ca3 reply brief bond

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No. 08-2677

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

v.

CAROL ANNE BOND,

DEFENDANT-APPELLANT.

________________

On Appeal from the United States District Court

for the Eastern District of PennsylvaniaCriminal Case No. 07-528

________________

DEFENDANT-APPELLANTS

SUPPLEMENTAL REPLY BRIEF________________

Ashley C. Parrish

Adam M. Conrad

KING & SPALDING LLP

1700 Pennsylvania Avenue, N.W.Washington, DC 20006

Telephone: (202) 737-0500

Facsimile: (202) 626-3737

[email protected]

[email protected]

Dated: October 14, 2011

Paul D. Clement

Counsel of Record

Conor B. Dugan

BANCROFT PLLC1919 M Street, NW, Suite 470

Washington, DC 20036

Telephone: (202) 234-0090

Facsimile: (202) 234-2806

[email protected]

[email protected]

Robert E. Goldman

ROBERT E. GOLDMAN LLCP. O. Box 239

Fountainville, PA 18923

Telephone: (215) 348-2605

Facsimile: (215) 348-8046

[email protected]


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ii

TABLE OF AUTHORITIES

Cases

Alden v. Maine,

527 U.S. 706 (1999) .............................................................................................17

Asakura v. City of Seattle,

265 U.S. 332 (1924) ...............................................................................................5

Bond v. United States,

131 S. Ct. 2355 (2011) .....................................................................................2, 16

Bray v. Alexandria Womens Health Clinic,

506 U.S. 263 (1993) .............................................................................................20

Brecht v. Abrahamson,

507 U.S. 619 (1993) .............................................................................................20

De Geofroy v. Riggs,

133 U.S. 258 (1890) .............................................................................................15

Gonzales v. Raich,

545 U.S. 1 (2005) ................................................................................ 2, 18, 25, 26

In re Teleglobe Communications Corp.,

493 F.3d 345 (3d Cir. 2007) .................................................................................25

Jones v. United States,

529 U.S. 848 (2000) ...................................................................................... 19, 21

Linder v. United States,

268 U.S. 5 (1925) .................................................................................................18

Mark v. Borough of Hatboro,

51 F.3d 1137 (3d Cir. 1995) .................................................................................25

Mayor of New Orleans v. United States,

35 U.S. 662 (1836) ...............................................................................................17

McCulloch v. Maryland,

17 U.S. 316 (1819) ...............................................................................................17


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Medellin v. Texas,

552 U.S. 491 (2008) ...............................................................................................7

Missouri v. Holland,

252 U.S. 416 (1920) .................................................................................. 1, 2, 8, 9

New York v. United States,

505 U.S. 144 (1992) ...................................................................................... 17, 19

NLRB v. Jones & Laughlin Steel Corp.,

301 U.S. 1 (1937) .................................................................................................20

Pareja v. United States,

615 F.3d 180 (3d Cir. 2010) .................................................................................23

Printz v. United States,521 U.S. 898 (1997) .............................................................................................17

United States v. Aguilar,

849 F.2d 92 (3d Cir. 1988) ...................................................................................25

United States v. Bond,

581 F.3d 128 (3d Cir. 2009) .......................................................................... 10, 28

United States v. Comstock,

130 S. Ct. 1949 (2010) .........................................................................................18

United States v. Ferreira,

275 F.3d 1020 (11th Cir. 2001) ..................................................................... 12, 13

United States v. Lian,

905 F. Supp. 160 (S.D.N.Y. 1995) .......................................................................13

United States v. Lopez,

514 U.S. 549 (1995) .................................................................... 17, 19, 20, 26, 28

United States v. Lue,134 F.3d 79 (2d Cir. 1998) ...................................................................... 12, 13, 14

United States v. Mitchell,

No. 094718,

2011 WL 3086952 (3d Cir. July 25, 2011). .........................................................24


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United States v. Morrison,

529 U.S. 598 (2000) .............................................................................................19

United States v. Salerno,

481 U.S. 739 (1987) .............................................................................................24

United States v. Soberon,

929 F.2d 935 (3d Cir. 1991) .................................................................................24

United States v. Stearn,

597 F.3d 540 (3d Cir. 2010) .................................................................................23

Statutes

18 U.S.C. 1203 ......................................................................................................13

18 U.S.C. 229 ............................................................................. 1, 3, 15, 22, 23, 25

18 U.S.C. 2332b(g) ...............................................................................................28

18 U.S.C. 3142(f)(1) .............................................................................................28

18 U.S.C. 3143(b)(2).............................................................................................28

Other Authorities

Bleach, Pine-Sol thrown in fight at Baltimore Co. Walmart,Baltimore Sun, Oct. 8, 2011,

available athttp://articles.baltimoresun.com/

2011-10-08/news/bs-md-co-bleach-assault-20111008_1_

hazardous-materials-pine-sol-shopping-center. .....................................................6

Brief for Intl Coalition for Copyright Prot.,

Golan v. Holder, No. 10-545 (2011) ....................................................................10

Brief for The CATO Institute, et al.,

United States v. Bond, No. 08-2677 (3rd Cir. 2011) ............................................10

Brief for the United States,

Golan v. Holder, No. 10-545 (2011) ....................................................................10


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James Wilson,

Speech to the Pennsylvania Convention (Nov. 24, 1787),

available athttp://teachingamericanhistory.org/

library/index.asp?document=1714 .......................................................................21

Laurence H. Tribe,Taking Text and Structure Seriously:

Reflections on Free-Form Method in Constitutional Interpretation,

108 Harv. L. Rev. 1221 (1995) ..................................................................... 14, 15

Oral Argument Tr.,

Bond v. United States, No. 09-1227 (2011),

available athttp://www.supremecourt.gov/

oral_arguments/argument_transcripts/09-1227.pdf .............................. 3, 6, 19, 25

Oral Argument Tr.,Golan v. Holder, No. 10-545 (2011),

available athttp://www.supremecourt.gov/

oral_arguments/argument_transcripts/10-545.pdf ...............................................11

The Federalist No. 17 (Alexander Hamilton) ................................................... 20, 21

The Federalist No. 45 (James Madison) ..................................................................19


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INTRODUCTION

AND SUMMARY OF ARGUMENT

The governments extended detour to advance a Commerce Clause argument

that it wisely and expressly abandoned years ago only underscores the fundamental

problems with its efforts to defend the application of the Chemical Weapons

Statute, 18 U.S.C. 229, to defendant Carol Bond as a valid exercise of the treaty

power. It cannot seriously be argued that Bonds prosecution is necessary to

ensure the Nations compliance with the Chemical Weapons Convention.

Commonly available chemicals are employed for malicious uses in hamlets across

the country. And state and local authorities deal with those incidents without

international protests being filed. The reason is simple: The Convention is

concerned with the warlike use of chemical weapons. The malicious use of

commonly available chemicals is not to be encouraged, but neither is it the stuff of

international treaties. Section 229 can certainly be construed consistent with the

core concerns of the Convention and core principles of our constitutional system.

But the governments effort to apply the statute to Bond is unrelated to the former

and incompatible with the latter.

The governments treaty power argument depends on a reading ofMissouri

v. Holland, 252 U.S. 416 (1920), that cannot be squared with the Courts actual

holding and reasoning or the fundamental precepts of our constitutional

government. The Supreme Court in this very case underscored the important


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liberty-securing function of the Tenth Amendment and our constitutional system of

federalism. See Bond v. United States, 131 S. Ct. 2355, 2366 (2011). There is no

reason to think that those fundamental aspects of the Constitution alone can be

overridden whenever the Senate, the President, and a foreign government agree.

Indeed, Hollandwas prescient in requiring a careful balancing of the federal and

state interests. The sheer number and scope of modern treaties mean that the

governments argument is a recipe for plenary federal power. If the statute cannot

be construed to avoid grave constitutional doubts, then it surely cannot survive a

faithful reading ofHolland.

Nor can the Commerce Clause save the governments interpretation. The

Commerce Clause is a complete misfit when it comes to Section 229. The

government was wise to abandon that argument and should be held to that

conscious strategic choice. Section 229 is part of the Chemical Weapons

Convention Implementation Act of 1998. If properly construed, it does indeed

implement the Convention; but any way you look at Section 229, it has nothing to

do with commerce. When the governments Supreme Court advocate attempted to

liken Section 229 to the provision upheld in Gonzales v. Raich, 545 U.S. 1 (2005),

it drew ridicule from the Justices, including one who voted with the majority in

Raich. See Oral Argument Tr., Bond v. United States, No. 09-1227 (2011),

available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/


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09-1227.pdf. Section 229 is not an effort to drive useful chemicals from the

interstate market or to regulate trade in chemicals. It has no more to do with the

regulation of commerce than did the Gun-Free Schools Act. The statute cannot be

constitutionally applied to Bond. This Court should either accept Bonds saving

construction or hold the statute unconstitutional as applied.

ARGUMENT

I. Interpreting The Chemical Weapons Statute As Applying To Ms. BondsConduct Is Neither Necessary Nor A Proper Means To Carry Out The

Federal Governments Treaty Obligations.

The government waits until page 39 of its supplemental brief to address the

central issue in this case whether the Chemical Weapons Statute, 18 U.S.C.

229, if interpreted to apply to Bond, exceeds Congresss treaty-implementing

authority and invades the powers reserved to the States by the Tenth Amendment.

The government is so reluctant to explain how this application of the statute to a

domestic dispute is necessary or proper to implementing international treaty

obligations that it spends page after page articulating an alternate theory it (wisely)

abandoned in the district court years ago. When it finally gets around to

addressing the central issue, the governments brief focuses largely on an irrelevant

abstraction namely, whether Congress has authority to pass federal legislation

that in general implements the United States treaty obligations under the Chemical


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Weapons Convention. U.S. Supp. Br. 3945.* Of course it does. But that has

never been in dispute, and so the governments argument misses the point. It is not

the mere existence of a statute implementing the Chemical Weapons Convention,

but the unprecedented scope of Section 229, as interpreted by the government and

as applied to Bond, that raises grave constitutional concerns. See Bond Supp. Br.

1621; see also Bond Br. 912.

As described in Bonds earlier submissions and below, the Court should

reject the governments interpretation and construe Section 229 to avoid these

constitutional concerns. See Bond Supp. Br. 3246; Bond Br. 2933.

Alternatively, if the statute cannot be construed to avoid constitutional doubt, the

Court should hold that, as applied to Bond in the circumstances of this case,

Section 229 is unconstitutional. See Bond Supp. Br. 4751; Bond Br. 1619.

A. The Governments Supplemental Brief Does Not Address TheCentral Disputed Issues In This Case.

No one disputes that Congress has a substantial interest in ensuring our

Nations compliance with its obligations under the Chemical Weapons

Convention. Nor does anyone dispute that a treaty restricting chemical weapons is

* App. refers to the appendix previously filed in the original appeal before thisCourt. Sen.App. refers to the appendix of sealed sentencing documents filed in

the original appeal. R. refers to the district court record. U.S. Br. refers to the

governments brief filed with this Court on November 13, 2008. U.S. Supp. Br.

refers to the governments supplemental brief filed on September 16, 2011. Bond

Br. refers to Ms. Bonds brief filed with the Court on September 8, 2008. Bond

Supp. Br. refers to Ms. Bonds supplemental brief filed on September 16, 2011.


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a proper subject[] of negotiations between our government and other nations.

U.S. Supp. Br. 42 (quotingAsakura v. City of Seattle, 265 U.S. 332, 341 (1924)).

As the government correctly notes, the United States has long been a signatory to

international agreements that outlaw the production, use, and stockpiling of

weapons capable of inflicting disproportionate or unnecessary suffering during

peace or war. U.S. Supp. Br. 4142 (listing treaties). As the government also

notes, the Convention, like other similar international agreements, has the broad

objective of seeking to eradicate the use of certain types of weapons. Id. at 44

(emphasis added); see also id. at 43 (Convention has broad objective to exclude

completely the possibility of the use of chemical weapons) (emphasis added).

But while international conventions addressing chemical weapons have long been

a staple of international negotiations, Section 229 as interpreted by the government

and as applied to Bond is a complete novelty.

Indeed, the history and objectives of these related treaties only underscore

the merits of Bonds position. While Nations have long worked to outlaw,

eradicate, or exclude completely dangerous chemical weapons (such as

mustard gas), they have never sought to eradicate commercially useful chemicals

that have the capacity to be used maliciously by ordinary citizens in domestic

disputes and other confrontations. Governments are not indifferent to such

malicious uses, but it is the stuff of local criminal law enforcement, not the stuff of


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international treaties. Vinegar remains well-stocked in our neighborhood grocery

stores not just here, but in other signatory states, even if in the wrong hands (as

Justice Alito has noted) it might pose a mortal threat to innocent goldfish. See Oral

Argument Tr. 29:1531:20,Bond v. United States, No. 09-1227. Bleach and Pine-

Sol also remain well-stocked and despite their potential for malicious use, which

was realized in a recent incident at a suburban Maryland Walmart that apparently

arose out of a domestic dispute. See Bleach, Pine-Sol thrown in fight at Baltimore

Co. Walmart, Baltimore Sun, Oct. 8, 2011, available athttp://articles.baltimoresun.

com/2011-10-08/news/bs-md-co-bleach-assault-20111008_1_hazardous-materials-

pine-sol-shopping-center. We do not mean to trivialize that incident the store

had to be evacuated and individuals taken to the hospital. But this was not an

international incident. Local charges for assault, theft, and malicious destruction

of property have been filed. See id. But no protests from our treaty partners have

been lodged and we sincerely hope that federal prosecutors are not waiting in the

wings. It simply cannot be the case that every grocery store in the country is a

veritable stockpile of chemical weapons just waiting to be unleashed whenever

used maliciously, rather than as directed on the label.

Simply put, local domestic disputes over marital infidelities that happen to

involve chemicals are beyond the scope of what the treaties were designed to

address. To borrow the governments words, these purely local issues do not give


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rise to the types of proliferation concerns that are a matter of grave concern to

the international community. U.S. Supp. Br. 41.

The governments supplemental brief fails to address this central problem

with this prosecution and the governments interpretation of Section 229 more

broadly. The government does not explain how interpreting Section 229 as

applying to Bonds conduct is required to satisfy our Nations treaty obligations.

See Bond Supp. Br. 2829. It offers no explanation why Bonds conduct has any

connection to the type of conduct that signatory states might engage in, which the

government admits is the focus of the Convention. See U.S. Supp. Br. 29, 44. It

does not explain why this Court should take any course other than avoiding serious

constitutional concerns by interpreting the statute as not extending to Bonds

conduct, and instead limiting it to actions that fall within the Conventions core

concerns. See Bond Supp. Br. 3334, 3846; see also Bond Br. 1316. And it

provides no affirmative argument why the Nations obligations under the

Convention must be enforced through sweeping federal legislation as opposed to

relying on state law that punishes assaults involving chemicals. See Medellin v.

Texas, 552 U.S. 491 (2008); see also App. 71 (Convention Art. VII) (requiring

each signatory state to adopt measures in accordance with its constitutional

processes).


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B. This Case Is Not Controlled By Missouri v. Holland.Instead of addressing Bonds central arguments, the government predictably

relies on dictum from Missouri v. Holland and several inapposite out-of-circuit

cases. See U.S. Supp. Br. 45, 4950, 5253. The government appears to read

Missouri v. Hollandas standing for the proposition that, when implementing an

international treaty, nothing is off-limits to the federal government as long as the

federal statute largely tracks the treatys language. U.S. Supp. Br. 45. That nearly

limitless view of the federal governments treaty power is neither correct nor

consistent with foundational principles of constitutional law. Indeed, it does not

even appear to be consistent with the position recently articulated by the Solicitor

General.

First, as Bond has explained in detail, Missouri v. Holland is readily

distinguished. See Bond Supp. Br. 2132; Bond Br. 2022. Most notably, in

Holland, Missouri raised a broad facial challenge to the statute implementing the

Migratory Bird Treaty between the United States and Great Britain, arguing

essentially that the statute was void in all of its applications as an unconstitutional

interference with rights reserved to the States. Holland, 252 U.S. at 431. Unlike

Bond here, Missouri did not argue that its application to certain birds or in certain

situations was problematic. Nor did there appear to be any argument that, as


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interpreted, the federal statute exceeded the scope of what was necessary to satisfy

the Nations treaty obligations.

The result in Holland presumably would have been very different if the

federal government had interpreted the statute not only to apply to migratory birds

traveling between the United States and Canada, but also to resident, non-

migratory birds that never leave Missouri. If Missouri in those circumstances had

pressed an as-applied challenge, the Court would have faced very different issues

in balancing the States interests against the national interest. Instead, however,

because Missouri raised a sweeping facial challenge, the Court concluded that a

national interest of very nearly the first magnitude was involved because

migratory birds are only transitorily within the State and, therefore, their

protection could occur only through national action in concert with Great

Britain and Canada. Id. at 435. It is in this context that the Court noted that, when

matters requiring national action are involved, the body of private relations

that ordinarily fall within a States purview may be affected by a treaty. Id. at

43334 (treaty-implementing authority extends to matters of the sharpest

exigency for the national well being).

As explained in Bonds supplemental brief, any effort to read into Holland

the simplistic principle that Congresss power to implement treaties is subject to no

limit other than affirmative restrictions on governmental power like the First


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when the Justice expressed skepticism about reliance on the treaty power. As

Justice Scalia put it:

It seems to me Congress either had the power to do this

under the Copyright Clause or it didnt. I dont think that

powers that Congress does not have under the

Constitution can be acquired by simply obtaining the

agreement of the Senate, the President and Zimbabwe. I

do not think a treaty can expand the powers of the federal

government. I mean, this is either okay under the

Copyright Clause or it isnt.

Oral Argument Tr. 31:2132:04 (Scalia, J.), Golan v. Holder, No. 10-545 (2011),

available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/

10-545.pdf. General Verrilli responded: We completely agree[] with that, Justice

Scalia. Id. at 32:0932:10. Justice Scalia and the Solicitor General have this

point right. Hollandshould not be read to give the federal government plenary

power on any of the virtually limitless topics covered by modern treaties. See

Bond Supp. Br. 25.

Second, the out-of-circuit cases cited by the government are also readily

distinguished. In each case, the courts addressedfacial challenges seeking to strike

down treaty-implementing statutes as invalid under the Tenth Amendment. There

is no indication that the defendant in any of the cases raised a narrow, as-applied

challenge, or urged the Court to interpret the applicable statute away from

constitutional doubt. Equally important, those cases involved distinct statutes that

featured the kind of limiting language that Section 229 plainly lacks.


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In United States v. Lue, 134 F.3d 79 (2d Cir. 1998), for example, the Second

Circuit concluded that the Hostage Takings Act is an appropriate exercise of

Congresss authority to implement the International Convention Against the

Taking of Hostages, and rejected the argument that the statute exceeded

Congresss authority because it did not deal narrowly with international

terrorism. Id. at 84. The Second Circuit did not rest its decision on an extreme

reading ofHolland that would grant the federal government plenary power over

any subject touched by a treaty. Instead, the court recognized that Holland

provided support for the notion that a legislative enactment effectuating a treaty

will not pass muster under the Tenth Amendment unless such an enactment

addresses a uniquely national or international matter. Id. at 85. But the Second

Circuit concluded that it did not have to decide the question because there was a

sufficient national (indeed international) interest in protecting foreign nationals

on local soil. Id. at 83, 85. Similarly, in United States v. Ferreira, 275 F.3d 1020

(11th Cir. 2001), the Eleventh Circuit concluded that the same statute was an

appropriate exercise of Congresss treaty-implementing power because

kidnapping involving foreign nationals has serious international ramifications,

which are Congresss unique responsibilities. Id. at 1027.

The government contends that Lue and Ferreira rejected arguments that

were nearly identical to the argument raised by Bond in this case. U.S. Supp. Br.


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51, 52. But that is simply not true. The arguments are not identical, but more to

the point, neither are the statutes. The Hostage Takings Act, at issue in both Lue

and Ferreira, includes a critical jurisdictional element that eliminates the

possibility that it could be read to extend to every domestic kidnapping or false

arrest case specifically, either the victim or the hostage taker had to be a foreign

national for the kidnapping to fall within the statutes ambit. See 18 U.S.C.

1203; United States v. Lian, 905 F. Supp. 160, 166 (S.D.N.Y. 1995) (discussing

this jurisdictional limit); see also Bond Br. 2324. Indeed, in both cases, the

defendants raised an equal protection challenge, arguing that the statute

impermissibly discriminated on the basis of alienage. See Ferreira, 275 F.3d at

1025; Lue, 134 F.3d at 8588. Both courts rejected that challenge precisely

because the federal government has national interests when dealing with aliens

that are different from those of the individual states, and has primary authority

to regulate immigration and foreign affairs generally. Lue, 134 F.3d at 86.

Section 229 is problematic precisely because, as interpreted by the

government, it does not contain any analogous requirement that limits the statute to

applications with a distinct nexus to the relevant treaty or even the federal

governments distinct interests more broadly. And Bonds constitutional

avoidance argument is compelling because it construes the statute in a way that

would confine it to cases with a distinct nexus to a federal treaty, rather than


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criminalizing every malicious use of widely available chemicals. The outcome of

the cases on which the government relies would presumably have been much

different if the Hostage Takings Act did not include that limiting language and the

government sought to apply it to purely local kidnappings involving only

American citizens. See Bond Br. 2324. If, for example, a state resident were to

lock her husbands paramour in a closet and refuse to let her rival out until her

husband renounced the affair, the woman would undoubtedly violate multiple state

laws, including laws against false arrest and kidnapping. But it would be fanciful

to suggest that the International Convention Against the Taking of Hostages

authorized Congress to federalize that crime. The Constitutions structural

guarantees, including the Tenth Amendment, must impose some meaningful limits

on federal authority. And nothing inLue, Ferreira, or any of the other cases cited

by the government is to the contrary.

Indeed, in Lue, the Second Circuit relied on a law review article that

specifically noted that the Constitution imposes structural limits on Congresss

treaty-implementing authority. See 134 F.3d at 83 (citing Laurence H. Tribe,

Taking Text and Structure Seriously: Reflections on Free-Form Method in

Constitutional Interpretation, 108 Harv. L. Rev. 1221, 1261 n.133 (1995)). In the

very footnote thatLue cites, the article explains that, although inHollandthe Tenth


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Amendment did not prohibit[] the treaty in question in that case, the Supreme

Court has long recognized the structural limits on the treaty power:

The treaty power . . . is in terms unlimited except by

those restraints which are found in that instrument

against the action of the government or of its

departments, and those arising from the nature of the

government itself and of that of the States. It would not

be contended that it extends so far as to authorize what

the Constitution forbids, or a change in the character of

the government or in that of one of the States, or a

cession of any portion of the territory of the latter,

without its consent.

Tribe, supra, 108 Harv. L. Rev. at 1261 n.133 (quoting De Geofroy v. Riggs, 133

U.S. 258, 267 (1890)).

Third, contrary to the governments assertions, Section 229s language does

not track the language of the Chemical Weapons Convention in all material

respects. U.S. Supp. Br. 47. As Bond has explained, the statute sweeps more

broadly than the Convention because it renders it unlawful for any person to

receive, . . . own, possess, . . . or threaten to use any chemical weapon. 18

U.S.C. 229; compare App. 70. These differences are material because Bonds

indictment included the prohibition on possession and Bond objected to the

indictment on constitutional grounds. See App. 78; see also Bond Supp. Br. 47

48. Moreover, the Convention itself simply directed signatory nations to prohibit

conduct that would be prohibited if undertaken by a signatory nation, and to do so

consistent with their respective systems of government. See Bond Supp. Br. 45,


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31, 4041. Not one word in the Convention directs them to prohibit conduct like

Bonds, let alone to do so in a manner that disregards our Constitutions division of

what is national and what is local. See App. 71 (Convention, Art. VII) (requiring

each signatory state to implement its treaty obligations in accordance with its

constitutional processes).

Fourth, the governments position is inconsistent with Supreme Court

precedent and appropriate understandings of the Tenth Amendment. The

government takes the position that, although Congress cannot pass treaty-

implementing legislation that contravenes an express prohibition in the

Constitution, Congress is free to ignore the Constitutions structural limits on

federal power. U.S. Supp. Br. 12. But that position is directly in tension with the

Supreme Courts admonition that the structural principles embodied in the Tenth

Amendment impose affirmative constraints on the federal government and do so

for the same basic reason as the other constitutional limits even the government

acknowledges viz., to protect individual liberty. Bond, 131 S. Ct. at 2366; see

also U.S. Supp. Br. 46 n.12 (acknowledging that Congress cannot pass treaty-

implementing legislation that violates an express constitutional prohibition). As

the Supreme Court has explained, the principles of limited national powers and

state sovereignty are intertwined and an [i]mpermissible interference with state

sovereignty is not within the enumerated powers of the National Government.


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Id.; see also New York v. United States, 505 U.S. 144, 156 (1992) (Congress

exercises its conferred powers subject to the limitations contained in the

Constitution. Thus, for example . . . [t]he Tenth Amendment . . . restrains the

power of Congress . . . .).

Accordingly, although the Necessary and Proper Clause grants Congress

authority to enact treaty-implementing legislation, it is well established that

legislation that violates fundamental constitutional principles and is inconsistent

with the letter and spirit of the Constitution can never be a necessary and proper

means of executing Congresss enumerated powers. McCulloch v. Maryland, 17

U.S. 316, 421 (1819); see also Alden v. Maine, 527 U.S. 706, 73334 (1999);

Printz v. United States, 521 U.S. 898, 92324 (1997). Certainly, nothing in

Missouri v. Hollandis remotely to the contrary. See Bond Supp. Br. 2125; Bond

Br. 2021. Indeed, it is a foundational principle, deeply ingrained within our

constitutional history, that the Constitution created a federal government of limited

powers, while reserving a generalized police power to the States. See United

States v. Lopez, 514 U.S. 549, 566 (1995) (Congresss authority is limited to those

powers enumerated in the Constitution);Mayor of New Orleans v. United States,

35 U.S. 662, 736 (1836) (Congresss limited powers cannot be enlarged under

the treaty-making power). This basic federalism principle directly informs which

powers may be properly exercised by the federal government under the Necessary


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and Proper Clause. See United States v. Comstock, 130 S. Ct. 1949, 1967 (2010)

(Kennedy, J., concurring). Congress cannot, under the pretext of executing

delegated power, pass laws for the accomplishment of objects not intrusted to the

federal government. Linder v. United States, 268 U.S. 5, 17 (1925).

C. The Chemical Weapons Statute, As Applied To Bond, RaisesConstitutional Concerns Of The First Order.

The government ends its supplemental brief with the astonishing assertion

that its interpretation of Section 229 does not restrike[] the balance between the

federal government and the States because Section 229 neither preempts state law

nor precludes state prosecution of the same activity. U.S. Supp. Br. 54. In the

governments view, there is no intrusion on state prerogatives because Section

229 does not require or compel state officials to take any particular action. Id. at

55.

These assertions only confirm how much the governments position is at

odds with our Constitutional scheme. Contrary to the necessary implications of the

governments argument, the Constitution does not impose a one-way-ratchet

towards harsher criminal sentences and increased government intrusions on

individual liberty with the criminal law of the strictest sovereign always

dominating. If it did, that observation alone could have dispensed with the

challenge inRaich, andLopez andMorrison would have been decided differently.

See Gonzales v. Raich, 545 U.S. 1 (2005); United States v. Lopez, 514 U.S. 549,


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566 (1995); United States v. Morrison, 529 U.S. 598 (2000). Commandeering

state officials and interfering with state prerogatives are indeed violations of the

Constitution, but they are not the only way for the federal government to exceed its

powers and threaten both federalism and individual liberty. Federal intrusion into

areas that lie beyond the federal governments enumerated powers and are the

exclusive province of governments closer and more responsive to the people is a

critical aspect of the Supreme Courts federalism jurisprudence. See, e.g.,Jones v.

United States, 529 U.S. 848, 857-58 (2000). The Constitution requires a

distinction between what is truly national and what is truly local, with the latter

left to governments more responsive to the people. Morrison, 529 U.S. at 61718.

Indeed, the whole point of federalism is that it inheres to the individual and his

or her right to liberty. Oral Argument Tr. 20:912 (Kennedy, J.),Bond v. United

States, No. 09-1227.

Although federal law trumps state law under the Constitutions Supremacy

Clause, the federal powers are few and defined, while the powers reserved to

the States . . . extend to all the objects which, in the ordinary course of affairs,

concern the lives, liberties, and properties of the people. The Federalist No. 45

(James Madison). As the Supreme Court has held, the Constitution created a

Federal Government of limited powers, while reserving a generalized police power

to the States. Morrison, 529 U.S. at 618 n.8 (quotingNew York, 505 U.S. at 155).


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Accordingly, the scope of the federal governments authority must be considered

in the light of our dual system of government, and may not be extended so as to . . .

obliterate the distinction between what is national and what is local and create a

completely centralized government. Lopez, 514 U.S. at 557 (quoting NLRB v.

Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937)); see also id. at 566 (the

Constitution withholds from Congress a plenary police power). Indeed, because

the States possess primary authority for defining and enforcing the criminal law,

Brecht v. Abrahamson, 507 U.S. 619, 635 (1993), care must be taken to avoid

rendering ordinary state crimes a concurrent violation of federal law. Bray v.

Alexandria Womens Health Clinic, 506 U.S. 263, 287 (1993) (Kennedy, J.,

concurring). The treaty power cannot be construed to grant the federal government

a general police power. Lopez, 514 U.S. at 567.

Moreover, under our Constitution, determining what punishment is the

appropriate response to purely local crimes is entrusted to the exclusive authority

of state officials. In particular, the determination of what local crimes should be

subject to the death penalty is a core sovereign responsibility of the States. As the

Framers recognized, the administration of private justice between citizens of the

same State . . . can never be desirable cares of a general jurisdiction. The

Federalist No. 17 (Alexander Hamilton); see also James Wilson, Speech to the

Pennsylvania Convention (Nov. 24, 1787), available at http://teachingamerican


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history.org/library/index.asp?document=1714 (Whatever object of government is

confined in its operation and effect, within the bounds of a particular State, shall be

considered as belonging to the government of that State.). And the decision to

criminalize an area of law as a matter of federal law inevitably interferes with local

prerogatives because a federal sentence necessarily makes a negative judgment on

alternative sentences that local authorities might otherwise deem appropriate,

especially when it comes to the death penalty. Federalizing purely local crimes

thus directly interferes with the one transcendent advantage belonging to the

province of the State governments the ordinary administration of criminal and

civil justice. The Federalist No. 17 (Hamilton).; see alsoJones, 529 U.S. at 857

58.

The federal governments interpretation of Section 229 runs afoul of these

basic principles. It applies the heavy artillery of federal prosecution to all manner

of local crimes involving the malicious use of commonly available chemicals. If

that malicious use results in death, it takes the decision concerning the

appropriateness of the death penalty away from the state legislature and local

prosecutors and moves it to the U.S. Attorneys office and ultimately to

Washington. See Bond. Supp. Br. 78; see also 18 U.S.C. 229A(a)(2). All of

that would make sense in the case of crimes implicating the core concern of the

Convention. But the government blunderbuss interpretation of the statute fails to


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distinguish between local crimes and violations of the law of Nations. This Court

should accept Bonds interpretation of the statute because it avoids grave

constitutional questions and distinguishes between what is truly national and what

is purely local. And if the Court concludes that the government has correctly

interpreted the statute, this Court should strike it down as applied in excess of the

federal governments power and in derogation of our constitutional system.

II. Interpreting The Chemical Weapons Statute As Applying To Ms. BondsConduct Is Not Justified Under The Commerce Clause.

Underscoring the weakness of its position on the treaty power argument, the

government seeks to resurrect an argument that it previously expressly disavowed

namely, that as applied to Bond 18 U.S.C. 229 is a proper exercise of

Congresss authority under the Commerce Clause. This argument is waived and,

in any event, lacks all merit. The Commerce Clause and this statute are a complete

misfit. Section 229 was self-evidently enacted to implement the Convention, and

if properly construed does so without raising grave constitutional difficulties. But

Section 229 was not and is not Commerce Clause legislation and cannot be

defended on that ground. Congress does not want to snuff out the market in

bleach, Pine-sol, or vinegar, and prosecuting the malicious use of those chemicals

has nothing to do with the regulation of commerce. The government was right the

first time in defending this statute on the only ground that motivated Congress.

And properly construed the statute is valid on that ground, just not as applied. But


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the governments late-breaking effort to defend a provision of the Chemical

Weapons Convention Implementation Act of 1998 as valid Commerce Clause

legislation is a futile effort to pound a square peg into a round hole.

A. The Governments Previously Disavowed Commerce ClauseArgument Is Waived And Forfeited.

The government acknowledges that, in earlier briefing before this Court, it

relied only on the Treaty Power to support the constitutionality of the Chemical

Weapons Statute. U.S. Br. 21 n.5. In fact, the government affirmatively and

expressly disclaimed any reliance on the Commerce Clause. R. 30 at 7. In

response to Bonds motion to dismiss, the government unequivocally stated that 18

U.S.C. 229 was notenacted under the interstate commerce authority . . . . Id.

(emphasis added). That concession should be binding on the government and

subject to the ordinary rule that an argument expressly disavowed in the district

court is waived and cannot be raised on appeal. See United States v. Stearn, 597

F.3d 540, 551 n.11 (3d Cir. 2010); see also Pareja v. United States, 615 F.3d 180,

186 n.3 (3d Cir. 2010).

The government contends that ordinary principles of waiver and forfeiture

do not apply because it is incumbent on this Court to consider any basis for

affirming the validity of the statute. U.S. Supp. Br. 37. It is not at all clear that

this principle actually permits the government to resurrect an affirmatively

disavowed theory, but any more forgiving standard for government forfeiture


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applies only when a party advances a facial challenge to a statute. In such

circumstances, because the party is seeking to void the statute in its entirety, the

burden is on the challenger of the law generally the plaintiff to establish

that no set of circumstances exists under which the Act would be valid. United

States v. Salerno, 481 U.S. 739, 745 (1987); United States v. Mitchell, No. 09

4718, 2011 WL 3086952, at *16 (3d Cir. July 25, 2011). The rule does not apply

where, as here, a party is challenging the constitutionality of a statute as appliedto

her own conduct. In the as-applied context, the relief is limited to the party before

the Court, for the issue is not whether the statute as a whole is invalid but whether

the statute is being unconstitutionally applied. In those circumstances, the Court

should consider whether the particular application of the statute has been justified,

and has no obligation to consider disavowed arguments.

The government also contends that prevailing parties are entitled to raise

alternative arguments because the Court may affirm on any ground supported by

the record. U.S. Supp. Br. 38. But that rule does not excuse forfeiture let alone

apply when the alternative grounds have been expressly disavowed and were not

raised before the district court. See, e.g., United States v. Soberon, 929 F.2d 935,

940 (3d Cir. 1991) (court cannot . . . base [its] decision on grounds that were not

raised before the district court); see also Mark v. Borough of Hatboro, 51 F.3d

1137, 1139 n.1 (3d Cir. 1995); United States v. Aguilar, 849 F.2d 92, 99-100 (3d


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Cir. 1988). The government relies onIn re Teleglobe Communications Corp., 493

F.3d 345 (3d Cir. 2007), but that decision does not apply because it does not

involve an issue that was raised for the first time on appeal.

B. The Governments Previously Disavowed Commerce ClauseArgument Is Meritless.

Even if this Court were to consider the governments late-breaking

Commerce Clause argument, it should conclude that the argument lacks merit.

The government was right to focus on the treaty power because the Commerce

Clause is a complete misfit with 18 U.S.C. 229.

At the recent Supreme Court oral argument in this case, Justices Alito and

Scalia both derided the suggestion that the government could defend the statute on

the basis of the Commerce Clause. Justice Alito stated that, given the broad nature

of the Chemical Weapons Statute, the governments reading and its reliance on the

Commerce Clause would produce absurd results, such as suggesting that the

pouring of vinegar into a goldfish bowl to kill a former friends fish would be a

federal crime. Oral Argument Tr. 29:1529:20, Bond v. United States, No. 09-

1277 (Alito, J.); see also id. at 30:430:9. When the government suggested that

this is an area, like the medical marijuana instance in Raich, where effective

control of the interstate market requires control of an intrastate market, Justice

Scalia, who joined the majority in Raich,was incredulous. As he colorfully and

sarcastically asked: Youre trying to drive vinegar out of the interstate market?


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Do the people know youre trying to do this? Can you really argue that this statute

is designed to drive vinegar out of the interstate market? Id. at 31:1531:19

(Scalia, J.).

In fairness to the government, it denied any intent to drive vinegar out of the

interstate or intrastate market. But that denial just underscores the source of the

Justices incredulity. This statute self-evidently has nothing to do with interstate

commerce. It is nothing like Raich where the government wanted to eliminate a

product from the interstate market and thus had the power to eliminate it from the

intrastate market to perfect the federal regulatory regime. See id. at 30:2324

(noting that Raich involved on commodity not potentially thousands and

thousands of chemicals). But while this case is nothing like Raich, it is very

much like Lopez if Section 229 is viewed as Commerce Clause legislation. The

fundamental problem with the statute in Lopez was that regulating the possession

of firearms within 1,000 feet of a school is not a rational way to regulate commerce

in firearms. Regulating the price of firearms or their possession within 1,000 feet

of a federally licensed firearm dealer might be a rational way to regulate commerce

in firearms (putting aside, of course, any Second Amendment issues). But there

was a fundamental disconnect between regulating firearms near schools and

regulating firearms as commerce. In light of that disconnect, the Court knew

something other than the regulation of commerce was afoot.


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Here, there is no doubt but that something other than the regulation of

commerce was afoot in Congresss enactment of Section 229. And there is no

doubt what it was: Congress was clearly trying to implement the Chemical

Weapons Convention, and was not trying to drive vinegar from the interstate

market or even regulate commerce in the thousands of chemicals potentially

converted into chemical weapons by the governments reading. There is no

indication in the Chemical Weapons statute that Congress was invoking its

Commerce Clause authority to criminalize certain uses of chemicals. App. 169

(Congress does not purport to enact the statute pursuant to the Commerce

Clause). And there is every indication that Congress was trying to implement the

Convention. That is why Congress gave the Act that created Section 229 the short

title of the Chemical Weapons Convention Implementation Act of 1998.

Nonetheless, the government weakly asserts that the purpose of the

Chemical Weapons Statute is to promote free trade and the exchange of

technology in chemicals. U.S. Supp. Br. 28; see also id. at 29 (Congress was

advancing the Conventions broad objective of fostering international trade in

chemicals). But that only emphasizes why Section 229 must be interpreted with

more care and subtlety than the government has mustered. Unlike nuclear

materials that are always subject to tight control, the Convention seeks to

encourage free and open commerce in chemicals while prohibiting chemical


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weapons. Any view of Section 229 that would lightly convert chemicals into

chemical weapons just based on their malicious use, as opposed to warlike use, is

completely antithetical to any interest in further commerce in useful chemicals. As

Bond has explained, the statute is intended to reinforce the notion that the

statutes intent is to reach serious conduct that would violate the [Chemical

Weapons] Convention if undertaken by a signatory state. Bond Supp. Br. 40.

And the statute focuses on war-like uses of chemicals by signatory states and

terrorists. See 18 U.S.C. 2332b(g)(5)(B)(i) (describing violation of Section 229

as a federal crime of terrorism); see also id. 3143(b)(2); id. 3142(f)(1)(A); id.

2332b(g)(5)(B)(i).

Section 229, unlike many other such criminal statutes, does not include a

jurisdictional element. See Bond, 581 F.3d at 134. Accordingly, to obtain a

conviction the government need not prove the chemical moved in interstate

commerce or substantially affects commerce. The absence of such a provision is

not only a strike against it as valid Commerce Clause legislation, see Lopez, 514

U.S. at 561, it is revealing. It confirms that Congress did not legislate with the

assumption that the federal government was overlaying a federal commercial

regulation on top of the States normal police powers, in which case a

jurisdictional element would be expected. Rather, Congress thought it was

regulating narrowly to reach items of self-evident national concern like stockpiles


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of chemical weapons or the use of Sarin gas by a terrorist group indiscriminately

against civilians. Such matters of obvious national and international concern

effectively serve as their own jurisdictional elements. See Bond Supp. Br. 43.

Accordingly, it is not surprising that, as the government points out, federal statutes

addressing biological and nuclear weapons and plastic explosives do not have a

commerce-based jurisdictional element. Those statutes, no less than the Chemical

Weapons Convention Implementation Act of 1998, do not have commerce-based

jurisdictional elements because they are not Commerce Clause legislation.

All of this highlights the real vice of the governments interpretation of

Section 229. Under the governments view, the statute is not limited to a narrow

band of closely regulated items of obvious national and international concern.

Instead, it presumptively covers a whole host of widely available chemicals

commerce in which the government generally encourages. Rather than regulate

those items in commerce, the government would allow any malicious use of those

items no matter how local or non-commercial to convert widely available items

into chemical weapons. That regime has nothing to do with the regulation of

commerce and very little to do with the proper implementation of the Chemical

Weapons Convention. There is a sensible alternative, which Bond has proposed,

that avoids constitutional uncertainty and allows Section 229 to implement the

Convention in a manner that is both rational and constitutional. But if that


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alternative is rejected there is nothing in the Commerce Clause that will save

Section 229 as interpreted by the government and as applied to Bond from

constitutional invalidation.

CONCLUSION

For these reasons, and for the reasons set forth in Bonds opening

supplemental brief, the Court should vacate the judgment and sentence.

Respectfully submitted,

Ashley C. Parrish

Adam M. Conrad

KING & SPALDING LLP

1700 Pennsylvania Avenue, N.W.


Telephone: (202) 737-0500

Facsimile: (202) 626-3737

[email protected]

[email protected]

/s/ Paul D. ClementPaul D. Clement

Counsel of Record

Conor B. Dugan

BANCROFT PLLC

1919 M Street, NW, Suite 470


Telephone: (202) 234-0090

Facsimile: (202) 234-2806

[email protected]

[email protected]

Robert E. Goldman

ROBERT E. GOLDMAN LLC

P. O. Box 239

Fountainville, PA 18923

Telephone: (215) 348-2605

Facsimile: (215) 348-8046

[email protected]

Counsel for Defendant-Appellant

DATED: October 14, 2011


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CERTIFICATE OF LENGTH, FORMAT, AND ADMISSION

1. Per the Microsoft Word word count function, excluding tables,

certifications, and addenda, the foregoing contains 6,951 words, and therefore

complies with the limitation on length of a brief stated in Fed. R. App. P.

32(a)(7)(B);

2. The text of this electronic brief and the hard copy filed on October 14,

2011 are identical;

3. A scan and PDF conversion using Kaseya Antivirus software

demonstrated that the PDF file is a virus-free form; and

4. The below counsel is admitted to practice before this Court.

/s/ Paul D. Clement

Paul D. Clement

Counsel of Record

BANCROFT PLLC



Telephone: (202) 234-0090

Facsimile: (202) 234-2806

[email protected]

Counsel for Defendant-Appellant


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CERTIFICATE OF SERVICE

I certify that on this date I filed ten copies via FedEx and an electronic copy

of the foregoing using the Courts ECF system to the following:

United States Court of Appeals for the Third Circuit

Clerk of the Court

21400 U.S. Courthouse

601 Market Street

Philadelphia, PA 19106

I certify that on this date I served one copy via FedEx and an electronic copy

of the foregoing using the Courts ECF system, which will cause notice of the

filing and a copy to be issued to the following:

Paul G. Shapiro

United States Attorneys Office

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

I further certify that a .pdf file of the foregoing brief was e-mailed to the

above counsel at [email protected] on October 14, 2011.

This 14th day of October, 2011. /s/Paul D. Clement

Paul D. Clement

Counsel of Record

BANCROFT PLLC


Washington, DC 20036Telephone: (202) 234-0090

Facsimile: (202) 234-2806

[email protected]

ca3 reply brief bond

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