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 Pennsylvania Criminal 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 aparrish@kslaw.com aconrad@kslaw.com Paul D. Clement Counsel of Record Conor B. Dugan BANCROFT PLLC 1919 M Street, NW, Suite 470 Washington, DC 20036 Telephone: (202) 234-0090 Facsimile: (202) 234-2806 pclement@bancroftpllc.com cdugan@bancroftpllc.com Robert E. Goldman ROBERT E. GOLDMAN LLC P. O. Box 239 Fountainville, PA 18923 Telephone: (215) 348-2605 Facsimile: (215) 348-8046 reg@bobgoldmanlaw.com

Dated: October 14, 2011

TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii INTRODUCTION AND SUMMARY OF ARGUMENT ........................................ 1 ARGUMENT .............................................................................................................3 I. Interpreting The Chemical Weapons Statute As Applying To Ms. Bonds Conduct Is Neither Necessary Nor A Proper Means To Carry Out The Federal Governments Treaty Obligations. ............................. 3 A. B. C. II. The Governments Supplemental Brief Does Not Address The Central Disputed Issues In This Case. ........................................... 4 This Case Is Not Controlled By Missouri v. Holland. .......................... 8 The Chemical Weapons Statute, As Applied To Bond, Raises Constitutional Concerns Of The First Order. ..........................18

Interpreting The Chemical Weapons Statute As Applying To Ms. Bonds Conduct Is Not Justified Under The Commerce Clause. .................. 22 A. B. The Governments Previously Disavowed Commerce Clause Argument Is Waived And Forfeited. ...................................................23 The Governments Previously Disavowed Commerce Clause Argument Is Meritless. ........................................................................25

CONCLUSION ........................................................................................................30 CERTIFICATE OF LENGTH, FORMAT, AND ADMISSION CERTIFICATE OF SERVICE

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 at http://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 at http://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 at http://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 at http://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

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 of Missouri 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 1

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, Holland was 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 of Holland. 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/

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. Bonds Conduct 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

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 The Central 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 this Court. 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. 4

a proper subject[] of negotiations between our government and other nations. U.S. Supp. Br. 42 (quoting Asakura 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

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 PineSol 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 at http://articles.baltimoresun. com/2011-10-08/news/bs-md-co-bleach-assault-20111008_1_hazardous-materialspine-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

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).

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. Holland as 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

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, nonmigratory 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

Amendment is fundamentally wrong and unsupported by the actual decision. See Bond Supp. Br. 2223. Congress can no more eliminate judicial review or confer a legislative veto pursuant to a treaty than it can interfere with the equally important structural principles of federalism. There is, of course, as this Court recognized, a healthy debate over the scope and correctness of Holland. See United States v. Bond, 581 F.3d 128, 135 (3d Cir. 2009); see also Brief for The CATO Institute, et al., United States v. Bond, No. 082677 (3rd Cir. 2011). But it is noteworthy that the governments simplistic reading of Holland seems out of step not only with the text of the opinion and scholarly commentary, but the position of the Solicitor General in Golan v. Holder. That case involved the question whether Congresss decision to provide copyright protection for certain works that had fallen into the public domain in order to bring the United States into compliance with certain international treaties was within Congresss enumerated powers. It is telling that despite arguments by amici that the statute was supported by the treaty power and Congresss authority under the Necessary and Proper Clause, see Brief for Intl Coalition for Copyright Prot., at 13, Golan v. Holder, No. 10-545 (2011), the Solicitor General in his brief chose to rely solely on the Copyright Clause. See Brief for the United States, Golan v. Holder, No. 10-545 (2011). Even more telling was his answer to Justice Scalia

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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. Holland should 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 addressed facial 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. 11

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 of Holland 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 in Lue, 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 that Lue cites, the article explains that, although in Holland the 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, 15

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 treatyimplementing 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 treatyimplementing 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. Holland is 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

17

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, Raises Constitutional 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 in Raich, and Lopez and Morrison would have been decided differently. See Gonzales v. Raich, 545 U.S. 1 (2005); United States v. Lopez, 514 U.S. 549, 18

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 (quoting New 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 also Jones, 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. Bonds Conduct 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 22

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 Clause Argument 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 not enacted 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 23

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 applied to 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 on In 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 Clause Argument 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. 091277 (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? 25

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, /s/ Paul D. Clement Paul D. Clement Counsel of Record Conor B. Dugan BANCROFT PLLC 1919 M Street, NW, Suite 470 Washington, DC 20036 Telephone: (202) 234-0090 Facsimile: (202) 234-2806 pclement@bancroftpllc.com cdugan@bancroftpllc.com Robert E. Goldman ROBERT E. GOLDMAN LLC P. O. Box 239 Fountainville, PA 18923 Telephone: (215) 348-2605 Facsimile: (215) 348-8046 reg@bobgoldmanlaw.com Counsel for Defendant-Appellant DATED: October 14, 2011

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 aparrish@kslaw.com aconrad@kslaw.com

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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 1919 M Street, NW, Suite 470 Washington, DC 20036 Telephone: (202) 234-0090 Facsimile: (202) 234-2806 pclement@bancroftpllc.com Counsel for Defendant-Appellant

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 paul.shapiro@usdoj.gov on October 14, 2011.

This 14th day of October, 2011.

/s/Paul D. Clement Paul D. Clement Counsel of Record BANCROFT PLLC 1919 M Street, NW, Suite 470 Washington, DC 20036 Telephone: (202) 234-0090 Facsimile: (202) 234-2806 pclement@bancroftpllc.com