Indictment in ricin case challenged

Lawyer for LR man cites flawed statute; U.S. has rebuttal

When a Little Rock man mixed up two Mason jars full of the deadly toxin ricin last year, it wasn’t listed among the toxins whose possession constitute a federal crime, a defense attorney contends.

In a motion filed last month on behalf of her 22-year-old client, Alexander Joseph Jordan, attorney Nicole Lybrand asked U.S. District Judge James Moody Jr. to throw out Jordan’s indictment.

Jordan, then 21, called 911 on Feb. 22, 2018, from his home on Horseshoe Loop, saying he feared he may have accidentally ingested the toxin while mixing up the liquid in a blender, using a recipe he found on the Internet after ordering the key ingredient — castor beans — from Amazon.com.

Jordan told a dispatcher he was having heart problems, diarrhea and blurred vision, and emergency officials who responded said he appeared to be breathing heavily when they arrived. But ultimately, neither Jordan nor anyone else was injured as a result of the substance, which can be lethal in doses as small as a pinhead.

According to testimony in a hearing last year, Jordan later told an FBI agent that he got the idea for making the concoction from the television show Breaking Bad, about a chemistry teacher who makes and sells methamphetamine to make money for his family. He said he didn’t want to hurt anyone else, but was considering using it to commit suicide.

If convicted in a jury trial scheduled to begin in January, Jordan faces a fine and up to five years in prison without the possibility of parole. But Lybrand, of the federal public defender’s office, says he shouldn’t even face a trial.

Lybrand argued last month

that even if Moody construes the updated version of the federal statute in question as applying to ricin, the case still must be dismissed because the statute was too vague, rendering it void.

At the time Jordan was indicted, Chapter 18, section 175b (c) of the U.S. Code allowed prosecution for the unregistered possession of a “select agent,” as identified in the statute, or of “certain other biological agents and toxins” under another section, Lybrand said. She said the term “select agent,” however, didn’t include any substance “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.”

In a response filed Tuesday, however, the U.S. attorney office countered that even if ricin wasn’t specifically listed as one of the agents or toxins whose unregistered possession is a federal crime at the time Jordan was charged, the congressional intent behind the statute has “always criminalized the unregistered possession of ricin.” They asked that Lybrand’s motion to dismiss be denied.

In anticipation of such an argument, Lybrand wrote last month that “Injecting such congressional intent would produce great ambiguity,” which would make “the rule of lenity” apply, which would require the indictment’s dismissal.

Both Lybrand and Assistant U.S. Attorney Stacy R. Williams cited the same case, U.S. v. Gibbs, to support their position.

Gibbs was decided on Sept. 21, 2018, by a federal judge in the Northern District of Georgia.

In dismissing the same charge that Jordan faces against William Christopher Gibbs, U.S. District Judge Richard Story of Georgia said that “the unavoidable conclusion is that ‘select agent’ under 18 U.S.C. Section 175b does not include ricin.” He dismissed the arguments of Gibbs’ prosecutors that Congress had intended to criminalize the possession of ricin but that its omission from the statute was merely “a clerical error.”

Story also noted that Congress “has had ample opportunity to amend the statute to make its definition of ‘select agent’ comport to the Government’s interpretation. It has been 14 years [since the law was written], and Congress is yet to do so.”

In Williams’ filing this week, she discussed years of congressional revisions of the statute and related federal regulations at length, saying that at one point, the U.S. Department of Health and Human Services “explained in its final rule how the new regulations should be construed in light of the reorganization” of sections pertaining to select agents and toxins. But she said the “clarifying language” was later removed from the regulations in 2008, in an apparent attempt to avoid redundancy.

After Story dismissed Gibbs’ indictment last year, the prosecutor said, “Congress quickly corrected the clerical error in the statute,” by amending the section in July of this year “to once again prohibit the unregistered possession of ricin just as it has always intended. In fact, Congress stated the purpose … was ‘to correct a scrivener’s error’ in the statute.”

While Lybrand argues that the corrected language wasn’t in place when Jordan was indicted, Williams argues that because the Gibbs case was decided before congressional action clarifying the original legislative intent, Gibbs doesn’t apply to Jordan’s case.