United States v. Osama Ayesh , 702 F.3d 162 ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 11-4266
OSAMA ESAM SALEEM AYESH,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, Senior District Judge.
(1:10-cr-00388-TSE-1)
Argued: September 20, 2012
Decided: December 18, 2012
Before TRAXLER, Chief Judge, DAVIS, Circuit Judge, and
Max O. COGBURN, Jr., United States District Judge
for the Western District of North Carolina,
sitting by designation.
Affirmed by published opinion. Judge Cogburn wrote the
opinion, in which Chief Judge Traxler and Judge Davis
joined.
2 UNITED STATES v. AYESH
COUNSEL
ARGUED: Alan Hideto Yamamoto, Alexandria, Virginia, for
Appellant. Ellen Ruth Meltzer, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Appellee. ON
BRIEF: Neil H. MacBride, United States Attorney, Alexan-
dria, Virginia; Lanny A. Breuer, Assistant Attorney General,
Criminal Division, Greg D. Andres, Acting Deputy Assistant
Attorney General, Criminal Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appel-
lee.
OPINION
COGBURN, District Judge:
Appellant Osama Esam Saleem Ayesh ("Ayesh") appeals
from a criminal judgment entered following a jury trial in the
United States District Court for the Eastern District of Vir-
ginia. Ayesh was convicted by a jury on two counts of theft
of public money (Counts 1 and 2), violations of 18 U.S.C.
§ 641, and on one count of committing acts affecting a per-
sonal financial interest (Count 3), a violation of 18 U.S.C.
§ 208(a). The District Court sentenced Ayesh to concurrent
terms of imprisonment of 42 months on each count, followed
by three years of supervised release. The District Court also
ordered Ayesh to pay a fine of $5,000 and restitution of
$243,416. On appeal, Ayesh contends that the district court
improperly exercised extraterritorial jurisdiction over him for
the counts of conviction, that it incorrectly denied his Motion
to Suppress his post-arrest statements, and that the evidence
was insufficient to sustain Ayesh’s convictions for theft of
public money. Finding no error, we affirm the district court.
UNITED STATES v. AYESH 3
I.
A.
On appeal, we consider the facts presented at trial in a light
most favorable to the government, as the prevailing party at
trial. United States v. Jefferson, 674 F.3d 332, 341 n.14 (4th
Cir. 2012). Ayesh, a resident of Amman, Jordan, was hired by
the U.S. Department of State to work as the shipping and cus-
toms supervisor at the U.S. Embassy in Baghdad, Iraq. While
there, Ayesh devised a scheme to divert United States funds
intended for shipping and customs clearance vendors to his
wife’s bank account in Jordan. As part of his scheme, Ayesh
established a phony email account, obtained a blank invoice
from a legitimate vendor, altered the document, and submitted
fraudulent invoices and wire transfers in the name of the ven-
dor. In addition, Ayesh also obtained self-inking signature
stamps for the legitimate vendor, and kept all such instrumen-
talities in his living quarters, which were located on the
grounds of the U.S. Embassy in Baghdad.
When U.S. officials suspected Ayesh’s wrongdoing, they
arranged for him to come to the United States under the pre-
text of attending a training seminar. Upon his arrival at Dulles
International Airport, in Chantilly, Virginia, Ayesh was
arrested and questioned by agents of the Federal Bureau of
Investigation (the "FBI") and the U.S. Department of State
(the "DOS"). After about five hours of questioning, Ayesh
confessed.
B.
On October 15, 2010, a grand jury returned a three-count
indictment against Ayesh, charging him in two counts with
theft of public money, in violation of 18 U.S.C. § 641, and in
one count with committing acts affecting a personal financial
interest, in contravention of 18 U.S.C. § 208(a). The district
court denied Ayesh’s motions to dismiss for lack of jurisdic-
4 UNITED STATES v. AYESH
tion, and to suppress his post-arrest statements. On February
2, 2011, a jury convicted Ayesh on all counts.
II.
On appeal, Ayesh presents three contentions of error. First,
Ayesh contends that the district court improperly exercised
extraterritorial jurisdiction over him for violations of 18
U.S.C. §§ 208(a) and 641 occurring in Baghdad, Iraq. Second,
he contends that the district court incorrectly denied his
motion to suppress his post-arrest statements made to agents
of the FBI and DOS upon his arrival at Dulles. Third, Ayesh
contends that there was insufficient evidence to sustain his
convictions for theft of public money. We address each con-
tention in turn.
A.
In his first contention, Ayesh argues that the district court
lacked extraterritorial jurisdiction over him for acts that
occurred outside the United States. Whether the district court
had subject matter jurisdiction is a question of law subject to
de novo review. United States v. Barton, 26 F.3d 490, 491
(4th Cir. 1994).
"Congress has the authority to apply its laws, including
criminal statutes, beyond the territorial boundaries of the
United States." United States v. Dawn, 129 F.3d 878, 882 (7th
Cir. 1997). See also United States v. Bowman, 260 U.S. 94,
97-98 (1922). Whether Congress has exercised that authority
is a matter of statutory construction and, generally, statutes
enacted by Congress, including criminal statutes, apply only
within the territorial jurisdiction of the United States. EEOC
v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991).
The Supreme Court in Bowman held that if Congress
intends for overseas crimes "against private individuals or
their property . . . which affect the peace and good order of
UNITED STATES v. AYESH 5
the community," to be punished in this country, "it is natural
for Congress to say so in the statute, and failure to do so will
negative the purpose of Congress in this regard." Bowman,
260 U.S. at 98. But that is not the end of the analysis. The
Court went on to say that "the same rule of interpretation"
should not be applied to criminal statutes that are "not logi-
cally dependent on their locality for the government’s juris-
diction, but are enacted because of the right of the
government to defend itself against obstruction, or fraud
wherever perpetrated, especially if committed by its own citi-
zens, officers, or agents." Id. (emphasis added). In such cases,
congressional intent may be "inferred from the nature of the
offense." Id. The Court added that to apply such a statute only
territorially would "[g]reatly . . . curtail the scope and useful-
ness of the statute and leave open a large immunity for frauds
as easily committed by citizens on the high seas and in for-
eign countries as at home." Id.Clearly, as with the statute in Bowman criminalizing fraud
against a corporation in which the United States is a stock-
holder, congressional intent to exercise overseas jurisdiction
can be inferred from the nature of the offenses criminalized
by 18 U.S.C. §§ 208(a) and 641. Otherwise, government
employees, contractors, or agents like Ayesh—be they United
States citizens or foreign nationals—would be at liberty to pil-
fer public money or engage in acts of self-dealing with impu-
nity so long as they did so abroad. Thus, we find that the
district court’s exercise of extraterritorial jurisdiction was
consistent with Congress’s intent that 18 U.S.C. §§ 208(a) and
641 be applied abroad.
We further find that extraterritorial application of these
statutes comported with international law. See Murray v. The
Schooner Charming Betsy, 6 U.S. (2 Cranch.) 64, 118 (1804)
("an act of Congress ought never to be construed to violate the
law of nations if any other possible construction remains").
The district court’s exercise of jurisdiction is supported by the
protective principle of international law, which "permits a
6 UNITED STATES v. AYESH
nation to assert subject matter criminal jurisdiction over a per-
son whose conduct outside the nation’s territory threatens the
national interest." United States v. Alomia-Riascos, 825 F.2d
769, 771 (4th Cir. 1987). Extraterritorial jurisdiction was also
appropriate under the territorial principle, which permits juris-
diction "over all acts which take effect within the sovereign
even though the author is elsewhere." Rivard v. United States,
375 F.2d 882, 886 (5th Cir. 1967) (citing Ford v. United
States, 273 U.S. 593 (1927)). Both statutes criminalize con-
duct that has effects within the United States and threatens the
operation of this nation’s governmental functions.
Finally, the district court’s exercise of extraterritorial juris-
diction comported with due process. See United States v.
Brehm, 691 F.3d 547, 552 (4th Cir. 2012). As the district
court noted, Ayesh’s "employment with the Department of
State at the United States Embassy in Baghdad was central to
the commission of his alleged crimes." J.A. 1384. Moreover,
Ayesh lived on the embassy compound, and was provided
with a copy of the Foreign Service National Handbook, which
advised him that he was subject to the laws and regulations
of the United States. Id. at 687, 693–94. 698.
Thus, despite the fact that Ayesh is a foreign national and
all of the acts occurred in Jordan and Iraq, the district court
properly exercised extraterritorial jurisdiction over him. Find-
ing no error in the district court’s denial of Ayesh’s motion
to dismiss, we affirm.
B.
In his second contention, Ayesh argues that the district
court incorrectly denied his motion to suppress his post-arrest
statements to FBI and DOS agents. In reviewing a district
court’s ruling on a motion to suppress, this Court reviews the
lower court’s factual findings for clear error and its legal con-
clusions de novo. United States v. Richardson, 607 F.3d 357,
369 (4th Cir. 2010), cert. denied, 131 S. Ct. 427 (2010).
UNITED STATES v. AYESH 7
Because the district court denied the motion, this Court con-
strues the evidence in the light most favorable to the govern-
ment. United States v. Black, 525 F.3d 359, 364 (4th Cir.
2008).
1.
Ayesh argues here, as he did below, that because he made
the statements during a lengthy interview after traveling from
Jordan for 19 hours without sleep or food, the statements he
made upon his arrival in the United States were involuntary
and coerced.
It is undisputed that Ayesh was shadowed in his travels by
a DOS Office of the Inspector General ("OIG") agent, who
flew on the same plane and observed Ayesh after he landed
at JFK International Airport, in New York, and then, after a
six hour layover, at his final destination, Dulles. The record
below indicates that the agent remarked that Ayesh looked
"fine" upon arriving in New York.
After he retrieved his checked luggage in Dulles, Ayesh
was arrested in the baggage claim area at 12:34 p.m. Agents
took custody of his bags and transported him to an FBI office
directly outside the airport. They did not question Ayesh dur-
ing the ride, and when they arrived at the interview room a
few minutes later, they removed his handcuffs and offered
him food and drink, which he declined, and a bathroom break,
which he accepted.
At 12:55 p.m., FBI Special Agent John Longmire and
DOS-OIG Special Agent Lloyd Rawls began explaining to
Ayesh the reasons for his arrest, the charges filed against him,
and his Miranda rights. When the agents began speaking to
Ayesh, they asked him multiple times if he was sufficiently
fluent in English to conduct an interview and if he wanted an
Arabic translator. He declined, asserted that he was fluent in
English, and said that he could read, write, speak, and under-
8 UNITED STATES v. AYESH
stand the language. The agents provided an Advice of Rights
form to Ayesh in both English and Arabic, read the enumer-
ated rights verbatim to Ayesh, and explained the meaning of
each one to him.
Ayesh asked the agents some questions about expected
court procedures, and after providing Ayesh another bathroom
break, the agents adjourned to confer with the prosecutor.
About 15 minutes later, after they relayed the prosecutor’s
answers, Agent Longmire again reviewed the Advice of
Rights form with Ayesh, once more reading and explaining
each right listed. After Ayesh stated that he understood his
rights and initialed each line on the English version of the
form, Agent Longmire read the consent language to Ayesh,
who responded that he wanted to proceed without a lawyer
and signed the form at 1:42 p.m. Prior to signing, Ayesh never
said that he was tired, and never indicated to the agents in any
manner that he was fatigued.
The agents then began interviewing Ayesh. Ayesh paid
complete attention to the agents’ questions, had inflection in
his voice, was animated, and used hand gestures for emphasis.
He answered the questions in complete sentences and some-
times provided substantial detail in his responses. He took
notes during the interview and sometimes enhanced his
answers with illustrations. Ayesh never said that he was
fatigued or needed sleep, and he did not appear either physi-
cally or mentally tired. In short, there was nothing to indicate
that he was confused or not thinking clearly.
When the agents confronted Ayesh with evidence that con-
tradicted his responses, he smiled, laughed, and asked how
they knew the information. Ayesh took additional bathroom
breaks at 4:10 p.m. (for 20 minutes), and at 5:00 p.m. (for 5
minutes). He never requested a break that was not provided,
and the agents offered him food and drink on several occa-
sions. He declined each time, although Agent Longmire
observed Ayesh drinking from a water fountain during one of
UNITED STATES v. AYESH 9
the breaks. The interview concluded between 6:00 and 6:10
p.m. The FBI later inventoried the items in Ayesh’s carry-on
bag. They included six candy bars, a package of cookies, and
two packages of crackers. There also were roasted seeds scat-
tered throughout Ayesh’s bag. In all, the interview lasted less
than six hours.
2.
A statement is involuntary within the meaning of the Due
Process Clause when it is "extracted by . . . threats or vio-
lence" or "obtained by . . . direct or implied promises" or "the
exertion of . . . improper influence." Hutton v. Ross, 429 U.S.
28, 30 (1976). The pivotal inquiry is whether the defendant’s
will has been "overborne" or his or her "capacity for self-
determination critically impaired." United States v. Pelton,
835 F.2d 1067, 1071-72 (4th Cir. 1987) (citing Schneckloth v.
Bustamonte, 412 U.S. 218, 225 (1973)).
In determining whether a confession was voluntary, we
must examine the totality of the circumstances, including the
nature of the police activity, as well as the defendant’s situa-
tion. See Arizona v. Fulminante, 499 U.S. 279, 285 (1991).
Relevant considerations may include the length and nature of
the questioning, any promises or threats made, and any depri-
vation of essentials (e.g., food, water, sleep, and bathroom
breaks) imposed upon the defendant. United States v. Van
Metre, 150 F.3d 339, 348 (4th Cir. 1998) (confession volun-
tary despite 55-hour delay between arrest and arraignment
because defendant was not harmed, threatened, held in seclu-
sion, or deprived of food and rest). Other considerations may
include an assessment of the defendant’s personal attributes,
such as his age, education, intelligence, and mental state. Ful-
minante, 499 U.S. at 286 n. 2.
We conclude that the district court correctly determined
that Ayesh’s statements "were freely and voluntarily given."
The district court’s factual findings that Ayesh is intelligent,
10 UNITED STATES v. AYESH
highly educated, and of sufficient maturity and experience to
have understood his constitutional rights and communicated
effectively with his questioners are not clearly erroneous
based on the record before us. Indeed, Ayesh is fluent in writ-
ten and spoken English, he declined the agents’ offer of a
translator, he initialed each of his Miranda rights on the
Advice of Rights form, and he then signed the form indicating
that he understood his rights and that he was waiving them.
Further, as the district court noted, throughout the interview,
Ayesh "asked intelligent questions and spoke confidently on
his own behalf." J.A. 432. Clearly, an interrogation of less
than six hours is not of a "constitutionally offensive duration."
J.A 434. See United States v. Gray, 137 F.3d 765, 768, 772
(4th Cir. 1998) (holding that defendant’s statements were vol-
untary even though defendant had been handcuffed, left alone
in a police station room for almost two hours, then inter-
viewed for five hours).
Based on consideration of the totality of the circumstances
surrounding the interview, Ayesh’s will was not overborne
and his capacity for self-determination was not impaired.
Finding no error in the district court’s denial of the motion to
suppress, we affirm.
C.
Finally, Ayesh contends that there was insufficient evi-
dence to sustain his convictions on the two counts of theft of
public money. This court reviews challenges to the suffi-
ciency of the evidence de novo.1 United States v. Penniegraft,
1
The government contends that the court should apply a plain error stan-
dard, arguing that Ayesh failed to file a motion for acquittal under Fed. R.
Crim. P. 29. Appellee’s Br. 39-40. Close review of the joint appendix
reveals that nine days after verdict, Ayesh filed not one but two motions
for acquittal. See J.A. 10 (Docket Entries 75-76). The district court dis-
posed of such motions by written Order, id. (Docket Entry 93) & 2003,
which incorporated its oral decision on the Rule 29 motions announced
from the bench at the time of sentencing, J.A. 1945-51.
UNITED STATES v. AYESH 11
641 F.3d 566, 571 (4th Cir. 2011), cert. denied, 132 S. Ct. 564(2011). To establish a violation of the theft of public money
statute, the government must prove beyond a reasonable
doubt each of the following elements: (1) the defendant stole
or converted something of value for his own use; (2) the thing
of value belonged to the United States; and (3) the defendant
did so knowingly and with the intent to deprive the owner of
the use or benefit of the money. United States v. Rehak, 589
F.3d 965, 973 (8th Cir. 2009), cert. denied, 130 S. Ct. 2130(2010). Taken in a light most favorable to the government, the
jury had more than sufficient evidence to convict Ayesh, as
review of the trial transcript reveals that the government pro-
duced evidence as to each element.
Ayesh challenges the sufficiency of the evidence as to the
third element of the § 641 offenses, which requires that the
government prove that he had the intent to deprive the United
States of the use or benefit of the money. The fact that the
government may have actually received the specified goods
and services does not negate criminal intent.2 On this issue,
2
Indeed, at least four circuits—the First, Fifth, Seventh, and D.C. Cir-
cuits—have found that the Government need not prove an actual loss to
establish a violation of § 641. See United States v. Herrera-Martinez, 525
F.3d 60, 62, 64 (1st Cir. 2008) (affirming the conviction of a defendant
who used another person’s name and identifying information to obtain a
federal housing voucher); United States v. Milton, 8 F.3d 39, 41, 44 (D.C.
Cir. 1993) (affirming the convictions of two brothers who helped others
submit false claims for back pay under a settlement agreement between an
employer and the Equal Employment Opportunity Commission); United
States v. Barnes, 761 F.2d 1026, 1027–28, 1033 (5th Cir. 1985) (affirming
the convictions of two defendants who applied for and authorized fraudu-
lent livestock loans from the Farmers Home Administration, even though
the money had actually been used to buy livestock); United States v. Bai-
ley, 734 F.2d 296, 298–301 (7th Cir. 1984) (affirming the conviction of
a defendant attorney who had embezzled portions of loans issued by the
Farmers Home Administration). But see United States v. Collins, 464 F.2d
1163, 1164–65 (9th Cir. 1972) (reversing a conviction under § 641 after
finding that the money that the defendant had stolen by forging and nego-
tiating government-issued checks had belonged to a bank, not the govern-
ment).
12 UNITED STATES v. AYESH
the court instructed the jury in the definitional and concluding
instruction, as follows:
you may find the defendant guilty, even if you find
that the government received some service or benefit
as a result of the defendant’s action, or that the
defendant may thereafter have used some portion of
the United States Government funds to pay some
vendor for government services after the United
States Government funds were deposited in his
wife’s bank account in Jordan.
J.A. 1781. The government presented evidence that Ayesh
knew at the time he committed such acts that it was illegal to
keep any of the funds for himself. J.A. 1633. The evidence
was more than sufficient for the jury to find that Ayesh
intended to deprive the United States of the use and benefit
of the funds wired to his wife’s bank account.
We find that sufficient evidence was presented to the jury
as to each element of the charged § 641 offenses to sustain the
verdict, and, accordingly, we affirm the district court’s denial
of Ayesh’s Rule 29 motions.
III.
In sum, we affirm the District Court’s judgment in its
entirety.
AFFIRMED