United States v. Perez

• Decision Date: 03 August 2022
• Docket Number: 21-50945
• Citation: 43 F.4th 437
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. Christopher Charles PEREZ, Defendant—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

43 F.4th 437

UNITED STATES of America, Plaintiff—Appellee,

v.Christopher Charles PEREZ, Defendant—Appellant.

No. 21-50945

United States Court of Appeals, Fifth Circuit.

FILED August 3, 2022

Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, Jeffrey Michael Smith, U.S. Department of Justice, National Security Division, Counterterrorism Section, Washington, DC, for Plaintiff-Appellee.

Bradford W. Bogan, Assistant Federal Public Defender, Maureen Scott Franco, Federal Public Defender, Federal Public Defender's Office, Western District of Texas, San Antonio, TX, for Defendant-Appellant.

Before Smith, Wiener, and Southwick, Circuit Judges.

Jerry E. Smith, Circuit Judge:

In April 2020, Christopher Perez made two posts on Facebook claiming that he had paid a friend's cousin, who was COVID-19 positive, to lick everything in two San Antonio grocery stores. The posts were false, but he was prosecuted for perpetrating a hoax biological-weapons attack. He was convicted and sentenced to fifteen months' imprisonment.

Perez appeals his conviction, maintaining that the biological-weapons statute does not extend to conduct such as licking items in a grocery store and that the terrorist-hoax statute is an unconstitutional restriction on free speech. He also points out an undisputed error in his sentencing calculation.

We reject Perez's challenges to his conviction. Although the biological-weapons statute does contain an implied exception for local crimes, Perez's purported conduct was serious enough to place him within the purview of federal law enforcement. And threats like Perez's are not protected by the First Amendment.

We thus affirm the conviction. But because the district court miscalculated his sentence, we vacate it and remand for resentencing.

I.

On April 5, 2020, shortly after COVID-19 lockdowns had been implemented throughout the United States, Perez made the following post on Facebook, referring to two grocery stores in San Antonio:

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He took the post down soon afterwards, apparently in response to a friend's suggestion that the post might expose Perez to criminal liability. But he later made a second post that he left up for at least twenty-three hours:

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The headline he was responding to read "H-E-B partner tests positive for COVID-19."

Perez had not actually paid anyone to lick anything at H-E-B, but his posts nonetheless set off alarm bells. An unknown member of the public reported the first post to law enforcement. Two FBI agents were dispatched to Perez's house to interview him. Perez admitted making the post but said that he had been "shit talking" and that the statements in the post were false. He apologized for making the post and claimed that he had been motivated by a desire to make people take stay-at-home orders more seriously.

Unmollified, the agents returned to Perez's house the next day with warrants. They searched the residence and arrested Perez. The FBI had also reached out to H-E-B. The company investigated: It tasked four employees with searching thousands of transactions to see whether two individuals identified by the FBI had made a purchase in either store Perez had mentioned. The company considered closing the stores but ultimately decided not to. There is no indication that Perez's posts caused public panic.

Perez was indicted for two violations of 18 U.S.C. § 1038(a)(1), one for each Facebook post. Section 1038(a)(1) criminalizes hoaxes simulating various other crimes. Perez's posts were alleged to simulate violations of 18 U.S.C. § 175, the prohibition on biological weapons. At trial, the government presented testimony to establish the above facts. The jury convicted Perez on both counts.

The presentence investigation report ("PSR") assigned Perez a criminal history category of III, based in part on a 2006 offense that had resulted in a sentence of deferred adjudication. The PSR recommended a sentence of 15–21 months, and Perez made no objections. The court imposed a sentence of 15 months' imprisonment, followed by three years of supervised release. Perez appeals his conviction and sentence.

II.

Perez's first challenge is a statutory one. He points to Bond v. United States , 572 U.S. 844, 134 S.Ct. 2077, 189 L.Ed.2d 1 (2014), which held that 18 U.S.C. § 229, the prohibition on chemical weapons, contains an implied exception for purely local crimes. Perez maintains that the same logic applies to § 175 and that the conduct described in his Facebook posts would have been a purely local crime and thus outside the reach of the statute. We accept Perez's first premise but not his second: Section 175 does include the same local-crime exception as does § 229, but the crime Perez claimed to have committed is nonetheless within the sweep of the statute.

The defendant in Bond had used chemicals pilfered from her employer to inflict a mild rash on a romantic rival. See 572 U.S. at 852, 134 S.Ct. 2077. That conduct appeared to constitute a violation of § 229, which prohibits the possession and use of chemical weapons. But the Supreme Court looked beyond the statutory text: It cited Gregory v. Ashcroft , 501 U.S. 452, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991), for the proposition that "overrid[ing] the usual constitutional balance of federal and state powers" requires a clear statement, Bond , 572 U.S. at 858, 134 S.Ct. 2077 (citation omitted). Section 229 contained no clear statement that Congress intended the statute to "reach purely local crimes," so the Court held that it did not apply to the defendant's conduct. Id. at 860, 134 S.Ct. 2077.

The reasoning of Bond suggests that there is an implied "local crimes" exception to § 175 as well. That statute, like § 229, lacks any clear statement implicating purely local crimes. Section 175's prohibitions apply to biological weapons rather than to chemical weapons. But the clear-statement rule articulated in Gregory and Bond is too general to depend on such a fine distinction. Bond states that "the punishment of local criminal activity" is an area of traditional state authority. Id. at 858, 134 S.Ct. 2077. That is equally true whether the local criminal activity involves biological or chemical agents.

Other courts have reached the same conclusion. The Sixth Circuit was most explicit: It noted that "both § 229 and § 175 originate in the Geneva Protocol of 1925 and both are treaty-implementing statutes." That court thus elected to "follow the Supreme Court's instruction and interpret § 175 in light of federalism principles." United States v. Levenderis , 806 F.3d 390, 397 (6th Cir. 2015). The Second and Tenth Circuits have also performed Bond analyses in § 175 cases. See United States v. Le , 902 F.3d 104, 113–14 (2d Cir. 2018) ; United States v. Hale , 762 F.3d 1214, 1224–26 (10th Cir. 2014). So has the Northern District of California. See United States v. Chamberlain , No. 14-cr-316, 2015 WL 10096591, at *2–3, 2015 U.S. Dist. LEXIS 114686, at *6–8 (N.D. Cal. Aug. 27, 2015).

The government's main response is that chemical agents are far more accessible than are biological agents. We are skeptical. Even if one is not infected with a contagious virus, a biological weapon, defined literally, might be as simple as a knife covered in bacteria. See 18 U.S.C. § 178(1) (defining "biological agent"). And even if local crimes involve chemical agents more often than do biological ones, that does not mean that Bond 's presumption would not apply to biological attacks. Bond stressed that it was a "curious case," but the Court nonetheless applied the presumption it articulated. 572 U.S. at 860, 134 S.Ct. 2077. A case involving purely local use of biological weapons might be even more curious, but that does not mean that the clear-statement rule would not apply. We thus agree with Perez that § 175, like § 229, does not apply to purely local conduct.

But that does not help Perez if, as we also conclude, the crime he claimed to commit was not purely local. Bond did not articulate any clear test for whether crimes are local, but it is possible to discern some relevant factors. Among scattered dicta , the Court listed "assassination, terrorism, and acts with the potential to cause mass suffering" as crimes that would not be implicitly excluded from federal law. Bond , 572 U.S. at 864, 134 S.Ct. 2077. Other courts have provided additional guideposts. Hale suggests that crimes are not local if they could be referred to as terrorism "in natural parlance." Hale , 762 F.3d at 1225 (quoting Bond , 572 U.S. at 861, 134 S.Ct. 2077 ). Le implies that crimes are less likely to be purely local if they involve the instrumentalities of interstate commerce, including the internet. See Le , 902 F.3d at 112. Levenderis , 806 F.3d at 397, provides perhaps the most complete standard: "[T]he question is whether the type and intended use of the biological toxin in this case brings defendant's conduct within the common and ordinary meaning of ‘biological weapon.’ "

It is not necessary to draw any bright lines in this case because Perez's purported conduct was well within the federal purview. Perez made two public posts on the internet. He claimed to have paid someone to spread COVID-19—then widely understood as a dangerous virus—over "every thing" in two grocery stores. The odds that someone would have died from exposure to Perez's friend's cousin's saliva at either H-E-B store would have been low, but not zero. Surface exposure is not impossible, and performing the attack would have required an infected individual to be in the stores and unmasked. Someone might have eaten a licked item without thoroughly washing it. And even if no one directly exposed died, that person could still have gotten sick and passed the disease onto others.

Perez points out that COVID-19 has a low death rate and is not easily transmitted through contact with surfaces. He thus suggests that licking items in grocery stores would have produced few casualties. But even if Perez knew...