Team 94
Docket No. C15-1359-1
In The
October Term, 2015
EMMALINE BORNE,
Petitioners,
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 94
Attorneys for Petitioner
November 23, 2015
QUESTIONS PRESENTED
1. A set of items are defined as components parts ready for conversion into a device defined
by 26 U.S.C § 5845(f)(3) only if they have a singular objective purpose as a destructive
device. If, however, the items have an innocent or legitimate social purpose, subjective
intent of the possessor is considered. Ms. Borne, packing for a pre-college study abroad
program, packed the typical necessities needed to attend school abroad for the summer.
Therefore, are toiletries, a plastic cylinder, or digital files components of a readily
assembled device defined by 26 U.S. C. § 5845(f)(3)?
2. Conviction under 18 U.S.C. § 2339B is improper unless a defendant knew of
an organization’s ties to terrorism and provided, or tried to provide, material
support to the organization. Ms. Borne hoped to meet, impress, and solicit career
advice from Clive Allen—a former National Security Agency consultant and retired Dixie
Millions member. Ms. Borne had never contacted Allen and was unaware the U.S. deemed
Dixie Millions a foreign terrorist organization prior to Allen’s retirement. Can Ms. Borne
be prosecuted under 18 U.S.C. § 2339B for hoping to demonstrate technological
competence to a person she had never contacted because of his former
organizational membership?
i
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........................................................................................... i
TABLE OF AUTHORITIES .......................................................................................... v
OPINIONS BELOW ...................................................................................................... 1
STATEMENT OF JURISDICTION .............................................................................. 1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 1
STATEMENT OF THE CASE ....................................................................................... 2
FACTUAL HISTORY ........................................................................................................... 2
PROCEDURAL HISTORY .................................................................................................... 8
SUMMARY OF THE ARGUMENT ............................................................................ 12
ARGUMENT AND AUTHORITIES ........................................................................... 15
I. THIS COURT SHOULD REVERSE THE FOURTEENTH CIRCUIT’S HOLDING
BECAUSE MS. BORNE DID NOT POSSESS A DESTRUCTIVE DEVICE AS
DEFINED BY 26 U.S.C. § 5845(F)(3) ........................................................................ 15
A. The majority of Circuit Courts implement a two-step analysis of
§ 5845(f)(3), examining objective and subjective intent.. ............................... 15
B. The government failed to prove beyond a reasonable doubt Ms.
Borne knowingly possessed a device defined by § 5845(f)(3) ......................... 17
C. Congressional intent shows mens rea should be read into §
5845(f)(3) .......................................................................................................... 18
1. Analysis of the construction of § 5845(f)(3) demonstrates that
both objective and subjective intent should be considered in
analysis of component parts devices ........................................................... 19
2. Legislative history shows Congress intended for mens rea to
be read into § 5845(f)(3) ............................................................................... 20
ii
D. The items Ms. Borne packed objectively are not components
designed to readily convert into a device defined by § 5845(f)(3) .................. 22
E. Analysis of Ms. Borne’s subjective intent further proves she was
not in possession of a device defined by § 5845(f)(3).. .................................. 26
F. Intent to create a device does not prove an individual possessed
a device defined by § 5845(f)(3) . ................................................................... 29
II. THIS COURT SHOULD REVERSE MS. BORNE’S CONVICTION UNDER 18
U.S.C. § 2339B BECAUSE THE FOURTEENTH CIRCUIT’S ERRONEOUS
RELIANCE UPON UNSUBSTANTIATED, HYPOTHETICAL POSSIBILITIES
RESULTED IN CRIMINALIZATION OF BENIGN AND CONSTITUTIONALLY
PROTECTED CONDUCT. .......................................................................................... 30
A. Ms. Borne did not violate 18 U.S.C. § 2339B. ............................................... 30
1. Ms. Borne did not have the required knowledge for a
conviction under 18 U.S.C § 2339B. ........................................................... 30
2. Ms. Borne did not provide, attempt to provide, or conspire to
provide a Foreign Terrorist Organization with material
support or resources. ................................................................................... 33
B. The hypothetical, improbable meeting that Ms. Borne’s
conviction was apparently—and erroneously—based upon
would have involved expression that is protected under the
First Amendment. .......................................................................................... 38
1. The First Amendment affords full protection to Ms. Borne’s
expressive speech. ....................................................................................... 39
2. Application of 18 U.S.C. § 2339B to Ms. Borne fails under
the strict scrutiny standard that this Court’s First
Amendment Jurisprudence requires.......................................................... 40
CONCLUSION ...................................................................................................... 46
APPENDIX ............................................................................................................ 47
iii
TABLE OF AUTHORITIES
Page(s)
UNITED STATES SUPREME COURT CASES:
Brandenburg v. Ohio,
395 U.S. 444 (1969) ................................................................................ 40, 44-45
Cohen v. California,
403 U.S. 15 (1971) ....................................................................................... 43, 45
Dennis v. United States,
341 U.S. 494 (1951) ........................................................................................... 18
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) ........................................................................................passim
Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston,
515 U.S. 557 (1995) ........................................................................................... 39
Morissette v. United States,
342 U.S. 246 (1952) ........................................................................................... 21
Nat'l Socialist Party of Am. v. Vill. of Skokie,
432 U.S. 43 (1977) ............................................................................................. 39
Pinkerton v. United States,
328 U.S. 640 (1946) ........................................................................................... 33
Roth v. United States,
354 U.S. 476 (1957) ...................................................................................... 39-40
Spence v. State of Wash.,
418 U.S. 405 (1974) ................................................................................ 42, 44-45
Staples v. United States,
511 U.S. 600 (1993) ................................................................................ 17-19, 21
Tinker v. Des Moines Indep. Cmty. Sch. Dist.,
393 U.S. 503 (1969) ........................................................................................... 39
United States v. Balint,
258 U.S. 250 (1922) ........................................................................................... 19
iv
United States v. Playboy Entm't Grp., Inc.,
529 U.S. 803 (2000) ........................................................................................... 38
United States v. Resendiz-Ponce,
549 U.S. 102 (2007) ........................................................................................... 33
United States v. United States Gypsum Co.,
438 U.S. 422 (1978) ........................................................................................... 19
UNITED STATES COURT OF APPEALS CASES:
Junger v. Daley,
209 F.3d 481 (6th Cir. 2000) ........................................................................ 39-40
United States v. Al Kassar,
660 F.3d 108 (2d Cir. 2011) .............................................................................. 33
United States v. Farhane,
634 F.3d 127 (2d Cir. 2011) .............................................................................. 34
United States v. Fredman,
833 F.2d 837 (9th Cir. 1987) ............................................................................. 26
United States v. Hammadi,
737 F.3d 1043 (6th Cir. 2013) ...................................................................... 33-34
United States v. Hammond,
371 F.3d 776 (11th Cir. 2004) ........................................................................... 17
United States v. Johnson,
152 F.2d 618 (7th Cir. 1998) ......................................................................passim
United States v. Markley,
567 F.2d 523 (1st Cir. 1977) ....................................................................... 16, 26
United States v. Mehanna,
735 F.3d 32 (1st Cir. 2013) .................................................................... 33-34, 37
United States v. Morningstar,
456 F.2d 278 (4th Cir. 1972) ............................................................................. 16
United States v. Neal,
692 F.2d 1296 (10th Cir. 1982) ......................................................................... 16
v
United States v. Oba,
448 F.2d 892 (9th Cir. 1997) ................................................................... 6, 16, 20
United States v. Peterson,
465 F.2d 806 (9th Cir. 1973) ........................................................................ 23-24
United States v. Posnjak,
457 F.2d 1110 (2d Cir. 1972) .....................................................................passim
United States v. Price,
877 F.2d 344 (5th Cir. 1989) ........................................................................ 23-25
United States v. Ragusa,
664 F.2d 696 (8th Cir. 1981) ............................................................................. 16
United States v. Rushcamp,
526 F.2d 1380 (6th Cir. 1975) ...................................................................... 9, 16
United States v. Tankersley,
492 F.2d 962 (7th Cir. 1974) ........................................................................ 22-23
United States v. Urban,
140 F.3d 229 (3d Cir. 1998) .............................................................................. 16
Universal City Studios, Inc. v. Corley,
273 F.3d 429 (2d Cir. 2001) ......................................................................... 39-40
UNITED STATES DISTRICT COURT CASES:
United States v. Davis,
313 F.Supp. 710 (D. Conn. 1970) ...................................................................... 19
FEDERAL STATUTES:
28 U.S.C. § 1254 (2015) ................................................................................................. 1
28 U.S.C. § 1331 (2015) ................................................................................................. 1
26 U.S.C. § 5845(f) (2015) .....................................................................................passim
26 U.S.C. § 5861 (2015) ............................................................................................... 17
18 U.S.C. § 2339A (2015) ............................................................................................. 33
vi
18 U.S.C. § 2339B (2015) ......................................................................................passim
8 U.S.C § 1182 (2015) .................................................................................................. 31
CONSTITUTIONAL PROVISIONS:
U.S. Const. amend. I .............................................................................................................. passim
U.S. Const. amend. V.....................................................................................................1, 11, 41, 43
vii
OPINIONS BELOW
The opinion of the United States Court of Appeals for the Fourteenth Circuit, No. 15-1359
is unreported and set out in the record. (R. at 1-27) The opinion of the United States District Court
for the South East New Tejas District is unreported.
STATEMENT OF JURISDICTION
The judgment of the Fourteenth Circuit Court of Appeals was entered on October 1, 2015.
This Court has appellate jurisdiction over this Petition pursuant to the grant of writ of certiorari as
required by 28 U.S.C. § 1254(1) (2015). This Court has subject matter jurisdiction pursuant to 28
U.S.C. § 1331 (2015).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
First, this case involves the First Amendment of the United States Constitution, which
provides: “Congress shall make no law . . . abridging the freedom of speech . . . .” U.S. Const.
amend. I. Second, this case involves the Fifth Amendment which provides, “No person shall . . .
be deprived of life, liberty, or property, without due process of law . . . .” U.S. Const. amend. V.
Third, this case involves a criminal prosecution under a provision of the National Firearms Act—
26 U.S.C. § 5845(f)(3)—defining destructive devices. Finally, this case involves a criminal
prosecution under 18 U.S.C. § 2339B. These statutes are reproduced in the appendices.
1
STATEMENT OF THE CASE
I.
FACTUAL HISTORY
Application to Technical Promise. In her senior year of high school,
Emmaline Borne (Ms. Borne) was selected for a once in a lifetime opportunity to
participate in a pre-college study abroad program called “Technical Promise” at the
University of Misthallery in Azran. (R. at 2.) The program’s purpose was to encourage
students to study science, technology, engineering, and mathematics, while providing
incoming freshman at New Tejas State University an opportunity to receive college
credit for participation. (R. at 2-3.) Adalida Ascot (Mrs. Ascot), physics teacher and
alumnus of Technical Promise, encouraged Ms. Borne, and her classmate Fiona
Triton (Ms. Triton), to apply, and guided them throughout the process. (R. at 2-3.)
Ms. Borne wanted to participate in the program because she loved playing
computer games, and aspired to become a proficient computer programmer in order
to develop her own computer game. (R. at 3.)
Because of their mutual love for computer games, particularly "Wars of Masquerade"
(WOM), Ms. Borne became better acquainted with Mrs. Ascot. (R. at 3.)
In order to become proficient in C++ programming to be better prepared for
college and her career, Ms. Borne met with Mrs. Ascot for tutoring sessions between
November 2011 and early February 2012. (R. at 4.) In addition to programming, they
occasionally discussed “computer games, internet culture, and possible future career
opportunities for Ms. Borne” during their tutoring sessions. (R. at 4.)
2
Dixie Millions Reveals its "Millions." Clive Allen (Mr. Allen), a hired
consultant for the National Security Agency (NSA), specialized “in database design
and management.” (R. at 5.) Mr. Allen was a former member of an organization
known as Dixie Millions. (R. at 5.) Dixie Millions was an internet based activist group
that was allegedly responsible for exposing security flaws in computer networks in
both the public and private sector. (R. at 5.) On November 22, 2011, Mr. Allen
released millions of documents he obtained through his position with the NSA and
publicly revealed his membership in Dixie Millions. (R. at 5.) Dixie Millions was
declared a Foreign Terrorist Organization (FTO) on December 30, 2011 by the United
States Secretary of State. (R. at 5.) Dixie Millions was allegedly responsible for
several other document dumps in the months that followed. (R. at 5.). Mr. Allen was
not personally implicated for any of these subsequent document dumps. (R. at 5-6.)
On March 20, 2012, Mr. Allen finally publicly announced his retirement and his
intent to live out his days in Azran. (R. at 6.) The Azran government granted Mr.
Allen asylum, where allegedly he currently resides. (R. at 6.)
Experimentation with 3D Printing. Hershel Triton (Mr. Triton), purchased
a do-it-yourself 3D printing kit in order to create a better plastic filament. (R. at 6.)
One night, while the girls where having a sleepover at the Triton house, Ms. Borne
inquired about the printer. (R. at 7.) Mr. Triton revealed to Ms. Borne he was having
software issues, and she offered her help in exchange for being able to use the printer
to print a 3D model of a videogame character. (R. at 7.)
3
Upon analyzing his software, Ms. Borne discovered an error that caused the
3D printer to print imperfect curves. (R. at 7.) During a tutoring session, Ms. Borne
showed the curve code to Mrs. Ascot, and Mrs. Ascot offered her assistance. (R. at 7.)
During their meeting, Ms. Borne and Mrs. Ascot casually discussed Dixie Millions.
(R. at 8.) Mrs. Ascot expressed her opinion that an internet activist “should never
harm innocent individuals” and should only use their skills to expose “flaws and
frauds.” (R. at 8.)
Mrs. Ascot expressed her opinion that Dixie Millions was a
benevolent organization to Ms. Borne. (R. at 8.) Mrs. Ascot told Ms. Borne she needed
to take the curve code home with her for the weekend in order to finish it, and Ms.
Borne consented. (R. at 8.) Mrs. Ascot perfected the code and returned it to Ms. Born.
(R. at 8.)
Ms. Borne returned to the Triton household with the perfected curve code. (R.
at 8-9.) The code then printed correctly. (R. at 9.) Subsequently, Ms. Borne suggested
they print a three dimensional cylinder to demonstrate the code’s effectiveness. (R. at
9.) The cylinder, six and one-half inches tall and one and a half inch in diameter, took
twelve hours to print, and printed successfully. (R. at 9-10.) Mr. Triton allowed Ms.
Borne to take the cylinder, and she left it attached to its base because she thought it
looked like a trophy. (R. at 10.)
Prior to testing the perfected code, Mr. Triton, unbeknownst to Ms. Borne,
discovered a 3D printing design for handguns, and downloaded its schematics onto
his gold USB drive. (R. at 9.) Because of his professional experience, Mr. Triton
believed that a plastic filament capable of withstanding the intense heat generated
4
by a gun discharge would be lucrative and facilitate his early retirement. (R. at 9.)
Mr. Triton and Ms. Triton worked on the plastic formula at various times before the
girls were to depart for their study abroad program. (R. at 10-11.)
Contrastingly, Ms. Borne supported gun control, particularly after one of her
classmates died in a gun-related incident, and she expressed her wish for guns to
effectively disappear on her Twitter account. (R. at 17.) Ms. Borne desired technology
to be used for good and the betterment of society, and encouraged internet activists
to refrain from engaging in harmful conduct. (R. at 17.) She did not want to se these
groups “exploit bank, financial, and government security flaws” believing “that totally
ruined people’s lives.” (R. at 17.)
Packing for Technical Promise. As Ms. Borne’s interest in benevolent
internet activism grew, she became increasingly interested in Mr. Allen. (R. at 11.)
Through her research, she learned of Mr. Allen’s presence in Azran and thought it
would be beneficial to meet him, hoping he would provide her guidance and advice on
her career path. (R. at 11.) Ms. Borne used the Darknet to create a spreadsheet of all
of the locations Mr. Allen had allegedly been seen and determined Mr. Allen would
likely be at a café on the University of Misthallery campus on June 5, 2012. (R. at 1112.) Ms. Borne programmed a calendar event into her smartphone stating “Meet Clive
Allen at Café” for June 5, 2012, so that she would not forget to look for him. (R. at
11.) She then created a picture of what she thought the Mr. Allen might look like. (R.
at 12.) She hoped to show Mr. Allen her curve code and 3D printed cylinder in order
to demonstrate her competence as a computer programmer. (R. at 12.)
5
During their final meeting, Mrs. Ascot encouraged Ms. Borne and Ms. Triton
to take any projects they were working on to Technical Promise with them, and seek
advice from the faculty. (R. at 9-11.) Ms. Triton—against her father’s wishes—
downloaded the plastic filament formula that she had been helping her father perfect
onto her USB drive, shaped like a famous cartoon robot, in order to seek assistance
from the University of Misthallery faculty. (R. at 10-11.)
The girls packed for their summer on the day before their flight to Azran. (R.
at 12.) Ms. Triton packed her USB drive, shaped like a famous cartoon robot,
containing her father’s plastic filament formula on it, her clothing, and toiletries. (R.
at 27.) Ms. Borne used her family’s duffle bag, which was used primarily for family
camping trips, as her travel luggage. (R. at 12.) Inside the duffle bag was a pack of
matches kept in a tiny, waterproof interior pocket, which her family stored for
camping emergencies. (R. at 12.) Ms. Borne packed her clothing, the cylinder, her
personal USB drive containing the curve code, and toiletries, which included an
eleven ounce can of hairspray in order to “keep her hair stylish in the higher humidity
of Azran.” (R. at 12.)
The arrest. On June 4, 2012, Mr. Triton drove the two girls to the airport, and
played music from his gold USB drive. Mr. Triton planned on giving his USB drive to
the girls as a going away gift for their trip. (R. at 13-14.) Mr. Triton was pulled over
by a Harrisburg Police Officer Smith after a traffic infraction. (R. at 13.) The police
officer discovered a warrant was issued for Mr. Triton’s arrest because Mr. Triton’s
attorney had failed to properly handle a previous traffic infraction. (R. at 14.) Afraid
6
of missing their flight, Ms. Borne and Ms. Triton began to sob. (R. at 14.) Officer
Smith agreed to give Ms. Borne and Ms. Triton a special escort to the airport in order
to ensure a timely departure. (R. at 14.)
While talking with the girls, the officer heard a chirping noise from Ms. Borne’s
cell phone and saw that the screen read “Meet with Clive Allen at Café.” (R. at 15.)
Officer Smith had recently read a FBI report stating that Mr. Allen’s accomplice was
suspected to be living in the area, and immediately Mirandized the girls and arrested
them for suspicion for aiding and abetting a known fugitive. (R. at 15.)
The Harrisburg Police searched the possessions of Ms. Borne, Ms. Triton, and
Mr. Triton in the car, and found several items. (R. at 15.) In Ms. Borne’s luggage, the
officers found the hairspray, matches, 3D printed cylinder, and her purple USB drive
which contained the curve code, the spreadsheet tracking Mr. Allen’s whereabouts,
and the picture Ms. Borne created of Mr. Allen. (R. at 15.) In Ms. Triton’s luggage
they found her cartoon robot shaped USB drive, containing Mr. Triton’s formula. (R.
at 15.) Lastly, although he alleges to have deleted the schematics, the officers
discovered the 3D gun schematics on Mr. Triton’s gold USB. (R. at 15.)
The FBI began to investigate the girls’ personal relationships, and discovered
Mrs. Ascot immediately quit her job, and her and husband could not be found. (R. at
16.) Upon further investigation, the FBI became almost certain Mrs. Ascot was the
“Dixie” of Dixie Millions, and wanted to know more information. Id. Unlike Mr. Triton
and Ms. Triton, Ms. Borne declined to assist in the investigation of Mrs. Ascot, stating
7
they were both innocent. (R. at 16.) Ms. Borne, refused bail so her trial could progress
quicker through the South East New Tejas District Court Docket. (R. at 16.)
II.
PROCEDURAL HISTORY
Trial of Emmaline Borne. During Ms. Borne’s trial, the prosecution used
Ms. Borne’s internet searches regarding Dixie Millions as evidence against her. The
prosecution’s FBI witnesses also testified that Ms. Borne searched several other
internet activist group’s websites, and Ms. Borne expressed her desire to convince
these groups to stop exploiting private and public financial and security flaws and,
instead, focus on “malicious . . . lies that hurt people.” (R. at 17.)
Ms. Borne was questioned about her relationship with Ms. Ascot during trial,
and she stated Mrs. Ascot never encouraged her to meet with Mr. Allen. (R. at 17.)
Further, she explained Ms. Ascot never claimed membership in Dixie Millions. (R. at
17.)
An FBI agent testified that tests performed pursuant to the investigation
revealed Mr. Triton’s plastic filament formula, combined with his 3D gun schematics,
created a faulty device which would explode when fired. (R. at 18.) The FBI agent
further testified the contents of the girls’ luggage, could be used to make a bomb. (R.
at 18.)
Ms. Borne’s trial concluded, and she was convicted under 26 U.S.C. §
5845(f)(3), and sentenced to twelve months in prison, and 18 U.S.C. § 2339B, and
sentenced to fifteen years in prison. (R. at 18.)
8
Opinion of the Fourteenth Circuit. Ms. Borne appealed her case to the
Fourteenth Circuit, who upheld her conviction under both statutes.
Application of 26 U.S.C. § 5845(f)(3). The Fourteenth Circuit held that a
mixed standard under United States v. Rushcamp, combining both the objective and
subjective intent of the possessor, should be used to interpret § 5845(f)(3). (R. at 19.)
Upon analysis of the objective nature of the 3D gun plans, the hairspray, and the
plastic filament, the Court found that although the items were objectively harmless,
they needed to look at Ms. Borne’s subjective intent to determine her innocence. (R.
at 19.)
The Fourteenth Circuit determined Ms. Borne’s motivations for possession of
these items, to gain Mr. Allen’s approval, did not prove her innocence. (R. at 20.)
Instead, they concluded that with the heightened threat of terrorism, and the
frequency of homemade weapons, Ms. Borne intended to use the items as a
destructive device. (R. at 20.) The Fourteenth Circuit relied upon the fact that Dixie
Millions is a designated foreign terrorist organization, and the fact that she
sympathized with them, to justify the “heightened scrutiny of her actions.” (R. at 20.)
The Fourteenth Circuit further explained their decision by asserting the
“matches, the plastic cylinder, and the hairspray” were components of a pipe bomb,
and the 3D gun schematics and plastic formula were a completed bomb design. (R. at
20.) Therefore, the items were ready for conversion into a destructive device. (R. at
20.)
9
The dissenting opinion disagreed with the analysis of the majority, believing
that they should implement the objective analysis of United States v. Posnjak, and
relied on United States v. Johnson for their interpretation of the application of §
5845(f)(3). (R. at 24.) The dissent argued the items were not disassembled items of a
weapon as listed under § 5845(f)(1) and (2), therefore, Ms. Borne is not guilty. (R. at
24-25.) The Dissent further commented on Ms. Borne’s subjective intent, stating she
was “simply a young woman who was likely manipulated by a person she trusted and
is, at worst, a misguided, mixed-up teenager with a case of hero worship.” (R. at 25.)
The opinion concluded by asserting that fear of what someone may do in the future
cannot dictate someone’s punishment. (R. at 25.)
Application of 18 U.S.C. § 2339B. Although Ms. Borne is not a member of
Dixie Millions, the majority found that her activities were intended to further the
organization’s goals. (R. at 22.) Because Mrs. Ascot was allegedly Dixie, she wanted
to show Mr. Allen her curve code, Ms. Triton possessed the plastic filament formula,
and Mr. Triton’s 3D gun schematics could help the organization profit, the court
concluded that she had sought to further the mission of Dixie Millions. (R. at 22.)
Further, the Fourteenth Circuit did not believe that Ms. Borne was protected
by the First Amendment, claiming she gave material support because Dixie Millions
would have benefited from her knowledge. (R. at 23.) Comparing Ms. Borne to the
plaintiffs in Holder v. Humanitarian Law Project, the Fourteenth Circuit determined
that despite the general accessibility of the information, Ms. Borne could have
provided Dixie Millions material support by providing them with any information,
10
whether innocent or intentional, which would then further their mission. (R. at 23.)
Even though the majority of the Fourteenth Circuit “feels sympathy for Ms. Borne”
and “acknowledges” the extremeness of her punishment, they did not feel comfortable
reversing the lower court’s holding because they concluded that the facts demonstrate
she “knowingly” intended to provide resources to Dixie Millions. (R. at 24.)
The dissenting opinion stated that it was “absurd” for the majority to make
unsupported claims, when the most the court could find was that she intended to
meet with Mr. Allen to learn more about him. (R. at 25.) Exercising immature
judgment should not entail guilt and extreme prison sentences. (R. at 25.) The
Constitution protects an individual’s rights to engage in free speech without
government intrusion and to freely acquire knowledge (R. at 26.) The opinion argued
that it is illogical to punish an individual for their prospective behavior. (R. at 26.)
Further, the opinion desired a full Fifth Amendment analysis. (R. at 26.)
Lastly, the dissent stated the majority incorrectly treated Mr. Allen and Dixie
Millions as the same entity and, instead, should have treated them separately in their
analysis of § 2339B. (R. at 27.) The dissent expressed that the Fourteenth Circuit
should have at minimum remanded the case to the lower court for “additional fact
finding” believed that a new trial properly interpreting the statutes would have been
best. (R. at 27.)
11
Summary of the Argument
This Court should reverse Ms. Borne's convictions because the Fourteenth
Circuit fundamentally misapplied the provisions of 26 U.S.C. § 5845(f)(3) and 18
U.S.C. § 2339B.
Ms. Borne was erroneously convicted under § 5845(f)(3) because the
Fourteenth Circuit failed to properly analyze the objective nature of the items Ms.
Borne packed for her study abroad trip, as well as Ms. Borne's personal reasoning for
packing the items for her summer program. When determining whether separate and
distinct items can be readily converted into a destructive device, courts typically
engaged in a two-step process.
First, courts look at the objective nature of the individual components, and if
one can prove beyond a reasonable doubt that the sole purpose of the items are for
ready conversion into a destructive device as described in § 5845(f)(1)-(2), the analysis
will end. If there is ambiguity of whether items have a destructive or benign purpose,
subjective intent is to be considered to determine if there is legitimate social or benign
purpose for possession of said items.
Objectively, the items Ms. Borne possessed did not fall within the definition of
a destructive device, because possession of hair spray, a cylinder, and a curve code do
not combine to create any of the devices listed in § 5845(f)(1)-(2). Even if Ms. Borne’s
subjective intent is considered, Borne innocently possessed items with clear benign
and social purposes, further proving she was not in possession of a destructive device.
Further, items possessed for the potential creation of a device defined by § 5845(f)(3)
12
do not fall within the statute because § 5845(f)(3) only addresses items which are
readily converted into a destructive device. Therefore, her conviction should be
overturned because there is no proof beyond a reasonable doubt that she violated §
5845(f)(3) for possession of components for ready conversion into a destructive device.
Ms. Borne was also erroneously convicted under 18 U.S.C. § 2339B. Conviction
under 18 U.S.C. § 2339B is improper unless a defendant 1) has knowledge of an
organization’s ties to terrorism and 2) provides, attempts to provide, or conspires to
provide the organization with material support or resources. The record
demonstrates that Ms. Borne did not satisfy either of the statutory elements required
for conviction under the statute. Ms. Borne did not know that Dixie Millions was a
designated foreign terrorist organization, and, because Dixie Millions did not engage
in terrorism as defined in the statute, she could not have known of any organizational
ties to terrorism. Further, Ms. Borne did not provide, attempt to provide, or conspire
to provide a foreign terrorist organization with material support or resources. She
merely hoped to show—a retired—Mr. Allen her computer code and benign cylinder
in order to demonstrate competency in computer programming.
Additionally, Ms. Borne’s constitutionally protected conduct requires reversing
her conviction under 18 U.S.C. § 2339B. This Court’s First Amendment jurisprudence
indicates that computer code is a form of expression that requires reasonable First
Amendment protection, and the lower courts have begun to correctly adopt this
position. This Court stated that the statute regulates speech based on its content, and
its application must be analyzed under strict scrutiny. Preventing a bright, young
13
student from attending an advanced study program based on hypothetical results
that may follow an improbable meeting with a retired internet activist is not narrowly
tailored to further the government’s compelling interest in preventing terrorism.
Thus, § 2339B is unconstitutional as applied to Ms. Borne in this case, and this Court
should reverse her conviction.
14
ARGUMENT AND AUTHORITIES
I.
THIS COURT SHOULD REVERSE THE FOURTEENTH CIRCUIT'S HOLDING BECAUSE MS.
BORNE DID NOT POSSESS A DESTRUCTIVE DEVICE AS DEFINED BY 26 U.S.C. §
5845(F)(3).
United States federal law states that a destructive device can be a “combination of parts
either designed or intended for use in converting any device into a destructive device as defined in
subparagraphs (1) and (2) and from which a destructive device may be readily assembled.” 26
U.S.C § 5845(f)(3) (2015). When engaging in a component parts analysis, this court should follow
the majority of the circuits, and engage in a two-step process when analyzing the intent behind
possession of component parts under § 5845(f)(3).
First, this Court should examine the objective nature of the items. Unless the items are
clearly designed for the ready conversion to construct a destructive device, and there is no
legitimate social purpose for their possession, may subjective intent be irrelevant. United States v.
Johnson, 152 F.3d 618, 628 (7th Cir. 1998). When there is ambiguity as to whether the component
parts have either a “destructive” or “benign” use, this Court should examine the subjective intent
of the possessor, engaging in the second step of the analysis. United States v. Posnjak, 457 F.2d
1110, 1120 (2d. Cir. 1972).
Therefore, this Court should reverse the decision of the Fourteenth Circuit because they
failed to properly apply the two-step analysis for component parts under § 5845(f)(3).
A. The Majority of the Circuit Courts implement a two-step analysis of § 5845(f)(3),
examining objective and subjective intent.
Currently circuits are split into three different camps on the appropriate test to discern
destructive devices under § 5845(f): a purely subjective analysis, an objective analysis with a
caveat allowing for subjective intent for component parts, or a mixture of both the subjective and
15
objective intent analysis. Compare United States v. Oba, 448 F.2d 892 (9th Cir. 1971), with
Posnjak, 457 F.2d at 110, and Johnson, 152 F.3d at 624.
The purely subjective test is implemented in the Ninth Circuit, and focuses
primarily on the intent and admitted purpose of the device. See generally Oba, 448
F.2d 892.
Second, the objective test, imposes strict liability on defendants in possession
of potential destructive devices, focusing on a device’s potential use and construction.
See Posnjak, 457 F.2d at 1110; see also United States v. Markley, 567 F.2d 523, 527
(1st Cir. 1977); United States v. Urban, 140 F.3d 229, 234 (3d Cir. 1998); United States
v. Rushcamp, 526 F.2d 1380, 1382 (6th Cir. 1975); United States v. Ragusa, 664 F.2d
696, 700 (8th Cir. 1981). However, subjective intent of the defendant should be
considered if ambiguity exists as to whether the components could be converted into
a destructive device. See Posnjak, 457 F.2d at 1119; see also Urban, 140 F.3d at 234.
Third, the “mixed standard” holds that intent is irrelevant when it is evident
a device’s purpose is only for destructive use, then it is automatically categorized as
a destructive device. Johnson, 152 F.3d at 624. Intent is relevant, however, when the
defendant possesses individual parts, which may have either a legitimate or
destructive use. Id; see also United States v. Morningstar, 456 F.2d 278, 281 (4th Cir.
1972); United States v. Neal, 692 F.2d 1296, 1303-04 (10th Cir. 1982). This standard
is identical to the caveat of the objective standard allowing for the possessor’s intent
to be scrutinized. Johnson, 152 F.3d at 624; Posnjak, 457 F.2d at 1119.
Although a circuit split exists in regards to the overall interpretation of the intent in §
5845(f), there is general consensus that a mixed analysis of both the objective and subjective intent
16
should be applied specifically to § 5845(f)(3). See generally, Posnjak, 457 F.2d at 1119; Johnson,
152 F.3d at 624.
B. The government failed to prove beyond a reasonable doubt Ms. Borne knowingly
possessed a device defined by § 5845(f)(3).
This Court has previously held that mens rea is to be read into the National
Firearms Act, even if it is not explicitly stated. Staples v. United States, 511 U.S. 600,
619 (1994). In Staples, defendant was charged with violating § 5861(d) of the National
Firearms Act for possession of an unregistered machinegun. Id. at 603. Defendant
claimed he was unaware the device fired automatically, arguing his lack of knowledge
of this feature protected him from criminal liability. Id. This Court agreed, holding
that 26 U.S.C. § 5861(d) does not impose strict liability, thus the common rule of
“favoring mens rea” should be applied. Staples, 511 U.S. at 617. Additionally, this
Court held that just as proof of knowledge was required for defendant to be charged
for unauthorized possession of food stamps, a gun can similarly be held in complete
innocence. Id. at 611, 617. Thus, the Staples Court held the government should have
been required to prove the defendant knew his rifle had characteristics of a machine
gun beyond a reasonable doubt. Id. at 600.
Specifically, in regards to § 5845(f), lower Courts have held the government
must provide enough evidence to prove a device satisfies § 5845(f) beyond a
reasonable doubt. See, e.g, United States v. Hammond, 371 F.3d 776 (11th Cir. 2004).
In Hammond, defendant possessed a cardboard tube filled with nine ounces of
explosive powders, dipped in candle wax, and attached to a fuse. Id. at 778. Because
the government did not possess enough evidence to prove beyond a reasonable doubt
17
the defendant’s device was designed as a weapon, the Eleventh Circuit reversed the
conviction, and defendant was acquitted. Id. at 782.
Here, the record does not support the conclusion that Ms. Borne knew that she
possessed component parts of a destructive device. The only items Ms. Borne knowingly
possessed and packed in her duffle bag were the hairspray, the cylinder, and the USB containing
the curve code. (R. at 12.) The record does not state that Ms. Borne knowingly possessed or packed
the matches in her bag, because although she grabbed the family camping duffle bag, there is no
indication she knew matches were inside of the bag. (R. at 12-13.) The “small pack” of matches
were hidden inside a “small . . . interior pocket of the duffle bag;” thus causing Ms. Borne to be
unaware the matches were present in her bag. (R. at 12.) Further, Ms. Borne had no knowledge
that Mr. Triton downloaded the 3D gun schematics onto the gold USB drive, and there is no
evidence in the record that Mr. Triton ever transferred possession of the USB drive to Ms. Borne.
Therefore, the lower courts erred by failing to prove beyond a reasonable doubt that Ms. Borne
knowingly possessed the requisite items and intended for conversion into a destructive device.
Thus, this Court should reverse the decision of the Fourteenth Circuit.
C. Congressional intent shows mens rea should be read into § 5845(f)(3).
Silence in a statute regarding the required mens rea for conviction does not
mean Congress “intended to dispense with a conventional mens rea element.” Staples,
511 U.S. at 605. If this were true, defendants would be required to “know the facts
that make . . . [their] conduct illegal.” Id. Mens rea “is the rule rather than the
exception,” of American criminal jurisprudence, and crimes without mens rea are
disfavored. Id. at 606; Dennis v. United States, 341 U.S. 494, 500 (1951).
18
Public welfare statutes are statutes which have a public policy or regulatory purpose when
the “emphasis of the statute is evidently upon achievement of some social betterment rather than
the punishment of the crimes.” United States v. Balint, 258 U.S. 250, 252 (1922). Public welfare
statutes, however, are rarely implemented and have only been recognized by this Court in limited
circumstances because they do not require mens rea. United States v. U.S. Gypsum Co., 438 U.S.
422, 437 (1978). Thus, to determine if mens rea should be read into a statute, courts must analyze
both the language of the statute and the congressional intent behind its creation. Staples, 511 U.S.
at 605; Balint, 258 U.S. at 253.
When analyzing § 5845(f)(3), it is evident that mens rea should be read into it
based off the statute’s construction and the intent of Congress. Therefore, this Court
should consider which items Ms. Borne’s knowingly packed for her trip, and that she
was unaware of the contents on Mr. Triton’s gold USB drive.
1. Analysis of the construction of § 5845(f)(3) demonstrates both objective and
subjective intent should be considered in analysis of component parts devices.
Analysis of the language and construction of § 5845(f)(3) reveals Congress
intentionally created a separate analysis for component parts of an alleged
destructive device. The context of the term “combination” in the statute is indicative
that Congress intended combination to mean “an association of the components of a
destructive device, at the same time and place, capable of being converted into a
destructive device.” United States v. Davis, 313 F.Supp. 710, 714 (D. Conn. 1970).
Congress did not intend for combination to be defined as an “actual union of parts in
an assembled device,” but rather as separate, unattached items. Id.
19
Furthermore, in § 5845(f)(3), the words “designed” and “intended” are separated by the
word “or.” Johnson, 152 F. 3d at 624. The language in this statute is constructed to “suggest” that
because the terms are “separated by a disjunctive [they] are to be given separate meanings.” Id.
Thus, § 5845(f)(3) should be interpreted to mean that components of a device may be converted
into a destructive device, “either because of ‘design’ or because of ‘intent.’” Johnson, 152 F.3d at
624.
Therefore, based on the language of § 5845(f)(3), this Court should analyze the subjective
intent of the defendant when it is ambiguous that component parts are a destructive device. Thus,
Ms. Borne’s subjective intent should be analyzed.
2. Legislative history shows Congress intended for mens rea to be read into § 5845(f)(3).
Careful analysis of the legislative history of the National Firearms Act, reveals Congress
intended to prevent the unlawful use of military-grade and gangster style weapons. According to
Senate reports, the type of destructive devices the National Firearms Act intended to cover were
“military-type weapons—mines, grenades, bombs, and large caliber weapons, such as bazookas,
mortars, and anti-tank guns.” Posnjak, 457 F.2d at 1115. Congress also intended for § 5845(f) to
target “gangster type weapons,” adding in provisions to incorporate these type of weapons prior to
passing the statute. Id. Overall, Congress’s central concern was with “clearly identifiable weapons
which were the cause of increasing violent crimes” that had “no lawful” use. Id.
This Court should read a subjective intent into § 5845(f)(3) because analysis of
the intent of the possessor aligns with the congressional purpose of the statute. The
general Congressional purpose of the statute was to apply “only to objectively
identifiable gangster and military-type weapons.” Oba, 448 F.2d at 903 n.12
(Browning, J., dissenting). Disassembled parts such as “a glass container, a strip of
20
cloth, and gasoline,” however, do not on their face “signal the presence of an
unassembled Molotov cocktail.” Id. Thus, the defendant’s intention is critical in order
to determine whether the disassembled parts fall within the military or gangsterstyle weapons described in subparagraphs (1) or (2). Id.
The only time subjective intent is irrelevant when analyzing component parts is if the “parts
themselves are designed to convert a device into a ‘destructive device.'” Id. For example, the parts
of a “fragmentation grenade constitutes a 'destructive device' without proof” of the possessor’s
intent to assemble the device. Id. Therefore, when analyzing the congressional history of the
National Firearms Act, and specifically § 5845(f), it is evident that a subjective intent may be used
to determine whether a combination of parts is a destructive device within subsection (3) of the
statute.
Additionally, analysis of the penalty attached with a statute is further evidence of
congressional intent for mens rea to be read into a statute. Punishments where the
“penalties . . . are relatively small, and conviction does no grave damage to an
offender’s reputation” are associated with public welfare crimes. Staples, 511 U.S. at
617 (citing Morissette v. United States, 342 U.S. 246, 255 (1952)). Thus, the types of
punishments given for public welfare offenses are typically “fines or short jail time,
not imprisonment in the state penitentiary.”Id. at 616.
Because Ms. Borne was charged with a federal prison sentence for twelve
months specifically under § 5845(f)(3), and received fifteen years for charges under §
2339B, she clearly did not receive a light sentence. (R. at 18.) Rather, she received a
punishment that will do damage to her reputation, and she will spend a significant
21
amount of her life serving it. Therefore, this further provides evidence that §
5845(f)(3) is not a strict liability crime and mens rea should be read into the statute.
Because Congressional intent reveals that mens rea should be read into the
statute, this Court should read both objective and subjective intent into § 5845(f)(3),
because conviction under this statute is not a strict liability offense.
D. The items Ms. Borne packed objectively are not components designed to readily
convert into a device defined by § 5845(f)(3).
Only when items objectively have characteristics that show a singular destructive purpose,
are they categorized as components of a readily convertible destructive device without analyzing
the possessor's intent. Johnson, 152 F.3d at 626. In Johnson, defendant was charged with
possessing components of a destructive device because he placed “devices with the objective
characteristics of bombs in a department store.” Id. at 618, 631. To determine objectively if
individual items are components of a destructive device, the “objective design of the device or
component parts indicates that the object may only be used as a weapon, i.e., for no legitimate
social or commercial purpose.” Id. at 628. Only then, is subjective intent irrelevant. Id.
Several lower courts have been cautious to determine that a combination of
items is objectively designed for conversion into a destructive device, and instead
engage in analysis under the second prong of the test. See, e.g., United States v.
Tankersley, 492 F.2d 962 (7th Cir. 1974). For example, in Tankersley, defendants
possessed a bottle, a firecracker, tape, and paint remover. Id. at 965. Although the
components could easily be converted into a Molotov cocktail, the subjective intent of
the defendants needed to be analyzed because there was social utility to the
individual components. Id. at 966.
22
The Ninth Circuit provides a similar example. See United States v. Peterson,
475 F.2d 806 (9th Cir. 1973). In Peterson, defendants were in possession of “fuse flare
segments, black powder, cotton rope and binding tape,” referred to by the Ninth
Circuit as a “common street do-it yourself” type of weapon which could be converted
into a Molotov cocktail. Id. at 811. Because of the “friendly” nature of the items, the
Ninth Circuit determined that the intent of the defendants needed to be analyzed to
determine whether the components could be readily assembled into a destructive
device. Id. Therefore, for a combination of items to objectively be a destructive device
without analyzing the possessor’s intent, the design must be so obvious that the items
possess no benign purpose or social utility. See generally., United States v. Tankersley,
492 F.2d at 965-966.
Devices which are readily assembled provide further evidence for items to pass
the objective test. United States v. Price, 877 F.2d 344 (5th Cir. 1989). In Price,
defendant possessed all the necessary components to immediately assemble a
grenade, and the Fifth Circuit found he was in possession of a destructive device. Id.
at 337. The Fifth Circuit explained that “unassembled components fit within the
definition of a destructive device if the defendant possesses every essential part
necessary to construct an explosive device, and if those parts may be assembled
readily.” Id. Therefore, devices must be readily assembled in order to objectively
satisfy the language of § 5845(f)(3). Id.
The items Ms. Bourne packed in the duffle bag, the hair spray, 3D printed cylinder, and
the curve code, do not constitute components objectively designed for conversion into a destructive
device under § 5845(f)(3). First, the destructive nature of the items is not so obvious there is no
23
social utility or benign purpose for their possession. Similar to Tankerlsey and Peterson, the items
Ms. Borne packed in her bag have very clear social utility and do not readily convert into an
obvious destructive device. Ms. Borne packed a can of hair spray, a 3D printed cylinder, and a
USB containing a curve code, along with clothes and toiletries. (R. at 12) Ms. Borne intended to
use the hairspray to control her hair in Azran’s humid climate, a very common act of a teenage
female. (R. at 12.) The 3D printed cylinder was also benign because it was still encased in its mold,
thus it was not even in the correct form to be readily converted into a destructive device. (R. at
10.) Lastly, a USB drive is a common item for a student to possess, especially a student who is
attending a program which focuses on science, technology, engineering, and mathematics where
such devices are a necessity. (R. at 3.) Therefore, there were clear benign purposes for Ms. Borne’s
possession of the items packed in her bag.
Further, upon analysis of the language of the statute, the items Ms. Borne packed in her
duffle bag do not clearly fall within the meaning of a destructive device. In § 5845(f)(3), the statute
explains that items designed for conversion into a destructive device must fall within the definition
of a destructive device in subsections (1) or (2) under § 5845(f). Particularly, in
§ 5845(f)(2),
it states that any weapon which could “expel a projectile by the action of an explosive or other
propellant,” the barrel must “have a bore of more than one-half inch in diameter.” (emphasis
added). The cylinder, which was within the duffle bag, was only one half-inch, and does not meet
the standard set forth in the statute. (R. at 10.) The statute specifically uses the word “more than
one-half inch,” emphasizing that the diameter must be greater than one-half inch. (R. at 10.) Thus,
because the 3D printed cylinder is less than the diameter required in the statute, she cannot be
convicted under for possession of a device that falls within the definition of § 5845(f)(2).
24
Additionally, Ms. Borne is not in possession of a destructive device under subsection (1).
In § 5845(f)(1), the statute lists several different types of destructive devices, and the items Ms.
Borne possessed in her bag likely could not be readily assembled to fulfill the requirement of any
of them. Although the can of hairspray Ms. Borne possessed was more than 4 ounces, the 4 ounce
rule only applies to rockets, which even the lower courts agreed was not the type of device she
possessed. (R. at 12.). Thus, the hairspray does not cause her to violate the statute. (R. at 20.)
Therefore, Ms. Borne did not objectively possess a destructive device, and thus her intent should
be considered, and her conviction reversed.
Distinguishable from Price, the schematics are objectively not a component
part of a destructive device because they cannot be readily assembled. It took twelve
hours to print only the cylinder on Mr. Triton’s 3D printer, and would take at least
the same length of time to print a handgun. (R. at 10.) Because devices defined in §
5845(f)(3) are readily assembled, there is no objective destructive quality of the
schematics. Therefore, even if Ms. Borne is attributed to possession of Mr. Triton’s
gold USB, she is not in possession of a convertible set of parts of a handgun, and her
conviction should be reversed.
Thus, because the items Ms. Borne possessed do not have a singular destructive purpose,
they do not meet the standards of the objective test for conviction. Thus, this Court should reverse
the decision of the Fourteenth Circuit because Ms. Borne was not in possession of a destructive
device.
25
E. Analysis of Ms. Borne’s subjective intent further proves she was not in possession of
a device as defined by § 5845(f)(3).
When defendants possess individual components of an alleged destructive device, the
subjective intent of the possessor may be considered to determine if the parts could be readily
converted into a destructive device. See Posnjak, 457 F.2d at 1119. In Posnjak, the court stated the
possessor's subjective intent is important when the alleged “components” of the device are
“capable of conversion into both such a device and another object not covered by the statute.” Id.
Although in Posnjak defendant was not specifically being charged under § 5845(f)(3), the court
intentionally stated that it is only when it is “clear” the assembled components create a device that
falls within sections (1) or (2) of the statute is intent “irrelevant.” See Posnjak, 457 F.2d at 1119.
Thus, subjective intent of the possessor should be considered. Id.
Moreover, the Seventh Circuit has held that when the objective characteristics of the device
“demonstrate that it may not be a weapon,” the possessor’s subjective intent should be analyzed.
Johnson, 152 F.3d at 627. In Johnson, the court explained when there is any ambiguity as to
whether the items are components readily assembled into a destructive device, and there is no
singular “proscribed purpose” for the items, subjective intent should be considered. Id. at 626
(citing Markley, 567 F.2d at 527). In addition, the court determined subjective intent should be
analyzed when there is a “legitimate social purpose.” Id. Furthermore, in the Ninth Circuit, the
court held that subjective intent was a “necessary element” and there must be “proof beyond a
reasonable doubt when there is no proof of “original design or redesign for use as a weapon.”
United States v. Fredman, 833 F.2d 837, 839 (9th Cir. 1987).
Because the majority of Circuits agree that subjective intent should be
considered when analyzing possession of items through § 5845(f)(3), this Court should
analyze Ms. Borne’s intent for possession of the items because she had a legitimate
26
social purpose for their possession. The items Ms. Borne packed in the duffle bag do
not have the singular purpose of conversion into a destructive device. Ms. Borne,
planning to attend a summer study abroad program, packed the requisite toiletries
she would need, such as a can of hairspray. (R. at 12.) Although the Fourteenth
Circuit held her hairspray was a component of a destructive device, like the standard
in Johnson, hairspray serves a legitimate social purpose, thus Ms. Borne’s subjective
intent should be considered. (R. at 19.) Ms. Borne packed an average sized can of
hairspray, because she needed the hairspray “to keep her hair stylish in the higher
humidity of Azran.” (R. at 12.) Thus, she had no intent to use the hairspray for
anything beyond hair control, further demonstrating she packed the hairspray for
benign purposes.
Although Ms. Borne did not herself pack the matches found within the duffle
bag, because matches have a dual purpose, they provide further evidence that Ms. Borne’s
subjective intent should be considered by this Court. As both the Second Circuit and the Seventh
Circuit have emphasized, unless it is objectively clear that the items have a sole purpose to be
converted into destructive device, intent should be considered. Matches are items that have
legitimate social purposes. Thus further reason why this Court should examine Ms. Borne’s intent.
Nowhere in the record does it state Ms. Borne intentionally packed the matches. Rather she used
the family duffle bag, which was often used for camping, to pack her belongings for her summer
in Azran. (R. at 12.) The small pack of matches was already stored within an “interior pocket of
the duffle bag,” because her family left them inside the bag for camping emergencies. (R. at 12.)
Because the pocket the matches were stored in was both inside the bag and waterproof, it was
incredibly easy for Ms. Borne to not even notice the tiny pack existed. (R. at 12.) Thus, even if the
27
Court considers the matches in their determination of Ms. Borne’s culpability, she did not intend
to use the matches for destructive purposes, thus this Court should reverse the holding of the
Fourteenth Circuit.
Neither the 3D printed cylinder nor the USB drive containing the curve code have a
singular prescribed purpose for destruction, but rather are benign objects, thus this Court should
examine Ms. Borne’s intent for their possession. Ms. Borne has interest in becoming a computer
programmer and internet activist, and like many ambitious teenagers, desires to use her skills to
be a “force for good in the universe.” (R. at 11.) Ms. Borne only packed the benign cylinder and
the purple USB drive containing the curve code to prove her skill and talent to Mr. Allen as a
programmer. (R. at 12.) Ms. Borne intended to use these items to prove her computer programming
skills, hoping Mr. Allen “would be so impressed he would agree to mentor her.” (R. at 12.) Ms.
Borne wanted to visit Mr. Allen to get career advice from him, who is retired and lives in Azran.
(R. at 11, 6.) When looking at the items she intentionally packed in her duffle bag, Ms. Borne had
no intent to convert them into a destructive device; therefore, she was not in violation of §
5845(f)(3).
The lower courts believe that because Ms. Borne made a tweet referencing gun
control, and because Mr. Triton intended to give her and his daughter the USB drive
with the schematics for printing 3D guns, she could create an exploding gun. Ms.
Borne's overly scrutinized tweet essentially expressed her support of gun control laws after one of
her classmates died in a gun-related incident. (R. at 17.) Therefore, a harmless tweet does not
demonstrate that Ms. Borne intended to convert items into an exploding handgun, therefore this
Court should overturn Ms. Borne's unjust conviction for possession of a destructive device.
28
The record demonstrates Ms. Borne did not intend to convert any items into a destructive
device, and none of the items, whether separate or combined have a singular proscribed purpose
as a destructive device. Rather, each of these items has a legitimate, benign purpose. Thus, even if
this Court analyzes Ms. Borne’s subjective intent for possession of the items, the decision of the
Fourteenth Circuit should be reversed.
F. Intent to create a device does not prove an individual possessed a device defined by §
5845(f)(3).
When analyzing component parts, courts are not to look at whether an
individual had the intent to create a destructive device, but rather if the individual
intended to use readily convertible items to construct a destructive device. Posnjak,
457 F.2d at 1120. The Second Circuit explained that intent to create a device “which
will be used improperly for the destruction of property or lives,” is irrelevant to the
definition of a destructive device. Id.
Ms. Borne possessed neither the intent to create a destructive device nor the intent to
convert the items into a destructive device. The lower courts incorrectly assume that because Mr.
Triton's USB drive contained schematics for a 3D printed handgun, and Ms. Triton possessed a
USB drive containing the plastic filament formula, Ms. Borne intended to create an exploding
firearm. (R. at 15-16, 20-21.) However, Ms. Borne never intended to create a firearm of any kind.
Mr. Triton downloaded the plans to make a handgun, and he saved them onto the gold USB drive.
(R. at 9.) Additionally, Ms. Borne was never informed that he was working on that type of project,
and had not even seen the USB drive, let alone knew its contents when she was arrested.
Furthermore, it was Ms. Triton who decided to bring the plastic filament formula to Azran,
and Ms. Borne did not even know Ms. Triton was carrying it with her. (R. at 26.) The Fourteenth
Circuit incorrectly assumed that the plans Mr. Triton placed on the USB drive for the gun were
29
those of Ms. Borne, and even so, this information is irrelevant because § 5845(f)(3) focuses on the
intent to convert, not the intent to create a destructive device.
Thus, this Court should not even consider the schematics on Mr. Triton's USB Drive
because they are not even relevant to analysis of component parts under § 5845(f)(3). Therefore,
Ms. Borne did not possess the needed intent to be penalized under § 5845(f)(3), and this Court
should reverse the holding of the Fourteenth Circuit.
II.
THIS COURT SHOULD REVERSE MS. BORNE’S CONVICTION UNDER 18 U.S.C. §
2339B BECAUSE THE FOURTEENTH CIRCUIT’S ERRONEOUS RELIANCE UPON
UNSUBSTANTIATED,
HYPOTHETICAL
POSSIBILITIES
RESULTED
IN
CRIMINALIZATION OF BENIGN AND CONSTITUTIONALLY PROTECTED CONDUCT.
A person does not violate 18 U.S.C. § 2339B (2015) unless she knowingly
provides, attempts to provide, or conspires to provide material support or resources
to a Foreign Terrorist Organization (FTO). ‘Knowingly’ refers to “knowledge of the
foreign group's designation as a terrorist organization or its commission of terrorist
acts . . . .” Holder v. Humanitarian Law Project, 561 U.S. 1, 1 (2010). Further, § 2339B
requires that “[n]othing in this section shall be construed or applied so as to abridge the exercise
of rights guaranteed under the First Amendment to the Constitution of the United States.” 18
U.S.C § 2339B(i).
A. Ms. Borne did not violate 18 U.S.C § 2339B.
1. Ms. Borne did not have the required knowledge for a conviction under
18 U.S.C § 2339B.
A person does cannot violate 18 U.S.C § 2339B unless she has knowledge of an
organization’s ties to terrorism. See id. § 2339B(a)(1). The statute describes three
specific situations in which the knowledge requirement may be satisfied. Id.
30
First, knowledge of an organization’s designation as an FTO satisfies the
knowledge requirement. Id. The second and third types of knowledge that satisfy the
requirement are based on two different definitions of engagement in terrorism. Id.
Second, knowledge of the organization’s engagement in terrorist activity
satisfies the knowledge requirement. Id. § 2339B(a)(1). Terrorist activity is any
unlawful activity that involves at least one of several listed violent acts. 8 U.S.C. §
1182(a)(3)(B)(iii) (2015). These acts are limited to high jacking or sabotaging a
conveyance; using hostages as leverage to compel action from a third party; violently
attacking an internationally protected person; assassination; and use of chemical,
nuclear, and/or explosive weapons or devices. Id § 1182(a)(3)(B)(iii)(I)-(V).
Third, knowledge of the organization’s engagement in terrorism satisfies the
knowledge requirement. 18 U.S.C. § 2339B(a)(1). Terrorism is defined as
“premeditated, politically motivated violence perpetrated against noncombatant
targets by subnational groups or clandestine agents.” 22 U.S.C. § 2656f(d)(2) (2015).
Here, there is no evidence that Ms. Borne had any knowledge of any individual
or group designation as an FTO. The record states that Ms. Borne was aware of some
of Dixie Millions’ internet activities. (R. at 8, 17.) Although Dixie Millions was
designated as an FTO on December 30, 2011, (R. at 5.), the record is devoid of any
evidence that would demonstrate Ms. Borne’s knowledge of such a designation. In
addition, Mr. Allen himself was not designated as an FTO. Mr. Allen retired from
Dixie Millions on March 20, 2012. (R. at 6.) Mr. Allen was not a member of any FTO
during the time that the hypothetical meeting might have taken place.
31
Furthermore, there is no evidence that Dixie Millions had ever engaged in any
activities that would satisfy either form of terrorism. First, ‘terrorist activity’ requires
an unlawful act and engagement in one of the listed violent acts. Second, ‘terrorism’
requires premeditated, politically motivated violence. The record lists activities that
Dixie Millions allegedly engaged in before and after its designation as an FTO such
as leaking government documents and interfering with websites and computer
networks in the public and private sectors. (R. at 5.) While the document leaks and
internet interference that Dixie Millions was allegedly responsible for may have been
unlawful, the record does not contain any evidence of the organization engaging in
acts of violence like assassinations, hijackings, or use of dangerous weaponry. While
the means that Dixie Millions used in order to achieve its goals could certainly be
viewed negatively, the moral position of the organization is immaterial because it did
not engage in acts of violence that satisfy the statutory requirement under § 2339B.
The record also lacks any evidence that would suggest Mr. Allen engaged in violent
acts individually.
Ms. Borne could not have known that Dixie Millions was engaged in acts of
terrorism because Dixie Millions did not engage in acts of violence required under the
definitions of terrorism applicable to § 2339B. Even if Ms. Borne was aware of the
organization’s document leaks and internet interference, which the record does not
specifically indicate, these activities lack the violent element that is required for
terrorism under the statute. Thus, the record demonstrates that Ms. Borne did not
have the knowledge that the statute requires for conviction.
32
2. Ms. Borne did not provide, attempt to provide, or conspire to provide a Foreign
Terrorist Organization with material support or resources.
A person does not violate 18 U.S.C § 2339B unless she provides, attempts to
provide, or conspires to provide material support or resources to an FTO. Id. §
2339B(a)(1). The statute states in pertinent part that “material support or resources”
means “any property, tangible or intangible, or service, including . . . training, expert
advice or assistance, weapons, lethal substances, explosives, [and] personnel (1 or
more individuals who may be or include oneself) . . . .” Id. § 2339A(b)(1). “[T]he term
‘training’ means instruction or teaching designed to impart a specific skill, as opposed
to general knowledge.” Id. § 2339A(b)(2). “[T]he term ‘expert advice or assistance’
means advice or assistance derived from scientific, technical or other specialized
knowledge.” Id. § 2339A(b)(3).
Inchoate crimes, such as attempt and conspiracy, have both mens rea and
actus reus requirements. See United States v. Resendiz-Ponce, 549 U.S. 102, 106-07
(2007); Pinkerton v. United States, 328 U.S. 640, 646-47 (1946). Attempt requires the
intent to commit the completed offense and an overt act that results in a substantial
step toward the target offense. Resendiz-Ponce, 549 U.S. at 106-07. Conspiracy
requires agreement between at least two parties, intent to commit the target offense,
and an overt act. See Pinkerton, 328 U.S. at 646-47.
Lower courts have addressed challenges to evidentiary sufficiency for
convictions under 18 U.S.C. § 2339B. See, e.g., United States v. Mehanna, 735 F.3d
32 (1st Cir. 2013), cert. denied, 135 S. Ct. 49 (2014); United States v. Hammadi, 737
F.3d 1043 (6th Cir. 2013); United States v. Al Kassar, 660 F.3d 108 (2d Cir. 2011),
33
cert. denied, 132 S.Ct. 2374 (2012); United States v. Farhane, 634 F.3d 127 (2d Cir.
2011), cert. denied, 132 S.Ct. 833 (2011). In Hammadi, defendant’s conviction under
18 U.S.C. § 2339B was affirmed by the Sixth Circuit because defendant provided a
foreign terrorist organization with money and weapons. Hammadi, 737 F.3d at 1044.
This evidence was available because defendant had been working with an undercover
FBI informant, and the evidence was held to be both admissible and sufficient for
conviction under the statute. Id. at 1045.
In Mehanna, the evidence was sufficient to establish that defendant and his
associates traveled to Yemen with the intent to provide material support to a terrorist
organization as required to support defendant's convictions of conspiracy to provide
material support to a foreign terrorist organization, conspiracy to provide material
support to terrorists knowing or intending it be used to commit specific violent crimes,
and providing and attempting to provide material support to terrorists. Mehanna,
735 F.3d at 41-47. Defendant had expressed interest in receiving military-type
training in order to participate in jihad against United States forces in Iraq. Id. at
44. Defendant kept his travel plans hidden from his family and traveled to Yemen in
order to find a terrorist training camp. Id. Defendant also engaged in a cover-up that
continued long after his return from Yemen and rabidly supported the actions of the
terrorist organization. Id. at 45.
In the present case, it is first necessary to point out that the majority opinion
of the Fourteenth Circuit failed to acknowledge the foundation upon which this
wrongful conviction was concocted: Ms. Borne was selected to participate in an
34
advanced study abroad program due to her hard work and dedication to the
technological field. (R. at 1-4.) Instead—as the dissent correctly noted—the majority
largely depended on purely hypothetical scenarios to justify its holding. (R. at 26.) As
the dissent stated, “[t]hat . . . Ms. Borne’s actions may possibly, eventually, result in
terrorism is not by itself enough evidence to convict her for aiding an FTO.” (R. at 26.)
The lower courts erroneously deemed Ms. Borne to be in possession of several
items used in her conviction. The record states that Ms. Borne packed clothes,
toiletries, grooming supplies, her own thumb drive that contained the curve code, and
the benign cylinder that demonstrated the effectiveness of the curve code. (R. at 12.)
However, a USB drive containing music that Mr. Triton intended to give to Ms. Borne
and Ms. Triton was inexplicably deemed to be in Ms. Borne’s possession. (R. at 16.)
Although Mr. Triton believed that he had deleted the 3D-printed gun schematics,
investigators discovered the schematics on his USB drive. (R. at 16.) Ms. Borne was
not aware that she and her classmate would be receiving this USB drive. Moreover,
the record clearly demonstrates that she was never even aware that Mr. Triton had
such schematics.
In addition to the USB drive that Ms. Borne was—unbeknownst to her—
alleged to receive, the plastic filament formula Ms. Triton had taken—without Mr.
Triton’s permission—and stored on her personal USB drive was inexplicably deemed
to be in Ms. Borne’s possession. (R. at 18.) The lower courts used some unreported
combination of these items in convicting Ms. Borne, however, the record is equally
vague as to which form of the crime was the basis for conviction.
35
The record is unclear regarding the actual form of the crime that Ms. Borne
was convicted of because the record simply does not support a conviction. The
hypothetical meeting between Ms. Borne and Mr. Allen never took place. Ms. Borne
was arrested on her way to the airport, well before she even reached her study abroad
destination of Azran. (R. at 15.) The record is void of any other evidence of a completed
offense under the statute. Thus, the conviction cannot be based on actually providing
material support. The only other errant basis that the lower courts might have had
in convicting Ms. Borne would be based upon an inchoate offense.
The record does not support an inchoate offense conviction. As this Court’s
jurisprudence indicates, a conviction based upon conspiracy requires: agreement
between two or more parties, intent to commit the offense, and an overt act in
furtherance of the crime. These elements are not present in Ms. Borne’s case. Ms.
Borne hoped that she would meet Mr. Allen in Azran in order to seek advice on her
career path. (R. at 11.) The record indicates that Ms. Borne did not discuss this desire
with any party. Thus, there cannot possibly be an agreement. Ms. Borne intended
merely to show Mr. Allen the curve code in order to demonstrate her proficiency in
computer coding and gain Mr. Allen’s approval. (R. at 12.) As the dissent stated, “Ms.
Borne may be guilty of exercising immature judgment, but that is not and should not
be a crime requiring her to be locked away in prison for fifteen years.” (R. at 26.)
Showing Mr. Allen the code in order to express to him that she is a competent
computer programmer is a far stretch from intending to provide material support to
a foreign terrorist organization. Additionally, it is imperative to note that Ms. Borne’s
36
mere desire to meet Mr. Allen was based purely on chance because there is no
evidence that she had ever been in contact with him. If Ms. Borne had been in contact
with Mr. Allen, she likely would not have had to create a spreadsheet detailing his
whereabouts in Azran, create a virtual picture of him in order to identify him, or use
a formula predicting his whereabouts. (R. at 11.)
An attempt based conviction of Ms. Borne is similarly unsupported. As in the
conspiracy analysis, Ms. Borne did not intend to provide material support to an FTO.
Ms. Borne merely hoped that she would meet—a retired—Mr. Allen to show him
computer code that would print a curve and a cylinder to prove its efficacy in order to
win his favor. (R. at 12.) The record does not contain any evidence supporting the
conclusion that Ms. Borne would have given Mr. Allen anything. Packing for a long
term trip with materials that are needed in order to live and study is equally—if not
more—indicative of a substantial step toward studying abroad. While Ms. Borne did
print a picture of what she thought Mr. Allen might look like during her time in
Azran, (R. at 12.), the entire situation was based on Ms. Borne’s mere desire to meet
Mr. Allen.
Mehanna is distinguishable because it demonstrates a situation in which a
conviction under the statute for an inchoate offense is proper. Defendant in Mehanna
traveled to Yemen intending to train and commit violent acts of terror against the
United States and rabidly supported the terroristic cause which he intended to join.
Ms. Borne would not have been traveling to Azran but for her selection into the study
abroad program at the University of Misthallery. (R. at 4.) Rather than being a rabid
37
supporter of an FTO, Ms. Borne encouraged hacker groups to avoid engaging in acts
that could be considered terroristic in nature. (R. at 17.)
The record does not support Ms. Borne’s conviction under 18 U.S.C. § 2339B.
Mr. Allen was retired before the time that the hypothetical meeting might have taken
place. The record does not indicate that Ms. Borne was aware of Dixie Millions’
designation as an FTO, nor that any of the activities that the organization engaged
in were considered acts of terror as defined by the statute. Ms. Borne did not actually
provide material support to any FTO. She also lacked the intent to commit the
completed crime that is required of an inchoate conviction because she merely hoped
that she would be able to show Mr. Allen the code and benign cylinder in order to
express to him that she was a competent computer programmer. The record
demonstrates that Ms. Borne did not conspire to provide material support because no
one was aware that she hoped to meet Mr. Allen and she did not intend to commit
the completed crime. A conviction based on attempt is also unsupported because of
the lack of intent, and any evidence of a substantial step is circumstantial at best.
Therefore, this Court should reverse Ms. Borne’s conviction under 18 U.S.C § 2339B.
B. The hypothetical, improbable meeting that Ms. Borne’s conviction was
apparently—and erroneously—based upon would have involved
expression that is protected under the First Amendment.
“If a statute regulates speech based on its content, it must be narrowly tailored
to promote a compelling Government interest.” United States v. Playboy Entm't Grp.,
Inc., 529 U.S. 803, 813, (2000). When a “less restrictive alternative would serve the
Government's purpose, the legislature must use that alternative.” Id. at 813.
38
1. The First Amendment affords full protection to Ms. Borne’s expressive
speech.
The First Amendment grants protection to “[a]ll ideas having even the
slightest redeeming social importance.” Roth v. United States, 354 U.S. 476, 484
(1957). This protection applies to speech regarding scientific advancement. Id. at 484.
First Amendment protection extends well beyond mere written and spoken
words. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 569
(1995). This Court has recognized that the First Amendment grants protection to
expressive speech in the form of parades, Id. at 569, wearing an armband to protest
war, Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), and even
marching in Nazi uniforms, Nat'l Socialist Party of Am. v. Vill. of Skokie, 432 U.S. 43
(1977).
Lower courts have recognized that computer code must be protected in the
same manner as other forms of speech. See, e.g., Junger v. Daley, 209 F.3d 481 (6th Cir.
2000); Universal City Studios, Inc. v. Corley, 273 F.3d 429, 446 (2d Cir. 2001). In
Junger, Plaintiff constitutionally challenged provisions of the Export Administration
Regulations. In recognizing the First Amendment protection of computer code, the
Sixth Circuit stated:
The Supreme Court has expressed the versatile scope of the First
Amendment by labeling as “unquestionably shielded” the artwork of
Jackson Pollack, the music of Arnold Schoenberg, or the Jabberwocky
verse of Lewis Carroll. Hurley v. Irish-American Gay, Lesbian and
Bisexual Group, 515 U.S. 557, 569, 115 S.Ct. 2338, 132 L.Ed.2d 487
(1995). Though unquestionably expressive, these things identified by
the Court are not traditional speech. Particularly, a musical score
cannot be read by the majority of the public but can be used as a means
of communication among musicians. Likewise, computer source code,
39
though unintelligible to many, is the preferred
communication among computer programmers.
method
of
Junger, 209 F.3d at 484. The court ultimately held that this Court’s First Amendment
jurisprudence grants protection to expression in the form of computer code. Id. at 485;
see also Corley, 273 F.3d at 446 (holding a software program qualified as speech for
First Amendment purposes).
As the holdings in the lower courts demonstrate, computer code requires
protection under the First Amendment. Ms. Borne’s curve code is inherently
expressive in a way that is analogous to expression found in music, marches, and
many other nontraditional forms of speech. As this Court stated in Roth, scientific
advancement is a great benefit to our society, and it is necessary for this Court to
provide this valuable form of expression with reasonable protection under the First
Amendment.
2. Application of 18 U.S.C. § 2339B to Ms. Borne fails under the strict
scrutiny standard that this Court’s First Amendment jurisprudence
requires.
18 U.S.C. § 2339B regulates speech based on its content. Holder, 561 U.S. at
27. When a governmental restriction is related to expression, the restriction must be
analyzed under strict scrutiny. See id. at 28.
Varying levels of protection and scrutiny are given in expression cases
depending upon the circumstances involved. While First Amendment protections “do
not permit a State to forbid or proscribe advocacy of the use of force or of law violation
except where such advocacy is directed to inciting or producing imminent lawless
action and is likely to incite or produce such action,” Brandenburg v. Ohio, 395 U.S.
40
444, 447 (1969), cases that do not involve incitement of law violation and instead are
grounded in content-based restrictions require “a more demanding standard.” Holder,
561 U.S. at 28 (citation omitted).
This Court has directly addressed the level of scrutiny that challenges to 18
U.S.C. § 2339B require. See generally Holder, 561 U.S. at 1. In Holder, humanitarian
groups sought clarification of prohibited conduct under the statute. Id. at 1. The
groups had provided training and expert advice to foreign terrorist organizations so
that they could use legitimate, legal channels in order to achieve their goal of
obtaining legitimacy in their respective countries. Id. at 7-10. After Congress had
adopted legislation that included 18 U.S.C. § 2339B, the groups wanted to be sure
that they would not face prosecution for continuing their humanitarian aid. Holder,
561 U.S. at 7-10 (2010). The groups challenged the constitutionality of the statute on
Fifth and First Amendment grounds. Id. at 10-11.
This Court was unpersuaded by the Fifth Amendment argument. Id. at 18-26.
The vagueness argument was rejected largely on the grounds that Congress had
explicitly stated conduct prohibited under the statute and had clarified the
prohibitions on several occasions. See id. The argument that a person of ordinary
intelligence would be unable to determine whether their conduct was prohibited
failed because the conduct the groups wished to continue was expressly prohibited by
the statute. Id. The groups stated that they desired to “teach” and provide “expert
advice” to foreign terrorist organizations. Id. at 21-22. Because their desired conduct
was clearly prohibited, this Court denied the Fifth Amendment claims. Id. at 21-26.
41
This Court was also unpersuaded by the First Amendment argument because
the conduct that the groups wished to engage in was clearly prohibited by statute. Id.
at 26-33. This Court stated:
The First Amendment issue before us is more refined than either
plaintiffs or the Government would have it. It is not whether the
Government may prohibit pure political speech, or may prohibit
material support in the form of conduct. It is instead whether the
Government may prohibit what plaintiffs want to do—provide material
support to [foreign terrorist organizations] in the form of speech.
Id. at 28. Framing the argument in this manner resulted in a defeat for the First
Amendment challenge. Id. at 39. While the argument failed there, the majority
opinion made clear that such a challenge could be successful in the future if framed
in a different way. Id. This Court demonstrated that future First Amendment
challenges to the statute would be required to pass strict scrutiny when protected
expression is restricted. See id. at 28.
This Court has invalidated governmental restriction of expression by using
strict scrutiny on several occasions. See, e.g., Spence v. State of Wash., 418 U.S. 405
(1974). In Spence, defendant was arrested and charged under an improper use statue
for hanging an American flag covered with peace signs upside down outside of his
apartment window. Id. at 406-07. This Court explained that context is important
when dealing with expression cases. Id. at 410. Further, “[a]n intent to convey a
particularized message was present, and in the surrounding circumstances the
likelihood was great that the message would be understood by those who viewed it.”
Id. at 410-11. It recognized that it was “confronted then with a case of prosecution
for the expression of an idea through activity.” Id. at 406-407. This Court invalidated
42
defendant’s conviction based on the First Amendment protections that apply to his
expression. Id. at 415; see also Cohen v. California, 403 U.S. 15 (1971) (reversing
defendant’s conviction under disorderly conduct statute using rigorous scrutiny based
on First Amendment protection of expression).
Here, Holder is distinguishable. In Holder, the humanitarian groups sought to
teach and give expert advice and assistance to foreign terrorist organizations. These
activities were expressly prohibited by the statute. Mr. Allen retired from Dixie
Millions on March 20, 2012. (R. at 6.) Mr. Allen was not a member of any FTO during
the time that the hypothetical meeting might have taken place. Additionally, Ms.
Borne did not intend to provide Allen with anything at all. She intended only to show
Mr. Allen the curve code and benign cylinder in order to express to him that she is a
competent computer programmer. (R. at 11, 12.) The Fourteenth Circuit errantly
reasoned that Mr. Allen might have taken the code, that he might have used it to
make money, and that Dixie Millions might use that money to engage in acts of
terrorism. (R. at 22.) As the dissent stated, criminal law punishes for what has
happened, not what might happen. (R. at 26.) Additionally, while the Fifth
Amendment argument failed in Holder, a person of ordinary intelligence would not
be able to readily conclude that having a conversation with a man in order to seek
career advice would result in a fifteen year prison sentence, as Ms. Borne has come
to learn. Both of these constitutional issues demonstrate the illegitimacy of Ms.
Borne’s conviction.
43
Here—as in Spence—Ms. Borne intended to convey a particularized message.
Ms. Borne’s computer code and benign cylinder would have expressed a message that
would have been understood by Mr. Allen to mean that she was a competent
programmer because it was a complex code that required input from multiple adults
that were competent in the field in order to perfect. That contextual understanding
is exactly what this Court requires under Spence. In addition, just as in Spence, Ms.
Borne’s prosecution is based on expression of an idea through an activity. Ms. Borne
was prosecuted for a hypothetical, improbable meeting in which she merely desired
to express the idea that she was competent in a technological field. Here, as in
Spence, restrictions placed upon Ms. Borne’s protected speech and expression must
fail under the strict scrutiny that this Court applies in such cases.
The district court erred when it used the Brandenburg analysis in Ms. Borne’s
prosecution, and the Fourteenth Circuit erred in relying upon the analysis. The
Fourteenth Circuit stated that it “decline[d] to re-perform an analysis under the test
laid out in Brandenburg v. Ohio . . . .” (R. at 21.) The Brandenburg test is
inappropriate in this case because Ms. Borne’s hypothetical meeting with Mr. Allen
would not have involved the advocacy of the use of force or law violation. Were the
meeting to even take place, the interaction would have only involved Ms. Borne
showing the curve code and benign cylinder to Mr. Allen in order to demonstrate
computer programming competence. The record lacks sufficient evidence to support
the conclusion that Ms. Borne desired to even give the code to Mr. Allen. When the
meeting is described in the record, only her desire to show the code and receive career
44
advice are mentioned. (R. at 12.) Furthermore, the record lacks sufficient evidence to
support the even more speculative conclusion that the interaction would have been
aimed at engaging in the use of force and/or law violation. Again, the record
demonstrates only that Ms. Borne wanted to meet Mr. Allen, show him the computer
code and curve to demonstrate competence, and solicit career advice. (R. at 12.) To
the extent that either lower court relied upon the Brandenburg test at all, that
reliance was in error.
While this Court stated that combatting terrorism is a compelling
governmental interest, the means in this case are not sufficiently narrowly tailored
to survive a strict scrutiny analysis. Ms. Borne was travelling to Azran in order to
partake in an advanced study abroad program due to her demonstrated hard work
and diligence in her field of interest. (R. at 1-4.) The government’s prosecution of Ms.
Borne prevented her from participating in this program and has likely had a severe,
negative impact upon her future, both professionally and personally. Preventing a
bright, seventeen year old girl from participating in a program that could have such
a positive and formative impact on her life is not “narrowly tailored” to further the
interest of combatting terrorism by any stretch of the imagination. As in Spence and
Cohen, the governmental intrusion in this case is simply too paternalistic too be
considered consistent with fundamental rights of expression guaranteed by the First
Amendment. The circumstantial evidence that the lower courts relied upon in
convicting Ms. Borne was based on highly speculative and hypothetical scenarios, and
the conclusions drawn simply run too far astray of the Legislative intent and First
45
Amendment protections. Therefore, this Court should reverse Ms. Borne’s conviction
under 18 U.S.C. § 2339B.
CONCLUSION
Petitioner respectfully requests this Court reverse the ruling of United States
Court of Appeals for the Fourteenth Circuit.
Respectfully submitted,
Team 94
November 23, 2015
Counsel for Petitioner
46
APPENDIX
Federal Statutory Provisions
National Firearms Act-26 U.S.C. § 5845(f)-Definitions:
(f) Destructive device.--The term “destructive device” means (1) any explosive, incendiary, or
poison gas (A) bomb, (B) grenade, (C) rocket having a propellant charge of more than four ounces,
(D) missile having an explosive or incendiary charge of more than one-quarter ounce, (E) mine,
or (F) similar device; (2) any type of weapon by whatever name known which will, or which may
be readily converted to, expel a projectile by the action of an explosive or other propellant, the
barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or
shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting
purposes; and (3) any combination of parts either designed or intended for use in converting any
device into a destructive device as defined in subparagraphs (1) and (2) and from which a
destructive device may be readily assembled. The term “destructive device” shall not include any
device which is neither designed nor redesigned for use as a weapon; any device, although
originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic,
line throwing, safety, or similar device; surplus ordnance sold, loaned, or given by the Secretary
of the Army pursuant to the provisions of section 4684(2), 4685, or 4686 of Title 10 of the United
States Code; or any other device which the Secretary finds is not likely to be used as a weapon, or
is an antique or is a rifle which the owner intends to use solely for sporting purposes.
18 U.S.C. § 2339B-Providing material support or resources to designated foreign terrorist
organizations
(a) Prohibited activities.-(1) Unlawful conduct.--Whoever knowingly provides material support or resources to a
foreign terrorist organization, or attempts or conspires to do so, shall be fined under this
title or imprisoned not more than 20 years, or both, and, if the death of any person results,
shall be imprisoned for any term of years or for life. To violate this paragraph, a person
must have knowledge that the organization is a designated terrorist organization (as defined
in subsection (g)(6)), that the organization has engaged or engages in terrorist activity (as
defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that the
organization has engaged or engages in terrorism (as defined in section 140(d)(2) of the
Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).
47