United States of America v. Carol Anne Bond

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2677
UNITED STATES OF AMERICA
v.
CAROL ANNE BOND,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 2-07-cr-00528-001)
District Judge: Honorable James T. Giles
Argued March 23, 2009
Before: RENDELL, AMBRO, and JORDAN, Circuit Judges
Opinion filed: September 17, 2009

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2
Robert E. Goldman, Esquire (Argued)
Fox Rothschild
2700 Kelly Road, Suite 300
Warrington, PA 18976-3624
Eric E. Reed, Esquire
Fox Rothschild
2000 Market Street, 10th Floor
Philadelphia, PA 19103-0000
Counsel for Appellants
Laurie Magid
Acting United States Attorney
Paul G. Shapiro (Argued)
Assistant United States Attorney
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106-0000
Counsel for Appellees
OPINION OF THE COURT
AMBRO, Circuit Judge
Carol Anne Bond pled guilty to two counts of possessing
and using a chemical weapon, and two counts of mail theft, in

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Half a teaspoon of 10-chloro-10H-phenoxarsine1
ingested is lethal to an adult, while a few crystals of the
substance is highly toxic. The same is true for potassium
dichromate, with less than one-quarter of a teaspoon ingested
being lethal and an even smaller number of crystals is toxic.
App. at 239–56.
3
connection with her efforts to harm a former friend. She now
appeals the District Court’s pretrial order denying her motions
to dismiss the charges against her and to suppress evidence. She
also challenges her sentence. For the reasons that follow, we
affirm each of the Court’s actions.
I. Factual and Procedural Background
Bond was excited when her closest friend, Myrlinda
Haynes, announced that she was pregnant. Bond’s excitement
turned to rage when she learned that her husband, Clifford
Bond, was the child’s father. She vowed revenge.
Planning to poison Haynes, Bond (a trained
microbiologist) stole a quantity of 10-chloro-10H-phenoxarsine
from her employer, the chemical manufacturer Rohm and Haas,
and ordered over the Internet a vial of potassium dichromate.
These chemicals have the rare ability to cause toxic harm to
individuals through minimal topical contact.1
Bond attempted to poison Haynes with the chemicals at
least 24 times over the course of several months. She often

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4
would spread them on Haynes’s home doorknob, car door
handles, and mailbox. Haynes noticed the chemicals and
usually avoided harm, but on one occasion sustained a chemical
burn to her thumb.
Haynes called her local police about the chemical attacks.
They suggested that the substance might be cocaine and told
Haynes to clean her car and door handles on a regular basis.
Unsatisfied (to say the least) with this response, Haynes
complained to her local postal carriers about the chemicals on
her mailbox. They referred the matter to the United States
Postal Inspection Service.
Based on Haynes’s complaint, postal inspectors placed
surveillance cameras in and around Haynes’s home. These
cameras captured Bond opening Haynes’s mailbox, stealing a
business envelope, and placing potassium dichromate inside
Haynes’s car muffler. They specifically showed Bond going
back and forth between her car and Haynes’s with the
chemicals.
After testing the chemicals that Bond placed in Haynes’s
muffler, postal inspectors attempted to trace their origin to the
Rohm and Haas center where Bond worked as a technical
assistant. The inspectors determined that nearly four pounds of
potassium dichromate were missing from a common storage
area to which Bond had access.
With this information, the inspectors sought and received

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5
an arrest warrant for Bond and search warrants for her car and
home. They supported their warrant requests with an affidavit
detailing the gathered evidence, including the videotaped
footage, results of the chemical analyses, and the report of the
missing chemicals. The affidavit also explained Bond’s
responsibilities at Rohm and Haas, described her car and home,
and noted that Haynes had identified Bond from a photo array.
Postal inspectors arrested Bond and took her to a holding
cell in the Philadelphia Post Office. Once there, Bond
acknowledged and waived her constitutional rights, and
admitted to taking the chemicals from Rohm and Haas.
Meanwhile, other inspectors executed the search warrants,
finding a piece of Haynes’s mail and amounts of the chemicals
in Bond’s home and car.
A grand jury in the Eastern District of Pennsylvania
charged Bond with two counts of possessing and using a
chemical weapon, in violation of 18 U.S.C. § 229(a)(1), a
criminal statute implementing the treaty obligations of the
United States under the 1993 Chemical Weapons Convention.
The grand jury also charged Bond with two counts of mail theft,
in violation of 18 U.S.C. § 1708.
Bond moved to suppress certain evidence and to dismiss
the two chemical weapons charges. She claimed that the
affidavits supporting the search warrants failed to establish
probable cause to search her home and car, and she argued that
18 U.S.C. § 229 is unconstitutional because it violates principles

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6
of federalism embodied in our Constitution and the fair notice
requirements of its Due Process Clause.
The District Court denied Bond’s motions. It ruled that
§ 229 did not impinge on principles of federalism because it
“was enacted by Congress and signed by the President under the
necessary and proper clause of the Constitution . . . [to] comply
with the provisions of a treaty.” App. 168. The Court next
concluded that “the statute is not vague, [because] it is clear that
if anybody uses a toxic chemical for other than peaceful
purposes, th[at] person can be prosecuted.” Id. at 169. It ruled
as well that “the search warrants were properly issued,” because
sufficient evidence existed to permit a “probable cause
conclusion that a substantial amount of potassium dichromate
would probably be found in [Bond’s] vehicle or where she
lived.” Id. at 170–72.
Following the Court’s denial of her motions, Bond pled
guilty to all charges, reserving her right to appeal. The Court
then held a sentencing hearing at which it enhanced Bond’s total
offense level by two levels based on a determination under
U.S.S.G. § 3B1.3 that she used a special skill in the commission
or her offense. The Court ultimately sentenced Bond to six
years’ imprisonment, five years of supervised release, a $2,000
fine, and restitution of $9,902.79. Bond appeals.

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7
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under 18 U.S.C. §
3231. We have jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742.
We review de novo a challenge to the constitutionality of
a criminal statute. See De Leon-Reynoso v. Aschcroft, 293 F.3d
633, 635 (3d Cir. 2002). We consider “denial of a motion to
suppress for clear error as to the underlying factual findings and
exercise[] plenary review of the District Court’s application of
the law to those facts.” United States v. Perez, 280 F.3d 318,
336 (3d Cir. 2002). We likewise review de novo the District
Court’s interpretation of the Sentencing Guidelines and consider
its related findings of fact for clear error. See United States v.
Wood, 526 F.3d 82, 85 (3d Cir. 2008).
III. Discussion
Bond claims that (1) 18 U.S.C. § 229 is unconstitutional,
(2) the search warrants for her home and car were invalid, and
(3) her conduct did not justify a sentence enhancement for using
a special skill in the commission of a crime. We reject each of
these claims.
A. Constitutionality of 18 U.S.C. § 229
The United States, along with many other nations, signed
the Chemical Weapons Convention in 1993 to ensure “the

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8
complete and effective prohibition of the development,
production, acquisition, stockpiling, retention, transfer and use
of chemical weapons . . . .” 32 I.L.M. 800, 804 (1993). This
treaty states, among other things, that each signing nation
“shall[,] in accordance with its constitutional process, adopt the
necessary measures to implement its obligations under this
Convention.” Id. at 810. It specifically requires a complying
nation to “[p]rohibit natural and legal persons anywhere on its
territory . . . from undertaking any activity prohibited . . . under
this Convention, including enacting penal legislation with
respect to such activity.” Id.
The United States fulfilled its responsibilities under the
treaty through the Chemical Weapons Convention
Implementation Act of 1998, 22 U.S.C. § 6701, and the Act’s
associated penal provision, 18 U.S.C. § 229. In relevant part,
§ 229 reads:
(a) Unlawful Conduct—Except as provided in
subsection (b), it shall be unlawful for any
person knowingly—
(1) to develop, produce, otherwise
acquire, transfer directly or
indirectly, receive, stockpile, retain,
own, possess, or use, or threaten to
use, any chemical weapon; or
(2) to assist or induce, in any way, any

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9
person to violate paragraph (1), or
to attempt to conspire to violate
paragraph (1).
18 U.S.C. § 229(a). “Chemical weapon” is defined as a “toxic
chemical and its precursors, except where intended for a purpose
not prohibited under this chapter as long as the type and quantity
is consistent with such a purpose.” Id. at § 229F(1)(A). “Toxic
chemical” is defined in part as “any chemical which through its
chemical action on life processes can cause death, temporary
incapacitation or permanent harm to humans or animals.” Id. at
§ 299F(8)(A). Importantly, § 229 neither has a requisite federal
interest element (i.e., a requirement that an offender’s conduct
affect interstate commerce or a federal person, possession, or
interest) nor states a basis for its enactment beyond the
Chemical Weapons Convention (i.e., it does not assert authority
under the Commerce Clause or other constitutional provision).
Based on this framework, Bond asserts that § 229
violates constitutional principles of federalism because it is not
“based on a valid exercise of constitutional authority,” and does
not “require proof of a federal interest.” Bond’s Br. at 10. She
also claims that the provision is unconstitutionally vague and
overbroad “by virtue of its enormous scope” and its failure to
“provide fair notice” of the conduct covered by its terms. Id. at
28.

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The Tenth Amendment provides in full: “The powers2
not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the people.” U.S. Const. amend. X.
10
1. Federalism Challenge
“Under our federal system[,] the administration of
criminal justice rests with the States except as Congress, acting
within the scope of [its] delegated powers, has created offenses
against the United States.” Screws v. United States, 325 U.S.
91, 109 (1945). Bond contends that, by permitting prosecution
of “localized” offenses “without regard to the . . . federalism
boundaries enshrined in the Constitution[,]” § 229 “signals a
massive and unjustifiable expansion of federal law enforcement
into [the] state-regulated domain.” Bond’s Br. at 10–11, 16.
Specifically, she argues that because the statute “brings citizens
into the federal criminal area for conduct not properly the
subject of federal prosecutors,” id. at 11, and because it
“significantly restrike[s] the delicate balance between the federal
and state governments,” it violates “the unique system of
federalism” protected by the Tenth Amendment to the
Constitution. Id.2
The Government responds that the Tenth Amendment is
no impediment to the operation of § 229 because Congress had
authority to enact it under the Necessary and Proper Clause of

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The Necessary and Proper Clause gives Congress the3
power “[t]o make all Laws which shall be necessary and proper
for carrying into Execution the foregoing Powers, and all other
Powers vested by this Constitution in the Government of the
United States, or in any Department or Officer thereof.” Id. at
art. I, § 8, cl. 2. The Treaty Power permits the President, “by
and with the Advice and Consent of the Senate, to make
Treaties, provided two thirds of the Senators present concur . .
. .” Id. at art. II, § 2, cl. 2.
11
the Constitution as a law enforcing its Treaty Power. Relying3
on Missouri v. Holland, 252 U.S. 416, 432 (1920), the
Government asserts that § 229 need not be authorized by a
specific power given to Congress, nor contain a requisite federal
interest element, because the Chemical Weapons Convention is
a valid treaty and “[i]f [a] treaty is valid there can be no dispute
about the validity of the statute [implementing it] under Article
I, § 8, as a necessary and proper means to execute the powers of
the Government.” Gov’t’s Br. at 27 (quoting United States v.
Lue, 134 F.3d 79, 84 (2d Cir. 1988)). The Government
highlights as well the declaration in Holland that “[i]t is obvious
that there may be matters of the sharpest exigency for the
national well being that an act of Congress could not deal with
but that a treaty followed by such an act could.” 252 U.S. at
433; see also United States v. Lara, 541 U.S. 193, 201 (2004).
Thus, states the Government, even if § 229 were “otherwise
prohibited legislation” under the Tenth Amendment, “the treaty
power invest[ed] Congress with independent authority to pass
[it].” Gov’t’s Br. at 26.

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In addition, a significant scholarly debate exists over4
whether the Supreme Court correctly decided Holland.
Compare David M. Golove, Treaty-Making and the Nation: The
Historical Foundations of the Nationalist Conception of the
Treaty Power, 98 Mich. L. Rev. 1075 (2000) (asserting that
constitutional history and “the fundamental principle of national
supremacy” support Holland’s recognition of broad
congressional authority to enact treaty-enforcing legislation),
with Nicholas Rosenkranz, Executing the Treaty Power, 118
Harv. L. Rev. 1867 (2005) (arguing that Holland “is wrong and
. . . should be overruled” because constitutional text, history, and
12
These arguments appear to present issues of first
impression in our Court. They raise questions about what
constitutional authority treaty-implementing legislation must
cite, and how far such legislation may reach into an area over
which “[s]tates possess primary authority.” Brecht v.
Abrahamson, 507 U.S. 619, 635 (1993). The arguments also ask
us to wade into the debate over the scope and persuasiveness of
the decision in Holland. Compare United States v. Ferreira,
275 F.3d 1020, 1027–28 (11th Cir. 2001) (applying Holland to
hold that “because Congress’s authority under the Necessary
and Proper clause extends beyond those powers specifically
enumerated in Article I, section 8, it may enact laws necessary
to effectuate the treaty power” (internal quotations omitted)),
and Lue, 134 F.3d at 84–85 (same), with Onieda Indian Nation
of New York v. New York, 860 F.2d 1145, 1163 (2d Cir. 1988)
(remarking that, despite Holland, the ability of the treaty power
to override “state prerogatives” is uncertain).4

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structure, along with practical considerations, weigh against it).
This debate suggests mounting interest for reconsideration of the
rationale for Holland’s holding, especially arguments rooted in
the text and history of the Constitution. See Curtis A. Bradley,
The Treaty Power and American Federalism, 97 Mich. L. Rev.
390, 391–402, 423–61 (1998); Rosenkranz, supra, at
1880–1918; Edward T. Swaine, Does Federalism Constrain the
Treaty Power?, 103 Colum. L. Rev. 403, 404–533 (2003).
After identifying standing as an unresolved question in5
Bond’s federalism challenge to § 229, we requested and
received supplemental briefing from the parties.
13
But before we can reach the merits of these arguments,
we must ensure that Bond has standing to raise a Tenth
Amendment challenge to § 229. See Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 101–02 (1998) (requiring that courts
decide jurisdictional issues before considering the merits of a
claim). Because this inquiry implicates our jurisdiction, we
conduct it even though the parties did not address it in their
initial briefs. See Donovan v. Punxsutawney Area Sch. Bd., 336
F.3d 211, 216 (3d Cir. 2003).5
In Tennessee Electric Power Co. v. Tennessee Valley
Authority, 306 U.S. 118, 143–144 (1939), utility companies
chartered in Tennessee argued that the sale of electrical power
by the federally chartered Tennessee Valley Authority was an
impermissible federal regulation of a local matter in violation of
the Tenth Amendment. The Supreme Court rejected this
argument, concluding that the private companies lacked

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Bond argues that the language regarding private party6
Tenth Amendment standing in Tenn. Elec. Power Co. “is
textbook dicta and thus does not bind this Court.” Bond’s Supp.
Br. at 2. But “[t]he [Supreme] Court dismissed the Tenth
Amendment claim after analyzing both the standing issue and
the merits, and hence, the former holding is an alternative
ground, rather than obiter dictum.” Medeiros v. Vincent, 431
F.3d 25, 34 (1st Cir. 2005) (citing California v. United States,
438 U.S. 645, 689 n.10 (1978)). Furthermore, because the
standing question in Tenn. Elec. Power Co. concerned the
constitutional jurisdiction of a federal court, its resolution
predominates any discussion of the merits. See Steel Co., 523
U.S. at 94–95.
14
standing to maintain their claim:
The sale of government property in competition
with others is not a violation of the Tenth
Amendment. As we have seen[,] there is no
objection to the Authority’s operations by the
states, and, if this were not so, the [utility
companies], absent the states or their officers,
have no standing in this suit to raise any question
under the [Tenth] [A]mendment.
Id. at 144.6
Despite this explicit holding, courts of appeals are split
on whether private parties have standing to challenge a federal

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Since deciding Atlanta Gas Light Co., the Eleventh7
Circuit has retreated somewhat from that case’s
determination—which did not consider the holding in Tennessee
Electric—that private parties have standing to pursue a Tenth
Amendment claim. See Dillard v. Chilton County Comm’n, 495
F.3d 1324, 1335 (11th Cir. 2007) (denying private parties
standing to raise a Tenth Amendment claim because they
expressed only an “undifferentiated, generalized grievance”);
Seniors Civil Liberties Ass’n v. Kemp, 965 F.2d 1030, 1034 n.6
(11th Cir. 1992) (applying Atlanta Gas Light Co. “with admitted
doubts”).
15
act on the basis of the Tenth Amendment. Two circuit courts
have allowed private parties to bring such challenges. See
Gillespie v. City of Indianapolis, 185 F.3d 693, 703–04 (7th Cir.
1999), cert. denied, 528 U.S. 1116 (2000); Atlanta Gas Light
Co. v. U.S. Dep’t of Energy, 666 F.2d 1359, 1368 n. 16 (11th
Cir. 1982). Five have not. See United States v. Hacker, 5657
F.3d 522, 525–527 (8th Cir. 2009); Oregon v. Legal Servs.
Corp., 552 F.3d 965, 971–72 (9th Cir. 2009); Brooklyn Legal
Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 234–35 (2d
Cir. 2006), cert. denied, 128 S.Ct. 44 (2007); Medeiros v.
Vincent, 431 F.3d 25, 33–36 (1st Cir. 2005), cert. denied, 548
U.S. 904 (2006); United States v. Parker, 362 F.3d 1279,
1284–85 (10th Cir. 2004), cert. denied, 543 U.S. 874 (2004).
The Seventh Circuit Court stated most clearly the
rationale for permitting private parties, notwithstanding
Tennessee Electric, to raise Tenth Amendment concerns absent

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16
the involvement of a state. Deciding that a state police officer
had standing independently to maintain a Tenth Amendment
claim against a federal gun regulation, the Court emphasized
that “standing barriers have been substantially lowered in the
decades since the Supreme Court decided [Tennessee Electric].”
Gillespie, 185 F.3d at 700. It further explained that New York
v. United States, 505 U.S. 144, 181–82 (1992), cabined the
holding of Tennessee Electric by establishing that, “in making
Tenth Amendment claims, [an individual] actually is asserting
his own rights.” Gillespie, 185 F.3d at 703. The Court based
this explanation on the Supreme Court’s statement in New York
that “the Constitution divides authority between federal and
state governments for the protection of individuals[,]” 505 U.S.
at 181, which convinced the Seventh Circuit panel that “the
Tenth Amendment, although nominally protecting state
sovereignty, ultimately secures the rights of individuals.”
Gillespie, 185 F.3d at 703.
Contrary to this reasoning, the five circuit courts to reject
independent private party standing for Tenth Amendment claims
have focused on the continuing authority of Tennessee Electric.
See, e.g., Oregon, 552 F.3d at 972; Brooklyn Legal Servs. Corp.,
462 F.3d at 234. Noting that the Supreme Court’s “‘decisions
remain binding precedent until [it] see[s] fit to reconsider
them,’” Hacker, 565 F.3d at 527 (quoting Hohn v. United States,
524 U.S. 236, 252–53 (1998)), these courts have ruled that
Tennessee Electric denies private plaintiffs standing for Tenth
Amendment claims because there exists “no directly
contradictory authority from the Supreme Court.” Id. at 526.

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17
The courts also point to varying prudential considerations to
support their determinations. See, e.g., id. at 527 (suggesting
that the holding of Tennessee Electric comports with prudential
standing principles that generally limit a plaintiff to asserting his
own rights); Medeiros, 431 F.3d at 36 (hesitating to disregard
Tennessee Electric because doing so might induce a “substantial
increase in . . . litigation before the federal courts”).
We are persuaded by the reasoning advanced by the
majority of our sister courts and conclude that a private party
lacks standing to claim that the federal Government is impinging
on state sovereignty in violation of the Tenth Amendment,
absent the involvement of a state or its officers as a party or
parties. “If a precedent of [the Supreme] Court has direct
application in a case, yet appears to rest on reasons rejected in
some other line of decisions, the Court of Appeals should follow
the case which directly controls, leaving to [the Supreme] Court
the prerogative of overruling its own decisions.” Rodriguez de
Quijas v. Shearson, 490 U.S. 477, 484 (1989). The holding of
Tennessee Electric thus is binding irrespective of the language
in New York about federalism’s “protection of individuals.” See
Medeiros, 431 F.3d at 34 (noting also that New York never
actually dealt with the question of standing). Moreover, the fact
that the Supreme Court in this decade granted certiorari on, but
later declined to answer, the question of “whether private
plaintiffs have standing to assert ‘states’ rights’ under the Tenth
Amendment,” Pierce County, Washington v. Guillen, 537 U.S.
129, 148 n.10 (2003), does no more than indicate an interest of
at least four Justices in Tennessee Electric’s binding status.

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Despite Bond’s suggestion to the contrary, see Bond’s8
Supp. Br. at 4, our conclusion does not bar individuals from any
recourse in the face of Tenth Amendment violations accepted by
a state. As the First Circuit Court explained, “the State
represents the interests of its citizens in general, and, if it refuses
to prosecute a viable Tenth Amendment claim, the citizens of
that state may have recourse to local political processes to effect
change in the state’s policy of acquiescence.” Medeiros, 431
F.3d at 35.
18
Our interpretation makes it evident that Bond lacks
standing to pursue her Tenth Amendment challenge to § 229.
The “requisite representation by the states or their officers is
notably absent” from her suit, Brooklyn Legal Servs. Corp., 462
F.3d at 234, and she does not even attempt to argue that her
interests are aligned with those of a state. Cf. Parker, 362 F.3d
at 1284 (speculating that a private party could assert a Tenth
Amendment claim by showing that her claim “align[s] with the
state’s interest”). Accordingly, we will not reach the merits of
Bond’s arguments concerning the constitutionality of § 229
under our federal system of government.8
2. Vagueness Claim
The remainder of Bond’s constitutional challenge to 18
U.S.C. § 229 presents her claims that the statute is vague and
overbroad. She asserts that because “[v]irtually any activity
with a chemical . . . can cause ‘death, temporary incapacitation
or permanent harm to humans or animals’ . . . [, d]efendants in

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19
good faith could easily be unsure about what conduct is
prohibited” under the statute. Bond’s Br. at 28 (quoting 18
U.S.C. § 229F(8)(A)).
A statute is unconstitutionally overbroad if it “does not
aim specifically at the evils within the allowable area of control
by the government, but . . . sweeps within its ambit other
constitutionally protected activities.” Waterman v. Farmer, 183
F.3d 208, 212 n.5 (3d Cir. 1999) (internal quotations omitted).
“A statute is unconstitutionally vague if ‘men of common
intelligence must necessarily guess at its meaning and differ as
to its application.’” McAllister v. Att’y Gen., 444 F.3d 178, 186
(3d Cir. 2006) (quoting Connally v. Gen. Constr. Co., 269 U.S.
385, 391 (1926)). “[O]utside of the First Amendment context,
a party has standing to raise a vagueness challenge only if the
challenged statute is vague as to that party’s conduct.” United
States v. Woods, 915 F.2d 854, 862 (3d Cir. 1990).
Section 229, to repeat, closely adheres to the language of
the Chemical Weapons Convention and states, in relevant part:
(a) Unlawful Conduct—Except as provided in
subsection (b), it shall be unlawful for any
person knowingly—
(1) to develop, produce, otherwise
acquire, transfer directly or
indirectly, receive, stockpile, retain,
own, possess, or use, or threaten to

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“[P]urpose[s] not prohibited under” § 229 include9
“individual self-defense devices,” 18 U.S.C. § 229C, and:
(A) Peaceful purposes. Any peaceful purpose
related to an industrial, agricultural,
research, medical, or pharmaceutical
activity or other activity.
(B) Protected purposes. Any purpose directly
related to protection against toxic
chemicals and to protection against
chemical weapons.
(C) Unrelated military purposes. . . .
(D) Law enforcement purposes. . . .
Id. at § 229F.
20
use, any chemical weapon; or
(2) to assist or induce, in any way, any
person to violate paragraph (1), or
to attempt to conspire to violate
paragraph (1).
It further defines a “chemical weapon” as a “toxic chemical and
its precursors, except where intended for a purpose not
prohibited under this chapter as long as the type and quantity is
consistent with such a purpose.” Id. at § 229F(1)(A). And it9

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Because Bond understandably does not claim that her10
chemical attacks on Haynes were expressive activities protected
by the First Amendment, her vagueness challenge can succeed
only if the statute is vague in its application to her specific
conduct. See United States v. Powell, 423 U.S. 87, 92 (1975).
21
describes a “toxic chemical” as “any chemical which through its
chemical action on life processes can cause death, temporary
incapacitation or permanent harm to humans or animals.” Id. at
§ 299F(8)(A).
While these terms are certainly broad, we conclude that
they are neither vague as applied to Bond’s actions nor
overbroad in their relation to constitutionally protected behavior.
See McAllister, 444 F.3d at 186. First, there is no doubt that “a
person of reasonable intelligence” would know that Bond’s
conduct violated § 229. Over a period of eight months, Bond10
researched, stole, and deployed highly toxic chemicals with the
intent of harming Haynes. Any one of her attacks could have
delivered a lethal chemical dose to Haynes or her then-infant
child. Bond’s actions thus clearly constituted unlawful
possession and use of a chemical weapon under § 229.
Second, as even Bond notes, “[t]he statute casts a wide
net for obvious reasons.” Bond’s Br. at 31. Though it
potentially criminalizes the harmful use or production of
chemicals found in “the cleaning supply aisles at the local
grocery store,” id., it does not criminalize “protected acitivit[ies]
outside the permissible bounds of Congressional regulation.”

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22
McAllister, 444 F.3d at 186. It therefore is not
unconstitutionally overbroad.
B. Validity of Search Warrants
Aside from her constitutional challenge to § 229, Bond
seeks to suppress the evidence gathered from her home and
vehicle “[b]ecause no probable cause to search [them] existed.”
Bond’s Br. at 33. Bond claims that the affidavit supporting the
search warrants “lacked any statement as to why the affiant
might have expected the desired evidence to be present at either
location,” and “provided no basis for the conclusion that [Bond]
owned the specified vehicle or resided at the address provided.”
Id. at 34–35. These claims fail.
“To find probable cause to search, there needs to be a
‘fair probability that contraband or evidence of a crime will be
found in a particular place.’” United States v. Burton, 288 F.3d
91, 103 (3d Cir. 2002) (quoting Illinois v. Gates, 462 U.S. 213,
238 (1983)). To determine this, a court must consider the
“totality of the circumstances,” Gates, 462 U.S. at 238, and need
not conclude that it was “more likely than not” that the evidence
sought was at the place described, see Texas v. Brown, 460 U.S.
730, 742 (1983). We have explained that “[d]irect evidence
linking the place to be searched to the crime is not required for
the issuance of a search warrant.” United States v. Hodge, 246
F.3d 301, 305 (3d Cir. 2001). This is because “probable cause
can be, and often is, inferred by considering the type of crime,
the nature of the items sought, the suspect’s opportunity for

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Bond’s possession and use of significant quantities of11
toxic chemicals additionally gave rise to probable cause that she
was keeping them in her home. Cf. Hodge, 246 F.3d at 306 (“It
is reasonable to infer that a person involved in drug dealing . .
. would store evidence of that dealing at his home.”); United
States v. Whitner, 219 F.3d 289, 297 (3d Cir. 2000) (“[E]vidence
associated with drug dealing needs to be stored somewhere, and
. . . a dealer will have the opportunity to conceal it in his home.
After all, a dealer logically could conclude that his residence is
the best, and probably the only, location to store . . . large
23
concealment and normal inferences about where a criminal
might hide the fruits of his crime.” Id.
In this case, Postal Inspectors described the following
evidence to support search warrants for Bond’s home and car:
(1) the threats made by Bond to Haynes; (2) video coverage
showing Bond stealing Haynes’s mail, “placing a red powdery
substance on the inside of . . . Haynes’s car muffler,” and “going
back and forth several times between her own car and . . .
Haynes’s car”; (3) Bond’s duties at Rohm and Haas and the
report of the chemicals missing from its storage area; (4)
Haynes’s identification of Bond; (5) the inspectors’
determination “that Carol Ann Bond is the owner of the 2007
Saturn Ion silver or grey 4 Door Sedan”; and (6) the specific
location of Bond’s home. App. at 29–31. This represented “an
accumulation of circumstantial evidence that together indicates
a fair probability of the presence of contraband at the home [and
vehicle] of the arrested.” Burton, 288 F.3d at 103.11

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quantities of drugs . . . .”).
24
In sum, because “the Government proffered sufficient
evidence in the . . . affidavit that there was a ‘fair probability
that contraband’ would be found [in Bond’s home and car], the
warrant[s] [were] validly sought and approved, and we will not
suppress the evidence that resulted from the search of that
property.” Id. at 105 (quoting Gates, 462 U.S. at 238).
C. Appropriateness of “Special Skill” Sentence
Enhancement
Bond’s final challenge to the District Court’s order
concerns her two-level sentence enhancement under U.S.S.G. §
3B1.3 for using a special skill to facilitate the commission of a
crime. She claims that this enhancement “reflects a
misapplication of the sentencing guidelines and constituted clear
error by the sentencing court.” Bond’s Br. at 40. We disagree.
Section 3B1.3 of the Sentencing Guidelines provides for
a two-level enhancement where “the defendant . . . used a
special skill . . . in a manner that significantly facilitated the
commission or concealment of the offense.” “The purpose of
this section is to add to the punishment of those who turn
legitimate special skills to the perpetration of evil deeds.”
United States v. Mainard, 5 F.3d 404, 406 (9th Cir. 1993); see
also United States v. Young, 932 F.2d 1510, 1513 (D.C. Cir.
1991). Thus, a sentencing court is required to make two

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findings before imposing an upward adjustment for use of a
special skill: “(1) the defendant possesses a special skill; and (2)
. . . used it to significantly facilitate the commission or
concealment of the offense.” United States v. Batista De La
Cruz, 460 F.3d 466, 468 (3d Cir. 2006).
The application note to § 3B1.3 defines “special skill” as
“a skill not possessed by members of the general public and
usually requiring substantial education, training, or licensing.”
It further states that examples of individuals with special skills
“include pilots, lawyers, doctors, accountants, chemists, and
demolition experts.” U.S.S.G. § 3B1.3 app. n.4. “[A] § 3B1.3
sentence enhancement,” however, “is not limited to persons who
have received substantial formal education, training from
experts, or who have been licensed to perform a special skill.”
United States v. Urban, 140 F.3d 229, 236 (3d Cir. 1998).
Bond argues that, despite her advanced degree in
microbiology, she does not possess a special skill because she
merely “was a low level technical analyst” at Rohm and Haas
who “did not even use the two chemicals charged in the
indictment.” She emphasizes that “95% of the 20,000 chemicals
[at Rohm and Haas] were listed on the company’s computer
where any employee could search the chemical by name, see
where it was located, and ‘go and borrow it.’” And she asserts
that all Rohm and Haas employees “receive[d] safety training
and learn[ed] how to read Material Safety Data Sheets . . . [,]
which are published for all chemicals available in the United
States.” Bond’s Br. at 45.

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26
These contentions fall far short of persuasive. With her
degree and work experience, Bond has skills and knowledge
“not possessed by members of the general public and usually
requiring substantial education, training, or licensing.” U.S.S.G.
§ 3B1.3 app. n.4. She is specifically trained in the development
and application of biocides, which are defined as “poisonous
chemical substance[s] that can kill living organisms.” Webster’s
New World Dictionary 75 (1966). She also is competent in
working with chemicals and researching them according to their
labeled qualities. Taken together, these attributes constitute a
“special skill” for purposes of U.S.S.G. § 3B1.3.
With regard to the second prong of the special skill
enhancement test, use of a special skill “in a manner that
significantly facilitate[s] the commission or concealment of the
offense” is proven by “a direct use of the special skill.” United
States v. Hickman, 991 F.2d 1110, 1113 (3d Cir. 1993)
(emphasis in original). The First Circuit Court, for instance,
held that a repairman of bank machines directly used his special
skill when he caused the machines to malfunction in order to rob
them. See United States v. Aubin, 961 F.2d 980, 984 (1st Cir.
1992). Even more pertinent, the Seventh Circuit Court held that
a lab technician with a background in biology who ran a
methamphetamine lab directly used his special skill in the
commission of a crime. See United States v. Fairchild, 940 F.2d
261, 263–66 (7th Cir. 1991). The Court explained that the lab
technician specifically had “used his knowledge of chemistry to
purchase chemicals for his company, and put them together in
the ‘right combination’ . . . to make methamphetamine.” Id. at

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27
266.
Applying similar logic to Bond, it is apparent that she
employed her special skill to select the unusually toxic
chemicals she used against Haynes. In particular, her training
and position allowed her to research and steal chemicals that
were more toxic via topical exposure than ingestion. It also
facilitated her handling and deployment of the chemicals.
Additionally, it is unquestionable that Bond’s special skill
influenced her decision to use toxic chemicals as her weapon of
revenge. Poisoning one’s rivals, of course, is nothing new. But
attempting to do so through the systematic application of 10-
chloro-10H-phenoxarsine is not an approach typically taken by
members of the general public. Rather, as the District Court
concluded, it reflects the plan and actions of an individual
trained in the use of biocidal chemicals.
The District Court accordingly did not err in assigning
Bond a two-level sentence enhancement for using a special skill
“in a manner that significantly facilitated the commission or
concealment of the offense.” U.S.S.G. § 3B1.3. Bond’s
education and training constitute a special skill, and she directly
used that skill committing her crime.
IV. Conclusion
Bond fell within the ambit of the federal chemical
weapons statute by strategically employing toxic chemicals with
the intent to harm Haynes. As a private party acting

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independently of a state, she lacks standing to challenge the
constitutionality of this statute on the basis of the Tenth
Amendment, and her claims that the statute is vague and
overbroad fall short of the mark. Moreover, law enforcement
personnel legally obtained the evidence that led to her
indictment, and the special skill sentence enhancement that the
District Court applied to Bond appropriately punished her
offenses. For these reasons, we affirm the judgment of the
District Court.

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