United States v. Ryan
| Citation | 428 F.Supp.3d 31 |
| Decision Date | 20 December 2019 |
| Docket Number | 18-cv-152-jdp |
| Parties | UNITED STATES of America, Plaintiff, v. Jeremy J. RYAN, Defendant. |
| Court | U.S. District Court — Western District of Wisconsin |
Charles Sheppard, Jr., Fox Lake, WI, pro se.
Brandon Flugaur, Wisconsin Department of Justice, Madison, WI, Wisconsin Department of Justice_1983 actions, for Defendant.
Defendant Jeremy J. Ryan attempted to purchase a lethal dose of polonium-210 from a vendor on the "dark web." But the vendor turned out to be an FBI agent, and now Ryan is charged with two crimes: (1) knowingly and unlawfully attempting to possess "radioactive" material with the intent to cause death or serious bodily injury, in violation of 18 U.S.C. § 2332i ; and (2) intentionally and unlawfully attempting to possess "nuclear" material in violation of 18 U.S.C. § 831. Dkt. 107.
Ryan has moved to dismiss both charges in a string of seven motions. Dkts. 63–65 and 136–39. Ryan contends that § 2332i and § 831 shouldn't be construed as reaching his conduct and that both statutes are unconstitutional. He also moves to compel the government to produce the grand jury instructions, Dkt. 66; for a bill of particulars, Dkt. 67; and for the court to appoint a linguistics expert, Dkt.140.
I will deny all of Ryan's motions. As for Ryan's request to appoint an expert to aid with interpreting §§ 831 and 2332i, the meaning of a statute is a question of law to be determined by the court. See Negusie v. Holder, 555 U.S. 511, 530, 129 S.Ct. 1159, 173 L.Ed.2d 20 (2009) (). I am not persuaded that appointing an expert is either necessary or appropriate. See Ball v. Kotter, 723 F.3d 813, 825 (7th Cir. 2013) .
Several of Ryan's motions rest on Ryan's contention that was trying to obtain polonium-210 to kill himself, not another person. The government hasn't stipulated to that Ryan's purpose was suicide, so I could not grant relief to Ryan on that basis. But even if Ryan's intent was suicide rather than murder, I could not dismiss the indictment because both § 831 and § 2332i, by their terms, encompass self-harm as well as harm to others. Ryan's requests for grand jury instructions and a bill of particulars are contingent on a conclusion that § 2332i doesn't reach suicide, so I will deny those motions as moot.
Ryan's constitutional challenges fail as well. Ryan contends that § 831 and § 2332i violate the Tenth Amendment because their enactment was not a proper exercise of Congress's enumerated powers and the statutes intrude on state sovereignty. But both statutes are proper exercises of Congress' authority under the Commerce Clause. Under well-established law, Congress has the authority to regulate markets by prohibiting or restricting possession of items that implicate national interests. Moreover, § 2332i is a direct implementation of an international treaty, so that statute is also authorized by Congress's power to enact legislation that is "necessary and proper" to carry out the President's treaty power. The federal government's regulation of polonium-210, which Ryan concedes is rare and dangerous, does not intrude on a function generally reserved to the states.
Ryan also contends that the charge under § 831(a)(1)(B) violates his right to due process because the statute is unconstitutionally vague under principles in Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015). But for reasons explained in the opinion, Johnson has no bearing on this case. Ryan had fair notice that § 831(a)(1)(B) prohibited his conduct.
Most of the pertinent facts cited by the parties come from email exchanges between Ryan and an undercover FBI agent. I provide a summary those exchanges and background facts which appear to be undisputed.
Hamish Kidd, "Polonium-210: A deadly element."2
Ryan wrote that he was The agent responded that if someone ingested polonium-210, they would "die quickly," but it would look like they "just g[o]t sick." The agent also wrote that polonium-210 is "very deadly inside [the] body," but is "safe" when kept in the vial. He asked Ryan for the height, weight, and sex of the "target" so that he could make a "lethal custom dose."
Ryan asked many questions about the effects of polonium-210, including whether they would mimic the effects of cancer
. The agent responded that death from polonium-210 "would look very much like end stage of cancer," causing heart and lung failure. Ryan wrote that the "target" has "a type of cancer that will keep coming back" and wants to die, so "the target is going to knowingly take it." And he asked the agent to make the dose "as strong as you can so he will at least have a day before he gets sick but so him getting sick is as quick and painless as possible." But Ryan also wrote,
In October 2018, Ryan placed an order for polonium-210, paying with bitcoin. The agent informed Ryan that he shipped the package to the address that Ryan provided. The agent also gave Ryan instructions for handling the package, telling him not to open the vial "until time of attack for ur safety," to wear gloves when he opened the vial, to pour the vial in food or drink, to put the lid back on the vial, and to dispose of it "somewhere else."
A few days later, Ryan picked up the package. He was arrested shortly thereafter.
Ryan challenges the charge under § 2332i both on the ground that the statute doesn't apply to his conduct and on the ground that the statute is unconstitutional. Courts have a "general duty to avoid federal constitutional issues if the matter can be resolved on other grounds," Gibson v. American Cyanamid Co. , 760 F.3d 600, 608 (7th Cir. 2014), which suggests that I should begin with statutory interpretation arguments. Ryan admits that his statutory interpretation arguments rest on a finding of fact that he wanted to use the polonium-210 to kill himself rather than another person, a point that the government hasn't conceded. Dkt. 131, at 1.
For example, the government points to Ryan's statement that he wanted to use polonium-210 to "tak[e] someone out" and that he "would love to use" polonium-210 on "people that have fucked [him] over." So the record isn't completely one-sided on this issue. But even if it were, "[c]hallenging an indictment is not a means of testing the strength or weakness of the government's case, or the sufficiency of the government's evidence," United States v. Moore, 563 F.3d 583, 586 (7th Cir. 2009) (internal quotations omitted), so I couldn't resolve a factual dispute prior to trial (no matter how weak the government's position), a point that Ryan concedes. See Dkt. 116, at 3.
So even if I agreed with Ryan that § 2332i doesn't apply to suicide, I couldn't dismiss the charge on that ground. But because the interpretation of § 2332i could have a substantial impact on the trial in this case, I will address the statutory interpretation arguments first and then consider whether § 2332i, properly construed, is unconstitutional.
The relevant portion of § 2332i states the following: "Whoever knowingly and unlawfully ... possesses radioactive material ... with the intent to cause death or serious bodily injury ... shall be fined not more than $2,000,000 and shall be imprisoned for any term of years or for life." 18 U.S.C. § 2332i(a)(1) and (c). Subsection (3) extends the prohibition to attempts to commit the offense.
Ryan makes two basic arguments about the scope of § 2332i. His first argument is that the statute doesn't apply to suicide, which he says was his purpose. His second argument is that § 2332i should be construed so that it does not apply to "purely local crimes" that don't involve "nuclear terrorism," such as his own suicide attempt. This argument rests heavily on Bond v. United States , 572 U.S. 844, 134 S.Ct. 2077, 189 L.Ed.2d 1 (2014), in which the Court held that a statute prohibiting the possession or use of "any chemical weapon" didn't apply to "an amateur attempt by a jilted wife to [use two chemicals to] injure her husband's lover, which ended up causing only a minor thumb burn readily treated by rinsing with water." Id. at 848, 134 S.Ct. 2077.
Section 2332i doesn't expressly exclude suicide. The statute says that the defendant must have "the intent to cause death or serious bodily injury," but it doesn't say that the death or injury must be of another person. Ryan's argument that § 2332i should be read as excluding self-harm rests on the word "unlawfully." His argument has two premises: (1) "unlawfully" modifies both "possesses" and "intent," which means that "Ryan's possession must be unlawful and his purpose must also be unlawful," Dkt. 79-2, at 71; and (2) suicide isn't a crime in...
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