Introduction
Little has been written about congressional treaty power beyond the seminal cases Missouri v. Holland, Reid v. Covert, and of course, Bond v. United States. But even with such a limited pool of information, one rule is clear: congressional power to regulate interstate commerce does not permit prosecutions for domestic crimes under statutes implementing international treaties. But does this limit extend to military prosecutors seeking to convict a soldier of murder involving internationally acquired bacteriological weapons?
This Essay discusses a recent conviction of an Army Staff Sergeant, also a Special Agent of the U.S. Army Criminal Investigation Division, who murdered his wife with a bacteriological weapon derived from pufferfish. The Staff Sergeant was convicted based on the statute executing the Biological Weapons Convention and sentenced to seventy years in prison. The Staff Sergeant appealed on grounds of religious freedom and equal protection because of the government’s use of his religion, Vodou, in its argument. But interestingly, the appeal makes no mention of the seminal treaty power case Bond v. United States, which might preempt the above charge’s applicability entirely.
- Bond v. United States
In 1997, President Clinton ratified the Chemical Warfare Convention. The next year, Congress codified 18 U.S.C. § 229(a). Relevant here, the statute made it unlawful to knowingly:
(1) develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon; or
(2) assist or induce, in any way, any person to violate paragraph (1), or to attempt or conspire to violate paragraph (1).
Carol Anne Bond was a microbiologist who discovered her husband’s affair after her closest friend, Myrlinda Haynes became pregnant with his child. She sought revenge against her friend. Bond stole 10-chloro-10H-phenoxarsine, an arsenic compound, from her workplace; she also ordered potassium dichromate from Amazon. Both chemicals she procured are toxic to humans with lethal potential. But Bond never intended to kill Haynes (or even harm her that much, for that matter). She merely intended for Haynes to touch the chemicals and suffer from “an uncomfortable rash.” Over the course of eight months, Bond spread the chemicals over Haynes’ car, mailbox, and doorknob, almost entirely failing to make contact. But in one instance, Haynes suffered a chemical burn on her thumb after retrieving her mail. After reporting to the U.S. Postal Inspection Service, Bond was caught opening Hayne’s mailbox, stealing an envelope, and stuffing potassium dichromate inside Hayne’s car. Along with the mail-related offenses, Bond was charged under 18 U.S.C. § 229(a) for possessing and using a chemical weapon.
The Supreme Court took issue with the federal government’s use of 18 U.S.C. § 229(a) in prosecuting Bond. The government contended that prosecuting Bond under § 229(a) was necessary and proper to execute the federal government’s power to make treaties. The Supreme Court ultimately rejected that argument, reasoning that “the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon.”
- United States v. Lindor
On September 3rd, 2018, Special Agent Lesly Lindor murdered his wife with tetrodotoxin, a deadly neurotoxin found in pufferfish. Special Agent Lindor acquired the toxin from Haiti where, on top of his use of poison, he enlisted the aid of “mystical forces” to kill her.[1] Three years later, Lindor pleaded guilty to a litany of charges, including a violation of Article 134 of the Uniform Code of Military Justice, specifically that:
“Lindor, U.S. Army, did, between on or about 29 April 2018 and on or about 26 July 2018, at or near Fort Hood, Texas, knowingly attempt[ed] to acquire and possess a biological toxin, to wit: Tetrodotoxin, for use as a weapon, an offense noncapital, in violation of Title 18, United States Code, Section 175(a).”
Lindor was sentenced to seventy years in prison in exchange for his plea, and has since appealed.. The appeal is based on religious freedom and equal protection because of the government’s use of Lindor’s religion, Vodou, in its argument. But interestingly, the appeal makes no mention of the Bond v. United States, despite the procedural similarities.
Like 18 U.S.C. § 229(a) in Bond, the federal government prosecuted Lindor with a statute enabling an international treaty. In 1974, the United States, along with over 100 other countries, signed the Biological Weapons Convention. The statute, 18 U.S.C. § 175(a), tracks the language of 18 U.S.C. § 229(a):
(a) whoever knowingly develops, produces, stockpiles, transfers, acquires, retains, or possesses any biological agent, toxin, or delivery system for use as a weapon, or knowingly assists a foreign state or any organization to do so, or attempts, threatens, or conspires to do the same shall be fined under this title or imprisoned for life or any term of years, or both.
But unlike in Bond, which presented an issue of first impression, defendants have been prosecuted under 18 U.S.C. § 175(a) post-Bond. In United States v. Chamberlain, the defendant possessed over a thousand lethal doses of abrin, a toxin which the Secretary of Health and Human Services described as a toxin with “the potential to pose a severe threat to public health and safety.” Along with the abrin, the defendant made an IED loaded with shrapnel, inferring that the defendant “intended significant harm to a large number of people.” The Chamberlain court distinguished its case from Bond by reasoning that the lover’s quarrel in Bond was locally limited, while the defendant in Chamberlain had “potential to cause mass suffering, including the possession of extremely dangerous substances with the potential to cause severe harm to many people.”
Lindor falls somewhere in between Bond and Chamberlain, poising itself as a potential new chapter in treaty power jurisprudence. Like the defendant in Bond, Special Agent Lindor had one target: his wife. But he didn’t use “kitchen cupboard” supplies that Chief Justice Roberts contended was not within the reach of the federal government’s police power. Rather, like the defendant in Chamberlain, Special Agent Lindor used a biological agent, tetrodotoxin, that more so falls within the “biological weapons” which the Biological Weapons Convention intended to prevent the use of. But again, Lindor only had one target, and no evidence suggests he intended to harm “many people” like the defendant in Chamberlain.
- The Path Forward
The Army Court of Criminal Appeals heard oral argument for Lindor on March 1, 2023. But that hearing was limited to the issues raised in the appeal: (1) whether the government violated the Religious Freedom Restoration Act; (2) whether the government violated the free exercise clause; (3) whether the government violated the equal protection clause; (4) evidentiary issues; and (5) unreasonable post-trial delay. Unable to consider Bond, the Court affirmed Lindor’s conviction on June 14, 2023.
The United States Court of Appeals for the Armed Forces, an Article I court, is the last stop before the U.S. Supreme Court,[2] at which point Bond’s applicability could be reconsidered. That specific issue wasn’t raised on appeal, so generally the Court wouldn’t consider it.[3] But that rule isn’t stringently enforced.[4] As one scholar aptly points out, many seminal cases – including Erie R.R. Co. v. Tompkins,Mapp v. Ohio, Washington v. Davis, and Dickerson v. United States – were decided on issues not raised by the litigants. So it’s conceivable that the Supreme Court would address it in Lindor if it were to grant certiorari.
I posed the issue to Professor Michael C. Dorf, asking: (1) why Mrs. Bond wasn’t prosecuted under 18 U.S.C. § 175(a) instead of 18 U.S.C. § 229(a), given that arsenic and potassium dichromate would qualify as “biological agents” under 18 U.S.C. § 178(1) because they’re naturally occurring (at least as far as Google told me); and (2) how Lindor’s prosecutors were even able to use 18 U.S.C. § 175(a) at all, given the precedent set by Bond? As to my first question, Professor Dorf wisely retorted that while he was no expert in distinguishing biological and chemical weapons, given that biology is based on chemistry (which is, in turn, based on physics), one might think that all biological weapons are necessarily also chemical weapons but not vice-versa.
But the second question was my real critique of Lindor, and it was rooted in the Supreme Court’s deference to military courts.[5] For instance, the 2020 decision Ramos v. Louisiana held that criminal convictions must be made by a unanimous jury, indiscriminate of a federal or state court setting. But that has not been imposed on military courts. Professor Dorf suggested there might have been a successful challenge to the government’s use of 18 U.S.C. § 175(a), but that Lindor’s guilty plea rendered the argument moot. He didn’t believe that a military court would be exempt from an underlying objection to the extension of the treaty power, but he did suggest that congressional power “[t]o make Rules for the Government and Regulation of the land and naval Forces” might distinguish Lindor from Bond. I am skeptical only because the Bond decision was largely dedicated to congressional intent behind ratifying the Chemical Warfare Convention.[6] I am unsure if Congress considered active duty servicemembers committing religiously motivated murder when it ratified the Biological Weapons Convention. In fact, the stated purpose of the statute was to “protect the United States against the threat of biological terrorism.” And in the criminal code, the United States qualifies international terrorism as violent acts occurring mostly outside the territorial jurisdiction of the United States. So the exception to “mostly outside” seemingly aligns more with Chamberlain than Lindor, despite the nonexistence of a domestic terrorism statute.[7]
Conclusion
Lindor poses a discrete but important issue: does Bond’s prohibition on federal government prosecutions based on statutes executing international treaties extend to military prosecutors? But that issue itself raises two more questions: (1) if Bond doesn’t apply here, is it because of the fact-specific distinction, the elasticity of military due process, or Congress’ power to regulate the military? And (2) if Bond does apply here, why didn’t it apply in Chamberlain if the Bond court wasn’t concerned with the number of potential victims?
Despite the egregious nature of Lindor, I am not certain Bond would permit its affirmation. Only time will tell if the Supreme Court’s treaty power jurisprudence gains another chapter. I believe the issue was never raised in Lindor simply because no one thought to do so. And if the Supreme Court were to make an exception to the Party Presentation Rule, this case is ripe for it.
[1] Lindor practiced Vodou (often incorrectly referred to as “voodoo”), described as a syncretism of African religious traditions and Catholicism. See Vodou, Serving the Spirits. At Lindor’s trial, mentions of Vodou involved powders in rituals and certain beliefs that the powders can cause injury or death.
[2]See also 10 U.S.C. § 867a (“Decisions of the United States Court of Appeals for the Armed Forces are subject to review by the Supreme Court by writ of certiorari as provided in section 1259 of title 28”).
[3] (Scalia, J.) (“[t]he premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.”).
[4] See, e.g., Singleton v. Wulff, (“The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases. We announce no general rule.”).
[5] The elasticity of due process in military courts and for servicemembers generally is often called “military due process.” See, e.g.,Seymour W. Wurfel, Military Due Process: What is it?.
[6] Bond v. United States (describing a statute that “makes it a federal offense to poison goldfish” as not a “realistic assessment of congressional intent”) (internal citations omitted).
[7] One district court judge recently described this conundrum as a “donut hole in the statute . . . [allowing] the government [to] obtain search warrants in an investigation of something that is not a crime.” Matter of Search of One Apple iPhone Smartphone. But see 18 U.S.C. 2331 (defining, but not providing a penalty for, domestic terrorism).