No. C15-1359-1

In the Supreme Court of the United States

OCTOBER 2015 TERM ___________

Emmaline Borne,

Petitioner,

-VERSUS-

United States of America,

Respondent.

_____________________

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTEENTH CIRCUIT

BRIEF FOR RESPONDENT

Team 46 Counsel for Respondent

i

QUESTIONS PRESENTED

I. Whether an individual should be charged under 26 U.S.C. § 5845(f)(3) when she makes an explosive device by designing and fabricating firearm parts on a 3D printer.

II. Whether an individual should be prosecuted under 18 U.S.C. § 2339B after

she plans to meet the leader of a known foreign terrorist organization in order to demonstrate potentially dangerous computer code to him.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ............................................................................................ i TABLE OF CONTENTS ................................................................................................ ii TABLE OF AUTHORITIES ........................................................................................... v OPINIONS BELOW .................................................................................................... viii STATUTORY PROVISIONS ...................................................................................... viii STATEMENT OF JURISDICTION ........................................................................... viii STATEMENT OF THE CASE ........................................................................................ 1

Material Facts .............................................................................................................. 1

A. Infamous Dixie Millions hacktivist, Clive Allen, releases the National Security Agency’s confidential information of its domestic monitoring activities. ................................................................................................................... 1 B. Petitioner meets with her teacher and prepares to study abroad at Allen’s alma mater in Azran, where Allen remains with grant of asylum. ....................... 3 C. Law enforcement personnel arrest Petitioner upon discovering her explosive device component and dangerous computer code. .................................................. 6

Procedural History ....................................................................................................... 8

A. Petitioner’s trial and subsequent conviction under 26 U.S.C. § 5845(f)(3) and 18 U.S.C. § 2339B. .................................................................................................... 8 B. Petitioner’s appeal to the United States Court of Appeals for the Fourteenth Circuit, where both convictions were affirmed. ...................................................... 9

1. The Fourteenth Circuit affirmed Petitioner’s conviction under 26 U.S.C. § 5845(f)(3) based on the mixed standard approach. .......................................... 10 2. The Fourteenth Circuit also affirmed Petitioner’s conviction under 18 U.S.C. § 2339B, denying Petitioner’s First Amendment claims. ................... 11

C. Circuit Judge Morgan’s dissent. ........................................................................ 13

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SUMMARY OF THE ARGUMENT .............................................................................. 15 ARGUMENT ................................................................................................................. 17 I. THE FOURTEENTH CIRCUIT PROPERLY APPLIED THE MIXED STANDARD OF INTENT UNDER 26 U.S.C. § 5845(f)(3) IN AFFIRMING PETITIONER’S CONVICTION. ................................................................................. 17

A. The language, structure, and legislative history of § 5845(f)(3) support a mixed standard of intent. ....................................................................................... 18

B. This Court should adopt the mixed standard of intent, correctly employed by the Fourteenth Circuit, because it allows for fair and consistent adjudication. .. 21

C. The subjective and objective standards are unworkable and inconsistent with the purpose of the Gun Control Act. ...................................................................... 25

II. PETITIONER’S CONVICTION PURSUANT TO 18 U.S.C. § 2339B MUST BE AFFIRMED BECAUSE SHE PLANNED TO MEET A LEADER OF A KNOWN FOREIGN TERRORIST ORGANIZATION IN ORDER TO DEMONSTRATE A POTENTIALLY DANGEROUS COMPUTER CODE TO HIM. ................................. 29

A. Petitioner was correctly convicted under 18 U.S.C. § 2339B because she knowingly attempted to provide material support to Dixie Millions. .................. 30

1. Petitioner had the requisite knowledge of Dixie Millions’ connection to terrorism to be convicted under 18 U.S.C. § 2339B. ........................................ 31 2. Petitioner took substantial steps towards providing material support to Dixie Millions. .................................................................................................... 32

B. Petitioner cannot escape her prosecution and conviction under 18 U.S.C. § 2339B with purported violations of her First Amendment rights. .........................35

1. Respondent has met its burden under a strict scrutiny analysis. .............. 36 2. Section 2339B, as-applied to Petitioner’s actions, does not violate her Freedom of Association. .................................................................................... 38

C. The material support statute is not impermissibly vague under the Due Process Clause when applied to Petitioner’s actions. ...................................... 39

1. Section 2339B does not violate the Fifth Amendment because it provides a person of ordinary intelligence fair notice of its prohibitions. ........................ 40

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2. Section 2339B also grants the Government appropriate enforcement discretion. ........................................................................................................... 41

CONCLUSION .............................................................................................................. 43

APPENDIX A .................................................................................................................. I

APPENDIX B ............................................................................................................... III

APPENDIX C ................................................................................................................. V

v

TABLE OF AUTHORITIES

United States Supreme Court Cases

Abramski v. United States, 134 S. Ct. 2259 (2014) ........................................................................................ 19

Barrett v. United States,

423 U.S. 212 (1976) ............................................................................................ 17 Brandenburg v. Ohio.

395 U.S. 444 (1969) ............................................................................................ 11 Davis v. Michigan Dep't of Treasury,

489 U.S. 803 (1989) ............................................................................................ 19 Estate of Cowart v. Nicklos Drilling Co.,

505 U.S. 469 (1992) ............................................................................................ 18 Field v. Mans,

516 U.S. 59 (1995) .............................................................................................. 30 Grayned v. City of Rockford,

408 U.S. 104 (1972) ............................................................................................ 39 Gulf States Steel Co. v. United States,

287 U.S. 32 (1932) .............................................................................................. 20 Holder v. Humanitarian Law Project,

561 U.S. 1 (2010) ........................................................................................ passim Kolender v. Lawson,

461 U.S. 352 (1983) ............................................................................................ 41 Landreth Timber Co. v. Landreth,

471 U.S. 681 (1985) ............................................................................................ 18 Lewis v. City of Chicago, Ill.,

560 U.S. 205 (2010) ............................................................................................ 18 Papachristou v. City of Jacksonville,

405 U.S. 156 (1972) ...................................................................................... 41, 42

Staples v. United States, 511 U.S. 600 (1994) ...................................................................................... 13, 28

vi

United States v. Resendiz-Ponce, 549 U.S. 102 (2007) ............................................................................................ 30

United States v. Ron Pair Enterprises, Inc.,

489 U.S. 235 (1989) ............................................................................................ 18 United States v. Williams,

553 U.S. 285 (2008) ............................................................................................ 39 United States v. Wise,

370 U.S. 405 (1962) ............................................................................................ 20

United States Court of Appeals Cases

Logan v. U.S. Bank Nat. Ass'n, 722 F.3d 1163 (9th Cir. 2013) ............................................................................ 18

U.S. v. Farhane,

634 F.3d 127 (2d Cir. 2011) .......................................................................... 37, 39 United States v. Fredman,

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

152 F.3d 618 (7th Cir. 1998) .................................................................. 19, 21, 22 United States v. Morningstar,

456 F.2d 278 (4th Cir. 1972) ........................................................................ 19, 23 United States v. Oba,

448 F.2d 892 (9th Cir. 1971) ........................................................................ 24, 25 United States v. Posnjak,

457 F.2d 1110 (2d Cir. 1972) .................................................................. 20, 22, 27 United States v. Ross,

458 F.2d 1144 (5th Cir. 1972) ............................................................................ 24 United States v. Spoerke,

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

140 F.3d 229 (3d Cir. 1998) .................................................................... 19, 22, 23

vii

United States District Court Cases

Ballew v. United States, 389 F. Supp. 47 (D. Md. 1975) ........................................................................... 22

United States v. Marzook,

383 F. Supp. 2d 1056 (D. Ill. 2005) .............................................................. 42, 43 United States v. Seven Miscellaneous Firearms,

503 F. Supp. 565 (D.D.C. 1980) ......................................................................... 22 United States v. Tomkins,

No. 07 CR 227, 2013 WL 80365 (N.D. Ill. Jan. 4, 2013) ................................... 26

Legislative

26 U.S.C. § 5845(f)(3) ............................................................................................ passim

18 U.S.C.A. § 2339B .............................................................................................. passim

18 U.S.C. § 2339A .................................................................................................... 32, 33

H.R. Rep. No. 1577, 90th Cong., 2nd Sess. 1968, reprinted in 1968 U.S.C.C.A.N. 4410, 4412, 1968 WL 5325 (Conf. Rep.) ....................................................................... 17

S. Rep. 90-1097, S. Rep. No. 1097, 90TH Cong., 2ND Sess. 1968, 1968 U.S.C.C.A.N. 2112, 2114 1968 WL 4956 (Leg. Hist.) ......................................................................... 20

S. Rep. No. 1501, 90th Congress, 2d Sess., P. 533 (1968) ........................................... 21

Secondary Sources

ALI, Model Penal Code § 5.01(1)(c) (1985) ................................................................... 30 Bernadette Schell & Clemens Martin, Webster's New World Hacker Dictionary (2006) ....................................................................................................................... 31, 32 CLAY WILSON, CONG. RESEARCH SERV., RL32114, Computer Attack and Cyber Terrorism: Vulnerabilities and Policy Issues for Congress, 4 (2003). .................. 31, 32

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OPINIONS BELOW

The opinion of the United States Court of Appeals for the Fourteenth Circuit

is set out in the record. See R. 2-27.

STATUTORY PROVISIONS

A subsection of the Gun Control Act of 1968, also known as Title 1 of the

United States Firearms Law, 26 U.S.C. § 5845(f)(3), is relevant to this case. It is

reprinted in Appendix A.

A section under Title 18 of the United States Code, 18 U.S.C. § 2339B, is also

relevant to this case. It is reprinted in Appendix B.

A second section under Title 18 of the United States Code, 18 U.S.C. § 2339A,

is also relevant to this case. It is reprinted in Appendix C.

STATEMENT OF JURISDICTION

The decision of the United States Court of Appeals for the Fourteenth Circuit

affirmed the decision of the United States District Court for the Central District of

New Tejas, and was entered into on October 1, 2015. R. 2. Petitioner was then

granted writ of certiorari for the October 2015 term. Id. at 1. This Court has

jurisdiction over the case pursuant to 28 U.S.C. § 1254.

1

STATEMENT OF THE CASE

Respondent respectfully requests this Court to affirm the decision of the

United States Court of Appeals for the Fourteenth Circuit that affirmed Petitioner’s

prosecution and conviction under 26 U.S.C. § 5845(f)(3) and 18 U.S.C. § 2339B.

These statutes prohibit combining parts together into a destructive device, and the

material support of a terrorist organization, respectively.

Material Facts

A. Infamous Dixie Millions hacktivist, Clive Allen, releases the National Security Agency’s confidential information of its domestic monitoring activities. On November 22, 2011, millions of confidential government documents were

illegally released to the public. R. 5. The culprit was none other than Clive Allen.

Id. Allen was employed by the National Security Agency (“NSA”) in June 2009,

specializing in database design and management. Id. He applied his unique

knowledge and expertise to create predictive queries and comb through massive

databases to find connections. Id.

Allen was able to illegally release these documents to the Darknet, through

The Onion Router protocol, using his client to “set millions of secrets free.” Id.

Although the Darknet has occasionally been used for legitimate purposes, it is

widely utilized by hacktivists, such as Allen, to circumvent the law. See id. In

releasing these documents, Allen revealed himself as “Millions,” one of the two

ringleaders operating Dixie Millions. Id.

2

In recent years, Dixie Millions has been suspected of—and admittedly

responsible for—a plethora of attacks upon government and business security

systems. Id. Entities ranging from United States agencies to worldwide business

leaders have fallen prey to Dixie Millions’ attacks. Id. The United States Military

Network, the Central Intelligence Agency, the Federal Bureau of Investigation, the

International Monetary Fund, Interpol, and Google are just some of the numerous

targets of these security breaches. Id. The United States Secretary of State has

since declared Dixie Millions a foreign terrorist organization. Id.; see also R. 5, n. 1.

After the release of these confidential government documents, the Secretary

of State also declared Allen a criminal and initiated a nationwide search for his

detainment. R. 5. However, Allen was able to escape the reach of United States law

enforcement for several weeks. Id. Thereafter, Dixie Millions hacked numerous

websites and forced them to display threats from the foreign terrorist organization

implicating further releases of classified information. See R. 5-6. For the next four

months, these threats were consistently reinforced through various releases of

scandalous documents. R. 6.

After months of evading law enforcement, Allen released a video stating that

he had retired and planned to live out his life in the country of Azran. Id.

Predictably, Azran granted Allen asylum. Id. Azran’s official statement included a

stipulation that if a country were to attempt his capture on Azranian soil, it would

be considered an act of war. Id. Nevertheless, the United States continued its

3

negotiations with Azran for Allen’s arrest and extradition to the United States. See

id.

During discussions between the two countries, the United States learned of

Allen’s release of confidential NSA documents demonstrating the U.S.’s efforts to

record private conversations between the Azranian Ambassador to the United

Nations and the Azranian Prime Minister. Id. The U.S. attempted to strengthen its

leverage in these negotiations by simultaneously searching for Allen’s Dixie

Millions partner, “Dixie.” Id. However, this search of former associates and

classmates at the University of Misthallery was of no help. Id. The other half of

Dixie Millions remained unfound. Id. The resolution efforts between the countries

ultimately proved unsuccessful, and Allen remains in Azran. Id.

B. Petitioner meets with her teacher and prepares to study abroad at Allen’s alma mater in Azran, where Allen remains with grant of asylum.

Also during 2011, Petitioner grew closer to her physics teacher, Mrs. Ascot.

See R. 2-4, 7-9. Petitioner wished to learn more about the study abroad program,

“Technical Promise.” See R. 2-4. The program was pioneered as an initiative

between New Tejas University and Allen’s alma mater at the University of

Misthallery in Azran. R. 2-3. Importantly, the program was to run from June to

August 2012—soon after the latest documentation of Allen’s whereabouts in Azran.

R. 5.

The program allowed a graduating high school student to earn six college

science credits before freshman year, R. 2, so Petitioner sought the uniquely useful

4

advice of Ascot. R. 3. Ascot was a student during Technical Promise’s inaugural

year. R. 2-3. Ascot met frequently with Petitioner, individually, to discuss the

program further and hone Petitioner’s computer programming skills. R. 3. The two

also began to play a popular computer game together, as they grew even closer. R.

3-4. Ascot wrote a glowing letter of recommendation for Petitioner’s admission into

Technical Promise. R. 4.

Both Petitioner and her friend, Ms. Triton, were accepted to the program. R.

4. Petitioner spent most of her last semester of high school preparing for the trip

and becoming closer friends with Ms. Triton, as they both continued to meet with

Ascot. R. 3, 4-5. She also grew more enamored with Ascot, who frequently was a

dinner guest of Petitioner and her family. R. 4. Petitioner’s family was delighted

that she had found such a “good” role model. Id.

She also took an interest in working with Triton’s father. R. 6-7. Mr. Triton

owned a 3D printing kit, so he could hone his chemical engineering skills previously

used while working for an American weapons manufacturer. R. 7. His ultimate goal

was to make a plastic filament flexible enough to pass through the printer, but

strong enough to withstand a substantially greater amount of force than ordinary

filaments. Id. He also recognized the potential value of such a product. Id.

Petitioner eventually struck a deal with Mr. Triton to solve the software problems

that even his expertise could not correct. Id.

Petitioner was able to diagnose an error in the printer’s code that caused a

mechanical positioning error of less than half a centimeter. Id. She also recognized

5

the resulting printing error this would cause. Id. She then sought the help of Ascot

to resolve the issue. Id. During these meetings, the two also began to discuss the

hacks performed by Dixie Millions. R. 8. Ascot reassured Petitioner that Dixie

Millions were really “White Hat Hackers,” operating for social good. See id. In

addition, Ascot was able to provide the assistance necessary to finish the coding

solution in less than a week. Id.

Shortly thereafter, Petitioner demonstrated her successful efforts to Mr.

Triton and his daughter. R. 8-9. The installation of the new code worked flawlessly.

R. 9. During tests of the new code, Mr. Triton printed filaments that could be used

to support the making of a handgun capable of discharging multiple bullets. Id. In

addition, he also printed a perfect cylinder upon Petitioner’s request because he

knew this could help make the gun. R. 10. The following day, Mr. Triton

downloaded plans for a 3-D printed gun from the Internet. He knew this gun would

prove invaluable, so its plans were saved on a gold USB drive. Id.

Petitioner also began to actively research Allen within the Darknet before her

trip. R. 11. She charted his latest sightings, his disguises, and likely path as he

continued to evade law enforcement. R. 11-12. Petitioner calculated where Allen

would be on June 5, 2012, while she was studying abroad, based on the

mathematical formula that Allen used to plot his next move. See R. 12. She also

put a corresponding alert on her smart phone. Id.

Petitioner kept a copy of the computer code, along with a perfect cylinder that

she had printed with it. R. 9. After encouragement from Ascot, Petitioner took the

6

plans and the physical cylinder with her as she left for her trip. Id. Ms. Triton also

brought a second USB drive with the gun plans on it, while Petitioner brought a

small pack of matches and Allen’s tracking information. R. 12. Petitioner hoped “to

prove her hacker credentials in hopes that [Allen] would be so impressed he would

agree to mentor her.” R. 12.

C. Law enforcement personnel arrest Petitioner upon discovering her explosive device component and dangerous computer code. Triton’s father drove his daughter and Petitioner to the airport on the day

they planned to leave for Azran. R. 13. However, Mr. Triton negligently rolled

through a stop sign in sight of Officer Smith, of the Harrisburg Police Force. Id.

After pursuing Mr. Triton for nearly half a mile, Officer Smith’s flashing lights and

siren finally forced the car to pull over. R. 13-14.

Mr. Triton revealed that Petitioner and her friend were en route to their

study abroad program in Azran. R. 14. While Mr. Triton cooperated during the

stop, Officer Smith’s search returned record of his earlier speeding violation and the

corresponding warrant for Mr. Triton’s arrest. Id. Officer Smith carried out his

departmental duty and arrested Mr. Triton. Id.

Officer Smith remained with the girls while Mrs. Triton came to pick them up

at the site of the arrest to drive them to the airport. R. 14-15. While they waited, he

was able to see Petitioner’s phone when it alerted her of her upcoming meeting with

Allen. R. 15. Officer Smith immediately mirandized and arrested both girls

pursuant to a departmental memo warning of the possibility of Allen’s associate

being in the area. Id. Petitioner was arrested based on suspicion of aiding and

7

abetting a known fugitive and search warrants were issued. Id. The police

subsequently conducted a search of the girls’ various belongings, including

Petitioner’s luggage. R. 16.

Within Petitioner’s luggage, police found matches, hairspray, the 3D-printed

cylinder, a purple USB drive containing the dangerous code, a spreadsheet tracking

Allen, and a picture of Allen’s computer-generated likeness. Id. Officers also

searched the gold USB drive placed in the car’s stereo. Id. Among innocuous music

tracks on the thumb drive were the detailed plans for a 3D-printed gun. Id. Despite

Mr. Triton’s contentions, the Harrisburg police had no choice but to request

assistance from the FBI. Id.

The FBI began its part of the investigation by researching all individuals who

came into contact with Petitioner and her friend within the previous year. Id.

Through its efforts, the FBI discovered that Ascot had suspiciously quit her job

upon learning of the girls’ arrests. Id. She and her husband have since fled their

home, and have not yet been found by the FBI. Id.

As a result of these investigations, the United States Attorney filed charges

against Petitioner, along with Ms. Triton and her father. Id.

8

Procedural History

A. Petitioner’s trial and subsequent conviction under 26 U.S.C. § 5845(f)(3) and 18 U.S.C. § 2339B. Petitioner began her trial strategy by refusing to cooperate with the

Government’s plea offer. R. 16. She declined the plea offer requesting information

about Ascot, Allen, or Dixie Millions—claiming Ascot was innocent. Id. Despite her

first counsel’s advice to the contrary and plea deals entered into by Ms. Triton and

her father, Petitioner proceeded to trial. Id. Curiously, she also refused bail so that

her trial would move more quickly. R. 17. As a result, her trial in the District Court

soon began. Id.

A trial, the United States Attorney proffered testimony from FBI agents

specializing in monitoring Darknet activities. Id. These agents presented records

that demonstrated Petitioner’s activities within the network. Id. Petitioner

attempted to counter this evidence against her with cross-examination of the agents

through their testimony of her intentions to uncover legitimate security threats and

malicious corporate and government activity. Id. Nevertheless, these agents also

claimed that she voiced interest in meeting members of Dixie Millions, and Allen in

particular. Id.

The record also reflects that the FBI was virtually certain that Ascot was

Allen’s partner, “Dixie,” in their Dixie Millions operation. Id. To be sure, there was

documentation of her students consistently being mistakenly arrested as hackers or

suspected hackers. Id. Petitioner was left to her own devices in painting Ascot’s

reputation as positive, as Ascot was unavailable to testify at trial while still evading

9

law enforcement officials. Id. Although Petitioner testified that she had no direct

knowledge of her teacher’s connection to Dixie Millions, she did mention that it

would be “pretty cool” if Ascot truly was one half of the infamous hacktivist group.

Id. Moreover, the prosecution strengthened its case against her through evidence of

her support for Dixie Millions from her Twitter account. See R. 18.

There was also crucial testimony from an FBI ballistics expert that the

combination of the plastic filaments formula on one of Petitioner’s USB drives,

combined with the gun plans on the other, would create a device that could fire a

bullet. Id. Further, the 3D-printed cylinder, matches, and other items discovered by

the police could be combined into an explosive device. Id. The expert affirmed that

Petitioner had the requisite knowledge to fashion these items together in such a

way. Id.

When trial concluded, Petitioner was convicted under 26 U.S.C. § 5845(f)(3)

and sentenced to twelve months in prison. Id. She was also convicted under 18

U.S.C. § 2339B and sentenced to fifteen years in prison. Id. The two terms are to

run concurrently. Id.

B. Petitioner’s appeal to the United States Court of Appeals for the Fourteenth Circuit, where both convictions were affirmed.

Upon appeal, the Fourteenth Circuit upheld Petitioner’s convictions under

both 26 U.S.C. § 5845(f)(3) and 18 U.S.C. § 2339B. R. 21, 24. The court cited both

the technology and terrorism present in this case, and in recent terrorism efforts in

general, as especially important reasons to not disturb the District Court’s

judgment. R. 21.

10

1. The Fourteenth Circuit affirmed Petitioner’s conviction under § 26 U.S.C. 5845(f)(3) based on the mixed standard approach.

The court began its analysis by choosing the test to apply to Petitioner’s

appeal. R. 19. Although this was an issue of first impression with the court, it was

able to identify the authority of the circuit courts in favor of rejecting Petitioner’s

claim that the simplistic subjective approach should be used. R. 18-19. Indeed, the

subjective approach is “too simplistic to cover the threat of dangerous firearms after

recent terror attacks in New York and Boston.” R. 19. The court then further

resolved this preliminary issue by recognizing that the mixed standard should be

applied over the objective standard.1 R. 19.

In applying the mixed standard, the court avoided the ambiguities of the

subjective test and the limitations of the objective test. Id. Petitioner’s intentions

and actions, like those of Dixie Millions, were deemed impure and deserving of

heightened scrutiny. See R. 20. Her claim that she merely wanted to meet her role

model gave way to the real-world application potential these items had. Id. The

Court also pointed to findings by both the FBI and U.S. State Department. R. 18-20.

Moreover, the court found that while there may have been some social use to

her items discovered by the Harrisburg police, the realistic culmination of these

items showed a potential far more dangerous than simply the “advancement of

knowledge.” R. 19-20. Petitioner’s previous interest in explosives, and receiving

Allen’s approval of her plans, only strengthened the court’s conclusion. R. 20. The 1 Also included in the Fourteenth Circuit’s initial analysis was the finding that the items in Petitioner’s possession were in the stream of commerce. R. 19, n. 2. This is not challenged by Petitioner’s writ of certiorari, and is therefore undisputed here. Id.

11

items found in her luggage could form a pipe bomb and the 3D gun plans were

inherently capable of death or serious bodily harm. R. 20-21. The items’

functionality and intangible nature were of no impact under the court’s mixed

standard analysis. R. 21. The court reasoned that a failure to look past the

objective uses of Petitioner’s items would have led to an absurd result “as any

weapon or explosive device might be reduced to its individual components, each of

which could in turn be deemed innocuous.” See R. 19-20.

In a world marred by seemingly innocuous items being fashioned into deadly

devices, the court reasoned, the combination of Petitioner’s belongings here

presented a dangerous situation. See id. Therefore, the Fourteenth Circuit upheld

Petitioner’s conviction pursuant to 28 U.S.C. § 5845(f)(3). Id.

2. The Fourteenth Circuit also affirmed Petitioner’s conviction under 18 U.S.C. § 2339B, denying Petitioner’s First Amendment claims.

The Fourteenth Circuit was also unpersuaded by Petitioner’s claimed

violations of her constitutional rights. R. 21, 24. Specifically, the court disposed of

her First Amendment claim that the statute violated her right to freedom of speech

and freedom of association pursuant to Holder v. Humanitarian Law Project. See

561 U.S. 1 (2010); see also R. 21. Further, the court declined to re-perform the

Supreme Court’s analysis in Brandenburg v. Ohio. 395 U.S. 444 (1969). After

deciding that Petitioner’s strict scrutiny argument was of no merit, the court found

that § 2339B was constitutional as-applied to her actions. R. 21-24.

12

First, the majority was unpersuaded Petitioner’s argument that her actions

were committed independent of Dixie Millions and its operations. R. 22. Indeed, the

group embodies the prevalent and amorphous worldwide terrorist conglomerate.

See id. With aid of the Internet, groups like Dixie Millions lure individuals just like

Petitioner into their operations. R. 22. Petitioner “fit the exact profile of a member

of Dixie Millions,” and, at any rate, she “was already engaged in activities designed

to further the goals of Dixie Millions, making her membership status moot.” R. 22.

As a result, the court reasoned, Petitioner’s punishment is justified regardless of

her membership status within the group or criminal activity committed in the name

of Dixie Millions. R. 22. The court noted that to hold otherwise would be to turn a

blind eye to typical operations of these types of groups. See R. 23.

Second, the court found of no value that Petitioner’s computer code was

allegedly harmless and inevitably available to Dixie Millions regardless of

Petitioner’s actions. Id. The court held that 18 U.S.C. § 2339B was enacted to “de-

legitimize foreign terrorist groups and to prevent them from being enriched, even if

that enrichment is inadvertent.” R. 23. Indeed, Dixie Millions still would have

received a benefit of some kind from the code, as it qualifies as material support

under the purview of Section 2339B. R. 23-24.

The facts present indicated that Petitioner knowingly intended to bring

valuable resources and material support to a known terrorist organization. R. 24.

Therefore, Petitioner’s conviction pursuant to 18 U.S.C. § 2339B was affirmed. Id.

13

C. Circuit Judge Morgan’s dissent. Within the opinion issued by the Fourteenth Circuit below is a dissent by

Circuit Judge Morgan. R. 24-27. In his dissent, Judge Morgan disagreed with the

majority’s conclusions on both issues presented here. Id.

First, Judge Morgan agreed that the subjective standard should not apply in

addressing Petitioner’s conviction pursuant to 26 U.S.C. § 5845(f)(3). R. 24.

However, he disagreed with the ultimately appropriate standard to be used. R. 25.

Specifically, he argued for the application of the objective standard—instead of the

mixed standard employed by the majority. Id. Judge Morgan justified this strict

liability standard by pointing to the idea that this standard gives weight to the goal

of the statute. Id. Further, he claimed that the statute’s goal was to prevent the

dissembling and then reassembling of components in an attempt to circumvent the

law, rather than broaden the scope of devices that fall under § 5845(f). Id.

Second, Judge Morgan began his 18 U.S.C. § 2339B analysis with the

innocent intentions of Petitioner. R. 24-25. Further, he claimed the conviction

below violated Petitioner’s First Amendment rights. R. 25-26. Judge Morgan

anchored these conclusions with the majority’s supposed speculative fear of

hypothetical future violations of the statute. See id. He also recognized this Court’s

requirement of a mens rea consideration under the Gun Control Act in Staples v.

United States. 511 U.S. 600 (1994). Moreover, Judge Morgan took issue with the

majority’s explanation of coordinated versus individual activities, arguing that the

14

actions of one hacker are not necessarily coordinated with the actions of another

hacker. R. 26.

In addition, Judge Morgan argued that the majority’s application of Section

2339B violated Petitioner’s Fifth Amendment rights. R. 26. Moreover, he claimed

that Petitioner was simply attempting to advance her knowledge, without the

requisite knowledge that her actions violated federal law. R. 26-27. Judge Morgan

claimed that the statute failed to provide citizens of ordinary intelligence fair notice

of what it prohibits, or allot the Government appropriate discretion in its

enforcement. Id.

After the Fourteenth Circuit issued its decision, Petitioner subsequently filed

for writ of certiorari from this Court. R. 1. Certiorari was granted for the October

2015 term. Id.

15

SUMMARY OF THE ARGUMENT

I. This Court has not yet determined the proper standard of intent under 26

U.S.C. § 5845(f)(3). While there is some disagreement among the circuits, the

overwhelming understanding is that § 5845(f)(3) requires at least some analysis of

intent. A clear and consistent test has emerged, considering first whether the

component parts are objectively capable of being converted into a destructive device,

and if so, then considering whether the defendant intended to create such a device.

Statutory interpretation of § 5845(f)(3) supports the adoption of the mixed

standard of intent under the Gun Control Act. The plain language is clear in

defining intent to use component parts as an element of § 5845(f)(3). Furthermore,

the structure of the entire provision provides for consideration of intent when

analyzing a defendant’s possession of component parts. Moreover, the mixed intent

standard best serves Congress’ purpose in preventing gun violence without

preventing lawful ownership of guns.

The mixed intent standard combines the subjective and objective standards

to create a bright-line, two-step test that will provide the courts with a consistent,

reliable, and fair analysis of intent. The subjective and objective standards do not

give adequate deference to Congress’ prohibition of firearm violence without

limiting lawful gun ownership. Accordingly, this Court should affirm the decision of

the Fourteenth Circuit to adopt the mixed standard of intent and affirm Petitioner’s

conviction.

16

II. As to the second issue, Petitioner’s conviction under 18 U.S.C.A. § 2339B

should be affirmed for three reasons. First, Petitioner was aware that Clive Allen

was engaged in terrorist activity, yet attempted to provide the infamous hacker

with material support in the form of “training,” “expert advice or assistance,”

“personnel,” and “services.” Over the course of two and a half months, Petitioner

formed the intent to provide Clive Allen with material support, and subsequently

took substantial steps towards achieving her goals.

Second, Petitioner’s conviction should be affirmed because 18 U.S.C.A. §

2339B does not impermissibly infringe on her First Amendment rights to freedom of

speech or association when applied to her actions. Moreover, under a strict scrutiny

analysis, 18 U.S.C.A. § 2339B is narrowly tailored to advance the Government’s

interest by only targeting material support, and not independent advocacy. .

Lastly, 18 U.S.C.A. § 2339B is not impermissible vague as-applied to

Petitioner’s conduct. As this Court ruled in Holder v. Humanitarian Law Project,

narrowing definitions proffered by Congress have clarified 18 U.S.C.A. § 2339B’s

material support provisions, and allow a person of ordinary intelligence to

understand what type of conduct is proscribed. Furthermore, the limits on 18

U.S.C.A. § 2339B’s prosecutorial scope—promulgated in the Intelligence Reform

and Terrorism Prevention Act of 2004, and internal Justice Department

enforcement policy—have provided definitive standards that guard against

arbitrary enforcement. Therefore, this Court should affirm the decision of the

Fourteenth Circuit below.

17

ARGUMENT

I. THE FOURTEENTH CIRCUIT PROPERLY APPLIED THE MIXED STANDARD OF INTENT UNDER 26 U.S.C. § 5845(f)(3) IN AFFIRMING PETITIONER’S CONVICTION.

This Court has long held that Congress did not intend to regulate just the

interstate sale of firearms by enacting the Gun Control Act of 1968, but also

intended to “keep firearms away from the persons Congress identified as potentially

irresponsible and dangerous.” Barrett v. United States, 423 U.S. 212, 218 (1976).

Indeed, Congress noted that the “increasing rate of crime and lawlessness and the

growing use of firearms in violent crime clearly attest to a need to strengthen” gun

control laws. H.R. Rep. No. 1577, 90th Cong., 2nd Sess. 1968, reprinted in 1968

U.S.C.C.A.N. 4410, 4412, 1968 WL 5325 (Conf. Rep.).

It is with this fundamental purpose that Congress drafted 26 U.S.C. §

5845(f)(3). The Fourteenth Circuit had that same purpose in mind when it correctly

applied the mixed standard of intent and affirmed Petitioner’s conviction. R. 19.

This decision should be affirmed. While some courts have considered an objective or

subjective intent standard under § 5845(f)(3), neither standard is appropriate.

First, as the majority opinion acknowledged below, the subjective standard will

result in ambiguous and inconsistent convictions under the Gun Control Act. See R.

19. Second, the objective standard will produce absurd results by either attaching

criminal liability without considering all of the facts and circumstances, or allowing

a defendant to skirt liability on a technicality. R. 25.

18

In deciding that § 5845(f)(3) requires a mixed intent standard, this Court

would effectuate congressional intent, and would balance a defendant’s interest to

be free from wrongful incrimination with society’s interest to be free from gun

violence.

A. The language, structure, and legislative history of § 5845(f)(3) support a mixed standard of intent. Statutory interpretation requires the Court to consider the language of the

statute as written, the structure of the provision, and the legislative history of the

statute. See Logan v. U.S. Bank Nat. Ass'n, 722 F.3d 1163, 1171 (9th Cir. 2013).

The Court’s consideration must “give effect to the law that Congress enacted.”

Lewis v. City of Chicago, Ill., 560 U.S. 205, 217 (2010).

It has been this Court’s practice to begin with the language of the statute.

See Landreth Timber Co. v. Landreth, 471 U.S. 681, 685 (1985). Where the

language is unambiguous, the inquiry ends. See Estate of Cowart v. Nicklos Drilling

Co., 505 U.S. 469, 475 (1992). Indeed, “as long as the statutory scheme is coherent

and consistent, there generally is no need for a court to inquire beyond the plain

language of the statute.” United States v. Ron Pair Enterprises, Inc., 489 U.S. 235,

240-41 (1989).

Every circuit court has addressed the plain language of § 5845(f)(3) and it is

apparent that the statute provides for a consideration of intent. The Third Circuit,

for example, found that by “looking solely at the plain meaning of the words used by

Congress,” conviction will be proper when a defendant possesses “a combination of

parts intended for use in converting any device into a destructive device.” United

19

States v. Urban, 140 F.3d 229, 232 (3d Cir. 1998). Similarly, the Fourth Circuit

found that the plain language of the statute may impose liability on a defendant in

possession of component parts “depending on their intended use.” United States v.

Morningstar, 456 F.2d 278, 281 (4th Cir. 1972).

The language of § 5845(f)(3) is unambiguous. A defendant is in possession of

a destructive device under § 5845(f) when she possesses “any combination of parts

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

device.” 26 U.S.C. § 5845(f)(3). “Designed” and “intended” are separated by the

disjunctive term “or,” so the language clearly identifies only two situations in which

a combination of parts can be considered a destructive device: (1) either the parts

are designed for use in converting a device into a destructive device; or (2) the parts

are intended for use in converting a device into a destructive device. United States

v. Johnson, 152 F.3d 618, 625 (7th Cir. 1998).

What is ambiguous, however, is the level of intent required under §

5845(f)(3). Courts resolve statutory ambiguity by reading a provision “in [its]

context within the overall statutory scheme.” Davis v. Michigan Dep't of Treasury,

489 U.S. 803, 809 (1989). Interpreting the plain language of a provision requires

the courts to consider the structure of the overall statute. See Abramski v. United

States, 134 S. Ct. 2259, 2267 (2014) (considering the overall structure of the statute

at issue was critical in determining the meaning of a provision).

The structure of § 5845 clarifies that § 5845(f)(3) requires a mixed standard

of intent. Subsections (f)(1) and (f)(2) list specific types of weapons, the very

20

possession of which violates § 5861. Indeed, weapons enumerated under (f)(1) and

(f)(2) are so dangerous that “the intent of the user of these weapons [i]s irrelevant,

as they [are] so prone to abuse that they [are] considered per se dangerous and

unnecessary for legitimate pursuits.” United States v. Posnjak, 457 F.2d 1110, 1116

(2d Cir. 1972). Subsection (f)(3), however, was meant to preclude evasion of liability

under (f)(1) and (f)(2) “through possession of the unassembled components instead

of the assembled item.” Id.

The legislative history of the Gun Control Act further supports the finding

that § 5845(f)(3) calls for a mixed standard of intent. For decades, this Court has

held that, “[w]hen possible, every statute should be rationally interpreted with the

view of carrying out the legislative intent.” Gulf States Steel Co. v. United States,

287 U.S. 32, 45 (1932). Courts examine legislative history “to ascertain the intent of

Congress as to the ultimate purpose” of a statute. United States v. Wise, 370 U.S.

405, 414 (1962).

“Congressional concern, when it passed [the Gun Control Act], was to halt the

growing number of crimes in which guns were used to inflict or threaten bodily

harm.” Posnjak, 457 F.2d at 1115. It was not Congress’ intention, however, “to

place any undue or unnecessary restrictions or burdens on responsible, law-abiding

citizens.” S. Rep. 90-1097, S. Rep. No. 1097, 90TH Cong., 2ND Sess. 1968, 1968

U.S.C.C.A.N. 2112, 2114 1968 WL 4956 (Leg. Hist.). Congress accounted for

component parts being converted into a destructive device through design or intent

21

to avoid such restrictions or burdens. See S. Rep. No. 1501, 90th Congress, 2d Sess.,

P. 533 (1968).

The plain language defines intent to use component parts as an element of §

5845(f)(3). Further, the structure of the entire provision provides for consideration

of intent when analyzing a defendant’s possession of component parts, and the

mixed intent standard best serves Congress’ purpose in preventing gun violence

without preventing lawful ownership of guns. Therefore, the mixed standard

should apply.

B. This Court should adopt the mixed standard of intent, correctly employed by the Fourteenth Circuit, because it allows for fair and consistent adjudication. In determining which standard of intent to apply, circuit courts have

considered how best to effectuate the purpose of the Gun Control Act, while also

remaining alert to the fact that many people may be in possession of potentially

dangerous parts without any intent to be destructive. Federal courts agree that a

mixed standard appropriately and fairly balances these competing interests.

The mixed standard is a flexible, yet bright-line, two-step analysis of intent

because it considers both the objective use of the component parts and the

subjective intent of the user. The first step considers the component parts

objectively. “When the destructive nature of the devices or of the component parts

is obvious because they are suited only for a proscribed purpose, no inquiry into the

intent of the possessor is necessary.” Johnson, 152 F.3d at 627. Ending the inquiry

here will allow the courts to aggressively preempt the use of destructive devices by

22

prohibiting the possession of mere parts that are clearly designed for use in a

destructive device. Id.

Where, however, the component parts could serve both a legitimate and

illegitimate purpose, the second step considers the intent of the user because

“criminal liability only attaches when the possessor intends to possess a device for

destructive purposes.” Id. Intent is only “a necessary element, absent proof of

original design or redesign for use as a weapon.” United States v. Fredman, 833

F.2d 837, 839 (9th Cir. 1987). Courts have applied certain factors under the second

step of the mixed standard, including: (1) the positive, albeit incomplete steps,

toward creating the destructive device; and (2) whether the device may be readily

operable as a destructive device. See Ballew v. United States, 389 F. Supp. 47, 56

(D. Md. 1975); see also United States v. Seven Miscellaneous Firearms, 503 F.

Supp. 565, 573 (D.D.C. 1980).

Many of the circuits employ similar two-part tests. See e.g., United States v.

Spoerke, 568 F.3d 1236, 1248 (11th Cir. 2009) (declining to “adopt a standard

because the evidence of . . . intent, under any standard” was sufficient to convict

where defendant admitted that he was going to use the parts to make a pipe bomb);

Fredman, 833 F.2d at 840 (reversing conviction where there was no design to

convert the component parts and no “compelling indicia of criminal intent”); Urban,

140 F.3d at 234 (analysis of intent not necessary where “it is undisputed that the

parts were clearly designed to create” a destructive device); Posnjak, 457 F.2d at

1119 (“intention to convert the components into the ‘destructive device’ may be

23

important” where the components are capable of legitimate and illegitimate uses);

Morningstar, 456 F.2d at 281 (holding that an analysis of intent is required when

the component parts include commercial explosives capable of innocuous use).

The Third Circuit’s application of the two-step test is particularly instructive.

In Urban, the defendant was found in possession of explosives, a detonator, and a

pamphlet detailing the creation of a bomb. 140 F.3d at 231. The court declined to

consider the defendant’s intention in possessing the component parts because it was

clear that the instructions and parts were designed for use in constructing a

destructive device. Id. at 234.

Additionally, the Fourth Circuit applied both steps of the mixed standard test

and vacated a judgment because the commercial explosives and blasting caps the

defendant possessed were capable of being used for legitimate and illegitimate

purposes. Morningstar, 456 F.2d at 278, 281 (4th Cir. 1972). Despite the fact that

commercial explosives could be used in constructing a destructive device, the court

found that the defendant’s intent would be dispositive in determining criminal

liability under the Gun Control Act and remanded for an intent analysis. Id.

Application of the two-step mixed standard of intent test is appropriate here.

The record demonstrates that Petitioner was found in possession of component

parts capable of constructing a pipe bomb. R. 20-21. However, matches, hairspray,

a 3D cylinder, and computer codes may be considered innocuous items to possess. R.

16, 19.

24

Because the component parts could be used for both legitimate and

illegitimate uses, the intent analysis necessarily must advance to step two. See

United States v. Ross, 458 F.2d 1144, 1146 (5th Cir. 1972) (considering intent is

crucial because “a device that is commonly created for legitimate purposes . . . may

be perverted from that intended, ordinary purpose to an illegitimate end”). The jury

heard extensive evidence of Petitioner’s intention for the various items while in

Azran, and concluded beyond a reasonable doubt that she was in possession of items

either designed or intended for use in constructing a destructive device. R. 18.

The record shows that Petitioner researched Allen for weeks before leaving

for Azran, and conducted a thorough analysis to uncover his pattern of behavior. R.

11-12. Petitioner specifically packed the curve code and perfect cylinder to prove

her constructive and technological abilities to Allen. R. 12. She was found with

matches and hairspray, in addition to plans for a 3D gun and heat resistant plastic

filament. R. 16. The jury heard that Petitioner aspired to be a hacker just like Allen

and Dixie Millions. R. 17 (emphasis added). Hearing evidence of her intent, the jury

found, beyond all reasonable doubt, that Petitioner possessed component parts

under § 5845(f)(3). R. 18.

Furthermore, Petitioner’s reliance on United States v. Oba is misplaced.

There, the court was confronted with the specific question of whether commercial

explosives, like those used in mining, were considered a destructive device under §

5845(f)(1) or (2). 448 F.2d 892, 900 (9th Cir. 1971). The Ninth Circuit found that

Congress did not intend to “subject all those who use ordinary commercial

25

explosives to [the Gun Control Act’s] extremely rigorous regulatory scheme,

enforceable by heavy criminal penalties.” Id. at 903. As a result, the court required

an intent analysis under § 5845(f)(3) to determine whether the defendant intended

to use the commercial explosives to create a destructive device prohibited under §

5845(f)(1) or (2). Id. at 903.

That question does not exist here. The record is clear that Petitioner was

found in possession of designs to build a firearm, a device clearly included within

the Gun Control Act. R. 9, 16. Instead, the question is whether Petitioner was

found in possession of component parts intended for use in constructing a

destructive device. The jury found that she was. R. 18.

Application of the mixed standard of intent test protected Petitioner from

being convicted based solely on the fact that she possessed component parts

objectively capable of destructive use. Instead, the jury was given a complete

picture of the facts and circumstances surrounding Petitioner’s possession.

C. The subjective and objective standards are unworkable and inconsistent with the purpose of the Gun Control Act. Petitioner would have this Court adopt a subjective intent standard under §

5845(f)(3). Although the subjective intent standard gives every defendant the

opportunity to produce evidence of her intent in possessing component parts under §

5845(f)(3), such evidence, standing alone, does not consistently give effect to the

purpose of the Gun Control Act.

Where component parts are unequivocally designed to create a destructive

device, the intent analysis drops out of the equation to prevent a defendant from

26

attempting to skirt liability by possessing just the parts. “Congress determined

that it is illegal for someone to knowingly take all the components necessary to

build a bomb and put them in one place from which a functional destructive device

could be readily assembled.” United States v. Tomkins, No. 07 CR 227, 2013 WL

80365, at *9 (N.D. Ill. Jan. 4, 2013). The subjective standard would allow a

defendant to claim that, notwithstanding the objectively destructive design of

component parts, she did not intend to create a destructive device. Id. Such a claim

is irrelevant, and would do nothing but distract the fact-finder from the clear

evidence to the contrary. Id. As a result, the subjective intent standard produces

inconsistent results in similar situations because some defendants may appear

more credible than others, despite the fact that the component parts are clearly

capable of only one, illegitimate use.

On the other hand, the dissent below argues that the objective intent

standard is the appropriate test under § 5845(f)(3). R. 25. The objective standard,

according to the dissent, will attach criminal liability to the possession of

component parts capable of producing a destructive device in (f)(1) or (f)(2). The

dissent’s argument is flawed for two reasons.

First, there is no doubt that the component parts in Petitioner’s possession

were objectively capable of constructing one of the enumerated devices in (f)(1) or

(f)(2). R. 20-21. Thus, even applying the objective standard as the dissent presents

it, Petitioner’s conviction should be affirmed.

27

The dissent’s reliance on cases like Posnjak is faulty. The Second Circuit and

the dissent would allow a defendant to completely escape liability under the Gun

Control Act if the components in her possession could not create a destructive device

as literally described in (f)(1) or (f)(2). See Posnjak, 457 F.2d at 1119 (“The statute's

terms indicate that it was not intended to reach . . . ordinary commercial materials

through “intent” alone. The language implies at minimum the presence of parts

“intended” to “convert” any “device” into a destructive device akin to those referred

to in § 5845(f) (1) and (2)”).

Taking the reasoning of the dissent and the Second Circuit to its logical

conclusion, the courts would find themselves in the following situation. A

defendant, manifesting the intent to bomb a school using commercial explosives and

a lighter, and actually possessing those items as she walked into the school, would

not be guilty under the Gun Control Act because (f)(1) and (f)(2) do not explicitly

include commercial explosives. Surely Congress did not intend that a defendant

could skirt liability by being creative. As the Fourteenth Circuit noted, “[w]e must

accept that we live in a world where digital items can be made into tangible items in

the blink of an eye, and the law must keep pace with these realities.” R. 21.

Second, and more importantly, the objective standard imposes strict-liability

on a defendant in possession of component parts capable of constructing a

destructive device, and ignores any purpose or intent of the defendant. R. 25. This

standard does not give weight to the word “intended” in § 5845(f)(3), and instead

imputes the objectiveness of subparagraphs (1) and (2) to subparagraph (3). Id.

28

Such a narrow interpretation is too rigid and does not appropriately consider the

very purpose of the Gun Control Act. Indeed, this Court, in Staples, held that the

Gun Control Act did not dispense with a mens rea requirement. 511 U.S. at 616.

The severe penalties associated with convictions under the Gun Control Act

necessarily require at least some consideration of intent. Id. at 605.

Here, Petitioner possessed seemingly innocuous items that could easily be

converted into a pipe bomb. R. 21. This is the exact situation that Congress sought

to prevent in enacting the Gun Control Act. That is why § 5845(f)(3) requires courts

to consider the dangerous potential that the items pose once assembled. The jury

heard evidence tending to explain the legitimate and illegitimate uses of, and intent

behind, the objects that Petitioner possessed, and the jury convicted. The

Fourteenth Circuit, reviewing the evidence and applying the fair and flexible mixed

intent standard, affirmed. Respectfully, this Court should do the same.

* * *

The plain language, statutory structure, and legislative history behind the

Gun Control Act make clear that § 5845(f)(3) requires a mixed intent standard. In

practice, the mixed intent standard provides the fact finder with a complete picture

of the objective nature of the component parts and the subjective intent of the user.

Therefore, this Court should affirm Petitioner’s conviction under the mixed intent

standard of 26 U.S.C. § 5845(f)(3).

29

II. PETITIONER’S CONVICTION PURSUANT TO 18 U.S.C. § 2339B MUST BE AFFIRMED BECAUSE SHE PLANNED TO MEET A LEADER OF A KNOWN FOREIGN TERRORIST ORGANIZATION IN ORDER TO DEMONSTRATE A POTENTIALLY DANGEROUS COMPUTER CODE TO HIM.

In an evolving digital age, the United States faces the growing threat of

cyber-attacks. Globalization and constant interconnectivity have directly

heightened this threat, as a cyber terrorist can cripple an entire region into

darkness with one fell key stroke. Simply put, a successful cyber-attack on the

United States’ digital infrastructure would be devastating and would virtually

paralyze the nation.

Accordingly, law enforcement officials have been proactive in seeking

innovative solutions to stave off catastrophe. For example, federal prosecutors, like

those in the Central District of New Tejas, have applied the material support

statute, 18 U.S.C.A. § 2339B, to cases of cyber-terrorism. R. 18.

Congress enacted § 2339B in 1996 based on a finding that certain

organizations are so “tainted by their criminal conduct” that any contribution to

them facilitates that criminal conduct. Holder v. Humanitarian Law Project, 561

U.S. 1, 7 (2010). Section 2339B makes it a federal crime to “knowingly provide, or,

attempt or conspire to provide, material support or resources to a foreign terrorist

organization.” 18 U.S.C. § 2339B. This approach has been a necessary tool as the

government continues to thwart cyber-attacks. When applied to the present facts,

Petitioner’s prosecution and conviction pursuant to 18 U.S.C. § 2339B must be

affirmed because she did exactly what the material support statute seeks to

30

prevent—an attempt to provide material support to a known foreign terrorist

organization.

A. Petitioner was correctly convicted under 18 U.S.C. § 2339B because she knowingly attempted to provide material support to Dixie Millions.

Petitioner was correctly convicted pursuant to the statutory terms of § 2339B.

It is well established that where Congress uses terms that have accumulated settled

common law meanings, courts must read those terms within their established

meanings. Field v. Mans, 516 U.S. 59, 69 (1995). Without any indication to the

contrary, there is no reason to doubt Congress’ intention to codify the common law

definition of “attempt” when the term is used in § 2339B. Id. As such, “an attempt

to commit a crime requires that some act be done towards carrying out the

perpetrators intent.” United States v. Resendiz-Ponce, 549 U.S. 102, 106-107 (2007).

Recently, courts have recognized that the requisite overt act must be a

“substantial step” towards completing the offense. Id.; see also ALI, Model Penal

Code § 5.01(1)(c) (1985) (defining “criminal attempt” to include “an act or omission

constituting a substantial step in a course of conduct planned to culminate in his

commission of the crime.”). Under either definition, however, there must be some

significant conduct. See Resendiz-Ponce, 549 U.S. at 106-07.

Importantly, both parties agree with the Secretary of State’s declaration of

Dixie Millions as a foreign terrorist organization. R. 5, n.1. Here, Petitioner formed

the intent to provide material support to Clive Allen—the leader of Dixie Millions—

and subsequently took a substantial step toward consummation of that support.

31

Specifically, over the course of two and a half months, Petitioner formed the intent

to provide Clive Allen with: (1) “training;” (2) “expert advice or assistance;” (3)

“personnel;” and (4) “service.” See 18 U.S.C. § 2339B.

1. Petitioner had the requisite knowledge of Dixie Millions’ connection to terrorism to be convicted under 18 U.S.C. § 2339B.

Congress has taken legislative steps to limit § 2339B’s scope. Humanitarian

Law Project, 561 U.S. at 35. Notably, Congress narrowed the statute’s scienter

requirement. Id. at 16. Under § 2339B, a person accused of providing, or

attempting to provide, material support is only culpable if they have knowledge of

the group’s status as a foreign terrorist organization; or, knowledge that the group

engages in “terrorism” or “terrorist activity.” Id. However, the actual intent to

further those terrorist activities is not required for violation of § 2339B.

Here, Petitioner had knowledge that infamous hacktivist Allen engaged in

cyber-terrorism. Cyber-terrorism is often referred to as a tool used by terrorists to

hijack computer systems over the Internet. Bernadette Schell & Clemens Martin,

Webster's New World Hacker Dictionary at 87 (2006) (providing various definitions

of the general term cyber-terrorism). In response to this threat, the Department of

Homeland Security and the Department of Defense have defined cyber-terrorism as

“any criminal act conducted with computers and resulting in violence, destruction,

or death of its targets . . . and including attacks on computer networks and

transmission lines . . . ” CLAY WILSON, CONG. RESEARCH SERV., RL32114, Computer

Attack and Cyber Terrorism: Vulnerabilities and Policy Issues for Congress, 4

32

(2003). Accordingly, the definition encompasses everything from the unleashing of

weapons of mass disruption to basic hacking. Schell & Martin, supra, at 42-54

(providing a very broad definition of cyber-terrorism and different ways in which

cyber-terrorism can help terrorists achieve their goals).

Dixie Millions, with Allen at its helm, has taken responsibility for numerous

attacks on the United States. Specifically, the United States Military Network,

Central Intelligence Agency, Federal Bureau of Investigation, International

Monetary Fund, Interpol, Google, and other financial institutions have all fallen

prey to Dixie Millions’ cyber attacks. R. 5. Petitioner was not only aware of Clive

Allen’s hacking, but also enamored by it. Id. at 11. She actively researched Clive

Allen and discussed his attacks with her teacher. Id. at 8, 11. Petitioner even hoped

to gain Allen’s support as a mentor and be guided under his tutelage. Id. at R. 12.

Therefore, Petitioner had the requisite knowledge of the terroristic tendencies of

Dixie Millions and Allen.

2. Petitioner took substantial steps towards providing material support to Dixie Millions.

Congress has provided narrowing definitions for § 2339B’s key terms.

Humanitarian Law Project, 561 U.S. at 21. Most importantly, Congress clarified

“material support” by providing definitions for the terms “training,” “expert advice

or assistance,” and “personnel.” See 18 U.S.C. § 2339B. The fact that Petitioner’s

material support was of an intangible nature is of no consequence. See 18 U.S.C. §

2339B(g)(4); see also 18 U.S.C. § 2339A(b)(1) (prohibiting “tangible or intangible”

material support).

33

First, Petitioner intended to provide Dixie Millions with “training” by

planning to impart Dixie Millions with the specific skill of 3-D printing a perfect

cylinder through application of Petitioner’s unique computer code. R. 12. Section

2339B defines “training” as, “instruction, or teaching, designed to impart a specific

skill, as opposed to general knowledge.” See 18 U.S.C.A. § 2339B(g)(4) (1996); see

also 18 U.S.C. § 2339A(b)(2). Applying a unique computer code to newfound 3-D

printing technology, and correcting a printing error of less than half a centimeter, is

a quintessentially specific skill. See R. 7. In fact, it took Petitioner eleven days to

learn the specific skill. Id. at 7-8. Befuddled, she sought the assistance of her

physics teacher, Ascot. Id. The FBI is nearly certain that Ascot is the hacker

“Dixie” of Dixie Millions. Id. at R. 17. It took four days of Ascot’s intense labor to

fully solve the printing error. R. 8. Then, after solving the computer code, Petitioner

intended to impart that knowledge onto Allen. Id. at R. 12. She intended to show

Allen the code in hopes that he would agree to mentor her. Id. Such collaboration

and conveying of information is exactly what § 2339B is meant to prohibit.

Moreover, Petitioner formed the intent to provide Dixie Millions with “expert

advice or assistance.” Section 2339B defines “expert advice or assistance” as,

“advice or assistance that is derived from scientific, technical, or specialized

knowledge.” Humanitarian, 561 U.S. at 12-13. Here, Petitioner perfected her

computer code over an eleven-day span and hoped to show it to Dixie Millions’

leader, Clive Allen. R. 7-8, 12-13. Petitioner derived her computer coding and 3-D

printing skills from the scientific, technical, and specialized support she received

34

from Ascot. See id. at 7-8. Ascot tutored Petitioner on how to program in computer

code generally, Id. at 4, and on how to use her perfected code to print a perfect

cylinder. Id. at 8. Armed with this knowledge, Petitioner was in a unique position

to cooperate with Allen. Thus, Petitioner’s plans to demonstrate the vexing

computer code to Allen violated § 2339B’s prohibition on “expert advice or

assistance.”

Next, by planning to meet with Allen in Azran, Petitioner intended to provide

Dixie Millions with “personnel.” Under § 2339B, a defendant provides a foreign

terrorist organization with “personnel” when she attempts to provide, conspires to

provide, or in fact provides, one or more individuals (including the accused

themselves) to work under the foreign terrorist organizations direction or control.

Humanitarian, 561 U.S. at 13. Here, Petitioner intended to provide herself as a

trainee to work under Allen. R. 11-12. Petitioner even admitted to Ms. Triton the

night before her trip that she longed to find a mentor. Id. at 13. This, she hoped,

would lead to a long-term relationship; one in which Clive Allen would guide her in

becoming a hacker. Id. at 11. These aspirations evidence an intention to provide

personnel to a foreign terrorist organization.

Finally, by intending to provide Dixie Millions with “personnel,” Petitioner

simultaneously formed the intent necessary to provide the foreign terrorist

organization with “services.” “Services,” as defined by this Court in Humanitarian

Law Project are “concerted activities performed in coordination with, or at the

direction of, a foreign terrorist organization.” 561 U.S. at 23-24. However,

35

independent advocacy is outside the purview of this definition. Id. Accordingly, by

plotting to be Allen’s apprentice, Petitioner did not seek to advocate for hacktivism

independently, but rather, alongside the foreign terrorist organization.

With the intent to violate each of these provisions, Petitioner then committed

overt acts to convert her intent to provide material support into an attempt to

provide material support. She packed her bags with the thumb drive containing the

computer code; a perfectly printed cylinder as proof that the code worked; and a

spreadsheet of Allen’s daily locations. R. 12. She then used one of her computer

games to design a character to replicate disguises that Allen was known to wear in

Azran. Id. She printed a picture of this Allen character look-alike as reference, and

then created a calendar event in her smart phone labeled “Meet Clive Allen at

Café”. Id. But for the intervention of Officer Smith as Petitioner traveled to the

airport, Petitioner would have boarded the plane to Azran, See R. 14, and in all

likelihood, consummated her plan to provide material support to Clive Allen.

B. Petitioner cannot escape her prosecution and conviction under 18 U.S.C. § 2339B with purported violations of her First Amendment rights.

Petitioner raises two First Amendment claims in an attempt to invalidate her

conviction under § 2339B. R. 21. She claims that § 2339B violates her freedom of

speech and freedom of association. R. 21. This Court has already found § 2339B

constitutional on its face because it does not substantially interfere with First

Amendment freedoms. See Humanitarian Law Project, 561 U.S. at 21-22. The

Fourteenth Circuit affirmed that holding as it relates to Petitioner. In the

36

alternative, Petitioner alleges that § 2339B impermissibly infringes on her First

Amendment freedoms as-applied to her specific conduct. R. 21. Nevertheless, this

claim is meritless.

1. Respondent has met its burden under a strict scrutiny analysis.

In Humanitarian Law Project, this Court posited that where a generally

applicable statute prohibits conduct that communicates a message based on the

content of that message, freedom of speech is implicated and the most demanding

standard of scrutiny applies. Id. at 28. Here, Section 2339B regulates Petitioner’s

conduct based on the content of her speech. Id. Specifically, under the “training”

provision, if a defendant’s communication to a foreign terrorist organization imparts

general knowledge, the speech is permissible. See id. at 27. However, if the

defendant’s speech imparts a specific skill, § 2339B is violated. Id. Thus, this Court

in Humanitarian Law Project flatly rejected the application of intermediate

scrutiny to § 2339B. Id. at 28.

However, even under strict scrutiny analysis, Petitioner’s First Amendment

claims must fail. Respondent meets its burden because it has a compelling interest,

and § 2339B is narrowly tailored to further that interest. As this Court ruled in

Humanitarian Law Project, the Government’s interest in combating terrorism is an

urgent objective of the highest order that outweighs any burden imposed on a

defendant. 561 U.S. at 40.

Such a compelling interest is evidenced here. On his own, Allen has illegally

released millions of documents stolen from the NSA. R. 5. As a duo, Dixie Millions

37

has hacked United States government agencies and leading business, and have

threatened to hack vital infrastructure to release classified documents. R. 5. These

agencies possess crucial financial and administrative secrets place the United

States security interest at risk. See R. 5.

In addition, § 2339B is narrowly tailored to further the interest of combating

terrorism. Humanitarian Law Project, 561 U.S. at 26. As the Second Circuit

reasoned in United States v. Farhane, Ҥ 2339B leaves persons free to say anything

the wish, on any topic, including terrorism . . . [i]t does not seek to suppress ideas or

opinions.” 634 F.3d 127, 137 (2d Cir. 2011). The statute only reaches one specific

form of conduct—material support. Humanitarian, 561 U.S. at 32. The specificity of

conduct prohibited by § 2339B demonstrates its narrow tailoring. See id. at 25.

Lastly, § 2339B’s narrow scope furthers the Government’s interests

efficiently. It ensures that no material support, of any kind, will reach foreign

terrorist organizations. Humanitarian, 561 U.S. at 36-37. Moreover, the prohibition

of support that is “material” further demonstrates the statute’s narrow focus. See 18

U.S.C. § 2339B. Congressional findings have warned that foreign terrorist

organizations are so tainted by their criminal conduct that any contribution to them

facilitates criminal conduct. Humanitarian Law Project, at 8. This Court has ruled

that § 2339B is adequate to further the Governments interest in combating

terrorism. See id. at 36. With the enactment of 2339B, the Government can

adequately respond to evolving cyber threats such as the computer coding and 3-D

38

printing present in this case. Therefore, even if this Court uses a strict scrutiny

analysis, Petitioner’s conviction under 18 U.S.C. § 2339B must be affirmed.

2. Section 2339B, as-applied to Petitioner’s actions, does not violate her Freedom of Association.

Similar to Petitioner’s freedom of speech claim, her freedom of association

claim must also fail. This Court has noted that it would be strange if the

Constitution permitted Congress to prohibit certain forms of speech that constitute

material support, but did not permit Congress to only prohibit that support to

dangerous and lawless foreign organizations. Humanitarian Law Project, 561 U.S.

at 40.

However, what is particularly dispositive of this claim is § 2339B’s express

aim to not penalize mere association with a foreign terrorist organization. Id. at 39-

40. In fact, a person is free to vigorously advocate for a foreign terrorist

organization as they wish, so long as the advocacy is done independently. Id. The

only action prohibited is providing, or attempting to provide, material support. Id.

at 32. Here, Petitioner has attempted to travel to Azran and personally provide

Dixie Millions with an invaluable computer code and 3-D printing plans. R. 24.

Such concerted activity goes beyond independent advocacy or mere association. Id.

at 23-24. Therefore, Petitioner’s freedom of association claim is without merit and

this Court should affirm the Fourteenth Circuit’s decision below.

39

C. The material support statute is not impermissibly vague under the Due Process Clause when applied to Petitioner’s actions. As an outgrowth of the Due Process Clause of the Fifth Amendment, the

Vagueness Doctrine promotes several constitutional values. United States v.

Williams, 553 U.S. 285, 395 (2008); Grayned v. City of Rockford, 408 U.S. 104, 108-

109 (1972). Vague laws trap the innocent by not providing fair warning of what is

proscribed; they impermissibly delegate policy matters to policemen, judges, and

juries, for resolution on an ad hoc and subjective basis; and uncertain meanings

lead citizens to “steer far wider of the unlawful zone' . . . than if boundaries were

clearly marked.” Id. Accordingly, a statute is deemed constitutional under the

Vagueness Doctrine if it: (1) provides a person of ordinary intelligence fair notice of

what is prohibited; and (2) promulgates standards to protect against arbitrary and

discriminatory enforcement.” Id. at 304.

When performing the as-applied review, courts typically follow the maxim

that as between two possible interpretations of a statute, one finding the statute

valid and the other unconstitutional, a court's “plain duty is to adopt that which will

save the Act. ” Farhane, 634 F.3d 1308. Further, 2339B must be clear when applied

to Petitioner’s conduct here, and not necessarily in every conceivable application.

See Humanitarian Law Project, 561 U.S. at 21. Accordingly, Petitioner’s vagueness

claim must fail.

40

1. Section 2339B does not violate the Fifth Amendment because it provides a person of ordinary intelligence fair notice of its prohibitions.

In order to provide the necessary notice under the Fifth Amendment,

statutory terms must be facially clear and untethered from subjective judgments.

Humanitarian Law Project, 561 U.S. at 21. Moreover, this Court has reasoned that

fair notice under § 2339B involves a defendant’s awareness that advocacy

performed for a foreign terrorist organization is prohibited, rather than advocacy

performed independently. Id. at 24.

In Humanitarian Law Project, this Court applied the Vagueness Doctrine to

facts similar to those at issue here. That case involved six domestic organizations

that wished to provide material support to the “legitimate activities” of two

notorious foreign terrorist organizations. Humanitarian, 561 U.S. at 29.

Specifically, the defendants attempted to provide members with training on the use

of international law to peacefully resolve disputes, and how to petition the United

Nations for relief. Id. at 14. At issue in the defendants’ vagueness challenge were

the statutory terms “training,” “expert advice or assistance, “service,” and

personnel.” Id. at 10.

Accordingly, this Court ruled that as-applied to the defendants in

Humanitarian, a person of ordinary intelligence would understand that instruction

on how to petition the United Nations and resolve disputes through international

law, is a specific skill derived from specialized knowledge—falling within the reach

of § 2339B’s prohibition. Id. at 22. In addition, this Court found that a person of

41

ordinary intelligence would also understand the terms “service,” and “personnel,”

impugn advocacy performed for a foreign terrorist organization, rather than

independently. Id. at 24.

Here, Petitioner violated the same statutory terms of § 2339B that

defendants violated in Humanitarian Law Project. She knowingly attempted to

provide “training,” “expert advice or assistance,” “personnel,” and “services,” to

Allen and Dixie Millions. A person of ordinary intelligence would understand that

attempting to demonstrate a unique 3-D printing computer code to Clive Allen is a

specific skill, rather than general knowledge. See Humanitarian, 561 U.S. at 13.

The potential use of this code would appear especially useful to a cyber-terrorist

organization, such as Dixie Millions. Likewise, that same person of ordinary

intelligence would recognize that knowledge of the computer code was derived from

the specialized knowledge of Ascot. Id. Finally, a person of ordinary intelligence

would understand that attempting to provide oneself, as a mentee, would fall under

§ 2339B. Id. at 24. Section 2339B is thus in harmony with the notice requirement of

the Vagueness Doctrine.

2. Section 2339B also grants the Government appropriate enforcement discretion.

The second requirement of Vagueness Doctrine focuses on whether a statute

provides standards that guard against arbitrary enforcement. Kolender v. Lawson,

461 U.S. 352, 358 (1983). This requirement demonstrates the understanding that

sufficient minimal guidelines for law enforcement personnel prevent them from

42

pursuing their own personal predilections. Papachristou v. City of Jacksonville, 405

U.S. 156, 170 (1972).

For example, in Papachristou, this Court invalidated a city ordinance for

failure to provide standards governing law enforcement’s exercise of discretion. Id.

at 162. There, an anti-vagrancy ordinance prohibited nearly thirty separate

categories of public conduct. Id. at 157. In fact, the statute was so arbitrary that in

one instance a man was arrested for loitering in a driveway after being commanded

to stand in the driveway by another officer. Id. at 159. The ordinance cast such an

ad hoc net that even normally innocent conduct was deemed criminal. Id. at 163. To

be sure, the ordinance led to arbitrary arrest and erratic convictions. Id.

That is not the case here. Section 2339B is incomparable to the ordinance in

Papachristou. While the ordinance gave law enforcement unfettered discretion

there, Congress expressly limited § 2339B’s scope with the Intelligence Reform and

Terrorism Prevention Act of 2004 (IRTPA). Humanitarian, 561 U.S. at 12. The

IRTPA clarifies the mental state necessary to violate § 2339B, and requires

knowledge of the foreign group's designation as a terrorist organization, or the

group's commission of terrorist acts. Id. Thereafter, the Department of Justice

promulgated an explicit internal policy to limit the risk of arbitrary enforcement of

this statute. United States v. Marzook, 383 F. Supp. 2d 1056, 1072, n. 9 (D. Ill.

2005). Mirroring the IRTPA, the Justice Department policy states that “a person

may only be prosecuted under § 2339B for providing “personnel”… if that person

has knowingly provided … one or more individual’s … under the foreign entity's

43

direction or control.” Id. The policy also sufficiently protects independent actors. Id.

These guidelines demonstrate that law enforcement is only permitted to target

individuals who attempt to subordinate themselves to a foreign terrorist

organization. Such specificity prevents invalidation based on vagueness, as

Petitioner’s conduct falls well within § 2339B purview.

* * *

Providing foreign terrorist groups with material support in any form furthers

terrorism by undermining cooperative efforts between nations to prevent terrorist

attacks. Humanitarian Law Project, 561 U.S. at 32 (emphasis added). Accordingly,

this Court should affirm Petitioner’s conviction under 18 U.S.C. § 2339B because

she attempted to provide material support to a foreign terrorist organization.

CONCLUSION

For the foregoing reasons, Respondent respectfully requests that this Court

affirm the decision of the United States Court of Appeals for the Fourteenth Circuit.

Respectfully Submitted, /s/ Team No. 46 Team No. 46 Counsel for Respondent

I

Appendix A 26 U.S.C § 5845- Definitions (f) Destructive Device The term “destructive device” means (1) any explosive, incendiary, or poison gas (A)

bomb, (B) grenade, (C) rocket having a propellant charge of more than four ounces,

(D) missile having an explosive or incendiary charge of more than one-quarter

ounce, (E) mine, or (F) similar device;

(2) any type of weapon by whatever name known which will, or which may be

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

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

diameter, except a shotgun or shotgun shell which the Secretary finds is generally

recognized as particularly suitable for sporting purposes; and

(3) any combination of parts either designed or intended for use in converting any

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

which a destructive device may be readily assembled. The term “destructive device”

shall not include any device which is neither designed nor redesigned for use as a

weapon; any device, although originally designed for use as a weapon, which is

redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar

device; surplus ordnance sold, loaned, or given by the Secretary of the Army

pursuant to the provisions of section 4684(2), 4685, or 4686 of Title 10 of the United

States Code; or any other device which the Secretary finds is not likely to be used as

II

a weapon, or is an antique or is a rifle which the owner intends to use solely for

sporting purposes.

III

Appendix B

18 U.S.C.A. § 2339B- Providing material support or resources to designated foreign terrorist organizations (a) Prohibited activities.--

(1) Unlawful conduct.-- Whoever knowingly provides material support or

resources to a foreign terrorist organization, or attempts or conspires to do so, shall

be fined under this title or imprisoned not more than 20 years, or both, and, if the

death of any person results, shall be imprisoned for any term of years or for life. To

violate this paragraph, a person must have knowledge that the organization is a

designated terrorist organization (as defined in subsection (g)(6)), that the

organization has engaged or engages in terrorist activity (as defined in section

212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has

engaged or engages in terrorism (as defined in section 140(d)(2) of the Foreign

Relations Authorization Act, Fiscal Years 1988 and 1989).

. . .

(g) Definitions.—As used in this section—

(1) the term “classified information” has the meaning given that term in section

1(a) of the Classified Information Procedures Act (18 U.S.C. App.);

(2) the term “financial institution” has the same meaning as in section 5312(a)(2) of

title 31, United States Code;

(3) the term “funds” includes coin or currency of the United States or any other

country, traveler’s checks, personal checks, bank checks, money orders, stocks,

IV

bonds, debentures, drafts, letters of credit, any other negotiable instrument, and

any electronic representation of any of the foregoing;

(4) the term “material support or resources” has the same meaning given that term

in section 2339A (including the definitions of “training” and “expert advice or

assistance” in that section);

(5) the term “Secretary” means the Secretary of the Treasury; and

(6) the term “terrorist organization” means an organization designated as a

terrorist organization under section 219 of the Immigration and Nationality Act.

(h) Provision of personnel.—No person may be prosecuted under this section in

connection with the term “personnel” unless that person has knowingly provided,

attempted to provide, or conspired to provide a foreign terrorist organization with 1

or more individuals (who may be or include himself) to work under that terrorist

organization’s direction or control or to organize, manage, supervise, or otherwise

direct the operation of that organization. Individuals who act entirely independently

of the foreign terrorist organization to advance its goals or objectives shall not be

considered to be working under the foreign terrorist organization’s direction and

control.

(i) Rule of construction.—Nothing in this section shall be construed or applied

so as to abridge the exercise of rights guaranteed under the First Amendment to the

Constitution of the United States.

V

Appendix C

18 U.S.C. § 2339A- Providing material support to terrorists

(a) Offense.-- Whoever provides material support or resources or conceals or

disguises the nature, location, source, or ownership of material support or

resources, knowing or intending that they are to be used in preparation for, or in

carrying out, a violation of section

32, 37, 81, 175,229, 351, 831, 842(m) or (n), 844(f) or (i), 930(c), 956, 1091, 1114, 1116, 12

03, 1361, 1362, 1363, 1366, 1751, 1992, 2155, 2156, 2280, 2281,2332, 2332a, 2332b, 2332f,

2340A, or 2442 of this title, section 236 of the Atomic Energy Act of 1954 (42U.S.C.

2284), section46502 or 60123(b)oftitle49, or any offense listed in section

2332b(g)(5)(B) (except for sections 2339A and 2339B) or in preparation for, or in

carrying out, the concealment of an escape from the commission of any such

violation, or attempts or conspires to do such an act, shall be fined under this title,

imprisoned not more than 15 years, or both, and, if the death of any person results,

shall be imprisoned for any term of years or for life. A violation of this section may

be prosecuted in any Federal judicial district in which the underlying offense was

committed, or in any other Federal judicial district as provided by law.

(b) Definitions.--As used in this section--

(1) the term “material support or resources” means any property, tangible or

intangible, or service, including currency or monetary instruments or financial

securities, financial services, lodging, training, expert advice or assistance,

safehouses, false documentation or identification, communications equipment,

VI

facilities, weapons, lethal substances, explosives, personnel (1 or more individuals

who may be or include oneself), and transportation, except medicine or religious

materials;

(2) the term “training” means instruction or teaching designed to impart a specific

skill, as opposed to general knowledge; and

(3) the term “expert advice or assistance” means advice or assistance derived from

scientific, technical or other specialized knowledge.