In United States v. Le, No. 16-819, the Second Circuit considered the constitutionality of the Biological Weapons Anti-Terrorism Act of 1989 and whether it can reach “purely local” conduct. The panel (Sack, Raggi, Gardephe, D.J.), affirmed the conviction of Cheng Le for attempting to acquire the toxin ricin to create a foolproof murder method, rejecting his constitutional challenges.
According to evidence presented at trial, Le repeatedly attempted to buy the biological toxin ricin from a “Dark Net marketplace,” which Judge Raggi described as something akin to eBay, but for contraband material and with anonymization to keep buyers’ and sellers’ identities secret. Le, using several pseudonyms, inquired about ricin—a lethal poison with no known antidote—from an anonymous seller who, unbeknownst to him, was an undercover FBI agent. Le described himself as a “broker” who would sell the ricin to an end user, and outlined a plan where one ricin-laced pill would be added to an ordinary bottle of medication. He called the plan “100 percent risk-free” from detection by law enforcement. Le paid for the ricin using $300 of Bitcoin, and had it delivered via ordinary postal mail to New York under a fake name. The FBI delivered a sham package with fake ricin and arrested Le soon after he picked it up from the UPS store to which it was delivered. Le was convicted of violating the Biological Weapons Anti-Terrorism Act (the “Biological Weapons Act”), ”), as well as committing mail fraud and identity theft, and sentenced principally to 16 years’ imprisonment.
On appeal, Le challenged his conviction by arguing that applying the Biological Weapons Act to “purely local” crimes violated principles of federalism, and that the law was unconstitutional on its face and as applied. Because neither of these arguments were raised to the trial court, the Circuit reviewed for plain error.
The Biological Weapons Act criminalizes (among other things) knowingly attempting to acquire for use as a weapon any biological toxin, which indisputably includes ricin, a toxin derived from the seeds of the castor oil plant. See 18 U.S.C. § 175(a). The “use as a weapon” element is satisfied unless the toxin was acquired for bona fide research or other peaceful purposes. Le argued that the Biological Weapons Act cannot be used to prosecute a common-law crime entrusted to state law enforcement, like murder, citing Bond v. United States, 134 S. Ct. 2077 (2014). In Bond, the Supreme Court held that the Chemical Weapons Act—a statute usually applied to terrorist plots—could not be used to prosecute a wife’s attempt to put a minor chemical irritant on the door knob, car door, and mailbox of her husband’s lover. Looking to the language of the Chemical Weapons Act, the Supreme Court found no congressional intent to apply the statute to local crimes, and noted that if read broadly the statute could reach common household substances like detergent or stain remover that “no one would ordinarily describe . . . as ‘chemical weapons.’” To hold otherwise would be to expand the statute beyond its intended purpose of preventing chemical warfare.
The Second Circuit rejected the analogy to Bond. First, it held that even if the definition of biological toxins could extend to purely local crimes, Le’s conduct was indisputably multijurisdictional: he used both the internet and the U.S. Postal service to locate, purchase, and receive ricin. The federal government has a strong interest in regulating instrumentalities of interstate commerce. Moreover—and unlike the defendant in Bond—Le was prosecuted for acquiring the biological toxin, not just possessing it. Thus, even though the ricin was intended for use in a murder, the conduct was not “purely local.”
In holding that Le’s conduct fell within the Biological Weapons Act, the Second Circuit rejected another comparison to Bond. The substance in that case was “more likely to be irritating than lethal,” and its “antidote” was to rinse with water. By contrast, ricin is deadly even in very small doses, has no antidote, and is difficult to detect. The Court had no difficulty concluding that it would ordinarily be understood as a weapon. In addition, even if Le’s intended use was not particularly akin to warfare or combat, the toxin serves no purpose other than to kill and presents a severe public safety hazard. The Circuit did not read Bond to hold that to be a “weapon” a substance must be used in combat; weapons can also be instruments designed to kill, as ricin is. And Bond itself suggested that “combat” could include assassination and lone-wolf terrorism. Le made no attempt to determine what use his buyers intended for the toxin, and his purportedly undetectable murder scheme could surely be used for assassination or similar purposes.
The Court also rejected Le’s constitutional challenge to the Biological Weapons Act, finding its enactment to be supported under the Commerce Clause power to regulate activities that substantially affect interstate commerce. Citing Gonzalez v. Raich, 545 U.S. 1 (2005), a case about medical marijuana, the Second Circuit held that Congress could regulate activities that were “quintessentially economic,” even if the particular activity that was the subject of a prosecution was intrastate possession—citing, among other statutes, the Biological Weapons Act as an example of such a law. And as for the as-applied challenge, Le’s conduct was indisputably commercial in nature. The Second Circuit did not reach the question of whether Congress’s treaty power provided an alternative basis to enact the law, which gave effect to an international treaty banning biological weapons.
Finally, in a portion of the appeal submitted pro se, Le argued that his trial counsel was constitutionally ineffective. The Court concluded that this argument was better raised through collateral attack by filing a timely petition for habeas corpus.
The facts of the case are disturbing. Understandably, the defense tried to analogize the case to Bond. However, while it seems unlikely that Bond was meant to be limited to its facts, the Circuit drew several distinctions between the facts here and those in Bond, most notably the difference between the deadly ricin and the less serious chemical at issue in Bond. This seems to have driven the Court’s analysis; ricin has been used in the past to commit undetectable murders and could possibly cause mass suffering, which makes it seem like something that the federal government has ample authority to regulate.