681 F.3d 149 (3rd Cir. 2012), 08-2677, United States v. Bond

Docket Nº:08-2677.
Citation:681 F.3d 149
Opinion Judge:JORDAN, Circuit Judge.
Party Name:UNITED STATES of America v. Carol Anne BOND, Appellant.
Attorney:Paul D. Clement [Argued], Bancroft, Ashley C. Parrish, King & Spalding, Washington, DC, Adam M. Conrad, King & Spalding, Charlotte, NC, Robert E. Goldman, Fountainville, PA, Eric E. Reed, Fox Rothschild, Philadelphia, PA, for Appellant. Paul G. Shapiro [Argued], Office of United States Attorney, ...
Judge Panel:Before: RENDELL, AMBRO, and JORDAN, Circuit Judges. RENDELL, Circuit Judge, concurring. AMBRO, Circuit Judge, concurring.
Case Date:May 03, 2012
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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681 F.3d 149 (3rd Cir. 2012)



Carol Anne BOND, Appellant.

No. 08-2677.

United States Court of Appeals, Third Circuit.

May 3, 2012

Argued Nov. 16, 2011.

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Paul D. Clement [Argued], Bancroft, Ashley C. Parrish, King & Spalding, Washington, DC, Adam M. Conrad, King & Spalding, Charlotte, NC, Robert E. Goldman, Fountainville, PA, Eric E. Reed, Fox Rothschild, Philadelphia, PA, for Appellant.

Paul G. Shapiro [Argued], Office of United States Attorney, Philadelphia, PA, for Appellee.

Before: RENDELL, AMBRO, and JORDAN, Circuit Judges.


JORDAN, Circuit Judge.

This case is before us on remand from the Supreme Court, which vacated our earlier judgment that Appellant Carol Anne Bond lacked standing to challenge, on Tenth Amendment grounds, her conviction under the penal provision of the Chemical Weapons Convention Implementation Act of 1998, 18 U.S.C. § 229 (the " Act" ), which implements the 1993 Chemical Weapons Convention, 32 I.L.M. 800 (1993) (the " Convention" ). The Supreme Court determined that Bond does have standing to advance that challenge, and returned the

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case to us to consider her constitutional argument.

In her merits argument, Bond urges us to set aside as inapplicable the landmark decision Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641 (1920), which is sometimes cited for the proposition that the Tenth Amendment has no bearing on Congress's ability to legislate in furtherance of the Treaty Power in Article II, § 2 of the Constitution. Cognizant of the widening scope of issues taken up in international agreements, as well as the renewed vigor with which principles of federalism have been employed by the Supreme Court in scrutinizing assertions of federal authority, we agree with Bond that treaty-implementing legislation ought not, by virtue of that status alone, stand immune from scrutiny under principles of federalism. However, because the Convention is an international agreement with a subject matter that lies at the core of the Treaty Power and because Holland instructs that " there can be no dispute about the validity of [a] statute" that implements a valid treaty, 252 U.S. at 432, 40 S.Ct. 382, we will affirm Bond's conviction.

I. Factual Background and Procedural History

A. Facts

Bond's criminal acts are detailed in our prior opinion, United States v. Bond, 581 F.3d 128, 131-33 (3d Cir.2009) (" Bond I " ), and in the Supreme Court's opinion, Bond v. United States, __ U.S. __, 131 S.Ct. 2355, 2360-61, 180 L.Ed.2d 269 (2011) (" Bond II " ), so we provide only a brief recitation here. Suffice it to say that, while Bond was employed by the chemical manufacturer Rohm and Haas, she learned that her friend Myrlinda Haynes was pregnant and that Bond's own husband was the baby's father. Bond became intent on revenge. To that end, she set about acquiring highly toxic chemicals, stealing 10-chlorophenoxarsine from her employer and purchasing potassium dichromate over the Internet. She then applied those chemicals to Haynes's mailbox, car door handles, and house doorknob. Bond's poisonous activities were eventually discovered and she was indicted on two counts of acquiring, transferring, receiving, retaining, or possessing a chemical weapon, in violation of the Act. She was, in addition, charged with two counts of theft of mail matter, in violation of 18 U.S.C. § 1708.

B. Procedural History

Bond filed a motion to dismiss the counts that alleged violations of the Act. She argued that the Act was unconstitutional, both facially and as applied to her. More particularly, she said that the Act violated constitutional " fair notice" requirements, that it was inconsistent with the Convention it was meant to implement, and that it represented a breach of the Tenth Amendment's protection of state sovereignty. Emphasizing that last point, Bond contended that neither the Commerce Clause, nor the Necessary and Proper Clause in connection with the Treaty Power, could support the expansive wording of the statute, let alone her prosecution. ( See App. at 59 (arguing that, " [g]iven the localized ... scope of the conduct alleged, ... application of 18 U.S.C. § 229 signals a massive and unjustifiable expansion of federal law enforcement into state-regulated domain" ).) The government's response has shifted over time,1 but

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it has been consistent in maintaining that the Act is a constitutional exercise of Congress's authority to enact treaty-implementing legislation under the Necessary and Proper Clause. The District Court accepted that argument and denied Bond's motion to dismiss.

We affirmed on appeal, concluding that Bond lacked standing to pursue her Tenth Amendment challenge and that the Act was neither unconstitutionally vague nor unconstitutionally overbroad.2 Bond I, 581 F.3d at 139. The Supreme Court granted certiorari to address the question of " [w]hether a criminal defendant convicted under a federal statute has standing to challenge her conviction on grounds that, as applied to her, the statute is beyond the federal government's enumerated powers and inconsistent with the Tenth Amendment." Petition for Writ of Certiorari, Bond v. United States (No. 09-1227), 2010 WL 1506717 at *i; see Bond v. United States, __ U.S. __, 131 S.Ct. 455, 178 L.Ed.2d 285 (2010). Ultimately, the Court concluded that Bond " does have standing to challenge the federal statute." Bond II, 131 S.Ct. at 2360. The case was remanded to us to address the " issue of the statute's validity" which, as the Court instructed, " turns in part on whether the law can be deemed ‘ necessary and proper for carrying into Execution’ the President's Article II, § 2 Treaty Power." Id. at 2367 (quoting U.S. Const. art. I, § 8, cl. 18).

II. Discussion3

In Missouri v. Holland, the Supreme Court declared that, if a treaty is valid, " there can be no dispute about the validity of the statute [implementing it] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government." 4

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252 U.S. at 432, 40 S.Ct. 382. Implicit in that statement is the premise that principles of federalism will ordinarily impose no limitation on Congress's ability to write laws supporting treaties, because the only relevant question is whether the underlying treaty is valid. See id. at 432, 434, 40 S.Ct. 382 (stating that " it is not enough to refer to the Tenth Amendment, reserving the powers not delegated to the United States" because the Treaty Power is delegated, but acknowledging the possibility that there may sometimes be " invisible radiation[s] from the general terms of the Tenth Amendment" ). Reasoning that a reading of Holland that categorically rejects federalism as a check on Congress's treaty-implementing authority is of questionable constitutional validity, Bond asks us to invalidate her conviction because the Act is unconstitutional as applied to her.5 She says that to hold otherwise would offend the Constitution's balance of power between state and federal authority by " intrud[ing] ... on the traditional state prerogative to punish assaults." (Appellant's Supp. Br. at 47.)

A. Constitutional Avoidance

Bond first argues, however, that we should avoid reaching the constitutional question by construing the Act not to apply to her conduct at all.6

Her avoidance argument begins with the text of the Act itself, which provides, in pertinent part, that " it shall be unlawful for any person knowingly ... to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon." 18 U.S.C. § 229(a)(1). The term " chemical weapon" is defined broadly to include any " toxic chemical and its precursors," id. § 229F(1)(A), and " [t]he term ‘ toxic chemical’ means any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent

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harm to humans or animals," id. § 229F(8)(A). Congress did put some limit on the sweep of the Act by excluding from the definition of " chemical weapon" any chemicals and precursors " intended for a purpose not prohibited under this chapter as long as the type and quantity is consistent with such a purpose." Id. § 229F(1)(A). The phrase " purpose not prohibited under this chapter," is then defined, in part, as " [a]ny peaceful purpose related to an industrial, agricultural, research, medical, or pharmaceutical activity or other activity." Id. § 229F(7)(A). It is that " peaceful purpose" language that Bond urges us to take as our interpretive lodestar.

Specifically, Bond argues that, by looking to the " peaceful purpose" exception, we can employ a " common sense interpretation of § 229" that avoids " mak[ing] every malicious use of a household chemical" — including her own— a federal offense. (Appellant's Supp. Br. at 17.) All we need do is " interpret the statute ... to reach [only the kind of acts] that would violate the Convention if undertaken by a signatory state." ( Id. at 14.) In other words, as Bond sees it, the modifier " peaceful" should be understood in contradistinction to " warlike" (3d Cir. Argument at 23), and, when so understood, the statute will not reach " conduct that no signatory state could possibly engage in— such as using chemicals in an effort to poison a romantic rival," as Bond did. (Appellant's Supp. Br. at 40.) That interpretation is tempting, in light of the challenges inherent in the Act's remarkably broad language,7 but, as we held the first time we had this case, Bond's behavior " clearly constituted unlawful possession and use of a chemical weapon under § 229." Bond I, 581 F.3d at 139.


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