Virginia Lawyers Weekly//July 9, 2020
Virginia Lawyers Weekly//July 9, 2020//
The defendant argued her conviction for possession of ricin must be set aside because this conduct was not criminalized at the time of the possession. The court, relying upon legislative history, found the unregistered possession of ricin was unlawful at the time she possessed it.
Debbie Siers-Hill filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Petitioner alleges four grounds for relief: (1) her sentence was imposed in violation of the law; (2) the court was without authority to impose a sentence; (3) her guilty plea was not knowing and voluntary because it was effectuated on the advice of defense counsel, who had not researched the statute under which petitioner was convicted and (4) defense counsel failed to research the statute under which petitioner was convicted.
All four of petitioner’s grounds for relief are intertwined, centering on the primary contention that her offense – possession of an unregistered biological agent or toxin (ricin) in violation of 18 U.S.C. § 175b(c)(l) – was not in violation of law at the time of said possession.
The court finds that § 175b criminalized the unregistered possession of ricin in petitioner’s case. Upon extensively assessing the legislative history associated with this statute, it is abundantly clear that Congress has always intended to criminalize such unregistered possession, but that this clarity has been wrongly called into question by HHS’s eleventh-hour action of renumbering portions of the C.F.R. As such, petitioner’s claim that she was sentenced in violation of the law is meritless, as § 175b criminalized the unregistered possession of ricin in petitioner’s case.
This conclusion is duly true as to petitioner’s second claim regarding the court lacking authority or jurisdiction with which to proceed against her. For federal crimes, Congress did so in 18 U.S.C. § 3231, providing district courts with “original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States.” Based on the discussion above, petitioner’s offense was one against the “laws of the United States.” The indictment charged petitioner with violating § 175b, a valid federal statute. As such, § 3231 empowered the court with jurisdiction to act over petitioner’s indictment.
The court is cognizant of the fact that this conclusion runs contrary to the outcomes in both United States v. Jordan, No. 4:18-cr-163, 2020 WL 1531367 (E.D. Ark. Mar. 30, 2020), and United States v. Gibbs, 2:17-cr-00005 (N.D. Ga. Sept. 21, 2018). In arriving at their joint conclusion that § 175b could not be read to criminalize unregistered possession of ricin, the courts in Jordan and Gibbs appeared to rely on reading the statute plainly, thereby ignoring that the change of the regulation could not truly alter the statute at issue, and the supposed existence of unclear congressional intent. However, this court is persuaded that the instant case requires application of the plain meaning of the statutory language, unless there is clearly expressed legislative intent to the contrary. Here, there is clearly expressed legislative intent contrary to a plain reading of the statute.
Finally, petitioner argues in her remaining two claims that her defense counsel rendered ineffective assistance of counsel for failing to research § 175b, which led to petitioner submitting a plea of guilty that was not knowing and voluntary. The record is sufficient for the court to conclude that petitioner did not receive constitutionally ineffective assistance of counsel. The record itself rebuts petitioner’s contention that her counsel failed to inform petitioner that her possession of ricin did not support a conviction under § 175b.
A defendant who claims that he received ineffective assistance of counsel in entering a guilty plea must also demonstrate that “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Here, petitioner has made no more than the bare formulaic assertion that, but for her counsel’s advice, she would not have pleaded guilty. However, this claim is not credible given the extent of the charges that petitioner avoided by not going to trial and the absence of any offered reason why she might have been confident of an acquittal.
Finally, even if this court were to conclude that § 175b could not be read to criminalize the unregistered possession of ricin in petitioner’s case, petitioner’s motion would fail nonetheless due to procedural default.
Petitioner’s § 2255 motion denied.
Siers-Hill v. United States, Case Nos. 2:18-cr-62, 2:20-cv-38, June 15, 2020. EDVA at Norfolk (Doumar). VLW 020-3-322. 25 pp.