United States v. Le

• Decision Date: 27 August 2018
• Docket Number: August Term 2017,No. 16-819-cr,16-819-cr
• Citation: 902 F.3d 104
• Parties: UNITED STATES of America, Appellee, v. Cheng LE, aka William Lee, aka Daniel Chunn, aka Steven Phanatasio, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

902 F.3d 104

UNITED STATES of America, Appellee,

v.Cheng LE, aka William Lee, aka Daniel Chunn, aka Steven Phanatasio, Defendant-Appellant.

No. 16-819-cr

August Term 2017

United States Court of Appeals, Second Circuit.

Argued: May 14, 2018

Decided: August 27, 2018

Andrew D. Beaty, Assistant United States Attorney (Ilan Graff, Won S. Shin, Assistant United States Attorneys, on the brief ), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, New York, for Appellee.

Tina Schneider, Law Office of Tina Schneider, Portland, Maine, for Defendant-Appellant.

Before: Sack and Raggi, Circuit Judges, Gardephe, District Judge.^*

Reena Raggi, Circuit Judge

Defendant Cheng Le stands convicted after a jury trial in the United States District Court for the Southern District of New York (Alison J. Nathan, Judge ) of three crimes: (1) attempting to acquire the lethal biological toxin ricin in violation of the Biological Weapons Anti-Terrorism Act of 1989 (the "Biological Weapons Act"), Pub. L. No. 101–298, 104 Stat. 201 (1990) (codified as amended at 18 U.S.C. §§ 175 – 178 (2002) ); (2) using a false name to conduct the aforementioned unlawful activity by means of the United States Postal Service in violation of 18 U.S.C. § 1342 ; and (3) aggravated identity theft in connection with his Biological Weapons Act crime in violation of 18 U.S.C. §§ 1028A and 2. Le here appeals his conviction, arguing through counsel that (1) principles of federalism preclude construing the Biological Weapons Act to reach his criminal conduct, which was intended only to facilitate "local" murder, Bond v. United States , 572 U.S. 844, 134 S.Ct. 2077, 2083, 189 L.Ed.2d 1 (2014) ; and (2) in any event, the statute is unconstitutional both on its face and as applied in this case. In a separate pro se submission, Le also complains of ineffective assistance by trial counsel.

For reasons explained herein, we conclude that Le's counseled arguments fail on the merits. Le's pro se ineffective assistance claim is more properly the subject of collateral review and, thus, we decline to address it on direct appeal. Accordingly, we affirm the judgment of conviction on all counts.¹

BACKGROUND

I. The Prosecution Case

A. Le Orders Ricin on the Dark Net

Over the course of several weeks in December 2014, defendant Le, a self-styled broker of luxury goods between the United States and China, repeatedly accessed a "Dark Net" marketplace in an attempt to acquire ricin, a biological toxin derived from the seeds of the castor oil plant. Ricin is lethal in even small doses when ingested, injected, or simply inhaled. It has no known antidote and is generally undetectable in autopsies.

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.

Le's first Dark Net communication about ricin occurred on December 3, 2014, when, using the moniker "WhenInDoubt," he initiated contact with a vendor operating under the moniker "Dark_Mart" and asked: "Any ways[,] this might sound blunt but do you sell ricin?" Trial Tr. at 51–52. Le explained that he had seen several Dark Net listings suggesting that Dark_Mart had ricin in stock. What Le did not then know was that Dark_Mart was an online identity assumed by Mark Walker, an online covert employee of the Federal Bureau of Investigation.

Between December 3 and 22, 2014, Le exchanged more than two dozen encrypted messages with Walker in which Le held himself out as a broker acting on behalf of persons interested in acquiring ricin. Le stated that he was seeking a source of "good quality" ricin "ASAP" and that he "already had buyers lining up" for the product. Id. at 55. Le stated that "three to five lethal doses would be enough," adding that a client might want Walker's "professional opinion" on "how death would end up looking ... under forensic examination." Id. at 59. Le would subsequently describe the client's intended victim as a middle-aged, 200-pound male.

Le specifically solicited Walker's advice about administering ricin both by injection and ingestion. As to the former, Le queried whether "kill[ing]" a target with a ricin injection while he was hospitalized would avoid suspicion because "hospitalized people already have needles in them." Id. at 61–62. Later, after confirming with Walker that ricin had no antidote and did not appear in autopsies, Le described a plan for ricin's ingestion through "capsules," "pills," or "tablets" "disguise[d] as medicine." Id. at 67. A single ricin pill could be added to "a bottle of normal pills" that looked "identical," so that when "the target takes the medicine every day, sooner or later he'd ingest that poisonous pill and die." Id. Thus, Le observed, "[e]ven if there is a murder investigation, they won't find any more toxin"; the plan was "100 percent risk-free." Id.

Le told Walker that "simple and easy death pills" would "become best sellers." Id. Indeed, he declared that "it is death itself we're selling here, and the more risk-free, the more efficient we can make it, the better." Id. at 68. Toward that end, Le said he would be "trying out new" ricin delivery "methods in the future." Id.

B. Le Orders Ricin in the Name Daniel Chunn and Arranges for Delivery by Mail

Following these exchanges, on December 18, 2014, Le—now using the moniker "fnufnu"—placed an order with Walker for "one bottle of [vitamin] pills with one poisonous pill in there." Id. at 74.² Le instructed Walker to add an ultraviolet chemical to the ricin pill so that it could be identified by blacklight. Le also ordered some "extra loose powder/liquid ricin"—"[e]nough to poison some small animals will be good"—so that he could "test something out." Id. Le agreed to pay for the order with the equivalent of $300 in Bitcoin,³ and directed Walker to make delivery by mail addressed to "Daniel Chunn" at a Manhattan location.

Daniel Chunn is, in fact, the name of a Texas resident who had lost his wallet in March 2013 and reported identity theft to the authorities in the summer of that year. Chunn had never been in New York and had no familiarity with Le, the Dark Net, or the monikers "WhenInDoubt" and "fnufnu."

C. The Controlled Delivery to Le

Investigation revealed that the Manhattan delivery address Le provided to Walker belonged to a UPS store, and that Le picked up mail from a post office box at that location. After surveilling Le visiting the UPS store, FBI agents prepared for a controlled delivery of the December 18 ricin order to that location. The package, which was sent via the United States Postal Service, contained a vitamin bottle that substituted a sham ricin pill for the ordered toxin, as well as a vial of sham ricin powder hidden inside a flashlight.

On December 23, 2014, FBI agents watched Le enter the UPS store. As observed on other occasions, he was wearing latex gloves. At the store, Le retrieved the controlled delivery package, opened it, discarded the shipping material, and carried the contents back to his nearby apartment. Soon after Le returned to his apartment, FBI agents entered the premises pursuant to a search warrant and arrested Le. In the ensuing search of Le's apartment, agents recovered the controlled-delivery pill bottle—now opened—containing the sham ricin pill, as well as the flashlight containing the vial of sham ricin powder. They also seized a quantity of castor seeds that had not been part of the delivery. The agents took photographs of Le's laptop computer, which showed that the device was then logged into Le's personal email account as well as to the Dark Net accounts for WhenInDoubt and fnufnu.

II. The Defense Case

Testifying in his own defense, Le denied any knowledge that ricin was being sent to him, and stated that a shipping associate, whom he identified as "Michael Lin," had used the laptop computer photographed by agents at the time of Le's arrest.

III. Conviction

On August 27, 2015, a jury found Le guilty on all three counts charged. On March 8, 2016, the district court sentenced Le to a total of 192 months' (i.e. , 16 years') incarceration to be followed by five years' supervised release, and imposed a $300 special assessment. This timely appeal followed.

DISCUSSION

I. Biological Weapons Act Challenges

A. Standard of Review

Le argues that his conviction must be vacated because (1) principles of federalism do not permit the Biological Weapons Act to be construed to reach his "purely local" criminal conduct, Bond v. United States, 134 S.Ct. at 2083 ; and (2) in any event, that statute is unconstitutional both on its face and as applied.

Le acknowledges that he did not raise these arguments before the district court. Thus, we review only for plain error. See Fed. R. Crim. P. 52(b) ; United States v. Rybicki , 354 F.3d 124, 128–29 (2d Cir. 2003) (en banc ) (applying plain error review to constitutional vagueness challenge); United States v. Santiago , 238 F.3d 213, 215 (2d Cir. 2001) (applying plain error review to claim that criminal statute exceeded Congress's Commerce Clause authority). Le cannot avoid plain error review by recasting his statutory challenges as a jurisdictional argument that the indictment in his case failed to state a crime. See United States v. Yousef , 750 F.3d 254, 260 (2d Cir. 2014) ("[A]ppeals that call into question the...