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 PETITIONER

Team #35 Counsels of Record

NOVEMBER 23, 2015

i

QUESTIONS PRESENTED 1. Do a plastic cylinder, matches, hairspray, and two USB drives containing

3D printer data qualify as a destructive device for purposes of 26 U.S.C. §

5845(f)(3)?

2. Does intent to communicate with an individual member of a terrorist

organization constitute “material support” under 18 U.S.C. § 2339B, when

the intended communication is unrelated to the illegal activities of the

organization?

ii

TABLE OF CONTENTS

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

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

TABLE OF AUTHORITIES ................................................................................ iv

OPINIONS BELOW ............................................................................................. 1

JURISDICTION ................................................................................................... 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ............. 1

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

A. Emmaline Borne and Fiona Triton Apply To Technical Promise ................. 2

B. Clive Allen Releases Documents And Flees To Azran ................................... 2

C. Ms. Borne And Ms. Triton Prepare For Technical Promise .......................... 3

D. Ms. Borne And Ms. Triton Are Arrested Following A Traffic Stop .............. 4

E. Proceedings Below ........................................................................................... 6

SUMMARY OF THE ARGUMENT ..................................................................... 8

A. Application of 26 U.S.C. § 5845(f)(3) ............................................................... 8

B. Application of 18 U.S.C. § 2339B .................................................................... 9

ARGUMENT ....................................................................................................... 10

I. Because They Are Not Objectively Dangerous, The Items Found In Ms. Borne’s Possession Do Not Qualify As “Destructive Devices” Under 26 U.S.C. § 5845(f)(3). ................................................................................... 10

A. This Court Should Use A Purely Objective Test To Determine Whether Ms. Borne Possessed A “Destructive Device.” ............. 12

1. An Objective Test Is Consistent With The Text Of The Act. ...................................................................................... 13

2. An Objective Test Is Appropriate Given The Legislative Intent And History Of The National Firearm And Gun Control Acts. ....................................................................... 17

3. Public Policy Supports An Objective Test. ....................... 19

B. Under An Objective Test, Ms. Borne Was Not In Possession Of A “Destructive Device.” .................................................................... 21

1. The Items In Ms. Borne’s Possession Have Legitimate Social Uses, And Are Not Inherently Dangerous. ............ 22

iii

2. The Items In Ms. Borne’s Possession Could Not Have Been “Readily Assembled” Into A Device Covered By Subsections (f)(1) Or (f)(2)... .............................................. 23

C. Even Considering Subjective Intent, Ms. Borne Did Not Possess A Destructive Device. ................................................................... 26

II. The Fourteenth Circuit Erred In Affirming Ms. Borne’s Conviction Under 18 U.S.C. § 2339b Because The Statute Is Unconstitutional And The Verdict Is Not Supported By Sufficient Evidence. . ............... 29

A. Section 2339B Violates The First Amendment By Criminalizing Protected Speech And Association. .............................................. 30

1. Section 2339B Is Not “Narrowly Tailored” To Address A Compelling Government Interest. .................................... 30

2. Section 2339B Violates The First Amendment Right To Freedom of Association. ..................................................... 33

3. Stare Decisis Does Not Require Continued Reliance On This Court’s Decision In Holder v. Humanitarian Law Project. ................................................................................ 35

B. Section 2339B Is Unconstitutionally Vague As Applied To The Facts Of This Case. ....................................................................... 39

1. Property. ............................................................................. 40

2. Expert Advice Or Assistance. ............................................ 42

3. Service. ............................................................................... 42

4. Personnel. ........................................................................... 43

C. The Jury’s Verdict Must Be Overturned Because It Was Not Supported By Sufficient Evidence. ............................................. 44

1. Due Process Requires That A Criminal Verdict Be Supported By Sufficient Evidence.... ................................ 45

2. The Jury Did Not Have Sufficient Evidence To Find That Ms. Borne’s Actions Were Coordinated Or Directed By Dixie Millions... .................................................................. 47

3. The Jury Did Not Have Sufficient Evidence To Find That Ms. Borne Intended To Provide Material Support To Dixie Millions. .............................................................................. 50

4. The Jury Did Not Have Sufficient Evidence To Find That Ms. Borne Knew Dixie Millions Qualified As A Terrorist Organization. ....................................................................... 53

CONCLUSION ................................................................................................... 55

iv

TABLE OF AUTHORITIES

Supreme Court Cases Brandenburg v. Ohio,

395 U.S. 444 (1969) ..................................................................... 29, 33, 36 Carella v. California,

491 U.S. 263 (1989) ................................................................................. 49 Connally v. General Constr. Co.,

269 U.S. 385 (1926) ................................................................................. 39 De Jonge v. Oregon,

299 U.S. 353 (1937) ........................................................................... 34-35 Food & Drug Admin. v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ........................................................................... 13, 17 First Nat. Bank of Boston v. Bellotti,

435 U.S. 765 (1978) ................................................................................. 31 Garcia v. San Antonio Metro. Transit Auth.,

469 U.S. 528 (1985) ................................................................................. 38 Gentile v. State Bar of Nevada,

501 U.S. 1030 (1991) ............................................................................... 42 Gonzalez v. Raich,

545 U.S. 1 (2005) ..................................................................................... 20 Grayned v. City of Rockford,

408 U.S. 104 (1972) ................................................................................. 40 Griswold v. Connecticut,

381 U.S. 479 (1965) ................................................................................. 33 Holder v. Humanitarian Law Project,

561 U.S. 1 (2010) ............................................................................. passim Holy Trinity Church v. United States,

143 U.S. 457 (1892) ................................................................................. 18 In re Winship,

397 U.S. 358 (1970) ........................................................................... 45, 46 Jackson v. Virginia,

443 U.S. 307 (1979) ............................................................... 29, 44-47, 50 King v. Burwell,

135 S. Ct. 2480 (2015) ............................................................................. 13 Landmark Commc’ns, Inc. v. Virginia,

435 U.S. 829 (1978) ................................................................................. 37 Marks v. United States,

430 U.S. 188 (1977) ........................................................................... 39-40 New York State Club Ass'n, Inc. v. City of New York,

487 U.S. 1 (1988) ..................................................................................... 32 Noto v. United States,

367 U.S. 290 (1961) ................................................................................. 34

v

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) ................................................................................. 38

Pullman-Standard v. Swint, 456 U.S. 273 (1982) ................................................................................. 52

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ................................................................................. 31

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) ............................................................................. 31

Reno v. Am. Civil Liberties Union, 521 U.S. 844 (1997) ................................................................................. 40

Rostker v. Goldberg, 453 U.S. 57 (1981) ................................................................................... 36

Sable Commc’ns. of California, Inc. v. FCC, 492 U.S. 115 (1989) ................................................................................. 31

Sandifer v. U.S. Steel Corp., 134 S.Ct. 870 (2014) ................................................................................ 50

Scales v. United States, 367 U.S. 203 (1961) ..................................................................... 29, 34-36

Sec'y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947 (1984) ......................................................................... 32 n. 4

Staples v. United States, 511 U.S. 600 (1994) ................................................................................. 18

Sullivan v. Louisiana, 508 U.S. 275 (1993) ........................................................................... 47-48

Thompson v. City of Louisville, 362 U.S. 199 (1960) ..................................................................... 45-46, 50

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) ................................................................................. 31

United States v. Morrison, 529 U.S. 598 (2000) ................................................................................. 20

United States v. Robel, 389 U.S. 258 (1967) ........................................................................... 34, 35

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) ................................................................................. 40

Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980) ................................................................................. 32

Virginia v. Black, 538 U.S. 343 (2003) ................................................................................. 30

Woodby v. Immigration & Naturalization Serv., 385 U.S. 276 (1966) ................................................................................. 46

Federal Circuit Court Cases

Al Haramain Islamic Foundation, Inc. v. U.S. Dept. of Treasury,

vi

660 F.3d 1019 (9th Cir. 2011) ................................................................. 37 Nunez by Nunez v. City of San Diego,

114 F.3d 935 (9th Cir. 1997) ........................................................... 32 n. 4 Schad v. Ryan,

671 F.3d 708 (9th Cir. 2011) ................................................................... 51 United States v. Dalpaiz,

527 F.2d 548 (6th Cir. 1975) ................................................................... 11 United States v. Fredman,

833 F.2d 837 (9th Cir. 1987) ............................................................. 22, 26 United States v. Friske,

640 F.3d 1288 (11th Cir. 2011) ............................................................... 51 United States v. Hammond,

371 F.3d 776 (11th Cir. 2004) ................................................................. 22 United States v. Johnson,

152 F.3d 618 (7th Cir. 1998) ................................................................... 22 United States v. Jones,

44 F.3d 860 (10th Cir. 1995) ................................................................... 51 United States v. Jones,

713 F.3d 336 (7th Cir. 2013) ................................................................... 51 United States v. Kim,

435 F.3d 182 (2d Cir. 2006) ..................................................................... 51 United States v. Langan,

263 F.3d 613, 617 (6th Cir. 2001) ........................................................... 25 United States v. Lewis,

787 F.2d 1318 (9th Cir. 1986) ................................................................. 51 United States v. Loud Hawk,

628 F.2d 1139 (9th Cir. 1979) ........................................................... 26-27 United States v. Lussier,

128 F.3d 1312 (9th Cir. 1997) ................................................................. 12 United States v. Malone,

546 F.2d 1182 (5th Cir. 1977) ........................................................... 23-24 United States v. Markley,

567 F.2d 523 (1st Cir. 1977) .............................................................. 11, 25 United States v. McConney,

728 F.2d 1195 (9th Cir. 1984) ................................................................. 52 United States v. McNeill,

887 F.2d 448 (3d Cir. 1989) ..................................................................... 51 United States v. Moreland,

665 F.3d 137 (5th Cir. 2011) ................................................................... 51 United States v. Oba,

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

No. 03-1456, 2004 WL 231779 (6th Cir. Feb. 5, 2004) ........................... 25 United States v. Posnjak,

vii

457 F.2d 1110 (2d Cir. 1972) ........................................... 11, 14-16, 21, 23 United States v. Ragusa,

664 F.2d 696 (8th Cir. 1981) ................................................................... 11 United States v. Spoerke,

568 F.3d 1236 (11th Cir. 2009) ......................................................... 11, 22 United States v. Tresvant,

677 F.2d 1018 (4th Cir. 1982) ................................................................. 46 United States v. Urban,

140 F.3d 229 (3d Cir. 1998) ..................................................................... 11

Constitutional Provisions

U.S. Const. amend. VII ...................................................................................... 44

Federal Statutes

8 U.S.C. § 1182(a)(3)(B)(iii). ............................................................................... 54 8 U.S.C. § 1189. .................................................................................................. 54 18 U.S.C. § 921 et seq. .................................................................................. 10-11 18 U.S.C. § 1113. ................................................................................................ 21 18 U.S.C. § 1117. ................................................................................................ 21 18 U.S.C. § 2339A. ...................................................................... 34, 39, 40, 42, 50 18 U.S.C. § 2339B. ...................................................................................... passim 26 U.S.C. § 5801 et seq. ...................................................................................... 10 26 U.S.C. § 5845(f). ..................................................................................... passim Antiterrorism And Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (1996) ............................................ 37 Foreign Relations Authorization Act, Fiscal Years 1988 and 1989, Pub. L. No. 100-204, 101 Stat. 1331 (1987) ............................................ 54

Other 1 Kirsten M. Koepsel, Data Sec. & Privacy Law § 1:11 (2015) ........................ 28

2A Norman Singer & Shambie Singer, Sutherland Statutory Construction § 47:17 (7th ed. 2015) ............................................................................................ 15

David Cole, The First Amendment’s Borders: The Place of Holder v. Humanitarian Law Project In First Amendment Doctrine, 6 Harv. L. & Pol’y Rev. 147 (2012) ......................................................... 36

Elliot Buckman, Just a Soul Whose Intentions are Good? The Relevance of a Defendant’s Subjective Intent in Defining a “Destructive Device” Under the National Firearms Act, 79 Fordham L. Rev. 563, 586 (2010) ........................................... 17, 19, 21

Erik Luna, The Overcriminalization Phenomenon,

viii

54 Am. U. L. Rev. 703 (2005) .................................................................. 20

Julie R. O’Sullivan, The Federal Criminal “Code” is a Disgrace: Obstruction Statutes as a Case Study, 96 J. Crim. L. & Criminology 643 (2006) ............................................... 20

Kristen A. Nardolillo, Dangerous Minds: The National Firearms Act and Determining Culpability for Making and Possessing Destructive Devices, 42 Rutgers L. J. 511, 521 (2011) ............................................................. 13

Ronald L. Gainer, Federal Criminal Code Reform: Past and Future, 2 Buff. Crim. L. Rev. 45, 78 (1998) ......................................................... 20

S. Rep. No. 1501, 90th Cong., 2d Sess. 24 (1968); 114 Cong. Rec. 26888 (1968) ....................................................................................................... 18

Webster’s Third New International Dictionary (1961) .................................... 41

Webster’s Third New International Dictionary (1971) ........................ 43, 50-51

1

OPINIONS BELOW The majority opinion of the Fourteenth Circuit reversing the district

court can be found at R. 18-24. The dissenting opinion of Judge Morgan can

be found at R. 24-27.

JURISDICTION

The District Court had jurisdiction over this criminal case under 18

U.S.C. § 3231. Following conviction, Petitioner filed a timely appeal to the

United States Court of Appeals for the Fourteenth Circuit, which had

jurisdiction under 28 U.S.C. § 1291. This Court granted Petitioner’s timely

request for a writ of certiorari, giving it jurisdiction under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The First Amendment to the United States Constitution provides, in

relevant part: “Congress shall make no law . . . abridging the freedom of

speech, or of the press; or the right of the people peaceably to assemble.” The

Fifth Amendment provides, in relevant part: “No person shall . . . be deprived

of life, liberty, or property without due process of law.”

18 U.S.C. § 5845(f)(3) defines “destructive device” for purposes of the

National Firearms Act as follows:

“[A]ny 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.”

2

18 U.S.C. § 2339B, entitled “Providing material support or resources to

designated foreign terrorist organizations,” provides, in relevant part:

“Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 20 years . . . To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization . . . that the organization has engaged or engages in terrorist activity . . . or that the organization has engaged or engages in terrorism . . . .”

STATEMENT OF THE CASE

A. Emmaline Borne and Fiona Triton Apply To Technical Promise

Emmaline Borne and Fiona Triton are 17-year-old students at

Harrisburg High School in Harrisburg, New Tejas. R. 2. In the fall of 2011,

Ms. Borne and Ms. Triton applied to participate in Technical Promise, a

pre-college study abroad at the University of Misthallery in Azran. R. 2-3.

Ms. Borne and Ms. Triton were encouraged to apply by their physics

teacher Adalida Ascot. R. 3. Mrs. Ascot met with both girls individually, and

wrote a “glowing recommendation” for each. Due to their shared interest in

computer programming and games, Mrs. Ascot and Ms. Borne grew

particularly close. R. 3-4. Both girls were accepted to Technical Promise on

February 8, 2012. R. 4. Mrs. Ascot was very proud, and told the girls to

bring any projects they were working on to Azran for their professors to

review. R. 9.

B. Clive Allen Releases Documents And Flees To Azran

3

Clive Allen is a former NSA consultant and co-founder of the hacktivist

group “Dixie Millions.” R. 5. On November 22, 2011, Mr. Allen revealed

himself as “Millions” by releasing millions of government documents to the

“Darknet,” an underground Internet used for both legal and illegal purposes.

R. 5. Mr. Allen then left the United States and was granted asylum in Azran.

R. 5-6. The United States Secretary of State declared Dixie Millions a foreign

terrorist organization (FTO) on December 30, 2011. R. 5.

Extradition negotiations proved fruitless, and in March 2012 the

United States decided to let Mr. Allen remain in Azran. R. 6. To this day,

authorities have been unable to identify or locate “Dixie,” the other co-

founder of Dixie Millions. R. 6.

C. Ms. Borne And Ms. Triton Prepare For Technical Promise

In April 2012, Ms. Triton’s father Hershel purchased a 3D printer and

began developing a “better” plastic filament formula. R. 6-7. Ms. Borne

noticed the 3D printer during a sleepover and asked to help solve some of its

software issues. R. 7. Mr. Triton agreed, and Ms. Borne identified a software

error that prevented the 3D printer from printing a perfect curve. R. 7.

Ms. Borne asked Mrs. Ascot to help her fix the software issue. R. 7.

While working together, Ms. Borne and Mrs. Ascot chatted about Mr. Allen

and Dixie Millions. R. 8. Mrs. Ascot expressed admiration for Mr. Allen, and

told Ms. Borne that members of Dixie Millions were “White Hat Hackers.”

4

R. 8. Mrs. Ascot finished fixing the curve formula at home, and gave Ms.

Borne a perfected version on May 1.

Ms. Borne gave Mr. Triton the perfect curve formula on May 2.

Shortly thereafter, Ms. Borne and Mr. Triton designed and printed a model

cylinder to test the formula. R. 10. The cylinder took twelve hours to print,

and Ms. Borne kept the cylinder, attached to its printing platform, as a

“trophy.” R. 10.

Also in May, Mr. Triton found plans to design and print a handgun on

the Internet. R. 9. Believing a handgun would serve as a useful test product

for his formula, Mr. Triton downloaded the plans to a gold USB. R. 9.

Throughout May 2012, Mr. Triton and his daughter worked on

perfecting the plastic filament formula—Ms. Borne was not involved. R. 10-

11. After they hit a roadblock, Ms. Triton offered to bring the project to her

professors in Azran for help. R. 11. Mr. Triton denied this request, but Ms.

Triton secretly downloaded the filament formula to a USB shaped like a

cartoon robot. R. 11.

Around the same time, Ms. Borne began researching Mr. Allen, who

she viewed as a role model. R. 11. Ms. Borne hoped to meet Mr. Allen in

order to get advice on her career path. R. 11. Using the “Darknet,” Ms.

Borne determined that she could find Mr. Allen at a café in Azran on June 5,

and created a reminder on her phone. R. 12.

D. Ms. Borne And Ms. Triton Are Arrested Following A Traffic Stop

5

On June 3, Ms. Borne and Ms. Triton packed for their trip to Azran.

Ms. Triton packed clothes, toiletries, and the aforementioned plastic filament

formula. R. 12. Ms. Borne packed clothes, toiletries, her perfect curve code,

and the cylinder model. R. 12. Ms. Borne hoped to show these items to Mr.

Allen in order to impress him. R. 12. Ms. Borne packed these items in a

duffle bag that her family had used for camping. R. 12.

On the way to the airport, Mr. Triton told the girls he had loaded the

gold USB with music for their trip. R. 13. He plugged the USB into the car

radio, but never gave it to either girl. R. 13.

Two miles from the airport, Officer Smith stopped Mr. Triton for

rolling through a stop sign. R. 13. Officer Smith then realized that Mr.

Triton had an outstanding warrant for failure to pay a speeding ticket, and

placed Mr. Triton under arrest. R. 14-15. While Officer Smith waited for

someone to pick up the girls, he saw a notification on Ms. Borne’s phone that

read “Meet Clive Allen at Café.” R. 15. Officer Smith knew of Mr. Allen, and

arrested both girls on suspicion of aiding and abetting a known fugitive. R.

15.

After obtaining a search warrant, Harrisburg Police found the

following items: (1) the plastic filament formula (in Ms. Triton’s luggage); (2)

matches, hairspray, the 3D cylinder “trophy,” and perfect curve code (in Ms.

Borne’s luggage); and (3) a gold USB containing music and 3D gun plans (in

6

Mr. Triton’s car radio). R. 16. Mr. Triton claimed that he thought he had

deleted the gun plans. R. 16.

E. Proceedings Below

Ms. Borne and the Tritons were indicted for possession of a destructive

under 26 U.S.C. § 5845(f)(3), and for intent to provide material support to a

terrorist organization under 18 U.S.C. § 2339B. R. 16. The Tritons agreed to

plea bargains in exchange for information on Mrs. Ascot and Dixie Millions,

but Ms. Borne proclaimed her innocence and proceeded to trial. R. 16-17.

At trial, the government called an FBI agent specializing in activities

on the “Darknet.” R. 17. The agent testified that Ms. Borne was interested

in meeting Mr. Allen and members of other hacker groups in order to

convince them to not to “exploit bank, financial, and government security

flaws,” given the negative implications of that type of hacking. R. 17. The

record also reflected that the FBI was “nearly certain” Mrs. Ascot was a

member of Dixie Millions, and that some of her past students had been

mistakenly arrested as suspected hackers. R. 17. Ms. Borne testified that

Mrs. Ascot did not identify herself as a member of Dixie Millions or

encourage her to meet with Mr. Allen. R. 17.

The government also called an FBI ballistics expert to testify about the

materials that allegedly constituted a destructive device. R. 18. The expert

testified that the plastic filament formula, used to print a handgun, would

cause the gun to explode when fired, injuring the user and those in close

7

proximity. R. 18. The expert also testified that an individual could use the

hairspray, matches, and cylinder “trophy” to make a bomb. R. 18. The

government also introduced tweets from Ms. Borne’s Twitter account. R. 18.

One tweet, in the wake of the gun-related death of a classmate said, “With

one wish, I wish all guns would blow up. #guncontrol.” R. 18. Ms. Borne

also retweeted articles in support of Dixie Millions. R. 18. Based on this

evidence, Ms. Borne was convicted of both charges in the United States

District Court for the Central District of New Tejas. R. 18.

Ms. Borne timely appealed her conviction to the United States Court of

Appeals for the Fourteenth Circuit. R. 2. First, Ms. Borne challenged her

conviction under Section 5845(f)(3) on grounds that the district court applied

the incorrect standard to determine whether the materials in her possession

were destructive devices. R. 18. The Fourteenth Circuit disagreed, holding

that a mixed test was appropriate in order to “prevent the ambiguities of a

purely objective test or the limitations of an objective standard.” R. 19.

Ms. Borne also challenged her conviction under Section 2339B, arguing

that the statute was unconstitutional both on its face and as applied. R. 21.

The Fourteenth Circuit rejected both challenges, holding that Holder v.

Humanitarian Law Project was controlling and that the statute’s provisions

were sufficiently precise as applied. R. 21. The Fourteenth Circuit also held

that Ms. Borne intended and conspired to materially support Dixie Millions.

R. 22-23.

8

Ms. Borne then filed a petition for a writ of certiorari, which was

granted by this Court. R. 1.

SUMMARY OF THE ARGUMENT A. Application of 26 U.S.C. § 5845(f)(3)

Ms. Borne’s conviction under Section 5845(f)(3) should be reversed for

two reasons. First, the Fourteenth Circuit applied the wrong standard to

determine whether the items in Ms. Borne’s possession were destructive

devices. Second, the Fourteenth Circuit erred because under any test, the

items were not destructive devices.

This Court should apply an objective test to determine whether items

constitute a “destructive device” under Section 5845(f)(3). Reading

subsection (f)(3) in its entirety and in the context of Congress’ regulatory

scheme shows that an objective test is appropriate. A purely objective test

also prevents a regulatory loophole and absurd results. Additionally, the

legislative history of the National Firearms Act supports application of an

objective test. As demonstrated by congressional testimony and the Act’s

popular name, the Act was only intended to prohibit inherently dangerous

weapons. Finally, an objective test should be applied for public police

reasons, since an objective test is more judicially administrable, does not

impermissibly expand the scope of federal criminal law, and adequately

protects Americans.

9

Under any test, however, the items in Ms. Borne’s possession were not

destructive devices. Applying an objective test, the items could not be readily

assembled into a destructive device because Ms. Borne did not possess all the

necessary items and even if she did, she would have been unable to quickly

construct a destructive device. Furthermore, Ms. Borne did not have

subjective intent to use any of the items as a destructive device—the context

of her arrest does not suggest criminal intent, and she provided an innocent

explanation for her possession.

B. Application of 18 U.S.C. § 2339B

The Fourteenth Circuit failed to adequately review the

constitutionality of Section 2339B, and erroneously affirmed Ms. Borne’s

conviction. In seeking to meet and speak with Mr. Allen, Ms. Borne intended

to engage in pure political speech. Section 2339B criminalizes such speech on

the basis of its content, and therefore the statute is subject to strict scrutiny

review. Section 2339B fails strict scrutiny because it criminalizes a wide

swath of lawful advocacy, and therefore is not narrowly tailored to address

the government’s compelling national security interests. The government has

not sufficiently demonstrated why it is necessary to criminalize speech

advocating lawful activity. Furthermore, because Section 2339B criminalizes

association with designated groups without any corresponding intent to

engage in illegal activities, it creates a regime of “guilt by association” and

violates the First Amendment.

10

Additionally, Section 2339B is unconstitutional as applied to Ms.

Borne. Due process requires that criminal provisions be precise enough to

permit a reasonable person to conform their actions to the law. The types of

“material support” laid out in Section 2339B are impermissibly vague

because they do not provide adequate notice of what conduct is prohibited.

Because an objectively reasonable person in Ms. Borne’s shoes would have no

way of knowing that her intended conduct was illegal, application of Section

2339B to these facts violates the Due Process Clause.

Finally, even assuming that Section 2339B is constitutional both on its

face and as applied, the jury’s verdict is not supported by sufficient evidence

on the record and must be overturned. Due process requires that criminal

convictions be based on sufficient evidence to prove every element beyond a

reasonable doubt. In this case, the prosecution did not produce sufficient

evidence to prove that Ms. Borne intended to coordinate with Dixie Millions

or provide the group with material support, or that Ms. Borne knew Dixie

Millions was a terrorist organization under the statute.

ARGUMENT I. BECAUSE THEY ARE NOT OBJECTIVELY DANGEROUS, THE

ITEMS FOUND IN MS. BORNE’S POSSESSION DO NOT QUALIFY AS “DESTRUCTIVE DEVICES” UNDER 26 U.S.C. § 5845(f)(3).

Weapons regulations must not reach further than necessary to ensure

protection of American citizens. The National Firearms Act, 26 U.S.C.

§§ 5801-72 (2012), as amended by the Gun Control Act, 18 U.S.C. §§ 921-31

11

(2012), (collectively “the Act”), imposes registration and taxation

requirements on individuals who possess, transport, import, manufacture,

and deal firearms and destructive devices. The Act defines “destructive

device” to include “any combination of parts either designed or intended for

use in converting any device into a destructive device as defined in

subparagraphs (1) and (2) and from which a destructive device may be

readily assembled.” 26 U.S.C. § 5845(f)(3) (2012) (“subsection (f)(3)”).

There is some disagreement regarding whether courts should consider

subjective intent in determining whether the defendant possessed a

destructive device under subsection (f)(3). Some circuits consider subjective

intent in determining whether items were “designed or intended” to be used

as a destructive device.1 See, e.g., United States v. Spoerke, 568 F.3d 1236,

1247-48 (11th Cir. 2009). However, the First, Second, Third, Fifth, Sixth, and

Eighth Circuits use an objective test that focuses exclusively on whether the

items in the defendant’s possession are objectively destructive by themselves.

See United States v. Urban, 140 F.3d 229, 234 (3d Cir. 1998); United States v.

Ragusa, 664 F.2d 696, 699 (8th Cir. 1981); United States v. Malone, 546 F.2d

1 Even within these circuits there is some disagreement regarding the extent to which subjective intent should be considered. Some circuits use a purely subjective test, which considers at the outset the defendant’s subjective intent in creating the device or possessing the device’s component parts. Other circuits, however, utilize a “mixed test,” which “first objectively looks at whether the device can be used in innocent or destructive ways[, and] [i]f the device is privy to both social and anti-social uses, the subjective intent of the defendant may be considered.” Kristen A. Nardolillo, Dangerous Minds: The National Firearms Act and Determining Culpability for Making and Possessing Destructive Devices, 42 Rutgers L. J. 511, 521 (2011).

12

1182, 1184 (5th Cir. 1977); United States v. Markley, 567 F.2d 523, 527 (1st

Cir. 1977); United States v. Dalpaiz, 527 F.2d 548, 551 (6th Cir. 1975); United

States v. Posnjak, 457 F.2d 1110, 1113-19 (2d Cir. 1972).

In upholding Ms. Borne’s conviction under Section 5845(f)(3), the

Fourteenth Circuit erred in two respects. First, the court erroneously

considered Ms. Borne’s subjective intent in determining whether she

possessed a destructive device. An objective test is compelled by statutory

text, legislative history, and public policy. Second, the court erred by

concluding that a plastic cylinder, hairspray, matches, and two USB drives

constitute destructive devices, even considering subjective intent. This Court

reviews the decision of whether a defendant had the requisite intent to

possess a destructive device de novo. See, e.g., United States v. Lussier, 128

F.3d 1312, 1313 (9th Cir. 1997).

A. This Court Should Use A Purely Objective Test To Determine Whether Ms. Borne Possessed A Destructive Device.

Because Section 5845(f)(3) does not call for consideration of the

defendant’s subjective intent, an objective test is proper. First, an objective

inquiry is compelled by proper interpretation of the language used in

subsection (f)(3). Second, an objective inquiry is consistent with the

legislative intent underlying subsection (f)(3). Finally, an objective inquiry is

most appropriate in light of several public policies relevant to criminal

enforcement of subsection (f)(3).

13

1. An Objective Test Is Consistent With The Text Of The Act.

Various principles of statutory interpretation demonstrate an objective

test is most appropriate. First, Section 5845(f)(3) must be read in context,

and in its entirety. See Food & Drug Admin. v. Brown & Williamson Tobacco

Corp., 529 U.S. 120, 132-33 (2000) (“The meaning—or ambiguity—of certain

words or phrases may only become evident when placed in context.”); see also

King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (stating “our duty, after all, is to

construe statutes, not isolated provisions.”). If subsection (f)(3) criminalized

possession of any item “designed or intended” to be used as a destructive

device, a subjective inquiry might be appropriate. But that is not all that

subsection (f)(3) says—the statute continues that only those items “designed

or intended for use in converting any device into a destructive device as

defined in subparagraphs (1) and (2)” constitute a “destructive device” under

subsection (f)(3). § 5845(f)(3) (emphasis added).

Therefore, a “destructive device” for purposes of subsection (f)(3) is

explicitly limited to those materials that can be “readily assembled” into the

devices already “defined in subparagraphs (1) and (2).” See United States v.

Oba, 448 F.2d 892, 900 (9th Cir. 1971) (Browning, J., dissenting).

“[S]ubparagraph [(f)](3) itself does not bring any device within the statute;

instead it brings within the statute a collection of parts from which a device

may be assembled.” Id. Courts agree that subsections (f)(1) and (f)(2) are

purely objective. Nardolillo, Dangerous Minds, supra, at 520. The addition of

14

the word “intent” in (f)(3) does not demand consideration of subjective intent

given the subsection’s proximity to two other objective provisions. Otherwise,

the subjective intent of the possessor, on its own, could “transform” any item

into a destructive device, despite the limited and objective nature of the

statute as a whole. See Posnjak, 457 F.2d at 1117-18.

Because subsection (f)(3) is limited to components that, readily

assembled, would create one of the objectively dangerous devices already

defined in subsections (f)(1) and (f)(2), the defendant’s subjective intent is

irrelevant. The only relevant inquiry is whether the components are

objectively capable of creating a device that would be covered by the earlier

subsections.

This interpretation is consistent with Congress’ purpose in enacting

subsection (f)(3) in the first place—preventing a regulatory loophole whereby

disassembled devices covered by subsections (f)(1) and (f)(2) would escape

punishment. See Posnjak, 457 F.2d at 1116; Oba, 448 F.2d at 900 (Browning,

J., dissenting) (finding subsection (f)(3) “forecloses a means of easy evasion by

making it clear that the statute covers only the completed devices [in

subsections (f)(1) and (f)(2)] but also any collection of parts from which those

same devices may be assembled”). Subsection (f)(3) was never intended to

“broaden the group of devices which are covered; it merely precludes evasion

through possession of the unassembled components instead of the assembled

item.” Posnjak, 457 F.2d at 1116.

15

Limiting the scope of subsection (f)(3) to components that may be

readily assembled into devices in subsections (f)(1) and (f)(2) prevents absurd

results. Subsections (f)(1) and (f)(2) include devices that have no permissible

social use—devices where the “risk of anti-social use . . . [is] inherent in the

articles or in any suitability they had for conversion to a non-industrial

weapon.” Posnjak, 475 F.2d at 1119. A similar limit must be imposed on

subsection (f)(3) as well, or else the statute would criminalize possession of

virtually any item or combination of items. Where all that is necessary is the

“perversion of its purpose,” even a “parked motor . . . can be made a lethal

weapon.” Oba, 448 F.2d at 896 (Browning J., dissenting).

Unquestionably, subsection (f)(1)’s list of destructive devices is not

exhaustive. See § 5845(f)(1) (criminalizing possession of “similar devices” to

those listed). But subsection (f)(1)’s “similar devices” language still

substantially limits subsection (f)(3)’s reach. The ejusdem generis canon of

statutory interpretation requires that a general term be interpreted in light

of the more specific terms that precede it. See 2A Norman Singer & Shambie

Singer, Sutherland Statutory Construction § 47:17 (7th ed. 2015). Subsection

(f)(3) is explicitly limited to “device[s] defined in subparagraphs (1) and (2)”

and “similar devices.” Because all of the devices defined in Subsections (f)(1)

and (f)(2) are objectively dangerous, and because the “similar device”

language must be interpreted in light of that fact, it follows that a “similar

device” must also be objectively dangerous. See Posnjak, 457 F.2d at 1116.

16

Interpreting the “similar device” language to broadly expand the types of

items covered by subsection (f)(3) would obviate that explicit limitation.

The affirmative defense to possession of a destructive device—that the

device was “neither designed nor redesigned as a weapon”—does not change

the objective nature of subsection (f)(3). See § 5845(f)(3). At most, the

affirmative defense “means that an intention not to use a device as a

weapon excludes that device from the Act,” even if it would otherwise qualify.

Oba, 448 F.2d at 904 (Browning, J., dissenting). However, that does “not

support the . . . proposition that an intention to use a device as a weapon

would subject that device to the Act” if it would not otherwise qualify.2 Id.

Furthermore, limiting subsection (f)(3) to objectively destructive items

is consistent with the principle of interpreting criminal statutes narrowly.

“[I]t is a well-established principle that criminal statutes are to be narrowly

rather than expansively construed, in order to avoid [punishing] any

activities and individuals the legislature did not mean to expose to liability.”

Posnjak, 457 F.2d at 1118 (citing United States v. Bass, 404 U.S. 336, 351

(1971)). The objective test is narrow because it limits subsection (f)(3)’s

application to only those items that are destructive or can be readily

2 Further, reading the affirmative defense to create an “intent” exception to subsection (f)(3) would create serious Fifth Amendment self-incrimination problems. An intent requirement would obligate a possessor or transferor to register a device only if he intended to use it destructively, which would necessarily require “present[ing] intention to commit a criminal act.” Such a requirement clearly violates the right against self-incrimination. See Oba, 448 F.2d at 904 (Browning, J., dissenting).

17

assembled into something destructive, without regard to the defendant’s

subjective intent. A subjective inquiry would improperly expand “destructive

device” to reach devices beyond those included in subsections (f)(1) and (f)(2)

and beyond those Congress intended to criminalize.

Finally, subsection (f)(3)’s “destructive device” language should be

interpreted in the context of all of Congress’ weapons regulations. A court

must “interpret the statute as a symmetrical and coherent regulatory scheme

and fit, if possible, all parts into a harmonious whole.” Brown & Williamson,

529 U.S. at 133 (internal quotation marks and citation omitted). Section

5845(f) is only one part of a wide-ranging weapons regulatory scheme. In

passing the Firearm Owners’ Protection Act, another part of the weapons

regulatory scheme, Congress added scienter requirements to related firearms

regulations. See 18 U.S.C. § 922, 924. However, Congress did not add

mental state requirements to the National Firearms Act. See Elliot

Buckman, Just a Soul Whose Intentions are Good? The Relevance of a

Defendant’s Subjective Intent in Defining a “Destructive Device” Under the

National Firearms Act, 79 Fordham L. Rev. 563, 599 (2010). Because related

weapons statutes specifically address scienter and statutes concerning

similar subject matter should be harmonized, an objective test is likewise

appropriate for subsection (f)(3).

2. An Objective Test Is Appropriate Given The Legislative Intent And History Of The National Firearm And Gun Control Acts.

18

The legislative history of the National Firearm Act, as amended by the

Gun Control Act, demonstrates that Congress intended to limit destructive

devices to objectively dangerous items. The initial statute was spurred by

concerns with organized crime and therefore sought to eradicate the types of

weapons used by gangsters, such as submachine guns and sawed-off

shotguns. See Staples v. United States, 511 U.S. 600, 626 (1994) (“In 1934,

when Congress originally enacted the statute, it limited the coverage of the

1934 Act to a relatively narrow category of weapons . . . characteristically

used only by professional gangsters like Al Capone, Pretty Boy Floyd, and

their henchmen.”). Amendments in 1968 expanded the list of gangster-type

weapons covered by the statute because Congress sought to stop the influx of

military weapons or “weapons of war” following World War II. Oba, 448 F.2d

at 897-98 (citing S. Rep. No. 1501, 90th Cong., 2d Sess. 24 (1968); 114 Cong.

Rec. 26888 (1968) (remarks of Senator Dodd)). Such gangster-type weapons,

military weapons and “weapons of war” are objectively dangerous. Therefore,

Congress consistently intended to prohibit only those weapons that are

objectively dangerous and have no legitimate social use.

The colloquial name for the National Firearm Act at the time of its

passage also sheds light on Congress’ intended purpose for the Act. The title

of a statute may be used to resolve ambiguity and ascertain legislative intent.

Holy Trinity Church v. United States, 143 U.S. 457, 462-63 (1892) (“Among

other things which may be considered in determining the intent of the

19

legislature is the title of the act. We do not mean that it may be used to add

or take from the body of the statute, but it may help to interpret its

meaning.”) (citation omitted). Prior to amendments made in 1968, the Act

was known as the Machine Gun Act. Oba, 448 F.2d at 896 (Browning, J.,

dissenting). This title demonstrates the type of weapons and destructive

devices that the legislature intended to regulate—“weapons of war with no

legitimate social use,” not devices whose ability to harm is unclear. Buckman,

Just a Soul Whose Intentions are Good?, supra, at 599.

This legislative history also confirms that the parts covered in

subsection (f)(3) are limited to those that can comprise one of the devices

covered by subsections (f)(1) and (f)(2). Because the types of weapons listed

in subsections (f)(1) and (f)(2) are gangster- and military-style weapons, the

component parts covered in subsection (f)(3) must necessarily be able to be

readily assembled into those same types of weapons. In order to be a

destructive device under subsection (f)(3), the ultimately assembled weapon

must have no lawful uses, which is an objective inquiry. See id. at 587.

3. Public Policy Supports An Objective Test.

Several public policies counsel in favor of applying an objective test to

subsection (f)(3). First, an objective test is more judicially administrable.

Because an objective standard does not consider a defendant’s subjective

intent, it is an easier test for judges to apply consistently. Rather than

hypothesizing about a defendant’s subjective intent based on his actions or

20

statements, a judge weighs the easily observable objective characteristics of

the components in the defendant’s possession.

Second, an objective test appropriately limits the scope of federal

criminal law. The federal criminal code is vast and growing. See generally

Julie R. O’Sullivan, The Federal Criminal “Code” is a Disgrace: Obstruction

Statutes as a Case Study, 96 J. Crim. L. & Criminology 643 (2006). Indeed,

commentators and judges have criticized the code for criminalizing too many

actions. See Gonzalez v. Raich, 545 U.S. 1, 66 (2005) (noting that federal

laws have “encroached on State’s traditional police powers”); United States v.

Morrison, 529 U.S. 598, 636 n.10 (2000) (noting the Justices have “repeatedly

argued against federalization of traditional state crimes); Erik Luna, The

Overcriminalization Phenomenon, 54 Am. U. L. Rev. 703 (2005).

Overcriminalization is problematic because it “erodes the respect for, and

hence the deterrent impact of, the criminal law generally.” Ronald L. Gainer,

Federal Criminal Code Reform: Past and Future, 2 Buff. Crim. L. Rev. 45, 78

(1998). Narrowly defining “destructive device” is consistent with limiting

federal criminalization to those actions that are most egregious and

deserving of federal attention. In fact, given the already broad regulatory

scheme applying to weapons, it is “not surprising . . . to find that the National

Firearms Act applies only to two narrow, precisely defined groups of highly

dangerous weapons which Congress thought to be, in themselves, so

21

amenable to antisocial use by private parties as to justify the strict

regulation.” Oba, 448 F.2d at 897 (Browning, J., dissenting).

Finally, an objective test adequately protects Americans. Because an

objective test captures inherently dangerous materials, subjective intent

would only be necessary to criminalize the conduct of a person who intends to

create a dangerous device but is caught before doing so. However, the

definition of destructive device need not be manipulated to include subjective

intent in order to criminalize this conduct and protect Americans because

other statutes reach this conduct. See 18 U.S.C. § 1113 (attempted murder);

18 U.S.C. § 1117 (conspiracy to commit murder).

B. Under An Objective Test, Ms. Borne Was Not In Possession Of A Destructive Device.

Applying an objective test to the facts of this case, it is clear that Ms.

Borne did not possess a “destructive device” under Section 5845(f)(3). An

objective test ignores the defendant’s subjective intent and imposes liability

only when the defendant possesses items that, taken together, are

intrinsically dangerous and have no legitimate social use. See, e.g., Posnjak,

452 F.2d at 1114-19. Under an objective standard, “a defendant's subjective

intent could not render ‘destructive’ a device that otherwise would not fall

under [Section] 5845(f).” Buckman, Just a Soul Whose Intentions are Good?,

supra, at 586.

At trial, Ms. Borne was convicted of possession of two disassembled

destructive devices under subsection (f)(3). The first device was comprised of

22

matches, a plastic cylinder, and hairspray. The second device was comprised

of a gold USB device with a digital formula for a gun and a robot-shaped USB

drive with a formula for a plastic filament. Under an objective test, neither

collection of components constituted a “destructive device.”

1. The Items In Ms. Borne’s Possession Had Legitimate Social Uses, And Are Not Inherently Dangerous.

The initial question under an objective test is whether the materials in

the defendant’s possession “ha[ve] any value other than as a weapon.”

Spoerke, 568 F.3d at 1247 (citing United States v. Hammond, 371 F.3d 776,

781 (11th Cir. 2004)); see also United States v. Johnson, 152 F.3d 618, 627

(7th Cir. 1998) (“[T]he case law demonstrates a fundamental distinction

between devices and components that are, by their very nature, ones that can

be used only for illegal purposes and devices and components that could have

both a proscribed and a legitimate use.”). The materials need not have an

exclusively benign purpose. See United States v. Fredman, 833 F.2d 837, 838

(9th Cir. 1987) (finding combination of materials could be a benign

commercial blasting device or a dangerous explosive).

Unlike the components of machine guns and grenades, which are, by

their nature, dangerous and destructive, the items in Ms. Borne’s possession

have legitimate social uses. As to the first device, matches are commonly

used for camping and cooking, and hairspray is a popular cosmetic product

that any traveling woman might be expected to carry. The cylinder, with its

23

raft attached, was really a “trophy,” symbolizing Ms. Borne’s diligent coding

efforts and her practiced skills. R. 24. As to the second device, the digital

code on the gold USB could produce a handgun legally used for protection, as

long as it was registered, and the plastic filament formula on the

robot-shaped USB could be used to create various plastic products, such as

cups or toys.

2. The Items In Ms. Borne’s Possession Could Not Have Been “Readily Assembled” Into A Device Covered By Subsections (f)(1) Or (f)(2).

The objective test also considers whether the parts can be “readily

assembled” into a destructive device covered by subsections (f)(1) and (f)(2).

Whether parts can be “readily assembled” depends on both possession of all

the elements necessary to construct the device, and the amount of time it

would take to combine the component parts into a device. Ms. Borne neither

possessed all of the component parts the devices, nor could she have

assembled the devices in a short amount of time even if she did have all the

parts. Therefore, neither of the devices could have been “readily assembled.”

First, the objective test requires that the defendant possess all of the

elements necessary to assemble a destructive device. See Malone, 546 F.2d at

1183 (5th Cir. 1977) (holding the defendant did not have a destructive device

because he did not possess any explosive material); Posnjak, 457 F.2d at 1120

(finding that the defendant did not have all the materials necessary to build a

bomb in his possession). As the court in Malone explained, “The words of the

24

statute are ‘from which a destructive device may be readily assembled’, and

not, as the government contends, ‘from which a destructive device may be

readily assembled with addition of other parts.’” Malone, 546 F.2d at 1184.

The first device fails this requirement because Ms. Borne did not

possess a fuse, a cap, or similar items required to detonate a pipe bomb. Cf.

Malone, 546 F.2d at 1183 (holding defendant lacked explosive material and

thereby did not have a destructive device). The government failed to provide

evidence that the first alleged device would work without common pipe bomb

materials. R. 18.

Ms. Borne also lacked some materials necessary to complete the second

device. Assuming that the two USB drives were in Ms. Borne’s possession,3

she still would have needed a 3D printer and raw materials to produce a

plastic gun and the filament from the code contained on the USBs. Neither of

these items are readily available, particularly to a high school student in a

foreign country. Without those items, the plans and formulas are just data,

incapable of being assembled into anything at all. Finally, once the gun was

printed, Ms. Borne still would have needed a bullet or other explosive to

make the gun functional such that it could cause the potential injuries

alleged by the government’s expert. R. 18. Because Ms. Borne lacked

possession of these parts, she did not possess a destructive device.

3 As argued fully in Part II.C.2, there are significant issues regarding the Fourteenth Circuit’s assertion that Ms. Borne actually knew of or possessed either of these items.

25

Second, in determining whether items can be “readily assembled” into

a destructive device, courts must consider the amount of time it would take to

combine the component parts into said device. See United States v. Langan,

263 F.3d 613, 617, 626 (6th Cir. 2001); United States v. Pearce, No. 03-1456,

2004 WL 231779, at *1-2 (6th Cir. Feb. 5, 2004). In Langan, a pipe covered in

wires and filled with an explosive powder was held to be a destructive device

because it would take defendant “only a few seconds” to make the device

operable. See 263 F.3d at 617, 626. Similarly, in Pearce, a capped pipe full of

explosive powder was held to be a destructive device because it could be

assembled into a pipe bomb “in a matter of minutes.” See 2004 WL 231779,

at *1-2; see also Markley, 567 F.2d at 527 (pipe that was pre-filled with

explosive powder, sealed with wax, and contained fuse held to be a

destructive device).

Unlike the devices in Langan and Pearce, the first device would take

more than a few seconds or minutes to assemble. Additionally, unlike the

device in Markley, the materials in Ms. Borne’s possession were not combined

in any way. The cylinder, which allegedly would form the body of a pipe

bomb, was not even ready to be filled and sealed, because the printing raft

was still attached to the bottom. R. 10. Furthermore, the second device

would have required at least half a day, and likely much longer, to assemble.

It took Mr. Triton twelve hours to print the cylinder alone using the 3D

printer, R. 10., so it is likely that Ms. Borne would have required significantly

26

more time to print an entire gun. The Fourteenth Circuit’s statement that

“digital items can be made into tangible items in the blink of an eye” is

inaccurate as applied to this case. R. 12. Because matches, hairspray, a

cylinder, and USB drives have benign purposes and cannot be “readily

assembled” in a few minutes without additional materials, Ms. Borne did not

possess a destructive device under the objective standard.

C. Even Considering Subjective Intent, Ms. Borne Did Not Possess A Destructive Device.

Even if this Court considers Ms. Borne’s subjective intent, she still did

not possess a “destructive device” for purposes of Section 5845(f)(3). The

context in which Ms. Borne possessed the materials, her lack of knowledge

regarding some of the materials, and her statements demonstrate Ms.

Borne’s innocent intent to transport her possessions to Azran for a

study-abroad program.

The context in which the defendant possessed the materials is an

important indicator of a defendant’s subjective intent. Compare Fredman,

833 F.2d at 839-40 (holding defendant lacked criminal intent where he was

not transporting components with other indicia of dangerousness), with

United States v. Loud Hawk, 628 F.2d 1139, 1142 (9th Cir. 1979) (inferring

criminal intent where defendant possessed other weapons, engaged in a

police chase, and exchanged gunshots with officers). Ms. Borne’s case is more

like that in Fredman and less like that in Loud Hawk. Like in Fredman, Ms.

Borne was not in possession of additional weapons at the time of the traffic

27

stop. R. 16. Unlike in Loud Hawk, Ms. Borne did not resist the traffic stop,

rather, the driver of Ms. Borne’s car obediently pulled over and there is no

evidence that Ms. Borne failed to cooperate with the officer during the stop.

R. 13-14. Furthermore, Ms. Borne was stopped on her way to participate in a

benign academic program abroad. R. 12-14. Therefore, the context in which

Ms. Borne possessed the matches, hairspray, cylinder, and USB drives did

not demonstrate any criminal intent.

Additionally, Ms. Borne could not have subjectively intended to use the

component parts to create a destructive device because she likely lacked

knowledge that she even possessed some of those components in the first

place. As to the first device, the matches were likely accidentally left in Ms.

Borne’s luggage after a family camping trip as they were stuffed “[i]nside a

small, waterproof, interior pocket of the duffel bag” the family used for those

purposes. R. 12. Therefore, Ms. Borne likely did not know the matches were

in her luggage. Ms. Borne also lacked knowledge that she possessed

components of the second device. Not only was the gold USB not in Ms.

Borne’s belongings, but she only had reason to believe that the drive stored

music and nothing else. R. 16 (Mr. Triton told the girls that the gold USB

drive contained music, and even he was surprised to learn that the guns

plans were still on it). Nor was Ms. Borne aware that Ms. Triton saved the

plastic filament to the robot-shaped USB or that Ms. Triton had packed that

USB drive in her own luggage. R. 11. Because Ms. Borne was not aware that

28

she possessed certain components of the alleged destructive devices, she

lacked criminal intent.

Finally, Ms. Borne’s statements demonstrate a peaceful and innocent,

not criminal or violent, intent. The government introduced Ms. Borne’s

tweets as evidence of her criminal or violent intent, but a plain reading of

those tweets proves otherwise. Ms. Borne tweeted, “With one wish, I wish all

guns would blow up. #guncontrol.” R. 18. The hashtag Ms. Borne used—

“#guncontrol”—and the fact that the tweet followed the gun-related death of

a classmate demonstrates that Ms. Borne’s wish for guns to “blow up” was a

plea for future peace and non-violence. R. 18. Additionally, re-tweeting

articles supporting Dixie Millions, R. 18, shows that Ms. Borne supported

fairness, as she viewed Dixie Millions as “White Hat Hackers,” not violent

criminals. See 1 Kirsten M. Koepsel Data Sec. & Privacy Law § 1:11 (2015)

(defining “White Hat Hackers” as “the benevolent form of hackers”).

Evidence of Ms. Borne’s subjective intent proves that the materials in

Ms. Borne’s possession were not destructive devices. Ms. Borne possessed the

matches, hairspray, cylinder, and USB drives independent of any other

weapons, and she did not resist the traffic stop. Furthermore, Ms. Borne did

not know that the codes for the gun and plastic filament formula were saved

to the USB drives, and relevant tweets by Ms. Borne demonstrate an interest

in peace and fairness. Therefore, no criminal or violent intent can be

29

inferred, and subjective intent supports finding that the components were not

destructive devices.

II. THE FOURTEENTH CIRCUIT ERRED IN AFFIRMING MS. BORNE’S CONVICTION UNDER 18 U.S.C. § 2339B.

Historically, this Court has placed strict limits on the government’s

ability to criminalize speech and association that might lead to harm or

violence. Even subversive speech is protected unless it is intended and likely

to produce “imminent lawless action.” Brandenburg v. Ohio, 395 U.S. 444,

447 (1969). Additionally, the government cannot criminalize mere

association with a criminal organization unless there is specific intent to

further the organization’s goals by illegal means. Scales v. United States, 367

U.S. 203, 229 (1961). These limits are essential to prevent undue hindrance

of fundamental First Amendment rights.

Because Section 2339B criminalizes protected expression that does not

meet the strict requirements established in Brandenburg and Scales, the

statute is unconstitutional on its face. Given the gravity of constitutional

rights at stake, stare decisis does not require continued adherence to this

Court’s decision in Holder v. Humanitarian Law Project, 561 U.S. 1 (2010).

Furthermore, because provisions of Section 2339B fail to provide adequate

notice of what conduct is prohibited, the statute is unconstitutionally vague

as applied. Even if the statute is constitutional, however, the jury’s verdict is

not supported by sufficient evidence and must be overturned. See Jackson v.

Virginia, 443 U.S. 307 (1979).

30

A. Section 2339B Violates The First Amendment By Criminalizing Protected Speech And Association.

Because Section 2339B criminalizes protected speech and association,

it violates the First Amendment. In attempting to meet and speak with Mr.

Allen, Ms. Borne sought to engage in pure political speech. Such speech “is at

the core of what the First Amendment is designed to protect.” Virginia v.

Black, 538 U.S. 343, 365 (2003). Despite the fact that Section 2339B

impermissibly criminalizes both this and other protected speech, the

Fourteenth Circuit affirmed Ms. Borne’s conviction. Because the decision of

the Fourteenth Circuit defies decades of controlling First Amendment

precedent, it must be reversed. Furthermore, given its narrow holding and

the important constitutional interests at stake, stare decisis does not require

adherence to this Court’s contrary decision in Humanitarian Law Project.

1. Section 2339B Is Not “Narrowly Tailored” To Address A Compelling Government Interest, And Therefore Fails Strict Scrutiny.

Section 2339B severely infringes on the core of the First Amendment’s

protection of free speech and association. Ms. Borne seeks to engage in

lawful political speech by communicating with Mr. Allen. R. 12. The

government has interpreted Section 2339B to criminalize that very speech.

Id. Indeed, Section 2339B broadly criminalizes pure political speech (in the

form of “service,” “training,” “expert advice,” and “personnel”) based solely on

its content—speech is illegal when made to certain organizations, but not

others.

31

This Court has held that lawful political speech “is at the heart of the

First Amendment’s protections.” See First Nat. Bank of Boston v. Bellotti,

435 U.S. 765, 776 (1978). Correspondingly, content-based prohibitions of

such speech are subject to strict or “exacting” scrutiny. See R.A.V. v. City of

St. Paul, 505 U.S. 377, 382 (1992); see also Turner Broad. Sys., Inc. v. FCC,

512 U.S. 622, 642 (1994) (“Our precedents thus apply the most exacting

scrutiny to regulations that . . . impose differential burdens upon speech

because of its content.”). Statutes subject to strict scrutiny are presumptively

invalid, and “may be justified only if the government proves that they are

narrowly tailored to serve compelling state interests.” See, e.g., Reed v. Town

of Gilbert, 135 S. Ct. 2218, 2226 (2015). A statute is “narrowly tailored” when

it represents “the least restrictive means” to further a compelling state

interest. See Sable Commc’ns. of California, Inc. v. FCC, 492 U.S. 115, 126

(1989). Under strict scrutiny, it makes no difference whether the government

can assert a legitimate or content-neutral reason for the prohibition. Turner

Broad. Sys., Inc., 512 U.S. at 642.

Admittedly, the government has a “compelling interest” in preventing

both the growth and legitimization of terrorist organizations. However,

Section 2339B’s wide-sweeping criminalization of all political speech made to

such organizations is certainly not “narrowly tailored” to serve that interest.

The government has not shown that criminalizing speech urging terrorist

organizations to stop their illegal activities (or, as here, speech wholly

32

unrelated to the group’s activities) is in any way necessary to promote the

national security interests underlying Section 2339B.

When a statute criminalizes a wide array of protected speech, it is

“overbroad” and therefore unconstitutional. See New York State Club Ass'n,

Inc. v. City of New York, 487 U.S. 1, 11 (1988).4 In Village of Schaumburg v.

Citizens for a Better Environment, 444 U.S. 620 (1980), this Court invalidated

an ordinance that prohibited door-to-door solicitation by charitable

organizations that did not use at least seventy-five percent of their donations

for “charitable purposes.” This Court noted that the ordinance could not

constitutionally apply to charitable organizations formed solely to “gather

and disseminate information.” Id. at 635. Because the ordinance made no

attempt to distinguish between such organizations and more traditional

charities formed to give to the poor (to which it could constitutionally apply),

this Court held the ordinance was facially invalid. Id.

Similarly, Section 2339B criminalizes pure speech without regard to

whether it actually furthers any terrorist activity. Even if Section 2339B

could be applied in certain situations (e.g., where speech is intended and

likely to incite imminent lawless action), it is not sufficiently limited to such

situations, and therefore sweeps too broadly.

4 Even though the First Amendment protects Ms. Borne’s speech in this case, she can still raise a facial challenge based on overbreadth. See Nunez by Nunez v. City of San Diego, 114 F.3d 935, 949 (9th Cir. 1997) (referencing Sec'y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 967 (1984) (permitting an overbreadth challenge when a statute “create[s] an unacceptable risk of the suppression of ideas”)).

33

The record is devoid of evidence that Ms. Borne intended or conspired

to engage in speech that would further the group’s illegal activities. In fact,

the prosecution admitted during cross-examination that Ms. Borne intended

to urge groups like Dixie Millions to focus on legal activities. R. 17. But even

if Ms. Borne did intend to advocate on behalf of the group’s illegal conduct,

the government still would not have carte blanche to criminalize that speech.

In Brandenburg, this Court held that even subversive speech is protected by

the First Amendment unless intended and likely to produce “imminent

lawless action.” See 395 U.S. at 447. Brandenburg was a seminal decision,

and has been repeatedly reaffirmed by this Court. Therefore, even if Section

2339B was limited to political speech designed to further a group’s illegal

activities—which it is not—it would still need to be limited to situations in

which the speech is likely to incite imminent lawless action. Because there is

no such limitation in the statute, Section 2339B is unconstitutional.

2. By Creating A Regime Of “Guilt By Association,” Section 2339B Violates The First Amendment Right To Freedom of Association.

Furthermore, Section 2339B violates the First Amendment right to

freedom of association by criminalizing intent to provide “service” or

“personnel” without requiring intent to engage in or further illegal activities.

The First Amendment broadly protects the right to “express one's attitudes or

philosophies by membership in a group or by affiliation with it or by other

lawful means.” See Griswold v. Connecticut, 381 U.S. 479, 483 (1965).

34

Section 2339B impermissibly burdens this right by criminalizing pure speech

communicated to designated organizations. See supra Part II.A.1. More

directly, the “service” and “personnel” prongs of “material support” directly

criminalize association even when the individual does not intend to engage in

illegal activity. See 18 U.S.C. § 2339A(b)(1) (2012).

Previously, this Court addressed similar efforts by the government to

criminalize mere association with a disfavored organization—typically the

Communist party. In Scales, this Court held that Congress could not punish

mere membership in the Communist Party without proof of “specific[] inten[t]

to accomplish [the aims of the organization] by resort to violence.” 367 U.S.

at 229; see also Noto v. United States, 367 U.S. 290 (1961) (holding intent to

incite violence rather than abstract teaching of Communist theory is required

for criminal punishment). Similarly, in United States v. Robel, 389 U.S. 258,

262 (1967), this Court held that the government could not prohibit

Communist Party members from working certain government jobs absent a

showing that those individuals intended to further the group’s unlawful

activities. Finally, in De Jonge v. Oregon, 299 U.S. 353, 365 (1937), this

Court reversed a criminal conviction for active participation in the

Communist Party because there was no evidence that the defendant’s actions

promoted illegal conduct.

Therefore, this Court has consistently held that mere association

cannot sustain criminal conviction under the First Amendment, no matter

35

how distasteful the group or its values. Despite this, Section 2339B imposes

a criminal penalty on those who attempt or conspire to provide “service” or

“personnel” to a terrorist organization without distinction as to whether they

intend to further the organization’s illegal activities. Section 2399B is

therefore substantially similar to the governmental actions challenged in

Scales, Robel, and De Jonge, each of which were found held unconstitutional.

Because Section 2339B criminalizes mere association and severely burdens

the right to association, it must be overturned.

3. Stare Decisis Does Not Require Continued Reliance On This Court’s Contrary Decision In Holder v. Humanitarian Law Project.

Given the gravity of constitutional interests at stake, stare decisis does

not require continued reliance on this Court’s decision in Humanitarian Law

Project. In Humanitarian Law Project, this Court held that Section 2339B

does not violate the First Amendment because it does not criminalize “pure

political speech,” but rather the provision of “material support” in the form of

speech. 561 U.S. at 28. Furthermore, this Court held that Section 2339B is

sufficiently narrow, and that any distinction between support for legal versus

illegal activity is spurious. Id. at 29-30. Both decisions represent a

significant and unjustified retreat from well-established Supreme Court

precedent.

Humanitarian Law Project breaks significantly with precedent strictly

limiting the government’s authority to criminalize speech and association

36

that might result in future harm. See Brandenburg, 395 U.S. at 447 (holding

that subversive speech is protected unless it is intended and likely to produce

“imminent lawless action”); Scales, 367 U.S. at 229 (requiring a finding of

intent to further an organization’s illegal activities). These cases and their

progeny represent some of this Court’s most fundamental First Amendment

decisions. See David Cole, The First Amendment’s Borders: The Place of

Holder v. Humanitarian Law Project In First Amendment Doctrine, 6 Harv.

L. & Pol’y Rev. 147, 156 (2012). Humanitarian Law Project made no attempt

to distinguish, and in fact did not even address Brandenburg or Scales.

Additionally, Humanitarian Law Project applies an unheard of form of

strict scrutiny. Although this Court stated that Section 2339B’s content

based prohibitions of speech should be subject to strict scrutiny, it proceeded

to give unprecedented deference to the government’s assertions. This Court

has previously deferred to the legislature on matters of national security, see,

e.g., Rostker v. Goldberg, 453 U.S. 57, 65 (1981), but it has never done so in

reviewing a content-based prohibition of speech. Even though the government

has not, and likely cannot, show that a complete prohibition of political

speech advocating lawful action is necessary to protect national security, the

Court nonetheless upheld Section 2339B’s application to such speech. See

Cole, The First Amendment’s Borders, supra, at 159.

The Court appears to have deferred to the government’s bare assertion

that terrorist organizations “are so tainted by their criminal conduct that any

37

contribution to such an organization facilitates that conduct.” See

Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110

Stat. 1214, 1247 (1996). But the government did not produce any evidence to

substantiate that assertion. Given the important First Amendment rights at

stake, and the Court’s agreement that strict scrutiny should apply, a more

searching inquiry was required. See Landmark Commc’ns, Inc. v. Virginia,

435 U.S. 829, 843 (1978) (“Deference to a legislative finding cannot limit

judicial inquiry when First Amendment rights are at stake.”)

Humanitarian Law Project itself makes clear that its decision is tightly

limited, stressing, “we also do not suggest that Congress could extend the

same prohibition on material support at issue here to domestic

organizations.” 561 U.S. at 39. In noting that different facts might change

the First Amendment analysis, this Court clearly signaled that the decision

in Humanitarian Law Project was not meant to extend far beyond the

particular facts of that case. Accordingly, the Ninth Circuit has interpreted

Humanitarian Law Project narrowly, holding that the First Amendment

prohibits application of Section 2339B to advocacy coordinated with a

domestic organization. See Al Haramain Islamic Foundation, Inc. v. U.S.

Dept. of Treasury, 660 F.3d 1019 (9th Cir. 2011).

Much like Al Haramain Islamic Foundation, the facts of this case are

easily distinguishable from Humanitarian Law Project. First, Dixie Millions

is a “domestic organization,” meaning this case falls squarely within the

38

exception laid out in Humanitarian Law Project. R. 5. Second, while the

defendant organization in Humanitarian Law Project clearly intended to

support and work with a terrorist organization (albeit only with regard to

legal activities), there is no evidence that Ms. Borne similarly intended to join

or work with Dixie Millions at all. Finally, while the nature of defendant’s

support in Humanitarian Law Project was clear, it is completely speculative

what Ms. Borne would have done if she had found Mr. Allen in Azran.

As this Court has stated, “[I]t is common wisdom that the rule of stare

decisis is not an inexorable command.” See Planned Parenthood of

Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854 (1992) (internal

quotations omitted). Instead, when reviewing prior precedent, this Court

must consider prudential and pragmatic considerations “designed to test the

consistency of overruling a prior decision with the ideal of the rule of law.” Id.

(specifically identifying considerations such as workability, reliance,

subsequent development of legal principles, and changes in facts).

Here, because Humanitarian Law Project directly conflicts with

existing First Amendment precedent, its future application to future cases is

unworkable. Cf. Garcia v. San Antonio Metro Transit Auth., 469 U.S. 528,

546-47 (1985) (rejecting as “unworkable” a previous rule of state immunity

from federal regulation). And, given that Humanitarian Law Project was

decided only five years ago, the decision has not produced the type of reliance

that might counsel against reversal.

39

In sum, Humanitarian Law Project simply cannot coexist with this

Court’s long history of First Amendment precedent. Given its narrow holding

and the importance of correcting any inconsistencies regarding First

Amendment principles, this Court should reverse Humanitarian Law Project.

Stare decisis does not require continued reliance on a case that was

incorrectly decided. In the alternative, this Court should explicitly limit

Humanitarian Law Project’s First Amendment analysis to the facts of that

case and conduct a de novo review here.

B. Section 2339B Is Unconstitutionally Vague As Applied To The Facts Of This Case.

Because Section 2339B’s terms are vague and imprecise, the statute

cannot be applied to Ms. Borne in this case. Section 2339B’s “material

support” provision criminalizes much more than providing tangible goods to a

terrorist organization. Indeed, the statute criminalizes, among other things,

speech and association in the form of “training,” “expert advice,” and

“personnel.” See § 2339A(b)(1). Because those terms are not clearly defined,

especially as applied to the facts of this case, the statute violates the Due

Process Clause of the Fifth Amendment.

Due process requires that criminal statutes be “so clearly expressed

that the ordinary person can intelligently choose, in advance, what course it

is lawful for him to pursue.” Connally v. General Constr. Co., 269 U.S. 385,

393 (1926); see also Marks v. United States, 430 U.S. 188, 191 (1977) (holding

due process requires that “persons have a right to fair warning of that

40

conduct which will give rise to criminal penalties”). The demand for clarity

increases with the gravity of the penalty and constitutional rights at stake.

See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.

489, 498-99 (1982) (imposing a higher due process standard for criminal

statutes and when speech is at stake). Because Section 2339B implicates

fundamental First Amendment rights and because a conviction under the

statute could result in a life sentence, the statute is subject to heightened

vagueness scrutiny. See Reno v. Am. Civil Liberties Union, 521 U.S. 844,

871-72 (1997).

A criminal statute is unconstitutionally vague if it does not “give [a]

person of ordinary intelligence a reasonable opportunity to know what is

prohibited.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Here, an

objectively reasonable person would not have an opportunity to know that

Ms. Borne’s actions were illegal under Section 2339B. There are four “types”

of material support that Ms. Borne could conceivably have been convicted of

conspiring to provide. Each “type” of material support will be dealt with in

turn.

1. Property.

First, the statute generally prohibits the provision of “property,

tangible or intangible” to terrorist organizations. § 2339A(b)(1). If this

provision meant any property, it would be sufficiently clear. However

because Section 2339B only criminalizes provision of material support, it

41

must be limited to only certain types of property. As Justice Breyer noted in

Humanitarian Law Project, “material” can mean either: (1) “being of a

physical or worldly nature”; or (2) “being of real importance or great

consequence.” 561 U.S. at 57 (Breyer, J., dissenting) (citing Webster’s Third

New International Dictionary 1392 (1961)). Because the statute’s definition

of “material support” clearly and unambiguously criminalizes provision of

“intangible” goods, the first definition cannot apply. Therefore, only property

of “importance or great consequence” qualifies as “material support.”

As a result, Section 2339B requires criminal defendants to determine,

ex ante, whether the property would be of “importance or great consequence”

to a terrorist organization. Although there may be some situations in which

a defendant would be able to make that determination (e.g., if she intended or

conspired to provide weapons) that is not the case here.

None of the “property” identified by the Fourteenth Circuit would

clearly be important to Dixie Millions.5 First, it is almost certain that the

computer savvy members of Dixie Millions would be able to independently

create a “perfect cylinder” formula and 3D gun plans with minimal effort,

especially since a high school student developed the formula and the plans

were simply downloaded from the Internet. R. 9, 11. Any time that Ms.

Borne might have saved the group by providing the items would be de

5 As argued fully in Part II.C.2, there are significant issues regarding the Fourteenth Circuit’s assertion that Ms. Borne actually knew of or possessed either of these items.

42

minimis, and certainly not of “great consequence.” Furthermore, there is

simply no evidence to suggest Dixie Millions would be interested in or have

any use for the plastic filament formula or the gun plans. Even if these items

do qualify as “material” property under Section 2339B, an objectively

reasonable person would have no way of making that determination ex ante,

and therefore the provision is unconstitutionally vague as applied.

2. Expert Advice Or Assistance.

Section 2339B’s prohibition on providing “expert advice or assistance”

necessarily forces a criminal defendant to determine whether any of the

advice or assistance she intends to provide “derives from scientific, technical,

or other specialized knowledge.” See § 2339A(b)(3). The statute provides no

principled way for a defendant to make this determination. “Specialized” is a

term of degree that admits of a significant amount of discretion, and

therefore fails to provide constitutionally adequate notice of criminal

prohibition. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1048-49

(1991) (holding that “general” and “elaboration,” as terms of degree, fail to

provide constitutionally adequate notice). A reasonable person in Ms. Borne’s

position would have no way of deciding whether her intended advice or

assistance qualifies as “expert,” particularly given that the recipient itself

would determine exactly what role she could play. For these reasons, the

“expert advice or assistance” provision is unconstitutionally vague as applied.

3. Service.

43

Although Section 2339B prohibits intent to provide “service,” it makes

absolutely no attempt to define that term. Properly interpreted, the word

“service” means “an act done for the benefit or at the command of another.”

Webster’s Third International Dictionary 2075 (1971). But a reasonable

person would not know what activities Dixie Millions would consider

beneficial.

The record suggests that Ms. Borne wanted to meet Mr. Allen in order

to develop a mentorship relationship. R. 12. Would establishment of such a

relationship constitute an “act”? More importantly, would it in any way

benefit Dixie Millions? Would it benefit Dixie Millions if Ms. Borne tweeted

supportive messages? If she were to urge Dixie Millions to stop hacking

government servers? Section 2339B provides no principled way for a

reasonable person to determine, ex ante, whether anything in the boundless

range of potential human action would qualify as “service.” For that reason,

the provision is unconstitutional as applied to Ms. Borne.

4. Personnel.

“Personnel” is limited to situations where individuals intend or

conspire to “work under [the] terrorist organization’s direction or control.”

§ 2339B(h). Accordingly, “individuals who act entirely independently . . . to

advance [the organization’s] goals or objectives” do not violate the statute.

Id. This limit, however, creates vagueness problems as applied to these facts.

Because the statute only explicitly excuses “entirely” independent action, it

44

leaves a gray area between actions that are entirely independent and those

performed under the “direction or control” of a terrorist organization. The

statute makes no attempt to clarify just how much oversight by a terrorist

organization is necessary to qualify as “direction or control.”

Here, it is clear that Ms. Borne intended to study abroad in Azran. R.

4-5. She also intended to meet with Mr. Allen, but it is entirely unclear

whether that one meeting would qualify as “direction or control” by Dixie

Millions. Even assuming arguendo that Ms. Borne intended to conduct her

own “white hat hacking” inspired by Dixie Millions, it is unclear whether that

inspiration qualifies as “direction or control.” Additionally, given the unique

organizational structure of “hacktivist” groups, the degree of Dixie Millions’

“direction or control” would be unclear even if Ms. Borne specifically intended

to join the organization. R. 22 (noting “hacktivist” groups like Dixie Millions

“revel in their lack of formal structures”). Because a reasonable person would

not be put on notice that intent to speak or work with Mr. Allen triggers the

“direction or control” of Dixie Millions, the “personnel” provision is

unconstitutionally vague as applied.

C. The Jury’s Verdict Must Be Overturned Because It Was Not Supported By Sufficient Evidence.

Even if Section 2339B is constitutional, the government failed to

produce sufficient evidence for a rational jury to convict Ms. Borne.

Conviction relies on the application of statutory and constitutional law to

historical facts. See Jackson, 443 U.S. at 320 (1979) (holding that a fact-

45

finder must rationally apply legal standards to the facts in evidence).

Therefore, even though a jury’s factual conclusions are entitled to deference,

see U.S. Const. amend. VII (“no fact tried by a jury, shall be otherwise

reexamined in any court of the United States”), conviction is not a purely

factual question, and the jury’s decision is reviewable on appeal.

A conviction must be overturned when it is not supported by sufficient

evidence to prove guilt beyond a reasonable doubt. See Jackson, 443 U.S. at

319. In this case, the jury did not have sufficient evidence to find that:

(1) Ms. Borne acted in coordination with Dixie Millions; (2) Ms. Borne

intended to provide material support to Dixie Millions; or (3) Ms. Borne knew

Dixie Millions qualified as a terrorist organization. Because the jury cannot

lawfully convict under Section 2339B unless each of these elements is

supported by sufficient evidence, the jury’s verdict must be overturned.

1. Due Process Requires That A Criminal Verdict Be Supported By Sufficient Evidence.

A criminal conviction that is not supported by sufficient evidence to

“pro[ve] beyond a reasonable doubt . . . every fact necessary” to constitute the

crime, must be overturned. In re Winship, 397 U.S. 358, 364 (1970).

Accordingly, this Court has recognized that due process requires reversal of a

conviction in two situations: (1) when there is no evidence to support a

necessary element; and (2) when there is insufficient evidence to support a

necessary element. See Thompson v. City of Louisville, 362 U.S. 199, 206

(1960) (holding that that it is “a violation of due process to convict and punish

46

a man without evidence of his guilt”); see also Jackson, 443 U.S. at 319.

These standards protect against arbitrary deprivations of liberty, as well as

deprivations based on something less than “beyond a reasonable doubt.”

In Thompson, this Court held that a conviction cannot stand when

prosecution fails to produce any evidence as to a necessary element. See 362

U.S. at 206. But Thompson’s “no evidence” test does not conclude the due

process inquiry. In Jackson, this Court additionally held that criminal

convictions must be supported by sufficient evidence. See 443 U.S. at 319.

Because due process demands that “no person shall be made to suffer the

onus of a criminal conviction except upon sufficient proof” this Court held

that a “mere modicum” of evidence cannot support conviction beyond a

reasonable doubt. Id. at 320 (citing In re Winship, 397 U.S. at 358).

A verdict lacks sufficient evidence when “no rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.”

Id. at 319. To be sure, Jackson does not create a de novo standard of review

for jury verdicts on appeal. See Woodby v. Immigration & Naturalization

Serv., 385 U.S. 276, 282 (1966) (holding that a court “does not ask itself

whether it believes that the evidence at the trial established guilt beyond a

reasonable doubt”); accord United States v. Tresvant, 677 F.2d 1018, 1021

(4th Cir. 1982) (“The relevant question is not whether the appellate court is

convinced of guilt beyond a reasonable doubt.”). Instead, the court must

determine, after examining the evidence in the “light most favorable to the

47

prosecution, [whether] any rational [jury] could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319

(emphasis in original). This standard of review only “impinges upon jury

discretion to the extent necessary to guarantee the fundamental protection of

due process of law.” Id.

2. The Jury Did Not Have Sufficient Evidence To Find That Ms. Borne’s Actions Were Coordinated Or Directed By Dixie Millions.

Because the jury did not have sufficient evidence to find that Ms.

Borne acted in coordination with Dixie Millions, the conviction must be

overturned. Section 2339B does not prohibit wholly independent advocacy.

See § 2339B(h) (“Individuals who act entirely independently of the foreign

terrorist organization to advance its goals or objectives” are not prosecutable).

Instead, the defendant must intend or conspire to “work under [the] terrorist

organization’s direction or control.” Id. Entirely independent actions that

violate other criminal laws can still be prosecuted under those laws, but not

under Section 2339B.

Further, the “knowing” mens rea requirement means that Ms. Borne

must have known that she was acting in coordination with the organization.

See § 2339B(a)(1) (“knowing” mens rea requirement). Prosecution thus bears

the burden of proving beyond a reasonable doubt that Ms. Borne intended or

conspired to work in coordination with Dixie Millions, and that Ms. Borne

was aware of such coordination. See Sullivan v. Louisiana, 508 U.S. 275,

48

277-78 (1993) (“prosecution bears the burden of proving all elements of the

offense charged . . . and must persuade the fact-finder ‘beyond a reasonable

doubt’”).

The Fourteenth Circuit identified two categories of evidence that

purportedly demonstrate the link between Ms. Borne and Dixie Millions, but

both categories fail to establish such a link. First, the Fourteenth Circuit

identified that Ms. Borne was planning to deliver various codes and formulas

to Dixie Millions. R. 22. But even viewing that evidence in the light most

favorable to the prosecution, it plainly does not speak to whether Ms. Borne’s

actions were coordinated by Dixie Millions. Humanitarian Law Project made

clear that Section 2339B requires an active role for the terrorist

organization—Dixie Millions must have coordinated or directed petitioner’s

actions. See 561 U.S. at 4. Ms. Borne’s subjective intentions and unilateral

actions are simply irrelevant to the “coordination” inquiry.

Second, the Fourteenth Circuit suggested that Mrs. Ascot was “likely

the hacktivist Dixie.” R. 22. But Mrs. Ascot’s membership status, standing

alone, is irrelevant to whether Ms. Borne’s actions were coordinated or

directed by Dixie Millions because Ms. Borne was unaware of the possible

connection between Mrs. Ascot and Dixie Millions. Even assuming that Mrs.

Ascot is “Dixie,” the record is clear that she did not disclose that fact to Ms.

Borne, and did not encourage Ms. Borne to meet with Dixie Millions or

provide any support to the group. R. 17. The mens rea requirement for

49

Section 2339B is “knowingly”; therefore even if Ms. Borne did perform certain

acts at the behest of Mrs. Ascot, she did not know she was doing so. See

§ 2339B(a)(1). Ms. Borne’s statement that it would be “pretty cool” if Mrs.

Ascot was “Dixie” is also irrelevant, because it neither speaks to whether

Dixie Millions actively coordinated or directed Ms. Borne’s independent

actions, nor whether Ms. Borne knew Mrs. Ascot could be “Dixie” at the time

she acted.

To get around this clear evidentiary deficiency, the Fourteenth Circuit

held that the jury could have presumed coordination because “hacktivists can

be anywhere and everywhere” and “Ms. Borne fits the exact profile of a

member of Dixie Millions.” R. 22. That presumption violates due process

because it flips the burden and forces the defendant to prove that she was not

acting in coordination with the terrorist group. Cf. Carella v. California, 491

U.S. 263, 265-66 (1989) (instruction that theft could be presumed from

defendant’s failure to return automobile within certain time period

unconstitutionally shifted burden of proof). The mere fact that Dixie Millions

encouraged hacking does not permit a presumption that all hackers

worldwide are working in coordination with Dixie Millions. Holding

otherwise would violate due process and subject Ms. Borne to an

impermissible “guilty until proven innocent” standard.

The jury lacked sufficient evidence to find that Ms. Borne’s actions

were coordinated or directed by Dixie Millions. The record is devoid of

50

sufficient evidence that Dixie Millions knew petitioner existed, let alone

specifically coordinated or directed her actions. Therefore, under both the “no

evidence” standard of Thompson and “lack of sufficient evidence” standard of

Jackson, the jury verdict must be overturned.

3. The Jury Did Not Have Sufficient Evidence To Find That Ms. Borne Intended To Provide Material Support To Dixie Millions.

Nor did the jury have sufficient evidence to find that Ms. Borne

intended to provide material support to Dixie Millions. In relevant part,

“material support” is defined to include: (1) property, tangible or intangible;

(2) a service; (3) expert advice or assistance; and (4) personnel, including

oneself. See § 2339A(b)(1). Unless there is sufficient evidence that Ms. Borne

attempted or conspired to provide Dixie Millions with any of those types of

material support, the conviction cannot stand.

First, there is insufficient evidence to suggest that Ms. Borne intended

to provide Dixie Millions with anything. Absent clear legislative intent to the

contrary, words used in statutes should be interpreted according to their

plain meaning. See Sandifer v. U.S. Steel Corp., 134 S.Ct. 870, 876 (2014).

As previously mentioned, Section 2339B requires that a defendant

“knowingly provide material support or resources” or attempt to do so.

§ 2339B(a)(1) (emphasis added). The plain meaning of the word “provide” is

“to supply what is needed for . . . support.” Webster’s Third International

51

Dictionary 1827 (1971). Therefore, the evidence must support a finding that

Ms. Borne intended to actually supply or give something to Dixie Millions.

The record contains no such evidence. First, there is absolutely no

evidence that Ms. Borne intended to join Dixie Millions, thereby providing

service, expert advice, or personnel. As Judge Morgan noted in dissent, “At

best, the evidence supports the claim that [Ms. Borne] intended to meet with

Mr. Allen in order to learn more about the man himself.” R. 25. Even though

Ms. Borne expressed admiration for Dixie Millions, there is no evidence to

suggest that she intended or conspired to join the group.

Nor is there sufficient evidence for a jury to reasonably infer that Ms.

Borne would have joined Dixie Millions if she found Mr. Allen. Although

juries may draw inferences from evidence, their inferences must be

reasonable. See, e.g., Schad v. Ryan, 671 F.3d 708 (9th Cir. 2011). A

reasonable inference must be based on more than mere speculation or

conjecture. See United States v. Lewis, 787 F.2d 1318, 1323 (9th Cir. 1986);

see also United States v. Jones, 713 F.3d 336, 347 (7th Cir. 2013); United

States v. Moreland, 665 F.3d 137, 149 (5th Cir. 2011); United States v. Friske,

640 F.3d 1288, 1291 (11th Cir. 2011); United States v. Kim, 435 F.3d 182, 184

(2d Cir. 2006); United States v. Jones, 44 F.3d 860, 865 (10th Cir. 1995);

United States v. McNeill, 887 F.2d 448, 450 (3d Cir. 1989). Any inference

that Ms. Borne would have joined Dixie Millions if she found Mr. Allen is

based on pure conjecture and speculation. The facts suggest that Ms. Borne

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admired Dixie Millions and wanted to meet Mr. Allen, but there is no

reasonable basis to infer that she intended or conspired to join the

organization. If anything, the record supports an inference that Ms. Borne

fundamentally disagreed with the goals and methods of Dixie Millions. Ms.

Borne “urged [hacktivist groups] to focus on helping keep data safe and

suggested they only reveal ‘malicious corporate and government lies that

hurt people,’” a sentiment directly at odds with many of Dixie Millions’

activities. R. 17.

Similarly, there is no evidence to suggest that Ms. Borne intended to

provide Dixie Millions with any property. The Fourteenth Circuit identified

four pieces of “property” that Ms. Borne intended to provide: (1) the “perfect

cylinder” code; (2) the cylinder model; (3) the formula for advanced plastic

filament; and (4) plans for a 3D-printed gun. R. 22.

The Fourteenth Circuit failed to note, however, that Ms. Borne neither

knew of nor possessed either the plastic filament formula or the gun plans.

Pure factual findings are reviewed for clear error, see United States v.

McConney, 728 F.2d 1195, 1200 (9th Cir. 1984), and a finding is clearly

erroneous when the court is left with a “definite and firm conviction that a

mistake has been committed.” Pullman-Standard v. Swint, 456 U.S. 273,

284-85 n.14 (1982). In this case, there is uncontroverted evidence that Mr.

Triton and his daughter developed the plastic filament formula with no

assistance from Ms. Borne. R. 6-7, 10-11. Ms. Triton loaded the formula onto

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a cartoon robot USB, and it was discovered in her possession. R. 12. There is

no evidence that Ms. Borne even knew the formula existed, let alone that she

intended to give it to Dixie Millions. Similarly, Mr. Triton downloaded the

gun plans on his own, with no knowledge from Ms. Borne. R. 9. Mr. Triton

downloaded the plans to a gold USB, which was discovered in his possession.

R. 16. There is no evidence that Ms. Borne even knew of the gun plans, let

alone that she intended to give them to Dixie Millions. Therefore, any

finding that Ms. Borne intended to provide either of those things to Dixie

Millions is clearly erroneous.

As to the curve code, the record establishes that Ms. Borne intended to

show Mr. Allen the code in order to impress him. R. 12. There is no

reasonable basis to infer that she intended or conspired to give that code or

the cylinder itself to Dixie Millions. Any inference that she would have given

Mr. Allen the code if he had requested it is based on pure speculation and

conjecture and cannot sustain conviction. Because there is insufficient

evidence to prove that Ms. Borne intended or conspired to “provide” anything

that would qualify as “material support” to Dixie Millions, the jury’s verdict

must be overturned.

4. The Jury Did Not Have Sufficient Evidence To Find That Ms. Borne Knew Dixie Millions Qualified As A Terrorist Organization.

Because the jury did not have sufficient evidence to find that Ms.

Borne knew Dixie Millions qualified as a terrorist organization, the

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conviction must be overturned. Section 2339B requires the defendant to have

actual knowledge that the relevant organization is: (1) a designated terrorist

organization; (2) engaged in “terrorist activity”; or (3) engaged in “terrorism.”

§ 2339B(a)(1). Here, the record is devoid of evidence that Ms. Borne had any

such knowledge.

The Secretary of State has discretion to designate a group as a

“terrorist organization” under Section 219 of the Immigration and

Nationality Act. See 8 U.S.C. § 1189. While it is uncontested that Dixie

Millions was designated a terrorist organization on December 30, 2011, there

is absolutely no evidence on the record that Ms. Borne knew of this highly

technical designation. Although Ms. Borne was familiar with Dixie Millions,

the record simply does not contain any evidence sufficient to prove the

requisite knowledge beyond a reasonable doubt.

As to the remaining two prongs, both “terrorist activity” and

“terrorism” are defined narrowly to include only the use of physical violence,

often for highly specific reasons. See 8 U.S.C. § 1182(a)(3)(B)(iii); Foreign

Relations Authorization Act, Fiscal Years 1988 and 1989, Pub. L. No. 100-

204, § 140(d)(2), 101 Stat. 1331 (1987). There is no evidence that Dixie

Millions has ever engaged in physical violence, and therefore no reason to

believe Dixie Millions qualifies under either of these remaining prongs. If

Dixie Millions does not qualify, Ms. Borne could not possibly have the

knowledge required by Section 2339B.

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Even if by some miracle of statutory interpretation Dixie Millions

qualifies as engaged in “terrorist activity” or “terrorism,” there is no evidence

to suggest that Ms. Borne knew the group engaged in those acts. Ms. Borne

was told and believed that the members of Dixie Millions were “White Hat

Hackers,” or good guys. In fact, the evidence shows that Ms. Borne abhorred

violence and even endeavored to convince hacktivist groups not to “exploit

bank, financial, and government security flaws.” R. 17-18. The fact that Ms.

Borne admired Mr. Allen and Dixie Millions suggests that she did not have

knowledge of any acts that might qualify as “terrorist activity” or “terrorism”

as required for a conviction under Section 2339B. There are simply no facts

tending to prove beyond a reasonable doubt that Ms. Borne had the requisite

knowledge, and therefore the jury’s verdict must be overturned.

CONCLUSION For all the foregoing reasons, this Court should overturn the holding of

the Court of Appeals for the Fourteenth Circuit on both questions presented,

and remand this case to the United States District Court for the Central

District of New Tejas for a new trial.

Respectfully submitted,

/s/

November 23, 2015

Counsel for Petitioner