In Dismissing Ricin Charge Against White Supremacist, Judge Throws Enforcement of Bioterrorism Law into Chaos

As pointed out first by Nick Watson in the Gainesville (Georgia) Times and then fleshed out further by Chris Joyner in the Atlanta Journal-Constitution, US District Judge Richard Story on September 21 dismissed a charge of possession of the deadly poison ricin against William Christopher Gibbs. Gibbs had been identified after his arrest by the Southern Poverty Law Center’s Hatewatch as a member of the bizarre Georgia Church of Creativity:

Gibbs claims membership in the “Georgia Church of Creativity,” a white supremacy sect that professes “race is our religion,” that the “white race is nature’s finest,” and that “racial loyalty is the greatest of all honors, and racial treason is the worst of all crimes.”

In his indictment, Gibbs was charged by a grand jury:

In his order directing that the charge be dismissed, Judge Story frames his decision as being due to a mere “clerical error” by the government in drawing up the underlying law and fleshing out the details in subsequent publication of rules. As Joyner described it:

A north Georgia white supremacist arrested last year for alleged possession of the deadly toxin ricin is no longer facing federal charges after a judge dismissed the case — on a technicality that exposes a regulatory failure.

In an order signed Sept. 21, U.S. District Court Judge Richard Story agreed with the man’s legal team that changes to federal law in 2004 and regulatory edits in 2005 inexplicably excluded ricin from the criminal charge of possession of illegal biological toxins known as “select agents.”

The huge problem here is that ricin is not the only agent that now, due to this error, falls outside the list of those proscribed from possession. Congress delegates the development and maintenance of the list of “select agents” to which this law applies to the Department of Health and Human Service for those agents that are human pathogens or toxins and to USDA for those agents that affect livestock or crops. The law also recognizes that some agents on these two lists will overlap, posing threats both to human and agricultural targets.

As Story details in his order, Congress revised the underlying law in late 2004. The list of select agents at that time showed clearly that ricin fell squarely within the purview of the law. But just a few months later, in early 2005, HHS revised its list and in this process, the entire non-overlapping list of human agents suddenly moved to a differently numbered section as it was published. That section number is not listed in the language in the 2004 revision, and so in ruling that Gibbs did not violate the law in possessing ricin, he is in effect making the entire HHS non-overlapping list exempt from the law. That means that under his interpretation, possessing the worst of the worst of the human pathogens or toxins, including even smallpox, cannot be charged under this law.

Here is the language of 18 US Code§ 175b(c), the section cited by the grand jury in the Gibbs indictment:

Whoever knowingly possesses a biological agent or toxin where such agent or toxin is a select agent for which such person has not obtained a registration required by regulations under section 351A(c) of the Public Health Service Act shall be fined under this title, or imprisoned for not more than 5 years, or both.
Whoever knowingly possesses a biological agent or toxin where such agent or toxin is a biological agent or toxin listed pursuant to section 212(a)(1) of the Agricultural Bioterrorism Protection Act of 2002 for which such person has not obtained a registration required by regulations under section 212(c) of such Act shall be fined under this title, or imprisoned for not more than 5 years, or both.

This part of the law was from the 2004 revision we discussed earlier. In his decision, Story notes that the reading of the whole of 18 US Code§ 175b directs us to the first part of it to find where the list of select agents can be found. It reads:
No restricted person shall ship or transport in or affecting interstate or foreign commerce, or possess in or affecting interstate or foreign commerce, any biological agent or toxin, or receive any biological agent or toxin that has been shipped or transported in interstate or foreign commerce, if the biological agent or toxin is listed as a non-overlap or overlap select biological agent or toxin in sections 73.4 and 73.5 of title 42, Code of Federal Regulations, pursuant to section 351A of the Public Health Service Act, and is not excluded under sections 73.4 and 73.5 or exempted under section 73.6 of title 42, Code of Federal Regulations.
Whoever knowingly violates this section shall be fined as provided in this title, imprisoned not more than 10 years, or both, but the prohibition contained in this section shall not apply with respect to any duly authorized United States governmental activity.
The problem is when we move to the current version  of these lists, found here, the numbering for the sections is off when we look at the lists, we see that the entire HHS non-overlapping list is found in section 73.3 and not in 73.4 or 73.5. The agents found in 73.3 are the worst of the worst of agents feared as biological weapons. Even smallpox is on that part of the list, and so, by Story’s ruling, now excluded from prosecution.
In his order, Story relies on this garbled numbering to dismiss the charge:
As described above, § 175b defines “select agent,” as a “biological agent
or toxin” that is listed in 42 C.F.R. § 73.4 or § 73.5. This language is
unambiguous. And in defining “select agent,” the statute does not reference a
non-exhaustive list or provide examples; rather, it says what the term “means.”
42 U.S.C. § 175b(d)(l) (emphasis added). ‘”[M]eans’ denotes an exhaustive
defmition[.]” StanselL 704 F.3d at 915 filth Cir. 2013) (citing United States v.
Probel. 214 F.3d 1285, 1288-89 (11th Cir.2000)). Thus, “[w]hen a statutory
definition declares what a term ‘means’ rather than ‘includes/ any meaning not
stated is excluded.” Id, (citing Colautti v. Franklin, 439 U.S. 379, 392-93 &
n. 10 (1979)). Here, neither 42 C.F.R. § 73.4 nor § 73.5 include ricin. The
statute does not reference-and thereby excludes-any other sections of the
C.F.R. So, applying the statutory definition, as the Court is bound to do, the
unavoidable conclusion is that “select agent” under 18 U.S.C. § 175b does not
include ricin.2
Story even knows how the garbled numbering came about:
In 2004, as part of the Intelligence Reform and Terrorism Prevention
Act, Congress changed the reference from “Appendix A of part 72” to Part 73.
Pub. L. 108-458, 118 Stat. 3638, § 6802(d). This had the effect of
criminalizing the possession of “a non-overlap or overlap select biological
agent or toxin in sections 73.4 and 73.5 of Title 42” of the C.F.R. However,
three months later, HHS re-formatted its regulations, which, in relevant part,
resulted in its list of select agents and toxins-including ricin-being moved to a
section of the C.F.R. (§ 73.3) that is not referenced in 18 U.S.C. § 175b.
Story’s ruling is technically correct and is a defense attorney’s dream. But his justification of it is infuriating:
After HHS overhauled its regulatory numbering scheme, Congress had ample opportunity
to amend the statute to make its definition of “select agent” comport to the
Government’s interpretation. It has been 14 years, and Congress is yet to do
so. And there are plausible explanations why. For instance, Congress may
have decided that the unregistered possession of ricin, alone, is not conduct
sufficiently culpable to justify the commission of a federal crime. Or, Congress
may have assumed that the illegality of having certain biological agents and
toxins, like ricin, for nefarious purposes is sufficiently encapsulated in other
statutory provisions. See 18 U.S.C. § 175. The Court cannot say, but it is not
for the Court to disregard a clear statutory definition in favor of absent
language that may or may not have been excluded purposefully.
We are not talking here about a single agent, ricin, being left off the list due to a clerical error. The renumbering left the entire HHS non-overlapping list of agents out of the referenced sections. How on earth could Story believe that Congress would suddenly decide, in early 2005,  that the entire HHS non-overlapping list was no longer of concern? Granted, anthrax is on the overlap list and so is still covered under Story’s interpretation, but it should be pointed out that the Amerithrax investigation of the 2001 anthrax attacks was in full gear in 2005 in its march toward hounding Bruce Ivins to his death, so bioterror was a very high priority for Congress and law enforcement at the time of this reclassification. In fact, the boondoggle BioWatch program was launched in 2003 and so in 2005, the generalized fear of bioweapons was pervasive. Also, don’t forget the role of bioweapons in general in the Bush Administration run-up to the invasion of Iraq in 2003, complete with Colin Powell’s fake vial of anthrax.
Further evidence of the government’s intent on the select agent list can be found when one looks for the list itself. For example, this listing clearly shows the government had no intent to exclude the HHS non-overlapping agents and cites relevant statutory authority.
Story attempts, in part, to wriggle out of the deep hole into which he has dug himself by pointing out other ways that Gibbs could be charged. From a footnote in the order:
2 The Court notes, however, that the possession of ricin is not a wholly legal
endeavor. To the contrary, 18 U.S.C. § 175(a) provides:
Whoever knowingly develops, produces, stockpiles, transfers, acquires,
retains, or possesses any biological agent, toxin, or delivery system for
use as a weapon,… 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.
In assessing the constitutionality of this provision under the vagueness doctrine, the
Eleventh Circuit held, “The statute provides a person of ordinary intelligence with fair
warning that possessing castor beans, while knowing how to extract ricin, a biological
toxin, from the beans, and intending to use the ricin as a weapon to kill people, is
prohibited.” United States v. Crump, 609 F. App’x 621, 622 (11th Cir. 2015) (citing
United States v. Lebowitz, 676 F.3 d 1000, 1012 (llth Cir.2012) (per curiam)).

Interestingly, when I went back to look at one of my posts on James Everett Dutschke, who was charged with possessing ricin in Mississippi in 2013, I see that he was indeed charged under 18 U.S.C. § 175(a).

The damage that Story has done in this ruling may not be limited solely to the HHS non-overlapping agents being left out of the law. Another aspect of the garbled re-numbering of sections is that § 73.5 is referenced as a list of proscribed agents. In reality, the section is headed “Exemptions for HHS select agents and toxins”. I would argue that this is further evidence of a simple error and not legislative intent, because it renders the bill unintelligible. Instead of a list of banned agents, it is a list of those that are exempt from the law due to their use in laboratories for diagnosis or research. Although Story does make passing reference to the differences among those agents that are on the list to be banned, those that are excluded and those that are exempt, I fear that opponents of biological research could latch onto Story’s ruling in an attempt to argue that shipment of these research or diagnostic samples could be prosecuted as bioterrorism. That could have a chilling impact on research to protect us from these very agents.

Congress clearly needs to fix this mess, and fix it quickly. Simple language adjustment in 18 US Code§ 175b(a)(1) could restore the law to applying to the proper lists of agents while excluding or exempting those for which it is appropriate.

23 replies
      • BobCon says:

        I’m not a lawyer, so excuse the ignorance, but if this occurred because “HHS overhauled its regulatory numbering scheme” why couldn’t HHS just create the appropriate subsection in the CFR with that number and be done with it? I realize the regulatory process has its own inertia, but it seems like it could be faster than changing the law.

        I realize that may put a list of poisons in the middle of some larger section on something like the testing of cosmetics on lab animals, but wouldn’t that be preferable to leaving this uncovered?

        For that matter, I would assume there are tons of situations where laws refer to sections of the CFR — how do they keep things harmonized if there is a need to rework the numbering of the CFR? Can these be handled on the agency side, or do they need new legislation every time?

        • Jim White says:

          I’m not a lawyer, either, so I don’t know what routes are available from the HHS side as opposed to from Congress. The bottom line, though, is that the situation is in urgent need of being rectified, even if the error is 14 years old. I also find it disappointing that we haven’t yet heard that the prosecution has refiled a charge under the section of the law that the judge clearly pointed them to. Since ricin isn’t covered under the original charge, it seems to this nonlawyer that double jeopardy wouldn’t apply to charging under a section of the law that does apply.

  1. Peterr says:

    If marijuana is on that list of no-longer-prohibited stuff, the GOP will have this fixed by dinnertime.

  2. Bruce Olsen says:

    Can someone explain how Story (Clinton-appointed, fwiw) could have avoided this obviously incorrect judgment? Can he just move the list back where it obviously belonged?

    Shoulda issued a stay, though.

    • bmaz says:

      I am not so sure where it is technically wrong. Can you point to that? Why are criminal defendants not entitled to the actual letter of the law? When defendants make such argument under the 4th Amendment in the face of oppressive surveillance, people cheer. But here not so much?

      • Bruce Olsen says:

        And that’s what I was getting at. Seems like there’s nothing to do but fix it in Congress.

        So glad we piss away so much time in partisan crap…

  3. orionATL says:

    1. I can accept simple error if,say, the history of the congressional revision showed extreme haste due to last minute changes before adjournment.

    2. I can accept simple error if HHS changes done by untrained people, say, interns, secretaries cutting and pasting. If there is any history to document that.

    3. I do remember a situation in the 00’s,though, in which a small, important addition was made to a nat sec bill at the midnight hour after house/senate reconciliation had occurred, a real no-no.  I may be being unfair in recollection but i think sen Arlene specter’s Office was suspected.

    Whatever, that no one brought this up internally in a memo/meeting for years is just not credible. The problem is motive is not apparent.

    • orionATL says:

      there is another possibility, other than snafus in the bureaucracy. i’m not saying this out of solid knowledge of this situation, but of general understanding, in other words, i got a wild hair in my ass.

      the key is how long the error has been maintained- years. there are too many lawyers, too many gov specialists, too many lobbyists, too many crackpots for this to go unnoticed for so long. and where were the prosecutors in this case? don’t they have and use paralegals to research on i’s and t’s? or did they find the errors and hope to pull that wool handkerchief more tightly over judge’s eyes.

      my new guess is that it is possible that this mistake was left as is because a corrected regulation would seriously jeopardize legitimate research. this speculation is modestly strengthened by the fact that ricin is not all that was left out of prosecutor reach.

      i seem to recall that throwing a monkey-wrench in r6esearch was a big criticism of the original bioterrorism act, which was typical knee-jerk, “we were on top of this all the time, guys”, congressional reaction, when congress hadn’t thought twice about the problem until cheney unleashed the top secret gov bioterrorism troops on the congress and others as part of his weapons-of-mass deception programs to justify invading iraq.

      there might be a parallel with this supposition and the later (1916) gov-and-corporations-cooperate-on-hacking legislation which may have ended up (inadvertently?)criminalizing legitimate hacking researchers who pointed out computer problems with, say, autos or tv sets.

  4. bacchys says:

    The judge made the right call. It’s not on him to correct a clear error like this. Any justification he uses is going to be nothing but his speculation.

    Infuriating, but blame Congress and the relevant Federal agencies for not correcting the problem.

  5. closet theorist says:

    Is it really possible that the Wash Post ran its article about the arrest of the Charlottsville white supremacists in the local section and not a single comment was posted online (presumably because nobody saw it, I searched for it using various keywords)…?  Given all that is going on with law enforcement and fbi, etc, isnt this an extremely important national story?

  6. Michael Keenan says:

    So this guy could also get off?

  7. jmac says:

    Just a question

    There are castor beans (Ricinus communis) growing in my garden.  Every year the seeds are collected to plant for the next.  It is not all that difficult to get ricin from Castor Beans (NB: Castor Beans ≠ Ricin).  If I continue to grow castor bean will I be in need of a lawyer soon.

  8. Jeffrey Kaye says:

    All quite fascinating. Looking at the list of possible agents, I was surprised to not see the agent that causes cholera, Vibrio cholerae. That is a very strange omission, as cholera has a long history of use as a bio weapon. 

  9. orionATL says:

    of course a simple political explanation is that white power terrorism is not terrorism and that nobody really wants to pursue white terrorists.

    but this really doesn’t sensibly fit with the extensive list of chemicals and the fact that furriners, like maybe ms-13 types, might want to get involved.

  10. Mark says:

    I was thinking the same thing, the judge probably felt that the man was being set up since a crushed castor bean is NOT the same thing as ricin.

    Ricin can be made from castor beans, but you do not get ricin from crushing a few castor beans, this is like saying i am threatening to detonate a thermonuclear weapon in a major city because I mailed a pinch of dirt, because after all the fuel for such bombs comes from the earth if you do enough to it.

    Was it intended to send a message? He admits as much, but isn’t sending messages one of our protected freedoms? of course I do not like this guy, nor the organization he belongs to, but we need the law to stop passing vague and often absurd prohibitions that can be twisted to make virtually anything appear to be something it is not. I have unpitted apricots in the cupboard, does that mean I intend to produce and hawk fake cancer treatments? (Laetrile).

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