NO. C15-1359-1
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER 2015 TERM
EMMALINE BORNE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTEENTH CIRCUIT
BRIEF FOR THE PETITIONER
Team 96
Counsel for Petitioner
QUESTIONS PRESENTED
I. Under 26 U.S.C. § 5845(f)(3) (2012), can an individual be charged with making
a “destructive device” when 3D-printed handgun plans and miscellaneous
household items were nearby at the time of her arrest and she was in
possession of a 3D-printed plastic cylinder and the curve code for a 3D printer?
II. Under 18 U.S.C. § 2339B (2012), has an individual provided or attempted to
provide material support to a foreign terrorist organization when she only
intends to protect data, has never contacted the organization, and simply
wants to meet an organization member and show him mere tokens of her
educational credentials?
i
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........................................................................................... i
TABLE OF AUTHORITIES ......................................................................................... iv
OPINIONS BELOW ...................................................................................................... 1
STATEMENT OF JURISDICTION .............................................................................. 1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 1
STATEMENT OF THE CASE ....................................................................................... 2
Statement of Facts ................................................................................................... 2
Procedural History ................................................................................................... 9
SUMMARY OF THE ARGUMENT ............................................................................ 10
ARGUMENT ................................................................................................................ 14
I. THE FOURTEENTH CIRCUIT ERRED AS A MATTER OF LAW IN AFFIRMING
MISS BORNE’S CONVICTION UNDER 26 U.S.C. § 5845(F)(3) BECAUSE
THE ITEMS IN HER POSSESSION DID NOT CONSTITUTE AND COULD NOT
BE READILY ASSEMBLED INTO A DESTRUCTIVE DEVICE. .................................... 16
A. The Components Listed In Miss Borne’s Indictment Were Neither
“Designed” Nor “Intended” To Create A Destructive Device. .................... 18
1. This Court Should Consider Miss Borne’s Subjective Intent In
Determining Whether The Items Listed In Her Indictment
Constituted A Destructive Device. ........................................................ 21
2. The Government Failed To Prove That Miss Borne’s
Subjective Intent Was To Create A “Destructive Device.” ................... 23
B. Alternatively, The Items In Miss Borne’s Possession Could Not
Be Readily Assembled To Form A Destructive Device............................... 27
ii
TABLE OF CONTENTS—continued
Page
C. Even If The Items In Miss Borne’s Possession Could Be Readily
Assembled Into A Destructive Device, Miss Borne Lacked The
Requisite Knowledge That Those Components Were Prohibited
Under The Statute. ...................................................................................... 31
II. THE FOURTEENTH CIRCUIT ERRED AS A MATTER OF LAW IN AFFIRMING
MISS BORNE’S CONVICTION UNDER 18 U.S.C. § 2339B BECAUSE THE
STATUTE IS UNCONSTITUTIONAL AS APPLIED TO HER AND MISS BORNE
DID NOT PROVIDE MATERIAL SUPPORT WITHIN THE MEANING OF THE
STATUTE. ............................................................................................................ 33
A. Miss Borne’s Conviction Under § 2339B Violated Her Rights To
Free Speech And Free Association. ............................................................. 35
1. Section 2339B Should Require Knowledge or Intent That the
Defendant’s Activities Will Further the Terrorist
Organization’s Unlawful Objectives. .................................................... 36
2. Even Under The Direction Or Coordination Approach, Miss
Borne’s Conviction Was Improper Because Her Actions Were
Not Coordinated With Or Directed By Dixie Millions. ......................... 40
B. Miss Borne’s Conviction Under § 2339B Violated Her Right To
Due Process. ................................................................................................. 43
C. Even If § 2339B Is Valid As Applied, Miss Borne Did Not Provide
Material Support To A Terrorist Organization Within The
Meaning Of The Statute. ............................................................................. 46
CONCLUSION............................................................................................................. 48
APPENDIX................................................................................................................. A-1
iii
TABLE OF AUTHORITIES
Page(s)
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. I .................................................................................... 1, 35, 37–38
U.S. Const. amend. XIV ........................................................................................... 1, 43
UNITED STATES SUPREME COURT CASES
Bell v. United States,
349 U.S. 81 (1955) ............................................................................................. 15
Brandenburg v. Ohio,
395 U.S. 444 (1969) ........................................................................................... 37
Chandris, Inc. v. Latsis,
515 U.S. 347 (1995) ........................................................................................... 15
Citizens United v. Fed. Election Comm’n,
558 U.S. 310 (2010) ........................................................................................... 36
Conn. Nat’l Bank v. Germain,
503 U.S. 249 (1992) ........................................................................................... 15
De Jonge v. Oregon,
299 U.S. 353 (1937) ........................................................................................... 37
Elfbrandt v. Russell,
384 U.S. 11 (1966) ............................................................................................. 37
Haig v. Agee,
453 U.S. 280 (1981) ........................................................................................... 35
Hamdi v. Rumsfeld,
542 U.S. 507 (2004) ........................................................................................... 35
Henderson v. United States,
135 S. Ct. 1780 (2015) ................................................................................. 28–29
Highmark, Inc. v. Allcare Health Mgmt. Sys.,
134 S. Ct. 1744 (2014) ....................................................................................... 16
iv
TABLE OF AUTHORITIES—continued
Page(s)
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) ................................................................. 35–36, 38–41, 43–44
Kolender v. Lawson,
461 U.S. 352 (1983) ........................................................................................... 43
Liparota v. United States,
471 U.S. 419 (1985) ............................................................................... 15, 32–32
Morissette v. United States,
342 U.S. 246 (1952) ........................................................................................... 31
NAACP v. Claiborne Hardware Co.,
458 U.S. 886 (1982) ........................................................................................... 38
New York Times Co. v. Sullivan,
376 U.S. 254 (1964) ........................................................................................... 37
Reed v. Town of Gilbert,
135 S. Ct. 2218 (2015) ....................................................................................... 35
Rewis v. United States,
401 U.S. 808 (1971) ........................................................................................... 15
Roth v. United States,
354 U.S. 476 (1957) ........................................................................................... 37
Russello v. United States,
464 U.S. 16 (1983) ............................................................................................. 15
Scales v. United States,
367 U.S. 203 (1961) ........................................................................................... 37
Staples v. United States,
511 U.S. 600 (1994) ..................................................................................... 31–33
United States v. Balint,
258 U.S. 250 (1922) ........................................................................................... 31
United States v. Bass,
404 U.S. 336 (1971) ........................................................................................... 15
v
TABLE OF AUTHORITIES—continued
Page(s)
United States v. Dotterweich,
320 U.S. 277 (1943) ..................................................................................... 31–32
United States v. Freed,
401 U.S. 601 (1971) ........................................................................................... 32
United States v. Int’l Minerals & Chem. Corp.,
402 U.S. 558 (1971) ........................................................................................... 32
United States v. Turkette,
452 U.S. 576 (1981) ........................................................................................... 15
United States v. U.S. Gypsum Co.,
438 U.S. 422 (1978) ..................................................................................... 15, 31
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489 (1982) ........................................................................................... 43
UNITED STATES CIRCUIT COURT CASES
Al Haramain Islamic Found., Inc. v. U.S. Dep’t of the Treasury,
686 F.3d 965 (9th Cir. 2012) ............................................................................. 41
Boim v. Quranic Literacy Inst.,
291 F.3d 1000 (7th Cir. 2002) ........................................................................... 34
Borne v. United States,
No. 15-1359 (14th Cir. Oct. 1, 2015),
cert. granted, No. C15-1359-1 (Oct. 2015).................................. 1, 19–20, 47–48
Burchfield v. United States,
544 F.2d 922 (7th Cir. 1976) ............................................................................. 20
United States v. Afshari,
426 F.3d 1150 (9th Cir. 2005) ........................................................................... 47
United States v. Al Kassar,
660 F.3d 108 (2d Cir. 2011) ........................................................................ 44–45
vi
TABLE OF AUTHORITIES—continued
Page(s)
United States v. Ali,
799 F.3d 1008 (8th Cir.),
reh’g and reh’g en banc denied,
No. 13-2208, 2015 U.S. App. LEXIS 17297 (Oct. 1, 2015) ............................... 46
United States v. Augustin,
661 F.3d 1105 (11th Cir. 2011) ......................................................................... 44
United States v. Behanna,
814 F.2d 1318 (9th Cir. 1987) ........................................................................... 29
United States v. Blackburn,
940 F.2d 107 (4th Cir. 1991) ............................................................................. 27
United States v. Blackwell,
946 F.2d 1049 (4th Cir. 1991) ..................................................................... 24, 26
United States v. Chandia,
514 F.3d 365 (4th Cir. 2008) ............................................................................. 46
United States v. Copus,
93 F.3d 269 (7th Cir. 1996) ............................................................................... 21
United States v. El-Mezain,
664 F.3d 467 (5th Cir. 2011) ............................................................................. 42
United States v. Farhane,
634 F.3d 127 (2d Cir. 2011) ........................................................................ 44–45
United States v. Flenoid,
718 F.2d 867 (8th Cir. 1983) ............................................................................. 29
United States v. Fredman,
833 F.2d 837 (9th Cir. 1987) ................................................................. 23, 25–26
United States v. Greer,
588 F.2d 1151 (6th Cir. 1978) ........................................................................... 20
United States v. Hammond,
371 F.3d 776 (11th Cir. 2004) ............................................................... 18, 20–21
vii
TABLE OF AUTHORITIES—continued
Page(s)
United States v. Hamrick,
43 F.3d 877 (4th Cir. 1995) ................................................................... 18, 24, 28
United States v. Introcaso,
506 F.3d 260 (3d Cir. 2007) ........................................................................ 28–29
United States v. Jackson,
124 F.3d 607 (4th Cir. 1997) ............................................................................. 28
United States v. Jenkins,
981 F.2d 1281 (D.C. Cir. 1992) ......................................................................... 29
United States v. Johnson,
152 F.3d 618 (7th Cir. 1998) ................................................................. 19, 21–22
United States v. Khan,
794 F.3d 1288 (11th Cir. 2015) ......................................................................... 34
United States v. La Cock,
366 F.3d 883 (10th Cir. 2004) ........................................................................... 23
United States v. Loud Hawk,
628 F.2d 1139 (1979),
overruled on other grounds by United States v. Grace,
526 F.3d 499 (9th Cir. 2008) ............................................................................. 25
United States v. Lussier,
128 F.3d 1312 (9th Cir. 1997) ........................................................................... 19
United States v. Malone,
546 F.2d 1182 (5th Cir. 1977) ........................................................................... 28
United States v. Markley,
567 F.2d 523 (1st Cir. 1977) ............................................................................. 18
United States v. Medunjanin,
752 F.3d 576 (2d Cir.),
cert. denied, 135 S. Ct. 301 (2014).................................................................... 34
viii
TABLE OF AUTHORITIES—continued
Page(s)
United States v. Mehanna,
735 F.3d 32 (1st Cir. 2013),
cert. denied, 135 S. Ct. 49 (2014).......................................................... 36, 42–43
United States v. Morningstar,
456 F.2d 278 (4th Cir. 1972) ............................................................................. 20
United States v. Mulholland,
No. 14-4126-cr, 2015 U.S. App. LEXIS 18000 (2d Cir. Oct. 14, 2015) ............ 34
United States v. Oba,
448 F.2d 892 (9th Cir. 1971) ................................................................. 20, 23–24
United States v. Peterson,
475 F.2d 806 (9th Cir. 1973) ............................................................................. 20
United States v. Posnjak,
457 F.2d 1110 (2d Cir. 1972) .......................................................... 17–18, 20–21
United States v. Price,
877 F.2d 334 (5th Cir. 1989) ............................................................................. 19
United States v. Reed,
726 F.2d 570 (9th Cir. 1984) ....................................................................... 21, 23
United States v. Reindeau,
947 F.2d 32 (2d Cir. 1991) .......................................................................... 20–21
United States v. Rodriguez,
761 F.2d 1339 (9th Cir. 1985) ........................................................................... 29
United States v. Rubio,
677 F.3d 1257 (D.C. Cir. 2012) ......................................................................... 34
United States v. Rushcamp,
526 F.2d 1380 (6th Cir. 1975) ........................................................................... 27
United States v. Sizemore,
632 F.2d 8 (6th Cir. 1980) ................................................................................. 29
ix
TABLE OF AUTHORITIES—continued
Page(s)
United States v. Soto,
779 F.2d 558 (9th Cir. 1986) ............................................................................. 29
United States v. Spoerke,
568 F.3d 1236 (11th Cir. 2009) ......................................................................... 19
United States v. Tankersley,
492 F.2d 962 (7th Cir. 1974) ................................................................. 19–20, 22
United States v. Taylor,
728 F.2d 864 (7th Cir. 1984) ............................................................................. 28
United States v. Tompkins,
782 F.3d 338 (7th Cir.),
cert. denied, No. 14-10473, 2015 U.S. App. LEXIS 6928 (Nov. 2, 2015)......... 23
United States v. Tribunella,
749 F.2d 104 (2d Cir. 1984) .............................................................................. 28
United States v. Urban,
140 F.3d 229 (3d Cir. 1998) .............................................................................. 19
Weiss v. Nat’l Westminster Bank P.L.C.,
768 F.3d 202 (2d Cir. 2014) .............................................................................. 36
UNITED STATES DISTRICT COURT CASES
United States v. Al-Arian,
308 F. Supp. 2d 1322 (M.D. Fla. 2004) ........................................... 39–40, 47–48
United States v. Davis,
313 F. Supp. 710 (D. Conn. 1970) ..................................................................... 19
United States v. Warsame,
537 F. Supp. 2d 1005 (D. Minn. 2008) .............................................................. 48
United States v. Worstine,
803 F. Supp. 663 (N.D. Ind. 1992) .................................................................... 21
x
TABLE OF AUTHORITIES—continued
Page(s)
STATUTES
Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, 110 Stat. 1247 ........................................................... 33–34
National Firearms Act of 1934,
Pub. L. No. 73-474, 48 Stat. 1236 ..................................................................... 16
18 U.S.C. § 2339A (2012) ......................................................................................... 1, 44
18 U.S.C. § 2339A(b)(1) (2012) .................................................................................... 44
18 U.S.C. § 2339B (2012) ............................................................. 1, 9, 13, 33–41, 43–48
18 U.S.C. § 2339B(a)(1) (2012) .............................................................................. 34, 46
18 U.S.C. § 2339B(g)(4) (2012) .................................................................................... 44
18 U.S.C. § 2339B(i) (2012) ................................................................................... 35, 38
26 U.S.C. §§ 2801–5872 (2012) .................................................................................... 17
26 U.S.C. § 5845 (2012) ................................................................................................. 1
26 U.S.C. § 5845(f) (2012) ............................................................................................ 21
26 U.S.C. § 5845(f)(1) (2012) ......................................................... 11–12, 17, 19–20, 22
26 U.S.C. § 5845(f)(2) (2012) ......................................................... 11–12, 17, 19–20, 22
26 U.S.C. § 5845(f)(3) (2012) .................................... 9, 11–12, 16–21, 23, 26–28, 32–33
26 U.S.C. § 5861 (2012) ................................................................................................. 1
26 U.S.C. § 5861(a)–(f) (2012) ..................................................................................... 17
26 U.S.C. § 5861(d) (2012) ................................................................... 12, 17, 28, 31–32
26 U.S.C. § 5861(f) (2012) ................................................................ 9, 11–12, 17, 32–33
26 U.S.C. § 5861(j) (2012) ............................................................................................ 17
xi
TABLE OF AUTHORITIES—continued
Page(s)
28 U.S.C. § 1254(1) (2012) ............................................................................................. 1
28 U.S.C. § 1291 (2012) ................................................................................................. 1
28 U.S.C. § 1331 (2012) ................................................................................................. 1
OTHER AUTHORITIES
1 Bishop, Criminal Law § 287 (9th ed. 1930) ............................................................. 14
Andrew Peterson, Addressing Tomorrow’s Terrorists,
2 J. Nat’l Security L. & Pol’y 297 (2008) .......................................................... 33
Actual Possession, Black’s Law Dictionary (5th ed. 1979)......................................... 28
Brief for the Respondents, Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) (Nos. 08-1498, 09-89),
2009 U.S. S. Ct. Briefs LEXIS 1589 ................................................................. 44
Francis Bowes Sayre, Mens Rea, 45 Harv. L. Rev. 974 (1932) .................................. 14
James P. Fantetti, John Walker Lindh, Terrorist? Or Merely a Citizen
Exercising His Constitutional Freedom: The Limits of the Freedom
of Association in the Aftermath of September Eleventh,
71 U. Cin. L. Rev. 1373 (2003) .......................................................................... 36
Jean-Yves Meyer, The Basin of the Danaides: How 3-D Printing
Will Push the Limits of International Gun Control and
Digital Freedom of Speech in the Twenty-First Century,
41 Denv. J. Int’l L. & Pol’y 555 (2013) ....................................................... 16–17
Material, Webster’s Third New International Dictionary (1961) .............................. 44
S. Rep. No. 90-1501 (1968) .......................................................................................... 17
xii
OPINIONS BELOW
The opinion of the United States District Court for the Central District of New
Tejas is unreported. The record provides the unpublished opinion of the United States
Court of Appeals for the Fourteenth Circuit in Borne v. United States, No. 15-1359
(14th Cir. Oct. 1, 2015), cert. granted, No. C15-1359-1 (Oct. 2015). R. at 2–27.
STATEMENT OF JURISDICTION
The United States District Court for the Central District of New Tejas had
original federal question jurisdiction over this action under 28 U.S.C. § 1331 (2012)
because this case arises under two federal statutes: 26 U.S.C. § 5845 (2012) and 18
U.S.C. § 2339B (2012). R. at 1. The district court convicted the petitioner under both
statutes and she appealed this final judgment to the Fourteenth Circuit Court of
Appeals. R. at 2. The Fourteenth Circuit had jurisdiction over this case under 28
U.S.C. § 1291. In a split decision issued on October 1, 2015, the Fourteenth Circuit
affirmed the petitioner’s convictions. R. at 2. The petitioner then filed a timely
petition for a writ of certiorari, which this Court granted. R. at 1. This Court has
jurisdiction over this case under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
This cases involves the construction and application of 18 U.S.C. §§ 2339A,
2339B and 26 U.S.C. §§ 5845, 5861, which are reproduced in the Appendix along with
the relevant constitutional provisions: the First and Fourteenth Amendments to the
United States Constitution, U.S. Const. amends. I, XIV.
1
STATEMENT OF THE CASE
Statement of Facts
In just a few short months, Miss Emmaline Borne’s intellectual curiosity
changed her life dramatically—from being a promising student to a prison inmate. In
the fall of 2011, Miss Borne was beginning her final year at Harrisburg High School
in Harrisburg, New Tejas. R. at 2. She was a bright student and planned to study
computer programming at New Tejas State University after graduating from high
school. R. at 5. When her physics teacher, Mrs. Adalida Ascot, approached her about
attending a summer pre-college program known as “Technical Promise,” Miss Borne
eagerly sought out more information. R. 3–4. Designed to encourage promising
students to pursue degrees in science, technology, engineering, and mathematics,
Technical Promise is a summer program offered by the University of Misthallery in
the European nation of Azran in conjunction with New Tejas State University. R. at
2–3.
After meeting with Mrs. Ascot to discuss the program and consulting with her
parents, Miss Borne decided to apply to Technical Promise. R. at 3. Another
Harrisburg High School senior, Fiona Triton, also attended this initial meeting to
learn about Technical Promise. R. at 2–3. Miss Triton decided to apply to the program
as well because she planned to pursue a degree in chemical engineering. R. at 3–4.
As a result of their common interests, Miss Borne and Miss Triton soon became good
friends. Id. Both girls obtained early acceptance to New Tejas State University and
were admitted into the honors dorm. R. at 4.
2
In November of 2011, the girls completed their Technical Promise applications,
each of which contained a “glowing” recommendation from Mrs. Ascot. Id. Shortly
thereafter, Miss Borne began meeting one-on-one with Mrs. Ascot, who had
volunteered to teach Miss Borne how to program in C++, a skill that would give Miss
Borne an advantage in college. Id. In these meetings, Miss Borne also talked with
Mrs. Ascot about internet culture, computer games, and future career options. Id.
Miss Borne learned that she and Mrs. Ascot enjoyed playing a popular online
computer game known as “Wars of the Masquerade” (WOM), and Miss Borne agreed
to join Mrs. Ascot’s WOM guild. R. at 3–4. In February of 2012, Miss Triton and Miss
Borne were accepted into Technical Promise. R. at 4–5.
In April of 2012, Miss Borne was attending a sleepover at Miss Triton’s house
when she discovered that Miss Triton’s father, Hershel Triton, had recently
purchased a do-it-yourself 3D printing kit. R. at 6–7. Mr. Triton purchased the 3D
printer to help him invent a flexible but durable new plastic filament that he could
sell online to help fund his retirement. R. at 7. Despite Mr. Triton’s experience as a
chemical engineer for a major American weapons manufacturer, he struggled with
using the 3D printing software. Id. Upon learning this, Miss Borne readily offered to
assist Mr. Triton in exchange for his permission to use the printer to create a 3D
model of her WOM character; Mr. Triton assented. Id. After looking at the 3D printer
code, Miss Borne discovered an error that caused the machine to render an imperfect
curve. Id. After trying but failing to fix the code, Miss Borne went to Mrs. Ascot for
3
help. R. at 8. When Mrs. Ascot offered to take the code home and fix it, Miss Borne
readily agreed. Id.
Throughout their meetings, Miss Borne and Mrs. Ascot also discussed the
ethics of being a “White Hat Hacker” in light of a recent hack performed by a wellknown hacktivist duo named “Dixie Millions.” R. at 5, 7–8. The hack exposed that the
WOM developers had been illegally selling their user lists to third-party advertisers.
R. at 7–8. The U.S. Secretary of State declared Dixie Millions a foreign terrorist
organization (FTO) on December 30, 2011, shortly after Clive Allen, a former NSA
consultant who specialized in database design and management, illegally released
millions of stolen NSA documents to the Darknet using The Onion Router (TOR).1 R.
at 5. Revealing himself to be “Millions” of Dixie Millions, Mr. Allen released the
documents and disappeared. Id. United States law enforcement agencies mounted a
nationwide manhunt for Mr. Allen, but failed to locate him after weeks of searching.
Id. For several more months, Dixie Millions regularly released private documents
over the internet. R. at 5–6. Then, in a video released on March 20, 2012, Millions
announced his intent to retire from Dixie Millions. R. at 6. Since retiring, Mr. Allen
has taken asylum in Azran, despite the United States’ attempts to extradite him. Id.
To date, the United States has also been unable to locate or identify “Dixie.” Id.
On May 1, 2012, Mrs. Ascot gave the perfected curve code to Miss Borne, who
found that it worked flawlessly when she tested it with the Tritons. R. at 9. A few
days later, Mr. Triton was browsing the internet when he stumbled across plans for
Although the Darknet has been used by hacktivist groups to subvert the law, it also has legitimate
uses, such as providing a more secure way to increase knowledge and global communication. R. at 5.
1
4
designing and printing a plastic 3D-printed handgun. Id. Although Mr. Triton had no
desire to print a firearm for his personal use, he thought the plans might help him
develop a strong and profitable plastic filament able to withstand the heat generated
by firing multiple bullets. Id. He downloaded the plans and saved them onto a goldcolored USB drive. Id.
Several days later, Miss Borne visited the Tritons’ house to again experiment
with the 3D printer. R. at 10. She suggested to Mr. Triton that they print a perfect
cylinder with a thicker raft2 to ensure stability during printing and demonstrate how
well the software worked. Id. They used a commercially available standard plastic
filament and designed a 6 1/2-inch tall, 1/2-inch wide cylinder. Id. Once the cylinder
was complete, Miss Borne was so proud of their work that she asked Mr. Triton if she
could keep the cylinder with raft attached—leaving it unfinished—because it
resembled a “trophy.” Id. Mr. Triton happily agreed. Id. Around the same time, Miss
Triton and her father also worked on creating a stronger plastic filament formula,
but they eventually hit a roadblock. R. at 9–10. Against her father’s wishes, Miss
Triton downloaded the plastic filament formula to a cartoon-robot-shaped USB drive;
she planned to bring the formula to Azran to obtain help from the professors at
Technical Promise. R. at 10.
Near the end of May 2012, Mrs. Ascot met with Miss Triton and Miss Borne
one final time regarding Technical Promise. R. at 9. As she had done many times
The raft is a flat layer of material that is initially printed on the platform of a 3D printer, and is the
base to which the rest of the 3D model adheres. Id. Because the raft is only intended to provide stability
during the printing process, it is generally removed from the 3D model once printing is completed. Id.
2
5
before, Mrs. Ascot praised the girls and encouraged them to “always wear the ‘White
Hat’ and follow their dreams.” Id. Around this time, Miss Borne also began to
research Mr. Allen, in hopes that she might meet and demonstrate her hacking skills
to him while in Azran. R. at 11–12. Because she viewed him as a “White Hat Hacker,”
Miss Borne admired Mr. Allen as a role model for being “a force for good in the
universe.” R. at 11. After researching Mr. Allen’s movements, Miss Borne created a
spreadsheet with every location where he had been spotted in Azran. R. at 11–12.
Miss Borne concluded that he might be at a certain café on June 5, 2012, and placed
a calendar reminder into her smartphone for this date titled “Meet Clive Allen at
Café.” Id. Because Miss Borne had never communicated with Mr. Allen, her only hope
of meeting him was to find him at the café and introduce herself. Id.
In June of 2012, after graduation, Miss Borne and Miss Triton started packing
for their trip to Azran. Id. Miss Triton packed clothes, toiletries, and the cartoonrobot-shaped USB drive containing the plastic filament formula. Id. Miss Borne
packed a duffel bag with clothes, toiletries (including a full-size can of hairspray), a
purple USB drive containing the modified curve code, her plastic 3D-printed cylinder,
and her spreadsheet of Mr. Allen’s activities. R. at 11–13. Unbeknownst to her,
matches had been left in a side pouch of the duffle bag, which the Bornes normally
used for camping trips. Id. In her pocket, she brought a picture of a WOM character,
which she had designed to resemble one of Mr. Allen’s alleged disguises. R. at 11–12.
At the time, Miss Borne planned to show Mr. Allen her spreadsheet, curve code, and
unfinished plastic cylinder to prove her credentials as a “White Hat Hacker.” R. at 12.
6
On June 4, 2012, Mr. Triton drove Miss Borne and Miss Triton to the airport.
R. at 13. He surprised the girls by playing some of their favorite songs, which he had
loaded onto the gold USB drive and plugged into the car radio for the drive. Id.
Although Mr. Triton had previously used the gold USB drive to save the 3D handgun
plans, he testified at trial that he had replaced those plans with the music. Id. He
planned to give the girls the music-filled USB drive as a surprise going-away present.
Id. Less than two miles from the airport, Mr. Triton accidentally rolled through a stop
sign and was pulled over by Officer Smith of the Harrisburg Police Department. R. at
13–14. After running a routine check on Mr. Triton’s license, Officer Smith discovered
an outstanding warrant for Mr. Triton’s arrest because of a speeding ticket that had
not been properly dismissed. R. at 14. Officer Smith arrested Mr. Triton, who was
respectful and polite throughout the encounter, despite being concerned that the girls
would miss their flight to Azran. Id. With Officer Smith’s permission, Mr. Triton
called his wife and asked her to pick up the girls and take them to airport. R. at 14–
15.
While everyone waited for Mrs. Triton, Miss Borne’s smartphone chimed. R. at
15. When Miss Borne pulled out her phone, Officer Smith saw the calendar reminder
“Meet Clive Allen at Café” flash across the screen. Id. This startled Officer Smith
because the Harrisburg Police Department had recently received a memo stating that
Mr. Allen might have an associate in the Harrisburg area. Id. As a result, Officer
Smith immediately mirandized and arrested Miss Triton and Miss Borne on suspicion
of aiding and abetting a known fugitive. Id. After obtaining the requisite search
7
warrants, the police searched Mr. Triton’s vehicle, Miss Borne, Miss Triton, and the
girls’ luggage. R. at 16. In the Tritons’ belongings, the police found the 3D handgun
plans on Mr. Triton’s gold USB drive and the plastic filament formula on Miss
Triton’s cartoon-robot-shaped USB drive. Id. In Miss Borne’s luggage, the police
found the hairspray, matches, purple USB drive containing the curve code, 3Dprinted plastic cylinder, spreadsheet tracking Mr. Allen’s movements, and picture of
the computer-generated Mr. Allen look-alike. Id. The police then turned the
investigation over to the FBI, who discovered, among other things, that Mrs. Ascot
quit her job and quickly disappeared after the girls were arrested. Id. The United
States filed charges against Mr. Triton, Miss Triton, and Miss Borne. Id. At the advice
of counsel, the Tritons accepted plea deals. Id. Miss Borne, however, refused to accept
a plea bargain, stating that she was innocent of the charges filed. Id. She also refused
bail, hoping that her case would proceed quickly through the district court’s docket.
R. at 17.
During Miss Borne’s trial, the FBI produced records of her browsing history on
the Darknet. Id. The FBI admitted that Miss Borne’s Darknet browsing history
indicated she was mainly interested in meeting hacker groups to encourage them to
protect data by only revealing “malicious corporate and government lies that hurt
people” and to prevent hackers from “exploit[ing] bank, financial, and government
security flaws.” Id. The record also reflects that while the FBI strongly suspected that
Mrs. Ascot was Dixie of Dixie Millions, it was not certain of this fact. Id. Miss Borne
8
testified that Mrs. Ascot never identified herself as Dixie, nor did she ever encourage
Miss Borne to meet with Mr. Allen. Id.
Along with re-tweets of pro-Dixie Millions articles, the Government placed into
evidence a tweet from Miss Borne’s Twitter account that stated: “With one wish, I
wish all guns would blow up.#guncontrol.” R. at 18. An FBI ballistics expert also
testified that, in her opinion, the 3D gun plans and plastic filament plans from the
Tritons’ belongings could be used to create a gun that would appear to fire a bullet,
but would actually blow up if fired, causing bodily harm or death to the user and
anyone nearby. Id. The FBI expert also demonstrated that the hairspray, plastic
cylinder, matches, and other miscellaneous items from the girls’ luggage could be
used to create a bomb, and that, in her opinion, a bright teenager might be able to
obtain the knowledge required to create such a device on the internet. Id.
Procedural History
After Miss Borne’s arrest, the Government charged her with making a
“destructive device” in violation of 26 U.S.C. § 5861(f)3 and § 5845(f)(3), and providing
“material support” to an FTO in violation of 18 U.S.C. § 2339B. R. at 15–16, 18.
Following a trial, Miss Borne was convicted on both charges and sentenced to twelve
months’ incarceration for creating a “destructive device” and fifteen years’
incarceration for providing “material support” to Dixie Millions, with the sentences
to run concurrently. R. at 12–13, 18.
The record indicates that the Government charged Miss Borne with “making an explosive device.” R.
at 1. The only portion of the National Firearms Act that prohibits this specific conduct is § 5861(f).
3
9
Miss Borne appealed both convictions to the Fourteenth Circuit Court of
Appeals, which affirmed the convictions, despite a divided opinion. R. at 24. On the
first charge, the Fourteenth Circuit applied a mixed standard to uphold Miss Borne’s
conviction for creating a “destructive device.” R. at 19. The court reasoned that while
the items in Miss Borne’s possession did not objectively constitute a destructive
device, the items combined with her intent created a destructive device. R. at 19–20.
Further, the court found that the items could be readily assembled into a destructive
device and that the gun plans alone constituted a destructive device. R. at 20–21. On
the second charge, the Fourteenth Circuit upheld Miss Borne’s conviction for
providing “material support” to an FTO. R. at 24. The court applied the Humanitarian
Law Project standard to hold that Miss Borne’s actions were coordinated with Dixie
Millions. Even though it failed to provide specific examples of that coordination, the
Fourteenth Circuit reached this result because hackers are a unique version of
terrorists. R. at 23. Miss Borne filed a timely petition for a writ of certiorari to this
Court, which it granted. R. at 1.
SUMMARY OF THE ARGUMENT
The law exists to punish actual crimes, not academic curiosity. In upholding
Miss Borne’s convictions for creating a destructive device and providing material
support to Dixie Millions, the Fourteenth Circuit erred as a matter of law for two
reasons: on the first charge, Miss Borne did not have in her possession items that
could be readily assembled into a destructive device; on the second charge, Miss
10
Borne’s conduct was constitutionally protected and she did not provide material
support to an FTO.
First, the Fourteenth Circuit erred in affirming Miss Borne’s conviction under
26 U.S.C. § 5845(f)(3) and § 5861(f) for making a destructive device. Under § 5845(f)(3),
a combination of parts may constitute a destructive device if the component parts are
designed or intended for use in creating a destructive device as listed under §
5845(f)(1) or § 5845(f)(2) and can be readily assembled into such a device. Whether
subjective intent is relevant in determining the legal nature of the component parts
depends on if the assembled device falls clearly within Subsections (1) and (2). If the
combination of components clearly falls within Subsections (1) or (2) (e.g.,
unassembled grenade or pipe bomb), subjective intent is never relevant. If the
combination of components clearly falls outside of Subsections (1) and (2) (e.g.,
commercial dynamite), subjective intent is sometimes relevant. However, if the
components could be assembled into either a device that clearly falls within
Subsections (1) or (2) or a device that clearly falls outside of Subsections (1) or (2),
subjective intent is always relevant.
Here, subjective intent is relevant because each component listed in Miss
Borne’s indictment has a social or commercial use aside from the potential destructive
use described by the FBI forensics expert. The Government failed to prove at trial
that Miss Borne’s subjective intent was to create a destructive device because the
only evidence offered on this point was a tweet in support of gun control. The
Fourteenth Circuit also incorrectly imputed the intentions of Dixie Millions to Miss
11
Borne because the Government offered no evidence that Dixie Millions directed Miss
Borne’s conduct. Because the Government did not prove that Miss Borne intended to
convert her innocuous items into a destructive device, her conviction for creating a
destructive device was improper.
Moreover, even if the items listed in the indictment were designed or intended
for use as a destructive device, the items in Miss Borne’s possession could not be
readily assembled into a destructive device. Conviction under Subsection (3) is only
proper if the defendant has in her possession every essential element of a destructive
device. Under either an actual or constructive possession theory, Miss Borne did not
possess any of the requisite combinations of items that either the Government’s
forensic expert or the Fourteenth Circuit stated could form a destructive device
within Subsections (1) and (2).
Alternatively, Miss Borne did not have the requisite level of mens rea to be
convicted under § 5861(f), which requires that the defendant know that the items in
her possession could be readily assembled into a prohibited device under the statute.
This Court has consistently held that strict liability does not apply to criminal
statutes unless the statute explicitly requires it or the public welfare offense
exception applies. Because this Court has refused to apply the public welfare offense
exception to § 5861(d), it should not apply a strict liability standard to Miss Borne’s
conviction under § 5861(f). Therefore, under any theory of liability, the Government
improperly charged Miss Borne under §§ 5845(f)(3), 5861(f), and her conviction
should be reversed.
12
Second, the Fourteenth Circuit erred in affirming Miss Borne’s conviction
under 18 U.S.C. § 2339B for providing an FTO with material support. Although
ensuring national security is a compelling interest, § 2339B is not narrowly tailored
to advance that interest when applied to Miss Borne’s case. Indeed, the application
of § 2339B violated Miss Borne’s rights to free speech, free association, and due
process. But even if the statute is constitutional as applied, Miss Borne’s conviction
was still improper because she did not attempt to provide material support to an FTO.
Here, this Court should require knowledge or intent that a defendant’s
activities will likely be used to support an FTO’s unlawful objectives. This approach
best comports with nearly a century of unquestioned precedent from this Court that
the First Amendment protects the right to associate for peaceful purposes and express
ideas. Under this approach, Miss Borne’s conviction was improper because she only
intended to further the lawful purpose of protecting data—a fact acknowledged by
the Government’s witnesses. Yet, even requiring direction by or coordination with an
FTO, which criminalizes any coordinated or directed support for unlawful or lawful
purposes, Miss Borne’s conviction still violated her rights to free speech and
association because she never communicated with Millions and she was unaware of
Dixie’s identity. Thus, under any approach, Miss Borne’s conviction violated her
speech and association rights.
Furthermore, Miss Borne’s conviction also violated her right to due process
because an ordinary individual would not realize that conduct such as hers
constituted material support. In the past, the Government has used the material
13
support statute to prosecute individuals who provided weapons, money, personnel, or
professional training to terrorist organizations such as Al-Qaiada, Hamas, FARC,
and other terrorist organizations. Miss Borne’s conduct is distinguishable because
she merely wanted to show a retired hacker a plastic 3D-printed cylinder and a curve
code. Thus, she lacked fair notice that her conduct was criminal, so her conviction
violated her right to due process.
Alternatively, even if the material support statute is constitutional as applied,
Miss Borne’s conviction is still improper because she did not provide material support
to an FTO. At most, she wanted to solicit support from Mr. Allen, rather than to
provide support to Dixie Millions. Yet, even assuming Miss Borne intended to provide
material support to Mr. Allen, her conduct still did not violate the statute because
Mr. Allen is only a retired member of an FTO. He is not an FTO himself. Therefore,
this Court should reverse the Fourteenth Circuit’s decision on both convictions.
ARGUMENT
“There can be no crime, large or small, without an evil mind. . . . It is therefore
a principle of our legal system . . . that the essence of an offence is the wrongful intent,
without which it cannot exist.” Francis Bowes Sayre, Mens Rea, 45 Harv. L. Rev. 974
(1932) (quoting 1 Bishop, Criminal Law § 287 (9th ed. 1930)). While the threat of
modern terrorism is distressing, the rule of law should not operate out of terror. To
sentence an academically curious eighteen-year-old girl to fifteen years in prison for
the mere potential of harmful conduct is not the purpose of the law. Instead of
14
criminalizing intellectual curiosity, the law should prevent real terrorists threatening
actual harm.
To further this aim, courts should carefully scrutinize criminal statutes. See
United States v. Bass, 404 U.S. 336, 350–51 (1971). “[T]he definition of the elements
of a criminal offense is entrusted to the legislature, particularly in the case of federal
crimes, which are solely creatures of statute.” Liparota v. United States, 471 U.S. 419,
424 (1985). Any statutory construction inquiry should therefore begin by looking to
the language of the statute, Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54
(1992), and “[i]f the statutory language is unambiguous, in the absence of ‘a clearly
expressed legislative intent to the contrary, that language must ordinarily be
regarded as conclusive.’” Russello v. United States, 464 U.S. 16, 20 (1983) (quoting
United States v. Turkette, 452 U.S. 576, 580 (1981)).
“[B]ecause of the seriousness of criminal penalties, and because criminal
punishment usually represents the moral condemnation of the community,” Bass, 404
U.S. at 348, this Court has long recognized the principle that ambiguity in a criminal
statute should be resolved in favor of lenity, Rewis v. United States, 401 U.S. 808,
812 (1971); United States v. U.S. Gypsum Co., 438 U.S. 422, 437 (1978); Bell v. United
States, 349 U.S. 81, 83 (1955). The rule of lenity ensures that individuals receive
adequate notice of conduct deemed illegal and “strikes the appropriate balance
between the legislature, the prosecutor, and the court in defining criminal liability.”
Liparota, 471 U.S. at 427. Because issues of statutory construction and constitutional
interpretation raise pure questions of law, Chandris, Inc. v. Latsis, 515 U.S. 347, 369
15
(1995), the standard of review in this case is de novo. Highmark, Inc. v. Allcare Health
Mgmt. Sys., 134 S. Ct. 1744, 1748 (2014).
Here, the Fourteenth Circuit erred as a matter of law in affirming Miss Borne’s
conviction for two reasons. First, the Fourteenth Circuit incorrectly upheld Miss
Borne’s conviction for making a destructive device because the components listed in
her indictment did not constitute and could not be readily assembled into a
destructive device and, alternatively, she did not have the requisite level of mens rea.
Second, the Fourteenth Circuit incorrectly held that Miss Borne provided material
support to an FTO because the material support statute is unconstitutional as
applied to her and, even if constitutional, she did not provide material support to
Dixie Millions within the meaning of the statute.
I. THE FOURTEENTH CIRCUIT ERRED AS A MATTER OF LAW IN AFFIRMING MISS
BORNE’S CONVICTION UNDER 26 U.S.C. § 5845(F)(3) BECAUSE THE ITEMS IN HER
POSSESSION DID NOT CONSTITUTE AND COULD NOT BE READILY ASSEMBLED
INTO A DESTRUCTIVE DEVICE.
In an effort to curb gun violence, Congress passed the National Firearms Act
of 1934, which imposed strict regulation and taxation requirements on the use of
highly dangerous firearms. Pub. L. No. 73-474, 48 Stat. 1236; see also Jean-Yves
Meyer, The Basin of the Danaides: How 3-D Printing Will Push the Limits of
International Gun Control and Digital Freedom of Speech in the Twenty-First
Century, 41 Denv. J. Int’l L. & Pol’y 555, 563–64 (2013). Because the National
Firearms Act was intended to regulate “gangster weapons,” it originally applied only
to machineguns, sawed-off shotguns, and other statutorily-defined “firearms.” Supra
Meyer, at 564. In response to the shootings of President John F. Kennedy, Dr. Martin
16
Luther King, Jr., and Senator Robert Kennedy, Congress amended the National
Firearms Act, codified at 26 U.S.C. §§ 2801–5872, to include bombs and other
“destructive devices.” Supra Meyer, at 563–64. This expansion was intended to limit
the possession and manufacture of “military-type weapons, such as bazookas,
mortars, and antitank guns.” S. Rep. No. 90-1501, at 25 (1968).
In addition to prohibiting the delivery, § 5861(j), or possession, § 5861(d), of
unregistered “firearms,” the National Firearms Act also criminalizes making a
firearm, § 5861(f), which includes certain shotguns, rifles, machineguns, other
“weapons,” and “destructive devices.” § 5845(a)–(f). Section 5845(f) specifically limits
the term “destructive device” to three distinct categories:
(1) any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C)
rocket . . . , (D) missile . . . , (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 . . . ; [or] (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.
Id. Under Subsection (3), “the components or parts of a device are subject to the law
if the assembled device would be” subject to the law. United States v. Posnjak, 457
F.2d 1110, 1116 (2d Cir. 1972). Notably, Subsection (3) does not broaden the group of
devices included in Subsections (1) and (2), but “merely precludes evasion through
possession of the unassembled components [of a device under Subsections (1) and (2)]
instead of the assembled item.” Id. To obtain a conviction under Subsection (3), the
Government must prove that the combination of parts is “designed or intended for
use in converting any device into a destructive device as defined in [Subsections] (1)
17
and (2)” and also that a destructive device could be “readily assembled” from those
component parts. § 5845(f)(3). The term “destructive device” excludes “any device
which is neither designed nor redesigned for use as a weapon.” Id.
Here, the Fourteenth Circuit erred as a matter of law in upholding Miss
Borne’s conviction for making a destructive device for three reasons. First, the
components listed in Miss Borne’s indictment were neither “designed” nor “intended
for use” in creating a destructive device. Second, the items found in Miss Borne’s
possession could not be “readily assembled” to create a destructive device. Third, even
if those components could be readily assembled into a destructive device, Miss Borne
did not know that the items in her possession violated the statute.
A. The Components Listed in Miss Borne’s Indictment were Neither “Designed”
Nor “Intended” to Create a Destructive Device.
Section 5845(f)(3) prohibits making a destructive device from any combination
of component parts that are “designed or intended for use in converting any device
into a destructive device.” § 5845(f)(3). To violate this Section, the combination of
component parts must form a device that is both “explosive” and designed or intended
“for use as a weapon.” United States v. Hammond, 371 F.3d 776, 780 (11th Cir. 2004)
(“[A] device that explodes is not covered by [§ 5845(f)(3)] merely because it explodes.”).
Such a limitation is pivotal because modern explosives involve not only obviously
hazardous materials, but also seemingly innocuous items. See, e.g., United States v.
Hamrick, 43 F.3d 877, 879 (4th Cir. 1995) (pipe bomb created with a nine-volt battery,
steel wires, cigarette lighters, and lip balm); United States v. Markley, 567 F.2d 523,
524 (1st Cir. 1977) (pipe bomb created with cardboard tubes, toilet tissue, paraffin
18
wax, black powder, and a fuse); United States v. Tankersley, 492 F.2d 962, 966–67
(7th Cir. 1974) (Molotov cocktail created with a bottle, firecracker, tape, and paint
remover); United States v. Davis, 313 F. Supp. 710, 714 (D. Conn. 1970) (Molotov
cocktail created with bottles, cotton, and gasoline).
Accordingly, many circuit courts have determined that subjective intent may
be relevant in determining the legal nature of the component parts under Subsection
(3) depending on whether the assembled device falls clearly within Subsections (1)
and (2). 4 See United States v. Spoerke, 568 F.3d 1236, 1247–48 (11th Cir. 2009)
(collecting cases). Most circuits agree that when the combination of parts falls clearly
within Subsections (1) and (2), such as the unassembled components of an incendiary
bomb, grenade, or other gangster-type weapon that has no legitimate social purpose,
the defendant’s subjective intent is irrelevant. E.g., United States v. Johnson, 152
F.3d 618, 625 (7th Cir. 1998); United States v. Urban, 140 F.3d 229, 234 (3d Cir.
1998); see United States v. Lussier, 128 F.3d 1312, 1317 (9th Cir. 1997); United States
v. Price, 877 F.2d 334, 337 (5th Cir. 1989). Such an approach relies on the literal text
of § 5845(f)(3), in which the disjunctive word “or” separates “designed” and “intended,”
to hold that a defendant can create a destructive device by either design or intent.
Johnson, 152 F.3d at 625.
When the components clearly fall outside Subsections (1) and (2), such as with
commercial explosives, the circuits are split on whether subjective intent is relevant.
4
Although the Fourteenth Circuit referred to the “objective,” “subjective,” and “mixed” standards,
Borne, No. 15-1359, at *18–19; id. at *24–25 (Morgan, J., dissenting), the better approach is more
nuanced.
19
Compare United States v. Greer, 588 F.2d 1151, 1154–55 (6th Cir. 1978) (stating that
commercial explosives could be converted into a destructive device if intended for use
as a bomb, even though such explosives fall outside of Subsections (1) and (2)), and
Burchfield v. United States, 544 F.2d 922, 924 (7th Cir. 1976) (same), and United
States v. Morningstar, 456 F.2d 278, 281 (4th Cir. 1972) (same), and United States v.
Oba, 448 F.2d 892, 893–94 (9th Cir. 1971) (same), with Posnjak, 457 F.2d at 1119
(holding that subjective intent is irrelevant because a device composed of dynamite,
fuses, and caps clearly falls outside of Subsections (1) and (2)), and Borne, No. 151359, at *24–25 (Morgan, J., dissenting) (applying the standard in Posnjak). However,
the circuits to consider the issue are uniform in holding that intent is relevant in
determining the legal nature of the combined component parts when the components
create a device that could either fall within Subsections (1) and (2) or outside of the
statute. See Hammond, 371 F.3d at 781; United States v. Reindeau, 947 F.2d 32, 35
(2d Cir. 1991); Tankersley, 492 F.2d at 966; United States v. Peterson, 475 F.2d 806,
811 (9th Cir. 1973); Morningstar, 456 F.2d at 282.
Here, the components listed in Miss Borne’s indictment were not designed or
intended to create a destructive device and thus her conviction under § 5845(f)(3) was
improper for two reasons. First, because the component parts could be used for either
destructive or commercial purposes, this Court should consider Miss Borne’s
subjective intent in determining whether they constituted components of a
destructive device. Second, the Government failed to prove at trial that Miss Borne
possessed the requisite intent to convert the components into a destructive device.
20
1. This Court Should Consider Miss Borne’s Subjective Intent In Determining
Whether The Components Listed In Her Indictment Constituted A
Destructive Device.
Many courts have found that § 5845(f) was intended to apply only to “clearly
identifiable weapons which were the cause of increasing violent crime and which had
no lawful purpose.” Posnjak, 457 F.2d at 1116. While the subjective intent of a user
with a “clearly identifiable weapon” is irrelevant, the subjective intent of a user is
crucial if § 5845(f)(3) is applied to homemade devices because each component part
often possesses a social utility. See Johnson, 152 F.3d at 624. In determining whether
a device is objectively designed for use as a weapon, courts consider expert testimony
regarding the device’s legitimate uses, see Reindeau, 947 F.2d at 36, and whether the
propensities of the materials used are particularly harmful, Hammond, 371 F.3d at
780 (noting that devices composed of galvanized metal or designed to include small
metal pieces are more like destructive devices than those composed of cardboard and
devoid of hard projectiles). When a device is not objectively designed as a weapon,
courts look to the defendant’s subjective intent as part of the “‘totality of the
circumstances,’” United States v. Copus, 93 F.3d 269, 273 (7th Cir. 1996) (quoting
United States v. Worstine, 803 F. Supp. 663, 669 (N.D. Ind. 1992)), asking ultimately
“whether the device, as designed, has any value other than as a weapon,” Hammond,
371 F.3d at 781.
For example, in United States v. Reed, the Ninth Circuit held that “paperwrapped, gasoline-filled beverage cans, with holes punctured in the tops” were not
clearly designed as destructive devices because “it would have been difficult and
21
dangerous for a person to hold such a can, ignite the paper and then successfully use
or throw the can without serious harm to himself.” 726 F.2d 570, 576 (9th Cir. 1984).
In contrast, the Seventh Circuit held in United States v. Johnson that a device
“consisting of plastic pipe, wax end caps, flash (firecracker) powder, . . . cannon/hobby
fuse, and . . . an assortment of nails” was objectively designed as a destructive device
because although the firecracker had “a useful social and commercial purpose” on its
own, it had no legitimate social use when combined with metal shrapnel. 152 F.3d at
621, 627.
Here, the components at issue do not clearly fall within Subsections (1) and (2)
because the components, both individually and combined, have a social utility apart
from their potentially destructive use, and therefore could be used for either
destructive or innocuous purposes. Although it is unclear which items were used to
support Miss Borne’s conviction, the courts below pointed to a number of items that
could have been used to create a destructive device, including: (1) the gold USB drive
containing the 3D-printed firearm plans; (2) the cartoon-robot-shaped USB drive
containing the plastic filament formula; (3) the purple USB drive containing the curve
code; (4) the 3D-printed cylinder; (5) matches; (6) hairspray; and (7) other
miscellaneous items. R. at 16, 18. Household items such as hairspray, matches, and
other miscellaneous items have been recognized as possessing an independent social
utility. See Tankerskley, 492 F.2d at 966. In addition, each of the USB drives, the
data contained therein, and the 3D-printed cylinder have independent commercial
purposes. Even when combined, these components create devices that can serve
22
either a legitimate or destructive purpose. As the FBI ballistics expert testified, the
3D gun plans and plastic filament formula could be combined to create a handgun
that would blow up when fired. R. at 18. Yet, such a handgun could also be sold as a
3D handgun for commercial profit, as evidenced by Mr. Triton’s plans to do just that.
R. at 9.
Because these component parts have social purposes, both individually and
when combined, “a reasonable factfinder ‘could not have found beyond a reasonable
doubt that [the commercially available components] were in fact designed or used as
weapons.’” United States v. Fredman, 833 F.2d 837, 840 (9th Cir. 1987) (alteration in
original) (emphasis added) (quoting Reed, 726 F.2d at 576). Thus, this Court should
evaluate Miss Borne’s subjective intent in determining whether the components
listed in her indictment constituted a destructive device under § 5845(f)(3).
2. The Government Failed To Prove That Miss Borne’s Subjective Intent Was
To Create A “Destructive Device.”
Subjective intent can be confirmed by the defendant’s words or actions, Oba,
448 F.2d at 892 (noting that the defendant “admitted that the purpose of the device
was to bomb and destroy the property of others”), or by other circumstantial evidence
of intent, Fredman, 833 F.2d at 839–40 (analyzing the circumstances surrounding
the seizure of the device). Although evidence of a benign purpose can rebut evidence
of a malignant purpose, asserting that a malfunctioning explosive device was only
intended as a “hoax,” United States v. Tompkins, 782 F.3d 338, 343 (7th Cir.), cert.
denied, No. 14-10473, 2015 U.S. App. LEXIS 6928 (Nov. 2, 2015), or to “scare,” United
States v. La Cock, 366 F.3d 883, 885, 888–89 (10th Cir. 2004), is an insufficient
23
rebuttal. Here, the Government failed to prove that Miss Borne harbored the intent
to create a destructive device for two reasons: the record is devoid of evidence of her
intent to use the device as a weapon, and the Fourteenth Circuit improperly imputed
the intentions of Dixie Millions to Miss Borne.
First, Miss Borne’s case is unlike many cases in which the requisite subjective
intent is found because the defendant explicitly confesses his desire to use the device
as a weapon. See Hamrick, 43 F.3d at 879; United States v. Blackwell, 946 F.2d 1049,
1050–51 (4th Cir. 1991); Oba, 448 F.2d at 894. For instance, in United States v. Oba,
the Ninth Circuit found that the defendant possessed the requisite subjective intent
to demonstrate that a device made of seven sticks of dynamite, fuse, blasting caps,
and copper wire was a destructive device. 448 F.2d at 894. The defendant not only
pleaded guilty to the offense, but also stated that “his intent was to dynamite the City
of Eugene, Oregon and . . . to bomb and destroy the property of others,” and
transferred the device to someone else with instructions to follow through with the
detonation. Id.
However, Miss Borne’s case is distinguishable from Oba and cases like it
because she never confessed a desire to use any of the items listed in the indictment
as a weapon, nor did she plead guilty to the charge at issue. R. at 16–17. Indeed, the
record is devoid of facts even suggesting that she possessed the intent to use the
components as a weapon. The record indicates that Miss Borne’s only interest in the
3D printer began as a result of her desire to print a 3D model of her WOM character,
which motivated her to develop a curve code that would help the 3D printer make a
24
perfect curve. R. at 7–8. The record does not indicate that Miss Borne was even aware
of, much less intended to participate in, Mr. Triton’s plans to construct a 3D firearm.
See R. at 9–10, 16. Further, the record contains no evidence that Miss Borne even
knew that Mr. Triton had viewed or downloaded the 3D handgun plans. Id. Indeed,
the only evidence that the Fourteenth Circuit cited to indicate that Miss Borne
intended to use the items as a weapon is a tweet written in the passive voice in which
she stated: “With one wish, I wish all guns would blow up.#guncontrol.” R. at 18. This
tweet, however, does not demonstrate anything other than a passive desire to reduce
violence, and certainly does not demonstrate any intent to convert the items found in
her possession at the time of her arrest into a destructive device. See infra Section
II.A.1.
Instead, Miss Borne’s case is more like United States v. Fredman, in which the
Ninth Circuit held that “two bundles of commercial detonator cord, three commercial
detonator fuses, and two commercial igniters” found in an open safe did not constitute
a destructive device because any “compelling indicia of criminal intent [was]
markedly absent.” 833 F.2d at 837, 840. In so holding, the court distinguished
Fredman from United States v. Loud Hawk, 628 F.2d 1139, 1142 (9th Cir. 1979),
overruled on other grounds by United States v. Grace, 526 F.3d 499 (9th Cir. 2008),
stating that the component parts in Fredman were not “accompanied by ‘bombmaking equipment[]’ [or] . . . any other indicia of intent to use as a weapon.” 833 F.2d
at 839–40 (quoting Loud Hawk, 628 F.2d at 1142). The court noted that holding that
subjective intent was present in the absence of such factors would lead to the
25
absurdity that an individual could be convicted under § 5845(f)(3) for simply storing
a closed container of gasoline in their garage. Id. at 839.
Second, the Fourteenth Circuit incorrectly considered the intentions of Dixie
Millions, in light of their classification as an FTO by the U.S. State Department, and
Mr. Allen in determining Miss Borne’s subjective intent. R. at 20. However, even the
cyberterrorist intentions of Dixie Millions or Mr. Allen cannot be imputed to Miss
Borne because her conduct was not directed by either party.
In United States v. Blackwell, the Fourth Circuit extended the subjective
intent requirement to the intentions of third parties. 946 F.2d at 1053–54. In
Blackwell, the defendant possessed the component parts necessary to create a bomb,
but claimed that he did not intend to use the bomb for destructive purposes. Id.
However, the evidence presented at trial showed that the defendant had been asked
to provide explosive materials to an individual wishing to blow up an Outlaw
Motorcycle Club clubhouse. Id. The Fourth Circuit held that this was sufficient under
§ 5845(f)(3), stating that “the requisite intent is present” when an individual “intends
that a third party will use the components to construct a destructive device for use as
a weapon.” Id. at 1054.
Miss Borne’s case is distinguishable from Blackwell, in which the defendant’s
actions were directed by a third party, because in this case, any actions taken by Miss
Borne were the result of her own academic curiosity and were not directed by Dixie
Millions or Mr. Allen. See infra Section II.A. The record is devoid of any evidence that
Miss Borne knowingly contacted any member of Dixie Millions. Moreover, even if the
26
intent of Dixie Millions could be imputed to Miss Borne, the Government failed to
demonstrate that Dixie Millions had any violent objectives beyond cyberterrorism, or
that Dixie Millions intended that Miss Borne convert the items found in her
possession into a destructing device. See R. at 5–9. In addition, Miss Borne viewed
the plastic cylinder as a “trophy” of her work on the curve code, and wanted to bring
both to Mr. Allen merely to showcase her skills as a hacker. R. at 12.
The record contains no evidence that Miss Borne intended to use any of the
component parts for destructive purposes or that her actions were directed by Dixie
Millions or Mr. Allen. Further, the haphazard combination of components fails to
suggest that Miss Borne intended to use the components for anything other than
innocuous purposes. For these reasons, the Government failed to prove that Miss
Borne’s subjective intent was to create a destructive device.
B. Alternatively, The Items In Miss Borne’s Possession Could Not Be Readily
Assembled To Form A Destructive Device.
The Government can obtain a conviction under § 5845(f)(3) only if it proves
that the component parts can be “readily assembled” to create a destructive device.
§ 5845(f)(3). Although a device need not be operational in order to qualify under
§ 5845(f)(3), United States v. Rushcamp, 526 F.2d 1380, 1382 (6th Cir. 1975), the
defendant must “possess every essential part necessary to construct a destructive
device,” United States v. Blackburn, 940 F.2d 107, 110 (4th Cir. 1991) (holding that
twenty-eight grenades did not qualify as destructive devices under § 5845(f)(3) when
they lacked the black powder required to make the grenades explode and the
Government did not prove that the defendant possessed the requisite powder); see
27
also United States v. Malone, 546 F.2d 1182, 1183–84 (5th Cir. 1977) (holding that a
hand grenade, wires, electrical switches, a battery, nails, and other household
materials did not constitute a destructive device because the Government did not
prove that the defendant was in possession of the explosive material required to make
the device explode).
Although there is no clear consensus amongst the circuits regarding whether
actual or constructive possession is sufficient under § 5845(f)(3), compare Malone,
546 F.2d at 1184 (stating that constructive possession of every essential element is
sufficient), with Hamrick, 43 F.3d at 884 (stating that actual possession of every
essential element is required), § 5861(d) of the National Firearms Act, which
prohibits possessing an unregistered firearm, permits both actual and constructive
possession. E.g., United States v. Introcaso, 506 F.3d 260, 270–71 (3d Cir. 2007);
United States v. Jackson, 124 F.3d 607, 610 (4th Cir. 1997); United States v.
Tribunella, 749 F.2d 104, 111 (2d Cir. 1984); United States v. Taylor, 728 F.2d 864,
868 (7th Cir. 1984). In contrast to actual possession, which occurs “when a person has
direct physical control over a thing,” Henderson v. United States, 135 S. Ct. 1780,
1785 (2015) (citing Actual Possession, Black’s Law Dictionary (5th ed. 1979)),
constructive possession is only present when an individual “knowingly has the power
and the intention at a given time to exercise dominion and control over an object,”
Tribunella, 749 F.2d at 111.
The constructive possession requirement is intended to prevent defendants
from evading the law by transferring contraband to accomplices while maintaining
28
control over their illegal items. Henderson, 135 S. Ct. at 1784–85. Thus, mere
proximity or presence is insufficient to establish constructive possession. Introcaso,
506 F.3d at 271; see also United States v. Jenkins, 981 F.2d 1281, 1283 (D.C. Cir.
1992); United States v. Behanna, 814 F.2d 1318, 1320 (9th Cir. 1987); United States
v. Sizemore, 632 F.2d 8, 13 (6th Cir. 1980). Although knowledge and intent may be
inferred when the defendant has exclusive control of the premises, United States v.
Rodriguez, 761 F.2d 1339, 1341 (9th Cir. 1985), “mere presence as a passenger in a
car from which the police recover weapons does not establish possession,” United
States v. Soto, 779 F.2d 558, 560 (9th Cir. 1986); see also United States v. Flenoid,
718 F.2d 867, 868 (8th Cir. 1983).
Under an actual or constructive possession standard, the items in Miss Borne’s
possession could not be readily assembled to form a 3D-printed handgun or a bomb.
First, Miss Borne did not have actual or constructive possession of the essential
elements of a 3D-printed firearm because she was only in actual possession of the
items contained in her duffle bag—matches, hairspray, the curve code and plastic
cylinder, and other miscellaneous items. R. at 12–13. Although the ballistics expert
testified that a 3D-printed firearm could be constructed from the 3D gun plans and
plastic filament formula, 5 Miss Borne did not have actual possession of either of these
items. R. at 18. In addition, Miss Borne lacked the knowledge and control required to
establish constructive possession of the 3D gun plans and plastic filament formula.
The Fourteenth Circuit also stated that the 3D gun plans alone constituted a destructive device. R.
at 21. However, as stated below, the record indicates that these were solely within the knowledge and
control of Mr. Triton. See R. at 9.
5
29
The record indicates that the 3D gun plans were solely within the knowledge and
control of Mr. Triton; there is no indication that Miss Borne was even aware of their
existence or presence in the vehicle. See R. at 9. Similarly, the record indicates that
Miss Triton was the only individual with knowledge and control of the plastic
filament formula, as she “secretly downloaded” the formula to the cartoon-robotshaped USB drive. R. at 11.
Moreover, even if Miss Borne was in constructive possession of these items, R.
at 18, she lacked a number of essential elements necessary to make an exploding 3Dprinted gun, including a 3D printer, an explosive component, and the chemicals
necessary to create the plastic filament. See R. at 21. Finally, although the FBI
ballistics expert testified that the items in “the girls’ luggage” 6 (i.e. hairspray,
matches, 3D-printed cylinder, and other miscellaneous items) could be used to
construct a bomb, he also stated that doing so would require “a bright teenager [to]
obtain the knowledge on the internet to create such a device.” Id. Yet, the record
contains no evidence that Miss Borne had the requisite knowledge to create a bomb
from the listed items.
Under either an actual or constructive possession standard, Miss Borne lacked
several essential elements necessary to create either an exploding 3D-printed
handgun or a bomb. Thus, the Government failed to prove that the items in her
possession could be readily assembled into a destructive device.
Even the ballistics expert stated that such a bomb could only be assembled from the contents of both
Miss Borne and Miss Triton’s luggage. R. at 18; see infra Section I.C.
6
30
C. Even If The Items In Miss Borne’s Possession Could Be Readily Assembled
Into A Destructive Device, Miss Borne Lacked The Requisite Knowledge That
Those Components Were Prohibited Under The Statute.
This Court has consistently recognized that criminal offenses with no mens rea
requirement are disfavored, Liparota, 471 U.S. at 426, and that some indication of
congressional intent to impose strict liability is required in order to dispense with
mens rea as an element of a crime, Gypsum, 438 U.S. at 438; Morissette v. United
States, 342 U.S. 246, 263 (1952). This interpretation is consistent with the common
law, which generally construed crimes to contain a mens rea requirement. Gypsum,
438 U.S. at 436–37. In keeping with this precedent, this Court has refused to impose
a strict liability construction for § 5861(d), which prohibits receiving or possessing an
unregistered firearm. Staples v. United States, 511 U.S. 600, 605, 619–20 (1994).
This Court has noted only one exception to the general rule that mens rea is
required in every criminal statute. This occurs when, in the context of “public welfare”
or “regulatory” offenses, an offender need only know that he is in possession of a
device or substance, and not whether such device or substance is statutorily regulated.
Id. at 606–08; see also United States v. Dotterweich, 320 U.S. 277, 281 (1943) (stating
that a defendant need only know that he is dealing with a type of device that places
him “in responsible relation to a public danger” in order to be convicted of possessing
a highly dangerous item); United States v. Balint, 258 U.S. 250, 254 (1922) (holding
that conviction under the Narcotic Act of 1914 required only that the defendant know
that he was selling drugs, not that they were “narcotics” as defined by the statute).
31
However, this Court in Staples refused to apply the public welfare exception to
§ 5861(d). 511 U.S. at 619–20. In Staples, this Court rejected the Government’s
argument that mere possession of a firearm is sufficient to put a defendant on notice
that such possession might be illegal, stating that doing so would “criminalize a broad
range of apparently innocent conduct.” Id. at 611 (quoting Liparota, 471 U.S. at 426).
In doing so, this Court distinguished the firearms at issue in Staples from the hand
grenades at issue in United States v. Freed, 401 U.S. 601, 609 (1971), because
although firearm use can be both innocent and destructive, “one would hardly be
surprised to learn that possession of hand grenades is not an innocent act.” Staples,
511 U.S. at 610 (quoting Freed, 401 U.S. at 609). This Court further stated that
“[g]uns in general are not ‘deleterious devices or products or obnoxious waste
materials,’ that put their owners on notice that they stand ‘in responsible relation to
a public danger.’” Id. (quoting United States v. Int’l Minerals & Chem. Corp., 402 U.S.
558, 565 (1971); Dotterweich, 320 U.S. at 281).
The justifications for not applying the public welfare exception to the
possession of an unregistered firearm under § 5861(d) are even stronger in the case
of prosecution under § 5861(f) and § 5845(f)(3) for making a destructive device.
Although firearms have lethal possibilities independent of their use as destructive
devices, innocuous household items only have the potential to become lethal when
combined in hazardous ways. Further, even if the public welfare exception were
applied to destructive devices, it should not be extended to § 5845(f)(3), because doing
so would criminalize the mere possession of items that most Americans store in their
32
houses for legitimate purposes. As a result, requiring anything less than the Staples
standard for mens rea would criminalize an even greater amount of “apparently
innocent conduct” than was possible in Staples. 511 U.S. at 611.
The facts of Miss Borne’s case further justify requiring the defendant to possess
knowledge of the illegal nature of the items in her possession under § 5861(f). The
items listed in Miss Borne’s indictment are consistent with legitimate use: the 3Dprinted gun plans, curve code, plastic cylinder, and plastic filament formula are
indicative of an academic curiosity, see R. at 7, 9–11, and the hairspray, matches, and
other miscellaneous items are typical items that accompany an individual on an
innocent social trip, see R. at 12. Given that these items have innocuous uses, Miss
Borne lacked the knowledge that these components were potentially illegal and she
cannot be prosecuted for making a destructive device. Therefore, Miss Borne did not
make a destructive device and her conviction under §§ 5845(f)(3), 5861(f) is improper
as a matter of law.
II. THE FOURTEENTH CIRCUIT ERRED AS A MATTER OF LAW IN AFFIRMING MISS
BORNE’S CONVICTION UNDER 18 U.S.C. § 2339B BECAUSE THE STATUTE IS
UNCONSTITUTIONAL AS APPLIED TO HER AND MISS BORNE DID NOT PROVIDE
MATERIAL SUPPORT WITHIN THE MEANING OF THE STATUTE.
In the wake of the World Trade Center bombings in 1993 and the Oklahoma
City bombings in 1995, Congress passed the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), codified at 18 U.S.C. § 2339B. Pub. L. No. 104-132, 110
Stat. 1247; Andrew Peterson, Addressing Tomorrow’s Terrorists, 2 J. Nat’l Security
L. & Pol’y 297, 319 (2008). The purpose of the statute is “to provide the Federal
Government [with] the fullest possible basis, consistent with the Constitution, to
33
prevent persons within the United States, or subject to the jurisdiction of the United
States, from providing material support or resources to foreign organizations that
engage in terrorist activities.” § 301.
Section 2339B states that anyone who “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 . . .” § 2339B(a)(1). Since the passage of the
statute, the Government has used § 2339B to prosecute individuals who provided
material support to FTOs such as Al-Qaeda, Hamas, the Taliban, the Armed
Revolutionary Forces of Columbia (FARC), and Hizballah. See United States v.
Mulholland, No. 14-4126-cr, 2015 U.S. App. LEXIS 18000, at *1 (2d Cir. Oct. 14, 2015)
(Hizballah); United States v. Khan, 794 F.3d 1288, 1293 (11th Cir. 2015) (Taliban);
United States v. Medunjanin, 752 F.3d 576, 579 (2d Cir.), cert. denied, 135 S. Ct. 301
(2014) (Al-Qaeda); United States v. Rubio, 677 F.3d 1257, 1259 (D.C. Cir. 2012)
(FARC); Boim v. Quranic Literacy Inst., 291 F.3d 1000, 1026 (7th Cir. 2002) (Hamas).
Never before has the Government used § 2339B to prosecute an intellectually curious
eighteen-year-old girl who has not knowingly communicated with any member of an
FTO. See R. at 2.
Here, the Fourteenth Circuit erred as a matter of law in upholding Miss
Borne’s conviction under § 2339B for three reasons. First, § 2339B as applied violated
Miss Borne’s rights to free speech and free association. Second, § 2339B as applied
violated Miss Borne’s right to due process. Third, even if § 2339B is constitutional as
34
applied, Miss Borne’s conviction was improper because she did not provide material
support to Dixie Millions, and Mr. Allen is not a terrorist organization.
A. Miss Borne’s Conviction Under § 2339B As Applied Violated Her Rights To
Free Speech And Free Association.
In passing the AEDPA, Congress explicitly noted 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.” § 2339B(i). The First
Amendment states that “Congress shall make no law . . . abridging the freedom of
speech . . . or the right of the people peaceably to assemble.” U.S. Const. amend. I.
This Court in Holder v. Humanitarian Law Project implicitly held that strict
scrutiny applies when the statute is applied to conduct in the form of a message. See
561 U.S. 1, 27–28 (2010) (“The Government argues that § 2339B should nonetheless
receive intermediate scrutiny because it generally functions as a regulation of
conduct. That argument runs headlong into a number of our precedents . . . ‘and we
must apply a more demanding standard.’”). Under strict scrutiny, the Government
must prove that the statute is narrowly tailored to serve a compelling state interest.
Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015). While it is undisputed that
preventing terrorism is a compelling interest, see Hamdi v. Rumsfeld, 542 U.S. 507,
580 (2004) (“‘[N]o governmental interest is more compelling than the security of the
Nation.’” (quoting Haig v. Agee, 453 U.S. 280, 307 (1981))), § 2339B as applied to Miss
Borne is not narrowly tailored.
Since the passage of the AEDPA in 1996, scholars and jurists have generally
used two approaches to analyze the constitutionality of the mens rea requirement in
35
§ 2339B. Compare United States v. Mehanna, 735 F.3d 32, 49 (1st Cir. 2013), cert.
denied, 135 S. Ct. 49 (2014) (holding that § 2339B should criminalize association and
speech in coordination with or at the direction of an FTO regardless of intent), with
James P. Fantetti, John Walker Lindh, Terrorist? Or Merely a Citizen Exercising His
Constitutional Freedom: The Limits of the Freedom of Association in the Aftermath
of September Eleventh, 71 U. Cin. L. Rev. 1373, 1385 (2003) (arguing that
interpreting § 2339B without a specific intent requirement violates the First
Amendment).
The knowledge or intent approach criminalizes speech and association only if
the defendant knowingly or intentionally provided support to further the FTO’s
illegal objectives. Humanitarian Law Project, 561 U.S. at 56 (Breyer, J., dissenting).
In contrast, the coordination or direction approach criminalizes any speech and
association “coordinated with or directed by” an FTO even if the defendant only
intended to support the lawful objectives of the FTO. See Weiss v. Nat’l Westminster
Bank P.L.C., 768 F.3d 202, 204 (2d Cir. 2014) (holding that the Government need
only prove the defendant provided support to a known FTO). Here, under either
approach, § 2339B is unconstitutional as applied to Miss Borne’s conduct and her
conviction for providing material support to an FTO is improper.
1. Section 2339B Should Require Knowledge Or Intent That The Defendant’s
Activities Will Further The Terrorist Organization’s Unlawful Objectives.
The core purpose of the Free Speech and Free Association Clauses is to protect
an individual’s right to peacefully associate with others and exchange ideas. Citizens
United v. Fed. Election Comm’n, 558 U.S. 310, 349 (2010) (“If the First Amendment
36
has any force, it prohibits Congress from fining or jailing citizens, or associations of
citizens, for simply engaging in political speech.”); New York Times Co. v. Sullivan,
376 U.S. 254, 269 (1964) (“[T]hat freedom of expression upon public questions is
secured by the First Amendment has long been settled by our decisions.”); Roth v.
United States, 354 U.S. 476, 484 (1957) (“The protection given speech and press was
fashioned to assure unfettered interchange of ideas for the bringing about of political
and social changes desired by the people.”). Indeed, unless speech is directed to
inciting imminent lawless action, the First Amendment even protects a speaker’s
right to advocate for unlawful activity. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
The First Amendment also protects the right to associate for peaceful purposes.
See U.S. Const. amend. I. In Scales v. United States, for example, this Court held
that a “blanket prohibition of association with a group having both legal and illegal
aims, [creates] a real danger that legitimate political expression or association would
be impaired.” 367 U.S. 203, 229 (1961). Likewise, in Elfbrandt v. Russell, this Court
held that a “law which applies to membership without the ‘specific intent’ to further
the illegal aims of the organization infringes unnecessarily on protected freedoms.”
384 U.S. 11, 19 (1966). In De Jonge v. Oregon, this Court reversed a criminal
conviction against a man sentenced to seven years in prison for attending a
Communist Party meeting because the man only intended to support the group’s
lawful purposes. 299 U.S. 353, 365 (1937).
The clear principle elucidated through these cases is that criminalizing
support for the lawful objectives of an organization violates the First Amendment.
37
Scales, 367 U.S. at 229. While these cases did not analyze § 2339B, the holdings are
consistent with the understanding that the free exchange of ideas and peaceful
assembly is protected as stated in the First Amendment. See U.S. Const. amend. I.
In passing § 2339B, Congress explicitly stated that the statute should be construed
to comport with the First Amendment. § 2339B(i). If “knowingly” is interpreted
without regard for a defendant’s knowledge or intent to support an FTO’s unlawful
objectives, then § 2339B as applied infringes on the defendant’s constitutional right
to express his ideas and associate with others for lawful purposes. See NAACP v.
Claiborne Hardware Co., 458 U.S. 886, 908 (1982) (“The right to associate does not
lose all constitutional protection merely because some members of the group may
have participated in conduct or advocated doctrine that itself is not protected.”).
Yet, despite the clear reasoning of this Court in Claiborne, Elfbrandt, Scales,
and De Jonge that intent to further the illegal objectives of an organization is
required to criminalize speech or association, a slim majority of this Court departed
from years of precedent in deciding Humanitarian Law Project. See 561 U.S. at 8
(holding that the material support statute was constitutional as applied to the
plaintiffs but did not “address the resolution of more difficult cases that may arise
under the statute in the future”).
Although this Court acknowledged in Humanitarian Law Project that mere
membership in an FTO is a protected activity, it also held that the mens rea
requirement in § 2339B only requires “knowledge about the organization’s connection
to terrorism.” 561 U.S. at 16. However, this mere knowledge requirement violates the
38
Free Association Clause as applied because it prevents any meaningful association.
For example, in Humanitarian Law Project, the plaintiffs sought prospective relief
enabling them to provide only humanitarian aid to FTOs in the Middle East. Id. at
14–15. Their intention to further only the lawful objectives of the organization was
undisputed. Id. Yet, a six-justice majority of this Court held that support “coordinated
with or under the direction” of an FTO was not protected by the First Amendment
regardless of whether the support was used for legal or illegal purposes. Id. at 31.
On this point, Humanitarian Law Project was an aberration from this Court’s
prior decisions. And to the extent that this decision was inconsistent with years of
unquestioned precedent from this Court in interpreting the Free Speech and Free
Association Clauses, this Court should reverse Humanitarian Law Project. Instead,
this Court should construe the mens rea requirement in § 2339B so that “[a] person
acts with the requisite knowledge if he is aware of (or willfully blinds himself to) a
significant likelihood that his or her conduct will materially support the
organization’s terrorist ends.” Id. at 56 (Breyer, J., dissenting). Indeed, unless this
Court construes “knowingly” to mean knowledge or intent to further the FTO’s illegal
objectives, then § 2339B as applied impermissibly restricts a defendant’s
constitutional right to speech and association.
Furthermore, even if § 2339B requires knowledge or intent to further an FTO’s
illegal objectives, such a standard would not necessarily limit the Government’s
ability to combat true terrorism. See United States v. Al-Arian, 308 F. Supp. 2d 1322,
1339 (M.D. Fla. 2004). For example, a jury could easily infer the intent to further an
39
FTO’s illegal objectives if a defendant provides weapons, military equipment,
explosives, or martial arts training to an FTO. Id. Thus, this Court should construe §
2339B to require that the defendant acted knowingly or intentionally to provide
support for an FTO’s unlawful objectives.
Under this approach, Miss Borne’s conviction was improper because she lacked
the requisite knowledge or intent that her actions were likely to further any unlawful
objective of Dixie Millions. She neither expressed an interest in stealing government
documents nor indicated a desire to engage in scandalous document dumps, such as
those done by Millions. See R. at 6. Indeed, the Government’s witnesses even
admitted at trial that Miss Borne’s objective was to convince hacker groups to protect
data. R. at 17. Even assuming Miss Borne succeeded in meeting Mr. Allen and
showing him several of her high school projects, there is no indication from the record
that this action would support Dixie Millions’s illegal objectives, see R. at 12,
especially given that Miss Borne knew Mr. Allen had retired from Dixie Millions, R.
at 6. Therefore, under this approach, Miss Borne’s conviction under § 2339B was
improper.
2. Even Under The Direction Or Coordination Approach, Miss Borne’s
Conviction Was Improper Because Her Actions Were Not Coordinated With
Or Directed By Dixie Millions.
Only speech “under the direction of, or in coordination with foreign groups that
the speaker knows to be terrorist organizations” is not protected by the First
Amendment. Humanitarian Law Project, 561 U.S. at 31. The theory behind this
approach is that all support provided to an FTO ultimately furthers terrorism. Id. at
40
33. The First Amendment does protect independent advocacy, however, so § 2339B
does not extend to any speech independent from the FTO. Id. at 32.
For example, in Al Haramain Islamic Foundation, Inc. v. United States
Department of the Treasury, the Ninth Circuit held that a nonprofit corporation’s
activities were not directed or controlled by a terroristic group even though the
organization engaged in advocacy and demonstrations with the terrorist organization.
686 F.3d 965, 970 (9th Cir. 2012). Pursuant to Executive Order No. 13224, which
allowed the President to specially designate an FTO, the U.S. Treasury Department
froze AHIF’s accounts, which AHIF argued was unconstitutional as applied. Id. In Al
Haramain, AHIF wanted to speak to the press, hold demonstrations, and issue a
coordinated press release and conference with the larger organization in the Middle
East. Id. at 998. Yet, despite this contact, the Ninth Circuit held that the Executive
Order as applied was unconstitutional. Id. at 1001.
Given the range of activities protected in Al Haramain under the First
Amendment, Miss Borne’s conviction under § 2339B is improper because her words
and actions were not coordinated with or under the direction of Dixie Millions. The
only known members of Dixie Millions are Dixie and Millions. R. at 5–6. Here, there
is no evidence in the record to indicate that Miss Borne ever knowingly communicated
with either member of Dixie Millions.
First, Miss Borne’s activities were not directed by or coordinated with Dixie
Millions through her interaction with Mrs. Ascot, which the FBI suspected was Dixie.
During their interaction, the pair discussed innocuous subjects such as C++
41
programming, internet culture, and the ethics of hacking. R. at 4, 9. While Mrs. Ascot
did mentor Miss Borne, the record does not reflect that Miss Borne knew Mrs. Ascot
was Dixie. See R. at 17. Indeed, even at trial the FBI was not certain that Mrs. Ascot
was Dixie of Dixie Millions. Id. As such, even assuming that Miss Borne did know
Mrs. Ascot was Dixie, the Government failed to prove that point at trial. See id. Thus,
there is no credible argument that Miss Borne’s activities were directed by or
coordinated with Dixie Millions through her friendship with Mrs. Ascot.
Second, Miss Borne’s activities were not directed by or coordinated with Dixie
Millions through her desire to meet Mr. Allen, who claimed to be Millions. Even in
her attempt to meet Mr. Allen at the café, Miss Borne never contacted him; instead
she created a spreadsheet of his locations. See R. at 11–12. Furthermore, she never
actually met with Mr. Allen because she missed her flight to Azran. See R. at 15–17.
But, even assuming Miss Borne had met Mr. Allen at the café, her contact still does
not rise to the level of unprotected speech given this Court’s holding that mere
membership in an FTO is protected. Thus, Miss Borne’s activities were not
coordinated with or directed by Dixie Millions through Mr. Allen.
Additionally, Miss Borne’s case is distinguishable from other cases in which
courts have held that an individual’s contact was coordinated with or directed by an
FTO. For example, in United States v. El-Mezain, the Fifth Circuit held that the
defendant’s activities were coordinated with an FTO because the defendants hosted
fundraisers on behalf of Hamas and in the presence of Hamas leaders. 664 F.3d 467,
485 (5th Cir. 2011). Likewise, the First Circuit in United States v. Mehanna, 735 F.3d
42
at 49, held that the defendant’s speech was coordinated with an FTO because the
defendant traveled to Yemen, sought out an Al-Qaida training camp, and voiced his
desire to fight alongside Al-Qaida against the United States in Iraq. Id.
Unlike the defendants in both El-Mezain and Mehenna, Miss Borne did not
host fundraisers for Dixie Millions with its members present nor did she voice a desire
to hack government data. Indeed, she never knowingly communicated with Dixie
Millions, much less coordinated her speech with the organization. Therefore, even
under the direction or coordination approach, Miss Borne’s conviction under § 2339B
was improper because her speech was protected.
B. Miss Borne’s Conviction Under § 2339B Violated Her Fifth Amendment Right
To Due Process.
The Due Process Clause requires that criminal laws provide “sufficient
definiteness that ordinary people can understand what conduct is prohibited” and “in
a manner that does not encourage arbitrary and discriminatory enforcement.”
Kolender v. Lawson, 461 U.S. 352, 357 (1983); see also U.S. Const. amend. XIV.
Statutes restricting speech or association require “a more stringent vagueness test.”
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499
(1982).
This Court in Humanitarian Law Project recognized that “the scope of the
material-support statute may not be clear in every application.” 561 U.S. at 21.
Congress has defined “material support or resources” as
any property, tangible or intangible, or service, including currency or
monetary instruments or financial securities, financial services, lodging,
training, expert advice or assistance, safehouses, false documentation or
43
identification, communications equipment, facilities, weapons, lethal
substances, explosives, personnel (1 or more individuals who may be or
include oneself), and transportation, except medicine or religious
materials.
§ 2339A(b)(1); see also § 2339B(g)(4) (noting that “material support or resources” has
the same meaning in § 2339B and § 2339A). This Court further defined “material” as
support that “bears a significant likelihood of furthering the organization’s terrorist
ends” or is “of real importance or great consequence.” Humanitarian Law Project, 561
U.S. at 57 (Breyer, J., dissenting) (quoting Material, Webster’s Third New
International Dictionary (1961)).
Of the limited number of cases that have been prosecuted under § 2339B, Brief
for the Respondents at 14, Holder v. Humanitarian Law Project, 561 U.S. 1 (2010)
(Nos. 08-1498, 09-89), 2009 U.S. S. Ct. Briefs LEXIS 1589 (noting that the
Government had prosecuted approximately 150 cases under § 2339B by 2010), many
have upheld § 2339B as applied, see United States v. Augustin, 661 F.3d 1105, 1122
(11th Cir. 2011) (holding that using a confidential informant to obtain evidence used
in convicting defendants who attempted to bomb federal buildings and conspired to
support Al-Qaida comported with the Due Process Clause); United States v. Al
Kassar, 660 F.3d 108, 119 (2d Cir. 2011) (holding the defendant had fair notice that
supplying FARC with illegal antiaircraft missiles to be used in killing American
citizens was a crime); United States v. Farhane, 634 F.3d 127, 140 (2d Cir. 2011)
(holding that the defendants had notice that swearing allegiance to Al-Qaida and
providing their professional skills to wage jihad was a crime). However, these cases
44
are factually distinguishable from Miss Borne’s case because her conduct was far
more innocuous.
Accordingly, § 2339B as applied to Miss Borne violated her right to due process
because an ordinary person would not realize that conduct like hers was prohibited.
Unlike the defendants in United States v. Farhane, who swore allegiance to Al
Qaiada and then provided professional skills to wage jihad, Miss Borne merely
wanted to meet with a man she believed to be a “White Hat Hacker” so that she could
impress him with her hacking skills. R. at 12. Even the items Miss Borne wanted to
show Mr. Allen—the curve code, plastic 3D-printed cylinder, and spreadsheet of his
activities—are quite different from the antiaircraft missiles provided by the
defendants in United States v. Al Kasser to FARC. 660 F.3d at 108; R. at 12. While
the distinct purpose of an antiaircraft missile is destruction, Miss Borne’s items had
primarily innocuous purposes. See R. at 12. Given the nature of the conduct
ordinarily prohibited by § 2339B, the average person would not have fair notice that
conduct like Miss Borne’s violated the statute.
Furthermore, even if Miss Borne’s conduct fell within the meaning of “material
support or resources,” her conduct did not bear a significant likelihood of furthering
Dixie Millions’s objectives. Instead of trying to contact Millions in November while
Mr. Allen was actively engaged in releasing private data, R. at 5, Miss Borne did not
begin researching Mr. Allen until May—after he had retired from Dixie Millions, R.
at 11. Thus, § 2339B as applied violated Miss Borne’s right to due process because
45
her conduct was not ordinarily prohibited by § 2339B and did not create a significant
likelihood of furthering Dixie Millions’s objectives.
C. Even If § 2339B Is Valid As Applied, Miss Borne Did Not Provide Material
Support To A Terrorist Organization Within The Meaning Of The Statute.
To obtain a conviction under § 2339B, the Government must prove that the
defendant “knowingly provide[d] material support or resources to a foreign terrorist
organization, or attempt[d] or conspire[d] to do so . . .” § 2339B(a)(1). The support
must flow from the individual to the terrorist organization, rather than from the
organization to the individual. See United States v. Chandia, 514 F.3d 365, 372 (4th
Cir. 2008). Further, the support must flow to the organization itself, not just a
member of the organization. See § 2339B(a)(1). Here, Miss Borne’s conviction is
improper because she wanted to receive, rather than render, support and, even if she
had provided material support to Mr. Allen, he is a retired member of a cyberterrorist
organization rather than an FTO himself.
For example, in United States v. Chandia, the Fourth Circuit held that the
defendant violated § 2339B and provided material support to Lashkar-e-Taiba (LET),
an FTO in Pakistan, when he traveled to Pakistan to attend a training camp, assisted
other members in shipping military training equipment to the camp in Pakistan, and
provided housing and tech support for the FTO’s leaders whenever they were in the
United States. 514 F.3d at 369–70. In United States v. Ali, the Eighth Circuit upheld
a conviction for providing material support because the defendant planned and
participated in raising funds for Al Shabaab, an FTO in Somalia. 799 F.3d 1008, 1114
(8th Cir.), reh’g and reh’g en banc denied, No. 13-2208, 2015 U.S. App. LEXIS 17297
46
(Oct. 1, 2015). The Ninth Circuit in United States v. Afshari upheld a material
support conviction because the defendant had donated several thousand dollars to
MEK, an Iranian Marxist group designated as an FTO. 426 F.3d 1150, 1152 (9th Cir.
2005). The common theme in all of these cases is that the support flowed from the
defendant to the FTO.
Here, Miss Borne did not try to support Dixie Millions—she wanted to receive
support from Mr. Allen. R. at 12. Unlike the defendants in Chandia, Ali, and Afshari,
who provided valuable resources to a terrorist organization, Miss Borne wanted to
receive Mr. Allen’s “advice on her career path.” R. at 11. Indeed, the record does not
even reflect that Miss Borne wanted to give her curve code, plastic cylinder, or
spreadsheet of his activities to Mr. Allen; she merely wanted to show him those items
so that he would train her to become a better hacker. R. at 12. Accordingly, Miss
Borne’s case is distinguishable from cases like Chandia, Ali, and Afshari, where the
courts held that the defendant provided material support to an FTO.
Furthermore, Mr. Allen is not a terrorist organization—at most he is a retired
member of a cyberterrorist organization. As Judge Morgan noted in his dissent below,
both the district court and appellate court improperly conflated Mr. Allen with Dixie
Millions, which is even less defendable than conflating Millions with Dixie Millions.
See Borne, No. 15-1359, at *27 (Morgan, J., dissenting). For example, in United
States v. Al-Arian, the court considered the legality of a hypothetical cab driver who
knowingly provided a ride to a member of an FTO. 308 F. Supp. 2d at 1338–39.7 The
The specific issue of providing support to an FTO rather than an FTO member has not been analyzed
in the circuits. All of the district courts to address this issue agree that § 2339B only prohibits
7
47
court noted that unless it distinguished between a member and the organization itself,
the cab driver could spend fifteen years in prison merely for providing the member
with a ride, which is an absurd result. Id. Under the reasoning of Al-Arian and the
requirements of the statute itself, it would be improper to conflate Millions with Dixie
Millions because Millions is only a member of a terrorist organization. Id.
But the courts below went one step further by conflating a retired member with
the cyberterrorist organization itself. See Borne, No. 15-1359, at *24 (Morgan, J.,
dissenting). Yet, just as a cab driver should not be punished with fifteen years in
prison for providing a member of a terrorist organization with a ride, Miss Borne
should not be punished with fifteen years in prison because she wanted to meet Mr.
Allen. R. at 11–12. Even the ill-fated smartphone reminder, which ultimately led to
her arrest and trial, clearly stated “Meet Clive Allen at Café,” indicating Miss Borne
wanted to meet with Mr. Allen himself. R. at 12. Therefore, Miss Borne did not
provide material support to a terrorist organization itself and her conviction under
§ 2339B was improper as a matter of law.
CONCLUSION
The law should punish wrongdoing, not intellectual curiosity. The Fourteenth
Circuit improperly affirmed Miss Borne’s conviction for creating a destructive device
and for attempting to provide material support to an FTO. Unless this Court reverses
that decision, Miss Borne will spend the next fifteen years in prison—a sentence
lasting until her early thirties—because of a misunderstanding presented in the
providing material support to an FTO, rather than to an FTO member. See, e.g., United States v.
Warsame, 537 F. Supp. 2d 1005, 1022 (D. Minn. 2008); Al-Arian, 308 F. Supp. 2d at 1338–39.
48
district court and perpetuated by the appellate court. The price for academic curiosity
should not be so steep. Therefore, this Court should reverse the Fourteenth Circuit’s
decision and remand to the district court with instructions to enter judgment in favor
of Miss Borne.
Dated November 23, 2015.
Respectfully submitted,
/s/___________________
Counsel for Petitioner
49
APPENDIX
U.S. Const. amend. I
Congress shall make no law . . . abridging the freedom of speech . . . or the right of
the people peaceably to assemble . . . .
U.S. Const. amend. XIV
[N]or shall any state deprive any person of life, liberty, or property, without due
process of law. . . .
18 U.S.C. § 2339A. Providing material support to terrorists
(b) Definitions.—As used in this section—
(1) the term “material support or resources” means any property, tangible
or intangible, or service, including currency or monetary instruments or
financial securities, financial services, lodging, training, expert advice or
assistance, safehouses, false documentation or identification,
communications equipment, facilities, weapons, lethal substances,
explosives, personnel (1 or more individuals who may be or include
oneself), and transportation, except medicine or religious materials;
18 U.S.C. § 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).
....
A-1
APPENDIX—continued
(g) Definitions.—As used in this section—
(4) the term “material support or resources” has the same meaning given
that term in section 2339A (including the definitions of “training” and
“expert advice or assistance” in that section);
....
(i) Rule of Construction.—Nothing 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.
26 U.S.C. § 5845. Definitions
(a) Firearm
The term “firearm” means (1) a shotgun having a barrel or barrels of less
than 18 inches in length; (2) a weapon made from a shotgun if such weapon
as modified has an overall length of less than 26 inches or a barrel or barrels
of less than 18 inches in length; (3) a rifle having a barrel or barrels of less
than 16 inches in length; (4) a weapon made from a rifle if such weapon as
modified has an overall length of less than 26 inches or a barrel or barrels of
less than 16 inches in length; (5) any other weapon, as defined in subsection
(e); (6) a machinegun; (7) any silencer (as defined in section 921 of title 18,
United States Code); and (8) a destructive device. The term “firearm” shall
not include an antique firearm or any device (other than a machinegun or
destructive device) which, although designed as a weapon, the Secretary finds
by reason of the date of its manufacture, value, design, and other
characteristics is primarily a collector’s item and is not likely to be used as a
weapon.
....
(f) Destructive device
The term “destructive device” means (1) any explosive, incendiary, or
poison gas (A) bomb, (B) grenade, (C) rocket having a propellent 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
A-2
APPENDIX—continued
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.
26 U.S.C. § 5861. Prohibited acts
It shall be unlawful for any person—
(a) to engage in business as a manufacturer or importer of, or dealer in,
firearms without having paid the special (occupational) tax required by section
5801 for his business or having registered as required by section 5802; or
(b) to receive or possess a firearm transferred to him in violation of the
provisions of this chapter; or
(c) to receive or possess a firearm made in violation of the provisions of this
chapter; or
(d) to receive or possess a firearm which is not registered to him in the
National Firearms Registration and Transfer Record; or
(e) to transfer a firearm in violation of the provisions of this chapter; or
(f) to make a firearm in violation of the provisions of this chapter; or
(g) to obliterate, remove, change, or alter the serial number or other
identification of a firearm required by this chapter; or
(h) to receive or possess a firearm having the serial number or other
identification required by this chapter obliterated, removed, changed, or altered;
or
(i) to receive or possess a firearm which is not identified by a serial number
as required by this chapter; or
(j) to transport, deliver, or receive any firearm in interstate commerce which
has not been registered as required by this chapter; or
(k) to receive or possess a firearm which has been imported or brought into
the United States in violation of section 5844; or
(l) to make, or cause the making of, a false entry on any application, return,
or record required by this chapter, knowing such entry to be false.
A-3