______________________________________________________________________________

No. C15-1359-1

___________________________

In the

Supreme Court of the United States

October Term, 2015

___________________________

EMMALINE BLACK

Petitioner,

— v. —

UNITED STATES OF AMERICA,

Respondent.

___________________________

On Writ of Certiorari to the United States Court of Appeals

for the Fourteenth Circuit

______________________________________________________________________________

BRIEF FOR RESPONDENT

Attorneys for Respondent

Team Number: 17

i

QUESTIONS PRESENTED

1. Must this Court apply the Rushcamp hybrid standard in evaluating whether

Petitioner’s possession of the items found on her person at the time of her

arrest was prosecutable under 26 U.S.C. § 5845(f)(3)?

2. Can a person be convicted, substantively and constitutionally, for attempting

to demonstrate and show a complex computer code, that can be used to create

the main component of a home-made bomb, to a designated foreign terrorist

organization under 18 U.S.C. § 2339B?

ii

TABLE OF CONTENTS

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

OPINIONS BELOW ............................................................................................... viii

CONSTITUTIONAL AND STATUTORY PROVISIONS ....................................... viii

STATEMENT OF JURISDICTION ............................................................................ 1

STATEMENT OF THE CASE .................................................................................... 1

A. Statement of Facts…………………………………………………………….…..1

B. Procedural History…………………………………………………………….......4

SUMMARY OF THE ARGUMENT ............................................................................ 6

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

I. THE RUSHCAMP HYBRID STANDARD CORRECTLY APPLIES TO

INDIVIDUALS CHARGED UNDER 26 U.S.C. § 5845(f)(3) OF THE

NATIONAL FIREARMS ACT OF 1934 AND REQUIRES THIS COURT TO

AFFIRM THE LOWER COURTS’ FINDING OF PETIONER’S GUILT. ...... 21

A. This Court Should Resolve The Circuit Split And Find That The

Rushcamp Hybrid Standard Governs, Because a Purely Objective or

Purely Subjective Standard Fails To Accomplish The Goals of 26 U.S.C. §

5845(F)(3). .................................................................................................. 13

B. Applying The Rushcamp Hybrid Standard When Evaluating Petitioner’s

Chargeability Under 26 U.S.C. § 5845(F)(3), The Combination of Items in

Petitioner’s Possession at The Time of Arrest Fall Within The Scope of

The “Destructive Device” Definition Intended by Congress. ................... 18

1. If Petitioner’s Subjective Intent is Found Relevant to The Application

of The Rushcamp Hybrid Standard, The Fourteenth Circuit Court of

Appeal’s Conclusion Regarding Her Motives is Correct. ............... 200

2. The Devices’ Components Are Readily Convertible to Destructive

Devices and Petitioner Was Able to Do So. .................................... 222

C. Even if This Court Applies The Purely Objective Standard, Petitioner’s

Conviction Satisfies The Statutory Requirement Because The

Unassembled Parts Found in Her Possession at The Time of Arrest Do

iii

Not Form an Object With a Legitimate Social or Commercial Purpose.

.................................................................................................................. 244

II. A PERSON CAN BE PROSECUTED UNDER 18 U.S.C. § 2339B, WITHOUT

THEIR FIRST AMENDMENT RIGHTS JEAPORDIZED, FOR PLANNING

TO MEET AND CONFER WITH THE LEADER OF A FTO IN ORDER TO

PROVIDE COMPUTER CODE USED FOR MAKING THE ESSENTIAL

ELEMENT OF A BOMB. ............................................................................... 25

A. Making Plans to Meet the Leader of a Foreign Terrorist Organization in

Order to Explain and Provide a Dangerous Computer Code Fits Squarely

Within the Parameters of 18 U.S.C. § 2339B. .......................................... 26

1. A Computer Code that Provides the Capabilities to Create the

Essential Component of a Bomb is Considered a Weapon and

Therefore Prohibited from Production to a Foreign Terrorist

Organization. ..................................................................................... 27

2. In the Alternative, Showing and Demonstrating a Potentially

Dangerous Computer Code is Prohibited by the Material Support

Statute Because it Qualifies as Training or Expert Advice or

Assistance. ......................................................................................... 31

B. The First Amendment’s Guarantee of Freedom of Speech and Right to

Association is Not Violated by 18 U.S.C. § 2339B Because the

Government’s Interest in Stopping the Attacks of Modern Terrorist

Organizations is Great and the Statute is Narrowly Tailored to Achieve

That End. ................................................................................................... 33

1. Petitioner’s Speech that is Criminalized under 18 U.S.C. § 2339B

Passes Constitutional Muster under a Strict Scrutiny Analysis. ... 36

i. The Government Has a Compelling Interest in Thwarting

Terrorist Activities of Rogue Hackers Who Are a Part of

Designated Foreign Terrorist Organizations. .................. 37

ii. 18 U.S.C. § 2339B is Narrowly Tailored to Achieve This

End Because the Conduct Proscribed is Directed to and

Coordinated with a Foreign Terrorist Organization and the

Statute Only Prohibits Specific, Material Support. ........ 39

2. An Individual’s Freedom to Associate is not Violated by 18 U.S.C. §

2339B Because the Statute Only Restricts One’s Ability to Provide

iv

Material Support and Does Not Prohibit One’s Membership in an

FTO. ................................................................................................... 43

C. There is Sufficient Evidence to Demonstrate That Petitioner Intended to

Give Support to Dixie Millions Because She Took Substantial Steps to

Track the Coordinates of Clive Allen, Made Public Statements Supporting

His Actions, and Planned to Show Him a Dangerous Computer Code. .. 46

1. Petitioner’s Actions Constitute Attempt to Violate the Material

Support Statute Because She Intended to Provide Material Support

to DM and Took Substantial Steps Towards Accomplishing That

Goal. ................................................................................................... 47

2. Petitioner Satisfied 18 U.S.C. § 2339B’s Knowledge Requirement

Because She Knew DM Was a Designated Foreign Terrorist

Organization. ..................................................................................... 50

CONCLUSION ......................................................................................................... 51

v

TABLE OF AUTHORITIES

United States Supreme Court Cases

Brandenburg v. Ohio, 395 U.S. 444 (1969) ................................................................. 43

Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) ................................... passim

Jackson v. Virginia, 443 U.S. 307 (1979) .................................................................... 55

Mills v. Alabama, 384 U.S. 214 (1966) ........................................................................ 41

NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) .................................... 51, 54

Reno v. Aclu, 521 U.S. 844 (1997) ............................................................................... 47

Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ............................................................. 51

Sabri v. United States, 541 U.S. 600 (2004) ............................................................... 43

Scales v. Unites States, 367 U.S. 203 (1961) .............................................................. 52

Staples v. United States, 511 U.S. 600 (1994) ................................................ 18, 23, 24

Turner Broad. Sys., Inc. v. Fed. Commc’ns Comm’n, 512 U.S. 622 (1994) ............... 41

United States v. Marzook, 383 F. Supp. 2d 1056 (N.D. Ill. 2005) ............................. 52

United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803 (2000) ........................ 45, 47

United States Court of Appeals Cases

Al Haramain Islamic Foundation v. U.S. Dep’t of Treasury, 686 F.3d 965 (9th Cir.

2012) .......................................................................................................................... 45

Langel v. United States, 451 F.2d 957 (8th Cir. 1971)............................................... 20

McCoy v. Stewart, 282 F.3d 626 (9th Cir. 2002).......................................................... 44

United States v Farhane, 634 F.3d 127 (2d Cir. 2011) ........................................ 55, 57

United States v. Al Kassar, 660 F.3d 108 (2d Cir. N.Y. 2011) ................................... 37

United States v. Amawi, 695 F.3d 457 (6th Cir. 2012) ............................................... 39

United States v. Augustin, 661 F.3d 1105 (11th Cir. 2011) ........................................ 56

United States v. Berres, 777 F.3d 1083 (10th Cir. 2015) ........................................... 33

United States v. Chandia, 514 F.3d 365 (4th Cir. 2008) ............................................. 52

United States v. Dempsey, 957 F.2d 831 (11th Cir. 1992) ......................................... 28

United States v. Hamrick, 43 F.3d 877 (4th Cir. 1995) ............................................. 28

United States v. Jackman, 72 F. App'x 862 (3d Cir. 2003) ........................................ 23

United States v. Johnson, 152 F.3d 618 (7th Cir.1998) ....................................... 20, 29

United States v. Kaziu, 559 Fed. Appx. 32 (2d Cir. 2014) ......................................... 57

United States v. Langan, 263 F.3d 613 (6th Cir. 2001) ............................................. 31

United States v. Markley, 567 F.2d 523 (1st Cir. 1977)....................................... 19, 33

United States v. Mehanna, 735 F.3d 32 (1st Cir. 2013) ........................................ 56, 57

United States v. Morningstar, 456 F.2d 278 (4th Cir. 1972) ..................................... 20

United States v. Mustafa, 406 Fed. Appx. 526 (2d Cir. 2011) ................................... 39

United States v. Neal, 692 F.2d 1296 (10th Cir. 1982) .............................................. 19

vi

United States v. Oba, 448 F.2d 892 (9th Cir. 1971) ....................................... 18, 20, 26

United States v. Posnjak, 457 F.2d 1110 (2d Cir. 1972) .......................... 18, 19, 25, 32

United States v. Rushcamp, 526 F.2d 1380 (6th Cir. 1975) ...................................... 21

United States v. Saunders, 166 F.3d 907 (7th Cir.1999) ........................................... 22

United States v. Simmons, 83 F.3d 686 (4th Cir. 1996)............................................. 24

United States v. Spoerke, 568 F.3d 1236 (11th Cir. 2009) ............................. 19, 26, 27

United States v. Tankersley, 492 F.2d 962 (7th Cir. 1974) ....................................... 31

United States v. Tomkins, 782 F.3d 338 (7th Cir. 2015) ........................................... 33

United States v. Urban, 140 F.3d 229 (3d Cir. 1998) ................................................. 33

United States v. Wilson, 546 F.2d 1175 (5th Cir. 1977)............................................. 20

United States District Court Cases

Sokolow v. Palestine Liberation Organization, 60 F. Supp. 3d 509 (S.D.N.Y. 2014)

............................................................................................................................. 36, 37

United States v. Assi, 414 F. Supp. 2d 707 (E.D. Mich. 2006) ....................... 36, 52, 53

United States v. Lindh, 212 F. Supp. 2d 541 (E.D. Va. 2002) ................................... 37

United States v. Pearce, 86 F. App'x 919 (6th Cir. 2004) .......................................... 31

United States v. Warsame, 537 F. Supp. 2d 1005 (D. Minn. 2008) ............... 39, 52, 53

United States v. Worstine, 808 F.Supp. 663 (N.D. Ind. 1992) ................................... 29

Constitutional Provisions

U.S. CONST. amend. I ............................................................................................. 42, 51

Statutes

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

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

26 U.S.C. § 5845 ................................................................................................... passim

Other Authorities

142 Cong. Rec. S3352-01 S7548 (daily ed. Apr. 16, 1996) (statement of Sen. Hatch)

................................................................................................................................... 42

AEDPA, Pub. L. No. 104-132, § 302-03, 110 Stat. 1214 (1996) ................................. 34

AEDPA, Pub. L. No. 104-132, § 303, 110 Stat. 1214 (1996) ....................................... 34

Black’s Law Dictionary 1827 (10th ed. 2014) .............................................................. 36

Christopher Harress, ISIS Weapons Growing In Number, Sophistication: A Soviet,

Balkan And American Mix, But The Group Can’t Use All Of Them, INT’L

BUSINESS TIMES (Aug. 15, 2014 8:32 AM), http://www.ibtimes.com/isis-weapons-

growing-number-sophistication-soviet-balkan-american-mix-group-cant-use-all-

1659176 ..................................................................................................................... 38

vii

Counterterrorism White Paper, Counterterrorism Section, DEP’T OF JUSTICE, at 14

(June 22, 2006), available at

http://trac.syr.edu/tracreports/terrorism/169/include/terrorism.whitepaper.pdf .. 47

Counterterrorism White Paper, Counterterrorism Section, DEP’T OF JUSTICE, at 14

(June 22, 2006), available at

http://trac.syr.edu/tracreports/terrorism/169/include/terrorism.whitepaper.pdf

(describing the material support statute as “one of the cornerstones of [the Dep’t

of Justice’s] prosecution efforts) ............................................................................... 47

IRTPA, Pub. L. 108-458, § 6603, 118 Stat. 3638 (2004) ............................................. 34

Katherine E. Beyer, Note, Busting the Ghost Guns: A Technical, Statutory, and

Practical Approach to the 3-D Printed Weapon Problem, 103 KY. L.J. 433 (2014) 27

Leti Volpp, The Boston Bombers, 82 FORDHAM L. REV. 2209 (2014) ......................... 25

Lisa Ferdinando, DoD Needs to Improve Cyber Culture, CIO says, U.S. DoD,

available at http://www.defense.gov/News-Article-View/Article/626607/dod-needs-

to-improve-cyber-culture-cio-says ............................................................................ 46

Marjoire Heins, The Supreme Court and Political Speech in the 21st Century: The

Implications of Holder v. Humanitarian Law Project, 76 ALB. L. REV. 561 (2013) 44

S. REP. NO. 90-1501, pt. 47 (1968) ............................................................................... 19

Terror Hits Home: The Oklahoma City Bombing, THE FBI,

https://www.fbi.gov/about-us/history/famous-cases/oklahoma-city-bombing. ....... 34

Uniting and Strengthening America by Providing Appropriate Tools Required to

Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001, Pub. L. 107-

56, § 805, 115 Stat. 272 (2001) ................................................................................. 34

State Court Cases

Enoch v. State, 95 So. 3d 344 (Fla. Dist. Ct. App. 1st Dist. 2012) ............................. 46

viii

OPINIONS BELOW

The opinion of United State District Court for the Central District of New Tejas

is unreported and has not been reproduced in the Record. R. at 2.1 The United States

Court of Appeals for the Fourteenth Circuit’s opinion is unreported; however, it

appears in the Record at pages 2-27.

CONSTITUTIONAL AND STATUTORY PROVISIONS

This case involves the First Amendment to the United States Constitution,

U.S. CONST. amend. I., which states that “Congress shall make no law… abridging

the freedom of speech, or of the press; or the right of the people peaceably to

assemble…”

This matter also involves 26 U.S.C. § 5845(f)(3) and 18 U.S.C. §§ 2339B and

2339A. Specifically, a person is proscribed from “knowingly provid[ing] material

support or resources to a foreign terrorist organization, or attempt[ing] or

conspir[ing] to do so.” 18 U.S.C. § 2339B(a)(1). Material support includes, “training,

expert advice or assistance… weapons, lethal substances, [and] explosives.” 18 U.S.C.

§ 2339A(b)(1).

In addition, a person may not possess an unregistered destructive device,

including:

(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

1 “R.” refers to Record on Appeal.

ix

converted to, expel a projectile by the action of an explosive

or other propellant… 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.

26 U.S.C. § 5845(f).

1

STATEMENT OF JURISDICTION

Petitioner appeals the conviction entered by the United States District Court

for the Central District of New Tejas and affirmed by the United States Court of

Appeals for the Fourteenth Circuit under 26 U.S.C. § 5845(f)(3) and 18 U.S.C. §

2339B. R. at 2. The district court had original jurisdiction pursuant to 28 U.S.C. §

1331. The Fourteenth Circuit had jurisdiction over the appeal pursuant to 28 U.S.C.

§ 1291. This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1254(1),

which provides that a federal court’s decision may be reviewed “by writ of certiorari

granted upon the petition of any party… before or after rendition of judgment or

decree.”

STATEMENT OF THE CASE

A. Statement of Facts

Emmaline Borne (“Petitioner”) and Fiona Triton, applied to “Technical

Promise,” a study abroad program in Azran, in the Fall of 2001 with the help of their

physics teacher at Harrisburg High School, Adilda Ascot. R. at 2-3. The relationship

between Ascot and Petitioner grew during the process, and they met regularly after

school to learn an advanced computer program called C++. R. at 2, 4. In February,

both girls were accepted. Id. at 4. The ten-week program at the University of

Misthallery in Azran began on June 4, 2012. Id. at 4-5.

Soon thereafter, the National Security Agency (“NSA”) experienced a

detrimental data breach which caused millions of stolen documents to flood the

Darknet, an unregulated area of the internet commonly used by “hacktivist groups.”

Id. at 5. Clive Allen, a former NSA agent and University of Misthallery graduate,

2

claimed responsibility for this breach and revealed himself to be “Millions” of Dixie

Millions (“DM”), a hacktivist group. Id. at 5, 6. In December 2011, the United States

Secretary of State declared DM a foreign terrorist organization (“FTO”). R. at 5.

Websites across the internet were plagued by DM’s successful hacking and

subsequent “scandalous document dump[s].” Id. at 5-6. In March 2012, Allen

announced he was retiring in Azran, where he was granted asylum. Id. at 6. The

United States began negotiations for Allen’s arrest and extradition; however, talks

were abruptly halted when Allen gave the “Azranian government several documents

showing the NSA had recorded private communications between the Azranian

Ambassador to the UN and the Azranian Prime Minister.” Id. The other leader of

DM has yet to be identified. R. at 6.

In April 2012, Petitioner spoke with Ms. Triton’s father about a new 3D printer

he bought to develop a break-through plastic filaments formula. Id. at 7. He was

having issues with the coding on the machine, and accepted Petitioner’s offer to help

remedy the problem. Id. Petitioner asked Ascot for assistance; a conversation about

DM and their recent WOM database hack, which revealed the game developers’

illegal sale of user lists, ensued. Id. Ascot admired Allen and commended “Dixie” on

the hacker’s clever evasion of capture for so long. R. at 7. She hoped that “people

would realize all the good Dixie Millions was doing in the world.” Id.

Ascot finished the coding that weekend. R. at 8. On May 1, 2012, Petitioner

showed Mr. Triton the finished code, and took complete credit for the work. Id. at 8-

9. Two days later, Mr. Triton downloaded 3D handgun plans from the internet onto

3

a solid gold-colored “USB stick” with the hopes of combining the plastic filament

formula to create “an extremely valuable product.” R. at 9. Meanwhile, Ascot

revealed to Petitioner and Ms. Triton that she participated in Technical Promise in

2002, the same time that Allen attended the school as a full-time student. Id. at 6, 9.

On May 5, 2015, Petitioner and Mr. Triton designed and printed a perfect

cylinder, with a thicker-than-usual layer to increase its stability; Petitioner kept it as

a trophy. R. at 10. Mr. Triton and his daughter continued to work on his formula for

a stronger plastic filament, however. R. at 10-11. The technicalities were

troublesome; thus, Ms. Triton downloaded the formula onto a USB drive shaped like

a famous cartoon robot so she could bring it to professors in Azran for help. R. at 11.

Meanwhile, Petitioner began an intensive search into Allen. Id. She wanted

to be a “White Hat Hacker” and “become a force for good in the universe.” Id. Allen,

Petitioner believed, was the perfect role model to achieve this end. Id. Her first goal,

was to find and meet Allen while she is in Azran. Id. To do so, Petitioner scoured

sites in Darknet to find information on Allen. Id. Next, she devised a spreadsheet

that detailed the places at which he was recently cited and a description of the

disguise he was wearing (from his clothes to his wigs). R. at 11-12. After analyzing

this data, his next projected appearance would be on June 5, 2012 at a café on the

University of Misthallery campus. Id. at 12. Petitioner would be in Azran by then,

and put a reminder, “Meet Clive Allen at Café,” on her smartphone so she would not

forget. Id.

4

As a going away present, Mr. Triton compiled a playlist of songs, on a golden-

colored USB drive, for them to listen to. Id. On the way to the airport, Mr. Triton’s

car got pulled over. Id. While the officer was near the car, Petitioner’s reminder

alerted, displaying “Meet Clive Allen at Café” on her screen. Id. at 14. Knowing that

Allen’s associate may be operating in the area, the officer immediately placed the

girls under arrest. R. at 15.

In search of Ms. Triton’s bag, incident to arrest, they found the USB drive

containing her dad’s formula. Id. The officer seized “matches, hairspray, the 3D-

printed cylinder, a purple USB drive containing the curve code, the spreadsheet

tracking Mr. Allen, and the picture of the Mr. Allen computer-generated character”

she printed for reference from Petitioner’s bag. R. at 16. The gold USB drive, which

contained the plans for a 3D-printed gun, was also seized. Id.

The FBI was immediately contacted. Id. The investigation revealed that Ascot

had quit her job at Harrisburg High and fled her home upon learning of the girls’

arrest. Id. Ascot has not yet been located. Id.

Petitioner, Ms. Triton and Mr. Triton were all subsequently indicted by the

U.S. Attorney’s Office. Id.

B. Procedural History

At trial, experts testified to the following: (1) Petitioner urged hackers to reveal

“malicious corporate and government lies that hurt people;” (2) her Twitter activity,

including the post, “With one wish, I wish all guns would blow up.#guncontrol” and

various pro-DM articles; (3) that the plastic filaments formula and the gun plans

could create a gun that explodes when the trigger is pulled; significant bodily harm

5

or death is certain for the user and those in close proximity; and (4) that a bomb could

be made with the hairspray, matches, 3D-printed cylinder, and other miscellaneous

items found in Petitioner’s bag. R. at 17-18. The FBI was nearly certain that Ascot

is the “Dixie” in Dixie Millions and Petitioner testified that “it would be ‘pretty cool’”

if that were the case. Id. at 17.

Petitioner was convicted for violating 26 U.S.C. § 5845(f)(3) and 28 U.S.C. §

2339B and sentenced to serve a total of fifteen years in prison. Id.

On appeal to the Fourteenth Circuit, Petitioner claimed that the items found

in her possession had legitimate social applications, “including the advancement of

societal knowledge.” R. at 19. Petitioner urged the court to apply the purely

subjective standard, under 26 U.S.C. § 5845(f)(3), and claimed that her motivations

were pure and perpetuated by her desire to meet her “idol.” R. at 20. The court

denied Petitioner’s request and applied the hybrid standard established by United

States v. Rushcamp, 526 F.2d 1380, 1382 (6th Cir. 1975), and further developed by

United States v. Johnson, 152 F.3d 618, 628 (7th Cir.1998). In so doing, the

Fourteenth Circuit upheld Petitioner’s conviction, finding that the combination of 3D

gun plans, plastic filaments formula, hairspray, matches, and plastic cylinder could

be (and were intended to be) used to create a destructive device within the scope of

the Act.

Additionally, Petitioner claimed that 28 U.S.C. § 2339B violated her freedom

of speech and right to association under both a facial, strict-scrutiny challenge and

on an as-applied basis. R. at 21. She also asserted that there was insufficient

6

evidence to prove she intended to support DM and that she had not yet performed

any criminal act on behalf of DM. Id. at 22. Finally, Petitioner asserted that the

computer code intended for DM was harmless on its face and/or easy for the duo to

get on its own, and therefore not material. Id. at 23.

The court invoked Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) to

decline the strict scrutiny argument, and rejected an application of the “clear and

present danger” test established in Brandenburg v. Ohio, 395 U.S. 444 (1969). R. at

21. Petitioner’s actions were coordinated with DM because she already engaged in

activities to further its goals. Id. The Fourteenth Circuit held that her contributions

would help raise capital for DM, which it could then use for terroristic activities. Id.

Material support was established because “‘[m]aterial is not limited to the realm of

tangible.” R. at 23. Any enrichment, innocent or not, to the terrorist group is

prohibited by this statute, and by providing this code, DM saved money and time. Id.

The lower court’s decision was therefore affirmed. Id. at 24.

SUMMARY OF THE ARGUMENT

This Court should affirm the Fourteenth Circuit’s decision to uphold

Petitioner’s conviction for possessing a “firearm” not registered to her in the National

Firearms Registration and Transfer Record. In doing so, this Court should find that

the application of the Rushcamp hybrid standard is the correct method in

determining whether or not a device is a “destructive device” regulated by 26 U.S.C.

§ 5845(f)(3) of the Gun Control Act of 1968 (amending the National Firearms Act ).

Petitioner possessed more than one destructive device, either defined as an “(1)

7

explosive…(A) bomb” or “(3) any combination of parts either designed or intended for

use in converting any device into a destructive device as defined in…(1)…” U.S.C. §

5845(f)(1), (3). Circuits are divided as to the appropriate standard to apply to the

subsection (3) combination of parts “designed” or “intended” analysis, and resort to

either a purely subjective or purely objective standard. In choosing the hybrid

standard delineated by United States v. Rushcamp, 526 F.2d 1380, 1382 (6th Cir.

1975), this Court would provide a uniform two-step analysis for determining whether

or not the items in Petitioner’s possession could be regulated as a destructive device,

combining the strengths of both standards into one.

The first step in applying the hybrid standard to Petitioner’s case involves

analyzing the objective nature of the items she possessed and the possibility of

legitimate societal and personal uses for them. United States v. Johnson, 152 F.3d

618, 628 (7th Cir.1998). The combination of the 3D gun plans and plastic filament

formula, as well as the hairspray, matches, and plastic cylinder (pipe-like object) can

be used to make two separate explosive devices: an exploding gun and a pipe bomb.

R. at 18. In their individual capacities, the component parts are not explicitly

regulated by the firearms statute without the “designed or intended” element found

in subsection (3). If non-weapon, legitimate uses for the devices exist, however, the

court must proceed to the second step in the inquiry. The subjective intent of the

Petitioner in using the individual parts to create a destructive device is found in her

motivations behind planning to meet with a known FTO and deliver destructive

8

devices to him, tweeting messages about explosive guns, and her repeated desires to

become a White Hat Hacker and join the company of Dixie Millions. R. at 20.

The items in Petitioner’s possession fall within the Act’s definition of

“destructive device[s]” whether a purely subjective, objective, or hybrid standard is

used. The items not only create objectively designed destructive devices, but

Petitioner’s subjective intent behind the construction of these devices is sufficient to

uphold her conviction under the Act.

This Court should also affirm the Fourteenth Circuit’s finding that the

material support statute, 28 U.S.C. § 2339B, did not violate Petitioner’s First

Amendment right to association and freedom of speech on an as-applied basis. First,

Petitioner’s conduct fits within that which the statute prohibits. A person is

proscribed from “provid[ing] material support” to a known FTO. 18 U.S.C. §

2339B(a)(1). Providing a computer code that can be used to make the essential

element of a homemade bomb qualifies as material support because the item itself is

a weapon, and the act of demonstrating the code constitutes training and expert

advice or assistance. See generally 18 U.S.C. § 2339A (including weapons, training,

and expert advice or assistance in the definition of material support). Second,

Petitioner’s First Amendment right to association and freedom of speech is not

violated via conviction under the material support statute. A facial challenge lacks

backbone considering this Court’s previous finding of constitutionality in Holder v.

Humanitarian Law Project, 561 U.S. 1 (2010). Further, the test established in

Brandenburg v. Ohio is inapplicable when dealing with material support to an FTO.

9

395 U.S. 444 (1969). Petitioner is still allowed to meet Mr. Allen, and even join the

FTO; the statute prohibits providing material support to the organization. Finally,

there was sufficient evidence to prosecute the Petitioner under 18 U.S.C. § 2339B

because the Record demonstrates she was aware that DM was an FTO. Her

conviction under attempt was proper because she intended to provide material

support to DM and made substantial steps to achieve that mission, including tracing

his whereabouts, bringing the computer code and sample cylinder, setting her

calendar reminder, and traveling to the airport.

10

ARGUMENT

I. THE RUSHCAMP HYBRID STANDARD CORRECTLY APPLIES TO

INDIVIDUALS CHARGED UNDER 26 U.S.C. § 5845(f)(3) OF THE NATIONAL

FIREARMS ACT OF 1934 AND REQUIRES THIS COURT TO AFFIRM THE

LOWER COURTS’ FINDING OF PETIONER’S GUILT.

The original National Firearms Act (the “Act”) of 1934 created a means by

which Congress could “impose[s] strict registration requirements on statutorily

defined ‘firearms.’” Staples v. United States, 511 U.S. 600, 602 (1994). Originally

inspired by the dangers of untracked and unregulated automatic weapons, such as

machineguns, the Act was amended by Title II of the Gun Control Act in 1968 (the

“GCA”) to evolve with the prevalent weapons of that particular era. See United States

v. Oba, 448 F.2d 892, 897 (9th Cir. 1971). The statutes were “intended to regulate

the importation, possession, and transfer of weapons, particularly guns, and to stem

the traffic in certain unusually dangerous weapons, including ‘destructive devices,’

for which Congress saw no legitimate uses.” United States v. Posnjak, 457 F.2d 1110,

1111 (2d Cir. 1972).

While machineguns and other “gangster-type” weapons were specifically

named in the Title II amendment, 26 U.S.C. § 5801 et seq., another category of

firearms was incorporated for registration, destructive devices. See United States v.

Oba, at 895, 897. Pursuant to 26 U.S.C. § 5845, “a defendant may not possess an

unregistered ‘destructive device,’” defined as:

(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

11

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.

26 U.S.C.A. § 5845 (emphasis added). Congress determined that a device could be

“‘converted’ into a destructive device as defined in Subparagraphs (1) and (2) by way

of ‘design or intent.’” See S. REP. NO. 90-1501, pt. 47 (1968). The government must

prove the following: (a) that a device was converted, or convertible, into a destructive

device using component parts, and (b) those individual component parts were

intended or designed to make that destructive device. A tri-partisan split exists as

to whether intent is relevant in “determining if component parts constitute a

destructive device under § 5845(f).” United States v. Spoerke, 568 F.3d 1236, 1247

(11th Cir. 2009).

The First, Second, and Tenth Circuits maintain that the intent of the

individual possessing or using the weapons in question is irrelevant. Posnjak, 457

F.2d at 1116; See also United States v. Markley, 567 F.2d 523, 527 (1st Cir. 1977);

United States v. Neal, 692 F.2d 1296, 1304 (10th Cir. 1982). Applying the objective

standard, these circuits “concentrate on objectively identifiable weapons of war…”

and do not look to subjective intent when considering whether component parts have

legitimate societal uses exempting them from regulation. Posnjak, 457 F.2d at 1116.

12

The Fourth, Fifth, Eighth, and Ninth Circuits analyze this issue using a

subjective standard, and find the defendant’s intent wholly relevant in categorizing

the device as statutorily destructive. See United States v. Wilson, 546 F.2d 1175,

1177 (5th Cir. 1977); See also Langel v. United States, 451 F.2d 957, 962 (8th Cir.

1971); United States v. Morningstar, 456 F.2d 278, 281 (4th Cir. 1972); United States

v. Oba, 448 F.2d 892 (9th Cir. 1971). These circuits hold that explosives not explicitly

named in subsection (1) or (2) of the Act may still be proscribed “depending on their

intended use.” United States v. Morningstar, 456 F.2d 278 (4th Cir. 1972). Thus, an

individual’s subjective intent to create a destructive device with component parts,

even if not specifically identified by the Act, is determinative.

The remaining circuits analyze intent using a bilateral or hybrid approach.

The Third, Sixth, and Seventh Circuits first determine whether “the objective design

of the device or component parts indicates that the object may only be used as a

weapon, i.e., for no legitimate social or commercial purpose…” United States v.

Johnson, 152 F.3d 618, 628 (7th Cir.1998). If the court fails to find a legitimate

purpose for the component parts, the analysis ends and the device is labelled a

destructive device. Id. However, if there are legitimate uses for the component parts,

“then subjective intent is an appropriate consideration in determining whether the

device or parts at issue constitute a destructive device under subpart (3).” Id. The

Sixth Circuit in United States v. Rushcamp recognized that when a seemingly

innocuous item, found instrumental to the creation of a home-made bomb, is in

question, the court must analyze its intended role in the final product, which then

13

qualifies the device as a destructive device under subpart (3). See United States v.

Rushcamp, 526 F.2d 1380, 1382 (6th Cir. 1975) (quoting the District Judge in his

opinion, highlighting the importance of analyzing objectively non-criminal items

through a subjective intent lens).

The Petitioner urges this Court to apply the purely subjective test, however,

this standard falls short of Congress’s intent for the meaning of “destructive device.”

Rather, the Rushcamp standard should be applied to all individuals charged under

26 U.S.C. § 5845(f)(3), because it reconciles the strengths and weaknesses of both the

subjective and objective standards.

A. This Court Should Resolve The Circuit Split And Find That The Rushcamp

Hybrid Standard Governs, Because a Purely Objective or Purely Subjective

Standard Fails To Accomplish The Goals of 26 U.S.C. § 5845(F)(3).

Of the three possible ways to interpret the language of National Firearms Act,

26 U.S.C. § 5845(f)(3), the Rushcamp hybrid standard adopted by the Seventh and

Third Circuits is the most suitable and should be applied by this Court. The language

of the statute, defining “destructive device,” incorporates both objectivity, as well as

subjectivity:

(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.

26 U.S.C. § 5845(f) (emphasis added). The reference to subsections (1) and (2) speaks

to the analysis of a completed device’s objective nature and whether it could serve a

legitimate, non-weapon purpose. See Johnson, 152 F.3d at 627 (stating that “[i]n

those cases, the only issue is whether the objective characteristics of the device bring

14

it within the ambit of the statute.”). The term “intended” speaks to the possessor’s

subjective intent to form a weapon and thus regulatable by the Act. Id. (noting that

“a person found to possess unassembled component parts or an assembled

combination of parts that is less clearly within the ambit of subpart (1)…”). As such,

the most appropriate standard applied to subsection (3) of the Act is the hybrid

standard.

This case is an example of how the hybrid standard delivers the most just

outcome in situations involving objectively benign items combined with subjectively

malicious intent. Where an unquestionably innocent person possesses a combination

of items assembled into a destructive device under subsection (1) or (2), detonable or

not, bringing an element of subjective intent into the standard removes the heavy

burden of strict liability. An individual may simply possess items that could be

converted into a destructive device, but are actually intended for a purpose consistent

with societal norms. Thus, it is equitable to consider both objective and subjective

factors because, after all, “the ‘destructive device’ definition contained in 26 U.S.C. §

5845(f) was intended to operate in a precise but flexible manner.” Id.

The Rushcamp hybrid standard still requires a preliminary objective analysis

of the actual device, constructed or constructible, to determine whether the completed

result is a device regulated by the Act. Id. At 628. Including the objective element

prevents weapons with no “legitimate social or commercial purpose” from escaping

prosecution simply because the possessor’s intent was sufficiently benign. Id.; See

also United States v. Saunders, 166 F.3d 907, 914 (7th Cir.1999) (finding subjective

15

intent irrelevant to the analysis if the “objective design of the device indicates that

the object serves no legitimate social or commercial purpose…”). A subjective intent

inquiry becomes integral “only when the objective characteristics of the device

demonstrate that it may not be a weapon.” United States v. Jackman, 72 F. App'x

862, 865 (3d Cir. 2003) (quoting Johnson, 152 F.3d at 627).

In essence, the Rushcamp standard provides a uniform application, resulting

in a marriage of the opposing standards for practical use by all circuits. Courts that

use the objective standard and analyze devices strictly mentioned by subsections (1)

and (2), due to their reluctance to expand the list of regulatable firearms, will find

that the hybrid standard still performs their desired analysis in its first step. The

remaining circuits require a mens rea component, the importance of which has been

established by this Court in Staples v. United States, because Congress included the

words “designed” or “intended.” See 511 U.S. 600 (1994). Even these courts will have

an opportunity to conduct a subjective analysis for situations in which the presence

of a clear destructive device is not readily apparent.

The purely objective standard produces inconsistent results when applied to

the component parts under subsection (3), which are then converted into destructive

devices named by subsections (1) or (2). In a purely objective court, an individual

may claim that the objects found in his/her possession are innocuous because they

have the ability to inform or advance societal knowledge to varying degrees. For

example, the components of a Molotov Cocktail, “a device comprising a bottle,

gasoline, and a rag,” may all be “legally possessed” in their individual capacities.

16

United States v. Simmons, 83 F.3d 686, 687 (4th Cir. 1996). Applying the objective

standard, prosecution would fail because the individual’s relevant intent would be

excluded from the court’s determination of fault. R. at 19-20. In other words, the

purely objective standard is under-inclusive when applied on its own.

Proponents of the purely objective standard argue that intent is not relevant

because Congress “made no mention of devices made criminal because of the intent

of the possessor…” Posnjak, 457 F.2d at 1117. This reasoning fails to apply the

general rules of statutory interpretation, and disregards this Court’s subsequent

clarifications pointing to the contrary:

[The] [f]act that [a] criminal statute is silent concerning

mens rea required for violation does not necessarily

suggest that Congress intended to dispense with

conventional mens rea element, which would require that

defendant know facts that make his conduct illegal; rather,

court must construe statute in light of background rules of

common law, in which requirements of some mens rea for

crime is firmly embedded.

Staples v. United States, 511 U.S. 600 (1994). A mens rea requirement is found in

the plain reading of subsection (3), where the words “intended” and “designed” are

included. See Morningstar, 456 F.2d at 280.

The purely subjective standard would free otherwise guilty defendants, absent

some form of a confession or stipulation as to their subjective intent. See Oba, 448

F.2d at 894 (finding that where the defendant entered a guilty plea admitting his

intent to use commercial dynamite to form a weapon, subjective intent was clearly

proven.). Defendants, such as Petitioner, favor this standard because actual intent

is difficult to prove. For instance, subjective intent can be masked and convoluted in

17

such a way that a person’s true intent remains hidden. As the Fourteenth Circuit

noted, terrorist organizations typically recruit from groups of very young people

whose subjective intent could not be readily proven or disproven. R. at 20. A recent

example of masked intent is illustrated in the Boston Bombers case. A 21-year old

man was prosecuted for detonating a homemade pressure cooker bomb with his

brother during the Boston Marathon, and was described by friends as “just a normal

American kid.” See Leti Volpp, The Boston Bombers, 82 FORDHAM L. REV. 2209, 2220

(2014). The government would be severely disadvantaged if that court applied the

subjective intent standard, because it would have to prove the defendant’s inner

thoughts.

Petitioner urges this Court to adopt a purely subjective standard in an effort

to justify possession of the individual items found in or near her luggage at the time

of arrest, including the hairspray, matches, plastic cylinder, 3D gun plans, and plastic

filaments formula. R. at 18, 20. This approach, however, is the least likely to serve

the Act’s purpose and most likely to permit otherwise-guilty criminals to freely

possess component parts capable of creating a destructive device under subsections

(1) or (2). R. at 19. Essentially, if the component parts were not intended or designed

to create a destructive device under subsection (1) or (2), the individual would escape

charges under § 5845(f)(3) altogether. Posnjak, 457 F.2d at 1117. This Court should

rule uphold Fourteenth Circuit’s finding that the purely subjective standard is not

appropriate, and therefore, inapplicable to individuals charged under § 5845(f)(3). R.

at 19, 24.

18

B. Applying The Rushcamp Hybrid Standard When Evaluating Petitioner’s

Chargeability Under 26 U.S.C. § 5845(F)(3), The Combination of Items in

Petitioner’s Possession at The Time of Arrest Fall Within The Scope of The

“Destructive Device” Definition Intended by Congress.

Subsection (1) and (2) of § 5845(f) enumerate categories of weapons classified

as destructive devices that must be registered under the Act. Oba, 448 F.2d at 900.

Subsection (3) is the catchall provision, thereby encompassing those weapons

intended or designed to be converted into a destructive device under subsections (1)

or (2). See Oba, 448 F.2d at 900. A device equipped with “design features that

eliminate any claimed entertainment or other benign value supports a finding that a

device was designed as a weapon.” Spoerke, 568 F.3d at 1236. To conduct the

Rushcamp hybrid analysis, this Court must look to the two distinct destructive

devices present in this case: the 3D gun plans with the plastic filaments formula and

the pipe bomb made from the hairspray, matches, and plastic cylinder. R. at 18.

First, the 3D gun plans and plastic filaments formula are analogous to an

explosive device defined in § 5845(f)(1)(A) and (F), as well as those falling under in §

5845(f)(2):

(f) Destructive device. The term “destructive device” means

(1) any explosive, incendiary, or poison gas (A) bomb, (B)

grenade … (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 …

26 U.S.C. § 5845. According to the FBI expert’s testimony, the plastic filaments

formula and 3D gun plans, when combined, successfully and readily transform into

an explosive device that expels a projectile. R. at 18. While 3D printed explosive

19

devices are not expressly excluded under §5845(f)(1) or (2), recent developments in

emerging technology suggest a pressing need to incorporate these devices into the

Act. The confusion as to whether 3D printed explosive devices are governed by the

Act is due to legislative delay; the Act has not yet caught up with “self-made

weapons.” See Katherine E. Beyer, Note, Busting the Ghost Guns: A Technical,

Statutory, and Practical Approach to the 3-D Printed Weapon Problem, 103 KY. L.J.

433, 442 (2014) (“Unfortunately, it seems as though these laws are soon to be

rendered outdated and under-inclusive as 3-D printing of guns becomes more

accessible and prolific.”). Nonetheless, such devices are still “destructive” due to their

design and ability to convert into tangible explosive devices. Therefore, an inquiry

into Petitioner’s intent regarding the explosive gun, described above, is unnecessary

because no legitimate social or commercial purpose can be argued.

Second, the hairspray, 3D-printed cylinder, and matches found at the time of

arrest can be converted into a rudimentary pipe bomb regulated under Section

5845(f)(3), with the finished product falling under the (1)(A) definition: an explosive

bomb. 26 U.S.C. § 5845(f) . The testimony introduced at trial confirmed that the

combined components do, in fact, make an explosive bomb, and is therefore sufficient

to conclude that the device is a destructive device. See Spoerke, 568 F.3d at 1243

(finding that evidence of the destructive nature of the improvised explosive devices

was sufficient to uphold conviction where the device was designed as a weapon).

Additionally, “the critical inquiry is whether the device, as designed, has any value

other than as a weapon.” Id. at 1247. The 3D cylinder (pipe function), hairspray

20

(pressurized contents), and matches (igniting agent) can have no value outside of the

weapons category because, similar to the devices in Spoerke, they have “no social or

entertainment use, they propel[] fragments, and the fragments were capable of

causing severe injury to people in the vicinity.” Id. Pipe bombs are particularly

dangerous and courts have recognized their inherently harmful nature as being

“dangerous, indiscriminate, anti-personnel and capable of seriously injuring a

number of people at one time.” United States v. Dempsey, 957 F.2d 831, 834 (11th

Cir. 1992).

1. If Petitioner’s Subjective Intent is Found Relevant to The Application

of The Rushcamp Hybrid Standard, The Fourteenth Circuit Court of

Appeal’s Conclusion Regarding Her Motives is Correct.

The Ninth Circuit in Oba explained that within the definition of “‘firearms’

covered by the Act” were destructive devices “having …no appropriate private use.”

Oba, 448 F.2d at 897. If this Court finds that the devices’ components have objectively

appropriate private or legitimate social uses, the second phase of the Rushcamp

hybrid standard is triggered. To prevail, the Petitioner must demonstrate a lack of

intent to create the destructive devices through the introduction of alternative

motives for her actions.

Here, Petitioner’s plans to travel to Azran, meet a member of a FTO, and bring

explosive 3D gun plans supports an inference of intent. R. at 20; See also United

States v. Hamrick, 43 F.3d 877, 885 (4th Cir. 1995) (finding that an individual who

sent a dysfunctional bomb to the United States Attorney with awareness of its

destructibility did so with the requisite intent). Petitioner claims she was seeking

21

the approval of her “role model,” the only known leader of the FTO, in transporting

the components of the two destructive devices. R. at 20. The Seventh Circuit noted

in Johnson that “there well may be instances when the construction of a device,

objectively assessed, raises the reasonable possibility that it was designed as

something other than a destructive device.” Johnson, 152 F.3d at 627 (citing United

States v. Worstine, 808 F. Supp. 663, 664, 668–70 (N.D. Ind. 1992) (noting the obvious

design differences between a galvanized pipe bomb and PVC tubing “firecracker-type”

devices).

In the present context, a pipe bomb cannot be designed as something other

than a destructive device. There is no possible commercial or entertainment value

arising from the combination of the hairspray, matches, and plastic cylinder.

Petitioner brought the 3D gun plans and plastic filaments formula to impress her

idol, an FTO leader with proven hacking ability and a pension for computer generated

destruction. R. at 20. Petitioner does not deny the “terrorist sympathies” cited by

the Fourteenth Circuit, including her Darknet interactions and desire to become a

White Hat Hacker just like her FTO “role model,” but rather presents them as

innocent fan-like behavior. Id.; See also R. at 11. Petitioner’s alleged innocent

worship of a known terrorist cannot overcome the realities of her actions, which

require a “heightened scrutiny” because national security is clearly at issue. R. at 20.

Petitioner’s subjective intent to create a destructive device is deduced from the

following: Petitioner’s repeated expressed intent to become a professional hacker;

express intent to give the 3D gun plans and plastic filaments formula to DM; tweets

22

expressly stating her desire for all guns to “blow up;” and express intent to consult

and collaborate with a member of an FTO. R. at 11; 18.

The conclusion that Petitioner is “simply a young woman who was likely

manipulated by a person she trusted” is naïve and quite dangerous. R. at 25. This

“mixed-up teenager” was able to calculate the whereabouts of a known FTO using the

Darknet as her own personal mapping source. R. at 11. She created an extensive

spreadsheet detailing Allen’s most recent movement patterns and calculated his

precise location on the University of Misthallery campus for June 5th. Id. Petitioner

was also capable of adjusting the printing code of a 3D plastic cylinder so that it would

produce a perfectly curved model. R. at 10. Suggesting that the aforementioned skills

and actions are the product of an unsuspecting teenager is far too assuming. If this

Court incorporates subjective intent in this determination, it need not look beyond

the conduct DM, for whom the gun plans were brought. Thus, this Court should

affirm the Fourteenth Circuit in upholding Petitioner’s conviction under the Act

based on the objective nature of the destructive devices, as well as Petitioner’s

subjective intent to create the devices using the component parts.

2. The Devices’ Components Are Readily Convertible to Destructive

Devices and Petitioner Was Able to Do So.

Petitioner is subject to conviction for violating the Act for what she could do,

not what she might do. R. at 24 (Morgan, J., dissenting). Expert testimony at trial

established that the primitive bomb components could be readily converted into a

destructive device, i.e. an explosive pipe bomb. R. at 18. The items necessary to

construct the pipe bomb were located within Petitioner’s reach, evidencing that

23

creating a destructive device was possible. R. at 12. Where an individual was charged

under Section 5845(f)(3) for possessing “gun powders, fuses, blasting caps, and the

capped and drilled pipe segment,” the Sixth Circuit found that the government met

its burden by showing that the device was “readily convertible to a destructive

device.” United States v. Pearce, 86 F. App'x 919, 921 (6th Cir. 2004). The Court in

Pearce noted that “designed” within the context of the statute “refers to the objective,

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

possessor.” Id. (citing United States v. Langan, 263 F.3d 613, 625 (6th Cir. 2001)).

Thus, whether a device is readily convertible refers not to the intent to convert, but

rather the ability to convert, contravening Judge Morgan’s initial sentiments in the

dissent. R. at 24.

Here, an analysis of the 3D gun plans and plastic filaments formula was

conclusive in finding that, regardless of the inactive nature of the gun plans, the

combination could be readily converted into a destructive device. R. at 21; 18. Despite

their technological form, the blueprints for an explosive device can be converted into

an actual explosive with the requisite materials, such as a 3D printer, even if

Petitioner is not in immediate possession of those materials. See Simmons, 83 F.3d

at 686 (holding that a “‘Molotov cocktail’ was a destructive device, regardless of

whether defendant had means of lighting it.”). The gun plans and plastic filaments

formula satisfy the “readily convertible” requirement because the only missing

element is akin to the missing lighting agent described in Simmons. See Id. at 687

(citing United States v. Tankersley, 492 F.2d 962, 966 (7th Cir. 1974) (affirming

24

conviction for possession of a “destructive device” which consisted of “a bottle, a

firecracker and tape, and paint remover: the components of a Molotov cocktail”)).

A 3D blueprint for an explosive destructive device, in this case a mixture of a

gun and a bomb, is a product of unmatched technology, and thus, in need of “speedy

reform” to prevent damage caused by this statutory gap. See Beyer, supra, at 434.

This technology hit the market, only a little over a year ago

and users have already created fully functioning guns, one

million gun plans have been downloaded, and printer

prices have dropped from $10,000 to $1,000. Technology

moves fast, especially this type of innovative and

consumer-desired technology, and lawmakers need to keep

up.

Id. Thus, this Court should find that 3D gun plans fall within the scope of components

capable and designed or intended to be converted into a destructive device, thereby

affirming the decision to uphold Petitioner’s conviction under Section 5845(f)(3).

C. Even if This Court Applies The Purely Objective Standard, Petitioner’s

Conviction Satisfies The Statutory Requirement Because The Unassembled

Parts Found in Her Possession at The Time of Arrest Do Not Form an Object

With a Legitimate Social or Commercial Purpose.

If this Court chooses to follow the Second Circuit’s purely objective standard

articulated in Posnjak, Petitioner’s possession of the items combined to product an

item specified under (1) or (2) still satisfies the standard for regulation under the Act.

See Posnjak, 457 F.2d at 1117. As previously established through the first step of the

Rushcamp hybrid standard, the 3D guns plans and plastic filaments formula are

proven convertible into a destructive device that explodes upon each use. R. at 16.

Due to the dangerous nature of the pipe bomb and the explosive gun’s potential to

wreak havoc on the possessor and those within her immediate vicinity, possession of

25

the device or components designed to create the device are objectively within the

purview of the Act.

The Third Circuit in United States v. Urban found intent “irrelevant where it

is clear that components, when combined, would create a destructive device.” United

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

782 F.3d 338, 346 (7th Cir. 2015). Furthermore, the purpose of the statute would be

“ill-served by an interpretation which excluded from coverage ‘home-made’ bombs…”

Markley, 567 F.2d at 526-27 (quoting United States v. Curtis, 520 F.2d 1300 (1st Cir.

1975)). The Tenth Circuit recently found the “[c]ombination of black powder

container, canon fuse, and electric matches could be considered [a] ‘destructive device’

within [the] meaning of [the] statute prohibiting possession of unregistered

destructive devices, even though disassembled…” United States v. Berres, 777 F.3d

1083 (10th Cir. 2015). Because the component parts in both devices fall under either

subsection (1) or (2), the Fourteenth Circuit’s finding was correct. 26 U.S.C. § 5845(f).

Thus, Petitioner possessed two objectively identifiable destructive devices defined by

the Act, and her conviction should be upheld.

II. A PERSON CAN BE PROSECUTED UNDER 18 U.S.C. § 2339B, WITHOUT

THEIR FIRST AMENDMENT RIGHTS JEAPORDIZED, FOR PLANNING TO

MEET AND CONFER WITH THE LEADER OF A FTO IN ORDER TO PROVIDE

COMPUTER CODE USED FOR MAKING THE ESSENTIAL ELEMENT OF A

BOMB.

In 1996, the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) was

enacted, just one year after Timothy McVeigh and Terry Nichols bombed the

Oklahoma City federal building. AEDPA, Pub. L. No. 104-132, § 302-03, 110 Stat.

26

1214, 1248-50 (1996); Terror Hits Home: The Oklahoma City Bombing, THE FBI,

https://www.fbi.gov/about-us/history/famous-cases/oklahoma-city-bombing. The

AEDPA criminalized providing “material support” to any Foreign Terrorist

Organization (“FTO”) and added 18 U.S.C. § 2339B to the criminal code. AEDPA,

Pub. L. No. 104-132, § 303, 110 Stat. 1214, 1250 (1996); 18 U.S.C. § 2339B. Six weeks

after the September 11, 2001 attacks on the World Trade Centers, another Act was

passed which added “expert advice or assistance” to the list of “material support”

prohibited by the statute. Uniting and Strengthening America by Providing

Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act)

Act of 2001, Pub. L. 107-56, § 805, 115 Stat. 272, 377 (2001). Other terms describing

conduct that is prohibited, specifically “personnel,” “training,” and “expert advice or

assistance,” were clarified in 2004 with the enactment of the Intelligence Reform and

Terrorism Prevention Act (“IRTPA”). IRTPA, Pub. L. 108-458, § 6603, 118 Stat. 3638,

3762 (2004). After several catastrophic, terrorist attacks and subsequent

amendments to the AEDPA, we are left with the current “material support statute,”

18 U.S.C. § 2339B.

A. Making Plans to Meet the Leader of a Foreign Terrorist Organization in Order

to Explain and Provide a Dangerous Computer Code Fits Squarely Within the

Parameters of 18 U.S.C. § 2339B.

To end future terrorist attacks, the material support statute proscribes anyone

from “knowingly provid[ing] material support or resources to a foreign terrorist

organization, or attempt[ing] or conspir[ing] to do so.” 18 U.S.C. § 2339B(a)(1).

“Material support or resources” is defined as:

27

Any property, tangible or intangible, or service, including

currency or monetary instruments or financial securities,

financial services, lodging, training, expert advice or

assistance, safehouses, false documentation or

identification, communications equipment, facilities,

weapons, lethal substances, explosives, personnel (1 or

more individuals who may be or include oneself), and

transportation, except medicine or religious materials.

18 U.S.C. § 2339A(b)(1). At issue before this Court, is whether a person can be

prosecuted under the material support statute for planning to show and demonstrate

a potentially dangerous computer code to a FTO. This conduct not only qualifies as

material support, but is the exact behavior Congress intended to prevent through the

enactment of the AEDPA.

1. A Computer Code that Provides the Capabilities to Create the

Essential Component of a Bomb is Considered a Weapon and

Therefore Prohibited from Production to a Foreign Terrorist

Organization.

The material support statute makes clear that individuals are prohibited from

providing, or attempting or conspiring to provide, “material support or resources to a

foreign terrorist organization.” 18 U.S.C. § 2339B(a)(1). That which qualifies as

material support or resources is expressly defined both in Section 2339B and its sister

statute, Section 2339A. See e.g., 18 U.S.C. § 2339A(b) (defining “training,” “expert

advice or assistance,” and “material support or resources”); 18 U.S.C. § 2339B(h)

(specifying the type of “personnel” the statute proscribes). “Material support or

resources” includes, among other things, “lodging, training, expert advice or

assistance . . . weapons, lethal substances” and “explosives.” 18 U.S.C. § 2339A(b)(1)

(emphasis added).

28

Initially a computer code may not appear to constitute a weapon, however,

when it provides the user with the means to create a bomb, it transforms into that

which the material support statute prohibits. Section 2339B, “is, on its face, a

preventive measure – it criminalizes not terrorist attacks themselves, but aid that

makes the attacks more likely to occur.” Holder v. Humanitarian Law Project, 561

U.S. 1, 35 (2010). Providing a FTO with weapons and explosives leads to the

subsequent use of such items by the organization. Thus, a computer code that creates

these lethal means should be considered a weapon in and of itself. Looked at plainly,

weapon is defined in Black’s Law dictionary as “an instrument used or designed to be

used to injure or kill someone.” Black’s Law Dictionary 1827 (10th ed. 2014). Applying

this basic definition to the subject at issue, a dangerous computer code can without a

doubt “injure” an innocent individual, or “kill” a person against which it is used. In

fact, this Court has even found computer code to constitute material support. R. at

24 (referencing Holder v. Humanitarian Law Project, 561 U.S. 1, 47 (2010) (Breyer,

J., dissenting).

The computer code that Petitioner developed with the help of Ascot and Mr.

Triton qualifies as a weapon and, therefore, cannot be provided to Allen. Case law

and the material support statute makes clear that any form of weapons or explosives

provided to a designated FTO is against the law and appropriately proscribed under

the material support statute. 18 U.S.C. §§ 2339A, 2339B; Sokolow v. Palestine

Liberation Organization, 60 F. Supp. 3d 509 (S.D.N.Y. 2014); United States v. Assi,

414 F. Supp. 2d 707 (E.D. Mich. 2006) (night vision goggles, thermal imaging camera,

29

global positioning satellite modules); United States v. Al Kassar, 660 F.3d 108, 114

(2d Cir. N.Y. 2011) (anti-aircraft missiles); United States v. Lindh, 212 F. Supp. 2d

541 (E.D. Va. 2002) (grenades). Petitioner intended to provide Allen with a modified

curve code that can be used to create items with a 3D printer such as a perfect

cylinder. R. at 10, 12. While the cylinder at issue may have alternative, peaceful

uses on its own, this artifact is the most essential component for the creation of a

devastatingly dangerous home-made bomb.

At trial, an expert for the Foreign Bureau of Investigation (FBI) attested to the

fact that a perfect cylinder, combined with inexpensive and easily accessible items,

such as matches and hairspray, can be used to create a bomb. R. at 51. Certainly,

by looking at the proposed shopping list for the explosive, the most difficult item to

acquire is the very item that Petitioner attempted to provide – the code to create a

perfect cylinder. The same idea was effectuated in Sokolow v. Palestine Liberation

Organization, where the court denied the defendant’s motion for summary judgment

because a triable issue of fact for the jury was presented as to whether defendant

provided material support in the form of bomb-making supplies to an FTO. 60 F.

Supp. 3d 509, 521 (S.D.N.Y. 2014).

The Fourteenth Circuit correctly disregarded Petitioner’s argument that the

computer code she intended to provide to DM is harmless and something that the

FTO could easily acquire on their own. R. at 23. A terrorist organization can likely

get weapons and explosives from many sources, just because alternate doorways are

available does not mean that the one DM walked through should be free of guilt.

30

Christopher Harress, ISIS Weapons Growing In Number, Sophistication: A Soviet,

Balkan And American Mix, But The Group Can’t Use All Of Them, INT’L BUSINESS

TIMES (Aug. 15, 2014 8:32 AM), http://www.ibtimes.com/isis-weapons-growing-

number-sophistication-soviet-balkan-american-mix-group-cant-use-all-1659176.

Following the logic proposed by Petitioner, the material support statute would be

found completely useless. No one could be prosecuted under Section 2339B for

providing bombs to an FTO, under this reasoning, because the defendant would

simply argue that the terrorists could obtain the same explosive somewhere else.

Further, if a person provides an FTO with a rare type of wire that, on its own accord

is harmless, but combined with other ingredients creates a nuclear weapon, he or she

can be free from prosecution. These persons provide an essential element to the

respective FTO, and their actions do not fall short of providing material support.

In addition, devastating consequences would transpire if DM had access to this

weapon. Allen is known for his recent release of millions of documents stolen illegally

from the NSA. R. at 5. He used the Darknet as the channel with which to disseminate

this material to people all over the world. Id. With just the click of a button,

hacktivist groups and individuals using this communication device had access to the

confidential information. Id. The dangers that could arise by DM posting the curve

code on Darknet are unthinkable. This would essentially provide the main

component of a powerful bomb to anyone who knows how to connect; exactly the type

of problem the material support intends to prevent.

2. In the Alternative, Showing and Demonstrating a Potentially

Dangerous Computer Code is Prohibited by the Material Support

31

Statute Because it Qualifies as Training or Expert Advice or

Assistance.

Even if this Court finds that a potentially dangerous computer code does not

constitute a weapon, the act of demonstrating a unique and complex computer code

is still within Section 2339B’s parameters. Aside from the tangible forms of support

that one can provide to a FTO, there are also services that fall under the material

support statute’s umbrella. The Fourteenth Circuit echoed this fact when stating,

“‘Material’ is not limited to the realm of the tangible.” R. at 23. Specifically, the

statute also bans “training” such as “instruction or teaching designed to impart a

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

Further, a person cannot provide expert “advice or assistance derived from scientific,

technical, or other specialized knowledge.” 18 U.S.C. § 2339A(b)(3).

Training can take many different forms. In United States v. Mustafa, the court

found that hosting websites with training manuals and instructions for making

explosive devices and other weapons properly constituted material support. 406 Fed.

Appx. 526, 528 (2d Cir. 2011). Specifically, the appellant provided training on how to

modify an AK-47 to mimic a grenade launcher, make a silencer, and slit throats. Id.

at 530. In United States v. Warsame, defendant was prosecuted for teaching English

at an Al Qaeda training camp. 537 F. Supp. 2d 1005, 1018 (D. Minn. 2008).

Transferring and demonstrating videos on how to make explosive devices are also

prohibited. United States v. Amawi, 695 F.3d 457, 466 (6th Cir. 2012).

Case law also demonstrates that a high degree of knowledge is not required

before one can offer expert advice or assistance. Rather, some level of specialization

32

above general knowledge is sufficient. This Court has supported this contention in

Holder v. Humanitarian Law Project, where it was held that “speech is not barred if

it imparts only general or unspecialized knowledge.” Humanitarian Law Project, 561

U.S. at 27. Further, Justice Breyer admitted that “computer training qualifies as

material support. Holder v. Humanitarian Law Project, 561 U.S. 1, 47 (2010) (Breyer,

J., dissenting). Demonstrating and explaining a computer code cannot be done by the

average person. Not only does it require some degree of heightened intelligence in

the subject, it also involves a form of teaching. See 18 U.S.C. § 2339A(b)(3) (requiring

specialized or technical knowledge). For these reasons, the act of demonstrating a

complex, potentially dangerous computer code fits within the prosecutorial gambit of

the material support statute.

Petitioner’s attempt to demonstrate and explain the complex, modified curve

code falls under “expert advice or assistance” and “training” that is prohibited by the

material support statute. Her specialized knowledge in computer programming

began in early November 2012, when Ascot started to tutor her on the program C++.

Id. at 4. These private sessions went on for four months. Id. Her talent was so finely

tuned at this point, that by a quick glance of the computer code from Mr. Triton’s 3D

printer, she “discovered an error that caused the positioning of the extruder . . . to be

off.” R. at 7. Almost immediately, Petitioner was able to “beg[i]n working on a

solution.” Id. When her work reached an impasse, she resumed coding with the help

of Ascot. Id. at 6-7. Receiving guidance from a seasoned programmer, who is also

33

one of the first graduates of Technical Promise, is strong proof that petitioner

possesses specialized knowledge in computer code. R. at 3.

With this knowledge and experience, Petitioner attempted to demonstrate her

hard work to Allen. This demonstration is expert advice or assistance because it

imparts on him technical and specialized knowledge that she garnered through

personal hard work and study. 18 U.S.C. § 2339A(b)(3). Further, by showing Allen

the modified curve code and explaining its structure and purpose, she is training the

Dixie Million leader on a specific skill, computer coding. 18 U.S.C. § 2339A(b)(2).

For these reasons, this Court should find that Petitioner’s attempted actions

fit squarely within the material support statute.

B. The First Amendment’s Guarantee of Freedom of Speech and Right to

Association is Not Violated by 18 U.S.C. § 2339B Because the Government’s

Interest in Stopping the Attacks of Modern Terrorist Organizations is Great

and the Statute is Narrowly Tailored to Achieve That End.

The First Amendment challenge raised by Petitioner requires this Court to

analyze whether 18 U.S.C. § 2339B violated her freedom of speech and right to

association. Indeed, political speech and association are at the epicenter of the First

Amendment’s broad protections. Mills v. Alabama, 384 U.S. 214, 218 (1966); Turner

Broad. Sys., Inc. v. Fed. Commc’ns Comm’n, 512 U.S. 622, 641 (1994) (“At the heart

of the First Amendment lies the principle that each person should decide for himself

or herself the ideas and beliefs deserving of expression, consideration, and

adherence.”). However, there is no First Amendment violation here because

Petitioner’s right to associate is not restricted by the statute and limiting the narrow

34

speech at issue is justified under a heightened scrutiny analysis. The Constitution

provides that:

Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press; or the right

of the people peaceably to assemble, and to petition the

government for a redress of grievances.

U.S. CONST. amend. I (emphasis added).

Congress has consistently asserted their vow to protect speech and

associational rights with regard to the material support statute. Senator Hatch

explained that “[w]e have worked hard to make sure [§2339B] does not . . . place

inappropriate restrictions on cherished first amendment [sic] freedoms.” 142 Cong.

Rec. S3352-01 S7548, 7556 (daily ed. Apr. 16, 1996) (statement of Sen. Hatch). A

House Report further emphasizes that “[t]here is no proscription on one’s right to

think, speak, or opine in concert with, or on behalf of, such an organization.” H.R.

Rep. No. 104-383, at 43-45 (1995). Even the statute disclaims constitutional issues,

“[n]othing in this section shall be construed or applied as to abridge the exercise of

rights guaranteed under the First Amendment.” 18 U.S.C. § 2339B(i).

In analyzing Petitioner’s constitutional claim, the Fourteenth Circuit rejected

her facial challenge under the strict scrutiny standard because that was already

decided by this Court in Holder v. Humanitarian Law Project, 561 U.S. 1 (2010). R.

at 21. In a pre-enforcement proceeding, plaintiffs claimed they wanted “to provide

support for the humanitarian and political activities” of two FTOs and that Section

2339B unconstitutionally prohibited them from doing so. Humanitarian Law Project,

35

561 U.S. at 10. Specifically, plaintiffs hoped to provide legal training and political

advocacy, which they argued to be protected under their right to speech and freedom

of association. Id. The Court discussed, at length, the as-applied challenge to the

statute’s ban on “material support” and found that it did not violate plaintiffs’

freedom of speech or right to association. Id. at 39. Because a facial attack is in other

words asserting that “no application of the statute would be constitutional”, and this

Court found Section 2339B to be valid five years ago, the Fourteenth Circuit was

correct in rejecting Petitioner’s claim. Sabri v. United States, 541 U.S. 600, 609

(2004).

Further, the Lower Court correctly declined to re-perform an analysis under

the “clear and present danger” test established in Brandenburg v. Ohio. R. at 21; 395

U.S. 444, 449 (1969). The leader of a Klu Klux Klan group was televised, during a

rally, saying “it’s possible that there might have to be some revengeance taken

[against the government]” and that African Americans “should be returned to Africa,

the Jew returned to Israel.” Brandenburg, 395 U.S. at 446-47. This Court made a

distinction between abstract advocacy and incitement to imminent illegal, harmful

conduct. Specifically, speech advocating “the use of force or of law violation” cannot

be proscribed unless: (1) the “advocacy is directed to inciting or producing imminent

lawless action,” and (2) the advocacy “is likely to incite or produce such action.” Id.

at 447. Most instructive is the Holder majority opinion, which does not even mention

Brandenburg and instead applies a heightened standard with much deference to the

Executive Branch. See generally Humanitarian Law Project, 561 U.S. 1 (2010).

36

While Brandenburg is considered the “seminal advocacy case”, and was not overruled

by Holder, when dealing with national terrorism and coordinated action with FTOs,

a different analysis applies. McCoy v. Stewart, 282 F.3d 626, 631 (9th Cir. 2002).

Particularly with the facts before this Court, we are analyzing the statute’s

applicability when a person provides direct, material support to an FTO rather than

political speech to the general public.

This Court should affirm the Fourteenth Circuit’s finding that Section 2339B,

forbidding anyone from “knowingly provid[ing] material support or resources to a

[FTO], or attempt[ing] or conspire[ing] to do so”, does not violate Petitioner’s

constitutional rights of speech and association, keeping in mind that “what the

AEDPA prohibits is the act of giving material support, there is no constitutional right

to facilitate terrorism by giving terrorists the weapons and explosives with which to

carry out their grisly missions.” Marjoire Heins, The Supreme Court and Political

Speech in the 21st Century: The Implications of Holder v. Humanitarian Law Project,

76 ALB. L. REV. 561, 9-10 (2013).

1. Petitioner’s Speech that is Criminalized under 18 U.S.C. § 2339B

Passes Constitutional Muster under a Strict Scrutiny Analysis.

The material support statute prohibits content-based speech, and therefore its

constitutionality must be reviewed under strict scrutiny. As applied to Petitioner,

the conduct covered under Section 2339B is her communication with Allen.

Specifically, she was convicted for attempting to meet with Allen to demonstrate and

provide him with a computer code that prints a perfect curve. R. at 11-12. This is

similar to the conduct covered in Holder v. Humanitarian Law Project, where the

37

Court noted “Plaintiffs want to speak to the [FTOs], and whether they may do so

under § 2339B depends on what they say.” Humanitarian Law Project, 561 U.S. at

27. Because this is a content-based regulation, the Court rejected applying

intermediate scrutiny and instead applied a heightened standard. Id. at 4.

To survive strict scrutiny, the statute must be “narrowly tailored to promote a

compelling Government interest.” United States v. Playboy Entm’t Grp., Inc., 529

U.S. 803, 813 (2000). Applying strict scrutiny, this Court should affirm the

Fourteenth Circuit’s finding that Section 2339B did not improperly violate

Petitioner’s First Amendment rights.

i. The Government Has a Compelling Interest in Thwarting

Terrorist Activities of Rogue Hackers Who Are a Part of

Designated Foreign Terrorist Organizations.

Protecting the United States from the threat of foreign terrorist organizations

is of the upmost importance for the Government. Indeed, “the government’s interest

in national security cannot be understated . . . it is beyond dispute that the

Government’s interest in combating terrorism is an urgent objective of the highest

order.” Al Haramain Islamic Foundation v. U.S. Dep’t of Treasury, 686 F.3d 965, 980

(9th Cir. 2012) (internal citations omitted). The September 11, 2001 attack on the

World Trade Center evince the present dangers of international terrorism. As

methods of communication evolve, so do the methods that terrorists use to organize

and effectuate an attack. For example, people are now able to connect with each

other, on a global scale, with just a click of a button and an internet connection.

Spreading one’s message, whether it be violent or peaceful, could not be simpler.

38

Courts have commented that “the legislature is understandably concerned about the

pervasive scope of the Internet and other electronic media.” Enoch v. State, 95 So.

3d 344, 357 (Fla. Dist. Ct. App. 1st Dist. 2012). The situation before this Court

presents yet another example of a channel that allows persons to communicate and

coordinate on a global scale without restriction, the Darknet. R. at 5. Even worse,

this powerful communication tool has introduced new, internet-based terrorist

organizations who use this connection to infiltrate and damage that which was once

private and protected. The U.S. Department of Defense has made public statements

regarding this new method of warfare and the need to stop the dangerous actions of

hackers and cybercrimes. Lisa Ferdinando, DoD Needs to Improve Cyber Culture,

CIO says, U.S. DoD, available at http://www.defense.gov/News-Article-

View/Article/626607/dod-needs-to-improve-cyber-culture-cio-says (“Cyber is a

relatively new warfare.”).

The United States has responded by committing to prevent terrorism with the

strategy of destroying terrorist plots and placing those involved accountable. Success

depends on the Department of Justice’s ability to use effective and preventative

measures made available in the Federal Criminal Code. The goal is not response, but

rather prevention. Section 2339B empowers the Department of Justice by enabling

it to intervene early in the criminal act continuum and thus stopping material

resources from reaching an FTO that places our security at risk. 18 U.S.C. § 2339B;

see also Counterterrorism White Paper, Counterterrorism Section, DEP’T OF JUSTICE,

at 14 (June 22, 2006), available at

39

http://trac.syr.edu/tracreports/terrorism/169/include/terrorism.whitepaper.pdf

(describing the material support statute as “one of the cornerstones of [the Dep’t of

Justice’s] prosecution efforts).

The strong presence of international terrorism and the usefulness of Section

2339B supports a finding that the government has a compelling interest in forbidding

material support to FTOs.

ii. 18 U.S.C. § 2339B is Narrowly Tailored to Achieve This End

Because the Conduct Proscribed is Directed to and Coordinated

with a Foreign Terrorist Organization and the Statute Only

Prohibits Specific, Material Support.

The second part to a strict scrutiny analysis requires a finding that the statute

is “narrowly tailored to promote [the] compelling Government interest.” United

States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000). The restriction on

speech will be found unconstitutional if “less restrictive alternatives would be at least

as effective in achieving the legitimate purpose that the statute was enacted to serve.”

Reno v. Aclu, 521 U.S. 844, 874 (1997). Section 2339B is narrowly tailored to achieve

the Government’s compelling interest in stopping the flow of material support to

cyber FTOs such as DM. First, it should be noted that not all conduct with an FTO

is prohibited. A person “may say anything they wish on any topic. They may speak

and write freely about [FTOs] . . . human rights and international law.”

Humanitarian Law Project, 561 U.S. at 25-26. Even membership is still allowed. Id.

at 18 (“Section 2339B does not criminalize mere membership in a designated foreign

terrorist organization.”). Instead, the material support statute specifically carved out

a narrow type of conduct that must be prohibited in order to stop the extremely

40

dangerous and unpredictable behavior of terrorists. To cut the lifeline of terrorist

organizations and put an end to terrorist attacks, the material support statute only

prohibits a person from providing material support.

Prohibiting Petitioner’s attempt is appropriate because it is conduct

coordinated with and directed to an FTO that would otherwise advance DM’s

terroristic activities, exactly what the Government wants to stop. In Humanitarian

Law Project, this Court found the statute to be narrowly tailored because it only

covered a very limited category of speech. Humanitarian Law Project, 561 U.S. at 31.

Specifically, the statute only applies to “material support coordinated with or under

the direction of a designated foreign terrorist organization.” Id. (emphasis added). A

person’s “independent advocacy that might be viewed as promoting the group's

legitimacy” is not within the statute’s grasp. Id. at 31-32.

The same reasoning can be applied to Petitioner’s conviction. If this Court

finds that the computer code was in fact a weapon, Petitioner attempted to give it

directly to DM. Thus, her actions are proscribed under the plain language of the

statute, wherein it forbids anyone from “provid[ing] material support . . . to a foreign

terrorist organization.” 18 U.S.C. § 2339B(a)(1) (emphasis added). On the other

hand, if this Court finds Petitioner’s attempt to consist of training or expert advice or

assistance, the conduct would have been in direct coordination with Allen, DM’s

leader. Like the Plaintiffs in Humanitarian Law Project, Petitioner would be

conversing directly with the FTO about the complex code she devised. In other words,

41

if she accomplished her attempt and spoke with Allen, nothing about that speech

would be performed independently.

The content of this prohibited speech cannot go without mention. The statute,

as applied, is prohibiting Petitioner’s ability to discuss with Allen the coding to a

modified curve. R. at 10. This curve can be used to create the perfect cylinder which

is the essential component of a homemade bomb. R. at 18. Petitioner cannot possibly

raise the argument that the Government lacks a sufficient interest in keeping such a

device out of the hands of a FTO. This speech can have a direct link to future terrorist

attacks. Further, narrowing the statute’s scope would put dangerous speech like this

out of its grasp. The end result would be to stop the Government’s ability to prevent

terrorists from obtaining such dangerous materials and thereafter using it for attacks

on Americans.

The other justifications that this Court used in Humanitarian Law Project to

uphold Section 2339B’s constitutionality also advances the Fourteenth Circuit’s

holding here. Most notably, “foreign terrorist organizations that engage in terrorist

activity are so tainted by their criminal conduct that any contribution to such an

organization facilitates that conduct.” AEDPA, Pub. L. No. 104-132, § 301(a)(7), 110

Stat. 1247 (1996); Humanitarian Law Project, 561 U.S. at 5. Prohibiting, even

peaceful, material support that is directed to, coordinated with, or under the direction

of an FTO is narrowly tailored to achieve the Government’s interest in stopping

terrorist attacks for two reasons: (1) FTO’s “do not maintain organizational firewalls

between social, political, and terrorist operations” and so support to any of those

42

branches would eventually be used to carry out a terrorist attack; and (2) material

support, in any form, would “undermine cooperative international efforts to prevent

terrorism and strain the United States' relationships with its allies.” Humanitarian

Law Project, 561 U.S. at 5.

The statute cannot be reworded to draw a distinction between peaceful and

illegal support because any form of material support would free up other resources

that could be used for violent, illegal ends. Id. at 30. Persuasive in this reasoning

was the fact that the FTOs in Humanitarian Law Project, in the past, have not

“respected the line between humanitarian and violent activities.” 561 U.S. at 31. The

same is true of DM. From the Record we know of two major instances where DM

crossed the line from humanitarian to violent and dangerous. On November 22, 2011,

Allen “released millions of documents he illegally stole from the NSA to the Darknet.”

R. at 5. For four months following that incident, DM hacked various websites and

subsequently exposed scandalous documents. Id. at 5-6. The second major act was

when DM hacked the WOM database and revealed the illegal acts of the game’s

developers. Id. at 8. The lower court also accurately applied Humanitarian Law

Project when it noted that by providing DM with the computer code, they now don’t

have to waste time and money getting it on their own. R. 23-24. Those resources can

now be used for terroristic activity. Id. There is no distinction for DM between

humanitarian and violent conduct, even peaceful speech must be prohibited if its

content provides material support. In other words, there is no possible way to apply

this statute in a less restrictive way.

43

The second line of reasoning used in Humanitarian Law Project also applies;

our relationship with at least one ally, Azran, has already been jeopardized due to

DM’s existence. When Azran granted Allen asylum, the Government immediately

began negotiations for his arrest and extradition to the United States. R. at 6. Those

talks immediately stopped, however, when Allen gave the Azranian government

“several documents showing the NSA had recorded private communications between

the Azranian Ambassador to the UN and the Azranian Prime Minister.” Id. Any

form of material support will breathe life into this FTO that has already damaged

our relationship to one ally overseas and will likely cause additional tension between

other countries.

The statute, as is, perfectly forbids that which the Government has a

substantial interest in stopping. Therefore, this Court should affirm the Fourteenth

Circuit’s holding that Petitioner’s constitutional right to speech was not violated.

2. An Individual’s Freedom to Associate is not Violated by 18 U.S.C. §

2339B Because the Statute Only Restricts One’s Ability to Provide

Material Support and Does Not Prohibit One’s Membership in an

FTO.

An individual’s right to association is not restricted by 18 U.S.C. § 2339B and

the lower court was correct in rejecting Petitioner’s claim. The right to association is

a separate and distinct component of the First Amendment. Roberts v. U.S. Jaycees,

468 U.S. 609, 622 (1984). The Constitution grants express protection for “the right of

the people peaceably to assemble.” U.S. CONST. amend. I. Therefore, a law cannot

impose liability on a person simply because of her association with another. NAACP

v. Claiborne Hardware Co., 458 U.S. 886, 918 (1982); see Scales v. Unites States, 367

44

U.S. 203, 229 (1961) (finding that a “blanket prohibition” on one’s ability to join a

group who has both legal and illegal aims violates the Constitution). Further, a law

that prohibits one’s ability to associate altogether will be ruled unconstitutional, lest

it pass strict scrutiny. In the context of 18 U.S.C. § 2339B, courts have consistently

found that an individual’s freedom of association is left unrestricted.

Of most importance, is the idea that the material support statute does not

criminalize association per se; instead, what is prohibited is “the act of giving

material support to designated foreign terrorist organizations.” United States v.

Marzook, 383 F. Supp. 2d 1056, 1057 (N.D. Ill. 2005) (emphasis added). In other

words, the material support statute does not prohibit one’s freedom to associate with

a FTO. United States v. Chandia, 514 F.3d 365 (4th Cir. 2008). A look at the plain

language of the statute further supports this contention. Unlawful conduct is

attached to “whoever knowingly provides material support or resources to a foreign

terrorist organization, or attempts or conspires to do so.” 18 U.S.C. § 2339B(a)(1)

(emphasis added). Nothing in this language indicates that mere membership is

forbidden or that “guilt by association” will occur. Instead, as the statute’s own title

proclaims, Congress is banning “Providing material support or resources to

designated foreign terrorist organizations.” 18 U.S.C. § 2339B.

The reasoning in Warsame and Assi demonstrate this principle as it relates to

the material support statute. United States v. Assi, 414 F. Supp. 2d 707 (E.D. Mich.

2006); United States v. Warsame, 537 F. Supp. 2d 1005 (D. Minn. 2008). In the

former, the indictment alleged a violation of 18 U.S.C. § 2339B because the defendant

45

participated in an Al Qaeda training camp and provided money to a key associate.

Warsame, 537 F. Supp. 2d at 1009. Upon rejecting the claim that the material

support statute restricted defendant’s freedom to associate, the court found that

Section “2339B does not prohibit membership in Al Qaeda, nor does it prohibit

persons from espousing or sympathizing with the views of Al Qaeda, however

unpopular those views might be.” Id. at 1014. In Assi, defendant challenged the

constitutionality of 18 U.S.C. § 2339B on the grounds that he was being criminally

charged for simply joining Hizballah without requiring the prosecution to

demonstrate his specific intent to further their illegal goals. Assi, 414 F. Supp. 2d at

711. The court rejected this argument, finding that his conviction was not based on

mere association with this group, which is allowed, but rather because of his attempt

to provide a laundry list of items that were very likely to be used for violent purposes.

Id. at 715-716 (including night vision goggles, global positioning satellite modules,

and a thermal imaging camera).

The Fourteenth Circuit was correct in rejecting Petitioner’s claim that 18

U.S.C. § 2339B violated her freedom of association. R. at 24. Petitioner’s conviction

had nothing to do with her alleged aspiration to be a “White Hat Hacker” who

“become[s] a force for good in the universe.” R. at 11. What changed Petitioner’s fate

is the facts that we know to be true. She, with the help of others, developed a modified

curve, computer code. R. at 8-9. A person can install this code into their 3D printer

and print a perfect cylinder. Id. at 9, 12 (Petitioner event brought one to show Allen

during their meeting). With one stop at a local convenience store, that individual has

46

the proper means to create a bomb. Id. at 18. To make matters worse, she attempted

to give this information to the only known leader of a designated FTO. Id. at 5. Just

like in Assi, Petitioner was prosecuted because she attempted to provide material

support to a dangerous organization, likely leading to violence. The indictment, and

subsequent conviction, did not relate to her potential membership with DM.

If Petitioner had, instead of attempting to demonstrate and show this

dangerous computer code, simply made plans to meet with Allen and seek advice, the

material support statute would not have been implicated. Again, the statute does not

inflict “guilt by association,” prosecuting persons for mere membership in a

designated FTO. See Claiborne Hardware Co., 458 U.S. at 920. Instead, 18 U.S.C. §

2339B forbids anyone from “provid[ing] material support.” 18 U.S.C. § 2339B(a)(1)

(emphasis added). For these reasons, this Court should find that Petitioner’s freedom

to associate was not restricted by the material support statute.

C. There is Sufficient Evidence to Demonstrate That Petitioner Intended to Give

Support to Dixie Millions Because She Took Substantial Steps to Track the

Coordinates of Clive Allen, Made Public Statements Supporting His Actions,

and Planned to Show Him a Dangerous Computer Code.

Petitioner’s final claim is that there was insufficient evidence to convict her

under 18 U.S.C § 2339B. R. at 21. The defendant asserting a sufficiency challenge

carries a heavy burden. United States v. Farhane, 634 F.3d 127, 144 (2d Cir. 2011).

The court “must consider the totality of the evidence in the light most favorable to

the prosecution.” Id. The conviction will be upheld if “any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Jackson

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v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). Applying these

principles, Petitioner’s sufficiency challenge should be denied.

The material support statute convicts not only persons who succeed in

providing material support to an FTO, but also those who “attempt[] or conspire[] to

do so.” 18 U.S.C. § 2339B(a)(1). In addition, to violate the material support statute,

one must know that the organization is an FTO, or that they conduct terrorist

activity, or participate in terrorism. Id. Because Petitioner made affirmative

statements supporting DM, and took aggressive, substantial steps towards meeting

Allen to demonstrate and show the computer code, there was sufficient evidence to

prosecute her under attempt. Further, there was sufficient evidence to find that she

possessed the requisite knowledge needed for a violation of the statute because she

actively searched DM and Allen on Darknet and discussed the FTO with Ascot at

length.

1. Petitioner’s Actions Constitute Attempt to Violate the Material

Support Statute Because She Intended to Provide Material Support

to DM and Took Substantial Steps Towards Accomplishing That Goal.

There was sufficient evidence to prosecute Petitioner under attempt to provide

material support to DM. A proper conviction under attempt calls for proof that the

accused “(a) had the intent to commit the object crime and (b) engaged in conduct

amounting to a substantial step towards its commission.” United States v Farhane,

634 F.3d 127, 130 (2d Cir. 2011). The Record demonstrates Petitioner satisfies both

of the prongs necessary for an attempt to provide material support; she not only

openly supported DM and their conduct, but took substantial steps towards providing

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the organization’s leader with the wherewithal to create and disseminate a critical

component of a bomb.

The “intent to commit the object crime” should not be confused with an intent

to further terrorism, rather the focus is on one’s intent to provide material support to

an FTO. Farhane, 634 F.3d. at 130. In Farhane, the court found sufficient proof of

defendant’s intent to provide material support to Al-Qaeda when he swore allegiance

to the organization, made direct statements about his support for their beliefs and

conduct, and promised to provide medical services for the FTO. Farhane, 634 F.3d at

147-79; See also United States v. Mehanna, 735 F.3d 32, 44 (1st Cir. 2013) (defendant

expressed his interest in participating in jihad training camp to assist in battle

against U.S. in Iraq). In Augustin, the court looked to the “totality of the evidence”

and held that it was reasonable for a jury to conclude - due to his participation in an

oath ceremony, taking photographs and videos of federal buildings subject to a

planned attack, and conversations proclaiming support for Al Qaeda - that defendant

intended to serve Al Qaeda. United States v. Augustin, 661 F.3d 1105, 1119 (11th Cir.

2011). Similarly, Petitioner, on several occasions, professed her support for DM and

their dangerous behavior. The Record describes her belief that “Mr. Allen [is] an

excellent role model of the ultimate ‘White Hat Hacker.’” R. at 11. Her fondness

transforms into a desire to imitate Allen. Id. While she claims her true intent was

to meet Allen, impress him, and receive his advice, Petitioner’s actions demonstrate

an intent to do much more. Id. at 12. For example, FBI agents at trial describe her

activities on Darknet to indicate that she not only wanted to meet DM’s Allen, but

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other hacker groups as well. Id. at 17. Further, her Twitter account history reflects

several articles she posted supporting DM. Id. at 18. These facts, taken together,

demonstrate an intent to provide support to DM.

There is also sufficient evidence to prove Petitioner took a substantial step in

her attempt to provide material support to DM. To take a “substantial step” requires

“more than mere preparation, yet may be less than the last act necessary before the

actual commission of the substantive crime.” Farhane, 634 F.3d at 130. When

analyzing the second element, the step also “need not be planned to culminate in

actual terrorist harm, but only in support – even benign support – for an organization

committed to such harm.” Id. at 148 (referencing Holder v. Humanitarian Law

Project, 561 U.S. 1, 5 (2010)). The court in Mehanna found that a substantial step

was taken in defendant’s attempt to provide material support to an FTO when a

coconspirator testified of his intent to be trained at a terrorist training camp and he

actually traveled to Yemen to find the secret establishment. Mehanna, 735 F.3d at

45-46. The same was found in Kaziu. United States v. Kaziu, 559 Fed. Appx. 32, 37

(2d Cir. 2014) (“The evidence of Kaziu’s travels overseas with the intended object of

joining Al-Shabaab in its war against the Somali government was sufficient to. . . find

the substantial step necessary for attempt.”). Petitioner took substantial and

extreme measures to meet Allen and provide him with material support. First, she

scoured the internet and Darknet to track where in Azran he was spotted. R. at 11-

12. Then, she accumulated an exhaustive description of his attire at each

appearance. Id. at 12 (including “everything from clothing to wigs.”) From this

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information, she “deduced a pattern to Mr. Allen’s activities” to predict where he

would be on June 5, 2012 so she can meet him in person. Id. In her luggage, she

packed the dangerous computer code, a sample of what the code can produce, and

even a portrait of Allen that she created from one of her games. Id. Finally, she made

it as far as halfway to the airport before she was stopped by the police. R. at 14-15.

These activities constitute a substantial step towards providing material support

towards DM. Absent the flight and her trip to the café, where she predicted him to

be on June 5, there was nothing else she needed to do to commit the offense.

Because the Record reflects Petitioner’s intent to provide material support to

DM and proactive, substantial steps to accomplish that end, the lower court was

correct in rejecting her claim of insufficient evidence for a conviction under 18 U.S.C.

§ 2339B.

2. Petitioner Satisfied 18 U.S.C. § 2339B’s Knowledge Requirement

Because She Knew DM Was a Designated Foreign Terrorist

Organization.

As part of proving Petitioner’s guilt for attempting to provide material support

to DM, the Government adequately fulfilled the knowledge requirement under 18

U.S.C. § 2339B. Specifically, the material support statute requires that the person

“must have knowledge that the organization is a designated terrorist organization . .

. has engaged or engages in terrorist activity . . ., or that the organization has engaged

or engages in terrorism.” 18 U.S.C. § 2339B(a)(1); Holder v. Humanitarian Law

Project, 561 U.S. 1, 16-17 (2010) (“Congress plainly spoke to the necessary mental

state for a violation of § 2339B, and it chose knowledge about the organization's

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connection to terrorism, not specific intent to further the organization's terrorist

activities.”). The Record is replete with facts demonstrating Petitioner’s awareness

of DM’s designation as an FTO and Clive Allen’s integral participation with the

organization.

On April 26, 2012, while Petitioner and Ascot were working on the code for the

perfect curve, they had an explicit conversation about DM and Clive Allen. R. at 7-8.

The couple discussed DM’s most recent hack into the WOM database, revealing the

illegal behavior of the game developers. Id. at 8. Ascot expressed her admiration of

Allen and how she considered the FTO to be “White Hat Hackers.” Id. Later, she

developed an active presence on Darnket and began researching Allen on her own.

Id. at 11. Finally, Petitioner, knowing that Allen has taken refuge in Azran, “deduced

a pattern to Mr. Allen’s activities” in an effort to meet the “Millions.” R. at 11-12. At

trial, she even confessed that “it would be ‘pretty cool’ if Ascot was Dixie because that

meant that [I] would have been mentored by one of the world’s ‘elite White Hat

Hackers.’” Id. at 17.

Because the record clearly demonstrates that Petitioner knew DM was a

designated FTO and that they had engaged in at least one terrorist activity, the

evidence was sufficient to satisfy the knowledge requirement under the material

support statute.

CONCLUSION

For the foregoing reasons, Respondent respectfully requests that this Court

affirm the United States Court of Appeals for the Fourteenth Circuit decision, and

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hold that (1) the Rushcamp hybrid standard of intent is appropriate for charges

brought under 26 U.S.C. § 5845(f)(3), thus finding that the Petitioner was correctly

charged and convicted under this statute, and (2) that a person can be, and the

Petitioner was, appropriately convicted under 18 U.S.C. § 2339B for attempting to

meet a FTO leader to provide and demonstrate a potentially dangerous computer

code.

Respectfully Submitted,

Team 17

Attorneys for Respondent