Defendant Carol Anne Bond, a trained microbiologist, attempted, on at least 24 different occasions, to poison a former friend with toxic chemicals stolen from her employer after Bond learned that her friend had gotten pregnant and that Bond's husband was the baby's father. Bond was charged with two counts of possessing and using a chemical weapon, in violation of 18 U.S.C. § 229(a)(1), and two counts of mail theft, in violation of 18 U.S.C. § 1708. Bond moved to suppress certain evidence and to dismiss the two chemical weapons charges under the Tenth Amendment on federalism and fair notice grounds. Following the district court's denial of her motions, Bond pled guilty to all the charges, reserving her right to appeal.
(1) Federalism Challenge
Section 229 was enacted in response to the multi-national Chemical Weapons Convention of 1993. It prohibits individuals from, among other things, acquiring, owning, possessing or using any chemical weapon. Section 229 neither has a requisite federal interest element, nor states any basis for its enactment beyond the Chemical Weapons Convention. On appeal, Bond asserted that 18 U.S.C. § 229 violated constitutional principles of federalism because it was not based on a valid exercise of congressional authority, it did not require proof of a federal interest, it was vague and overbroad, and it failed to provide fair notice of the conduct covered by its terms.
The Third Circuit, in United States v. Bond, No. 08-2677, declined to reach the merits of Bond's federalism challenge to Section 229 because it concluded that private parties lack standing to claim that the federal Government is impinging on state sovereignty in violation of the Tenth Amendment, absent the involvement of a state or its officers as a party or parties. The Court also rejected Bond's vagueness claim, finding that, while the terms of Section 229 were certainly broad, a person of reasonable intelligence would know that Bond's conduct violated the statute and that the statute cast a wide net for obvious safety reasons and did not criminalize protected activities outside the permissible bounds of Congressional regulation.
(2) Appropriateness of "Special Skill" Sentence Enhancement
Bond also challenged a two-level sentence enhancement for use of a special skill. The Third Circuit affirmed the district court's application of the enhancement, finding that Bond's advanced degree in microbiology, her training in the development and application of biocides, and her position at a chemical manufacturing company, where she could research and steal chemicals unavailable to the public, all supported the enhancement. Bond's background and training facilitated her handling and deployment of the chemicals in a fashion thought to be most lethal and influenced her decision to use toxic chemicals as her weapon of revenge. Accordingly, the Third Circuit affirmed application of the special skill enhancement.