           Case: 14-15293   Date Filed: 07/06/2015   Page: 1 of 4


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-15293
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 2:11-cr-00044-RWS-JCF-3



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

SAMUEL J. CRUMP,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                              (July 6, 2015)

Before TJOFLAT, MARCUS and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:
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      Samuel Crump was convicted of possession of a biological toxin for use as a

weapon, in violation of 18 U.S.C. §§ 175(a) and 2. He appeals his conviction,

raising one issue: whether his conviction is invalid because § 175(a) failed to

provide him with fair notice that the conduct in which he engaged was prohibited.

As the Supreme Court stated in United States v. Wilson, 553 U.S. 285, 304, 128 S.

Ct. 1830, 1845, 170 L. Ed. 2d 650 (2008), “[a] conviction fails to comport with due

process if the statute under which it is obtained fails to provide a person of

ordinary intelligence fair notice of what is prohibited, or is so standardless that it

authorizes or encourages seriously discriminatory enforcement.” Id. at 304, 128 S.

Ct. at 1845. Crump argues that a person of ordinary intelligence would not know

that possessing a castor bean in its naturally occurring state—in which it contains

ricin, a biological toxin—is illegal under § 175(a).

      Section 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.

18 U.S.C. § 175(a) (emphasis added). Section 175(b) provides:

      Whoever knowingly possesses any biological agent, toxin, or delivery
      system of a type or in a quantity that, under the circumstances, is not
      reasonably justified by a prophylactic, protective, bona fide research,
      or other peaceful purpose, shall be fined under this title, imprisoned
      not more than 10 years, or both. In this subsection, the terms
      “biological agent” and “toxin” do not encompass any biological agent
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      or toxin that is in its naturally occurring environment, if the biological
      agent or toxin has not been cultivated, collected, or otherwise
      extracted from its natural source.

Id. § 175(b) (emphasis added). Section 175(c) defines the phrase “for use as a

weapon” as including “the 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.” Id.

      Section 178 of Title 18 contains definitions for several of the terms in § 175,

including “biological agent” and “toxin.” Id. § 178. “‘[B]iological agent’ means

any microorganism . . . or infectious substance, . . . capable of causing . . . death,

disease, or other biological malfunction in a human . . . .” Id. § 178(1). “‘[T]oxin’

means the toxic material or product of plants, animals, miocroorganisms . . . , or

infection substances, . . . and includes . . . any poisonous substance . . . produced

by a living organism . . . .” Id. § 178(2).

      Section 175(a) is not vague as applied to Crump. See United States v.

Wayerski, 624 F.3d 1342, 1347 (11th Cir. 2010) (“Where, as in this case, a

vagueness challenge does not involve the First Amendment, the analysis must be

as applied to the facts of the case.”). 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. See United States v. Lebowitz, 676 F.3d 1000,


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1012 (11th Cir. 2010) (per curiam). Though § 175(b) excludes from liability the

possession of “any biological agent or toxin” that “has not been cultivated,

collected, or otherwise extracted from its natural source,” this exclusion explicitly

applies only to subsection (b). It does not apply to § 175(a), under which Crump

was prosecuted, and which requires the additional showing that the defendant

“knowingly . . . possess [the] biological agent [or] toxin . . . for use as a weapon.”

18 U.S.C. § 175(a) (emphasis added). Crump’s conduct clearly transgressed 18

U.S.C. § 175(a). Thus, his complaint of vagueness is unavailing, see United States

v. McGarity, 669 F.3d 1218, 1234 (11th Cir. 2012), and his conviction is,

      AFFIRMED.




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