please the court tina schneider for defendant chang li li was convicted of at that temp to acquire the biological toxin raisen for use as a weapon and two related felonies reisen is an extremely lethal toxin with no benign purpose however at least conduct did not fit within the biological weapons and the statute itself is unconstitutional these issues weren't raised below and normally in this situation the court applies a plain error standard of review but plain error is intended to ensure that a defendant doesn't try to have it both ways that is take one stance at the district court saying not objecting to a instructions and another at this court say complaining about the instructions but here there was no strategic advantage to lea failing to raise these arguments below and so he should not be subject to the higher standard of her view in this court even under the plain error standard for review  those should prevail in bonn the supreme court held that in the context of the chemical weapons statute a defendant who used talk to toxic chemicals to injure a romantic rival did not fall within the statute that this was not a weapon within the meaning of the statute beyond told us that the statue must be read consistent with principles of federalism that is leaving the police power to the states and with the purpose of the treaty it was implementing a treaty about warfare and terrorism not about run of the mill crime actually bonds just that we folk that the focus was both on the type of chemical and the manner in which it was you've just told us that the type of chemical here raisen by contrast to the chemicals that issue in bond has no legitimate use and is deadly so so right away aren't we quite you know quite different universe than in bond no i would say no the bird out of all the chemicals in bond were potentially lethal there's no question that they  legitimate uses and that but that's in sharp contrast to rice that's right but the court said after discussing the chemicals and bond the court said more importantly it does not fall within that the meaning of weapon as it was used in this statute now the bio logical weapon statute and the chemical weapons statute are so similar that the  jurisdictional limits imposed by bond have to apply to the biological weapons statute to both were enacted to implement international arms control treaties both arose in response to war crimes an act of terrorism and both would intrude on the state police power if construed as broadly as the government maintains the purpose of the biological weapons convention that underlies this statute was disarmament was war crimes was weapons of mass destruction that was not what was it issue in this case when i ask you i mean one of the things that influence that it was a one time assault right well actually it was repeated attempts to assault the rifle the victim to a person though one person right now  here as i understand the record the defendant put forth that he intended to mark it once he developed it and successfully used it in the case at hand he intended to market rice and as a means of killing some people without without leaving it a trait why why isn't that enough to bring it within the federal sphere a couple of thoughts your honor may first is that we don't charge and convict people based on their hopes and dreams of whatever they are here was creating a market for death pills the second thing more importantly is that even if he had somehow developed you know pills that he could market to people that is still just a way to poison individuals it's not a weapon actually aspirational cripes your client is convicted of attempting to possess a pile logical toxin one dose right but in soliciting it he made plain that he did not intend to may have this be a one time purchase he's his plan for this toxin was unlike bond two to market it except your honor instead of one then it would have fall in with the end there wouldn't have been a federalism concern but there is because the only solicited one to start no your honor i don't think that i am trying to get a sense of where was all lines here so if i go out and i say i shoot one person a day for one hundred days i've killed one hundred people i would not be considered  having used a weapon of mass destruction even though one hundred people died as a result of my actions when we talk about weapons of mass destruction which was one of the concerns underlying the treaty and the statute we're talking about something that is done that injures or kills a lot of people at one time so we don't add where you say example that's not far fetched a rice in pill words used to kill someone in the united states for political purposes political retaliation akin to what happened in london are you saying that that could not be prohibited by this statute no because i am not saying that i mean it doesn't fit your mass destruction up to one word requirement when we're talking about assassination so the treaty and the statute aimed at terrorism war crimes assassination so when assassination is different from a murder you wouldn't say i assassinated my neighbor you would say i  neighbor an assassination means a killing to send a message to intimidate or coerce a civilian population or make a government responded a certain way and assassinations are certainly within this the government's the federal government's purview here and there's no indication whatsoever that this was intended to assassinate a prominent person the government speculates in its brief that it may have been the defendant's father who was the intended victim but i think that's just mere speculation but if we take this category of crimes that is individual murders by poison out of the hands of states which according to the government that's what has happened here  had been real and the one of the two chemicals bond hughes was ordered on amazon and presumably delivered through the mail and the court did not find that was  small animals but where there is no question rice has bad stuff there's no good purpose for it that's not what i'm here to argue what i'm here to argue is the term for use as a weapon is a specific has a specific meaning that doesn't encompass lee's conduct here and that's what bond held and that's what we're asking this court to hold thank you i know you w my name is andrew beatty i represent the government in this appeal and also represent represent the government in the trial below the defendant concedes conceded two points just now in her argument the distinguish this case from bo first the rice and is a deadly poison with no legitimate use and second that the defendant planned to create a market to sell death pills on the internet both of those points are fatal to mr lee's argument statute out of federalism concerns the three major concerns in bombed were the definition of chemical weapons being improbable improbable excuse me improbably broad that's not the case here it's a much narrower  statute biological agents and toxins are defined much more narrowly they have to be on this on a schedule don't they they have to be specifically identified and they're here and i write about that they can be your own or the the regulations do specifically convention also specifically the rice and but the the definition in the within the statute requires that these things be poisonous poisonous substances that produce or produced by plants or animals that's already not in the realm of chemical precursors which the supreme court noted could include things like vinegar common household objects and here the particular chemical rice a particular biological toxin that was used was attempted to be acquired was raisen that's again much more serious than the chemicals that were used in bond ultimately those chemicals caused a minor rash on the victim thumb were treated with water here rice and is deadly it's generally undetected on autopsies and there's no known him to do and finally i think most importantly the circumstances that  mr lee was intending to use the rice and for bring this very far from the the facts the bond was considering even the single dose he was attempting to acquire this for use as a murder weapon  the facts even of that single shipment showed that he contemplated future use the loose rice and that your honor mentioned he said that he was going to experiment on that that's consistent with all of his discussions of attempting to to find a perfect death pill that he could make money selling on the dark web i ask you can want to fire rice if one has an appropriate license yes rather there's a pretty substantial regulatory regime federal regulatory regime the department of health and human services can allow people to acquire rights and for biomedical research for example we go into some that's correct under this statute and this yes the statute says the possession or acquisition of rice and dealing with something that can be analogized controlled substances absolutely your honor think i don't know whether each of those were illegal to possess but they were much more common household chemicals at least some of them that were used i'm happy to discuss the other bases for the constitutionality of the statute if the court has any questions on that point otherwise i'm happy to rest on my submission thank you thank you a few points environed the chemicals were not one of the chemicals was not available to the general public the defendant involved stole that from her employer chemical secondly the definition of biological weapon is actually much broader than the definition of chemical weapon not now or as the government would have you believe in both statutes the substances regulated are those that can cause death or harm to humans or animals but the biological weapon statue goes further and says it also includes substances harmful to plants substances that can cause deterioration of food water material of any kind and substances that are harmful to the environment so it's way broader than the chemical weapons statute in fact if i were mad at my neighbor i had ill intent and i sent my dog over to pee on my neighbor's lawn that would be deployment of a biological weapon if you were to accept the government's argument because it's the  toxic material of an animal that can cause harm to plants on your federalism argument though once the substance is federally controlled it is illegal to possess it except in conformity with federal law why isn't the use of the weapon intending to use it to kill someone then permissibly a matter for federal law because the government enlarges the statute beyond what the treaty that it was implementing concerned and what the federal government can do so for example if you interpret this allowing that in italy again it's my controlled substance analogy and i'm trying to figure out why that wouldn't be an appropriate one because this statute says for use as a weapon it doesn't say you can have horizon or you can have these biological agents it says you can have them for use as a weapon i don't know how that helps you i would think it would would be even more appropriate if they control the substance you can't possess it without a license and if you use it and the reason they control it is because it's deadly and if you use it to try to kill somebody then then yes the federal law will come down on you why is that not permissible why does that offend federalism i would i would understand the argument if you were taking the view that they can't control it at all they can't control its possession but once you grieve the federal government can control its possession i would think they could penalize uses of it that cause actual harm what am i missing in your argument well for one thing this statute covers almost every substance on earth it covers any  we have to go further than that and and approve all possible uses of the statute we only have to decide your client's the application of the statute to your client isn't that right well my client did use this as a weapon under the statute the section has to be interpreted consistent with and bond said no this is not what it's meant for use as a weapon peaceful peaceful purposes does not mean anything