United States v. Levenderis

• Citation: 806 F.3d 390
• Decision Date: 12 November 2015
• Docket Number: No. 14–4004.,14–4004.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jeff Boyd LEVENDERIS, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

806 F.3d 390

UNITED STATES of America, Plaintiff–Appellee,

v.Jeff Boyd LEVENDERIS, Defendant–Appellant.

No. 14–4004.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 8, 2015.

Decided and Filed: Nov. 12, 2015.

ARGUED:Amy R. Mohan, Sherrard & Roe, PLC, Nashville, Tennessee, for Appellant. Aditya Bamzai, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF:Amy R. Mohan, Ryan T. Holt, Sherrard & Roe, PLC, Nashville, Tennessee, for Appellant. Aditya Bamzai, United States Department of Justice, Washington, D.C., Matthew W. Shepherd, United States Attorney's Office, Cleveland, OH, for Appellee.

OPINION

GRIFFIN, Circuit Judge.

Fifteen years ago, defendant Jeff Levenderis produced ricin in his kitchen and stored it in his freezer. Levenderis intended to use the ricin for various purposes, including an elaborate suicide plot in which he would light his house on fire and hang bottles of ricin in the doorway to prevent firefighters from entering his home. The federal government prosecuted Levenderis for possessing a biological toxin for use as a weapon in violation of 18 U.S.C. § 175(a). On appeal, Levenderis argues that, in light of the Supreme Court's recent decision in Bond v. United States,––– U.S. ––––, 134 S.Ct. 2077, 189 L.Ed.2d 1 (2014), the federal prohibition on biological weapons does not apply to his allegedly “purely local” conduct. We disagree and affirm.

I.

Sometime around 2000 when he was approximately 44 years old, Jeff Levenderis obtained a handful of castor beans. Using a “recipe” he found on the Internet, he ground the beans into a fine powder, which he further distilled in an acetone solution. The end result was a “high-grade” form of ricin: a deadly toxin capable of killing every cell it comes in contact with. Levenderis divided the finished product into three pill bottles, which he stored in a coffee can in his freezer. The coffee can remained in defendant's freezer until an FBI HAZMAT team removed it in January 2011.

The FBI discovered Levenderis' ricin activities through a series of unfortunate, health-related events in his life. In the fall of 2010, he fell ill, was hospitalized, and was later admitted to a long-term nursing facility. While Levenderis was away, an acquaintance, Robert Coffman, agreed to help him with the upkeep of his house. After roughly two months, Levenderis asked Coffman to check whether a coffee can was still in the freezer and, if so, not to disturb it. Coffman reported back that it was, and defendant eventually disclosed to him that the can contained ricin. After discussing various ways to dispose of it, the two decided to contact the fire department. On January 24, 2011, Coffman made inquiries with the local fire department. Within thirty minutes, Coffman received a phone call from the FBI.

The same day, the FBI visited Levenderis at his nursing home. Three agents arrived at the nursing home and saw defendant standing in the hallway near the door to his room. They identified themselves as FBI agents and asked if they could speak with him. All four proceeded into his room, where defendant laid down on his bed, and the agents sat in chairs in various parts of the room. When asked whether there was a dangerous substance in his freezer, defendant said that he had made ant poison using a recipe he found on the Internet. The agents asked whether he ever told Coffman it was ricin; defendant said that if he did, he was only joking. After being advised that lying to the FBI is a federal offense, defendant still maintained that the substance was ant poison.

Agents interviewed defendant again on January 27, 2011. Before agents could ask defendant any questions, he reiterated that the substance was ant poison, not ricin. He then asked to make a few phone calls, which the agents allowed him to do. Following the phone call, defendant indicated that he wanted to have an attorney present. The agents ended the interview and left.

Later that afternoon, defendant visited the FBI field office with his attorney, Hank Meyer, and Coffman “to clear up a few things about [his] previous interviews.” During the interview, defendant admitted that the substance “was actually a high-grade, weaponized form of ricin....” Defendant stated that he thought about using the ricin as part of an elaborate suicide plan in which he would light his house on fire, hang bottles of ricin in each doorway, and put signs up indicating the bottles contained ricin in order to prevent firefighters from entering the home and putting out the fire. He also mentioned using it as a way to threaten his cousin, with whom he was feuding, from coming to his house. In addition, the FBI learned that defendant also intended to poison his step-father, with whom he had disputes over inheritance and financial matters, by putting ricin in a bowl of soup.

Meanwhile, an FBI HAZMAT team extracted the coffee can from the freezer and, after conducting various tests, determined that it contained 35.9 grams of ricin, enough to kill over 250 people.

A federal grand jury indicted defendant on four counts: (1) knowingly developing, producing, stockpiling, retaining, and possessing a biological toxin and delivery system (ricin) for use as a weapon, 18 U.S.C. § 175(a); (2) knowingly possessing a biological toxin and delivery system (ricin) that was not in its naturally occurring form and was of a type and quantity that, under the circumstances, was not reasonably justified by a peaceful purpose, 18 U.S.C. § 175(b); and (3) and (4) willfully and knowingly making a materially false, fictitious, and fraudulent statement to the FBI during the January 24 and 27, 2011, interviews that the substance found was ant poison, not ricin, 18 U.S.C. § 1001(a)(2).

Before trial, defendant filed a motion to suppress his statements to FBI agents. He argued that the interviews constituted custodial interrogations that were not preceded by Miranda¹warnings. Following an evidentiary hearing at which two of the interviewing agents testified, the magistrate judge recommended the motion be denied because defendant was not “in custody” for purposes of Miranda.The district court adopted the recommendation over defendant's objections, ruling that, under the totality of the circumstances, a reasonable person would have felt free to terminate the interviews.

Defendant also filed a pre-trial motion to exclude unreliable expert testimony regarding the tests used to determine whether the substance recovered was ricin. Defendant argued that the three tests conducted by the government's experts—the ELISA test, the CFT assay, and the MALDI–TOF mass spectrometric analysis—were unreliable and, therefore, the expert testimony should be excluded under Federal Rule of Evidence 702and Daubert v. Merrell Dow Pharmaceuticals, Inc.,509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The district court conducted a three-day Dauberthearing, during which defendant withdrew his challenge to the ELISA and CFT tests, conceding that his objection went to “[the] weight rather than admissibility and [was] not a Daubertmatter.” At the close of the Dauberthearing, the government decided to withdraw the MALDI–TOF test results and to conduct a fourth test—tandem mass spectrometry

analysis—that defendant argued was more reliable. That test confirmed definitively that the substance was ricin.

The case proceeded to trial and the jury found defendant Levenderis guilty on all four counts. Before the verdict, however, defendant filed a motion for a judgment of acquittal based on the Supreme Court's decision in Bond v. United States,––– U.S. ––––, 134 S.Ct. 2077, 189 L.Ed.2d 1 (2014), which had been released two days earlier. The court denied the motion, but invited post-trial briefing on the applicability of Bond.Thereafter, the court ruled that Bonddid not require it to vacate defendant's conviction under § 175(a)because, unlike in Bond,the substance defendant possessed was inherently dangerous and had the potential to harm hundreds of people. Thus, it held that Levenderis was properly subject to federal prosecution on that count.²

The court subsequently sentenced defendant to concurrent terms of six years in prison for the biological weapons conviction and five years in prison for each false-statement conviction. Defendant timely appealed, raising three issues: (1) whether the Supreme Court's decision in Bondrequires reversal of his biological weapons conviction; (2) whether the district court erred in denying his motion to suppress; and (3) whether defendant's trial counsel provided ineffective assistance by withdrawing his Daubertchallenge to the government's scientific testing and expert witnesses. We address each in turn.

II.

A.

In his first claim on appeal, defendant challenges his conviction under 18 U.S.C. § 175(a)for possessing a biological toxin for use as a weapon, arguing that the federal statute does not apply to his allegedly “purely local” conduct. The district court treated this argument as a motion to dismiss the indictment under Federal Rule of Criminal Procedure 12(b)(3). Although the standard for reviewing such motions is “somewhat unclear,” we “generally undertake de novoreview” of “[a] district court's legal conclusions in the motion to dismiss context.” United States v. Grenier,513 F.3d 632, 635–36 (6th Cir.2008).

As with any challenge to the applicability of a statute, we begin with the statutory language. See United States v. Boucha,236 F.3d 768, 774 (6th Cir.2001)(“[T]he language of the statute is the starting point for interpretation....”) (quotation marks omitted). Subsection 175(a) provides, in pertinent part:

Whoever knowingly develops, produces, stockpiles, transfers, acquires, retains, or possesses any biological agent, toxin, or delivery system for use as a weapon, or knowingly assists a foreign state or any organization to do so, or attempts, threatens, or conspires to do the same, shall be fined under this title or imprisoned for life or any term of years, or

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