16-819-cr
United States v. Le
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2017
No. 16‐819‐cr
UNITED STATES OF AMERICA,
Appellee,
v.
CHENG LE, AKA WILLIAM LEE, AKA DANIEL CHUNN,
AKA STEVEN PHANATASIO,
Defendant‐Appellant.
On Appeal from the United States District Court
for the Southern District of New York
ARGUED: MAY 14, 2018
DECIDED: AUGUST 27, 2018
Before: SACK and RAGGI, Circuit Judges, GARDEPHE, District Judge.
Judge Paul G. Gardephe, of the United States District Court for the Southern District of
New York, sitting by designation.
____________
On appeal from a judgment of the United States District Court
for the Southern District of New York (Nathan, J.), defendant, who
ordered the lethal toxin ricin over the internet for the stated purpose
of facilitating murder, challenges his conviction under the Biological
Weapons Anti‐Terrorism Act of 1989 (the “Biological Weapons Act”),
Pub. L. No. 101–298, 104 Stat. 201 (1990) (codified as amended at
18 U.S.C. §§ 175–178 (2002)), and related federal statutes, arguing that
principles of federalism preclude construing the Biological Weapons
Act to reach “purely local” criminal conduct such as common law
murder. Bond v. United States, 134 S. Ct. 2077, 2083 (2014). Defendant
further challenges the constitutionality of the Biological Weapons Act
both on its face and as applied.
AFFIRMED.
ANDREW D. BEATY, Assistant United States
Attorney (Ilan Graff, Won S. Shin, Assistant
United States Attorneys, on the brief), for
Geoffrey S. Berman, United States Attorney
for the Southern District of New York,
New York, New York, for Appellee.
TINA SCHNEIDER, Law Office of Tina
Schneider, Portland, Maine, for Defendant‐
Appellant.
2
REENA RAGGI, Circuit Judge:
Defendant Cheng Le stands convicted after a jury trial in the
United States District Court for the Southern District of New York
(Alison J. Nathan, Judge) of three crimes: (1) attempting to acquire the
lethal biological toxin ricin in violation of the Biological Weapons
Anti‐Terrorism Act of 1989 (the “Biological Weapons Act”), Pub. L.
No. 101–298, 104 Stat. 201 (1990) (codified as amended at 18 U.S.C.
§§ 175–178 (2002)); (2) using a false name to conduct the
aforementioned unlawful activity by means of the United States
Postal Service in violation of 18 U.S.C. § 1342; and (3) aggravated
identity theft in connection with his Biological Weapons Act crime in
violation of 18 U.S.C. §§ 1028A and 2. Le here appeals his conviction,
arguing through counsel that (1) principles of federalism preclude
construing the Biological Weapons Act to reach his criminal conduct,
which was intended only to facilitate “local” murder, Bond v. United
States, 134 S. Ct. 2077, 2083 (2014); and (2) in any event, the statute is
unconstitutional both on its face and as applied in this case. In a
separate pro se submission, Le also complains of ineffective assistance
by trial counsel.
For reasons explained herein, we conclude that Le’s counseled
arguments fail on the merits. Le’s pro se ineffective assistance claim is
more properly the subject of collateral review and, thus, we decline to
3
address it on direct appeal. Accordingly, we affirm the judgment of
conviction on all counts.1
BACKGROUND
I. The Prosecution Case
A. Le Orders Ricin on the Dark Net
Over the course of several weeks in December 2014, defendant
Le, a self‐styled broker of luxury goods between the United States and
China, repeatedly accessed a “Dark Net” marketplace in an attempt
to acquire ricin, a biological toxin derived from the seeds of the castor
oil plant. Ricin is lethal in even small doses when ingested, injected,
or simply inhaled. It has no known antidote and is generally
undetectable in autopsies.
The “Dark Net” is an area of the internet accessible only
through anonymization software that obscures users’ internet
protocol addresses and filters their traffic through a series of
worldwide nodes. Such software makes it difficult, even for law
enforcement officials, to identify Dark Net users or their locations.
Dark Net users adopt monikers to interact anonymously with one
another in various formats, including online marketplaces. Dark Net
marketplaces operate similarly to ordinary internet marketplaces
1 Insofar as Le raises still new equal protection and sufficiency challenges to conviction in
a reply brief filed after the government responded to his initial submission, we deem those
arguments abandoned and do not address them here. See United States v. George, 779 F.3d
113, 119 (2d Cir. 2015). Even were we to do so, however, we would conclude that they are
meritless.
4
(e.g., eBay), in that vendors list items for sale and exchange messages
with potential buyers to negotiate and effectuate transactions. In
Dark Net marketplaces, however, communications between vendors
and buyers are usually encrypted, and transactions overwhelmingly
involve contraband.
Le’s first Dark Net communication about ricin occurred on
December 3, 2014, when, using the moniker “WhenInDoubt,” he
initiated contact with a vendor operating under the moniker
“Dark_Mart” and asked: “Any ways[,] this might sound blunt but do
you sell ricin?” Trial Tr. at 51–52. Le explained that he had seen
several Dark Net listings suggesting that Dark_Mart had ricin in
stock. What Le did not then know was that Dark_Mart was an online
identity assumed by Mark Walker, an online covert employee of the
Federal Bureau of Investigation.
Between December 3 and 22, 2014, Le exchanged more than two
dozen encrypted messages with Walker in which Le held himself out
as a broker acting on behalf of persons interested in acquiring ricin.
Le stated that he was seeking a source of “good quality” ricin “ASAP”
and that he “already had buyers lining up” for the product. Id. at 55.
Le stated that “three to five lethal doses would be enough,” adding
that a client might want Walker’s “professional opinion” on “how
death would end up looking . . . under forensic examination.” Id. at
59. Le would subsequently describe the client’s intended victim as a
middle‐aged, 200‐pound male.
5
Le specifically solicited Walker’s advice about administering
ricin both by injection and ingestion. As to the former, Le queried
whether “kill[ing]” a target with a ricin injection while he was
hospitalized would avoid suspicion because “hospitalized people
already have needles in them.” Id. at 61–62. Later, after confirming
with Walker that ricin had no antidote and did not appear in
autopsies, Le described a plan for ricin’s ingestion through
“capsules,” “pills,” or “tablets” “disguise[d] as medicine.” Id. at 67.
A single ricin pill could be added to “a bottle of normal pills” that
looked “identical,” so that when “the target takes the medicine every
day, sooner or later he’d ingest that poisonous pill and die.” Id. Thus,
Le observed, “[e]ven if there is a murder investigation, they won’t
find any more toxin”; the plan was “100 percent risk‐free.” Id.
Le told Walker that “simple and easy death pills” would
“become best sellers.” Id. Indeed, he declared that “it is death itself
we’re selling here, and the more risk‐free, the more efficient we can
make it, the better.” Id. at 68. Toward that end, Le said he would be
“trying out new” ricin delivery “methods in the future.” Id.
B. Le Orders Ricin in the Name Daniel Chunn and
Arranges for Delivery by Mail
Following these exchanges, on December 18, 2014, Le—now
using the moniker “fnufnu”—placed an order with Walker for “one
bottle of [vitamin] pills with one poisonous pill in there.” Id. at 74.2
2 “WhenInDoubt” was the moniker for Le’s vendor account, and the Dark Net marketplace
through which he and Walker were dealing did not allow vendor accounts to purchase
6
Le instructed Walker to add an ultraviolet chemical to the ricin pill so
that it could be identified by blacklight. Le also ordered some “extra
loose powder/liquid ricin”—“[e]nough to poison some small animals
will be good”—so that he could “test something out.” Id. Le agreed
to pay for the order with the equivalent of $300 in Bitcoin,3 and
directed Walker to make delivery by mail addressed to “Daniel
Chunn” at a Manhattan location.
Daniel Chunn is, in fact, the name of a Texas resident who had
lost his wallet in March 2013 and reported identity theft to the
authorities in the summer of that year. Chunn had never been in
New York and had no familiarity with Le, the Dark Net, or the
monikers “WhenInDoubt” and “fnufnu.”
C. The Controlled Delivery to Le
Investigation revealed that the Manhattan delivery address Le
provided to Walker belonged to a UPS store, and that Le picked up
mail from a post office box at that location. After surveilling Le
visiting the UPS store, FBI agents prepared for a controlled delivery
of the December 18 ricin order to that location. The package, which
was sent via the United States Postal Service, contained a vitamin
items from other vendor accounts. Thus, Le placed this order through his buyer account
with the moniker “fnufnu.”
3 Bitcoin is a digital currency that is decentralized and pseudonymous, permitting online
vendors and customers to maintain their anonymity by transferring the currency directly
between their Bitcoin accounts, which contain no identifying information about either
user. See United States v. Ulbricht, 858 F.3d 71, 83 n.3 (2d Cir. 2017).
7
bottle that substituted a sham ricin pill for the ordered toxin, as well
as a vial of sham ricin powder hidden inside a flashlight.
On December 23, 2014, FBI agents watched Le enter the UPS
store. As observed on other occasions, he was wearing latex gloves.
At the store, Le retrieved the controlled delivery package, opened it,
discarded the shipping material, and carried the contents back to his
nearby apartment. Soon after Le returned to his apartment, FBI
agents entered the premises pursuant to a search warrant and
arrested Le. In the ensuing search of Le’s apartment, agents recovered
the controlled‐delivery pill bottle—now opened—containing the
sham ricin pill, as well as the flashlight containing the vial of sham
ricin powder. They also seized a quantity of castor seeds that had not
been part of the delivery. The agents took photographs of Le’s laptop
computer, which showed that the device was then logged into Le’s
personal email account as well as to the Dark Net accounts for
WhenInDoubt and fnufnu.
II. The Defense Case
Testifying in his own defense, Le denied any knowledge that
ricin was being sent to him, and stated that a shipping associate,
whom he identified as “Michael Lin,” had used the laptop computer
photographed by agents at the time of Le’s arrest.
III. Conviction
On August 27, 2015, a jury found Le guilty on all three counts
charged. On March 8, 2016, the district court sentenced Le to a total
8
of 192 months’ (i.e., 16 years’) incarceration to be followed by five
years’ supervised release, and imposed a $300 special assessment.
This timely appeal followed.
DISCUSSION
I. Biological Weapons Act Challenges
A. Standard of Review
Le argues that his conviction must be vacated because
(1) principles of federalism do not permit the Biological Weapons Act
to be construed to reach his “purely local” criminal conduct, Bond v.
United States, 134 S. Ct. at 2083; and (2) in any event, that statute is
unconstitutional both on its face and as applied.
Le acknowledges that he did not raise these arguments before
the district court. Thus, we review only for plain error. See Fed. R.
Crim. P. 52(b); United States v. Rybicki, 354 F.3d 124, 128–29 (2d Cir.
2003) (en banc) (applying plain error review to constitutional
vagueness challenge); United States v. Santiago, 238 F.3d 213, 215 (2d
Cir. 2001) (applying plain error review to claim that criminal statute
exceeded Congress’s Commerce Clause authority). Le cannot avoid
plain error review by recasting his statutory challenges as a
jurisdictional argument that the indictment in his case failed to state
a crime. See United States v. Yousef, 750 F.3d 254, 260 (2d Cir. 2014)
(“[A]ppeals that call into question the government’s authority to
bring a prosecution or congressional authority to pass the statute in
question are generally not jurisdictional.” (internal quotation marks
9
omitted)); United States v. Rubin, 743 F.3d 31, 38–39 (2d Cir. 2014)
(explaining that properly to invoke subject‐matter jurisdiction,
indictment “need only allege that a defendant committed a federal
criminal offense at a stated time and place in terms plainly tracking
the language of the relevant statute”).
To demonstrate plain error, Le must show (1) error that (2) is
clear or obvious under current law; (3) affects his substantial rights,
which generally means affects the outcome of the district court
proceedings; and (4) seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See United States v. Marcus, 560
U.S. 258, 262 (2010); accord United States v. Boyland, 862 F.3d 279, 288–
89 (2d Cir. 2017). He fails to do so here.
B. The Biological Weapons Act
To explain, we begin with a brief discussion of the challenged
statute. In enacting the Biological Weapons Act, Congress identified
two purposes: “(1) [to] implement the Biological Weapons
Convention, an international agreement unanimously ratified by the
United States Senate in 1974 and signed by more than 100 other
nations”; and “(2) [to] protect the United States against the threat of
biological terrorism.” 18 U.S.C. § 175 note (Declaration of Purpose
and Intent); see Convention on the Prohibition of the Development,
Production and Stockpiling of Bacteriological (Biological) and Toxic
Weapons and on Their Destruction (the “Biological Weapons
Convention”), opened for signature Apr. 10, 1972, 26 U.S.T. 583, 1015
U.N.T.S. 163 (entered into force Mar. 26, 1975). The Convention aims
10
to “exclude completely the possibility” of biological agents and toxins
“being used as weapons” and, toward that end, requires, inter alia,
that each State signatory, “in accordance with its constitutional
processes,” implement “any necessary measures” to prohibit the
proliferation of such weapons within its territorial jurisdiction.
Biological Weapons Convention, supra, 1015 U.N.T.S. at 164–67.
In furtherance of its stated statutory purposes, the Biological
Weapons Act criminalizes certain conduct. We highlight the
language most pertinent to Le’s conviction.
Whoever knowingly develops, produces, stockpiles,
transfers, acquires, retains, or possesses any biological
agent, toxin, or delivery system for use as a weapon, or
knowingly assists a foreign state or any organization to
do so, or attempts, threatens, or conspires to do the same,
shall be fined under this title or imprisoned for life or any term
of years, or both. There is extraterritorial Federal
jurisdiction over an offense under this section committed
by or against a national of the United States.
18 U.S.C. § 175(a) (emphasis added). The Act defines biological
“toxin” to mean,
the toxic material or product of plants, animals,
microorganisms (including, but not limited to, bacteria,
viruses, fungi, rickettsiae or protozoa), or infectious
substances, or a recombinant or synthesized molecule,
whatever their origin and method of production,
[including]
11
(A) any poisonous substance or biological product
that may be engineered as a result of
biotechnology produced by a living organism; or
(B) any poisonous isomer or biological product,
homolog, or derivative of such a substance[.]
Id. § 178(2). Le cannot dispute that ricin, a highly lethal toxic protein
naturally found in and extracted from the seeds of the castor oil plant,
clearly falls within this definition. See, e.g., United States v. Levenderis,
806 F.3d 390, 395 (6th Cir. 2015) (affirming § 175(a) conviction for
possession of ricin).
The statute defines the phrase “for use as a weapon” to
“include[] the development, production, transfer, acquisition,
retention, or possession of any biological agent, toxin, or delivery
system for other than prophylactic, protective, bona fide research, or
other peaceful purposes.” 18 U.S.C. § 175(c). In effect, this definition
presumes that a biological toxin is “for use as a weapon” unless its
use falls within one of the specified permitted purposes. Le does not
dispute that his attempt to acquire ricin in order to “sell[]” “death” to
clients intent on murder falls within this statutory definition. Trial Tr.
at 67–68.
C. The Federalism Challenge
Le nevertheless argues that principles of federalism do not
permit the statute to support his conviction here because his
attempted acquisition of ricin was in furtherance of a single murder,
effectively a common law crime entrusted by federalism to local law
12
enforcement. Le maintains that this conclusion is compelled by Bond
v. United States, 134 S. Ct. 2077. That case does not, in fact, support
Le’s federalism challenge.
1. Bond v. United States
As the Supreme Court itself recognized, Bond is an “unusual,”
even “curious,” case. Id. at 2090, 2092–93. At issue there was a
conviction under the Chemical Weapons Convention Implementation
Act of 1998 (the “Chemical Weapons Act”). See 18 U.S.C. § 229(a)(1).4
Like the Biological Weapons Act, that statute proscribes all uses of
chemical weapons not expressly permitted. Thus, the statute
criminalizes the knowing “use [of] . . . any chemical weapon,” except
for “peaceful purpose[s] related to . . . industrial, agricultural,
research, medical, . . . pharmaceutical[,] . . . or other activity.” Id.
§§ 229(a)(1), 229F(7). It defines a “chemical weapon” as “[a] toxic
chemical and its precursors,” id. § 229F(1), and it defines “toxic
chemical” as “any chemical which through its chemical action on life
processes can cause death, temporary incapacitation or permanent
harm to humans or animals,” id. § 229F(8)(A), except when used for a
“peaceful purpose” related to “industrial, agricultural, research,
medical, . . . pharmaceutical[,] . . . or other activity,” id. § 229F(1), (7).
The Chemical Weapons Act implements the Convention on the Prohibition of the
4
Development, Production, Stockpiling, and Use of Chemical Weapons and on Their
Destruction (the “Chemical Weapons Convention”), opened for signature Jan. 13, 1993, S.
Treaty Doc. No. 103‐21, 1974 U.N.T.S. 317 (entered into force Apr. 29, 1997), which Bond
describes as “a treaty about chemical warfare and terrorism,” 134 S. Ct. at 2090.
13
While most prosecutions under the Chemical Weapons Act
have concerned “terrorist plots or the possession of extremely
dangerous substances with the potential to cause severe harm to
many people,” Bond v. United States, 134 S. Ct. at 2092 (collecting
cases), in Bond, the government applied it to “a purely local crime: an
amateur attempt by a jilted wife to injure her husband’s lover” by
putting chemical irritants on the victim’s door knob, car door, and
mail box in the hope of inducing a rash, id. at 2083, 2085 (noting that
victim sustained only minor burn because substances were easily
visible and, therefore, largely avoided).
In holding that the Chemical Weapons Act did not reach such
a “common law assault,” the Supreme Court ruled that the statute
“must be read consistent with principles of federalism inherent in our
constitutional structure,” specifically, the principle “leaving the
prosecution of purely local crimes to the States” in the absence of a
“clear indication” of contrary congressional intent. Id. at 2087–88,
2090. The Court did not locate such a clear intent in the Chemical
Weapons Act. Specifically, it did not locate that intent in the statute’s
expansive definition of “chemical weapon.” To the contrary, it
identified “ambiguity” in the term because the definition’s
“improbably broad reach” would encompass “everything from the
detergent under the kitchen sink to the stain remover in the laundry
room” to “a few drops of vinegar” in a goldfish tank, substances that
“no one would ordinarily describe . . . as ‘chemical weapons.’” Id. at
2090–91.
14
Holding that the ambiguity should be resolved by reference to
“basic principles of federalism,” the Supreme Court considered the
“natural meaning of ‘chemical weapon,’” which “takes account of
both the particular chemicals that the defendant used and the
circumstances in which she used them.” Id. at 2090. Following this
approach, the Court concluded that “the chemicals in this case,”
“[w]hen used in the manner” at issue, “are not of the sort that an
ordinary person would associate with instruments of chemical
warfare.” Id. First, they bore “little resemblance to the deadly toxins”
that were the focus of the statute’s animating treaty. Id. Furthermore,
the Court observed that “the use of something as a ‘weapon’ typically
connotes ‘[a]n instrument of offensive or defensive combat,’” and “no
speaker in natural parlance would describe Bond’s feud‐driven act of
spreading irritating chemicals on [a] door knob and mailbox as
‘combat.’” Id. (quoting Webster’s Third New International Dictionary
2589 (2002)). Accordingly, the Court concluded that the Chemical
Weapons Act could not be construed to signal Congress’s intent to
reach Bond’s purely local assault crime.
In so ruling, the Court was careful to note that an “exceptional
convergence of factors” compelled its decision. Id. at 2093. It
cautioned that “nothing” in Bond should be read to “disrupt” federal
authority to enforce federal criminal laws “against assassination,
terrorism, [or] acts with the potential to cause mass suffering.” Id. at
2092. Such criminal activity had “not traditionally been left
predominantly to the States” so as to raise federalism concerns about
Congress’s intended reach. Id.
15
2. Le Does Not Stand Convicted of Purely Local
Conduct so as To Require Construction of the
Biological Weapons Act According to Principles
of Federalism
Le argues that the statutory definition of a “biological . . . toxin
. . . for use as a weapon” (“biological weapon”) in the Biological
Weapons Act, like the statutory definition of a “chemical weapon” in
the Chemical Weapons Act, is so broad that it can reach purely local
criminal conduct. Thus, he maintains that here, as in Bond, federalism
requires a clear statutory indication that Congress meant federal law
to reach such conduct before it can be so applied. Because there is no
such indication in the Biological Weapons Act, Le submits that his
federal conviction cannot stand.
The argument fails at the first step of analysis. Even if the
statutory definition of “biological weapon” might be construed to
reach a purely local crime in some cases, thereby raising federalism
concerns akin to those in Bond, Le’s conduct was no local crime. Le
argues that his conduct only facilitated common law murder. But that
does not aptly characterize the conduct for which he stands convicted.
What Le did to violate the Biological Weapons Act was to use the
internet, routinely recognized by this court as an instrumentality of
interstate commerce, see United States v. Konn, 634 F. App’x 818, 821
(2d Cir. 2015) (summary order); United States v. Anson, 304 F. App’x 1,
5 (2d Cir. 2008) (summary order) (collecting cases from sister circuits),
to locate, negotiate for, and purchase ricin on the black market. Then,
when he had done so, Le fraudulently used another interstate
16
instrumentality, the United States Postal Service, as the means to
receive the lethal toxin.
Maintaining the integrity of the Postal Service is certainly a
“matter of particular federal concern.” Smith v. United States, 431 U.S.
291, 304 n.10 (1977). The Constitution itself grants Congress the
power to enact all laws it deems necessary and proper to execute its
power to establish post offices, a power that extends to criminal
regulations. See U.S. Const. art. I, § 8, cl. 7 & 18; U.S. Postal Service v.
Brennan, 574 F.2d 712, 714 (2d Cir. 1978); see also United States v.
Pannell, 321 F. App’x 51, 53–54 (2d Cir. 2009) (summary order)
(“‘Congress’s postal power carrie[s] with it the ability to impose
criminal penalties to protect federal interests advanced by that
power.’” (quoting United States v. Lipscomb, 299 F.3d 303, 324 (5th Cir.
2002))). The “nationwide character of the postal system argues in
favor of . . . national[] uniform[ity]” in its regulation, Smith v. United
States, 431 U.S. at 304 n.10, so as to warrant some “limits [to] state
regulatory power in relation to the federal mail service,” Roth v.
United States, 354 U.S. 476, 494 (1957) (internal quotation marks
omitted). Thus, Le’s attempted acquisition of ricin through the
fraudulent use of the Postal Service is no purely local crime.
Regulating the instrumentalities of interstate commerce is also
a matter of strong federal interest, see United States v. Lopez, 514 U.S.
549, 558 (1995) (identifying “instrumentalities of interstate
commerce” as one of three “broad” categories of activity subject to
federal regulation), one not traditionally left principally to the States,
see United Haulers Ass’n v. Oneida‐Herkimer Solid Waste Mgmt. Auth.,
17
550 U.S. 330, 338 (2007) (explaining that courts have long interpreted
Commerce Clause as “implicit restraint on state authority, even in the
absence of a conflicting federal statute”). The conclusion applies with
particular force to the internet. See United States v. Hornaday, 392 F.3d
1306, 1311 (11th Cir. 2004) (recognizing federal government’s
authority to prohibit harmful internet activity even having “primarily
intrastate impact”5). As this court has observed the internet “does not
recognize geographic boundaries,” thus, a state cannot easily regulate
its activities “without projecting its legislation into other States,”
raising constitutional concerns under the dormant Commerce Clause.
American Booksellers Found. v. Dean, 342 F.3d 96, 103 (2d Cir. 2003)
(brackets and internal quotation marks omitted). This is not to
suggest that state laws can never apply to internet transactions. See
SPGGC, LLC v. Blumenthal, 505 F.3d 183, 195 (2d Cir. 2007) (rejecting
dormant Commerce Clause challenge to state consumer protection
law where vendor had near‐perfect means of distinguishing between
online consumers who resided within state and those who did not).
It is simply to recognize that crimes conducted over the internet—
such as Le’s attempt to acquire ricin on the Dark Net—cannot
reasonably be viewed as purely local matters.6
Le’s observation that the Bond defendant also acquired
proscribed materials on the internet and through the mail, see Bond v.
5 It is by no means evident that the impact of Le’s ricin trafficking would be intrastate. Le
testified that the clients for his reshipping services are in China.
6 Insofar as Le argues that Congress exceeded its Commerce Clause authority in enacting
the Biological Weapons Act, we explain in Section I.D, infra, why that argument fails on
the merits.
18
United States, 134 S. Ct. at 2085, warrants no different conclusion. The
Bond defendant was not convicted for acquisition, as Le is here, but
only for possession and use of such materials. There is an undoubted
federal interest in the use of interstate instrumentalities to acquire the
means to commit murder, even if the murder itself is purely local.
Thus, Le’s acquisition of ricin through instrumentalities of
interstate commerce is not akin to the purely local assault in Bond and
presents no need for us to construe the Biological Weapons Act
according to principles of federalism.
3. Le’s Conduct Falls Within the Biological
Weapons Act Even When Construed According
to Principles of Federalism
In any event, applying federalism principles of construction to
the Biological Weapons Act affords Le no relief from conviction.
Application of such principles in Bond resulted in the Supreme Court
construing the term “chemical weapon” according to its “natural
meaning” rather than its “improbably broad . . . statutory definition.”
Bond v. United States, 134 S. Ct. at 2090. Bond identified the natural
meaning of “chemical weapon” by reference to two factors: (1) the
type of chemicals in the case, and (2) the circumstances in which the
defendant used them. See id. It concluded that neither factor reached
the conduct at issue in that case. No such conclusion is warranted
here.
The type of biological toxin at issue, ricin, is “extremely
deadly,” United States v. Baker, 98 F.3d 330, 333 (8th Cir. 1996), even in
19
extremely small doses, see Trial Tr. at 130–31 (defining lethal dose of
ricin as three to five micrograms per kilogram of body weight when
inhaled or injected, and twenty milligrams per kilogram of body
weight when ingested); see also United States v. Leahy, 169 F.3d 433, 436
(7th Cir. 1999) (explaining defendant’s possession of 0.67 grams of
ricin was enough to kill approximately 125 people).7 Ricin’s
deadliness is compounded, moreover, by the fact that it has no known
antidote. This contrasts sharply with the chemicals in Bond, which
were more likely to be irritating than lethal, and whose harmfulness
could be mitigated by rinsing with water. See Bond v. United States,
134 S. Ct. at 2085 (observing that chemicals at issue were “potentially
lethal” in “high enough doses”). Further, while the Bond chemicals
bore “little resemblance to the deadly toxins” that are the focus of the
Chemical Weapons Convention, id. at 2090, ricin is listed in Schedule
1 of the Convention’s Annex on Chemicals as a “high risk” substance,
see Chemical Weapons Convention, Annex on Chemicals, 1974
U.N.T.S. at 355–58. Also, the Secretary of Health and Human Services
has designated ricin as a “select . . . toxin” having “the potential to
pose a severe threat to public health and safety,” which means that its
possession or use for any purpose is strictly regulated. 42 C.F.R. §
73.3; see, e.g., id. §§ 73.7–73.19 (requiring persons seeking to possess,
use, or transfer any select toxin, inter alia, to submit to governmental
risk assessment, to obtain certificate of registration from agency, to
7 A microgram equals one millionth of a gram; a milligram equals one thousandth of a
gram.
20
develop for agency approval written security plan for safeguarding
toxin, and to submit to unannounced inspections).
Thus, we can confidently conclude that Bond’s hypothetical
“educated user of English,” Bond v. United States, 134 S. Ct. at 2090,
would describe ricin as the type of toxin normally understood as a
“biological weapon” and, thus, subject to federal law.8
In urging otherwise, Le observes that at the second, use step of
the analysis, Bond recognized a “weapon” to “connote[] [a]n
instrument of offensive or defensive combat.” Id. (internal quotation
marks omitted). He argues that nothing in the circumstances of his
case indicates that he attempted to acquire ricin for combat use.
Rather, his attempted acquisition was to facilitate a single client’s
murder of a single person. The argument is unpersuasive for several
reasons.
First, we do not understand Bond to hold that each of the two
factors—type and use—properly considered in identifying the
natural meaning of a chemical (or biological) weapon must equally
belie a purely local interest. Rather, the factors are properly
considered together to determine if, on balance, the substance in
question is naturally understood as a chemical (or biological) weapon.
Where, as here, the type of toxin at issue is particularly deadly, serves
no other purpose than to kill, and “pose[s] a severe threat to public
8 The conclusion finds further support in the fact that ricin is undetectable on autopsy. This
allows the toxin to kill while frustrating local law enforcement efforts even to detect that a
crime has been committed, let alone to prosecute its perpetration. This heightens the
federal interest in controlling the toxin’s acquisition.
21
health and safety,” 42 C.F.R. § 73.3, the first Bond factor may, by itself,
carry sufficient weight to have ricin fall within the natural meaning
of a biological weapon, see Bond v. United States, 134 S. Ct. at 2092
(citing, with seeming approval, Chemical Weapons Act prosecutions
for “possession of extremely dangerous substances with the potential
to cause severe harm to many people”).9
Second, and in any event, the record does not support Le’s
narrow characterization of his conduct as limited to supplying a
single customer targeting a single victim. In his Dark Net exchanges,
Le stated that he had “buyers lining up” for ricin and expected
“simple and easy [ricin] death pills” to become “best sellers.” Trial
Tr. at 55, 67. Thus, the circumstances of acquisition in this case are
reasonably understood not as an attempt to facilitate a single murder,
but as the first step in establishing a ricin distribution network to sell
“death itself.” Id. at 67–68. Far from being a purely local matter, such
conduct falls well within the “core concerns” of the treaty informing
the Biological Weapons Act. See Biological Weapons Convention,
supra, 1015 U.N.T.S. at 164–67 (prohibiting “development,
production, stockpiling, [or] acquisition”—i.e., proliferation—of
biological toxins within and between states).
Third, Bond does not hold that federalism limits the natural
meaning of “weapon” to a combat instrument. Bond observed that
9 A strong showing at the second, use step of analysis may also suffice to recognize that a
not‐necessarily‐deadly substance is naturally understood as a chemical (or biological)
weapon in the context employed. See Bond v. United States, 134 S. Ct. at 2091 (recognizing
that, if chemicals at issue in Bond were used to poison water supply, Chemical Weapons
Act might well apply).
22
the use of something as a weapon “typically” carries that connotation,
Bond v. United States, 134 S. Ct. at 2090 (emphasis added), but it did
not foreclose consideration of other natural meanings of the word in
light of the circumstances. For example, “weapon” is also generally
understood to signify an instrument “designed to be used to injure or
kill someone.” Black’s Law Dictionary 1730–31 (9th ed. 2009). Thus,
because a gun is designed to kill, an educated user of English would
describe it as a “weapon” without regard to whether its use involved
“combat.” See Webster’s Third New International Dictionary 452
(2002) (defining “combat” as “fight, encounter, or contest between
individuals or groups”; “fighting engagement of military forces”).
The chemicals in Bond were not “weapons” in the sense of either of
these natural meanings. The Bond defendant’s placement of
chemicals on a door knob or mailbox in the hope of inducing a rash
would hardly be described as “combat.” See Bond v. United States, 134
S. Ct. at 2090. Nor were the chemicals “designed” to kill; that they
could do so in other circumstances was more coincidental than a
matter of design. That is not the case with ricin. Its singular purpose
is to kill. And that was certainly the use Le intended for it in the
circumstances here. See Trial Tr. at 67–68 (stating “it is death itself
we’re selling here”; “simple and easy death pills”). Thus, we
conclude that the same hypothetical person who would not describe
the conduct in Bond as the use of a “chemical weapon” would describe
Le’s conduct as the attempted acquisition of a “biological weapon.”
Fourth, even if federalism principles of construction required
the terms “chemical weapon” and “biological weapon” to connote a
23
combat instrument, Bond itself signals that the term “combat” is not
to be construed so narrowly as to exclude “assassination, terrorism,
and acts with the potential to cause mass suffering.” Bond v. United
States, 134 S. Ct. at 2092. Such acts are as likely (1) to be carried out
by individuals (the proverbial “lone wolf” or self‐radicalized
terrorist) as by armies, (2) to target innocent civilians as uniformed
combatants, and (3) to be effected clandestinely as in direct
encounters. Le asserts that nothing in the circumstances of his case
indicates that he contemplated selling ricin to buyers intent on such
acts. What the record shows, however, is Le’s indifference to his
buyers’ purposes. His singular focus was on developing a foolproof
method to commit murder with ricin that he could sell to any
interested buyer. See Trial Tr. at 55, 67–68, 74, 83. Precisely because
the nature of ricin—deadly in even small quantities, lacking any
antidote, undetectable on autopsy—makes it ideally suited for
assassination and terrorism,10 Le would have to know that among the
In 1978, a Bulgarian dissident was assassinated in London by an assailant using an
10
umbrella tip to inject him with ricin. See Dana A. Shea & Frank Gottron, Congressional
Research Service, Ricin: Technical Background and Potential Role in Terrorism, CRS No.
21383, at 3 (Apr. 17, 2013). In 1994, anti‐government militia members in Minnesota were
convicted under the Biological Weapons Act of possessing ricin, which they intended to
use to assassinate local and federal law enforcement officials. See Jeanne Guillemin,
Biological Weapons: From the Invention of State‐Sponsored Programs to Contemporary
Bioterrorism 158 (2005). Letters containing ricin have been mailed to various government
officials, including Presidents George W. Bush and Barack Obama. See Shea & Gottron,
supra, at 3; Lisa B. McDermott, Reuters, “Texas Actress Sentenced to 18 Years for Ricin‐
Laced Letter to Obama” (July 16, 2014), available at https://www.reuters.com/article/us‐usa‐
crime‐ricin/texas‐actress‐sentenced‐to‐18‐years‐for‐ricin‐laced‐letter‐to‐obama‐idUSKBN
0FL2AI20140716; Therese Apel, Reuters, “Mississippi Man Gets 25 Years for Sending Ricin
Letter to Obama” (May 19, 2014), available at https://www.reuters.com/article/us‐usa‐ricin‐
mississippi/mississippi‐man‐gets‐25‐years‐for‐sending‐ricin‐letter‐to‐obama‐idUSBREA4
24
buyers “lining up” for his “simple and easy death pills” would be
persons with such purposes. Id. at 55, 67. In short, any professed
ignorance would have to be deemed willful. See United States v.
Fofanah, 765 F.3d 141, 144–45 (2d Cir. 2014) (explaining that conscious
avoidance doctrine permits jury to find defendant “had culpable
knowledge of a fact” where evidence shows he “was aware of a high
probability of the fact . . . and consciously avoided confirming” it); see
also United States v. Nektalov, 461 F.3d 309, 315 (2d Cir. 2006)
(“[D]efendant’s affirmative efforts to ‘see no evil’ and ‘hear no evil’
do not somehow magically invest him with the ability to ‘do no evil.’”
(internal quotation marks omitted)).
In sum, Le cannot show any federalism error, let alone plain
error, that requires vacatur of his conviction. His conduct—
attempting to acquire ricin over the internet and using a false identity
to have the Postal Service deliver the toxin to him—manifests no
purely local crime as in Bond v. United States, but conduct of primarily
federal concern. In any event, when we consider the type of biological
toxin here at issue, together with the circumstances under which Le
proposed to acquire and then distribute it, we conclude that Le’s
conduct falls comfortably not only within the statutory definition of a
“biological . . . toxin . . . for use as a weapon,” 18 U.S.C. § 175(a), but
also within the natural meaning of those words, thus raising no
I0QE20140519. International authorities have also foiled terrorist plots to develop and use
ricin. See David Brennan, Newsweek, “Jihadist Made Ricin with Web‐Bought Castor Bean
Seeds, Police Say,” (June 14, 2018), available at https://www.newsweek.com/jihadist‐made‐
ricin‐web‐bought‐castor‐bean‐seeds‐police‐say‐977244; Alan Blinder, N.Y. Times, “Two in
Ricin Terrorism Plot Are Each Sentenced to 10 Years in Prison” (Nov. 14, 2014), available at
https://www.nytimes.com/2014/11/15/us/ricin‐terrorism‐plot‐sentencing.html.
25
federalism concerns that preclude application of the Biological
Weapons Act to his case.
D. Constitutional Challenge
Le argues that, even if his conduct falls within the criminal
provision of the Biological Weapons Act, see id., his conviction must
be vacated because Congress lacked constitutional authority to enact
such legislation, see National Fed’n of Indep. Bus. v. Sebelius, 567 U.S.
519, 534–35 (2012) (explaining federal government “can exercise only
the powers granted to it” by Constitution (internal quotation marks
omitted)). Le contends that the Commerce Clause, see U.S. Const. art.
I, § 8, cl. 3, cannot provide the necessary authority because § 175(a)
“has nothing to do with commerce or economic enterprise,”
Appellant Br. at 25.11 In any event, he submits that the statute could
11 As Le observes, at one point in Bond, the government ”explicitly disavowed” the
Commerce Clause as a source of congressional authority for enactment of the Chemical
Weapons Act, 18 U.S.C. § 227 et seq., instead defending the statute under the Treaty Clause,
see U.S. Cont. art. II, § 2, cl. 2, an argument not reached by the Supreme Court, see Bond v.
United States, 134 S. Ct. at 2086–87. We do not understand that disavowal, taken with
respect to a different statute and not relied upon by the Supreme Court in finally resolving
the case, to preclude the government’s reliance on the Commerce Clause here. See Reed
Elsevier, Inc. v. Muchnick, 559 U.S. 154, 170 (2010) (explaining judicial estoppel typically
applies where “party has succeeded in persuading a court to accept [its] earlier position”
(internal quotation marks omitted)); DeRosa v. Nat’l Envelope Corp., 595 F.3d 99, 103 (2d Cir.
2010) (explaining judicial estoppel requires showing (1) party’s position is “clearly
inconsistent” with its earlier position, (2) former position “has been adopted in some way”
in prior court proceeding, and (3) party asserting two positions derives “unfair advantage
against the party seeking estoppel” (internal quotation marks omitted)); see generally
National Fed’n of Indep. Bus. v. Sebelius, 567 U.S. at 588 (recognizing statute as constitutional
exercise of Congress’s taxing authority despite government disavowal that statute
imposed tax). For reasons explained herein, we conclude that the Commerce Clause
supports both § 175’s enactment and its application to Le’s case, and, thus, we need not
26
not constitutionally be applied to him in the absence of a nexus
finding between his conduct and interstate commerce, which the jury
was not required to make in his case. These arguments, whether
styled as facial or as‐applied challenges, fail on the merits.12
The Supreme Court has construed the Commerce Clause to
authorize Congress’s regulation of three categories of activity:
(1) “the use of the channels of interstate commerce”; (2) “the
instrumentalities of interstate commerce, or persons or things in
interstate commerce”; and (3) “those activities that substantially affect
interstate commerce.” Taylor v. United States, 136 S. Ct. 2074, 2079
(2016) (internal quotation marks omitted).13 The third authority
defeats Le’s constitutional challenge to § 175(a). Pursuant thereto,
consider whether other constitutional provisions, such as the Treaty Clause and the
Necessary and Proper Clause, see U.S. Const. art. I, § 8, cl. 18; art. II, § 2, cl. 2, also do so, see
United States v. Morrison, 529 U.S. 598, 607 (2000) (explaining that statute “must be based
on one or more of [Congress’s] powers enumerated in the Constitution” to withstand
challenge to its enactment); see also National Fed’n of Indep. Bus. v. Sebelius, 567 U.S. at 535.
12 Facial challenges are “generally disfavored,” Dickerson v. Napolitano, 604 F.3d 732, 741
(2d Cir. 2010), and “the most difficult . . . to mount successfully” because they require the
challenger to “establish that no set of circumstances exists under which the Act would be
valid,” United States v. Salerno, 481 U.S. 739, 745 (1987); accord New York State Rifle & Pistol
Ass’n v. Cuomo, 804 F.3d 242, 265 (2d Cir. 2015). “If a court concludes that a statute was
constitutionally applied to a facial challenger, then it generally need not consider the
statute’s applicability in other situations.” Copeland v. Vance, 893 F.3d 101, 111 (2d Cir.
2018); see United States v. Decastro, 682 F.3d 160, 163 (2d Cir. 2012) (explaining that
defendant who fails to demonstrate that challenged law is unconstitutional as applied to
him “necessarily” fails to state facial challenge (internal quotation marks omitted)).
While acknowledging precedent permitting regulation of all three categories of activity
13
under the Commerce Clause, Justice Scalia thought that Congress’s power over the third
category derived from the Necessary and Proper Clause. See Gonzales v. Raich, 545 U.S. 1,
34–35 (2005) (Scalia, J., concurring in the judgment) (“Where necessary to make a
regulation of interstate commerce effective, Congress may regulate even those intrastate
activities that do not themselves substantially affect interstate commerce.”).
27
Congress may regulate even “purely local activities that are part of an
economic class of activities that have a substantial effect on interstate
commerce.” Id. at 2080 (internal quotation marks omitted). The
regulated activities must be “economic in nature” and “substantially
affect interstate commerce in the aggregate, even if their individual
impact on interstate commerce is minimal.” Id. at 2079–80 (internal
quotation marks omitted).
Le argues that the activities regulated by § 175(a)—the
development, production, stockpiling, transfer, acquisition, retention,
or possession of biological weapons—are not inherently economic in
nature. In support, he cites United States v. Morrison, 529 U.S. 598, 617–
18 (2000) (holding that statute proscribing violence against women
exceeded Congress’s Commerce Clause authority because it did not
regulate economic activity), and United States v. Lopez, 514 U.S. at 561
(holding that statutory prohibition on possession of gun in school
zone “by its terms has nothing to do with ‘commerce’ or any sort of
economic enterprise” and “is not an essential part of a larger
regulation of economic activity”). The argument is defeated by
Gonzales v. Raich, 545 U.S. 1 (2005).
There, the Supreme Court rejected a constitutional challenge to
the Controlled Substances Act (“CSA”), see 21 U.S.C. § 801 et seq., as
applied to “intrastate, noncommercial cultivation and possession of
[marijuana] for personal medical purposes,” Gonzales v. Raich, 545
U.S. at 8, 13 (internal quotation marks omitted). Distinguishing the
CSA from the statutes at issue in Morrison and Lopez, the Court
observed that the activities regulated by the CSA—the manufacture,
28
distribution, and possession of drugs—“are quintessentially
economic” and, thus, within Congress’s Commerce Clause authority
to regulate. Id. at 25–26 (observing that “’[e]conomics’ refers to ‘the
production, distribution, and consumption of commodities’”
(quoting Webster’s Third New International Dictionary 720 (1966))).
The intrastate and noncommercial nature of the challengers’ activities
warranted no different conclusion, the Court explained, because
“[p]rohibiting the intrastate possession or manufacture of an article of
commerce is a rational (and commonly utilized) means of regulating
commerce in that product.” Id. at 26. In making this point, the
Supreme Court cited various federal statutes doing just that. See id.
at 26 n.36. Notable here is the Court’s citation to 18 U.S.C. § 175(a),
the Biological Weapons Act provision that Le presently challenges.
See id.
As this citation indicates, and as we here conclude, § 175(a), like
the CSA, regulates quintessentially economic activity: the
development, production, stockpiling, transfer, acquisition, and
retention of biological toxins, fungible commodities for which an
interstate market exists. See id. at 25–26. That the provision regulates
“an unlawful market . . . is of no constitutional import,” as it is well‐
settled that Congress has the “power to prohibit commerce in a
particular commodity.” Id. at 19 n.29 (emphasis added). Accordingly,
§ 175(a) plainly falls within Congress’s Commerce Clause authority,
thus defeating Le’s facial challenge to the statute. See id. at 26 (holding
that because CSA “directly regulates economic, commercial activity,
. . . Morrison casts no doubt on its constitutionality”).
29
The same conclusion obtains for Le’s as‐applied challenge
because the conduct supporting his conviction was undeniably
commercial. The object of his actions was to buy ricin on the black
market in order to sell it to clients “lining up” for the toxic
commodity. Trial Tr. at 55, 67–68. Toward this commercial end, Le
knowingly employed an instrumentality of interstate commerce, the
internet, first, to locate a ricin supplier and, then, to order and pay for
the toxin. Also, he arranged for his ricin order to be delivered to him
through another instrumentality of interstate commerce, the United
States Postal Service. These activities, informing both the supply and
demand sides of the market for biological toxins, are plainly within
Congress’s Commerce Clause authority to proscribe. See Gonzales v.
Raich, 545 U.S. at 26, 31.
In urging otherwise, Le faults Congress for enacting § 175(a)
without particularized legislative findings of a relationship between
biological weapons and interstate commerce. While such findings
can sometimes be “helpful,” their “absence” does not necessarily “call
into question Congress’ authority to legislate.” Id. at 21. The
conclusion is particularly apt here where, as in Raich, the relationship
between proscribed trafficking in a dangerous commodity and
commerce is evident.
Nor is a different conclusion warranted by the fact that the jury
was not asked to make a nexus finding between Le’s conduct and
interstate commerce. Were such proof required, the trial record
overwhelmingly provides it, as we have just detailed. See Neder v.
United States, 527 U.S. 1, 9–10 (1999) (ruling that omission of element
30
is subject to harmless error review); see also United States v. Agrawal,
726 F.3d 235, 257 (2d Cir. 2013) (holding omission of element harmless
where proved by overwhelming evidence). In any event, the law does
not require the government to make a nexus showing in every
prosecution. See United States v. Ramos, 685 F.3d 120, 134 (2d Cir.
2012); United States v. Holston, 343 F.3d 83, 91 (2d Cir. 2003). Rather,
the requisite nexus is “’determined by the class of activities regulated
by the statute as a whole, not by the simple act for which an individual
defendant is convicted.’” United States v. Holston, 343 F.3d at 90–91
(quoting Proyect v. United States, 101 F.3d 11, 13 (2d Cir. 1996)). As we
have already concluded, § 175(a) regulates a “class of activities”
affecting interstate commerce and, thus, within the reach of
Congress’s Commerce Clause power.
Accordingly, because Congress’s enactment of § 175(a) fell
within its Commerce Clause authority, Le’s constitutional challenge
to that statute, both facial and as‐applied, fails, warranting no relief
from conviction.
II. Ineffective Assistance of Counsel
While Le’s appeal was being pursued by his trial counsel, and
prior to the appointment of current appellate counsel, Le filed a pro se
brief with this court arguing that (1) counsel had provided
constitutionally ineffective assistance at trial, and (2) both the district
court and this court erred in allowing trial counsel to represent Le on
appeal. With trial counsel now relieved and new appellate counsel
appointed, it is not clear if Le is pursuing his ineffectiveness claim on
31
direct appeal. In a supplemental pro se brief, he states that he “has
not, as of yet, asked this Court to hear this issue.” Dkt. No. 154 at 4.
We need not ask Le to clarify his position because his quoted
statement appears to recognize our “general[] disinclin[ation] to
resolve ineffective assistance claims on direct review.” United States
v. Gaskin, 364 F.3d 438, 467 (2d Cir. 2004). Such claims are more
appropriately raised in the first instance through a habeas corpus
petition to the district court, which is “best suited to developing the
facts necessary to determining the adequacy of representation during
an entire trial.” Massaro v. United States, 538 U.S. 500, 505 (2003).
Accordingly, we do not review Le’s ineffective assistance claim on
this appeal, leaving Le to pursue it, if he wishes, in a timely habeas
corpus petition.
CONCLUSION
To summarize, we conclude as follows:
1. Le’s federalism challenge to his conviction fails because
(a) the conduct for which he stands convicted under 18 U.S.C.
§ 175(a), the attempted acquisition of a biological toxin
over the internet and through the mails, by contrast to the
simple assault conduct in Bond v. United States, 134 S. Ct.
2077 (2014), on which he relies, is no purely local crime,
and, therefore, federalism principles of construction need
not be applied to narrow § 175(a)’s reach; and
32
(b) even when the federalism principles of construction
identified in Bond are applied here, Le’s conduct warrants
federal prosecution because of the deadly type of toxin he
sought to acquire, the particular suitability of that toxin for
assassination and terror, and Le’s indifference to its use.
2. Le’s constitutional challenge to his conviction fails because
the Commerce Clause authorizes both Congress’s enactment of
18 U.S.C. § 175(a) and the application of that statute to Le’s conduct.
3. We do not review Le’s claim of ineffective assistance of
trial counsel on this direct appeal; any such claim is properly pursued
in the first instance through a habeas corpus proceeding.
Accordingly, the judgment of conviction is AFFIRMED.
33