that the device
was not designed for use as a weapon. See United States v. Reed, 726 F.2d 570, 576
(9th Cir. 1984) (concluding that paper-wrapped, gasoline filled beverage cans were
not designed as weapons where “it would have been difficult and dangerous for a
person to . . . successfully . . . throw the can[s] without serious harm to himself”).
33
Miss Borne did not design or redesign any of these items for use as a weapon.
Miss Borne was enrolled in a prestigious program which was “designed to promote
science, technology, engineering, and mathematics.” R. ¶ 2. She is “deeply
interested in learning computer programming because of her love of playing
computer games.” R. ¶ 4. While developing the curve code, Miss Borne became
interested in “demonstrat[ing] how well the software functioned.” R. ¶ 23. The
record overwhelmingly supports an understanding that Miss Borne did not design
or redesign any of these items for use as a weapon. If any reason other than use as a
weapon motivates the design of a device, it cannot fall under § 5845(f)(3) per the
statutory construction of the definition. See One 1972 Chevrolet, 369 F. Supp. at
756. Even accepting that the plans on the Tritons’ USBs would create a faulty
device that would blow up, this infirmity further supports an understanding that
the intended design or redesign was not for use as a weapon. See Reed, 726 F.2d at
576. Adopting a similar analysis to the court in Reed, this Court can look at this
defectiveness of the alleged, speculative device as proof positive that the possessor
did not intend for using it as a weapon. See id. Courts and juries may be skeptical in
accepting a defendant’s purpose when they possess a destructive device, especially
where the evidence flatly contradicts that purpose. See Spoerke, 568 F.3d at 1248.
But that is simply not the situation with Miss Borne. Her purpose for possessing
these items is corroborated by her enrollment in Technical Promise and her
interests. R. ¶ 4, 23–24, 56.
34
Whether a device is designed or redesigned for use as a weapon functions to
protect innocent persons like Miss Borne from prosecution under § 5845(f)(3).
Calling anything that has explosive potential an explosive device without analyzing
the design or redesign of that device for use as a weapon is an incomplete
application of § 5845(f)(3). See Hammond, 371 F.3d at 780 (“a device that explodes
is not covered by the statute merely because it explodes”). Thus, Miss Borne’s
conviction under § 5845(f)(3) was improper and the judgment of the Fourteenth
Circuit should be reversed, and the case remanded to the district court for further
proceedings.
II.
MISS BORNE CANNOT BE PROSECUTED UNDER 18 U.S.C. § 2339B FOR
INDEPENDENTLY MAKING PLANS TO MEET A MEMBER OF A KNOWN FOREIGN
TERRORIST ORGANIZATION IN ORDER TO DISCUSS COMPUTER CODE.
The material support statute prohibits individuals from knowingly providing
or attempting to provide “material support or resources to a foreign terrorist
organization.” 18 U.S.C. § 2339B(a)(1) (2012). Miss Borne’s conviction under
§ 2339B should be vacated for three reasons. First, as a textual matter, her
activities do not fall within the plain meaning of § 2339B. Second, even if one could
argue that some of Miss Borne’s activities might fall within the meaning of the
statute, the statute as applied to Miss Borne is unconstitutionally vague. Finally,
even if the statute is not vague and if Miss Borne’s actions actually fall within the
meaning of the statute, it violates Miss Borne’s right to freedom of expression under
the First Amendment.
35
Before entering into the statutory and constitutional analysis, it is important
to clarify exactly what Miss Borne attempted to do. The record indicates that Miss
Borne had three purposes. First, there was the attempt to receive career advice—
she wanted to “find Clive Allen, meet him, and get his advice on her career path.” R.
¶ 27. Second, there was the attempt to receive mentorship by impressing her idol—
she wanted to get Allen to agree to mentor her by impressing him with her hacker
credentials. She planned to do this by showing him her “purple-colored thumb drive
with her modified curve code” along with “proof her code worked—the cylinder she
had printed at the Triton’s house”—and “the spreadsheet of Mr. Allen’s daily
locations.” R. ¶ 29 Third, there was the attempt to persuade against harmful
activity—she wanted to meet with other hackers to “convinc[e] these groups not to
‘exploit bank, financial, and government security flaws’ . . . and suggest[] they only
reveal ‘malicious corporate and government lies that hurt people.’” R. ¶ 47.
Essentially, Miss Borne’s plan was to receive career advice and mentorship,
and to persuade others to halt their harmful activities. For attempting to do these
three things, she was convicted under § 2339B and sentenced to fifteen years in
prison. The text of the statute does not support such a result and the Constitution
does not allow it.
A.
As a textual matter, the Fourteenth Circuit erred when it held
that Miss Borne provided or attempted to provide material
support or resources to a foreign terrorist organization (FTO).
Even without tackling the constitutional issues, the text of § 2339B does not
support Miss Borne’s conviction. The record indicates two potential instances in
36
which Miss Borne could have provided or attempted to provide material support or
resources to Dixie Millions: her relationship with Ascot, and her attempt to meet
Allen and to show him computer code. Neither of these instances fall within the
ambit of § 2339B, both by the plain language of the statute and as interpreted by
this Court in Holder v. Humanitarian Law Project. 561 U.S. 1 (2010).
1.
Miss Borne did not provide “material support or resources” to
Dixie Millions when she gave the computer code to Ascot because
she did not know that Ascot was part of an FTO.
Assuming arguendo that Ascot is Dixie, any material support Miss Borne
may have provided to Ascot is beyond the reach of § 2339B because Miss Borne did
not know that Ascot was Dixie. A crucial element of culpability under § 2339B is
that “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.”
18 U.S.C. § 2339B(a)(1). “A person acts knowingly with respect to a material
element of an offense when . . . if the element involves the nature of his conduct or
the attendant circumstances, he is aware that his conduct is of that nature or that
such circumstances exist.” Model Penal Code § 2.02(2)(b)(i).
Nothing in the record supports the proposition that Miss Borne in fact was
aware that Ascot was Dixie. “[A]t no point did Mrs. Ascot reveal to her that she was
Dixie or directly encourage her to meet Mr. Allen.” R. ¶ 48. At worst, Miss Borne
testified that “it would be ‘pretty cool’ if Mrs. Ascot was Dixie because that meant
she would have been mentored by one of the world’s ‘elite White Hat Hackers.’” R.
37
¶ 48. Such a statement may evince a childish negligence or perhaps recklessness,
but Congress did not intend for the fanciful ruminations of a seventeen-year-old girl
to be the basis for a fifteen-year sentence. HLP, 561 U.S. at 16–17 (“Congress
plainly spoke to the necessary mental state for a violation of § 2339B, and it chose
knowledge about the organization’s connection to terrorism.”).
2.
Miss Borne was not attempting to provide material support or
resources to Dixie Millions because she did not coordinate her
activities with the organization.
In HLP, this Court held that § 2339B “reaches only material support
coordinated with or under the direction of a designated foreign terrorist
organization.” 561 U.S. at 31 (emphasis added). In that case, the HLP, a high profile
human rights organization, brought an as applied preenforcement challenge of
§ 2339B because the HLP planned: to train designated FTOs on how to use
humanitarian and international law to resolve disputes peacefully; to teach
members of FTOs how to petition the United Nations for relief; and to engage in
independent political advocacy on behalf of designated FTOs. Id. at 9–11. The HLP
argued that § 2339B’s prohibition on providing “services,” including “personnel,”
made it unconstitutionally vague as to the extent to which it could advocate for
those FTOs. Id. at 23.
The Court rejected this argument. Id. at 23–24. The statute’s sub-section
regarding the “provision of personnel” states that
[n]o person may be prosecuted under this section in connection with the
term ‘personnel’ unless that person has knowingly provided, attempted
to provide, or conspired to provide a foreign terrorist organization with
1 or more individuals . . . to work under that terrorist organization’s
38
direction or control . . . . Individuals who act entirely independently of
the foreign terrorist organization to advance its goals or objectives shall
not be considered to be working under the foreign terrorist organization’s
direction and control.
18 U.S.C. § 2339B(h) (emphasis added). From this, the Court noted that the
dictionary definition of “service” similarly refers “to concerted activity, not
independent advocacy.” HLP, 561 U.S. at 23–24. As such, the Court held that the
HLP could engage in independent advocacy for the FTOs.
In this case, nothing in the record indicates that Miss Borne performed any of
her activities “in coordination with, or at the direction of” Clive Allen. Id. at 24. In
fact, he was something of a mysterious folk hero on the internet. R. ¶ 27. Miss
Borne was not even positive she was going to meet Allen. She claimed to recognize a
pattern from his alleged sightings that would put him in a specific cafe. R. ¶ 29. She
was planning to stake out that cafe in the opes of spotting him and introducing
herself. Id. There is absolutely nothing in the record to infer that Allen coordinated
or directed Miss Borne’s activities in any way.
The Fourteenth Circuit erroneously rejected this argument by attempting to
engraft into the statute a separate standard for hackers that engage in terrorist
activities. R. ¶ 63. It justified this standard not by pointing to the intent of Congress
or existing legal doctrine, but rather by noting what it considered were the unique
characteristics of hackers. Id. However, the Fourteenth Circuit’s novel standard is
not supported by the text or history of the statute, this Court’s reasoning in HLP, or
logic.
39
The statute defines material support or resources as “any property, tangible
or intangible, or service.” 18 U.S.C. § 2339A(b)(1) (emphasis added). The explicit
clarification of tangible and intangible property indicates that Congress
contemplated the terroristic activities in the cyber realm. Moreover, the material
support statute, first enacted in 1996, has been amended at least four times over
the last nineteen years. See Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. 104-132, 110 Stat. 1214 (Apr. 24, 1996); United and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. L. 107-56, 115 Stat. 272
(Oct. 26, 2001); Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA),
Pub. L. 108-458, 118 Stat. 3638 (Dec. 17, 2004); Statutory Time-Periods Technical
Amendments Act of 2009, Pub. L. 111-16, 123 Stat. 1607 (May 7, 2009); United and
Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over
Monitoring Act of 2015 (USA FREEDOM Act), Pub. L. 114-23, 129 Stat. 268 (June
2, 2015). These years coincide directly with the growth of the internet and the
information revolution, along with the increasing prominence in the mainstream
media of cyber armies like Anonymous. Yet Congress has never seized the
opportunity to clarify that the level of coordination among hackers sufficient for
culpability under § 2339B could be lower than that of other terrorists.
Indeed, this Court in HLP relies on this limiting principle to uphold the
material support statute on several occasions. The Court observed that Congress
was “conscious of its own responsibility to consider how its actions may implicate
40
constitutional concerns . . . . [M]ost importantly, Congress has avoided any
restriction on independent advocacy, or indeed any activities not directed to,
coordinated with, or controlled by foreign terrorist groups.” 561 U.S. at 35–36.
Finally, the supposed unique characteristics noted by the Fourteenth Circuit
do not distinguish hackers from “traditional terrorist groups” in the mode of
coordination and communication. R. ¶ 63. The court below states that hackers could
be “anywhere and everywhere” as opposed to “traditional terrorist groups,” which
are “limited to specific geo-political locations and issues.” Id. It notes that hackers
“thrive on their anonymity and revel in their lack of formal structures . . . to
encourage others to follow in their footsteps by creating havoc and chaos across the
globe through the internet.” Id.
These descriptions of cyberterrorist groups bear striking resemblance to
descriptions of today’s terrorist threats that Congress specifically sought to curb
through the material support statute. See, e.g., Kenneth Katzman, Cong. Res. Serv.,
RL33038, Al Qaeda: Profile and Threat Assessment, at 2 (2005) (“Al Qaeda serves
more as an inspiration than as an actual terrorism planning and execution hub . . .
[and it] has been replaced by a threat from a number of loosely affiliated cells and
groups that subscribe to Al Qaeda’s ideology but have little, if any, contact with
remaining Al Qaeda leaders”); Kristin Archick, et al., Cong. Res. Serv., R44003,
European Fighters in Syria and Iraq: Assessments, Responses, and Issues for the
United States, at 1–2 (2015) (noting the Islamic State’s use of the internet and
clandestine propaganda videos to recruit new members is a battle waged both on
41
land and online). What the Fourteenth Circuit describes is the state of all terrorism
in the twenty-first century. Thus, Judge Morgan was correct in his dissent when he
observed that “[j]ust because a hacker group suggests that [it is] adding members or
encourages online attacks does not automatically make the actions of one hacker
coordinated with the actions of another hacker.” R. ¶ 74.
B.
The material support statute is vague as applied to Miss Borne.
Miss Borne was convicted under § 2339B for seeking to receive career advice
and mentorship from Allen, and to persuade others to halt their harmful activities.
As to these three purposes, the material support statute is vague because neither
Miss Borne nor any reasonable person could have known whether one could be
prosecuted for these activities under § 2339B, thereby granting too much
enforcement power to prosecutors. See Kolender v. Lawson, 461 U.S. 352, 357
(1983).
Miss Borne, or any reasonable person, could not have known that her
attempt to talk with Allen would be a violation of § 2339B. A criminal statute must
define itself “with sufficient definiteness that ordinary people can understand what
conduct is prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement”; otherwise, it is a violation of a person’s right to due
process under the Fifth Amendment. Id.; see also Connally v. Gen. Constr. Co.,
269 U.S. 385, 391 (1926). A statute that does not clearly define prohibited conduct
“may trap the innocent by not providing fair warning.” Grayned v. City of Rockford,
408 U.S. 104, 108 (1972). Because of the ambiguity of several words in the material
42
support statute, Miss Borne has been—and many other inquisitive children like her
will be—trapped within the clutches of this law originally meant to counter “serious
and deadly” problems like “hostage taking, murder of an internationally protected
person, and aircraft piracy and sabotage.” AEDPA § 301(a)(1), (5) (Findings and
Purpose).
It is first important to note that this Court’s vagueness analysis in HLP was
confined to the specific proposed activities of the plaintiffs. The Court held that “[a]
person of ordinary intelligence would understand that instruction on resolving
disputes through international law falls within the statute’s definition of ‘training’
because it imparts a ‘specific skill,’ not ‘general knowledge.’” HLP, 561 U.S. at 22.
The challengers and amici presented hypotheticals demonstrating how problematic
it was for a prospective speaker to know whether such words would constitute
training or expert advice or assistance. See id. (questioning whether teaching a
course in geography would constitute training); Br. for Academic Researchers &
Citizen Media Law Project as Amici Curiae in Support of Resp./Cross-Pet’rs, at 21–
22, Holder v. Humanitarian Law Project (Nov. 23, 2009) (asking whether a
journalist’s act of showing up at a place and time decided by a terrorist group for an
interview is sufficient coordination with a terrorist to bring the journalist within the
definition of “service”). The Court responded that such hypotheticals were beside
the point in HLP because that was an as-applied challenge to those plaintiffs’
specific proposed activities. HLP, 561 U.S. at 22.
43
In the wake of HLP, however, the confusion has only intensified. For
example, some social scientists have begun to wonder whether their interaction
with terrorist organizations to aid their research might sweep them into the
statute’s vague vortex. See, e.g., Scott Atran & Robert Axelrod, Why We Talk to
Terrorists, N.Y. Times (June 29, 2010),
http://www.nytimes.com/2010/06/30/opinion/30atran.html. Such concerns have
manifested into the prosecution of Miss Borne. There is great uncertainty about the
meaning of words like training, advice, and assistance as it pertains to the study
and discussion of topics upon which FTOs and their members may be able to shed
light. The statute has allowed prosecutors to usurp the prerogative to resolve “basic
policy matters . . . on an ad hoc and subjective basis, with the attendant dangers of
arbitrary and discriminatory application.” Grayned, 408 U.S. 108–09.
Webster’s Third New International Dictionary (1993) defines “advice” as a
“recommendation regarding a decision or course of conduct,” or “information or
notice given.” It defines “assistance” as the act of assisting and “assist” as “to give
usually supplementary support or aid to.” Finally, it defines “training” as “a process
by which someone is taught the skills that are needed for an art, profession, or job.”
Each of these definitions indicate that these statutory terms are ones of active
contribution as opposed to passive receipt. Miss Borne was seeking to receive
something from Clive Allen: his approval and mentorship. The record does not
indicate that Miss Borne’s purpose in meeting Clive Allen was to contribute
anything to Dixie Millions. Therefore, Miss Borne could not have known that
44
seeking to receive a benefit from another person through regular speech would be
swept into the definition of advising, assisting, or training that person sufficient for
culpability under § 2339B.
C.
The prosecution of Miss Borne for planning to show and
demonstrate computer code to Allen violates her right to
freedom of expression.
The Fourteenth Circuit sets forth a vision of the First Amendment that is
neither supported by the cases nor by underlying principles of the First Amendment
itself. The First Amendment is certainly not “a suicide pact . . . to protect
terrorists,” but it still contains fundamental protections that cannot be ignored in
the name of preventing terrorism. R. ¶ 65. Showing and demonstrating the
computer code is speech protected by the First Amendment, and § 2339B as applied
to Miss Borne does not survive strict scrutiny. See HLP, 561 U.S. at 28. The first
step in the constitutional analysis is to determine whether what Miss Borne was
planning to do was speech at all. In this case, the computer code Miss Borne was
planning to show Allen is protected speech.
Expression that has “serious literary, artistic, political, or scientific
expression” has always been within the core of the First Amendment’s protection.
Miller v. California, 413 U.S. 15, 23 (1973). For example, the Court has previously
stated that the “painting of Jackson Pollock, music of Arnold Schöenberg, or
Jabberwocky verse of Lewis Carroll” are “unquestionably shielded” by the First
Amendment. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp., 515 U.S. 557, 569
(1995).
45
While this is a question of first impression for this Court, courts of appeals
that have dealt with the issue of whether computer code is speech protected by the
First Amendment have held in the affirmative. See, e.g., Universal City Studios, Inc.
v. Corley, 273 F.3d 429, 449 (2d Cir. 2001); Junger v. Daley, 209 F.3d 481, 484 (6th
Cir. 2000); Bernstein v. United States Dept. of Justice, 176 F.3d 1132, 1141 (9th Cir.
1999). The Second Circuit was particularly eloquent on this point:
Communication does not lose constitutional protection as “speech”
simply because it is expressed in the language of computer code.
Mathematical formulae and musical scores are written in “code,” i.e.,
symbolic notations not comprehensible to the uninitiated, and yet both
are covered by the First Amendment. If someone chose to write a novel
entirely in computer object code by using strings of 1’s and 0’s for each
letter of each word, the resulting work would be no different for
constitutional purposes than if it had been written in English.
Corley, 273 F.3d at 445–46.
As devices such as smartphones and tablets—and the code that runs them—
become increasingly intertwined in our daily lives, computer code has become
necessary expression not just for the engineering elite, but for all Americans. So
integral has the language of computers become that school districts across the
country have launched initiatives to integrate computer coding into the basic
primary and secondary level curriculum.2 Since the Second Circuit made its
observations in Corley in 2001, the reasons for recognizing computer code as within
For example, the Houston Independent School District recently “finalized a partnership agreement
with Code.org to roll out a comprehensive computer science/coding initiative to all HISD campuses
over the next three years.” Coding at HISD / #HISDecoded, Houston Independent School District,
http://www.houstonisd.org/Page/124414 (last visited Nov. 22, 2015).
2
46
the core of the First Amendment’s protection of speech have only become stronger.
273 F.3d at 449.
In this case, the computer code Miss Borne was planning to show Allen was
her “painting of Jackson Pollock, music of Arnold Schöenberg, or Jabberwocky verse
of Lewis Carroll.” Hurley, 515 U.S. at 569. She was a girl who not only loved playing
computer games, but also was passionate about programming. R. ¶ 4. Far from
being a teenager plagued by “senioritis,” Miss Borne spent free time learning and
honing programming skills. R. ¶ 8. Her computer code is what created her
“trophy”—the perfect cylinder made from the 3D printer. R. ¶ 24. And when she set
forth a path to realize her dream of becoming a White Hat Hacker—hackers
dedicated to using their skills for good—Miss Borne decided that she would use the
code to convey to Allen her potential. R. ¶¶ 27, 29. While computer code generally is
protected speech, the code Miss Borne planned to show Allen had a particularly
deep expressive element to it.
Nonetheless, even fully protected speech may be subject to regulation if the
government is able to meet the demands of strict scrutiny. See HLP, 561 U.S. at 28;
Burson v. Freeman, 504 U.S. 191, 199 (1992); Texas v. Johnson, 491 U.S. 397, 403
(2010). For the government to meet the demands of strict scrutiny, it must “do more
than assert a compelling state interest—it must demonstrate that its law is
necessary to serve the asserted interest.” Burson, 504 U.S. at 199. While the
Government certainly has a compelling interest in this case, that interest does not
justify criminalizing the speech of a seventeen-year-old girl.
47
In HLP, this Court recognized “that the Government’s interest in combating
terrorism is an urgent objective of the highest order.” 561 U.S. at 28. Plaintiffs
argued that “[t]he objective of combating terrorism does not justify prohibiting their
speech . . . because their support [would have] advance[d] only the legitimate
activities of the designated terrorist organizations, not their terrorism.” Id. at 28–
29. The Court rejected this argument by deferring to Congress’ findings on the
means necessary to achieve that end. It primarily noted, “foreign organizations that
engage in terrorist activity are so tainted by their criminal conduct that any
contribution to such an organization facilitates that conduct.” Id. at 29 (quoting
AEDPA § 301(a)(7)). Yet, the Court also noted its comfort with deferring to this
finding because Congress showed that it was “conscious of its own responsibility to
consider how its actions may implicate constitutional concerns”—the most
important of which was that “Congress . . . avoided any restriction on . . . any
activities not directed to, coordinated with, or controlled by foreign terrorist
groups.” Id. at 35–36.
In other words, Congress, the body to which the Court deferred in
determining what was necessary to fight terrorism, determined that at this time,
that fight only required prosecution of activities “coordinated with, or controlled by
foreign terrorist groups.” HLP, 561 U.S. at 36. If such prosecution is not necessary
in the fight against terrorism, then it does not meet the demands of strict scrutiny
necessary under the First Amendment.
48
In this case, Miss Borne clearly did not act in coordination with, or under the
direction of Allen. To find Allen in the first place, she had to predict his
whereabouts through an obscure algorithm with evidence she found on the Darknet.
R. ¶ 28. So secretive was Allen that even finding him in the first place was going to
be one of the pieces of evidence Miss Borne was planning to present to him to prove
her computer skills. R. ¶ 29. Because Congress deemed it unnecessary in the fight
against terrorism to prosecute uncoordinated undirected attempts to communicate
with FTOs, the prosecution of Miss Borne’s speech under § 2339B is a violation of
the First Amendment.
CONCLUSION
The judgment of the court of appeals should be reversed, and the case
remanded to the district court for further proceedings.
Respectfully submitted.
TEAM 71
NOVEMBER 23, 2015
APPENDIX
The First Amendment to the United States Constitution provides that
“Congress shall make no law . . . abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.”
The Fifth Amendment to the United States Constitution provides that “[n]o
person . . . shall . . . be deprived of life, liberty, or property, without due process of
law.”
Section 5845(f) of Title 26 of the United States Code provides:
The term ‘destructive device’ means (1) any explosive, incendiary, or
poison gas (A) bomb, (b) grenade, (C) rocket having a propellant charge
of more than four ounces, (D) missile having an explosive or incendiary
charge of more than one-quarter ounce, (E) mine, or (F) similar device;
(2) any type of weapon by whatever name known which will, or which
may be readily converted to, expel a projectile by the action of an
explosive or other propellant, the barrel or barrels of which have a bore
of more than one-half inch in diameter, except a shotgun or shotgun
shell which the Secretary finds is generally recognized as particularly
suitable for sporting purposes; and (3) any combination of parts either
designed or intended for use in converting any device into a destructive
device as defined in subparagraphs (1) and (2) and from which a
destructive device may readily assembled. The term ‘destructive
device’ shall not include any device which is neither designed nor
redesigned for use as a weapon . . . .
Section 2339B of Title 18 of the United States Code provides:
(a) Prohibited activities.-(1) Unlawful conduct.--Whoever knowingly provides material
support or resources to a foreign terrorist organization, or attempts or
conspires to do so, shall be fined under this title or imprisoned not
more than 20 years, or both, and, if the death of any person results,
shall be imprisoned for any term of years or for life. To violate this
paragraph, a person must have knowledge that the organization is a
designated terrorist organization (as defined in subsection (g)(6)), that
(1a)
2a
the organization has engaged or engages in terrorist activity (as
defined in section 212(a)(3)(B) of the Immigration and Nationality Act),
or that the organization has engaged or engages in terrorism (as
defined in section 140(d)(2) of the Foreign Relations Authorization Act,
Fiscal Years 1988 and 1989).
*
*
*
(g) Definitions. As used in this section-*
*
*
(4) the term “material support or resources” has the same
meaning given that term in section 2339A (including the definitions of
“training” and “expert advice or assistance” in that section).
*
*
*
(h) Provision of personnel. No person may be prosecuted under this
section in connection with the term “personnel” unless that person has
knowingly provided, attempted to provide, or conspired to provide a
foreign terrorist organization with 1 or more individuals (who may be
or include himself) to work under that terrorist organization’s direction
or control or to organize, manage, supervise, or otherwise direct the
operation of that organization. Individuals who act entirely
independently of the foreign terrorist organization to advance its goals
or objectives shall not be considered to be working under the foreign
terrorist organization’s direction and control.
Section 2339A(b) of Title 18 of the United States Code provides that
(1) the term “material support or resources” means any property,
tangible or intangible, or service, including currency or monetary
instruments or financial securities, financial services, lodging,
training, expert advice or assistance, safehouses, false documentation
or identification, communications equipment, facilities, weapons, lethal
substances, explosives, personnel (1 or more individuals who may be or
include oneself), and transportation, except medicine or religious
materials;
(2) the term “training” means instruction or teaching designed to
impart a specific skill, as opposed to general knowledge; and
(3) the term “expert advice or assistance” means advice or assistance
derived from scientific, technical or other specialized knowledge.