NO. C15-1359-1
________________
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 2015
________________
EMMALINE BORNE,
Petitioner,
— against —
UNITED STATES OF AMERICA,
Respondent.
________________
On Writ of Certiorari to the
United States Court of Appeals
for the Fourteenth Circuit
________________
BRIEF FOR RESPONDENT
________________
TEAM 80
Attorneys for Respondent
QUESTIONS PRESENTED
I.
Whether and to what extent may a defendant‘s subjective intent be considered
to determine if firearm parts created on a 3D printer qualify as destructive
devices within the meaning of 26 U.S.C. § 5845(f)(3).
II. Whether 18 U.S.C. § 2339B prohibits attempts to provide a known foreign
terrorist organization with potentially dangerous computer code that could
print firearm components on a 3D printer, and, if so, whether the prohibition
comports with the requirements of the Due Process Clause and the First
Amendment.
i
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........................................................................................... i
TABLE OF AUTHORITIES .......................................................................................... v
OPINIONS BELOW ...................................................................................................... 1
STATEMENT OF JURISDICTION .............................................................................. 1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 1
STATEMENT OF THE CASE ....................................................................................... 1
SUMMARY OF THE ARGUMENT .............................................................................. 8
ARGUMENT AND AUTHORITIES ........................................................................... 11
I.
26 U.S.C. § 5845(f)(3) PROHIBITS MAKING AN EXPLOSIVE DEVICE BY
DESIGNING AND FABRICATING FIREARM PARTS ON A 3D PRINTER ................... 12
A. A Mixed Standard Properly Determines the Role of a
Defendant‘s Subjective Intent in Defining a Destructive Device
Within the Meaning of Section 5845(f)(3) ................................................ 12
1. Section 5845(f)(3)‘s plain language mandates a mixed
standard because it calls for objective analysis in some
circumstances and consideration of subjective intent in
others.................................................................................................... 14
2. A mixed standard comports with the specific context in which
the statutory language is used ............................................................ 15
3. The subjective standard and the objective standard lack
consistency and fairness ...................................................................... 16
B. Borne‘s Subjective Intent Was Irrelevant Under the Mixed
Standard .................................................................................................... 18
ii
1. Section 5845(f)(3) bars any consideration of Borne‘s
subjective intent because the disassembled primitive pipe
bomb—the components of which Borne had in her
possession—was designed as a weapon .............................................. 19
2. Section 5845(f)(3) bars any consideration of Borne‘s
subjective intent because the 3D gun—the plans for which
Borne had in her possession—was designed as a weapon ................. 21
C. If Borne‘s Subjective Intent Is Considered, the Items in Her
Possession When Printed and Assembled Would Still Be
Destructive Devices Because She Intended to Create Weapons
Regardless of How She Intended to Use Them ........................................ 23
II. 18 U.S.C. § 2339B PROHIBITS MAKING PLANS TO MEET AN
INDIVIDUAL OF A KNOWN FOREIGN TERRORIST ORGANIZATION TO
SHOW AND DEMONSTRATE POTENTIALLY DANGEROUS COMPUTER
CODE TO THAT INDIVIDUAL .............................................................................. 24
A. The Government Offered Sufficient Evidence for the Jury to
Conclude Borne Violated Section 2339B .................................................. 24
1. The government introduced evidence that Borne planned to
provide computer code to a known foreign terrorist
organization, which is material support within the meaning
of Section 2339B .................................................................................. 26
2. The government introduced evidence that Borne knew Dixie
Millions was a foreign organization engaged in terrorism ................ 27
3. The government introduced evidence that Borne had taken
substantial steps toward violating Section 2339B ............................. 28
B. Section 2339B Is Constitutional ............................................................... 30
1. Section 2339B is not void for vagueness ............................................. 30
2. Section 2339B does not unconstitutionally infringe upon
Borne‘s First Amendment free speech rights ..................................... 34
iii
a. Borne’s as-applied challenge fails because the First
Amendment does not bar Borne’s conviction for materially
supporting a foreign terrorist organization by sharing
computer files that function to automatically create
firearm components on a 3D printer .............................................. 36
i.
The First Amendment does not apply because
computer code as used by Borne in this circumstance
is not an item of expressive conduct ....................................... 36
ii. If speech rights are implicated by Borne‘s conduct, the
application of Section 2339B survives the O’Brien
intermediate-scrutiny standard .............................................. 40
iii. The application of Section 2339B to Borne‘s conduct
also survives the strict-scrutiny standard applied in
Humanitarian Law Project v. Holder ..................................... 44
b. Borne’s facial challenge fails because Section 2339B is not
substantially overbroad .................................................................. 45
i.
A facial challenge is improper because Section 2339B
constitutionally applies to Borne‘s specific conduct ............... 46
ii. Alternatively, Section 2339B is not unconstitutionally
overbroad ................................................................................. 46
3. Section 2339B does not unconstitutionally infringe upon
Borne‘s First Amendment free association rights .............................. 48
CONCLUSION............................................................................................................. 49
APPENDICES:
APPENDIX ―A‖:
CONSTITUTIONAL PROVISIONS ........................................... A-1
APPENDIX ―B‖:
STATUTORY PROVISIONS .................................................... B-1
iv
TABLE OF AUTHORITIES
Page(s)
UNITED STATES SUPREME COURT CASES:
Aptheker v. Sec’y of State,
378 U.S. 500 (1964) ........................................................................................... 42
Boyce Motor Lines v. United States,
342 U.S. 337 (1952) ........................................................................................... 33
Brandenburg v. Ohio,
395 U.S. 444 (1969) ........................................................................................... 47
Broadrick v. Oklahoma,
413 U.S. 601 (1973) ........................................................................................... 45
Brockett v. Spokane Arcades,
472 U.S. 491 (1985) ........................................................................................... 46
Brown v. Hartlage,
456 U.S. 45 (1982) ............................................................................................. 48
Chapman v. United States,
500 U.S. 453 (1991) ........................................................................................... 31
Coates v. Cincinnati,
402 U.S. 611 (1971) ........................................................................................... 31
Davis v. Mich. Dep’t of Treasury,
489 U.S. 803 (1989) ........................................................................................... 15
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) ........................................................................................... 15
Giboney v. Empire Storage & Ice Co.,
336 U.S. 490 (1949) ........................................................................................... 36
Haig v. Agee,
453 U.S. 280 (1981) ..................................................................................... 42, 44
Humanitarian Law Project v. Holder,
561 U.S. 1 (2010) ........................................................................................passim
v
In re Chapman,
166 U.S. 661 (1897) ........................................................................................... 17
Jackson v. Virginia,
443 U.S. 307 (1979) ..................................................................................... 11, 25
Kleindienst v. Mandel,
408 U.S. 753 (1972) ........................................................................................... 48
Kolender v. Lawson,
461 U.S. 352 (1983) ..................................................................................... 33, 34
Liparota v. United States,
471 U.S. 419 (1985) ..................................................................................... 16, 28
Morissette v. United States,
342 U.S. 246 (1952) ........................................................................................... 28
New York v. Ferber,
458 U.S. 747 (1982) ........................................................................................... 46
N.Y. State Club Ass’n v. City of New York,
487 U.S. 1 (1987) ............................................................................................... 45
N.Y. Times v. Sullivan,
376 U.S. 254 (1964) ........................................................................................... 36
Regan v. Wald,
468 U.S. 222 (1984) ..................................................................................... 41, 42
Robinson v. Shell Oil Co.,
519 U.S. 337 (1997) ........................................................................................... 14
Rumsfeld v. Forum for Academic & Institutional
Rights, Inc.,
547 U.S. 47 (2006) ............................................................................................. 37
Spence v. Washington,
418 U.S. 405 (1974) ........................................................................................... 40
Texas v. Johnson,
491 U.S. 397 (1989) ........................................................................................... 40
vi
United States v. Balint,
258 U.S. 250 (1922) ........................................................................................... 16
United States v. Freed,
401 U.S. 601 (1971) ........................................................................................... 15
United States v. Goldenberg,
168 U.S. 95 (1897) ....................................................................................... 14, 15
United States v. O’Brien,
391 U.S. 367 (1968) ........................................................................................... 41
United States v. Ron Pair Enters., Inc.,
489 U.S. 235 (1989) ........................................................................................... 14
United States v. Williams,
553 U.S. 285 (2008) ..................................................................................... 30, 31
Ward v. Rock Against Racism,
491 U.S. 781 (1989) ........................................................................................... 31
Warth v. Seldin,
422 U.S. 490 (1975) ........................................................................................... 45
Wash. State Grange v. Wash. State Republican
Party,
552 U.S. 442 (2008) ........................................................................................... 35
Wright v. New Jersey,
469 U.S. 1146 (1985) ......................................................................................... 33
Wright v. West,
505 U.S. 277 (1992) ........................................................................................... 25
Zemel v. Rust,
381 U.S. 1 (1965) ......................................................................................... 35, 41
vii
FEDERAL CIRCUIT COURT CASES:
Ay v. Holder,
743 F.3d 317 (2d Cir. 2014) .............................................................................. 26
Barahona v. Holder,
691 F.3d 349 (4th Cir. 2012) ............................................................................. 26
Bernstein v. U.S. Dep’t of Justice,
176 F.3d 1132 (9th Cir.), reh’g granted
en banc and opinion withdrawn,
192 F.3d 1308 (9th Cir. 1999) ........................................................................... 39
Boim v. Quranic Literacy Inst.,
291 F.3d 1000 (7th Cir. 2002) ........................................................................... 42
Commodity Futures Trading Comm’n v. Vartuli,
228 F.3d 94 (2d Cir. 2000) .......................................................................... 37, 38
Holy Land Found. for Relief & Dev. v. Ashcroft,
333 F.3d 156 (D.C. Cir. 2003) ........................................................................... 48
Lexmark Int’l, Inc. v. Static Control
Components, Inc.,
387 F.3d 522 (6th Cir. 2004) ............................................................................. 37
United States v. Buchanan,
787 F.2d 477 (10th Cir. 1986) ........................................................................... 20
United States v. Campbell,
685 F.2d 131 (5th Cir. 1982) ............................................................................. 20
United States v. Farhane,
634 F.3d 127 (2d Cir. 2011) .............................................................................. 29
United States v. Hamrick,
43 F.3d 877 (4th Cir. 1995) ............................................................................... 21
United States v. Hernandez-Galvan,
632 F.3d 192 (5th Cir. 2011) ............................................................................. 29
United States v. Ivic,
700 F.2d 51 (2d Cir. 1983) ................................................................................ 29
viii
United States v. Johnson,
952 F.2d 565 (1st Cir. 1991) ............................................................................. 31
United States v. Johnson,
152 F.3d 618 (7th Cir. 1998) ......................................................................passim
United States v. LaCock,
366 F.3d 883 (10th Cir. 2004) ........................................................................... 21
United States v. Langan,
263 F.3d 613 (6th Cir. 2001) ............................................................................. 22
United States v. Lussier,
128 F.3d 1312 (9th Cir. 1997) ........................................................................... 19
United States v. Mehanna,
735 F.3d 52 (1st Cir. 2013) ............................................................................... 29
United States v. Oba,
448 F.2d 892 (9th Cir. 1971) ....................................................................... 13, 17
United States v. Posnjak,
457 F.2d 1110 (2d Cir. 1972) ...................................................................... 13, 19
United States v. Ragusa,
664 F.2d 696 (8th Cir. 1981) ............................................................................. 20
United States v. Ruiz,
73 F.3d 949 (9th Cir. 1996) ............................................................................... 16
United States v. Rushcamp,
526 F.2d 1380 (6th Cir. 1975) ........................................................................... 22
Universal City Studios, Inc. v. Corley,
273 F.3d 429 (2d Cir. 2001) ........................................................................ 38, 39
Viegas v. Holder,
699 F.3d 798 (4th Cir. 2012) ............................................................................. 20
ix
FEDERAL DISTRICT COURT CASES:
Def. Distributed v. U.S. Dep’t of State,
No. 1-15-CV-372-RP, 2015 WL 4658921
(W.D. Tex. Aug. 4, 2015) ................................................................................... 39
Karn v. U.S. Dep’t of State,
925 F. Supp. 1 (D.D.C. 1996) ............................................................................ 40
United States v. Assi,
414 F. Supp. 2d 707 (E.D. Mich. 2006)............................................................. 34
United States v. Fine,
413 F. Supp. 728 (W.D. Wis. 1976) ................................................................... 19
United States v. Greer,
404 F. Supp. 1289 (W.D. Mich. 1975) ............................................................... 18
United States v. Hashmi,
No. 06-Crim-442(LAP), 2009 WL 4042841
(S.D.N.Y. Nov. 18, 2009) ................................................................................... 47
United States v. Lindh,
212 F. Supp. 2d 541 (E.D. Va. 2002) ................................................................ 48
United States v. Sattar,
395 F. Supp. 2d 79 (S.D.N.Y. 2005) .................................................................. 47
United States v. Shah,
474 F. Supp. 2d 492 (S.D.N.Y. 2007) ................................................................ 34
United States v. Taleb-Jedi,
566 F. Supp. 2d 157 (E.D.N.Y. 2008) ............................................................... 34
CONSTITUTIONAL PROVISIONS:
U.S. Const. amend. I ...................................................................................................... 1
U.S. Const. amend. V ..................................................................................................... 1
U.S. Const. art. I, § 8 ................................................................................................... 41
x
U.S. Const. art. I, § 10 ................................................................................................. 41
U.S. Const. art. II, § 2, cl. 2 ......................................................................................... 42
STATUTES:
7 U.S.C. § 6m(1) (1996) ................................................................................................ 38
8 U.S.C. § 1189(a)(1) (2012) ......................................................................................... 32
17 U.S.C. §§ 1201(a)(2), (b)(1) (2012) .......................................................................... 39
18 U.S.C. § 2339B (2012) ......................................................................................passim
26 U.S.C. § 5845 (2012) ........................................................................................passim
28 U.S.C. § 1254(1) (2012) ............................................................................................. 1
Antiterrorism and Effective Death Penalty Act
of 1996,
§ 301(a)(7), 110 Stat. 1247,
note following 18 U.S.C. § 2339B ..................................................................... 43
Pub. L. No. 104-132, § 301(a)(7) (1968)........................................................... 24, 28, 42
LEGISLATIVE MATERIALS:
H.R. Rep. No. 104-383 (1995) ...................................................................................... 43
xi
OTHER AUTHORITY:
Andrea M. Matwyshyn,
Hacking Speech: Informational Speech and
the First Amendment,
107 Nw. U. L. Rev. 795 (2013) .......................................................................... 23
Model Penal Code § 5.01(c)
(Proposed Official Draft 1962) .......................................................................... 29
Lucas S. Osborn,
Regulating Three-Dimensional Printing: The
Converging Worlds of Bits and Atoms,
51 San Diego L. Rev. 553 (2014) ....................................................................... 23
Cason Schmit,
Intellectual Property’s Upcoming Quantum
Leap: Projecting the Future Challenges
Facing Quantum Information Technology
Through A Historical Perspective of the
Computer Revolution,
95 J. Pat. & Trademark Off. Soc‘y 271 (2013) ................................................. 37
Amanda Shanor,
Beyond Humanitarian Law Project:
Promoting Human Rights in a Post-9/11
World,
34 Suffolk Transnat‘l L. Rev. 519 (2011) ......................................................... 44
xii
OPINIONS BELOW
The opinion of the United States District Court for the Central District of New
Tejas is unreported. The unreported opinion of the United States Court of Appeals
for the Fourteenth Circuit appears in the record at pages 2–27.
STATEMENT OF JURISDICTION
The court of appeals entered its judgment on October 1, 2015. R. at 2. The
petition for a writ of certiorari was granted. R. at 1. This Court has jurisdiction
based on 28 U.S.C. § 1254(1) (2012).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
This case involves the United States Constitution‘s First Amendment and the
Fifth Amendment‘s Due Process Clause. U.S. Const. amend. I, V. Both
constitutional provisions are included as Appendix A.
This case also involves the interpretation of two federal statutes: Section 5845
of the National Firearms Act, and Section 2339B of the Antiterrorism and Effective
Death Penalty Act. Both statutory provisions are included as Appendix B.
STATEMENT OF THE CASE
I.
STATEMENT OF FACTS
The Government prosecuted Petitioner Emmaline Borne under two federal
criminal statutes. Specifically, she was charged and convicted of possessing a
destructive device under 26 U.S.C. § 5845(f)(3) (2012) and providing material
support and resources under 18 U.S.C. § 2339B (2012). Borne was on her way to the
1
airport to transport the following items to a known foreign terrorist organization:
(1) plans for a 3D-printed bomb, (2) items to make a primitive bomb using 3Dprinted parts, (3) a valuable computer code to enable the foreign terrorist group to
profit financially. R. at 16–17. She was arrested before she could do so. R. at 17.
The Foreign Terrorist Organization. Borne was taking the items to Clive
Allen, who was part of the notorious hacktivist duo, ―Dixie Millions,‖ an
organization designed by the Secretary of State as a known foreign terrorist
organization.1 R. at 5. Dixie Millions was reportedly responsible for numerous hacks
or hack attempts on: the United States Military Network, Central Intelligence
Agency, Federal Bureau of Investigation, International Monetary Fund, Interpol,
Google, foreign banks, and other government and business interests around the
globe. R. at 5.
Allen worked as a consultant for the National Security Agency (―NSA‖). R. at 5.
He was also the ―Millions‖ of Dixie Millions. R. at 5. On November 22, 2011, Allen
revealed his identity as Millions when he released millions of documents that he
illegally stole from the NSA onto the Internet. R. at 5. Soon after this release, Allen
dropped off the grid and resurfaced in the country of Azran. R. at 5. Despite the
United States Government‘s attempts to arrest and extradite him, the Azranian
government granted him asylum after he turned over documents revealing the NSA
had previously spied on the Azranian government. R. at 6.
1
That designation has not been challenged. R. at 5.
2
Meanwhile, Dixie continued to hack numerous websites, with each hack
followed by a ―scandalous document dump.‖ R. at 5–6. Dixie forced the hacked
websites to display the following message: ―Dixie will make sure that millions follow
Millions. We watch the Watchmen. –Love, Dixie Millions.‖ R. at 5–6. The United
States authorities continued to search for Dixie to put pressure on Allen to return to
the United States. R. at 6.
The Arrests. In late May of 2011, the FBI sent a memo to the Harrisburg
Police Department in the state of New Tejas alerting law enforcement agencies that
wanted terrorist and hacker, Clive Allen, had an associate operating in the area. R.
at 15. About a week later, Officer Smith—a fifteen-year veteran of the Harrisburg
Police Force—pulled over a car for running a stop sign in Harrisburg. R. at 13–14.
Three people were inside the car: the driver, Hershel Triton,2 his daughter, Fiona
Triton, and Fiona‘s future college roommate Emmaline Borne. R. at 13.
Herschel told Officer Smith that he was taking the girls to the airport for an
advanced study abroad program in Azran. R. at 14. A routine check revealed an
outstanding warrant for Herschel‘s arrest. R. at 14. So Officer Smith took him into
custody. R. at 14.
Officer Smith allowed Herschel to call his wife to make sure the girls made
their flight to Azran. R. at 15. While standing near the car, Officer Smith heard
Borne‘s cell phone chime. R. at 15. Borne pulled out her cell phone, and Officer
Smith saw the phone‘s screen flash a calendar reminder: ―Meet Clive Allen at Cafe.‖
To avoid confusion, this brief will refer to Herschel Triton as ―Herschel‖ and Fiona
Triton as ―Fiona.‖ The remaining parties will be referred to by their last names.
2
3
R. at 15. He recalled the FBI‘s recent memo and was startled. R. at 15. Afterwards,
Officer Smith arrested both Fiona and Borne on suspicion of aiding and abetting a
known fugitive. R. at 15.
The Destructive Devices. The Harrisburg police obtained a warrant to search
Hershel‘s car and found the necessary parts to make two bombs. R. at 16, 20–21.
First, the police found two USB drives: one containing plans for a 3D-printed gun,
the other containing a plastic filament formula. R. at 16. Combining the two would
create a 3D-printed device that blows up when fired, causing significant bodily
harm or death to the device‘s user and anyone within close proximity. R. at 18.
Second, the police found a 3D-printed cylinder, hairspray, matches, and other items
that would create a bomb when combined. R. at 16, 18.
The Harrisburg police also found another USB drive inside the car. R. at 16.
This USB drive held a code to print the perfect cylinder, a spreadsheet tracking
Allen, and a computer generated picture of him. R. at 16, 22. The Harrisburg police
immediately called in the FBI. R. at 16.
The Federal Investigation. The FBI began by investigating all people who
came into contact with Fiona and Borne in the past year. R. at 16. The FBI focused
in on Adalida Ascot, who was the girls‘ mentor and physics teacher. R. at 2, 16.
After hearing about the girl‘s arrest, Ascot ―hurriedly quit her job‖ at Harrisburg
High School. R. at 16. As the investigation continued, the FBI believed that Ascot
was the hacker ―Dixie‖ of Dixie Millions.‖ R. at 17.
4
During the previous nine months prior to Fiona and Borne‘s arrest, Ascot
became a mentor and role model in their lives. R. at 4. Ascot successfully
encouraged both Fiona and Borne to attend a study abroad program named
Technical Promise at the University of Misthallery in Azran. R. at 2. Ascot was one
of the original students selected to participate in the program ten years ago. R. at 3.
During the time frame when Ascot attended, Allen also went the University of
Misthallery. R. at 6.
Ascot and Borne grew particularly close. Both played the same popular online
computer game and joined the same guild within the game. R. at 3. Borne was also
interested in learning computer programming so Ascot began tutoring her one-onone. R. at 3–4. During these tutoring sessions, Ascot and Borne would often discuss
computer games, internet culture, and future career opportunities for Borne. R. at
4.
The 3D-Printer Code. Two months before the arrests, Hershel bought a 3Dprinting kit and planned to perfect new plastic filament formulas to sell online. R.
at 6–7. Shortly after his purchase, Borne spent the night at the Triton‘s and saw
Hershel struggling with software issues with his printer. R. at 7. Borne offered to
help Hershel solve some of his software issues. R. at 7. Hershel agreed to the free
help. R. at 7.
Borne discovered that the printer code contained an error that altered the
positioning of the 3D-printer by less than half a centimeter. R. at 7. This error
5
caused the 3D-printer to print imperfect curves. R. at 7. So Borne began working on
perfecting the code. R. at 7.
Without telling Hershel, Borne sought help from Ascot to perfect the code. R. at
7. As both worked on the coding, they discussed Dixie Millions. R. at 7–8. Ascot told
Borne that she admired Allen and that Dixie must be extremely clever to avoid
capture for so long. R. at 8. Ascot also lectured Borne that ―a good hacker should
never harm innocent individuals and should only hack systems to expose ‗flaws and
frauds.‘‖ R. at 8. Ascot finally suggested that she take the code home to work on it
further. R. at 8.
Ascot took the code home, perfected it, and gave it back to Borne a few days
later. R. at 8. Borne brought the perfected code back to Hershel. R. at 8–9. The new
code allowed Hershel to print flawless models with his plastic filaments. R. at 9.
Two days later, Hershel downloaded plans to print a handgun because he believed
that he could develop a plastic filament to withstand the heat from discharging
multiple bullets. R. at 9.
Borne visited the Tritons once more to experiment with the 3D printer‘s
capabilities two days later. R. at 10. Borne suggested printing a perfect cylinder to
demonstrate how well the new software functioned. R. at 10. Hershel then printed
the perfect cylinder and gave it to Borne to keep. R. at 10.
Throughout May and immediately before her arrest, Borne researched Allen,
viewing him as an excellent role model. R. at 11. Borne believed that Ascot would be
proud of her for choosing to model herself after Allen, a person she believed Ascot
6
also admired. R. at 11. Borne began to track Allen‘s activities in Azran and intended
to meet with him while there. R. at 11.
II.
NATURE OF THE PROCEEDINGS
The District Court. After the arrests, the U.S. Attorney filed charges against
Hershel, Fiona, and Borne. R. at 16. Hershel and Fiona agreed to plea bargains
with the U.S. Attorney in exchange for full cooperation with any and all
investigations into Ascot, Allen, or anything involving Dixie Millions. R. at 16.
Borne, however, refused to cooperate and her case proceeded to trial. R. at 17.
At trial, the prosecution offered testimony from FBI agents that monitored
Borne‘s activities on the Internet. R. at 17. The agents testified that Borne was
interested in meeting members of Dixie Millions. R. at 17. The FBI also believed
that Ascot‘s teaching record showed a pattern of her students being mistakenly
arrested as hackers or suspected hackers. R. at 17.
Borne admitted that she thought it would be ―pretty cool‖ if Ascot was Dixie. R.
at 17. The prosecution also submitted evidence of Borne‘s ―tweets‖ from her Twitter
account stating: ―With one wish, I wish all guns would blow up.#guncontrol.‖ R. at
18. Borne would also re-tweet pro-Dixie Millions articles. R. at 18.
Borne was convicted under 26 U.S.C. § 5845(f)(3) and sentenced to twelve
months in prison. R. at 18. She was also convicted under 18 U.S.C. § 2339B and
sentenced to fifteen years in prison. Her sentences were to be served concurrently.
R. at 18.
7
The Court of Appeals. Borne appealed her convictions under both statutes. R.
at 18, 21. The United States Court of Appeals for the Fourteenth Circuit upheld
both of Borne‘s convictions. R. at 21, 24.
SUMMARY OF THE ARGUMENT
This case involves the Government‘s efforts to fight terrorism and the
increased risk posed by modern technological advances. The court of appeals
properly interpreted two federal criminal statutes that protect against significant
threats posed domestically and abroad.
I.
The first issue addresses an issue of statutory interpretation and considers the
role a defendant‘s subjective intent plays in determining whether an item is a
―destructive device‖ within the meaning of 26 U.S.C. § 5845(f)(3) of the National
Firearms Act. The court of appeals properly applied the ―mixed standard‖ adopted
by the United States Court of Appeals for the Seventh Circuit in United States v.
Johnson. The mixed standard has an objective threshold that considers if the item
was designed as a destructive device. If it was, a defendant‘s subjective intent
cannot make possession of the item legal. But if an objective analysis is inconclusive
because the item may be used in different ways, then the defendant‘s subjective
intent is taken into account to determine if the item was intended to be a
destructive device. The mixed standard follows Section 5845(f)(3)‘s plain language
and structure. It also incorporates the most beneficial aspects of a purely objective
approach and of a purely subjective approach.
8
The court of appeals properly refused to consider Borne‘s subjective intent. The
issue was resolved under the mixed standard‘s objective threshold. Upon her arrest,
Borne had the parts to create two different destructive devices as defined in
5845(f)(3). She had a USB drive with plans for a 3D printed gun and a plastic
filament formula that, when combined using a 3D printer, would create the
components for a firearm that explodes when the user pulls the trigger. She also
had hairspray, matches, a 3D printed cylinder, and other miscellaneous items, that
collectively would create a primitive pipe bomb. Section 5845(f)(3) bars any
consideration of Borne‘s subjective intent because the disassembled primitive pipe
bomb and the 3D gun were designed as weapons. It does not matter under the
statutory provision how Borne wanted to use them.
Even if her subjective intent should have been taken into account, the court of
appeals nonetheless reached the proper conclusion. Borne subjectively intended to
create weapon components and use them for a different purpose. The focus is on the
device itself, not on how Borne intends to use it. She still possesses destructive
devices.
This Court should affirm Borne‘s conviction under Section 5845(f)(3).
II.
The second issue addresses challenges to the prohibition of material support
for known foreign terrorist organizations found in 18 U.S.C. § 2339B. Borne was
convicted of making plans to meet an individual of a known terrorist organization to
show and demonstrate computer code to him.
9
The Government offered sufficient evidence to satisfy the statutory elements.
Providing computer code to a known foreign terrorist organization is material
support within the meaning of Section 2339B. By taking substantial steps to
provide the means of automatically creating an undetectable firearm with a 3D
printer, Borne engaged in activities designed to further the goals of a foreign
terrorist organization. The Government met its burden of showing that she knew
that Dixie Millions engaged in terrorist activities—a conclusion she did not
challenge. Her claim that the Government should have been required to prove her
intent to further the terrorist organization‘s goals is not one of the statutory
requirements for a conviction under Section 2339B.
The conviction is not unconstitutionally vague. Borne was making plans to
print an undetectable 3D gun to someone she knew was part of a known terrorist
organization. Examining Section 2339B in the light of her conduct, no person of
ordinary intelligence would have any difficulty in understanding that what she did
was illegal.
The conviction does not unconstitutionally infringe on Borne‘s speech rights.
The computer code, which forms the basis for her free-speech claim, is not
expressive so as to invoke First Amendment protections. It is merely the means for
one computer to talk to another. Even if analyzed under the First Amendment,
Section 2339B does not unconstitutionally restrict Borne‘s speech, as it is concerned
with material support for foreign terrorists, not speech about terrorists. Thus, the
prohibition on material support passes constitutional muster under the appropriate
10
as-applied analysis or even if Borne is permitted to raise issues facing others. No
interest is more compelling than the Government‘s war on terrorism. And in this
regard, this Court has already recognized in Humanitarian Law Project v. Holder
that deference must be given to the Government‘s predictive assessments about how
to best fight that war.
The conviction does not unconstitutionally infringe on Borne‘s associational
rights. Section 2339B does not criminalize association. It makes materially
supporting a terrorist organization a crime. And no one has the constitutional right
to support terrorists.
This Court should affirm Borne‘s conviction under Section 2339B.
ARGUMENT AND AUTHORITIES
Borne‘s challenge to Section 5845(f)(3) involves a legal question, which is
reviewed de novo. United States v. Johnson, 152 F.3d 618, 627 (7th Cir. 1998). Her
challenges to the conviction under Section 2339B are reviewed under two separate
standards. The sufficiency-of-the-evidence challenge is reviewed by viewing the
evidence in a light most favorable to the conviction to determine if any rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The remaining constitutional
challenges involve legal questions, which are reviewed de novo. Humanitarian Law
Project v. Holder, 561 U.S. 1, 19 (2010).
11
I.
26 U.S.C. § 5845(f)(3) PROHIBITS MAKING AN EXPLOSIVE DEVICE
DESIGNING AND FABRICATING FIREARM PARTS ON A 3D PRINTER.
BY
We live in a world where threats come in various shapes and forms. Lately,
some of the most significant result from our increased dependence on modern
technological advances, which have made us more productive but also more
vulnerable to attack. Although many of the risks posed by emerging technology are
somewhat new, the prohibitions involved in this case are not. Borne has simply
found a new way to do something that Congress criminalized almost 50 years ago.
A. A Mixed Standard Properly Determines the Role of a
Defendant’s Subjective Intent in Defining a Destructive
Device Within the Meaning of Section 5845(f)(3).
Borne contends her conviction was improper because she was convicted under
the wrong standard. R. at 18. Specifically, she believes that her subjective intent
should have been outcome determinative. In her view, innocent motives immunized
her from any liability for possessing a destructive device under 26 U.S.C.
§ 5845(f)(3). R. at 18. That is an incorrect reading of the law.
This issue concerns the proper interpretation of a provision of the National
Firearms Act, which includes in the definition of the ―term ‗destructive device‘ [as]
. . . (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.‖ 26 U.S.C. § 5845(f)(3).
Courts have disagreed on the relevance of subjective-intent evidence under this
provision. Much of the debate focuses on the statute‘s use of the word ―intended‖
12
and whether a defendant‘s subjective intent may inform the final determination as
to whether a device is ―destructive‖ within the meaning of Section 5845(f)(3).
In United States v. Oba, the United States Court of Appeals for the Ninth
Circuit interpreted Section 5845(f)(3) and gave controlling weight to a defendant‘s
subjective intent, stating that ―a device may be ‗converted‘ into a destructive device
as defined in subparagraphs (1) and (2) by way of ‗design or intent.‘‖ 448 F.2d 892,
894 (9th Cir. 1971) (citation omitted). Under this subjective standard, a defendant‘s
intent to use that item for a destructive purpose could make it a destructive device
within the meaning of the statute even if that item would not qualify objectively as
a destructive device. Id. (affirming conviction for possession of ―destructive device‖
based on evidence that defendant intended to ―dynamite the city of Eugene, Oregon
. . . to bomb and destroy the property of others‖).
A year later, the United States Court of Appeals for the Second Circuit stated
in United States v. Posnjak that a defendant‘s subjective intent could not bring an
item within the scope of Section 5845(f)(3). 457 F.2d 1110, 1120 (2d Cir. 1972). A
device‘s objective nature, and not the user‘s intention, determines whether or not
the statute proscribes it. Id. at 1119 (reversing conviction for possession of
destructive device based on possession of commercial dynamite despite defendant‘s
intent to ―blow up buildings and people‖).
Finally in 1998, the United States Court of Appeals for the Seventh Circuit
held in United States v. Johnson that a mixed standard was proper. 152 F.3d at
13
627. According to the court, the analysis whether a certain apparatus is a
―destructive device‖ must look first at the objective design of the device:
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. However, if the objective design inquiry is not dispositive
because the assembled device or unassembled parts may form an object
with both a legitimate and an illegitimate use, then subjective intent is an
appropriate consideration in determining whether the device or parts at
issue constitute a destructive device.
Id. at 628 (refusing to consider defendant‘s subjective intent to create a dangerous
situation with a pipe bomb so he could save co-workers and ―be a hero‖).
The court of appeals followed the United States Court of Appeals for the
Seventh Circuit and applied the mixed standard to bar consideration of Borne‘s
subjective intent in determining if the pipe bomb and computer code were
destructive devices within the meaning of Section 5845(f)(3). R. at 25 (citing
Johnson, 152 F.3d at 627). This Court should follow that approach because it
follows Section 5845(f)(3)‘s language and purpose.
1. Section 5845(f)(3)’s plain language mandates a mixed
standard because it calls for objective analysis in some
circumstances and consideration of subjective intent in
others.
The first step in interpreting a statute is to examine the language Congress
used. Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). This Court has always
respected the legislative prerogative by presuming that the ―legislature says in a
statute what it means and means in a statute what it says there.‖ United States v.
Ron Pair Enters., Inc., 489 U.S. 235, 241–42 (1989) (citing United States v.
14
Goldenberg, 168 U.S. 95, 102–03 (1897)). When the words of a statute are clear,
then ―the sole function of the courts is to enforce it according to its terms‖ . . . and
the ―judicial inquiry is complete.‖ Id. at 240–41.
Congress wrote Section 5845(f)(3) with the following phrase—either designed
or intended for use. This grammatical structure mandates a mixed standard. The
term ―designed‖ is separated from the word ―intended‖ by the disjunctive word ―or.‖
This construction suggests that the statutory terms separated by a disjunctive
apply to different situations are to be given separate meanings unless the context
dictates otherwise. When an item is designed as a destructive device, the plain
language makes a defendant‘s subjective intent irrelevant. Johnson, 152 F.3d at
626. But in other circumstances—when the item is not inherently designed as a
destructive device—subjective intent may be considered. Id.
2. A mixed standard comports with the specific context in
which the statutory language is used.
A mixed standard comports with section 5845(f)‘s overall context as well. A
statute‘s words must be read into context ―with a view to their place in the overall
statutory scheme.‖ FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133
(2000) (quoting Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989)). Sections
5845(f)(1) and (2) do not mention intent because it is a regulatory measure in the
interest of public safety, ―premised on the theory that one would hardly be surprised
to learn that the possession of hand grenades is not an innocent act.‖ See United
States v. Freed, 401 U.S. 601, 609 (1971). As a result, the only relevant inquiry is
15
whether the grenade is designed for use as a weapon. United States v. Ruiz, 73 F.3d
949, 951 (9th Cir. 1996).
By contrast, subsection (3) explicitly includes a mens rea requirement—intent
to combine parts to use as a destructive device. This Court has long recognized that
determining the mental state required for commission of a federal crime requires
―construction of the statute and . . . inference of the intent of Congress.‖ United
States v. Balint, 258 U.S. 250, 253 (1922). And, here, this Court can infer that
Congress‘s use of the term ―intended‖ means that subsection 5845(f)(3) has a mens
rea requirement in certain circumstances. Congress added an intent element into
subsection (3) to account for instances where component parts are ambiguous as to
whether they have a benign or destructive use. Johnson, 152 F.3d at 625. For
example, a defendant may possess parts that, when put together, have only a
destructive use. Id. In this scenario, these parts, like subsections (1) and (2), clearly
have a destructive use and the statute automatically proscribes the device by
design. Id. But a defendant may also possess parts that, when combined, have
either a destructive or legitimate use. Id. As a result, courts must look at the
defendant‘s subjective intent in this circumstance. Id. at 627. Otherwise, the statute
would ―criminalize a broad range of apparently innocent conduct.‖ See Liparota v.
United States, 471 U.S. 419, 426 (1985).
3. The subjective standard and the objective standard lack
consistency and fairness.
The subjective standard and the objective standard are inflexible. The court of
appeals correctly identified that a ―failure to look past the possible objective use of
16
individual items leads to potentially absurd results‖ because any weapon or device
could be reduced to its component parts, and each part could, in turn, be found
innocuous. R. at 20. And statutes should receive a sensible construction to
effectuate the legislative intention, and, if possible, avoid an unjust or an absurd
conclusion. See In re Chapman, 166 U.S. 661, 667 (1897).
Using a purely objective standard expands the statute‘s coverage in an absurd
and wholly unintended manner. Oba, 448 F.2d at 901. Take, for example, a
completed weapon that does not fall within the statute‘s definition of a ―firearm,‖
but a combination of parts from this same weapon would fall within the statute if
they could be used destructively. Id. This is true with every conceivable weapon and
this reading would make ―the sum of the parts exceed the whole.‖ Id.
Likewise, the purely objective standard also would subject all devices capable
of destructive use to fall within the scope of Section 5845(f)(3)‘s prohibitions. Id. For
example, the miner or lumberjack who assembled dynamite, caps, and fuse for use
in the normal course of work would need to apply to the Secretary of Treasury for
permission to assemble these materials, pay a prescribed tax, and register as a
manufacturer. Id.
The purely subjective standard suffers from similar problems. For example, in
Johnson, the defendant created two pipe bombs by filling plastic pipes with firework
powder and nails, inserting fuses, and sealing the pipes with candle wax. 152 F.3d
at 621. The defendant then placed these bombs in the hardware store where he
worked intending to discover the bombs and ―play the hero‖ by pointing them out to
17
his supervisors. Id. Although, objectively, the defendant created and designed
destructive devices, under the purely subjective standard the defendant would face
no criminal liability under the statute. This ignores the harm posed by the conduct.
The purely subjective standard would also write the affirmative defense set
forth in the statute out of existence. The statute exempts devices that are ―neither
designed nor redesigned for use as a weapon.‖ 26 U.S.C. § 5845(f)(3). But looking
solely to a defendant‘s subjective intent would make ―otherwise innocent devices
unlawful,‖ altering the intent of Congress in the process. See United States v. Greer,
404 F. Supp. 1289, 1291 (W.D. Mich. 1975).
The mixed-use standard avoids these problems altogether. If an item is
objectively designed as a destructive device, it is one without considering what the
defendant subjectively intended. But if components have destructive and nondestructive functions, the defendant‘s subjective intent matters. This approach
comports with congressional intent and common sense.
B. Borne’s Subjective Intent Was Irrelevant Under the Mixed
Standard.
Upon her arrest, Borne had the parts to create two different destructive
devices as defined in 26 U.S.C. § 5845(f)(3). R. at 19–20. She had a USB drive with
plans for a 3D printed gun and a plastic filament formula that, when combined
using a 3D printer, would create the components for a firearm that explodes when
the user pulls the trigger. R. at 18. She also had hairspray, matches, a 3D printed
cylinder, and other miscellaneous items, that collectively would create a primitive
pipe bomb. R. at 20–21. These component parts are not viewed in isolation but
18
rather the ―nature of the completed device.‖ United States v. Lussier, 128 F.3d 1312,
1316 (9th Cir. 1997). And the nature of both completed devices are objectively
destructive on their face—a booby-trapped explosive firearm and a primitive pipe
bomb. R. at 21–22.
The jury convicted Borne for possessing the parts to create both destructive
devices under subsection 5845(f)(3). R. at 18. Yet, she contends that she did not
subjectively intend to create either weapon with the parts. R. at 20. Instead, she
asserts that she wanted to get the approval from her ―role model‖—a fugitive of the
United States and member of a foreign terrorist organization—by showing him the
parts. R. at 6, 20.
1. Section 5845(f)(3) bars any consideration of Borne’s
subjective intent because the disassembled primitive
pipe bomb—the components of which Borne had in her
possession—was designed as a weapon.
When arrested, Borne had the following items in her possession: a 3D-printed
cylinder that was a firearm component, hairspray, and matches. R. at 10, 18. These
items in Borne‘s possession, when combined, can objectively create a pipe bomb. R.
at 18. The court of appeals correctly concluded that Borne‘s subjective intent
regarding the disassembled, primitive pipe bomb was irrelevant to determine if the
pipe bomb itself constituted a destructive device. Within this context, design refers
to the objective, physical structure, or method of operation of the device. See
Posnjak, 457 F.2d at 1116; see also United States v. Fine, 413 F. Supp. 728, 737
(W.D. Wis. 1976) (recognizing examination considers completed device as a whole to
determine if device is destructive). A pipe bomb is a device designed with
19
destructive capabilities and no legitimate purpose. Thus, Borne‘s subjective intent
to use the items in a different manner does not transform the pipe bomb into
something besides a weapon.
Unfortunately, homemade destructive devices have become common. Courts
have routinely found that legally possessed items can create a destructive device.
See, e.g., United States v. Ragusa, 664 F.2d 696, 699–701 (8th Cir. 1981) (upholding
conviction after finding the defendant possessed a destructive device made from six
trash bags containing gasoline suspended in a house, connected by overlapping
paper towels, leading to matchbooks fastened to cigarettes); United States v.
Buchanan, 787 F.2d 477, 483–84 (10th Cir. 1986) (finding a homemade device made
of a plastic milk container filled with gasoline and charcoal fluid connected to a fuse
made of rags was a destructive device); United States v. Campbell, 685 F.2d 131,
132 (5th Cir. 1982) (upholding indictment for possession of a destructive device
made from "cloth rags, flammable liquid with a fuse made of incense sticks‖).
When the court determines that lawfully possessed items are combined into a
device useful only as a weapon, the defendant's subjective intent is irrelevant for
purposes of § 5845(f)(3). For this reason, Borne cannot claim that, while she
possessed all the items necessary to fashion a destructive device, she had not taken
the final steps to make it into an explosive device. Such evidence is irrelevant
because, in Section 5845(f)(3), Congress determined that it is illegal for someone to
knowingly take all the components necessary to build a bomb and put them in one
place from which a functional destructive device could be ―readily assembled.‖
20
Johnson, 152 F.3d at 627. The pipe bomb could be readily assembled into one. See
United States v. Hamrick, 43 F.3d 877, 884 (4th Cir. 1995) (finding disassembled
bomb was a destructive device though needing slight modifications to render it fully
operable).
2. Section 5845(f)(3) bars any consideration of Borne’s
subjective intent because the 3D gun—the plans for
which Borne had in her possession—was designed as a
weapon.
The court of appeals also correctly concluded that Borne‘s subjective intent
regarding the 3D gun plans was irrelevant to determine if the plans themselves
constituted a destructive device. Looking to the device as a whole, the 3D gun was a
―completed bomb designed to cause death of serious bodily harm to the individual
holding the device and people in the user's immediate vicinity.‖ R. at 21. It explodes
every time the user pulls the trigger. R. at 18. As with the primitive pipe bomb,
Borne‘s subjective intent to use the 3D gun—something designed as a weapon—in a
different manner does not transform the item into something besides a weapon.
This method of operation alone may establish the firearm is designed as
destructive. See United States v. LaCock, 366 F.3d 883, 888 (10th Cir. 2004). For
example, the United States Court of Appeals for the Tenth Circuit held that a small
metal box designed to shoot a six-foot-high flame in the air was a destructive device
even though the evidence at trial established that the box did not explode. Id. The
box still was a ―booby-trap, victim-related type of device.‖ Id. at 886. The court
reasoned that the device‘s manner of operation clearly makes it an incendiary bomb
or similar device under the statute. Id. at 888.
21
Borne's 3D printed gun, like the destructive device in LaCock, is objectively
and clearly a destructive device because of its manner of operation. It qualifies as
an ―explosive bomb‖ or a ―similar device.‖ 26 U.S.C. §§ 5845(f)(1)(A), 5845(f)(1)(F).
Although the physical structure of the completed 3D printed gun appears to be a
firearm on its face, the device would "always blow up when fired, causing significant
bodily harm or death to the user of the device and anyone standing in close
proximity to the user." R. at 18. Borne's 3D printed firearm is no less a "booby-trap,
victim related type of device" designed to explode when the trigger is pulled. R. at
18.
The fact that the 3D printed gun is dysfunctional has no bearing on the
analysis. United States v. Rushcamp, 526 F.2d 1380, 1382 (6th Cir. 1975).
Malfunctioning or shoddy workmanship ―cannot make a device that contains all the
ingredients necessary to inflict harm, and to do nothing more, into something more
benign.‖ United States v. Langan, 263 F.3d 613, 625 (6th Cir. 2001). The
government need only show that the device was readily convertible into a
destructive device. See Rushcamp, 526 F.2d at 1382 (holding expert's inability to
identify the cause of device's malfunction not ―fatal to the government's proof since
even without that mechanism the launcher could be fired with a simple battery or
detonator.‖).
The fact that Borne transported plans and not the gun itself does not
exonerate her. She simply needed a 3D printer to transform the plans into a
destructive device. As the court of appeals recognized,
22
The fact that the plans are just ―ones and zeros‖ is immaterial . . . because
with the proper equipment the intended device could be mass-produced in
a matter of hours. We must accept that we live in a world where digital
items can be made into tangible items in the blink of an eye, and the law
must keep pace with these realities.
R. at 21.
The world of laptops, smart phones, PDAs, and flash drives has created an
information revolution. This portability of intellectual property has created an
ability to generate a sea of information, transport that information across the world
and then create new seas of data. The full ramifications of this revolution are still
evolving. The advent of 3D printing has made this technological revolution even
more dangerous, as the Internet allows users to instantaneously share computer
code to create devices around the world. See Lucas S. Osborn, Regulating ThreeDimensional Printing: The Converging Worlds of Bits and Atoms, 51 San Diego L.
Rev. 553, 560 (2014). In light of these modern technological advances, the court of
appeals properly appreciated the risks computer code can pose. See Andrea M.
Matwyshyn, Hacking Speech: Informational Speech and the First Amendment, 107
Nw. U. L. Rev. 795, 804 (2013).
C. If Borne’s Subjective Intent Is Considered, the Items in Her
Possession When Printed and Assembled Would Still Be
Destructive Devices Because She Intended to Create Weapons
Regardless of How She Intended to Use Them.
Under an objective analysis, the items in Borne‘s possession fit the statutory
definition of destructive devices. The result will not change should this Court delve
into Borne‘s subjective intent. The items in her possession were firearm
components. They were crafted as firearm components. She merely wanted to show
23
her prowess in making firearm components. The fact that she wanted to use a
weapon for a different purpose does not change weapons into something else. They
are still weapons.
II.
18 U.S.C. § 2339B PROHIBITS MAKING PLANS TO MEET AN INDIVIDUAL OF A
KNOWN FOREIGN TERRORIST ORGANIZATION TO SHOW AND DEMONSTRATE
POTENTIALLY DANGEROUS COMPUTER CODE TO THAT INDIVIDUAL.
The war on terror is expensive. The prohibition involved in this case is not
about restricting speech or association, but rather based on the fact Congress
recognized that, to win that war, we must starve our enemies of all material
support and resources to make attacks on Americans less likely. Whether through
funding, training, or, as here, providing computer code with the means to
automatically produce undetectable weapons with a 3D printer, no one may support
our enemies in this manner.
A. The Government Offered Sufficient Evidence for the Jury to
Conclude Borne Violated Section 2339B.
As a threshold matter, Borne challenges the sufficiency of the evidence to
support her conviction. The government charged Borne with, and a jury convicted
her of, violating Section 2339B—a law Congress specifically passed to curtail
economic support to terrorist activities. R. at 18; see Pub. L. No. 104-132, § 301(a)(7)
(1968). Once the State Department designates a foreign organization as a ―known
foreign terrorist organization,‖ Section 2339B makes it a crime to provide ―material
support or resources‖ to that organization or individuals associated with it. 18
U.S.C. § 2339B.
24
Borne bears a heavy burden in seeking to overturn her conviction on
sufficiency grounds. Sufficient evidence supports a conviction if, ―viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.‖
Jackson v. Virginia, 443 U.S. at 319. This deferential standard of review protects
the trier of fact‘s responsibility to resolve conflicting testimony, weigh the evidence,
and draw reasonable inferences from the evidence presented. Id. A reviewing court
need not ―ask itself whether it believes that the evidence at the trial established
guilt beyond a reasonable doubt.‖ Id. at 318–19 (citation omitted). Rather, the
reviewing court must respect the province of the trier of fact by considering all
evidence in the light most favorable to the prosecution and drawing all reasonable
inferences in favor of the prosecution. Wright v. West, 505 U.S. 277, 296–97 (1992).
Finally, ―a reviewing court faced with a record of historical facts that supports
conflicting inferences must presume—even if it does not affirmatively appear in the
record—that the trier of fact resolved any such conflicts in favor of the prosecution,
and must defer to that resolution.‖ Id. at 296–97.
The government introduced ample evidence to support Borne‘s conviction
under Section 2339B. Her claims to have ―innocent and pure‖ motives and that the
computer code was ―harmless on its face,‖ R. at 23, were presented to the jury,
which rejected them under a proper jury charge. Those arguments provide no basis
for overturning her conviction for insufficient evidence. A rational fact finder could
have found the crimes charged proved beyond a reasonable doubt.
25
1. The government introduced evidence that Borne planned
to provide computer code to a known foreign terrorist
organization, which is material support within the
meaning of Section 2339B.
Computer code is something that, if provided to a foreign terrorist organization
like Borne was planning to do here, could qualify as ―material support or resources‖
under Section 2339B‘s plain language. Material support or resources is defined as:
any property, tangible or intangible, or service, including currency or
monetary instruments or financial securities, financial services, lodging,
training, expert advice or assistance, safehouses, false documentation or
identification, communications equipment, facilities, weapons, lethal
substances, explosives, personnel (1 or more individuals who may be or
include oneself), and transportation, except medicine or religious
materials.
18 U.S.C. § 2339B(g)(4). This language manifestly sweeps broadly, as courts have
consistently recognized in applying this standard to various types of support. 3
Computer code would be ―training,‖ or ―expert advice or assistance.‖ See id.
§ 2339A(b)(2) (defining training as ―instruction or teaching designed to impart a
specific skill, as opposed to general knowledge‖); id. § 2339A(b)(3) (defining ―expert
advice or assistance‖ as ―advice or assistance derived from scientific, technical or
other specialized knowledge‖); see also id. § 2339B(g)(4) (relying on definitions from
Section 2339A). In fact, Justice Breyer made the same observation in his dissenting
opinion in Humanitarian Law Project when he offered ―computer programming‖ as
See, e.g., Ay v. Holder, 743 F.3d 317, 319 (2d Cir. 2014) (holding that providing
food on ―four or five occasions‖ and clothing on one occasion to members of a foreign
terrorist organization qualified as ―material support‖); Viegas v. Holder, 699 F.3d
798, 803 (4th Cir. 2012) (holding that hanging posters and paying dues to a foreign
terrorist organization qualified as ―material support‖); Barahona v. Holder, 691
F.3d 349, 351–52 (4th Cir. 2012) (finding that allowing guerillas to forcefully use
the defendant‘s kitchen in El Salvador amounted to ―material support‖).
3
26
an example of what would fall within the scope of Section 2339B. 561 U.S. at 48
(Breyer, J., dissenting).
2. The government introduced evidence that Borne knew
Dixie Millions was a foreign organization engaged in
terrorism.
The record reflects Borne had the knowledge required under Section 2339B,
which obligates the government to prove she had ―knowledge that the organization
is a designated terrorist organization . . . that the organization has engaged or
engages in terrorist activity . . . or that the organization has engaged or engages in
terrorism.‖ 18 U.S.C. § 2339B(a)(1). Borne does not challenge the sufficiency of this
requirement. Borne actively researched her role model, Clive Allen—the only
publicly known member of the hacktivist duo Dixie Millions. R. at 5, 11. Borne knew
Allen lived in Azran after the Azranian government granted him asylum after the
Secretary of State declared him a criminal and Dixie Millions a foreign terrorist
organization. R. at 5–6. The requirement that a defendant know that the
organization she is assisting has engaged in terrorist activity ensures that no
unwitting donation will result in an individual‘s prosecution.
Borne attempts to add to the government‘s burden by arguing she should not
be held criminally culpable without the specific intent to further Dixie Million‘s
terroristic goals. But in making this argument, she conflates the requirements of
Section 2339A, which has such a knowledge requirement, with Section 2339B,
which does not. It is not clear from the record whether Borne makes this argument
as a sufficiency challenge, a vagueness challenge, or both. Nonetheless, it is without
27
merit. Congress is capable of and knows how to include a specific-intent
requirement when it so desires, and courts should not infer a different intent than
what Congress specifically provides for in a statute. Morissette v. United States, 342
U.S. 246, 263 (1952) (finding that courts ―should not enlarge the reach of enacted
crimes by constituting them from anything less than the incriminating components
contemplated by the words used in the statute‖); see also Liparota, 471 U.S. at 424
(―The definition of the elements of a criminal offense is entrusted to the legislature,
particularly in the case of federal crimes.‖). The legislative history of the statute
also shows that Congress was concerned that ―foreign organizations that engage in
terrorist activity are so tainted by their criminal conduct that any contribution to
such an organization facilitates that conduct.‖ Pub. L. 104-132, § 301(a)(7)
(emphasis added). For that reason, the government was not required to prove that
Borne had the specific intent to further the terrorist organization‘s goals.
3. The government introduced evidence that Borne had
taken substantial steps toward violating Section 2339B.
Thankfully, Borne was arrested before she could carry out her plan to provide
computer code to the terrorist organization. She claims that the timing of her arrest
prevents the government from convicting her of providing material support and
resources under Section 2339B. She is mistaken. Section 2339B‘s plain language
extends to ―[w]hoever knowingly provides material support or resources to a foreign
terrorist organization, or attempts or conspires to do so.‖ 18 U.S.C. § 2339B
(emphasis added).
28
Some courts impose an additional requirement when a defendant is charged
with the attempt to engage in criminal conduct—that the defendant engaged in
conduct amounting to a substantial step toward the commission of the criminal act.
United States v. Mehanna, 735 F.3d 52, 53 (1st Cir. 2013). 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.
Hernandez-Galvan, 632 F.3d 192, 199 (5th Cir. 2011). It is conduct ―‗planned to
culminate‘ in the commission of the substantive crime being attempted.‖ United
States v. Ivic, 700 F.2d 51, 66 (2d Cir. 1983) (quoting Model Penal Code § 5.01(c)
(Proposed Official Draft 1962)). As the United States Court of Appeals for the
Second Circuit explained,
[w]hile the parameters of the substantial step requirement are simply
stated, they do not always provide bright lines for application. This is not
surprising; the identification of a substantial step, like the identification
of attempt itself, is necessarily a matter of degree that can vary depending
on the particular facts of each case viewed in light of the crime charged.
United States v. Farhane, 634 F.3d 127, 147 (2d Cir. 2011) (citations and internal
quotations omitted).
Here, more than a sufficient basis existed for the jury to conclude that Borne
had taken a substantial step towards providing material support to a foreign
terrorist organization. She was on the way to the airport to fly to Azran and
intended to give valuable computer codes to a member of a foreign terrorist
organization. R. at 12–14, 17. The codes were stored on USB drives packed in her
luggage along with a picture and spreadsheet that tracked Allen. R. at 16. Had
29
Officer Smith not pulled Hershel‘s car over, Borne would have carried out her plan.
R. at 15. This evidence is sufficient for a reasonable trier of fact to conclude that she
had taken substantial steps toward committing the offense.
B. Section 2339B Is Constitutional.
Borne argues that Section 2339B should be struck down on a number of
constitutional grounds. Specifically, she contends that the statutory prohibition
against providing material support to an organization designated as a foreign
terrorist organization (1) is impermissibly vague in providing notice of what
constitutes illegal material support to a foreign terrorist organization; (2) is
overbroad and violates the First Amendment because it sweeps a substantial
amount of constitutionally protected activity within its definition of criminal
conduct; and (3) impermissibly punishes the exercise of her First Amendment
freedom of association without requiring the Government to establish a specific
intent to further the illegal aims of the organization. None of the challenges have
merit.
1. Section 2339B is not void for vagueness.
Borne‘s first constitutional challenge is that Section 2339B is void for
vagueness. The vagueness doctrine is derived from the Fifth Amendment‘s Due
Process Clause. United States v. Williams, 553 U.S. 285, 304 (2008). Due Process
requires that a person be given fair notice of what the law requires, so she may
conform her conduct to it. Id. A law is unconstitutionally vague only if it ―fails to
provide a person of ordinary intelligence fair notice of what is prohibited, or is so
30
standardless
that
it
authorizes
or
encourages
seriously
discriminatory
enforcement.‖ Id.; see also Coates v. Cincinnati, 402 U.S. 611, 614 (1971) (holding a
statute is void for vagueness ―not [when] it requires a person to conform his conduct
to an imprecise but comprehensible normative standard, but rather [when] no
standard of conduct is specified at all.‖). Although greater clarity may be expected
when the challenged statute regulates First Amendment activity than when it does
not, ―perfect clarity and precise guidance have never been required even of
regulations that restrict expressive activity.‖ Williams, 553 U.S. at 286 (citing Ward
v. Rock Against Racism, 491 U.S. 781, 794 (1989)). The focus of a vagueness
challenge is not whether there are any instances in which a statute‘s reach may be
unclear but rather ―whether [the] statute is vague as applied to the particular facts
at issue.‖ Humanitarian Law Project, 561 U.S. at 19. Because the classification of a
statute as void for vagueness is a serious matter, ―[e]very reasonable construction
must be resorted to, in order to save a statute from unconstitutionality.‖ Chapman
v. United States, 500 U.S. 453, 464 (1991) (citations omitted).
Borne‘s vagueness claim is doomed because Section 2339B clearly governs
Borne‘s conduct and speech if the Court finds any expressive component in it.
Humanitarian Law Project, 561 U.S. at 20; United States v. Johnson, 952 F.2d 565,
579 (1st Cir. 1991). Section 2339B is sufficiently clear on its face to provide fair
warning as to what conduct is prohibited under the statute. The requirement that
persons refrain from providing material support to a known foreign terrorist
organization is a readily understandable requirement. Although Borne contends
31
that the requirement is so vague as to deprive her of the ability to conform her
conduct to the statute, nowhere does she explain how the alleged ambiguity affected
her conduct here or deprived her of due process. In a dissent below, Judge Morgan
states that
Ms. Bourne [sic] was not and could not be put on notice that her conduct
was prohibited. We encourage our youth to seek knowledge and to take
advantage of every opportunity, but here we are suggesting that Ms.
Bourne [sic] should have tempered her desire for knowledge because of
some vague generalized fear that a foreign national living free overseas
may do something nefarious.
R. at 26–27. Of course, that is not why she was convicted. Rather, she was convicted
for violating a statute that prohibits her act of planning to provide material support
to a known foreign terrorist organization. And Section 2339B requires that she
know the organization has been designated by the Secretary of State as a known
foreign terrorist organization or currently engages in terroristic activity. 18 U.S.C.
§ 2339B(a)(1). Here, the Secretary of State had already determined that Dixie
Millions engaged in terrorist activity that threatened United States citizens or our
national security. R. at 5; 8 U.S.C. § 1189(a)(1) (2012).This is a far cry from a ―vague
generalized fear.‖ And it is not innocent activity.
This Court should reject Borne‘s vagueness challenge to Section 2339B just as
it did in Humanitarian Law Project when faced with a similar challenge. As it did
there, the conduct at issue fits comfortably within the core of Section 2339B‘s
proscriptions. And as this Court explained,
As a general matter, the statutory terms at issue here are quite different
from the sorts of terms that we have previous declared to be vague. We
have in the past ―struck down statutes that tied criminal culpability to
32
whether the defendant‘s conduct was ‗annoying‘ or ‗indecent‘—wholly
subjective judgments without statutory definitions, narrowing context, or
settled legal meanings.‖ . . . Applying the statutory terms in this action—
―training,‖ ―expert advice or assistance,‖ ―service,‖ and ―personnel‖—does
not require similarly untethered, subjective judgments.
Humanitarian Law Project, 561 U.S. at 20–21.
Moreover, Section 2339B‘s knowledge requirement ―destroy[s] any force in the
argument that application of the [statute] would be so unfair that it must be held
invalid.‖ Boyce Motor Lines v. United States, 342 U.S. 337, 342 (1952). That is in
part because a scienter requirement ensures that a defendant ―actually have
intended the conduct which the statute seeks to guard against.‖ Wright v. New
Jersey, 469 U.S. 1146, 1152 n.5 (1985); see also Humanitarian Law Project, 561 U.S.
at 21 (explaining that ―the knowledge requirement of the statute further reduces
any potential for vagueness‖). By attaching a knowledge requirement to ensure
Borne knew that she was providing support to a terrorist organization, Section
2339B defines ―the criminal offense with sufficient definiteness that ordinary people
can understand what conduct is prohibited‖ by the statute and avoids its ―arbitrary
and discriminatory enforcement.‖ Kolender v. Lawson, 461 U.S. 352, 357 (1983).
To the extent Borne‘s vagueness challenge can be construed as a facial
challenge, it is equally meritless. Courts entertaining a facial vagueness challenge
first must determine whether the challenged statute ―reaches a substantial amount
33
of constitutionally protected conduct.‖ Kolender, 461 U.S. at 358 n.8. Courts have
uniformly found that Section 2339B does not.4
Examining Section 2339B in the light of Borne‘s conduct, no person of ordinary
intelligence would have any difficulty in understanding that what she did was
illegal. A reasonably intelligent person is on notice that such conduct violates the
material support statute. This Court should reject Borne‘s vagueness challenge to
Section 2339B.
2. Section 2339B does not unconstitutionally infringe upon
Borne’s First Amendment free speech rights.
Borne next claims the conviction violates her free speech rights. She contends
that the First Amendment prohibits Section 2339B from punishing her for planning
to share computer code with known foreign terrorist organizations. Such a
conclusion is not supported by logic, reason, or this Court‘s precedents.
In fact, this is not the first time this Court has considered the First
Amendment implications of Section 2339B. Five years ago in Humanitarian Law
Project v. Holder, this Court considered a pre-enforcement challenge to Section
2339B brought by two American citizens and six human-rights groups wishing to
See, e.g., Humanitarian Law Project, 561 U.S. at 37–40 (finding that 18 U.S.C.
§ 2339B does not impose guilt by association or criminalize advocacy); United States
v. Taleb-Jedi, 566 F. Supp. 2d 157, 183–84 (E.D.N.Y. 2008) (―Section 2339B does not
reach a substantial amount of constitutionally protected speech or association to
warrant invalidation because the statute does not prohibit mere membership or
association and only criminalizes the conduct of providing material support or
resources to designated FTOs.‖); United States v. Shah, 474 F. Supp. 2d 492, 499
(S.D.N.Y. 2007) (same); United States v. Assi, 414 F. Supp. 2d 707, 719 (E.D. Mich.
2006) (same).
4
34
provide aid, training, and service to an organization of Kurdish rebels in Turkey
and an organization of Tamil rebels in Sri Lanka. 561 U.S. at 10. Because both rebel
groups had been previously designated by the State Department as known terrorist
organizations, Section 2339B prohibited the petitioners from providing them any
material support. Id. at 9.
The petitioners attempted to challenge the law facially and as applied, but this
Court only considered the activities in which the petitioners specifically said they
wished to engage. Id. In doing so, this Court recognized that indulging hypothetical
activities described at such a level of generality
would require ―sheer speculation‘—which means the [petitioners] cannot
prevail in their preenforcement challenge. . . . It is apparent with respect
to these claims that ―gradations of fact or charge would make a difference
as to criminal liability‖ and so ―adjudication of the reach and
constitutionality of [the statute] must await a concrete fact situation.‖
Id. at 25 (citing Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,
454 (2008); Zemel v. Rust, 381 U.S. 1, 20 (1965)). The Court ultimately rejected the
petitioners‘ First Amendment claim. Id. at 36.
Borne now attempts to do what the petitioners in Humanitarian Law Project
could not. She seeks to have this Court strike down Section 2339B as applied to her
concrete fact situation as well as on its face.5 But nothing about Section 2339B‘s
In Humanitarian Law Project, this Court evaluated the preenforcement challenge
to Section 2339B under strict scrutiny because the petitioners there wished to
engage in political speech and the material-support restriction was therefore
content-based. 561 U.S. at 27. In other words, the speech itself was the material
support. Here, the restriction is based not on what was said, but what was done. By
planning to share the computer code with Dixie Millions, Borne violated Section
2339B without saying a word.
5
35
application to Borne‘s conduct in providing computer code to a known terrorist
organization justifies a different result in this case.
a. Borne’s as-applied challenge fails because the First
Amendment does not bar Borne’s conviction for
materially
supporting
a
foreign
terrorist
organization by sharing computer files that
function
to
automatically
create
firearm
components on a 3D printer.
The proper focus of the First Amendment inquiry is on what Borne did. She
was convicted for attempting to or conspiring to provide electronic information on
computer flash drives to a known foreign terrorist organization. R. at 17–18. The
conduct of passing computer files to another has no expressive elements to implicate
the First Amendment. Even if it did, the grave concerns at stake justify the
restrictions on Borne‘s rights.
i.
The First Amendment does not apply because
computer code as used by Borne in this
circumstance is not an item of expressive
conduct.
Borne contends her conviction raises First Amendment concerns because she
seeks to share information on a computer flash drive with others and this is speech,
not conduct. Of course, the First Amendment protects those who would stifle the
free expression of ideas. N.Y. Times v. Sullivan, 376 U.S. 254, 264 (1964). But the
constitutional guarantee is not triggered whenever words are spoken. Giboney v.
Empire Storage & Ice Co., 336 U.S. 490, 502 (1949) (―[I]t has never been deemed an
abridgement of freedom of speech or press to make a course of conduct illegal
merely because the conduct was in part initiated, evidenced, or carried out by
36
means of language, either spoken, written, or printed.‖). If a statute restricts
conduct rather than directly limiting speech, it only implicates the First
Amendment if it impairs actions that are ―inherently expressive.‖ Rumsfeld v.
Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 66 (2006). Even if
expressive, conduct may still not be protected by the First Amendment if ―[t]he
expressive component . . . is not created by the conduct itself but by the speech that
accompanies it.‖ Id. In other words, the action being restricted must have an
expressive component. Here, it does not.
A computer file may take two forms—source code and object code. Source code
refers to ―the spelled-out program commands that humans can read.‖ Lexmark Int’l,
Inc. v. Static Control Components, Inc., 387 F.3d 522, 533 (6th Cir. 2004). Before a
computer can perform the instructions, however, they must be translated into object
code, a binary representation of the source code, which a computer can directly
execute. See Cason Schmit, Intellectual Property’s Upcoming Quantum Leap:
Projecting the Future Challenges Facing Quantum Information Technology Through
A Historical Perspective of the Computer Revolution, 95 J. Pat. & Trademark Off.
Soc‘y 271, 274 (2013). The electronic information saved on to a Borne‘s flash drive is
object code—a series of 1‘s and 0‘s that tell a computer what to do. See id. It is not
readable by humans and, in this medium, cannot be characterized as a form of
expressive speech. Id.
The United States Court of Appeals for the Second Circuit held that the First
Amendment did not apply to computer code in the case of Commodity Futures
37
Trading Commission v. Vartuli, 228 F.3d 94 (2d Cir. 2000). There, the court rejected
a free-speech challenge to a statutory provision requiring commodity-trading
advisors to register with the Commodity Futures Trading Commission. Id. at 111
(citing 7 U.S.C. § 6m(1) (1996)). The defendants in Vartuli qualified as advisors
under the statute because they manufactured and marketed a computer program
that analyzed futures transactions and provided customers with ―buy‖ and ―sell‖
signals—―i.e., it told customers whether to buy or sell yen or Swiss franc futures.‖
Id. at 103. The defendants maintained that their computer program conveyed
―constitutionally protected speech and that any registration requirement applicable
to it therefore must be analyzed as a prior restraint.‖ Id. at 109. In rejecting this
argument, the court reasoned
The language at issue here was to be used in an entirely mechanical way,
as though it were an audible command to a machine to start or to stop.
[T]he point . . . [was] not to convey information or to assert values. It was
to induce action without the intercession of the mind or the will of the
recipient. None of the reasons for which speech is thought to require
protection above and beyond that accorded to non-speech behavior—the
pursuit of truth, the accommodation among interests, the achievement of
social stability, the exposure and deterrence of abuses of authority,
personal autonomy and personality development, or the functioning of a
democracy—is implicated by the communications here in issue, and none
counsels in favor of treating the [computer output] at issue as protected
―speech.‖
Id. at 111 (citations omitted).
One year later, the United States Court of Appeals for the Second Circuit held
that computer source code could have expressive components. Universal City
Studios, Inc. v. Corley, 273 F.3d 429, 445 (2d Cir. 2001). There, a journalist
challenged the Digital Millennium Copyright Act, which prohibits the distribution
38
of technologies that can circumvent the encryption used to limit access to
copyrighted files. Id. at 435 (citing 17 U.S.C. §§ 1201(a)(2), (b)(1) (2012)). The
journalist had published source code on a hacking enthusiast‘s website to allow
others to use it. Id. at 436. The court found the source code at issue to be subject to
the First Amendment because ―[c]ommunication does not lose constitutional
protection as ‗speech‘ simply because it is expressed in the language of computer
code.‖ Id. at 445. In reaching this conclusion, the court did not overrule its earlier
decision in Vartuli. Rather, the court distinguished Vartuli based on the nature of
the code involved and the fact ―a human‘s mental faculties do not intercede in
executing the instructions.‖ Id. at 448 n.20. The court further confirmed that code
used to communicate to a program user is ―not necessarily protected‖ and that the
code used to communicate to a computer is ―never protected.‖ Id. at 449.
Other courts have implicitly drawn the same distinction between source code
and object code by finding First Amendment protection for source code. See, e.g.,
Bernstein v. U.S. Dep’t of Justice, 176 F.3d 1132, 1140–41 (9th Cir.) (recognizing
encryption source code as First Amendment protected speech because it is the
preferred means for expression of cryptographic ideas and algorithms), reh’g
granted en banc and opinion withdrawn, 192 F.3d 1308 (9th Cir. 1999); see also Def.
Distributed v. U.S. Dep’t of State, No. 1-15-CV-372-RP, 2015 WL 4658921, at *6
(W.D. Tex. Aug. 4, 2015) (assuming in preliminary injunction proceeding that
computer-aided-design files were subject to the First Amendment protection
because Plaintiff wanted to distribute source code as ―a baseline to be built upon,
39
altered and otherwise utilized‖); Karn v. U.S. Dep’t of State, 925 F. Supp. 1, 9–10
(D.D.C. 1996) (assuming without expressly so holding that the First Amendment‘s
protection extends to source code containing comments useful only to humans and
ignored by computers).
The First Amendment does not apply to Borne‘s computer flash drives
containing object code used to communicate with a computer. Whatever expressive
value may exist generally in computer files, the ones involved in this case merely
serve to perform a specific function—to tell a computer how to manufacture firearm
components on a 3D printer. In their electronic form, the computer files were not
―sufficiently imbued with elements of communication,‖ nor do they ―convey a
particularized message‖ to the foreign terrorist organization with whom Borne
wished to speak. Texas v. Johnson, 491 U.S. 397, 404 (1989) (citing Spence v.
Washington, 418 U.S. 405, 409 (1974)). Without an attempt to restrict the free flow
of a medium that has expressive qualities, the prosecution of Borne for distributing
computer object code to a foreign terrorist organization does not constitute the
regulation of speech.
ii. If speech rights are implicated by Borne’s
conduct, the application of Section 2339B
survives the O’Brien intermediate-scrutiny
standard.
A generally-applicable law that incidentally burdens expression in a particular
instance is not subject to the kind of strict scrutiny that attends laws targeted
specifically at speech. Instead, this Court has prescribed an intermediate level of
First Amendment scrutiny—one that recognizes and accommodates the pursuit of
40
legitimate governmental interests. United States v. O’Brien, 391 U.S. 367, 376
(1968). An incidental free speech limitation is constitutional if:
[1] it is within the constitutional power of the government; [2] if it
furthers an important or substantial government interest, [3] if the
government interest is unrelated to the suppression of free expression;
and [4] if the incidental restriction on alleged First Amendment freedoms
is no greater than is essential to the furtherance of that interest.
Id. at 376–77. The government‘s prosecution of Borne for planning to provide
material support to a known foreign terrorist organization satisfies the O’Brien
standard.
First, the government undoubtedly has the constitutional power to enact and
enforce legislation prohibiting the provision of material support and resources to
foreign enemies, including known foreign terrorist organizations. This Court has
recognized this concept in several cases. See, e.g., Humanitarian Law Project, 561
U.S. at 40 (―We hold that, in regulating the particular forms of support that
plaintiffs seek to provide to foreign terrorist organizations. Congress has pursued
that objective [to provide for the common defense] consistent with the limitations of
the First and Fifth Amendments.‖); Regan v. Wald, 468 U.S. 222, 242 (1984)
(rejecting due process arguments related to restrictions imposed by the President on
transactions with Cuba); Zemel, 381 U.S. at 16 (rejecting argument that the travel
ban violated plaintiff‘s First Amendment rights). And the source of this power is
derived from various provisions of the United States Constitution. U.S. Const. art. I,
§ 8 (giving Congress the power to ―regulate Commerce with foreign Nations, and
among the several States‖); art. I, § 10 (giving Congress power to ―define and punish
41
. . . Offences against the Law of Nations.‖); art. II, § 2, cl. 2 (giving Congress power
to carry out the Nation‘s treaty obligations).
Second, the government has a ―paramount‖ interest in defending the United
States from terrorism and organizations devoted to terrorism. Boim v. Quranic
Literacy Inst., 291 F.3d 1000, 1026 (7th Cir. 2002). This Court explained in Haig v.
Agee that ―it is ‗obvious and unarguable‘ that no governmental interest is more
compelling than the security of the Nation.‖ 453 U.S. 280, 307 (1981) (quoting
Aptheker v. Sec’y of State, 378 U.S. 500, 509 (1964)). In passing the material-support
prohibition, Congress made a specific finding that ―foreign organizations that
engage in terrorist activity are so tainted by their criminal conduct that any
contribution to such an organization facilitates that conduct.‖ See Pub. L. No. 104132, § 301(a)(7).
Third, the government‘s restriction is unrelated to the suppression of free
expression. Section 2339B is unrelated to suppressing free expression because it
restricts the actions of those who wish to give material support to the known foreign
terrorist groups, not the expression of those who advocate or believe the ideas that
the groups support. See Regan, 468 U.S. at 242 (ignoring respondent‘s personal
beliefs and support for Cuba to uphold a regulation prohibiting travel to Cuba by
deferring to the executive branch‘s expertise on matters of foreign policy). The
statutory provision does not regulate speech about, or mere association with,
terrorist organizations. Its purpose instead is to limit material support and
resources on which foreign terrorist organizations depend to sustain their terrorist
42
activity. As the legislative history reflects, ―[t]he ban does not restrict . . . an
individual‘s ability to freely express a particular ideology or political philosophy.
Those inside the United States will continue to be free to advocate, think, and
profess the attitudes and philosophies of the foreign organizations.‖ H.R. Rep. No.
104-383, at 43–45 (1995).
Fourth, Section 2339B extends no further than necessary to address the
national security concerns. It does not restrict a person‘s right to join an
organization. H.R. Rep. 104-383, at 43. Nor does it restrict independent advocacy.
Id. To be sure, this Court relied on these facts in Humanitarian Law Project to
uphold Section 2339B under the significantly higher strict scrutiny standard. 561
U.S. at 27. This Court found the restrictions must yield because ―national security
and foreign policy concerns arise in connection with efforts to confront evolving
threats in this area where information can be difficult to obtain and the impact of
certain conduct difficult to assess.‖ Id. at 34. Section 2339B is based on a specific
legislative finding that terrorist organizations ―are so tainted by their criminal
conduct that any contribution to such an organization facilitates that conduct.‖
Antiterrorism and Effective Death Penalty Act of 1996, § 301(a)(7), 110 Stat. 1247,
note following 18 U.S.C. § 2339B.
Section 2339B survives intermediate scrutiny under O’Brien. The statute
promotes an important governmental interest; it is aimed at stopping aid to
terrorists, rather than suppressing free expression; and it is reasonably tailored,
43
especially considering the latitude afforded to the government in areas touching
upon foreign-policy considerations.
iii. The application of Section 2339B to Borne’s
conduct also survives the strict-scrutiny
standard applied in Humanitarian Law Project
v. Holder.
Even if analyzed under strict scrutiny as it was in Humanitarian Law Project,
Section 2339B satisfies that standard as well. The statute is carefully drawn to
cover only a narrow category of speech, and the prohibition is necessary to
safeguard the government‘s compelling interest in preventing terrorism.
No one could seriously question the compelling nature of the government‘s
interest in protecting against terrorism. After all, this Court has repeatedly
recognized how compelling it is. See, e.g., Haig v. Agee, 453 U.S. at 307 (calling
interest ―obvious and unarguable‖) (internal quotation omitted). But the narrow
tailoring aspect of the strict scrutiny analysis is fundamentally different when laws
like Section 2339B are considered. It is not the balancing used in a traditional
strict-scrutiny analysis. See Amanda Shanor, Beyond Humanitarian Law Project:
Promoting Human Rights in a Post-9/11 World, 34 Suffolk Transnat‘l L. Rev. 519,
531 (2011). In conducting that analysis in Humanitarian Law Project, this Court
explained
national security and foreign policy concerns arise in connection with
efforts to confront evolving threats in an area where information can be
difficult to obtain and the impact of certain conduct difficult to assess. . . .
In this context, conclusions must often be based on informed judgment
rather than concrete evidence, and that reality affects what we may
reasonably insist on from the Government. The material-support statute
is, on its face, a preventive measure—it criminalizes not terrorist attacks
44
themselves, but aid that makes the attacks more likely to occur. The
Government, when seeking to prevent imminent harms in the context of
international affairs and national security, is not required to conclusively
link all the pieces in the puzzle before we grant weight to its empirical
conclusions.
561 U.S. at 34–35.
The dissent below criticized this approach. R. at 26 (―The dissent in
Humanitarian Law Project was correct . . . .‖); R. at 27 (―I would also consider that
this case shows the faults in Humanitarian Law Project and sustain Ms. Bourne‘s
[sic] . . . facial challenge.‖). Of course, neither Judge Morgan nor the court of appeals
below has the freedom to ignore this Court‘s rulings. In this respect, Humanitarian
Law Project is directly on point and controlling.
b. Borne’s facial challenge fails because Section 2339B
is not substantially overbroad.
Borne also raises an overbreadth challenge to Section 2339B. Overbreadth is
an exception to the prudential standing requirement that a plaintiff may only assert
her own legal rights and interests. See Warth v. Seldin, 422 U.S. 490, 499 (1975). If
a regulation is alleged to be so broad it is incapable of any permissible application,
courts may allow a party to bring a facial challenge to a statute because it threatens
others not before the court. N.Y. State Club Ass’n v. City of New York, 487 U.S. 1, 14
(1987). Because overbreadth is ―strong medicine‖ to be used ―sparingly and only as a
last resort,‖ a plaintiff must show that the alleged ―overbreadth of a statute is not
only real, but substantial . . . judged in relation to the statute‘s plainly legitimate
sweep.‖ Broadrick v. Oklahoma, 413 U.S. 601, 613, 615 (1973). Borne cannot meet
that burden.
45
i.
A facial challenge is improper because Section
2339B constitutionally applies to Borne’s
specific conduct.
Before conducting the facial analysis, however, the Court must determine if it
is appropriate and necessary. Here, it is not. Because Section 2339B may be
constitutionally applied to Borne, her facial overbreadth claim necessarily fails.
A facial challenge to a legislative Act is the most difficult challenge to mount
successfully because Borne, as the challenger, must establish that no set of
circumstances exists under which the Act would be constitutionally valid. Brockett
v. Spokane Arcades, 472 U.S. 491, 506 (1985). As stated above, there is a
circumstance under which Section 2339B is constitutionally valid—Borne‘s. ―[A]
person to whom a statute may constitutionally be applied may not challenge that
statute on the ground that it may conceivably be applied unconstitutionally to
others in situations not before the Court.‖ New York v. Ferber, 458 U.S. 747, 767
(1982).
ii. Alternatively, Section 2339B is not unconstitutionally overbroad.
Should this Court reach the merits of an overbreadth claim to consider factual
scenarios not before the Court, it would necessarily fail for the same reasons Section
2339B survives strict scrutiny. See supra at § II.B.2.a.iii. This Court applied the
strict-scrutiny analysis in Humanitarian Law Project to uphold Section 2339B
where—unlike the present case—some of the petitioners‘ conduct involved pure
speech. 561 U.S. at 34. Nonetheless, this Court explained that Section 2339B was
constitutionally permissible because
46
it does not seek to suppress ideas or opinions in the form of ―pure political
speech.‖ Rather, [it] prohibit[s] ―material support,‖ which most often does
not take the form of speech at all. And when it does, the statute is
carefully drawn to cover only a narrow category of speech to, under the
direction of, or in coordination with foreign groups that the speaker knows
to be terrorist organizations.
Id. at 26. In light of that holding, Borne cannot plausibly contend that Section
2339B is substantially overbroad, especially in a case where the alleged material
support involves providing known foreign terrorist organizations with the means of
automatically printing 3D guns that could evade metal detectors.
The court of appeals correctly recognized that Brandenburg was inapplicable.
R. at 21. In that case, this Court articulated a test to determine the
constitutionality of the regulation of advocacy directed at inciting lawless acts.
Brandenburg v. Ohio, 395 U.S. 444, 449 (1969) (finding speech at Ku Klux Klan
rally was constitutionally protected because defendant did not ―incite immediate
lawless action‖). Brandenburg pertains to situations where the content and
circumstances of the defendant‘s statement itself become the basis of liability. Id. at
445–46. The restrictions of imminency are inapplicable because the criminal
conduct here—attempt to provide material support and resources—is itself a crime
which only incidentally involves speech. See United States v. Hashmi, No. 06 Crim.
442(LAP), 2009 WL 4042841, at *9 (S.D.N.Y. Nov. 18, 2009) (rejecting Brandenburg
argument in material support case because ―the facilitation of terrorism is not
protected by the First Amendment.‖); United States v. Sattar, 395 F. Supp. 2d 79,
102 (S.D.N.Y. 2005) (―Brandenburg analysis does not apply to unlawful speech—
acts such as conspiracy or aiding and abetting.‖).
47
3. Section 2339B does not unconstitutionally infringe upon
Borne’s First Amendment free association rights.
Borne‘s final constitutional challenge is that Section 2339B violates her
freedom of association guaranteed under the First Amendment. Yet again, however,
she overlooks what this Court said Humanitarian Law Project. This Court
considered an identical right-of-association challenge and found expressly that
Section 2339B does not violate the right to freedom of association because the
statute does not prohibit individuals from becoming members of designated
terrorist organizations or impose any sanctions on them for doing so. Humanitarian
Law Project, 561 U.S. at 26. Section 2339B ―does not penalize mere association with
a foreign terrorist organization; what the statute prohibits is the act of giving
material support.‖ Id. at 39.
The right of associational freedom is ―no license to supply terrorist
organizations with resources or material support in any form.‖ United States v.
Lindh, 212 F. Supp. 2d 541, 569 (E.D. Va. 2002). Those who do so cannot invoke
association freedom to shield their conduct. Holy Land Found. for Relief & Dev. v.
Ashcroft, 333 F.3d 156, 163 (D.C. Cir. 2003) (―There is no First Amendment right or
any other constitutional right to support terrorists.‖); see also Brown v. Hartlage,
456 U.S. 45, 55 (1982) (―Although agreements to engage in illegal conduct
undoubtedly possess some element of association, the State may ban such illegal
agreements without trenching on any right of association protected by the First
Amendment.‖); Kleindienst v. Mandel, 408 U.S. 753, 767 (1972) (rejecting First
Amendment claims by Americans wishing to associate with foreign journalist who
48
had been denied visa). This Court should reject Borne‘s constitutional challenge
based on her First Amendment right of association.
CONCLUSION
This Court should affirm the judgment of the United States Court of Appeals
for the Fourteenth Circuit.
Respectfully submitted,
______________________________
ATTORNEYS FOR RESPONDENT
49
APPENDIX TABLE OF CONTENTS
Page
APPENDIX ―A‖:
CONSTITUTIONAL PROVISIONS ...................................................... A-1
APPENDIX ―B‖:
STATUTORY PROVISIONS ............................................................... B-1
APPENDIX “A”
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. I
Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the press; or of
the right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.
U.S. Const. amend. XIV
Section 1. All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law, nor deny to any person
within its jurisdiction the equal protection of the laws.
A-1
APPENDIX “B”
STATUTORY PROVISIONS
18 U.S.C. § 2339B. Providing material support or resources to designated
foreign terrorist organizations.
(a) Prohibited activities.
(1) Unlawful conduct. Whoever knowingly provides material support or
resources to a foreign terrorist organization, or attempts or conspires to do so,
shall be fined under this title or imprisoned not more than 20 years, or both,
and, if the death of any person results, shall be imprisoned for any term of years
or for life. To violate this paragraph, a person must have knowledge that the
organization is a designated terrorist organization (as defined in subsection
(g)(6)), that the organization has engaged or engages in terrorist activity (as
defined in section 212(a)(3)(B) of the Immigration and Nationality Act [8 U.S.C.
§ 1182(a)(3)(B)]), or that the organization has engaged or engages in terrorism
(as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal
Years 1988 and 1989 [22 U.S.C. § 2656f(d)(2)]).
(2) Financial institutions. Except as authorized by the Secretary, any
financial institution that becomes aware that it has possession of, or control
over, any funds in which a foreign terrorist organization, or its agent, has an
interest, shall
(A) retain possession of, or maintain control over, such funds; and
(B) report to the Secretary the existence of such funds in accordance with
regulations issued by the Secretary.
(b) Civil penalty. Any financial institution that knowingly fails to comply with
subsection (a)(2) shall be subject to a civil penalty in an amount that is the greater
of
(A) $50,000 per violation; or
(B) twice the amount of which the financial institution was required under
subsection (a)(2) to retain possession or control.
(c) Injunction. Whenever it appears to the Secretary or the Attorney General that
any person is engaged in, or is about to engage in, any act that constitutes, or would
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constitute, a violation of this section, the Attorney General may initiate civil action
in a district court of the United States to enjoin such violation.
(d) Extraterritorial jurisdiction.
(1) In general. There is jurisdiction over an offense under subsection (a) if
(A) an offender is a national of the United States (as defined in section
101(a)(22) of the Immigration and Nationality Act (8 U.S.C.
§ 1101(a)(22))) or an alien lawfully admitted for permanent residence in
United States (as defined in section 101(a)(2) of the Immigration and
Nationality Act (8 U.S.C. § 1101(a)(20)));
(B) an offender is a stateless person whose habitual residence is in the
United States;
(C) after the conduct required for the offense occurs an offender is brought
into or found in the United States, even if the conduct required for the
offense occurs outside the United States;
(D) the offense occurs in whole or in part within the United States;
(E) the offense occurs in or affects interstate or foreign commerce; or
(F) an offender aids or abets any person over whom jurisdiction exists under
this paragraph in committing an offense under subsection (a) or conspires
with any person over whom jurisdiction exists under this paragraph to
commit an offense under subsection (a)
(2) Extraterritorial jurisdiction. There is extraterritorial Federal jurisdiction
over an offense under this section.
(e) Investigations.
(1) In general. The Attorney General shall conduct any investigation of a
possible violation of this section, or of any license, order, or regulation issued
pursuant to this section.
(2) Coordination with the Department of the Treasury. The Attorney
General shall work in coordination with the Secretary in investigations
relating to
(A) the compliance or noncompliance by a financial institution with the
requirements of subsection (a)(2); and
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(B) civil penalty proceedings authorized under subsection (b).
(3) Referral. Any evidence of a criminal violation of this section arising in the
course of an investigation by the Secretary or any other Federal agency shall
be referred immediately to the Attorney General for further investigation.
The Attorney General shall timely notify the Secretary of any action taken
on referrals from the Secretary, and may refer investigations to the Secretary
for remedial licensing or civil penalty action.
(f) Classified information in civil proceedings brought by the United
States.
(1) Discovery of classified information by defendants.
(A) Request by United States. In any civil proceeding under this section,
upon request made ex parte and in writing by the United States, a court,
upon a sufficient showing, may authorize the United States to
(i) redact specified items of classified information from documents to be
introduced into evidence or made available to the defendant through
discovery under the Federal Rules of Civil Procedure;
(ii) substitute a summary of the information for such classified
documents; or
(iii) substitute a statement admitting relevant facts that the classified
information would tend to prove.
(B) Order granting request. If the court enters an order granting a request
under this paragraph, the entire text of the documents to which the
request relates shall be sealed and preserved in the records of the court to
be made available to the appellate court in the event of an appeal.
(C) Denial of request. If the court enters an order denying a request of the
United States under this paragraph, the United States may take an
immediate, interlocutory appeal in accordance with paragraph (5). For
purposes of such an appeal, the entire text of the documents to which the
request relates, together with any transcripts of arguments made ex parte
to the court in connection therewith, shall be maintained under seal and
delivered to the appellate court.
B-3
(2) Introduction of classified information; precautions by court.
(A) Exhibits. To prevent unnecessary or inadvertent disclosure of classified
information in a civil proceeding brought by the United States under this
section, the United States may petition the court ex parte to admit, in lieu
of classified writings, recordings, or photographs, one or more of the
following:
(i) Copies of items from which classified information has been redacted.
(ii)Stipulations admitting relevant
information would tend to prove.
facts
that
specific
classified
(iii) A declassified summary of the specific classified information.
(B) Determination by court. The court shall grant a request under this
paragraph if the court finds that the redacted item, stipulation, or
summary is sufficient to allow the defendant to prepare a defense.
(3) Taking of trial testimony.
(A) Objection. During the examination of a witness in any civil proceeding
brought by the United States under this subsection, the United States
may object to any question or line of inquiry that may require the witness
to disclose classified information not previously found to be admissible.
(B) Action by court. In determining whether a response is admissible, the
court shall take precautions to guard against the compromise of any
classified information including
(i) permitting the United States to provide the court, ex parte, with a
proffer of the witness‘s response to the question or line of inquiry; and
(ii) requiring the defendant to provide the court with a proffer of the
nature of the information that the defendant seeks to elicit.
(C) Obligation of defendant. In any civil proceeding under this section, it
shall be the defendant‘s obligation to establish the relevant and
materiality of any classified information sought to be introduced.
(4) Appeal. If the court enters an order denying a request of the United States
under this subsection, the United States may take an immediate
interlocutory appeal in accordance with paragraph (5).
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(5) Interlocutory appeal.
(A) Subject of appeal. An interlocutory appeal by the United States shall lie
to a court of appeals from a decision or order of a district court.
(i) authorizing the disclosure of classified information;
(ii) imposing sanctions for nondisclosure of classified information; or
(iii) refusing a protective order sought by the United States to prevent
the disclosure of classified information.
(B) Expedited consideration.
(i) In general. An appeal taken pursuant to this paragraph, either before
or during trial, shall be expedited by the court of appeals.
(ii) Appeals prior to trial. If an appeal is of an order made prior to
trial, an appeal shall be taken not later than 14 days after the decision or
order appealed from, and the trial court shall not commence until the
appeal is resolved.
(iii) Appeals during trial. If an appeal is taken during trial, the trial
court shall adjourn the trial until the appeal is resolved, and the court of
appeals
(I) shall hear argument on such appeal not later than 4 days after the
adjournment of trial, excluding intermediate weekends and holidays;
(II) may dispense with written briefs other than the supporting
materials previously submitted to the trial court;
(III) shall render its decision not later than 4 days after argument on
appeal, excluding intermediate weekends and holidays; and
(IV) may dispense with the issuance of a written opinion in rendering
its decision.
(C) Effect of ruling. An interlocutory appeal and decision shall not affect
the right of the defendant, in a subsequent appeal from a final judgment,
to claim as error reversal by the trial court on remand of a ruling
appealed during trial.
B-5
(6) Construction. Nothing in this subsection shall prevent the United States
from seeking protective orders or asserting privileges ordinarily available to
the United States to protect against the disclosure of classified information,
including the invocation of the military and State secrets privilege.
(g) Definitions. As used in this section.
(1) the term ―classified information‖ has the meaning given that term in section
1(a) of the Classified Information Procedures Act (18 U.S.C. App.);
(2) the term ―financial institution‖ has the same meaning as in section 5312(a)(2)
of title 31, United States Code;
(3) the term ―funds‖ includes coin or currency of the United States or any other
country, traveler‘s checks, personal checks, bank checks, money orders,
stocks, bonds, debentures, drafts, letters of credit, any other negotiable
instrument, and any electronic representation of any of the foregoing;
(4) the term ―material support or resources‖ has the same meaning given that
term in section 2339A (including the definitions of ―training‖ and ―expert
advice or assistance‖ in that section);
(5) the term ―Secretary‖ means the Secretary of the Treasury; and
(6) the term ―terrorist organization‖ means an organization designated as a
terrorist organization under section 219 of the Immigration and Nationality
Act
(h) Provision of personnel. No person may be prosecuted under this section in
connection with the term ―personnel‖ unless that person has knowingly provided,
attempted to provide, or conspired to provide a foreign terrorist organization with 1
or more individuals (who may be or include himself) to work under that terrorist
organization‘s direction or control or to organize, manage, supervise, or otherwise
direct the operation of that organization. Individuals who act entirely independently
of the foreign terrorist organization to advance its goals or objectives shall not be
considered to be working under the foreign terrorist organization‘s direction and
control.
(i) Rule of construction. Nothing in the section shall be construed or applied so
as to abridge the exercise of rights guaranteed under the First Amendment to the
Constitution of the United States.
(j) Exception. No person may prosecuted under this section in connection with the
term ―personnel,‖ ―training,‖ or ―expert advice or assistance‖ if the provision of that
B-6
material support or resources to a foreign terrorist organization was approved by
the Secretary of States with the concurrence of the Attorney General. The Secretary
of State may not approve the provision of any material support that may be used to
carry out the terrorist activity (as defined in section 212(a)(3)(B)(iii) of the
Immigration and Nationality Act).
INTERNAL REVENUE CODE:
26 U.S.C. § 5845. Definitions
For the purpose of this chapter:
(f) Destructive Device. The term ‗destructive device‘ means
(1) any explosive, incendiary, or poison gas
(A) bomb,
(B) grenade
(C) rocket having a propellant charge of more than one-quarter ounce,
(D) missile having an explosive or incendiary charge of more than onequarter 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 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 signaling, pyrotechnic, line
B-7
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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