No. C15-1359-1
In the
Supreme Court of the United States
___________
EMMALINE BORNE,
v.
Petitioner,
UNITED STATES OF AMERICA,
Respondent.
___________
On Writ Of Certiorari To
The United States Court Of Appeals
For The Fourteenth Circuit
___________
BRIEF FOR THE RESPONDENT
Team # 52
Counsels of Record
QUESTIONS PRESENTED
I.
Whether an individual can be liable under 26 U.S.C. § 5845(f)(3) for
possessing a destructive device where the individual designs and fabricates it
components using a 3D printer and where those component parts can be
readily assembled to make an explosive device by way of its objective design
or intended purpose.
II.
Whether an individual can be convicted under 18 U.S.C. § 2339B for
providing material support to a known foreign terrorist organization where
the individual planned to meet its leader and share valuable computer code
and where the statute clearly specifies the prohibited conduct.
i
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED .......................................................................
i
TABLE OF CONTENTS .............................................................................
ii
TABLE OF AUTHORITIES ......................................................................
vii
JURISDICTIONAL STATEMENT ...........................................................
1
STATUTORY PROVISIONS .....................................................................
1
STATEMENT OF THE CASE ...................................................................
2
SUMMARY OF ARGUMENT ...................................................................
9
ARGUMENT ..............................................................................................
12
I.
PETITIONER CAN BE CHARGED UNDER 26 U.S.C. § 5845(f)(3)
BECAUSE THE DESIGN AND FABRICATION OF EXPLOSIVE
PARTS ON A 3D PRINTER CONSTITUTES A “DESTRUCTIVE
DEVICE,” IRRESPECTIVE OF WHETHER EACH INDIVIDUAL
COMPONENT HAS A LEGITIMATE PURPOSE. ........................
A.
Section 5845(f)(3) Includes the Design and Fabrication of
3D Printed Parts As Congress Used Broad Language to
Ensure the Statute Encompassed Modern Weaponry.........
14
1.
The statute’s language does not exclude 3D printed
components. .................................................................
14
2.
Congress intended Section 5845(f)(3) to include
homemade devices.......................................................
15
As a policy matter, the NFA should regulate
3D-printed destructive devices. ..................................
16
3.
B.
12
A “Mixed Motive” Standard Is the Appropriate Standard
to Apply to 26 U.S.C. § 5845(f)(3) Because It Comports with
the Statute’s Language and This Court’s Precedent. ..........
ii
17
TABLE OF CONTENTS (CONT.)
1.
The statute’s disjunctive language necessitates a
mixed motive standard. ..............................................
19
The mixed motive standard aligns with this Court’s
mens rea jurisprudence regarding the NFA...............
20
Sufficient Evidence Supports Petitioner’s Conviction
Under Section 5845(f)(3) Because She Possessed All
the Components Necessary to Readily Assemble a
Destructive Device.................................................................
22
2.
C.
1.
Looking to the objective characteristics of the device,
Petitioner possessed a destructive device because the
components in her luggage, when combined, had no
legitimate social or commercial purpose, and were
capable of exploding....................................................
a.
2.
23
Petitioner’s intent is irrelevant because the
3D-printed cylinder is designed for use as a
weapon. .............................................................
24
The ballistics expert’s testimony provided
sufficient evidence for Petitioner’s
conviction..........................................................
26
Even if the 3D parts and plans have a legitimate
social purpose, these items are destructive devices
given Petitioner’s terrorist sympathies, influential
affiliates, and scientific acumen.................................
27
b.
a.
Taken as a totality, the components found
in Petitioner’s suitcase constituted a
destructive device. ...........................................
i.
Page
Petitioner’s terrorist allegiances are
evidence of her liability under
Section 5845(f)(3). .................................
iii
27
28
TABLE OF CONTENTS (CONT.)
ii.
Third party intent is evidence of
Petitioner’s liability under
Section 5845(f)(3). .................................
29
The timing and circumstances of
Petitioner’s arrest are evidence of
Petitioner’s liability under
Section 5845(f)(3). .................................
29
The ease of assembly is evidence
of Petitioner’s liability under
Section 5845(f)(3). ................................
30
The gun plans are a destructive device. ..........
31
PETITIONER CAN BE PROSECUTED UNDER 18 U.S.C.
§ 2339B BECAUSE § 2339B WITHSTANDS
CONSTITUTIONAL SCRUTINY AND BECAUSE
MAKING PLANS TO MEET A KNOWN FTO TO PROVIDE
COMPUTER CODE IS “MATERIAL SUPPORT”
UNDER § 2339B. .............................................................................
33
iii.
iv.
b.
II.
A.
18 U.S.C. § 2339B Is Constitutionally Valid on Its Face
Because It Does Not Chill Freedom of Speech or
Association Under the First Amendment Nor Does
It Violate Due Process Under the Fifth Amendment. .........
1.
Section 2339B survives Petitioner’s First
Amendment facial challenges because it is
not unconstitutionally vague or overbroad. ...............
a.
b.
Page
35
35
Section 2339B’s precise language puts
a reasonable person on notice, and, therefore,
does not abridge an individual’s freedom
of speech or association. ..................................
35
Section 2339B does not restrict
significantly more speech than the
Constitution allows to be controlled, and,
therefore, is not overbroad. .............................
38
iv
TABLE OF CONTENTS (CONT.)
2.
‘
Section 2339B does not violate the Fifth
Amendment’s Due Process Clause because
it provides fair notice and is not susceptible to
arbitrary enforcement. ................................................
a.
40
Section 2339B does not
encourage arbitrary enforcement....................
40
Petitioner’s As Applied Challenge Fails Under Either
Intermediate Review or Strict Scrutiny Because the
Government Has a Compelling Interest in Preventing
Terrorism and this Court Routinely Defers to the
Political Branches in Matters of National Security. ...........
42
a.
Intermediate Scrutiny is the proper standard
to apply because Section 2339B criminalized
Petitioner’s conduct, not speech. .....................
42
Even if this statute is a content-based
regulation of Petitioner’s speech, the statute
is narrowly tailored to further a compelling
government interest. .........................................
43
Sufficient Evidence Supports Petitioner’s Conviction
Under Section 2339B Because She Attempted to
Provide Valuable Property, Expert Advice, and
Personnel to an Individual of a Known FTO. ......................
45
b.
C.
1.
Petitioner’s acts leading up to her arrest constitute
“material support” as defined by Section 2339B. ......
a.
39
Section 2339B is not vague, and,
therefore provides defendants with
fair notice. ........................................................
b.
B.
Page
Petitioner’s code is highly valuable,
and therefore, constitutes material
support..............................................................
v
47
48
TABLE OF CONTENTS (CONT.)
b.
Page
Petitioner’s programming acumen and
expertise constitutes material support. ..........
49
Petitioner took a substantial step toward providing
material support to an FTO by researching
Mr. Allen for a month, preparing a spreadsheet
to locate Mr. Allen, and planning to give him
her code........................................................................
50
Petitioner knew Dixie Millions was an FTO. .............
52
CONCLUSION ............................................................................................
54
2.
3.
vi
TABLE OF AUTHORITIES
Page(s)
CASES
United States Supreme Court
Apex Hosiery Co. v. Leader,
310 U.S. 469 (1940) ..........................................................................
16
Brandenburg v. Ohio,
395 U.S. 444 (1969) .........................................................................
37
Broadrick v. Oklahoma,
413 U.S. 601 (1973) ..........................................................................
38, 39
Caminetti v. United States,
242 U.S. 470 (1917) ..........................................................................
19
Connally v. General Construction Co.,
269 U.S. 385 (1926) ..........................................................................
35
De Jonge v. State of Oregon,
299 U.S. 353 (1937) ..........................................................................
38
Hill v. Colorado,
530 U.S. 703 (2000) ..........................................................................
40
Hoffman Estates, Inc.,
455 U.S. 489 (1982) ..........................................................................
41
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) ..............................................................................
passim
Jackson v. Virginia,
443 U.S. 307 (1979) ..........................................................................
46
NAACP v. Button,
371 U.S. 415 (1963) ..........................................................................
35, 36
New York v. Ferber,
458 U.S. 747 (1982) ..........................................................................
39
vii
TABLE OF AUTHORITIES (CONT.)
Page(s)
Scales v. United States,
367 U.S. 203 (1961) ..........................................................................
39
Singleton v. Wulff,
428 U.S. 106 (1976) ..........................................................................
34
Staples v. United States,
511 U.S. 600 (1994) ..........................................................................
20, 21, 22
Turner Broadcasting System, Inc. v. FCC,
520 U.S. 180 (1997) ..........................................................................
43
United States v. Balint,
258 U.S. 250 (1922) ..........................................................................
20-21
United States v. Freed,
401 U.S. 601 (1971) ..........................................................................
12, 20, 21
United States v. Int’l Minerals & Chemical Corp.,
402 U.S. 558 (1971) ..........................................................................
20
United States v. Williams,
553 U.S. 285 (2008) ..........................................................................
37
United States Courts of Appeals
United States v. Al Kassar,
660 F.3d 108 (2d Cir. 2011) .............................................................
46
United States v. Buchanan,
787 F.2d 477 (10th Cir. 1986) ..........................................................
25
United States v. Campbell,
685 F.2d 131 (5th Cir. 1982) ............................................................
25
United States v. Copus,
93 F.3d 269 (7th Cir. 1996) ..............................................................
19
viii
TABLE OF AUTHORITIES (CONT.)
Page(s)
United States v. Cruz,
492 F.2d 217 (2d Cir. 1974) .............................................................
16
United States v. Farhane,
634 F.3d 127 (2d 2011), cert. denied 132 S.Ct. 833 ........................
52
United States v. Greer,
588 F.2d 1151 (6th Cir. 1978) ..........................................................
15, 30
United States v. Hedgcorth,
873 F.2d 1307 (9th Cir. 1989) ..........................................................
25
United States v. Johnson,
152 F.3d 618 (7th Cir. 1998) ............................................................
passim
United States v. Lockwood,
789 F.3d 773 (7th Cir. 2015) ............................................................
19
United States v. Lussier,
128 F.3d 1312 (9th Cir. 1997) ..........................................................
13, 20
United States v. Markley,
567 F.2d 523 (1st Cir. 1977) ............................................................
22
United States v. Mehanna,
735 F.3d 32 (1st Cir. 2013)
cert. denied, 135 S. Ct. 49 (2014) .....................................................
51–53
United States v. Melancon,
462 F.2d 82 (5th Cir. 1972) ..............................................................
32
United States v. Morningstar,
456 F.2d 278 (4th Cir. 1972) ............................................................
15, 17
United States v. Oba,
448 F.2d 892 (9th Cir. 1971) ...........................................................
17
United States v. One Sentinel Arms Striker,
416 F.3d 977 (9th Cir. 2005) ............................................................
14,
ix
TABLE OF AUTHORITIES (CONT.)
Page(s)
United States v. Pearce,
86 F. App'x 919 (6th Cir. 2004)........................................................
20
United States v. Peterson,
475 F.2d 806 (9th Cir. 1973) ............................................................
15
United States v. Posnjak,
457 F.2d 1110 (2d Cir. 1972) ...........................................................
18, 19, 23
United States v. Price,
877 F.2d 334 (5th Cir. 1989) ............................................................
23,30
United States v. Ragusa,
664 F.2d 696 (8th Cir. 1981) .............................................................
24, 31
United States v. Rushcamp,
526 F.2d 1380 (6th Cir. 1975) ..........................................................
26
United States v. Spoerke,
568 F.3d 1236 (11th Cir. 2009) ........................................................
26
United States v. Tankersley,
492 F.2d 962 (7th Cir. 1974) ............................................................
17, 22, 23
United States v. Urban,
140 F.3d 229 (3d Cir. 1998) .............................................................
23
United States District Courts
United States v. Ahmed,
94 F. Supp. 3d 394, 410 (E.D.N.Y. 2015) ........................................
41
United States v. Graziano,
616 F. Supp. 2d 350, 362 (E.D.N.Y. 2008)
aff'd, 391 F. App'x 965 (2d Cir. 2010) ............................................
32
United States v. Taleb-Jedi,
566 F. Supp. 2d 157 (E.D.N.Y. 2008) ..............................................
38
x
TABLE OF AUTHORITIES (CONT.)
Page(s)
United States v. Warsame,
537 F. Supp. 2d 1005 (D. Minn. 2008) ............................................
United States v. Worstine,
808 F. Supp. 663 (N.D. Ill. 1992) ....................................................
53
passim
CONSTITUIONAL PROVISIONS
U.S. Const. Amend. V .................................................................................
39
U.S. Const. Amend. I ..................................................................................
25
FEDERAL STATUTES
8 U.S.C. § 1189 (2015) ................................................................................
53
18 U.S.C. § 921 (2006) ...............................................................................
13, 20
18 U.S.C. § 2339B (2015) ............................................................................
passim
18 U.S.C. § 3231 (2015) ..............................................................................
1
26 U.S.C § 5801 (2015) ..............................................................................
12
26 U.S.C § 5802 (2015) ..............................................................................
12
26 U.S.C. § 5845 (2015) ..............................................................................
passim
26 U.S.C. § 5845 (2015) ..............................................................................
passim
26 U.S.C. § 5871 (2015) ..............................................................................
12
28 U.S.C. § 1254 (2015) ..............................................................................
1
xi
TABLE OF AUTHORITIES (CONT.)
SECONDARY SOURCES
Page(s)
An Act to Amend Chapter 44 (Relating to Firearms)
Pub L. No 94–455, 90 Stat. 520 (October 4, 1976) .........................
16
An Act to Reform the Tax Laws of the United States
Pub L. No. 99–308, 100 Stat. 449 (January 21, 1986)....................
16
Antiterrorism and Effective Death Penalty Act of 1996,
Sec. 324 Findings, Pub. L. No. 104–132
110 Stat. 1214 (April 24, 1996) ........................................................
33
Franklin E. Zimring, Firearms and Federal Law:
The Gun Control Act of 1968
4 J. Legal Stud.133, 137–38 (1975) .................................................
12, 15
Federal Business Opportunities,
Stratasys Objet24 Personal 3D Printer
https://www.fbo.gov/index?s=opportunity&mode=form&tab
=core&id=a63c2f0c479396b13c502bcf25574fe3&_cview=0 ...........
16
Huffington Post,
Feds Printed Their Own 3d Gun
http://www.huffingtonpost.com/ 2013/11/13/3
d-guns-atf_n_4269303.html. ..........................................................
16
Luis de la Corte, Ex16plaining Terrorism: A Psychosocial Approach,
PERSPECTIVES ON TERRORISM, Vol. 1, No. 2 (2007)
available at
http://www.terrorismanalysts.com/pt/index.php/pot/issue/view/2 ..
28
U.S. Dept. of State, Foreign Terrorist Organizations
http://www.state.gov/j/ct/rls/other/des/123085.htm
(last updated Sept. 3, 2015) ..............................................................
53
Undetectable Firearms Act,
Pub. L No. 113-57, 127 Stat. 656 (December, 9, 2013) ...................
17
xii
JURISDICTIONAL STATEMENT
Ms. Emmaline Borne (“Petitioner”) was charged under 26 U.S.C. § 5845(f)(3)
(2015) and 18 U.S.C. § 2339B (2015), for possessing a destructive device and
providing material support to a known foreign terrorist organization. R. at 17–18.
Jurisdiction in the District Court was based on 18 U.S.C. § 3231 (2015), as
Petitioner was charged with two offenses against the laws of the United States.
After a jury convicted Petitioner, timely appealed to the U.S. Court of Appeals for
the Fourteenth Circuit, which had jurisdiction under 28 U.S.C. § 1291 (2015).
After the Court of Appeals upheld both convictions, Petitioner timely
requested a writ of certiorari, which this Court granted pursuant to 28 U.S.C.
§ 1254(1) (2015). R. at 1.
STATUTORY PROVISIONS INVOLVED
This case involves the interpretation of Section 5845(f)(3) of Title 18, part of
the National Firearms Act (“NFA”). The NFA regulates component parts “either
designed or intended for use in converting any device into a destructive device.” 26
U.S.C. § 5845(f)(3) (2015). See Appendix “A.”
This case also involves the interpretation of Section 2339B of Title 26, part of
the Antiterrorism and Effective Death Penalty Act (“AEDPA”). This statute states:
Anyone who 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.
26 U.S.C. § 2339B (2015).
1
STATEMENT OF THE CASE
In May 2012, Police discovered Petitioner with materials capable of creating
an explosive device and a plan to meet with a known terrorist during a routine
traffic stop. R. at 15. Consequently, she was convicted for possession of an
explosive device and for aiding a known terrorist organization. R. at 18.
I.
Known Terrorist Activity in the United States
Dixie Millions is a foreign terrorist organization (“FTO”) that has stolen and
leaked information from the United States Milnet and other global government and
business entities. R. at 5. This notorious hacktivist group has only two members:
Clive Allen, a former National Security Analyst, and his unknown associate. At the
time of Petitioner’s arrest, the FBI believed Mr. Allen’s unknown associate was
residing in Harrisburg. R. at 5–6, 15.
In June 2009, the National Security Agency (“NSA”) hired Mr. Allen as a
consultant. R. at 5. While there, Mr. Allen specialized in the design and
management of highly classified databases. R. at 5. The NSA did not know Mr.
Allen was a member of Dixie Millions until November 22, 2011, when Mr. Allen
announced that he was “Millions” of Dixie Millions and released documents he stole
directly from the NSA. R. at 5. Mr. Allen published this sensitive information via
the Darknet—an online tool often used by hackers to subvert the law. R. at 5. Mr.
Allen disappeared shortly after he illegally released the NSA documents. R. at 5.
Despite a nationwide manhunt, law enforcement could not locate Mr. Allen until
2012. R. at 6.
2
On December 30, 2011, the Secretary of State declared Mr. Allen a criminal
and designated Dixie Millions as an FTO. R. at 5. From December 2011 to March
2012, Dixie Millions illicitly accessed numerous websites to acquire sensitive
information. R. at 5–6. Following each hack, Dixie Millions published the stolen
documents. R. at 5–6. On March 12, 2012, Mr. Allen announced that he had moved
to Azran. R. at 6. Azran granted Mr. Allen asylum and declared that any attempt
to capture him on Azranian soil would be an act of war. R. at 6. The Government
unsuccessfully attempted to negotiate for Mr. Allen’s release. R. at 6. During
negotiations, the United States learned that Mr. Allen had provided the Azranian
government with highly classified information. R. at 6.
Authorities have not confirmed the identity of Dixie Millions co-founder. R.
at 6. However, the FBI is “nearly certain” that Adalida Ascot, Petitioner’s physics
teacher and mentor, is “Dixie.” R. at 17. This assertion is strongly supported.
First, the FBI has mistakenly arrested a number of Mrs. Ascot’s former students as
hackers or suspected hackers. R. at 17. Mr. Allen and Mrs. Ascot attended Azran’s
University of Misthallery at the same time. R. at 6. Mrs. Ascot has expressed
admiration for Dixie Millions to Petitioner. R. at 8. Finally, Mrs. Ascot fled after
she learned Petitioner was arrested on suspicion of aiding Dixie Million’s terrorist
activity. R. at 16.
II.
Mrs. Ascot and Petitioner’s Relationship
On October 13, 2011, Mrs. Ascot encouraged Petitioner and her friend, Fiona
Triton, to apply to “Technical Promise,” a pre-college study abroad program at the
3
University of Misthallery. R. at 2–3. The program promotes sciences, engineering,
and mathematics to select high school students. R. at 3. Petitioner and Ms. Triton
had different reasons for applying to Technical Promise. Petitioner, a once avid
video game player, initially wanted to attend Technical Promise to learn video game
programming, but later decided to pursue hacking. R. at 4, 12. Ms. Triton, was
interested in chemical engineering. R. at 4. Both students were accepted into
Technical Promise on February 8, 2012. R. at 4.
Between November 2011 and early February 2012, Mrs. Ascot and
Petitioner’s relationship grew. R. at 4. During that time, Mrs. Ascot and Petitioner
realized they shared similar video game interests. R. at 3. One of those games was
“World of Masquerade” (“WOM”), a popular online role playing game. R. at 3.
Eventually, the two women joined the same guild and frequently played together.
R. at 4. In addition, Mrs. Ascot began meeting Petitioner after school to tutor her in
C++, which not necessary for Mrs. Ascot’s class. R. at 4. Mrs. Ascot even attended
dinner at Petitioner’s household several times. R. at 4.
IV.
Petitioner and Mrs. Ascot Develop 3D-Code Capable of Printing a
Perfect Cylinder
On April 3, 2012, Ms. Triton’s father, Hershel Triton, bought a 3D printer to
experiment with plastic filament formulas. R. at 7. As an experienced chemical
engineer for a major American weapons manufacturer, Mr. Triton believed he could
create a new plastic filament formula that would perform better than commercially
available filaments. R. at 7. Ultimately, he wanted his formula to be resilient
enough to withstand the heat from a gunshot. R. at 7. Mr. Triton downloaded 3D
4
printable gun plans to test his formulas, and stored the plans on a gold USB drive.
R. at 7, 9.
A few weeks later, Petitioner, while visiting the Tritons, became interested in
Mr. Triton’s 3D printer. R. at 7. Mr. Triton explained to Petitioner how the
machine worked and informed her about its software issues. R. at 7. Petitioner
offered to fix the software code in exchange for a 3D-printed model of her WOM
character. R. at 7. Mr. Triton quickly agreed. R. at 7. Over the next few days,
Petitioner discovered an error that caused the 3D-printer to print an imperfect
curve. R. at 7. She tried to solve the problem on her own, but soon reached an
impasse. R. at 7.
On April 26, 2012, Petitioner asked Mrs. Ascot to help her correct the code.
R. at 7. During their meeting, they discussed a recent WOM database hack
orchestrated by Dixie Millions. R. at 8. Petitioner was curious about the hack and
Dixie Millions. R. at 8. In response to Petitioner’s questions, Mrs. Ascot
characterized Dixie Millions as “White Hat Hackers” and told Petitioner that she
believed Mr. Allen, the founder, was “an admirable person.” R. at 8. Mrs. Ascot
also told Petitioner that she planned to retire her WOM character in light of the
information revealed by the hack. R. at 8. At the end of the meeting, Mrs. Ascot
believed the two were close to solving the coding error and asked Petitioner if she
could finish the corrections on her own. R. at 8. Petitioner, excited that the error
was nearly fixed, allowed Mrs. Ascot to take the code home. R. at 8. On May 1,
2012, Mrs. Ascot gave Petitioner the perfected code. R. at 8. Petitioner then
5
contacted the Tritons, took credit for the code, and scheduled a time to try “her”
code. R. at 8–9. The next night, Petitioner and Mr. Triton printed a test model. R.
at 9.
A few days later, Petitioner suggested that Mr. Triton print a perfect cylinder
to demonstrate how impressive the corrected software was. R. at 10. Realizing this
demonstration would be useful for his firearm tests, Mr. Triton agreed. R. at 10.
Together, the two designed and printed a 6 1/2 –inch tall, 1/2 inch diameter
cylinder, with a “thicker raft than usual” using standard plastic filament. R. at 10.
A perfect cylinder appeared twelve hours later. R. at 10. Because Petitioner no
longer played WOM, she asked Mr. Triton if she could keep the cylinder, and he
agreed. R. at 10.
V.
Petitioner and Ms. Triton Prepare to Leave for Azran
On May 4, 2012, Mrs. Ascot, Petitioner, and Ms. Triton met to discuss
Technical Promise for the last time. R. at 9. Mrs. Ascot encouraged Petitioner and
Ms. Triton their bring projects to Azran. R. at 9. She also urged them to wear the
“White Hat.” R. at 9.
Mr. Triton and his daughter continued working on his filament formula
throughout May 2012. R. at 11. Ms. Triton asked her father if she could bring the
formula with her to Azran to continue working on it at Technical Promise. R. at 11.
Mr. Triton did not want her to bring it because he was worried someone would steal
his idea. R. at 11. Despite her father’s wishes, Ms. Triton downloaded the formula
onto a USB drive to take to Azran. R. at 11.
6
Petitioner, following Mrs. Ascot’s advice, decided to pursue hacking, like Mr.
Allen and Dixie Millions. R. at 11. She spent all of May researching Mr. Allen on
the Darknet because she believed he was the ultimate “White Hat Hacker.” R. at
11. Petitioner also thought Mrs. Ascot would be proud of her for modeling herself
after Mr. Allen. R. at 7, 11.
While researching Mr. Allen, Petitioner discovered a list of recent places
where he had been spotted in Azran. R. at 11. Petitioner wanted to meet Mr. Allen
and ask for his mentorship, so she compiled his location data onto a spreadsheet
from the past few years in the hopes of deducing a pattern. R. at 11–12. Soon, she
realized that Mr. Allen visited the same University of Misthallery café every
Tuesday that fell on a prime number. R. 12. Petitioner planned to meet him at the
café on June 5, 2012 so that she could introduce herself and impress him with her
modified curve, the perfect cylinder, and her location spreadsheet. R. at 12. She set
a calendar reminder on her phone for Tuesday, June 5, 2012 with the label “Meet
Clive Allen at Café.” R. at 12. This reminder was set to alert her the day before the
meeting. See R. at 12.
VI.
Petitioner’s Arrest
Mr. Triton drove Ms. Triton and Petitioner to the airport on the morning of
June 4, 2012. During a routine traffic stop, Mr. Triton was arrested for an
outstanding warrant. R. at 15. Mr. Triton told Officer Smith that he was on his
way to drop Petitioner and Ms. Triton off at the airport for their flight to Azran. R.
at 15. Petitioner and Ms. Triton were concerned they would miss their flight. R. at
7
18. While consoling Petitioner and Ms. Triton, Officer Smith heard Petitioner’s
calendar alert and saw the reminder titled “Meet Clive Allen at Café.” R. at 15.
The reminder startled Officer Smith because the FBI had recently informed his
department that Mr. Allen’s associate was operating in the area. R. at 15. Upon
seeing Petitioner’s alert, Officer Smith arrested Mr. Triton, Ms. Triton, and
Petitioner on suspicions of aiding and abetting a known fugitive. R. at 15.
Police secured a warrant and searched Mr. Triton’s car. R. at 16. They found
matches, hairspray, a 3D-printed cylinder, curve code, a spreadsheet tracking Mr.
Allen’s Azranian locations, and Mr. Allen’s computer-generated image in
Petitioner’s possession. R. at 16. In addition, they discovered 3D-printable gun
plans on a gold USB drive and Mr. Triton’s filament formula on another USB. R. at
16. The U.S. Attorney subsequently filed charges against Mr. Triton, Ms. Triton,
and Petitioner. R. at 16.
VII.
Proceedings Below
Mr. Triton and his daughter agreed to provide the FBI information about
Mrs. Ascot and accepted plea bargains. R. at 16. Petitioner, against the advice of
counsel, refused to cooperate. R. at 16. Instead, she hired another lawyer and,
against her parents’ advice, proceeded to trial. R. at 17. At trial, the Government
proved, beyond a reasonable doubt, that Petitioner possessed destructive devices as
defined by 26 U.S.C. § 5845(f)(3) (2015). R. at 22. The jury also convicted Petitioner
under 18 U.S.C. § 2339B (2015), for providing material support to an FTO.
Petitioner was sentenced to a total of seventeen years. R. at 18.
8
Petitioner appealed to the U.S. Court of Appeals for the Fourteenth Circuit.
R. at 2. On appeal, she argued that the District Court applied the incorrect
standard for “intent” under Section 5845 and that Section 2339B unconstitutionally
abridged her First Amendment rights. R. at 18, 21. R. at 2. The Fourteenth
Circuit affirmed the District Court. R. at 2. Petitioner then petitioned for writ of
certiorari, which this Court granted. R. at 1.
SUMMARY OF ARGUMENT
In an era where coordinated terrorist attacks can happen at the blink of an
eye, ensuring the nation’s safety should be this Court’s utmost concern. Thus, this
Court should not and cannot turn a blind eye to the fact that even bright, young
individuals can threaten national security. This is especially true when that
individual possessed destructive devices, and intended to share valuable
information with a known terrorist. In light of the countervailing interest
in preventing terrorism, this Court should uphold the Fourteenth Circuit Court
of Appeals.
I.
Section 5845(f)(3) prohibits an individual from possessing component parts
that can be readily assembled into a destructive device. Destructive devices include
bombs, projectiles, or similar devices. Section 5845(f)(3) necessarily encompasses
parts designed or fabricated using a 3D-printed because the statute does not
exclude devices based on how they are made. Furthermore, courts have routinely
extended Section 5845(f)(3) to include crude and homemade devices.
9
Here, Petitioner possessed two destructive devices: a primitive pipe bomb and
plans for an exploding gun under a mixed motive standard. This Court should
adopt a mixed motive standard because this standard comports with the statutory
language and is sensible in its application. The mixed motive standard involves two
inquiries. First, if the parts have no legitimate social purpose or are designed to be
a weapon, then the possessor violates the statute, irrespective of intent. However, if
the components have a social purpose, then this Court should consider the totality
of circumstances, including the individual’s intent.
Accordingly, Petitioner is liable under Section 5845(f)(3) because her suitcase
components, when assembled, had no legitimate purpose other than to be used as
weapon. Even if Petitioner’s components had social value, she is still liable under
5845(f)(3) given her terrorist sympathies, impressionable nature, and scientific
wherewithal.
Lastly, this Court should uphold the jury’s conviction because the jury was
best positioned to weigh evidence demonstrating the device’s destructive
capabilities and consider Petitioner’s credibility.
II.
Petitioner’s conviction under Section 2339B must also stand. First, the
statute does not suppress Petitioner’s right to freely associate or support Dixie
Millions. Rather, the statute only prohibits her from providing “material support”
to an FTO. Because this conduct rarely abridges an individual’s First Amendment
Rights, Petitioner’s facial challenge fails. As applied to Petitioner, Section 2339B
10
proscribes her conduct, namely her attempts to give valuable “training,” “expert
advice” or “personnel” to a known FTO. Petitioner’s as applied challenge also fails
under strict scrutiny because the Government has a compelling interest in
protecting national security.
Second, the statute does not violate Petitioner’s right to due process under
the Fifth Amendment. Section 2339B is not unconstitutionally vague on its face
because it includes a scienter requirement which puts a person of ordinary
intelligence on fair notice of what conduct is prohibited. Furthermore, Section
2339B’s clear and definite terms prevents arbitrary or discriminatory enforcement.
Lastly, sufficient evidence supports Petitioner’s conviction. Her excessive
Darknet research and detailed plans demonstrated a substantial step toward
providing Mr. Allen with valuable resources. The Government proved that
Petitioner attempted to provide Clive Allen, the founder of a designated FTO, with
potentially dangerous computer code and her own expertise. These actions
constitute material support in violation of Section 2339B. Thus, this Court should
uphold the jury’s conviction because a rational trier of fact determined that
Petitioner knew Dixie Millions was a designated FTO, intended to provide valuable
materials, and took a substantial step toward providing such support.
11
ARGUMENT
I.
PETITIONER CAN BE CHARGED UNDER 26 U.S.C. § 5845(f)(3)
BECAUSE THE DESIGN AND FABRICATION OF EXPLOSIVE PARTS ON
A 3D PRINTER CONSTITUTES A “DESTRUCTIVE DEVICE,”
IRRESPECTIVE OF WHETHER EACH INDIVIDUAL COMPONENT HAS
A LEGITIMATE PURPOSE.
Congress passed the National Firearms Act of 1934 (“NFA” or “Title I”) to
regulate firearms in light of increasing gun ownership and the rise of gangsteraffiliated crime. Franklin E. Zimring, Firearms and Federal Law: The Gun Control
Act of 1968, 4 J. Legal Stud.133, 137–38 (1975). The NFA mandates registration
and taxation of firearms. Id. Given its purpose and history, this Court has
recognized that the NFA is a “regulatory measure in the interest of the public
safety.” United States v. Freed, 401 U.S. 601, 609 (1971). In 1968, Congress
supplemented the NFA’s regulations with the Gun Control Act (“GCA” or “Title II”).
Zimring at 144. Aware of the NFA’s limits, the GCA extended the NFA’s purview so
that the NFA not only covered traditional firearms, but also included “destructive
devices.” Id. at 14; Pub. L. No. 90-618, 82 Stat 1213; see also 26 U.S.C. § 5845.
(2015).
Under Section 5845(f)1, the NFA regulates three independent categories of
destructive devices. Subsection (1) defines a destructive device as “any explosive,
incendiary, or poison gas [such as] (A) bomb, (B) grenade, (C) rocket having a
propellent charge of more than four ounces, (D) missile having an explosive or
1 Section 5845(f) is the “definitions” section of the NFA. Section 5801 and 5802
12
incendiary charge of more than one-quarter ounce, (E) mine, or (F) similar device.” §
5845(f)(1). Per subsection (2), a destructive device can also be:
[A]ny type of weapon by whatever name known which will, or which
may be readily converted to, expel a projectile by the action of an
explosive or other propellant, the barrel or barrels of which have a bore
of more than one-half inch in diameter, except a shotgun or shotgun
shell . . . generally recognized as particularly suitable for sporting
purposes.
§ 5845(f)(2).2 Finally, subsection (3) recognizes that a destructive device, in its
component parts, can also be subject to the NFA. § 5845(f)(3). Subsection (3)
includes “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.” § 5845(f)(3). Thus, a
destructive device does not need to be pre-assembled to trigger NFA regulation. Id.
Finally, Section 5845(f) limits its reach, noting that destructive devices:
[S]hall 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.
Id.
2 18 U.S.C. § 921 (2006), the definitions section for the GCA, provides a similar
definition for “destructive device.” Thus, this brief will cite to cases that interpret
“destructive device” under both Section 921 and Section 5845. See United States v.
Lussier, 128 F.3d 1312, 1314 n.3 (9th Cir. 1997) (“The definition of a destructive
device in Section 921 is virtually identical to that in the statute prohibiting
unregistered possession of these objects, 26 U.S.C. § 5845(f). We can therefore look
to cases interpreting § 5845(f) for guidance in interpreting § 921.”).
13
A.
Section 5845(f)(3) Includes the Design and Fabrication of 3D Printed
Parts As Congress Used Broad Language to Ensure the Statute
Encompassed Modern Weaponry.
Congress anticipated Section 5845(f)(3) to cover Petitioner’s primitive 3D
printed pipe bomb, and other 3D printed components that are readily transformed
into destructive devices. The fear of unregulated military surplus weapons entering
the market is now the fear of instant, easily concealable 3D printed weaponry.
Thus, as a preliminary matter, this Court must conclude that Section 5845(f)(3)
does not exclude destructive devices merely because an individual designs or
fabricates its components using a 3D printer. This interpretation is apparent
through the statute’s text, Congress’s intent, and the paramount importance in
maintaining national security.
1.
The statute’s language does not exclude 3D printed components.
Courts first look to the statute’s language and structure in determining the
scope of the statute. See United States v. One Sentinel Arms Striker, 416 F.3d 977,
979 (9th Cir. 2005). Looking at Section 5845(f)’s language and structure, it is clear
that the statute does not exclude “destructive devices” based on how “component
parts” are created. See, e.g., United States v. Johnson, 152 F.3d 618, 627 (7th Cir.
1998) (“We do not think the statute contemplates that the imposition of criminal
liability ought to turn on the degree of workmanship of the device.”); United States
v. Ragusa, 664 F.2d 696, 700 (8th Cir. 1981) (holding that crudely constructed
device composed of trash bags, gasoline, matches, and paper towels fit within the
statute because it possessed “all the physical components of a device similar to a
14
bomb”). Rather, the text only excludes devices that are repurposed for legitimate
uses. See, e.g., § 5845(f)(3) (excluding pyrotechnics, signaling flares, line throwing,
or other devices used for safety). Accordingly, the statute includes 3D printed
components so long as they can be “readily assembled” into a destructive device and
cannot be repurposed for legitimate uses.
2.
Congress intended Section 5845(f)(3) to include homemade
devices.
Moreover, homemade 3D printed devices fit within Congress’s intent in
passing the NFA and GCA. Congress originally intended the GCA to regulate
firearms and other destructive devices entering the market through military
surpluses and foreign imports. Zimring at 144. Despite Congress’s initial interest
in restricting commercial military weaponry, “the courts have understood the
Congressional concern to extend to homemade devices.” United States v. Johnson,
152 F.3d 618, 624 (7th Cir. 1998); see also United States v. Peterson, 475 F.2d 806,
810 (9th Cir. 1973) (“Congress intended to foster law and order . . . by the
proscription of original and converted military type weapons and, also, the do-ityourself type of similar devices and weapons of crime, violence, and destruction.”);
Morningstar, 456 F.2d 278 at 281 (The legislative history is “not so conclusive” that
Congress only intended to restrict bombs and weapons employed by gangsters or
military ordinance.); United States v. Greer, 588 F.2d 1151, 1155 (6th Cir. 1978)
(Congress intended to proscribe “street varieties of homemade instruments.”)
15
Despite the fact that courts have extended Section 5845(f) to non-military
weapons and other crude devices, Congress has not substantively3 amended or
repealed the statute since its inception. See Pub L. No 94–455, 90 Stat. 520 (1976);
Pub L. No. 99–308, 100 Stat. 449 (1986); See, e.g., United States v. Cruz, 492 F.2d
217, 219 (2d Cir. 1974) (extending coverage to molotov cocktails “since they have no
use besides destruction”). Thus, using the statutory canon of acquiescence,
Congress’s failure to modify Section 5845(f) demonstrates its approval and intention
for a broad application. See, e.g., Apex Hosiery Co. v. Leader, 310 U.S. 469 (1940)
(Despite the fact courts applied the Sherman Anti-Trust Act to labor unions,
Congress’s long time failure to alter the Act was “persuasive recognition that the
judicial construction [was] the correct one”).
3.
As a policy matter, the NFA should regulate 3D-printed
destructive devices.
Congressional concern in the 1960s over the prevalence of military surplus
grenades and homemade weaponry applies equally to the situation here. Now,
technology allows anyone with a 3D printer to create a homemade explosive with
the click of a button. The FBI has recognized that 3D printers “support the
advanced technical exploitation of evolving and existing high technology explosive
devices.” Federal Business Opportunities, Stratasys Objet24 Personal 3D Printer,
https://www.fbo.gov/index?s=opportunity&mode=form&tab=core&id=a63c2f0c47939
6b13c502bcf25574fe3&_cview=0. Moreover, typical safety measures, like X-ray
3 While Congress amended the Act in 1976 and 1986, it did not substantively
change or alter the definition of destructive devices.
16
machines, cannot detect 3D weapons if they are broken down into their component
parts. Undetectable Firearms Act, Pub. L No. 113-57, 127 Stat. 656 (December, 9,
2013); Huffington Post, Feds Printed Their Own 3D Gun And It Literally Blew Up
In Their Faces http://www.huffingtonpost.com/ 2013/11/13/3d-gunsatf_n_4269303.html. Given that the NFA regulates homemade devices and given
the security concerns surrounding 3D printing, Section 5845(f)(3) includes explosive
devices designed and fabricated on a 3D printer.
B.
A “Mixed Motive” Standard Is the Appropriate Standard to
Apply to 26 U.S.C. § 5845(f)(3) Because It Comports with the
Statute’s Language and This Court’s Precedent.
Not every device designed or fabricated on a 3D printer will fall within
Section 5845(f)(3)’s ambit. An individual will be charged for possessing a
destructive device when the device is inherently dangerous or when she has the
requisite level of intent. However, Section 5845(f)(3) does not specify what level is
required. Consequently, courts have adopted three different standards. See, e.g,
Morningstar, 456 F.2d 278 (4th Cir. 1972) (applying a subjective standard); Ragusa,
664 F.2d 696, 700 (8th Cir. 1981) (applying an objective standard); United States v.
Tankersley, 492 F.2d 962, 966 (7th Cir. 1974) (applying mixed motive standard).
This split has lead to inconsistent application and absurd results. For
example, in United States v. Oba, 448 F.2d 892, 894 (9th Cir. 1971), the Ninth
Circuit—using a subjective standard—held that defendant’s commercial dynamite
wrapped in wire, equipped with a fuse, and caps was a destructive device. They did
so because the defendant explicitly intended to bomb Eugene, Oregon. Id. On the
17
other hand, the Second Circuit—using an objective standard—reached the opposite
conclusion regarding commercial dynamite. United States v. Posnjak, 457 F.2d
1110, 1116 (2d Cir. 1972). There, the court held that the defendant did not possess
a destructive device despite the fact that he sold thousands of commercial dynamite
with fuse and caps knowing it would be used for mass destruction. According to the
Second Circuit, this could not constitute a destructive device simply because
Congress did not intend Section 5845(f)(3) to cover commercial blasting dynamite.
Id. Thus, applying objective and subjective standards leads to polarizing results.
To avoid diametric consequences, this Court should uphold the Fourteenth
Circuit and adopt a mixed motive standard. Under this standard, intent, among
other factors, is relevant in determining whether an individual possessed a
destructive device. This standard first considers “the objective characteristics of the
device or component parts.” Johnson, 152 F.3d at 623. “If the objective design of
the [ . . . ] component parts indicates that the object may only be used as a weapon,
i.e., for no legitimate social or commercial purpose” then subjective intent will not
be considered. Id. If, however, the components have a social or commercial
purpose, “then subjective intent is an appropriate consideration in determining
whether the [ . . . ] parts at issue constitute a destructive device under subpart (3).”
Id.
Thus, Respondent respectfully requests this Court adopt the mixed motive
standard because the statute itself, by using the words “designed or intended to
18
design” necessitates an objective and subjective inquiry, and because the mixed
motive standard comports with this Court’s precedent.
1.
The statute’s disjunctive language necessitates a mixed
motive standard.
Under Section 5845(f), the government can prove that an object is a
“destructive device” in two ways: (1) the object was fully assembled and could
detonate; or (2) the defendant “had ready access to all necessary components to
readily assemble an object that could detonate.” United States v. Lockwood, 789
F.3d 773, 779 (7th Cir. 2015). Subsection 5845(f)(1) and (2) lists assembled
destructive devices proscribed by the NFA without mention of “intent or design.”
Thus, courts will not analyze possessor’s intent if a fully assembled weapon falls
under subsection (1), like a firearm, or subsection (2), like a grenade. See United
States v. Copus, 93 F.3d 269, 272–73 (7th Cir. 1996); see also Posnjak, 457 F.2d at
1119 (“[W]hen it is clear that the assembled device created by combining the
components falls within (1) or (2), intent is irrelevant, for the parts are clearly
“designed” to convert the device into a destructive device.) (emphasis added).
Section 5845(f)(3), unlike (f)(1) and (2), has language that supports a mixed
motive standard. See Caminetti v. United States, 242 U.S. 470, 485 (1917) (“It is
elementary that the meaning of a statute must, in the first instance, be sought in
the language in which the act is framed.”) First, the statute uses disjunctive
language, stating that a destructive device can be made up of “any combination of
parts either designed or intended for use in converting any device into a destructive
device.” Thus, the government need only prove either to prevail. See United States
19
v. Lussier, 128 F.3d 1312, 1314 n.6 (9th Cir. 1997) (holding that the Government
could successfully proceed on a “design” theory without showing “intent.”); United
States v. Pearce, 86 F. App'x 919, 921 (6th Cir. 2004) (“[T]he word ‘designed; in this
context refers to the objective, physical structure or method of operation and not to
the intent or schemes of the possessor.”). Accordingly, the language of the statute
necessitates both a subjective and objective inquiry, best captured by the mixed
motive test.
2.
The mixed motive standard aligns with this Court’s mens
rea jurisprudence regarding the NFA.
This Court has not specified what standard of intent should be applied to
Section 5845(f). This Court has, however, examined the NFA’s registration
requirement under Section 5861(d) as applied to fully assembled destructive devices
and firearms. This Court has held that there is no automatic mens rea requirement
when the statute does not specify intent. See Staples v. United States, 511 U.S. 600,
619 (1994). Often, the nature of the device itself guides the mens rea standard.
In United States v. Freed, 401 U.S. 601, 607 (1971), this Court held that
failure to register a hand grenade—a destructive device under the NFA—did not
require a specific mens rea. In so doing, this Court acknowledged that a certain
class of activities “affecting public health, safety, and welfare” do not necessarily
require mens rea. Id.; see, e.g., United States v. Balint, 258 U.S. 250, 253 (1922)
(holding that defendant need not know the drugs he sold were statutorily proscribed
under the Narcotic Act of 1914 to be culpable); United States v. Int’l Minerals &
Chemical Corp., 402 U.S. 558, 559, 565 (1971) (imputing knowledge on defendant
20
despite statute’s use of the term “knowingly” when “dangerous or deleterious
devices” are involved). Thus, this Court imposed strict liability on grenades because
they are “highly dangerous offensive weapons” and “one would hardly be surprised
to learn that possession of hand grenades is not an innocent act.” Id. at 609.
In Staples v. United States, 511 U.S. 600, 610 (1994) this Court upheld the
reasoning of Freed, but applied a different mens rea requirement to gun possession.
There, the government charged defendant with possession of an unregistered
machine gun. Id. at 602–03. Unbeknownst to the defendant, his semiautomatic
rifle had been modified to enable automatic fire. Id. at 602–03. The defendant
asserted that he never fired the gun automatically, and therefore, did not know that
his weapon required Title II registration. Id. This Court recognized that Congress’s
silence regarding mens rea “by itself does not necessarily suggest that Congress
intended to dispense with a conventional mens rea element.” Id. at 605.
This Court distinguished Freed and Balint noting that guns, unlike grenades
and narcotics, are not inherently dangerous. Id. at 614–15. First, guns, that are
not considered Title II weapons, have a longstanding tradition of lawful ownership.
Id. at 611. Second, a gun, unlike other weapons, could easily become a machinegun
with simple “wear and tear” or “internal modification.” Id. at 615. Thus, a gun may
implicate the NFA with “no externally visible indication that it is fully automatic.”
Id. Third, the harsh potential penalty of up to ten years of imprisonment for merely
failing to register favored a mens rea component. Id. at 616–17. For these reasons,
21
the Court held that an individual possessing machinegun must necessarily know
that his weapon constitutes a statutorily defined “firearm.” Id. at 619.
However, the Staples Court declined to adopt “a definitive rule of
construction.” Id. at 618–19. Instead, this Court emphasized that their “holding
was a narrow one” premised on “a commonsense evaluation of the nature of the
particular device or substance Congress has subjected to regulation and the
expectations that individuals may legitimately have in dealing with the regulated
items.” Id. at 619. Therefore, this Court’s precedent supports adopting a mixed
motive standard that does not consider intent if the device is “inherently
dangerous,” and considers some level of intent if the device has legitimate uses.
C.
Sufficient Evidence Supports Petitioner’s Conviction Under Section
5845(f)(3) Because She Possessed All the Components Necessary to
Readily Assemble a Destructive Device.
The evidence, viewed in the light “most favorable to the Government,” is
sufficient to uphold Petitioner’s conviction under the mixed motive standard.
United States v. Markley, 567 F.2d 523, 526 (1st Cir. 1977) (applied to destructive
devices). Petitioner possessed a destructive device under either an objective or a
subjective standard because the mixed motive test encompasses both inquiries.
First, the Court looks to the “objective characteristics of the device or its
components.” See Tankersley, 492 F.2d 962 at 966; Johnson, 152 F.2d 618 at 627.
“If the objective design of the device or component parts indicates that the object
may only be used as a weapon, i.e., for no legitimate social or commercial purpose,
then the inquiry is at an end and subjective intent is not relevant.” Id. at 628. In
22
this case, Petitioner’s components objectively had no legitimate social purpose; the
combination of a 3D-printed cylinder, hairspray, and matches could only be a
primitive pipe bomb. See R. at 18.
Second, if the unassembled parts form an object with both legitimate and
illegitimates uses, “then intention to convert the components into the ‘destructive
device’ may be important.” Tankersley, 492 F.2d 962 at 966 (citing Posnjak, 457
F.2d 1110 at 1119) (emphasis added). Intent, however, is but one factor in this
analysis. This Court should look to the totality of the circumstances and uphold the
jury’s finding given Petitioner’s intent, her terrorist sympathies, and her propensity
for subversion. R. at 17–20; see United States v. Price, 877 F.2d 334, 337 (5th Cir.
1989) (On review, courts must “draw[] all reasonable inferences and make[] all
credibility choices which support the jury’s verdict.”). Accordingly, no matter the
standard applied, Petitioner possessed a destructive device under Section 5845(f)(3).
1.
Looking to the objective characteristics of the device, Petitioner
possessed a destructive device because the components in her
luggage, when combined, had no legitimate social or commercial
purpose, and were capable of exploding.
Petitioner’s objects had no legitimate social purpose and constitute a “bomb”,
under Section 5845(f)(1)(A), or a “similar device,” under (F). When a combination of
objects has no legitimate purpose, intent is irrelevant. See, e.g., United States v.
Urban, 140 F.3d 229, 234 (3d Cir. 1998) (“[I]ntent to use the components as a
weapon (to assemble them into a device to be used as a weapon) is irrelevant when
the parts are clearly designed to be used in constructing a device which is
specifically regulated by Section 5845(f)(1) or (2).”). Thus, all that was needed to
23
implicate Petitioner under Section 5845(f)(3) was a finding that she possessed
dangerous items with no legitimate use. See Ragusa, 664 F.2d at 699 (The NFA’s
emphasis on unlawful possession, rather than the use of the device “suggests that
the possessor need not use the firearm in the commission of any particular sort of
crime to be in violation of the statute.”).
a.
Petitioner’s intent is irrelevant because the 3D-printed
cylinder is designed for use as a weapon.
Objectively, Petitioner’s suitcase components, which included the cylinder,
hairspray, and matches, have no purpose but to be used as an explosive. 4 Initially,
Mr. Triton agreed to print the cylinder because it “could be useful for his firearm
tests.” R. at 10. Petitioner stated that the cylinder with the attached raft “looked
like a trophy.” To an objective person, like Officer Smith or the members of the
jury, the cylinder may look more like the main component of a pipe bomb than a
trophy. See R. at 10; Appendix B. Moreover, the raft, which is usually removed
from 3D-printed objects, would stabilize a makeshift explosive. R. at 10. Thus, the
3D-printed cylinder was designed and fabricated to be a weapon, and had no use
other than to be an explosive device. See United States v. Pearce, 86 F. App'x 919,
921 (6th Cir. 2004) (“[T]he word ‘designed; in this context refers to the objective,
physical structure or method of operation and not to the intent or schemes of the
possessor.”).
The composition of Petitioner’s 3D-printed cylinder demonstrates its
potential danger. Courts have concluded that homemade bombs comprised out of
4 Respondent argues Borne possessed components to make a primitive pipe bomb.
24
plastic containers or objects can be “destructive devices.” See United States v.
Hedgcorth, 873 F.2d 1307, 1312 (9th Cir. 1989) (plastic water jugs); United States v.
Buchanan, 787 F.2d 477, 479 (10th Cir. 1986) (plastic milk container). Here, the
cylinder was made of a stronger thermo plastic5 than other plastics, making it more
analogous to steel pipes. See United States v. Worstine, 808 F. Supp. 663, 667 (N.D.
Ill. 1992) (holding that a steel pipe bomb was a “destructive device” but a brittle
PVC pipe was not because its potential explosion would yield a low risk of injury).
Finally, Petitioner could readily assemble these components as everything
was in her luggage and she had the wherewithal to do so. R. at 17–18. This finding
is all that is needed to convict her. See, e.g., United States v. Campbell, 685 F.2d
131, 132 (5th Cir. 1982) (A destructive device falls within the NFA regardless of
whether “the homemade destructive device is easily transported or one of a
dispersed nature, assembled on particular premises to accomplish their ruin.”);
United States v. Uzenski, 434 F.3d 690, 702–03 (4th Cir. 2006) (“[T]he Government
need only show that the components of the device could be ‘readily assembled’ into a
bomb.”). Because the suitcase components had no legitimate social purpose, and
because Petitioner could readily assemble the components, this Court should find
she possessed a destructive device, irrespective of any intent.
5 Mr. Triton used commercially available 3D plastic filament to create the cylinder.
R. at 10. 3D printed plastic can withstand up to 450 degrees Fahrenheit whereas
PVC pipes can only be used to withstand 140 degrees Fahrenheit, thus making it a
stronger, more likely to withstand pressure and create an explosion. See
http://3dprintingforbeginners.com/filamentprimer/.
25
b.
The ballistics expert’s testimony provided sufficient
evidence for Petitioner’s conviction.
The Government’s expert testimony showing these materials make a bomb is
sufficient to support the jury’s finding that Petitioner possessed a destructive
device. Expert testimony is often the linchpin of the “destructive device” analysis.
See generally United States v. Rushcamp, 526 F.2d 1380, 1382 (6th Cir. 1975);
Johnson, 152 F.3d at 618. In Johnson, the defendant placed a fuse, dark powder,
nails, candles, and a plastic pipe into a store bag as a hoax. Id. at 620. At trial,
defendant presented expert testimony that the devices were not designed as
weapons. Id. at 621. Specifically, the fire powder in the device would not burn
rapidly enough and the pressure was too low to explode. Id. at 621. The
government’s expert disagreed. Id. at 622. The expert indicated that the fire
powder could burn violently in the open and could produce an explosion given
proper containment. Id. at 622. The jury weighed the evidence and convicted the
defendant of possessing a destructive device based on the combination of parts. Id.
The Seventh Circuit upheld the conviction, finding that the district court did not err
“in its decision to exclude evidence of the defendant's actual intent in making the
devices.” Id. at 628. Rather, the “objective characteristics of these devices indicated
that they were useful only as weapons.” Id.
Here, the FBI ballistics expert testified and demonstrated that “the contents
of Petitioner’s weapons could be used to make a bomb.” R. at 18. Petitioner failed
to offer rebutting expert testimony. And, the jury was in the best position to
evaluate the evidence. See United States v. Spoerke, 568 F.3d 1236, 1247 (11th Cir.
26
2009) (“The jury was free to credit the testimony of the government's expert and
discredit the testimony of [defendant’s evidence].”) Thus, this Court, like the
Johnson court, should defer to the jury’s reliance on the Government’s expert
testimony and uphold Petitioner’s conviction.
2.
Even if the 3D parts and plans have a legitimate social purpose,
these items are destructive devices given Petitioner’s terrorist
sympathies, influential affiliates, and scientific acumen.
Even considering Petitioner’s subjective intent, this Court should not reverse
both lower courts because the jury based their finding on the totality of all the
circumstances. These components and Petitioner’s behavior—in isolation—may
seem innocuous. However, under the totality of the circumstances, the jury
concluded that Petitioner’s actions painted a far more devious picture. Accordingly,
Petitioner possessed two “destructive devices”: (1) a primitive pipe bomb and (2) an
exploding device comprised of the gun plans and filament formula.
a.
Taken as a totality, the components found in Petitioner’s
suitcase constituted a destructive device.
To the extent that this Court finds that the 3D plastic cylinder and other
components have any legitimate social purpose, thereby making Petitioner’s
subjective intent relevant, this Court should not reverse Petitioner’s subjective
intent demonstrate that the components constituted a destructive device
Petitioner’s terrorist activities, third party affiliates, and the ease of assembling the
device weigh in favor of determining liability under Section 5845(f)(3).
27
i.
Petitioner’s terrorist allegiances are evidence of her
liability under Section 5845(f)(3).
Petitioner’s terrorist sympathies support the jury and expert’s finding that
her suitcase components are a destructive device. See, e.g., United States v.
Worstine, 808 F. Supp. 663, 670 (N.D. Ind. 1992) (considering defendants’ terrorist
affiliations in destructive device analysis and finding that components were not a
destructive device because defendants were not associated with a terrorist
organization). Petitioner is fascinated with Dixie Millions—a designated FTO—and
testified that she “thought it would be pretty cool if [her teacher] was Dixie.” R. at
17.
Moreover, Petitioner wanted Mr. Allen, the founder of Dixie Millions, to be
her mentor. R. at 12. She spent an entire month researching on the Darknet so
that should could meet him and impress him with the cylinder. R. at 12. She also
expressed interest in general hacking, terrorist activities and a specific admiration
for “white hat” hacking. R. at 12. This highly relevant information speaks to
Petitioner’s subjective state of mind. Accordingly, because potential terrorists often
exhibit ideological motivation, a rational fact-finder could use this evidence to
support the finding that Petitioner possessed a destructive device. See Luis de la
Corte, Explaining Terrorism: A Psychosocial Approach, PERSPECTIVES ON
TERRORISM, Vol. 1, No. 2 (2007) available at http://www.terrorismanalysts.com
/pt/index.php/pot/issue/view/2. (“[S]ome common psychological attributes among
terrorists are a lack of empathy with their victims, dogmatic or ideological
mentality, or a simplistic or utopian worldview”).
28
ii.
Third party intent is evidence of Petitioner’s liability
under Section 5845(f)(3).
In addition, third party intent can be imputed to Petitioner. See United
States v. Blackwell, 946 F.2d 1049, 1054 (4th Cir. 1991) (concluding the “requisite
intent is present when the individual who possesses the component parts intends
that a third party will use the components”). Petitioner planned to give the 3D
cylinder, curve code, and other items to Mr. Allen. R. at 12. Thus, as Mr. Allen is
one-half of the designated FTO Dixie Millions, a jury could reasonably look to Mr.
Allen’s potential nefarious uses of the destructive device components.
Furthermore, Mrs. Ascot, the highly suspected counterpart of Dixie Millions,
was intimately involved in creating the cylinder code. R. at 13. Mrs. Ascot
encouraged Petitioner to bring the code to Azran knowing that Petitioner would be
near Mr. Allen. R. at 9. In addition, Mr. Triton, who worked for a major weapons
manufacturer, printed the cylinder because it “would be useful for his firearm
tests.” R. at 10. Thus, the jury could impute Mrs. Ascot’s and Mr. Triton’s
motivation for the design and fabrication of the 3D-printed parts in concluding that
Petitioner possessed a destructive device.
iii.
The timing and circumstances of Petitioner’s arrest
are evidence of Petitioner’s liability under Section
5845(f)(3).
Petitioner was arrested on the way to the airport with plans to meet a foreign
terrorist. R. at 15. This is yet another relevant factor in this Court’s totality of the
circumstances analysis. See Worstine, 808 F. Supp. at 670 (acknowledging the time
of year the components were found – around the Fourth of July – to support
29
defendant’s excuse that he used PVC pipe bombs for fireworks). Specifically, Officer
Smith found Petitioner in possession of these weapons knowing that she was on her
way to the airport. R. at 15. See generally United States v. Aukai, 497 F.3d 955,
962 n.6 (9th Cir. 2007) (September 11, 2001 “required a fundamental change in the
way [the United States] approaches the task of ensuring the safety and security of
the civil air transportation system.”). Furthermore, just the week before
Petitioner’s arrest and flight, the FBI notified police that Mr. Allen’s associate was
living in Harrisburg. R. at 15. Given that she was en route to the airport and the
looming terrorist presence in Harrisburg, a jury could rely on of these temporal
elements as evidence that her components were for a destructive purpose.
iv.
The ease of assembly is evidence of Petitioner’s
liability under Section 5845(f)(3).
Finally, Petitioner could assemble the pipe bomb in a matter of minutes.
Petitioner possessed everything required to build a pipe bomb “in short order.”
United States v. Price, 877 F.2d 334, 336–37 (5th Cir. 1989). Thus, the Government
need not prove she necessarily knew how to make the destructive device. Id. Even
if the bomb was not readily convertible, Petitioner possessed the wherewithal to
either know it, or learn it within it minutes, and thus the device is still readily
assembled. See, e.g., United States v. Greer, 404 F.Supp. 1289 (W.D. Mich. 1975),
aff'd, 588 F.2d 1151 (6th Cir. 1976) (finding possession of a destructive device where
the explosive and detonator were present but not the intended source of power to
activate the device because the statute only requires “an association of the
30
components of a destructive device, capable of being converted into a destructive
device . . . not an actual union of parts in an assembled device.”)
b.
The gun plans are a destructive device.
The 3D gun plans along with Ms. Triton’s chemical formula, create an
explosive device that causes substantial bodily harm. R. at 18. The expert
testimony demonstrated the gun would explode when fired, thus coming within the
ambit of subsection (2) of Section 5845’s proscription of “any weapon . . . which may
be readily converted to, expel a projectile by the action of an explosive or other
propellant, the barrel or barrels of which have a bore of more than one-half inch in
diameter.” 6 At this stage in technology, it is common for a 3D printed gun to
explode. See http://www.forbes.com/sites/an dygreenberg/2013/11/14/3d- printedgun-stands-up-to-federal-agents-testfiring-except-when-it-explodes-video/) While
Petitioner did not carry these plans in on her person, she could obtain them easily.
First, Mr. Triton, uploaded gun plans on a golden USB and intended to gift the USB
to Petitioner and Ms. Triton as a “going away present.” R. at 13. In addition, Ms.
Triton, Petitioner’s soon-to-be roommate possessed the plastic filament formula in
her luggage on the way with Petitioner to Azran. R. at 12. See United States v.
Ragusa, 664 F.2d 696, 701 (8th Cir. 1981) (circumstantial evidence “could support a
finding of possession”). Thus, Petitioner had ready access to the plans. See, e.g.
United States v. Strache, 202 F.3d 980, 986 (7th Cir. 2000) (holding that while the
6 The record is silent as to how the FBI ballistics tested the gun and plastic filament
plans. See R. at 18.
31
destructive device was partially completed, it only needed gun powder and a fuse
both of which were plenty in defendant’s room).
Most importantly, Petitioner posted online that she wished “all guns would
blow up,” which a reasonable trier of fact could credit as a propensity for violence
and exploding guns. Lastly, while Respondent concedes the guns plans and the
plastic filament in itself are not capable to create a weapon, all Petitioner needed
was a 3D printer she was already familiar with and other easily bought materials.
See generally United States v. Melancon, 462 F.2d 82, 95 (5th Cir. 1972) (holding
that although defendant possessed a mortar, the fact it had no ammunition and
such ammunition was not readily available to him did not “render the weapon
nonexistent”).
Moreover, the fact that the device would self-explode and harm the user does
not exempt it from the statute, especially in the ever-growing threat of suicide
bombings. See http://www.haaretz.com/israel-news/.premium-1.635193 (number of
suicide bombs has increased 94%); See also United States v. Uzenski, 434 F.3d 690,
703 (4th Cir. 2006) (upholding conviction of possession of destructive device even
when expert’s conceded that the possessor could be injured while constructing the
device’s components) (emphasis added). Thus, while generally gun ownership is not
per se illegal, explosive devices, from whatever source, are clearly proscribed under
Section 5845. See also United States v. Graziano, 616 F. Supp. 2d 350, 359
(E.D.N.Y. 2008) aff'd, 391 F. App'x 965 (2d Cir. 2010 (“it is not critical that a bomb
contain explosives, but rather that it be capable of exploding”).
32
Today’s national security threat of modern terrorism is not fought with
readily observable military machinery. Rather, the advent of homegrown weapons
and new technology allows individuals to create concealable destructive devices that
are capable of substantial harm. Although impressionable youths are often targets
of terrorists to carry out their ends, this does not remove the devices they use from
the ambit of the NFA. To hold otherwise would hamper the Government’s ability to
be combat terrorism by allowing individuals to point to their naivety as an excuse
for possessing weapons that could cause substantial injury and death.
Accordingly, this Court should uphold the jury’s finding, and the Fourteenth
Circuit’s affirmation, because the evidence reasonably demonstrates that Petitioner
constituted a destructive device.
II.
PETITIONER CAN BE PROSECUTED UNDER 18 U.S.C. § 2339B
BECAUSE § 2339B WITHSTANDS CONSTITUTIONAL SCRUTINY AND
BECAUSE MAKING PLANS TO MEET A KNOWN FTO TO PROVIDE
COMPUTER CODE IS “MATERIAL SUPPORT” UNDER § 2339B.
Petitioner’s proper conviction sends the cautionary message Congress
intended to communicate by passing Section 2339B. Congress enacted the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) because
“international terrorism is among the most serious transnational threats faced by
the United States.” Antiterrorism and Effective Death Penalty Act of 1996, Sec. 324
Findings, Pub. L. No. 104–132, 110 Stat. 1214 (April 24, 1996). Under Section
2339B, an individual is prohibited from providing or attempting to provide material
support to an FTO when such individual knows the organization is a designated
foreign terrorist organization.
33
Notwithstanding her conviction, Petitioner petitions this Court to reexamine
the constitutionality of Section 2339B, both facially and as applied. Petitioner’s
First Amendment facial challenge fails because Section 2339B does not proscribe
her or others from advocating for, or associating with, FTOs. Additionally, if this
Court permits a Fifth Amendment challenge sua sponte,7 it should find that Section
2339B is not void for vagueness. Rather, the statute puts a person of ordinary
intelligence, and Petitioner, a person of exceptional intelligence, on sufficient notice
that her acts were prohibited. Petitioner’s as applied challenge also lacks merit.
This Court, less than six years ago, held Section 2339B constitutional as applied to
plaintiffs who sought to support FTOs using pure speech. See Holder v.
Humanitarian Law Project (“HLP”), 561 U.S. 1, 21 (2010). Given this holding,
Petitioner’s planned meeting with the founder of an FTO with the intent to provide
potentially dangerous code should similarly constitute material support. Lastly, the
Government presented sufficient evidence that a reasonable jury could find
Petitioner guilty under Section 2339B. Accordingly, this Court should uphold the
Fourteenth Circuit Court of Appeals.
7 Petitioner failed to raise this challenge on either appeal. See R. at 1, 21–24.
However, Courts have the “discretion to hear constitutional based arguments on
appeal.” Singleton v. Wulff, 428 U.S. 106, 121 (1976). Thus, for purposes of an
exhaustive analysis, the Government will engage in a Fifth Amendment discussion.
34
A.
18 U.S.C. § 2339B Is Constitutionally Valid on Its Face Because It
Does Not Chill Freedom of Speech or Association Under the First
Amendment Nor Does It Violate Due Process Under the Fifth
Amendment.
Petitioner alleges Section 2339B violates her freedom of speech and
association protected by the First Amendment. The First Amendment restricts
Congress from “abridging the freedom of speech.” U.S. Const. amend. I. However,
the Fourteenth Circuit properly adhered to this Court’s recent affirmation of
Section 2339B’s constitutionality. See HLP, 561 U.S. at 20. In HLP, this Court
concluded that Section 2339B was not unconstitutionally vague as applied to
conduct implicating pure speech because it still allowed plaintiffs to advocate for
and associate with FTOs. Id. Thus, Section 2339B does not chill Petitioner’s, or
others’, First Amendment rights. Furthermore, the statute does not implicate Fifth
Amendment due process concerns because it is narrowly tailored, puts defendants
on sufficient notice, and cannot be arbitrarily applied. Thus, these First and Fifth
Amendment challenges, facially and as applied, lack merit.
1.
Section 2339B survives Petitioner’s First Amendment facial
challenges because it is not unconstitutionally vague or
overbroad.
a.
Section 2339B’s precise language puts a reasonable
person on notice, and, therefore, does not abridge an
individual’s freedom of speech or association.
A law is unconstitutionally vague if a reasonable person cannot tell what
speech is prohibited and what is permitted. See Connally v. General Construction
Co., 269 U.S. 385, 391 (1926). This is so because of the concern that vague laws
restricting speech will chill constitutionally protected speech. See, e.g., NAACP v.
35
Button, 371 U.S. 415, 433 (1963) (Speech “delicate and vulnerable, as well as
supremely precious in our society . . . [and] the threat of sanctions may deter their
exercise almost as potently as the actual application of sanctions.”).
As an initial matter, Petitioner’s facial challenge to Section 2339B must fail
because “[a] plaintiff who engages in some conduct that is clearly proscribed cannot
complain of the vagueness of the law as applied to the conduct of others.” HLP, 561
U.S. at 18. Thus, because Petitioner engaged in clearly proscribed conduct by
attempting to bring potentially dangerous computer code to an FTO, her facial
challenge must fail. See infra part II.C. However, even if this Court finds that
Petitioner did not engage in clearly proscribed conduct, her facial challenge still
fails because Section 2339B’s precise language provides adequate notice as to what
speech is prohibited, and is, therefore, facially valid.
Petitioner’s First Amendment vagueness challenge cannot succeed under this
Court’s reasoning in HLP, 561 U.S. 1, 21 (2010). There, plaintiffs sought to provide
legal and peaceful advice to two FTOs. Id. at 18. Plaintiffs challenged
Section 2339’s validity, arguing that their lawful, peaceful advice could not
constitute “material support.” Specifically, plaintiffs alleged that the statute
violated the Fifth Amendment because it was too vague and the First Amendment
because it infringed their rights to freedom of speech and association. Id. at 8.
This Court rejected the vagueness challenge as applied to plaintiff’s proposed
action, stating that Section 2339 B “provide[s] a person of ordinary intelligence fair
notice of what is prohibited.” HLP, 561 U.S. 1, 18 (2010) (citing United States v.
36
Williams, 553 U.S. 285, 304 (2008). The HLP Court also held that the statute did
not violate the First Amendment’s protection of speech because “Congress has
prohibited ‘material support,’ which most often does not take the form of speech at
all.” Id. at 27. Finally, this Court recognized that plaintiffs were still free to
advocate for or speak on behalf of FTOs. Id. Accordingly, the statute was
constitutional.
Plaintiffs in HLP did not facially challenge Section 2339B on First
Amendment vagueness grounds. However, this Court’s Fifth Amendment analysis
necessarily included a review of the statute’s language. Id. This court looked at the
statute’s definitions, and concluded that Section 2339B’s “terms are clear in their
application.” Id. Indeed, Congress explicitly defined “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 [ . . . ] personnel . . .
18 U.S.C. § 2339A(b)(1) (2015). Congress took time to define terms within this
definition. For example, “training” “means instruction or teaching designed to
impart specific skill, as opposed to general knowledge.” 18 U.S.C. § 2339A(b)(2)
(2015). Therefore, Section 2339B, “by its own words,” distinguishes between “mere
advocacy and incitement to imminent lawless action.” HLP, 561 U.S. at 27.
Because Section 2339B specifies what kind of speech is prohibited as “material
support,” a reasonable person should understand what speech is and is not
prohibited based on the language of the statute. Cf. Brandenburg v. Ohio, 395 U.S.
444, 448 (1969) (statute proscribing individuals from advocating or teaching the
37
duty, necessity, or propriety of violence “as a means of accomplishing industrial or
political reform” was unconstitutionally vague).
b.
Section 2339B does not restrict significantly more speech
than the Constitution allows to be controlled, and,
therefore, is not overbroad.
Any claim that Section 2339B is substantially overbroad because it
unconstitutionally restricts freedom of association is similarly unsupported. A law
is overbroad if it regulates substantially more speech than the Constitution allows
to be regulated. See Broadrick v. Oklahoma, 413 U.S. 601, 615–16 (1973).
Under the First Amendment, “[t]he right of peaceable assembly is a right
cognate to those of free speech and free press and is equally fundamental.” De
Jonge v. State of Oregon, 299 U.S. 353, 364 (1937). Section 2339B does not restrict
this right. Rather, it merely prohibits conduct and speech that would materially
support an FTO. See, e.g., HLP, 561 U.S. at 25 (Section 2339B does not prohibit
independent advocacy or expression of any kind” and “plaintiffs may say anything
they wish on a topic.”); United States v. Taleb-Jedi, 566 F. Supp. 2d 157, 177
(E.D.N.Y. 2008) (holding that Section 2339B does not forbid mere membership and
association with a terrorist group and, therefore, defendant remained free to
sympathize with or advocate in favor of the terrorist organization). Thus, Section
2339B is facially valid because it does not unduly restrict Petitioner’s, or other’s,
freedom to associate with FTOs.
Furthermore, facially invalidating Section 2339B for overbreadth ignores this
Court’s precedent and the Government’s compelling interest in maintaining
38
national security. In the past, this Court has recognized that when a law will apply
to relatively few situations where speech is constitutionally protected, it should not
be overturned for overbreadth. See, e.g., New York v. Ferber, 458 U.S. 747 (1982)
(upholding a state law prohibiting child pornography although the statute could be
applied to material with serious literary, scientific, or education value). Moreover,
this Court has regarded the overbreadth doctrine as “strong medicine” because
facially invalidating a law permits individuals who otherwise could be
constitutionally punished to go free. Broadrick, 413 U.S. at 613. In this case,
invalidating Section 2339B would endanger the public because the Government
would have no way to lawfully detain terrorist supporters.
2.
Section 2339B does not violate the Fifth Amendment’s Due
Process Clause because it provides fair notice and is not
susceptible to arbitrary enforcement.
Any Fifth Amendment argument Petitioner could raise likewise fails. Under
the Fifth Amendment, “due process of law” must be part of any proceeding that
denies a citizen “life, liberty, or property.” See Const. Amend. V. Petitioner’s due
process rights were not violated simply because a jury convicted her for “making
plans” to supply computer code to an FTO. Rather, a statute violates the Fifth
Amendment’s due process clause if it criminalizes an individual without fair notice
or is susceptible to arbitrary enforcement. See, e.g., Scales v. United States, 367
U.S. 203, 220 (1961); HLP, 561 U.S. at 20. Section 2339B does neither.
39
a.
Section 2339B is not vague, and, therefore provides
defendants with fair notice.
This Court has already held that Section 2339B provides defendants with fair
notice. A statute will violate due process if it relies on “wholly subjective judgments
without statutory definitions, narrowing context, or settled legal meanings.” HLP,
561 U.S. at 20. (citations omitted). In HLP, this Court concluded that Section
2339B was not such a statute. Id. After considering the text and Congress’s
frequent amendment, this Court acknowledged that Section 2339B’s terms were
“quite different from the sorts of terms that we have previously declared to be
vague.” HLP, 561 U.S. at 20. Thus, Congress sufficiently specified the meaning of
“material support” to provide a person of ordinary intelligence fair notice that
planning to share valuable computer code with an FTO is a crime.
Moreover, Section 2339B requires that the defendant “knowingly” provide
material support. This knowledge requirement “further reduces any potential for
vagueness.” HLP, 561 U.S. at 17; see also Hill v. Colorado, 530 U.S. 703, 732 (2000)
(noting that statute’s “knowing requirement” protected speakers from inadvertently
violating the statute). Given this threshold requirement, the jury could not convict
Petitioner unless she knew she was dealing with an FTO. Thus, she was protected
from inadvertently violating Section 2339B.
b.
Section 2339B does not encourage arbitrary enforcement.
A criminal statute enacted for the purposes of national security is not
unconstitutional because it “could potentially be invoked to reach a large number of
offenders and leaves the decision about who to investigate and prosecute to law
40
enforcement and prosecutors.” United States v. Ahmed, 94 F. Supp. 3d 394, 410
(E.D.N.Y. 2015). In Ahmed, the court held that Section 2339B’s extraterritorial
provision did not violate due process even though it allowed for defendants to be
prosecuted in the United States for conduct committed abroad. Id. at 410. To
support this holding, the court deferred to Congress’s reasons for passing the
statute and cited the public policy interests of battling terrorism and fostering
international peace. Id.
The mere fact that a statute is designed to give law enforcement broad
discretion is not grounds for finding that it violates due process. Moreover, this
deference does not encourage the government to arbitrarily or discriminatorily
investigate and prosecute defendants. Petitioner’s conviction8 is illustrative.
Courts should analyze the complainant’s conduct in considering whether a law is
vague, and therefore susceptible to arbitrary enforcement. See Hoffman Estates,
Inc., 455 U.S. 489, 495 (1982).
Petitioner’s arrest was not arbitrary; it was based on probable cause. Officer
Smith, a fifteen-year veteran, arrested Petitioner only after he saw, in plain view,
that she had plans to meet Clive Allen the following day. R at 15. Officer Smith
recognized this threat because the FBI had recently sent the Harrisburg Police
Department a memo warning that the “wanted hacker and terrorist, Clive Allen,
was believed to have an associate operating in the Harrisburg area.” R. at 15. This
evidence supported Officer Smith’s probable cause to arrest Petitioner “on suspicion
8 Petitioner did not appeal her sentencing nor raise an Eighth Amendment
challenge.
41
of aiding and abetting a known fugitive.” R. at 15. Given these circumstances and
Officer’s Smith’s experience, it cannot be said that he arbitrarily arrested
Petitioner. Rather, her attempt to provide support to an FTO, and her allegiance to
protecting a person that the “FBI was nearly certain” to be the FTO’s counterpart
triggered her conviction. Accordingly, Section 2339B does not violate due process.
B.
Petitioner’s As Applied Challenge Fails Under Either Intermediate
Review or Strict Scrutiny Because the Government Has a Compelling
Interest in Preventing Terrorism and this Court Routinely Defers to
the Political Branches in Matters of National Security.
a.
Intermediate Scrutiny is the proper standard to apply
because Section 2339B criminalized Petitioner’s conduct,
not speech.
As a preliminary matter, Petitioner incorrectly argues that her as applied
challenge under Section 2339B should receive strict scrutiny analysis. Although
HLP held that Section 2339B “regulates speech on the basis of its content,” this
Court also noted that the statute “generally functions as a regulation of conduct.”
Therefore, even though this Court ruled that Section 2339B “regulate[d] plaintiffs’
speech to the [terrorist organizations] on the basis of its content” as it applied to the
plaintiffs conduct there, this Court did not impose a per se strict scrutiny standard
of review for all future challenges to the statute. Rather, this Court held that
because the plaintiffs conduct involved “communicating a message” a higher
standard must be applied.
Unlike the plaintiffs in HLP, Petitioner’s actions consisted of far more than a
mere desire to speak with an FTO. Petitioner wanted to give Clive Allen dangerous
code, which has significant value. Additionally, Petitioner did not simply want to
42
express her advocacy for Dixie Millions as the plaintiffs did in HLP, Petitioner
wanted to mentorship to advance her goals of becoming a hacker herself. Therefore,
Petitioner’s conduct did far more than attempt to “communicate a message” like
plaintiffs in HLP and her challenge to Section 2339B does not warrant applying the
same level of scrutiny.
Intermediate scrutiny ensures that a “content-neutral regulation will be
sustained under the First Amendment if it advances important governmental
interests unrelated to the suppression of free speech and does not burden
substantially more speech than necessary to further those interests.” Turner
Broadcasting System, Inc. v. FCC, 520 U.S. 180, 189 (1997). Given the
Government’s interests to keep sensitive data safe from sophisticated hackers and
to keep readily-manufactured gun designs out of terrorists’ file-sharing databases
are essential to maintain national security, the statute passes the intermediate
scrutiny test with ease.
b.
Even if this statute is a content-based regulation of
Petitioner’s speech, the statute is narrowly tailored to
further a compelling government interest.
Even if this Court chooses to read HLP as an outright rejection of applying
intermediate scrutiny to any case involving the application Section 2339B, the
statute is still constitutional under the first Amendment in its application against
Petitioner under a strict scrutiny standard. This is so because government’s
interest to prohibit aiding FTOs is compelling and Section 2339B has been narrowly
tailored. Indeed, even when Section 2339B reaches conduct that involves
43
expressing a desire to support an FTO, Congress has drawn a clear enough line to
establish what messages may be communicated to FTOs and what messages cannot.
HLP at 27. In HLP this Court further explained that if the speech to the FTO
“imparts a ‘specific skill’ or communicates advice derived from ‘specialized
knowledge’” then it is prohibited. HLP at 27. Therefore, this Court held that
Section 2339B was narrowly tailored because “Congress ha[d] avoided any
restriction on independent advocacy, or indeed any activities not directed to,
coordinated with, or controlled by foreign terrorist groups.” Id. at 38.
Further, this Court believed 2339B to be narrowly tailored because “Congress
has been conscious of its own responsibility to consider how its actions may
implicate constitutional concerns.” Id. at 36. Indeed, this Court was satisfied with
the care with which Congress crafted Section 2339B for three primary reasons.
First, this Court noted that the statute only applies to foreign terrorist
organizations and expressed its reservations as to whether such a ban would be
constitutional if it applied to domestic organizations. Id. at 36, 39. Second,
Congress added clarity to the statute by providing narrowing definitions of the
terms “training,” “personnel,” and “expert advice or assistance,” as well as an
explanation of the knowledge required to violate Section 2339B.” Id. Third,
Congress has also carefully balanced the interests of creating exceptions to the
support one may provide to an FTO. Id. at 37.
Although the Fourteenth Circuit was correct in identifying Petitioner as a
sympathetic defendant, the court below was perhaps even more correct in
44
identifying Petitioner as being the primary example of a hacker-terrorist
organization’s prime target for a new recruit. Petitioner may be an impressionable
youth, but she is also an extremely bright and talented youth. Congress foresaw
situations such as this when enacting Section 2339B and decided that the deterrent
value of prohibiting this conduct, and the resulting safety that society secures by
convicting those who engage in this conduct, justifies the statute’s enforcement. See
AEDPA, § 301(a)(7), 110 Stat. 1247, note following 18 U.S.C. § 2339B (Findings and
Purpose).
C.
Sufficient Evidence Supports Petitioner’s Conviction Under Section
2339B Because She Attempted to Provide Valuable Property, Expert
Advice, and Personnel to an Individual of a Known FTO.
Prosecution under Section 2339B requires three elements. First, an
individual must provide or attempt to provide “material support.” Material support
is any “valuable resource,” and need not be intended to further terrorist activities.
Second, an individual must take a substantial step towards providing the support.
Finally, an individual must know that her efforts support an FTO. Here, the
Government proved all three elements. Further, the jury found, beyond a
reasonable doubt, Petitioner guilty under Section 2339B. R. at 17.
The Central District of New Tejas jury properly convicted Petitioner of
violating Section 2339B because they believed, beyond a reasonable doubt, that she
attempted to provide material support to Clive Allen, the leader of the designated
FTO, Dixie Millions. This conviction was based on sufficient evidence. A review
under the sufficiency of the evidence to support a criminal conviction is not “simply
45
to determine whether the jury was properly instructed, but to determine whether
the record evidence could reasonably support a finding of guilt beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 318 (1979). Thus, to overturn her
conviction, Petitioner “must establish that after construing the evidence in the light
most favorable to the prosecution, there is an element of the crime of conviction that
no rational jury could have found beyond a reasonable doubt.” United States v. Al
Kassar, 660 F.3d 108, 128 (2d Cir. 2011) (applying the sufficiency of the evidence
standard to a defendant convicted under Section 2339B). Petitioner has not done
so.
The jury rested Petitioner’s conviction on sufficient evidence. Petitioner
planned to give the leader of Dixie Millions valuable resources. Specifically, she
took substantial steps to provide: a highly valuable and potentially dangerous
weapon, by showing him her computer code; expert advice, by demonstrating her
hacker skills; and personnel, by becoming the leader’s mentee. She attempted to do
all this knowing that Dixie Millions was an FTO.
Moreover, Petitioner’s conviction must stand despite her pleas that she
intended only to help Dixie Millions with its “White Hat”9 cyber-activities. R. at 11,
22. However this support is characterized, it is nevertheless prohibited by Section
2339 because it “frees up other resources within the organization that may be put to
violent ends.” HLP, 561 U.S. 1, 30 (2010). To hold otherwise, and allow value 9 “White Hat” hackers, as opposed to “Black Hat” hackers, believe that a good
hacker should never harm innocent individuals and should only hack systems to
expose “flaws and frauds.” R. at 8.
46
based judgments to enter the material support analysis would essentially remove
the teeth from Section 2339B.
1.
Petitioner’s acts leading up to her arrest constitute “material
support” as defined by Section 2339B.
Material support includes:
[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 . . .
18 U.S.C. § 2339A(b)(1) (2015). (emphasis added). The only items excluded from
this definition are religious materials and medicine. Id.
In HLP, 561 U.S. 1, 30 (2010), this Court held that support for terrorist
activities will not be tolerated, even if the support is solely intended to advance
peaceful or lawful ends. There, American plaintiffs sought to aid “humanitarian
and political activities” of two FTOs with “monetary contributions, other tangible
aid, legal training, and political advocacy.” Id. at 10. Plaintiffs argued that their
humanitarian aid furthered only the FTOs’ legitimate activities, not their terrorist
activities. Id. at 29. Therefore, they contended, their lawful, peaceful aid could not
constitute material support under Section 2339B. Id.
In concluding that plaintiffs provided material support, this Court refused to
examine the plaintiffs’ motives or carve out an exception for aid “furthering
legitimate activities.” Id. Instead, it looked to Congress’s intent when creating
AEDPA, noting that Congress “rejected the view that ostensibly peaceful aid would
47
have no harmful effects.” Id. This Court also considered the statute’s legislative
history, and acknowledged that Congress removed an exception for humanitarian
aid from an earlier version of the statute. Id. Thus, a broad reading of
“contribution” best incorporated Congress’s intent to bar any form of material
support furnished to a foreign terrorist organization. Id.
Petitioner’s material support, irrelevant of her intent, fits within Congress’s
intentionally broad definition of “material support.” The proper inquiry is whether
Petitioner’s acts and plans were “valuable resources.” See Holder v. Humanitarian
Law Project, 561 U.S. 1, 30 (2010). In this case, the jury found, beyond a reasonable
doubt, that they were. And the Government presented ample evidence to support
this conclusion.
a.
Petitioner’s code is highly valuable, and therefore,
constitutes material support.
First, Petitioner intended to give Mr. Allen highly valuable computer code.
R. at 12. Petitioner created this code in a concerted effort with an experienced
chemical engineer for a major weapons manufacturer and a veteran computer
programmer and speculated member of Dixie Millions. R. at 7, 10. Furthermore,
Mr. Triton undertook this endeavor because he “believed he would have an
extremely valuable product, one that might allow him to retire even sooner than he
hoped.” R. at 9.
In addition, this code is capable of and designed to produce 3D printed
“weapons or explosives.” R. at 12. Mr. Allen could use the code to mass replicate
primitive 3D printed pipe bombs, similar to the pipe bomb Petitioner possessed. R.
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at 16. Mr. Allen could, at the very least, sell the code and use the proceeds to
support Dixie Million’s cyber-terrorism. Thus, Petitioner’s code is highly valuable
for whatever uses Dixie Millions may have for it.
b.
Petitioner’s programming acumen and expertise
constitutes material support.
The lower court properly found that the code, in and of itself, is “material
support.” However, the record indicates other indicia of Petitioner’s intended
material support. Petitioner also attempted to provide material support in the form
of “training” and “expert advice or assistance.” She took ownership of creating the
“curve code” and could have taught Mr. Allen how to create similar 3D-code. R. at
9. Furthermore, Petitioner, unlike the FBI, was able to track down Mr. Allen’s
whereabouts using her “hacker skills.” R. at 11–12. Petitioner intended to impress
Mr. Allen by bringing her code and spreadsheet as evidence of her computer
programming knowledge. R. at 12. Her highly relevant programming expertise
enables her to train Dixie Millions in 3D printing technology and provide advice
about data mining.
Furthermore, Petitioner herself, by virtue of her desire to be mentored and
become a Dixie Millions hacker, is “personnel” under the statute. Under
Section 2339B(h), conspiring “to provide a foreign terrorist organization with 1 or
more individuals (who may be or include himself) to work under that terrorist
organization’s direction” is considered material support. Indeed, Petitioner was
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already under the direction of Mrs. Ascot, the likely “Dixie” of Dixie Millions.10 See
R. at 8–10. After learning about Dixie Millions from Mrs. Ascot, Petitioner’s hoped
to impress Mr. Allen, the founding member of Dixie Millions, so “that he would
agree to mentor her.” R. at 12. Under this mentorship, Mr. Allen could easily direct
Petitioner to use her programming skills to further Dixie Millions’ illicit activities.
Given the vast resources that M.s Borne could have provided value to Dixie
Millions, the jury properly concluded that Petitioner’s acts and plans were “material
support,” and the Fourteenth Circuit properly affirmed her conviction.
2.
Petitioner took a substantial step toward providing material
support to an FTO by researching Mr. Allen for a month,
preparing a spreadsheet to locate Mr. Allen, and planning to give
him her code.
Petitioner incorrectly argues that she cannot be prosecuted under Section
2339B because “she has not yet engaged in any criminal act on behalf of Dixie
Millions.” R. at 22. On the contrary, it does not matter whether Petitioner’s plans
came to fruition because Section 2239B criminalizes attempts to provide material
support. See 18 U.S.C. § 2239B (2015). Therefore, Petitioner need only take a
“substantial step” towards providing material support to be liable. She did so by
preparing a detailed spreadsheet of Clive Allen’s whereabouts, planning a specific
date and time to meet him, driving to the airport with the computer code, filament
formula, and gun designs.
10 For example, when Mrs. Ascot quit playing WOM on April 26, 2012, Petitioner
did too despite her long-time enthusiasm for the game. R. at 3, 8. Petitioner, at
Mrs. Ascot’s encouragement, intended to pursue “White Hat” hacking at Technical
Promises. R. at 11.
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A conviction for attempt only requires “that a defendant took at least one
substantial step toward the commission of the charged crime.” See United States v.
Mehanna, 735 F.3d 32, 53 (1st Cir. 2013) cert. denied, 135 S. Ct. 49 (2014). A
“substantial step” must be “something more than mere preparation, yet may be less
than the last act necessary before the actual commission of the substantive crime.”
United States v. Manley, 632 F.2d 978, 987 (2d Cir.1980).
In United States v. Mehanna, the First Circuit held that the jury properly
inferred that the twenty-one year old defendant took “a very substantial step”
toward providing material support when he flew to Yemen armed with only “the
name of a possible al-Qa’ida liaison.” Mehanna, 735 F.3d 32 at 53 (emphasis
added). Although there was no al-Qa’ida presence in Yemen at the time of
defendant’s trip, the court concluded that factual impossibility was not a defense.
Id. Therefore, defendant’s conduct, regardless of whether he could actually meet
with al-Qa’ida, still constituted a substantial step. Id.
So as here, the jury properly found that Petitioner’s attempt to travel to
Azran and bring the computer code, filament, and gun designs to Clive Allen
constituted a substantial step toward attempting to provide material support to
Dixie Millions. Unlike Mehanna, Petitioner knew with practical certainty and
specificity where Dixie Millions would be on June 5, 2012. R. at 12. She spent an
entire month researching Mr. Allen’s whereabouts on the Darknet. R. at 12. She
created a spreadsheet to track his patterns, and using this data, precisely
pinpointed where he would be. R. at 12. Moreover, she planned to meet him at a
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café near the University of Misthallery campus the very next day she arrived. R. at
12. During that meeting, she intended to give him valuable computer code and
other proof of her hacking credentials. R. at 12. Thus, the jury properly concluded
that Petitioner, much like Mehanna took “a very substantial step” to provide Dixie
Millions with material support.
3.
Petitioner knew Dixie Millions was an FTO.
Petitioner’s assertion that she did not possess the specific intent required to
violate Section 2339B ignores this Court’s precedent. Namely, Section 2339B
“conditions liability on a person having knowledge that the relevant organization is
a ‘designated terrorist organization’ or ‘has engaged or engages in terrorist
activity.’” United States v. Farhane, 634 F.3d 127, 135 (2d Cir. 2011), cert. denied
132 S.Ct. 833; see also HLP, 561 U.S. at 3 (holding that “knowledge about the
organization’s connection to terrorism, not specific intent to further the
organization’s terrorist activity,” is mental state required to prove violation of
Section 2339B) (emphasis added).
Here, the evidence was sufficient to support the jury’s finding, beyond a
reasonable doubt, that Petitioner knew Clive Allen was the founding member of
Dixie Millions, a designated terrorist organization. R. at 18. The United States
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Secretary of State declared Dixie Millions an FTO in 2011. 11 R. at 5. Mr. Allen,
who announced he was “Millions,” is necessarily included in this designation. R. at
5; See Mehanna, 735 F.3d at 42 (defendant knew he was acting with an FTO when
he attempted to meet a possible al-Qa’ida liaison). Neither party challenges the
validity of Dixie Million’s FTO designation.12 R. at 5, n.1. Additionally, the record
is silent as to Petitioner’s actual knowledge of this designation, but circumstantial
evidence supports the jury’s finding that Petitioner knew Dixie Millions was an
FTO. Namely, her desire to join Dixie Millions to be a hacker, her conversations
with Mrs. Ascot about Dixie Million’s cyber-terrorism, and her active research on
the Darknet supports the jury’s proper inference that she knew she dealing with an
FTO. R. at 8–12.
Given the Government’s overwhelming evidence supporting Petitioner’s
conviction and viewing it in the light most favorable to the Government, Petitioner’s
sufficiency of the evidence challenge must fail. An individual cannot invoke the
11 The record is silent as to how Dixie Million’s FTO status was publicized. R. at 5.
However, FTO designations are publicly available and frequently updated. See U.S.
Dept. of State, Foreign Terrorist Organizations
http://www.state.gov/j/ct/rls/other/des/123085.htm (last updated Sept. 3, 2015).
Indeed, 8 U.S.C. § 1189 (2015) mandates that the Secretary of the State publish
FTO designations in the Federal Register. Assuming Dixie Million’s FTO
designation was similarly published, this is sufficient evidence that Petitioner knew
she was interacting with a FTO. See Mehanna, 735 F.3d at 42 (defendant had
requisite knowledge based on Department of State’s public “Redesignation of
Foreign Terrorist Organizations” notice).
Petitioner nonetheless lacks standing to challenge the FTO designation for Dixie
Millions. See United States v. Warsame, 537 F. Supp. 2d 1005, 1022–23 (D. Minn.
2008). While the relevant fact of an organization’s FTO status Section 2339B is an
element the prosecution must prove, the validity of the designation is not. Id.
12
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protections of the Constitution when the conduct she wishes to engage in endangers
the very nation this Constitution was meant to protect.
CONCLUSION
For the foregoing reasons, this Court should AFFIRM the Fourteenth Circuit
and uphold the district court’s convictions.
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APPENDIX “A”
18 U.S.C. § 5845(f)(3) (2012)
The term “destructive device” means:
(1) any explosive, incendiary, or poison gas
(A) bomb,
(B) grenade,
(C) rocket having a propellent charge of more than four ounces,
(D) missile having an explosive or incendiary charge of more
than one-quarter ounce,
(E) mine, or
(F) similar device;
(2) any type of weapon by whatever name known which will, or which
may be readily converted to, expel a projectile by the action of an
explosive or other propellant, the barrel or barrels of which have a bore
of more than one-half inch in diameter, except a shotgun or shotgun
shell which the Secretary finds is generally recognized as particularly
suitable for sporting purposes; and
(3) any combination of parts either designed or intended for use in
converting any device into a destructive device as defined in
subparagraphs (1) and (2) and from which a destructive device may be
readily assembled. The term “destructive device” shall not include any
device which is neither designed nor redesigned for use as a weapon;
any device, although originally designed for use as a weapon, which is
redesigned for use as a signaling, pyrotechnic, line throwing, safety, or
similar device; surplus ordnance sold, loaned, or given by the Secretary
of the Army pursuant to the provisions of section 4684 (2), 4685,
or 4686 of title 10 of the United States Code; or any other device which
the Secretary finds is not likely to be used as a weapon, or is an
antique or is a rifle which the owner intends to use solely for sporting
purposes.
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APPENDIX “B”
Plastic pipe bomb
Source:
http://www.transit101.com/contents.asp?switch=contents&pageControlnumber=1104110000
3D printed cylinder Designs
Source:
http://blog.think3dprint3d.com/2013/10/OpenSCAD-Mendel90-FilamentHolder.html
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