{"id":3992,"date":"2024-03-01T17:15:58","date_gmt":"2024-03-01T17:15:58","guid":{"rendered":"https:\/\/cornellilj.org\/?p=3992"},"modified":"2026-03-25T19:41:05","modified_gmt":"2026-03-25T19:41:05","slug":"the-bounds-of-bond-v-united-states-international-treaties-and-military-prosecution-of-bacteriological-murder-vol-56-3","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/cilj\/2024\/03\/01\/the-bounds-of-bond-v-united-states-international-treaties-and-military-prosecution-of-bacteriological-murder-vol-56-3\/","title":{"rendered":"The Bounds of Bond v. United States: International Treaties and Military Prosecution of Bacteriological Murder, Vol. 56.3"},"content":{"rendered":"\n

Introduction<\/strong><\/p>\n\n\n\n

Little has been written about congressional treaty power beyond the seminal cases Missouri v. Holland<\/em><\/a>, Reid v. Covert<\/em><\/a>, and of course, Bond v. United States<\/em><\/a>. 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<\/a>. But does this limit extend to military prosecutors seeking to convict a soldier of murder involving internationally acquired bacteriological weapons?<\/p>\n\n\n\n

This Essay discusses a recent conviction of an Army Staff Sergeant, also a Special Agent of the U.S. Army Criminal Investigation Division<\/a>, who murdered his wife with a bacteriological weapon derived from pufferfish.<\/a> The Staff Sergeant was convicted based on the statute executing the Biological Weapons Convention<\/a> and sentenced to seventy years in prison<\/a>. The Staff Sergeant appealed on grounds of religious freedom and equal protection because of the government\u2019s use of his religion, Vodou, in its argument<\/a>. But interestingly, the appeal makes no mention of the seminal treaty power case Bond v. United States<\/em><\/a>, which might preempt the above charge\u2019s applicability entirely.<\/p>\n\n\n\n

    \n
  1. Bond v. United States<\/strong><\/em><\/li>\n<\/ol>\n\n\n\n

    In 1997, President Clinton ratified the Chemical Warfare Convention<\/a>. The next year, Congress codified<\/a> 18 U.S.C. \u00a7 229(a). Relevant here, the statute made it unlawful to knowingly<\/a>:<\/p>\n\n\n\n

    (1) develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon; or<\/p>\n\n\n\n

    (2) assist or induce, in any way, any person to violate paragraph (1), or to attempt or conspire to violate paragraph (1).<\/p>\n\n\n\n

    Carol Anne Bond<\/a> was a microbiologist who discovered her husband\u2019s 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<\/a>. 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 \u201can uncomfortable rash<\/a>.\u201d Over the course of eight months, Bond spread the chemicals over Haynes\u2019 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\u2019s mailbox, stealing an envelope, and stuffing potassium dichromate inside Hayne\u2019s car<\/a>. Along with the mail-related offenses, Bond was charged under 18 U.S.C. \u00a7 229(a)<\/a> for possessing and using a chemical weapon.<\/p>\n\n\n\n

    The Supreme Court took issue with the federal government\u2019s use of 18 U.S.C. \u00a7 229(a)<\/a> in prosecuting Bond. The government contended that prosecuting Bond under \u00a7 229(a) was necessary and proper to execute the federal government\u2019s power to make treaties. The Supreme Court ultimately rejected that argument, reasoning that<\/a> \u201cthe 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.\u201d<\/p>\n\n\n\n

      \n
    1. United States v. Lindor<\/strong><\/em><\/li>\n<\/ol>\n\n\n\n

      On September 3rd, 2018, Special Agent Lesly Lindor murdered his wife with tetrodotoxin, a deadly neurotoxin found in pufferfish<\/a>. Special Agent Lindor acquired the toxin from Haiti where, on top of his use of poison, he enlisted the aid of \u201cmystical forces\u201d to kill her.[1]<\/a> Three years later, Lindor pleaded guilty to a litany of charges<\/a>, including a violation of Article 134 of the Uniform Code of Military Justice<\/a>, specifically that<\/a>:<\/p>\n\n\n\n

      \u201cLindor, 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).\u201d<\/p>\n\n\n\n

      Lindor was sentenced to seventy years in prison in exchange for his plea<\/a>, and has since appealed.<\/a>. The appeal is based on religious freedom and equal protection because of the government\u2019s use of Lindor\u2019s religion, Vodou, in its argument<\/a>. But interestingly, the appeal makes no mention of the Bond v. United States<\/em><\/a>, despite the procedural similarities.<\/p>\n\n\n\n

      Like 18 U.S.C. \u00a7 229(a) in Bond<\/em><\/a>, 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<\/a>. The statute, 18 U.S.C. \u00a7 175(a)<\/a>, tracks the language of 18 U.S.C. \u00a7 229(a):<\/p>\n\n\n\n

      (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.<\/p>\n\n\n\n

      But unlike in Bond<\/em>, which presented an issue of first impression, defendants have been prosecuted under 18 U.S.C. \u00a7 175(a) post-Bond<\/em>. In United States v. Chamberlain<\/em><\/a>, 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 \u201cthe potential to pose a severe threat to public health and safety.<\/a>\u201d Along with the abrin, the defendant made an IED loaded with shrapnel, inferring that the defendant \u201cintended significant harm to a large number of people<\/em><\/a>.\u201d The Chamberlain <\/em>court distinguished its case from Bond <\/em>by reasoning that the lover\u2019s quarrel in Bond <\/em>was locally limited, while the defendant in Chamberlain <\/em>had \u201cpotential to cause mass suffering, including the possession of extremely dangerous substances with the potential to cause severe harm to many people<\/em>.<\/a>\u201d<\/p>\n\n\n\n

      Lindor <\/em>falls somewhere in between Bond <\/em>and Chamberlain<\/em>, poising itself as a potential new chapter in treaty power jurisprudence. Like the defendant in Bond<\/em>, Special Agent Lindor had one target: his wife<\/a>. But he didn\u2019t use \u201ckitchen cupboard<\/a>\u201d supplies that Chief Justice Roberts contended was not within the reach of the federal government\u2019s police power. Rather, like the defendant in Chamberlain<\/em>, Special Agent Lindor used a biological agent, tetrodotoxin, that more so falls within the \u201cbiological weapons\u201d 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 \u201cmany people<\/a>\u201d like the defendant in Chamberlain<\/em>.<\/p>\n\n\n\n

        \n
      1. The Path Forward<\/strong><\/li>\n<\/ol>\n\n\n\n

        The Army Court of Criminal Appeals heard oral argument for Lindor <\/em>on March 1, 2023<\/a>. But that hearing was limited to the issues raised in the appeal: (1) whether the government violated the Religious Freedom Restoration Act<\/a>; (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<\/a>. Unable to consider Bond<\/em>, the Court affirmed Lindor\u2019s conviction on June 14, 2023<\/a>.<\/p>\n\n\n\n

        The United States Court of Appeals for the Armed Forces, an Article I court, is the last stop before the U.S. Supreme Court<\/a>,[2]<\/a> at which point Bond<\/em>\u2019s applicability could be reconsidered. That specific issue wasn\u2019t raised on appeal, so generally the Court wouldn\u2019t consider it<\/a>.[3]<\/a> But that rule isn\u2019t stringently enforced.[4]<\/a> As one scholar aptly points out<\/a>, many seminal cases \u2013 including Erie R.R. Co. v. Tompkins<\/em><\/a>,Mapp v. Ohio<\/em><\/a>, Washington v. Davis<\/em><\/a>, and Dickerson v. United States<\/em><\/a> \u2013 were decided on issues not raised by the litigants. So it\u2019s conceivable that the Supreme Court would address it in Lindor <\/em>if it were to grant certiorari.<\/p>\n\n\n\n

        I posed the issue to Professor Michael C. Dorf<\/a>, asking: (1) why Mrs. Bond wasn’t prosecuted under 18 U.S.C. \u00a7 175(a) instead of 18 U.S.C. \u00a7 229(a), given that arsenic and potassium dichromate would qualify as \u201cbiological agents<\/a>\u201d under 18 U.S.C. \u00a7 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. \u00a7 175(a) at all, given the precedent set by Bond<\/em>? 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.<\/p>\n\n\n\n

        But the second question was my real critique of Lindor,<\/em> and it was rooted in the Supreme Court\u2019s deference to military courts.[5]<\/a> For instance, the 2020 decision Ramos v. Louisiana<\/em><\/a> 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<\/a>. Professor Dorf suggested there might have been a successful challenge to the government\u2019s use of 18 U.S.C. \u00a7 175(a)<\/a>, but that Lindor\u2019s guilty plea rendered the argument moot. He didn\u2019t 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 \u201c[t]o make Rules for the Government and Regulation of the land and naval Forces<\/a>\u201d might distinguish Lindor <\/em>from Bond<\/em>. I am skeptical only because the Bond <\/em>decision was largely dedicated to congressional intent behind ratifying the Chemical Warfare Convention<\/a>.[6]<\/a> 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 \u201cprotect the United States against the threat of biological terrorism<\/a>.\u201d And in the criminal code<\/a>, the United States qualifies international terrorism as violent acts occurring mostly outside the territorial jurisdiction of the United States. So the exception to \u201cmostly outside\u201d seemingly aligns more with Chamberlain <\/em>than Lindor<\/em>, despite the nonexistence of a domestic<\/em> terrorism statute<\/a>.[7]<\/a><\/p>\n\n\n\n

        Conclusion<\/strong><\/p>\n\n\n\n

        Lindor <\/em>poses a discrete but important issue: does Bond<\/em>\u2019s 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 <\/em>doesn\u2019t apply here, is it because of the fact-specific distinction, the elasticity of military due process, or Congress\u2019 power to regulate the military? And (2) if Bond <\/em>does apply here, why didn\u2019t it apply in Chamberlain <\/em>if the Bond <\/em>court wasn\u2019t concerned with the number of potential victims?<\/p>\n\n\n\n

        Despite the egregious nature of Lindor<\/em>, I am not certain Bond <\/em>would permit its affirmation. Only time will tell if the Supreme Court\u2019s treaty power jurisprudence gains another chapter. I believe the issue was never raised in Lindor <\/em>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.<\/p>\n\n\n\n

        \n\n\n\n

        [1]<\/a> Lindor practiced Vodou (often incorrectly referred to as \u201cvoodoo\u201d), described as a syncretism of African religious traditions and Catholicism. See <\/em>Vodou, Serving the Spirits<\/em><\/a>. At Lindor\u2019s trial, mentions of Vodou involved powders in rituals and certain beliefs that the powders can cause injury or death<\/a>.<\/p>\n\n\n\n

        [2]<\/a>See also<\/em> 10 U.S.C. \u00a7 867a<\/a> (\u201cDecisions 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\u201d).<\/p>\n\n\n\n

        [3]<\/a> (Scalia, J.) (\u201c[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.\u201d).<\/p>\n\n\n\n

        [4]<\/a> See, e.g.<\/em>, Singleton v. Wulff<\/a>, (\u201cThe 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.\u201d).<\/p>\n\n\n\n

        [5]<\/a> The elasticity of due process in military courts and for servicemembers generally is often called \u201cmilitary due process.\u201d See, e.g.<\/em>,Seymour W. Wurfel, Military Due Process: What is it?<\/em><\/a>.<\/p>\n\n\n\n

        [6]<\/a> Bond v. United States<\/a> (describing a statute that \u201cmakes it a federal offense to poison goldfish\u201d as not a \u201crealistic assessment of congressional intent\u201d) (internal citations omitted).<\/p>\n\n\n\n

        [7]<\/a> One district court judge recently described this conundrum as a \u201cdonut hole in the statute . . . [allowing] the government [to] obtain search warrants in an investigation of something that is not a crime.\u201d Matter of Search of One Apple iPhone Smartphone<\/a>. But see <\/em>18 U.S.C. 2331<\/a> (defining, but not providing a penalty for, domestic terrorism).<\/p>\n","protected":false},"excerpt":{"rendered":"

        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…<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[13,15,39,21,23,462],"tags":[287,335],"class_list":["post-3992","post","type-post","status-publish","format-standard","hentry","category-articles-2","category-current-online-issue","category-cilj","category-online","category-recent-news","category-volume-56-issue-3","tag-military-law","tag-religious-freedom"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/posts\/3992","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/comments?post=3992"}],"version-history":[{"count":1,"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/posts\/3992\/revisions"}],"predecessor-version":[{"id":4510,"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/posts\/3992\/revisions\/4510"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/media?parent=3992"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/categories?post=3992"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/tags?post=3992"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}