United States v. Todd Fries
2015 U.S. App. LEXIS 5072
| 9th Cir. | 2015Background
- Fries was convicted of using a chemical weapon (18 U.S.C. § 229(a)) and making false statements to the FBI (18 U.S.C. § 1001) after he set chlorine-containing devices at a former customer's home, producing a large toxic cloud that required neighborhood evacuation and injured first responders.
- Indictment alleged Fries used homemade chlorine devices at the Levines’ home (Aug. 2, 2009) and impersonated another person in an FBI call to blame a third party (Aug. 4, 2009).
- FBI obtained a search warrant (May 2011) based on a pattern of similar attacks (2008, 2009, and April 28, 2011) and confidential-source information about stockpiling materials; Fries moved to suppress as stale and overbroad.
- At trial, physical evidence (latent prints, IDs, a check), eyewitness/first-responder testimony about the chlorine cloud, and witness testimony from former employees tied Fries to planning and materials; jury convicted Counts One and Two.
- Fries challenged (1) the constitutionality and jurisdictional reach of § 229(a), (2) certain jury instructions, (3) denial of suppression, (4) admission of co-participant statements, (5) rejection of a missing-evidence instruction for the unrecorded FBI call, and (6) a 2-level obstruction enhancement at sentencing.
- Court affirmed convictions and sentence, rejecting Fries’ challenges on all grounds.
Issues
| Issue | Plaintiff's Argument (Fries) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Constitutionality / federal jurisdiction under §229 | §229 exceeds Congress’s authority or is inapplicable to purely local/property-based crimes | §229 is a valid exercise of the Treaty Power/Necessary and Proper Clause and applies here given the chemicals used and circumstances | §229 is constitutional as applied; Fries’ chlorine attack was within federal reach (dangerous, mass-harm potential) (affirmed) |
| Jury instruction on §229(c) jurisdictional element | Jury should be instructed that jurisdiction requires the offense be against property owned/leased/used by the U.S. | §229(c) lists disjunctive jurisdictional bases; government need only prove one statutory alternative | Requested instruction rejected; statute is unambiguous and disjunctive (affirmed) |
| Motion to suppress (stale/overbroad warrant) | Warrant affidavit was stale (events dated back) and overbroad (seized computers not tied to charged offenses) | Affidavit showed a continuing pattern of nearly identical attacks and sources reporting stockpiling; seizure of computers justified for forensic examination | Denial of suppression affirmed: probable cause not stale; scope sufficiently particularized |
| Admission of co-participant statements (Rule 801(d)(2)(E)) | Statements inadmissible absent conspiracy count in indictment | Co-conspirator statements admissible if independent proof of concerted action exists | Admission proper; independent evidence showed concert of action; any error harmless |
| Missing-evidence jury instruction for unrecorded FBI call | Failure to record the call warranted an adverse/missing-evidence instruction | No evidence was lost or destroyed in bad faith; agent merely failed to record and defendant could argue insufficiency | Rejection proper—no bad-faith destruction and no legal basis to require such an instruction; defendant could argue lack of recorded proof |
| Obstruction-of-justice enhancement (U.S.S.G. §3C1.1) | Two-level enhancement impermissibly double-counts because false-statement conviction covers the same conduct | Grouping rules and Guidelines permit the enhancement when it captures obstructive conduct beyond the substantive false-statement count | Enhancement proper: counts were grouped correctly and enhancement addressed additional obstructive conduct (affirmed) |
Key Cases Cited
- Bond v. United States, 134 S. Ct. 2077 (2014) (statute’s scope must be read narrowly where it could intrude on traditional state police powers; acknowledged federal interest in mass-harm chemical offenses)
- Missouri v. Holland, 252 U.S. 416 (1920) (upholding broad treaty-implementing power under the Treaty Clause)
- United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013) (de novo review of statute constitutionality)
- United States v. Sheldon, 755 F.3d 1047 (9th Cir. 2014) (statutory subsections in the disjunctive create independent jurisdictional alternatives)
- United States v. Sivilla, 714 F.3d 1168 (9th Cir. 2013) (standards for remedial instruction or sanctions when government destroys or fails to preserve evidence)
- United States v. Manning, 56 F.3d 1188 (9th Cir. 1995) (co-conspirator statements admissible without an express conspiracy count where independent proof shows a concert of action)