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 48 Attorneys for Respondent QUESTIONS PRESENTED I. Can an individual be charged under 26 U.S.C. § 5845(f)(3) for making an explosive device by designing and fabricating firearm parts on a 3D printer? II. Can a person be prosecuted under 18 U.S.C. § 2339B for making plans to meet an individual of a known foreign terrorist organization in order to show and demonstrate potentially dangerous computer code to that individual? i TABLE OF CONTENTS Page QUESTIONS PRESENTED ........................................................................................... i TABLE OF AUTHORITIES .......................................................................................... v STATEMENT OF JURISDICTION .............................................................................. 1 OPINIONS BELOW ...................................................................................................... 1 STATUTORY PROVISIONS INVOLVED .................................................................... 1 STATEMENT OF THE CASE ....................................................................................... 1 SUMMARY OF THE ARGUMENT .............................................................................. 7 ARGUMENTS & AUTHORITIES................................................................................. 9 I. BORNE CAN BE CHARGED UNDER 26 U.S.C. § 5845(F)(3) FOR MAKING AN EXPLOSIVE DEVICE BY DESIGNING AND FABRICATING FIREARM PARTS ON A 3D PRINTER ....................................................................................................................... 9 A. The Fourteenth Circuit Properly Applied a Mixed Standard that First Examines the Objective Use of Items in a Defendant’s Possession and Then, if Necessary, the Defendant’s Subjective Intent ....................................... 11 1. The mixed standard effectively protects against the ambiguities of the subjective standard and the limitations of the objective standard .................. 12 2. The objective standard fails to afford sufficient protections against the use of homemade weapons, even when a defendant openly admits the uncontroverted destructive intended purpose of the device ............................ 16 3. The subjective standard can only be effective in the narrow circumstances when a criminal defendant willingly and truthfully admits the requisite intent for the commission of a charged crime ................ 17 B. A Rational Fact-Finder Could Find that Borne Possessed a Destructive Device as Defined by 26 U.S.C. § 5845(f)(3) ......................................................... 19 ii 1. The objective nature of Borne’s 3D gun plans, hairspray, and plastic filament formula each constituted a weapon .................................................... 20 2. Borne subjectively intended to use her 3D gun plans, hairspray, and plastic filament formula individually as weapons............................................ 25 3. The evidence established that the individual items could be readily assembled into an explosive device ................................................................... 25 a. The matches, plastic cylinder, and hairspray could be readily assembled into a pipe bomb ............................................................................ 25 b. The 3D gun plans could be used to readily assemble a completed bomb within a matter of hours ....................................................................... 27 II. BORNE CAN BE CHARGED UNDER 18 U.S.C. § 2339B FOR MAKING PLANS TO MEET THE LEADER OF A FOREIGN TERRORIST ORGANIZATION IN ORDER TO SHOW AND DEMONSTRATE DANGEROUS COMPUTER CODE ................................................... 30 A. 18 U.S.C. § 2339B of the Material Support Statute is Constitutional on its face and as applied to Borne’s conduct ............................................................ 30 1. 18 U.S.C. § 2339B is not unconstitutionally vague or overbroad on its face ...................................................................................................................... 31 a. 18 U.S.C. § 2339B is not unconstitutionally vague on its face .................. 31 b. 18 U.S.C. § 2339B is not overly broad on its face ...................................... 35 2. 18 U.S.C. § 2339B is not unconstitutionally vague as it applies to Borne .................................................................................................................. 36 a. Borne’s conduct fell within the statute’s plain meaning ............................ 36 b. The statute’s plain meaning gives proper guidance to law enforcement and courts........................................................................................................ 38 B. A Rational Fact-Finder Could Find that Borne Provided Dixie Millions with Material Support to a Foreign Terrorist Organization as defined by 18 U.S.C. § 2339B.................................................................................................. 40 iii 1. Borne’s conduct constituted “material support” ........................................... 40 2. Borne’s conduct, at a minimum, constituted an attempt to provide material support ................................................................................................ 44 3. Borne knew that Dixie Millions was a foreign terrorist organization ......... 45 CONCLUSION............................................................................................................. 48 APPENDICES.............................................................................................................. 49 APPENDIX A .................................................................................................. A-1 APPENDIX B .................................................................................................. B-1 APPENDIX C .................................................................................................. C-1 iv TABLE OF AUTHORITIES Page(s) Cases Beck v. Dobrowski, 559 F.3d 680 (7th Cir. 2009) ............................................................................. 46 Boim v. Holy Land Found. For Relief & Dev., 549 F.3d 685 (7th Cir. 2008) ............................................................................. 43 Boykin v. Alabama, 395 U.S. 238 (1969) ........................................................................................... 17 Braxton v. United States, 500 U.S. 344 (1991) ........................................................................................... 43 City of Chicago v. Morales, 527 U.S. 41 (1999) ............................................................................................. 31 Estate of Parsons v. Palestinian Authority, 952 F. Supp. 2d 61 (D.C. Cir. 2013).................................................................. 45 Glasser v. United States, 315 U.S. 60 (1942) ............................................................................................... 9 Hill v. Colorado, 530 U.S. 703 (2000) ........................................................................................... 32 Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) ....................................................................................... passim In re Terrorist Attacks on September 11, 2011, 740 F. Supp 2d 494 (S.D.N.Y. 2010) ................................................................. 46 Jackson v. Virginia, 443 U.S. 307 (1979) ............................................................................................. 9 Posters ‘N’ Things, Ltd. v. United States, 511 U.S. 513 (1994) ........................................................................................... 32 v United States v. Amawi, 545 F. Supp. 2d 681 (N.D. Ohio 2008) .............................................................. 35 United States v. Beckett, 208 F.3d 140 (3d Cir. 2000) .............................................................................. 28 United States v. Campbell, 685 F.2d 131 (5th Cir. 1982) ....................................................................... 25, 26 United States v. Cooper, 462 F.2d 1343 (5th Cir. 1972) ........................................................................... 29 United States v. Cruz, 492 F.2d 217 (2d Cir. 1974) .............................................................................. 24 United States v. Davis, 313 F. Supp. 710 (D.Conn.1970) ....................................................................... 14 United States v. DeMarce, 564 F.3d 989 (8th Cir. 2008) ............................................................................. 44 United States v. Farhane, 634 F.3d 127 (2d Cir. (2011) ................................................................... 9, 41, 42 United States v. Fredman, 833 F.2d 837 (9th Cir. 1987) ......................................................................... 9, 15 United States v. Hammond, 371 F.3d 776 (11th Cir. 2004) ..................................................................... 23, 24 United States v. Hamrick, 43 F.3d 877 (4th Cir. 1995) ......................................................................... 27, 28 United States v. Hargrove, 201 F.3d 966 (7th Cir. 2000) ............................................................................. 28 United States v. Johnson, 152 F.3d 618 (7th Cir. 1998) ................................................................. 11, 12, 20 vi United States v. Lisk, 559 F.2d 1108 (7th Cir. 1977) ........................................................................... 24 United States v. Markley, 567 F.2d 523 (1st Cir. 1977) ............................................................................. 24 United States v. Martinez-Jimenez, 864 F.2d 664 (9th Cir. 1989) ............................................................................. 28 United States v. Marx, 485 F.2d 1179 (10th Cir. 1973) ................................................................... 28, 29 United States v. Mehanna, 735 F.3d 32 (1st Cir. 2013) ............................................................................... 40 United States v. Mincoff, 574 F.3d 1186 (9th Cir. 2009) ........................................................................... 44 United States v. Morningstar, 456 F.2d 278 (4th Cir.) ................................................................................ 14, 21 United States v. Oba, 448 F.2d 892 (9th Cir. 1971) ............................................................................. 17 United States v. Peterson, 475 F.2d 806 (9th Cir. 1973) ............................................................................. 24 United States v. Posnjak, 457 F.2d 1110 (2d Cir. 1972) ...................................................................... 13, 16 United States v. Ross, 458 F.2d 1144 (5th Cir. 1972) ........................................................................... 24 United States v. Rushcamp, 526 F.2d 1380 (6th Cir. 1975) ......................................................... 10, 11, 20, 28 United States v. Seven Miscellaneous Firearms, 503 F. Supp. 565 (D.D.C. 1980) ........................................................................ 15 vii United States v. Spoerke, 568 F.3d 1236 (11th Cir. 2009) ........................................................................................... 25, 26 United States v. Tankersley, 492 F.2d 962 (7th Cir. 1974) ..................................................................... passim United States v. Uzenski, 434 F.3d 690 (4th Cir. 2006) ............................................................................. 15 United States v. Williams, 553 U.S. 285 (2008) ........................................................................................... 31 United States v. Wilson, 546 F.2d 1175 (5th Cir. 1977) ........................................................................... 26 United States v. Worstine, 808 F. Supp. 663 (N.D. Ind. 1992) .................................................................... 15 United States v. Zamora, 222 F.3d 756 (10th Cir. 2000) ........................................................................... 28 Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) ............................................................................... 30, 31, 38 Virginia v. Hicks, 539 U.S. 113 (2003) ..................................................................................... 34, 35 Statutory Provisions 18 U.S.C. § 2339A(b) (2012) .......................................................................................... 1 18 U.S.C. § 2339A(b)(1) (2012) ........................................................................ 30, 31, 40 18 U.S.C. § 2339A(b)(2)(2012) ..................................................................................... 36 18 U.S.C. § 2339B (2012) ..................................................................................... passim 18 U.S.C. § 2339B(a) (2012) .......................................................................................... 1 viii 18 U.S.C. § 2339B(a)(1) (2012) ........................................................................ 31, 43, 45 18 U.S.C. § 2339B(g)(4) (2012) .................................................................................... 33 26 U.S.C. § 5845(f) (2013) ............................................................................................ 10 26 U.S.C. § 5845(f)(3) (2006) ............................................................................... passim 28 U.S.C. § 1254(1) (2006) ............................................................................................. 1 Fed. R. App. P. 32(a)(1)(C) ........................................................................................... 22 Fed. R. Crim. P. 33......................................................................................................... 9 Legislative Materials Anti–Terrorism and Effective Death Penalty Act of 1996 (AEDPA) §§ 301(a)(1)-(7), 110 Stat. 1247 ......................................................................... 38 Legal Periodicals Katherine E. Beyer, Busting the Ghost Guns: A Technical, Statutory, and Practical Approach to the 3-D Printed Weapon Problem, 103 KY. L.J. 433 (2015)...................................................................... 28 Katie Fleschner McMullen, Worlds Collide When 3D Printers Reach the Public: Modeling a Digital Gun Control Law After the Digital Millennium Copyright Act, 2014 Mich. St. L. Rev. 187 (2014) .................................................................................................. 28 Kristen A. Nardolillo, Dangerous Minds: The National Firearms Act and Determining Culpability for Making and Possessing Destructive Devices, 42 Rutgers L.J. 511 (2011) ...................... 11, 12, 15, 16, 17 Wayne R. LaFave, 1 Substantive Criminal Law § 5.2 (2d ed. 2003) .............................................. 17 ix Other Authorities C.J. Chivers, Paris Attacks: The Violence, Its Victims and How the Investigation Unfolded, N.Y. Times (Nov. 18, 2015 6:01 PM), http://www.nytimes.com/live/parisattacks-live-updates/a/?smid=tw-nytimes&smtyp =cur .............................................................................................................. 21, 22 Kelsey D. Atherton, Australian Police Warn Of 3-D Printed Gun Explosions, Popular Science (May 28, 2013), http://www.popsci.com/technology/article/201305/australian-police-warn-3-d-printed-gun-failures ........................................ 27 Lucas Mearian, U.S. State Department Moves to Block 3D-printed Gun Plans Online, Computerworld (Jul. 7, 2015, 9:32AM), http://www.computerworld.com/article/2 944477/3d-printing/us-state-department-moves-toblock-3d-printed-gun-plans-online.html .......................................................... 23 National Firearms Act (NFA),Bureau of Alcohol, Tobacco, Firearms and Explosives (2015), https://www.atf.gov/rules-and-regulations/nationa lfirearms-act ....................................................................................................... 10 x STATEMENT OF JURISDICTION The judgment of the United States Court of Appeals for the Fourteenth Circuit was entered on October 1, 2015. R. at 1. The petition for a writ of certiorari was granted. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1) (2006). OPINIONS BELOW The opinion of the United States District Court for the Central District of New Tejas is unreported. The opinion of the Fourteenth Circuit is also unreported and set out in the record. R. at 2–27. STATUTORY PROVISIONS INVOLVED This case involves a portion of the “destructive device” definition statute within the National Firearms Act, 26 U.S.C. § 5845(f)(3) (2006). See App. A. This case also involves two statutes within Section 303 of the Antiterrorism and Effective Death Penalty Act of 1996, 18 U.S.C. § 2339B(a) (2012) and 18 U.S.C. § 2339A(b) (2012) See Apps. B, C. STATEMENT OF THE CASE This is a case about the United States government’s efforts to evolve national security laws and protect American citizens against the rapidly changing ways in which terrorists operate. It raises important questions about 3D-printed weapons and about communicating potentially dangerous computer code to known terrorist organizations. Foreign Terrorist Organization Leader’s Move to Azran. Emmaline Borne, a student living in Harrisburg, New Tejas, was arrested one day before she 1 could leave the United States and meet with the leader of a Foreign Terrorist Organization (FTO). R. at 5, 15. The FTO is Dixie Millions, which is a hacker duo reportedly responsible for “numerous hacks or hack attempts of the United States Milnet, CIA, FBI, the IMF, Interpol, Google, foreign banks, and other government and business interests around the globe.” R. at 5. The FTO leader is Clive Allen, a formerly a former National Security Agency (NSA) consultant. R. at 5. Allen’s employment ended in November 2011 when he released “millions of documents he illegally stole from the NSA to the Darknet through The Onion Router (TOR) protocol using his TOR client.” Id. The Darknet’s general purpose is subversion of the law. Id. Allen released the stolen documents, declared that he was the “Millions” of Dixie Millions, and disappeared. Id. United States law enforcement agencies conducted a nationwide manhunt in search of Allen, and the Secretary of State declared him a criminal. Id. For three months afterward, “numerous” websites fell victim to hacking attacks and unauthorized, “scandalous” document releases. R. at 5–6. In March 2012, Allen announced via video that he had relocated to the European country of Azran. R. at 6. He released confidential government documents to the Azranian government, and the government granted him asylum. Id. Borne’s Plan to Reach Azran. In November 2011, just one day prior to Allen’s initial document leak, Borne completed and submitted her application to a pre-college study abroad program called “Technical Promise.” R. at 2, 4. Technical Promise was located at the University of Misthallery in Azran. Id. She applied together with her friend Fiona Triton and with the help of her physics teacher Adalida 2 Ascot. R. at 2. Borne indicated she was interested in the program because of her interest in computer programming. Id. While applying, Borne and Triton each met with Ascot individually, and Borne and Ascot even played computer games with each other socially. R. at 4. After submitting their applications, Borne and Triton became closer friends and agreed to become college roommates. Id. In February 2012, the two learned they had been accepted into the program, which lasted from June to August 2012. R. at 4–5. Borne’s Preparations for Azran. Borne and Triton’s preparations for their trip to Azran further intensified in March and April, around the same time Allen publically disclosed his presence in that country. R. at 6. Additionally, Triton’s father, Hershel Triton, acquired a brand new 3D printing kit in April. R. at 6–7. Hershel, who was an engineer for an American weapons manufacturer, sought to make a strong 3D-printable filament with the kit. R. at 7. And he soon enlisted Borne’s help in the filament’s creation. Id. Borne, in turn, enlisted Ascot’s help with creating the computer code that would create a filament in the shape of a perfect cylinder. Id. During their partnership, Borne and Ascot discussed hacks that Dixie Millions recently conducted. R. at 8. Ascot encouraged Borne that Allen, an international fugitive, was a clever, admirable person. Id. She said Dixie Millions were “White Hat,” good-intentioned hackers. Id. Borne turned the code over to Ascot, who took it home and perfected it. Id. Borne and Triton’s Weapons Tests and Hacker Research. On May 1, Ascot gave Borne the perfected code. Id. On May 2, Borne, Triton, and Triton’s father 3 printed out a plastic filament model. R. at 9. On May 3, Triton’s father downloaded plans to design and print a handgun on a 3D printer on a solid gold portable digital storage unit (USB drive). Id. On May 4, Ascot, Borne, and Triton met one more time about the Azran trip, and she reminded them to always wear the “White Hat.” Id. Finally, on May 5, Borne and Triton’s father printed an essentially perfect cylinder, which he realized could be useful for firearms tests. R. at 10. He gave the cylinder to Borne. Id. He continued to work with his daughter to make a stronger plastic filament cylinder formula, and his daughter stole that formula, downloading it onto a separate robot-shaped USB drive. R. at 10–11. Borne simultaneously researched Allen, who she came to view as an “excellent role model” of a “White Hat Hacker.” R. at 11. She conducted extensive Darknet research, creating an exhaustive spreadsheet of Allen’s known locations in Azran. R. at 11–12. Through this research, she deduced he would be at the University of Misthallery campus café on June 5 and marked the event on her phone’s calendar as: “Meet Clive Allen at Café.” R. at 12. Borne and Triton Attempt to Leave the U.S. On June 3, Triton packed her robot USB drive with the filament formula for her Azran trip. Id. Similarly, Borne packed her duffle bag with a purple USB drive with the curve code, the near-perfect cylinder, the spreadsheet of Allen’s known locations, and a figurine that looked like Allen. Id. Borne planned to show her research to Allen. Id. Borne’s bag also contained matches, and she packed an 11-ounce full-size can of hairspray. Id. 4 On June 4, Borne, Triton, and Triton’s father all left for the airport together. R. at 13. Triton’s father brought the gold USB drive containing the 3D-printable gun plans and music that the girls liked. Id. A police officer, Officer Smith turned on lights and sirens and began following their vehicle because Triton’s father was speeding. Id. Triton’s father did not pull over until a half-mile later. Id. After pulling them over, Officer Smith noticed Borne pulling out her cell phone. R. at 15. He then saw the calendar reminder to “Meet Clive Allen” flash on the screen. Id. Because Officer Smith had received notice from the FBI that Allen might have an associate in the area, he immediately arrested the two girls “on suspicion of aiding and abetting a known fugitive.” Id. Police Uncover the Stash of Dangerous Items. After bringing the trio to the Harrisburg Police Station, the police uncovered the following items: (1) the robot USB drive with the filament formula; (2) the purple USB drive with the curve code, the Allen location spreadsheet, and the picture of Allen’s computer game character; (3) Borne’s matches, hairspray, and cylinder; and (4) the gold USB drive with the 3Dprintable gun plans. Id. Ascot learned about her friends’ arrests in the local paper, “hurriedly quit her job,” and fled her home. Id. She has not since been located. Id. The U.S. Attorney filed charges against Borne, Triton, and Triton’s father. Id. Triton and her father agreed to guilty plea bargains. Id. Borne refused to plead guilty against the advice of her attorney. R. at 16–17. The District Court. The prosecution introduced evidence of Borne’s online activity, including her interest in meeting Dixie Millions members. R. at 18. The FBI 5 was nearly certain that Ascot was “Dixie” of Dixie Millions, and Borne said it would be “pretty cool” to have been mentored by an “elite White Hat Hacker[].” Id. Borne’s Twitter account reflected that she retweeted pro-Dixie Millions articles and once tweeted: “With one wish, I wish all guns would blow up.#guncontrol.” Id. An FBI ballistics expert testified that the “plastic filaments formula on the cartoon robot USB drive, combined with the gun plans on the golden USB drive, would create a device that . . . would actually always blow up when fired, causing significant bodily harm or death to the user of the device and anyone standing in close proximity to the user.” Id. Additionally, the ballistics expert demonstrated that “the hairspray, matches, 3D-printed cylinder, and other miscellaneous items” in Borne’s luggage “could be used to make a bomb.” Id. Further, the expert testified “a bright teenager could obtain the knowledge on the internet to create such a device.” Id. Borne 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 a concurrent fifteen years in prison. Id. The Appellate Court. On appeal, the Fourteenth Circuit affirmed all of the district court’s findings, including both of Borne’s convictions. Id. Borne petitioned this Court, and certiorari was granted. Id. 6 SUMMARY OF THE ARGUMENT I. The district court properly charged Borne under 26 U.S.C. § 5845(f)(3). The Fourteenth Circuit properly applied a mixed standard to examine whether the items in Borne’s possession fell within the statutory definition of a destructive device. The standard first examines the objective purpose of the items in question and then, if necessary, examines evidence of the defendant’s subjective intent. A mixed standard is one that best prevents the ambiguities of a purely subjective standard and the absurdities that could result from a purely objective standard. Borne’s 3D gun plans, matches, plastic cylinder, hairspray, and plastic filament formula all constituted components that were designed or intended for use in converting a device into a destructive device. Though the hairspray and matches are ordinary household products, a legitimate social application, it could be used with other items in Borne’s possession to make a destructive device. And though the 3D gun plans, cylinder code, and filament formula could be used for the advancement of societal knowledge, that observation does not limit this Court’s analysis. Further, Borne possessed components for two destructive devices that one could readily assemble. Trial experts demonstrated that Borne’s matches, plastic cylinder and hairspray could form a primitive pipe bomb. And the 3D gun plans with the filament formula could be used to manufacture a gun within hours—one that would explode and cause great bodily harm or death to those in near proximity. Any ruling to the contrary would grievously inhibit the government’s ability to protect United States citizens from foreign terrorist organizations. 7 Such organizations increasingly rely on isolated individuals and makeshift explosives to cause harm at home and abroad. This Court should allow national security agencies to keep pace with these changing methods. II. The district court properly prosecuted Borne under 18 U.S.C. § 2339B. The Fourteenth Circuit properly held that 18 U.S.C. § 2339B (Section 2239B) is constitutional. The statute is not vague on its face because it contains a scienter requirement. Additionally, the statute aims to punish conduct, rather than speech, and it is valid in most, if not all, of its intended applications. Further, the statute is not overly broad because overbreadth challenges succeed only in extraordinary instances, and in this instance, Borne does not allege a situation in which the statute infringes upon protected speech. Finally, the statute is not overbroad as applied to Borne because her conduct fell within the ordinary meaning of the terms “training.” Further, this Court should reject Borne’s challenge to the sufficiency of the evidence sustaining her conviction under Section 2339B. She provided, or in the alternative at least attempted to provide, support for Dixie Millions, a Foreign Terrorist Organization. Further, that support was material training and material expert advice and assistance because Borne attempted to provide Dixie Millions with 3D gun plans, a cylinder code, and a filament formula, which together could be used to manufacture firearms and explosive devices. Finally, even if this FTO could have acquired Borne’s plans, code, and formula through its own resources, the support was still material because Dixie Millions could redirect those resources elsewhere. This Court should affirm the Fourteenth Circuit’s judgment in all respects. 8 ARGUMENTS & AUTHORITIES This is an appeal of the denial of a motion for new trial. Fed. R. Crim. P. 33. Both issues on appeal involve purely legal questions subject to de novo review. See United States v. Fredman, 833 F.2d 837, 838 (9th Cir. 1987) (reviewing de novo a district court’s conclusion of whether unassembled explosives constituted a “destructive device”); see United States v. Farhane, 634 F.3d 127, 134 (2d Cir. 2011) (reviewing de novo vagueness and overbreadth challenges to 18 U.S.C. § 2339B). They next involve challenges to the sufficiency of Borne’s convictions, under which courts must “consider the evidence in the light most favorable to the government, drawing all reasonable inferences and making all credibility choices which support the [factfinder’s] verdict.” Glasser v. United States, 315 U.S. 60, 80 (1942). The evidence is sufficient to support 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) (emphasis in original). I. BORNE CAN BE CHARGED UNDER 26 U.S.C. § 5845(F)(3) FOR MAKING AN EXPLOSIVE DEVICE BY DESIGNING AND FABRICATING FIREARM PARTS ON A 3D PRINTER. Enacted as part of the National Firearms Act, 26 U.S.C. § 5845(f) defines a destructive device as “1) any explosive, incendiary, or poison gas…; (2) any type of weapon …which may be readily converted to, expel a projectile by the action of an explosive or other propellant…; and (3) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subparagraphs (1) and (2) and from which a destructive device may be readily assembled.” 9 26 U.S.C. § 5845(f) (2013). The purpose of the Act was to regulate certain firearms and devices because of the significant crime problem created by their frequent use in organized criminal activity. National Firearms Act (NFA), Bureau of Alcohol, Tobacco, Firearms and Explosives (2015), https://www.atf.gov/rules-and- regulations/national-firearms-act. The Fourteenth Circuit properly applied the mixed standard—which incorporates both an objective and a subjective inquiry into a defendant’s intent—to examine the sufficiency of Borne’s conviction under 26 U.S.C. § 5845(f)(3). United States v. Rushcamp, 526 F.2d 1380, 1382 (6th Cir. 1975). Using that standard, the Fourteenth Circuit properly upheld Borne’s conviction. When arrested, Borne possessed 3D gun plans on a USB that could be used to massproduce a completed explosive in a matter of hours. R. at 21. Those plans could be used to cause death or serious bodily harm to the individual and those around her. Id. Whether or not the final device would function as she intended is irrelevant. In addition, Borne possessed matches, a plastic cylinder, and hairspray, which she could readily fashion into a pipe bomb. R. at 20–21. This Court cannot allow revolutionary technology to outpace the government’s means of protecting its citizens. Accordingly, the Fourteenth Circuit’s ruling must be affirmed. 10 A. The Fourteenth Circuit Properly Applied a Mixed Standard that First Examines the Objective Use of Items in a Defendant’s Possession and Then, if Necessary, the Defendant’s Subjective Intent. In considering whether unassembled parts could be combined to create a prohibited destructive device, courts have historically applied three standards: the mixed standard, the objective standard, and the subjective standard. R. at 19; Kristen A. Nardolillo, Dangerous Minds: The National Firearms Act and Determining Culpability for Making and Possessing Destructive Devices, 42 Rutgers L.J. 511, 520 (2011). Under the mixed standard, courts evaluate (1) whether the destructive device could be used for either nefarious or innocuous purposes; and (2) if the item can be used for nefarious purposes, the intent of the defendant. United States v. Johnson, 152 F.3d 618, 624 (7th Cir. 1998); United States v. Rushcamp, 526 F.2d 1380, 1382 (6th Cir. 1975). The increasing recruitment of naïve, unsuspecting individuals by terrorist groups, coupled with significant technological advancements that have changed the landscape of modern weaponry, makes the mixed standard the most effective method to address the underlying concerns presented by prohibited destructive devices. R. at 19–20; see also Nardolillo, supra, at 527. This standard not only protects the public against the severe harm and loss of life that result from attacks carried out by homemade weapons but also protects truly innocent defendants from criminal prosecution for items that are solely intended to achieve valuable societal advancement and further technological exploration. R. at 19–20; Johnson, 152 F.3d 11 at 624. Therefore, the Fourteenth Circuit properly applied the standard in Borne’s case. 1. The mixed standard effectively protects against the ambiguities of the subjective standard and the limitations of the objective standard. Because of terrorist groups’ increasingly common recruitment of ordinary American citizens, coupled with significant technological advancements that have changed the landscape of modern weaponry, the mixed standard is the most effective method to address the underlying concerns presented by destructive devices prohibited under 26 U.S.C. § 5845(f)(3). R. at 19–20; see also Nardolillo, supra, at 527. This standard not only protects the public against the severe harm and loss of life that result from attacks carried out by homemade weapons but also protects truly innocent defendants from criminal prosecution for items that are solely intended for innocuous purposes to achieve valuable societal advancement and further technological exploration. R. at 19–20; Johnson, 152 F.3d at 624. The first inquiry mandated by the mixed standard is whether the objective characteristics of the device or its component parts may be used only as a weapon. Johnson, 152 F.3d at 628. If the objective characteristics of the device evidence that it can only be used for destructive purposes, the inquiry ends and subjective intent is not considered because in those instances, it is clear that the device meets the statutory definition of a prohibited destructive device. Id. However, if the unassembled component parts form a device that could have legitimate social or commercial purposes, then subjective intent should be considered. Id. 12 The Fourteenth Circuit held that Borne possessed objects that could be readily assembled into two destructive devices when she was arrested: (1) the primitive pipe bomb, composed of the matches, hairspray, and plastic cylinder; and (2) the completed bomb, composed of the 3D gun plans. R. at 19. The primitive pipe bomb could be assembled by combining the unassembled parts that each had innocuous purposes. The Fourteenth Circuit applied the second prong of the mixed standard because a failure to consider intent when the parts could have been used to create a weapon would lead to absurd results. R. at 19. If the court applied a purely objective test and ended its inquiry at the objective standard, then criminals could freely possess seemingly innocuous items without scrutiny, which they could turn into destructive devices capable of inflicting widespread damage within a moment’s notice. See R. at 20. In fact, even courts that have typically applied an objective standard realize that the inquiry cannot end there when component parts could have beneficial or destructive uses, and accordingly recognize the necessity of a more nuanced inquiry into consideration of intent. United States v. Posnjak, 457 F.2d 1110, 1119 (2d Cir. 1972). For example, in United States v. Tankersley the defendants possessed a soda bottle, a firecracker, tape, and paint remover. United States v. Tankersley, 492 F.2d 962, 965 (7th Cir. 1974). Although these items individually have undisputed social utility, in combination they form a widely recognized destructive device—a Molotov cocktail. Id. at 966. Under these circumstances, the Seventh Circuit held that the intent of the defendant is relevant under 26 U.S.C. § 5845(f)(3) to establish liability 13 where a destructive device can be readily assembled from seemingly innocuous household items. Tankersley, 492 F.2d at 965 (7th Cir. 1974). The Molotov cocktail, like Borne’s pipe bomb, had no use other than for utter destruction. Id. The mixed standard properly captures this harmful conduct, while a purely objective standard would leave the public susceptible to defendants in possession of widely recognized incendiary bombs. See id.; see also United States v. Davis, 313 F. Supp. 710, 714 (D.Conn.1970). The Fourth Circuit in United States v. Morningstar considered a similar issue, in which the defendant possessed commercially used dynamite and unattached blasting caps. United States v. Morningstar, 456 F.2d 278, 279–80 (4th Cir.). Like the Seventh Circuit, the court required consideration of the defendant’s intent because the plain language of the statute applies to a combination of parts designed or intended to convert any device into a destructive device. Id. (emphasis added); 26 U.S.C. § 5845(f)(3). Similar to the defendants in Tankersley and Morningstar, Borne possessed two items that individually had ordinary social uses and possessed another item, a plastic cylinder, which did not. R. at 20–21. The 3D gun plans, used in conjunction with a 3D printer, could create a gun that functioned as a bomb when the user pulled the trigger. R. at 21. It could have no social use like commercial dynamite does. As a result, the mixed standard inquiry ends at the objective characteristics of the 3D firearm plans. 14 Furthermore, Borne possessed matches, hairspray, and a plastic cylinder that could be readily combined to produce a pipe bomb. R. at 20–21. Regardless, the social uses of these items is transformed by Borne’s intent: a determination to meet Clive Allen, a wanted terrorist who spearheaded Dixie Millions, a designated FTO, to show him how her 3D printing plans could produce a perfect cylinder that could be used as the foundation for a pipe bomb, in addition to producing an exploding gun. R. at 5, 21. In light of Borne’s intent to turn over the items needed to create an exploding gun to a wanted terrorist, the Fourteenth Circuit found that Borne’s terrorist sympathies required heightened scrutiny of her actions, particularly in light of the growing recruitment of unsuspecting individuals by sophisticated terrorist organizations to create homemade weapons out of unassembled, ordinary household items. R. at 20. Courts that apply a mixed standard examine a variety of factors to evaluate intent. Nardolillo, supra, at 531. These non-exhaustive factors include: (1) whether there is expert testimony that the destructive device will likely be used in a destructive way; (2) whether the proximity of various suspicious objects would change a device into a destructive device; (3) whether the defendant is or has been involved in criminal or terrorist activities; and (4) the length of time required to readily assemble an inoperable object to a destructive device. See United States v. Uzenski, 434 F.3d 690, 703–04 (4th Cir. 2006); United States v. Fredman, 833 F.2d 837, 840 (9th Cir. 1987); United States v. Worstine, 808 F. Supp. 663, 670 (N.D. Ind. 1992); United States v. Seven Miscellaneous Firearms, 503 F. Supp. 565, 573 (D.D.C. 1980). Applied to Borne’s stated intent to release the items to a known terrorist, in 15 conjunction with the fact that the 3D plans could mass-produce explosive devices in a matter of mere hours, the Fourteenth Circuit properly held under the mixed standard that Borne’s destructive devices were expressly prohibited by 26 U.S.C. § 5845(f)(3). See R. at 20. 2. The objective standard fails to afford sufficient protections against the use of homemade weapons, even when a defendant openly admits the uncontroverted destructive intended purpose of the device. In United States v. Posnjak, the Second Circuit promulgated a purely objective test and ruled that the defendant was not liable for a destructive device under 26 U.S.C. § 5845(f)(3), even though he admitted that the end use of the device was the destruction of buildings and life. United States v. Posnjak, 457 F.2d 1110, 1112 (2d Cir. 1972). Posnjak sold 4,100 sticks of nitroglycerine dynamite, along with unattached fuses and caps, to an undercover federal agent who explicitly informed him that the dynamite would be used by a Cuban revolutionary group to inflict mass destruction. Id. Though the court recognized the “brutal indifference to the anticipated devastating consequences of the sale,” the court refused to impose criminal liability on the defendant solely because dynamite could be used commercially. Id. at 1112–16. Posnjak’s construction of the intent prong undermines the teeth of 26 U.S.C. § 5845(f)(3) and ignores its express language incorporating the design or intent of the device. Nardolillo, supra, at 535. By operation, the objective standard fails to protect the public against the threat to life and property posed by the destructive devices of defendants who intend such devices for purely destructive purposes. This ignores the 16 interest that society as a whole has in ensuring that people are not making destructive devices that could severely harm or kill others. Id. 3. The subjective standard can only be effective in the narrow circumstances when a criminal defendant willingly and truthfully admits the requisite intent for the commission of a charged crime. The Fourteenth Circuit recognized that even the most mundane household items can help cause destruction, and it properly rejected a purely subjective standard of evaluating whether objects fall under the definition of a “destructive device.” See R. at 20. The subjective standard, which Borne requested, does not hold terrorists culpable in many situations when they simply deny their intent in conjunction with unassembled explosive parts and with such household items. R. at 19. Articulated by the Ninth Circuit in United States v. Oba, the subjective standard exclusively considers the defendant’s stated purpose for possession of the items. United States v. Oba, 448 F.2d 892, 894 (9th Cir. 1971). Oba was a straightforward case because the defendant readily admitted that he intended to “dynamite the City of Eugene, Oregon” and bomb and destroy the property of others. See id. However, this case is the exception, not the rule. In most cases, it will be incredibly problematic for judges and juries to weigh a defendant’s intangible, private intent. Nardolillo, supra, at 521. This is because criminal defendants do not generally admit to having the requisite intent for the commission of the crimes with which they are charged. Wayne R. LaFave, 1 Substantive Criminal Law § 5.2, 357 (2d ed. 2003). 17 In Oba, the defendant waived the protections of the Fifth Amendment privilege against self-incrimination through his admission of guilt pursuant to his guilty plea. Oba, 448 F.2d 892 at 894. Within the confines of the guilty plea context, which inherently involve the waiver of Fifth Amendment protections, the subjective standard could be applied suitably. See Boykin v. Alabama, 395 U.S. 238, 243 (1969). However, in the case at bar Borne elected to proceed to trial without an admission of guilt, forgoing entering into a plea like the defendant in Oba. R. at 17. In this case, for instance, Borne could simply refuse to admit to having the requisite intent under the subjective standard and escape liability under 26 U.S.C. § 5845(f)(3). This result that would render the statute meaningless when defendants either invoke the Fifth Amendment privilege or lie about their true intentions. Finally, the subjective standard fails to address the negative consequences of exclusively considering subjective intent in the modern-day context. As the Fourteenth Circuit below recognized, “terrorists often attempt—very successfully— to recruit innocent and naïve individuals to help them in their terrorist plots.” R. at 20. From a practical standpoint, leaders in terrorist organizations can commission unsuspecting individuals ignorant of the device’s end use to create a destructive device that can cause mass destruction, one which the United States actively seeks to prohibit for that exact reason under 26 U.S.C. § 5845(f)(3). Under the subjective standard, those responsible for the production of the destructive device, or those responsible for its commission, would be able to escape punishment simply because they would not, or could not, profess a subjective intent 18 that the device would be used for terrorist activities. Accordingly, the Fourteenth Circuit appropriately adopted and applied the mixed standard to Borne’s conviction under 26 U.S.C. § 5845(f)(3). B. A Rational Fact-Finder Could Find that Borne Possessed a Destructive Device as Defined by 26 U.S.C. § 5845(f)(3). The Harrisburg Police and the Federal Bureau of Investigation presented sufficient evidence to the U.S. Attorney to charge Borne with possessing an explosive device. After obtaining the necessary search warrants for the Tritons’ vehicle, the Harrisburg Police found: (1) matches, (2) hairspray, (3) the 3D-printed cylinder, (4) a USB drive containing the requisite code to produce a stronger plastic filament on a 3D printer, (5) a USB drive containing code for a perfect cylinder; and (6) a USB drive containing plans for a 3D-printed gun. R. at 16. Based on the evidence, the FBI expanded the police investigation to encompass individuals who had come into contact with Borne for the past year, including her former teacher, Ascot, who had already fled her home upon learning of Borne’s arrest. R. at 16. Accordingly, the U.S. Attorney charged Borne for a destructive device under 26 U.S.C. § 5845(f)(3) and she was convicted at trial. R. at 16, 18. A rational trier of fact could have found the prosecution successfully established each element of Borne’s conviction—as the district court did in this case. First, the objective nature of her 3D gun plans, hairspray, and plastic filament formula constituted a weapon. But second, even if this court were to look past these items’ objective nature, Borne had the subjective intent to use these items to create 19 an explosive device. Finally, the items in her possession could be readily assembled into an explosive device. 1. The objective nature of Borne’s 3D gun plans, hairspray, and plastic filament formula each constituted a weapon. The evidence before the trial court established that the objective nature of Borne’s 3D-printable gun plans, hairspray, and plastic filament formula were component parts intended for use in converting a device into a destructive device. Courts evaluate whether the items could be used for either destructive or social purposes; and if the item can be used for destructive purposes, the intent of the defendant, because an inapposite inquiry would ignore the reality of modern weaponry. See Johnson, 152 F.3d at 624; see also Rushcamp, 526 F.2d at 1382; R. at 20. Although Borne argues that the individual items were intended for social uses, the Fourteenth Circuit properly rejected that argument because ignoring the capability of component parts that could convert a normal device into an explosive or destructive device would leave the public vulnerable to the threat of terror attacks resulting from the combination of seemingly innocuous items. R. at 20, 21. The court rejected Borne’s argument that the court should confine its inquiry to the possible objective use of individual items because “[a]ny explosive device could be reduced to its individual components, each of which could in turn be deemed innocuous.” R. at 20. Although Borne argued that the hairspray could be used for its intended social purpose in isolation, that argument does not address the proper inquiry—which 20 evaluates all of the component parts together despite the undisputed social utility of the individual items. See Tankersley, 492 F.2d at 965. Courts analyze the component parts together because even though items may have social utility on their own, together they can be combined to form a destructive device. Id. For example, a soda bottle, a firecracker, tape, and paint remover each have social utility on an individual level. Id. If the court were to end its inquiry here, as Borne suggests it should, then a defendant would be allowed to possess and later combine the component parts to form a widely recognized and duly prohibited destructive device—a Molotov cocktail. Id. at 966. The same is true for items like commercial dynamite and unattached blasting caps, which each have independent social uses, including use on construction sites, but together can be used to form a prohibited destructive device. Morningstar, 456 F.2d 278, 279–80 (4th Cir.). The Islamic State recently claimed responsibility for bombing a Russian airplane. C.J. Chivers, Paris Attacks: The Violence, Its Victims and How the Investigation Unfolded, N.Y. Times (Nov. 18, 2015 6:01 PM), http://www. nytimes.com/live/paris-attacks-live-updates/a/?smid=tw-nytimes&smtyp=cur. The organization released a photograph of the bomb that caused the airplane to crash, and that photo is presented below: 21 Chivers, supra.1 The device consists of an aluminum can, black tape, small batteries, minimal wiring, and a blasting cap. Such an attack, through such an innocuouslooking object, demonstrates how terrorists use household items to disguise their destructive intent, such as Borne attempted to disguise her destructive intent in this case. Similarly, the Fourteenth Circuit rejected the argument that the items were intended for the “advancement of societal knowledge” because arguably any device could be related to the advancement of societal knowledge while also being capable of inflicting mass destruction. R. at 21. One such example is the United States government’s development of an atomic bomb as part of the Manhattan Project, as the Fourteenth Circuit noted. R. at 21. Although the Government commissioned The Federal Rules of Appellate Procedure allow for the reproduction of photographs in briefs. Fed. R. App. P. 32(a)(1)(C). Although commentators noted that this picture could be mere propaganda, rather than the actual bomb used in the attack, several bomb-disposal technicians agreed that “it would not be hard for an experienced bomb maker to build.” Chivers, supra. 1 22 scientists to launch the Trinity Test, creating and exploding an atomic bomb in New Mexico, the advancement of societal knowledge does not render an atomic bomb anything less than a destructive device. R. at 21. Similarly, though 3D printable plans and code could arguably relate to the advancement of societal knowledge, the resulting guns are inherently weapons and in this case, properly regulated destructive devices. Although Borne may speculate that the curve code or plastic filament plans may independently have a social use or be directed towards the advancement of societal knowledge, the items could undisputedly be used as an explosive device. R. at 10, 19. This is especially problematic because with the rise of the Internet, the plans to make harmful weapons on 3D printers can be easily downloaded by anyone from anywhere, like the ones downloaded to Borne’s USB drive. R. at 10. In fact, prior to the State Department intervening in July 2015, an easily accessible website that offered blueprints for a completed 3D-printed handgun in addition to nine other 3Dprintable firearm component parts, including a 30-round magazine and the lower receiver of an AR-15 semi-automatic assault rifle. Lucas Mearian, U.S. State Department Moves to Block 3D-printed Gun Plans Online, Computerworld (Jul. 7, 2015, 9:32AM), http://www.computerworld.com/article/2944477/3d-printing/us-statedepartment-moves-to-block-3d-printed-gun-plans-online.html. In only two days, the plans had been downloaded more than 100,000 times. Id. In addition to the cylinder curve code, the 3D gun plans, contained on Borne’s USB drive, could independently produce a completed bomb designed to cause death 23 or serious bodily harm to the individual and those in her immediate vicinity. R. at 8, 21. An FBI ballistics expert conducted several tests on the 3D-printed device and found that the device would consistently explode when fired, either killing or injuring the user and anyone in close proximity. R. at 18. An explosive device under 26 U.S.C. § 5845(f)(3) is not prohibited only because it explodes but because of the “plus factor” that it was designed as a weapon. United States v. Hammond, 371 F.3d 776, 780 (11th Cir. 2004). Unlike the defendant in Hammond, who concocted a homemade firecracker out of a cardboard toilet paper roll and explosive powder, Borne’s 3D-printed gun was inherently designed to expel projectiles, meeting the requisite test for a “plus factor.” Id. Based on the statute’s explicit use of the disjunctive “or” (“designed or intended for use in converting any device into a destructive device”) courts consistently hold that the evidence presented by the government is sufficient if it meets either prong. 26 U.S.C. § 5845(f)(3); See United States v. Lisk, 559 F.2d 1108, 1109–11 (7th Cir. 1977); see also United States v. Markley, 567 F.2d 523, 524–27 (1st Cir. 1977); see also United States v. Cruz, 492 F.2d 217, 219 (2d Cir. 1974); see also United States v. Peterson, 475 F.2d 806, 807–11 (9th Cir. 1973); see also United States v. Ross, 458 F.2d 1144, 1145–46 (5th Cir. 1972). Because a gun is inherently and exclusively designed as a weapon, the evidence sufficiently established that the combination of items was designed or intended for use in creating an explosive device. 24 2. Borne subjectively intended to use her 3D gun plans, hairspray, and plastic filament formula individually as weapons. Furthermore, Borne’s subjective intent proves that the items were intended for use as a weapon. R. at 20. Borne intended to give the USB drives to Allen, who is actively sought by the U.S. Department of State as the leader of Dixie Millions, an undisputed Foreign Terrorist Organization. Id. And she had previously, publically expressed an interest in exploding guns. R. at 19. Borne wanted more than a role model. She wanted a mentor who could show her how to most effectively use items such as the exploding gun. And Allen’s intent, as the head of an FTO, was “impure” as well, as the Fourteenth Circuit noted. R. at 20. 3. The evidence established that the individual items could be readily assembled into an explosive device. The evidence before the trial that the individual items could be combined to create two separate destructive devices. The matches, hairspray, and 3D-printed plastic cylinder could be combined to create a pipe bomb. R at 20–21. Furthermore, the 3D gun plans and plastic filament formula would allow a 3D printer to produce a gun that would itself result in a completed bomb capable of inflicting harm on the user and those in her immediate vicinity. R. at 21. a. The matches, plastic cylinder, and hairspray could be readily assembled into a pipe bomb. The statutory prohibition on destructive devices applies with full force to improvised explosive devices assembled from seemingly innocuous items, including both pipe bombs and Molotov cocktails. United States v. Spoerke, 568 F.3d 1236, 1241 (11th Cir. 2009); United States v. Campbell, 685 F.2d 131, 132 (5th Cir. 1982). The 25 Eleventh Circuit, in a factually analogous case, explicitly held that a pipe bomb is a prohibited destructive device under 26 U.S.C. § 5845(f)(3). Spoerke, 568 F.3d at 1241. In Spoerke, improvised explosive devices that would function as pipe bombs were discovered in the defendant’s car, with the component items of polyvinyl chloride (PVC) pipe, explosive powder, and a cigarette lighter. Id. at 1241–42. The government’s expert testimony showed that the bombs were designed as weapons and lacked any social or commercial use. Id. at 1247. Particularly, the evidence showed that the device propelled fragments capable of harming any one in its vicinity. Id. Although the defendant claimed that the purpose of the pipe bombs was to watch them explode underwater in canals, the court found the evidence sufficient to sustain the defendant’s conviction. Id. at 1242, 1247. The Fifth Circuit in United States v. Campbell considered companion appeals under 26 U.S.C. § 5845(f)(3) based on (1) a destructive device composed of flammable liquid and gun powder with gun powder and a candle, and (2) a destructive device comprised of cloth rags, flammable liquid, and a fuse of incense sticks. Campbell, 685 F.2d at 132. Even though the bomb’s components may all be legally possessed, the design or intent to convert a device into a destructive device based on those items sufficiently supports an indictment under the statute. Id. Similarly, the components of Molotov cocktails—gasoline, a bottle, and rags—may be legally possessed individually but combined form an undisputed destructive device. Id. (citing United States v. Wilson, 546 F.2d 1175, 1177 (5th Cir. 1977)). 26 Furthermore, the Seventh Circuit in United States v. Tankersley upheld the defendant’s charges and conviction under 26 U.S.C. § 5845(f)(3) based on the sufficiency of the evidence found, including: a firecracker, a fuse, twine, a can of paint, and paint remover. Tankersley, 492 F.2d at 965. The court found that the defendant was properly indicted and convicted for the possession of a destructive device based on the component parts, which could be combined to create an incendiary bomb. Id. In the case at bar, the matches, hairspray, and 3D printed plastic filament printed from the plans on Borne’s USB drive together create a prohibited pipe bomb. R at 20–21. Because the component parts of a pipe bomb are consistently prohibited under 26 U.S.C. § 5845(f)(3), the sufficiency of the evidence sustains Borne’s charges and conviction. b. The 3D gun plans could be used to readily assemble a completed bomb within a matter of hours. Analyzed under the same controlling cases, the 3D gun plans are likewise prohibited as a destructive device. The Fourteenth Circuit found that the intended device, which functioned as a completed bomb, could be mass-produced in a matter of hours. R. at 21. The court also found it particularly troubling that based on technological advances, digital items like the 3D gun plans can be converted to tangible items in the blink of an eye. R. at 21. Recognizing that the law must encompass changing realities in how destructive devices can be created with ease, the Fourteenth Circuit sustained Borne’s conviction. Although the gun functioned as a bomb instead of a typical handgun, the resulting explosive device was still prohibited as a destructive device. In fact, the 27 functionality of a device has no relevance to the statutory analysis. United States v. Hamrick, 43 F.3d 877, 881 (4th Cir. 1995). The dangers of technological advances falling into the wrong hands of terrorists create a strengthened impetus for prohibition of such destructive devices. See R. at 21. And 3D-printed guns, still an evolving weapon type, are prone to exploding when they are fired. See R. at 21; Kelsey D. Atherton, Australian Police Warn Of 3-D Printed Gun Explosions, Popular Science (May 28, 2013), http://www.popsci.com/technology/article/2013-05/australian-policewarn-3-d-printed-gun-failures. In fact, it is well recognized that 3D printing will have “geopolitical, economic, social, demographic, environmental, and security implications.” Katie Fleschner McMullen, Worlds Collide When 3D Printers Reach the Public: Modeling a Digital Gun Control Law After the Digital Millennium Copyright Act, 2014 Mich. St. L. Rev. 187, 190 (2014). 3D-printed gun plans can be downloaded off the Internet from anywhere in the world, allowing the public to print a lethal device wherever there is a computer and an Internet connection. Katherine E. Beyer, Busting the Ghost Guns: A Technical, Statutory, and Practical Approach to the 3-D Printed Weapon Problem, 103 KY. L.J. 433, 439 (2015). The changing landscape allows a terrorist to open a gun factory in her garage, and accordingly is properly prohibited under the National Firearms Act. See Id. Whether or not the gun functioned as intended, the device is prohibited under 26 U.S.C. § 5845(f)(3) because as the Fourth Circuit found in United States v. Hamrick, an inapposite result would allow poor workmanship to excuse criminal liability. Hamrick, 43 F.3d at 881; see also Rushcamp, 526 F.2d at 1382. Unsuccessful 28 attempts at committing crimes, even when devices or weapons are dysfunctional or incapable of functioning as intended or designed, do not absolve a defendant of liability for prohibited conduct.2 Given toy guns and fake bombs rise to the level of dangerous weapons prohibited by federal criminal law, an actual, functioning gun that would explode and cause death or severe bodily harm to the user and the surrounding public certainly rises to the level of a prohibited destructive device. See e.g. Hargrove, 201 F.3d at 968 n. 2; United States v. Marx, 485 F.2d at 1185; United States v. Cooper, 462 F.2d at 1344–45. The United States discovered and presented the requisite evidence to sustain Borne’s charges and conviction under 26 U.S.C. § 5845(f)(3) for designing and fabricating firearm parts on a 3D printer, in addition to possessing the component parts of an incendiary pipe bomb. Accordingly, the decision of the Fourteenth Circuit should be affirmed. See e.g. Id.; United States v. Zamora, 222 F.3d 756, 767 (10th Cir. 2000) (holding that a fake bomb is a dangerous weapon regardless of its functional capability); United States v. Hargrove, 201 F.3d 966, 968 n. 2 (7th Cir. 2000) (holding that even a toy gun is a prohibited dangerous weapon); United States v. Beckett, 208 F.3d 140, 152 (3d Cir. 2000) (holding that hoax bombs are dangerous weapons regardless of function); Hamrick, 43 F.3d at 880–84 (holding that a dysfunctional bomb was a dangerous weapon); United States v. Martinez-Jimenez, 864 F.2d 664, 666 (9th Cir. 1989) (holding that a toy gun is a dangerous weapon regardless of functionality or capability of use); United States v. Marx, 485 F.2d 1179, 1185 (10th Cir. 1973) (holding that a fake bomb was a prohibited dangerous weapon); United States v. Cooper, 462 F.2d 1343, 1344–45 (5th Cir. 1972) (holding that a simulated bomb was a prohibited dangerous weapon). 2 29 II. BORNE CAN BE CHARGED UNDER 18 U.S.C. § 2339B FOR MAKING PLANS TO MEET THE LEADER OF A FOREIGN TERRORIST ORGANIZATION IN ORDER TO SHOW AND DEMONSTRATE DANGEROUS COMPUTER CODE. The Fourteenth Circuit correctly upheld Borne’s conviction under 18 U.S.C. § 2339B. Borne’s conviction under Section 2339B did not result in a constitutional violation because Section 2339B is not vague or overbroad on its face. Additionally, the statute is not vague as applied to Borne’s conduct. Further, the evidence provided at trial to support Borne’s Section 2339B conviction was sufficient. Therefore, the Fourteenth Circuit correctly held that a rational fact-finder could have concluded Borne was guilty of violating the material support statute. A. 18 U.S.C. § 2339B of the Material Support Statute is Constitutional on its face and as applied to Borne’s conduct. Borne attempted to materially support Dixie Millions, an entity that is classified by the Secretary of State as a Foreign Terrorist Organization. R. at 5. Borne planned to meet with Allen, intending to show him a series of materials, which together, could create a 3D-printed gun. See R. at 12, 18. Borne’s conduct constituted “material support” because she sought to provide Dixie Millions with intangible property and training. See 18 U.S.C. § 2339A(b)(1) (defining material support as “any property . . . tangible or intangible, or . . . [and] training”). This Court should not grant Borne relief by overturning her convictions on a constitutional basis. Section 2339B is constitutional on its face and as applied to Borne. 30 1. 18 U.S.C. § 2339B is not unconstitutionally vague or overbroad on its face. Through her argument that Section 2339B is unconstitutional, Borne improperly conflates the “vagueness” doctrine and the “overbreadth” doctrine. She argued to the Fourteenth Circuit “that the statute violates her freedom of speech and her right of association . . . under both a strict scrutiny standard and also on an asapplied basis” R. at 21. Essentially, she argued to the Fourteenth Circuit that Section 2339B is unconstitutionally vague because it violated her right to free speech and association. This interpretation is incorrect because the “vagueness” doctrine and the “overbreadth” doctrine are separate and distinct. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497 n.9 (1982). But, under either a vagueness or overbreadth challenge, Section 2339B passes constitutional muster. a. 18 U.S.C. § 2339B is not unconstitutionally vague on its face. A statute is void for vagueness under the Due Process Clause of the Fifth Amendment when it “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standard-less that is authorizes or encourages seriously discriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008). In order to prevail on a vagueness challenge, a party must demonstrate (1) that the statute does not provide sufficient notice about the prohibited conduct; and (2) that the statute fails to provide adequate standards to the police and courts. See City of Chicago v. Morales, 527 U.S. 41, 56 (1999). However, a claimant cannot demonstrate that a statute is unconstitutionally vague when the party’s own conduct falls within the ordinary meaning of the statute. 31 Laws that involve constitutional rights are evaluated under a more stringent standard and do not require that the party demonstrate the statute’s “vague[ness] in all of its applications.” Village of Hoffman Estates, 455 U.S. at 494–95. Instead, a facial vagueness challenge is met when it is demonstrated that the statute reaches a “substantial amount of constitutionally protected conduct.” Id. at 494. Here, Section 2339B states that the statute is triggered by “whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so . . . .” 18 U.S.C. § 2339B(a)(1) (emphasis added). This section further provides that “the term ‘material support or resources’ has the same meaning given that term in section 2339A.’” Section 2339A defines “material support” to include intangible property and “training.” See 18 U.S.C. § 2339A(b)(1). The statute provides precise standards to determine the impermissible conduct prohibited by the statute because it includes an exact scienter requirement. The statute specifies that a party triggers this standard only if he “knowingly” provides material support, and this scienter requirement saves the statute from a void for vagueness claim. See Holder v. Humanitarian Law Project, 561 U.S. 1, 21 (2010). In fact, this Court has frequently held that a statute is not vague when the conduct contains a similar mens rea requirement. See Hill v. Colorado, 530 U.S. 703, 732 (2000) (holding that a statute is not vague when it only applies to a person who “knowingly” approaches another person for the purposes of protesting); see also Posters ‘N’ Things, Ltd. v. United States, 511 U.S. 513, 526 (1994) (holding that a statute was not void when it required that a party “knowingly” make use of interstate 32 distribution to sell drug paraphernalia). As such, Section 2339B is not void for vagueness because of its specific intent requirement. Furthermore, the material support statute is directed at punishing conduct, not speech. Here, Borne failed to specify which situations would trigger the material support statute and impermissibly violate free speech. And although Borne may contrive hypotheticals within which this statute might incidentally infringe on protected speech, these mere possibilities do not rise to the level of having a substantial chilling effect on protected conduct. Hill, 530 U.S. at 733 (“Speculation about possible vagueness in hypothetical situations not before the Court will not support a facial attack on a statute when it is surely valid ‘in the majority of its intended applications’”) (emphasis added). This statute’s intended application involves deterring parties from either directly or indirectly contributing to FTOs’ goals. See Humanitarian Law Project, 561 U.S. at 34. And the statute’s purpose is substantiated by its lengthy and precise definition provided under Section 2339A. For example, the express language of Section 2339B prohibits “expert advice or assistance.” 18 U.S.C. § 2339B(g)(4).The intended application of this term is to apply to any party who uses their expert knowledge to assist a member of a FTO with building a bomb. Similarly, the statute prohibits “false documentation or identification.” This would obviously apply to a situation where a person creates a false passport for a FTO member so that he may enter the United States illegally. The intended application of these statutes is not 33 ambiguous, and this statute, therefore, does not impermissibly reach a substantial amount of protected speech. Finally, this Court should recall from a policy perspective that “this litigation implicates sensitive and weighty interests of national security.” See Humanitarian Law Project, 561 U.S. at 33–34. Although a consideration for national security does not abrogate the obligation to protect constitutional rights, this Court affords deference to the Government’s efforts to protect the lives of American citizens. Id. at 34. That deference compels this Court to consider the practical implications of requiring the increased level of specificity that Borne requests. As this Court noted in Humanitarian Law Project, “demanding hard proof—with ‘detail,’ ‘specific facts,’ and ‘specified evidence’ . . . would be a dangerous requirement.” Thus, this statute aims to prevent attacks likely to occur through others’ material support. Id. And this goal cannot be attained Borne requested level of specificity because FTO operations are unpredictable, and clandestine by nature.3 For these reasons, this Court should find that Section 2339 is not vague on its face. Humanitarian Law Project, 561 U.S. 1, 33 (2010) (citing to the Executive branch’s affidavit, which explains that “[g]iven the purposes, organizational structure, and clandestine nature of foreign terrorist organizations, it is highly likely that any material support to these organizations will ultimately inure to the benefit of their criminal, terrorist functions—regardless of whether such support was ostensibly intended to support non-violent, non-terrorist activities”). 3 34 b. 18 U.S.C. § 2339B is not overly broad on its face. A statute is unconstitutionally overly broad when it criminalizes free speech rights protected by the First Amendment. See Virginia v. Hicks, 539 U.S. 113, 119 (2003). When explaining the overbreadth doctrine this court noted: The showing that a law punishes a ‘substantial amount of protected free speech, ‘judged in relation to the statute’s plainly legitimate sweep’, suffices to invalidate all enforcement of that law, ‘until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression.’ Id. at 118–19 (internal citations omitted). However, the overbreadth doctrine is an extraordinary remedy. Id. at 124. This is because “[r]arely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech.” Id. For this reason this Court emphasized that there are “substantial social costs” when a law is declared overly broad and blocks application to either “constitutionally unprotected speech” or “constitutionally unprotected conduct.” Id. at 119–20. Given these costs, a statute is only unconstitutionally overbroad when there is a “substantial” chilling effect to free speech, “not only in the absolute sense, but also relative to the scope of the law’s plainly legitimate applications.” Id. at 120. Applying these principles, one district court held that Section 2339A’s definition of material support was not overly broad because a party’s speculation about “some unspecified circumstance in which § 2339A could infringe lawful expression” was not sufficient. United States v. Amawi, 545 F. Supp. 2d 681, 683 (N.D. 35 Ohio 2008). A similar concern is present here because Borne does not allege specific instances where this statute sweeps protected speech. But even if this Court were to imagine instances where this statute criminalized protect conduct, those instances are placed against the statute’s legitimate end to prevent egregious attacks from foreign terrorists. Given this purpose, the statute does not “substantially” chill free speech. As such, it is not overly broad. 2. 18 U.S.C. § 2339B is not unconstitutionally vague as it applies to Borne. Borne’s as-applied vagueness challenge to Section 2339B fails for two reasons. First, her conduct fell within the ordinary meaning of the statute. Second, the plain meaning of the statute provides sufficient guidance to law enforcement and courts who apply it. a. Borne’s conduct fell within the statute’s plain meaning. Borne’s conduct was prohibited by the statute’s definition of “material support.” Under Section 2339A the term “material support” is defined to include “any property, tangible or intangible.” Here, Borne scoured the Darknet for information about Allen, a Dixie Millions leader. R. at 12. She then compiled this information and meticulously documented the different places Allen frequently visited on a spreadsheet. R. at 11–12. As part of her extensive documentation of Allen’s habits, she noted that Allen was seen at a University of Mishallery campus café on each Tuesday that fell on a prime number date. R. at 12. She then made plans to stake out the café in hopes of meeting Allen and then providing him with computer code that allowed the creation of a 3D-printed gun. R at 12. Borne’s research into a known 36 member of an FTO was extensive and detailed. To further ensure that she would not miss meeting Allen, she printed a “character-look alike” image of Allen so that she could reference this paper at the café. R. at 12. Finally, she put a calendar event in her smartphone calendar as further assurance that she would not miss the date to meet Allen at the café. R. at 12. Borne’s plans to meet with a member of a FTO were extraordinarily intricate. Little doubt exists that but for Borne’s arrest, she would have met with Allen. At this meeting, Borne intended to present him with a series of materials that could help carry out Dixie Millions’ mission. R. at 12. She planned to show Allen these items to prove her hacker credentials, hoping he would mentor her. Id. Providing a known FTO with a series of computer codes undoubtedly falls within the meaning of “intangible property.” Further, Borne’s assistance also fell within the meaning of “training” and “expert advice or assistance.” Section 2339A defines “training” to mean an “instruction or teaching designed to impart a specific skill, as opposed to general knowledge.” 18 U.S.C. § 2339A(b)(2). It further defines “expert advice or assistance” as “advice or assistance derived from scientific, technical or other specialized knowledge.” Id. For two weeks Borne worked on a piece of code that would provide instructions to the 3D printer. R. at 7–9. During this time, she became knowledgeable of the different components of the code. R. at 10. She was able to “perfect” the code, which provided a solution to the coding error that Borne and Triton previously encountered 37 R. at 9. Borne’s code was specialized and perfected with the help of Ascot, a skilled hacker and suspected member of Dixie Millions. R. at 7, 17. This code was not “general knowledge.” Rather, it was exactly the type of “specific skill” that the material support statute prohibits. Therefore, Borne’s conduct fell within the narrowly defined scope of “training.” Any person of ordinary intelligence would understand that providing a FTO with code concerning the curvature of a printed device would be considered “intangible property” and “training,” triggering Section 2339B. And yet Borne is not a person of ordinary intelligence. To the contrary, Borne was “deeply interested in learning computer programming,” and was learning to program in C++. R. at 3–4. As it applies to Borne, she understood the terms “intangible property” and “training” with even greater familiarity than what is constitutionally required. Her conduct— attempting to provide Dixie Millions with computer code—also fell within the statute’s terms of “intangible property” and “training.” b. The statute’s plain meaning gives proper guidance to law enforcement and courts. Section 2339B of the material support statute informs police officers and courts as to the statute’s reach. “Laws must provide explicit standards for those who apply them.” Village of Hoffman Estates, 455 U.S. at 498. However, these standards for vagueness are not uniformly applied to every statute. Id. The “degree of vagueness that the Constitution tolerates . . . depends in part on the nature of the enactment.” Id. 38 Section 2339B was enacted as part of the Anti–Terrorism and Effective Death Penalty Act of 1996 to combat the growing presence of foreign terrorism. See Anti– Terrorism and Effective Death Penalty Act of 1996 (AEDPA) §§ 301(a)(1)-(7), 110 Stat. 1247, note following 18 U.S.C. § 2339B (Findings and Purpose) (stating that “international terrorism is a serious and deadly problem that threatens the vital interests of the United States”). This statute is critical to successfully addressing terrorism because it recognizes that any contribution, illegal or otherwise, facilitates the missions of FTOs. Id. (“[F]oreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct”). Section 2339B provides reasonable, objective guidelines for two additional reasons. First, Section 2339B only applies in the specific instance when a party provides, or attempts to provide, support to a designated or known FTO. The statute’s applicability is necessarily modified by this requirement. See Humanitarian Law Project, 561 U.S. at 35 (noting that Congress has consciously addressed possible constitutional violations by limiting the statute’s application to only those designated by the Executive branch as FTOs). Second, this statute does not permit police officers or the courts to subjectively determine what the statute prohibits because of the precise definitions provided. The statute not only defines “material support” but also provides further clarifying definitions for terms like “training.” See 18 U.S.C. § 2339B. There is nothing extraordinarily technical or complicated about the conduct that this statute prohibits, 39 and as such the statute provides sufficient guidance to curb potential abuse. Id. Borne’s conduct fell within the ordinary meaning of the terms, and the statute provided limitations in order to prevent its arbitrary application. As such, the statute was not vague as it applied to Borne’s conduct. B. A Rational Fact-Finder Could Find that Borne Provided Dixie Millions with Material Support to a Foreign Terrorist Organization as defined by 18 U.S.C. § 2339B. Implicit in Section 2339B’s statutory language are three elements: First, the individual’s conduct must at minimum constitute an “attempt.” See e.g. 18 U.S.C. § 2339B (2012). Second, the individual’s conduct must constitute “material support.” Id. Third, the individual must have had knowledge of the organization’s terrorist designation. Id. Borne’s conduct met all three of these statutory elements, and therefore this Court should reject Borne’s meritless challenge to her Section 2339B conviction’s sufficiency. 1. Borne’s conduct constituted “material support.” A rational fact-finder could have found that Borne’s conduct constituted “material support”—as one did in this case. Section 2339B cross references to Section 2339A to define “material support.” Section 2339A defines material support as: [A]ny property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials. 40 18 U.S.C. § 2339A(b)(1) (emphasis added). Although Section 2339A does not further define the term “property,” the definition expressly qualifies the meaning of property as covering anything tangible or intangible. When interpreting “material support” the First Circuit held that a defendant who traveled to Yemen in search of terrorist camps and posted online translations of violent jihad documents provided material support to an FTO. See United States v. Mehanna, 735 F.3d 32, 46 (1st Cir. 2013). Although the defendant in that case alleged that his Yemen visit was to pursue Islamic studies, the First Circuit stated that the jury “was entitled to draw a different inference: that the defendant’s comments were evidence of the formation and implementation of a scheme to go abroad, obtain training, join with al-Qa’ida, and wage war against American soldiers fighting in Iraq.” Id. at 44. Similar to Mehanna, the evidence at trial indicated that Borne would have met with a member of an FTO if the police did not arrest her on the way to the airport. See R. at 13. Social media evidence produced at trial also indicated that Borne supported the FTO’s missions. R. at 18. Additionally, at trial an FBI ballistics expert testified that the contents found on Borne’s possession at the time of her arrest were 3D-printalbe plans that produced an explosive device. R. at 18. Viewing the evidence as a whole, a rational fact-finder could find that Borne attempted to meet with an FTO in order to provide its leader with instructions on how to create an illegal weapon. 41 Additionally, the Second Circuit in United States v. Farhane found sufficient evidence to uphold a 2339B conviction when the defendant provided medical support to members of al-Qai’da. See United States v. Farhane, 634 F.3d 127, 145–46 (2d Cir. (2011). In Farhane, the Second Circuit found that the defendant attempted to provide material support when he gave his telephone number to a FTO member so that he could be on-call in case of medical emergencies. Id. Although the defendant in that case did not himself perform a terrorist act, his medical assistance triggered the statute because he was directly helping the terrorist organization by agreeing to help any “brothers . . . [that] ‘sometimes [got] hurt with a bullet’ during ‘training’ and in ‘operations.’” Id. at 145. Like in Farhane, Borne’s attempted support was not an actual, terrorist act itself. However, she attempted to provide a member of an FTO with materials that together produced an illegal weapon. Although this particular FTO does not use these types of weapons to carry out their terrorist missions, there are many conceivable ways that this FTO could use this information to contribute to their cause. For example, this FTO could sell these plans to other violent organizations that would use this type of weapon to commit terrorist acts. Or as the Fourteenth Circuit noted, “the plans for a 3D-printed gun [ ] would enable Dixie Millions to, at the very least, profit financially.” R. at 22. Borne argues that Dixie Millions could have obtained the 3D gun plans, the cylinder code, and the filament formula through means other than through her USB sticks. But Section 2339B prohibits conduct that may indirectly or directly contribute to a FTO’s mission. This is because Section 2339B was premised on the notion that 42 even when the “material support” is meant to “promote peaceful, lawful conduct . . . [it] can further terrorism by foreign groups in [many] ways.” Humanitarian Law Project, 561 U.S. at 30. As this Court recognized, “[m]oney is fungible.” Id. Any support that may give the FTO a monetary gain, in turn, can be redirected to advance their terrorists goals. Id. And any support that allows a FTO to more efficiently use its resources and further its mission is material support. For this reason, Borne’s argument that the computer code she sought to provide was “harmless on its face” must be rejected. R. at 23. Borne also contends that her conviction under Section 2339B was improper because “she has not yet engaged in any criminal activity at the behest of Dixie Millions.” R. at 22. Under this same light, she argues that Section 2339B does not apply to her conduct because she is not a member of the FTO. R. at 22. However, both of these arguments are incorrect, as they rely on a false understanding of the statute. Section 2339B does not seek to “prohibit or punish mere membership in or association with terrorist organization.” See Farhane, 634 F.3d at 137 (2nd Cir. 2011). Instead, the statute prohibits providing material support to a known terrorist organization. Id. At 138. As such, Borne’s membership with the FTO is irrelevant to upholding her conviction. Section 2339B is designed to prohibit and deter Borne’s exact conduct. She attempted to meet a FTO member and to provide him with materials that could produce a 3D-printed gun. “Anyone who knowingly contributes to the nonviolent wing of an organization that he knows to engage in terrorism is knowingly contributing to 43 the organization’s terrorist activities.” Boim v. Holy Land Found. For Relief & Dev., 549 F.3d 685, 698 (7th Cir. 2008). The material support statute is critical to deterring terrorism. And this goal cannot be accomplished if individuals are not prevented from supporting these entities in a variety of ways. For these reasons, Borne’s conduct constituted “material support.” 2. Borne’s conduct, at a minimum, constituted an attempt to provide material support. Even if a rational fact-finder could not have found that Borne’s conduct constituted material support, it could have at least found that her conduct constituted an attempt to provide support under Section 2339B. Borne was arrested on her way to the airport, before she could meet Allen in Azran. R. at 15. Section 2339B prohibits an attempt to provide material support to a FTO. See 18 U.S.C. § 2339B(a)(1). An “attempt” has two elements: (1) an intent to commit the underlying offense; and (2) a substantial step towards completion of the underlying offense. See Braxton v. United States, 500 U.S. 344, 349 (1991). A “substantial step” is demonstrated when the parties’ actions “cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances.” See United States v. Mincoff, 574 F.3d 1186, 1195 (9th Cir. 2009); see also United States v. DeMarce, 564 F.3d 989, 998 (8th Cir. 2008). Here, Borne’s conduct indicates that she attempted to provide material support to a FTO. Borne’s timeline of events indicates that she took substantial steps to providing material support to a FTO. Throughout May 2012, Borne searched the Darknet to trace Allen’s recent locations in Azran. R. at 11. Based on her extensive 44 investigation, she “deduced a pattern to Allen’s activities.” R. at 11. She then planned to meet Allen on June 5, 2012 at a café. R. at 11. To ensure that she would not miss this meeting, she even put a calendar reminder on her smartphone. R. at 11. On June 3, 2012, three days before the planned meeting, Borne packed for her trip to Azran and included the following items: (1) a thumb drive containing code, which instructed a 3D printer to print curvatures; (2) a spreadsheet indicating Allen’s likely location; and (3) a print-out character version of Allen, which she hoped would help her identify Allen. R. at 12. In totality, these events demonstrate that she took substantial steps to meeting, and packing the materials that she would give to Allen. Nothing in the record indicates any hesitation in meeting Allen. As such, the evidence was sufficient to support a charge for “attempt” under Section 2339B of the material support statute. 3. Borne knew that Dixie Millions was a foreign terrorist organization. Section 2339B also requires that a party must “have knowledge” of the FTO’s designation. See 18 U.S.C. § 2339B (“Whoever knowingly provides material support or resources to a foreign terrorist organization”). Section 2339B further states: To violate this paragraph, a person must have the knowledge that the organization is a designated terrorist organization . . . that the organization has engaged or engages in terrorist activity . . or that the organization has engaged or engages in terrorism. 18 U.S.C. § 2339B(a)(1) (emphasis added). The knowledge element of this Section penalizes providing material support to an FTO regardless of the support’s purpose. 45 See Estate of Parsons v. Palestinian Authority, 952 F. Supp. 2d 61, 67 (D.C. Cir. 2013). Further, this Court specified in Humanitarian Law Project that the statute applies when the party has “knowledge about the organization’s connection to terrorism” and is not contingent on the party’s “specific intent to further the organization’s terrorist activities.” Humanitarian Law Project, 561 U.S. 1, 16–17 (2010). Here, Borne was likely aware of Dixie Millions’ FTO classification. The Secretary of State classified Dixie Millions as a FTO more than a year prior to Borne’s offense. R. at 5. However, even if Borne was somehow unaware of Dixie Millions’ FTO designation, Borne had knowledge of Dixie Millions’ terrorist activities. The statute expressly states that a person has the requisite intent under Section 2339B when the defendant knows “that the organization has engaged or engages in terrorist activity.” 18 U.S.C. § 2339B(a)(1). As one district court explained: A defendant must either know that the recipient of the material support provided by him is an organization that engages in terrorist acts, or defendant must be deliberately indifferent to whether or not the organization does so, i.e., defendant knows there is a substantial probability that the organization engages in terrorism, but does not care. In re Terrorist Attacks on September 11, 2011, 740 F. Supp 2d 494, 517 (S.D.N.Y. 2010) (citing to Beck v. Dobrowski, 559 F.3d 680, 685 (7th Cir. 2009)). Dixie Millions’ acts of terrorism are pervasive. R. at 5 (indicating that from December 2011 to March 2012, several websites online were hacked, displaying the message “Dixie will make sure that millions follow Millions”). Borne was familiar with Dixie Millions, and its terrorist aims. She personally admired Allen, a member of Dixie Millions. R. at 9. She actively researched the whereabouts of Allen. R at. 11. She viewed Allen as a role 46 model, and aspired to become a hacker as well. R. at 11. Records of Borne’s Darknet activities demonstrate that she “also wanted to meet with other hacker groups.” R. at 17. Borne alleged at trial that she hoped to meet with other hacker groups to convince them “not to exploit bank, financial, and government security flaws.” R. at 17. Borne’s Twitter account revealed that she re-tweeted articles depicting Dixie Millions positively. R. at 18. This online activity demonstrates Borne is no stranger to the world of hackers, and her activity shows a special familiarity with Dixie Millions’ previous attacks on websites. This knowledge is sufficient to infer that based on the circumstances, Borne knew that Dixie Millions was responsible for hacking several websites. The evidence presented at trial was sufficient such that a rational fact-finder could find that either (1) Borne knew of Dixie Millions’ FTO classification; or (2) that she knew of the terrorist acts that Dixie Millions committed. Either standard is sufficient to support the “knowing” requirement under Section 2339B. Therefore, a rational fact-finder was entitled to conclude that Borne had the requisite intent required under this statute, and Borne’s insufficient evidence claim is meritless. 47 CONCLUSION This Court should affirm the Fourteenth Circuit’s judgment in all respects. Borne was properly charged under 26 U.S.C. § 5845(f)(3) and properly prosecuted under 18 U.S.C. § 2339B. Respectfully submitted, ______________________________ ATTORNEYS FOR RESPONDENT 48 APPENDIX TABLE OF CONTENTS Page APPENDIX A: National Firearms Act, 26 U.S.C. § 5845(f)(3) (2006).…………...….…………….…………A-1 APPENDIX B: Antiterrorism and Effective Death Penalty Act of 1996, 18 U.S.C. § 2339B(a) (2012)..………………...………………….…B-1 APPENDIX C: Antiterrorism and Effective Death Penalty Act of 1996, 18 U.S.C. § 2339A(b) (2012)..………………...………………….…C-1 APPENDIX A National Firearms Act 26 U.S.C. § 5845(f)(3) (2006) For the purpose of this chapter-(f) Destructive device.--The term “destructive device” means (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-1 APPENDIX B Antiterrorism and Effective Death Penalty Act of 1996 18 U.S.C. § 2339B(a) (2012) (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-1 APPENDIX C Antiterrorism and Effective Death Penalty Act of 1996 18 U.S.C. § 2339A(b) (2012) (b) Definitions.--As used in this section— (1) the term “material support or resources” means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials; (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. C-1