No. 15-1359
In the Supreme Court of the United States
EMMALINE BORNE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
On Writ of Certiorari
to the United States Court of Appeals
for the Fourteenth Circuit
BRIEF FOR RESPONDENT
TEAM 87
Counsel for Respondent
QUESTIONS PRESENTED
I.
Under 26 U.S.C. § 5845(f)(3), did the Fourteenth Circuit Court of Appeals
properly uphold Emmaline Borne’s conviction for designing firearm parts on
a 3D printer or intending to convert the combination of items in her
possession into a destructive device?
II.
Under 18 U.S.C. § 2339B, did the Fourteenth Circuit Court of Appeals
properly uphold Emmaline Borne’s conviction for attempting to provide
material support and resources in the form of potentially dangerous computer
code to a member of the foreign terrorist organization Dixie Millions?
TABLE OF CONTENTS
Page(s)
QUESTIONS PRESENTED ................................................................................ i
TABLE OF AUTHORITIES ................................................................................v
OPINIONS BELOW .......................................................................................... ix
STATEMENT OF JURIDICTION .................................................................... ix
STATUTORY PROVISIONS INVOLVED ........................................................ ix
STATEMENT OF THE CASE .............................................................................1
I.
Statement of Facts ....................................................................................1
II.
Nature of the Proceedings ........................................................................6
SUMMARY OF THE ARGUMENT ....................................................................8
ARGUMENT ......................................................................................................11
I.
THE FOURTEENTH CIRCUIT CORRECTLY CHARGED MS.
BORNE UNDER 26 U.S.C. § 5845(f)(3) BECAUSE THE
COMBINATION OF ITEMS IN HER POSSESSION WERE
DESIGNED OR INTENDED TO BE CONVERTED AS A
DESTRUCTIVE DEVICE .......................................................................11
A. This Court should apply the mixed standard because
standing alone, the objective and subjective standards do not
further the congressional intent of the National Firearms Act .......14
1. The application of a purely objective standard would allow
Ms. Borne to escape culpability where ill intentions were
clearly construed ..........................................................................15
2. The application of a purely subjective standard would
allow Ms. Borne to escape culpability where the
combinations of parts are capable of categorization as a
destructive device .........................................................................17
B. Under 26 U.S.C. § 5845(f)(3), an application of the mixed
standard demonstrates how items in a defendant’s possession
prove intent to design and fabricate a destructive device................18
1. This Court should first consider the objective intent of the
device to determine whether the items have legitimate
social value and can be readily assembled ..................................20
a. The gun plans and plastic filament formula do not
have a legitimate social value ................................................21
b. The hairspray, matches, and 3D-printed cylinder can
be readily assembled, but individually have a
legitimate social purpose ........................................................23
2. If this Court finds that the items had both a legitimate
and unlawful purpose, Ms. Borne’s actions and the
surrounding circumstances prove her subjective intent to
create a destructive device ...........................................................26
II.
THIS COURT SHOULD AFFIRM THE FOURTEENTH
CIRCUIT’S HOLDING THAT MS. BORNE WAS PROPERLY
CONVICTED UNDER 18 U.S.C § 2339B BECAUSE SHE
ATTEMPTED TO PROVIDE MATERIAL SUPPORT AND
RESOURCES TO A KNOWN MEMBER OF A FOREIGN
TERRORIST ORGANIZATION .............................................................30
A. Specific intent to further the goals of a foreign terrorist
organization is not required under § 2339B .....................................33
1. Ms. Borne’s speech and conduct satisfies the intent
requirement under § 2339B regardless of its intended use ........33
2. Ms. Borne’s speech and conduct satisfies the requirement
of attempting to provide material support or resources
under § 2339B...............................................................................36
a. Ms. Borne’s speech satisfies the mens rea element of
attempt ....................................................................................37
b. A substantial step was taken towards attempt .....................39
B. The material support statute's restrictions on providing aid
to known terrorist organizations does not violate the First
Amendment or Fifth Amendment .....................................................41
1. § 2339B is not overbroad as applied to Ms. Borne ......................42
2. The coordination requirement of § 2339B was satisfied.............44
3. § 2339B is not vague as applied to Ms. Borne.............................45
CONCLUSION...................................................................................................47
APPENDIX.........................................................................................................49
TABLE OF AUTHORITIES
Page(s)
United States Supreme Court
Broadrick v. Oklahoma,
413 U.S. 601 (1973) ......................................................................................41
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) .................................................................................. passim
Jackson v. Virginia,
443 U.S. 307 (1979) ......................................................................................11
United States v. Williams,
553 U.S. 285 (2008) ......................................................................................46
Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489 (1982) ......................................................................................41
Virginia v. Hicks,
539 U.S. 113 (2003) ......................................................................................41
Ward v. Rock Against Racism,
491 U.S. 781 (1989) ......................................................................................46
Wisconsin v. Mitchell,
508 U.S. 476 (1993) ......................................................................................37
United States Circuit Courts
Nat’l Council of Resistance of Iran v. Dep’t of State,
251 F.3d 192 (D.C. Cir. 2001) ......................................................................35
United States v. Adams,
560 Fed. App’x 552 (6th Cir. 2014) ..............................................................11
United States v. Augustin,
661 F.3d 1105 (11th Cir. 2011) ....................................................................35
United States v. El-Mezain,
664 F.3d 467 (5th Cir. 2011) ........................................................................35
United States v. Farhane,
634 F.3d 127 (2d Cir. 2011) .................................................................. passim
United States v. Fredman,
833 F.2d 837 (9th Cir. 1987) ...................................................... 15, 17, 18, 28
United States v. Hammond,
371 F.3d 776 (11th Cir. 2004) ......................................................................24
United States v. Johnson,
152 F.3d 618 (7th Cir. 1998) ................................................................ passim
United States v. Kassar,
660 F.3d 108 (2d Cir. 2011) ...........................................................................34
United States v. Kaziu,
559 Fed. App’x 32 (2d Cir. 2014) ................................................. 11, 37, 38, 39
United States v. Loud Hawk,
628 F.2d 1139 (9th Cir. 1979) ........................................................................28
United States v. Malone,
546 F.2d 1182 (5th Cir. 1977) ........................................................................24
United States v. Manley,
632 F.2d 978 (2d Cir. 1980) ...........................................................................39
United States v. Mehanna,
735 F.3d 32 (1st Cir. 2013) ................................................................ 39, 40, 44
United States v. Oba,
448 F.2d 892 (9th Cir. 1971) .............................................................. 13, 17, 26
United States v. Posnjak,
457 F.2d 1110 (2d Cir. 1972) ................................................................. passim
United States v. Saunders,
166 F.3d 907 (7th Cir. 1999)....................................................................24, 27
United States v. Spoerke,
568 F.3d 1236 (11th Cir. 2009) ....................................................................22
United States v. Tankersley,
492 F.2d 962 (7th Cir. 1974) ..................................................................25, 26
United States v. Urban,
140 F.3d 229 (3d Cir. 1998) ..........................................................................21
United States v. Uzenski,
434 F.3d 690 (4th Cir. 2006) ........................................................................20
Universal City Studios, Inc. v. Corley,
273 F.3d 429 (2d Cir. 2001) ..........................................................................43
United States District Courts
Abecassis v. Wyatt,
7 F. Supp. 3d 668 (S.D. Tex. 2014) ........................................................33, 34
Ballew v. United States,
389 F. Supp. 47 (D. Md. 1975) .....................................................................27
In re Appl. of the United States for an Order Pursuant to 18 U.S.C. § 2703(d),
830 F. Supp. 2d 114 (E.D. Va. 2011) ............................................................39
Strauss v. Credit Lyonnais, S.A.,
No. CV-06-0702 (CPS), 2006 WL 2862704 (E.D.N.Y. Oct. 5, 2006)............35
United States v. Al-Arian,
308 F. Supp. 2d 1322 (M.D. Fla. 2004) ........................................................31
United States v. Davis,
313 F. Supp. 710 (D. Conn. 1970) ..........................................................16, 19
United States v. Marzook,
383 F. Supp. 2d 1056 (N.D. Ill. 2005) ....................................................31, 34
United States v. Nagi,
No. 15–MJ–2122, 2015 WL 4611914 (W.D.N.Y. July 31, 2015) .................38
United States v. Worstine,
808 F. Supp. 663 (N.D. Ind. 1992) ...............................................................29
Constitutional Provisions and Statutes
U.S. Const. amend. I .................................................................................. passim
U.S. Const. amend. V ................................................................................. passim
8 U.S.C.A. § 1189(b)(1) (West 2015) ............................................................30, 36
18 U.S.C. § 2339A (2000) ....................................................................... 30, 31, 32
18 U.S.C. § 2339B (2000) .............................................................................31, 32
18 U.S.C. § 2339A (2012) .............................................................................33, 46
18 U.S.C. § 2339B (2012) ........................................................................... passim
22 U.S.C.A. § 2656f (West 2015) .......................................................................33
26 U.S.C. § 5845 (2012) ............................................................................. passim
Legislative Material
Intelligence Reform and Terrorist Prevention Act of 2004, Pub. L. No.
108–458, § 6603, 118 Stat. 3762–3764 (2004) ................................ 30, 31, 32, 46
Other Authorities
Andrew V. Moshirnia, Valuing Speech and Open Source Intelligence in
the Face of Judicial Deference, 4 Harv. Nat’l Sec. J. 385 (2013) .....................44
Black’s Law Dictionary (9th ed. 2014) ..............................................................34
Elliot Buckman, Just a Soul Whose Intentions Are Good? The
Relevance of a Defendant's Subjective Intent in Defining a
"Destructive Device" Under the National Firearms Act, 79 Fordham L.
Rev. 563 (2010).............................................................................................11, 12
John Rogers, Note, Bombs, Borders, and Boarding: Combatting
International Terrorism at United States Airports and the Fourth
Amendment, 20 Suffolk Transnat'l L. Rev. 501 (1997) ....................................29
Katherine R. Zerwas, No Strict Scrutiny—The Court’s Deferential
Position on Material Support to Terrorism in Holder v. Humanitarian
Law Project, 37 Wm. Mitchell L. Rev. 5337 (2011) ..........................................30
Kristen A. Nardolillo, Note, Dangerous Minds: The National Firearms
Act and Determining Culpability for Making and Possessing
Destructive Devices, 42 Rutgers L.J. 511 (2011).................................. 19, 20, 26
OPINIONS BELOW
The United States District Court for the South East District of New Tejas
convicted Ms. Borne under 26 U.S.C. § 5845(f)(3) (2012) and 18 U.S.C. § 2339B
(2012). The record does not explicitly indicate that the district court issued a
written opinion. R. at 2.
The United States Court of Appeals for the Fourteenth Circuit affirmed the
convictions of Ms. Borne for creating a destructive device and providing material
support and resources to a foreign terrorist organization. The opinion of the
Fourteenth Circuit is reproduced on pages 2–27 of the transcript of the record.
STATEMENT OF JURISDICTION
The district court had federal question jurisdiction to rule on this case in
accordance with 28 U.S.C. § 1331 (2012) and because this case arose under two
federal statutes, 26 U.S.C. § 5845 (2012) and 18 U.S.C. § 2339B (2012). The district
court convicted and sentenced the Petitioner, and the Fourteenth Circuit Court of
Appeals affirmed the conviction under appellate jurisdiction pursuant to 28 U.S.C. §
1291 (2012). Emmaline Borne filed and was granted a writ of certiorari. This Court
has appellate jurisdiction in accordance with 28 U.S.C. § 1254 (2012).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The relevant constitutional provisions that this case involves are the First
and Fifth Amendment of the United States Constitution. The relevant statutory
provisions that this case involves are 26 U.S.C. § 5845 and 18 U.S.C. § 2339B and
2339A. The pertinent sections of these provisions are produced in the Appendix.
STATEMENT OF THE CASE
I.
Statement of Facts
The “Technical Promise” Program
Emmaline Borne and Fiona Triton were departing high school seniors in
October of 2011; relatively new friends who were eager to begin their study abroad
program in the European nation of Azran. R. at 2. The decision to take part in the
study abroad program, known as “Technical Promise,” was driven by a common
thread, which was their physics teacher, Mrs. Adalida Ascot. R. at 2–3. Mrs. Ascot
was not only a teacher, but also one of the original members of the Technical
Promise program and over time became a personal mentor to both Ms. Borne and
Ms. Triton. R. at 3. The relationship between them grew strong, particularly
between Mrs. Ascot and Ms. Borne, who shared a common interest in computer
programming and a war driven computer game called “Wars of Masquerade.” R. at
3. As the school year continued, Mrs. Ascot and Ms. Borne continued to meet oneon-one on a regular basis to discuss their skills in computer programming,
particularly a programming skill known as C++. R. at 4.
The 3D Printer
During the last months of their high school career, Ms. Borne became
intrigued with a state of the art 3D printer that Ms. Triton’s father had acquired. R.
at 6–7. With her expertise in computer programming, Ms. Borne was eager to assist
Mr. Triton with clearing his 3D printing system of any flaws. R. at 7. With the help
of Mrs. Ascot, Ms. Borne quickly debugged the system and created the perfect code
for manufacturing a flawless 3D cylinder from high-grade filament. R. at 7–8.
Clive Allen and “Dixie Millions”
During their work on the printing code, in April of 2012, Ms. Borne and Mrs.
Ascot began discussing the recent news of a system hack of their favorite computer
war game, which illegally revealed a list of all usernames. R. at 8. A leader of a
“hacktivist” group, known as Dixie Millions, headed the source of this cyber hack. R.
at 8. This particular leader, known as Clive Allen, was responsible for hacking
numerous databases across the United States, including the NSA, CIA, FBI, and
several other federal and foreign entities. R. at 5. As a result of these actions, the
Dixie Millions were labeled by the U.S. Secretary of State, as a foreign terrorist
organization (FTO). R. at 5. Soon after, Clive Allen fled the United States to Azran,
where he was granted complete asylum after revealing secret NSA communications.
R. at 6. However, Clive Allen was only the “Millions” half of Dixie Millions, and the
NSA had not yet discovered the identity of the remaining members. R. at 6. As the
conversation about the 3D code continued, Mrs. Ascot explained her fascination
with Dixie Millions and insinuated that the “Dixie” half of the group must be
extremely clever to have escaped capture for so long. R. at 8. When the printing
code was complete, Ms. Borne gave a copy to Mrs. Ascot for her own personal use. R.
at 8.
The 3D Cylinder and Firearm Plans
In May of 2012, Ms. Borne and Mr. Triton successfully printed a perfectly
symmetrical 3D cylinder. R. at 9. Thrilled with the success of the machine, Mr.
Triton also discovered plans on the Internet to manufacture firearms on his 3D
machine. R. at 9. Mr. Triton downloaded the firearm plans to a gold colored USB
stick. R. at 9.
Ms. Borne’s Plan to Meet Clive Allen
As the departure date for the study abroad program grew near, Ms. Borne
suggested, by further recommendation from Mrs. Ascot, that she take a copy of the
code and 3D cylinder with her to Azran. R. at 9. And despite Mr. Triton’s wishes,
Ms. Triton downloaded the plans for the high-grade filament onto a USB drive
shaped like a cartoon robot. R. at 11. In anticipation of their trip to Azran, Ms.
Borne began to research the recent activity of Clive Allen and set her goals on
becoming a “white hat hacker,” a term commonly associated with Internet terrorist
organizations, such as Dixie Millions. R. at 11. Ms. Borne aspired to locate and meet
with Clive Allen to seek advice on becoming a white hat hacker. R. at 11. Ms.
Borne’s research on Clive Allen became an obsession and she began to make a
spreadsheet of all known locations that Clive Allen had recently been spotted in
Azran. R. at 11–12. Included in each location was a detailed description of the
disguise that Clive Allen wore, including clothing and wigs. R. at 12. Ms. Borne
created data that deduced a pattern of his movements, ultimately allowing her to
pinpoint his future location to the exact date, time, and location. R. at 12.
Specifically, on June 5, 2012, just one day after her expected arrival in Azran, Clive
Allen was set to be at a café located on the study abroad campus where she would
be staying. R. at 12. Ms. Borne set a reminder on her smartphone, which stated
“Meet Clive Allen at Café” for June 5, 2012. R. at 12.
Departing for Azran
On June 3, 2012, Ms. Triton and Ms. Borne packed their luggage for the trip
to Azran. R. at 12. Ms. Triton included in her luggage, the robot shaped USB drive,
which contained the code to her father’s high-grade plastic filament used for the 3D
printer. R. at 12. Ms. Borne also packed (1) the purple USB drive, containing the 3D
cylinder code; (2) a perfectly printed 3D cylinder; (3) the spreadsheet containing
Clive Allen’s known whereabouts; (4) a printed picture of Clive Allen’s appearance,
as depicted through his disguises; (5) matches; and (6) an 11 ounce can of hairspray.
R. at 12–13.
On the morning of June 4, 2012, Mr. Triton drove Ms. Borne and Ms. Triton
to the airport. R. at 13. During the car ride, Mr. Triton inserted the gold-colored
USB drive into the radio, which contained the 3D firearm plans, but also music that
Mr. Triton downloaded for the girls to take on their trip. R. at 13. As the music from
the gold USB drive played loudly, Mr. Triton rolled through a stop sign and was
subsequently pulled over by the Harrisburg Police Department (HPD). R. at 14.
Officer Smith, a fifteen-year veteran with HPD, performed a routine traffic stop
where Mr. Triton explained that Ms. Triton and Ms. Borne were headed to Azran.
R. at 14. During a records search, Officer Smith discovered that Mr. Triton had an
outstanding warrant for his arrest, due to unpaid traffic violations, and Officer
Smith placed Mr. Triton under arrest. R. at 14.
The Arrest of Ms. Borne and Ms. Triton
While making arrangements to transport Ms. Borne and Ms. Triton to the
Airport, Officer Smith stood near their car in an attempt to calm the situation. R. at
15. Moments later, Ms. Borne’s smartphone chimed an alert sound gaining Officer
Smith’s attention, and he clearly saw the words “Meet Clive Allen at Café” on her
screen. R. at 15. Officer Smith was startled by what he had read due to a recent
memo HPD received from the FBI that Clive Allen was believed to have an
associate in the Harrisburg area. R. at 15. Officer Smith quickly mirandized Ms.
Borne and Ms. Triton and placed them under arrest based on suspicion of terrorist
activity. R. at 16. HPD quickly obtained search warrants for the contents of the
entire vehicle, including both sets of luggage. R. at 16. HPD uncovered all contents
of the luggage and the gold colored USB drive in the radio, which confirmed the
storage of plans to create 3D printed firearms. R. at 16. The FBI soon became
involved in the case and expanded the search to all known contacts of both Ms.
Borne and Ms. Triton. R. at 16. In an attempt to locate their physics teacher, Mrs.
Ascot, the FBI confirmed that she quit her job, quickly fled her home, and had not
yet been located. R. at 16.
The United States Attorney subsequently filed charges against Ms. Borne
and Mr. and Ms. Triton. R. at 16. Both Mr. Triton and Ms. Triton, on advice of their
attorney, agreed to cooperate with all investigations in exchange for a plea bargain.
R. at 16. Ms. Borne, however, refused to cooperate and continued to face criminal
charges against the State of New Tejas.
II.
Nature of the Proceedings
The District Court
At trial, the prosecution offered evidence that the plastic filament formula
found on the robot USB drive combined with the gun plans on the golden USB drive
would create a device that appeared to fire a bullet, yet subsequent testing proved
that it would always blow up, causing substantial bodily harm or death. R. at 18.
Further, a ballistics expert testified that the contents of Ms. Borne’s luggage,
including the 3D cylinder, matches, hairspray, and other miscellaneous items could
be used to create a bomb, with only limited knowledge that a “bright teenager”
could easily obtain on the Internet. R. at 18.
Secondly, the prosecution offered testimony of FBI agents who specialized in
monitoring Internet hackers. R. at 17. The agents testified that Ms. Borne was
actively searching Internet databases used by hackers, known as the “Darknet,” to
seek out several different hacktivist groups, including Dixie Millions. R. at 17.
Additionally, FBI agents testified that they were nearly certain that the physics
teacher, Mrs. Ascot, was the “Dixie” half of Dixie Millions, due to a string of her
past students who were mistakenly arrested for internet hacking. R. at 17. Further,
evidence of suspicious activity on Ms. Borne’s account on the social media platform,
Twitter, were submitted to the court, specifically a tweet that stated “[w]ith one
wish, I wish all guns would blow up.#guncontrol.” R. at 18. Also, evidence that Ms.
Borne was actively re-tweeting articles that were identified as pro-Dixie Millions
were submitted to the court. R. at 18.
Subsequently, Ms. Borne was found guilty under 26 U.S.C. § 5845(f)(3) and
18 U.S.C. § 2339B. R. at 18.
The Court of Appeals
Borne filed an appeal of the convictions in the United States District Court of
Appeals for the Fourteenth Circuit. The Fourteenth Circuit affirmed the convictions
on all grounds. R. at 24.
SUMMARY OF THE ARGUMENT
The Fourteenth Circuit correctly held that Emmaline Borne was properly
convicted for designing and fabricating a destructive device and attempting to
provide material support to a foreign terrorist organization. This Court should
affirm the Fourteenth Circuit’s decision for two reasons. First, the combination of
items in Ms. Borne’s possession were designed as a destructive device and her
actions prove that the items were intended for use as a destructive device. Second,
Ms. Borne knew that Clive Allen, a member of the foreign terrorist organization
Dixie Millions engaged in acts of terrorism, and she attempted to deliver specialized
computer code to Mr. Allen oversees.
I.
Destructive Device
This Court should apply the mixed standard in assessing Ms. Borne’s
conviction because it furthers the congressional intent behind the National
Firearms Act. The subjective and objective standards are too narrow and will allow
defendants to escape culpability when the defendants explicitly express ill
intentions in using the device or when the combination of items are clearly capable
of being categorized as a destructive device. Adopting the mixed standard allows
courts to analyze both the objective and subjective intent under a two prong
analysis.
The first prong of the mixed standard analyzes the objective intent of the
device to determine whether the items can be readily assembled or has any
legitimate social purpose. The gun plan and plastic filament formula found on the
USB drives have no legitimate social purpose and distinctly meet the requirements
of a destructive device under 26 U.S.C. § 5845 because the items became an
explosive every time it expelled a bullet. The combination of the hairspray, matches,
3D-printed cylinder, and other miscellaneous items found in Ms. Borne’s luggage
create a bomb and can be readily assembled. However, each individual item has a
legitimate social purpose thus the analysis should continue to the second prong of
the mixed standard.
In analyzing the second prong of the mixed standard, which focuses on Ms.
Borne’s subjective intent, this Court will find that Ms. Borne’s actions and the
surrounding circumstances prove she intended to create a destructive device. Ms.
Borne made suspicious statements on her Twitter account showing her support to
the foreign terrorist organization, Dixie Millions, and took positive steps towards
creating the destructive device by attempting to enter an airport with all of the
necessary items she needed. Therefore, this Court should uphold Ms. Borne’s
conviction because the circumstances show that she intended to create a destructive
device in violation of 26 U.S.C. § 5845(f)(3).
II.
Material Support or Resources
A conviction for attempting to provide material support or resources to a
foreign terrorist organization does not require a specific intent to further any
terrorist activity by that organization. Because Ms. Borne’s speech and conduct
prove that she knew Clive Allen was a member of Dixie Millions and engaged in
terrorism, this Court should find her attempt to provide specialized computer code
was material support to Dixie Millions, notwithstanding its alleged benign purpose.
Any support or resource provided to a foreign terrorist organization lends to
its legitimacy and its potential to profit financially, allowing the terrorist
organization to further engage in terrorist activities. Congress foresaw this problem
and intentionally drafted 18 U.S.C. § 2339B without a specific intent requirement.
Under the material support statute, Ms. Borne only needed to know that Dixie
Millions had been deemed a foreign terrorist organization by the Secretary of State
or engaged in some form of terrorist activity or terrorism. After satisfying this lower
standard of knowledge, any person that either provides, conspires to provide, or
attempts to provide the foreign terrorist organization with any material support or
resource is liable under 18 U.S.C. § 2339B. Here, Ms. Borne attempted to provide an
integral member of Dixie Millions with a highly specialized computer code that
could potentially support Dixie Millions in its terroristic efforts.
The material support at issue in this case is the speech of Ms. Borne in the
form of computer code. However, this Court has upheld the constitutionality of the
material support statute when the material support at issue is content-based
speech. Under this Court’s precedent, 18 U.S.C. § 2339B does not infringe on Ms.
Borne’s right of association or independent political advocacy. This Court has also
held that the prohibitions mandated under the material support statute provide
clear and definitive notice to persons as what constitutes material support and
resources.
In sum, this Court should affirm the Fourteenth Circuit’s decision upholding
Ms. Borne’s convictions under 26 U.S.C. § 5845(f)(3) and 18 U.S.C. § 2339B.
ARGUMENT
This Court should affirm the decision of the Fourteenth Circuit Court of
Appeals. Under 26 U.S.C. § 5845, the appropriate standard of review is de novo.
United States v. Adams, 560 Fed. App’x 552, 553 (6th Cir. 2014). In reviewing
whether evidence was sufficient to uphold convictions, the appropriate standard of
review is de novo; however, this Court should “view the evidence in the light most
favorable to the government and affirm if ‘any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.’” United States v.
Kaziu, 559 Fed. App’x 32, 35 (2d Cir. 2014) (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979) (emphasis in original)).
Under 18 U.S.C. § 2339B, this Court should apply the “rigorous scrutiny”
standard adopted in Holder v. Humanitarian Law Project, where this Court noted
that “Congress and the Executive are uniquely positioned to make principled
distinctions between activities that will further terrorist conduct.” 561 U.S. 1, 28–35
(2010).
I. THE FOURTEENTH CIRCUIT CORRECTLY CHARGED MS. BORNE
UNDER 26 U.S.C. § 5845(f)(3) BECAUSE THE COMBINATION OF ITEMS
IN HER POSSESSION WERE DESIGNED OR INTENDED TO BE
CONVERTED AS A DESTRUCTIVE DEVICE
Enacted in 1938, and originally intended to free the American streets of gun
slinging gangsters, the National Firearms Act (“NFA” or the “Act”) was the first
attempt to formally regulate firearms by the American government. Elliot
Buckman, Just a Soul Whose Intentions Are Good? The Relevance of a Defendant's
Subjective Intent in Defining a "Destructive Device" Under the National Firearms
Act, 79 Fordham L. Rev. 563, 570 (2010). Although originally intended to regulate
machinegun-type weapons, the act was amended in 1968, which distinctly placed
the term “destructive device” into a separate and distinct category. Id. The term
“destructive device” was originally included in the definition of a “firearm” under
the NFA; however, with time, that definition became unsatisfactory and the Act was
modified to provide a more thorough definition. Id. The separation was an effort to
prevent unassembled devices capable of being readily assembled into a destructive
device from escaping culpability under the Act.
The Act provides three subparagraphs to define “destructive device.” The first
includes any military type weapon that could be considered destructive. 26 U.S.C. §
5845(f)(1) (2012). The second includes any weapon that can be readily converted to
expel projectiles. § 5845(f)(2). Finally, the third subparagraph, which is currently at
issue, covers “any combination of parts either designed or intended for use in
converting any device into a destructive device in subparagraphs (1) and (2), and
from which a destructive device may be readily assembled.” § 5845(f)(3) (emphasis
added). The first and second subparagraph provided within the Act do not include a
mens rea component, thus an objective, strict liability application is appropriate.
However, when analyzing the third component of the Act, it is unclear whether the
same approach should be taken because the statutory language of “designed” or
“intended for use” creates ambiguity. This has led to disagreements amongst courts
as to which approach to adopt when analyzing this subparagraph of the Act.
Consequently, courts have been split between the subjective, objective, and
mixed standard. Few circuits have adopted the subjective standard, which solely
looks at the subjective intent of the defendant when creating the device, to
determine whether the item was intended for use as a destructive device. See
United States v. Oba, 448 F.2d 892, 894 (9th Cir. 1971) (holding that the
defendant’s admission that his intent was to use the device to bomb and destroy the
property of others eliminated the court’s need to determine whether the items had
any objective use). Other circuits have adopted the objective standard, which
considers only whether the device or unassembled components are themselves
destructive or can be readily assembled to become a destructive device. See United
States v. Posnjak, 457 F.2d 1110, 1121 (2d Cir. 1972) (holding that commercial
dynamite did not fall within the first or second subparagraphs of the Act and was
therefore not a destructive device, even when the defendant stated his intent to use
the dynamite to harm people). Finally, there is the mixed standard, which holds
that “when the components are susceptible to both innocent and antisocial
purposes, it is necessary to determine the subjective intent of the defendant in
gathering them.” United States v. Johnson, 152 F.3d 618, 625 (7th Cir. 1998).
Adopting the mixed standard allows courts to apply both the objective and
subjective standards, in sequence, thereby conforming to the overall purpose of the
statutory scheme and congressional intent of the Act. Thus, this Court should
affirm the Fourteenth Circuit’s holding and adopt the mixed standard when
assessing Ms. Borne’s conviction.
A. This Court should apply the mixed standard because standing alone, the
objective and subjective standards do not further the congressional intent
of the National Firearms Act
Senator Thomas Dodd, known famously for the momentum he provided to
enact gun control legislation in the early 1960’s, laid the foundation for the Gun
Control Act of 1968 (GCA). William J. Vizzard, The Gun Control Act of 1968, 18 St.
Louis U. Pub. L. Rev. 79, 80 (1999). The GCA was proposed in 1961 to prevent
domestic terrorism; however, it was not until President John F. Kennedy and
presidential candidate Robert Kennedy were assassinated that the Act went into
effect. Id. at 83. The GCA did not replace the National Firearms Act, rather it made
additions to the NFA. Id. The most substantial change to the NFA was the addition
of the term “destructive device.” Id. Congress specifically included the term
“destructive device” in order to prevent the unregistered possession and
transportation of items that could be used to create an explosive device. Id. More
specifically, the plain language of the NFA makes it clear that Congress intended
the language “designed or intended” to be applied in conjunction, rather than
separately. Johnson, 152 F.3d at 625. Although Congress had the opportunity to
revise subparagraph (f)(1) and (f)(2), the congressional record shows that the term
“intended,” which suggests a subjective element, was only added to (f)(3) in order to
avoid ambiguity. Vizzard, supra, at 81.
The ambiguity created by the term “destructive device” is created by two
distinct situations, which are properly handled by the mixed standard; yet create
pitfalls if left to a single objective or subjective standard. The first situation that
arises is when a defendant possesses a lawful object, such as construction dynamite,
yet intends to use it to cause harm. Posnjak, 457 F.2d at 1112. The second situation
arises when the defendant explicitly states he has no ill intentions but the
combination of parts clearly appear to be designed as a destructive device. United
States v. Fredman, 833 F.2d 837, 840 (9th Cir. 1987). An adoption of the mixed
standard can remove these ambiguities and allows courts to analyze both standards
in sequence. Thus, this Court should adopt the mixed standard; thereby, furthering
the congressional intent of the National Firearms Act.
1. The application of a purely objective standard would allow Ms. Borne
to escape culpability where ill intentions were clearly construed
Controversial results, which have arisen by a court’s use of a purely objective
standard, does not align with the clear intent of the NFA. In Posnjak, the defendant
was legally in possession of over 4,000 sticks of construction grade dynamite, wire,
and blasting caps. 457 F.2d at 1112. However, an undercover agent for the Bureau
of Alcohol, Tobacco, and Firearms (ATF) approached the defendant to purchase the
dynamite, explaining his intentions to use the dynamite to blow up buildings and
people. Id. The defendant sold the items to the ATF agent and was subsequently
arrested and charged for possession of a destructive device under 26 U.S.C.
5845(f)(3). Id. As one of the first circuits to address the newly enacted NFA, the
Second Circuit applied a purely objective standard, finding the defendant not guilty
because the subjective intent of the defendant was irrelevant. Id. at 1116. This
decision sparked much controversy among the federal circuits and created an
obvious fault in the use of a purely objective standard.
However, in Posnjak, the court recognized the need for a two-part mixed
analysis when the items in question have both a legitimate and antisocial purpose.
The court stated that in some instances the “intention to convert a device into an
article listed in the statute will be relevant.” Id. at 1119. The court referred to
United States v. Davis, where the defendant was found in possession of normal
household items, including empty glass bottles, rags, and gasoline. 313 F. Supp.
710, 711 (D. Conn. 1970). In Davis, decided only two years after the term
“destructive device” was added to the NFA, the court demonstrated a two-part
analysis. Id. at 713. First, the court determined that the items in the defendant’s
possession could have both a legitimate and unlawful purpose, depending on the
intentions of the defendant. Id. The defendant later testified that he intended to
create a “molotov cocktail,” a device commonly used as a hand thrown incendiary
device. Id. In Davis, the court refused to apply a narrowly construed method of
interpretation of the NFA, stating “what Congress meant by the term was an
association of the components of a destructive device, at the same time and place,
capable of being converted into a destructive device.” Id. at 714. Therefore, it would
be improper for the Court to apply a narrowly construed objective standard, when
the congressional intent shows the Act was meant to be interpreted through a twopart analysis of both objective and subjective intent.
2. The application of a purely subjective standard would allow Ms. Borne
to escape culpability where the combinations of parts are capable of
categorization as a destructive device
The purely subjective standard does not properly address the congressional
intent of subparagraph (f)(3), which is to analyze both the “design” and “intent” of
the destructive device. Although rare, instances of an outright admission of ill
intent to use a destructive device for antisocial purposes would satisfy the
requirements of subparagraph (f)(3). See Oba, 448 F.2d at 893 (concluding that
where the defendant clearly stated his intentions to use the device to bomb and
destroy the property of others in his city, the analysis of the objective use of the
bomb was irrelevant). However, where the defendant’s admissions do not give rise
to their intentions to use the device unlawfully, courts should not restrict itself from
analyzing both design and intent.
Where the court refuses to identify both objective and subjective intent of the
device, the outcome will often rear inequitable results when the defendant’s
intentions appear legitimate. In Fredman, the defendant possessed two bundles of
detonator cords, three detonator fuses, and two commercial igniters located in an
open safe. 833 F.2d at 837. The defendant told officials that his intent was to use
the explosive items as commercial blasting components. Id. at 838. The court relied
on a purely subjective analysis in assessing the case and stated that items are not
destructive devices absent proof, beyond a reasonable doubt, that the component
parts were intended for use as a weapon. Id. at 840. Under this reasoning, the court
held that the components were not designed as a destructive device because the
items were unassembled and the defendant did not have the requisite intent to use
such components as a weapon. Id. at 839.
Additionally in Johnson, the defendant possessed various components of a
destructive device, including an assortment of nails, candles, plastic tubing, and a
hacksaw. 152 F.3d at 621. The defendant asserted that he did not design the devices
for use as a weapon but rather created them as a “hoax,” in order to get attention
from his supervisors. Id. In this case, the court applied the mixed standard finding
that the defendant was in possession of a destructive device under 26 U.S.C. §
5845(f)(3). Id. at 627. However, had the court only applied the subjective standard,
the court would have only been able to look at what the defendant explicitly stated
to officials and because he lacked ill intentions, he would have escaped culpability
under the statute. Applying a purely subjective standard not only fails to properly
address the congressional intent behind the Act but would also lead to inequitable
results. Therefore, this Court should adopt the mixed standard.
B. Under 26 U.S.C. § 5845(f)(3), an application of the mixed standard
demonstrates how items in a defendant’s possession prove intent to design
and fabricate a destructive device
The terms “designed” and “intended” as used in § 5845(f)(3) are separated by
the disjunctive word “or.” This construction suggests that the statutory terms
separated by a disjunctive are to be given separate meanings unless the context
dictates otherwise. Therefore, under subparagraph (f)(3) of the Act, a “device” may
be converted into a “destructive device” either because of “design” or because of
“intent.” Johnson, 152 F.3d at 625. The proper statutory interpretation of
subparagraph (f)(3) of the Act is the mixed standard, which requires a two-prong
analysis. Kristen A. Nardolillo, Note, Dangerous Minds: The National Firearms Act
and Determining Culpability for Making and Possessing Destructive Devices, 42
Rutgers L.J. 511, 530 (2011). First, this Court must consider the objective, strict
liability interpretation and determine if the combination of parts were designed for
use as a destructive device. Id. In order to fall within the purview of subparagraph
(f)(3) of the Act, the components need not be previously assembled nor presently
combined to be considered a destructive device. See Davis, 313 F. Supp. at 714
(holding that the context of the term “combination” means an association of items of
a destructive device that is capable of being converted at the same time and place).
If this Court finds that the objective interpretation of the facts show that the
combination of parts satisfy all requirements of subparagraph (f)(3) and that there
is no legitimate social purpose for the components, this Court’s analysis should end
by finding the defendant in possession of a destructive device. Nardolillo, supra, at
531. However, if this Court finds that the separate components, which have not yet
been fitted together, could serve both a legitimate and unlawful purpose, this Court
should continue to the second prong of the analysis. Id.
The second half of the analysis requires this Court to consider whether the
separate components were explicitly intended for use in assembling a destructive
device. Id. (emphasis added). While the circuit courts are split on which standard to
adopt, even such courts that have adopted the purely objective standard have
recognized the need for flexibility in certain instances. See Posnjak, 457 F.2d at
1119 (holding that one’s intentions to convert components into a destructive device
may be important if the components are capable of converting into both a
destructive device and another object not covered by the Act). The mixed standard
allows courts to make critical findings into the subjective intent of the defendant
through a list of factors, while balancing those factors with the objective
interpretation of the components. Nardolillo, supra, at 531. Therefore, this Court
should affirm the Fourteenth Circuit’s ruling as they properly applied the mixed
standard to subparagraph (f)(3) of the NFA.
1. This Court should first consider the objective intent of the device to
determine whether the items have legitimate social value and can be
readily assembled
The first prong under the mixed standard focuses on the objective use of the
device or combination of parts in question. Nardolillo, supra, at 528. In order to pass
the objective inquiry and avoid an analysis of the defendant’s subjective intent, the
combination of items must be capable of being readily assembled into a destructive
device and have no additional social value. Id. at 530. First, the components of the
device should be examined to determine whether the items can be “readily
assembled” into a destructive device. See United States v. Uzenski, 434 F.3d 690,
702–03 (4th Cir. 2006) (showing how expert witnesses provided sufficient evidence
to prove that the components of the device could be easily detonated at any time
and thus met the readily assembled requirement). Additionally, the component
parts should be assessed to determine whether the items “can be considered to have
any value other than as a weapon.” Johnson, 152 F.3d at 627. Under this objective
prong, two separate analyses need to be made. The first will focus on the plastic
filaments formula in combination with the gun plans found on the golden USB
drive. R. at 18. The second will focus on the hairspray, matches, 3D-printed
cylinder, and other miscellaneous items found in Ms. Borne’s luggage. R. at 18.
a. The gun plans and plastic filament formula do not have a
legitimate social value
When it is clear that a combination of parts creates a destructive device as
defined under subparagraph (1) and (2), intent is irrelevant because “the parts are
clearly ‘designed’ to convert the device into a destructive device.” Posnjak, 457 F.2d
at 1119. However, when it is not clear, the analysis falls on whether the parts are
readily assembled. All items found in Ms. Borne’s luggage fall within subparagraph
(1) or (2) of the Act. The gun plan and plastic filaments formula found on the USB
drive specifically align with a destructive device under subparagraph (2) of the Act
because the plans create a weapon that will “expel a projectile by the action of an
explosive.” 26 U.S.C. § 5845(f)(2). When there is a lack of ambiguity as to the nature
of the assembled device, the items are deemed a destructive device. United States v.
Urban, 140 F.3d 229, 234 (3d Cir. 1998). In Urban, the defendant possessed a
pamphlet, which included detailed instructions on how to construct a grenade, and
other items that were useful in creating a grenade. Id. at 231. The court held that
the evidence was uncontradicted to show that the defendant was in possession of
parts expressly designed to create a grenade and thus, the defendant’s intent was
irrelevant. Id. at 234. Similar to Urban, Ms. Borne was in possession of gun plans
on the USB drive that had specific instructions on how to design and print a firearm
on a 3D printer. R. at 9. When examining the combination of the gun plans along
with the plastic filament formula, there is no ambiguity as to the nature of the
assembled device. The expert witness in this case found that the combination of the
plans on the USB drive created a device that not only fired a bullet, but also always
blew up when fired. R. at 18–19. The plans found in Ms. Borne’s possession meet
the requirements of a destructive device under subparagraph (2) because the device
became an explosive every time it expelled a bullet. Moreover, the intended device
could easily be created in a matter of hours with the proper equipment. R. at 21.
Regardless of whether there are missing items, which would cause the device
to meet its full capacity, the components are still a destructive device if it has no
social value. See United States v. Spoerke, 568 F.3d 1236, 1247 (11th Cir. 2009)
(holding that the device was designed as a weapon, even though there were missing
design features which would cause the device to explode, because it had no social
value). Despite the plans on the USB drive requiring additional equipment to
produce the destructive device, the gun plan and plastic filament formula have no
legitimate social or commercial purpose other than to create this destructive device.
The purpose of the plastic filament formula was to create a stronger plastic filament
for the 3D printer. R. at 10. Additionally, the gun information found on the gold
USB drive were plans to specifically design and print a firearm, which expels
projectile, on a 3D printer. R. at 9. Although independently, these items could
potentially be considered to have social value, the items formed a device that had no
legitimate social purpose.
If unassembled parts form an object or indicate that the object may only be
used as a weapon with no legitimate social purpose, then the objective inquiry ends.
Johnson, 152 F.3d at 628. The gun plan and plastic filament formula formed a
weapon that exploded every time it was fired. R. at 18. When looking at the items
objectively, the items do not create an ordinary firearm nor do they form a
legitimate object that is not covered by the statute. Rather, the items create a
destructive device, which is not useful for any legitimate purpose other than an
explosive weapon that expels projectile. Therefore, because the combination of parts
creates a destructive device defined under subparagraph (2) of the Act and the
items have no additional social value, a further analysis into Ms. Borne’s subjective
intent with regard to the items found on the USB drive is unnecessary. Therefore,
this Court should refrain from looking at the second prong of the mixed standard.
b. The hairspray, matches, and 3D-printed cylinder can be readily
assembled, but individually have a legitimate social purpose
FBI ballistics experts established that the combination of the hairspray,
matches, 3D-printed cylinder, and miscellaneous items found in Ms. Borne’s
luggage was capable of creating a bomb as established under subparagraph
(f)(1)(A). R. at 18. However, it is not particularly clear whether the parts are solely
designed to convert to a destructive device. Therefore, further analysis into the
objective use of the items is required, specifically focusing on whether the items can
be readily assembled and whether the items have a legitimate social purpose.
A combination of items is deemed to be “readily assembled” when the
defendant has in his or her possession all of the component parts from which a
destructive device may be assembled. See United States v. Malone, 546 F.2d 1182,
1184 (5th Cir. 1977) (holding that the items were not a destructive device because
the defendant did not possess the necessary explosive materials to make the device
readily assembled). Unlike the defendant in Malone, Ms. Borne had all of the
necessary items needed to create the destructive device in her possession because
they were all found in her personal luggage. R. at 18. Further, she was not missing
any additional items needed in order to assemble or detonate the device because
Ms. Borne also had matches in her possession, which have been found to be
sufficient for an explosive substance. See United States v. Saunders, 166 F.3d 907,
914 (7th Cir. 1999) (holding that the defendant had all the necessary items for his
destructive device because the vials of incendiary match heads were an explosive,
which could detonate the grenade). Furthermore, the items could have easily been
converted into the destructive device because Ms. Borne could have obtained the
necessary information to create the destructive device by conducting a quick
Internet search. R. at 18. Thus showing the ease and how readily accessible the
items were in creating the destructive device. Therefore, the combination of items in
Ms. Borne’s possession was “readily assembled” as required under the Act.
However, the critical inquiry in the mixed standard is “whether the device, as
designed, has any value other than as a weapon.” United States v. Hammond, 371
F.3d 776, 781 (11th Cir. 2004). Although a combination of items may form a
destructive device within the Act, the components separately may have their own
social utility. See United States v. Tankersley, 492 F.2d 962, 966 (7th Cir. 1974)
(showing that although the combination of a bottle, firecracker, tape, and paint
remover create a Molotov cocktail, separately they have their own social value and
therefore require further examination into the subjective intent). When examining
the items in Ms. Borne’s luggage, it is apparent that the items have their own
separate value because it is not clear that the combination of the items were
designed to create a destructive device. The hairspray and matches found in Ms.
Borne’s luggage have a valid social use because they are typical household items. R.
at 12–13. Additionally the 3D-printed cylinder may also be considered to have its
own social value because it was a sample of the product of Ms. Borne’s curve code.
R. at 12. Therefore, because the items have their own legitimate social purpose or
use, the combination of those items will require further examination into Ms.
Borne’s subjective intent in possessing those items.
Under the first prong of the mixed standard, it is apparent that the items
found in Ms. Borne’s possession are capable of creating an incendiary or explosive
device, which meets the definition of a destructive device under subparagraph (1)
and (2) of the Act. When examining the items separately to determine whether they
have their own social utility, it is clear that the gun plans and plastic filament
formula found on the USB drives have no other social value and thus require no
further analysis into Ms. Borne’s intent. However, the combination of the hairspray,
match, 3D-printed cylinder, and miscellaneous items require further analysis
because of the value each item brings individually. Yet, an examination under the
second prong of the mixed standard will show that Ms. Borne’s intent behind the
combination of those items was to create a destructive device and thus, Ms. Borne
was properly charged and convicted under 26 U.S.C. § 5845(f)(3).
2. If this Court finds that the items had both a legitimate and unlawful
purpose, Ms. Borne’s actions and the surrounding circumstances prove
her subjective intent to create a destructive device
Where the construction of a particular set of items could represent both a
legitimate and antisocial purpose, it is proper for the court to resort to the
subjective intent of the defendant. Tankersley, 492 F.2d at 966. Although the
number of items found in Ms. Borne’s luggage, including hairspray, matches, and a
3D-printed cylinder may have some legitimate social purpose if contained
separately, this Court’s analysis should not conclude until Ms. Borne’s subjective
intent for use of those items is determined. The second prong of the mixed standard
analysis requires a determination of subjective intent, which, upon survey of the
circuits who have addressed the issue, can be broken down into a list of nonexhaustive factors. Nardolillo, supra, at 531.
This Court should consider all factors pertaining to both the defendant’s
intentions and surrounding circumstances of the defendant’s possessions. Among
the first items in the list to determine subjective intent are the defendant’s
admissions, including any statements given regarding the purpose of the device or
items in question. See Oba, 448 F.2d at 894 (explaining that even where a
combination of items may have a legitimate purpose, the defendant’s admission that
he intended to destroy the property of another is a clear indication of his subjective
intent). Here, although Ms. Borne did not give a direct statement to the court
concerning her intent for the items, statements on her Twitter account states
“[w]ith one wish, I wish all guns would blow up.#guncontrol,” suggest her
willingness to create a destructive device. R. at 18.
Secondly, the Court can consider whether the defendant has taken any
positive, yet incomplete steps towards creating the destructive device. See Ballew v.
United States, 389 F. Supp. 47, 56 (D. Md. 1975) (explaining how items that once
had a lawful use, given the slightest modification, can convert those items into a
destructive device). Contained in Ms. Borne’s possession were several household
items, which at first glance appear harmless, but with very slight modifications
could be converted to create a destructive device. Specifically, the matches, which
contain potassium chlorate, have been found to be an explosive material for
purposes of creating a destructive device from common household items. Saunders,
166 F.3d at 915. In Saunders, FBI agents discovered a suspicious package that the
defendant attempted to sneak into a courthouse in order to harm a federal judge. Id.
at 910. After safely neutralizing the package, agents found several items including a
hollowed out book, tape, wires, a battery, and a vial containing match heads. Id.
Additionally, the package included a letter that explained the defendant’s
intentions to harm the judge by any means possible. Id. The Seventh Circuit held
that although the items would normally be used for household purposes, the
defendant’s intentions made it clear that he intended to use the items for antisocial
purposes. Id. at 916. Similarly, as the defendant in Saunders was attempting to
enter a courthouse, Ms. Borne also attempted to enter an airport with the items
necessary to create a destructive device. Furthered by her comments on her Twitter
account, this Court can reasonably conclude that Ms. Borne had ill intentions for
the use of the items. Therefore, this Court should then consider whether the
surrounding circumstances, including Ms. Borne’s association with a terrorist
organization, would constitute the requisite intent to create a destructive device.
The surrounding circumstances that this Court should consider include the
proximity of suspicious items in the defendant’s possession, which would easily
convert the items to a destructive device. See Fredman, 833 F.2d at 839 (explaining
that evidence of all components necessary to construct an explosive device, coupled
with the method of transportation of those items, lends to their subjective intent).
Additionally, in United States v. Loud Hawk, a search of the defendant’s car
revealed an assortment of items including pocket watches, batteries, electrical wire,
blasting caps, and construction grade dynamite. 628 F.2d 1139, 1144 (9th Cir.
1979). The Ninth Circuit recognized that, while each separate item in the
defendant’s possession could have a lawful use, the combination of parts and the
circumstances of their discovery, all in the defendant’s trunk while traveling on a
highly trafficked state highway, eluded to the subjective purpose of being converted
to a destructive device. Id. at 1151. Similarly, when HPD officers arrested Ms.
Borne, each of the items necessary to create a destructive device were firmly
situated in her luggage, which was to be transported through an international
airport. R. at 16. In the American post-9/11 world, both international and domestic
terrorism is at its most vulnerable position during airplane transportation. John
Rogers, Note, Bombs, Borders, and Boarding: Combatting International Terrorism
at United States Airports and the Fourth Amendment, 20 Suffolk Transnat'l L. Rev.
501, 508 (1997). Therefore, these surrounding circumstances should be taken into
consideration when assessing Ms. Borne’s subjective intent.
Finally, in line with the concerns regarding the increasing threat of terrorism
in America and across the globe, this Court should consider whether Ms. Borne was
associated or suspected of any terrorist activity. See United States v. Worstine, 808
F. Supp. 663, 670 (N.D. Ind. 1992) (explaining that when determining a defendant’s
subjective intentions of the destructive device, the court should consider whether or
not a person is suspected of criminal or terrorist activity). The Fourteenth Circuit
correctly held that Ms. Borne had sufficient knowledge that Clive Allen was a
member of the foreign terrorist organization Dixie Millions and that she attempted
to provide material support and resources to that organization. R. at 24. Therefore,
Ms. Borne’s association and actions connected with Dixie Millions, along with the
other surrounding circumstances, prove that she had the requisite intent to create a
destructive device. Thus, this Court should affirm the Fourteenth Circuit’s ruling
and uphold Ms. Borne’s conviction under 26 U.S.C. § 5845(f)(3).
II.
THIS COURT SHOULD AFFIRM THE FOURTEENTH CIRCUIT’S
HOLDING THAT MS. BORNE WAS PROPERLY CONVICTED UNDER 18
U.S.C § 2339B BECAUSE SHE ATTEMPTED TO PROVIDE MATERIAL
SUPPORT AND RESOURCES TO A KNOWN MEMBER OF A FOREIGN
TERRORIST ORGANIZATION.
In response to the World Trade Center bombings in 1993, Congress passed
several bills to eliminate financial support of terrorist activities. Katherine R.
Zerwas, No Strict Scrutiny—The Court’s Deferential Position on Material Support
to Terrorism in Holder v. Humanitarian Law Project, 37 Wm. Mitchell L. Rev. 5337,
5338 (2011). The codification of these bills culminated in the enactment of 18 U.S.C.
§ 2339A, which prohibited providing “material support or resources, knowing or
intending that they are to be used in preparation for, or in carrying out, a violation”
of multiple statutory offenses. 18 U.S.C. § 2339A, amended by Act of Dec. 17, 2004,
Pub. L. No. 108–458, § 6603(b), 118 Stat. 3762. However, § 2339A as originally
enacted had two “prosecution hurdles” that led Congress to amend the statute after
the bombing of the Alfred P. Murrah building in Oklahoma City in 1995. Zerwas,
supra, at 5339. The two prosecution hurdles were (1) section 2339A required a
finding of specific intent showing that a person intended the monetary aid to the
terrorist organization be used to fund some illegal purpose; and (2) it required the
prosecution to relate back to a specific act of terrorism. Id. at n.8. Congress
therefore enacted the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) in
1996 that codified a new material support provision under 18 U.S.C. § 2339B, and a
foreign-terrorist designation scheme under 8 U.S.C. § 1189. Id. at 5339.
Once an organization was designated as a foreign terrorist organization
(“FTO”), § 2339B made it “a criminal offense to provide material support to that
organization or persons affiliated with it.” Id. (emphasis added). As originally
enacted, material support or resources encompassed “currency or other financial
securities, financial services, lodging, training, safehouses, false documentation or
identification, communications equipment, facilities, weapons, lethal substances,
explosives, personnel, transportation, and other physical assets, except medicine or
religious materials” (as defined under § 2339A). 18 U.S.C. § 2339B, amended by Act
of Dec. 17, 2004, Pub. L. No. 108–458, § 6603(c), 118 Stat. 3762–63. Also, the
original language under § 2339B stated that in order for conduct to be considered
unlawful, the actor must “knowingly provide[] material support or resources to a
foreign terrorist organization, or attempt[] or conspire[] to do so.” Id. Until 2005,
district courts were divided as to whether a person being prosecuted under § 2339B
was required to know that not only were they supporting a designated FTO, but
also that there support or resources were being used to further terrorist activities of
the FTO. See United States v. Al-Arian, 308 F. Supp. 2d 1322, 1338–39 (M.D. Fla.
2004) (finding that prosecution under § 2339B required actual knowledge that an
organization was an FTO, and that any support or resources to the FTO must have
been made to further terrorist activity); but see United States v. Marzook, 383 F.
Supp. 2d 1056, 1070 (N.D. Ill. 2005) (disagreeing with Al-Arian and finding that a
person only need to know that an organization engaged in terrorist activity, and
that any material support given to that organization was unlawful regardless of its
nature or purpose) (emphasis added).
This divide amongst district courts was the likely result of Congress’s
intentional removal of a specific intent requirement under § 2339B by amending the
statute in 2004 and adding the clause “[t]o violate this paragraph, a person must
have 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, amended by
Act of Dec. 17, 2004, Pub. L. No. 108-458, § 6603(c), 118 Stat. 3762–63.1 In 2010,
this Court stated that “Congress plainly spoke to the necessary mental state for a
violation of § 2339B, and it chose knowledge about the organization’s connection in
terrorism, not specific intent to further the organization’s terrorist activity.” Holder,
561 U.S. at 16–17.
In addition, this Court in Holder found that § 2339B was
constitutionally valid and that Congress’s pursuit for the prohibition of material
support and resources to FTOs is “consistent with the limitations of the First and
Fifth Amendments.” Id. at 40. Therefore, the Fourteenth Circuit properly affirmed
the ruling of the district court because Ms. Borne knew that Clive Allen was a
member of Dixie Millions and engaged in terrorist activity, and that she attempted
to travel abroad to intentionally meet with Clive Allen and provide him with
expertly drafted computer code.
1
Congress also amended § 2339A and its definition of “material support or resources” to include (1)
“any property, tangible or intangible, or service”; (2) “expert advice or assistance”; (3) personnel (1 or
more individuals who may be or include oneself”; and (4) definitions to the terms “training” and
“expert advice or assistance.” 18 U.S.C. § 2339A, amended by Act of Dec. 17, 2004, Pub. L. No. 108–
458, § 6603(b), 118 Stat. 3762.
A. Specific intent to further the goals of a foreign terrorist organization is not
required under § 2339B
Under § 2339B, anyone who provides or attempts to provide material support
to a FTO “must have knowledge . . . that the organization has engaged or engages in
terrorist activity . . . or that the organization has engaged or engages in terrorism.”
18 U.S.C. § 2339B(a)(1) (emphasis added). In accordance with federal law as applied
to the material support statute, terrorism is defined as “premeditated, politically
motivated violence perpetrated against noncombatant targets by subnational
groups or clandestine agents” (as defined in section 140(d)(2) of the Foreign
Relations Authorization Act, Fiscal Years 1988 and 1989). 22 U.S.C.A. § 2656f(d)(2)
(West 2015). This Court has held, and the majority of other federal courts have
followed, that attempting to provide material support or resources under § 2339B
does not contain a specific intent requirement and that the only knowledge required
under the statute is that the organization was a terrorist organization or was
engaged in terrorism. Abecassis v. Wyatt, 7 F. Supp. 3d 668, 675 (S.D. Tex. 2014)
(citing Holder, 561 U.S. at 16).
1. Ms. Borne’s speech and conduct satisfies the intent requirement under
§ 2339B regardless of its intended use
In 2010, this Court held that “speech” that is deemed material support to an
FTO does not have to be “intended to further a foreign terrorist organization’s
illegal activities.” Holder, 561 U.S. at 16. In addition, this Court looked to the
surrounding statutes of § 2339B, specifically § 2339A and § 2339C, and noted a
specific intent requirement “to further terrorist activity.” Id. at 17. However, this
Court acknowledged Congress did not implement this intent language into § 2339B
in either 1996 or in 2004 when the material support statute was amended. Id.
Therefore, the legislative history shows that § 2339B does not contain a specific
intent requirement.
Prior to Holder, district courts on occasion found that any support or aid to an
organization deemed an FTO supported the unlawful goals of the FTO despite its
intended use. See Marzook, 383 F. Supp. 2d at 1058 (holding that a defendant’s
delivery of money to a family member of a co-conspirator linked to foreign terrorist
organization, Hamas, along with an attempt to visit that co-conspirator in prison
while visiting Israel, supported conviction under § 2339B regardless of the intent of
offering the aid); see Abecassis, 7 F. Supp. 3d at 673–74 (upholding Holder and
finding that only a “lower showing of knowledge was required to establish direct
liability under 2339B”); see also United States v. Kassar, 660 F.3d 108, 129 (2d Cir.
2011) (finding that the statute is “silent” as to the requirement that a defendant
must intend that any attempted aid support a terrorist aim of the organization).
Lacking a specific intent requirement, the material support statute “imposes two
express scienter2 requirements: that the aid be intentional and that defendant know
the organization [she] is aiding is a terrorist organization or engages in acts of
terrorism.” Kassar, 660 F.3d at 129.
2
Scienter is defined as “[a] degree of knowledge that makes a person legally responsible for the
consequences of his or her act or omission; the fact of an act's having been done knowingly, esp. as a
ground for civil damages or criminal punishment.” BLACK’S LAW DICTIONARY 1463 (Bryan A. Garner
ed., 9th ed. 2009).
Knowledge that an organization is either an FTO or an organization that
engages in terrorist activities may be proven through circumstantial evidence. See
United States v. Augustin, 661 F.3d 1105, 1121 n.7 (11th Cir. 2011) (holding that
the government met its burden of showing that the defendant satisfied that
knowledge requirement of § 2339B by using the defendant’s own speech and
conduct acknowledging a desire to ally with Al Qaeda inferred “beyond a reasonable
doubt” that the defendant was aware that the organization was involved in
terrorism); see also United States v. El-Mezain, 664 F.3d 467, 511–12 (5th Cir.
2011) (allowing evidence to be admitted that showed Hamas activities were
prevalent on the premises of the charitable organization that the defendants were
officers of, and that this evidence had probative value as to the defendant’s
knowledge that Hamas was in fact engaged in terrorist activities). In addition, a
defendant may not claim that prosecution under the material support statute is
barred by claiming that any support or resources provided was merely to persons or
“organizations with alleged ties” to FTOs. Strauss v. Credit Lyonnais, S.A., No. CV06-0702 (CPS), 2006 WL 2862704, at *10 (E.D.N.Y. Oct. 5, 2006) (quoting Nat’l
Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192, 200 (D.C. Cir. 2001))
(stating that an organization may not create an alias or give itself a new name, “and
then let it happily resume the same status it would have enjoyed had it never been
designated”).
Ms. Borne unequivocally satisfies the intent requirement of the material
support statute because she knew that Clive Allen was a member of Dixie Millions
and she intended to meet with him in Azran to proffer seemingly innocent computer
code in hopes that Allen might mentor her. R. at 12. Like Holder, where the
plaintiffs were denied the ability to provide “legal training” and “support for the
humanitarian and political activities” of an FTO, here Ms. Borne was properly
convicted for attempting to provide material support and resources to Clive Allen,
despite the computer code not being aimed to further the terrorist activity of Dixie
Millions. 561 U.S. at 10. Ms. Borne knew that Clive Allen was an integral member
of Dixie Millions. R. at 8. Additionally, U.S. law enforcement authorities were still
pursuing Clive Allen as part of the foreign terrorist organization Dixie Millions, and
only the Secretary of State may amend a FTO’s designation after it allegedly
“dissolved.” 8 U.S.C.A. § 1189(b)(1) (West 2015); R. at 6. Therefore, Ms. Borne’s
speech and conduct leading to her arrest and conviction satisfied the intent
requirement under § 2339B because she knew that Clive Allen was an integral
member of the foreign terrorist organization Dixie Millions and any support or
resource she attempted to deliver need not be in furtherance of any act of terrorism
by Dixie Millions.
2. Ms. Borne’s speech and conduct satisfies the requirement of
attempting to provide material support or resources under § 2339B
Ms. Borne was properly convicted under § 2339B because she attempted to
deliver computer code to Clive Allen and she was aware that he was a member of
Dixie Millions. R. at 22. The Second Circuit Court of Appeals stated that in order to
be found guilty of “attempting” to provide material support or resources to a known
foreign terrorist organization, a conviction requires “proof that a defendant (a) had
the intent to commit the object crime and (b) engaged in conduct amounting to a
substantial step towards its commission.” United States v. Farhane, 634 F.3d 127,
145 (2d Cir. 2011).
A person may be found in violation of § 2339B by attempting to provide
material support to an organization through their speech and conduct. Id. at 170. In
Farhane, a United States citizen was convicted of attempting to provide material
support to Al Qaeda through expert advice and medical aid. Id. at 134. The
defendant was a licensed physician who promised to treat members of Al Qaeda in
the future. Id. at 132. In order to prove the intent to commit the object crime, the
Second Circuit relied on the speech made by the defendant prior to the trial
expressing his support of the terrorist organization and his plan to join the terrorist
organization. Id. at 145–46. Next, the court found that the defendant made a
“substantial step” in carrying out his plan by making travel arrangements and
through his oath to join Al Qaeda; thereby, satisfying the second requirement of
“attempt” under the material support statute. Id. at 154. Ultimately, the Second
Circuit upheld the defendant’s conviction under § 2339B because the defendant
attempted to provide material support to an organization that the defendant knew
engaged in terrorism.
a. Ms. Borne’s speech satisfies the mens rea element of attempt
The First Amendment does not prohibit the evidentiary use of a citizen’s
speech to either establish the element of a crime or to prove motive or intent. Kaziu,
559 Fed. App’x at 35 (citing Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993)) (stating
that “Constitution does not erect a per se barrier to the admission of evidence
concerning one's beliefs and associations at sentencing simply because those beliefs
and associations are protected by the First Amendment”). Moreover, speech that is
transmitted over social media can decisively be used as evidence of a “strong intent
to join and to support” terrorist organizations. United States v. Nagi, No. 15–MJ–
2122, 2015 WL 4611914, at *2 (W.D.N.Y. July 31, 2015).
Introducing the political beliefs of a defendant may be used to prove the mens
rea element of charged crimes. See Kaziu, 559 Fed. App’x. at 35 (finding that
writings, political views, and videos that the defendant watched proved the intent
element of attempting to provide material support to a foreign terrorist
organization). In proving attempt to commit a crime, defendants are not convicted
for their political beliefs; rather, statements by a defendant on the record may
“constitute powerful evidence of the requisite intent” to commit the object crime.
Farhane, 634 F.3d at 145 (using a defendant’s statements in support of Al Qaeda to
satisfy the requisite intent element of attempt); see Nagi, 2015 WL 4611914, at *2
(denying bail of a detainee being charged under § 2339B because the defendant
made numerous social media posts supporting the Islamic State of Iraq and the
Levant (“ISIL”) and these postings were strong evidence that the defendant
intended to join and support ISIL).
Ms. Borne’s comments in regards to Dixie Millions and her use of social
media are clear and convincing evidence that satisfy the mens rea element of
attempt. R. at 17–18. Like Kaziu, where the defendant’s political speech and
conduct were introduced to satisfy the mens rea element of attempt, here Ms.
Borne’s statements on the record supporting Dixie Millions and the illegal activity
of hacking computer systems is decisive evidence of intent. 559 Fed. App’x. at 35; R.
at 17–18. Furthermore, Ms. Borne used social media to further the legitimacy of
Dixie Millions by re-tweeting 3 articles that were “pro-Dixie Millions.” R. at 18.
Thus, the evidence is overwhelmingly clear that Ms. Borne’s speech in agreeing
with and promoting Dixie Millions satisfies the requisite intent element of
attempting to provide material support or resources.
b. A substantial step was taken towards attempt
In order to be convicted for attempt to provide material support or resources,
evidence that the defendant “took at least one substantial step toward the actual
commission of the charge crime” must be shown. United States v. Mehanna, 735
F.3d 32, 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.’” Farhane, 634 F.3d at 147 (quoting United
States v. Manley, 632 F.2d 978, 987 (2d Cir. 1980).
The material support statute criminalizes a wide array of conduct that may
not be harmful on its own; therefore, a substantial step towards materially
supporting terrorism does not need to end up in actual terrorist harm but it merely
needs to be in support of an organization committed to such harm. Farhane, 634
F.3d at 148. Traveling to a foreign country where a foreign terrorist organization is
3
“In addition to posting their own tweets, [Twitter] users may send messages to a single user (‘direct
messages’) or repost other users' tweets (‘retweet’).” In re Appl. of the United States for an Order
Pursuant to 18 U.S.C. § 2703(d), 830 F. Supp. 2d 114, 118 (E.D. Va. 2011).
known to reside can fully allow a jury to find that a substantial step was taken in
attempting to provide material support to that organization. Mehanna, 735 F.3d at
53. In Mehanna, the First Circuit noted that the presence of the FTO in that
country need not be confirmed and that a “factual impossibility” is not a defense to
liability for an “inchoate offense[] such as conspiracy or attempt.” Id. (holding that a
trip to Yemen searching for a possible Al Qaeda liaison, even though unsuccessful,
constituted a substantial step in the defendant’s attempt to provide material
support and resources to a foreign terrorist organization).
Ms. Borne took a substantial step in attempting to provide material support
and resources to Dixie Millions by intending to offer her specialized computer code
to Clive Allen during her intended trip to Azran. R. at 22. Like Farhane, where the
Second Circuit stated that a defendant’s attempt to support an FTO need not seek
to further any particular terrorist activity, here Ms. Borne’s attempt to deliver her
seemingly benign computer code does not have to further any illegal activity by
Dixie Millions to prove a substantial step. 634 F.3d at 148. Further, a defendant
who travels to a foreign country where an agent or liaison of an FTO is suspected to
be located, does not have to actually meet the agent nor does the FTO have to have
an actual presence in that country to satisfy a substantial step being taken by the
defendant to provide material support. Mehanna, 735 F.3d at 53. Accordingly, the
Fourteenth Circuit correctly held that the conviction of Ms. Borne under § 2339B
was proper because her conduct and speech show her intent to provide support to
Dixie Millions. R. at 22. Further, it was also evident she took a substantial step
towards providing the material support because had Officer Smith not arrested Ms.
Borne, she would have actually provided material support to Dixie Millions. R. at
15.
B. The material support statute's restrictions on providing aid to known
terrorist organizations does not violate the First Amendment or Fifth
Amendment
Justice Morgan in the dissent of the Fourteenth Circuit’s ruling in this case
alleges that the government’s prosecution of Ms. Borne infringes on the
constitutional rights of the accused. R. at 25–26. The dissent is troubled that the
upheld sentencing under § 2339B imparts a burden on the accused’s First
Amendment rights and denied her the proper due process under the Fifth
Amendment of the Constitution. R. at 25–26.
A law is deemed overbroad only if the law punishes a “substantial” amount of
a citizen’s free speech, “judged in relation to the statute’s plainly legitimate sweep.”
Virginia v. Hicks, 539 U.S. 113, 119 (2003) (quoting Broadrick v. Oklahoma, 413
U.S. 601, 615 (1973)) (ruling that incidental burdening of free speech is allowable if
it serves a compelling and legitimate governmental interest). A law is deemed vague
only if the law fails to provide adequate notice to the defendant that their actions
are unlawful and therefore violates a defendant’s right to due process “in all of its
applications.” Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.
489, 498 (1982) (emphasis added). Therefore, as applied in this case, § 2339B may
only be found overbroad if it substantially burdens Ms. Borne’s speech as compared
to the government’s interest in stopping aid to terrorism. Further, as applied in this
case, § 2339B may only be found vague if it denies citizens due process in all its
applications.
1. § 2339B is not overbroad as applied to Ms. Borne
This Court has held that the material support statute leaves all persons free
to “say anything they wish on any topic.” Holder, 561 U.S. at 4. The material
support statute therefore does not burden independent political advocacy or mere
membership of an organization. Farhane, 634 F.3d at 137 (citing Holder, 561 U.S.
at 18). Rather, § 2339B prohibits material support that often does not take the form
of speech, but when it does it is narrowly tailored to a category of speech which is
either “under the direction of, or in coordination” with members of an FTO. Id.
(citing Holder, 561 U.S. at 18)
Computer code may be considered “speech,” and therefore protected under
the First Amendment. Universal City Studios, Inc. v. Corley, 273 F.3d 429, 449 (2d
Cir. 2001). However, this Court noted that America’s interest in combatting
terrorism “is an urgent objective of the highest order,” and that § 2339B may
constitutionally prohibit a defendant from providing material support “in the form
of speech.” Holder, 561 U.S. at 28. Therefore, computer code may be constitutionally
prohibited under § 2339B to prevent providing material support to a foreign
terrorist organization.
The material support statute regulates speech on the basis of its content and
if that content “imparts a ‘specific skill’ or communications advice derived from
‘special knowledge’” then it is barred. Holder, 561 U.S. at 27 (stating that the
Legislature exercised its superior capacity for weighing competing interests and the
material support statute avoids any restriction on independent advocacy that is not
directed to, coordinated with, or controlled by foreign terrorist groups); see also
Corley, 273 F.3d at 450 (“Content-based restrictions are permissible only if they
serve compelling state interests and do so by the least restrictive means available.”);
see Farhane, 634 F.3d at 137 (upholding the ruling in Holder and finding that §
2339B does not suppress any independent advocacy or pure political speech).
Ms. Borne’s computer code is undoubtedly speech; however, this Court has
upheld the constitutionality of § 2339B against First Amendment challenges when
that speech is the material support that the statute expressly prohibits. Holder, 561
U.S. at 40. Like Holder, where this Court found that imparting knowledge to a
foreign terrorist organization about international law, even though aimed “to
peacefully resolve disputes,” constituted “training” under the material support
statute and was barred. Id. at 36. Here, Ms. Borne planned to show Clive Allen her
computer code to prove “her hacker credentials.” R. at 12. Therefore, as applied to
Ms. Borne, § 2339B does not overburden her First Amendment rights because the
computer code that was intended to fall into Clive Allen’s possession could easily be
seen as material support to Dixie Millions in the form of “training,” “service,” or
“expert advice or assistance.” 18 U.S.C.A § 2339B(g)(4) (West 2015); Holder, 561
U.S. at 47–48 (Breyer, J., with Ginsburg and Sotomayor, JJ., dissenting).
2. The coordination requirement of § 2339B was satisfied
After this Court’s ruling in Holder, courts have been inconsistent with the
use of “coordination” as one of the three speech conditions that trigger material
support liability. Andrew V. Moshirnia, Valuing Speech and Open Source
Intelligence in the Face of Judicial Deference, 4 Harv. Nat’l Sec. J. 385, 431 (2013).
While the term’s exact contours have not been defined, this Court has noted
multiple times “that the speaker need not share the same goals as the terrorist
organization.” Id. This lends to the plausible inference that “a coincidence of wants
between the speaker and the terrorist group . . . would likely qualify as coordination
even if there was no coincidence of motive.” Id.
The First Circuit upheld the defining of the term “coordination” functionally
through a district court’s jury instructions. Mehanna, 735 F.3d at 49. In Mehanna,
the court upheld a conviction under the material support statute against the
defendant for traveling to Yemen while seeking out an FTO, later translating Arablanguage materials into English, and posting those translations on a website. Id. at
41. The website was an online community for those sympathetic to Al Qaeda and
Salafi-Jihadi perspectives. Id. The district court instructed the jury that
“independent advocacy on behalf of the organization, not done at its direction or in
coordination with it, is not a violation of the statute.” Id. at 48. Despite this limiting
instruction, the defendant was still guilty of providing material support to a foreign
terrorist organization and the Circuit Court of Appeals upheld the conviction. Id. at
50. The First Circuit noted that the while facts surrounding the website postings
might not suffice “coordination,” in conjunction with the trips to Yemen the
defendant was properly convicted under § 2339B. Id. at 51.
Ms. Borne’s computer code that was intended for Clive Allen was
undoubtedly in coordination with Dixie Millions because it is not a form of
independent advocacy as contemplated by this Court in Holder. 561 U.S. at 24
(stating that “[i]ndependently advocating for a cause is different from the prohibited
act of providing a service to a group advocating for that cause”). Like Holder, where
the court upheld “regulating the particular forms of support that plaintiffs seek to
provide to foreign terrorist organizations,” here the Fourteenth Circuit correctly
reasoned that Ms. Borne was seeking to provide Clive Allen with specialized
computer code and that her actions were not independent of Dixie Millions. 561 U.S.
at 40 (emphasis added); R. at 22. Moreover, the record is clear that the writings of
Dixie Millions “encourage others to follow in their footsteps” and that Ms. Borne
received mentorship “assistance” from the likely “hackitivst” Dixie; therefore, the
“assistance” by Mrs. Ascot and the writings of Dixie Millions not only satisfy
“coordination” but also lends to the other speech condition of “directed.” R. at 22–23.
Therefore, Ms. Borne satisfied the speech condition, “coordination,” that is required
to trigger the material support statute.
3. § 2339B is not vague as applied to Ms. Borne
“A conviction fails to comport with due process if the statute under which it is
obtained fails to provide a person of ordinary intelligence fair notice of what is
prohibited, or is so standardless that it authorizes or encourages seriously
discriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008).
In 2004, Congress amended § 2339B and the definition of material support or
resources through the enactment of the Intelligence Reform and Terrorism
Prevention Act of 2004 (“IRPTA”). Intelligence Reform and Terrorist Prevention Act
of 2004, Pub. L. No. 108–458, § 6603, 118 Stat. 3762–3764 (2004). IRPTA added the
term “service” to the definition of material support or resources, but more
importantly it added definitions to the terms “training” and “expert advice or
assistance.” Id. The term “training” was defined as “instruction or teaching designed
to impart a specific skill, as opposed to general knowledge.” 18 U.S.C. § 2339A(b)(2)
(2012). Next, “expert advice or assistance” was defined as “advice or assistance
derived from scientific, technical or other specialized knowledge.” 18 U.S.C. §
2339A(b)(3) (2012). In Holder, this Court held that despite a stringent vagueness
test being necessary when a statute interferes with right of free speech or of
association, “perfect clarity and precise guidance have never been required even of
regulations that restrict expressive activity.” Holder, 561 U.S. at 19 (quoting Ward
v. Rock Against Racism, 491 U.S. 781, 794 (1989)). This Court ultimately held that
Congress took great care in narrowing the terms of material support and that the
lowered standard of knowledge affixed to § 2339B reduced any potential for
vagueness. Holder, 561 U.S. at 21.
Justice Morgan in the dissent of the Fourteenth Circuit’s holding in this case
purports that the majority ignored Ms. Borne’s due process concerns under the Fifth
Amendment. R. at 26. However, as applied to Ms. Borne, § 2339B is both
sufficiently definite and not arbitrary in its enforcement. R. at 26. First, as applied
to Ms. Borne, the statute is sufficiently definite because the dissent in Holder notes
twice that either “computer training” or “computer programming” might be
considered either “contributions” or “services” to a foreign terrorist organization.
Holder, 561 U.S. at 47–48 (Breyer, J., with Ginsburg and Sotomayor, JJ.,
dissenting). Second, the statute as applied to Ms. Borne is not arbitrary because §
2339B does not require a person to fear that a member of a foreign terrorist
organization “may do something nefarious;” rather, the knowledge requirement
under § 2339B requires only that a person knows that an organization engages in
terrorism and that the person attempt to provide any material support or resources
to that organization. 18 U.S.C.A § 2339B. Consequently, Ms. Borne was given
proper due process under the Fifth Amendment, because a person of ordinary
intelligence would be given fair notice that supplying an organization that has
committed acts of terrorism with material support is illegal, despite its intended
use, under the narrow terms and lowered standard of knowledge of § 2339B.
CONCLUSION
For the foregoing reasons, the United States of America respectfully requests
that this Court affirm the holding of the United States Court of Appeals for the
Fourteenth Circuit and enforce the conviction of Emmaline Borne for making a
destructive device and attempting to provide material support to a foreign terrorist
organization.
Respectfully submitted,
Team 87
Team 87
APPENDIX
U.S. Const. amend. I reads:
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 the
right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.
U.S. Const. amend. V reads:
No person shall be held to answer for a capital, or otherwise infamous crime, unless
on a presentment or indictment of a grand jury, except in cases arising in the land
or naval forces, or in the militia, when in actual service in time of war or public
danger; nor shall any person be subject for the same offense to be twice put in
jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use, without just compensation.
26 U.S.C. § 5845 reads, in pertinent part:
(f) The term “destructive device” means
(1) any explosive, incendiary, or poison gas
(A) bomb,
(B) grenade,
(C) rocket having a propellent charge of more than four ounces,
(D) missile having an explosive or incendiary charge of more than 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 a bore of more than one-half inch
in diameter, except a shotgun or shotgun shell which the Secretary finds is
generally recognized as particularly suitable for sporting purposes; and
(3) any combination of parts either designed or intended for use in converting
any device into a destructive device as defined in subparagraphs (1) and (2) and
from which a destructive device may be readily assembled. The term
“destructive device” shall not include any device which is neither designed nor
redesigned for use as a weapon; any device, although originally designed for use
as a weapon, which is redesigned for use as a signaling, pyrotechnic, line
throwing, safety, or similar device; surplus ordnance sold, loaned, or given by the
Secretary of the Army pursuant to the provisions of section 4684 (2), 4685, or
4686 of title 10 of the United States Code; or any other device which the
Secretary finds is not likely to be used as a weapon, or is an antique or is a rifle
which the owner intends to use solely for sporting purposes.
18 U.S.C. § 2339B reads, in pertinent part:
(a)(1) 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 subparagraph (g)(6)), that the organization has
engaged or engages in terrorist activity (as defined in section 212(a)(3)(B) of the
Immigration and Nationality Act), or that the organization has engaged or engages
in terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization
Act, Fiscal Years 1988 and 1989).
(g)(3) 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)
18 U.S.C. § 2339A reads, in pertinent part:
(b)Definitions.—As used in this section—
(1) the term “material support or resources” means any property, tangible or
intangible, or service, including currency or monetary instruments or financial
securities, financial services, lodging, training, expert advice or assistance,
safehouses, false documentation or identification, communications equipment,
facilities, weapons, lethal substances, explosives, personnel (1 or more individuals
who may be or include oneself), and transportation, except medicine or religious
materials;
(2) the term “training” means instruction or teaching designed to impart a
specific skill, as opposed to general knowledge; and
(3) the term “expert advice or assistance” means advice or assistance derived
from scientific, technical or other specialized knowledge.