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No. 08-2677
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
UNITED STATES OF AMERICA,
PLAINTIFF-APPELLEE,
v.
CAROL ANNE BOND,
DEFENDANT-APPELLANT.
________________
On Appeal from the United States District Court
for the Eastern District of PennsylvaniaCriminal Case No. 07-528
________________
DEFENDANT-APPELLANTS
SUPPLEMENTAL REPLY BRIEF________________
Ashley C. Parrish
Adam M. Conrad
KING & SPALDING LLP
1700 Pennsylvania Avenue, N.W.Washington, DC 20006
Telephone: (202) 737-0500
Facsimile: (202) 626-3737
aparrish@kslaw.com
aconrad@kslaw.com
Dated: October 14, 2011
Paul D. Clement
Counsel of Record
Conor B. Dugan
BANCROFT PLLC1919 M Street, NW, Suite 470
Washington, DC 20036
Telephone: (202) 234-0090
Facsimile: (202) 234-2806
pclement@bancroftpllc.com
cdugan@bancroftpllc.com
Robert E. Goldman
ROBERT E. GOLDMAN LLCP. O. Box 239
Fountainville, PA 18923
Telephone: (215) 348-2605
Facsimile: (215) 348-8046
reg@bobgoldmanlaw.com
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TABLE OF AUTHORITIES
Cases
Alden v. Maine,
527 U.S. 706 (1999) .............................................................................................17
Asakura v. City of Seattle,
265 U.S. 332 (1924) ...............................................................................................5
Bond v. United States,
131 S. Ct. 2355 (2011) .....................................................................................2, 16
Bray v. Alexandria Womens Health Clinic,
506 U.S. 263 (1993) .............................................................................................20
Brecht v. Abrahamson,
507 U.S. 619 (1993) .............................................................................................20
De Geofroy v. Riggs,
133 U.S. 258 (1890) .............................................................................................15
Gonzales v. Raich,
545 U.S. 1 (2005) ................................................................................ 2, 18, 25, 26
In re Teleglobe Communications Corp.,
493 F.3d 345 (3d Cir. 2007) .................................................................................25
Jones v. United States,
529 U.S. 848 (2000) ...................................................................................... 19, 21
Linder v. United States,
268 U.S. 5 (1925) .................................................................................................18
Mark v. Borough of Hatboro,
51 F.3d 1137 (3d Cir. 1995) .................................................................................25
Mayor of New Orleans v. United States,
35 U.S. 662 (1836) ...............................................................................................17
McCulloch v. Maryland,
17 U.S. 316 (1819) ...............................................................................................17
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Medellin v. Texas,
552 U.S. 491 (2008) ...............................................................................................7
Missouri v. Holland,
252 U.S. 416 (1920) .................................................................................. 1, 2, 8, 9
New York v. United States,
505 U.S. 144 (1992) ...................................................................................... 17, 19
NLRB v. Jones & Laughlin Steel Corp.,
301 U.S. 1 (1937) .................................................................................................20
Pareja v. United States,
615 F.3d 180 (3d Cir. 2010) .................................................................................23
Printz v. United States,521 U.S. 898 (1997) .............................................................................................17
United States v. Aguilar,
849 F.2d 92 (3d Cir. 1988) ...................................................................................25
United States v. Bond,
581 F.3d 128 (3d Cir. 2009) .......................................................................... 10, 28
United States v. Comstock,
130 S. Ct. 1949 (2010) .........................................................................................18
United States v. Ferreira,
275 F.3d 1020 (11th Cir. 2001) ..................................................................... 12, 13
United States v. Lian,
905 F. Supp. 160 (S.D.N.Y. 1995) .......................................................................13
United States v. Lopez,
514 U.S. 549 (1995) .................................................................... 17, 19, 20, 26, 28
United States v. Lue,134 F.3d 79 (2d Cir. 1998) ...................................................................... 12, 13, 14
United States v. Mitchell,
No. 094718,
2011 WL 3086952 (3d Cir. July 25, 2011). .........................................................24
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United States v. Morrison,
529 U.S. 598 (2000) .............................................................................................19
United States v. Salerno,
481 U.S. 739 (1987) .............................................................................................24
United States v. Soberon,
929 F.2d 935 (3d Cir. 1991) .................................................................................24
United States v. Stearn,
597 F.3d 540 (3d Cir. 2010) .................................................................................23
Statutes
18 U.S.C. 1203 ......................................................................................................13
18 U.S.C. 229 ............................................................................. 1, 3, 15, 22, 23, 25
18 U.S.C. 2332b(g) ...............................................................................................28
18 U.S.C. 3142(f)(1) .............................................................................................28
18 U.S.C. 3143(b)(2).............................................................................................28
Other Authorities
Bleach, Pine-Sol thrown in fight at Baltimore Co. Walmart,Baltimore Sun, Oct. 8, 2011,
available athttp://articles.baltimoresun.com/
2011-10-08/news/bs-md-co-bleach-assault-20111008_1_
hazardous-materials-pine-sol-shopping-center. .....................................................6
Brief for Intl Coalition for Copyright Prot.,
Golan v. Holder, No. 10-545 (2011) ....................................................................10
Brief for The CATO Institute, et al.,
United States v. Bond, No. 08-2677 (3rd Cir. 2011) ............................................10
Brief for the United States,
Golan v. Holder, No. 10-545 (2011) ....................................................................10
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v
James Wilson,
Speech to the Pennsylvania Convention (Nov. 24, 1787),
available athttp://teachingamericanhistory.org/
library/index.asp?document=1714 .......................................................................21
Laurence H. Tribe,Taking Text and Structure Seriously:
Reflections on Free-Form Method in Constitutional Interpretation,
108 Harv. L. Rev. 1221 (1995) ..................................................................... 14, 15
Oral Argument Tr.,
Bond v. United States, No. 09-1227 (2011),
available athttp://www.supremecourt.gov/
oral_arguments/argument_transcripts/09-1227.pdf .............................. 3, 6, 19, 25
Oral Argument Tr.,Golan v. Holder, No. 10-545 (2011),
available athttp://www.supremecourt.gov/
oral_arguments/argument_transcripts/10-545.pdf ...............................................11
The Federalist No. 17 (Alexander Hamilton) ................................................... 20, 21
The Federalist No. 45 (James Madison) ..................................................................19
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1
INTRODUCTION
AND SUMMARY OF ARGUMENT
The governments extended detour to advance a Commerce Clause argument
that it wisely and expressly abandoned years ago only underscores the fundamental
problems with its efforts to defend the application of the Chemical Weapons
Statute, 18 U.S.C. 229, to defendant Carol Bond as a valid exercise of the treaty
power. It cannot seriously be argued that Bonds prosecution is necessary to
ensure the Nations compliance with the Chemical Weapons Convention.
Commonly available chemicals are employed for malicious uses in hamlets across
the country. And state and local authorities deal with those incidents without
international protests being filed. The reason is simple: The Convention is
concerned with the warlike use of chemical weapons. The malicious use of
commonly available chemicals is not to be encouraged, but neither is it the stuff of
international treaties. Section 229 can certainly be construed consistent with the
core concerns of the Convention and core principles of our constitutional system.
But the governments effort to apply the statute to Bond is unrelated to the former
and incompatible with the latter.
The governments treaty power argument depends on a reading ofMissouri
v. Holland, 252 U.S. 416 (1920), that cannot be squared with the Courts actual
holding and reasoning or the fundamental precepts of our constitutional
government. The Supreme Court in this very case underscored the important
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liberty-securing function of the Tenth Amendment and our constitutional system of
federalism. See Bond v. United States, 131 S. Ct. 2355, 2366 (2011). There is no
reason to think that those fundamental aspects of the Constitution alone can be
overridden whenever the Senate, the President, and a foreign government agree.
Indeed, Hollandwas prescient in requiring a careful balancing of the federal and
state interests. The sheer number and scope of modern treaties mean that the
governments argument is a recipe for plenary federal power. If the statute cannot
be construed to avoid grave constitutional doubts, then it surely cannot survive a
faithful reading ofHolland.
Nor can the Commerce Clause save the governments interpretation. The
Commerce Clause is a complete misfit when it comes to Section 229. The
government was wise to abandon that argument and should be held to that
conscious strategic choice. Section 229 is part of the Chemical Weapons
Convention Implementation Act of 1998. If properly construed, it does indeed
implement the Convention; but any way you look at Section 229, it has nothing to
do with commerce. When the governments Supreme Court advocate attempted to
liken Section 229 to the provision upheld in Gonzales v. Raich, 545 U.S. 1 (2005),
it drew ridicule from the Justices, including one who voted with the majority in
Raich. See Oral Argument Tr., Bond v. United States, No. 09-1227 (2011),
available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/
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09-1227.pdf. Section 229 is not an effort to drive useful chemicals from the
interstate market or to regulate trade in chemicals. It has no more to do with the
regulation of commerce than did the Gun-Free Schools Act. The statute cannot be
constitutionally applied to Bond. This Court should either accept Bonds saving
construction or hold the statute unconstitutional as applied.
ARGUMENT
I. Interpreting The Chemical Weapons Statute As Applying To Ms. BondsConduct Is Neither Necessary Nor A Proper Means To Carry Out The
Federal Governments Treaty Obligations.
The government waits until page 39 of its supplemental brief to address the
central issue in this case whether the Chemical Weapons Statute, 18 U.S.C.
229, if interpreted to apply to Bond, exceeds Congresss treaty-implementing
authority and invades the powers reserved to the States by the Tenth Amendment.
The government is so reluctant to explain how this application of the statute to a
domestic dispute is necessary or proper to implementing international treaty
obligations that it spends page after page articulating an alternate theory it (wisely)
abandoned in the district court years ago. When it finally gets around to
addressing the central issue, the governments brief focuses largely on an irrelevant
abstraction namely, whether Congress has authority to pass federal legislation
that in general implements the United States treaty obligations under the Chemical
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Weapons Convention. U.S. Supp. Br. 3945.* Of course it does. But that has
never been in dispute, and so the governments argument misses the point. It is not
the mere existence of a statute implementing the Chemical Weapons Convention,
but the unprecedented scope of Section 229, as interpreted by the government and
as applied to Bond, that raises grave constitutional concerns. See Bond Supp. Br.
1621; see also Bond Br. 912.
As described in Bonds earlier submissions and below, the Court should
reject the governments interpretation and construe Section 229 to avoid these
constitutional concerns. See Bond Supp. Br. 3246; Bond Br. 2933.
Alternatively, if the statute cannot be construed to avoid constitutional doubt, the
Court should hold that, as applied to Bond in the circumstances of this case,
Section 229 is unconstitutional. See Bond Supp. Br. 4751; Bond Br. 1619.
A. The Governments Supplemental Brief Does Not Address TheCentral Disputed Issues In This Case.
No one disputes that Congress has a substantial interest in ensuring our
Nations compliance with its obligations under the Chemical Weapons
Convention. Nor does anyone dispute that a treaty restricting chemical weapons is
* App. refers to the appendix previously filed in the original appeal before thisCourt. Sen.App. refers to the appendix of sealed sentencing documents filed in
the original appeal. R. refers to the district court record. U.S. Br. refers to the
governments brief filed with this Court on November 13, 2008. U.S. Supp. Br.
refers to the governments supplemental brief filed on September 16, 2011. Bond
Br. refers to Ms. Bonds brief filed with the Court on September 8, 2008. Bond
Supp. Br. refers to Ms. Bonds supplemental brief filed on September 16, 2011.
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a proper subject[] of negotiations between our government and other nations.
U.S. Supp. Br. 42 (quotingAsakura v. City of Seattle, 265 U.S. 332, 341 (1924)).
As the government correctly notes, the United States has long been a signatory to
international agreements that outlaw the production, use, and stockpiling of
weapons capable of inflicting disproportionate or unnecessary suffering during
peace or war. U.S. Supp. Br. 4142 (listing treaties). As the government also
notes, the Convention, like other similar international agreements, has the broad
objective of seeking to eradicate the use of certain types of weapons. Id. at 44
(emphasis added); see also id. at 43 (Convention has broad objective to exclude
completely the possibility of the use of chemical weapons) (emphasis added).
But while international conventions addressing chemical weapons have long been
a staple of international negotiations, Section 229 as interpreted by the government
and as applied to Bond is a complete novelty.
Indeed, the history and objectives of these related treaties only underscore
the merits of Bonds position. While Nations have long worked to outlaw,
eradicate, or exclude completely dangerous chemical weapons (such as
mustard gas), they have never sought to eradicate commercially useful chemicals
that have the capacity to be used maliciously by ordinary citizens in domestic
disputes and other confrontations. Governments are not indifferent to such
malicious uses, but it is the stuff of local criminal law enforcement, not the stuff of
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international treaties. Vinegar remains well-stocked in our neighborhood grocery
stores not just here, but in other signatory states, even if in the wrong hands (as
Justice Alito has noted) it might pose a mortal threat to innocent goldfish. See Oral
Argument Tr. 29:1531:20,Bond v. United States, No. 09-1227. Bleach and Pine-
Sol also remain well-stocked and despite their potential for malicious use, which
was realized in a recent incident at a suburban Maryland Walmart that apparently
arose out of a domestic dispute. See Bleach, Pine-Sol thrown in fight at Baltimore
Co. Walmart, Baltimore Sun, Oct. 8, 2011, available athttp://articles.baltimoresun.
com/2011-10-08/news/bs-md-co-bleach-assault-20111008_1_hazardous-materials-
pine-sol-shopping-center. We do not mean to trivialize that incident the store
had to be evacuated and individuals taken to the hospital. But this was not an
international incident. Local charges for assault, theft, and malicious destruction
of property have been filed. See id. But no protests from our treaty partners have
been lodged and we sincerely hope that federal prosecutors are not waiting in the
wings. It simply cannot be the case that every grocery store in the country is a
veritable stockpile of chemical weapons just waiting to be unleashed whenever
used maliciously, rather than as directed on the label.
Simply put, local domestic disputes over marital infidelities that happen to
involve chemicals are beyond the scope of what the treaties were designed to
address. To borrow the governments words, these purely local issues do not give
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rise to the types of proliferation concerns that are a matter of grave concern to
the international community. U.S. Supp. Br. 41.
The governments supplemental brief fails to address this central problem
with this prosecution and the governments interpretation of Section 229 more
broadly. The government does not explain how interpreting Section 229 as
applying to Bonds conduct is required to satisfy our Nations treaty obligations.
See Bond Supp. Br. 2829. It offers no explanation why Bonds conduct has any
connection to the type of conduct that signatory states might engage in, which the
government admits is the focus of the Convention. See U.S. Supp. Br. 29, 44. It
does not explain why this Court should take any course other than avoiding serious
constitutional concerns by interpreting the statute as not extending to Bonds
conduct, and instead limiting it to actions that fall within the Conventions core
concerns. See Bond Supp. Br. 3334, 3846; see also Bond Br. 1316. And it
provides no affirmative argument why the Nations obligations under the
Convention must be enforced through sweeping federal legislation as opposed to
relying on state law that punishes assaults involving chemicals. See Medellin v.
Texas, 552 U.S. 491 (2008); see also App. 71 (Convention Art. VII) (requiring
each signatory state to adopt measures in accordance with its constitutional
processes).
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B. This Case Is Not Controlled By Missouri v. Holland.Instead of addressing Bonds central arguments, the government predictably
relies on dictum from Missouri v. Holland and several inapposite out-of-circuit
cases. See U.S. Supp. Br. 45, 4950, 5253. The government appears to read
Missouri v. Hollandas standing for the proposition that, when implementing an
international treaty, nothing is off-limits to the federal government as long as the
federal statute largely tracks the treatys language. U.S. Supp. Br. 45. That nearly
limitless view of the federal governments treaty power is neither correct nor
consistent with foundational principles of constitutional law. Indeed, it does not
even appear to be consistent with the position recently articulated by the Solicitor
General.
First, as Bond has explained in detail, Missouri v. Holland is readily
distinguished. See Bond Supp. Br. 2132; Bond Br. 2022. Most notably, in
Holland, Missouri raised a broad facial challenge to the statute implementing the
Migratory Bird Treaty between the United States and Great Britain, arguing
essentially that the statute was void in all of its applications as an unconstitutional
interference with rights reserved to the States. Holland, 252 U.S. at 431. Unlike
Bond here, Missouri did not argue that its application to certain birds or in certain
situations was problematic. Nor did there appear to be any argument that, as
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interpreted, the federal statute exceeded the scope of what was necessary to satisfy
the Nations treaty obligations.
The result in Holland presumably would have been very different if the
federal government had interpreted the statute not only to apply to migratory birds
traveling between the United States and Canada, but also to resident, non-
migratory birds that never leave Missouri. If Missouri in those circumstances had
pressed an as-applied challenge, the Court would have faced very different issues
in balancing the States interests against the national interest. Instead, however,
because Missouri raised a sweeping facial challenge, the Court concluded that a
national interest of very nearly the first magnitude was involved because
migratory birds are only transitorily within the State and, therefore, their
protection could occur only through national action in concert with Great
Britain and Canada. Id. at 435. It is in this context that the Court noted that, when
matters requiring national action are involved, the body of private relations
that ordinarily fall within a States purview may be affected by a treaty. Id. at
43334 (treaty-implementing authority extends to matters of the sharpest
exigency for the national well being).
As explained in Bonds supplemental brief, any effort to read into Holland
the simplistic principle that Congresss power to implement treaties is subject to no
limit other than affirmative restrictions on governmental power like the First
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when the Justice expressed skepticism about reliance on the treaty power. As
Justice Scalia put it:
It seems to me Congress either had the power to do this
under the Copyright Clause or it didnt. I dont think that
powers that Congress does not have under the
Constitution can be acquired by simply obtaining the
agreement of the Senate, the President and Zimbabwe. I
do not think a treaty can expand the powers of the federal
government. I mean, this is either okay under the
Copyright Clause or it isnt.
Oral Argument Tr. 31:2132:04 (Scalia, J.), Golan v. Holder, No. 10-545 (2011),
available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/
10-545.pdf. General Verrilli responded: We completely agree[] with that, Justice
Scalia. Id. at 32:0932:10. Justice Scalia and the Solicitor General have this
point right. Hollandshould not be read to give the federal government plenary
power on any of the virtually limitless topics covered by modern treaties. See
Bond Supp. Br. 25.
Second, the out-of-circuit cases cited by the government are also readily
distinguished. In each case, the courts addressedfacial challenges seeking to strike
down treaty-implementing statutes as invalid under the Tenth Amendment. There
is no indication that the defendant in any of the cases raised a narrow, as-applied
challenge, or urged the Court to interpret the applicable statute away from
constitutional doubt. Equally important, those cases involved distinct statutes that
featured the kind of limiting language that Section 229 plainly lacks.
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In United States v. Lue, 134 F.3d 79 (2d Cir. 1998), for example, the Second
Circuit concluded that the Hostage Takings Act is an appropriate exercise of
Congresss authority to implement the International Convention Against the
Taking of Hostages, and rejected the argument that the statute exceeded
Congresss authority because it did not deal narrowly with international
terrorism. Id. at 84. The Second Circuit did not rest its decision on an extreme
reading ofHolland that would grant the federal government plenary power over
any subject touched by a treaty. Instead, the court recognized that Holland
provided support for the notion that a legislative enactment effectuating a treaty
will not pass muster under the Tenth Amendment unless such an enactment
addresses a uniquely national or international matter. Id. at 85. But the Second
Circuit concluded that it did not have to decide the question because there was a
sufficient national (indeed international) interest in protecting foreign nationals
on local soil. Id. at 83, 85. Similarly, in United States v. Ferreira, 275 F.3d 1020
(11th Cir. 2001), the Eleventh Circuit concluded that the same statute was an
appropriate exercise of Congresss treaty-implementing power because
kidnapping involving foreign nationals has serious international ramifications,
which are Congresss unique responsibilities. Id. at 1027.
The government contends that Lue and Ferreira rejected arguments that
were nearly identical to the argument raised by Bond in this case. U.S. Supp. Br.
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51, 52. But that is simply not true. The arguments are not identical, but more to
the point, neither are the statutes. The Hostage Takings Act, at issue in both Lue
and Ferreira, includes a critical jurisdictional element that eliminates the
possibility that it could be read to extend to every domestic kidnapping or false
arrest case specifically, either the victim or the hostage taker had to be a foreign
national for the kidnapping to fall within the statutes ambit. See 18 U.S.C.
1203; United States v. Lian, 905 F. Supp. 160, 166 (S.D.N.Y. 1995) (discussing
this jurisdictional limit); see also Bond Br. 2324. Indeed, in both cases, the
defendants raised an equal protection challenge, arguing that the statute
impermissibly discriminated on the basis of alienage. See Ferreira, 275 F.3d at
1025; Lue, 134 F.3d at 8588. Both courts rejected that challenge precisely
because the federal government has national interests when dealing with aliens
that are different from those of the individual states, and has primary authority
to regulate immigration and foreign affairs generally. Lue, 134 F.3d at 86.
Section 229 is problematic precisely because, as interpreted by the
government, it does not contain any analogous requirement that limits the statute to
applications with a distinct nexus to the relevant treaty or even the federal
governments distinct interests more broadly. And Bonds constitutional
avoidance argument is compelling because it construes the statute in a way that
would confine it to cases with a distinct nexus to a federal treaty, rather than
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criminalizing every malicious use of widely available chemicals. The outcome of
the cases on which the government relies would presumably have been much
different if the Hostage Takings Act did not include that limiting language and the
government sought to apply it to purely local kidnappings involving only
American citizens. See Bond Br. 2324. If, for example, a state resident were to
lock her husbands paramour in a closet and refuse to let her rival out until her
husband renounced the affair, the woman would undoubtedly violate multiple state
laws, including laws against false arrest and kidnapping. But it would be fanciful
to suggest that the International Convention Against the Taking of Hostages
authorized Congress to federalize that crime. The Constitutions structural
guarantees, including the Tenth Amendment, must impose some meaningful limits
on federal authority. And nothing inLue, Ferreira, or any of the other cases cited
by the government is to the contrary.
Indeed, in Lue, the Second Circuit relied on a law review article that
specifically noted that the Constitution imposes structural limits on Congresss
treaty-implementing authority. See 134 F.3d at 83 (citing Laurence H. Tribe,
Taking Text and Structure Seriously: Reflections on Free-Form Method in
Constitutional Interpretation, 108 Harv. L. Rev. 1221, 1261 n.133 (1995)). In the
very footnote thatLue cites, the article explains that, although inHollandthe Tenth
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Amendment did not prohibit[] the treaty in question in that case, the Supreme
Court has long recognized the structural limits on the treaty power:
The treaty power . . . is in terms unlimited except by
those restraints which are found in that instrument
against the action of the government or of its
departments, and those arising from the nature of the
government itself and of that of the States. It would not
be contended that it extends so far as to authorize what
the Constitution forbids, or a change in the character of
the government or in that of one of the States, or a
cession of any portion of the territory of the latter,
without its consent.
Tribe, supra, 108 Harv. L. Rev. at 1261 n.133 (quoting De Geofroy v. Riggs, 133
U.S. 258, 267 (1890)).
Third, contrary to the governments assertions, Section 229s language does
not track the language of the Chemical Weapons Convention in all material
respects. U.S. Supp. Br. 47. As Bond has explained, the statute sweeps more
broadly than the Convention because it renders it unlawful for any person to
receive, . . . own, possess, . . . or threaten to use any chemical weapon. 18
U.S.C. 229; compare App. 70. These differences are material because Bonds
indictment included the prohibition on possession and Bond objected to the
indictment on constitutional grounds. See App. 78; see also Bond Supp. Br. 47
48. Moreover, the Convention itself simply directed signatory nations to prohibit
conduct that would be prohibited if undertaken by a signatory nation, and to do so
consistent with their respective systems of government. See Bond Supp. Br. 45,
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31, 4041. Not one word in the Convention directs them to prohibit conduct like
Bonds, let alone to do so in a manner that disregards our Constitutions division of
what is national and what is local. See App. 71 (Convention, Art. VII) (requiring
each signatory state to implement its treaty obligations in accordance with its
constitutional processes).
Fourth, the governments position is inconsistent with Supreme Court
precedent and appropriate understandings of the Tenth Amendment. The
government takes the position that, although Congress cannot pass treaty-
implementing legislation that contravenes an express prohibition in the
Constitution, Congress is free to ignore the Constitutions structural limits on
federal power. U.S. Supp. Br. 12. But that position is directly in tension with the
Supreme Courts admonition that the structural principles embodied in the Tenth
Amendment impose affirmative constraints on the federal government and do so
for the same basic reason as the other constitutional limits even the government
acknowledges viz., to protect individual liberty. Bond, 131 S. Ct. at 2366; see
also U.S. Supp. Br. 46 n.12 (acknowledging that Congress cannot pass treaty-
implementing legislation that violates an express constitutional prohibition). As
the Supreme Court has explained, the principles of limited national powers and
state sovereignty are intertwined and an [i]mpermissible interference with state
sovereignty is not within the enumerated powers of the National Government.
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Id.; see also New York v. United States, 505 U.S. 144, 156 (1992) (Congress
exercises its conferred powers subject to the limitations contained in the
Constitution. Thus, for example . . . [t]he Tenth Amendment . . . restrains the
power of Congress . . . .).
Accordingly, although the Necessary and Proper Clause grants Congress
authority to enact treaty-implementing legislation, it is well established that
legislation that violates fundamental constitutional principles and is inconsistent
with the letter and spirit of the Constitution can never be a necessary and proper
means of executing Congresss enumerated powers. McCulloch v. Maryland, 17
U.S. 316, 421 (1819); see also Alden v. Maine, 527 U.S. 706, 73334 (1999);
Printz v. United States, 521 U.S. 898, 92324 (1997). Certainly, nothing in
Missouri v. Hollandis remotely to the contrary. See Bond Supp. Br. 2125; Bond
Br. 2021. Indeed, it is a foundational principle, deeply ingrained within our
constitutional history, that the Constitution created a federal government of limited
powers, while reserving a generalized police power to the States. See United
States v. Lopez, 514 U.S. 549, 566 (1995) (Congresss authority is limited to those
powers enumerated in the Constitution);Mayor of New Orleans v. United States,
35 U.S. 662, 736 (1836) (Congresss limited powers cannot be enlarged under
the treaty-making power). This basic federalism principle directly informs which
powers may be properly exercised by the federal government under the Necessary
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and Proper Clause. See United States v. Comstock, 130 S. Ct. 1949, 1967 (2010)
(Kennedy, J., concurring). Congress cannot, under the pretext of executing
delegated power, pass laws for the accomplishment of objects not intrusted to the
federal government. Linder v. United States, 268 U.S. 5, 17 (1925).
C. The Chemical Weapons Statute, As Applied To Bond, RaisesConstitutional Concerns Of The First Order.
The government ends its supplemental brief with the astonishing assertion
that its interpretation of Section 229 does not restrike[] the balance between the
federal government and the States because Section 229 neither preempts state law
nor precludes state prosecution of the same activity. U.S. Supp. Br. 54. In the
governments view, there is no intrusion on state prerogatives because Section
229 does not require or compel state officials to take any particular action. Id. at
55.
These assertions only confirm how much the governments position is at
odds with our Constitutional scheme. Contrary to the necessary implications of the
governments argument, the Constitution does not impose a one-way-ratchet
towards harsher criminal sentences and increased government intrusions on
individual liberty with the criminal law of the strictest sovereign always
dominating. If it did, that observation alone could have dispensed with the
challenge inRaich, andLopez andMorrison would have been decided differently.
See Gonzales v. Raich, 545 U.S. 1 (2005); United States v. Lopez, 514 U.S. 549,
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566 (1995); United States v. Morrison, 529 U.S. 598 (2000). Commandeering
state officials and interfering with state prerogatives are indeed violations of the
Constitution, but they are not the only way for the federal government to exceed its
powers and threaten both federalism and individual liberty. Federal intrusion into
areas that lie beyond the federal governments enumerated powers and are the
exclusive province of governments closer and more responsive to the people is a
critical aspect of the Supreme Courts federalism jurisprudence. See, e.g.,Jones v.
United States, 529 U.S. 848, 857-58 (2000). The Constitution requires a
distinction between what is truly national and what is truly local, with the latter
left to governments more responsive to the people. Morrison, 529 U.S. at 61718.
Indeed, the whole point of federalism is that it inheres to the individual and his
or her right to liberty. Oral Argument Tr. 20:912 (Kennedy, J.),Bond v. United
States, No. 09-1227.
Although federal law trumps state law under the Constitutions Supremacy
Clause, the federal powers are few and defined, while the powers reserved to
the States . . . extend to all the objects which, in the ordinary course of affairs,
concern the lives, liberties, and properties of the people. The Federalist No. 45
(James Madison). As the Supreme Court has held, the Constitution created a
Federal Government of limited powers, while reserving a generalized police power
to the States. Morrison, 529 U.S. at 618 n.8 (quotingNew York, 505 U.S. at 155).
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Accordingly, the scope of the federal governments authority must be considered
in the light of our dual system of government, and may not be extended so as to . . .
obliterate the distinction between what is national and what is local and create a
completely centralized government. Lopez, 514 U.S. at 557 (quoting NLRB v.
Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937)); see also id. at 566 (the
Constitution withholds from Congress a plenary police power). Indeed, because
the States possess primary authority for defining and enforcing the criminal law,
Brecht v. Abrahamson, 507 U.S. 619, 635 (1993), care must be taken to avoid
rendering ordinary state crimes a concurrent violation of federal law. Bray v.
Alexandria Womens Health Clinic, 506 U.S. 263, 287 (1993) (Kennedy, J.,
concurring). The treaty power cannot be construed to grant the federal government
a general police power. Lopez, 514 U.S. at 567.
Moreover, under our Constitution, determining what punishment is the
appropriate response to purely local crimes is entrusted to the exclusive authority
of state officials. In particular, the determination of what local crimes should be
subject to the death penalty is a core sovereign responsibility of the States. As the
Framers recognized, the administration of private justice between citizens of the
same State . . . can never be desirable cares of a general jurisdiction. The
Federalist No. 17 (Alexander Hamilton); see also James Wilson, Speech to the
Pennsylvania Convention (Nov. 24, 1787), available at http://teachingamerican
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history.org/library/index.asp?document=1714 (Whatever object of government is
confined in its operation and effect, within the bounds of a particular State, shall be
considered as belonging to the government of that State.). And the decision to
criminalize an area of law as a matter of federal law inevitably interferes with local
prerogatives because a federal sentence necessarily makes a negative judgment on
alternative sentences that local authorities might otherwise deem appropriate,
especially when it comes to the death penalty. Federalizing purely local crimes
thus directly interferes with the one transcendent advantage belonging to the
province of the State governments the ordinary administration of criminal and
civil justice. The Federalist No. 17 (Hamilton).; see alsoJones, 529 U.S. at 857
58.
The federal governments interpretation of Section 229 runs afoul of these
basic principles. It applies the heavy artillery of federal prosecution to all manner
of local crimes involving the malicious use of commonly available chemicals. If
that malicious use results in death, it takes the decision concerning the
appropriateness of the death penalty away from the state legislature and local
prosecutors and moves it to the U.S. Attorneys office and ultimately to
Washington. See Bond. Supp. Br. 78; see also 18 U.S.C. 229A(a)(2). All of
that would make sense in the case of crimes implicating the core concern of the
Convention. But the government blunderbuss interpretation of the statute fails to
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distinguish between local crimes and violations of the law of Nations. This Court
should accept Bonds interpretation of the statute because it avoids grave
constitutional questions and distinguishes between what is truly national and what
is purely local. And if the Court concludes that the government has correctly
interpreted the statute, this Court should strike it down as applied in excess of the
federal governments power and in derogation of our constitutional system.
II. Interpreting The Chemical Weapons Statute As Applying To Ms. BondsConduct Is Not Justified Under The Commerce Clause.
Underscoring the weakness of its position on the treaty power argument, the
government seeks to resurrect an argument that it previously expressly disavowed
namely, that as applied to Bond 18 U.S.C. 229 is a proper exercise of
Congresss authority under the Commerce Clause. This argument is waived and,
in any event, lacks all merit. The Commerce Clause and this statute are a complete
misfit. Section 229 was self-evidently enacted to implement the Convention, and
if properly construed does so without raising grave constitutional difficulties. But
Section 229 was not and is not Commerce Clause legislation and cannot be
defended on that ground. Congress does not want to snuff out the market in
bleach, Pine-sol, or vinegar, and prosecuting the malicious use of those chemicals
has nothing to do with the regulation of commerce. The government was right the
first time in defending this statute on the only ground that motivated Congress.
And properly construed the statute is valid on that ground, just not as applied. But
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the governments late-breaking effort to defend a provision of the Chemical
Weapons Convention Implementation Act of 1998 as valid Commerce Clause
legislation is a futile effort to pound a square peg into a round hole.
A. The Governments Previously Disavowed Commerce ClauseArgument Is Waived And Forfeited.
The government acknowledges that, in earlier briefing before this Court, it
relied only on the Treaty Power to support the constitutionality of the Chemical
Weapons Statute. U.S. Br. 21 n.5. In fact, the government affirmatively and
expressly disclaimed any reliance on the Commerce Clause. R. 30 at 7. In
response to Bonds motion to dismiss, the government unequivocally stated that 18
U.S.C. 229 was notenacted under the interstate commerce authority . . . . Id.
(emphasis added). That concession should be binding on the government and
subject to the ordinary rule that an argument expressly disavowed in the district
court is waived and cannot be raised on appeal. See United States v. Stearn, 597
F.3d 540, 551 n.11 (3d Cir. 2010); see also Pareja v. United States, 615 F.3d 180,
186 n.3 (3d Cir. 2010).
The government contends that ordinary principles of waiver and forfeiture
do not apply because it is incumbent on this Court to consider any basis for
affirming the validity of the statute. U.S. Supp. Br. 37. It is not at all clear that
this principle actually permits the government to resurrect an affirmatively
disavowed theory, but any more forgiving standard for government forfeiture
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applies only when a party advances a facial challenge to a statute. In such
circumstances, because the party is seeking to void the statute in its entirety, the
burden is on the challenger of the law generally the plaintiff to establish
that no set of circumstances exists under which the Act would be valid. United
States v. Salerno, 481 U.S. 739, 745 (1987); United States v. Mitchell, No. 09
4718, 2011 WL 3086952, at *16 (3d Cir. July 25, 2011). The rule does not apply
where, as here, a party is challenging the constitutionality of a statute as appliedto
her own conduct. In the as-applied context, the relief is limited to the party before
the Court, for the issue is not whether the statute as a whole is invalid but whether
the statute is being unconstitutionally applied. In those circumstances, the Court
should consider whether the particular application of the statute has been justified,
and has no obligation to consider disavowed arguments.
The government also contends that prevailing parties are entitled to raise
alternative arguments because the Court may affirm on any ground supported by
the record. U.S. Supp. Br. 38. But that rule does not excuse forfeiture let alone
apply when the alternative grounds have been expressly disavowed and were not
raised before the district court. See, e.g., United States v. Soberon, 929 F.2d 935,
940 (3d Cir. 1991) (court cannot . . . base [its] decision on grounds that were not
raised before the district court); see also Mark v. Borough of Hatboro, 51 F.3d
1137, 1139 n.1 (3d Cir. 1995); United States v. Aguilar, 849 F.2d 92, 99-100 (3d
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Cir. 1988). The government relies onIn re Teleglobe Communications Corp., 493
F.3d 345 (3d Cir. 2007), but that decision does not apply because it does not
involve an issue that was raised for the first time on appeal.
B. The Governments Previously Disavowed Commerce ClauseArgument Is Meritless.
Even if this Court were to consider the governments late-breaking
Commerce Clause argument, it should conclude that the argument lacks merit.
The government was right to focus on the treaty power because the Commerce
Clause is a complete misfit with 18 U.S.C. 229.
At the recent Supreme Court oral argument in this case, Justices Alito and
Scalia both derided the suggestion that the government could defend the statute on
the basis of the Commerce Clause. Justice Alito stated that, given the broad nature
of the Chemical Weapons Statute, the governments reading and its reliance on the
Commerce Clause would produce absurd results, such as suggesting that the
pouring of vinegar into a goldfish bowl to kill a former friends fish would be a
federal crime. Oral Argument Tr. 29:1529:20, Bond v. United States, No. 09-
1277 (Alito, J.); see also id. at 30:430:9. When the government suggested that
this is an area, like the medical marijuana instance in Raich, where effective
control of the interstate market requires control of an intrastate market, Justice
Scalia, who joined the majority in Raich,was incredulous. As he colorfully and
sarcastically asked: Youre trying to drive vinegar out of the interstate market?
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Do the people know youre trying to do this? Can you really argue that this statute
is designed to drive vinegar out of the interstate market? Id. at 31:1531:19
(Scalia, J.).
In fairness to the government, it denied any intent to drive vinegar out of the
interstate or intrastate market. But that denial just underscores the source of the
Justices incredulity. This statute self-evidently has nothing to do with interstate
commerce. It is nothing like Raich where the government wanted to eliminate a
product from the interstate market and thus had the power to eliminate it from the
intrastate market to perfect the federal regulatory regime. See id. at 30:2324
(noting that Raich involved on commodity not potentially thousands and
thousands of chemicals). But while this case is nothing like Raich, it is very
much like Lopez if Section 229 is viewed as Commerce Clause legislation. The
fundamental problem with the statute in Lopez was that regulating the possession
of firearms within 1,000 feet of a school is not a rational way to regulate commerce
in firearms. Regulating the price of firearms or their possession within 1,000 feet
of a federally licensed firearm dealer might be a rational way to regulate commerce
in firearms (putting aside, of course, any Second Amendment issues). But there
was a fundamental disconnect between regulating firearms near schools and
regulating firearms as commerce. In light of that disconnect, the Court knew
something other than the regulation of commerce was afoot.
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Here, there is no doubt but that something other than the regulation of
commerce was afoot in Congresss enactment of Section 229. And there is no
doubt what it was: Congress was clearly trying to implement the Chemical
Weapons Convention, and was not trying to drive vinegar from the interstate
market or even regulate commerce in the thousands of chemicals potentially
converted into chemical weapons by the governments reading. There is no
indication in the Chemical Weapons statute that Congress was invoking its
Commerce Clause authority to criminalize certain uses of chemicals. App. 169
(Congress does not purport to enact the statute pursuant to the Commerce
Clause). And there is every indication that Congress was trying to implement the
Convention. That is why Congress gave the Act that created Section 229 the short
title of the Chemical Weapons Convention Implementation Act of 1998.
Nonetheless, the government weakly asserts that the purpose of the
Chemical Weapons Statute is to promote free trade and the exchange of
technology in chemicals. U.S. Supp. Br. 28; see also id. at 29 (Congress was
advancing the Conventions broad objective of fostering international trade in
chemicals). But that only emphasizes why Section 229 must be interpreted with
more care and subtlety than the government has mustered. Unlike nuclear
materials that are always subject to tight control, the Convention seeks to
encourage free and open commerce in chemicals while prohibiting chemical
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weapons. Any view of Section 229 that would lightly convert chemicals into
chemical weapons just based on their malicious use, as opposed to warlike use, is
completely antithetical to any interest in further commerce in useful chemicals. As
Bond has explained, the statute is intended to reinforce the notion that the
statutes intent is to reach serious conduct that would violate the [Chemical
Weapons] Convention if undertaken by a signatory state. Bond Supp. Br. 40.
And the statute focuses on war-like uses of chemicals by signatory states and
terrorists. See 18 U.S.C. 2332b(g)(5)(B)(i) (describing violation of Section 229
as a federal crime of terrorism); see also id. 3143(b)(2); id. 3142(f)(1)(A); id.
2332b(g)(5)(B)(i).
Section 229, unlike many other such criminal statutes, does not include a
jurisdictional element. See Bond, 581 F.3d at 134. Accordingly, to obtain a
conviction the government need not prove the chemical moved in interstate
commerce or substantially affects commerce. The absence of such a provision is
not only a strike against it as valid Commerce Clause legislation, see Lopez, 514
U.S. at 561, it is revealing. It confirms that Congress did not legislate with the
assumption that the federal government was overlaying a federal commercial
regulation on top of the States normal police powers, in which case a
jurisdictional element would be expected. Rather, Congress thought it was
regulating narrowly to reach items of self-evident national concern like stockpiles
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of chemical weapons or the use of Sarin gas by a terrorist group indiscriminately
against civilians. Such matters of obvious national and international concern
effectively serve as their own jurisdictional elements. See Bond Supp. Br. 43.
Accordingly, it is not surprising that, as the government points out, federal statutes
addressing biological and nuclear weapons and plastic explosives do not have a
commerce-based jurisdictional element. Those statutes, no less than the Chemical
Weapons Convention Implementation Act of 1998, do not have commerce-based
jurisdictional elements because they are not Commerce Clause legislation.
All of this highlights the real vice of the governments interpretation of
Section 229. Under the governments view, the statute is not limited to a narrow
band of closely regulated items of obvious national and international concern.
Instead, it presumptively covers a whole host of widely available chemicals
commerce in which the government generally encourages. Rather than regulate
those items in commerce, the government would allow any malicious use of those
items no matter how local or non-commercial to convert widely available items
into chemical weapons. That regime has nothing to do with the regulation of
commerce and very little to do with the proper implementation of the Chemical
Weapons Convention. There is a sensible alternative, which Bond has proposed,
that avoids constitutional uncertainty and allows Section 229 to implement the
Convention in a manner that is both rational and constitutional. But if that
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alternative is rejected there is nothing in the Commerce Clause that will save
Section 229 as interpreted by the government and as applied to Bond from
constitutional invalidation.
CONCLUSION
For these reasons, and for the reasons set forth in Bonds opening
supplemental brief, the Court should vacate the judgment and sentence.
Respectfully submitted,
Ashley C. Parrish
Adam M. Conrad
KING & SPALDING LLP
1700 Pennsylvania Avenue, N.W.
Washington, DC 20006
Telephone: (202) 737-0500
Facsimile: (202) 626-3737
aparrish@kslaw.com
aconrad@kslaw.com
/s/ Paul D. ClementPaul D. Clement
Counsel of Record
Conor B. Dugan
BANCROFT PLLC
1919 M Street, NW, Suite 470
Washington, DC 20036
Telephone: (202) 234-0090
Facsimile: (202) 234-2806
pclement@bancroftpllc.com
cdugan@bancroftpllc.com
Robert E. Goldman
ROBERT E. GOLDMAN LLC
P. O. Box 239
Fountainville, PA 18923
Telephone: (215) 348-2605
Facsimile: (215) 348-8046
reg@bobgoldmanlaw.com
Counsel for Defendant-Appellant
DATED: October 14, 2011
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CERTIFICATE OF LENGTH, FORMAT, AND ADMISSION
1. Per the Microsoft Word word count function, excluding tables,
certifications, and addenda, the foregoing contains 6,951 words, and therefore
complies with the limitation on length of a brief stated in Fed. R. App. P.
32(a)(7)(B);
2. The text of this electronic brief and the hard copy filed on October 14,
2011 are identical;
3. A scan and PDF conversion using Kaseya Antivirus software
demonstrated that the PDF file is a virus-free form; and
4. The below counsel is admitted to practice before this Court.
/s/ Paul D. Clement
Paul D. Clement
Counsel of Record
BANCROFT PLLC
1919 M Street, NW, Suite 470
Washington, DC 20036
Telephone: (202) 234-0090
Facsimile: (202) 234-2806
pclement@bancroftpllc.com
Counsel for Defendant-Appellant
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CERTIFICATE OF SERVICE
I certify that on this date I filed ten copies via FedEx and an electronic copy
of the foregoing using the Courts ECF system to the following:
United States Court of Appeals for the Third Circuit
Clerk of the Court
21400 U.S. Courthouse
601 Market Street
Philadelphia, PA 19106
I certify that on this date I served one copy via FedEx and an electronic copy
of the foregoing using the Courts ECF system, which will cause notice of the
filing and a copy to be issued to the following:
Paul G. Shapiro
United States Attorneys Office
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
I further certify that a .pdf file of the foregoing brief was e-mailed to the
above counsel at paul.shapiro@usdoj.gov on October 14, 2011.
This 14th day of October, 2011. /s/Paul D. Clement
Paul D. Clement
Counsel of Record
BANCROFT PLLC
1919 M Street, NW, Suite 470
Washington, DC 20036Telephone: (202) 234-0090
Facsimile: (202) 234-2806
pclement@bancroftpllc.com
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