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.
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