Case Information
*1 Before: MERRITT, DAUGHTREY, and GRIFFIN, Circuit Judges.
_________________
COUNSEL ARGUED: Amy R. Mohan, SHERRARD & ROE, PLC, Nashville, Tennessee, for Appellant. Aditya Bamzai, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Amy R. Mohan, Ryan T. Holt, SHERRARD & ROE, PLC, Nashville, Tennessee, for Appellant. Aditya Bamzai, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Matthew W. Shepherd, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.
_________________
OPINION
_________________
GRIFFIN, Circuit Judge. Fifteen years ago, defendant Jeff Levenderis produced ricin in his kitchen and stored it in his freezer. Levenderis intended to use the ricin for various purposes,
1
including an elaborate suicide plot in which he would light his house on fire and hang bottles of
ricin in the doorway to prevent firefighters from entering his home. The federal government
prosecuted Levenderis for possessing a biological toxin for use as a weapon in violation of
18 U.S.C. § 175(a). On appeal, Levenderis argues that, in light of the Supreme Court’s recent
decision in
Bond v. United States
,
I.
Sometime around 2000 when he was approximately 44 years old, Jeff Levenderis obtained a handful of castor beans. Using a “recipe” he found on the Internet, he ground the beans into a fine powder, which he further distilled in an acetone solution. The end result was a “high-grade” form of ricin: a deadly toxin capable of killing every cell it comes in contact with. Levenderis divided the finished product into three pill bottles, which he stored in a coffee can in his freezer. The coffee can remained in defendant’s freezer until an FBI HAZMAT team removed it in January 2011.
The FBI discovered Levenderis’ ricin activities through a series of unfortunate, health- related events in his life. In the fall of 2010, he fell ill, was hospitalized, and was later admitted to a long-term nursing facility. While Levenderis was away, an acquaintance, Robert Coffman, agreed to help him with the upkeep of his house. After roughly two months, Levenderis asked Coffman to check whether a coffee can was still in the freezer and, if so, not to disturb it. Coffman reported back that it was, and defendant eventually disclosed to him that the can contained ricin. After discussing various ways to dispose of it, the two decided to contact the fire department. On January 24, 2011, Coffman made inquiries with the local fire department. Within thirty minutes, Coffman received a phone call from the FBI.
The same day, the FBI visited Levenderis at his nursing home. Three agents arrived at the nursing home and saw defendant standing in the hallway near the door to his room. They identified themselves as FBI agents and asked if they could speak with him. All four proceeded into his room, where defendant laid down on his bed, and the agents sat in chairs in various parts of the room. When asked whether there was a dangerous substance in his freezer, defendant said that he had made ant poison using a recipe he found on the Internet. The agents asked whether he ever told Coffman it was ricin; defendant said that if he did, he was only joking. After being advised that lying to the FBI is a federal offense, defendant still maintained that the substance was ant poison.
Agents interviewed defendant again on January 27, 2011. Before agents could ask defendant any questions, he reiterated that the substance was ant poison, not ricin. He then asked to make a few phone calls, which the agents allowed him to do. Following the phone call, defendant indicated that he wanted to have an attorney present. The agents ended the interview and left.
Later that afternoon, defendant visited the FBI field office with his attorney, Hank Meyer, and Coffman “to clear up a few things about [his] previous interviews.” During the interview, defendant admitted that the substance “was actually a high-grade, weaponized form of ricin . . . .” Defendant stated that he thought about using the ricin as part of an elaborate suicide plan in which he would light his house on fire, hang bottles of ricin in each doorway, and put signs up indicating the bottles contained ricin in order to prevent firefighters from entering the home and putting out the fire. He also mentioned using it as a way to threaten his cousin, with whom he was feuding, from coming to his house. In addition, the FBI learned that defendant also intended to poison his step-father, with whom he had disputes over inheritance and financial matters, by putting ricin in a bowl of soup.
Meanwhile, an FBI HAZMAT team extracted the coffee can from the freezer and, after conducting various tests, determined that it contained 35.9 grams of ricin, enough to kill over 250 people.
A federal grand jury indicted defendant on four counts: (1) knowingly developing, producing, stockpiling, retaining, and possessing a biological toxin and delivery system (ricin) for use as a weapon, 18 U.S.C. § 175(a); (2) knowingly possessing a biological toxin and delivery system (ricin) that was not in its naturally occurring form and was of a type and quantity that, under the circumstances, was not reasonably justified by a peaceful purpose, 18 U.S.C. § 175(b); and (3) and (4) willfully and knowingly making a materially false, fictitious, and fraudulent statement to the FBI during the January 24 and 27, 2011, interviews that the substance found was ant poison, not ricin, 18 U.S.C. § 1001(a)(2).
Before trial, defendant filed a motion to suppress his statements to FBI agents. He argued that the interviews constituted custodial interrogations that were not preceded by Miranda [1] warnings. Following an evidentiary hearing at which two of the interviewing agents testified, the magistrate judge recommended the motion be denied because defendant was not “in custody” for purposes of Miranda . The district court adopted the recommendation over defendant’s objections, ruling that, under the totality of the circumstances, a reasonable person would have felt free to terminate the interviews.
Defendant also filed a pre-trial motion to exclude unreliable expert testimony regarding
the tests used to determine whether the substance recovered was ricin. Defendant argued that the
three tests conducted by the government’s experts—the ELISA test, the CFT assay, and the
MALDI-TOF mass spectrometric analysis—were unreliable and, therefore, the expert testimony
should be excluded under Federal Rule of Evidence 702 and
Daubert v. Merrell Dow
Pharmaceuticals, Inc.
,
The case proceeded to trial and the jury found defendant Levenderis guilty on all four counts. Before the verdict, however, defendant filed a motion for a judgment of acquittal based on the Supreme Court’s decision in Bond v. United States , 134 S. Ct. 2077 (2014), which had been released two days earlier. The court denied the motion, but invited post-trial briefing on the applicability of . Thereafter, the court ruled that Bond did not require it to vacate defendant’s conviction under § 175(a) because, unlike in , the substance defendant possessed was inherently dangerous and had the potential to harm hundreds of people. Thus, it held that Levenderis was properly subject to federal prosecution on that count. [2]
The court subsequently sentenced defendant to concurrent terms of six years in prison for the biological weapons conviction and five years in prison for each false-statement conviction. Defendant timely appealed, raising three issues: (1) whether the Supreme Court’s decision in requires reversal of his biological weapons conviction; (2) whether the district court erred in denying his motion to suppress; and (3) whether defendant’s trial counsel provided ineffective assistance by withdrawing his Daubert challenge to the government’s scientific testing and expert witnesses. We address each in turn.
II.
A.
In his first claim on appeal, defendant challenges his conviction under 18 U.S.C. § 175(a)
for possessing a biological toxin for use as a weapon, arguing that the federal statute does not
apply to his allegedly “purely local” conduct. The district court treated this argument as a
motion to dismiss the indictment under Federal Rule of Criminal Procedure 12(b)(3). Although
the standard for reviewing such motions is “somewhat unclear,” we “generally undertake
de
novo
review” of “[a] district court’s legal conclusions in the motion to dismiss context.”
United
States v. Grenier
,
As with any challenge to the applicability of a statute, we begin with the statutory
language.
See United States v. Boucha
,
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.
18 U.S.C. § 175(a). Subsection 175(c), in turn, defines “for use as a weapon” as:
[T]he development, production, transfer, acquisition, retention, or possession of any biological agent, toxin, or delivery system for other than prophylactic, protective, bona fide research, or other peaceful purposes.
18 U.S.C. § 175(c). Finally, 18 U.S.C. § 178 defines “toxin” as:
[T]he toxic material or product of plants, animals, microorganisms (including, but not limited to, bacteria, viruses, fungi, rickettsiae or protozoa), or infectious substances, or a recombinant or synthesized molecule, whatever their origin and method of production, and includes--
(A) any poisonous substance or biological product that may be engineered as a result of biotechnology produced by a living organism; or (B) any poisonous isomer or biological product, homolog, or derivative of such a substance[.]
18 U.S.C. § 178(2). Defendant does not dispute that he produced and possessed ricin, a deadly biological toxin; nor does he dispute that he possessed it for a purpose other than prophylactic, protective, bona fide research, or other peaceful purposes. As a result, he effectively concedes that his conduct falls within the scope of the plain language of § 175(a).
Typically, that would foreclose any argument that the statute does not reach a defendant’s
conduct.
See Boucha
,
Bond v. United States
In , the defendant embarked on a course of revenge after she learned that her husband had fathered a child with her closest friend. . at 2085. Bond obtained a quantity of 10-chloro-10H-phenoxarsine from her employer (she happened to be a microbiologist) and a vial of potassium dichromate from Amazon.com and applied the chemicals to the friend’s car door, mailbox, and door knob. Although most attempts were unsuccessful at causing harm, on one occasion, the friend suffered a minor chemical burn on her thumb. Id . After local prosecutors declined to pursue charges, the U.S. Attorney decided to prosecute, charging her with two counts of possessing and using a chemical weapon in violation of 18 U.S.C. § 229(a). Id . Bond moved to dismiss the charges on the basis that § 229 exceeded Congress’s enumerated powers and violated the Tenth Amendment. Id . at 2086.
In its
Bond
decision, the Supreme Court avoided addressing the constitutional issue,
holding instead that, as a matter of statutory interpretation, § 229(a) did not cover the defendant’s
“unremarkable local offense.”
Id
. at 2083. At the outset, the Court rejected the government’s
argument that the plain language of the statute clearly encompassed her conduct.
Id.
at 2088.
The problem with its interpretation, the Court stated, was that “it would ‘dramatically intrude
upon traditional state criminal jurisdiction,’ and we avoid reading statutes to have such reach in
the absence of a clear indication that they do.”
Id
. (alterations omitted) (quoting
United States v.
Bass
,
The Court observed that Congress was unclear whether it intended § 229 to cover “purely local” crimes. Id. at 2090. “[T]he ambiguity,” as the Court put it, of § 229 “derive[d] from the improbably broad reach” of the statutory term being defined, the deeply serious consequences of such a boundless reading, and the lack of any apparent need for such a reading in light of the context in which the statute was enacted. . Having established § 229’s ambiguity, and guided by principles of federalism, the Court reasoned that “[t]he natural meaning of ‘chemical weapon’”—one that “an educated user of English” would understand—“takes account of both the particular chemicals that the defendant used and the circumstances in which she used them.” Id.
In Bond’s case, the Supreme Court held that the chemicals she used, and the manner in which she used them, were not the sort that an ordinary person would associate with instruments of chemical warfare. Id. First, the chemicals Bond used “b[ore] little resemblance to the deadly toxins that are of particular danger to the objectives of the [Chemical Weapons] Convention.” Id . at 2090 (quotation marks omitted). Second, the defendant did not use the chemicals as a “weapon” as that term is ordinarily understood, i.e., as “an instrument of attack or defense in combat, as a gun, missile, or sword[.]” Id . (alteration omitted) (quoting American Heritage Dictionary 2022 (3d ed. 1992)). Using something as a “weapon,” the Court said, connotes “combat,” and no speaker in natural parlance would say Bond’s conduct was “combat.” Id . (citing Webster’s Third New International Dictionary 2589 (2002) and American Heritage Dictionary 2022 (3d ed. 1992)).
Notably, the
Bond
Court was careful to define the contours of its holding. The Court
opined that the chemicals Bond used could have been a “chemical weapon” if used differently,
for example, to poison the city’s water supply.
Id
. at 2091. It also recognized that the federal
government has a substantial interest in enforcing criminal laws against assassination, terrorism,
and acts with the potential to cause mass suffering.
Id
. at 2092. Nothing in was intended
to “disrupt the Government’s authority to prosecute such offenses.”
Id
. The Court cited the
handful of cases prosecuted under § 229, noting that most “involved either terrorist plots or the
possession of extremely dangerous substances with the potential to cause severe harm to many
people.” . (citing
United States v. Ghane
,
Application of We agree with defendant Levenderis that the broad parallels between this case and Bond are clear: both § 229 and § 175 originate in the Geneva Protocol of 1925 and both are treaty- implementing statutes. Compare Chemical Weapons Convention Implementation Act, Pub. L. No. 105-277 div I, 112 Stat. 2681, 2681–856 (1998), with Biological Weapons Anti-Terrorism Act of 1989, Pub. L. No. 101-298, 104 Stat. 201 (1990). In addition, both § 229 and § 175 use expansive statutory language that, although not identically worded, outlaws any possession or use of a chemical or biological agent (which terms are expansively defined) that are not for a specific “peaceful purpose.” Compare 18 U.S.C. § 229F with 18 U.S.C. § 175(c). As a result, given the similarities between § 175 and § 229, we follow the Supreme Court’s instruction and interpret § 175 in light of federalism principles, just as it did with § 229 in Bond .
However, whether
Bond
requires reversal of defendant’s conviction is a separate
question. To answer that, we must closely examine the Court’s statutory analysis after it decided
to apply the federalism canon of construction.
See Bond
,
First, the type of substance defendant used is significantly more dangerous than the
chemicals used in
Bond
. “Ricin . . . is extremely deadly. There is no known antidote for ricin
poisoning.”
United States v. Baker
,
The manner in which defendant intended to use the ricin is the more difficult question. In concluding that the defendant’s use of chemicals did not fall within the scope of § 229, the Bond Court juxtaposed Bond’s “common law assault” with cases involving “terrorist plots or the possession of extremely dangerous substances with the potential to cause severe harm to many people.” . at 2087, 2092. Thus, Bond essentially identified two poles, leaving lower courts to determine where a particular defendant’s conduct falls along the spectrum of “common law assault” to “terrorist plots [and] the possession of extremely dangerous substances with the potential for severe mass harm.”
In this case, the government presented evidence that, among other things, Levenderis intended to use the ricin as part of an elaborate suicide plot in which he would light his house on fire and hang bottles of ricin from the entrances to his home to prevent firefighters from entering to put out the fire. In identifying where along the Bond spectrum this conduct falls, we conclude it is more akin to facts of the cases the Court indicated were actionable than it is to the facts in the opinion itself. One of the cases cited, Ghane , 673 F.3d 771, is particularly analogous.
In
Ghane
, the defendant was hospitalized for suicidal ideations and told physicians that if
he were to commit suicide he would use cyanide, which he had in his apartment. 673 F.3d at
775. He also stated that “he had thoughts of harming others affiliated with the Corps of
Engineers and that he had access to chemicals.”
Id
. at 776. However, he did not identify
specific individuals.
Id
. Law enforcement searched his apartment and found 177 grams of
cyanide, enough to kill 450 people. . at 776 n.3. The defendant was charged under § 229(a),
and the Eighth Circuit affirmed his convictions on appeal. As noted above, the Supreme Court
cited Ghane’s prosecution as permissible under its holding in . ,
Like the defendant in Ghane , Levenderis intended to use the prohibited substance as part of a suicide plot and against an unknown number of government workers (firefighters and first- responders). Also like Ghane , the amount and toxicity of the substance was enough to kill hundreds of people. Although there was no evidence that Ghane had plans to use it against that many people, the potential for that magnitude of harm was present. In this case, defendant possessed enough ricin to be lethal to hundreds of people exposed to the substance through inhalation. Defendant counters that the ricin he produced was too crude to be lethal when inhaled. Insofar as defendant claims that he did not possess enough ricin to be used as a weapon capable of causing mass harm, the evidence does not support his claim. The government’s expert witness, Dr. Robert Bull, testified that the amount of ricin was enough to kill at least 257 people if inhaled. Defendant argues that, on cross-examination, Dr. Bull conceded that “we don’t know if this substance would be lethal if inhaled . . . .” However, that line of questioning related to the size of the ricin particles and whether they could travel to the deepest part of the lungs; Dr. Bull later reaffirmed that, regardless of particular size, ricin kills any cells it comes into contact with. It is the natural and probable consequence of hanging ricin in the entrances of a burning house that first-responders and firefighters—whose job it is to enter burning structures to save lives and nearby properties—would be exposed to the lethal toxin. Moreover, given the amount and toxicity of the substance, defendant’s intended use of ricin had the potential to cause harm to anyone in the vicinity, including local residents.
In sum, defendant produced a substance that is lethal in very small amounts and that has no known antidote. He possessed enough ricin to kill over 250 people. The lethality of ricin, combined with the fact that he intended to use it in a way that could have exposed an unknown number of firefighters, first-responders, and residents to the substance, demonstrates that defendant’s conduct had the potential to cause mass harm. It was this potential for harm to many people that distinguished Bond’s conduct from cases like Ghane , which the Bond Court recognized were still subject to prosecution under the statute. . at 2092. And it is this same potential for mass harm that distinguishes defendant Levenderis’ conduct from the “purely local” crime at issue in . After applying Bond ’s framework, we hold that the confluence of both the inherent danger of ricin and the harmful, albeit bizarre, manner in which he intended to use it brings Levenderis’ conduct within the ordinary and common sense meaning of “biological weapon.” Therefore, does not require reversal of defendant’s conviction under § 175(a).
B.
In his second claim on appeal, Levenderis asserts that the district court erred in denying
his motion to suppress the statements he gave to the FBI agents. Defendant argues that, contrary
to the district court’s conclusion, he
was
“in custody” during the January 24 and 27, 2011,
interviews for purposes of
Miranda
. “When reviewing the district court’s decision regarding a
motion to suppress, we review its factual findings for clear error and its legal conclusions de
novo.”
United States v. Evans
, 581 F.3d 333, 340 (6th Cir. 2009). The issue whether a
defendant was “in custody” is a mixed question of law and fact that is reviewed de novo.
United
States v. Salvo
,
Law enforcement officials are required to advise a person of their “
Miranda
rights”
before engaging in “custodial interrogation.”
See Miranda
, 384 U.S. 436. This requirement
applies “only where there has been such a restriction on a person’s freedom as to render him ‘in
custody.’”
Oregon v. Mathiason
,
First, the location of the interview weighs against a finding of custody because, although
it was not his permanent home, the nursing home had been defendant’s residence for several
months by the time the FBI interviewed him. Thus, the interview did not take place in an
unfamiliar setting like the stationhouse or FBI field office.
See Beckwith v. United States
,
425 U.S. 341, 346 n.7 (1976) (observing that a central concern for the
Miranda
Court was
“isolating the suspect in unfamiliar surroundings ‘for no purpose other than to subjugate the
individual to the will of his examiner’”) (quoting
Miranda
,
Second, the length of questioning during the first interview was relatively brief,
approximately thirty minutes, and the second interview lasted only a few minutes. Defendant
argues that, although brief in duration, the purpose of the FBI’s questioning was because he was
a suspect. However, the Supreme Court has “explicitly recognized that
Miranda
warnings are
not required ‘simply . . . because the questioned person is one whom the police suspect.’”
California v. Beheler
,
Third, there were no restraints on defendant’s freedom of movement. Defendant stresses
the fact that the room was small and the agents sat closely around his bed while they questioned
him. However, there is also no evidence agents prevented him from getting up from his bed.
The FBI agents testified that the questioning was not forceful, and they did not brandish their
weapons as a show of force.
See United States v. Mahan
, 190 F.3d 416, 422 (6th Cir. 1999)
(noting that the interviewing officer “at no time made any show of force or brandished a firearm
or handcuffs, or any other equipment ordinarily associated with formal arrest or custody”).
Moreover, although defendant claims in his brief on appeal that he was “physically restricted” in
the nursing home, there is no evidence that defendant was incapacitated. The agents found
defendant walking just outside his room, introduced themselves as FBI agents, and asked if they
could speak with defendant. He said “yes” and walked under his own power into his room where
agents interviewed him. Defendant was also able to place and receive phone calls during the
interviews, something a reasonable person in police custody would not feel free to do.
See United States v. LeBrun
, 363 F.3d 715, 722 (8th Cir. 2004) (en banc) (“While the mere
possession of a cellular phone without more will not transform a custodial interrogation into a
noncustodial one, it is relevant to the question of whether the interview was coercive and
whether a reasonable person in the same circumstances would feel restrained.”);
United States v.
Unser
,
Fourth and finally, weighing in defendant’s favor is the fact that agents did not tell him he was free to stop the interview or ask them to leave. However, this is only one of several factors to consider, and it is not dispositive. See Panak , 552 F.3d at 467 (“[T]he existence of such advice is one factor among many and we have never held that it is a necessary condition (as opposed to a frequently sufficient condition) before officers may question an individual in a non-custodial setting.”) (internal citation omitted). In light of the surrounding circumstances, including the familiar setting, defendant’s ability to make and receive calls, the fact that agents never told defendant he was not free to leave, and the absence of any other indicia of coerciveness, this factor alone does not transform an otherwise non-custodial setting into a custodial one.
Because the totality of the circumstances demonstrates that a reasonable person would understand he or she could have asked the agents to leave at any time, and because defendant was not “deprived of his freedom of action in any significant way[,]” Mathiason , 429 U.S. at 494, he was not in custody for Miranda purposes. We therefore affirm the district court’s denial of defendant’s motion to suppress.
C.
Finally, defendant argues that his trial counsel provided ineffective assistance by
withdrawing his
Daubert
challenge to the government’s expert witness and by failing to
challenge the reliability of the fourth test used to determine that the substance he possessed was
ricin. “Ineffective assistance of counsel claims are mixed questions of law and fact, which
appellate courts review de novo.”
United States v. Doyle
,
“As a general rule, a defendant may not raise ineffective assistance of counsel claims for the first time on direct appeal, since there has not been an opportunity to develop and include in the record evidence bearing on the merits of the allegations.” United States v. Wunder , 919 F.2d 34, 37 (6th Cir. 1990). We may grant an exception to this general rule where the parties have adequately developed the record so as to enable us to reach the merits of the claim. .
This is no occasion to deviate from our general rule. First, the record is silent regarding
trial counsel’s decision not to challenge the fourth test conducted by the government. Second,
with respect to counsel’s decision to partially withdraw his initial
Daubert
challenge, the record
indicates that on the second day of the
Daubert
hearing counsel explained to the court that his
challenge to the tests went to weight, rather than admissibility. The record also reveals that
defense counsel resurrected his
Daubert
challenge to the first two tests during trial. However,
other than counsel’s brief comment on the record about his objection going to weight, not
admissibility, the record is undeveloped with respect to counsel’s initial decision to withdraw his
Daubert
challenge to the first two tests. We are not persuaded that this small window into
defense counsel’s thought process is sufficient to resolve this issue, especially in light of his
subsequent decision to resurrect the
Daubert
challenge.
See United States v. Williams
, 753 F.3d
626, 637 (6th Cir. 2014) (“We . . . have ‘no way of knowing whether [this] seemingly unusual or
misguided action by counsel had a sound strategic motive or was taken because the counsel’s
alternatives were even worse.’”) (quoting
Massaro v. United States
,
III.
For the foregoing reasons, we affirm defendant’s convictions.
Notes
[1]
Miranda v. Arizona
,
[2] In the same order, the district court also ruled that 18 U.S.C. § 175(b) was a lesser-included offense of 18 U.S.C. § 175(a), and therefore vacated defendant’s conviction under count two as a violation of the Double Jeopardy Clause. The government has not challenged that ruling on appeal.
[3]
We disagree with defendant that our recent decision in
United States v. Toviave
,