NO. C15-1359-1
______________
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 2015
____________
EMMALINE BORNE,
Petitioner,
― against ―
UNITED STATES OF AMERICA,
Respondent.
_____________
On Writ of Certiorari to the
United States Court of Appeals
for the Fourteenth Circuit
_____________
BRIEF FOR RESPONDENT
_____________
TEAM 18
Attorneys for Respondent
QUESTIONS PRESENTED
I.
II.
Whether Ms. Borne was properly convicted under 26 U.S.C. § 5845(f)(3) for
possession of an unregistered “destructive device” when she designed and
fabricated firearm parts on a 3D printer, was found with a combination of
matches, a plastic cylinder, and hairspray, had expressed an intent to use the
firearm parts to gain the approval of a foreign terrorist organization, and an
FBI expert testified at trial that the parts could easily be combined into a
bomb?
Whether Ms. Borne was properly convicted under 18 U.S.C. § 2339B for
providing material support and resources to a foreign terrorist organization
when she planned and prepared to show and demonstrate a 3D gun design
and plastic filament formula to a member of a known foreign terrorist
organization?
i
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........................................................................................... i
TABLE OF AUTHORITIES ......................................................................................... iv
OPINIONS BELOW ...................................................................................................... 1
STATEMENT OF JURISDICTION .............................................................................. 1
STATUTORY PROVISIONS INVOLVED .................................................................... 1
STATEMENT OF THE CASE ....................................................................................... 2
SUMMARY OF THE ARGUMENT ........................................................................... 10
ARGUMENT ............................................................................................................... 13
I.
THE COURT OF APPEALS PROPERLY UPHELD MS. BORNE’S CONVICTION UNDER
26
U.S.C.
§
5845(F)(3)
FOR
POSSESSION
OF
A
“DESTRUCTIVE DEVICE” ...................................................................................... 13
A. The Court of Appeals Properly Applied a Mixed Conviction Standard
When Interpreting § 5845(f)(3) Because that Approach is Most Faithful to
the Text and Legislative History of the Statute, and Comports with this
Court’s Traditional Method of Interpreting Federal Criminal Statutes...15
B. Under Both Prongs of the Mixed Standard, and Consequently, Under any
of the Approaches Adopted by the Circuits, Borne was Properly Charged
under Subsection 5845(f)(3) for Fabricating and Designing a 3D Gun Plan
and a Filament Design, and for Possessing a Combination of a Plastic
Cylinder, Hairspray, and Matches .............................................................. 20
1. Borne was properly charged under subsection 5845(f)(3) for designing
and fabricating 3D gun plans and a filament design, and for possessing
a combination of matches, hairspray, and a plastic cylinder because,
objectively, both combinations of parts constitute a “destructive
devices” under that subsection .............................................................. 21
ii
2. Alternatively, Borne was properly charged under subsection 5845(f)(3)
for fabricating and designing 3D gun plans and a filament design, and
for possessing a combination of matches, hairspray, and a plastic
cylinder because those parts were intended for use in converting the
parts into a destructive weapon............................................................. 30
II.
THE COURT OF APPEALS PROPERLY UPHELD MS. BORNE’S CONVICTION UNDER
18 U.S.C. § 2339B FOR ATTEMPTING TO PROVIDE “MATERIAL SUPPORT AND
RESOURCES” TO MEMBERS OF A FOREIGN TERRORIST ORGANIZATION ................ 33
A. The Fourteenth Circuit Correctly Held that § 2339B is not
Unconstitutional Based on Facial Overbreadth ......................................... 34
B. The Fourteenth Circuit Correctly Held that § 2339B, as Applied to Borne’s
Activities, does not Violate her Freedom of Speech Guaranteed by the
First Amendment ......................................................................................... 36
C. The Fourteenth Circuit Correctly Held that § 2339B Does not
Unconstitutionally Infringe on Borne’s First Amendment Freedom of
Association Rights ....................................................................................... 42
D. The Fourteenth Circuit Correctly Held that § 2339B is not
Unconstitutionally Vague on its Face or as Applied to the Facts at
Issue…. ......................................................................................................... 42
E. The Fourteenth Circuit Correctly Held that Sufficient Evidence Existed to
Convict Borne under § 2339B for Attempting to Provide “Material
Support” to a Foreign Terrorist Organization ............................................ 49
CONCLUSION............................................................................................................. 54
APPENDICES:
APPENDIX “A”: 26 U.S.C. § 5845(f) (2012) ....................................................... A
APPENDIX “B”: 18 U.S.C. § 2339B (2012) ........................................................ B
iii
TABLE OF AUTHORITIES
Page(s)
UNITED SUPREME COURT CASES
Barber v. Thomas, 560 U.S. 474 (2010) ...................................................................... 30
Boumediene v. Bush, 553 U.S. 723 (2008) .................................................................. 36
Brandenburg v. Ohio, 395 U.S. 444 (1969) ................................................................. 36
Broadrick v. Oklahoma, 413 U.S. 601 (1973) ............................................................. 43
Chapman v. United States, 500 U.S. 435 (1991) ........................................................ 43
Connecticut Nat. Bank v. Germain, 503 U.S. 249 (1992) .......................................... 16
Humanitarian Law Project v. Holder, 561 U.S. 1 (2010) ....................................passim
In re Winship, 397 U.S. 358 (1970) ............................................................................. 49
Jackson v. Virginia, 443 U.S. 307 (1979) .................................................................... 49
Jordan v. DeGeorge, 341 U.S. 223 (1951) ............................................................. 44, 45
Liparota v. United States, 471 U.S. 419 (1985) .................................................... 15, 19
Staples v. United States, 511 U.S. 600 (1994) .....................................................passim
United States v. Balint, 258 U.S. 250 (1922)........................................................ 15, 17
United States v. Farhane, 634 F.3d 127 (2011) .................................................. passim
United States v. Freed, 401 U.S. 601 (1971) .......................................................passim
United States v. Raynor, 302 U.S. 540 (1938) ............................................................ 30
United States v. Thompson/Center Arms Company, 504 U.S. 505 (1992) .......... 12, 28
United States v. Williams, 553 U.S. 285 (2008) ................................................... 35, 43
Village of Hoffman Estates v. Flipside Hoffman Estates, Inc. , 455 U.S. 489 (1982) ....
...................................................................................................................................... 43
iv
Virginia v. Hicks, 539 U.S. 113 (2003) ....................................................................... 35
Ward v. Rock Against Racism, 491 U.S. 781 (1989) .................................................. 44
UNITED STATES COURT OF APPEALS CASES
Farrell v. Burke, 449 F.3d 470 (2d Cir. 2006) ............................................................ 44
Humanitarian Law Project v. U.S. Treasury Dep’t, 578 F.3d 1133 (9th Cir. 2009)..12
United States v. Berres, 777 F.3d 1083 (10th Cir. 2015) ........................................... 23
United States v. Bubar, 567 F.2d 192 (2d Cir. 1977) ................................................. 24
United States v. Curtis, 520 F.2d 1300 (1st Cir. 1975) .............................................. 15
United States v. Dalpiaz, 527 F.2d 548 (6th Cir. 1975) ............................................. 29
United States v. Fredman, 833 F.2d 837 (9th Cir. 1987) ........................................... 29
United States v. Geibel, 369 F.3d 682 (2d Cir. 2004) ................................................. 49
United States v. Greer, 588 F.2d 1151 (6th Cir. 1978) .................................. 22, 25, 29
United States v. Hines, 717 F.2d 1481 (4th Cir.1983) ............................................... 20
United States v. Johnson, 152 F.3d 618 (7th Cir. 1998) .....................................passim
United States v. Keller, 916 F.2d 628 (11th Cir. 1990) ........................................ 20, 33
United States v. Lussier, 128 F.3d 1312 (9th Cir. 1997)...................................... 17, 21
United States v. Markley, 567 F.2d 523 (1st Cir. 1997)......................................passim
United States v. Mehanna, 735 F.3d 32 (1st Cir. 2013) ......................................passim
United States v. Miller, 116 F.3d 641 (2d Cir. 1997) ................................................. 49
United States v. Morningstar, 456 F.2d 278 (4th Cir. 1972) ..................................... 16
United States v. Oba, 448 F.2d 892 (9th Cir. 1971) ............................................passim
v
United States v. Peterson, 475 F.2d 806 (9th Cir. 1973) ..................................... 22, 29
United States v. Pettus, 303 F.3d 480 (2d Cir. 2002)................................................. 34
United States v. Posnjak, 457 F.2d 1110 (2d Cir. 1972) ............................................ 21
United States v. Ragusa, 664 F.2d 696 (8th Cir. 1981)........................................ 24, 27
United States v. Spoerke, 568 F.3d 1236 (11th Cir. 2009)............................. 16, 22, 25
United States v. Tankersley, 492, F.2d 962 (7th Cir. 1974) ...............................passim
United States v. Urban, 140 F.3d 229 (3d Cir. 1998) ................................................. 21
United States v. Uzenski, 434 F.3d 690 (2006) .............................................. 16, 23, 26
United States v. Welch, 327 F.3d 1081 (10th Cir. 2003) ............................................ 15
United States v. Yousef, 327 F.3d 56 (2d Cir. 2003) .................................................. 50
UNITED STATES DISTRICT COURT CASES
United States v. Davis, 313 F. Supp. 710 (1970) ........................................................ 23
United States v. Schofer, 310 F. Supp. 1292 (1969) ................................................... 29
STATUTORY PROVISIONS
8 U.S.C. § 1189 (2012) ................................................................................................. 34
18 U.S.C. § 2339 (2012) ........................................................................................passim
26 U.S.C. § 5845 (2012) ........................................................................................passim
28 U.S.C. § 1254 (2012) ................................................................................................. 1
vi
LEGISLATIVE HISTORY
S. Rep. No.1501, 90th Cong., 2d Sess. 47 (1968) ........................................................ 29
LEGAL PERIODICALS:
Laurie R. Blank, International Law and Cyber Threats from Non-State Actors, 89
INT’L L. STUD. 406 (2013)…………………………………………………………………….41
INTERNET SOURCES:
Cathy Burke, Ex-Cia Officer: “There are ISIS Sleeper Cells in this Country,”
NEWSMAX (Aug. 21, 2014, 8:23 PM), http://www.newsmax.com/Newsfront/ciaofficer-isis-sleeper/2014/08/21/id/590228/ ................................................................... 41
Kriyana Reddy, ‘Hack Culture’ Can be Criminal, But Also Enlightening , THE
LEDGER.COM (Oct. 25, 2015, 12:01 AM),
http://www.theledger.com/article/20151025/COLUMNISTS0427/151029766/0/search
........................................................................................................................................47
Marian Smith Holmes, Spies Who Spilled Atomic Bomb Secrets, THE SMITHSONIAN
(Apr. 19, 2009), http://www.smithsonianmag.com/history/spies-who-spilled-atomicbomb-secrets-127922660/?no-ist.................................................................................. 32
Michael Martinez, Friend of Boston Marathon Bomber Tsarnaev Sentenced to 6
Years, CNN (June 2, 2015, 6:45 PM), http://www.cnn.com/2015/06/02/us/bostonmarathon-bombing-dzhokhar-tsarnaev/ ..................................................................... 28
vii
Tracy Connor, Shoe-Bomber Has ‘Tactical Regrets’ Over Failed American Airlines
Plot, NBC NEWS (Feb. 3, 2015, 9:55 AM), http://www.nbcnews.com/news/usnews/shoe-bomber-has-tactical-regrets-over-failed-american-airlines-plotn296396..........................................................................................................................28
viii
TO THE HONORABLE SUPREME COURT OF THE UNITED STATES:
Respondent, the United States of America―the plaintiff in the United
States District Court for the Western District of New Tejas and the Appellant before
the United States Court of Appeals for the Fourteenth Circuit―respectfully submits
this brief-on-the-merits in support of its request that this Court affirm the judgment
of the court of appeals.
OPINIONS BELOW
The opinion of the United States District Court for the Western District of
New Tejas is unreported. The unreported opinion of the United States Court of
Appeals for the Fourteenth Circuit appears in the record at pages 2–27.
STATEMENT OF JURISDICTION
The judgment of the Fourteenth Circuit Court of Appeals was entered on
October 1, 2015. The petition for a writ of certiorari was granted. The jurisdiction of
this Court is invoked under 28 U.S.C. § 1254(1) (2012).
STATUTORY PROVISIONS INVOLVED
This case involves the interpretation of subsection 5845(f)(3) of the
National Firearms Act, the pertinent part which defines a “destructive device” as:
“any combination of parts either designed or intended for use in converting any
device into a destructive device . . . and from which a destructive device may be
readily assembled.” 26 U.S.C. § 5845(f)(3) (2012). See Appendix “A.”
This case also involves the interpretation of Section 2339B of the AntiTerrorism and Effective Death Penalty Act (AEDPA), which makes it a federal
1
crime to “knowingly provid[e] material support or resources to a foreign terrorist
organization, or attempt or conspire to do so.” 18 U.S.C. § 2339B (2012). See
Appendix “B.”
STATEMENT OF THE CASE
I. STATEMENT OF THE FACTS
Ms. Borne’s Arrest. On June 4, 2012, Officer Smith of the Harrisburg Police
Force arrested Ms. Emmaline Borne during a traffic stop. R. at 15. Borne and Ms.
Fiona Triton, both Harrisburg high school graduates, had been traveling with Ms.
Triton’s father, Mr. Hershel Triton, to the airport to fly to the European country of
Azran. R. at 13. Borne and Ms. Triton had previously been accepted into “Technical
Promise,” a pre-college study abroad program located in Azran. R. at 3.
During the traffic stop, Officer Smith noticed a calendar reminder on
Borne’s smartphone that prominently flashed “Meet Clive Allen at Café.” R. at 15.
This entry startled Officer Smith because a week earlier, the FBI had alerted the
Harrisburg Police Department that a possible associate of Clive Allen, a notorious
criminal hacker, was operating in Harrisburg. R. at 15. After requesting backup,
Officer Smith immediately arrested Borne, Ms. Triton, and Mr. Triton. R. at 15.
After obtaining a search warrant for Mr. Triton’s vehicle and the girls’
luggage, the police found three USB drives. One drive contained a plastic filament
formula useful to 3D printing; another contained 3D printer code capable of
producing a flawless cylinder-shaped pipe; the last contained 3D-printed gun plans.
R. at 16. Additionally, the police discovered a spreadsheet tracking Allen’s previous
2
known locations, and a computer-generated character of Allen. R. at 16. After
expanding the investigation to persons associated with Borne and Triton, the FBI
discovered that Ms. Adalida Ascot, the girls’ high school physics teacher and
mentor, had immediately quit her job and fled her home after learning about the
girls’ arrest in a local newspaper. R. at 16.
Borne, Ms. Triton, and Mr. Triton were charged with violation of Section
5845(f)(3) of the National Firearms Act and Section 2339B of the Anti-Terrorism
and Effective Death Penalty Act. R. at 18. With the advice of counsel, Mr. Triton
and Ms. Triton fully cooperated with the investigation and agreed to plea bargains
in connection with these charges. R. at 16. Borne, however, refused to cooperate
with the investigation and, against her counsel’s advice, challenged her charges. R.
at 16.
Borne’s trial. During Borne’s trial, the prosecution offered extensive
testimony about Borne’s internet activities and her interest in meeting Dixie
Millions, an informal organization of hacktivists responsible for numerous highprofile hacks of government and business interests, and Clive Allen, its leader. R. at
5, 17. Additionally, Borne had previously tweeted “With one wish, I wish that all
guns would blow up.#guncontrol” in response to a gun-related death of a classmate.
R. at 18. Borne had also retweeted pro-Dixie Millions articles. R. at 18.
The trial record showed that Borne wanted to teach Dixie Millions and other
hacker groups how to keep data safe, reveal “malicious corporate and government
lies that hurt people,” and avoid “exploit[ing] bank, financial, and government
3
security flaws.” R. at 17. It also reflected the FBI’s near certainty that Ascot was a
Dixie Millions hacker, and that her students had previously been arrested for
alleged hacking. R. at 17. Although Borne thought it was “pretty cool” that Ascot
could be the “Dixie” of Dixie Millions, she was not aware of that fact in her previous
interactions with Ascot. R. at 17.
According to an FBI ballistics expert’s testimony, the plastic filament formula
and the gun plans found in the vehicle and in Borne’s possession could be used to
create a device that could fire a bullet. R. at 18. When fired, this device would
always blow up, causing significant bodily harm or death to bystanders. R. at 18.
Additionally, the plastic cylinder, hairspray, and matches found in Borne’s luggage
could be combined into a bomb. R. at 18. According to expert testimony, any bright
teenager could find the information to create such a device on the internet. R. at 18.
Based on this evidence, Borne was convicted under both 26 U.S.C. §
5845(f)(3) and 18 U.S.C. § 2339B. R. at 18. She was sentenced to prison terms of
twelve months and fifteen years, to be served concurrently. R. at 18. The FBI’s
subsequent investigation revealed the following about Borne’s connections to Ascot
and her travel preparations to meet Allen and Dixie Millions members.
Clive Allen and Dixie Millions. Borne had expressed significant interest in
Dixie Millions and its leader, Clive Allen. R. at 18. Dixie Millions, an informal
organization of hacktivists, is suspected of―and has claimed responsibility
for―hacks and hack attempts of several U.S. government organizations and
corporations, including Milnet, CIA, FBI, IMF, Interpol, and Google. R. at 5. Dixie
4
Millions’ hacks were not confined to the United States; it operated internationally.
R. at 5.
Allen, a former NSA consulter, was the most prominent member of Dixie
Millions. R. at 5. On November 22, 2011, Allen released millions of sensitive
documents from the NSA that he had accessed through his employment in the
NSA’s database design and management department. R. at 5. Allen used the
Darknet, a computer network generally used by hackers for illegal file sharing, to
release these documents. R. at 5. Concurrently, Allen disclosed his identity as the
“Millions” half of Dixie Millions and threatened to release “millions of secrets.” R. at
5.
Subsequently, Dixie Millions engaged in numerous hacks and document
dumps of sensitive information. R. at 6. Prior to each dump, Dixie Millions forced
websites to display the message: “Dixie will make sure that millions follow Millions.
We watch the Watchmen. – Love, Dixie Millions.”
R. at 6. Consequently, on
December 30, 2011, the State Department labeled Allen a criminal and designated
Dixie Millions as a foreign terrorist organization (FTO). R. at 6.
Despite conducting a nationwide manhunt, U.S. law enforcement agencies
were unable to capture Allen. R. at 6. On March 20, 2012, Allen disclosed that he
had fled to Azran and planned to retire there. R. at 6. The Azranian government
granted him asylum and declared that any foreign government attempt to gain
custody of him would be an act of war. R. at 6. When the United States attempted to
negotiate Allen’s extradition, Allen successfully derailed these negotiations by
5
releasing documents showing that the NSA wiretapped the Azranian Prime
Minister and Ambassador of the United Nations’ private communications. R. at 6.
To obtain Allen’s extradition, U.S. officials began investigating the identity
of the “Dixie” half of Dixie Millions. R. at 6. Officials probed Allen’s connections with
former classmates at the University of Misthallery during 1998 to 2002, when he
was a student there. R. at 6. Until now, this search has been unsuccessful, R. at 6,
although the FBI is nearly certain that Ascot, Borne and Triton’s mentor, is the
“Dixie” of Dixie Millions. R. at 17.
The “Technical Promise” Program. Borne first became acquainted with
Ascot in high school, where Ascot taught physics. R. at 2. Ascot recommended that
Borne and Triton apply to “Technical Promise,” a pre-college study-abroad program
developed by New Tejas University and the University of Misthallery. R. at 2‒3.
Both Borne and Triton had already been accepted by New Tejas University.
Technical Promise provided select high school students interested in science,
technology, engineering, and mathematics with pre-college training in these areas.
R. at 3. Ascot had previously participated in this program. R. at 3.
Based on Ascot’s suggestion, Borne and Triton applied to Technical
Promise. R. at 3. Borne decided to apply because of her interest in computer
programming and gaming. R. at 3. Triton’s decision was motivated by her interest
in chemistry and chemical engineering. R. at 3. Ascot wrote recommendation letters
for both girls. R. at 4.
6
Borne’s relationship with Ascot. Ascot eventually became Borne’s mentor,
providing her with one-on-one tutoring in computer programming. R. at 4. Ascot
and Borne had mutual interests in computer games and the internet. R. at 4. Ascot
also advised Borne about future career options. R. at 4. This relationship continued
after both girls’ acceptance into Technical Promise. R. at 4.
During one of their discussions, Borne asked Ascot about Dixie Millions. R.
at 8. Ascot responded that Dixie Millions members were “White Hat Hackers” and
that Allen was “an admirable person.” R. at 8. Further, Ascot stated that good
hackers should “hack systems to expose ‘flaws and frauds,’” but not hurt innocent
people. R. at 8. Ascot expressed her hope that Dixie Millions would ultimately be
viewed as a force for good in the world. R. at 8.
Borne’s decision to join Dixie Millions. Acting on Ascot’s advice, Borne
decided she wanted to become a “White Hat Hacker.” R. at 11. She actively
researched Allen. R. at 11. On many of the websites she visited, Allen had a folk
hero status. R. at 11. Ultimately, Borne came to view Allen as a role model of a
“White Hat Hacker.” R. at 11. She decided to try to find him immediately upon
arrival in Azran. R. at 11.
Borne used Darknet to find information on Allen’s location. R. at 11. She
compiled data in a spreadsheet based on his most recent locations, including the
disguises he had been wearing. R. at 11. From this data, she deduced a pattern;
Allen went to the University of Misthallery campus café every Tuesday that fell on
a prime number date. R. at 12. Borne decided to try to meet him there. R. at 12. To
7
remind herself, Borne entered a calendar event into her smartphone, labeling it
“Meet Clive Allen at café.” R. at 12. Next, Borne prepared materials she hoped
would showcase her hacker abilities.
Borne’s travel preparations for her Azran trip. While preparing for Technical
Promise, Borne developed an interest in a 3D printer that Mr. Triton, Ms. Triton’s
father, had purchased. R. at 7. Mr. Triton, a chemical engineer for a major
American weapons manufacturer, bought this printer to experiment with
fabricating objects using plastic filaments and sell them for profit. R. at 7. After
Borne expressed interest in how the printer worked, Mr. Triton explained the
mechanics to her. R. at 7. Triton allowed Borne to attempt to solve some of the 3D
printer’s software problems, especially the printer’s code causing it to print an
imperfect curve. R. at 7.
To solve this problem, Borne enlisted Ascot’s help. R. at 7. Together, they
solved the printer’s software coding problem. R. at 8. This new computer code
allowed them to print a perfect curve. R. at 8. With this new capability, Ascot and
Borne, on a later occasion, were able to print a perfectly round cylindrical pipe. R. at
10. With Mr. Triton’s permission, Borne kept the perfect cylinder. R. at 10.
For his own use, Mr. Triton decided to use his 3D printer to develop a
plastic filament formula to fabricate a 3D-printed gun. R. at 9. Triton incorporated
the design of the perfect cylinder Ascot and Borne had printed for use in his test. R.
at 10. Triton found plans online on how to design and print a handgun. R. at 9. He
8
downloaded these plans and saved them on a USB drive. R. at 9. Triton believed the
gun design would be an “extremely valuable product.” R. at 9.
To aid in developing the plastic filament formula, Mr. Triton enlisted the
help of his daughter, Ms. Triton. R. at 11. However, they were unsuccessful in
perfecting the formula. R. at 11. Because she thought that her professors in
Technical Promise would be able to help her develop the formula, Ms. Triton
decided to bring it with her to Azran. R. at 11. Although her father disagreed with
this, Ms. Triton secretly downloaded the formula on a USB drive to take with her to
Azran. R. at 11.
On June 3, 2012, Borne and Triton packed for the Azran trip. R. at 12.
Along with her belongings, Borne took the USB drive with the perfect curve code
and the 3D-printed plastic cylinder. R. at 12. Borne planned to use these to impress
Allen with her hacker credentials. R. at 12. Additionally, Borne packed the
spreadsheet with Allen’s locations and a picture of an Allen look-alike with which
she intended to confirm his identity. R. at 12. To pack, Borne used a camping duffle
bag that included a small pack of matches. R. at 12. She also packed her toiletries,
including an eleven-ounce can of hairspray. R. at 12‒13. Mr. Triton took the USB
drive with the 3D gun plans with him for the trip to the airport. R. at 13. Because
he intended to give it to the girls as a going-away gift, he had put music on it. R. at
13. As recounted above, a traffic stop on the way to the airport led to Borne’s arrest.
R. at 15. Her subsequent convictions are challenged in this suit. R. at 18.
9
II. NATURE OF THE PROCEEDINGS
The District Court. On June 4, 2015, Borne was arrested and charged with
possession of a “destructive device” under 26 U.S.C. § 5845(f)(3) and providing
material support to a foreign terrorist organization (FTO) under 18 U.S.C. § 2339B.
R. at 16. After trial, Borne was convicted on both counts. R. at 18. The United
States District Court for the Western District of New Tejas sentenced Borne to
twelve months in prison on the first count and fifteen years on the second count, to
be served concurrently. R. at 18. Borne filed a timely appeal from her conviction to
the United States Court of Appeals for the Fourteenth Circuit. R. at 2.
The Court of Appeals. Borne appealed the district court’s judgment. R. at 2.
The Fourteenth Circuit Court of Appeals affirmed the district court’s convictions by
holding for the respondent. R. at 18‒24.
SUMMARY OF THE ARGUMENT
The court of appeals properly affirmed the district court’s conviction of
Borne under 26 U.S.C. § 5845(f)(3) for possession of a “destructive device” and under
16 U.S.C. § 2339B for providing material support and resources to an FTO.
I.
In enacting § 5845(f)(3), Congress intended that all devices whose objective
nature suggested an illicit purpose fall within the Act’s scope, see United States v.
Freed, 401 U.S. 601, 607 (1971), but also provided that devices could fall under the
statute’s scope through the possessor’s intent. United States v. Johnson, 152 F.3d
618, 628 (7th Cir. 1998). The Fourteenth Circuit properly upheld petitioner’s
10
conviction under § 5845(f)(3) because the 3D gun plans and filament formula, and
the combination of the matches, plastic cylinder, and hairspray both constitute
“destructive devices” under that subsection. Accepting petitioner’s argument in this
case would thwart Congress’s comprehensive approach for addressing the national
security threat posed by unregistered explosive devices.
First, the Fourteenth Circuit correctly interpreted § 5845(f)(3) as setting forth
a mixed conviction standard because that interpretation is most faithful to the plain
meaning of the statute’s text and Congress’s intent, and it aligns with this Court’s
traditional method of interpreting federal criminal statutes. The text of subsection
5845(f)(3) supports the application of this mixed standard because it allows a
“destructive device” to come within the scope of the statute both through design and
intent. See § 5845(f)(3). Further, the mixed conviction standard directly aligns with
this Court’s determination that a mens rea requirement should not be inferred in
the criminalization of devices whose inherent nature suggests their illegality, Freed,
401 U.S. at 607, but should be inferred where the device’s use could be either illicit
or salutary. Staples v. United States, 511 U.S. 600, 601 (1994).
Second, the Fourteenth Circuit correctly applied the mixed conviction
standard because the objective nature of the 3D gun design and filament formula,
and the combination of the matches, plastic cylinder, and hairspray, fall under §
5845(f)(3)’s scope. Although some of the parts were seemingly harmless, in today’s
world, terrorists often use innocuous items to avoid detection. Further, the fact that
some of the component parts at issue were only “ones and zeros,” R. at 21, is
11
immaterial. This Court’s precedent supports the proposition that the mere
possibility of the use of a design to assemble a “firearm,” and by implication a
“destructive device” under the Act is enough to place it within the Act’s ambit. See
United States v. Thompson/Center Arms Company , 504 U.S. 505, 513 (1992). While
apparently individually innocent when unassembled, the parts contained the
technological potential of being assembled in a matter of seconds into a device
capable of generating destruction. R. at 18. Alternatively, the objective nature of the
component parts at issue, when combined with Borne’s intent to “blow up guns” and
supply these parts to FTO members, R. at 18, met the mixed conviction standard
under § 5845(f)(3).
II.
Congress enacted § 2339B with two purposes: to combat FTOs’ planning and
executing destructive activities, and to prevent both direct and indirect funding of
these organizations through goods, services, and personnel. See Humanitarian Law
Project v. U.S. Treasury Dep’t, 578 F.3d 1133, 1148 (9th Cir. 2009). Congress found
that FTOs “are so tainted by their criminal conduct that any contribution to such an
organization facilitates that conduct.” See Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, § 301(a)(7), 110 Stat. 1214,
1247. Accepting petitioner’s argument in this case would thwart Congress’s
comprehensive approach for addressing the national security threat posed by FTOs.
The Constitution supports the Fourteenth Circuit’s holding. First,
Humanitarian Law Project v. Holder effectively forecloses petitioner’s facial attacks
12
on the constitutionality of § 2339B because that case held that § 2339B is not
unconstitutionally overbroad or facially vague. 561 U.S. 1, 24, 39‒40 (2010). Second,
any incidental effect that Borne’s conviction has on her First Amendment free
speech and association rights fails to override the profound national security
interest at stake here. Borne’s attempt to provide technological weapon plans and
3D-printed materials to Dixie Millions directly implicates national security because
of Dixie Millions’ role in numerous hacks and document dumps of government
national security information. Further, these actions would lend legitimacy to Dixie
Millions and facilitate its recruitment and fundraising efforts.
Third, § 2339B’s prohibition on the provision of material support and
resources to FTOs clearly establishes a line between illegal and acceptable
activities. This Court recognized as much in Humanitarian Law Project, 561 U.S. at
20‒22. As in that case, a ruling for the petitioner here would leave gaps in
antiterrorism law and would undermine Congress’s ability to employ leverage
against FTOs. To avoid this result, this Court should uphold the constitutionality of
§ 2339B against all of petitioner’s challenges and affirm the holding of the
Fourteenth Circuit Court of Appeals.
ARGUMENT
I.
THE COURT OF APPEALS PROPERLY UPHELD MS. BORNE’S CONVICTION UNDER 26
U.S.C. § 5845(F)(3) FOR POSSESSION OF A “DESTRUCTIVE DEVICE.”
The National Firearms Act (the Act), 26 U.S.C. §§ 5801‒5872, makes it
unlawful to “receive or possess a firearm . . . not registered in the National Firearms
Registration and Transfer Record.” 26 U.S.C. § 5861(d). The definition of “firearm”
13
includes any “destructive device.” 26 U.S.C. § 5845(a). Subsection (f) defines a
“destructive device” as, among other things:
any explosive, incendiary, . . . bomb, . . . grenade, . . . and . . . any
combination of parts either designed or intended for use in converting
any device into a destructive device as defined by subparagraphs (1)
and (2) and from which a destructive device may be readily assembled.
26 U.S.C. § 5845(f)(1)‒(3).
The Fourteenth Circuit properly upheld Borne’s conviction under § 5845(f)(3)
because the 3D gun plans and filament formula, and the combination of the
matches, plastic cylinder, and hairspray both constitute “destructive devices” for
purposes of that subsection. First, the Fourteenth Circuit correctly interpreted §
5861(f)(3) as setting forth a mixed conviction standard because that interpretation
is most faithful to the plain meaning of the statute’s text and Congress’s intent, and
aligns with this Court’s traditional method of interpreting federal criminal statutes.
Second, the Fourteenth Circuit correctly applied the mixed conviction standard
because the objective nature of the 3D gun design and filament formula, and the
combination of the matches, plastic cylinder, and hairspray, meet the definition of
“destructive device” under § 5845(f)(3). Alternatively, the objective nature of the
component parts at issue, when combined with Borne’s intent to supply these parts
to members of an FTO, met the mixed conviction standard under § 5845(f)(3).
14
A. The Court of Appeals Properly Applied a Mixed Conviction Standard
When Interpreting § 5845(f)(3) Because that Approach is Most Faithful to
the Text and Legislative History of the Statute, and Comports with this
Court’s Traditional Method of Interpreting Federal Criminal Statutes.
The Fourteenth Circuit correctly applied a mixed conviction standard in
deciding whether Borne’s designing and possessing the parts at issue violates §
5845(f)(3). The text of subsection 5845(f)(3) supports the application of this standard
because it allows a “destructive device” to come within the scope of the statute both
through design and intent. See § 5845(f)(3). Further, the Fourteenth Circuit’s
interpretation of subsection 5845(f)(3) comports with this Court’s tradition of not
requiring mens rea in cases where the objective nature of the criminal activity
proscribed by the statute is readily apparent, but requiring a mens rea when
statutes criminalize activity of a traditionally lawful character. See Staples, 511
U.S. at 607.
The legislature is charged with defining the elements of a crime. In most
cases, but especially with regard to federal crimes, these elements are statutory.
Liparota v. United States, 471 U.S. 419, 424 (1985). Thus, determining the
conviction standard under a federal statute is a question of statutory construction
and inference of the intent of Congress. United States v. Balint, 258 U.S. 250, 253
(1922). Appellate courts review statutory interpretation issues de novo. See United
States v. Welch, 327 F.3d 1081, 1089‒90 (10th Cir. 2003).
Although a circuit split currently exists as to the proper conviction standard
required under § 5845(f)(3), United States v. Curtis, 520 F.2d 1300, 1302 (1st Cir.
1975), the Fourth, Seventh, Tenth, and Eleventh Circuits have all applied a mixed
15
conviction standard. See United States v. Spoerke, 568 F.3d 1236, 1248 (11th Cir.
2009); United States v. Uzenski, 434 F.3d 690, 701 n.4 (4th Cir. 2006); Johnson, 152
F.3d at 628; United States v. Morningstar, 456 F.2d 278, 281 (4th Cir. 1972). Under
this standard, courts will not inquire into the intent of the possessor of devices or
components parts of devices that are inherently suited only for illegal uses as a
weapon. Johnson, 152 F.3d at 625. Where the device or parts have both illegal and
salutary uses, however, courts will give the possessor’s intent weight in determining
whether it is a “destructive device” under § 5845(f)(3). Id. at 624.
Statutory interpretation begins with the text of the statute. See Connecticut
Nat. Bank v. Germain, 503 U.S. 249, 253‒54 (1992). Here, the relevant text is silent
as to the precise scope of the conviction standard. See § 5845(f)(3). The specific
language of subsection 5845(f)(3) defines a “destructive device” as “any combination
of parts either designed or intended for use in converting any device into a
destructive device as defined
by subparagraphs (1) and (2) and from which a
destructive device may be readily assembled.” § 5845(f)(3) (emphasis added).
The text of subsection (3), however, reflects the necessity to cover devices
whose objective character clearly brings them within the ambit of “destructive
devices” and devices whose component parts are susceptible to both abuse and
salutary use. Johnson, 152 F.3d at 625. As used in § 5845(f)(3), the terms “designed”
and “intended” are separated by the disjunctive word “or,” indicating that these
words are to be given separate meanings unless the context indicates otherwise. See
id. This approach comports with this Court’s traditional method of interpreting
16
federal criminal statutes, which “relie[s] on the nature of the statute and the
particular character of the items regulated” in determining the conviction standard.
Staples, 511 U.S. at 607. Thus, under subsection (3), a “device” can constitute a
“destructive device” either through “design” or “intent.” See United States v.
Lussier, 128 F.3d 1312, 1315 & n.4 (9th Cir. 1997).
Whether a “device” constitutes a “destructive device” through “design” under
§ 5845(f)(3) is an objective inquiry. Congress clearly intended that all devices whose
objective nature suggested an illicit purpose fall within the Act’s scope. See Freed,
401 U.S. at 607. The statutory provision’s place in the overall regulatory scheme
confirms this. The National Firearms Act, as originally enacted, was aimed at a
specific category of weapons characteristically employed by gangsters. Staples, 511
U.S. at 626 (Stevens, J., dissenting). Congress could reasonably assume that
individuals found in possession of military or gangster-type weapons intended to
use them for illicit purposes. See id. For this reason, Congress decided to criminalize
mere possession of these weapons. See id. Further, at the time of this statute’s
enactment, this Court had already interpreted the Harrison Anti-Narcotic Act,
which was aimed at objectively dangerous drugs, not to require proof of intent.
Balint, 258 U.S. at 250.
This Court has reasoned that in cases where the objective nature of the
device makes clear to the defendant that the device poses “a public danger,” the
defendant should be aware of the probability of strict regulation, and therefore
strict liability, for failing to meet statutory requirements. Balint, 258 U.S. at 254.
17
As such, this Court has uniformly interpreted portions of the Act that regulated
objectively dangerous and destructive devices such as machine guns and grenades
as not having an intent requirement. See Staples, 511 U.S. at 636 (Stevens, J.,
dissenting); Freed, 401 U.S. at 607. When Congress did intend that certain portions
of the Act contain knowledge requirements, it specifically amended those portions of
the Act. See Staples, 511 U.S. at 636 & n.21. Thus, the text and legislative history
of the statute, and this Court’s traditional method of interpreting federal criminal
statutes, demonstrate that devices whose objective character clearly indicates their
destructive nature fall under the scope of subsection (3) regardless of the possessor’s
intent.
Subsection 5845(f)(3)’s scope, however, goes beyond devices whose objective
nature clearly indicates their destructive potential. See Johnson, 152 F.3d at 626. If
Congress had intended only to regulate a “combination of parts” designed as an
objectively destructive device, it would have stopped at that point. See id. However,
Congress went on to define a second type of illegal device, namely a “combination of
parts . . . intended for use in converting any device into a destructive device.” §
5845(f)(3) (emphasis added). As to these devices, Congress provided that the
possessor’s intent determines whether they fall under subsection 5845(f)(3). See
Johnson, 152 F.3d at 626. The House Report on the Gun Control Act of 1968
supports this interpretation by stating that “the devices excluded are those not
designed or redesigned or used or intended for use as a weapon-e.g. construction
tools using explosives when used for such purposes.” H.R. Rep. No. 1577, 90th
18
Cong., 2nd Sess. 12 (1986), reprinted in 3 U.S. Code Cong. & Admin. News, 4418
(1968) (emphasis added).
Requiring that the intent of the possessor be established in cases where the
illegal or objectively destructive nature of the device is not readily apparent is wellsupported by this Court’s precedent. This Court has generally inferred a mens rea
requirement when interpreting statutes proscribing conduct that has “a long
tradition of being entirely lawful.” Staples, 511 U.S. at 601. Thus, in Staples, this
Court inferred a mens rea requirement in section 5861(d) of the Act, which
proscribed ownership of unregistered automatic guns. See id. This Court reasoned
that ownership of guns in general had always been lawful, and therefore owners of
potentially defective semiautomatic guns were not on notice that their mere
ownership of the same was illegal under the Act. See id. This Court further
emphasized that it had always taken “particular care to avoid construing a statute
to dispense with mens rea where doing so would ‘criminalize a broad range of
apparently innocent conduct.’” Id. at 610 (quoting Liparota, 471 U.S. at 426). This
Court stressed that where the conduct at issue is “apparently innocent,” and enjoys
a history of lawfulness, a mens rea element should be inferred in a statute
criminalizing that conduct’s manifestations. Id.
In conclusion, the Fourteenth Circuit’s adoption of the mixed conviction
standard in applying subsection 5845(f)(3) is well-supported by the text and
legislative history of the Act and this Court’s precedent. Under the mixed conviction
standard, a court will first determine if the device’s objective character clearly
19
indicates its illicit nature. This approach directly aligns with this Court’s
determination that a mens rea requirement should not be inferred with regard to
the criminalization of devices whose inherent nature suggests their illegality. The
mixed conviction standard’s second step, considering intent if the device’s use could
be either illicit or salutary, aligns with this Court’s precedent of inferring a mens
rea element where the statute proscribes conduct enjoying historical legitimacy.
B. Under Both Prongs of the Mixed Standard, and Consequently, Under Any
of the Approaches Adopted by the Circuits, Borne was Properly Charged
under Subsection 5845(f)(3) for Fabricating and Designing a 3D Gun Plan
and a Filament Design, and for Possessing a Combination of a Plastic
Cylinder, Hairspray, and Matches.
Appellate courts review whether the government provided sufficient
evidence for a conviction at trial de novo, as it is a question of law. United States v.
Keller, 916 F.2d 628, 632 (11th Cir. 1990). However, “[t]he court . . . views the
evidence in the light most favorable to the government, with all reasonable
inferences and credibility choices made in the government’s favor.” Id. Further,
credibility determinations are within the sole discretion of the jury, to the extent
that the jury resolved any contradictions in the testimony offered at trial in the
government’s favor. United States v. Hines, 717 F.2d 1481, 1491 (4th Cir.1983).
Here, the Fourteenth Circuit properly upheld Borne’s conviction under §
5845(f)(3) because the government provided sufficient evidence that Borne’s
designing and fabricating 3D gun plans and a filament design, and possessing a
combination of matches, hairspray, and a 3D-printed plastic cylinder violated
subsection 5845(f)(3). First, the objective nature of the both combinations of parts,
20
when each are construed as a whole, is that of “destructive devices” under
subsection 5845(f)(3) because the parts, if combined, do not have any legitimate
social use. Second, and alternatively, the parts at issue fall under subsection
5845(f)(3) because Borne intended to use the parts to convert them into a
destructive weapon.
1. Borne was properly charged under subsection 5845(f)(3) for designing
and fabricating 3D gun plans and a filament design, and for possessing
a combination of matches, hairspray, and a plastic cylinder because,
objectively, both combinations of parts constitute “destructive devices”
under that subsection.
Subsection 5845(f)(3) defines a “destructive device” as a “combination of parts
either designed or intended for use in converting any device into a destructive
device.” § 5845(f)(3). Thus, a combination of parts may become a “destructive device”
for purposes of subsection 5845(f)(3) by (1) design, or (2) intent. See United States v.
Oba, 448 F.2d 892, 894 (9th Cir. 1971). Circuits interpreting whether a device is
designed as a destructive device for purposes of subsection 5845(f)(3) have used an
objective inquiry. See, e.g., United States v. Urban, 140 F.3d 229, 232‒34 (3d Cir.
1998); Lussier, 128 F.3d at 1315; United States v. Posnjak, 457 F.2d 1110, 1117 (2d
Cir. 1972). Under this objective inquiry, courts determine whether the device could
be construed as having “no legitimate social purpose,” United States v. Markley,
567 F.2d 523, 527 (1st Cir. 1997), or “any value other than as a weapon.” Johnson,
152 F.3d at 627.
Using this standard, the circuits have uniformly held that a device’s
homemade nature does not prevent it from being objectively construed as a
21
“destructive device” under subsection 5845(f)(3). See, e.g., United States v. Greer,
588 F.2d 1151, 1155 (6th Cir. 1978); United States v. Tankersley, 492 F.2d 962, 966
(7th Cir. 1974); United States v. Peterson, 475 F.2d 806, 810 (9th Cir. 1973)
(“Congress was well aware of the rampant destruction of property and dangers to
life and limb faced by the public through . . . homemade instruments.”). Thus, where
the defendant described devices made of plastic PVC pipe as “pipe bombs” and its
fragments as “shrapnel,” stated that they could injure bystanders, and an expert
testified that the devices lacked any social or commercial use, the court found that
the component parts were designed as a weapon under subsection 5845(f)(3).
Spoerke, 568 F.3d at 1247.
Further, the device at issue does not have to be highly destructive or
extremely dangerous to constitute a “destructive device” for purposes of subsection
5845(f)(3). Markley, 567 F.2d at 526. In United States v. Markley, the First Circuit
held that 4.5 ounces of black powder, a filler of toilet tissues, and cardboard discs
constituted a “destructive device” under subsection 5845(f)(3). Id. The Markley court
reasoned that “neither ‘highly’ nor any other modification of ‘destructive device’ is
used in the legislation defining destructive device.” Id. Further, the court observed
that the Act’s legislative history did not refer to destructive devices as “highly
dangerous or destructive.” Id.
Further, a device’s faulty construction or poor workmanship does not prevent
it from being objectively designed as a weapon under subsection 5845(f)(3). Johnson,
152 F.3d at 628. Thus, in United States v. Johnson, where the device involved a
22
Shopko bag containing black powder, nails, plastic pipe, wax end caps, and a hobby
fuse, the Seventh Circuit found that it was objectively designed as a weapon. Id. at
627‒28. The court discounted the fact that the device’s faulty construction
prevented it from actually exploding, holding that the Act’s imposition of criminal
liability did not depend on the device’s workmanship. Id. at 627.
Additionally, a device is not required to be fully assembled to fall under
subsection 5845(f)(3). United States v. Berres, 777 F.3d 1083, 1090 (10th Cir. 2015).
Construing the statute as only applying to fully assembled devices would
contravene subsection 5845(f)(3)’s plain language, which regulates the possession of
an unregistered combination of parts “from which a destructive device may be
readily assembled.” § 5845(f)(3). Thus, when read in this context, the words
"combination of parts" in subsection 5845(f)(3) means an “association” rather than a
union of parts. United States v. Davis, 313 F. Supp. 710, 714 (1970). Adopting this
approach, the Fourth Circuit, in United States v. Uzenski, found that a piece of
galvanized pipe containing red dot power constituted a “destructive device” under
the Act despite its unassembled state. 434 F.3d at 702. The court reasoned that
these parts constituted a “destructive device” because, when assembled together,
the metal threading of the pipe and the end caps could cause an explosion,
rupturing the pipe into pieces of shrapnel. Id. at 702.
If the component parts are unassembled, however, a destructive device must
be capable of being “readily assembled” from the parts. See § 5845(f)(3). The
question is whether the component parts, once “connected, in however crude a
23
fashion, formed a new entity with destructive capabilities of its own and without a
legitimate purpose.” United States v. Bubar, 567 F.2d 192, 201 (2d Cir. 1977). In
United States v. Ragusa, the Eighth Circuit held that a device consisting of six
trash bags containing five gallons of gasoline each, suspended throughout a house
and connected with paper towels, was a “destructive device” under subsection
5845(f)(3). 664 F.2d 696, 700 (8th Cir. 1981). The court reasoned that the parts, once
assembled, became a device which possessed a bomb’s physical characteristics and
whose objective purpose was clearly destructive. Id. at 700.
Finally, even where each component part of the device at issue has social
utility, that device still constitutes a “destructive device” if the combination of the
parts has no valid salutary use. Tankersley, 492 F.2d at 966. In United States v.
Tankersley, the court found that a combination of a firecracker, bottle, tape, and
paint remover constituted a “destructive device” under subsection 5845(f)(3). Id. The
court dismissed the fact that each of the separate parts had a valid social use,
reasoning that when combined, a Molotov cocktail has no salutary use. Id.
Here, the Fourteenth Circuit properly held that both combinations of parts at
issue constituted “destructive devices” under subsection 5845(f)(3). The plastic
filament formula and the 3D gun plan could be combined into a firearm with the
potential of exploding like a bomb. R. at 18. Likewise, the hairspray, matches, 3Dprinted cylinder, and other items could be assembled into an explosive device. R. at
18. Thus, both combinations were “designed . . . for use in converting any device into
a destructive device . . . .” § 5845(f)(3). The objective nature of both these parts’
24
combinations had “no legitimate social purpose,” Markley, 567 F.2d at 527, or “any
value other than as a weapon.” Johnson, 152 F.3d at 627.
First, these devices’ homemade nature, R. at 8‒12, does not prevent them
from being objectively designed as “destructive devices” under subsection 5845(f)(3).
Greer, 588 F.2d at 1155. In Spoerke, the court held that devices made of PVC pipe
were “destructive devices” under subsection 5845(f)(3) because the defendant
described the devices as “pipe bombs,” its fragments as “shrapnel,” and stated that
they could injure people nearby. 568 F.3d at 1247. Similarly, here the devices,
consisting of a digital design, plastic filament formula, 3D-printed cylinder,
hairspray, matches, and other items, were homemade. R. at 18. However, Mr.
Triton, a weapons expert and a suspect in this case, described one of the items as a
handgun. R. at 9. Further, an FBI ballistics expert’s testified during trial that both
combinations could be used to make a bomb. R. at 18. Thus, because one of the parts
is a weapon, R. at 9, and both combinations of parts were capable of being used as
bombs and destroying property, R. at 18, they were “destructive devices” under the
Act despite their homemade nature.
Second, the fact that testing of the firearm parts showed that it might not
work as intended, but instead blow up and harm the user and bystanders, R. at 18,
does not prevent the device from falling under subsection 5845(f)(3). Johnson, 152
F.3d at 628. Even if both combinations of parts at issue were wholly incapable of
exploding at all, the parts could still constitute a “destructive device” under
subsection 5845(f)(3). Id. at 627. In Johnson, the court found that a device’s faulty
25
construction, which precluded it from actually exploding, did not prevent it from
falling under subsection (3). Id. at 627. Here, however, the trial court credited FBI
testimony that the firearm parts would always blow up when fired. R. at 18. As
such, any faulty construction of the parts does not negate a finding that these parts
were objectively designed to be converted into a “destructive device.”
Third, the devices’ unassembled nature does not preclude them from being
“destructive devices” under subsection (3). Like the component parts in Uzenski,
434 F.3d at 702, the parts at issue here were unassembled. R. at 18. In Uzenski,
however, the court focused on the fact that when the parts were assembled together,
the resulting device could explode. Id. at 702. Similarly, here the assembled
combination of both the plastic filaments formula and the 3D gun plans, and the
hairspray, matches, and 3D-printed cylinder, could be used to make a bomb. R. at
18. Thus, the assembled parts at issue both constitute destructive devices despite
the parts’ unassembled nature.
Fourth, the component parts at issue could be readily assembled into a
destructive device. As the Fourteenth Circuit noted, in today’s world, digital items
can be assembled into destructive devices “in the blink of an eye.” R. at 21. Further,
they can be mass-produced in hours. R. at 21. In fact, the trial record reflected that
even a teenager could obtain the information on how to assemble the firearm parts
into a bomb on the internet. R. at 18. Here, Mr. Triton was an experienced chemical
engineer who had worked for a major American weapons manufacturer. R. at 7. His
daughter, Ms. Triton, was similarly interested in chemical engineering. R. at 4.
26
Borne had an interest in computer programming, R. at 3, while Ascot was a
proficient computer coder. R. at 4. Borne had worked closely with all of these
individuals in designing and fabricating the parts at issue. R. at 6‒8. She helped
solve coding problems that even Mr. Triton could not solve. R. at 6‒8. Therefore, she
had the knowledge and capability to readily assemble both combinations of parts
into explosive devices.
The rudimentary nature of some of the parts also does not prevent them from
being capable of being readily assembled into a destructive device. In Ragusa, the
Eighth Circuit held that very rudimentary parts, namely six trash bags each
containing five gallons of gasoline, suspended throughout a house and connected
with paper towels, could be readily assembled into a “destructive device” under
subsection 5845(f)(3). 664 F.2d at 700. If even these parts could be “readily
assembled” into a “destructive device” for purposes of subsection 5845(f)(3), see
Ragusa, 664 F.2d at 700, surely matches, a plastic cylinder, and hairspray can be
readily assembled into a “destructive device” under subsection 5845(f)(3).
Fifth, the possible social utility of each of the component parts does not
prevent the combinations of these parts from constituting “destructive devices.” See
Tankersley, 492 F.2d at 966. In Tankersley, the court dealt with a bottle,
firecracker, tape, and paint remover, each of which had social utility in and of itself.
Id. That court, however, found that the combination of these items constituted a
“destructive device” under subsection 5845(f)(3) because the combination of the
parts, a Molotov cocktail, had no salutary use. Id. Similarly, here the hairspray,
27
matches, filament formula, plastic cylinder, and even the 3D gun plan may have a
valid social use in of themselves. R. at 19. However, as the Fourteenth Circuit
noted, in today’s world terrorists specifically use innocuous items to avoid detection.
R. at 20. For example, pressure cookers and shoes have been converted into
destructive devices.1 Thus, it is not the social utility of a device’s component parts
that determines its objective nature, but rather whether the combination of the
parts is objectively designed to be combined into a destructive device. See
Tankersley, 492 F.2d at 966. Because the trial court credited the FBI expert’s
testimony that both combinations of parts at issue could be used to make a bomb, R.
at 18, the social utility of each individual part does not prevent the combinations of
parts from constituting a “destructive device.”
The fact that the 3D gun design and filament formula were only “ones and
zeros,” R. at 21, is of no moment. This Court’s precedent supports the proposition
that the mere possibility of the use of a design to assemble a “firearm” under the
Act is enough to place it within the Act’s ambit. See Thompson/Center Arms
Company, 504 U.S. at 513. Because in Thompson/Center Arms Company this Court
held that a pistol distributed in conjunction with a kit allowing conversion into a
firearm that constituted a “rifle” under the Act fell within the Act’s ambit, see id.,
the plastic filament formula, when combined with the 3D gun plans, constitutes a
“destructive device” under subsection 5845(f)(3).
See Michael Martinez, Friend of Boston Marathon Bomber Tsarnaev Sentenced to 6 Years, CNN
(June 2, 2015, 6:45 PM), http://www.cnn.com/2015/06/02/us/boston-marathon-bombing-dzhokhartsarnaev/; Tracy Connor, Shoe-Bomber Has ‘Tactical Regrets’ Over Failed American Airlines Plot,
NBC NEWS (Feb. 3, 2015, 9:55 AM), http://www.nbcnews.com/news/us-news/shoe-bomber-hastactical-regrets-over-failed-american-airlines-plot-n296396.
1
28
Further, any reliance by petitioner on United States v. Fredman, 833 F.2d
837 (9th Cir. 1987), and United States v. Schofer, 310 F. Supp. 1292 (1969), which
held that destructive devices under subsection 5845(f)(3) do not include commercial
explosives, is misplaced. It is well-established among the circuits that Congress
intended Section 5845(f) to cover more than military or gangster-type weapons. See,
e.g., Greer, 588 F.2d at 1155; Markley, 567 F.2d at 526; Tankersley, 492 F.2d at
966; Peterson, 475 F.2d at 810. This is supported by the Act’s legislative history,
which displays that Congress was well-aware of homemade devices’ threat to the
public. Peterson, 475 F.2d at 810. In fact, the Act’s reach does not depend on the
destructive power of the device at issue, because “neither ‘highly’ nor any other
modification of ‘destructive device’ is used” anywhere in the definition of
“destructive device.” Markley, 567 F.2d at 526.
Additionally, the affirmative defense of subsection 5845(f)(3), stating that
“the term ‘destructive device’ shall not include any device which is neither designed
nor redesigned for use as a weapon,” § 5845(f)(3), is inapplicable here. The Act’s
legislative history displays that this exception must be invoked as an affirmative
defense by the defendant. S. Rep. No.1501, 90th Cong., 2d Sess. 47 (1968); see
United States v. Dalpiaz, 527 F.2d 548, 552 (6th Cir. 1975). Because the record in
this case is devoid of any evidence that the defendant invoked this affirmative
defense, R. at 17‒18, that part of subsection 5845(f)(3)’s text is inapplicable.
Finally, the rule of lenity is inapplicable here because it “only applies if . . .
there remains a grievous ambiguity . . . such that the Court must simply guess as to
29
what Congress intended.” Barber v. Thomas, 560 U.S. 474, 488 (2010). Here, the
statutory text, the Act’s legislative history, and this Court’s common method of
interpreting federal criminal statutes all support the Fourteenth Circuit’s holding.
Further, even if this Court takes this rule into consideration, it does not “require
the act be given the narrowest meaning.” United States v. Raynor, 302 U.S. 540,
552 (1938).
In conclusion, both combinations of parts at issue were objectively designed
for use as a “destructive device” under subsection 5845(f)(3). While apparently
innocuous and when unassembled, these parts contained the technological
capability of being assembled in a matter of seconds into a device capable of
generating destruction. R. at 18. Further, once assembled, these devices could be
mass-produced in hours. R. at 18. As such, the combinations of parts at issue
neither had a “legitimate social purpose,” Markley, 567 F.2d at 527, nor “any value
other than as a weapon.” Johnson, 152 F.3d at 627. Objectively, the component
parts were designed to be converted into a “destructive device” under subsection
5845(f)(3).
2. Alternatively, Borne was properly charged under subsection 5845(f)(3)
for designing and fabricating 3D gun plans and a filament design, and
for possessing a combination of matches, hairspray, and a plastic
cylinder because those parts were intended for use in converting the
parts into a destructive weapon.
While a combination of parts may constitute a “destructive device” by
design, those parts may also be construed as a “destructive device” under subsection
5845(f)(3) by intent. See Oba, 448 F.2d at 894. Under the mixed conviction
30
standard, courts will typically not consider the possessor’s intent if the component
parts at issue are clearly designed to be converted into a destructive device. See,
e.g., Tankersley, 492 F.2d at 967. Even assuming that the parts at issue were not
objectively designed to be combined into “destructive devices,” taking Borne’s intent
into consideration establishes that the component parts were intended to be
converted into “destructive devices” under subsection 5845(f)(3).
Under the mixed conviction standard, the possessor’s intent to detonate the
device at issue and destroy property of others is sufficient to establish that the parts
were intended to be used as a “destructive device” under subsection 5845(f)(3). In
United States v. Oba, the court found that a combination of a fuse, seven sticks of
dynamite, and blasting caps constituted a destructive device under subsection
5845(f)(3) because the appellant had expressed the intent to detonate the device in a
city and destroy the property of others. 448 F.2d at 894. The court reasoned that the
appellant’s transferring that device to others with instructions to complete that task
did not change its ultimate holding. See id. at 894.
Here, the Fourteenth Circuit properly held that the combinations of a 3D
gun design and filament formula, and a plastic cylinder, matches, and hairspray,
when combined with Borne’s intent, constituted “destructive devices” under
subsection (3). Like the appellant in Oba, who expressed the intent to detonate a
device in a city and destroy the property of others, 448 F.2d at 894, Borne had
earlier expressed the wish to blow up guns in a tweet. R. at 18. Because the
component parts at issue included a 3D gun design and other materials that could
31
be used to make a bomb, R. at 18, it can be inferred that Borne intended to use the
materials to construct and ultimately use an explosive device. As such, the
component parts at issue, when combined with Borne’s previously expressed desire
to blow up guns, are a “destructive device” under subsection 5845(f)(3). Borne’s
intent to transfer the component parts at issue to someone else, R. at 20, does not
change this fact. See Oba, 448 F.2d at 894.
Even assuming that Borne’s only motive in possessing and transferring the
parts to Allen and Dixie Millions was to impress her role model, the court could
then consider Allen and Dixie Millions’ motives in determining whether the
combinations of parts were “destructive devices” under subsection 5845(f)(3). R. at
20. In that regard, the State Department has labeled Dixie Millions an FTO. R. at 5.
Further, Dixie Millions is responsible for numerous hacks, hack attempts, and
documents dumps that have had an even more destructive effect on the security,
health, and welfare of others than devices such as pipe bombs because those actions
reached deeply into people’s private lives. R. at 5.
As history has shown, even people with “good” motives can cause grave
security threats when they provide hostile countries or organizations with valuable
military secrets.2 The American and British scientists who provided the Soviet
Union with the atomic bomb secrets are a vivid example of this. See id. Mr. Triton,
an experienced chemical engineer who had previously worked for a major American
arms manufacturer, believed that the some of the parts at issue were extremely
See Marian Smith Holmes, Spies Who Spilled Atomic Bomb Secrets, THE SMITHSONIAN (April 19,
2009), http://www.smithsonianmag.com/history/spies-who-spilled-atomic-bomb-secrets127922660/?no-ist.
2
32
valuable. R. at 7. Thus, these parts constituted technological designs at the
forefront of modern weaponry, which could be used to a devastating effect if allowed
to fall into the hands of hostile countries or organizations with malicious motives.
In conclusion, Borne was properly charged under subsection 5845(f)(3) for
designing and fabricating the 3D gun and plastic filament formula, and for
possessing hairspray, matches, a 3D-printed cylinder, and other items. Objectively,
these items were both designed and intended to be converted into an explosive
device because the testimony at trial established that the respective parts could be
readily assembled into an explosive device, and Borne had previously expressed her
intent to blow up guns. R. at 18. Further, because the evidence deduced at trial
must be viewed in the light most favorable to the government and credibility
determinations must be made in the government’s favor, Keller, 916 F.2d at 632,
the parts at issue constitute a “destructive device” under subsection 5845(f)(3).
II.
THE COURT OF APPEALS PROPERLY UPHELD MS. BORNE’S CONVICTION UNDER
18 U.S.C. § 2339B FOR ATTEMPTING TO PROVIDE “MATERIAL SUPPORT AND
RESOURCES” TO MEMBERS OF A FOREIGN TERRORIST ORGANIZATION.
Enacted in 1996, the Antiterrorism and Effective Death Penalty Act (the Act)
attempted to eradicate fundraising for FTOs. See Pub. L. No. 104-132, 110 Stat.
1214 (codified at 18 U.S.C. § 2339B). Section 2339B of the Act makes it illegal to
“knowingly provid[e] material support or resources to a foreign terrorist
organization, or attempt or conspire to do so.” § 2339B. As amended, § 2339B
defines “material support” in relevant part to mean “any property, tangible or
intangible, or service, including . . . training, expert advice or assistance . . .
33
weapons, lethal substances, explosives, personnel (1 or more individuals who may
be or include oneself).” § 2339A(b)(1); see also § 2339B(g)(4). The Secretary of State
is authorized to designate a foreign organization as a “foreign terrorist
organization” upon finding that it “threatens the security of United States nationals
or the national security of the United States” by engaging in “terrorist activity” or
“terrorism.” 8 U.S.C. §§ 1189(a)(1), (d)(4).
The Fourteenth Circuit properly upheld Borne’s conviction under § 2339B for
attempting to provide “material support and resources” to Dixie Millions, a
designated FTO. First, Borne has failed to show that § 2339B is unconstitutional
based on facial overbreadth. Second, § 2339B, by prohibiting the activities at issue,
did not infringe on Borne’s First Amendment freedom of speech. Third, as applied to
Borne’s conduct, § 2339B does not violate her First Amendment freedom of
association. Fourth, § 2339B is not unconstitutional based on facial vagueness or asapplied to Borne’s conduct. Finally, the government provided sufficient evidence
that Borne’s conduct constituted an attempt to materially support Dixie Millions, a
designated FTO.
A. The Fourteenth Circuit Correctly Held that
Unconstitutional Based on Facial Overbreadth.
§
2339B
is
not
The second issue granted certiorari involves several constitutional challenges
to § 2339B. R. at 21. These include First Amendment overbreadth, freedom of
speech, and freedom of association, and Fifth Amendment vagueness challenges.
These challenges implicate a statute’s constitutionality and interpretation, which
receive de novo review. United States v. Pettus, 303 F.3d 480, 483 (2d Cir. 2002).
34
A facial overbreadth challenge implicates the First Amendment’s protection
of freedom of speech. See Humanitarian Law Project, 561 U.S. at 18‒19. A statute is
unconstitutionally overbroad when it “punishes a substantial amount of protected
free speech, judged in relation to [its] plainly legitimate sweep.” Virginia v. Hicks,
539 U.S. 113, 118‒19 (2003). Because a facial overbreadth finding invalidates the
entire statute, id. at 119, this Court has deemed such relief “strong medicine,” and
granted
it
only
where
the
challenging
party
demonstrates
“substantial
infringement” of speech. United States v. Williams, 553 U.S. 285, 292 (2008).
Here, the Fourteenth Circuit properly held that § 2339B is not facially
overbroad. Section 2339B does not substantially infringe on speech because under
the statute, persons are free to “say anything they wish on any topic,” including
terrorism. Humanitarian Law Project, 561 U.S. at 24. As such, the statute does not
forbid mere membership in an organization or association with a group. Id. at 26.
Rather, it only prohibits providing “material support” to certain types of
organizations. As this Court held in Humanitarian Law Project, the “material
support” prohibited by the statute rarely takes the form of speech. Id. Further,
where the statute actually infringes on speech, it is narrowly tailored to only affect
speech “under the direction of, or in coordination with foreign groups the speaker
knows to be terrorist organizations.” Id. As such, Humanitarian Law Project
adequately disposes of Borne’s facial overbreadth challenge.
35
B. The Fourteenth Circuit Correctly Held that § 2339B, as Applied to Borne’s
Activities, does not Violate her Freedom of Speech Guaranteed by the
First Amendment.
The level of scrutiny applicable to Borne’s First Amendment freedom of
speech claim was decided in Humanitarian Law Project, which held that the
standard is “more demanding” than intermediate scrutiny, but less demanding than
strict scrutiny. See Humanitarian Law Project, 561 U.S. at 26‒28. Thus, any
reliance by Borne on Brandenburg v. Ohio, 395 U.S. 444 (1969), for the correct
standard is misplaced. Humanitarian Law Project disposed of a similar challenge to
§ 2339B and the majority failed to even mention Brandenburg, which strongly
suggests that case is inapplicable here. 561 U.S. at 26‒28.
Under the Humanitarian Law Project standard, this Court has recognized
that the Government’s interest in enforcing § 2339B is combating terrorism, which
is “an urgent objective of the highest order.” Id. at 28. This Court has deferred to
the Executive Branch and Congress’s determination that providing FTOs with any
material support furthers terrorism. Id. at 31. Providing material support to an
FTO can inhibit alliances and undermine international cooperation to thwart
terrorist attacks. Id. at 32. The Executive Branch, not the courts, is briefed daily on
the country’s national security threats. Boumediene v. Bush, 553 U.S. 723, 797
(2008). These threats often include “evolving threats in an area where information
can be difficult to obtain and the impact of certain conduct difficult to assess.”
Humanitarian Law Project, 561 U.S. at 34. As such, the government “is not
36
required to conclusively link all the pieces in the puzzle” to obtain deference from
the Court. Id. at 35.
Given the important national security interests at stake, this Court has
recognized that Congress acted reasonably when, in enacting § 2339B, it outlawed
“any contribution” to FTOs. Id. at 29. It is immaterial that the support at issue was
allegedly only meant to promote peaceable, lawful conduct, because money and
other resources are fungible, and can still “further terrorism by foreign groups in
multiple ways.” Id. at 30‒31. These include freeing up resources to pursue violent
ends and lending legitimacy to the group. Id. at 30. This, in turn, may facilitate the
group’s recruitment and fundraising efforts. Id. The material support prohibited by
§ 2339B, however, must be “coordinated with or under the direction of a designated
foreign terrorist organization. Id. at 31. Independent advocacy to promote a foreign
terrorist organization is not covered by § 2339B. Id.
Applying this standard, this Court found in Humanitarian Law Project that
the government’s interest in preventing terrorism outweighed the plaintiff’s
training FTO members how to use international entities to reach peaceful
resolutions of conflicts. Id. at 36‒37. This Court reasoned that an FTO could use
those skills to buy recovery time from setbacks and prepare for renewed attacks. Id.
at 37. Additionally, the government could lawfully prohibit the plaintiffs from
teaching FTO members how to petition international bodies for relief, because the
relief at issue could include monetary aid, which the FTO could use for violent
activities. Id.
37
Here, the Fourteenth Circuit correctly held that Borne’s prosecution under §
2339B for attempting to provide computer code, plastic filament formula, and 3D
gun plans to Allen and Dixie Millions did not violate her freedom of speech rights.
Similar Humanitarian Law Project’s facts, Borne’s providing this information to
Dixie Millions presents the real possibility of inhibiting alliances and undermining
international cooperation to thwart terrorist attacks. Id. at 32. Dixie Millions is
already believed responsible for numerous hacks and hack attempts on U.S.
government and business interests around the globe. R. at 5. Further, Allen and
Dixie Millions have released millions of sensitive security information obtained
illegally from the NSA. R. at 5. These actions have already frayed U.S.-Azran
relations, and Dixie Millions compounded this by releasing embarrassing
information concerning alleged private recordings of Azranian government officials
by U.S. officials. R. at 6.
The government interest at stake here is even greater than that in
Humanitarian Law Project. Here, the material that Borne attempted to provide to
Allen and Dixie Millions consisted of sophisticated weapons technology described as
“extremely valuable” by a former U.S. weapons engineer. R. at 9. Thus, the
materials at issue constitutes “evolving threats in an area where information can be
difficult to obtain and the impact of certain conduct difficult to assess.”
Humanitarian Law Project, 561 U.S. at 34. While in Humanitarian Law Project the
FTO could only use the material support at issue to buy time or obtain relief from
international bodies, here Dixie Millions could have used the 3D gun plans,
38
computer code, and plastic filament formula to mass-produce sophisticated weapons
technology for use by itself or to sell to others with potentially hostile motives. R. at
18.
Further, any lawful or peaceful motives on Borne’s part are immaterial. In
Humanitarian Law Project, this Court noted that a person’s motives in providing
the support are not important, as money and other resources are fungible, and such
support can still “further terrorism by foreign groups in multiple ways.” Id. at
30‒31. These include freeing up resources to pursue violent ends and increasing the
group’s legitimacy. Id. at 30. This, in turn, may facilitate the group’s recruitment
and fundraising efforts. Id. Dixie Millions’ own recruitment strategy exemplifies
this; they promoted their members as “White Hat Hackers” who only targeted
“malicious government and corporate lies,” despite the fact that their document
dumps put U.S. security interests in grave risk of harm. R. at 5, 6, 17.
Borne’s providing Allen with computer code, plastic filament formula, and 3D
gun plans would further legitimize Dixie Million’s profile as a tech-savvy entity at
the forefront of hacking and aid its recruitment efforts. Borne’s good intentions
would only further these ends, by encouraging other impressionable youth to believe
that joining Dixie Millions is morally right. In fact, evidence offered at trial shows
that Dixie Millions already achieved considerable success in this regard at the
Harrisburg High School where Borne attended. R. at 17. FBI testimony showed that
students of Ms. Ascot, an alleged Dixie Millions partner, were suspected of
numerous hacks. R. at 17. In fact, at the time of Borne’s arrest, the FBI had
39
information that Allen had an associate operating in the same town where Borne
resided. R. at 17. Thus, Borne’s good intentions fail to override the government’s
interest in denying Dixie Millions the legitimacy, recruitment, and funding it needs
to continue its mission of hacking government and business interests.
Finally, any claim by petitioner that her actions were not coordinated with or
occurred under the direction of Dixie Millions is unfounded. Borne was not
prosecuted under § 2339B for attempting to perform hacking activities that
coincidentally happened to further Dixie Million’s goals. R. at 17. Rather, Borne was
prosecuted for attempting to offer her services, expertise, and knowledge to Allen
and Dixie Millions. R. at 17. Borne was well-aware of Dixie Million’s illegal
activities through Dixie Millions’ own notoriety and her association and mentorship
with Ascot, R. at 7, who the FBI is almost certain is one of Dixie Millions’ leaders.
R. at 17. Thus, any allegation by Borne that her actions were done independently of
Dixie Millions is unfounded.
Further, the nature of terrorist organizations’ methods of operation in today’s
world, and Dixie Million’s own organizational structure, suggest that this Court
resist adopting a more formal definition of “coordination and direction” so as to
require actual or more formal membership in an FTO. The reality in today’s world
is that members of terrorist organizations are no longer connected physically and
geographically, but rather maintain communications through mediums such as the
40
internet and cyberspace.3 Using cyberspace mediums, terrorist organizations can
instantly activate and use seemingly independent actors as “hacktivists” to commit
destructive crimes. Id. at 407. The existence of ISIS “sleeper cells” in the United
States makes the threat posed by people linked to terrorist organizations readily
apparent, even though these people may be “unofficial” members. 4
The record shows that Dixie Millions operated in this very manner. R. at 6.
Dixie Millions’ writings show that the group’s primary goal is to use their leaders as
role models and have others follow in their footsteps by hacking entities and
revealing sensitive security information. R. at 6, 11. As discussed above, Dixie
Millions has been particularly successful in this area already. R. at 17.
In conclusion, the Fourteenth Circuit correctly found that Borne’s conviction
under § 2339B did not violate her freedom of speech rights. Borne’s attempt to
provide computer code, 3D gun plans, and plastic cylinder formula to Allen and
Dixie Millions directly implicated national security because of Dixie Millions’ role in
orchestrating numerous hacks and document dumps of government agencies.
Further, Borne’s intended trip and stay in Azran had the real possibility of
disrupting relations between the United States and Azran, and inhibiting
international coordination of the fight against terrorism. Finally, any allegation by
Borne that she acted independently or had pure motives fails to overcome the
See Laurie R. Blank, International Law and Cyber Threats from Non-State Actors, 89 INT’L L.
STUD. 406, 406 (2013) (discussing the increasing prevalence of cyber-war and cyber-threats posed by
organizations and civilians).
4
See Cathy Burke, Ex-Cia Officer: “There are ISIS Sleeper Cells in this Country,” NEWSMAX (Aug.
21, 2014, 8:23 PM), http://www.newsmax.com/Newsfront/cia-officer-isissleeper/2014/08/21/id/590228/.
3
41
government’s interest at stake because her activities would lend legitimacy to Dixie
Millions and facilitate its recruitment and fundraising efforts.
C. The Fourteenth Circuit Correctly Held that § 2339B does not
Unconstitutionally Infringe on Borne’s First Amendment Freedom of
Association Rights.
Any claim by Borne based on First Amendment freedom of association
grounds is foreclosed by this Court’s decision in Humanitarian Law Project, 561
U.S. at 39‒40. Section 2339B does not infringe on Borne’s First Amendment
freedom of association because it does not prohibit mere association with an FTO.
Id. at 39. Rather, it prohibits providing material support to such an organization.
Id. And there is no First Amendment right to facilitate terrorism by providing
material support to an FTO. See 18 U.S.C. § 2339B(h). Thus, any of this Court’s
decisions reviewing statutes penalizing association based on membership in a group
or espousal of the views of a group are inapplicable here. Humanitarian Law
Project, 561 U.S. at 39.
D. The Fourteenth Circuit Correctly Held that § 2339B is not
Unconstitutionally Vague on its Face or as Applied to the Facts at Issue.
Facial challenges to § 2339B based on inherent vagueness of that section’s
terms are likewise foreclosed by Humanitarian Law Project. In that case, this Court
upheld § 2339B because its terms did not require “wholly subjective judgments
without statutory definitions.” See id. at 20. Additionally, this Court noted that
Congress increased the clarity of the terms at issue by narrowing their definitions
and adding a knowledge requirement, which further reduced the terms’ inherent
vagueness. See id.
42
At any rate, this Court has preferred reviewing vagueness challenges not as
facial challenges, but as applied to the facts of the case. See Chapman v. United
States, 500 U.S. 435, 467 (1991); Williams, 553 U.S. at 304. This Court’s preference
for as-applied review is based on “traditional rules governing constitutional
adjudication”; where the statute may be constitutionally applied to a person, that
person should not be able to challenge the statute on the grounds that it could be
unconstitutionally applied to others. Broadrick v. Oklahoma, 413 U.S. 601, 610
(1973).
Further, even where this Court has allowed facial challenges, the test is
similar to the as-applied analysis. Village of Hoffman Estates v. Flipside Hoffman
Estates, Inc., 455 U.S. 489, 497 (1982). As a practical matter, the Hoffman Estates
rule allows for facial analysis only in preenforcement challenges. Hoffman Estates,
455 U.S. at 495. Thus, because Borne has already been convicted for specific
conduct under § 2339B, Hoffman Estates warrants that a court focus on the
statutory proscriptions as applied to her conduct. Id.
Under an as-applied analysis, a conviction violates due process if the statute
providing for the conviction “fails to provide a person of ordinary intelligence fair
notice of what is prohibited, or is so standardless that it authorizes or encourages
seriously discriminatory enforcement.” Williams, 553 U.S. at 304. When a statute
infringes on free speech or association rights, courts conduct a more stringent
vagueness test. Hoffman Estates, 455 U.S. at 499. However, even when reviewing
statutes that regulate expressive conduct, courts have never required “perfect
43
clarity and precise guidance.” Ward v. Rock Against Racism, 491 U.S. 781, 794
(1989).
Under the notice test, due process requires only that the statutory language
“conveys sufficiently definite warning as to the proscribed conduct when measured
by common understanding and practices.” Jordan v. DeGeorge, 341 U.S. 223,
231‒32 (1951). If the statute provides notice to the defendant of her conduct’s
criminality, the statute may not be attacked based on failure to give fair warning to
conduct of others not at issue. See Parker v. Levy, 417 U.S. 733, 756 (1974).
Conversely, under the arbitrary enforcement test, the statute must provide
“sufficiently clear standards,” unless “the conduct at issue falls within the core of
the statute’s prohibition.” Farrell v. Burke, 449 F.3d 470, 494 (2d Cir. 2006).
In deciding whether § 2339B’s statutory terms conveyed sufficient notice of
the proscribed conduct, it is necessary first to consider the statutory text at issue.
Congress defined the terms at issue in § 2339A. Under § 2339B, “‘training’ means
instruction or teaching designed to impart a specific skill, as opposed to general
knowledge.” § 2339A(b)(2). Humanitarian Law Project held that “instruction on
resolving disputes through international law” and training members of an FTO how
to petition international bodies for relief constituted “training” because a person of
ordinary intelligence would readily understand such training and instruction
conveyed a specific skill, not general knowledge. 561 U.S. at 22.
Congress also defined the terms “expert advice and assistance,” “personnel,”
and “services” in the statute. “‘Expert advice or assistance’ means advice or
44
assistance derived from scientific, technical, or other specialized knowledge.” §
2339A(b)(3). Humanitarian Law Project held that instruction on relief application
and dispute resolution constituted “expert advice and assistance” because it
“derived from ‘specialized knowledge.’” See id. (quoting § 2339A(b)(3)). “Personnel”
is defined as knowingly furnishing a person, including oneself, “to work under that
terrorist organization’s control or to organize, manage, supervise, or otherwise
direct the operation of that organization.” § 2339B(h). However, those acting
independently of the organization at issue are not considered “personnel” under the
statute. Id. In United States v. Farhane, the Second Circuit held that the
defendant’s offering to serve as an on-call doctor for Al-Qaeda constituted providing
“personnel” under the statute. 634 F.3d 127, 140‒41 (2011). Finally, “service”
likewise refers to “concerted activity, not independent advocacy.” Humanitarian
Law Project, 561 U.S. at 24. Thus, a person must provide service “ to a foreign
terrorist organization,” such that there is some connection between the service and
the FTO. See id. (emphasis in original).
Here, Borne’s attempted actions readily constitute “training,” “expert advice
and assistance,” “personnel,” and “service” under § 2339B, such that a person of
“ordinary intelligence” would only need a “common understanding” to realize that
those activities fell under the proscriptions of § 2339B. See DeGeorge, 341 U.S. at
232. First, with regard to “training,” Borne intended to meet Dixie Millions
members to illustrate her coding and data collection abilities so Dixie Millions could
“exploit bank, financial, and government security flaws” to “reveal malicious
45
corporate and government lies.” R. at 12, 17. In Humanitarian Law Project, this
Court held that “instruction on resolving disputes through international law” and
training FTO members how to petition international bodies for relief constituted
“training” because a person of ordinary intelligence would readily understand that
such training and instruction conveyed a specific skill, not general knowledge. 561
U.S. at 22.
Similarly, Borne’s teaching hacker groups how to use computer coding and
data collection to exploit security flaws in organizations to reveal corporate and
government secrets, R. at 12, 17, conveys a specific skill and not generalized
knowledge. As evidenced by the extensive mentoring that Borne underwent to
master computer programming, R. at 3‒4, training a person how to hack into
computer security systems imparts specific skills and is not considered general
knowledge. Additionally, Dixie Millions’ history of using hacking to subvert the law,
infiltrate United States government agencies and corporations, and reveal sensitive
security information is well-known. R. at 5. As such, it is clear that training in how
to use computer coding and data collection to exploit security flaws is precisely the
type of training that would constitute material support of Dixie Millions under §
2339B.
Second, Borne’s attempt to teach hacker groups how to infiltrate government
and corporate organizations through security flaws to reveal sensitive information,
R. at 17, constituted “expert advice and assistance” under § 2339B. In
Humanitarian Law Project, this Court held that instruction on relief application
46
and dispute resolution constituted “expert advice and assistance” because it
“derived from ‘specialized knowledge.’” 561 U.S. at 22 (quoting § 2339A(b)(3)).
Similarly, Borne’s teaching coding and data collection techniques to allow hackers
to exploit government and business security flaws to reveal secrets, R. at 12, 17,
derives from specialized knowledge that she gained from several months of
mentorship by Ascot, an expert computer programmer. R. at 3‒4. Borne’s
youthfulness does not discount this fact, because today’s youth are at the forefront
of technological advances in hacking.5 Thus, any person of ordinary intelligence,
with a general awareness of Dixie Millions’ notoriety as a “hacktivist” group would
realize that providing hacker groups with information on how to infiltrate
government and corporate organizations through security flaws falls within §
2339B’s prohibition of providing “expert advice and assistance.”
Third, Borne’s attempt to travel to Azran to meet with Dixie Millions
members and Allen readily falls under the provision of “personnel” and “service.”
The statutory definition of “personnel” includes providing oneself to work under the
control of the organization at issue. § 2339B(h). Both terms require concerted, not
independent activity. Humanitarian Law Project, 561 U.S. at 24. In United States
v. Farhane, the Second Circuit held that the defendant’s offering to serve as an oncall doctor for Al-Qaeda constituted providing “personnel” under the statute. 634
F.3d at 140‒41. Similarly, Borne’s desire to provide computer code, the perfect
See Kriyana Reddy, ‘Hack Culture’ Can be Criminal, But Also Enlightening , THE LEDGER.COM
(October 25, 2015, 12:01 AM),
http://www.theledger.com/article/20151025/COLUMNISTS0427/151029
766/0/search (discussing how hacking is “becoming increasingly popular among teens”).
5
47
cylinder, and the filament formula to Allen and Dixie Millions, R. at 12, defeats any
suggestion that she lacked notice that her conduct was unlawful. Borne was wellaware of Dixie Millions’ illegal activities. R. at 7. Thus, any allegation that Borne’s
actions were done independently of Dixie Millions is unfounded. No reasonable
person with a common understanding of Dixie Millions’ method of operation and the
cyber threats posed by terrorist organizations today could doubt that Borne’s
attempting to provide Dixie Millions with computer code and materials to develop
ground-breaking weapons technology fell under § 2339B’s prohibitions.
Further, § 2339B’s proscriptions do not grant too much enforcement
discretion. First, as this Court held in Humanitarian Law Project, § 2339B’s terms
do not allow for “wholly subjective judgment” by law enforcement personnel, and
Congress has sufficiently narrowed the definitions of the terms at issue. 561 U.S. at
20. Second, because Borne’s activities, whether viewed as “training,” “expert advice
and assistance,” “personnel,” or “service,” fall so readily into the core of § 2339B’s
prohibition, Borne’s prosecution under this statute could not have been the result of
arbitrary law enforcement. See Farrell, 449 F.3d at 494.
To summarize, the Fourteenth Circuit correctly held that § 2339B is not
unconstitutionally vague on its face or as applied to the facts of this case.
Humanitarian Law Project foreclosed the argument that § 2339B is facially vague,
holding that § 2339B’s terms do not require “wholly subjective judgments without
statutory
definitions” and
that
Congress’s
narrowing
definitions provided
reasonable notice to an ordinary person as to what conduct that section prohibits.
48
See id. at 20. Further, the statutory terms at issue are not unconstitutionally vague
as applied to this case’s facts. Borne’s attempt to provide Dixie Millions with
computer code and materials to develop innovative weapons technology, whether
viewed as training, expert advice, personnel, or services, fall squarely under §
2339B’s prohibitions. Any person of ordinary intelligence would readily find that
such activities constitute “material support” under the statute, and Borne’s
prosecution under this statute could not have been arbitrary.
E. The Fourteenth Circuit Correctly Held that Sufficient Evidence Existed to
Convict Borne under § 2339B for Attempting to Provide “Material
Support” to a foreign terrorist organization.
The Due Process Clause prohibits a conviction unless the government
provides “proof beyond a reasonable doubt of every fact necessary to constitute the
crime . . . charged.” In re Winship, 397 U.S. 358, 364 (1970). A defendant’s burden
in raising a sufficiency of the evidence challenge is particularly heavy because a
reviewing court must give every benefit of the doubt to the government, and uphold
the conviction if “any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979). The Court must analyze the evidence as a whole, and not in isolated pieces.
United States v. Miller, 116 F.3d 641, 676 (2d Cir. 1997). Claims based on
sufficiency of the evidence are reviewed de novo. United States v. Geibel, 369 F.3d
682, 689 (2d Cir. 2004).
Section 2339B prohibits both “knowingly providing material support or
resources to a foreign terrorist organization,” and any “attempt . . . to do so.” 18
49
U.S.C. § 2339B. Under § 2339B, “material support” constitutes “any property,
tangible or intangible, or service, including . . . training, expert advice or assistance,
. . . weapons, lethal substances, explosives, [or] personnel (1 or more individuals
who may be or include oneself).” § 2339A(b)(1); see also § 2339B(g)(4). A defendant
is guilty of attempt if the government establishes that the defendant “(a) had the
intent to commit the object crime and (b) engaged in conduct amounting to a
substantial step towards its commission.” Farhane, 634 F.3d at 145 (citing United
States v. Yousef, 327 F.3d 56, 134 (2d Cir. 2003)).
United States v. Mehanna sheds light on the amount and type of evidence
sufficient to establish a conviction under Section 2339B. 735 F.3d 32 (1st Cir. 2013).
There, the First Circuit held that sufficient evidence existed under Section 2339B
where the defendant expressed interest in and researched jihad training camps in
Yemen, believed it was his duty to wage jihad, rabidly supported Al-Qaeda and
Osama Bin Laden, and voiced his desire to fight the U.S. Id. at 44‒45. The
defendant’s insistence that he traveled to Yemen only to study Islam there was
insufficient to overcome the government’s other evidence. Id. at 47.
Here, sufficient evidence existed to convict Borne under § 2339B for
attempting to provide material support to Dixie Millions. First, it is undisputed that
Dixie Millions has been validly labeled an FTO by the federal government. R. at 5.
It can also readily be inferred that Borne was aware of Dixie Millions’ designation
as such based on her knowledge of Dixie Millions and her association with Ascot, an
alleged Dixie Millions leader. R. at 8, 11.
50
Second, sufficient evidence existed that Borne intended to provide material
support to Dixie Millions. In a conversation with Ascot, Borne asked Ascot what she
thought about Dixie Millions. R. at 8. Ascot responded that Dixie Millions could be
helped by a “good hacker” who would “expose ‘flaws and frauds.’” R. at 8. Later in
that conversation, Ascot stated how she hoped that Dixie Millions’ “White Hat
Hackers” would be able to make “people realize all the good Dixie Millions was
doing in the world.” R. at 8.
Shortly thereafter, Borne readily assented to filling the role described by
Ascot. R. at 11. Like the Mehanna defendant, who expressed interest in joining AlQaeda, 735 F.3d at 44, Borne explicitly admitted she wanted to become a “White
Hat Hacker,” R. at 11, a term commonly associated with Dixie Millions members. R.
at 8. Borne also showed no reservations about using her expertise and projects to
support Dixie Millions by packing these items to bring them to Allen’s attention. R.
at 12. She was eager to teach hacker groups how to infiltrate government and
corporate organizations through security flaws to reveal sensitive information. R. at
17.
Further, like the Mehanna defendant, who displayed loyalty and allegiance to
Osama Bin Laden, 735 F.3d at 44, Borne expressed her loyalty to Allen, the Dixie
Millions leader. R. at 11. Borne viewed him as a role model and regularly visited
websites depicting him as a folk hero. R. at 11. She also used the Darknet, which is
generally used by hacktivist groups to subvert the law, to search for information on
Allen. R. at 5, 11. Immediately after traveling to Azran, Borne intended to find
51
Allen, meet with him, and convince him to mentor her in her chosen career path of
becoming a “White Hat Hacker.” R. at 11‒12.
Borne’s apparent benign intent for traveling to Azran to participate in
Technical Promise fails to show that a reasonable jury could not convict Borne on
the trial record. In Mehanna, the defendant’s insistence that his Yemen travels
were for instructional purposes was insufficient to overcome the government’s other
evidence. 735 F.3d at 47. Likewise, any allegation of the same here fails to establish
that no reasonable jury could have believed that Borne’s support for Dixie Millions
and her intent to travel to Azran to meet with Allen and demonstrate her hacker
credentials, R. at 11‒12, justifies her § 2339B conviction.
Third, sufficient evidence existed that Borne’s conduct constituted a
substantial step towards the provision of material support in the form of personnel,
training, expert advice and assistance, and services. Under this inquiry, a
substantial step towards the provision of material support only needs to be planned
to culminate in support for an FTO. See Farhane, 634 F.3d at 148. It is immaterial
if this support is intended to be benign and not harmful. See id.
Like the Mehanna defendant, who researched Al-Qaeda training camps
before traveling to Yemen, Borne had already prepared meticulously to meet Allen,
provide him with the computer code, perfect cylinder, and filament formula, and
convince him to mentor her. R. at 11, 12. Based on extensive research, Borne had
created a spreadsheet listing every location where Allen had been spotted and each
disguise he had used. R. at 11, 12. From this spreadsheet, Borne had pinpointed the
52
exact location, date, and time where she would meet Allen. Further, Borne entered
a reminder into her smartphone, labeling the entry “Meet Clive Allen at Café.” R. at
12. All of these materials were already packed in Borne’s luggage or in the car in
which she rode to the airport. Ultimately, the only reason that Borne never
succeeded was because she was apprehended one day before her meeting with
Allen, two miles from the airport, where her Azran flight awaited her. R. at 12‒13.
Thus, a reasonable jury could find that Borne’s conduct constituted a substantial
step to providing material support to Dixie Millions.
In summary, Borne was properly convicted under § 2339B for attempting to
provide material support and resources to an FTO. Borne’s constitutional attacks on
§ 2339B based on First Amendment facial overbreadth and vagueness fail because
Humanitarian Law Project effectively forecloses those claims. Further, Borne’s asapplied vagueness challenge fails because a person of ordinary intelligence with
knowledge about Dixie Million’s nature and activities would readily realize that
Borne’s conduct was proscribed by § 2339B. Additionally, Borne has not shown that
her conviction under § 2339B infringes her freedoms of speech and association
under the First Amendment because the government’s interest in protecting
national security and preventing any support of terrorist organizations overrides
Borne’s interest in providing material support to Dixie Millions. Finally, the
evidence readily supports the fact that Borne’s conduct constituted an attempt to
materially support Dixie Millions.
53
CONCLUSION
For the foregoing reasons, the United States respectfully requests that this
Court AFFIRM the decision of the Fourteenth Circuit Court of Appeals.
Dated: November 23, 2015
Respectfully submitted,
________________________
TEAM 18
ATTORNEYS FOR RESPONDENT
54
APPENDIX TABLE OF CONTENTS
APPENDIX “A”: 26 U.S.C. § 5845(f) ............................................................................ A
APPENDIX “B”: 18 U.S.C.A. § 2339B ........................................................................... B
APPENDIX “A”
26 U.S.C.A. § 5845(f)
§ 5845. Definitions
Currentness
For the purpose of this chapter-(f) Destructive device.--The term “destructive device” means (1) any explosive,
incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellent
charge of more than four ounces, (D) missile having an explosive or incendiary
charge of more than one-quarter ounce, (E) mine, or (F) similar device; (2) any type
of weapon by whatever name known which will, or which may be readily converted
to, expel a projectile by the action of an explosive or other propellant, the barrel or
barrels of which have a bore of more than one-half inch in diameter, except a
shotgun or shotgun shell which the Secretary finds is generally recognized as
particularly suitable for sporting purposes; and (3) any combination of parts either
designed or intended for use in converting any device into a destructive device as
defined in subparagraphs (1) and (2) and from which a destructive device may be
readily assembled. The term “destructive device” shall not include any device which
is neither designed nor redesigned for use as a weapon; any device, although
originally designed for use as a weapon, which is redesigned for use as a signaling,
pyrotechnic, line throwing, safety, or similar device; surplus ordnance sold, loaned,
or given by the Secretary of the Army pursuant to the provisions of section 4684(2),
4685, or 4686 of Title 10 of the United States Code; or any other device which the
Secretary finds is not likely to be used as a weapon, or is an antique or is a rifle
which the owner intends to use solely for sporting purposes.
A
APPENDIX “B”
18 U.S.C.A. § 2339B
§ 2339B. Providing material support or resources to designated foreign terrorist
organizations
Currentness
(a) Prohibited activities.
(1) Unlawful conduct. ―Whoever knowingly provides material support or resources
to a foreign terrorist organization, or attempts or conspires to do so, shall be fined
under this title or imprisoned not more than 20 years, or both, and, if the death of
any person results, shall be imprisoned for any term of years or for life. To violate
this paragraph, a person must have knowledge that the organization is a designated
terrorist organization (as defined in subsection (g)(6)), that the organization has
engaged or engages in terrorist activity (as defined in section 212(a)(3)(B) of the
Immigration and Nationality Act), or that the organization has engaged or engages
in terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization
Act, Fiscal Years 1988 and 1989).
B