Siers-Hill v. United States

Decision Date15 June 2020
Docket NumberCIVIL NO. 2:20cv38,CRIMINAL NO. 2:18cr62
CourtU.S. District Court — Eastern District of Virginia
Parties Debbie SIERS-HILL, Petitioner v. UNITED STATES of America, Respondent.

Counsel for Petitioner: Jamison Page Rasberry, Rasberry Law, P.C., 1023 Laskin Road, Suite 101, Virginia Beach, VA 23451.

Counsel for United States of America: Alan Mark Salsbury, Andrew C. Bosse, United States Attorney's Office, 101 W. Main Street, Suite 8000, Norfolk, VA 23510.



This matter comes before the Court on Debbie Siers-Hill's ("Petitioner") Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (" § 2255 Motion"). ECF No. 40. In her § 2255 Motion, Petitioner asks the Court to vacate her judgment of conviction and sentence on four grounds, all of which center on the assertion that her offense—Possession of an Unregistered Biological Agent or Toxin (Ricin)—was not in violation of law at the time of said possession.

As a broad overview of the matters addressed herein, the Court provides the following synopsis of the statute at issue: On April 18, 2018, Petitioner was named in a two-count criminal indictment, one count of which charged her with Possession of an Unregistered Biological Agent or Toxin (Ricin), in violation of 18 U.S.C. § 175b(c)(1). Title 18 U.S.C. § 175b(c)(1) states,

Whoever knowingly possesses a biological agent or toxin where such agent or toxin is a select agent for which such person has not obtained a registration required by regulations under section 351A(c) of the Public Health Service Act shall be fined under this title, or imprisoned for not more than 5 years, or both.

18 U.S.C. § 175b(c)(1). Subsection (d) of § 175b defines the scope of such "select agents," explaining that "[t]he term ‘select agent’ means a biological agent or toxin to which subsection (a) applies." Id. § 175b(d)(1). Finally, turning to the language of § 175b's subsection (a) at the time of Petitioner's indictment,

No restricted person shall ship or transport in or affecting interstate or foreign commerce, or possess in or affecting interstate or foreign commerce, any biological agent or toxin, or receive any biological agent or toxin that has been shipped or transported in interstate or foreign commerce, if the biological agent or toxin is listed as a non-overlap or overlap select biological agent or toxin in sections 73.4 and 73.5 of title 42, Code of Federal Regulations, pursuant to section 351A of the Public Health Service Act, and is not excluded under sections 73.4 and 73.5 or exempted under section 73.6 of title 42, Code of Federal Regulations.

Id. § 175b(a)(1). The Court finds that the statute enumerated above—that was in effect at the time of Petitioner's offense and subsequent indictment—criminalized the unregistered possession of ricin. For the reasons set forth herein, Petitioner fails to state a cognizable claim for relief. Accordingly, the Court DENIED Petitioner's § 2255 Motion. ECF No. 40.


A brief description of the material facts follows: In March and April of 2016, officers of the Virginia Beach Police Department searched Petitioner's storage unit located on Dam Neck Road in Virginia Beach. Presentence Investigation Report ("PSR"), ECF No. 34, ¶ 1. Said storage unit was held in Petitioner's name and paid for with her credit card. Id. In addition, Petitioner was the only one observed entering and departing the unit based on surveillance video of the area. Id. Officers recovered several items from the unit, including liquid chemicals, syringes, packages of castor plant seeds, and three firearms. Id. ¶ 2. One of the firearms was a Charter Arms .38 caliber revolver with an obliterated serial number. Id. In addition, one of the liquid chemicals was held in a container that had been wrapped in towels and double-wrapped in plastic bags, along with latex gloves. Id.

Chemical samples obtained from the storage unit were sent to a state laboratory for testing and were then sent for additional testing at federal laboratory in Maryland. Id. ¶ 3. The federal laboratory identified the substance held in the double-wrapped container to include ricin and also determined that traces of ricin were on the syringes. Id. According to the Statement of Facts,

Ricin is a highly dangerous toxin that occurs naturally in castor seeds. It can be derived from castor seeds using several methods, and there is no known antidote to ricin poisoning

. Because it has been determined to have the potential to pose a severe health threat, ricin is listed as a "select agent" by the U.S. Department of Health and Human Services. Before they can possess ricin, individuals must comply with certain select agent registration requirements, including requirements under section 351A(c) of the Public Health Service Act.

Id. ¶ 4. Petitioner had not obtained the requisite registration to possess ricin. Id. ¶ 5. A forensic examination of Petitioner's phone revealed a web history of viewing articles titled, "Caffeine Powder Poses Deadly Risks"; "Why is Powdered Caffeine Dangerous?"; "Pure Caffeine Powder: What You Need to Know?"; and "Death by Caffeine Powder." Id. ¶ 7. According to case agents, powdered caffeine was also recovered from Petitioner's storage unit. Id.

On April 18, 2018, Petitioner was named in a two-count criminal indictment charging her with Possession of an Unregistered Biological Agent or Toxin (Ricin), in violation of 18 U.S.C. § 175b(c)(1) (Count One), and Possession of a Firearm with an Obliterated Serial Number, in violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B) (Count Two). ECF No. 3. On September 18, 2018, Petitioner appeared before the Court and pled guilty to Count One pursuant to a written plea agreement with the Government. ECF No. 18. On January 14, 2019, this Court sentenced Petitioner to a term of thirty-five (35) months. ECF No. 32. Supervised release was set for a three-year term. Id. at 3.

On January 13, 2020, Petitioner filed her § 2255 Motion and accompanying Letter Motion to Proceed in Forma Pauperis. ECF Nos. 39, 40. On March 20, 2020, the Court ordered the Government to respond to Petitioner's § 2255 Motion within sixty (60) days from the date therein and denied Petitioner's Letter Motion to Proceed in Forma Pauperis as moot. ECF No. 43.

On May 5, 2020, Petitioner filed a Motion for Compassionate Release, ECF No. 48, and the Court established a briefing schedule for the same, thereby appointing the FPD to represent Petitioner in her compassionate release proceedings, ECF No. 49. However, citing a conflict of interests due to Petitioner's pending § 2255 Motion, the FPD filed a Motion to Withdraw on May 12, 2020. ECF No. 51.

By Order dated May 19, 2020, the Court advised the parties that the case of United States v. Jordan, No. 4:18-CR-163 JM, 2020 WL 1531367, at *1 (E.D. Ark. Mar. 30, 2020) had been brought to the Court's attention. ECF No. 52. In Jordan, the United States District Court for the Eastern District of Arkansas granted the defendant's Motion to Dismiss the Indictment—as the defendant had been indicted under the same statute applicable in the instant case, 18 U.S.C. § 175b —based on the contention that ricin was not listed in the Code of Federal Regulations ("C.F.R.") as a select agent at the time of his indictment. 2020 WL 1531367, at *2. Additionally, Jordan appended United States v. Gibbs thereto, in which the District Court for the Northern District of Georgia similarly concluded that an indictment under 18 U.S.C. § 175b could not proceed on the basis of unregistered possession of ricin. 2:17-cr-00005-RWS-JCF (N.D. Ga. Sept. 21, 2018) (Doc. No. 71).

Based on the persuasive reasoning contained therein that appeared to support Petitioner's request for relief in her § 2255 Motion, the Court appointed Mr. Jamison Rasberry as counsel for Petitioner. ECF No. 52. In addition, the Court set an expedited briefing schedule, thereby requiring the Government to respond within seven (7) days of the date therein. Moreover, the Court advised Petitioner that she could file a reply, if any, within seven (7) days after service of the response of the United States. Id. Finally, the Court took under advisement Petitioner's Motion for Compassionate Release and the FPD's Motion to Withdraw pending resolution of Petitioner's § 2255 Motion. Id.

The Government filed its Response on May 26, 2020, ECF No. 55, and Petitioner filed her Reply on June 2, 2020, ECF No. 57. The Court conducted an evidentiary hearing on Petitioner's § 2255 Motion on June 11, 2020. At said hearing, Mr. Alan Salsbury and Mr. Andrew Bosse appeared on behalf of the Government, while Mr. Jamison Rasberry appeared on behalf of Petitioner. Petitioner was also present at said hearing. At said hearing, the Court heard argument from both Mr. Salsbury and Mr. Rasberry. Although the Government subpoenaed Ms. Suzanne Katchmar, Petitioner's former defense counsel, to appear at the hearing, Ms. Katchmar did not testify, as her affidavit was not contested. Petitioner did not testify at said hearing.

By Order dated June 11, 2020, the Court denied Petitioner's § 2255 Motion, while indicating that a memorandum opinion would subsequently be filed. ECF No. 59. This Memorandum Opinion sets forth the reasons for the Court's ruling.


Collateral review created by 28 U.S.C. § 2255 allows a prisoner in federal custody to challenge the legality of a federal sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing Court lacked jurisdiction; (3) the sentence imposed was in excess of the maximum amount authorized by law; or (4) the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255. On such grounds, the petitioner may move the court to vacate, set aside, or correct a sentence. The Supreme...

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