Opinion
18-cv-152-jdp
12-20-2019
UNITED STATES of America, Plaintiff, v. Jeremy J. RYAN, Defendant.
Charles Sheppard, Jr., Fox Lake, WI, pro se. Brandon Flugaur, Wisconsin Department of Justice, Madison, WI, Wisconsin Department of Justice_1983 actions, for Defendant.
Charles Sheppard, Jr., Fox Lake, WI, pro se.
Brandon Flugaur, Wisconsin Department of Justice, Madison, WI, Wisconsin Department of Justice_1983 actions, for Defendant.
OPINION and ORDER
JAMES D. PETERSON, District Judge
Defendant Jeremy J. Ryan attempted to purchase a lethal dose of polonium-210 from a vendor on the "dark web." But the vendor turned out to be an FBI agent, and now Ryan is charged with two crimes: (1) knowingly and unlawfully attempting to possess "radioactive" material with the intent to cause death or serious bodily injury, in violation of 18 U.S.C. § 2332i ; and (2) intentionally and unlawfully attempting to possess "nuclear" material in violation of 18 U.S.C. § 831. Dkt. 107.
Ryan has moved to dismiss both charges in a string of seven motions. Dkts. 63–65 and 136–39. Ryan contends that § 2332i and § 831 shouldn't be construed as reaching his conduct and that both statutes are unconstitutional. He also moves to compel the government to produce the grand jury instructions, Dkt. 66; for a bill of particulars, Dkt. 67; and for the court to appoint a linguistics expert, Dkt.140.
I will deny all of Ryan's motions. As for Ryan's request to appoint an expert to aid with interpreting §§ 831 and 2332i, the meaning of a statute is a question of law to be determined by the court. See Negusie v. Holder, 555 U.S. 511, 530, 129 S.Ct. 1159, 173 L.Ed.2d 20 (2009) ("Courts are expert at statutory construction."). I am not persuaded that appointing an expert is either necessary or appropriate. See Ball v. Kotter, 723 F.3d 813, 825 (7th Cir. 2013) ("[E]xperts cannot give testimony that amounts to statutory interpretation." (internal quotations omitted)).
Several of Ryan's motions rest on Ryan's contention that was trying to obtain polonium-210 to kill himself, not another person. The government hasn't stipulated to that Ryan's purpose was suicide, so I could not grant relief to Ryan on that basis. But even if Ryan's intent was suicide rather than murder, I could not dismiss the indictment because both § 831 and § 2332i, by their terms, encompass self-harm as well as harm to others. Ryan's requests for grand jury instructions and a bill of particulars are contingent on a conclusion that § 2332i doesn't reach suicide, so I will deny those motions as moot.
Ryan's constitutional challenges fail as well. Ryan contends that § 831 and § 2332i violate the Tenth Amendment because their enactment was not a proper exercise of Congress's enumerated powers and the statutes intrude on state sovereignty. But both statutes are proper exercises of Congress' authority under the Commerce Clause. Under well-established law, Congress has the authority to regulate markets by prohibiting or restricting possession of items that implicate national interests. Moreover, § 2332i is a direct implementation of an international treaty, so that statute is also authorized by Congress's power to enact legislation that is "necessary and proper" to carry out the President's treaty power. The federal government's regulation of polonium-210, which Ryan concedes is rare and dangerous, does not intrude on a function generally reserved to the states.
Ryan also contends that the charge under § 831(a)(1)(B) violates his right to due process because the statute is unconstitutionally vague under principles in Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015). But for reasons explained in the opinion, Johnson has no bearing on this case. Ryan had fair notice that § 831(a)(1)(B) prohibited his conduct.
BACKGROUND
Most of the pertinent facts cited by the parties come from email exchanges between Ryan and an undercover FBI agent. I provide a summary those exchanges and background facts which appear to be undisputed.
In March 2018, Ryan sent a message to a site on the "dark web" that was advertising radioactive substances for sale. Unbeknownst to Ryan, the site was maintained by the FBI. Over the course of several months, Ryan communicated with an undercover FBI agent about purchasing polonium-210. I'll discuss the qualities of polonium-210 in more detail later in the opinion. For now it is enough to know that polonium-210 is
I'll borrow a description of the dark web from another court:
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 (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.
United States v. Le , 902 F.3d 104, 107 (2d Cir. 2018). See also United States v. Focia , 869 F.3d 1269, 1274 (11th Cir. 2017) ("The Dark Web [is] another side of the Internet accessible through your Internet provider but only using special software.... [I]t allows the sale and trade of all kinds of things that you would never find on a regular website open to the public." (internal quotations and alterations omitted)).
a silver-coloured metal found in uranium ores, ... discovered, by Marie and Pierre Curie in 1897. There are only about 100 micrograms in every tonne of ore. Po-210 is one of 25 radioactive isotopes of polonium—it decays to lead by alpha particle emission, with a half life of 138 days.
Hamish Kidd, "Polonium-210: A deadly element."
Available at: https://www.chemistryworld.com/news/polonium-210-a-deadly-element/3003225.article.
Ryan wrote that he was "looking for something that's very rare/difficult to get a hold of. Also that doesn't show symptoms immediately but kills them fairly soon after." The agent responded that if someone ingested polonium-210, they would "die quickly," but it would look like they "just g[o]t sick." The agent also wrote that polonium-210 is "very deadly inside [the] body," but is "safe" when kept in the vial. He asked Ryan for the height, weight, and sex of the "target" so that he could make a "lethal custom dose."
Ryan asked many questions about the effects of polonium-210, including whether they would mimic the effects of cancer. The agent responded that death from polonium-210 "would look very much like end stage of cancer," causing heart and lung failure. Ryan wrote that the "target" has "a type of cancer that will keep coming back" and wants to die, so "the target is going to knowingly take it." And he asked the agent to make the dose "as strong as you can so he will at least have a day before he gets sick but so him getting sick is as quick and painless as possible." But Ryan also wrote, "I may have some uses in the future that are about taking someone out that I don't care about.... If this works there are a lot of people that have fucked me over and I don't care about but would love to use this on."
In October 2018, Ryan placed an order for polonium-210, paying with bitcoin. The agent informed Ryan that he shipped the package to the address that Ryan provided. The agent also gave Ryan instructions for handling the package, telling him not to open the vial "until time of attack for ur safety," to wear gloves when he opened the vial, to pour the vial in food or drink, to put the lid back on the vial, and to dispose of it "somewhere else."
A few days later, Ryan picked up the package. He was arrested shortly thereafter.
ANALYSIS
A. Section 2332i
Ryan challenges the charge under § 2332i both on the ground that the statute doesn't apply to his conduct and on the ground that the statute is unconstitutional. Courts have a "general duty to avoid federal constitutional issues if the matter can be resolved on other grounds," Gibson v. American Cyanamid Co. , 760 F.3d 600, 608 (7th Cir. 2014), which suggests that I should begin with statutory interpretation arguments. Ryan admits that his statutory interpretation arguments rest on a finding of fact that he wanted to use the polonium-210 to kill himself rather than another person, a point that the government hasn't conceded. Dkt. 131, at 1.
For example, the government points to Ryan's statement that he wanted to use polonium-210 to "tak[e] someone out" and that he "would love to use" polonium-210 on "people that have fucked [him] over." So the record isn't completely one-sided on this issue. But even if it were, "[c]hallenging an indictment is not a means of testing the strength or weakness of the government's case, or the sufficiency of the government's evidence," United States v. Moore, 563 F.3d 583, 586 (7th Cir. 2009) (internal quotations omitted), so I couldn't resolve a factual dispute prior to trial (no matter how weak the government's position), a point that Ryan concedes. See Dkt. 116, at 3.
So even if I agreed with Ryan that § 2332i doesn't apply to suicide, I couldn't dismiss the charge on that ground. But because the interpretation of § 2332i could have a substantial impact on the trial in this case, I will address the statutory interpretation arguments first and then consider whether § 2332i, properly construed, is unconstitutional. 1. Scope of § 2332i
The relevant portion of § 2332i states the following: "Whoever knowingly and unlawfully ... possesses radioactive material ... with the intent to cause death or serious bodily injury ... shall be fined not more than $2,000,000 and shall be imprisoned for any term of years or for life." 18 U.S.C. § 2332i(a)(1) and (c). Subsection (3) extends the prohibition to attempts to commit the offense.
Ryan makes two basic arguments about the scope of § 2332i. His first argument is that the statute doesn't apply to suicide, which he says was his purpose. His second argument is that § 2332i should be construed so that it does not apply to "purely local crimes" that don't involve "nuclear terrorism," such as his own suicide attempt. This argument rests heavily on Bond v. United States , 572 U.S. 844, 134 S.Ct. 2077, 189 L.Ed.2d 1 (2014), in which the Court held that a statute prohibiting the possession or use of "any chemical weapon" didn't apply to "an amateur attempt by a jilted wife to [use two chemicals to] injure her husband's lover, which ended up causing only a minor thumb burn readily treated by rinsing with water." Id. at 848, 134 S.Ct. 2077.
a. Whether § 2332i applies to suicide attempts
Section 2332i doesn't expressly exclude suicide. The statute says that the defendant must have "the intent to cause death or serious bodily injury," but it doesn't say that the death or injury must be of another person. Ryan's argument that § 2332i should be read as excluding self-harm rests on the word "unlawfully." His argument has two premises: (1) "unlawfully" modifies both "possesses" and "intent," which means that "Ryan's possession must be unlawful and his purpose must also be unlawful," Dkt. 79-2, at 71; and (2) suicide isn't a crime in Wisconsin, so an intent to commit suicide isn't unlawful.
Ryan's second premise is based on two assumptions. The first is that Wisconsin law is relevant to an interpretation of a federal statute that applies nationwide. The second is that an attempt to commit suicide is "lawful" in Wisconsin because there is no criminal statute prohibiting it. Ryan doesn't address the civil statutes that allow an individual to be involuntarily detained or committed based on an expressed intent of self-harm. See Wis. Stat. §§ 51.15 and 51.20. The government doesn't contest these two assumptions, so I will accept them for purposes of interpreting § 2332i.
Before digging into the details, I'll set out the full text of the subsection at issue, showing the disputed language in context:
(a) Offenses.—
(1) In general.—Whoever knowingly and unlawfully —
(A) possesses radioactive material or makes or possesses a device—
(i) with the intent to cause death or serious bodily injury ; or
(ii) with the intent to cause substantial damage to property or the environment; or
(B) uses in any way radioactive material or a device, or uses or damages or interferes with the operation of a nuclear facility in a manner that causes the release of or increases the risk of the release of radioactive material, or causes radioactive contamination or exposure to radiation—
(i) with the intent to cause death or serious bodily injury or with the knowledge that such act is likely to cause death or serious bodily injury;
(ii) with the intent to cause substantial damage to property or the environment
or with the knowledge that such act is likely to cause substantial damage to property or the environment; or
(iii) with the intent to compel a person, an international organization or a country to do or refrain from doing an act,
shall be punished as prescribed in subsection (c).
Ryan contends that "unlawfully" in (a)(1) modifies not just "possesses" in (a)(1)(A) but also "with the intent to cause death or serious bodily injury" in (a)(1)(A)(i). His main argument is that an adverb modifies not just the adjacent verbs in a sentence, but also all subsequent elements in the statute. Dkt. 103, at 36 ("[T]he adverbial phrase modifies all the elements that follow."). Ryan says that this view is supported by three cases in which the Supreme Court has considered the scope of the word "knowingly" in a criminal statute:
• In Liparota v. United States , 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985), the Court interpreted the federal statute governing food stamp fraud, which provides that "whoever knowingly uses, transfers, acquires, alters, or possesses coupons or authorization cards in any manner not authorized by [the statute] or the regulations" is subject to a fine and imprisonment. 7 U.S.C. § 2024(b)(1). The Court held that the government must prove that "the defendant knew that he was acting in a manner not authorized by statute or regulations." Liparota , 471 U.S. at 420–21, 105 S.Ct. 2084.
• In United States v. X-Citement Video, Inc. , 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994), the Court construed 18 U.S.C. § 2252, which applies to a person who "knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual depiction, if ... the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct." The Court held that the word "knowingly" modifies the phrase "the use of a minor." X-Citement Video , 513 U.S. at 78, 115 S.Ct. 464.
• In Flores-Figueroa v. United States , 556 U.S. 646, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009), the Court considered the scope of a federal criminal statute forbidding "[a]ggravated identity theft," which imposes a mandatory consecutive two–year prison term upon individuals convicted of certain other crimes if, during (or in relation to) the commission of those other crimes, the offender "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person." 18 U.S.C. § 1028A(a)(1). The Court held that the statute "requires the Government to show that the defendant knew that the ‘means of identification’ he or she unlawfully transferred, possessed, or used, in fact, belonged to ‘another person.’ " Flores-Figueroa , 556 U.S. at 647, 129 S.Ct. 1886.
In a fourth case decided after Ryan submitted his briefs, the Court considered the scope of 18 U.S.C. § 922(g)(5) and § 924(a)(2), which prohibit aliens who are "illegally or unlawfully in the United States" from "knowingly violat[ing]" the law that prohibits them from possessing firearms. See Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019). The Court held that "the Government ... must show that the defendant knew he possessed a firearm and also that he knew he had the relevant [immigration] status when he possessed it." Id. at 2194.
Rehaif and the other three cases cited above do not provide significant guidance here. In none of the cases did the Court hold that an adverb modifies everything that comes after it. Rather, the Court made the more limited observation that, "[a]s a matter of ordinary English grammar, we normally read the statutory term ‘knowingly’ as applying to all the subsequently listed elements of the crime." Id. at 2196. In each case, the Court considered several factors to support its conclusion, including: (1) the "longstanding presumption" that a defendant must "possess a culpable mental state regarding each of the statutory elements that criminalize otherwise innocent conduct," Rehaif , 139 S.Ct. at 2195 (citing X-Citement Video , 513 U.S. at 72, 115 S.Ct. 464 ); (2) restricting the scope of the word "knowingly" would lead to "odd" and even "absurd" applications of the statute, Flores-Figueroa , 556 U.S. at 650, 129 S.Ct. 1886 ; X-Citement Video , 513 U.S. at 69, 115 S.Ct. 464 ; and (3) restricting the scope of "knowingly" would "criminalize a broad range of apparently innocent conduct," Liparota , 471 U.S. at 426, 105 S.Ct. 2084. These three factors don't apply in this case, in which the critical term is "unlawfully." Although there is a presumption that a criminal defendant must knowingly meet every element of the offense, Ryan cites no authority for a presumption that a defendant must have a specific intent to commit an unlawful act. Cf. United States v. Wilson, 159 F.3d 280, 288 (7th Cir. 1998) (observing that "[t]he traditional rule in American jurisprudence is that ignorance of the law is no defense to a criminal prosecution" but that Congress may make exceptions for "highly technical statutes that present the danger of ensnaring individuals engaged in apparently innocent conduct" (internal quotations and alterations omitted)).
The only sensible reading of § 2332i(a)(1) is that both "unlawfully" and "with the intent ..." modify the same word, "possesses." (Note that possessing more than .1 microcurie of polonium-210 without a license violates federal law. See 10 C.F.R. § 30.18 and § 30.71, Schedule B. A legal quantity would be a miniscule fraction of the amount of polonium-210 that would be harmful.) Ryan's proposed interpretation is awkward and unnatural.
Under Ryan's reading, the requisite "intent" in (a)(1)(A)(i) must be both "knowing intent" and "unlawful intent." It is not clear what "knowing intent to cause death or serious bodily injury" would even mean. Proof of knowledge is generally thought to be a lesser standard than proof of intent, see 1 Wayne R. LaFave, Substantive Criminal Law § 5.1(c) (3d ed.), so modifying "intent" with "knowingly" adds nothing. See Direct Sales Co. v. United States, 319 U.S. 703, 711, 63 S.Ct. 1265, 87 L.Ed. 1674 (1943) ("Without the knowledge, the intent cannot exist."). Ryan's proposed construction is syntactically awkward, which is a reason to reject it. See U.S. v. Hayes, 555 U.S. 415, 422, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009) (rejecting statutory construction that would be "awkward as a matter of syntax").
Ryan's proposed construction would also make § 2332i(a)(1)(B) very awkward. Section 2332i(a)(1)(B)(i) applies to someone who "knowingly and unlawfully [takes certain actions involving ‘radioactive material’] with the intent to cause death or serious bodily injury or with the knowledge that such act is likely to cause death or serious bodily injury." So under Ryan's reading of the statute, § 2332i(a)(1)(B)(i) would require both "knowing knowledge" and "unlawful knowledge." See Corley v. U.S., 556 U.S. 303, 314, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009) (rejecting an interpretation of statutory provision because it would render a related provision "nonsensical and superfluous").
Ryan says that § 2332(a)(1)(B)(i) shouldn't affect how § 2332(a)(1)(A)(i) is interpreted. Dkt. 103, at 35. But the "knowingly and unlawfully" requirement in (a)(1) applies to both (a)(1)(A) and (a)(1)(B). It is well established that "[s]tatutes must be read as a whole." U.S. v. Atlantic Research Corp. , 551 U.S. 128, 135, 127 S.Ct. 2331, 168 L.Ed.2d 28 (2007) (internal quotations omitted)). See also Maracich v. Spears , 570 U.S. 48, 65, 133 S.Ct. 2191, 186 L.Ed.2d 275 (2013) ("It is necessary and required that an interpretation of a phrase of uncertain reach is not confined to a single sentence when the text of the whole statute gives instruction as to its meaning."). Ryan offers no reason why "knowingly and unlawfully" would have a different scope in two closely-related provisions enacted at the same time. See Powerex Corp. v. Reliant Energy Services, Inc. , 551 U.S. 224, 232, 127 S.Ct. 2411, 168 L.Ed.2d 112 (2007) ("A standard principle of statutory construction provides that identical words and phrases within the same statute should normally be given the same meaning," a "maxim [that] is doubly appropriate [when the] phrase ... was inserted into [different parts of the statute] at the same time.").
A fair reading of § 2332i(a) as a whole makes it clear that the word "unlawfully" doesn't modify the phrase "with the intent to cause death or serious bodily injury." Rather, both "knowingly and unlawfully" and "with the intent ..." modify the word "possesses." In other words, § 2332i(a)(1)(A)(i) applies to someone who "knowingly, unlawfully, and with the intent to cause death or serious bodily injury, possesses radioactive material." Ryan argues that Congress could have written the statute that way if it had intended to do so. But the statute's structure makes sense as it is: the "knowingly and unlawfully" requirement in (a)(1) applies to two separate prohibited acts in (a)(1)(A) and (a)(1)(B). And, if Congress had intended the result Ryan advocates, it could have achieved that result simply by adding the words "of another person" after "with the intent to cause death or serious bodily injury."
The text of the statute is clear, so it isn't necessary to consider legislative history. But that history would only confirm the court's construction of the statute. As the government points out, the word "unlawfully" was added to § 2332i to exclude those who might lawfully possess radioactive material, such as first responders.
The House committee report states:
[The Convention on the Physical Protection of Nuclear Material amendment, one of the treaties on which § 2332i is based] also includes a specific exception for such sabotage acts "undertaken in conformity with the national law of the State Party in the territory of which the nuclear facility is situated." Such an exception would protect, for example, first responders but is not necessary in domestic law because the statute only criminalizes unlawful activity. Moreover, the government would not prosecute first responders for acts within their official duties in responding to an incident.
House Report for the U.S. Freedom Act, 2015 FD H.B. 2048, at 34 (NS), Federal Committee Report (May 8, 2015).
The bottom line is that Ryan's proposed interpretation of § 2332i(a)(1)(A) isn't supported by the text, structure, or history of the statute. So I decline to read the statute to require a specifically unlawful intent to cause death or bodily harm, and thus the statute does not exclude acts of self-harm.
b. Whether principles of federalism require a narrow interpretation of § 2332i
Ryan says that interpreting § 2332i to reach his conduct would expand federal criminal law into areas traditionally left to the states, thus encroaching on state sovereignty. So, Ryan argues, the court should construe § 2332i narrowly "to reach actual nuclear terrorism and not [his] dramatic suicide attempt." Dkt. 79-2, at 70. This part of Ryan's argument rests entirely on Bond v. United States , 572 U.S. 844, 134 S.Ct. 2077, 189 L.Ed.2d 1 (2014), so I begin by reviewing that case in some detail.
i. Facts and reasoning of Bond
The defendant, Carol Anne Bond, was a microbiologist. Id. at 848, 134 S.Ct. 2077. When Bond discovered that her best friend, Myrlinda Haynes, had an affair with Bond's husband and was pregnant with his child, "Bond stole a quantity of 10–chloro–10H–phenoxarsine (an arsenic-based compound) from her employer, a chemical manufacturer. She also ordered a vial of potassium dichromate (a chemical commonly used in printing photographs or cleaning laboratory equipment) on Amazon.com." Id. On multiple occasions, Bond spread the chemicals on Haynes's car door, mailbox, and door knob. Id. As a result, Haynes "suffered a minor chemical burn on her thumb, which she treated by rinsing with water." Id. It was undisputed that Bond wasn't trying to kill Haynes but "instead hoped that Haynes would touch the chemicals and develop an uncomfortable rash." Id.
Bond was charged with possessing and using a "chemical weapon," in violation of 18 U.S.C. § 229(a), which Congress enacted to implement the Convention on Chemical Weapons, an international treaty. Id . at 852, 134 S.Ct. 2077. After she was charged, Bond filed a motion to dismiss, contending that: (1) § 229 "exceeded Congress's enumerated powers and invaded powers reserved to the States by the Tenth Amendment"; and (2) § 229 did not reach her conduct. Id. at 853, 134 S.Ct. 2077. The lower courts rejected both arguments. Id. at 853–54, 134 S.Ct. 2077.
The Supreme Court declined to decide whether § 229 was authorized under the treaty power, the only power invoked by the government before the Court. Bond , 572 U.S. at 855, 134 S.Ct. 2077. For reasons that are not stated in the opinion, the government had "disavowed" any reliance on Congress's power under the Commerce Clause. Bond , 572 U.S. at 854–55, 134 S.Ct. 2077. But the Court concluded that § 229 didn't reach Bond's conduct. The Court didn't rely on a plain reading of the statutory definition of "chemical weapon," which, as the the main concurrence observed, was broad enough to encompass the chemicals Bond used. See Bond , 572 U.S. at 868, 134 S.Ct. 2077 (Scalia, J., concurring in the judgment). Instead, the Court relied on the rule that it will not interpret a statute in a way that would "dramatically intrude upon traditional state criminal jurisdiction" unless there is a "clear indication" from Congress that it intended to do that. Id. at 857, 134 S.Ct. 2077 (citing United States v. Bass , 404 U.S. 336, 350, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971) ).
In concluding that the government's proposed interpretation of § 229 would dramatically intrude upon traditional state criminal jurisdiction and that Congress did not clearly indicate that it intended such an intrusion, the Court relied on an "exceptional convergence of factors," id. at 866, 134 S.Ct. 2077, including:
• Bond wasn't trying to kill Haynes, id. at 852, 134 S.Ct. 2077 ;
• the term "chemical weapon" is "defined extremely broadly" in § 229, id. at 860, 134 S.Ct. 2077 ;
• "an educated user of English would not describe Bond's crime as involving a ‘chemical weapon’ because the
natural meaning of ‘chemical weapon’ takes account of both the particular chemicals that the defendant used and the circumstances in which she used them," id. at 860–61, 134 S.Ct. 2077 ;
• the substances that Bond used were dissimilar to "the deadly toxins" discussed in the Convention, id. at 861, 134 S.Ct. 2077 ;
• a "weapon" is ordinarily something used in "combat," and "no speaker in natural parlance would describe Bond's feud-driven act of spreading irritating chemicals on Haynes's door knob and mailbox as ‘combat,’ " id. ;
• Bond's conduct, "an act of revenge born of romantic jealousy, meant to cause discomfort, that produced nothing more than a minor thumb burn," did not suggest that she used a "chemical weapon," id.
• the government's interpretation of the statute "would sweep in everything from the detergent under the kitchen sink to the stain remover in the laundry room," id. at 862, 134 S.Ct. 2077 ;
• under the government's interpretation, "hardly a poisoning in the land would fall outside the federal statute's domain," id. at 863, 134 S.Ct. 2077 (internal quotations omitted);
• other prosecutions under § 229 usually "involved either terrorist plots or the possession of extremely dangerous substances with the potential to cause severe harm to many people," id. at 864, 134 S.Ct. 2077 ;
• state laws were sufficient to prosecute Bond and the government didn't identify an interest requiring federal intervention, id. ;
• "the context from which the statute arose [an international treaty on ‘chemical warfare’] demonstrates a much more limited prohibition was intended," id. at 866, 134 S.Ct. 2077.
As the Court wrapped up its analysis, it cautioned: "This case is unusual and our analysis is appropriately limited." Id . at 865, 134 S.Ct. 2077.
ii. Applying Bond to this case
Ryan says that his case is like Bond because the definition of "radioactive material" in § 2332i is "improbably broad" and his alleged crime was "purely local" and bears no relation to the type of "nuclear terrorism" that is the primary target of § 2332i and the treaties on which § 2332i based. Dkt. 79-2, at 69. I am not persuaded that Bond 's "limited analysis" to an "unusual" case should apply here. See 572 U.S. at 865–66, 134 S.Ct. 2077.
The overriding concern in Bond was whether accepting the government's reading of the statute would "dramatically" intrude on state criminal jurisdiction. In concluding that it would, the Court relied on primarily on the broad reach of the government's interpretation, which would extend to nearly all poisonings and even to "simple assaults." The Court also observed that Bond's conduct was adequately covered by state law. These two considerations are not present in this case.
Ryan's opening brief includes a lengthy discussion of the meaning of "radioactive material," which is defined in § 2332i(e)(8) as follows:
nuclear material and other radioactive substances that contain nuclides that undergo spontaneous disintegration (a process accompanied by emission of one or more types of ionizing radiation, such as alpha-, beta-, neutron particles and gamma rays) and that may, owing to their radiological or fissile properties, cause death, serious
bodily injury or substantial damage to property or to the environment.
Ryan argues that the definition is so broad that it would include many common items that emit ionizing radiation. Dkt. 79-2, at 38–43. But Ryan concedes that the radiation emitted by the items he cites (including bananas and air itself) is far too limited to cause death or serious bodily injury. Id. at 42. Ryan doesn't cite any evidence that § 2332i(e)(8) could reasonably include anything other than highly radioactive and dangerous substances.
In any event, the question the court must consider under the Bond analysis isn't the scope of § 2332i as a general matter, but whether the government's proposed interpretation would disrupt the federal-state balance. I am not persuaded that it would, both because of the nature of polonium-210 and because Ryan hasn't shown that § 2332i interferes with or duplicates any state regulation of the substance.
In Bond , the Court observed that "[t]he Federal Government undoubtedly has a substantial interest in enforcing criminal laws against assassination, terrorism, and acts with the potential to cause mass suffering. Those crimes have not traditionally been left predominantly to the States, and nothing we have said here will disrupt the Government's authority to prosecute such offenses." 572 U.S. at 864, 134 S.Ct. 2077. The Court cited several examples of appropriate prosecutions, including United States v. Ghane , 673 F.3d 771 (8th Cir. 2012), and United States v. Krar , 134 Fed. Appx. 662 (5th Cir. 2005), two cases involving the possession of cyanide, one of which ( Ghane ) involved a suicide plot.
Neither party has presented expert testimony about polonium-210. But they rely on substantially the same sources, and they don't dispute each other's descriptions of the substance. The parties state the following facts about polonium-210:
• Polonium-210 is rare; it occurs naturally, but in amounts that are too small to use; approximately 100 grams of polonium-210 are generated each year in nuclear reactors;
• Polonium-210 is produced for industrial and classroom purposes, but the amount of polonium-210 in a commercially-available unit is so small that it would take tens of thousands of units to make a fatal dose, at a cost of hundreds of thousands, if not millions, of dollars;
• Polonium-210 is lethal in small amounts; if swallowed, inhaled, or injected, it is 250 million times more toxic than cyanide; a particle smaller than a speck of dust is lethal;
• Russian dissident Alexander Litvinenko died from polonium-210 poisoning in 2006; the British government concluded that he had ingested the equivalent of 50 micrograms
Dkt. 79-2; at 45; Dkt. 89, at 39 (citing Polonium-210 Fact Sheet, Health Physics Society Specialist in Radiation Safety, https://hps.org/documents/po210factsheet.pdf).
Dkt. 79-2; at 46 (citing Dkt. 68-3, "Polonium-210," Backgrounder, Office of Public Affairs, United States Nuclear Regulatory Commission). Polonium-210 is used industrially to remove static. U.S. Nuclear Regulatory Commission, "Background on polonium-210," https://www.nrc.gov/reading-rm/doc-collections/fact-sheets/polonium.html. Industrial use of polonium-210 is regulated by the NRC. Id.
Dkt. 89, at 17 (citing Polonium-210 Fact Sheet). Another source cited by the parties states that polonium-210 is 250 billion times more toxic than cyanide and that "[t]oxicologists estimate that one gram of polonium-210 could be enough to ... kill 50 million people [and] make another 50 million people ill." Markus MacGill, "Polonium-210: Why is Po-210 so dangerous?" https://www.medicalnewstoday.com/articles/58088.php).
(millionths of a gram); the concern about exposure to others was so great that nearby businesses were closed as a precaution; Litvinenko's autopsy involved "complex safety measures";
• Polonium-210 has also been linked to the deaths of Marie Curie's daughter and several Israeli scientists who worked in a lab that experienced a polonium-210 leak.
Dkt. 79-2, at 44 (citing Secretary of State for the Home Department, "The Litvinenko Inquiry: Report into the death of Alexander Litvinenko," 2015-16, H.C. 695, at pt. 3, ch. 5, §§ 161-62, https://www.litvinenkoinquiry.org.); Dkt. 89, at 41 (citing Markus MacGill, "Polonium-210: Why is Po-210 so dangerous?" The safety measures included wearing protective suits with specialized hoods fed with filtered air. Michael Holden, "Litvenenko autopsy was world's most dangerous, UK inquiry hears (Jan. 28, 2015), https://www.reuters.com/article/us-britain-russia-litvinenko/litvinenko-autopsy-was-worlds-most-dangerous-uk-inquiry-hears-idUSKBN0L11LU20150128. One pathologist stated that "[i]t was probably the most dangerous post-mortem that's ever been conducted." Id.
Dkt. 79-2, at 18 n.27 (citing Jill Lawless & Maria Cheng,"What is polonium, and how deadly is it?" (Nov. 7, 2013), https://www.nbcnews.com/news/world/what-polonium-how-deadly-it-flna8C11551753; Dkt. 89, at 41. Polonium-210 was also discovered in Yasser Arafat's corpse when it was exhumed. Luke Harding and Ian Sample, "Polonium-210: the hard-to-detect poison that killed Alexander Litvinenko," https://www.theguardian.com/world/2013/nov/06/polonium-210-poison-alexander-litvinenko.
The facts cited by the parties readily distinguish polonium-210 from the chemicals at issue in Bond . Polonium-210 is rare, highly toxic, and extremely difficult to obtain except in minuscule, harmless amounts. In other words, polonium-210 is exactly the type of dangerous substance that the federal government has a strong interest in suppressing. This conclusion is supported by other cases decided after Bond under 18 U.S.C. § 175, which prohibits possession of biological weapons. See, e.g. , United States v. Le , 902 F.3d 104, 114–15 (2d Cir. 2018) (rejecting argument under Bond that an attempt to obtain ricin to kill one person was "effectively a common law crime entrusted by federalism to local law enforcement" because ricin is "particularly deadly" and "is naturally understood as a chemical (or biological) weapon"); United States v. Levenderis , 806 F.3d 390, 399 (6th Cir. 2015) ( Bond did not bar conviction for possessing ricin as part of a "suicide plot"; "[t]he lethality of ricin, combined with the fact that [the defendant] intended to use it in a way that could have exposed an unknown number of firefighters, first-responders, and residents to the substance, demonstrates that defendant's conduct had the potential to cause mass harm").
Ryan, at points, seems to challenge the view that polonium-210 is especially dangerous. In his reply brief, he questions whether polonium-210 is as dangerous as cyanide, presumably because he is trying to distinguish his situation from Ghane and Krar , two cases involving cyanide that the Supreme Court cited with approval in Bond . He doesn't dispute that polonium-210 is many times more toxic than cyanide, but he says that, unlike polonium-210, cyanide can be absorbed through the skin. Dkt. 103, at 7. Both substances are "extremely dangerous substances with the potential to cause severe harm to many people," Bond , 572 U.S. at 863, 134 S.Ct. 2077, which is all that matters.
Ryan offers other reasons for interpreting § 2332i narrowly in light of Bond : (1) small amounts of polonium-210 can be legally purchased in items such as chemistry sets; (2) the purpose of § 2332i isn't related to suicide attempts; and (3) Ryan had no control over the dose of polonium-210 he would be getting. I am not persuaded that any of these points compel a different result.
I assume that Ryan's observation about legal purchase of polonium-210 is an attempt to rely on the Supreme Court's concern in Bond that § 229 could be interpreted to reach household items that anyone could easily obtain. As Ryan himself acknowledges, it would take many thousand chemistry sets to create a dose of polonium-210 large enough to harm someone. Ryan doesn't identify any legitimate civilian purpose for polonium-210 at the dose he was seeking.
Ryan's second observation—about the purpose of § 2332i—assumes that Ryan was attempting to commit suicide, which, as discussed above, is not an assumption that I can make. I'll accept that preventing suicide was not one of Congress's primary concerns in enacting § 2332i. "But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." Oncale v. Sundowner Offshore Servs., Inc. , 523 U.S. 75, 79, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). In any event, Bond doesn't support the view that suicides are outside the reach of the federal government. Again, the key question is the scope of potential harm, not the reason for it. Because polonium-210 is so toxic, even an attempted suicide could place many others in harm's way. This conclusion is supported by the Supreme Court's reference to Ghane , 673 F.3d 771, a case about a suicide plot using cyanide, as an appropriate application of § 229. See also Levenderis, 806 F.3d at 399 (upholding conviction for attempting to use ricin to commit suicide despite defendant's reliance on Bond , noting that even suicide could pose a risk to bystanders).
As for Ryan's third observation—that he didn't ask for a specific amount of polonium-210 and the undercover agent never specified an amount—Ryan doesn't explain why that matters. The email exchanges cited by both sides make it clear that Ryan was asking for a "lethal" dose of polonium-210, so this is not a situation like Bond in which there was no attempt to do serious harm.
The bottom line is that polonium-210 is an excellent candidate for federal regulation. The rarity of polonium-210 suggests that the federal government is better equipped to regulate it. And polonium-210 is "very difficult to detect ... in hospital tests and airport scanners ... because it emits hardly any gamma radiation," which makes it easier to smuggle and to obfuscate the cause of death. Judging by his communication with the FBI agent, Ryan was interested in polonium-210, in part, because of the difficulty detecting it. And, by Ryan's own assertion, polonium-210 is most likely to be misused by "state actors and their licensees," Dkt. 79-2, at 46, as was suspected in the Litvinenko case. Ryan points to no state-law regime that is disrupted by federal regulation. In fact, Ryan says that possessing even large amounts of polonium-210 is not a crime in Wisconsin. Dkt. 79-2, at 47–48.
BBC News, "What is polonium-210?" (July 31, 2015), https://www.bbc.com/news/health-33717184.
The precise scope of Bond and its implications for future cases may not always be clear. In fact, one of the justices in Bond wrote a concurrence in which he contended that the Court's interpretation of § 229 rendered the statute so vague that it no longer provided fair notice. Bond , 572 U.S. at 872, 134 S.Ct. 2077 (Scalia, J., concurring in the judgment). But regardless whether Bond raises some difficult questions, this is not a case that needs to answer them. Section 2332i has a narrower scope than the statute at issue in Bond, and the facts alleged in this case are readily distinguishable from those at issue in Bond . So I reject Ryan's contention that Bond requires that I impose a saving construction of § 2332i that would require dismissal of the charges against him.
2. Whether Congress had authority to enact § 2332i
Ryan contends that none of Congress's enumerated powers authorized the enactment of § 2332i. Thus, Ryan argues, it violates the Tenth Amendment to the United States Constitution, which reserves to the states or the people any powers that the Constitution doesn't delegate to the federal government. The government contends that § 2332i is a proper exercise of both the commerce power and the treaty power.
a. Commerce power
The Commerce Clause allows Congress to "regulate Commerce ... among the several States." U.S. Const. Art. I, § 8, cl. 3. Ryan didn't address the commerce power in his opening brief because " § 2332i has not been enacted under the commerce power." Dkt. 79-2, at 53. After the government invoked the commerce power in its opposition brief, Ryan contended in his reply brief that the government can't rely on a power that Congress didn't invoke when enacting the statute.
But Ryan's argument is put to rest by Supreme Court cases concerning the Affordable Care Act. The Court has expressly rejected the contention that congressional authority is limited by the way Congress frames its authority in the statute. For example, in National Federation of Independent Business v. Sebelius , 567 U.S. 519, 564, 569–70, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012), the Court upheld a key provision of the Affordable Care Act under the taxing power, even though Congress didn't invoke that power and referred to the provision as a "penalty" rather than a tax. In response to the dissenters' statement that the Court couldn't uphold the ACA as a tax "because Congress did not ‘frame’ it as such," the Court observed that the "question of the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise." Id. at 569–70, 132 S.Ct. 2566 (quoting Woods v. Cloyd W. Miller Co. , 333 U.S. 138, 144, 68 S.Ct. 421, 92 L.Ed. 596 (1948) ). See also id. at 564, 132 S.Ct. 2566 ("Th[e] constitutional question [i]s not controlled by Congress's choice of label."). So I will consider whether § 2332i is a valid exercise of Congress's commerce power.
Apparently, no court has yet considered the constitutionality of § 2332i. (In fact, Ryan represents that this is the first prosecution under the statute.) But courts have consistently relied on the commerce power to uphold federal statutes that regulate the market of dangerous items that affect interstate commerce, such as weapons and drugs, even when the defendant's conduct didn't involve interstate activity. See, e.g. , United States v. Hosford , 843 F.3d 161, 171–72 (4th Cir. 2016) (statute prohibiting intrastate sale of firearm by unlicensed dealer); United States v. Rose , 522 F.3d 710, 719 (6th Cir. 2008) (statute prohibiting intrastate transfer of firearm to felon); United States v. Cardenas , 158 F. App'x 780, 781 (9th Cir. 2005) (statute prohibiting possession of a "listed chemical" with intent to manufacture a controlled substance); United States v. Bass , 325 F.3d 847, 849 (7th Cir. 2003) (statute prohibiting felons from possessing firearms); United States v. Westbrook , 125 F.3d 996, 1008–09 (7th Cir. 1997) (statute prohibiting knowing or intentional manufacture, distribution, and possession of a "controlled substance"); United States v. Kenney , 91 F.3d 884, 890 (7th Cir. 1996) (ban on possession of machine guns); United States v. Sweet , 548 F.2d 198 (7th Cir. 1977) (statute prohibiting unlawful use of explosives in intrastate activity). The Supreme Court has summarized the reasoning that supports these decisions: "Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product." Gonzales v. Raich , 545 U.S. 1, 26, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005).
In his reply brief, Ryan attempts to distinguish Raich with a lengthy argument that § 2332i is different from the Controlled Substances Act (the law at issue in Raich ) because the CSA is an effort by Congress to "take[ ] over the entire market of controlled substances" but § 2332i isn't part of an attempt "to control everything with radioactive properties all the way down to the last microcurie." Dkt. 103, at 15–23. In support of that statement, he cites Virginia Uranium, Inc. v. Warren , ––– U.S. ––––, 139 S. Ct. 1894, 204 L.Ed.2d 377 (2019), in which the Court held that the Atomic Energy Act, 42 U.S.C. § 2021 does not preempt a Virginia law banning uranium mining. He also cites provisions in § 2021 that allow the federal government to enter into agreements with states to give states regulatory authority over certain radioactive and nuclear materials. See 42 U.S.C. § 2021(b).
Ryan may be correct that the government's regulatory approach to radioactive substances isn't identical to controlled substances. But it doesn't have to be, and Raich doesn't say otherwise. It is true that the Court discussed the expansive scope of the CSA in Raich . But that was because the activity being regulated in Raich —marijuana grown for "personal medical use"—was itself intrastate, noneconomic activity. So, in explaining why Congress had authority to regulate that activity under the commerce power, the court relied on the principle from Wickard v. Filburn , 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), that "Congress can regulate purely intrastate activity that is not itself ‘commercial,’ in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity." Raich, 545 U.S. at 18, 125 S.Ct. 2195. But the government doesn't need to rely on that principle in this case because the conduct being regulated here is inherently commercial and implicates both interstate and international commerce: an attempt to use the internet to purchase a dangerous substance that is produced in nuclear reactors. Ryan isn't accused of trying to make polonium-210 for his own use in a nuclear reactor in his basement, so his attempt to compare this case to Raich isn't persuasive.
Virginia Uranium isn't helpful either because that case is based on the view that both state and federal government can exercise authority over radioactive substances. See also New York v. United States , 505 U.S. 144, 159–60, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (recognizing overlapping state and federal authority over the regulation of radioactive waste). The important point is that § 2332i regulates economic activity with both national and international implications and that the conduct alleged in this case involved attempts to use channels of commerce to commit an unlawful act. Le , 902 F.3d 104, is on point. In that case, the court considered whether 18 U.S.C. § 175(a), which prohibits possession of "any biological agent, toxin, or delivery system for use as a weapon," is a valid exercise of the commerce power. The court of appeals observed that, like the statute at issue in Raich , § 175(a) "regulates quintessentially economic activity," including "the development, production, stockpiling, transfer, acquisition, and retention of biological toxins, fungible commodities for which an interstate market exists." Le , 902 F.3d at 119. Turning to the allegations against the defendant, the court noted multiple connections to commerce: the defendant's purpose was to buy ricin on "the black market"; he used the internet to locate a supplier and order the toxin; and he arranged for delivery through the United States Postal Service. Id. The court wasn't persuaded by the fact that Congress failed to support § 175(a) with findings of a relationship between biological weapons and interstate commerce, holding that findings aren't required when "the relationship between proscribed trafficking in a dangerous commodity and commerce is evident." Id. (citing Raich , 545 U.S. at 21, 125 S.Ct. 2195 ).
The reasoning in Le is persuasive and its holding is directly applicable to this case. Like § 175(a), § 2332i regulates the market of dangerous substances that the federal government has a strong interest in restricting. And like Le, Ryan is accused of using the internet and the postal service as part of an attempt to obtain such a substance. Although the government relies heavily on Le in its opposition brief, Ryan doesn't mention it in any of his briefs. In the absence of an attempt to distinguish or criticize Le , I see no reason not to follow it. So I conclude that § 2332i is a valid exercise of the commerce power, both as a general matter and as applied to this case.
b. Treaty power
Even if the commerce power did not give Congress authority to enact § 2332i, I would not dismiss Ryan's indictment because the statute was properly enacted pursuant to the treaty power. The Constitution gives the power to make treaties to the President, with the advice and consent of the Senate. U.S. Const., Art. II, § 2, cl. 2. But under Article I, section 8, clause 18, Congress has the power to enact laws that are "necessary and proper for carrying into Execution" the President's treaty power. See Bond v. United States , 564 U.S. 211, 226, 131 S.Ct. 2355, 180 L.Ed.2d 269 (2011).
In this case, Congress enacted § 2332i to implement two treaties, the International Convention for the Suppression of Acts of Nuclear Terrorism (also called the Nuclear Terrorism Convention) and the amendment to the Convention on the Physical Protection of Nuclear Material. See House Report for the U.S. Freedom Act, 2015 FD H.B. 2048, at 33 (NS), Federal Committee Report (May 8, 2015). Section 2332i(a)(1) tracks the language in Article 2 of the Nuclear Terrorism Convention. And the definition of "radioactive material" in § 2332i(e)(8) tracks the definition in the Convention. Ryan doesn't challenge the validity of the Nuclear Terrorism Convention. And he doesn't deny that § 2332i(a)(1) is necessary to implement the Convention. After all, Article 5 of the Convention directs signatory countries "[t]o establish as criminal offenses under its national law the offenses set forth in article 2." That is the end of the matter. "If the treaty is valid there can be no dispute about the validity of the statute under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government." Missouri v. Holland , 252 U.S. 416, 433, 40 S.Ct. 382, 64 L.Ed. 641 (1920). See also United States v. Bachner, No. 08 CR 50029, 2011 WL 1743427, at *2 (N.D. Ill. May 6, 2011) (concluding that federal criminal statute prohibiting possession of biological weapons was valid under Necessary and Proper Clause when treaty directed signatory nations to enact such a statute).
Article 2 states in part: "Any person commits an offense within the meaning of this Convention if that person unlawfully and intentionally ... [p]ossess radioactive material ... [w]ith the intent to cause death or serious bodily injury."
Article 1 defines "[r]adioactive material" as:
nuclear material and other radioactive substances which contain nuclides which undergo spontaneous disintegration (a process accompanied by emission of one or more types of ionizing radiation, such as alpha-, beta-, neutron particles and gamma rays) and which may, owing to their radiological or fissile properties, cause death, serious bodily injury or substantial damage to property or to the environment.
Ryan says that "the treaty power (while great) is not a means of enacting national legislation that Congress otherwise would be powerless to effect." Dkt. 79-2, at 53. But the Court has said the opposite: "treaties made pursuant to that power can authorize Congress to deal with matters with which otherwise Congress could not deal." United States v. Lara , 541 U.S. 193, 201, 124 S.Ct. 1628, 158 L.Ed.2d 420 (2004) (internal quotations omitted). The only authority Ryan cites is a concurrence to a decision that didn't address the scope of the treaty power. See Bond , 572 U.S. at 883, 134 S.Ct. 2077 (Scalia, J., concurring in the judgment).
Ryan says that following the rule espoused in Holland and Lara would allow Congress to rely on the treaty power to suspend habeas corpus or extend the President's four-year term. Dkt. 103, at 24. But that is also incorrect. "It is well-settled ... that the United States government must, in carrying out its treaty obligations, conform its conduct to the requirements of the Constitution, and that treaty obligations cannot justify otherwise unconstitutional governmental conduct." Matter of Burt , 737 F.2d 1477, 1484 (7th Cir. 1984). In other words, the treaty power allows Congress to exercise powers that aren't otherwise enumerated in the Constitution, but treaties don't empower Congress to violate the Constitution. Because Ryan doesn't contend that § 2332i violates his constitutional rights, his concern about a treaty overriding the Constitution isn't implicated.
3. Whether Ryan is entitled to disclosure of the grand jury instructions or a bill of particulars
Ryan also asks the court to compel the government to disclose the grand jury instructions and to provide a bill of particulars. But Ryan acknowledges that both requests are contingent on a finding that § 2332i(a)(1) doesn't apply to attempted suicide. Dkt. 116, at 5. Because I have concluded that it does, these requests are moot.
B. Section 831
The government also charged Ryan under 18 U.S.C. § 831(a)(1)(B) and (a)(8). Section 831(a)(1)(B) states:
Whoever, if one of the circumstances described in subsection (c) of this section occurs—
(1) without lawful authority, intentionally receives, possesses, uses, transfers, alters, disposes of, or disperses any nuclear material or nuclear byproduct material and—
....
(B) circumstances exist, or have been represented to the defendant to exist, that are likely to cause the death or serious bodily injury to any person, or substantial damage to property or to the environment ...
... shall be punished as provided in subsection (b) of this section.
Subsection (c) is satisfied if "the offense is committed in the United States." 18 U.S.C. § 831(c).
Section 831(a)(8) applies to anyone who "attempts to commit any act prohibited under" § 831(a)(1).
Ryan challenges the charge under § 831 on three grounds: (1) properly construed, § 831 doesn't reach his conduct; (2) the statute falls outside Congress's enumerated powers; and (3) the statute is unconstitutionally vague. Ryan also says that § 831 violates the Tenth Amendment, but that is simply another way of contending that Congress lacked the power to enact the statute. See New York, 505 U.S. at 156, 112 S.Ct. 2408 ("If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States."). So I need not address the contention about the Tenth Amendment separately.
1. Whether principles of federalism require a narrow interpretation of § 831
Ryan doesn't deny that a plain reading of § 831(a)(1)(B) and (a)(8) cover suicide attempts. And he doesn't deny that polonium-210 qualifies as "nuclear material or nuclear byproduct material." Instead, he again relies on Bond to contend that the court should narrowly construe § 831 because applying the statute to his conduct would be a "serious intrusion into state sovereignty." This is the same contention that Ryan raised against § 2332i and I reject it for the same reason: polonium-210 is a rare and highly dangerous substance, so the federal government has a strong interest in regulating it. And Ryan has not shown that federal regulation of polonium-210—or any other substance covered by § 831—will encroach on matters traditionally left to the states. Ryan could not contend plausibly that regulating nuclear material is traditionally a state function rather than a federal one. See Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n , 461 U.S. 190, 212, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983) ("[T]he federal government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the states.").
"Nuclear material" is limited to plutonium and certain types of uranium, 18 U.S.C. § 831(g)(1), but "nuclear byproduct material" is "any material containing any radioactive isotope created through an irradiation process in the operation of a nuclear reactor or accelerator," id. § 831(g)(2).
2. Whether Congress had authority to enact § 831
The government relies primarily on the commerce power to support § 831(a)(1)(B). For the most part, the parties repeat the same arguments that they made for § 2332i. And I agree with the government for the same reason: the commerce power gives Congress the authority to regulate the market for nuclear material by prohibiting its possession under certain circumstances. In fact, in Raich , the Court cited § 831(a) as an example to support its statement that "[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." 545 U.S. at 26, 125 S.Ct. 2195 (also citing statutes related to biological weapons, contraband cigarettes, and bald eagles). Because Ryan doesn't raise any new arguments explaining why the commerce power doesn't adequately support § 831(a)(1)(B), I need not discuss this issue further.
The government doesn't contend that Congress enacted § 831(a)(1)(B) to implement a treaty. Instead, it cites what it calls "foreign affairs and national security powers," Dkt. 152, at 10, citing Perez v. Brownell , 356 U.S. 44, 78 S.Ct. 568, 2 L.Ed.2d 603 (1958). In reply, Ryan points out that there is no "foreign affairs and national security" power enumerated in the Constitution. And he notes that Perez was overruled in part by Afroyim v. Rusk , 387 U.S. 253, 87 S.Ct. 1660, 18 L.Ed.2d 757 (1967), a case the government doesn't discuss. Because I am concluding that § 831(a)(1)(B) is justified under the commerce power, I need not consider the government's alternative argument.
3. Whether § 831(a)(1)(B) is unconstitutionally vague
The void-for-vagueness doctrine reflects an aspect of the right to due process under the Fifth Amendment. United States v. Vivas-Ceja , 808 F.3d 719, 721 (7th Cir. 2015). A statute is unconstitutionally vague if it fails to give ordinary people fair notice of the conduct it punishes or is so standardless that it invites arbitrary enforcement. United States v. Morris , 821 F.3d 877, 879 (7th Cir. 2016). The question is whether the statute is sufficiently clear that it covers the defendant's conduct, not whether it gives fair notice in the abstract. Holder v. Humanitarian Law Project , 561 U.S. 1, 18–19, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010).
In this case, Ryan argues that the phrase "circumstances ... have been represented to the defendant to exist that are likely to cause the death or serious bodily injury to any person" is unconstitutionally vague. His argument rests entirely on Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015), in which the Court held that a portion of the Armed Career Criminal Act was void for vagueness. Specifically, the Court struck down what it called "the residual clause," which defines a "violent felony" in part as any felony that "involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B).
The Court's holding rested in part on the way the Court had interpreted ACCA in the past. In Taylor v. United States , 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the Court held that it must use what it called "the categorical approach" when deciding whether an offense is a violent felony under the residual clause. Under that approach, a court must "picture the kind of conduct that the crime involves in ‘the ordinary case’ " and then "judge whether that abstraction presents a serious potential risk of physical injury." Johnson , 135 S. Ct. at 2557.
The Court concluded that the language of § 924(e)(2)(B) as construed in Taylor was unconstitutionally vague for two reasons. First, there was "grave uncertainty about how to estimate the risk posed by a crime" because a court was required to consider a hypothetical, "ordinary case" rather than "real-world facts or statutory elements." Johnson , 135 S. Ct. at 2557. The statute provided no guidance on what an "ordinary" case was. Second, the residual clause didn't explain "how much risk it takes for a crime to qualify as a violent felony." Id. at 2558. "By combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates." Id. Ryan contends that Johnson is controlling in this case because § 831(a)(1)(B) doesn't explain how someone is supposed to "evaluate physical harm's likelihood under circumstances merely represented to him to exist." Dkt. 141, at 36. Specifically, Ryan says that § 831(a)(1)(B) doesn't say whether the defendant must believe what is represented to him or whether the elements are satisfied even if the defendant receives contradictory information about how dangerous the substance is or even if the representation made to the defendant is hidden in "fine print." Dkt. 141, at 37.
Ryan's reliance on Johnson is misplaced. Johnson is distinguishable because § 831(a)(1)(B) doesn't require anyone to consider a hypothetical, "ordinary case." Rather, the statute asks whether the defendant actually received information that the substance at issue was likely to cause the death or serious bodily injury to any person.
But more important, Ryan hasn't shown how any of the alleged ambiguities are relevant to his case. See Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 455 U.S. 489, 495, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) ("A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others."). Ryan doesn't deny that he believed polonium-210 would likely kill someone; he repeatedly alleges throughout his briefs that he wanted to obtain the substance to kill himself. And he doesn't allege that the undercover agent obscured the fact that polonium-210 can cause death. Ryan cites numerous instances in the agent's online messages where the agent described polonium-210 as "lethal" and "deadly." Dkt. 79-2, at 14–17, 20, 25, 27. Although Ryan says that the agent also described polonimum-210 as "safe," that is misleading. Ryan cites messages in which the agent wrote that polonium-210 was safe to handle when it was in the vial. See, e.g. , Dkt. 79-2, at 17 ("[The] vial [i]s completely safe [to] touch when it [is] closed."). But Ryan doesn't cite any language from the emails in which the agent denied that the polonium-210 was likely to cause death or serious bodily harm.
Because Ryan hasn't shown that § 831(a)(1)(B) is vague as applied to his conduct, his motion to dismiss on that ground will be denied.
C. Conclusion
This is an unusual case with unusual facts, involving statutes that are rarely invoked. Perhaps Ryan is correct that Congress wasn't envisioning someone in his particular circumstances when it enacted § 2332i and § 831. But even if the primary concern behind both statutes is terrorism and even if Ryan's conduct isn't a typical example of terrorist activity, that isn't enough to show that he is immune from federal prosecution. Under Ryan's own version of the facts, his conduct falls comfortably within the plain language of both statutes. And the enactment of both statutes was well within Congress's enumerated powers.
Ryan's key contention—that the indictment in this case represents a dramatic extension of federal power and an intrusion on state sovereignty—simply isn't persuasive. Polonium-210 can't be plausibly classified in the same category of common and easily obtained substances as those described in Bond . It is undisputed that polonium-210 is a rare and highly toxic substance that has the capacity to harm large numbers of people. By Ryan's own assertion, a nuclear reactor is required to make useful quantities of polonium-210, so it would ordinarily require state assistance to obtain. That is exactly the type of substance that the federal government has a strong interest in regulating. In light of both the national and international interests implicated by polonium-210 and the substance's relative obscurity compared to other poisons, I see no disruption to the federal-state balance of power by recognizing the federal government's authority in this area.
For these reasons, I conclude that Ryan has failed to show that § 831 and § 2332i are unconstitutional or that they require a narrow interpretation that isn't supported by the plain language of the statutes. I will deny Ryan's motions to dismiss, his motion to appoint an expert, his motion to compel disclosure of the grand jury instructions, and his motion for a bill of particulars.
ORDER
IT IS ORDERED that all of Jeremy Ryan's motions, Dkts. 63–67 and Dkts. 136–40, are DENIED.