No. C15-1359-1
In the Supreme Court of the United States
OCTOBER 2015 TERM
___________
Emmaline Borne,
Petitioner,
-VERSUS-
United States of America,
Respondent.
_____________________
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTEENTH CIRCUIT
BRIEF FOR RESPONDENT
Team 46
Counsel for Respondent
QUESTIONS PRESENTED
I.
Whether an individual should be charged under 26 U.S.C. § 5845(f)(3) when
she makes an explosive device by designing and fabricating firearm parts on
a 3D printer.
II.
Whether an individual should be prosecuted under 18 U.S.C. § 2339B after
she plans to meet the leader of a known foreign terrorist organization in
order to demonstrate potentially dangerous computer code to him.
i
TABLE OF CONTENTS
QUESTIONS PRESENTED ............................................................................................i
TABLE OF CONTENTS ................................................................................................ ii
TABLE OF AUTHORITIES ........................................................................................... v
OPINIONS BELOW .................................................................................................... viii
STATUTORY PROVISIONS ...................................................................................... viii
STATEMENT OF JURISDICTION ........................................................................... viii
STATEMENT OF THE CASE ........................................................................................ 1
Material Facts .............................................................................................................. 1
A. Infamous Dixie Millions hacktivist, Clive Allen, releases the National
Security Agency’s confidential information of its domestic monitoring
activities. ................................................................................................................... 1
B. Petitioner meets with her teacher and prepares to study abroad at Allen’s
alma mater in Azran, where Allen remains with grant of asylum. ....................... 3
C. Law enforcement personnel arrest Petitioner upon discovering her explosive
device component and dangerous computer code. .................................................. 6
Procedural History ....................................................................................................... 8
A. Petitioner’s trial and subsequent conviction under 26 U.S.C. § 5845(f)(3) and
18 U.S.C. § 2339B. .................................................................................................... 8
B. Petitioner’s appeal to the United States Court of Appeals for the Fourteenth
Circuit, where both convictions were affirmed. ...................................................... 9
1. The Fourteenth Circuit affirmed Petitioner’s conviction under 26 U.S.C. §
5845(f)(3) based on the mixed standard approach. .......................................... 10
2. The Fourteenth Circuit also affirmed Petitioner’s conviction under 18
U.S.C. § 2339B, denying Petitioner’s First Amendment claims. ................... 11
C. Circuit Judge Morgan’s dissent. ........................................................................ 13
ii
SUMMARY OF THE ARGUMENT.............................................................................. 15
ARGUMENT ................................................................................................................. 17
I.
THE FOURTEENTH CIRCUIT PROPERLY APPLIED THE MIXED
STANDARD OF INTENT UNDER 26 U.S.C. § 5845(f)(3) IN AFFIRMING
PETITIONER’S CONVICTION. ................................................................................. 17
A. The language, structure, and legislative history of § 5845(f)(3) support a
mixed standard of intent. ....................................................................................... 18
B. This Court should adopt the mixed standard of intent, correctly employed by
the Fourteenth Circuit, because it allows for fair and consistent adjudication. .. 21
C. The subjective and objective standards are unworkable and inconsistent with
the purpose of the Gun Control Act. ...................................................................... 25
II.
PETITIONER’S CONVICTION PURSUANT TO 18 U.S.C. § 2339B MUST
BE AFFIRMED BECAUSE SHE PLANNED TO MEET A LEADER OF A KNOWN
FOREIGN TERRORIST ORGANIZATION IN ORDER TO DEMONSTRATE A
POTENTIALLY DANGEROUS COMPUTER CODE TO HIM. ................................. 29
A. Petitioner was correctly convicted under 18 U.S.C. § 2339B because she
knowingly attempted to provide material support to Dixie Millions. .................. 30
1. Petitioner had the requisite knowledge of Dixie Millions’ connection to
terrorism to be convicted under 18 U.S.C. § 2339B. ........................................ 31
2. Petitioner took substantial steps towards providing material support to
Dixie Millions. .................................................................................................... 32
B. Petitioner cannot escape her prosecution and conviction under 18 U.S.C. §
2339B with purported violations of her First Amendment rights. .........................35
1. Respondent has met its burden under a strict scrutiny analysis. .............. 36
2. Section 2339B, as-applied to Petitioner’s actions, does not violate her
Freedom of Association. .................................................................................... 38
C. The material support statute is not impermissibly vague under the Due
Process Clause when applied to Petitioner’s actions. ...................................... 39
1. Section 2339B does not violate the Fifth Amendment because it provides a
person of ordinary intelligence fair notice of its prohibitions. ........................ 40
iii
2. Section 2339B also grants the Government appropriate enforcement
discretion. ........................................................................................................... 41
CONCLUSION .............................................................................................................. 43
APPENDIX A .................................................................................................................. I
APPENDIX B ............................................................................................................... III
APPENDIX C ................................................................................................................. V
iv
TABLE OF AUTHORITIES
United States Supreme Court Cases
Abramski v. United States,
134 S. Ct. 2259 (2014) ........................................................................................ 19
Barrett v. United States,
423 U.S. 212 (1976) ............................................................................................ 17
Brandenburg v. Ohio.
395 U.S. 444 (1969) ............................................................................................ 11
Davis v. Michigan Dep't of Treasury,
489 U.S. 803 (1989) ............................................................................................ 19
Estate of Cowart v. Nicklos Drilling Co.,
505 U.S. 469 (1992) ............................................................................................ 18
Field v. Mans,
516 U.S. 59 (1995) .............................................................................................. 30
Grayned v. City of Rockford,
408 U.S. 104 (1972) ............................................................................................ 39
Gulf States Steel Co. v. United States,
287 U.S. 32 (1932) .............................................................................................. 20
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) ........................................................................................ passim
Kolender v. Lawson,
461 U.S. 352 (1983) ............................................................................................ 41
Landreth Timber Co. v. Landreth,
471 U.S. 681 (1985) ............................................................................................ 18
Lewis v. City of Chicago, Ill.,
560 U.S. 205 (2010) ............................................................................................ 18
Papachristou v. City of Jacksonville,
405 U.S. 156 (1972) ...................................................................................... 41, 42
Staples v. United States,
511 U.S. 600 (1994) ...................................................................................... 13, 28
v
United States v. Resendiz-Ponce,
549 U.S. 102 (2007) ............................................................................................ 30
United States v. Ron Pair Enterprises, Inc.,
489 U.S. 235 (1989) ............................................................................................ 18
United States v. Williams,
553 U.S. 285 (2008) ............................................................................................ 39
United States v. Wise,
370 U.S. 405 (1962) ............................................................................................ 20
United States Court of Appeals Cases
Logan v. U.S. Bank Nat. Ass'n,
722 F.3d 1163 (9th Cir. 2013) ............................................................................ 18
U.S. v. Farhane,
634 F.3d 127 (2d Cir. 2011) .......................................................................... 37, 39
United States v. Fredman,
833 F.2d 837 (9th Cir. 1987) .............................................................................. 22
United States v. Johnson,
152 F.3d 618 (7th Cir. 1998) .................................................................. 19, 21, 22
United States v. Morningstar,
456 F.2d 278 (4th Cir. 1972) ........................................................................ 19, 23
United States v. Oba,
448 F.2d 892 (9th Cir. 1971) ........................................................................ 24, 25
United States v. Posnjak,
457 F.2d 1110 (2d Cir. 1972) .................................................................. 20, 22, 27
United States v. Ross,
458 F.2d 1144 (5th Cir. 1972) ............................................................................ 24
United States v. Spoerke,
568 F.3d 1236 (11th Cir. 2009) .......................................................................... 22
United States v. Urban,
140 F.3d 229 (3d Cir. 1998) .................................................................... 19, 22, 23
vi
United States District Court Cases
Ballew v. United States,
389 F. Supp. 47 (D. Md. 1975) ........................................................................... 22
United States v. Marzook,
383 F. Supp. 2d 1056 (D. Ill. 2005) .............................................................. 42, 43
United States v. Seven Miscellaneous Firearms,
503 F. Supp. 565 (D.D.C. 1980) ......................................................................... 22
United States v. Tomkins,
No. 07 CR 227, 2013 WL 80365 (N.D. Ill. Jan. 4, 2013) ................................... 26
Legislative
26 U.S.C. § 5845(f)(3) ............................................................................................ passim
18 U.S.C.A. § 2339B .............................................................................................. passim
18 U.S.C. § 2339A.................................................................................................... 32, 33
H.R. Rep. No. 1577, 90th Cong., 2nd Sess. 1968, reprinted in 1968 U.S.C.C.A.N.
4410, 4412, 1968 WL 5325 (Conf. Rep.) ....................................................................... 17
S. Rep. 90-1097, S. Rep. No. 1097, 90TH Cong., 2ND Sess. 1968, 1968 U.S.C.C.A.N.
2112, 2114 1968 WL 4956 (Leg. Hist.) ......................................................................... 20
S. Rep. No. 1501, 90th Congress, 2d Sess., P. 533 (1968) ........................................... 21
Secondary Sources
ALI, Model Penal Code § 5.01(1)(c) (1985) ................................................................... 30
Bernadette Schell & Clemens Martin, Webster's New World Hacker Dictionary
(2006) ....................................................................................................................... 31, 32
CLAY WILSON, CONG. RESEARCH SERV., RL32114, Computer Attack and Cyber
Terrorism: Vulnerabilities and Policy Issues for Congress, 4 (2003). .................. 31, 32
vii
OPINIONS BELOW
The opinion of the United States Court of Appeals for the Fourteenth Circuit
is set out in the record. See R. 2-27.
STATUTORY PROVISIONS
A subsection of the Gun Control Act of 1968, also known as Title 1 of the
United States Firearms Law, 26 U.S.C. § 5845(f)(3), is relevant to this case. It is
reprinted in Appendix A.
A section under Title 18 of the United States Code, 18 U.S.C. § 2339B, is also
relevant to this case. It is reprinted in Appendix B.
A second section under Title 18 of the United States Code, 18 U.S.C. § 2339A,
is also relevant to this case. It is reprinted in Appendix C.
STATEMENT OF JURISDICTION
The decision of the United States Court of Appeals for the Fourteenth Circuit
affirmed the decision of the United States District Court for the Central District of
New Tejas, and was entered into on October 1, 2015. R. 2. Petitioner was then
granted writ of certiorari for the October 2015 term. Id. at 1.
jurisdiction over the case pursuant to 28 U.S.C. § 1254.
viii
This Court has
STATEMENT OF THE CASE
Respondent respectfully requests this Court to affirm the decision of the
United States Court of Appeals for the Fourteenth Circuit that affirmed Petitioner’s
prosecution and conviction under 26 U.S.C. § 5845(f)(3) and 18 U.S.C. § 2339B.
These statutes prohibit combining parts together into a destructive device, and the
material support of a terrorist organization, respectively.
Material Facts
A. Infamous Dixie Millions hacktivist, Clive Allen, releases the
National Security Agency’s confidential information of its
domestic monitoring activities.
On November 22, 2011, millions of confidential government documents were
illegally released to the public. R. 5. The culprit was none other than Clive Allen.
Id. Allen was employed by the National Security Agency (“NSA”) in June 2009,
specializing in database design and management. Id.
He applied his unique
knowledge and expertise to create predictive queries and comb through massive
databases to find connections. Id.
Allen was able to illegally release these documents to the Darknet, through
The Onion Router protocol, using his client to “set millions of secrets free.” Id.
Although the Darknet has occasionally been used for legitimate purposes, it is
widely utilized by hacktivists, such as Allen, to circumvent the law. See id. In
releasing these documents, Allen revealed himself as “Millions,” one of the two
ringleaders operating Dixie Millions. Id.
1
In recent years, Dixie Millions has been suspected of—and admittedly
responsible for—a plethora of attacks upon government and business security
systems. Id. Entities ranging from United States agencies to worldwide business
leaders have fallen prey to Dixie Millions’ attacks. Id. The United States Military
Network, the Central Intelligence Agency, the Federal Bureau of Investigation, the
International Monetary Fund, Interpol, and Google are just some of the numerous
targets of these security breaches. Id. The United States Secretary of State has
since declared Dixie Millions a foreign terrorist organization. Id.; see also R. 5, n. 1.
After the release of these confidential government documents, the Secretary
of State also declared Allen a criminal and initiated a nationwide search for his
detainment. R. 5. However, Allen was able to escape the reach of United States law
enforcement for several weeks. Id. Thereafter, Dixie Millions hacked numerous
websites and forced them to display threats from the foreign terrorist organization
implicating further releases of classified information. See R. 5-6. For the next four
months, these threats were consistently reinforced through various releases of
scandalous documents. R. 6.
After months of evading law enforcement, Allen released a video stating that
he had retired and planned to live out his life in the country of Azran. Id.
Predictably, Azran granted Allen asylum. Id. Azran’s official statement included a
stipulation that if a country were to attempt his capture on Azranian soil, it would
be considered an act of war. Id.
Nevertheless, the United States continued its
2
negotiations with Azran for Allen’s arrest and extradition to the United States. See
id.
During discussions between the two countries, the United States learned of
Allen’s release of confidential NSA documents demonstrating the U.S.’s efforts to
record private conversations between the Azranian Ambassador to the United
Nations and the Azranian Prime Minister. Id. The U.S. attempted to strengthen its
leverage in these negotiations by simultaneously searching for Allen’s Dixie
Millions partner, “Dixie.” Id.
However, this search of former associates and
classmates at the University of Misthallery was of no help. Id. The other half of
Dixie Millions remained unfound. Id. The resolution efforts between the countries
ultimately proved unsuccessful, and Allen remains in Azran. Id.
B. Petitioner meets with her teacher and prepares to study abroad
at Allen’s alma mater in Azran, where Allen remains with grant
of asylum.
Also during 2011, Petitioner grew closer to her physics teacher, Mrs. Ascot.
See R. 2-4, 7-9. Petitioner wished to learn more about the study abroad program,
“Technical Promise.” See R. 2-4.
The program was pioneered as an initiative
between New Tejas University and Allen’s alma mater at the University of
Misthallery in Azran. R. 2-3. Importantly, the program was to run from June to
August 2012—soon after the latest documentation of Allen’s whereabouts in Azran.
R. 5.
The program allowed a graduating high school student to earn six college
science credits before freshman year, R. 2, so Petitioner sought the uniquely useful
3
advice of Ascot. R. 3. Ascot was a student during Technical Promise’s inaugural
year. R. 2-3.
Ascot met frequently with Petitioner, individually, to discuss the
program further and hone Petitioner’s computer programming skills. R. 3. The two
also began to play a popular computer game together, as they grew even closer. R.
3-4. Ascot wrote a glowing letter of recommendation for Petitioner’s admission into
Technical Promise. R. 4.
Both Petitioner and her friend, Ms. Triton, were accepted to the program. R.
4. Petitioner spent most of her last semester of high school preparing for the trip
and becoming closer friends with Ms. Triton, as they both continued to meet with
Ascot. R. 3, 4-5. She also grew more enamored with Ascot, who frequently was a
dinner guest of Petitioner and her family. R. 4. Petitioner’s family was delighted
that she had found such a “good” role model. Id.
She also took an interest in working with Triton’s father. R. 6-7. Mr. Triton
owned a 3D printing kit, so he could hone his chemical engineering skills previously
used while working for an American weapons manufacturer. R. 7. His ultimate goal
was to make a plastic filament flexible enough to pass through the printer, but
strong enough to withstand a substantially greater amount of force than ordinary
filaments. Id.
He also recognized the potential value of such a product. Id.
Petitioner eventually struck a deal with Mr. Triton to solve the software problems
that even his expertise could not correct. Id.
Petitioner was able to diagnose an error in the printer’s code that caused a
mechanical positioning error of less than half a centimeter. Id. She also recognized
4
the resulting printing error this would cause. Id. She then sought the help of Ascot
to resolve the issue. Id. During these meetings, the two also began to discuss the
hacks performed by Dixie Millions. R. 8.
Ascot reassured Petitioner that Dixie
Millions were really “White Hat Hackers,” operating for social good. See id. In
addition, Ascot was able to provide the assistance necessary to finish the coding
solution in less than a week. Id.
Shortly thereafter, Petitioner demonstrated her successful efforts to Mr.
Triton and his daughter. R. 8-9. The installation of the new code worked flawlessly.
R. 9. During tests of the new code, Mr. Triton printed filaments that could be used
to support the making of a handgun capable of discharging multiple bullets. Id. In
addition, he also printed a perfect cylinder upon Petitioner’s request because he
knew this could help make the gun. R. 10.
The following day, Mr. Triton
downloaded plans for a 3-D printed gun from the Internet. He knew this gun would
prove invaluable, so its plans were saved on a gold USB drive. Id.
Petitioner also began to actively research Allen within the Darknet before her
trip. R. 11. She charted his latest sightings, his disguises, and likely path as he
continued to evade law enforcement. R. 11-12. Petitioner calculated where Allen
would be on June 5, 2012, while she was studying abroad, based on the
mathematical formula that Allen used to plot his next move. See R. 12. She also
put a corresponding alert on her smart phone. Id.
Petitioner kept a copy of the computer code, along with a perfect cylinder that
she had printed with it. R. 9. After encouragement from Ascot, Petitioner took the
5
plans and the physical cylinder with her as she left for her trip. Id. Ms. Triton also
brought a second USB drive with the gun plans on it, while Petitioner brought a
small pack of matches and Allen’s tracking information. R. 12. Petitioner hoped “to
prove her hacker credentials in hopes that [Allen] would be so impressed he would
agree to mentor her.” R. 12.
C. Law enforcement personnel arrest Petitioner upon discovering
her explosive device component and dangerous computer code.
Triton’s father drove his daughter and Petitioner to the airport on the day
they planned to leave for Azran. R. 13. However, Mr. Triton negligently rolled
through a stop sign in sight of Officer Smith, of the Harrisburg Police Force. Id.
After pursuing Mr. Triton for nearly half a mile, Officer Smith’s flashing lights and
siren finally forced the car to pull over. R. 13-14.
Mr. Triton revealed that Petitioner and her friend were en route to their
study abroad program in Azran. R. 14. While Mr. Triton cooperated during the
stop, Officer Smith’s search returned record of his earlier speeding violation and the
corresponding warrant for Mr. Triton’s arrest. Id. Officer Smith carried out his
departmental duty and arrested Mr. Triton. Id.
Officer Smith remained with the girls while Mrs. Triton came to pick them up
at the site of the arrest to drive them to the airport. R. 14-15. While they waited, he
was able to see Petitioner’s phone when it alerted her of her upcoming meeting with
Allen. R. 15.
Officer Smith immediately mirandized and arrested both girls
pursuant to a departmental memo warning of the possibility of Allen’s associate
being in the area. Id. Petitioner was arrested based on suspicion of aiding and
6
abetting a known fugitive and search warrants were issued. Id.
The police
subsequently conducted a search of the girls’ various belongings, including
Petitioner’s luggage. R. 16.
Within Petitioner’s luggage, police found matches, hairspray, the 3D-printed
cylinder, a purple USB drive containing the dangerous code, a spreadsheet tracking
Allen, and a picture of Allen’s computer-generated likeness. Id.
Officers also
searched the gold USB drive placed in the car’s stereo. Id. Among innocuous music
tracks on the thumb drive were the detailed plans for a 3D-printed gun. Id. Despite
Mr. Triton’s contentions, the Harrisburg police had no choice but to request
assistance from the FBI. Id.
The FBI began its part of the investigation by researching all individuals who
came into contact with Petitioner and her friend within the previous year. Id.
Through its efforts, the FBI discovered that Ascot had suspiciously quit her job
upon learning of the girls’ arrests. Id. She and her husband have since fled their
home, and have not yet been found by the FBI. Id.
As a result of these investigations, the United States Attorney filed charges
against Petitioner, along with Ms. Triton and her father. Id.
7
Procedural History
A. Petitioner’s trial and subsequent conviction under 26 U.S.C. §
5845(f)(3) and 18 U.S.C. § 2339B.
Petitioner began her trial strategy by refusing to cooperate with the
Government’s plea offer. R. 16. She declined the plea offer requesting information
about Ascot, Allen, or Dixie Millions—claiming Ascot was innocent. Id. Despite her
first counsel’s advice to the contrary and plea deals entered into by Ms. Triton and
her father, Petitioner proceeded to trial. Id. Curiously, she also refused bail so that
her trial would move more quickly. R. 17. As a result, her trial in the District Court
soon began. Id.
A trial, the United States Attorney proffered testimony from FBI agents
specializing in monitoring Darknet activities. Id. These agents presented records
that demonstrated Petitioner’s activities within the network. Id.
Petitioner
attempted to counter this evidence against her with cross-examination of the agents
through their testimony of her intentions to uncover legitimate security threats and
malicious corporate and government activity. Id. Nevertheless, these agents also
claimed that she voiced interest in meeting members of Dixie Millions, and Allen in
particular. Id.
The record also reflects that the FBI was virtually certain that Ascot was
Allen’s partner, “Dixie,” in their Dixie Millions operation. Id. To be sure, there was
documentation of her students consistently being mistakenly arrested as hackers or
suspected hackers. Id. Petitioner was left to her own devices in painting Ascot’s
reputation as positive, as Ascot was unavailable to testify at trial while still evading
8
law enforcement officials. Id. Although Petitioner testified that she had no direct
knowledge of her teacher’s connection to Dixie Millions, she did mention that it
would be “pretty cool” if Ascot truly was one half of the infamous hacktivist group.
Id. Moreover, the prosecution strengthened its case against her through evidence of
her support for Dixie Millions from her Twitter account. See R. 18.
There was also crucial testimony from an FBI ballistics expert that the
combination of the plastic filaments formula on one of Petitioner’s USB drives,
combined with the gun plans on the other, would create a device that could fire a
bullet. Id. Further, the 3D-printed cylinder, matches, and other items discovered by
the police could be combined into an explosive device. Id. The expert affirmed that
Petitioner had the requisite knowledge to fashion these items together in such a
way. Id.
When trial concluded, Petitioner was convicted under 26 U.S.C. § 5845(f)(3)
and sentenced to twelve months in prison. Id. She was also convicted under 18
U.S.C. § 2339B and sentenced to fifteen years in prison. Id. The two terms are to
run concurrently. Id.
B. Petitioner’s appeal to the United States Court of Appeals for the
Fourteenth Circuit, where both convictions were affirmed.
Upon appeal, the Fourteenth Circuit upheld Petitioner’s convictions under
both 26 U.S.C. § 5845(f)(3) and 18 U.S.C. § 2339B. R. 21, 24. The court cited both
the technology and terrorism present in this case, and in recent terrorism efforts in
general, as especially important reasons to not disturb the District Court’s
judgment. R. 21.
9
1. The Fourteenth Circuit affirmed Petitioner’s conviction under §
26 U.S.C. 5845(f)(3) based on the mixed standard approach.
The court began its analysis by choosing the test to apply to Petitioner’s
appeal. R. 19. Although this was an issue of first impression with the court, it was
able to identify the authority of the circuit courts in favor of rejecting Petitioner’s
claim that the simplistic subjective approach should be used. R. 18-19. Indeed, the
subjective approach is “too simplistic to cover the threat of dangerous firearms after
recent terror attacks in New York and Boston.” R. 19.
The court then further
resolved this preliminary issue by recognizing that the mixed standard should be
applied over the objective standard.1 R. 19.
In applying the mixed standard, the court avoided the ambiguities of the
subjective test and the limitations of the objective test. Id. Petitioner’s intentions
and actions, like those of Dixie Millions, were deemed impure and deserving of
heightened scrutiny. See R. 20. Her claim that she merely wanted to meet her role
model gave way to the real-world application potential these items had. Id. The
Court also pointed to findings by both the FBI and U.S. State Department. R. 18-20.
Moreover, the court found that while there may have been some social use to
her items discovered by the Harrisburg police, the realistic culmination of these
items showed a potential far more dangerous than simply the “advancement of
knowledge.” R. 19-20. Petitioner’s previous interest in explosives, and receiving
Allen’s approval of her plans, only strengthened the court’s conclusion. R. 20. The
Also included in the Fourteenth Circuit’s initial analysis was the finding that the
items in Petitioner’s possession were in the stream of commerce. R. 19, n. 2. This is
not challenged by Petitioner’s writ of certiorari, and is therefore undisputed here.
Id.
1
10
items found in her luggage could form a pipe bomb and the 3D gun plans were
inherently capable of death or serious bodily harm. R. 20-21.
The items’
functionality and intangible nature were of no impact under the court’s mixed
standard analysis. R. 21.
The court reasoned that a failure to look past the
objective uses of Petitioner’s items would have led to an absurd result “as any
weapon or explosive device might be reduced to its individual components, each of
which could in turn be deemed innocuous.” See R. 19-20.
In a world marred by seemingly innocuous items being fashioned into deadly
devices, the court reasoned, the combination of Petitioner’s belongings here
presented a dangerous situation. See id. Therefore, the Fourteenth Circuit upheld
Petitioner’s conviction pursuant to 28 U.S.C. § 5845(f)(3). Id.
2. The Fourteenth Circuit also affirmed Petitioner’s conviction
under 18 U.S.C. § 2339B, denying Petitioner’s First Amendment
claims.
The Fourteenth Circuit was also unpersuaded by Petitioner’s claimed
violations of her constitutional rights. R. 21, 24. Specifically, the court disposed of
her First Amendment claim that the statute violated her right to freedom of speech
and freedom of association pursuant to Holder v. Humanitarian Law Project. See
561 U.S. 1 (2010); see also R. 21. Further, the court declined to re-perform the
Supreme Court’s analysis in Brandenburg v. Ohio. 395 U.S. 444 (1969).
After
deciding that Petitioner’s strict scrutiny argument was of no merit, the court found
that § 2339B was constitutional as-applied to her actions. R. 21-24.
11
First, the majority was unpersuaded Petitioner’s argument that her actions
were committed independent of Dixie Millions and its operations. R. 22. Indeed, the
group embodies the prevalent and amorphous worldwide terrorist conglomerate.
See id. With aid of the Internet, groups like Dixie Millions lure individuals just like
Petitioner into their operations. R. 22. Petitioner “fit the exact profile of a member
of Dixie Millions,” and, at any rate, she “was already engaged in activities designed
to further the goals of Dixie Millions, making her membership status moot.” R. 22.
As a result, the court reasoned, Petitioner’s punishment is justified regardless of
her membership status within the group or criminal activity committed in the name
of Dixie Millions. R. 22. The court noted that to hold otherwise would be to turn a
blind eye to typical operations of these types of groups. See R. 23.
Second, the court found of no value that Petitioner’s computer code was
allegedly harmless and inevitably available to Dixie Millions regardless of
Petitioner’s actions. Id. The court held that 18 U.S.C. § 2339B was enacted to “delegitimize foreign terrorist groups and to prevent them from being enriched, even if
that enrichment is inadvertent.” R. 23.
Indeed, Dixie Millions still would have
received a benefit of some kind from the code, as it qualifies as material support
under the purview of Section 2339B. R. 23-24.
The facts present indicated that Petitioner knowingly intended to bring
valuable resources and material support to a known terrorist organization. R. 24.
Therefore, Petitioner’s conviction pursuant to 18 U.S.C. § 2339B was affirmed. Id.
12
C. Circuit Judge Morgan’s dissent.
Within the opinion issued by the Fourteenth Circuit below is a dissent by
Circuit Judge Morgan. R. 24-27. In his dissent, Judge Morgan disagreed with the
majority’s conclusions on both issues presented here. Id.
First, Judge Morgan agreed that the subjective standard should not apply in
addressing Petitioner’s conviction pursuant to 26 U.S.C. § 5845(f)(3). R. 24.
However, he disagreed with the ultimately appropriate standard to be used. R. 25.
Specifically, he argued for the application of the objective standard—instead of the
mixed standard employed by the majority. Id. Judge Morgan justified this strict
liability standard by pointing to the idea that this standard gives weight to the goal
of the statute. Id. Further, he claimed that the statute’s goal was to prevent the
dissembling and then reassembling of components in an attempt to circumvent the
law, rather than broaden the scope of devices that fall under § 5845(f). Id.
Second, Judge Morgan began his 18 U.S.C. § 2339B analysis with the
innocent intentions of Petitioner. R. 24-25.
Further, he claimed the conviction
below violated Petitioner’s First Amendment rights. R. 25-26.
Judge Morgan
anchored these conclusions with the majority’s supposed speculative fear of
hypothetical future violations of the statute. See id. He also recognized this Court’s
requirement of a mens rea consideration under the Gun Control Act in Staples v.
United States. 511 U.S. 600 (1994). Moreover, Judge Morgan took issue with the
majority’s explanation of coordinated versus individual activities, arguing that the
13
actions of one hacker are not necessarily coordinated with the actions of another
hacker. R. 26.
In addition, Judge Morgan argued that the majority’s application of Section
2339B violated Petitioner’s Fifth Amendment rights. R. 26. Moreover, he claimed
that Petitioner was simply attempting to advance her knowledge, without the
requisite knowledge that her actions violated federal law. R. 26-27. Judge Morgan
claimed that the statute failed to provide citizens of ordinary intelligence fair notice
of what it prohibits, or allot the Government appropriate discretion in its
enforcement. Id.
After the Fourteenth Circuit issued its decision, Petitioner subsequently filed
for writ of certiorari from this Court. R. 1. Certiorari was granted for the October
2015 term. Id.
14
SUMMARY OF THE ARGUMENT
I. This Court has not yet determined the proper standard of intent under 26
U.S.C. § 5845(f)(3).
While there is some disagreement among the circuits, the
overwhelming understanding is that § 5845(f)(3) requires at least some analysis of
intent.
A clear and consistent test has emerged, considering first whether the
component parts are objectively capable of being converted into a destructive device,
and if so, then considering whether the defendant intended to create such a device.
Statutory interpretation of § 5845(f)(3) supports the adoption of the mixed
standard of intent under the Gun Control Act.
The plain language is clear in
defining intent to use component parts as an element of § 5845(f)(3). Furthermore,
the structure of the entire provision provides for consideration of intent when
analyzing a defendant’s possession of component parts. Moreover, the mixed intent
standard best serves Congress’ purpose in preventing gun violence without
preventing lawful ownership of guns.
The mixed intent standard combines the subjective and objective standards
to create a bright-line, two-step test that will provide the courts with a consistent,
reliable, and fair analysis of intent. The subjective and objective standards do not
give adequate deference to Congress’ prohibition of firearm violence without
limiting lawful gun ownership. Accordingly, this Court should affirm the decision of
the Fourteenth Circuit to adopt the mixed standard of intent and affirm Petitioner’s
conviction.
15
II. As to the second issue, Petitioner’s conviction under 18 U.S.C.A. § 2339B
should be affirmed for three reasons. First, Petitioner was aware that Clive Allen
was engaged in terrorist activity, yet attempted to provide the infamous hacker
with material support in the form of “training,” “expert advice or assistance,”
“personnel,” and “services.” Over the course of two and a half months, Petitioner
formed the intent to provide Clive Allen with material support, and subsequently
took substantial steps towards achieving her goals.
Second, Petitioner’s conviction should be affirmed because 18 U.S.C.A. §
2339B does not impermissibly infringe on her First Amendment rights to freedom of
speech or association when applied to her actions. Moreover, under a strict scrutiny
analysis, 18 U.S.C.A. § 2339B is narrowly tailored to advance the Government’s
interest by only targeting material support, and not independent advocacy. .
Lastly, 18 U.S.C.A. § 2339B is not impermissible vague as-applied to
Petitioner’s conduct. As this Court ruled in Holder v. Humanitarian Law Project,
narrowing definitions proffered by Congress have clarified 18 U.S.C.A. § 2339B’s
material support provisions, and allow a person of ordinary intelligence to
understand what type of conduct is proscribed.
Furthermore, the limits on 18
U.S.C.A. § 2339B’s prosecutorial scope—promulgated in the Intelligence Reform
and Terrorism Prevention Act of 2004, and internal Justice Department
enforcement policy—have provided definitive standards that guard against
arbitrary enforcement.
Therefore, this Court should affirm the decision of the
Fourteenth Circuit below.
16
ARGUMENT
I.
THE FOURTEENTH CIRCUIT PROPERLY APPLIED THE MIXED
STANDARD OF INTENT UNDER 26 U.S.C. § 5845(f)(3) IN
AFFIRMING PETITIONER’S CONVICTION.
This Court has long held that Congress did not intend to regulate just the
interstate sale of firearms by enacting the Gun Control Act of 1968, but also
intended to “keep firearms away from the persons Congress identified as potentially
irresponsible and dangerous.” Barrett v. United States, 423 U.S. 212, 218 (1976).
Indeed, Congress noted that the “increasing rate of crime and lawlessness and the
growing use of firearms in violent crime clearly attest to a need to strengthen” gun
control laws. H.R. Rep. No. 1577, 90th Cong., 2nd Sess. 1968, reprinted in 1968
U.S.C.C.A.N. 4410, 4412, 1968 WL 5325 (Conf. Rep.).
It is with this fundamental purpose that Congress drafted 26 U.S.C. §
5845(f)(3). The Fourteenth Circuit had that same purpose in mind when it correctly
applied the mixed standard of intent and affirmed Petitioner’s conviction. R. 19.
This decision should be affirmed. While some courts have considered an objective or
subjective intent standard under § 5845(f)(3), neither standard is appropriate.
First, as the majority opinion acknowledged below, the subjective standard will
result in ambiguous and inconsistent convictions under the Gun Control Act. See R.
19. Second, the objective standard will produce absurd results by either attaching
criminal liability without considering all of the facts and circumstances, or allowing
a defendant to skirt liability on a technicality. R. 25.
17
In deciding that § 5845(f)(3) requires a mixed intent standard, this Court
would effectuate congressional intent, and would balance a defendant’s interest to
be free from wrongful incrimination with society’s interest to be free from gun
violence.
A. The language, structure, and legislative history of § 5845(f)(3)
support a mixed standard of intent.
Statutory interpretation requires the Court to consider the language of the
statute as written, the structure of the provision, and the legislative history of the
statute. See Logan v. U.S. Bank Nat. Ass'n, 722 F.3d 1163, 1171 (9th Cir. 2013).
The Court’s consideration must “give effect to the law that Congress enacted.”
Lewis v. City of Chicago, Ill., 560 U.S. 205, 217 (2010).
It has been this Court’s practice to begin with the language of the statute.
See Landreth Timber Co. v. Landreth, 471 U.S. 681, 685 (1985).
Where the
language is unambiguous, the inquiry ends. See Estate of Cowart v. Nicklos Drilling
Co., 505 U.S. 469, 475 (1992). Indeed, “as long as the statutory scheme is coherent
and consistent, there generally is no need for a court to inquire beyond the plain
language of the statute.” United States v. Ron Pair Enterprises, Inc., 489 U.S. 235,
240-41 (1989).
Every circuit court has addressed the plain language of § 5845(f)(3) and it is
apparent that the statute provides for a consideration of intent. The Third Circuit,
for example, found that by “looking solely at the plain meaning of the words used by
Congress,” conviction will be proper when a defendant possesses “a combination of
parts intended for use in converting any device into a destructive device.” United
18
States v. Urban, 140 F.3d 229, 232 (3d Cir. 1998). Similarly, the Fourth Circuit
found that the plain language of the statute may impose liability on a defendant in
possession of component parts “depending on their intended use.” United States v.
Morningstar, 456 F.2d 278, 281 (4th Cir. 1972).
The language of § 5845(f)(3) is unambiguous. A defendant is in possession of
a destructive device under § 5845(f) when she possesses “any combination of parts
either designed or intended for use in converting any device into a destructive
device.” 26 U.S.C. § 5845(f)(3). “Designed” and “intended” are separated by the
disjunctive term “or,” so the language clearly identifies only two situations in which
a combination of parts can be considered a destructive device: (1) either the parts
are designed for use in converting a device into a destructive device; or (2) the parts
are intended for use in converting a device into a destructive device. United States
v. Johnson, 152 F.3d 618, 625 (7th Cir. 1998).
What is ambiguous, however, is the level of intent required under §
5845(f)(3).
Courts resolve statutory ambiguity by reading a provision “in [its]
context within the overall statutory scheme.” Davis v. Michigan Dep't of Treasury,
489 U.S. 803, 809 (1989). Interpreting the plain language of a provision requires
the courts to consider the structure of the overall statute. See Abramski v. United
States, 134 S. Ct. 2259, 2267 (2014) (considering the overall structure of the statute
at issue was critical in determining the meaning of a provision).
The structure of § 5845 clarifies that § 5845(f)(3) requires a mixed standard
of intent.
Subsections (f)(1) and (f)(2) list specific types of weapons, the very
19
possession of which violates § 5861. Indeed, weapons enumerated under (f)(1) and
(f)(2) are so dangerous that “the intent of the user of these weapons [i]s irrelevant,
as they [are] so prone to abuse that they [are] considered per se dangerous and
unnecessary for legitimate pursuits.” United States v. Posnjak, 457 F.2d 1110, 1116
(2d Cir. 1972). Subsection (f)(3), however, was meant to preclude evasion of liability
under (f)(1) and (f)(2) “through possession of the unassembled components instead
of the assembled item.” Id.
The legislative history of the Gun Control Act further supports the finding
that § 5845(f)(3) calls for a mixed standard of intent. For decades, this Court has
held that, “[w]hen possible, every statute should be rationally interpreted with the
view of carrying out the legislative intent.” Gulf States Steel Co. v. United States,
287 U.S. 32, 45 (1932). Courts examine legislative history “to ascertain the intent of
Congress as to the ultimate purpose” of a statute. United States v. Wise, 370 U.S.
405, 414 (1962).
“Congressional concern, when it passed [the Gun Control Act], was to halt the
growing number of crimes in which guns were used to inflict or threaten bodily
harm.” Posnjak, 457 F.2d at 1115. It was not Congress’ intention, however, “to
place any undue or unnecessary restrictions or burdens on responsible, law-abiding
citizens.” S. Rep. 90-1097, S. Rep. No. 1097, 90TH Cong., 2ND Sess. 1968, 1968
U.S.C.C.A.N. 2112, 2114 1968 WL 4956 (Leg. Hist.).
Congress accounted for
component parts being converted into a destructive device through design or intent
20
to avoid such restrictions or burdens. See S. Rep. No. 1501, 90th Congress, 2d Sess.,
P. 533 (1968).
The plain language defines intent to use component parts as an element of §
5845(f)(3). Further, the structure of the entire provision provides for consideration
of intent when analyzing a defendant’s possession of component parts, and the
mixed intent standard best serves Congress’ purpose in preventing gun violence
without preventing lawful ownership of guns.
Therefore, the mixed standard
should apply.
B. This Court should adopt the mixed standard of intent, correctly
employed by the Fourteenth Circuit, because it allows for fair and
consistent adjudication.
In determining which standard of intent to apply, circuit courts have
considered how best to effectuate the purpose of the Gun Control Act, while also
remaining alert to the fact that many people may be in possession of potentially
dangerous parts without any intent to be destructive. Federal courts agree that a
mixed standard appropriately and fairly balances these competing interests.
The mixed standard is a flexible, yet bright-line, two-step analysis of intent
because it considers both the objective use of the component parts and the
subjective intent of the user.
The first step considers the component parts
objectively. “When the destructive nature of the devices or of the component parts
is obvious because they are suited only for a proscribed purpose, no inquiry into the
intent of the possessor is necessary.” Johnson, 152 F.3d at 627. Ending the inquiry
here will allow the courts to aggressively preempt the use of destructive devices by
21
prohibiting the possession of mere parts that are clearly designed for use in a
destructive device. Id.
Where, however, the component parts could serve both a legitimate and
illegitimate purpose, the second step considers the intent of the user because
“criminal liability only attaches when the possessor intends to possess a device for
destructive purposes.” Id.
Intent is only “a necessary element, absent proof of
original design or redesign for use as a weapon.” United States v. Fredman, 833
F.2d 837, 839 (9th Cir. 1987). Courts have applied certain factors under the second
step of the mixed standard, including: (1) the positive, albeit incomplete steps,
toward creating the destructive device; and (2) whether the device may be readily
operable as a destructive device. See Ballew v. United States, 389 F. Supp. 47, 56
(D. Md. 1975); see also United States v. Seven Miscellaneous Firearms, 503 F.
Supp. 565, 573 (D.D.C. 1980).
Many of the circuits employ similar two-part tests. See e.g., United States v.
Spoerke, 568 F.3d 1236, 1248 (11th Cir. 2009) (declining to “adopt a standard
because the evidence of . . . intent, under any standard” was sufficient to convict
where defendant admitted that he was going to use the parts to make a pipe bomb);
Fredman, 833 F.2d at 840 (reversing conviction where there was no design to
convert the component parts and no “compelling indicia of criminal intent”); Urban,
140 F.3d at 234 (analysis of intent not necessary where “it is undisputed that the
parts were clearly designed to create” a destructive device); Posnjak, 457 F.2d at
1119 (“intention to convert the components into the ‘destructive device’ may be
22
important” where the components are capable of legitimate and illegitimate uses);
Morningstar, 456 F.2d at 281 (holding that an analysis of intent is required when
the component parts include commercial explosives capable of innocuous use).
The Third Circuit’s application of the two-step test is particularly instructive.
In Urban, the defendant was found in possession of explosives, a detonator, and a
pamphlet detailing the creation of a bomb. 140 F.3d at 231. The court declined to
consider the defendant’s intention in possessing the component parts because it was
clear that the instructions and parts were designed for use in constructing a
destructive device. Id. at 234.
Additionally, the Fourth Circuit applied both steps of the mixed standard test
and vacated a judgment because the commercial explosives and blasting caps the
defendant possessed were capable of being used for legitimate and illegitimate
purposes. Morningstar, 456 F.2d at 278, 281 (4th Cir. 1972). Despite the fact that
commercial explosives could be used in constructing a destructive device, the court
found that the defendant’s intent would be dispositive in determining criminal
liability under the Gun Control Act and remanded for an intent analysis. Id.
Application of the two-step mixed standard of intent test is appropriate here.
The record demonstrates that Petitioner was found in possession of component
parts capable of constructing a pipe bomb. R. 20-21. However, matches, hairspray,
a 3D cylinder, and computer codes may be considered innocuous items to possess. R.
16, 19.
23
Because the component parts could be used for both legitimate and
illegitimate uses, the intent analysis necessarily must advance to step two. See
United States v. Ross, 458 F.2d 1144, 1146 (5th Cir. 1972) (considering intent is
crucial because “a device that is commonly created for legitimate purposes . . . may
be perverted from that intended, ordinary purpose to an illegitimate end”). The jury
heard extensive evidence of Petitioner’s intention for the various items while in
Azran, and concluded beyond a reasonable doubt that she was in possession of items
either designed or intended for use in constructing a destructive device. R. 18.
The record shows that Petitioner researched Allen for weeks before leaving
for Azran, and conducted a thorough analysis to uncover his pattern of behavior. R.
11-12. Petitioner specifically packed the curve code and perfect cylinder to prove
her constructive and technological abilities to Allen. R. 12. She was found with
matches and hairspray, in addition to plans for a 3D gun and heat resistant plastic
filament. R. 16. The jury heard that Petitioner aspired to be a hacker just like Allen
and Dixie Millions. R. 17 (emphasis added). Hearing evidence of her intent, the jury
found, beyond all reasonable doubt, that Petitioner possessed component parts
under § 5845(f)(3). R. 18.
Furthermore, Petitioner’s reliance on United States v. Oba is misplaced.
There, the court was confronted with the specific question of whether commercial
explosives, like those used in mining, were considered a destructive device under §
5845(f)(1) or (2). 448 F.2d 892, 900 (9th Cir. 1971). The Ninth Circuit found that
Congress did not intend to “subject all those who use ordinary commercial
24
explosives to [the Gun Control Act’s] extremely rigorous regulatory scheme,
enforceable by heavy criminal penalties.” Id. at 903. As a result, the court required
an intent analysis under § 5845(f)(3) to determine whether the defendant intended
to use the commercial explosives to create a destructive device prohibited under §
5845(f)(1) or (2). Id. at 903.
That question does not exist here. The record is clear that Petitioner was
found in possession of designs to build a firearm, a device clearly included within
the Gun Control Act. R. 9, 16. Instead, the question is whether Petitioner was
found in possession of component parts intended for use in constructing a
destructive device. The jury found that she was. R. 18.
Application of the mixed standard of intent test protected Petitioner from
being convicted based solely on the fact that she possessed component parts
objectively capable of destructive use.
Instead, the jury was given a complete
picture of the facts and circumstances surrounding Petitioner’s possession.
C. The subjective and objective standards are unworkable and
inconsistent with the purpose of the Gun Control Act.
Petitioner would have this Court adopt a subjective intent standard under §
5845(f)(3).
Although the subjective intent standard gives every defendant the
opportunity to produce evidence of her intent in possessing component parts under §
5845(f)(3), such evidence, standing alone, does not consistently give effect to the
purpose of the Gun Control Act.
Where component parts are unequivocally designed to create a destructive
device, the intent analysis drops out of the equation to prevent a defendant from
25
attempting to skirt liability by possessing just the parts. “Congress determined
that it is illegal for someone to knowingly take all the components necessary to
build a bomb and put them in one place from which a functional destructive device
could be readily assembled.” United States v. Tomkins, No. 07 CR 227, 2013 WL
80365, at *9 (N.D. Ill. Jan. 4, 2013).
The subjective standard would allow a
defendant to claim that, notwithstanding the objectively destructive design of
component parts, she did not intend to create a destructive device. Id. Such a claim
is irrelevant, and would do nothing but distract the fact-finder from the clear
evidence to the contrary. Id. As a result, the subjective intent standard produces
inconsistent results in similar situations because some defendants may appear
more credible than others, despite the fact that the component parts are clearly
capable of only one, illegitimate use.
On the other hand, the dissent below argues that the objective intent
standard is the appropriate test under § 5845(f)(3). R. 25. The objective standard,
according to the dissent, will attach criminal liability to the possession of
component parts capable of producing a destructive device in (f)(1) or (f)(2). The
dissent’s argument is flawed for two reasons.
First, there is no doubt that the component parts in Petitioner’s possession
were objectively capable of constructing one of the enumerated devices in (f)(1) or
(f)(2). R. 20-21. Thus, even applying the objective standard as the dissent presents
it, Petitioner’s conviction should be affirmed.
26
The dissent’s reliance on cases like Posnjak is faulty. The Second Circuit and
the dissent would allow a defendant to completely escape liability under the Gun
Control Act if the components in her possession could not create a destructive device
as literally described in (f)(1) or (f)(2). See Posnjak, 457 F.2d at 1119 (“The statute's
terms indicate that it was not intended to reach . . . ordinary commercial materials
through “intent” alone. The language implies at minimum the presence of parts
“intended” to “convert” any “device” into a destructive device akin to those referred
to in § 5845(f) (1) and (2)”).
Taking the reasoning of the dissent and the Second Circuit to its logical
conclusion, the courts would find themselves in the following situation.
A
defendant, manifesting the intent to bomb a school using commercial explosives and
a lighter, and actually possessing those items as she walked into the school, would
not be guilty under the Gun Control Act because (f)(1) and (f)(2) do not explicitly
include commercial explosives. Surely Congress did not intend that a defendant
could skirt liability by being creative. As the Fourteenth Circuit noted, “[w]e must
accept that we live in a world where digital items can be made into tangible items in
the blink of an eye, and the law must keep pace with these realities.” R. 21.
Second, and more importantly, the objective standard imposes strict-liability
on a defendant in possession of component parts capable of constructing a
destructive device, and ignores any purpose or intent of the defendant. R. 25. This
standard does not give weight to the word “intended” in § 5845(f)(3), and instead
imputes the objectiveness of subparagraphs (1) and (2) to subparagraph (3). Id.
27
Such a narrow interpretation is too rigid and does not appropriately consider the
very purpose of the Gun Control Act. Indeed, this Court, in Staples, held that the
Gun Control Act did not dispense with a mens rea requirement. 511 U.S. at 616.
The severe penalties associated with convictions under the Gun Control Act
necessarily require at least some consideration of intent. Id. at 605.
Here, Petitioner possessed seemingly innocuous items that could easily be
converted into a pipe bomb. R. 21. This is the exact situation that Congress sought
to prevent in enacting the Gun Control Act. That is why § 5845(f)(3) requires courts
to consider the dangerous potential that the items pose once assembled. The jury
heard evidence tending to explain the legitimate and illegitimate uses of, and intent
behind, the objects that Petitioner possessed, and the jury convicted.
The
Fourteenth Circuit, reviewing the evidence and applying the fair and flexible mixed
intent standard, affirmed. Respectfully, this Court should do the same.
*
*
*
The plain language, statutory structure, and legislative history behind the
Gun Control Act make clear that § 5845(f)(3) requires a mixed intent standard. In
practice, the mixed intent standard provides the fact finder with a complete picture
of the objective nature of the component parts and the subjective intent of the user.
Therefore, this Court should affirm Petitioner’s conviction under the mixed intent
standard of 26 U.S.C. § 5845(f)(3).
28
II.
PETITIONER’S CONVICTION PURSUANT TO 18 U.S.C. § 2339B
MUST BE AFFIRMED BECAUSE SHE PLANNED TO MEET A
LEADER OF A KNOWN FOREIGN TERRORIST ORGANIZATION
IN ORDER TO DEMONSTRATE A POTENTIALLY DANGEROUS
COMPUTER CODE TO HIM.
In an evolving digital age, the United States faces the growing threat of
cyber-attacks.
Globalization
and
constant
interconnectivity
have
directly
heightened this threat, as a cyber terrorist can cripple an entire region into
darkness with one fell key stroke. Simply put, a successful cyber-attack on the
United States’ digital infrastructure would be devastating and would virtually
paralyze the nation.
Accordingly, law enforcement officials have been proactive in seeking
innovative solutions to stave off catastrophe. For example, federal prosecutors, like
those in the Central District of New Tejas, have applied the material support
statute, 18 U.S.C.A. § 2339B, to cases of cyber-terrorism. R. 18.
Congress enacted § 2339B in 1996 based on a finding that certain
organizations are so “tainted by their criminal conduct” that any contribution to
them facilitates that criminal conduct. Holder v. Humanitarian Law Project, 561
U.S. 1, 7 (2010). Section 2339B makes it a federal crime to “knowingly provide, or,
attempt or conspire to provide, material support or resources to a foreign terrorist
organization.” 18 U.S.C. § 2339B. This approach has been a necessary tool as the
government continues to thwart cyber-attacks. When applied to the present facts,
Petitioner’s prosecution and conviction pursuant to 18 U.S.C. § 2339B must be
affirmed because she did exactly what the material support statute seeks to
29
prevent—an attempt to provide material support to a known foreign terrorist
organization.
A. Petitioner was correctly convicted under 18 U.S.C. § 2339B
because she knowingly attempted to provide material support to
Dixie Millions.
Petitioner was correctly convicted pursuant to the statutory terms of § 2339B.
It is well established that where Congress uses terms that have accumulated settled
common law meanings, courts must read those terms within their established
meanings. Field v. Mans, 516 U.S. 59, 69 (1995). Without any indication to the
contrary, there is no reason to doubt Congress’ intention to codify the common law
definition of “attempt” when the term is used in § 2339B. Id. As such, “an attempt
to commit a crime requires that some act be done towards carrying out the
perpetrators intent.” United States v. Resendiz-Ponce, 549 U.S. 102, 106-107 (2007).
Recently, courts have recognized that the requisite overt act must be a
“substantial step” towards completing the offense. Id.; see also ALI, Model Penal
Code § 5.01(1)(c) (1985) (defining “criminal attempt” to include “an act or omission
constituting a substantial step in a course of conduct planned to culminate in his
commission of the crime.”). Under either definition, however, there must be some
significant conduct. See Resendiz-Ponce, 549 U.S. at 106-07.
Importantly, both parties agree with the Secretary of State’s declaration of
Dixie Millions as a foreign terrorist organization. R. 5, n.1. Here, Petitioner formed
the intent to provide material support to Clive Allen—the leader of Dixie Millions—
and subsequently took a substantial step toward consummation of that support.
30
Specifically, over the course of two and a half months, Petitioner formed the intent
to provide Clive Allen with: (1) “training;” (2) “expert advice or assistance;” (3)
“personnel;” and (4) “service.” See 18 U.S.C. § 2339B.
1. Petitioner had the requisite knowledge of Dixie Millions’
connection to terrorism to be convicted under 18 U.S.C. §
2339B.
Congress has taken legislative steps to limit § 2339B’s scope. Humanitarian
Law Project, 561 U.S. at 35. Notably, Congress narrowed the statute’s scienter
requirement. Id. at 16.
Under § 2339B, a person accused of providing, or
attempting to provide, material support is only culpable if they have knowledge of
the group’s status as a foreign terrorist organization; or, knowledge that the group
engages in “terrorism” or “terrorist activity.” Id.
However, the actual intent to
further those terrorist activities is not required for violation of § 2339B.
Here, Petitioner had knowledge that infamous hacktivist Allen engaged in
cyber-terrorism. Cyber-terrorism is often referred to as a tool used by terrorists to
hijack computer systems over the Internet. Bernadette Schell & Clemens Martin,
Webster's New World Hacker Dictionary at 87 (2006) (providing various definitions
of the general term cyber-terrorism). In response to this threat, the Department of
Homeland Security and the Department of Defense have defined cyber-terrorism as
“any criminal act conducted with computers and resulting in violence, destruction,
or death of its targets . . . and including attacks on computer networks and
transmission lines . . . ” CLAY WILSON, CONG. RESEARCH SERV., RL32114, Computer
Attack and Cyber Terrorism: Vulnerabilities and Policy Issues for Congress, 4
31
(2003). Accordingly, the definition encompasses everything from the unleashing of
weapons of mass disruption to basic hacking. Schell & Martin, supra, at 42-54
(providing a very broad definition of cyber-terrorism and different ways in which
cyber-terrorism can help terrorists achieve their goals).
Dixie Millions, with Allen at its helm, has taken responsibility for numerous
attacks on the United States. Specifically, the United States Military Network,
Central Intelligence Agency, Federal Bureau of Investigation, International
Monetary Fund, Interpol, Google, and other financial institutions have all fallen
prey to Dixie Millions’ cyber attacks. R. 5. Petitioner was not only aware of Clive
Allen’s hacking, but also enamored by it. Id. at 11. She actively researched Clive
Allen and discussed his attacks with her teacher. Id. at 8, 11. Petitioner even hoped
to gain Allen’s support as a mentor and be guided under his tutelage. Id. at R. 12.
Therefore, Petitioner had the requisite knowledge of the terroristic tendencies of
Dixie Millions and Allen.
2. Petitioner took substantial steps towards providing material
support to Dixie Millions.
Congress has provided narrowing definitions for § 2339B’s key terms.
Humanitarian Law Project, 561 U.S. at 21. Most importantly, Congress clarified
“material support” by providing definitions for the terms “training,” “expert advice
or assistance,” and “personnel.” See 18 U.S.C. § 2339B. The fact that Petitioner’s
material support was of an intangible nature is of no consequence. See 18 U.S.C. §
2339B(g)(4); see also 18 U.S.C. § 2339A(b)(1) (prohibiting “tangible or intangible”
material support).
32
First, Petitioner intended to provide Dixie Millions with “training” by
planning to impart Dixie Millions with the specific skill of 3-D printing a perfect
cylinder through application of Petitioner’s unique computer code. R. 12. Section
2339B defines “training” as, “instruction, or teaching, designed to impart a specific
skill, as opposed to general knowledge.” See 18 U.S.C.A. § 2339B(g)(4) (1996); see
also 18 U.S.C. § 2339A(b)(2). Applying a unique computer code to newfound 3-D
printing technology, and correcting a printing error of less than half a centimeter, is
a quintessentially specific skill. See R. 7. In fact, it took Petitioner eleven days to
learn the specific skill. Id. at 7-8.
physics teacher, Ascot. Id.
Befuddled, she sought the assistance of her
The FBI is nearly certain that Ascot is the hacker
“Dixie” of Dixie Millions. Id. at R. 17. It took four days of Ascot’s intense labor to
fully solve the printing error. R. 8. Then, after solving the computer code, Petitioner
intended to impart that knowledge onto Allen. Id. at R. 12. She intended to show
Allen the code in hopes that he would agree to mentor her. Id. Such collaboration
and conveying of information is exactly what § 2339B is meant to prohibit.
Moreover, Petitioner formed the intent to provide Dixie Millions with “expert
advice or assistance.”
Section 2339B defines “expert advice or assistance” as,
“advice or assistance that is derived from scientific, technical, or specialized
knowledge.” Humanitarian, 561 U.S. at 12-13.
Here, Petitioner perfected her
computer code over an eleven-day span and hoped to show it to Dixie Millions’
leader, Clive Allen. R. 7-8, 12-13. Petitioner derived her computer coding and 3-D
printing skills from the scientific, technical, and specialized support she received
33
from Ascot. See id. at 7-8. Ascot tutored Petitioner on how to program in computer
code generally, Id. at 4, and on how to use her perfected code to print a perfect
cylinder. Id. at 8. Armed with this knowledge, Petitioner was in a unique position
to cooperate with Allen. Thus, Petitioner’s plans to demonstrate the vexing
computer code to Allen violated § 2339B’s prohibition on “expert advice or
assistance.”
Next, by planning to meet with Allen in Azran, Petitioner intended to provide
Dixie Millions with “personnel.” Under § 2339B, a defendant provides a foreign
terrorist organization with “personnel” when she attempts to provide, conspires to
provide, or in fact provides, one or more individuals (including the accused
themselves) to work under the foreign terrorist organizations direction or control.
Humanitarian, 561 U.S. at 13. Here, Petitioner intended to provide herself as a
trainee to work under Allen. R. 11-12. Petitioner even admitted to Ms. Triton the
night before her trip that she longed to find a mentor. Id. at 13. This, she hoped,
would lead to a long-term relationship; one in which Clive Allen would guide her in
becoming a hacker. Id. at 11. These aspirations evidence an intention to provide
personnel to a foreign terrorist organization.
Finally, by intending to provide Dixie Millions with “personnel,” Petitioner
simultaneously formed the intent necessary to provide the foreign terrorist
organization with “services.” “Services,” as defined by this Court in Humanitarian
Law Project are “concerted activities performed in coordination with, or at the
direction of, a foreign terrorist organization.” 561 U.S. at 23-24.
34
However,
independent advocacy is outside the purview of this definition. Id. Accordingly, by
plotting to be Allen’s apprentice, Petitioner did not seek to advocate for hacktivism
independently, but rather, alongside the foreign terrorist organization.
With the intent to violate each of these provisions, Petitioner then committed
overt acts to convert her intent to provide material support into an attempt to
provide material support. She packed her bags with the thumb drive containing the
computer code; a perfectly printed cylinder as proof that the code worked; and a
spreadsheet of Allen’s daily locations. R. 12. She then used one of her computer
games to design a character to replicate disguises that Allen was known to wear in
Azran. Id. She printed a picture of this Allen character look-alike as reference, and
then created a calendar event in her smart phone labeled “Meet Clive Allen at
Café”. Id. But for the intervention of Officer Smith as Petitioner traveled to the
airport, Petitioner would have boarded the plane to Azran, See R. 14, and in all
likelihood, consummated her plan to provide material support to Clive Allen.
B. Petitioner cannot escape her prosecution and conviction under
18 U.S.C. § 2339B with purported violations of her First
Amendment rights.
Petitioner raises two First Amendment claims in an attempt to invalidate her
conviction under § 2339B. R. 21. She claims that § 2339B violates her freedom of
speech and freedom of association. R. 21. This Court has already found § 2339B
constitutional on its face because it does not substantially interfere with First
Amendment freedoms. See Humanitarian Law Project, 561 U.S. at 21-22.
Fourteenth Circuit affirmed that holding as it relates to Petitioner.
35
The
In the
alternative, Petitioner alleges that § 2339B impermissibly infringes on her First
Amendment freedoms as-applied to her specific conduct. R. 21. Nevertheless, this
claim is meritless.
1. Respondent
analysis.
has
met
its
burden
under
a
strict
scrutiny
In Humanitarian Law Project, this Court posited that where a generally
applicable statute prohibits conduct that communicates a message based on the
content of that message, freedom of speech is implicated and the most demanding
standard of scrutiny applies. Id. at 28. Here, Section 2339B regulates Petitioner’s
conduct based on the content of her speech. Id. Specifically, under the “training”
provision, if a defendant’s communication to a foreign terrorist organization imparts
general knowledge, the speech is permissible. See id. at 27.
However, if the
defendant’s speech imparts a specific skill, § 2339B is violated. Id. Thus, this Court
in Humanitarian Law Project flatly rejected the application of intermediate
scrutiny to § 2339B. Id. at 28.
However, even under strict scrutiny analysis, Petitioner’s First Amendment
claims must fail. Respondent meets its burden because it has a compelling interest,
and § 2339B is narrowly tailored to further that interest. As this Court ruled in
Humanitarian Law Project, the Government’s interest in combating terrorism is an
urgent objective of the highest order that outweighs any burden imposed on a
defendant. 561 U.S. at 40.
Such a compelling interest is evidenced here. On his own, Allen has illegally
released millions of documents stolen from the NSA. R. 5. As a duo, Dixie Millions
36
has hacked United States government agencies and leading business, and have
threatened to hack vital infrastructure to release classified documents. R. 5. These
agencies possess crucial financial and administrative secrets place the United
States security interest at risk. See R. 5.
In addition, § 2339B is narrowly tailored to further the interest of combating
terrorism. Humanitarian Law Project, 561 U.S. at 26.
As the Second Circuit
reasoned in United States v. Farhane, Ҥ 2339B leaves persons free to say anything
the wish, on any topic, including terrorism . . . [i]t does not seek to suppress ideas or
opinions.” 634 F.3d 127, 137 (2d Cir. 2011). The statute only reaches one specific
form of conduct—material support. Humanitarian, 561 U.S. at 32. The specificity of
conduct prohibited by § 2339B demonstrates its narrow tailoring. See id. at 25.
Lastly, § 2339B’s narrow scope furthers the Government’s interests
efficiently. It ensures that no material support, of any kind, will reach foreign
terrorist organizations. Humanitarian, 561 U.S. at 36-37. Moreover, the prohibition
of support that is “material” further demonstrates the statute’s narrow focus. See 18
U.S.C. § 2339B.
Congressional findings have warned that foreign terrorist
organizations are so tainted by their criminal conduct that any contribution to them
facilitates criminal conduct. Humanitarian Law Project, at 8. This Court has ruled
that § 2339B is adequate to further the Governments interest in combating
terrorism. See id. at 36.
With the enactment of 2339B, the Government can
adequately respond to evolving cyber threats such as the computer coding and 3-D
37
printing present in this case. Therefore, even if this Court uses a strict scrutiny
analysis, Petitioner’s conviction under 18 U.S.C. § 2339B must be affirmed.
2. Section 2339B, as-applied to Petitioner’s actions, does not
violate her Freedom of Association.
Similar to Petitioner’s freedom of speech claim, her freedom of association
claim must also fail.
This Court has noted that it would be strange if the
Constitution permitted Congress to prohibit certain forms of speech that constitute
material support, but did not permit Congress to only prohibit that support to
dangerous and lawless foreign organizations. Humanitarian Law Project, 561 U.S.
at 40.
However, what is particularly dispositive of this claim is § 2339B’s express
aim to not penalize mere association with a foreign terrorist organization. Id. at 3940.
In fact, a person is free to vigorously advocate for a foreign terrorist
organization as they wish, so long as the advocacy is done independently. Id. The
only action prohibited is providing, or attempting to provide, material support. Id.
at 32. Here, Petitioner has attempted to travel to Azran and personally provide
Dixie Millions with an invaluable computer code and 3-D printing plans. R. 24.
Such concerted activity goes beyond independent advocacy or mere association. Id.
at 23-24. Therefore, Petitioner’s freedom of association claim is without merit and
this Court should affirm the Fourteenth Circuit’s decision below.
38
C. The material support statute is not impermissibly vague under
the Due Process Clause when applied to Petitioner’s actions.
As an outgrowth of the Due Process Clause of the Fifth Amendment, the
Vagueness Doctrine promotes several constitutional values. United States v.
Williams, 553 U.S. 285, 395 (2008); Grayned v. City of Rockford, 408 U.S. 104, 108109 (1972). Vague laws trap the innocent by not providing fair warning of what is
proscribed; they impermissibly delegate policy matters to policemen, judges, and
juries, for resolution on an ad hoc and subjective basis; and uncertain meanings
lead citizens to “steer far wider of the unlawful zone' . . . than if boundaries were
clearly marked.” Id.
Accordingly, a statute is deemed constitutional under the
Vagueness Doctrine if it: (1) provides a person of ordinary intelligence fair notice of
what is prohibited; and (2) promulgates standards to protect against arbitrary and
discriminatory enforcement.” Id. at 304.
When performing the as-applied review, courts typically follow the maxim
that as between two possible interpretations of a statute, one finding the statute
valid and the other unconstitutional, a court's “plain duty is to adopt that which will
save the Act. ” Farhane, 634 F.3d 1308. Further, 2339B must be clear when applied
to Petitioner’s conduct here, and not necessarily in every conceivable application.
See Humanitarian Law Project, 561 U.S. at 21. Accordingly, Petitioner’s vagueness
claim must fail.
39
1. Section 2339B does not violate the Fifth Amendment because it
provides a person of ordinary intelligence fair notice of its
prohibitions.
In order to provide the necessary notice under the Fifth Amendment,
statutory terms must be facially clear and untethered from subjective judgments.
Humanitarian Law Project, 561 U.S. at 21. Moreover, this Court has reasoned that
fair notice under § 2339B involves a defendant’s awareness that advocacy
performed for a foreign terrorist organization is prohibited, rather than advocacy
performed independently. Id. at 24.
In Humanitarian Law Project, this Court applied the Vagueness Doctrine to
facts similar to those at issue here. That case involved six domestic organizations
that wished to provide material support to the “legitimate activities” of two
notorious
foreign
terrorist
organizations.
Humanitarian, 561 U.S. at 29.
Specifically, the defendants attempted to provide members with training on the use
of international law to peacefully resolve disputes, and how to petition the United
Nations for relief. Id. at 14. At issue in the defendants’ vagueness challenge were
the statutory terms “training,” “expert advice or assistance, “service,” and
personnel.” Id. at 10.
Accordingly, this Court ruled that as-applied to the defendants in
Humanitarian, a person of ordinary intelligence would understand that instruction
on how to petition the United Nations and resolve disputes through international
law, is a specific skill derived from specialized knowledge—falling within the reach
of § 2339B’s prohibition. Id. at 22. In addition, this Court found that a person of
40
ordinary intelligence would also understand the terms “service,” and “personnel,”
impugn advocacy performed for a foreign terrorist organization, rather than
independently. Id. at 24.
Here, Petitioner violated the same statutory terms of § 2339B that
defendants violated in Humanitarian Law Project. She knowingly attempted to
provide “training,” “expert advice or assistance,” “personnel,” and “services,” to
Allen and Dixie Millions. A person of ordinary intelligence would understand that
attempting to demonstrate a unique 3-D printing computer code to Clive Allen is a
specific skill, rather than general knowledge. See Humanitarian, 561 U.S. at 13.
The potential use of this code would appear especially useful to a cyber-terrorist
organization, such as Dixie Millions.
Likewise, that same person of ordinary
intelligence would recognize that knowledge of the computer code was derived from
the specialized knowledge of Ascot. Id. Finally, a person of ordinary intelligence
would understand that attempting to provide oneself, as a mentee, would fall under
§ 2339B. Id. at 24. Section 2339B is thus in harmony with the notice requirement of
the Vagueness Doctrine.
2. Section 2339B also grants
enforcement discretion.
the
Government
appropriate
The second requirement of Vagueness Doctrine focuses on whether a statute
provides standards that guard against arbitrary enforcement. Kolender v. Lawson,
461 U.S. 352, 358 (1983). This requirement demonstrates the understanding that
sufficient minimal guidelines for law enforcement personnel prevent them from
41
pursuing their own personal predilections. Papachristou v. City of Jacksonville, 405
U.S. 156, 170 (1972).
For example, in Papachristou, this Court invalidated a city ordinance for
failure to provide standards governing law enforcement’s exercise of discretion. Id.
at 162.
There, an anti-vagrancy ordinance prohibited nearly thirty separate
categories of public conduct. Id. at 157. In fact, the statute was so arbitrary that in
one instance a man was arrested for loitering in a driveway after being commanded
to stand in the driveway by another officer. Id. at 159. The ordinance cast such an
ad hoc net that even normally innocent conduct was deemed criminal. Id. at 163. To
be sure, the ordinance led to arbitrary arrest and erratic convictions. Id.
That is not the case here. Section 2339B is incomparable to the ordinance in
Papachristou.
While the ordinance gave law enforcement unfettered discretion
there, Congress expressly limited § 2339B’s scope with the Intelligence Reform and
Terrorism Prevention Act of 2004 (IRTPA). Humanitarian, 561 U.S. at 12. The
IRTPA clarifies the mental state necessary to violate § 2339B, and requires
knowledge of the foreign group's designation as a terrorist organization, or the
group's commission of terrorist acts. Id.
Thereafter, the Department of Justice
promulgated an explicit internal policy to limit the risk of arbitrary enforcement of
this statute. United States v. Marzook, 383 F. Supp. 2d 1056, 1072, n. 9 (D. Ill.
2005). Mirroring the IRTPA, the Justice Department policy states that “a person
may only be prosecuted under § 2339B for providing “personnel”… if that person
has knowingly provided … one or more individual’s … under the foreign entity's
42
direction or control.” Id. The policy also sufficiently protects independent actors. Id.
These guidelines demonstrate that law enforcement is only permitted to target
individuals who attempt to subordinate themselves to a foreign terrorist
organization.
Such specificity prevents invalidation based on vagueness, as
Petitioner’s conduct falls well within § 2339B purview.
*
*
*
Providing foreign terrorist groups with material support in any form furthers
terrorism by undermining cooperative efforts between nations to prevent terrorist
attacks. Humanitarian Law Project, 561 U.S. at 32 (emphasis added). Accordingly,
this Court should affirm Petitioner’s conviction under 18 U.S.C. § 2339B because
she attempted to provide material support to a foreign terrorist organization.
CONCLUSION
For the foregoing reasons, Respondent respectfully requests that this Court
affirm the decision of the United States Court of Appeals for the Fourteenth Circuit.
Respectfully Submitted,
/s/ Team No. 46
Team No. 46
Counsel for Respondent
43
Appendix A
26 U.S.C § 5845- Definitions
(f) Destructive Device
The term “destructive device” means (1) any explosive, incendiary, or poison gas (A)
bomb, (B) grenade, (C) rocket having a propellant charge of more than four ounces,
(D) missile having an explosive or incendiary charge of more than one-quarter
ounce, (E) mine, or (F) similar device;
(2) any type of weapon by whatever name known which will, or which may be
readily converted to, expel a projectile by the action of an explosive or other
propellant, the barrel or barrels of which have a bore of more than one-half inch in
diameter, except a shotgun or shotgun shell which the Secretary finds is generally
recognized as particularly suitable for sporting purposes; and
(3) any combination of parts either designed or intended for use in converting any
device into a destructive device as defined in subparagraphs (1) and (2) and from
which a destructive device may be readily assembled. The term “destructive device”
shall not include any device which is neither designed nor redesigned for use as a
weapon; any device, although originally designed for use as a weapon, which is
redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar
device; surplus ordnance sold, loaned, or given by the Secretary of the Army
pursuant to the provisions of section 4684(2), 4685, or 4686 of Title 10 of the United
States Code; or any other device which the Secretary finds is not likely to be used as
I
a weapon, or is an antique or is a rifle which the owner intends to use solely for
sporting purposes.
II
Appendix B
18 U.S.C.A. § 2339B- Providing material support or resources to designated
foreign terrorist organizations
(a) Prohibited activities.-(1) Unlawful conduct.-- Whoever knowingly provides material support or
resources to a foreign terrorist organization, or attempts or conspires to do so, shall
be fined under this title or imprisoned not more than 20 years, or both, and, if the
death of any person results, shall be imprisoned for any term of years or for life. To
violate this paragraph, a person must have knowledge that the organization is a
designated terrorist organization (as defined in subsection (g)(6)), that the
organization has engaged or engages in terrorist activity (as defined in section
212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has
engaged or engages in terrorism (as defined in section 140(d)(2) of the Foreign
Relations Authorization Act, Fiscal Years 1988 and 1989).
...
(g) Definitions.—As used in this section—
(1) the term “classified information” has the meaning given that term in section
1(a) of the Classified Information Procedures Act (18 U.S.C. App.);
(2) the term “financial institution” has the same meaning as in section 5312(a)(2) of
title 31, United States Code;
(3) the term “funds” includes coin or currency of the United States or any other
country, traveler’s checks, personal checks, bank checks, money orders, stocks,
III
bonds, debentures, drafts, letters of credit, any other negotiable instrument, and
any electronic representation of any of the foregoing;
(4) the term “material support or resources” has the same meaning given that term
in section 2339A (including the definitions of “training” and “expert advice or
assistance” in that section);
(5) the term “Secretary” means the Secretary of the Treasury; and
(6) the term “terrorist organization” means an organization designated as a
terrorist organization under section 219 of the Immigration and Nationality Act.
(h) Provision of personnel.—No person may be prosecuted under this section in
connection with the term “personnel” unless that person has knowingly provided,
attempted to provide, or conspired to provide a foreign terrorist organization with 1
or more individuals (who may be or include himself) to work under that terrorist
organization’s direction or control or to organize, manage, supervise, or otherwise
direct the operation of that organization. Individuals who act entirely independently
of the foreign terrorist organization to advance its goals or objectives shall not be
considered to be working under the foreign terrorist organization’s direction and
control.
(i) Rule of construction.—Nothing in this section shall be construed or applied
so as to abridge the exercise of rights guaranteed under the First Amendment to the
Constitution of the United States.
IV
Appendix C
18 U.S.C. § 2339A- Providing material support to terrorists
(a) Offense.-- Whoever provides material support or resources or conceals or
disguises the nature, location, source, or ownership of material support or
resources, knowing or intending that they are to be used in preparation for, or in
carrying out, a violation of section
32, 37, 81, 175,229, 351, 831, 842(m) or (n), 844(f) or (i), 930(c), 956, 1091, 1114, 1116, 12
03, 1361, 1362, 1363, 1366, 1751, 1992, 2155, 2156, 2280, 2281,2332, 2332a, 2332b, 2332f,
2340A, or 2442 of this title, section 236 of the Atomic Energy Act of 1954 (42U.S.C.
2284), section46502 or 60123(b)oftitle49, or any offense listed in section
2332b(g)(5)(B) (except for sections 2339A and 2339B) or in preparation for, or in
carrying out, the concealment of an escape from the commission of any such
violation, or attempts or conspires to do such an act, shall be fined under this title,
imprisoned not more than 15 years, or both, and, if the death of any person results,
shall be imprisoned for any term of years or for life. A violation of this section may
be prosecuted in any Federal judicial district in which the underlying offense was
committed, or in any other Federal judicial district as provided by law.
(b) Definitions.--As used in this section-(1) the term “material support or resources” means any property, tangible or
intangible, or service, including currency or monetary instruments or financial
securities, financial services, lodging, training, expert advice or assistance,
safehouses, false documentation or identification, communications equipment,
V
facilities, weapons, lethal substances, explosives, personnel (1 or more individuals
who may be or include oneself), and transportation, except medicine or religious
materials;
(2) the term “training” means instruction or teaching designed to impart a specific
skill, as opposed to general knowledge; and
(3) the term “expert advice or assistance” means advice or assistance derived from
scientific, technical or other specialized knowledge.
VI