______________________________________________________________________________
No. C15-1359-1
___________________________
In the
Supreme Court of the United States
October Term, 2015
___________________________
EMMALINE BLACK
Petitioner,
— v. —
UNITED STATES OF AMERICA,
Respondent.
___________________________
On Writ of Certiorari to the United States Court of Appeals
for the Fourteenth Circuit
______________________________________________________________________________
BRIEF FOR RESPONDENT
Attorneys for Respondent
Team Number: 17
QUESTIONS PRESENTED
1. Must this Court apply the Rushcamp hybrid standard in evaluating whether
Petitioner’s possession of the items found on her person at the time of her
arrest was prosecutable under 26 U.S.C. § 5845(f)(3)?
2. Can a person be convicted, substantively and constitutionally, for attempting
to demonstrate and show a complex computer code, that can be used to create
the main component of a home-made bomb, to a designated foreign terrorist
organization under 18 U.S.C. § 2339B?
i
TABLE OF CONTENTS
QUESTIONS PRESENTED ....................................................................................... i
OPINIONS BELOW ............................................................................................... viii
CONSTITUTIONAL AND STATUTORY PROVISIONS ....................................... viii
STATEMENT OF JURISDICTION ............................................................................ 1
STATEMENT OF THE CASE .................................................................................... 1
A. Statement of Facts…………………………………………………………….…..1
B. Procedural History…………………………………………………………….......4
SUMMARY OF THE ARGUMENT ............................................................................ 6
ARGUMENT ............................................................................................................ 10
I.
THE RUSHCAMP HYBRID STANDARD CORRECTLY APPLIES TO
INDIVIDUALS CHARGED UNDER 26 U.S.C. § 5845(f)(3) OF THE
NATIONAL FIREARMS ACT OF 1934 AND REQUIRES THIS COURT TO
AFFIRM THE LOWER COURTS’ FINDING OF PETIONER’S GUILT. ...... 21
A. This Court Should Resolve The Circuit Split And Find That The
Rushcamp Hybrid Standard Governs, Because a Purely Objective or
Purely Subjective Standard Fails To Accomplish The Goals of 26 U.S.C. §
5845(F)(3)................................................................................................... 13
B. Applying The Rushcamp Hybrid Standard When Evaluating Petitioner’s
Chargeability Under 26 U.S.C. § 5845(F)(3), The Combination of Items in
Petitioner’s Possession at The Time of Arrest Fall Within The Scope of
The “Destructive Device” Definition Intended by Congress. ................... 18
1. If Petitioner’s Subjective Intent is Found Relevant to The Application
of The Rushcamp Hybrid Standard, The Fourteenth Circuit Court of
Appeal’s Conclusion Regarding Her Motives is Correct. ............... 200
2. The Devices’ Components Are Readily Convertible to Destructive
Devices and Petitioner Was Able to Do So..................................... 222
C. Even if This Court Applies The Purely Objective Standard, Petitioner’s
Conviction Satisfies The Statutory Requirement Because The
Unassembled Parts Found in Her Possession at The Time of Arrest Do
ii
Not Form an Object With a Legitimate Social or Commercial Purpose.
.................................................................................................................. 244
II.
A PERSON CAN BE PROSECUTED UNDER 18 U.S.C. § 2339B, WITHOUT
THEIR FIRST AMENDMENT RIGHTS JEAPORDIZED, FOR PLANNING
TO MEET AND CONFER WITH THE LEADER OF A FTO IN ORDER TO
PROVIDE COMPUTER CODE USED FOR MAKING THE ESSENTIAL
ELEMENT OF A BOMB. ............................................................................... 25
A. Making Plans to Meet the Leader of a Foreign Terrorist Organization in
Order to Explain and Provide a Dangerous Computer Code Fits Squarely
Within the Parameters of 18 U.S.C. § 2339B........................................... 26
1. A Computer Code that Provides the Capabilities to Create the
Essential Component of a Bomb is Considered a Weapon and
Therefore Prohibited from Production to a Foreign Terrorist
Organization...................................................................................... 27
2. In the Alternative, Showing and Demonstrating a Potentially
Dangerous Computer Code is Prohibited by the Material Support
Statute Because it Qualifies as Training or Expert Advice or
Assistance. ......................................................................................... 31
B. The First Amendment’s Guarantee of Freedom of Speech and Right to
Association is Not Violated by 18 U.S.C. § 2339B Because the
Government’s Interest in Stopping the Attacks of Modern Terrorist
Organizations is Great and the Statute is Narrowly Tailored to Achieve
That End. ................................................................................................... 33
1. Petitioner’s Speech that is Criminalized under 18 U.S.C. § 2339B
Passes Constitutional Muster under a Strict Scrutiny Analysis. ... 36
i.
The Government Has a Compelling Interest in Thwarting
Terrorist Activities of Rogue Hackers Who Are a Part of
Designated Foreign Terrorist Organizations................... 37
ii.
18 U.S.C. § 2339B is Narrowly Tailored to Achieve This
End Because the Conduct Proscribed is Directed to and
Coordinated with a Foreign Terrorist Organization and the
Statute Only Prohibits Specific, Material Support. ........ 39
2. An Individual’s Freedom to Associate is not Violated by 18 U.S.C. §
2339B Because the Statute Only Restricts One’s Ability to Provide
iii
Material Support and Does Not Prohibit One’s Membership in an
FTO. ................................................................................................... 43
C. There is Sufficient Evidence to Demonstrate That Petitioner Intended to
Give Support to Dixie Millions Because She Took Substantial Steps to
Track the Coordinates of Clive Allen, Made Public Statements Supporting
His Actions, and Planned to Show Him a Dangerous Computer Code. .. 46
1. Petitioner’s Actions Constitute Attempt to Violate the Material
Support Statute Because She Intended to Provide Material Support
to DM and Took Substantial Steps Towards Accomplishing That
Goal.................................................................................................... 47
2. Petitioner Satisfied 18 U.S.C. § 2339B’s Knowledge Requirement
Because She Knew DM Was a Designated Foreign Terrorist
Organization...................................................................................... 50
CONCLUSION ......................................................................................................... 51
iv
TABLE OF AUTHORITIES
United States Supreme Court Cases
Brandenburg v. Ohio, 395 U.S. 444 (1969) ................................................................. 43
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) ................................... passim
Jackson v. Virginia, 443 U.S. 307 (1979) .................................................................... 55
Mills v. Alabama, 384 U.S. 214 (1966)........................................................................ 41
NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).................................... 51, 54
Reno v. Aclu, 521 U.S. 844 (1997) ............................................................................... 47
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ............................................................. 51
Sabri v. United States, 541 U.S. 600 (2004) ............................................................... 43
Scales v. Unites States, 367 U.S. 203 (1961) .............................................................. 52
Staples v. United States, 511 U.S. 600 (1994) ................................................ 18, 23, 24
Turner Broad. Sys., Inc. v. Fed. Commc’ns Comm’n, 512 U.S. 622 (1994) ............... 41
United States v. Marzook, 383 F. Supp. 2d 1056 (N.D. Ill. 2005) ............................. 52
United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803 (2000) ........................ 45, 47
United States Court of Appeals Cases
Al Haramain Islamic Foundation v. U.S. Dep’t of Treasury, 686 F.3d 965 (9th Cir.
2012) .......................................................................................................................... 45
Langel v. United States, 451 F.2d 957 (8th Cir. 1971)............................................... 20
McCoy v. Stewart, 282 F.3d 626 (9th Cir. 2002).......................................................... 44
United States v Farhane, 634 F.3d 127 (2d Cir. 2011) ........................................ 55, 57
United States v. Al Kassar, 660 F.3d 108 (2d Cir. N.Y. 2011) ................................... 37
United States v. Amawi, 695 F.3d 457 (6th Cir. 2012) ............................................... 39
United States v. Augustin, 661 F.3d 1105 (11th Cir. 2011) ........................................ 56
United States v. Berres, 777 F.3d 1083 (10th Cir. 2015) ........................................... 33
United States v. Chandia, 514 F.3d 365 (4th Cir. 2008) ............................................. 52
United States v. Dempsey, 957 F.2d 831 (11th Cir. 1992) ......................................... 28
United States v. Hamrick, 43 F.3d 877 (4th Cir. 1995) ............................................. 28
United States v. Jackman, 72 F. App'x 862 (3d Cir. 2003) ........................................ 23
United States v. Johnson, 152 F.3d 618 (7th Cir.1998) ....................................... 20, 29
United States v. Kaziu, 559 Fed. Appx. 32 (2d Cir. 2014) ......................................... 57
United States v. Langan, 263 F.3d 613 (6th Cir. 2001) ............................................. 31
United States v. Markley, 567 F.2d 523 (1st Cir. 1977)....................................... 19, 33
United States v. Mehanna, 735 F.3d 32 (1st Cir. 2013) ........................................ 56, 57
United States v. Morningstar, 456 F.2d 278 (4th Cir. 1972) ..................................... 20
United States v. Mustafa, 406 Fed. Appx. 526 (2d Cir. 2011) ................................... 39
United States v. Neal, 692 F.2d 1296 (10th Cir. 1982) .............................................. 19
v
United States v. Oba, 448 F.2d 892 (9th Cir. 1971) ....................................... 18, 20, 26
United States v. Posnjak, 457 F.2d 1110 (2d Cir. 1972) .......................... 18, 19, 25, 32
United States v. Rushcamp, 526 F.2d 1380 (6th Cir. 1975) ...................................... 21
United States v. Saunders, 166 F.3d 907 (7th Cir.1999) ........................................... 22
United States v. Simmons, 83 F.3d 686 (4th Cir. 1996)............................................. 24
United States v. Spoerke, 568 F.3d 1236 (11th Cir. 2009)............................. 19, 26, 27
United States v. Tankersley, 492 F.2d 962 (7th Cir. 1974) ....................................... 31
United States v. Tomkins, 782 F.3d 338 (7th Cir. 2015) ........................................... 33
United States v. Urban, 140 F.3d 229 (3d Cir. 1998) ................................................. 33
United States v. Wilson, 546 F.2d 1175 (5th Cir. 1977)............................................. 20
United States District Court Cases
Sokolow v. Palestine Liberation Organization, 60 F. Supp. 3d 509 (S.D.N.Y. 2014)
............................................................................................................................. 36, 37
United States v. Assi, 414 F. Supp. 2d 707 (E.D. Mich. 2006)....................... 36, 52, 53
United States v. Lindh, 212 F. Supp. 2d 541 (E.D. Va. 2002) ................................... 37
United States v. Pearce, 86 F. App'x 919 (6th Cir. 2004) .......................................... 31
United States v. Warsame, 537 F. Supp. 2d 1005 (D. Minn. 2008) ............... 39, 52, 53
United States v. Worstine, 808 F.Supp. 663 (N.D. Ind. 1992) ................................... 29
Constitutional Provisions
U.S. CONST. amend. I ............................................................................................. 42, 51
Statutes
18 U.S.C. § 2339A ................................................................................................ passim
18 U.S.C. § 2339B ................................................................................................ passim
26 U.S.C. § 5845 ................................................................................................... passim
Other Authorities
142 Cong. Rec. S3352-01 S7548 (daily ed. Apr. 16, 1996) (statement of Sen. Hatch)
................................................................................................................................... 42
AEDPA, Pub. L. No. 104-132, § 302-03, 110 Stat. 1214 (1996) ................................. 34
AEDPA, Pub. L. No. 104-132, § 303, 110 Stat. 1214 (1996)....................................... 34
Black’s Law Dictionary 1827 (10th ed. 2014) .............................................................. 36
Christopher Harress, ISIS Weapons Growing In Number, Sophistication: A Soviet,
Balkan And American Mix, But The Group Can’t Use All Of Them, INT’L
BUSINESS TIMES (Aug. 15, 2014 8:32 AM), http://www.ibtimes.com/isis-weaponsgrowing-number-sophistication-soviet-balkan-american-mix-group-cant-use-all1659176 ..................................................................................................................... 38
vi
Counterterrorism White Paper, Counterterrorism Section, DEP’T OF JUSTICE, at 14
(June 22, 2006), available at
http://trac.syr.edu/tracreports/terrorism/169/include/terrorism.whitepaper.pdf .. 47
Counterterrorism White Paper, Counterterrorism Section, DEP’T OF JUSTICE, at 14
(June 22, 2006), available at
http://trac.syr.edu/tracreports/terrorism/169/include/terrorism.whitepaper.pdf
(describing the material support statute as “one of the cornerstones of [the Dep’t
of Justice’s] prosecution efforts) ............................................................................... 47
IRTPA, Pub. L. 108-458, § 6603, 118 Stat. 3638 (2004) ............................................. 34
Katherine E. Beyer, Note, Busting the Ghost Guns: A Technical, Statutory, and
Practical Approach to the 3-D Printed Weapon Problem, 103 KY. L.J. 433 (2014) 27
Leti Volpp, The Boston Bombers, 82 FORDHAM L. REV. 2209 (2014) ......................... 25
Lisa Ferdinando, DoD Needs to Improve Cyber Culture, CIO says, U.S. DoD,
available at http://www.defense.gov/News-Article-View/Article/626607/dod-needsto-improve-cyber-culture-cio-says ............................................................................ 46
Marjoire Heins, The Supreme Court and Political Speech in the 21st Century: The
Implications of Holder v. Humanitarian Law Project, 76 ALB. L. REV. 561 (2013) 44
S. REP. NO. 90-1501, pt. 47 (1968) ............................................................................... 19
Terror Hits Home: The Oklahoma City Bombing, THE FBI,
https://www.fbi.gov/about-us/history/famous-cases/oklahoma-city-bombing. ....... 34
Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001, Pub. L. 10756, § 805, 115 Stat. 272 (2001) ................................................................................. 34
State Court Cases
Enoch v. State, 95 So. 3d 344 (Fla. Dist. Ct. App. 1st Dist. 2012) ............................. 46
vii
OPINIONS BELOW
The opinion of United State District Court for the Central District of New Tejas
is unreported and has not been reproduced in the Record. R. at 2.1 The United States
Court of Appeals for the Fourteenth Circuit’s opinion is unreported; however, it
appears in the Record at pages 2-27.
CONSTITUTIONAL AND STATUTORY PROVISIONS
This case involves the First Amendment to the United States Constitution,
U.S. CONST. amend. I., which states that “Congress shall make no law… abridging
the freedom of speech, or of the press; or the right of the people peaceably to
assemble…”
This matter also involves 26 U.S.C. § 5845(f)(3) and 18 U.S.C. §§ 2339B and
2339A. Specifically, a person is proscribed from “knowingly provid[ing] material
support or resources to a foreign terrorist organization, or attempt[ing] or
conspir[ing] to do so.” 18 U.S.C. § 2339B(a)(1). Material support includes, “training,
expert advice or assistance… weapons, lethal substances, [and] explosives.” 18 U.S.C.
§ 2339A(b)(1).
In addition, a person may not possess an unregistered destructive device,
including:
(1) any explosive, incendiary, or poison gas (A) bomb, (B)
grenade, (C) rocket having a propellant charge of more
than four ounces, (D) missile having an explosive or
incendiary charge of more than one-quarter ounce, (E)
mine, or (F) similar device; (2) any type of weapon by
whatever name known which will, or which may be readily
1
“R.” refers to Record on Appeal.
viii
converted to, expel a projectile by the action of an explosive
or other propellant… and (3) any combination of parts
either designed or intended for use in converting any device
into a destructive device as defined in subparagraphs (1)
and (2) and from which a destructive device may be readily
assembled.
26 U.S.C. § 5845(f).
ix
STATEMENT OF JURISDICTION
Petitioner appeals the conviction entered by the United States District Court
for the Central District of New Tejas and affirmed by the United States Court of
Appeals for the Fourteenth Circuit under 26 U.S.C. § 5845(f)(3) and 18 U.S.C. §
2339B. R. at 2. The district court had original jurisdiction pursuant to 28 U.S.C. §
1331. The Fourteenth Circuit had jurisdiction over the appeal pursuant to 28 U.S.C.
§ 1291. This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1254(1),
which provides that a federal court’s decision may be reviewed “by writ of certiorari
granted upon the petition of any party… before or after rendition of judgment or
decree.”
STATEMENT OF THE CASE
A. Statement of Facts
Emmaline Borne (“Petitioner”) and Fiona Triton, applied to “Technical
Promise,” a study abroad program in Azran, in the Fall of 2001 with the help of their
physics teacher at Harrisburg High School, Adilda Ascot. R. at 2-3. The relationship
between Ascot and Petitioner grew during the process, and they met regularly after
school to learn an advanced computer program called C++. R. at 2, 4. In February,
both girls were accepted. Id. at 4.
The ten-week program at the University of
Misthallery in Azran began on June 4, 2012. Id. at 4-5.
Soon thereafter, the National Security Agency (“NSA”) experienced a
detrimental data breach which caused millions of stolen documents to flood the
Darknet, an unregulated area of the internet commonly used by “hacktivist groups.”
Id. at 5. Clive Allen, a former NSA agent and University of Misthallery graduate,
1
claimed responsibility for this breach and revealed himself to be “Millions” of Dixie
Millions (“DM”), a hacktivist group. Id. at 5, 6. In December 2011, the United States
Secretary of State declared DM a foreign terrorist organization (“FTO”). R. at 5.
Websites across the internet were plagued by DM’s successful hacking and
subsequent “scandalous document dump[s].”
Id. at 5-6.
In March 2012, Allen
announced he was retiring in Azran, where he was granted asylum. Id. at 6. The
United States began negotiations for Allen’s arrest and extradition; however, talks
were abruptly halted when Allen gave the “Azranian government several documents
showing the NSA had recorded private communications between the Azranian
Ambassador to the UN and the Azranian Prime Minister.” Id. The other leader of
DM has yet to be identified. R. at 6.
In April 2012, Petitioner spoke with Ms. Triton’s father about a new 3D printer
he bought to develop a break-through plastic filaments formula. Id. at 7. He was
having issues with the coding on the machine, and accepted Petitioner’s offer to help
remedy the problem. Id. Petitioner asked Ascot for assistance; a conversation about
DM and their recent WOM database hack, which revealed the game developers’
illegal sale of user lists, ensued. Id. Ascot admired Allen and commended “Dixie” on
the hacker’s clever evasion of capture for so long. R. at 7. She hoped that “people
would realize all the good Dixie Millions was doing in the world.” Id.
Ascot finished the coding that weekend. R. at 8. On May 1, 2012, Petitioner
showed Mr. Triton the finished code, and took complete credit for the work. Id. at 89. Two days later, Mr. Triton downloaded 3D handgun plans from the internet onto
2
a solid gold-colored “USB stick” with the hopes of combining the plastic filament
formula to create “an extremely valuable product.”
R. at 9.
Meanwhile, Ascot
revealed to Petitioner and Ms. Triton that she participated in Technical Promise in
2002, the same time that Allen attended the school as a full-time student. Id. at 6, 9.
On May 5, 2015, Petitioner and Mr. Triton designed and printed a perfect
cylinder, with a thicker-than-usual layer to increase its stability; Petitioner kept it as
a trophy. R. at 10. Mr. Triton and his daughter continued to work on his formula for
a stronger plastic filament, however.
R. at 10-11.
The technicalities were
troublesome; thus, Ms. Triton downloaded the formula onto a USB drive shaped like
a famous cartoon robot so she could bring it to professors in Azran for help. R. at 11.
Meanwhile, Petitioner began an intensive search into Allen. Id. She wanted
to be a “White Hat Hacker” and “become a force for good in the universe.” Id. Allen,
Petitioner believed, was the perfect role model to achieve this end. Id. Her first goal,
was to find and meet Allen while she is in Azran. Id. To do so, Petitioner scoured
sites in Darknet to find information on Allen. Id. Next, she devised a spreadsheet
that detailed the places at which he was recently cited and a description of the
disguise he was wearing (from his clothes to his wigs). R. at 11-12. After analyzing
this data, his next projected appearance would be on June 5, 2012 at a café on the
University of Misthallery campus. Id. at 12. Petitioner would be in Azran by then,
and put a reminder, “Meet Clive Allen at Café,” on her smartphone so she would not
forget. Id.
3
As a going away present, Mr. Triton compiled a playlist of songs, on a goldencolored USB drive, for them to listen to. Id. On the way to the airport, Mr. Triton’s
car got pulled over. Id. While the officer was near the car, Petitioner’s reminder
alerted, displaying “Meet Clive Allen at Café” on her screen. Id. at 14. Knowing that
Allen’s associate may be operating in the area, the officer immediately placed the
girls under arrest. R. at 15.
In search of Ms. Triton’s bag, incident to arrest, they found the USB drive
containing her dad’s formula. Id. The officer seized “matches, hairspray, the 3Dprinted cylinder, a purple USB drive containing the curve code, the spreadsheet
tracking Mr. Allen, and the picture of the Mr. Allen computer-generated character”
she printed for reference from Petitioner’s bag. R. at 16. The gold USB drive, which
contained the plans for a 3D-printed gun, was also seized. Id.
The FBI was immediately contacted. Id. The investigation revealed that Ascot
had quit her job at Harrisburg High and fled her home upon learning of the girls’
arrest. Id. Ascot has not yet been located. Id.
Petitioner, Ms. Triton and Mr. Triton were all subsequently indicted by the
U.S. Attorney’s Office. Id.
B. Procedural History
At trial, experts testified to the following: (1) Petitioner urged hackers to reveal
“malicious corporate and government lies that hurt people;” (2) her Twitter activity,
including the post, “With one wish, I wish all guns would blow up.#guncontrol” and
various pro-DM articles; (3) that the plastic filaments formula and the gun plans
could create a gun that explodes when the trigger is pulled; significant bodily harm
4
or death is certain for the user and those in close proximity; and (4) that a bomb could
be made with the hairspray, matches, 3D-printed cylinder, and other miscellaneous
items found in Petitioner’s bag. R. at 17-18.
The FBI was nearly certain that Ascot
is the “Dixie” in Dixie Millions and Petitioner testified that “it would be ‘pretty cool’”
if that were the case. Id. at 17.
Petitioner was convicted for violating 26 U.S.C. § 5845(f)(3) and 28 U.S.C. §
2339B and sentenced to serve a total of fifteen years in prison. Id.
On appeal to the Fourteenth Circuit, Petitioner claimed that the items found
in her possession had legitimate social applications, “including the advancement of
societal knowledge.”
R. at 19.
Petitioner urged the court to apply the purely
subjective standard, under 26 U.S.C. § 5845(f)(3), and claimed that her motivations
were pure and perpetuated by her desire to meet her “idol.” R. at 20. The court
denied Petitioner’s request and applied the hybrid standard established by United
States v. Rushcamp, 526 F.2d 1380, 1382 (6th Cir. 1975), and further developed by
United States v. Johnson, 152 F.3d 618, 628 (7th Cir.1998).
In so doing, the
Fourteenth Circuit upheld Petitioner’s conviction, finding that the combination of 3D
gun plans, plastic filaments formula, hairspray, matches, and plastic cylinder could
be (and were intended to be) used to create a destructive device within the scope of
the Act.
Additionally, Petitioner claimed that 28 U.S.C. § 2339B violated her freedom
of speech and right to association under both a facial, strict-scrutiny challenge and
on an as-applied basis. R. at 21. She also asserted that there was insufficient
5
evidence to prove she intended to support DM and that she had not yet performed
any criminal act on behalf of DM. Id. at 22. Finally, Petitioner asserted that the
computer code intended for DM was harmless on its face and/or easy for the duo to
get on its own, and therefore not material. Id. at 23.
The court invoked Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) to
decline the strict scrutiny argument, and rejected an application of the “clear and
present danger” test established in Brandenburg v. Ohio, 395 U.S. 444 (1969). R. at
21. Petitioner’s actions were coordinated with DM because she already engaged in
activities to further its goals. Id. The Fourteenth Circuit held that her contributions
would help raise capital for DM, which it could then use for terroristic activities. Id.
Material support was established because “‘[m]aterial is not limited to the realm of
tangible.” R. at 23. Any enrichment, innocent or not, to the terrorist group is
prohibited by this statute, and by providing this code, DM saved money and time. Id.
The lower court’s decision was therefore affirmed. Id. at 24.
SUMMARY OF THE ARGUMENT
This Court should affirm the Fourteenth Circuit’s decision to uphold
Petitioner’s conviction for possessing a “firearm” not registered to her in the National
Firearms Registration and Transfer Record. In doing so, this Court should find that
the application of the Rushcamp hybrid standard is the correct method in
determining whether or not a device is a “destructive device” regulated by 26 U.S.C.
§ 5845(f)(3) of the Gun Control Act of 1968 (amending the National Firearms Act ).
Petitioner possessed more than one destructive device, either defined as an “(1)
6
explosive…(A) bomb” or “(3) any combination of parts either designed or intended for
use in converting any device into a destructive device as defined in…(1)…” U.S.C. §
5845(f)(1), (3). Circuits are divided as to the appropriate standard to apply to the
subsection (3) combination of parts “designed” or “intended” analysis, and resort to
either a purely subjective or purely objective standard.
In choosing the hybrid
standard delineated by United States v. Rushcamp, 526 F.2d 1380, 1382 (6th Cir.
1975), this Court would provide a uniform two-step analysis for determining whether
or not the items in Petitioner’s possession could be regulated as a destructive device,
combining the strengths of both standards into one.
The first step in applying the hybrid standard to Petitioner’s case involves
analyzing the objective nature of the items she possessed and the possibility of
legitimate societal and personal uses for them. United States v. Johnson, 152 F.3d
618, 628 (7th Cir.1998). The combination of the 3D gun plans and plastic filament
formula, as well as the hairspray, matches, and plastic cylinder (pipe-like object) can
be used to make two separate explosive devices: an exploding gun and a pipe bomb.
R. at 18.
In their individual capacities, the component parts are not explicitly
regulated by the firearms statute without the “designed or intended” element found
in subsection (3). If non-weapon, legitimate uses for the devices exist, however, the
court must proceed to the second step in the inquiry. The subjective intent of the
Petitioner in using the individual parts to create a destructive device is found in her
motivations behind planning to meet with a known FTO and deliver destructive
7
devices to him, tweeting messages about explosive guns, and her repeated desires to
become a White Hat Hacker and join the company of Dixie Millions. R. at 20.
The items in Petitioner’s possession fall within the Act’s definition of
“destructive device[s]” whether a purely subjective, objective, or hybrid standard is
used.
The items not only create objectively designed destructive devices, but
Petitioner’s subjective intent behind the construction of these devices is sufficient to
uphold her conviction under the Act.
This Court should also affirm the Fourteenth Circuit’s finding that the
material support statute, 28 U.S.C. § 2339B, did not violate Petitioner’s First
Amendment right to association and freedom of speech on an as-applied basis. First,
Petitioner’s conduct fits within that which the statute prohibits.
A person is
proscribed from “provid[ing] material support” to a known FTO.
18 U.S.C. §
2339B(a)(1). Providing a computer code that can be used to make the essential
element of a homemade bomb qualifies as material support because the item itself is
a weapon, and the act of demonstrating the code constitutes training and expert
advice or assistance. See generally 18 U.S.C. § 2339A (including weapons, training,
and expert advice or assistance in the definition of material support).
Second,
Petitioner’s First Amendment right to association and freedom of speech is not
violated via conviction under the material support statute. A facial challenge lacks
backbone considering this Court’s previous finding of constitutionality in Holder v.
Humanitarian Law Project, 561 U.S. 1 (2010). Further, the test established in
Brandenburg v. Ohio is inapplicable when dealing with material support to an FTO.
8
395 U.S. 444 (1969). Petitioner is still allowed to meet Mr. Allen, and even join the
FTO; the statute prohibits providing material support to the organization. Finally,
there was sufficient evidence to prosecute the Petitioner under 18 U.S.C. § 2339B
because the Record demonstrates she was aware that DM was an FTO.
Her
conviction under attempt was proper because she intended to provide material
support to DM and made substantial steps to achieve that mission, including tracing
his whereabouts, bringing the computer code and sample cylinder, setting her
calendar reminder, and traveling to the airport.
9
ARGUMENT
I.
THE RUSHCAMP HYBRID STANDARD CORRECTLY APPLIES TO
INDIVIDUALS CHARGED UNDER 26 U.S.C. § 5845(f)(3) OF THE NATIONAL
FIREARMS ACT OF 1934 AND REQUIRES THIS COURT TO AFFIRM THE
LOWER COURTS’ FINDING OF PETIONER’S GUILT.
The original National Firearms Act (the “Act”) of 1934 created a means by
which Congress could “impose[s] strict registration requirements on statutorily
defined ‘firearms.’” Staples v. United States, 511 U.S. 600, 602 (1994). Originally
inspired by the dangers of untracked and unregulated automatic weapons, such as
machineguns, the Act was amended by Title II of the Gun Control Act in 1968 (the
“GCA”) to evolve with the prevalent weapons of that particular era. See United States
v. Oba, 448 F.2d 892, 897 (9th Cir. 1971). The statutes were “intended to regulate
the importation, possession, and transfer of weapons, particularly guns, and to stem
the traffic in certain unusually dangerous weapons, including ‘destructive devices,’
for which Congress saw no legitimate uses.” United States v. Posnjak, 457 F.2d 1110,
1111 (2d Cir. 1972).
While machineguns and other “gangster-type” weapons were specifically
named in the Title II amendment, 26 U.S.C. § 5801 et seq., another category of
firearms was incorporated for registration, destructive devices. See United States v.
Oba, at 895, 897. Pursuant to 26 U.S.C. § 5845, “a defendant may not possess an
unregistered ‘destructive device,’” defined as:
(1) any explosive, incendiary, or poison gas (A) bomb, (B)
grenade, (C) rocket having a propellant charge of more
than four ounces, (D) missile having an explosive or
incendiary charge of more than one-quarter ounce, (E)
mine, or (F) similar device; (2) any type of weapon by
10
whatever name known which will, or which may be readily
converted to, expel a projectile by the action of an explosive
or other propellant, the barrel or barrels of which have a
bore of more than one-half inch in diameter, except a
shotgun or shotgun shell which the Secretary finds is
generally recognized as particularly suitable for sporting
purposes; and (3) any combination of parts either designed
or intended for use in converting any device into a
destructive device as defined in subparagraphs (1) and (2)
and from which a destructive device may be readily
assembled.
26 U.S.C.A. § 5845 (emphasis added). Congress determined that a device could be
“‘converted’ into a destructive device as defined in Subparagraphs (1) and (2) by way
of ‘design or intent.’” See S. REP. NO. 90-1501, pt. 47 (1968). The government must
prove the following: (a) that a device was converted, or convertible, into a destructive
device using component parts, and (b) those individual component parts were
intended or designed to make that destructive device. A tri-partisan split exists as
to whether intent is relevant in “determining if component parts constitute a
destructive device under § 5845(f).” United States v. Spoerke, 568 F.3d 1236, 1247
(11th Cir. 2009).
The First, Second, and Tenth Circuits maintain that the intent of the
individual possessing or using the weapons in question is irrelevant. Posnjak, 457
F.2d at 1116; See also United States v. Markley, 567 F.2d 523, 527 (1st Cir. 1977);
United States v. Neal, 692 F.2d 1296, 1304 (10th Cir. 1982). Applying the objective
standard, these circuits “concentrate on objectively identifiable weapons of war…”
and do not look to subjective intent when considering whether component parts have
legitimate societal uses exempting them from regulation. Posnjak, 457 F.2d at 1116.
11
The Fourth, Fifth, Eighth, and Ninth Circuits analyze this issue using a
subjective standard, and find the defendant’s intent wholly relevant in categorizing
the device as statutorily destructive. See United States v. Wilson, 546 F.2d 1175,
1177 (5th Cir. 1977); See also Langel v. United States, 451 F.2d 957, 962 (8th Cir.
1971); United States v. Morningstar, 456 F.2d 278, 281 (4th Cir. 1972); United States
v. Oba, 448 F.2d 892 (9th Cir. 1971). These circuits hold that explosives not explicitly
named in subsection (1) or (2) of the Act may still be proscribed “depending on their
intended use.” United States v. Morningstar, 456 F.2d 278 (4th Cir. 1972). Thus, an
individual’s subjective intent to create a destructive device with component parts,
even if not specifically identified by the Act, is determinative.
The remaining circuits analyze intent using a bilateral or hybrid approach.
The Third, Sixth, and Seventh Circuits first determine whether “the objective design
of the device or component parts indicates that the object may only be used as a
weapon, i.e., for no legitimate social or commercial purpose…” United States v.
Johnson, 152 F.3d 618, 628 (7th Cir.1998). If the court fails to find a legitimate
purpose for the component parts, the analysis ends and the device is labelled a
destructive device. Id. However, if there are legitimate uses for the component parts,
“then subjective intent is an appropriate consideration in determining whether the
device or parts at issue constitute a destructive device under subpart (3).” Id. The
Sixth Circuit in United States v. Rushcamp recognized that when a seemingly
innocuous item, found instrumental to the creation of a home-made bomb, is in
question, the court must analyze its intended role in the final product, which then
12
qualifies the device as a destructive device under subpart (3). See United States v.
Rushcamp, 526 F.2d 1380, 1382 (6th Cir. 1975) (quoting the District Judge in his
opinion, highlighting the importance of analyzing objectively non-criminal items
through a subjective intent lens).
The Petitioner urges this Court to apply the purely subjective test, however,
this standard falls short of Congress’s intent for the meaning of “destructive device.”
Rather, the Rushcamp standard should be applied to all individuals charged under
26 U.S.C. § 5845(f)(3), because it reconciles the strengths and weaknesses of both the
subjective and objective standards.
A. This Court Should Resolve The Circuit Split And Find That The Rushcamp
Hybrid Standard Governs, Because a Purely Objective or Purely Subjective
Standard Fails To Accomplish The Goals of 26 U.S.C. § 5845(F)(3).
Of the three possible ways to interpret the language of National Firearms Act,
26 U.S.C. § 5845(f)(3), the Rushcamp hybrid standard adopted by the Seventh and
Third Circuits is the most suitable and should be applied by this Court. The language
of the statute, defining “destructive device,” incorporates both objectivity, as well as
subjectivity:
(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.
26 U.S.C. § 5845(f) (emphasis added). The reference to subsections (1) and (2) speaks
to the analysis of a completed device’s objective nature and whether it could serve a
legitimate, non-weapon purpose. See Johnson, 152 F.3d at 627 (stating that “[i]n
those cases, the only issue is whether the objective characteristics of the device bring
13
it within the ambit of the statute.”). The term “intended” speaks to the possessor’s
subjective intent to form a weapon and thus regulatable by the Act. Id. (noting that
“a person found to possess unassembled component parts or an assembled
combination of parts that is less clearly within the ambit of subpart (1)…”). As such,
the most appropriate standard applied to subsection (3) of the Act is the hybrid
standard.
This case is an example of how the hybrid standard delivers the most just
outcome in situations involving objectively benign items combined with subjectively
malicious intent. Where an unquestionably innocent person possesses a combination
of items assembled into a destructive device under subsection (1) or (2), detonable or
not, bringing an element of subjective intent into the standard removes the heavy
burden of strict liability. An individual may simply possess items that could be
converted into a destructive device, but are actually intended for a purpose consistent
with societal norms. Thus, it is equitable to consider both objective and subjective
factors because, after all, “the ‘destructive device’ definition contained in 26 U.S.C. §
5845(f) was intended to operate in a precise but flexible manner.” Id.
The Rushcamp hybrid standard still requires a preliminary objective analysis
of the actual device, constructed or constructible, to determine whether the completed
result is a device regulated by the Act. Id. At 628. Including the objective element
prevents weapons with no “legitimate social or commercial purpose” from escaping
prosecution simply because the possessor’s intent was sufficiently benign. Id.; See
also United States v. Saunders, 166 F.3d 907, 914 (7th Cir.1999) (finding subjective
14
intent irrelevant to the analysis if the “objective design of the device indicates that
the object serves no legitimate social or commercial purpose…”). A subjective intent
inquiry becomes integral “only when the objective characteristics of the device
demonstrate that it may not be a weapon.” United States v. Jackman, 72 F. App'x
862, 865 (3d Cir. 2003) (quoting Johnson, 152 F.3d at 627).
In essence, the Rushcamp standard provides a uniform application, resulting
in a marriage of the opposing standards for practical use by all circuits. Courts that
use the objective standard and analyze devices strictly mentioned by subsections (1)
and (2), due to their reluctance to expand the list of regulatable firearms, will find
that the hybrid standard still performs their desired analysis in its first step. The
remaining circuits require a mens rea component, the importance of which has been
established by this Court in Staples v. United States, because Congress included the
words “designed” or “intended.” See 511 U.S. 600 (1994). Even these courts will have
an opportunity to conduct a subjective analysis for situations in which the presence
of a clear destructive device is not readily apparent.
The purely objective standard produces inconsistent results when applied to
the component parts under subsection (3), which are then converted into destructive
devices named by subsections (1) or (2). In a purely objective court, an individual
may claim that the objects found in his/her possession are innocuous because they
have the ability to inform or advance societal knowledge to varying degrees. For
example, the components of a Molotov Cocktail, “a device comprising a bottle,
gasoline, and a rag,” may all be “legally possessed” in their individual capacities.
15
United States v. Simmons, 83 F.3d 686, 687 (4th Cir. 1996). Applying the objective
standard, prosecution would fail because the individual’s relevant intent would be
excluded from the court’s determination of fault. R. at 19-20. In other words, the
purely objective standard is under-inclusive when applied on its own.
Proponents of the purely objective standard argue that intent is not relevant
because Congress “made no mention of devices made criminal because of the intent
of the possessor…” Posnjak, 457 F.2d at 1117. This reasoning fails to apply the
general rules of statutory interpretation, and disregards this Court’s subsequent
clarifications pointing to the contrary:
[The] [f]act that [a] criminal statute is silent concerning
mens rea required for violation does not necessarily
suggest that Congress intended to dispense with
conventional mens rea element, which would require that
defendant know facts that make his conduct illegal; rather,
court must construe statute in light of background rules of
common law, in which requirements of some mens rea for
crime is firmly embedded.
Staples v. United States, 511 U.S. 600 (1994). A mens rea requirement is found in
the plain reading of subsection (3), where the words “intended” and “designed” are
included. See Morningstar, 456 F.2d at 280.
The purely subjective standard would free otherwise guilty defendants, absent
some form of a confession or stipulation as to their subjective intent. See Oba, 448
F.2d at 894 (finding that where the defendant entered a guilty plea admitting his
intent to use commercial dynamite to form a weapon, subjective intent was clearly
proven.). Defendants, such as Petitioner, favor this standard because actual intent
is difficult to prove. For instance, subjective intent can be masked and convoluted in
16
such a way that a person’s true intent remains hidden. As the Fourteenth Circuit
noted, terrorist organizations typically recruit from groups of very young people
whose subjective intent could not be readily proven or disproven. R. at 20. A recent
example of masked intent is illustrated in the Boston Bombers case. A 21-year old
man was prosecuted for detonating a homemade pressure cooker bomb with his
brother during the Boston Marathon, and was described by friends as “just a normal
American kid.” See Leti Volpp, The Boston Bombers, 82 FORDHAM L. REV. 2209, 2220
(2014). The government would be severely disadvantaged if that court applied the
subjective intent standard, because it would have to prove the defendant’s inner
thoughts.
Petitioner urges this Court to adopt a purely subjective standard in an effort
to justify possession of the individual items found in or near her luggage at the time
of arrest, including the hairspray, matches, plastic cylinder, 3D gun plans, and plastic
filaments formula. R. at 18, 20. This approach, however, is the least likely to serve
the Act’s purpose and most likely to permit otherwise-guilty criminals to freely
possess component parts capable of creating a destructive device under subsections
(1) or (2). R. at 19. Essentially, if the component parts were not intended or designed
to create a destructive device under subsection (1) or (2), the individual would escape
charges under § 5845(f)(3) altogether. Posnjak, 457 F.2d at 1117. This Court should
rule uphold Fourteenth Circuit’s finding that the purely subjective standard is not
appropriate, and therefore, inapplicable to individuals charged under § 5845(f)(3). R.
at 19, 24.
17
B. Applying The Rushcamp Hybrid Standard When Evaluating Petitioner’s
Chargeability Under 26 U.S.C. § 5845(F)(3), The Combination of Items in
Petitioner’s Possession at The Time of Arrest Fall Within The Scope of The
“Destructive Device” Definition Intended by Congress.
Subsection (1) and (2) of § 5845(f) enumerate categories of weapons classified
as destructive devices that must be registered under the Act. Oba, 448 F.2d at 900.
Subsection (3) is the catchall provision, thereby encompassing those weapons
intended or designed to be converted into a destructive device under subsections (1)
or (2). See Oba, 448 F.2d at 900. A device equipped with “design features that
eliminate any claimed entertainment or other benign value supports a finding that a
device was designed as a weapon.” Spoerke, 568 F.3d at 1236. To conduct the
Rushcamp hybrid analysis, this Court must look to the two distinct destructive
devices present in this case: the 3D gun plans with the plastic filaments formula and
the pipe bomb made from the hairspray, matches, and plastic cylinder. R. at 18.
First, the 3D gun plans and plastic filaments formula are analogous to an
explosive device defined in § 5845(f)(1)(A) and (F), as well as those falling under in §
5845(f)(2):
(f) Destructive device. The term “destructive device” means
(1) any explosive, incendiary, or poison gas (A) bomb, (B)
grenade … (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 …
26 U.S.C. § 5845. According to the FBI expert’s testimony, the plastic filaments
formula and 3D gun plans, when combined, successfully and readily transform into
an explosive device that expels a projectile. R. at 18. While 3D printed explosive
18
devices are not expressly excluded under §5845(f)(1) or (2), recent developments in
emerging technology suggest a pressing need to incorporate these devices into the
Act. The confusion as to whether 3D printed explosive devices are governed by the
Act is due to legislative delay; the Act has not yet caught up with “self-made
weapons.” See Katherine E. Beyer, Note, Busting the Ghost Guns: A Technical,
Statutory, and Practical Approach to the 3-D Printed Weapon Problem, 103 KY. L.J.
433, 442 (2014) (“Unfortunately, it seems as though these laws are soon to be
rendered outdated and under-inclusive as 3-D printing of guns becomes more
accessible and prolific.”). Nonetheless, such devices are still “destructive” due to their
design and ability to convert into tangible explosive devices. Therefore, an inquiry
into Petitioner’s intent regarding the explosive gun, described above, is unnecessary
because no legitimate social or commercial purpose can be argued.
Second, the hairspray, 3D-printed cylinder, and matches found at the time of
arrest can be converted into a rudimentary pipe bomb regulated under Section
5845(f)(3), with the finished product falling under the (1)(A) definition: an explosive
bomb. 26 U.S.C. § 5845(f) . The testimony introduced at trial confirmed that the
combined components do, in fact, make an explosive bomb, and is therefore sufficient
to conclude that the device is a destructive device. See Spoerke, 568 F.3d at 1243
(finding that evidence of the destructive nature of the improvised explosive devices
was sufficient to uphold conviction where the device was designed as a weapon).
Additionally, “the critical inquiry is whether the device, as designed, has any value
other than as a weapon.” Id. at 1247. The 3D cylinder (pipe function), hairspray
19
(pressurized contents), and matches (igniting agent) can have no value outside of the
weapons category because, similar to the devices in Spoerke, they have “no social or
entertainment use, they propel[] fragments, and the fragments were capable of
causing severe injury to people in the vicinity.” Id. Pipe bombs are particularly
dangerous and courts have recognized their inherently harmful nature as being
“dangerous, indiscriminate, anti-personnel and capable of seriously injuring a
number of people at one time.” United States v. Dempsey, 957 F.2d 831, 834 (11th
Cir. 1992).
1. If Petitioner’s Subjective Intent is Found Relevant to The Application
of The Rushcamp Hybrid Standard, The Fourteenth Circuit Court of
Appeal’s Conclusion Regarding Her Motives is Correct.
The Ninth Circuit in Oba explained that within the definition of “‘firearms’
covered by the Act” were destructive devices “having …no appropriate private use.”
Oba, 448 F.2d at 897. If this Court finds that the devices’ components have objectively
appropriate private or legitimate social uses, the second phase of the Rushcamp
hybrid standard is triggered. To prevail, the Petitioner must demonstrate a lack of
intent to create the destructive devices through the introduction of alternative
motives for her actions.
Here, Petitioner’s plans to travel to Azran, meet a member of a FTO, and bring
explosive 3D gun plans supports an inference of intent. R. at 20; See also United
States v. Hamrick, 43 F.3d 877, 885 (4th Cir. 1995) (finding that an individual who
sent a dysfunctional bomb to the United States Attorney with awareness of its
destructibility did so with the requisite intent). Petitioner claims she was seeking
20
the approval of her “role model,” the only known leader of the FTO, in transporting
the components of the two destructive devices. R. at 20. The Seventh Circuit noted
in Johnson that “there well may be instances when the construction of a device,
objectively assessed, raises the reasonable possibility that it was designed as
something other than a destructive device.” Johnson, 152 F.3d at 627 (citing United
States v. Worstine, 808 F. Supp. 663, 664, 668–70 (N.D. Ind. 1992) (noting the obvious
design differences between a galvanized pipe bomb and PVC tubing “firecracker-type”
devices).
In the present context, a pipe bomb cannot be designed as something other
than a destructive device. There is no possible commercial or entertainment value
arising from the combination of the hairspray, matches, and plastic cylinder.
Petitioner brought the 3D gun plans and plastic filaments formula to impress her
idol, an FTO leader with proven hacking ability and a pension for computer generated
destruction. R. at 20. Petitioner does not deny the “terrorist sympathies” cited by
the Fourteenth Circuit, including her Darknet interactions and desire to become a
White Hat Hacker just like her FTO “role model,” but rather presents them as
innocent fan-like behavior. Id.; See also R. at 11. Petitioner’s alleged innocent
worship of a known terrorist cannot overcome the realities of her actions, which
require a “heightened scrutiny” because national security is clearly at issue. R. at 20.
Petitioner’s subjective intent to create a destructive device is deduced from the
following: Petitioner’s repeated expressed intent to become a professional hacker;
express intent to give the 3D gun plans and plastic filaments formula to DM; tweets
21
expressly stating her desire for all guns to “blow up;” and express intent to consult
and collaborate with a member of an FTO. R. at 11; 18.
The conclusion that Petitioner is “simply a young woman who was likely
manipulated by a person she trusted” is naïve and quite dangerous. R. at 25. This
“mixed-up teenager” was able to calculate the whereabouts of a known FTO using the
Darknet as her own personal mapping source. R. at 11. She created an extensive
spreadsheet detailing Allen’s most recent movement patterns and calculated his
precise location on the University of Misthallery campus for June 5th. Id. Petitioner
was also capable of adjusting the printing code of a 3D plastic cylinder so that it would
produce a perfectly curved model. R. at 10. Suggesting that the aforementioned skills
and actions are the product of an unsuspecting teenager is far too assuming. If this
Court incorporates subjective intent in this determination, it need not look beyond
the conduct DM, for whom the gun plans were brought. Thus, this Court should
affirm the Fourteenth Circuit in upholding Petitioner’s conviction under the Act
based on the objective nature of the destructive devices, as well as Petitioner’s
subjective intent to create the devices using the component parts.
2. The Devices’ Components Are Readily Convertible to Destructive
Devices and Petitioner Was Able to Do So.
Petitioner is subject to conviction for violating the Act for what she could do,
not what she might do. R. at 24 (Morgan, J., dissenting). Expert testimony at trial
established that the primitive bomb components could be readily converted into a
destructive device, i.e. an explosive pipe bomb. R. at 18. The items necessary to
construct the pipe bomb were located within Petitioner’s reach, evidencing that
22
creating a destructive device was possible. R. at 12. Where an individual was charged
under Section 5845(f)(3) for possessing “gun powders, fuses, blasting caps, and the
capped and drilled pipe segment,” the Sixth Circuit found that the government met
its burden by showing that the device was “readily convertible to a destructive
device.” United States v. Pearce, 86 F. App'x 919, 921 (6th Cir. 2004). The Court in
Pearce noted that “designed” within the context of the statute “refers to the objective,
physical structure or method of operation and not to the intent or schemes of the
possessor.” Id. (citing United States v. Langan, 263 F.3d 613, 625 (6th Cir. 2001)).
Thus, whether a device is readily convertible refers not to the intent to convert, but
rather the ability to convert, contravening Judge Morgan’s initial sentiments in the
dissent. R. at 24.
Here, an analysis of the 3D gun plans and plastic filaments formula was
conclusive in finding that, regardless of the inactive nature of the gun plans, the
combination could be readily converted into a destructive device. R. at 21; 18. Despite
their technological form, the blueprints for an explosive device can be converted into
an actual explosive with the requisite materials, such as a 3D printer, even if
Petitioner is not in immediate possession of those materials. See Simmons, 83 F.3d
at 686 (holding that a “‘Molotov cocktail’ was a destructive device, regardless of
whether defendant had means of lighting it.”). The gun plans and plastic filaments
formula satisfy the “readily convertible” requirement because the only missing
element is akin to the missing lighting agent described in Simmons. See Id. at 687
(citing United States v. Tankersley, 492 F.2d 962, 966 (7th Cir. 1974) (affirming
23
conviction for possession of a “destructive device” which consisted of “a bottle, a
firecracker and tape, and paint remover: the components of a Molotov cocktail”)).
A 3D blueprint for an explosive destructive device, in this case a mixture of a
gun and a bomb, is a product of unmatched technology, and thus, in need of “speedy
reform” to prevent damage caused by this statutory gap. See Beyer, supra, at 434.
This technology hit the market, only a little over a year ago
and users have already created fully functioning guns, one
million gun plans have been downloaded, and printer
prices have dropped from $10,000 to $1,000. Technology
moves fast, especially this type of innovative and
consumer-desired technology, and lawmakers need to keep
up.
Id. Thus, this Court should find that 3D gun plans fall within the scope of components
capable and designed or intended to be converted into a destructive device, thereby
affirming the decision to uphold Petitioner’s conviction under Section 5845(f)(3).
C. Even if This Court Applies The Purely Objective Standard, Petitioner’s
Conviction Satisfies The Statutory Requirement Because The Unassembled
Parts Found in Her Possession at The Time of Arrest Do Not Form an Object
With a Legitimate Social or Commercial Purpose.
If this Court chooses to follow the Second Circuit’s purely objective standard
articulated in Posnjak, Petitioner’s possession of the items combined to product an
item specified under (1) or (2) still satisfies the standard for regulation under the Act.
See Posnjak, 457 F.2d at 1117. As previously established through the first step of the
Rushcamp hybrid standard, the 3D guns plans and plastic filaments formula are
proven convertible into a destructive device that explodes upon each use. R. at 16.
Due to the dangerous nature of the pipe bomb and the explosive gun’s potential to
wreak havoc on the possessor and those within her immediate vicinity, possession of
24
the device or components designed to create the device are objectively within the
purview of the Act.
The Third Circuit in United States v. Urban found intent “irrelevant where it
is clear that components, when combined, would create a destructive device.” United
States v. Urban, 140 F.3d 229, 234 (3d Cir. 1998); See also United States v. Tomkins,
782 F.3d 338, 346 (7th Cir. 2015). Furthermore, the purpose of the statute would be
“ill-served by an interpretation which excluded from coverage ‘home-made’ bombs…”
Markley, 567 F.2d at 526-27 (quoting United States v. Curtis, 520 F.2d 1300 (1st Cir.
1975)).
The Tenth Circuit recently found the “[c]ombination of black powder
container, canon fuse, and electric matches could be considered [a] ‘destructive device’
within [the] meaning of [the] statute prohibiting possession of unregistered
destructive devices, even though disassembled…” United States v. Berres, 777 F.3d
1083 (10th Cir. 2015). Because the component parts in both devices fall under either
subsection (1) or (2), the Fourteenth Circuit’s finding was correct. 26 U.S.C. § 5845(f).
Thus, Petitioner possessed two objectively identifiable destructive devices defined by
the Act, and her conviction should be upheld.
II.
A PERSON CAN BE PROSECUTED UNDER 18 U.S.C. § 2339B, WITHOUT
THEIR FIRST AMENDMENT RIGHTS JEAPORDIZED, FOR PLANNING TO
MEET AND CONFER WITH THE LEADER OF A FTO IN ORDER TO PROVIDE
COMPUTER CODE USED FOR MAKING THE ESSENTIAL ELEMENT OF A
BOMB.
In 1996, the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) was
enacted, just one year after Timothy McVeigh and Terry Nichols bombed the
Oklahoma City federal building. AEDPA, Pub. L. No. 104-132, § 302-03, 110 Stat.
25
1214, 1248-50 (1996); Terror Hits Home: The Oklahoma City Bombing, THE FBI,
https://www.fbi.gov/about-us/history/famous-cases/oklahoma-city-bombing.
The
AEDPA criminalized providing “material support” to any Foreign Terrorist
Organization (“FTO”) and added 18 U.S.C. § 2339B to the criminal code. AEDPA,
Pub. L. No. 104-132, § 303, 110 Stat. 1214, 1250 (1996); 18 U.S.C. § 2339B. Six weeks
after the September 11, 2001 attacks on the World Trade Centers, another Act was
passed which added “expert advice or assistance” to the list of “material support”
prohibited by the statute.
Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act)
Act of 2001, Pub. L. 107-56, § 805, 115 Stat. 272, 377 (2001). Other terms describing
conduct that is prohibited, specifically “personnel,” “training,” and “expert advice or
assistance,” were clarified in 2004 with the enactment of the Intelligence Reform and
Terrorism Prevention Act (“IRTPA”). IRTPA, Pub. L. 108-458, § 6603, 118 Stat. 3638,
3762 (2004).
After several catastrophic, terrorist attacks and subsequent
amendments to the AEDPA, we are left with the current “material support statute,”
18 U.S.C. § 2339B.
A. Making Plans to Meet the Leader of a Foreign Terrorist Organization in Order
to Explain and Provide a Dangerous Computer Code Fits Squarely Within the
Parameters of 18 U.S.C. § 2339B.
To end future terrorist attacks, the material support statute proscribes anyone
from “knowingly provid[ing] material support or resources to a foreign terrorist
organization, or attempt[ing] or conspir[ing] to do so.” 18 U.S.C. § 2339B(a)(1).
“Material support or resources” is defined as:
26
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. § 2339A(b)(1). At issue before this Court, is whether a person can be
prosecuted under the material support statute for planning to show and demonstrate
a potentially dangerous computer code to a FTO. This conduct not only qualifies as
material support, but is the exact behavior Congress intended to prevent through the
enactment of the AEDPA.
1. A Computer Code that Provides the Capabilities to Create the
Essential Component of a Bomb is Considered a Weapon and
Therefore Prohibited from Production to a Foreign Terrorist
Organization.
The material support statute makes clear that individuals are prohibited from
providing, or attempting or conspiring to provide, “material support or resources to a
foreign terrorist organization.” 18 U.S.C. § 2339B(a)(1). That which qualifies as
material support or resources is expressly defined both in Section 2339B and its sister
statute, Section 2339A. See e.g., 18 U.S.C. § 2339A(b) (defining “training,” “expert
advice or assistance,” and “material support or resources”); 18 U.S.C. § 2339B(h)
(specifying the type of “personnel” the statute proscribes). “Material support or
resources” includes, among other things, “lodging, training, expert advice or
assistance . . . weapons, lethal substances” and “explosives.” 18 U.S.C. § 2339A(b)(1)
(emphasis added).
27
Initially a computer code may not appear to constitute a weapon, however,
when it provides the user with the means to create a bomb, it transforms into that
which the material support statute prohibits. Section 2339B, “is, on its face, a
preventive measure – it criminalizes not terrorist attacks themselves, but aid that
makes the attacks more likely to occur.” Holder v. Humanitarian Law Project, 561
U.S. 1, 35 (2010).
Providing a FTO with weapons and explosives leads to the
subsequent use of such items by the organization. Thus, a computer code that creates
these lethal means should be considered a weapon in and of itself. Looked at plainly,
weapon is defined in Black’s Law dictionary as “an instrument used or designed to be
used to injure or kill someone.” Black’s Law Dictionary 1827 (10th ed. 2014). Applying
this basic definition to the subject at issue, a dangerous computer code can without a
doubt “injure” an innocent individual, or “kill” a person against which it is used. In
fact, this Court has even found computer code to constitute material support. R. at
24 (referencing Holder v. Humanitarian Law Project, 561 U.S. 1, 47 (2010) (Breyer,
J., dissenting).
The computer code that Petitioner developed with the help of Ascot and Mr.
Triton qualifies as a weapon and, therefore, cannot be provided to Allen. Case law
and the material support statute makes clear that any form of weapons or explosives
provided to a designated FTO is against the law and appropriately proscribed under
the material support statute. 18 U.S.C. §§ 2339A, 2339B; Sokolow v. Palestine
Liberation Organization, 60 F. Supp. 3d 509 (S.D.N.Y. 2014); United States v. Assi,
414 F. Supp. 2d 707 (E.D. Mich. 2006) (night vision goggles, thermal imaging camera,
28
global positioning satellite modules); United States v. Al Kassar, 660 F.3d 108, 114
(2d Cir. N.Y. 2011) (anti-aircraft missiles); United States v. Lindh, 212 F. Supp. 2d
541 (E.D. Va. 2002) (grenades). Petitioner intended to provide Allen with a modified
curve code that can be used to create items with a 3D printer such as a perfect
cylinder. R. at 10, 12. While the cylinder at issue may have alternative, peaceful
uses on its own, this artifact is the most essential component for the creation of a
devastatingly dangerous home-made bomb.
At trial, an expert for the Foreign Bureau of Investigation (FBI) attested to the
fact that a perfect cylinder, combined with inexpensive and easily accessible items,
such as matches and hairspray, can be used to create a bomb. R. at 51. Certainly,
by looking at the proposed shopping list for the explosive, the most difficult item to
acquire is the very item that Petitioner attempted to provide – the code to create a
perfect cylinder. The same idea was effectuated in Sokolow v. Palestine Liberation
Organization, where the court denied the defendant’s motion for summary judgment
because a triable issue of fact for the jury was presented as to whether defendant
provided material support in the form of bomb-making supplies to an FTO. 60 F.
Supp. 3d 509, 521 (S.D.N.Y. 2014).
The Fourteenth Circuit correctly disregarded Petitioner’s argument that the
computer code she intended to provide to DM is harmless and something that the
FTO could easily acquire on their own. R. at 23. A terrorist organization can likely
get weapons and explosives from many sources, just because alternate doorways are
available does not mean that the one DM walked through should be free of guilt.
29
Christopher Harress, ISIS Weapons Growing In Number, Sophistication: A Soviet,
Balkan And American Mix, But The Group Can’t Use All Of Them, INT’L BUSINESS
TIMES (Aug. 15, 2014 8:32 AM), http://www.ibtimes.com/isis-weapons-growingnumber-sophistication-soviet-balkan-american-mix-group-cant-use-all-1659176.
Following the logic proposed by Petitioner, the material support statute would be
found completely useless.
No one could be prosecuted under Section 2339B for
providing bombs to an FTO, under this reasoning, because the defendant would
simply argue that the terrorists could obtain the same explosive somewhere else.
Further, if a person provides an FTO with a rare type of wire that, on its own accord
is harmless, but combined with other ingredients creates a nuclear weapon, he or she
can be free from prosecution. These persons provide an essential element to the
respective FTO, and their actions do not fall short of providing material support.
In addition, devastating consequences would transpire if DM had access to this
weapon. Allen is known for his recent release of millions of documents stolen illegally
from the NSA. R. at 5. He used the Darknet as the channel with which to disseminate
this material to people all over the world. Id. With just the click of a button,
hacktivist groups and individuals using this communication device had access to the
confidential information. Id. The dangers that could arise by DM posting the curve
code on Darknet are unthinkable.
This would essentially provide the main
component of a powerful bomb to anyone who knows how to connect; exactly the type
of problem the material support intends to prevent.
2. In the Alternative, Showing and Demonstrating a Potentially
Dangerous Computer Code is Prohibited by the Material Support
30
Statute Because it Qualifies as Training or Expert Advice or
Assistance.
Even if this Court finds that a potentially dangerous computer code does not
constitute a weapon, the act of demonstrating a unique and complex computer code
is still within Section 2339B’s parameters. Aside from the tangible forms of support
that one can provide to a FTO, there are also services that fall under the material
support statute’s umbrella. The Fourteenth Circuit echoed this fact when stating,
“‘Material’ is not limited to the realm of the tangible.” R. at 23. Specifically, the
statute also bans “training” such as “instruction or teaching designed to impart a
specific skill, as opposed to general knowledge” to a FTO. 18 U.S.C. § 2339A(b)(2).
Further, a person cannot provide expert “advice or assistance derived from scientific,
technical, or other specialized knowledge.” 18 U.S.C. § 2339A(b)(3).
Training can take many different forms. In United States v. Mustafa, the court
found that hosting websites with training manuals and instructions for making
explosive devices and other weapons properly constituted material support. 406 Fed.
Appx. 526, 528 (2d Cir. 2011). Specifically, the appellant provided training on how to
modify an AK-47 to mimic a grenade launcher, make a silencer, and slit throats. Id.
at 530. In United States v. Warsame, defendant was prosecuted for teaching English
at an Al Qaeda training camp.
537 F. Supp. 2d 1005, 1018 (D. Minn. 2008).
Transferring and demonstrating videos on how to make explosive devices are also
prohibited. United States v. Amawi, 695 F.3d 457, 466 (6th Cir. 2012).
Case law also demonstrates that a high degree of knowledge is not required
before one can offer expert advice or assistance. Rather, some level of specialization
31
above general knowledge is sufficient. This Court has supported this contention in
Holder v. Humanitarian Law Project, where it was held that “speech is not barred if
it imparts only general or unspecialized knowledge.” Humanitarian Law Project, 561
U.S. at 27. Further, Justice Breyer admitted that “computer training qualifies as
material support. Holder v. Humanitarian Law Project, 561 U.S. 1, 47 (2010) (Breyer,
J., dissenting). Demonstrating and explaining a computer code cannot be done by the
average person. Not only does it require some degree of heightened intelligence in
the subject, it also involves a form of teaching. See 18 U.S.C. § 2339A(b)(3) (requiring
specialized or technical knowledge). For these reasons, the act of demonstrating a
complex, potentially dangerous computer code fits within the prosecutorial gambit of
the material support statute.
Petitioner’s attempt to demonstrate and explain the complex, modified curve
code falls under “expert advice or assistance” and “training” that is prohibited by the
material support statute.
Her specialized knowledge in computer programming
began in early November 2012, when Ascot started to tutor her on the program C++.
Id. at 4. These private sessions went on for four months. Id. Her talent was so finely
tuned at this point, that by a quick glance of the computer code from Mr. Triton’s 3D
printer, she “discovered an error that caused the positioning of the extruder . . . to be
off.” R. at 7. Almost immediately, Petitioner was able to “beg[i]n working on a
solution.” Id. When her work reached an impasse, she resumed coding with the help
of Ascot. Id. at 6-7. Receiving guidance from a seasoned programmer, who is also
32
one of the first graduates of Technical Promise, is strong proof that petitioner
possesses specialized knowledge in computer code. R. at 3.
With this knowledge and experience, Petitioner attempted to demonstrate her
hard work to Allen. This demonstration is expert advice or assistance because it
imparts on him technical and specialized knowledge that she garnered through
personal hard work and study. 18 U.S.C. § 2339A(b)(3). Further, by showing Allen
the modified curve code and explaining its structure and purpose, she is training the
Dixie Million leader on a specific skill, computer coding. 18 U.S.C. § 2339A(b)(2).
For these reasons, this Court should find that Petitioner’s attempted actions
fit squarely within the material support statute.
B. The First Amendment’s Guarantee of Freedom of Speech and Right to
Association is Not Violated by 18 U.S.C. § 2339B Because the Government’s
Interest in Stopping the Attacks of Modern Terrorist Organizations is Great
and the Statute is Narrowly Tailored to Achieve That End.
The First Amendment challenge raised by Petitioner requires this Court to
analyze whether 18 U.S.C. § 2339B violated her freedom of speech and right to
association. Indeed, political speech and association are at the epicenter of the First
Amendment’s broad protections. Mills v. Alabama, 384 U.S. 214, 218 (1966); Turner
Broad. Sys., Inc. v. Fed. Commc’ns Comm’n, 512 U.S. 622, 641 (1994) (“At the heart
of the First Amendment lies the principle that each person should decide for himself
or herself the ideas and beliefs deserving of expression, consideration, and
adherence.”).
However, there is no First Amendment violation here because
Petitioner’s right to associate is not restricted by the statute and limiting the narrow
33
speech at issue is justified under a heightened scrutiny analysis. The Constitution
provides that:
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right
of the people peaceably to assemble, and to petition the
government for a redress of grievances.
U.S. CONST. amend. I (emphasis added).
Congress has consistently asserted their vow to protect speech and
associational rights with regard to the material support statute. Senator Hatch
explained that “[w]e have worked hard to make sure [§2339B] does not . . . place
inappropriate restrictions on cherished first amendment [sic] freedoms.” 142 Cong.
Rec. S3352-01 S7548, 7556 (daily ed. Apr. 16, 1996) (statement of Sen. Hatch). A
House Report further emphasizes that “[t]here is no proscription on one’s right to
think, speak, or opine in concert with, or on behalf of, such an organization.” H.R.
Rep. No. 104-383, at 43-45 (1995). Even the statute disclaims constitutional issues,
“[n]othing in this section shall be construed or applied as to abridge the exercise of
rights guaranteed under the First Amendment.” 18 U.S.C. § 2339B(i).
In analyzing Petitioner’s constitutional claim, the Fourteenth Circuit rejected
her facial challenge under the strict scrutiny standard because that was already
decided by this Court in Holder v. Humanitarian Law Project, 561 U.S. 1 (2010). R.
at 21. In a pre-enforcement proceeding, plaintiffs claimed they wanted “to provide
support for the humanitarian and political activities” of two FTOs and that Section
2339B unconstitutionally prohibited them from doing so. Humanitarian Law Project,
34
561 U.S. at 10. Specifically, plaintiffs hoped to provide legal training and political
advocacy, which they argued to be protected under their right to speech and freedom
of association. Id. The Court discussed, at length, the as-applied challenge to the
statute’s ban on “material support” and found that it did not violate plaintiffs’
freedom of speech or right to association. Id. at 39. Because a facial attack is in other
words asserting that “no application of the statute would be constitutional”, and this
Court found Section 2339B to be valid five years ago, the Fourteenth Circuit was
correct in rejecting Petitioner’s claim. Sabri v. United States, 541 U.S. 600, 609
(2004).
Further, the Lower Court correctly declined to re-perform an analysis under
the “clear and present danger” test established in Brandenburg v. Ohio. R. at 21; 395
U.S. 444, 449 (1969). The leader of a Klu Klux Klan group was televised, during a
rally, saying “it’s possible that there might have to be some revengeance taken
[against the government]” and that African Americans “should be returned to Africa,
the Jew returned to Israel.” Brandenburg, 395 U.S. at 446-47. This Court made a
distinction between abstract advocacy and incitement to imminent illegal, harmful
conduct. Specifically, speech advocating “the use of force or of law violation” cannot
be proscribed unless: (1) the “advocacy is directed to inciting or producing imminent
lawless action,” and (2) the advocacy “is likely to incite or produce such action.” Id.
at 447. Most instructive is the Holder majority opinion, which does not even mention
Brandenburg and instead applies a heightened standard with much deference to the
Executive Branch. See generally Humanitarian Law Project, 561 U.S. 1 (2010).
35
While Brandenburg is considered the “seminal advocacy case”, and was not overruled
by Holder, when dealing with national terrorism and coordinated action with FTOs,
a different analysis applies. McCoy v. Stewart, 282 F.3d 626, 631 (9th Cir. 2002).
Particularly with the facts before this Court, we are analyzing the statute’s
applicability when a person provides direct, material support to an FTO rather than
political speech to the general public.
This Court should affirm the Fourteenth Circuit’s finding that Section 2339B,
forbidding anyone from “knowingly provid[ing] material support or resources to a
[FTO], or attempt[ing] or conspire[ing] to do so”,
does not violate Petitioner’s
constitutional rights of speech and association, keeping in mind that “what the
AEDPA prohibits is the act of giving material support, there is no constitutional right
to facilitate terrorism by giving terrorists the weapons and explosives with which to
carry out their grisly missions.” Marjoire Heins, The Supreme Court and Political
Speech in the 21st Century: The Implications of Holder v. Humanitarian Law Project,
76 ALB. L. REV. 561, 9-10 (2013).
1. Petitioner’s Speech that is Criminalized under 18 U.S.C. § 2339B
Passes Constitutional Muster under a Strict Scrutiny Analysis.
The material support statute prohibits content-based speech, and therefore its
constitutionality must be reviewed under strict scrutiny. As applied to Petitioner,
the conduct covered under Section 2339B is her communication with Allen.
Specifically, she was convicted for attempting to meet with Allen to demonstrate and
provide him with a computer code that prints a perfect curve. R. at 11-12. This is
similar to the conduct covered in Holder v. Humanitarian Law Project, where the
36
Court noted “Plaintiffs want to speak to the [FTOs], and whether they may do so
under § 2339B depends on what they say.” Humanitarian Law Project, 561 U.S. at
27.
Because this is a content-based regulation, the Court rejected applying
intermediate scrutiny and instead applied a heightened standard. Id. at 4.
To survive strict scrutiny, the statute must be “narrowly tailored to promote a
compelling Government interest.” United States v. Playboy Entm’t Grp., Inc., 529
U.S. 803, 813 (2000).
Applying strict scrutiny, this Court should affirm the
Fourteenth Circuit’s finding that Section 2339B did not improperly violate
Petitioner’s First Amendment rights.
i. The Government Has a Compelling Interest in Thwarting
Terrorist Activities of Rogue Hackers Who Are a Part of
Designated Foreign Terrorist Organizations.
Protecting the United States from the threat of foreign terrorist organizations
is of the upmost importance for the Government. Indeed, “the government’s interest
in national security cannot be understated . . . it is beyond dispute that the
Government’s interest in combating terrorism is an urgent objective of the highest
order.” Al Haramain Islamic Foundation v. U.S. Dep’t of Treasury, 686 F.3d 965, 980
(9th Cir. 2012) (internal citations omitted). The September 11, 2001 attack on the
World Trade Center evince the present dangers of international terrorism.
As
methods of communication evolve, so do the methods that terrorists use to organize
and effectuate an attack. For example, people are now able to connect with each
other, on a global scale, with just a click of a button and an internet connection.
Spreading one’s message, whether it be violent or peaceful, could not be simpler.
37
Courts have commented that “the legislature is understandably concerned about the
pervasive scope of the Internet and other electronic media.” Enoch v. State, 95 So.
3d 344, 357 (Fla. Dist. Ct. App. 1st Dist. 2012). The situation before this Court
presents yet another example of a channel that allows persons to communicate and
coordinate on a global scale without restriction, the Darknet. R. at 5. Even worse,
this powerful communication tool has introduced new, internet-based terrorist
organizations who use this connection to infiltrate and damage that which was once
private and protected. The U.S. Department of Defense has made public statements
regarding this new method of warfare and the need to stop the dangerous actions of
hackers and cybercrimes. Lisa Ferdinando, DoD Needs to Improve Cyber Culture,
CIO
says,
U.S.
DoD,
available
at
http://www.defense.gov/News-Article-
View/Article/626607/dod-needs-to-improve-cyber-culture-cio-says
(“Cyber
is
a
relatively new warfare.”).
The United States has responded by committing to prevent terrorism with the
strategy of destroying terrorist plots and placing those involved accountable. Success
depends on the Department of Justice’s ability to use effective and preventative
measures made available in the Federal Criminal Code. The goal is not response, but
rather prevention. Section 2339B empowers the Department of Justice by enabling
it to intervene early in the criminal act continuum and thus stopping material
resources from reaching an FTO that places our security at risk. 18 U.S.C. § 2339B;
see also Counterterrorism White Paper, Counterterrorism Section, DEP’T OF JUSTICE,
at
14
(June
22,
2006),
38
available
at
http://trac.syr.edu/tracreports/terrorism/169/include/terrorism.whitepaper.pdf
(describing the material support statute as “one of the cornerstones of [the Dep’t of
Justice’s] prosecution efforts).
The strong presence of international terrorism and the usefulness of Section
2339B supports a finding that the government has a compelling interest in forbidding
material support to FTOs.
ii. 18 U.S.C. § 2339B is Narrowly Tailored to Achieve This End
Because the Conduct Proscribed is Directed to and Coordinated
with a Foreign Terrorist Organization and the Statute Only
Prohibits Specific, Material Support.
The second part to a strict scrutiny analysis requires a finding that the statute
is “narrowly tailored to promote [the] compelling Government interest.”
United
States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000). The restriction on
speech will be found unconstitutional if “less restrictive alternatives would be at least
as effective in achieving the legitimate purpose that the statute was enacted to serve.”
Reno v. Aclu, 521 U.S. 844, 874 (1997). Section 2339B is narrowly tailored to achieve
the Government’s compelling interest in stopping the flow of material support to
cyber FTOs such as DM. First, it should be noted that not all conduct with an FTO
is prohibited. A person “may say anything they wish on any topic. They may speak
and write freely about [FTOs] . . . human rights and international law.”
Humanitarian Law Project, 561 U.S. at 25-26. Even membership is still allowed. Id.
at 18 (“Section 2339B does not criminalize mere membership in a designated foreign
terrorist organization.”). Instead, the material support statute specifically carved out
a narrow type of conduct that must be prohibited in order to stop the extremely
39
dangerous and unpredictable behavior of terrorists. To cut the lifeline of terrorist
organizations and put an end to terrorist attacks, the material support statute only
prohibits a person from providing material support.
Prohibiting Petitioner’s attempt is appropriate because it is conduct
coordinated with and directed to an FTO that would otherwise advance DM’s
terroristic activities, exactly what the Government wants to stop. In Humanitarian
Law Project, this Court found the statute to be narrowly tailored because it only
covered a very limited category of speech. Humanitarian Law Project, 561 U.S. at 31.
Specifically, the statute only applies to “material support coordinated with or under
the direction of a designated foreign terrorist organization.” Id. (emphasis added). A
person’s “independent advocacy that might be viewed as promoting the group's
legitimacy” is not within the statute’s grasp. Id. at 31-32.
The same reasoning can be applied to Petitioner’s conviction. If this Court
finds that the computer code was in fact a weapon, Petitioner attempted to give it
directly to DM. Thus, her actions are proscribed under the plain language of the
statute, wherein it forbids anyone from “provid[ing] material support . . . to a foreign
terrorist organization.” 18 U.S.C. § 2339B(a)(1) (emphasis added). On the other
hand, if this Court finds Petitioner’s attempt to consist of training or expert advice or
assistance, the conduct would have been in direct coordination with Allen, DM’s
leader.
Like the Plaintiffs in Humanitarian Law Project, Petitioner would be
conversing directly with the FTO about the complex code she devised. In other words,
40
if she accomplished her attempt and spoke with Allen, nothing about that speech
would be performed independently.
The content of this prohibited speech cannot go without mention. The statute,
as applied, is prohibiting Petitioner’s ability to discuss with Allen the coding to a
modified curve. R. at 10. This curve can be used to create the perfect cylinder which
is the essential component of a homemade bomb. R. at 18. Petitioner cannot possibly
raise the argument that the Government lacks a sufficient interest in keeping such a
device out of the hands of a FTO. This speech can have a direct link to future terrorist
attacks. Further, narrowing the statute’s scope would put dangerous speech like this
out of its grasp. The end result would be to stop the Government’s ability to prevent
terrorists from obtaining such dangerous materials and thereafter using it for attacks
on Americans.
The other justifications that this Court used in Humanitarian Law Project to
uphold Section 2339B’s constitutionality also advances the Fourteenth Circuit’s
holding here. Most notably, “foreign terrorist organizations that engage in terrorist
activity are so tainted by their criminal conduct that any contribution to such an
organization facilitates that conduct.” AEDPA, Pub. L. No. 104-132, § 301(a)(7), 110
Stat. 1247 (1996); Humanitarian Law Project, 561 U.S. at 5. Prohibiting, even
peaceful, material support that is directed to, coordinated with, or under the direction
of an FTO is narrowly tailored to achieve the Government’s interest in stopping
terrorist attacks for two reasons: (1) FTO’s “do not maintain organizational firewalls
between social, political, and terrorist operations” and so support to any of those
41
branches would eventually be used to carry out a terrorist attack; and (2) material
support, in any form, would “undermine cooperative international efforts to prevent
terrorism and strain the United States' relationships with its allies.” Humanitarian
Law Project, 561 U.S. at 5.
The statute cannot be reworded to draw a distinction between peaceful and
illegal support because any form of material support would free up other resources
that could be used for violent, illegal ends. Id. at 30. Persuasive in this reasoning
was the fact that the FTOs in Humanitarian Law Project, in the past, have not
“respected the line between humanitarian and violent activities.” 561 U.S. at 31. The
same is true of DM. From the Record we know of two major instances where DM
crossed the line from humanitarian to violent and dangerous. On November 22, 2011,
Allen “released millions of documents he illegally stole from the NSA to the Darknet.”
R. at 5. For four months following that incident, DM hacked various websites and
subsequently exposed scandalous documents. Id. at 5-6. The second major act was
when DM hacked the WOM database and revealed the illegal acts of the game’s
developers. Id. at 8. The lower court also accurately applied Humanitarian Law
Project when it noted that by providing DM with the computer code, they now don’t
have to waste time and money getting it on their own. R. 23-24. Those resources can
now be used for terroristic activity. Id. There is no distinction for DM between
humanitarian and violent conduct, even peaceful speech must be prohibited if its
content provides material support. In other words, there is no possible way to apply
this statute in a less restrictive way.
42
The second line of reasoning used in Humanitarian Law Project also applies;
our relationship with at least one ally, Azran, has already been jeopardized due to
DM’s existence. When Azran granted Allen asylum, the Government immediately
began negotiations for his arrest and extradition to the United States. R. at 6. Those
talks immediately stopped, however, when Allen gave the Azranian government
“several documents showing the NSA had recorded private communications between
the Azranian Ambassador to the UN and the Azranian Prime Minister.” Id. Any
form of material support will breathe life into this FTO that has already damaged
our relationship to one ally overseas and will likely cause additional tension between
other countries.
The statute, as is, perfectly forbids that which the Government has a
substantial interest in stopping. Therefore, this Court should affirm the Fourteenth
Circuit’s holding that Petitioner’s constitutional right to speech was not violated.
2. An Individual’s Freedom to Associate is not Violated by 18 U.S.C. §
2339B Because the Statute Only Restricts One’s Ability to Provide
Material Support and Does Not Prohibit One’s Membership in an
FTO.
An individual’s right to association is not restricted by 18 U.S.C. § 2339B and
the lower court was correct in rejecting Petitioner’s claim. The right to association is
a separate and distinct component of the First Amendment. Roberts v. U.S. Jaycees,
468 U.S. 609, 622 (1984). The Constitution grants express protection for “the right of
the people peaceably to assemble.” U.S. CONST. amend. I. Therefore, a law cannot
impose liability on a person simply because of her association with another. NAACP
v. Claiborne Hardware Co., 458 U.S. 886, 918 (1982); see Scales v. Unites States, 367
43
U.S. 203, 229 (1961) (finding that a “blanket prohibition” on one’s ability to join a
group who has both legal and illegal aims violates the Constitution). Further, a law
that prohibits one’s ability to associate altogether will be ruled unconstitutional, lest
it pass strict scrutiny. In the context of 18 U.S.C. § 2339B, courts have consistently
found that an individual’s freedom of association is left unrestricted.
Of most importance, is the idea that the material support statute does not
criminalize association per se; instead, what is prohibited is “the act of giving
material support to designated foreign terrorist organizations.” United States v.
Marzook, 383 F. Supp. 2d 1056, 1057 (N.D. Ill. 2005) (emphasis added). In other
words, the material support statute does not prohibit one’s freedom to associate with
a FTO. United States v. Chandia, 514 F.3d 365 (4th Cir. 2008). A look at the plain
language of the statute further supports this contention.
Unlawful conduct is
attached to “whoever knowingly provides material support or resources to a foreign
terrorist organization, or attempts or conspires to do so.” 18 U.S.C. § 2339B(a)(1)
(emphasis added). Nothing in this language indicates that mere membership is
forbidden or that “guilt by association” will occur. Instead, as the statute’s own title
proclaims, Congress is banning “Providing material support or resources to
designated foreign terrorist organizations.” 18 U.S.C. § 2339B.
The reasoning in Warsame and Assi demonstrate this principle as it relates to
the material support statute. United States v. Assi, 414 F. Supp. 2d 707 (E.D. Mich.
2006); United States v. Warsame, 537 F. Supp. 2d 1005 (D. Minn. 2008). In the
former, the indictment alleged a violation of 18 U.S.C. § 2339B because the defendant
44
participated in an Al Qaeda training camp and provided money to a key associate.
Warsame, 537 F. Supp. 2d at 1009. Upon rejecting the claim that the material
support statute restricted defendant’s freedom to associate, the court found that
Section “2339B does not prohibit membership in Al Qaeda, nor does it prohibit
persons from espousing or sympathizing with the views of Al Qaeda, however
unpopular those views might be.” Id. at 1014. In Assi, defendant challenged the
constitutionality of 18 U.S.C. § 2339B on the grounds that he was being criminally
charged for simply joining Hizballah without requiring the prosecution to
demonstrate his specific intent to further their illegal goals. Assi, 414 F. Supp. 2d at
711. The court rejected this argument, finding that his conviction was not based on
mere association with this group, which is allowed, but rather because of his attempt
to provide a laundry list of items that were very likely to be used for violent purposes.
Id. at 715-716 (including night vision goggles, global positioning satellite modules,
and a thermal imaging camera).
The Fourteenth Circuit was correct in rejecting Petitioner’s claim that 18
U.S.C. § 2339B violated her freedom of association. R. at 24. Petitioner’s conviction
had nothing to do with her alleged aspiration to be a “White Hat Hacker” who
“become[s] a force for good in the universe.” R. at 11. What changed Petitioner’s fate
is the facts that we know to be true. She, with the help of others, developed a modified
curve, computer code. R. at 8-9. A person can install this code into their 3D printer
and print a perfect cylinder. Id. at 9, 12 (Petitioner event brought one to show Allen
during their meeting). With one stop at a local convenience store, that individual has
45
the proper means to create a bomb. Id. at 18. To make matters worse, she attempted
to give this information to the only known leader of a designated FTO. Id. at 5. Just
like in Assi, Petitioner was prosecuted because she attempted to provide material
support to a dangerous organization, likely leading to violence. The indictment, and
subsequent conviction, did not relate to her potential membership with DM.
If Petitioner had, instead of attempting to demonstrate and show this
dangerous computer code, simply made plans to meet with Allen and seek advice, the
material support statute would not have been implicated. Again, the statute does not
inflict “guilt by association,” prosecuting persons for mere membership in a
designated FTO. See Claiborne Hardware Co., 458 U.S. at 920. Instead, 18 U.S.C. §
2339B forbids anyone from “provid[ing] material support.” 18 U.S.C. § 2339B(a)(1)
(emphasis added). For these reasons, this Court should find that Petitioner’s freedom
to associate was not restricted by the material support statute.
C. There is Sufficient Evidence to Demonstrate That Petitioner Intended to Give
Support to Dixie Millions Because She Took Substantial Steps to Track the
Coordinates of Clive Allen, Made Public Statements Supporting His Actions,
and Planned to Show Him a Dangerous Computer Code.
Petitioner’s final claim is that there was insufficient evidence to convict her
under 18 U.S.C § 2339B. R. at 21. The defendant asserting a sufficiency challenge
carries a heavy burden. United States v. Farhane, 634 F.3d 127, 144 (2d Cir. 2011).
The court “must consider the totality of the evidence in the light most favorable to
the prosecution.” Id. The conviction will be upheld if “any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Jackson
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v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).
Applying these
principles, Petitioner’s sufficiency challenge should be denied.
The material support statute convicts not only persons who succeed in
providing material support to an FTO, but also those who “attempt[] or conspire[] to
do so.” 18 U.S.C. § 2339B(a)(1). In addition, to violate the material support statute,
one must know that the organization is an FTO, or that they conduct terrorist
activity, or participate in terrorism.
Id.
Because Petitioner made affirmative
statements supporting DM, and took aggressive, substantial steps towards meeting
Allen to demonstrate and show the computer code, there was sufficient evidence to
prosecute her under attempt. Further, there was sufficient evidence to find that she
possessed the requisite knowledge needed for a violation of the statute because she
actively searched DM and Allen on Darknet and discussed the FTO with Ascot at
length.
1. Petitioner’s Actions Constitute Attempt to Violate the Material
Support Statute Because She Intended to Provide Material Support
to DM and Took Substantial Steps Towards Accomplishing That Goal.
There was sufficient evidence to prosecute Petitioner under attempt to provide
material support to DM. A proper conviction under attempt calls for proof that the
accused “(a) had the intent to commit the object crime and (b) engaged in conduct
amounting to a substantial step towards its commission.” United States v Farhane,
634 F.3d 127, 130 (2d Cir. 2011). The Record demonstrates Petitioner satisfies both
of the prongs necessary for an attempt to provide material support; she not only
openly supported DM and their conduct, but took substantial steps towards providing
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the organization’s leader with the wherewithal to create and disseminate a critical
component of a bomb.
The “intent to commit the object crime” should not be confused with an intent
to further terrorism, rather the focus is on one’s intent to provide material support to
an FTO. Farhane, 634 F.3d. at 130. In Farhane, the court found sufficient proof of
defendant’s intent to provide material support to Al-Qaeda when he swore allegiance
to the organization, made direct statements about his support for their beliefs and
conduct, and promised to provide medical services for the FTO. Farhane, 634 F.3d at
147-79; See also United States v. Mehanna, 735 F.3d 32, 44 (1st Cir. 2013) (defendant
expressed his interest in participating in jihad training camp to assist in battle
against U.S. in Iraq). In Augustin, the court looked to the “totality of the evidence”
and held that it was reasonable for a jury to conclude - due to his participation in an
oath ceremony, taking photographs and videos of federal buildings subject to a
planned attack, and conversations proclaiming support for Al Qaeda - that defendant
intended to serve Al Qaeda. United States v. Augustin, 661 F.3d 1105, 1119 (11th Cir.
2011). Similarly, Petitioner, on several occasions, professed her support for DM and
their dangerous behavior. The Record describes her belief that “Mr. Allen [is] an
excellent role model of the ultimate ‘White Hat Hacker.’” R. at 11. Her fondness
transforms into a desire to imitate Allen. Id. While she claims her true intent was
to meet Allen, impress him, and receive his advice, Petitioner’s actions demonstrate
an intent to do much more. Id. at 12. For example, FBI agents at trial describe her
activities on Darknet to indicate that she not only wanted to meet DM’s Allen, but
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other hacker groups as well. Id. at 17. Further, her Twitter account history reflects
several articles she posted supporting DM. Id. at 18. These facts, taken together,
demonstrate an intent to provide support to DM.
There is also sufficient evidence to prove Petitioner took a substantial step in
her attempt to provide material support to DM. To take a “substantial step” requires
“more than mere preparation, yet may be less than the last act necessary before the
actual commission of the substantive crime.” Farhane, 634 F.3d at 130. When
analyzing the second element, the step also “need not be planned to culminate in
actual terrorist harm, but only in support – even benign support – for an organization
committed to such harm.” Id. at 148 (referencing Holder v. Humanitarian Law
Project, 561 U.S. 1, 5 (2010)). The court in Mehanna found that a substantial step
was taken in defendant’s attempt to provide material support to an FTO when a
coconspirator testified of his intent to be trained at a terrorist training camp and he
actually traveled to Yemen to find the secret establishment. Mehanna, 735 F.3d at
45-46. The same was found in Kaziu. United States v. Kaziu, 559 Fed. Appx. 32, 37
(2d Cir. 2014) (“The evidence of Kaziu’s travels overseas with the intended object of
joining Al-Shabaab in its war against the Somali government was sufficient to. . . find
the substantial step necessary for attempt.”).
Petitioner took substantial and
extreme measures to meet Allen and provide him with material support. First, she
scoured the internet and Darknet to track where in Azran he was spotted. R. at 1112.
Then, she accumulated an exhaustive description of his attire at each
appearance. Id. at 12 (including “everything from clothing to wigs.”) From this
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information, she “deduced a pattern to Mr. Allen’s activities” to predict where he
would be on June 5, 2012 so she can meet him in person. Id. In her luggage, she
packed the dangerous computer code, a sample of what the code can produce, and
even a portrait of Allen that she created from one of her games. Id. Finally, she made
it as far as halfway to the airport before she was stopped by the police. R. at 14-15.
These activities constitute a substantial step towards providing material support
towards DM. Absent the flight and her trip to the café, where she predicted him to
be on June 5, there was nothing else she needed to do to commit the offense.
Because the Record reflects Petitioner’s intent to provide material support to
DM and proactive, substantial steps to accomplish that end, the lower court was
correct in rejecting her claim of insufficient evidence for a conviction under 18 U.S.C.
§ 2339B.
2. Petitioner Satisfied 18 U.S.C. § 2339B’s Knowledge Requirement
Because She Knew DM Was a Designated Foreign Terrorist
Organization.
As part of proving Petitioner’s guilt for attempting to provide material support
to DM, the Government adequately fulfilled the knowledge requirement under 18
U.S.C. § 2339B. Specifically, the material support statute requires that the person
“must have knowledge that the organization is a designated terrorist organization . .
. has engaged or engages in terrorist activity . . ., or that the organization has engaged
or engages in terrorism.” 18 U.S.C. § 2339B(a)(1); Holder v. Humanitarian Law
Project, 561 U.S. 1, 16-17 (2010) (“Congress plainly spoke to the necessary mental
state for a violation of § 2339B, and it chose knowledge about the organization's
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connection to terrorism, not specific intent to further the organization's terrorist
activities.”). The Record is replete with facts demonstrating Petitioner’s awareness
of DM’s designation as an FTO and Clive Allen’s integral participation with the
organization.
On April 26, 2012, while Petitioner and Ascot were working on the code for the
perfect curve, they had an explicit conversation about DM and Clive Allen. R. at 7-8.
The couple discussed DM’s most recent hack into the WOM database, revealing the
illegal behavior of the game developers. Id. at 8. Ascot expressed her admiration of
Allen and how she considered the FTO to be “White Hat Hackers.” Id. Later, she
developed an active presence on Darnket and began researching Allen on her own.
Id. at 11. Finally, Petitioner, knowing that Allen has taken refuge in Azran, “deduced
a pattern to Mr. Allen’s activities” in an effort to meet the “Millions.” R. at 11-12. At
trial, she even confessed that “it would be ‘pretty cool’ if Ascot was Dixie because that
meant that [I] would have been mentored by one of the world’s ‘elite White Hat
Hackers.’” Id. at 17.
Because the record clearly demonstrates that Petitioner knew DM was a
designated FTO and that they had engaged in at least one terrorist activity, the
evidence was sufficient to satisfy the knowledge requirement under the material
support statute.
CONCLUSION
For the foregoing reasons, Respondent respectfully requests that this Court
affirm the United States Court of Appeals for the Fourteenth Circuit decision, and
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hold that (1) the Rushcamp hybrid standard of intent is appropriate for charges
brought under 26 U.S.C. § 5845(f)(3), thus finding that the Petitioner was correctly
charged and convicted under this statute, and (2) that a person can be, and the
Petitioner was, appropriately convicted under 18 U.S.C. § 2339B for attempting to
meet a FTO leader to provide and demonstrate a potentially dangerous computer
code.
Respectfully Submitted,
Team 17
Attorneys for Respondent
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