U.S. v. Bond, 08-2677.

• Citation: 581 F.3d 128
• Decision Date: 17 September 2009
• Docket Number: No. 08-2677.,08-2677.
• Parties: UNITED STATES of America v. Carol Anne BOND, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

581 F.3d 128

UNITED STATES of America v. Carol Anne BOND, Appellant.

No. 08-2677.

United States Court of Appeals, Third Circuit.

Argued March 23, 2009.

Opinion Filed: September 17, 2009.

Robert E. Goldman, Esquire, (Argued), Fox Rothschild, Warrington, PA, Eric E. Reed, Esquire, Fox Rothschild, Philadelphia, PA, Counsel for Appellants.

Laurie Magid, Acting United States Attorney, Paul G. Shapiro, (Argued), Assistant United States Attorney, Office of the United States Attorney, Philadelphia, PA, Counsel for Appellees.

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

OPINION OF THE COURT

AMBRO, Circuit Judge.

Carol Anne Bond pled guilty to two counts of possessing and using a chemical weapon, and two counts of mail theft, in connection with her efforts to harm a former friend. She now appeals the District Court's pretrial order denying her motions to dismiss the charges against her and to suppress evidence. She also challenges her sentence. For the reasons that follow, we affirm each of the Court's actions.

I. Factual and Procedural Background

Bond was excited when her closest friend, Myrlinda Haynes, announced that she was pregnant. Bond's excitement turned to rage when she learned that her husband, Clifford Bond, was the child's father. She vowed revenge.

Planning to poison Haynes, Bond (a trained microbiologist) stole a quantity of 10-chloro10H-phenoxarsine from her employer, the chemical manufacturer Rohm and Haas, and ordered over the Internet a vial of potassium dichromate. These chemicals have the rare ability to cause toxic harm to individuals through minimal topical contact.¹

Bond attempted to poison Haynes with the chemicals at least 24 times over the course of several months. She often would spread them on Haynes's home doorknob, car door handles, and mailbox. Haynes noticed the chemicals and usually avoided harm, but on one occasion sustained a chemical burn to her thumb.

Haynes called her local police about the chemical attacks. They suggested that the substance might be cocaine and told Haynes to clean her car and door handles on a regular basis. Unsatisfied (to say the least) with this response, Haynes complained to her local postal carriers about the chemicals on her mailbox. They referred the matter to the United States Postal Inspection Service.

Based on Haynes's complaint, postal inspectors placed surveillance cameras in and around Haynes's home. These cameras captured Bond opening Haynes's mailbox, stealing a business envelope, and placing potassium dichromate inside Haynes's car muffler. They specifically showed Bond going back and forth between her car and Haynes's with the chemicals.

After testing the chemicals that Bond placed in Haynes's muffler, postal inspectors attempted to trace their origin to the Rohm and Haas center where Bond worked as a technical assistant. The inspectors determined that nearly four pounds of potassium dichromate were missing from a common storage area to which Bond had access.

With this information, the inspectors sought and received an arrest warrant for Bond and search warrants for her car and home. They supported their warrant requests with an affidavit detailing the gathered evidence, including the videotaped footage, results of the chemical analyses, and the report of the missing chemicals. The affidavit also explained Bond's responsibilities at Rohm and Haas, described her car and home, and noted that Haynes had identified Bond from a photo array.

Postal inspectors arrested Bond and took her to a holding cell in the Philadelphia Post Office. Once there, Bond acknowledged and waived her constitutional rights, and admitted to taking the chemicals from Rohm and Haas. Meanwhile, other inspectors executed the search warrants, finding a piece of Haynes's mail and amounts of the chemicals in Bond's home and car.

A grand jury in the Eastern District of Pennsylvania charged Bond with two counts of possessing and using a chemical weapon, in violation of 18 U.S.C. § 229(a)(1), a criminal statute implementing the treaty obligations of the United States under the 1993 Chemical Weapons Convention. The grand jury also charged Bond with two counts of mail theft, in violation of 18 U.S.C. § 1708.

Bond moved to suppress certain evidence and to dismiss the two chemical weapons charges. She claimed that the affidavits supporting the search warrants failed to establish probable cause to search her home and car, and she argued that 18 U.S.C. § 229 is unconstitutional because it violates principles of federalism embodied in our Constitution and the fair notice requirements of its Due Process Clause.

The District Court denied Bond's motions. It ruled that § 229 did not impinge on principles of federalism because it "was enacted by Congress and signed by the President under the necessary and proper clause of the Constitution ... [to] comply with the provisions of a treaty." App. 168. The Court next concluded that "the statute is not vague, [because] it is clear that if anybody uses a toxic chemical for other than peaceful purposes, th[at] person can be prosecuted." Id. at 169. It ruled as well that "the search warrants were properly issued," because sufficient evidence existed to permit a "probable cause conclusion that a substantial amount of potassium dichromate would probably be found in [Bond's] vehicle or where she lived." Id. at 170-72.

Following the Court's denial of her motions, Bond pled guilty to all charges, reserving her right to appeal. The Court then held a sentencing hearing at which it enhanced Bond's total offense level by two levels based on a determination under U.S.S.G. § 3B1.3 that she used a special skill in the commission or her offense. The Court ultimately sentenced Bond to six years' imprisonment, five years of supervised release, a $2,000 fine, and restitution of $9,902.79. Bond appeals.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

We review de novo a challenge to the constitutionality of a criminal statute. See De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 635 (3d Cir.2002). We consider "denial of a motion to suppress for clear error as to the underlying factual findings and exercise[ ] plenary review of the District Court's application of the law to those facts." United States v. Perez, 280 F.3d 318, 336 (3d Cir.2002). We likewise review de novo the District Court's interpretation of the Sentencing Guidelines and consider its related findings of fact for clear error. See United States v. Wood, 526 F.3d 82, 85 (3d Cir.2008).

III. Discussion

Bond claims that (1) 18 U.S.C. § 229 is unconstitutional, (2) the search warrants for her home and car were invalid, and (3) her conduct did not justify a sentence enhancement for using a special skill in the commission of a crime. We reject each of these claims.

A. Constitutionality of 18 U.S.C. § 229

The United States, along with many other nations, signed the Chemical Weapons Convention in 1993 to ensure "the complete and effective prohibition of the development, production, acquisition, stockpiling, retention, transfer and use of chemical weapons...." 32 I.L.M. 800, 804 (1993). This treaty states, among other things, that each signing nation "shall[,] in accordance with its constitutional process, adopt the necessary measures to implement its obligations under this Convention." Id. at 810. It specifically requires a complying nation to "[p]rohibit natural and legal persons anywhere on its territory ... from undertaking any activity prohibited ... under this Convention, including enacting penal legislation with respect to such activity." Id.

The United States fulfilled its responsibilities under the treaty through the Chemical Weapons Convention Implementation Act of 1998, 22 U.S.C. § 6701, and the Act's associated penal provision, 18 U.S.C. § 229. In relevant part, § 229 reads (a) Unlawful Conduct—Except as provided in subsection (b), it shall be unlawful for any person knowingly—

(1) to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon; or

(2) to assist or induce, in any way, any person to violate paragraph (1), or to attempt to conspire to violate paragraph (1).

18 U.S.C. § 229(a). "Chemical weapon" is defined as a "toxic chemical and its precursors, except where intended for a purpose not prohibited under this chapter as long as the type and quantity is consistent with such a purpose." Id. at § 229F(1)(A). "Toxic chemical" is defined in part as "any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals." Id. at § 299F(8)(A). Importantly, § 229 neither has a requisite federal interest element (i.e., a requirement that an offender's conduct affect interstate commerce or a federal person, possession, or interest) nor states a basis for its enactment beyond the Chemical Weapons Convention (i.e., it does not assert authority under the Commerce Clause or other constitutional provision).

Based on this framework, Bond asserts that § 229 violates constitutional principles of federalism because it is not "based on a valid exercise of constitutional authority," and does not "require proof of a federal interest." Bond's Br. at 10. She also claims that the provision is unconstitutionally vague and overbroad "by virtue of its enormous scope" and its failure to "provide fair notice" of the conduct covered by its terms. Id. at 28.

1. Federalism Challenge

"Under our federal system[,] the administration of criminal justice rests with the States except as Congress, acting within the scope of [its] delegated powers, has created offenses against the United States." Screws v. United States, 325 U.S. 91, 109, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). Bond contends that, by permitting p...