* Chief Judge of the Western District of Louisiana, sitting by designation.

1 IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________

No. 99-40247

________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee

-vsJOHNIE WISE AND JACK ABBOTT GREBE, JR.,

Defendants-Appellants

____________________________________________

Appeals from the United States District Court

Southern District of Texas

____________________________________________

July 31, 2000

B efore WIENER and STEWART, Circuit Judges, and LITTLE,

District Judge. *

LITTLE, District Judge:

Defendants-appellants Johnie Wise (“Wise”) and Jack

Abbott Grebe, Jr. (“Grebe”) appeal the judgment of criminal

convic tion entered on 5 February 1999, in the United States1 The Republic of Texas is an organization that is dedicated to removing all federal government operations from the

State of Texas and re-establishing Texas as an independent nation.

2 District Court for the Southern District of Texas, Brownsville

Division. Appellants argue that a number of errors occurred

with regard to the trial, as a r esult of which this Court

should find the evidence in sufficient to sustain their

conviction or, alternatively, reverse and remand for a new

trial. We AFFIRM the judgment and the district court in all

respects.

I. BACKGROUND

A. Facts of the Case

In March 1998, while shop ping at a store in Harlingen,

Texas called the “Bargain Barn,” John Cain (“Cain”), a selfemployed computer consultant, met owner John Roberts

(“Roberts”) and employee Oliver Dean Emigh (“Emigh”). During

the course of conversation, Roberts told Cain that he was a

m ember of the Republic of Texas 1 (“ROT”) and often nee ded

documents typed for ROT legal mat ters. Cain offered his

assistance and returned to the Bargain Barn the next day to

discuss computer-related topics with Roberts. Cain briefly

met Johnie Wise, another ROT member, during the meeting.

Cain started working for Roberts on a daily basis but was

concerned about Roberts’ ROT affiliation. On 10 March 1998,2 When Cain told Roberts that running warrant checks was illegal, the latter’s response allegedly was that he did not

care.

3 Cain communicated with the Federal Bureau of Investigation

(FBI) in Brownsville. Cain recited the facts of meeting

Roberts, including Roberts’ request for secretarial assistance

on ROT matters. The FBI detected no illegal activity based on

what Cain told them. The information supplied by Cain was

consistent with what the FBI already generally knew about ROT,

and the FBI simply documented what Cain said. Cain was told

that he could notify FBI Agent David Church (“Agent Church”)

if he had more information to relay.

One of the tasks that Roberts asked Cain to perform was

to run checks for ou tstanding warrants against ROT members.

Cain approached the FBI again on 17 March 1998, at which time

Agent Chu rch advised Cain that running warrant checks was

i llegal and that Cain should inform Roberts of the same. 2

Cain also told the FBI that Roberts had invited him to attend

the ROT meetings. Agent Church told Cain that whether or not

to attend was entirely Cain’s decision. Cain chose to attend

the meetings, at one of which Cain met Jack Abbott Grebe, Jr.

Grebe visited Cain’s residence regularly to make photocopies,

and Wise began accompanying Grebe on the visits. During that

time, Cain had no communication with the FBI.

On 24 March 1998, Cain met with Agent Church again and3 When “shopping out,” ROT would file claims against the local, state, and federal governments. If the claims were

not resolved to ROT’s satisfaction, it would obtain favorable judgments from a ROT “common law court” and have those

judgments satisfied from the payment of international debt owed to the federal government.

4 During dinner after the meeting, Cain mentioned to Roberts and his wife that it was easy to obtain information

about explosives and bombs off the internet. Roberts’ wife responded by talking about how easy it was to make bombs from

everyday household items. The FBI told Cain that such general discussion about bombs was not illegal but that the FBI would

be interested in hearing whatever specific information Cain received.

4 shared what had been discussed during and after a local ROT

meeting. Some of the topics that had been discussed were

“shopping out” 3 and obtaining information regarding explosives

from the internet. 4 When Cain stated his belief that Roberts

was trying to recruit him as a ROT member, Agent Church

replied that whether or not to join was Cain’s decision alone.

According to the FBI, they did not recruit Cain as a

confidential government informer at that time but did offer,

without any s olicitation, to reimburse Cain for his travel

expenses.

Cain next met with Agent Church on 1 April 1998 and

related more information about ROT discussions. Agent Church

reimbursed Cain $235 for his travel expenses and gave the

latter an unsolicited $200 for lost earnings as a result of

Cain’s attendance at the meetings. Agent Church advised Cain

that certain activities discussed at the ROT meetings may be

violati ons of state or local law but that as of yet nothing

appeared to constitute a federal offense.

On 29 April 1998, Cain met again with Agent Church to5

tell the latter that Wise and Grebe had gone to Cain’s

residence the day before and had asked Cain to find the e-mail

addresses of various government agencies, namely the Internal

Revenue Service (IRS), the Drug Enforcement Administration

(DEA), the Central Intelligence Agency (CIA), the FBI , the

White House, the United States Attorney Gen eral, the Texas

Attorney General, and the Texas Department of Public Safety.

According to Cain, Wise and Grebe wanted to send threatening

messages to the agencies and their employees if the demands of

the ROT were not met. Wise discussed the idea of using

pathogenic agents for diseases. Wise briefly described to

Cain his proposal to convert an everyday Bic® lighter into a

dart gun device from which a cactus thorn coated with some

type of slow-acting poison or biological agent could be shot

at unsuspecting persons. Agent Church told Cain that it was

not against the law to voice one’s thoughts in such a manner.

But he also told Cain to listen carefully to what Wise and

Grebe say when they next call him and to ask specific

questions, if Cain was comfor table doing so, regarding the

proposed dart gun device.

Moreover, Cain told Agent Church that Wise and Grebe had

asked Cain if it was possible to do things on the internet

anonymously, without leaving a trace. Cain told them that it

was in fact possible through an inter net service called6

“Anonymizer,” and he showed them the website on his computer.

Cain eventually accepted the position of “Undersecretary

of Trade and Commerce” for ROT. Between the April 29 meeting

and Cain’s next meeting with Agent Church on 20 May 1998, Wise

and Grebe shared with Cain their angry sentiment that the

“change in power” (referring to the re-establishment of Texas

as a Republic, with its own government) was taking too long.

They proposed having Emigh draft a letter to send out to the

various government agencies previously menti oned. Not long

thereafter, Wise and Grebe gave Cain a handwritten letter that

laid out their plan, specifically targeting the IRS and the

DEA. Wise and Grebe made some changes to that letter, and

Cain typed the letter into the computer at their instruction.

On 20 May 1998, Cain met with Agent Church to describe

the plan in greate r detail and to deliver a copy of the

letter. Agent Church told Cain that the FBI was interested in

any inform ation Cain received and that Agent Church was

recommending the opening of an FBI investigation.

Furthermore, he told Cain to get detailed information

regarding the plan if Cain met again with Wise and Grebe.

A few days later, Wise gave Cain a third and final draft

of the letter, titled “Declaration of War.” Grebe was present

and participated in making the changes. Cain typed the letter

into the computer as instructed, printed several copies of the5 The second letter reads:

Dear Mr. Rossotti,

Your IRS employees and their families have been targeted for destruction by revenge. These

people are extremely mad and will not accept the inequities any longer. Non-traceable, personal delivery

systems have been developed to inject bacteria and/or viruses for the purpose of killing, maiming, and

causing great suffering. Warn all concerned so that they may protect themselves and be made aware of

this threat to themselves and their families. Good luck!

7 document, and saved it on a compute r disk. Wise and Grebe

asked Cain to find the e-mail addresses of the select

government agencies and to send the letter anonymously via email such that it would not be traced back to his computer.

They discussed the idea of using a computer terminal at the

Brownsville public library and transmitting the letter through

the Anonymizer website so that if it were traced somehow, it

would be traced to the library rather than to Cain.

Grebe later handed Cain another typed document, a followup letter to the first that was to be sent if the response to

the first letter was deemed unsatisfactory. 5 If the response

to the second letter in turn were deemed unsatisfactory, then

the next step in the plan was to act upon the threat by

actually infecting people with a biological agent. According

to the plan, Wise was to procure the biological agent and to

build the delivery device. Wise discussed the possibility of

using such agents as botulism, rabies, and anthrax. According

to Cain, Wise and Grebe urged Cain to send the Declaration of

War e-mail because they thought he was taking too long to do8

so.

On 1 June 1998, Cain handed over to the FBI, who by now

had opened an official investigation, a copy of the final

draft of the Declaration of War and a copy of the Rossotti

letter. Agent Church told Cain not to e-mail anything until

he received proper approval. He again told Cain that the

latter should obtain as much specific information as possible

and notify the FBI if anything of an emergency nature arose.

The case became a ssigned to FBI Agent Franklin Sharkey

(“Agent Sharkey”). Cain consented to Agent Sharkey’s request

to record their conversations. Subsequently, the FBI set up

electronic surveillance and authorized Cain to send e-mails in

an undercover investigation. The FBI rejected Cain’s idea of

using a public librar y computer and suggested instead that

Cain use his home computer. On 11 June 1998, Cain called Wise

and Grebe to tell t hem he was ready. They set the date and

time for sending the Declaration of War for the following

evening.

Grebe arrived at Cain’s residence on 12 June 1998, and as

planned, the Declaration of War was sent via e-mail to the

United States Department of Justice, the DEA, the United

States Treasury, the FBI, the United States Customs, and the6 Grebe designated the government agencies to receive the Declaration of War e-mail.

7 At this time, Cain became a paid government informer. Cain committed to testifying against Appellants and

requested FBI witness protection.

8 Wise and Grebe also chose as initial victims the family members of IRS employees.

9 Bureau of Alcohol, Tobacco, and Firearms. 6 Cain called Wise

to tell him that the Declaration of War had been sent. A tape

recording of their conversation indicates that Wise was aware

that the e-mails would be sent and was abreast of the

situation overall.

After the first set of e-mails were sent, Cain continued

to meet with Wise and Grebe. 7 Grebe raised the notion of

taking the next step, namely sending the follow-up letter to

the Declaration of War. Moreover, both Wise and Grebe

discussed who should be the firs t targeted victim, and they

chose a Texas state judge whom Roberts purportedly disliked

because she had not allowed ROT members to defend themselves

pro se in her Texas state court. 8 They planned to stalk her,

learn her movements, and attack at the right moment. Wise

suggested the use of rabies or botulism toxins for the

d elivery device and discussed ways to make botulism. Wise

told the others that he already had purchased the parts to

convert the Bic® lighters into delivery devices. After that

meeting, Cain immediately called Agent Sha rkey, who in turn

advised Cain that the situatio n had become more serious now9 The e-mails in fact were received by the intended recipients, as proved by the government during trial.

10 that a particular person was targeted.

On 26 June 1998, Wise and Grebe progressed to the second

step in their plan, that is, to send out the follow-up letter.

Cain typed the Rossotti letter, provided by G rebe, into his

home computer in Grebe’s presence and left blanks for the

names and e-mail addr esses of the intended recipients. The

event was captured on a videotape. Wise arrived and reviewed

the letter as well as the changes that Grebe had suggested.

Grebe propose d, and Wise agreed, that they send the e-mail

first to Rossotti, Commissioner of the IRS. Wise and Grebe

told Cain the order in which to send the e-mails and spelled

out the names of the recipients for Cain to enter into the

computer. 9 After the second set of e-mails were sent, Wise

told the others that he thought he could have the delivery

devic e ready on the following week and again discussed

targeting the Texas state judge.

After retrieving the videotape of the eve nt, the FBI

downloaded the e-mail threats onto a hard disk and printed out

the mailing confirmations. Subsequently, the FBI recorded

conversations with Emigh and obtained arrest and search

warrants. Wise, Grebe, and Emigh were arrested on 1 July

1998. In an interview after his arrest, Emigh admitted that11

he had written the first draft of the Declaration of War.

Grebe denied ever having written or sent a threatening note or

having engaged in any discussion regarding biological weapons.

Grebe later modified his answer by stating that he had been

present when the e-mails were sent but that he had been in the

room at the time merely for the purpose of using the

photocopier. Wise also denied having any knowledge regarding

t he matter or having engaged in discussions of threats w ith

anyone.

Appellants’ residences were searched by a team of federal

and local agents. They found some dangerous chemicals at

Wise’s residence but no biological agents of the type that

Wise had discussed. In addition, in Wise’s living room were

discovered reading materials dealing with meats and chemicals,

as well as biomedical catalogues. No hazardous materials were

found in Grebe’s or Emigh’s residence.

B. Procedural History

On 4 August 1998, by superseding indictment Wise, Grebe,

and Emigh were ch arged with conspiracy to use or attempt to

use a weapon of mass destruction in violation of 18 U.S.C. §§

23 32a(a)(2) and (c)(2)(C) (Count 1), and with threatening to

use a weapon of mass destruction in violation of 18 U.S.C. §§

2332a(a)(2) and (c)(2)(C), and 18 U.S.C. § 2 (Counts 2 through12

8). Wise and Grebe were convicted by a jury on Counts 5 and

6, but acquitted on the remaining counts. Emigh was acquitted

on all counts. Both Wise and Grebe were sentenced to

concurrent 292-month prison terms, five years of supervised

release, and an aggregate $200 special assessment.

II. DISCUSSION

A. Applicable Standards of Review

We review a challenge to the suf ficiency of the

indictment, as well as a district court’s denial of a motion

for judgment of ac quittal, de novo. S ee United States v.

Richards

, 204 F.3d 177, 191 (5th Cir. 2000); United States v.

Burns

, 162 F.3d 840, 847 (5th Cir. 1998). A claim that the

evidence is insufficient to support a conviction is reviewed

in the light most favorable to the verdict, accepting all

credibility choices and reasonable inferences made by the

jury. S ee United States v. Lage

, 183 F.3d 374, 382 (5th Cir.

1999), cert. denied

, --- U.S. ----, 120 S. Ct. 1179, 145 L.

Ed. 2d 1086 (2000). This Court must uphold the conviction if

a rational jury could h ave found that the government proved

the essential elements of the crime charge d beyond a

reasonable doubt. S ee id. Such standard of review is the

same regardless of whether the evidence is dir ect or

circumstantial. See id.13 The standard of review appli ed to a defendant’s claim

that a jury instructi on was inappropriate is “whether the

court’s charge, as a whole, is a correct statement of the law

and whet h er it clearly instructs jurors as to the principles

of the law applicable to the factual issues confronting them.”

See United S tates v. Sharpe , 193 F.3d 852, 871 (5th Cir.

1999)(quoting United States v. August

, 835 F.2d 7 6, 77 (5th

Cir. 1987)), cert. denied

, --- U.S. ----, 120 S. Ct. 1202, 145

L. Ed. 2d 1105 (2000). In determining whether the evidence

reasonably sup ports the jury charge, this Court views the

evidence and all reasonable inferences that may be drawn

therefrom in the light most favorable to the government. S ee

id.

With regard to prosecutorial misconduct, criminal

defendants bear a substantial burden when they attempt to show

that prosecutorial misconduct constitutes reversible error.

See United States v. Wyly

, 193 F.3d 289, 298 (5th Cir. 1999).

“‘A conviction shoul d not be set aside if the prosecutor’s

conduct

. . . did not in fact contribute to the guilty verdict

and was, th e refore legally harmless.’” I d. (quoting United

States v. Johnston , 127 F.3d 380, 390 (5th Cir. 1997), c ert.

denied

, 522 U.S. 1152, 118 S. Ct . 1173, 140 L. Ed. 2d 183

(1998). Finally, the proper standard for reviewing a district

court’s admission or exclusion of expert testimony is abuse of10 Section 2332a was enacted under the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-

322, § 60023(a), 108 Stat. 1980 (1994).

14 discretion. S ee General Electric Co. v. Joiner

, 522 U.S. 136,

143, 118 S. Ct. 512, 517, 139 L. Ed. 2d 508 (1997); M oore v.

Ashland Chemical Inc. , 151 F.3d 269, 274 (5th Cir. 1998).

B. Issues on Appeal

1. “Without Lawful Authority” Provision

Appellants first argue that the evidence was insufficient

to sustain their conviction because the charges fa iled to

include the phra s e “without lawful authority,” which

Appellants allege is an essential element of an offense under

18 U.S.C. § 2332a. On the other hand, the government argues

that the indi c tment sufficiently alleged the elements of 18

U.S.C. § 2332a in charging that Appellants k nowingly and

intentionally threatened to use a weapon of mass destruction,

in violation of 18 U.S.C. §§ 2332a(a)(2) and (c)(2)(C), and 18

U.S.C. § 2. According to the government, the “without lawful

authori t y” provision is not an essential element of the

offense but rather an affirmative defense, the burden of which

was on the defendants to prove. This matter presents an issue

of first impression, as we are asked to interpret the language

of 18 U.S.C. § 2332a.

Section 2332a, enacted in 1994, 10 is a r elatively new

statute with little legislative history or established case15

law. In 1996, Congress amended the statute in connection with

the enactment of the Antiterrorism and Effective Death Penalty

Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996)

(“AEDPA”). The amendment, among other things, substituted the

words “without lawful authority, uses, threatens, or attempts”

in lieu of “uses, or attempt s.” No case thus far has

addressed the issue of whether the phr ase “without lawful

authority” is an element of a § 2 332a offense or an

affirmative defense thereto, and no case discusses the present

version of the statute in the context of thr eatened use of a

biological agent.

Section 2332 a arguably was intended to supplement 18

U.S.C. § 175, also known a s the Biological Weapons AntiTerrorism Act of 1989. Section 175(a) prohibits the

development, production, stockpili ng, transfer, acquisition,

r etention, or possession of any biological agent, toxin, or

delivery system for use as a weapon. S ee 18 U.S.C. § 175(a).

The “Bi ological Weapons Convention of 1972,” in which the

United States took part, p r eserved the right of the

participating nations to devel o p biological agents for

legitimate research and peaceful purposes. Congress exercised

such right by creating an exception under 18 U.S.C. § 175(b)

for the “development, production, transfer, acquisition,

retention, or possessi o n of any biological agent, toxin, or16

delivery syste m for prophylactic, protective, or other

peaceful pur poses.” It is a “well-established rule of

criminal statutory construction that an exception set forth in

a distinct clause or pro vision should be construed as an

affirmative defense and not as an essential element of the

crime.” U nited States v. Santos-Riviera

, 183 F.3d 367, 370-71

(5th Cir.), cert. denied

, --- U.S. ----, 120 S. Ct. 597, 145

L. Ed. 2d 496 (1999). The exception provided in subsection

(b) of 18 U.S.C. § 175, therefore, is not an essential element

but rather an affirmative defense for whic h the defendants

bear the burden of proof. A ccord id. at 370; United States v.

Green

, 962 F.2d 938, 941 (9th Cir. 1992)(“a defendant w h o

relies upon an exception to a statute made by a proviso or

distinct clause, whether in the same section of the statute or

elsewhere, has the burden of establishing and showing that he

comes within the exception”).

Arguably, the inclusion of t he phrase “without lawful

authority” in the amendment to § 2332a serves the same purpose

of preserving the exception that was recognized by the

Convention. In § 511(a) of AEDPA, Congress made explicit

findings t hat certain biological agents pose a severe threat

to public health and safety, that such agents can be used as

weapons for criminal purposes, that regulation of such agents

is necessary to pr otect public health and safety, and that17

“ef forts to protect the public from exposure to such agents

should ensure that in dividuals and groups with legitimate

objectives continue to have access to such agents for clinical

and research purposes.” H.R. C ONF

. R EP

. N O

. 104-518 (1996). It

would be fair to say, then, that the inclusion of the phrase

“without law ful authority” in § 2332a to modify the term

“person” was intended to except persons who are authorized by

the appropriate authorities to use hazardous biological agents

for legitimate purposes.

In fact, Congress made that very point in its discussion

of 18 U.S.C. § 831, a parallel statute which punishes anyone

who, “without lawful authority,” intentionally receives,

possesses, uses, transfers, alters, disposes of, or disperses

any nuclear material and thereby knowingly causes the death of

or serious bodily injury to any pe r son or substantial damage

to prope rty, or knows that circumstances exist which are

likely to cause such a result. S ee 18 U.S.C. § 831(a)(1).

The legislative history of this sta t ute explains the phrase

“without lawful authority” to except from criminal prosecution

those perso ns whose conduct falls within the scope of their

employment. See H.R. R EP

. N O . 97-624 (1982).

Furthermore, it is arguable that the phrase “without

lawful authority” in § 2332a is similar in effect to the

“except as autho rized” phrase found in the Title 21 drug18

statutes. Under 21 U.S.C. § 841(a), distribution of a

controlled substance is made illegal unless the person is

authorized by the statute to distribute; the burden is on the

defendan t to prove that he falls within an excepted category

of persons. S ee United States v. Miranda

, 494 F.2d 78 3, 786

(5th Cir.), cert. denied

, 419 U.S. 966, 95 S. Ct. 228, 42 L.

Ed. 2d 181 (1974). This Court in M iranda made an instructive

distinction between that case and United States v. Leigh

, 487

F.2d 206 (5th Cir. 1973):

Miranda’s situation is d i fferent from the indicted

defendant in United States v. Leigh

. In L eigh

, the

indict m ent described the defendant as a medical

doctor (M.D.)

. . . . By identifying Leigh as a

medical doctor, the indictment place d him within a

class of persons who are registered to dispense

controlled substances as a matter of right. . . .

Thus as shown in the indictment, the defendan t was

a person w ho could lawfully distribute. The

i ndictment was dismissed because it did not allege

that the act of distribution was unlawful. Miranda,

however, does not fall within one of the registered

or exempted categories of people an d there is

nothing in the indictment which raises this

possibility. The distribution of heroin by Miranda

as alleged in the indictment could not be lawful.

Miranda

, 494 F.2d at 786 (cit ations omitted). Likewise, in

the instant case the indictment was sufficient even without

the phrase “without lawful authority.” Wise and Grebe are not

persons who lawfully could threaten to use a weapon of mass

destruction, ever

. Put another way, Appellants are not

persons who would ever have lawful authority to threaten to19

use a weapon of mass destruction. The reason is that there is

no instance wherein such a threat by a private citizen, acting

for himself, would be lawful. There is merit to the

government’s argument, then, that “it is inc onceivable and

defies common logic that Congress intended to require the

Unite d States to prove a person is unauthorized to t hreaten

( which was defined under the charge as ‘a serious state ment

expres sing an intent to injure any person . . .’) to use

weapons of mass destruction.” (Appellee’s Br. at 48)

(emphasis in original). Moreover, the threatened use of

hazardous biological agents would violate th e Biological

Weapons Conventio n of 1972, the very agreement that the

statute was designed to implement. This Court need not apply

technical rules of statutory construction to achieve an

unintended result. S ee United States v. Wallington

, 889 F.2d

573, 576-77 (5th Cir. 1989)(o bserving the Supreme Court’s

instruction that “looking beyond the naked text for guidance

is perfectly proper when the result it apparently decrees is

difficult to fathom or where it seems incons i stent with

Congress’ intention, since the plain-meaning rule is rather an

axiom of experience than a rule of law, and does not preclude

co nsideration of persuasive evidence if it exists” (internal

quotations omitted)). The phrase “without lawful authority”

in § 2332a is an exception that modifies the term “person”; as20

such, it constit utes an affirmative defense rather than an

essential element. Accordingly, this Court agrees with the

district court that th e indictment in this case sufficiently

alleged the elements of an offense under 18 U.S.C. § 2332a

without inclusion of the phrase “without lawful authority.”

2. Aiding and Abetting Government Agent

Second, Appellants c o ntend that the evidence was

insufficient to su s tain the jury’s verdict as to counts five

and six of the indictment because Appellants had not acted

“without lawful authority.” Their argument is as follows: (1)

Cain, who was acting for the government, was authorized by the

FBI to send the e-mails and, thus, his actions were lawful;

(2) since the actions of Cain, as the principal, were lawful,

the actions of Appellants, as aiders and abetters, als o were

lawful; (3) Appellants, therefore, did not act “without lawful

authority,” as Section 2332a(a) would require; (4) since

Section 2332a(a) was not violated, the jury’s verdict, finding

Appellants guilty as to counts five and six, was erroneous.

Appellants appear to confuse aidin g and abetting with

conspiracy. There is a distinction between the two theories.

As this Court ex plained in U nited States v. Bright

, 630 F.2d

804 (5th Cir. 1980):

The essence of conspiracy i s proof of a

conspirator ial agreement while aiding and abetting

requires there be a “community of unlawful intent”11 Accord United States v. Meinster , 619 F.2d 1041, 1046 (4th Cir. 1980)(upholding conviction for aiding and abetting

drug smuggling and rejecting appellants’ claim that “the absence of a guilty principal precludes their conviction on aiding and

abetting charges”); United States v. Gould , 419 F.2d 825, 826 (9th Cir. 1969)(per curiam)(upholding conviction for aiding and

abetting smuggling of marijuana even though there was no “guilty principal” because drugs actually were “smuggled” over the

border by government informant). But see United States v. Washington , 106 F.3d 983, 1003-04 (D.C. Cir.)(there must be

21 between the aider and abettor and the principal.

While a community of un lawful intent is similar to

an agreement, it is not the same. Thus a defendant

may wittingly aid a criminal act and be liable as an

aider and abettor, but not be liable for conspiracy,

w hich requires knowledge of and volun tary

participation in an agreement to do an illegal act.

“As a matter of law, aiding and abetting the

commission of a crime and conspiracy to commit that

crime are separate and distinct offenses.”

Id. at 813 (citations omitted). Wise and Grebe were acquitted

on the conspiracy c ount (Count 1), but were convicted on two

counts of knowingly and intentionally threatening to use a

weapon of mass destruction, in violation of 18 U.S.C. §§

2332a(a)(2) and (c)(2)(C), and 18 U.S.C. § 2. Section 2

provides:

(a) Whoever commits an offense against the United

States or aids, abets, counsels, commands, induces

or procures its commission, is punish able as a

principal.

(b) Whoever willfully causes an act to be done

which if directly performed by him or another would

be an offense against the United States, is

punishable as a principal.

18 U.S.C. § 2.

Under Fifth Circuit jurisprudence, an aiding and abetting

conviction for a completed substantive offense may stand even

if the principal is a go vernment agent with no guilty intent

and theref o re no substantive crime actually was committed. 11guilty principal before there can be aider and abettor, and accomplice and principal must have “shared intent”), cert. denied

,

522 U.S. 984, 118 S. Ct. 446, 139 L. Ed. 2d 382 (1997).

12 Moreover, one could argue that Wise and Grebe were each a principal in this case and that they aided and abetted

one another in the commission of the crime under 18 U.S.C. §§ 2332a(a)(2) and (c)(2)(C), in violation of 18 U.S.C. § 2.

22 See U n ited States v. Moreno

, 878 F.2d 817, 821 (5th

Cir.)( r ejecting argument that defendant committed no crime

since she aided and abetted informant acting for government),

cert. denied

, 493 U.S. 979, 110 S. Ct. 508, 107 L. Ed. 2d 510

(1989); Haynes v. United States

, 3 19 F.2d 620, 621-22 (5th

Cir. 1963)(defendant who arranged drug smuggling by informant

could be convicted for importing that substance e v en though

informant wa s government agent). Wise and Grebe, therefore,

may be found guilty of aiding and abetting a crime e ven if

Cain’s action s were authorized by the government, and their

a rgument to the contrary is without merit. 1 2 The fact that

Cain’s actions were authorized does not mean necessarily that

Wise and Grebe could not have acted “without lawful authority”

because they were in the same venture. Appellants’ argument,

therefore, fails.

3. Interstate Commerce Element

The third issue raised is wh ether the district court

abused its discretion in refusing to charge the jury that the

offense must have “substantially a ffected” interstate

commerce. The district court gave the following jury

instruction, in relevant part:23 Title 18, United States Code, Section 2 3 32a

makes it a cr ime for anyone to threaten to use a

weapon of mass destruction against any person within

the United States and results of such use would have

affected interstate or foreign commerce.

For you to find the Def e ndant guilty of this

crime, you must be convinced that the government has

proved each of the following beyond a reaso nable

doubt:

Fir st : That the defendant intentionally and

kno wingly threatened to use a weapon or weapons of

mass destruction;

Second : That the weapon or weapons of mass

destr u ction were threatened to be used against

persons within the United States as specifically

alleged in Counts 2-8;

Third : That the results of such use would have

affected interstate or foreign commerce.

(18 R., Attach. at 29-30.) In essence, Appellants argue that

the district court erred in refusing to instruct the jury that

a violation of 18 U.S.C. § 2332a(a) requires a finding by them

of a substantial effect on interstate commerce.

Section 2332a(a) provides in relevant part:

A person who, without lawful authority, uses,

threatens, or attempts or conspires to use, a weapon

of mass destruction

. . . , including any biological

agent, toxin, or vector (as those terms are defined

in section 178)

. . . against any person within the

United States, and the results of su c h use affect

interstate or foreign commerce or, in the case of a

threat, attempt, or conspiracy, would have affected

interstate or foreign commerce

. . . shall be

imprisoned for any term of years or for life . . .

.

18 U.S.C. § 2332a(a)(2). Appellants were convicted on two

counts of threatening to use a weapon of m ass destruction,

namely a biological agent and a weapon involving a disease24

organism, against persons within the Unite d States. The

statute on its face makes clear that, in the case of a threat,

it applies where the results would have affected interstate or

foreign commerce. The jury instruction in this case tracked

the language of the statute by making as an essential element

the government’s proof beyond a reasonable dou bt that the

results of use of the weapon of mass destruction would have

affected interstate or foreign commerce. The statute does not

require, in the case of a threat, an actual or substantial

effect on commerce; it requires only a showing that the use

w ould have affected commerce. S ee 18 U.S.C. § 2332a(a)(2).

The jury instruction given by the court below, therefore, was

proper.

In any event, the e-mails, which had been sent from

Texas, were received by government agencies outside of Texas.

For example, the FBI received the e-mails in California; the

United States Customs received the e-mails at its website in

V irginia; the ATF, the Secret Service, and the Offic e of

Correspondence for the President all r eceived the e-mails in

Washington, D.C. The threat itself crossed state boundaries;

therefore, it cannot be argued that an effect on interstate

commerce is lacking in this case.

Appellants call into question the sufficiency of the

evidence as to the effe ct on interstate commerce.25

Specifically, Appellants allege that the government failed to

present any testimony or documentary evidence that the use of

the weapon specified in the threat would have affected

interstate commerce. As previously discussed, the e-mails,

which had been sent by Appellants from Texas, were received by

government agencies outside of Texas. The threat itself,

therefore, crossed state boundaries. Since the IRS and the

DEA are located outside of, and recei ved the threat letters

outside of, Texas, logic dictates that had Appellants actually

carried out their threat, th eir action would have had

consequences outside of Texas, where the IRS and the DEA are

located. Viewing the evidence in the light most favorable to

the jury’s verdict, a rational trier of fact could have found

th at the interstate commerce element was satisfied in this

case beyond a reasonable doubt.

4. Improper Closing Argument

The fourth point of contention is whether the prosecutor

made improper remarks during his closing argument that

impermissibly affected the verdict. Appellants argue that the

government committed reversible error by making a reference to

the Oklahoma City bombing during c losing argument, in

violation of its agreement with Appellants not to ma ke such

reference. Prior to trial, Appellants had filed a motion in

limine requesting that the government be precluded from making26

any general or specific reference to the Oklahoma City bombing

or oth er similar happening, to which motion the prosecutor

agreed.

In revie w ing an assertion of prosecutorial misconduct,

this Court employs a two-step analysis. First, we initially

must decide whether or n ot the prosecutor made an improper

remark. S ee United States v. Gallardo-Trapero

, 185 F.3d 307,

320 (5th Cir . 1999), c ert. denied

, --- U.S. ----, 120 S. Ct.

961, 145 L. Ed. 2d 834 (2000). If an improper remark was

made, the second st ep is to evaluate whether the remark

a ffected the substantial rights of the defendants. S ee id.

In determining whether statements made by a pros e cutor were

improper, it is necessary to view th em in context. S ee id.

(citing United States v. Washington

, 44 F.3d 127 1

, 1278 (5th

Cir. 1995)). In this case, the prosecutor had agreed not to

make any general or specific reference to other crimes, acts

of violence, threats, attempts, or conspiracies, including the

Oklahoma City bombing. During closing argument, the

prosecutor argued that “John Cain does n ’t like to see people

get shot at schoolyards. He doesn’t like to see people get

bombs through the mail. He doesn’t like to see federal

buildings being blown up with truckloads full of manure.” (18

R. at 1199-1200.) After the district court overruled Wise’s

objection to such statements, the prosecutor continued: “Are27

we going to wait to see if that happens? You think the FBI or

the go vernment, if they found out that a truckload full of

manure was placed in a federal building that they would have

waited t o see what would happen if they knew it was going to

explode[?]” (18 R. at 1201.) The district court overruled

Greb e’s objection to those statements. Appellants are

correct: The prosecutor’s remarks made a general reference to

the kind of bombing that took place in Oklahoma City. Because

the prosecutor had agreed not to make such references, his

statements were improper.

I t is unlikely, however, that such remarks af fected

Appellants’ substantive rights. In determining whether the

prosecu t or’s remarks prejudiced Appellants’ substantive

rights, this Court assesses “(1) the magnitude of the

statement’s prejudice, (2) the effect of any cautionar y

instructions given, and (3) the strength of the evidence of

the defendant’s guilt.” G alla rdo-Trapero , 185 F.3d at 320

(internal quotations and citations omitted). With regard to

the first factor, “[t]he magnitude of the prejudicial effect

is tested by looking at the prosec utor’s remarks in the

context of the trial in which they were made and attempting to

elucidate their intended effect.” U nited States v. Fields

, 72

F.3d 1200, 1207 (5th Cir.), cert. denied

, 519 U.S. 807, 117 S.

Ct. 48, 136 L. Ed. 2d 13 (1996). At trial, the defense28

attempted to imp each Cain’s credibility and character. In

making the remarks at issue, the prosecutor apparently was

trying to rebut the defense’s attack against C ain by

portraying Cain as a good, responsible citizen, one who had

acted out of p ublic concern. Although that does not wholly

excuse the prosecutor’s violation of the agreement, given the

strident advocacy on both sides of this case and the numerous

pieces of evidence and issues placed before the jury, we

cannot say that the prosecutor’s statements overshadowed what

had come before and unduly prejudiced Appell a nts’ case. S ee

Gallardo-Trapero , 185 F.3d at 320-21.

Second, the district cour t helped to mitigate any

prejudicial effect of the prosecutor’s remarks by instructing

the jury to base their decision solely upon the testimony and

evidence presented. The court charged the jury as follows:

In [determ ining the facts], you must consider only

the evidence presented during the trial, including

the sworn testimony of the witnesses and the

exhibits. Remember that any statements, objections,

or arguments made by t he lawyers are not evidence.

. . . In the final analysis . . . it is your own

recollection and interpretation of the evidence that

controls the c a se. What the lawyers say is not

binding upon you.

. . . Your verdict must be based

solely on the leg a lly admissible evidence and

testimony.

(18 R., Attach. at 5.) Such instructions are presumed to be

followed unless an “overwhelming probability” exists that the

jury will be unable to follo w the instruction, and a “strong29

probability” tha t the effect of the improper statements is

devastating. S ee Gallardo-Trapero

, 185 F.3d at 321 (quoting

United States v. Tomblin

, 46 F.3d 1369, 1390 (5th Cir. 1995)).

There is no indication here that the jury was unable to follow

the instruction of the court below or that the effect of the

prosecutor’s remarks was “devastating.”

As to the third factor, the evidence of Appellants’ guilt

is strong, and in light of the pr e vious analyses of

Appellants’ sufficiency of t he evidence claims, it is

reasonable to find that “the remark by the g o vernment during

closing argument does not outweigh the strength of the

multifaceted evi d ence and testimony presented during trial.”

Id. Viewing the prosecutor’s statements in the context of the

entire case, this Court concludes that the statements did not

prejudice the substantive rights of Appellants.

5. Entrapment

The fifth issue presen t ed on appeal is whether the

district court abused its discretion in denying Appellants’

m otion for judgment of acquittal based on the defens e of

entrapment. Appellants argue that the district court erred in

denying their motion because the g o vernment’s actions

constituted entrapment as a matt er of law. We review a

district court’s denial of a motion for judgment of acquittal

de novo. S ee United Sta tes v. Reliford , 210 F.3d 285, 28830

(5th Cir. 2000 )

. Because such a motion is in effect a

challenge to the sufficiency of evid e nce used to convict, we

view the e v idence, any inferences to be drawn from the

evidence , and any required credibility determinations in the

light most favorable to the guilty verdict. S ee id. “The

jury’s verdict must be affirmed if ‘a ra tional trier of fact

could have found the essential elements of the offense beyond

a reasonable doubt.’” I d. at 288-89 (quoting United States v.

Medina , 161 F.3d 867, 872 (5th Cir. 1998), c ert. denied

, 5 2 6

U.S. 1043, 11 9 S. Ct. 1344, 143 L. Ed. 2d 507 (1999)). The

jury is free to choose among r e asonable constructions of the

evidence. S ee United States v. Ferguson

, 211 F. 3d 878, 882

(5th Cir. 2000).

The jury was given the Fifth Circuit patt ern jury

instruction on entrapment, which instruction was a correct

statement of the law and not erroneous. S ee United States v.

Brace

, 145 F.3d 247, 263 (5th Cir.), cert. deni ed , 525 U.S.

973, 119 S. Ct. 426, 142 L. Ed. 2d 347 (1998); Unite d States

v. Hernandez

, 92 F.3d 309, 311 (5th Cir. 1996). “When a jury,

which was fully charged on entrapment, rejects the defendant’s

entrapment defense, the applicable standard of review is the

same as that which applies to sufficiency of t he evidence.”

United States v. Rodriguez

, 43 F.3d 117, 126 (5th Cir. 1995).

Entrapment occurs “whe n the criminal design originates31

with the officials of the government, and they implant in the

mind of an innocent person the dispo sition to commit the

alleged offense and in d uce its commission in order that they

may prosecute.” S orrells v. United States

, 287 U.S. 435, 442,

53 S. Ct. 210, 212-13 (1932). Entrapment is an affirmative

defense with two related elements: government inducement of

the crime and a lack of predisposition on the part of the

defendant to engage in the criminal conduct. S ee Mathews v.

United States

, 485 U.S. 5 8, 63, 108 S. Ct. 883, 886 (1988).

Entrapment can be disproved by proving bey ond a reasonable

doubt either that the defendant was not induced or that he was

predisposed to commit the crime. S ee United S t ates v.

Thompson

, 13 0 F.3d 676, 689 (5th Cir. 1997)(quoting U nited

States v. El-Gawli

, 837 F.2d 142, 147 (3d Cir. 1 988)), cert.

denied

, 524 U. S. 920, 118 S. Ct. 2307, 141 L. Ed. 2d 166

(1998).

In this case, the evidence supports a finding of

Appellants’ predisposition to comm it the crime.

Predisposition focuses on whether the defendant was an “unwary

innocent” or instead an “unwary criminal” who readily availed

himself of the opportunity to perp etrate the crime. S ee

Brace

, 145 F.3d at 254-55 (quoting Mathews v. United Sta t es

,

485 U.S. 58, 63, 108 S. Ct. 883, 8 8 6 (1988)). “The active,

enthusiastic parti cipation on the part of the defendant is32

enough to allow the jury to find predisposition.” R odriguez

,

43 F.3d at 126-27.

Wise and Grebe, on their own initiative, went t o Cain’s

residenc e on 29 April 1998 and asked Cain to find the e-mail

addresses of various government ag encies. Apparently, the

re ason for Appellants’ request was that they wanted to send

threatening messages to the agencies and their employees. At

that time, Wise discussed t he idea of using diseases to

threaten persons and his proposal to convert a Bic® lighter

into a lethal dart gun device. Moreover, Wise and Grebe, on

t heir own initiative, asked Cain if it would be possible to

send anonymous messages through the internet, without being

traced. In May 1998, Appellants gave Cain the Declaration of

War document to type into the computer. Grebe also gave Cain

the Rossotti l etter to type. Both documents were threat

letters to be sent to various government agencies specifically

chosen by Wise and Grebe. As Appellants had been the ones to

approac h Cain, rather than vice versa, with ideas to send

threat letters and even perhaps to act upon those threats, it

is clear that Appellants had the predisposition to commit the

crime for which they were convicted. At the very least, they

actively and enthusiastically participated in the crime, which

is sufficient to support a f inding of predisposition. S ee

Rodriguez , 43 F.3d at 126-27.33 Even were we to assume that predisposition is lacking in

this case, evidence exists to support a find ing that

Appellants were not induced by the gov ernment to commit the

crime . Again, Wise and Grebe instructed Cain to type the

documents, as well as the names and e-mail addresses of the

intended recipients, into the computer and to send the letters

vi a e-mail. In fact, according to Cain’s testimony,

Appellants u rged him to send the e-mails right away but Cain

did not because he was await ing FBI authorization. A

reasonable ju ry could find in this case that the government

did not induce Appellants to perpetrate the crime.

Appellants argue that the district court erred in failing

to instruct the jury on “predispositional en t rapment,”

presumably referring to the issue of “positional

predisposition” raised by another circuit in United States v.

Hollingsworth

, 27 F.3d 1196, 1200 (7th Cir. 1994), and briefly

discussed by this Court in United States v. Bra ce , 145 F.3d

247, 255 (5th Cir. 1998). We declined to review that issue in

Brace

, however, because it neither had been preserved at trial

nor even was presented to the panel for the first time on

appeal. S ee Brace

, 145 F.3d at 255. Appellants contend that

the positional predisposition issue is squarely before this

Court in this case since the issue was preserved at trial.

In Hollingsworth

, the court interpreted Jacobs o n v.34

United States , 503 U.S. 540, 112 S. Ct. 1535 (1992), to

require evidence that the defendant was “so situated by reason

of previous t raining or experience or occupation or

acquaintances that it is likely that if the government had not

induced him to commit the crime some criminal would have done

so.” H ollingsworth

, 27 F.3d at 1200. But see U nited States

v. Thickstun

, 110 F.3d 1394, 1397-98 (9th Cir.)(rejecting the

Holl ingsworth “positional predisposition” standard), cert.

denied

, 522 U.S. 917, 1 1 8 S. Ct. 305, 139 L. Ed. 2d 235

(1997). Importantly, the H ollingsworth co u rt acknowledged

that cases in which the defendant is not in a position without

the government’s help to become involved in illegal activity

“are rare.” Hollingsworth , 27 F.3d at 1200.

Furthermore, the Hollingsworth court articulated that it

“[did] not wis h to be understood as holding that lack of

present means to commit a crime is alone enough to establish

entrapment if t h e government supplies the means.” I d. at

1202. C f. United States v. Bradfield

, 113 F.3d 515, 522 (5th

Cir. 1997)(merely affordin g defendant opportunity or

facilities for commission of crime is insufficient to

establish inducement); United States v. Jackson

, 700 F.2d 181,

192 (5th Cir. 1983)(providing opportunity to commit crime does

not constitute improper gove rnment inducement). The court

then provided an example of a situation wherein the defendant13 The illustration given by the court was the following:

Suppose . . . [the defendant] had decided to smuggle arms to Cuba but didn’t know where to buy a suitable

boat. On a hunch, a government agent sidles up to [the defendant] and gives him the address of a boat

dealer; and [the defendant] is arrested after taking possession of the boat and setting sail, and is charged

with attempted smuggling. That would be a case in which the defendant had the idea for the crime all

worked out and lacked merely the present means to commit it, and if the government had not supplied

them someone else very well might have. It would be a case in which the government had merely furnished

the opportunity to commit the crime to someone already predisposed to commit it.

Hollingsworth , 27 F.3d at 1203.

14 Alternatively, Appellants might have sent the letters via U.S. postal mail, for instance, which would not have

changed the nature of the offense.

35 alr eady had the idea for the crime, the government supplied

the means to commit i t

, and the defendant, therefore, was

predisposed and not en t rapped. 13 No significant distinction

exists b e tween that illustration and the facts of this case.

Wise and Grebe had the idea of sending threat letters to

various government agencies planned out but merely lacked the

present means to send the letters via e-mail. If Cain had not

assisted them with regard ther eto, someone else very well

might have, as Appellan t s most likely would have looked

elsewhere for assistance. 14 Accordingly, contrary to what

Appell ants seem to believe, H ollingsworth does nothing to

support Appellants’ position. A jury instruction regarding

the issue of positional predisposition was required neither in

Hollingsworth nor in this case.

6. Spoliation

Appellants contend that sp oliation of evidence is at

issue in this case, and they argue t hat the district court36

erred in denying Appellants’ request for jury inst ruction on

spoliation. They argue in their support that the government

failed to comply with a discovery request for computer data;

that FBI Agent Sharkey did not seize Cain’s computer because

he did not consider the comp uter itself to constitute

“evidence”; and that as a result of not seizing the computer,

al m ost everything on the hard drive was lost when Cain

installed a new Windows 95 program in the computer.

An adverse inferen c e drawn from the destruction of

records is predicat ed on bad conduct. S ee Caparotta v.

Enterg y Corp. , 168 F.3d 754, 756 (5th Cir. 1999); V ick v.

Texas Employment Comm’n

, 514 F.2d 734, 737 (5th Cir. 1975).

Accord Eaton Corp. v. Appliance Valv es Corp. , 790 F.2d 874,

878 (Fed. Cir. 1986)(two conditions precedent are destruction

of evidence and bad faith); Coates v. Johnson & Johnson , 756

F.2d 524, 551 (7th Cir. 1985); Valentino v. United States

Postal Service

, 674 F.2d 56, 73 n.31 (D.C. Cir. 1982). A

district court has discretion to admit evidence of spoliation

and to instruct the jury on adverse in ferences. C f. Higgins

v. Martin Marietta Corp.

, 752 F.2d 492, 496 (10th Cir.

1985)(absent a showing of bad faith, failure to produce

records is insufficient to warrant a s poliation or missing

evidence instruction).

In the case before us, the g overnment did not destroy15 We note that the evidence at issue is Cain’s computer, not the data therein that inadvertently got lost.

37 Cain’s computer; in fact, the computer was not even in the

government’s custody. The fact is that Cain, the private

owner of the computer at issue, made a personal decision to

install a new program. As a result, some data in the computer

vanished or became irretrievable. As there is no evidence of

bad faith conduct by the government , the district court

pr o perly declined to instruct the jury on the issue of

spoliation of the evidence. 15 A ccord Williams v . Briggs Co.

,

62 F.3d 703, 708 (5th Cir. 1995)(no finding of spoliation

where the evid ence in issue was not destroyed or lost and

plaintiff offered no evidence to suggest defenda nt did

anything to alter the condition of the evidence in issue).

With regard to Appellants’ a rgument that the district

court’s failure to give a spoliation instruction deprived them

of the oppor t unity to attack effectively the mishandling of

evidence, Appellants co n fuse opportunity to litigate with

decision on the merits. The court below determined that an

instruction on spoliation was not warranted in this case. The

fact that the court so held does not mean that Appellants were

denied the opportunity to present their spoliati on claim.

This Court finds that Wise and Grebe were not “deprived of the

opportunity to effectively attack the mishandling of evidence”38

and that the district court did not abuse its discretion in

declining to give a jury charge on the issue of spoliation.

7. Agent Decker’s Expert Opinion Testimony

Last but not l e ast, Appellants argue that the district

court abused its discretion in permitting Supervisory Special

Agent R. Scott Decker (“Agent Decker”) to testify as an expert

during trial as to whether anthrax, rabies, HIV, and botulism

constitute biological agents under the definition of 18 U.S.C.

§ 178. We review a district court’s decision to admit or

exclude expert testimony for abuse of discretion. S ee United

States v. Matthews

, 1 78 F.3d 295, 304 (5th Cir.), c ert.

denied

, --- U.S. ----, 120 S. Ct. 359, 145 L. Ed. 2d 280

(1999). “Even assuming that an abuse of discretion occurred,

the erroneous admission of expert testimony i s subject to

harml e ss error analysis.” I d. (citing United States v.

Griffith , 118 F.3d 318, 323 (5th Cir. 1997)).

Agent Decker testified that he was the Bio l ogy Program

Manager in the Hazardous Materials Response Unit with the FBI.

His area of investigation involved weapons of mass

destruction. His training and expertise included a Bachelor

of Science in zoology from Rhode Island, a Ph. D. in human

genetics from the University of Michigan, and post-graduate

research on viral replication at Harvard University Medical

School. He co-authored eleven or twelve publications in the39

are a s of genetics, protein biochemistry, molecular biology,

and DNA replication. During his employment with the federal

government , Agent Decker worked with the Department of

Defense, Navy Research Laboratory at Fort Di etrich, and he

reviewed, in connection with this case, literature written by

experts on the topic of biological weapo n ry. Clearly, Agent

Decker had the qualifications t o be deemed an expert on

biological a g ents and weaponry, and it cannot be argued with

any seriousness to the contrary.

Agent Decker was familiar with 18 U.S.C. § 2332a (a

w e apon of mass destruction includes any biological agent or

toxin, as defined in § 178), and with 18 U.S.C. § 178(a)

(“biological agent” includes any micro-organism, virus, or

infectious substance ). He testified that, in his expert

opinion, botul ism toxin, HIV, and rabies fell within the

definition of “biological agent” under § 178, and he explained

why. The testimony of Agent Decker pertained to scientific

k nowledge and therefore was reliable. In the end, Agent

Decker’s testimony passes the D aubert analysis, and

Appellants’ arguments to the contrary are meritl ess. The

district court did not err in allowing Agent Decker to give

expert opinion testimony regarding biological agents. Even

were we to assume that an abuse of discretion occurred, the

erroneous admission of his e xpert testimony would be subject40

to harmless er r or analysis. Given the strength of the

government’s case against Appellants , the admission of Agent

Decker’s testimony would have constituted nothing more than

harmless error. Either way then, Appellants’ argument on this

issue fails.

III. CONCLUSION

The indictment sufficiently alleged the elements of an

offense under 18 U.S.C. § 2332a in charging that Appellants

intentionally and knowingly threatened to use a weapon of mass

destruction, in violation of 18 U.S.C. §§ 2332a(a)(2) and

(c)(2)(C), and 18 U.S.C. § 2. The evidence fully supports the

jury’s verdict as to counts five and six o f the indictment.

The district court did not abuse its discretion in refusing to

charge the jury that the offense “sub stantially affected”

interstate commerce. The evidence supports the jury’s finding

that Appellants caused a threat to use a weapon of mass

destruction to be communicated. Although the prosecutor made

improper remarks during his closing argument, such remarks did

not substantially affect the verdict. The district court did

not abuse its discretion in denying Appellants’ motion for

judgment of acquittal based on the defense of entrapment. The

district court properly declined to instruct the jury on the

issue of spoliation. And finally, the district court did not41

abuse its discretion in allowing Agent Decker’s expert opinion

t estimony. For these reasons, we deny the relief sought by

Appellants and AFFIRM the district court’s ruling and judgment

in all respects.

AFFIRMED