No. C15-1359-1

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 THE RESPONDENT

Team # 52

Counsels of Record

  i

QUESTIONS PRESENTED

I. Whether an individual can be liable under 26 U.S.C. § 5845(f)(3) for

possessing a destructive device where the individual designs and fabricates it

components using a 3D printer and where those component parts can be

readily assembled to make an explosive device by way of its objective design

or intended purpose.

II. Whether an individual can be convicted under 18 U.S.C. § 2339B for

providing material support to a known foreign terrorist organization where

the individual planned to meet its leader and share valuable computer code

and where the statute clearly specifies the prohibited conduct.

  ii

TABLE OF CONTENTS Page

QUESTIONS PRESENTED ....................................................................... i

TABLE OF CONTENTS ............................................................................. ii

TABLE OF AUTHORITIES ...................................................................... vii

JURISDICTIONAL STATEMENT ........................................................... 1

STATUTORY PROVISIONS ..................................................................... 1

STATEMENT OF THE CASE ................................................................... 2

SUMMARY OF ARGUMENT ................................................................... 9

ARGUMENT .............................................................................................. 12

I. PETITIONER CAN BE CHARGED UNDER 26 U.S.C. § 5845(f)(3) BECAUSE THE DESIGN AND FABRICATION OF EXPLOSIVE PARTS ON A 3D PRINTER CONSTITUTES A “DESTRUCTIVE DEVICE,” IRRESPECTIVE OF WHETHER EACH INDIVIDUAL COMPONENT HAS A LEGITIMATE PURPOSE. ........................ 12 A. Section 5845(f)(3) Includes the Design and Fabrication of

3D Printed Parts As Congress Used Broad Language to Ensure the Statute Encompassed Modern Weaponry. ........ 14 1. The statute’s language does not exclude 3D printed

components. ................................................................. 14 2. Congress intended Section 5845(f)(3) to include homemade devices. ...................................................... 15 3. As a policy matter, the NFA should regulate 3D-printed destructive devices. .................................. 16

B. A “Mixed Motive” Standard Is the Appropriate Standard to Apply to 26 U.S.C. § 5845(f)(3) Because It Comports with

the Statute’s Language and This Court’s Precedent. .......... 17

  iii

TABLE OF CONTENTS (CONT.) Page

1. The statute’s disjunctive language necessitates a

mixed motive standard. .............................................. 19 2. The mixed motive standard aligns with this Court’s

mens rea jurisprudence regarding the NFA. .............. 20

C. Sufficient Evidence Supports Petitioner’s Conviction Under Section 5845(f)(3) Because She Possessed All the Components Necessary to Readily Assemble a Destructive Device. ................................................................ 22

1. Looking to the objective characteristics of the device, Petitioner possessed a destructive device because the components in her luggage, when combined, had no legitimate social or commercial purpose, and were capable of exploding. ................................................... 23

a. Petitioner’s intent is irrelevant because the 3D-printed cylinder is designed for use as a weapon. ............................................................. 24 b. The ballistics expert’s testimony provided

sufficient evidence for Petitioner’s conviction. ......................................................... 26

2. Even if the 3D parts and plans have a legitimate social purpose, these items are destructive devices given Petitioner’s terrorist sympathies, influential affiliates, and scientific acumen. ................................ 27

a. Taken as a totality, the components found in Petitioner’s suitcase constituted a destructive device. ........................................... 27

i. Petitioner’s terrorist allegiances are evidence of her liability under Section 5845(f)(3). ................................. 28

  iv

TABLE OF CONTENTS (CONT.) Page

ii. Third party intent is evidence of Petitioner’s liability under Section 5845(f)(3). ................................. 29

iii. The timing and circumstances of Petitioner’s arrest are evidence of Petitioner’s liability under Section 5845(f)(3). ................................. 29 iv. The ease of assembly is evidence of Petitioner’s liability under Section 5845(f)(3). ................................ 30

b. The gun plans are a destructive device. .......... 31

II. PETITIONER CAN BE PROSECUTED UNDER 18 U.S.C. § 2339B BECAUSE § 2339B WITHSTANDS CONSTITUTIONAL SCRUTINY AND BECAUSE MAKING PLANS TO MEET A KNOWN FTO TO PROVIDE COMPUTER CODE IS “MATERIAL SUPPORT” UNDER § 2339B. ............................................................................. 33

A. 18 U.S.C. § 2339B Is Constitutionally Valid on Its Face Because It Does Not Chill Freedom of Speech or Association Under the First Amendment Nor Does It Violate Due Process Under the Fifth Amendment. ......... 35

1. Section 2339B survives Petitioner’s First Amendment facial challenges because it is not unconstitutionally vague or overbroad. ............... 35

a. Section 2339B’s precise language puts a reasonable person on notice, and, therefore, does not abridge an individual’s freedom of speech or association. .................................. 35 b. Section 2339B does not restrict significantly more speech than the Constitution allows to be controlled, and, therefore, is not overbroad. ............................. 38

  v

TABLE OF CONTENTS (CONT.) Page

2. Section 2339B does not violate the Fifth Amendment’s Due Process Clause because it provides fair notice and is not susceptible to arbitrary enforcement. ................................................ 39 ‘

a. Section 2339B is not vague, and, therefore provides defendants with fair notice. ........................................................ 40 b. Section 2339B does not

encourage arbitrary enforcement. ................... 40

B. Petitioner’s As Applied Challenge Fails Under Either Intermediate Review or Strict Scrutiny Because the Government Has a Compelling Interest in Preventing Terrorism and this Court Routinely Defers to the Political Branches in Matters of National Security. ........... 42

a. Intermediate Scrutiny is the proper standard to apply because Section 2339B criminalized Petitioner’s conduct, not speech. ..................... 42 b. Even if this statute is a content-based regulation of Petitioner’s speech, the statute is narrowly tailored to further a compelling government interest. ......................................... 43

C. Sufficient Evidence Supports Petitioner’s Conviction Under Section 2339B Because She Attempted to Provide Valuable Property, Expert Advice, and Personnel to an Individual of a Known FTO. ...................... 45

1. Petitioner’s acts leading up to her arrest constitute “material support” as defined by Section 2339B. ...... 47

a. Petitioner’s code is highly valuable, and therefore, constitutes material support. ............................................................. 48

  vi

TABLE OF CONTENTS (CONT.) Page

b. Petitioner’s programming acumen and expertise constitutes material support. .......... 49

2. Petitioner took a substantial step toward providing material support to an FTO by researching Mr. Allen for a month, preparing a spreadsheet to locate Mr. Allen, and planning to give him her code. ....................................................................... 50 3. Petitioner knew Dixie Millions was an FTO. ............. 52

CONCLUSION ............................................................................................ 54

  vii

TABLE OF AUTHORITIES

Page(s)

CASES

United States Supreme Court

Apex Hosiery Co. v. Leader, 310 U.S. 469 (1940) .......................................................................... 16

Brandenburg v. Ohio,

395 U.S. 444 (1969) ......................................................................... 37

Broadrick v. Oklahoma, 413 U.S. 601 (1973) .......................................................................... 38, 39

Caminetti v. United States, 242 U.S. 470 (1917) .......................................................................... 19

Connally v. General Construction Co.,

269 U.S. 385 (1926) .......................................................................... 35

De Jonge v. State of Oregon, 299 U.S. 353 (1937) .......................................................................... 38

Hill v. Colorado, 530 U.S. 703 (2000) .......................................................................... 40

Hoffman Estates, Inc., 455 U.S. 489 (1982) .......................................................................... 41

Holder v. Humanitarian Law Project,

561 U.S. 1 (2010) .............................................................................. passim

Jackson v. Virginia, 443 U.S. 307 (1979) .......................................................................... 46

NAACP v. Button,

371 U.S. 415 (1963) .......................................................................... 35, 36

New York v. Ferber, 458 U.S. 747 (1982) .......................................................................... 39

  viii

TABLE OF AUTHORITIES (CONT.)

Page(s)

Scales v. United States,

367 U.S. 203 (1961) .......................................................................... 39 Singleton v. Wulff,

428 U.S. 106 (1976) .......................................................................... 34

Staples v. United States, 511 U.S. 600 (1994) .......................................................................... 20, 21, 22

Turner Broadcasting System, Inc. v. FCC,

520 U.S. 180 (1997) .......................................................................... 43

United States v. Balint, 258 U.S. 250 (1922) .......................................................................... 20-21

United States v. Freed, 401 U.S. 601 (1971) .......................................................................... 12, 20, 21

United States v. Int’l Minerals & Chemical Corp., 402 U.S. 558 (1971) .......................................................................... 20

United States v. Williams,

553 U.S. 285 (2008) .......................................................................... 37

United States Courts of Appeals

United States v. Al Kassar, 660 F.3d 108 (2d Cir. 2011) ............................................................. 46

United States v. Buchanan, 787 F.2d 477 (10th Cir. 1986) .......................................................... 25

United States v. Campbell, 685 F.2d 131 (5th Cir. 1982) ............................................................ 25

United States v. Copus, 93 F.3d 269 (7th Cir. 1996) .............................................................. 19

  ix

TABLE OF AUTHORITIES (CONT.)

Page(s)

United States v. Cruz, 492 F.2d 217 (2d Cir. 1974) ............................................................. 16

United States v. Farhane, 634 F.3d 127 (2d 2011), cert. denied 132 S.Ct. 833 ........................ 52

United States v. Greer, 588 F.2d 1151 (6th Cir. 1978) .......................................................... 15, 30

United States v. Hedgcorth, 873 F.2d 1307 (9th Cir. 1989) .......................................................... 25

United States v. Johnson, 152 F.3d 618 (7th Cir. 1998) ............................................................ passim

United States v. Lockwood,

789 F.3d 773 (7th Cir. 2015) ............................................................ 19 United States v. Lussier,

128 F.3d 1312 (9th Cir. 1997) .......................................................... 13, 20

United States v. Markley, 567 F.2d 523 (1st Cir. 1977) ............................................................ 22

United States v. Mehanna, 735 F.3d 32 (1st Cir. 2013) cert. denied, 135 S. Ct. 49 (2014) ..................................................... 51–53

United States v. Melancon,

462 F.2d 82 (5th Cir. 1972) .............................................................. 32 United States v. Morningstar,

456 F.2d 278 (4th Cir. 1972) ............................................................ 15, 17

United States v. Oba, 448 F.2d 892 (9th Cir. 1971) ........................................................... 17

United States v. One Sentinel Arms Striker, 416 F.3d 977 (9th Cir. 2005) ............................................................ 14,

  x

TABLE OF AUTHORITIES (CONT.)

Page(s)

United States v. Pearce, 86 F. App'x 919 (6th Cir. 2004) ........................................................ 20

United States v. Peterson,

475 F.2d 806 (9th Cir. 1973) ............................................................ 15

United States v. Posnjak, 457 F.2d 1110 (2d Cir. 1972) ........................................................... 18, 19, 23

United States v. Price, 877 F.2d 334 (5th Cir. 1989) ............................................................ 23,30

United States v. Ragusa,

664 F.2d 696 (8th Cir. 1981) ............................................................. 24, 31 United States v. Rushcamp,

526 F.2d 1380 (6th Cir. 1975) .......................................................... 26

United States v. Spoerke, 568 F.3d 1236 (11th Cir. 2009) ........................................................ 26

United States v. Tankersley, 492 F.2d 962 (7th Cir. 1974) ............................................................ 17, 22, 23

United States v. Urban, 140 F.3d 229 (3d Cir. 1998) ............................................................. 23

United States District Courts

United States v. Ahmed,

94 F. Supp. 3d 394, 410 (E.D.N.Y. 2015) ........................................ 41

United States v. Graziano, 616 F. Supp. 2d 350, 362 (E.D.N.Y. 2008) aff'd, 391 F. App'x 965 (2d Cir. 2010) ............................................ 32

United States v. Taleb-Jedi,

566 F. Supp. 2d 157 (E.D.N.Y. 2008) .............................................. 38

  xi

TABLE OF AUTHORITIES (CONT.)

Page(s) United States v. Warsame,

537 F. Supp. 2d 1005 (D. Minn. 2008) ............................................ 53

United States v. Worstine, 808 F. Supp. 663 (N.D. Ill. 1992) .................................................... passim

CONSTITUIONAL PROVISIONS

U.S. Const. Amend. V ................................................................................. 39 U.S. Const. Amend. I .................................................................................. 25

FEDERAL STATUTES

8 U.S.C. § 1189 (2015) ................................................................................ 53 18 U.S.C. § 921 (2006) ............................................................................... 13, 20 18 U.S.C. § 2339B (2015) ............................................................................ passim 18 U.S.C. § 3231 (2015) .............................................................................. 1

26 U.S.C § 5801 (2015) .............................................................................. 12 26 U.S.C § 5802 (2015) .............................................................................. 12 26 U.S.C. § 5845 (2015) .............................................................................. passim 26 U.S.C. § 5845 (2015) .............................................................................. passim 26 U.S.C. § 5871 (2015) .............................................................................. 12 28 U.S.C. § 1254 (2015) .............................................................................. 1

  xii

TABLE OF AUTHORITIES (CONT.)

Page(s) SECONDARY SOURCES

An Act to Amend Chapter 44 (Relating to Firearms) Pub L. No 94–455, 90 Stat. 520 (October 4, 1976) ......................... 16

An Act to Reform the Tax Laws of the United States

Pub L. No. 99–308, 100 Stat. 449 (January 21, 1986) .................... 16 Antiterrorism and Effective Death Penalty Act of 1996,

Sec. 324 Findings, Pub. L. No. 104–132 110 Stat. 1214 (April 24, 1996) ........................................................ 33

Franklin E. Zimring, Firearms and Federal Law:

The Gun Control Act of 1968 4 J. Legal Stud.133, 137–38 (1975) ................................................. 12, 15

Federal Business Opportunities,

Stratasys Objet24 Personal 3D Printer https://www.fbo.gov/index?s=opportunity&mode=form&tab =core&id=a63c2f0c479396b13c502bcf25574fe3&_cview=0 ........... 16

Huffington Post,

Feds Printed Their Own 3d Gun http://www.huffingtonpost.com/ 2013/11/13/3 d-guns-atf_n_4269303.html. .......................................................... 16

Luis de la Corte, Ex16plaining Terrorism: A Psychosocial Approach,

PERSPECTIVES ON TERRORISM, Vol. 1, No. 2 (2007) available at http://www.terrorismanalysts.com/pt/index.php/pot/issue/view/2 .. 28

U.S. Dept. of State, Foreign Terrorist Organizations

http://www.state.gov/j/ct/rls/other/des/123085.htm (last updated Sept. 3, 2015) .............................................................. 53

Undetectable Firearms Act,

Pub. L No. 113-57, 127 Stat. 656 (December, 9, 2013) ................... 17

  1

JURISDICTIONAL STATEMENT

Ms. Emmaline Borne (“Petitioner”) was charged under 26 U.S.C. § 5845(f)(3)

(2015) and 18 U.S.C. § 2339B (2015), for possessing a destructive device and

providing material support to a known foreign terrorist organization. R. at 17–18.

Jurisdiction in the District Court was based on 18 U.S.C. § 3231 (2015), as

Petitioner was charged with two offenses against the laws of the United States.

After a jury convicted Petitioner, timely appealed to the U.S. Court of Appeals for

the Fourteenth Circuit, which had jurisdiction under 28 U.S.C. § 1291 (2015).

After the Court of Appeals upheld both convictions, Petitioner timely

requested a writ of certiorari, which this Court granted pursuant to 28 U.S.C.

§ 1254(1) (2015). R. at 1.

STATUTORY PROVISIONS INVOLVED

This case involves the interpretation of Section 5845(f)(3) of Title 18, part of

the National Firearms Act (“NFA”). The NFA regulates component parts “either

designed or intended for use in converting any device into a destructive device.” 26

U.S.C. § 5845(f)(3) (2015). See Appendix “A.”

This case also involves the interpretation of Section 2339B of Title 26, part of

the Antiterrorism and Effective Death Penalty Act (“AEDPA”). This statute states:

Anyone who knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 20 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life.

26 U.S.C. § 2339B (2015).

  2

STATEMENT OF THE CASE

In May 2012, Police discovered Petitioner with materials capable of creating

an explosive device and a plan to meet with a known terrorist during a routine

traffic stop. R. at 15. Consequently, she was convicted for possession of an

explosive device and for aiding a known terrorist organization. R. at 18.

I. Known Terrorist Activity in the United States

Dixie Millions is a foreign terrorist organization (“FTO”) that has stolen and

leaked information from the United States Milnet and other global government and

business entities. R. at 5. This notorious hacktivist group has only two members:

Clive Allen, a former National Security Analyst, and his unknown associate. At the

time of Petitioner’s arrest, the FBI believed Mr. Allen’s unknown associate was

residing in Harrisburg. R. at 5–6, 15.

In June 2009, the National Security Agency (“NSA”) hired Mr. Allen as a

consultant. R. at 5. While there, Mr. Allen specialized in the design and

management of highly classified databases. R. at 5. The NSA did not know Mr.

Allen was a member of Dixie Millions until November 22, 2011, when Mr. Allen

announced that he was “Millions” of Dixie Millions and released documents he stole

directly from the NSA. R. at 5. Mr. Allen published this sensitive information via

the Darknet—an online tool often used by hackers to subvert the law. R. at 5. Mr.

Allen disappeared shortly after he illegally released the NSA documents. R. at 5.

Despite a nationwide manhunt, law enforcement could not locate Mr. Allen until

2012. R. at 6.

  3

On December 30, 2011, the Secretary of State declared Mr. Allen a criminal

and designated Dixie Millions as an FTO. R. at 5. From December 2011 to March

2012, Dixie Millions illicitly accessed numerous websites to acquire sensitive

information. R. at 5–6. Following each hack, Dixie Millions published the stolen

documents. R. at 5–6. On March 12, 2012, Mr. Allen announced that he had moved

to Azran. R. at 6. Azran granted Mr. Allen asylum and declared that any attempt

to capture him on Azranian soil would be an act of war. R. at 6. The Government

unsuccessfully attempted to negotiate for Mr. Allen’s release. R. at 6. During

negotiations, the United States learned that Mr. Allen had provided the Azranian

government with highly classified information. R. at 6.

Authorities have not confirmed the identity of Dixie Millions co-founder. R.

at 6. However, the FBI is “nearly certain” that Adalida Ascot, Petitioner’s physics

teacher and mentor, is “Dixie.” R. at 17. This assertion is strongly supported.

First, the FBI has mistakenly arrested a number of Mrs. Ascot’s former students as

hackers or suspected hackers. R. at 17. Mr. Allen and Mrs. Ascot attended Azran’s

University of Misthallery at the same time. R. at 6. Mrs. Ascot has expressed

admiration for Dixie Millions to Petitioner. R. at 8. Finally, Mrs. Ascot fled after

she learned Petitioner was arrested on suspicion of aiding Dixie Million’s terrorist

activity. R. at 16.

II. Mrs. Ascot and Petitioner’s Relationship

On October 13, 2011, Mrs. Ascot encouraged Petitioner and her friend, Fiona

Triton, to apply to “Technical Promise,” a pre-college study abroad program at the

  4

University of Misthallery. R. at 2–3. The program promotes sciences, engineering,

and mathematics to select high school students. R. at 3. Petitioner and Ms. Triton

had different reasons for applying to Technical Promise. Petitioner, a once avid

video game player, initially wanted to attend Technical Promise to learn video game

programming, but later decided to pursue hacking. R. at 4, 12. Ms. Triton, was

interested in chemical engineering. R. at 4. Both students were accepted into

Technical Promise on February 8, 2012. R. at 4.

Between November 2011 and early February 2012, Mrs. Ascot and

Petitioner’s relationship grew. R. at 4. During that time, Mrs. Ascot and Petitioner

realized they shared similar video game interests. R. at 3. One of those games was

“World of Masquerade” (“WOM”), a popular online role playing game. R. at 3.

Eventually, the two women joined the same guild and frequently played together.

R. at 4. In addition, Mrs. Ascot began meeting Petitioner after school to tutor her in

C++, which not necessary for Mrs. Ascot’s class. R. at 4. Mrs. Ascot even attended

dinner at Petitioner’s household several times. R. at 4.

IV. Petitioner and Mrs. Ascot Develop 3D-Code Capable of Printing a Perfect Cylinder

On April 3, 2012, Ms. Triton’s father, Hershel Triton, bought a 3D printer to

experiment with plastic filament formulas. R. at 7. As an experienced chemical

engineer for a major American weapons manufacturer, Mr. Triton believed he could

create a new plastic filament formula that would perform better than commercially

available filaments. R. at 7. Ultimately, he wanted his formula to be resilient

enough to withstand the heat from a gunshot. R. at 7. Mr. Triton downloaded 3D

  5

printable gun plans to test his formulas, and stored the plans on a gold USB drive.

R. at 7, 9.

A few weeks later, Petitioner, while visiting the Tritons, became interested in

Mr. Triton’s 3D printer. R. at 7. Mr. Triton explained to Petitioner how the

machine worked and informed her about its software issues. R. at 7. Petitioner

offered to fix the software code in exchange for a 3D-printed model of her WOM

character. R. at 7. Mr. Triton quickly agreed. R. at 7. Over the next few days,

Petitioner discovered an error that caused the 3D-printer to print an imperfect

curve. R. at 7. She tried to solve the problem on her own, but soon reached an

impasse. R. at 7.

On April 26, 2012, Petitioner asked Mrs. Ascot to help her correct the code.

R. at 7. During their meeting, they discussed a recent WOM database hack

orchestrated by Dixie Millions. R. at 8. Petitioner was curious about the hack and

Dixie Millions. R. at 8. In response to Petitioner’s questions, Mrs. Ascot

characterized Dixie Millions as “White Hat Hackers” and told Petitioner that she

believed Mr. Allen, the founder, was “an admirable person.” R. at 8. Mrs. Ascot

also told Petitioner that she planned to retire her WOM character in light of the

information revealed by the hack. R. at 8. At the end of the meeting, Mrs. Ascot

believed the two were close to solving the coding error and asked Petitioner if she

could finish the corrections on her own. R. at 8. Petitioner, excited that the error

was nearly fixed, allowed Mrs. Ascot to take the code home. R. at 8. On May 1,

2012, Mrs. Ascot gave Petitioner the perfected code. R. at 8. Petitioner then

  6

contacted the Tritons, took credit for the code, and scheduled a time to try “her”

code. R. at 8–9. The next night, Petitioner and Mr. Triton printed a test model. R.

at 9.

A few days later, Petitioner suggested that Mr. Triton print a perfect cylinder

to demonstrate how impressive the corrected software was. R. at 10. Realizing this

demonstration would be useful for his firearm tests, Mr. Triton agreed. R. at 10.

Together, the two designed and printed a 6 1/2 –inch tall, 1/2 inch diameter

cylinder, with a “thicker raft than usual” using standard plastic filament. R. at 10.

A perfect cylinder appeared twelve hours later. R. at 10. Because Petitioner no

longer played WOM, she asked Mr. Triton if she could keep the cylinder, and he

agreed. R. at 10.

V. Petitioner and Ms. Triton Prepare to Leave for Azran

On May 4, 2012, Mrs. Ascot, Petitioner, and Ms. Triton met to discuss

Technical Promise for the last time. R. at 9. Mrs. Ascot encouraged Petitioner and

Ms. Triton their bring projects to Azran. R. at 9. She also urged them to wear the

“White Hat.” R. at 9.

Mr. Triton and his daughter continued working on his filament formula

throughout May 2012. R. at 11. Ms. Triton asked her father if she could bring the

formula with her to Azran to continue working on it at Technical Promise. R. at 11.

Mr. Triton did not want her to bring it because he was worried someone would steal

his idea. R. at 11. Despite her father’s wishes, Ms. Triton downloaded the formula

onto a USB drive to take to Azran. R. at 11.

  7

Petitioner, following Mrs. Ascot’s advice, decided to pursue hacking, like Mr.

Allen and Dixie Millions. R. at 11. She spent all of May researching Mr. Allen on

the Darknet because she believed he was the ultimate “White Hat Hacker.” R. at

11. Petitioner also thought Mrs. Ascot would be proud of her for modeling herself

after Mr. Allen. R. at 7, 11.

While researching Mr. Allen, Petitioner discovered a list of recent places

where he had been spotted in Azran. R. at 11. Petitioner wanted to meet Mr. Allen

and ask for his mentorship, so she compiled his location data onto a spreadsheet

from the past few years in the hopes of deducing a pattern. R. at 11–12. Soon, she

realized that Mr. Allen visited the same University of Misthallery café every

Tuesday that fell on a prime number. R. 12. Petitioner planned to meet him at the

café on June 5, 2012 so that she could introduce herself and impress him with her

modified curve, the perfect cylinder, and her location spreadsheet. R. at 12. She set

a calendar reminder on her phone for Tuesday, June 5, 2012 with the label “Meet

Clive Allen at Café.” R. at 12. This reminder was set to alert her the day before the

meeting. See R. at 12.

VI. Petitioner’s Arrest

Mr. Triton drove Ms. Triton and Petitioner to the airport on the morning of

June 4, 2012. During a routine traffic stop, Mr. Triton was arrested for an

outstanding warrant. R. at 15. Mr. Triton told Officer Smith that he was on his

way to drop Petitioner and Ms. Triton off at the airport for their flight to Azran. R.

at 15. Petitioner and Ms. Triton were concerned they would miss their flight. R. at

  8

18. While consoling Petitioner and Ms. Triton, Officer Smith heard Petitioner’s

calendar alert and saw the reminder titled “Meet Clive Allen at Café.” R. at 15.

The reminder startled Officer Smith because the FBI had recently informed his

department that Mr. Allen’s associate was operating in the area. R. at 15. Upon

seeing Petitioner’s alert, Officer Smith arrested Mr. Triton, Ms. Triton, and

Petitioner on suspicions of aiding and abetting a known fugitive. R. at 15.

Police secured a warrant and searched Mr. Triton’s car. R. at 16. They found

matches, hairspray, a 3D-printed cylinder, curve code, a spreadsheet tracking Mr.

Allen’s Azranian locations, and Mr. Allen’s computer-generated image in

Petitioner’s possession. R. at 16. In addition, they discovered 3D-printable gun

plans on a gold USB drive and Mr. Triton’s filament formula on another USB. R. at

16. The U.S. Attorney subsequently filed charges against Mr. Triton, Ms. Triton,

and Petitioner. R. at 16.

VII. Proceedings Below

Mr. Triton and his daughter agreed to provide the FBI information about

Mrs. Ascot and accepted plea bargains. R. at 16. Petitioner, against the advice of

counsel, refused to cooperate. R. at 16. Instead, she hired another lawyer and,

against her parents’ advice, proceeded to trial. R. at 17. At trial, the Government

proved, beyond a reasonable doubt, that Petitioner possessed destructive devices as

defined by 26 U.S.C. § 5845(f)(3) (2015). R. at 22. The jury also convicted Petitioner

under 18 U.S.C. § 2339B (2015), for providing material support to an FTO.

Petitioner was sentenced to a total of seventeen years. R. at 18.

  9

Petitioner appealed to the U.S. Court of Appeals for the Fourteenth Circuit.

R. at 2. On appeal, she argued that the District Court applied the incorrect

standard for “intent” under Section 5845 and that Section 2339B unconstitutionally

abridged her First Amendment rights. R. at 18, 21. R. at 2. The Fourteenth

Circuit affirmed the District Court. R. at 2. Petitioner then petitioned for writ of

certiorari, which this Court granted. R. at 1.

SUMMARY OF ARGUMENT

In an era where coordinated terrorist attacks can happen at the blink of an

eye, ensuring the nation’s safety should be this Court’s utmost concern. Thus, this

Court should not and cannot turn a blind eye to the fact that even bright, young

individuals can threaten national security. This is especially true when that

individual possessed destructive devices, and intended to share valuable

information with a known terrorist. In light of the countervailing interest

in preventing terrorism, this Court should uphold the Fourteenth Circuit Court

of Appeals.

I.

Section 5845(f)(3) prohibits an individual from possessing component parts

that can be readily assembled into a destructive device. Destructive devices include

bombs, projectiles, or similar devices. Section 5845(f)(3) necessarily encompasses

parts designed or fabricated using a 3D-printed because the statute does not

exclude devices based on how they are made. Furthermore, courts have routinely

extended Section 5845(f)(3) to include crude and homemade devices.

  10

Here, Petitioner possessed two destructive devices: a primitive pipe bomb and

plans for an exploding gun under a mixed motive standard. This Court should

adopt a mixed motive standard because this standard comports with the statutory

language and is sensible in its application. The mixed motive standard involves two

inquiries. First, if the parts have no legitimate social purpose or are designed to be

a weapon, then the possessor violates the statute, irrespective of intent. However, if

the components have a social purpose, then this Court should consider the totality

of circumstances, including the individual’s intent.

Accordingly, Petitioner is liable under Section 5845(f)(3) because her suitcase

components, when assembled, had no legitimate purpose other than to be used as

weapon. Even if Petitioner’s components had social value, she is still liable under

5845(f)(3) given her terrorist sympathies, impressionable nature, and scientific

wherewithal.

Lastly, this Court should uphold the jury’s conviction because the jury was

best positioned to weigh evidence demonstrating the device’s destructive

capabilities and consider Petitioner’s credibility.

II.

Petitioner’s conviction under Section 2339B must also stand. First, the

statute does not suppress Petitioner’s right to freely associate or support Dixie

Millions. Rather, the statute only prohibits her from providing “material support”

to an FTO. Because this conduct rarely abridges an individual’s First Amendment

Rights, Petitioner’s facial challenge fails. As applied to Petitioner, Section 2339B

  11

proscribes her conduct, namely her attempts to give valuable “training,” “expert

advice” or “personnel” to a known FTO. Petitioner’s as applied challenge also fails

under strict scrutiny because the Government has a compelling interest in

protecting national security.

Second, the statute does not violate Petitioner’s right to due process under

the Fifth Amendment. Section 2339B is not unconstitutionally vague on its face

because it includes a scienter requirement which puts a person of ordinary

intelligence on fair notice of what conduct is prohibited. Furthermore, Section

2339B’s clear and definite terms prevents arbitrary or discriminatory enforcement.

Lastly, sufficient evidence supports Petitioner’s conviction. Her excessive

Darknet research and detailed plans demonstrated a substantial step toward

providing Mr. Allen with valuable resources. The Government proved that

Petitioner attempted to provide Clive Allen, the founder of a designated FTO, with

potentially dangerous computer code and her own expertise. These actions

constitute material support in violation of Section 2339B. Thus, this Court should

uphold the jury’s conviction because a rational trier of fact determined that

Petitioner knew Dixie Millions was a designated FTO, intended to provide valuable

materials, and took a substantial step toward providing such support.

  12

ARGUMENT

I. PETITIONER CAN BE CHARGED UNDER 26 U.S.C. § 5845(f)(3) BECAUSE THE DESIGN AND FABRICATION OF EXPLOSIVE PARTS ON A 3D PRINTER CONSTITUTES A “DESTRUCTIVE DEVICE,” IRRESPECTIVE OF WHETHER EACH INDIVIDUAL COMPONENT HAS A LEGITIMATE PURPOSE.

Congress passed the National Firearms Act of 1934 (“NFA” or “Title I”) to

regulate firearms in light of increasing gun ownership and the rise of gangster-

affiliated crime. Franklin E. Zimring, Firearms and Federal Law: The Gun Control

Act of 1968, 4 J. Legal Stud.133, 137–38 (1975). The NFA mandates registration

and taxation of firearms. Id. Given its purpose and history, this Court has

recognized that the NFA is a “regulatory measure in the interest of the public

safety.” United States v. Freed, 401 U.S. 601, 609 (1971). In 1968, Congress

supplemented the NFA’s regulations with the Gun Control Act (“GCA” or “Title II”).

Zimring at 144. Aware of the NFA’s limits, the GCA extended the NFA’s purview so

that the NFA not only covered traditional firearms, but also included “destructive

devices.” Id. at 14; Pub. L. No. 90-618, 82 Stat 1213; see also 26 U.S.C. § 5845.

(2015).

Under Section 5845(f)1, the NFA regulates three independent categories of

destructive devices. Subsection (1) defines a destructive device as “any explosive,

incendiary, or poison gas [such as] (A) bomb, (B) grenade, (C) rocket having a

propellent charge of more than four ounces, (D) missile having an explosive or

                                                                                                               1 Section 5845(f) is the “definitions” section of the NFA. Section 5801 and 5802

  13

incendiary charge of more than one-quarter ounce, (E) mine, or (F) similar device.” §

5845(f)(1). Per subsection (2), a destructive device can also be:

[A]ny type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell . . . generally recognized as particularly suitable for sporting purposes.

§ 5845(f)(2).2 Finally, subsection (3) recognizes that a destructive device, in its

component parts, can also be subject to the NFA. § 5845(f)(3). Subsection (3)

includes “any combination of parts either designed or intended for use in converting

any device into a destructive device as defined in subparagraphs (1) and (2) and

from which a destructive device may be readily assembled.” § 5845(f)(3). Thus, a

destructive device does not need to be pre-assembled to trigger NFA regulation. Id.

Finally, Section 5845(f) limits its reach, noting that destructive devices:

[S]hall not include any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device.

Id.

                                                                                                               2 18 U.S.C. § 921 (2006), the definitions section for the GCA, provides a similar definition for “destructive device.” Thus, this brief will cite to cases that interpret “destructive device” under both Section 921 and Section 5845. See United States v. Lussier, 128 F.3d 1312, 1314 n.3 (9th Cir. 1997) (“The definition of a destructive device in Section 921 is virtually identical to that in the statute prohibiting unregistered possession of these objects, 26 U.S.C. § 5845(f). We can therefore look to cases interpreting § 5845(f) for guidance in interpreting § 921.”).

  14

A. Section 5845(f)(3) Includes the Design and Fabrication of 3D Printed Parts As Congress Used Broad Language to Ensure the Statute Encompassed Modern Weaponry.

Congress anticipated Section 5845(f)(3) to cover Petitioner’s primitive 3D

printed pipe bomb, and other 3D printed components that are readily transformed

into destructive devices. The fear of unregulated military surplus weapons entering

the market is now the fear of instant, easily concealable 3D printed weaponry.

Thus, as a preliminary matter, this Court must conclude that Section 5845(f)(3)

does not exclude destructive devices merely because an individual designs or

fabricates its components using a 3D printer. This interpretation is apparent

through the statute’s text, Congress’s intent, and the paramount importance in

maintaining national security.

1. The statute’s language does not exclude 3D printed components.

Courts first look to the statute’s language and structure in determining the

scope of the statute. See United States v. One Sentinel Arms Striker, 416 F.3d 977,

979 (9th Cir. 2005). Looking at Section 5845(f)’s language and structure, it is clear

that the statute does not exclude “destructive devices” based on how “component

parts” are created. See, e.g., United States v. Johnson, 152 F.3d 618, 627 (7th Cir.

1998) (“We do not think the statute contemplates that the imposition of criminal

liability ought to turn on the degree of workmanship of the device.”); United States

v. Ragusa, 664 F.2d 696, 700 (8th Cir. 1981) (holding that crudely constructed

device composed of trash bags, gasoline, matches, and paper towels fit within the

statute because it possessed “all the physical components of a device similar to a

  15

bomb”). Rather, the text only excludes devices that are repurposed for legitimate

uses. See, e.g., § 5845(f)(3) (excluding pyrotechnics, signaling flares, line throwing,

or other devices used for safety). Accordingly, the statute includes 3D printed

components so long as they can be “readily assembled” into a destructive device and

cannot be repurposed for legitimate uses.

2. Congress intended Section 5845(f)(3) to include homemade devices.

Moreover, homemade 3D printed devices fit within Congress’s intent in

passing the NFA and GCA. Congress originally intended the GCA to regulate

firearms and other destructive devices entering the market through military

surpluses and foreign imports. Zimring at 144. Despite Congress’s initial interest

in restricting commercial military weaponry, “the courts have understood the

Congressional concern to extend to homemade devices.” United States v. Johnson,

152 F.3d 618, 624 (7th Cir. 1998); see also United States v. Peterson, 475 F.2d 806,

810 (9th Cir. 1973) (“Congress intended to foster law and order . . . by the

proscription of original and converted military type weapons and, also, the do-it-

yourself type of similar devices and weapons of crime, violence, and destruction.”);

Morningstar, 456 F.2d 278 at 281 (The legislative history is “not so conclusive” that

Congress only intended to restrict bombs and weapons employed by gangsters or

military ordinance.); United States v. Greer, 588 F.2d 1151, 1155 (6th Cir. 1978)

(Congress intended to proscribe “street varieties of homemade instruments.”)

  16

Despite the fact that courts have extended Section 5845(f) to non-military

weapons and other crude devices, Congress has not substantively3 amended or

repealed the statute since its inception. See Pub L. No 94–455, 90 Stat. 520 (1976);

Pub L. No. 99–308, 100 Stat. 449 (1986); See, e.g., United States v. Cruz, 492 F.2d

217, 219 (2d Cir. 1974) (extending coverage to molotov cocktails “since they have no

use besides destruction”). Thus, using the statutory canon of acquiescence,

Congress’s failure to modify Section 5845(f) demonstrates its approval and intention

for a broad application. See, e.g., Apex Hosiery Co. v. Leader, 310 U.S. 469 (1940)

(Despite the fact courts applied the Sherman Anti-Trust Act to labor unions,

Congress’s long time failure to alter the Act was “persuasive recognition that the

judicial construction [was] the correct one”).

3. As a policy matter, the NFA should regulate 3D-printed destructive devices.

Congressional concern in the 1960s over the prevalence of military surplus

grenades and homemade weaponry applies equally to the situation here. Now,

technology allows anyone with a 3D printer to create a homemade explosive with

the click of a button. The FBI has recognized that 3D printers “support the

advanced technical exploitation of evolving and existing high technology explosive

devices.” Federal Business Opportunities, Stratasys Objet24 Personal 3D Printer,

https://www.fbo.gov/index?s=opportunity&mode=form&tab=core&id=a63c2f0c47939

6b13c502bcf25574fe3&_cview=0. Moreover, typical safety measures, like X-ray

                                                                                                               3 While Congress amended the Act in 1976 and 1986, it did not substantively change or alter the definition of destructive devices.  

  17

machines, cannot detect 3D weapons if they are broken down into their component

parts. Undetectable Firearms Act, Pub. L No. 113-57, 127 Stat. 656 (December, 9,

2013); Huffington Post, Feds Printed Their Own 3D Gun And It Literally Blew Up

In Their Faces http://www.huffingtonpost.com/ 2013/11/13/3d-guns-

atf_n_4269303.html. Given that the NFA regulates homemade devices and given

the security concerns surrounding 3D printing, Section 5845(f)(3) includes explosive

devices designed and fabricated on a 3D printer.

B. A “Mixed Motive” Standard Is the Appropriate Standard to Apply to 26 U.S.C. § 5845(f)(3) Because It Comports with the Statute’s Language and This Court’s Precedent.

Not every device designed or fabricated on a 3D printer will fall within

Section 5845(f)(3)’s ambit. An individual will be charged for possessing a

destructive device when the device is inherently dangerous or when she has the

requisite level of intent. However, Section 5845(f)(3) does not specify what level is

required. Consequently, courts have adopted three different standards. See, e.g,

Morningstar, 456 F.2d 278 (4th Cir. 1972) (applying a subjective standard); Ragusa,

664 F.2d 696, 700 (8th Cir. 1981) (applying an objective standard); United States v.

Tankersley, 492 F.2d 962, 966 (7th Cir. 1974) (applying mixed motive standard).

This split has lead to inconsistent application and absurd results. For

example, in United States v. Oba, 448 F.2d 892, 894 (9th Cir. 1971), the Ninth

Circuit—using a subjective standard—held that defendant’s commercial dynamite

wrapped in wire, equipped with a fuse, and caps was a destructive device. They did

so because the defendant explicitly intended to bomb Eugene, Oregon. Id. On the

  18

other hand, the Second Circuit—using an objective standard—reached the opposite

conclusion regarding commercial dynamite. United States v. Posnjak, 457 F.2d

1110, 1116 (2d Cir. 1972). There, the court held that the defendant did not possess

a destructive device despite the fact that he sold thousands of commercial dynamite

with fuse and caps knowing it would be used for mass destruction. According to the

Second Circuit, this could not constitute a destructive device simply because

Congress did not intend Section 5845(f)(3) to cover commercial blasting dynamite.

Id. Thus, applying objective and subjective standards leads to polarizing results.

To avoid diametric consequences, this Court should uphold the Fourteenth

Circuit and adopt a mixed motive standard. Under this standard, intent, among

other factors, is relevant in determining whether an individual possessed a

destructive device. This standard first considers “the objective characteristics of the

device or component parts.” Johnson, 152 F.3d at 623. “If the objective design of

the [ . . . ] component parts indicates that the object may only be used as a weapon,

i.e., for no legitimate social or commercial purpose” then subjective intent will not

be considered. Id. If, however, the components have a social or commercial

purpose, “then subjective intent is an appropriate consideration in determining

whether the [ . . . ] parts at issue constitute a destructive device under subpart (3).”

Id.

Thus, Respondent respectfully requests this Court adopt the mixed motive

standard because the statute itself, by using the words “designed or intended to

  19

design” necessitates an objective and subjective inquiry, and because the mixed

motive standard comports with this Court’s precedent.

1. The statute’s disjunctive language necessitates a mixed motive standard.

Under Section 5845(f), the government can prove that an object is a

“destructive device” in two ways: (1) the object was fully assembled and could

detonate; or (2) the defendant “had ready access to all necessary components to

readily assemble an object that could detonate.” United States v. Lockwood, 789

F.3d 773, 779 (7th Cir. 2015). Subsection 5845(f)(1) and (2) lists assembled

destructive devices proscribed by the NFA without mention of “intent or design.”

Thus, courts will not analyze possessor’s intent if a fully assembled weapon falls

under subsection (1), like a firearm, or subsection (2), like a grenade. See United

States v. Copus, 93 F.3d 269, 272–73 (7th Cir. 1996); see also Posnjak, 457 F.2d at

1119 (“[W]hen it is clear that the assembled device created by combining the

components falls within (1) or (2), intent is irrelevant, for the parts are clearly

“designed” to convert the device into a destructive device.) (emphasis added).

Section 5845(f)(3), unlike (f)(1) and (2), has language that supports a mixed

motive standard. See Caminetti v. United States, 242 U.S. 470, 485 (1917) (“It is

elementary that the meaning of a statute must, in the first instance, be sought in

the language in which the act is framed.”) First, the statute uses disjunctive

language, stating that a destructive device can be made up of “any combination of

parts either designed or intended for use in converting any device into a destructive

device.” Thus, the government need only prove either to prevail. See United States

  20

v. Lussier, 128 F.3d 1312, 1314 n.6 (9th Cir. 1997) (holding that the Government

could successfully proceed on a “design” theory without showing “intent.”); United

States v. Pearce, 86 F. App'x 919, 921 (6th Cir. 2004) (“[T]he word ‘designed; in this

context refers to the objective, physical structure or method of operation and not to

the intent or schemes of the possessor.”). Accordingly, the language of the statute

necessitates both a subjective and objective inquiry, best captured by the mixed

motive test.

2. The mixed motive standard aligns with this Court’s mens rea jurisprudence regarding the NFA.

This Court has not specified what standard of intent should be applied to

Section 5845(f). This Court has, however, examined the NFA’s registration

requirement under Section 5861(d) as applied to fully assembled destructive devices

and firearms. This Court has held that there is no automatic mens rea requirement

when the statute does not specify intent. See Staples v. United States, 511 U.S. 600,

619 (1994). Often, the nature of the device itself guides the mens rea standard.

In United States v. Freed, 401 U.S. 601, 607 (1971), this Court held that

failure to register a hand grenade—a destructive device under the NFA—did not

require a specific mens rea. In so doing, this Court acknowledged that a certain

class of activities “affecting public health, safety, and welfare” do not necessarily

require mens rea. Id.; see, e.g., United States v. Balint, 258 U.S. 250, 253 (1922)

(holding that defendant need not know the drugs he sold were statutorily proscribed

under the Narcotic Act of 1914 to be culpable); United States v. Int’l Minerals &

Chemical Corp., 402 U.S. 558, 559, 565 (1971) (imputing knowledge on defendant

  21

despite statute’s use of the term “knowingly” when “dangerous or deleterious

devices” are involved). Thus, this Court imposed strict liability on grenades because

they are “highly dangerous offensive weapons” and “one would hardly be surprised

to learn that possession of hand grenades is not an innocent act.” Id. at 609.

In Staples v. United States, 511 U.S. 600, 610 (1994) this Court upheld the

reasoning of Freed, but applied a different mens rea requirement to gun possession.

There, the government charged defendant with possession of an unregistered

machine gun. Id. at 602–03. Unbeknownst to the defendant, his semiautomatic

rifle had been modified to enable automatic fire. Id. at 602–03. The defendant

asserted that he never fired the gun automatically, and therefore, did not know that

his weapon required Title II registration. Id. This Court recognized that Congress’s

silence regarding mens rea “by itself does not necessarily suggest that Congress

intended to dispense with a conventional mens rea element.” Id. at 605.

This Court distinguished Freed and Balint noting that guns, unlike grenades

and narcotics, are not inherently dangerous. Id. at 614–15. First, guns, that are

not considered Title II weapons, have a longstanding tradition of lawful ownership.

Id. at 611. Second, a gun, unlike other weapons, could easily become a machinegun

with simple “wear and tear” or “internal modification.” Id. at 615. Thus, a gun may

implicate the NFA with “no externally visible indication that it is fully automatic.”

Id. Third, the harsh potential penalty of up to ten years of imprisonment for merely

failing to register favored a mens rea component. Id. at 616–17. For these reasons,

  22

the Court held that an individual possessing machinegun must necessarily know

that his weapon constitutes a statutorily defined “firearm.” Id. at 619.

However, the Staples Court declined to adopt “a definitive rule of

construction.” Id. at 618–19. Instead, this Court emphasized that their “holding

was a narrow one” premised on “a commonsense evaluation of the nature of the

particular device or substance Congress has subjected to regulation and the

expectations that individuals may legitimately have in dealing with the regulated

items.” Id. at 619. Therefore, this Court’s precedent supports adopting a mixed

motive standard that does not consider intent if the device is “inherently

dangerous,” and considers some level of intent if the device has legitimate uses.

C. Sufficient Evidence Supports Petitioner’s Conviction Under Section 5845(f)(3) Because She Possessed All the Components Necessary to Readily Assemble a Destructive Device.

The evidence, viewed in the light “most favorable to the Government,” is

sufficient to uphold Petitioner’s conviction under the mixed motive standard.

United States v. Markley, 567 F.2d 523, 526 (1st Cir. 1977) (applied to destructive

devices). Petitioner possessed a destructive device under either an objective or a

subjective standard because the mixed motive test encompasses both inquiries.

First, the Court looks to the “objective characteristics of the device or its

components.” See Tankersley, 492 F.2d 962 at 966; Johnson, 152 F.2d 618 at 627.

“If the objective design of the device or component parts indicates that the object

may only be used as a weapon, i.e., for no legitimate social or commercial purpose,

then the inquiry is at an end and subjective intent is not relevant.” Id. at 628. In

  23

this case, Petitioner’s components objectively had no legitimate social purpose; the

combination of a 3D-printed cylinder, hairspray, and matches could only be a

primitive pipe bomb. See R. at 18.

Second, if the unassembled parts form an object with both legitimate and

illegitimates uses, “then intention to convert the components into the ‘destructive

device’ may be important.” Tankersley, 492 F.2d 962 at 966 (citing Posnjak, 457

F.2d 1110 at 1119) (emphasis added). Intent, however, is but one factor in this

analysis. This Court should look to the totality of the circumstances and uphold the

jury’s finding given Petitioner’s intent, her terrorist sympathies, and her propensity

for subversion. R. at 17–20; see United States v. Price, 877 F.2d 334, 337 (5th Cir.

1989) (On review, courts must “draw[] all reasonable inferences and make[] all

credibility choices which support the jury’s verdict.”). Accordingly, no matter the

standard applied, Petitioner possessed a destructive device under Section 5845(f)(3).

1. Looking to the objective characteristics of the device, Petitioner possessed a destructive device because the components in her luggage, when combined, had no legitimate social or commercial purpose, and were capable of exploding.

Petitioner’s objects had no legitimate social purpose and constitute a “bomb”,

under Section 5845(f)(1)(A), or a “similar device,” under (F). When a combination of

objects has no legitimate purpose, intent is irrelevant. See, e.g., United States v.

Urban, 140 F.3d 229, 234 (3d Cir. 1998) (“[I]ntent to use the components as a

weapon (to assemble them into a device to be used as a weapon) is irrelevant when

the parts are clearly designed to be used in constructing a device which is

specifically regulated by Section 5845(f)(1) or (2).”). Thus, all that was needed to

  24

implicate Petitioner under Section 5845(f)(3) was a finding that she possessed

dangerous items with no legitimate use. See Ragusa, 664 F.2d at 699 (The NFA’s

emphasis on unlawful possession, rather than the use of the device “suggests that

the possessor need not use the firearm in the commission of any particular sort of

crime to be in violation of the statute.”).

a. Petitioner’s intent is irrelevant because the 3D-printed cylinder is designed for use as a weapon.

Objectively, Petitioner’s suitcase components, which included the cylinder,

hairspray, and matches, have no purpose but to be used as an explosive. 4 Initially,

Mr. Triton agreed to print the cylinder because it “could be useful for his firearm

tests.” R. at 10. Petitioner stated that the cylinder with the attached raft “looked

like a trophy.” To an objective person, like Officer Smith or the members of the

jury, the cylinder may look more like the main component of a pipe bomb than a

trophy. See R. at 10; Appendix B. Moreover, the raft, which is usually removed

from 3D-printed objects, would stabilize a makeshift explosive. R. at 10. Thus, the

3D-printed cylinder was designed and fabricated to be a weapon, and had no use

other than to be an explosive device. See United States v. Pearce, 86 F. App'x 919,

921 (6th Cir. 2004) (“[T]he word ‘designed; in this context refers to the objective,

physical structure or method of operation and not to the intent or schemes of the

possessor.”).

The composition of Petitioner’s 3D-printed cylinder demonstrates its

potential danger. Courts have concluded that homemade bombs comprised out of

                                                                                                               4 Respondent argues Borne possessed components to make a primitive pipe bomb.

  25

plastic containers or objects can be “destructive devices.” See United States v.

Hedgcorth, 873 F.2d 1307, 1312 (9th Cir. 1989) (plastic water jugs); United States v.

Buchanan, 787 F.2d 477, 479 (10th Cir. 1986) (plastic milk container). Here, the

cylinder was made of a stronger thermo plastic5 than other plastics, making it more

analogous to steel pipes. See United States v. Worstine, 808 F. Supp. 663, 667 (N.D.

Ill. 1992) (holding that a steel pipe bomb was a “destructive device” but a brittle

PVC pipe was not because its potential explosion would yield a low risk of injury).

Finally, Petitioner could readily assemble these components as everything

was in her luggage and she had the wherewithal to do so. R. at 17–18. This finding

is all that is needed to convict her. See, e.g., United States v. Campbell, 685 F.2d

131, 132 (5th Cir. 1982) (A destructive device falls within the NFA regardless of

whether “the homemade destructive device is easily transported or one of a

dispersed nature, assembled on particular premises to accomplish their ruin.”);

United States v. Uzenski, 434 F.3d 690, 702–03 (4th Cir. 2006) (“[T]he Government

need only show that the components of the device could be ‘readily assembled’ into a

bomb.”). Because the suitcase components had no legitimate social purpose, and

because Petitioner could readily assemble the components, this Court should find

she possessed a destructive device, irrespective of any intent.

                                                                                                               5 Mr. Triton used commercially available 3D plastic filament to create the cylinder. R. at 10. 3D printed plastic can withstand up to 450 degrees Fahrenheit whereas PVC pipes can only be used to withstand 140 degrees Fahrenheit, thus making it a stronger, more likely to withstand pressure and create an explosion. See http://3dprintingforbeginners.com/filamentprimer/.

  26

b. The ballistics expert’s testimony provided sufficient evidence for Petitioner’s conviction.

The Government’s expert testimony showing these materials make a bomb is

sufficient to support the jury’s finding that Petitioner possessed a destructive

device. Expert testimony is often the linchpin of the “destructive device” analysis.

See generally United States v. Rushcamp, 526 F.2d 1380, 1382 (6th Cir. 1975);

Johnson, 152 F.3d at 618. In Johnson, the defendant placed a fuse, dark powder,

nails, candles, and a plastic pipe into a store bag as a hoax. Id. at 620. At trial,

defendant presented expert testimony that the devices were not designed as

weapons. Id. at 621. Specifically, the fire powder in the device would not burn

rapidly enough and the pressure was too low to explode. Id. at 621. The

government’s expert disagreed. Id. at 622. The expert indicated that the fire

powder could burn violently in the open and could produce an explosion given

proper containment. Id. at 622. The jury weighed the evidence and convicted the

defendant of possessing a destructive device based on the combination of parts. Id.

The Seventh Circuit upheld the conviction, finding that the district court did not err

“in its decision to exclude evidence of the defendant's actual intent in making the

devices.” Id. at 628. Rather, the “objective characteristics of these devices indicated

that they were useful only as weapons.” Id.

Here, the FBI ballistics expert testified and demonstrated that “the contents

of Petitioner’s weapons could be used to make a bomb.” R. at 18. Petitioner failed

to offer rebutting expert testimony. And, the jury was in the best position to

evaluate the evidence. See United States v. Spoerke, 568 F.3d 1236, 1247 (11th Cir.

  27

2009) (“The jury was free to credit the testimony of the government's expert and

discredit the testimony of [defendant’s evidence].”) Thus, this Court, like the

Johnson court, should defer to the jury’s reliance on the Government’s expert

testimony and uphold Petitioner’s conviction.

2. Even if the 3D parts and plans have a legitimate social purpose, these items are destructive devices given Petitioner’s terrorist sympathies, influential affiliates, and scientific acumen.

Even considering Petitioner’s subjective intent, this Court should not reverse

both lower courts because the jury based their finding on the totality of all the

circumstances. These components and Petitioner’s behavior—in isolation—may

seem innocuous. However, under the totality of the circumstances, the jury

concluded that Petitioner’s actions painted a far more devious picture. Accordingly,

Petitioner possessed two “destructive devices”: (1) a primitive pipe bomb and (2) an

exploding device comprised of the gun plans and filament formula.

a. Taken as a totality, the components found in Petitioner’s suitcase constituted a destructive device.

To the extent that this Court finds that the 3D plastic cylinder and other

components have any legitimate social purpose, thereby making Petitioner’s

subjective intent relevant, this Court should not reverse Petitioner’s subjective

intent demonstrate that the components constituted a destructive device

Petitioner’s terrorist activities, third party affiliates, and the ease of assembling the

device weigh in favor of determining liability under Section 5845(f)(3).

  28

i. Petitioner’s terrorist allegiances are evidence of her liability under Section 5845(f)(3).

Petitioner’s terrorist sympathies support the jury and expert’s finding that

her suitcase components are a destructive device. See, e.g., United States v.

Worstine, 808 F. Supp. 663, 670 (N.D. Ind. 1992) (considering defendants’ terrorist

affiliations in destructive device analysis and finding that components were not a

destructive device because defendants were not associated with a terrorist

organization). Petitioner is fascinated with Dixie Millions—a designated FTO—and

testified that she “thought it would be pretty cool if [her teacher] was Dixie.” R. at

17.

Moreover, Petitioner wanted Mr. Allen, the founder of Dixie Millions, to be

her mentor. R. at 12. She spent an entire month researching on the Darknet so

that should could meet him and impress him with the cylinder. R. at 12. She also

expressed interest in general hacking, terrorist activities and a specific admiration

for “white hat” hacking. R. at 12. This highly relevant information speaks to

Petitioner’s subjective state of mind. Accordingly, because potential terrorists often

exhibit ideological motivation, a rational fact-finder could use this evidence to

support the finding that Petitioner possessed a destructive device. See Luis de la

Corte, Explaining Terrorism: A Psychosocial Approach, PERSPECTIVES ON

TERRORISM, Vol. 1, No. 2 (2007) available at http://www.terrorismanalysts.com

/pt/index.php/pot/issue/view/2. (“[S]ome common psychological attributes among

terrorists are a lack of empathy with their victims, dogmatic or ideological

mentality, or a simplistic or utopian worldview”).

  29

ii. Third party intent is evidence of Petitioner’s liability under Section 5845(f)(3).

In addition, third party intent can be imputed to Petitioner. See United

States v. Blackwell, 946 F.2d 1049, 1054 (4th Cir. 1991) (concluding the “requisite

intent is present when the individual who possesses the component parts intends

that a third party will use the components”). Petitioner planned to give the 3D

cylinder, curve code, and other items to Mr. Allen. R. at 12. Thus, as Mr. Allen is

one-half of the designated FTO Dixie Millions, a jury could reasonably look to Mr.

Allen’s potential nefarious uses of the destructive device components.

Furthermore, Mrs. Ascot, the highly suspected counterpart of Dixie Millions,

was intimately involved in creating the cylinder code. R. at 13. Mrs. Ascot

encouraged Petitioner to bring the code to Azran knowing that Petitioner would be

near Mr. Allen. R. at 9. In addition, Mr. Triton, who worked for a major weapons

manufacturer, printed the cylinder because it “would be useful for his firearm

tests.” R. at 10. Thus, the jury could impute Mrs. Ascot’s and Mr. Triton’s

motivation for the design and fabrication of the 3D-printed parts in concluding that

Petitioner possessed a destructive device.

iii. The timing and circumstances of Petitioner’s arrest are evidence of Petitioner’s liability under Section 5845(f)(3).

Petitioner was arrested on the way to the airport with plans to meet a foreign

terrorist. R. at 15. This is yet another relevant factor in this Court’s totality of the

circumstances analysis. See Worstine, 808 F. Supp. at 670 (acknowledging the time

of year the components were found – around the Fourth of July – to support

  30

defendant’s excuse that he used PVC pipe bombs for fireworks). Specifically, Officer

Smith found Petitioner in possession of these weapons knowing that she was on her

way to the airport. R. at 15. See generally United States v. Aukai, 497 F.3d 955,

962 n.6 (9th Cir. 2007) (September 11, 2001 “required a fundamental change in the

way [the United States] approaches the task of ensuring the safety and security of

the civil air transportation system.”). Furthermore, just the week before

Petitioner’s arrest and flight, the FBI notified police that Mr. Allen’s associate was

living in Harrisburg. R. at 15. Given that she was en route to the airport and the

looming terrorist presence in Harrisburg, a jury could rely on of these temporal

elements as evidence that her components were for a destructive purpose.

iv. The ease of assembly is evidence of Petitioner’s liability under Section 5845(f)(3).

Finally, Petitioner could assemble the pipe bomb in a matter of minutes.

Petitioner possessed everything required to build a pipe bomb “in short order.”

United States v. Price, 877 F.2d 334, 336–37 (5th Cir. 1989). Thus, the Government

need not prove she necessarily knew how to make the destructive device. Id. Even

if the bomb was not readily convertible, Petitioner possessed the wherewithal to

either know it, or learn it within it minutes, and thus the device is still readily

assembled. See, e.g., United States v. Greer, 404 F.Supp. 1289 (W.D. Mich. 1975),

aff'd, 588 F.2d 1151 (6th Cir. 1976) (finding possession of a destructive device where

the explosive and detonator were present but not the intended source of power to

activate the device because the statute only requires “an association of the

  31

components of a destructive device, capable of being converted into a destructive

device . . . not an actual union of parts in an assembled device.”)

b. The gun plans are a destructive device.

The 3D gun plans along with Ms. Triton’s chemical formula, create an

explosive device that causes substantial bodily harm. R. at 18. The expert

testimony demonstrated the gun would explode when fired, thus coming within the

ambit of subsection (2) of Section 5845’s proscription of “any weapon . . . which may

be readily converted to, expel a projectile by the action of an explosive or other

propellant, the barrel or barrels of which have a bore of more than one-half inch in

diameter.” 6 At this stage in technology, it is common for a 3D printed gun to

explode. See http://www.forbes.com/sites/an dygreenberg/2013/11/14/3d- printed-

gun-stands-up-to-federal-agents-testfiring-except-when-it-explodes-video/) While

Petitioner did not carry these plans in on her person, she could obtain them easily.

First, Mr. Triton, uploaded gun plans on a golden USB and intended to gift the USB

to Petitioner and Ms. Triton as a “going away present.” R. at 13. In addition, Ms.

Triton, Petitioner’s soon-to-be roommate possessed the plastic filament formula in

her luggage on the way with Petitioner to Azran. R. at 12. See United States v.

Ragusa, 664 F.2d 696, 701 (8th Cir. 1981) (circumstantial evidence “could support a

finding of possession”). Thus, Petitioner had ready access to the plans. See, e.g.

United States v. Strache, 202 F.3d 980, 986 (7th Cir. 2000) (holding that while the

                                                                                                               6 The record is silent as to how the FBI ballistics tested the gun and plastic filament plans. See R. at 18.

  32

destructive device was partially completed, it only needed gun powder and a fuse

both of which were plenty in defendant’s room).

Most importantly, Petitioner posted online that she wished “all guns would

blow up,” which a reasonable trier of fact could credit as a propensity for violence

and exploding guns. Lastly, while Respondent concedes the guns plans and the

plastic filament in itself are not capable to create a weapon, all Petitioner needed

was a 3D printer she was already familiar with and other easily bought materials.

See generally United States v. Melancon, 462 F.2d 82, 95 (5th Cir. 1972) (holding

that although defendant possessed a mortar, the fact it had no ammunition and

such ammunition was not readily available to him did not “render the weapon

nonexistent”).

Moreover, the fact that the device would self-explode and harm the user does

not exempt it from the statute, especially in the ever-growing threat of suicide

bombings. See http://www.haaretz.com/israel-news/.premium-1.635193 (number of

suicide bombs has increased 94%); See also United States v. Uzenski, 434 F.3d 690,

703 (4th Cir. 2006) (upholding conviction of possession of destructive device even

when expert’s conceded that the possessor could be injured while constructing the

device’s components) (emphasis added). Thus, while generally gun ownership is not

per se illegal, explosive devices, from whatever source, are clearly proscribed under

Section 5845. See also United States v. Graziano, 616 F. Supp. 2d 350, 359

(E.D.N.Y. 2008) aff'd, 391 F. App'x 965 (2d Cir. 2010 (“it is not critical that a bomb

contain explosives, but rather that it be capable of exploding”).

  33

Today’s national security threat of modern terrorism is not fought with

readily observable military machinery. Rather, the advent of homegrown weapons

and new technology allows individuals to create concealable destructive devices that

are capable of substantial harm. Although impressionable youths are often targets

of terrorists to carry out their ends, this does not remove the devices they use from

the ambit of the NFA. To hold otherwise would hamper the Government’s ability to

be combat terrorism by allowing individuals to point to their naivety as an excuse

for possessing weapons that could cause substantial injury and death.

Accordingly, this Court should uphold the jury’s finding, and the Fourteenth

Circuit’s affirmation, because the evidence reasonably demonstrates that Petitioner

constituted a destructive device.

II. PETITIONER CAN BE PROSECUTED UNDER 18 U.S.C. § 2339B BECAUSE § 2339B WITHSTANDS CONSTITUTIONAL SCRUTINY AND BECAUSE MAKING PLANS TO MEET A KNOWN FTO TO PROVIDE COMPUTER CODE IS “MATERIAL SUPPORT” UNDER § 2339B.

Petitioner’s proper conviction sends the cautionary message Congress

intended to communicate by passing Section 2339B. Congress enacted the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) because

“international terrorism is among the most serious transnational threats faced by

the United States.” Antiterrorism and Effective Death Penalty Act of 1996, Sec. 324

Findings, Pub. L. No. 104–132, 110 Stat. 1214 (April 24, 1996). Under Section

2339B, an individual is prohibited from providing or attempting to provide material

support to an FTO when such individual knows the organization is a designated

foreign terrorist organization.

  34

Notwithstanding her conviction, Petitioner petitions this Court to reexamine

the constitutionality of Section 2339B, both facially and as applied. Petitioner’s

First Amendment facial challenge fails because Section 2339B does not proscribe

her or others from advocating for, or associating with, FTOs. Additionally, if this

Court permits a Fifth Amendment challenge sua sponte,7 it should find that Section

2339B is not void for vagueness. Rather, the statute puts a person of ordinary

intelligence, and Petitioner, a person of exceptional intelligence, on sufficient notice

that her acts were prohibited. Petitioner’s as applied challenge also lacks merit.

This Court, less than six years ago, held Section 2339B constitutional as applied to

plaintiffs who sought to support FTOs using pure speech. See Holder v.

Humanitarian Law Project (“HLP”), 561 U.S. 1, 21 (2010). Given this holding,

Petitioner’s planned meeting with the founder of an FTO with the intent to provide

potentially dangerous code should similarly constitute material support. Lastly, the

Government presented sufficient evidence that a reasonable jury could find

Petitioner guilty under Section 2339B. Accordingly, this Court should uphold the

Fourteenth Circuit Court of Appeals.

                                                                                                               7 Petitioner failed to raise this challenge on either appeal. See R. at 1, 21–24. However, Courts have the “discretion to hear constitutional based arguments on appeal.” Singleton v. Wulff, 428 U.S. 106, 121 (1976). Thus, for purposes of an exhaustive analysis, the Government will engage in a Fifth Amendment discussion.

  35

A. 18 U.S.C. § 2339B Is Constitutionally Valid on Its Face Because It Does Not Chill Freedom of Speech or Association Under the First Amendment Nor Does It Violate Due Process Under the Fifth Amendment.

Petitioner alleges Section 2339B violates her freedom of speech and

association protected by the First Amendment. The First Amendment restricts

Congress from “abridging the freedom of speech.” U.S. Const. amend. I. However,

the Fourteenth Circuit properly adhered to this Court’s recent affirmation of

Section 2339B’s constitutionality. See HLP, 561 U.S. at 20. In HLP, this Court

concluded that Section 2339B was not unconstitutionally vague as applied to

conduct implicating pure speech because it still allowed plaintiffs to advocate for

and associate with FTOs. Id. Thus, Section 2339B does not chill Petitioner’s, or

others’, First Amendment rights. Furthermore, the statute does not implicate Fifth

Amendment due process concerns because it is narrowly tailored, puts defendants

on sufficient notice, and cannot be arbitrarily applied. Thus, these First and Fifth

Amendment challenges, facially and as applied, lack merit.

1. Section 2339B survives Petitioner’s First Amendment facial challenges because it is not unconstitutionally vague or overbroad.

a. Section 2339B’s precise language puts a reasonable

person on notice, and, therefore, does not abridge an individual’s freedom of speech or association.

A law is unconstitutionally vague if a reasonable person cannot tell what

speech is prohibited and what is permitted. See Connally v. General Construction

Co., 269 U.S. 385, 391 (1926). This is so because of the concern that vague laws

restricting speech will chill constitutionally protected speech. See, e.g., NAACP v.

  36

Button, 371 U.S. 415, 433 (1963) (Speech “delicate and vulnerable, as well as

supremely precious in our society . . . [and] the threat of sanctions may deter their

exercise almost as potently as the actual application of sanctions.”).

As an initial matter, Petitioner’s facial challenge to Section 2339B must fail

because “[a] plaintiff who engages in some conduct that is clearly proscribed cannot

complain of the vagueness of the law as applied to the conduct of others.” HLP, 561

U.S. at 18. Thus, because Petitioner engaged in clearly proscribed conduct by

attempting to bring potentially dangerous computer code to an FTO, her facial

challenge must fail. See infra part II.C. However, even if this Court finds that

Petitioner did not engage in clearly proscribed conduct, her facial challenge still

fails because Section 2339B’s precise language provides adequate notice as to what

speech is prohibited, and is, therefore, facially valid.

Petitioner’s First Amendment vagueness challenge cannot succeed under this

Court’s reasoning in HLP, 561 U.S. 1, 21 (2010). There, plaintiffs sought to provide

legal and peaceful advice to two FTOs. Id. at 18. Plaintiffs challenged

Section 2339’s validity, arguing that their lawful, peaceful advice could not

constitute “material support.” Specifically, plaintiffs alleged that the statute

violated the Fifth Amendment because it was too vague and the First Amendment

because it infringed their rights to freedom of speech and association. Id. at 8.

This Court rejected the vagueness challenge as applied to plaintiff’s proposed

action, stating that Section 2339 B “provide[s] a person of ordinary intelligence fair

notice of what is prohibited.” HLP, 561 U.S. 1, 18 (2010) (citing United States v.

  37

Williams, 553 U.S. 285, 304 (2008). The HLP Court also held that the statute did

not violate the First Amendment’s protection of speech because “Congress has

prohibited ‘material support,’ which most often does not take the form of speech at

all.” Id. at 27. Finally, this Court recognized that plaintiffs were still free to

advocate for or speak on behalf of FTOs. Id. Accordingly, the statute was

constitutional.

Plaintiffs in HLP did not facially challenge Section 2339B on First

Amendment vagueness grounds. However, this Court’s Fifth Amendment analysis

necessarily included a review of the statute’s language. Id. This court looked at the

statute’s definitions, and concluded that Section 2339B’s “terms are clear in their

application.” Id. Indeed, Congress explicitly defined “material support” as:

[A]ny property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance [ . . . ] personnel . . .

18 U.S.C. § 2339A(b)(1) (2015). Congress took time to define terms within this

definition. For example, “training” “means instruction or teaching designed to

impart specific skill, as opposed to general knowledge.” 18 U.S.C. § 2339A(b)(2)

(2015). Therefore, Section 2339B, “by its own words,” distinguishes between “mere

advocacy and incitement to imminent lawless action.” HLP, 561 U.S. at 27.

Because Section 2339B specifies what kind of speech is prohibited as “material

support,” a reasonable person should understand what speech is and is not

prohibited based on the language of the statute. Cf. Brandenburg v. Ohio, 395 U.S.

444, 448 (1969) (statute proscribing individuals from advocating or teaching the

  38

duty, necessity, or propriety of violence “as a means of accomplishing industrial or

political reform” was unconstitutionally vague).

b. Section 2339B does not restrict significantly more speech than the Constitution allows to be controlled, and, therefore, is not overbroad.

Any claim that Section 2339B is substantially overbroad because it

unconstitutionally restricts freedom of association is similarly unsupported. A law

is overbroad if it regulates substantially more speech than the Constitution allows

to be regulated. See Broadrick v. Oklahoma, 413 U.S. 601, 615–16 (1973).

Under the First Amendment, “[t]he right of peaceable assembly is a right

cognate to those of free speech and free press and is equally fundamental.” De

Jonge v. State of Oregon, 299 U.S. 353, 364 (1937). Section 2339B does not restrict

this right. Rather, it merely prohibits conduct and speech that would materially

support an FTO. See, e.g., HLP, 561 U.S. at 25 (Section 2339B does not prohibit

independent advocacy or expression of any kind” and “plaintiffs may say anything

they wish on a topic.”); United States v. Taleb-Jedi, 566 F. Supp. 2d 157, 177

(E.D.N.Y. 2008) (holding that Section 2339B does not forbid mere membership and

association with a terrorist group and, therefore, defendant remained free to

sympathize with or advocate in favor of the terrorist organization). Thus, Section

2339B is facially valid because it does not unduly restrict Petitioner’s, or other’s,

freedom to associate with FTOs.

Furthermore, facially invalidating Section 2339B for overbreadth ignores this

Court’s precedent and the Government’s compelling interest in maintaining

  39

national security. In the past, this Court has recognized that when a law will apply

to relatively few situations where speech is constitutionally protected, it should not

be overturned for overbreadth. See, e.g., New York v. Ferber, 458 U.S. 747 (1982)

(upholding a state law prohibiting child pornography although the statute could be

applied to material with serious literary, scientific, or education value). Moreover,

this Court has regarded the overbreadth doctrine as “strong medicine” because

facially invalidating a law permits individuals who otherwise could be

constitutionally punished to go free. Broadrick, 413 U.S. at 613. In this case,

invalidating Section 2339B would endanger the public because the Government

would have no way to lawfully detain terrorist supporters.

2. Section 2339B does not violate the Fifth Amendment’s Due Process Clause because it provides fair notice and is not susceptible to arbitrary enforcement.

Any Fifth Amendment argument Petitioner could raise likewise fails. Under

the Fifth Amendment, “due process of law” must be part of any proceeding that

denies a citizen “life, liberty, or property.” See Const. Amend. V. Petitioner’s due

process rights were not violated simply because a jury convicted her for “making

plans” to supply computer code to an FTO. Rather, a statute violates the Fifth

Amendment’s due process clause if it criminalizes an individual without fair notice

or is susceptible to arbitrary enforcement. See, e.g., Scales v. United States, 367

U.S. 203, 220 (1961); HLP, 561 U.S. at 20. Section 2339B does neither.

  40

a. Section 2339B is not vague, and, therefore provides defendants with fair notice.

This Court has already held that Section 2339B provides defendants with fair

notice. A statute will violate due process if it relies on “wholly subjective judgments

without statutory definitions, narrowing context, or settled legal meanings.” HLP,

561 U.S. at 20. (citations omitted). In HLP, this Court concluded that Section

2339B was not such a statute. Id. After considering the text and Congress’s

frequent amendment, this Court acknowledged that Section 2339B’s terms were

“quite different from the sorts of terms that we have previously declared to be

vague.” HLP, 561 U.S. at 20. Thus, Congress sufficiently specified the meaning of

“material support” to provide a person of ordinary intelligence fair notice that

planning to share valuable computer code with an FTO is a crime.

Moreover, Section 2339B requires that the defendant “knowingly” provide

material support. This knowledge requirement “further reduces any potential for

vagueness.” HLP, 561 U.S. at 17; see also Hill v. Colorado, 530 U.S. 703, 732 (2000)

(noting that statute’s “knowing requirement” protected speakers from inadvertently

violating the statute). Given this threshold requirement, the jury could not convict

Petitioner unless she knew she was dealing with an FTO. Thus, she was protected

from inadvertently violating Section 2339B.

b. Section 2339B does not encourage arbitrary enforcement.

A criminal statute enacted for the purposes of national security is not

unconstitutional because it “could potentially be invoked to reach a large number of

offenders and leaves the decision about who to investigate and prosecute to law

  41

enforcement and prosecutors.” United States v. Ahmed, 94 F. Supp. 3d 394, 410

(E.D.N.Y. 2015). In Ahmed, the court held that Section 2339B’s extraterritorial

provision did not violate due process even though it allowed for defendants to be

prosecuted in the United States for conduct committed abroad. Id. at 410. To

support this holding, the court deferred to Congress’s reasons for passing the

statute and cited the public policy interests of battling terrorism and fostering

international peace. Id.

The mere fact that a statute is designed to give law enforcement broad

discretion is not grounds for finding that it violates due process. Moreover, this

deference does not encourage the government to arbitrarily or discriminatorily

investigate and prosecute defendants. Petitioner’s conviction8 is illustrative.

Courts should analyze the complainant’s conduct in considering whether a law is

vague, and therefore susceptible to arbitrary enforcement. See Hoffman Estates,

Inc., 455 U.S. 489, 495 (1982).

Petitioner’s arrest was not arbitrary; it was based on probable cause. Officer

Smith, a fifteen-year veteran, arrested Petitioner only after he saw, in plain view,

that she had plans to meet Clive Allen the following day. R at 15. Officer Smith

recognized this threat because the FBI had recently sent the Harrisburg Police

Department a memo warning that the “wanted hacker and terrorist, Clive Allen,

was believed to have an associate operating in the Harrisburg area.” R. at 15. This

evidence supported Officer Smith’s probable cause to arrest Petitioner “on suspicion

                                                                                                               8 Petitioner did not appeal her sentencing nor raise an Eighth Amendment challenge.

  42

of aiding and abetting a known fugitive.” R. at 15. Given these circumstances and

Officer’s Smith’s experience, it cannot be said that he arbitrarily arrested

Petitioner. Rather, her attempt to provide support to an FTO, and her allegiance to

protecting a person that the “FBI was nearly certain” to be the FTO’s counterpart

triggered her conviction. Accordingly, Section 2339B does not violate due process.

B. Petitioner’s As Applied Challenge Fails Under Either Intermediate Review or Strict Scrutiny Because the Government Has a Compelling Interest in Preventing Terrorism and this Court Routinely Defers to the Political Branches in Matters of National Security.

a. Intermediate Scrutiny is the proper standard to apply

because Section 2339B criminalized Petitioner’s conduct, not speech.

As a preliminary matter, Petitioner incorrectly argues that her as applied

challenge under Section 2339B should receive strict scrutiny analysis. Although

HLP held that Section 2339B “regulates speech on the basis of its content,” this

Court also noted that the statute “generally functions as a regulation of conduct.”

Therefore, even though this Court ruled that Section 2339B “regulate[d] plaintiffs’

speech to the [terrorist organizations] on the basis of its content” as it applied to the

plaintiffs conduct there, this Court did not impose a per se strict scrutiny standard

of review for all future challenges to the statute. Rather, this Court held that

because the plaintiffs conduct involved “communicating a message” a higher

standard must be applied.

Unlike the plaintiffs in HLP, Petitioner’s actions consisted of far more than a

mere desire to speak with an FTO. Petitioner wanted to give Clive Allen dangerous

code, which has significant value. Additionally, Petitioner did not simply want to

  43

express her advocacy for Dixie Millions as the plaintiffs did in HLP, Petitioner

wanted to mentorship to advance her goals of becoming a hacker herself. Therefore,

Petitioner’s conduct did far more than attempt to “communicate a message” like

plaintiffs in HLP and her challenge to Section 2339B does not warrant applying the

same level of scrutiny.

Intermediate scrutiny ensures that a “content-neutral regulation will be

sustained under the First Amendment if it advances important governmental

interests unrelated to the suppression of free speech and does not burden

substantially more speech than necessary to further those interests.” Turner

Broadcasting System, Inc. v. FCC, 520 U.S. 180, 189 (1997). Given the

Government’s interests to keep sensitive data safe from sophisticated hackers and

to keep readily-manufactured gun designs out of terrorists’ file-sharing databases

are essential to maintain national security, the statute passes the intermediate

scrutiny test with ease.

b. Even if this statute is a content-based regulation of Petitioner’s speech, the statute is narrowly tailored to further a compelling government interest.

Even if this Court chooses to read HLP as an outright rejection of applying

intermediate scrutiny to any case involving the application Section 2339B, the

statute is still constitutional under the first Amendment in its application against

Petitioner under a strict scrutiny standard. This is so because government’s

interest to prohibit aiding FTOs is compelling and Section 2339B has been narrowly

tailored. Indeed, even when Section 2339B reaches conduct that involves

  44

expressing a desire to support an FTO, Congress has drawn a clear enough line to

establish what messages may be communicated to FTOs and what messages cannot.

HLP at 27. In HLP this Court further explained that if the speech to the FTO

“imparts a ‘specific skill’ or communicates advice derived from ‘specialized

knowledge’” then it is prohibited. HLP at 27. Therefore, this Court held that

Section 2339B was narrowly tailored because “Congress ha[d] avoided any

restriction on independent advocacy, or indeed any activities not directed to,

coordinated with, or controlled by foreign terrorist groups.” Id. at 38.

Further, this Court believed 2339B to be narrowly tailored because “Congress

has been conscious of its own responsibility to consider how its actions may

implicate constitutional concerns.” Id. at 36. Indeed, this Court was satisfied with

the care with which Congress crafted Section 2339B for three primary reasons.

First, this Court noted that the statute only applies to foreign terrorist

organizations and expressed its reservations as to whether such a ban would be

constitutional if it applied to domestic organizations. Id. at 36, 39. Second,

Congress added clarity to the statute by providing narrowing definitions of the

terms “training,” “personnel,” and “expert advice or assistance,” as well as an

explanation of the knowledge required to violate Section 2339B.” Id. Third,

Congress has also carefully balanced the interests of creating exceptions to the

support one may provide to an FTO. Id. at 37.

Although the Fourteenth Circuit was correct in identifying Petitioner as a

sympathetic defendant, the court below was perhaps even more correct in

  45

identifying Petitioner as being the primary example of a hacker-terrorist

organization’s prime target for a new recruit. Petitioner may be an impressionable

youth, but she is also an extremely bright and talented youth. Congress foresaw

situations such as this when enacting Section 2339B and decided that the deterrent

value of prohibiting this conduct, and the resulting safety that society secures by

convicting those who engage in this conduct, justifies the statute’s enforcement. See

AEDPA, § 301(a)(7), 110 Stat. 1247, note following 18 U.S.C. § 2339B (Findings and

Purpose).

C. Sufficient Evidence Supports Petitioner’s Conviction Under Section 2339B Because She Attempted to Provide Valuable Property, Expert Advice, and Personnel to an Individual of a Known FTO.

Prosecution under Section 2339B requires three elements. First, an

individual must provide or attempt to provide “material support.” Material support

is any “valuable resource,” and need not be intended to further terrorist activities.

Second, an individual must take a substantial step towards providing the support.

Finally, an individual must know that her efforts support an FTO. Here, the

Government proved all three elements. Further, the jury found, beyond a

reasonable doubt, Petitioner guilty under Section 2339B. R. at 17.

The Central District of New Tejas jury properly convicted Petitioner of

violating Section 2339B because they believed, beyond a reasonable doubt, that she

attempted to provide material support to Clive Allen, the leader of the designated

FTO, Dixie Millions. This conviction was based on sufficient evidence. A review

under the sufficiency of the evidence to support a criminal conviction is not “simply

  46

to determine whether the jury was properly instructed, but to determine whether

the record evidence could reasonably support a finding of guilt beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 318 (1979). Thus, to overturn her

conviction, Petitioner “must establish that after construing the evidence in the light

most favorable to the prosecution, there is an element of the crime of conviction that

no rational jury could have found beyond a reasonable doubt.” United States v. Al

Kassar, 660 F.3d 108, 128 (2d Cir. 2011) (applying the sufficiency of the evidence

standard to a defendant convicted under Section 2339B). Petitioner has not done

so.

The jury rested Petitioner’s conviction on sufficient evidence. Petitioner

planned to give the leader of Dixie Millions valuable resources. Specifically, she

took substantial steps to provide: a highly valuable and potentially dangerous

weapon, by showing him her computer code; expert advice, by demonstrating her

hacker skills; and personnel, by becoming the leader’s mentee. She attempted to do

all this knowing that Dixie Millions was an FTO.

Moreover, Petitioner’s conviction must stand despite her pleas that she

intended only to help Dixie Millions with its “White Hat”9 cyber-activities. R. at 11,

22. However this support is characterized, it is nevertheless prohibited by Section

2339 because it “frees up other resources within the organization that may be put to

violent ends.” HLP, 561 U.S. 1, 30 (2010). To hold otherwise, and allow value-

                                                                                                               9 “White Hat” hackers, as opposed to “Black Hat” hackers, believe that a good hacker should never harm innocent individuals and should only hack systems to expose “flaws and frauds.” R. at 8.

  47

based judgments to enter the material support analysis would essentially remove

the teeth from Section 2339B.

1. Petitioner’s acts leading up to her arrest constitute “material support” as defined by Section 2339B.

Material support includes:

[A]ny property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation . . .

18 U.S.C. § 2339A(b)(1) (2015). (emphasis added). The only items excluded from

this definition are religious materials and medicine. Id.

In HLP, 561 U.S. 1, 30 (2010), this Court held that support for terrorist

activities will not be tolerated, even if the support is solely intended to advance

peaceful or lawful ends. There, American plaintiffs sought to aid “humanitarian

and political activities” of two FTOs with “monetary contributions, other tangible

aid, legal training, and political advocacy.” Id. at 10. Plaintiffs argued that their

humanitarian aid furthered only the FTOs’ legitimate activities, not their terrorist

activities. Id. at 29. Therefore, they contended, their lawful, peaceful aid could not

constitute material support under Section 2339B. Id.

In concluding that plaintiffs provided material support, this Court refused to

examine the plaintiffs’ motives or carve out an exception for aid “furthering

legitimate activities.” Id. Instead, it looked to Congress’s intent when creating

AEDPA, noting that Congress “rejected the view that ostensibly peaceful aid would

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have no harmful effects.” Id. This Court also considered the statute’s legislative

history, and acknowledged that Congress removed an exception for humanitarian

aid from an earlier version of the statute. Id. Thus, a broad reading of

“contribution” best incorporated Congress’s intent to bar any form of material

support furnished to a foreign terrorist organization. Id.

Petitioner’s material support, irrelevant of her intent, fits within Congress’s

intentionally broad definition of “material support.” The proper inquiry is whether

Petitioner’s acts and plans were “valuable resources.” See Holder v. Humanitarian

Law Project, 561 U.S. 1, 30 (2010). In this case, the jury found, beyond a reasonable

doubt, that they were. And the Government presented ample evidence to support

this conclusion.

a. Petitioner’s code is highly valuable, and therefore, constitutes material support.

First, Petitioner intended to give Mr. Allen highly valuable computer code.

R. at 12. Petitioner created this code in a concerted effort with an experienced

chemical engineer for a major weapons manufacturer and a veteran computer

programmer and speculated member of Dixie Millions. R. at 7, 10. Furthermore,

Mr. Triton undertook this endeavor because he “believed he would have an

extremely valuable product, one that might allow him to retire even sooner than he

hoped.” R. at 9.

In addition, this code is capable of and designed to produce 3D printed

“weapons or explosives.” R. at 12. Mr. Allen could use the code to mass replicate

primitive 3D printed pipe bombs, similar to the pipe bomb Petitioner possessed. R.

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at 16. Mr. Allen could, at the very least, sell the code and use the proceeds to

support Dixie Million’s cyber-terrorism. Thus, Petitioner’s code is highly valuable

for whatever uses Dixie Millions may have for it.

b. Petitioner’s programming acumen and expertise constitutes material support.

The lower court properly found that the code, in and of itself, is “material

support.” However, the record indicates other indicia of Petitioner’s intended

material support. Petitioner also attempted to provide material support in the form

of “training” and “expert advice or assistance.” She took ownership of creating the

“curve code” and could have taught Mr. Allen how to create similar 3D-code. R. at

9. Furthermore, Petitioner, unlike the FBI, was able to track down Mr. Allen’s

whereabouts using her “hacker skills.” R. at 11–12. Petitioner intended to impress

Mr. Allen by bringing her code and spreadsheet as evidence of her computer

programming knowledge. R. at 12. Her highly relevant programming expertise

enables her to train Dixie Millions in 3D printing technology and provide advice

about data mining.

Furthermore, Petitioner herself, by virtue of her desire to be mentored and

become a Dixie Millions hacker, is “personnel” under the statute. Under

Section 2339B(h), conspiring “to provide a foreign terrorist organization with 1 or

more individuals (who may be or include himself) to work under that terrorist

organization’s direction” is considered material support. Indeed, Petitioner was

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already under the direction of Mrs. Ascot, the likely “Dixie” of Dixie Millions.10 See

R. at 8–10. After learning about Dixie Millions from Mrs. Ascot, Petitioner’s hoped

to impress Mr. Allen, the founding member of Dixie Millions, so “that he would

agree to mentor her.” R. at 12. Under this mentorship, Mr. Allen could easily direct

Petitioner to use her programming skills to further Dixie Millions’ illicit activities.

Given the vast resources that M.s Borne could have provided value to Dixie

Millions, the jury properly concluded that Petitioner’s acts and plans were “material

support,” and the Fourteenth Circuit properly affirmed her conviction.

2. Petitioner took a substantial step toward providing material support to an FTO by researching Mr. Allen for a month, preparing a spreadsheet to locate Mr. Allen, and planning to give him her code.

Petitioner incorrectly argues that she cannot be prosecuted under Section

2339B because “she has not yet engaged in any criminal act on behalf of Dixie

Millions.” R. at 22. On the contrary, it does not matter whether Petitioner’s plans

came to fruition because Section 2239B criminalizes attempts to provide material

support. See 18 U.S.C. § 2239B (2015). Therefore, Petitioner need only take a

“substantial step” towards providing material support to be liable. She did so by

preparing a detailed spreadsheet of Clive Allen’s whereabouts, planning a specific

date and time to meet him, driving to the airport with the computer code, filament

formula, and gun designs.

                                                                                                               10 For example, when Mrs. Ascot quit playing WOM on April 26, 2012, Petitioner did too despite her long-time enthusiasm for the game. R. at 3, 8. Petitioner, at Mrs. Ascot’s encouragement, intended to pursue “White Hat” hacking at Technical Promises. R. at 11.

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A conviction for attempt only requires “that a defendant took at least one

substantial step toward the commission of the charged crime.” See United States v.

Mehanna, 735 F.3d 32, 53 (1st Cir. 2013) cert. denied, 135 S. Ct. 49 (2014). A

“substantial step” must be “something more than mere preparation, yet may be less

than the last act necessary before the actual commission of the substantive crime.”

United States v. Manley, 632 F.2d 978, 987 (2d Cir.1980).

In United States v. Mehanna, the First Circuit held that the jury properly

inferred that the twenty-one year old defendant took “a very substantial step”

toward providing material support when he flew to Yemen armed with only “the

name of a possible al-Qa’ida liaison.” Mehanna, 735 F.3d 32 at 53 (emphasis

added). Although there was no al-Qa’ida presence in Yemen at the time of

defendant’s trip, the court concluded that factual impossibility was not a defense.

Id. Therefore, defendant’s conduct, regardless of whether he could actually meet

with al-Qa’ida, still constituted a substantial step. Id.

So as here, the jury properly found that Petitioner’s attempt to travel to

Azran and bring the computer code, filament, and gun designs to Clive Allen

constituted a substantial step toward attempting to provide material support to

Dixie Millions. Unlike Mehanna, Petitioner knew with practical certainty and

specificity where Dixie Millions would be on June 5, 2012. R. at 12. She spent an

entire month researching Mr. Allen’s whereabouts on the Darknet. R. at 12. She

created a spreadsheet to track his patterns, and using this data, precisely

pinpointed where he would be. R. at 12. Moreover, she planned to meet him at a

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café near the University of Misthallery campus the very next day she arrived. R. at

12. During that meeting, she intended to give him valuable computer code and

other proof of her hacking credentials. R. at 12. Thus, the jury properly concluded

that Petitioner, much like Mehanna took “a very substantial step” to provide Dixie

Millions with material support.

3. Petitioner knew Dixie Millions was an FTO.

Petitioner’s assertion that she did not possess the specific intent required to

violate Section 2339B ignores this Court’s precedent. Namely, Section 2339B

“conditions liability on a person having knowledge that the relevant organization is

a ‘designated terrorist organization’ or ‘has engaged or engages in terrorist

activity.’” United States v. Farhane, 634 F.3d 127, 135 (2d Cir. 2011), cert. denied

132 S.Ct. 833; see also HLP, 561 U.S. at 3 (holding that “knowledge about the

organization’s connection to terrorism, not specific intent to further the

organization’s terrorist activity,” is mental state required to prove violation of

Section 2339B) (emphasis added).

Here, the evidence was sufficient to support the jury’s finding, beyond a

reasonable doubt, that Petitioner knew Clive Allen was the founding member of

Dixie Millions, a designated terrorist organization. R. at 18. The United States

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Secretary of State declared Dixie Millions an FTO in 2011. 11 R. at 5. Mr. Allen,

who announced he was “Millions,” is necessarily included in this designation. R. at

5; See Mehanna, 735 F.3d at 42 (defendant knew he was acting with an FTO when

he attempted to meet a possible al-Qa’ida liaison). Neither party challenges the

validity of Dixie Million’s FTO designation.12 R. at 5, n.1. Additionally, the record

is silent as to Petitioner’s actual knowledge of this designation, but circumstantial

evidence supports the jury’s finding that Petitioner knew Dixie Millions was an

FTO. Namely, her desire to join Dixie Millions to be a hacker, her conversations

with Mrs. Ascot about Dixie Million’s cyber-terrorism, and her active research on

the Darknet supports the jury’s proper inference that she knew she dealing with an

FTO. R. at 8–12.

Given the Government’s overwhelming evidence supporting Petitioner’s

conviction and viewing it in the light most favorable to the Government, Petitioner’s

sufficiency of the evidence challenge must fail. An individual cannot invoke the

                                                                                                               11 The record is silent as to how Dixie Million’s FTO status was publicized. R. at 5. However, FTO designations are publicly available and frequently updated. See U.S. Dept. of State, Foreign Terrorist Organizations http://www.state.gov/j/ct/rls/other/des/123085.htm (last updated Sept. 3, 2015). Indeed, 8 U.S.C. § 1189 (2015) mandates that the Secretary of the State publish FTO designations in the Federal Register. Assuming Dixie Million’s FTO designation was similarly published, this is sufficient evidence that Petitioner knew she was interacting with a FTO. See Mehanna, 735 F.3d at 42 (defendant had requisite knowledge based on Department of State’s public “Redesignation of Foreign Terrorist Organizations” notice). 12 Petitioner nonetheless lacks standing to challenge the FTO designation for Dixie Millions. See United States v. Warsame, 537 F. Supp. 2d 1005, 1022–23 (D. Minn. 2008). While the relevant fact of an organization’s FTO status Section 2339B is an element the prosecution must prove, the validity of the designation is not. Id.  

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protections of the Constitution when the conduct she wishes to engage in endangers

the very nation this Constitution was meant to protect.

CONCLUSION For the foregoing reasons, this Court should AFFIRM the Fourteenth Circuit

and uphold the district court’s convictions.

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APPENDIX “A”

18 U.S.C. § 5845(f)(3) (2012)

The term “destructive device” means:

(1) any explosive, incendiary, or poison gas

(A) bomb, (B) grenade, (C) rocket having a propellent charge of more than four ounces, (D) missile having an explosive or incendiary charge of more

than one-quarter ounce, (E) mine, or (F) similar device;

(2) any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes; and (3) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subparagraphs (1) and (2) and from which a destructive device may be readily assembled. The term “destructive device” shall not include any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; surplus ordnance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of section 4684 (2), 4685, or 4686 of title 10 of the United States Code; or any other device which the Secretary finds is not likely to be used as a weapon, or is an antique or is a rifle which the owner intends to use solely for sporting purposes.

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APPENDIX “B”

Plastic pipe bomb

Source: http://www.transit101.com/contents.asp?switch=contents&pageControlnumber=-1104110000 3D printed cylinder Designs

Source: http://blog.think3dprint3d.com/2013/10/OpenSCAD-Mendel90-Filament-Holder.html