No. C15-1359-1
IN THE
Supreme Court of the United States
EMMALINE BORNE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT
BRIEF FOR PETITIONER
Team #91
Counsel for Petitioner
QUESTIONS PRESENTED
I.
Under 26 U.S.C. § 5845(f)(3), does a person possess a destructive device when
she places hairspray, matches, a 3D printed cylinder, and the code used to print
the cylinder in the same duffle bag?
II.
Under 18 U.S.C. § 2339B, does a person provide material support to a foreign
terrorist organization when she plans to show computer code that
demonstrates how to print a perfect 3D cylinder to a retired member of a
foreign terrorist organization?
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED .......................................................................................... ii
TABLE OF CONTENTS ............................................................................................... iii
TABLE OF AUTHORITIES .......................................................................................... v
JURISDICTIONAL STATEMENT ............................................................................... 1
STANDARD OF REVIEW ............................................................................................. 1
OPINIONS BELOW ...................................................................................................... 1
CONSTITIONAL AND STATUTORY PROVISIONS .................................................. 2
STATEMENT OF THE CASE ....................................................................................... 3
Statement of Facts ................................................................................................... 3
Procedural history .................................................................................................... 8
SUMMARY OF THE ARGUMENT .............................................................................. 8
ARGUMENT .................................................................................................................. 9
I. The Fourteenth Circuit Erred When It Determined That The Items In Ms.
Borne’s Luggage Are Properly Characterized As Destructive Devices Under 26
U.S.C. § 5845(f)(3). ................................................................................................... 9
A. Congress enacted 26 U.S.C. § 5845 in order to prevent firearms from being
sold to dangerous individuals, not to prevent the possession of ordinary
household items................................................................................................. 10
B. The government cannot use items that were not in Ms. Borne’s actual or
constructive possession to convict her under 26 U.S.C. § 5845(f)(3). ............. 12
C. This Court should adopt the subjective standard when analyzing claims
under 26 U.S.C. § 5845(f)(3). ............................................................................ 14
D. Even if this Court holds that the subjective standard should not be applied,
Ms. Borne did not possess a destructive device under either the objective
standard or the mixed standard. ...................................................................... 18
iii
1.
The items in Ms. Borne’s possession do not objectively appear to be
components of a destructive device. .......................................................... 19
2.
Even under the mixed standard, Ms. Borne did not possess a destructive
device. ......................................................................................................... 21
II. The Fourteenth Circuit Erred When It Determined That Ms. Bornes’ Intended
Conduct Constituted Material Support Under 18 U.S.C. § 2339B. ..................... 24
A. Congress Enacted § 2339B To Criminalize The Provision of Funds and
Resources to Foreign Terrorist Organizations, Not Petitioner’s Conduct. ..... 24
1. The government’s decision to prosecute petitioner cannot be reconciled
with the congressional intent of § 2339B.................................................... 24
2. The petitioner’s conduct does not constitute material support. ................ 27
3. The evidence was insufficient to prove that petitioners conduct constituted
material support. ......................................................................................... 29
B. Section 2339B as applied to Ms. Borne violates the First Amendment. ........ 30
1. Ms. Borne’s freedom of association has been violated. .............................. 31
2. Ms. Bornes’ freedom of speech has been violated. ...................................... 34
C. Section 2339B is unconstitutionally vague as applied to Ms. Borne. ............. 36
CONCLUSION............................................................................................................. 38
iv
TABLE OF AUTHORITIES
United States Supreme Court Cases
Dennis v. United States,
341 U.S. 494 (1951) ..................................................................................... 24, 25
Elfbrandt v. Russell,
384 U.S. 11 (1966) ....................................................................................... 31, 32
F.C.C. v. Fox Television Stations, Inc.,
132 S.Ct. 2307 (2012) ........................................................................................ 36
Henderson v. United States,
135 S.Ct 1780 (2015) ......................................................................................... 12
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) ..................................................... 27, 28, 30, 32, 33, 34, 35, 37
Hughey v. United States,
495 U.S. 411 (1990) ........................................................................................... 37
Kolender v. Lawson,
461 U.S. 352 (1983) ........................................................................................... 37
NAACP v. State of Ala. ex rel. Patterson,
357 U.S. 449 (1958) ........................................................................................... 30
R.A.V. v. City of St. Paul. Minn.,
505 U.S. 377 (1992) ........................................................................................... 35
Roberts v. United States Jaycees,
468 U.S. 609 (1984) ........................................................................................... 31
Roth v. United States,
354 U.S. 476 (1957) ........................................................................................... 35
Salve Regina Coll. v. Russell,
499 U.S. 225 (1991) ............................................................................................. 1
Scales v. United States,
367 U.S. 203 (1961) .......................................................................................... 32
v
United States v. Robel,
389 U.S. 258 (1967) ........................................................................................... 30
United States Court of Appeals Cases
Hunt v. City of Los Angeles,
638 F.3d 703 (9th Cir. 2011) ............................................................................. 36
Maldonado v. Morales,
556 F.3d 1037 (9th Cir. 2009) .................................................................... 36, 37
United States v. Ali,
799 F.3d 1008 (8th Cir. 2015) ........................................................................... 28
United States v. Al-Kassar,
660 F.3d 108 (2d Cir. 2011) .............................................................................. 28
United States v. Augustin,
661 F.3d 1105 (11th Cir. 2011) ......................................................................... 28
United States v. Bailey,
553 F.3d 940 (6th Cir. 2009) ....................................................................... 13, 14
United States v. Farhane,
634 F.3d 127 (2d Cir. 2011) ................................................................... 1, 28, 37
United States v. Fredman,
833 F.2d 837 (9th Cir. 1987) ...................................................................... 15, 16
United States v. Griffin,
684 F.3d 691 (7th Cir. 2012) ............................................................................. 13
United States v. Johnson,
152 F.3d 618 (7th Cir. 1998) .................................................... 11, 15, 19, 21, 22
United States v. Lussier,
128 F.3d 1312 (9th Cir. 1997) ........................................................................... 15
United States v. Morningstar,
456 F.2d 278 (4th Cir. 1972) ................................................................ 12, 16, 17
United States v. Mustafa,
406 Fed.Appx. 526 (2d Cir. 2011) .................................................................... 37
vi
United States v. Oba,
448 F.2d 892 (9th Cir. 1971) ............................................................................ 15
United States v. Posnjak,
457 F.2d 1110 (2d Cir. 1972) ......................................................... 15, 18, 19, 20
United States v. Spoerke,
568 F.3d 1236 (11th Cir. 2009) ................................................................... 14, 15
United States v. Thomas,
111 F.3d 426 (6th Cir. 1997) ............................................................................... 1
United States District Court Cases
United States v. Al-Arian,
308 F.Supp.2d 1322 (M.D. Fla. 2004) .............................................................. 27
United States v. Warsame,
537 F.Supp.2d 1005 (D. Minn. 2008) ......................................................... 25, 28
United States Statutes
10 U.S.C. § 9741 (1934) ............................................................................................... 10
18 U.S.C. § 2339A(b)(1) ............................................................................................... 26
18 U.S.C. § 2339B(a)(1) ........................................................................................passim
18 U.S.C. § 2339B(i)..................................................................................................... 30
26 U.S.C. § 5845(a)(8) .................................................................................................. 11
26 U.S.C. § 5845(f)(1) ................................................................................................... 11
26 U.S.C. § 5845(f)(2) .................................................................................................. 11
26 U.S.C. §5845(f)(3) ............................................................................................ passim
28 U.S.C. § 1254 ............................................................................................................. 1
28 U.S.C. § 1331 ............................................................................................................. 1
vii
Constitutional Amendments
U.S. Const. amend. I .................................................................................................... 30
Other Authorities
H.R. Rep. No. 104-383 (1995). ..................................................................................... 25
James B. Jacobs, Can Gun Control Work? 20-21 (2002) ............................................ 10
Kristin A Nardilillo, Dangerous Minds: The National Firearms Act and
Determining Culpability for Making and Possessing Destructive
Devices, 42 Rutgers L.J. 511 (2011)………………………………......10, 14, 18, 19
Brandon James Smith, Protecting Citizens and Their Speech: Balancing
National Security and Free Speech When Prosecuting the Material
Support of Terrorism, 59 Loy. L. Rev. 89 (2013)…………………………………26
Rachel E. Vanlandingham, Meaningful Membership: Making War
A Bit More Criminal, 35 Cardozo L. Rev. 79 (2013)…………………………24, 25
Robert Chesney, The Supreme Court, Material Support, And The
Lasting Impact Of Holder v. Humanitarian Law Project,
1 Wake Forest L. Rev. Forum 13, 14 (2010)………………………………………24
viii
JURISDICTIONAL STATEMENT
The final judgment of the United States Court of Appeals for the Fourteenth
Circuit was entered on October 1, 2015. R. at 2. This Court granted certiorari on
October 1, 2015. R. at 1. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1)
to review opinions from the courts of appeals by “writ of certiorari granted upon the
petition of any party.” 28 U.S.C. § 1254 (2012). This Court also has subject matter
jurisdiction because the issues presented arise under the Constitution and laws of
the United States. 28 U.S.C. § 1331 (2012).
STANDARD OF REVIEW
This case involves two questions of statutory interpretation. This Court
reviews questions of statutory interpretation de novo. Salve Regina Coll. v. Russell,
499 U.S. 225, 236 (1991) (“When de novo review is compelled, no form of appellate
deference is acceptable.”). In addition, interpretation of statutes 26 U.S.C. § 5845
and 18 U.S.C. § 2339B has expressly been held to require de novo review. See United
States v. Farhane, 634 F.3d 127, 134 (2d Cir. 2011); United States v. Thomas, 111
F.3d 426, 428 (6th Cir. 1997).
OPINIONS BELOW
The opinion of the United States District Court for the Central District of New
Tejas is unreported and does not appear in the record. The unreported opinion of the
United States Court of Appeals for the Fourteenth Circuit appears in the record at
pages 2-27. The Order granting certiorari by this Court appears on page 1 of the
record.
1
CONSTITIONAL AND STATUTORY PROVISIONS
Emmaline Borne is claiming a violation of her First and Fifth Amendment
rights. Ms. Borne was convicted under 26 U.S.C. § 5845(f)(3) and 18 U.S.C. § 2339B.
Providing material support is defined in § 2339A(b)(1). The applicable provisions are
as follows:
U.S. Const. amend. I:
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.
U.S. Const. amend. V reads, in pertinent part:
No person shall be . . . deprived of life, liberty, or property, without due process
of law; . . .”
26 U.S.C.A. § 5845(f) reads, in pertinent part:
Destructive device.--The term “destructive device” means
(3) any combination of parts either designed or intended for use in converting
any device into a destructive device as defined in subparagraphs (1) and (2)
and from which a destructive device may be readily assembled. The term
“destructive device” shall not include any device which is neither designed nor
redesigned for use as a weapon; . . .”
§ 2339A reads, in pertinent part:
(a) Offense.--Whoever provides material support or resources or conceals or
disguises the nature, location, source, or ownership of material support or
resources, knowing or intending that they are to be used in preparation for, or
in carrying out, a violation of [law] or in preparation for, or in carrying out, the
concealment of an escape from the commission of any such violation, or
attempts or conspires to do such an act, shall be fined under this title,
imprisoned not more than 15 years, or both, and, if the death of any person
results, shall be imprisoned for any term of years or for life
2
(b) Definitions.--As used in this section-(1) the term “material support or resources” means any property, tangible or
intangible, or service, including currency or monetary instruments or financial
securities, financial services, lodging, training, expert advice or assistance,
safehouses, false documentation or identification, communications equipment,
facilities, weapons, lethal substances, explosives, personnel (1 or more
individuals who may be or include oneself), and transportation, except
medicine or religious materials;
18 U.S.C.A. § 2339B reads, in pertinent part:
(a) Prohibited activities.-(1) Unlawful conduct.--Whoever knowingly provides material support or
resources to a foreign terrorist organization, or attempts or conspires to do so,
shall be fined under this title or imprisoned not more than 20 years, or both,
and, if the death of any person results, shall be imprisoned for any term of
years or for life. To violate this paragraph, a person must have knowledge that
the organization is a designated terrorist organization (as defined in subsection
(g)(6)), that the organization has engaged or engages in terrorist activity (as
defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that
the organization has engaged or engages in terrorism (as defined in section
140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and
1989).
STATEMENT OF THE CASE
Statement of Facts
Clive Allen, a consultant for the National Security Agency (“NSA”), released
millions of documents he illegally stole from the NSA on November 22, 2011. R. at 5.
He released the documents to the Darknet, a platform that has been used by
hacktivist groups to undermine the law as well as by individuals to promote the free
global exchange of information. Id. Following the release, Mr. Allen fled the country
after revealing that he was the “Millions” of the notorious Dixie Millions hacktivist
duo. Id. In response, the United States Secretary of State declared Dixie Millions a
3
foreign terrorist organization.
Id.
On March 20, 2012, Allen released a video
announcing his retirement and intent to live out the rest of his life in the country of
Azran, which had granted him asylum. R. at 6.
In the fall of 2011, high school seniors Emmaline Borne and Fiona Triton were
encouraged by their physics teacher, Ms. Ascot, to apply for a pre-college study abroad
program called Technical Promise. R. at 2. Ms. Borne is a bright teenager whose
love of playing computer games kindled her interest in computer programming. R.
at 3. After learning that Ms. Ascot shared her interest in online games, Ms. Borne
began meeting one-on-one with her teacher after school for additional instruction in
computer programming. R. at 4. Ms. Borne and Ms. Triton were accepted into
Technical Promise, hosted by the University of Misthallery in Azran, and quickly
became close friends. R. at 3-5.
In April, 2012, Fiona Triton’s father purchased a 3D printing kit hoping to
create new plastic filaments that would be more resilient than those currently used
to print 3D objects. R. at 7, 8. Mr. Triton hoped to sell these new filaments as a side
business to fund his retirement account. R. at 7. In April 2012, while at the Tritons’
house, Ms. Borne learned that Mr. Triton was having software problems with his 3D
printer. R. at 7. Mr. Triton accepted Ms. Borne’s offer to use her novice computer
programming skills to solve some of the issues. Id.
Ms. Borne discovered an error in the programming code that was causing the
3D printer to print an imperfect curve. Id. She took the code to Ms. Ascot because she
was unable to solve the problem herself. R. at 7-8. During this meeting, the two began
4
talking about hacktivist groups—specifically Dixie Millions. R. at 8. Ms. Ascot stated
that “a good hacker should never harm innocent individuals” and that she considered
Mr. Allen to be an admirable person. Id. On May 1, 2012, Ms. Ascot gave Ms. Borne
the perfected curve code, which Ms. Borne took to Mr. Triton. R. at 8, 9. Mr. Triton
was delighted when the test model printed flawlessly. R. at 9.
Mr. Triton discovered plans to print a 3D gun while surfing the web, two days
after receiving the perfected curve code from Ms. Borne. R. at 9. He hoped stronger
plastic filaments would withstand the heat produced by firing multiple bullets from
a printed gun. Id. He downloaded the plans and placed them on a gold USB drive. Id.
Throughout May, Mr. Triton and his daughter continued to work on his formula for
a stronger plastic filament. R. at 10. After their efforts proved unsuccessful, Ms.
Triton asked her father if she could take the formula to Azran for her professors to
examine. R. at 11. Mr. Triton rejected the idea, but Ms. Triton secretly downloaded
the formula anyway and placed it on a USB drive shaped like a cartoon robot. Id.
On May 5, 2012, Ms. Borne was at the Tritons’ home testing out the capabilities
of the 3D printer. R. at 10. Utilizing the curve code, they printed a cylinder that was
six and one half inches tall, and one half inch in diameter. Id. When Mr. Triton
verified that the printed product was a perfect cylinder, Ms. Borne asked if she could
keep it because it looked like a trophy. Id. Mr. Triton agreed and printed another copy
for himself. Id.
Before leaving for Azran, Ms. Borne began researching Mr. Allen. R. at 11. She
believed that Ms. Ascot admired Mr. Allen, and sought to obtain career advice from
5
him. Id. Utilizing the Darknet, Ms. Borne created a spreadsheet of places where Mr.
Allen had been sighted. R. at 11-12. She discovered a pattern to Mr. Allen’s activities
and predicted that he would be at the University of Misthallery café on June 5, 2012.
R. at 12. Ms. Borne created a calendar event in her smartphone labeled, “Meet Clive
Allen at Café.” Id.
On June 3, 2012, the girls began packing for their trip. Id. Ms. Triton packed
her USB drive containing the plastic filament formula in her luggage. Id. Ms. Borne
packed her purple USB drive that contained the perfected curve code and the 3Dprinted cylinder. Id. She packed these items to show Mr. Allen her computer
programming acumen. Id. She also included a spreadsheet of Mr. Allen’s reported
sightings to locate him, as well as a computer-generated picture of what she thought
he might look like. Id.
Ms. Borne packed her items in a duffle bag that her family routinely used for
camping. Id. Inside a small, waterproof, interior compartment were matches that her
family packed for camping emergencies. Id. She also packed hairspray to maintain
her hairstyle in the Azran humidity. R. at 13.
The next day, the girls left for the airport. Id. Due to a family emergency, Ms.
Borne’s parents were unable to drive her to the airport. Id. As a result, Mr. Triton
drove both girls to the airport. Id. On the way, Mr. Triton began playing music over
the car radio that he had downloaded onto the gold USB drive. Id. He planned to give
the USB to the girls as a going away present. Id.
6
During the drive to the airport, Mr. Triton rolled through a stop sign and was
pulled over by Officer Smith. R. at 13-14. Officer Smith discovered that there was an
outstanding warrant for Mr. Triton’s arrest resulting from an unresolved speeding
citation he had received two years ago. Id. Because Mr. Triton was placed under
arrest, Officer Smith waited with the girls until Mr. Triton’s wife could pick them up.
R. at 15.
While they were waiting, an alert on Ms. Borne’s phone flashed: “Meet Clive
Allen at Café.” Id. Officer Smith saw the reminder and recognized the name because
the police had recently received a memo indicating that an associate of Mr. Allen was
in the area. Id. Officer Smith placed the girls under arrest. Id. When the police
searched the car, they found the cartoon robot USB in Ms. Triton’s luggage, the purple
USB in Ms. Borne’s duffel bag, and Mr. Triton’s gold USB containing music and the
plans for a 3D-printed gun inserted in the car radio. R. at 16.
At trial, FBI agents admitted that their investigation of Ms. Borne revealed
that she intended to meet with various hacktivist groups to convince them “not to
‘exploit bank, financial, and government security flaws,’ because ‘that totally ruins
people’s lives.’” R. at 17. An FBI ballistics expert testified that he printed a 3D gun
using the unperfected plastic filaments formula found on the cartoon robot USB and
the gun plans found on the gold USB. R. at 18. When he tested the gun, it exploded
when fired. Id. The expert also testified that the cylinder, matches, and hairspray
found in Ms. Borne’s luggage could be combined to create a bomb. Id.
7
The government introduced additional evidence at trial, including its
speculation that Ms. Ascot was a member of Dixie Millions, although it was never
proven. R. at 17. Additionally, the government introduced a tweet from Ms. Borne
that stated: “With one wish, I wish all guns would blow up. #guncontrol.” R. at 18.
However, Ms. Borne sent this tweet in response to the gun-related death of one of her
classmates. Id.
Procedural history
Ms. Borne was convicted in the United States District Court for the Central
District of New Tejas for possessing a destructive device, in violation of 26 U.S.C. §
5845(f)(3) and providing material support to a foreign terrorist organization, in
violation of 18 U.S.C. § 2339B. R. at 18. She was convicted on both counts and
sentenced to terms of twelve months and fifteen years, respectively. Id. Ms. Borne
appealed and the United States Court of Appeals for the Fourteenth Circuit affirmed
the district court decision on October 1, 2015. R. at 2. Ms. Borne timely filed an appeal
and this Court granted certiorari. R. at 1.
SUMMARY OF THE ARGUMENT
Ms. Borne’s conviction under 26 U.S.C. § 5845(f)(3) should be overturned. This
Court should adopt the subjective standard for determining whether a person
possesses a destructive device because possessing component parts only becomes
nefarious when the person possessing the parts has an evil intent. Ms. Borne did not
have the subjective intent to utilize the cylinder, hairspray, and matches in her
luggage to create a destructive device. She did not have either actual or constructive
8
possession of the exploding gun plans; thus, she did not have the intent to create an
explosive device. Further, Ms. Borne’s conviction should be overturned even under
the objective or mixed standards. Under the objective standard, the items in Ms.
Borne’s possession could not objectively be viewed as component parts of a destructive
device. Under the mixed standard, each of the component parts had social or
commercial utility; thus, an analysis of Ms. Borne’s subjective intent is required to
convict her under the mixed standard. Because Ms. Borne did not possess the
subjective intent to create a destructive device, her conviction should be overturned.
Ms. Borne’s conviction under 18 U.S.C. 2339B should also be overturned. Ms.
Borne’s intended actions do not amount to material support of a foreign terrorist
organization. Ms. Borne sought to meet with Mr. Allen to show him the cylinder curve
code that she helped develop to demonstrate her computer programming acumen. She
never intended to give the computer code to Mr. Allen for use by Dixie Millions.
Further, the government has stretched § 2339B to reach Ms. Borne’s conduct. In
doing so, the government has unconstitutionally infringed her First Amendment
protections of association and free speech. Finally, § 2339B is vague as applied to Ms.
Borne. Therefore, Ms. Borne’s conviction under § 2339B should be overturned.
ARGUMENT
I.
The Fourteenth Circuit Erred When It Determined That The Items In Ms.
Borne’s Luggage Are Properly Characterized As Destructive Devices Under 26
U.S.C. § 5845(f)(3).
Congress did not pass the Gun Control Act of 1968 to prevent citizens from
carrying hairspray and matches. The items in Ms. Borne’s luggage could have been
9
used for a variety of purposes; thus, the correct standard for determining whether
she possessed a destructive device is the subjective standard. Since Ms. Borne never
said or did anything to indicate that she intended to produce a destructive device from
those items, she must be acquitted. Under the objective standard, Ms. Borne did not
violate 26 U.S.C. § 5845(f)(3) because the items in Ms. Borne’s possession are not
component parts of an already assembled bomb. Further, even under the mixed
standard that the Fourteenth Circuit applied, Ms. Borne should not have been
convicted because the items in her possession have legitimate social or commercial
use. Finally, Ms. Borne never possessed Mr. Triton’s USB drive containing the
computer code that the Fourteenth Circuit determined to be “a completed weapon.”
A.
Congress enacted 26 U.S.C. § 5845 in order to prevent firearms from
being sold to dangerous individuals, not to prevent the possession of
ordinary household items.
Congress passed the National Firearms Act (“the NFA”) to restrain the
increasing power of organized crime. James B. Jacobs, Can Gun Control Work? 20-21
(2002). The NFA imposed heavy taxes on those who manufactured or sold weapons
associated with gang violence at the time: machine guns, silencers, and shortbarreled shotguns and rifles. 10 U.S.C. § 9741 (1934). Pistols and revolvers were
specifically exempted. Id. These measures were implemented in order to “prevent the
criminal class from using firearms.” Kristen A. Nardilillo, Dangerous Minds: The
National Firearms Act and Determining Culpability for Making and Possessing
Destructive Devices, 42 Rutgers L.J. 511, 513 (2011) (emphasis added).
10
In 1968, following the assassinations of President Kennedy, Dr. Martin Luther
King, and CIA Director Robert Kennedy, Congress passed the Gun Control Act of
1968 (“the Act”). H.R. Res. 17735, 90th Cong. (1968). The stated purpose of the Act
was “to provide for better control of the interstate traffic in firearms.” Id. The Act
further revised the NFA by expanding the definition of the term “firearm” to include
“a destructive device” in an attempt to restrain the rising tide of criminal violence.
26 U.S.C. § 5845(a)(8). In passing the Act, Congress specified that “it is not the
purpose of this title to place any undue or unnecessary Federal restrictions or
burdens on law-abiding citizens with respect to . . . any lawful activity . . . .” H.R. Res.
17735, 90th Cong. (1968).
The Act amended Chapter 53 of the Internal Revenue Code to provide for the
regulation of destructive devices. Id. The term “destructive device” is defined in 26
U.S.C. § 5845(f) to include: “(1) any explosive, incendiary, or poisonous gas bomb,
grenade, rocket, . . . missile, . . . mine, or similar device; (2) any type of weapon . . .
which will, or which may be readily converted to, expel a projectile by the action of
an explosive or other propellant.” 26 U.S.C. §§ 5845(f)(1)-(2). Sections 5845(f)(1) and
5845(f)(2) primarily refer to a device that is completely assembled. United States v.
Johnson, 152 F.3d 618, 623 (7th Cir. 1998). However, when the component parts are
unassembled, the court must analyze those parts under § 5845(f)(3). Id. at 627.
Under subparagraph (3), a destructive device is defined as “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
11
may be readily assembled.” 26 U.S.C. § 5845(f)(3). Furthermore, a destructive device
cannot include any device “which is neither designed nor redesigned for use as a
weapon.” Id. Because “parts” can be combined into a myriad of final products, the
culpability of the possessor depends entirely on her intended use of those parts.
United States v. Morningstar, 456 F.2d 278, 280 (4th Cir. 1972).
Here, Ms. Borne did not possess any combination of items that were designed
to produce a destructive device. Hairspray, while flammable, is not produced to serve
as a fuel source. Likewise, matches can be found in nearly every home in America
and are designed to light candles and cigarettes, not explosive devices. Congress did
not intend to criminalize the possession of these items. Admittedly, the plastic
cylinder in Ms. Borne’s duffel bag was unique, but it is no more sinister than a length
of PVC pipe. Absent evidence that Ms. Borne intended to redesign any of these items
for use as a weapon, her conviction must be vacated.
B.
The government cannot use items that were not in Ms. Borne’s actual
or constructive possession to convict her under 26 U.S.C. § 5845(f)(3).
At the time of Ms. Borne’s arrest, she was not in actual possession of either of
the USB drives that belonged to the Tritons. Therefore, the only way she can be
deemed to have possessed those items is if the government establishes that she
constructively possessed them. To establish constructive possession, the state must
prove that Ms. Borne had both “the power and intent to exercise control over the
object[s].” Henderson v. United States, 135 S. Ct. 1780, 1784 (2015). Since Ms. Borne
had neither, she did not have constructive possession of either of the Tritons’ USB
drives.
12
Mere proximity to and association with the actual possessor of an item does
not establish constructive possession of that item. United States v. Griffin, 684 F.3d
691, 696 (7th Cir. 2012). In Griffin, the defendant was released from prison and told
that he could not live in a location where guns were present. Id. at 693. When a
S.W.A.T. team later executed a search warrant at his parents’ home, where he was
staying, they found ten firearms stashed in closets and a plethora of ammunition in
plain sight. Id. at 693-94. The Sixth Circuit reversed Griffin’s conviction since the
government had failed to prove that the defendant had both the power and intention
to exercise dominion over the guns and ammunition. Id. at 699.
Like Griffin, Ms. Borne was in a location where restricted items were located.
Griffin was aware that there were closets at his parents’ house but unaware that
those closets contained guns. Likewise, Ms. Borne knew that there was a USB drive
in the car, but did not know that it contained plans to print a gun. R. at 11, 13. Just
as the house and guns did not belong to Griffin, neither Mr. Triton’s gold USB nor
the robot-shaped USB in Ms. Triton’s bag belonged to Ms. Borne. R. at 13. Unlike in
Griffin, where ammunition was scattered across the house in plain sight, there was
nothing in Mr. Triton’s car that would alert Ms. Borne to the presence of anything
improper on Mr. Triton’s USB. Therefore, Ms. Borne’s presence in a vehicle
containing these items does not establish her constructive possession of either USB
drive.
Mere proximity to an item in a car is insufficient to establish constructive
possession of that item. United States v. Bailey, 553 F.3d 940, 945 (6th Cir. 2009). In
13
Bailey, the defendant was arrested while driving a stolen car after attempting to flee
from police. Id. at 945. When the police searched the car they found a loaded gun
under the driver’s seat. Id. at 946. On this evidence, Bailey was convicted of being a
felon in possession of a firearm. Id. at 942. The Sixth Circuit reversed Bailey’s
conviction, however, finding that this evidence was insufficient to prove that he
constructively possessed the gun. Id. at 950. The court found it especially significant
that Bailey did not own the car and that the government failed to prove that Bailey’s
fingerprints were on the gun. Id. at 946.
Like Bailey, Ms. Borne did not own the car she was in. R. at 13. As in Bailey,
there is no evidence that her fingerprints were found on either of the USB drives in
question. Finally, the evidence indicates that the USB drives were in the possession
of Mr. and Ms. Triton at the time that the car was searched, not under Ms. Borne’s
seat, as the gun was in Bailey. R. at 13, 16. Therefore, because constructive possession
cannot be established, neither USB can be demonstrated to have been in Ms. Borne’s
possession.
C.
This Court should adopt the subjective standard when analyzing claims
under 26 U.S.C. § 5845(f)(3).
While courts are in agreement that objective, strict liability should apply to §§
5845(f)(1)-(2), the Circuits are split as to the appropriate standard that should be
employed under § 5845(f)(3). Nardolillo, supra, at 520. Courts have applied different
standards depending on their interpretation of the words “designed or intended”
found in § 5845(f)(3). Id. The three standards they have articulated are the subjective
standard, the objective standard, and the mixed standard. See United States v.
14
Spoerke, 568 F.3d 1236, 1247-48 (11th Cir. 2009). Compare United States v. Oba, 448
F.2d 892, 894 (9th Cir. 1971) (where the court considered only the subjective intent
of the defendant), with United States v. Posnjak, 457 F.2d at 1118 (where the court
emphasized the objective nature of the device), and United States v. Johnson, 152
F.3d, at 628 (where the court applied a mixed standard). This Court should adopt the
subjective standard because items which may be legitimately possessed only become
criminal when their possessor intends to use them to produce a destructive device.
Any combination of parts that can be “designed or intended” for use as a
destructive device under subparagraphs (1) and (2) is a destructive device, but only
if a destructive device can be quickly assembled from those parts. Id. The subjective
standard correctly focuses on intent as a “necessary element” that the government
must prove in order to convict under § 5845(f)(3). United States v. Fredman, 833 F.2d
837, 839 (9th Cir. 1987). The requirement of intent under § 5845(f)(3) is logical
because the parts themselves are not destructive devices until they are put together;
thus, the defendant’s subjective intent must be weighted heavily when evaluating
guilt under § 5845(f)(3). United States v. Lussier, 128 F.3d 1312, 1317 (9th Cir. 1997);
United States v. Oba, 448 F.2d at 894-95.
The objective nature of a collection of items is irrelevant when the defendant’s
subjective intent clearly demonstrates his purpose in possessing those items. Oba,
448 F.2d at 893 (9th Cir. 1971). In Oba, the defendant was arrested with seven sticks
of dynamite wrapped in copper wire along with dynamite fuse and blasting caps. Id.
He argued that these items could not constitute a destructive device under §
15
5845(f)(3) since commercial dynamite had a legitimate commercial application. Id.
However, during interrogation, the defendant admitted that he intended to use the
device to “dynamite the City of Eugene, Oregon.” Id. at 894. The Ninth Circuit
concluded that in light of the defendant’s stated intent it would be “absurd to even
question its inclusion within the definition of ‘destructive device’ approved by
Congress, or to assert that that it is not a weapon.” Id.
Intent is a necessary element that must be proven in order to convict a
defendant under § 5845(f)(3).United States v. Fredman, 833 F.2d at 839. In Fredman,
police officers seized “two bundles of commercial detonator cord, three commercial
detonator fuses, and two commercial igniters” during a lawful search of the
defendant’s home. Id. at 837-38. The Ninth Circuit reversed his conviction, because
there was no proof “that those components were intended for use, design, or redesign
as a weapon.” Id. at 840 (emphasis added). The court reasoned that “intent is a
necessary element” and absent proof of intent to use the parts as a weapon a
conviction cannot be sustained under § 5845(f)(3). Id. at 839.
The defendant’s intent to produce a destructive device must be proven in order
to uphold a conviction under § 5845(f)(3). Morningstar, 456 F.2d at 281. In
Morningstar, the government attempted to show that “four sticks of black powder
pellet explosive fastened together with electrical tape and several unattached
blasting caps” was a destructive device. Id. at 279-80. The Fourth Circuit determined
“that Congress provided that the use for which these materials are intended
determines whether they fall within the Act.” Id. at 280 (emphasis added). Not only
16
must the items be able to be readily assembled into a bomb, but the government must
also prove beyond a reasonable doubt that the defendant intended to convert the
component parts into a bomb or other destructive device. Id. at 281-82
Ms. Borne’s intent regarding each item demonstrates that she did not possess
the items in her luggage with the intent to create a destructive device. Ms. Borne
cannot be convicted utilizing the subjective standard as articulated in Oba, Fredman,
and Morningstar.
First, Ms. Borne concedes that she had matches, a plastic cylinder, and
hairspray in her possession, but she did not intend to create a destructive device with
those items. R. at 16. With respect to the matches, the record reflects that they were
always kept in the duffle bag to use “for camping emergencies.” R. at 12. Ms. Borne
did not pack the matches nor does their presence demonstrate her intent to bring
them along on her trip to Azran. Id. Ms. Borne also did not intend to convert the
hairspray for use as a destructive device. Ms. Borne’s specific intent regarding the
hairspray was to keep her hair in style in the high humidity of Azran. R. at 13.
Finally, the plastic cylinder was packed in order to show off her computer
programming acumen to Mr. Allen not to create a destructive device. R. at 12.
Second, Ms. Borne neither actually nor constructively possessed Mr. Triton’s
gold USB drive that contained the 3D gun plans. But even if this Court were to find
that she constructively possessed the USB, Ms. Borne was not aware that it contained
gun plans. Mr. Triton downloaded the code to print a handgun on a 3D printer and
saved it on the gold USB drive. R. at 9. He stated that he thought he could develop a
17
functional 3D printed gun using new plastic filaments he was developing. Id. There
is no evidence in the record that Ms. Borne knew of Mr. Triton’s plans to print a gun,
nor did she assist Mr. Triton in creating the stronger plastic filament. R. at 10-11.
Furthermore, even if Ms. Borne had been aware of the gun plans, she did not
violate § 5845(f)(3) because she had no intent to create an exploding gun. The
government may point to a tweet by Ms. Borne where she stated: “With one wish, I
wish all guns would blow up. #guncontrol.” R. at 18. However, Ms. Borne made this
tweet after the “gun-related death of a classmate” and does not indicate Ms. Borne’s
specific intent with respect to these gun plans. R. at 18. Also, neither Ms. Borne nor
Mr. Triton ever printed a completed gun using the plans saved on the gold USB drive.
Thus, Ms. Borne was unaware that the printed gun would “always blow up when
fired.” R. at 18. Therefore, Ms. Borne cannot be convicted under § 5845(f)(3) utilizing
the subjective standard because she did not have the intent to use the objects that
were in her possession to create a destructive device.
D.
Even if this Court holds that the subjective standard should not be
applied, Ms. Borne did not possess a destructive device under either the
objective standard or the mixed standard.
The objective standard is the narrowest interpretation of § 5845(f)(3).
Nardolillo, supra, at 523. This standard interprets Congress’s intention to prohibit
only those devices specifically enumerated in subparagraphs (1) and (2). Id.
Subparagraph (3) was enacted in order to prevent criminals from avoiding
prosecution by disassembling the component parts of weapons and assembling them
at a later date. Posnjak, 457 F.2d at 1116. This standard imposes strict liability on a
18
defendant who possesses a “device [that] explicitly falls within the confines of the
subparagraphs within § 5845(f).” Id. However, any objects that do not combine to form
an item listed in § 5845(f)(1) or (2) are exempt from regulation. Nardolillo, supra, at
523. The mixed standard takes into consideration the objective nature of the parts to
determine if the possessor intended to create a destructive device. Johnson, 152 F.3d
at 624. If the parts could be used for legitimate and illegitimate purposes, then the
subjective intent of the possessor is analyzed. Id.
1.
The items in Ms. Borne’s possession do not objectively appear to
be components of a destructive device.
Under the objective standard, only disassembled parts of “clearly identifiable
weapons” qualify as component parts of a destructive device. Posnjak, 457 F.2d at
1116. In Posnjak, the defendant sold 4,100 sticks of dynamite with fuse and
unattached blasting caps to an undercover federal agent. Id. at 1112. The agent told
Posnjak that he intended to sell the dynamite to a Cuban revolutionary group that
would use the dynamite for destructive purposes. Id. The defendant was arrested
when he delivered the dynamite to the undercover agent. Id. The defendant argued
that regardless of his intended purpose, commercial dynamite was not covered by the
statute and that he could not be convicted under § 5845(f). Id. at 1113.
The Second Circuit reversed the conviction because Congress only sought to
criminalize possession of “clearly identifiable weapons” that were “so prone to abuse
that they were considered per se dangerous and unnecessary for legitimate pursuits.”
Id. at 1116 (emphasis in original). The Second Circuit noted that the item in question
was commercial dynamite that could be used in blasting, which is a legitimate
19
pursuit. Id. at 1117. The court noted that companies that utilize commercial dynamite
do not register their dynamite under the statute. Id. Therefore, the defendants could
not be convicted under § 5845(f) because the component parts created commercial
dynamite. Id. at 1121. The Second Circuit stressed that while dynamite could be used
as an explosive material in a device that would fit under § 5845(f), the defendants did
not have all of the components that were necessary to construct such a device. Id. at
1117.
Here, like the component parts in Posnjak, the items possessed by Ms. Borne
were not designed to be a destructive device. The hairspray, cylinder, and matches
found in Ms. Borne’s luggage were not designed to be a bomb or any destructive device
enumerated in § 5845(f). Admittedly, a government ballistics expert testified at trial
that with the proper knowledge these items, combined with other miscellaneous
items, could be used to make a bomb. R. at 18 (emphasis added). However, there was
no evidence produced at trial that showed that Ms. Borne had the requisite
knowledge necessary to construct such a bomb or that she had access to these unenumerated “miscellaneous items.” Therefore, these items in Ms. Borne’s luggage do
not qualify as a destructive device the objective standard.
With respect to Mr. Triton’s USB drive, not only was it not in Ms. Borne’s
possession, the firearm plans it contained is nothing more than computer code.
Computer code is not specifically enumerated in § 5845(f) as a destructive device. As
a result, people possessing computer code are not expected to register their code
under the statute. Further, like the appellants in Posnjak, Ms. Borne was not in
20
possession of all of the component parts that were necessary to turn the computer
code into an exploding gun. Specifically, Ms. Borne was not in possession of a 3D
printer. Without a 3D printer, Ms. Borne has no way of producing the exploding gun.
Ms. Borne was also not in possession of the stronger plastic filaments that were
utilized by the FBI ballistics expert to print the gun. The stronger plastic filaments
were developed by Mr. Triton and his daughter. R. at 10-11. Ms. Borne was not aware
that Mr. Triton was working on creating a stronger plastic filament in order to create
a gun, nor was she ever in possession of the USB drive that the plastic filament
formula was saved on. Therefore, absent those items, the computer code could not
objectively be viewed as the component parts of a weapon.
2.
Even under the mixed standard, Ms. Borne did not possess a
destructive device.
Even if this Court holds that the mixed standard is the appropriate standard
to use to analyze a “combination of parts” under § 5845(f)(3), the Fourteenth Circuit
erred in applying that standard to these facts. The mixed standard is essentially a
combination of the objective and subjective standards. See Johnson, 152 F.3d at 624.
If the device cannot objectively be viewed as a destructive device, then the defendant’s
subjective intent is analyzed to determine whether the defendant intended to use the
device for destructive purposes. Id.
When component parts can only be used to produce a destructive device, the
defendant’s intent is irrelevant. Johnson, 152 F.3d at 628. In Johnson, the defendant
planted two devices in a department store. Id. at 620. Each device contained a fuse
that fed into its interior, which contained incendiary powder and nails. Id. at 621.
21
The defendant was convicted after admitting that he created the devices. Id. On
appeal he argued that the district court erred in refusing to admit evidence that he
did not intend the devices to function as weapons. Id. at 622.
The Seventh Circuit developed an analytical framework that involved a twostep process based purely on the construction of the statute. Id. at 624-25.
Subparagraph (3) states that a device can be converted into a destructive device by
“design or intent.” Id. In the first step, the court objectively looked at the components’
design to determine if they were “inherently susceptible only to use as a destructive
device.” Id. at 624. If the device can only be used for destructive purposes, without
any valid social or commercial purposes, then the analysis ends and the device is
considered a “destructive device.” Id. However, if the device has the potential to be
used for legitimate or illegitimate ends, then the subjective intent of the defendant
must be considered. Id. This second step is required to protect citizens from being
prosecuted for seeking to utilize the materials, parts, or device for “a good social or
commercial purpose.” Id. The Seventh Circuit held that the district court did not err
in refusing to admit evidence of the defendant’s intent because the objective
characteristic of the device showed that it could only be utilized as a weapon. Id. at
628.
Here, unlike the device in Johnson, the items in Ms. Borne’s duffle bag could
be used for legitimate purposes. The hairspray, cylinder, and matches all have valid
social or commercial purposes. The cylinder has commercial purposes, as a perfect 3D
printed cylinder can be utilized to create new objects on a 3D printer. Matches and
22
hairspray also have obvious social and commercial purposes. Therefore, under the
mixed standard, Ms. Borne’s subjective intent must be analyzed.
Ms. Borne has stated that she brought the cylinder and curve code with her to
show off her computer programming acumen to Mr. Allen. R. at 12. She brought the
hairspray to maintain her hairstyle while coping with the intense Azran humidity.
R. at 13. Further, Ms. Borne did not pack the matches; they were already in the duffle
bag when she packed for her trip. R. at 12. Therefore, her subjective intent was not
to create a destructive device with these parts and her conviction should be reversed
under the mixed standard.
Even if this Court considers the gun plans on the gold USB drive, these plans
are not inherently susceptible for use only as a destructive device. Unlike the device
in Johnson, the plans themselves are not of an already assembled weapon, nor are
they without commercial value. After all, Mr. Triton’s purpose for downloading the
code was to make money. R. at 9. Further, Ms. Borne did not possess the subjective
intent to use the gun plans as a destructive device. Ms. Borne was unaware that the
gold USB drive contained plans to print a 3D gun. There is no evidence that Ms.
Borne assisted or even knew of Mr. Triton’s plans to print a 3D gun. Since the
government cannot prove that Ms. Borne’s subjective intent was to use the plans to
print a destructive device, this Court should overturn her conviction under §
5845(f)(3).
23
II.
The Fourteenth Circuit Erred When It Determined That Ms. Bornes’ Intended
Conduct Constituted Material Support Under 18 U.S.C. § 2339B.
Resolving Ms. Borne’s case turns on “whether the gravity of the ‘evil,’
discounted by its improbability, justifies such invasion of free speech as is necessary
to avoid the danger.”United States v. Dennis, 183 F.2d 201, 212 (2d Cir. 1950) aff'd,
341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 (1951). This principled approach
demonstrates why Ms. Borne’s intended conduct does not constitute material support
to a foreign terrorist organization (“FTO”). Applying § 2339B to Ms. Borne’s conduct
is an unjustifiable invasion of her First Amendment free speech rights. Section 2339B
was designed to prevent terrorist activity, not Ms. Borne’s conduct. If § 2339B is read
as broadly as the government proposes, then it would turn every passing encounter
or attempted encounter with a member of a FTO into material support.
A.
Congress enacted § 2339B to criminalize the provision of funds and
resources to foreign terrorist organizations, not Ms. Borne’s conduct.
Section 2339B was not designed to reach Ms. Borne’s conduct. It was intended
to operate as an embargo against FTO’s by cutting off the transfer of funds and
services. Robert Chesney, The Supreme Court, Material Support, And The Lasting
Impact Of Holder v. Humanitarian Law Project, 1 Wake Forest L. Rev. Forum 13, 14
(2010). Ms. Borne’s conduct does not constitute material support under § 2339B and
characterizing it as such is inconsistent with Congress’s legislative intent.
1.
The government’s decision to prosecute Ms. Borne cannot be
reconciled with the congressional intent of § 2339B.
Over three decades ago, Congress launched a series of legislative attempts “to
disable terrorist groups in the 1980s and 1990s” with little success. Rachel E.
24
Vanlandingham, Meaningful Membership: Making War A Bit More Criminal, 35
Cardozo L. Rev. 79, 85 (2013). These congressional attempts “shifted away from
terrorist activity itself to the wider field of the FTOs’ sustaining activities, such as
fundraising and arms acquisition.” Id. Two legislative proposals in 1982 and 1984,
attempted to criminalize “sustaining activities” but failed because of “freedom of
association concerns” and “First Amendment concerns.” Id. at 85-87. In response to
the World Trade Center bombing in 1993, Congress successfully passed § 2339A,
which criminalized providing material support in furtherance of terrorist acts. Id. at
88. However, § 2339A proved “insufficient” because it only “focused on contributions
to actual terrorist acts.” Id.
In 1996, Congress renewed efforts to criminalize sustaining activities and
successfully passed § 2339B. Id. at 89. Congress “designed § 2339B primarily to limit
terrorist organizations’ fundraising efforts in the United States” and did so in hopes
that it “would serve a greater preventative function.” Id. According to its legislative
history, Congress intended to criminalize the transfer of “funds, goods, or services to
an organization, or to any of its subgroups” because doing so frees up other funds and
resources “that can then be spent on terrorist activities.” H.R. Rep. No. 104-383, at
81 (1995). With “the increasing sophistication of terrorist organizations” in mind,
Congress set its sights on cutting off funds to “international terrorism under the guise
of humanitarian or political causes.” United States v. Warsame, 537 F.Supp.2d 1005,
1010 (D. Minn. 2008). Thus, the statute criminalizes anyone who “knowingly provides
material support or resources to a foreign terrorist organization.” 18 U.S.C. §
25
2339B(a)(1) (emphasis added). Material support is defined in Section 2339A and
includes, among other things, the transfer of property, finances, training, expert
advice or assistance, transportation, and makes an exception for “medicine or
religious materials.” 18 U.S.C. § 2339A(b)(1).
Ms. Borne’s conduct cannot be characterized as material support because her
intent was to impress Mr. Allen in order to obtain career advice. R. at 11-12.
Stretching § 2339B to reach Ms. Borne’s conduct cannot be reconciled with Congress’
requirement that Ms. Borne “knowingly” provide material support to a FTO. Ms.
Borne intended the opposite. Ms. Borne intended to receive support from Mr. Allen
by first gaining his approval, then receiving career advice. Yet, despite her
admiration for Mr. Allen, she had no relationship with him. Nothing in § 2339B, or
its legislative history, indicates that Congress intended to criminalize such
attenuated conduct.
Construing § 2339B to reach Ms. Borne’s conduct would necessarily criminalize
a broad range of conduct not intended by Congress. The knowledge requirement in §
2339B expanded the government’s ability to prosecute by removing “the need to prove
that the defendant knew his general provision of support would be used in the
commission of a specific offense or attack.” Brandon James Smith, Protecting Citizens
and Their Speech: Balancing National Security and Free Speech When Prosecuting
the Material Support of Terrorism, 59 Loy. L. Rev. 89, 93 (2013). But that expansion
was not designed to criminalize a young student traveling abroad “with a case of hero
worship.” R. at 25. That is because a seventeen year old student carrying a “trophy”
26
plastic cylinder, and computer code is not the kind of activity that Congress intended
to criminalize. R. at12. If Ms. Borne’s conduct is material support, then New York
City taxi cab drivers, or hotel staff, that knowingly transport or provide lodging to
known members of an FTO, are also guilty of providing material support. See United
States v. Al-Arian, 308 F.Supp.2d 1322, 1337-38 (M.D. Fla. 2004). It was not
Congress’s intent to criminalize such a broad a range of conduct.
2.
The petitioner’s conduct does not constitute material support.
Ms. Borne did not violate § 2339B because her conduct demonstrates that she
did not intend to materially support Dixie Millions. Despite the Fourteenth Circuit’s
holding, Ms. Borne was not “engaged in activities designed to further the goals of
Dixie Millions.” R. at 22. Rather, Ms. Borne’s conduct demonstrates that “she
intended to meet with Mr. Allen in order to learn more about the man himself.” R. at
25 (emphasis added).
Providing monetary support, legal training, and other tangible aid constitutes
material support under § 2339B. Holder v. Humanitarian Law Project, 561 U.S. 1, 10
(2010). The plaintiffs sought to provide support to the Kurdistan Workers Party
(“PKK”) and the Liberation Tigers of Tamil Eelam (LTTE), both of which had been
designated as FTO. Id. at 9. The plaintiffs insisted that they only wanted to provide
money and relief to the non-terrorist activities of those organizations. Id. at 33. This
Court stated that FTO’s often “have a dual structure” and highlight their
humanitarian efforts in order to convince potential donors to contribute to their
organization would use the money. Id. at 31. Providing monetary support for their
27
humanitarian efforts would free up the organizations other resources to support their
terrorist efforts. Id. at 31. This Court also held that providing legal training and
tangible aid was also material support. Id. at 36-38. This support would “help[] lend
legitimacy to foreign terrorist groups–legitimacy that makes it easier for those groups
to persist, to recruit members, and to raise funds–all of which facilitate more terrorist
attacks. Id. at 30.
Since Humanitarian Law Project, the lower courts have also described
instances of what constitutes material support under § 2339B. The courts have
identified providing personnel, monetary support, and training as material support
under § 2339B. See United States v. Ali, 799 F.3d 1008 (8th Cir. 2015) (holding that
planning and participating in fundraising teleconferences for foreign terrorist
organizations was material support); United States v. Al-Kassar, 660 F.3d 108 (2d
Cir. 2011) (holding that agreeing to sell weapons to a terrorist group for use against
the United States was providing material support); United States v. Augustin, 661
F.3d 1105 (11th Cir. 2011) (holding that taking an oath to Al Qaeda and planning to
bomb FBI buildings in the United States was material support); United States v.
Farhane, 634 F.3d 127 (2d Cir. 2011) (holding that training jihad warriors in deadly
martial arts was material support); United States v. Warsame, 537 F.Supp.2d 1005
(D. Minn. 2008) (holding that voluntarily participating in an Al Qaeda training camp,
sending money to a former Al Qaeda training camp instructor, and giving Englishlanguage lessons to Al Qaeda members was material support).
28
Ms. Borne’s intended conduct did not constitute material support under the
statute. The government contends that Ms. Borne was going to show Dixie Millions
potentially dangerous computer code, which would enable it to profit financially. R.
at 22. However, Ms. Borne was not in actual or constructive possession of either the
gun plans or the plastic filaments formula, nor was she aware of their existence. R.
at 9-13. The only computer code that can be tied to Ms. Borne was the cylinder curve
code. R. at 12. Even if Ms. Borne had shown Mr. Allen the cylinder code, that action
would not have constituted material support under § 2339B. It would not have
provided Dixie Millions with additional personnel. Also Ms. Borne would not have
been teaching or training Dixie Millions by showing Mr. Allen the cylinder code.
Furthermore, her plans were to show Mr. Allen the cylinder code, not give the code
to Dixie Millions. R. at 12. Since she had no intention of giving Mr. Allen the code,
Dixie Millions could not have profited financially from it. Therefore, Ms. Borne did
not provide material support to the Dixie Millions terrorist organization.
3.
The evidence was insufficient to prove that Ms. Borne’s conduct
constituted material support.
The Due Process Clause of the Fifth Amendment protects an individual from
being convicted of a crime “except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime . . . charged.” In re Winship, 397 U.S. 358, 364
(1970). Under sufficiency of the evidence claims, this Court is required to “view the
evidence in the light most favorable to the prosecution.” Jackson v. Virginia, 443 U.S.
307, 319 (1979).
29
Here, even viewing all of the evidence in the light most favorable to the
prosecution, Ms. Borne’s conviction under § 2339B cannot stand. The prosecution had
to prove beyond a reasonable doubt that Ms. Borne intended to provide material
support to an FTO. The evidence shows that Ms. Borne intended to show Mr. Allen
the curve code not give Mr. Allen the cylinder code to use on behalf of Dixie Million.
R. at 12. The evidence also shows that Ms. Borne had no knowledge of the gun plans
or the plastic filaments formula that was on the Tritons’ USB drives Therefore, the
prosecution did not present sufficient evidence to convict Ms. Borne under § 2339B.
B.
Section 2339B as applied to Ms. Borne violates the First Amendment.
The First Amendment provides that the government shall make no law
“abridging the freedom of speech.” U.S. Const. amend. I. The First Amendment
protects the freedom of association because it “is an inseparable aspect of the ‘liberty’
assured by the Due Process Clause of the Fourteenth Amendment, which embraces
freedom of speech.” NAACP v. State of Ala. ex rel. Patterson, 357 U.S. 449, 460 (1958).
These essential constitutional liberties cannot even be removed by the war power.
U.S. v. Robel, 389 U.S. 258, 263 (1967). The grave specter of international terrorism
currently haunting this nation does not justify the “forfeiture of First Amendment
rights.” Humanitarian Law Project, 561 U.S. at 44 (Breyer, J., dissenting).
Additionally, § 2339B(i) cautions government officials not to “construe or appl[y this
section] so as to abridge the exercise of rights guaranteed under the First Amendment
. . . .” 18 U.S.C. § 2339B(i). Here, Ms. Borne’s First Amendment rights of association
30
and free speech have been violated by the government’s application of § 2339B to her.
Therefore, her conviction should be overturned.
1.
Ms. Borne’s freedom of association has been violated.
The government is unconstitutionally expanding the reach of § 2339B by
punishing Ms. Borne for attempting to associate with Mr. Allen. Freedom of
association is constitutionally protected for two separate reasons. Roberts v. United
States Jaycees, 468 U.S. 609, 617 (1984). First, the government is prohibited from
unduly interfering with the “choices [of citizens] to enter into and maintain certain
intimate human relationships . . . because of the role of such relationships in
safeguarding the individual freedom that is central to our constitutional scheme.” Id.
at 617-18. Second, individuals have also been given the freedom “to associate for the
purpose of engaging in those activities protected by the First Amendment–speech,
assembly, petition for the redress of grievances, and the exercise of religion.” Id.
(emphasis added). Ms. Borne’s desire to associate with Mr. Allen implicates both of
these purposes. She wishes to develop a personal relationship with him in order to
receive career advice, and her association is for the purpose of engaging in speech.
Therefore, her conviction should be overturned.
In carefully guarding the freedom of association, this Court has held that to
criminalize mere membership in an organization, absent the specific intent to further
the organizations illegal goals, essentially “rests on the doctrine of ‘guilty by
association’ . . . . Such a law cannot stand.” Elfbrandt v. Russell, 384 U.S. 11, 19
(1966). In Elfbrandt, the State of Arizona required its employees to take an oath to
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support the Constitution of the United States, the laws of Arizona, remain loyal to
the United States, protect the United States from its enemies, and faithfully
discharge the duties of the office in which the person worked. Id. at 12. Arizona
criminally prosecuted employees who took the oath and were later found to be
knowing and willful members of either the Communist party or any organization
which advocated the forceful overthrow of the government. Id. at 13.
This Court determined that “a ‘blanket prohibition of association with a group
having both legal and illegal aims’ would pose ‘a real danger that legitimate political
expression or association would be impaired.’” Id. at 15 (quoting Scales v. United
States, 367 U.S. 203, 229-30 (1961)). Punishing a person for mere membership or
association with a group without the specific intent to further the illegal aims of the
group “run[s] afoul of the Constitution.” Id. at 16. This Court reasoned that citizens
who join a group without “shar[ing] its unlawful purposes . . . surely pose no threat,
either as citizens or public employees.” Id. at 17. This Court further noted that these
types of laws create a presumption that all members share “the unlawful aims of the
organization.” Id. Such laws are unconstitutional because they infringe protected
First Amendment freedoms by punishing membership or association “without the
‘specific intent’ to further the illegal aims of the organization. Id. at 19.
In Humanitarian Law Project, this Court held that § 2339B does not
criminalize membership in an FTO; it criminalizes providing material support to a
FTO. 561 U.S. at 18 (emphasis added). This Court agreed with the reasoning of the
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Ninth Circuit that § 2339B does not “penalize mere association with a foreign
terrorist organization.” Id. at 39.
Here, the government is punishing Ms. Borne for attempting to associate with
Mr. Allen. In doing so, it goes beyond the holding of Humanitarian Law Project by
punishing Ms. Borne, not for providing material support to Dixie Millions, but rather
for associating with Mr. Allen. This expansion of § 2339B creates a blanket
prohibition on association with both FTOs and members of FTOs, something
Humanitarian Law Project specifically states that § 2339B was not meant to prohibit.
Furthermore, the prosecution of Ms. Borne goes beyond penalizing mere
membership in an organization. Ms. Borne is not a member of Dixie Millions, nor
does she have the specific intent to further the group’s terrorist objectives. Ms.
Borne’s intent in meeting Mr. Allen was two-fold. First she wanted to obtain career
advice from Mr. Allen. R. at 11. Mr. Allen’s wealth of knowledge of computers and
computer programming would be beneficial for an aspiring computer programmer
like Ms. Borne. R. at 5. Second, Ms. Borne sought to convince hacker groups like Dixie
Millions “not to ‘exploit bank, financial, and government security flaws,’ because ‘that
totally ruins people’s lives.”’ R. at 17. Thus, Ms. Borne’s specific intent was not to
further the terroristic objectives of Dixie Millions by associating with Mr. Allen.
Additionally, if Ms. Borne’s conviction is sustained, the government would be able to
employ § 2339B to prosecute citizens who merely attempt to associate with
individuals who are members of an FTO. Section 2339B(i) prohibits construing the
statute in a way that abridges the rights guaranteed under the First Amendment.
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Therefore, because convicting Ms. Borne would result in unconstitutionally
stretching § 2339B to permit criminalizing mere association with members of an FTO,
her conviction should be overturned.
2.
Ms. Bornes’ freedom of speech has been violated.
The government is unconstitutionally stretching the reach of § 2339B by
punishing Ms. Borne for attempting to speak to Mr. Allen. Even though international
terrorists are a continuous threat to the nation, this fear does not “warrant abdication
of the judicial rule” in preserving First Amendment freedoms. Humanitarian Law
Project, 561 U.S. at 34. The government’s expertise on matters of national security
does not “automatically trump the Court’s own obligation to secure the protection
that the Constitution grants to individuals.” Id. Justice Breyer, in his dissent,
articulated how this Court should address as applied challenges to § 2339B:
[W]henever the fundamental rights of free speech and assembly are
alleged to have been invaded, it must remain open [for judicial
determination] whether there actually did exist at the time a clear
danger; whether the danger, if any, was imminent; and whether the evil
apprehended was one so substantial as to justify the stringent
restriction interposed by the legislature. In such circumstances, the
“judicial function commands analysis of whether the specific conduct
charged falls within the reach of the statute and if so whether the
legislation is consonant with the Constitution. Hence, a legislative
declaration does not preclude enquiry into the question whether, at the
time and under the circumstances, the conditions existed which are
essential to validity under the Federal Constitution.
Id. at 54 (Breyer, J., dissenting) (citations omitted) (internal quotations marks
omitted). Here, the speech that Ms. Borne was attempting to engage in did not
amount to a clear danger that would justify the criminal punishment imposed by §
2339B. Therefore, her conviction should be overturned.
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The First Amendment was not intended to protect every utterance. Roth v.
United States, 354 U.S. 476, 483 (1957). Therefore, the government can place contentbased restrictions on speech, but only if there is a compelling government interest
that is narrowly tailored to achieve the compelling interest. R.A.V. v. City of St. Paul,
Minn., 505 U.S. 377, 403 (1992). When the government places a content-based
restriction on speech the gravity of the evil of the speech must “justif[y the required]
invasion of free speech as is necessary to avoid the danger.” Dennis v. United States,
341 U.S. 494, 510 (1951). The speech that Ms. Borne intended to participate in did
not present a “clear danger” that was “imminent” to “justify” prosecution under §
2339B. See Humanitarian Law Project, 561 U.S. at 54 (Breyer, J., dissenting).
In Humanitarian Law Project, the plaintiff’s speech was deemed to present a
clear danger that justified its restriction under § 2339B. Id. at 39. The plaintiffs
sought to train members of terrorist groups to resolve disputes using humanitarian
and international law, teach members to petition the United Nations for aid, and
engage in political advocacy on behalf of the groups. Id. at 36-37. This Court held that
because this speech imparted “specific skills” to terrorist groups that they could use
to further their terroristic goals the speech could be proscribed. Id. at 37. This Court
was careful, however, to restrict the holding only to the facts presented in that case.
Id. at 39 (holding that “in prohibiting the particular forms of support the plaintiffs
seek to provide to foreign terrorist groups, § 2339B does not violate the freedom of
speech.”).
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Here, Ms. Borne’s intended speech did not present a clear, imminent danger
that would justify prosecution under § 2339B, nor could her speech be construed as
imparting specific skills that would enable Dixie Millions to pursue its terrorist goals.
Ms. Borne intended to discuss her career path with Mr. Allen and extract information
on how to best pursue her career. R. at 11. Further, Ms. Borne sought to convince
hacker groups like Dixie Millions not to “‘exploit bank, financial, and government
security flaws,’ because ‘that totally ruins people’s lives.’” R. at 17. This intended
speech does not present a clear, imminent danger—certainly not enough to justify
Ms. Borne’s prosecution and subsequent conviction under § 2339B. Dixie Millions
could not use the speech to further its terroristic goals. Because § 2339B, as applied
to Ms. Borne, violates her freedom of speech, her conviction should be overturned.
C.
Section 2339B is unconstitutionally vague as applied to Ms. Borne.
Because it was not clear that her intended conduct would violate the statute,
§ 2339B is vague as applied to Ms. Borne. The “void for vagueness doctrine” addresses
two legitimate Fifth Amendment due process concerns: “[F]irst, . . . regulated parties
should know what is required of them so they may act accordingly; second, precision
and guidance are necessary so that those enforcing the law do not act in an arbitrary
or discriminatory way.” F.C.C. v. Fox Television Stations, Inc., 132 S.Ct. 2307, 2317
(2012). Statutes that criminalize conduct and/or regulate conduct that is protected
under the First Amendment are scrutinized carefully under the vagueness doctrine.
See Hunt v. City of Los Angeles, 638 F.3d 703, 712 (9th Cir. 2011) (citing Holder v.
Humanitarian Law Project, 561 U.S. at 19; Maldonado v. Morales, 556 F.3d 1037,
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1045 (9th Cir. 2009)). A statute that is criminal must provide “sufficient definiteness
that ordinary people can understand what conduct is prohibited” and the statute
must be written “in a manner that does not encourage arbitrary and discriminatory
enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983). This Court established
that statutory interpretation “demands resolution of ambiguities in criminal statutes
in favor of the defendant.” Hughey v. United States, 495 U.S. 411, 422 (1990).
Therefore, should this Court find that the term “material support” is ambiguous as
applied to Ms. Borne, the rule of lenity requires that this Court resolve this issue in
her favor. Id.
This Court in Humanitarian Law Project found that § 2339B was not
unconstitutionally vague. 561 U.S. at 21. However, this Court was careful to decide
the issue of vagueness only as applied to the plaintiffs’ facts in that case. Id. at 21
(noting that “the scope of the material-support statute may not be clear in every
application.”). The conduct the plaintiffs sought to engage in fell within the “scope of
the terms ‘training’ and ‘expert advice or assistance.’” Id. See also U.S. v. Farhane,
634 F.3d 127, 140 (2d Cir. 2011) (holding that “no reasonable person could doubt that
training al Qaeda members in [deadly] martial arts was the sort of material support
proscribed by § 2339B.”); United States v. Mustafa, 406 Fed.Appx. 526, 530 (2d Cir.
2011) (holding that training jihadists to use guns and knives is clearly proscribed by
§ 2339B).
Here, was not clear that Ms. Borne intended conduct constituted a violation of
§ 2339B. Unlike the plaintiffs in Humanitarian Law Project, who sought to contribute
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money to foreign terrorist organizations, Ms. Borne’s intended conduct was meeting
with Mr. Allen to receive “advice on her career path.” R. at 11. She also planned to
show the cylinder code that she helped to create in order to demonstrate her computer
programming acumen. R. at 12. Meeting with a person who is a member of an FTO
and showing him computer code is not clearly proscribed by § 2339B. The cylinder
code does not implicate any of the enumerated terms within the definition of material
support. While the computer code is intangible property, Ms. Borne only planned to
show Mr. Allen the code; she did not intend to provide him the code to use on behalf
of Dixie Millions. Id. At a minimum, the terms of § 2339B did not put Ms. Borne on
notice that her intended conduct would violate the statute. Therefore, Ms. Borne’s
conviction should be overturned because the statute was unconstitutionally vague, as
applied to her.
CONCLUSION
Ms. Borne did not possess the subjective intent to create a destructive device
from the items in her luggage. She was also never in possession of the plans to print
the 3D gun that exploded when it was fired. Thus, her conviction under § 5845(f)(3)
should be overturned. Also Ms. Borne’s intended actions did not constitute material
support. Showing the cylinder code to Mr. Allen would not have provided Dixie
Millions material support. The government has also stretched the reach of § 2339B
by punishing Ms. Borne for exercising her First Amendment freedoms. Additionally,
§ 2339B is vague as applied to her conduct. Thus, her convictions should be
overturned. Therefore, the petitioner respectfully requests that this Court reverse the
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holding of the Fourteenth Circuit and remand to the case for further proceedings not
inconsistent with this decision.
Respectfully submitted,
Team #91
Attorneys for the Petitioner
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