Jeremy Ryan Court Documents

Case: 3:18-cr-00152-jdp Document #: 103 Filed: 06/17/19 Page 1 of 39
UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WISCONSIN
UNITED STATES OF AMERICA,
Plaintiff,
vs. Case No. 18-cr-152-jdp
JEREMY J. RYAN,
Defendant.
REPLY BRIEF IN FURTHER SUPPORT OF PRETRIAL MOTIONS

Table of Contents
Introduction ................................................................................................................................ 1
1. A few points of clarification ......................................................................................... 4
2. The constitutional issues aren’t controlled by stray, inapposite quotes but basic
principles of constitutional law embedded and explicit in the seminal cases ...... 6
a. The court cannot invent a power that Congress did not invoke ................. 7
b. The regulation of radioactive material and the criminalization in § 2332i

isn’t anything close to what happened in Raich .......................................... 13
c. The Treaty Power cannot be used to give Congress greater power than
what it’s been given in Article I ..................................................................... 21
d. The Necessary and Proper Clause does not operate independently of

Congress’s enumerated powers ..................................................................... 26
3. The statute’s text is properly interpreted in the defense’s opening brief and the
government’s contrary arguments fail to appreciate the statute’s grammar ...... 28
i. The government’s brief does not parse the statute and explain how
it operates .............................................................................................. 29
ii. The last-antecedent rule is inapplicable here because there is no

pronoun, relative pronoun, or demonstrative adjective ................ 30
iii. The rule against surplusage is inapplicable here ............................ 33
iv. The government’s analogous cases are of limited, bordering no,

value ....................................................................................................... 34
v. The Court should appoint an expert under Rule 705 to give an

opinion on how the statute must be interpreted ............................. 36
4. Conclusion .................................................................................................................... 36
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FEDERAL DEFENDER SERVICES
OF WISCONSIN, INC.
INTRODUCTION
Jeremy Ryan, by counsel, files this omnibus reply brief in support of the previously
filed motions and in response to the government’s filing. In addition, this brief lays the
groundwork for a motion for appointment of a neutral expert under Rule 705.
This not an ordinary case, and this will not be an ordinary reply brief. Instead,
given the complexity of these issues, this will read more as a bench memorandum than a
piece of advocacy. It’s easy to get lost in these issues, and so the defense will walk point
by point through the government’s salient arguments and explain where they fail or
where its citations and representations don’t tell the “whole” story of a case or a point.
Rather than working sequentially through the government’s brief, the reply will
address the dispositive issues first. These issues center on two points of constitutional
law: first, whether the courts are bound by the power Congress invoked—that is, even
though Congress didn’t invoke its Commerce Power, can this Court just assume that it
did or would have? And second, whether this statute is just like the comprehensive
national market regulation for controlled substances that the Supreme Court upheld in
Raich. If any of those points hold, then this case is over for the defense.
Thankfully, the only support the government invokes for courts to suppose that
Congress silently invoked powers are cases from the 1890’s, and they don’t actually
support the government’s position. If they did, then the Courts in Lopez and Morrison
were just the victims of bad briefing by the Solicitor General’s office and they could have
easily decided the cases on other grounds. Fortunately for our Republic, the Supreme
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Court demands that Congress explicitly state, and courts judge, the constitutionality of
the power Congress invokes. And when it comes to the argument that § 2332i is no
different from Raich, the government has failed to do its homework and show its math.
Far from being the Controlled Substances Act’s twin, where the federal government took
over an entire market, § 2332i is part of a scheme that allowed states to opt-out of federal
regulation. Wisconsin, like other states, did just that. Thus, as more fully explained below,
this is not a Raich situation.
Putting those points aside, the next issue is the government’s choice quotes about
and from Bond II and cases discussing what it can be read to mean. Unfortunately, rather
than respecting the decision from our Nation’s highest court and its observations about
Congress’s Treaty Power (which at the very least should be given great weight as
“considered dicta”) the government’s argument relegates Bond to a one-off. Yet Bond is
not merely a reminder of how poorly prosecutorial discretion can be exercised; instead,
it’s a clear instruction to courts on the limits of Congressional power. Simply put,
Congress cannot treat the Tenth Amendment as an afterthought—an ink blot at the end
of the glorious Bill of Rights. Yet accepting the government’s argument will render it just
that.
Those are the foundational points of this brief. Once those are in place, then the
analysis shifts to the government’s other constitutional arguments about the Necessary
and Proper Clause (whether it operates by itself independent of an enumerated power in
Article I) and the Treaty Power. More specifically, does the Treaty Power allow Congress
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to pass an otherwise unconstitutional law? Those arguments are interesting as an
academic matter but other than a spattering of law review articles and concurrences
(though, again, interesting) there is no support for this prosecution being sustained under
either the Treaty Power or the Necessary and Proper Clause.
With a firm understanding of the law, then the argument shifts to the statute’s text
and what it demands the government prove. In response to a plain reading of the text,
the government has invoked the last-antecedent rule and the substantive canon that
courts avoid surplusage. In support, the government cleaves to a Seventh Circuit case
about transporting minors for the purpose of prostitution, while ignoring the clear
teaching of not just grammar but three on-point Supreme Court cases about how
adverbial phrases modify the elements that follow. It’s worth noting that its argument for
adopting a reading in line with the Seventh Circuit’s case ignores the fact that at common
law (and in the federal system) ignorance of a minor’s age has never been a defense.
Those points control almost all of the briefing. Given Ryan’s imminent conditional
plea, the other motions are moot. But again, given the complexity and breadth of these
issues, the defense again requests that the court hold oral argument on the motions. This
Court, the parties, and the Seventh Circuit will benefit from a thorough airing of these
issues and a precise understanding of the law and the facts, which should be fleshed out
during oral argument.
What follows is split into four sections: three substantive parts and a conclusion.
Section 1 provides some clarifying remarks that should narrow the dispute the Court
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must resolve. Section 2 shows how the government’s constitutional law analysis goes
astray. And Section 3 urges the Court to reject the government’s reading of § 2332i’s text.
A brief conclusion follows in the final section.
1. A few points of clarification
Before addressing the weighty constitutional issues there are two points in the
government’s brief about the factual record that are worth stressing.
First, the government’s take on the evidence doesn’t contest two critical facts here.1
It doesn’t deny that Ryan’s purpose in acquiring Po210 was to poison himself. If there
were evidence of another use for the poison, surely the government would have pointed
to it in the brief. It doesn’t. Moreover, the government doesn’t dispute the fact that the
undercover agent never provided Ryan with the information about the dose. The agent
never told him the quantity of Po210 he would receive—just that it wouldn’t harm first
responders or anyone who came in contact with him. After all, Ryan pressed the agent
about any risks to those who did not ingest it. There’s no dispute that the evidence shows
that Ryan intended to self-harm with Po210 but never learned what quantity to expect in
the package; rather, the agent had total control over the dose of “Po210” he would send
to Ryan. Thus, while the government makes much of how dangerous this all was and
there being no legitimate purpose for it, the government fails to explain (or mention) that
Ryan didn’t control the dose; it doesn’t mention that Ryan wanted a single dose; and it
1 See Gov’t Opp. Br., R. 89:9 et seq.

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doesn’t explain how an alpha-emitter, which is only deadly when ingested and whose
radiation can’t pierce through a piece of paper, provided a risk to others once the dose
was taken. Simply saying it is so isn’t enough.
Second, as for Po210 and its properties, the government does get some of the
science right. Po210 production is capital-intensive: bombarding a stable (non-
radioactive) substance with neutrons to make Po210 requires a nuclear reactor.2 But its
toxicity comparison with cyanide doesn’t show that Po210 is more dangerous than
cyanide. No doubt equal quantities of cyanide and Po210 are far, far from being equally
toxic. But how each operates and can poison a person to death also bears on its
dangerousness. Unlike Po210,3 cyanide can be absorbed through the skin.4 Two
tablespoons on exposed skin would be more than enough to cause death.5 Conversely,
Po210, as an alpha-emitter, “cannot penetrate paper or skin, so external exposure doesn’t
pose a health risk.”6
Those points are central to understanding what this Court is dealing with: a person
who was trying to kill himself with a substance that would make it look like he died of
cancer. The fact that it sounds scary, Polonium-210, sounds an awful lot like Plutonium,
2 See Gov’t Opp. Br., R. 89:9.

3 See Omnibus Br., Exh. C at 1, R. 68-3:1.
4 Centers for Disease Control and Prevention, “Facts About Cyanide” available at
https://emergency.cdc.gov/agent/cyanide/basics/facts.asp.
5 Centers for Disease Control and Prevention, Agency for Toxic Substances & Disease Registry,
“Hydrogen Cyanide (HCN)” available at https://www.atsdr.cdc.gov/MMG/MMG.asp?id= 1141&tid=249.
HCN’s IDLH (immediately dangerous to life or health) is 50ppm or 50mg/L, which converts to 1mg/20ml.
Twenty milliliters is about 1.3 tablespoons.
6 See Omnibus Br., Exh. C at 1, R. 68-3:1.
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but there is a world of difference between them. And Po210 can be purchased legally in
certain amounts. And Ryan didn’t control whether the government’s agent would send
a dose equal to or less than that amount. He simply wanted to euthanize himself and the
agent was willing to oblige, for $500 in Bitcoin.
2. The constitutional issues aren’t controlled by stray, inapposite quotes but

basic principles of constitutional law embedded and explicit in the seminal
cases.
This whole case turns on the next four subsections. The first concerns whether
courts can assume or decide cases upon the supposition that they can review acts of
Congress by hypothesizing about its invoking powers it didn’t actually state it was using.
That is the underpinning of the government’s argument on page 16—namely, § 2332i can
be sustained under the Commerce Clause.7 The second concerns the holding of Raich and
when Congress’s Commerce Power is used to control an entire market and whether that
is, in fact, what Congress has done.8 The third concerns Bond and what it dictates when it
comes to the Tenth Amendment challenge and how the statute should otherwise be
interpreted. And the fourth concerns the Necessary and Proper clause and whether it can
operate by itself as an independent source of constitutional power.9
a. The court cannot invent a power that Congress did not invoke.
At first glance, the government’s strongest argument (if correct) appears on page
16 of its brief. There it noted that Bond did not consider whether the statute at issue could
7 R.89:14–17.
8 Id. at 11–22 (citing Gonzales v. Raich. 545 U.S. 1, 26–33 (2005)).
9 Id. at 23–24.
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be sustained under the Commerce Clause. That’s true, and beside the point. And then the
government makes this representation: “But it has long been settled that, apart from any
authority invoked by Congress, the Court ‘will determine for itself whether the means
employed by congress have any relation to the powers granted by the constitution.’”10
That is a bold statement. And here’s why: such a doctrine would allow courts to guess at
what Congress could have done and then substitute that part of the Constitution in for
what Congress specifically did. The parenthetical that appears in the government’s
supporting footnote makes that explicit: “The question of the constitutionality of action
taken by Congress does not depend on recitals of the power which it undertakes to
exercise.”11 So the first question is whether the government’s representation is true: can
this Court really do that?
The answer is it can’t, and the cases that the government cites aren’t as broad as
the quotes that the government plucks out of them suggest. The government’s quote
about it has “long been settled” is from Cherokee Nation v. Southern Kan. Ry. Co.12 There,
the Court was dealing with the question of whether eminent domain power attached to
Congress’s Act of 1884, allowing trans-Atlantic railroads running through Indian
Territory.13 And the issue was not whether Congress had invoked its Commerce Power
10 Id. at 26–30.
11 R.89:16, n.41 (citing and quoting Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144 (1948)).
12 135 U.S. 641, 657 (1890)
13 Id. at 657.
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(it clearly had: the Act was dealing with a trans-Atlantic railroad after all) but whether it
came with the power to take private lands:
It is because it is a public highway, and subject to such control, that the

corporation by which it is constructed, and by which it is to be maintained,
may be permitted, under legislative sanction, to appropriate private
property for the purposes of a right of way upon on making just
compensation to the owner, in the mode prescribed by law.14
So the issue in Cherokee Nation was not about guessing at Congressional power but
whether it assumed the granting of other powers—namely, the ability to condemn land
for use of constructing and maintaining the railroad, the prototypical instrumentality of
interstate commerce.15 Thus, the government’s statement on page 16 and the argument it
tried to support with that quote should be given no credence. The principle it wants to
invoke doesn’t flow from the case.
The same goes for its citation to and parenthetical quote from Woods v. Cloyd W.
Miller Co.16 The government’s quote is (to be clear) accurate but inapposite because in
Woods, the Court was dealing with whether “the war power sustains this legislation.”17
Every student of history (or reader of Youngstown Steel) knows that the Supreme Court’s
War Powers cases are limited to that particular time and not a basis for understanding
Congress’s or the President’s power in times of peace.18 Thus, while Lincoln suspended
14 Id. at 657–58.
15 Houston, E. & W. Texas Railway Co. v. United States, 234 U.S. 342, 351–52 (1914).
16 333 U.S. 138 (1948).
17 Id. at 141.
18 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952); see also id. at 643–55 (Jackson, J.,
concurring).
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habeas corpus, and Wilson (with Congress) shut down the distilleries “to husband the
supply of grains and cereals depleted by the war effort,” and Roosevelt did some
deplorable actions, those powers were sustained for a specific time and reason: we were
at war.19 And courts have been clear that in times war the Constitution allows the
government broad powers because to do otherwise would (in the words of Woods) “be
paralyzing. It would render Congress powerless to remedy conditions the creation of
which necessarily followed from the mobilization of men and materials for successful
prosecution of the war. So to read the Constitution would be to make it self-defeating.”20
That’s all to say, war-power cases are not cited as indicative of how the Constitution
should be read in times of peace.21
Thus neither Cherokee Nation, nor Woods, provide any foundation for the
government’s argument that this Court can simply invoke the Commerce Power when
Congress has chosen not to. If the government’s cases weren’t so off, and this really just
came down to logic and first principles the government’s argument still wouldn’t make
sense. After all, if that were the case then Bond is simply dicta. The Supreme Court, like
any appellate court, can uphold a judgment on any ground found in the record.22 So if it
19 Woods v. Lloyd W. Miller Co., 333 U.S. 138, 142 (1948); Korematsu v. United States, 323 U.S. 214, 219-
20 (1944); The Amy Warwick, 67 U.S. 635, 670 (1862) (Lincoln’s naval blockade and seizure of ships upheld);
see also David J. Barron & Martin S. Lederman, “The Commander in Chief at the Lowest Ebb—A
Constitutional History,” 121 Harv. L. Rev. 941, 993-1025 (Feb. 2008).
20 Id. at 143.
21 Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 163 (1919); Ex Parte Milligan, 71 U.S.
2, 21 (1866).
22 See Simmons v. Pryor, 26 F.3d 650, 653 (7th Cir. 1993); Sherrod v. Lingle, 223 F.3d 605, 614 (7th Cir.
2000).
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didn’t matter what Congress said in Bond (we’re using the Treaty Power) but what could
have been done (we’re using the Commerce Power) then that was all a lot of briefing and
fretting for nothing. And it’s not as though the Supreme Court doesn’t know its own
precedents or have the ability to creatively get out of deciding a thorny case—that point
is pretty well established.23
Furthermore, experience and importantly case law contradict the idea that
Congress can silently invoke powers and the courts will just judge what Congress could
have done. If the government’s argument were true then in Lopez the Court would have
just looked at the fact that the gun crossed state lines. Case closed. Or in Morrison, the
court could have just looked at the fact that the defendant drove in a car—an
instrumentality of interstate commerce. But in neither case did the Court do that. Instead,
when it comes to upsetting the federal-state balance, the Supreme Court’s teaching has
been clear and consistent: Congress has to be explicit and unmistakably clear. That point
has been made over and over again:
o From Bass: “we will not be quick to assume that Congress has meant to
effect a significant change in the sensitive relation between federal and state
criminal jurisdiction. In traditionally sensitive areas, such as legislation affecting
the federal balance, the requirement of a clear statement assures that the legislature
23 See e.g. Masterpiece Cakeshop, Ltd., v. Co. Civil Rights Commission, 138 S.Ct. 1719 (2018); Crowell v.
Benson, 285 U.S. 22, 62 (1932).
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has in fact faced, and intended to bring into issue, the critical matters involved in
the judicial decision.”24
o From Will v, Michigan Dept. of State Police: “The language of § 1983 also falls
far short of satisfying the ordinary rule of statutory construction that if
Congress intends to alter the usual constitutional balance between the States and
the Federal Government, it must make its intention to do so unmistakably clear in
the language of the statute.”25
o From Gregory v. Ashcroft: “Congressional interference with this decision of
the people of Missouri, defining the constitutional officers, would upset the
usual constitutional balance of federal and state powers. For this reason, it
is incumbent upon the federal courts to be certain Congress’ intent before finding
that federal law overrides this balance.26
o From Cleveland v. United States: “We resist the Government’s reading of
§ 1341 as well because it invites us to approve a sweeping expansion of
federal criminal jurisdiction in the absence of a clear statement by Congress.”27
o From Raygor v. Regents of Univ. of Minn.: “When Congress intends to alter
the ‘usual constitutional balance between the States and the Federal
24 United States v. Bass, 404 U.S. 336, 349 (1971) (emphasis added).
25 491 U.S. 58, 65 (1989) (quotation omitted) (emphasis added).
27 531 U.S. 12, 24 (2000) (emphasis added).
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Government, it must make its intention to do so unmistakably clear in the
language of the statute.”28
o And for good measure, once more from Bond II: Because our constitutional
structure leaves local criminal activity primarily to the States, we have
generally declined to read federal laws as intruding on that responsibility,
unless Congress has clearly indicated that the law should have such reach.29
So given that precedent and long-string of teaching, this Court has to ask: where
is this explicit statement from Congress. It’s not in the statute—§ 2332i says nothing about
the Commerce Power. It’s not in the findings. It’s nowhere. And in all seventy pages of
the government’s brief they don’t identify it. Instead, they cite two inapplicable cases—
one over a century old and the other about War Powers. Neither of which provide any
support for the government’s argument that this Court can assume that Congress
invoked its Commerce Power and judge the case as though it had.
That takes care of the government’s argument under the traditional Commerce
Clause analysis. It also the government’s stray allusions to other constitutional powers—
including, the fact that Ryan used the internet and that this prosecution is about
“maintaining the integrity of the Postal Service.”30 Those powers aren’t invoked in
§ 2332i, and nothing outside the statute matters when judging its constitutionality. If

29 Bond II v. United States, 572 U.S. 844, 848 (2014).
30 R.89:15.
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those points did matter then Bond was (again) wrongfully decided because she bought
the chemicals on Amazon and had them shipped to her.31 But again, the government’s
argument is off; this Court is not meant to look at all that Ryan did and see what Congress
could have done but to judge the constitutionality of what it choose to do.
b. The regulation of radioactive material and the criminalization in § 2332i isn’t

anything close to what happened in Raich.
An interesting constitutional question surrounds what happens when Congress
seeks to regulate an entire market. That’s what happened in Raich. Congress had taken
over the entire market of controlled substances. In Raich, the Supreme Court was clear:
that’s a licit use of the Commerce Power; Congress has taken over the market—
everything from a boat load of cocaine imported from Colombia to a pot plant growing
in a burnout’s closet off Willy Street was part of Congress’s attempt to” control the
national market in drugs.32 All of it’s part of and affected by the market—the market that
Congress controls.
Now dual sovereignty isn’t inconsistent with that: both the states and the feds can
make pot illegal or just the federal government. But the federal government doesn’t give
the States the power to opt out of the market or decide whether it will be illegal as a
federal and state matter. That would, in fact, be an example of the federal government
not controlling the market and instead allowing the States to control it themselves. A
31 Bond v. United States, 572 U.S. 844, 852 (2014) (Bond II).
32 Raich, 545 U.S. at 10.
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somewhat parallel problem was at issue in Murphy v. NCAA and what Congress could
not do under the Tenth Amendment in regards to allowing states to regulate sports
gambling.33 But for purposes of the government’s argument that the regulation under
§ 2332i is no different from what was upheld in Raich, the question is whether Congress
has created a Raich-type control of the market for radioactive materials. The quick answer
is it hasn’t.
There are, in fact, three problems with the government analogizing this to Raich.
First, Congress hasn’t stepped into the market to control everything with radioactive
properties all the way down to the last microcurie. And as a practical matter, it probably
couldn’t; radioactive material is a broad category of substances—some occur naturally
and some are made in a lab. Most of it is benign. Remember: bananas are radioactive, so
is kitty litter, and so are fluorescent lights. And some of the more dangerous radioactive
substances are naturally occurring and are found in abundance in the continental United
States, specifically in Utah and Colorado—even Virginia.34 But beyond the practicalities
of trying to regulate bananas and Jonny Cat, Congress has not taken over the market of
radioactive materials the same way it has with controlled substances. Indeed, the
government simply says this is like Raich without explaining why or how. Now, that’s
33 Murphy v. NCAA, 138 S.Ct. 1461, 1478 (2018).

34 See Virginia Uranium, Inc. v. Warren, --- S.Ct. ---, 2019 WL 2493918 (June 17, 2019) (“Totaling 119
million pounds of uranium ore, the [Coles Hill deposit in Virginia] is the Nation’s largest.”) (Ginsburg, J.,
concurring).
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the first big difference between § 2332i and what was upheld in Raich: the government
has not taken over the market.
Just today, the Supreme Court held that the invocation of “nuclear safety” is
insufficient to resolve a preemption dispute between federal and state law.35 Virginia
Uranium and its partners sought to mine the Coles Hill uranium deposit, which is about
35 miles north of Virginia’s border with North Carolina. Virginia has had a ban on
uranium mining for decades.
The prospectors sued and the dispute reached the Supreme Court. In Virginia
Uranium, in two opinions joined by three Justices apiece, it held that the Atomic Energy
Act does not preempt any state law with nuclear safety implications. Virginia’s efforts to
regulate uranium mining, both opinions observed, are a prime example. Justice
Gorsuch’s opinion announced the Court’s judgment; his opinion endorsed the conclusion
that “every indication in the law before us suggests that Congress elected to leave mining
regulation on private land to the States and grant the NRC regulatory authority
only after uranium is removed from the earth.”36 Justice Ginsburg’s concurrence made an
analogous point: a state law that implicates nuclear safety doesn’t upset any balance
struck by the Atomic Energy Act if the federal government never regulated the activity
in the first instance. “[T]he Federal Government does not regulate the radiological safety
35 See Virginia Uranium at *9.

36 See Virginia Uranium at *9. Justice Gorsuch’s opinion was joined by Justices Thomas and
Kavanaugh.
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of conventional uranium mining on private land, so federal law struck no balance in this
area.”37
It’s worth underscoring that despite this fractured Court, six justices rejected the
crude view that radiation safety is the exclusive purview of the federal government. As
Justice Ginsburg pointed out in her opinion’s introduction, “I reach the same bottom-line
judgment as does Justice Gorsuch: The Commonwealth’s mining ban is not
preempted.”38 She wrote separately to challenge “his discussion of the perils of inquiring
into legislative motive,” which she argued “sweeps well beyond the confines of [the]
case.”39
So, resorting to radiation safety alone won’t do the job. Neither will redefining the
market. Even if the market were defined on a smaller scale than “radioactive material,”
saw, just “dangerous radioactive material,” Congress still has not taken over the market.
The government misstates or fails to appreciate the federal-state division of regulatory
authority over nuclear radiation. Instead of creating a market regulation like the
Controlled Substances Act at issue in Raich, when it comes to radioactive material
Congress has created a system where states can opt out of federal control. What follows
is the math that the government failed to put forth in its brief. For decades, federal law
has authorized the Nuclear Regulatory Commission to enter into an agreement with any
37 Virginia Uranium at *15 (Ginsburg, J., concurring). Justices Kagan and Sotomayor joined the
opinion.
38 Virginia Uranium at *10 (Ginsburg, J., concurring).
39 Virginia Uranium at *10 (Ginsburg, J., concurring).
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state for the “discontinuance of the regulatory authority of the Commission” over certain
materials.40 In return, the state has the recognized “authority to regulate the materials
covered by the agreement for the protection of the public health and safety from radiation
hazards.”41
The universe of materials that an agreement may cover is not a narrow one. It
includes byproduct materials, source materials, and “special nuclear materials in
quantities not sufficient to form a critical mass.”42 Each category is statutorily defined.
The term “byproduct material” effectively covers any radioactive waste or remainders.43
“Source material” means uranium and thorium and certain ores.44 “Special nuclear
material” includes plutonium, uranium-233 and -235, but not any source material.45 The
term “quantities not sufficient to form a critical mass” means amounts too small for
making an atomic bomb.46
States that have chosen to take on this regulatory role for these three categories of
materials are called Agreement States. Those states that have left the task to the Nuclear
Regulatory Commission are called Non-Agreement states. There are 38 Agreement
States. An Agreement State (like the name suggests) agrees to regulate those three
categories of materials “using its own legislation, regulations or other legally binding
40 42 U.S.C. § 2021(b); see also Pub. L. 86-373, tit. I, § 274 (Sept. 23, 1959).
41 Id., § 2021(b).
42 See 42 U.S.C. § 2021(b)(1)-(3).
43 See 42 U.S.C. § 2014(e) (defining “byproduct material”).
44 See id., § 2014(z); 10 C.F.R. § 40.4.
45 See 42 U.S.C. § 2014(aa).
46 See 10 C.F.R. § 150.11 (“Critical mass”).
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provisions.”47 And Wisconsin is among the Agreement States. It has chosen to opt-out of
federal control, and consistent with the Tenth Amendment it has used its own legislation
and regulations to control these materials.
Wisconsin entered its Agreement with the NRC pursuant to Wis. Stat. § 254.335,
which authorized its governor negotiate its acceptance of regulatory authority over “by-
product material, source material and special nuclear material[.]”48 Among Wisconsin’s
laws regarding radioactive material is its prohibition on possession without a license.49
Wisconsin punishes the unlicensed possession of radioactive material with forfeiture:
from $100 to $100,000 per day.50 The term “radioactive material” means “any solid, liquid
or gaseous substance which emits ionizing radiation spontaneously, including
accelerator-produced material, by-product material, naturally occurring material, source
material and special nuclear material.”51
Wisconsin’s administrative regulations hammer out what this means in practice.
For the present purposes what matters is Po210. Under the regulations, anyone may
possess, say, an air-purifier or static-eliminator that contains sealed Po210, as long as the
Po210 measures no more than 500 microcuries.52 Moreover, any material containing 0.1
47 Nuclear Regulatory Commission, “What is an Agreement State?” available at

https://www.nrc.gov/about-nrc/state-tribal/agreement-states/wyoming-faq.html#2 (emphasis added).
48 See Wis. Stat. § 254.335.
49 See Wis. Stat. § 254.365.
50 See Wis. Stat. § 254.45.
51 See Wis. Stat. § 254.31.
52 See Wis. Admin. Code HS § 157.09(2)(B)(9).
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microcurie or more of Po210 must be properly labelled.53 And transfers of Po210 must be
reported if thresholds measured in curies, i.e., millions of microcuries, are reached.54
Those are important points to consider and understand when trying to capture the
government’s argument that this is no different from Raich. Wisconsin has opted out of
federal regulation of radioactive material, and in particular it has promulgated its own
regulatory regime for the possession of Po210.
The Controlled Substances Act evinces a very different policy goal than the Atomic
Energy Act. “In the CSA, Congress has undertaken to extinguish the interstate market in
Schedule I controlled substances[.]”55
The Atomic Energy Act isn’t about extinguishing markets. Instead, it expresses the
policy that “the development, use, and control of atomic energy shall be directed so as to
make the maximum contribution to the general welfare,” consistent with national
security.56 It also states that “the development, use, and control of atomic energy shall be
directed so as to promote world peace, improve the general welfare, increase the standard
of living, and strengthen free competition in private enterprise.”57 Compare these policies
with the findings and policies in the Controlled Substances Act. They include the
following:
53 Wis. Admin. Code DHS § 157, App’x F.

54 See id., App’x T.
55 Raich, 545 U.S. at 39 (Scalia, J., concurring).
56 42 U.S.C. § 2011(a) (“Congressional declaration of policy”).
57 42 U.S.C. § 2011(b).
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 “The illegal importation, manufacture, distribution, and possession and improper
use of controlled substances have a substantial and detrimental effect on the health
and general welfare of the American people.”58
 “Local distribution and possession of controlled substances contribute to swelling
the interstate traffic in such substances”59; and
 “Federal control of the intrastate incidents of the traffic in controlled substances is
essential to the effective control of the interstate incidents of such traffic.”60
The CSA aims to defeat a scourge. The AEA aims to responsibly nurture atomic energy’s
use for the public’s benefit.
Beyond the fact that Congress has not stated that it is taking over and regulating
the market and the fact that the only regulation it has is an opt-out, the other big problem
with the government’s theory is that the statute is not aimed at possession or use of
radioactive material. It is addressed towards a specific use of the materials: knowingly
and unlawfully using it to cause death or great bodily injury.61 The statute doesn’t aim at
regulating materials but preventing them from being used as a poison. That is, the statute
is agnostic about what the radioactive substance is (could be bananas, cat litter, or
uranium) the statute only cares that a person is not unlawfully killed by the unstable
nuclei. That’s not (again) regulating a market. It’s just saying you can’t unlawfully poison
58 21 U.S.C. § 801.
59 21 U.S.C. § 801.
60 21 U.S.C. § 801.
61 18 U.S.C. § 2332i
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a person with radioactive material. And that is probably very wise as a matter of state
law, but it’s not connected to a market regulation under Congress’s Commerce Power.
After all, Congress couldn’t pass a law criminalizing all gun-homicides based on the fact
that firearms travel in interstate commerce. Thus, there is no basis to uphold § 2332i as a
market regulation under the Commerce Clause. The statute is instead (as Congress stated
it was) the product of a treaty. The issue is whether the Treaty Power allows Congress to
criminalize suicide by poisoning.
c. The Treaty Power cannot be used to give Congress greater power than what
it’s been given in Article I.
From Chief Justice Marshall to Chief Justice Roberts, this point has been accepted
about the limits of Congressional authority: “’Congress cannot punish felonies generally;’
it may enact only those criminal laws that are connected to one of its constitutionally
enumerated powers.”62 Here, the issue is only whether Congress can enact § 2332i under
the Treaty Power. To that end, the Court is confronted with two different presentations
on the Treaty Power. The defense will not reiterate or simply requote Bond II, the majority
and the dissent, on this point. It’s the governing case and the Court will (we really hope)
read it thoroughly and decide for itself what it demands and what it teaches lower courts
about the Tenth Amendment and the Treaty Power.
62 Torres v. Lynch, --- U.S. ---, 136 S. Ct. 1619, 1624 (2016) (quoting Cohens v. Virginia, 6 Wheat. 264, 428
(1821)).
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Rather than marching quote by quote through the government’s brief and noting
what the government left out or what that stray quote really means, this section will
address the foundational problems with using the Treaty Power to enact § 2332i and the
problems with the government’s representations about how it operates and the power it
confers. The first point is probably the most important to getting everything else right:
the Treaty Power does not stand alone as a super-legislative power. “I doubt the Treaty
Power creates such a gaping loophole in our constitutional structure.”63 It has to be read
in harmony with all of the other powers Congress has in Article I. That is, to state the
obvious: Congress could not make a treaty with, say, Tuvalu to suspend habeas corpus
and then have it upheld under the Treaty Power. Nor, for that matter, could Congress
make a treaty with Canada that would extend Presidential terms to five years. The Treaty
Power, in the words of one scholar, has to be read in conjunction and not opposition to
the rest of the Constitution; otherwise “it is in deep tension with the fundamental
constitutional principle of enumerated legislative powers.”64 So a power that Congress
doesn’t have can’t be assumed under the Treaty Power, and the Treaty Power can’t be
used to implement an otherwise unconstitutional law.65 In fact, one of the cases the
63 Raich, 572 U.S. at 883 (Scalia, J., concurring); see also 74 Am.Jur. 2d Treaties § 4.
64 Nicholas Quinn Rosenkranz, “Executing the Treaty Power,” 118 Harv. L. Rev. 1867, 1868 (April
2005).
65 See, e.g., Holden v. Joy, 21 L.Ed. 523 (1872) (“[T]he framers of the Constitution intended that [the
Treaty Power] should extend to all those objects which in the intercourse of nations had usually been
regarded as the proper subjects of negotiation and treaty, if not inconsistent with the nature of our government
and the relation between the States and the United States.” (Emphasis added)).
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government cites explicitly states that fact.66 More on that in three pages. Those are the
basic principles that animate this question and govern the result.
In contrast to that logic and those principles, the government presents a different
view of the Treaty Power. Like the government’s commerce-clause argument, it’s best to
check not just the government’s logic but the cites and quotes it uses to build its syllogism.
For the government’s major premise (on page 18), it uses a quote from Kleppe v. New
Mexico, Congress may “enter into and enforce a treaty . . . despite state objections’ and
that a valid treaty preempts inconsistent state law.”67 That quote is of limited worth.
Particularly because Kleppe was specifically about Congress’s power under the Property
Clause: “We hold today that the Property Clause also gives Congress the power to protect
wildlife on the public lands, state law notwithstanding.”68 To be clear, federal law always
trumps state law, including when a treaty is at issue, but that’s not because Congress
made a treaty to that effect; it’s because of the Supremacy Clause.69
Building on that quote from Kleppe, the government moves on to its minor premise:
Moreover, “the treaty-making power was never possessed or exercised by the states
separately; but was originally acquired and always exclusively held by the Nation, and,
therefore, could not have been among those carved from the mass of state powers, and
66 R.89:19 (citing Reid v. Covert, 354 U.S. 1, 17-18 (1957)). Reid states that the Treaty Power does not
“authorize what the constitution forbids, or change in the character of the government or in that of one of
the States, or a session of any portion of the territory of the latter, without its consent.” Id. at 17-18 (quotation
and citation omitted).
67 R.89:18 (quoting 426 U.S. 529, 545 (1976)).
68 Id. at 546.
69 Mutual Pharmaceutical Co., Inc. v. Bartlett, 570 U.S. 472, 479-80 (2013).
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handed over to the Nation.”70 That’s an interesting observation, but the quoted passage
doesn’t really fit—context would be key to understanding what it precisely means. But
when you go to check the context, the quote doesn’t come from a seminal case; instead,
the government got that quote from a century-old treatise that isn’t authoritative—at least
not from what Google shows about it. While the government’s quote is a bit off, when
you go to the supplementary cite in the footnote that is actually helpful—just not to the
government’s position.
After quoting the treatise, the government cites United States v. Curtiss-Wright Exp.
Corp., which is about executive power and not the Treaty Power.71 The case dealt with
the President’s power to forbid sale of arms within the United States to those engaged in
armed conflict around the world—specifically “Bolivia and Paraguay.”72 And the appeal
tackled whether this amounted to “a delegation of lawmaking power.”73 In reversing the
lower court, the Supreme Court split executive power between those affecting internal
and external affairs. When it came to external affairs and dealing with national security
outside the borders, the President retained the power concomitant with what the crown
had.74 No one disputes that.
70 R.89:19 (quoting George Sutherland, Constitutional Power and World Affairs 156 (1919)).
71 299 U.S. 304, 315-318 (1936).
72 Id. at 312–13.
73 Id. at 315.
74 Curtiss-Wright, 299 U.S. at 316, 319-20.
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But when it came to internal affairs (i.e., domestic matters) the Court reaffirmed
the foundational point that the defense’s entire argument is built on. The Court’s
observation, while lengthy, is worth carefully reading:
The broad statement that the federal government can exercise no powers
except those specifically enumerated in the Constitution, and such implied
powers as are necessary and proper to carry into effect the enumerated
powers, is categorically true only in respect of our internal affairs. In that
field, the primary purpose of the Constitution was to carve from the general mass
of legislative powers then possessed by the states such portions as it was thought
desirable to vest in the federal government, leaving those not included in the
enumeration still in the states.75
The defense couldn’t have said it better: that power to punish felonies (including
poisoning and suicide) was left to the States and protected by the Tenth Amendment.
Nothing in Curtiss-Wright calls that into question; instead, it actually re-affirms it.
Returning to the rest of the government’s syllogism, it concludes (after that quote
from the treatise) with “[t]hus, the Tenth Amendment’s reservation of rights to the States
is ‘no barrier’ to the adoption of treaties and to the enactment of treaty-implementing
legislation.”76 There is, in fact, no support for that conclusion—the major and minor
premise don’t support it. And even if the conclusion could stand as a self-evident
statement, it’s worth mentioning this final point: the case it quotes from in that conclusion
Reid v. Covert, like Curtiss-Wright, fully supports the defense’s position.77 In Reid, the
Court noted that a treaty is no different from a statute and, like a statute, it must (as the
75 Id. at 315–16 (emphasis added).

76 R.89:19.
77 354 U.S. 1, 18 (1957).
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defense has insisted) accord with the Constitution: “It would be completely anomalous
to say that a treaty need not comply with the Constitution when such an agreement can
be overridden by a statute that must conform to that instrument.”78 In other words, a
treaty has the same power as a statute, and a statute that violates the Constitution is void,
ergo that’s also the case when a treaty violates the Constitution.
In sum, there is nothing in the government’s brief (especially its citations) that
undermines or calls into question the fact that § 2332i must comply with the Constitution.
Indeed, as if the cases and principles provided by the defense’s opening brief weren’t
enough, even the government’s own cases affirm those principles. Thus, there is nothing,
absolutely nothing, to support the government’s argument that under the Treaty Power,
Congress can legislate beyond its enumerated powers or in contravention of the Tenth
Amendment. Thus, § 2332i stands as unconstitutional.
d. The Necessary and Proper Clause does not operate independently of

Congress’s enumerated powers.
That addresses the core of the government’s arguments for why or how § 2332i is
constitutional. But at different points in the brief, it raises additional arguments for
sustaining the statute apart from what Congress stated it was using: the Treaty Power.
The defense has already deal with the Commerce Clause and the power over Post
Officers. But there remains one additional ground that the government cites, but it’s also
unhelpful and misplaced: sustaining the statute under the Necessary and Proper Clause.
78 Id.
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Among the government’s misstated assumptions of Congressional power is that
the Necessary and Proper Clause provides authority beyond what’s specifically
enumerated in Article I. But that’s just not the case. The Necessary and Proper Clause
gives Congress license to make “all Laws which shall be necessary and proper for
carrying into Execution” powers given by the Constitution.79 However, the Necessary
and Proper Clause “empowers Congress to enact laws in effectuation of its enumerated
powers,” but it is not a self-contained grant of power.80
Rather, the actions behind the clause must always be bound to some other
enumerated power, and consistent with the principles of separation of powers,
federalism, and individual rights.81 In other words, the Necessary and Proper Clause
requires a showing that every statute passed by Congress “must be based on one or more
of its powers enumerated in the Constitution.”82 As Chief Justice Roberts stated, while
quoting Chief Justice Marshall, Congress “’can exercise only the powers granted to it,’
including the power to make ‘all Laws which shall be necessary and proper for carrying
into Execution’ the enumerated powers.”83 Thus, since the Treaty Power fails, the
government cannot hope to find refuge under the Necessary and Proper Clause. And the
government’s argument that it can or does is just an inaccurate understanding of our
constitutional structure.
79 Bond II, 572 U.S. at 854 (quoting U.S. Const., Art. 1 § 8, cl. 18).
80 See Gonzales v. Raich, 545 U.S. 1, 39 (2005) (Scalia, J., concurring).
81 See id.
82 United States v. Morrison, 529 U.S. 598, 607 (2000).
83 Bond II, 572 U.S. at 854 (quoting McCulloch v. Maryland, 4 Wheat. 316, 405 (1819)).
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3. The statute’s text is properly interpreted in the defense’s opening brief and
the government’s contrary arguments fail to appreciate the statute’s
grammar.
The bulk of the brief has been devoted to the Constitution and its demands. But
just as important as whether Congress can enact § 2332i under the Treaty Power is the
issue of what Congress specifically proscribed. To answer that the Court must begin and
end with the text and ask by its plain meaning, what does § 2332i prohibit? For its part,
the defense cited the applicable cases on how adverbial phrases operate in understanding
statutes and in ordinary English. They modify all the elements that follow Liparota, X-
Citement Video, and Flores-Figueroa, and the discussion in the opening brief should make
that apparent.84
In response, the government has offered two separate canons of statutory
construction that it believes undermine the defense’s argument and call for a different
interpretation of the text, and a case on how to interpret § 2423.85 There are four problems
with the government’s argument. First, it doesn’t spell out how the statute can be read if
not as the defense urges it. Second, the government argues that the last antecedent rule
applies, but it fails to appreciate that the statute doesn’t contain a pronoun that an
antecedent would modify. So the canon doesn’t apply. And third, the government has
crafted a creative argument with its rule against surplusage. The problem though is that
it has created a strawman by positing a problem in another section of the statute,
84 R.68:61–64.
85 R.89:48–53 (citing and quoting United States v. Cox, 577 F.3d 833 (7th Cir. 2009)).
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subsection B, and trying to make that relate to the one that Ryan is charged under,
subsection A. While intrepid the argument goes nowhere because given some scrutiny
not only is it applying the canon to a different subsection, it is also citing redundancies
that aren’t really redundancies when the statute is read as a whole. And finally, the
government’s analogy to Cox is off-base. That case’s statute does not have a similar
grammatical structure and critically it dealt with transporting minors for prostitution—
i.e., a traditional strict-liability offense. Thus for the reasons that follow the Court should
interpret the text according to its plain meaning and read it to demand that Ryan have
intended to unlawfully cause death or serious bodily injury. Additionally, given the
importance of this issue, the Court should appoint an expert under Rule 705 to help
determine the grammatical operation and structure of § 2332i.
i. The government’s brief does not parse the statute and explain how it
operates.
The biggest problem with the government’s argument lies with its failure to
explain the statute given the words and syntax that Congress chose. It rehearses that there
is a limiting clause (“with intent to cause death or serious bodily injury”) and then
submits that “[a]ccording to the rule of the last antecedent that phrase should only be
read as modifying the noun or phrase that it immediately follows, in this case ‘possesses
radioactive material or makes or possesses a device.’”86 And it follows that up by quoting
the Supreme Court to conclude: “In this case it would be ‘a heavy lift’ to carry ‘knowingly’
86 R.89:44.
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and ‘unlawfully’ to the subsequent prepositional phrases it applies.”87 But nowhere does
it explain how that is the case or (for that matter) why that would be the case.
Yet the defense has explained how “knowingly and unlawfully” operate to modify
the elements that follow and why those words operate that way. We even embedded a
picture. And the defense has explained that if Congress wanted to keep “knowingly and
unlawfully” from operating upon all the elements that followed, Congress could have
written the statute this way: “Whoever, with intent to cause death or serious bodily
injury, knowingly and unlawfully possesses radioactive material shall be punished.”
That is, of course, the way other statutes are written.88 All of that is to say, we’re dealing
with a statute here that imposes a potential life sentence. Ryan, like the rest of society, has
the right to demand that it be interpreted fairly and in line with the rules of grammar and
that any ambiguity be resolved in his favor. It’s not enough that the government
dismisses the defense’s argument without offering a contrary interpretation that is
moored to the statute’s text and the rules of grammar.
ii. The last-antecedent rule is inapplicable here because there is no

pronoun, relative pronoun, or demonstrative adjective.
The last-antecedent rule is well understood in grammar and equally applicable in
statutory interpretation. It reflects the understanding of simple grammar (as explained in
The Elements of Style) that “[t]he position of the words in a sentence is the principal means
87 Id.
88 See 18 U.S.C. § 1365(b) (“Whoever, with intent to cause serious injury to the business of another
person, taints consumer products….”); 18 U.S.C. § 2385 (“Whoever, with intent to cause the overthrow or
destruction of any such government, prints, publishes….”).
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of showing their relationship,” and “[m]odifiers should come, if possible, next to the
words they modify.”89 When it comes to statutes, it’s all the same principle:
“a pronoun, a relative pronoun, or demonstrative adjective generally refers to the nearest
reasonable antecedent.”90
Citing that canon, the government is right that in Barnhart v. Thomas, the teenager
cannot escape trouble if the parents warn him: “You will be punished if you throw a party
or engage in any other activity that damages the house” and he has a party but it doesn’t
damage the house.91 The adjectival clause “that damages the house” refers back to the
nearest reasonable antecedent “any other activity.” That is, the final descriptive clause
“that damages the house” does not reach back to the party.92 Fair enough. And the same
is true when it comes to pronouns and relative pronouns: a he or she, it or that. They
generally refer to the last antecedent, the phrase or noun that is nearest, but that can be
overcome “by other indicia of meaning.”93
Those are important points, but ultimately none of it matters here because the
statute doesn’t contain a pronoun, a relative pronoun, or an adjectival phrase that an
antecedent refers to. Here is the statute sketched again with all its principal parts labeled.
89 William Strunk Jr. & E.B. White, The Elements of Style 28, 30 (4th ed. 2000).
90 Bryan A. Garner and Antonin Scalia, Reading Law 144.
91 Barnhart v. Thomas, 540 U.S. 20, 26 (2003).
92 Id.
93 Lockhart v. United States, 136 S.Ct. 958, 969–70 (Kagan, J., dissenting) (quotation omitted).
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What the government is trying to do is take the entire prepositional phrase (“with the
intent to cause death or serious bodily injury”) and say that it only modifies the noun or
phrase that follows (“possesses radioactive material or makes or possesses a device”).
Carefully read pages 43-44 and that’s its entire argument.
Here’s the problem: that’s not the last-antecedent rule—the verb phrase (possess
radioactive material) does not contain a pronoun that’s defined by the prepositional
phrase that follows. Rather, this is simply a matter of the whole verb phrase’s being read
as one. After all, the verb phrase contains both the prepositional phrase (“with intent to
cause. . . “) and the verb phrase (“possesses radioactive material”) are on the same level;
they should be read as one. But that doesn’t implicate the prepositional phrase somehow
defining something earlier in the statute. The prepositional phrase doesn’t modify
anything. Instead, it is modified by the adverbial phrase “knowingly and unlawfully.”
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iii. The rule against surplusage is inapplicable here.
Beyond the problems with the government’s reading of the statute and the
inapplicability of the last-antecedent rule, it also argues that the defense’s reading will
lead to redundancy with other statutory provisions within § 2332i.94 And thus, the
“knowingly” and “unlawfully” phrases don’t go any further than to the possession
element. Here’s the problem with the government’s argument. First, it relies entirely
upon a supposed redundancy in different subsections: § 2332i(a)(1)(B)(i)–(iii). How it
might affect other subsections not at issue here does not change how § 2332i(a)(1)(A)
must be interpreted. Second, the surplusage cannon is not a grammatical canon, it’s
simply a contextual canon.95 It “must be applied with judgment and discretion, and with
careful regard to context.”96 In no sense should it up end the ordinary meaning; it’s
simply used by courts to avoid “an interpretation that renders [the statute] pointless.”97
There is nothing in the government’s argument that would affect the plain
meaning of the statutory provision that Ryan is charged with. What’s more, the
government’s example of absurdity shows how far it has to reach. It posits:
Imagine a situation where a U.S. citizen is threatening to dump radioactive

material into the New York City water supply unless the United States re-
enters the Iran Nuclear Deal. The act of signing the Iran Nuclear Deal is not
an unlawful act in and of itself, therefore using defendant’s reading of the
statute, that person could not be prosecuted.98
94 R.89:44.
95 Reading Law at 174.
96 Id. at 176.
97 Id.
98 R.89:47.
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While defense attorneys don’t like to point out potential charges for future clients, the
government may want to think of charging that defendant under § 2332i(a)(1)(A). Since
the defendant in the hypothetical would “knowingly and unlawfully” possess
radioactive material with intent to cause “unlawful bodily harm and death.” That is all
to say, the government’s défilé d’horribles and contrived instances of surplusage don’t
affect the plain meaning of § 2332i and how it must be read.
iv. The government’s analogous cases are of limited, bordering no, value.
With the last-antecedent rule and the canon against surplusage, the government
spends several pages trying to argue that the defense’s interpretation is in opposition to
two Seventh Circuit cases: Cox and Vasquez.99 There’s no question that statutes with a
similar grammatical structure would inform how this Court should interpret § 2332i.
That’s why the defense cited and discussed Liparota, Flores-Figueroa, and X-Citement Video.
They affirm the principle that the adverbial phrase modifies all the elements that follow.
The problem with the government’s comparison to other cases is that neither
statute at issue provides a similar grammatical structure or rule to what this Court has to
interpret in § 2332i. In Cox, the Court was interpreting § 2423(a) (traveling with a child
across state lines to commit prostitution) and its demands; in Vasquez, the Court was
interpreting § 2250 (the sex-offender registration statute). In Cox, the statute provides: “A
person who knowingly transports an individual who has not attained the age of 18 years
99 R.89:50–53 (citing and discussing Cox, 577 F.3d 833 and United States v. Vasquez, 611 F.3d 325 (7th
Cir. 2010)).
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in interstate commerce” shall be imprisoned not less than 10 years.100 The structure of §
2423(a) is not analogous to § 2332i. The issue there was whether the defendant had to
know the individual was a minor. The “who” in the statute is a restrictive clause, it limits
the class of people that “individual” refers to. So it’s illegal to take an individual across
state lines for prostitution purposes—when that person is a minor. And consistent with
the long-standing principles of sex-offenses with minors, knowledge of the minors age
doesn’t matter—unless it is statutorily provided.101 And there it wasn’t. So Cox is not a
proper comparison grammatically or in subject matter.
Nor, for that matter, is Vasquez. There, the Court unremarkably held that “SORNA
merely requires that a defendant have knowledge that he was required by law to register
as a sex offender. The government need not prove that, in addition to being required to
register under state law, a defendant must also know that registration is mandated by a
federal statute.”102 Okay. That seems fine, the knowledge has to be of a general sort. That
doesn’t mean, as a grammatical matter, that knowingly doesn’t modify the words that
follow; it’s just what (in that case) the knowing element demands. Thus the case, like Cox,
doesn’t undermine the defense’s position and doesn’t demand a different reading of
§ 2332i than what the plain reading counsels.
100 18 U.S.C. § 2423(a).

101 Morissette v. United States, 342 U.S. 246, 251 n.8 (1952).
102 Vasquez, 611 F.3d at 328.
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v. The Court should appoint an expert under Rule 705 to give an opinion
on how the statute must be interpreted.
While experience teaches that courts aren’t too keen on striking down statutes as
unconstitutional, they are more likely to properly interpret a statute. Here, the question
of statutory interpretation is a dispositive one. Ryan’s guilt or innocence hinges on
whether under § 2332i the taking of life has to be unlawful. Indeed, if the statute reaches
Ryan’s ill-advised “backup plan,” then he’s guilty. But if the statute only reaches the
unlawful taking of life, then he’s innocent. The whole case turns on this.
And this Court deserves better than the government’s and the defense’s clumsy
attempts to explain grammar. Thus, the defense asks that this Court appoint an expert
under Federal Rule of Evidence 705 to diagram the statute and explain how it is supposed
to be read. Now, Rule 705 is rarely invoked, but is appropriate in this circumstance. This
will give the Court, the parties, and the reviewing courts a foundation (an expert’s
imprimatur) to explain how these clauses relate. This will, ultimately, save the Court a
fair amount of time and hand-wringing over the statute, the rules of grammar, and the
canons of construction. Rather than simply burying this request in reply brief’s twilight,
the defense will be filing a motion under Rule 705 with further briefing on the matter.
4. Conclusion
This is a strange case. An eccentric gadfly wants to kill himself and make it look
like he died of cancer. And so he goes on the dark web and tries to get a poison that he
hears will do the trick—death is assured and the corner will be duped into telling the
36
OF WISCONSIN, INC.
world he died of cancer. Reaching that troubling motivation and behavior is something
that the States have been addressing since the Founding. An essential part of the police
power is treating those who would harm themselves. But addressing that behavior is not
among those powers given the federal government and Congress cannot simply reach
into every local poisoning because it has made a treaty targeting international nuclear
terrorism. To do so violates the Tenth Amendment. In addition, Ryan’s “backup plan”
isn’t covered by the statute because self-harm isn’t wrongful. Therefore, the case should
be dismissed and Ryan should be released.
Dated at Madison, Wisconsin this 17th day of June, 2019.
Respectfully submitted,
Jeremy J. Ryan, Defendant
/s/ Joseph A. Bugni

Joseph A. Bugni
/s/ Peter R. Moyers

Peter R. Moyers

OF WISCONSIN, INC.
22 East Mifflin Street, Suite 1000
Madison, Wisconsin 53703
Tel: 608-260-9900
Fax: 608-260-9901
Joseph_Bugni@fd.org
Peter_Moyers@fd.org
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OF WISCONSIN, INC.

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Case: 3:18-cr-00152-jdp Document #: 103 Filed: 06/17/19 Page 1 of 39

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA,

REPLY BRIEF IN FURTHER SUPPORT OF PRETRIAL MOTIONS

1. A few points of clarification ......................................................................................... 4

b. The regulation of radioactive material and the criminalization in § 2332i

d. The Necessary and Proper Clause does not operate independently of

ii. The last-antecedent rule is inapplicable here because there is no

iii. The rule against surplusage is inapplicable here ............................ 33

iv. The government’s analogous cases are of limited, bordering no,

v. The Court should appoint an expert under Rule 705 to give an

this is not a Raich situation.

and Proper Clause (whether it operates by itself independent of an enumerated power in

to pass an otherwise unconstitutional law? Those arguments are interesting as an

either the Treaty Power or the Necessary and Proper Clause.

during oral argument.

A brief conclusion follows in the final section.

1. A few points of clarification

1 See Gov’t Opp. Br., R. 89:9 et seq.

was taken. Simply saying it is so isn’t enough.

science right. Po210 production is capital-intensive: bombarding a stable (non-

Po210, as an alpha-emitter, “cannot penetrate paper or skin, so external exposure doesn’t

pose a health risk.”6

2 See Gov’t Opp. Br., R. 89:9.

agent was willing to oblige, for $500 in Bitcoin.

2. The constitutional issues aren’t controlled by stray, inapposite quotes but

operate by itself as an independent source of constitutional power.9

this Court really do that?

Congress’s Act of 1884, allowing trans-Atlantic railroads running through Indian

came with the power to take private lands:

It is because it is a public highway, and subject to such control, that the

invoke doesn’t flow from the case.

paralyzing. It would render Congress powerless to remedy conditions the creation of

prosecution of the war. So to read the Constitution would be to make it self-defeating.”20

should be read in times of peace.21

is pretty well established.23

has been made over and over again:

criminal jurisdiction. In traditionally sensitive areas, such as legislation affecting

the judicial decision.”24

far short of satisfying the ordinary rule of statutory construction that if

the Federal Government, it must make its intention to do so unmistakably clear in

the language of the statute.”25

o From Gregory v. Ashcroft: “Congressional interference with this decision of

that federal law overrides this balance.26

o From Cleveland v. United States: “We resist the Government’s reading of

§ 1341 as well because it invites us to approve a sweeping expansion of

federal criminal jurisdiction in the absence of a clear statement by Congress.”27

o From Raygor v. Regents of Univ. of Minn.: “When Congress intends to alter

Government, it must make its intention to do so unmistakably clear in the

language of the statute.”28

structure leaves local criminal activity primarily to the States, we have

generally declined to read federal laws as intruding on that responsibility,

28 534 U.S. 533, 543 (2002) (quotation omitted) (emphasis added).

b. The regulation of radioactive material and the criminalization in § 2332i isn’t

An interesting constitutional question surrounds what happens when Congress

couldn’t; radioactive material is a broad category of substances—some occur naturally

33 Murphy v. NCAA, 138 S.Ct. 1461, 1478 (2018).

has not taken over the market.

uranium mining for decades.

35 See Virginia Uranium at *9.

judgment as does Justice Gorsuch: The Commonwealth’s mining ban is not

The government misstates or fails to appreciate the federal-state division of regulatory

Controlled Substances Act at issue in Raich, when it comes to radioactive material

includes byproduct materials, source materials, and “special nuclear materials in